74 Ky.

Volume 74 — Kentucky Reports

104 opinions

74 Ky. 1Kuevan v. Specker (1875)
Case 1 — PETITION EQUITY APPEAL EROM CAMPBELL CIRCUIT COURT. CITED Bevised Statutes, chap. 40, sec. 2. Civil Code, secs. 25,8, 440, 474, 475, 476, 477. MS. Opinion, June, 1856, Hardin v. Halsell. •Scribner on Dower, 610. Washburn on Beal Property, 218. - . . MS. Opinion, October, 1874, Bandall v. Eandall. 8 Bush, 414, Whitaker v. Garnett. 7 Bush, 585, Place v. Bhem, &c. 6 Bush, 515, Lishy, &c. v. Perry, &c. 8 Bush, 28, Lockett’s adm’r v. James, adm’r. 6 Bush, 88, Dúgan v. Massey. 2 Bush, 70, Lowry v. Fisher, &c. 6 Paige, 465, Manhattan Co. v. Evertson. 14 Ohio Statutes, 298, Sears v. ILauks, &c. CITED Civil Code, sec. 474. 6 Paige, 465. Revised Statutes, 1 Stanton, p. 488, sec. 1. 5 Bush, 68, Harris v. Dale. 6 Bush, 86, Allen v. Perry. 1 Met. 897, Short v. Tinsley. ■
74 Ky. 7Lawhorn v. Carter (1874)
Case 2 — PETITION ORDINARY APPEAL FROM CLINTON CIRCUIT COURT. CITED General Statutes, chap. 37, sec. 25, p. 415. 2 Met. 139, Eyon v. Bean. 3 Met. 73, Combs v. Jefferson P. D, Co. 4 Met. 331, Buckets v. Lambert. 1 Met. 578, Smith v. Northern Bank of Kentucky. 17 B. Mon. 388, Tudor v. Tudor.
74 Ky. 11Roberts v. Phillips (1874)
Case 3 — PETITION EQUITY APPEAL PROM THE MARION CIRCUIT COURT. CITED Bigelow on Estoppel, pp. 10, 160. Act of March 10, 1856. CITED Civil Code, secs. 467, 469, 470, 120, 35, 40. Revised Statutes, 1 Stanton, pp. 556, 509, 555. Loughborough’s Digest, pp. 240, 241. Herman on Estoppel, pp. 48, 49, 103. 4 Binn. 11, Heller v. Jones. 22 Barb. 278. 34 Penn, 223. 9 Pick. 139. 14 Johnson, 572. 3 Sneed, 252.
74 Ky. 18Wheatly v. City of Covington (1874)
Case 4 — PETITION ORDINARY APPEAL FROM KENTON CIRCUIT COURT.' CITED Act of March 2, 1850, City Charter, pp. 22, 23, 24. Act of February 9, 1856, Covington City Charter, p. 41. American Corporation Cases, 283. 1 Ohio St. 268, Mays v.'Cincinnati. 2 Dillon on Mun. Corpor’ns, secs. 769, 770, 771. 1 lb. sec. 172. 12 Cush. 103, Vincent v. Nantucket. 14 Iowa, 494, Clark v. Davenport. 19 Iowa, 199, Clark v. Des Moines. 23 How. 435, 7 Ohio St. 31-36. 18 Ohio St. 523, Collins v. Hatch. 20 Iowa, 450, Ham v. Miller. CITED Acts 1849-50, p. 239. 2 Acts 1867-8, p. 427. Cooley’s Con. Lim. p. 77. ' Dillon on Mun. Corporations, sec. 767. 4 Bush, 482, Louisville City Railway Co. v. City of Louisville. 1 Selden, 285, Conner v. Mayor. 4 Wheaton, 627. 7 Hill, 8. 2 Denio. 272. 36 Barb. 169. 4 E. D. Smith. 430. 25 Wend. 680. 9 Dana, 128. 6 Mon. 643, White v. Clarke. 21 Pick. 67, Torrey v. Milbury. 37 N. Y. 518, Smith v. Mayor of New York. 19 N. Y. 326. 35 Cal. 21.
74 Ky. 23Whitesides v. Allen (1874)
Case 5 — PETITION ORDINARY APPEAL PROM PAYETTE CIRCUIT COURT. CITED 8 Bush, 491, Allen v. Allen. Act of February 14, 1866. 1 Bush, 62, Estill v. Rogers. 7 Bush, 654, Ewing v. Bibb. 2 Bush, 278, Stewart v. Munchandler, &c. CITED Civil Code, sec. 670. Act of February 14, 1866, Myers’s Supplement, 785.
74 Ky. 26Roberts v. McGraw (1874)
1. Exceptions must exhibit, the papers or evidence. — The Court of Appeals will not regard as error the exclusion of the record of another suit offered to he read to the jury as evidence where such • record was not made part of the bill of exceptions, or shown to have been a suit between the same parties or their privies. 2. Trespass oan not be maintained by a tenant in common, or one claiming under him, against his co-tenant. (4 Bibb, 422; 8 Dana, 163.) 3. Delivery oe possession is not necessary in passing title to real estate. — Although by the common law in order to transmit the title and the possession it was necessary that there should be livery or attornment, these requisites are now by our law dispensed with, and the transfer of the title and right of possession carries for many purposes the possession of the land.
74 Ky. 32Bohon v. Smith (1874)
Case 7 — PETITION EQUITY APPEAL PROM WOODPORD CIRCUIT COURT. CITED Civil Code, sections 133, 474, 518, 846. 8 Bush, 402, Maddox, &c. v. Fox, &e. ■ CITED 16 B. Mon. 181, Nixon v. Jack, &e. Civil Code, section 474.
74 Ky. 34Bell v. Farmers' Bank (1874)
Cases 8, 9 — PETITIONS EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Rev. Stat., chap. 63, sec. 16, art 4. Same, chap. 24, sec. 11. Code, sec. 108. Smith on Contracts, 9. 2 Ben. Mon. 206, Caufman v. Sayre. 1 Ben. Mon. 308, 309, Gates v. Jacob. 1 Dana, 276, Fenwick v. Macey. 8 Ben. Mon. 42, Theobald v. Hare. 3 Humph. Tenn. 464. 10 Ben. Mon. 180, 199. 8 Dowling & Ryland, 348, 364. 2 Bibb, 38, Chinoweth v. Williamson.' . ■ 4 Kent, 133. 3 Esp. 81. 7 Payne, 465. 2 W. & M. 371. 2 Hilliard, 169. 4 Day, 66. 2 S. & M. Miss. 687. 4 Bush, 438, 538. 1 Johnson C. R. 240. 19 Pickens, 535. 11 Ben. Mon. 102, Kennard v. Adams. CITED Revised Statutes, 1 Stanton, 256; 2 Stanton, 126, 127, chap. 63, art 3, secs. 1, 2. Civil Code, secs. 145, 479, 875. Story’s Equity Pleadings, secs. 351, 507, 751. Angelí on Limitations, sec. 92. 1Duvall, 206, Parsons v. Meyburg. 1 Littell, 302, Scott v. McMillen. 6 Bush, 440, Yeates v. Weeden. 4Bush, 538, Vandiver, &c. v. Hodge, adm’r. 8 Bush, 665, Hobson v. Hobson’s ex’r. 2 Har. 504, Pennel v. Weyant. 8 Watts, 9, Hannah v. Swarner. 8 Met. (Mass.) 45, Parker v. Hill. 4 Kent’s Commentaries, p. 454. 1 Johns. Ch’y, 297, Frost v. Beckman. 5 Vermont, 387, Denton v. Perry. 4'Gilm. 190, Hulick v. Scovil. 1 Russell & Mylne, 437. 2 Wend. 94. 7 Blackford, 439, Goodsell v. Stinson. 1 Den. 325, Elsey v. Metcalfe. 7 Wend. 308, Jackson v. Perkins. 5 McLean, 457, Bulkley v. Buffington. 3 Wall. 686, Younge v. Guilbeau. 6 Cowen, 617, Jackson v. Richards. 3 Met. (Mass.) 275, Samson v. Thornton. 7 Wend. 94, Jackson v. Sacket. 1 Mar. 421, Wilcoxen et al. v. Rix. 1 J, J. Mar. 408, Ingraham v. Arnold. 3 Dana, 482, Wenzell v. Breckinridge. 5 Dana, 324, Atcherson’s adm’r v. Tolbot. 2 B. Mon. 206, Caufman v. Sayre. 4 Met. (Ky.) 195, Willis v. Vallette. 2 Jacob & W. 234, Christopher v. Sparke. 5 I. R. 545, Giles v. Barremore. Ibid. 283, Waterman v. Haskins. 3 I. R. 383, Jackson v. Meyers. 2 Car. S. R. 614, Baker v. Evans. '9 Wheat. 497, Hughes v. Edwards. 11. Ch. R. 385, Moore v. Cabbie. 19 Perkins, 535, Thayer v. Man. 28 111. 44, Harrison v. Mills. 41 111. 521, Pollock v. Munson. 12 Texas, 432, Duty v. Graham. 23 Texas, 561, Perkins v. Stearn. 19 Iowa, 244, Newman v. De Lovemer. 18 Cal. 490, Lord v. Morris. 13 Pick. 76, Powers v. Bussell. 12 Mass. 461, Harrison v. Trustees, &c. 20 Johns. 187, Jackson v. Bodle. 58 111. 310, Kingsbury v. Burnside. 25 Vesey, 498. 9 D. &. B. 40. 11 B. Mon. 312, Lytle’s ex’r y. Pope’s adm’r. 11 Wheaton, 86, Brooks v. Marbury. 45 New Hampshire, 510, Johnson v. Farley. 12 Johns. 418, Jackson v. Phipps. 11 Paige, 564, Wickoff y. Bemsea. 10 B. Mon. 180, Ford, &c. v. Gregory’s heirs. 10 Mass. 456, Maynard v. Maynard. 12 Pick. 144, Hedge et al. v. Drew. 13 B. Mon. 476, Bayse v. Briscoe. 12 I. B. 242, Jackson v. Wood. 11 B. Mon. 102, Kennard v. Adams.
74 Ky. 42Eustache v. Rodaquest (1874)
Case 10 — PETITION EQUITY APPEAL FROM MCCRACKEN COMMON PLEAS COURT. CITED 3 Littell, 474, Elmendorf v. Carmichael. 2 Met. 185, White v. White. Revised Statutes, chap. 15, 1 Stanton, 239. General Statutes, chap. 14, art. 3, p. 191. Act of March 21, 1861, Myers’s Supp. 85. Act of April 9, 1867, Session Acts, vol. 1, p. 98. CITED . Act of March 21, 1861, Myers’s Supp. 85. Williams on Executors, p. 368. Comyns’ Digest, Adm’r, B. 6. 7 Coke, 33, Calvin’s case. 3 Wheaton, 563, Craig v. Leslie. 2 Humph, 537, Polk v. Ralston. 14 Mo. 526, Greenia v. Greenia. 21 Iowa, 538, Greenheld v. Morrison.
74 Ky. 47Portsmouth Foundry & Machine Works v. Iron Hills Furnace & Mining Co. (1874)
Case 11 — PETITION EQUITY APPEAL FROM CARTER CIRCUIT COURT. CITED General Statutes, chap. 26, sec. 3, p. 265. Revised Statutes, chap. 25. sec. 3. Civil Code, secs. 684, 685, 161. 10 Bush, 299, Broaddus v. Broaddus. CITED General Statutes, chap. 26, sec. 3, p. 265. Revised Statutes, chap. 25, secs. 3, 5, 1 Stanton, 287. Act adopting General Statutes.
74 Ky. 49Adams Express Co. v. Milton (1874)
Case 12 — PETITION ORDINARY appeal Prom eayette circuit court.
74 Ky. 51Munford v. Carpenter (1874)
Case 13 — PETITION ORDINARY APPEAL PROM HART CIRCUIT COURT. CITED Littell’s S. C. 281, Madison v. Owen. 4 Dana, 501, Cain v. Flynn. CITED Pr. Dee. 108-112, 382.. 4 Mon. 30, Thornbeny v. Churchill. 4 Bibb, 330, Bledsoe v. Wells. 4 J. J. Mar. 339. 4 Dana, 501. 1 Mar. 383, 470. Hardin, 369. 2 Littell, 160. . 7 Mon. 333.
74 Ky. 55Peters v. Bourne (1874)
The wipe is substituted only to the rights op the husband by-paying a part of the purchase-money owing by him on a tract of land, and taking an agreement from the vendor that a proportionate part of the land should be conveyed to her. A tract of land was sold in 1859 for $24,000 by two executors, to whom it had been devised in trust to sell and divide the proceeds among certain devisees, the payments being one third cash, one third in one year, and one third in two years. The purchaser failed to meet the deferred payments, and in 1862 suit was instituted to enforce the lien on the land therefor, pending which the wife of the purchaser paid more than $10,000 on the debt, with the understanding that a proportionate part of the land should be hers, and one executor received the payment and bound himself as such in writing to convey to her the title to such proportion. The suit remained on the docket until 1870, when the amount due, after deducting all payments, was ascertained, and a sale of the land adjudged to pay it. The sale was made, and the price bid was less than the debt for which the land was sold, the executor who signed the agreement with the wife being one of the two purchasers. The wife of the former purchaser then sued the two latter to compel a conveyance to her of the proportion of the land for which she had paid, or for a return of the money paid by her. Held, that the wife, in paying her money in part discharge of the debt of her husband, was merely substituted to that extent to his rights, and held subject to the lien on the land for the .residue of the price due, and was not therefore entitled to a conveyance or any equity against the purchasers.
74 Ky. 69Locknane v. Emmerson (1874)
1. Alteration op promissory note and subsequent erasure op it. — If the words “to bear legal interest” be inserted in a note by • the payee, or by another with his consent after the surety has signed it, and without his knowledge or approval, he will be released. 2. Any subsequent erasure op the words inserted will not restore the note to vitality so as to bind the surety.
74 Ky. 74Collins v. Henderson (1874)
1. The “act directing the purchase of Collins’s Historical Sketches of Kentucky” relates to but one subject, and that is clearly expressed in the title. The particular manner in which the object of an act is to be accomplished need not be expressed in the title. The constitution requires only that the title shall indicate with clearness the subject about to be legislated upon, and that the act itself be confined to that subject. 2. The act “imposing an additional tax of fifteen cents for the purpose, of increasing the common-school fund’.’ and any sum produced thereby, is within the provision of section 1, article 11 of the state constitution, and, as a part of the common-school fund, can only he applied in aid of the common schools. 3. Doubt as tó the constitutionality of a law must be resolved in favor of its validity; but this rule does not require that the constitution should expressly prohibit the passage of the act claimed to be in conflict with it. Powers may be implied from such as are granted in words, and the implied powers are as much granted as those expressed. So limitations inconsistent with the exercise of the power claimed may be implied from express limitations. 4. A PROVISION DIRECTING A PARTICULAR THING TO BE DONE IS A limitation upon the power of the legislature to do that which will prevent the doing of the thing directed. 5. What was meant by “common schools.” — At the time of the adoption of the present constitution the common schools to which the school fund was exclusively applied were schools actually taught by teachers qualified according to law to teach, in districts laid out by authority of the school laws, and under the control of trustees elected under those laws, and all white children in the district within a specified age were privileged to attend. All aid for purposes other than to defray the expenses of such schools was strictly withheld. 6. ¿lection 1, article 11 of the constitution, providing that the school fund shall he held inviolate for the purpose of sustaining a system of common schools, and that the interest and dividends thereon, together with any sum which may he produced for that purpose hy taxation or otherwise, may he appropriated in aid of common schools, hut for no other purpose, intended that such fund should he used exclusively in aid of common schools in the same manner in which the school fund had been previously, appropriated. 7. The act directing the purchase of “Collins’s Historical Sketches of Kentucky” is unconstitutional in so far as it provides for the appropriation of any part of the school fund to that purpose, it not being in aid of common schools within the meaning of the constitution. 8. Contemporaneous construction. — -The Revised Statutes, prepared and adopted soon after the present constitution went into effect, in so far as they furnish any evidence as to how the constitution was then understood, must be regarded as a contemporaneous construction. 9. Where the words oe a law are obscure or doubteul, and the sense of the legislature can not with certainty he collected hy * interpreting the language according to reason and grammatical correctness, considerable stress is laid upon the light in which it was received and held hy the contemporary members of the profession.. 10. That no appropriation for the support of normal schools can be constitutionally made out of the school fund was in substance declared by the adoption of subsec. 3 of sec. 1, art. 1, chap. 88, Revised Statutes.
74 Ky. 95In re Woolley (1875)
1. Oeeensive language in petition EOR REHEARING. — Where an offense in the nature of a contempt is committed in the presence of the court, notice to the offender is not usually essential before punishment (7 Wallace, 372); and it is immaterial, where the contempt consists in the use of offensive language, whether it be spoken openly or presented to the court in a written or printed argument. (19 Howard, 13.) A petition for a rehearing is not a pleading, but an argument addressed to the court and the individual members of the court; and to incorporate into such argument contemptuous, scandalous, or insulting matter, is to commit in open court an act constituting a contempt on the part of the attorney. 2. Purging a contempt. — A supposed contempt consisting in mere words which are apparently intended to be scandalous and offensive, but which are susceptible of a different construction, may be explained or construed by the speaker or writer, and on his sworn disavowal of an intention to commit a contempt proceedings against him must at once be discontinued. 3. But this mile does not hold where the matter spoken or written is of itself necessarily offensive and insulting. In such case the disavowal of an intention to commit a contempt may tend to excuse, but can not justify the act. (1 Caines, 484.) 4. The right oe self-preservation is an inherent right in the courts, not derived from the legislature, and can not be made to depend upon the legislative will. Whether the legislature may interfere with the manner in which the courts protect themselves from insults and indignities is doubted and left an open question. 5. Striking attorney from the roll. — As a general rule, the right of an attorney to practice law can only be taken from him on the ground that his character or habits have become such that he is no longer fitted to exercise the functions of the position. 6. But an attorney may unfit himself for the practice of his profession by the manner in which he conducts himself in his intercourse with the courts. He may be honest and capable, and yet so conduct himself as to continually interrupt the business of the courts in which he practices, or he may studiously and systematically attempt to bring the tribunals of justice into public contempt. An open, notorious, and public insult to the highest judicial tribunal of the state, for which an attorney contumaciously refuses in any way to atone, may justify the refusal of that tribunal to recognize him in the future as one of its officers; and in a proceeding against him for contempt, if the contumacy be therein manifested, there is no reason why the order revoking his authority until he does comply with the reasonable requirements of the court may not be made. 7. In this case it is adjudged that the rule be made absolute, and that the respondent make his fine to the commonwealth in the payment of the sum of thirty dollars, and that he pay the costs of this proceeding:
74 Ky. 113Gray v. Reamer (1874)
A co-trustee acting POR conpormity, merely to enable another who takes upon himself the more responsible duties of an active trustee, to transmit or acquire title or make collections, is not in general responsible for the estate thus coming to the hands of the active trustee. But a co-trustee seeking to escape liability on the ground that he had ■ acted merely for conformity should raise that issue in his pleadings, and the burden would be on him of showing that the active trustee alone collected and controlled the fund.
74 Ky. 120Tanner v. Skinner (1874)
1. Personalty aUvanced to the wipe vested in the husband.— Trusts — Guardian’s Surety. — A wife having died leaving two children, her husband intermarried with her sister, who also died leaving three children. The father of the two sisters advanced to each, at her marriage, property valued at $1,200. After the death of both their father executed a writing purporting to give the same property to their children, “ to be kept sacred to their benefit by the court appointing a proper guardian,” who should give him a receipt. The father of the children at the same time gave him a receipt for the $2,400, reciting that he held it as guardian for the benefit of said children. But he was not then their statutory guardian, nor until six years afterward, when on his appointment he reported to the court that he had in his hands $2,400 due to his children. Other funds came into his hands as their guardian, and in his final settlement he failed to account for the $2,400. Held, 1, The property advanced to the daughters, being slaves and personalty, vested in the husband, the personalty absolutely, and a life estate in the slaves; the remainder in the slaves descended to the children on the death of their mothers. There was then no consideration for the undertaking of the husband to his father-in-law to hold the amount for the benefit of the children. 2. But the husband clearly intended to waive his marital'rights and secure to his children the value of the property given to their mothers. Though the receipt may not have evidenced a complete trust, his subsequent conversion of the property, his qualification as guardian, the reports then made, and his ability to make such provision, created a complete trust' which could have been enforced. The sureties on his bond as guardian are therefore liable, but would not be if he had been insolvent at the time of his qualification. '. 2. A trust imperfectly created will be enforced, if there be a valuable consideration, and though the instruments do not pass the title to the property, if from the documents the court can clearly perceive the terms and conditions of the trust and the parties to be benefited. In such cases effect is given to the consideration to carry out the intention of the parties, though informally expressed. 3. But if from imperfect declaration a trust is not fully created, and the beneficiaries are compelled to come into court to have the trust perfected, the court will refuse relief where the plaintiff claims as a volunteer. 4. If by a clear and explicit declaration, duly executed and intended to be final and binding, one makes himself a trustee, the trust will be enforced. (Perry on Trusts, 96; Hill on Trustees, 86.) 5. The petition must specify the particular items objected to in a suit in equity surcharging a guardian’s settlement made with the county court. (Wooldridge v. Watkins, 3 Bibb, 352.) 6. It is the natural and legal duty of a father to support his children, and it is only under peculiar circumstances that 'he will be allowed to charge them for maintenance or education. 7. Compound interest should cease on the ward’s arriving at full age, and simple interest only should thereafter be charged against the guardian. (Clay v. Clay, 3 Met. 554.)
74 Ky. 131Linthicum v. Fenley (1874)
1. The act op 1856 is neither a bankrupt law nor an insolvent act; it merely provides that sales, mortgages, or assignments made in contemplation of insolvency, and to prefer one or more creditors over others, shall operate as an assignment and transfer of all the property of the debtor, and shall inure to the benefit of all his creditors, provided that within the time limited they ask that it be so treated, and the court shall take control of the property and distribute its proceeds among his creditors. 2. The existence of the Federal bankrupt law does not prevent the state courts from affording this character of relief, any more than it deprives them of the power to enforce the rights of parties under an assignment voluntarily and intentionally made by a debtor for the joint benefit of all his creditors. 3. The filing of the petition within the time prescribed by the act of 1856 vests in the creditors the right to a distribution under that 'act. which can not be impaired by any act of the debtor or the preferred creditor. 4. What vests in the assignee of Á bankrupt.&emdash;The assignee of a bankrupt is not the assignee of his creditors, nor of all the judgments, executions, liens, and mortgages outstanding against his property. The assignee takes only the bankrupt’s interest in property, and has no control over it other than is given expressly by the bankrupt act, as auxiliary for the preservation of the bankrupt’s interest, for the benefit of his general creditors. (Goddard v. Weaver, 6 N. B. Beg. 440.) 5. Creditors proceeding in the state court under the act of 1856 can not be forced, either by the debtor or his assignee in bankruptcy, to prosecute their claims in the bahkrupt court or forfeit their lien upon or interest in the property against which they were proceeding in the state court. (2d Nat. Bank of Louisville v. Nat. State Bank of N. J., 10 Bush, 367.)
74 Ky. 135Moorman v. Board (1874)
Case 21 — PETITION EQUITY APPEAL PROM BRECKINRIDGE CIRCUIT COURT. CITED General-Statutes, sec. 25, p. 414. Cooley’s Con. Lim. pp. 74, 77, 78. 9 B. Mon. 540, Scarborough v. Watkins & wife. 2 Bush, 215, Willis & wife v. Woodward. 2 Story’s Equity, sec. 1895. 8 Johnson’s Ch. 528, Braddish v. Gibbs. 2 Reynolds’s System of Medicine, p. 148. 7 Bush, 156, Ford v. Teal. 7 Bush, 228, Woodhead, &c. v. Foulds, &c. 3 Bush, 575, Martin v. Davidson’s heirs. 3 Dana, 113, Nantz v. Bailey. CITED 3 Bush, 576, Martin v. Davidson. 1 Peters, 341, Spratt v. Spratt. 6 J. J. Mar. 532, Burnett v. Shackleford. 3 J.- J. Mar. 242, Whitaker v. Blair. 3 Dana, 116, Nantz v. Bailey. 5 Mon. 41, Hughes v. McKinsey. 5 B. Mon. 481, Gregory v. Ford. 8 B. Mon. 219, Blackburn v. Pennington. 8 B. Mon. 183, Gill v. Fauntleroy. 7 Bush, 156, Ford v. Teal. 7 Bush, 225, Woodhead v. Foulds.
74 Ky. 142McGuire v. McGuire (1874)
Case 22 — PETITION EQUITY APPEAL PROM THE OWSLEY CIRCUIT COURT. C.ITED Civil Code, sections 20-28. Revised Statutes, 2 Stanton, pp. 466, 695. Cooper’s Equity, 125, 268. Ambler, 761. 1 Vernon, 42. Swinburne on Wills, part 7, sec. 14. 5 Littell, 275,-Well’s will. 8 Bush, 864, Mitchell v. Holder. 2 Atkyns, 324, Bennett v. Vade. 1 Story’s Equity, sections 184, 786. 2 Story’s Equity, sections 1075, 1083. 2 How. 645, Gaines v. Chew. 3 Brown’s Par. Cases, 358, Kerrick v. Brausley. 5 Beavan, 469, Allen v. McPherson. 1 House of Lords Ca. 218. 1 Dana, 203, Gore v. Stevens. 2 Maddock’s Chancery,'48-60. 1 Jarman on Wills, 374. 1 Williams on Executors, 10. 2 Williams on Executors, 1236, 1237. 7 Dana, 5, Clay v. Hart. 1 Desaussure, 120. 3 Vesey, 410-420. 1 Bibb, 203, Grant v. Craigmiles. 1 Brad. Sur. Bep. 478. 10 B. Mon. 473, Tibbatts v. Berry. 18 B. Mon. 259, Hughey v. Sidwell’s heirs. 50 N. Y. 91, Fred Deitz’s will. CITED Hill on Trustees, pp. 150, 151. Newland on Contracts, p. 111. 2 Vernon, 700, Grose v. Tracy. 1 Vernon, 296. 1 Story’s Equity, p. 421, ch. 256, 296; 2 lb. sec. 1265. 2 Marsh. 191, Gaines v. Gaines. 1 Watts, 163. 3 Vesey, 152. 2 Vernon, 506, Oldham v. Litchfield. 6 Bush, 237, Myles v. Myles. 5 Bush, 625, Smith v. Smith. 3 Bush, 35, Mason v. Mason.
74 Ky. 154Tully v. Commonwealth (1874)
1. Arrest op judgment in criminal cases. — By section 271 of the Criminal Code the power of the court to arrest a judgment can only he exercised where there is no public offense charged; and although the alleged offense may be so defectively stated as to make the indictment, with reference to such offense, bad on demurrer, still if any public offense has been committed by the accused within the jurisdiction of the court, conceding the facts alleged in the indictment to be true, the judgment will not be arrested. 2. Accessory apter the pact. — At common law any one who, knowing a felon to be guilty, aids him in making his escape by furnishing him money or by other means, or prevents his apprehension by harboring or concealing him, is an accessory after the fact. 3. The prosecution must show the guilt of the principal felon before the conviction of the accessory can be had, and the indictment against the accessory must contain such allegations as to the commission of the crime and the guilt of the principal as would make it a good indictment against the principal. 4. It is a universal rule of pleading that where the existence of facts is material to enable the prosecution to convict, or a party in a civil proceeding to recover, those facts must be alleged. 5. But if one be convicted as an accessory after the fact, the judgment, will not be arrested where the indictment alleges that the principal is guilty of the offense charged, although the facts constituting the crime be not fully stated. 6. Insufficient indictment for aiding an escape. — A charge in an indictment that the accused aided a felon “ to escape beyond the jurisdiction of the court in which he stands indicted, and beyond the custody of the jailer of Scott County and all other officers of this commonwealth, by furnishing him money,” etc., is insufficient for a conviction under section 5, article 16, chapter 29 of the General Statutes, in regard to escapes from jail or the custody of an officer. 7. As there is hut one ground for arresting a judgment, and it not appearing that the motion was made for any other, this court will presume that it was for that ground — that no public offense was charged in the indictment.
74 Ky. 163Thirlwell's adm'r v. Campbell (1874)
Case 24 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Act of March 1, 1860, Myers’s Supp. 107. CITED Daniell’s Chancery PI. and Pr., chap. 31. Adams’s Equity, page 261. Revised Statutes, Myers’s Supp. 107. Acts 1867-68, page 25. Story’s Equity, sections 477, 493. 6 Allen, 164, Frost v. Belmont. 2 Daniell’s Ch’y PI. and Pr., p. 1434, n. 4, pp. 1438, 1439. 1 Keen, 358, Stanton'v. Hatfield. 5 DeG. M. and G. 556. 3 Beavan, 9, Suttou v. Doggett.
74 Ky. 169Biggerstaff v. Commonwealth (1874)
Case 25 — INDICTMENT APPEAL PROM MADISON CIRCUIT COURT. CITED Civil Code, section 136. Revised Statutes, 1 Stanton, sec. 4, p. 432; sec. 7, p. 434. Roscoe on Crim. Ev., page 673. Revised Statutes, chap. 32, art. 12, sec. 14. v 2 Met. 12, Commonwealth v. Powell. 2 Met. 493, Patterson v. Miller. 1 Hawkins P. C., sec. 4, page 431. 2 Bishop’s Crim. Law, section 864. 1 Nott and McC. 547. 3 Bush, 16, Rice v. Commonwealth. 1 Bush, 176, Tomppert v. Lithgow. 1 Duvall, 90, Mount v. Commonwealth. 1 Met. 368, Commonwealth v. Megowan. 18 B. Mon. 498, Commonwealth v. White. CITED Revised Statutes, chap, on “ Elections,” art. 12, sec. 14. 1 Met. 143, Stokes v. Kirkpatrick. ■ ' . 2 Met. 496, Patterson v. Miller. 4 B. Mon. 229, Rodman v. Harcourt. 4 Bush, 328, Morgan v. Vance. 17 B. Mon. 409, Comely, v. Commonwealth.
74 Ky. 174Robinson v. Robinson's trustee (1874)
Cases 26-PETITION EQUITY APPEAL PROM GARRARD CIRCUIT COURT. CITED Civil Code, sections 545, 35, 49. General Statutes, sec. 13, p. 586. 9 Bush, 665, Lawless v. Barger, &c. 4 Bush, 585, Dunn v. Lancaster. 3 Bush, 660, Hughes’s adm’r v. Brown, &c. 6 Bush, 542, Thatcher, &c. v. Cannon, &e. 8 Bush, 474, American Contract Co. v. Cross. 8 Dana, 297, Miller v. Shackleford. . 3 Bibh, 497, Brown’s adm’r V. Langford. 5 Littell, 77. ' . 18 B. Mon. 223, Hortsman v. Cov. & Lex. R. R. Co. CITED 31 Iowa, —, Chamberlin v. Robertson.
74 Ky. 180Gaar v. Louisville Banking Co. (1874)
1. Indorsement in blank and delivery of a bill pass the title, and the holder suing thereon and alleging title in himself may recover, .unless his title is denied by plea, when it may be necessary to fill up the indorsement in order to furnish evidence to overcome the denial. It is the indorsement and delivery that operate to pass the title. 2. A bill of exchange is a written order or request by one person to another for the payment of a specific sum of money absolutely and at all events. 3. Certainty of amount — A reasonable attorney’s fee. — An agreement between the parties that if the bill should be sued upon, a reasonable attorney’s fee should also be paid by the obligors to the holder does not thereby make the amount due thereon uncertain, so’ as to deprive the paper of its negotiability. 4. Where it was verbally agreed between the payee’and the OBLIGORS IN A BILL THAT BEFORE IT SHOULD BE OBLIGATORY he should obtain the signatures of all of them to an agreement to become bound as between themselves as if they were joint sureties on a note, they were held bound, although all their names are not signed to the agreement; but if any of them were injured by reason of such failure, they could set up their damages by way of counterclaim in a suit on the bill by the payee. (Hubble v. Murphy, 1 Duv. 278.) • 5. The dieeerence between usury and a penalty. — When the debtor, by the terms of his contract, can avoid the payment of a larger by paying a smaller sum at an earlier day, the contract is not usurious, but the difference between the two sums is a penalty. But when he can not discharge his contract according to its terms at maturity by the payment of the debt and lawful interest, the contract is usurious. (Blydenburg on Usury, 39; Cullen v. How, 8 Mass. 257; Moore v. Hilton, 1 Dev. Eq. 429; Tyler on Usury, 97; Jordan v. Lewis, 2 Stewart, 426.) 6. A note or bill for a specific sum with legal interest, and providing that the debtor shall pay an attorney’s fee, if sued on, is not usurious. (Thomasson v. Townsend, 10 Bush, 114.) 7. A cross-appeal is allowed only in behalf of the appellee against ■ the appellant, and not by an appellee against a co-appellee. (Smith v. Northern Bank of Kentucky, 1 Met. 575.)
74 Ky. 191Selden v. Preston (1874)
1. Where a cause op action exists in behalf op a resident op this state against A non-resident the mere fact of the debtor being a non-resident will not prevent the statute of limitations from running. But where the debtor is a resident of this state and absents himself from the state by removal or otherwise, the period of his absence will he omitted in the computation of the time. 2. Period op the war not computed.. — If a state of war exists between the governments of the creditor and debtor, as the creditor can not appear in the domicil of his debtor to collect his debt, the right to collect it is suspended dur.ing the war, and revives in full force on the restoration of peace, and the time during the existence of the war is not computed in limitation of the action. 3. None of the courts of the Union have gone so far as to deny the right of one living in the Confederacy during the late war, having debts due him in the adhering states created prior to the beginning of hostilities, to collect those debts by judicial process after its termination, and, where the statute of limitations has been pleaded, to strike from the computation of the time the period that the war was carried on. 4. The right to proceed on constructive service against alien enemies, or against debtors living in the seceded states during the late war by creditors in the adhering states, has been settled. But such proceedings only affected the attached property of the debtor. No personal judgment could be rendered against such enemy in such proceedings. The creditor was not required to pursue this imperfect remedy in order to avail himself of the exceptions expressed in the statute ■ of limitations. 5. Interest is not allowed during the time the. right of action is suspended by war.
74 Ky. 209Whitehead v. Woodruff (1874)
1. Fraudulent conveyances voidable.&emdash;The making of sales, mortgages, or the like to prefer creditors is not of itself such fraud as will ipso facto vitiate the act and render it void, but only-makes it voidable at the election of creditors made by petition filed within six months. (Wintersmith, &e. v. Pointer, &c., 2 Met. 460.) 2. Where a debtor commits more than one fraudulent act, such as can be made to operate under the statute of 1856 as an assignment of all his property for the benefit of his creditors, and they institute suit within six months after the last act only, the judgment therein operates to vest in the creditors such estate as the debtor had at the time that act was committed, and can not divest prior liens, although they may have been created by the former fraudulent acts of the debtor, and could also have been set aside if suit had been • institute^, in time. 3. Giving a preference to one or more creditors is not in itself fraudulent as to other creditors. (8 Dana, 215; 18 B. Mon. 201; 3 Met. 539; 2 Duv. 278; Ibid. 371.) 4. Execution liens.&emdash;From the time of its delivery to the proper officer an execution binds, and creates a lien on every species of estate of the defendant subject to levy and sale under execution, whether so at common law or made subject by statute, and the same character of lien on encumbered property as on other.
74 Ky. 217Murphy v. Commonwealth (1875)
One justice op the peace can not act as an examining court where the defendant is charged with the commission of a felony. (Revill v. Pettit, 3 Met. 314.) In such cases the Criminal Code did not originally authorize the examining court to admit the defendant to bail prior to or pending the examination. The act of March 8,1867, gives such authority to the examining court, but not to a single justice. After the examining court has granted and fixed the amount of bail either of ^he justices composing the court may take and attest the bail bond.
74 Ky. 220Wood v. Commonwealth (1875)
CAsE 2-INDICTMENT- APPEAL FROM FAYETTE CIRCUIT COURT.
74 Ky. 222Grotenkemper v. Achtermeyer & Co. (1875)
Case 3 — PETITION EQUITY APPEAL PROM KENTON CHANCERY COURT. CITED Benjamin on Sales, 35-37, 378-80. Story on Agency, section 27. Revised Statutes, Myers’s Supp., p. 300, sec. 1. 2 Kent, page 537. 3 Term Rep. 148, Paine v. Cave. 1 Parsons on Contracts, p. 418, note e. 4 Bing. 653, Routledge v. Grant. 1 Bouv. Law Die., “Auction,” “ Bidder.” 3 Bush, 621, Thomas v. Kerr. 7 111. 614, Burke v. Haley. 6 Leigh, 16, Brent v. Green. 1 Met. 575, Smith v. N. Bank Ky. 5 Bush, 304, Gere v. Cushing, &c. 2 Swan, 316, Barnes v. Thompson. 2 Sneed, 268, E. T. Iron M. Co. v. Bynum. 53 Maine, 394, Horton v. McCarty. 38 Maine, 302, Pike v. Baleh. 28 L. J. Q. B. 18, Warlow v. Harrison. 29 Conn. 267, Rose v. Perssee & Brooks Paper Works. 21 Cal. 80, Donahue v. Cromastie. 'CITED Myers’s Supplement, page 300. 2 Swan (Tenn.) 313, Barnes v. Thompson. 2 How. (Miss.), 880, Buck v. Brian. 4 Met. 357, Johnson’s ex’r v. Wiseman’s éx’r. 2 Smith’s Leading Cases, 248. 5 Dutcher, 550, Ooddington v. Beebe. 3 Sneed, 268, E. T. Iron Man. Co. v. Bynum. 3 Watts, 140, Morgan v. Arthur. 5 Watts, 115, Wademan v. Thorpe. 9 Cal. 119, McGreery v. Osborne. 46 Mo. 595, Oster v. Rabeneau. 30 Penn. 122, Norris’s Appeal. 62 Penn. 405, Robson’s Appeal. 11 Wis. 119, La Crosse & Mil. R. R. Co. v. Vanderpool. 21 Cal. 80, Donahue v. Cromastie. 17 S. and R. 413, Gray v. Holdslip.
74 Ky. 228Carter, Fisher & Co. v. Goodman (1875)
1. The right to a homestead exemption depends upon the present and actual purpose and intention of the debtor to use and enjoy the property sought to be exempted as a home for himself and family, and that right does not exist where the residence of the debtor and his family is permanently located elsewhere. (Brown Bro. & Go. v. Martin & Co., 4 Bush, 50.) 2. Where a debtdr removes from Ms residence, with the view of permanently locating elsewhere, his right to the exemption in the land he left ceases with his removal, although he may still own and cultivate it and have a tenant thereon; and the right is not re-established by his intention to return, but relates only from the time he actually makes it the residence of himself and his family. 3. Where a debtor returns with his family to his former residence after executions against him have been placed in the officer’s hands, but before levy, the liens in favor of the execution creditors on the property can not be overreached or defeated by his claim to a homestead. The liens acquired by the levies related bach to the dates when the executions came to the hands of the officer. 4. Reply not necessary — Fraudulent conveyance or land alleged IN the ANSWER. — This suit was brought to enjoin a sale of land under execution, on the ground that the plaintiff, before-the issuing of the execution, had become the purchaser of the land, and that it had been conveyed to him by deed duly recorded. The answer admitted these facts, but by way of avoidance charged that the conveyance was made without consideration, and with the intent to defraud the creditors of the vendor, and, without expressly making it a cross-petition or counter-claim, prayed that the deed be annulled and the land sold to satisfy the debt. Held, that the validity of the deed was placed in direct issue, and no reply was required, it devolving on the defendant to show that the deed was fraudulent.
74 Ky. 234Garrard County Court v. McKee (1875)
Case 5 — PETITION ORDINARY APPEAL PROM MERCER CIRCUIT COURT. CITED Revised Statutes, 1 Stanton, pp. 187, 329, 467. Myers’s Supplement, 207, 208, 260. Civil Code, sections 15, 16, 120, 526, 733. MS. Opinion Supreme Ct. Kansas, Oct. 31, 1871, McNiel, &c. v. Hart, &c. ■ MS. Opinion, Jan., 1858, Fulton v. Pendleton Co. Ct. 1Acts 1871, page 9. 1 Bibb, 575, Dye v. Knox. 2 Mar. 606, Talbot v. David. 1J. J. M. 108, Commonwealth v. Chambers. 1 Met. 65, Raymond v. Smith. 2 Met. 56, Maddox, &c. v. Graham & Knox. 3 Bush, 164, Arnold v. Smith. 4 Bush, 307, Fletcher v. Leight & Barret. 8 Bush, 306, Mercer Co. Ct. v. Ky. Riv. Nav. Co. *8 Bush, 209, Shelby Co. Ct. v. Cumberland & Ohio R. R. Co. 2 Sandf. (S. C.), 468, Brady v. Supervisors New York. 2Cow. 583, Mallory v. Supervisors Broome. 1 Acts 1867, page 74. 9 Bush, 317, Paul v. Bruce & Co. 14 B. Mon. 172, Bush v. Madeira. 18 B. Mon. 852, Anderson Co. Ct. v. Stone & Son. 19 Johns. 259,. Hall v. Supervisors Oneida. 10Wend. 363, People v. Supervisors Columbia. 18 Johns. 242, Bright v. Supervisors Chenango. 12 Wend. 257, People v. Supervisors Albany. 10 N. Y. 260, Martin v. Supervisors Green. 12 Wis. 510, Orton, &c. v. The State. CITED Civil Code, section 523. Revised Statutes, chapter 4, article 3. Revised Statutes, 1 Stanton, pages 327, 329,.249. Myers’s Supplement, page 137. 10 N. Y. 260. 8 Bush, 300, Mercer Co. Ct. v. Ky. River Nav. Co. 9 Wheaton, 904, Bank of U. S. v. Planters’ Bk., Georgia. 3 J. J. M. 205, Waller v. Bank of Ky. 7 Craneh, 299, Bank of Columbia v. Patterson. 1 Morehead and Brown’s Stat., page 502, Act of 1748. 2 Mar. 603, Talbot v. David. 1 Bibb, 575, Dye, &c. v. Knox. 4 U. S. Digest, new series, page 202. 1 Greene, 413. 5 Iowa, 380. 6 Cal. 254. 2 Greene, 469. 17 Iowa, 413. 9 Ind. 502. 3 Blackstone, page 110. 6 Bacon’s Abr., “ Mandamus,” page 418. 12 Wheaton, 40, Clarke v. Mayor of Washington. 22 111. 175, Knox v. Arms. 13 Cal. 533, Smith v. Mayor of Sacramento. 35 Cal. 664, Hornblower v. Duden. 18 Min. 60, Raymond v. Commissioners of Stearns Co. 34 Iowa, 309, Armstrong v. Tama County. 15 B. Mon. 155, Harrison Co. Ct. v. Smith’s ex’r.
74 Ky. 241Kennedy v. Ten Broeck (1875)
1. Undue influence. — See the opinion for facts held insufficient evidence of undue influence or coercion on the part of the husband in procuring a conveyance of his'wife’s estate. 2. An officer who took the acknowledgment of a wife to a deed will not he heard as a witness to testify that the statements made in his certificate are untrue. S'. A POWER OF APPOINTMENT in lands may be vested in a feme covert by deed or will emanating from a third party. But there is no rule of law or equity which enables the wife, by her own deed or in conjunction with her husband, to vest herself with such a power in or over her general estate. 4. A feme covert can only dispose of her lands in this state in the manner pointed out by statute; nor can the consent of the husband, by uniting with her in the deed, remove the disability or confer upon the wife any such right. The husband and wife can unite in a deed by which the title of the wife will pass.to a stranger, and this in fact is the ordinary and only mode by which a feme covert can be divested of title. Such a deed may divest the wife of all rights, or may vest the title in trust to be held by the grantee for the use and benefit of the husband and wife, or either of them. 5. When freely and voluntarily made, a deed signed and acknowledged by the wife, with the husband united as grantor, will divest her of title as readily and for the same consideration that a conveyance would pass her title if signed and acknowledged by her when a feme sole. 6. T. and wife conveyed her property to B. in trust to hold, to secure him in any money he might loan T.; and if no such liability should be created, to hold in trust for T. and wife, or the survivor of them, and on the written request of them or the survivor tQ reconvey to them, or the survivor of them, in fee. Afterward, on the written request of T. and wife to convey to them and the survivor of them, B. reconveyed the property as directed. Held, that the right to charge the estate was conferred by the deed on the trustee, and not on the wife; and the writing was simply a trust in B. to loan money if he saw proper, and hold the title for the benefit of the husband and wife. His failure to loan did not destroy the right of the beneficiaries, their rights having been already vested. The stipulation in the deed that the trustee should reconvey to T. and wife on their written request can not be regarded as a power conferred on the wife by which she may divest herself of title, as this had already been done. 7. The chancellor may order a jury to aid him in finding on the facts; but it is a matter solely within his discretion.
74 Ky. 254Harris v. Beaven (1875)
1. Commonwealth’s attorneys can not become private prosecutors. — It was not intended by section 8 of chapter 42 of the Revised Statutes that a commonwealth’s attorney should be permitted to enter himself as prosecutor on indictments under sections 6 and 7 of that chapter, and entitle himself to one half the fine recovered. He was bound, independently of that statute, to do all that he could reasonably and fairly to secure a conviction for the salary and perquisites given him, and could not as prosecutor come under new obligations to the state. 2. An order of court directing that fifty per cent of such fine be indorsed for the benefit of the commonwealth’s attorney is not a judicial determination of his right to receive it, the state being unrepresented and not in court to resist it. 3. Second judgment eor the same liability is erroneous. — In dissolving a temporary injunction against the collection of a judgment the circuit court- erred by rendering a second judgment for part of the first which was sought to be enjoined.
74 Ky. 261Veach v. Wickersham (1875)
Case 8 — PETITION EQUITY APPEAL EROM MERCER CIRCUIT COURT. CITED 1Bush, 475, Joyce v. Joyce’s adm’r. 1 Dana, 476, Combs v. Boswell. CITED Revised Statutes, 2 Stanton, p. 398. Civil Code, section 479. Myers’s Supplement, p. 295. 2 Bibb, 220, May v. Johnston. 1 Bush, 476, Joyce v. Joyce. 2 Bibb, 287, Adams v. Ashby. 3 Bibb, 105, Philips v. Morrison. 3Littell, 51, Jones v. Henry. 2 J. J. M. 436, Fitzhugh v. Croghan. 7 Mon. 608, Dicken v. Griffith. 3 Dana, 88, Helm v. Jones. 7 Mon. 450, Herndon v. Bartlett. 5 Dana,' 444, Bowling v. Dobyn. 9 Dana, 433, Morrison v. Page. 1 B. Mon. 177, Hite v. Hite. 3 B. Mon. 85, Chiles v. Boon. 4 Mon. 174, Whittington y. Roberts. 7 Mon. 62, South v. Thomas. ’ 1 Johns, 34. 10 John. 104. 3 Starkie’s Ev. 1084. 11 Ves. 22. 2 Vern. R. 608. 14 Ves. 159. 1 Dana, 337, Clark v. Schwing. 5 Dana, 246, Patterson y. Pope. 1 Mar. 63, Sebastian v. Thompkins. 1 Bibb, 320, Piatt y. Craig. 6 B. Mon. 287, Scott y. Hall. 5 Bush, 421, Patrick v. Swinney. 4 Dana, 504, Ditto v. Ditto’s adm’r. 5 Bush, 447, Warren v. Perry. 1 Story’s Equity, sections 499, 500. 21 How. 455, Sturgis v. Clough.
74 Ky. 265United Society of Shakers v. Underwood (1875)
1. A JUDGMENT AGAINST pNE CO - TRESPASSER WILL NOT per se BAR AN action against another for the same or a different asportation or conversion of the same property; and to make out a bar in such case it is necessary to show not only the first judgment, but also that it has been fully satisfied or released. The judgment alone ■ does not vest in the defendant the title to the property converted. (Elliott v. Porter, 5 Dana, 299; Lovejoy v. Murray, 8 Wallace, 1.) 2. Election by the plaintiff. — A plaintiff may maintain separate actions and recover separate judgments against joint trespassers, and may elect to take the largest sum assessed, or to proceed against the solvent defendants, or where no one of them is able or can be compelled to pay the whole of the judgment rendered against him may accept part satisfaction from one and still look to the others for such balance as may be necessary to give him full legal compensation for the wrong suffered; but ordinarily when he has made his election he will be concluded by it. 3. Where the injured party sues one of several wrong-doers and recovers a judgment, which he elects to enforce and which is in part satisfied, he is estopped in a subsequent action against a different defendant for the same cause to claim a greater sum in the way of damages than was adjudged to him in the first action. 4. Plaintiff may defer his election by declining to enforce his judgment, leaving the question of amount to which he is entitled an open one, until he sues and recovers against all who are liable to him, and then elect which judgment he will enforce; or he may sue upon his original cause of action and compel the defendant to rely, by plea or as matter of evidence, upon the first judgment and his election to enforce it, thereby estopping each party from questioning the. correctness of that judgment. 5. A JUDGMENT AGAINST A OO-TRESPASSBR IN A BANKRUPT COURT, as pleaded in this case, is conclusive upon both plaintiff; and defendants as to the amount of damages sustained by the plaintiffs. ■ In a suit for the tortious conversion of property the defendant pleaded in bar the judgment of a bankrupt court in favor of the plaintiffs against a co-trespasser for the same conversion, and which had in the greater part been satisfied. Held, that the judgment of the bankrupt court against the co-trespasser is conclusive upon both parties in the second suit as to the amount of damages. 6. A peremptory instruction may be asked on the opposing party’s evidence, by assuming it as true and every fact it tends to prove. But such motion can not be made on the party’s own evidence alone, or on his own mingled with oi; added to that of the opposite party, unless his own evidence is composed of records or uncontested official documents or writings. (Dallam v. Handley, 2 Mar. 424.) 7. A peremptory instruction is not authorized inhere the testimony on both sides is of the same kind and tendency, and where the jury must compare and weigh it, and where they can give credit or refuse to give credit to either a part or the whole of the testimony on each side. (Thompson v. Thompson, 17 B. Mon. 29.) 8. It is not enough that the proof is such that the court may feel that possibly a new trial should be awarded in case of a verdict for the plaintiff, on the ground that it would be against the weight of the evidence. If there be evidence conducing to show a right of recovery the plaintiff may insist upon a verdict.
74 Ky. 277Commonwealth v. Pritchett (1875)
CASE 10-INDICTMENT APPEAL PROM HARDIN CIRCUIT COURT. CITED . Common School Law, art. 7, sec. 1. Sergeant’s Const. Law, 376. Constitution of Kentucky, art. 2, see. 8. General Statutes, p. 223, chap. 13, art. 7, sec. 1. Blackstone’s App. 57, 58. Rawle, Const. 213. CITED General Statutes, chap. 62, art. 1, sec. 1. Criminal Code, secs. 105, 349, 276, 331, 345, 349.
74 Ky. 282Brady v. Commonwealth (1875)
1. Circumstantial evidence should be left, like direct or positive EVIDENCE, TO BE CONSIDERED BY THE JURY, and to have SUCh weight as they deem it entitled to, without caution or suggestion on the part of the court as to its value or the necessity of scrutinizing it closely. The Criminal Code (section 226) makes it the duty of the court to “instruct the jury ori the law applicable to the case.” This provision of the Criminal Code, by a clear implication, prohibits the court from mahing suggestions to the jury as to the weight of any particular species of evidence or what consideration they should give it. The former practice of charging the jury has ceased in this state. 2. Instructions should be confined to the facts necessary to make out the charge or defense. 3. The evidence should be left without comment. — Courts should confine the instructions as closely as possible to the essential facts necessary to make out the charge or defense, and leave the evidence ofiered to establish those facts to the jury without comment. 4. Reasonable doubt. — The court should tell the jury to acquit if, on all the evidence, they entertain a reasonable doubt of the guilt of the accused or of any fact necessary to make out his guilt. 5. It was not error to refuse the following instructions : 1. “ The prisoner can not be convicted on the evidence of mere circumstances unless every one of the circumstances necessary to establish guilt is proven beyond a reasonable doubt, and also unless such circumstances are of such character and tendency as to exclude every rational theory of the case consistent with the prisoner’s innocence.” 2. “The jury should not convict on circumstantial evidence alone unless they are as much convinced by such evidence as if a single credible witness had proven directly and positively the facts necessary to convict him.”
74 Ky. 296Herbert v. Kenton Building & Saving Ass'n (1875)
Case 12 — PETITION EQUITY APPEAL FROM KENTON CHANCERY COURT. CITED 2 Session Acts 1869-70, page 169. CITED Act of March 10, 1870, incorporating appellee. 1 Exch. B. 494. 6 Bing. M. C. 180, Silver v. Barnes. 6 Hare, 87, Wadley v. Baker. 1 DeGex, McM. & G. 783, Seagrave v. Pope. 8 Eng. L. & E. 57, Burbridge v. Cotton. 3 Stockton, 382, Savings Ass’n v. Vandevere. 6 Allen 1, Delano v. Wild, &c. 1 Duvall, 143, Sayre v. The Lou. Ben. Ass’n. 2 Bush, 254, Lee v. The Lou. Pilot Ass’n. 25 Barbour, 253, Citizen’s M. L. Ass’n v. Webster. 21 Ga. 592, Bibb Co. L. Ass’n v. Bicharás. 43 N. H. 194, Shannon v. Dunn.
74 Ky. 305Shelley v. Newport Saving Ass'n (1875)
Case 13 — PETITION EQUITY APPEAL EROM CAMPBELL CIRCUIT COURT. CITED General Statutes, chap. 26, secs. 3, 5. CITED Civil Code, secs. 876, 903, 514, 364, 368, 161. General Statutes, chap. 26, secs. 3, 5. Adams’s Equity, side page 197. 3 Abbott’s Nat. Digest, pp. 121, 122, sec. 138. 7 Mon. 255-6, Hopkins v. Chambers.
74 Ky. 306Bibb v. Miller (1875)
1. In pari delicto. — It is the benefit of the public, and not the advantage of the defendant to an action, that is to be considered in cases in which one or more of several parties in pari delicto rely for defense upon the illegality of the transaction out of which the claim arises. In such cases the presumption is in favor of the transaction, and if it be susceptible of two meanings, the one legal and the other not, that interpretation will be put upon it which will support and give it operation. (2 Chitty on Contracts, page 977; 6 Q. B. 989; 41. & W. 654.) 2. The act incorporating the “Public Library oe Kentucky” authorized the holding of musical and dramatic entertainments, at which a portion of the proceeds of sales of tickets of admission should be distributed by lot. In a suit involving the ownership of a tielcet and the right to a prize it had drawn, to which the corporation was not a party, it is assumed that the corporation acted within the scope of the authority granted, and that the ticket was of sufficient intrinsic value to make it the subject of a suit.
74 Ky. 311Patterson v. Commonwealth (1875)
Case 15 — 'WARRANT IR CITY COURT APPEAL PROM PADUCAH CITY COURT. CITED Act of Feb’y 21, 1874, to regulate the sale and inspection of oils, etc. Curtis on Patents, pp. 562, 154, 511, 88, 541. 3 Const. 14, Dudley v. May hew. 4 Fisher’s Patent Cases, 186. .40 Maine, 434, Elmer v. Paunel. 12 Wall. 209, Tonnage Tax Cases, 14 Peters, 458, Phila. & Trenton R. R. Co. v. Stimpson. (Briefs not in record.)
74 Ky. 316Secrets v. Markwell (1875)
Obligors in indemnifying bonds are liable for the entire damage. — If property not subject to execution is levied on, and an indemnifying bond given, and a sale is made for more than sufficient to satisfy the execution, the obligors in the indemnifying bond are liable, not only for the amount of the execution, but for -the entire damage sustained in consequence of the seizure and sale.
74 Ky. 321Dillion v. Crook & Co. (1875)
Case 17 — PETITION EQUITY APPEAL FROM ROCKCASTLE CIRCUIT COURT. CITED 1. Frauds and perjuries: General Statutes, title Contracts. Revised Statutes, chap. 4, secs. 1, 2, 3, 4, 5, 6. Dunlap’s Laws, Penn. chap. 59. Code, Iowa, secs. 1205, 2409, 2410, 2411, 2412. 3 Litt. 393, Finley, &e. v. Wilson. 4 Bihb, 511, McCracken v. Sanders. 5 Litt. 92, MeCamphell v. McCampbell. 6 Mon. 557, Grimes v. Shrieve. 4 J. J. Mar. 230, Gudgell v. Duvall. 5 B. Mon. 269, Clary’s heirs v. Marshall’s heirs. 9 B. Mon. 371, King’s ex’r v. Hanna. 1Met. 557, 558, Berry v. Graddy. 1 Bush, 149, Cornellison v. Cornellison. 7 Bush, 281, Faris and wife v. Dunn. 8 W. H. & G. 401, Waters v. Towers. 4 Sneed, 301, Sneed v. Bradley. 42 Mo. 351, Kratz v. Stoke. 14 B. Mon. 293, Bellamy v. Ragsdale. 2. Estoppel: Bigelow on Estoppel, 475, 476. Sugden on Vendors, 446. Washburn’s Eas. & Ser. p. 63. Roberts on Fraud, p. 130. Tud. Lead. Ca. 106. 3 Kent’s Com. 452. Craig & P. 91, Williams v. Jorsey. Chitty on Contracts, 467. Bigelow on Estoppel, 527. 1 Hilliard on Torts, p. 182, sec. 31. 3 Litt. 55, Springle & Bobb’s heirs v. Morrison. 5 J. J. Mar. 569, Lyne, &c. v. Bank of Kentucky. 3 Dana, 380, Barclay v. Hendrick. 6 B. Mon. 113, Brothers v. Porter. 8 B. Mon. 542, Tom Davis v. Tingle. 7 Dana, 280, Lex. & Ohio R. R. Co. v. Ormsby. • 1 Story’s Equity, 377. 2 Ibid, 388. 2 Eq. Ca. Abr. 552. Ibid, Short v. Taylor. 1 Bay, 239, Tarrant v. Terry. ' 6 Hare, 300, Powell v. Thomas. 28 New York, 297, Marble v. Whitney. 14 Bear. 430, Devonshire v. Eglin. 10 B. Mon. 159, Grace v. Mercer. 3. License: Wash, on Easements & Serv. 23, 24, 649, 650. 3 Kent, p. 452. 1 Dev. & Bat. N. C. 497. 7 Bing. 682, Liggins v. Inge. 4 Watts, 317, McKillup v. Mcllhennv. 9 Iowa, 260, Wickersham v. Orr. 1 Maine, 9, Clement v. Durgin. 14 Ser. & Rawle, 267, Rerick v.- Kern. 33 Penn. 169, Lacy v. Arnett. 19 Ind. 14, Snowdon v. Willis. 19.1nd. 369, Stephens v. Benson. 17 Iowa, 114, Beatty v. Gregory.' 11 N. H. 102, Ameriscoggin Bridge v. Bragg. 15 Law Beg. 380, Husten v. Saffee. 18 B. Mon. 222, Hortsman v. Lex. &/ Oov. B. B. 4. Principal and agent: Sugden on Vendors, 6. 15 B Mon. 515, Campbell, v. Hillman. 5. Damages: Sedg. on Measure of' Damages, 74, 77, 78, 79, 245. 14 Barb. 611, Davis v. Talcott. 18 111. 223, County of Christian v. Overhalt. 18 111. 217, Palm v. Ohio & Miss. B. B. Co. (Brief not in record.) .
74 Ky. 327Anderson v. Anderson (1875)
CASE 18-PETITION OEDINkR~ APPEAL FROM FLEMING CIRCUIT COURT. CITED Reeves’s Domestic Relations, side page 63. Civil Code, sec. 53. 1 Chitty’s pleadings, 73. CITED Civil Code, secs. 49, 51. • 1 Chitty’s Pleading, 83. 2 Mar. 601-, Wilson v. McGee. 1 Bishop on Married Women, secs. 910, 912. 8 Ohio, 594, Coolidge and wife v. Paris. 2 Grant (Pa.) 39, Tibbs v. Brown. 2 Mon. 56, Smalley v. Anderson. 2 Hill, 260, Beach v. Beach. 4 Blackf. 453, Yeates v. Reed. 4 Cushing, 273, Austin v. Wilson. 8 T. R. 545, Marshall v. Button. 1 Coke’s Institutes, 132. 2 Pr. Wms. 518. 3 Pr. Wins. 142. 5 Dana, 516, Longnebker v. Greenwade. 2 Mar. 344, Shield’s heirs v. Bryant. 2 J. J. Mar. 82, Turtle v. Muncy, &c. 4 B.,Mon. 323, Bybee v. Tharp. 3 Bush, 132, Stith v. Patterson. 38 Maine, 196, Ballard v. Russell.
74 Ky. 330Davidson v. Simmons (1875)
1. The only action that can be maintained on a judgment oe a court oe this state is the equitable action to enforce its satisfaction provided in section 474 of the Civil Code. 2. Fifteen years from the issuing oe the last execution on a . judgment will not bar an action thereon if the defendant therein obstructs the prosecution of the action by departing from the state. 3. The act of May 31, 1865, does not provide that a judgment shall be barred by the lapse of fifteen years without an execution having issued thereon. It only provides that no execution shall issue, and leaves any right of action the plaintiff may have upon the judgment to be governed by the same rules applicable to other causes of action. 4. Order, or sale or realty without rirst subjecting personalty IS erroneous. — In a suit attaching a distributable interest in an estate of realty and personalty, a judgment ordering the sale of the attached realty, without subjecting the personal assets, or ascertaining that there was none, is erroneous. (Civil Code, see. 250.) 5. Suits should be-consolidated. — A judgment ordering a sale of , property subject to an attachment in another suit for a sum not ascertained, is error. The suits should have been consolidated and heard together, and but one sale ordered.
74 Ky. 335Abbott v. Traylor (1875)
Case 20 — PETITION EQUITY AEPEÍAL FROM FRANKLIN CIRCUIT COURT. CITED General Statutes, chap. 13. Civil Code, secs. 519, 369, 372. 5 Bush, 187, Mason v. Mason. CITED 4 Met. 166, Securest v. Edwards. 1 B. Mon. 114, Swift v. Wiley. 3 Mar. 144, Shanks v. Christopher. 1 Duvall, 223, Maupin v. Wools. 2 Met. 450, Montgomery v. Perkins. 4 Met. 103, Knott v. Hogan. 8 Bush, 129, Kerr v. Gibson. 8 Bush, 397, Roots v. Merriwether. 7 Dana, 91, Allison, &c. v. Allison, &c. 17 B. Mon. 640, Barnes, &c. v. Edward. 16 B. Mon. 112, Upchurch v. Upchurch. 17 B. Mon. 390, Tudor v. Tudor.
74 Ky. 338Buford v. Speed (1875)
1. Alien enemy may have agent for some purposes. — A person serving in the army of one belligerent can not have an agent within the territory of the other to transact ordinary business, but he may for some purposes, (Ward v. Smith, 7 Wall. 452; Montgomery v. United States, 15 Wall. 492.) 2. Alien may appear in court with counsel and defend. — The provision of the Federal constitution declaring that “no person shall be deprived of life, liberty, or property without due process of law” is applicable to alien enemies, and gives them the right when proceeded against by legal process to appear in person or by counsel,' whom they have a right to employ, and to introduce evidence and make defense. 3. Wife may be agent for her husband. — Where a husband left his wife in possession of his property and joined the Confederate army, and proceedings to confiscate his property were instituted in the Federal court under the act of congress, the wife had authority, by implication of law, to employ the ordinary means of making defense, by hiring and contracting to pay counsel, and he is bound by her action, whether she had express authority or not. 4. A TRUST MAY BE CREATED IN FAVOR OF AN ALIEN ENEMY, which he may enforce after the cessation of hostilities. (Crutcher v. Hord, 4 Bush, 363; Roach v. Hudson, 8 Bush, 410.)
74 Ky. 344Holloway v. Commonwealth (1875)
1. The law op self-defense. — If one without fault believes, and has reasonable grounds to believe that another is about to take his life, or do him great bodily harm, and he has no other apparently safe means of securing himself from the impending danger, he may take the life of the other, and is excusable upon the ground of self-defense and apparent necessity, although it may turn out that the appearances were false, and that there was in fact neither design to do him serious injury, nor danger that it would .be done. (2 Comstock, 197; 2 Wright, 265; 14 Ben Monroe, 614; 18 Ben Monroe, 49.) 2. If one believes, and has reasonable grounds to believe that another has sought him out for the purpose of killing him, or doing him great bodily harm, and that he is prepared therefor with deadly weapons, and makes demonstrations manifesting an intention to commence an attack, he is not required to retreat, but has the right to stand and defend himself, and even pursue his adversary until he has secured himself from danger; and if in doing so it is necessary, or upon reasonable ground appears to be necessary, to kill his antagonist, the killing is excusable upon the ground of self-defense. (Phillips v. Commonwealth, 2 Duv. 328; Young v. Commonwealth, 6 Bush, 312; Bohannon v. Commonwealth, 8 Bush, 481.) 3. The credibility óf witnesses and the effect of their testimony are matters within the exclusive province of the jury, which the court can not invade by shaping its instructions so as to deprive the jury of acting on any given hypothesis, except when there is no proof tending to sustain it. 4. One made infamous by conviction for dealing faro is not thereby rendered incompetent to testify as a witness. 5. Reasonable doubt. — The instruction is not objectionable that “the jury can not convict on a mere preponderance of testimony, but the law presumes the prisoner innocent until he is proven guilty beyond a reasonable doubt. Proven guilty beyond a reasonable doubt means that the jury must be convinced from the testimony of the truth of every fact necessary to establish his guilt.”
74 Ky. 353Thompson v. Heffner's executors (1875)
1. Sureties are creditors. — Where sureties are preferred by a mortgage from the principal debtor, made in contemplation of insolvency, they should be regarded as creditors within the meaning of the act of 1856, as the mortgage inures to the benefit of the creditor to whom the sureties are bound. (Terrill v. Jennings, 1 Met. 458; Corn v. Sims, 3 Met. 397.) 2. Insolvency of the debtor and a sale, mortgage, or assignment to or for the benefit of a creditor must concur before the trust for creditors can result from the operation of the statute. (2 Duv. 277.) If the facts are such as to show that at the time of making a conveyance preferring one creditor to others the debtor must have known he was insolvent, it will be within the statute. (4 Met. 23.) But if he did not know and contemplated becoming insolvent, and made such conveyance, it is equally obnoxious to the law. 3. Probability of insolvency. — Reasonable certainty of liability as surety. — When the assets of a debtor exceed his own debts, and it is sought to bring a sale, mortgage, or assignment, made by him to a creditor within the statute because his liabilities as a surety when added to his own debts exceed his assets, it must be shown that he knew-at the time, with reasonable certainty, that he would be called on to pay enough of his liabilities for others, when added to his own indebtedness, to render him unable to pay all. 4. Lien for indemnity — Encumbered property. — Where two persons exchange property, and that of one being encumbered by a mortgage, and a lien for indemnity is reserved on that given in exchange for it, that lien is in effect for purchase-money, and is an encumbrance on the property, and execution sale thereof should be made as of encumbered property. 5. The failure to notice such lien, in the levy of an execution or the return of sale, may be a ground for quashing the sale in a direct proceeding for that purpose, but does not render it invalid when collaterally attacked. 6. Homestead sight retained when exchanged eor other property. — -Where an exchange of real estate is made, if either of the parties thereto is at the time entitled to a homestead right in the property he parted with, he takes the same right in the property he receives in exchange.
74 Ky. 365Farlee v. Rodes (1875)
CASE 27-PETITION EQUITY- APPEAL PROM BOYLE CIRCUIT COURT. CITED Civil Code, section 889. 4 Met. 30, Bondurant v. Apperson. 7 Bush, 623, Helm v. Short, &e. 2 Bush, 232, Merriwether v. Sebree, &c. CITED Civil Code, section 884. 9 Bush, 665, Lawless v. Barger, &c. 3 Bush, 660, Hughes’s adm’rs v. Brown. 1 Met. 510, Helm v. Bently. 2 Litt. 147, May, &c. v. Marshall, &c.
74 Ky. 367Hardin's ex'rs v. Harrington (1875)
1. Prior equity in point of time has the prior right. The recognized rule in regard to equities is, that he who has the prior equity in point of time has the prior right, and therefore a party resisting an equity, in order to maintain his defense, must protect himself either under an elder equity, or he must have purchased the legal title bona fide, without notice, for a valuable consideration; and not only so, but must have paid the purchase-money. (2 Story’s Equity, 11th ed., p. 829.) 2. Constructive as well as actual notice will affect a purchaser. But where the vendot had the land' inclosed and was residing upon it, and there was no fact or circumstance to put the purchaser upon inquiry as to equities in others, he will not be affected by such equities. 8. If a person who has notice sells to another who has no notice, and is a bona fide purchaser for a valuable consideration, the latter may protect his title, although it was affected with the equity, arising from notice, in the hands of the person from whom he purchased. (1 Story’s Equity, p. 427; Arterburn v Gwathmey, 3 Bibb, 308; Lindsey v. Rankin, 4 lb. 482.) 4. Infants holding an equity in the land when the purchase was made, and the legal title acquired by an innocent purchaser, are in no better condition than they would have been in if they had been adults. 5. The only question, in such a case-is, was the purchaser guilty of fraud in making the purchase? If he had notice of the equity asserted by others, he was; if he had no such notice, he was not. 8. When power is given to three executors to sell land, and a deed is made by two of them, and the pleadings show that one of the executors was dead when the suit was brought, this court will presume he died before the execution of the deed. 7. Effect of notice before paying all the purchase-money. Where it appears that one claiming to hold against a prior equity, on the ground that he was an innocent purchaser, had received a deed, but had not paid all the purchase-money when he received notice, he will be liable to the holders of the equity for so much of the purchase-money as remained unpaid when he received notice.
74 Ky. 375Williams v. Taylor (1875)
Case 29 — PETITION FOE EETEIAL APPEAL FROM MASON CIRCUIT COURT. CITED Civil Code, secs. 445, 446, 574, 579, 584, 319, 322, 204, 461, 141, 242, 243, 289, 691, 741, 800, 151, 440. Acts of 1865-66, p. 664. Acts of 1867, vol. 2, p. 153. Freeman on Judgments, sec. 564. Co. Litt. 246. 1 Story’s Eq., sec. 549. Revised Statutes of Iowa, 1860, sec. 8160. Law Rep. 7, ch. App. 646. Barton’s Suit in Eq. (Holcomb’s ed.) 154. 5 House of L. Ca. 185, Jordan v. Money. 7 Kansas, 110-24, Carithers v. Weaver. 6 Ad. & E. 469, Pickard v. Sears. 3 Met. 502, Megowan v. Pennebaker. 1 Met. 281, Todd v. Dowd. 3 Met. 469, Hooker v. Gentry. 3 Bush, 491, Allen v. Graves. 9 Bush, 285, Stump v. Martin. 4 Amér. Law Rec. 442, January, 1875. 2 Met. 550, Vanbussum v. Maloney. 2Bush, 211, Yowell v. Gaines. 2 Duvall, 429, Jackson v. Speed. 1 Met. 649, Gill v. Johnson. 4 Met. 118, Duncan v. Wickliffe. 4 Met. 342, Allen v. Brown. ' 2 Duvall, 76, Adams v. Settle. 6 Ohio St. 81, Irwin v. Bank of Bellefontaine. 7 J. J. Mar. 340, Clay v. Rogers. 1 Vesey. Jr. 211, Martin v. Martin. 2 Maddock’s Ch’y, 495. 2 Smith’s Ch’y Pr. 267. 1 Johns. Ch’y, 619, Thompson v. Brown. 4 Paige, 374, Brooks v. Gibbons. 7 Paige, 583, Innes v. Lansing. 1 Maddock, 529, Angelí v. Haddon. 3 Russell, 130, Gillespie v. Alexander. 3 Paige, 164, Wilder v. Keeler. 4 Met. 30, Bondurant v. Apperson. 3 Hoffman’s Ch. Pr. 244. 1 Leigh, 108, Harvey v. Branson. 4 Paige, 561, Taylor v. Read. 2 Barb. Ch. 21, Coither v. Crane. ' 2 Litt. 258, Larue v. Larue. 7 J. J. Mar. 456, Talbot v. Todd. 4 Met. 108, Hanson v. Bowyer. 7 Paige, 18, Mills v. Hoag. 9Paige, 689, Johnson v. Everett. 4 Bush, 413, Offutt v. Bradford. 6 Bush, 65, Bethel v. Bethel. 5 Eng. (Ark.) 333, Ex parte Crittenden. 5 Mon. 278, Robinson v. Scott. 5 Mon. 249, Chaney v. Cooke. 5 Mon. 79, Martin v. Wade’s ex’rs. 2 J. J. Mar. 117, Oldham v. Halley. 4 J. J. Mar. 607, Field v. Craddock. 4 Dana, 16, Clark v. Bell. 7 B. Mon. 386, Richardson v. Parrott’s heirs. 7 B. Mon. 104, Champlin v. Foster. 1 J. J. Mar. 498, Hays v. May’s heirs. 4 Dana, 404, Boone v. Helm. 3 B. Mon. 453, Lewis v. Outton’s adm’r. 5 J. J. Mar, 251, Hanks v. Greenwade. 4 Mon. 414, Jameson v. Moseley. 4 J. J. Mar. 38, Phillips & Co. v. Alcorn. 9 B. Mon. 9, Craig v. McBride’s heirs. 1 B. Mon. 149, Portwood v. Outon. 7 Bush, 545, Cofer v. Miller. 1 Bush, 538, Hahn v. Pindell. 4 Bush, 70, Jarboe v. Colvin. 10 Allen, 436, Langdon v. Doud. 19 Wall. 146, Sawyer v. Prickett. 42 N. Y. 443, Shapley v. Abbott. 51 N. Y. 280, White v. Aston. 16 Weekly Reporter (Irish Com. Pleas, 1867), 34. 18 Ohio St. 38, 41, McKinzie v. Steele. 49 N. Y. Ill, 115, Halloney v. Horan. 14 Wendell, 544^46, Jenkins v. Wild. 34 Iowa, 266, Conklin v. Johnson. 48 N. Y. 62, Kerr v. Blodgett. 11 Yesey, 602, Lashley v. Hogg. 15 B. Mon. 48, Maysvilie & Lexington R. R. v. Punnett. 18 B. Mon. 825, Turner v. Browder. CITED Civil Code, secs. 397, 403, 404, 440 to 446. 3 Blackstone’s Com. 497. 7 Bush, 625, Helm v. Short. 2 Met. 551, Vanbussum v. Maloney.. 4 Dana, 559, Graham v. Hardin. 2 Bush, 271, Arbegust v. City of Louisville. . 6 Bush, 65, Bethel v. Bethel. 2 Duvall, 427, Jackson v. Speed. 15 B. Mon. 18 B. Mon.
74 Ky. 380Hansford's administratrix v. Payne & Co. (1875)
Case 30 — PETITION ORDINARY APPEAL PROM MERCER CIRCUIT COURT. CITED Revised Statutes, chap. 28, secs. 1, 4. General Statutes, chap. 10, p. 179; lb. chap. 57, sec. 3. Shearman & Redfield on Negligence, secs. 290. 291, 18, 14, 293, 300. : 9 Bush, 522, Lon. & Port. Canal Co. v. Murphy’s adm’r. 9 Bush, 732, L., C. & L. R. R. Co. v. Case’s adm’r. 4 Bush, 509, L. & N. R. R. Co. v. Robinson. 2 Duvall, 114, L. & N. R. R. Co. v. Collins. 2 Duvall, 577, Board of Int. Imp. Shelby Co. v. Scearce. 2 Met. 155, Wall v. Wayland. 4 Littell, 377, Mason v. Rogers. 13 B. Mon. 219, Fleet & Semple v. Hollenkemp. 14 B. Mon. 165, Eden v. Lexington & Frankfort R. R. Co. 22 ÍT. Y. 194, Brown v. Buffalo & State Line R. R. Co. 23 N. Y. 465-86. 30 Conn. 188. CITED 3 Seld. 464, Montgomery Co. Bank v. Albany City Bank. 13 B. Mon. 466, Bible v. Caplinger. 18 Barb. 494, Budd v. Bingham. 19 Barb. 136, Gould v. Glass.
74 Ky. 386McDormant v. Lou., Cin. & Lex. R. R. (1875)
1. Jurisdiction in suits to enforce judgments. — The provisions of section 474 of the Civil Code show that actions to enforce the satisfaction of judgments were not intended to be governed by the rules by which the jurisdiction of actions in general is to be determined. Such actions are local to the extent that they may be instituted in the court from which the execution issued or in the court of the county in which the defendant may reside, and they are transitory to the extent that they may be instituted in any county in which the defendant can be served with process. 2. Neither the amendment of January 8,18'74, to section 77 of the Civil Code, nor that of February 26,1870, to section 103, can be construed to enlarge the operation of section 474, so as to confer jurisdiction under it where it did not theretofore exist. 3. A SUIT TO ENFORCE A JUDGMENT AGAINST A RAILROAD CORPORATION created by the laws of this state, if not brought in the county whence the execution issued, must be brought either in the county in which it has its principal office or place of business, or in the county in which its president or chief officer resides. The Franklin Cireuit Court has no jurisdiction of an action to enforce a judgment rendered by the Trimble Circuit Court against a railroad company, the principal office and place of business, and residence of the president of said corporation,-being in Jefferson County.
74 Ky. 390Smith v. Belmont & Nelson Iron Co. (1875)
1. Orders of attachment and levies thereunder are prima fade valid and regular. 2. The act authorizing creditors to garnishee before judgment not REPEALED. — The act of March 15, 1870, “to authorize creditors in certain cases to garnishee before judgment or return of no property,” is in effect an amendment to section 221 of the Civil Code, and was not repealed by the adoption of the General Statutes. " No intention to repeal can he inferred from the application of the same remedy to justices’ courts by section 5, article 21, chapter 28 of the General Statutes, which does not purport to regulate the general subject of attachments. This is not in conflict with the rule in the Broaddus will case, 10 Bush, 299. 3. Where a claim already reduced to judgment becomes the PROPERTY IN EQUITY OF ANOTHER BY ASSIGNMENT, he will not be entitled to a second judgment, but can only enforce the first by the remedies provided by law for the enforcement of the satisfaction of judgments.
74 Ky. 393Smith v. Young (1875)
1. Change op parties to a note is a novation — Usury.—1The execution of a new note by part of the obligors in the old, and its acceptance by the holder in lieu thereof, is a complete novation, the old debt being thereby satisfied and a new one created. Where usury has been paid in such a case, a right of action to recover it accrues at once, and consequently limitation begins to run from the novation. 2. Usury paid does not ipso pacto go to reduce the principal, but the obligation to refund can only arise upon the personal election of the borrower to reclaim it. 3. Where apter usury is paid the entire debt is discharged by a novation, before any election on the part of the borrower to reclaim the usury paid, 'it will not be applied in discharge of the new debt, if limitation has barred the right to recover it. (1 B. Mon. 314; 5 B. Mon. 92; 7 B. Mon. 441; 5 Dana, 83.) 4. Usury on the old debt included in the new, on a novation, entitles the debtor to a deduction for such usury, in a suit on the new contract. But usury actually'paid on the old debt does not taint the new contract. 5. Usury may be reclaimed as long as the debt is unpaid, although the evidences of such indebtedness have been repeatedly renewed. Usury paid at any time may be reclaimed as long as any part of the debt remains unpaid. But it is otherwise when by a change of obligors the old debt has been extinguished and a new debt created.
74 Ky. 400Pheiffer v. Harris (1875)
Case 34 — PETITION ORDINARY APPEAL PROM JEPPERSON COURT OP COMMON PLEAS. CITED Civil Code, sec 407. Waterman on Set-off, secs. 313, 331, 333, 343, 344. 6 Dana, 805, Merrill v. Souther, &c. 5 B. Mon. 76, Tenant’s heirs v. Marmaduke. 4 J. J. Mar. 75, Palmateer v. Meredith. 3 Bibb. 233, Davidson v. Geoghagan. 6 B. Mon. 119, Jeffries v'. Evans. 4 Hill (N. Y.) 559, Graves v. Woodbury. 10 Paige Ch’y, 375, Gay v. Gay. CITED Oivil Code, section 407. Story’s Eq. secs. 1040, 1046, 1057. 1 Bailey, 599, Talbert v. Harrison. 3 Watts,-78, Burns v. Thornburgh. 4 J. J. M. 75, Palmateer v. Meredith. 6 B. Mon. 119, Jeffries v. Evans. 7 Cowen, 480, Turner v. Satterlee. 6 Serg. & R. 448, Jacoby v. Guier. 2 Blackstone, pp. 3S9, 397. 14 Conn. 141, Vanbuskirk v. Hartford. 35 Maine, 52, Buck v. Swasey. 16 Vermont, 558, Campbell v. Day. 26 Vermont, 198, Loomis v. Loomis. 25 Vermont, Ward v. Morrison.
74 Ky. 403Ellis v. Jesup (1875)
1. Custody of children.&emdash;The general rule is that the father is entitled to the custody of his infant children, that right growing out of his obligation to maintain and educate them; and he may obtain their custody by the writ of habeas corpus when improperly detained from him. 2. As to the custody of children, courts will investigate the CIRCUMSTANCES AND ACT ACCORDING TO SOUND DISCRETION, and should not always interfere and take a child, even- under fourteen years of age, from the possession of a third person, and deliver it to the father against its will. Its inclination should be consulted if it is of sufficiently mature age to judge for itself, and will even control the right of the father to its possession and education when the nature of the case appears to warrant it. (2 Kent, 194.) 3. Where a father has surrendered his infant child to a third person to be maintained and educated, and he properly performs those duties, it would seem that the authority of the father over the child ceases and passes to the person standing in loco parentis. 4. A father, whose wife died, gave up his daughter two years old, to his wife’s sister to be maintained and educated, and the child remained with her without objection on the part of its father until it was 'thirteen years old, being properly cared for and educated. In this controversy, in which the father seeks to obtain the custody of her, the child was examined privately by the chancellor, and found intelligent and of competent judgment to make a proper choice, and expressed a desire to remain with her aunt. It is held that the child’s choice should control the action of the court. It was not error for the chancellor to examine the infant privately out of court as to her wishes.
74 Ky. 417Baldwin v. Commonwealth & Commissioners of Sinking Fund (1875)
1. A Conditional acceptance op the highest bid being assented to and accepted by the bidder, the sale was thereby made effectual. 2. Sale op turnpike stock belonging to the jstate by commissioners op THE SINKING pund held to be valid and binding on the state, although the commissioners of the sinking fund refused to execute the sale and the legislature afterward repealed the act authorizing the sale to be made. The legislative act directed the commissioners of the sinking fund to sell the stock owned by the state in turnpike - road companies, and the commissioners having, in accordance therewith, advertised for sealed bids for the purchase thereof, made a conditional acceptance of a bid offered, and verbally directed their agent to notify the bidder of their action, which being done the bidder accepted in terms the conditions imposed, and so notified the commissioners. Held, that the contract was completed, and the title passed, and the right of the parties became fixed when notice of the • acceptance of the modified terms was received by the board of commissioners. It was not essential that the records of the board of sinking fund commissioners should show that notice of its action was ordered to be given to the bidder. The execution of bond by the bidder with surety can not be regarded as a condition precedent, the performance of which was necessary to invest the purchaser with the right to the property. (Duncan v. Lewis, 1 Duvall, 133; Thompson v. Gray, 1 Wheaton, 75; Crawford v. Smith, 7 Dana, 61.) 3. It was not a waiver of his rights as purchaser for him to apply for and accept the state’s proxies to vote the stock he had purchased; it was not inconsistent with his claim. 4. The state is bound by its contracts as well as the citizen. The act under which the turnpike stock was sold is a part of the agreement. 5. The legislature could not, by repealing the act authorizing the sale, impair the obligation of the contract or deprive the purchaser of his right to enforce it against the commissioners according to its terms. (Blair v. Williams and Lapsley v. Brashears, 4 Littell, 66.) The commissioners of the sinking fund are compelled to execute the contract and make the transfers of the stock as if the act authorizing the sale had not been repealed.
74 Ky. 435Brown v. Trustees of Catlettsburg (1875)
Case 37 — PETITION EQUITY APPEAL EROM BOYD CIRCUIT COURT. CITED Acts 1871, vol. 2, p. 123. Revised Statutes, 2 Stanton, p. 102. Herman on Estoppel, 509. Bigelow on Estoppel, 502. Littell’s Sel. Ca. 299, Robertson v. Smith’s heirs. High on Water-courses, 202. 3 Mon. 143. 1 Littell, 147. 1McCord’s Rep. 508. 1 Mon. 97. 3 Bush, 269, Berry v. Snyder. 8 Bush, 326, Miller, &c. v. Hepburn. 8 B. Mon. 236, Rowan’s ex’rs v. Town of Portland. 1 Mar. 62, McGee v. Morgan. 2 Mar. 15, Phillips v. Rothwell. 3 Litt. 382, Hinton v. Fox. 7 Mon. 569, Speed v. Braxdell. 2Met. 221, Phillips v. Cov. & Cin. Bridge Co. 2 Met. 146, Chiles v. Drake. 3 Met. 566, Johnson v. Higgins. 8 Watts, 474, Covert v. O’Conner. 4 Wis. 486, Walker v. Shepardson. 1 Dillon on Municipal Cor. p. 191, secs. 67, 195. 2 Bush, 477, City of Columbus v. Grey. 2 Story’s Eq., sec. 859. 3 Iowa, 1, McManus v. Carmichael. 12 B. Mon. 488, Armitage v. Wickliffe. 12 B. Mon. 380, Dorch v. Thompson. 18 Ohio, 94, McGlaughlin v. Stephens. 10 Wall. 504, Yates v. Milwaukee. 16 Pick. 125, Austin v. Murray. 10 Iowa, 107, Grant v. Davenport. 10 B. Mon. 159, Grace v. Mercer. 32 Iowa, 106, Tomlin v. Dubuque, &c. 12 B. Mon. 610, Dudley v. Trustees of Frankfort. CITED Const, of Ky., art. 2, sec. 37, Bill of Rights, sec. 1. 8 B. Mon. 258, Rowan v. Portland. 7 Cowen, 349, Vanderbilt v. Adams. 8 Johns. 418, Buck, &c. v. Sedbury. 1 Jones, 49, City of Raleigh v. Sorrell. 7 Iowa, 102, City of Davenport v. Kelly. 1 Black, 31, Dutton, &c. v. Strong, &c. 7 Wall. 272, Railroad Co. v. Schurmeir. 10 Wall. 497, Yates v. Milwaukee. 21 Wall. 393, Atlee v. Packet Co. 12 How. 312, Cooley v. Port Wardens of Phila. ■ 10 Bush, 64, Bowling Green v. Carson. 14 Wend. 87, Stokes v. City of New York. 11 Pick. 168, Nightingale petition. 32 Iowa, 82, Dubuque v. Stout. 10 Wend. 100, Buffalo y. Webster.
74 Ky. 443Spratley v. Mutual Benefit Life Insurance (1875)
Case 38 — PETITION ORDINARY— APPEAL FROM JEFFERSON COURT OF COMMON PLEAS. CITED Angelí on Limitations, secs. 16, 95, 96. Bliss on Life Insurance, secs. 254, 258, 359, 362, 363. Chitty on Contracts, ed. 1860, p, 636. Digest Fire Ins. Decisions, 241. Story’s Equity, sec. 1520. 9 Wend. 163, Cornell v. LeRoy. 8 Geo. 534, Mu. Ben. Ins. Co. v. Reese. 3 Bush, 328, Northwestern Ins. Co. v. Atkins. 6 Blatch. 445, Semines v. City Fire Ins. Co. 9 Barb. 191, Sexton v. Montgomery Mu. Ins. Co. 10 Pick. 119, Codman v. Rogers. 12 Wend. 456, Inman v. Western Fire Ins. Co. 29 Ind. 236, Providence Ins. Co. v. Baum. 32 Md. 310, Providence Ins. Co. v. Martin. 12 Mich. 202, Peoria M. & F. Ins. Co. v. Hall. 29 Barb. 552, Ripley v. ¿Etna Fire Ins. Co. 13 Gray, 434, Taylor v. ¿Etna Life Ins. Co. 21 Eng. Com. Law, 468, Thorpe v. Booth. 20 Gratt. 624, Warwick v. Manhattan Life Ins. Co. CITED Civil Code, sec. 612. General Statutes, 413, secs. 17,19, 21; 686, sec. 19. Lawrence’s Wheaton, 1601 Revised Statutes, vol. 1,470, secs. 23, 25; vol. 2,134, sec. 19. Dillon’s Central Law Jour. No. 7, Smith v. Charter Oak Life Ins. Co. Story, Conflict of Laws, sec. 278, a. U. S. C. C. W. Dis. Tenn., Tait v. New York Life Ins. Co. The Protector, 12 Wallace, 700. The Rapid, 8 Craneh, 160. United States Statutes at Large, vol. 12,1262; vol. 13, 763. Virginia Acts of 1865-66, pp. 180, 191; 1866-67, p. 726. Virginia Code of 1860, p. 637. Bliss on Life Insurance, secs. 284, 371. 2 Greenleaf, 253, Atwood v. Clark. 1 Allen, 296, Baxter v. Chelsea Mutual Fire Ins. Co. 4 East. 410, Brandon v. Curling. 2 Bigelow, L. & A. Ins. R. 16, Campbell v. American Popular Ins. Co. 5 B. Mon. 448, Chamberlain v. Maitland & Co. 3 Sumner U. S. C. C. R. 530, Cocker v. Franklin Hemp Co. 6 Hill, 526, Commonwealth of Kentucky v. Bassford. 1 Cin. Sup. C. R. 574, Eureka Ins. Co. v. Parks. 9 Blatchf. C. C. R. 234, Plamilton, ex’r v. Mut. Life Ins. Co. 6 Vroom, 615, Hillyard v. Mutual Benefit Life Ins. Co. 3Robertson, 332; S. C. 44 N. Y. 276, Howell v. Knickerbocker Life Ins. Co. 3 Comst. 270, Hyde v. Goodnow, 8 Exchequer, 922, Jones y. Gibbons. Bliss on Life Ins. sec. 411, Mitchell v. Mut. Life Ins. Co. 1 Hawks, N. C. 41, Murry v. Smith." 2 Cin. Sup. C. R. 326, Mut.- Ben. 'Life Ins. Co. y. French. 8 Ga. 534, Mutual Benefit Life Ins. Oo. y. Ruse. 7 Bush, 179, New York Life Ins. Co. v. Clopton. 5 Pickering, 168, Nichols v. Squire. ■ 2 Abb. Pr. N. S. 167, O’Reilly v. Mutual Life Ins. Co. 8 Wallace, 183, Paul v. Virginia. 3 Bibb, 105, Phillips v. Morrison. 7 Wallace, 390, Riddlesbarger y. Hartford Ins. Co. 1 Disney, 335; S. C. 2 Disney, 106, Robert v. New England Life Ins. Co. 2 Penn. R. 71, Roberts v. Beatty. 6 Blatchf. O. C. R. 445, Semmes v. City Fire Ins. Co. 4 Met. (Ky.) 301, Short y. Trabue. 7 Watts & Serg. 349, Susquehanna Ins. Co. v. Perrine. 5 T. R. 695; S. C. 1 Bos. & P. 471, Tarleton v. Staniforth. 9 Howard, 390, Tayloe y. Merchants’ Fire Ins. Co. 7 Mon. 584, Taylor v. Bank of Illinois. 8 B. Mon. 306,’ Tyler v. Trabue. 2 Kernan, 258, Western v. Genesee Mutual Ins. Co. 6 Jones, N. C. 558, Woodfin v. Asheville Ins. Co. 6 Am. Law Reg. 485, Wright v. Sun Mutual Ins. Co. 20 Grattan, 614, Manhattan Life Ins. Co. v. Warwick. 26 Ala. 273, Adams v. Adams. 20 Me. 67, Atkinson v. Brown. 16 Pick. 231, Atwood v. Cobb. 12 Mass. 557, Bartlett v. King. 13 Mass. 4, Blanchard v. Russell. 50 N. Y. 610, Cohen v. Mutual Life Ins. Co. 18 Iowa, 431, Coles v. Iowa State Mutual Ins. Co. 58 Penn. St. 449, Diehl v. Adams Co. Mutual Ins. Co. 44 Ga. 119, Dillard v. Manhattan Life Ins. Co. 47 Barb. 127, Fried v. Royal Ins. Co. 16 Johns. R. 438, Griswold v. Waddington. 13 Am. Law Reg. 103, Feb’y, 1874, Hancock v. New York Life Ins. Co. 16 Me. 164, Hill v. Hobart. 15 Me. 350, Howe v. Huntington. 12 Wendell, 456, Inman v. Western Fire Ins. Co. 14 Me. 57, Kingsley v. Wallis. 99 Mass. 254, Kline v. Baker. 11 Johns. R. 260,'Lawrence v. Ocean Ins. Co. 51 Penn. St. 411, Mitchell v. Lycoming Ins. Co. 10 Allen, 521, Pratt v. Farrar. 42 N. Y. 54, Robinson v. International Life Assur. Society. 23 N. Y. 516, Ruse v. Mutual Benefit Life Ins. Co. 50 N. Y. 626, Sands v. New York Life Ins. Co. 15 Me. 40, Sawyer v. Hammat. 18 Iowa, 322, Simeral v. Dubuque Mutual Fire Ins. Co. 12 Met. (Mass.) 284, Spoor v. Spooner. 45 Miss. 581, Statham v. New York Life Ins. Co. 13 Gray, 424, Taylor v. TEtna Ins. Co. 29 Conn. 68, Treadway v. Hamilton Mutual Ins. Co 32 N. Y. 441, Walsh v. Washington Ins. Co. 12 East. 183, Want v. Blunt. 16 N. Y. 310, White v. Haight. 26 N. Y. 122, White v. Madison. 101 Mass. 469, Williams v. Powell. 103 Mass. 78, Markey v. Mutual Benefit Life Ins. Co. '
74 Ky. 450Reed v. Welsh (1875)
Case 39 — PETITION EQUITY APPEAL PROM BOYLE CIRCUIT COURT. CITED Revised Statutes, chap. 80, sec. 24. Hill on Trusts, secs. 47-60, 100, 101, 102, 214, p. 41. Bispham’s Principles of Eq., secs. 75, 78, 80, 65, 95. Story’s Eq. 392, 964. Wills on Trusts, 47-60. Tiffany & Bullard on Trusts, pp. 209, 210, 211, 784, 786. Perry on Trusts, secs. 12, 24, 18. 8 Wheaton, 383, Caldwell v. United States. 1 Bibb, 134, McGee v. Thompson. 8 B. Mon. 569, Lane v. Coleman. 6 Dana, 473, Ogden v. Grant. 3 Chan. 265, Pratt v. Ayer. 2 Dana, 79, Muldrow’s heirs v. Fox’s heirs. 4 Dana, 359, Moore v. Moore. 5 Mon. 154, Breckinridge v. Waters. 2 Bush, 63, Smith v. Yertrees. 1 J. J. Mar. 287, Yanada’s heirs v. Hopkins’s adm’r. 8 Dana, 199, Dougherty, &c. v. Linthicum. 1 Spruce’s Eq. Juris. 506, 497. 2 Flint on Real Prop. 779. 4 Pick. 71, Ames v. Ashley. 4 Sandf. 112, Gaines v. Tradesman’s Bank. 2 Watts & S. 71, Morrison v. Beavin. 2 Washburn on Real Prop., pp. 470, 468, 358, 424, 475. 3 J. J. Mar. 236, Whitaker v. Blair.. 4 Bush, 43, Belknap v. Martin. 17 B. Mon. 548, Lyons v. Field. 15 B. Mon. 645, City of Louisville v. University of Louisville. 10 Ga. 534, Gordon v. Green. 16 Pick. 222. 16 B. Mon. 241, Ely v. Hair. 2 Atk. 216. 25 Miss. 183, Norman v. Bennett. General Statutes, p. 845. 19 Wis. 480, White v. Fitzgerald. Story on Bailments, 286. 15 B. Mon. 625, Butler v. Miller. Story’s Equity, sec. 892. CITED General Statutes, page 588, section 22. Blackstone, chapter 20. Story on Agency, sees. 164, 147, 150, 488, 477, 467, 468. Hill on Trustees, star page 303. 2 Parsons on Con., 5th ed. p. 492; Ib. vol. 1, chap. 7, sec. 3. 1 Bibb, 152, Harrison v. Hobbs. 2 Story’s Eq. sec. 964. 1 Perry on Trusts, page 26, secs. 343, 344. 2 Perry on Trusts, sec. 602. 2 Washburn’s Real Prop., pp. 453, 616, 617, 610, 484, 473.' 3 Washburn’s Real Prop., 3d ed. page 333. 8 Wheaton, 174, Hunt v. Rousmanier. 4 Dana, 357, Moore’s heirs v. Moore’s devisees. 8 Bush, 46, Prather v. McDowell. 6 Dana, 473, Ogden v. Grant. 1 J. J. Mar. 285, Yanada’s heirs v. Hopkins’s adm’rs. 8 How. 451, Leroy v. Beard. 4 Campbell, 272, Watson v. King. 5 Dana, 513, Hancock v. Byrne. 4 Bush, 43, Belknap v. Martin. 2 Bush, 63, Smith v. Yertrees. 17 B. Mon. 380, Edwards v. Woolfolk’s adm’rs. 13 B. Mon. 565, Harris v. Rucker. 15 B. Mon. 617, Butler v. Miller. 13 How. 345, Yery v. Levy. 17 B Mon. 543, Lyons v. Field. CITED • Revised Statutes, 2 Stanton, pages 230, 463, sec. 23. Revised Statutes, 1 Stanton, page 262. Perry on Trusts, sections 304, 328, 343, 499, note 1. Fisher on Mortgages, side page 147, section 220. Story On Agency, secs. 74, 150', 164, 477, 488, 489. General Statutes, 844. 1 Bibb, 152, Harrison v. Hobbs. 5 Mon. 567, The Farmers v. Respass. 2 Met. 338, Hampton v. Morris, &c. 8 Wheat. 174, Hunt v. Rousmanier’s adm’r. 1 J. J. Mar. 285, Yanada’s heirs v. Hopkins’s adm’r. 2 Story’s Equity, sec. 964. 1 Parsons on Contracts, chapter 7, section 3. 2 Washburn on Real Prop., sections 26, 27, 11. 2 Burr, 978, Weston v. Mowlin. 1 Hilliard on Mortgages, chap. 8, sec. 1; chap. 11, sec. 1. 4 Johns.' 43, Jackson v. Willard.. 2 Cow. 195, Wilson v. Trap. 7 Humph. 121, McGaw v. Marshall. 9 Miss. 280, Thayer v. Campbell. 2 Dana, 79, Muldrow v. Fox. 8 B. Mon. 569, Lane v. Coleman. 15 B. Mon. 625, Butler v. Miller. 30 Ind. 158, 167. Coke on Litt., page 460. 11 John. 534, Bunion v. Mersereau.
74 Ky. 464Robinson v. Webb (1875)
Cases 40, 41 — PETITION'S ORDINARY APPEAL EROM JEEEERSON COURT QE COMMON PLEAS. CITED Shear. & Red. on Negligence, secs. 60, 63, 64, 76, 82,496, 42. Story on Agency, sec. 453. 2 Hilliard on Torts, 436, 446. 2 Greenleaf’s Evidence, 232, b. 5 Gillen, 509, Armstrong v. Conley. 5 Gillen, 425, Johnston v. Barbour. 4 B. & Aid. 590, Craft v. Allison. 2 Robertson, N. Y. 307, Beamish v. Hoyt. 2 Robertson, N. Y. 303, Seabrook v. Hecker. 8 Cal. 489, etc., Boswell v. Laird. 4 Selden, 222, Pack v. Mayor of New York. 1 Kernan, 432, 435, Kelly v. Mayor of New York. 7 Bosworth, 513, O’Rourke v. Hart. 9 Mees. & Weis. Ex. 710, Rapson v. Cubett. 4 Exch. 244, 257, Reedie v. Railway Co. 5 Exch. 721, Knight v. Fox. 4 Exch. 257, Hef5ert v. London & Northwestern R. R. Co. 2 Black, 424, etc., City of Chicago v. Robbins. 2 Duval], 139, Matheny v. Wolffs. 1 Selden, Blake v. Ferris. 1 P. F. Smith, 475, Hunt v. Pennsylvania R. R. Co. 2 Hilliard on Torts, pp. 436, 446. 4 Bos. 148, Potter v. Seymour. 1 B. Mon. 96, Ferguson v. Terry. 12 Allen, 56, Howe v. Wemarch. 19 Wend. 347, Wright v. Wilcox. 24 Conn. 40, Thames St. Co. v. Housatonic Co. 30 How. Pr. 315, Garoy v. Donn. 26 Ind. 72, Evansville Railroad Company v. Bauer. 16 B. Mon. 582, Kountz v. Brown. 45 111. 455, Schwartz v. Gilmore. 30 Mo. 207, Deford v. State. 50 N. Y. 639, Brooks v. Curtis. 38 Cal. 691, De Pratt v. Lick. 17 N. Y. 204, Storrs v. City of Utica. 36 Barb. 288, Benedict v. Marlin. 21 Iowa, 578, Kellogg v. Payne. 14 Minn. 43, Shell v. Second National Bank. 12 Am. Law Reg. O. S. 354, Pointer v. City of Pittsburg. 57 Pa. 374, 382, etc., Allen v. Willard. 35 N. J. 17, Cuff' v. Newark & New York Railroad Company. 73 Eng. Com. Law, 867, Overton & Freeman. 16 Eng. Com. Law and Eq. 443, Peachy v. Rowland. 32 Law Jour. Rep., part 8, N. S., Gray v. Hubble. 27 Conn. 280, Corbin v. The American Mills. 59 Me. 520, Eaton v: European & N. Amer. R. W. Co. 17 Mo. Barry v. City of St. Louis. 25 111. 438, Scammon v. Chicago. 14 Maine, 96, Grigg v. Fleckenstine. 104 Mass. 140, Mayor v. Railroad Company. CITED 3 Law Rep. (Eng. & I. Appeal Cases), 340, Ryland v. Fletcher. 2 Black. 427, Chicago v. Robbins. 3 Gray, 349, Hilliard v. Richardson. 1 Chitty’s Pleadings, side page 151. 2 Duvall, 138, Matheny v. Wolffs. 6 Exch. 499, Hale v. Railway Company. 15 Com. B. 515 (N. S. 376), Baird v. Williams. 30 Md. 204, Deford v. The State, &c.
74 Ky. 484Robinson v. Speed (1875)
74 Ky. 485Stevenson v. Martin (1875)
1. Advancements are to be estimated at their value when made. — • But an advancement to be enjoyed at a puture period, and secured by deed, must be deemed to have been made or given at the time it was made complete by the actual possession and enjoyment of the property advanced. (Hook v. Hook, 13 B. Mon. 528.) 2. Conveyance to husband op grantor’s daughter. The intention of the donor to advance to his daughter will he presumed from the fact that he conveys to her husband upon the sole consideration of the existence of the marriage relation between them. (Barber v. Taylor’s heirs, 9 Dana, 84.) But if she be dead at the time of the conveyance to her husband no such presumption will be entertained as against her children. 3. GlPTS to GRANDCHILDREN DURING THE LIPE OP THEIR PARENTS ARE NOT ADVANCEMENTS TO SUCH PARENTS. The statute does not provide that such gifts shall be advancements; its language rebuts any such implication. They will not be converted into advancements to such grandchildren by the subsequent death of the parent during the lifetime of the grandparent. Such gifts are mere gratuities at the time they are made, and are chargeable neither to the grandchildren nor their parents, and subsequent events do not and can not change their legal character.
74 Ky. 495L. & N. R. R. v. Fox (1875)
1. Evidence that other parts oe the road were in bad condition was inadmissible in this action for damages resulting from a railroad accident caused by a broken rail in the track. 2. Evidence oe negligence which could not have contributed to the accident or injury complained of, was clearly inadmissible. 3. The court properly modieied an instruction, asked by one party, which was unobjectionable so far as it went, by adding thereto the converse of the propositions embodied therein. 4. “Excessive damages, appearing to have been given under THE INFLUENCE OF PASSION OB. PREJUDICE,” ÍS a good ground for the reversal of the order of an inferior court overruling a motion for a new trial on that ground. (Civil Code, subsec. 4 of sec. 309.) This action was brought to. recover $150,000 damages for personal injuries caused by a railroad accident, for expenses of cure, alleged to have been $5,000, and for value of baggage lost by plaintiff, alleged to have been of the value of $500. On the trial compensatory damages alone were claimed by the plaintiff. At the instance of the plaintiff the jury was instructed that if they found for the plaintiff they should find such sum, not exceeding the amount claimed ($150,000); as upon all the evidence they believed would fairly compensate him for the injuries received, expenses incurred, and losses suffered as the direct result of the accident. The jury returned a verdict, and the court rendered a judgment in favor of the plaintiff against the railroad company for $35,500. The order of the trial court overruling the motion of the defendant for a new trial on the ground of “excessive damages, appearing to have been given under the influence of passion or prejudice,” is reversed, with instructions to that court to grant a new trial. 5. Power of the court of appeals to reverse on the ground of EXCESSIVE DAMAGES. ITeld that— If a motion for a new trial is overruled and judgment is rendered upon a verdict for excessive damages, appearing to have been given under the influence of passion or prejudice, the action of the court may be revised by this court; and if the motion appears to have been improperly overruled, this court has the same jurisdiction to reverse the order for that error that it has to reverse for any other.” . . . “ Excessive damages, appearing to have been given under the influence of passion or prejudice, being made one of the grounds upon which the nisi prius courts may grant new trials, and this court having jurisdiction to revise their orders, has as much power, and is as much bound to reverse an erroneous order overruling a motion for a new trial based on the ground that the verdict is excessive- as to reverse a similar order made on a motion based upon any other ground.”
74 Ky. 517Crowley v. Vaughan (1875)
Cases 44-46 — PETITIONS EQUITY APPEALS PROM LOUISVILLE CHANCERY COURT. CITED Champerty Act of 1824. Revised Statutes, chap. 12, secs. 2, 4. 9 Bush, 415, Swager v. Crutchfield, &e. 4 Dana, 563, Griffith v. Dicten. 1 Dana, 567, Wash v. McBrayer. 1 Dana, 481, Gaines, &c. v. Buford. 5 B. Mon. 159, Baley v. Deakins. 3 Met. 516, Barret v. Coburn. 2 Met. 157, Wall v. Wayland. 9 Dana, 234, Thruston v Masterson. 20 How. 467, Roberts v. Cooper.. CITED Revised Statutes, chap. 12, 1 Stanton, p'. 226. 7 Bush, 355, Harman v. Brewster. 7 Dana, 36, Cardwell v. Spriggs.
74 Ky. 523Smith v. McClelland (1875)
1. Infringement of patent rights. — The acts of congress have vasted ’ the federal courts with exclusive cognizance of all infringements of patent rights. (Parsons v. Barnard, 7 John. 144.) The state courts have no jurisdiction of actions for an infringement of the rights secured by a patent.
74 Ky. 527Johnston v. Louisville (1875)
Case 48 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Dillon on Mun. Cor., p. 204. Act of Tenn. Leg. of October 25, 1797. Blackwell on Tax Titles, 86, 47. Broom’s Maxims, 11, pp. 3, 4. Charter of 1870 of Louisville, sees. 73, 63, 73, 74. Jacobs’s Law Dictionary, “Tax.” Constitution of United States, art. 1. Brightley’s Digest, 164. Dwarris, 767. Civil Code, sec. 647. 4 Hill, 76. 1 Mo. 428. 1 Mo. 147. • • 2 McCord, 117. 2 Gilman, 184, 486. 4Binney, 116. 1 Barb. 65. 4Mass. 471. . 9 Pick. 496. 2 Burrows, 1157. 2 Duteher, 397. 3 Met. (Mass.) 520, Pierce v. City of Boston. 2 Cranch, 127, Head v. Prov. Ins. Co. 8Bush, 208, Campbell Co. Ct. v. Taylor. 7 Bush, 603, Kniper v. The City of Louisville. 6 Wheaton, 119, Thatcher v. Powell. 2 Con. Wheat. R., 154. 4 Peters, 170, Beaty v. Knowler. 4 Hill, 76, Sharpe v. Spier. 5 Cranch, 1, Alexander v. The Mayor, &e. 8 Cranch, 53, Alexandria v. Preston. 9 Mo. 509, St. Louis v. Russell. 3 Ohio. 63, Ohio v. Hibbard. 5 Ohio, 14, Ohio v. Gazley. 2 Clifford, 601, U. S. v. Washington Mills. 2 Yerg. 167, Mayor v. McKee. 1 La. Ann. 435, Egerton v. 3d Mu. of N. O. 6 Harris & J., Mayor v. Howard. 1 Gill. & J. 499, Dugan v. Mayor. 5 Gill. & J. 231, Gordon’s ex’r v. Baltimore. 6 Md. 76, Eischbach v. Pitts. 3 Met. 148, City of Louisville y. Bank of Kentucky. 6Mon. 643, Harris v. Wood. 15 Mass. 205. 3 Mass. 310. 11 Coke, 59-64. 6 Mass. 40. 14 Mass, 286. . ■ 1 Blackf. 39. 16 Johnson, 7. 5 Mass. 514. 20 Wend. 250. 31 Cal. 240. 26 Yermont, 482, Shaw v. Pickett. 20 Cal. 250, Perry v. Washburne. 11 Peters, 420, Charles River Bridge v. Warren Bridge. 10Bush, 723, Bowling Green & M. R. R. Co. v. Warren Co. Ct. 29 Cal. 88, Emery v. Bradford. 44 Cal. 366, Randolph v. Bayne. 33 Cal. 292, Guerin v. Reese. ■ 39 Cal. 112, Oakland v. Whipple. 15 Mo. 83, Ryan v. The County, &c. 36 Mo. 473, St. Louis v. Clem mens. 50 Mo. 528, Neenan v. Smith. 38 Mo. 128, Oarondelet, &c. v. Picot. 10 Mo. 559, Blair v. Perpet. Ins. Co. 21 Penn. 9, People v. Utica Ins. Co. 36 Mo. 367, McGrath v. Clemens. 53 Mo. 44, City v. Allen. 41 N. Y. 123, Litchfield v. Vernon. 13 La. Ann. 497, State, &c. v. The Southern steamship Co. 19 Wall. 107, Rees v. The City of Watertown. CITED Blackwell on Tax Title, 448, 449. Myers’s Sup. 4, 5, 6, Act of February 28, 1862. Lucas’s Digest, 33, Act of March 3, 1870. Lucas’s Digest, 58, Act of March 3, 1871. MS. opinion, 1872, Caldwell v. Robinson. MS. Opinion, 1874, Paducah v. Kohn. Note, January, 1868, American Law Review, 246. United States v. Washington Mills. Dillon’s Municipal Corporations, secs. 653, 655, 659. Act of March 3, 3 870, section 63, Lucas’s Digest. Kentucky Civil Code, section 93, title 5. MS. Opinion, 1875, Cracroft v. City of Louisville. Story’s Equity Jurisprudence, section 1217. Tiffany & Bullard on Trust, 84. ■ Cooley on Constitutional Limitations, 410. Constitution of Kentucky, secs. 1 and 2, art. 1. MS. opinion, 1875, Commonwealth, v. Jones. 2 Yerger, Tenn. 169, Mayor v. McKee. 4 Hill, 76, Sharp v. Spier. 1 Blackford, 337, 338, Doe v. Chunn. 1 Duv. 297, City of Louisville v. Commonwealth. 9 B. Mon. 338, Cheaney v. Hooser. 1 Bush, 261, L. & N. R. R. Co. v. Commonwealth. 2 Stan. R. St., sec. 2, art. 3, chap. 63. 1 Hal. (N. J.) 365, Bergen v. Clarkson. 1 Gill & J. (Md.) 502, Dugan v. Mayor. 6 Harris & J. 394, Mayor v. Howard. 3 Ohio, 63, Ohio v. Hibbard. 5 Gill. (Md.) 236-243. 5 Ohio, 22, Ohio v. Gazley. 14 111. 83, Ryan v. County. 6 Md. 75, 76, Eischbach v. Pitts. 9La. Ann. 562, New Orleans v. Graihle. 2 Nev. 61, Rhodes v. Farrell. ' 3 Met: (Ky.) 150, Louisville v. Bank. •4 Bush, 479, Railway v. City of Louisville. 3 Ohio, 63, Ohio v. Proudfit. 2 Duer, N. Y. 1, Mayor v. Colgate. 8 Cranch. 53, Alexandria v. Preston. 1 Humphrey, 369, Anderson v. Patton. 9 Hammond, 154, Wilkins v. Huse. 7 Wallace, 71-81, County of Lane v. Oregon. 3 Met. (Mass.) 520, Pearce v. Boston. 2 Dutch. N. J. 398, Camden v. Allen. 4 Bush, 438, Hunter v. Ketchum. 6 Bush, 538, McAfee v. Balden. 13 La. Ann. 497, State v. Steamship. 20 La. Ann. 139, Bond v. Hiestand. 15 111. 9, Dunlap v. Gallatin. 28 Miss. 75, Green v. Craft. 12 Cal. 270, Moore v. Patch. 20 Iowa, 453, Ham v. Miller. 23 Iowa, 413, Mclnery v. Reed. 25 Iowa, 170-74, Merriam v. Moody. 16 Cal. 344, People v. Seymour. 44 Mo. 437, et seq., Missouri, &e. v. Rice, &c. 10 Johnson, 404, Thompson v.-Gardner.' 23 Pick. 93, 94, In re Bank of Kilby. 42 Penn. S. R. 192, Duffy v. Philadelphia. 31 Gá. 715, D. Antegnac v. Augusta. 11 Allen (Mass.) 283, Oliver v. Colonial, &c. 46 Barb. (N. Y.) 325, Metcalfe v. Messenger.. 22 Pick. 176, Commonwealth v. Bank. 20 Cal. 348, Perry v. Washburn. 26 Vermont, 482. 6 Kansas, 525. 25 Iowa, 163, Merriam v. Moody. 34 111. 363. 5 Mich. 409, 39 Cal. 112, Oakland v. Whipple. 33 Cal. 292, Guerrin v. Reese. 41 N. Y. 123, Litchfield v. Vernon. 36 Mo. 467, St. Louis v. Clemons. 44 Mo. 136, St. Louis v. De None. 31 Cal. 240, Justice Sawyer’s Opinion, Taylor v. Palmer.
74 Ky. 539Bridgeford & Co. v. Beck & Co. (1875)
1. Sale op land not divisible, in which inpants and married women are interested, must be made in strict compliance -with the provisions of the General Statutes, or their title will not pass to the purchaser. 2. The General Statutes have changed the law in relation to the sale of real estate of married women owned jointly with others and not susceptible of division. 3. In proceedings for the sale of a married woman’s real estate the statute contemplates that she shall be a defendant thereto, and not a co-plaintiff with her husband. The purchaser properly refused to comply with the terms of the sale in this case because a married woman was made a plaintiff instead of a defendant.
74 Ky. 543Rudy v. Johnson (1875)
1. To ENTITLE AN OFFICER TO THE PROTECTION AFFORDED BY AN INDEMNIFYING bond he must comply strictly with the conditions of the statute, that he shall have taken and returned the bond, and that the surety therein was good when accepted; and these duties must have been performed in the order of time prescribed by the statute. (Green v. Hackley, 3 Met. 386.) 2. If the officer desires complete protection he should require the execution of the bond before making the levy. The seizure of the property is of itself a trespass, and the claimant may institute an action at once. A bond taken after suit is commenced will not operate to defeat so much of the action as seeks á recovery for the damages incident to the seizure and detention up to the date of the bond. 3. The bond ip not required to be returned to the office before the officer proceeds to sell. If it be returned with reasonable dispatch, he will not lose the protection it was intended to afford him, even though the claimant institutes his action before it is returned. What will amount to reasonable dispatch must depend upon the facts of the particular case; but a return on the day succeeding the sale ought to be regarded as legal diligence under any circumstances. 4. The officer may, if he sees proper, advertise a sale of the property and await the execution of the bond until the hour of sale has arrived, and if it be then executed he may proceed to sell, and return it to the proper office as soon thereafter as it can reasonably be returned, and may rely upon its execution and return as a bar to an action to recover the value of the property sold, and also as a bar to a recovery for damages for the seizure and detention of the property, unless the action was instituted before the bond was executed. 5. The moment an officer, acting under an execution, seizes the-property of one -not a defendant to the writ a cause of action arises against him, not only for the damages resulting from its seizure and detention, but for its value in case the claimant sees proper to treat the act of the officer as a conversion of the property seized, unless he has theretofore required and shall in due time return to the proper office a good bond of indemnity.
74 Ky. 550City of Henderson v. Sandefur & Co. (1875)
A CITY IS NOT BOUND TO KEEP ALL OP ITS STREETS IN GOOD REPAIR UNDER all CIRCUMSTANCES, but only such streets and parts of streets as are necessary for the convenience of the traveling public; and as streets are required for use, they must be placed in a reasonably safe condition. The city must be permitted to exercise its discretion as to whether the public interests require the improvement of the streets in the uninhabited or sparsely settled portions of it, and its decision is final. A city is not liable for injuries to horses and carriage resulting from a failure to improve a street which was not needed for the use or convenience of the public.
74 Ky. 556Kimbrough v. Lane (1875)
Case 52 — PETITION EQUITY APPEAL PROM BATH COMMON PLEAS COURT. CITED Chitty on Contracts, 515. 2 J. J. Mar. 415, Taylor v. Ashby. 1 Chitty’s Pleading, p. 54. 1 Parsons on Contracts, pp. 371-422. 1 Cowen, 249, Erwin v. Saunders. 7 Johnson, 36, Scouten v. Eislord. 8 Kansas, Craft' v. Bent, &e. 5 Yiner’s Abridgment, p. 408. 10 Bush, 234, Trustees of Ky. F. 0. School v. Fleming, ex’r, &c. 14 Johnson, 178, Shippey v. Henderson. CITED Chitty on Contracts, p. 692. Chitty on Contracts, pp. 47, 48. 3 Bibb, 500, Brown v. Langford. 6 Dana, 91, Donallen v. Lennox. 9 B. Mon. 90, Gardner v. Maxey. 8 B. Mon. 98, Swan, &c. v. Chandler, &c. 4 Dana, 385, Steele v. Curie. 2 Kent, p. 467. 5 Hill, 252, Steuben County Bank v. Matthewson. 1 Stark Rep. 467, Harding v. Cooper.
74 Ky. 565Colter v. McIntire (1875)
Liability, oe county judge eor taking insueeicient surety on 'a guardian’s bond.&emdash;The statute providing that the judge shall be liable for any damages sustained if he accepts such person or persons for surety as do not satisfy the court of their sufficiency means that the j udge while sitting as a court shall have personal knowledge that the surety offered by the guardian is sufficient, or, if he is not in possession of such knowledge, that he shall institute an inquiry on the subject.
74 Ky. 567Thompson v. Cundiff (1875)
Case 54 — PETITION EQUITY APPEAL EROM DAVIESS CIRCUIT COURT. CITED Revised Statutes, 2 Stanton, 246, 247, 274-8; 1 Ih. 246, 374-5. General Statutes of Missouri 1865, p. 464. Session Acts 1869-70, pp. 71, 72. Story on Conflict of Laws, secs. 516, 106, 592, 383. Auditor’s Rep. 1869, p. 148; 1870, p. 138; 1871, p. 134; 1873, p. 160. 1 Dana, 532, Doyle, &c. v. Sleeper, &e. 2 Bush, 421, Marshall v. Marshall. 3 Bush, 352, Duhme, &c. v: Young, &c. 8 Bush, 533, Stokes & Son, &c. v. Coffey, &c. 2 Duvall, 519, Alexander v. Smith. 1 Neb. 419, Bennett v. Hargus. 14 B. Mon. 208, Moore v. Moore. 15 B. Mon. 82, Robinson v. Huffman. 21 Mich. 390, Bay City, &c. v. Austin.
74 Ky. 575Nichols v. Commonwealth (1875)
Case 55 — INDICTMENT, MURDEIU APPEAL FROM BOYLE CIRCUIT COURT. CITED Criminal Code, secs. 189, 190. Constitution of Ky., Bill of Bights, sec. 12. . Civil Code, sec. 345. Wharton, sec. 932. 1 Starkie, part 3, sec. 15; lb., part 4, “Admissions.” 9 Bush, 676, Bush v. Groom. 7 Bush, 320, Blimm v. Commonwealth. 8 Bush, 463, Shannahan v. Commonwealth. 7 Bush, 679, Donellan v. Commonwealth. CITED Criminal Code, secs. 189, 190, 242, 243. 7 Bush, 320, Blimm v. Commonwealth. 2 Met. 2, Tyra v. Commonwealth. 2 Met. 30, Jane v. Commonwealth. 8 Bush, 464, Shannahan v. Commonwealth.
74 Ky. 587Ætna Insurance v. Johnson (1874)
Case 56 — PETITION OBDINABY APPEAL PROM SHELBY CIRCUIT COURT. CITED Queen’s Bench, Montreal, Grant v. TEtna Ins. Co. 7 Wis. 169, Washington Union Ins. Co. v. Wilson. 8 Robinson (La.) 442, Wightman v. Western M. & F. Ins. Co. 1 La. An. 216, Hoffman v. Western Empire Ins. Co. 1 Gray (Mass.) 529, Schmidt v. New York Union Mut. Ins. Co. 48 Penn. 367, Lycoming Ins. Co. v. Mitchell. 37 Penn. 205, Commonwealth Ins. Co. v. Sennett. CITED Angelí on Fire and Life Ins., p. 178. Starkie on Evidence, p. 451. 1 Bing. 339. 2 Greenleaf on Evidence, pp. 384, 385.
74 Ky. 595Franklin v. Becker (1874)
OASE 57-PETITION EQUITY- APPEAL PROM FLEMING CIRCUIT COURT. CITED Revised Statutes, chap. 24. 1 Stanton, 285. 1 Mar. 306, Bank of Kentucky v. Haggin. 8 B. Mon. 181, Gill, Simpson, &c. v. Fauntleroy’s heirs. 4 Met. 352, Phillips v. Clark. CITED Act of March 9, 1854. 1 Stanton, 285. Revised Statutes, chap. 24, sec. 22. 1 Met. 472. 5 J. J. M. 328 and 533, 1 Story’s Equity, secs. 96, 169, 177. 7 B. Mon. 162, Pearce’s heirs v. Patton. 5 J. J. M. 135, Tomlin v. McChord’s reps. 6 J. J. M. 533, Barnett v. Shackleford. 1 Pet. 328, Elliott v. Piersoll. 17 B. Mon. 542. 1 Story’s Bep. 487.
74 Ky. 597Bryan v. Memphis & Paducah Railroad (1874)
Carrier’s liability por preight to be transported over more THAN ONE LINE — THROUGH BILL OP LADING. Unless bound by special contract the carrier is required to transport or deliver the freight at the terminus of his line, or at the place where by the established usage- of the business in which he is engaged the delivery is to be made, to be transported on other lines or by a different carrier. But a railroad company may make a special contract to deliver goods - beyond its line, and become liable, as in this case, for the loss of goods on another line to which it delivered them to be transported to place of destination.
74 Ky. 601Commonwealth v. Morgan (1876)
Case 1 — INDICTMENT APPEAL PROM ANDERSON CIRCUIT COURT.
74 Ky. 603Commonwealth v. Hawkins (1876)
Case 2 — INDICTMENT APPEAL FROM BRECKINRIDGE CIRCUIT COURT. CITED General Statutes, chap. 29, art. 17, sec. 1.
74 Ky. 605Medlin v. Commonwealth (1876)
Case 3 — BAIL BONDS APPEAL EROM NICHOLAS CIRCUIT COURT. CITED 14 B. Mon. 291, Commonwealth v. Bronson. 1 Bush, 59, Commonwealth v. Branch. CITED Criminal Code, secs. 81, 96, 97. 1 Bush, 113, Kirby v. Commonwealth.
74 Ky. 607Commonwealth v. Douglas (1876)
CASB 4-BASTARDY APPEAL PROM NELSON CIRCUIT COURT. General Statutes, chap. 7, secs. 3, 5, 10, 11, 14, 15; chap. 21, secs. 15, 17. MS. Op., March 11, 1873, Commonwealth for White v. Sanders, &c. CITED CITED Civil Code, sec. 847. 4 Met. 67. 4 Met. 67. Myers’s Supp., Act of June 3, 1865, on Bastardy. General Statutes, pp. 161, 162, 163. MS. Op., March. 11, 1873, Commonwealth for White v. Sanders.
74 Ky. 610Harlow v. Commonwealth (1876)
1. The keeping of a bawdy-house being a public offense, every person wlio voluntarily aids in establishing and maintaining it is guilty of a misdemeanor. (Ross v. Commonwealth, 2 B. Mon. 417.) 2. Renting a house to be kept and used as a bawdy-house. — The indictment in this case against the landlord for renting a house to be kept and used as a bawdy-house is substantially set out in the opinion, and although defective in some respects, it stated facts constituting a public offense. 3. The failure in the indictment to state the location of the house which was rented to be kept, and used as a bawdy-house is not a fatal defect. uIf the indictment contains no statement of the place in which the offense was committed, it shall be considered as charged therein that it was committed in the local limits of the jurisdiction of the court in which the grand jury was impaneled. (Criminal Code, sec. 131.)
74 Ky. 613Rice v. Commonwealth (1876)
Appeals erom county court to Court oe Appeals not allowed. The law authorizing appeals in certain cases from the j udgment of a county court directly to the Court of Appeals was repealed by the adoption of the General Statute, sec. 2, art. 22, chap. 28, p. 311.
74 Ky. 614Mitchell v. Bond (1876)
Case 7 — COUNTY COURT ORDERS APPEAL FROM CARROLL CIRCUIT COURT. CITED General Statutes, chap. 94, art. 1, sec. 13, p. 762. Civil Code, sec. 364. 2 Met. 378, Tweedy v. Commonwealth. 17 B. Mon. 607, Freeman v. Branham, &c. 2 Met. 425, Vandever v. Griffith. 2 Met. 297, Allard v. Smith. 3 Met. 283, Bond v. Mullins. CITED General Statutes, chap. 94, sec, 2, p. 759. 7 Bush, 623, Helm, &c. y. Short, &e.
74 Ky. 617Holandsworth v. Commonwealth (1876)
Case 8 — BAIL BOND APPEAL PROM JESSAMINE CIRCUIT COURT. CITED Act of February 8, 1872, Sess. Acts 1871-72, vol. 1, p. 17. 3 Bush, 479, Covington v. Commonwealth. 2 Duvall, 411, Johnson v. Commonwealth. 2 Wils. 341, Collins v. Blanton. 5 Johns. 327. 1 Binn. 446, Bex v. Locksdales. 5 Bing. 666. 50 Maine, 518. 19 Barb. 538, People v. Schermerhorn. 13 Wal. 507, French v. Edwards. 19 N. H. 196. 4 Dali. 269. CITED 11 Bush, Bailey v. Commonwealth, 688.
74 Ky. 619Thomasson v. Risk (1876)
1. An award made under a parol submission- is enforceable under tbe General Statutes. At the common law any matter in controversy might be submitted by a parol agreement to arbitration, unless the arbitration attempted to divest the parties of some right or title to property that could only pass by a written agreement. This common-law rule has not been repealed by the Oivil Oode, or Revised Statutes, or General Statutes. 2. Arbitrators sit as a quasi court, etc. Arbitrators to whom a submission is made as provided in section 499 of the Oivil Oode, or in writing not noted or filed in court as provided in sections 3 and 4 of chapter 3 of the General Statutes, sit as a quasi court, may summon witnesses, compel their attendance, and punish for contempt by fine or imprisonment to the extent of justices of the peace, administer proper oaths to parties and witnesses, and preserve order, &c.
74 Ky. 622Brooks v. Collins (1876)
1. Who is a bona fide housekeeper with a family ? A debtor being a bona fide housekeeper occupying land as a homestead with his wife or.children, adults or infants, or with his brothers or sisters, parents, or grandparents, or grandchildren, or those dependent upon him, and whom, by reason of his relation to or connection with, he is under natural or legal obligations to maintain, must be regarded as a bona fide housekeeper with a family, and entitled to a homestead. 2. A WIDOW OCCUPYING A HOUSE AND LOT AS HER HOMESTEAD, with two adult children living with her, is held to be a bona fide housekeeper with a family, and her house and lot, worth less than one thousand dollars, not liable for her debts. 3. The owner conveyed a part of a lot occupied as a homestead to her children for a nominal consideration. Held, that the lot was not liable for her debts, and that she had a right to convey it to her children. 4. Part of the homestead was condemned by a railroad com- pany and damages assessed paid into court. Held, that the owner of the homestead was entitled to the damages, and that they could not be subjected to the payment of her debts by her creditors.
74 Ky. 628Bethuram v. Black (1876)
1. A JUSTICE HAS NO POWER TO ISSUE A WRIT OF HABEAS CORPUS when a circuit judge, chancery judge, police judge, or county judge is in the county. , A justice issued the writ in this case upon the application of the prisoner, in which he stated that the circuit judge was absent from the county, and that the county judge was so prejudiced against him that he refused to grant the writ and was incapacitated to act in the matter. Held, that the justice was not authorized to issue the writ, and that it was a nullity and might be wholly disregarded. 2. For refusing to obey the writ so wrongfully issued the prisoner sued the jailer and his sureties for the statutory penalty of one thousand dollars. On the facts appearing in the plaintiff’s petition and exhibits filed therewith, the circuit court properly sustained a demurrer to the petition and dismissed the action. 3. The justice had no authority, after the amount of the bail required of a prisoner had been fixed by the court that committed him, to revise the order or to reduce the amount of bail so fixed, and should have refused the writ. (7 Cush. 285; 3 Peters, 201.) 4. A person in prison is not entitled to a writ of habeas corpus as of course. It is a discretionary writ to be issued only upon probable .cause being shown, and if upon the face of a petition therefor it appears that there is no sufficient ground for the release of the prisoner the writ will be denied. (3 Black, 132; 2 Jon. 13; 7 Cush. 285; 7 Wheaton, 38; 1 Serg. & R. 353; 4 Am. Law Reg. 27; 3 Peters, 201.)
74 Ky. 633Gray v. Merrill (1876)
Case 12 — PETI.TION ORDINARY APPEAL PROM GREENUP CIRCUIT COURT. CITED 4 Met. 247, Havens v. Foudry. 2 B. Mon. 303, Kouns v. Bank of Kentucky. . 8 Bush, 132, Commonwealth v. Merrigan. CITED 1 Duvall, 290, Southern B’k Ky. v. White, &c.
74 Ky. 636Jones v. Jeffress (1876)
Case 13 — PETITION EQUITY APPEAL PROM CARTER CIRCUIT COURT. CITED Civil Code, sec. 474. General Statutes, chap. 70.
74 Ky. 639Bate v. Bate (1876)
Case 14 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. ' CITED Revised Statutes, chap. 37. Chitty on Contracts, pp. 61, 62, 49, 53. 2 McCord’s Ch. R. 102, McCord v. Blewitt. 2 Denio, 403, Stewart v. Trustees, &c. 3 Mar. 433, Outon v. Rodes. 7 J. J. Mar. 640, McGill v. Burnett. 6 Dana, 366, Wood v. McCann. 3 Bush, 652, Clark v. Constantine. 3 Zab. 353. 1 Met. 384, Cabell v. Cabell. 8 B. Mon. 284, Miller v. Porter. 13 Md. 90, Folck v. Smith. 15 Wis. 684, King v. Whiton. CITED Ohitty on Contracts, ed. 1851, pp. 29, 292, 54, 51. Perry on Trusts, 817. 2 Blackstone, 297. Call’s Rep. 87 (105). McCord’s Eq. R. 394. 2 Williams on Executors, 1275. 1 Johns. 37 and 534. 1 B. Mon. 179. 2 Mar. 339. 2 Mon. 151. 1 M. & B. Statutes, p. 668, act of 1797. 5 Dana, 43, Beeler v. Hill. 7 Dana, 17, Clay v. Hart. 5 Johns. Ch. 539, Mason v. Roosevelt. 9 Serg. & R. 209, 223. 4 Johns. 84. 8 Bush, 40, Booker v. Stevenson.
74 Ky. 646Johnson v. Jacob (1876)
Cases 15-20 — PETITION EQUITY APPEALS PROM LOUISVILLE CHANCERY COURT. CITED Fearne on Rem., chap. 1, sec. 2, s. p. 5. Gen. Stats., chap. 8, art. 5, sec. 6; chap. 63, art. 5, sec. 5. Perry on Trusts, sec. 544, pp. 484 and 486. 4 Bush, 110, Jacob v. Jacob. 8 Bush, 115, Feltman v. Butts. 2 Jarman on Wills, side p. 13. 6 Bush, 648, Brown v. Brown. 4 Kent, 233. -Salk. 229. 5 B. Mon. 427, Adair, &c. v. Smith. 1 Haywood N. C. 234, Glasgow v. Flowers. 2 Hare’s Eng. Oh. Rep. 144, Caldecott v. Brown. 3 Allen, 121, Russell v. Loring. 15 B. Mon. 29, Walters v. Crutcher. 18 B. Mon. 329, Williamson v. Williamson. 17 Beavan, 572, Horlock v. Smith. 12 Allen, 359, Atkins v. Albree. 99 Mass. 101, Minott v. Payne. 101 Mass. 571, Delana v. Williams. 102 Mass. 550, Leland v. Haydon. (Briefs not in record.) CITED 1 Roper on Legacies, p. 126, sec. 16. CITED Fearne’s Rem’s, 144, 155, 156, 157. 4 Bush, 110, Jacob v. Jacob. 1 Met. 676. 17 B. Mon. 379. 2 B. Mon. 116. Story’s Equity, sec. 145. 6 Bush, 651. Mitford’s Equity, 173, 174. 4 Kent’s Com. 203, 204. 2 Cruse’s Digest, 270. 15 B. Mon. 9. 8 Bush, 116. 29 Md. 456. 2 Blackstone, Chi tty’s, 169, n. 10. 14 B. Mon. 458. 1 Denio, 166. 18 B. Mon. 380. 41 N. Y. Rep. 74. CITED 4 Bush, 110, Jacob v. Jacob. 6 Bush, 648, Brown’s ex’rs v. Brown’s devisees. 3 Richardson, 543, Templeton v. Walker. 2 Jarman on Wills, p. 46. 1 Roper on Legacies, 92, 126, 128. 8 Met. (Mass.) 450, Doggett v. Clark. 9 Met. (Mass.) 148, Tillinghast v. Cook. 3 Pa. St. R. 304, Baskin’s appeal. 1 Leigh, 77, Crow v. Crow. 10 Rice’s S. C. Eq. R. 10, Campbell v. Wiggins. 31 Conn. 183, Bond’s appeal. 33 Conn. 222, Logan v. Acker. 17 Wendell, 119, Bool v. Mix. 11 Gill & F. 123, Alder v. Beall. 11 B. Mon. 32, Lachland v. Downing. 15 B. Mon. 2, Walters v. Crutcher. CITED 4 Bush, 110, Jacob v. Jacob. 4 Kent’s Com. pp. 204, 207. 2 B. Mon. 166, Thompson v. Thompson. 5 Mass. 527, Dingley v. Dingley. 1 Denio, 166, Heard v. Horton. 8 Bush, 116, Feltman v. Butts. 18 B. Mon. 370, Williamson v. Williamson, &c. 14 B. Mon. 465, Turman v. White’s heirs. 15 B. Mon. 10, Walters v. Crutcher. 12 B. Mon. 656, Moore v. Moore. CITED Freeman on Judgments, pp. 151, 513, sec 172. Civil Code, secs. 55, 91. 8 Iowa, 23, Ralston v. Lake. 9 Bush, 125, Thomas v. Mahone. 9 Dana, 395. 9 Bush, 468, Cov. & Lex. R. R. Co. v. Bowler’s heirs, &c. 3 B. Mon. 59. • 18 B. Mon. 558. 3 Met. 424. 42 Cal. 484. 1 Sch. & Lef. 407, Gifford v. Hart. 6 Sim. 643, Gaskell v. Gaskell. 8 Hamm. 498, Campbell v. Walston. 4 Bush, 110, Jacob v. Jacob. 3 Mar. 254, Porter’s heirs v. Robinson. 7 Coldwell (Tenn.) 284, Cowan v. Anderson. 3 McLean, 320, Nelson v. Moore. 19 Cal. 629. 1 Daniell’s Oh. Pr. 164. 31 Cal. 273, Joyce v. McAvoy. 13 Gratt. 152, Baylor’s lessee, v. Degamelle. 18 Gratt. 684, Faulkner v. Davis. 17 B. Mon. 380, Edwards v. Woolfolk.
74 Ky. 663Chanslor v. Chanslor's Trustees (1876)
1. A ward has NO lien, statutory or equitable, upon the estate of his guardian to secure an honest management of his property and an honest account thereof at the termination of the trust. 2. The statute malees the ward’s claim a preferred me against his guardian in winding up the estate of the guardian after his death. 3. But the ward’s claim is not a preferred debt in the lifetime of his guardian, against him, or against his 'estate, in the hands of a trustee, for the purpose of paying his debts. 4. A ward has the right to claim the profits realized by his guardian in any trade or business carried on with his money. 5. A ward has the right to claim, any specific article of property purchased with his money, although the guardian may have taken the title to himself.
74 Ky. 666Johnson v. Bradley (1876)
Case 22 — MOTION APPEAL FROM ROWAN CIRCUIT COURT. o IT E D 1 Littell, 197, Fergus v. Ball. 3 Met. 347, Terrill v. Cecil. CITED Civil Code, sec. 481. 3 Met. 4. 7 Bush, 476, Young, McDowell & Co. v. Bennett. 6 Bush, 328. ' 1 Sess. Acts 1869, p. 175. 14'B. Mon. 137, Wicldiffe v. Carroll. 18 B. Mon. 223. 1 Duvall, 93.
74 Ky. 669Hearn v. Lander (1876)
Case 23 — PETITION EQUITY APPEAL FROM FLEMING CIRCUIT COURT. CITED 11 Bush, 556, Kimbrough v. Lane, &c. MS. Opinion, Gillispie and wife v. Moon. Story on Bailment, chap. 5,‘sec. 302, p. 315. Ib. 333, Hamilton v. Wagner. Story on Bailment, chap. 5, sec. 297. Civil Code of Practice, sec. 120. 9 Da. 317, Norris v. Norris’s adm’r 1 Metcalf, 668, Brookover v. Hurst. 6 Da. 265, Harrison & Co. v. Campbell. 4 B. M. 430, -Bank of U. S. v. Huth. 1 Story’s Equity Jurisp., chap. 5, sec. 157. 2 Johnson’s Ch. Reps. 524, Lyman v. The United Ins. Co. 2 Bibb, 246, Garten and wife v. Chandler. 2 Kent’s Com., lecture 31, p. 237. 2 Marshall, 56, Flowers v. Sproule. 2 Kent’s Com., lecture 40, p. 577. 4 B. M. 482, Fetter & Co. v. Cirode. 4 J. J. M. 465, Miles & Co. v. Bacon. 6 B. M. 19, Copenheaver v. Huffaker & Co. 4 Little, 169, Bank of Kentucky v. Vance’s adm’r. 2 Duvall, 254, Julian v. Pilcher. 17 B. M. 285, Swigert v. Bank of Kentucky. CITED Civil Code, secs. 153, 154, 165. Civil Code, secs. 474, 120, 123. 2 Dana, 324, Violett v. Violett. 1 Met. 404, Short v. Tinsley. 1 Met. 668, Broolcover v. Hurst. 8 B. Mon. 441. 1 Met. 474. 4 Met. 108, Hanson v. Bowyer. 1 Met. 100, Moore v. Shepherd. 6 Bush, 81, Dugan v. Massy. 8 Bush, 888, Brewer & Orr v. Cosby. 12 B. Mon. 38, Ratcliff v. Trimble. 10 B. Mon. 186. 10 B. Mon. 385. 11 Bush, Smith v. The Belmont & Nelson. Iron Co.,
74 Ky. 677Hopkins v. Virgin (1876)
1. Infant may sue at any time after, the slanderous words were uttered until the expiration of one year after arriving 'at the age of twenty-one years. (Gen. Stat., chap. 71, art. 4, sec. 2.) An infant failing to sue within one year after the slanderous words were uttered is not obliged to wait and sue as an adult. 2. An infant female plaintiff having intermarried with an infant husband, the court properly entered him upon the record as a co-plaintiff, and allowed the action to proceed in the name of her next friend as the next friend of both. 3. Agreement by infant plaintiffs to dismiss the action can only he made available as a defense against them by being pleaded. Motion of defendant to dismiss the action based upon a paper purporting to be an agreement upon the part of-the infant plaintiffs to discontinue the same was properly overruled. Said paper, if it evidenced an enforceable agreement or contract, could only he made available as a defense by being pleaded. If it had been pleaded as a defense it might have been avoided by the infants. 4. Merely eiling the agreement to dismiss the action in the papers of the suit did not mate it a part of the record.
74 Ky. 679Commonwealth v. Jackson (1876)
Case 24 — INDICTMENT FOR BIGAMY APPEAL PROM LEWIS CIRCUIT COURT. CITED General Statutes, chap. 29, art. 4, sec. 10.' 1 Mar. 290, ICibby v. Ruclrer. 2 Greenleaf’s Ev. see. 49. 2 Fairf. 391, Harris’s case. 7 Greenleaf, Cayford’s ease. 2 Ya. Ca. 95. 4 McCord, 255, State v. Britton. 3 Richardson’s Rep. 434, State v. Hilton. 8 Serg. & R. 159, Forney v. Hallacher. 2 Scam. 231, Jackson v. The People. 16 Car. & Kir. 167, Rex v. Simmons. 19 Maine, 155, State v. Hodgkins. 11 Ga. 58, Cook v. State. 14 Ala. 546, Cameron v. State. 16 Ohio, 173, Wolverton v. State. CITED 3 Greenleaf on Ev., sec. 204. 4 Barrow, 2057. ■ ■ 3 Arch. Or. PL 476. 5 J. J. Mar. 491, Sneed v. Ewing and wife. 5 Mich. 409, People v. Lambert. 20 Ohio, Shaffer v. State.
74 Ky. 688Bailey v. Commonwealth (1876)
1. Words and phrases — Common-law rules op construction. Section 17, chapter 21, General Statutes, providing that “All words and phrases shall be construed and understood according to the common and approved usage of language,” &c., is only declaratory of -a part of the common law on the subject. There are other rules of construction of equal dignity and importance, which, although not incorporated in the statute, are as binding upon the courts as if embodied in it, among which are the following: “ Every statute ought to be expounded, not according to the letter, but according to the meaning.” “Every interpretation that leads to an absurdity ought to be rejected.” “A law ought to be interpreted in such manner as that it may have effect and not be found vain and illusive.” 2. “Immediate danger.” — These words-in sec. 5, art. 29, chap. 29, General Statutes, providing that carrying concealed deadly weapons shall be lawful “when the person has reasonable grounds to believe his person or the person of some of his family, or his property, is in immediate danger from violence or crime,” if construed as provided in sec. 17, chap. 21, General Statutes, would lead to "absurd consequences; and the statute would be a delusion and ¿ trap for the unwary. The court presumes that the word “ immediate ” was inadvertently used, or that it was used in some other than its ordinary sense, rather than that’it was intended to delude, &c. 3. When carrying concealed deadly weapons is lawpul. “When a person has reasonable grounds to believe that his person, or the person'of some member of his family, will be in immediate danger of violence or crime at the hands of another whenever that person is present, then he may lawfully cany concealed arms whenever and wherever he has reasonable ground to apprehend that he will encounter such person and be exposed to the apprehended danger.”
74 Ky. 693Williams v. Gordon (1876)
Case 28 — PETITION ORDINARY APPEAL FROM NICHOLAS CIRCUIT COURT. CITED Starkie on Slander, 360, 361. Townshend on Slander and Libel, p. 135, secs. 44 to 48. Civil Code, secs. 144, 115, 118, 161, 65, 173. Revised Statutes, chap. 28, art. 8, sec. 2. General Statutes, chap. 71, art. 4, sec. 1. 1 Greenleaf on Evidence, p. 40, sec. 34. 2 Greenleaf on Evidence, pp. 330, 418, 419. 2 Bouvier’s Institutes, p. 514, art. 5. 1 Duvall, 59, Gregory v. McFarland. 4Met. 149, Steadman v. Guthrie, &c. 4 Met. 284, Skillman, &c. v. Muir’s adm’r. 1 Chitty on PL, p. 389.- 2 Chitty on PL, pp. 621, 622. 1 B. Mon. 168, Hart v. Reed. 5 Bush, 435, Butts v. Turner. 1 Wendell, 93, Tobias v. Harland. 2 Starkie on Evidence, p.- 362. 3 B. &. C. 190. 4 Met. 132, Taylor v. Moran. 19 N. Y. 176, Hunt v. Bennett. 10 Bush, 447, Harper v. Harper. CITED Civil Code, sec. 123. 2.Greenleaf on Ev. p. 330. 7 Bush, 459, Vinsen v. Lockard, &c. 8 Bush, 557, McNamara v. Shannon. 1 Chitty’s PL, p. 389. 2 Chitty’s PL, pp. 621, 622. 1 Hilliard on Torts, pp. 243, 332, secs. 165, 166. 1 B. Mon. 170, Hart v. Reed. 1 Saunders’s Rep. 242, note 2. 2 Starkie on Evidence, p. 630, note i. 6Gratt. 534, Moseby v. Moss. 4 Met. 127, Taylor v. Moran. 6 Bush, 600, Horton v. Banner. 7 Bush, 685, Downing v. Bacon.
74 Ky. 697Wade v. First National Bank (1876)
1. Errors in mandates issued by the clerk of the Court of Appeals may be corrected §n motion at the same or during the next term of the court. Wherever the record as it stood at the time the decision was rendered, when considered in connection with the opinion then delivered, shows that the clerk has made a mistake in entering the mandate, the Court of Appeals has power during the succeeding term to correct the error. 2. The appellee is not entitled to damages against the appellant when the judgment of the.lower court is affirmed on the original and reversed on the cross-appeal of the appellee. •In these cases the Court of Appeals affirmed the judgments appealed from by the appellant, and reversed them on the cross-appeals of the appellee, and the clerk of the court entered the mandates so as to award damages in favor of tire appellee against the appellant in each case. Held that— The legal effect of the affirmance on the original appeals, there being reversals on the cross-appeals, was not to leave the judgments unreversed, but to decide that there was no error to the prejudice of the appellant, and that he was not entitled to a reversal. It is therefore ordered that so much of the mandates in these causes as awards damages to the appellee be set aside, and that this order be certified to the circuit court.