75 Ky.

Volume 75 — Kentucky Reports

121 opinions

75 Ky. 1Luby v. Commonwealth (1876)
Case 1 — INDICTMENT FOE MURDER APPEAL FROM FAYETTE CIRCUIT COURT. CITED On Verbal Instructions. Criminal Code, section 226. 3 Bush, 532, Coppage v. Commonwealth. On Dying Declarations: 2 Bennett & Heard’s Criminal Cases, 599. 7 Carr & Payne’s Eng. Com. Law, 187, 409, 566. On Defense of House: 2 Bishop’s Crim. Law, 4th ed., sec. 653. 2 Wharton, 7th ed., sec. 1024. On Right of Pursuit: Wharton’s Crim. Law, 7th ed., sec. 1019. 1 East’s P. C. 271, 272. 2 Duvall, 330, Phillips v. Commonwealth. 2 Starkie on Ev., side-page 523. 7 Bush, 126, Carico v. Commonwealth. 8 Bush, 481, Bohannon v. Commonwealth. 6 Bush, 320, Young v. Commonwealth, 11 Bush, 344, Holloway v. Commonwealth. On Right of Judgment: 14 B. Mon. 494, Rapp v. Commonwealth. 18 B. Mon. 49, Meredith v. Commonwealth. CITED Wharton’s Amer. Crim. Law, sec. 675. 1 Greenleaf on Ev., sec. 156. 6 Bush, 268, St. Louis Mut. Life Ins. Co. v. Graves. 8 Bush, 147, Sherley v. Billings. 9 Kan. 257, State v. Medlicott. 2 Duvall, 328, Philips v. Commonwealth. 1 Bishop, sec. 850. 6 Bush, 312, Young v. Commonwealth. 8 Bush, 481, Bohannon v. Commonwealth. 1 East’s P. C. 271. 10 Bush, 576, Bradshaw v. Commonwealth. 51 Mo. 160, State v. MeCannon. 45 Vt. 308, State v. Patterson. 30 Wis. 216, State v. Martin. 11 Bush, 344, Holloway v. Commonwealth.
75 Ky. 8Kentucky River Navigation Co. v. Commonwealth (1876)
Case 2 — PETITION EQUITY APPEAL FROM FRANKLIN CIRCUIT COURT. ' CITED Act of Feb. 24, 1869, authorizing the lease of Ky. River, etc. Act of 1865, Session Acts, vol. 2, page 96.
75 Ky. 13Clark v. Rodes (1876)
1. A JUDGMENT ON A NOTE IS HELD TO BE EQUIVALENT to the execution of a new note. As between the maker and the payee of a note a judgment thereon in favor of an assignee against the mater, which releases the assignor from liability on his assignment, is equivalent to the execution of a new note by the mater to the assignee. 2. A judgment is a final and conclusive determination of the rights of the parties to the litigation until reversed, vacated, or modified. 3. The right of the maker to sue and recover usury, contained in such note, accrued at the time such judgment was rendered against him. The right to recover usury was barred in this case. 4. No PART OE TEN PER CENT INTEREST PAID ON A JUDGMENT CAN BE recovered back when paid on judgments rendered since September 1, 1871. In a suit on a note bearing six per cent interest, by consent of the parties a judgment was rendered for the amount of the note, with ten per cent interest. After satisfying the judgment the defendant brought this suit to recover, as usurious, the amount of interest paid on the judgment in excess of six per cent per annum. The judgment of the circuit court dismissing his petition is affirmed. The judgment of the circuit court for the ten per cent interest, being for an amount of interest for which a judgment might have been legally rendered, is binding on the parties to it until reversed. It was wholly immaterial whether the judgment was rendered by agreement of the parties or not. The defendant in the judgment could not by a subsequent litigation indemnify himself against the legal consequences of the judgment against him.
75 Ky. 18Kessler v. Commonwealth (1876)
Case 4 — INDICTMENT FOR RAPE APPEAL FROM CAMPBELL CRIMINAL COURT.
75 Ky. 21Robinson v. Swope (1876)
Case 5 — APPLICATION FOE PASSWAY APPEAL FROM LINCOLN CIRCUIT COURT. CITED General Statutes, art. 2, chap. 94. General Statutes, sec. 3, art. 1, chap. 63. 5th, 10th, and 14th Amendments to U. S. Constitution. Session Acts 1820, p. 114. Session Acts 1833, p. 195. Washburn on E. and S., pp. 3, 420. Constitution of Kentucky, art. 18, secs. 2, 3, 14. 4 Hill, 140, Dissenting opinion of Judge Nelson in case of Taylor v. Porter. CITED General Statutes, chap. 94, art. 2, p. 770. Constitution of Kentucky, art. 13, sec. 14. Session Acts 1820, p. 114. Dwarris (Potter’s), pp. 383, 386. Sedgwick on Construction of Statutory Law, pp. 443,448. Cooley’s Con. Lim., p. 531. 2 Kent’s Com. 340. 1 American Reports, 161. 4 Hill, 140, Taylor v. Porter. 6 Hill, 47, Baker v. Braman. 3 N. Y. 511, Embury v. Conner. 6 N. Y. 368, Powers v. Bergen. 2 Swan, 230, White v. Clark. 2 Met. 98, Hall v. McLeod. 13 American Reports, 403. 25 Iowa, 540, Bankhead v. Brown. 43 Indiana, 455. 34 Ala. 311, Sadler v. Langham. 39 111. 110, Nesbitt v. Trumbo. 24 Wis. 89, Osborn v. Hart. 27 Mo. 373, Dickey v. Tennison. 40 111. 175, Crear v. Crossly. 40 111. 185, Winkler v. Winkler.
75 Ky. 29Galbraith's adm'r v. Arlington Mutual Life Ins. (1876)
Case 6 — PETITION ORDINARY APPEAL FROM HICKMAN CIRCUIT COURT. CITED 7 American Reports, Miller v. The Mu. Ben. Life Ins. Co. Bigelow on Estoppel, 229. 98 Mass. 381, Campbell v. New England Mu. Life Ins. Co. CITED '■ Civil Code, section 161. 1 Phillips on Insurance, pp. 278, 281, 282, 350, 351, 352, 355. 9 B. Mon. 449, Vaughn v. Bell. 2 Parsons on Contracts, ,p. 777. 15 B. Mon. 430, Protection Ins. Co. v. Hall & Gideon.
75 Ky. 41Paducah & Memphis R. R. v. Hoehl (1876)
1. Action against railroad company por injuries sustained by tbe plaintiff, a girl twelve years of age, at q crossing in a town, by being run over by a passing train. The judgment of the lower court, for $11,000 damages, is4 reversed, for errors of the court in instructing the jury in effect that it was the duty of the hands on the train to ring its bell or blow its whistle continuously until it passed the crossing. 2. What kind op signals must be given at public crossings. There is no statute in this state designating the character of signal necessary to be given, and therefore the company must give such signals as are usual and customary. It was immaterial whether the crossing was on the land of the company or not. 3. Greater caution must he used in running a train through a town or to'a crossing within the town than would be required to be exercised in approaching an ordinary crossing in the country. 4. The failure to give such a signal as will he sufficient to apprise those who are at or near a railroad crossing of the approach of the train must he regarded as negligence. • 5. Question of fact for the jury.— Whether the proper signals were given or the necessary precautions were used by the company at the time the accident occurred to prevent injury is a question of fact to be determined by the jury. 6. Not required to ring hell or blow whistle continuously. It was error on the part of the court below to authorize a finding because the company failed to ring its bell or blow its whistle continuously until the train passed the crossing at which the plaintiff was injured by a passing train. 7. Contributory negligence upon the part op the plaintipp. If the evidence establishes negligence upon the part of the company, and it further appears that there was negligence upon the part of the plaintiff contributing to the injury, and but for which the accident could not have happened, the plaintiff was not entitled to recover. 8.A girl twelve years OF age must exercise what is to he regarded as a reasonable precaution for one of her years for her own safety. It was her duty to take notice of the usual and customary signals given by trains on their approach. If such signals were given by the train inflicting the injury, and sufficient to warn one of ordinary diligence and care of its approach and the danger of crossing the track at the time, the injury was the result of her own negligence, and she is without remedy, unless the jury should believe that those managing the train were aware of her negligence, and after discovering her upon the track could, by the exercise of proper care and diligence, have avoided the injury. 9.The burden of proof is on the plaintiff to make out his case. The onus is on the company to show that the plaintiff’s own negligence contributed to the injury complained, of. When the plaintiff has shown the negligence of the company, and the injury caused by it, the cause of action is made out, and unless his own proof shows contributory negligence on his part he is entitled to recover. 10. It is not necessary for the plaintiff to allege or prove affirmatively that < he was not guilty of negligence. 11. Instructions as to contributory negligence which ought to have been given by the court below are copied in the opinion.
75 Ky. 51Sloan v. Gilbert (1876)
Case 8 — PETITION ORDINARY APPEAL FROM CARTER CIRCUIT COURT.
75 Ky. 57Newell v. National Bank (1876)
1. The deduction op legal interest in advance from the face of notes or bills discounted by banks is not usurious. (3 Parsons on Contracts, pp. 131, 132; 8 Wheaton, 354; 3 Peters, 40; 2 Cowan, 703.) 2. Ten per centum per annum in advance taken, deducted, or retained by a bank by way of discount since the passage of the act of March 14, 1871, or since the adoption of the General Statutes, is not usurious. It is not necessary under said statutes that there should be any contract in writing, other than the note or bill itself, to authorize the taking of the ten per cent in advance. 3. Penalties arising under the laws of the United States are not enforced, by the courts of this state. Note by Reporter. — By an act to amend chapter 60 of the General Statutes, title “Interest and Usury,” approved March 14,1876, the General Statutes are so amended as to change the rate of conventional interest from not exceeding ten to not exceeding eight per centum per annum. (Session Acts, 1876, page 68.)
75 Ky. 62Stockholders of Shelby Railroad v. Louisville (1876)
1. The sale of the Shelby Railroad by tbe trustees of tbe company to the Louisville, Cincinnati & Lexington Railroad Company, made upon the condition that it was not to be effectual until ratified by the stockholders of both companies, is declared a nullity and set aside on equitable principles, because no notice was given, as required by the charter, of the meeting of the Shelby Railroad Company at which the sale was ratified. 2. Notice of the time and place of holding meetings of the stockholders of a railroad company for the transaction of business to be effectual must be given in the mode prescribed by the charter.
75 Ky. 71Eckler v. Galbraith (1876)
1. “When able.” — A promise by a bankrupt to pay “when able” a judgment against him from which he had been discharged is founded upon a moral obligation, and is enforceable by-suit against him when he is able to pay it. In a suit on stick a promise proof of the promise and that the defendant owned property subject to the payment of his debts suffi- ■ cient to satisfy the plaintiff’s claim made out his right prima fade to a recovery. But the defendant could defeat this apparent right by proving that the payment of debts contracted honestly and in the ordinary course of his business, subsequent to his discharge in bankruptcy, would exhaust his estate, and leave nothing to be applied to the satisfaction of plaintiff’s demand. 2. Excess of advancements received by one does not constitute a debt from him to his co-heirs. After the heirs became bound by a judgment dividing land among them it was discovered in another suit that one of them had received advancements in excess of what was received by the others. The excess of advancements so received did not constitute a debt from him to his co-heirs or co-distributees.
75 Ky. 75Foushee v. Grigsby (1876)
Case 14 — PETITION EQUITY APPEAL FROM FAYETTE CIRCUIT COURT. cited Mechanics’ Lien Law, Myers’s Supp., p. 302. Houck on Liens, section 75. Perry on Trusts, section 219. Story on Prom. Notes, section 197. 2 Duv. 586, Trustees Caldwell Ins. v. Young, &c. 1 B. Mon. 257, Nazareth, &c. v. Lowe and wife. 5 Bush, 304, Gere and wife v. Cushing. 4 Met. 317, Brown v. Story’s adm’r. 3 Minn. 93, Farmers’ Bank v. Winslow. 4 Minn. 20, Knox v. Starks. 5 Littell, 62, Hunter v. Simrall. 1 Mon. 237, Hackwith v. Damron. 3 Mon. 312, Cotton v. Ward. 4 Mon. 196, Barbour v. Whitlock. 3 How. (Miss.), 881. 2 Swan R. 315. 7 Cal. 358. 22 Mo. 147. 6 Ind. 235. CITED 5 Bush, 304, Gere and wife v. Cushing. 2 Duvall, 582, Caldwell Ins. v. Young, &c. Act of 1839, Session Acts, page 93.
75 Ky. 84Morgan v. Commonwealth (1876)
1. It is indispensable to the validity of a bail bond, taken by or in pursuance of the decision of an examining court, that some judgment should be entered, or memorandum made in writing signed by the magistrate or justices, showing that an examining court was held, and that the accused was admitted to bail. 2. Mere irregularities in the proceedings, or in taking the bond, or in failing to deliver the warrant, minutes, and bail bond, if any, to the clerk of the trial court within ten days after the examining court was held, are cured by sec.tion 80 of the Criminal Code. It is indispensable that the decision of the examining court, requiring the accused to give bail, shall be filed in the trial court at least before there 'is a forfeiture of the bail bond. But the decision of the examining court ought not to be permitted to be filed in the circuit or trial court after a forfeiture of the bond, in the absence of proof showing the loss or destruction of the record or its fraudulent alteration. 3. Judgment of the circuit court against the sureties in the bail bond is reversed in this case, because the decision of the examining court, requiring the accused to give bail, was not delivered to the clerk of the circuit court.
75 Ky. 89Morris v. Shannon (1876)
1. Defeasible fees become absolute in this case. A. conveyed land to his son John “ duripg his life, and at his death” to M., a son, and S., a daughter of said John; “but if said children should not live till the death of said John nor leave lawful heirs, in that event, at the death of said John, the land was to go to the children of E.” John survived his daughter S., who died without issue, and M. survived his father. Upon the death of his daughter S. without issue John succeeded as heir to her interest in the land, subject to be defeated by the death of his son M., without issue, during his life. But John having died, leaving his son M. surviving him, the estate he took in the land as heir to his daughter became absolute, or an indefeasible fee; and by his death the estate of M. in the land became also absolute and indefeasible. 2. A bond for A good and sufficient title is understood to be an undertaking to convey with a covenant of general warranty. 3. A VENDOR AND HIS PRIVIES ARE ESTOPPED IN EQUITY from setting up any claim prejudicial to those holding under his vendee. A party and Ms privies are estopped from asserting claim to land by his participating in a sale of the land, and encouraging the purchaser to buy for an adequate price under the belief that the title he was getting was good, and by failing to disclose his claim to such purchaser. (Story’s Equity, section 385.) A party and Ms primes are estopped from asserting claim to land by Ms being a party to a suit in which the land was subjected and sold, as the property of others, and by failing to assert or set up his claim therein, and by standing by and seeing it sold to a purchaser who had a right to believe he was getting a clear title to the land.
75 Ky. 97Parrish v. Vaughan (1876)
Case 17 — PETITION EQUITY APPEAL FROM CUMBERLAND CIRCUIT COURT. CITED Jarman on Wills, pp. 441-443. 6 Sim. 467, Mytton v. Boodle. 1 Met. 277, Allen and wife v. Vanmeter’s devisees. 2 Met. 333, Johnson v Johnson. 2 Duvall, 547, True v. Nichols. 4Kent. 302-306, 641. 5 Dana, 424. 4 J. J. Mar. 600. 1 Bush, 282. 14 B. Mon. 114, Brown v. Alden. 10 B. Mon. 58, Prescott v. Prescott’s heirs. CITED 2 Parsons on Contracts, p. 497. 7 Bush, 114, Harris, &c. v. Berry. 4 Mon. 199, Moore’s trustees v. Howe’s heirs. 3 Mar. 289, Corbin’s adm’r v. Mosby. 3 J. J. Mar. 89, Brashear’s heirs v. Macey. 1 Dana, 39, Brown’s heirs v. Brown’s adm’r. 5 Dana, 428, Richardson v. Birney. 3 B. Mon. 486, Hart v. Thompson’s heirs. 7 B. Mon. 611, Attorney General v. Wallace’s heirs. 1 Redfield on Wills, pp. 471, 472, 482. 6 House of Lord Ca., Grey v. Pearson. 9 Bush, 582, Duncan v. Martin, &c. 2 Met. 130. 3 Mon. 279. 4 Mon. 202. 14 B. Mon. 260, McKay v. Merrifield. 12 B. Mon. 643, Robb v. Belt & Milan. 12 B. Mon. 115, Hughes v. Hughes. .
75 Ky. 101Calvin v. Duncan (1876)
Case 18 — PETITION EQUITY APPEAL PROM PAYETTE CIRCUIT COURT. CITED Ready v. Smith, MS. Opinion, 1856. Steers v. Mason, MS. Opinion, 1856. CITED 1 Met. 193, Comm’rs of Sinking Fund v. Northern Bank of Ky. 4 J. J. Mar. 476, Bodley v. McChord. 4 J. J. Mar. 495, Wilson y. Jeffries. Civil Code, sections 126, 128.
75 Ky. 105Miles v. Hall (1876)
THE HOMESTEAD RIGHT OP A WIDOW WHOSE HUSBAND DIED WHILE THE HOMESTEAD ACT OP EEB. 10, 1866, WAS IN PORCE continues, like dower, during her life. But the General Statutes, repealing the act of Feb. 10, 1866, provides that “ the homestead shall be for the use of the widow so long as she occupies the same,” etc. (General Statutes, see. 14, art. 13, chap. 38.) Where the widow owned in her own right one fourth of the tract of land, including the dwelling-house and appurtenances, occupied by her husband as a homestead at his death, she is entitled to land, including the dwelling-house and appurtenances, worth $1,000, as a homestead; but her own interest in the land allotted to her must be estimated as part of the exemption.
75 Ky. 110Gordon v. Winchester Building & Accumulating Fund Ass'n (1876)
Case 20 — PETITION ORDINARY APPEAL FROM CLARK COMMON PLEAS COURT. CITED Act of Feb. 17, 1873, incorporating appellee. Civil Code, sec. 161. General Statutes, chap. 60, art. 2, sec. 4. Cooley on Constitutional Lim., pp. 391, 392. 1 Dana, 401, Todd, &c. v. Wheeler, &c. 3 Dana, 536, Broaddus v. Broaddus. 2 Bibb, 69, Moore, &c. v. Lockett. 3 Greenleaf, 326, Lewis v. Webb. 2 Yerg. 554, Walley’s heirs v. Kennedy. CITED General Statutes, chap. 60, p. 562.
75 Ky. 116Bunnell v. Thompson (1876)
In a motion by the purchaser op land sold under execution for a writ of possession, as provided in section 9, article 12, chapter 38, General Statutes, the notice takes the place of the petition; and to be sufficient it must set out a state of facts entitling the plaintiff, to the relief demanded. The notice in this case was insufficient in not showing that the land had been conveyed to the purchaser, etc. The defects in the notice were not and could not be cured by the proof.
75 Ky. 119Nolan v. Feltman (1876)
1. Rejected pleadings must be identipied as part op the record. Papers purporting to be amended pleadings, copied in the record and not identified therein in some way as the same that were rejected by the lower court, will not be considered as constituting any part of the record by the Court of Appeals. 2. When judgment op eviction has been rendered against the vendee, if he, without aid derived from his vendor, buys in the paramount title, he may recover as upon a breach of the covenant of warranty the whole purchase-money and interest. 3. But if, through equities derived from his vendor, the vendee subjects the property to sale, and then becomes the purchaser, he will be treated as purchasing for his vendor’s benefit, and will only be entitled to recover what it cost him to perfect his title. 4. Judgment was rendered against the vendee for the property, but he was adjudged entitled to be paid for improvements put upon it by his vendor. It was sold to pay for the improvements, and purchased by the vendee. The vendee is entitled to recover of his vendor the amount paid at the last sale in excess of the amount adjudged to Mm for the improvements.
75 Ky. 125Westerfield v. Wilson (1876)
A poor infant and her insolvent next friend are permitted to prosecute an action as a poor person, as provided in section 1, chapter 26, General Statutes, without his giving security for costs, as required by section 687, Civil Code. The judgment of the court below dismissing the action because the insolvent next friend did not give security for costs, is reversed.
75 Ky. 127Jones v. Green (1876)
Case 25 — PETITION ORDINARY APPEAL PROM BATH CIRCUIT COURT. CITED Civil Code, sections 125, 886, 887, 888, 892. 5 Bush, 599, Reed v. Lander. 10 Bush, 238, Trustees F. O. Asylum v. Fleming’s ex’rs. CITED Civil Code, section 892. 5 J. J. Mar. 434, Scott v. Marshall.
75 Ky. 131L. & N. R. R. v. Hall (1876)
Case 26 — PETITION EQUITY APPEAL EEOM NELSON CIRCUIT COURT. CITED Civil Code, section 474. ■ Angelí & Ames on Corporations, 9th ed., sec. 643, n. 4. 1 Mon. 171, Pendleton, &e. v. Bank of Kentucky. 2 Kent, side page 291, note 1. CITED Civil Code, section 474. Acts 1867-68, volume 2, page 198. Angelí & Ames on Corporations, 313. 3Metcalfe, 173. 7 Ohio, 327. 2 Metcalfe, 286. 2 Kent, 292. 2 Duvall, 106. 21 Howard, 539. 16 B. Mon. 186. 27 Penn. 339. 23 Howard, 381. 10 Cush. 252.
75 Ky. 134Miles v. Miller (1876)
Case 27 — PETITION ORDINARY APPEAL PROM NELSON CIRCUIT COURT. CITED Littell’s Sel. Ca. 414, Trigg v. Northcutt. , Comyn’s Digest, “Damages,” D. Sedgwick on Damages, pp. 29, 35, 58, 65, 93, 94, 102, 105, 202, 226, 590. 2 Bibb, 216, Langford v. Owsley. 3 Jones (N. O.), 300, Shaw v. Jones. 2 Parsons on Contracts, 463. 3 Bush, 587, Parker v. Jenkins. 9 Bush, 283, Keith’s ex’r v. Hinkston. 9 Bush, 737, L., C. & L. R. R. Co. v. Case’s adm’r. 6 Dana, 357, Chamberlin v. McCalister. 1 Smith’s Leading Cases, p. 342. 5 American Law Reg., p. 748. 2 Wm. Blackstone, 1078, Flureau v. Thornhill. 5 Wend. 535, Armstrong v. Percy. 2 Starkie on Ev. 741. 2 Kent’s Com. 469. 24 111. 480. 2 Dev. 157, Smith v. Gorin. 66 Penn. Stat. 321, Gilmore v. Hunt. 28 N. Y. 72, Hamilton v. McPherson. 16 Ohio St. 573, Rhodes v. Beard. 25 111. 86, Omstead v. Burke. 24 Ind. 103, Cin. & Chicago Air Line v. Rogers. CITED Sedgwick on Damages, pp. 30, 65, 66, 77, 78, 338. 3 Dana, 43, Rucker v. Hamilton. 9 Dana, 195, Clarke v. Fox.
75 Ky. 139Weinstock v. Bellwood (1876)
Case 28 — PETITION ORDINARY APPEAL PROM SHELBY CIRCUIT COURT. CITED Jacobs’s Law Dictionary, “ Courts.” Chitty on Bills, page 1, note 2. 1 Salkeld, 658. 8 Bush, 358, Lester & Co. v. Given, Jones & Co. 18 B. Mon. 745, Buckner, &c. v. Sayre. CITED 8 Bush, 361, Lester & Co. v. Given, Jones & Co. 5 Wheaton, 285, Mandeville v. Welch. 18 B. Mon. 756.
75 Ky. 141Pace v. Welmending, Hoguet & Co. (1876)
Case 29 — PETITION ORDINARY APPEAL PROM JEFFERSON COMMON PLEAS COURT. CITED Gow on Partnership, 49, 61, 191, 231. Parsons on Partnership, 428, 439. General Statutes, sec. 13, chap. 22. 1 Met. 430, Dodd v. King. 16 B. Mon. 355.
75 Ky. 144Conner's adm'x v. Paul (1876)
1. When a foreign administrator can not sue in this state. A foreign administrator of a person domiciled in this state at his death has no power to bring or maintain an action in this state. > A foreign administrator of a non-resident decedent has no power to sue in this state “ if there be an executor or administrator of such decedent qualified by a court of this commonwealth.” (General Statutes, chap. 39, art. 2, sec. 45.) 2. Survivor of actions for suffering and loss of life caused by the wrongful act or negligence of the defendant. Two causes of action do not survive, one for mental and bodily suffering before death, the other for the loss of the life, the suffering and death being caused by the same wrongful act or negligence. The party entitled to site must elect whether he will bring the one or the other action. One action is abated in this case because of the pendency of the other. 3. The common-law action for the mental and bodily suffering of the deceased caused by the same acts or negligence which caused his death — his death not being immediate — will bar an action under the statute by the widow, or heir, or personal representative of the deceased, to recover for the loss of his life. 4. The statutory action by the widow, heir, or personal representative of the deceased for the loss of his life will bar an action by his personal representative for the mental and bodily suffering of the deceased before his death caused by the same acts or negligence which caused his death.
75 Ky. 148Remington v. Harrison County Court (1876)
Case 31 — PETITION ORBINARY APPEAL PROM HARRISON CIRCUIT COURT. CITED General Statutes, chapter 3, section 1. General Statutes, chap. 28, art. 16, sec. 1; art. 17, sec. 1. General Statutes, chap. 94, art. 1, sees. 35, 36. Caldwell on Arbitration, page 7. 1 Barb. 589, Brady v. Mayor of Brooklyn. 5 Howard, The Alexander Canal Co. v. Swan. 3 Met. 494. 16 Mass. 396. 15 B. Mon. 166, Harrison County Court v. Smith’s adm’r. 18-B. Mon. 852, Anderson County Court v. Stone. CITED General Statutes^ section 11, page 275. General Statutes, chap. 27, art. 2, sec. 2, p. 270. 9 Bush, 53, Gilbert v. Bartlett. 8 Bush, 300, Mercer Co. Court v. Kentucky River Nav. Co. 4 Bush, 464, Hydes & Goose v. Joyes.
75 Ky. 153Bracy v. Bracy's adm'r (1876)
1. Pleadings in the quarterly court must be in writing when the amount in controversy exceeds $50. (Civil Code, sec. 827.) 2. The amount in controversy embraces both principal and interest when the plaintiff sues for an aggregate amount made up of principal and interest, and demands a judgment for the whole sum as constituting the demand sued for. The sum so claimed fixes the amount in controversy. (18 B. Mon. 225.) 3. “No appeal shall he tahen to the Court of Appeals from a judgment for the recovery of money or personal property, if the value in controversy be less than fifty dollars, exclusive of cost.”
75 Ky. 155Hurst v. Chambers (1876)
1. The assignor oe a note eor value impliedly warrants that it is a valid instrument, and undertakes that it can be enforced against the parties whose names are signed to it. 2. The measure of recovery against the assignor, on his implied warranty and undertaking, is the damage the assignee may sustain by reason of the breach thereof, unless by his own act or laches the assignee has lost this right. 3. Upon the failure of the assignee to mahe the money out of the obligors in the note, by reason of some legal defense existing at the time of the assignment, the assignee is entitled to recover of the assignor the amount paid for the note, and its interest, and all costs and expenses incurred in the prosecution of the action to enforce its collection. 4. If the assignment was fraudulent and with knowledge of the want of validity in the note, the assignee might, without suing the obligors, recover the money back that he paid for it. 5. When a solvent surety has been released erom liability to pay the note, by the laches and-failure of the assignee to sue when so notified by the surety, the assignee can not recover of the assignor on his assignment, although some of the principal obligors were also released on a plea of non est factum.
75 Ky. 160Tingle v. Tingle (1876)
The report oe the viewers oe a proposed change in a public road, giving the courses and distances of a single line run on the proposed route, is a substantial compliance with the statute which requires the report to describe the route laid out and reported by metes and bounds, and by general courses and distances. The order of the court establishing the alteration fixed the width of the road, but it was not indicated in the order or in the report whether the line reported was to be at one side or in the middle of the road. The line run by the surveyor, reported by the viewers, from a point located with certainty as the place of beginning, and running thence to a point equally certain as the terminus of the route, will be in law the center of the road or route.
75 Ky. 164Ullman v. Harper (1876)
Contingent remainders may be sold and proceeds of sale “ reinvested in the same kind of property,” as provided in article 6, chapter 63 of the General Statutes. In proceedings under this statute it is not essential that commissioners should be appointed to report the net value of the estate, the annual profits thereof, and whether the interest of the infants requires the sale to be made. It is only essential that the proof in the case shall satisfy the court that the proposed sale shall subserve the interests of all concerned. As the proceeds of the sale are to be “by the court reinvested in the same kind of property,” etc., it is not necessary that a bond should be executed.
75 Ky. 167Stull v. Davidson (1876)
Cases 36, 37 — PETITION ORDINARY APPEALS FROM WEBSTER CIRCUIT COURT. CITED 14 B. Mon. 158, Talbot v. Pierce. 4 Dana, 83, Bush’s heirs v. Hampton, &e. Civil Code, section 40. CITED General Statutes, chap. 39, art. 2, secs. 33, 85. Herman on Estoppel, page 131.'
75 Ky. 171Christopher v. Searcy (1876)
Case 38 — ON PETITION ON PETITION POR A REHEARING- IN COURT OP APPEALS.
75 Ky. 172Spring's adm'r v. Glenn (1876)
Case 39 — PETITION ORDINARY APPEAL PROM CAMPBELL CRIMINAL COURT. CITED 2 Duvall, 577, Board of Int. Im. of Shelby Co. v. Scearce. 9 Bush, 531, L. & P. Canal Co. v. Murphy. 10 Bush., 273, Jacob’s adm’r v. L. & 3ST. R. R. Co. 10 Bush, 677, City of Lexington v. Lewis’s adm’x. CITED General Statutes, chapter 37, section 3, page 551. MS. Opinion, June, 1859, Chiles v. Drake. 2 Revised Statutes, page 510. ■
75 Ky. 176Elliott v. Commonwealth (1876)
Case 40 — INDICTMENT APPEAL FROM GREENUP CIECÜIT COURT. CITED General Statutes, p. 337. Criminal Code, sec. 259. CITED Wharton on Criminal Law, pp. 655, 661, 665. 3 Met. 234, Glackan v. Commonwealth. 6 Car. & P. 390, Rex v. Williams. 9 Car. & P. 784, Rex v. Rodnay.
75 Ky. 181Blackburn v. Commonwealth (1876)
Case 41 — INDICTMENT APPEAL PROM BALLARD CIRCUIT COURT. CITED Phillips on Evidence, title “Accomplice.” Criminal Code, section 239. 3 Met. 337, Higgs v. Wilson. 6 B. Mon. 342, Vaughn v. Hann. 1 Bibb, 611, Snelling v. Utterback. 16 N. Y. 358, Hoskins v. The People. (Brief not in record.)
75 Ky. 191Parker v. Commonwealth (1876)
Case 42 — INDICTMENT APPEAL PROM WOODPORD CIRCUIT COURT. CITED General Statutes, chap. 12, art. 4, sec. 7. General Statutes, chap. 16, art. 2, sec. 1. Constitution, Bill of Rights, secs. 8, 12, 13. Criminal Code, secs. 123, 188, 334. 1Bishop’s Criminal Pro., 2d ed.; secs. 566, 384, 386, 381, 84, 58, 49, 69, 506. 9 Bush, 180, White v. Commonwealth. 1 Starkie’s Crim. PL, 2d ed., 182. 2 Hale Pis. Or. 182. 6 Greenleaf, 148, 152. 4 Iredell, 219. 39 Maine, 291, Damon’s case. 3 Met. 5, Commonwealth v. Perrigo. 1 Met. 368, Commonwealth v. Magowan. 1 Duvall, 91, Mount v. Commonwealth. 1 Bush, 11, Hensley v. Commonwealth. 2 Bishop’s Crim. Pro., 2d ed., sec. 93. 16 B. Mon. 206, Clark v. Commonwealth. (Brief not in record.)
75 Ky. 198Rushing v. Sebree (1876)
1. When a statute relates to more than one subject, that part of it which relates to the subject expressed in the title is constitutional— But that part which does not relate to the subject expressed in the title is unconstitutional and'void. That part of the act of February 10, 1874, entitled “An act to amend an act entitled ‘An act to transfer the equity causes from the Hickman Circuit Court to Hickman Court of Common Pleas,’ ” approved March 11, 1873, which provides that the Hickman Circuit Court shall have no original jurisdiction of equity causes which may thereafter be instituted in Hickman County, is unconstitutional and void. Said act relates to more than one subject; the jurisdiction of the Hickman Circuit Court as to equity causes to be thereafter instituted is not referred to directly or indirectly in its title; such jurisdiction has no necessary or natural connection with the subject embraced by the title. 2. An agent trading in his own name, can not object because his principal is not made a defendant with him in a suit on a note executed by him in his own name. 3. Ten per gent interest can be recovered only for the length of time SPECIFIED in the CONTRACT. The obligor agreed by letter that he would pay interest at the rate of ten per cent per annum on the aggregate amount due on the note from July 8 to December 21, 1873. The plaintiff was entitled to recover only six per cent after the latter date.
75 Ky. 202Lee v. Page (1876)
Case ¿^PETITION EQUITY APPEAL FROM WEBSTER CIRCUIT COURT. CITED Revised Statutes, chap. 86, art. 3, secs. 1, 2, 3. Herman on Estoppel, secs. 144, 145. 4 Met. 42, Woodcock v. Bowman. 2 Met. 515, Wells v. Cowherd. 6 Bush, 500, Campbell v. Clay. 4 Denio, 118, Miller v. Brinkerhoff. 4 Smith, 355, Shannon v. Kelly. 2 Salk. 674, Prigg v. Adams. 9 Leigh, 119, Eisher v. Tucker. 1 Duvall, 352, Thornton v. McGrath. 7 Bush, 311, Jarret v. Andrews. 16 B. Mon. 424, Thomas v. Thomas. CITED Revised Statutes, chap. 86, art. 3, secs. 1, 2. Revised Statutes, chap. 43, art. 2, secs. 9,14. Revised Statutes, chap. 70, sec. 1. 2 Met. 516, Wells v. Cowherd. 3 Mon. 266, Hynes v. Oldham. 3 J. J. Mar. 62, Reading v. Price. 1 Duvall, 849, Thornton v. McGrath. 6 Dana, 466, Vowles heirs v. Buckman. 7 Bush, 313, Jarret v. Andrews. 4 Met. 323, Fairbairn v. Means. 1 Mar. 246, Barlow v. Bell. 2 J. J. Mar. 516, Bell’s heirs v. Barnet. 18 B. Mon. 389, Barrett v. Churchill. 16 B. Mon. 295, Carpenter, &c. v. Strother’s heirs.
75 Ky. 209Pearce v. Hall (1876)
•4 m 1. The amount op the debt intended to be secured by a mortgage must be shown to a reasonable degree of certainty in the mortgage. If the amount is not ascertained, then such descriptive facts as are within the knowledge of the parties, and as tend to put one interested in the inquiry upon the track leading to a discovery, ought to be set out in the mortgage. The mortgage in this case, failing to state the amount of the note attempted to be secured, the claim of the mortgagees is postponed until the lien of subsequent attaching creditors is first satisfied. 2. Creditors attaching mortgaged property are entitled to the benefit of all defenses the mortgagor could make, so far as may be necessary for the protection of their attachment liens.
75 Ky. 215Wilson v. Unselt's adm'r (1876)
Case 46 — PETITION EQUITY APPEAL FROM HENDERSON COMMON PLEAS COURT. CITED Revised Statutes, chap. 37, art. 2, see. 9. General Statutes, chap. 39, art. 2, sec. 9. General Statutes, chap. 37, secs. 22, 23, 25. 6Mon. 596, Williamson’s adm’x v. Richardson. 2 Dana, 54, O’Bannon v. Roberts’s heirs. 4 Dana, 547, Combs’s devisees v. Branch. 6 B. Mon. 86, Atchison’s heirs v. Lindsey, &c. 8 Bush, 68, Rank v. Hill’s adm’r. 6 Bush, 510, Heeter v. Jewell. 7 B. Mon. 21, Smith v. Bland. 9 Bush, 720, Booth’s ex’rs v. Vanarsdale. 6 Mon. 617, Lampton v. Lampton’s ex’r. 2 J. J. Mar. 497, Dickerson v. Wilson. 6 J. J. Mar. 53, Higdon v. Higdon. 1 Statute Laws, page 663. 1 Greenleaf’s Evidence, sec. 347. CITED M. & B.’s Statute Laws, 663. Revised Statutes, 1 Stanton, 504. 7 B. Mon. 21, Smith v. Bland. 8 Bush, 67, Rank v. Hill’s adm’r. 2 Bush, 429, Taylor v. Young’s adm’r.
75 Ky. 233Elizabethtown & Paducah R. R. Co. v. Trustees of Elizabethtown (1876)
1. Property op railroad company in the limits op towns may be assessed and taxed for municipal purposes. But the ears of the company are not subject to seizure and sale by a ministerial officer to satisfy such taxes. The sale of two freight cars levied on by the town marshal in this case for town taxes is perpetually enjoined. The collection of such taxes can only be enforced by a court of equitable jurisdiction, like the claims of creditors of the company. 2. The exemption op the property op a railroad company prom taxation until its road is completed, by the charter of the company, exempts from all taxation imposed by authority of the state government, whether for general or local purposes. 3. Town charter does not repeal the railroad charter. The amendment of the town charter authorizing it to levy a tax upon the property of railroad companies in the limits of the town did not operate as a constructive repeal of the charter of a railroad company passed since the statute of 1856, by which the property of the company was exempted from taxation until the road was completed. 4. Ip two acts seemingly incompatible or contradictory can be enporced, they will both be upheld, and the one will not be regarded as repealing the other by construction, unless there is reason to conclude that the legislature intended that the subsequent act should control the former. 5. A railroad is an entire thing, not legally subject to coercive severance or dislocation. The locomotives, cars, etc., are treated as fixtures of the road. (Phillips v. Winslow, 18 B. Mon. 448.)
75 Ky. 240Commonwealth v. Davis (1876)
1. To FURNISH OR SUPPLY SPIRITUOUS, VINOUS, OR MALT LIQUOR TO A minor is to “give” it, within the meaning of the statute against selling liquor to minors. The defendant is guilty under the statute, although he may have purchased the liquor with money furnished in whole or in part by the minor. The word “give” in the statute is used in its more enlarged sense, and signifies “ to furnish, to supply.” 2. The statute does not apply to vendors of liquor alone. Whenever a minor is furnished with spirituous, vinous, or malt liquor by any one other than his parent, without the special written direction of the father or guardian of such minor, there is a violation of law. 3. Penal statutes are construed with a view to carry out the intention of the legislature. The rule of the common law requiring penal statutes to be strictly construed has been long since abrogated in this state. (General Statutes, chap. 21, secs. 15, 16.)
75 Ky. 243Young v. Commonwealth (1876)
1. The ownership of the house is sufficiently stated in an in- • dictment for arson, in which the house is alleged to have been occupied by Hattie Taylor as a residence. In arson the house may be alleged to have been the property of the tenant in possession. 2. Under an indictment for arson the defendant may be convicted of the crime of an attempt to commit arson. (Criminal. Code, section 258.) 3. The charge that the defendant “willfully and feloniously” set fire to the house is equivalent to a charge that the act was done “willfully, maliciously, and unlawfully.” 4. “Maliciously” being omitted in an instruction to the jury, concluding that “they should find him not guilty,” the defendant was not thereby prejudiced. After instructing the jury that they should find the defendant guilty if they believed from the evidence beyond a reasonable doubt that he willfully, maliciously, and unlawfully set fire to or attempted to burn the house, the circuit court gave another instruction, in which the jury were told that unless they believed beyond a reasonable doubt that the defendant willfully set 'fire to or attempted to burn the house they should find him not guilty. The defendant was not prejudiced by omitting the word “maliciously" in the latter instruction.
75 Ky. 247Mitchell v. Commonwealth (1876)
Case 4 — BAIL BOND APPEAL FROM BOYLE CIRCUIT COURT. CITED Criminal Code, sections 68, 69, 70, 77, 81, 88. MS. Opinion, March 11,1875, Commonwealth for White v. Sanders. 2 Met. 882, Commonwealth v. Coleman. (Brief not in record.)
75 Ky. 249Hahn v. Horstman (1876)
1. Damages may be liquidated in advance as compensation. Parties to a contract may agree upon any amount of compensation for its breach as liquidated damages which does not manifestly exceed the amount of injury suffered, and the party in default will be required to pay this fixed sum as an equivalent for the loss sustained. (Pierce v. Fuller, 8 Mass. 228; Bagley v. Peddie, 16 N. Y. 469; Mott v. Mott, 11 Barbour, 127.) 2. If the actual damage sustained by the party complaining can not be reached or determined by any known rule of law, then the courts are disposed to look alone to the measure of damage fixed by the contract. But as a general rule, where the actual damage can be ascertained from the contract itself, the courts are always inclined to disregard the language of the contract, so far as it fixes the damage, and particularly in cases where a strict construction of the language used would result in oppression to the party against whom the claim is asserted, by giving the complaining party more damages than he has really sustained. (Sedgwick on Damages, 420.) See opinion for a further statement of the rules for distinguishing and determining whether an agreed sum is to be considered as liquidated damages or as a penalty. 8. The amount agreed to be paid as liquidated damages is disregarded in this case, and the actual damage directed to be ascertained and allowed to the injured party. The purchasers of a lot for the purpose of erecting a distillery thereon agreed to pay $1,800 for it, and as part of the contract of sale the vendor agreed to fill up the lot to a height as marked by an engineer, to fill up an alley, to dig and wall up a reservoir for water, etc.; the filling of the lot for the use of the buildings to be completed within twenty-four days, the filling of the balance of the lot within two months, and the filling of the alley within three months from the date of the contract; and upon his failure to complete the work as agreed the vendor agreed to pay as liquidated damages $20 for each day the work might remain incomplete after the expiration of the agreed time. The vendor completed sixty per cent of the work, and wholly failed as to the remainder. Held that the purchasers are not entitled to the $20 for each day the work might remain incomplete, but are entitled to recover the reasonable value of the material and labor necessary to complete the work, as the true criterion of damages sustained by them; and that if the purchasers were compelled to abandon their work on the distillery by reason of the failure of the vendor to fill up the lot, then this work upon the lot, if of no value to them by reason of the breach of the vendor, should also be estimated as part of the damages sustained; but that the purchasers were not entitled to any damages sustained by reason of profits which they might have realized upon their distillery if it had been completed and put in operation as they expected at the time of the purchase of the lot.
75 Ky. 259Gaar v. Huggins (1876)
Case 6 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. CITED Chitty on Contracts, 11 Amer. ed., p. 361. 11 B. Mon. 118, Kennedy v. Bohannon. CITED Collyer on Partnership, 487. Story on Partnership, sec. 161. Smith on Contracts, sec. 346. 3 Littell, 425, Gardner,,Price & Co. v. Towsey. 7 J. J. Mar, 423, Scott & Thatcher v. Colmesnil. 5 B. Mon. 168, Magill v. Merrie & Bullin. 3 Kent, 4th ed., page 67. 1 Parsons on Contracts, 170 and 204. 9 Dana, 166. 11 B. Mon. 119. 8 Wend. 424. 3 Pick. 179. 1 McCord, 388. 17 Wend. 526. 4 Wheaton, 432 and 482. 4 Johnson, 224. 38 N. Y. 94. 35 N. Y. 500. 40 111. 455. 16 B. Mon. 355, Merritt v. Pollys, &e.
75 Ky. 264Carver v. Commonwealth (1876)
If the owner of the soil erects a fence across a public road on Ms own land, no notice to him to remove it is necessary to fix his responsibility under the statute. (General Statutes, chap. 94, art. 1, sec. 41.) But if the obstruction is erected by another person, the owner of the land is not responsible for its continuance, unless he fails to remove it upon notice so to do by the surveyor or superintendent of the road.
75 Ky. 266Williams v. Obst (1876)
1. Signing name upon the back of a promissory note does not make the party so signing the technical surety of the payor. 2. The payee must treat one as an assignor who signs his name upon the back of a promissory note if he desires to hold him bound in any way. The payee must prosecute the payor to insolvency with legal diligence as a condition precedent to his right to hold the assignor bound for the consideration that may have passed from the payee to the payor. 3. See. 14, ehap. 22, General Statutes, which provides that “Every person who shall sign his name on the back of a promissory note shall be deemed and treated as an assignor as to the party holding it unless in writing a different purpose be expressed; or the note can be legally placed upon the footing of a bill of exchange,” must be held to be a repeal of sec. 2, act of January 24, 1866. (Myers’s Supp. 741.) 4. The fact that the note might have been negotiated at one of the chartered banks of this commonwealth or at a national bank located in this state, and thereby placed upon the footing of a bill of exchange, does not take it out of the operations of the statute. A promissory note can not be placed legally upon the footing of a bill of exchange after its maturity.
75 Ky. 268Beck v. Obst (1876)
Where a part op an alley in Louisville was improved in 1866 at the cost of the owners of the lots adjacent to the improvements then made, the owners of those lots should not he required to contribute equally with the owners of the other lots, constituting the fourth of the square, to pay for the improvement of the remainder of such alley. The requirement of the present charter that the cost of such improvements shall be apportioned against the lots in each fourth of a square, etc., was doubtless intended to apply only to improvements extending along tbe whole square. In such a case the apportionment should he so made as to equalize the cost of the improvement as if the whole had been done under one ordinance and contract at the aggregate cost under both contracts.
75 Ky. 271Collins v. Commonwealth (1876)
Case 10 — INDICTMENT FOB, MURDER APPEAL PEOM EAYETTE CIRCUIT COURT. cited I Greenleaf on Ev. secs. 158, 159, 162, 163. 3 Bush, 3, Dye v. Commonwealth. II Bush, 344, Holloway v. Commonwealth. (Brief not in record.)
75 Ky. 274McArthur v. Goddin (1876)
1. Action on foreign judgment and defenses thereto. The same matters can not be relied on as a defense to an action in this state on a foreign judgment, which had become dormant because no execution was issued thereon for five years and had been revived, which were presented and relied on in the proceedings, by motion to revive in the court in which the judgment was rendered. 2. An action on a foreign judgment is not barred by the pendency of an appeal from an order reviving it, in the state where it was rendered, in which the judgment was not annulled or superseded. 3. Action on foreign judgment barred by statute of limitations. Fifteen years without execution issued thei'eon will bar an action upon a judgment or decree of any court of this state, or of the United States, or any state or territory thereof. (General Statutes, sec. 1, art. 3, chap. 71.) An execution issued on such a judgment of any court of this state will be quashed on motion. 4. The statute of limitations, where the remedy is sought, must govern. (Bennett v. Devlin, 17 B. Mon. 358; Graves v. Graves, 2 Bibb, 207.) 5. When an action is barred by the laws of another state, on a cause of action or judgment which accrued or was rendered therein, an action on such cause of action or judgment can not be maintained in this state. (General Statutes, secs. 18, 19, art. 4, chap. 71.) 6. The statute of limitations of this state may be relied upon ■ as a defense to an action upon a cause of action or judgment which accrued or was rendered in another state, although an action on such cause of action or judgment might not be barred in the state in which the cause of action accrued or judgment was rendered. (General Statutes, sec. 1, art. 3, chap. 71.) 7. Every state has complete control over the remedies which it offers to suitors in its courts. (Cooley’s Con. Lim., 3d ed., p. 361.) 8. The right to a particular remedy is not a vested right. 9. Giving full faith and credit to judgments of other states. A. judgment rendered by a court of a sister state having jurisdiction will be questioned on the merits by the courts of this state, only so far as it can be assailed in the courts where the judgment was rendered.
75 Ky. 283Commonwealth v. Lay (1876)
Case 12 — PETITION ORDINARY APPEAL EROM KNOX CIRCUIT COURT. CITED 8 Bush, 220, Commonwealth v. Cook. CITED 1 J. J. Mar. 555, Bell v. Commonwealth.
75 Ky. 287Huffaker v. National Bank (1876)
Case 13 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. CITED Civil Code, section 125. Revised Statutes, 1 Stanton, p. 185. General Statutes, p. 677, p. 252, sec. 21. 7Bush, 474, Young, McDowell & Co. v. Bennett. 2 M. & B. Statute Laws, 1228. 3 Mon. 238, Bank of Kentucky v. Pursley. 1Bruse (111. Rep.) 84. 4 Ad. & EL 786, Wise v. Charlton. 10 Bush, 216, Kellar v. Williams. 106 Mass. 559-60. cited Civil Code, secs. 144, 166, 156, 145, 161. 1 Bush, Benton, &c. v. White’s adm’r. 8 Bush, 583, Wing, &c. v. Dugan. 2 Metcalfe, 88. 3 Met. 28, Dodds v. Combs. 3 Mon. 238, Bank of Kentucky v. Pursley. 1 Ohitty’s PL, pp. 301, 362. 2 Metcalfe, 279. 3 Mass. 100, Avery v. Inhabitants of Tyringham. 1 Jacobs’s Law Die., “Bill of Exchange.” 4 J. J. Mar. 157, Fleming v. Kenny. 1 Bush, 200. 1 Mon. 237, Hackwith v. Damron. 4 Littell’s Laws of Kentucky, 383. 1 J. J. Marshall, 381. 5 Littell, 196, Hudson v. Wilkins. 3 Statute Laws (Loughborough), p. 491. 5Littell, 45. 1 Duvall, 59, Gregory v. McFarland. 1 Duvall, 326, Harmon v. Hicks, &c. 9 Ben Monroe, 71. 2 Met. 275, Totten v. Cooke. 1 Bush, 9, Burton v. White’s adm’r. 7 Bush, 639. 4 Met. 284, Skillman v. Muir’s adm’r. 4 Ben Monroe, 203. 6 Bush, 602, Bradley v. Mason. 16 Ben Monroe, 5. 14 Ben Monroe, 213. In this action the petition is as follows: Jefferson Court of Common Pleas. The National Bank of Monticello,.......Plaintiff, J- Petition. The plaintiff, the National Bank of Monticello, a body corporate, organized and doing business at Monticello, Ky., as a national bank, under and pursuant to an act of congress known as the national currency act and amendments thereto, states that the defendants, R H. Edelen, Jo. A. Huffaker, and J. F. Shy, doing business as dealers in hats, caps, etc., in Louisville, Ky., under the name and firm style of Edelen, Huffaker & Shy, are indebted to plaintiff in the sum of one thousand eight hundred dollars upon the note of said Edelen, Huffaker & Shy, No. 337, date May 2, 1874, payable ninety days thereafter to Walton & Bros., and discounted and transferred to plaintiff by indorsement of said Walton & Bros, on the back thereof, of all which defendants hath due notice, yet said debt remains unpaid. That said defendants are indebted to plaintiff in the further sum of one thousand eight hundred dollars upon the note of Walton & Bros., No. 339, executed May 2, 1874, payable ninety days after said date to the order of the defendants, and indorsed by the defendants, Edelen, Huffaker & Shy. Said notes were at their maturity, to wit, on the 3d day of August, 1874, presented at the counter of the National Bank of Monticello, payment demanded, and, being refused, were duly protested, and notice of said protest given in due time to defendants. Said notes, and a copy of the protest of each, are herewith filed as part hereof, and no part of either of said notes has been paid, nor any part thereof been paid; wherefore plaintiff prays judgment for each of its debts, $3.61 costs of protest, and for all other proper relief. In the amendment to the second paragraph of the foregoing petition it is .alleged “ that heretofore, to wit, on the 2d day of May, 1874, at the state and circuit aforesaid, Walton & Brothers executed their promissory note to the order of the defendants, Edelen, Huffaker & Shy, ninety days after date, for the sum of eighteen hundred dollars, negotiable and payable at the National Bank, of Monticello, Ky. It was agreed by the parties to said note, including the defendants, that said bank (plaintiff), in discounting this note, might reserve interest at the rate of ten per cent per annum, and in default of payment at maturity the note was to bear ten per centum per annum. The plaintiffs allege that Walton & Brothers were merely accommodation drawers of said note, and the defendants, Edelen, Huffaker & Shy, were the real parties to said note as obligors; that it was contemplated at the time of the making of said note, and so agreed by defendants, Edelen, Huffaker & Shy, that plaintiffs were to discount said note, and that the same was then and there agreed to be and was discounted by plaintiffs at their bank in Monticello, Ky., whereby plaintiffs became and are the owners thereof, and the said note was then and there placed upon the footing of a foreign bill of exchange, and the like remedies and rights then and there accrued to plaintiffs as on foreign bills of exchange. Plaintiffs aver that at the maturity of said bill or note it was presented at the place at which it was negotiable and payable, and payment thereof demanded, which was refused, and the same was then and there protested for non-payment, and due notice given of such demand and non-payment and protest to the defendants. Said note or bill is here referred to and filed and made part hereof, together with the notice of protest, which is also made part hereof. “The plaintiffs aver that they paid the protest fees on said note, amounting to $1.81, which, together with the amount of said note, principal, interest, and costs, is now due and owing from the said defendants ; wherefore plantiffs pray judgment for their said note, interest at ten per cent per annum thereon, protest fees, and all proper relief. Edelen was not served with process. Judgment was rendered against Huffaker & Shy for the debt set forth in the first paragraph of the petition. That judgment is reversed because of the defect in the petition as set forth in the opinion of the court.
75 Ky. 293Matthey v. Wood (1876)
1. In executed contracts the general rule is, that to obtain a rescission the party complaining must allege and prove a distinct case of fraud, when fraud is the ground relied on for relief. 2. In executory contracts equity will not assist a party who has, even by innocent misrepresentations, induced the other party to act. (Story’s Equity, sec. 749.) 3. For “falsely and fraudulently representing the house to be perfectly dry and free from dampness,” an executory contract for its purchase is rescinded.
75 Ky. 296Seiglestyle v. Diesenroth (1876)
1. The mechanics’ lien law for Louisville and Jefferson county of March 2, 1869, is still in force. (1 Session Acts 1869, p. 562.) A defendant to a petition filed under this act may file an answer, and assert his lien upon the property sought to he subjected without making his answer a cross-petition against the owner. Being before the court on the original petition, the owner of the property is bound by said statute to take notice of all claims asserted by any one who was made a defendant in the original petition against him, or who was made a party by order of the court during the progress of the suit. But a personal judgment against the employer or owner of the property is not authorized by said statute without the service of a summons issued upon such answer as upon a cross-petition against him. 2. A replevin bond taken under a judgment rendered without answer or service of a summons in favor of one defendant against a co-defendant should be quashed on motion.
75 Ky. 298Lucking's adm'r v. Gegg (1876)
1. “After the death of the payor or obligor of a contract for the loan or forbearance of money at a higher rate of interest than six per centum per annum, such contract after maturity, and judgment rendered thereon, shall hear six per centum per annum.” (Acts 1871, page 61.) 2. If a surety pays a greater rate of interest than six per centum per annum on the debt of his principal after the maturity of the debt and after the death of the latter, he can not recover from the estate or personal representative of his principal any interest so paid by him in excess of six per centum per annum. 8. A surely who pays the debt of Ms principal after the death of the latter is not required to make demand of his administrator before suit. 4. It is not necessary to plead and rely upon the statutes against usury. 5. All contracts to pay more than legal interest are void, and the courts have no power to enforce them. 6. If it appears, from the petition of the plaintiff, that he is seeking to recover usurious interest, it is the duty of the court to purge the claim of the usury before rendering judgment.
75 Ky. 301Moran v. Moran (1876)
A MARRIED WOMAN SHOULD NOT BE AUTHORIZED TO TRADE, ETC., AS A “reme sole,” as provided in General Statutes, chapter 52, article 2, section 6, upon the sole ground that her husband is insolvent. “To confer upon a married woman the power to trade as if she were sole, upon the single ground that her husband is insolvent, and that too when she has no estate and no trade or calling enabling her to earn money, would open a wide door for fraud, is forbidden by public policy, and is not demanded by a fair and reasonable construction of the statute.”
75 Ky. 304Farmers & Drovers' Bank v. Sherley (1876)
Case 18 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED 5 Dana, 241, Patterson v. Pope. 4 Johnson, 123, Hayes v. Ward. 12 B. Mon. 44, Rice v. Downing. 23 Mo. 232, Hays v. Steamboat Columbus. CITED Story’s Equity, section 327. 2 Smith’s Leading cases, 226.
75 Ky. 310Rilling v. Thompson (1876)
1. Six per cent interest apter maturity. — A note dated June 12, 1872, containing an agreement to pay, one year after date, a certain sum of money with, ten per cent interest, payable semi-annually, and containing no agreement as to interest after maturity, draws interest after maturity at the rate of six per cent per annum. 2. A judgment for an attorney’s fee of fifty dollars was erroneously rendered in this case in foreclosing a mortgage containing a stipulation that if it had to be enforced by judicial proceedings the mortgagors would pay, in addition to the note and interest, a reasonable attorney’s fee. (Thomasson v. Townsend, 10 Bush, 114.)
75 Ky. 312Scuffletown Fence Co. v. McAllister (1876)
Case 20 — PETITION ORDINARY APPEAL EROM HENDERSON COMMON PLEAS COURT. cited Cooley’s Con. Lim., pages 390, 132, 254, 198-202, 402, 416, 524, 531, 480, 488, 573-589. Dillon on Municipal Corporations, sections 596, 598, 603; p. 573, n. 1; p. 70, n. 1. Am. Law Reg., Aug., 1873, p. 499. Herman on Estoppel, section 169. Bou. Law Die., “Assessment.” Acts 1871, vol. 2, page 266. 2Am. Railway Rep. 91. 1 Am. Railway Rep. 290. 9 B. Mon. 330, Ciieaney v. Hooser. 2 Met. 350, Cypress Pond Draining Co. v. Hooper. 8 Bush, 508, Broadway Baptist Church v. McAtee, &e. 3 Paige, 45, Beekman v. Saratoga & S. R. R. Co. 6 How. 546, West River Br. Co. v. Dix. 4 Bush, 547, Malchus v. Highlands. 3 Wendell, 263, Bluker v. Ballou. 5 Bush, 241, Ferguson v. Landram. 1 Baldwin, 74, Bennett v. Boggs. 1 Angelí & Ames on Oorp., 10 ed., sees. 332, 333, 347, 357. 3 Watts, 392, McMasters v. Commonwealth. 5 Bush, 229, County Judge of Shelby Co. v. Shelby R. R. Co. 1 Duv. 372, Arnold v. Cov. & Cin. Bridge Co. 9 B. Mon. 535, Talbot v. Dent. 1 Paige, 117, French v. Kirkland. 1 Paige, 560, Phillips v. Wickham. 13 B. Mon. 26, Slack v. M. & L. R. R. Co. 11 B. Mon. 153, Justices of Clark Co. v. P. W. & K. R. Turnpike Co. 15 B. Mon. 491, Covington v. Southgate- 11 Ire. (N. C.) 558, Mills v. Williams. • 1 Bush, 567, 572. 11 Johnson, 77. 2 Kent’s Com., 338. 29 Ind. 332. 2 La. Ann. 829. 27 Mo. 495. 11 La. Ann. 220. 21 Ark. 40. 15 La. Ann. 147. 14 La. Ann. 498. 27 Miss. 209. 16 La. Ann. 429. 47 Miss. 367. 38 Miss. 652. 24 Mo. 20. 41 Cal. 351. 31 Cal. 254, Taylor v. Palmer. 20 Mich. 472, The People v. Salem. 32 Ind. 185, O’Reilley v. The Kankakee Valley Draining Co. 18 N. J. Eq. 54, Coster v. Tide Water Co. 65 Penn. St. 150, Hammett v. Philadelphia. 36 Barb. 177, People v. Lawrence. 17 B. Mon. 230, Sharp’s ex’r v. Dunavan. 27 N. Y. 306, People v. Nearing. 12 Alan, 612, Springfield v. Gay. 97 Mass. 152, Brewer v. Springfield. 47 Cal. 222, Hager v. Supervisors. CITED Angel! & Ames on Corp., 3d edition, page 229. Acts 1871-2, vol. 2, page 146. 1 Am. Railway Rep. 215. 4 Am. Railway Rep. 400. 2 Dutch. 839, Camden v. Allen. 2 Met. 353. 7 B. Mon. 167, Pearce v. Patton. 20 Mich, 452, The People v. Town of Salem. 60 Maine, 124, Allin v. Inhabitants of Jay. 21 Penn. 167, Sharpless v. Mayer. 12 Am. Law Reg., page 498. 14 Ind. 199, Anderson v. Kearns Draining Co.
75 Ky. 318Koch v. Godshaw (1876)
1. Prospective profits, which the vendee might have realized by running a bakery establishment, are no criterion by which to fix the amount he has been damaged by the vendor’s failure to comply with his contract for the sale of such establishment. 2. The true criterion of damages, in such a case, is the difference between the value of the property at the time and place of the sale and the price agreed on. 3. The declaration of an agent after his agency expired is inadmissible as evidence against his principal.
75 Ky. 321Gebhard v. Garnier (1876)
Case 22 — PETITION OEDINAEY APPEAL EEOM JEFFERSON COMMON PLEAS COURT. CITED 2 Met. 89, Riggs v. Maltby & Co. 2 B. Mon. 456, Shaefer v. Gates, &c. 6 Barbour, 617, Noyes v. Butler. 8 B. Mon. 306, Tyler v. Trabue. 2 Cin. Sup. Ct. Rep. 29. Civil Code, sec. 148. 14 B. Mon. 67, Hill for &c. v. Barrett. 28 Md. 426, Seevers v. Clement. 13 Peters, 312, McElmoyle v. Cohen. 99 Mass. 273, Polgier v. Columbian Ins. Co. 25 Miss. 513, Steen v. Steen. 11 Wendell, 648, Durning v. Corwin. 10 Howard’s Pr. Rep. 539, Hollister v Hollister. CITED Story on Conflict of Laws, section 607. Civil Code, section 145. Constitution United States, art. —, sec. 1. Peters’s C. C. 30, Kemp v.-Kennedy. 1 Chitty’s PI. 100, 109, 116, 117, 371. 4 B. Mon. 136, Davis v. Connelly’s ex’rs. 9 Bush, 522, L. & P. Canal Co. v. Murphy. 7 Bush, 659, Spalding, adm’r v. Wathen. 1 Greenleaf on Evidence, section 607. 4 Mumf. 241. 15 N. H. 227. 9 Mass. 467. 11 Vermont, 425. 7 Cranch, 481. 22 Vermont, 419. 4 Wheat, 234. 15 Johnson, 121. 5 Gill & I. 500. 11 Howard, 165. 7 Ohio, 273. 13 111. 436. 9 S. & R. 252. 12 Ark. 765. 2 Strange, 1241. 10 Georgia, 371. 1 Willis, 97. 10 Barbour, 97. 2 Saund. 366. 15 Vermont, 46 1 Bush, 9, Burton v. White’s adm’r. 7 Dana, 494, Singleton v. Cogar. 9 Dana, 102, Peebles v. Watts. 4 McLean, 442, Sprague v. Litherberry. 5 McLean, 148, Biggs v. Blue. 5 McLean, 167, Lathrop v. Stuart. 3 McLean, 319, Nelson v. Moon. 3John. 105. 14 B. Mon. 69. 7 Cal. 584. 6 Cush. 360. 18 111.. 292. 20 How. 541. 3 Wall, jr., 569, Cromwell v. Bank of Pittsburg. 2 Wallace, 328, Harvey v. Tyler. 2 Howard, 341, Grignon v. Astor. 19 N. H. 241. 27 Ark. 340. 28 Mo. 319. 22 Barbour, 223. 13 Ga. 318. 30 Car. 196, Coil v. Haven. 13 Peters, 312, McElmoyle v. Cohen. 10 Bush, 262, Jacobs’s adm’r v. L. & N. R. E. Co. 16 Howard, 65, Pennington v. Gibson. 18 Ohio, 546, Morgan v. Burnet. 10 S. & E. 240, Barton v. Burgot.
75 Ky. 327Hardee, Son & Co. v. Hall (1876)
Case 23 — PETITION ORDINARY APPEAL FROM JEFFERSON COMMON PLEAS COURT. CITED Smith’s Mercantile Law, pages 401, 402. Park on Insurance, page 298. 3 B. & Ad. 528, Scaife v. Tobin. 4 La. Ann. 132, Cole v. Bartlett. 1Parsons on Shipping, pages 478-475. 9 Dana, 148, Louisville Ins. Co. v. Bland. 4 B. Mon. 160, Fireman Ins. Co. v. Fitzhugh. 1 East, 220, Birkley v. Presgrave. 5 Wend. 875, Hill, &c.. v. Packard. 5 Ala. 136, Eckford v. Wood. 1 Greenleaf’s Ev., sections 188, 527. 2 Greenleaf’s Evi, section 116. 1 Chitty’s Pleading, pages 290, 291. 13 Peters, 843, Col. Ins. Co. v. Ashby. 19 Johns. 284, Powell v. Trustees Newburgh. CITED Abbott on Shipping, 247, 362, 248, 611, 288. Flanders on Shipping, section 536. Angelí on Carriers, section 370. Redfield on Carriers, sections 270, 280, 334. Kent’s Commentaries, vol. 3, page 328. Starkie on Evidence, vol. 1, page 257. Greenleaf on Evidence, sections 523, 539, 189. 3 B. Mon. 229, Smith v. Lewis. 3 Barn, and Adol. 523, Scaife v. Tobin. 4 Louisiana, 130, Cole v. Bartlett. 9 B. Mon. 374, Samuel v. Hall. 1 B. Mon. 29, Thomas v. Beckman. 5 T. B. Mon. 270, Roberts v. Smiley. 36 Conn. 564, Fox v. Holt. 23 English Common Law Reports, 139. 11 Illinois, 579, Gillett v. Ellis.
75 Ky. 333Gridler v. Farmers & Drovers' Bank (1876)
Case 24-PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. CITED General Statutes, chap. 28, art. 2, sec. 10. Ibid., section 5, page 677. Bacon’s Abr., Pleas and Pleading, G. 4. Stephens on Pleading, 442. Newman’s PI. & Pr. page 544. Civil Code, section 125. New York Code, 149. Smith’s Mercantile Law, 327. 1Chitty’s Pleading, 541, 542. 1 Saunders, 316, Smith v. Yeomans. 8 Howard, 149, Hull v. Smith. 4 Howard, 155, Davis v. Potter. 7 Howard, 171, Sherman v. Bushnell. 7 Bush, 474, Young, McDowell, &c. v. Bennett. 7 Barbour, 477, Bank of Virginia v. Cameron. 2 Metcalfe, 380, Corbin v. Commonwealth. 4 Metcalfe, 114, Hutchings v. Moore. 8 Bush, 586, Wing v. Dugan. 12 Howard, 500, Grant v. Rapelle. 10 Howard, 455, Benedict v. Tanner. 12 Howard, Pr. R. 112, Flood v. Reynolds. 18 B. Monroe, 60, Francis v. Francis. 18 B. Monroe, 82, Morton v. Waring. 10 Bush, 234, Orphan Asylum v. Fleming’s ex’r. CITED General Statutes, pages 251 and 677. MS. Opinion, Huffaker v. Nat. B’k of Monticello. Story’s Eq. Pleadings, sections 852, 854. 7 Dana, 47, Amos’s adm’rs v. Heatherby. 2 Met. 226. 1 J. J. Mar. 215. 5 J. J. Mar. 520. ' 5 Dana, 525. 1 Abb. 254. 12 Howard’s Pr. 38. 1 Chitty’s Pleading, page 540 (Amer. ed.) 8 Bush, 584, Wing v. Dugan. 8 Howard, Pr. R., page 28. 7 T. B. Mon.. 293, Hutchinson v. Sinclair. 1 Bibb, 173, Cowan v. Price. 2 Bibb, 69, Moore v. Lockett. ' 5 J. J. Mar. 454, Murdock v. Grant. 1 Dana, 105, Long v. Dupuy. 3 Dana, 255, Bright & Taylor v. Wagle. 9 Dana, 82, Hill v. Lackey. 8 B. Mon. 451, Proctor v. Terrill. 5 Dana, 226, Samuel v. Sayre. 2 B. Mon. 40, Luckett v. Triplett. 1 E. D. Smith, Ketchum v. Zerega. 1 Code, R. N. Y., Hance v. Reming. 1 Abb. 187, Sherman v. N. Y. Central Mills. 7 Bush, 477, Young, &c. v. Bennett. 1Cbitty’s Pleading, 515, 540, 544. 1 Story’s Eq. Juris., section 640. 1 Watts, 220, Geddis v. Hawks. 2 Watts, 220, Ramsey's appeal. 2 Barr, 304, Sehenek’s appeal. 2 New Hampshire, 488, Moses v. Ranlet. 2 Connecticut, 350, Frindley v. Hosmer. 3 Casey, 42, Keim’s appeal. 12 Howard’s Pr. Falis v. Hicks. 15 Abb. 287, Kellogg v. Baker. 19 Vermont, 403, Wood v. Bank of Rutland.
75 Ky. 337Murray v. Young (1876)
1. Vicious animals — Liability of owner for injuries committed by. To render the owner responsible at common law for injuries committed by an animal of a domestic and quiet nature, such as a dog or a horse, he must be shown to have had knowledge that it was accustomed to do mischief. 2. In such a case the gist of the action is not the negligent beeping, but a keeping with the knowledge of the mischievous propensity; and this knowledge must be affirmatively proved, for although the animal may have done mischief, yet if this is unknown to the owner he will not be liable. ^ It was competent to show specific attacks by defendants dogs upon stock owned by persons living in the neighborhood where they were kept. That the defendants dogs were generally repm-ted in the neighborhood to be vicious and destructive was also competent. . 3. In this action for killing and injury of plaintiff’s sheep by defendant’s dogs the court properly directed the jury to find specially as follows: First — -Were the sheep of plaintiff killed or damaged by dogs owned or kept by defendant? Second — If said sheep were so killed or damaged by dogs kept or owned by defendant, what amount of damage, considering the value of the sheep killed at the time and place of killing, and injury, if any, done to the remainder of the flock of plaintiff’s sheep, did plaintiff sustain by reason of said killing and injury to his sheep? Third — If they find that the dogs of the defendant killed or injured the sheep of plaintiff as complained of, they will say whether or not said dogs were, prior to said killing or injury, of mischievous habits and disposition. Fourth — Was the defendant, before the killing and injury of the sheep complained of, apprised or notified of the disposition and habits of said dogs, and that such disposition and habits were mischievous or vicious?
75 Ky. 342Stowers v. Commonwealth (1876)
Indictment por poroery must allege facts constituting the offense. To charge one with forgery is merely stating a conclusion of law, and is insufficient. To charge that the accused, “ did- forge the name of B. to an instrument of writing purporting to be the promissory note of S. & B. . . . with intent to defraud” is insufficient. The indictment in this ease should have charged that accused signed B.’s name to the instrument, or that he procured somebody else to so sign it, with the intention to defraud, etc. Whether the indictment should allege the name of the person intended to be defrauded is not- decided.
75 Ky. 344Anderson v. Briscoe (1876)
Case 27 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Civil Code, sections 474, 574, 257, 479, 484, 2. General Statutes, secs. 2, 3, 4, 5, pp. 426, 427. General Statutes, page 429. 3 Bush, 119, Taylor v. Taylor. 3 Bibb. 249. 6 Mon. 205. 6 Bush, 51. 3 Bush, 490. 3 Met. 347.. 9 Dana, 20. 3 Bush, 93, Hanna v. Guy. 5 N. H. 520, Rix v. Johnson. 1 Carter Ind. 28, Holman v. Collins. 2 Cushing, 417, Bradley v. Bassett. 9 Conn. 42, Fitch v. Smith. 6 How. 21, Collier v. Stanbough. 4 Greene (Iowa), 497, Spratt v. Reid. 9 N. H. 48, Cogswell v. Mason. 4 N. H. 548, Woodward v. Gates. 6 Maine, 106, Howard v. Turner. 4 Met. 259, Thompson v. Healey. 1 J. J. Mar. 356, Todd v. McClanahan. 18 B. Mon. 627. 27 Ind. 453, Taylor v. Wilkeson. 26 Maine, 277, Pierce v. Strickland. 14 Mass. 20, Williams v. Amory. 18 Pick. 495, Chamberlain v. Doty. 34 Maine, 464, Fitch v. Taylor. 34 Maine, 201, Rawson v. Lowell. 23 Maine, 538, Merrill v. Burbank. 17 B. Mon. 369, Ettlinger v. Tansey. 10 B. Mon. 87, Dudley v. Price. CITED General Statutes, secs. 9,10,11; article 12, page 430. General Statutes, see. 21, art. 1, chap. 63. 3Bibb, 187, Eastland v. Jordan. 3 Bibb, 453, Jones v. Langhorne. 3 J. J. Mar. 265, Cosby v. Ferguson. 8 B. Mon. 61, Pope’s ex’rs v. Elliot. 7 B. Mon. 645, Blanchard; &c. v. Taylor’s heirs. 2 Littell, 75, Strode v. Churchill. CITED Rhorer on Judicial Sales, pages 200, 240. Civil Code, sections 560, 474, 875. 1 Bush, 207, Huston v. Duncan. 2 Bush, 514, Holeman v. Holeman. 2 Bush, 238, Deposit Bank, &c. v. Berry. 6 B. Mon. 488, Owens v. Patteson. 9 Bush, 213, Warner v. Bryant. 1 Bush, 495, Greer v. Powell. 5 J. J. Mar. 297, Baber’s adm’r v. Low. 1 Bush, 294, Ward’s adm’r v. Rohinson. 1 Duvall, 206, Parsons v. Meyburg. 6 J. J. Mar. 488. 2 Bibb. 40U 3 J. J. Mar. 213. 1 Littell, 356. 13 B. Mon. 507, Casey v. Gregory. 15 B. Mon. 476, Walker and wife v. McKnight.
75 Ky. 350Grundy v. Commonwealth (1876)
1. The subject of “An act to amend the revenue laws of this commonwealth,” approved Feb. IS, 1869 (1 Session Acts 1869, page 28), is expressed in the title. The revenue of the state is a distinct subject, and an act to amend the revenue laws must be understood from its title to relate to the revenue system, and as sufficiently specific and certain. 2. All bonds executed by sheriffs and collectors of the revenue are valid and binding on them and their sureties, as statutory bonds, whether executed at or after the January or February term of the county court, and the same remedies may be had thereon when executed after February as if executed at the January or February term. 3. The forfeiture of the sheriff’s office denounced by the statute for his failure to execute bond at the January or February term of the county court — the forfeiture not having been adj udged— is waived by the commonwealth by the execution and acceptance of the bond after February, as authorized by the act of February 13,1869. 4. The remedy provided by the General Statutes against sheriffs, and their sureties on the sheriff’s revenue bond, by motion, applies to bonds executed before as well as after the General Statutes took effect. The bond in this case was executed after February. 5. The legislature may repeal and re-enact laws relating to the remedy alone. The remedy provided by the General Statutes in relation to proceedings against sheriffs and their' sureties is not to be considered as a new, but as a continuation of the old law, the provision requiring the auditor to give notice to the sheriff and his sureties operating as an amendment to the former law.
75 Ky. 354Rodman v. Musselman (1876)
Case 29 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED Civil Code, sections 474, 246. 5 Iowa, 123, Taylor v. B. & M. R. R. Co. 7 Mon. 439, Divine v. Harvie. 4 Bush, 8. 3 Mete. 309, Roberts v. Drinkard. 10 B. Mon. 109, Speed, &c. v. Brown, &c. 26 Ala., Mayor of Mobile v. Howland. 41 Ala. 508, City, &c. v. Van Dorn. CITED 7 Mass. 289: 4 Howard, 20. 8 Penn. St. 868. 3 Rob. La. 373. 7 Mon. 439. . 1 Root, 551. 3 Saund. 379. 11 Pick. 260. 2 Cranch C. 0. 544.
75 Ky. 358Blincoe v. Lee (1876)
1. A MORTGAGE IS NOT VOID BECAUSE OP A MISRECITAL, in that without fraud it describes the debt as being payable to the mortgagee when he was surety in the debt and the mortgage was intended to indemnify him as such. 2. The mortgage op a growing crop op tobacco which was not subject to execution, in contemplation of insolvency, and with the design to prefer one creditor to the exclusion of others, operates as an assignment and transfer of all his property, etc., to the benefit of all his creditors. 3. Brewer & Orr v. Cosby (8 Bush, 388), holding that the mortgage of a growing crop of tobacco by an insolvent debtor when it was not subject to execution did not operate as an assignment of all the mortgagor’s property, etc., under the statute of March 10, 1856, is overruled.
75 Ky. 359Neeters v. Clements (1876)
Case 31 — PETITION EQUITY APPEAL PROM DAVIESS CIRCUIT COURT. CITED Civil Code, sections 314, 846. CITED Civil Code, section 314. 10 Bush, 274, Davis v. Davis.
75 Ky. 361Hanning v. Bassett (1876)
Case 32 — PETITION ORDINARY APPEAL FROM DAVIESS CIRCUIT COURT. CITED Townshend on Libel and Slander, secs. 95, 107, 324. 2 Bouvier’s Law Die., “ Slander.” 3 Dana, 139, Trabue v. Mays. 3 Albany Law Journal, 232. 6 Ala. 881. 8 Bush, 402, Maddox v. Fox. • 13 Gray, 304. 4 Barb. 272, Thomas v. Austin. 25 N. Y. 266, Wright v. Delafield. CITED 8 Bush, 557. Civil Code, section 148.
75 Ky. 363Nunes v. Wellisch (1876)
1. Innocent purchasers are pavored in a court op equity ; and the chancellor, in a case where a mechanic’s lien is attempted to he enforced against an innocent purchaser, must find some statutory enactment controlling his action before he will undertake to subvert this well-settled doctrine founded on a principle of public policy. 2. Ip one statute repers to another por the power given by the pormer, the statute referred to is to be considered as incorporated in the one making the reference. 3. If a local refers to a general law, and the general law is afterward repealed, such repeal does not operate as a repeal of the local law, so far as it refers to the general law. 4. The mechanic’s lien law in force in the city of Louisville and Jefferson County does not give to a mechanic a lien as against an innocent purchaser without notice, actual or constructive. The mechanic’s lien law in force in the city of Louisville and Jefferson County consists of the act entitled “An act to provide a'mechanic’s lien law for the city of Louisville and county of Jefferson,” approved March 2,1869, and so much of the act of February 17,1858 (Myers’s Supplement, p. 300) as must he considered as part of, or as incorporated in said act of March 2, 1869.
75 Ky. 369Purnell v. Culbertson (1876)
A per capita division is intended by the words “divided equally,” whether the devisees are children and grandchildren, brothers or sisters, nephews or nieces, or strangers in blood to the testator. “Divided equally” between a nephew, two nieces, and two children of another nephew is held in this case to mean and intend an equal division per capita.
75 Ky. 373Foster v. Commonwealth (1876)
Case 35 — INDICTMENT APPEAL EROM NICHOLAS CRIMINAL COURT. CITED Criminal Code, sec. 122. General Statutes, p. 324.
75 Ky. 375Phipps v. Acton (1876)
1. A widow’s temporary absence prom her homestead sefapart to her in her deceased husband’s lands, after having rented the same out and placed her tenants in possession, is not such an abandonment as will forfeit her claim to the homestead under the statute. 2. So long as the widow is in possession of the premises by herself, her agents, or tenants, her right to the homestead will continue. 3. Infants’ rights to the homestead do not depend upon occupancy, hut continue until the youngest unmarried child arrives at full age. 4. A homestead may be sold subject to the right of the widow and children, if a sale is necessary to pay the debts of the husband. (General Statutes, sec. 14, art. 13, chap. 38.)
75 Ky. 378Marshall v. McDaniel (1876)
1. The sufficiency of the conveyances under which a party claims will not be inquired into when he has had actual possession with claim of title for thirty-five years. 2. The continued actual adverse holding- for a period of near thirty-five years perfects the title to land against all the world, unless it he the commonwealth. 3. A PATENT FOR LAND CAN NOT BE TREATED AS VOID on account of any fraud that may have been practiced by the patentee in procuring it. 4. In order to avoid a patent the commonwealth must have it annulled in a direct proceeding. (Jennings v. Whittaker, 4 Mon. 51; Bledsoe’s devisees v. Wells, 4 Bibb, 329.) 5. A junior patentee, by continued actual possession, may become vested with the title of the elder patentee. 6. The failure of claimants of land to list it for taxation, as required by the act of December 19, 1801 (2 Stat. Laws, 1072), did not ipso facto divest them of title and vest it in the commonwealth. 7. An inquest of office found was essential, under the statute of 1801, to make complete and effectual the forfeiture to the commonwealth.. 8. So much of the act of January 12, 1825 (2 Stat. Laws, 1079), as provided that, for a failure to list lands for taxation, the title should be forfeited and should, ipso facto, without inquiry or trial, and without opportunity to the party supposed to be in default, even to manifest his innocence, be vested in the commonwealth, is unconstitutional and void. 9. Lands can not be held to have been forfeited to the commonwealth, and subject to entry under the act of March 2,1860, upon proof that the public records failed to show that they were listed for taxation by the former patentee for certain years while the act of 1825 was in force. 10. The legislature imposes upon the tax-payer the duty of listing his property for taxation, and may prescribe, for the neglect of the duty so imposed, penalties reaching even to forfeiture of the estate not listed. But when such laws are enacted the forfeitures prescribed must be regarded as penalties. 11. Penalties can not be inflicted until inquiry has first been made and the commission of the offense has been ascertained by “ due course of law.” 12. Self-enforcing penal statutes are repugnant to the plainest principles of justice, and are utterly inconsistent with the fundamental maxims of a government in which the judicial power is vested in a department separate from and independent of the lawmaking power. 13. To enjoin what shall be done and what left undone, and to secure obedience to the injunction by prescribing appropriate penalties, belongs exclusively to legislation. To ascertain a violation of such injunction and inflict the penalty, belongs to the judicial functions. (Gaines, &c. v. Buford, 1 Dana, 481.) 14. When it is attempted to forfeit the citizen’s property by way of punishing him for failing or neglecting to perform a public duty, his right to be heard in his own defense does not depend upon the rules of the common law; it is secured to him by the constitution. (Gaines, &e. v. Buford, 1 Dana, 481; Page v. Hardin, 8 B. Mon. 672; Commonwealth v. Jones, 10 Bush, 725; Burk-hart v. McCarty, 10 Bush, 758; Griffin v. Mixon, 38 Miss. 424.)
75 Ky. 386Commonwealth v. Collins (1876)
Case 38 —PETITION EQUITY APPEAL PROM FRANKLIN CIRCUIT COURT. CITED 9 Sim. 327, Hammond v. Messenger. 1 T. & Col. 534, Rose v. Clark. 1 McCord’s Oh. 59, Rees v. Parish. 3 Murph. 273, Bell v. Bemen. 7 Cow. 315, Pitkin v. Pitkin. 7 Gill & John. 114, Adair v. Winchester. 1 Ohio St. 591, Mechanics’ Bank v. Debolt. 3 Atk. 386, Buxton v. Lister. 3 Yes. 420, Lord Walpole v. Lord Oxford. 1 John. Ch. 370, Benedict v. Lynch. 2 Yern. 415, Bromley v. Jeffers. 6 Paige, 288, German v. Machen. 2 Barb. S. C. R. 439, Woodward v. Harris. 8 Barb. S. C. R. 527. Story’s Equity, sec. 140. 1 Md. Ch. 13, Tyson v. Watts. 1 Md. Ch. 345, Beard v. Linthieum. 2 Md. Ch. 401, Duvall v. Myers. 1 S. & S. 210, Ball v. Storie. 1 McLean, 395, Longworth v. Taylor. 2 Wheat. 336, Colson v. Thompson. 4 Rand. 478, Yail v. Nelson. 1 Barb. S. C. R. 114, Wood v. Perry. 4 Har. & MeHen. 252, Simmons v. Hill. 6 Cowan, 13, Fuller v. Hubbard. 7 Cowan, 63, Fuller v. Williams. 21 Penn. (9 Harris) 50, Bodine v. Gladding. 16 Mass. 161, Newcomb v. Brackett. CITED Story’s Equity, secs. 714 to 718, 736. Constitution of Kentucky, art. 2, sec. 40. Sedgwick on Construction, pp. 594r-6, 593. Sedgwick on Damages, side-page 374, 472, 473. Act of March 20, 1871, Session Acts, pp. 101-2. 1 Bouvier’s Law Die., “ Construe.” 4 Wheat. 519, Dartmouth College v. Woodward. 8 Wheat. 1, Green v. Biddle. 2 Duvall, 20, Griswold v. Hepburn. 1 East, 401, Lee v. Lingard. 1 Mason, 117, Pope v. Barnett. 3 Bush, 518, Field v. Burnam. 11 Bush, 74, Collins v. Henderson, &e. 22 Barbour, 404, People v. Brooklyn. 44 Vermont, 356, Kelly v. State Treasurer. 11 Mass. 504, Wood v. Robbins. 11 Bush, 49, Adams Express Co. v. Milton.
75 Ky. 394Jones v. Thompson's ex'r (1876)
Case 39 — APPEALS APPEAL EROM MARSHALL CIRCUIT COURT. CITED Cooley’s Con. Lim. 145, 146. Acts 1873-4, page 15. 2 Met. 543, Coffman, &c. v. Wilson, &e. 10 Bush, 271, Jacobs’s adm’r v. L. & N. R. E. Co. 10 Bush, 528, Hind v. Eice. 11 Texas Eep. 673, Murphy v. Menard. 10 Bush, 232, Johnson’s adm’r v. Lou. City E. Co.
75 Ky. 397Ray v. Commonwealth (1876)
Case 40 — INDICTMENT APPEAL EROM GREENUP CRIMINAL COURT. CITED General Statutes, section 4, article 6, page 326. Wharton’s Amer. Crim. Law, sec. 364. 2 lb., sec. 1585. 1 Met. 13, Thompson v. Commonwealth. 3 Greenleaf’s Ev., sections 74, 75. 9 Bush, 150, Cunningham v. Commonwealth. CITED General Statutes, section 4, article 6, chapter 29.
75 Ky. 399Barret v. Utley (1876)
Case 41 — PETITION ORDINARY APPEAL EROM HENDERSON COMMON PLEAS COURT. CITED General Statutes, section 10, chapter 9. 9 Bacon’s Abr., pp. 473-4, Trespass, e. 2 Kent’s Com., p. 482. 6 Monroe, 338. 1 Hilliard on Torts, pp. 480-81, sec. 19. 2 Greenleaf on Evidence, see. 622. CITED Myers’s Supplement, sec. 3, page 190. 4 Blackstone, page 236. 2 Blackstone, chapter 25.
75 Ky. 401Handley v. Cunningham's trustee (1876)
1. 'Claim against testator may be purged of usurious interest on DEMAND OF ANY ONE OF THE DEVISEES in an action against them to subject devised estate to the payment of a debt of the testator. 2. Notes executed September 1,1871, stipulating for the payment of interest at the rate of ten per centum per annum were not embraced by the conventional interest act of 1871, the 8th section of which provided that “ this act shall take effect and be in force from and after the first day of September, 1871; ” and on such notes interest is adjudged at the rate of six per centum per annum. 3. The rules as to the computation oe time are as follows— When the computation is to be made from an act done, the day in which the act was done must be included; but— When the computation is to be made from the day itself, and not from the act done, then the day in which the act was done must be excluded. When an act provides that it shall take effect and be in force from and after a named day, that day must be excluded from the operation of the act.
75 Ky. 404Brame v. Craig (1876)
' 1. The sale op the homestead by the husband for a valuable consideration is not void, unless Ms wife joins in the conveyance thereof as required to pass her title to other realty. The provision of the homestead statute that “ no mortgage, release, or waiver of such exemption shall he valid unless the same be in writing subscribed by the defendant and his wife, and acknowledged and recorded,” etc., does not impose any restraint upon the genera] right of alienation vested in the owner of real estate by the laws of this state. 2. The homestead exemption is not an estate in the land, but only a privilege of occupying the same by a housekeeper with a family as against his creditors; and although the homestead is not subject to coercive sale by a creditor, a sale and conveyance of the tract of land covered by the homestead privilege, by the owner thereof, is not prohibited by the statute.
75 Ky. 408Talbott's devisees v. Hooser (1876)
1. Fraud and undue inpluence in procuring a conveyance op land, for an inadequate consideration, and mistake in writing and in the execution of the deed, being alleged and not established by proof, the deed is sustained. 2. Inadequacy op price will arouse the suspicions of the chancellor, and induce him to a vigilant scrutiny of the facts and circumstances attending the transaction. But if the chancellor finds no other evidence impeaching its bona fides, he must leave the parties where he finds them. 3. A CLERK OP A COURT ACTS BY HIMSELP OR BY HIS DEPUTY. Whatever official act is done by a deputy should be done in the name of the principal clerk, and not in the name of the deputy. The deputy has the right to sign the name of the principal clerk to the certificate of acknowledgment of a deed. 4. "When a deed is acknowledged bepore a deputy clerk the body of the certificate should be in the usual form and read precisely as if the clerk in proper person had taken and certified the acknowledgment. In this case the acknowledgment was taken at the residence of the grantors in the county by a deputy, who wrote the certificate of acknowledgment in the usual form on the deed, and signed the name of the clerk to it as if the acknowledgment had been taken in the clerk’s office and certified by the clerk in his own proper person. In comparing the record of the deed the deputy changed the record so as to make the certificate show that it was acknowledged at the residence of the grantors in the county, but failed to make a corresponding change in the certificate indorsed.on the deed. Held— The certificate of acknowledgment was not invalid because of the irregularity of the deputy in omitting, after signing his principal’s name, to add “by” himself, “D. C.,” as by the same proof which showed that the clerk did not sign his name it was also shown that it was signed to the certificate by his authorized deputy; and that It was immaterial whether the deed was acknowledged in the office or elsewhere in the county, and it was therefore of no importance, so far as the efficacy of the record of the deed and certificate was involved, whether the certificate was true in that respect or not. 5. A minor’s acts as a deputy cleric are not void simply because he is a minor. There is no statute in this state prescribing the qualifications of a deputy clerk. And the court further say: “It has been the immemorial custom of clerks to appoint minors deputies, and as far as we are advised the legality of such appointments has never been called in question, and we must regard such long-continued acquiescence on the part of the legislature, the bench, and the bar as the very highest possible evidence of its legality.”
75 Ky. 416Louisville City Railway Co. v. Masonic Savings Bank (1876)
1. Bond discharging attachment must be approved by the court unless the court is in vacation. (Civil Code, secs. 242, 243.) 2. Bonds discharging attachments issued by the Louisville Chancery Court must be approved by that court, as section 777 of the Civil Code provides that it shall be deemed to be always open for the transaction of business. 3. A bond taken by the sheriff of Jeffet'son County discharging an attachment issued by the Louisville Chancery Court, and not approved by the court, can not be treated as a statutory bond, and the chancellor has no right to enforce compliance with such a bond by rule and attachment as in cases of contempt as provided in section 254 of the Civil Code.
75 Ky. 419Courtney v. Louisville (1876)
1.When real estate ought and when it ought not to be subJECTED TO TAXATION FOR THE ORDINARY PURPOSES OF A TOWN OR CITY. In order to subject real property within the corporate limits of a town or city to taxation for ordinary purposes, there must be both benefits, actual or presumed, to such property, derived from the municipal government, and a town or city population on or near it, creating a necessity or at least rendering it not unreasonable that the local government should be extended over it. But if, considering the location of the property with respect to actual population, it plainly appears that it is not near enough to require municipal government, and has not been laid out into lots, and could not be profitably so used, it ought not to be subjected to taxation for town or city purposes. 2. Beal estate in Louisville, so situated that it can not be CONSTITUTIONALLY TAXED FOR ORDINARY PURPOSES, Can not be taxed by the city, under the existing laws, for school purposes. But no doubt is entertained that the legislature might (institutionally authorize the city to tax all the property within the corporate limits for school purposes. (City of Henderson v. Lambert, 8 Bush, 607.) 3. Taxes levied by the city of Louisville to meet subscriptions made to the stock of railroad companies are not levied under authority given in the charter of the city, but under the charters of the railroad companies. 4. Under the charter of the Elizabethtown & Paducah Railroad Company all persons and estate within the corporate limits of the city, of Louisville, as established at the date at which the city subscribed for stock of that company, are subject to taxation levied on account of such subscription.
75 Ky. 426Noland v. Noland's adm'r (1876)
Case 47 — PETITION EQUITY APPEAL PROM CLARK CIRCUIT COURT. • CITED 18 B. Mon. 671, Newland v. Gentry. 9 Bush, 666, Lawless v. Barger, &c. 2 Met. 551, Vanhussum v. Maloney. CITED Civil Code, section 579. 4 Dana, 429, Bustard v. Gates. 7 B. Mon. 62, Lampton v. Usher’s heirs. 8 B. Mon. 104, Benningfield v. Eeed. 18 B. Mon. 95, Anderson v. Anderson. 12 B. Mon. 472, Harrison v. Hord. 18 B. Mon. 281, Gossom v. Donaldson.
75 Ky. 428Brown v. McGee (1876)
1. “The issue of customary marriages of negroes shall be held legitimate.” The foregoing proviso of section 2 of “An act in relation to the marriage of negroes and mulattoes,” approved February 14, 1866, is constitutional,. Said act was intended to regulate and legalize the marriage relation that at that time existed between persons of the entire colored race within the state, and to make legitimate the offspring of customary marriages between such persons entered into prior to that time. 2. Customary marriages among negroes were such as originated from cohabitation and the recognition of each other as man and wife. 3. The issue of customary marriages between negroes shall be held legitimate,, although the parents were not both living, or were not living together as man and wife at the time of the passage of the act of February 14, 1866; or, if then living together, although they failed to legalize their marriage in the mode prescribed in said act. 4. When one of the parties to sueh customary marriages died before the passage of the act of February 14, 1866, the issue of such marriage shall be held legitimate and the lawful heirs of the survivor. Jeff. McGee married Becky prior to 1833 in accordance with the custom among slaves. Becky died in 1838. Jeff, married a second wife and died intestate in 1872, leaving considerable estate, leaving one child the issue of the first, and six children the issue of the second marriage surviving him. The child of the first marriage is held to he legitimate and entitled to one seventh part of the estate of her father.
75 Ky. 434Radford v. Southern Mutual Life Ins. (1876)
Case 49 — PETITION EQUITY APPEAL PROM HENRY CIRCUIT COURT. CITED General Statutes, secs. 1, 4, 5, art. 2, chap. 60. Session Acts 1865-6, sec. 21, page 345. 2 B. Mon. 335, Rodes v. Blythe, &c. 9 Dana, 331, Talliaferro’s ex’r v. King’s adm’r 12 Bush, 57, Newell v. National Bank, Somerset. CITED Hammond, 384, Scott v, Saffold. Cam. & Nor. 357, Kenner v. Dickens. 2 Mar. 339, Breckinridge v. Brooks. 2 Disney, 398, Dunlap v. Wiseman. 3 Hammond, 18, Forbes v. Chatfield. 2 U. S. Equity Digest, page 645. 3 McLean, 472, Hollingsworth v. City of Detroit. 2 B. Mon. 335. 9 Dana, 331. 2 Atkyns, 330. 1 R. Island, 298, Sessions v, Richmond. 5 Texas, 171, Andrews v. Hoxie. 3 Wis. 443, Tallman v. Truesdell. 9 Iowa, 327, Mann v. Cross. 1 Caldwell, 288, Hale v. Hale. 3 Rob. 308, Harwood v. Farley. 6 Paige, 98, Mowry v. Bishop. 7 Wallace, 82, Aurora City v. West. 17 Ohio, 22, Aukatel v. Converse. 23 Vermont, 286, Austin v. Imut. 23 Conn. 592, Hill v. Meeker. 37 Maine (2 Heath), 308, Farwell v. Sturdevant. 20 Wisconsin, 50, Mills v. Jefferson. 10 Rich. Eq. —, Wright v. Eaves. 16 Ind. 160, Grimes v. Blake. 31 Illinois, 529, Pekin v. Reynolds. 13 Mich. 303, Hasan v. Kanouse. 29 Cal. 385, Doe v. Vallego. 10 Allen, 32, Quimby v. Cook. 24 Metcalf, 62, Bank v. McClellan.
75 Ky. 438Williams v. City of Newport (1876)
1. An OFFICE CREATED BY A CITY COUNCIL MAY BP ABOLISHED BY IT. The chief of the fire department of the city of Newport was an officer of the city, elected by the council for a term of two years, subject to the right of the council to abolish the office at any time during the term. The election of the chief was not a contract between him and the city, nor was it obligatory on him to serve the two years. 2. Although an officer may he elected, or appointed for a fixed pei'iod, yet when he is not bound and can nót be compelled to serve for the whole time, such election or appointment can not be considered a contract to hire for a stipulated term. (Dillon on Corporations, p. 204.)
75 Ky. 441Mueller v. Engeln (1876)
Case 51 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. CITED 6 Greenleaf’s Rep. 158, Parrar v. Stackpole. 4Met. 361, Johnson v. Wiseman. 2 Watts & Serg. 118, Voorhies v. Freeman. 2 Smith’s Leading Oases, pp. 268, 269. 4 Met. (Mass.) 306, Winslow v. Insurance Oo. 5 Munford, 539, Williams v. Price. 9 Barb. 630, Dunning v. Stearns. 7 Oal. 264, Hewitt v. Flint. 4 Littell, 319, Johnston v. Gwathmey. 6 B. Mon. 73, Honoré v. Bakewell. 6 B. Mon. 74, Thornton v. Knox. 7 B. Mon. 117, Woodward v. Woodward. 4 Ohio Rep. 458, Reeder v. Barr. 23 Ohio St. 114, Metcalfe v. Fosdick. 28 New York, 180, Martin v. Cope. 28 Pa. St. 278, Christian v. Drips. 40 Maine, 310, Blethen v. Towle. 38 Maine, 28, Sawyer v. Fisher. 15 Peters, 112, Brush v. Ware. CITED Story on Eq. Juris., section 404. Walker (Mich.), Ch. R. 183, Wing v. McDowell. Hare & Wallace, Notes to Le Neve v. Le Neve, 2 Lead. Ca. in Eq., 3d ed., 152, 168. Sugden on Vend. 755 (Ed. of 1873.) Story, Eq. J., section 398. 4 Ind. 283, Read v. Coale. 2 Ind. 445, Brown v. Budd. 5 Mich. 517, Dutton v. Ives. 4 Littell, 168, Bank of Kentucky v. Vance. 4 J. J. Mar. 558, Halstead v. The Bank of Kentucky. 1 Strobh. Eq. R. (S. C.), 400, Villard v. Roberts. 3 Cranch (U. S. S. C.), 155, Hodgson V. Butts. 8 Ark. 252, Barrett v. Mason. 9 Barb. 633, Dunning v. Stearns. 2 Stew. & Port. (Ala.), 82, Baker v. Washington. 8 Dana, 82, Averill v. Guthrie. 2 Watts, 75, Kerns v. Swope. 5 Leigh (Va.), 677, French v. The Loyal Co. 4 Mass. 637, Farnsworth v. Childs. 4 Litt. 318, Johnston v. Gwathmey. 1 Cha. Ca. 257, Tanner v. Florence. 1 Cha. Ca. 287, Bisco v. Earl of Banbury. 1 A. K. M. 120, Graves v. Graves. 1 A. K. M. 58, Cotton v. Hart. 4 Met. 192, Willis v. Vallette. 1 Hare, 43 S. C., 1 Phil. Jones v. Smith. 3 Vermont, 425, Tobias v. Francis. 3 Mason, 459, Powell v. Monso Co. 9 Cow. 63, Swift v. Thompson. 1 McCook, 511, Teaff v. Hewitt. 10Barb. 157, Vanderpoel v. Van Allen. 20 N. Y. 344, Ford v. Cobb. ' 18 Pick. 361, Pitcher v. Barrows. 26 Wend. 473, McFarland v. Wheeler. 32 Maine, 28, Sawyer v. Fisher. 34 Ga. 369, Freeman v. Bass. 13 Peters (S. C. IJ. S.), 423, Anthony v. Butler. 14 B. M. 224, -Tiernan v. Thurman. 17 B. M. 684, Gault v. Trumbo. 46 N. Y. 384, Acer v. Westcott. 21 Beavan, 431, De Bright’s Trust. 10 B. M. 187, Bussell v. Petree. 14 Mass. 352, Gale v. Ward. 11 Yt. 438, Sturgis v. Warren. 35 Vt. 317, Sweetzer v. Jones. 18 N. Y. 28, Murdock v. Gifford. 17 John. 117, Cresson v. Stout.
75 Ky. 445Eaves's ex'r v. Harbin (1876)
1. The plaintipe was made a competent witness in this action against A deceased person, under subsection 4, section 25, chapter 37, General Statutes. On the trial of this action on a note, against the principal and one surety and the administrator of another surety in the note, by agreement of the parties an affidavit was read as the deposition of the principal, proving, in effect, that after the maturity of the note he had paid to the plaintiff, in semi-annual installments, a greater rate of interest than that stipulated in the note, and that in consideration thereof the plaintiff had extended the time of the payment of the note two years. By this evidence of the principal the plaintiff was made a competent witness in his own behalf. 2. A REEUSAL TO TRANSEER TO EQUITY IS NOT ERRONEOUS when the issue of fact raised by the answer could be as well investigated and determined in an ordinary as in an equitable action.
75 Ky. 448Smith v. Bohon (1876)
1. Where an action must be brought to enforce the satisfaction OF A JUDGMENT. When a suit under section 474 of the Civil Code is brought in the county where the judgment sought to be enforced was rendered, it must he brought in the court from which the execution returned nulla bona was issued; but if brought in any other county, it may be brought in any court of such county having jurisdiction of the amount. 2. In PROCEEDINGS BY RULE FOR THE RESTITUTION OF MONEY paid in pursuance of a judgment which has been reversed because the court had no jurisdiction of the subject-matter, the enforcement of the rule can not be resisted on equitable grounds. (Morgan v. Hart, 9 B. Mon. 80.) But when the rule has been made absolute, and a judgment for money has been rendered against the defendant in the rule, that judgment stands just as any other judgment between the same parties, and is unaffected by the peculiar facts out of which it originated. 3. A JUDGMENT IN THE QUARTERLY COURT MAY BE SET OFF against a judgment in the circuit court in an action by equitable proceedings in the latter court, as provided in section 407 of the Civil Code.
75 Ky. 451Pittsburgh, Cincinnati & St. Louis Railroad v. Woolley (1876)
Case 55 — PETITION EQUITY APPEAL EROM LOUISVILLE CHANCERY COURT. CITED . 9 Johns. 142, Hotchkiss v. LeRoy. 3 Barb. 64, Brighart v. Gardner. 4 E. D. Smith, 253, Cook v. Ritter. 2 Met. 244, Savings Bank of Oin. v. Benton. 26 111. 218, Chicago, &c. R. R. v. Lamed. 22 La. Ann. 85, Voorhies v. Harrison. CITED • 2 Parsons on Contracts, page 522. 4 Harrington, 454, Draper v. Randolph. 2 Duvall, 490. 12 Vermont, 50. 2 Heiskel, 367, Planters’ Bank of Tenn. v. Massey. 38 111. 84, Morgan v. Roberts. 9 Cowen, 57. 30 Texas, 55, Ector v. Wiggins.
75 Ky. 455Turnbow v. Broach (1876)
1. A EIRM DEBT WAS NOT MERGED IN THIS CASE. After dissolution one partner executed a new note in the firm name for the balance due on an old note of the firm. The old note was surrendered and the new accepted by the creditor as the note of the firm. This did not merge the debt of the firm into a demand against the partner who executed the new note. 2. Although the other partner was not bound by the new note, he was still bound for the original debt. 3. A PARTNER WHO HAS PLEADED NON EST EACTUM to a note executed in the firm name by his co-partner without authority, for a firm debt, is thereby estopped, when sued on the original demand, from relying upon the execution of the new note as a merger of the original debt. (Doniphan, &c. v. Gill, 1 B. Mon. 199.)
75 Ky. 459Campbell v. Galbreath (1876)
1. A married woman may sue alone when her action concerns her separate property. (Civil Code, sec. 49.) 2. Contracts between husband and wipe are void at common law, but the rule is otherwise in equity. 3. For many purposes equity treats husband and wife as distinct persons, capable of contracting with each other, and their contracts will sometimes be enforced even against the creditors of the husband. 4. A MARRIED WOMAN IS INCAPABLE OP RECEIVING AND HOLDING THE legal title to personal property, but if the property be expressed to be for her separate use, and the gift or sale be to her without the intervention of a trustee, the legal title will vest in the husband, who will be converted by the law into a trustee for the wife, and the beneficial use will vest in her. 5. But if the sale or gift be by the husband direetly to the wife, the legal title will remain in him, and the beneficial use will vest in her as her separate estate, and the husband will be treated as her trustee. 6. What the law will compel parties to do they may do voluntarily. (Bishop on Law of Married Women, sec. 726.) 7. The hmband, may voluntarily make such a settlement upon his wife as a court would order out of choses in action coming to her, or out of any other fund out of which the court could compel a settlement by proper proceedings. 8. A HUSBAND MAY BORROW money proM his wipe and secure the payment thereof by executing a mortgage to her. 9. The eppect op an assignment, by the husband, op a note payable to his wipe will depend upon the intention of the husband in making, and of the wife in consenting or permitting him to make the assignment. Whether the assignment by the husband of a note payable to his wife operated to reduce its proceeds to his possession, and— Whether a mortgage executed by the husband to his wife to secure to her the proceeds of the note so assigned by him operated as a valid settlement by him upon her depends upon facts and circumstances which are fully set forth in the opinion of the court in this case. 10. In an action on a bond or indemnity the petition was fatally defective, in that it contained no statement of the covenants in the bond or of any breaches thereof.
75 Ky. 465Taylor v. Howser (1876)
1. “A NEW TRIAL SHALL NOT BE GRANTED ON ACCOUNT OE THE SMALLNESS oe the damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.” (Civil Oode, sec. 870.) This rule does not apply to the assessment of the actual pecuniary damages resulting directly from the wrong. Such damages can be measured. 2. When a new trial ought to be granted in an action for an injury to the person— When the action of the jury is such as to demonstrate that as to the damages the proof was disregarded, and the law of the case, as embodied in the instructions of the court, disobeyed, then a new trial may and ought to be granted. In this case the court properly instructed the jury “that if they believed the shooting to be without justification or excuse they should give to the plaintiff, in the way of damages, the value of his services during the time he was disabled by his wounds, and the amount he reasonably expended for medicine and medical attention in effecting his cure.” As to the matters of special damages the proof was clear, consistent, and conclusive. By finding one cent in damages the jury disregarded the proof and disobeyed the positive and peremptory instruction of the court. The judgment of the court below overruling a motion for a new trial is reversed. 3. Effect of denial of threats as to reasonable belief of danger, etc. When a person has not been assaulted, and no demonstrations looking to an assault are being made, and when the other party to the pending affray is actually protesting that he has made no threats against him, it is misleading to intimate to the jury that he still may entertain a reasonable belief that he is then in danger of death or great bodily harm.
75 Ky. 469Fraley v. Peters (1876)
Case 59 — PETITION EQUITY APPEAL PROM LAWRENCE CIRCUIT COURT.
75 Ky. 474Dolfinger & Co. v. Fishback (1876)
1. Whether there was negligence in a given case is compounded of law and fact. 2. Questions of fact are eor the jury; questions of law for the COURT.— When all the facts essential to the plaintiff’s case 'are agreed, or established by uncontradicted evidence, nothing remains but for the court to decide whether there was negligence. Where there is no room, for honest difference among intelligent men. as to whether the conduct of the defendant was that of an ordinarily prudent man, in view of all the facts and circumstances surrounding him, the question may be decided by the court as one of law. jBut unless all the essential facts are agreed, or proved without contradiction, the court can not decide whether there was negligence or not. Where, although the facts are undisputed, the court is unable to say that there is no room for honest difference oí opinion as to the conduct of an ordinarily prudent man under the circumstances, but that' question is to be decided upon inferences to be drawn from the facts already established, those inferences must be drawn by the jury, unless they are certain and incontrovertible. 3. Degree oe care in handling A horse. — It is the legal duty of every person having charge of a horse in city or country, to apportion the care with which he handles him to the danger to be apprehended from a failure to keep him constantly under control. (Wharton on Negligence, section 47.) 4. The amount oe care which the law demands is dependent upon the circumstances with which the defendant was surrounded, and as there is no fixed standard by which to measure the demands of the law in such a case, resort must be had to the common standard — a man of ordinary prudence. 5. A city ordinance prohibiting a driver from leaving his team standing in a street was incompetent evidence in behalf of the plaintiff in an action against the owner of the team to recover damages for injuries sustained by the plaintiff in consequence of alleged negligence of the driver in leaving the team standing in the street in violation of such ordinance. But a city vrdinance prohibiting the hitching of animals to shade-trees on the streets was made competent evidence in behalf of the defendant by the plaintiff proving that there were shade-trees in the street close by where the team was left. The general council of a city has no general power of legislation. It has power to pass ordinances and to enforce them as mere police regulations, but further than that it has no power. ,
75 Ky. 485Johnson v. Johnson (1877)
Case 1 — PETITION EQUITY APPEAL PROM LOUISVILLE CHANCERY COURT. 1. S. 4, A. 3, C. 52, G. S., provides “that an action for divorce must be brought in the county where the wife usually resides, if she has an actual residence in the state,” etc. 2. That in this case the residence of the husband was the residence of the wife at the time of the institution of this action (Allen v. Allen, MS. Opinion, Sept. 25, 1867), and that this question must be tried as of that date. 3.
75 Ky. 491Schmelz v. Giles (1877)
Case 2 — PETITION EQUITY APPEAL EROM LOUISVILLE CHANCERY COURT The statute on which the assessment is based is the act to amend the charter of the city of Louisville, approved Feb. 20, 1873: “That in lieu of section 12 of the charter, approved 3d of March, 1870, . . . the following law shall prevail concerning public ways.” Hence the only statutory provision regulating the assessment for the construction of public ways in Louisville is the second section of the same act,…
75 Ky. 496Spradlin v. Pieratt (1877)
Case 3 — PETITION EQUITY APPEAL PROM MORGAN CIRCUIT COURT. The sheriff has no legal power, after a levy and sale under execution and the taking of sale-bond for the sum bid, and the return of the same to the clerk’s office, and after the return has been recorded by the clerk, to withdraw the sale-bond and accept others in lieu thereof. Such bonds can not support an execution.
75 Ky. 498Lightfoot v. Wallis (1877)
Case 4 — PETITION EQUITY APPEAL EROM WARREN CIRCUIT COURT. The execution of the note and mortgage was afterward ratified by appellee by making a payment on the note and promising frequently to make other payments, without raising any question of fraud or “ forced mortgage.” The bare fact that appellee executed the mortgage does not preclude him from asking relief.
75 Ky. 503Fleming v. Jones (1877)
Case 5 — PETITION ORDINARY APPEAL FROM BATH COMMON PLEAS COURT. 1. Under the will the administrator was not bound to collect the assets of the estate further than was sufficient to pay testator’s debts, as the estate was all given to the widow during her life. The notes belonged to her, less the distributive share due to the obligors in the notes for which the administrator is sought to be made liable. 2. The court below erred in not requiring the legatees to whom the money was adjudged to execute a refunding-bond before rendering judgment against appellant. (Sec. 8, art. 1, chap. 39, G. S., p. 442; Civil Code, sec. 471; Mountjoy v. Pearce, 4 Met. 97; 4 Bibb, 266; 3 J. J. Mar. 684; Neeley’s adm’r v. Neeley’s heirs, 1 Littell, 294; Carrol, &e. v. Connet, 2 J. J. Mar. 202; Munsell, adm’r v. Bartlett, 6 J. J. Mar. 20; Thompson, ex’r v. Saunders, 6 J. J. Mar. 99; Blackerby v. Holton, &c., 5 Dana, 523; sec. 8, art. 1, chap. 37, R. S., 1 Stant. 499; New Civil Code, sec. 435.) The obligors in the note for which appellant was charged were solvent. This debt was lost because the administrator used no diligence to collect it, and therefore he was properly charged with its amount.
75 Ky. 505Bell v. Weatherford (1877)
Case 6 — PETITION EQUITY APPEAL FROM LINCOLN CIRCUIT COURT. 1. An action to recover possession of land under the Civil Code is a substitute for the action of ejectment, and the indispensable requisites to enable the plaintiff to recover are not dispensed with. 2. An execution sale and sheriff’s conveyance of land divest the execution defendant, and vest the purchaser with the legal title. 3.
75 Ky. 510Grider v. Eubanks (1877)
Case 7 — PETITION EQUITY APPEAL FROM WARREN CIRCUIT COURT. 1. The devise to appellant by her husband of his whole estate was of no value to her, as the whole estate was consumed in the payment of his debts. • 2. A deed containing no words of grant or release on the part of the wife is wholly insufficient as to her. (Hatcher and wife v. Andrews, &c., 5 Bush, 561; 1 Wash, on Real Property, 231.) 3.
75 Ky. 515Farra v. Adams (1877)
Case 8 — PETITION EQUITY APPEAL KROM GARRARD CIRCUIT COURT. 1. The creditors of the testator had a, prior lien on the land devised to his two sons. 2. The pecuniary devise to the daughter required to be paid by the two sons was a charge on the land devised to them. (4 Kent, 540; Phillips’s ex’rs v. Stites, 2 Duvall, 313.) This rule applies when the executor is the devisee. (2 Jarman on Wills, 525-6.) 3.
75 Ky. 524Watson v. Christian (1877)
Oases 9 and 10 — PETITIONS EQUITY APPEALS FROM FAYETTE COMMON PLEAS COURT. 1. He who accepts a benefit under a will must adopt its whole contents, conforming to all its provisions and renouncing every right inconsistent with it. (1 Jarman on Wills, page 378; 1 Bishop on the law of Married Women, page 400; 2 Story’s Equity, page 491.) 2. A widow under misapprehension of her rights will not be held to have made a conclusive election.
75 Ky. 531Aulick v. Wallace (1877)
Case 11 — PETITION EQUITY APPEAL PROM PENDLETON CIRCUIT COURT. 1. The intention of the testator is the prevailing consideration in applying all rules of construction, and the general intent of the testator must prevail over a special intent when it is impracticable to give effect to both.
75 Ky. 538Trustees of Eminence v. Deposit Bank (1877)
Case 12 — AGREED CASE appeal prom henry circuit court. 1. To make provision for paying the interest and principal of the bonds issued by the town of Eminence to pay for stock subscribed in the C. & O. R. R. Co., the town was authorized by the charter of the company to levy and collect a tax upon the taxable property “listed and taxed, under the revenue laws” of the state, and therefore the town had authority to tax the capital stock of appellee. 2.
75 Ky. 541Perry v. Wheeler (1877)
Case 13 — PETITION EQUITY APPEAL PROM CHRISTIAN CIRCUIT COURT. 1. The letter containing the proceedings of appellees, and their action in fixing appellant’s salary, constitutes a valid contract between the parties. 1st, That appellant should be their rector permanently; 2d, That he should receive $600 a year, and the free use of the rectory and grounds. 2. The proceedings of the “board of reference” were illegal and void, though confirmed and ratified by the bishop.
75 Ky. 558Revill's heirs v. Claxon's heirs (1877)
Case 14 — PETITION ORDINARY APPEAL PROM OWEN CIRCUIT COURT 1. The infant children of Catharine Revill were not made parties to the suit in which the land was sold, and therefore they are not bound by the sale. 2. The. court had no jurisdiction to order the sale, because the commissioners appointed to do so did not report the net value of the real or personal estate of the infants nor the annual profits.
75 Ky. 564Jett v. Rogers (1877)
Case 15 — PETITION EQUITY APPEAL PROM PRANKLIN CIRCUIT COURT. The acknowledgment of the mortgage by the married woman in this case was effectual both as to her dower and her husband’s homestead right. (Hughes & Co. v. Coleman, 10 Bush, 246; Talbott’s devisees v. Hooser, 12 Bush, 408; Moorman v. Board, 11 Bush, 135.) 1.
75 Ky. 570Preston v. Roberts (1877)
Case 16 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Authority to certify public records is statutory, not prescriptive. The legislature, but no agent, can designate the property to be taxed. The executive, not the legislature, is the keeper of the statutes.
75 Ky. 592Barret v. Godshaw (1877)
Cases 17-29 — PETITION EQUITY . APPEALS EROM LOUISVILLE CHANCERY COURT. 1. The papers filed with appellee’s petition are not certified so as to make them legal evidence. There is nothing in the charter of the city of Louisville indicating what shall be deemed an “ official copy,” or how an “official copy” of the records and official proceedings of the city council shall be certified. We must therefore look to the general law to ascertain the controlling rule.
75 Ky. 608Douglass v. Cline (1876)
Case 30 — PETITION EQUITY APPEAL FROM LOUISVILLE CHANCERY COURT. The appellants, Douglass and Green, as trustees, instituted actions in the Louisville Chancery Court to foreclose the mortgages executed to them by the Louisville, Cincinnati & Lexington Railroad Company, and on their motion the railroad and property belonging to the company were placed under the control and management of a receiver.
75 Ky. 673Newport & Cincinnati Bridge Co. v. Douglass (1877)
Cases 31-54 — PETITIONS EQUITY APPEALS PROM LOUISVILLE CHANCERY COURT. Action to foreclose railroad company mortgages. July 25, 1874, George L. Douglass, trustee, etc., filed a petition in the Louisville Chancery Court against the Louisville, Cincinnati & Lexington Railroad Company; Joseph Patterson, James 0. Harrison, and Augustus F. Hawkins, trustees; Norvin Green, trustee; Abram D. Hunt, trustee; the President, Directors, and Company of the Bank of Louisville; the German Bank, and the Masonic Bank of Louisville, to foreclose the mortgage executed April 1, 1870, by said railroad company to said Douglass, trustee, etc. By amended petition alleging the death of James Guthrie, Virgil McKnight, and Joshua B. Bowles, trustees named in one of the mortgages, and that Bowles survived the other two, the heirs of Bowles were made defendants. It was also therein alleged that Susan P. Lees was the sole devisee of James Lees, deceased, the trustee in one of the mortgages executed by the railroad company, and that she was a nonresident. On motion of the mortgagees, Douglass and Green, the railroads and the property of the railroad company were placed under the control and management of a receiver appointed by the court. The employees of the railroad company asserted their right to be paid the wages due them at the time the railroads, etc., were placed in the hands of the receiver, to be paid out of the fund accumulated in his hands from the net earnings. The judgment of the Vice-Chan, ordering the “back pay” due the employees to be paid out of that fund was affirmed in Douglass, &c. v. Cline, &c., ante, p. 608. At its commencement, and during the progress of the suit, the following classes of lien and non-lien creditors were made parties, and in the final judgment were adjudged to have priorities in the proceeds of the mortgaged property, including the fund accumulated in the hands of the receiver after paying the back pay to the employees, etc., in the following order: First. Taxes due the state as to the entire property. Second. Taxes due the city of Louisville as to the property within the city. Third. The several mortgagees as to the property embraced in each mortgage respectively, in the order in which they were executed. Fourth. Judgment creditors who had instituted proceedings to enforce satisfaction of their judgments on returns of “no property,” as provided in section 474 of the Civil Code, and by attachments levied upon the property, rights, and franchises of the company, and by garnishnients served upon the officers of the company prior to the commencement of the foreclosure suit and prior to the appointment of the receiver. Fifth. Judgment creditors, as in the fourth class, who sued out and caused their attachments and garnishments to be levied and served after the railroads and property of the company had been placed in the hands of the receiver. Sixth. Judgment and non-judgment creditors who sued out attachments and sought to attach the funds accumulated in the hands of the receiver from the net earnings of the road, by causing their attachments to be served on the receiver, etc. Seventh. Creditors who claimed to have equities superior to those of the mortgagees and all others, by virtue of the peculiar nature of their claims. The third class as above stated embraces the following: 1. The deed of trust to Harrison & Hawkins, executed May 29,1854, under act of February 11, 1854, by the Lexington & Frankfort Railroad Company, conveyed the property “now held or hereafter to be acquired” by the company, to secure the payment of $130,000 of coupon bonds, $25,000 of which remained unpaid, and for which judgment was rendered with interest and costs; for $1,000 as a compensation for their services as trustees; and also for $1,000 for the expense incurred by the employment of an attorney in this case, to be paid over to him. 2. The mortgage to the city of Louisville, executed November 20, 1854, by the Louisville & Frankfort Railroad Company, conveyed the property of the company “now in use or which may hereafter be acquired” by the company, to secure the payment of $275,000 of coupon bonds, $100,000 of which maturing in 1881 remained unpaid, on account whereof, and unpaid interest thereon, judgment was rendered for various sums amounting to $114,070. 3. The mortgage to James Guthrie, Virgil McKnight, and Joshua B. Bowles as trustees, executed March 12, 1857, by the Louisville & Frankfort Railroad Company, conveyed the property owned, “or which may hereafter be acquired,” to secure certain bonds of the company, on account whereof, and unpaid interest thereon, judgment was rendered for $38,110, with interest and costs, and also for $1,500 as compensation to Joseph Patterson, who represented himself and other beneficiaries, to be paid to the attorneys employed by him for services in this suit. 4. The deed of trust to Norvin Green, executed January 1, 1867, under act of February 2, 1866, by the Louisville & Frankfort Railroad Company and the Lexington & Frankfort Railroad Company, conveyed the railroad “ and all other properties, rights, and franchises now held and hereafter to be acquired” by each of said companies respectively, to secure $3,000,000 of the joint bonds of the two companies and interest thereon, on account whereof, and unpaid interest thereon, judgment was ( rendered for various sums amounting to $3,615,195 and costs, and also' for $5,000 for compensation to the trustee, and also for $5,000 additional compensation to he paid to the attorneys employed by him for services in this case. 5. The mortgage to George L. Douglass, trustee, executed April 1, 1870, under acts of February 9 and March 21, 1870, by the Louisville, Cincinnati & Lexington Bailroad Company, conveyed the railroad from Louisville to Lexington and from the junction near Lagrange to the Cincinnati & Newport Bridge over the Ohio Biver at Newport, Ky., and all the property “ now on hand or acquired hereafter, and generally the property and franchises” of the company, to secure $1,000,000 of thirty-year coupon bonds of the company, on account whereof, and unpaid interest, judgment was rendered for various sums amounting to $1,200,840, with interest and costs, and for $500 as compensation to the trustee, and also for $2,000 additional to be paid to the attorney employed by him for services in this case. 6. The mortgage to Abram D. Hunt, executed October 1,1872, under act of March 27, 1872, by the Louisville, Cincinnati & Lexington Bail-road Company after it had made the contract for the purchase of the Shelby Bailroad, conveyed the “ Shelby Bailroad, leading from Anchorage to Shelby ville,” and all the other roads and property and “ rights and franchises” of the company, to secure $725,000 Shelby cut-off bonds at thirty years, with interest coupons of the company; and on account of such of these bonds as were disposed of by the company, and unpaid interest thereon, judgment was rendered for various sums amounting to $440,040, with interest and costs. 7. The consolidated mortgage or deed of trust to James Lees, trustee, executed April 1,1873, under act of January 28, 1873, by the Louisville, Cincinnati & Lexington Bailroad Company, conveyed all the railways and property owned by the company, “ and also all the tolls, income, rents, issues, and profits, and alienable franchises” of the company, to secure $10,000,000 of coupon thirty-year bonds which the company proposed to issue and dispose of, to take up all previous bonds and extend the road; but which scheme was not carried into effect. On account of bonds issued under this mortgage and unpaid interest thereon judgment, in favor of Gavin H. Cochran, for himself and as representative for parties holding bonds and coupons, was rendered for various sums amounting to $1,718,475 and interest and costs; and also for $5,000 as compensation to said Cochran, to be paid to the attorney employed by him for services in this case. The Louisville & Frankfort Bailroad Company, incorporated by act of March 1, 1847, owned the railroad, etc., from Louisville to Frankfort. The Lexington & Frankfort Bailroad Company, incorporated by the act of February 28, 1848, owned the railroad, etc., from Lexington to Frankfort. These two railroads were managed and operated as one road from July 30, 1859, until the two companies were consolidated, and while they were so being operated and managed the two companies under act of February 2, 1866, jointly constructed and owned the branch road from the junction near Lagrange to the bridge over the Ohio River at Newport. The two companies were consolidated under act of March 2, 1869, as the Louisville, Cincinnati & Lexington Railroad Company. It was adjudged by the chancery court that the mortgagees, in the order of their priorities, were entitled to the fund accumulated and to be accumulated in the hands of the receiver, and that the attaching creditors acquired no lien on that fund by virtue of their attachments. The various questions raised by the several appellants or classes of appellants are set forth in the points presented in the legal propositions presented by their respective counsel and in the opinion of the court. First. This court, in Douglass, &e. v. Cline, &c. (12 Bush, 608), intended to establish principles or to vindicate principles which already existed; and in pursuance of those principles the claims of Cline and other operatives were awarded them as a lawful right, and not as a charity. Second. The claims of these appellants upon the funds in the hands of the receiver are analogous to the claims of Cline, &c. Third. The bridge from Newport to Cincinnati was indispensably necessary to the performance of the public duties of the L., C. & L. Railroad Company. Fourth. The receipts of a line of railroad are always a trust-fund, not only in the hands of a receiver, but in the hands of the owners themselves. (Gratz v. Redd, 4 B. Mon. 191; Dudley v. Price’s adm’r, 10 B. Mon. 85; Price v. Emery, 32 N. Hamp.) If this fund is a trust, there are other cestuis que trust besides the mortgagees. Such being the case, all persons directly contributing to the necessary and proper operations of the road have an interest as beneficiaries “in or to the principal subject out of which those rents or profits arise,” and a receiver appointed, no matter at whose instance, is also for their benefit, and they thereby acquire a lien upon rents and profits which may come to the hands of the receiver. (Beverly v. Brooks, 4 Grattan; Gratz v. Redd, 4 B. Mon. 191; Dudley v. Price’s adm’r, 10 B. Mon. 85; Lexington & Ohio Railroad v. Applegate, 8 Dana, 295; Price v. Emery, 32 N. Hamp.; the Farmers’ Loan and Trust Company v. Hendrickson, 25 Barb. 484.) In the circumstances of their origin, and in their powers, uses, and duties, railroad corporations are clearly distinguishable from other merely private corporations. (Railroad Commissioners v. P. & O. 0. Railroad Co., 63 Maine, 269.) The Kentucky cases cited make it plain as to how the public trusts of a railroad company shall be executed — -first, by furnishing traveling • and shipping facilities to the public; and, second (to enable them to do the first), by paying, from any and all funds, the men and the companies without whose assistance this duty could not be done; third, by paying and keeping down the interest out of the profits, not the gross receipts (Gratz v. Redd, 4 B. Mon. 191); fourth, by paying dividends judiciously. The receiver in this case is not the contract-receiver provided for in the mortgages; he is a general receiver appointed for all proper purposes, and stands in loeo of the directors. (63 Maine, 269; Messenger v. Pennsylvania Railroad Co., 7 Vroom. 406.) Fifth. It was the duty of the L., C. & L. Railroad Co. to have made the contract with the N. & C. Bridge Co., and to have paid for the privilege of using the bridge. Public policy is opposed to any infringement of the rights of travel, or of any of the facilities which competition may furnish. (Hartford & New Haven Railroad Co. v. N. Y. & N. H. Railroad Co., 3 Rob. 411; Brice’s Ultra Vires, p. 342.) Sixth. The trustee under the Douglass mortgage has his alternative relief, either to have a sale or a sequestration — not both. But it is one of the conditions precedent to either relief that he shall have been requested, in writing, by “the holders of a majority of the bonds herein secured.” This written request is neither proven nor alleged. Douglass can not maintain his action for the sale of the road to pay the principal of his bonds, because the precipitation clause of his mortgage is unlawful. (Green’s Brice’s Ultra Vires, page 610.) As to this provision the mortgage is void — not authorized by the act of Feb.-8, 1870, or the act of March 21, 1870, to amend the charter of the company. Green’s mortgage is in the same condition as that to Douglass. (Act of Feb. 22, 1866, sec. 2.) Under Hunt’s mortgage “the written request of the holders of a majority of the said bonds” is requisite before he can take possession or foreclose by suit. (Act of March 27, j.872.) The word “franchises ” in Lees’s mortgage, executed under the .act of- Jan. 23, 1873 — in “ all the tolls, income, rents, issues, and profits, and alienable franchises” — does not include money, although it may possibly include the right to earn money. An unrestricted power to pledge the income of a road, if embodied in the charter, would not authorize the company to hamper and trammel itself by pledging more than the profits or excess above expenses. (Green’s Brice’s Ultra Vires, p. 131; Karnes v. Rochester & Genesee Valley Railroad Co., 4 Abbott’s Pr. Rep., 1ST. S.; 4 B. Mon. 184.) Seventh. The trustee holding the naked legal title is the mere repository of a dry trust, until a forfeiture by the trustee of the possession and management. Then his trust becomes an active one, and, if he takes possession, the former divided trust becomes united in him by the consolidation of the legal title and the possession in him as sole trustee. He is not only the active trustee for the bondholders, but for the stockholders also. Eighth. An individual contracting in his own right can not make a valid stipulation to pay for suing himself. ' Still less can the directors of a corporation. (Thomasson v. Townsend, 10 Bush, 114.) Ninth. The contract for the use of the bridge with the N. & C. Bridge Co. is, in effect, a perpetual lease, and should be sold as appurtenant to the road, the purchaser to assume the obligations of this perpetual contract. (The Philadelphia & Erie Railroad Co. v. the Catawissa Railroad Co., 53 Pa. 20; Winslow v. Covington & Lexington Railroad Co., Fayette Circuit Ct., 1859; Gov. & Lex. R. R. Co. v. Bowler’s heirs, &c., 9 Bush, 476.) Tenth. The Green and Douglass mortgages look to sequestration rather than sale. (Bardstown & Louisville R. R. Co. v. Metcalfe, 4 Met. 211; Winchester Turnpike Co. v. Vimont, 5 B. Mon. 1.) Eleventh. The mortgagees for their lien debts, the commonwealth and the city of Louisville for their taxes, must exhaust their liens upon the property before pursuing the earnings to which other creditors may resort. (Applegate v. Ernst, 3 Bush, 648; Graves v. Sayre, 5 B. Mon. 390; Swigert v. Bank of Kentucky, 17 B. Mon. 284.) Twelfth. A lien-holder of any kind, or a creditor who has attached a fund about which there is a controversy in the action, has uniformly been held to be a necessary party to its determination. (Civil Code, secs. 40 and 328; McMahon v. Allen, 12 Howard, H. Y., 39; Johnson v. Chandler, 15 B. Mon. 589.) Thirteenth. Courts of equity will enforce the specific performance of railway connection and traffic contracts where they are in their nature perpetual and tend to advance the public service in supplying facilities for trade and commerce and cheapen transportation by furnishing competition. (Androscoggin, Kennebec, &e., R. R. Co. v. Androscoggin R. R. Co., 52 Maine, 417; C. P., &c., R. R. v. Indianapolis R. R. Co., 5 McLean, 460; Gt. N. Railway Co. v. Manchester Railway Co., 10 Eng. L. & E. 11; Bartlette v. Norwich & W. R. R. Co., 33 Conn. 560.) Fourteenth. The tripartite contract in this case, guaranteeing the amount of tolls to the N. & C. Bridge Co., is expressly perpetual, made upon ample legislative authority, hoth in the charter of the railroad company (act of January 27,1830, sec. 19) and bridge company’s charter. (Act of February 26, 1868, see. 2; Russell v. East Anglican Railway Co., 3 McNaughton & Gordon, 144.) Fifteenth. The railroad company had no power to provide for the alienation of any part of a fund secured by the charter to pay the expenses of the public service to be rendered by it. Railroad mortgages must be within the limits of legislative authority, • and must be construed as to their validity and effect by the charter rather than the general law. (Phillips v. Winslow, 18 B. Mon. 445; Same v. Cov. & Lex. R. R. Co., January, 1862; Commonwealth v. Smith, 10 Allen; 1 Redfield’s Railway Cases, 579.) Sixteenth. The “ superior equity ” mentioned in Douglass v. Cline, ante, 608, is manifestly, as to the earnings, not in the mortgagees, but in the operating creditors. First. The opinion of this court on the appeal of Douglass, &c. v. Cline, &c. (12 Bush, 608) decides that the mortgagees have no lien on the earnings. The mortgagees have only a prima fade right to be paid if no better claim appears. (Downing v. Palmateer, 1 Mon. 70; McCann v. Letcher, 8 B. Mon. 331; Graves v. Sayre, 5 B. Mon. 391; 4 Jacob’s Law Diet., “Lien.”) Second. None of the mortgagees have a lien on the earnings or income in contest. 1. The mortgages create no lien on the earnings by any express words authorized by law. Except the Lees mortgage none profess to convey earnings. Property not in being at the time of a conveyance will not pass by it. (Ross v. Wilson, Peter & Co., 7 Bush, 34; Vinson v. Hallowell, 10 Bush, 538; Phillips v. Winslow, 18 B. Mon. 445; Sec. 1, Act of Jan’y 23,1873; 1 Session Acts 1873, p. 117; Angelí & Ames on Corp., sec. 111; Beaty v. Knowler, 4 Peters, 152; Bank U. S. v. Norvell, 2 Marsh. 102; Maddox v. Graham, 2 Met. 73.) A franchise can not be mortgaged unless by express legislative permission. (Commonwealth v. Smith, 10 Allen, 448-455.) The public interest in having the road operated prevails over the statute of executions. (Applegate v. Ernst.'3 Bush, 648; 2 Redfield on Railways, sec. 9, p. 310; Taylor v. Salmon, 4 Myl. & Cr. 141, and Or. 619-635; 1 Myl. & Or. 559; Steiner’s Appeal, 27 Pa. St. 313.) 2. No lien on the earnings is incident to or can be implied from the mortgages. (Douglass, &c. v. Cline, &c., 12 Bush, 608.) As to the covenants in the mortgages for possession by the trustees, they have not been pursued, and are therefore inoperative. (1 Bouvier’s Institutes, 197, etc.) 3. The appointment of a receiver does not give to the mortgagees any lien on the earnings. (Civil Code, secs. 329, 328, 332, 472; Elliott v. U. S. Ins. Co., 7 Gill, 307; High on Receivers, sec. 349, p. 161; Skip v. Harwood, 3 Atk. 564; Wiswall v. Sampson, 14 How. 64; Chase’s Case, 1 Bland Ch. 213; Edwards on Receivers, p. 3; High on Receivers, sec. 666; Post •v. Dorr, 4 Edwards’s Ch. 414.) A preference is not gained by the appointment of a receiver. (Beverly v. Brooke, 4 Grattan, 208; Daniells’s Ch. PI. & Pr. 1717; Davis v. Duke of Marlborough, 2 Swanstpn, 137.) Third. The earnings in the hands of the receiver are liable to the attachments herein. (Chennery v. Evans, 11 House of Lords Cases, 134; Williamson v. Wilson, 1 Bland Ch. 421; Elliott v. Woodford, 4 Md. 85; Drake on Attachments, sec. 509 a; Civil Code, sec. 231; Huffman v. Thomas, 2 Duvall, 105.) Fourth. The equities of appellants are superior to any belonging to the mortgagees. (Story’s Eq., sec. 557.) Fifth. The taxes due the commonwealth and city of Louisville are bylaw “a lien upon the property assessed” (General Stat., sec. 2, art. 1, chap¡ 92, p. 709, “Revenue and Taxation”), and ought to be adjudged to be paid out of the proceeds of the sale of the property assessed, and not out of the earnings in the hands of the receiver. First. According to the rule established in Douglass, &c. v. Cline, &e., that “ each claim will rest upon its own peculiar merits, and as the mortgagees have prima fade an equitable claim to the whole fund the onus will be upon each general creditor to establish a superior right on his part,” the Louisville Bridge & Iron Company’s claim for building a substantial and durable bridge over the Kentucky River at Worthville, as part of the railroad’s principal line, must take rank as one of the first, if not the very first, in equity. Second. The equity of the Louisville Bridge & Iron Company lies in the fact that it actively and efficiently conserved the property and made it available for use and profit to the owner or receiver. But for it the fund now in court would not have been accumulated. First. Railroads are public highways. Railroad companies hold their roads and equipments, franchises and earnings, as agents and trustees of the state, and can not sell or mortgage them without authority from the state. Second. A creditor may, by petition, on return of no property, create a lis pendens lien on the franchise to take tolls and the future earnings of a railroad company, and subject them to the payment of his debt. He may also attach them. Third. Property and its rents, and especially a railroad and its earnings, are distinct things, and a mortgage of the one does not imply a mortgage of the other. A mortgagor is now considered the owner of the mortgaged property and of its rents or earnings until it is conveyed away from him to a purchaser at the judicial sale in the suit to foreclose the mortgage. Fourth. A creditor may attach in the hands of a court’s receiver a fund derived from the profits of the debtor’s estate. Fifth. The appointment of a receiver in a suit to enforce a mortgage lien on property does not divest a previously acquired Us pendens or attachment lien on the unmortgaged rents of the property. Sixth. The appointment of a receiver in such a suit does not create a lien in favor of the mortgagee on the unmortgaged rents. Seventh. By filing its bill in equity, on a return of no property against the railroad company, before the receiver was appointed, and specifically describing and asserting a lien upon its road and equipments and its “rights and franchises” and income, tolls, rents, issues, and profits,” the Western Bank acquired a Us pendens lien upon the future net earnings of the road, and the court below should have subjected the net earnings to the payment of the debt of the bank. And by, at the same time, issuing and levying its attachment on the earnings and serving an indorsed notice on the president of the company, as provided for in section 477 of the Code, an attachment lien was also acquired thereon. (Acts 1821, 1828, 1 M. & B. 802, 304; Scott v. McMillen, 1 Littell, 305; Scott v. Coleman, 5 Mon. 75; Spader v. Davis, 5 Johns. Ch. R. 280; Had-den v. Spader, 20 Johns. 554; 32 N. Y. 454; Newdigate v. Lee, 9 Dana, 20; Dudley v. Price, 10 B. Mon. 87; Huffman v. Thomas, 2 Duvall, 105; Edmunston v. Lyde, 1 Paige, 639; Corning v. White, 2 Paige, 567; Gratz v. Redd, 4 B. Mon. 197; 1 Duvall, 206; 1 Bush, 294; Roberts v. Drinkard, 3 Met. 309; Drake on Attachment, sec. 7, 557; Civil Code, secs. 474, 477; Dartmouth College Case, 4 Wheaton, 580; Bank of Louisville v. Barrick, 1 Duvall, 51; 1 Comyn’s Dig., title “Attachment,” C; 3 East’s Rep. 367; Glen v. Boston Co., 7 Md. 287; 27 Ala. 380; 25 Vermont, 141; 6 N. H. 397; 20 Pa. St. 412; 5 Bosworth, 518; Coe v. C. R. R., 10 Ohio St. 393; Winchester Turnpike Co. v. Vimont, 5 B. Mon. 3; Phillips v. Winslow, 18 B. Mon. 448; E. & P. R. R. Co. v. Elizabethtown, 12 Bush, 233.) The earnings of a railroad company are held by the company as a trust fund for the payment of its debts incurred in operating the public highway; and this trust being in favor of the creditors, can be enforced by any creditor by a petition in equity on return of no property. (Angelí on Highways, p. 54; 1 Redfield on Railways, chap. 11 on “Eminent Domain”; State v. Boston R. R., 25 Vermont, 442; Olcott v. Supervisors, 16 Wallace, 694; Dyer v. Tuscaloosa Co., 2 Porter, 303; Pa. R. R. v. Nat. R. R., 8 C. E. Green, 450; Erie R. R. v. Dél. Co., 6 C. E. Green, 286; Lansing v. Smith, 4 Wend. 21; Young v. Harris, 6 Georgia, 142; Green’s Brice’s Ultra Vires, 278; R. R. Co. v. Applegate, 8 Dana, 295; R. R. Co. v. Campbell, 44 Cal. 91; Camden & Amboy R. R. v. Briggs, 2 Zab. 647; Perrine v. Chesap. Co., 9 How. 184; Beekman v. Saratoga R. R. Co., 3 Paige, 75; Messenger v. Pa. R. R., 7 Vroom, 413; Pierce v. Emery, 32 N. H. 507; Stewart’s Appeal, 56 Pa. St. 422; Green’s Brice’s Ultra Vires, 104; Inh. of Worcester v. Western R. R., 4 Met. (Mass.) 566; Commonwealth v. Smith, 10 Allen, 448; 14 Allen, 381; 27 Pa. St. 313; 9 Smedes & Marsh. 394; 7 C. E. Green, 399; 17 Barb. 601; 32 N. H. 507; 56 Pa. St. 422; 11 Allen, 65; 5 W. & S. 265; Commonwealth v. Wilkinson, 16 Pickering, 175; 9 Watts & Serg. 27; 3 Robinson La. 513; 17 Howard (U. S. S. C.), 39; 24 Howard, 257; 14 Wisconsin, 580; Corry v. Lou. & En. R. Co., 29 Beavan, 263; Lane v. Baugham, 17 Ohio St. 648; Lex. L. E. & M. Ins. Co., &c. v. Page & Richardson, 17 B. Mon. 412; Wheeler v. Wheeler, 2 Met. 477; Whitehead v. Root, 2 Met. 586; Jessup v. Bridge, 11 Iowa, 572; Dunham v. Isett, 15 Iowa, 284; Foster v. Fowler, 60 Pa. St. 31; Seymour v. Mil. Turnpike Co., 10 Ohio, 480; Ludlow v. Heard, 1 Disney (Ohio), 562; 6 Amer. Law Reg. 502; Bryan v. Knickerbocker, 1 Barb. Oh. R. 427; Farnham v. Campbell, 10 Paige, 601; Plymouth R. Co. v. Colwell, 30 Pa. St. 339; Leedom v. Plymouth R. Co., 5 Watts & Serg. 265; Ammant v. Turnpike Co., 13 Watts & Serg. 212; Adley v. Whitestable Co., 17 Vesey, 328.) Eighth. By suing out an alias attachment after the appointment of the receiver, and garnishing the fund in his hands, the bank acquired a lien, under sections 331 and 246 of the Civil Code, on the fund in his hands, “ at or after the service of the notice on him.” (Civil Code, secs. 476, 477, 231, 233, 245, 246; Field v. Jones, 11 Georgia, 416; Groome v. Lewis, 23 Md. 150; Eyton v. Railway Co., Law Rep., 6 Equity, 16; Vincent v. Parker, 7 Paige, 65; Waring v. Robinson, 1 Hoffman’s Ch. R. 524; Albany Bank v. Schermerhorn, 10 Paige, 265; Adams v. Woods, 9 Cal. 28; Skinner v. Maxwell, 68 N. Car. 404; Rowlet v. Eubank, 1 Bush, 480; Ellis v. Carr, 1 Bush, 529; Johnson v. Gunter, 6 Bush, 534. Ninth. Douglass, Green, and others, being mortgagees of the road, but not of its earnings, did not impair said first-named liens of the Western Bank, nor acquire a right superior thereto hy subsequently bringing a suit for the foreclosure of their mortgages and having a receiver appointed for said roads, especially as the receiver was appointed on the “hearing together” of the two cases, and on the express condition that the appointment should not impair the rights of any one. Authority to mortgage the earnings of the road was not conferred on the company by the charter or any act amendatory thereto. (3 Kent, 460; Taylor’s Land, and Ten., secs. 447, 154; Drake on Attachments, sec. 240; Childers v. Smith, 10 B. Mon. 235; Gratz v. Redd, 4 B. Mon. 183; Bank of U. S. v. Huth, 4 B. Mon. 448; Johnson v. City of Lexington, 14 B. Mon. 521; Phillips v. Cov. & Lex. R. R. Co., MS. Opinion, 1862; 18 B. Mon. 444; 16 Wallace, 694; Pulían v. Oin. & Chicago R. R., 4 Bissel, 41; Jessup v. Bridge Co., 11 Iowa, 575; Covington v. Bridge Co., 10 Bush, 77; 2 Redfield on Railways, sec. 235; Green’s Brice’s Ultra Vires, 104, note.) The court did not, by the appointment of the receiver, impair the lis pendens and attachment liens previously acquired by the Western Bank. (Douglass, &c. v. Cline, &c., 12 Bush, 608; Zeiter v. Bowman, 6 Barb. 133; Syracuse Bank v. Tallman, 31 Barb. 209; Corning v. White, 2 Paige, 567; Albany Bank v. Schermerhorn, 9 Paige, 377; Bank of Ky. v. Vance, 4 Littell, 175; Swigert v. Bank of Ky., 17 B. Mon. 285; Story’s Eq., sec. 499; Hannegan v. Hanna, 7 Blackford, 354; 1 Johns. Ch. R. 409; 1 Brockenborough, 266; 1 Devereux Eq. 137.) Tenth. By law, as well as by the terms of the chancellor’s order, the appointment of the receiver did not take away or give any rights to the earnings; and while, at the termination of the suit, the court, upon the equitable principle of avoiding future litigation, costs, and circuity of action, might decree the earnings (in the absence of opposing claim) to the mortgagee, as a creditor, rather than to the mortgagor debtor, yet as a legal right and lien had meanwhile been acquired on the fund by third persons by garnishing the receiver, the court could not properly have decreed it in the final decree to the mortgagee who had no lien, but should have adjudged it to those who had acquired such intermediate rights or liens. (4 Kent, 158 and 116; 5 Coke’s Rep. 95, 114; Birch v. Wright, 1 Bos. & Pul. 382; Doe v. Maisey, 8 B. & C. 767; 2 Smith’s Lea. Cases, 666; Howard v. Harris, 1 Vernon, 190; 26 Georgia, 203; Civil Code, secs. 404, 14, 476, 474, 221, 231, 328, 329, 332; Douglass, &c. v. Cline, <ftc., 12 Bush, 608; Brace v. Shaw, 16 B. Mon. 78 ; Waring v. Smith, 2 Barb. Ch. Rep. 135; McMillian v. Richardson, 9 Cal. 411; 49 Mo. 128; 31 Pa. St. 295; Dutton v. Worchester, 21 Cal. 611; 39 Cal. 247; Fletcher v. Holmes, 32 Ind. 512; Ladue v. Detroit R. R., 13 Mich. 395; Breck v. Hume, 4 Littell, 285; 14 Iowa, 173; 12 Mo. 174; 21 Conn. 379; 6 Vt. 602; Walker v. Bell, 2 Maddock, 21; White v. Bishop of Peter-borough, 3 Swanston, 109; 2 Swanston, 147; 3 Vesey, 22; Bank of Ogdensburg v. Arnold, 5 Paige, 43; Post v. Dorr, 4 Edwd. Ob. R. 414; Frisbie v. Bateman, 9 O. E. Green, 29; 2 Halstead’s Ch. 154; 3 Stockton, 39; Graves v. Sayre, 5 B. Mon. 392; Julian v. Pilcher, 2 Duvall, 255; Story’s Equity, sec. 557; High on Receivers, sec. 666; Kerr on Receivers, 49; Dudley v. Price, 10 B. Mon. 87; 32 ST. Y. 32; Jones v. Lusk, 2 Met. 361; 2 Duvall, 91; Kennard v. Adams, 11 B. Mon. 104; 8 B. Mon. 37; German Security Bank v. Jefferson, 10 Bush, 380; Mays-ville & Lex. R. R. Co. v. Punnet, 15 B. Mon. 48; Ellicott v. Ins. Co., 7 Gill, 320; Clason v. Corley, 5 Sandford’s Rep. 447; Mitchell v. Bartlett, 52 Barb. 327; Whalin v. White, 25 N. Y. 466. First. Section 329 of the Civil Code is not an attachment law. Second. There can be no lis pendens lien created In favor of a creditor upon his debtor’s property except by a suit to enforce a pre-existing right to or lien upon said property, or an attachment, or a proceeding on a return of “ no property!” Third. The creditor’s “superior right” by attachment, on a fund in court belonging to the debtor, overcomes a mere “prima fade equitable claim ” of other creditors on the fund. That the attaching creditors acquired valid liens on the fund in the hands of the receiver the following additional authorities are cited: Kinney v. Crocker, receiver, 18 Wisconsin, 79; Chautauqua Co. Bank v. Risley, 19 N. Y. 376; Naglee v. Layman, 14 Cal. 456; Southern Law Review, October number, 1876, p. 582. The mortgages did not give the mortgagees a contract right to the future earnings of the road as an incident of ownership. (Douglass, &c. v. Cline, &c., 12 Bush, 608; Dutton v. Warshchauer, 21 Cal. 611; Fletcher v. Holmes, 32 Ind. 512; Ladue v. Detroit R. R. Co., 13 Mich. 395; Trim v. Marsh, 54 H. Y. 603; Clason v. Corley, 5 Sandford R. 447; Mitchell v. Bartlett, 52 Barb. 327; Whalin v. While, 25 N. Y. 466; Whitney v. Allen, 21 Cal. 236; Dewey v. Latson, 6 Cal. 609; Swigert v. Bank of Ky., 17 B. Mon. 284; Galveston R. R. Co. v. Cowdrey, 11 Wallace, 459.) By the order appointing the receiver to take charge of and operate the roads the mortgagees did not acquire a lien on the future earnings. (Civil Code, secs. 328, 233, 477, 875, 332, 329, 231; General Statutes, p. 417; 4 Grattan, 208; High on Receivers, secs. 666, 668; Story’s Equity, 557; German Security Bank v. Jefferson, 10 Bush, 330; 1 Bush, 480, 529; 6 Bush, 534; Dewey v. Latson, 1 Cal. 609; Childers v. Smith, 10 B. Mon. 237; Bank of Syracuse v. Tallman, 31 Barb. 210; Guy v. Ide, 6 Cal. 99; McMillen v. Richards, 9 Cal. 410 ; Anderson v. State, 23 Miss. 475; Mackreth. v. Symmons, 1 Leading Cases Eq. 374 ; Gilman v. 111. & Miss. Tel. Co., 1 Otto, 603; Fair v. Inman, 6 Heiskell, 13; Bayley v. Greenleaf, 7 Wheaton, 57; Adams v. Woods, 9 Cal. 24; Julian v. Pilcher, 2 Duvall, 254; Allen v. Megguire, 15 Mass. 490. By filing their petitions to foreclose their mortgages on the road the mortgagees did not acquire a lis pendens lien on the future earnings. (Civil Code, sec. 474; Weatherford v. Myers, 2 Duvall, 91; McKinley v. Combs, 1 Mon. 106; Allen v. Camp, 1 Mon. 232; Anderson v. Bradford, 5 J. J. Mar. 73; Maddox v. Fox, 8 Bush, 403; Bardstown Turnpike Co. v. Caldwell, 8 B. Mon. 37; Dunlevy v. Tallmadge, 32 N. Y. 459; Ocean Bank v. Olcott, 46 N. Y. 18; 1 Wallace, 330; 42 111. 230; 47 Vermont, 313; 32 Ala. 471; 29 Ga. 38; 31 Miss. 454; Covington Drawbridge Co. v. Shepherd, 21 How., U. S., 125; Jones v. Lusk, 2 Met. 859; Pearson v. Keedy, 6 B. Mon. 130; Tyler v. Peat, 30 Mich. 650; Kennard v. Adams, 11 B. Mon. 104; Stone & Warren v. Connelly, &c., 1 Met. 653; Ward v. Robinson, 1 Bush, 294.) First. The statute of 1876, fixing the credits upon which the road is ordered to be sold, must be followed, or the judgment of sale is nugatory. (Hahn v. Pindell, 1 Bush, 538; Jarboe v. Colvin, 4 Bush, 70.) Whether the time as fixed is longer or shorter than the lawful credit makes no difference. (Carson v. Robertson, and Robertson v. Glass, MS. Opinions, December, 1857; Cofer v. Miller, 7 Bush, 546; Bethel v. Bethel, 6 Bush, 68.) Second,. Rents and profits are inseparably connected with the ownership of the property from which they spring. Third. At common law, as well as in equity, a mortgage is now regarded as a mere chattel interest, as a security only, dependent upon a debt; and until foreclosure and sale the mortgagor holds the legal title, and takes as owner all the advantages incident to ownership. (Douglass, &c. v. Cline, &c., 12 Bush, 608; Civil Code, secs. 403-406.) This rule is now recognized almost universally over the United States to the full extent to which it obtains in Kentucky. (Burr v. Robinson, 25 Ark. 277; Goodenow v. Ewer, 16 Cal. 467; Dutton v. Warshchauer, 21 Cal. 62; Kidd v. Temple, 22 Cal. 262; City of Norwich v. Hubbard, 22 Conn. 594; Doe & Hall v. Tunnell, 1 Houston, 320; Davis v. Anderson, 1 Kelly, 193; Winter v. Garrard, 7 Ga. 183; Ragland v. The Justices, 10 Ga. 73; Scott, Garhart & Co. v. Warren & Spicer, 21 Ga. 417; Fletcher v. Holmes, 32 Ind. 513; Lucas v. Harris, 20 111. 169; Newman v. DeLorimer, 19 Iowa, 246; Chick v.Willetts, 2 Kansas, 391; Clarke v. Peak, 15 La. Ann. 408; Timms and wife v. Shannon, 19 Md. 314; Ladue v. Detroit & Milwaukee R. R. Co. 13 Mich. 394; Berthold v. Holman, 12 Minn. 344; Berthold v. Fox, 13 Minn. 504; Buckley v. Daley, 45 Miss. 345; Woods v. Hildebrand, 46 Mo. 286; Kyger v. Riley, 2 Neb. 28; Webb v. Hoselton, 4 Neb. 318; Trustees of Union College v. Wheeler, 61 N. Y. 118; Trimm v. Marsh, 54 N. Y. 604; Miami Exporting Co. v. Bank of U. S., Wright, 251; Besser v. Hawthorne, 2 Oregon, 133; Wilson v. Shoenberger’s ex’rs, 31 Penn. St. 299; Thayer v. Cramer, 1 McCord’s Ch. R., 397; Whitmore v. Parks, 3 Humph. 95; Mann v. Falcon, 25 Texas, 275; Cooper v. Cole, 38 Vermont, 390; Earp v. Boothe, 24 Grattan, 374; Wood v. Trask, 7 Wisconsin, 572.) The New York courts gave a receiver to an encumbrancer. (Bank of Ogdensburg v. Arnold, 5 Paige, 43; Post v. Dorr, 4 Edwards’s Ch. R., 414; Syracuse Bank v. Tallman, 31 Barbour, 201.) But in New Jersey the New York decisions were repudiated as a misconception of the old English rule. (Cortleyeu v. Hathaway, 3 Stockton, 40.) The word lien was never used in England or America with reference to the right of the mortgagees to the rents and profits until the case of Howell v. Ripley (10 Paige, 43.) All the cases preceding it in this country and England awarded the rents and profits to the mortgagee upon the fiction of ownership. Fourth. It is the office of lis pendens to secure a previously existing right against alienations to persons who, without the constructive notice of the suit, could have acquired a right to the thing higher in dignity than the existing right of the plaintiff in the suit, and the object of the suit is simply to protect a right existing in favor of the plaintiff against the defendant and to secure it against the claims of the rest of the world. The receiver holds subject to the same equities which could have been asserted against the defendant. (Receivers v. Paterson Gas-light Co., 3 Zabriskie, 392.) The possession of the receiver is the possession of the court. (Johnson v. Gunter, 6 Bush, 536.) In appointing him the court simply protects the property, but does not decide the ultimate rights. (Blackeney v. Dufour, 15 Beavan, 42; Shelden v. Weeks, 2 Barb. 533; Skip v. Harwood, 3 Atkyns, 567.) The possession of the receiver is not adverse, or in hostility, to the defendant. (Mays v. Rose, Freeman, Miss., 718.) He is appointed for all parties in interest. (Kaiser v. Keller, 21 Iowa, 96.) He is not the receiver of the complainant, but of all. (Hooper v. Winston, 24 111. 363.) He is an indifferent person between the parties, on behalf of all parties. (Baker v. Backus, 32 111. 95; Booth v. Clark, 17 How. U. S., 331; Corry v. Long, 43 How. Pr. Rep., 498; Green, receiver, v. Bostwick, 1 Sandf. Ch. R., 185.) A creditor may lawfully obtain a preference while a suit with injunction is pending. (McCredie v. Senior, 4 Paige, 378.) The possession of the receiver does not change the title, nor does it create any lien. (Ellis v. Boston, Hartford & Erie R. R. Co. 107 Mass. 28; Ellicott v. United States Ins. Co. 7 Gill, Md. 319; In re Rachel Colvin, 3 Md. Ch. 302; Ellicott v. Warford, 4 Md. 85.) The attorney for the mortgagee can not be the attorney for the receiver on account of diversity of interest. (1 Sandf. Ch. 185.) When appointed under debentures, although appointed by the mortgagee, the receiver is nevertheless the agent of the mortgagor. (1 Chancery Appeal Cases, 190; 2 Ibid. 641.) The appointment of a receiver at the instance of the mortgagee does not stop the running of the statute of limitations against the latter. (2 Atkyns, 15.) The court will rule the mortgagee for interfering with the receiver. (3 Hare, 472.) If the receiver appointed by the mortgagee embezzles, the loss falls upon the mortgagor. (3 Brown’s Ch. 365.) First. As none of the mortgagees claiming under the mortgages anterior to the Lees deed have a specific pledge of the “ tolls, income, rents, issues, and profits” of the company, none of them can claim them “as a legal incident to or a legal right growing out of his mortgage.” (Douglass, &c. v. Cline, &c., 12 Bush, 608; Syracuse City Bank v. Tallman, 31 Barb. 201; Kerr on Receivers, by Bispham, 36-7, and cases cited in note.) In Kentucky, on assignment of the mortgage debt, the mortgage also passes without express transfer as a mere incident to the debt. (Chambers v. Keene, 1 Met. 292; Barnes v. Lee, 1 Bibb, 528; Leacock v. Hall, 13 B. Mon. 211.) As elsewhere, on the death of the mortgagee, the mortgage, like any other chattel, passes not to his heir, but to his personal representative, while the mortgaged land descends on the death of the mortgagor with his other realty, to his heir. (King v. Merch. Ex. Co. 1 Selden, 557; Ladue v. Det. & Milw. R. R. Co. 13 Michigan, 380; Revised Statutes, 1 Stanton, 435, 482, 488; General Statutes, 426, 435; Farmers’ L. & T. Co. v. Cary, 13 Wisconsin, 110; Bondurant v. Owens, 4 Bush, 662.) A vendor’s lien existed whether a deed had been made or not. (Voorhies v. Instone, 3 Bibb, 354; 3 Bibb, 183; 4 Bibb, 289 and 303; 2 Marsh. 294; 6 Mon. 388; 2 J. J. Mar. 829; 4 Littell, 317; Eubank v. Poston, 5 Mon. 286; Kenny v. Collins, 4 Littell, 290; Stewart v. Hutton, 3 J. J. Mar. 178; Royal v. Miller, 3 Dana, 56; Brown v. East, 5 Monroe, 408; Payne v. Wallace, 6 Monroe, 388.) It is the security of a purchaser for his advances where the contract or sale is rescinded. (Funk v. McKeoun, 4 J. J. Mar. 169; Griffith v. Depew, 3 Mar. 179; Scott v. Clarkson’s executrix, 1 Bibb, 280; Bibb v. Prather, 1 Bibb, 316; Revised Statutes, 2 Stant. 230; Gen. Stat. 589.) Second. The Lees or consolidated mortgage contains a valid pledge of the earnings and income of the company. The company was authorized to issue bonds and “to secure the payment of the principal and interest of said bonds by a consolidated mortgage on the property and franchises of the company, including its branches.” (Acts 1873, p. 117.) At common law it is incident to every corporation aggregate “ to take and grant property, to contract obligations,” etc. (Ang. & Ames on Oorp., secs. 110, 111, 187, 220,191; Com. Dig. Franchises F. 18; Barry v. Merch. Ex. Co., 1 Sandf. Ch. 280; Richards v. Railroad, 44 N. H. 135; Pierce v. Emery, 32 N. H. 503; Allen v. Mont. R. R. Co., 11 Ala. (N. S.) 437; Mobile, &c., R. R. Co. v. Taiman, 15 Ala. (N. S.) 472; Green’s Brice’s Ultra Vires, 66 and note; Bardstown & Louisville R. R. Co. v. Metcalfe, 4 Met. 207.) Third. A corporation authorized to borrow money may, by mortgage on its property, bind its after-acquired property. (Pennock v. Coe, 23 How. (S. C.), 117; Ludlow v. Hurd, 1 Disney (Ohio), 552; Coopers v. Wolf, 15 Ohio St. 523; Pierce v. Emery, 32 N. H. 485; Pierce v. Milw. & St. P. R. R. Co., 24 Wis. 551; Dunham v. Earle, 2 Redf. Railw. 550; sec. 235, note; Phillips v. Winslow, 18 B. Mon. 431-45; Robinson v. McDonnel, 4 Maul. & Sel. 228; Curtis v. Haber, 1 Jac. & W. 526; Douglas' v. Russell, 4 Sim. 524; S. O., 1 My. & K. 488; Langton v. Horton, 3 Beavan, 464; 1 Hare, 549; Lindsay v. Gibbs, 22 Beavan, 522; 2 Am. Law Reg. (N. S.), 527; 3 Am. Law Reg. (N. S.), 31-33; Story on Sales, secs. 185,186; Benjamin on Sales, page 58; Zeiter v. Bowman, 6 Barb. 133; Astor v. Turner, 11 Paige, 436; Howell v. Ripley, 43; 4 Met. 199; Grinnell v. Trustees S., M. & N. Railway, Ohio Ct. Com. Pleas, 2 Redf. Railway, 530, 235, note; Holroyd v. Marshal, 9 Jurist (N. S.), 213; Jessup v. Bridge, 11 Iowa, 572.) Fourth. The leigslative authority to make the Lees mortgage, to mortgage “the property and franchises of the company, including its branches,” is ample. (Syracuse Bank v. Tallman, 31 Barbour, 201; 2 Bouvier’s Just. sec. 1686, p. 211; Com. Dig. Franchises, A. 1; Hall v. Sullivan Railway Co., 2 Redf. Railw. 518, sec. 235, note; Peter v. Kendall, 6 B. & C. 703; Com. Dig. Grant, C; 1 Redf. Railw. 4, sec. 51; Ibid. 53, sec. 17, note 4; Bowman v. Wathen, 2 McLean, 393; Steiner’s appeal, ■ 27 Penn. St. 313; 4 Met. 199; Pennock, v. Coe, 2 Ho. S. C., 125; State v. Northern Central R. R. Co., 18 Md. 193; Phil., Wil. & Balt. R. R. Co. v. Woelpper, 64 Penn. St. 366; Garrett v. May, 19 Md. 192; Parkhurst v. Northern C. R. R. Co., 19 Md. 484; Coe v. Col., Piq. & Ind. R. R. Co., 10 Ohio St. 389; 1 Disney, 554; Galveston R. R. Co. v. Cowdrey, 11 Wall. 482; 18 B. Mon. 431; 11 Iowa, 472; 15 Iowa, 285; 3 Md. 311; 26 Illinois, 131; Green’s Brice’s Ultra Vires, 123, note; 1 Sandf. 288; 15 Iowa, 294.) Fifth. The receiver in this cause is really a receiver for the benefit, not of the parties on whose motion he was appointed, but of the party entitled to the fund. (Howell v. Ripley, 10 Paige, 46; Williamson v. New Albany R. R. Co., 1 Bissel, 198; Syracuse Bank v. Tallman, 31 Barb. 201; 2 Story’s Eq., sec. 829.) Sixth. The general creditors who are seeking by attachments to subject the accumulated earnings in the receiver’s hands to their demands can not prevail against appellant Cochran’s superior claim under the specific pledge of the tolls and income in his (Lees) mortgage. (Jessup v. Bridge, 11 Iowa, 576; Dunham v. Isett, 15 Iowa, 284; Gal. & Chic. R. R. Co. v. Menzies, 26 Illinois, 121; Pennock v. Coe, 23 How. S. C., 117; Winslow v. Phillips, 18 B. Mon. 431.) Seventh. It follows, then, that appellant Coehran, having a clear contract right to the income and earnings, is plainly entitled to the fund arising from this source, accrued and accruing, and that the court below should have ordered the profits over and above the operating expenses of the road to he paid to him for the purpose of feeing administered for the benefit of those entitled under his trust deed. (Douglass, &c. v. Cline, &c., 12 Bush, 608; 81 Barbour, 201; Forepaugh v. Appoid, 17 B. Mon. 629; 11 Wall. 459; 1 Chitty’sPl. 3.) The services rendered by the transfer company were necessary and essential to the proper working of the railroad, and therefore the claim for these services should he paid out of the fund in the hands of the receiver. (Douglass, &c. v. Cline, &e., 12 Bush, 608; Duncan, &c. v. Chesapeake & Ohio Railroad Co., Circuit Court, Richmond, Va., Am. Law Reg., July, 1876.) Appellant sold and delivered coal to the railroad company between November 3,1873, and February 21, 1874, which was indispensable for operating the road, aided to increase its earnings, and contributed to the convenience of the traveling public. By the terms of the mortgages appellant’s claim for this coal was a charge upon the gross earnings of the road; appellant’s equity was superior to those of the mortgagees. The fund in the hands of the receiver is not the subject of attachment, hut should he distributed by the court according to the rights of the parties at the date of its accumulation, and to which there can not be any after acquired preference or lien superior to the other creditors. (Douglass, &c. y. Cline, &c., 12 Bush, 608; Phillips v. Cov. & Lex. B. R. Co., MS. Opinion, 1862; Pierce y. Emery, 32 N. H.; Thomasson v. Townsend, 10 Bush, 114; Loudenschlager v. Benton, 3 Grant, 384.) First The appeal of the Newport & Cincinnati Bridge Company should be dismissed as against these appellees. An appeal can only be granted to a party. (Civil Code, sec. 876.) Appellant was not made a party to the cross-petition of Harrison by being named as such or served with process, nor as the result of the order for the hearing of its action with the cross-petition, nor by the combination of the judgments in the several cases. Second. Receivers are only appointed for parties’ interest. (Daniell’s Ch. 1407, n. 2, 1408-9; Kerr on Receivers, 7,10; High on Receivers, sec. 1012; Williams v. Wilson, 1 Bland Ch. PI. & Pr. 422-3.) Third. Receivers are appointed for encumbrancers. (Equitable: Daniell’s Ch. PI. & Pr. 1409-10; Kerr on Receivers, 36-46; Story’s Eq., sec. 837. Legal: Kerr on Receivers, 40; Thomas v. Dawkins, 3 Brown C. O. 58; Eench v. Huston, 19 Wis. 149; Ackland v. Grosvenor, 31 Beav. 484; Brown v. Chase, Walker Ch. 43.) Fourth. Encumbrancers therefore have rights in income. (Downing v. Palmateer, 1 Mon. 71; McCann v. Letcher, 8 B. Mon. 331; Civil Code, sec. 329; Denniston v. St. L. R. R. Co., 4 Biss. 416.) 1. Prior to appointment of receiver. (Beverly v. Brook, 4 Grat. 210.) 2. Which depend on the nature of his lien. (First, Common law liens: Story’s Eq., secs. 1216 and a, b, c, 1217. Second, Equitable liens: lb. and Kerr on Receivers, 48; Kuch v. Hall, 1 Smith’s L. Ca. 654; Gressly v. Adderly, 1 Swanst. 573; Lewis v. Zouch, 2 Simmons, 388; Smith v. Ld. Effingham, 2 Beav. 232; Bank of Ogdensburg v. Arnold, 5 Paige, 40; Cortleyeu v. Hathaway, 3 Stockton, 42. Third, Mortgage liens: 1 Smith’s L. Ca. 663; Norton & Calhoun v. L. P. & S. W. R. R. Co., U. S. Court.) Give both legal 'and equitable rights. Equitable always recognized and provided for when income in custodia legis. (White v. Peterborough, 3 Swanston, 109; Walker v. Bell, 2 Mad. 353; Kerr on Receivers, 50,161; Daniell’s Ch. PI. & Pr. 1408; Story’s Eq., secs. 837-8; Langton v. Lang-ton, 31 Eng. L. & E. 422; Beverly v. Brook, 4 Grat. 188; Brook v. Great-head, 1 J. & W. 176.) What examination pro interesse suo is. (Daniell’s Oh. PI. & Pr. 1083 et seq.; Wharam v. Broughton, 1 Vesey, 180; Empringham v. Short, 3 Hare, 461.) Above do not conflict with Howell v. Ripley, 10 Paige, 46, nor with the cases in which mortgagees out of possession are held not entitled to income as such. (Thomas v. Briggstocke, 4 Russ, 64; Ellis v. B., H. & E. R. R. Co., 107 Mass. 1.) . • t Mortgagees’ rights waived till steps taken to enforce them, unless the mortgagor is evicted. (White v. Peterborough and Walker v. Bell, supra; Castleman v. Belt, 2 B. Mon. 159; Moss v. Gillimore, 1 Smith L. Oa. 689 and notes; Patterson v. Carneal, 3 Mar. 613; Snyder v. Hitt, 2 Dana, 204; Crockett v. Lashbrook, 5 Mon. 540; Myers v. Sanders, 8 Dana, 65; Kerr on Receivers, 162.) Equitable can not depend on possession. (Gratz v. Redd, 4 B. Mon. 184.) Receiver’s appointment gives no rights. (Story’s Eq. sec. 833; Sharp v. Carter, 3 P. Wms. 379; Tanfield v. Irvine, 2 Russ, 151; Douglass, &c. v. Cline, &c., 12 Bush, 608.) Fifth. Section 329 of the Civil Code extends rights of legal mortgagees, but does not restrict those of equitable. (Skinner v. Davis, 66 N. C. 45; Battle v. Davis, 76. 252; Penn v. Whitehead, 12 Grat. 74; Smith on Construction, sec. 508.) Sixth. Mortgagee has exclusively equitable rights and no legal rights under the Civil Code. (Brookover v. Hurst, 1 Met. 666; Brown v. Phillips, 3 Bush, 656; Hudson v. Stone, MS. Opinion.) Appointment of receiver in discretion of court. (Bouvier’s Law Die., “Discretion.”) Earnings pendente lite product of the court and of the property. Payment of employees necessary to retain them and profitably operate the road. The result is, present attaching claimants must show four things, to recover. Neither shows two of the four. 1. That a portion of the court’s share of the earnings is left. 2. That their payment is necessary to the profitable operation of the road pendente lite. Must then be entitled to payment under ordinary rulings, and show that something furnished on credit of mortgagees is unpaid, or that mortgagees have received some benefit they have paid no one for. If bound to pay for any thing, only the value of the benefit received, and that after an opportunity to elect. No foundation for the new heads — of equities of creditors without liens to be paid out of money in court, or of “Floating Equities” to be measured by their height. First. An offset can not be pleaded against a claim for taxes due the commonwealth. (Gen’l Statutes, sec. 4, p. 153, sec. 1, p. 740, sec. 17, p. 743, sec. 1, p. 744; Overseers of Amenia v. Overseers of Stanford, 6 Johns. 92-93; 3 S. Car. N. S. 394; 34 Penn. St. 239; 3 Met. 520; 41 Yt. 122; 39 Cal. 389.) Second. The commonwealth has a vendor’s lien for the payment of •$74,519.50 on the bond executed to the state by the Louisville & Frankfort Railroad Company under section 52 of the act of March 1, 1847. (Fish v. Howland, 1 Paige, 24-30; 1 Hilliard on R. P., p. 492, sec. 9 et seq.; Kleiser v. Scott, 6 Dana, 137; Burk v. Chrisman, 3 B. Mon. 50; Honoré v. Bakewell, 6 B. Mon. 67, 74; Woodward v. Woodward, 7 B. Mon. 116; Harrison, &c. v. Lex. & Ohio R. R. Co., 9 B. Mon. 472; Lou. & Frankfort R. R. Co. v. Brown, 17 B. Mon. 772; Sinking Fund Commissioners v. Northern Bank of Ky., 1 Met. 183; 1 Leading Ca. Eq., pp. 148-281; Cox v. Fenwick, 3 Bibb, 183; Thornton v. Knox’s ex’rs, 6 B. Mon. 74; Stewart v. Hutton, 3 J. J. Mar. 178; Ligón v. Alexander, 7 J. J. Mar. 288; Galloway v. Hamilton, 1 Dana, 576.) As to the history of the bond to the state, etc. (Acts 1832-3, p. 263; Acts 1837-8, p. 237; Acts 1839-40, p. 208; Acts 1840-41, p. 74; Act 1843, p. 50; Charter of Louisville & Frankfort R. R. Co., Act of March 1,1847; Charter of Lex. & Frankfort R. R. Co., Act of Feb’y 28, 1848.) Third. The state is not included in acts of the general assembly unless it is so stated in the act or unless it is plainly inferable that such was the intention of the legislature. (Commonwealth v. Cook, &e., 8 Bush, 220 ; Divine v. Harvie, 7 T. B. Mon. 443.) First. There are no words of survivorship in the mortgages as among the trustees. The heirs of deceased trustees hold the legal title and are not before the court; they are necessary parties. A chancellor will not sell a mere equitable title and compel the purchaser to take it. (Debell v. Foxworthy, 9 B. Mon. 231; Thornton v. Knox, 6 B. Mon. 74; Roney v. Bell, 9 Dana, 5.) Second. One half of the legal title, under the mortgage to Hawkins & Harrison, was in the heirs of Hawkins. Harrison, holding no bonds, had no legal capacity to sue. (B. & L. R. R. Co. v. Metcalfe, 4 Met. 199.) Third. The compensation provided for to the trustee in the mortgage to Douglass goes to the receiver or trustee, not both. There is no authority to sell the company’s property under this mortgage, if the past due interest is paid before the day of sale. No such right is reserved in the decree. Fourth. The Masonic Savings Bank and the Western Bank each held the bonds of the railroad company as collaterals, sold them under decree, and bought them at a nominal price, and thereby increased their debts threefold. These banks should not have been allowed to credit their judgments by the price paid for the bonds, nor allowed the costs incurred in the sale of them. Fifth. As to the attaching creditors generally and state and dty taxes— The rights of the company are intangible, and therefore not liable to levy, and are not taxed. Only the property is taxed. The company’s franchises are — 1. The right of succession; 2. The right to use the writ of ad quod damnum; and 3. The exclusiveness of its right to build and operate a railway between named points. These franchises can not be taken under execution or attachment. Rights and franchises may be alienated in the mode pointed out in the charter, but not otherwise. Sixth. The returns on the orders of attachment are not sufficient to create liens on any thing, except possibly the fund in court. Seventh. The earnings in the hands of the receiver since his appointment, and those earned but not collected before that date, were appropriated by the Lees mortgage before any of the attaching creditors had a debt. All earnings are by contract, and to meet the requirements of the public, to be appropriated in operating and repairs of the railway. No one can take any of the earnings while needed for these purposes. (2 Redfield on Railways, 537; G. & C. W. Railway v. Menzies, 26 111. 121.) Mghth. Attaching creditors have no right to a decree of sale. At best they can only claim a receiver and net earnings. (Winchester & Lex. Turnpike Road Co. v. Yimont, 5 B. Mon. 1; 2 Redfield on Railways, 552, 546, note 23; lb. 553; sec. 235 a.) Ninth. The sale sought in the decree is not the sale provided for in any of the mortgages, but these are suits for foreclosures and sales depending upon general chancery jurisdiction. This is certainly true as to all the mortgages preceding that to Green, and apparently true as to that and the succeeding ones. Such being the case, there can be no foreclosure or sale. (Bardstown R. R. Co. v. Metcalfe, 4 Met. 199; 2 Redfield, 507.) Tenth. There is no sufficient description of the property in the pleadings or decree upon which to have a fair sale for value or a valid sale. 1. No intimation is given as to the width of the right of way or the length or number of tracks. 2. There is no attempt at defining the extent or boundary of any tract of land owned, except a few acres at each end, while it is shown that the company does own other lands, such as depot grounds, station-houses, grounds, etc. 3. There is nothing to show where the company has a mere easement and where it owns the fee, either of which may be acquired under its charter. No advertisement can cure these defects, for the decree gives'the basis for the advertisement. Eleventh. Counsel fees are denounced as penalties. (Garr, &c. v. Louisville Banking Co., 11 Bush, 180; Rilling, &c. v. Thompson, 12 Bush, 310.) Twelfth. The chancellor has no jurisdiction to decree a sale on longer credits than allowed by law, and both sale and bonds taken would be void. No purchaser could hold his purchase at such a sale, if excepted to (Dunn, &e. v. Salter, &c. 1 Duvall, 347), and such a sale ought not to be allowed to take place, for the exception would certainly come. First. The fund in the hands of the receiver is not the subject of an attachment. (High on Receivers, sec. 151; Drake on Attachments, secs. 509 a, 458; Field v. Jones, &c., 11 Ga. 413; Taylor v. Gillean, 23 Texas, 514; Glenn v. Gill, 2 Md. 1; Nelson v. Conner, 6 Robinson (La.), 339; Taylor v. Carryl, 20 How. 584; Bishop of Winchester v. Payne, 11 Yesey, 195; Scott v. McMillen, 1 Littell, 302; Scott v. Coleman, 5 Mon. 73; Thoms v. Southard, 2 Dana, 475; Wickliffe’s ex’rs v. Breckinridge’s ' heirs, 1 Bush, 443; Edgell v. Haywood, 3 Atkyns, 357; Bullett v. Stewart, 3 B. Mon. 115; Parsons v. Meyburg, 1 Duvall, 206; Winchester & Lex. Turnpike Co. v. Vimont, 5 B. Mon. 1; Covington Draw-bridge Co. v. Shepherd, &c., 21 Howard. 112; White Water Valley Canal Co. v. .Vallette, 21 Howard, 414; Civil Code, secs. 328, 329.) Second. The appellees, the mortgagees, are entitled to the fund in the hands of the receiver, by virtue of their claim to the property from which the earnings were derived, the earnings being preserved for them by the action of the chancellor in appointing the receiver. (Keech v. Hall, 1 Smith’s L. Ca. 654; Kerr on Receivers, 40, 48, 50, 159, 161, 163; High on Receivers, p. 688; Tanfield v. Irvine, 2 Russell, 150; Cortleyeu v. Hathaway, 3 Stockton, 40; Warner v. Gouverneur’s ex’rs,. 1 Barb. S. C. R. 38; Bank of Ogdensburg v. Arnold, 5 Paige, 39; Shotwell v. Smith, 3 Edw. 6h. Rep. 588; Sea Ins. Co. v. Stebbins, 8 Paige, 566; Wiswall v. Sampson, 14 Howard, 64; Chase’s Case, 1 Bland Ch. 213; Post v. Dorr, 4 Edw. Ch. 414; Howell v. Ripley, 10 Paige, 44; Beverly v. Brooke, 4 Grattan, 208; White v. Bishop of Peterborough, 3 Swanston, 109; Davis v. Duke of Marlborough, 2 Swanston, 137; Langton v. Langton, 31 Eng. Law & Eq. 422; Parker v. Calcraft, 6 Maddox Ch. 15; Henshaw v. Wells, 9 Humph. (Tenn.) 568; Lofsky v. Mauger, 3 Sandf. Ch. 69; Brown v. N. Y. & Erie R. R., 19 How. Pr. 85; Denniston v. Chicago, Alton & St. Louis R. R. Co., 4 Bissel, 414; Walker v. Bell, 2 Maddox Ch. 352; Ellis v. Boston, Hartford & Erie R. R. Co., 107 Mass. 1.) Third. The attachments were unauthorized by law, the property and funds attached being in the hands of the court. Even if the attachments are valid, being sued out lis pendens, they must await the termination of the principal case, and can only affect such property or funds or such interest therein as the court would otherwise turn over to the railroad company. Fourth. Irrespective of the preceding propositions, as the appellees have mortgages upon the property which produced the earnings distributed by the judgment, and as the receiver was appointed upon their application and in a suit to which all the lien claimants were parties, both under the rule laid down in New York and that in Virginia and England, and according to the necessary signification of our Civil Code, these earnings must go to those holding claims upon such property, in the order of their priority. Green, Douglass, and Lees all have a special contract pledge of the earnings. Fifth. As to the appeals of the Newport & Cincinnati Bridge Co. and the Pittsburgh, Cincinnati & St Louis Railroad Co. The mortgages or deeds of trust to Green and Douglass embraced all future-to-be-acquired property of the mortgagor. A railroad company executing a deed of trust or mortgage, under legislative sanction, may include future-to-be-acquired property. (Phillips v. Winslow, 18 B. Mon. 431; Pennock v. Coe, 23 Howard, 127; Dunham v. Railway Co., 1 Wallace, 265; Coe v. Columbus Railway Co., 10 Ohio St. 373.) The one thousand bonds issued under the Douglass mortgage were authorized by law; five hundred by act of Feb. 8, 1870, and five hundred by act of March 21, 1870. The act authorizing the company to issue bonds “ bearing a rate of interest not exceeding eight per cent per annum, and having not more than thirty years to run,” did not mean that the interest should be made payable at the maturity of the bonds. (Maddox, &c. v. Graham & Knox, 2 Met. 80; Coe v. Columbus, Piqua & Indiana Railroad Co., 10 Ohio St. 396.) A provision for the precipitation of a debt bearing interest from the date of the obligation, and not having any future interest added to its face, is not a penalty, is enforceable, and equity does not relieve against it. (Valentine v. Van Wagner, 37 Barb. 60; Rubens v. Prindle, 44 Barb. 337; Ottawa New Plank Road Co. v. Murray, 15 111. 337; Robinson v. Loomis, 51 Pa. 78.) The contract between the railroad company and the bridge company does not attempt to create a lien on the property of the railroad company to secure the fulfillment of any of its obligations. That contract is not binding on the mortgagees, and the purchaser of the road should not be required to assume its obligations. (Dunham v. Isett, 15 Iowa, 291; Haven, &c. v. Adams, &e., 4 Allen, Mass. 80; Ellis v. Boston & Hartford R. Co., 107 Mass. 1-4.) Sixth. As to the appellant the Louisville Bridge and Iron Co., its claim for building an iron bridge for the railroad company is not entitled to any preference on the theory of “ conservation.” (Galveston R. R. Co. v. Cowdrey, 11 Wallace, 459; Dunham v. Railway Co., 1 Wallace, 254; Denniston v. Chicago, Alton & St. Louis R. R., 4 Bissel, 414; Brown v. Erie R. R. Co., 19 Howard, 85.) Seventh. As to the appellant the Western Bank. — The lien the bank acquired by its attachment was subsequent and inferior to that of the mortgages, because all the mortgages were in existence long before the bank sued. When a mortgagee gives a tenant of the mortgagor notice that he has determined his will as to the collection of the rents by the mortgagor, the tenant must pay over to the mortgagee all rent that has not been paid to the mortgagor, even if it be past due, or to fall due in future for a period of occupancy, part of which has transpired. (Moss v. Gallimore, 1 Douglass, 278; 1 Smith’s L. Ca. 843, and notes; Clark v. Abbott, I Md. Ch. 474; L., 0. & L. R. R. Co. v. Commonwealth, MS. Opinion, Oct. 12, 1875.) Eighth. The bond for $76,420.25, executed by the Louisville & Frankfort Railroad Co. to the commonwealth, under the act of March 1, 1847 (Acts 1847, p. 41), for the interest of the state in the road, binding said railroad company “ before each and every payment of dividends to the stockholders of said company shall be declared and made, to pay into the treasury” interest at the rate of six per centum per annum on said amount, was in effect simply a certificate of preferred stock in the railroad company. This bond is not secured by any-express lien, nor by a lien raised by implication. If the money was the consideration, then a vendor’s lien existed. If the covenant was the consideration, then the execution of the covenant was considered as payment, and there was no lien for its performance. (1 Smith’s L. C. in Eq., 235, Mackreth v. Symmons; Bucldand v. Pocknell, 36 Eng. Ch. Rep. 406; Dixon v. Gayfere, 21 Beaven, 625; Earl of Jersey v. Britton Ferry Floating Dock Co., L. R. Eq. 409; McCandlish v. Keen, 13 Grattan, 615; Parrott v. Sweetland, 3 Mylne & Keene, 655; 10 Eng. Ch. R. 348; in re Albert Life Assurance L. R., 11 Eq. 178. Ninth. As to the appeal of the Louisville, Cincinnati & Lexington Bail-road Company.- — The company being hopelessly insolvent, the sole question to be considered is, can the purchaser obtain a good title under the sale ordered by the judgment. The trustees can represent every interest, and are appointed for that purpose. (Civil Code, secs. 37, 577; General Statutes, p. 586, secs. 13, 14; Cahill v. Bigger, 8 B. Mon. 214; Galveston R. R. Co. v. Cowdrey, II Wall, 460; Griffith v. Burton, 5 Bush, 360.) As to the objection to the various attorneys’ fees allowed. This is certainly not a case coming within the principles of Thomasson v. Townsend, 10 Bush, 114. In a railroad trust-deed or mortgage there are three parties — the railroad company, the trustee, and the purchaser of the bonds. The trustee acts for the railroad company, and for the benefit of the bondholders also. Not deriving any benefit from the mortgage, nor from the purchase of the bonds, he has the right to decline to act until provision is made for compensation for his services and expenses incurred,'including reasonable compensation to his counsel, out. of the trust-estate. Tenth. As to appellant Goehran, the successor of Lees. 1. Conceding that the mortgages to Green and Douglass are plain mortgages of the corpus of the property, and that there is no express pledge in them of the earnings of the railroad before or after the default, yet, by the appointment of the receiver, the possession of the mortgagor was divested in favor of the mortgagee; and no contract of such mortgagor amounting to an assignment of earnings can have the effect thereafter — that is, a mortgagor, after the execution of a mortgage, has no control over the rents or earnings except for such time as he rightfully remains in possession. The right of disposition ceases on the mortgagees taking possession or having a receiver appointed. (The Syracuse Bank v. Tallman, 31 Barb. —; Howell v. Ripley, 10 Paige, 43; Astor v. Turner, 11 Paige, 337; Lofsky v. Mauger, 3 Sandford, 69; New York Life Ins. Co. v. Glass, 50 How. Pr. 88; Finch’s adm’r v. Houghton, 19 Wisconsin, 370.) So also a receiver may be appointed over a tenant of the mortgagor (Keep v. R. R. Co., 6 Chicago Legal News, 101), and that too even where he has paid rent in advance. (Henshaw v. Wells, 9 Humphrey, Tenn. 568.) The Civil Code gives the mortgagee the right to his receiver. (Sec. 229; Huston, Johnson, &c. v. Stone, MS. Opinion, 1876, and Douglass, &c. v. Cline, &c., 12 Bush, 608.) The appointment of a receiver by an equitable mortgagee is an equitable ejectment. Douglass, &c. v. Cline, &c., 12 Bush, 608; Hill v. Robertson, 24 Miss. 375.) A mortgage including tolls amounts to nothing as to such tolls until possession taken, or, at least, demand made. (Galveston R. R. Co. v. Cowdrey, 11 Wallace.)
75 Ky. 723Foard v. McComb (1877)
Case 55 — PETITION OEDINAEY APPEAL FROM CHRISTIAN CIRCUIT COURT. The appellee obtained the money in controversy in this case by false and fraudulent representations, and is therefore liable. (Kerr on Fraud and Mistake, pp. 56, 57; 1 Story’s Equity, sec. 193.)
75 Ky. 727McNeil v. Commonwealth (1877)
Case 56 — INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. The Louisville City Court had original exclusive jurisdiction of all indictable misdemeanors committed in the city. “An act regulating the jurisdiction of the Circuit Court for the Ninth Judicial District,” approved Feb. 23, 1876, conferred jurisdiction upon the Jefferson Circuit Court over indictable misdemeanors committed within said city, etc., as set forth in the act, which is partly copied in the opinion of the…