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[^-'/- 


I 


HARVARD   LAW  LIBRARY 


R=«iv«i  :Ar  1  ^  1912 


1 


\'b\ 


KENTUCKY  OPINIONS 


CONTAINING  THE 


UNREPORTED  DECISIONS 


OF  THE 


COURT   OF   APPEALS 


COMPILED  BY 

J.  MORGAN  CHINN 

Ex-Qerk 


Under  the  Supenritioii  of 

J.  K.  Roberts,  Esq.,  of  the  Kentucky  Bar 


VOL.  VIII. 
From  June  18,  1874,  to  December  16,  1876 


INDIANAPOLIS 
THE  BOBBS-MERRILL  COMPANY 

1912 


CITE  THIS  VOLUME 


8  Ky.  Opin. 


FOLLOWED  BY  PAGE 


OOPTBIOHT  191S 

BY 

THE  BOBB8-MEBBILL  CK)MPAMY 


•j'^AY  14  mi 


TABLE  OF  CASES 


Abell  V.  Cartmell 562 

Abert  v.  Berry 343 

Abrams  v.  Ullman 8 

Adams  v.  Collier 323 

Adams  v.  Delcfaer 583 

Adams,  Boyd  v 553,  647 

Adams  Express  Co.  v.  Goodloe 182 

Adams  Express  Co.  v.  Guthrie 454 

Adams,  Gtmi  v 403 

Adams,  Paducah  Gulf  Railroad  Co.  v 100 

Aden,  Nahm  v 82 

Aetna  Insurance  Co.  v.  Bums 219 

Albert  v.  Harris 619 

Alexander,  Gormley  v 45 

Alexander,  Jones  v 816 

Alexanders,  Forsythe  v 486 

Alford,  Hatcher  v 719 

Allard,  Commonwealth  v 727 

Alien  V.  Smith  84 

Allin  V.  Robinson's  Ex'r 478 

Alves  V.  City  of  Henderson 451 

Ament's  Adm'r,  McLeod's  Adm'r  v 151 

Anderson  v.  Grady 624 

Anderson,  Conn  v.  223 

Anderson,  Lusks  v 266 

Apperson,  Fox  v 233 

Ard  V.  Burton 180 

Armstrong  v.  Reynolds 169 

Arnold  v.  Maxwell 355 

Arnold  v.  Smith 494 

Asby,  Clair  v 894 

Ashby,  Murphy  v 861 

Aulick  V.  Fishback 457 

Avery  v.  Elder 623 

Avoid,  McLaughlin  v 256 

Aycr  V.  Waltrip's  Adm'r 453 

... 
ni 


IV  TABLE  OF  CASES. 

Bacon  v.  Rudd  742 

Bailey  v.  Lykins 205 

Bailey,  Mitchell  v 774 

Bailey's  Adm'r  v.  Thompson 280 

Baker  v.  Kentucky  University 317 

Baker  v.  Tandy 701 

Baker,  City  of  Lexington  v 317 

Baker,  Ellis  v 175 

Bamberger,  Haydon  v 501 

Bank  of  Columbia  v.  Bush 762 

Bank  of  Kentucky,  Talbott  v 480 

Bank  of  Louisville,  Dobbs  v 239 

Bank  of  Louisville,  Stockton  v 171 

Bank  of  Monticello,  Huffaker  v 694 

Bank  of  Rome,  Morgan  v 812 

Barksdale's  Adm'x,  Harrison  v 277 

Barnard  v.  Commonwealth 760,  764 

Barnes,  Griffin's  Ex'r  v 783 

Barn's  Adm'r,  Boone  v 456 

Barr  v.  Jenkins 530 

Barren  County  Court,  C.  &  O.  R.  Co.  v 406 

Barret  v.  Mossie 528 

Barrett,  Taft  v : 395 

Barr,  Kentucky  Improvement  Company  v 30 

Beaker,  Griffith  v 246 

Beard,  Minton  v 630 

Beatty,  Mays  v 46 

Belknap  v.  Robinson 283 

Bell  V.  Bryant 309 

Bell's  Assignee  v.  Merriwcather 699 

Benjamin,  Dent  v 14 

Bennett  v.  Smith's  Adm'r 202 

Bennett,  Henry  v 57 

Berry  v.  Commonwealth 856 

Berry,  Abert  v 343 

Berry,  Routt's  Adm'r  v 420 

Berry,  Smith  v 795 

Best  V.  Jefferson 829 

Bidwell  V.  Fackler 97 

Black  V.  Walker 85 

Blackerter  v.  Commonwealth 541 


TABLE  OF  CASES.  V 

Blackwell  v.  Hunter  i68 

Blackwell,  Huston  v 439 

Blakey,  Hunt  v 822 

Board,  Buckley  v 16 

Board  of  Councilmen  of  Uniontown  v.  David 183 

Board  of  Trustees  of  Columbia  v.  Curd 460 

Board  of  Trustees  of  Harrodsburg,  Johnson  v 678 

Bolin,  Haynes  v 133 

Booker,  Heinrich  v 811 

Boone  v.  Barn's  Adm'r 456 

Boone  v.  Hardwicke's  Adm'r ; .  456 

Boothe  V.  Shrout's  Adm'r 61 

Boren,  Butt  v 832 

Bortman  v.  Giles 770 

Botts  V.  Commonwealth 37 

Boulware  v.  Louden 93 

Boulware,  Henderson  v 93 

Boulware,  Louden  v 93 

Bowles  V.  Watkins 207 

Bowling  Green,  City  of  v.  Mitchell 849 

Bowman  v.  McBrayer 15 

Bowman,  Bristow  v 448 

Bowman,  Dulaney  v 592 

Boyd  V.  Adams 553,  647 

Boyd  V.  Thomas 460 

Bradley  v.  Commonwealth 599 

Bradley,  Edelin  v 129 

Bradly,  Drake  v 426 

Brame,  Craig  v 163 

Bramel,  Bramel's  Adm'r  v 614 

Bramel's  Adm'r  v.  Bramel 614 

Branham  v.  Commonwealth 581 

Bratton,  Thompson  v 609 

Breeze,  Marsh  v 229 

Brent  v.  SinviUe 781 

Brewer  v.  Mercke 322 

Bridgeford  v.  Burbank 872 

Bridgford  v.  Manhattan  Fire  Insurance  Co 294 

Bristow  V.  Bowman 448 

Broaddus  v.  Easter 537 

Brotzge,  Louisville  City  R.  Co.  v 556 


VI  TABLE  OF  CASES. 

Brown  v.  Schuler 311 

Brown,  Commonwealth  v 573 

Brown's  Adm'r,  Louisville  &  Nashville  R.  Co.  v 548 

Bruce  v.  Carlisle 859 

Bryan,  McAllister  v 440 

Bryant,  Bell  v 309 

Bryant,  National  Bank  of  Monticello  v J2rj 

Buckley  v.  Board 16 

Buckley  v.  Wakefield 283 

Buddy  V.  Phipps 176 

Buford  V.  Taylor 98 

Burbank,  Bridgcford  v , 872 

Burbanks  v.  Burbanks 113 

Burberidge's  Committee,  Rogers  v 61 1 

Burbridge  v.  Vamon's  Ex'r 87 

Burden  v.  Throckmorton 299 

Burkhart,  Vaughan's  G'd'n  v 516 

Burns,  Aetna  Insurance  Co.  v 219 

Burschulz,  Commonwealth  v 471 

Burton,  Ard  v 180 

Burton,  Underwood  v 462 

Bush  V.  Quissenberry 715 

Bush,  Bank  of  Columbia  v 762 

Butt  V.  Boren  832 

Caigill,  Melton  v 234 

Caldwell  v.  Caldwell 434 

Caldwell  v.  Trustees  of  Town  of  Shelbyville 842 

Calhoun  v.  Lee 527 

Calvin,  Smith's  G'd'n  v 808 

Campbell  v.  Irvine 797 

Campbell,  McManama  v 586 

Campbell,  Stafford  v 533 

C.  &  O.  R.  Co.  V.  Barren  County  Court 406 

Cantrill  v.  Poor  389 

Cantrill,  Current  v 546 

Carey,  Tilman  v 336 

Carlisle,  Bruce  v 859 

Carrico  v.  Greenwell  293 

Carroll  y.  Collins 444 

Carroll,  Flynn  v 656 


TABLE  OF  CASES.  Vll 

Carter  v.  Norwood's  Adm'r i66 

Carter,  Glover  v 675 

CartmcU,  Abell  v 562 

Cassell's  Heirs  v.  Gazello's  Ex'r 384 

Castleman,  Lexington,  Louisville  &  Cincinnati  R.  Co.  v 883 

Castleman,  Louisville,  Cincinnati  |&  Lexington  R.  Co.  v 398 

Castleman,  Milton  v 258 

Castleman,  Porter's  Adm'r  v 19 

Cate  V.  Rouse 77^^ 

Cates,  Green  v IS9 

Chamberlin  v.  Young 214 

Chelf,  Mills  v <fi^ 

Choice  V.  King 115 

Chorn,  Stevens  v 679 

Christian,  Staton  v , 785 

City  of  Bowling  Green  v.  Mitchell 849 

City  of  Covington  v.  Furber 613 

City  of  Covington,  Davis  v 352 

City  of  Covington,  Shinkle  v 227 

City  of  Frankfort,  Saffell  v 584 

City  of  Henderson,  Alves  v 451 

City  of  Hopkinsville,  Pelton  v 590 

City  of  Lexington  v.  Baker 317 

City  of  Louisville  v.  Hall 327 

City  of  Louisville,  Slaughter  v 24 

City  of  Louisville,  Vaughan's  G'd'n  v 516 

City  of  Newport  v.  Timberlake 483 

City  of  Paducah  v.  Craig 358 

City  of  Paducah  v.  Jones's  Adm'x 61,  809 

City  of  Paducah  v.  Kahn 35 

Qaflin,  Pace  v 706 

Clark  V.  Elnoch 341 

Clark  V.  Lee's  Assignee 882 

Clark  V.  Tucker 409 

Clark,  Maze  v 679 

Qaybrook,  Phillips  v 801 

Qcary  v.  OfFutt 691 

Qemmens  v.  Council 301 

Clemments  v.  Green 803 

Qemmons  v.  Connell 388 

Clemmons  v.  Moore 292 


viii  TABLE  OF  CASES. 

Clouch,  Morrow  v 73 

Cochran  v.  Hays 5^3 

Cockrell  v.  Hainline's  Adm'x 225 

Cocoughner  v.  Commonwealth 55^ 

Colley,  Orr  V 79^ 

Collier,  Adams  v 323 

Collins,  Carroll  v 444 

Collins,  Graves  v 667 

Collins,  Ready  v. 149 

Combs,  Crawford  v 200 

Combs,  Woolley  v 103 

Commonwealth  v.  Allard 72,y 

Commonwealth  v.  Brown 573 

Commonwealth  v.  Burschulz , 471 

Commonwealth  v.  Cooney   900 

Commonwealth  v.  DePane 243 

Commonwealth  v.  Hardin 724 

Commonwealth  v.  Lott 573 

Commonwealth  v.  May 573 

Commonwealth  v.  Norton 47^ 

Commonwealth  v.  Taylor  105 

Commonwealth  v.  Turrell 730 

Commonwealth  v.  Vanmeter 754 

Commonwealth  v.  Wainscott 7^3 

Commonwealth,  Barnard  v 760,  764 

Commonwealth,  Berry  v 856 

Commonwealth,  Blackerter  v 54^ 

Commonwealth,  Botts  v 37 

Commonwealth,  Bradley  v 599 

Commonwealth,  Branham  v 581 

Commonwealth,  Cocoughner  v 551 

Commonwealth,  Cox  v 479 

Commonwealth,  Crutcher  v 282 

Commonwealth,  Dudley  v 356 

Commonwealth,  Field  v 305 

Commonwealth  for  Satterly  v.  Demaree ii 

Commonwealth,  Grimes  v 741 

Commonwealth,  Hammonds  v 796 

Commonwealth,  Harpending  v 245 

Commonwealth,  Harris  v 51 

Commonwealth,  Ha)rwood  v 80 


TABLE  OF  CASES.  IX 

Commonwealth,  Highly  v 579 

G)mmonwealth,  Kramer  v 428 

Commonwealth,  Louisville  &  Nashville  R.  Co.  v 309 

Commonwealth,  McFall  v 236 

Commonwealth,  McGlashen  v 237 

Commonwealth,  Martin  v 400,  496,  853 

Commonwealth,  Maxey  v 251 

Commonwealth,  Miles  v 385 

Commonwealth,  Minnis  v 495 

Commonwealth,  Mutual  Life  Ins.  Co.,  Curd  v 815 

Commonwealth,  O'Daniel  v 125 

Commonwealth,  Realy  v 759 

Commonwealth,  Rouse  v 606 

Commonwealth,  Shipp  v 652 

Commonwealth,  Smithers  v 574 

Commonwealth,  Stevens  v 800 

Commonwealth,  Taylor  v 401 

Commonwealth,  Waddle  v 577 

Commonwealth,  Wainscott  v 639 

Conn  V.  Anderson 223 

Connell,  Clemmens  v 301 

Connell,  Clemmons  v 388 

Cooke  v.  Trustees  of  Winchester 442 

Code,  Hoskins  v 851 

Cooney,  Commonwealth  v 900 

Cooper  V.  Thomas 368 

Cooper,  Lieber  v 782 

Cosby  V.  Fenlock 135 

Courtney,  Wehrley  v 523 

Covington  v.  Scott 138 

Covington  v.  Shanklin 346 

Covington,  City  of  v.  Furber 613 

Covington,  City  of,  Davis  v 352 

Cox  V.  Commonwealth 479 

Cox,  Vanderg^ft  v 334 

Coy  V.  Munier 677 

Crabtree  v.  Rosenfield 125 

Craddock,  Walker  v 281 

Craig  V.  Brame 163 

Craig,  City  of  Paducah  v 358 

Crawford  v.  Combs 200 


X  TABLE  OF  CASES. 

Creason  v.  Harrington 4S 

Crenshaw,  Croan  v 745 

Croan  v.  Crenshaw 745 

Cronnie  v.  Monsh 340 

Crow,  Hardwick  v 394 

Crum,  Rudwig  v 192 

Crutcher  v.  Commonwealth 282 

Cumberland  &  Ohio  R.  Co.  v.  Barren  County  Court 406 

Cumberland  &  Ohio  R.  Co.,  Russell  v 344 

Cundiff  V.  CundiflF 691 

Cunningham,  Ross  v 793 

Curd  V.  Commonwealth  Mutual  Life  Ins.  Co 815 

Curd,  Board  of  Trustees  of  Coltmibia  v 460 

Curie,  Roberts  v 123 

Current  v.  Cantrill 546 

Curry,  Overby  v 262 

Daniel  v.  Steerman 663 

Daniels  v.  Dockery 668 

Darnell,  Howe's  G'd'n  v 270 

Davenport  v.  Underwood 665 

David,  Board  of  Councilmen  of  Uniontown  v 183 

Davis  V.  City  of  Covington 352 

Davis  V.  Gault 28 

Davis,  Mississippi  Cent.  R.  Co.  v 5^4 

Davis,  Starts  &  Co.,  Scott  v 25 

Dean  v.  Meter 746 

Deaner  v.  Storme 56 

Dedman  v.  Scarce 393 

Dehaven,  HuflF  v 633 

Delcher,  Adams  v 583 

Delph  V.  Hewitt 847 

Demaree,  Commonwealth  for  Satterly  v 1 1 

Denny  v.  Miller 144 

Dent  V.  Benjamin 14 

DePane,  Commonwealth  v 243 

Dimmit  v.  Fleming 78 

Dixon  V.  Wallace 276 

Dobbs  V.  Bank  of  Louisville 239 

Dockery,  Daniels  v 668 

Dodd  V.  Rynearson's  Adm'r 672 


TABLE  OF  CASES.  XI 

Dorsey  v.  Sears 605 

Dorsey,  Duncan  v 379 

Douglass  V.  Stone 669 

Downs,  Southern  Mutual  Life  Ins.  Co.  v 879 

Drake  v.  Bradly 426 

Dry,  Vanarsdale  v 54 

Duck,  Hoolbrook  v 40 

Dudley  v.  Commonwealth 356 

Duerson  v.  Gardner 350 

Dugan's  Adm'r,  Murrell  v 864 

Dulaney  v.  Bowman 592 

Duncan  v.  Dorsey 379 

Duncan  v.  Griffy 610 

Duncan  v.  Madison  County  Court 837 

Duvall,  Sanders's  Assignee  v 642 

Early,  Mills  v no 

Easter,  Broaddus  v 537 

Eastern  Kentucky  R.  Co.  v.  Gholscxi 279 

Edelin  v.  Bradley 129 

Edwards  v.  Edwards 66i 

Edwards,  Howell  v 63 

Elder,  Avery  v 623 

Elizabeth,  Lexington  &  Big  Sandy  R.  Co.  v.  Prewitt 654 

Elizabethtown  &  Paducah  R.  Co.,  Weir  v. 705 

Elliott,  Tate  v 806 

Ellis  V.  Baker 175 

EUiston,  Hoggins  v 328 

Endrick  v.  Karlin 818 

English's  G'd'n  v.  English ' 820 

Enoch,  Clark  v. 341 

Eubank,  Smith  v 780 

Evans  v.  Ryan 720 

Fackler,  Bidwell  v 97 

Farmer  v.  Howard 582 

Farmer,  Gill  v 770 

Farmer,  Jessie  v 291 

Farmers'  Bank  of  Kentucky  v.  Louisville,  Cincinnati  &  Lexing- 
ton R.  Co 755 

Farmers'  Bank  of  Kentucky,  Trimble  v 186 


Xll  TABLE  OF  CASES. 

Farris's  Ex'r  v.  Rowland 819 

Farr,  Payne  v 179 

Fenlock,  Cosby  v 135 

Field  V.  Commonwealth 305 

Field  V.  Smith 821,  843 

Field,  Hiatt  v 740 

Field,  Porter  v 72 

Finley  v.  Russell 36 

Finnell  v.  VanArsdall 416 

First  Nat.  Bank  of  Franklin,  Wade  v 518 

Fishback  v.  Sullivan 423 

Fishback,  Aulick  v 457 

Flannigan,  O'Daniel  v 173 

Fleming,  Dimmit  v 78 

Flemingsburg  &  Poplar  Plains  Turnpike  Road  Co.,  Stoddard  v.  509 

Florence,  Moore  v 2 

Flynn  v.  Carroll 656 

Fogle  V.  Fogle's  Ex'r 411 

Foreman  v.  Grinstead \ 659 

Forman,  Webb  v 697 

Forsythe  v.  Alexanders 486 

Fortney  v.  Moore 288 

Fox  V.  Apperson 233 

Fox  V.  Tipton 413 

Frankfort,  City  of,  Saffell  v.  . .' 584 

Franklin,  Wills  v 185 

Frazer  v.  Merrell 33 

Freeman  v.  Levi i 

Froman,  Raymond's  Ex'r  v 60 

Fuller  V.  Louisville  Gas  Co 469 

Funk  V.  Miller 121 

Furber,  City  of  Covington  v 613 

Gaddis  v.  Ramsey 65 

Gaither,  Miller  v 250 

Gale,  Saunders  v 500 

Gard,  Greer  v 313 

Gardner  v.  Hays 76 

Gardner  v.  Williams 50 

Gardner,  Duerson  v 350 

Gardner,  Montgomery  v no 


'    TABLE  OF  CASES.  Xlii 

Garrison's  Devisees,  Hawes  v 261 

Garrison,  Wingate  v 189 

Garvin  v.  Showdy  142 

Gault,  Davis  v 28 

Gazello's  Ex'r,  Cassell's  Heirs  v 384 

Geoghegan's  Ex'r  v.  Hillson 787 

Gholson,  Eastern  Kentucky  R.  Co.  v 279 

Gibson  v.  Marples 497 

Gibson,  Grover  &  Barker  Sewing  Mach.  Co.  v 361 

Giles,  Bortman  v 770 

Gill  V.  Fanner 770 

Girvin,  Manzey  v 370 

Glinn,  Thompson  v 886 

Glover  v.  Carter 675 

Godsay,  Williams  v 210 

Goodaker,  Jenkins  v 252 

Goodloe,  Adams  Express  Co.  v 182 

Gordon,  Settle's  Adm'r  v 775 

Gorman  v.  Gorman  767 

Gormley  v.  Alexander 45 

Grady,  Anderson  v 624 

Graham  v.  Graham 738,  763 

Graham  v.  Moore 271 

Graves  v.  Collins 667 

Graves  v.  Harris 682 

Graves,  Jackson  v 380 

Green  v.  Gates 159 

Green  v.  Smith's  Trustee 673 

Green  v.  Whalley 240 

Green  v.  Wilson 636 

Green,  Qemments  v 803 

Greenwell,  Carrico  v 293 

Greer  v.  Gard 313 

Greer  v.  Warburton's  Ex'r 362 

Griffin's  Ex'r  v.  Barnes 783 

Griffith  V.  Beaker 246 

GrifFy,  Duncan  v 610 

Grimes  v.  Commonwealth 741 

Grinstead,  Foreman  v 659 

Grover  &  Barker  Sewing  Mach.  Co.  v.  Gibson 361 

Grover,  Trabue  v 'jj 


XIV  TABLE  OF  CASES.    • 

Guilfoyle,  Hume  v 847 

Gum  V.  Adams 403 

Guthrie,  Adams  Express  Co.  v 454 

Hackworth  v.  Thompson 585 

Haggerty,  Leiber  v 136 

Hainline's  Adm'x,  Cockrell  v 225 

Hall  V.  Hamilton 208 

Hall  V.  Harris's  Adm'r 831 

Hall  V.  Lebanon  &  Maysville  Tpk.  Co 476 

Hall,  City  of  Louisville  v 327 

Hallement,  Osborne  v 12 

Hall,  Hickman  v 641 

Hall,  Louisville  &  Nashville  R.  Co.  v 690 

Hamilton,  Hall  v 208 

Hamilton,  Vassam  v 842 

Hammonds  v.  Commonwealth 796 

Hampton's  Assignee,  Jones  v 889 

Hampton,  Wilson  v 442 

Hancock  v.  Rice 826 

Hancock,  Sutton  v 359 

Hanlon  v.  Hanlon 724 

Hanna's  Adm'r  v.  Hanna's  Adm'r 153 

Hanser,  Henning  v 748 

Hanson  v.  Lea 162 

Hardin,  Commonwealth  v 724 

Hardin  County  Court  v.  Lowe 655 

Hardin,  Harlan  v 587 

Hardwick  v.  Crow 394 

Hardwick's  Adm'r,  Boone  v 456 

Harlan  v.  Hardin 587 

Harlan,  Long  v 238 

Harmon  v.  Higgins  259 

Harpending  v.  Commonwealth 245 

Harrington,  Creason  v 48 

Harris  v.  Commonwealth 51 

Harris  v.  Hollowings's  Ex'r 360 

Harris  v.  Honaker 287 

Harris  v.  Prather 799 

Harris,  Albert  v 619 

Harris,  Graves  v 682 


TABLE  OF  CASES.  XV 

Harris,  Kaiber  v 348 

Harrison  v.  Barksdale's  Adm'x 2rjy 

Harrison's  Trustees  v.  Kuntz 688 

Harrison,  Waller's  Adm'r  v 717 

Harris's  Adm'r,  Hall  v 831 

Hart  V.  Mattingly 404 

Haskamp's  Ex'x  v.  Walker 417 

Haskead  v.  Mallory 53 

Hatcher  v.  Alford 719 

Hatcher,  Mosby  v. 10 

Hatfield,  Milner  v 536 

Hawes  v.  Garrison's  Devisees 261 

Hay  V.  Hunter 786 

Hayden's  Adm'r,  White  v 498 

Haydon  v.  Bamberger 501 

Haynes  v.  Bolin 133 

Hays  V.  Twyman 473 

Hay5,  Cochran  v 503 

Hays,  Gardner  v 76 

Hays,  Sanderson  v 353 

Haywood  v.  Commonwealth 80 

Hazelrigg  v.  McGuire ! 74 

Heinrich  v.  Booker 811 

Hemphill,  Sparks  v 543 

Henderson  v.  Boulware 93 

Henderson,  City  of,  Alves  v 451 

Henderson,  Keeber  v 552 

Henning  v.  Hanser 748 

Henninger  v.  Henninger 627 

Henry  v.  Bennett 57 

Herrel  v.  Porter 265 

Hewett  V.  Louisville  &  Nashville  R.  Co 422 

Hewitt  V.  Richart 664 

Hewitt,  Delph  v 847 

Hiatt  V.  Field 740 

Hibbard  v.  Watson 461 

Hickman  v.  Hall 641 

Higgins  V.  Powell 768 

Higgins,  Harmon  v 259 

Highly  V.  Commonwealth 579 

Hillson,  Geoghegan's  Ex'r  v 787 


XVI  TABLE  OF  CASES. 

Hines  v.  McCormick , 123 

Hoggins  V.  Elliston 328 

Hollowings's  Ex'r,  Harris  v 360 

Holt,  Owens  v 94 

Honaker,  Harris  v 287 

Hoolbrook  v.  Duck 40 

Hopkinsville,  City  of,  Pelton  v 590 

Hosick  V.  Trabue 805 

Hoskins  v.  Cook 851 

Houston,  Kidwell  v 386 

Howard,  Farmer  v 582 

Howard,  Jewell  v 107 

Howell  V.  Edwards , 63 

Howe's  G'd'n  v.  Darnell 270 

Hudson  V.  Hudson 632 

Hudson  V.  Stone 844 

Huff  V.  Dehaven 633 

Huffaker  v.  Bank  of  Monticello *  694 

Huffman's  Adm'r,  Shaugherssey  v 713 

Huffstetter  v.  Moore 286 

Hulings  V.  McDowell 364 

Hulings  V.  Martin 320 

Hume  V.  Guilfoyle 487 

Hume  V.  White's  G'd'n 651 

Humphrey,  Owen  v 324 

Hunt  V.  Blakey 822 

Hunter,  Blackwell  v 168 

Hunter,  Hay  v 786 

Hunt,  Kanawha  &  Ohio  Coal  Co.  v 178 

Huston  V.  Blackwell 439 

Huston  V.  Strow 603 

Hutchinson  v.  Jett 160 

Igo,  Vallandingham  v 427 

Irvine,  Campbell  v 797 

Jackson  v.  Graves 380 

Jackson,  Kimbley  v 657 

Jackson,  Upshaw  v 140 

Jackson,  Vinegar  v 304 

Jacoby  v.  Neal 647 


TABLE  OF  CASES.  XVll 

Jaquett,  Kanapka  v 206 

Jefferson,  Best  v * 829 

Jenkins  v.  Goodaker 252 

Jenkins,  Barr  v 530 

Jessie  v.  Farmer 291 

Jett,  Hutchinson  v 160 

Jewell  V.  Howard ; 107 

Johnson  v.  Board  of  Trustees  of  Harrodsburg 678 

Johnson  v.  Rodes 846 

Johnson's  Adm'r,  Louisville  City  R.  Co.  v 511 

Johnson,  Savings  Institution  of  Harrodsburg  v 489 

Johnston,  Snoddy  v 107 

Jones  V.  Alexander 816 

Jones  V.  Hampton's  Assignee 889 

Jones  V.  Thompson 703 

Jones's  Adm'r  v.  Shy's  Adm'r 890 

Jones's  Adm'x  v.  City  of  Paducah 61,  809 

Jones,  SalcMnan  v 132 

Jones's  Heirs  v.  Jones 285 

Jones,  Small's  Adm'r  v 852 

Judy  V.  Swinney 156 

Kahn,  City  of  Paducah  v 35 

Kaiber  v.  Harris 348 

Kale,  Wingate  v 189 

Kanapka  v.  Jaquett 206 

Kanawha  &  Ohio  Coal  Co.  v.  Hunt 178 

Karlin,  Endrick  v 818 

Keeber  v.  Henderson 552 

Kelly  V.  Kelly 268 

Kentucky  Improvement  Company  v.  Barr 30 

Kentucky  University,  Baker  v 317 

Kester  v.  Whitaker 499 

Kidwell  V.  Houston 386 

Kimbley  v.  Jackson  '. 657 

Kimbly,  Rudd  v 790 

King,  Choice  v 115 

Kinser  v.  Robertson 626 

Kirk  V.  Reynolds 419 

Klair  v.  Asby 894 

Kramer  v.  Conmionwealth 428 

Kuntz,  Harrison's  Trustees  v 688 


XVIU  TABLE  OF  CASES. 

Lacy,  May  v 540 

Lambert  v.  Smith i 700 

Larder,  Schmidt  v 433 

Lea,  Hanson  v 162 

Lebanon  &  MaysviUe  Tpk.  Co.,  Hall  v 476 

Lee,  Calhoun  v 527 

Lee's  Adm'r,  Mattingly  v 215 

Lee's  Assignee,  Clark  v 882 

Leet  V.  Robertson 638 

Leiber  v.  Haggerty 136 

Lentz  V.  Louisville  &  Jefferson  County  Association 332 

Lesly  V.  Minos  758 

Levi,  Freeman  v i 

Lewis  V.  Richards 209 

Lexington,  City  of  v.  Baker 317 

Lexington,  Louisville  &  Cincinnati  R.  Co.  v.  Castleman 883 

Licking  River  Lumber  &  Mining  Co.,  Turner  v 539 

Lieber  v.  Cooper 782 

Lieber  v.  Wilson 438 

Lillard,  Stephenson  v 466 

Littlefield  v.  Zanone 695 

Littlefield,  Wools  worth  Handle  Works  v 367 

Little,  Mark  v 187 

Livingston  County  Court  v.  Piles 884 

Long  V.  Harlan 238 

Long  V.  Spillman 140 

Lott,  Commonwealth  v 573 

Louden  v.  Boulware 93 

Louden,  Boulware  v 93 

Louisville  &  Jefferson  County  Association,  Lentz  v 332 

Louisville  &  Nashville  R.  Co.  v.  Brown's  Adm'r 548 

Louisville  &  Nashville  R.  Co.  v.  Commonwealth 309 

Louisville  ,&  Nashville  R.  Co.  v.  Hall 690 

Louisville  &  Nashville  R.  Co.  v.  May 1 16 

Louisville  &  Nashville  R.  Co.  v.  Sanders 568 

Louisville  &  Nashville  R.  Co.  v.  Wade 568 

Louisville  &  Nashville  R.  Co.  v.  Wilkerson 671 

Louisville  &  Nashville  R.  Co.,  Hewett  v 422 

Louisville  Benevolent  &  Relief  Association,  Smith's  Adm'r  v.. .  152 

Louisville,  Cincinnati  &  Lexington  R.  Co.  v.  Castleman 398 


TABLE  OF  CASES.  XIX 

Louisville,  Cincinnati  &  Lexington  R.  Co.,  Farmers'  Bank  of 

Kentucky  v 755 

Louisville,  Cincinnati  &  Lexington  R.  Co.,  Sleet  v 447 

Louisville,  City  of  v.  Hall 327 

Louisville,  City  of.  Slaughter  v 24 

Louisville,  City  of,  Vaughan's  G'd'n  v 516 

Louisville  City  R.  Co.  v.  Brotzge 556 

Louisville  City  R.  Co.  v.  Johnson's  Adm'r 511 

Louisville  City  R.  Co.  v.  Saltmarsh 856 

Louisville  Gas  Co.,  Fuller  v 469 

Louisville  Soap  Mfg.  Co.  v.  Richardson 437 

Lowe,  Hardin  County  Court  v 655 

Lowney,  Stinnet  v 263 

Lunsford  v.  Stamper 538 

Lusks  V.  Anderson 266 

Lykins,  Bailey  v 205 

Lynn  v.  Lynn 70 

Lynn,  Russell  v 192 

McAllister  v.  Bryan 440 

McBrayer,  Bowman  v 15 

McCame's  Adm'r  v.  McCame's  Adm'r 554 

McCarley's  Ex'r  v.  Perkins 493 

McCay,  McSwinney's  Adm'x  v 491 

McCormick,  Hines  v 123 

McDowell,  Hulings  v 364 

McFall  v.  Commonwealth 236 

McGlashen  v.  Commonwealth 237 

McGrewder,  Ratcliffe  v 766 

McGuire  v.  McGuire 253 

McGuire,  Hazelrigg  v 74 

McKay  v.  Sutherland 771 

McLaughlin  v.  Avoid 256 

McLeod's  Adm'r  v.  Ament's  Adm'r 151 

McLure  v.  Wolfe 315 

McManama  v.  Campbell 586 

McRoberts,  Murphy  v 622 

McSwinney's  Adm'x  v.  McCay 491 

Madison  County  Court,  Duncan  v 837 

Magill  V.  Watson 133 

Major  V.  Williams  117 


XX  TABLE  OF  CASES. 

Mallory,  Haskead  v S3 

Manhattan  Fire  Insurance  Co.,  Bridgford  v 294 

Manzey  v.  Girvin 370 

Mark  v.  Little 187 

Marples,  Gibson  v 497 

Marsh  v.  Breeze 229 

Marshall  v.  Meyer  17 

Martin  v.  Commonwealth 400,  496,  853 

Martin  v.  Martin 308 

Martin  v.  Shelby 601 

Martin  v.  Taylor's  Adm'r 559 

Martin,  Hulings  v 320 

Martin,  Turner  v 158 

Mattingly  v.  Lee's  Adm'r 215 

Mattingly  v.  Mattingly y^j 

Mattingly  v.  Sims 886 

Mattingly,  Hart  v 404 

Maxey  v.  Commonwealth 251 

Maxwell,  Arnold  v 355 

May  V.  Lacy 540 

May,  Commonwealth  v 573 

May,  Louisville  &  Nashville  R.  Co.  v 1 16 

Mays  V.  Beatty 46 

Maysville  &  Lexington  R.  Co.  v.  Shay 127 

Maze  V.  Clark 679 

Means,  Zeigler  v 221 

Mellaney  v.  Young 165 

Melone,  Vaughan  v 21 

Melton  V.  Caigill 234 

Mercke,  Brewer  v 322 

Merrell,  Frazer  v 33 

Merriweather,  Bell's  Assignee  v 699 

Metcalfe  County  Court  v.  Scott 628 

Meter,  Dean  v 746 

Meyer,  Marshall  v 17 

Miles  V.  Commonwealth 385 

Miller  v.  Gaither 250 

Miller  v.  Miller 41 

Miller,  Denny  v 144 

Miller,  Funk  v 121 

Miller,  Worsham's  Adm'r  v 19 


TABLE  OF  CASES.  XXI 

Mills  V.  Chdf 504 

Mills  V.  Early .^ no 

Milner  v.  Hatfield 536 

Milton  V.  Castleman 258 

Miiinis  V.  Commonwealth 495 

Minos,  Lesly  v 758 

Minton  v.  Beard 630 

Mississippi  Cent.  R,  Co.  v.  Davis 524 

Mississippi  Cent.  R.  Co.  v.  Munchison 357 

Mississippi  Valley  Life  Ins.  Co.  v.  Morton 866 

Mitchell  V.  Bailey 774 

Mitchell  V.  Woodlington 475 

Mitchell,  City  of  Bowling  Green  v 849 

Monarch  v.  Young 232 

Monsh,  Cronnie  v 340 

Montague  v.  Wolveston 659 

Montgomery  v.  Gardner no 

Moore  v.  Commonwealth 482 

Moore  v.  Florence 2 

Moore  v.  Sparks  408,  425 

Moore  v.  Suerd 485 

Moore,  Clemmons  v 292 

Moore,  Fortney  v 288 

Moore,  Graham  v 271 

Moore,  Huffstetter  v 286 

Morgan  v.  Bank  of  Rome 812 

Morgan  v.  Wood loi,  778 

Morrison's  Adm'r,  Pollard's  Heirs  v 43 

Morrow  v.  Clouch  73 

Morton,  Mississippi  Valley  Life  Ins.  Co.  v 866 

Mosby  V.  Hatcher 10 

Mosely,  Webb  v 212 

Mossie,  Barret  v 528 

Mt.  Vernon  Banking  Co.  v.  Randolph 692 

Munchison,  Mississippi  Cent.  R.  Co.  v 357 

Munier,  Coy  v 677 

Murphy  v.  Ashby 861 

Murphy  v.  McRoberts 622 

Murrell  v.  Dugan's  Adm'r 864 


XXU  TABLE  OF  CASES. 

Nahm  v.  Aden 82 

National  Bank  of  Monticello  v.  JBryant 727 

Neal,  Jacoby  v 647 

Neal,  Porter  v 1 1 1 

Neeley,  Vaugh  v 390 

Nelson  v.  Rose 371 

Nesbitt,  Young  v 730 

Newcombe  v.  Tolle 825 

Newell,  Wallace  v 753 

Newport,  City  of  v.  Timberlake 483 

Noel,  Williams  v 834 

Norris,  Sullivan  v 391 

Norton,  Commonwealth  v 472 

Norwood's  Adm'r,  Carter  v 166 

Nover,  Weitzel  v 351 

Obst,  Preston  v 377 

O'Daniel  v.  Commonwealth  125 

O'Daniel  v.  Flannigan 173 

Offutt,  Cleary  v 691 

Orr  V.  Colley 791 

Osborne  v.  Hallement 12 

Overby  v.  Curry 262 

Owen  V.  Humphrey 324 

Owens  V.  Holt 94 

Owens  V.  Smith 109 

Owsley  V.  Williams ; . . . .  242 

Pace  V.  Claflin 706 

Paducah,  City  of  v.  Craig 358 

Paducah,  City  of  v.  Jones's  Adm'x 61 

Paducah,  City  of  v.  Kahn 35 

Paducah  Gulf  Railroad  Co.  v.  Adams 100 

Parrot's  Devisees  v.  Parrot's  Ex'x 682 

Patterson  v.  Snyder 41 

Paul  V.  Paul  810 

Payne  v.  Farr 179 

Pelton  V.  City  of  Hopkinsville 590 

Pepper,  VanMeter  v 827,  862 

Perkins,  McCarley's  Ex'r  v 493 

Petree  v.  Terry 269 


TABLE  OF  CASES.  XXIU 

Pfingst  V.  Wilson 217 

Phillips  V.  Claybrook 801 

Phillips,  Young  v 712 

Phipps,  Buddy  v 176 

Phoenix,  Tomlinson  v 547 

Pilant  V.  Wilson 256 

Piles,  Livingston  County  Court  v 884 

Pitman,  Shanks  v 514 

Pollard's  Heirs  v.  Morrison's  AdmV 43 

Poor  V.  Stevenson 432 

Poor,  Cantrill  v 389 

Pope  V.  Terry's  ExV 373 

Porter  v.  Field  72 

Porter  v.  Neal ill 

Porter,  Herrel  v 265 

Porter's  Adm'r  v.  Castleman 19 

Powell,  Higgins  v 768 

Powers,  Walsh  v 576 

Prather,  Harris  v 799 

Press  Printing  Co.  v.  Smith 224 

Preston  v.  Obst 377 

Prewitt,  Elizabeth,  Lexington  &  Big  Sandy  R.  Co.  v 654 

Quisenberry,  Bush  v 715 

Quisenberry,  Stevens  v 445 

Ramsey,  Gaddis  v 65 

Randall  v.  Randall 178 

Randolph,  Mt.  Vernon  Banking  Co.  v 692 

Ratcliffe  v.  McGrewder 766 

Raymond's  Ex'r  v.  Froman 60 

Ready  v.  Collins 149 

Realy  v.  Commonwealth 759 

Redd  V.  Walker 335 

Reynolds,  Armstrong  v 169 

Reynolds,  Kirk  v 419 

Rice,  Hancock  v 826 

Richards,  Lewis  v 209 

Richardson  v.  Richardson 203 

Richardson,  Louisville  Soap  Mfg.  Co.  v 437 

Richart,  Hewitt  v 664 


XXIV  TABLE  OF  CASES. 

Roberts  v.  Curie 123 

Robertson,  Kinser  v 626 

Robertson,  Leet  v 638 

Robinson,  Belknap  v 283 

Robinson's  Ex'r,  Allin  v 478 

Rodes,  Johnson  v 846 

Rogers  v.  Burberidge's  Committee 611 

Rogers  v.  Rogers 414 

Rose,  Nelson  v 371 

Rosenfield,  Crabtree  v 125 

Ross  V.  Cunningham 793 

Ross  V.  Ross 272 

Rouse  V.  Commonwealth 606 

Rouse,  Caye  v y7& 

Routt's  Adm'r  v.  Berry 420 

Rowland,  Farris's  Elx'r  v 819 

Rowlett,  Thomas  v 578 

Royal  Ins.  Co.  v.  Waters 772 

Rudd  V.  Kimbly  790 

Rudd,  Bacon  v 742 

Rudwig  V.  Crum 192 

Russell  V.  Cumberland  &  Ohio  R.  Co 344 

Russell  V.  Lynn 192 

Russell,  Finley  v 36 

Ryan,  Evans  v 720 

Rynearson's  Adm'r,  Dodd  v 672 

Sachs  V.  Shelton 897 

Saffell  V.  City  of  Frankfort 584 

Saloman  v.  Jones 132 

Saltmarsh,  Louisville  City  R.  Co.  v 856 

Samuels  v.  Sayers 674 

Sanders,  Louisville  &  Nashville  R.  Co.  v 568 

Sanderson  v.  Hays 353 

Sanders's  Assignee  v.  Duvall 642 

Sandifer  v.  Williams 779 

Saunders  v.  Gale •. . . .  500 

Savings  Institution  of  Harrodsburg  v.  Johnson 489 

Sayers,  Samuels  v 674 

Sayre  v.  Squires 544 

Scarce,  Dedman  v 393 


TABLE  OF  CASES.  XXV 

Schmidt  v.  Larder 433 

Schuler,  Brown  v 311 

Scott  V.  Davis,  Starts  &  Co 25 

Scott,  O>vington  v 138 

Scott,  Metcalfe  County  Court  v 628 

Sears,  Dorsey  v 605 

Settle's  Adm  r  v.  Gordon 775 

Shanklin,  Covington  v 346 

Shanks  v.  Pitman 514 

Shaugherssey  v.  Huffman's  Adm'r 713 

Shay,  Maysville  &  Lexington  R.  Co.  v 127 

Shelby,  Martin  v 6oi 

Shelton,  Sachs  v 897 

Shinkle  v.  City  of  Covington 227 

Shipp  V.  Commonwealth 652 

Showdy,  Garvin  v 142 

Shrout's  Adm'r,  Boothe  v 61 

Shy's  Adm'r,  Jones's  Adm'r  v 890 

Simms,  Mattingly  v 886 

Sinville,  Brent  v 781 

Slaughter  v.  City  of  Louisville 24 

Sleet  V.  Louisville,  Cincinnati  &  Lexington  R.  Co. 447 

Small's  Adm'r  v.  Jones 852 

Smith  V.  Berry 795 

Smith  V.  Eubank 780 

Smith  V.  Watson 412 

Smith,  Allen  v 84 

Smith,  Arnold  v 494 

Smithers  v.  Commonwealth 574 

Smith,  Field  v 821,  843 

Smith,  Lambert  v 700 

Smith,  Owens  v 109 

Smith,  Press  Printing  Co.  v 224 

Smith's  Adm'r  v.  Louisville  Benevolent  &  Relief  Association. .  152 

Smith's  Adm'r,  Bennett  v 202 

Smith's  G'd'n  v.  Calvin 808 

Smith's  Trustee,  Green  v 673 

Snoddy  v.  Johnston 107 

Snyder,  Patterson  v 41 

Southern  Mutual  Life  Ins.  Co.  v.  Downs 879 

Sparks  v.  Hemphill 543 


XXVI  TABLE  OF  CASES. 

Sparks,  Mcx)re  v 408,  425 

Specht,  Yarbra  v 521 

Spencer  v.  Spencer 618 

Spillman,  Long  v 140 

Squires,  Sayre  v 544 

Stafford  v.  Campbell 533 

Stamper,  Lunsford  v 538 

Stanley,  Strowd  v 625 

Staton  V.  Christian 785 

Steerman,  Daniel  v 663 

Stephenson  v.  Lillard 466 

Stevens  v.  Chorn 679 

Stevens  v.  Commonwealth  800 

Stevens  v.  Quisenberry  445 

Stevenson,  Poor  v 432 

Stiff  V.  Stiff 631 

Stinnet  v.  Lowney  263 

Stockton  V.  Bank  of  Louisville 171 

Stoddard  v.  Flemingsburg  &  Poplar  Plains  Turnpike  Road  Co.  509 

Stone,  Douglass  v 669 

Stone,  Hudson  v 844 

Storme,  Deaner  v 56 

Strowd  V.  Stanley 625 

Strow,  Huston  v.  603 

Suerd,  Moore  v 485 

Sullivan  v.  Norris 391 

Sullivan,  Fishback  v. 423 

Sutherland,  McKay  v 771 

Sutton  V.  Hancock 359 

Swinney,  Judy  v 156 

Taft  V.  Barrett 395 

Talbott  V.  Bank  of  Kentucky 480 

Tandy,  Baker  v 701 

Tate  V.  Elliott 806 

Taylor  v.  Commonwealth  401 

Taylor,  Buford  v 98 

Taylor,  Commonwealth  v 105 

Taylor's  Adm'r,  Martin  v 559 

Terry,  Petree  v 269 

Terry's  Ex'r,  Pope  v 373 


TABLE  OF  CASES.  XXVii 

Terry,  Tomerlin  v 629 

Thomas  v.  Rowlett 578 

Thomas,  Boyd  v 460 

Thomas,  Cooper  v 368 

Thompson  v.  Bratton 609 

Thompson  v.  Glinn 886 

Thompson,  Bailey's  AdmV  v 280 

Thompson,  Hackworth  v 585 

Thompson,  Jones  v 703 

Throckmorton,  Burden  v 299 

Tilman  v.  Carey 336 

Timberlake,  City  of  Newport  v 483 

Tinsley,  Wyatt  v 59 

Tipton,  Fox  v 413 

Tolle,  Newcombe  v 825 

Tomerlin  v.  Terry   629 

Tomlinson  v.  Phoenix 547 

Trabue  v.  Grover ^^ 

Trabue,  Hosick  v 805 

Trimble  v.  Farmers'  Bank  of  Kentucky  .  t 186 

Trustees  of  Town  of  Shelbyville,  Caldwell  v 842 

Trustees  of  Winchester,  Cooke  v 442 

Tucker,  Clark  v 409 

Turner  v.  Licking  River  Lumber  &  Mining  Co 539 

Turner  v.  Martin 158 

Turrell,  Commonwealth  v 730 

Twyman,  Hays  v 473 

Ullman,  Abrams  v 8 

Underwood  v.  Burton 462 

Underwood,  Davenport  v 665 

Upshaw  V.  Jackson 140 

Vallandingham  v.  Igo 427 

Vanarsdale  v.  Dry 54 

VanArsdall,  Finnell  v 416 

Vandergrift  v.  Cox 334 

Vandivier  v.  Winchester  Building  &  Accumulating  Fund  Asso- 
ciation    575 

VanMeter  v.  Pepper 827,  862 

Vanmeter,  Commonwealth  v 754 


XXVlll  TABLE  OF  CASES. 

Varnon's  Ex'r,  Bqrbridge  v 87 

Vassam  v.  Hamilton 842 

Vaugh  V.  Neeley 390 

Vaughan  v.  Melone 21 

Vaughan's  G'd'n  v.  Burkhart 516 

Vaughan's  G'd'n  v.  City  of  Louisville 516 

Vinegar  v.  Jackson 304 

Waddle  v.  Commonwealth 577 

Wade  V.  First  Nat.  Bank  of  Franklin 518 

Wade,  Louisville  &  Nashville  R.  Co.  v 568 

Wainscott  v.  Commonwealth 639 

Wainscott,  Commonwealth  v 723 

Wakefield,  Buckley  v 283 

Walker  v.  Craddock 281 

Walker,  Black  v. 85 

Walker,  Haskamp's  Ex'x  v 417 

Walker,  Redd  v 335 

Wallace  v.  Newell 753 

Wallace,  Dixon  v z 276 

Wallace,  Webster  County  Court  v 531 

Waller's  Adm'r  v.  Harrison 717 

Walsh  V.  Powers 576 

Walter  v.  Wooley 337 

Waltrip's  Adm'r,  Ayer  v 453 

Warburton's  Ex'r,  Greer  v. 362 

Warner,  Williams  v 635 

Waters,  Royal  Ins.  Co^  v 772 

Watkins,  Bowles  v 207 

Watson,  Hibbard  v 461 

Watson,  Mag^U  v 133 

Watson,  Smith  v 412 

Webb  V.  Forman 697 

Webb  V.  Mosely 212 

Webster  County  Court  v.  Wallace 531 

Webster  County  Court  v.  Yates 531 

Wehrley  v.  Courtney 523 

Weir  V.  Elizabethtown  &  Paducah  R.  Co 705 

Weitzel  v.  Nover 351 

Whalley,  Green  v 240 

Whipp  V.  Wolford 22 


TABLE  OF  CASES.  XXIX 

Whitaker,  Kester  v 499 

White  V.  Hayden's  Adm'r 498 

White's  G'd'n,  Hume  v 651 

Wilkerson,  Louisville  &  Nashville  R.  Co.  v 671 

Williams  v.  Godsay 210 

Williams  v.  Noel  834 

Williams  v.  Warner 635 

Williams,  Gardner  v 50 

Williams,  Major  v 117 

Williams,  Owsley  v 242 

Williams,  Sandifer  v 779 

Willison,  Witt  v 607 

Wills  V.  Franklin 185 

Wilson  V.  Hampton ^ 442 

Wilson,  Green  v 636 

Wilson,  Lieber  v 438 

Wilson,  Pfingst  v 217 

Wilson,  Pilant  v 256 

Winchester  Building  &  Accumulating  Fund  Association,  Van- 

divier  v 575 

Wingate  v.  Garrison 189 

Wingate  v.  Kale 189 

Witt  V.  Willison 607 

Wolfe,  McLure  v 315 

Wolford,  Whipp  v 22 

Wolveston,  Montague  v 659 

Woodlington,  Mitchell  v 475 

Wood,  Morgan  v loi,  778 

Woods  V.  Woods  6 

Wooley,  Walter  v 337 

WooUey  v.  Combs 103 

Woolsworth  Handle  Works  v.  Littlefield 367 

Worsham's  AdmV  v.  Miller 19 

Wyatt  V.  Tinsley 59 

Yarbra  v.  Specht  521 

Yates,  Webster  County  Court  v 531 

Young  V.  Nesbitt 730 

Young  V.  Phillips 712 

Young,  Chamberlin  v 214 


XXX  TABLE  OF  CASES. 

Young,  Mellaney  v i6 

Young,  Monarch  v 232 

Zanone,  Littlefield  v 695 

Zeigler  v.  Means 221 


KENTUCKY  COURT  OF  APPEALS 


A.  F.  Freeman  v.  A.  Levi. 

Landlord  and  Tenant. 

Landlord's  lien  on  goods  must  be  satisfied  before  general  creditors. 
The  sale  of  such  goods  does  not  operate  as  an  assignment  for  the  bene- 
fit of  creditors  under  Act  of  1856. 

Landlord  and  Tenant. 

Where  real  estate  under  lease  is  not  surrendered,  but  is  left  vacant, 
the  landlord  purchasing  such  goods  may  deduct  from  purchase  price 
amount  of  rent  due  for  time  the  real  estate  was  vacant. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT. 

June  18,  1874. 

Opinion  by  Judge  Peters  : 

No  question  is  raised  as  to  the  indebtedness  of  Keefer  to  Free- 
man for  the  rent  of  the  house  in  which  the  goods  were  stored ;  nor 
is  it  controverted  that  Freeman  had  a  lien  on  the  goods  in  the 
house,  for  his  rent.  They  were  fairly  sold  for  an  adequate  price, 
including  the  rent  for  the  unexpired  time  the  lease  had  to  run ;  and 
as  Freeman  had  a  right  to  have  his  demand  for  rent  satisfied  out 
of  the  goods,  before  Levi,  or  any  other  creditor  could  subject  them 
to  the  satisfaction  of  their  demands,  the  sale  of  the  goods  by 
Keefer  to  Freeman  or  his  agent,  did  not  operate  as  an  assignment 
to  the  benfit  of  all  the  creditors  of  Keefer  under  the  act  of  1856. 

The  writing,  evidencing  the  sale  of  the  goods  to  Freeman  by 
Keefer,  does  not  stipulate  for  the  surrender  of  the  possession  of  the 
house  by  Keefer,  but  it  may  be  inferred  from  the  evidence  of  El- 
lingewood  that  it  was  surrendered ;  and  he  says  in  June  of  the  same 
year  it  was  rented  to  another  tenant;  that,  however,  does  not  au- 
thorize the  conclusion  that  Freeman  was  to  lose  the  rent  for  the 
time  it  was  unoccupied.  The  strong  presumption  is  that  the  time 
the  house  might  be  vacant  was  considered  in  the  negotiations  for 
the  sale,  as  the  goods  were  really  worth  more  than  $101,  the 
amount  of  rent  then  actually  due.  It  seems  to  us  that  Freeman 
should  have  $101  out  of  the  price  of  the  goods,  that  being  the  sum 
then  due,  and  the  further  sum  of  $93.75,  the  rent  for  the  three 
months  during  the  time  the  house  was  unoccupied ;  and  the  residue 


2  Kentucky  Opinions. 

of  the  price  for  which  the  goods  were  sold  should  be  paid  to  Levi, 
and  Freeman  pay  the  costs  in  the  court  below.  Wherefore  the  judg- 
ment is  reversed  and  the  cause  is  remanded  with  directions  to  ren- 
der a  judgment  as  herein  directed. 

Caldtvell,  Harwood,  for  appellant. 
A.  G.  Roberts,  for  appellee. 


William  A.  Moore,  et  al.,  v.  Bowmer  Florence. 

Wills— Construction  of. 

Intention  of  testator  must  goyern»  but  this  intention  must  be  gleaned 
tmm  the  whole  of  the  wilL 

Terms  of  Will  Construed. 

Where  a  will  conveys  real  estate  to  a  named  person  "and  to  her 
issue/'  it  is  held  that  such  named  person  takes  the  title  in  fee  simple. 

APPEAL  FROM  NELSON  CIRCUIT  COURT. 

June  19,  1874. 

Opinion  bv  Judge  Pryor: 

The  following  is  the  clause  of  the  will  of  William  Cotton  upon 
which  the  appellants  base  their  right  to  recover,  item  2:  **I  be- 
queath to  my  daughter,  Catherine  Ann,  who  intermarried  with 
Charles  A.  Moore,  of  Bardstown,  in  the  state  of  Kentucky,  and  to 
her  issue,  all  my  estate,  real,  personal  and  mixed,  of  every  kind  and 
description  whatsoever,  in  the  said  state  of  Kentucky  and  else- 
where, with  the  exception  hereinafter  specified."  Mrs.  Moore  died ; 
and  these  appellants,  who  are  her  children,  instituted  this  action  to 
recover  the  land  in  controversy,  alleging  that  by  the  terms  of  the 
will,  their  mother  held  only  a  life  estate.  It  is  alleged  in  the  peti- 
tion, and  conceded  by  both  parties,  that  this  land  passed  by  the  will 
of  Cotton  to  the  devisees  therein  named,  Mrs.  Moore  and  her  hus- 
band ;  the  wife,  claiming  an  absolute  estate  in  the  land  by  reason  of 
the  devise,  on  November  29,  1844,  sold  this  land  to  the  appellee, 
Florence,  and  made  him  a  deed  therefor.  As  purchaser,  he  took 
possession,  and  has  held  it  since  under  this  deed  passing  the  fee 
simple  title,  and  was  in  the  possession  at  the  institution  of  the 
action  in  March,  1873.  These  facts  were  alleged  by  the  appellee, 
Florence,  in  his  answer,  and  for  the  purposes  of  the  demurrer  must 
be  taken  as  true.     The  demurrer  thus  filed  reaching  back  to  the 


WiLUAM  A.  Moore,  et  al.,  v,  Bowmer  Florence.  3 

petition,  it  is  insisted  by  counsel  for  appellee  that  the  appellants,  the 
children  of  Mrs.  Moore,  have  no  cause  of  action,  and  the  court 
below,  so  adjudging  their  petition,  was  dismissed.  Counsel  for  ap- 
pellants maintain  that  the  court  had  no  right  to  consider  the  will  or 
its  contents,  as  it  was,  at  best,  only  evidence  of  the  right  to  recover, 
and  not  the  foundation  of  the  action.  This,  as  a  general  proposi- 
tion, when  exhibited  and  merely  referred  to  and  filed  with  pleading, 
is  true.  In  an  action  to  recover  land,  the  allegation  that  the  plain- 
tiff is  the  owner,  and  entitled  to  the  possession,  and  that  defendant 
holds  possession  without  right,  presents  a  cause  of  action,  and  al- 
thou^  an  exhibit  of  title  may  be  filed,  it  is  with  the  plaintiff,  whether 
or  not  he  will  offer  it  as  evidence,  and  therefore  it  should  not  be 
r^[arded  upon  demurrer.  But  when  the  plaintiff  sets  forth  his 
title,  and  alleges  that  the  defendant  claims  under  the  same  deed  or 
will,  and  not  only  so,  but  makes  a  statement  of  facts  in  connection 
therewith  that  must  be  taken  as  true,  he  will  not  be  allowed  after- 
ward to  controvert  his  title  and  the  facts  stated,  so  as  to  avoid  the 
effect  of  his  own  admissions,  without  first  showing  by  affidavit  or 
otherwise  that  he  was  laboring  under  a  misapprehension  of  the 
facts,  when  reducing  them  to  writing.  It  is  alleged  that  Mrs. 
Moore,  the  mother  of  the  appellants,  derived  her  title  under  the 
will  of  William  Cotton;  that  by  its  provisions  she  had  only  a  life 
estate  in  the  land  devised ;  that  during  her  life,  the  mother,  in  con- 
junction  with  her  husband,  conveyed  this  land  to  the  appellee.  The 
will  under  which  the  appellants  claim,  is  filed  with  the  petition,, 
as  well  as  the  deed  from  Mrs.  Moore  and  her  husband  to  the  ap- 
pellee. If,  by  the  provisions  of  the  will,  Mrs.  Moore  had  only  a 
life  estate,  then  she  could  convey  no  greater  estate  to  her  vendee  ; 
but  if  she  had  an  estate  in  fee,  the  absolute  title  to  the  land  passed 
to  the  appellee  under  the  deed  made  him  by  Mrs.  Moore  and  her 
husband ;  hence  the  solution  of  the  question  depends  upon  the  con- 
struction given  the  will  of  William  Cotton.  The  clause  in  the  will 
under  which  the  appellants  claim,  creates  an  estate  tail  at  the  com- 
mon law,  and  by  our  statute  is  made  a  fee  simple  estate,  passing  to 
the  devisee  the  absolute  title.  In  construing  a  will,  however,  such 
meaning  must  be  given  the  language  as  will  carry  out  the  intent  and 
purpose  of  the  party  making  it.  Tliis  intention  is  to  be  gathered 
from  the  whole  will.  There  were  two  persons  living  at  the  date  of 
the  will,  who  seem  to  have  been  the  objects  of  the  testator's  bounty. 
Mrs.  Moore,  who  claimed  under  the  clause  first  quoted,  and  Mrs. 
M.  Bryant,  to  whom  the  following  devise  was  made,  item  4:  "It 


4  Kentucky  Opinions. 

is  my  will  that  Mrs.  M.  Bryant,  of  Natchez,  shall  have  the  brick 
house  and  lot,  and  the  lot  with  an  old  frame  house  on  it,  both 
fronting  on  Walnut  Street,  in  Louisville,  Ky.,  and  near  the  city  hos- 
pital, during  her  natural  life,  and  at  her  death  to  her  children." 
These  two  devises  contain,  in  substance,  the  whole  will,  and  cer- 
tainly all  that  portion  of  it  from  which  the  intention  of  the  devisor 
is  to  be  determined  in  the  devise  made  to  Mrs.  Moore.  The  word 
"issue"  in  a  will  is  generally  to  be  construed  as  a  word  of  limitation, 
and  was  so  understood  by  the  ancient  common-law  judges.  The 
courts  of  this  country,  however,  enlarge  or  restrict  the  meaning  by 
giving  to  it  the  same  meaning  the  testator  intended,  if  there  is  any- 
thing to  be  found  in  the  will  authorizing  such  a  construction.  In 
2  Jarman  on  Wills  351,  it  is  said:  "It  is  clear  that  a  simple  bequest 
to  A  and  his  issue,  if  the  subject  of  disposition  were  real  estate, 
would  indisputably  make  A  tenant  in  tail."  "The  word  'issue', 
when  not  restrained  by  the  context,  is  constructive  and  synonimous 
with  'descendants',  comprehending  objects  of  every  degpree."  Same 
vol.,  p.  25 :  "An  estate  tail  is  an  estate  given  to  a  man  and  the  heirs 
of  his  body,  and  will,  if  left  to  itself,  descend  on  the  death  of  the 
first  owner  to  all  his  lawful  issue,  children,  grandchildren,  and  more 
remote-  descendants."  Williams  on  Real  Property,  p.  63.  "With 
regard,  however,  to  a  devise  simply  to  a  person  and  his  issue,  no 
doubt  at  this  day  can  be  raised  as  to  its  conferring  an  estate  tail." 
2  Jarman  240.  "A  bequest  to  A  and  his  issue  will  clearly  pass  an 
estate  tail,  in  real  property,  so  it  will  give  to  A  an  absolute  interest 
in  a  personal  legacy."  2  Williams  on  Ex'rs  727.  The  words  "heirs 
of  the  body"  or  "heirs  of  issue"  are  sometimes  used,  and  frequently 
decided,  to  be  words  of  purchase.  It  is  a  question  of  intention,  at 
leasty  to  be  determined  from  the  whole  instrument.  In  Prescott  v. 
Prescotfs  Heirs,  10  B.  Mon.  56;  Jarvis  &  Trabue  v.  Quigley,  et  fli, 
same  book,  page  105,  Sharkwood,  justice  in  the  case  of  Taylor  v. 
Taylor,  63  Pa.  St.  483,  says  that  the  word  "issue"  in  a  will,  is  to 
be  construed  as  a  word  of  purchase  or  limitation,  as  will  best  ef- 
fectuate the  intention  of  the  testator,  gathered  from  the  entire  in- 
strument. In  that  case  the  testator  gave  to  his  daughter,  Susanna 
Bousall,  and  his  mother,  or  in  the  event  of  the  death  of  one  of  them, 
to  the  survivor,  all  his  real  estate  during  their  lives,  and  in  case  his 
daughter,  Susanna,  departed  this  life  having  lawful  issue,  it  was 
then  his  will  that  his  real  estate  should  descend  to  such  lawful  issue, 
their  heirs  and  assigns,  forever;  and  in  case  his  daughter  should 
depart  this  life  before  her  mother,  having  lawful  issue,  then  that 


William  A.  Moore,  et  al.,  v,  Bowmer  Florence.  5 

such  issue  should  enjoy  and  inherit  their  mother's  right  from  the 
time  of  her  death.  The  learned  judge  says,  "It  is  a  position  not 
open  to  dispute,  that,  if  it  appears  either  by  confession  or  clear 
implication  that  by  the  word  'issue'  the  testator  meant  children,  or 
issue  living  at  a  particular  period,  as  at  the  death  of  the  first  taker, 
and  not  the  whole  line  of  succession,  which  would  be  included  under 
the  term  *heirs  of  the  body',  it  must  necessarily  be  construed  to  be 
a  word  of  purchase."  The  testator  gave  to  his  wife  and  daughter 
all  of  his  real  estate  during  their  natural  lives,  and  in  case  his 
daughter  should  depart  this  life,  leaving  lawful  issue,  the  real  estate 
to  descend  to  such  lawful  issue  and  their  heirs  forever.  He  immedi- 
ately adds  these  words :  "And  further,  it  is  my  will  if  my  daughter 
depart  this  life  before  her  mother,  leaving  lawful  issue,  then  such 
issue  shall  enjoy  and  inherit  their  mother's  right  from  the  time  of 
her  death."  No  declaration  could  well  be  more  explicit,  to  show 
that  by  issue  he  meant  children,  for  they  were  to  inherit  and  en- 
joy their  mother's  right  from  the  time  of  her  death.  There  is  a 
material  distinction  between  the  case  cited  and  the  one  under  con- 
sideration. In  the  case  of  Taylor,  the  devise  to  the  daughter  was 
in  the  first  place  for  life  only,  and  then  to  be  enjoyed  by  her 
lawful  issue,  the  testator  evidently  meaning  children,  they 
to  inherit  and  enjoy  from  the  time  of  her  death.  In  the  present 
case  the  devise  is  to  Mrs.  Moore  and  to  her  issue,  with  no  lan- 
guage in  the  will  restricting  or  limiting  her  estate,  or  from  which  the 
conclusion  can  be  reached  that  he  intended  Mrs.  Moore  to  have  only 
a  life  estate  in  what  he  had  devised.  There  is,  however,  a  clause  in 
the  will  that,  in  our  opinion,  indicates  clearly  that  the  testator  in- 
tended Mrs.  Moore  to  have  an  absolute  estate.  He  knew  how  to 
create  a  life  estate,  and  the  manner  in  which  the  rights  of  each  bene- 
ficiary could  be  limited.  In  the  devise  to  Mrs.  Bryant  of  the  lots  in 
the  city  of  Louisville  he  uses  this  language :  "It  is  my  will  that  Mrs. 
M.  Bryant  shall  have  the  lots,  discharging  them,  during  her  natural 
life,  and  at  her  death  to  her  children."  It  is  evident  that  the  testa- 
tor intended  to  give  to  Mrs.  Moore  a  greater  estate  than  to  Mrs. 
Bryant,  by  restricting  the  right  of  the  one,  and  passing  the  absolute 
property  to  the  other.  If  he  intended  Mrs.  Moore  to  have  a  life 
estate  the  same  language  would  have  been  used,  and  not  such  tech- 
nical words  as  would  create  an  estate  tail,  or  some  other  estate 
about  which  the  devisor  was  entirely  ignorant.  In  our  opinion,  the 
word  "issue"  was  used  as  synonomous  with  the  word  "heirs,"  or 
"heirs  of  the  body,"  and  passed  to  Mrs.  Moore  the  absolute  title. 


6  Kentucky  Opinions. 

This  will  was  heretofore  in  this  court  for  construction  in  the  case  of 
Moore,  etc.,  v.  Millet,  on  the  petition  of  the  children  of  Mrs.  Moore 
V.  Catherine  Moore,  the  mother,  asking  for  a  sale  of  some  of  the 
real  estate  by  reason  of  its  being  indivisible,  and  alleging  that  Mrs. 
Moore,  to  whom  the  devise  was  made,  held  the  lot  in  her  own  right 
and  as  trustee  for  the  children.  They  also  ask  for  a  construction 
of  the  will.  The  widow,  her  husband  being  dead^  filed  an  answer, 
admitting  the  allegation  of  the  petition,  and  also  asking  for  a  con- 
struction of  the  will,  but  asserting  no  other  interest  than  that  stated 
in  the  petition.  The  court  below  decided  that  the  widow  held  only 
a  life  estate,  and  that  judgment  was  affirmed  by  this  court,  and  the 
opinion  adhered  to  on  a  petition,  filed  for  a  rehearing.  The  point 
made  in  this  court  by  the  widow  and  her  son,  William,  was,  that  by 
the  terms  of  the  will,  the  fee  passed  to  them,  as  William  was  the 
only  child  living  at  the  death  of  the  testator,  his  grandfather,  and 
the  fee  having  been  vested,  the  other  children,  subsequently  bom, 
could  not  take  it.  The  court,  looking  to  this  point  more  than  any 
other,  and  the  widow,  by  counsel,  conceding  in  argument  that  the 
son  William  held  jointly  with  her,  it  was  held  that  all  the  children 
had  equal  interests,  and  the  mother  only  a  life  estate.  This  view  of 
the  question  cannot  be  adhered  to. 
Judgment  affirmed. 

D.  W.  Sanders,  W.  McKnight,  E.  E.  McKay,  for  appellants. 
Muir  &  Wickliffe,  Barr  Goodloe,  for  appellee. 


William  G.  Woods  v.  William  Woods. 

Real  Estate— Recovery  of  Purchase  Price. 

When  land  is  to  be  paid  for  at  the  time  the  amount  thereof  is  as- 
certained by  survey,  no  interest  is  collectable  prior  to  survey. 

Power  of  Vendor. 

Where  land  is  to  be  paid  for  at  the  time  the  amount  thereof  is  as- 
certained by  survey,  the  vendor  has  it  in  his  power  to  have  the  land 
surveyed  at  any  time;  and  if  he  fail  to  do  so  promptly,  and  thereby 
secure  the  principal  and  interest,  it  is  his  own  fault 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

June  19,  1874. 

Opinion  by  Judge  Peters: 

On  February  27,  1859,  William  Woods,  by  writing,  construed  to 
sell  to  William  G.  Woods  a  small  tract  of  land,  described  in  the 


William  G.  Wocjds  v.  William  Woch>s.  7 

writing  at  the  price  of  $25  per  acre,  in  three  equal  annual  payments 
after  the  land  was  surveyed.  Suit  was  brought  by  William  Woods 
to  coerce  the  payment  of  the  purchase  price  of  the  land  by  an  en- 
forcement of  the  vendor's  lien. 

The  principal  defense  relied  on  is  that  the  plaintiff  below  was  in- 
debted to  the  defendant,  both  before  and  after  said  ccxitract  was 
made,  for  labor  performed  at  his  request  and  for  him ;  that  he  was 
to  be  credited  on  the  price  of  the  land  for  labor  which  he  had  there- 
tofore performed  for,  and  at  the  request  of  plaintiff,  and  for  such 
as  he  should  perform  for  him  afterwards;  and  that  he  had  per- 
formed labor  at  a  fair  compensation  sufficient  to  pay  the  purchase 
money. 

No  survey  of  the  land  appears  to  have  been  made  until  June  3, 
1873^  when  it  was  surveyed  under  an  order  of  court  and  found  to 
contain  23}^  acres;  and  in  July,  1873,  judgment  was  rendered  in 
favor  of  plaintiff  for  $581.25,  being  $25  per  acre  for  the  23^  acres 
found  to  be  in  the  tract,  and  interest  from  the  date  of  the  judgment 
JFor  the  costs  of  the  suit,  and  for  a  sale  of  the  land  on  credits  of  six 
and  twelve  months  on  failure  of  the  defendant  to  pay  the  money 
into  court  on  or  before  August  i,  1873.  From  that  judgment  Wil- 
liam G.  Woods  has  appealed,  and  William  Woods  prosecutes  a 
cross  appeal. 

If,  as  is  alleged  in  the  answer,  appellant  had  the  privilege  of  paying 
for  the  land,  and  had,  in  fact,  paid  a  part  of  the  price  by  labor  per- 
formed for  plaintiff,  he  should  have  had  it  inserted  in  the  writing ;  and 
his  failure  to  have  the  amount  of  appellee's  indebtedness  ascertained 
at  the  date  of  the  contract,  and  a  credit  for  it  given,  or  some  state- 
ment made  in  relation  thereto,  at  the  time,  is  a  circumstance  un- 
favorable to  his  claim.  But,  besides,  his  evidence  of  the  labor  per- 
formed by  him  for  his  vendor,  is  too  vague  and  uncertain,  both  as 
to  time  and  value,  to  be  the  basis  of  judicial  action. 

On  the  subject  of  the  cross  appeal,  it  is  sufficient  to  say  that,  by 
the  terms  of  the  contract,  the  times  of  payment  were  to  date  frcxn 
the  making  of  the  survey  of  the  land ;  and  if  the  running  of  interest 
is  deferred  to  the  period  of  the  survey,  appellee  cannot  be  heard  to 
complain,  as  the  remedy  was  in  his  own  hands. 

Judgment  ofHrmed  on  the  original  and  cross  appeal. 

Munday  &  Parson,  far  appellant. 
/.  G.  Wilson,  for  appellee. 


8  Kentucky  Opinions. 

H.  Abrams  V,  S.  Ullman,  et  al. 

Practice — Malicious  Prosecution. 

Where  an  action  for  malicious  prosecution  has  been  reversed  by  the 
court  of  appeals  and  returned  to  the  lower  court  for  trial,  plaintiff 
may  not  then  amend  his  petition  by  filing  counts  for  slander. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

June  20,  1874. 

Opinion  by  Judge  Peters  : 

After  this  court  had  reversed  a  judgment  of  the  court  below  in 
favor  of  appellant  against  appellees,  the  cause  was  again  tried  in 
that  court,  and  appellees  having  succeeded,  appellant  now  seeks 
a  reversal  of  the  judgment  against  her.  After  the  return  of  the 
cause,  appellant  produced  and  asked  permission  of  the  court  below 
to  file  an  amended  petition,  w'hich  was  refused,  and  that  ruling  she 
complained  of  as  an  error  prejudicial  to  her. 

The  action,  as  is  most  manifest,  up  to  the  time  when  the  amend- 
ment was  offered,  had  been  treated  as  an  action  for  a  malicious 
prosecution,  not  only  from  the  allegations  of  the  petition  itself,  but 
from  the  instructions  asked  for  by  appellant  on  the  first  trial,  and 
also  from  the  character  of  the  defense.  It  had  all  the  characteristics 
of  an  action  on  the  case,  under  the  old  system  of  pleading,  for  a 
malicious  prosecution.  For  injury  to  the  person,  not  immediate,  but 
by  a  regular  process  of  a  court,  see  i  Chit.  Pleading  133. 

The  amendments  tendered  were  evidently  counts  in  slander,  for 
injury  to  character,  and  the  two  causes  of  action  cannot  be  joined, 
according  to  clauses  5  and  6,  §  iii.  Civil  Code,  and  as  held  in  this 
court  in  Dragoo  v.  Levi,  2  Duvall  520. 

The  court  below  therefore  ruled  the  law  correctly  in  refusing 
said  amendments  to  be  filed. 

The  next  question  we  propose  to  consider  is  the  propriety  of  the 
ruling  of  the  court  below  in  giving  an  instruction  in  the  following 
language  on  motion  of  appellee,  Bamberger:  "That  it  devolves  on 
the  plaintiflF  to  prove  that  defendant,  J.  F.  Bamberger,  procured  or 
helped  to  procure  the  indictment  complained  of,  and  as  there  is  no 
evidence  that  he  procured  or  helped  to  procure  the  indictment,  the 
law  is  for  said  defendant,  Bamberger,  and  tlie  jury  must  so  find." 

The  correct  solution  of  this  question  necessarily  requires  some 
reference  to  the  evidence  upon  which  the  prosecution  was  founded. 
Ullman,  the  partner  of  Bamberger,  was  a  member  of  the  grand  jury 


H.  Abrams  V,  S.  Ullman,  et  al.  9 

which  found  the  indictment  against  appellant,  and  it  was  found  on 
his  statement  alone  to  that  body.  The  facts  which  he  stated  to  them 
he  says  he  derived  from  Bamberger,  that  he  told  him  he  had 
detected  the  two  boys  who  stole  the  calico;  that  he  found  it  in  the 
possession  of  appellant;  that  she  admitted  that  she  bought  it  from 
the  boy,  N.  Goldsmith,  for  $2.75,  when  it  was  worth  twice  that  sum, 
and  that  he  was  satisfied  she  must  have  known  it  was  stolen  from 
the  price  she  paid  for  it  when  she  bought  it.  He  did  not  state  that 
Bamberger  told  him  that  when  the  calico  was  asked  for,  appellant 
told  him  she  had  it,  how  she  got  it,  what  she  paid  for  it,  that  it  was 
in  a  most  conspicuous  place  in  her  house,  and  that  she  made  no  at- 
tempt to  conceal  it,  but  that  all  she  said  as  to  the  manner  of  her 
getting  it,  was  true,  and  that  sh«  also  said  at  the  time  that  she  did 
not  know  it  was  stolen,  and  afterward  reproached  the  boy  for 
selling  her  stolen  goods,  all  of  which  there  is  evidence  conducive  to 
establish.  There  is  also  evidence  in  the  case  that  Ullman  and  Bam- 
berger, both  at  appellant's  house,  after  upbraiding  and  reproaching 
her  for  alleged  dishonest  conduct,  threatened  to  prosecute  her  and 
to  send  her  to  the  penitentiary  at  the  cost  to  them  of  a  "great 
sum."  Then,  with  other  facts  proven,  which  we  deem  it  unneces- 
sary to  recite,  they  tendered  in  some  degree  to  show  that  the  prose- 
cution was  groundless,  and  that  Bamberger  took  some  part  in  it. 

We  may  add  that  appellant  was  not  tried  before  Judge  Price,  and 
many  facts  tending  to  exonerate  her  do  not  appear  to  have  been 
disclosed  to  him.  Nor  does  it  appear  that  the  communication  made 
by  Bamberger  to  Ullman  was  in  subordination  to  the  advice  of  Judge 
Price,  and  the  prosecuting  attorney  in  his  court. 

After  the  instruction  herein  copied,  follow  three  others  in  the 
record,  but  whether  or  not  they  were  given  does  not  appear.  We 
conclude,  however,  they  were  not,  as  they  would  have  been  wholly 
unnecessary  after  the  one  commented  on  was  given;  but  as  there 
may  be  some  uncertainty  about  them,  we  may  say  that  we  cannot 
approve  them.  In  one,  certain  facts  are  enumerated  from  the  evi- 
dence, and  special  importance  given  to  them  to  the  obscurement  of 
others;  and  in  another,  too  much  importance  is  given  to  what 
Judge  Price  said  to  the  officer  who  arrested  Goldsmith.  The  last 
we  do  not  consider  particularly  objectionable. 

We  approve  the  judgment  in  favor  of  Ullman.  But  for  the  rea- 
sons herein  stated  the  judgment  in  favor  of  Bamberger  is  reversed, 


lo  Kentucky  Opinions. 

and  the  case  remanded  for  new  trial  and  for  further  proceedings 
consistent  herewith. 

Mundy,  for  appellant. 

Muir  Bijou  &  Davie,  for  appellees. 


R.  M.  MosBY,  Assignee,  v.  Hatcher,  Perin,  et  au 

Promissory  Not^— Plea  of  Payment— Evidence. 

A  plea  of  payment  to  a  suit  on  a  debt  is  good  which  sets  up  a  con- 
temporaneous contract  showing  that  plaintiff  had  agreed  to  accept  as 
payment  the  performance  of  certain  advertising  and  supplying  certain 
newspapers,  which  the  defendant  had  performed  and  supplied. 

» 

Evidence. 

Where  an  action  at  law  is  submitted  to  the  Judge  without  a  Jury,  the 
court's  finding  on  the  facts  will  not  be  reversed  unless  it  be  palpably 
wrong. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

June  20,  1874. 

Opinion  by  Judge  Lindsay  : 

The  answer  herein  sets  up  a  contract  entered  into  by  Hatcher, 
Perin,  et  al.,  with  Handy,  Hughes  &  Co.,  at  the  time  of  the  execution 
of  the  note,  by  which  the  payees  agreed  to  accept  as  part  payment 
thereof,  the  performance  of  certain  advertising,  and  the  supplying 
to  certain  subscribers  to  the  Democrat  Newspaper,  of  daily  and 
weekly  issues  of  another  city  newspaper  to  the  extent  of  their  paid 
subscriptions  to  the  Democrat  Appellees  aver  the  performance  of 
said  contemporaneous  undertaking,  and  ask  to  be  credited  by  the 
agreed  value  thereof,  as  a  payment  on  their  note. 

We  regard  this  as  a  good  plea  of  payment,  but  if  it  is  not,  then 
it  certainly  amounts  to  a  set-off.  If  it  be  treated  as  a  set-off  the 
judgment  is  correct,  for  the  want  of  a  reply.  If  it  be  treated  as  a 
plea  of  payment,  then  the  proof  sufficiently  supports  it. 

Bowman  proves  the  stipulations  of  the  contract.  He  was  advised 
as  to  the  number  of  subscriptions  appellees  agreed  to  fill,  and  the 
amount  of  advertising  they  agreed  to  do.  He  states  that  the  parties 
having  contracts  with  the  Democrat  office,  had,  up  to  the  date  of 
his  deposition,  over  two  and  one-half  years  after  the  date  of  the  note, 
made  no  complaint  of  the  failure  of  appellees  to  fill  their  subscrip- 


Com'wealth  for  Satterly,  et  al.,  V,  H.  M.  Demaree,  et  al.      ii 

tions,  or  to  finish  their  advertising.  From  their  statements  it  may 
fairly  be  inferred  that  appellees  performed  their  agreement;  and 
they  are  not  to  be  denied  relief  because  they  might  have  made  more 
satisfactory  proof. 

But  if  all  had  doubts  on  this  subject,  we  could  not  reverse  on  the 
evidence  alone.  There  was  no  reason  why  appellant  should  sue. 
The  obligors  in  the  note  in  equity,  and  the  lien  of  Bars  did  not  give 
the  chancellor  jurisdiction  of  the  contest  between  Mosby  and  the 
q>pellees.  The  instruction  of  the  action  in  equity,  and  its  submis- 
sion to  the  chancellor,  was,  in  effect,  the  submission  of  an  action  at 
law  to  the  judge  without  the  intervention  of  a  jury.  In  such  a  case 
the  judgment  will  not  be  reversed  on  the  facts  unless  it  be  palpably 
wrong.    Such  is  not  the  case  here. 

Judgment  affirmed. 

Fairleigh,  for  appellant. 
Bramblett,  for  appellees. 


G)MMONWEALTH  FOR  SaTTERLY,  ET  AL.,  V.  HaRRISON  M.  DeMAREE, 

ET  AL. 

Limitations— Pleadings— Waiver. 

The  statute  of  limitations  cannot  be  invoked  to  escape  liability  by 
one  who  within  the  five  years  prior  to  the  beginning  of  the  action  has 
recognized  his  obligation  to  pay  and  made  payments  thereon. 

Pleadings— Waiver. 

The  failure  of  plaintiff  to  have  sued  upon  the  new  promise  instead 
of  the  old  is  cured  by  defendant's  answer. 

APPEAL  FROM  WASHINGTON  CIRCUIT  COURT. 

June  23, 1874. 

Opinion  by  Judge  Lindsay  : 

The  plea  of  limitation  bars  this  action  as  to  all  the  appellees 
except  the  deputy  sheriff,  Hall.  This  is  not  such  an  action  as  can 
be  maintained  on  the  sheriff's  bond.  He  in  no  sense  violated  his 
official  duty  in  collecting  the  two  executions  in  favor  of  Demaree, 
nor  in  failing  to  return  the  money  to  appellant,  in  view  of  the  fact 
that  Demaree  improperly  sued  out  the  executions,  and  had  no  legal 
right  to  receive  the  amount  collected,  without  first  releasing  Neman 
ft  0>.'s  attachment.    The  sheriff  might,  by  recognizing  appellants' 


12  Kentucky  Opinions. 

claim,  impose  upon  himself  a  personal,  but  not  an  official,  obliga- 
tion to  return  the  money.  The  right  of  action  growing  out  of  this 
personal  obligation  is  barred  by  the  lapse  of  five  years  without  suit. 

The  difficulty  with  Hall  is  that  within  five  years  he  has  distinctly 
and  unmistakably  recognized  his  obligation  to  repay  the  money ;  and 
his  answer  shows  that  since  the  institution  of  the  suit  he  has  made 
payments  on  the  claim.  Such  unequivocal  recognitions  of  his  obli- 
gation to  return  the  money  takes  the  case  out  of  the  statute  as  to 
him. 

It  is  true  that  appellants  ought  to  have  sued  on  the  new  promise, 
but  the  error  in  this  regard  is  cured  by  the  answer.  As  it  is  evident 
the  case  went  off  upon  the  statute  of  limitations,  we  deem  it  un- 
necessary to  notice  the  pleas  of  judgment,  and  the  set-offs  pleaded 
by  Hall. 

The  judgment  is  reversed  as  to  Hall,  and  the  cause  remanded  for 
further  proper  proceedings.  As  to  the  remaining  appellees,  the 
judgment  is  affirmed. 

IV.  H.  Hays,  for  appellant. 


J.  W.  Osborne  &  King  v.  William  Hallement. 

Attachment — New  Trial  on  Ground  of  Surprise. 

One  claiming  to  be  the  owner  of  a  contract  purchased  on  condition 
that  he  would  advance  money  to  the  seller,  and  who  has  not  done  so, 
may  be  required,  at  the  suit  of  the  seller's  creditors,  to  advance  the 

money. 

New  Trial — Surprise. 

Appellants  not  entitled  to  a  new  trial  on  the  ground  that  they  were 
surprised  because  appellee  did  not  take  the  deposition  of  a  certain  wit- 
ness. They  were  not  warranted  in  assuming  that  such  a  deposition 
would  be  taken,  but  should  have  taken  it  themselves. 

APPEAL,  FROM  LOUISVILLE  CHANCERY  COURT. 

June  24,  1874. 

Opinion  by  Judge  Lindsay  : 

The  claim  of  appellee  is  sufficiently  established  by  the  proof. 
King  failed  to  make  out  his  plea  of  payment,  the  settlement  at 
Doyles,  and  the  closing  up  of  the  sale  of  brick  on  a  former  contract, 
as  is  made  clear  by  the  statements  of  appellee,  and  the  production 


J.  W.  Osborne  &  King  v.  William  Hallement.  13 

by  him  of  receipts  and  tickets  for  brick  delivered  on  the  work  on 
Eighth  Street. 

King  did  not  controvert  the  grounds  of  attachment,  nor  did  he 
take  any  steps  whatever  to  have  it  discharged.  Appellee  was  there- 
fore entitled  under  his  attachment  lien  to  have  any  amount  that 
might  be  due  from  Osborne  to  King,  subjected  to  the  payment  of 
his  judgment.  Osborne  claims  to  be  the  beneficial  owner  of  King's 
contract  with  the  city  of  Louisville.  He  denies  that  his  purchase 
from  King  was  fraudulent,  and  states  that  he  had  paid  to  King,  be- 
fore the  institution  of  this  action,  a  sum  exceeding  the  amount  due 
from  the  city  on  the  work.  Taking  Osborne's  own  statement  of  the 
case,  he  was  to  advance  King  funds  to  be  expended  on  the  work. 

If  he  held  the  contract  as  a  security,  the  onus  was  on  him  to  show 
that  after  the  amounts  advanced  by  him  were  paid,  there  would  be 
nothing  left  of  the  sum  due  from  the  city  to  be  applied  to  the  pay- 
ment of  appellee's  claim.  If  he  became  the  absolute  owner  of  the 
contract,  inasmuch  as  he  admits  that  the  consideration  for  the  as- 
signment was  the  agreement  upon  his  part  to  advance  money  to 
King  from  time  to  time,  he  was  bound  to  show  that  he  had  advanced 
the  full  contract  price  for  the  assignment.  He  neither  proves,  nor 
attempts  to  prove,  either  one  of  these  essential  facts.  As  the  case 
was  presented,  the  chancellor  was  bound,  under  the  attachment  lien, 
to  satisfy  appellee's  claim  out  of  the  funds  in  his  hands. 

It  is  unnecessary,  therefore,  for  us  to  examine  that  branch  of  the 
case,  in  which  relief  was  claimed  under  the  provisions  of  the  Me- 
chanic's Lien  Law.  Appellants  were  not  entitled  to  a  new  trial. 
They  failed  to  show  that  they  were  surprised.  They  had  no  right 
to  rely  upon  appellee's  taking  the  deposition  of  Osborne.  If  they 
desired  the  benefit  of  his  testimony  he  should  have  offered  himself 
as  a  witness.  Besides,  by  an  order  made  in  open  court,  the  cause 
was  set  for  hearing.  Appellants  were  bound  to  take  notice  of  this 
order,  and  if  they  really  had  expected  appellee  to  take  the  deposi- 
tion of  Osborne,  this  was  notice  to  them  that  he  had  abandoned 
his  intention  to  do  so  and  they  should  at  once  have  taken  steps  to 
secure  his  testimony.  The  injury  received  by  the  counsel  was  after 
the  submission  of  the  cause,  and  consequently  could  not  have  inter- 
fered with  its  preparation. 

Judgment  affirmed. 

Harrison,  for  appellants, 
Easlin  &  Calloway,  for  appellee. 


14  Kentucky  Opinions. 

Henry  £)ent  v.  E.  Benjamin. 

Guardian  and  Ward — ^Adverse  Interests  Not  Permitted. 

A  guardian  is  bound  to  protect  the  interests  of  his  ward,  and  may 
not  place  himself  yoluntarily  in  a  position  where  his  own  personal  In- 
terests are  in  conflict  with  those  of  his  ward. 

Adverse  Interests— Ward's  Election.  ' 

Where  a  guardian  buys  in  property  at  a  low  price  where  it  is  his 
ward's  interest  to  have  the  property  sold  at  a  high  price,  such  a  sale 
may  be  set  aside. 

Ward's  Election. 

If  such  a  sale  is  consummated  the  wards  may  either  elect  to  treat 
such  a  purchase  as  having  been  made  in  trust  for  them,  or  may  re- 
pudiate it 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

June  25,  1874. 

Opinion  by  Judge  Lindsay  : 

It  is  not  necessary  to  determine  whether  the  alleged  irregularities 
in  the  proceedings  resulting  in  the  decretal  sale  of  the  Fifth  Street 
property,  would  be  suiKcient  to  justify  the  chancellor  in  refusing 
to  adjudge  a  specific  performance  of  the  contract  between  Dent 
and  Benjamin.  After  the  judgment  in  the  case  of  Mankin  v.  Dent 
had  been  rendered,  and  before  the  sale,  Henry  Dent  became  the 
statutory  guardian  of  the  infants  whose  property  was  about  to  be 
sold.  He  was,  from  the  date  of  his  qualification  as  guardian,  bound 
to  protect  the  interest  of  his  wards,  and  had  no  right  to  place  him- 
self in  a  position,  in  which  his  own  interests  would  be  antagonistic 
to  those  of  his  wards. 

As  a  bidder  at  the  commissioner  s  sale,  he  was  clearly  interested 
in  purchasing  the  property  at  the  lowest  possible  sum.  His  wards 
were  interested  in  having  it  sold  at  the  highest  market  price.  Here 
was  a  conflict  of  interest  brought  about  by  the  voluntary  act  of 
Dent.  It  is  no  excuse  that  his  life  estate  was  being  sold.  He  knew 
that  it  was  to  be  sold,  when  he  accepted  the  position  of  guardian ; 
and  having  acted  in  the  premises  with  full  knowledge  of  all  the 
facts,  he  cannot  make  his  own  protection  a  pretext  for  disregarding 
his  obligation  to  guard  the  interests  of  his  wards.  Whilst  in  ex- 
ceptional cases,  guardians  may  be  allowed  to  purchase  the  estate  of 
their  wards,  when  sold  by  order  of  a  court  of  ccHnpetent  jurisdic- 
tion, it  is  always  incumbent  upon  them  to  show  the  utmost  good 


D.  M.  Bowman,  et  al.,  v.  McBrayer,  Trapnell  &  Co.       15 

faith,  and  that  the  purchase  is  not  prejudicial  to  the  ward.  Here  it 
is  evident  that  the  property  was  sold  for  less  than  its  real  value. 
It  is  also  manifest  that  the  lien  of  the  infants  had  been  released,  and 
that  Dent,  the  purchaser,  did  not,  at  the  time,  nor  at  any  subsequent 
time,  set  apart  to  their  credit  any  part  of  the  amounts  to  which  they 
are  entitled.  Further  than  this,  he  has  failed  to  show  that  he  was, 
at  the  time  the  lien  was  released  and  the  legal  title  to  the  property 
passed  to  him,  or  that  he  is  now,  able  to  pay  to  his  wards  the 
amounts  to  which  they  are  respectively  entitled.  It  may  be  that 
the  sureties  on  his  bonds  as  guardian  are  solvent.  Of  this  we  know 
nothing.  But  even  if  they  are  solvent  now,  they  may  not  be,  when 
the  wards  arrive  at  age.  It  is  perfectly  clear  that  the  wards  may 
elect  to  treat  Dent  as  holding  in  trust  for  them,  and  it  is  more  than 
probable  they  will  elect  to  do  so,  in  the  event  they  are  unable  to 
recover  on  the  guardian's  bond  the  amounts  due  them  under  the  sale. 

A  vendee  cannot  be  compelled  to  accept  a  title  of  this  character. 
Such  a  title  is  not  marketable.  No  reasonably  prudent  man  would 
purchase  the  property  and  risk  the  action  of  Dent's  children  after 
they  arrive  at  age.  This  is  not  a  mere  doubtful  title.  It  is  not  good, 
and  cannot  be  made  good  until  Dent's  children  arrive  at  age,  and 
ratify  and  confirm  his  purchase. 

The  chancellor  properly  refused  to  decree  a  performance  of  the 
contract,  and  properly  adjudged  that  it  should  be  vacated  and  held 
for  naught. 

Judgment  affirmed, 

Bart,  Goodloe,  for  appellant. 
Gibson  &  Gibson,  for  appellee. 


D.  M.  Bowman,  et  al.,  v.  McBrayer,  Trapnell  &  Co. 

Corporation,  Contracts  of—Evidence,  Admissibility  of. 

Where  a  note  does  not  purport  to  bind  a  corporation  or  point  to  its 
funds  as  the  source  from  which  it  is  to  be  paid,  the  use  of  the  per- 
sonal possessive  "we"  rebuts  the  presumption  arising  from  the  subse- 
quent descriptive  words  "president  and  directors,"  and  imparts  an  in- 
dividual obligation  on  those  signing  it. 

Evidence,  Admissibility  of. 

In  the  absence  of  fraud  or  mistake  the  intention  of  the  parties  to  a 
written  contract  must  be  gathered  from  the  writing,  and  parol  evi- 
dence is  inadmissible  to  show  that  the  appellees  did  not  so  understand 
the  note. 


i6  Kentucky  Opinions. 

APPEAL  FROM  MERCER  CIRCUIT  COURT. 

June  26,  1874. 

Opinion  by  Judge  Lindsay  : 

In  the  case  of  Yowell  v.  Dodd,  et  al,,  3  Bush  581,  the  promise  was 
by  the  "president  and  directors"  of  the  corporation.  The  directors 
constituted  the  corporate  representatives  of  the  turnpike  company, 
and  when  they  spoke  in  their  corporate  capacity,  the  conclusion 
was  clear  that  they  meant  to  bind  the  corporation,  and  not  them- 
selves, and  there  was  nothing  in  the  body  of  the  note  to  rebut  that 
presumption. 

In  the  note  in  this  case,  the  use  of  the  personal  possessive  "we," 
rebuts  the  presumption  arising  from  the  subsequent  use  of  the  de- 
scriptive words,  "president  and  directors,"  and  necessarily  imparts 
an  individual  obligation  upon  the  part  of  each  person  signing  the 
note. 

This  note  differs  from  the  notes  considered  in  the  cases  of  Whit- 
ney V,  Sudduth,  et  al.,  4  Met.  67,  and  Trask  v.  Roberts,  i  B.  Mon. 
201,  in  the  fact  that  in  those  notes  the  promise  was  several,  as  well 
as  joint,  but  the  reasoning  in  those  cases  is  clearly  applicable  here. 

The  note  sued  on  does  not  purport  to  bind  the  turnpike  company, 
nor  does  it  point  to  the  funds  of  the  company  as  the  source  from 
which  it  is  to  be  paid.  In  the  absence  of  fraud  or  mistake,  the  inten- 
tion of  parties  to  a  written  contract  must  be  gathered  from  the  writ- 
ing. Hence  the  averments  of  the  answer  to  the  effect  that  appel- 
lants did  not  intend  to  bind  themselves  individually,  and  that  appel- 
lees did  not  so  understand  the  note,  were  inadmissible. 

The  demurrer  was  properly  sustained. 

Judgment  affirmed. 

Kyle  &  Poston,  for  appellatUs, 
J.  C.  Thompson,  for  appellees. 


S.  F.  Buckley,  et  al.,  v.  Richard  Board. 

Real   Estate,   Purchaser  in   Good   Faith — Party   Not   Prejudiced  by  a 
Judgment  Has  No  Cause  of  Complaint 

What  constitutes  a  valid  consideration  is  a  matter  of  law,  and  a  pur- 
chaser of  real  estate  claiming  to  have  paid  a  valid  consideration  should 
show  what  he  did  pay,  that  the  court  may  Judge  of  its  validity. 

Party  Not  Prejudiced  by  Judgment 

A  party  not  prejudiced  by  the  Judgment  has  no  cause  of  complaint. 


E.  M.  Marshall,  et  al.,  v.  J.  M.  Meyer.  17 

APPEAL  FROM  ANDERSON  CIRCUIT  COURT. 

June  28»  1874. 

Opinion  by  Judge  Lindsay  : 

Mrs.  Whittaker,  the  only  party  whose  interest  is  affected  by  the 
judgment,  did  not  answer  the  petition,  nor  does  she  appeal  frcrni 
the  judgment.  O'Hara's  answer  interposed  no  defense ;  he  was  par- 
ticular to  deny  all  the  negative  averments  of  the  petition,  but  carefully 
avoided  stating  what  consideration,  if  any,  passed  from  him  to 
Whittaker  at  the  time  the  house  and  lots  were  conveyed  to  him.  It 
is  true  he  claims  to  have  purchased  in  good  faith,  and  to  have  paid 
a  good  and  valid  consideration. 

What  constitutes  a  good  and  valid  consideration  is  a  matter  of 
law;  O'Hara  should  have  stated  what  the  consideration  was;  and 
the  court  could  then  have  determined  whether  it  was  good  and  valid. 
As  to  Mrs.  Whittaker  and  O'Hara,  the  petition  might  properly  have 
been  taken  for  confessed.  Buckley  has  no  cause  for  complaint 
He  owes  on  the  purchase  of  the  house  and  lots  over  three  hundred 
and  twenty-five  dollars.  The  judgment  against  him  does  not  amount 
to  that  sum.  The  payment  of  the  judgment  entitles  him  to  a  credit 
pro  tanto  on  his  note  to  Mrs.  Whittaker.  If  he  desired  the  court  to 
compel  Mrs.  Whittaker  to  convey  in  accordance  with  her  bond  for 
title,  he  should  have  made  his  answer  a  cross  petition  against  her. 

Neither  of  the  appellants  being  in  any  degree  prejudiced  by  the 
judgment,  it  must  be  affirmed. 

DrafRn  &  Portwood,  for  appellants. 


E.  M.  Marshall,  et  al.,  v,  J.  M.  Meyer. 

Arbitration — Parties  to  Action — ^Waiver  of  Capacity  of  Surety. 

Where  an  action  to  arbitrate  is  brought  by  heirs  Instead  of  by  ad- 
ministrator, and  defendant  pleads  to  the  merits  and  afterwards  agrees 
to  submit  the  cause  to  a  master  to  audit  and  settle  the  accounts  be- 
tween the  parties,  and  fails  to  demur  on  the  ground  of  want  of  capac- 
ity to  sue,  he  waives  his  right  Xo  object  to  such  capacity  thereafter. 
See  Civil  Code,  §§  120,  121,  122. 

appeal  from  botle  circuit  court. 

June  30, 1S74. 

Opinion  by  Judge  Peters  : 

The  parties  to  this  litigation  agreed  in  writing  to  submit  the 
matters  of  difference  between  them  to  arbitrators  named  in  the 
2 


i8  Kentucky  Opinions. 

writing.  They  met  at  the  time  and  place  agreed  upon  with  the 
arbitrators,  and  appellee  entered  upon  the  investigation  without  any 
objection  to.  the  legal  capacity  of  appellants  to  assert  the  claim 
against  him. 

After  the  award  was  made,  this  action  was  brought  upon  the 
writing  to  submit,  and  appellee,  instead  of  filing  a  demurrer  to  the 
petition  on  the  ground  that  the  administrator,  and  not  the  heirs  of 
Mrs.  Marshall,  should  sue,  answered,  and  denied  an  indebtedness  to 
appellants,  and  insisted  that  he  was  entitled  to  credits  to  a  large 
amount  which  the  arbitrators  had  failed  to  allow  him,  and  for  which 
he  then  professed  to  produce  the  vouchers;  and  by  consent 
the  cause  was  transferred  to  the  equity  docket,  and  by  agreement  of 
the  parties  it  was  referred  to  the  master  to  audit  and  settle  the 
accounts  between  them. 

Mrs.  Marshall  had  been  dead  about  sixteen  years  when  the 
parties  entered  into  the  agreement  to  arbitrate  their  matters;  and 
the  presumption  would  arise  from  the  lapse  of  time,  that  her  debts, 
if  there  were  any  outstanding  against  her  when  she  died,  had  been 
paid,  and  what  remained  of  the  personalty  belonged  to  her  heirs. 
But  if  that  were  not  so,  and  the  personal  representative  was  the 
proper  person  to  enter  into  the  arbitration  and  to  bring  the  suit, 
appellee  waived  all  such  objections,  first,  by  his  written  agreement 
to  arbitrate  these  differences  with  appellants,  and  second,  by  answer- 
ing to  the  merits  and  failing  to  demur  to  the  petition,  on  the  specific 
ground  of  want  of  legal  capacity  in  appellants  to  sue.  §§  120,  121, 
122,  Civil  Code.  But  besides  all  this,  it  appears  in  the  record  that 
the  parties,  by  agreement,  had  the  cause  transferred  to  the  equity 
docket,  and  it  was  then  by  the  consent  of  the  parties,  referred  to  the 
master  to  hear  the  evidence,  and  to  audit  and  state  the  accounts  be- 
tween them,  thus,  in  effect,  setting  aside  the  award,  and  agreeing 
that  the  chancellor  should  take  jurisdiction  of  the  case,  and  settle 
their  rights  according  to  the  principles  of  equity.  The  cx)urt  had 
jurisdiction  of  the  subject-matter  of  the  controversy ;  and  after  the 
parties  had  made  the  agreements  herein  recited,  the  court  below 
erred  in  dismissing  the  petition. 

Wherefore  the  judgment  is  reversed  and  the  cause  is  remanded, 
with  directions  to  proceed  to  adjudicate  the  rights  of  the  parties 
upon  the  preparation  and  evidence  in  the  case,  and  for  further  pro- 
ceedings consistent  herewith. 

VanWinkle  &  Rodes,  for  appellants. 
C.  C.  Fox,  for  appellee. 


S.  p.  Worsham's  Adm'r  v.  Pearson  Miller.  19 

S.  P.  Worsham's  Adm'r  v.  Pearson  Miller. 


Bankniptcj^— New  Promise  to  Pay— Recovery  of  Interest. 

A  promise  to  pay  a  debt  after  discharge  in  bankruptcy  is  upon  a 
valid  consideration  and  may  be  enforced. 

Interest 

If  plaintiff  may  recover  on  such  a  debt  he  is  entitled  to  recover  in- 
terest as  well  as  principal. 

appeal  from  LINCOLN  CIRCUIT  COURT. 

June  30,  1874. 

Opinion  by  Judge  Lindsay  : 

The  demurrer  to  the  original  petition  was  properly  overruled. 
The  promise  to  pay  the  debt  after  the  discharge  in  bankruptcy  is 
sufficiently  averred,  and  the  right  to  recover  is  based  upon  said 
promise. 

There  is  some  proof  conducing  to  establish  the  promise.  The 
statement  of  the  intestate  made  to  J.  W.  M.  Miller  in  Atlanta, 
whilst  of  itself  is  insufficient  to  establish  the  promise,  certainly  does 
conduce  to  show  that  Worsham  had  agreed  to  pay  the  debt;  and 
the  interview  between  Worsham  and  Saufley,  when  considered  in 
the  light  of  said  statement  to  J.  W.  M.  Miller,  would  have  author- 
ized a  jury  to  infer  the  making  of  the  promise.  Certainly,  with 
such  proof  before  the  jury,  the  court  should  not  have  instructed 
as  in  the  case  of  a  nonsuit.  The  finding  of  the  court  must  in  this 
case  be  treated  as  the  verdict  of  a  jury.  It  was  not  error  to  give 
judgment  for  interest;  if  the  intestate  agreed  to  pay  the  debt  at 
all,  he  agreed  to  pay  all  of  it,  interest  as  well  as  principal. 

Judgment  afHrmed. 

Hill  &  Alcorn,  for  appellant. 
VpMvinkle  &  Rodes,  for  appellee. 


J.  H.  Porter's  Adm'r  v.  John  B.  Castleman. 


Covenants  of  Warrantsr— Compromise— Answer. 

An  action  for  breach  of  covenants  that  a  vessel  is  free  of  liens  and 
incumbrance,  settles  nothing  where  compromised,  and  which  did  not 
result  in  a  Judgment. 


20  KENTUCKY  Opinions. 

Compromise. 

An  agreement  by  the  owner  in  a  suit  between  the  owner  of  sach 
Tessel  and  lien  holder,  to  recognize  the  existence  of  a  lien  and  pay  the 
same  by  way  of  compromise,  does  not  admit  the  validity  of  sach  lien 
in  an  action  for  breach  of  coYenant& 

Answer. 

A  party  sued  for  breach  of  covenants  may  answer  that  there  were  no 
liens,  notwithstanding  that  the  covenantee  has  admitted  and  paid  such 
liens  by  way  of  compromise  and  to  avoid  litigation. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

June  30,  1874. 

Opinion  by  Judge  Lindsay  : 

Appellant  complains  of  a  breach  of  appellee's  covenants,  that  the 
steamer,  Pink  Varble,  was,  when  sold,  "free  of  any  and  every  lien, 
privilege  or  incumbrance."  The  proceedings  in  the  district  court 
at  Memphis,  Tenn.,  did  not  result  in  judgment,  and  hence  do  not 
establish  the  existence  of  the  claims  asserted  therein  by  the  libel- 
ants. The  fact  that  appellee  compromised  wkh  the  parties  assert- 
ing their  claims,  proves  nothing,  as  he  had  the  right  to  escape  even 
unfounded  litigation  by  buying  his  peace,  and  it  may  have  been, 
and  doubtless  was,  much  cheaper  to  compromise  than  to  make  suc- 
cessful defense. 

The  answer  of  Castleman,  so  far  as  he  attempts  to  deny  the  exist- 
ence of  the  liens  in  favor  of  Downs,  etc.,  is  as  specific  as  are  the 
allegations  of  the  petitions;  and  appellants  cannot  complain  that 
their  general  averments  to  the  effect  that  there  were  such  liens, 
were  not  taken  for  confessed.  The  testimony  of  Johnson  does  not 
establish  a  contract  of  affreightment  between  the  parties  of  the 
Pink  Varble  and  any  of  the  parties  claiming  to  be  salvors  of  the 
cotton  taken  from  the  wreck  of  the  W.  A.  Caldwell.  The  best 
evidence  as  to  the  nature  of  the  agreements  between  the  master 
of  the  Varble  and  Etowns  and  Johnson  are  the  receipts  given  to 
each  of  them.  These  receipts  were  not  produced,  nor  is  there  any- 
thing in  the  record  explaining  their  contents.  The  whole  testimony 
tends  to  show  that  Downs,  Johnson  and  the  officers  and  crew  of 
the  Varble  were  the  joint  salvors  of  the  cotton,  and  that  it  was 
carried  to  Memphis  on  their  joint  account.  There  is  certainly  no 
such  contract  proven  as  would  bind  the  boat.  This  view  of  the 
case  makes  it  unnecessary  to  examine  the  remaining  questi(»is  pre- 
sented in  the  agreement.    It  is  clear  that  appellee  is  not  bound  to 


N.  E.  Vaughan  and  Wife  v.  H.  C.  Melone.  21 

make  good  the  loss  resulting  to  appellant  from  every  claim  that 
parties  may  choose  to  assert  against  the  boat. 
Judgment  affirmed. 

Havlan,  Wilson,  for  appellant. 
Boyle,  for  appellee. 


N.  E.  Vaughan  and  Wife  v.  H.  C.  Melone. 

Principal  and  Agent— Duty  of  Agent— Advene  Interests. 

An  agent  must  look  after  the  interests  of  his  principal.  It  is  incon- 
sistent with  his  duties  to  purchase  his  principal's  property  for  his  own. 
heneilt 

Daty  of  Agent. 

Nothing  short  of  fraud  by  the  principal  or  imperative  necessity  will 
justify  an  agent  in  placing  himself  in  an  attitude  hostile  to  his  princi- 
pal's interests. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT. 

June  30,  1874. 

Opinion  by  Judge  Lindsay  : 

Melone  neither  alleges  nor  proves  that  he  was  induced  to  enter 
into  the  contract  with  appellants  by  reason  of  their  assurance  that 
Batea  had  agreed  "to  wait  on  them  two  years  for  the  debt,"  nor  does 
he  allege  or  prove  that  Bates  had  not  so  agreed. 

Whilst  it  is  no  doubt  true  that  Melone  intended  to  befriend 
Vaughan  and  wife,  it  is  nevertheless  true  that  by  his  contract  with 
them  he  became  their  agent,  charged  with  the  duty  of  renting  out 
the  mortgaged  prc^rty  and  of  collecting  and  applying  for  their 
benefit,  and  in  satisfaction  of  their  debts,  the  accruing  rents. 

He  was  not  bound  to  protect  the  mortgaged  property  by  paying 
Bates  judgment;  but  it  was  inconsistent  with  his  duties  as  agent  to 
purchase  the  property  for  his  own  benefit.  By  doing  so  he  antag- 
onized his  interest  to  that  of  his  principal;  and  there  is  nothing  in 
the  record  tending  to  show  that  he  was  compelled  to  make  the  pur- 
chase in  order  to  protect  himself.  His  claim  against  appellants  was 
only  about  thirteen  hundred  dollars  ($1,300),  according  to  his  own 
showing;  and  in  the  absence  of  proof  to  the  contrary,  we  may  well 
assume  that  the  one  hundred  seventeen  (117)  acres  of  land  was 
ample  indemnity  to  him,  even  if  he  had  let  the  livery  stable  prop- 


22  Kentucky  Opinions. 

erty  go;  nothing  short  of  fraud  by  the  principal  or  imperative  ne- 
cessity will  justify  an  agent,  who  is  a  quasi  trustee,  in  placing  him- 
self in  an  attitude  hostile  to  the  interest  of  his  constituent. 

Neither  fraud  nor  imperative  necessity  is  shown  in  this  case ;  Me- 
lone  has  a  lien  upon  the  livery  stable  property  for  the  amount  paid 
on  the  Bates  judgment,  also  the  amount  paid  in  satisfaction  of  the 
vendor's  lien,  and  for  such  balance  as  may  be  due  hinl  after  the 
account  for  debts  paid  .under  the  contract  evidenced  by  the  mort- 
gage, and  the  rents  received  on  the  mortgaged  property,  shall  be 
settled;  and  if  the  livery  stable  property  fails  to  satisfy  any  por- 
tion of  the  last  mentioned  claim,  these  appellants'  interest  in  the 
117  acres  of  land  may  be  subjected  to  such  judgment  and  also  the 
judgment  of  reasonable  compensation  to  Melone  for  his  services 
as  agent. 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

Jeff  Brown,  A,  G.  Roberts,  for  appellants. 

Harwood,  for  appellee. 


C.  M.  &  J.  W.  Whipp  z\  Frank  Wolford,  et  al. 

Notes  for  Purchase  Moneys-Priority— Mortgages. 

The  priority  of  purchase  money  mortgage  notes  does  not  depend 
upon  the  time  such  debts  fall  due. 

Mortgage. 

A  mortgage  to  secure  a  number  of  notes  maturing  at  different  times 

secures  all,  and  there  is  no  priority. 

Parties  to  Action. 

All  the  holders  of  such  notes  must  be  made  parties  to  foreclose,  and 

the  rights  of  each  may  be  determined  therein. 

•   APPEAL.  PROM  CASEY  CIRCUIT  COURT. 

June  30,  1874. 

Opinion  by  Judge  Pryor  : 

All  the  notes  executed  for  the  purchase  money  of  the  land  oper- 
ated as  a  lien  upon  it,  and  were  equally  secured.  We  have  been  un- 
able to  find  any  case  where  the  priority  of  liens  was  made  to  depend 
upon  the  time  the  claim  or  note  evidencing  the  debt  fell  due.  When 
mortgages  are  executed  to  different  parties  at  the  same  time  to  se- 


C.  M.  &  J.  W.  Whipp  v.  Frank  Wolford,  et  al.  23 

cure  different  debts,  and  recorded,  that  mortgage  where  the  right 
to  foreclose  first  exists,  by  reason  only  that  the  note  secured  thereby 
first  matures,  can  have  no  priority  over  the  mortgage  where  the 
debts  are  not  due.  If  not  so,  this  equality  of  security  by  way  of 
lien  would  be  destroyed ;  and  the  rule  be  established  that  the  note 
first  due  must  be  first  satisfied  out  of  the  property  intended  to  se- 
cure all,  and  without  any  preference  whatever  given  by  the  writing 
creating  the  lien.  It  is  true  that  the  assignee  obtaining  a  note  not 
matured  when  assigned,  has  notice  that  the  other  heirs'  notes  are 
due,  for  the  reason  that  their  liens  are  retained  in  the  deed;  but 
he  has  notice  also  that  all  of  the  notes  are  equally  secured,  the  writ- 
ing giving  no  preference  to  the  one  over  the  other.  The  party 
whose  note  is  due  has  the  right  to  proceed  at  once  to  enforce  his 
lien  or  to  obtain  his  personal  judgment,  and  this  is  the  only  advan- 
tage he  has  over  those  whose  lien  notes  have  not  matured.  In 
attempting  to  enforce  his  lien  all  other  parties  holding  lien  notes 
must  be  brought  before  the  court  in  order  that  they  may  assert  their 
equities;  and  whilst  the  chancellor  cannot  subject  the  property  to 
the  payment  of  any  lien  note  not  due,  still  he  will  protect  the  rights 
of  the  holder  by  selling  the  land  subject  to  the  liens  evidenced  by 
the  notes  not  matured.  This  is  the  equitable  position  assignees  of 
such  papers  occupy  with  reference  to  each  other.  They  take  the 
paper  in  which  all  are  equally  secured  by  the  lien  retained,  and  no 
sale  will  be  made  in  favor  of  one  without  securing  the  rights  of  the 
other.  If  the  party  whose  note  is  due  enforces  his  lien,  he  can  pur- 
chase the  whole  or  a  part  of  the  land  subject  to  the  lien  not  due, 
but  will  not  be  permitted,  by  his  own  act  or  by  reason  of  his  note 
first  falling  due,  to  deprive  others  of  any  equity  equal  in  any  respect 
to  his  own.  Where  the  vendor  of  the  land  or  another  holds  all  the 
lien  notes,  and  he  undertakes  to  enforce  the  Hen  for  only  a  part  of 
the  lien  debt,  the  judgment  is  to  sell  absolutely  without  receiving 
any  other  lien  in  his  favor  or  selling  subject  to  any,  as  he  is  in  a 
condition  to  purchase  only  so  much  as  will  pay  his  debt  due,  leav- 
ing the  balance  to  satisfy  the  other  liens;  and  besides  the  question 
of  priority  does  not  arise.  He  will  not  be  allowed  to  encumber  the 
title  by  selling  subject  to  his  own  liens.  Oifering  to  sell,  he  must 
make  to  the  purchaser — or  place  the  chancellor  in  a  condition  to 
do  so — a  clear  title  to  what  he  buys.  This  is  the  distinction 
between  cases  where  one  holds  all  the  lien  notes,  and  where  they 
have  been  assigned  to  different  parties.  The  holder  of  all  the  notes 
is  in  a  condition  to  protect  himself,  whilst  in  a  case  like  this,  equity 


24  Kentucky  Opinions. 

alone  can  afford  relief.  Broadwell  v.  King,  3  B.  Mon.  449 ;  Burrus 
V.  Roulhac's  Adm'r,  2  Bush  39 ;  Enson  v.  Bisque,  Mss.  Opinion  of 
Sept.  II,  '72. 
Judgment  affirmed. 

Owsley  &  Burdett,  for  appellants, 
VanWinkle,  for  appellees. 


M.  C.  Slaughter,  et  al.,  v.  City  of  Louisville. 

Public  Improvement*— Discretion  of  City  Council— Power. 

The  discretion  of  the  city  council  in  determining  what  street  im- 
provements are  to  be  made  cannot  be  controlled  by  the  courts. 

Power  of  Courts  in  Such  Cases. 

When  taxation  is  imposed  for  a  constitutional  object  the  courts  can- 
not adjudicate  either  upon  the  Justice  or  policy  of  such  imposition. 
Courts  cannot  legislate. 

Conclusions  Pleaded. 

To  aver  that  the  cost  of  a  public  improvement  amounts  to  a  prac- 
tical confiscation  of  property  is  only  an  averment  of  a  conclusion. 

Taxation  for  Improvements. 

The  right  of  the  courts  to  determine  when  taxation  is  so  excessive 
as  to  amount  to  confiscation  is  undoubted,  but  will  only  be  exercised 
where  legislative  power  has  been  palpably  abused  and  the  same  is 
clearly  shown. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

June  30,  1874. 

Opinion  by  Judge  Lindsay  : 

The  petition  sets  out  a  state  of  facts  tending  to  show  that  the 
improvement  ordered  to  be  made  is  not  a  matter  of  immediate  ne- 
cessity either  to  the  general  or  local  public.  This  was  a  question, 
however,  for  the  general  council  of  the  city  to  determine,  and  its 
discretion  is  not  subject  to  the  control  of  the  courts.  The  power  of 
municipal  corporations  to  improve  their  streets  cannot  be  ques- 
tioned. The  time  at  which  the  improvements  shall  be  made  is  a  mat- 
ter of  local  governmental  policy,  to  be  determined  by  the  legislative 
department. 

When  taxation  is  imposed  for  a  constitutional  object,  the  judi- 


George  Scott  v.  Davis,  Starts  &  Co.  25 

ciary  cannot  adjudicate  upon  its  policy  or  justice  without  inspiring 
a  function  clearly  legislative  in  its  character. 

Here  the  ordinance  provides  that  the  subject  of  local  taxation 
shall  be  taxed  in  accordance  with  the  provisions  of  the  city  charter ; 
and  under  this  charter  this  court  has  time  and  again  decided  that 
uniformity  and  approximate  equality  of  street  taxation  are  clearly 
attainable. 

Appellants  allege  that  the  contemplated  improvement  cannot  be 
made,  except  at  "such  a  cost  as  will  amount  to  a  practical  confisca- 
tion of  their  property."  It  is  apparent  that  this  is  but  the  averment 
of  a  legal  deduction.  What  constitutes  "a  practical  confiscation" 
is  a  question  for  the  court  to  decide  and  it  must  be  decided  from 
the  facts  appearing  in  the  record. 

Appellants  do  not  state  the  value  of  their  property  nor  the  prob- 
able cost  of  the  work ;  nor  does  it  necessarily  follow  from  any  and 
all  facts  stated  that  the  work,  although  necessary  at  this  time,  will 
not,  when  done,  enhance  the  value  of  their  property  in  an  amount 
equal  to  the  tax  they  are  required  to  pay. 

Whatever  right  the  judiciary  may  have  to  interfere  for  the  pro- 
tection of  the  citizen  when  taxation  becomes  so  excessive  as  to 
amount  to  exploitation  under  the  forms  of  law,  it  is  manifest  that 
this  right  should  not  be  exercised  except  in  cases  in  which  it  is  pal- 
pable that  the  legislative  power  of  taxation  has  been  so  abused  that 
the  taxpayers  .  are  being  spoliated  and  their  property  arbitrarily 
taken  in  violation  of  that  fundamental  principle  of  our  government 
"that  absolute  arbitrary  power  over  the  lives,  liberty  and  property 
of  freedmen  exists  nowhere  in  a  republic." 

The  petition  under  consideration  makes  out  no  such  state  of  case. 
The  demurrer  was  properly  sustained,  and  appellants  failing  to 
amend  the  chancellor  did  not  err  in  dismissing  the  petition. 

Judgment  affirmed, 

Cochran,  for  appellants. 
Burnett,  for  appellee. 


George  Scott  v.  Davis,  Starts  &  Co. 

Debt— Defense— Sutute  of  Frauds. 

If  defendant  only  agreed  to  stand  good  for  payment  and  the  goods 
were  bought  by  another  on  his  own  aecount,  he  is  not  liable  on  such 
an  agreement  unless  the  same  is  in  writing. 


26  Kentucky  Opinions. 

Defense. 

Where  goods  were  contracted  (or  by  Anderson,  the  fact  that  they 
were  charged  to  Scott  did  not  create  any  liability  on  Scott,  and  a  sub- 
sequent promise  by  Scott,  unless  in  writing  or  made  before  delivery 
was  completed,  would  not  bind  him  to  pay  for  such  goods. 

Where  in  a  contract  between  Anderson  and  Scott  the  latter  agreed 
to  pay  for  such  goods,  but  failed  to  do  so,  the  seller  could  not  recover 
from  Scott. 

Evidence. 

Such  written  contract  between  Anderson  and  Scott  is  not  admissible 
in  evidence  in  a  suit  by  the  seller  to  collect  from  both  Anderson  and 
Scott. 

APPEAL  FROM  JEFFERSON  COURT  OF  COMMON  PLEAS. 

June  30,  1874. 

Opinion  by  Judge  Lindsay: 

Scott's  defense  assumes  two  phases :  He  denies  that  the  material 
was  sold  and  delivered  to  him,  or  on  his  credit,  or  that  he  agreed  to 
pay  any  portion  of  the  price  therefor,  except  as  directed  by  Marshall 
and  Anderson.  He  also  claims  that  any  agreement  to  pay,  that  may 
have  been  made  by  him  was  a  promise  to  answer  for  the  debt  of 
Marshall  and  Anderson,  and  insists  that  he  cannot  be  bound  thereby 
unless  it  be  shown  that  the  agreement  was  in  writing.  This  last  de- 
fense is  not  directly  raised  by  the  pleadings,  but  inasmuch  as  ap- 
pellees ignore  Marshall  and  Anderson,  and  sue  Scott  as  the  original 
purchaser,  the  latter  can  rely  on  the  statute  of  frauds  in  case  such 
a  ground  of  defense  is  developed  by  the  proof. 

It  is  unnecessary  to  review  the  testimony.  It  is  sufficient  to  say 
that  there  was  evidence  before  the  jury,  conducing  on  one  hand  to 
establish  appellees'  claim,  and  on  the  other  to  make  good  appellant's 
defenses. 

Instruction  No.  5,  given  for  appellant,  is  a  correct  exposition  of 
the  law  of  the  case,  upon  the  hypothesis  that  the  credit  was  ex- 
tended to  Scott,  and  the  material  delivered  upon  his  agreement  to 
pay.  Instructions  Nos.  i,  2  and  3,  given  for  appellees,  were  cal- 
culated to  mislead,  and  are  not  entirely  consistent  with  instruction 
No.  5.  It  is  clear  that  the  material  was  contracted  for  by  Anderson ; 
and  yet  these  in  effect  declare,  that  if  the  credit  was  given  to  Scott, 
whether  Anderson  had  the  right  to  represent  him  or  not,  or  whether 
Anderson  professed  to  have  such  right,  and  Scott  afterward  at  any 
time  agreed  to  pay  for  it,  that  the  law  was  for  appellees,  unless  An- 
derson, either  with  authority  bought  for  Scott,  or  without  authority 


George  Scott  v.  Davis,  Starts  &  Co.  27 

bought  for  him,  ratified  his  purchase,  and  accepted  the  material  pur- 
chased. The  mere  fact  that  appellees  charged  to  Scott,  and  deter- 
mined to  look  to  him  for  pay,  did  not  create  a  liability  on  his  part.  The 
debt  would,  notwithstanding  all  this,  be  that  of  Anderson  or  of  the 
firm  of  Marshall  and  Anderson ;  and  a  subsequent  promise  by  Scott 
to  pay  it,  would  not  bind  him  unless  it  was  in  writing,  or  unless  it  was 
made  before  the  delivery  of  the  material  was  completed,  and  was 
intended  to  substitute  him  for  Marshall  and  Anderson  as  the  prin- 
cipal debtor.  Instruction  No.  5,  as  before  stated,  g^ves  the  law 
upon  this  branch  of  the  case,  with  accuracy  and  precision.  Instruc- 
tion No.  4  is  still  more  objectionable.  Scott,  in  a  settlement  with 
Marshall  and  Anderson,  may  have  charged  them  with  the  amount 
due  to  appellees  on  the  building  materials,  knowing  at  the.  time  that 
the  same  had  been  charged  on  the  books  of  appellees  to  him ;  yet, 
notwithstanding  all  this,  and  the  further  fact  that  the  materials 
were  ordered  to  be  used  on  his  house,  it  does  not  necessarily  fol- 
low that  he  is  liable  to  appellee.  If  Davis,  Starts  )&  Co.,  of  their 
own  motion  charged  the  material  to  Scott,  merely  because  they  were 
unwilling  to  credit  Marshall  and  Anderson,  they  cannot  connect 
this  unauthorized  act  upon  their  part,  with  the  subsequent  action  of 
Davis  in  a  transaction  with  which  they  had  nothing  to  do,  and  were 
in  no  wise  connected,  and  thereby  create  a  liability  against  him 
that  otherwise  would  not  exist.  The  facts  recited  in  the  instruction 
may  conduce  to  show  that  Scott  was  in  fact  the  real  debtor  from  the 
beginning  by  reason  of  an  agreement  of  some  kind  with  appellees ; 
but  they  are  not  conclusive  of  the  question ;  either  as  to  the  agree- 
ment or  its  legal  effect. 

If  Scott  contracted  with  Marshall  and  Anderson  \o  pay  appellees 
the  balance  due  them,  and  failed  to  do  so,  they  (Marshall  and  An- 
derson) may  sue  him  for  his  breach  of  contract ;  but  appellees  can- 
not take  advantage  of  a  transaction  to  which  they  were  not  parties, 
and  in  which,  so  far  as  the  facts  set  up  in  said  instructions  conduce 
to  show,  they  had  no  interest. 

The  court  properly  excluded  from  the  jury  the  written  contract 
between  Scott  and  Marshall  and  Anderson.  It  does  not  appear  that 
this  contract  was  ever  shown  to  appellees,  and  hence  they  could 
not  have  contracted  with  reference  to  its  contents.  The  oral  proof 
as  to  the  statements  made  to  them  relative  to  the  agreement  be- 
tween Scott  and  Marshall  at  the  time  the  sale  of  the  material  was 
being  negotiated,  was  admissible,  to  enable  the  jury  to  determine 
as  to  the  exact  terms  of  said  sale,  but  the  written  contract,  which 


28  Kentucky  Opinions. 

they  never  saw,  could  throw  no  light  upon  this  subject.  Appellant 
had  no  right  to  demand  an  inspection  of  appellees'  books;  such  a 
proceeding  involved  an  unreasonable  intermeddling  with  the  private 
books  and  papers  of  another. 

There  is  no  objection  to  the  action  of  the  court,  in  modifying  and 
refusing  instructions  asked  by  appellant.  For  error  in  giving  in- 
structions for  appellees  as  hereinbefore  pointed  out,  the  judgment 
is  reversed  and  the  cause  remanded  for  a  new  trial,  upon  principles 
consistent  with  this  opinion. 

Lee  &  Romad,  for  appellant. 
Russell  &  Helm,  for  appellees. 


John  B.  Davis  v.  John  Gault,  Sr.,  Adm'r. 

Landlord  and  Tenant— Statute  of  Prattds— Counterclaim. 

Where  a  tenant,  by  written,  lease  for  five  years  acreea  to  pay  each 
of  three  Joint  landlords  a  stipulated  rental,  and  where  to  Induce  one 
of  such  lessors  to  sign  the  lease  the  tenant  agrees  to  pay  him  an  extra 
amount  and  writes  a  letter  to  such  landlord  agreeing  to  such  extra 
payment,  and  afterward  makes  such  extra  payments,  he  cannot  by 
counterclaim  recover  back  such  extra  rent  in  a  suit  instituted  on  such 
written  lease. 

Statute  of  Frauds. 

The  letter  signed  by  the  tenant  is  sufficient  to  take  his  promise  to 
pay  the  additional  rent  for  five  years  out  of  the  statute  of  frauds. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

June  30,  1874. 

Opinion  by  Judge  Cofer  : 

Two  distress  warrants  were  sued  out  by  John  Gault  against  John 
B.  Davis  for  two  instalments  of  rent  claimed  by  Gault  to  be  due 
him  from  I>avis  for  property  in  Louisville,  called  the  Washington 
Foundry,  and  levied  on  two  steam  engines  as  the  property  of  the 
defendant.  The  demands  for  the  rent  were  controverted  by  answer, 
in  which  it  is  claimed  that  Davis,  the  appellant,  had  paid  of  the 
rent  up  to  October  i,  1872,  to  Gault,  $1,247.21  more  than  by  the 
terms  of  the  lease  were  then  due  him ;  which  he  pleaded  as  a  counter- 
claim, and  also  claimed  a  large  amount  by  way  of  damages  for  the 
taking  his  property  by  distress  when  no  rent  was  due,  as  is  alleged, 
and  for  costs.    The  Washington  Foundry  was  the  joint  property 


John  B.  Davis  v.  John  Gault,  Sr.,  Adm'r.  29 

of  Gault,  Inman  and  Mrs.  Anna  E.  Bell ;  they,  by  a  written  contract, 
leased  it  in  the  fall  of  1876  to  Davis,  for  five  years  from  January  i, 
1868,  at  the  annual  rent  of  $8,100,  one-third  of  which  was  to  be 
paid  in  quarterly  instalments  to  each  of  the  owners ;  and  Davis  gave 
personal  security  for  the  payment  of  the  rent.  In  Gault's  reply  to 
the  counterclaim,  he  denies  that  the  distress  was  illegal  or  excessive, 
and  denies  that  the  business  of  Davis  has  been  injured  by  reason  of 
said  distress,  and  concludes  his  reply  as  follows :  he  denies  that  the 
defendant  had  paid  him  $1,247.21  or  any  part  thereof  more  than 
the  defendant  owed  him  by  the  terms  of  the  rent,  etc.;  and  he 
denies  each  and  all  allegations  of  said  counterclaim;  and  having 
fully  answered,  he  asks  that  said  counterclaim  be  dismissed,  for 
costs  and  for  general  relief.  The  law  and  facts  were  submitted  to 
the  judge,  and  judgment  having  been  rendered  in  favor  of  Gault, 
Davis  has  appealed  to  this  court.  From  the  evidence,  it  appears 
that  in  addition  to  $2,700  per  annum  paid  to  Gault  in  quarterly  in- 
stalments for  the  years  1868,  1869,  1870  and  1871,  Davis  paid  to 
him  the  sum  of  three  hundred  dollars  per  annum  for  each  of  those 
years ;  which,  with  the  interest  for  delays  on  some  of  the  payments, 
perhaps  made  up  the  sum  of  $1,247,21  for  which  credit  is  claimed. 
On  the  trial  Gault  was  sworn  as  a  witness  on  his  own  behalf, 
and  stated  Mrs.  Bell  and  Inman  having  signed  the  written  lease, 
Davis  brought  it  to  him  to  sig^ ;  he  refused  to  sign  it,  and  told  Davis 
that  he  would  not  take  the  amount  stipulated  in  the  lease  to  be  paid 
him  for  his  part  of  the  rent ;  that  he  would  not  take  less  than  $3,000 
per  annum  for  his  part  of  the  rent;  that  Davis  replied  that  the  lease 
was  already  signed  by  the  other  owners  of  the  property,  and  he  did 
not  wish  to  have  it  changed,  but  if  he  would  sign  it  he  would  pay 
him  the  additional  sum  of  $300  per  anniun  for  his  part  of  the  rent 
during  the  term,  and  he  then  signed  it,  Davis  having  undertaken 
and  promised  to  pay  him  $3,000  per  annum  for  his  part  of  the  rent ; 
that  this  agreement  was  not  known  to  Davis  and  himself,  to  his 
knowledge,  but  that  he  had  told  Mrs.  Bell  and  William  Inman 
before  they  signed  the  lease  that  he  would  not  take  $2,700  per  an- 
num rent  for  his  part  of  the  property ;  this  agreement  was  verbal ; 
that  afterwards  Davis,  in  a  letter  to  him,  acknowledged  the  promise 
and  agreed  to  pay  him,  which  letter,  dated  in  April,  1868,  is  copied 
in  the  record.  Davis,  by  his  attorney,  objected  to  the  evidence  of 
Gault,  and  to  the  introduction  of  the  letter  written  by  him  to  Gault 
in  which  he  acknowledged  his  agreement  to  pay  the  additional  $300 


36  Kentucky  Opinions. 

per  annum  rent,  as  incompetent ;  but  the  court  below  overruled  his 
objections  and  admitted  the  evidence,  to  which  Davis  excepted. 

If  the  written  lease  between  the  parties  had  set  forth  the  whole 
of  their  contract,  parol  contemporaneous  evidence  would  not  be  ad- 
missible, to  contradict  or  to  vary  the  terms  of  the  writing.  Green- 
leaf  on  Evidence,  §  275.  But  in  this  case  the  agreement  to  pay  the 
$300  additional  rent  is  not  in  parol  only,  for  Davis  in  the  letter  re- 
ferred to  says : 

"Our  private  understanding  I  intend  vigorously  to  observe;  that 
is,  that  you  receive  from  me  $300  per  year  in  addition  to  the  other," 
etc.  In  a  previous  part  of  the  same  letter  he  had  stated  that  the 
rent,  as  evidenced  by  the  written  lease,  was  $8,iOQ  per  annum, 
which  would  be  $675  to  Gault  every  three  months,  so  that  the  agree- 
ment to  pay  the  additional  $300  per  annum  is  in  writing,  signed  by 
Davis;  and  besides,  the  contract  was  in  part  executed ;  the  $1,247.21 
claimed  were  paid  in  execution  of  that  contract ;  and  in  a  controversy 
between  Gault  and  Davis  we  do  not  perceive  the  legal  principle 
upon  which  the  latter  could  recover  it  back  from  Gault. 

As  to  the  remaining  $300,  for  which  the  distress  is  in  part  made, 
there  is  a  direct  promise  in  writing  to  pay  the  same,  which  takes  it 
out  of  the  operation  of  the  statute  against  frauds  and  makes  it  ob- 
ligatory on  appellant  to  pay  the  same. 

Wherefore  the  judgment  is  affirmed. 

Mundy,  for  appellant, 
Reid  &  Carey,  for  appellee. 


Kentucky  Improvement  Company  v.  Robert  D.  Barr. 

Landlord  and  Tenant— Recovery  of  Damages. 

Where  there  are  two  papers  executed  by  the  same  parties,  at  the 
same  time  upon  the  same  subject,  they  must  be  construed  as  one  con- 
tract 

Damages  for  Breach. 

Where  a  landlord  sgrees  to  make  repairs  as  soon  as  practical  and 
fails  to  do  so,  he  is  liable  to  the  tenant  for  the  damages  he  sustains  on 
account  of  such  failure. 

APPEAL  FROM  GREENUP  CIRCUIT  COURT. 

June  30,  1874. 

Opinion  by  Judge  Pryor  : 

The  appellant  leased  to  the  appellee  a  valuable  merchant  mill  and 


Kentucky  Improvement  Company  v.  Robert  D.  Barr.      31 

the  fann  upon  which  it  was  located,  for  a  number  of  years,  at  nine 
hundred  dollars  a  year,  payable  semi-annually,  the  contract  of  leas- 
ing containing  the  following  provision:  "That  the  rent  shall  be 
reduced  to  three  hundred  dollars  per  year,  for  the  time  that  the  dam 
may  be  out  of  repair  by  being  washed  away  or  badly  damaged.  On 
the  same  day  this  writing  was  executed,  an  additional  covenant  or 
covenants  were  entered  into,  by  way  of  explaining  the  meaning  of 
the  original  lease,  as  well  as  imposing  additional  obligations  on  the 
parties.  This  writing  contains  this  clause:  "It  is  agreed  and  un- 
derstood by  the  party  of  the  first  part,  that  if  the  dam  is  badly  dam- 
aged or  washed  away,  it  is  to  be  repaired  by  the  party  of  the  first 
part  as  soon  as  practicable,  and  at  their  cost  and  expense."  The 
two  writings  constitute  the  entire  contract  between  the  parties,  and 
must  be  construed  as  such.  The  appellee  instituted  his  action  in 
the  court  below,  alleging  that  the  dam  was  badly  damaged  and  that 
some  of  it  had  been  washed  away  in  the  month  of  June,  1868,  and 
was  not  repaired  until  October,  1869;  that  the  appellant  failed  to 
comply  with  its  contract  by  repairing  the  dam  as  soon  as  practica- 
ble and  that  on  account  of  this  refusal  and  failure  on  its  part  to  per- 
form the  stipulations  and  comply  with  the  terms  of  the  lease,  he  was 
deprived  of  the  water  power  necessary  to  run  his  mill,  and  thereby 
greatly  damaged.  There  were  many  witnesses  examined  upon  the 
issue  made,  the  answer  traversing  appellee's  claim,  and  the  testi- 
mony to  some  extent  conflicting.  The  weight  of  the  testimony, 
however,  is  with  the  appellee,  and  authorized  the  judgment,  if  an 
action  can  be  maintained  for  this  particular  breach  of  the  covenant, 
by  "the  failure  of  appellant  to  repair  the  dam  in  a  reasonable  time.'' 
It  is  insisted  by  counsel  for  appellant,  and  is  the  main  ground  of 
his  defense  in  the  case,  that  the  agreement  between  the  parties  fixed 
the  amount  of  damages  to  which  the  appellee  was  entitled  in  the 
event  the  appellant  failed  to  repair  the  dam.  The  writing  provides 
that  the  rent  shall  be  reduced  from  nine  hundred  dollars  to  three 
hundred  dollars  for  the  time  the  dam  may  be  out  of  repair  by  being 
washed  away  or  badly  damaged.  If  there  was  no  other  provision 
in  the  contract  with  reference  to  this  obligation  to  repair,  conceding 
that  the  repairs  were  to  be  made  by  the  company,  the  law  would 
imply  that  it  should  repair  the  dam  in  a  reasonable  time ;  and  dur- 
ing this  period,  the  mill  having  necessarily  to  cease  operation,  or  at 
least  liable  to  do  so  by  reason  of  the  defect  in  the  dam,  the  parties 
themselves  provided  that  the  rent,  during  this  period,  whilst  the 
dam  was  being  repaired,  should  be  only  three  hundred  dollars.    If, 


32  .  Kentucky  Opinions. 

in  the  present  action,  there  had  been  an  absence  of  proof  conducing 
to  show  that  the  dam  was  not  repaired  in  a  reasonable  time,  the  only 
remedy  the  appellee  had  to  indemnify  his  loss  was  by  this  reduction 
of  the  rent.  This  property  was  rented  principally  for  the  profits 
arising  from  the  running  of  this  mill ;  and  it  was  never  contemplated 
by  the  parties,  and  is  certainly  no  part  of  the  contract,  without  ref- 
erence to  its  explanatory  provisions,  that  the  company  could  take  its 
own  time  in  repairing  the  dam,  although  the  effect  might  be  to 
stop  the  mill  entirely,  and  still  require  the  appellee  to  pay  three 
hundred  dollars  rent. 

Such  is  not  its  spirit  or  meaning  and  no  such  legal  construction 
can  be  given  it.  The  parties,  however,  with  a  view,  doubtless,  of 
avoiding  trouble  in  regard  to  tHis  clause  of  the  writing,  by  an  addi- 
tional covenant  made  on  the  same  day  and  perhaps  at  the  same 
time,  go  on  to  stipulate  in  effect,  that,  although  it  had  been  agreed 
that  whilst  the  dam  was  being  repaired  the  rent  should  be  reduced 
to  three  hundred  dollars,  still  the  company  must  bind  itself  to  re- 
pair within  a  reasonable  time,  or  as  soon  as  practicable,  and  this 
clause  was  inserted:  "It  is  agreed  and  understood  that  if  the  dam 
is  badly  damaged  it  is  to  be  repaired  by  the  party  of  the  first  part 
(the  company)  as  soon  as  practicable,  at  its  cost  and  expense.''  This 
explanatory  provision  settles,  in  express  words,  the  intent  and  mean- 
ing of  the  parties,  and  g^ves  the  proper  legal  construction  of  the 
instrument,  so  far  as  it  applies  to  this  particular  covenant. 

The  appellant  having  failed  to  repair  the  dam  within  a  reasonable 
time,  although  it  was  practicable  to  do  so,  the  appellee,  being  dam- 
aged thereby,  was  clearly  entitled  to  recover  upon  this  breach  of  the 
covenant. 

It  is  urged  that  the  court  below  erred  in  permitting  testimony  as 
to  the  capacity  of  the  mill  to  grind,  and  the  amount  of  custom  ap- 
pellees had  upon  the  question  of  damages.  We  cannot  well  see  how 
a  jury  could  form  any  estimate  of  the  damages  except  upon  this 
character  of  proof,  and  the  two  instructions  given  upon  the  sub- 
ject were  eminently  proper. 

The  judgment  is  affirmed, 

Dulin,  for  appellant, 
Phister,  for  appellee. 


M.  Frazer  V,  J.  C.  Merrell.  33 

M.  Frazer  v.  J.  C.  Merrell. 

Pleading— E«secution — Error  in  Name  and  Description. 

When  the  plaintiff  avers  that  he  is  the  owner  of  certain  described 
real  estate  and  entitled  to  the  possession  thereof,  an  answer  that  it  is 
untrue  that  plaintiff  is  the  owner  and  entitled  to  possession  is  not 
equivalent  to  a  general  denial,  and  does  not  put  plaintiff  to  the  proof. 

Execution. 

The  mistake  of  the  clerk  of  court  in  issuing  an  execution  returnable 
at  the  wrong  time  did  not  affect  its  validity. 

Error  in  Name. 

Where  land  is  levied  upon  as  the  property  of  Ball  and  sold  as  the 
property  of  Baugh,  the  irregularity,  while  furnishing  ground  to  quash 
the  levy,  does  not  render  the  levy  and  sale  void  and  could  not  be  taken 
advantage  of  in  a  collateral  proceeding. 

Error  in  Description. 

An  execution  and  sale  not  describing  the  land  so  it  could  be  identi- 
fied is  defective  and  void. 

APPEAL  FROM  LAWRENCE  CIRCUIT  COURT. 

September  3,  1876. 

Opinion  by  Judge  Cofer  : 

We  do  not  regard  any  of  the  objections  urged  by  the  counsel  for 
appellant  as  to  the  validity  of  the  levy  and  sale  under  appellee's 
execution,  as  maintainable. 

The  first  paragraph  of  the  answer  was  not  sufficient  to  put  the  ap- 
pellee upon  the  proof  of  his  title.  The  statement  in  that  paragraph 
is  that  it  is  untrue  that  the  plaintiff  is  the  owner  and  entitled  to  the 
possession.  If  the  plaintiff  was  the  owner  but  was  not  entitled  to 
possession,  or  if  he  was  entitled  to  possession  but  was  not  the  owner, 
the  answer  would  still  be  true,  that  he  was  not  the  owner  and  entitled 
to  possession.  If  it  was  designed  to  put  the  appellee  to  proof  of  his 
title,  the  answer  should  have  contained  a  denial  that  he  was  the 
owner  or  entitled  to  the  possession. 

The  first  objection  to  the  validity  of  the  title  under  which  the  ap- 
pellant alleges  that  the  appellee  claims  the  land,  is  that  the  execu- 
tion was  issued  August  18,  1862,  and  made  returnable  March  i,  1863. 
The  act  of  March  15,  1862,  provided  that  executions  issued  on  re- 
plevin bonds  executed  after  the  passage  of  that  act,  should  be  made 
returnable  to  the  first  Monday  in  March,  1863.  The  replevin  bond 
upon  which  the  appellee's  execution  issued  is  not  in  the  record ;  but 

3 


34  Kentucky  Opinions. 

the  appellant  allies  that  it  was  issued  on  a  replevin  bond,  and  it 
commands  the  officer  to  collect  the  sum  of  $70.78,  with  interest  from 
inlzy  15,  1862.  Replevin  bonds  bear  interest  from  their  date,  and  we 
must  presume  that  it  bore  the  date  from  which  interest  is  directed  to 
be  coUected.  The  mistake  of  the  derk  in  directing  the  executicm  to 
be  returnable  on  the  first  day  instead  of  the  first  Monday  in  March, 
did  not  aflFect  its  validity. 

The  land  was  levied  on  as  the  property  of  Ball,  and  was  sold  as 
the  property  of  Baugh.  This  irr^ularity  might  possiUy  have  fur- 
nished ground  upon  which  to  quash  the  levy  and  sale  in  a  direct 
proceeding  for  that  purpose,  but  did  not  render  either  the  levy  or 
sale  void,  and  could  not,  therefore,  be  taken  advantage  of  in  a  col- 
lateral proceeding. 

We  concur  with  the  circuit  court  in  the  opinion  that  judgment  in 
the  two  cases  of  Kenners  v.  Baugh  were  void.  There  is  no  such 
description  of  the  land  adjudged  to  be  sold  as  would  enable  the  officer 
or  the  purchaser  to  identify  it.  It  is  described  in  one  petition  as 
"lying  and  being  in  Lawrence  County  on  Rooe  Creek,  and  known  as 
the  Bronson  Tomlin  patent,"  in  the  judgment  as  the  land  described 
in  the  petition;  and  in  the  commissioner's  report  as  the  land  de- 
scribed in  the  judgment.  In  the  other  case  the  land  is  described 
as  lying  in  Lawrence  County,  being  the  land  on  which  Baugh  then 
resided.  It  no  where  appears  what  number  of  acres  the  tract  con- 
tained, or  was  supposed  to  contain ;  and  no  reference  is  made  to  any 
record  or  muniment  of  title  from  which  a  description  could  be  ob- 
tained. Aiq)ellee  may,  from  familiarity  with  the  neighborhood,  have 
known  that  the  land  sought  to  be  sold  in  one  or  the  other  or  both 
of  these  cases,  was  the  land  on  which  his  /!.  fa.  was  levied ;  but  he 
could  not  possibly  have  gained  any  such  knowledge  from  the  record 
of  either  case,  so  far  as  the  appellant  is  concerned,  as  it  is  but  lit- 
tle if  any  more  specific  than  those  in  the  cases  of  Kenners  v.  Baugh, 

We  can  learn  from  the  record  that  some  of  the  debts  due  to  Ken- 
ners were  a  lien  on  a  part  of  Baugh's  land,  but  whether  upon  that 
part  claimed  by  the  appellee  we  are  unable  to  ascertain.  So  far  as 
these  debts  were  a  lien  on  the  land  now  in  contest,  the  appellant  has 
a  right  to  be  substituted  for  Kenners ;  and  if  such  claim  had  been 
set  up  it  might  have  been  enforced  in  this  suit ;  but  that  not  having 
been  done,  we  cannot  reverse  the  judgment  on  that  ground,  but  must 
leave  the  appellant  to  assert  it,  if  he  chooses,  in  a  new  action. 

The  facts  alleged  in  the  cross  petition  against  Kenners  do  not  con- 
stitute a  cause  of  action.    They  did  not  become  warrantors  of  the 


City  of  Paducah  v.  Nathan  Kahn.  35 

title  to  the  land  and  if  they  had,  the  cross  petition  would  still  be 
defective. 

Judgment  affirmed. 

Appifson  &  Reid,  for  appellant 


City  of  Paducah  v.  Nathan  Kahn. 

Taxet»  Lien  of — Pleading. 

The  levy  by  city  tax  collector  creates  a  lien  on  all  the  property  levied 
upon  for  the  whole  amount  of  taxes  dne  from  the  delinquent. 


While  purchasers  of  real  estate  from  persons  owing  taxes  pursuant 
to  the  charter,  §  12,  art  6,  are  liable  only  for  the  taxes  upon  the  prop- 
erty purchased,  those  who  purchase  after  levy  made  are  liable  for  all 
the  taxes  due  from  the  delinquent  owner  at  the  time  of  levy. 

Pleading. 

It  is  not  necessary  to  plead  an  amendment  to  the  charter,  for  the 
court  is  bound  to  take  notice  of  it  without  any  pleading. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

September  8,  1874. 

Opinion  by  Judge  Cofer  : 

The  levy  made  by  the  city  tax  collector  on  the  lots,  created  a  lien 
for  the  whole  amount  of  taxes  due  from  Mrs.  Brown.  The  first 
proviso  in  sec.  I2,  art.  5,  of  the  charter,  that  purchasers  of  property 
from  persons  owing  taxes  shall  be  liable  only  for  the  taxes  upon  the 
property  purchased,  does  not  apply  to  this  case,  but  only  to  the  lien 
which  existed  by  reason  of  the  assessment  of  the  taxes.  If  no  levy 
had  been  made,  the  appellee  would  not  have  been  liable  for  more 
than  the  taxes  upon  the  lots ;  but  under  the  levy  a  lien  existed  for 
the  whole  amount  due  from  the  then  owner.  The  sale,  though  void, 
did  not  discharge  the  levy. 

We  perceive  no  error  in  refusing  to  allow  appellant  to  file  an 
amended  petition  setting  up  the  amendment  to  the  charter.  The 
court  was  bound  to  take  notice  of  it,,  if  applicable  to  the  case,  and 
there  was  no  necessity  for  pleading  it.  The  presumption  is  that  Mrs. 
Brown  had  no  personal  property  in  the  city,  or  it  would  have  been 
levied  on  as  it  was  the  duty  of  the  collector  to  do ;  and  this  presump- 
tion is  strengthened  by  the  failure  to  prove  the  fact  upon  an  issue 
directly  and  distinctly  made  on  that  point.    But  the  court  erred  in 


36  Kentucky  Opinions. 

refusing  to  render  judgment  against  the  property  for  the  whole 
amount  of  taxes  due;  and  for  that  error  alone  the  judgment  is  re- 
versed, and  the  cause  remanded  for  judgment  as  herein  indicated. 

Yeiser,  for  appellant. 

Marshall  &  Bloomfield,  for  appellee. 


Samuel  Finley  v.  Paul  B.  Russell  &  Wife. 

Husband  and  Wife— Rent  of  Wife's  Real  Estate. 

Where  the  husband  rents  the  wife's  real  estate  for  not  more  than 
three  years  at  a  time  and  receives  the  rent  In  goods,  the  receipt  of 
such  goods  pays  the  rent  whether  the  wife  consents  thereto  or  not 

Wife's  Money. 

If  the  wife's  money  Is  borrowed  of  her  or  of  her  husband  acting  as 
her  agent,  the  borrower  cannot  afterward  be  heard  to  say  that  the 
money  belonged  to  the  husband,  nor  can  he  be  allowed  to  credit  the 
same  on  the  husband's  Indebtedness  to  him. 

APPEALi  FROM  MARION  CIRCUIT  COURT. 

September  9,  1874. 

Opinion  by  Judge  Pryor  : 

The  instructions  in  this  case  are  erroneous  so  far  as  they  apply 
to  the  right  of  the  husband  to  appropriate  the  rents  due  from  the 
lands  of  the  wife.  If  the  husband  rented  the  house  and  lot,  and  at 
the  time  agreed  with  the  renter  to  take  goods  from  him  in  satisfac- 
tion of  the  rent,  and  the  goods  were  taken  or  purchased  by  the  hus- 
band under  the  cixitract,  it  was  to  that  extent  a  payment  of  the  rent, 
whether  the  rent  was  credited  on  the  account  or  not.  Sec.  i,  Act 
2,  Husband  and  Wife,  provides  that  the  husband  may  rent  the  real 
estate  of  the  wife  for  not  more  than  three  years  at  a  time,  and  re- 
ceive the  rents,  etc.  If,  then,  the  contract  of  renting  was  made, 
he  paid  in  goods,  and  the  goods  were  delivered,  it  was  a  payment  on 
the  rent  whether  the  wife  consented  or  not. 

The  rent  of  the  wife's  land  will  not  be  subjected  to  the  payment 
of  the  husband's  debts,  but  when  the  husband  has  already  rented  the 
land  (if  not  for  a  longer  time  than  three  years)  and  received  the 
rent,  whether  in  money  or  property,  the  wife  cannot  afterwards  as- 
sert a  claim  for  it,  against  the  tenant.  As  to  the  money  of  the 
wife,  if  borrowed  by  the  appellant,  of  her  or  her  husband,  as  her 


Ben  Botts  v.  Commonwealth.  37 

agent,  with  a  promise  to  pay  the  wife,  and  a  recognition  of  it  by 
the  borrower,  as  here,  he  will  not  be  allowed  afterwards  to  say  that 
it  belongs  to  the  husband,  or  to  credit  it  on  the  latter's  indebted- 
ness. We  see  no  error  in  the  instruction  in  this  branch  of  the 
case  nor  any  error  in  regard  to  the  question  made  as  to  the  improve- 
ments on  the  wife's  property. 

The  judgment,  however,  for  the  reason  indicated,  is  reversed  and 
cause  remanded  with  directions  to  award  the  appellant  a  new  trial 
and  for  the  further  proceedings  consistent  with  this  opinion. 

W.  B.  Hprrison,  for  appellant. 
I.  R.  Thomas,  for  appellees. 


Ben  Botts  v.  Commonwealth. 

Criminal  Law — ^Proof  of  Conspiracy — Instructions— Self-Defense. 

It  was  not  error  to  refuse  to  admit  proof  that  immediately  after  de- 
fendant stabbed  the  deceased  and  had  himself  been  shot,  that  other 
parties  proposed  to  go  into  the  room  where  defendant  was,  "and  if  he 
was  not  dead  to  finish  him." 

A  conspiracy  by  others  to  kill  defendant  after  he  had  fatally  stabbed 
the  deceased  would  not  tend  to  justify  the  killing.  It  could  not  be 
material  so  far  as  appellant  was  concerned  whether  such  conspiracy 
then  existed  or  not. 

Instructions. 

It  was  error  for  the  court  to  instruct  the  Jury  that  although  they 
may  believe  from  the  evidence  that  the  deceased  and  the  defendant,  a 
short  time  before  deceased  was  killed,  had  a  quarrel,  and  that  after- 
wards deceased  armed  himself  with  an  iron  weight  with  the  intention 
to  assault  the  defendant,  yet  if  they  believe  from  the  evidence,  beyond 
a  reasonable  doubt  that  the  defendant,  at  the  time  he  stabbed  the  de- 
ceased, brought  on  the  conflict  in  which  the  deceased  was  killed,  and 
first  assaulted  said  deceased  in  said  confiict,  and  stabbed  him,  he  is 
guilty  of  murder. 

of  Self-Defense. 

If  the  defendant  and  the  deceased  met  without  design  or  contrivance 
on  the  part  of  defendant,  he  would  not  necessarily  be  guilty  because 
he  commenced  the  conflict.  If  they  met  otherwise  than  by  design  of 
the  defendant,  and  he  found  himself  in  apparent  danger  without  any 
fault  on  his  part  at  the  time,  his  right  of  self-defense  was  unalEected 
by  any  previous  altercation. 


38  Kentucky  Opinions. 

APPEAL  FROM  POWELL  CIRCUIT  COURT. 
September  10, 1874. 

Opinion  by  Judge  Cofer: 

The  appellant  was  indicted  and  tried  in  the  Powell  circuit  court 
for  the  murder  of  Geo.  Williams,  and  was  found  guilty  of  man- 
slaughter, and  sentenced  to  two  and  a  half  years'  imprisonment 
in  the  penitentiary.  He  now  complains  of  that  judgment,  and 
seeks  a  reversal  on  numerous  grounds,  of  only  two  of  which  this 
court  has  jurisdiction.    Criminal  Code,  §  334. 

He  offered  to  prove  by  a  witness  that  immediately  after  he  had 
stabbed  the  deceased,  and  had  himself  been  shot  by  Hardwick  and 
Tracy,  that  one  Curry  and  Tracy  proposed  to  Hardwick  to  go  into 
the  room  where  the  prisoner  lay  wounded  by  the  shots,  "and  if  he 
was  not  dead  to  finish  him."  This  appears  to  have  been  after  the 
fatal  stab  had  been  g^ven,  and  the  deceased  had  gone  out  of  the 
room  wlien  it  occurred.  The  evidence  seems  to  have  been  offered 
under  the  belief  that  it  would  tend  to  establish  a  conspiracy  between 
Curry  and  Tracy  and  the  deceased,  to  kill  appellant,  or  do  him 
some  great  bodily  injury.  It  was  not  material,  so  far  as  appellant 
was  concerned,  whether  such  conspiracy  existed  or  not,  for  its  exist- 
ence would  not,  of  itself,  have  excused  him  for  the  killing  of 
Williams,  nor  could  any  after-declarations  of  Tracy  or  Curry,  or 
both,  have  shown,  or  tended  to  show  whether  he  believed,  and  had 
reasonable  ground  to  believe,  at  the  time  he  stabbed  Williams,  that 
he  was  himself  in  danger  of  losing  his  life,  or  of  suffering  great 
bodily  injury.  He  had  a  right  to  rely  upon  anything  done  by  either 
Curry  or  Tracy  before  the  stabbing  which  tended  to  show  his 
own  danger  at  the  time ;  but  what  they  did  afterwards  can  not  affect 
the  question  whether  he  at  the  time  believed,  and  had  reasonable 
ground  to  believe  he  was  in  peril.  Neither  his  actual  or  apparent 
danger  at  the  time,  can  be  shown  by  subsequent  acts  or  words  of 
others. 

It  is  complained  that  the  court  erred  to  appellant's  prejudice,  in 
giving  instructions,  and  in  refusing  to  give  two  asked  by  him.  We 
see  no  valid  objections  to  any  of  the  instructions  given  except  the 
fourth,  which  is  in  these  words :  "The  court  instructs  the  jury  that 
although  they  may  believe  from  the  evidence  that  the  deceased  and 
the  defendant,  a  short  time  before  deceased  was  killed,  had  had  a 
quarrel,  and  that  afterwards  deceased  armed  himself  with  an  iron 
weight  with  the  intention  to  assault  the  defendant,  yet,  if  they  be- 


Ben  Botts  v.  Commonwealth.  39 

Heve  from  the  evidence,  beyond  a  reasonable  doubt,  that  the  de- 
fendant, at  the  time  he  stabbed  the  deceased,  brought  on  the  con- 
flict in  which  the  deceased  was  killed,  and  first  assaulted  said  de- 
ceased in  said  conflict,  and  stabbed  him,  he  is  guilty  of  murder." 
When  parties  have  had  an  altercation  and  are  afterwards  separated, 
and  one  of  them  voluntarily  renews  the  quarrel  and  brings  on  a 
conflict,  he  cannot,  in  such  conflict  so  brought  on  by  his  own  con- 
duct, avail  himself  of  the  law  of  self-defense  until  he  first  abandons 
the  conflict  in  good  faith.  But,  as  we  understand  this  instruction, 
the  idea  conveyed  by  it  is,  that  no  matter  how  the  parties  met  after 
the  first  quarrel,  whether  by  accident,  or  by  the  design  and  con- 
trivance of  the  deceased,  yet  if,  when  they  met,  appellant  brought 
on  the  conflict,  that  is,  made  the  first  assault,  he  is  guilty.  If  they 
met  and  the  quarrel  was  renewed  by  the  appellant,  and  a  conflict 
was  thus  brought  about  by  him,  he  is  guilty ;  but  if  they  met  without 
design  or  contrivance  on  his  part,  he  would  not  necessarily  be  guilty 
because  he  commenced  the  conflict.  If  they  met  otherwise  than  by 
the  design  of  appellant,  and  he  found  himself  in  apparent  danger 
without  any  fault  on  his  part  at  the  time,  his  right  of  self-defense 
was  wholly  unaffected  by  the  previous  altercation.  Under  the  in- 
struction as  given,  the  jury  may  have  supposed  that  no  matter  what 
his  danger  was  at  the  time,  nor  whether  he  was  in  any  way  in  fault, 
he  had  no  right  to  strike  until  he  was  first  assaulted,  although  he 
may  have  been  so  menaced  as  to  create  reasonable  apprehension  for 
the  safety  of  his  own  life.  The  first  instruction  asked  by  appellant, 
improperly  assumed  that  others  were  acting  in  concert  with  the 
deceased,  a  fact  which  ought  to  have  been  left  to  the  jury,  and  was 
therefore  properly  refused.  The  second  instruction  was  calculated 
to  mislead  and  confuse  the  jury  and  was  properly  refused.  The 
first  instruction,  however,  intimated  a  desire  on  the  part  of  appel- 
lant to  have  the  jury  instructed  in  regard  to  the  supposed  combina- 
tion between  Curry,  Tracy  and  the  deceased;  and  as  it  was  the 
duty  of  the  court  to  instruct  the  jury  on  the  law  of  the  case,  the 
court  ought  either  to  have  so  modified  the  first  instruction  as  to 
make  it  conform  to  the  law,  or  to  have  given  another  instruction. 
We  might  not  refuse  because  of  the  failure  of  the  court  to  instruct 
on  the  collateral  point  unless  a  proper  instruction  was  offered ;  but 
as  the  case  must  be  reversed  for  the  error  already  indicated,  we 
deem  it  proper  to  indicate  what  we  think  a  correct  practice  on  this 
subject  The  jury  should  have  been  told  in  substance  that  if  the 
defendant  believed,  and  had  reasonable  grounds  to  believe  that  he 


John  H.  Miller  v.  Jacob  H.  Miller.  41 

a  judgment  by  default  can  be  entered  and  a  jury  sworn  to  enquire 
of  damages.  The  judgment  of  the  court  below  is  reversed  and  the 
cause  remanded  with  directions  to  transfer  the  case,  on  the  motion 
of  either  party,  to  the  ordinary  docket. 

//.  C.  Lillys,  for  appellants. 
VanWinkle  and  Reide,  for  appellees. 


John  H.  Miller  v.  Jacob  H.  Miller. 

Suit  to  Prevent  the  Use  of  Name. 

Where  two  persons  In  the  same  business  have  the  same  name,  the 
court  cannot  compel  one  of  them  to  change  his  sign  or  name. 

APPEAL.  FROM  McCRACKEN  CIRCUIT  COURT, 

September  11,  1874. 

Opinion  by  Judge  Peters  : 

The  facts  alleged  do  not  indicate  that  appellee,  in  preparing  his 
sign,  attempted  to  simulate  to  that  of  appellant.  They  are  not  identi- 
cal, but  as  dissimilar  as  they  reasonably  could  be,  in  view  of  the  fact 
that  the  initials  of  the  Christian  names,  and  the  surnames  of  the  par- 
ties are  the  same,  and  that  they  are  engaged  in  the  same  occupation. 
A  person  seeking  the  place  of  business  of  appellant  would  be  much 
more  likely  to  be  deceived  by  the  identity  of  their  surnames,  than 
by  the  similarity  of  the  residue  of  their  signs.  Therefore,  to 
afford  appellant  the  relief  he  seeks,  it  would  be  necessary  to  re- 
quire appellee  to  change  his  name  or  his  occupation,  which  is  wholly 
beyond  the  power  of  the  court. 

The  judgment  must  be  affirmed. 

Bigger  &  Moss,  for  appellant. 


Isaac  Patterson,  et  al.,  v.  David  C.  Snyder. 

Mental  Capacity— Character  of  Witness  to  WilL 

In  an  attack  upon  the  mental  capacity  of  a  testatrix  It  is  not  suf- 
ficient to  show  merely  that  she  was  a  person  of  naturally  low  order  of 
intellect 

Moral  Character  of  Witness. 

The  moral  character  of  a  witness  to  a  will  is  not  in  issue  when  the 
witness  is  not  called  in  a  trial  to  contest  the  will. 


Wm.  Pollard's  Heirs  v,  Jas.  Morrison's  Adm'r.  43 

judgment  must  therefore  be  affirtned.    Judge  Cofer  did  not  sit  in 
this  case. 

Williams  &  Baker,  for  appellants. 

R.  Y.  Bush,  Eli  H.  Brown,  for  appellee. 


Wm.  Pollard's  Heirs  v.  Jas.  Morrison's  Adm'r. 

Partiea — ^Pleadings — Recovery  of  Real  Estate— Ejectment. 

No  default  can  be  taken  against  persons  named  only  In  the  body  of 
the  complaint 

Pleadings. 

Pleading  which  seeks  to  recover  land  must  describe  it  with  reason- 
able certainty.  An  averment  that  plaintiff  is  the  owner  of  31,000 
acres  of  land,  except  six  thousand  acres  previously  sold,  but  which  does 
not  describe  the  six  thousand  acres,  is  insufficient. 

APPEAL  FROM  HART  CIRCUIT  COURT. 
September  12,  1874. 

Opinion  by  Judge  Pryor  : 

It  haying  been  heretofore  decided  on  motion  of  the  appellee  that 
the  imknown  heirs  of  Pollard,  Steel  and  Rolston,  were  not  before  the 
court,  the  only  appellants  left  in  the  case  are  Pickett,  O.  E.  Clark, 
W.  S.  Caswell,  William  Tharp,  James  C.  Loyden,  Q.  James,  and  B. 
West.  These  appellants,  except  Tharp,  were  not  parties  to  the  action 
for  the  reason  that  their  names  are  not  found  in  the  caption.  The 
code  of  practice  requires  that  the  petition  must  contain  the  style  of 
the  action,  consisting  of  the  names  of  all  the  parties  thereto,  dis- 
tinguishing them  as  plaintiffs  and  defendants.  This  has  not  been 
done  in  the  present  action  and  a  judgment  by  default  should  not 
have  been  rendered  against  those  whose  names  appear  in  the  body  of 
the  petition  only.  Tharp,  however,  filed  an  answer,  and  this  made 
him  a  party  defendant.  The  action  is  in  the  nature  of  a  bill  quia 
timet,  as  well  as  for  the  recovery  of  the  land  in  controversy.  The 
petiticxi  claims  that  the  appellee  is  the  owner  of  31,000  acres  of  land, 
except  six  thousand  acres  previously  sold,  lying  within  the  patent 
boundary.  There  is  no  allegation  in  the  petition  that  the  portion  of 
the  land  sold  is  not  in  the  possession  of  the  defendants,  or  that  their 
possession  is  outside  of  the  part  sold,  and  within  or  on  that  portion 
of  the  patent  boundary  belonging  to  the  appellee.    No  description  or 


Joseph  Gormley  v,  J.  B.  Alexander,  et  al.  45 

Joseph  Gormley  v.  J.  B.  Alexander,  et  al. 

Purchase  of  Real  Estate — Relation  of  Trust  and  Confidence  Between 
Partners — Commission. 

Where  the  secret  agent  of  the  vendor  agrees  with  associates  to  be- 
come a  co-purchaser,  he  can  derive  no  peculiar  benefit  to  himself  on 
account  of  a  secret  understanding  with  the  seller. 

Trust  and  Confidence. 

The  relation  of  trust  and  confidence  existing  between  co-purchasers^ 
whatever  advantage  one  secures  by  his  agreement  with  the  seller, 
inures  alike  to  all  of  them. 

Commissions. 

A  co-purchaser  of  real  estate,  notwithstanding  the  relation  of  confi- 
dence between  purchasers,  may  recover  a  commission  from  the  seller 
of  such  real  estate  earned  before  he  became  associated  with  the  other 
purchasers. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 
September  12,  1874. 

Opinion  by  Judge  Cofer  : 

The  question  presented  by  this  record  is  whether  Gormley  shall, 
as  against  his  co-purchasers,  compel  the  payment  of  the  full  price 
agreed  to  be  paid.  Alexander  has  no  interest  in  the  question,  for  he 
is  in  no  event  to  get  more  or  less  that  $61,750  for  the  property. 

When  Gormley  agreed  to  become  one  of  the  purchasers,  neither 
of  the  others  knew,  or  had  the  slightest  reason  to  suspect,  that  he 
had  any  interest  adverse  to  them,  except  what  they  may  have  been 
bound  to  infer  from  the  fact  known  to  some  of  them,  and  therefore 
presumably  to  all,  that  he  had  been  Alexander's  agent,  and  might 
therefore  reasonably  be  expected  to  be  entitled  to  ordinary  compen- 
sation for  his  services. 

The  only  information  they  had  of  the  value  of  the  property  was 
what  they  had  gotten  from  Alexander  and  Gormley.  They  say  they 
confided  in  the  latter;  and  the  fact  that  they  bought  the  property 
upon  his  representations  alone,  furnishes  most  convincing  evidence 
that  it  was  true. 

When  he  agreed  to  join  the  others  in  the  purchase,  he  became 
bound,  not  only  to  act  in  good  faith  with  them,  but  was  bound  in 
good  conscience  not  thereafter  to  make  profit  out  of  them  in  a  man- 
ner and  to  an  extent  of  which  they  were  not  only  ignorant,  but  of 
which  they  could  not  have  had  the  slightest  suspicion.     He  in 


46  Kentucky  Opinions. 

substance  bought  the  property  at  $65,000  and  put  it  into  the  joint 
concern  at  $100,000.  If  he  had  made  a  secret  contract  with  Alexan- 
der for  the  property  at  $65,000,  and  c<xicealing  that  fact,  had  con- 
veyed it  to  his  associates  at  $100,000,  retaining  an  interest,  it  is  clear 
that  he  could  not  have  cc»npelled  payment,  any  more  than  a  partner 
who  buys,  in  his  own  name,  commodities  which  he  puts  into  the  firm, 
can  compel  payment  at  an  advance  on  the  actual  account. 

From  the  time  he  agreed  to  become  a  co-purchaser  he  could  derive 
no  peculiar  or  exclusive  benefit  to  himself,  on  account  of  a  secret  un- 
derstanding with  Alexander.  When  he  entered  into  an  agreement  to 
join  in  the  purchase,  the  sale  had  not  been  perfected,  and  his  right 
to  the  $25,000,  as  between  himself  and  Alexander,  dates  from  the 
execution  of  the  contract  of  February  23.  At  that  time  a  relation  of 
trust  and  confidence  existed  between  himself  and  his  associates,  and 
whatever  advantage  he  secured  by  his  arrangement  with  Alexander, 
of  which  they  had  no  knowledge,  inured  alike  to  the  benefit  of  all 
the  associates.  This  conclusion  seems  to  be  sustained  alike  by  prin- 
ciple and  authority. 

Gormley's  right  to  the  five  per  cent,  commission  rests  upon  differ- 
ent grounds.  One  of  his  associates,  at  least,  knew  he  had  been 
Alexander's  agent,  and  as  it  was  his  duty  to  so  inform  the  others,  it 
ought  to  be  asstmied  that  they  all  knew  it,  and  if  they  did  not,  it 
does  not  seem  to  be  more  than  his  services  were  worth,  and  was  not, 
therefore,  profit  made  by  him  at  the  expense  of  his  associates.  The 
services  having  been  rendered  before  he  became  associated  with  ap- 
pellees, his  right  to  the  commission  is  clear,  and  the  rule  which  re- 
fuses compensation  to  a  partner  for  services  rendered  to  his  firm 
does  not  apply. 

The  judgment  of  the  circuit  court  conforms  to  our  conclusions,  and 
is,  therefore,  affirmed,  on  both  the  original  and  cross  appeal. 

/.  T,  Bullitt,  for  appellant. 
R,  H,  Field,  for  appellees. 


Henry  Mays  v.  William  C.  Beatty. 

Real  EsUte— Possession  Under  Preemption  Claim— Bill  of  Exceptions. 
While  it  may  be  true  that  the  occupant  of  real  estate  under  pre- 
emption entry  has  no  such  title  that  he  may  transfer  the  same  by  sale, 
he  can  legally  pass  his  possession  to  another. 


Henry  Mays  v.  William  C.  Beatty.  47 

« 

of  Bzcefydons. 

Where  there  are  numerous  blanks  in  a  bill  of  exceptions,  the  court  of 
appeals  cannot  determine  which  instructions  were  given  or  which  re- 
fused. 

appeal  from  ADAIR  CIRCUIT  COURT. 

September  12,  1874. 

Opinion  by  Judge  Lindsay  : 

It  is  stated  in  the  caveat  that  Beatty  was  in  the  actual  possession 
of  the  two  tracts  of  land,  at  the  time  appellant  caused  the  same  to  be 
surveyed,  and  that  he  was  claiming  a  pre-emption  right  to  each  of 
them,  the  fifty-acre  tract  by  virtue  of  his  own  actual  occupancy,  and 
the  one-hundred-acre  tract  by  virtue  of  his  purchase  from  Hicks. 
It  is  true  Hicks  had  not  procured  a  plat  and  certificate  of  survey ; 
but  it  is  averred  that  he  actually  appropriated  the  land,  and  that  he 
turned  his  possession  over  to  Beatty's  tenant.  It  is  further  averred 
that  appellant  obtained  the  possession  by  buying  out  such  tenant. 

It  may  be  true  that  until  a  plat  and  certificate  of  survey  have  been 
procured,  the  occupant  has  no  such  title  as  he  can  transfer  by  bargain 
and  sale;  but  he  can  certainly  pass  his  possession  to  another,  who 
will  have  the  right  to  convert  the  amount  under  which  the  occupant 
claims,  into  a  patent,  by  making  the  entry,  and  by  procuring  plat  and 
certificate  of  survey.  It  is  further  alleged  that  appellant  had  notice 
of  all  these  facts ;  and  that  he  fraudulently  attempted  to  procure  title 
to  the  land,  by  means  of  his  warrant,  entry  and  survey. 

Upon  the  trial  of  the  action  evidence  was  introduced  by  both  par- 
ties. The  bill  of  exceptions  fails  to  show  that  it  contains  all  the  testi- 
mony. There  are  numerous  blanks,  intended  to  have  been  filled  by 
the  insertion  of  exhibits  and  depositions,  but  which  have  never  been 
filled.  We  have  no  means  of  ascertaining  which  instructions  were 
given  or  refused.  There  are  blanks  in  the  bill  of  exceptions  that 
were  intended  to  be  filled  by  the  insertion  of  certain  instructions 
given,  and  others  asked  for  and  refused,  but  they  were  never  in- 
serted. Following  the  bill  of  exceptions  are  certain  papers,  purport- 
ing on  their  fac^  to  be  exhibits,  depositions  and  instructions,  but  we 
cannot  determine  from  anything  before  us  that  they  constitute  any 
part  of  this  record. 

Under  such  circumstances  this  court  cannot  consider  these  papers. 
We  must,  therefore,  affirm  the  judgment  of  the  circuit  court. 

Gamett  &  Stuart,  for  appellant. 
A.  /.  James,  for  appellee. 


48  Kentucky  Opinions. 

Henry  Creason  v,  Nancy  Harrington,  et  al. 

Limitationfl — ^When  Runs— Contents  of  Last  Will — Evidence. 

Where  a  widow  has  only  a  life  estate  in  real  estate,  without  power 
to  sell,  the  statute  of  limitations  only  begins  to  run  against  the  own- 
ers of  the  fee,  after  the  death  of  the  widow. 

Evidence. 

For  what  is  sufficient  proof  of  the  contents  of  a  will  destroyed  by 
fire  after  being  probated,  see  opinion. 

APPEAL  FROM  MARSHALL  CIRCUIT  COURT. 

September  14, 1874. 

Opinion  by  Judge  Pryor  : 

The  devisor  died  in  or  about  the  year  1845,  sind  the  vendees  of 
the  land  from  his  widow  have  been  in  undisturbed  possession  of  their 
purchase  since  the  years  1847  and  1848.  The  statute  of  limitation 
constitutes  no  defense  to  the  action,  and  the  right  of  the  appellees  to 
recover  depends  alone  upon  the  provisions  of  the  will  of  their  father. 
If  the  widow  was  only  entitled  to  a  life  estate,  without  any  power  to 
sell,  the  statute  did  not  commence  to  run  against  the  children  until 
her  death.  This  took  place  in  the  year  1865,  ^^^  therefore  the  lapse 
of  time  presents  no  bar  to  the  recovery. 

The  will  of  Harrington  was  destroyed  by  the  burning  of  the  clerk's 
office,  when  it  had  been  recorded  after  probate,  and  the  only  mode  of 
arriving  at  its  contents  is  from  the  parol  testimony  offered  by  the 
father.  The  will  was  proven  in  the  year  1846,  and  destroyed  in  the 
year  1848,  a  period  of  twenty  years  and  more  prior  to  the  time  the 
witnesses  are  called  on  to  testify  as  to  its  contents ;  and  their  state- 
ments as  to  its  provisions  must  necessarily  be  to  some  extent  un- 
satisfactory. This  land  was  sold  by  the  widow,  who  was  also  ex- 
ecutrix, before  the  destruction  of  the  will,  and  before  the  convey- 
ances were  made  by  her  passing  the  absolute  fee  simple  estate.  The 
witnesses  for  the  appellees  say  that  the  widow  was  to  hold  the  estate 
during  life  or  widowhood.  If  such  were  the  contents  of  that  instru- 
ment, it  is  unreasonable  to  presume  that  the  deeds  made  to  the  pur- 
chasers could  have  attempted  to  pass  the  absolute  estate,  or  that  these 
vendees  would  have  invested  their  money  in  an  estate  that,  from  the 
provisions  of  the  will,  as  contended  for  by  the  appellees,  must  ter- 
minate at  the  death  of  the  widow,  and  liable  to  end  at  any  time  in 
the  event  of  her  marriage.  It  is  also  remarkable  that,  although  the 
widow  married  in  1851,  these  appellees,  being  then  entitled  to  the 


Henry  Creason  v.  Nancy  Harrington,  et  al.  49 

estate,  if  their  versions  of  the  provisions  of  the  will  be  the  true  ones, 
should  have  slept  upon  their  rights  for  fifteen  or  twenty  years,  with 
the  occupants  on  the  land  sold  by  the  mother  without  right,  and 
never  attempted  to  regain  the  possession.  Some  of  them,  it  is  true, 
were  infants,  others  of  full  age,  and  with  a  full  knowledge,  as  they 
now  insist,  of  their  right  to  the  land.  The  witnesses  by  whom  they 
prove  the  contents  of  the  destroyed  paper  were  near  relatives,  and 
directly  interested  in  having  their  rights  secured;  but  still,  no  suit 
has  been  prosecuted  for  the  recovery  of  this  land  until  after  an  oc- 
cupancy of  it  by  the  vendees  for  near  twenty  years,  and  when  the 
yoimgest  of  the  children  has  arrived  at  the  age  of  thirty  or  forty. 
These  circumstances  conduce  strongly  to  the  conclusion  that  the 
widow  had  the  power  to  sell,  and  must  cause  the  chancellor  to  hesi- 
tate before  depriving  the  appellants  of  property  they  have  occupied 
and  claimed  to  own  for  more  than  twenty  years. 

It  is  shown,  however,  by  several  witnesses  for  the  appellant,  that 
the  will  contained  a  provision  empowering  the  widow,  who  was 
executrix,  to  sell  so  much  of  the  land  as  was  necessary  to  pay  the 
debt.  One  of  the  witnesses  examined  a  copy  of  the  will  in  the  pos- 
session of  the  widow  at  the  time  he  bought  an  interest  in  the  land ; 
another  was  present  when  the  will  was  written,  and  heard  it  read ; 
and  still  a  third  attested  the  will  itself ;  and  although  this  witness  may 
allude  to  circumstances  calculated  to  excite  suspicion  as  to  his  recol- 
lection of  the  provisions  of  the  will,  yet  he  is  sustained  fully  by  others 
who  speak  of  its  contents,  and  by  Copeland,  who  swears  that  Smith 
was  present  when  the  will  was  written.  This  witness,  Copeland, 
was  living  with  Harrington  when  the  latter  died,  and  gives  a  definite 
statement  of  the  personal  property  owned  by  the  devisor  at  his  death. 
He  left  no  personal  estate  subject  to  execution,  and  not  enough  for 
the  comfortable  subsistence  of  his  wife  and  children.  The  prepon- 
derance of  the  evidence  is  that  he  had  no  personal  estate  out  of  which 
his  debts  could  have  been  paid.  The  land  owned  by  him  was  at  the 
time  of  his  death  worth  not  more  than  three  hundred  and  fifty  dol- 
lars, and  perhaps  less.  He  owed  near  two  hundred  and  fifty  dollars, 
not  including  his  funeral  expenses.  His  widow  mortgaged  some  of 
the  land  to  pay  a  part  of  the  debts,  and  no  doubt  sold  the  whole  of  it 
to  pay  the  indebtedness  of  the  estate.  She  may  have  sold  more  land 
than  was  necessary  to  pay  all  the  debts ;  still,  the  power  to  sell  was 
given  her  by  the  will,  and  whether  her  conveyance  is  as  executrix  or 
as  widow,  the  legal  presumption,  after  such  a  lapse  of  time,  must  be 
that  she  was  exercising  her  right  to  sell  by  reason  of  the  will  of  her 


so  Kentucky  Opinions. 

husband.  An  authority  as  executor  to  sell  land  for  the  payment  of 
debts,  if  necessary,  makes  the  executor  the  judge  of  the  necessity; 
and  though  there  is  no  deficiency,  a  sale  will  be  valid.  Coleman  v. 
McKinney,  312  J.  J.  Marsh.  246.  There  is  no  doubt,  then,  that  the 
appellant,  in  1858,  applied  to  some  of  the  appellees  to  purchase  their 
interests.  The  will  had  then  been  destroyed.  The  land  had  increased 
in  value.  The  contents  of  the  will  were  the  subject-matter  of  dis- 
pute ;  and  if  a  life  estate  existed  in  the  widow,  only,  the  appellant's 
title  was  gone.  He  may  have  well  offered  to  purchase  under  the 
circumstances,  to  prevent  litigation,  if  nothing  else,  but  this  act  on 
his  part  cannot  be  regarded  as  a  waiver  of  his  right,  sustained  as  it 
is  by  the  facts  and  circumstances  of  the  case. 

The  judgment  is  affirmed  on  the  cross  appeal  and  reversed  on  the 
original  appeal,  with  instructions  to  the  court  below  to  dismiss  ap- 
pellees' petition. 

Gilbert,  for  appellant. 
Wake,  for  appellees. 


Rosa  Gardner  v.  O.  Williams. 

Pleading  Conclusion. 

Where  there  is  no  averment  that  an  Intestate  died  childless  nor  that 
his  father  is  not  living,  the  statement  in  the  petition  that  appellant 
is  "the  only  heir  at  law"  is  only  the  statement  of  a  conclusion  of  law. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

September  14,  1874. 

Opinion  by  Judge  Lindsay  : 

We  cannot  say  that  appellant  shows  herself  entitled  to  any  portion 
of  the  proceeds  of  the  sale  of  the  realty  in  question.  The  intestate 
was  twice  married.  There  is  no  averment  that  he  died  childless,  nor 
that  his  father  is  not  living.  The  statement  in  the  petition  that  ap- 
pellant is  "the  only  heir  at  law"  is  but  the  statement  of  a  conclusion 
of  law. 

The  proof  shows  that  the  intestate  had  numerous  brothers  and  sis- 
ters ;  and  it  is  not  shown  that  any  of  them  are  dead.  There  is  no 
reason  why  the  court  should  presume  that  all  are  dead  except  ap- 
pellant, and  further  that  they  all  died  childless. 


James  Harris  v.  Commonwealth.  51 

Appellant  gets  imder  the  judgment  appealed  from  as  much  as  she 
has  shown  herself  entitled  to,  if  indeed  she  is  entitled  to  anything. 
Judgment  affirmed, 

Armstrong  &  Fleming,  for  appellant. 
Lee  &  Ladam,  for  appellee. 


James  Harris  v.  Commonwealth. 

Homicide — Self-Defense — Instructiona — ^Manslaughter. 

An  instruction  is  proper  which  charged  the  Jury  "that  if  the  ao- 
cused  believed  and  had  reasonable  grounds  to  believe  at  the  time  he 
shot  the  deceased,  that  he  was  in  immediate  danger  of  losing  his  life, 
or  great  bodily  harm  from  the  deceased,  he  had  the  right  to  do  what 
under  all  the  circumstances  seemed  necessary  to  him  to  protect  him- 
self from  the  impending  danger,  even  to  the  taking  of  the  life  of  his 
adversary." 

Inttmctiona — ^Manslaughter. 

It  was  proper  for  the  court  to  instruct  the  Jury  that  if  they  believed 
the  accused  guilty  but  had  doubt  of  the  degree  of  guilt,  they  must  find 
him  guilty  of  manslaughter,  for  if  he  was  guilty  it  was  murder  or  man- 
slaughter. 

APPEAL.  FROM  BOURBON  CIRCUIT  COURT. 

September  16,  1874. 

Opinion  by  Judge  Pryor  : 

After  a  careful  consideration  of  the  instructions  given  in  this  case, 
we  have  been  unable  to  find  any  error  to  the  prejudice  of  the  ac- 
cused of  which  he  has  the  right  to  complain.  Instruction  No.  i, 
given  at  the  instance  of  the  defense,  tells  the  jury  "that  if  the  ac- 
cused believed  and  had  reasonable  grounds  to  believe  at  the  time  he 
shot  the  deceased,  that  he  was  in  immediate  danger  of  losing  his  life, 
or  great  bodily  harm  from  the  deceased,  he  had  the  right  to  do  what 
under  all  the  circumstances  seemed  necessary  to  him  to  protect  him- 
self from  the  impending  danger,  even  to  the  taking  of  the  life  of  his 
adversary."  This  part  of  the  instruction  was  certainly  as  favorable 
to  the  accused  as  the  facts  upon  which  it  was  based  authorized ;  but 
the  court,  by  this  instruction,  goes  further  and  says  "that  this  belief 
of  danger  might  be  entertained  not  only  from  what  took  place  at  the 
time  of  the  killing,"  but  from  all  the  accompanying  circumstances, 


52  Kentucky  Opinions. 

coupled  with  the  manner,  hearing,  language,  conduct  and  condition 
of  the  deceased  before  and  at  the  time  of  the  killing,  thus  giving  to 
the  accused  the  full  benefit  of  every  action  on  the  part  of  the  de- 
ceased toward  him  or  any  one  else  at  the  time  of  the  killing,  or  prior 
thereto,  calculated  to  create  the  belief  that  the  accused  was  in  danger. 
Such  a  comprehensive  instruction  might  well  be  g^ven  in  a  case 
where  one  was  being  pursued  or  threatened  by  a  desperate  or  dan- 
gerous man ;  but  in  the  present  case,  without  reciting  the  testimony, 
we  must  say  that  the  latter  branch  of  the  instruction  should  have 
been  omitted. 

Instruction  No.  2  tells  the  jury  "that  the  law  allows  in  the  defense 
of  one  person,  such  means  as  are  necessary,  or  reasonably  seem  to 
him  to  be  necessary,  and  in  the  selection  of  such  means  he  must  of 
necessity  exercise  his  own  judgment ;  and  if  the  jury  believe  from  the 
testimony,  that,  at  the  time  the  prisoner  shot  the  deceased,  he  had 
reasonable  grounds  to  believe,  and  did  believe,  that  the  only  means  to 
prevent  the  infliction  of  great  bodily  harm  then  impending,  was  to 
shoot  the  deceased,  they  ought  to  acquit."  We  perceive  no  valid  ob- 
jection to  this  instruction.  The  jury  are  told  that  the  prisoner  must 
have  believed  that  his  only  means  of  escape  was  to  kill  his  adversary, 
before  he  could  be  excused ;  and  he  must  not  only  entertain  this  be- 
lief, but  he  must  have  reasonable  grounds  for  so  believing.  The  mod- 
ification of  the  instruction  as  designed  by  counsel  for  the  defense, 
makes  the  guilt  or  innocence  of  the  accused  depend  upon  the  fact 
"that  the  means  used  reasonably  seemed  to  the  accused  to  be  neces- 
sary to  save  himself,  whether  warranted  by  the  evidence  or  not." 
Where  the  accused  acts  from  what  to  him  seemed  necessary  action, 
he  acts  at  his  peril ;  but  where  he  does  believe  that  he  is  in  danger, 
and  has  reasonable  grounds  fpr  so  believing,  he  is  excusable.  The 
jury  has  already  been  told  by  instruction  No.  i,  as  well  as  the  instruc- 
tion asked  to  be  modified,  what  constituted  self  defense ;  but  counsel, 
by  transposing  the  words  used  in  instruction  No.  2,  given  by  the 
court,  and  placing  them  at  the  close  of  the  instruction  asked  for  by 
them,  have  asked  the  court  to  say  to  the  jury  that  if  the  means  used 
by  the  accused  to  save  himself  reasonably  seemed  to  him  to  be  neces- 
sary, they  must  acquit.  This  was  calculated  to  mislead,  and  was  not 
the  law,  without  the  qualification  contained  in  instructions  i  and  2, 
given  for  the  defense.  There  is  but  little  analogy  between  this  case 
and  the  case  of  Meredith  v.  The  Commonwealth,  reported  in  18  B. 
Mon.  40.  In  the  latter  case,  the  accused  had  not  only  been  threat- 
ened, but  assaulted,  and  a  gun  pointed  at  the  accused  by  the  deceased 


S.  Haskead  v.  a.  W.  Malldry.  53 

at  the  time  the  shot  was  fired.  In  this  instance,  the  court,  in  the  in- 
struction, made  the  guilt  of  the  accused  depend  upon  the  fact  as  to 
whether  he  could  or  not  have  safely  retreated,  and  thereby  save  his 
life ;  whereas  he  had  the  right,  if  he  believed  he  was  in  danger  of 
losing  his  life,  and  had  reasonable  grounds  for  so  believing,  to  shoot, 
although  it  afterwards  appeared  that  he  might  have  avoided  the 
danger  without  even  injuring  his  adversary. 

The  fact  that  the  jury  were  told  that  if  they  believed  the  accused 
guilty,  but  entertained  a  doubt  as  to  the  degree  of  guilt,  they  must 
find  him  guilty  of  manslaughter,  was  proper;  for  if  guilty,  it  was 
murder  or  manslaughter. 

The  court  properly  repeated  the  testimony  as  to  the  conduct  of  the 
deceased  on  the  day  of  the  killing.  It  seems  that  he  had  been  quar- 
reling with  one  or  two  others,  but  what  he  said  or  did  had  no  con- 
nection with  reference  to  the  accused,  and  is  in  no  manner  calculated 
to  cause  a  belief  by  the  latter  that  he  would  be  attacked  by  deceased. 
The  judgment  must  be  affirmed. 

Brent  &  McMiller,  for  appellant, 
John  Rodman,  for  appellee. 


S.  Haskead  v.  A.  W.  Mallory. 

Real  Estate— Adverse  Possession — Grantee's  Knowledge  of  Claim. 

A  posBesaion  is  not  adverse  where  the  person  holding  it  looks  for 
title  to  another  under  whom  he  holds. 

Grantee's  Knowledge  of  Claim. 

Where  the  real  holder  of  title  conveys  it  to  another  who  knows  that 
one  in  possession  is  asserting  a  claim,  he  takes  the  title  subject  to  any 
defense  such  claimant  may  have. 

APPEAL  FROM  TODD  CIRCUIT  COURT 

September  16,  1874. 

Opinion  by  Judge  Cofer  : 

• 

We  do  not  think  the  circuit  court  abused  a  sound  discretion  in 
allowing  appellee's  amended  petition  to  be  filed,  especially  in  view  of 
the  fact  alleged  therein,  and  not  denied,  that  appellant's  deed,  to  at- 
tack which,  as  champertous,  seems  to  have  been  the  principal  induce- 
ment to  the  filing  of  the  amendment,  had  only  been  filed  a  few  days 
before. 


54  Kentucky  Opinions. 

That  both  Martin  and  appellee  knew  and  recognized  the  fact  that 
Cidcock  held  the  legal  title,  and  that  Martin  looked  to  him  for  title 
up  to  the  time  of  his  alleged  sale  to  appellee,  is  clearly  established 
by  the  evidence.  That  such  a  possession  is  not  adverse  is  well 
settled.  Gossom  v.  Donaldson,  i8  B.  Mon.  185.  The  agreement  by 
which  Martin  sold  his  interest  in  the  land  to  appellee,  expressly 
recognized  Cidcock  as  holding  the  title ;  he  took  possession  to  hold 
until  the  title  could  be  procured  from  Cidcock;  and  there  is  noth- 
ing to  indicate  a  change  in  the  character  of  appellee's  holding  prior 
to  the  date  of  the  deed  from  Martin  in  1869. 

The  conveyance  from  Cidcock  to  appellant  was  made  in  1867, 
while  appellee  held  under  the  arrangement  with  Martin,  and  was 
looking  to  Cidcock  for  title,  and  were  not  champertous,  but  appellant 
had  notice  of  the  character  of  appellee's  claim,  and  took  the  legal 
title  subject  to  any  equity  in  Martin,  or  in  his  vendee;  so  that  ap- 
pellant stands  in  precisely  the  same  position  that  Cidcock  would 
have  stood  if  he,  instead  of  appellant,  had  been  sued. 

It  is  alleged  in  the  amended  petition  that  at  or  about  the  date  of 
the  sale  of  the  land  to  Martin,  Cidcock  gave  him  a  title  bond,  agree- 
ing therein  to  convey  the  land  to  said  Martin.  This  allegation  is  not 
denied,  and  as  appellant  knew  Martin  was  in  possession,  and  that 
appellee  had  entered  under  him,  he  holds  the  legal  title  subject  to 
the  superior  equity  of  appellee.  But  as  he  holds  subject  to  the 
equities  of  appellee,  because  he  stands  in  the  position  of  Cidcock, 
he,  for  the  same  reason,  has  the  same  rights  that  Cidcock  would 
have  had;  and  as  Cidcock  could  not  have  been  compelled  to  con- 
vey until  he  was  paid  for  the  land,  it  was  error  to  bar  appellant's 
right  without  payment  to  him  of  the  unpaid  purchase  money,  which 
the  evidence  shows  was  agreed,  in  1861,  to  be  twenty-five  dollars. 
But  when  that  sum,  with  interest  from  January  i,  1862,  is  paid,  ap- 
pellant ought  to  be  adjudged  to  convey  the  land  to  appellee. 

For  the  error  indicated,  the  judgment  is  reversed,  and  the  cause 
is  remanded  for  further  procedings  as  herein  directed. 

Terry  &  Perkins,  for  appellant. 


J.  K.  P.  Vanarsdale,  et  al.,  v.  John  F.  Dry,  et  al. 

Infants— Process — ^Motion  to  Modify  Judgment. 

Civil  Code,  %%  81  and  679,  prescribe  the  manner  of  service  of  process 
on  Infants  less  than  fourteen  years  old,  and  where  not  brought  Into 
court  In  the  legal  way  a  motion  to  modify  or  set  aside  Judgment  as 
to  them  should  be  sustained. 


J.  K.  P.  Vanarsdale,  et  al.,  v.  John  F.  Dry,  et  al.         55 

APPEAL  FROM  LINCOLN  CIRCUIT  COURT. 

September  18,  1874. 

Opinion  by  Judge  Pryor  : 

One  of  the  appellants,  J.  P.  Vanarsdale,  at  the  time  of  the  rendi- 
tion of  the  judgment  on  the  attempted  service  of  process,  was  under 
fourteen  years  of  age  and  therefore  was  not  in  court,  by  reason  of 
the  summons,  either  actually  or  constructively.  The  code  of  practice 
provides  that  the  court  rendering  a  judgment  shall  have  power  after 
the  time  at  which  it  is  rendered,  to  vacate  or  modify  such  judgment 
"for  erroneous  proceedings  against  an  infant,  etc.,  where  the  con- 
dition of  such  defendant  does  not  appear  in  the  record,  nor  the  error 
in  the  proceedings,  also  for  errors  in  a  judgment  shown  by  an  infant 
in  twelve  months  after  or  being  at  age."  Civ,  Code,  Sec.  379.  It  is 
not  made  to  appear  in  the  proceedings  that  the  infant  appellant, 
P.  P.  Vanarsdale,  was  at  the  time  under  fourteen  years  of  age,  and, 
therefore,  he  had  the  right  to  be  heard  by  reason  of  Subsec.  5, 
Sec.  579,  Civ.  Code.  Sec.  81,  Civ.  Code,  prescribes  the  manner  in 
which  process  shall  be  served  on  an  infant  under  fourteen  years ;  and 
it  is  not  pretended  that  this  appellant  was  in  court  by  a  summons  in 
accordance  with  this  section.  A  judgment  was  rendered  against  him 
in  the  absence  of  any  service  of  summons,  appointment  of  guardian 
ad  litem,  or  answer. 

There  seems  to  have  been  no  objection  made  to  the  proceeding 
to  vacate  the  judgment,  the  answer  and  cross-petition  in  the  original 
action,  and  if  made  might  not  have  been  available ;  still,  the  prefer 
mode  is  by  a  separate  action  in  the  nature  of  a  petition  to  modify 
or  vacate  the  judgment.  There  is  no  question  but  what  the  appellant, 
J.  P.  Vanarsdale,  was  entitled  to  relief,  as  the  judgment  would  not 
in  any  manner  affect  his  rights.  As  to  Smith  and  wife,  they  can- 
not be  regarded  as  in  court  by  petition.  Their  answer  is  not  made 
a  cross-petition,  nor  is  there  any  statement  in  it  prescribing  a  cause 
of  action.  The  statement  in  the  answer  to  the  cross-petition  of  J.  P. 
Vanarsdale,  that  they  adopt  his  statements  and  seek  the  same  relief, 
cannot  be  regarded  as  a  cross-petition  or  a  proceeding  for  relief. 
The  judgment  on  this  pleading  should  not,  however,  be  permitted  to 
affect  their  rights;  and  if  they  can  so  amend  their  pleadings  as  to 
present  grounds  for  relief  upon  the  return  of  the  cause,  they  should 
be  permitted  to  do  so.  The  sale  of  the  land  under  the  judgment 
proves  no  title  whatever  to  the  purchase  of  that  interest  owned  by 
the  appellant    The  land  was  purchased  by  the  mother,  who  was 


56  Kentucky  Opinions. 

a  party  to  the  action,  and  instrumental  in  procuring  the  judgment. 
The  transfer  to  Dry  vested  him  with  no  better  right  than  the  original 
purchaser  acquired ;  and  besides,  he  was  himself  substituted  as  plain- 
tiff in  the  action.  Neither  Dry  nor  the  administrators  of  their  ven- 
dees acquired  any  title  to  the  interest  of  the  appellant  in  the  land. 
The  judgment  must  therefore  be  reversed,  and  cause  remanded 
with  directions  to  refer  the  case  to  the  commissioner  in  order  to 
ascertain  the  amount  of  personal  assets  in  the  hands  of  the  ad- 
ministratrix, with  which  to  pay  the  debts  of  the  intestate ;  and  after 
applying  the  same,  or  crediting  the  whole  indebtedness  by  the 
amount,  the  interest  owned  by  the  appellant  in  the  land  will  be  sub- 
jected to  the  payment  of  his  part  of  any  remaining  indebtedness,  re- 
quiring the  purchasers,  Dry,  or  his  vendees,  to  account  for  his  part 
of  the  rent  whilst  they  have  had  possession,  to  be  deducted  from  the 
amount  for  which  he  is  made  liable.  Dry  should  be  substituted  to 
the  extent  he  was  paid,  to  the  rights  of  the  evidence,  and  the  interest 
of  the  appellant  in  the  land  should  be  sold  to  satisfy  any  sum  found 
to  be  due  by  him.  The  judgment  reversed  and  cause  remanded  for 
further  proceedings  consistent  with  this  opinion. 

George  R.  McKee,  for  appellants. 
Hill  &  Allcan,  for  appellees. 


James  Deaner  v»  Francis  Storme. 

Judgment— Separate  Causes  of  Action. 

The  rendition  of  judgment  on  an  amended  petition  in  less  than 
twenty  days  after  the  service  of  process  is  erroneous,  but  can  only  be 
corrected  by  motion  In  the  court  below. 

Separate  Causes  of  Action. 

If  two  notes  that  are  liens  on  land  are  both  due,  they  may  be  de- 
clared on  in  one  petition,  but  they  constitute  different  causes  of  action 

APPEAL  FROM  LARUE  CIRCUIT  COURT. 

September  18,  1874. 

Opinion  by  Judge  Pryor  : 

The  rendition  of  the  judgment  on  the  amended  petition  in  less 
than  twenty  days  from  the  service  of  the  summons,  although  er- 
roneous,  was  but  a  clerical  misprision,  and  can  only  be  corrected  by 
motion  in  the  court  below.    Civ.  Code,  §  578, 


F.  Henry  &  Co.  v.  B.  T.  Bennett  and  Wife.  57 

Although  both  notes  are  liens  upon  the  land,  they  constitute  sep- 
arate and  distinct  promises  to  pay.  If  both  had  been  due,  they  both 
might  have  been  declared  on  in  the  original  petition,  but  still  they 
constitute  different  causes  of  action. 

It  is  made  clear  from  the  proof  that  no  such  contract  as  is  set 
up  in  defendant's  answer  was  made  between  the  parties.  The  judg- 
ment is  affirmed. 

Read  &  Twyman,  for  appellant. 
W.  H.  Chelf,  for  appellee. 


F.  Henry  &  Co.  v,  B.  T.  Bennett  and  Wife. 

Improvemmt  of  Wife's  Real  Estate— Fraud  of  Creditors. 

An  insolyent  debtor  may  not  take  funds  due  his  creditors  and  im- 
prove his  wife's  real  estate. 

Fraud  on  Creditors— Wife's  Participation. 

Where  the  wife  knows  of  the  insolvency  of  her  husband  and  knows 
.   he  is  using  money  due  his  creditors  to  improve  her  real  estate,  she  is 
held  to  have  participated  in  the  fraud;  and  while  she  cannot  be  de- 
prived of  her  title  secured  before  insolvency,  the  court  will  cause  the 
rents  of  such  property  to  be  applied  upon  creditors'  claims. 

APPEAL  FROM  CAMPBELL  CIRCUIT  COURT. 

September  18,  1874. 

Opinion  by  Judge  Cofer  : 

The  lots  in  the  contest  were  purchased  in  1864,  and  paid  for  long 
before  the  creation  of  the  appellants'  debt,  and  at  a  time  when  B. 
T.  Bennett  was  apparently  in  prosperous  financial  conditions;  and 
there  is,  therefore,  no  reason  for  imputing  a  fraudulent  intention  on 
his  part  in  causing  the  title  to  be  conveyed  to  his  wife.  The  im- 
provements put  upon  the  lot  fronting  on  Putnam  street,  were  erected 
in  1867,  also  prior  to  the  creation  of  appellants'  debt,  and  when  the 
circumstances  of  Bennett  may  have  justified  such  expenditure  for 
the  improvement  of  his  wife's  property. 

But  the  house  on  the  lot  fronting  on  York  street  was  erected  after 
the  creation  of  the  appellants'  debt,  and  at  a  time  when  both  hus- 
band and  wife  must  have  known  that  the  former  was  insolvent.  He 
had  just  mortgaged  the  Monmouth  street  property  to  Mcintosh  for 
over  $8,000,  and  the  property  of  the  firm  of  which  B.  T.  Bennett 


58  Kentucky  Opinions. 

was  the  only  responsible  member,  was  sold  under  legal  process  for 
debt,  either  before  the  commencement  of  the  house  on  York  street, 
or  while  it  was  in  course  of  erection.  This  house  and  other  im- 
provements put  on  the  lot,  cost  probably  not  less  than  $5,000.  B.  T. 
Bennett  was,  at  the  time  this  was  done,  hopelessly  insolvent.  He 
had,  from  1864  to  1870,  secured  to  his  wife  the  title  to  real  estate 
which,  with  its  improvements,  was  worth,  as  he  himself  proves,  at 
least  $10,000.  Can  a  husband  thus  enrich  his  wife  at  the  expense  of 
creditors?  We  think  not.  Nor  can  he  get  his  effects  beyond  the 
reach  of  the  chancellor  by  such  shifts  as  that  attempted  in  this  case. 

The  house  on  York  street  was  built,  not  only  with  the  consent  of 
Mrs.  Bennett,  but  at  her  urgent  solicitation.  She  knew  her  husband 
was  insolvent,  and  that  in  equity  and  good  conscience  the  money  ex- 
pended on  the  house  ought  to  have  been  used  to  pay  debts,  and  she 
must,  therefore,  be  held  to  have  participated  in  the  fraud  intended  by 
her  husband.  But  she  cannot,  on  that  account,  be  deprived  of  the 
title  acquired  in  1864,  to  the  lot,  but  the  court  can  and  will  take  the 
property  which  she  is  now  renting,  and  cause  it  to  be  rented  out  to 
pay  the  appellants'  debt.  Athey,  et  al,,  v.  Knotts,  6  B.  Mon.  24; 
Robinson  v,  Huffman  and  Wife,  15  5.  Mon.  65;  Shackleford,  As- 
signee, et  al,  V.  Collier,  et  ai,  6  Bush  149. 

But  it  is  insisted  for  Mrs.  Bennett  that  she  refused  to  sign  the 
mortgage  on  the  Monmouth  street  property,  unless  her  husband 
would  agree  to  build  the  house  on  the  York  street  property,  and  that 
he  did  agree  to  do  so  in  consideration  of  the  release  of  her  potential 
right  of  dower.  We  are  not  satisfied  that  any  such  agreement  was 
made,  but  if  made,  it  would  weaken,  rather  than  strengthen,  her 
case.  The  debt  for  which  the  mortgage  was  given  was  less  tlian 
$9,000 ;  and  a  demand  by  the  wife,  and  agreement  by  the  husband,  to 
build  for  the  wife  a  house  worth  $5,000,  in  consideration  that  she 
would  release  her  dower  in  property  mortgaged  for  $9,000,  is  itself 
strong  evidence  of  a  fraudulent  combination  between  them  to  cheat 
creditors. 

The  judgment  dismissing  appellants'  petition  is  reversed,  and  the 
cause  is  remanded  with  directions  to  cause  the  lot  fronting  on  York 
street  and  its  improvements,  to  be  rented  out  until  a  sum  sufficient 
to  satisfy  the  appellants*  debt,  interest  and  costs  is  realized. 

Hawkins,  Boden,  for  appellants. 
Benton,  Jones,  Homshell,  for  appellees. 


B.  B.  Wyatt  v.  W.  D.  Tinsley,  et  al.  59 

B.  B.  Wyatt  v.  W.  D.  Tinsley,  et  al. 

Injunction — ^Damages. 

When  an  injunction  is  dissolved  the  court  may  in  its  discretion  call 
a  Jury  to  assess  the  damages  sustained  by  those  against  whom  the  in- 
junction was  procured. 

Damages. 

When  the  use  of  money  is  enjoined,  the  rate  of  damages  does  not 
exceed  ten  per  cent. 

APPEAL  FROM  CRITTENDEN  CIRCUIT  COURT. 

September  19,  1874. 

Opinion  by  Judge  Pryor  : 

The  dismissal  of  the  answer  and  cross-petition  of  Tinsley  was  a 
dissolution  of  the  injunction,  as  upon  that  proceeding  the  restraining 
order  issued.  When  an  injunction  is  dissolved,  the  code  expressly 
provides  that  the  court  shall  assess  the  damages,  and  may  in  its 
discretion,  empanel  a  jury  for  that  purpose.  When  money  is  en- 
joined, the  rate  of  damages  shall  not  exceed  ten  per  cent.  <mi  the 
amount  released  by  the  dissolution.  No  recovery  of  damages  can 
be  had  on  the  bond.  The  party  may  recover  the  money  enjoined,  if 
lost  by  reason  of  the  injunction,  but  no  damages  on  the  amount  en- 
joined ;  so  he  may  recover  the  value  of  the  property  if  lost  by  reason 
of  the  injunction,  but  cannot  recover  damages  for  its  use,  hire  or 
rent  unless  such  damages  have  been  assessed  by  the  court  at  the 
time  the  injunction  is  dissolved.  In  this  case  it  is  not  pretended  that 
the  money  enjoined  was  lost,  or  the  interest  upon  it,  but  on  the 
contrary,  the  petition  admits  its  collection;  and  the  only  damages 
that  could  be  recovered  would  be  the  special  damages  not  exceeding 
ten  per  cent.,  if  such  damages  had  been  assessed  by  the  court.  No 
averment  having  been  made,  no  recovery  can  be  had.  There  is, 
therefore,  nothing  in  the  plaintiff's  case  and  the  court  below  very 
properly  dismissed  it.  See  Civ.  Code,  §  325.  The  evidence  in  the 
case  shows  beyond  question  that  the  notes  held  by  the  appellee, 
Tinsley,  and  pleaded  as  a  set-off,  had  long  prior  thereto  been  settled 
and  accounted  for.  The  judgment  is  therefore  affirmed  on  both  the 
original  and  cross  appeals. 

P.  H.  Darby,  for  appellant. 
S.  Marble,  for  appellees. 


6o  Kentucky  Opinions. 

George  Raymond's  Ex'r  v.  J.  V.  Froman. 


Real  Estate  Conveyance— -Bond — ^Warranty^— Assignment  of  Bond. 

Persons  executing  a  bond  to  convey  real  estate,  containing  a  war- 
ranty that  the  land  described  therein  contains  300  acres,  are  bound  to 
make  good  a  deficiency  in  the  acreage  of  the  land  sold. 

Assignment  of  Bond. 

One  who  assigns  a  bond  in  which  there  is  contained  a  warranty  that 
the  land  described  contains  a  designated  number  of  acres,  and  there- 
after Joins  with  the  assignee  in  a  warranty  deed  and  receives  a  part 
of  the  purchase  price,  is  liable  for  a  deficiency  in  acreage  named  in  the 
bond  and  deed. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

September  20,  1874. 

Opinion  by  Judge  Pryor  : 

We  perceive  no  reason  for  any  complaint  by  Raymond's  personal 
representative  on  account  of  the  judgment  in  this  case.  Raymond 
had  represented  the  land  by  his  bond  to  Myers  as  containing  three 
hundred  acres,  and  this  bond  had  been  assigned  to  Briscoe,  the  latter 
having  sold  the  land  to  the  appellee.  It  is  true  that  Froman  had  no 
cause  of  action  against  Raymond  by  reason  of  his  bond  to  Myers, 
and  if  this  was  the  only  ground  of  responsibility  on  the  part  of  the 
appellant,  no  recovery  could  be  had.  But  Raymond  united  with 
Briscoe,  who  was  the  assignee  of  the  bond,  the  former  having 
executed  to  Myers  in  a  deed  to  the  appellee,  in  which  it  is  recited  that 
the  terms  of  the  bond  were  "that  the  tract  contains  three  hundred 
acres  or  over;"  and  in  consideration  of  one  thousand  sixty-three 
dollars  and  ninety-five  cents,  paid  to  Raymond,  the  two,  Raymond 
and  Briscoe,  conveyed  the  land  to  Froman.  There  is  not  only  the 
representation  as  to  quantity  contained  in  the  deed,  but  the  con- 
sideration is  paid  by  the  purchaser  to  Raymond,  the  vendee  of 
Myers.  If  Raymond  had  only  united  in  the  deed  with  Briscoe  so 
as  to  pass  the  legal  title  without  binding  himself  by  any  covenant 
and  without  any  consideration,  no  liability  would  exist ;  but  here  he 
united  in  the  representation  made  as  to  the  number  of  acres,  also 
in  the  warranty  of  title,  and  receives  the  purchase  money;  and  his 
liability  for  the  deficit  scarcely  admits  of  controversy. 

The  judgment  is  a/Krnied. 
A,  H,  Field,  for  appellant. 
Thompson,  for  appellee. 


John  R.  Boothe,  et  al.,  v,  Sarah  Shrout's  Adm'r.         6i 

John  R.  Boothe,  et  al.,  v,  Sarah  Shrout's  Adm'r. 

Practice — Deficient  Record. 

Where  the  clerk's  certificate  shows  that  part  of  a  deposition  is  miss- 
ing from  his  office  and  hence  not  included  in  the  record,  the  court  of 
appeals  will  presume  that  the  Judgment  helow  is  correct. 

APPEAL  FROM  NICHOLAS  CIRCUIT  COURT. 

September  22,  1874. 

Opinion  by  Judge  Cofer  : 

» 
A  part  of  one  of  appellee's  depositions  is  missing  from  the  record, 

and  the  clerk  certifies  that  it  is  missing  from  his  office ;  and  as  the 

decision  of  the  case  depends  wholly  upon  questions  of  fact,  we  are 

bound  by  a  well-established  rule,  often  recognized  by  this  court,  to 

presiune,  in  the  absence  of  a  part  of  the  evidence  heard  by  the  court 

of  original  jurisdiction,  that  the  judgment  is  right. 

Wherefore  the  judgment  is  pfHrmed, 

Thomas  F.  Hargis,  for  appellants. 
E.  C.  Phister,  for  appellee. 


City  of  Paducah  v.  A.  S.  Jones's  Adm'x,  et  al. 

City— Street  Improvements — Payments  for. 

The  eity  is  liable  for  such  improvements  of  a  public  street  as  are 
ordered  by  it;  and  if  there  is  a  contract  between  the  contractor  and 
the  owners  of  the  real  estate  by  which  the  owners  are  to  pay  for  such 
work  or  any  part  thereof,  the  city  to  avoid  payment  must  set  up  such 
contract  by  way  of  answer. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

September  22,  1874. 

Opinion  by  Judge  Cofer  : 

We  perceive  no  error  in  the  judgment  against  the.  city.  The  evi- 
dence does  not,  in  our  opinion,  establish  the  existence  of  a  street 
across  the  "reserved  ground,"  either  by  express  or  implied  recog- 
nition by  appellee  or  its  vendors. 

The  city,  having  directed  the  improvement  to  be  made,  cannot  es- 
cape payment  to  the  contractor  on  the  ground  that  there  was  no 
street  at  the  place  where  the  work  was  done.    It  was  the  duty  of  the 


62  Kentucky  Opinions. 

mayor  and  council,  and  not  of  the  contractor,  to  know  whether  or  not 
there  was  a  street  at  the  place  directed  to  be  improved.  Nor 
can  the  city,  under  the  pleadings  in  this  case,  escape  the  payment  of 
any  part  of  the  sum  now  due  the  contractor. 

It  is  true  he  agreed  to  look  to  the  owners  of  property  for  all  the 
work  done  under  private  contracts,  and  it  is  also  true  that  Harris, 
who  seems  to  have  owned  one- fourth,  and  Norton,  who  seems  to  have 
owned  two-thirds  of  one-fourth  of  the  reserved  ground,  signed 
contract,  but  one  of  the  appellees,  Jones,  sued  the  railroad  company 
and  Morrow  for  the  whole  amount  due  for  the  entire  work  done  on 
this  part  of  the  street.  Having  alleged  facts  which  rendered  the  city 
liable  in  case  the  owners  of  the  property  were  not,  it  was  the  duty  ot 
the  city  to  set  up  such  defense  as  it  had,  and  if  it  meant  to  rely  for 
exoneration  on  the  fact  that  a  part  of  the  work,  the  price  of  which 
was  sued  for,  was  done  under  private  contract,  it  should  have  set 
forth  the  facts  in  its  answer. 

There  is  no  allegation  in  the  answer  that  Norton  or  Harris  had 
signed  the  private  contract;  and  there  was,  therefore,  nothing  on 
which  to  base  the  action  of  the  circuit  court  in  deducting  the  amount 
of  their  supposed  liability  from  the  amount  shown  by  the  estimates 
to  be  due  to  Jones.  The  petition  showed  that  Morrow  had  signed 
the  contract ;  the  evidence  shows  that  he  had  paid  his  share  of  the 
assessment;  and  the  judgment  was  rights  both  as  to  him,  and  also 
as  to  the  deduction  made  for  the  payment  made  by  him. 

But  as  Norton  &  Harris  signed  the  contract,  and  were  probably 
liable  to  Jones'  administratrix  for  their  share  of  the  work  done  on 
the  reservation,  the  city  ought  to  be  allowed  to  amend  its  answer, 
and  set  up  that  fact,  if  it  offers  to  do  so  in  a  reasonable  time ;  and 
the  plaintiff  should  also  be  allowed  to  amend  her  petition,  if  she 
desires  to  do  so,  so  as  to  make  Harris  &  Norton  parties,  and  so 
as  to  enforce  any  lien  that  may  exist  on  their  interest  in  the  land. 

Wherefore  the  judgment  is  affirmed  on  the  original,  and  reversed 
on  the  cross-appeal,  and  the  cause  is  remanded  for  further  proceed- 
ings in  accordance  with  this  opinion. 

D,  A,  McGaugill,  for  appellant, 
P.  D,  Yeiser,  for  appellees. 


WiLUAM  Howell  v,  William  S.  Edwards,  et  al.  63 

William  Howell  v,  William  S.  Edwards,  et  al. 

Conveyance  to  Defraud  Creditors — Mortgage  of  Grantee  to  Innocent 
Purchasers — ^Validity — ^Election. 

An  innocent  mortgagee  of  land  mortgaged  by  the  grantee.  In  a  deed 
made  to  defraud  the  creditors  of  the  grantor,  is  entitled  to  have  hia 
debt  paid  out  of  the  land  before  the  same  can  be  made  subject  to  the 
creditors'  claims. 

Creditors'  Claims. 

While  an  Innocent  mortgagee  of  lands,  mortgaged  by  a  grantee  of  a 
deed  made  to  defraud  grantor's  creditors^  is  entitled  to  receive  his 
money,  the  creditors  of  such  grantor  are  entitled  to  receive  the 
amount  in  excess  of  the  mortgagee's  claim. 

Parties  to  Creditors'  Action. 

Where  the  grantee,  in  a  deed  made  to  defraud  creditors,  has  con- 
veyed the  land,  neither  he  nor  his  grantor  are  necessary  parties  to  a 
creditor's  action  to  recover  the  excess  over  the  sum  due  an  innocent 
mortgagee  of  such  grantee. 

Election  of  Creditors. 

Where  the  grantee  of  a  deed  made  to  defraud  creditors^  mortgages 
the  land  to  an  innocent  party,  and  in  a  foreclosure  the  land  is  sold, 
creditors  entitled  to  the  excess  of  purchase  money  after  the  payment 
of  the  mortgage  may  elect  to  take  personal  judgment  against  the 
owner  of  the  land  or  have  the  land  sold. 

APPEAL.  FROM  GREEN  CIRCUIT  COURT. 
September  22,  1874. 

Opinion  by  Judge  Pryor: 

The  evidence  shows  beyond  controversy  that  the  conveyance  by 
James  Lewis  to  his  son,  James  W.  Lewis,  was  in  fraud  of  the  rights 
of  creditors;  but  the  mortgages  afterward  executed  by  the  son  to 
Johnston  and  Hodges  were  executed  in  good  faith ;  and  the  payment 
of  these  mortgages  and  these  assignments  to  Edwards,  including 
the  right  of  the  latter  to  foreclose,  seems  to  be  equally  as  clear 
from  fraud.  All  these  parties,  including  Edwards,  so  far  as  the 
makers  of  the  deed  and  mortgages  are  concerned,  must  be  regarded 
as  innocent  purchasers,  and  the  claims  due  by  reason  of  the  mort- 
gages first  satisfied. 

Howell,  the  appellant,  was  the  owner  of  all  these  judgments,  and, 
when  adding  together  the  amount  of  each,  it  produces  a  sum  giving 
the  chancellor  jurisdiction;  besides,  there  is  no  demurrer  for  the 
want  of  jurisdiction,  and  if  there  had  been  we  see  no  reason  why 


64  Kentucky  Opinions. 

the  appellant  could  not  have  asked  a  court  of  equity  to  remove  the 
incumbrances  upon  the  property  by  reason  of  the  fraud  without  first 
resorting  to  his  execution  at  law  in  the  circuit  court.  The  constable 
had  returned  all  these  executions,  no  property  having  been  found, 
evidencing  the  fact  that  there  was  no  personal  estate  out  of  which 
the  debts  could  be  made.  The  debtor  had  made  a  fraudulent  con- 
veyance of  his  land  to  his  son,  and  this  land  was  encimibered  by 
mortgages  aliso  alleged  to  be  fraudulent,  or  to  have  been  satisfied  by 
payment  frc»n  the  fraudulent  vendor.  If  he  had  levied  the  execution 
on  the  land  he  still  would  have  had  to  resort  to  a  court  of  equity  to 
reach  the  funds  that  are  now  sought  to  be  recovered,  or  to  have 
removed  the  encumbrance  upon  the  land.  Although  these  mort- 
gages are  held  to  be  valid,  the  original  conveyance  being  fraudu- 
lent, the  chancellor  will  not  turn  his  back  upon  the  creditor  so  long 
as  any  part  of  the  fraudulent  property  or  its  proceeds  can  be  found 
in  the  hands  of  either  the  fraudulent  vendor  or  vendees,  but  cannot 
subject  it  when  acquired  in  good  faith  for  a  valuable  consideration 
by  innocent  parties.  Neither  the  vendor  of  the  land,  his  heirs  or 
administrators  were  necessary  parties  to  the  action ;  neither  had  any 
right,  title  or  interest  in  the  land.  The  vendor  could  not  recover  it 
or  its  proceeds  from  the  vendee,  and  if  not,  no  recovery  could  be  had 
by  his  heirs  or  personal  representatives.  The  conveyance  divested 
the  owner  of  all  right  and  title  to  the  property;  and  none  but 
creditors  could  attack  it  upon  the  ground  of  fraud.  The  vendor 
could  not  by  petition  rely  upon  the  fraud,  and  ask  that  it  be  sub- 
jected to  the  payment  of  his  honest  debts;  it  must  be  done  by  the 
creditor.  The  son,  James  W.  Lewis,  held  this  land  in  trust  for 
creditors ;  he  held  the  legal  title,  the  equitable  right  being  in  those  to 
whom  the  father  was  indebted.  It  is  true  that  the  son  was  an 
obligor  in  the  original  notes  and  judgments,  still,  it  is  evident  that 
the  conveyance  was  made  to  him  for  the  reason  that  he  could  best 
place  it  beyond  the  reach  of  those  entitled  to  it.  He  paid  the  father 
for  the  land  with  the  father's  money  and  disposed  of  his  other  prop- 
erty regardless  of  the  rights  of  creditors.  The  land  sold  under  the 
mortgage  for  near  six  hundred  dollars  more  than  would  satisfy  the 
debt  due  to  Edwards.  The  latter  sets  up  no  claim  to  this  overplus ; 
nor  does  F.  S.  Lewis,  the  purchaser,  who  is  made  a  defendant  and 
served  with  process,  deny  the  right  of  the  appellant  to  subject  the 
land  or  its  proceeds  to  the  payment  of  this  debt.  It  is  maintained  by 
appellant  that  the  land  is  subject  to  the  payment  of  his  claim.  James 
W.  Lewis  is,  or  was  at  the  time  of  the  institution  of  this  action,  in 


John  C.  Gaddis  &  Co.  v.  T.  T.  Ramsey.  65 

possession  of  the  land,  although  it  had  been  previously  purchased 
by  F.  S.  Lewis.  Under  the  suit  of  Edwards  to  foreclose  his  mort- 
gage, James  W.  Lewis  had  been,  by  the  sale,  divested  of  his  right  to 
the  land,  and,  upon  the  payment  of  the  sale  bonds,  F.  S.  Lewis  was 
entitled  to  a  deed.  The  execution  that  issued  upon  this  sale  bond 
was  an  ordinary  fief;  and  this  land  was  levied  upon  and  sold  by 
the  sheriff  as  the  property  of  James  W.  Lewis.  This  was  error, 
and  passed  no  title  to  Edwards  for  the  reason  that  the  land  belonged 
to  F.  S.  Lewis,  he  having  been  the  purchaser  in  the  suit  to  foreclose. 
The  chancellor  might  have  ordered  the  land  sold  to  pay  the  debt,  but 
Edwards  had  no  right,  after  the  sale  to  F.  S.  Lewis,  to  have  the 
land  sold  as  the  property  of  James  W.  Lewis  under  an  ordinary 
execution  so  as  to  defeat  the  claim  of  the  appellant.  He  had  th« 
right  to  his  mortgage  debt,  but  not  to  sell  the  land  of  F.  S.  Lewis 
or  James  Lewis  or  James  Lewis'  son,  as  the  land  of  James  W. 
Lewis,  and  particularly  when  the  appellant  was  making  an  effort 
to  subject  it  by  this  proceeding  in  equity  to  which  Edwards  was  a 
party,  as  the  property  of  James  Lewis'  son  by  reason  of  the  fraud. 
The  court  below  should  have  subjected  this  land  to  the  payment  of 
appellant's  claim,  giving  preference,  however,  to  Edwards  for  his 
mcMiey  due  on  the  sale  bond  with  the  interest.  The  land  having  been 
purchased  by  F.  S.  Lewis,  and  the  proceeds,  after  paying  the  mort- 
gage debt,  being  the  property  of  James  Lewis  and  held  in  trust  by 
the  son  for  creditors  by  reason  of  the  fraud,  the  appellant,  to  the 
extent  of  F.  S.  Lewis'  indebtedness  for  it,  had  the  right  to  subject 
it  to  the  satisfaction  of  his  claim.  He  should  be  allowed  at  his  elec- 
tion to  take  a  personal  judgment  against  F.  S,  Lewis  or  have  the 
land  sold.  The  discharge  in  bankrupcy  of  James  W.  Lewis  from  the 
payment  of  his  debts  is  no  bar  to  this  proceeding.  It  is  not  to  sub- 
ject his  property,  but  the  property  he  holds  in  trust  for  others.  The 
judgment  of  the  court  below  is  reversed  and  cause  remanded  for 
further  proceedings  consistent  with  this  opinion. 

William  Howell,  for  appellant. 
William  W.  Chelf,  for  appellees. 


John  C.  Gaddis  &  Co.  v.  T.  T.  Ramsey. 

Partnership  Property— Receiver's  Sale— Sale  Under  Attachment  Judg- 
ment, Poriu  of. 

Where  a  receiver  is  appointed  and  sells  partnership  property,  bring- 
ing the  money  into  court,  such  sale  is  valid. 
6 


66  Kentucky  Opinions. 

Sale  Under  Attachment. 

Where  there  has  been  a  sale  of  partnership  property  by  receiver, 
the  sale  of  the  same  property  under  an  attadiment  against  one  of  the 
partners  is  invalid. 

Jndgnient. 

In  a  suit  by  the  purchaser  of  partnership  property  at  receiver's  8ale» 
against  the  purchaser  at  an  attachment  sale  against  one  of  the  part- 
ners, a  Judgment  is  proper  giving  the  plaintiff  the  property,  if  it  may  be 
found,  and  if  not  for  its  value. 

APPEAL  FROM  CAMPBELL  CIRCUIT  COURT. 

September  23, 1874. 

Opinion  by  Judge  Cofer  : 

On  August  29,  1870,  J.  G.  Keams  filed  his  petition  in  equity  in  the 
Harrison  Circuit  Court  against  Robert  Powell  and  Johnson  & 
Hardy,  alleging  in  substance  that  he  and  Powell  had  theretofore  been 
in  co-partnership  in  the  lumber  business  at  Cynthiana;  that  they 
owned  a  lumber  yard  at  that  place  and  other  property  which  was  in 
the  possession  of  Powell,  and  a  steam  circular  sawmill  situated  in 
Grant  county;  that  he,  Keams,  on  August  20,  had  entered  into  a 
contract  which  read  as  follows : 

1.  "J.  G.  Keams  is  to  take  the  business,  including  mill,  lumber 
yard  at  Cynthiana,  all  stock,  etc.,  and  all  debts  due  the  partnership, 
and  is  to  complete  and  carry  out  all  contracts  made  by  the  firm,  and 
is  to  become  responsible  for  and  settle  all  debts  due  by  the  firm, 
so  that  Robert  Powell  is  to  be  entirely  relieved  of  all  liability  on  ac- 
count of  said  partnership. 

2.  "Said  Keams  is  to  give  security  acceptable  to  the  firm  cred- 
itors, so  that  they  will  release  Powell  from  responsibility. 

3.  "The  above  stipulations  are  to  be  carried  out  and  fulfilled 
within  two  weeks  from  this  date ;  and  until  they  are  carried  out  and 
fulfilled  neither  party  shall  sell  or  dispose  of  any  of  the  partnership 
property." 

Kearns  also  alleged  that  he  was  ready  and  willing  to  execute  the 
agreement,  and  had  offered  to  give  security  to  the  creditors  as  he 
had  agreed  to  do ;  but  that  Johnson  and  Hardy  had  refused  to  release 
Powell,  on  the  ground  that  they  held  other  notes  on  the  firm  amount- 
ing to  about  $2,000;  that  these  notes  were  for  debts  contracted  by 
Powell  for  his  own  account  before  the  formation  of  the  partnership, 
and  for  which  he  had  given  the  firm  notes.  He  was  still  ready  and 
willing  to  carry  out  the  agreement  and  pay  the  amount  for  which  the 


John  C.  Gaddis  &  Co.  v.  T.  T.  Ramsey.  67 

firm  was  liable,  but  not  the  amount  which  Powell  owed  individually. 
He  prayed  that  Jc^nson  and  Hardy  might  be  forced  to  surrender 
the  firm  notes  executed  by  Powell  for  his  own  indebtedness,  and  that 
the  partnership  affairs  might  be  settled. 

On  September  5,  Powell  filed  his  answer  and  cross-petiticoi 
against  Keams  in  the  clerk's  office,  and  on  September  7  gave  Keams 
notice  thereof,  and  also  notice  of  an  application  to  the  judge  of  the 
circuit  court  at  Chambers  for  an  injunction  enjoining  Keams  from 
removing  or  selling  the  partnership  property. 

It  was  alleged  in  the  answer  and  cross-petition  that  the  debts  for 
which  the  notes  to  Johnson  &  Hardy  were  executed  had  been  as- 
sumed by  the  firm  of  Powell  &  Keams ;  that  Keams,  in  violation  of 
the  agreement,  had  taken  possession  of  the  firm  effects  at  Cynthi- 
ana,  and  had  sold  a  part,  and  threatened  to  dispose  of  the  whole  for 
his  own  use  to  the  exclusion  of  Powell,  and  in  fraud  of  the  creditors 
of  the  firm,  to  prevent  which  he  prayed  for  an  injunction  and  the 
appointment  of  a  receiver  to  take  charge  of  the  partnership  prop- 
erty and  to  collect  the  debts  due  the  firm,  and  for  a  settlement  of 
the  partnership. 

On  September  19,  the  appellants,  Gaddis  &  Co.,  claiming  to  be 
creditors  of  Powell  and  Keams,  brought  an  action  in  the  Campbell 
circuit  court,  seeking  a  judgment  against  Powell  and  Keams  and 
Muggridge,  who,  it  was  alleged,  was  also  a  member  of  the  firm, 
and  sued  out  an  order  of  attachment  which  they  placed  in  the  hands 
of  the  sheriff  of  Grant  county,  who  returned  it  with  the  following 
endorsement:  "Executed  September  22,  1870,  by  handing  J.  G. 
Keams  a  copy  of  this  order,  and  levying  cm  J.  G.  Keams'  steam 
circular  saw  mill,  consisting  of  boiler  engine,  saw,  bands  and  all  the 
fixtures  thereto  belonging,  taken  and  levied  upon  as  the  property  of 
defendant,  J.  G.  Kearns,  in  satisfaction  of  this  attachment." 

On  November  11,  1870,  an  order  was  made  in  the  action  in  the 
Pendleton  Circuit  Court,  referring  it  to  the  master ;  and  it  was  "fur- 
ther adjudged,  by  consent,  that  Perrin,  as  commissioner  and  re- 
ceiver, take  possession  of  all  the  partnership  property  in  this  county 
(Harrison)  and  Grant  county  *  *  *  and  sell  the  same  at  public 
auction."  In  obedience  to  this  order  the  receiver  on  December  i, 
1870,  sold  the  saw  mill,  when  the  appellee,  T.  T.  Ramsey,  became 
the  purchaser.  The  sale  was  reported  and  confirmed,  and  appellee 
todc  possession  of  the  mill. 

The  suit  in  the  Campbell  Circuit  Court  progressed  until  Novem- 
ber 28,  187 1,  when  there  was  a  trial  and  verdict  for  the  appellees 


68  Kentucky  Opinions. 

against  Powell,  Kearns  and  Mugg^idge;  but  the  court,  of  its  own 
motion,  set  aside  the  verdict  as  to  Powell  and  rendered  judgment  for 
the  amount  of  the  verdict  against  the  other  defendants,  sustained 
the  attachment,  and  adjudged  a  sale  of  the  attached  property. 
Under  this  order  the  sheriflF  of  Grant  county  sold  the  steam  saw  mill 
and  appellants  became  the  purchasers.  The  sale  was  reported,  and 
on  motion  of  appellants  it  was  quashed,  and  the  sheriff  of  Grant 
county  was  ordered  to  repossess  himself  of  the  mill,  and  to  sell  it 
under  the  former  order,  which  he  did,  and  the  appellant,  on  March 
21,  1872,  again  became  the  purchaser. 

It  appears  that  the  sheriff  of  Grant  county  never  took  possession 
or  control  of  the  mill,  under  the  order  of  attachment,  until  after 
the  first  sale  made  by  him  was  quashed,  which  was  on  February  15, 
1872,  but  that  it  had  been  in  possession  of  appellee  from  the  date  of 
his  purchase  at  the  commissioner's  sale,  under  the  judgment  in  the 
case  of  Kearns  v.  Powell,  in  Harrison. 

On  March  7,  1872,  before  the  second  sale  of  the  mill  by  the  sheriff 
of  Grant  county  was  reported  to  the  court,  the  appellee  filed  in  the 
office  of  the  clerk  of  the  Campbell  Circuit  Court  his  petition  under 
Sec.  257,  Civil  Code,  in  which  he  sets  up  claim  to  the  mill  and 
fixtures,  under  his  purchase  at  the  receiver's  sale  under  the  consent 
order  in  the  Harrison  Circuit  Court,  and  asked  that  his  claim  be  in- 
vestigated, which  was  done;  and  the  law  and  facts  having  been 
submitted  to  the  court,  judgment  was  rendered  in  favor  of  the  ap- 
pellee for  the  mill,  if  to  be  had,  and  if  not,  then  for  $2,000,  its  ad- 
judged value,  and  from  that  judgment  Gaddis  &  Co.  have  appealed. 

Various  objections  are  urged  against  the  judgment,  only  a  part 
of  which  need  be  particularly  noticed.  It  is  insisted  first,  that  the 
appellee  never  was  properly  in  court,  but  we  think  otherwise.  The 
filing  of  his  petition  in  the  clerk's  office  neither  made  him  a  party 
to  the  action,  nor  entitled  him  to  have  his  claim  investigated ;  but  it 
appears  that  **on  motion  of  T.  T.  Ramsey,  claimant  of  the  attached 
property  herein,  it  was  ordered  that  his  said  claim  be  investigated 
before  the  court,"  and  the  parties  waived  a  jury,  and  submitted  the 
law  and  facts  to  the  court.  This  order,  though  not  formal,  was  suffi- 
cient to  give  the  court  jurisdiction  to  hear  and  decide  upon  the 
validity  of  appellee's  claim. 

It  is  next  insisted  that  as  the  sale  had  been  made,  and  appellants 
had  purchased  the  mill  before  appellee's  petition  was  presented,  it 
was  then  too  late  for  the  court  to  investigate  his  claim.  Sec.  527, 
Civil  Code,  provides  that  "any  person  may,  before  the  sale  of  at- 


John  C  Gaddis  &  Co.  v,  T.  T.  Ramsey.  69 

tached  property,  or  before  the  payment  to  the  plaintiff  of  the  pro- 
ceeds thereof,  or  any  attached  debt,  present  his  petition,  verified  by 
oath,  to  the  court,  disputing  the  validity  of  the  attachment,  or  stat- 
ing a  claim  to  the  property,  or  an  interest  in,  or  lien  on  it  under  any 
other  attachment,  or  otherwise,  and  setting  forth  the  facts  on  which 
his  claim  is  founded,  and  his  claim  shall  be  investigated."  Under 
this  provision  it  is  not  too  late,  as  long  as  the  fund  arising  from 
the  sale  is  under  the  control  of  the  court,  for  a  claimant  to  present 
his  petition;  and  until  the  sale  of  property  has  been  reported,  and 
confirmed,  the  property  itself  is  still  subject  to  the  order  of  the 
court,  and  there  can  be  no  doubt  of  the  power  of  the  court  to  order 
it  to  be  delivered  to  a  claimant  who  manifests  his  title  to  it,  even 
where  it  has  been  purchased  by  a  stranger  to  the  proceedings. 

The  appellants  were  only  preferred  bidders  for  the  mill,  and  had 
no  absolute  claim  to  it  in  virtue  of  the  purchase,  and  cannot  defeat 
the  claim  of  appellee  on  that  ground. 

It  is  next  argfued,  that  as  appellants'  attachment  was  levied  before 
the  order  was  made  in  the  case  in  the  Harrison  Circuit  Court  re- 
ferring the  case  to  the  master  for  settlement  and  to  sell  the  property, 
the  lien  created  by  the  levy  overreaches  the  lis  pendens  in  that  case, 
which,  it  is  claimed,  was  created  only  by  the  order  of  reference  and 
sale.  The  decision  of  this  question  would  depend  upon  the  question 
whether  the  petition  of  one  partner,  and  the  answer  of  the  other, 
both  seeking  the  aid  of  the  court  to  settle  the  partnership,  and  the 
appointment  of  a  receiver  to  take  charge  of  the  partnership  prop- 
erty, would  create  a  Ms  pendens  as  to  such  property.  The  pleadings 
certainly  amounted  to  a  consent  on  the  part  of  both  members  of  the 
firm  that  the  court  should  assume  control  of  the  property;  it  was 
their  property  and  they  had  a  right  to  come  into  court  to  have  it 
applied  to  the  payment  of  firm  debts;  and  they  certainly  had  that 
right  so  far  as  appellants  were  concerned,  for  they  seem  to  have 
known  and  sanctioned  what  Powell  did,  at  least  at  the  time  of  his 
application  to  the  judge  for  an  injunction.  But,  however  this  may 
be,  the  appellants  have  failed  to  show  such  a  right  in  themselves 
to  the  mill  as  will  enable  them  to  defeat  the  claim  of  the  appellee. 

The  mill  was  the  property  of  the  firm  of  Powell  and  Kearns,  for 
the  executory  agreement  of  August  20,  never  having  been  carried 
out,  by  a  compliance  with  its  terms  by  Kearns,  the  title  to  the  mill 
remained  in  the  firm.  As  partnership  property  it  was  subject  first 
to  the  payment  of  firm  debts ;  and  the  title  of  the  firm  could  only 
be  divested  by  a  sale  by  the  firm,  or  by  a  judgment  for  firm  debts. 


JO  Kentucky  Opinions. 

and  in  order  to  divest  the  title  by  a  judgment  for  its  sale  to  pay  such 
debts,  such  proceedings  must  be  had  as  will  bind  all  the  members 
of  the  firm. 

The  appellants  have  not  obtained  a  judgment  against  Powell,  and 
therefore  never  could  have  acquired,  under  the  judgment,  the  title 
of  the  firm  to  the  mill.  The  judgment  being  against  Keams  alone, 
the  only  interest  the  appellants  could  have  acquired  was  whatever 
interest  Kearns  had  in  the  mill,  and  as  his  individual  interest  of  firm 
debts ;  and  he  would  only  have  what  might  remain  after  firm  cred- 
itors were  paid,  and  as  it  appears  that  the  firm  assets  will  not  pay 
the  firm  debts,  it  results  that  appellants  acquired  no  title  to  the  mill, 
and  that  its  seizure  at  their  instance  and  its  detention  by  them  were 
wrongful.  The  court  properly  adjudged  the  mill  to  bel(Mig  to  ap- 
pellee ;  and  as  appellants  had  caused  it  to  be  taken  from  his  posses- 
sion, without  right,  it  was  proper  to  render  the  alternative  judg- 
ment for  the  mill  if  to  be  had,  and  if  not,  for  its  value.  Wherefore 
the  judgment  is  affirmed. 

D.  S.  Homshell,  for  appellants. 
W.  IV.  Cleary,  for  appellee. 


E.  A.  Lynn  v.  J.  S.  Lynn. 

LimitationB — ^Release  from  Execution — Injunction— Pleading. 

Where  no  execution  has  been  issued  on  a  Judgment  for  more  than 
seven  years,  under  the  provisions  of  Rev.  Stat.,  chap.  97,  %  12,  no  execu- 
tion may  lawfully  issue. 

Pleading. 

Where  a  defendant  to  an  action  for  injunction  against  the  issuance 
of  an  execution  relies  upon  the  non-intercourse  proclamation  of  the 
President  of  the  United  States,  dated  August  16, 1861,  as  an  excuse  for 
his  failure  to  have  execution,  he  must  show  clearly  that  he  was  a 
resident  of  a  state  in  rebellion  at  the  time  the  proclamation  was  is- 
sued.   A  pleading  is  to  be  taken  most  strongly  against  the  pleader. 

Injunction. 

Injunction  will  be  Issued  to  prevent  execution  on  a  Judgment  stand- 
ing without  execution  for  more  than  seven  years,  in  the  absence  of  a 
valid  excuse  for  failure  to  have  an  execution  during  such  time. 

APPEAL  PROM  UNION  CIRCUIT  COURT. 

September  23, 1874. 

Opinion  by  Judge  Cofer  : 

The  appellant  having  obtained  judgment  at  law  against  appellee 


E.  A.  Lynn  v,  J.  S.  Lynn.  71 

as  surety  for  Vaughn  on  May  15,  1862,  caused  execution  to  issue 
thereon,  which  was  returned  no  property  found.  No  other  execu- 
tion was  issued  until  February  26,  1872,  a  period  of  nine  years, 
nine  months  and  thirteen  days,  when  the  appellee  filed  his  petition 
in  equity  seeking  a  perpetual  injunction  of  the  judgment  on  the 
ground  that  he  had  been  released  by  the  failure  to  issue  execution 
for  a  period  of  more  than  seven  years.  Sec.  12,  Chap.  97,  Re- 
vised Statutes. 

To  this  petition  the  appellant  filed  answer,  alleging,  in  substance, 
that  he  removed  to,  and  became  a  citizen  of  and  resident  in  the  state 
of  Texas  during  the  year  i860,  or  1861,  and  had  resided  there  ever 
since ;  that  Texas  was  one  of  the  seceded  states  engaged  in  war  with 
the  United  States  during  the  late  Civil  War,  and  praying  that  the 
injunction  be  dissolved.  The  appellee  demurred  to  the  answer;  and 
the  demurrer  being  sustained,  and  appellant  failing  to  plead  further, 
the  injunction  was  made  perpetual,  and  this  appeal  is  prosecuted  to 
reverse  that  judgment. 

It  is  insisted  by  counsel  for  appellant  that  as  he  was  a  citizen  of 
and  resident  in  the  state  of  Texas,  and  that  state  was  engaged  in 
war  with  the  United  States,  while  this  state  adhered  to  the  cause 
of  the  United  States  during  the  war,  the  time  of  his  residence  in 
Texas,  up  to  the  close  of  the  war,  should  be  deducted  from  the  time 
that  elapsed  between  the  issuing  of  the  first  and  last  execution. 

We  do  not  think  the  answer  is  sufficient  to  raise  that  question. 
The  place  of  appellant's  residence  before  this  removal  to  Texas  is 
not  stated,  but  as  he  brought  his  suit  in  this  state,  and  recovered 
judgment  in  1862,  we  must  assume  that  his  residence  was  here  up 
to  the  time  of  his  removal  to  Texas.  He  says  he  removed  to  Texas 
in  i860,  or  in  1864.  But  the  precise  time  not  being  stated  we  must, 
in  obedience  to  the  rule  that  an  ambiguous  or  uncertain  plea  shall 
be  construed,  most  strongly  against  the  pleader,  assume  as  the  time 
of  his  removal  that  which  is  most  unfavorable  to  him. 

The  non-intercourse  proclamation  of  the  president  of  the  United 
States  was  issued  August  16,  1861,  forbidding  all  intercourse  be- 
tween the  states  adhering  to  the  government  of  the  United  States, 
and  the  states  in  rebellion,  of  which  latter,  Texas  was  one.  If  the 
appellant  voluntarily  left  the  state  of  Kentucky  after  the  date  of  this 
proclamation,  and  went  to  Texas,  he  cannot  now  set  up  that  ab- 
sense,  and  the  existence  of  the  war,  as  a  reason  why  the  statute  of 
limitations  should  not  run  against  him ;  and  as  he  has  failed  to  state 
at  what  time  he  went,  we  must  presume  he  went  after  August  16, 


72  Kentucky  Opinions. 

1861.    The  judgment  sustaining  the  demurrer  was  therefore  right. 
There  can  be  no  doubt  that  the  failure  to  cause  execution  to  issue 
on  the  judgment  for  a  period  of  seven  years,  discharged  appellee 
from  liability,  on  account  of  the  judgment  against  him  as  surety. 
Wherefore  the  judgment  is  affirmed, 

K.  Chapeze,  for  appelloftt. 
S.  C.  Hughes,  for  appellee. 


Mary  Porter  v.  R.  H.  Field. 


Married  Women — Subrogation. 

When  a  married  woman  is  not  liable  on  a  note  because  of  coverture, 
her  surety  on  such  a  note,  who  pays  the  same,  cannot  recover  from 
her.    Since  her  creditor  could  not  recover  from  her,  her  surety  cannot. 

APPEAL  PROM  BULLITT  CIRCUIT  COURT. 

September  23, 1874. 

Opinion  by  Judge  Lindsay  : 

At  the  time  Field  became  surety  on  the  note  to  Dawson,  Mrs. 
Porter  owned  no  property,  except  the  balance  due  on  the  Hoagland 
notes.  These  notes  Field  held  in  trust,  and  for  the  sole  use  of  said 
Mary  Porter,  to  be  paid  over  to  her  in  such  sums  as  she  might  re- 
quire. Her  individual  receipts  were  to  be  sufficient  to  relieve  Field 
of  the  trust  so  far  as  the  sums  so  paid  were  concerned.  It  is  evi- 
dent that  Mrs.  Porter  did  not  intend  to  change  this  separate  estate 
by  the  execution  of  the  note  to  Dawson.  But  if  she  did  there  was 
but  one  way  she  could  charge  it,  and  that  was  by  directing  Field  to 
pay  the  debt,  and  then  execute  to  him  her  individual  receipt  as  pro- 
vided for  in  the  deed  of  trust.  This  she  did  not  do.  It  results,  there- 
fore, that  Mrs.  Porter  was  not  personally  bound  to  Dawson,  because, 
being  a  fetne  covert,  she  could  not  bind  herself  by  the  execution  of 
the  note,  and  that  her  property  was  not  bound  to  Field  for  the  rea- 
sons already  given. 

Whatever  may  have  been  the  legal  effect  of  the  conveyance  by 
Field  to  Mrs.  Porter,  it  did  not  raise  a  personal  liability  upon  her 
part  for  a  debt  for  which  she  was  not  theretofore  bound,  nor  did 
it  relate  back  to  the  date  of  the  execution  of  the  note  to  Dawson, 
and  render  separate  estate  (or  the  proceeds  thereof),  converted  into 
general  estate  by  such  conveyance,  liable  to  him,  upon  the  ground 
that  the  horse  purchased  from  him  was  a  necessity. 


Thomas  Z.  Morrow  v.  Henry  R.  Clouch,  et  al.  73 

As  Dawson  could  not  have  asserted  a  claim  against  Mrs.  Porter's 
property,  Field  cannot,  under  the  doctrine  of  subrogation,  subject 
it  to  the  payment  of  his  claim.  He  occupies  no  better  attitude  than 
E>awson  did  before  Field  paid  the  debt.  But  further  than  this,  the 
testimony  conduces  to  show  that  Mrs.  Porter  had  no  special  use  for 
the  horse  bought  from  Dawson.  The  entire  estate  of  herself  and 
husband  did  not  much  exceed  one  thousand  dollars  in  value,  and 
they  then  owned  two  horses.  Judgment  reversed  and  cause  re- 
manded with  instructions  to  dismiss  appellee's  petition. 

As  Mrs.  Porter  does  not  prosecute  a  cross-appeal,  no  attention 
need  be  paid  to  the  dismissal  of  her  cross-action. 

A.  //.  Field,  for  appellant. 
R.  H.  Field,  for  appellee. 


Thomas  Z.  Morrow  v.  Henry  R.  Clouch,  et  al. 

Infants  u  Plaintiffa — ^Jurisdiction — ^Technical  Defense. 

Whether  infants  are  represented  by  statutory  guardians  or  not, 
where  an  action  is  brought  for  them  to  protect  their  estate  the  court 
has  jurisdiction  to  hear  and  determine  the  same. 

Technical  Defense. 

A  purely  technical  defense  will  not  be  allowed  to  prevent  infants 
from  being  deprived  of  their  rights. 

appeal  prom  PULASKI  CIRCUIT  COURT. 

September  23, 1874. 

Opinion  by  Judge  Pryor: 

It  is  immaterial  whether  the  appellees  were  represented  by  a  stat- 
utory guardian  or  not;  the  infants  were  parties,  plaintiffs,  in  the 
action  by  prochein  ami,  presenting  a  state  of  facts  that,  if  true,  not 
only  authorized  but  required  the  interposition  of  the  chancellor. 
Both  the  guardian,  Bachelor,  and  his  surety.  Morrow,  were  non- 
residents, and  the  estate  of  the  infants  liable  to  be  lost.  A  settle- 
ment was  made  by  Bachelor  showing  an  indebtedness  of  several 
hundred  dollars.  He  had  left  the  state  without  making  any  provi- 
sion for  its  payment,  with  the  consent,  upon  his  part,  that  Parker 
should  be  made  the  guardian;  and  it  is  now  too  late  for  him  to 
question  the  right  of  Parker  as  guardian  or  as  the  next  friend  of 
these  infants  to  have  their  small  estate  secured.   No  notice  of  this 


74  Kentucky  Opinions. 

intention  of  the  court  to  remove  him  was  necessary,  when  he  him- 
self had  consented  that  it  should  be  done^  and  that  Parker  should 
be  substituted  in  his  place.  The  attachment  was  levied  on  the  prop- 
erty of  the  surety,  and  we  think  in  the  mode  required  by  the  code 
by  leaving  the  order  of  attachment  with  the  occupant.  The  father 
of  the  two  young  ladies  living  in  the  property  was  the  renter  from 
Morrow,  and  had  the  actual  control,  and,  we  might. add,  the  pos- 
session at  the  time.  That  Morrow  was  a  practising  attorney  in  the 
court,  appointing  Bachelor  guardian  is  no  defense  to  the  action. 
He  voluntarily  uses  his  name  in  an  illegal  manner,  by  which  Bach- 
elor is  enabled  to  obtain  the  custody  of  these  children  and  their 
small  patrimony.  Their  money  is  used  by  a  firm  of  which  he  is  a 
member.  The  guardian  is  insolvent  or  refuses  to  account  to  the 
wards,  presenting  every  reason  why  the  chancellor  should  hold  the 
surety  responsible.  The  defense  offered  is  purely  technical  and  must 
be  disregarded  in  a  case  like  this.  Morrow  was  a  non-resident  when 
this  action  was  instituted  and  the  attachment  was  therefore  sus- 
tained. The  judgment  should  direct  the  time,  terms  and  place  of 
sale  as  well  as  the  mode  of  advertising.  This  has  not  been  done  and 
for  this  cause  alone  the  judgment  is  reversed  with  directions  to  en- 
ter a  judgment  directing  the  lot  to  be  sold  as  provided  in  Sec.  253, 
Civil  Code. 

The  commissioner  should  advertise  at  least  fifteen  days  before  sale 
at  the  court  house  door  and  three  other  public  places  in  the  vicinity 
of  the  lot,  unless  there  is  some  special  act  in  regard  to  such  adver- 
tisements applicable  to  the  county. 

R.  M.  and  W,  0.  Bradley,  Thomas  Z,  Morrow,  for  appellant. 
Denton  &  Curd,  A,  /.  and  D,  James,  for  appellees. 


John  W.  Hazelrigg,  et  al.,  v,  James  H.  McGuire. 

Contract  to  Rebuild  a  Mill — Rents — Condemnation  of  Mill  property  by 
the  State. 

Where  the  owners  of  mill  property  agree  that  a  third  person  may 
rebuild  and  repair  a  mill  and  reimburse  himself  out  of  the  rents  and 
use  of  the  mill,  and  after  It  is  rebuilt  the  state  condemns  It  and  takes 
It,  the  person  rebuilding  it  Is  entitled  to  participate  in  the  money  due 
from  the  state  on  account  of  such  condemnation. 

APPEAL,  FROM  MORGAN  CIRCUIT  COURT. 

September  24, 1874. 


John  W.  Hazelrigg,  et  al.,  v.  James  H.  McGuire.         75 

Opinion  by  Judge  Lindsay: 

The  proof  does  not  establish  a  contract  upon  the  part  of  Hazel- 
i*jgg>  and  Barber's  heirs  and  representatives  to  pay  McGuire  in 
money  for  the  erection  of  the  new  mill;  but  it  does  tend  very 
strongly  to  show  that  they  agreed  that  if  he  would  rebuild  the  mill 
he  might  hold,  use  and  control  it  until  he  was  repaid  the  expense 
incurred,  out  of  the  accruing  rents. 

There  can  be  no  doubt  that  Barber's  representatives  were  willing 
and  anxious  to  have  the  mill  built  on  this  condition ;  and  although 
Hazelrigg  absolutely  refused  to  advance  any  money,  and  insisted 
that  if  McGuire  built  the  mill  he  must  do  it  at  his  own  risk,  the 
circumstances  proven  all  show  that  he  approved  the  steps  taken  by 
McGuire,  advised  with  him  as  to  changes  made  in  the  new  mill,  and 
pointed  out  necessary  repairs.  It  is  not  to  be  presumed  that  a  sane 
man  would  build  an  expensive  structure  upon  the  lands  of  another 
without  some  arrangement  for  compensation.  The  proof  in  this  case 
justified  the  court  below  in  concluding  that  the  owners  of  the  realty 
accepted  McGuire's  proposition  to  look  to  the  use  of  the  mill  for 
compensation. 

The  idea  of  holding  McGuire  responsible  for  the  burning  of  the 
old  mill  is  evidently  an  afterthought,  and  the  proof  wholly  fails  to 
show  any  culpable  negligence  on  his  part. 

The  condemnation,  by  the  state,  of  the  mill  seat,  deprived  Mc- 
Guire of  the  opportunity  of  running  the  mill  until  the  rents  reim- 
bursed him  his  outlay.  It  in  effect  terminated  his  lease.  To  that 
extent  it  was  the  taking  for  public  use  of  his  property.  He  was  in- 
terested with  Hazelrigg  and  Barber's  heirs  in  the  property  to  the 
extent  of  his  unsatisfied  claim,  and  was  to  that  extent  entitled  to 
participation  with  them  in  the  amount  paid  for  the  water  power  by 
the  state.  The  attempt  to  distinguish  between  McGuire's  claim  upon 
the  mill  houses  and  the  water  power  is  too  finely  drawn  to  be  seri- 
ously regarded  in  a  court  of  equity. 

The  conflicting  accounts  between  the  parties,  growing  out  of  the 
side  issues  introduced,  seem  to  have  been  correctly  settled,  and  as 
the  sum  allowed  McGuire  is  not  too  great,  the  judgment  in  his 
favor  must  be  affirmed. 

John  W.  Hazelrigg,  for  appellants, 
J,  J,  W.  Rodman,  for  appellee. 


76  Kentucky  Opinions. 

Charles  Gardner  v.  J.  H.  Hays,  et  al. 

Survey  of  Land. 

Under  the  provisions  of  the  act  of  1815  (2  Morehead  &  Brown  1023) 
those  claiming  title  pursuant  to  a  survey  registered  within  a  year  will 
prevail  over  claimants  under  a  prior  survey  not  registered  for  years 
after  the  subsequent  survey  was  made. 

APPEAL  FROM  WARREN  CIRCUIT  COURT. 

September  24, 1874. 
Opinion  by  Judge  Pryor  : 

The  survey  of  Covington  was  made  in  the  year  1836,  and  was  not 
registered  until  November,  1858.  Hays'  survey  was  made  in  the 
year  1840,  and  registered  the  same  year,  the  patents  issuing  thereon 
in  June,  1841.  The  survey  made  by  Covington  was  long  prior  to 
that  by  virtue  of  which  appellees  claim,  and  by  the  9th  section  of 
the  act  of  181 5,  the  title,  when  perfected  by  grant,  relates  back  to 
the  date  of  the  survey.  If  this  9th  section  controlled  this  case  there 
could  be  no  doubt  of  the  appellant's  right  to  the  land.  But  by  the 
8th  section  of  the  same  act  every  certificate  of  survey,  together  with 
the  warrant,  must  be  lodged  in  the  register's  office  within  one  year 
from  the  date  of  making  the  survey,  and  if  this  is  not  done,  by  the 
provisions  of  Sec.  11,  same  act,  "the  title  conveyed  by  such  grants 
shall,  in  contest  with  other  claimants,  be  considered  valid  from  the 
date  of  the  registry  only."  The  claim  of  the  appellant  must  there- 
fore be  considered  as  inferior  to  that  of  the  appellees,  the  patent 
issuing  on  the  survey  under  which  the  latter  claims  in  the  year  1841, 
and  the  patent  exhibited  by  appellant  issuing  in  the  year  1859,  there 
being  no  registration  of  the  survey  until  1858.  The  court  does  not 
determine  that  the  patent  of  Covington  is  void,  but  that  it  is  prior 
in  date  to  that  of  Hays  and  must  yield  to  the  latter  by  reason  of  the 
expressed  provisions  of  the  nth  section  of  the  act  of  1815.  2  More- 
head  &  Brown  1023.  The  patent  to  Hays  calls  for  only  twenty  acres 
of  land,  but  the  boundary  embraced  by  it  includes  about  fifty  acres. 
This  of  itself  is  not  sufficient  to  invalidate  the  patent,  and  as  con- 
ceded by  counsel  for  appellant,  the  validity  of  a  patent  issued  in  ac- 
cordance with  the  statute  cannot  be  questioned  in  a  proceeding  like 
this.  The  fact  that  the  boundary  of  the  patent  includes  a  greater 
number  of  acres  than  that  mentioned  in  the  survey  will  not  author- 
ize this  court  to  pronounce  it  void.  The  facts  in  this  case  also  con- 


James  Trabue,  et  al.,  v,  Isa  G.  Grover  and  Parker.        yy 

duce  strongly  to  show  that  Covingfton  had  abandoned  his  claim ;  and 
if  not,  the  trial  of  the  appellee  is  superior  to  his. 
Judgment  afhrmed. 

/.  R.  Underwood,  for  appellant, 
J.  W.  Goin,  for  appellees. 


James  Trabue,  et  al.,  v.  Isa  G.  Grover  and  Parker. 

Attorneys — Collections  Not  Paid  Over — ^Agency. 

A  petition  against  attorneys  for  money  collected  by  them  and  "for 
the  further  reason  that  they  had  not  used  due  diligence  as  attorneys/' 
Is  not  sufficiently  specific  to  authorize  a  recovery  for  damages  on  ac- 
count of  negligence. 

Agency. 

Where  attorneys  receive  accounts  for  collection  and  place  them  in 
the  hands  of  another  to  collect,  such  other  person  becomes  the  agent 
of  such  attorneys;  and  if  he  collects  money  thereon  and  fails  to  pay 
it  over,  such  attorneys  become  liable  to  pay  the  same  to  the  owner. 

APPEAL  FROM  OWEN  CIRCUIT  COURT. 
September  24, 1874. 

Opinion  by  Judge  Lindsay  : 

Appellants  sued  appellees  for  moneys  collected  as  attorneys  at 
law.  The  concluding  paragraph  of  the  petition,  in  which  it  was 
stated  that  if  any  of  the  claims  placed  in  appellees'  hands  had  not 
been  collected  it  was  "for  the  reason  that  they  had  not  used  due 
diligence  as  attorneys,"  was  not  sufficiently  specific  to  authorize  a 
recovery  for  damages  accruing  on  account  of  culpable  negligence 
in  that  regard ;  and  it  was  in  effect  an  admission  that  some  portion 
of  the  claims  had  not  been  collected.  Under  their  pleadings,  there- 
fore, appellants  could  only  recover  for  moneys  actually  collected, 
and  not,  upon  that  basis,  for  the  full  amount  of  the  claims  placed 
in  appellees'  hands.  The  judgment  in  effect  determines  that  appel- 
lees collected  no  greater  amount  than  by  their  answer  they  in  terms 
admit  they  had  collected. 

This  was  error.  The  execution  book  shows  that  the  sheriff  col- 
lected the  debt  of  $152  against  Stephens,  and  the  debt  of  $78  against 
Smith.  The  deputy  sheriff,  who  was  put  upon  the  witness  stand  by 
appellees,  swore  that  he  had  paid  the  money  collected  on  these  judg- 


78  Kentucky  Opinions. 

ments  over  to  someone,  and  that  the  payments  were  not  made  to 
any  of  the  appellants.  Parker  admits  that  he  collected  some  amount 
from  this  deputy  but  does  not  recollect  the  amotmt.  This  proofs 
coupled  with  the  fact  that  appellees  have  taken  no  steps  to  coerce 
the  money  out  of  the  sheriff's  hands,  was  sufficient  to  authorize  the 
court  to  charge  them  with  the  amount  of  said  two  debts.  Parker 
says  that  he  placed  the  debt  against  Robertson  in  the  hands  of 
T.  N.  Lindsay,  an  attorney  of  Franklin  county.  The  proof  is  clear 
and  conclusive  that  this  debt  was  paid  in  full  to  Lindsay,  who  was 
Parker's  agent.  No  attempt  is  made  by  appellees  to  show  what 
Lindsay  did  with  the  money.  The  presumption  that  it  was  paid  over 
by  him  to  one  of  them  is  so  strong  that  a  court  is  compelled  to  act 
upon  it.  But  if  it  were  not,  as  Lindsay  was  their  agent,  a  payment 
to  him  will  be  pleaded  as  a  payment  to  them.  The  testimony  fails 
to  establish  the  collection  of  any  other  claims,  but  appellees  must 
be  charged  with  the  amounts  admitted  by  them,  and  also  with  the 
debts  against  Stephens,  Smith  and  Robertson's  estate.  There  is  no 
denial  of  appellees'  claim  for  fees;  and  besides,  it  is  supported  by 
proof.  It  should  be  allowed  them  as  a  credit  against  the  additional 
amounts  herein  directed  to  be  charged  against  them.  Judgment  re- 
versed and  cause  remanded  for  a  judgment  conformable  to  this 
opinion. 

5*.  F.  J.  Trabue,  for  appellants. 
A.  P.  Grover,  for  appellees. 


Charles  A.  Dimmit  v.  Charles  M.  Fleming,  et  al. 

Bill  of  Exceptions— Partition — Ho  Report  Made. 

Where  a  pleading  Is  rejected  and  the  pleader  falls  to  make  such 
pleading  part  of  the  record  by  bill  of  exceptions  or  otherwise,  no 
question  is  presented  to  the  court. 

Partition — ^No  Report — ^Abandonment. 

Where  a  partition  suit  is  brought  and  commissioners  appointed  to 
partition  land,  and  no  report  is  made  by  them  for  eight  years,  and  the 
owners  did  not  take  possession  of  lands  said  to  have  been  given  them 
therein,  but  treated  the  land  as  undivided  and  bought  and  sold  inter- 
ests therein  as  undivided,  such  partition  is  held  to  have  been  aban- 
doned, and  a  new  partition  may  be  had. 

APPEAL  FROM  MASON  CIRCUIT  COURT. 

September  25,  1874. 


Charles  A.  Dimmit  v.  Charles  M.  Fleming,  et  al.        79 

Opinion  by  Judge  Lindsay  : 

•  The  court  rejected  the  answer  of  appellant,  and  he  failed  to  make 
the  rejected  paper  part  of  the  record,  by  bill  of  exceptions  or  other- 
wise. We  cannot,  therefore,  act  upon  the  assumption  that  the  paper 
copied  in  the  record  is  the  answer  offered  to  be  filed.  Hence  a  dis- 
cussion of  this  branch  of  the  case  is  needless.  Young,  Mc- 
Dowell &  Co.  V.  Bennett,  et  at,,  7  Bush  474.  We  can 
perceive  no  good  purpose  that  would  have  been  accomplished  by 
consolidating  this  with  the  action  of  Robert  P.  Dimmit  v,  Charles 
E.  Dimmit,  et  al.  The  effect  of  this  proceeding  is  merely  to  carry 
into  execution  the  judgment  for  partition  rendered  in  the  old  suit 
of  Dimmit  v.  Dimmit.  It  is  true  the  details  of  the  last  judgment 
are  not  exactly  in  accordance,  but  the  changes  were  rendered 
proper,  and  possibly  necessary,  by  changes  in  the  situation  and  cir- 
cumstances of  those  owning  interests  in  the  land.  It  is  manifest 
that  the  partition  made  by  the  commissioners  under  the  first  judg- 
ment could  not  have  been  perfected.  It  was  made  in  1858,  nine 
years  before  the  institution  of  this  action.  The  report  of  the  com- 
missioners was  never  filed  in  court.  The  paper  itself  is  lost.  There 
are  no  marks  or  traces  left  of  the  boundaries  established  in  1858,  if 
indeed  any  were  established;  and  the  surviving  commissioners 
swear  that,  at  this  late  day,  to  divide  the  land  so  as  to  even  approx- 
imate the  partition  then  made,  would  not  be  sanctioned  by  the  con- 
firmation of  the  court.  It  was  not  accepted  or  acted  upon  by  the 
parties  in  interest.  It  is  not  in  proof  that  any  of  them  entered  upon 
and  enclosed,  or  in  any  way  possessed  himself  or  herself  of  the 
identical  parcel  to  which  he  or  she  would  have  been  entitled  under 
it.  Appellant  certainly  did  not  approve  or  ratify  the  partition.  He 
has  purchased  several  of  the  interests  of  his  brothers  and  sisters, 
and  in  each  and  every  instance  has  accepted  conveyances  in  which 
the  estate  purchased  is  described  as  an  undivided  interest,  and  all 
these  purchases  have  been  made  subject  to  the  attempted  partition. 
It  is  a  well  established  fact  that  the  old  suit,  and  all  the  proceed- 
ings under  it,  were  long  since  abandoned  by  all  the  parties  in  inter- 
est, and  hence  its  consolidation  with  these  actions  would  have 
tended  to  protract  the  litigation.  The  testimony  as  to  the  fairness 
and  equality  of  the  last  partition  is  conflicting,  but  upon  a  careful 
analysis  it  seems  to  us  that  it  preponderates  in  favor  of  the  com- 
missioners' action,  and  we  do  not  feel  authorized  to  disturb  the 
judgment  of  the  court  merely  because  the  different  parcels  were 
not  located  to  suit  each  of  the  parties  in  interest.    It  is  notorious 


8o  Kentucky  Opinions. 

that  this  cannot  often  be  done,  and  in  this  case  the  substantial  rights 
of  appellant  have  not  been  disregarded.  There  is  no  sufficient  proof 
of  a  secret  understanding  between  Pearce  and  Mrs.  Poytz  as  to 
who  is  to  be  the  ultimate  owner  of  some  of  the  parcels  allotted  to 
Mrs.  Poytz ;  but  if  there  were,  we  do  not  see  that  it  would  aflFect  the 
equality  of  the  allotment.  The  failure  of  one  of  the  commissioners 
to  be  sworn  was  more  than  compensated  by  the  opportunity  afforded 
appellant  to  cross-examine  him,  when  put  upon  the  witness  stand. 
Judgment  afhrmed, 

H.  Taylor,  Thomas  /.  Throop,  for  appellant. 
E.  C  Phister,  for  appellees. 


Robert  Haywood  v.  Commonwealth. 

Criminal  Law — Indictment — Instructions. 

An  indictment  for  assault  and  battery  with  intent  to  kill  Is  sufficient 
when  it  is  substantially  In  the  language  of  the  statute. 

Instructions. 

An  instruction  is  held  erroneous  where  the  court  charged  the  jury 
that  "If  the  Jury  are  satisfied  from  the  evidence,  to  the  exclusion  of 
all  reasonable  doubt,  that  the  accused  *  •  •  did  stab  Lewis  Greg- 
ory with  a  knife  with  the  intention  at  the  time  of  such  stabbing  to 
kill  the  said  Gregory,  and  that  not  in  the  necessary  self-defense  of  the 
accused,  then  such  stabbing  is  willful  and  malicious,  and  the  jury 
will  find  the  accused  guilty  of  willful  and  malicious  stabbing  and  fix 
his  punishment  by  confinement  in  the  penitentiary  so  that  it  be  not 
less  than  one,  nor  more  than  five  years."  It  was  held  that  to  make 
this  charge  good  it  should  have  been  qualified  by  adding  after  the 
words  "not  in  the  necessary  defense  of  the  accused"  the  words  "nor 
in  sudden  heat  and  passion.' 


ft 


APPEAL  FROM  CARTER  CIRCUIT  COURT. 
September  26,  1874. 

Opinion  by  Judge  Peters  : 

Robert  Haywood  was  indicted  in  the  Carter  Circuit  Court  for 
having  "unlawfully,  wilfully  and  maliciously  stabbed"  Lewis  Greg- 
ory with  intent  to  kill  him,  was  found  guilty  by  the  jury  which 
tried  him,  and  sentenced  to  one  year's  confinement  in  the  peniten- 
tiary ;  and  his  motion  for  a  new  trial  having  been  overruled,  he  has 
appealed  to  this  court. 


Robert  Haywckm)  v.  Commonwealth.  8i 

It  is  insisted  by  his  attorney  that  the  indictment  is  insufficient. 
It  charges  that  the  offense  was  committed  as  follows:  "The  said 
Robert  Haywood,  on  October  13,  1873,  in  the  county  and  circuit 
aforesaid,  did  unlawfully,  wilfully  and  maliciously  cut,  thrust  and 
stab  Lewis  Gregory  with  a  knife,  with  the  intent  to  kill  said  Greg- 
ory, from  which  wounds  said  Gregory  lingered,  and  lingering  died 
not,  etc." 

This  indictment  was  found  under  Sec.  2,  Art.  6,  Chap.  28,  R.  S. ; 
and  the  offense  is  described,  substantially,  in  the  language  of  the 
statute:  that  if  appellant  did  the  stabbing  wilfully  and  maliciously 
he  incurred  the  penalty  of  the  statute,  and  the  indictment  must 
therefore  be  regarded  as  sufficient. 

It  is  next  insisted  that  instruction  No.  i,  given  on  motion  of  the 
attorney  for  appellee,  is  erroneous  and  prejudicial  to  appellant, 
which  motion  is  in  the  following  language:  "If  the  jury  are  satis- 
fied from  the  evidence,  to  the  exclusion  of  all  reasonable  doubt,  that 
the  accused,  in  Carter  county,  and  before  the  finding  of  the  indict- 
ment, did  stab  Lewis  Gregory  with  a  knife  with  the  intention,  at 
the  time  of  such  stabbing,  to  kill  the  said  Gregory,  and  that  not 
in  the  necessary  self-defense  of  the  accused,  then  such  stabbing  is 
wilful  and  malicious,  and  the  jury  will  find  the  accused  guilty  of 
wilful  and  malicious  stabbing,  and  fix  his  punishment  by  confine- 
ment in  the  penitentiary  so  that  it  be  not  less  than  one,  nor  more 
than  five  years." 

The  parties  had  been  quarreling  in  the  house,  and  angry  words 
had  passed  between  them  there;  Gregory  had  passed  out  of  the 
house,  whether  voluntarily  or  having  been  pushed  out  by  appellant 
does  not  satisfactorily  appear;  but  there  is  evidence  conducing  to 
show  that  about  the  time  Gregory  was  stabbed  he  had  gotten  a 
brick  or  stone,  and  was  near  enough  to  appellant  to  strike  him 
with  it. 

If,  as  was  held  by  this  court  in  Rapp  v.  Commonwealth,  14  B. 
Mon.  494,  the  wounding  be  not  in  self-defense,  but  done  in  sudden 
heat  and  passion,  without  previous  malice,  it  is  not  a  felony  pun- 
ished by  the  section  referred  to,  but  is  a  misdemeanor  punished 
by  Sec.  i,  Art.  17,  Chap.  28,  R.  S. 

Looking  to  the  evidence  in  this  case,  and  in  view  of  the  fact  that 
the  accused  might  have  been  convicted  of  the  lesser  offense  under 
this  indictment,  said  instruction  should  have  been  qualified  by  add- 
ing after  the  words  "not  in  the  necessary  self-defense  of  the  accused" 
the  following  words :  "nor  in  sudden  heat  and  passion,"  and  thereby 


82  Kentucky  Opinions. 

offered  to  the  jury  the  opportunity  of  giving  to  the  evidence  or 
statement  of  facts  contained  in  appellant's  affidavit,  and  which  was 
admitted  as  evidence,  such  weight  as  they  might  consider  it  de- 
served. 

Instruction  No.  2,  as  asked  for  by  appellant,  was  properly  refused ; 
because  it  gave  undue  prominence  to  a  particular  portion  of  the 
evidence,  and  withdrew  the  attention  of  the  jury  from  other  portions 
equally  worthy  of  their  consideration. 

But  for  reasons  stated,  the  judgment  must  be  reversed  and  the 
cause  remanded  with  directions  to  award  a  new  trial  and  for  further 
proceedings  not  inconsistent  herewith. 

/.  R,  Bates,  for  appellant, 
John  Redman,  for  appellee. 


E.  Nahm  z/.  James  Aden. 

Malicious  Prosecution — ^Instructions — ^Argument. 

It  is  no  justification,  for  a  defendant  in  a  suit  for  malicious  prosecu- 
tion to  show  that  he  was  advised  by  officers  and  detectives  to  procure 
a  warrant  for  plaintiff's  arrest. 

Malicious  Prosecution. 

In  a  suit  for  malicious  prosecution,  if  the  defendant  in  procuring 
plaintiff's  arrest  acted  maliciously  and  without  probable  cause,  plain- 
tiff is  entitled  to  recover. 

Instructions. 

An  instruction  which  requires  the  Jury  to  find  for  the  plaintiff  in  a 
malicious  prosecution  cause  if  the  defendant  in  procuring  the  plain- 
tifTs  arrest  did  not  have  probable  cause  for  doing  fio,  is  erroneous, 
for  before  plaintiff  is  entitled  to  a  Judgment  he  must  show  that  his 
arrest  was  procured  maliciously  and  without  probable  cause. 

Time  of  Argument 

The  court  in  its  discretion  has  power  to  limit  the  time  that  shall  be 
given  for  argument  in  a  cause  tried  therein,  but  should  not  abuse 
such  discretion. 

APPEAL  FROM  WARREN  CIRCUIT  COURT. 

September  26,  1874. 

Opinion  by  Judge  Cofer  : 

While  the  first  and  second  instructions  asked  for  by  appellant 
do  not  seem  to  be  objected  to,  yet,  as  the  same  thing,  in  substance, 
is  embraced  in  the  eight  instructions  gfiven  at  his  instance,  we  do 
not  see  that  he  was  prejudiced  by  the  refusal  of  the  court  to  give 


E.  Nahm  v.  James  Aden.  83 

the  first  and  second.  The  court  was  asked  in  the  third  and  fiftli 
instructions  offered  by  the  appellant,  to  tell  the  jury,  in  substance, 
that  if  he  went  to  the  police  judge  who  issued  the  warrant,  and 
made  a  statement  of  the  facts  connected  with  the  loss  of  his  money, 
for  stealing  which  appellee  was  arrested,  and  the  judge  issued  the 
warrant  "on  his  own  discretion,"  they  ought  to  find  for  the  defend- 
ant ;  and  in  the  fourth  instruction  the  court  was  asked  to  say  that  if 
the  appellant  "laid  the  facts  of  the  robbery  of  his  store  before 
Hillman,  a  professional  detective  and  police  officer,  and  that  said 
Hillman  directed  defendant  to  get  the  warrant  and  controlled  the 
detention,  arrest  and  search,  they  must  find  for  the  defendant,  pro- 
vided they  further  believe  that  defendant  stated  to  said  Hillman  the 
facts  of  the  robbery  as  he  actually  knew  them  to  exist." 

Waiving  other  objections  to  these  instructions,  we  think  they 
were  properly  refused,  because  under  them  the  jury  would  have  been 
authorized  to  find  for  the  defendant,  although  they  may  have  be- 
lieved he  had  not  the  slightest  reason  for  believing  the  appellee  had 
been  guilty  of  the  crime  imputed  to  him,  and  may  also  have  be- 
lieved that  appellant  was  prompted  alone  by  malice  toward  him. 
The  appellant  cannot  excuse  himself  because  others  may  have  been 
as  regardless  of  appellee's  rights  as  he  has,  if  he  in  fact  acted  with- 
out probable  cause,  and  with  malice,  in  causing  the  warrant  to  issue 
and  the  arrest  to  be  made.  The  mistake  or  bad  faith  of  others, 
through  officers  and  "professional  detectives,"  cannot  defeat  the 
appellee's  right  to  redress,  if  he  has  been  maliciously  arrested  with- 
out probable  cause.  The  sixth  instruction  asked  by  appellant  was 
properly  refused.  The  jury  had  been  permitted  to  hear  the  evidence 
as  to  appellee's  character,  and  it  was  needless  to  tell  them  they 
might  consider  it;  and  it  would  have  been  error  to  tell  them  that 
if  he  was  of  bad  character,  it  should  mitigate  their  verdict. 
Whether  the  facts  affecting  appellee's  character  should  mitigate  the 
verdict  was  a  question  for  the  jury,  and  not  for  the  court. 

We  see  no  substantial  error  to  the  prejudice  of  appellant  in  any 
of  the  instructions  given  at  the  instance  of  appellee,  except  in  the 
ninth,  which,  as  copied  into  the  record,  reads  as  follows:  "The 
court  instructs  the  jury  that  if  they  believe  from  the  evidence  that 
the  defendant  caused  a  warrant  to  issue  against  the  plaintiff  on 
December  11,  1872,  and  said  Aden  was  arrested  and  held  deprived 
of  his  liberty  by  reason  of  said  arrest,  and  that  said  warrant  was 
procured  without  probable  cause,  they  must  find  for  the  plaintiff  in 
any  sum  not  exceeding  $5,000." 


84  Kentucky  Opinions. 

This  instruction  required  the  jury  to  find  for  the  plaintifF  upon 
proof  of  want  of  probable  cause,  and  was,  therefore,  erroneous,  and 
may  have  misled  the  jury,  although  the  law  on  this  point  was  cor- 
rectly laid  down  in  the  succeeding  instruction.  To  authorize  a 
recovery  in  such  a  case  as  this  there  must  be  both  malice  and  want 
of  probable  cause.  The  court,  at  the  instance  of  appellant,  defined 
"probable  cause,'*  and  we  see  no  substantial  objection  to  that  in- 
struction. But  whether  it  be  right  or  not,  it  was  given  as  asked  and 
appellant  cannot  complain  of  it.  We  cannot  determine  upon  any- 
thing in  this  record  that  the  court  abused  a  sound  discretion  in 
limiting  the  time  to  be  occupied  in  arguing  the  case  to  the  jury.  The 
court  must  of  necessity  have  a  very  wide  discretion  in  such  matters. 
It  may  often  be  absolutely  necessary  to  limit  the  time  for  argument, 
and  while  this  power  should  be  cautiously  exercised  with  a  view  to 
the  importance  of  the  cause  and  the  volume  of  the  evidence  and 
instructions  and  the  state  of  the  docket,  the  existence  of  the  power 
cannot  be  doubted. 

For  the  error  in  giving  the  instruction  numbered  9,  the  judgment 
is  reversed  and  the  cause  remanded  with  directions  to  award  ap- 
pellant a  new  trial,  and  for  further  proceedings  not  inconsistent 
with  this  opinion. 

Wright  &  McElroy,  J.  A,  Mitchell,  for  appellant, 
R,  Rodes,  for  appellee. 


Dennis  Allen  v.  Wallan  Smith. 

Real  Estate— Title  Bond — Occupancy. 

A  person  seeking  to  recover  real  estate  must  do  so,  if  at  all,  upon 
the  strength  of  his  own  title. 

Possession. 

Where  a  title  bond  was  issued  88  years  before  any  real  claim  is 
made  under  it,  and  where  the  holder  is  not  in  possession  and  has  not 
been,  his  claim  is  too  uncertain  to  recover  the  land  from  a  descendant 
of  the  owner  who  has  been  holding  the  land  adversely  to  all  the 
world  for  a  great  period  of  time. 

APPEAL  FROM  NELSON  CIRCUIT  COURT. 
September  26,  1874. 

Opinion  by  Judge  Pryor: 

It  is  not  pretended  that  the  appellee  is  invested  with  the  legal 


Samuel  Black,  et  al.,  v.  John  Walker,  et  al.  85 

title  to  the  land  in  controversy ;  and  his  equitable  right  is  based  alone 
upon  the  bond  for  title  executed  by  the  patentee,  William  Allen,  to 
Owings,  in  the  year  1780,  upon  which  the  legal  title  could  not  be 
obtained  at  this  late  day,  if  the  heirs  of  Allen  were  before  the 
court.  Nearly  a  century  has  elapsed  since  its  execution,  and  the 
only  actual  possession  of  any  part  of  this  land  ever  held  by  the 
appellee  or  those  under  whom  he  claims,  was  about  forty  years  prior 
to  the  institution  of  this  action ;  and  from  the  evidence  it  is  doubt- 
ful  whether  this  possession  was  that  of  the  appellee  and  those  under 
whom  he  claims,  or  the  possession  of  those  claiming  under  David 
Allen.  This  possession  was  only  for  a  short  period,  as  when  Allen 
left  the  cabin  or  premises  they  seem  to  have  been  occupied  as 
much  by  the  one  party  as  the  other.  In  fact,  there  has  been  no 
entry  or  occupancy  of  this  land  by  the  appellee,  his  assignors  or 
tenants,  for  near  half  a  century;  and  as  before  stated,  the  proof 
makes  it  doubtful  whether  this  occupancy  was  under  appellee's 
claim  or  under  those  hostile  to  it.  John  Allen,  a  grandson  of  David 
Allen,  erected  a  house  on  this  land  and  lived  in  it.  His  claim  was 
hostile  to  appellee. 

Tlie  title  exhibited  is  worthless;  and  the  chancellor  is  asked  to 
turn  one  out  of  possession  for  another  demanding  it,  who  has 
neither  the  right  of  possession  nor  any  greater  or  better  title.  The 
<q)pellant,  it  is  true,  relies  on  his  possession  alone  for  his  title;  but 
this  possession  is  superior  to  the  claim  of  one  who  has  neither  the 
possession  nor  the  right  of  possession,  and  is  in  no  condition,  either 
in  a  court  of  law  or  equity,  to  invest  himself  with  title.  The  ap- 
pellee must  also  recover  upon  his  own  title,  although  his  adversary 
may  exhibit  no  evidence  of  title.  This  bond  for  title  88  years  old 
could  give  no  right  of  entry  to  the  appellee  even  against  the  original 
patentee  or  his  heirs,  and  creates  no  equitable  right  as  against  those 
hostile  to  the  claim  under  it.  The  judgment  is  reversed  and  cause 
remanded  with  directions  to  dismiss  the  appellee's  petition. 

N.  R,  Grigsby,  for  appellant. 
Muir  &  Wickliffe,  for  appellee. 


Samuel  Black,  et  al.,  v.  John  Walker,  et  al. 


Cities— Public  Improvements— Power — Defense. 

Cities,  in  conformity  with  their  charters,  have  power  to  cause  alleys 
and  streets  to  be  improved  either  upon  petition  or  without  it. 


86  Kentucky  Opinions. 

Public  Improvements. 

Ab  alley  is  a  public  highway. 

Defense. 

It  is  no  defense  to  a  suit  brought  by  a  contractor  to  recover  assess- 
ments for  improvements  made,  that  the  real  estate  assessed  had  been 
assessed  for  other  public  improvements. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

k 
1 

September  26,  1874. 

Opinion  by  Judge  Pryor: 

There  is  no  doubt  but  what  the  alley  improved  is  a  public  alley, 
diid  if  the  improvement  made  is  authorized  by  the  city  charter, 
and  its  provisions  complied  with,  there  is  no  reason  why  the  prop- 
erty-owners should  not  be  responsible  for  the  costs.  That  the  city 
council  failed  to  improve  to  the  extent  asked  for  by  the  petitioners 
is  no  reason  why  they  should  be  relieved  from  the  tax ;  the  council 
had  the  power  to  order  the  improvement  without  any  petition,  and 
having  done  so  in  the  manner  provided  by  the  charter,  the  tax 
should  be  enforced.  The  contract  was  made  and  performed  by  the 
appellants  in  strict  compliance  with  the  law,  and  no  reason  appears 
for  withholding  from  them  their  money.  The  rule  of  the  charter 
is  that  the  costs  shall  be  charged  to  the  quarter-square  binding  on 
the  improvement,  13th  and  17th  streets,  designated  by  some  as 
alleys  and  others  as  streets ;  if  streets,  there  is  no  difficulty  in  mak- 
ing the  assessment  as  provided  by  the  charter  and  ordinance.  The 
assessment  as  made  in  this  case  is  against  the  property  fronting  or 
binding  on  the  improvement,  as  provided  by  the  old  charter.  The 
ordinance  directing  the  mode  of  taxation  must  be  complied  with. 
Where  the  apportionment  is  improperly  made,  it  is  the  duty  of  the 
court  to  correct  it.  Sec.  12,  city  charter,  provides  that  the  general 
council,  of  the  courts  in  which  the  suits  are  pending,  shall  make  all 
corrections,  to  do  justice  to  the  parties  concerned.  If  the  ordinance 
has  been  complied  with  in  every  other  respect,  as  has  been  done  in 
this  case,  and  the  property-owner  is  made  to  pay  too  much  by  the 
apportionment,  the  chancellor  should  make  him  pay  only  the  amount 
for  which  he  is  liable.  That  the  property  included  in  the  quarter- 
square  has  been  taxed  to  make  other  improvements  is  no  reason 
why  it  should  be  exempt  from  taxation  in  this  case.  In  this  case 
the  city  had  the  power  to  make  the  improvement.  The  contractors 
have  performed  their  contract  and  must  have  their  money.     The 


Mabion  Buhbridge,  et  al.^  v.  H.  W.  Varnon's  Ex'r.       87 

judgment  is  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

Alex  G.  Booth,  for  appellants. 

J.  T.  White,  t.  L.  Burnett,  for  appellees. 


Marion  Burbridge,  et  al.,  v.  H.  W.  Varnon's  Ex'r. 

Committee  of  Lunatic — Bond  of  Committee. 

Where  a  person  la  senring  as  committee  of  a  lunatic  and  while  bo 
serving  petitions  the  court  for  and  receives  authority  to  sell  property 
of  such  lunatic  In  connection  with  two  other  persons,  the  three  being 
styled  commissioners,  and  the  sale  is  made  and  the  money  collected 
by  the  committee  from  the  buyers  of  the  property  or  from  the  other 
members  of  the  commission,  the  committee  is  liable  to  account  for 
such  money. 

Bond  of  Comnuttee. 

A  person  becoming  surety  for  a  committee  of  a  lunatic,  where  such 
committee,  in  connection  with  two  other  persons  styled  commis8i<mer8» 
to  sell  personal  property  of  such  lunatic,  sells  such  property  and  col- 
lects the  money  therefor,  is  liable  on  his  bond  whether  the  committee 
collects  the  money  or  falls  to  do  so,  when  it  was  his  duty  to  collect 
and  preserve  such  funds. 

appeal  from  SCOTT  CIRCUIT  COURT. 
September  26,  1874. 

Opinion  by  Judge  Lindsay  : 

In  November,  1846,  Marion  Burbridge  was,  by  the  verdict  of 
a  jury  and  the  judgment  of  the  Scott  Circuit  Court,  found  to  be  a 
lunatic,  and  Oscar  H.  Burbridge  was  appointed  her  committee, 
and  gave  bond  as  such  with  his  father,  Robert  Burbridge,  ^ 
surety. 

Marion  Burbridge  was  then  the  owner  of  a  large  estate  con- 
sisting of  land,  slaves  and  personalty,  the  income  from  which  seems 
to  have  been  more  than  sufficient  for  her  support.  On  March  i, 
1850,  the  legislature  passed  an  act  for  her  benefit,  which  authorized 
the  judge  of  the  Scottj  Circuit  Court  to  decree  a  sale  of  the  slaves 
of  the  said  Marion  Burbridge,  if,  upon  a  petition  filed  and  sworn 
to  by  O.  H.  Burbridge,  her  trustee,  and  upon  oral  and  other  proof 
it  shall  appear  to  the  interest  of  said  Marion  Burbridge  for  such 
sale  to  be  made ;  and  he  may  make  such  further  orders  and  decrees 
in  the  cause  as  may  seem  to  him  advisable  to  secure  properly  and 


88  Kentucky  Opinions. 

safely  the  proceeds  of  sale,  by  requiring  bond,  with  security,  from 
her  trustee  or  committee,  and  may  also  appoint,  if  necessary,  some 
other  person  to  act  as  trustee  in  place  of  Oscar  H.  Burbridge.  Sess. 
Acts  1849-50,  p.  226.  In  pursuance  of  this  act,  a  decree  was  ren- 
dered on  November  20,  1850,  directing  a  sale  of  the  slaves,  and  ap- 
pointing O.  H.  Burbridge,  Jesse  S.  Sinclair,  and  John  W.  Sinclair 
as  commissioners  to  make  the  sale.  They  sold  the  slaves  and  made 
report  thereof  to  the  August  term  of  the  court,  1851.  The  sale  was 
on  a  credit  of  two  years,  and  amounted  to  the  sum  of  $10,230.  The 
court,  in  the  order  of  sale,  reserved  full  power  over  this  cause,  the 
proceeds  of  sale,  and  the  disposition  thereof.  On  March  i,  1853, 
the  case  was  referred  to  the  master  commissioner,  to  settle  with 
Oscar  Burbridge  his  accounts  as  committee  of  Marion  Burbridge, 
and  report  the  same  to  court,  and  it  was  also  ordered  that  Oscar 
Burbridge  and  Jesse  S.  Sinclair  be  appointed  commissioners  to  col- 
lect the  sale  money  for  the  slaves,  and  loan  out  the  same,  on  good 
security  being  given.  The  commissioner,  Jesse  S.  Sinclair,  was  re- 
quired to  execute  bond  therein  for  the  faithful  performance  of  his 
duties.  On  the  day  after  this  order  was  made,  the  master  reported 
a  settlement  with  O.  H.  Burbridge,  which  showed  a  balance  in  his 
hands  at  that  date,  of  $564.76.  In  this  settlement,  no  account  was 
taken  of  the  proceeds  of  the  sale  of  the  slaves,  which,  however, 
had  not  then  been  collected.  No  other  order  seems  to  have  been 
made  in  the  case  until  May  29,  1861,  when  the  following  was 
entered :  "This  day  O.  H.  Burbridge,  in  response  to  the  rule  herein, 
appeared,  and  with  H.  W.  Varnon  as  his  surety,  executed  and 
acknowledged  his  bond,  which  is  approved;  and  it  is  ordered  that 
this  cause  be  referred  to  the  master  commissioner,  George  E. 
Prewett,  with  directions  to  state  and  settle  the  accounts  of  said 
O.  H.  Burbridge,  committee  of  said  Marion  Burbridge,  and  report 
to  court." 

On  May  19,  1862,  the  commissioner  reported  that  he  had  been 
unable  to  bring  the  committee  to  a  settlement.  On  May  20,  1865, 
a  rule  was  made  against  O.  H.  Burbridge  requiring  him  to  appear 
in  court  on  the  first  day  of  the  next  ensuing  term  of  the  court 
to  show  cause,  if  he  could,  why  he  should  not  be  removed  from 
his  office  of  committee.  Failing  to  appear  in  response  to  the 
rule  he  was  removed,  and  Jesse  S.  Sinclair  was  appointed  and 
gave  bond  and  qualified  as  connnittee  in  his  stead.  On  the  same 
day  the  commissioner  filed  a  report  in  which  he  again  reported  his 
inability  to  bring  O.  H.  Burbridge  to  settlement,  and  recommended 


Marion  Burbridge,  et  al.,  z/.  H.  W.  Varnon's  Ex'r.        89 

that  he  should  be  removed,  not  for  any  wilful  negligence  on  the 
part  of  the  committee,  but  from  the  fact  that  he  was  so  largely  en- 
gaged in  business  (and  now  in  a  distant  state),  that  it  was  impos- 
sible for  him  to  devote  proper  attention  to  this  matter. 

On  May  19,  1868,  this  suit  was  brought  by  Jesse  S.  Sinclair  for 
himself,  and  as  committee  of  Marion  Burbridge,  against  O.  H. 
Burbridge,  and  his  surety,  H.  W.  Varnon.  It  is  alleged  in  the  peti- 
tion, after  a  recital  of  the  more  important  of  the  foregoing  facts, 
that  the  sale  money  for  the  slaves  was  all  collected  by  O.  H.  Bur- 
bridge and  the  plaintiff,  Sinclair ;  that  no  settlement,  binding  upon 
all  concerned,  had  been  made  between  them,  but  that  a  settlement 
satisfactory  to  themselves  had  been  made ;  and  that  said  O.  H.  Bur- 
bridge, as  committee  as  aforesaid,  would  fall  in  debt  to  the  said 
Marion  Burbridge  about  $10,000;  that  on  May  28,  1861,  O.  H. 
Burbridge,  by  the  order  of  the  court,  executed  a  bond  as  committee 
of  Marion  Burbridge  with  H.  W.  Varnon  as  his  surety,  which  is 
also  here  filed,  and  which,  he  is  advised  binds  the  said  Varnon  for 
all  moneys  received  by  the  said  O.  H.  Burbridge,  as  committee 
aforesaid,  for  the  faithful  discharge  of  his  duty  as  committee,  and 
the  performance  of  all  orders  and  decrees  of  this  court  touching  the 
trust  in  his  hands;  that  Burbridge  is  insolvent,  and  the  amount  in 
his  hands  will  be  lost,  unless  Varnon  is  held  liable  for  it;  that 
various  unavailing  efforts  have  been  made  to  procure  a  settlement 
with  O.  H.  Burbridge ;  and  praying  for  a  settlement  of  the  accounts 
of  said  Burbridge  and  Jesse  S.  Sinclair  in  order  to  ascertain  how 
much  each  is  liable  for,  and  for  judgment  against  O.  H.  Burbridge 
and  his  surety,  H.  W.  Varnon,  for  whatever  sum  might  be  found 
due  from  Burbridge. 

In  his  answer,  Varnon  admits  that  it  is  probably  true  as  alleged, 
tliat  said  sale  money  was  all  collected  and  received  by  said  Bur- 
bridge and  Sinclair,  but  whatever  amount  came  into  the  hands  of 
said  Burbridge  was  received  and  collected  by  him,  as  commissioner, 
under  the  authority  of  the  decree  and  orders  made  in  the  proceed- 
ing for  a  sale  of  said  negroes,  and  not  under,  or  by  virtue  of  any 
power  or  authority  he  may  have  had  as  committee  of  said  Marion. 
He  states  that  all  the  money  and  estate  that  came  to  the  hands  of 
said  Burbridge,  as  committee  of  said  Marion,  has  long  since  been 
settled,  accounted  for  and  paid  over,  and  whatever  amount  may, 
upon  settlement,  be  found  owing  said  Marion,  he  will  owe  not  as 
committ^,  but  as  commissioner. 

He  also  states  that  O.  H.  Burbridge,  in  compliance  with  the  rule 


90  Kentucky  Opinions. 

before  adverted  to,  'Mid,  in  the  year  1861,  execute  an  additional 
bond  in  lieu  of  the  original  bond  executed  by  him  in  1846,  as  the 
committee  of  said  Marion ;  and  said  additional  bond,  stipulating,  in 
substance,  the  faithful  performance  of  said  Burbridge  of  his  duties 
as  committee  of  said  Marion,  was  executed  by  this  defendant  as  his 
surety."  He  refers  to  said  bond,  and  makes  it  part  of  this  answer, 
and  he  submits  the  question  of  its  effect,  construction  and  opera- 
tion, to  the  decision  of  the  court.  He  denies,  as  advised,  that  said 
bond  binds  him,  or  renders  him  in  any  way  liable  for  any  part  of 
the  proceeds  of  the  sale  of  said  negroes.  He  refers  to  all  the 
records  and  papers  of  all  the  various  suits,  motions  and  proceed- 
ings which  have  been  instituted  in  this  court,  relating  to  the  estate 
and  property  of  said  Marion  Burbridge,  and  makes  the  same  part 
of  this  answer,  and  he  admits  that  O.  H.  Burbridge  has  become  in- 
solvent. 

The  case  was  subsequently  referred  to  a  commissioner,  and  a 
report  was  made  showing  an  indebtedness  on  the  part  of  O.  H. 
Burbridge  on  account  of  money  received  by  him  for  sale  of  the 
slaves  under  the  decree  of  1850,  the  sum  of  $9,169.85,  and  that 
there  was  a  balance  in  his  hands,  received  from  other  sources,  of 
$456.20.  It  was  admitted  on  the  record  that  O.  H.  Burbridge  was 
solvent  in  1861,  when  the  bond  was  executed  with  Vamon  as 
surety.  Upon  this  state  of  fact  the  cause  was  heard  in  the  circuit 
court,  and  judgment  was  rendered  against  both  Burbridge  and 
Varnon  for  the  sum  of  $456.20  and  against  O.  H.  Burbridge  for  the 
sum  of  $9,169.85,  received  from  the  sale  of  slaves,  and  the  petition 
as  to  this  latter  sum  was  dismissed  so  far  as  Varnon  was  con- 
cerned. The  only  question  on  the  appeal  is  as  to  the  correctness  of 
the  judgment  discharging  Vamon  from  his  alleged  liability  for  the 
latter  sum.  On  a  former  hearing  in  this  court  the  judgment  was 
ajSirmed  on  the  ground  that  the  petition  was  defective,  because  it 
did  not  set  out  the  conditions  and  stipulations  of  the  bond  on  which 
appellee  was  surety  for  O.  H.  Burbridge;  but  upon  a  careful  re- 
examination of  the  petition  and  answer,  we  are  of  opinion  that  any 
defects  which  existed  in  the  petition  are  cured  by  the  answer,  in 
the  references  to  the  bond  made  therein  which  we  have  already 
quoted. 

It  is  insisted  for  appellant  that  the  committee,  O.  H.  Burbridge, 
must  be  taken  to  have  held  the  money  which  came  to  his  hands 
from  the  sale  of  the  slaves  under  the  decree  of  the  Scott  Circuit 
Court,  as  committee  of  Marion  Burbridge;  or  if  he  did  not,  then, 


Marion  Burbridge,  et  al.,  v,  H.  W.  Varnon's  Ex'r.        91 

as  he  was  both  complainant  in  the  proceedings  to  sell  the  slaves, 
and  committee  under  the  appointment  in  1846,  it  was  his  duty  to 
have  gotten  the  fund  into  his  hands  as  committee,  so  that  in  any 
event  he  and  his  surety  ought  to  be  held  liable.  On  the  other  hand 
it  is  contended  that,  as  Burbridge  was  appointed  a  commissioner, 
in  conjunction  with  Sinclair,  to  collect  the  money  and  loan  it  out, 
and  as  it  is  nowhere  shown  that  he  ever  held  it  as  committee,  his 
surety  is  not  liable.  The  bond  recites  that  Burbridge  had  been  re- 
quired by  the  court  to  execute  bond,  and  then  stipulates  that  O.  H. 
Burbridge,  as  committee  of  Marion  Burbridge,  shall  faithfully  dis- 
charge the  duties  of  his  station  as  committee  as  aforesaid,  perform 
all  orders  and  decrees  of  the  Scott  Circuit  Court  in  said  case,  and 
pay  all  money  that  may  come  to  his  hands  when  required  by  said 
court.  This  bond  was  executed  under  a  rule  to  give  bond,  which 
issued  in  the  case  in  which  a  sale  of  the  slaves  had  been  decreed, 
and  binds  the  committee  to  perform  the  orders  and  decrees  made  in 
that  case  and  to  pay  over  all  money  that  might  come  to  his  hands. 
The  bond  being  executed  in  that  case,  must  be  construed  in  the  light 
of  the  record ;  and  when  this  is  done  it  seems  to  us  clear,  not  only 
that  it  was  intended  to  secure  any  money  which  he  might  receive, 
but  that  it  amounted  to  a  recognition  by  the  court  of  his  right  and 
duty  to  hold  tlie  money  as  committee.  Counsel  for  appellee  are 
mistaken  in  supposing  that  the  committee  had  no  right,  as  such,  to 
the  money  arising  from  the  sale  of  the  slaves.  The  act  expressly 
recognizes  his  right  to  control  the  fund  just  as  he  could  other  estate 
of  the  lunatic.  It  is  true,  the  act  g^ves  the  court  power  to  make  all 
needed  orders  for  securing  the  fund,  but  the  mode  of  doing  so  is 
prescribed  by  the  act  itself.  The  court  was  not  vested  with  general 
power  to  secure  the  fund  as  to  it  might  seem  advisable,  but  the  au- 
thority is  to  make  orders  to  secure  the  fund  by  requiring  bond 
with  security  from  her  trustee  or  committee.  This  was  all  the 
power  the  act  gave  to  the  court  over  the  proceeds  of  the  sale ;  and 
that  the  intention  of  the  legislature  was  that  it  should  go  into  the 
hands  of  the  committee,  is  made  still  more  manifest  by  the  succeed- 
ing clause,  which  g^ves  the  court  power  to  appoint,  if  necessary, 
some  other  person  to  act  as  trustee,  in  the  place  of  said  Oscar  H. 
Burbridge,  the  word  trustee  being  used  in  the  act  as  synonymous 
with  committee.  So  long  as  O.  H.  Burbridge  remained  in  office 
as  committee,  the  act  contemplated  that  he  should  control  the  fund, 
subject  only  to  the  right  and  duty  of  the  court  to  require  surety  of 
him,  and,  if  necessary  to  secure  the  fund,  to  remove  him  and  ap- 


92  Kentucky  Opinions. 

point  another;  and  although  he  collected  the  mon)ey  originally 
under  the  order  of  the  court  which  styled  him  "commissioner," 
yet  he  would  have  been  responsible  for  it  on  his  former  bond  as 
committee. 

He  was  committee  when  the  money  came  to  his  hands,  and  as  he 
had  a  right  to  it  as  committee,  he  must  be  taken  to  have  so  held  it 
all  the  while.    He  was  solvent  when  the  bond  with  appellee  as  surety 
was  given,  and  must  be  presumed  then  to  have  held  the  money  in 
hand  or  to  have  loaned  it  out,  and  it  results  that  appellee  is  responsi- 
ble for  it.    But  if  we  are  mistaken  in  this,  and  he  is  to  be  taken  as 
.holding  up  to  this  time  as  commissioner,  the  execution  of  the  bond 
in  this  case  shows  that  both  the  court  and  the  committee  regarded 
him  as  having  a  right  to  it  as  committee;  for  if  he  had  not,  the 
bond  was  wholly  unnecessary  in  the  case  in  which  it  was  given,  for 
there  could  have  been  no  other  liability  to  secure  by  it.     He  had  a 
right  not  only  to  hold  the  money  he  had  himself  collected,  but  a 
clear  right  to  compel  Sinclair  to  pay  over  to  him  so  much  of  it  as 
he  had  collected,  subject  alone  to  the  power  and  duty  of  the  court 
to  require  sufficient  bond.     It  was  then  his  plain  duty  to  get  the 
fund  into  his  hands  as  committee,  and  as  he  was  then  solvent  it 
must  be  presumed  he  did  so.     But  even  conceding  that  he  did  not 
do  so,  it  was  certainly  his  duty  to  do  it,  and  he  is  responsible  on  his 
bond  for  neglecting  to  do  so.     It  would  hardly  be  contended,  if  a 
third  person  had  held  this  fund,  and  had  been  in  a  failing  condition, 
and  the  committee  had  been  aware  of  that  fact  and  had  failed  to 
make  any  effort  to  secure  the  fund,  that  he  would  not  have  been 
liable  for  it&  loss.     The  fact  that  the  committee  was  himself  the 
debtor   (if  he  be  treated  as  holding  the  money  as  commissioner) 
can  make  no  difference ;  it  was  as  much  his  duty  in  a  faithful  dis- 
charge of  the  obligations  of  the  trust  to  secure  what  he  himself 
owed,  as  it  would  have  been  to  secure  it  if  a  stranger  had  been  the 
debtor.     He  had  instituted  the  proceedings  and  procured  the  sale, 
and  ought  to  have  looked  to  the  security  of  the  fund.     The  court 
was  proceeding  against  him  and  would,  no  doubt,  of  its  own  motion, 
have  compelled  him,  while  he  was  yet  solvent,  to  bring  the  money 
into  court,  and  was  actually  endeavoring  to  do  so  by  repeated  efforts 
to  get  a  settlement.    In  this  state  of  the  case,  appellee,  by  executing 
the  bond  in  question,  put  it  in  the  power  of  the  recusant  committee 
to  hold  on  to  the  money,  and  must  have  understood  that  such 
would  be  the  effect  of  his  bond.    He  knew  he  was  giving  a  bond 
in  the  case  in  which  a  decree  had  been  rendered  for  the  sale  of  the 


L.  F.  BOULWARE,  ET  AL.,  V,  J.  H.  LoUDEN,  ET  AL.  93 

slaves;  there  was  no  other  fund  in  that  case  to  be  secured  by  the 
bond,  and  there  is  not  even  a  hardship  in  now  holding  him  liable. 
Wherefore  the  judgment  dismissing  appellants'  petition  as  to  the 
sum  of  $9,169.85  is  rezKrsed  and  the  cause  is  remanded  with  di- 
rections to  render  judgment  against  the  appellee,  H.  W.  Vamon, 
for  that  sum,  with  interest  thereon  at  the  rate  of  6  per  cent,  per 
annum  from  the  first  day  of  January,  1868,  until  paid. 

/.  F.  Robinson,  IV.  S.  Dartiaby,  for  appellants. 
Breckinridge,  Buckner,  for  appellee. 


L.  F.  BoULWARE,  ET  AL.,  V.  J.  H.  LoUDEN,  ET  AL. 

WiLus  Henderson  v.  S.  F.  Boulware. 
Eli  Louden,  et  al.,  v.  S.  F.  Boulware,  et  al. 

Attachment— Priority— Pleading  Conclusion. 

Where  plaintiff  begins  attachment  proceedings  against  a  defendant 
under  a  wrong  name  and  had  to  begin  over  again,  his  first  action  does 
not  give  him  priority  over  those  filing  attachment  proceedings  after 
his  first  suit  was  begun. 

Pleading  Conclusion. 

A  pleading  must  set  forth  facts,  and  no  issue  of  fact  is  raised 
where  conclusions  are  pleaded. 

APPEAL  FROM  OLDHAM  CIRCUIT  COURT. 

September  28,  1874. 

Opinion  by  Judge  Lindsay  : 

Henderson's  attachment  was  six  days  the  junior  of  that  of  Boul- 
ware, and  even  if  it  be  true  that  the  necessary  amendment  to  their 
affidavits  affected  the  question  of  priority,  the  fact  that  Henderson 
had  been  proceeding  against  James  S.  instead  of  James  H.  Louden 
up  to  the  time  of  the  correction  made  by  these  amended  affidavits, 
and  that  he  had  then  to  commence  his  action  de  novo,  prevents  him 
from  claiming  anything  on  this  account.  Hence,  on  Henderson's 
appeal  against  Boulware  the  judgment  is  affirmed. 

The  proof  shows  beyond  all  doubt  that  before  Mrs.  Louden  con- 
sented for  her  husband  to  receive  her  estate,  he  agreed  to  invest  at 
least  a  portion  of  it  in  the  fifty-four  acre  tract  of  land  that  the 
court  refused  to  subject  to  the  payment  of  her  husband's  debts. 


94  Kentucky  Opinions. 

She  fails,  however,  to  show  that  the  agreement  related  to  the  re- 
mainder of  the  attached  land. 

On  the  appeal  of  Boulware  and  Henderson  v.  Mrs.  Louden  and 
her  children,  and  on  their  cross-appeal  against  Boulware  and  Hen- 
derson, the  judgment  is  also  affirmed.  The  petition  of  Eli  Louden 
shows  no  right  of  action  in  him.  He  says  that  "JsLmts  Louden  be- 
ing indebted  to  the  government  of  the  United  States  for  internal 

revenue  tax,  in  the  sum  of  $ ,  that  the  land  in  controversy  was 

seized  and  sold,"  etc.  The  averment  that  James  Louden  was  so 
indebted  is  but  the  statement  of  a  conclusion  of  law.  He  should 
have  stated  the  facts  from  which  the  deduction  was  drawn.  If  Lou- 
den pursued  any  calling  or  vocation,  or  owned  any  property  specifi- 
cally taxed  by  the  general  government,  these  facts  should  have 
been  stated ;  as  it  is,  no  issue  of  fact  could  be  raised  in  the  most  ma- 
terial averment  in  his  petition.  His  claim  was  properly  disregarded. 
On  his  appeal  the  judgment  is  also  affirmed. 

John  Rodman,  William  Correll,  George  C,  Drane,  for  appellants. 
J.  M.  Harlan,  for  appellees. 


Mary  Owens,  et  al.,  v.  Simon  Holt,  et  al. 

Trust — Suit  to  Declare  Trust  in  Land — Innocent  Purchasers. 

An  agreement  between  a  husband  and  wife,  by  which  the  wife  fur- 
nishes her  husband  money  to  invest  in  land  for  her  and  her  children, 
placed  of  record  in  one  county  is  not  notice  to  persons  in  another 
county. 

Innocent  Purchasers. 

Where  a  husband  takes  the  money  of  his  wife,  which  he  has  agreed 
by  written  agreement  of  record  in  one  county  he  will  invest  in  real 
estate  for  her,  and  buys  land  in  another  county,  taking  the  title  in 
his  own  name,  and  afterwards  sells  the  land  to  persons  having  no 
notice  of  the  trust  created  by  the  agreement,  such  purchasers  take 
title  freed  from  such  trust;  and  their  title  cannot  be  defeated  in  a 
suit  to  declare  the  trust  brought  by  the  wife  after  the  death  of  her 
husband  more  than  twenty  years  after  such  purchases  are  made. 

APPEAL.  FROM  BALJJOID  CIRCUIT  COURT. 

September  29,  1874. 

Opinion  by  Judge  Pryor: 

The  agreement  upon  the  part  of  Thomas  H.  Owens,  the  husband, 
to  hold  or  invest  the  proceeds  of  the  wife's  land  in  trust  for  her  and 


Mary  Owens,  et  al.,  v,  Simon  Holt,  et  al.  95 

her  children,  was  made  on  January  17,  in  the  year  1850,  and  re- 
corded in  the  clerk's  office  of  the  Henry  County  Court.  One  of  the 
covenants  contained  in  this  instrument  was  "that  Owens,  the  hus- 
band and  trustee,  would,  before  any  one  of  the  children  of  Mary 
Owens  (his  wife),  arrived  at  the  age  of  twenty-one  years,  purchase 
lands  in  trust  for  the  sole  use  and  benefit  of  his  wife  and  her  chil- 
dren," etc.  He  received  of  the  purchase  money  thirteen  hundred 
dollars  on  the  day  or  about  the  time  the  deed  was  executed.  The 
parties  were  then  living  or  about  to  make  their  permanent  home  in 
the  county  of  Ballard.  Owens,  with  a  view  of  investing  this  money, 
as  the  proof  conduces  to  show,  had  already  purchased  a  tract  of  land 
in  the  latter  county  from  James  Husbands,  and  taken  from  him  his 
bond  for  title.  This  purchase,  so  far  as  appears  from  the  bond,  was 
in  his  own  right,  and  for  the  reason,  if  no  other,  that  the  trust  had 
not,  at  that  time,  been  created.  He  took  possession  of  this  land, 
and  held  and  occupied  it  as  his  own  from  the  date  of  the  purchase 
in  1849  u^til  August,  1858,  when  he  sold  the  land,  or  the  quarter 
portion  of  it,  to  one  Bland,  and  executed  to  him  his  bond  for  title, 
at  the  same  time  delivering  to  him  the  possession.  In  October,  1869, 
Bland  sold  the  land  to  Holt,  the  appellee,  executing  a  bond  for  title, 
and  placed  him  in  possession. 

On  April  8,  187 1,  the  present  action  in  equity  was  instituted  by 
Mrs.  Owens  and  her  children,  the  father  being  dead,  against  Holt 
and  Husbands,  alleging  that  the  proceeds  of  the  land  held  by  Mrs. 
Owens  in  trust,  had  been  executed  by  him  in  the  land  purchased 
of  Husbands,  and  that  Husbands  had  never  executed  a  conveyance, 
and  asking  the  chancellor  to  enforce  the  trust  by  compelling  Hus- 
bands to  convey  to  them,  and  to  require  Holt,  the  purchaser  from 
Bland,  to  restore  the  possession.  It  appears  from  the  proof  in  the 
case  that  Owens,  although  he  received  the  money  from  the  sale,  of 
his  wife's  land  in  the  year  1850,  and  had  made  the  purchase  of 
Husbands  the  year  previous  with  the  intention  of  making  the  invest- 
ment, failed  to  do  so ;  and  Husbands  was  compelled  to  institute  his 
action  at  law  upon  the  notes,  and  afterwards  resorted  to  a  court  of 
equity  to  enforce  his  lien.  Owens,  in  the  meantime,  had  been  en- 
gaged in  purchasing  and  speculating  in  stock,  and  had,  prior  to  his 
death,  purchased  and  sold  real  estate  of  much  more  value  than  the 
amount  of  money  held  by  him  in  trust.  This  trust  fund,  however, 
constituted  the  basis  of  his  operations,  and  was  the  only  capital 
he  had  for  purposes  of  speculation.  His  efforts  seem  to  have  been 
to  increase  his  portion  by  the  use  of  this  money,  expecting,  no 


96  Kentucky  Opinions. 

doubt,  that  he  would  realize  enough  in  a  few  years  to  make  the  in- 
vestment as  required  by  the  deed  of  1850.  His  payments  to  Hus- 
bands on  this  land  were  made  some  of  them  in  pork,  others  in 
money,  all,  no  doubt,  realized  from  the  use  of  this  trust  fund.  He 
was  in  the  possession  of  this  large  tract  of  land;  and  this,  con- 
nected with  the  thirteen  hundred  dollars,  gave  him  a  credit  that 
enabled  him  not  only  to  speculate  in  live  stock,  but  to  make  pur- 
chases and  sales  of  other  lands.  His  intentions,  however,  to  make 
the  investment  in  this  land,  and  the  fact  that  he  had  no  other  means, 
if  conceded,  with  which  to  make  the  payments,  cannot  affect  the 
rights  of  innocent  purchasers. 

It  had  been  twenty-one  years  from  the  date  of  the  deed  creating 
the  trust  until  this  action  was  instituted  claiming  that  the  money 
was  invested  in  the  land.  No  record  evidence  of  its  existence  was 
to  be  found  in  the  county  of  Ballard ;  and  what  written  evidence  of 
title  was  to  be  found  in  that  county  consisted  of  Owen's  bond  for 
title  in  his  own  name,  the  suit  at  law  for  the  purchase  money ;  the 
action  in  equity  to  enforce  the  lien  pending  against  Owens  and  no 
one  else,  the  occupancy  and  claim  of  Owens  in  his  own  right,  the 
sale  by  him  to  Bland  in  his  undivided  character,  the  sale  and  con- 
veyance in  the  same  way,  the  claim  of  his  widow  for  dower  in 
this  same  land,  and  its  allotment  after  his  death.  All  these  facts, 
connected  with  the  entire  absence  of  any  notice  to  purchasers,  or 
even  assertion  of  an  equity  on  the  part  of  the  appellants  until  after 
the  death  of  Owens,  establish  as  pure  and  complete  an  equity  in 
Owens  to  those  who  were  making  an  inquiry  in  regard  to  the  title 
as  could  well  exist. 

This  appellee  had  paid  his  money  for  the  land.  His  vendee  has 
also  made  his  payments  and  that  without  notice  of  the  trust.  The 
wife's  equity,  as  against  the  husband  or  his  estate,  still  exists;  but 
so  far  as  the  equitable  right  to  the  land  is  concerned,  her  claim  must 
yield  to  that  of  the  appellee.  As  a  general  rule,  in. a  contest  between 
equities  the  older  equity  prevails,  but  this  doctrine  cannot  apply  in  a 
case  like  this  for  the  reason  that  the  equity  of  the  purchaser  is  su- 
perior to  that  of  the  wife,  and  in  deciding  between  equities  the  court 
must  be  controlled  by  equitable  principles.  The  wife  might  have  an 
equity  as  against  the  husband's  estate  equal  or  superior  to  that  of 
a  creditor,  but  has  no  equity  to  enforce  a  trust  that,  in  its  effect, 
exists  only  by  parol,  and  has  been  sleeping  for  twenty  years,  against 
an  innocent  purchaser  who  is  in  possession  and  has  paid  his  money. 
The  testimony  of  Mrs.  Owens  to  the  effect  that  she  intended  to 


T.  C.  BiDWELL,  ET  AL.,  V.  JaMES  FaCKLER.  97 

claim  the  land,  is  denied  by  Holt ;  but  if  true,  could  not  effect  the 
claim  of  Bland  or  a  purchaser  from  him.  Owens,  by  his  covenant, 
was  not  required  to  invest  the  trust  fund  when  received;  but  was 
to  purchase  land  and  have  it  conveyed  in  trust  before  the  children 
or  any  of  them  arrived  at  age.  The  parties  to  the  deed  evidently 
contemplated  that  Owens  would  use  the  money,  and  looked  to  his 
covenant  to  make  the  purchase  at  any  time  prior  to  the  oldest  child 
arriving  at  age.  This  accounts  for  the  failure  to  make  the  invest- 
ment at  the  time  the  money  was  received,  and  although  it  might 
have  been  his  intention  to  do  so,  he  seems  to  have  abandoned  it, 
entertaining,  as  he  no  doubt  did,  the  belief,  that  an  investment  at 
any  time  within  the  period  allowed  by  the  covenant,  would  be  a 
compliance  with  its  provisions.  The  judgment  of  the  court  below 
dismissing  the  petition  must  be  affirmed. 

E.  Q.  Bullock,  L.  D.  Husband,  for  appellants, 
/.  and  /.  W.  Rodman,  for  appellees. 


T.  C.  BiDWELL,  ET  AL.,  V.  JaMES  FaCKLER. 


Statute  of  Frauds— Specific  Performance— Description  in  Deed. 

No  action  at  law  or  suit  in  equity  can  be  maintained  to  enforce  a 
verbal  contract  for  the  sale  of  real  estate,  and  hence  the  court  cannot 
decree  specific  performance  of  such  a  contract. 

Description  in  Deed. 

Where  a  description  in  a  deed  is  so  vague  and  uncertain  that  the 
vendee  cannot  learn  from  it  what  land  he  takes  under  it,  the  deed  is 
void  for  uncertainty. 

APPEAL  FROM  BRBCTKBNRIDGE  CIRCUif  COURT. 

September  29,  1874. 

Opinion  by  Judge  Peters  : 

This  court  has  held  that  the  effect  of  the  statute  against  frauds 
and  perjuries  is  that  no  action  at  law,  or  suit  in  equity  can  be  sup- 
ported to  enforce  a  verbal  contract  for  the  sale  of  land.  The  stat- 
ute, therefore,  withholds  the  remedy  for  an  enforcement  of  the  ver- 
bal contract  for  the  sale  of  the  land ;  the  appellants  cannot  enforce 
a  specific  execution  thereof,  there  being  no  consideration  passing  to 
appellee. 

But  independent  of  the  statute,  there  are  other  reasons  why  the 
demurrer  should  have  been  sustained. 

7 


98  Kentucky  Opinions. 

The  deed  tendered  in  this  case  by  appellants  was  not  accepted; 
they  fail  in  their  petition  to  allege  that  they  have  a  clear  legal  title 
to  the  land,  and  are  able  to  make  such  a  title  to  appellee.  They 
do  not  allege  that  Porter  had  purchased  the  interest  in  the  land  from 
Mrs.  Duvall,  who,  according  to  the  recitals  in  the  deed,  is  one  of 
the  children  and  heirs  of  John  McFarlan,  deceased,  and  entitled  as 
such  to  one  share  in  the  land.  It  is  merely  alleged  that  Porter  is 
entitled  to  two  shares,  and  that  Tompkins  and  wife  had  conveyed 
one  share  to  him,  but  how  or  from  whom  he  derived  title  for  the 
other  share  is  not  alleged. 

Besides  description  of  the  land  as  set  forth  in  the  deed  is  too 
vague  and  uncertain.  The  vendee  cannot  learn  from  the  deed  what 
land  he  takes  under  it,  for  the  deed  recites  that  the  land  must  there- 
after be  surveyed  to  ascertain  the  boundary  of  the  land,  and  its 
quantity,  and  no  specific  description  is  set  forth  in  the  petition. 

One  of  the  persons  named  as  grantor  is  alleged  to  be  a  minor, 
and  no  indemnity  or  assurance  is  given  that  he  will  ratify  the  con- 
tract after  he  arrives  at  full  age;  and  although  he  is  named  as  a 
grantor  in  the  body  of  the  deed,  he  has  not  signed  or  acknowl- 
edged it. 

The  petition  was  therefore  insufficient  and  the  demurrer  to  the 
same  properly  sustained.    Wherefore  the  judgment  is  afHrmed, 

Sweeney  &  Stuart,  J,  JV,  Kincheloe,  for  appellants. 
Williams,  Haszvell,  for  appellee. 


Abe  Buford  v.  Taylor  &  Faulkner. 

Suit  on  Account — ^Joint  Suit  on  Separate  Causes  of  Action. 

Where  a  contract  to  sell  lumber  to  a  firm  is  made  and  partly  exe- 
cuted by  the  delivery  of  lumber,  the  seller  refusing  to  make  any  fur- 
ther deliveries  on  such  contract,  but  he  did  deliver  the  same  on  an 
agreement  of  a  third  person,  the  owner  of  the  building  which  was  be- 
ing built  with  such  lumber,  a  suit  cannot  be  maintained  on  account 
against  said  firm  and  the  owner  of  such  building. 

Action  on  Joint  Promise. 

No  recovery  can  be  had  upon  proof  of  a  several  promise  by  one  of 
the  defendants  in  a  Joint  action  against  all. 

APPEAL  FROM  FRANKLIN  CIRCUIT  COURT. 

September  30, 1874. 

Opinion  by  Judge  Cofer  : 

Appellees  ccmtracted  to  sell  a  bill  of  lumber  to  Buckley,  to  be 


Abe  Buford  v.  Taylor  &  Faulkner.  99 

used  by  him  in  the  erection  of  a  house  for  appellant,  which  Buckley 
had  undertaken  to  build.  The  contract  with  appellant  bound  Buck- 
ley to  furnish  all  necessary  material  for  the  house,  and  appellees 
contracted  with  Buckley,  and  looked  to  him  alone  to  pay  for  the 
limiber  sold  him,  but  it  afterwards  became  known  that  Wakefield, 
without  the  knowledge  of  either  appellant  or  appellees,  was  inter- 
ested with  Buckley  in  building  the  house  for  appellant,  and  was 
liable  to  appellees  as  a  partner  of  Buckley.  After  appellees  had 
furnished  a  small  part  of  the  lumber  they  had  contracted  to  deliver, 
Buckley  became  insolvent  and  made  an  assignment ;  and  appellees, 
being  unwilling  to  deliver  the  residue  upon  his  credit,  or  upon  his 
or  Wakefield's  credit,  if  they  then  knew  he  was  a  partner  of  Buck- 
ley, notified  Buckley  and  appellant  that  they  would  refuse  to  deliver 
any  more  lumber  under  the  contract  with  Buckley  unless  appellant 
would  undertake  to  order  and  pay  for  it. 

Asserting  that  appellant  had,  when  notified  by  them  that  they 
refused  to  deliver  any  more  lumber  unless  he  would  pay  for  it, 
agreed  with  their  agent,  Roberts,  that  he  would  do  so,  appellees 
brought  this  action  at  law  as  upon  the  joint  promise  of  appellant, 
Buckley  and  Wakefield.  The  account  sued  on  is  made  out  against 
all  the  defendants,  and  includes  the  lumber  delivered  before  and 
after  appellant's  alleged  promise  to  pay.  Buckley  and  Wakefield, 
admitting  their  liability,  failed  to  plead,  but  appellant  answered, 
denying  that  he,  as  an  individual,  or  co-jointly  with  his  co-de- 
fendants, or  either  of  them,  had  either  purchased  or  received  of 
appellees  any  of  the  articles  named  in  the  account,  and  by  an 
amended  answer  he  set  up  and  relied  upon  the  statutes  of  frauds 
and  perjuries,  in  bar  of  the  action  against  him. 

Upon  a  trial  of  the  issues  thus  formed,  the  jury  found  a  joint 
verdict  against  Buckley,  Wakefield  and  appellant,  for  $1,939,  ^^r 
which  judgment  was  rendered,  and  appellant's  motion  for  a  new 
trial  having  been  overruled,  he  prosecutes  this  appeal  to  reverse 
that  judgment. 

It  was  decided  by  this  court  in  Gopom  v.  Badgett,  6  Bush  97,  that 
"there  is  no  provision  in  the  code  abrogating  the  well  established 
principle  that  the  plaintiff  in  an  action  can  only  recover  upon  proof 
of  the  cause  of  action  alleged  in  his  pleadings;"  and  it  was  ac- 
cordingly held  that  in  an  action  upon  a  joint  promise,  no  recovery 
could  be  had  upon  proof  of  a  several  promise  by  one  of  the  de- 
fendants. Such  discrepancy  between  the  contract  alleged  and  the 
contract  proven,  was  not  held  to  be  a  variance  between  the  allega- 


loo  Kentucky  Opinions. 

tion  and  the  proof,  and  therefore  immaterial  unless  it  had  mislead 
the  adverse  party  to  his  prejudice,  although  it  was  a  failure  of 
proof  fatal  to  the  action. 

The  contract  sued  on  in  this  case  is  alleged  to  have  been  made 
by  appellant,  jointly  with  Buckley  and  Wakefield,  and  the  contract 
proven  as  to  appellant  is  the  separate  and  subsequent  promise  by 
him  to  pay  for  the  lumber  already  sold  to  his  co-defendants.  There 
was  no  new  contract  on  the  part  of  Buckley  and  Wakefield,  and 
what  appellant  agreed  to  do  was  that  he  would  pay  what  they  were 
already  bound  for,  and  was  therefore  separate  and  distinct  from 
their  undertaking.  It  was,  therefore,  error  to  instruct  the  jury,  as 
was  done,  that  if  they  should  believe  from  the  evidence  that  the 
appellant  alone,  or  jointly  with  others,  ordered  the  Itmiber  sued  for, 
and  that  the  credit  was  given  to  him,  and  the  lumber  was  shipped 
to  him,  or  to  others  for  his  use,  they  should  find  for  the  plaintiffs. 

We  do  not  deem  it  necessary  now  to  decide  whether  the  action 
could  have  been  maintained  against  appellant  alone  if  it  had  been 
brought  before  his  separate  promise  to  pay  for  the  lumber. 

For  the  error  indicated  the  judgment  is  reversed  as  to  appellant, 
Buford,  and  for  a  new  trial  and  further  proceedings  not  inconsistent 
with  this  opinion. 

Turner  &  Thornton,  for  appellant. 
John  L.  Scott,  for  appellees. 


Paducah  Gulf  Railroad  Co.  v.  B.  E.  Adams. 

Waiver  of  Right  of  Change  of  Venue— Joining  of  Causes  of  Action. 

A  party  may  waive  his  right  to  a  change  of  venue,  by  voluntarily 
consenting  that  no  change  of  venue  would  be  applied  for,  in  order  to 
obtain  a  continuance. 

Joining  of  Causes. 

Claims  arising  from  injury  to  person  and  property  may  be  united 

in  one  action. 

APPEAL  FROM  GRAVES  CIRCUIT  COURT. 
September  30,  1874. 

Opinion  by  Judge  Pryor  : 

Tlie  right  to  a  change  of  venue  had  been  waived  by  reason  of  the 
continuance  of  the  cause  at  a  former  term,  and  we  are  not  disposed 


Thomas  A.  Morgan  v,  Henry  Wood.  ioi 

to  adjudge  that  the  court  had  no  discretion  on  the  subject,  after  the 
appellant  had  voluntarily  consented  that  no  change  of  venue  would 
be  applied  for,  in  order  to  obtain  a  continuance.  The  plaintiff  had 
the  right,  at  any  time  prior  to  a  decision  thereon,  to  withdraw  his 
motion  for  a  new  trial.  This  could  not  have  prejudiced  the  appel- 
lant, as  it  not  only  had  the  opportunity,  but  did,  in  fact,  make  a 
similar  motion  by  its  counsel,  the  overruling  of  which  by  the  court 
below  is  now  complained  of.  Sec.  in,  Code  of  Practice,  expressly 
provides  that  claims  arising  from  injury  to  person  and  property 
may  be  united  in  the  same  action. 
There  was  no  errot*  in  the  instructions  given.  Judgment  affirmed, 

W,  W.  Tice,  for  appellant. 
R.  K.  Williams,  for  appellee. 


Thomas  A.  Morgan  v.  Henry  Woctt>. 

Pleadings— Demurrer — Continuance — Instructions. 

A  demurrer  to  the  reply,  going  back  to  the  answer  in  which  the  set 
off  is  relied  upon,  raises  the  question  of  the  sufficiency  of  the  answer. 

Continuance. 

A  continuance  on  the  ground  of  surprise  on  the  part  of  defendant 
will  not  be  allowed  where  such  defendant  has  not  been  diligent  in 
procuring  his  evidence. 

Instructions. 

An  Instruction  to  the  effect  that  the  plaintiff  is  entitled  to  recover 
as  a  part  of  his  damages  for  loss  of  time  and  loss  of  employment,  is 
erroneous  when  there  is  no  averment  in  his  complaint  of  any  such  loss. 

APPEAL  FROM  THE  DAVIESS  CIRCUIT  COURT. 

September  30, 1874. 

Opinion  by  Judge  Pryor  : 

The  demurrer  to  the  reply  going  back  to  the  answer  in  which  the 
set-off  is  relied  on,  raises  the  question  as  to  the  sufficiency  of  this 
pleading.  The  allegation  in  the  answer  is  "that  the  plaintiff  is  in- 
debted to  the  defendant  in  the  sum  of  $697,  for  money  advanced  or 
paid  for  his  plaintiff's  use,"  etc.,  omitting  the  averment  that  the 
money  was  paid  at  the  instance  and  request  of  the  plaintiff. 

The  reply  traverses  the  allegation  that  the  money  was  paid  for 
the  use  of  the  plaintiff,  except  the  amounts  admitted.   This  should 


I02  Kentucky  Opinions. 

have  been  held  to  be  as  good  pleading  as  that  of  the  original  answer. 
The  amended  reply,  however,  cures  the  defect  in  the  original  an- 
swer by  denying  that  certain  items  of  money  paid,  were  paid  at  the 
special  instance  and  request  of  the  plaintiff,  thus  making  the  issue 
on  this  branch  of  the  case,  upon  which  the  appellee  could,  by  proper 
proof,  be  made  responsible.  This  amended  reply  is  also  evasive,  and 
fails  to  deny  the  allegations  of  indebtedness,  etc.  One  of  the  items 
is  that  the  plaintiff  received  from  the  defendant  i,ooo  pounds  of 
bacon.  The  reply  denies  that  he  got  i,ooo  pounds,  but  claims  that 
he  did  get  500  pounds;  whether  he  got  more  than  500  pounds  is 
not  stated.  He  may  have  received  1,000  pounds,  whilst  he  is  only 
admitting  500.  If  the  pleading,  after  denying  the  delivery  of  1,000 
pounds,  had  said  that  plaintiff  received  500  pounds,  and  no  more, 
this  would  have  been  sufficient,  and  as  to  the  items  for  money,  had 
denied  that  the  defendant  paid  to  A  for  the  plaintiff,  or  his  use  at 
his,  the  plaintiff's,  request,  the  sum  of  forty-three  dollars  or  any 
part  thereof,  the  pleading  would  have  been  good. 

The  court  acted  properly  in  refusing  to  continue  the  cause  by 
reason  of  the  alleged  surprise  on  the  part  of  the  defendant,  as  it 
was  the  latter's  duty  to  have  had  his  witnesses  present  when  the 
case  was  called  for  trial  upon  all  questions  affecting  the  issue  that 
might  be  made  during  its  progress.  He  had,  in  fact,  taken  deposi- 
tions sustaining  his  own  character  and  assailing  that  of  the  plain- 
tiff, and  must  have  known  after  making  the  attack  upon  plaintiff's 
character,  that  his  own  would  be  impeached  if  it  could  be  done, 
and  besides,  the  depositions  were  produced  and  read  upon  the  hear- 
ing that  constituted  his  grounds  for  a  continuance.  He  was  also 
living  in  the  country  when  the  case  was  tried,  and  he  could  have 
called  on  his  neighbors  or  those  knowing  him  to  testify  by  the 
exercise  of  any  sort  of  diligence.  The  instructions  were  proper, 
except  that  part  of  instruction  No.  i  in  which  the  jury  were  told 
that  the  plaintiff  was  entitled  to  recover  such  damages  as  may  have 
resulted  to  the  plaintiff  from  having  to  leave  his  home,  and  loss  of 
employment,  etc.  There  is  certainly  no  allegation  of  any  loss  of 
employment  made  in  the  petition  and  no  proof  of  any  such  damage 
upon  the  trial.  It  was  therefore  error  on  the  part  of  the  court  in  in- 
structing the  jury  as  to  the  right  of  recovery  by  reason  of  any  such 
loss.  It  may  be  that  the  evidence  in  the  cause  as  to  the  value  of  the 
crop  authorized  the  jury  to  render  the  verdict  they  did ;  still  there 
was  conflicting  proof  as  to  the  value  of  the  crop,  and  the  verdict 
might  have  been  for  a  less  amount  or  more ;  still  this  court  is  im- 


R.  W.  WooLLEY  V.  Leslie  Combs.  103 

able  to  determine  in  what  manner  the  jury  considered  the  loss  of 
employment,  and  its  effect  upon  them  when  estimating  the  damages 
the  plaintiff  had  sustained.  If  considered  by  the  jury  at  all,  and  v/c 
must  perceive  it  was,  as  the  court  here  instructed  them  in  regard  to 
it,  it  was  error,  and  for  this  reason  the  judgment  of  the  court  be- 
low is  reversed  and  cause  remanded  with  directions  to  award  to 
the  defendant  a  new  trial,  and  to  allow  either  party  to  amend  their 
pleadings,  and  for  further  proceedings  consistent  with  this  opinion. 

L.  P.  Little,  James  H.  McHenry,  for  appellant. 
Owen  &  Ellis,  for  appellee. 


R.  W.  WooLLEY  V.  Leslie  Combs. 

Railroad  Company — Stock  Subscription — Sale  of  Franchises. 

When  a  railroad  company  is  out  of  business  because  of  the  sale  of 
its  franchises,  it  still  exists  for  the  purpose  of  collecting  what  is  due 
it  and  paying  its  debts. 

Liability  of  Stock  Subscribers. 

Stock  subscribers  are  only  liable  on  their  subscriptions  for  stock  in 
a  railroad  company  to  raise  funds  to  pay  debts,  where  such  company 
has  gone  out  of  business;  and  there  must  be  debts  by  the  company 
before  there  is  any  liability. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

September  30, 1874. 

Opinion  by  Judge  Lindsay  : 

It  appears  from  Woolley's  answer,  as  amended,  that  the  Lexing- 
ton and  Danville  Railroad,  with  all  its  appurtenances,  and  with  all 
the  rights  and  franchises  of  the  company,  was  sold  in  1858  under  a 
decree  of  the  Fayette  Circuit  Court,  rendered  in  the  case  of  Pumell 
&  Sizemore  against  said  corporation. 

This  sale  did  not  wholly  destroy  the  corporation.  It  still  had  an 
existence  so  far  as  was  necessary  to  enable  it  to  collect  its  debts  and 
pay  off  its  liabilities.  But  its  legal  existence  was  perpetuated  only 
for  the  benefit  of  its  unpaid  creditors,  and  for  the  purpose  of  set- 
tling the  relative  rights  of  its  stockholders.  It  had  the  right  to  com- 
pel the  payment  of  so  much  of  the  unpaid  subscriptions  for  capital 
stock  as  might  be  necessary  to  discharge  its  indebtedness,  but  no 
more. 


I04  Kentucky  Opinions. 

The  claim  against  WooUey  is  for  an  unpaid  subscription  for  stock. 
The  judgment  in  favor  of  Higgins  and  Gillis  did  not  change  its 
character.  After  judgment  he  could  not  have  resisted  their  right  to 
collect,  but  when  they  re-assigned  to  the  railroad  company,  it  held 
the  claim  just  as  it  held  other  claims  for  such  subscriptions,  except 
that  it  had  been  reduced  to  judgment.  Combs,  as  the  creditor  of 
the  defunct  corporation,  has  no  right  to  collect  a  greater  amount 
from  Woolley  than  the  corporation  could  compel  him  to  pay. 

If  he  was  sued  by  the  company  he  might  answer  that  it  had  been 
practically  destroyed  by  the  sale  of  its  road  franchises,  privileges, 
etc.,  and  that  it  owed  no  debts,  and  hence  that  he  was  under  no  obli- 
gation to  pay.  Combs's  right  to  sue  Woolley  depends  upon  whether 
or  not  the  company  owes  him.  If  it  does  not,  he  can  assert  no  claim 
against  Woolley,  no  matter  how  much  the  latter  may  be  indebted  to 
the  company.  Combs  sets  up  the  judgment  in  favor  of  Grinstead, 
obtained  in  1865,  afterwards  assigned  to  him  as  the  evidence  of  the 
railroad  company's  indebtedness  to  him. 

Woolley  pleads  facts  heretofore  stated  as  amounting  to  the  de- 
struction of  the  corporation,  for  all  except  the  purposes  mentioned, 
denies  that  it  owes  Combs  anything,  and  charges  that  the  judgment 
upon  which  his  action  is  founded  was  obtained  by  fraud.  He  says 
that  Combs  was  the  last  president  of  the  railroad  company ;  that  he 
was  in  office  in  1858,  when  its  road  franchises,  etc.,  were  sold ;  that 
since  that  time  there  has  been  no  meeting  of  the  directory;  that 
Combs,  holding  a  pretended  claim  against  the  company,  transferred 
it  to  Grinstead  with  the  understanding  and  agreement  that  he 
(Grinstead)  was  to  sue  on  it,  and  have  process  executed  on  Combs 
as  the  president  of  the  company,  who  was  to  let  judgment  go 
by  default;  and  that  then  Grinstead  was  to  assign  the  judgment 
to  Combs ;  and  he  avers,  in  terms,  that  this  agreement  was  carried 
out  and  the  judgment  obtained  in  1865,  seven  years  after  the  col- 
lapse of  the  company.  If  these  averments  be  true,  and  they  are 
admitted  by  the  demurrers,  then  it  is  plain  the  judgment  was  ob- 
tained by  fraud  and  that  it  is  utterly  void.  Appellee  insists  that  the 
company  does  not  complain,  and  that  Woolley,  its  debtor,  has  no 
right  to  make  any  such  defense.  Ordinarily  this  would  be  true,  but 
as  the  company  is  practically  out  of  existence,  with  no  right  to  col- 
lect from  its  stockholders  unpaid  subscriptions  for  stock,  except  to 
pay  its  own  debts  (no  matter  what  may  be  the  relative  rights  of 
the  stockholders  by  each  other),  the  real  issue  in  the  case  is  whether 
it  is  indebted  to  Combs,  and  in  this  issue  Combs  and  Woolley  alone 


Commonwealth,  et  al.,  v,  G.  W.  Taylor,  et  al.  105 

are  interested.  If  the  company  owes  nothing,  then  WooUey  is  not 
bound  to  pay  any  one.  If  it  owes  Combs  then  he  must  pay  at  least 
enough  to  satisfy  his  claim,  if  he  owes  that  much.  In  such  a  state 
of  case,  if  Woolley  were  not  allowed  to  question  the  validity  of 
Combs's  judgment,  he  might  be  compelled  to  pay  a  debt  the  company 
did  not  owe,  when  he  was  under  no  legal  liability  to  the  company, 
or  to  any  one  else. 

It  therefore  necessarily  follows  that  the  judgment  sued  on  by 
Combs  does  not  conclude  him,  and  if  he  can  successfully  assail  that 
judgment.  Combs  must  fail  in  his  action,  unless  by  supplemental 
pleadings  he  brings  the  railroad  company  into  court,  and  establishes 
his  original  claim  against  it.  For  these  reasons  the  court  below 
erred  in  adjudging  Woolley's  answer,  as  amended,  insufficient. 
Judgment  reversed  and  cause  remanded  with  instructions  to  over- 
rule appellee's  demurrers,  and  for  further  proceedings  consistent 
with  this  opinion. 

Breckenridge,  Buckner,  for  appellant, 
W.  B.  &  George  B,  Kinkead,  for  appellee. 


Commonwealth,  et  al.,  v.  G.  W.  Taylor,  et  al. 

Sheriff — Damages  for  Lack  of  Care — Proof. 

It  is  the  duty  of  a  sheriff  to  take  into  his  possession  goods  levied 
upon,  and  If  the  property  is  such  that  he  may  not  do  so  he  should 
place  it  in  charge  of  some  person  for  whose  action  he  is  willing  to  be 
resi)onsible. 

Proof. 

In  a  suit  brought  by  an  execution  plaintiff  against  the  sheriff  for 
loss  of  goods  after  levy,  plaintiff  is  not  bound  to  prove  negligence,  but 
when  he  proves  the  levy,  the  value  of  the  goods,  and  their  loss,  the  de- 
fendant, to  escape  liability,  must  prove  that  he  was  not  negligent. 

APPEAL  FROM  HANCOCK  CIRCUIT  COURT. 

September  30, 1874. 

Opinion  by  Judge  Cofer  : 

It  is  the  duty  of  a  sheriflF  who  levies  an  execution  upon  personal 
property  capable  of  manual  possession,  to  take  it  into  his  possession 
and  put  it  in  a  place  where  it  is  reasonably  secured ;  or  if  it  is  not  in 
such  condition,  or  of  such  nature  that  he  can  take  actual  possession  of 
it,  he  should  either  place  it  under  the  charge  of  some  one  for  whose 


io6  Kentucky  Opinions. 

vigilance  and  good  faith  he  is  willing  to  become  responsible,  or  to 
proceed  without  unnecessary  delay  to  sell  it,  and  if  he  fails  to  do  so 
without  sufficient  excuse,  and  the  property  is  lost,  he  is  liable  to  the 
plaintiff  in  the  execution  for  any  loss  he  may  sustain  in  consequence 
of  the  loss  of  the  property  levied  on ;  and  when  sued,  as  in  this  case, 
for  allowing  the  property  to  be  lost,  the  levy,  loss  of  the  property, 
and  insolvency  of  the  execution  defendant  being  admitted,  the  sheriff 
and  his  sureties  are  prima  facie  liable  for  the  value  of  the  property, 
if  of  less  value  than  the  debt,  interest  and  cost,  and  if  of  equal  or 
greater  value,  for  the  amount  due  on  the  execution. 

It  does  not  devolve  upon  the  plaintiff  in  such  a  case  to  prove  negli- 
gence on  the  part  of  the  officer,  but  having  proved  the  value  of  the 
property  levied  on,  he  is  entitled  to  judgment,  unless  the  officer  shows 
that  the  property  levied  on  was  lost  without  fault  on  his  part.  He 
cannot  excuse  himself  by  showing  ordinary  diligence;  he  is  bound 
to  show  diligence  in  the  performance  of  his  official  duties,  and  cannot 
escape  in  a  case  like  this  if  his  negligence,  however  slight,  has  re- 
sulted in  the  loss  of  the  property  levied  on. 

If  the  tobacco  was  not  in  a  condition  to  be  removed,  he  should 
have  proceeded  at  once  to  advertise  and  sell,  unless  prevented  by 
other  official  duties,  or  by  some  cause  which  would  have  been  suffi- 
cient to  excuse  him  in  case  he  had  failed  to  make  a  levy.  But  instead 
of  doing  so  he  failed,  at  the  instance  of  the  execution  defendant,  for 
a  period  of  eighteen  days,  to  advertise  at  all.  This  was  such  a  dere- 
liction of  duty,  if  unexplained,  as  ought  to  have  rendered  him  liable 
for  the  loss  of  the  tobacco. 

There  is  no  attempt  in  the  evidence  to  excuse  the  delay  in  selling, 
except  that  it  had  been  at  the  instance  of  the  execution  defendant.  If 
the  indulgence  was  granted  to  him,  the  sheriff  must  be  taken  to  have 
confided  in  him  to  keep  the  tobacco  securely,  and  if  loss  ensued,  he, 
and  not  the  execution  plaintiff,  must  bear  it.  Giving  to  the  evidence 
the  most  favorable  construction  which  the  court  below  could  have  put 
upon  it,  we  think  the  finding  is  unsupported  by  it,  and  the  judgment 
is  therefore  reversed,  and  the  cause  is  remanded  for  further  pro- 
ceedings. 

Kincheloe  &  Jolly,  for  appellants. 
Sweeney  &  Bush,  for  appellees. 


C.  J.  Jewell  v,  A.  G.  Howard,  et  al.  107 

C.  J.  Jewell  v.  A.  G.  Howard,  et  al. 

Real  Estate— Survey — Conveyance. 

Where  the  owner  of  real  estate  has  the  boundaries  thereof  fixed  by 
survey  and  then  conveys  to  a  purchaser  according  to  such  boundaries, 
who  conveys  same  to  a  person,  for  a  valuable  consideration,  who  has 
no  notice  or  knowledge  of  a  mistake  In  the  acreage  first  conveyed,  the 
first  grantor  has  no  cause  of  action  against  the  last  purchaser. 

APPEAL  PROM  DAVIESS  CIRCUIT  COURT. 

September  30,  1874. 

Opinion  by  Judge  Lindsay  : 

After  appellant  sold  to  Givens  he  caused  the  tract  of  land  to  be  sur- 
veyed, and  the  boundaries  to  be  marked  and  the  comers  established. 
The  mistake  of  which  he  now  complains  is  that  one  line  is  ten  poles 
longer  than  is  shown  by  the  survey,  and  hence  that  the  tract  contains 
about  seven  acres  more  than  appeared  from  the  calculation  of  the  sur- 
veyor. Appellees  bought  from  Givens  without  notice  of  this  mistake. 
They  bought  to  the  marked  boundaries  and  to  the  corners  established 
by  appellant.  He  conveyed  to  them  instead  of  to  Givens,  and  his 
deed  conveys  all  the  land  within  the  marked  boundaries.  The  cor- 
ners and  calls  of  the  survey  are  set  out  in  the  deed,  but  by  mistake 
one  line  is  described  as  64 J4  poles  in  length  instead  of  74 J4.  Ap- 
pellees do  not  ask  for  the  correction  of  their  deed.  They  are  in  pos- 
session, and  are  satisfied  with  their  title.  Appellant  seeks  either  to 
disregard  this  deed,  or  to  have  the  court  determine  that,  because  of 
the  mistake  of  the  survey,  the  corners,  the  marked  boundaries,  and 
the  established  comers,  must  yield  to  the  statement  of  distances.  This 
would  be  to  reverse  the  rule  upon  which  this  court  has  always  acted. 
If  appellant  has  any  remedy  (a  matter  we  do  not  decide),  it  is  against 
Givens,  and  not  against  the  appellees. 

Judgment  affirmed. 

Judge  Gofer  did  not  sit  in  this  case. 

Sweeney  &  Stuart,  for  appellant, 
Owen  &  Ellis,  for  appellees. 


W.  E.  Snoddy  v.  William  Johnston. 

Guarantors — Liability  to  Purchaser  of  Note. 

Persons  who  sign  their  names  on  the  back  of  a  note  that  has  never 
beea  held  by  them  to  induce  a  person  to  purchase  the  note,  thereby 
become  guarantors  thereof.  Whether  they  are  bound  Jointly  or  sev- 
erally is  a  question  of  fact  to  be  determined  by  a  Jury. 


io8  Kentucky  Opinions. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

October  1,  1874. 

Opinion  by  Judge  Lindsay  : 

This  court  adheres  to  the  doctrine  of  the  case  of  Arnold  v,  Bryant. 
All  the  testimony  permitted  by  the  court  to  go  to  the  jury  tends  to 
show  that  neither  Johnston  nor  Nuremberger  ever  held  the  note 
(upon  the  back  of  which  they  indorsed  their  names)  as  assignees. 
It  is  also  evident  that  they  wrote  their  names  across  the  back  of 
said  note  to  induce  Snoddy  to  purchase  it,  and  it  therefore  follows 
that  they  intended  to  become  bound  to  him  for  its  payment  in  some 
way. 

As  they  were  not  assignees  of  Doern  &  Co.,  the  legal  presump- 
tion is  that  they  intended  to  bind  themselves  as  guarantors.  In  the 
absence  of  all  information  by  Snoddy  of  a  contrary  intention  upon 
their  part,  he  had  the  right  to  act  upon  such  presumption  and  to 
treat  them  as  such.  Whether  or  not  they  did  so  intend  to  bind  them- 
selves, and  if  they  did  not,  whether  Snoddy  had  information  to 
that  effect,  are  questions  of  fact  to  be  decided  by  the  jury.  Whether, 
if  they  contracted  as  guarantors,  they  contracted  to  be  bound  jointly 
or  severally,  is  also  a  question  of  fact  which  the  jury  had  the  right 
to  determine. 

The  proof  permitted  by  the  court  to  go  to  the  jury,  certainly 
tended  to  show  that  Johnston  &  Nuremberger  contracted  to  be 
bound  to  Snoddy  as  guarantors,  and  appellant  did  not  so  utterly 
fail  to  show  that  their  contract  was  joint  as  to  authorize  the  court 
to  take  the  case  away  from  the  jury  on  that  account. 

It  was  in  proof  that  Snoddy  agreed  to  purchase  the  note  upon 
condition  that  Doern  would  procure  Johnston  &  Nuremberger  to 
endorse  it.  It  was  also  in  proof  that  Johnston  had  stated  that  he 
endorsed  the  note  upon  the  understanding  that  Nuremberger  was 
also  to  endorse  it.  Johnston  says  that  he  signed  after  Nuremberger, 
and  that  he  did  so  to  accommodate  Doern.  The  proof  tends  to 
show  that  both  he  and  Nuremberger  signed  for  Doern's  accommo- 
dation. Johnston  states  further  that  he .  had  no  agreement  with 
Nuremberger  to  guarantee  the  payment  of  the  note,  but  he  does 
not  deny  that  he  expected  to  be  jointly  bound  with  Nuremberger 
in  some  way.  As  before  stated,  as  neither  Johnston  nor  Nurem.- 
berger  had  ever  held  the  note  as  assignees,  and  as  there  is  no  proof 
that  Snoddy  had  information  that  they  did  not  intend  to  be  bound 
as  guarantors,  he  had  the  right  to  act  upon  the  legal  presumption 


H.  D.  Owens,  et  al.,  v.  Michael  Smith.  109 

arising  from  these  acts  and  to  treat  them  as  such.  Coupling  with 
this  presumption  the  testimony  allowed  by  the  court  to  go  to  the 
jury,  we  are  of  opinion  that  if  the  jury  had  found  them  jointly 
bound,  the  court  would  not  have  been  authorized  to  set  aside  the 
verdict  upon  the  ground  that  in  this  particular  it  was  not  supported 
by  sufficient  evidence. 

The  amended  petition  was  properly  stricken  from  this  case. 
After  appellant  had  voluntarily  filled  up  and  sued  upon  the  joint 
contract  of  guaranty,  he  should  not  be  allowed  (without  averring 
and  proving  fraud  or  mistake)  to  abandon  his  chosen  petition,  and 
claim  that  Johnston  &  Nuremberger  had  contracted  with  him,  sep- 
arately and  individually. 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

Seymour  &  Abbott,  R.  IV.  Wooley,  for  appellant. 
Muir  &  Bijou,  for  appellee. 


H.  D.  Owens,  et  al.,  v.  Michael  Smith. 

Lease  Contract — Failure  to  Get  Possession. 

A  lessor  cannot  be  permitted  to  obtain  an  advantage  by  reason  of  his 
own  wrong  in  not  surrendering  possession  of  leased  premises  to  his 
lessee,  when  he  has  agreed  to  do  so. 

APPEAL  FROM  HARDIN  CIRCUIT  COURT. 

October  1,  1874. 

Opinion  by  Judge  Peters: 

There  is  no  evidence  that  the  contract  for  the  rent  of  what  is  de- 
scribed as  the  Watkins  place  was  entered  into  between  Warfield 
and  appellee  with  any  intention  on  the  part  of  either  of  them  to 
hinder  or  obstruct  any  of  Warfield's  creditors  in  the  collection  of 
their  debts.  McGill  and  Geehogan  appear  to  have  been  indemnified 
as  his  sureties,  or  at  least  they  accepted  the  security  he  gave  them 
as  ample  indemnity,  although  the  land  mortgaged  to  them  had  been 
leased  to  appellee  before  the  mortgage  was  executed,  of  which  they 
had  at  the  time  actual  notice. 

The  stipulation  in  the  contract  that  appellee  failed  to  get  pos- 
session of  the  Watkins  place  at  the  time  designated,  cannot  be  so 
construed  as  to  make  it  operative  for  the  benefit  of  appellants ;  such 


no  Kentucky  Opinions. 

was  not  the  intention,  and  if  he  can  avail  himself  of  it  he  would 
thereby  get  a  premium  for  failing  to  surrender  possession  of  the 
place  at  the  time  he  was  bound  by  the  terms  of  his  contract  with 
Warfield  to  do.  Appellant  is  not  prejudiced  by  the  judgment  and 
the  same  is  affirmed. 

Brown  &  Murray,  for  appellants. 
Montgomery  &  Wilson,  for  appellee. 


F.  Montgomery,  et  al.,  v.  William  Gardner. 

Mill  and  Mill  Seat— Sale  of  by  Parol  Contract. 

Where  a  mill  and  mill  seat  are  not  only  sold,  but  three  acres  of 
ground  surrounding  it,  "so  long  as  the  property  was  used  as  a  mill," 
Buch  mill  and  mill  seat  is  a  part  of  the  real  estate,  and  no  action  can 
be  maintained  upon  a  parol  contract  for  its  sale. 

APPEAL  FROM  NELSON  CIRCUIT  COURT. 

October  1,  1874. 

.  Opinion  by  Judge  Pryor: 

It  is  maintained  by  the  appellants  that  the  mill  and  mill  seat  are 
personal  estate,  and  as  such  passed  by  the  sale  to  the  appellee. 

The  mill  and  mill  seat  were  not  only  sold,  but  three  acres  of 
ground  surrounding  it,  so  long  as  the  property  was  used  as  a  mill. 
If  a  water  mill,  as  we  suppose  it  was,  when  sold  as  such,  with  the 
mill  seat,  it  must  be  regarded  as  a  part  of  the  realty,  and  no  action 
can  be  maintained  upon  a  parol  contract  for  the  sale  of  it. 

There  is  no  equitable  feature  in  the  case  that  would  authorize 
any  other  judgment  than  that  rendered  disregarding  the  sale. 

The  judgment  of  the  court  below  is  affirmed, 

Muir  &  Wicliliffe,  Johnson,  for  appellants. 
/.  W.  TJtomas,  for  appellee. 


Samuel  Mills  v.  William  R.  Early. 

Sale  of  Land— Description — ^Judgment. 

Land  sought  to  be  subjected  to  sale  to  satisfy  a  debt  must  be  de- 
scribed in  the  petition  so  that  the  commissioner  to  make  sale  can  iden- 
tify the  land  from  an  examination  of  the  petition  and  papers  in  the 
suit  A  Judgment  for  plaintiff  on  such  a  defective  petition  will  be  re- 
versed. 


A.  E.  Porter,  G'd'n,  v,  E.  P.  Neal,  et  al.  hi 

APPEAL  FROM  OHIO  CIRCUIT  COURT. 

October  2,  1874. 

Opinion  by  Judge  Peters: 

The  land  sought  to  be  subjected  to  sale  to  satisfy  appellee's  debt 
is  not  sufficiently  identified  by  the  description  given  in  the  petition. 
It  is  represented  in  the  petition  as  "Beginning  at  a  point  on  the 
north  fork  of  Adam's  fork  of  Rough  creek  in  Ohio  county,  being 
on  the  east  side  of  the  north  fork  and  the  south  half  of  354  acres 
of  land  conveyed  to  William  B.  Early  by  deed  dated  March  19, 
1870,  recorded,"  etc.,  to  which  reference  is  made  in  the  petition ;  but 
that  deed  is  not  filed  as  an  exhibit.  The  clerk  states  there  is  no 
such  deed  in  the  papers.  It  is  alleged  that  by  the  terms  of  the  con- 
veyance to  defendant,  a  lien  was  retained  for  the  unpaid  purchase 
money,  and  a  deed  from  Early  to  appellant  is  copied  in  the  record, 
but  it  is  not  made  a  part  of  the  petition,  nor  is  it  alleged  that  ap- 
pellant accepted  it.  Said  deed  was  made  a  part  of  the  answer  which 
appellant  filed  in  the  case,  but  appellee  demurred  to  that  answer, 
and  his  demurrer  was  sustained,  so  that  it  is  not  to  be  considered. 
The  judgment  directs  the  master  to  sell  the  land  in  the  petition 
mentioned,  or  so  much  thereof  as  may  be  necessary,  etc.,  which  re- 
quires the  commissioner  to  determine  judicially,  by  going  to  the 
clerk's  office  and  hunting  the  title  papers,  what  land  he  must  sell. 
This  power  the  court  cannot  confer  on  him. 

The  judgment  should  have  contained  such  a  description  of  the 
land  as  would  have  informed  the  commissioner  of  the  precise  tract 
or  parcel  of  land  he  was  required  to  sell,  without  reference  to  any 
evidence  of  title  not  in  the  papers  of  the  suit,  imposing  on  him  no 
other  duty  than  to  sell  the  land  specifically  set  forth  in  the  judgment. 
This  question  has  been  repeatedly  decided  by  this  court  heretofore. 

Wherefore  the  judgment  is  reversed  and  the  cause  is  remanded 
with  directions  for  further  proceedings  consistent  herewith. 

Massie  &  Chapese,  for  appellant, 

Sweeney  &  Ellis,  for  appellee. 


A.  E.  Porter,  Guardian,  v.  E.  P.  Neal,  et  al. 

for  New  Trial— Conflicting  Evidence. 
Where  the  record  fails  to  show  clearly  when  a  motion  for  new  trial 
was  made,  the  court  of  appeals  will  presume  it  to  have  been  made 
within  the  proper  time. 


112  Kentucky  Opinions. 

Conflicting  Evidence. 

When  the  evidence  Is  conflicting  the  court  of  appeals  will  not  dis- 
turb the  judgment  on  that  account 

APPEAL  FROM  WARREN  CIRCUIT  COURT. 

October  2,  1874. 

Opinion  by  Judge  Pryor: 

The  verdict  of  the  jury  was  rendered  on  April  3,  1873  (Thurs- 
day), and  the  motion  for  a  new  trial,  as  the  record  recites,  was 
made  on  April  6,  1873.  This  date  was  Sunday,  and  therefore  there 
must  be  some  mistake  as  to  the  day  on  which  the  motion  was  made. 
If  made  on  the  fifth,  it  was  in  time,  but  if  on  the  sixth  or  seventh 
it  was  too  late. 

It  could  not  have  been  made  either  on  the  fifth  or  seventh ;  and 
as  the  rule  is  technical,  and  the  substantial  rights  of  the  parties  can- 
not be  affected  by  correcting  each  error  as  appears  upon  the  record, 
we  must  indulge  the  presumption  that  the  motion  was  made  within 
proper  time.  The  answer  of  the  defendants  is  a  plea  of  payment, 
and  not  a  set-off,  and  therefore  could  be  pleaded  to  the  claim  of  ap- 
pellant conceding  that  the  action  had  been  instituted  in  his  fiduciary 
capacity.  The  petition  does  not  show  that  the  daim  declared  on  is 
payable  to  appellant  as  a  fiduciary,  and  the  word  guardian  is  merely 
a  description  personae,  and  there  is  no  reason  why  a  set-off  could 
not  have  been  pleaded  as  well  as  the  plea  of  payment. 

As  there  was  conflicting  proof  on  the  question  as  to  whether  or 
not  the  parties  had  agreed  to  credit  the  cattle  money  on  the  note, 
this  court  would  not  disturb  the  judgment  on  that  account.  As  to 
the  rent  note  of  Pates  &  Bro.,  the  proof  from  both  parties  shows 
that  the  real  amount  to  be  credited  was  never  ascertained,  and  no 
acceptance  made  of  it  as  a  payment.  The  parties  disagreed  as  to 
the  amount  to  be  deducted  from  this  note  for  the  improvements,  and 
for  that  reason,  among  others,  failed  to  conclude  that  settlement. 

The  instruction  of  the  court  to  the  effect  that  the  jury  could  allow 
no  claim  for  rent  unless  the  same  was  taken  and  accepted  as  a  pay- 
ment by  plaintiff,  would  have  been  proper  if  there  had  been  evi- 
dence upon  which  to  base  it.  There  was  no  evidence  showing  that 
this  note  was  received  as  payment,  but,  on  the  contrary,  the  proof 
conduces  to  show  that  the  amount  of  the  rent  had  never  been  agreed 
on  by  reason  of  the  disagreement  in  regard  to  the  improvements. 
For  the  reasons  indicated,  the  judgment  is  reversed  and  cause  re- 


D.  R.  BuRBANKS,  Jr.,  Adm'r.,  v.  D.  R.  Burbanks,  Sr.,  Adm'r.    113 

manded  with  directions  to  award  a  new  trial,  and  for  further  pro- 
ceedings consistent  with  this  opinion. 

H.  r.  Clark,  for  appellant. 
J,  A.  Mitchell,  for  appellees. 


D.  R.  Burbanks,  Jr.,  Adm'r.,  v.  D.  R.  Burbanks,  Sr.,  Adm'r. 

Purchase  of  Real  Estate— False  Representations  to  Induce  One  to  Buy- 
Warranty^— Judgment. 

When  a  vendor  of  real  estate,  to  induce  one  to  buy,  states  that  he 
will  purchase  an  adjoining  lot  and  protect  the  building  sold  from  be- 
ing obstructed  by  the  erection  of  other  buildings,  such  statement  Is 
not  a  false  representation  as  to  an  existing  fact,  but  a  mere  promise 
not  incorporated  in  the  deed  and  does  not  entitle  the  vendee  to  a  re- 
scission of  contract. 

Warranty. 

One  cannot  recover  for  breach  of  covenants  of  warranty  until  he  is 
disturbed  or  the  covenants  are  broken. 

Form  of  Judgment. 

A  Judgment  is  invalid  when  it  provides  that  plaintiff  shall  recover 
principal  and  interest  "in  gold  coin  or  its  equivalent  in  legal  tender 
notes/'  but  fails  to  determine  what  constitutes  such  notes. 

APPEAL  FROM  HENDERSON  CIRCUIT  COURT. 

October  2,  1874. 

Opinion  by  Judge  Lindsay  : 

It  is  insisted  that  the  answer,  together  with  the  amendment 
offered,  presented  a  state  of  case  requiring  either  a  recission  of  the 
contract  or  an  abatement  from  the  purchase  money  due. 

A  conveyance  had  been  accepted.  There  is  no  such  state  of  facts 
alleged  as  would  authorize  the  chancellor  to  rescind  an  executed 
contract  upon  the  ground  of  fraudulent  misrepresentations  at  the 
time  of  the  sale  and  conveyance.  The  amendment  is  that  the  plain- 
tiflf's  intestate  induced  D.  R.  Burbanks,  Jr.,  to  make  the  purchase, 
by  fraudulently  representing  to  him  that  he  would  purchase  a  por- 
tion of  HoUoway's  lot,  and  thereby  complete  the  title  to  the  party 
wall,  and  protect  the  building  from  being  obstructed  by  the  erection 
of  other  buildings  on  said  adjoining  lot,  and  that  he  had  failed 
to  keep  and  perform  this  agreement.     This  was  not  a  fraudulent 

8 


114  Kentucky  Opinions. 

and  false  representation  as  to  an  existing  fact,  but  a  mere  promise 
or  undertaking  to  do  that  which  was  necessary  to  perfect  the  title. 
The  purchaser  was  then  about  to  accept.    Besides  this,  it  was  an 
oral  agreement  not  incorporated  in  the  deed,  and  therefore  not  to* 
be  treated  as  part  of  the  contract. 

It  appears  that  the  purchaser  was  fully  apprised  of  the  defects 
of  title  as  to  the  party  wall,  and  of  the  fact  that  the  vendor  did  not 
own  the  original  lot;  and  yet,  with  a  knowledge  of  these  facts,  he 
accepted  the  conveyance.  He  must,  therefore,  be  held  to  have  ac- 
cepted the  covenants  of  warranty  as  sufficient  guarantees  of  title 
and  possession.  The  covenant  has  not  as  yet  been  broken.  The 
widow  of  Burbank,  senior,  has  asserted  no  claim  to  dower.  There 
is  no  averment  of  insolvency  of  the  vendor's  estate,  nor  that  his 
heirs  and  distributees  are  insolvent,  or  now  residents  of  this  com- 
monwealth, nor  that  the  distribution  of  the  personalty  and  the  par- 
tition of  the  realty,  left  by  the  vendors  among  his  distributees  and 
heirs,  will  in  any  way  impair  the  guarantee  of  title  and  possession 
contained  in  the  general  and  special  covenants  of  warranty  set  out 
in  the  deed.  Under  such  a  state  of  case  the  chancellor  cannot  inter- 
fere. 

The  alleged  oral  agreement  to  purchase  and  hold  the  adjoining 
lot  cannot  be  enforced,  because  the  parties  failed  to  incorporate  it 
into  the  written  evidences  of  what  the  contract  of  sale  was.  The 
court,  therefore,  did  not  err  in  refusing  to  allow  the  amended  peti- 
tion to  be  filed,  nor  in  rendering  judgment,  notwithstanding  the 
facts  set  up  in  the  original  answer. 

The  form  of  the  judgment,  however,  is  fatally  defective.  It 
provides,  as  it  should,  that  appellee  shall  recover  the  amount  of 
his  note,  principal  and  interest,  in  gold  coin  or  its  equivalent  in 
legal  tender  notes,  but  it  fails  to  determine  what  constitutes  the 
equivalent  in  legal  tender  notes  of  the  amount  of  the  gold  coin  due. 
As  the  judgment  now  stands,  when  the  sheriff  goes  to  collect  the  ex- 
ecution that  may  have  issued  upon  it,  or  the  commissioner  to  sell  the 
house  and  lot,  it  will  be  necessary  to  judicially  determine  what  num- 
ber of  dollars  in  legal  tender  notes  will  equal  the  amount  thus  due  in 
gold  coin. 

This  is  not  a  matter  of  calculation.  It  is  necessary,  before  the 
calculation  can  be  made,  to  determine  as  matter  of  fact  the  discount 
upon  legal  tender  notes,  or  the  premium  upon  gold.  Of  course  a 
question  like  this  cannot  be  left  to  the  judgment  of  a  ministerial 
officer.    The  court  should  have  ascertained  the  relative  value  of  gold 


TuLLY  Choice,  et  al.,  v,  J.  Q.  A.  King.  115 

and  legal  tender  notes  at  the  time  of  the  payment,  and  have  then 
adjudged  that  the  judgment  for  gold  coin  might  be  discharged  by 
the  payment  of  a  fixed  sum  in  legal  tender  notes,  bearing  interest 
in  legal  tender  notes,  the  interest  running  from  that  day.  Where- 
fore the  judgment  is  reversed  and  the  cause  remanded  for  a  judg- 
ment conformable  to  this  opinion. 

Clay  &  Coletnan,  for  appellant. 
Vance  &  Merritt,  for  appellee. 


TuLLY  Choice,  et  al.,  v.  J.  Q.  A.  King. 

Interest — Defective  Judgment — Suit  on  Note. 

In  a  suit  on  a  note  plaintiff  cannot  recover  ten  per  cent,  interest  by 
showing  that  defendant  promised  to  pay  that  rate,  where  the  agree- 
ment was  not  in  writing. 

Defective  Judgment. 

A  judgment  directing  the  sale  of  real  estate  failing  to  direct  the 
commissioner  how  much  money  he  is  to  raise  by  the  sale.  Is  void. 
Such  a  Judgment  cannot  be  amended  by  order  of  the  court  after  the 
parties  had  ceased  to  be  in  court  for  any  purpose  other  than  the  ex- 
ecution of  the  order  of  sale. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

October  2, 1874. 

Opinion  by  Judge  Cofer: 

Although  the  appellee  alleges  that  he  was  by  agreement  to  have 
10  per  cent,  interest  and  the  amount  of  the  note  sued  on,  as  that 
agreement  does  not  appear  to  have  been  in  writing,  it  was  error 
to  render  judgment  for  more  than  6  per  cent,  interest. 

The  judgment  directing  a  sale  of  the  land  does  not  direct  the 
commissioner  how  much  money  he  is  to  raise  by  the  sale.  If  it  be 
said  that  the  court  had  already  ascertained  the  amount  by  the 
previous  judgment,  we  answer  that  that  judgment  was  against  only 
a  part  of  the  appellants,  and  as  to  the  others  there  was  no  direction 
whatever  in  the  record  as  to  the  amount  for  which  the  sale  was  to 
be  made.  Nor  was  this  palpable  defect  in  the  judgment  cured  by 
the  order  styled  an  amended  judgment  made  at  the  October  term, 
1873.  That  judgment  declared  more  to  be  due  than  was  in  fact  due, 
and  was  made  after  the  parties  had  ceased  to  be  in  court  for  any 


ii6  Kentucky  Opinions. 

purpose  other  than  the  execution  of  the  order  of  sale  made  at  a 
previous  term ;  and  as  they  had  no  notice  of  it,  it  was  void. 

This  order  was  directed,  and  the  commissioners,  in  obedience 
to  it,  sold  for  more  money  than  was  due  on  the  judgment  previously 
rendered  against  a  part  of  the  defendants,  and  was  therefore  void 
as  to  them  and  as  to  the  other  defendants.  The  amount  to  be  made 
by  the  sale  never  was  ascertained  except  by  the  void  order  of 
October,  1873,  made  less  than  ten  days  before  the  sale  was  made, 
and  the  sale  was  therefore  void  as  to  them. 

Wherefore,  for  the  errors  mentioned,  the  personal  judgment 
against  appellants,  E.  S.  Choice  and  TuUy  Choice,  and  the  judg- 
ment for  sale  of  the  land,  and  the  order  confirming  the  sale,  are 
reversed  and  the  cause  is  remanded  for  further  proceedings. 

We  have  not  acted  on  the  motion  made  by  or  for  the  appellants. 
Patter  and  wife,  to  dismiss  the  appeal.  As  to  them,  because  the 
appeal,  having  been  taken  by  an  attorney  of  this  court,  we  must 
presume  he  had  authority  to  do  so,  and  the  only  mode  by  which  the 
question  of  his  authority  could  have  been  raised  was  by  affidavit 
and  rule  on  him  to  show  by  what  authority  he  prosecuted  the  ap- 
peal. 

/.  M.  Bigger,  for  appellants. 
L.  D.  Husband,  for  appellee. 


Louisville  &  Nashville  R.  Co.  v.  John  M.  May. 


Damages— Negligence — Instructions— Weight  of  Evidence. 

Where,  in  a  suit  for  damages  resulting  from  the  negligent  acts  of 
the  defendant,  the  court  charges  the  Jury  that  it  should  consider  all 
the  facts  and  circumstances  proven  In  the  case,  it  was  authorized  to 
take  into  consideration  the  condition  of  the  drawhead;  and  the  court 
did  not  err  in  refusing  to  give  an  Instruction  as  to  the  condition  of 
such  drawhead. 

Weight  of  the  Evidence. 

Where  there  have  been  two  concurring  verdicts,  the  court  of  appeals 
will  not  reverse  a  judgment  on  the  weight  of  the  evidence. 

APPEAL  FROM  WARREN  CIRCUIT  COURT. 

October  3,  1874. 

Opinion  by  Judge  Lindsay: 

The  court  did  not  err  in  refusing  instruction  No.  8,  asked  by 
appellant.    The  appellee  was  bound  to  use  ordinary  care,  and  the 


S.  Q.  M.  Major  v.  R.  C.  Williams,  et  al.  117 

jury  were  so  instructed,  and  in  determining  whether  he  did  use 
such  care,  the  jury  were  told  by  instruction  No.  14  that  they  should 
consider  all  the  facts  and  circumstances  proven  in  the  case.  This 
authorized  them  to  take  into  consideration  the  condition  of  the  draw- 
head;  to  have  called  special  attention  to  the  drawhead,  as  was 
intended  to  be  done  by  the  refused  instruction,  would  have  been 
to  give  its  condition  undue  importance.  Instruction  No.  12,  gpiven 
on  motion  of  appellee,  is  not  subject  to  the  criticism  in  which 
cotmsel  indulge.  The  adjectives  "gross"  and  "willful"  apply  to  and 
qualify  "carelessness"  as  well  as  "negligence,"  and  this  fact  must 
have  been  palpable  to  the  jury. 

We  cannot  reverse  this  judgment  upon  the  facts.  Appellant 
proves  more  than  mere  inadvertance  upon  the  part  of  the  fireman, 
who  was  operating  the  engine  at  the  time  of  the  accident.  If  the 
speed  of  the  locomotive  was  suddenly  increased,  when  the  two  cars 
to  be  coupled  were  in  a  few  inches  of  each  other,  it  was  an  act  of 
gross  negligence,  if  not  of  positive  recklessness. 

The  fact  of  the  increase  of  speed  is  disputed  by  two  or  more  wit- 
nesses ;  it  was  for  the  jury  to  determine  the  question. 

They  accepted  and  acted  on  the  version  given  by  appellee,  and  as 
this  is  the  second  finding  in  his  favor  we  do  not  feel  authorized  to 
interfere. 

Judgment  affirmed. 

Hines  &  Porter,  for  appellant. 
J.  A.  Mitchell,  for  appellee. 


S.  Q.  M.  Major  v.  R.  C.  Williams,  et  al. 


Trust  Estate — Husband  and  Wife — ^Payments  by  Trustee— Approval  of 
Bond  of  Trustee. 

Where  an  estate  is  left  in  trust  for  the  benefit  of  a  daughter,  the 
trustee  cannot  claim  credits  for  money  advanced  to  the  husband  of 
such  daughter. 

Payments  by  Trustee. 

When  by  will  an  estate  is  left  to  a  daughter,  and  her  brother  is 
made  trustee,  and  the  daughter  and  trustee  and  other  members  of  the 
family  live  together  in  the  family  homestead,  and  such  trustee  ex- 
pends large  sums  of  money  in  supporting  all  the  members  of  such 
family,  on  account  of  his  aftection  for  them,  and  uses  the  income  of 
the  members  of  such  family  and  even  more  than  their  Income  in  do- 
ing so,  he  cannot  claim  credit  against  the  daughter's  estate  on  account 
of  such  excessive  expenditures. 


ii8  Kentucky  Opinions. 

Bond  of  Trustee. 

The  bond  of  a  trustee,  where  an  estate  in  trust  is  created  by  will, 
must  be  approved  by  the  court  and  not  by  the  clerk. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT. 

October  3,  1874. 

Opinion  by  Judge  Pryor: 

The  court,  in-  the  determination  of  this  controversy,  has  confined 
its  investigation  to  the  judgment  rendered  in  favor  of  Catherine  M. 
Williams,  except  in  so  far  as  it  is  claimed  by  the  appellant  that  the 
indebtedness  of  her  husband,  R.  C.  Williams,  to  him,  should  be 
applied  to  the  payment  of  the  debt  due  by  appellant  to  his  wife. 
The  attempted  settlement  between  the  appellant  and  R.  C.  Williams 
of  their  individual  accounts,  embracing  many  thousand  dollars,  and 
containing  numerous  receipts  and  vouchers,  tends  only  to  confuse 
and  obscure  the  real  object  in  the  prosecution  of  this  action,  viz., 
the  settlement  of  the  accounts  of  the  appellant  as  the  executor  of 
the  father,  and  conduces  in  no  manner  to  aid  the  court  in  ascertain- 
ing the  interest,  if  any,  of  Mrs.  Williams  in  her  father's  estate.  No 
argument  or  statement,  by  brief  or  otherwise,  pointing  out  any 
errors  in  these  individual  accounts,  has  been  made  by  either  side; 
and  as  they  are  foreign  to  the  issue  raised  by  Mrs.  Williams,  the 
case  will  be  considered  with  reference  solely  to  the  claim  of  the 
latter. 

The  judgment  also  being  separate  and  distinct,  the  parties  to  the 
record  can  hereafter  prosecute  their  appeal,  as  this  judgment  leaves 
these  questions  undisposed  of.  We  are  not  disposed  to  follow  the 
commisioner  in  his  adjustment  of  the  accounts  between  the  appel- 
lant and  the  appellee,  Mrs.  Williams,  as  the  case  can  be  disposed  of 
without  reference  to  the  manner  in  which  these  accounts  have  been 
stated.  The  testator,  the  father  of  the  appellant  and  Mrs.  Wil- 
liams, owned  at  his  death  an  estate  including  land,  slaves  and  per- 
sonalty valued  at  twenty  thousand  dollars.  He  was  indebted,  as  the 
evidence  shows,  in  the  sum  of  about  three  thousand  dollars  on  his 
own  account,  and  liable  for  as  large  a  sum,  or  more,  as  the  surety  of 
the  appellant,  who  was  left  his  executor.  The  appellant  qualified 
as  such  in  the  year  1855,  and  never  at  any  time  has  made  a  settle- 
ment of  his  accounts,  the  object  of  this  action  being  to  procure  a 
settlement. 

The  testator  left  his  widow  and  five  children  surviving  him.     By 


S.  Q.  M.  Major  v.  R.  C.  Wiluams,  et  al.  119 

his  will  he  devised  to  his  daughter,  Catherine,  now  Mrs.  Williams, 
a  legacy  of  two  thousand  dollars  over  and  above  her  distributable 
share,  placing  the  whole  of  her  interest  in  the  hands  of  her  brother, 
John  B.  Major,  as  her  trustee.  None  of  this  estate  or  any  part  of 
this  legacy  was  ever  paid  to  the  trustee  or  controlled  by  him  in  any 
way.  Mrs.  Williams  was  about  16  years  of  age  at  the  death  of  her 
father,  and  seems  never  to  have  had  any  guardian.  Her  mother, 
the  widow  of  the  testator,  was  in  feeble  health,  and  had  been  for 
years  unable  to  walk,  and  by  the  provisions  of  the  will  was  to  have 
a  liberal  allowance  for  her  support  and  maintenance.  The  executor 
sold  the  land,  by  a  proceeding  in  equity,  for  the  payment  of  debts, 
and  out  of  the  proceeds  seems  to  have  paid  the  indebtedness  of  the 
estate  as  well  as  his  own,  for  which  his  father  was  liable  as  surety. 
No  vouchers,  or  at  least  but  few,  were  retained  by  the  executor 
evidencing  his  payments,  and  therefore  he  was  in  no  condition,  by 
reason  of  his  own  laches,  to  receive  such  credits  as  he  claimed  in 
his  settlement  made  with  the  commissioner  in  the  present  case. 

After  the  sale  of  the  land,  the  only  real  estate  left  was  the  resi- 
dence of  the  testator  in  the  city  of  Frankfort,  where  all  the  family 
continued  to  live  together  and  to  use,  own  and  control  the  property 
in  common,  the  appellant  contributing  liberally  to  the  support  of 
the  family  out  of  his  own  means,  aided  by  the  proceeds  of  the  hire 
of  the  negroes,  the  estate  of  the  mother,  and  what  little  money 
was  left  of  the  real  estate  after  the  payment  of  debts.  Mrs.  Wil- 
liams continued  to  reside  with  the  family  after  she  arrived  at  age, 
and  for  several  years  after  her  marriage  that  took  place  in  1862. 
She  was  the  principal  housekeeper  for  many  years,  economical  in 
her  habits,  but  provided  for  liberally  by  her  brother,  the  appellant, 
in  all  her  wants,  no  doubt  as  a  compensation,  to  some  extent,  for 
her  services,  but  more  by  reason  of  his  affection  for  her  than  any- 
thing else,  and  with  no  intention  of  consuming  her  pecuniary  legacy 
in  the  expenditure. 

It  is  not  unreasonable  to  allow  to  her  mother  the  one-third  of 
the  proceeds  of  the  land,  by  reason  of  the  provisions  of  the  will; 
and  deducting  that  from  this  sum,  and  the  value  of  the  personalty, 
Mrs.  Williams  would  then  have  been  entitled,  after  deducting  the  in- 
debtedness for  which  the  executor  has  been  credited,  as  far  as  he 
has  produced  vouchers,  to  about  $962 ;  and  to  this  add  the  amount  of 
the  l^;acy,  making  in  all  $2,962,  to  which  she  was  entitled  in 
March,  1857.  The  commissioner  in  his  settlement  has  committed 
an  error,  on  page  191  of  record,  in  subtracting  Mrs.  Major's  one- 


I20  Kentucky  Opinions. 

third  from  the  value  of  the  land  and  personalty.  The  value  is  fixed 
at  $7,216.21,  and  taking  from  this  $2405.40,  Mrs.  Major*s  inter- 
est, leaves  a  balance  to  be  divided  between  the  five  children  of 
$4,810.81,  instead  of  $2,810.81,  as  reported.  The  appellee,  Mrs. 
Williams,  being  entitled  to  $2,962  the  interest  on  this  sum,  together 
with  her  interest  in  the  hire  of  the  negroes,  would  yield  an  income 
of  not  less  than  $250  per  annum.  This  income,  together  with  the 
expenditures  by  the  mother  in  the  support  of  the  family,  would  not 
more  than  support  and  maintain  the  sister  in  the  circle  in  which  she 
moved.  Giving  to  the  executor  this  interest  or  income  for  his 
expenditures  for  Mrs.  Williams,  and  the  sum  of  $380,  the  difference 
between  what  is  found  due  appellees  by  this  judgment  and  that  in 
the  commissioner's  report,  it  results  in  as  correct  a  settlement  of 
the  controversy  as  can  be  arrived  at  upon  the  basis  presented  by 
the  pleadings  and  proof. 

The  executor's  burden  was  relieved  greatly  by  the  expenditure 
of  the  mother's  interest  in  the  support  of  the  family,  and  although 
he  may  not  have  received  full  compensation  for  his  liberal,  and  in 
many  instances  improvident,  expenditures  made  for  the  comfort 
and  welfare  of  his  brothers  and  sister,  the  fault  is  to  be  attributed 
to  his  own  kindness  and  indulgence  in  his  endeavor  to  gratify  their 
many  wants.  The  trust  fund  cannot  be  disposed  of  by  the  chancel- 
lor in  that  way.  The  release  executed  by  the  husband  is  no  bar  to 
the  wife's  recovery,  although  she  seems  afterward  to  have  ratified 
the  act.  The  estate  was  in  trust,  no  settlement  had  been  made  or 
money  paid  to  her  causing  the  execution  of  this  release.  She  was 
also  a  feme  covert,  and  whilst  she  may  have  been  under  a  moral 
obligation  to  appellant  by  reason  of  his  kindness  to,  and  expenditure 
of  money  for  her  husband,  still  she  was  under  no  legal  obligation 
to  pay,  and  in  no  condition,  by  reason  of  her  coverture,  to  make 
such  an  agreement  or  to  waive  her  right  to  the  trust  estate ;  and  for 
the  same  reason  the  claim  of  the  appellant  against  her  husband  can- 
not  be  set  off  against  the  judgment  for  her  benefit  in  the  present 
action. 

There  were  expenditures  made  by  the  appellant  in  improving  the 
family  residence  that  were  necessary  to  preserve  it,  and  a  charge 
made  against  him  by  reason  of  some  estate  held  by  his  mother 
in  her  own  right  in  the  state  of  Ohio  that  was  error ;  but  the  giving 
to  him  all  the  income  of  the  sister,  as  well  as  the  difference  between 
the  amount  found  due  by  him  on  settlement,  is  correct ;  and  in  this 
judgment  he  has  received  all  that  the  chancellor  can  contribute  to 


Jacob  W.  Funk  v,  Silas  Miller.  121 

reimburse  him  from  this  trust  fund.  It  is  insisted  by  counsel  for 
the  appellees  that  appellant  should  be  required  to  account  for  tlie 
value  of  the  slaves,  for  the  reason  that  he  should  have  sold  them 
and  not  the  land  for  the  payment  of  the  debts.  The  devisees 
were  nearly  all  of  age  when  the  will  was  made.  The  mother  had 
a  large  interest  in  the  estate.  John  Major,  the  trustee  of  Mrs. 
Williams,  in  conjunction  with  all  interested,  advised  the  sale  of  the 
land.  It  was  unproductive  and  of  but  little  value,  whilst  the  slaves 
were  valuable  and  would  produce  a  greater  income  than  the  land, 
and  it  was  no  doubt  to  the  interest  of  all  at  that  time,  to  sell  the 
realty  and  not  the  slaves. 

The  removal  of  the  trustee  was  proper,  but  the  clerk  should  not 
have  been  invested  with  the  power  to  accept  a  bond  with  surety  from 
a  new  trustee.  The  bond  must  be  executed  and  approved  by  the 
court.  The  allowance  to  the  attorneys,  if  to  be  paid  out  of  the  judg- 
ment in  favor  of  Mrs.  Williams,  is  exorbitant;  if  one-half  is  to  be 
paid  by  the  husband  out  of  his  own  means,  and  we  so  presume  by 
reason  of  his  litigation  with  appellant,  it  is  then  proper.  The  trustee, 
upon  qualifying,  should  be  directed  to  pay  a  reasonable  fee  to  at- 
torneys, to  be  fixed  by  the  court.  The  judgment  in  favor  of  Mrs. 
Williams  is  affirmed,  and  also  affirmed  on  her  cross-appeal. 

G.  W,  Crpddock,  for  appellant, 

C.  M.  Harwood,  John  L.  Scott,  for  appellees. 


Jacob  W.  Funk  v,  Silas  Miller. 

Principal  and  Agent — Disavowal  of  Unauthorized  Acts  of  Agent. 

When  an  agent  compromises  his  principal's  claim  against  a  debtor, 
the  principal,  to  avoid  such  a  settlement,  must  disavow  his  agent's 
acts  within  a  reasonable  time  after  learning  thereof. 

Reasonable  Time. 

A  principal's  repudiation  of  the  acts  of  his  agent  is  not  within  a  rea- 
sonable time  when  not  made  for  more  than  five  months  after  he 
learned  of  such  acts  and  more  than  a  year  after  they  were  taken. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

October  3,  1874. 

Opinion  by  Judge  Lindsay: 

According  to  Funk's  own  testimony,  he  was  notified  in  March, 
1868,  that  Shroett  &  Bush  had  compromised  with  Miller.    About 


122  Kentucky  Opinions. 

the  middle  of  the  summer  of  1868  he  ascertained  the  terms  and 
conditions  of  the  compromise.  Whether  he  obtained  this  informa- 
tion before  or  after  the  proceedings  against  Schroett  &  Bush  to 
coerce  from  these  the  amount  paid  by  Miller,  does  not  appear.  It 
is  certain,  however,  that  he  did  not  notify  Miller  of  his  intention 
to  repudiate  the  action  of  his  agent  in  making  the  compromise  until 
January,  1869,  when  the  suit  to  set  aside  the  order  dismissing  his 
action  was  instituted. 

Conceding,  then,  that  Funk's  letter  did  not  authorize  Shroett 
to  compromise  for  less  than  $1,500,  and  that  he  was  not  apprised 
of  Schroett's  violation  of  instructions  when  he  was  attempting  to 
compel  him  to  pay  over  the  money,  one  thing  is  clear,  that  with 
full  information  as  to  all  the  facts,  he  remained  silent  from  about 
the  15th  of  July,  1868,  until  January,  1869.  Up  to  the  last  named 
date.  Miller  had  received  no  intimation  that  Funk  was  dissatisfied 
with  a  compromise  that  had  been  fully  consummated  more  than  eight 
months  before. 

A  party  is  boimd  to  disavow  the  unauthorized  acts  of  his  agent 
as  soon  as  he  reasonably  can  after  they  come  to  his  knowledge; 
otherwise  his  assent  or  ratification  will  be  presumed.  If  he  neglects 
for  an  unreasonable  tim,e  to  repudiate  them,  he  makes  the  acts  his 
own,  and  is  bound  by  them  to  the  same  extent  that  he  would  have 
been  if  the  agent  had  had  previous  authority.  Here  the  principal 
failed  to  disavow  his  agent's  contract  for  five  and  one-half  months 
after  acquiring  full  knowledge  of  all  its  conditions. 

Considering  the  fact  that  the  contract  was  consummated  more 
than  a  year  before  appellant  received  this  information,  it  was  a  case 
demanding  prompt  and  immediate  repudiation  and  notice,  thereof 
to  Miller,  if  he  did  not  intend  to  ratify  it.  Under  such  circum- 
stances, a  delay  of  more  than  five  months  was  unexcusable;  and 
the  court  would  have  been  bound  to  tell  the  jury  that,  as  matter  of 
law,  appellant's  ratification  must  be  presumed. 

It  is  not  error,  therefore,  to  instruct  peremptorily  in  favor  of 
appellee. 

Judgment  aMrmed, 

J.  B.  Cochran,  for  appellant. 
Thompson  &  Booth,  for  appellee. 


W.  H.  Roberts  v.  D.  F.  Curle,  et  al.  123 

W.  H.  Roberts  v.  D.  F.  Curle,  et  al. 

Judgment  by  Default — ^Injunction. 

Where  one  fails  to  defend  when  sued  upon  a  note,  he  cannot  enjoin 
the  collection  of  the  Judgment  for  a  defense  that  existed  and  of  the 
existence  of  which  he  had  knowledge  before  the  Judgment  was  ren- 
dered. 

APPEAL  FROM  BARREN  CIRCUIT  COURT. 

October  5,  1874. 

Opinion  by  Judge  Lindsay  : 

Appellant  failed  to  defend  when  sued  on  the  note.  He  seeks  to 
enjoin  the  collection  of  the  judgment  for  a  defense  that  existed,  and 
of  the  existence  of  which  he  had  full  knowledge,  before  the  judg- 
ment was  rendered.  Sec.  14  of  the  Civil  Code  of  Practice,  forbids 
in  express  terms  the  interference  of  the  chancellor  in  such  a  state 
of  case.    Ross  v.  Ross,  3  Met.  274. 

When  the  judgment  at  law  shall  have  been  satisfied,  appellant 
may  have  a  cause  of  action  against  either  the  payee  in  the  note,  or 
the  owner  of  the  judgment,  under  the  provisions  of  Sec.  2,  Chap.  42, 
R.  S.,  or  of  Sec.  2,  Chap.  47,  Gen.  Stat. 

Which  of  these  parties  will  then  be  liable  to  him  is  a  matter  that 
cannot  properly  be  determined  on  this  appeal. 

Judgment  afhrmed. 

W.  H.  Botts,  for  appellant. 
Bohannon  &  Carter,  for  appellees. 


V.  K.  HiNES  V.  P.  B.  McCORMICK. 

Salt  on  Notes— Defense  That  Notes  Were  Given  to  Defraud  Creditors- 
Statute  of  Limitations. 

It  is  no  defense  to  a  suit  on  notes  to  set  up  an  unlawful  arrange- 
ment between  the  parties  to  defraud  creditors.  Such  a  defense  comes 
in  bad  grace  from  a  defendant  who  has  been  a  party  to  such  a  fraud. 

Statute  of  Limitations. 

Where  a  right  of  action  accrued  in  1864,  and  the  defendant  left  the 
state  in  1866  and  became  a  non-resident,  the  statute  of  limitations  will 
not  run  in  his  favor  while  absent,  and  his  occasional  return  for  tem- 
porary purposes,  without  the  knowledge  of  plaintiff,  will  not  change 
the  rule. 


124  Kentucky  Opinions. 

APPEAL  FROM  BUTLER  CIRCUIT  COURT. 

October  6,  1874. 

Opinion  by  Judge  Cofer  : 

That  $4,500  was  the  price  agreed  to  be  paid  by  the  appellant  for 
the  Wilson  notes  is  established  by  a  decided  preponderance  of  the 
evidence.  This  being  established,  it  is  not  very  material  whether 
the  receipt  of  the  6th  of  January,  1865,  was  fairly  or  unfairly  ob- 
tained, or  whether  it  was  written  as  it  now  is,  or  has  been  changed 
since.  There  is  no  pretense  that  the  whole  debt  has  been  paid,  ex- 
cept on  the  assumption  that  the  price  agreed  to  be  paid  was  $3,000, 
instead  of  $4,500,  as  we  adjudged  it  to  have  been. 

The  effort  to  show  that  the  arrangement  between  the  parties 
was  an  attempt  to  defraud  the  creditors  of  the  appellee,  not  only 
comes  with  bad  grace  from  appellant,  but  utterly  fails  upon  the 
evidence. 

The  plea  of  the  statute  of  limitations  is  not  sustained.  The  right 
of  action  accrued  on  the  loth  of  March,  1864;  the  appellant  re- 
moved from  this  state  in  October,  1866,  and  has  been  a  non-resident 
ever  since.  His  occasional  return  to  this  state  for  temporary  pur- 
poses, without  the  knowledge  of  appellee,  will  not  entitle  him  to  the 
benefit  of  the  statute.  Ridgeley  v.  Price,  16  B.  Mon.  409;  Bennett, 
et  al.,  V.  Devlin,  et  al,  17  B.  Mon.  353. 

That  appellant  had  property  in  this  state,  known  to  appellee, 
which  might  have  been  attached,  does  not  prevent  a  suspension  of 
the  running  of  the  statute  during  his  absence  from  the  state.  It  can- 
not be  said  that  his  absence  did  not  obstruct  the  prosecution  of  an 
action  against  him.  As  well  might  it  be  said  that  a  fraudulent  deed 
was  no  obstruction  or  hinderance  of  creditors.  It  is  true  appellee 
might  have  attached  appellant's  property,  and  it  is  equally  true  that 
a  creditor  may  disregard  a  fraudulent  deed  made  by  his  debtor; 
yet  it  has  never  been  held  that  such  deed  on  that  account  did  not 
obstruct  or  hinder  creditors  in  the  collection  of  their  debts. 

When  a  cause  of  action  like  this,  "accrues  against  a  resident  of 
this  state,  and  he,  by  departing  therefrom  *  *  *  obstructs  the 
prosecution  of  the  action,  the  time  of  the  continuance  of  such  ab- 
sence from  the  state  *  *  *  shall  not  be  computed  as  any  part  of 
the  period  within  which  the  action  may  be  commenced."  Sec.  9, 
Art.  4,  Chap.  63,  R.  S. 

That  appellant's  departure  did  obstruct  the  prosecution  of  the 
action,  notwithstanding  he  had  property  here  subject  to  attachment,. 


S.  Crabtree  and  Wife  r.  A.  &  S.  Rosenfield.  125 

we  have  no  doubt.  The  creditor  was  not  bound  to  resort  to  the 
extraordinary  proceeding  by  attachment,  but  had  a  right  to  wait 
until  by  personal  service,  he  could  not  only  reach  his  debtors'  prop- 
erty, but  could  also  obtain  a  personal  judgment. 

We  perceive  no  error  in  the  record,  and  the  judgment  is  affirmed. 

H.  T,  Craik,  for  appellant. 
J.  Ricketts,  for  appellee. 


S.  Crabtree  and  Wife  v.  A.  &  S.  Rosenfield. 

Judicial  Sale — Description  of  Land. 

Where  husband  and  wife  live  on  the  wife's  land  the  fact  that  the 
husband  owns  an  adjoining  tract  makes  it  no  part  of  the  homestead. 

Description  of  Land. 

A  Judgment  for  the  sale  of  land  will  be  reversed  when  neither  the 
judgment  nor  the  petition  upon  which  it  is  rendered  contains  a  de- 
scription of  the  land. 

APPEAL  FROM  DAVIES  CIRCUIT  COURT. 

October  6,  1874. 

Opinion  by  Judge  Pryor: 

The  parties  are  living  on  the  wife's  land,  and  the  fact  that  the 
husband  owns  an  adjoining  tract  makes  it  no  part  of  the  homestead. 

The  judgment,  however,  fails  to  describe  the  land  to  be  sold ;  nor 
is  there  any  description  whatever  in  the  petition.  For  this  reason 
it  must  be  reversed,  and  the  cause  remanded  with  direction  to  per- 
mit the  appellee  to  amend  his  pleadings,  and  for  further  proceedings 
consistent  with  this  opinion. 

Ray  &  Walker,  for  Appellants. 
Riley  &  Jolly,  for  appellees. 


E.  H.  O'Daniel,  et  al.^  v.  Commonwealth. 

Forfeited  Recognizance — Suit  on  Weight  of  Evidence—Statute. 

Where  the  evidence  in  a  trial  to  recover  on  a  forfeited  recognizance 
is  conflicting,  the  court  of  appeals  will  ai&nn  the  judgment  of  the 
lower  court,  for  when  the  law  and  evidence  is  submitted  to  the  trial 
court  his  finding  has  the  same  effect  as  the  verdict  of  a  jury. 


126  Kentucky  Opinions. 

r 

Statute. 

Pursuant  to  Crlm.  Code»  §  94,  if  the  defendants  in  a  suit  on  a  for- 
feited recognizance  before  judgment  is  entered  surrender  the  defend- 
ant inta  court,  the  court  has  power  to  remit  the  whole  or  a  part  of 
the  sum  named  in  the  bail  bond;  but  setting  up  in  an  answer  that  they 
are  willing  to  arrest  the  accused  is  not  equiyalent  to  actual  surrender. 

APPEAL  PROM  MARION  CIRCUIT  COURT. 

October  8,  1874. 

Opinion  by  Judge  Peters  : 

Upon  the  return  of  these  causes  from  this  court,  appellants  filed 
a  joint  answer,  which,  by  agreement  was  to  be  taken  as  their  answer 
in  both  cases,  and  they  were  heard  together,  the  law  and  facts  having 
been  submitted  to  the  court. 

In  the  answer,  after  reciting  much  irrelevant  and  immaterial  mat- 
ter, it  is  alleged  in  substance  that  Flanagan,  the  prosecutor,  caused 
P.  B.  O'Daniel  to  be  arrested  on  the  charge  of  forgery  in  two  cases, 
first  that  he  had  forged  the  names  of  Thomas  Sherkcliff  and  E.  H. 
O'Daniel  as  his  sureties  to  a  note  to  said  Flanagan  for  $6oo.oo,  and 
second,  that  he  had  forged  the  names  of  E.  H.  O'Daniel,  Joseas 
0'E>aniel,  and  C.  M.  O'Daniel  as  his  sureties  to  a  note  to  said  Flana- 
gan for  $i,ooo;  that  said  P.  B.  O'Daniel  was  taken  before  C.  A. 
Johnston,  police  judge  of  Lebanon,  and  by  him  placed  in  custody  of 
said  Flanagan  as  guard ;  that  while  said  P.  B.  O'Daniel  was  in  the 
custody  of  said  Flanagan,  and  greatly  intoxicated,  Flanagan  caused 
his  deposition  to  be  taken,  and  he  proved  that  the  persons  whose 
names  appeared  on  said  notes  as  his  sureties,  authorized  him  to  sign 
their  names;  and  that  said  appellants  signed  said  bail  bonds  to  re- 
lease P.  B.  O'Daniel  from  the  confinement  caused  by  said  Flanagan ; 
that  after  said  Flanagan  had  taken  the  deposition  of  said  P.  B. 
O'Daniel  as  aforesaid,  and  had  procured  said  bail  bonds,  and  had 
abandoned  the  prosecution,  E.  H.  O'Daniel  and  Thomas  Sherkcliff 
having  been  summoned  as  witnesses  to  appear  before  said  police 
judge  at  the  time  fixed,  did  attend  and  were  ready  to  prove  that 
their  names  were  forged  to  said  notes,  but  that  Flanagan  did  not  at- 
tend to  prosecute,  nor  did  P.  B.  O'Daniel  attend  in  discharge  of  his 
recognizance. 

The  appellants  further  allege  that  P.  B.  O'Daniel  is  a  resident  of 
the  county  of  Marion,  had  been  in  the  presence  of  said  police  judge 
repeatedly  since  the  forfeiture  of  his  recognizance,  was  on  the  jury 
at  the  last  term  of  the  Marion  Circuit  Court,  has  never  been  indicted. 


Maysville  &  Lexington  R.  Co.  v.  John  Shay.  127 

nor  further  prosecution  for  the  alleged  offenses,  can  be  produced 
in  court  at  any  hour,  and  that  they  will  produce  him  in  court  to 
answer  said  charges  when  made.  They  allege  that  said  prosecutions 
against  P.  B.  O'Daniel  were  gotten  up  by  Flanagan,  to  extort  from 
him  the  money  on  an  unjust  debt;  that  said  P.  B.  O'Daniel  was  then 
in  court  as  a  witness  for  Flanagan,  to  prove  that  the  persons  whose 
names  appear  on  said  notes  as  sureties  authorized  him  to  sign  their 
names,  suit  having  been  brought  against  them  on  said  notes ;  that  the 
commonwealth  had  lost  nothing,  as  said  P.  B.  O'Daniel  could  be  at 
any  time  produced. 

A  jury  having  been  dispensed  with,  the  court  rendered  judgment 
against  the  appellants  in  each  case;  and  this  court  is  now  asked  to 
reverse  those  judgments. 

On  the  trial  some  singular  developments  were  made,  but  as  the 
civil  cases  are  yet  to  be  tried,  we  forbear  any  comments  on  them,  and 
content  ourselves  by  saying  that  the  evidence  on  the  issues  presented 
in  the  answer  is  conflicting,  and  in  such  cases  this  court  cannot  inter- 
pose, as  the  conclusions  of  the  judge,  when  the  law  and  facts  are  sub- 
mitted to  him,  must  have  the  same  effect  as  the  verdict  of  a  jury. 

Sec.  94,  Crim.  Code,  provides  that  if,  before  judgment  is  entered 
against  the  bail,  the  defendant  be  surrendered  or  arrested,  the  court 
may,  at  its  discretion,  remit  the  whole  or  part  of  the  sum  specified  in 
the  bail  bond.  If  instead  of  merely  saying  P.  B.  O'Daniel  was  in 
court,  appellants  had  surrendered  him  into  court  to  answer  to  the 
charge,  that  course  might  have  satisfied  the  court  and  ended  the  pro- 
ceeding; but  as  appellants  failed  to  adc^t  that  course,  and  judgments 
have  gone  against  them,  this  court  has  no  power  to  relieve  them. 

Wherefore  the  judgment  must  be  affirmed, 

Thomas  &  Russell  and  Avitt,  for  appellants. 
John  Rodman,  T.  N.  Lindsey,  for  appellee. 


Maysville  &  Lexington  Railroad  Co.  v.  John  Shay. 


Damages— Measure  of  Damages— Instructions— Negligence. 

In  a  suit  for  damages  against  a  railroad  company  for  killing  stock, 
the  measure  of  the  damages  is  the  value  of  the  stock  killed  and  not 
such  damages  as  the  jury  might  believe  plaintiff  entitled  to. 


128  Kentucky  Opinions. 

Instructions. 

An  instruction  is  erroneous  which  charges  the  jury,  in  a  suit  for 
damages  against  a  railroad  company,  that  if  the  horses  were  on  the 
road  far  enough  ahead  of  the  cars  to  enable  the  engineer  to  stop  the 
train  or  to  retard  the  train's  progress  so  that  the  horses  could  be 
driven  off,  and  defendant  failed  to  stop  or  retard  the  train,  it  was  re- 
sponsible for  the  value  of  the  horses  killed.  Such  an  instruction  did 
not  even  require  that  the  horses  should  have  been  seen  or  have  been 
in  a  position  to  be  seen  by  the  engineer. 

Negligence. 

All  that  is  required  of  railroad  employees  in  case  horses  are  on  the 
right  o£  way  in  a  position  to  be  seen  by  them,  is  ordinary  care  and 
diligence,  such  as  ordinary  men  or  men  of  ordinary  care  and  diligence 
would  have  used  under  like  circumstances. 

APPEAL  FROM  BOURBON  CIRCUIT  COURT. 

October  8,  1874. 

Opinion  by  Judge  Cofer  : 

The  jury  were  told  in  the  first  instruction  given  for  appellee,  that 
they  should  find  for  him  such  damages  as  they  might  believe  from 
the  evidence  he  was  entitled  to,  instead  of  the  value  of  the  horses 
killed,  which  was  the  only  criterion  of  recovery.  They  were  also 
told  in  the  same  instruction,  that  if  the  horses  were  killed  by  appel- 
lant's cars,  they  should  find  for  the  appellee  unless  they  believe  that 
such  killing  was  unavoidable.  They  should  have  been  told  that  they 
should  so  find,  unless  they  believe  from  the  evidence,  that  those  in 
charge  of  the  train  had  used  such  care  to  avoid  injuring  the  horses, 
as  ordinary  persons  would  have  used  under  like  circumstances. 

The  jury  were  told  in  the  second  instruction  that  "if  the  horses 
were  on  the  road  far  enough  ahead  of  the  cars,  to  enable  the  engineer 
by  proper  means  to  stop  the  train  before  it  reached  the  horses,  or  to 
retard  the  train's  progress  so  that  the  horses  could  be  driven  out  of 
all  danger  of  collision,  and  defendant  failed  to  stop  or  retard  the 
train,  the  defendant  was  responsible  for  the  value  of  the  horses 
killed."  This  instruction  did  not  even  require  that  the  horses  should 
have  been  seen,  or  have  been  in  a  position  to  be  seen  by  any  one  on 
the  train,  but  if  they  came  on  the  road  when  the  train  was  so  far 
away  that  it  might  have  been  stopped  before  reaching  them,  then 
the  jury  were  told  that  appellee  was  liable. 

We  do  not  understand  it  to  be  the  duty  of  those  running  trains 
to  do  more  than  to  keep  a  prudent  look-out  for  stock,  and  when  it 


R.  B.  Edeun,  et  al.,  v.  Lawrence  Bradley,  et  al.       129 

is  discovered  on  the  track  to  take  reasonable  precautions  to  avoid 
injuring  it.  No  general  rule  as  to  the  particular  things  to  be  done 
can  be  laid  down ;  that  which  would  be  a  prudent  precaution  in  one 
case,  might  be  culpable  negligence  in  another.  Those  running  trains 
must  act  in  view  of  the  circumstances  of  such  case,  and  whatever 
ordinary  care  and  diligence  dictates  in  view  of  the  speed  of  the  train, 
the  condition  of  the  road,  the  character  of  the  ground  on  either  side, 
and  the  habits  of  stock  when  on  or  near  the  track  of  a  railroad  when 
a  train  is  approaching  or  passing.  If  stock  is  on  the  track,  its  oppor- 
tunities to  get  off,  and  the  probabilities,  in  view  of  all  the  circum- 
stances, that  it  will  do  so,  are  matters  to  be  taken  into  the  account ; 
and  if,  in  view  of  all  these  things,  there  seems  to  be  a  greater  proba- 
bility that  it  will  get  off,  than  that  it  will  remain  on  the  track,  those 
running  the  train  may  proceed,  taking  the  usual  methods  of  sound- 
ing the  whistle,  or  ringing  the  bell  to  alarm  the  stock  from  the  track ;. 
but  if,  notwithstanding  the  greater  probability  that  it  would  leave 
the  track  and  the  precautions  are  taken  to  induce  it  to  do  so,  it  re- 
mains on  the  road  and  is  killed,  the  company  is  not  liable. 

The  third  instruction  for  appellee  does  not  correctly  lay  down  the 
standard  of  such  diligence  and  care  as  is  required  in  such  cases.  All 
that  is  required  of  railroad  employees  in  such  cases,  is  ordinary  care 
and  diligence,  that  is,  such  care  and  diligence  as  ordinary  men,  or 
men  of  ordinary  care  and  diligence  would  have  used  under  like  cir- 
cumstances. 

The  judgment  is  reversed  and  the  cause  is  remanded  for  a  new 
trial. 

J?.  H,  Hanson,  for  appellant. 
Thomas  F.  Hargis,  for  appellee. 


R.  B.  Edelin,  et  al.,  v.  Lawrence  Bradley,  et  al. 

Pleading — ^Written  Instruments. 

Where  a  writing  is  the  foundation  of  action,  it  must  not  only  be 
filed,  but  80  much  of  it  set  forth  in  the  petition  as  will  show  that 
plaintiff,  by  reason  of  the  acts  or  omissions  on  his  part  and  on  the 
part  of  the  defendant,  is  entitled  to  relief.  The  f^cts  essential  to 
plaintiffs  cause  of  action  must  be  stated  in  the  petition. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

October  8,  1876. 

Opinion  by  Judge  Peters: 

This  action  was  brought  by  appellees  against  appellants  on  a  writ- 
9 


130  Kentucky  Opinions. 

ing  denominated  by  the  pleader  *'A  Bill  of  Acceptance,"  and  it  is  al- 
ledged  in  substance  in  the  petition  that  Porch  &  Cook,  on  the  nth  of 
February,  1874,  drew  a  bill  of  acceptance  on  one  J.  M.  Bryant  for 
$1,025,  due  four  months  after  date,  negotiable  and  payable  at  the 
Bank  of  Kentucky,  in  Louisville,  Ky.,  accepted  by  said  J.  M.  Bryant, 
and  endorsed  by  appellants,  Edelin,  Huffaker,  Shy  and  W.  E.  Snod- 
ely ;  that  before  its  maturity  the  appellees  caused  it  to  be  discounted 
in  the  bank,  and  on  the  day  of  its  maturity  they  had  it  presented  to 
the  Bank  of  Kentucky,  in  Louisville,  for  payment,  the  place  desig- 
nated therefor  in  said  bill,  when  and  where  payment  was  refused, 
and  said  bill  was  duly  protested  for  non-payment,  and  due  notice  of 
protest  was  delivered  to  the  drawers  and  all  the  endorsers.  They 
filed  the  bill  and  the  notarial  protest  with  their  petition,  and  made 
them  parts  of  the  same.  They  furthermore  allege,  in  substance,  that 
after  the  bill  was  protested  they  paid  off  and  took  up  the  same, 
and  that  they  thereby  became  the  legal  holders  and  owners  of  it; 
that  the  cost  of  protest  amounted  to  $2.25 ;  that  no  part  of  said  bill 
and  fees  for  protest  had  been  paid,  but  that  the  whole  thereof  was 
due  and  owing  to  them,  and  they  pray  judgment,  etc. 

Appellants  demurred  to  the  petition,  and  their  demurrer  having 
been  overruled,  and  failing  to  answer  further,  judgment  was  ren- 
dered against  them,  and  they  have  appeared  to  this  court. 

The  only  question  presented  is,  do  the  facts  stated  in  the  petition 
constitute  a  cause  of  action?  It  has  been  so  often  decided  by  this 
court  that  where  a  writing  is  the  foundation  of  an  action,  the  writing 
must  be  filed,  and  so  much  of  it  set  forth  in  the  petition  as  will  show 
that  the  plaintiff  by  reason  of  the  acts  or  omissions  on  his  part,  and 
of  those  on  the  part  of  the  defendant,  is  entitled  to  an  action  and 
to  relief,  that  it  certainly  cannot  be  necessary  to  cite  the  authorities. 
Has  that  been  done  in  the  case  before  us  ?  As  appellees  allege,  they 
are  the  legal  holders  and  owners  of  the  bill,  but  who  are  or  were  the 
payees  thereof?    On  that  subject  the  petition  is  silent. 

If  there  was  no  payee,  the  writing  is  neither  a  bill  of  exchange 
nor  a  promissory  note ;  but  if  it  is  made  payable  to  any  one,  then  with 
that  addition  to  what  is  said  of  it  in  the  petition,  it  would  have  all 
the  essentials  of  and  is  in  fact  a  bill  of  exchange.  And  there  being  a 
payee  or  payees,  who  is  the  owner  or  are  the  owners,  the  facts  should 
have  been  alleged  to  show  that  they  had  parted  with  their  title,  and 
that  appellees  had  become  invested  therewith.  But  these  necessary 
facts  are  not  set  out  in  the  petition,  and  it  is  therefore  defective ;  nor 


R.  B.  Edelin,  et  al.,  v.  Lawrence  Bradley,  et  al.        131 

is  that  defect  remedied  by  referring  to  and  filing  the  writing  which  is 
the  foundation  of  the  action  as  a  part  of  the  petition. 

Sec.  118  of  the  Civil  Code  requires  that  the  facts  constituting  the 
plaintiff's  cause  of  action  shall  be  stated  in  the  petition.  And  in 
construing  this  section  of  the  Civil  Code  this  court  has  said  that  the 
petition  must  contain  in  its  own  body,  and  not  merely  by  reference 
to  another  paper,  a  statement  of  the  facts  constituting  the  cause  of 
action.  Hill,  for  the  use  of  tVintersmth,  v,  Barrett,  et  al.,  14  B. 
Mon.  67 ;  Collins,  et  aL,  v.  Blackburn,  Ibid.  203.  See  also,  Riggs, 
et  al.,  V.  Maltby  &  Co.,  2  Met.  88. 

It  is  further  objected  to  the  petition  that  the  allegation  in  rela- 
tion to  the  presentation  of  the  bill  for  payment  and  the  notice  of 
protest,  are  insufficient  to  charge  appellants. 

In  BroTvn  &  Son  v.  Hall,  2  A.  K.  Marsh  599,  it  is  said  in  a  judg- 
ment taken  by  default,  the  material  and  traversable  allegations  of 
the  declaration  must,  no  doubt,  be  taken  as  true ;  but  those  which 
are  not  material  or  traversable  cannot  be  so  taken ;  and  the  days  al- 
leged when  the  bill  was  presented  and  the  notice  of  protest  was 
given,  are  of  the  latter  character. 

Had  the  defendants  pleaded,  the  plaintiffs  might  have  shown 
that  the  bill  was  presented  and  the  notice  of  the  protests  given  on 
days  different  from  those  alleged,  and,  of  course,  under  the  aver- 
ments that  the  bill  was  duly  presented,  and  that  notice  of  protest 
was  given  in  due  time,  it  would  have  been  competent  for  him  to 
show  that  these  things  were  done  in  reasonable  time. 

These  averments,  therefore,  and  not  the  days  when  the  present- 
ment of  the  bill  alleged  to  have  been  made,  or  the  notice  of  protest 
given,  are  material;  and  consequently  the  former,  and  not  the 
latter,  are  to  be  taken  as  true.  It  seems,  therefore,  that  the  allega- 
tions of  the  time  of  presentment  of  the  bill  for  payment,  and  of  the 
notice  of  protest,  must  be  regarded  as  sufficient,  while  it  is  safest 
to  state  the  time  as  well  as  manner  of  giving  the  notice. 

But  for  the  reasons  stated  the  judgment  must  be  reversed,  and 
the  cause  remanded  with  directions  to  sustain  appellants'  demurrer 
to  the  petition,  and  for  further  proceedings  consistent  herewith. 

Gibson  &  Gibson,  for  appellants. 
Dupey  &  Middleton,  for  appellees. 


132  Kentucky  Opinions. 

S.  Saloman  v.  p.  B.  Jones. 

Suit  at  Law— Motion  to  Transfer  to  Equity  Docket— Waiver. 

Where  a  suit  is  brought  on  a  note  and  the  defense  is  made  on  the 
ground  of  mistake  in  its  execution,  the  defendant  should  move  to  have 
the  cause  transferred  to  the  equity  docket. 

Waiver. 

Where  a  defense  is  made  in  a  suit  on  a  note,  that  there  was  a  mis- 
take in  its  execution,  and  the  defendant  fails  to  have  the  cause  trans- 
ferred to  the  equity  docket,  he  waives  his  right  to  have  the  cause  tried 
as  an  equity  cause. 

I. 

APPEAL  PROM  BOURBON  CIRCUIT  COURT. 

October  8,  1874. 

Opinion  by  Judge  Lindsay: 

Appellant  defends  the  action  upon  the  ground  of  mistake  in  the 
execution  of  the  note  sued  on.  The  mistake  and  its  character  are 
sufficiently  averred,  and  if  the  proof  should  support  the  plea,  it  will 
show  that  the  note  should  have  been  so  drawn  as  to  bind  The  Ken- 
tucky Gas  Carbonizing  Company,  and  not  the  appellant,  the  manager 
of  said  company. 

Even  if  appellant's  defense  be  treated  as  equitable  in  its  nature, 
it  was  not  essential  that  at  the  time  he  filed  his  answer  he  should 
move  to  transfer  the  cause  to  the  equity  docket.  If  he  had  moved 
to  do  so,  then  the  appellee  might  have  required  the  bond  provided 
for  in  Sec.  11,  of  the  Civil  Code.  Failing  to  move  to  transfer,  he 
loses  the  right  to  have  the  issue  tried  as  in  equitable  proceedings. 
If  neither  party  shall  ask  to  have  an  equitable  issue  tried  by  the 
chancellor,  the  error  as  to  the  character  of  the  proceeding  is  deemed 
to  be  waived,  and  the  action  must  proceed  to  trial,  under  the  rules 
governing  ordinary  actions. 

Hence  the  failure  of  appellant  to  move  to  transfer  to  equity  was 
no  ground  for  demurrer.  The  answer  presents  a  complete  defense, 
and  the  questions  of  fact  arising  thereon  must  be  determined  by 
a  jury. 

Judgment  reversed  and  cause  remanded  for  a  new  trial  upon  prin- 
ciples not  inconsistent  with  this  opinion. 

Brent  &  McMillan,  for  appellant. 
Thomas  F,  Hargis,  for  appellee. 


Henry  Magill  v.  R.  D.  Watson,  et  al.  133 

Henry  Magill  v.  R.  D.  Watson,  et  al. 

Action  to  Recover  Personal  Property— Averments  in  Petition. 

In  an  action  to  recover  possession  of  personal  property  the  petition 
must  allege  the  value  of  the  property  sought  to  he  recovered. 

APPEAL  FROM  DAVIBS  CIRCUIT  COURT. 

October  9,  1874. 

Opinion  by  Judge  Lindsay  : 

Although  this  action  was  prosecuted  by  equitable  proceeding^, 
it  is  in  all  its  characteristics  an  action  to  recover  the  possession  of 
specific  personal  property.  The  petition  described  the  certificates 
of  deposit  with  as  much  accuracy  as  it  was  possible  under  the  cir- 
ctunstances  to  do ;  but  it  was  defective  in  failing  to  allege  the  actual 
value  of  the  thing  sought  to  be  recovered. 

This  defect,  however,  was  not  objected  to,  and  would  now  be 
unavailing  if  the  judgment  of  the  chancellor  had  cured  it.  The 
evidence  as  to  the  possession  by  appellant  without  right  of  the  cer- 
tificate of  deposit  for  four  thousand  dollars,  and  as  to  the  right  of 
appellant  to  recover,  is  clear  and  conclusive;  but  the  judgment 
must  be  reversed,  because  it  fails  to  conform  to  the  provisions  of 
Sec.  360,  of  the  Civil  Code  of  Practice.  It  fails  to  assert  the  value 
of  the  property  to  be  recovered,  and  is  not  in  the  alternative,  as  it 
should  be.  Appellant  fails  to  make  out  his  claim  to  the  balance  due 
on  the  capital  stock  in  the  Southern  Bank  of  Kentucky.  His  cross- 
petition  was  properly  dismissed. 

The  judgmient  in  favor  of  appellees  is  reversed,  and  the  cause 
remanded  with  instructions  to  amend  their  petition,  should  they 
offer  to  do  so  within  a  reasonable  time,  and  in  case  such  amendment 
is  made,  then  for  a  judgment  conformable  to  this  opinion. 

Judge  Cof er  not  sitting. 

Sweeney  &  Stuart,  for  appellant. 
Ray  &  Walker,  for  appellees. 


William  H.  Haynes  v.  Isham  Bolin. 

Appeal— Bill  of  Exceptions— Pleadings. 

Court  of  appeals  will  not  consider  evidence  said  to  have  heen  sub- 
mitted to  the  trial  court  when  the  same  is  not  made  a  part  of*  the 
record  by  a  bill  of  exceptions. 


134  Kentucky  Opinions. 


Where  there  is  a  bad  answer  to  a  bad  petition,  the  judgment  will 
not  be  reversed  at  the  instance  of  the  party  who  first  committed  error 
in  his  pleadings. 

APPEAL  FROM  RUSSELL  CIRCUIT  COURT. 

October  9,  1874. 

Opinion  by  Judge  Cofer  : 

This  was  an  ordinary  action,  and  there  is  no  bill  of  exceptions 
showing  what  evidence  was  heard  by  the  circuit  court ;  and  although 
there  is  a  large  amount  of  what  purports  to  be  the  evidence  heard 
by  that  court,  we  cannot,  as  we  have  very  often  decided  in  similar 
cases,  consider  it  at  all  upon  the  appeal.  The  case  must,  therefore, 
be  decided  oh  the  pleadings.  The  judgment  for  appellee  was  for 
less  than  the  amount  of  the  note  sued  on,  and  the  judgment  must 
be  affirmed  as  to  him,  his  set-off  having  been  controverted  by  the 
reply  of  appellee. 

It  is  insisted  for  appellee,  who  prosecuted  a  cross-appeal,  that 
the  answer  to  his  amiended  petition  setting  up  an  account  against 
appellant,  is  insufficient,  and  that  it  should  have  been  taken  for 
confessed,  and  judgment  rendered  for  the  amount  of  the  account. 
If  the  amended  petition  had  been  in  the  usual  form  of  a  petition 
on  an  account,  we  should  have  regarded  the  answer  to  it  as  insuffi- 
cient as  to  most  of  the  items ;  but  when  we  consider  the  amendment, 
we  are  of  opinion  that  the  answer  was  as  good  as  the  petition ;  nei- 
ther are  sufficient,  but  as  both  parties  have  proceeded  upon  bad 
pleas,  and  they  and  the  court  have  treated  them  as  sufficient,  and 
tried  the  case  on  its  merits,  we  cannot  reverse  the  judgment  at  the 
instance  of  the  party  who  first  committed  error  in  his  pleading. 

The  usual  form  of  a  petition  on  such  an  account  would  be  to 
charge  that  the  defendant  was  indebted  to  the  plaintiff  for  cash 
loaned,  services  rendered,  and  so  forth,  setting  out  the  particulars 
"all  of  which  was  done,  furnished,  etc.,  at  the  special  instance  and 
request  of  the  defendant,"  etc.;  but  the  allegation  in  this  case  is 
that  the  defendant,  "in  the  sum  of  $734.19  for  services,  items,  and 
charges  set  forth  and  contained  in  the  bill  of  particulars  herein 
filed  as  a  part  hereof,  marked  A,  asks  leave  to  file  this  amended 
petition,  because  the  defendant  justly  owes  him  every  dollar  of  said 
account  A,  subject  to  a  credit  for  boarding  which,  upon  fair  set- 
tlement, will  leave  defendant  largely  indebted  to  this  plaintiff  in 
addition  to,  and  over  and  above  the  note  sued  on."   No  judgment 


T.  D.  Cosby,  et  al.,  v,  Luther  T.  Fenlock,  et  ajl.        135 

could  have  been  rendered  on  such  a  pleading,  if  wholly  unanswered, 
and  the  utter  impossibility  of  doing  so  legally  is  made  still  more 
manifest,  if  possible,  by  the  prayer  with  which  it  concludes,  which 
is,  that  he  ''prays  judgment  as  in  his  original  petition,  and  also  on 
this  account,  or  so  much  of  it  as  may  be  found  due  him,  and  for  all 
proper  relief."  So  far  from  taking  such  a  pleading  for  confessed, 
the  court  could  not  have  made  it  the  basis  of  a  judgment  if  un- 
answered, and  if  the  judgment  for  appellee  exceeded  the  amount 
of  the  note  sued  on,  we  would  be  compelled  to  reverse  it.  Perceiv- 
ing no  available  error  to  the  prejudice  of  either  party,  the  judgment 
is  affirmed  on  both  original  and  cross-appeal. 

Owsley  &  Burdett,  for  appellant, 
Collins  &  Hays,  for  appellee. 


T.  D.  Cosby,  et  al.,  v,  Luther  T.  Fenlock,  et  al. 

Infants— Sale  of  Real  Estate— Descent. 

The  Interests  of  infants  in  real  estate  cannot  be  sold  except  by  fol' 
lowing  the  steps  pointed  oat  in  the  statute. 

Descents. 

Where  land  is  derived  by  descent  from  the  mother,  the  real  estate 
of  an  infant,  by  the  law  of  descent,  passes  to  the  next  of  kin  on  the 
mother's  side. 

APPEAL  FROM  HART  CIRCUIT  COURT. 

October  9,  1874. 

Opinion  by  Judge  Pryor: 

The  interest  of  the  infants  in  the  land  could  not  be  sold  except  in 
the  manner  pointed  out  by  the  statute.  A  bond  should  have  been 
executed,  commissioners  appointed,  and  report  made  as  prescribed 
by  the  statute,  under  a  petition  filed  by  the  statutory  guardian. 

Unless  it  is  alleged  and  proven  that  the  interest  of  each  party  in 
the  land  does  not  exceed  in  value  $100,  this  formula  is  dispensed 
with  and  the  land  may  be  sold  on  the  petition  of  ^ny  party  inter- 
ested, by  making  all  others  parties  to  the  proceeding. 

The  grandfather  of  the  deceased  infant  was  also  entitled  to  his 
share  in  the  land.  The  land  was  derived  by  descent  from  the 
mother,  and  in  such  cases  by  the  law  of  descent  the  real  estate  of 
the  infant  passes  to  the  next  of  kin  on  the  mother's  side. 


136  Kentucky  Opinions. 

The  husband  and  father  of  the  infant  was,  however,  entitled  to 
curtesy.  The  unity  of  possession  existed  as  between  all  the  chil- 
dren of  Cosby,  and  the  possession  in  fact  by  one,  or  a  tenant  under 
him,  was  the  possession  of  all. 

No  title  to  the  interest  of  the  infant  defendant  passed  by  the  sale 
under  the  judgment.  The  judgment  is  reversed  and  the  cause  re- 
manded for  further  proceedings  not  inconsistent  with  this  opinion. 

H,  C,  Martin,  for  appellants, 
George  Danan,  for  appellees. 


M.  Leiber  v.  Mary  Haggerty,  et  al. 

Deed — Fraud  or  Mistake  of  Draftsman — Evidence — ^Possession. 

Before  a  person  can  recover  real  estate  not  included  in  a  deed,  be* 
cause  of  a  claim  that  it  was  not  included  on  account  of  the  fraud  or 
mistake  of  the  draftsman,  he  must  establish  the  truth  of  such  charge 
by  a  fair  preponderance  of  the  evidence. 


In  order  to  show  adverse  possession  of  real  estate  it  must  be  made 
to  appear  that  the  person  claiming  to  be  possessed  had  in  fact  the 
possession  manifested  by  some  act  or  fact  sufficient  to  indicate  to 
others  that  fact.  There  must  be  some  open  demonstration  of  actual 
occupancy,  or  at  least  of  intended  use,  whereby  the  person  bargain* 
ing  for  it  may  have  the  means  of  ascertaining  that  it  is  in  the  ad* 
verse  possessi<m  of  another. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

October  9,  1874. 

Opinion  by  Judge  Peters  : 

The  controversy  in  this  case  grows  out  of  conflicting  claims  to 
fractional  parts  of  lots  adjoining  business  houses  of  the  parties  in 
Paducah,  derived  from  one  common  source,  and  the  loss  of  which 
by  either  will  materially  affect  the  value  of  their  property. 

By  appellees  it  is  admitted  that  its  deed  does  not  cover  or  include 
the  property,  but  it  is  contended  that  it  was  omitted  by  the  fraud  or 
mistake  of  the  draftsman.  It  is  clearly  established  by  the  evidence 
that  the  original  draft  of  the  deed  from  Watts,  Given  &  Co.,  the 
owners  of  the  property,  to  appellees  was  prepared  by  J.  Campbell, 
and  sent  to  one  of  the  grantors  therein  named,  who  was  to  procure 
its  execution ;  that  that  draft  was  not  signed ;  but  another  deed  was 


M.  Leiber  v.  Mary  Haggerty,  et  al.  137 

drawn  by  Bann,  a  clerk  in  the  house  of  the  grantors,  executed  by 
them  and  put  to  record.  In  the  one  prepared  by  Campbell,  he  states 
pretty  confidently  in  his  testimony  the  fractional  parts  of  said  lots 
were  included,  and  he  is  corroborated  by  the  testimony  of  Hughes, 
the  cashier  of  the  branch  of  the  Bank  of  Louisville,  at  Paducah,  with 
whom  Campbell,  the  president  of  said  branch  bank,  consulted,  and 
between  whom  there  were  frequent  conversations  on  the  subject. 

On  the  other  side,  the  deposition  of  D.  A.  Given,  a  member  of  the 
late  firm  of  Watts,  Given  &  Co.,  was  taken,  who  proves  that  he  nego- 
tiated and  consummated  the  trade  on  the  part  of  his  firm  for  the  sale 
of  the  houses  to  appellees ;  he  further  proves  that  he  agreed  to  sell 
the  comer  property,  consisting  of  three  store  rooms  fronting  on 
Broadway,  and  the  warehouse  immediately  in  the  rear,  for  $65,000, 
and  the  new  warehouse  owned  by  J.  W.  Shriver  &  Co.,  on  Market 
street  for  $15,000;  this  proposition  was  accepted  and  carried  out; 
that  he  never  tried  to  sell  the  fractional  part  of  the  ground,  and 
never  intended  it  in  the  sale  made  by  him;  that  he  measured  the 
warehouse  property  in  the  rear  of  the  Broadway  stores  to  ascertain 
if  the  house  covered  100  feet,  and  according  to  his  recollection  he 
gave  Judge  Campbell  the  measurement  and  boundaries  written  prob- 
ably in  pencil,  so  that  he  might  be  governed  by  it;  that  the  deeds 
were  written  and  immediately  upon  being  handed  him,  he  inclosed 
one  to  Shriver,  at  New  Orleans,  to  be  signed  and  returned,  intend- 
ing, when  he  received  it,  to  sign  and  acknowledge  the  others ;  that 
they  were  lying  on  his  desk,  and  he  was  about  to  sign  them  when 
T.  F.  Ferrell,  who  was  in  the  office,  looked  over  the  deed  and  re- 
marked that  if  he  was  in  his,  the  witness's  place,  he  would  not  let  his 
wife  sign  it,  for  the  reason,  as  he  said,  that  the  deed  as  drawn  up 
made  his  wife  guarantee  the  title,  etc.,  instead  of  relinquishing  her 
dower,  and  her  individual  property  might  be  liable  for  a  defect  of 
title.  He  then  called  Mr.  Robb,  and  directed  him  to  copy  the  deed 
verbatim,  except  to  leave  out  the  names  of  the  wives  of  the  grantors, 
and  at  the  close  to  insert  the  usual  clause  of  relinquishment  of  dower, 
all  of  which  was  done,  and  the  deeds  signed,  acknowledged,  stamped 
and  delivered  to  the  proper  parties  for  record. 

Robb's  deposition  was  taken,  and  he  proved  that  he  copied  the 
deed,  and  it  was  only  changed  as  stated  by  Given,  and  Given  and 
Robb  are  sustained  by  Terrell.  The  evidence,  therefore,  in  the  case, 
is  not  sufficiently  clear  and  satisfactory  of  either  mistake  or  fraud 
in  the  deed  to  authorize  the  chancellor  to  modify  or  change  it.  But 
it  is  insisted  that  appellees  were  in  the  actual  adverse  possession  of 


138  Kentucky  Opinions. 

the  vacant  fractional  parts  of  said  lots  at  the  time  appellant  pur- 
chased, and  his  deed  is  void  under  the  act  against  champerty.  The 
possession  of  land  which  will  render  the  conveyance  of  the  same 
land  champertous  and  void,  must  be  an  actual  adverse  possession, 
manifested  by  some  act  or  fact  sufficient  to  indicate  to  others  that 
the  person  claiming  to  be  possessed,  had  in  fact,  the  possession. 
There  must  be  some  open  demonstration  of  actual  occupancy,  or  at 
least  of  intended  use,  whereby  the  person  bargaining  for  it  may  have 
the  means  of  ascertaining  that  it  is  in  the  adverse  possession  of  an- 
other. Cardwell  z\  Sprigg's  Heirs,  i  B.  Mon.  369;  Moss,  et  al.,  v. 
Scott,  2  Dana  275 ;  Lillard  v.  McGee,  3  J.  J.  Marsh.  549. 

Appellant,  in  seeking  to  be  informed  whether  appellees  were  in- 
vested with  title  or  claimed  the  ground,  would  naturally  look  to  the 
deed  under  which  it  claimed,  and  when  he  shall  have  examined  that 
document  he  will  have  found  that  the  estate  purchased  by  appellees 
is  defined  by  lines  and  distances,  scrupulously  exact  even  to  inches, 
and  excluding  the  fractional  parts  now  claimed  by  him.  These  frac- 
tional parts  are  not  fully  inclosed  with  the  houses  purchased  by  ap- 
pellees. There  is  only  a  part  of  a  fence  on  them,  and  there  are  no 
acts  or  real  facts  proved  to  indicate  an  adverse  possession  in  appel- 
lees. The  deed  under  which  it  derives  title  to  property  adjacent,  is 
dated  the  15th  of  November,  1867.  Appellant's  deed  is  dated  the 
2Sth  of  February,  1868.  There  is  no  claim  of  possession  by  appel- 
lees prior  to  November  15,  1867.  Between  that  time  and  the  date 
of  appellant's  deed,  the  record  discloses  no  act  of  notoriety  on  its 
part,  and  no  fact  indicating  an  intention  to  enter  upon  and  hold 
these  controverted  parts  of  lots  adverse  to  Watts,  Given  &  Co.,  and 
in  the  absence  of  such  evidence  appellant's  deed  must  prevail. 
Wherefore  the  judgment  is  reversed  and  the  cause  is  remanded  with 
directions  for  further  proceedings  consistent  herewith. 

G,  W,  Craddock,  for  appellant. 
L,  D.  Husbands,  for  appellees. 


W.  R.  Covington  v.  Mary  B.  Scott. 

Judgment— Clerical  Misprision — Motion. 

A  clerical  misprision  is  the  erroneous  entering  or  recording  of  a 
judgment  rendered  by  a  court,  and  may  be  corrected  by  motion. 

Judgment  Correctly  Entered* 

A  Judgment  correctly  entered  but  which  is  erroneous  cannot  be  cor- 
rected by  motion,  but  must  be  appealed  from. 


W.  R.  Covington  v.  Mary  B.  Scott.  139 

APPEAL  FROM  WARREN  CIRCUIT  COURT. 

October  9,  1874. 

Opinion  by  Judge  Lindsay  : 

There  is  nothing  upon  the  face  of  the  judgment  of  August  13, 
1864,  indicating  an  error  upon  the  part  of  the  clerk  in  entering  it  in 
the  order  book.  It  is  true  it  speaks  of  the  sum  ordered  to  be  paid 
into-  court,  as  the  amount  of  these  notes,  when  as  matter  of  fact  the 
petition  set  up  four  notes;  but  it  further  appears  that  the  circuit 
court  judicially  determined  that  the  payment  into  court  of  said  sum, 
discharged  the  lien  on  the  land  sold  by  Simpson's  executor  to  Cov- 
ington, and  that  it  made  up  the  full  balance  of  the  purchase  money 
due  by  Covington.  It  is  possible  that  this  judicial  determination 
was  erroneous,  and  that  upon  appeal  the  judgment  of  the  circuit 
court  would  have  been  reversed ;  but  the  mistake  of  the  court  in  as- 
certaining and  adjudging  the  amount  of  the  indebtedness  was  an 
error  of  judgment,  and  not  a  clerical  misprision.  We  understand  a 
clerical  misprision  to  be  the  erroneous  entering  or  recording  of  the 
judgment  actually  rendered  by  the  court.  An  error  of  this  charac- 
ter will  always  be  corrected  upon  motion,  when  there  is  anything  in 
the  record  to  correct  by,  and  it  is  immaterial  whether  the  mistake  be 
occasioned  by  the  court  or  the  clerk ;  but  when  the  judgment  actu- 
ally rendered  is  correctly  entered  or  recorded,  it  can,  in  no  case,  be 
treated  as  a  clerical  error,  although  it  may  be  manifestly  erroneous. 

Appellee,  in  her  notice,  does  not  assume  that  there  was  any  mis- 
take made  by  the  clerks  but  that  there  had  been  a  mistake  made  in 
the  calculation  of  the  interest  due  on  the  notes  sued  on.  It  is  palpa- 
ble from  the  record,  that  this  calculation  was  not  made  by  the  clerk, 
and  that  the  mistake  in  this  regard  (if  one  was  made)  was  the  mis- 
take of  the  parties  or  of  the  court,  in  ascertaining  the  amount  due, 
and  that  it  was  in  no  sense  a  clerical  error.  The  circuit  court  did 
not  adjudge  that  there  was  a  clerical  misprision,  but  that  Covington 
had  not  paid  into  court  the  full  amount  of  his  indebtedness,  and 
therefore  it  further  adjudged  that  he  should  pay  to  appellee  the  fur- 
ther sum  of  $820,  with  interest  from  August  13,  1864.  This  was 
substantially  a  reversal  of  so  much  of  the  judgment  rendered  nearly 
nine  years  before,  as  determined  that  the  full  amount  due  on  the 
notes  had  been  paid  into  court,  and  the  lien  thereby  discharged.  It 
is  not  pretended  that  the  circuit  court  has  any  such  power  as  this. 


140  Kentucky  Opinions. 

Th€  judgment  of  February  19,  1873,  is  reversed  and  the  cause  re- 
manded with  instructions  to  dismiss  the  motion. 

A.  Duvall,  J.  P.  Bates,  for  appellant. 
A,  James,  for  appellee. 


John  Upshaw  v.  Levi  Jackson. 

Vendor's  Lien — ^Descent  to  Heirs. 

Where  notes  given  for  the  purchase  of  real  estate  expressly  reserve 
a  lien  on  the  land,  such  land  may  be  subjected  to  the  payment  there- 
of, even  when  it  has  descended  to  vendee's  heirs. 

APPEAL  FROM  FULTON  CIRCUIT  COURT. 

October  10.  1874. 

Opinion  by  Judge  Peters  : 

It  is  not  perceived  by  the  court  that  the  judgment  is  for  more  than 
the  principal  and  interest  due  on  the  two  notes  sued  on  after  deduct- 
ing all  proper  credits. 

In  the  deed  made  by  appellee  to  appellant  and  Hugh  S.  Upshaw 
for  the  land,  for  which  the  notes  were  executed,  on  which  this  suit 
was  brought,  a  Hen  for  their  payment  is  expressly  reserved,  and  the 
judgment  is  to  subject  the  land  therein  conveyed  to  the  payment 
of  the  debt.  It  is  true  that  by  the  terms  of  the  judgment  appellee 
is  authorized  to  sue  out  an  execution  on  his  judgment  before  selling 
the  land,  and  if  he  can  thereby  make  his  debt,  the  land  will  not  be 
sold.  It  appears  from  the  evidence  that  estate  sufficient  to  pay  the 
debt  descended  from  the  father  of  appellant,  who  was  the  original 
debtor  to  satisfy  this  and  any  other  debts  remaining  unpaid. 

Perceiving  no  error  in  the  judgment  prejudicial  to  appellant,  the 
same  is  afhrmed. 

T.  O.  Goalder,  Major  &  Jett,  for  appellant, 
A.  /.  James,  for  appellee. 


MoRG  Long  v.  C.  H.  Spillman. 

Jurisdiction — Real  Estate— Title  Bond— Description— Judgment 

When  the  title  to  real  estate  Is  involved  in  an  action,  the  circuit 
court  has  jurisdiction,  and  there  is  a  right  of  appeal  from  Its  judg- 
ment even  though  there  is  only  $13.10  involved. 


MoRG  Long  v.  C.  H.  Spillman.  141 

Title  Bond. 

Where  a  person  has  been  in  possession  of  and  paid  the  taxes  upon 
real  estate  for  nineteen  years,  and  has  not  received  a  conveyance  be- 
cause she  feared  her  creditors,  and  to  protect  her  against  them  her 
vendor  failed  to  make  conveyance,  her  real  estate  is  subject  to  the 
demand  of  creditors. 

Description — ^Judgment. 

A  Judgment  ordering  the  sale  of  real  estate  will  be  reversed  where 
the  real  estate  is  not  described  except  as  "the  house  and  lot  in  the 
pleading  mentioned."  Such  a  Judgment  is  also  erroneous  when  it  fails 
to  direct  the  manner  in  which  the  sale  shall  be  advertised. 

APPE3AL  FROM  MERCER  CIRCUIT  COURT. 

October  12,  1874. 

Opinion  of  Judge  Lindsay  : 

The  parties  interested  and  the  attorneys  engaged  in  this  case,  have 
exhibited  equal  energy,  and  perseverance  worthy  of  a  more  impor- 
tant cause. 

The  title  to  the  house  and  lot  occupied  by  Lucinda  Long,  and 
claimed  by  the  appellant,  is  directly  called  in  question,  and  therefore 
the  circuit  court  had  jurisdiction,  although  the  claim  asserted 
amounts  to  only  $13.10.  For  the  same  reason  an  appeal  lies  to  this 
court.  Sections  15  and  16,  Civil  Code  of  Practice ;  Smith  v.  Moberly 
&  IVife,  15  B.  Mon.  70. 

It  seems  that  the  lot  was  purchased  in  1851,  and  that  the  debtor, 
Lucinda  Long,  at  once  entered  upon  the  possession,  and  that  she 
openly  held,  used  and  controlled  it  up  to  the  time  of  the  institution 
of  this  action  in  October,  1870.  It  further  appears  that  during  all 
this  time  she  paid  taxes  on  it,  appellant  paid  no  taxes  and  exercised 
no  supervision  or  control  over  the  lot,  so  far  as  is  shown  by  the  rec- 
ord, except  on  one  occasion,  when  Lucinda  abandoned  the  possession 
for  a  short  time  on  account  of  a  general  misunderstanding  with  her. 

Appellant's  only  evidence  of  title  is  the  title  bond  of  Passmore, 
which  she  holds ;  but  the  fact  that  she  does  hold  said  bond  is  ex- 
plained by  her  statements  to  Passmore,  that  she  did  not  desire  the 
title  conveyed,  because  Lucinda  was  in  debt,  and  she  feared  that  her 
creditors  would  turn  her  out  of  doors. 

Considering  these  explanations  and  the  nineteen  years  of  posses- 
sion by  the* debtor,  Lucinda,  the  court  did  not  err  in  adjudging  that 
appellant  held  the  bond  for  title  in  fraudulent  trust  for  her,  and  that 


142  Kentucky  Opinions. 

the  house  and  lot  was  liable  to  be  subjected  to  the  payment  of  ap- 
pellee's debt. 

The  judgment  is  erroneous,  however,  in  two  particulars.  It  fails 
to  describe  the  realty  adjudged  to  be  sold,  except  by  designating  it 
"The  house  and  lot  in  the  pleading  mentioned."  This  leaves  the 
commissioner  to  determine  judicially  what  house  and  lot  is  men- 
tioned in  the  elaborate  and  by  no  means  concise  statements  of  fact, 
which  the  parties  deemed  it  necessary  to  make  in  order  to  present 
their  cause  of  action  and  the  defenses  relied  on. 

Further  than  this,  the  judgment  fails  to  direct  the  manner  in 
which  the  sale  of  the  house  and  lot  shall  be  advertised.  It  provides 
that  it  "must  be  advertised  according  to  law."  The  law  does  not  fix 
the  manner  of  advertising  lands  sold  under  the  judgment  of  the 
chancellor.  This  matter  is  left  entirely  to  his  discretion,  and  unless 
this  judgment  directs  the  commissioner  how  he  shall  advertise,  it  is 
necessarily  erroneous. 

The  motion  to  dismiss  the  appeal  is  overruled,  and  the  judgment 
reversed  and  the  cause  remanded  for  the  correction  of  the  errors 
herein  pointed  out.  Inasmuch  as  appellant's  judgment  for  costs  in 
this  court  will  greatly  exceed  appellant's  claim,  she  should  be  al- 
lowed, in  case  she  asks  leave  to  do  so,  to  have  said  judgment,  or  so 
much  thereof  as  may  be  necessary,  set  off  against  said  claim,  and  the 
necessity  for  the  sale  of  the  realty,  thereby  avoided ;  but  appellee  will 
be  entitled  to  his  costs  in  the  court  below. 

Jos.  D,  Hardin,  C,  A.  &  P.  IV.  Hardin,  for  appellant. 
Spillman  &  SpUlman,  for  appellee. 


R.  L.  Garvin  v.  H.  S.  Showdy,  Adm'r. 

Final  Judgment— Power  to  Change. 

When,  in  a  suit  by  an  adminlBtrator  against  heirs  and  creditors  to 
settle  an  estate  as  insolvent,  an  issue  is  made  between  a  creditor  and 
the  estate,  which  is  referred  to  and  reported  by  a  master,  who  hears  the 
evidence,  and  upon  exceptions  being  filed  to  the  report,  it  was  heard 
and  overruled  by  the  court  and  judgment  entered  against  the  claim- 
ant, such  Judgment  is  final  and  the  trial  court  has  no  power  after  the 
term  of  court  ends  to  permit  the  creditor  to  withdraw  his  claim  and 
then  modify  his  judgment. 


R.  L.  Garvin  v.  H.  S.  Showdy,  Adm'r.  143 

APPEAL  FROM  HART  CIRCUIT  COURT. 
October  12,  1874. 

Opinion  by  Judge  Peters  : 

It  appears  from  the  bill  of  exceptions  and  agreement  of  the  par- 
ties that  appellee,  as  administrator  of  P.  G.  Rowlete,  deceased,  had 
instituted  a  suit  in  the  Hart  Circuit  Court  against  the  heirs  and 
creditors  of  said  decedent,  to  settle  the  estate  as  insolvent.  Appel- 
lant, on  his  petition  filed  in  that  suit,  was  made  a  defendant,  and  pre- 
sented the  same  demand  against  decedent's  estate,  upon  which  this 
action  was  brought,  and  sought  judgment  therefor.  His  claim,  with 
others,  was  referred  to  the  master  to  hear  proof  and  to  be  reported 
on.  After  hearing  the  evidence,  the  master  reported  adverse  to  ap- 
pellant's claim,  and  he  excepted  to  so  much  of  the  report  as  rejected 
his  claim.  At  the  May  term,  1872,  of  the  Hart  Circuit  Court,  his  ex- 
ceptions were  heard  by  the  court  and  overruled.  At  the  following 
November  term  of  the  court,  he  procured  leave  of  the  court  to  with- 
draw his  claim  for  the  purpose  of  prosecuting  a  suit  at  law  on  it 
against  appellee,  and  the  court  at  the  same  time  so  modified  the  in- 
junction inhibiting  the  creditors  of  said  intestate  from  prosecuting 
several  suits  for  their  respective  demands,  as  to  permit  appellant  to 
sue  at  law  on  his  demand.  These  facts  appear  from  the  bill  of  ex- 
ceptions and  the  agreement  of  the  parties. 

The  first  question  for  consideration  is  whether  the  order  overrul- 
ing appellant's  exceptions  to  the  master's  report,  and  confirming  the 
same,  in  a  final  order.  The  court  certainly  therein  adjudged  that 
appellant  has  failed  to  establish  his  claim,  and  the  litigation  between 
him  and  appellee  as  to  that  matter  was  terminated ;  and  that  being 
the  case,  the  power  of  the  court  over  that  order,  being  final  in  its 
character  ceased  at  the  expiration  of  the  term  at  which  it  was  made, 
and  the  permission  given  by  the  court  to  appellant  to  withdraw  his 
claim  and  prosecute  an  action  at  law  on  it,  could  not  deprive  appel- 
lee of  the  right  to  rely  upon  the  judgment  rendered  in  the  former 
suit  between  the  same  parties  for  the  same  cause  of  action,  as  a  bar, 
and  which  as  such  must  be  availing. 

Judgment  affirmed, 

Bohannon  &  Carter,  for  appellant. 
J.  W.  Garvin,  for  appellee. 


144  Kentucky  Opinions. 

W.  K.  Denny  v.  Alma  Miller. 

Slander — Pleading  Defenses — Record — Evidence — Character  of  Plaintiff 
—Competency  of  Parties  as  Witnesses. 

Bach  separate  defense  must  be  set  forth  in  a  separate  paragraph, 
each  must  be  complete  in  itself,  and  the  averments  of  one  cannot  aid 
the  deficiency  of  others. 

Pleading  Defense. 

An  answer  In  a  slander  suit  which  admits  that  the  slanderous  words 
were  spoken,  but  which  avers  that  the  defendant  but  repeated  words 
of  another,  which  at  the  time  he  believed  were  true,  is  bad  which 
fails  to  aver  that  the  speaking  of  the  words  was  without  malice. 

Record. 

An  answer  tendered  by  appellant  and  rejected  by  the  court,  not 
made  a  part  of  the  record  by  bill  of  exceptions  or  order  of  court,  is  not 
a  part  of  the  record  and  will  not  be  considered. 

Evidence. 

It  is  error  for  the  trial  court  to  permit  witnesses,  over  objections, 
to  give  their  opinion  as  to  the  effect  of  the  speaking  by  appellant  of 
slanderous  words,  upon  the  character  and  feelings  of  plalntifC.  The 
witnesses  should  have  been  confined  to  the  statement  of  facts,  leaving 
the  jury  to  form  its  own  opinion  as  to  their  effect. 

Character  of  Plaintiff. 

Injury  to  character  is  the  gravamen  of  an  action  for  slander  and 
goodness  of  plaintiffs  character  may  always  be  proven  in  aggravation, 
just  as  bad  character  may  be  shown  in  mitigation. 

Competency  of  parties  as  witnesses. 

In  an  action  where  an  infant  is  a  party  the  defendant  is  not  a  com- 
petent witness,  under  the  statute  providing  that  in  an  action  or  spe- 
cial proceeding,  in  which  the  adverse  party  is  an  infant,  where  such 
infant  does  not  testify,  the  other  party  is  incompetent. 

Evidence. 

In  a  suit  for  slander  it  was  error  for  the  court  to  exclude  evidence 
offered  by  the  defendant  showing  that  he  had  explained  to  some  per- 
sons that  the  statements  made  by  him  were  based  upon  the  fact  that 
another  had  been  guilty  of  the  offense.  Such  evidence  would  tend  to 
show  that  defendant  had  no  intention  to  injure  the  plaintiff  and 
should  have  been  allowed. 

APPEAL  FROM  LINCOLN  CIRCUIT  COURT. 

October  12,  1874. 

Opinion  by  Judge  Cofer  : 

A  verdict  and  judgment  having  been  rendered  against  the  appel- 
lant in  an  action  for  slander,  and  his  motion  for  a  new  trial  having 


W.  K.  Denny  v.  Alma  Miller.  145 

been  overruled,  he  has  appealed  and  seeks  a  reversal  upon  various 
grounds,  which  will  be  stated  and  disposed  of  in  the  order  in  which 
they  arose.  The  answer  of  appellant  contained  five  paragraphs.  The 
appellee  filed  a  general  demurrer,  but  whether  it  was  noted  and 
treated  as  a  demurrer,  is  the  first  question  to  be  decided. 

Before  proceeding  to  a  discussion  of  the  question,  we  remark  that 
each  separate  defense  is  required  to  be  set  forth  in  a  separate  para- 
graph (Sec.  125,  Civil  Code) ;  and  that  each  paragraph  must  be  com- 
plete in  itself  (27  Barb.  376)  ;  and  that  the  merits  of  one  paragraph 
cannot,  on  demurrer,  be  brought  in  aid  of  the  allegations  of  another, 
without  appropriate  reference  is  made  in  the  paragraph  demurred 
to,  to  such  other  averments  (18  Barb.  260). 

In  the  paragraph  to  which  the  demurrer  was  sustained,  the  appel- 
lant admitted  the  speaking  of  words  charged  in  the  petition,  but  at- 
tempted to  avoid  liability  by  averring  that  he  repeated  that  which 
one  Joseph  J.  Jones  had  told  him ;  that  he  believed  the  statements  so 
made  to  him  by  Jones  were  true,  and  that  at  the  time  of  speaking 
the  words  he  gave  Jones  as  his  authority ;  but  it  is  not  denied  in  this 
paragraph  that  the  words  were  spoken  in  malice  by  the  appellant,  nor 
is  it  averred  that  Jones  spoke  the  words  with  malice. 

If  it  be  conceded  that  one  who  hears  a  slander  and  repeats  it,  giv- 
ing the  name  of  its  author  at  the  time,  is  not  liable  if  he  did  so  with- 
out malice,  still  the  paragraph  in  question  was  insufficient  to  bar  the 
action.  The  words  spoken  are  admitted  to  have  been  false,  and  be- 
ing slanderous,  were  prima  facie  actionable ;  and  although  appellant 
may  have  heard  them  from  Jones,  and  may  have  believed  them  to  be 
true,  yet  if  he  uttered  them  with  actual  malice  he  would  be  liable. 
It  was  therefore  necessary  to  aver  that  the  speaking  of  the  words 
were  without  malice.  Williams  v.  Greenwade  &  Wife,  3  Dana  432 ; 
2  Chitty's  Pleadings  506. 

Nor  can  this  paragraph  be  sustained  on  the  ground  that  the  appel- 
lant spdce  the  words  charged  in  good  faith,  in  the  discharge  of  a 
social  duty,  in  an  effort  to  discover  the  authors  of  crime.  In  order 
to  do  this  it  ought  to  appear  from  the  pleading,  that  he  made  the 
communication  privately  and  in  good  faith,  to  discreet  persons,  for 
the  simple  purpose  of  procuring  their  advice  and  aid  and  stimulating 
their  vigilance  in  discovering  the  truth  regarding  the  supposed 
crime,  andl  in  the  detection  of  its  perpetrators,  and  that  he  gave  no 
more  publicity  to  the  statement  than  was  reasonably  necessary  for 
that  purpose.  Grimes  v.  Coyle,  6  B.  Mon.  301 ;  Williams  v.  Green- 
wade &  Wife,  3  Dana  432. 

10 


146  Kentucky  Opinions. 

These  facts  are  substantially  set  forth  in  another  paragraph,  but 
as  these  paragraphs  do  not  purport  to  be  pleas  in  bar,  but  are  ex- 
pressly pleaded  in  mitigation,  they  furnish  no  basis  upon  which  to 
predicate  instructions  to  the  jury  authorizing  them  to  find  for  the 
appellant. 

The  amended  answer  tendered  by  appellant  and  rejected  by  the 
court  is  not  made  part  of  the  record,  either  by  bill  of  exceptions  or 
order  of  court,  and  is  not  a  part  of  the  record ;  and  we  cannot,  there- 
fore, decide  that  the  court  erred  in  refusing  to  allow  it  to  be  filed. 

The  court,  against  the  objections  of  appellant,  allowed  the  appellee 
to  give  in  evidence  the  opinion  of  several  witnesses  as  to  the  effect 
of  the  slanderous  words  of  appellant  upon  her  character  and  feelings, 
and  to  prove  that  Cardwell  Campbell's  son,  who  is  charged  with  the 
words,  for  uttering  which  the  appellant  was  sued,  and  who  had  se- 
duced her,  was  an  elder  in  one,  and  the  appellant  was  an  elder  in  an- 
other branch  of  the  Presbyterian  Church.  This  was  error.  The  wit- 
nesses should  have  been  confined  to  the  statement  of  facts,  leaving 
the  jury  to  form  their  own  opinions  as  to  their  effects.  Evidence 
calculated  to  arouse  either  political,  religious  or  church  prejudices, 
should  have  been  carefully  excluded  from  the  jury. 

The  appellant  also  objected  to  proof  of  the  good  character  of  ap- 
pellee, but  the  court  overruled  the  objection,  to  which  an  exception 
was  taken,  and  counsel  for  appellant  now  insists  that  the  court  erred 
in  so  ruling.  Injury  to  character  is  the  gravamen  of  the  action  of 
slander,  and  goodness  of  character  may  be  proved  in  aggravation, 
just  as  badness  of  character  may  be  shown  in  mitigation.  Williams 
vJiCreenwade  &  Wife,  3  Dana  432. 

«bThe  rejected  deposition  of  Mip  Hester  was  incompetent.  The  dis- 
g^ting  details  of  her  wrongs  and  sufTerings  could  have  served  no 
legitimate  purpose  in  this  case.  They  did  not  tend  to  prove  any  fact 
in  issue  between  the  parties,  and  the  rejection  of  her  deposition  did 
not  prejudice  the  rights  of  appellant. 

The  appellant  was  not  a  competent  witness.  The  statute  (Sec.  25, 
Chap.  37,  General  Statutes)  provides  that  no  party  shall  be  allowed 
to  testify  by  virtue  of  Section  22,  in  any  action  or  special  proceeding 
where  the  adverse  party  is  an  infant,  unless  the  infant  testifies  in  his 
own  behalf.  The  appellee  was  an  infant,  and  did  not  testify  on  her 
own  behalf,  and  appellant  was,  therefore,  clearly  a  competent  witness 
in  his  own  behalf.  It  was  error  to  refuse  to  allow  the  appellant  to 
prove  by  Miller  that,  in  his  opinion,  it  was  unfortunate  for  appellee 
that  he  had  told  what  Jones  had  told  him.    The  jury,  and  not  the 


W.  K.  Denny  t/.  Alma  Miller.  147 

witness,  should  decide  that  question ;  but,  besides  this,  the  proposed 
evidence  was  predicated  upon  the  assumption  that  appellant  had  told 
just  what  Jones  told  him,  while  one  of  the  questions  in  the  case  was 
whether  he  had  in  fact  told  the  story  as  he  heard  it  from  Jones,  or 
not. 

The  only  issue  presented  by  the  answer  was  made  by  the  first  par- 
agraph, which  was  in  these  words :  "The  defendant,  W.  K.  Denny, 
answers  plaintiff's  petition,  and  denies  that  the  words  spoken  were 
spoken  by  the  defendant  of  and  concerning  the  plaintiff.  But  he 
admits  that  he  spoke  the  words  hereinafter  stated."  All  that  he  de- 
nied by  this  paragraph  was  that  the  words  were  spoken  of  or  con- 
cerning appellant ;  that  they  were  spoken  is  admitted.  The  applica- 
tion of  them  to  appellee  is  the  only  thing  denied,  and  was  the  only 
thing  necessary  to  be  proved,  and  if  this  was  proved  she  was  enti- 
tled to  a  verdict,  and  the  instruction  so  told  the  jury.  It  was  unnec- 
essary to  tell  them  that  they  must  also  believe  the  words  were  spoken 
with  malice.  This  was  denied ;  and  if  it  had  been,  the  speaking  of 
the  words,,  which  was  not  denied,  raised  a  presumption  of  malice ; 
and  proof  that  the  words  were  spoken  of  appellee  with  the  presump- 
tion of  malice  arising  from  the  false  charge  of  crime,  was  sufficient 
to  entitle  her  to  a  verdict.  It  would  have  been  better,  however,  if 
the  court  had  told  the  jury  that  the  appellant  admitted  the  speaking 
of  the  words,  but  denied  their  application  by  them  to  appellee,  and 
if  they  believed  from  the  evidence  he  did  apply  them  to  her,  they 
should  find  for  the  plaintiff. 

As  the  judgment  must  be  reversed  for  error  in  admitting  incompe- 
tent evidence,  and  the  instructions  given  are  voluminous,  and  those 
asked  by  the  appellant  and  refused  are  too  erroneous  to  be  discussed 
within  the  bounds  of  an  (pinion,  we  will  content  ourselves  with  a 
simple  statement  of  the  principles  of  law  regarded  as  applicable  to 
the  case. 

Such  words  in  the  petition  as  are  slanderous  should  be  set  forth 
in  an  instruction,  and  the  jury  should  be  told  that  if  the  defendant, 
in  uttering  them,  applied  or  intended  to  apply  them  to  the  plaintiff, 
they  should  find  for  her  such  sum  as,  under  all  the  circumstances  of 
the  case,  they  should  deem  right,  not  exceeding  twenty  thousand  dol- 
lars, the  amount  claimed  in  the  petition ;  but  unless  they  believed  the 
words  were  applied  to  her,  they  should  find  for  the  defendant ;  and 
that  if  they  should  find  for  the  plaintiff,  they  should,  in  determining 
the  amount  of  their  verdicts,  take  in  consideration,  on  the  one  hand 
such  facts  and  circumstances  in  evidence  as  tended  to  prove,  and 


148  Kentucky  Opinions. 

such  on  the  other  hand  as  tended  to  disprove,  an  intention  on  the 
part  of  the  defendant  to  injure  the  reputation  of  the  plaintiff. 

There  was  no  issue  of  malice,  or  no  malice  in  the  case.  The  exist- 
ence of  malice  prompting  appellant,  if  he  applied  the  words  to  appel- 
lee, was  pr(q)erly  to  be  considered  by  the  jury;  but  instructions  pred- 
icated upon  a  part  of  the  evidence  tending  to  show,  on  one  hand,  an 
intention  to  injure  her  good  name,  and  on  the  other  to  show  that 
appellant's  motives  were  good,  and  that  he  had  no  special  intention 
to  defame  her,  should  not  have  been  given.  Whether  a  particular 
state  of  fact  tends  to  prove  or  to  disprove  bad  motives  on  the  part  of 
the  appellant,  is  the  proper  subject  for  argument,  but  is  not  a  proper 
predicate  for  instructions  by  the  court,  which  should  be  confined  as 
closely  as  possible  to  the  issues  made  by  the  pleadings. 

To  predicate  an  instruction  on  part  only  of  the  evidence  relating 
to  the  particular  point  embraced  in  the  instruction,  is  calculated  to 
give  that  part  of  the  evidence  special  prominence,  to  withdraw  atten- 
tion from,  or  to  subordinate  other  evidence  which  they  ought  to  con- 
sider. 

The  exclusion  of  the  evidence  tending  to  show  that  appellant  had 
explained  to  some  persons  that  the  statements  by  him  were  based 
upon  the  fact  that  another  had  been  guilty  of  the  offense,  unless  he 
had  made  such  explanation  to  all  to  whom  he  had  communicated  the 
slanderous  words,  was  error.  The  only  legitimate  use  of  such  evi- 
dence was  to  show  that  the  appellant  had  no  intention  to  injure  the 
appellee,  and  while  if  he  had  gone  to  all  to  whom  he  had  repeated 
the  slander  and  explained  the  mistake,  the  inference  from  that  fact 
would  have  been  stronger  than  from  an  explanation  to  a  part  only 
of  such  persons,  yet  the  difference  would  have  been  in  degree  only. 

The  fourth  instruction  given  at  the  instance  of  the  appellant,  to 
the  effect  that  evidence  of  all  feeling  between  Cardwell  Campbell's 
son,  and  the  appellant,  was  not  competent  to  prove  an  intention  on 
the  part  of  the  appellant  to  injure  the  character  of  the  appellee, 
should  not  have  been  given.  Appellee,  though  not  the  child  of  Card- 
well  Campbell,  was  a  member  of  his  family,  and  appellant  was 
charged  with  having  said  that  he  had  seduced  her,  and  by  the  impli- 
cation, at  least,  he  had  sent  her  away  and  procured  an  abortion  to  be 
produced  upon  her  person,  an  evidence  of  ill-feeling  toward  him  was 
competent,  as  tending  to  prove  an  intention  to  defame  and  injure  her 
character.  But  the  jury  could  have  been  cautioned  not  to  allow  any 
injury  that  may  have  been  done  to  Campbell  Cardwell,  to  increase 
their  finding  for  appellee. 


John  M.  Ready,  Jr.,  et  al.,  v.  D.  R.  Collins.  149 

For  the  errors  indicated,  the  judgment  is  reversed  and  the  cause 
is  remanded  for  a  new  trial,  upon  principles  not  inconsistent  with 
this  opinion. 

G.  H,  Break,  William  Chenault,  for  appellant, 

Dunlap,  C.  F.  Burnam,  R.  M,&W,  A,  Bradley,  for  appellee. 


John  M.  Ready,  Jr.,  et  al.,  v,  D.  R.  Collins. 

Guardian  and  Wards — Sale  of  Real  Estate— Supplemental  Proceedings. 
A  proceeding  for  the  sale  of  the  wards'  real  estate  where  such  wards 
were  not  made  parties  is  ineffectual  to  divest  them  of  title. 

Supplemental  Proceedings. 

Where  in  an  original  proceeding  to  sell  a  ward's  real  estate,  no 
good  title  is  conveyed  because  the  ward  was  not  made  a  party  thereto, 
a  supplemental  proceeding  pursuant  to  the  statute  of  September  30, 
1861,  (Myer's  Supp.  424)  may  result  in  a  Judgment  of  the  court  con- 
firming such  sale  and  conveyance. 

appeal  from  GARRARD  CIRCUIT  COURT. 

October  13,  1874. 

Opinion  by  Judge  Cofer  : 

The  original  proceedings  by  the  guardian  were  clearly  defective. 
The  infant  owners  of  the  land  were  not  parties  to  the  record,  and 
the  judgment  and  sale  would  not  have  invested  the  appellee  with 
their  title.  They  were  parties,  however,  to  the  supplemental  pro- 
ceedings, which  seem  to  have  been  in  all  respcts  according  to  the 
statute  of  the  30th  of  September,  1861,  Myer's  Supp.  424.  All  that 
is  required  by  that  act,  is  that  the  guardian  shall  file  an  amended 
petition  making  his  wards  either  plaintiffs  or  defendants,  reciting 
the  facts  of  the  former  proceeding,  judgment  and  sale,  and  averring 
that  the  sale,  as  made,  was  beneficial,  and  had  redounded  to  the 
interest  of  the  infants ;  and  upon  proof  being  made  of  the  truth  of 
the  statements  of  the  petition,  the  court  had  power  to  render  a 
judgment  confirming  the  former  judgmient,  and  the  sale  made  under 
it,  which,  when  done,  would  have  rendered  the  judgment  and  sale 
as  valid  and  binding  in  all  respects  as  if  the  original  proceedings 
had  been  in  every  particular  according  to  the  requirements  of  the 
law.  The  evidence  leaves  no  room  to  doubt  that  the  sale  was  bene- 
ficial to  the  infants,  and  it  is  clear  that  a  judgment  confirming  the 
sale  might  and  ought  to  have  been  rendered,  unless  there  was  such 
defect  in  the  title,  or  incumbrance  on  the  land,  as  to  entitle  appellee 
to  avoid  the  sale  on  that  ground. 


ISO  Kentucky  Opinions. 

No  commissioner's  report  was  necessary  in  this  supplemental 
proceeding,  either  to  show  the  net  value  of  the  real  and  personal 
estate  of  the  infants,  or  its  annual  profits,  or  that  their  interests 
required  the  sale,  or  would  be  promoted  by  it.  Such  matters  as  are 
required  to  be  stated  in  the  petition  and  proved  to  the  satisfaction 
of  the  court,  may  be  proved  by  any  competent  evidence,  and  a  re- 
port by  commissioners  was  not  necessary.  Nor  does  it  matter  that 
a  part  of  the  proceeds  of  the  sale  of  the  land  will  be  required  to 
pay  the  debts  of  Mrs.  Ready,  or  to  satisfy  the  claim  of  the  life  ten- 
ant; indeed,  if  all  the  proceeds  should  be  required  for  those  pur- 
poses, the  infants  may  own  other  estate  which  will  be  relieved  from 
liability  for  the  debts  of  their  mother  that  will  be  paid  out  of  the 
money  arising  from  this  sale,  but  whether  so  or  not  is  not  import- 
ant. The  only  thing  appellee  has  a  right  to  demand,  is  that  he  shall 
get  good  title  to  the  land  he  bought,  and  this  he  can  now  get 
beyond  any  doubt,  by  a  judgment  confirming  the  former  judgment, 
and  the  sale  made  under  it.  Nor  can  he  avoid  the  sale  because  no 
bond  of  the  guardian  is  in  the  record ;  the  court  must  presume  that 
a  proper  bond  was  taken,  and  its  subsequent  loss  cannot  affect  the 
validity  of  the  supplemental  proceedings.  But  if  the  bond  cannot 
be  found  on  the  return  of  the  cause,  the  court  should  require  the 
guardian  to  execute  a  new  bond,  and  upon  his  failure  to  do  so, 
should  order  the  purchase  money  to  be  collected  by  the  receiver,  and 
held  under  orders  of  the  court  until  such  bond  is  given. 

The  appellee  was  bound  to  take  notice  of  any  defect  in  the  title 
or  incumbrance  on  the  land  disclosed  by  the  title  papers  on  file  in 
the  case.  Huber  v,  Armstrong's  Widow  and  Heirs,  7  Bush  591. 
The  deed  from  Davis  to  Miss  Ready  was  on  file,  and  shows  the 
nature  and  extent  of  the  reservation  contained  therein,  and  as  it  was 
appellants'  duty  to  know  it,  it  is  their  misfortune  if  they  did  not 
know  it. 

The  court,  therefore,  erred  in  dismissing  the  amended  petition  of 
appellants  and  refusing  to  confirm  the  sale,  and  the  judgment  is  re- 
z^ersed  and  the  cause  is  remanded  with  directions  to  confirm  the 
sale,  and  for  further  proceedings  consistent  with  this  opinion.  The 
cost  of  the  proceedings  on  the  amended  petition,  except  the  taking 
of  depositions  by  appellee  concerning  the  reservation  in  the  deed 
from  Davis,  should  be  paid  out  of  the  proceeds  of  the  sale. 

R.  M.  &  W.  O,  Bradley,  Owsley  &  Burdett,  for  appellants. 
Felix  G.  Fox,  for  appellee. 


George  McLeod's  Adm'r  v.  Henry  Ament's  Adm'r.       151 

George  McLeod's  Adm'r  v,  Henry  Ament's  Adm'r. 

County  Court  Jurisdictioii — ^Administrator  De  Bonis  Non. 

When  the  county  court  has  appointed  an  administrator  de  bonis  non 
of  an  estate,  he  has  exhausted  his  power,  and  cannot  make  an  order 
on  a  day  thereafter  appointing  a  coadministrator. 


istrator  De  Bonis  Non. 

An  administrator  de  bonis  non  not  interested  in  the  estate  as  an 
heir  or  creditor  has  no  sufficient  interest  in  the  funds  to  be  allowed 
to  raise  a  question  as  to  whether  the  former  executor  had  proper  au- 
thority to  use  a  part  of  the  trust  funds  to  enclose  the  graveyard  where 
the  decedent  is  buried. 

APPEAL  FROM  BOURBON  CIRCUIT  COURT. 

October  13,  1874. 

Opinion  by  Judge  Cofer: 

The  county  court  exhausted  its  power  to  appoint  an  administrator 
de  bonis  non  of  Henry  Ament,  by  the  appointment  of  appellee ;  and 
the  order  made  on  a  subsequent  day,  appointing  appellant  a  co- 
administrator, was  void. 

As  administrator  of  Henry  Anient,  the  appellant  had  a  right  to 
recover  the  unexpended  balance  of  the  fund  set  apart  for  inclosing 
the  grave  yard  and  erecting  monuments  over  the  graves  of  the  tes- 
tator and  his  relatives. 

Whether  the  court  erred  in  directing  a  part  of  tlie  fund  to  be 
used  in  enclosing  the  graveyard,  and  the  residue  to  be  distributed, 
is  a  matter  in  which  appellant  does  not  appear  from  the  record  to 
have  such  an  interest  as  to  entitle  himi  to  question  the  correctness 
of  that  part  of  the  judgment.  As  administrator  of  the  former  execu- 
tor, he  clearly  has  no  such  interest.  If  he  had  an  interest  in  the 
fund  as  distributee,  he  should  have  set  forth  such  facts  as  would 
have  shown  that  interest ;  and  not  having  done  so,  the  only  question 
on  the  appeal  is  whether  the  judgment  against  him  for  the  money 
was  right.  He  and  his  ancestor  had  kept  this  fund  in  their  hands 
for  about  twenty  years,  and  he  is  charged  with  simple  interest  only, 
and  was  not,  therefore,  entitled  to  commission  on  the  fund. 

Perceiving  no  error  in  the  judgment,  it  is  aMrmed, 

Marshall  &  McLeod,  for  appellant, 
Cunningham,  Tourney,  for  appellee. 


152  Kentucky  Opinions. 

Julius  A.  Smith's  Adm'r  v.  Louisville  Benevolent  &  Relief 

Association. 

Administrator,  Maintenance  of  Action — Decedent's  Association  Member- 
ship. 

Where  a  decedent  died  prior  to  any  distribution  of  the  proceeds 
of  an  association  of  which  he  was  a  member,  and  before  the  members 
were  empowered  by  law,  in  the  event  of  a  dissolution,  to  retain  the 
property  among  themselves,  the  administrator  cannot  maintain  an 
action  against  the  living  members  for  contribution. 

Decedent's  Association  Membership. 

Where,  under  the  rules  of  an  association  of  which  decedent  was  a 
member  it  was  provided  that  at  the  death  of  a  member  his  wife  or 
mother  would  be  entitled  to  certain  named  benefits,  it  is  held  where 
the  wife  died  prior  to  her  husband,  but  decedent's  stepmother  survived 
him  that  such  stepmother  is  not  entitled  to  such  benefits. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

October  15,  1874. 

Opinion  by  Judge  Pryor: 

The  administrator  of  Julius  A.  Sniitli  can  maintain  no  action 
against  the  appellee  or  its  members  for  contribution,  for  the  reason 
that  his  intestate  died  long  before  there  was  any  distribution  of  the 
proceeds  of  the  association  (if  any  has  been  made),  and  before  the 
members  of  the  association  were  empowered  by  legislative  enact- 
ment, in  the  event  of  a  dissolution,  to  retain  the  property  among 
themselves. 

At  Smith's  death,  by  the  terms  of  the  charter,  as  a  consideration 
for  what  he  had  paid,  and  by  reason  of  his  membership,  his  rela- 
tions, such  as  are  designated  by  the  charter,  become  entitled  to  cer- 
tain benefits.  The  widow  is  to  have  twenty  dollars  per  month,  and 
if  no  widow  or  child,  his  mother  is  entitled  to  the  same  benefits.  In 
the  present  case,  Smith  died  without  leaving  a  wife  or  children,  but 
leaving  surviving  him  a  stepmother,  who,  in  conjunction  with  his 
administrator,  is  prosecuting  this  action.  There  was  no  legal  or 
natural  obligation  on  the  part  of  Smith  to  support  and  maintain  his 
stepmother,  and  the  relation  between  them  was  not  such  as  would 
entitle  her  to  the  beneficent  provision  of  the  act  in  question.  One 
may  stand  in  loco  parentis  to  another,  and  as  such  become  respon- 
sible for  the  maintenance  and  education  of  the  child  for  the  reason 
that  the  latter  is  held  out  to  the  world  as  one  of  the  family.  So  the 
intestate  might  have  been  made  liable  for  the  support  and  main- 


Sarah  E.  Hanna's  Adm'r  v.  Jelson  M.  Hanna's  Adm'r.      153 

tenance  of  a  stranger  when  based  upon  a  sufficient  consideration. 
The  mere  moral  obligation,  if  any,  to  maintain  in  either  case  would 
not  authorize  a  recovery  against  the  intestate,  and  it  was  never  con- 
templated that  the  clause  of  the  charter  in  question  entitled  those 
occupying  the  relation  of  stepmother  to  its  beneficial  provisions. 
There  was  neither  a  natural  nor  legal  obligation  on  the  part  of  Smith 
to  maintain  the  appellant  (his  stepmother)  ;  and  as  he  having  died 
without  leaving  any  such  kindred  as  those  mentioned  in  the  charter 
and  who  were  alone  entitled  to  the  benefits,  the  money  paid  by 
him  into  the  association  passes  to  the  survivfng  members.  The 
judgment  is  therefore  affirmed. 

Armstrong  &  Flemming,  for  appellant. 
Russell  &  Helm,  for  appellee. 


Sarah  E.  Hanna's  Adm'r  v.  Jelson  M.  Hanna's  Adm'r. 

Infants— -Parties  to  Action — Guardian  Ad  Litem — ^Administrator. 

Where  defendants  to  a  cross-petition  to  sell  real  estate  are  infants* 
and  no  guardian  ad  litem  is  appointed  for.  them,  a  Judgment  for  cross- 
petitioner  ordering  the  sale  of  the  infants'  real  estate  is  erroneous  and 
will  be  reversed. 

Administrator. 

An  administrator  or  other  trustee  when  called  upon  by  a  pleading 
to  show  receipts  and  disbursements  of  his  trust,  should,  by  a  court  of 
equity,  be  compelled  to  respond  before  being  permitted  to  proceed  with 
his  cause. 

appeal  from  SCOTT  CIRCUIT  COURT. 

October  15,  1874. 

Opinion  by  Judge  Cofer  : 

The  children  of  Jelson  M.  Hanna  were  all  infants  when  appellee 
filed  his  answer  and  cross-petition  against  them,  seeking  to  fore- 
close his  mortgage  on  the  land,  and  also  to  sell  the  land  to  pay  any 
balance  that  might  be  due  to  him  on  a  final  adjustment  of  the  ac- 
counts between  the  parties ;  and  no  guardian  ad  litem,  having  been 
appointed  to  defend  for  them  in  respect  to  the  matters  set  up  in  the 
cross-petition,  the  judgment  rendered  to  sell  the  land  was,  for  that 
reason,  erroneous. 

It  is  distinctly  charged  in  the  amended  petition  filed  by  appellants, 
that  appellee  had  taken  charge  of  and  sold  the  personal  property 


154  Kentucky  Opinions. 

mentioned  in  the  mortgage,  and  that  the  proceeds  thereof  were 
more  than  sufficient  to  pay  the  mortgage  debts.  This  is  not  denied 
in  terms  or  in  substance ;  and  on  the  pleadings,  as  they  stood  at  the 
trial,  the  court  should  have  rendered  judgment  canceling  the  mort- 
gage, and  declaring  the  debts  secured  by  it  to  have  been  paid. 

The  appellee  was  called  on  to  state  what  property  he  had  sold, 
and  what  disposition  he  had  made  of  the  proceeds ;  to  this  he  made 
no  response  whatever.  He  was  the  agent  of  his  intestate  in  selling 
the  personal  property  mortgaged  to  him  and  others,  and  it  was  his 
duty  to  keep  an  account,  and  when  called  on  to  state  what  property 
he  had  sold  and  how  much  he  sold  it  for,  and  what  disposition  he 
made  of  the  proceeds,  he  should  have  made  a  full  exhibit,  and  ought 
not  to  have  been  allowed  to  proceed  on  his  cross-petition  until  he 
did  so.  He  had  no  right  to  seal  his  own  lips,  and  then  insist  that 
he  should  only  be  charged  with  whatever  could  be  proved  against 
him  by  the  widow  and  minor  children  of  his  deceased  principal.  He 
occupied  a  position  of  trust  and  confidence,  both  on  account  of  his 
former  agency  and  of  his  office  of  administrator ;  and  his  adversaries 
had  a  right  to  demand  a  full  disclosure.  He  knew  the  facts  they  did 
not,  and  the  chancellor  will  not  allow  him  to  drive  them  to  the  proof 
of  facts  which  he  knows  and  is  bound  to  disclose. 

Interest  should  have  been  charged  on  the  amount  of  all  sales  of 
property  made  by  appellee  during  the  life  of  Hanna,  from  the  date 
of  the  sale.  This  was  not  done.  The  whole  price  of  the  mare  and 
colt  sold  for  $300  should  have  been  charged  with  interest  from  the 
date  of  sale,  and  no  deduction  should  have  been  made  of  the  $85 
paid  to  John  Hanna  for  keeping  them.  That  was  paid  by  a  credit 
on  a  debt  John  Hanna  owed  to  the  intestate,  and  which  is  not 
charged  to  appellee. 

Appellee  is  credited  by  the  account  of  H.  J.  Stakely,  which  he 
paid  with  notes  of  his  intestate  against  Stokely,  with  which  he  is 
not  charged.  He  should  have  been  charged  with  both  notes.  The 
evidence  in  regard  to  the  amount  of  corn,  and  the  number  of  hogs 
sold  by  appellee,  does  not  satisfy  us  that  he  should  have  been  charged 
with  anything  more  than  he  was  charged  with  on  this  account ;  but 
as  the  cause  must  be  remanded  for  further  proceedings,  we  refer 
to  the  subject  only  to  say  that  it  is  not  to  be  considered  as  concluded 
by  this. 

The  amended  petition  of  appellant  charged  with  reference  to  the 
whiskey  transaction,  that  appellee  had  in  his  possession  all  the  notes, 
receipts,  invoices,  bills  of  lading,  and  policies  of  insurance  relating 


Sarah  E.  Hanna's  Adm'r  v,  Jelson  M.  Hanna's  Adm'r.      155 

to  the  purchase,  shipment  and  sales;  and  he  is  called  upon  to  ex- 
hibit them,  and  to  make  a  full  statement  of  the  amount  of  whiskey 
shipped  to  Texas,  to  whom  and  where  it  was  shipped,  to  whom  it 
was  sold,  at  what  price,  how  much  money  was  paid  on  the  same, 
by  and  to  whom,  and  at  what  time,  whether  any  money  is  yet  due, 
and  from  whom,  and  what  steps,  if  any,  have  been  taken  to  collect 
it,  to  exhibit  the  partnership  books,  if  any,  and  also  to  exhibit  all 
papers  of  any  kind,  including  letters  and  correspondence,  touching 
the  said  partnership  and  its  business. 

In  response  to  this  amended  petition  appellee  says  he  went  to 
Texas  and  ascertained  the  names  of  each  of  the  eleven  persons  with 
whom  Hanna  had  left  parts  of  the  whiskey  for  sale,  and  that  he 
called  upon  them  for  a  full  statement  of  their  agency,  and  fails  to 
suggest  that  he  failed  to  obtain  from  any  one  of  them  the  informa- 
tion he  sought.  He  then  proceeds  to  name  six  of  the  eleven  agents, 
and  to  state  how  much  whiskey  was  left  with  each,  and  that  he  re- 
ceived no  money  from  three  of  them,  to  wit :  Rust,  Moss  and  Wood- 
all;  but  as  to  the  others  he  does  not  state  whether  they  paid  him 
any  money  or  not.  The  remaining  five  agents  are  not  named,  nor 
is  any  reference  made  to  them,  except  that  the  payments  made  by 
them  had  been  fully  stated  in  his  original  answer.  All  that  is  said 
on  this  subject  in  the  original  answer  is,  that  he  had  collected  the 
sum  of  $5,000  without  saying  of  whom,  or  whether  those  who  paid 
it,  or  any  of  them,  were  owing  anything  more  or  not.  He  says  he 
sent  an  agent  to  Texas  to  look  after  the  matter,  but  what  the  agent 
did,  besides  bringing  back  to  Kentucky  twenty  barrels  of  whiskey 
at  a  cost  of  $460,  he  does  not  say.  It  may  be  that  the  agent  made 
collections,  or  sold  whiskey  and  received  the  price,  and  still  all  that 
is  in  the  answer  of  appellee  may  be  true. 

Knowing  the  names  of  the  agents,  and  how  much  whiskey  each 
had  received,  and  how  much  money  each  had  paid  to  him,  appellee 
should  have  stated  these  facts  in  response  to  the  demand  of  the  ap- 
pellant, and  the  chancellor  should  have  refused  to  attempt  a  settle- 
ment with  him  of  the  partnership  accounts  until  it  was  done.  With- 
holding the  names  of  those  from  whom  he  made  collections  put  it 
out  of  power  of  appellants  to  show  that  he  had  failed  to  account  for 
all  he  received;  the  parties  were  not,  therefore,  upon  equal  terms, 
but  the  trustee,  by  withholding  information  in  relation  to  the  trust 
which  he  confessedly  possessed,  and  which  he  was  asked  to  com- 
municate, was  in  no  condition  to  demand  relief ;  and  the  chancellor 


156  Kentucky  Opinions. 

might  well  have  refused  him  any  relief  until  he  had  made  the  re- 
quired disclosure,  and  ought  to  have  done  so. 

The  appellee  says  all  the  contracts  with  the  agents  of  the  firm 
were  to  pay  for  the  whiskey  in  gold,  and  as  he  does  not  disclose 
what  kind  of  money  he  received,  it  ought  to  be  assumed  that  the 
$5,000  admitted  to  have  been  collected  was  in  gold,  and  he  should 
have  been  charged  with  the  premium  on  it,  unless  he  paid  it  to  Mc- 
Gibbon  on  the  firm  note  at  par.  The  uncollected  balances  due  from 
agents  in  Texas  belong  not  to  appellee,  but  to  the  firm,  and  he  should 
have  made  full  disclosure,  that  the  representatives  of  Hanna  might 
have  the  means  of  charging  him  in  the  event  that  any  part  of  such 
balances  may  be  collected  hereafter. 

The  judgment  in  favor  of  appellee  and  directing  a  sale  of  the 
land  of  his  intestate  to  pay  the  balance  therein  ascertained,  is  re- 
versed, and  the  cause  remanded  with  directions  to  appoint  a  guard- 
ian ad  litem  for  the  infant  defendants  to.  the  cross-petition,  and  to 
allow  the  appellee  to  make  response  to  the  demands  for  a  disclosure 
contained  in  the  amended  petition  of  appellant,  if  he  offers  to  do  so 
in  a  reasonable  time,  and  then  to  allow  reasonable  time  for  further 
preparation,  and  in  case  he  declines  to  make  the  disclosures  to  dis- 
miss his  cross-petition,  and  to  render  judgment  against  him  for  the 
balance  in  his  hands  as  administrator. 

/.  r.  Robinson,  for  appellant, 
Buckncr  &  Prewitt,  for  appellee. 


Martin  Judy  z\  John  S.  Swinney. 

Contract — Mutual  Covenants — Pleading — Proof. 

When  covenants  in  a  contract  are  mutual  and  to  be  performed  at 
the  same  time,  neither  party  can  maintain  an  action  without  averring 
a  tender;  and  in  cases  where  the  first  act  is  to  be  done  by  the  defend- 
ant, plaintiff  must  aver  his  readiness  to  comply. 

Pleading— Proof. 

Before  a  party  to  a  contract  can  introduce  proof  excusing  him  from 
performance,  because  prevented  by  the  act  or  conduct  of  his  adver- 
sary, he  must  first  aver  such  fact  in  his  pleading. 

APPEAL  PROM  BOURBON  CIRCUIT  COURT. 

October  15,  1874. 

Opinion  by  Judge  Pryor  : 

It  is  well  settled  that  when  the  covenants  are  mutual  and  to  be 


Martin  Judy  v,  John  S.  Swinney.  157 

performed  at  the  same  time,  that  neither  party  can  maintain  an  ac- 
tion without  averring  a  tender;  and  in  cases  where  the  first  act  is 
to  be  done  by  the  defendant,  the  plaintiff  must  aver  his  readiness  to 
comply.  Chitty  lays  down  the  rule  as  follows:  "There  is  also  a 
third  sort  of  covenants,  which  are  mutual  conditions  to  be  performed 
at  the  same  time ;  and  in  these,  if  one  party  was  ready,  and  offered 
to  perform  his  part,  and  the  other  neglected  or  refused  to  perform 
his,  he  who  was  ready  and  offered  has  fulfilled  his  engagement,  and 
may  maintain  an  action  for  the  default  of  the  other."  Chitty 's 
Pleadings  353. 

In  the  present  case  the  cattle  were  to  be  obtained  by  one  party 
and  paid  for  by  the  other,  and  no  place  being  fixed  for  the  delivery, 
the  law  is  that  the  residence  of  the  vendor  is  where  the  contract  is 
to  be  executed.  If  the  appellant,  in  this  case,  had  his  cattle  ready 
at  his  residence  for  delivery,  he  could  not  have  been  compelled  to 
comply  on  his  part  without  a  payment  to  him  of  the  money,  and  on 
the  other  hand  could  have  maintained  no  action  against  the  appellee 
without  averring  that  he  had  the  particular  description  of  cattle,  as 
well  as  the  number,  ready  for  delivery  at  the  time  and  in  the  man- 
ner provided  by  the  contract.  There  was  then  as  much  necessity 
for  appellee  to  have  been  at  the  residence  of  appellant  to  receive 
and  pay  for  the  cattle,  as  it  was  for  the  latter  to  have  them  ready 
for  delivery.  If  the  cattle  had  been  in  the  bam  lot  on  the  day,  no 
performance  could  have  been  made  by  the  appellee,  as  he  does  not 
aver  that  he  was  at  appellant's  residence,  and  when  there  was  ready 
and  offered  to  perform  his  part  of  the  contract.  The  party  com- 
plaining must  show  that  he  has  complied  or  offered  to  comply  be- 
fore he  can  make  his  adversary  liable  for  any  default  upon  his  part. 
The  petition  as  amended  fails  to  state  a  cause  of  action,  and  the 
demurrer  should  have  been  sustained. 

It  is  insisted  by  the  appellee  that  there  is  evidence  conducing  to 
show  that  his  failure  to  attend  and  comply  with  his  contract  was  by 
reason  of  some  act  on  the  part  of  the  appellant,  by  which  he  was 
prevented  or  excused  from  so  doing.  Whether  such  facts  exist  it 
is  not  necessary  now  to  determine,  as  there  is  no  allegation  in  the 
petition  under  which  such  proof  could  be  introduced. 

The  judgment  is  reversed  and  cause  remanded  with  directions 
to  award  the  appellant  a  new  trial,  and  for  further  proceedings  con- 


158  Kentucky  Opinions. 

sistent  with  this  opinion.   The  appellee,  if  he  can  do  so,  should  be 
allowed  to  amend  his  pleadings. 

Brent  &  McMillian,  for  appellant. 
A,  M,  Swope,  for  appellee. 


B.  F.  Turner,  et  al.,  v,  J.  W.  Martin. 

Landlord  and  Tenant — Possession. 

Where  a  tenant  agrees  to  take  the  store  room  of  his  landlord  sub- 
ject to  a  contract  between  the  landlord  and  a  person  who  was  engaged 
in  making  improvements  thereon,  he  is  not  entitled  to  possession  be- 
fore the  contractor  completes  the  improvements  unless  the  delay  is  the 
result  of  unreasonable  interference  by  the  landlord.  The  landlord  is 
not  entitled  to  collect  any  rent  until  possession  is  given  to  the  tenant 

APPEAL  FROM  CLARK  CIRCUIT  COURT. 

October  16,  1874. 

Opinion  by  Judge  Lindsay  : 

We  understand  the  stipulation  in  the  contract  between  Turner  & 
Martin  that  the  latter  "agrees  to  take  the  store  room  subject  to  the 
contract  existing  between  John  Graham  and  the  said  Benjamin 
Turner,"  to  mean  that  Martin  was  not  to  have  the  possession  until 
Graham  completed  the  improvements  and  repairs  he  was  then  mak- 
ing on  the  house.  Martin,  therefore,  cannot  recover  damages  from 
Turner  for  the  delay  of  Graham,  unless  it  was  the  result  of  improper 
.  or  unreasonable  interference  by  Turner. 

Martin  fails  in  his  cross-petition  to  allege  any  such  unreasonable 
or  improper  interference.  But  his  cross-petition  is  still  further  de- 
fective. He  states  that  by  reason  of  being  kept  out  of  possession, 
his  drugs,  medicines,  etc.,  were  greatly  injured ;  but  he  fails  to  state 
the  character  of  or  extent  of  such  injuries,  or  to  state  any  fact  con- 
necting the  injuries  with  his  failure  to  obtain  possession.  But  waiv- 
ing the  defects  in  his  pleadings,  Martin  has  no  shadow  of  right  to 
recover  for  the  wages  paid  to  his  clerk  during  the  five  months  in- 
tervening from  November  i,  1870,  to  April  i,  1871.  There  is  noth- 
ing in  the  record  tending  to  show  that  he  was  compelled  to  keep  the 
clerk,  nor  is  there  any  reason  assigned  why  the  clerk,  if  kept,  could 
not  have  followed  some  vocation  instead  of  remaining  idle  during  all 
this  time. 


E.  J.  Green  v,  William  Gates.  159 

Even  if  Martin  was  kept  out  of  possession  by  the  improper  con- 
duct of  Turner,  still  he  is  not  entitled  to  recover  from  Turner  the 
five  months  rent.  He  had  paid  no  rent  himself,  and  therefore  in  no 
event  could  he  recover  on  this  phase  of  the  case,  more  than  the 
difference  between  the  contract  price  and  the  actual  rental  value  of 
the  house ;  and  there  was  no  proof  made  or  attempted  to  be  made, 
that  such  actual  value  was  greater  than  the  contract  rate. 

Martin  could  in  no  possible  state  of  case  be  entitled  to  a  judg- 
ment against  Mrs.  Turner.  For  these  reasons  the  judgment  appealed 
from  must  be  reversed. 

Turner  was  not  entitled  to  collect  rent  until  Graham,  who  was 
his  employe,  delivered  the  possession  to  Martin ;  and  if  Martin  has 
paid  for  the  whole  time  he  occupied  the  premises,  Turner  should 
have  no  judgment. 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
upon  principles  consistent  with  this  opinion.  Upon  the  return  of  the 
cause  Martin  should  be  allowed  to  amend  his  answer  and  cross- 
petition  if  he  offers  within  a  reasonable  time  to  do  so. 

/.  Simpson,  for  appellants. 

C.  &  T.  M.  Eginton,  Htiston  &  Buckner,  for  appellee. 


E.  J.  Green  v.  William  Gates. 


Sale  of  Real  EsUte— Title  Bond— Warranty— Purchaser. 

Where  a  title  bond  is  assigned  the  implied  warranty  is,  not  that  the 
land  is  free  of  incumbrance,  but  that  the  assignor  has  title  to  the  bond. 

The  purchaser  of  a  title  bond  is  bound  to  take  notice  of  its  contents, 
and  where  reference  is  made  therein  to  notes  that  constitute  a  lien  on 
the  land  described  in  the  bond,  he  is  held  to  take  such  bond  subject  to 
such  notes. 

APPEAL,  FROM  GRANT  CIRCUIT  COURT. 

October  16,  1874. 

Opinion  by  Judge  Lindsay  : 

The  evidence  conduces  to  show  that  Gates  understood  the  agree- 
ment of  the  20th  of  August,  1865.  If  he  did,  his  written  acknowledg- 
ment that  Green  had  complied  with  his  undertaking  ought  to  con- 
clude him,  there  being  neither  averment  nor  proof  that  said  ac- 
knowledgment was  procured  by  fraud  or  executed  by  mistake. 

But  if  it  be  true  that  Green  agreed  to  transfer  to  Gates  thp  bond 


i6o  Kentucky  Opinions. 

for  title,  still  it  by  no  means  follows  that  he  is  bound  to  remove  the 
incumbrance  created  by  the  note  executed  to  Plunkett  and  assigned 
by  him  to  Hudson.  Upon  this  assignment  of  a  title  bond,  the  law 
does  not  imply  a  warranty  of  title  to  the  land  described.  The  im- 
plied warranty  is  that  the  assignor  has  title  to  the  bond. 

It  seems  from  Gates'  answer  to  the  action  of  Hudson's  administra- 
tor, that  it  appeared  upon  the  face  of  the  bond  that  a  note  for  two 
hundred  dollars  was  executed  by  Fenwickes  to  Plunkett,  and  he 
seeks  to  avoid  the  lien  because  said  note  does  not  bear  even  date 
with  the  bond.  The  bond  was  enough  of  itself  to  put  Gates  upon 
inquiry.  But  further  than  this  Fenwickes  swears  that  he  informed 
Gates  of  the  existence  of  the  note,  and  that  it  had  not  been  paid  be- 
fore the  purchase  of  the  bond  from  Green. 

Under  the  circumstances  of  this  case,  to  authorize  a  judgment  for 
Gates  against  Green,  it  is  necessary  to  show  that  pending  the  nego- 
tiations betwen  them,  Green  expressly  represented  to  Gates  that  the 
purchase  price  due  from  Fenwickes  to  Plunkett  had  been  fully  paid, 
or  made  such  other  representation  as  in  law  amounts  to  a  warranty 
of  title,  not  to  the  bond  but  to  the  land  itself,  and  this  is  what  this 
court  meant  when  it  said  in  its  former  opinion,  that  Green  might, 
in  view  of  his  representations,  be  liable  for  the  costs  of  the  suit,  or 
possibly  for  indemnity  against  the  incumbrance. 

The  evidence  fails  to  show  representations  by  Green  amounting  to 
either  a  fraud  or  warranty  of  title.  It  was  therefore  error  to  render 
judgment  against  him. 

The  judgment  appealed  from  is  reversed  and  the  cause  remanded 
with  instructions  to  dismiss  Gates'  cross-petition  so  far  as  he  seeks 
relief  against  Green. 

Lindseys,  for  appellant, 
/.  M,  Collins,  for  appellee. 


Richard  Hutchinson,  et  al.,  v.  Peter  Jett,  Guardian. 

Guardian   and   Ward — Suit    on    Guardian's    Bond— Parties— Pleading-* 
Judgment  Excessive. 

Where  in  a  suit  on  a  former  guardian's  bond  it  is  averred  that  a 
new  guardian  has  been  appointed,  it  will  be  presumed  by  the  court  of 
appeals  that  the  former  guardian  had  resigned  or  been  discharged. 


to  Suit 

It  is  not  necessary  to  sue  in  the  name  of  the  state  to  recover  on  a 
guardian's  bond.  Such  a  suit  should  be  brought  in  the  name  of  the 
ward  by  his  next  friend  or  guardian. 


Richard  Hutchinson,  et  al.,  v.  Peter  Jett,  GVn.       i6i 

Pleading. 

The  petition  in  a  suit  on  guardian's  bond  must  set  forth  in  terms 
or  substance  the  conditions  in  the  bond  which  is  the  foundation  of  the 
action,  and  making  the  bond  an  exhibit  cannot  take  the  place  of  such 
averments. 

Eaccesshre  Judgment 

A  judgment  in  a  suit  on  a  guardian's  bond  is  excessive  which  is  for 
a  greater  sum  than  demanded  by  the  petition. 

APPEAL  PROM  FRANKLIN  CIRCUIT  COURT. 

October  16,  1874. 

Opinion  by  Judge  Cofer  : 

The  allegation  of  the  petition  that  appellee  had  been  appointed 
guardian  of  the  ward  not  being  denied,  it  must  be  presumed  that 
Davidson  had  resigned,  or  had  been  removed.  He  was  appointed  by 
the  same  county  court  that  appointed  the  appellee,  Davidson,  and  it 
must  be  presumed  in  favor  of  the  correctness  of  the  action  of  the 
court,  that  the  office  had,  in  some  way,  become  vacant. 

It  was  not  necessary  to  sue  in  the  name  of  the  commonwealth,  for 
any  one  may  sue  on  a  guardian's  bond  as  the  next  friend  of  the 
ward,  at  any  time  before  he  attains  his  majority.  Sec.  lo.  Chap.  48, 
General  Statutes.  And  by  the  provisions  of  Sec.  30,  Civil  Code, 
'*every  action  must  be  prosecuted  in  the  name  of  the  real  party  in 
interest." 

The  action  could  not,  however,  be  prosecuted  in  the  name  of  the 
guardian,  but  should  have  been  in  the  name  of  the  ward  by  her 
guardian,  or  next  friend.  Sec.  53,  Civil  Code ;  Anderson  v.  Watson, 
3  Met.  509.  Section  33  of  the  code  only  applies  to  suits  on  contracts 
made  with,  or  in  the  name  of  the  guardian,  for  tbe  benefit  of  the 
ward. 

The  original  petition  is  also  defective  in  failing  to  set  forth  in 
terms,  or  in  substance,  the  conditions  and  covenants  in  the  bond 
which  is  the  foundation  of  the  action.  The  only  reference  to  the 
bond  in  the  petition,  is  that  Davidson  "gfave  bond  as  guardian  as 
aforesaid,  with  the  defendant,  Richard  Hutchinson,  as  his  surety," 
which  bond  is  filed  and  made  part  of  the  petition  marked  "B..  D." 

It  has  been  an  established  doctrine  of  this  court,  recognized  by  an 
unbr(^en  line  of  adjudications  commencing  with  the  case  of  Hill  for 
Use  of  WintersnUth  v.  Barrett,  et  al.,  14  B.  Mon.  67,  that  the  peti- 
tion shall  state  the  facts  constituting  the  cause  of  action,  and  that 
admitted  facts  necessary  to  a  complete  cause  of  action,  although  ccm- 

11 


i62  Kentucky  Opinions. 

tained  in  a  writing  filed  with,  and  as  a  part  of  the  petition,  cannot 
be  supplied  by  reference  to  such  paper.  This  rule  is  necessarily  alike 
for  convenience  and  safety,  and  should  be  adhered  to. 

The  amended  petition  is  defective  also.  It  contains  no  averment 
that  the  former  guardian  had  received  the  additional  sum  shown  by 
the  exhibit  filed  with  it ;  but  the  averment  is  that  it  is  shown  by  said 
statement  that  the  defendant  has  drawn  from  said  government  the 
sum  of  $979.47.  This  is  not  equivalent  to  an  averment  that  he  had 
received  such  sum. 

If  there  had  been  a  prayer  in  the  original  petition  for  a  judgment 
for  interest  on  the  fund  in  the  guardian's  hands,  the  judgment  would 
not  have  been  for  too  much;  and  if  the  original  petition  had  been 
good,  there  could  have  been  no  reversal  for  the  defect  in  the  amend- 
ed petition,  but  as  there  was  no  such  prayer,  the  judgment  was  for 
more  than  the  pleadings  authorized. 

Wherefore  the  judgment  is  reversed,  and  cause  is  remanded  with 
directions  to  allow  the  appellee  to  amend  his  petition,  and  for  further 
proceedings. 

/.  W,  Rodman,  for  appellant, 
W.  Jett,  for  appellee. 


John  Hanson  v.  E.  W.  Lea. 

■ 

Landlord  and  Tenant — Improvements  by  Tenant 

Where  improvements  are  made  by  a  tenant  who  sells  out  to  another^ 
the  purchaser  succeeds  only  to  the  rights  of  the  tenant,  and  cannot 
claim  possession  and  ownership  by  adverse  possession  as  against  the 
lessor. 

APPEAL  FROM  BRACKEN  CIRCUIT  COURT. 

October  17,  1874. 

Opinion  by  Judge  Lindsay  : 

Black  was  certainly  the  tenant  of  Lea.  The  proof  conduces  to 
show  that  the  improvements  made  by  Black  were  upon  the  leased 
premises.  Harrison  brought  out  Black's  improvement.  He  says  he 
knew  nothing  about  Black's  lease,  and  that  he  merely  paid  him  for 
his  work ;  yet  it  seems  that  he  would  be  satisfied  with  nothing  short 
of  a  livery  of  seizin.  He  paid  Black  the  thirty  dollars  upon  the 
premises  in  controversy,  and  declined  to  pay  him  anywhere  else. 


S.  Y.  Craig  v.  Samuel  Brame,  et  al.  163 

The  conclusion  is  almost  irresistible  that  Harmon  entered  under 
and  by  virtue  of  his  purchase  from  Black.  Such  being  the  case  he 
stands  in  no  better  attitude,  as  to  Lea,  than  Black  would  have  stood, 
had  he  held  to  the  possession  until  after  the  expiration  of  his  lease. 
The  facts  stated  brings  the  case  clearly  within  the  statutory  definition 
of  a  forcible  detainer,  which  is,  that  '*A  forcible  detainer  is  the  re- 
fusal of  a  tenant  to  surrender  to  his  landlord  the  land  or  tenements 
demised,  after  the  expiration  of  his  term.'*  Civil  Code  of  Practice, 
Sec.  500. 

The  instructions  given  on  the  petition  of  appellee  were  authorized 
by  the  evidence,  and  they  conform  to  the  law  of  the  case  as  herein 
stated. 

The  instruction  asked  by  appellant  was  properly  refused,  if  for  no 
other  reason,  that  it  assumed  as  an  established  fact  that  Harmon  was 
in  the  adverse  possession  of  the  land  when  Black  entered  as  the  ten- 
ant of  Lea.  The  jury  should  have  been  allowed  to  determine  that 
fact  from  the  evidence,  and  besides,  before  the  instruction  could  have 
been  given,  an  adverse  possession  should  have  been  defined. 

We  find  no  error  in  the  record  prejudicial  to  appellant. 

Judgment  affirmed, 

Throop  &  Son,  for  appellant 
B.  S.  Willis,  for  appellee. 


S.  Y.  Craig  v,  Samuel  Brame^  et  al. 

Burden  of  Proof— Pleading. 

The  burden  of  proving  the  existence  of  an  agreement  that  a  contract 
was  to  be  void  upon  certain  conditions,  where  such  agreement  is  not 
embodied  In  the  contract  in  suit,  is  on  the  party  averring  that  there 
was  such  an  agreement. 

Pleading. 

Before  a  party  to  a  suit  is  entitled  to  prove  a  rescission  of  contract, 
he  must  have  pleaded  the  same. 

appeal  from  Mccracken  circuit  court. 

October  19,  1874. 

Opinion  by  Judge  Cofer  : 

We  do  not  think  any  of  the  facts  relied  upon  by  the  counsel  for 
appellees  to  sustain  the  judgment  of  the  court,  have  been  established 


164  Kentucky  Opinions. 

by  the  evidence,  to  say  nothing  of  the  very  doubtful  question  whether 
the  answers  present  a  defense  to  the  action.  The  burden  of  proving 
the  existence  of  the  alleged  agreement  that  the  contract  was  to  be 
void  unless  the  sum  of  $975  was  paid  on  the  17th  of  December,  and 
its  fraudulent  omission  from  the  bond,  was  on  the  appellees,  and  we 
think  they  have  failed  to  sustain  it.  A  majority  of  the  witnesses 
who  testify  on  this  subject  testify  that  no  such  agreement  was  made, 
and  disprove  the  alleged  missending  of  the  bond  by  Pitman.  The 
evidence  shows  that  Brame's  sons  read  from  a  copy  written  by  Wol- 
fork,  and  Pitman  wrote  the  new  bond  after  him,  and  then  that  it 
was  twice  read  in  the  hearing  of  Samuel  Brame,  once  by  Pitman 
and  then  by  Brame's  son,  who,  notwithstanding  he  had  scxne  diffi- 
culty in  reading  it,  could  hardly  have  made  the  mistake  of  reading 
from  it  a  whole  sentence  that  never  was  in  it. 

We  have  no  hesitation  whatever  in  deciding  that  no  surcharge- 
ment  was  made.  The  supposed  rescission  to  which  much  of  the 
evidence  is  addressed  is  not  pleaded,  and  if  it  had  been  the  evidence 
fails  to  establish  that  proposition.  Anderson  admits  that  he  had 
heard  of  the  purchase  made  by  Craig  and  Pitman  before  he  bought, 
and  he  fails  even  to  attempt  to  show  that  he  took  any  steps  whatever 
to  ascertain  what  their  rights  were,  but  seems  to  have  acted  in  utter 
disregard  both  of  their  rights  and  his  own  security.  Pitman  lived 
in  a  short  distance  of  him,  and  could  no  doubt  have  been  seen  on 
any  day  between  the  17th  and  21st  of  December,  and  had  he  been 
consulted  Anderson  could  have  learned  the  truth,  or  if  he  had  not, 
it  would  not  now  be  permitted  to  be  set  up  against  him.  The  po- 
sition in  which  he  now  finds  himself  is  the  legitimate  result  of  his 
reckless  disregard  of  the  rights  of  others,  and  cannot  be  weilded  to 
work  further  injury  to  them.  The  court  erred  in  dismissing  the  ap- 
pellant's petition,  and  the  judgment  is  therefore  rez^ersed,  and  the 
cause  is  remanded  with  directions  to  render  a  judgment  specifically 
enforcing  the  contract  of  the  8th  of  December,  1871,  between  Samuel 
Brame  and  Craig  and  Pitman  in  favor  of  Craig,  and  to  appoint  a 
commissioner  to  ascertain  and  report  the  reasonable  value  of  the 
rents,  and  the  damages  occasioned  to  the  land  by  waste  since  ap- 
pellee, Anderson,  has  been  in  possession.  He  will  not  be  entitled  to 
compensation  for  improvements,  if  any,  put  on  the  land. 

L.  D,  Husband,  for  appellant. 
/.  IV.  Harlan,  for  appellee. 


James  Mellaney  v.  John  C.  Young.  165 

James  Mellaney  v.  John  C.  Young. 

Suit  on  Contract — Counterclaim — Pleading. 

A  counterclaim  for  damages  growing  out  of  a  contract  ia  bad  which 
fails  to  state  the  amount  of  damages  sustained,  or  to  demand  a  recov- 
ery of  any  stated  sum. 

Pleading. 

Before  a  breach  of  contract  can  be  relied  upon  as  a  defense  to  an 
action  to  collect  the  contract  price,  it  must  be  pleaded  by  the  de- 
fendant. 

appeal  from  FAYETTE  CIRCUIT  COURT. 

October  19,  1874. 

Opinion  by  Judge  Lindsay  : 

Appellant's  answer  can  not  be  regarded  as  presenting  a  good 
counterclaim.  After  avering  certain  of  his  contract  breaches  by  ap- 
pellee, appellant  says  he  has  been  injured  thereby,  "to  the  extent  of" 
blanic  dollars.  Again  he  says  that  in  order  to  put  the  cistern  in  re- 
pair, he  was  compelled  to  expend  blank  dollars,  and  he  concludes 
by  praying  for  judgment  in  the  way  of  damages  for  the  sirni  of  blank 
dollars.  It  was  not  necessary  to  reply  to  this  answer.  If  the  peti- 
tion had  been  dismissed,  no  judgment  could  have  been  rendered  in 
appellant's  favor  on  his  counterclaim.  It  is  true  he  shows  breaches 
of  contract  on  which  an  action  would  lie,  but  in  view  of  the  rule 
that  the  jury  cannot  give  more  damages  than  are  laid  at  the  end  of 
the  declaration,  appellant,  upon  his  pleadings,  could  have  recovered 
nothing. 

The  breaches  of  contract  avered  may  be  regarded  as  presenting 
a  defense  to  appellee's  action,  and  to  the  extent  that  damages  on 
account  thereof  are  proved,  there  should  be  no  recovery. 

The  first  ground  of  defense  is  that  appellee  failed  to  finish  the 
house  within  the  agreed  time ;  the  2nd.  that  he  failed  to  put  pressed 
brick  in  the  front  walls;  the  3rd.  that  he  failed  to  put  on  the  coats 
of  plastering;  the  4th.  that  he  did  not  put  on  the  coats  of  paint; 
the  5th  that  the  cistern  was  not  built  according  to  contract ;  the  6th. 
that  appellant  was  not  to  pay  the  balance  due  on  the  house  until  he  . 
collected  certain  claims  from  the  city  of  Lexington. 

As  to  the  1st.  and  2nd.  grounds  of  complaint,  there  is  absolute 
failure  to  prove  any  damage  whatever.  As  to  the  4th.  ground, 
the  proof  shows  that  at  least  two  coats  of  paint  were  put  on  all  that 
portion  of  the  house  appellee  was  bound  by  his  contract  to  paint.    As 


i66  Kentucky  Opinions. 

to  the  3rd.  ground,  the  proof  is  conflicting,  but  it  rather  tends  to 
show  that  the  house  was  plastered  according  to  contract.  The  proof 
does  not  show  that  the  work  on  the  cistern  was  not  well  done,  but 
that  the  plan  upon  which  it  was  constructed  was  a  bad  one.  There 
is  nothing  to  show  that  appellee  was  responsible  for  the  plan. 

Appellant  does  not  prove  that  appellee  was  not  to  be  paid  until 
the  debts  due  him  from  the  city  of  Lexington  were  collected.  The 
testimony  upon  this  branch  of  the  case  was  at  least  equipoised,  and 
the  onus  was  upon  appellant  to  establish  the  agreement  to  postpone 
the  payment  of  the  debt,  which  otherwise  would  be  due  upon  the 
completion  of  the  house. 

As  to  thei  damages  for  failing  to  make  the  stairs  of  the  house  as 
high  as  the  contract  required,  and  for  failing  to  make  the  tops  of 
the  windows  circular  in  form,  and  as  to  the  defect  in  stairway,  and 
in  setting  the  grates,  it  is  sufficient  to  say  no  such  breaches  of  the 
contract  are  set  up  and  relied  on  in  the  answer. 

We  perceive  no  reversible  error  in  the  judgment.    It  is  therefore 

Huston  &  Mulligan,  for  appellant, 
M.  C,  Johnson,  for  appellee. 


John  A.  Carter,  et  al.,  v.  E.  H.  Norwood's  Adm'r,  et  al. 

Guardian  and  Ward — Ghiardian's  Defense. 

A  guardian  is  not  liable  for  the  debts  contracted  by  the  ward  with- 
out his  knowledge  and  consent. 

Guardian's  Defense. 

Where  a  guardian,  after  the  death  of  his  ward,  pays  the  ward's  es- 
tate to  the  heirs  instead  of  paying  alleged  creditors  of  the  ward,  he 
must  show  in  defense  that  the  heirs  were  entitled  to  the  money  and 
that  the  claims  asserted  by  the  creditors  are  invalid. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

October  20,  1875. 

Opinion  by  Judge  Pryor  : 

The  guardian  of  E.  H.  Norwood  is  attempted  to  be  made  liable  for 
monies  paid  by  him  after  the  death  of  his  wards  to  the  heirs  of  the 
latter  instead  of  his  personal  representative.  The  guardian  and 
heirs  are  before  the  court  in  an  action  by  the  administrator  to  settle 


John  A.  Carter,  et  au,  v.  E.  H.  Norword's  Adm'r,  et  al.     167 

the  estate.  The  question  arises  whether  the  funds  in  the  hands  of 
the  guardian  were  liable  for  the  debts  contracted  by  the  ward.  If 
not,  the  guardian,  having  paid  over  the  money,  is  entitled  to  make 
the  defense.  The  debts,  when  created,  must  have  been  such  as 
would  have  made  the  guardian  liable  therefor  out  of  the  ward's 
estate  during  the  latter's  life;  and  if  so,  we  see  no  reason  why, 
when  sued  for  this  alleged  wrongful  appropriation,  he  may  not  show 
that  the  heir  was  entitled  to  it  as  against  the  claimant.  If  neces- 
sary for  the  payment  of  debts,  the  administrator  is  entitled  to  the 
money ;  if  not,  the  heir  should  be  allowed  to  retain  it. 

The  deceased  was  an  infant  when  these  debts  were  contracted, 
and  had  no  right  to  create  them  without  the  consent  of  the  guardian. 
His  whole  estate  consisted  of  only  six  hundred  dollars.  He  had  been 
employed  as  clerk  or  salesman  in  one  of  the  leading  business  houses 
of  the  city,  and  by  the  influence  of  his  guardian  with  his  employees, 
his  wages  were  being  increased.  He  became  discontented  with  his 
position,  and  contrary  to  the  advice  and  consent  of  his  guardian, 
tmdertook  to  seek  other  employment.  The  appellees,  without  the 
consent  or  authority  of  the  guardian,  saw  proper  to  sell  the  deced- 
ent's goods,  and  now  claim  and  that  they  were  necessaries.  The 
proof  shows  that  they  were  evidently  looking  to  the  wages  of  the 
young  man  to  pay, their  claims  upon  him.  He  was  able  to  work  and 
support  himself,  and  the  chancellor  at  no  time,  contrary  to  the  wishes 
of  the  guardian,  would  have  required  the  latter  to  surrender  the 
principal  of  the  ward's  estate  for  the  purpose  of  having  it  invested 
in  clothing.  The  readiness  of  appellee  to  furnish  the  young  man 
with  what  he  considered  the  necessaries,  was  an  inducement  for  him 
to  disregard  the  advice  of  his  guardian,  and  enabled  him  to  select 
his  own  character  of  employment. 

There  is  no  reason  for  this  judgment  against  the  guardian.  He 
was  not  liable  for  the  debt  prior  to  the  death  of  the  ward,  and  should 
not  in  this  action  be  made  to  respond  when  not  necessary  to  pay 
debts.  As  to  the  claim  for  board  of  Vooheries,  it  seems  that  the  heirs 
who  have  this  money  concede  that  the  claim  of  Vooheries  was  for 
necessaries,  and  to  that  extent  the  heirs  receiving  the  money  upon 
'tf  proper  state  of  pleading,  may  be  compelled  to  pay,  in  the  event  the 
funds  in  the  hands  by  the  administrator  are  insuflicient.  Another 
objection  to  the  judgment  is  that  no  claim  is  verified  as  the  law  re- 
quires. In  this  case  it  also  appears  that  after  the  payment  of  this 
money  by  the  guardian,  the  administrator,  who  was  a  creditor,  filed 
his  petition  not  only  to  settle  the  estate,  but  to  establish  his  own 


i68  Kentucky  Opinions. 

claim.  He  makes  all  the  heirs  and  the  guardian  defendants  to  his 
action.  The  chancellor  sees  that  the  administrator  is  in  direct  an- 
tagonism to  the  rights  of  the  heirs,  and  they  being  directly  interested 
in  the  result  of  the  litigation,  he  acted  properly  in  overruling  the 
demurrer  to  the  answer.  It  does  not  appear  that  any  objection  was 
made  to  the  defense  by  the  heirs,  for  the  reason  they  had  made  no 
affidavit  as  required  by  the  amendment  authorizing  heirs  and  devi- 
sees to  defend  in  certain  cases,  and  if  there  had  been,  it  can  not  have 
affected  the  right  of  the  parties.  The  judgment  is  reversed  and 
cause  remanded  with  directions  to  sustain  the  exceptions  to  the 
claims  of  Sheckler,  Armstrong,  Dubois,  Jenkins,  Kirkland,  Blanch- 
ard,  Warner  and  Brown ;  these  claims  should  not  be  allowed.  The 
claimant,  Voohries,  should  be  allowed  to  verify  his  claim. 

James  Harrison,  for  appellants. 

Martin  McKnight,  William  E,  McAfee,  George  B.  Eastin,  for  ap- 
pellees. 


James  Blackwell  v.  W.  D.  Hunter. 

Agency — Sale  of  Real  Estate. 

Where  an  attorney  In  fact  is  the  agent  of  A  and  collects  a  check 
for  his  principal,  he  cannot  be  compelled  to  account  for  and  pay  over 
the  proceeds  to  6  on  an  alleged  claim  of  B  that  the  money  is  due  him 
from  A  for  the  purchase  of  real  estate. 

APPEAL  FROM  OWEN  CIRCUIT  COURT. 

October  21.  1874. 

Opinion  by  Judge  Lindsay  : 

The  cause  of  action  set  out  in  the  petition  is  that  Blackwell,  as 
the  attorney  in  fact  of  Hunter,  collected  for  him  a  check  drawn  in 
his  favor  by  Hugh  Bradley,  and  refused  to  account  for  and  pay 
over  the  proceeds. 

When  Hunter  was  sworn  as  a  witness  in  his  own  behalf,  he  stated 
that  Blackwell  held  the  check  as  agent  for  Bradley,  and  that  he 
(Hunter)  refused  to  receive  it,  claiming  that  he  had  sold  his  land 
to  Bradley  for  money,  and  that  he  would  receive  nothing  else  in  pay- 
ment. It  is  evident  from  Hunter's  own  testimony,  that  he  never  was 
actually  or  constructively  in  possession  of  the  check,  and  that  Blade- 
well  held  it  all  the  while  as  the  agent  of  Bradley.  Hunter  signed  the 
power  of  attorney  to  enable  Blackwell  to  collect  the  check,  merely 


Armstrong  &  Taylcmk  v.  William  M.  Reynolds.  169 

because  it  was  so  drawn  as  to  make  his  signature  requisite  for  that 
purpose,  and  not  because  he  owned  or  pretended  to  own  it. 

After  Blackwell  returned  from  Covington  with  the  money,  Hunter 
distinctly  recognized  the  fact  that  the  money  was  not  his,  and  was 
not  held  by  Blackwell  as  his  agent,  by  entering  into  a  new  agreement 
with  him  relative  to  the  price  to  be  paid  for  the  land.  The  court  be- 
low should  have  instructed  as  in  one  of  a  non  suit,  because  the  plain- 
tiff's own  testimony  showed  that  he  was  not  entitled  to  a  recovery 
on  the  cause  of  action  set  up  in  the  petition. 

But  if  Blackwell  be  treated  as  holding  the  money  for  Bradley, 
charged  with  the  duty  of  paying  it  to  Hunter,  and  it  be  admitted  that 
he  could  be  sued  by  Hunter  without  joining  Bradley  as  a  co-plaintiff, 
still  Hunter  can  not  recover  on  the  proof.  The  promise  of  Black- 
well,  as  the  agent  of  Bradley,  is  supported  by  no  consideration.  It 
is  not  proved  that  either  Bradley  or  Blackwell  are,  or  ever  were  in 
the  actual  possession  of  the  land.  The  contract  of  sale  has  never 
been  reduced  to  writing,  and  therefore  Bradley  can  not  compel 
Hunter  to  execute  it,  and  even  in  this  action  Hunter  does  not  offer 
to  convey.  If  the  judgment  appealed  from  is  allowed  to  stand, 
Hunter  will  receive  the  agreed  consideration  for  the  land,  and  will 
retain  the  title,  leaving  Bradley  without  any  written  evidence  of  his 
purchase,  and  therefore  powerless  to  compel  a  conveyance;  and 
worse  than  all  that,  the  party  compelled  to  pay  the  consideration  is 
one  who  never  had  any  interest  in  the  transaction,  except  as  agent 
for  the  purchaser,  and  who  may  be  without  remedy  against  any  one. 
The  instructions  given  on  appellant's  own  motion,  do  not  conform 
to  our  views  of  the  law,  and  are  less  favorable  to  him  than  they 
should  be.  The  motion  for  a  new  trial  should  have  prevailed.  The 
finding  of  the  jury  is  against  all  the  testimony,  and  in  the  face  of  the 
instructions  of  the  court. 

Judgment  reversed  and  cause  remanded  for  a  new  trial  upon 
principles  consistent  with  this  opinion. 

T,  N.  &  D.  W.  Lindsey,  for  appellant. 

George  C.  Drane,  H.  P.  Montgomery,  for  appellee. 


Armstrong  &  Taylor  v.  William  M.  Reynolds. 

Sale  of  Personal  Property— Delivery— Unrecorded  Mortgage. 

A  valid  sale  of  growing  tobacco  may  be  made  without  delivery  of 
actual  possession  where  not  susceptible  of  actual  delivery. 


170  Kentucky  Opinions. 

Unrecorded  Mortgage. 

An  unrecorded  chattel  mortgage  made  in  good  faith,  not  with  a 
view  to  defraud  other  creditors,  is  valid  between  the  parties  and 
against  all  purchasers  of  the  chattels  described,  having  notice  of  the 
pledge  or  mortgage,  except  purchasers  from  a  creditor  who  had  no 
notice. 

APPEAL  FROM  BRACKEN  CIRCUIT  COURT. 

October  21,  1874. 

Opinion  by  Judge  Cofer  : 

A  valid  absolute  sale  of  the  tobacco  in  contest  in  this  case,  might 
have  been  made  without  a  delivery  of  the  actual  possession  to  the 
vendee,  because  the  tobacco  was  growing  in  the  field  at  the  time  the 
contract  was  made,  and  was,  therefore,  not  susceptible  of  actual 
delivery.  Robbins  v.  Oldham,  i  Duvall  28 ;  Cummings  v.  Griggs  & 
Hays,  2  Duvall  87 ;  Morton  v.  Ragan  &  Dickey,  5  Bush  334. 

If  the  transaction  was  not  a  sale,  but  simply  a  mortgage  or  pledge 
to  secure  a  debt  due  to  the  appellee,  and  to  indemnify  him  as  surety 
for  Tapp,  and  was  made  in  good  faith,  and  not  with  a  view  to  de- 
fraud the  other  creditors  of  the  mortgagor  or  pledgor,  it  was  valid 
between  the  parties  to  such  transaction,  and  against  all  purchasers 
having  notice  of  the  pledge  or  unrecorded  mortgage,  except  purchas- 
ers under  the  exception  of  a  creditor  who  had  no  notice,  such 
purchasers  being  protected  notwithstanding  they  had  notice,  because 
of  the  innocence  of  the  execution.  An  unrecorded  mortgage  is  not 
void,  as  counsel  for  appellants  seems  to  regard  it,  but  is  as  valid  as 
against  persons  having  actual  noticie  of  its  existence  (with  the  excep- 
tion just  noticed)  as  if  it  had  been  recorded.  Morton  v,  RobardSy 
et  aL,  4  Dana  258 ;  Lowe  &  Whitney  v.  Blinco,  Mss.  Opinion,  Sq)- 
tember,  1874. 

The  appellant,  Taylor,  had  actual  notice  of  the  bill  of  sale  before 
he  had  the  execution  of  himself  and  his  partner  levied  on  the  to- 
bacco, and  was  therefore  in  no  condition,  when  sued  for  the  con- 
version of  the  tobacco,  to  resist  appellee's  claim  to  it  on  the  ground 
that  the  writing  had  not  been  recorded. 

The  only  question  in  the  case  was  whether  the  transaction  was 
actually  fraudulent,  and  this  seems  to  us  to  have  been  correctly  pre- 
sented to  the  jury  in  the  instructions  given  by  the  court. 

Both  the  instructions  asked  by  the  appellant's  counsel  were  prop- 
erly refused,  the  first  because  it  assumed  that  there  was  a  fraudu- 
lent  intent  of  the  parties,  and  that  it  was  evidenced  by  the  fact 


Paul  Stockton,  et  al.,  v.  Bank  of  Louisville.  171 

that  appellee  may  have  permitted  Tapp  to  sell  a  part  of  the  propert}' 
named  in  the  writing.  The  jury  should  have  been  left  to  decide 
whether  that  fact  was  evidence  of  a  fraudulent  intent.  The  reasons 
which  justified  the  refusal  to  give  the  second  instruction  have  al- 
ready been  given. 

Conceiving  no  error  to  the  prejudice  of  the  appellants,  the  judg- 
ment is  affirmed  with  damages. 

John  N.  Furber,  for  appellants. 
Thomas  A.  Currman,  for  appellee. 


Paul  Stockton,  et  al.,  v.  Bank  of  Louisville. 

Appeals,  Parties  to— Bankruptcy. 

A  person  who  was  not  a  party  In  the  cause  below  cannot  appeal 
from  a  Judgment  rendered. 

fiankmptcy. 

The  discharge  of  a  person  in  bankruptcy  from  the  pajrment  of  his 
debts  does  not  operate  to  Invest  a  person  holding  a  part  of  his  prop- 
erty, with  title  therein;  such  property  may  be  made  subject  to  pay 
debts  due  creditors. 

APPEAL  FROM  CLINTON  CIRCUIT  COURT. 

October  21,  1874. 

Opinion  by  Judge  Lindsay  : 

The  2nd  section  of  the  act  approved  March  6,  1868,  makes  it  the 
duty  of  the  appellant  or  their  counsel  to  refer  in  their  endorsement 
required  to  be  made  on  the  record  filed  in  this  court,  to  the  judg- 
ment sought  to  be  reversed,  designating  the  page  of  the  record 
where  it  may  be  found,  and  the  term  at  which  it  was  rendered,  and 
to  state  whether  the  appeal  was  granted  in  the  court  below.  In  the 
endorsement  in  this  case,  the  judgment  rendered  at  the  September 
term,  1872,  is  to  be  found  on  pages  184  to  189  of  the  record  so  re- 
ferred to  in  terms,  and  their  slid  endorsement  concludes  as  follows : 
"and  all  final  provisions,  judgments  and  orders  in  the  case  previous 
thereto."  This  portion  of  the  endorsement  does  not  conform  in  any 
degree  to  the  act  cited,  and  therefore  must  be  disregarded.  The 
only  judgment  appealed  from  is  that  found  on  the  pages  mentioned, 
rendered  at  the  September  term,  1872,  of  the  Qinton  Circuit  Court. 

We  do  not  find  that  Phillips  Waller  or  Neal  are  in  any  way  af- 


172  Kentucky  Opinions. 

fected  by  said  judgment.  Hence  no  further  attention  will  be  paid 
to  their  appeals.  H.  W.  Tuttle,  who  styles  himself  assignee  of  Paul 
Stockton,  was  not  a  party  to  the  action  in  the  court  below,  and  there 
is  nothing  before  this  court  from  which  we  can  conclude  that  he 
occupies  the  fiducial  relation  he  claims.  There  is  no  reason,  even  if 
he  be  the  assignee  in  bankruptcy,  why  he  shall  prosecute  this  appeal. 
Not  being  a  party  to  the  action  in  the  lower  court,  its  judgment  can 
not  prejudice  his  rights. 

If  Stockton  had  become  a  bankrupt  after  the  judgment  was  ren- 
dered, his  assignee,  upon  the  production  of  the  proper  evidences  of 
his  appointment  and  qualification,  would  be  allowed  to  prosecute  an 
appeal  from  a  judgment  injuriously  affecting  the  rights  and  inter- 
ests of  the  bankrupt.  But  if  he  desired  to  contest  in  this  action  the 
claims  of  Stockton's  creditors,  he  should  have  made  himself  a  party 
in  the  circuit  court,  were  the  cause  not  pending  for  more  than  two 
years  after  Stockton  was  adjudged  a  bankrupt.  For  these  reasons, 
even  if  there  were  legal  evidences  before  us  that  Tuttle  is  the  as- 
signee of  Stockton,  he  would  not  be  heard  upon  this  appeal. 

A  careful  and  critical  review  of  all  the  testimony  leaves  no  doubt 
upon  our  mind  that  Rebecca  Davis  was  holding  in  fraudulent  trust 
for  Stockton,  an  interest  in  the  property  seized  under  the  attach- 
ments sued  out  in  this  action,  and  that  the  sums  in  the  hands  of  the 
sheriflF  arising  from  the  sales  of  this  property,  and  also  in  the  hands 
of  her  executor,  which  were  directed  to  be  applied  to  the  payment 
of  appellee's)  debt,  do  not  amount  to  more  than  the  value  of  Stock- 
ton's interest  in  the  property  so  held. 

The  discharge  of  Stockton  from  the  payment  of  his  debts,  by  the 
bankrupt  court,  did  not  operate  to  invest  Rebecca  Davis  with  title 
to  the  property  she  was  holding  for  him.  His  creditors  still  had  the 
right  to  subject  this  property  to  the  payment  of  their  debts.  If  it 
was  taken  into  custody  by  the  stat^  court,  the  assignee  in  bankruptcy, 
upon  application,  would  have  had  the  right  to  be  made  a  party,  and 
would  have  been  allowed  to  recover  the  proceeds  of  his  sale,  and 
then  to  distribute  the  amount  so  recovered  among  the  creditors  of 
Stockton  who  might  prove  their  claims  in  the  bankrupt  proceedings. 
But  he  did  not  apply,  and  appellant,  who  had  notice  of  Stockton's 
petition  in  bankruptcy;  and  of  his  ultimate  discharge,  did  not  ask  to 
be  allowed  to  make  his  assignee  a  party,  nor  did  she  ever  sug- 
gest to  the  court  who  the  assignee  was.  Had  she  done  this,  pos- 
sibly the  court  would  have  required  the  appellee  to  make  him  a 
party. 


E.  H.  O'Daniel,  et  al.,  v.  J.  P.  Flannigan,  et  al.         173 

She  failed  to  take  any  steps  to  compel  the  assignee  to  assert  his 
rights,  and  now  that  Stockton's  property,  held  in  fraudulent  trust  by 
her,  has  been  applied  to  the  payment  of  Stockton's  debts,  her  execu- 
tor appeals  to  this  court  to  relieve  her  estate  from  the  danger  of 
again  being  compelled  to  account  for  this  same  property  to  said  as- 
signee. In  other  words,  the  executor  asks  to  be  relieved  against  the 
dangers  of  liability  resulting  from  the  plain  and  palpable  laches  of 
his  intestate. 

We  are  unable  to  ascertain  from  the  record,  how  the  chancellor 
knew  that  Paul  Stockton  was  the  principal  devisee  of  Rebecca  Davis, 
deceased,  but  as  that  fact,  if  it  be  a  fact,  can  cut  no  figure  in  the  de- 
termination of  the  question  before  us,  it  is  immaterial  whether  his 
information  was  or  was  not  correct. 

For  the  reasons  stated  the  judgment  is  aMrmed. 

A,  /.  &  D.  James,  for  appellants. 

Winfrey  &  Winfrey,  Owsley  &  Burdett,  for  appellee. 


E.  H.  O'Daniel^  et  al.,  v.  J.  P.  Flannigan,  et  al. 

Witnesses^ImpeachmenL 

It  is  competent  for  a  party  to  prove  that  a  witness  has  made  state- 
ments out  of  court  contrary  to  what  he  has  testified  to  In  the  trial,  and 
thus  impeach  the  witness. 

Impeachment. 

The  examination  of  impeaching  witnesses  must  be  confined  to  the 
general  reputation  of  the  person  sought  to  be  impeached,  and  such 
witnesses  will  not  be  permitted  to  testify  as  to  particular  facts. 

APPEAL  FROM  MARION  CIRCUIT  COURT. 

October  21,  1874. 

Opinion  by  Judge  Peters  : 

Mills,  who  was  examined  as  a  witness  for  appellee,  proved  that 
he  never  did,  in  a  conversation  with  Robert  Hamilton,  at  the  gate 
or  anywhere  else,  say  that  E.  H.  O'Daniel  had  insulted  him  when 
speaking  to  him  in  relation  to  the  note  sued  on.  This  statement  was 
made  on  cross-examination.  Mills  having  proved  for  appellee  that  he 
met  with  E.  H.  O'Daniel  near  the  court  house  gate  in  Lebanon,  and 
asked  him  when  Flannigan  would  get  his  money,  and  that  O'Daniel 
then  told  him  to  rest  easy,  that  as  soon  as  he  could  wind  up  Pie's 


174  Kentucky  Opinions. 

estate,  Flannigan  should  have  his  money.  The  matter  testified  to  by 
Mills  was  relative  to  the  issue,  and  the  object  of  the  cross-examina- 
tion was  to  call  his  attention  directly  to  the  subject  to  afford  him  the 
opportunity  of  explaining  the  circumstances  under  which  he  made 
the  statement  to  Hamilton,  if  made  at  all ;  and  having  denied  that  he 
had  made  any  such  statement  to  Hamilton,  it  was  competent  for  ap- 
pellants to  prove  that  the  witness  had  made  statements  out  of  court 
contrary  to  what  he  had  testified  to  on  the  trial,  to  impeach  him.  i 
Greenleaf  on  Evidence,  Sec.  462.  The  court  below,  therefore,  erred 
in  sustaining  the  objections  to  Hamilton's  evidence.  On  the  subject 
of  the  evidence  offered  by  appellants  to  impeach  the  credit  of  P.  B. 
O'Daniel,  it  may  suffice  to  say  that  the  examination  of  the  impeach- 
ing witnesses  must  be  confined  to  his  general  reputation,  and  will 
"not  be  permitted  as  to  particular  facts ;  for  the  reason  that  every 
man  is  supposed  to  be  capable  of  supporting  the  one,  but  it  is  not 
likely  that  he  should  be  prepared  to  answer  the  other,  without  notice ; 
and  unless  his  general  character  and  behavior  be  in  issue,  he  has  no 
notice."  i  Greenleaf  on  Evidence,  Sec.  461.  The  court  below  prop- 
erly refused  to  permit  appellants  to  introduce  evidence  as  to  particu- 
lar criminal  acts  of  P.  B.  OTDaniel. 

Instruction  No.  5,  given  to  the  jury  for  appellee,  is  misleading  and 
erroneous.  That  instruction  not  only  directs  the  attention  of  the 
jury  to  the  testimony  of  Mills,  and  thereby  gives  it  special  import- 
ance, but  it  requires  the  jury  to  ascertain  what  was  Mills'  understand- 
ing and  belief  of  certain  statements  made  by  appellants,  or  some  of 
them,  and  then  they  were  to  make  their  verdict  according  to  their 
conclusion  as  to  how  Mills  understood  and  believed  all  or  a  part 
of  said  statements,  instead  of  making  it  upon  all  the  evidence  hearcf 
on  the  trial. 

Instructions  "No.  i  and  2,"  as  asked  by  appellants,  were  more 
properly  refused  because  they  excluded  from  the  consideration  of 
the  jury  the  mental  condition  of  Flannigan  at  the  time,  and  for  the 
further  reason  that  there  is  evidence  in  the  case  that  appellants 
themselves  denied  that  they  had  executed  the  note  sued  on,  and  he 
may  have  acted  on  erroneous  information  received  from  them. 

Those  numbered  3  and  4  were  properly  refused  because  they  make 
the  liability  of  appellants  for^  the  debt  depend  upon  proof  of  their 
authority  to  P.  B.  O'Daniel  to  sign  their  names  to  the  note  before 
it  was  signed,  and  excludes  from  the  jury  evidence  of  their  acknowl- 
edgment of  his  authority  afterwards,  or  of  their  subsequent  ratifi- 
cation of  his  act  of  signing  their  names.     Nor  did  the  court  err  in 


M.  Ellis,  et  al.,  v.  Mary  Baker.  175 

refusing  No.  5  as  asked  by  appellants,  because  it  had  been  given 
substantially  in  Instruction  No.  2,  asked  for  by  appellee.  The  phrase- 
ology of  that  instruction,  however,  is  objectionable.  The  word 
**recognized,"  as  used  in  the  instruction,  is  too  indefinite.  The  party 
must  have  in  language  admitted  the  authority  of  P.  B.  O'Daniel  to 
sign  their  names  to  the  note,  or  acknowledged  their  obligation  to  pay 
the  note.  Only  such  admissions  or  acknowledgments  are  sufficient 
to  bind  the  parties  making  them. 

For  the  reasons  stated  the  judgment  must  be  reversed  and  the 
cause  remanded  for  a  new  trial  and  for  further  proceedings  consist- 
ent herewith. 

Harrison  &  Knott,  for  appellants. 
Russell  &  Azntt,  C,  S.  Hill,  for  appellees. 


M.  Ellis,  et  al.,  v.  Mary  Baker. 

Real  Estate — ^Title  Bond  of  Married  Woman. 

While  a  title  bond  executed  only  by  a  married  woman  is  not  en- 
forcible,  when  she  receives  the  purchase  price  and  purchaaes  other 
property  with  it,  a  court  of  equity  will  not  permit  her  to  retain  both 
the  purchase  money  and  the  property  sold  on  such  bond. 

APPBAL  FROM  DAVIESS  CIRCUIT  COURT. 

October  21,  1874. 

Opinion  by  Judge  Pryor  : 

There  is  no  doubt  but  what  Mrs.  Ellis,  upon  the  payment  of  the 
money  for  which  her  lot  was  sold,  was  entitled  to  the  rights  of  Sue- 
ton,  the  purchaser,  all  of  which  appears  from  the  orders  made  in  the 
case.  The  question  then  arises  as  to  how  Barker  obtained  the  title. 
This  lot  had  been  sold  and  purchased  by  Sutton  to  satisfy  a  debt  due 
by  Mrs.  Ellis  to  McDonald.  Mrs.  Ellis,  in  order  to  save  the  lot, 
sold  it  to  Baker,  or  if  sold  prior  thereto,  received  the  money,  a  part 
of  which  satisfied  the  McDonald  debt,  and  although  the  record  shows 
that  the  money  was  paid  by  Mrs.  Ellis,  it  was  really  paid  by  Baker, 
who  held  the  bond  of  EUlis  and  wife  for  title.  Swope  was  the  attor- 
ney for  all  the  parties  in  connection  with  the  payment  of  this  money, 
and  it  being  paid  by  Baker,  the  attorney  under  the  authority  of  Jlrs. 
Ellis  and  Barker  had  the  order  made  directing  the  deed  to  be  made 
to  Baker,  so  Baker  was  in  fact  substituted  as  purchaser,  he  paying 
the  purchase  money ;  and  not  only  so,  but  he  paid  the  entire  consid- 


176  Kentucky  Opinions. 

eration  for  the  lot,  and  with  the  money,  Ellis  and  wife,  after  paying 
the  McDonald  debt,  purchased  another  house  and  lot  which  they 
now  occupy. 

The  bond  of  a  feme  covert  for  title  cannot,  it  is  true,  be  enforced ; 
but  when  she  receives  the  money  and  purchases  other  real  estate, 
the  chancellor  will  not  favor  her  so  much  as  to  give  her  the  land  she 
sold  and  permit  her  to  retain  what  she  purchased.  There  is  no 
equity  in  this  case  for  the  appellant.  Baker  relieved  the  property 
purchased  by  Sutton  from  the  McDonald  debt,  and  was  substituted 
to  the  rights  of  both  Mrs.  Ellis  and  Sutton  by  reason  of  this  pay- 
ment. The  order  made  for  the  deed  at  a  time  when  the  case  was 
off  the  docket  was  made  by  the  demands  of  the  parties,  and  if  not. 
Baker  is  entitled  to  a  deed.  The  appellant  must  do  equity  before 
asking  it. 

Judgment  aMrtned. 

Ray  &  Walker,  for  appellants. 
Szveeney  &  Stuart,  for  appellee. 


Andrew  Buddy  and  Wife  z\  W.  W.  Phipps  and  Johnson. 


Mortgage  Foreclosure— Redemption. 

Where  the  real  estate  of  the  husband  Is  sold  on  mortgage  fore- 
closure and  bought  In  by  the  creditor  and  conveyed  by  him  to  the  wife 
of  the  debtor  and  paid  for  by  her  out  of  means  not  secured  from  the 
husband,  there  is  no  fraud  on  the  creditors  of  the  husband,  and  such 
property  is  not  liable  for  his  debts. 

APPEAL  FROM  McCRACKBN  CIRCUIT  COURT. 

October  23,  1874. 

Opinion  by  Judge  Peters: 

The  property  now  sought  to  be  subjected  to  the  payment  of  the 
debts  of  Phipps  and  the  representatives  of  Johnson  was  purchased 
by  Levin  Lughes,  under  a  judicial  sale  to  pay  Darenx  and  Johnson, 
to  whom  the  property  had  been  mortgaged  and  who  had  judgments 
of  foreclosure.  It  sold  for  enough  to  pay  Darenx's  debt  and  per- 
haps a  small  part  of  Johnson's.  King,  the  attorney  of  Johnson,  was 
present  at  the  sale,  representing  his  client,  and  if  it  brought  less  than 
it  was  worth  it  is  the  fault  or  misfortune  of  Johnson,  for  his  attor- 
ney proves  he  knew  Lughes  was  bidding  for  Mrs.  Buddy,  and  on 
that  account  stopped  bidding.  After  the  sale,  Mrs.  Buddy,  as  is 
shown  by  the  evidence,  borrowed  $800  of  Sites,  and  about  $200  of 


Andrew  Buddy  and  Wife  v,  W.  W.  Phipps  and  Johnson.      177 

Mrs.  Sanders,  and  paid  Lughes  the  price  he  paid  for  the  property ; 
and  he  conveyed  the  same  to  her,  having  received  a  conveyance 
from  the  master;  and  in  order  to  secure  Sites,  Mrs.  Buddy  mort- 
gaged the  property  to  him,  and  he  in  this  suit  seeks  a  foreclosure 
of  his  nK>rtgage.  Mrs.  Sanders,  as  she  proves,  has  been  paid  her 
money  back  by  Mrs.  Buddy,  except  $20.  The  conveyance  by  Lughes 
to  Mrs.  Buddy  is  not  embraced  by  the  statute  against  fraudulent  con- 
veyances. That  statute  operates  on  conveyances  made  by  the  debtor. 
In  this  case  Buddy  was  divested  of  the  title  by  a  judicial  proceeding, 
and  was  no  party  to  the  conveyance. 

There  is  no  evidence  that  A.  Buddy  furnished  any  part  of  the 
money  to  his  wife  to  aid  her  in  paying  for  the  land  and  procuring 
the  title  to  be  made  to  her ;  but  it  appears  that  on  her  credit  alone  the 
purchase  money  was  raised.  Sites  and  Mrs.  Saunders  loaned  her 
the  money  on  her  credit.  By  the  rules  of  the  common  law  it  is  very 
clear  that  if  A.  Buddy,  the  debtor,  had  furnished  the  money  to  his 
wife  to  pay  for  the  property,  and  procured  the  title  to  be  made  to  her 
with  the  fraudulent  intent  to  remove  it  from  the  reach  of  prior  cred- 
itors, that  the  transaction  would  be  condemned  and  the  property 
subjected ;  but  that  is  not  the  case  here.  The  friends  of  the  wife, 
and  not  her  husband,  furnished  her  the  money  to  redeem  real  estate 
sold  in  part  to  pay  the  debt  of  one  of  the  creditors  now  complaining 
that  his  attorney  saw  it  sold,  and  if  the  purchasers  had  retained  the 
title,  it  is  not  pretended  that  it  could  be  reached  by  these  creditors ; 
but  after  he  had  obtained  the  legal  title  he  permitted  the  wife  of  the 
debtor  to  redeem  it,  which  she  is  enabled  to  do  by  the  aid  of  friends, 
and  not  with  the  money  of  her  husband,  as  is  satisfactorily  shown ; 
and  we  are  not  aware  of  any  rule  of  law  or  equity  that  will  deprive 
her  of  the  estate.  The  creditors  are  in  no  worse  condition  than  if 
Lughes  had  retained  it,  and  the  profits  of  the  estate  may  have 
enabled  her  to  pay  the  borrowed  money.  It  is  proper  to  state  that 
Phipps  has  failed  to  produce  the  evidence  of  his  debts  against  A. 
Buddy,  although  such  indebtedness  is  controverted  and  put  in  issue 
by  the  answer  of  Mrs.  Buddy. 

Wherefore  the  judgment  in  favor  of  Phipps,  and  in  favor  of  Pres- 
wood  and  wife,  and  Rollins  arid  wife,  are  reversed,  and  the  cause  is 
remanded  with  directions  to  dismiss  the  cross-petition  of  the  last 
named  parties  against  Mrs.  P.  Buddy  at  the  costs  of  cross-petition- 
ers, and  for  further  proceedings  consistent  herewith. 

£.  L.  Bullock,  for  appellants. 
G.  H.  Morrow,  for  appellees. 

12 


178  Kentucky  Opinions. 

Andrew  Randall,  et  al.,  v.  Elizabeth  T.  Randall. 

Judgment*— Mortgage— Description  of  Real  Estate. 

It  Is  error  to  render  a  personal  judgment  against  infant  defendants. 

Judgment 

The  law  does  not  prescribe  how  judicial  sales,  where  mortgages  are 
foreclosed,  shall  be  advertised,  and  it  is  error  for  a  judgment  to  fail 
to  designate  the  manner  in  which  such  sales  shall  be  advertised. 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

October  24,  1874. 

Opinion  by  Juekse  Lindsay: 

It  was  error  to  render  a  personal  judgment  against  the  infant 
defendants. 

The  judgment  fails  to  describe  the  realty  adjudged  to  be  sold, 
except  by  reference  to  the  description  set  out  in  the  petition  and  in 
the  copy  of  the  mortgage  on  file.  This  left  the  commissioner  to 
determdne  judicially  which  lots  or  parts  of  lots  were  to  be  sold.  The 
judgment  directed  the  commissioner  to  advertise  the  sale  according 
to  law.  The  law  does  not  prescribe  how  judicial  sales,  where  mort- 
gages are  foreclosed,  shall  be  advertised.  It  is  error  in  such  cases 
for  the  chancellor  to  fail  to  prescribe  the  manner  in  which  the  sale 
shall  be  advertised.  It  is  not  necessary  to  consider  the  remaining 
questions  presented  by  the  appeal. 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

O.  B,  Hallam,  Carlisle  &  Forte,  for  appellants, 
Stevenson  &  O'Hara,  for  appellee. 


Kanawha  &  Ohio  Coal  Co.  v.  A.  D.  Hunt,  et  al. 

Judgment'— Process    Came  of  Action. 

No  valid  Judgment  can  be  taken  against  a  party  not  served  with 
process  and  who  does  not  appear  to  the  action. 

Cause  of  Action. 

A  party  seeking  to  recover  as  the  assignee  of  another  must  do  so,  if 
at  all,  on  the  cause  of  action  set  up  by  his  assignor,  and  not  on  a 
separate  cause  of  action  he  may  have  independent  of  the  rights  he 
secured  by  the  assignment. 


Henry  Payne  v.  John  Farr.  179 

APPEAL  PROM  KENTON  CIRCUIT  COURT. 

October  24,  1874. 

Opinion  by  Judge  G>fer  : 

The  authority  of  Smith  to  bind  appellant  was  distinctly  denied 
in  the  answer,  and  was  not  proved.  The  appellant  also  distinctly 
denied  that  any  settlement  had  ever  been  made,  and  also  denied  any 
indebtedness  to  the  appellee,  Hunt,  and  none  was  proved,  the  mas- 
ter's report  being  based  alone,  as  it  appears,  upon  the  writing  sued 
on,  which,  for  want  of  proof  of  Smith's  authority,  was  no  evidence 
of  indebtedness  on  the  part  of  appellant. 

Jackson  never  was  made  a  party  to  the  suit,  and  if  he  had  been, 
he  was  not  entitled  to  a  judgment.  His  answer,  which  was  allowed 
to  be  filed  as  if  he  had  been  a  defendant,  was  made  a  cross-petition 
against  the  appellant,  who  was  his  co-defendant,  and  no  process 
thereon  having  been  served,  and  appellant  never  having  appeared 
to  the  cross-petition,  the  judgment  in  his  favor  was  void.  Nor  can 
the  judgment  in  his  favor  be  upheld  on  the  ground  that  it  was  for  a 
part  of  the  demand  sued  for  by  Hunt,  and  assigned  by  him  pending 
the  action  to  Jackson.  Hunt  sued  on  the  writing  signed  by  Smith, 
and  Jackson  has  recovered  a  judgment  on  notes  of  appellant  exe- 
cuted to  him;  and  an  entirely  distinct  cause  of  action  is  set  up  for 
the  first  time  in  Jackson's  cross-petition. 

If  Jackson  would  recover  as  the  assignee  of  Hunt,  he  must  re- 
cover on  the  cause  of  action  set  up  by  his  assignor ;  and  if  he  seeks 
to  recover  on  the  notes  filed  with  his  answer  and  cross-petition,  he 
should  proceed  in  a  separate  action. 

Wherefore  the  judgments  are  reversed,  and  the  cause  is  remanded 
with  directions  to  strike  Jackson's  answer  from  the  files,  and  for 
further  proceedings. 

/.  C.  Carlisle,  for  appellant 
Benton  &  Benton,  for  appellees. 


Henry  Payne  v.  John  Farr. 

Penonal  Property— Sale^Innocent  Purchaser. 

A  contract  of  sale  of  personal  property,  where  the  title  is  retained 
in  the  seller  until  paid  for,  will  not  enable  the  seller  to  recover  the 
property  from  an  innocent  purchaser  from  his  vendee. 


178  Kentucky  Opinions. 

Andrew  Randall,  et  al.,  v,  Elizabeth  T.  Randall. 

Judgment*— Mortgage — ^Description  of  Real  Estate. 

It  is  error  to  render  a  personal  Judgment  against  infant  defendants. 

Judgment 

The  law  does  not  prescribe  how  judicial  sales,  where  mortgages  are 
foreclosed,  shall  be  advertised,  and  it  is  error  for  a  Judgment  to  fail 

to  designate  the  manner  in  which  such  sales  shall  be  advertised. 

» 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

October  24,  1874. 

Opinion  by  Judge  Lindsay  : 

It  was  error  to  render  a  personal  judgment  against  the  infant 
defendants. 

The  judgment  fails  to  describe  the  realty  adjudged  to  be  sold, 
except  by  reference  to  the  description  set  out  in  the  petition  and  in 
the  copy  of  the  mortgage  on  file.  This  left  the  commissioner  to 
determine  judicially  which  lots  or  parts  of  lots  were  to  be  sold.  The 
judgment  directed  the  commissioner  to  advertise  the  sale  according 
to  law.  The  law  does  not  prescribe  how  judicial  sales,  where  mort- 
gages are  foreclosed,  shall  be  advertised.  It  is  error  in  such  cases 
for  the  chancellor  to  fail  to  prescribe  the  manner  in  which  the  sale 
shall  be  advertised.  It  is  not  necessary  to  consider  the  remaining 
questions  presented  by  the  appeal. 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

O.  B,  HcUlam,  Carlisle  &  Forte,  for  appellants, 
Stevenson  &  O'Hora,  for  appellee. 


Kanawha  &  Ohio  Coal  Co.  v.  A.  D.  Hunt,  et  au 

Jndgment— Proces»— Cauae  of  Action. 

No  valid  Judgment  can  be  taken  against  a  party  not  served  with 
process  and  who  does  not  appear  to  the  action. 

Cause  of  Action. 

A  party  seeking  to  recover  as  the  assignee  of  another  must  do  so,  if 
at  all»  on  the  cause  of  action  set  up  by  his  assignor,  and  not  on  a 
separate  cause  of  action  he  may  have  independent  of  the  rights  he 
secured  by  the  assignment. 


Henry  Payne  v.  John  Farr.  179 

APPEAL  FROM  KBNTON  CIRCUIT  COURT. 

October  24,  1874. 

Opinion  by  Judge  Cofer  : 

The  authority  of  Smith  to  bind  appellant  was  distinctly  denied 
in  the  answer,  and  was  not  proved.  The  appellant  also  distinctly 
denied  that  any  settlement  had  ever  been  made,  and  also  denied  any 
indebtedness  to  the  appellee,  Hunt,  and  none  was  proved,  the  mas- 
ter's report  being  based  alone,  as  it  appears,  upon  the  writing  sued 
on,  which,  for  want  of  proof  of  Smith's  authority,  was  no  evidence 
of  indebtedness  on  the  part  of  appellant. 

Jackson  never  was  made  a  party  to  the  suit,  and  if  he  had  been, 
he  was  not  entitled  to  a  judgment.  His  answer,  which  was  allowed 
to  be  filed  as  if  he  had  been  a  defendant,  was  made  a  cross-petition 
against  the  appellant,  who  was  his  co-defendant,  and  no  process 
thereon  having  been  served,  and  appellant  never  having  appeared 
to  the  cross-petition,  the  judgment  in  his  favor  was  void.  Nor  can 
the  judgment  in  his  favor  be  upheld  on  the  ground  that  it  was  for  a 
part  of  the  demand  sued  for  by  Hunt,  and  assigned  by  him  pending 
the  action  to  Jackson.  Hunt  sued  on  the  writing  signed  by  Smith, 
and  Jackson  has  recovered  a  judgment  on  notes  of  appellant  exe- 
cuted to  him ;  and  an  entirely  distinct  cause  of  action  is  set  up  for 
the  first  time  in  Jackson's  cross-petition. 

If  Jackson  would  recover  as  the  assignee  of  Hunt,  he  must  re- 
cover on  the  cause  of  action  set  up  by  his  assignor ;  and  if  he  seeks 
to  recover  on  the  notes  filed  with  his  answer  and  cross-petition,  he 
should  proceed  in  a  separate  action. 

Wherefore  the  judgments  are  reversed,  and  the  cause  is  remanded 
with  directions  to  strike  Jackson's  answer  from  the  files,  and  for 
further  proceedings. 

/.  C.  Carlisle,  for  appellant. 
Benton  &  Benton,  for  appellees. 


Henry  Payne  v.  John  Farr. 

Penonal  Property— Sale^Innocent  Purchaser. 

A  contract  of  sale  of  personal  property,  where  the  title  is  retained 
in  the  seller  nntil  paid  for,  will  not  enable  the  seller  to  recover  the 
property  from  an  innocent  purchaser  from  his  voidee. 


178  Kentucky  Opinions. 

Andrew  Randall,  et  al.,  v.  Elizabeth  T.  Randall. 

Judgment! — Mortgage— Description  of  Real  Estate. 

It  Is  error  to  render  a  personal  judgment  against  infant  defendants. 

Judgment 

The  law  does  not  prescribe  how  judicial  sales,  where  mortgages  are 
foreclosed,  shall  be  advertised,  and  it  is  error  for  a  judgment  to  fail 
to  designate  the  manner  in  which  such  sales  shall  be  advertised. 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

October  24,  1874. 

Opinion  by  Judge  Lindsay  : 

It  was  error  to  render  a  personal  judgment  against  the  infant 
defendants. 

The  judgment  fails  to  describe  the  realty  adjudged  to  be  sold, 
except  by  reference  to  the  description  set  out  in  the  petition  and  in 
the  copy  of  the  mortgage  on  file.  This  left  the  commissioner  to 
determine  judicially  which  lots  or  parts  of  lots  were  to  be  sold.  The 
judgment  directed  the  commissioner  to  advertise  the  sale  according 
to  law.  The  law  does  not  prescribe  how  judicial  sales,  where  mort- 
gages are  foreclosed,  shall  be  advertised.  It  is  error  in  such  cases 
for  the  chancellor  to  fail  to  prescribe  the  manner  in  which  the  sale 
shall  be  advertised.  It  is  not  necessary  to  consider  the  remaining 
questions  presented  by  the  appeal. 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

O.  S.  HcUlam,  Carlisle  &  Forte,  for  appellants. 
Stevenson  &  O'Hpra,  for  appellee. 


Kanawha  &  Ohio  Coal  Co.  v.  A.  D.  Hunt,  et  al. 

Judgment — Procesa    Cause  of  Action. 

No  valid  Judgment  can  be  taken  against  a  party  not  served  with 
process  and  who  does  not  appear  to  the  action. 

Cause  of  Action. 

A  party  seeking  to  recover  as  the  assignee  of  another  must  do  so,  if 
at  all,  on  the  cause  of  action  set  up  by  his  assignor,  and  not  on  a 
separate  cause  of  action  he  may  have  independent  of  the  rights  he 
secured  by  the  assignment 


Henry  Payne  v.  John  Farr.  179 

APPSIAL  FROM  KENTON  CIRCUIT  COURT. 

October  24,  1874. 

Opinion  by  Judge  Cofer  : 

The  authority  of  Smith  to  bind  appellant  was  distinctly  denied 
in  the  answer,  and  was  not  proved.  The  appellant  also  distinctly 
denied  that  any  settlement  had  ever  been  made,  and  also  denied  any 
indebtedness  to  the  appellee,  Hunt,  and  none  was  proved,  the  mas- 
ter's report  being  based  alone,  as  it  appears,  upon  the  writing  sued 
on,  which,  for  want  of  proof  of  Smith's  authority,  was  no  evidence 
of  indebtedness  on  the  part  of  appellant. 

Jackson  never  was  made  a  party  to  the  suit,  and  if  he  had  been, 
he  was  not  entitled  to  a  judgment.  His  answer,  which  was  allowed 
to  be  filed  as  if  he  had  been  a  defendant,  was  made  a  cross-petition 
against  the  appellant,  who  was  his  co-defendant,  and  no  process 
thereon  having  been  served,  and  appellant  never  having  appeared 
to  the  cross-petition,  the  judgment  in  his  favor  was  void.  Nor  can 
the  judgment  in  his  favor  be  upheld  on  the  ground  that  it  was  for  a 
part  of  the  demand  sued  for  by  Hunt,  and  assigned  by  him  pending 
the  action  to  Jackson.  Hunt  sued  on  the  writing  signed  by  Smith, 
and  Jackson  has  recovered  a  judgment  on  notes  of  appellant  exe- 
cuted to  him;  and  an  entirely  distinct  cause  of  action  is  set  up  for 
the  first  time  in  Jackson's  cross-petition. 

If  Jackson  would  recover  as  the  assignee  of  Hunt,  he  must  re- 
cover on  the  cause  of  action  set  up  by  his  assignor ;  and  if  he  seeks 
to  recover  on  the  notes  filed  with  his  answer  and  cross-petition,  he 
should  proceed  in  a  separate  action. 

Wherefore  the  judgments  are  reversed,  and  the  cause  is  remanded 
with  directions  to  strike  Jackson's  answer  from  the  files,  and  for 
further  proceedings. 

/.  C.  Carlisle,  for  appellant 
Benton  &  Benton,  for  appellees. 


Henry  Payne  v.  John  Farr. 

Penonal  Property— Sale^Innocent  Purchaser. 

A  contract  of  sale  of  personal  property,  where  the  title  is  retained 
in  the  seller  until  paid  for,  will  not  enable  the  seller  to  recover  the 
property  from  an  innocent  purchaser  from  his  vendee. 


178  Kentucky  Opinions. 

Andrew  Randall,  et  al.,  v,  Elizabeth  T.  Randall. 

Judgments— Mortgage— -Description  of  Real  Estate. 

It  is  error  to  render  a  personal  Judgment  against  infant  defendants. 

Judgment. 

The  law  does  not  prescribe  how  judicial  sales,  where  mortgages  are 
foreclosed,  shall  be  advertised,  and  it  is  error  for  a  Judgment  to  fail 
to  designate  the  manner  in  which  such  sales  shall  be  advertised. 

APPEAL  PROM  KENTON  CIRCUIT  COURT. 

October  24,  1874. 

Opinion  by  Judge  Lindsay  : 

It  was  error  to  render  a  personal  judgment  against  the  infant 
defendants. 

The  judgment  fails  to  describe  the  realty  adjudged  to  be  sold, 
€xcept  by  reference  to  the  description  set  out  in  the  petition  and  in 
the  copy  of  the  mortgage  on  file.  This  left  the  commissioner  to 
determdne  judicially  which  lots  or  parts  of  lots  were  to  be  sold.  The 
judgment  directed  the  conunissioner  to  advertise  the  sale  according 
to  law.  The  law  does  not  prescribe  how  judicial  sales,  where  mort- 
gages are  foreclosed,  shall  be  advertised.  It  is  error  in  such  cases 
for  the  chancellor  to  fail  to  prescribe  the  manner  in  which  the  sale 
shall  be  advertised.  It  is  not  necessary  to  consider  the  remaining 
questions  presented  by  the  appeal. 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

O.  B.  Hallam,  Carlisle  &  Forte,  for  appellants. 
Stevenson  &  O'Hora,  for  appellee. 


Kanawha  &  Ohio  Coal  Co.  v.  A.  D.  Hunt,  et  al. 

Judgment— Process    Cause  of  Action. 

No  valid  judgment  can  be  taken  against  a  party  not  served  with 
process  and  who  does  not  appear  to  the  action. 

Cause  of  Action. 

A  party  seeking  to  recover  as  the  assignee  of  another  must  do  so,  if 
at  all,  on  the  cause  of  action  set  up  by  his  assignor,  and  not  on  a 
separate  cause  of  action  he  may  have  independent  of  the  rights  he 
secured  by  the  assignment 


Henry  Payne  v.  John  Farr.  179 

APPEAL  FROM  KBNTON  CIRCUIT  COURT. 

October  24,  1874. 

Opinion  by  Judge  Cofer  : 

The  authority  of  Smith  to  bind  appellant  was  distinctly  denied 
in  the  answer,  and  was  not  proved.  The  appellant  also  distinctly 
denied  that  any  settlement  had  ever  been  made,  and  also  denied  any 
indebtedness  to  the  appellee,  Hunt,  and  none  was  proved,  the  mas- 
ter's report  being  based  alone,  as  it  appears,  upon  the  writing  sued 
on,  which,  for  want  of  proof  of  Smith's  authority,  was  no  evidence 
of  indebtedness  on  the  part  of  appellant. 

Jackson  never  was  made  a  party  to  the  suit,  and  if  he  had  been, 
he  was  not  entitled  to  a  judgment.  His  answer,  which  was  allowed 
to  be  filed  as  if  he  had  been  a  defendant,  was  made  a  cross-petition 
against  the  appellant,  who  was  his  co-defendant,  and  no  process 
thereon  having  been  served,  and  appellant  never  having  appeared 
to  the  cross-petition,  the  judgment  in  his  favor  was  void.  Nor  can 
the  judgment  in  his  favor  be  upheld  on  the  ground  that  it  was  for  a 
part  of  the  demand  sued  for  by  Hunt,  and  assigned  by  him  pending 
the  action  to  Jackson.  Hunt  sued  on  the  writing  signed  by  Smith, 
and  Jackson  has  recovered  a  judgment  on  notes  of  appellant  exe- 
cuted to  him ;  and  an  entirely  distinct  cause  of  action  is  set  up  for 
the  first  time  in  Jackson's  cross-petition. 

If  Jackson  would  recover  as  the  assignee  of  Hunt,  he  must  re- 
cover on  the  cause  of  action  set  up  by  his  assignor ;  and  if  he  seeks 
to  recover  on  the  notes  filed  with  his  answer  and  cross-petition,  he 
should  proceed  in  a  separate  action. 

Wherefore  the  judgments  are  reversed,  and  the  cause  is  remanded 
with  directions  to  strike  Jackson's  answer  from  the  files,  and  for 
further  proceedings. 

/.  C  Carlisle,  for  appellant 
Benton  &  Benton,  for  appellees. 


Henry  Payne  v.  John  Farr. 

Personal  Propertsr— Sale^Innocent  Purchaser. 

A  contract  of  sale  of  personal  property,  where  the  title  is  retained 
in  the  seller  until  paid  for,  will  not  enable  the  seller  to  recover  the 
property  from  an  innocent  purchaser  from  his  vendee. 


i8o  Kentucky  Opinions. 

APPEAL  FROM  BOURBON  CIRCUIT  COURT. 

October  24,  1874. 

Opinion  by  Judge  Cofer  : 

Without  deciding  whether  there  is  such  a  bill  of  exceptions  as 
would  warrant  us  in  reversing  the  judgment,  if  it  appeared  to  be 
erroneous,  we  feel  bound  to  affirm  it.  If  every  fact  the  evidence 
even  tends  to  prove  be  treated  as  established,  still  the  verdict  and 
judgment  are  right,  for  there  is  no  evidence  whatever  upon  whidi 
an  instruction  authorizing  the  jury  to  find  for  the  appellant  could 
have  been  predicated. 

The  evidence  does  not  even  tend  to  prove  that  the  appellant  was, 
by  the  terms  of  the  contract  of  sale,  to  retain  the  title  until  the 
check  was  paid,  and  if  it  did,  we  have  decided  at  this  term  in 
Vaughn  v.  Hopsan,  overruling  Potion  v,  McCane,  15  B.  Mon.  555, 
that  a  stipulation  in  the  contract  of  sale  of  personal  property,  that 
the  title  is  to  remain  in  the  vendor  until  the  property  is  paid  for, 
will  not  enable  the  seller  to  recover  the  property  from  an  innocent 
purchaser  from  his  vendee.     Wherefore  the  judgment  is  afhrmed. 

A.  M.  Swope,  for  appellant. 
Brent  &  McMillan,  for  appellee. 


Reuben  Ard,  et  al.,  v.  Elizabeth  Burton,  et  al. 

Practice— Quieting  Title. 

Where  no  objection  is  made,  in  the  circuit  court,  to  the  form  of  the 
action  or  to  the  misjoinder  of  actions,  it  is  too  late  to  make  such  objec- 
tions on  appeal. 

Quieting  Title. 

Where  appellees  have  shown  both  title  and  possession  in  them- 
selves, they  are  entitled  to  have  such  title  and  possession  quieted. 

APPEAL  FROM  GARRARD  CIRCUIT  COURT. 

October  26,  1874. 

Opinion  by  Judge  Lindsay  : 

There  is  nothing  in  the  record  tending  to  show  that  any  portion 
of  the  lands  covered  by  the  patent  to  J,  R.  Burton  was  in  the  actual 
possession  of  appellants,  or  their  ancestor,  or  any  one  else,  at  the 


Reuben  Ard,  et  al.,  v.  Elizabeth  Burton,  et  al.        i8i 

time  cither  of  the  entry  or  survey,  or  at  the  time  the  patent  was 
issued.  We  cannot,  therefore,  hold  said  patent  to  be  void.  It  is 
manifest  that  no  part  of  the  land  claimed  by  appellees  is  embraced 
by  the  patent  to  Cobum  Crutchfield,  of  date  of  February  17,  1837. 
To  make  said  patent  cover  such  land,  or  any  portion  of  it,  it  is 
necessary  to  include  within  its  boundaries  535  instead  of  200  acres, 
and  the  last  line  will  have  to  be  extended  378  poles  beyond  the 
calls  of  the  survey.  It  is  not  to  be  presumed  that  any  such  mistakes 
as  these  could  have  been  made  by  the  surveyor  who  made  the  sur- 
vey upon  which  said  patent  was  issued.  Appellees  did  not,  in  the 
circuit  court,  object  to  the  form  of  the  action,  nor  to  the  improper 
joinder  of  the  several  causes  of  action.  It  is  too  late  to  raise  these 
questions  in  this  court.  While  it  is  not  generally  necessary  in  ac- 
tions for  the  recovery  of  realty,  that  the  defendant  shall  manifest 
his  title,  still,  in  this  action,  as  the  patent  under  which  appellees 
claim  covers  the  land  in  controversy,  it  was  necessary  that  appellants 
should  show  a  superior  outstanding  title ;  otherwise  appellees  were 
entitled  to  relief. 

If  this  be  treated  as  an  action  to  quiet  title,  the  cause  of  action 
is  made  out.  It  is  not  denied  that  the  plaintiffs  are  the  widow  and 
heirs  at  law  of  James  R.  Burton,  deceased;  hence  the  leg^l  title 
held  by  him  under  his  patent  from  the  commonwealth  passed  to 
them  by  the  laws  of  descent.  They  aver  that  immediately  after  the 
patent  was  issued,  J.  R.  Burton,  the  patentee,  took  possession  of  the 
land  and  that  "They,  as  his  widow  and  heirs,  have  been  holding, 
occupying  and  claiming  the  same  since  his  death,  under  his  title." 
Appellants  attempt  to  deny  this  essential  allegation,  as  follows: 
"They  deny  that  plaintiffs  have  been  holding,  occupying  and  claim- 
ing the  same  since  said  James  R.  Burton's  death,  under  his  or  any 
other  title."  The  effect  of  this  plea  is  merely  to  deny  that  they  have 
held  under  the  title  of  James  R.  Burton,  deceased,  or  under  any 
title,  and  not  to  deny  the  specific  and  mtetterial  allegation  of  pos- 
session. Again  they  state  arguendo  that  they  and  those  under 
whom  they  claim  have  had  actual  possession  under  the  Crutchfield 
patent  for  more  than  thirty-odd  years,  and  hence  they  say  that 
"plaintiffs  never  have  had  possession  of  one  inch  of  the  land."  This 
conclusion,  which  can  scarcely  be  regarded  as  the  averment  of  a 
fact,  is  made  by  appellants  to  depend  upon  the  principal  averment, 
that  is,  "that  they  and  those  under  whom  they  claim  had  all  the 
while  actual  possession  under  the  Crutchfield  patent."  Now,  as 
said  patent  does  not  cover  any  portion  of  the  land,  this  affirmative 


i82  Kentucky  Opinions. 

averment  of  a  fact  inconsistent  with  appellee's  allegation  of  posses- 
sion is  not  made  out. 

It  follows,  therefore,  that  appellants  have  failed  to  deny  specifi- 
cally the  allegation  of  possession,  and  have  failed  to  avoid  by 
pleading  and  proving  a  fact  inconsistent  therewith.  Hence  appel- 
lees, having  shown  both  possession  and  the  leg^l  title  in  themselves, 
are  entitled  to  have  their  said  possession  and  title  quieted. 

Judgment  afHrmed. 

R.  M.  &  W,  O.  Bradley,  for  appellants, 
T.  Z.  Froman,  for  appellees. 


Adams  Express  Company  v,  W.  C.  Goodloe. 

Bill  of  Bxceptions—Eztension  of  Time  for  Filing. 

When  the  court  by  consent  of  the  parties  extends  the  time  for  pre- 
senting a  bill  of  exceptions  to  the  10th  day  of  the  month,  but  appel- 
lant presents  them  on  the  8th  day  of  the  month,  at  a  time  when  ap- 
pellee's attorney  was  absent  and  had  no  opportunity  to  examine  it, 
the  court  of  appeals  will  not  consider  it. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

October  27,  1874. 

Opinion  by  Judge  Pryor: 

On  May  31,  1872,  time  was  given  the  appellant  until  the  first  day 
of  the  next  February  term  to  present  the  bill  of  exceptions.  On 
February  3,  the  time  was  extended  until  the  tenth  day  of  the  term 
by  consent,  and  on  February  28  the  exceptions  were  signed  and 
ordered  to  be  made  part  of  the  record.  This  all  appears  from  the 
order  made  in  open  court  in  the  case.  The  judge,  in  the  bill  of  ex- 
ceptions signed,  states  "that  by  consent  of  parties  the  time  for  the 
production  and  filing  the  bill  of  exceptions  is  extended  ten  days  and 
that  on  February  8,  1879,  the  defendant  produced  to  the  court  his 
bill  of  exceptions  and  asked  that  they  might  be  made  part  of  the 
record,  which  is  done."  It  is  evident  that  the  appellees  consented 
that  the  extension  might  be  made  until  the  tenth  day  of  the  term, 
and  there  is  no  inccxisistency  between  this  order  and  the  statement 
by  the  court  in  the  bill  of  exceptions  as  to  the  time.  If  produced  on 
the  tenth  day  of  the  term,  it  was  the  duty  of  counsel,  by  reason  of 
the  order,  to  have  been  present  on  that  day,  and  if  he  failed  to  do 
so,  he  could  not  afterwards  complain  that  he  had  no  opportunity  of 


Board  of  G>uncilmen  of  Uniontown  v.  B.  C  David,  et  al.     183 

examining  what  had  been  tendered  by  his  adversary  as  the  evidence 
in  the  case. 

The  order  of  the  court  must  be  regarded  as  the  best  evidence  of 
the  consent  by  appellee,  and  particularly  when  there  is  no  real  con- 
flict as  to  the  time  when  the  evidence  was  to  be  produced  between 
the  recital  in  the  order  and  the  statement  of  the  judge.  The  bill 
of  exceptions  was  handed  to  the  judge  on  February  8.  This  was  not 
in  accordance  with  the  consent  order,  and  to  hold  the  contrary 
would  have  kept  the  client  or  his  counsel  in  court  every  day  until 
the  tenth,  looking  out  for  the  filing  of  the  bill  of  exceptions.  Nor 
does  this  work  any  hardship  on  the  appellants.  The  case  was  tried 
in  August,  1872.  There  is  no  reason  assigned  why  the  time  for 
filing  was  extended  till  the  first  day  of  the  next  February  term.  It 
is  to  be  presumed,  however,  that  the  reason  assigned  was  sufficient. 
Still,  on  the  first  day  of  that  term,  no  bill  of  exceptions  is  filed  or  ten- 
dered, and  now  when  from  the  record  it  is  filed  at  a  time  when  ap- 
pellee was  not  present,  and  when  not  required  to  be  present,  then 
appellant  should  not  complain  when  the  paper  offered  as  the  bill  of 
exceptions  is  disregarded.  The  case  of  Smith,  et  al,,  v,  Blakeman,  8 
Bush  476,  is  conclusive  of  this  case.  It  is  true  the  parties  may  make 
a  correct  order  by  which  they  will  be  governed ;  but  in  this  case  the 
correct  order  protects  the  appellee  from  the  injustice  that  might  re- 
sult to  litigants  if  the  party  complaining  of  a  judgment  is  allowed, 
at  any  time  to  render  and  file  his  bill  of  exceptions.  Judgment 
atHrtned. 

Z,  Gibbson,  for  appellant. 
John  B,  Huston,  for  appellee. 


Board  of  Councilmen  of  Uniontown  v.  B.  C.  David,  et  al. 

Dedication  of  Real  Estate  to  Public  Uses— Acceptance. 

Where  a  plat  is  filed  purporting  to  dedicate  a  town  lot  to  tlie  public 
use,  but  before  it  is  accepted  by  the  public,  the  donor  has  withdrawn 
his  proposal,  the  town  fails  to  secure  any  title  thereto. 

APPEAL  FROM  UNION  CIRCUIT  COURT. 

October  28,  1874. 

Opinion  by  Judge  Lindsay  : 

It  may  be  assumed  that  the  plat  of  1848  was  made  matter  of 
record  upon  motion  of  E.  K.  James,  and  that  this  was  done  with 


184  Kentucky  Opinions. 

the  assent  of  Mrs.  David,  who  was  beneficially  interested  in  the 
realty  laid  off  into  town  lots.  It  may  further  be  assumed  as  an 
established  fact,  that  David  sold  lots  of  this  plat,  and  that  purchases 
were  made  by  persons  having  knowledge  of  the  fact  that  the  square 
now  in  controversy  was  known  and  designated  as  "The  Public 
Square."  If  said  public  square  was  in  the  nature  of  a  street  or  pass- 
way,  or  of  a  wharf,  or  of  a  common  in  which  all  the  citizens  of  the 
town  would  have  the  right  of  actual  use,  and  in  which  their  in- 
terests would  be  in  the  nature  of  incorporeal  hereditament,  it  would 
follow  that  by  the  publication  of  the  plat  and  the  sale  of  lots  under 
it,  David  would  have  pledged  to  each  purchaser  a  vested  right  in 
and  to  the  dedication  so  proposed  to  be  made ;  and  for  the  protec- 
tion of  the  persons  so  purchasing,  an  acceptance  of  the  proffered 
dedication  by  the  municipality  would  be  implied. 

It  is  evident,  however,  that  no  one  understood  that  the  lot  was 
to  be  sold  for  either  of  the  purposes  indicated,  or,  indeed,  for  any 
kindred  purpose.  If  it  had  been  formally  accepted  by  the  town  it 
would  necessarily  have  been  devoted  to  some  general  public  use, 
such  as  that  of  a  park  or  pleasure  ground,  or  as  the  site  of  town 
buildings  or  for  some  use  in  which  all  the  people  were  interested. 
It  is  evident,  therefore,  that  those  who  purchased  lots  from  David 
or  James  have  no  peculiar  interest  in  the  alleged  dedication,  and 
that  they  hold  no  rights  of  property  therein  not  common  to  every 
one  else  residing  in  the  town. 

It  is  necessary,  therefore,  in  order  to  make  out  title  in  the  mu- 
nicipality, to  show  an  acceptance  by  it  of  the  proffered  dedication. 
There  is  no  proof  tending  to  show  an  acceptance  prior  to  about  1859 
or  i860.  Long  before  that  time  (in  1855),  David  had  clearly  mani- 
fested his  withdrawal  of  the  proposal  to  dedicate  the  lot  to  the  town. 
He  did  this  by  publishing  the  lithographic  map,  upon  which  this 
square  was  subdivided  into  building  lots.  It  is  true  he  declined  to 
sell  off  these  lots,  but  appellant  shows  by  her  own  witness  that  he 
so  refused  because  he  expected  ultimately  to  dedicate  the  lot  to  the 
use  of  the  county  of  Union,  in  case  the  county  seat  should  be  re- 
moved to  Uniontown.  Upon  the  whole  case,  we  are  of  opinion  that 
there  is  no  sufficient  evidence  of  an  acceptance  by  the  town  of  the 
proffered  dedication  prior  to  1855,  when  the  proposal  was  with- 
drawn. But  if  this  was  a  matter  of  doubt,  we  would  nevertheless 
affirm  the  judgment.  The  petition  does  not  aver  possession  in  the 
town,  and  the  proof  shows  beyond  peradventure  that  appellees  held 
actual  adverse  possession  of  the  lot  when  this  suit  was  instituted. 


John  G.  Wills  v.  W.  S.  Frankun.  185 

The  prayer  is  that  appellees  shall  have  the  title  of  the  town  quieted, 
and  that  appellees  be  compelled  to  convey.  If  the  dedication  was 
c(Hnplete,  a  conveyance  is  unnecessary.  To  maintain  a  suit  in  equity 
to  have  title  to  real  estate  quieted,  it  is  necessary  to  aver  and  to 
prove  that  the  complainant  holds  the  legal  title  to,  and  is  in  the 
actual  possession  of  such  realty.  In  this  case,  the  complainant  in 
effect  admits  it  does  not  hold  the  legal  title.  It  does  not  claim  to  be 
in  possession,  and  by  its  own  witnesses  shows  beyond  all  doubt  that 
the  possession  is  in  the  parties  sued. 
The  judgment  dismissing  the  petition  must  be  affirmed, 

Vance  &  Merritt,  for  appellant. 

D.  H.  Hughes,  A.  /.  James,  for  appellees. 


X   John  G.  Wills  v.  W.  S.  Franklin. 

Will — Rale  of  Construction. 

Where  there  is  a  devise  over  in  the  event  of  the  death  of  the  pre- 
ceding devisee,  it  refers  to  the  event  happening  during  the  life  of  the 
testator. 

APPEAL  FROM  CLARK  CIRCUIT  COURT. 

October  28,  1874. 

Opinion  by  Judge  Pryor: 

The  proper  construction  of  the  clause  of  the  will  in  controversy 
is  that  if  one  of  the  devisees  should  die  in  the  lifetime  of  the  testa- 
tor, his  children,  if  any,  should  take  his  property,  and  if  not,  it 
should  pass  to  the  surviving  devisees.  The  rule  is  that  where  there 
is  a  devise  over  in  the  event  of  the  death  of  the  preceding  devisee, 
it  refers  to  the  event  happening  during  the  life  of  the  testator,  and 
this  rule  must  prevail  here,  as  there  is  no  other  period  to  which  the 
language  of  the  will  refers.  If  the  testator  had  said  in  the  event  of 
the  death  of  the  devisee  without  children,  it  would  have  referred  to 
or  the  contingency  would  depend  on  the  death  of  the  devisee  with- 
out children.  There  is  no  such  language,  however,  in  the  will,  and 
as  some  time  must  be  fixed  in  determining  the  devisee's  interest,  it 
is  plain  that  the  period  of  time  referred  to  at  which  the  event  was 
to  happen  in  order  to  defeat  the  claim  of  the  appellant,  was  his 
death  during  the  life  of  the  devisor. 

The  appellant,  therefore,  had  a  complete  title  to  the  land  ex- 


i86  KENTUCKY  Opinions. 

changed  with  appellee,  so  far  as  it  could  have  been  conferred  upon 
him  by  the  devisor. 

Hughes  V.  Hughes,  12  B.  Mon.  115.  The  judgment  of  the  court 
below  is  reversed  and  cause  remanded  for  further  proceedings  con- 
sistent with  this  opinion. 

/.  Simpson,  for  appellant. 


James  Trimble  v.  Farmers'  Bank  of  Kentucky. 

Attorney's  Fees— Promissory  Notes. 

A  stipulation  in  a  promissory  note  that  if  it  should  become  neces- 
sary to  collect  it  by  legal  proceedings  the  obligors  would  pay  a  reason- 
able attorney's  fee  and  costs  of  collection,  is  not  enforcible. 

APPEAL.  FROM  MONTGOMERY  CIRCUIT  COURT. 

October  29,  1874. 

Opinion  by  Judge  Cofer  : 

The  appellee  sued  the  appellant  and  others,  on  a  promissory  note 
for  $2,151.17,  which  contained  a  stipulation  that  if  it  became  neces- 
sary to  collect  it  by  legal  proceedings,  the  obligors  would  pay  a  rea- 
sonable attorney's  fee  and  cost  of  collection.  This  stipulation  is  set 
out  in  the  petition,  and  it  is  alleged  that  it  had  become  necessary  to 
collect  the  note  by  legal  proceedings,  and  that  a  reasonable  attorney's 
fee  therefor  is  $100. 

The  appellant  having  failed  to  answer,  judgment  was  rendered 
by  default  on  the  13th  day  of  February,  1874,  for  the  amount  of  the 
notes  and  one  hundred  dollars  and  cost.  On  the  i6th  day  of  Febru- 
ary, the  appellant  tendered  an  answer  and  moved  the  court  to  set 
aside  the  judgment,  and  permit  the  answer  to  be  filed,  to  which  ap- 
pellee objected,  and  his  motion  having  been  overruled,  he  excepted 
and  made  the  proffered  answer  a  part  of  the  record  by  bill  of  ex- 
ceptions, and  now  complains  that  the  court  erred  in  refusing  to  set 
aside  the  judgment  and  allow  his  answer  to  be  filed,  and  also,  that 
the  court  erred  in  rendering  judgment  against  him. 

The  answer  tendered  by  appellant  refers  to  and  adopts  an  answer 
tendered  at  the  same  time  by  other  defendants,  and  among  other  de- 
fenses set  up  in  the  answer  thus  referred  to,  is  a  denial  that  one 
hundred  dollars  is  a  reasonable  attorney's  fee  for  the  collection  of 
the  note,  and  also  an  averment  that  the  stipulation  to  pay  an  at- 


Elizabeth  Mark,  et  al.,  z/.  William  Little,  et  al.       187 

torney's  fee  in  case  suit  had  to  be  brought  on  it,  "is  invalid,  illegal 
and  inoperative." 

We  have  heretofore  decided  that  if  a  party  sought  to  be  charged 
with  the  payment  of  an  attorney's  fee  on  a  contract  like  this,  and  ap- 
pears, and  resists  a  judgment,  no  judgment  can  be  rendered  against 
him  on  account  of  such  stipulation.  The  appellant  did  not  object 
in  this  case  before  judgment  was  rendered,  but  he  did,  by  adopting 
the  answer  of  his  codefendants,  in  which  the  legality  of  that  part 
of  the  demand  was  directly  called  in  question,  indicate  unmistakably 
that  he  did  not  consent  to  that  part  of  the  judgment;  and  as  the 
court  still  had  power  to  set  aside  or  modify  the  judgment,  his  motion 
should  have  been  sustained  on  that  ground,  if  on  no  other. 

None  of  the  answers  tendered  appear  to  have  been  sworn  to,  and 
they  were  properly  rejected  for  that  reason,  if  for  no  other.  But 
as  the  judgment  must  be  reversed  for  the  error  already  indicated, 
the  appellant  should  be  allowed  to  make  any  legal  or  equitable  de- 
fense he  may  have. 

Wherefore  the  judgment  against  the  appellant  is  ret/ersed  and  the 
cause  is  remanded  for  further  proceedings  consistent  herewith. 

Turner  &  Gorrison,  for  appellant. 
Apperson  &  Reid,  for  appellee. 


Elizabeth  Mark^  et  al.^  v.  William  Little,  et  al. 

of  Process  Upon — Description  of  Real  Estate — ^Judg- 


ment. 

No  Judgment  can  be  legaUy  rendered  against  infants  in  a  proceed- 
ing to  sell  their  lands  where  no  guardian  ad  litem  is  appointed  to 
defend  them. 

Judgment. 

A  Judgment  for  the  sale  of  land  should  set  forth  an  accurate  de- 
scription of  the  land  to  be  sold  so  that  it  may  be  identified  by  refer- 
ence to  the  Judgment. 

APPEAL  FROM  BATH  CIRCUIT  COURT. 

October  29,  1874. 

Opinion  by  Judge  Cofer  : 

No  guardian  ad  litem  was  appointed  to  defend  for  the  infant  de- 
fendant on  the  cross-petition  of  the  administrator  against  them  and 
the  creditors  of  the  intestate,  R.  W.  Mark,  and  no  judgment  could, 
for  that  reason,  be  legally  rendered  on  the  cross-petition  to  sell  the 


i88  Kentucky  Opinions. 

land.  As  the  judgment  was  to  sell  the  whole  tract  and  for  more  than 
the  debt  due  to  the  plain tiflF,  Little,  the  judgment  directing  a  sale 
was  erroneous  and  pre  judical  to  the  rights  of  the  infant  appellants, 
who  could  not  be  thus  divested  of  title  without  defense  by  a  guar- 
dian.   Sec.  55,  Civil  Code. 

The  only  description  of  the  land  sold  is  as  follows :  "A  tract  of 
land  lying  and  being  in  the  county  of  Bath,  on  the  waters  of  Flat 
Creek,  which  was  sold  and  conveyed  by  the  obligee,  Anna  E.  Laugh- 
lin,  to  the  said  R.  W.  Mark  by  deed  *  *  *  now  of  record  in  the 
Bath  County  Court  clerk's  office,  a  copy  of  which  is  herewith  filed 
as  part  hereof,  and  is  here  referred  to  for  a  more  full  and  complete 
description  of  the  same.  *  *  *  That  there  are  in  said  tract  of 
land  71  acres,  i  rod  and  28  poles."  Although  the  deed  is  cc^ied 
into  the  record  by  the  clerk,  there  is  nothing  to  show  that  it  was 
filed  with  the  petition,  or  in  the  record,  but  assuming  that  it  was  on 
file  when  the  judgment  was  rendered,  we  think  the  better  and  sater 
practice  is  to  set  forth  in  tlie  petition  and  in  the  judgment,  and  cer- 
tainly in  the  latter,  an  accurate  description  of  the  land  to  be  sold,  so 
that  it  may  be  identified  by  reference  to  the  judgment,  which  is  the 
only  paper  the  commissioner  should  have  to  look  to  in  order  to  de- 
termine what  land  he  is  authorized  to  sell.  The  practice  of  selling 
lands  by  loose  and  indefinite  description  is  calculated  to  produce 
confusion  and  uncertainty  in  the  boundaries  of  land,  and  to  increase 
litigation  and  render  land  title  insecure.  It  is  true  that  it  is  not 
probable  that  such  evils  would  result  in  this  case,  but  we  can  not,  on 
that  account  make  this  an  exception  to  a  necessary  general  rule. 

Whether  this  suit  was  prematurely  brought  or  not  is  a  question 
not  necessary  to  be  decided,  for  as  no  objection  was  taken  in  the 
circuit  court  upon  that  ground,  it  has  been  waived;  and  if  this  be 
not  the  case,  still,  as  the  administrator  had  a  right  to  sue  for  a  set- 
tlement at  any  time,  and  as  he  has  done  so  by  his  cross-petition,  the 
court  may  proceed  to  sell  upon  taking  the  necessary  preliminary 
steps  to  authorize  a  judgment  against  the  infants  for  a  sale  of  the 
land. 

Wherefore  the  judgment  is  reversed,  and  the  cause  is  remanded 
with  directions  to  set  aside  the  judgment  ordering  a  sale  of  the  land 
and  the  order  confirming  the  sale,  and  to  set  aside  the  sale  and  cancel 
the  sale  bonds,  and  for  further  proceedings  not  inconsistent  with  this 
opinion. 

Nesbitt  &  Gudgell,  for  appellants. 
Lacy  &  Hunt,  for  appellees. 


EUZABETH  WiNGATE  V.  ViRGIL  GaRRISON,  ET  AL.  189 

EUZABETH  WiNGATE  V.  ViRGIL  GaRRISON,  ET  AL. 

Elizabeth  Wingate  v,  George  Kale,  et  al. 

Real  EsUte— Convesrance  to  Defraud  Creditors— Action  to  Set  Aside 
Conveyance. 

One  who  Is  insolvent  may  not  convey  his  property  as  a  gift  to  a 
member  of  his  family  and  thus  defraud  his  creditors;  such  a  convey- 
ance will  be  set  aside. 

Action. 

A  creditor  whose  claim  has  not  been  reduced  to  Judgment,  may  sue 
on  the  same,  and  also  to  set  aside  a  fraudulent  conveyance,  in  one 
action. 


APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

October  30,  1874. 

Opinion  by  Judge  Lindsay  : 

On  the  30th  of  January,  1865,  Dr.  J.  W.  Knight  conveyed  to  his 
daughter,  Mrs.  Wingate,  who  was  residing  with  him,  his  house  and 
lot  in  the  city  of  Louisville,  together  with  all  his  household  and 
kitchen  furniture. 

The  conveyance!  left  the*  grantor  without  any  visible  property 
whatever.  He  was,  at  the  time  of  its  executicMi,  practically  insolvent. 
He  had  no  other  estate,  and  was  indebted  to  the  devisees  of  Martha 
Garrison,  deceased,  and  of  Philip  Meyer,  deceased,  in  large  sums  of 
money.  He  had  been  for  many  years  a  practicing  physician,  but  by 
reason  of  his  age,  and  of  his  habits  of  drinking  to  excess,  his  prac- 
tice had  ceased  to  be  remunerative.  Mrs.  Wingate,  the  grantee,  had 
resided  with  her  father  for  about  twenty  years ;  except  her  daughter, 
now  Mrs.  Harris,  the  grantee  and  the  grantor  constituted  the  en- 
tire household.  There  was  no  marked  or  perceptible  change  of  the 
mode  of  housekeeping  after  the  conveyance.  Tlie  grantor  continued 
to  reside  in  the  house  until  his  death  in  1871.  The  circumstances 
proven  all  tend  to  show  that  Mrs.  Wingate  had  no  means  of  any 
kind  in  1865,  when  she  professes  to  have  paid  for  this  house  and  lot 
and  furniture  $12,000  in  cash.  As  to  Garrison'si  devisees,  they  all 
being  infants,  she  was  an  incompetent  witness ;  with  her  testimony 
excluded,  there  is  practically  no  proof  that  she  paid  anything  for  the 
property. 

The  evidence  produced  by  appellees  as  to  the  conveyance  by  Dr. 
Knight  of  all  his  visible  estate,  as  to  hisi  insolvency,  and  as  to  Mrs. 


190  Kentucky  Opinions. 

Wingate's  want  of  ability  to  pay,  connected  with  the  relationship  of 
the  parties,  and  the  further  facts  that  the  grantor  continued  to  reside 
in  the  house,  and  that  there  was  no  change  in  the  manner  of  con- 
ducting the  household  matters,  was  sufficient  to  make  out  a  prima 
facie  case  of  a  voluntary  alienation  by  the  grantor  in  fraud  of  ap- 
pellees' rights.  Mrs.  Wingate  might  have  contented  herself  with 
the  denial  of  the  material  allegations  of  the  two  petitions,  but  she 
did  not  see  proper  to  do  so.  She  entered  into  an  elaborate  expla- 
nation of  the  circumstances,  under  which  the  conveyance  was  made, 
and  of  the  necessity  of  some  provision  being  made  for  the  pers(xial 
comforts  of  the  grantor,  and  of  the  necessity  of  scmie  one  taking 
charge  of  the  domestic  affairs  of  the  household.  This  explanation 
is  utterly  inconsistent  with  the  idea  that  the  ccMiveyance  was  merely 
the  consummation  of  actual  business  transactions. 

Mrs.  Wingate  in  her  answer  states  that  she  had  from  1846  up 
to  1865  advanced  to  her  father  large  sums  of  money.  She  does  not 
state  except  by  implication  that  the  advances  were  made  upon  the 
promise  of  her  father  to  repay  them.  Nor  is  there  any  specific  aver- 
ment of  such  a  state  of  facts,  as  show,  necessarily,  that  she  intended 
to  require,  or  that  her  father  expected  to  repay  to  her  the  money  ad- 
vanced. Her  testimony  does  not  present  a  much  stronger  case  of 
indebtedness  than  her  pleadings,  except  that  she  says  she  held  a 
note  for  $3,000  advanced  in  1846,  and  $550  advanced  in  1854.  She 
cldms  that  she  kept  a  memorandum  of  the  other  indebtedness  by 
entries  in  a  blank  book.  Giving  to  her  statements  the  most  favor- 
able construction,  it  seems  that  the  $12,000  cash  payment  on  the 
property  was  made  up  of  a  $3,000  note  that  had  been  due  for  about 
nineteen  years,  of  a  $550  note  that  had  been  due  over  ten  years,  and 
of  various  other  items  for  house  rent  collected,  and  for  property 
invested  by  the  grantor,  which  were  evidenced  only  by  memoranda. 

On  the  30th  day  of  January,  1865,  all  these  claims  were  barred 
by  the  statute  of  limitation  except  the  note  of  $550.  It  is  true  the 
grantor  was  morally  bound  to  pay  them,  notwithstanding  the  great 
lapse  of  time,  and  that  other  creditors  can  not  complain  that  he 
recognized  this  moral  obligation.  But  when  we  find  him  regarding 
his  moral  duty  in  regard  to  debts  due  to  his  daughter,  and  thereby 
securing  to  her  and  to  himself  a  home  during  the  remainder  of  his 
life,  and  making  no  provisions  whatever  for  the  payment  of  infant 
cestui  que  trust,  whose  money  he  had  spent,  it  is  difficult  to  conclude 
that  the  conveyance  was  made  and  executed  in  the  discharge  of  a 
high  moral  obligation,  the  conviction  is  almost  irresistible  that  these 


EUZABETH  WiNGATE  V.  ViRGIL  GARRISON,  ET  AL.  I9I 

sole  claims  were  resurrected  from  the  past,  to  give  color  to  a  trans- 
action that  the  parties  hoped  would  enable  the  daughter  to  continue 
in  a  position  to  minister  to  the  comforts  and  growing  wants  in  the 
old  age,  and  rapidly  coming  helplessness  of  the  father. 

We  do  not  doubt  that  Mrs.  Wingate  received  some  amount  of 
money  from  the  estate  of  her  deceased  husband,  but  it  is  almost  im- 
possible that  it  should  have  been  so  managed  and  controlled  as  to 
clothe  her  and  her  daughter,  and  also  to  accumulate  to  the  amount 
claimed  to  have  been  due  her  at  the  time  she  received  the  convey- 
ance of  her  father's  house  and  lot.  The  more  natural  conclusion  is, 
and  the  testimony,  all  considered  together  tends  to  show,  that  the 
money  received  by  her  was  gradually  expended  for  the  use  and 
purposes  of  the  household  of  which  she  was  a  member.  Mrs.  Win- 
gate  had  no  idea  that  her  father  would  ever  be  reduced  to  poverty. 
She  felt  sectue  of  a  home  for  herself  and  daughter,  and  therefore 
expended,  or  permitted  others  to  expend  her  money  for  the  common 
comforts  of  the  family  without  expectation  or  desire  of  repayment. 
Under  such  a  state  of  case,  the  conveyance  can  not  be.  upheld  to 
the  prejudice  of  bona  Me  creditors. 

The  actions  were  maintainable  without  a  judgment  and  return  of 
no  property  found  against  the  fraudulent  grantor.  He  died  before 
judgment.  His  estate  is  insolvent^  and  there  has  been  no  administra- 
tion upon  it.  Appellees  had  the  right,  under  the  circumstances,  to 
establish  their  debts  against  the  heirs  at  law  of  Dr.  Knight,  and  in 
the  action  instituted  for  that  purpose  to  attack  the  conveyance  to 
Mrs.  Wingate.  Such  practice  has  been  allowed  even  whilst  the 
grantor  was  still  alive,  and  as  it  is  admitted  that  Dr.  Knight's  estate 
it  utterly  and  hopelessly  insolvent,  there  was  no  reason  whatever 
for  requiring  appellees  to  engage  in  expensive  and  useless  litigation 
with  its  representatives,  merely  to  prepare  for  the  ultimate  attack 
upon  the  conveyance  to  Mrs.  Wingate.  There  can  be  no  serious  ques- 
tion that  the  devisees  of  Garrison  and  of  Meyer  are  entitled  to  the 
amount  allowed  them  respectively.  Meyer's  devisees  have  no  claim 
to  the  interest  devised  to  Mrs.  Meyers,  afterwards  Mrs.  McMahon. 
If  Dr.  Knight  failed  to  pay  such  interest  over  to  her,  the  right  of 
action  therefore  is  in  her  personal  representative,  and  not  in  the 
other  devisees. 

The  two  judgments  are  afHrmed,  On  the  cross-appeal  the  judg- 
ment of  Meyers'  heir  and  devisees  is  also  affirmed, 

m 

Bullitt  &  Bullitt,  Harris,  C.  J.  Clark,  for  appellant. 
Lee  &  Rodman,  for  appellees. 


192  Kentucky  Opinions. 

C.  K.  Russell  v,  James  Lynn. 


Practice— Waiving  Objections — Evidence. 

Where  no  objection  was  made  and  no  exception  taken  to  the  giving 
of  instructions,  no  question  as  to  them  is  presented  on  appeal. 

Evidence. 

In  actions  ex  contractu  when  the  evidence  clearly  preponderates 
against  the  verdict,  a  new  trial  should  be  granted. 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

October  30»  1874. 

Opinion  by  Judge  Peters  : 

To  the  instruction  given  to  the  jury  no  objection  was  made  and  no 
exception  taken  by  appellant,  and  this  court  can  not  oa  that  account 
review  the  action  of  the  court  below,  giving  said  instruction,  even 
if  it  were  erroneous,  as  the  error  was  waived  by  failing  to  except 
to  it  at  the  time.  No  citation  of  authority  is  necessary  on  this  point. 
Nor  was  there  any  exception  taken  to  the  opinion  of  the  court  in 
admitting  the  evidence  of  the  Rusts  to  go  to  the  jury  and  that  ques- 
tion was  waived. 

But  the  verdict  of  the  jury  is  against  the  decided  weight  of  the 
evidence. 

In  actions  ex  contractu,  when  the  evidence  preponderates  so  de- 
cisively against  the  verdict  as  it  does  in  this  case,  a  new  trial  should 
be  awarded.  Kirtley  v,  Kirtley,  i  J.  J.  Marsh.  96. 

Wherefore  the  judgment  is  reversed  and  the  cause  is  remanded 
for  a  new  trial  and  further  proceedings  consistent  herewith. 

R.  D.  Handy,  for  appellant. 


Henry  Rudwig  v,  Jacob  Crum. 

Judicial  Sale  of  Real  Estate— Mistake  in  Descriptibn— Power  of  Court  to 
Correct— Judgment 

Where  the  court  has  ordered  the  sale  of  various  tracts  of  real  es- 
tate, designated  by  numbers,  some  of  which  were  improved  and  valu- 
able and  others  unimproved  and  less  valuable,  and  by  mistake  in  the 
sale  and  purchase  thereof  one  buys  what  is  supposed  by  the  parties 
to  be  the  valuable  parcels  for  a  high  price  and  another  buys  at  a  low 
price  what  is  supposed  to  be  the  unimproved  parcel  of  land,  while  in 
truth  by  mistake  the  descriptions  were  erroneous,  and  the  purchasers 

did  not  receive  what  they  bought,  such  error  is  one  of  fact  and  may 
be  corrected  upon  the  supplemental  petition  of  a  purchaser  filed  in 

said  cause. 


Henry  Rudwig  v.  Jacob  Crum.  193 

Power  o£  the  Chancellor. 

The  chancellor  on  a  proper  issue  made  for  the  purpose  upon  facts 
established,  may  correct  a  decree  of  a  former  term  wrongfully  entered 
through  mistake  or  fraud. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT 

October  31,  1874. 

Opinion  by  Judge  Peters  : 

Two  appeals  are  presented  to  this  court  from  the  Louisville 
chancery  court,  on  two  transcripts  of  records,  and  are  both  docketed. 
Rudwig  V.  Crum,  No.  i.    Rudwig  v.  Crum,  No.  2. 

No.  I  is  a  suit  brought  by  Henry  Crum  against  Fergerson, 
Dawson  and  Rudwig,  and  in  his  petition  the  plaintiff  alleges  that 
the  defendants,  Fergerson  and  Dawson,  sold  and  conveyed  to  Rud- 
wig a  tract  of  land  in  Jefferson  county  for  $18,500,  all  of  which  was 
paid  down  except  $1,150,  for  which  Rudwig  executed  his  two  prom- 
issory notes  for  $575  each,  one  payable  in  one  and  the  other  in  two 
years  thereafter,  with  interest  from  date ;  that  in  the  conveyance  the 
grantors  reserved  a  lien  on  the  land  to  secure  the  payment  of  said 
notes,  which  notes  they  had  assigned  to  him ;  that  one  of  them  was 
past  due ;  and  he  prayed  for  a  foreclosure  of  the  lien  to  which  he  was 
entitled  by  reason  of  the  assignment,  and  for  a  sale  of  land  to  pay  his 
debt.  One  Bryant  was  subsequently  made  a  defendant,  and  he 
filed  an  anwer  which  he  tnade  a  cross-petition,  and  alleges  that  he 
sold  and  conveyed  the  same  land  to  Fergerson  and  Dawson;  that 
they  then  owed  him  $5,000  of  the  purchase  money,  evidenced  by  their 
note,  and  to  secure  which  he  had  in  the  deed  made  to  them  retained 
a  lien ;  that  his  note  was  past  due ;  and  he  prayed  for  a  foreclosure 
of  his  lien  and  for  a  sale  of  land  enough  to  pay  his  debt. 

Rudwig  answered  the  original  and  the  cross-petition,  not  contro- 
verting Bryant's  lien;  but  he  charges  that  he  had  not  purchased 
from  Fergerson  and  Dawson  all  the  land  they  purchased  from  Bry- 
ant; that  they  yet  had  171 J4  acres  of  the  land  they  bought  of  Bry- 
ant. He  asked  that  the  171 J4  acres  should  be  first  sold,  and  that 
only  so  much  of  his  should  be  sold  as  would  pay  the  residue  of  the 
debt  to  Bryant,  if  any  part  should  remain  unsatisfied ;  and  he  made 
his  answer  a  cross-petition  against  his  vendors  for  that  purpose. 

In  his  answer  to  Crum's  petition,  after  admitting  the  lien  retained 
in  the  deed  to  him  for  the  security  of  the  debt  he  owed,  and  the 
assignment  of  the  notes  to  Crimi,  he  avers  that  Fergerson  and 
Dawson  promised  and  understood  when  he  purchased  of  them,  that 

13 


194  Kentucky  Opinions. 

they  would  remove  Bryant's  lien,  and  claims  that  he  will  be  entitled 
to  a  credit  on  his  debt  for  so  much  of  his  land  as  may  be  sold  to 
pay  Bryant's  debt,  and  by  appropriate  pleadings  for  the  relief. 

Bryant  conveyed  the  land  to  Fergerson  and  Dawson  by  distinct 
parcels,  describing  such  lots  by  metes,  bounds  and  numbers  from 
I  to  6,  inclusive,  all  bounds  embraced  in  one  deed,  reciting  that  lot 
No.  I  contains  lOO  acres,  No.  2,  seventeen  and  one-half  acres,  No.  3, 
50  acres.  No.  4,  240  acres,  No.  5,  50  acres,  and  No.  6  one  acre. 

The  case  was  first  heard  on  the  cross-petition  of  Bryant;  the 
court  adjudged  to  Bryant  his  debt,  and  that  he  had  a  lien,  and  after 
directing  the  terms  and  place  of  sale,  the  court  directs  the  marshal 
to  sell  the  property,  by  lots  as  they  are  now  divided,  beginning  with 
lots  on  tracts  No.  i,  then  No.  2,  then  No.  3,  then  No.  6,  then  No.  5, 
then  No.  4,  unless  the  first  lots  sold  bring  enough  to  pay  off  and  to 
satisfy  said  debt,  interest  and  cost,  and  the  case  was  remanded  as 
to  the  petition  and  cross-petition  of  Rudwig. 

On  the  28th  of  June,  1872,  the  marshal  made  his  report  of  the  sale 
to  the  court,  in  which  he  reported  Henry  Rudwig  the  purchaser  of 
lot  No.  I,  at  $5  per  acre,  lot  No.  3,  at  $4  per  acre,  and  lot  No.  6,  at 
$5  per  acre,  and  Jacob  Crum  the  purchaser  of  lot  No.  4,  at  $17.50 
per  acre,  and  lot  No.  5,  at  $15  per  acre;  that  Rudwig  has  complied 
with  the  terms  of  the  sale  by  executing  three  notes  for  $438.50  each, 
•  with  Isenburg  as  his  security ;  and  that  Jacob  Crum  has  executed 
three  bonds  for  $147.50,  each  with  George  Crum  as  his  security. 
Crum's  notes  are  less  than  his  purchase,  but  are  for  enough,  when 
added  to  Rudwig's,  to  satisfy  the  decree  under  which  the  land  was 
sold.  By  direction  of  the  parties  and  their  written  consent  herewith 
filed,  he  took  the  bonds  on  that  day. 

The  written  consent  of  all  the  parties  is  also  filed  in  the  case  for 
a  confirmation  of  the  marshal's  report  of  sale,  without  lying  a  week 
for  exception.  And  on  the  5th  day  of  July,  1872,  said  report  of 
sale  was  approved  and  confirmed  by  the  court,  and  the  commissioner 
was  directed  to  make  a  deed  to  the  purchaser. 

The  sale  was  made  on  the  27th  of  May,  1872.  On  the  7th  of 
March,  1873,  Jacob  Crum*  appeared  in  court  and  declined  to  accept 
the  deed  to  him  prepared  by  the  commissioner,  and  the  court  di- 
rected the  commissioner  to  withhold  the  deed  till  the  further  order 
of  the  court.  And  on  the  14th  of  the  same  month,  Henry  Rudwig 
moved  the  court  to  set  aside  the  last  named  order. 

In  July,  1873,  the  court  below  directed  the  commissioner  to  make 
deeds  to  Jacob  Crum  and  Henry  Rudwig,  as  ordered  by  decree  in 


Henry  Rudwig  v.  Jacob  Crum.  195 

case  No.  26,193  in  the  same  court.  In  a  few  days  thereafter  Rudwig 
nx)ved  the  court  to  set  aside  the  last  named  order  until  after  the 
trial  of  the  case  in  this  court  of  Jacob  Crum  and  Henry  Rudwig  on 
appeal.  That  may  be  an  error  in  the  style  of  case,  but  the  court 
overruled  his  motion  in  October,  1873.  This  order  appears  to  have 
been  made  on  the  motion  of  plaintiff  by  attorney,  ordering  that  a 
writ  of  possession  be  awarded  him  for  lots  i,  2,  3  and  6,  to  which 
Rudwig  excepted. 

Upon  a  rule  against  Rudwig  and  his  security  to  show  cause  why 
they  should  not  pay  the  money  into  court  due  on  their  bonds,  Rud- 
wig responded  at  great  length,  but  his  response  being  adjudged,  and 
the  rule  made  absolute,  he  excepted  and  appealed  to  this  court ;  and 
now  he  complains  that  the  court  below  erred,  first,  in  ordering  the 
commissioner  to  make  a  deed  to  Jacob  Crum  and  to  Henry  Rudwig 
as  in  case  No.  26,193;  second;  in  awarding  to  the  plaintiff  in  this 
suit  a  writ  of  possession  for  lots  i,  2,  3  and  6;  and  third,  in  adjudg- 
ing his  response  to  the  rule  against  him  and  his  security  insuffi- 
cient, and  making  the  rule  absolute. 

These  questions  being  presented  in  appeal  No.  i,  and  being  in- 
volved inseparably  in  the  decision  of  the  question  arising  on  the 
appeal  between  the  same  parties,  we  will  proceed  now  to  consider 
No.  2  in  connection  with  the  first,  as  the  cases  were  heard  together. 

On  the  7th  of  March,  1873,  Jacob  Crum  filed  a  petition  in  the 
Louisville  chancery  court  against  appellant,  in  which,  after  referring 
to  the  suit  of  George  W,  Crum  v.  Fergerson  and  Dawson,  and  Bry- 
ant's judgment  on  the  cross-petition  in  the  case,  and  the  sale  under 
that  judgment,  he  alleges  that  Fergerson  and  Dawson  conveyed  to 
Rudwig  the  several  tracts  of  land  marked  in  red  lines  on  the  plat 
filed  with  his  petition  on  No.  i,  2,  5,  and  6,  supposed  to  ccxitain  294 
acres,  3  roods  and  25  poles;  that  Bryant,  their  vendor,  in  addition 
to  those  parcels,  conveyed  to  them  two  other  parcels  of  land  desig- 
nated on  said  plat  as  No.  3  and  4 ;  that  Bryant's  lien  was  exclusive 
as  to  the  last  named  lots ;  that  the  court  below  ordered  the  sale  of 
those  two  lots  first,  and  if  they  did  not  sell  for  enough  to  satisfy  his 
debt,  then  so  much  of  the  other  lots  should  be  sold  as  would  be  re- 
quired to  pay  the  residue  of  Bryant's  debt;  that  the  decree  was 
drawn  by  the  attorney  of  Bryant,  who  believed  that  lots  No.  "4  and 
5"  represented  the  land  that  Rudwig  purchased  of  Fergerson  and 
Dawson,  but  he  was  mistaken,  as  the  lots  on  which  J.  W.  Crum  had 
no  lien  were  represented  by  No.  "3  and  4,"  and  by  the  mistake  of 
said  attorney  these  lots  were  named  last  in  the  order  of  sale,  instead 


196  Kentucky  Opinions. 

of  first ;  that  the  mistake  occurred  by  pursuing  the  order  in  which 
the  several  lots  are  mentioned  in  the  deed  of  Bryant  to  Fergerson 
and  Dawson;  that  it  was  the  intent  and  purpose  of  all  the  parties 
interested,  Rudwig  included,  to  sell  first  the  parcels  of  ground  not 
embraced  in  the  deed  of  Fergerson  and  Dawson  to  him;  that  the 
marshal  of  the  Louisville  chancery  court  sold  the  several  parcels 
of  land  in  the  order  in  which  they  are  named  in  the  decree ;  that  by 
Bryant  being  present,  and  understanding  as  he  did  that  lots  Nos. 
I,  2,  3  and  6  represented  the  land  upon  which  he  held  the  exclusive 
lien,  he  bid  them  in  at  $5  and  $4  per  acre,  and  Rudwig  having  the 
same  belief  and  understanding  that  lots  No.  4  and  5  represented 
the  land  he  had  purchased  of  Fergerscxi  and  Dawson,  bid  them  in 
at  $15  and  $17.50  per  acre;  that  Rudwig,  at  the  time  of  the  sale, 
declared  that  it  was  his  purpose  to  buy  in  the  same  land  he  had 
previously  bought  of  Fergerson  and  Dawson ;  that  the  land  so  pur- 
chased was  improved  by  a  dwelling  house,  orchard  and  vinyard, 
which  made  it  valuable. 

But  by  the  misunderstanding  of  all  the  parties,  the  improved 
land,  in  fact,  represented  by  Nos.  i,  2  and  6,  Rudwig  permitted  to 
be  sold  for  from  $4  to  $5  and  bid  for  Nos.  4  and  5  at  $17.50  per 
acre,  when  No.  4  was  unimproved,  hilly  and  very  inferior  land. 
Bryant  transferred  his  bid  to  Rudwig,  whereby  he  became  the 
purchaser  of  all  the  land.  After  the  expiration  of  more  than  two 
weeks,  Rudwig,  finding  that  he  was  unable  to  give  the  requisite 
bonds  for  the  purchase  money,  proposed  to  appellee  to  transfer  his 
bids  on  the  land  he  had  purchased  from  Fergerson  and  Dawson, 
which  land  he  represented  at  the  time  to  be  designated  by  lots  Nos. 
4  and  5.  He,  relying  on  the  representation  of  Rudwig,  and  believ- 
ing that  said  numbers  embraced  the  improved  lands  with  the  houses, 
orchards  and  vinyard,  from  an  examination  he  and  George  W. 
Crum  made  of  them  with  Rudwig,  during  which  he,  Rudwig,  showed 
them  lot  No.  i,  on  which  said  improvements  are  located,  and  rep- 
resented to  them  that  it  was  lot  No.  4,  also  showing  them  the  boun- 
dary of  lot  No.  4,  he  induced  the  appellee  to  take  his  bids,  which 
he  consented  to  do,  laboring  under  a  mistake  as  to  the  lots  repre- 
sented by  said  numbers,  produced  by  the  false  and  fraudulent  state- 
ment of  appellant,  made  to  him  in  relation  thereto,  and  executed  his 

three  bonds  with  George  W.  Crum  as  his  security  for  $ each, 

for  the  price  of  said  lots  bid  by  Rudwig.  He  has  now  paid  off  and 
taken  up  the  one  which  first  matured ;  but  he  had  not  discovered  the 
mistake  till  within  one  week  from  the  time  he  exhibited  his  petition. 


Henry  Rudwig  v.  Jacob  Crum.  197 

He  prayed  that  the  mistake  be  corrected  for  a  conveyance  to  him 
of  lots  Nos.  I,  2,  5  and  6,  and  if  that  could  not  be  done  then  he 
prayed  the  sale  be  set  aside  and  the  lots  ordered  to  be  resold,  and 
for  all  proper  relief. 

In  an  argumentative  answer,  containing  about  twenty  pages  (man- 
uscript), Rudwig  denies  that  Bryant  had  an  exclusive  lien  on  lots 
Nos.  3  and  4,  and  denies  that  George  W.  Crum  had  any  lien  on 
lots  Nos.  I,  2,  s  and  6  to  secure  the  payment  of  the  two  notes  exe- 
cuted by  said  Rudwig  to  Fergerson  and  Dawson,  and  by  them  as^ 
signed  to  said  Crum,  or  that  he  ever  had  such  lien,  or  that  the  court 
below  ordered  lots  on  which  Bryant  had  an  exclusive  lien  to  be  first 
sold  to  pay  his  debt. 

He  denies  that  when  Bryant's  attorney  drew  the  decree  for  the 
sale,  that  he  understood  or  believed  that  lots  Nos.  4  and  5  repre- 
sented the  property  Rudwig  purchased  of  Ferger?on  and  Dawson, 
and  there,  by  mistake,  inserted  lot  No.  4  last  in  the  order  for  the 
sale,  or  that  the  court  had  any  intention  of  ordering  a  sale  of  the 
property  in  a  manner  different  from  that  expressed  in  the  judgment. 
He  denies  that  it  was  the  expressed  intention  of  the  parties  inter- 
ested to  first  sell  the  lots  on  which  Bryant  had  an  exclusive  lien, 
and  that  a  mistake  was  committed  in  writing  out  the  judgment  by 
describing  the  lots  in  the  decree  as  they  are  numbered  in  the  deed 
of  Bryant  to  Fergerson  and  Dawson.  And  he  then  avers  that  Bry- 
ant held  a  lien  on  all  the  lots ;  and  the  court  adjudged  that  all  should 
be  sold  to  pay  his  debt,  if  necessary,  and  orders  them  sold  as  set 
forth  in  the  judgment,  without  regard  to  any  intention  of  the  parties ; 
that  the  marshal  was  ordered  to  sell  said  lots  beginning  with  i, 
then  2,  then  3,  then  6,  then  4,  and  5,  successively,  and  to  sell  all 
unless  enough  was  realized  to  pay  said  lien  before  all  were  sold; 
that  the  manifest  intention  of  the  court  was  to  sell  the  most  valuable 
lots  first,  that  enough  might  be  realized  to  satisfy  Bryant's  lien 
without  regard  to  the  numbers,  and  to  avoid  the  sale  of  the  whcde 
of  the  land ;  that  the  marshal  sold  the  lots  in  the  order  in  which  they 
are  named  in  Bryant's  deed. 

He  admits  that  Bryant  was  the  purchaser  at  the  marshal's  sale 
of  lots  Nos.  I,  2,  3,  for  $4  and  $5  per  acre,  and  that  he  purchased 
k>ts  Nos.  4  and  5  at  $5  and  $17.50  (as  is  in  the  transcript  before 
us) ,  which  last  named  lots  he  had  no  interest  in ;  but  he  denies  that 
Bryant,  when  he  purchased,  understood  or  believed  that  the  lots  bid 
in  by  him  were  those  on  which  he  had  an  exclusive  lien,  and  denies 
that  he  then  understood  that  lots  4  and  5  were  the  same  he  had  pur- 


198  Kentucky  Opinions. 

cliased  from  Fergerson  and  Dawson.  He  admits  that  it  was  his 
express  intention  to  buy  in  the  land  he  had  previously  bought  of 
Fergerson  and  Dawson,  on  which  were  situated  the  dwelling  house, 
orchard  and  vinyard,  and  for  that  reason  he  agreed  to  assume  for 
Bryant;  and  that  Bryant  transferred  his  bids  for  lots  i,  2  and  6  to 
him,  and  he  thereby  did  become  the  purchaser  of  said  lots.  He  avers 
that  the  lot  No.  4  was  and  is  worth  the  full  price  he  bid  for  it,  and 
denies  that  it  was  unimproved,  hilly  and  inferior  land.  He  also  de- 
nies that  he  proposed  to  appellee  to  transfer  his  bids  on  the  lots  he 
purchased  from  Fergerson  and  Dawson,  and  represented  to  him  at 
the  time  that  lots  4  and  5  represented  the  land  purchased  by  him 
from  the  last  named  individuals,  and  that  he  was  induced  to  take 
them  because  he  relied  on  the  truth  of  those  statements.  He  charges 
that  Jacob  Crum  was  in  fact  the  owner  of  the  notes  executed  to 
Fergerson  and  Dawson  by  appellant  although  they  were  assigned 
to  George  W.  Crum,  and  that  he  was  induced  to  assume  his  bids, 
and  become  the  purchaser  of  lots  Nos.  4  and  5  as  a  means  of  saving 
his  debts,  because  no  lien,  as  he  knew,  existed  on  said  lots,  for  the 
payment  of  the  notes.  He  also  knew  that  Fergerson  and  Dawson 
were  insolvent ;  and  he  files,  as  part  of  his  answer,  the  written  agree- 
ment made  between  himself  and  Joe  and  Jacob  Crum,  marked  "B," 
as  evidencing  the  truth  of  his  statement. 

He  says  in  his  answer  that  he  had  no  more  knowledge  of  the 
situaticMi  of  the  Several  lots  of  land  as  numbered  in  case  No.  24,937, 
and  set  out  in  the  survey  filed  in  this  case,  than  appellee;  that  a 
survey  in  this  case  was  necessary,  and  it  was  made  to  ascertain 
which  numbers  belong  to  each  plat,  and  he  is  yet  in  doubt  which 
survey  is  correct,  the  plat  theretofore  filed,  or  exhibit  "A"  filed  with 
his  answer;  that  when  he  transferred  his  bids  to  appellee  all  the 
land  had  been  sold,  and  he  was  the  purchaser  of  the  lots  No.  4  and 
5  only,  and  could  not  transfer  more  than  he  had  purchased.  The 
sale  of  the  land  by  the  marshal  was  made  on  the  27th  of  May,  1872, 
and  on  the  25th  of  June,  1872,  he  made. the  agreement  with  the 
Crums,  evidenced  by  "Exhibit  B,"  by  which  Jacob  assumes  his  bids 
for  lots  Nos.  3  and  4,  with  the  right  reserved  to  himself  to  redeem 
them  if  he  refunded  the  money  to  said  Crum  by  the  time  the  last 
instalment  was  due;  that  at  the  time  of  answering  only  the  first 
instalment  was  due  and  paid,  and  his  right  to  redeem  still  existed ; 
that  subsequent  to  this  agreement  with  Crum,  he  contracted  with 
Bryant  to  take  lots  i,  2,  3  and  6;  that  on  the  28th  of  June,  1872, 
the  marshal,  by  agreement  of  all  the  parties  interested,  made  his 


Henry  Rudwig  v,  Jacob  Crum.  199 

rqx>rt  of  the  sale  to  the  court,  reporting  Jacob  Crum  as  the  pur- 
chaser of  lots  4  and  5,  and  appellant  as  purchaser  for  lots  i,  2,  3 
and  6;  and  that  said  report  of  sale  was  confirmed  more  than  sixty 
days  before  this  suit  was  instituted. 

He  admits  that  he  was  on  the  land  with  Jacob  and  George  Crum 
before  the  sale  of  the  marshal,  and  before  he  had  any  interest  in  the 
land  except  as  stated  in  case  24,937,  but  whether  the  lot  he  was  on 
was  I  or  4  he  had  not  sufficient  knowledge  or  information  to  form 
a  belief,  except  from  a  survey  which  has  since  been  made  in  this 
suit.  He  had  no  survey  showing  the  number  as  set  forth  in  decree 
in  case  24,937,  nor  any  better  means  of  knowing  the  numbers  than 
appellee,  and  therefore  denies  that  he  fraudulently  misrepresented 
the  numbers  of  lots  even  before  he  had  any  interest  as  purchaser  at 
the  judicial  sale.  But  he  avers  that  lots  4  and  5  are  worth  more 
than  the  sum  bid  for  them,  and  the  amount  of  the  two  notes  he 
executed  to  Fergerson  and  Dawson,  and  if  he  fails  to  redeem  them, 
said  two  lots  can  be  sold  for  more  than  he  bid  for  them,  and  the 
Crams  will  be  fully  indemnified. 

This  elaborate  extract  is  made  from  the  answer  in  order  that  the 
manner  and  the  extent  of  the  denial  of  the  direct  averment  in  the 
petition  on  which  the  claim  for  relief  is  based,  may  be  fully  and 
clearly  comprehended. 

Appellant  does  n9t  deny  that  he  told  the  appellee  that  lots  Nos.  4 
and  5  represented  the  land  he  bought  of  Fergerson  and  Dawson, 
nor  that  he  told  him  the  improvements  were  on  those  lots ;  nor  does 
he  deny  that  the  appellee  made  the  purchase  on  the  faith  of  the 
truth  of  the  statements  made  to  him  by  appellant.  He  only  denies 
that  he  fraudulently  misrepresented  to  him  the  numbers  of  these  lots, 
presenting  in  the  preceding  part  of  the  sentence  the  reasons  for 
the  conclusions.  But  giving  to  every  word  and  the  whole  context 
the  most  liberal  construction,  the  material  allegations  are  not  tra- 
versed by  the  answer.  The  denial  is  not  that  he  did  not  make  the 
statemtents,  but  that  he  did  not  make  them  fraudulently;  and  that 
may  and  is  most  probably  true,  for  the  record  will  impress  upon  the 
reader  the  conviction  that  all  the  parties  below  under  a  mistake  as 
to  the  numbers  of  lots  on  which  the  improvements  were  located. 

But  if  the  allegations  of  the  petition  were  sufficiently  controverted 
by  the  answer,  the  fact  of  the  mistake  is  established  by  a  weight  of 
evidence  that  is  overwhelming.  The  gfreat  difference  in  the  value 
of  the  land,  and  the  fact  that  the  less  valuable  lots  sold  for  more 
than  three  timtes  as  much  as  the  most  valuable  lots,  is  a  very  power- 


200  Kentucky  Opinions. 

ful  fact  in  support  of  the  appellee's  claim  to  relief,  and  the  marshal 
who  made  the  sale,  Bryant,  and  W.  H.  Crum,  who  were  interested 
in  the  sale  and  present  when  the  mistake  was  made. 

But  it  is  insisted  that  the  judgment  in  the  first  case  is  final ;  and 
the  chancellor  cannot  revise  and  reverse  the  vice-chancellor's  de- 
cree. We  understand  the  proceeding  by  Jacob  Crum  as  a  supple- 
mental petition  to  the  first  suit,  in  the  nature  of  a  bill  of  review, 
instituted  in  the  same  court  in  which  the  decree  was  rendered,  to 
correct  that  decree  for  the  mistake  of  fact.  That  the  chancellor  may 
on  a  proper  issue  made  for  the  purpose  and  the  facts  established, 
correct  a  decree  of  a  former  term  wrongfully  entered  through  mis- 
take or  fraud,  is  too  well  established  by  authority  to  be  questioned. 
Garner's  Admr.,  v.  Strode,  5  Littell  315 ;  Brewer  v.  Bowman,  3  J. 
J.  Marsh.  492. 

Nor  is  it  material  by  what  name  the  proceeding  is  called ;  if  the 
facts  set  forth  in  the  pleading  are  such  as  to  show  that  there  was  a 
clear  mistake  in  entering  the  judgment,  and  the  complaining  party 
is  adjudged  to  take  a  tract  of  land  he  did  not  contract  to  buy,  and 
to  lose  the  one  he  did  buy,  and  the  mistake  was  natural  and  discov- 
ered after  the  term  at  which  it  was  entered,  it  is  clearly  and  satis- 
factorily established  that  the  court  which  rendered  the  judgment  has 
the  power  to  correct.  Basye  v.  Beard's  Exr,,  et  al,  12  B.  Mon.  581. 

But  it  seems  to  us  that  the  action  of  the  chancellor  may  be  sus- 
tained on  another  ground.  Jacob  Crum  purchased,  not  at  the  sale, 
but  afterwards ;  and  although  the  sale  was  confirmed  by  the  court, 
Conveyances  were  not  made;  and  the  evidences  establish  the  fact 
that  G.  Crum  should  pay  for  the  land  which  the  chancellor  by  his 
last  deed  ordered  to  be  conveyed  to  him,  and  in  the  number  and  the 
conveyance  was  in  fact  carrying  out  the  sale  as  it  was  made  and 
confirmed.  Wherefore  the  orders  complained  of  in  record  No.  i  arc 
not  prejudicial  to  appellant,  and  are  affirmed;  and  the  judgment  in 
No.  2  is  affirmed, 

/.  5*.  Butler,  for  appellant. 
Muir  Biper,  Davie,  for  appellee. 


Sarah  Crawford  v.  W.  M.  Combs. 

Husband  and  Wife— Attachment— Sufficiency  of  Petition. 

In  an  attachment  suit  against  the  husband  a  wife  may  enter  her 
appearance  and  make  defense  in  the  name  of  her  husband  for  the 
benefit  of  herself  and  minor  children. 


Sarah  Crawtobid  v,  W.  M.  Combs.  201 

Sufficiency  of  Petition. 

A  petition  on  an  account  states  no  cause  of  action  which  declares 
that  the  defendant  is  indebted  to  plaintiff  blank  dollars,  evidenced 
by  an  account  filed  amounting  to  blank  dollars,  and  prays  Judgment 
for  blank  dollars. 

APPEAL  FROM  POWELL  CIRCUIT  COURT. 

October  31,  1874. 

Opinion  by  Jupge  Lindsay  : 

The  wife  was  properly  allowed  to  enter  her  appearance  and  make 
defense  in  the  name  of  her  husband,  and  for  the  benefit  of  herself 
and  her  infant  children.  She  controverted  the  appellee's  right  to  the 
attachment,  and  asked  that  it  should  be  discharged.  The  court 
erred  in  refusing  her  prayer  in  this  regard. 

As  to  the  account  sued  on,  appellee  presents  no  cause  of  action. 
He  says  that  Crawford  is  indebted  to  him  blank  dollars  and  cents, 
for  groceries,  whiskey,  etc.,  evidenced  by  an  account  filed,  amounting 
to  blank  dollars  and  cents,  and  that  he  ought  to  recover  blank  dol- 
lars and  cents,  and  prays  judgment  for  said  amount.  If  the  petition 
had  been  confessed  appellee  could  have  recovered  nothing.  Such  a 
petition  will  not  sustain  an  attachment. 

As  to  appellee's  liability  as  surety  on  Crawford's  bond  as  master 
commissioner,  he  merely  claims  that  he  is  in  danger  of  being  ulti- 
mately compelled  to  pay  $151.  He  does  not  aver  that  he  has  ever 
paid  one  cent.  If  it  be  a  fact  that  he  is  liable,  his  claim  against 
Crawford  is  in  the  nature  of  a  debt  not  yet  due.  He  has  the  right 
by  attachment  to  secure  himself,  but  the  attachment  could  not  be  is- 
sued by  the  clerk  until  it  was  first  granted,  by  the  circuit  court,  or 
the  judge  thereof,  or  by  the  judge  of  the  county  court.  The  attach- 
ment in  this  case  was  issued  by  the  clerk  without  having  been 
granted  in  the  manner  indicated.  It  is  therefore  unauthorized  and 
void. 

The  judgment  sustaining  it  is  reversed  and  the  cause  remanded 
with  instruction  to  set  aside  said  judgment,  and  to  discharge  the 
order  of  attachnrent.  As  the  property  was  taken  from  the  posses- 
sion of  the  wife,  the  court  should  turn  over  the  proceeds  to  her.  Ap- 
pellee may  proceed  with  his  action  in  other  regards,  and  may  sue  out 
a  new  attachment,  if  grounds  therefor  are  now  in  existence. 

The  question  as  to  whether  the  wife  can  hold  the  attached  prop- 


202  Kentucky  Opinions. 

erty  or  its  proceeds  when  properly  proceeded  against  need  not  be 
decided. 

/.  B.  White,  for  appellant. 


James  Bennett  v.  J.  D.  Smith's  Adm'r. 


Decedent's  BsUte— Parties  to  Petition  to  Sell  Real  EsUte. 

The  heirs  of  a  decedent  must  be  made  parties  to  a  petition  of  an  ad- 
ministrator to  sell  real  estate  to  pay  debts,  and  where  they  are  named 
as  defendants,  but  Join  the  administrator  as  plaintifFs^  an  order  of  sale 
procured  in  such  action  will  not  be  set  aside. 

APPEAL  FROM  MADISON  CIRCUIT  COURT. 

November  4,  1874. 

Opinion  by  Judge  Peters  : 

In  the  original  suit  brought  by  the  administrator  of  J.  D.  Smith, 
deceased,  his  heirs  were  not  made  parties ;  but  by  an  amended  peti- 
tion the  heirs  with  their  guardian  united  as  plaintiffs  with  the  ad* 
ministrator,  and  while  the  petition  is  not  sworn  to,  the  plaintiffs 
therein  are  no  less  bound  by  its  allegations ;  and  if  they  were  made 
by  the  attorneys  without  their  authority  they  will  be  responsible  to 
those  they  profess  to  represent,  the  attorneys  having  signed  the 
amended  petition. 

It  is  manifest  from  the  statements  of  the  administrator  and  the 
report  of  the  master  that  the  personal  assets  were  insufficient  to  pay 
the  debts  of  the  intestate,  and  that  a  sale  of  at  least  a  part  of  the 
real  estate  was  necessary  for  that  purpose.  In  such  cases  Sec.  465 
of  the  Civil  Code,  authorizes  the  personal  representative,  an  heir, 
devisee,  legatee,  distributee,  or  creditor  of  a  deceased  person,  to  in- 
stitute an  action  by  equitable  proceedings  for  the  settlement  of  his 
estate,  and  if  the  personal  representative  or  heir  may  institute  an 
action  for  the  purpose  they  certainly  may  join  in  the  prosecution  of 
such  an  action  when  it  shall  be  necessary,  as  in  this  case,  that  such 
an  action  shall  be  prosecuted.  And  although  the  creditors  may  not 
be  specially  named  as  defendants,  still,  by  presenting  their  claims 
and  proving  them  before  the  master,  they  make  themselves  defend- 
ants to  the  action. 

As,  therefore,  the  sale  of  a  part  of  the  real  estate  of  the  intestate 
was  necessary  for  the  payment  of  his  debts,  and  as  his  heirs  have 


John  H.  Richardson  v,  John  P.  Richardson.  203 

joined  as  plaintiffs  in  the  suit  to  procure  the  sale  of  the  town  lots  de- 
scribed, they  will  be  concluded  by  the  judgment  of  sale,  and  their 
title  will  pass  to  the  purchaser  at  the  judicial  sale  by  the  deed  of  the 
court's  commissioner. 

The  court  below,  therefore,  did  not  err  in  refusing  to  set  aside 
the  sale,  and  the  judgment  is  affirmed. 

Chenault  &  Bennett,  for  appellant. 
Turner  &  Smith,  Bronston,  for  appellees. 


John  H.  Richardson  v.  John  P.  Richardson. 


Judgments  Set  Off  Against  Each  Other — ^Jurisdiction. 

Judgments  for  the  recovery  of  money  may  be  set  off  against  each 
other,  but  the  circuit  court  has  no  jurisdiction  to  enjoin  the  collec- 
tion of  Judgments  rendered  by  a  Justice  of  the  peace. 

Independently  of  the  provisions  of  the  code  (Civil  Code,  §  470) 
courts  of  chancery  have  Jurisdiction  to  set  off  one  Judgment  against 
another  when  injustice  and  wrong  are  about  to  result  to  one  of  the 
parties  on  account  of  the  insolvency  or  non-residence  of  the  other. 

APPEAL  FROM  ESTILL  CIRCUIT  COURT. 

November  4,  1874. 

Opinion  by  Judge  Cofer  : 

The  appellant  having  recovered  six  judgments  in  the  court  of  a 
justice  of  the  peace  on  notes  for  fifty  dollars  each,  the  appellee 
brought  suit  in  equity  in  the  circuit  court  of  the  county  to  enjoin  the 
judgments,  on  the  ground  that  the  notes  were  not  his  acts  and  deed, 
and  that  he  owed  the  appellant  nothing,  and  the  court  on  final  hear- 
ing perpetually  enjoined  the  collection  of  the  judgments. 

Sec.  314,  Civil  Code,  provides  that  an  injunction  to  stay  proceed- 
ings on  a  judgment  or  final  order  of  the  court  shall  not  be  granted 
in  an  action  brought  by  the  party  seeking  the  injunction,  in  any 
other  court  than  that  in  which  the  judgment  or  order  was  rendered 
or  made. 

It  is,  therefore,  clear  that  the  circuit  court  had  no  jurisdiction  in 
this  case  to  enjoin  appellant's  judgments,  and  so  much  of  the  judg- 
ment as  attempts  to  do  so  must  be  reversed.  If  the  appellee  is  the 
owner  of  the  judgment  rendered  in  the  circuit  court  against  appel- 
lant in  favor  of  the  distributees  of  Moab  Freeman,  and  appellant  is 
a  non-resident  of  this  state,  and  anything  remains  due  on  that  judg- 


204  Kentucky  Opinions. 

ment,  he  may  by  appropriate  proceedings  in  the  proper  court  have 
it  set  oflP  against  the  judgments  in  appellant's  favor  in  the  justice's 
court    Sec.  407,  Civil  Code. 

We  cannot  determine  from  anything  in  this  record  whether 
the  appellee  is,  or  claims  to  be  the  owner  of  that  judgment;  but 
if  he  is  the  owner,  he  ought  to  be  allowed  to  amend  his  pleadings 
on  the  return  of  the  cause,  and  have  the  judgments  offset  one 
against  the  other,  if  the  circuit  court  has  jurisdiction  at  appellee's 
instance  to  so  decree. 

Section  407,  Civil  Code,  provides  that  "judgments  for  the  recov- 
ery of  money  may  be  set  off  against  each  other,  having  due  regard 
to  the  legal  and  equitable  rights  of  all  persons  interested  in  both 
judgments.  The  set-off  may  be  ordered  upon  motion,  after  reason- 
able notice  to  the  adverse  party,  where  both  judgments  are  in  the 
same  court,  or  in  an  action  by  equitable  proceedings  in  the  court  in 
which  the  judgment  sought  to  be  annulled  by  the  set-off,  was  ren- 
dered." The  judgments  which  the  appellee  seeks  to  annul  by  the 
set-off  are  those  against  him  in  the  justice's  court;  and  it  would 
seem  that  this  section  requires  the  proceedings  for  that  purpose  to 
be  instituted  in  that  court. 

But  courts  of  chancery  have  jurisdiction,  independent  of  the  code 
of  practice,  to  set  off  one  judgment  against  another,  when  injustice 
and  wrong  are  about  to  result  to  one  of  the  parties  on  account  of 
the  non-residence  or  insolvency,  of  the  other.  Merrill  v.  Souther  & 
Fowler,  6  Dana  305 ;  Allnut,  et  aL,  v,  Winn,  3  J.  J.  Mar.  304. 

If,  therefore,  the  appellee  is  the  equitable  owner  of  the  judgment 
against  appellant  in  the  case  of  Sally  Freeman,  et  al.,  against  him, 
and  the  latter  is  a  non-resident,  the  appellee  may  be  allowed  to  amend 
his  pleadings  so  as  to  set  up  that  judgment,  and  have  so  much  of  it 
as  may  remain  unsatisfied  after  deducting  such  credits  as  appellant 
may  be  entitled  to,  set  off  against  the  judgments  against  appellee  in 
the  justice's  court. 

But  even  then  no  enquiry  can  be  made  into  the  validity  or 
justice  of  those  judgments.  That  subject  is  ccMicluded;  and  if  it 
were  not,  the  appellee  could  not  complain.  In  the  suit  of  Sally 
Freeman,  et  al.,  against  appellant  he  was  charged  with  the  notes  on 
appellee,  and  they  go  to  make  up  a  part  of  the  amount  of  the  judg- 
ment. If  appellee  owns  the  judgment,  of  course  he  must  account  for 
the  notes,  and  if  he  does  not,  he  must  pay  the  notes,  for  which  ap- 
pellant has  been  required  to  account,  to  the  distributees  of  Moab 
Freeman.     The  appellant  is  also  entitled  to  credit  the  judgment 


Basil  Bailey  v.  Milton  Lykins.  aos 

i^inst  him,  for  the  advances  made  by  him  to  the  various  benefi- 
ciaries under  the  deed  of  trust  from  Freeman  to  him,  with  interest 
from  the  date  of  the  payment.  That  judgment  entitles  him  to  cred- 
its therefor  by  its  express  terms,  and  as  appellee  was  a  party  to  that 
suit  and  judgment,  he  is  bound  by  all  its  terms;  and  if  he  were  not, 
appellant  would  still  be  entitled  to  the  credits. 

He  had  the  legal  title  to  the  land  under  the  deed  of  trust,  and  had 
authority  to  make  the  advances  by  its  terms;  and  having  done  so 
without  actual  notice,  as  far  as  appears,  of  the  sales  to  appellee,  and 
Gome  of  the  payments  having  been  made  before  appellee  purchased 
the  shares  of  those  to  whom  they  were  made,  he  holds  subject  to 
deductions  out  of  the  judgment  for  all  the  advances  made  to  any  of 
the  beneficiaries  prior  to  the  date  of  the  judgment  against  appellant. 
The  three  notes  still  held  by  appellant,  if  executed  by  the  appellee 
for  rent,  and  charged  to  the  former  in  the  settlement,  should  also  be 
deducted,  principal  and  interest,  from  the  judgment.  Unless  the  ap- 
pellee shall  offer  to  amend  his  pleadings  within  a  reasonable  time  so 
as  to  conform  to  the  directions  of  this  opinion,  his  injunction  should 
be  dissolved,  and  his  petition  should  be  dismissed ;  but  as  appellant 
concedes  in  his  answer  that  appellee  ought  not  to  be  compelled  to 
pay  the  three  notes  tendered  therewith,  they  should  be  cancelled  be- 
fore the  petition  is  dismissed. 

Wherefore  the  judgment  is  reversed,  and  the  cause  remanded  for 
further  proceedings  consistent  with  this  opinion. 

A.  W.  Quinn,  for  appellee. 


Basil  Bailey  v.  Milton  Lykins. 

Waiver  by  Appearance. 

A  defendant  in  a  suit  for  forcible  detainer,  who  has  appeared  and 
defended  in  the  justice  court,  cannot  in  the  circuit  court  take  ad- 
vantage for  want  of  proper  service  of  the  writ. 

APPEAL  FROM  LEWIS  CIRCUIT  COURT. 
November  5,  1874. 

Opinion  by  Judge  Lindsay  : 

It  is  not  necessary  to  decide  whether  or  not  a  constable  has  the 
right  to  execute  a  warrant  for  forcible  detainer. 

In  this  case  the  appellee  appeared  at  the  trial  in  the  county,  and 


2o6  Kentucky  Opinions. 

made  defense.  He  cannot,  therefore,  take  advantage  in  the  circuit 
court,  upon  the  traverse,  for  want  of  proper  service  of  the  writ 
Philips  V.  Harmon,  et  al.,  i  Dana  468 ;  Williamson  v.  Boucher,  7  J. 
J.  Marsh.  252.  The  judgment  of  the  justice  or  of  the  circuit  court 
may  still  be  carried  out  by  the  sheriff,  and  the  rights  of  the  appellee 
could  not  have  been  prejudiced  by  the  summoning  of  the  jury,  or 
the  service  of  the  writ  by  the  constable.  The  judgment  of  the  cir- 
cuit court  quashing  the  warrant  and  the  service  thereof  is  reversed, 
and  the  cause  remanded  for  a  trial  of  the  issue  raised  by  the  traverse. 

George  M.  Thomas,  for  appellant. 


John  A.  Kanopka  v.  John  Jaquett. 

Real  Estate — Conveyance — False  Representations. 

Where  a  grantee  is  induced  to  buy  real  estate  and  take  conveyance 
thereof  by  the  false  representations  of  an  Insolvent  grantor,  that  he 
is  the  owner  thereof,  although  the  contract  is  executed,  the  warranty 
in  the  deed  is  no  indemnity,  and  he  is  entitled  to  relief  to  the  extent 
that  his  vendor  had  no  title  to  the  land  conveyed. 

APPEAL  FROM  PENDLETON  CIRCUIT  COURT. 
It  November  6,  1874. 

Opinion  by  Judge  Peters: 

Taking  the  allegations  of  the  answer  as  true,  which  must  be  done 
V  for  the  purposes  of  the  demurrer,  and  it  appears  that  appellant  pur- 
chased a  small  tract  of  land  from  appellee  at  its  full  value ;  that  ap- 
pellee at  the  time  represented  to  appellant  and  assured  him  that  he 
had  a  clear  and  perfect  title  to  the  whole  tract  of  land,  and  appellant, 
relying  on  the  representations  made  to  him  by  appellee,  accepted  a 
conveyance  for  the  land,  believing  that  he  thereby  acquired  a  perfect 
and  clear  title  to  ^he  land ;  but  that  he  has  since  discovered  that  said 
representations  made  to  him  by  appellee  were  false ;  that  he  repre- 
sented that  he  owned  three-fifths  of  said  land,  having  purchased  the 
interest  of  Sarah  Tippett  and  Mary  E.  Williams.  But  that  upon 
examination  he  finds  that  there  is  no  record  evidence  of  such  pur- 
chasers, and  that  he  has  not  acquired  their  titles  to  their  portions  of 
said  land,  and  that  appellee  is  insolvent. 

Although  the  contract  may  be  executed,  still,  as  appellant  has 
pointed  out  the  particular  defects  in  the  title,  of  which  he  was  igno- 


O.  C.  Bowles  v,  John  N.  Watkins.  207 

rant  at  the  time  the  conveyance  was  made,  and  alleges  that  he  was 
induced  to  accept  the  conveyance  by  the  misrepresentations  of  appel- 
lee, who  is  insolvent,  whereby  his  warranty  is  no  indemnity  for  the 
defect  of  title,  he  shows  himself  entitled  to  relief  to  the  extent  that 
his  vendor  had  no  title  to  the  land. 

Young  V.  Hopkins,  et  al.,  6  T.  B.  Mon.  18.  Wherefore  the  judg- 
ment is  reversed  and  the  cause  is  remanded  with  directions  to  over- 
rule the  demurrer  to  the  answer,  and  for  further  proceedings  con- 
sistent herewith. 

C.  H.  Lee,  for  appellant, 
John  H.  Fryer,  for  appellee. 


O.  C.  Bowles  v,  John  N.  Watkins. 

Judgment  in  Foreign  State — Pleading  to  Invalidate. 

Where  it  is  sought  to  invalidate  a  judgment  taken  in  a  foreign 
state,  the  petition,  to  be  good  against  demurrer,  must  aver  facts  show- 
ing that  the  court  rendering  such  Judgment  had  no  jurisdiction.  The 
pleading  of  mere  conclusions  is  not  sufficient. 

APPEAL  FROM  PIKE  CIRCUIT  COURT. 
November  7,  1874. 

Opinion  by  Judge  Pryor  : 

This  is  an  attempt  to  invalidate  a  judgment  obtained  in  a  Virginia 
court,  subjecting  the  lands  of  James  Hamilton,  deceased,  to  the  pay- 
ment of  his  debts.  Whether  the  court  rendering  the  judgment  had 
jurisdiction  to  sell  does  not  appear,  nor  is  it  ever  stated  in  what  court 
the  proceeding  was  instituted,  or  what  was  the  character  of  this  pre- 
tended judgment. 

If  the  court  had  no  jurisdiction  to  sell  the  land,  and  the  appellees 
no  claim  against  the  estate,  the  sale  passed  no  title  to  the  purchaser. 
As  the  court  below  was  called  on  to  disregard  the  judgment  of  the 
Virginia  court  and  as  this  pretended  judgment  is  made  the  basis  of 
appellant's  right  to  recover,  there  should  be  some  allegation  showing 
a  want  of  jurisdiction  over  the  property  sold  or  the  parties  entitled 
to  it.  The  appellant  had  not  purchased  all  the  interest  when  this  sale 
was  made.  The  court  below  acted  properly  in  sustaining  the  de- 
murrer to  the  petition,  but  gave  the  court  no  means  of  ascertaining 
the  right  of  the  Virginia  court  to  sell ;  and  the  statements  upon  this 


2o8  Kentucky  Opinions. 

subject  are  only  the  conclusions  of  the  pleader  without  the  facts 
upon  which  they  are  based. 
Judgment  affirmed. 

Apperson  &  Reid,  for  appellant. 
A.  J.  Auxier,  for  appellee. 


Samuel  Hall  v.  Russell  Hamilton. 

Perjury — Grand  Jurors  Competent  Witnesses. 

Where  in  a  civil  suit  one  Is  charged  with  perjury  in  making  a  state- 
ment under  oath  before  the  grand  jury,  a  member  of  the  grand  Jury 
Is  competent  to  prove  what  the  statement  was. 

APPEAL  FROM  FLOYD  CIRCUIT  COURT. 
November  7,  1874. 

Opinion  by  Judge  Pryor  : 

Although  the  allegations  of  the  petition  fail  to  present  a  cause  of 
action,  the  defect  has  been  cured  by  the  answer,  in  which  it  is  admit- 
ted that  the  defendant  charged  the  plaintiff  with  the  crime  of  per- 
jury, in  making  a  statement  under  oath  before  the  grand  jury,  that 
he,  the  defendant,  had  stolen  plaintiff's  pocketbook  and  money,  when 
he,  the  plaintiff,  knew  that  the  statement  made  was  false.  Upon  this 
issue  the  case  went  to  the  jury,  and  the  only  question  necessary  to  be 
considered  is  "was  a  member  of  the  grand  jury,  before  whom  the 
statement  was  made,  competent  to  prove  what  that  statement  was 

Sec.  109,  of  the  Criminal  Code,  was  enacted  for  the  protection  of 
the  grand  jurors  in  their  deliberations  upon  matters,  on  the  dis- 
charge of  their  duty  as  such,  but  even  a  grand  juror  who  has  testi- 
fied falsely  in  giving  testimony  before  his  fellow  jurors,  may  be  in- 
dicted for  perjury,  and  his  statement  made,  proven  by  members  of 
the  same  body.  Sec.  iii,  Criminal  Code.  By  Sec.  no  of  the  same 
act,  a  member  of  the  grand  jury  is  competent  to  show  that  the  wit- 
ness examined  upon  the  final  trial  of  the  case,  for  which  the  indict- 
ment was  found,  had  made  statements  to  the  grand  jury,  which  were 
diflEerent  from  those  made  by  the  witness  on  the  final  hearing.  In 
this  case  the  complaint  is  that  the  appellee  charged  appellant  with 
swearing  to  a  lie  before  the  grand  jury,  and  there  is  no  reason  why, 
when  the  plaintiff  is  asking  an  investigation  himself  as  to  the  truth 
or  falsity  of  the  charge,  that  those  who  heard  his  statements  should 


J.  M.  Lewis,  et  al.,  v.  William  Richards,  et  al.         209 

have  their  mouths  sealed  as  to  what  transpired  with  reference  to  the 
charges  made.  There  is  no  question  of  public  policy  involved,  nor 
any  rule  of  law,  that  we  are  aware  of,  that  makes  a  grand  jury  in- 
competent in  such  a  case.  The  law  requires  secrecy  in  certain  cases 
upon  grand  juries,  by  the  express  provisions  of  the  code,  but  in  all 
others  the  grand  juror  has  the  right  to  speak,  and  is  no  more  pro- 
tected than  any  other  witnesses  would  be.  The  issue  as  to  whether 
the  plaintiff  swore  falsely  was  fairly  presented  to  the  jury  by  the 
witnesses,  and  the  judgment  must  be  affirmed. 

/.  R.  Bates,  for  appellant. 
Apperson  &  Reid,  for  appellee. 


J.  M.  Lewis,  et  al.,  v.  William  Richards,  et  al. 

Attachment — ^Levy— Lien — Purchaser. 

If  a  lien  is  created  by  a  writ  of  attachment  such  lien  is  lost  when 
returned  by  the  sheriff  without  a  levy. 

Purchaser. 

A  debtor  may  lawfully  sell  his  property  and  a  purchaser  may  buy  It 
before  any  levy  is  made  on  it  or  has  attached  to  it,  and  if  the  sale 
is  in  good  faith  for  a  valuable  consideration  it  will  be  upheld  even 
though  the  purchaser  and  seller  knew  there  were  creditors  seeking 
to  collect  their  claims. 

APPEAL  FROM  ROWAN  CIRCUIT  COURT. 
November  7,  1874. 

Opinion  by  Judge  Pryor  : 

The  Hen,  if  any,  created  by  the  attachment,  was  lost  when  returned 
by  the  sheriff.  It  never  was  levied  on  any  property,  and  the  return 
made  by  the  sheriff  is  that  it  was  executed  on  H.  B.  Myers.  This 
constitutes  no  levy,  and  the  Hen,  when  the  attachment  was  returned, 
ceased  to  exist.  Nor  was  there  any  attachment  or  garnishee  issued 
on  the  amended  petition,  and  if  there  had  been,  the  equity  of  Lewis 
was  superior  to  that  of  appellee,  for  the  reason  that  the  latter  had 
already  purchased  and  paid  Myers  for  his  interest  in  the  land.  There 
is  no  such  evidence  in  the  record  that  would  authorize  the  conclusion 
that  Lewis  and  Myers  had  combined  to  defraud  Richards  Lewis.  He 
may  have  known  of  the  efforts  on  the  part  of  Richards  to  make  his 
debt,  still  this  did  not  preclude  Lewis  from  making*  his  or  purchasing 

14 


2IO  Kentucky  Opinions. 

Myers's  interest  in  the  property.  Richards  had  no  lien  on  it,  or  any 
right  to  it  superior  to  any  or  of  the  other  creditors.  The  judgment 
of  the  court  below  is  reversed,  and  the  cause  remanded  with  direc- 
tions to  dismiss  appellees*  petition  as  against  both  the  appellants. 

Reid  &  Stone,  for  appellants. 
Nesbitt  &  Gudgell,  for  appellees. 


John  Williams  v.  A.  C.  Godsay. 


Suit  on  Note— Defense — Evidence. 

Where  a  suit  is  brought  on  a  note,  the  answer  pleading  payment,  and 
that  plalntifr  accepted  payment  in  confederate  money  in  full  payment, 
and  the  illegality  of  confederate  money  is  pleaded  in  reply,  it  was 
necessary  for  defendant  to  show  by  proof  that  at  the  time  and  place 
of  payment  the  military  power  and  Jurisdiction  of  the  confederate 
states  predominated,  or  that  the  payment  was  voluntarily  received 
by  plaintiff  in  satisfaction. 

Bvidence. 

It  was  error  to  refuse  to  permit  plaintiff  to  testify  as  to  such  mat- 
ters in  his  own  behalf. 

APPEAL  FROM  PERRY  CIRCUIT  COURT. 

November  9,  1874. 

•    Opinion  bt  Judge  Peters  : 

This  action  was  brought  by  appellant  against  Austin  C.  Godsay, 
Granvill  Coumbs,  and  Nicholas  Williams  to  collect  five  hundred  dol- 
lars for  loans  of  money,  with  the  interest  from  1859,  and  for  which 
the  defendants  executed  their  note.  In  this  petition  appellant  alleges 
that  appellee,  Godsay,  brought  to  him  Confederate  money,  and  repre- 
sented that  it  was  good  and  current  money,  and  by  false  and  fraudu- 
lent representations,  induced  him  to  take  bills  and  notes  on  the  Con- 
federate states  in  payment  for  his  debts,  which  were  at  the  time 
worthless,  and  its  circulation  actually  prcrfiibited  by  law;  and  that 
by  means  of  said  false  and  fraudulent  representations,  he,  said  God- 
say, got  possession  of  the  note.  Wherefore  he  prayed  judgment  for 
the  amount  of  his  debt. 

The  borrowing  of  the  money  and  the  execution  of  the  note,  as  al- 
leged in  the  answer^  has  been  paid  off  and  fully  discharged ;  and  it 
is  also  alleged  that  it  was  paid  with  notes  on  the  Confederate  states 
of  America  at  the  special  instance  and  request  of  the  plaintiff,  and 


John  Wiluams  v,  A.  C.  Godsay.  211 

that  when  the  payment  was  made  the  parties  were  inside  of  the  Con- 
federate lines,  and  the  country  where  they  were  was  then  under  the 
control  of  the  Confederate  government,  and  Confederate  money  was 
then  and  there  current  funds. 

To  the  answer,  a  reply  was  filed  setting  forth  in  detail  the  cir- 
cumstances under  which  the  appellant  was  induced  or  compelled  to 
receive  the  Confederate  money  in  satisfaction  of  his  debt.  No  objec- 
tions appears  to  have  been  made  to  the  reply,  and  the  demurrer  to 
the  answer  having  been  overruled,  the  parties  went  to  the  trial  on  the 
pleadings  as  herein  stated,  and  a  verdict  and  judgment  having  been 
rendered  for  the  defendants,  the  plaintiff  below  has  appealed. 

Although  the  execution  of  the  notes  was  admitted  in  the  answer, 
it  appears  from  the  bill  of  exceptions  that  appellant  introduced  ap- 
pellee, Godsay,  as  a  witness  to  prove  that  he  loaned  him  the  money, 
and  that  he,  with  his  co-obligers,  executed  their  note  therefor.  But 
after  proving  those  facts,  he  went  on  to  prove  for  himself  that  hav- 
ing paid  about  $72.50  of  the  note  in  Kentucky  bank  paper,  he  paid 
off  the  balance,  partly  in  interest  bearing  notes  of  the  Confederate 
states,  and  partly  in  Confederate  bills  to  the  full  amount  of  said  note, 
which  payments,  as  he  proved,  were  made  at  the  special  instance  and 
request  of  appellant  at  his  own  house,  and  that  he  accepted  said  Con- 
federate notes  and  bills  in  payment  and  full  satisfaction  of  said  note, 
and  gave  up  the  note.  Appellant  then  asked  to  be  permitted  to  tes- 
tify as  to  the  new  matter  not  asked  by  him  and  proved  by  Godsay  in 
his  own  behalf ;  but  the  court  overruled  his  request. 

The  circulation  of  Confederate  currency  within  the  military  lines 
and  jurisdiction  of  the  United  States  was  forbidden  by  its  laws,  and 
was  illegal ;  but  the  non-combatant  citizen  was  compelled  to  regulate 
his  conduct  by  the  laws  and  public  policy  of  that  power  which  might 
predominate  over  him  for  the  time  being,  and  the  currency  that  was 
recognized  by  the  laws  and  military  authority  of  the  Confederate 
states  as  money,  and  its  circulation  encouraged  by  its  policy,  and 
which  did  so  circulate  within  its  military  lines,  and  jurisdiction  as  a 
valuable  and  not  a  vicious  or  illegal  consideration,  especially  when 
voluntarily  received  and  used.  Martin  v,  Hortin,  et  al.,  i  Bush  629. 

As  appellees  in  their  answer  were  not  content  to  rely  upon  the 
allegation  of  payment  and  possession  of  the  note,  as  at  least  prima 
facie  evidence  of  the  fact,  but  choose  to  state  how  and  in  what  the 
payment  was  made,  it  was  necessary  for  them  to  show  by  proof  that 
at  the  time  and  place  of  payment  the  military  power  and  jurisdiction 
of  the  Confederate  states  predominated ;  or  that  the  notes  and  bills 


212  Kentucky  Opinions. 

were  voluntarily  received  by  appellant  in  satisfaction  of  his  debts. 
And  as  appellee,  Godsay,  as  new  matter,  proved  facts  necessary  to 
sustain  the  defense,  the  court  below  erred  in  refusing  to  permit  ap- 
pellant to  testify  as  to  such  new  matter  in  his  own  behalf. 

Sec.  673,  Civil  Code.  For  that  error  the  judgment  is  reversed  and 
the  cause  is  remanded  for  a  new  trial  and  further  proceedings  con- 
sistent herewith. 

H.  C.  Lilly,  for  appellant 
L.  N,  Car  dwell,  for  appellee. 


R.  M.  Webb  v.  M.  B.  Mosely. 

Quanntor — ^Notice  of  Acceptance  of  Guaranty — ^Reasonable  Time. 

Where  a  person  by  letter  not  addressed  to  any  particular  individual 
guarantees  the  credit  of  another,  such  guarantor  has  the  right  to  be 
informed  within  a  reasonable  time,  when  any  one  should  accept  it, 
and  not  receiving  such  notice  he  is  not  bound. 

Reasonable  Time. 

Where  a  written  letter  of  guaranty  is  acted  upon  in  November, 
1870,  and  the  guarantor  is  not  notified  of  the  acceptance  of  his  guar- 
anty until  August,  1871,  such  a  notice  is  not  given  within  a  reason- 
able time. 

APPEAL  FROM  ESTILL  CIRCUIT  COURT. 
November  10, 1874. 

Opinion  by  Judge  Lindsay  : 

The  letter  upon  which  it  is  sought  to  hold  Mosely  bound  as  guar- 
antor for  Bell,  bears  date  October  8,  1870. 

Webb  claims  to  have  furnished  to  or  for  Bell,  machinery  and  ma- 
terial to  the  amount  of  $1,676.76.  According  to  his  own  version  of 
the  transaction,  he  accepted  the  proposition  set  out  in  Mosely's  let- 
ter, at  least  as  early  as  November  i,  1870,  and  continued  to  fur- 
nish material  and  machinery  up  to  April,  1871.  Mosely  was  not 
notified  of  the  acceptance  until  after  the  middle  of  August,  1871. 

As  a  matter  of  law,  the  delay  in  giving  notice  of  the  acceptance 
was  unreasonable.  The  letter  was  not  addressed  to  any  particular 
individual.  It  authorized  any  person  or  firm  to  act  in  the  matter. 
Mosely  had  the  right  to  be  informed,  when  any  one  should  accept 
it.  "Otherwise  he  would  not  know  who  was  becoming  his  creditor. 


i> 


R.  M.  Webb  v.  M.  B.  Mosely.  213 

A  party  giving  a  letter  of  guaranty  has  the  right  to  know  whether 
it  is  accepted,  and  whether  the  person  to  whom  it  is  addressed  means 
to  give  credit  on  the  footing  of  it  or  not.  It  may  be  nv>st  material, 
not  only  as  to  his  responsibility,  but  as  to  future  rights  and  proceed- 
ings. It  may  regulate,  in  a  great  measure,  his  course  of  conduct, 
and  his  exercise  of  vigilance  in  regard  to  the  party  in  whose  favor 
it  is  given.  Especially  is  it  important  in  the  case  of  a  continuing 
guaranty,  since  it  may  guide  his  judgment  in  recalling  or  suspending 
it.  Douglass,  et  aL,  v,  Reynolds,  Byrne  &  Co.,  7  Peters  113. 

The  letter  in  this  case  is  in  some  respects  in  the  nature  of  a  con- 
tinuing guaranty.  The  reasonable  presumption  was  that  the  ma- 
terials and  machinery  would  not  all  be  furnished  at  the  same  time, 
nor  by  the  same  party.  Hence  Mosely  had  the  right  to  expect  that 
the  persons  who  should  accept,  would  not  only  give  him  notice  of 
their  acceptance  within  a  reasonable  time  thereafter,  but  would  in- 
form him  as  to  the  extent  of  their  acceptance.  He  was  under  no  ob- 
ligations to  make  inquiry  as  to  whether  his  offer  had  been  accepted 
nor  as  to  who  the  acceptor  was,  or  who  the  acceptors  were.  The  par- 
ties who  intended  to  hold  him  liable  for  the  debts  of  Bell  were  bound 
by  law  to  give  him  such  notice  as  would  bind  him.  Here  the  appel- 
lant took  no  steps  to  give  notice  until  long  after  all  the  material  and 
machinery  had  been  furnished,  and  the  mill*  completed.  But  with- 
holding the  notice,  he  deprived  the  guarantor  of  the  right  of  recall- 
ing or  suspending  the  guaranty.  He  placed  it  out  of  his  power  to 
take  any  steps  to  secure  himself,  which  possibly  he  might  have  done 
notwithstanding  Bell's  insolvency.  But  it  is  immaterial  whether  he 
could  or  could  not  have  secured  himself.  In  order  to  bind  Mosely, 
the  law  required  Webb  to  notify  him  of  his  acceptance.  He  failed 
to  do  so  within  a  reasonable  time,  and  he  cannot  now  perfect  and 
render  binding,  that  which  in  law  never  become  a  contract,  by 
showing  that  Mosely  could  not  have  been  injured  by  his  failure  to 
give  the  notice.  It  is  not  a  question  as  to  whether  Mosely  was  or 
was  not  injured  by  the  laches  of  Webb,  but  whether  the  alleged  con- 
tract upon  which  Webb  sues,  as  matter  of  law  ever  became  a  contract. 

We  are  satisfied  that  it  did  not.  The  judgment  of  the  circuit  court 
must  therefore  be  affirmed, 

T.  N.  Allen,  J.  R.  Morton,  for  appellant. 
Breckenridgt  &  Buckner,  for  appelUe. 


214  Kentucky  Opinions. 

William  Chamberlin  v.  Dudley  Young. 

Ejectment— Judgment. 

Where  by  the  terms  of  the  Judgment  it  is  left  for  the  clerk  or  sherifT 
to  determine  judicially  what  land  is  claimed  in  the  petition  for  pos- 
session, such  judgment  is  void  for  uncertainty.  The  determination 
of  what  land  plaintiff  was  entitled  to  the  possession  of,  was  for  the 
court,  and  should  be  incorporated  in  the  judgment 

APPEAL  FROM  PENDLETON  CIRCUIT  COURT. 

November  11,  1874. 

Opinion  by  Judge  Lindsay  : 

The  petition  describes  by  metes  and  bounds  the  no  acres  of  land 
claimed  by  appellee,  and  charges  that  appellant,  without  right,  holds, 
possesses  and  detains  about  15  acres  in  the  southeast  comer  of  said 
no-acre  tract. 

The  jury  found  for  the  appellee  the  land  claimed  in  the  petition. 
The  verdict  is  sufficiently  specific.  A  writ  of  habere  facias,  direct- 
ing the  sheriff  to  place  appellee  in  possession  of  all  the  land,  not 
exceeding  fifteen  acres,  held  by  appellant  in  the  southeast  corner  of 
the  boundary  of  the  no-acre  tract,  could  be  executed.  But  the  judg- 
ment rendered  on  the  verdict  is  void  for  uncertainty.  It  is  in  the 
language  of  the  verdict.  It  leaves  either  the  clerk  or  the  sheriff  to 
determine,  judicially,  what  land  is  claimed  in  the  petition.  This  fact 
should  have  been  determined  by  the  court,  and  its  determination 
should  have  been  incorporated  into  the  judgment.  The  judgment 
should  describe  the  land  with  sufficient  certainty  to  enable  the  minis- 
terial officers  to  execute  it,  without  reference  to  the  pleadings. 

We  see  no  error  in  the  action  of  the  court  up  to  the  finding  by 
the  jury.  There  was  proof  conducing  to  show  that  Jennings  entered 
under  appellee,  that  Duncan  entered  under  Jennings,  and  that 
Chamberlin  entered  under  Duncan.  If  such  were  the  case,  appellee 
could  recover  without  showing  title  in  himself. 

Chamberlin  denies  that  he  is  the  tenant  of  appellee,  and  there- 
fore was  not  entitled  to  notice  to  quit  the  possession.  If  Chamberlin 
held  under  an  oral  contract  of  purchase,  entered  into  either  by  him- 
self or  Jennings,  and  desired  to  have  the  questions  of  rents,  profits, 
and  improvements  settled  by  the  chancellor,  he  should  have  set  up 
his  claim,  and  asked  to  have  the  cause  transferred  to  equity.  It  is 
too  late  after  verdict  to  raise  this  question. 

For  the  error  as  to  the  form  of  the  judgment,  it  is  reversed.  The 


James  Mattingly  v.  Nancy  Lee's  Adm'r.  215 

cause  is  remanded  with  instructions  to  render  judgment  on  the  ver- 
diet,  in  the  manner  and  form  herein  indicated. 

A.  R.  Clark,  for  appellant 
W.  IV.  Ireland,  for  appellee. 


James  Mattingly  v.  Nancy  Lee's  Adm'r. 

Wills— Probate— Sale  of  Real  EsUte— Judgment 

After  a  will  directing  the  sale  of  land  is  prol)ated,  and.  before  the 
probate  of  such  will  is  annulled  upon  the  appeal  of  those  contesting 
its  Talidity,  it  is  legal  for  the  executor  to  sell  the  land  as  directed  by 
the  will,  and  such  sale  will  be  upheld. 

Judgment 

A  Judgment  directing  the  sale  of  real  estate  by  an  executor  or  ad- 
ministrator, is  invalid  which  fails  to  prescribe  the  time  that  the  prop- 
erty should  be  advertised  for  sale. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

November  11,  1874. 

Opinion  by  Judge  Pryor  : 

The  sale  of  the  land  to  the  appellant  was  made  after  the  probate 
of  the  will,  and  before  it  was  annulled  upon  the  appeal  by  those  con- 
testing its  validity ;  in  fact,  no  step  had  been  taken  by  those  hostile 
to  the  will  for  the  purpose  of  setting  it  aside  at  the  time  the  adminis- 
trator with  the  will  annexed  and  the  appellant  entered  into  the 
contract. 

A  part  of  the  purchase  money  was  paid,  and  the  possession  of 
the  land  allowed  to  the  latter,  who  has  continued  to  occupy  the  land 
since  that  time,  and  is  now  in  the  possession.  In  the  case  of  Wood's 
Admr,,  v.  Nelson's  Admr.,  et  aL,  9  B.  Mon.  605,  it  was  held  that  the 
probate  of  a  will  before  a  competent  tribunal  was  such  a  judgment 
as  that  sales  made  by  the  executor  or  administrator  could  not  be  in- 
validated by  a  subsequent  reversal.  The  latter  clause  of  Sec.  14, 
Art.  2,  Chap.  37,  Rev.  Stat.,  cannot  be  made  to  apply  to  the  pres- 
ent case.  It  provides  "that  pending  a  suit  or  procedure  to  set  aside 
or  reject  a  will,  there  shall  be  no  power  to  sell  the  lands  or  slaves 
of  the  deceased  except  by  a  decree  of  court."  When  this  sale  was 
made  no  such  proceeding  was  pending ;  and  besides,  this  same  sec- 
tion provides  that  all  "lawful  acts  done  by  an  executor  or  adminis- 


2i6  Kentucky  Opinions. 

trator,  although  the  will  from  which  the  power  to  act  is  shown  is 
afterwards  declared  invalid,  shall  remain  valid  and  effectual,  and 
only  restricts  the  power  of  the  executor  or  administrator,  with  the 
will  annexed  in  case  where  an  action  to  reject  the  will  is  pend- 
ing." This  provision  of  the  statute,  instead  of  invalidating  the  acts 
of  the  administrator,  legalizes  all  his  lawful  acts  done  whilst  the 
judgment  of  probate  remained  unrez*ersed,  in  the  absence  of  any 
proceeding  intended  for  that  purpose. 

The  probate  of  the  will  gave  the  administrator,  with  the  will  an- 
nexed, the  power  to  carry  out  its  provisions,  and  there  can  be  no 
question  but  what  the  purchaser  in  this  case  could  compel  the  pres- 
ent ad;ministrator,  with  the  will  annexed,  to  comply  with  the  con- 
tract made  by  the  administrator  under  and  by  virtue  of  the  provi- 
sions of  the  first  will,  although  that  paper  had  been  declared  invalid. 

The  rejected  paper,  as  well  as  the  one  probated  as  the  true  will, 
authorized  a  sale  of  the  land,  and  although  the  mode  and  terms  of 
sale  were  not  identical,  still  the  direction  to  sell  was  absolute  and 
unconditional  in  each  paper ;  and  a  mere  departure  from  the  terms 
of  sale  by  the  executor  or  administrator  under  either  paper,  in  no 
manner  affecting  the  substantial  rights  of  those  interested  or  the  title 
of  the  purchaser,  will  not  authorize  the  chancellor  to  disregard  it. 
"The  testator's  directions,  with  regard  to  the  manner  of  the  sale, 
may  be  reasonably  varied  by  the  executor,  where  such  variance  is 
calculated  to  facilitate  or  expedite  the  accomplishment  of  the  pur- 
pose of  the  testator,  and  will  work  no  injury  to  the  estate  or  parties 
interested.  Richardson,  et  al,,  v.  Hpydon,  et  al.,  i8  B.  Mon.  242. 
The  act  of  February,  1866,  Myer's  Supp.  716,  authorized  this  estate 
to  be  ordered  into  the  hands  of  the  sheriff,  and  to  be  administered 
by  him ;  and  for  the  performance  of  such  a  duty  he  is  liable  on  his 
official  bond.  The  appellant,  although  he  alleges  that  the  boundary 
of  his  land  is  defective,  does  not  point  out  in  what  this  defect  is,  nor 
does  he  pretend  to  assert  that  he  is  not  in  possession  of  all  the  land 
sold  him. 

The  title  being  such  as  he  must  accept,  the  judgment  would  not  be 
disturbed  but  for  the  failure  to  prescribe  the  terms  of  sale,  etc.,  in 
the  judgment. 

The  judgment  directs  the  land,  or  so  much  as  may  be  necessary, 
to  be  sold  at  the  court  house  door  in  Owensboro,  after  advertising 
it  at  three  public  places  in  the  county,  one  of  which  is  to  be  posted  in 
the  vicinity  of  the  land.  The  credit  is  to  be  of  nine  and  eighteen 
months,  taking  bond  with  surety,  etc.    It  is  true  this  is  unlike  the 


E.  C.  &  H.  A.  Pfingst  v.  Thomas  E.  Wilson,  Ex'r.       217 

sale  of  attached  property,  where  the  law  requires  the  time  and  place 
of  sale  to  be  mentioned  in  the  judgment,  or  in  actions  to  foreclose 
a  mortgage  on  real  property,  where  the  sale  is  not  to  be  on  less  time 
than  three  or  more  than  twelve  months,  or  in  instalments  equiva- 
lent to  not  more  than  twelve  months'  credit  on  the  whole.  But  the 
chancellor,  in  rendering  the  judgment,  has  failed  to  prescribe  the 
time  that  the  property  should  be  advertised  for  sale,  and  the  com- 
missioner is  thus  left  to  exercise  his  own  discretion  in  this  regard. 
Such  a  discretion  the  chancellor  alone  can  exercise,  and  not  the  com- 
missioner. The  judgment  is  reversed  and  cause  remanded  with  di- 
rections to  enter  a  judgment  as  herein  indicated. 

Ray  &  Walker,  for  appellant. 

W,  S.  Darnaby,  /.  T.  Robinson,  A.  Duvall,  for  appellee. 


E.  C.  &  H.  A.  Pfingst  v.  Thomas  E.  Wilson,  Ex'r. 

Judicial  Sale— ESxceptions  to  Report  of  Sale— Bidders. 

Where  a  Judicial  sale  is  regular  in  every  way,  and  reported  to  the 
court,  it  is  no  ground  for  sustaining  exceptions  to  it  that  the  property 
did  not  bring  as  high  a  price  as  it  would  if  again  offered. 

Bidders. 

A  bidder  interested  in  the  sale  who  does  not  attend  or  bid  cannot 
complain  that  the  property  was  sold  at  too  low  a  price. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

November  11,  1874. 

Opinion  by  Judge  Peters: 

The  only  question  presented  on  this  appeal  is  whether  the  court 
below  erred  in  sustaining  appellee's  exceptions  to  the  report  of  the 
sale  made  by  the  marshal,  of  the  real  estate  described  in  the  plead- 
ings, and  opening  the  biddings  on  the  offer  of  appellee  to  advance 
$2,000  on  the  price  at  which  appellants  were  reported  to  have  pur- 
chased the  property. 

By  the  judgment  under  which  the  property  was  first  sold,  the 
marshal  was  ordered,  after  advertising  according  to  law  and  the 
rules  of  the  court,  to  sell  upon  credit  of  six,  twelve,  and  eighteen 
months,  so  much  of  the  real  property  of  the  said  "Louisville  Chemi- 
cal Works"  as  may  be  necessary  to  satisfy  the  judgment  in  favor  of 
said  Masonic  Savings  Bank. 


2i8  Kentucky  Opinions. 

There  is  no  complaint  that  there  was  any  irregularity  or  omission 
of  duty  on  the  part  of  the  marshal  in  making  the  sale ;  but  it  is  in- 
sisted that  there  was  a  misunderstanding  as  to  what  would  pass  by 
the  sale;  thajt  bidders  did  not  understand  what  would  pass  by  the 
terms  "real  property"  in  the  judgment.  To  sustain  the  exception 
to  said  report,  the  affidavits  of  Welman,  the  marshal,  and  of  W.  B. 
Hamilton  were  read.  The  first  named  stated  that  at  the  sale  and 
while  the  property  was  being  cried  off,  some  one,  he  thinks  W.  B. 
Hamilton,  inquired  whether  the  fixtures  would  go  to  the  purchaser, 
and  he  replied  he  did  not  know,  that  he  believed  the  property  would 
have  sold  for  more  money  than  it  did,  if  it  had  been  known  that 
the  fixtures  would  have  passed  to  the  purchaser.  He  also  stated 
that  he  believed  the  leaden  chamber  could  be  removed  without  in- 
jury to  the  building.  In  a  second  affidavit,  he  stated  that  he  then 
recollected  that  at  the  sale  W.  B.  Hamilton  asked  him  whether  the 
fixtures  in  the  building  would  be  sold  under  the  decree,  and  he  re- 
plied "I  am  ordered  to  sell  the  real  estate  and  improvements ;  it  is 
for  the  court  to  decide  what  tlie  improvements  are,  I  do  not  know." 

Hamilton  stated  that  he  was  present,  and  while  the  property  was 
being  cried  off  he  inquired  of  the  marshal,  as  he  wished  to  purchase, 
whether  the  fixtures  on  the  premises  would  go  to  the  purchaser 
under  the  sale,  and  the  marshal  replied  he  did  not  know.  He  also 
stated  that  if  he  had  purchased  the  premises,  he  would  have  par- 
ticularly desired  the  fixtures  thereon;  and  if  he  had  known  they 
would  have  passed,  he  would  have  bid  more  for  the  property  than 
it  brought;  and  that  the  doubt  whether  the  fixtures  would  pass  to 
him  prevented  him  from  bidding.  How  much  more  he  would  have 
bid  if  he  had  had  the  desired  information  he  does  not  state.  But 
appellee,  who  was  interested  in  the  sale,  and  for  whose  benefit  as  a 
creditor  of  the  Louisville  Chemical  Works,  the  property  was  in 
part  sold,  was  not  at  the  sale;  being  a  party  he  must  be  presumed 
to  have  known  what  the  judgment  was,  or  what  would  pass  by  the 
sale  under  it ;  if  he  did  not,  it  was  his  duty  to  have  applied  to  the 
court  for  an  explanation,  or  specific  directions  to  the  marshal  what 
he  was  to  sell ;  or  if  he  had  applied  to  a  legal  adviser  for  informa- 
tion, and  had  been  misinformed  or  deceived  by  his  counsel,  he  would 
have  been  in  a  more  favorable  attitude.  But  there  is  nothing  in 
the  record  to  show  that  he  used  any  efforts  to  inform  himself  on 
the  subject  about  which  he  now  complains  there  was  a  mistake  or 
misunderstanding,  until  after  the  sale  of  the  property. 

Appellee  might  have  learned  that  the  purchasers  probably  could, 


Aetna  Insurance  Co.  v.  Mary  A.  Bukns.  219 

or  would  make  a  profit  on  their  purchase.  There  was  no  misconduct 
or  irregularity  on  the  part  of  the  officer  making  the  sale,  nor  un- 
fairness or  fraud  practiced  by  appellants;  nor  is  the  difference  in 
the  price  bid  by  them  and  the  advanced  price  offered  by  appellee 
so  great,  considering  the  value  of  the  property,  as  to  impart  fraud. 
It  was  said  by  this  court  in  Stump  v.  Martin,  Mss.  Opinion:  "It 
would  be  trifling  with  the  stability  of  judicial  sales,  as  well  as  the 
rights  of  purchasers,  to  permit  those  who  were  present  at  the  sale, 
or  who  ought  to  have  been  there,  to  interfere  after  the  sale  was 
made,  and  open  the  bidding  for  no  other  reason  than  that  since  the 
sale  an  advanced  price  had  been  offered  for  the  property."  Hence 
this  court  has  always  been  unwilling  to  go  so  far  in  any  case  as  to 
say  that  the  chancellor  has  the  power  to  set  aside  a  sale  made  by 
his  commissioner  merely  because  he  could  make  a  better  bargain. 
In  this  case  no  reason  is  offered  for  setting  aside  the  sale  and  open- 
ing the  bidding  but  that  appellee  now  offers  to  pay  more  for  the 
property,  while  he  offers  no  excuse  for  being  absent  when  the  sale 
was  made,  and  permitting  the  loss  in  the  price  for  which  the  prop- 
erty should  have  sold. 

Wherefore  the  judgment  sustaining  the  exceptions  to  the  mar- 
shal's report,  and  setting  aside  the  sale  to  appellants  is  reversed  and 
the  cause  is  remanded  with  directions  to  confirm  the  report  of  sale 
to  them  for  further  proceedings  consistent  herewith. 

Gazlay,  Reineck,  for  appellants, 
George  Weisenger,  for  appellee. 


Aetna  Insurance  Co,  v,  Mary  A.  Burns. 

Insurance  Policy — ^Bill  of  Exceptions. 

Where  a  fire  insurance  policy  provides  that  the  company  shall  not 
be  liable  where  loss  occurs  when  the  building  insured  is  vacant,  the 
insured  cannot  collect  on  such  policy  when  the  building  was  vacant 
at  the  time  of  the  fire  and  for  weeks  prior  thereto. 

Bill  of  Bzceptionsi 

When  the  bill  of  exceptions  is  filed  and  no  exceptions  to  the  order 
of  filing  are  taken,  no  question  as  to  them  is  raised. 

APPEAL  PROM  CAMPBELL  CIRCUIT  COURT. 

November  13,  1874. 

Opinion  by  Judge  Pryor  : 

One  of  the  express  stipulations  of  the  policy  is  that  if  the  building 


220  Kentucky  Opinions. 

insured  becomes  unoccupied,  the  policy  is  suspended,  or  to  be  of  no 
force  and  effect  so  long  as  the  property  is  left  in  that  condition. 
The  building,  as  the  proof  shows,  was  unoccupied  at  the  time  it  was 
destroyed  by  fire,  and  had  been  for  several  weeks.  There  is  no  evi- 
dence showing  that  the  appellant  or  its  agent  had  any  notice  of  its 
having  been  vacated,  or  that  any  contract  was  entered  into  by  which 
the  appellee  had  the  right  to  abandon  it  and  still  claim  the  benefit 
of  the  insurance  in  case  of  loss ;  and  even  if  notice  had  been  given 
the  company  of  the  intention  of  the  appellee  to  leave  the  building, 
it  was  not  the  duty  of  the  company  to  furnish  a  tenant  or  to  protect 
the  building  from  the  torch  of  the  incendiary.  The  appellee  had 
the  right  to  abandon  her  house,  but  when  she  did  so  forfeited  all 
right  to  the  insurance  money,  if  destroyed  by  fire  (as  was  the  case 
here)  during  the  period  in  which  it  was  unoccupied.  The  appellee 
states  that  at  the  time  she  insured,  she  informed  the  agent  that  she 
would  leave  the  premises  temporarily;  but  at  the  same  time  ac- 
cepted a  policy  with  the  express  written  stipulation  that  if  destroyed 
when  not  tenanted,  the  company  was  not  liable.  It  was  the  duty  of 
the  appellee  to  have  furnished  a  tenant  or  occupant  when  she  left, 
and  particularly,  when  according  to  her  own  statement,  there  was 
danger  of  its  being  destroyed  or  burned  by  some  of  her  enemies.  A 
written  contract  between  parties  is  entitled  to  but  little  considera- 
tion, if  such  facts  as  are  sworn  to  by  the  appellee  and  her  sister  are 
held  sufficient  to  change  the  whole  character  of  the  written  under- 
taking. 

Under  the  proof  in  this  case  the  jury  should  have  been  told  that  if 

the  building  had  been  left  unoccupied  for weeks  by  the  appellee, 

and  during  that  period,  and  whilst  there  was  no  one  occupying  the 
premises,  it  was  destroyed  by  fire,  they  should  find  for  the  defend- 
ant. There  might  be  some  question  made  as  to  the  bill  of  evidence, 
but  for  the  order  of  the  3rd  of  July,  1873.  The  bill  of  evidence 
having  been  filed  on  that  day;  tlie  appellee,  by  counsel,  came  into 
court,  and  instead  of  excepting  to  the  order  filing  exceptions  if  he 
intended  to  take  advantage  of  it,  moved  the  court  to  correct  it,  and 
the  court  overruled  this  motion.  The  appellees  tendered  what  pur- 
ported to  be  another  bill  of  evidence,  that  is  not  signed  by  the 
judge;  and  although  made  part  of  this  record,  it  cannot  be  con- 
sidered or  treated  as  any  part  of  it.  The  judgment  of  the  court 
below  is  reversed  and  cause  remanded  with  direction  to  award  the 


John  W.  Zeigler  and  Wife  v.  John  W.  Means,  et  al.     221 

appellant  a  new  trial,  and  for  further  proceedings  consistent  with 
this  opinion. 

A.  D.  Smalley,  for  appellant. 

T,  W.  Webster,  A.  T.  Root,  for  appellee. 


John  W.  Zeigler  and  Wife  v.  John  W.  Means,  et  al. 

Judgment — Sale  of  Mortgaged  Property — Foreclosure. 

A  Judgment  that  plaintiffs  are  entitled  to  recover  is  not  a  judgment 
in  personam. 

Sale  of  Mortgaged  Property. 

Wbere  certain  parties  hold  liens  on  a  part  of  the  real  estate  coTered 
by  a  subsequent  mortgage,  which  is  foreclosed,  they  are  entitled  to 
Judgment  that  other  property  of  the  defendant  coTered  by  the  mort- 
gage be  first  sold  and  the  proceeds  applied  to  the  payment  of  the  mort- 
gage debt  before  the  sale  of  the  real  estate  upon  which  they  hold  liens. 

APPEAL  FROM  BOYD  CIRCUIT  COURT. 
November  13,  1874. 

Opinion  by  Judge  Cofer  : 

The  judgment  is  not  in  personam  against  Mrs.  Zeigler.  The 
language  is  not  that  the  parties  named  recover  of  her,  but  that  "they 
are  entitled  to  recover,"  etc.  No  execution  can  issue  on  such  a 
judgment,  and  she  is  not  prejudiced  by  it. 

The  mortgages  passed  the  whole  estate  of  Mrs.  Zeigler  in  the 
real  estate  described  in  them,  except  the  equity  of  redemption,  and 
she  thereby  waived  the  homestead  light,  if  she  had  any.  Wing 
Clark,  et  al.,  v.  Hayden,  Mss.  Opinion,  September,  1874. 

The  evidence  impeaching  the  validity  of  the  acknowledgment  of 
the  mortgage  to  Pine  is  wholly  insufficient  to  overturn  the  certificate 
of  the  clerk.  The  only  evidence  tending  to  prove  that  she  did  not 
acknowledge  the  mortgage  as  required  by  law  is  the  testimony  of 
Mrs.  Zeigler  herself,  and  in  this  she  is  flatly  contradicted  by  Hamp- 
ton, the  clerk  who  took  the  acknowledgment.  Besides  her  own 
testimony,  there  is  no  evidence  whatever  to  establish  the  alleged 
coercion  by  her  husband.  The  other  mortgages  are  not  attacked 
by  either  pleading  or  evidence. 

Brown  &  Brown  &  Rice  have  vendors'  liens  on  two  fractions  of 
lots  sold  by  them  respectively  to  Mrs.  Zeigler ;  and  these  lots  and 


222  Kentucky  Opinions. 

that  conveyed  to  her  by  HamptCMi,  seem  to  lie  adjoining  each  other^ 
and  together  make  up  the  site  upon  which  the  hotel  and  out  build- 
ings are  situated,  and  are  all  included  in  the  mortgages.  The  court 
directed  the  personal  property  to  be  sold  first,  and  the  proceeds 
thereof  to  be  applied  to  the  satisfaction  of  the  mortgage  debts,  and 
that  the  lots  conveyed  by  Brown  &  Rice  should  be  next  sold,  cm- 
so  much  of  them  as  should  be  sufficient  to  pay  the  amount  adjudged 
to  them,  and  the  balance  due  on  the  mortgage  debts  not  paid  by 
the  proceeds  of  the  personal  property.  The  lot  conveyed  by  Brown, 
or  so  much  of  it  as  shall  be  necessary  to  pay  the  purchase  mcMiey 
due  to  him,  is  ordered  to  be  sold ;  but  there  is  no  direction  to  sell 
the  whole  of  this  lot  if  the  personal  property  and  the  balance  of 
the  proceeds  of  the  lot  conveyed  by  Brown  &  Rice  fails  to  satisfy 
the  mortgage  debt,  but  such  residue  is  directed  to  be  raised  by  a 
sale  of  the  Hampton  lot,  or  so  much  of  it  as  may  be  necessary  foi 
that  purpose. 

The  lot  conveyed  by  Brown  and  Rice  to  Mrs.  Zeigler  lies  next  to 
the  lot  she  purchased  from  Hampton,  and  between  it  and  the  lot 
purchased  from  Brown.  The  whole  of  this  lot  is  directed  to  be  sold, 
but  only  so  much  of  the  lot  purchased  of  Brown  is  directed  to  be 
sold  as  will  pay  the  purchase  money  due  to  him.  If  less  than  the 
whole  should  pay  Brown  and  the  personal  property  and  the  Brown 
and  Rice  lot  do  not  sell  for  enough  to  pay  the  balance  due  upon  the 
judgment,  it  directs  the  balance  to  be  raised  by  selling  all  or  a  part  of 
the  Hampton  lot;  and  thus  the  defendants*  property  may  not  <Mily 
be  sacrificed,  but  any  part  of  it  not  necessary  to  pay  the  debts  may 
be  rendered  worthless  by  being  cut  into  small  parcels  separated  from 
each  other.  The  judgment  should  have  directed  that  the  Brown  lot 
be  sold  to  pay  first,  the  purchase  money  due  on  it,  and  secondly,  to 
pay  any  balance  due  on  the  mortgage  debts  not  paid  by  a  sale  of 
the  personalty.  If  this  proved  insufficient  to  pay  the  balance  of  the 
mortgage  debts,  then  the  Brown  &  Rice  lot  should  have  been  sold, 
or  so  much  of  it  as  would  satisfy  their  lien,  and  the  balance  still 
remaining  due  on  the  mortgages;  and  if  this  failed  to  satisfy  all, 
then  the  Hampton  lot,  or  so  much  of  it  as  should  be  necessary, 
should  be  sold. 

A  sale  made  even  in  this  manner  may  result  in  sacrificing  the 
appellants'  property,  but  this  cannot  be  avoided  except  by  the  con- 
sent of  Brown  for  himself  and  as  survivor  of  Rice,  to  have  a  lien 
only  on  a  part  of  the  property.  He  has  a  right  to  have  that  part  sold 
separately,  unless  the  other  creditors  will  consent  that  he  may  be 


J.  V.  Conn  v.  Wiluam  Anderson,  et  al.  223 

paid  in  full  account  of  the  sale  of  the  whole,  and  the  appellants  will 
consent  that  the  whole  may  be  sold  together,  and  any  excess  over 
the  debts  be  paid  to  them. 

For  the  error  indicated  the  judgment  is  reversed,  and  the  cause  re- 
manded for  a  judgment  in  conformity  to  this  opinion. 

Moore  &  Jones,  for  appellants, 
A,  Duvall,  for  appellees. 


J.  V.  Conn  v.  William  Anderson,  et  al. 

Bankruptcy— Jurisdiction— Parties— Pleading. 

A  creditor  has  the  right  to  sue  a  debtor  in  the  circuit  court  not- 
withstanding the  pendency  in  bankruptcy  against  him,  but  it  is  the 
duty  of  the  court  to  refuse  to  proceed  to  judgment  until  such  proceed- 
ing shall  terminate. 

Parties^— Pleading. 

If  the  bankrupt  court  refuses  the  debtor  a  discharge,  or  if  after  his 
discharge  he  fails  to  plead  It,  the  plaintiff  in  the  circuit  court  may 
take  personal  judgment  against  such  bankrupt. 

Jurisdiction. 

The  circuit  court  has  no  jurisdiction  over  the  trustee  in  bankruptcy; 
where  the  trustee  does  not  choose  to  assert  his  right  in  the  state  court 
he  may  have  the  action  dismissed  as  to  him. 

APPEAL  FROM  CARROLL  CIRCUIT  COURT. 

November  13,  1874. 

Opinion  by  Judge  Lindsay  : 

Conn  had  the  right  to  sue  Anderson  notwithstanding  the  pendency 
of  the  proceeding  in  bankruptcy.  But  as  the  petition  suggests  the 
existence  of  such  proceedings,  it  is  the  duty  of  the  court  to  refuse 
to  proceed  to  judgment  until  they  shall  terminate.  If  the  bankrupt 
court  refused  Anderson  a  discharge,  or  if,  after  obtaining  a  dis- 
charge, he  shall  fail  to  plead  it,  then  the  circuit  court  has  the  power 
to  render  a  personal  judgment  against  him.  The  circuit  court  also 
has  the  power  to  foreclose  the  mortgage.  It  is  true,  Conn  may  be 
enjoined  from  proceeding  with  his  suit,  by  the  bankrupt  court,  but 
even  after  that  is  done  the  jurisdiction  of  the  state  court  remains. 
The  bankrupt  court  may  operate  upon  Conn,  and  compel  him  to 
suspend  proceedings  or  to  dismiss  his  suit,  but  it  can  not  take  away 
from  the  circuit  court  its  jurisdiction  in  the  premises. 


224  Kentucky  Opinions. 

The  only  party  over  whom  the  circuit  court  has  no  jurisdiction  is 
Harrison,  the  assignee.  If  he  does  not  choose  to  assert  his  rights  in 
the  state  tribunal,  he  may  have  the  action  dismissed  as  to  him.  It 
was  proper  to  make  him  a  party,  and  thus  give  him  an  opportunity 
either  to  avail  himself  of  the  jurisdiction  of  the  circuit  court  to  ob- 
tain relief,  or  to  apply  to  the  bankrupt  court,  and  compel  Conn  to 
come  into  that  court  and  establish  his  debt,  and  enforce  his  mort- 
gage. 

The  joint  special  demurrer  as  to  the  jurisdiction  of  the  circuit 
court  should  have  been  overruled.  The  judgment  dismissing  ap- 
pellant's petition  is  reversed  and  the  cause  remanded  with  instruc- 
tion to  overrule  the  said  demurrer.  If  Harrison  so  desires,  the  court 
should  dismiss  the  action  as  to  him. 

Further  proceedings  will  be  had  conformable  to  this  opinion. 
Craddock,  Trabue,  W,  B.  Winslow,  for  appellant. 


PkESS  Printing  Co.  v.  J.  Soulb  Smith. 

Statute  of  Frauds. 

Where  a  person  is  indebted  on  promissory  notes  and  while  still  in- 
debted he  enters  into  a  contract  with  appellant  whereby  for  a  valuable 
consideration  appellant  undertook  to  pay  appeUee's  debt,  such  contract 
is  within  the  statute  of  frauds;  and  such  appellee  cannot  recover 
against  appellant  and  at  the  same  time  hold  the  evidence  of  indebted- 
ness of  the  debtor  whose  debt  appellant  agreed  to  pay. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

November  14,  1874. 

Opinion  by  Judge  Peters  : 

The  substance  of  the  allegations  of  the  petition  is  that  the  Ob- 
server and  Reporter  Printing  Company  being  indebted  to  appellee 
in  the  sum  named  in  the  petition,  and  for  which  he  holds  its  note; 
that  while  so  indebted,  the  Observer  and  Reporter  Printing  Com- 
pany-made a  contract  with  appellant,  whereby,  for  a  valuaWe  con- 
sideration, it  undertook  and  promised  to  pay  appellee's  debt  on  the 
first  named  company ;  and  that  subsequently  appellant  promised  him 
to  pay  his  debt  upon  the  consideration  aforesaid;  and  upon  that 
promise  appellee  sued.  To  the  petition  appellant  demurred,  and  its 
demurrer  having  been  overruled,  and  failing  to  answer,  further 


James  Cockrell  v.  A.  B.  Hainline's  Adm'x.  225 

judgment  was  rendered  against  it;  and  from  that  judgment  this  ap- 
peal is  prosecuted. 

It  is  not  alleged  that  upon  the  promise  of  appellant  to  pay  ap- 
pellee's debt,  he  discharged  the  Observer  and  Reporter  Printing 
Company  from  its  liability  to  pay  him.  He  still  retains  its  note, 
and  may  at  any  time  bring  suit  and  coerce  payment  from  the  Ob- 
server and  'Reporter  Printing  Company.  Nor  does  it  appear  that 
said  company  has  credited  appellant  by  the  amount  of  appellee's  debt. 
Taking,  therefore,  the  allegations  of  the  petition  as  true,  as  is  done 
for  the  purpose  of  the  demurrer,  the  debt  of  the  Observer  and  Re- 
porter Printing  Company  to  appellee  is  still  a  subsisting  and  an 
enforceable  debt.  Consequently  the  promise  to  pay  the  debt  by 
appellant  is  in  fact  a  promise  to  answer  for  the  debt  of  another,  and 
is  directly  within  the  inhibition  of  the  statute. 

Whether  or  not  the  petition  would  have  been  good  if  it  had  al- 
leged that  appellant  was  indebted  to  the  Observer  and  Reporter 
Printing  Company,  and  in  consideration  of  said  indebtedness  it  had 
promised  and  undertaken  to  pay  the  debt  of  the  latter  to  appellee, 
and  he  had  accepted  it  as  his  debt  and  released  his  debt  on  the  other 
company,  we  do  not  decide.  But  the  reasoning  of  this  court  in 
Jones  V.  Walker,  13  B.  Mon.  356,  and  in  Lieber,  Griffin  &  Co,  v. 
L^y,  3  Met.  292,  tends  strongly  to  that  conclusion. 

If  the  Observer  and  Reporter  Printing  Company  had  united  as 
a  plaintiff  with  appellee,  we  see  no  reason  why  the  suit  could  not 
have  been  prosecuted  in  their  names  for  the  benefit  of  appellee.  But 
we  cannot  avoid  the  conclusion  that  the  petition  is  insufficient,  and 
does  not  state  a  cause  of  action  against  appellant ;  and  the  demur- 
rer should  have  been  sustained.  Wherefore  the  judgment  is  re- 
versed, and  the  cause  remanded  for  further  proceedings  consistent 
herewith. 

T,  Waters,  for  appellant, 
John  Shelby,  for  appellee. 


James  Cockrell  v,  A.  B.  Hainline's  Adm'x. 

Evidence — ^Rea  Gestae. 

A  statement  of  a  party  as  to  why  he  is  borrowing  money  from  a 
witness  to  the  effect  that  he  desires  it  to  pay  a  note  Is  not  admissible 
in  a  suit  on  such  note  when  made  in  the  absence  of  the  plaintiff. 
Such  a  statement  is  not  a  part  of  the  res  gest®  for  it  was  not  made  at 
the  time  the  money  was  claimed  to  have  been  paid  and  the  payment 
was  the  transaction. 

16 


226  Kentucky  Opinions. 

APPEAL  FROM  MONTGOMERY  CIRCUIT  COURT. 

NoYember  16,  1874. 

Opinion  by  Judge  Peters: 

On  the  trial  of  this  cause  in  the  court  below,  the  appellee  intro- 
duced W.  A.  Thomas  as  a  witness,  who  proved  that  before  the  death 
of  Hainline,  the  witness  was  in  Mt.  Sterling  with  him,  and  he 
came  to  witness  with  a  $5  bill  in  his  hand,  and  witness  baned  him 
$70,  Hainline  then  telling  him  he  wanted  to  pay  Cockrell  $75.  It 
was  proved  that  Cockrell  was  not  present  when  the  money  was 
loaned ;  appellant  objected  to  the  statements  made  by  Hainline  to  the 
witness  in  his  absence ;  but  the  court  below  overruled  his  objection, 
admitted  the  evidence,  and  he  excepted. 

It  is  insisted  on  the  part  of  appellee  that  these  declarations  of 
Hainline  are  admissible  as  forming  a  part  of  the  res  gestce.  To 
make  them  such  they  must  have  been  contemporaneous  with  the 
main  fact  under  consideration,  and  so  connected  with  it  as  to  il- 
lustrate its  character.  The  declarations  must  have  been  made  at  the 
time  of  the  act  done,  and  so  harmonize  with  it  as  to  constitute  but 
one  transaction,  i  Greenleaf  on  Evidence,  Sec.  108.  The  declara- 
tions, as  proved  by  Thomas,  were  not  made  at  the  time  the  money 
was  paid;  the  payment  was  the  transaction.  After  the  declaration 
Hainline  and  the  witness  separated ;  they  went  into  different  houses. 
The  declarations  or  announcement  to  the  witness  of  the  purpose 
for  which  he  wanted  the  money  was  a  mere  abstract  statement,  dis- 
connected with  the  main  transaction,  which  may  or  may  not  have 
transpired  at  all,  and  unless  the  act  is  done  there  can  be  no  res 
gestx.    The  court  below  therefore  erred  in  admitting  the  evidence. 

Mrs.  Hainline,  the  widow  of  the  obligor  in  the  note,  was  ex- 
amined as  a  witness  for  appellee,  and  appellant  objected  to  her 
as  being  incompetent.  Sec.  24,  Chap.  37,  General  Statutes,  does 
not  disqualify  her  from  testifying  in  this  case.  We  think  she  and 
the  son  of  decedent  are  both  competent  witnesses.  As  to  her  state- 
ment about  the  open  letter  received  from  appellant,  she  said  it  was 
a  note  or  a  verbal  message,  and  did  not  say  which;  but  the  evi- 
dence was  not  objected  to,  and  the  question  of  its  competency  is 
not  before  us. 

No  objections  are  perceived  to  the  instructions.  But  for  the  error 
pointed  out,  we  feel  constrained  to  reverse  the  judgment  and  re- 


Uriah  Shinkle  v.  City  of  Covington.  227 

mand  the  cause  for  a  new  trial,  and  for  further  proceedings  con- 
sistent herewith. 

W.  H.  Holt,  for  appellant 
Apperson  &  Reid,  for  appellee. 


Uriah  Shinkle  v.  City  of  Covington. 

Damages— E^ddence— Instructions. 

In  a  suit  for  damages  against  a  city  it  is  not  error  for  the  court 
to  refuse  to  admit  evidence  to  show  that  the  city  council  was  notified 
that  hitchings  on  the  wharf  were  insufficient.  The  liability  of  the  city 
does  not  depend  upon  knowledge  of  the  city  officers  that  such  hitch- 
ings were  not  sufficient. 

Instructions. 

In  a  damage  suit  against  the  city  on  account  of  damages  sustained 
because  of  the  city's  failure  to  maintain  safe  hitchings  in  connecticm 
with  its  public  wharf,  it  is  error  for  the  court  to  charge  the  Jury  that 
it  was  the  duty  of  the  plaintifE  to  use  reasonable  care  such  as  prudent 
men  would  observe.  The  plaintifE  was  only  bound  to  use  ordinary  care 
in  securing  the  boat  to  the  shore  and  like  diligence  after  he  became 
aware  that  the  post  had  given  way  to  save  the  boat  from  sinking. 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

November  16,  1874. 

Opinion  by  Judge  Cofer  : 

We  perceive  no  material  error  in  the  rulings  of  the  court  in  re- 
fusing to  admit  the  excluded  statements  of  the  appellant's  witness, 
Hyde,  nor  in  refusing  to  allow  appellant  to  prove  by  Hunter  that 
he  had  notified  the  city  council  that  the  hitchings  on  the  wharf  were 
insufficient.  The  liability  of  the  city  does  not  depend  upon  the 
knowledge  of  the  city  authorities  that  the  hitchings  were  insufficient, 
but  upon  the  question  whether  they  were  in  fact  insufficient. 

Having  established  a  wharf,  and  invited  boats  to  land  at  it,  and 
charged  wharfage  for  the  use  of  the  wharf,  the  law  implies  an  un- 
dertaking on  the  part  of  the  city  to  provide  for  fastening  ordinarily 
and  reasonably  secure ;  and  the  liability  of  the  city  results  from  the 
implied  undertaking ;  and  as  want  of  knowledge  of  the  insufficiency 
of  the  fastenings  would  have  been  no  defense  to  the  action,  there 
was  no  necessity  to  prove  that  the  city  council  had  such  knowledge. 

The  second  instruction  asked  by  the  appellee  and  given  by  the 


228  Kentucky  Opinions. 

court  is  in  these  words:  "It  was  the  duty  of  the  pl^ntiff  to  use 
reasonable  care,  such  as  a  prudent  man  would  observe  in  the  man- 
agement of  his  affairs,  in  the  location  of  and  attaching  his  boat  to 
the  shore,  and  in  preventing  the  sinking  thereof;  and  if  the  jury 
believe  from  all  the  evidence  in  the  cause,  that  the  plaintiff's  boat 
was  sunk  by  any  neglect  or  omission  on  his  part,  of  sucli  reasonable 
care  as  aforesaid,  they  must  find  for  the  defendant."  By  this  in- 
struction appellant  was  required  to  use  such  care  as  a  prudent  man 
would  have  used,  and  the  jury  were  told  that  "if  the  boat  was  sunk 
by  any  neglect  or  omission  on  his  part,  of  such  reasonable  care  as 
aforesaid  (i.e.,  such  care  as  a  prudent  man  would  have  used),  they 
must  find  for  the  defendant."  The  appellant  was  only  bound  to  use 
ordinary  care  in  securing  the  boat  to  the  shore,  and  like  diligence 
after  he  became  aware  that  the  post  had  given  way,  to  save  the  boat 
from  sinking.  Ordinary  care  is  not  such  care  as  prudent  men  use, 
but  such  as  is  used  by  ordinary  men  or  men  of  common  or  ordinary 
discretion.  A  man  may  be  guilty  of  some  neglect  or  omission,  and 
yet  may  use  ordinary  care  and  diligence.  If  appellant  and  his  em- 
ployes in  charge  of  the  Isaac,  used  ordinary  care  and  diligence  in 
making  her  fast,  and  in  endeavoring  to  save  her  after  she  broke 
loose,  and  she  was  lost  notwithstanding,  the  appellee  is  liable. 

The  fourth  instruction  asked  by  the  city  should  not  have  been 
given  without  some  qualification.  The  evidence  tended  to  prove 
that  the  post  to  which  the  Isaac  was  fastened  was  the  only  one  on 
the  wharf  within  reach  of  the  place  where  appellant's  float  lay.  The 
city,  by  establishing  the  wharf,  invited  the  owners  of  boats  to  land 
at  it,  and  they  had  a  right  to  hitch  to  such  objects  as  they  found 
for  that  purpose;  and  even  if  appellant  planted' the  post,  and  knew 
it  was  insufficient,  he  had  a  right  to  hitch  to  it  and  look  to  the  city 
for  indemnity,  if  he  found  no  other  within  convenient  reach  of  the 
place  occupied  by  his  float.  The  fifth  instruction  should  also  have 
been  qualified  so  as  to  embrace  the  item  that  although  appellant  may 
have  known  the  post  was  insufficient,  yet  if  no  other  was  near 
enough  to  his  place  of  landing  to  be  reached  by  the  lines  or  chains 
ordinarily  used  on  such  craft  as  his,  he  had  a  right  to  hitch  to  such 
as  he  found  within  reach. 

The  instruction  given  by  the  court  in  lieu  of  the  first  asked  by 
appellee  was  misleading.  It  was  not  necessary  to  the  city's  lia- 
bility that  it  should,  by  its  wharf  master,  have  received  the  plain- 
tiff's boats.  If  they  were  landed  by  appellant  at  the  wharf,  and  made 
fast  to  such  hitchings  as  were  found  within  reach  of  the  place  of 


N.  C.  Marsh  v.  M.  H.  Breeze,  et  al.  229 

landing,  they  were  at  once  at  the  risk  of  the  city,  so  far  as  their 
safety  depended  on  the  sufficiency  of  the  fastenings  without  any  act 
oci  the  part  of  the  city  or  any  of  its  officials  or  servants. 

As  the  judgment  must  be  reversed  for  errors  in  instructing  the 
jury,  it  is  not  only  unnecessary,  but  would  be  improper,  that  we 
should  decide  whether  or  not  the  court  erred  in  refusing  to  grant  a 
new  trial  on  the  ground  that  the  verdict  was  palpably  against  the 
weight  of  the  evidence. 

For  the  errors  indicated  the  judgment  is  reversed,  and  the  cause 
is  remanded  for  a  new  trial  upon  principles  consistent  herewith. 

/.  r.  &  C.  H.  Tisk,  for  appellant. 
R.  A.  At  hey,  for  appellee. 


N.  C.  Marsh  v.  M.  H.  Breeze,  et  al. 

Partnership  Property — Dissolution — Creditors. 

A  partner  after  dissolution  of  the  firm  is  entitled  to  a  lien  on  the 
real  estate  of  the  partnership,  which  had  been  bought  and  improved  by 
the  partnership,  for  a  debt  due  him  from  his  late  partner,  and  this  lien 
is  superior  to  the  lien  of  creditors  whose  claims  arose  after  dissolution 
against  the  surviving  partner. 

APPEAL  FROM  BRACKEN  CIRCUIT  COURT. 

November  17,  1874. 

Opinion* BY  Judge  Peters: 

Appellee,  as  trustee  for  Henry  Ogden,  brought  this  suit,  alleging 
that  said  Ogden  and  appellant  were  partners  in  merchandising  in 
the  village  of  Milford,  Bracken  county,  and  while  so  engaged  they 
bought  of  William  P.  Ditty  a  certain  town  lot,  described  in  the  title 
bond  of  said  Ditty,  filed  as  a  part  of  the  petition ;  that  he  had  never 
conveyed  the  same  to  his  vendees,  although  all  the  purchase  money 
had  been  paid  therefor ;  that  after  their  purchase  Ogden  and  Marsh 
erected  valuable  improvements  on  said  lot,  consisting  of  a  store- 
house, saloon  and  tobacco  warehouse,  the  improvements  costing 
greatly  more  than  the  lot;  that  the  property  is  not  susceptible  of 
division ;  that  Ogden  had  conveyed  all  his  property  for  the  benefit  of 
his  creditors,  and  appellee  had  been  appointed  trustee,  and  he  prays 
for  a  sale  of  the  property,  etc. 

Steadman  and  others,  creditors  of  Ogden,  and  beneficiaries  under 


230  Kentucky  Opinions. 

his  deed  of  assignment,  by  their  petition  pray  to  be  made  co-plain- 
tiflfs  with  the  trustee  of  Ogden,  and  ask  to  amend  the  original  by 
stating  that  Ogden  and  Marsh  did  not  purchase  the  lot  described 
in  the  original  petition,  as  co-partners  in  the  course  of  trade  under 
their  partnership  name,  but  that  they  purchased  it,  and  now  hold  it 
as  against  Ogden,  and  that  the  same  is  not  subject  to  the  rules  regu- 
lating the  disposition  of  partnership  property,  and  withdraw  so 
much  of  their  original  petition  as  alleges  that  it  was  bought  and  held 
as  partnership  property. 

Marsh  in  his  answer  denies  that  the  property  was  not  partnership 
property.  He  avers  that  he  and  Ogden  entered  into  partnership 
September  i,  1866,  to  carry  on  the  business  of  merchandising,  and 
purchased  the  lot  and  erected  the  buildings  thereon  with  partner- 
ship funds,  the  houses  having  been  built  for  the  use  of  the  firm  and 
for  carrying  on  the  business  of  the  partnership;  that  on  March 
II,  1868,  they  dissolved  the  partnership  by  mutual  consent,  and  it 
was  agreed  by  them  that  Ogden  should  take  all  the  assets  of  the 
firm,  pay  all  its  debts,  and  give  up  to  him  the  amount  of  his  account 
with  the  firm,  being  $660,  and  pay  him  $3,265,  the  amount  of  capital 
put  into  the  firm  by  him,  and  interest  at  10  per  cent,  per  annum  till 
paid ;  that  Ogden  had  paid  him  $2,387  before  he  made  his  deed  of 
assignment,  and  his  trustee  had  paid  him  $31.25  since;  and  that  the 
balance  of  his  debt  and  interest  is  due  and  unpaid.  He  claims  a  lien 
on  the  lot  and  houses  for  his  debt,  and  asks  for  a  5ale  thereof,  and 
that  his  debt  be  first  paid,  and  denies  the  allegations  of  the  amended 
petition  of  Steadman,  etc.  The  court  below  adjudged  he  had  no 
lien,  that  he  stood  in  no  better  attitude  in  relation  to  this  property 
than  the  subsequent  creditors  of  Ogden  for  debts  created  since  the 
dissolution  of  their  partnership.  And  of  that  judgment  Marsh  com- 
plains. 

The  debts  of  the  late  firm  of  Marsh  and  Ogden  appear  all  to  have 
been  paid,  except  the  debt  due  to  Marsh ;  and  as  to  the  justice  of  it 
there  is  no  controversy.  The  houses  were  erected  and  the  lot  pur- 
chased for  the  purpose  of  carrying  on  the  business  of  the  firm,  and 
it  was  used  for  that  object  alone  as  long  as  the  firm  existed;  and 
when  it  dissolved,  Marsh,  by  parol  only,  agreed  that  Ogden  should 
have  the  partnership  eflFects  on  condition  that  he  would  pay  its  debts, 
the  debt  to  Marsh  included. 

Although  the  lot  had  been  paid  for.  Ditty,  the  vendor,  had  never 
conveyed  it  to  the  purchaser,  and  Marsh  for  the  firm  paid  the  entire 
price.     In  Galbraith  v,  Gedge  and  Brothers,  16  B.  Mon.  630,  this 


N.  C.  Marsh  v,  M.  H.  Breeze,  et  al.  231 

court  said;  "We  are  inclined  to  think,  that  the  real  property  held 
in  the  joint  names  of  the  firm  as  partnership  stock,  should  be  re- 
garded, at  law,  in  the  absence  of  any  agreement  or  undertaking  to 
the  contrary,  as  held  and  owned  by  them  as  tenants  in  common, 
subject  to  the  ordinary  incidents  of  tenancies  in  common.  But  that, 
in  equity,  it  should  be  considered  as  held  by  them  in  trust  as  partner- 
ship property,  subject  to  the  ordinary  rules  applicable  to  partnership 
personal  property — ^as  liable  to  the  satisfaction  of  the  claim  of  each 
partner  upon  the  others,  and  as  liable  to  the  satisfaction  of  the  debts 
of  the  partnership.  After  the  satisfaction  of  the  claims  of  the  sev- 
eral partners,  and  of  the  debts  of  the  concern,  the  residue  of  the 
real  estate  will  be  considered,  where  the  partners  have  not  impressed 
upon  it  the  character  of  personalty,  as  belonging  to  the  partners, 
both  in  equity  and  at  law,  as  tenants  in  common,  and  it  will  be  sub- 
ject to  division  and  several  appropriation  among  them." 

According  to  this  ruling  this  property,  which  belonged  to  the 
late  firm  of  Marsh  and  Ogden,  was  held  as  liable  to  the  satisfaction 
of  the  claim  of  Marsh,  and  should  be  applied  first  to  the  payment  of 
his  debt,  the  firm  owing  no  other  debt.  Nor  is  the  ruling  of  this  case 
in  conflict  with  Divine,  et  aL,  v.  Mitchum,  4  B.  Mon.  488. 

But  by  the  terms  of  the  judgment  the  whole  of  this  real  estate  is 
sold,  and  the  proceeds  are  applied  to  the  payment  of  Ogden's  debts, 
under  his  deed  of  assignment,  by  which  he  conveyed  only  the  one- 
half  of  said  real  estate  to  his  trustee  for  the  benefit  of  his  creditors. 
The  language  of  the  deed  is  that  he,  Ogden,  bargains  and  sells, 
aliens  and  conveys,  to  James  Whipp  the  following  described  real 
property,  viz.,  the  one  undivided  half  of  a  lot  in  Milford,  in  Bracken 
county,  Ky.,  purchased  from  W.  P.  Ditty,  etc.  The  creditors,  there- 
fore, under  the  deed,  if  no  debt  had  been  owing  to  Marsh,  could  only 
demand  the  sale  of  one-half  of  the  lot  and  improvements,  or  would 
be  entitled  to  the  one-half  only  of  the  proceeds.  In  any  view  of  the 
case,  therefore,  the  judgment  is  erroneous,  and  msust  be  reversed; 
and  the  cause  is  remanded  with  directions  to  satisfy  and  pay  to 
Marsh  the  amount  of  his  debt  out  of  the  proceeds  of  the  sale  of 
said  lot  and  improvements,  and  appropriate  the  residue  thereof 
to  the  other  creditors  of  Ogden. 

B.  G.  WUlis,  for  appellant. 
John  N.  Furber,  for  appellees. 


232  Kentucky  Opinions. 

Daniel  Monarch,  et  al.,  v.  John  P.  Young,  et  al. 

Counterclaim — Damages — Evidence— Measure  of  Damages. 

In  a  suit  to  collect  the  price  of  machinery  sold,  the  defendant  cannot 
recover  on  his  counterclaim  where  there  is  no  proof  showing  the 
amount  of  damages  sustained  by  reason  of  the  failure  of  plaintiff  to 
deliver  the  machinery  promptly. 

Measure  of  Damages. 

Remote  and  uncertain  damages  cannot  be  recovered  under  a  coun- 
terclaim filed  in  a  suit  for  the  purchase  money  of  machinery. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

November  18,  1874. 

Opinion  by  Judge  Pryor: 

If  the  peremptory  instructions  can  be  regarded  as  erroneous,  it 
could  only  have  affected  the  question  of  costs,  and  from  the  evi- 
dence in  the  case  we  are  inclined  to  concur  with  the  court  below 
that  no  cause  of  action  had  been  made  out  on  the  counterclaim. 
There  was  no  evidence  that  the  appellant  had  sustained  any  dam- 
ages, except  such  as  might  be  implied  by  the  failure  of  the  appellees 
to  the  cross-action,  to  furnish  the  machinery  in  the  time  required  by 
the  contract.  The  damages  on  this  branch  of  the  case,  if  any  were 
sustained,  are  too  remote  and  uncertain,  the  true  criterion  being  the 
difference  between  the  price  agreed  to  be  paid  by  the  contract  and 
what  appellant  was  compelled  to  pay  by  reason  of  the  failure  of 
appellees  to  comply. 

The  evidence  shows  that  appellants  paid  $185  more  in  whiskey 
for  the  machinery  not  furnished,  than  what  they  had  agreed  to  pay 
the  appellees  in  money.  Whether  the  whiskey  thus  furnished  was  of 
more  value  than  the  $1,000  does  not  appear ;  nor  is  it  shown  that  this 
extra  price  in  whiskey  was  the  result  of  the  failure  of  appellees  to 
furnish  the  machinery.  The  evidence  of  appellant  shows  that  those 
who  furnished  the  machinery  were,  under  the  original  contract,  to 
perform  part  of  the  work,  and  although  it  may  not  have  been  the 
particular  part  not  purchased,  still  the  only  damages  sustained  by 
appellant,  according  to  his  own  showing,  is  that  the  rent  of  the 
distillery  was  worth  so  much  per  month,  and  therefore  he  is  entitled 
to  recover  the  amount  of  rent  from  the  time  the  machinery  was  to  be 
furnished  until  it  was  actually  delivered.  The  statement  of  the 
proposition  is  of  itself  conclusive  against  the  right  of  recovery.  No 
direct  damages  have  been  shown.     What  expenses  were  incurred, 


Thohas  H.  Fox,  et  al.,  v.  Apperson  &  Reid.  233 

or  the  amount  paid  the  hands  out  of  employment,  or  that  were  not 
employed  at  other  work,  is  not  made  to  appear.  There  is  nothing 
in  appellants'  defense.  The  judgment  affirmed.  Judge  Cofer  not 
sitting. 

G.  IV.  Williams,  for  appellants. 
Sweeney  &  Stuart,  for  appellees. 


Thomas  H.  Fox,  et  al.,  v.  Apperson  &  Reid. 

Commissioner's  Sale  of  Real  Estate— Set-Off — Compensation  of  Com- 
missioner— Usury. 

Where  there  are  several  tracts  of  land  to  be  sold  by  a  commissioner 
the  court  should  order  them  sold  separately. 

Set-Off. 

A  debt  due  from  an  executor  cannot  be  pleaded  as  a  set-oft  against 
an  individual  debt. 

Compensation  of  Commissioner. 

Pursuant  to  Gen.  Stat.,  chap.  75,  S  14,  the  allowance  to  a  commis- 
sioner for  making  sales  of  land  cannot  exceed  ten  dollars  per  tract. 

Usury. 

Compounding  interest  at  the  lawful  rate,  once  a  year,  is  not  usuri- 
ous. 

APPEAL  FROM  MONTGOMERY  CIRCUIT  COURT. 

November  19,  1876. 

Opinion  by  Judge  Coper  : 

While  we  mig^t  not  be  inclined  to  reverse  because  the  judgement 
fails  to  direct  the  commissioner  to  sell  the  three  tracts  of  land  sep- 
arately we  regard  it  as  the  safer  and  better  practise  when  several 
tracts  are  to  be  sold  under  one  judgment,  to  direct  them  to  be  sold 
separately. 

Th€  second  paragraph  of  the  answer  contains  no  statement  of 
facts  to  show  that  usury  had  been  intentionally  charged  on  Ap- 
person's  debt.  Instead  of  drawing  his  own  conclusion,  the  pleader 
should  have  stated  the  facts  that  the  court  might  be  able  to  judge 
the  correctness  of  the  deduction  made  from  them. 

The  third  paragraph  was  insufficient  as  a  set-off  in  two  respects, 
(i)  The  demand  attempted  to  be  set  up  is  a  debt  due  from  the  ap- 
pellee, Apperson,  as  executor  of  his  father,  and  was  therefore  not 
available  as  a  set-off  against  a  debt  due  to  him  individually.     No 


234  Kentucky  Opinions. 

reason  is  given  why  the  demand  attempted  to  be  pleaded  as  a  set- 
off might  not  be  enforced  against  the  appellee  in  his  official  char- 
acter; and  in  the  absence  of  some  averment,  such  as  insolvency  or 
non-residence,  showing  that  the  demand  could  not  be  made  avail- 
able in  a  direct  action  against  the  executor,  it  cannot  be  pleaded  in 
a  suit  for  the  recovery  of  a  debt  due  to  him  in  his  own  right.  The 
averment  that  the  executor  had  promised  to  pay  did  not  alter  the 
case.  Such  a  promise,  unless  in  writing,  is  not  enforcible.  It  was 
not  alleged  to  be  in  writing,  and  must  therefore  be  taken  to  have 
been  in  parol. 

(2)  But,  again,  it  was  not  an  available  set-off  because  any  right 
of  action  which  might  exist  is  a  joint  right  in  those  who,  according  to 
the  averments  of  the  answer,  were  the  owners  of  the  land  alleged  to 
have  been  rented  and  sold  by  the  elder  Apperson. 

Compounding  interest  at  the  lawful  rate  not  oftener  than  once 
a  year  is  not  usurious ;  but  it  is  alleged  in  the  second  amended  an- 
swer that  interest  was  compounded  annually  at  the  rate  of  10  per 
cent,  per  annum  from  January  i,  1870,  until  January  i,  1874,  on 
the  $180  note  which  it  is  alleged  was  included  in  the  note  sued  on. 
The  law  making  10  per  cent,  lawful)  interest  went  into  eflFect  on 
September  i,  1871 ;  it  therefore  appears  that  the  note  contains  usury 
to  the  amount  of  4  per  cent,  per  annum  on  $180  from  January  i, 
1870,  to  September  i,  1871. 

The  court  erred  in  making  an  allowance  of  $50  to  the  commis- 
sioner for  making  the  sale.  *Sec.  14,  Chap.  75,  Gen.  Stat.,  provides 
that  the  allowance  to  a  commissioner  for  making  sales  of  land  shall 
in  no  case  exceed  $10  per  tract. 

This  conclusion  renders  it  unnecessary  to  decide  whether  the 
judgment  was  premature,  or  whether  there  was  a  personal  judg- 
ment against  Mrs.  Fox. 

For  the  errors  indicated  the  judgment  is  reversed,  and  the  cause 
is  remanded  for  further  proceedings  not  inconsistent  herewith. 

Thomas  Turner,  A,  J.  James,  for  appellants. 
A,  Duvall,  Apperson  &  Reid,  for  appellees. 


JoANA  Melton,  et  al.,  v.  William  M.  Caigill,  et  al. 

Trustee— Title  in  Trustee— Equity. 

Where  a  trustee  has  been  Invested  with  the  legal  title  to  real  estate 
the  beneficiaries  of  the  trust  cannot  maintain  an  action  of  ejectment 
to  recover  the  land.  They  must  resort  to  a  court  of  equity  to  enforce 
their  claims. 


JoANA  Melton,  et  al.,  v.  William  M.  Caigill,  et  al.      235 

Equity. 

Where  purchasers  of  real  estate,  believing  their  title  secure,  have 
placed  valuable  improvements  thereon,  it  would  be  inequitable  to  per- 
mit those  claiming  title  to  secure  such  improvements. 

APPEAL  FROM  GRAVES  CIRCUIT  COURT. 
November  19,  1874. 

Opinion  by  Judge  Pryor  : 

The  trustee,  Caigill,  having  been  invested  with  the  legal  title, 
we  cannot  well  see  how  the  beneficiaries  of  the  trust  can  maintain 
the  acticMi  of  ejectment  for  the  recovery  of  the  land  or  lot  in  contro- 
versy. In  fact,  they  have  no  legal  remedy,  and  must  resort  to  a  court 
of  equity  to  enforce  their  claim.  When  coming  into  a  court  of 
equity  asking  relief,  they  must  be  required  to  do  equity,  and  ought 
not  to  ask  the  aid  of  the  chancellor  in  giving  them  several  thousand 
dollars  expended  by  others  in  improving  their  property,  worth  not 
exceeding  $350.  The  improvements  made  upon  the  lot  were  placed 
upon  it  in  good  faith,  and  with  the  sanction  of  a  court  of  equity. 
The  purchasers  believed  they  had  acquired  a  perfect  title,  not  only 
by  reason  of  the  action  of  the  trustee  who  was  invested  with  the 
legal  title,  but  by  the  judgment  of  the  court  confirming  his  acts  in 
the  premises.  A  fair  price  was  paid  for  the  lot  and  there  was  no 
proof  of  fraud  or  unfair  dealing  connected  with  the  transaction. 
The  purchasers  have  made  lasting  and  valuable  improvements  in 
buildings  erected  on  the  ground  purchased,  of  the  value  of  several 
thousand  dollars,  when  the  lot  itself  was  not  worth  exceeding  $350. 

Under  such  a  state  of  facts  it  would  be  unconscientious,  as  well 
as  inequitable,  to  pve  the  appellants  these  improvements  or  their 
interest  therein  without  any  compensation  to  the  appellees.  A  court 
of  law  has  dosed  its  doors  to  any  such  relief,  and  they  now  make 
this  unjust  and  unconscientious  demand  of  a  court  of  equity.  The 
chancellor  will  not  listen  to  such  an  appeal.  The  appellants  must 
either  pay  the  appellee  the  enhanced  value  of  this  lot  by  reason  of 
the  improvements  made  upon  it,  or  take  the  money  in  the  hands  of 
the  trustee  paid  on  the  purchase  confirmed  by  the  judgment.  They 
should  be  required  to  elect,  and  if  they  elect  to  take  the  money  in 
the  hands  of  the  trustee,  their  remedy  is  against  him  and  his  sureties. 
The  proof  shows  the  sureties  are  amply  able  to  pay  the  debt.  If 
they  elect  to  pay  the  enhanced  value  of  the  lot  by  reason  of  the  im- 
provements to  the  extent  of  their  interest,  they  will  be  allowed  to 
do  so,  and  when  the  money  is  paid  a  reconveyance  should  be  or- 


236  Kentucky  Opinions. 

dered.  The  court  will  fix  the  value  on  the  basis  that  Mrs.  Melton 
has  a  life  estate  in  the  lot.  If  the  appellees  elect  to  take  the  lot,  the 
purchasers  will  be  entitled  to  the  purchase  money  in  the  hands  of 
the  trustee. 

The  judgment  of  the  court  below  is  reversed,  and  cause  remanded 
for  further  proceedings  consistent  with  this  opinion. 

R,  K.  Williams,  for  appellants. 
L,  Anderson,  for  appellees. 


Martin  McFall  v.  Commonwealth  of  Kentucky. 

Criminal  Law— Insanity— Instruction. 

Insanity  of  a  defendant  at  the  time  of  the  commission  of  a  crime  Is 
a  complete  defense. 

Where  there  Is  evidence  produced  In  a  criminal  cause  that  the  de- 
fendant was  at  the  time  of  the  offense  on  the  verge  of  delirium  tre- 
mens, and  where  instructions  are  asked,  the  court  should  Instruct 
the  jury  that  if  they  believed  from  the  evidence  that  the  defendant  at 
the  time  of  the  commission  of  the  crime,  was  not  sane,  and  could  not, 
because  of  mental  incapacity,  know  right  from  wrong,  whether  that 
incapacity  was  caused  by  drink  or  not,  they  should  acquit 

APPEAL  FROM  WOODFORD  CIRCUIT  COURT. 

December  8,  1874. 

Opinion  by  Judge  Lindsay  : 

McFall  was  indicted  for  a  breach  of  the  peace.  The  proof  dis- 
closed an  aggravated  assault  upon  the  person  of  his  wife. 

It  was  proved  by  a  practicing  physician  that  a  day  or  two  after  the 
assault,  McFall  was  apparently  on  the  verge  of  delirium  tremens, 
and  that  he  was  very  much  frightened.  In  the  opinion  of  the  wit- 
ness he  was  not  then  responsible  for  his  acts.  Another  witness 
proves  that  he  saw  him  the  morning  after  the  assault,  and  that  he 
seemed  to  be  dodging,  and  frightened.  It  is  further  proved  that  on 
the  same  morning,  McFall  was  found  in  a  dark  rocmi,  and  that  he 
"looked  cowed  and  frightened,  and  was  dodging." 

Upon  this  proof,  the  defendant  asked  that  the  jury  be  instructed 
that  if  they  should  believe  that  "the  defendant,  at  the  time  that  it 
is  alleged  he  assaulted  his  wife,  was  not  sane,  and  could  not^  be- 
cause of  mental  incapacity,  know  right  from  wrong,  whether  that 
incapacity  was  caused  by  drink  or  not,  they  ought  to  acquit."    The 


William  McGlashen  v.  Commonwealth.  237 

court  refused  so  to  instruct.  In  so  refusing  it  erred.  We  know  of 
no  instance  in  which  it  has  been  held  that  a  person  who  is  so  far 
insane  as  not  to  know  right  from  wrong,  is  criminally  responsible 
for  his  acts.  The  cause  of  the  want  of  mental  capacity  is  imma- 
terial. The  temporary  aberration  of  the  intellect,  caused  by  drunken- 
ness, does  not  excuse;  but  when  from  excessive  indulgence,  the 
drunkard  becomes  a  lunatic,  incapable  of  distinguishing  between 
right  and  wrong,  he  must  be  treated  as  other  insane  persons. 

It  is  not  for  this  court  to  determine  as  to  the  sufficiency  of  the 
proof  to  sustain  the  plea  of  insanity.  There  was  some  evidence 
tending  to  sustain  it,  and  therefore  the  defendant  should  have  had 
the  benefit  of  the  instruction  asked. 

For  the  error  indicated  the  judgment  is  reversed  and  the  cause  re- 
manded for  a  new  trial,  upon  principles  consistent  with  this  opinion. 

Edward  Wallace,  for  appellant, 
John  Rodman,  for  appellee. 


William  McGlashen  v.  Commonwealth. 

Criminal  Law — Sale  of  Whisky  by  a  Physician. 

A  defendant  cannot  claim  exemption  from  the  penalty  denounced 
by  law  against  selling  intoxicating  liquors  because  he  is  a  physician. 

Sale  of  Whisky  by  Physician. 

A  physician  may  make  a  sale  of  intoxicating  liquors,  if  made  in 
good  faith  and  for  medical  purposes  only.  Such  physician  cannot 
legally  sell  for  any  other  purpose. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

December  8,  1874. 

Opinion  by  Judge  Lindsay  : 

The  grounds  relied  on  for  a  new  trial  were:  ist,  that  the  court 
misinstructed  the  jury;  and  2d,  that  the  verdict  was  against  the 
evidence.  With  the  last  ground  this  court  has  nothing  to  do.  Ap- 
pellant claims  exemption  from  the  penalty  denounced  by  law  against 
retailing  intoxicating  liquors  in  Bullitt  county,  because  he  was  a 
practicing  physician. 

The  court  instructed  the  jury  that  if  such  was  the  case,  and  the 
whiskey  was  sold  in  good  faith  and  for  medical  purposes  only,  they 
should  acquit.  This  was  all  appellant  could  ask ;  to  allow  physicians 


238  Kentucky  Opinions. 

to  sell  for  other  than  medical  purposes  would  be  to  disregard  tlie 
plain  provisions  of  the  law. 
Judgment  aMrnted. 

R.  J.  Meyler,  for  appellant. 
John  Rodman,  for  appellee. 


Mary  Long,  Ex'x,  v.  Wellington  Harlan,  et  al. 

Promissory  Note— Defense — Gift. 

Wbere  the  payee  of  a  note  retains  it  until  her  death  and  it  then 
passed  to  her  executrix,  evidence  that  the  testatrix  said  at  one  time 
that  aU  she  wanted  was  the  interest  during  her  life  and  after  her  death 
it  (the  note)  was  to  be  Mrs.  Easthman's,  is  not  sufficient  to  sustain  a 
claim  of  Mrs.  Easthman  to  ownership  of  the  note. 

appeal  from  BOYLE  CIRCUIT  COURT. 

December  9,  1874. 

Opinion  by  Judge  Pryor  : 

The  note  of  Harlan  and  Easthman  is  made  payable  in  one  year 
from  its  date  with  interest.  It  contains  no  stipulation  by  which  the 
note  is  to  be  surrendered,  or  any  evidence  upon  its  face  indicating 
an  intention  to  give  the  note  or  its  proceeds  to  the  wife  of  one  of 
the  obligors.  The  promise,  if  made,  to  give  the  money  could  not 
be  enforced,  and  the  statements  contained  in  the  answer  present  no 
defense  to  the  action.  The  testatrix  retained  the  possession  of  the 
note  until  her  death,  and  it  then  passed  to  the  appellant  as  her 
executrix.  The  evidence  of  her  intention  to  make  the  gift,  nega- 
tives any  other  consideration  for  the  promise  than  the  relation  exist- 
ing between  testatrix  and  the  wife  of  Easthman.  There  was  no 
delivery  of  the  note  or  its  proceeds  to  any  one  for  the  use  of  the 
party  asserting  this  right  against  the  executrix. 

The  demurrer  should  have  been  sustained  to  the  answer;  but  as 
there  was  no  exception  made  to  the  judgment  overruling  it,  it  be- 
comes necessary  to  look  to  the  evidence,  and  in  that  there  is  nothing 
to  be  found  upon  which  this  alleged  gift  can  be  maintained.  The 
only  witness  for  the  defense  says  that  the  testatrix  said  all  she 
wanted  was  the  interest  during  her  life,  and  after  her  death  it  was 
to  be  Mrs.  Easthman's.  This  only  evidences  an  intention  to  give, 
and  the  evidence  for  the  appellant  indicates  clearly  that  if  she  ever 


J.  H.  DoDDS  V.  Bank  of  Louisville.  239 

intended  to  make  such  a  disposition  of  the  note  it  was  afterwards 
abandoned. 

The  judgment  of  the  court  below  is  reversed,  and  cause  re- 
manded with  directions  to  award  the  appellant  a  new  trial,  and  for 
further  proceedings  consistent  with  the  opinion. 

Durham  &  Jacobs,  for  appellant. 


J.  H.  DoDDs  V.  Bank  of  Louisville. 

Fraudulent  Conveyance  of  Real  Estate. 

Where  an  insolvent  debtor,  after  eleven  o'clock  at  night,  conveys  his 
real  estate  to  grantee  who  knows  he  is  in  failing  circumatances,  and 
no  cash  is  paid  for  such  conveyance,  but  grantor  accepts  three  notes, 
the  first  of  which  does  not  mature  for  three  years,  such  conveyance  is 
in  fraud  of  creditors  and  will  be  set  aside. 

APPEAL  FROM  GRAVES  CIRCUIT  COURT. 

December  9,  1874. 

Opinion  by  Judge  Lindsay  : 

Cook:  conveyed  to  Dodd  on  the  9th  day  of  August,  i860.  The 
deed  was  proved  and  lodged  for  record  between  the  hours  of  11 
and  12  o'clock  p.  m.,  August  15,  i860.  The  consideration  for  the 
sale  and  conveyance  was  $4,050.    No  part  thereof  was  paid  in  cash. 

The  first  payment,  $1,000,  was  not  to  be  paid  until  December  25, 

1863.  The  second  payment,  $1,000,  was  to  be  made  December  25, 

1864.  and  the  third  and  last  payment,  $2,050,  on  December  25, 

1865.  Two  days  after  the  conveyance  to  Dodd,  Cook  openly  an- 
nounced his  failure  in  business  and  made  an  assignment  to  McClure 
for  the  benefit  of  his  creditors. 

The  conveyance  to  Dodd  was  assailed  upon  the  ground  that  it 
was  fraudulent,  and  made  and  accepted  with  the  intention  to  hinder 
and  delay  Cook's  creditors  in  the  collection  of  their  debts.  That 
such  was  Cook's  intention  does  not  admit  of  doubt.  That  the  effect 
of  the  sale,  even  if  the  notes  had  been  turned  over  to  Cook's  credit- 
ors, would  have  been  to  delay  them  in  realizing  the  value  of  the 
land,  from  three  to  five  years,  is  equally  clear. 

If  Dodd  was  aware  of  Cook's  intentions,  and  participated  in  his 
plans  with  such  knowledge,  then  he  can  not  hold  the  land,  and  the 
judgment  of  the  chancellor  is  proper.  In  his  answer  of  November 
13^  1863,  Dodd  says  that  at  the  time  of  the  transaction  he  knew 


240  Kentucky  Opinions. 

that  Cook  and  Nance  were  somewhat  involved  in  debt,  and  that 
Cook  informed  him  that  he  would  have  to  sell  the  land  to  meet  his 
debts.  With  this  knowledge  he  purchased,  without  paying  one  cent 
in  cash,  and  upon  such  credits  as  practically  put  it  out  of  the  power 
of  Cook  to  use  the  notes  given,  in  the  payments  of  the  debts  by 
which  he  was  being  pressed. 

The  explanation  of  Dodd,  and  the  conduct  of  himself  and  Cook 
are  utterly  irreconcilable.  It  can  not  be  that  the  land  was  sold  and 
purchased  to  enable  Cook  to  pay  debts.  The  effect  of  the  sale  and 
purchase  was  practically  to  put  it  out  of  his  power  to  make  either  the 
land  or  the  land  notes  available  for  any  such  purpose.  Con- 
sidering the  knowledge  of  Dodd  as  to  Cook's  embarrassments,  and 
the  transaction  in  which  he  participated,  the  conclusion  can  not  be 
escaped,  that  the  parties  intended  to  do  that  which  necessarily  fol- 
lowed the  sale,  in  case  it  is  allowed  to  stand,  i.  e.,  to  hinder  and  de- 
lay the  creditors  of  Cook,  in  the  collection  of  their  debts. 

This  was  a  legal  fraud,  and  the  chancellor  properly  relieved 
against  it.  The  claims  set  up  by  Dodd  in  the  later  pleadings  filed 
by  him  were  evidently  resurrected  for  the  purpose  of  the  litigation. 
If  Dodd  had  regarded  Cook  as  being  indebted  to  him  in  August, 
i860,  he  would  not  have  executed  his  notes  for  the  purchase  price 
of  the  land.  There  is  no  reason  given  why  the  land  was  not  taken 
in  satisfaction,  or  in  part  satisfaction  of  the  old  partnership  indebted- 
ness, if,  as  matter  of  fact,  Dodd  intended  to  assert  it  as  a  claim 
against  Cook.  Further  than  this,  he  would  not  have  paid  off  the 
two  notes  first  due  to  the  trustees  of  McClure ;  and  more  than  all 
this,  he  would  not  have  waited  until  November,  1865,  five  years 
after  the  litigation  began,  to  set  up  his  claim. 

Upon  the  whole  case,  the  judgment  is  right,  and  it  must  be 
aMrmed. 

A.  W.  Kingman,  for  appellant, 
R.  K,  Williams,  for  appellee. 


A.  R.  Green  v,  Wesley  Whalley. 

Women— Contracts  to  Pay  Money  Void— Description  in  Judg- 
ment. 

A  contract  of  a  married  woman  to  pay  money  is  void,  and  wliile 
she  may,  after  she  ceases  to  be  a  married  woman,  consent  that  her 
real  estate  be  ordered  sold  to  pay  said  debts,  where  she  does  not  then 
make  a  new  promise  to  pay  such  debts  no  personal  judgment  can  be 
taken  against  her. 


A.  R.  Green  v.  Wesley  Whalley.  241 

Descriptioii  in  Judgment. 

A  judgment  ordering  tlie  sale  of  real  estate  must  contain  such  a  de- 
scription of  the  land  as  will  enable  the  commissioner  and  purchasers 
to  find  it  without  reference  to  papers  and  exhibits  on  file  in  the  case. 

APPEAL  FROM  BATH  CIRCUIT  COURT. 

December  10,  1874. 

Opinion  by  Judge  Lindsay  : 

The  promises  made  by  appellant  whilst  a  married  woman  were 
not  only  not  enforceable,  but  when  treated  as  contracts  to  pay 
money,  were  absolutely  void.  She  may  have  recognized,  or,  in  fact, 
ratified  said  contracts  after  she  became  discovert,  and  still  not  be 
bound  by  them.  To  make  them  personally  binding  upon  her,  it 
was  necessary  that  she  should,  after  becoming  discovert,  enter  into 
new  contracts,  and  distinctly  and  unequivocally  agree  to  pay  the 
sums  of  money  theretofore  loaned,  paid,  or  advanced  at  her  instance 
and  request.  By  her  answer  of  September  20,  1873,  appellant  ad- 
mits the  execution  (whilst  a  married  woman)  of  the  note  for 
$1,024.80,  and  the  payment  by  appellee  to  Armstrong,  at  her  re- 
quest, of  $413.49.  She  also  admits  the  execution  of  the  note  for 
$259.  Her  answer  concludes  in  these  words :  "She  hereby  consents 
that  a  judgment  may  be  rendered  to  sell  the  said  lands  to  pay  the 
said  debts  of  plaintiff,  that  said  debts  are  just,  and  she  is  willing 
that  her  said  lands  may  be  sold,  or  enough  thereof  to  satisfy  the 
plaintiff  by  said  debts." 

It  is  evident  from  this  language,  that  appellant  merely  intended 
to  consent  that  the  lands  referred  to  should  be  subjected  to  the 
payment  of  debts  recognized  by  her  to  be  just,  although  not  col- 
lectible from  her.  Whilst  recognizing  the  justice  of  appellee's 
claims,  she  not  only  does  not,  in  terms,  promise  to  pay  them,  but 
does  not  intimate  that  she  is  willing  to  be  personally  bound  for 
their  payment.  It  was,  therefore,  error  to  render  a  personal  judg- 
ment against  her. 

The  judgment  decreeing  a  sale  of  the  land  is  defective  in  fail- 
ing properly  to  describe  it.  It  is  described  as  a  tract  of  land  levied 
upon  by  the  sheriff  of  Rowan  county,  lying  in  said  county  of  Rowan, 
and  which  is  also  described  fully  by|  the  deed  of  conveyance  filed 
by  the  defendant,  A.  R.  Green. 

This  court  has  repeatedly  held  that  a  judgment  directing  the  sale 
of  real  property,  should  so  describe  it  as  to  enable  the  commissioner 

16 


242  Kentucky  Opinions. 

to  sell,  and  purchasers  to  find  and  identify  it,  without  reference  to 
papers  and  exhibits  on  file  in  the  cause. 

Judgment  reversed,  and  the  cause  remanded  for  further  proceed- 
ings not  inconsistent  with  this  opinion. 

Reid  &  Stone,  J.  &  J.  W.  Rodman,  for  appellant. 
Nesbitt  &  Gudgal,  for  appellee. 


J.  B.  Owsley  v.  Reuben  Williams. 

Contracts — Parties  to  Action— Pleadings. 

Where  a  partnership  is  indebted  on  a  note,  and  dissolves,  and  one  of 
the  partners  and  another  executed  a  written  contract  with  the  with- 
drawing partner  that  they  would  pay  the  debts  of  the  partnership  to 
the  amount  of  $4,107.41,  a  creditor  of  such  partnership  cannot  sue  on 
the  contract  without  making  the  retiring  partner  a  party. 

Where  a  dissolving  partnership  is  indebted  to  A  on  a  note  and  at 
such  dissolution  B,  one  of  the  partners,  and  C  enter  into  a  contract 
with  the  retiring  partner  to  pay  the  debts  of  the  firm  up  to  |4,107.41, 
before  A  can  recover  on  such  contract  he  must  in  a  court  of  equity 
make  all  of  such  persons  defendants  and  may,  by  showing  the  insol- 
vency of  the  retiring  partner,  be  subrogated  to  his  rights  and  recover 
the  amount  due  him,  but  in  such  a  proceeding  he  must  aver  and  show 
that  B  and  C  are  still  bound  to  the  retiring  partner  under  their  con- 
tract 

APPEAL  PROM  LINCOLN  CIRCUIT  COURT. 

December  10,  1874. 

Opinion  by  Judge  Lindsay  : 

The  petition  disclosed  these  facts :  Owsley  &  Rochester,  partners 
and  merchants,  were  indebted  to  Williams  $500,  evidenced  by  their 
promissory  note  due  February  27,  and  bearing  10  per  cent,  interest. 

The  partnership  was  dissolved,  and  Owsley,  with  the  appellant, 
J.  B.  Owsley,  executed  to  Rochester  this  covenant : 

"We  agree  to  pay  the  indebtedness  of  Owsley  &  Rochester  to  the 
amount  of  $4,107.41;  less  $180.32  on  debt  below  to  Fletchemier." 
A  list  of  debts,  including  that  of  Williams,  is  incorporated  in  the 
covenant.  Williams  sues  on  covenant.  He  does  not  make  the  payors 
of  the  note  or  either  of  them  parties.  He  avers  that  they  are  both 
insolvent,  and  alleges  that  the  Owsleys  have  not  kept  and  performed 
their  said  covenant,  because  they  have  failed  and  neglected  to  pay 
to  him  the  amount  of  his  debt ;  but  he  does  not  state  that  they  have 


Commonwealth,  et  al.,  v.  M.  N.  DePane.  243 

not  in  some  other  way  paid  and  satisfied  the  full  amount  of 
$4,107.41  they  undertook  to  pay  for  the  firm  of  Owsley  &  Rochester. 

The  petition  ignores  the  fact  that  the  covenant  of  the  Owsleys 
was  to  and  with  Rochester.  Williams  is  not  a  party  to  it.  There 
is  no  privity  between  him  and  the  Owsleys.  They  were  indebted 
to  Rochester.  They  agreed  to  satisfy  their  indebtedness  to  him, 
by  paying  certain  debts  for  which  he  was  bound,  including  the  debt 
of  Williams.  The  contract  was  not  made  for  the  benefit  of  Will- 
iams. He  still  holds  the  note  of  Rochester,  and  still  looks  to  him  for 
payment.  If  Rochester  and  the  Owsleys  had  canceled  their  agree- 
ment, Williams  would  not  have  been  aflFected  thereby.  He  would 
still  have  held  his  debt  against  Rochester  and  Owsley. 

If  the  Owsleys  are  still  bound  to  Rochester  in  an  amount  suffi- 
cient to  pay  Williams,  then  in  view  of  the  insolvency  of  Rochester, 
he  may,  in  an  action  in  equity,  to  which  the  payors  of  the  note  are 
made  parties,  be  subrogated  to  Rochester's  rights,  and  have  the 
amount  still  due  to  him  from  the  Owsleys  applied  to  the  payment 
of  his  debt ;  but  in  such  a  proceeding,  the  averment  that  the  Owsleys 
are  still  bound  to  Rochester  in  some  amount  is  indispensable.  There 
is  no  such  averment  in  the  petition  under  consideration. 

There  is  nothing  in  the  case  of  Carvin  &  Co,  v.  Moberly,  et  al,, 
I  Bush  48,  inconsistent  with  this  view  of  the  law.  In  that  case  no 
such  question  was  raised,  and  hence  it  was  not  necessary  that  the 
first  branch  of  the  case  should  be  fully  stated  by  the  court.  The 
contest  was  with  regard  to  the  execution  of  the  collateral  covenant, 
and  the  court  directed  its  attention  to  the  questions  arising  thereon. 

The  demurrer  to  the  petition  should  have  been  sustained.  Judg- 
ment reversed,  and  cause  remanded  for  further  proceedings.  Ap- 
pellee should  be  allowed  to  amend  his  petition  if  he  offers  to  do  so. 

M,  C.  Saufiey,  for  appellant. 
Hill  &  Alcorn,  for  appellee. 


Commonwealth^  et  al.,  v,  M.  N.  DePane, 

Criminal  Law — Money  as  Bail. 

Money  may  be  paid  to  the  trustee  of  the  Jury  fund,  and  a  certificate 
of  such  payment  be  filed  with  the  clerk  in  lieu  of  bail  in  a  criminal 
case.  The  money  thus  deposited  belongs  to  the  defendant  where  he 
pays  it,  and  by  surrendering  himself  into  custody  at  any  time  he  is 
entitled  to  the  money  and  the  clerk  must  pay  it  out  on  his  order. 


244  Kentucky  Opinions. 

APPEAL  FROM  LINCOLN  CIRCUIT  COURT. 

December  10,  1874. 

Opinion  by  Judge  Peters  : 

The  84th  section  of  the  Criminal  Code  provides  that  wherever 
the  defendant  is  admitted  to  bail  in  a  specified  sum,  he  may  de- 
posit said  sum  with  the  trustee  of  the  jury  fund  of  the  county  in 
which  the  trial  is  directed  to  be  had,  and  take  from  the  trustee  a 
certificate  of  such  deposit,  upon  delivering  which  to  the  officer  in 
whose  custody  he  is,  he  shall  be  discharged. 

This  is  the  only  law,  of  which  we  are  aware,  which  authorizes 
the  discharge  of  prisoners  from  custody  by  a  deposit  of  a  sum  of 
money.  That  deposit  must  be  of  the  sum  specified,  and  the  officer 
having  the  prisoner  in  custody  is  only  authorized  to  discharge  him 
upon  the  delivery  to  him  of  the  certificate  of  the  trustee  of  the 
jury  fund  that  the  deposit  is  made  with  him. 

Adams  might,  at  any  time  after  the  money  had  been  deposited 
with  the  clerk  of  the  circuit  court,  have  required  the  surrender  of 
the  money  to  himl  by  said  clerk.  The  clerk  had  no  legal  right  to 
retain  it,  and  when  he  received  it,  he  held  it  subject  to  the  order 
of  Adams,  the  defendant ;  and  the  commonwealth  acquired  no  claim 
on  it  whatever.  The  clerk  was  not  its  agent;  by  receiving  the 
money  he  became  the  debtor  to  Adams  for  the  amount,  and  Adams, 
by  his  assignment,  could  have  transferred  his  right  to  his  assignee, 
and  a  creditor  would  attach  it  and  have  it  applied  to  the  satisfac- 
tion of  his  debt.  This  appellee  did  to  indemnify  him  for  the  horses 
stolen  from  him  by  Adams,  the  owner  thereof.  The  commonwealth 
has  manifested  no  right  to  the  money,  and  the  judgment  in  favor 
of  appellee  has  prejudiced  none  of  its  rights  or  of  the  rights  of 
Miller,  the  custodian. 

The  amendment  to  Sec.  61,  of  the  Criminal  Code,  confers  the 
power  on  the  clerk  of  the  circuit  court,  after  the  term,  to  take  the 
bail  in  the  absence  of  the  judge;  and  after  there  has  been  a  com- 
mitment by  the  court,  and  the  amount  of  bail  fixed,  in  such  cases 
the  clerk  of  the  circuit  court  may  take  the  bail  in  the  absence  of 
the  judge.  This  is  the  extent  of  his  power,  and  it  is  as  Ic^cal  to 
say  that  the  trustee  of  the  jury  ftmd  could  take  the  bail  under  this 
authority  given  to  the  clerk,  as  to  say  the  latter  could  receive  the 
deposit  and  certify  the  fact  to  the  officer  having  the  defendant  in 
custody,  and  thereby  eflFect  his  discharge. 


A.  Harpending  v.  Commonwealth.  245 

Wherefore,  as  the  judgment  is  neither  prejudicial  to  Miller  nor 
the  commonwealth,  let  it  be  affirmed. 

George  W.  Dunlap,  John  Rodman,  for  appellants. 
Breckenridge  &  Fox,  for  appellee. 


A.  Harpending  v.  Commonwealth. 

Tazation— Deduction  of  Indebtedness. 

A  person  assessed  for  taxation  on  money  is  entitled  to  have  deducted 
therefrom  the  amount  of  his  Indebtedness. 

APPEAL  FROM  CALDWELL  CIRCUIT  COURT. 

December  10, 1874. 

Opinion  by  Judge  Peters: 

In  1873  SLppellant,  under  the  equalization  law,  listed  with  the  as- 
sessor for  Caldwell  county,  $1,200  for  taxation.  The  supervisors  for 
said  county  raised  the  amount  to  $20,000.  He  then  applied  to  the 
court  of  said  county  to  have  the  amount  reduced  to  $5,000,  which 
the  court  refused  to  do,  and  he  has  appealed  to  this  court. 

On  the  trial  appellant  was  examined  as  a  witness  in  his  own  be- 
half, and  proved  that  at  the  commencement  of  the  war  he  purchased 
seven  United  States  bonds  of  the  denomination  of  $1,000  each,  and 
had  $4,000  in  United  States  currency ;  that  having  concluded  to  or- 
ganize a  national  bank  in  Princeton,  Ky.,  he  went  to  New  York,  and 
friends  there  agreed  to  furnish  him  what  money  he  might  want  for 
that  purpose ;  that  with  the  money  he  had  and  what  he  borrowed  in 
New  York,  he  was  enabled  to  purchase  $27,000  of  United  States 
bonds;  that  he  went  to  Washington  City  to  deposit  the  bonds  and 
to  get  the  national  currency,  but  on  his  arrival  there  he  found  the 
expenses  to  be  incurred  were  too  great,  and  he  abandoned  the  pur- 
pose of  organizing  a  bank,  sold  six  of  his  United  States  bonds, 
and  retained  the  21  which  he  then  had;  that  his  friends  in  New 
York  subsequently  furnished  him  with  money,  which,  with  the  pro- 
ceeds of  the  six  bonds  he  had  sold,  made  about  the  sum  of  $20,000, 
all  of  which  is  loaned  out,  and  secured  by  mortgages  on  real  estate  in 
Caldwell  county,  Kentucky,  and  of  said  sum  $15,000  are  borrowed, 
and  for  which  he  was  indebted. 

By  an  act  of  the  legislature  approved  January  9,  1852,  it  is  made 
the  duty  of  the  assessors  of  this  commonwealth,  after  having  taken 


246  Kentucky  Opinions. 

the  list  of  all  property  required  to  be  specifically  listed,  to  require 
each  person  on  oa£h  to  fix  the  amount  he  or  she  is  worth  from  all 
other  sources,  on  the  day  to  which  said  list  relates,  after  taking  out 
his  or  her  indebtedness  from  said  amount,  etc. 

2  Rev.  Stat.  253.  This  indebtedness  of  appellant,  from  his  state- 
ment under  oath,  appears  to  be  just  and  owing  for  a  valuable  con- 
sideration, and  such  as  he  had  a  right  to  have  taken  from  the  fund 
loaned  out,  and  that  he  should  be  required  to  pay  tax  on  the  residue 
thereof,  being  $5,000. 

Wherefore  the  judgment  is  reversed  and  the  cause  is  remanded 
for  a  judgment  to  be  rendered  in  ccxiformity  to  this  opinion. 

James  R.  Hewlett,  for  appellant. 
John  Rodman,  for  appellee. 


D.  M.  Griffith  v.  Lafayette  Beacker,  et  al. 

Insolvency — Preference   of   Creditors— Sale   of   Real   Estate — Innocent 
Purchaser. 

Where  an  Insolvent  debtor  and  his  surety  sell  and  convey  the  insol- 
vent's real  estate,  to  prefer  debts  upon  which  the  surety  is  bound,  the 
surety  knowing  of  such  insolvency  and  the  purpose  of  the  sale  and 
receiving  the  consideration  to  carry  out  such  purpose,  the  proceeds  of 
such  sale  are  subject  to  the  payment  of  general  creditors. 

Sale  of  Real  Estate— Innocent  Purchaser. 

Where  a  conveyance  of  real  estate  is  made  by  an  insolvent  in  con- 
templation of  insolvency  and  for  the  purpose  of  preferring  a  creditor, 
while  the  effect  is  to  transfer  all  the  property  to  all  the  creditors, 
whether  the  preferred  creditor  knew  the  purpose  or  not,  still,  where 
the  purchaser  is  innocent  and  pays  a  fair  consideration,  the  sale  will 
not  be  set  aside,  but  the  court  will  direct  the  proceeds  of  such  sale  to 
be  applied  to  pay  all  the  creditors. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

December  10,  1874. 

Opinion  by  Judge  PkYOR : 

It  is  a  fact  conceded  in  argument,  and  if  not,  appears  clearly  from 
the  record,  that  in  May,  1870,  S.  M.  Wing  was  not  only  embar- 
rassed financially,  but  insolvent.  He  made  an  assignment  during 
that  month  to  W.  T.  Brown  of  all  his  estate  for  the  benefit  of  his 
creditors,  and  with  a  view  of  satisfying  their  demands  so  far  as  his 


D.  M.  Griffith  v.  Lafayette  Beacker,  et  al.  247 

property  could  be  made  available.  A  few  weeks  prior  to  this  con- 
veyance in  trust,  he  made  a  sale  of  an  undivided  moiety  of  a  tract 
of  sixty  acres  of  land  to  W.  H.  Griffith,  for  the  sum  of  six  thousand 
dollars,  four  thousand  dollars  of  which,  as  recited  in  the  deed,  was 
paid  in  hand,  and  the  balance  to  be  paid  in  two  equal  instalments. 
W.  H.  Griffith,  the  purchaser  of  the  land,  was  not  a  creditor  of 
Wings,  and  seems  to  have  purchased  the  land  in  good  faith  and  for 
a  full  and  fair  consideration. 

The  appellees,  previous  to  the  sale  made  by  Wing  to  W.  H.  Grif- 
fith, had  instituted  an  action  in  the  Daviess  circuit  court  to  recover 
of  Wing  a  large  sum  of  money,  and  after  the  conveyance  of  the  land 
to  W.  H.  Griffith  by  Wing,  filed  an  amended  petition,  in  which  they 
allege  that  the  sale  to  W.  H.  Griffith  was  made  in  contemplation  of 
insolvency,  and  with  a  design  to  prefer  creditors,  that  is  to  prefer 
the  said  Daniel  M.  Griffith,  who  is  made  a  defendant  to  the  amended 
petition;  that  no  money  whatever  was  paid  by  W.  H.  Griffith  to 
Wing,  as  the  deed  recited ;  but  that  the  said  Daniel  M.  Griffith  was 
bound  as  the  security,  drawer  or  endorser  of  said  Wing  for  the  re- 
cited consideration  paid,  of  $4,000.70,  or  that  the  said  Wing  was  in- 
debted to  him  in  said  sum,  or  a  part  of  it ;  and  that  the  real  consid- 
eration was  the  assumption,  settlement  or  payment  of  that  sum,  or  a 
part  of  it,  by  the  said  W.  H.  Griffith  to  and  with  the  said  Daniel  M. 
Griffith  as  an  indemnity  against  his,  the  said  Daniel's,  liability  for 
Wing,  or  said  Wing's  indebtedness  to  him ;  and  the  said  W.  H.  and 
Daniel  M.  Griffith  are  called  on  to  state  and  disclose  the  true  nature 
of  the  transaction. 

The  parties  all  lived  in  the  same  town  or  its  vicinity  when  these 
transactions  took  place.  Daniel  M.  Griffith  was  liable  jointly  with 
or  as  endorser  for  Wing  to  a  large  amount.  He  sold  the  land  to  W. 
H.  Griffith  for  Wing,  took  the  notes  for  the  deferred  pa)rments,  as 
well  as  the  drafts  or  bills  representing  the  four  thousand  dollars, 
iiito  his  own  possession.  The  notes  were  endorsed  to  him  by  Wing, 
and  the  acceptances  payable  to  his,  D.  M.  Griffith's  order.  The  bank 
cashiers  were  directed  when  the  paper  matured  upon  which  the  ap- 
pellant was  liable  jointly  with  Wing,  to  apply  these  acceptances  of 
W.  H.  Griffith  to  its  payment.  Anderson,  one  of  the  cashiers,  is  of 
the  opinion  that  W.  H.  Griffith  directed  the  application  of  the 
money ;  but  in  this  he  is  evidently  mistaken,  as  W.  H.  Griffith  swears 
that  he  had  nothing  to  do  with  tiie  paper  after  the  delivery  to  D.  M. 
Griffith  except  to  renew,  and  that  he  never  knew  how  the  money  was 
to  be  applied ;  and  besides  the  acceptances  being  payable  to  the  or* 


248  Kentucky  Opinions. 

der  of  the  appellant,  he  alone  could  direct  the  application  of  the 
money. 

The  notes  for  the  deferred  payments  were  assigned  to  appellant 
about  the  same  time,  and  he  admits  in  his  answer  that  this  was  done 
to  pay  debts  for  which  they,  Griffith  and  Wing,  were  jointly  liable, 
and  had  contracted  as  partners,  and  that  he  had  the  right  so  to  apply 
the  money,  for  the  reason  that  the  land  sold  was  partnership  prop- 
erty. That  the  land  sold  belonged  to  them  as  partners,  or  that  the 
debts  owing  by  them  were  partnership  debts,  is  in  no  manner  sus- 
tained by  the  proof ;  but  on  the  contrary,  the  manner  in  which  this 
sale  of  the  land  was  made,  and  the  notes  and  acception  given,  con- 
duces clearly  to  show  that  appellant  was  endeavoring  to  save  him- 
self from  loss  by  applying  the  proceeds  of  the  land  to  the  payment 
of  debts  for  which  he  was  jointly  liable  with  Wing.  If  Wing  was 
regarded  by  appellant  as  solvent,  why  were  the  notes  transferred  to 
pay  their  joint  liabilities,  and  why  were  the  acceptances  made  pay- 
able to  the  order  of  appellant,  who  was  not  entitled  to  any  part  of 
the  money  ? 

Wing  was  a  good  business  man,  understood  fully  the  nature  of 
business  transactions ;  and  there  was  no  security  for  the  transfer  of 
the  notes,  and  certainly  none  for  making  the  acceptances  payable  to 
the  order  of  appellant,  when  the  paper  in  bank  had  not  matured,  and 
he  is  as  much  liable  for  the  bank  debts  as  Wing.  Wing  had  been  pro- 
tected in  the  bank  of  which  appellant  was  a  director  for  a  large  sum 
of  money  ten  days  prior  to  the  time  at  which  these  transfers  of  the 
notes  were  made.  The  cashier  of  the  bank  was  apprised  of  Wing's 
embarrassments,  and  appellant  being  a  man  of  business  habits,  and 
in  the  habit  of  endorsing  for  Wing,  must  have  had  from  the  manner 
in  which  the  transaction  of  sale  took  place,  some  reason  to  believe 
that  there  was  a  necessity  for  having  indemnity  by  reason  of  this 
joint  liability.  Yet  it  is  a  little  strange  tfiat  Wing  and  Griffith  should 
have  been  paying  their  debts,  or  preparing  to  meet  them  before  ma- 
turing, when  Wing  was  then  under  protest  in  bank. 

But  does  this  knowledge,  or  want  of  knowledge  on  the  part  of  the 
creditor  preferred,  affect  his  liability  to  restore  what  he  has  received 
under  the  act  of  1856?  Such  has  not  been  the  construction  of  that 
act  by  this  court;  but  it  is  made  to  depend  upon  the  insolvency  of 
the  debtor,  and  the  object  the  latter  had  in  view  in  making  the  pref- 
erence. If  made  in  contemplation  of  insolvency  and  for  the  purpose 
of  preferring  a  creditor,  it  has  the  effect  to  transfer  all  the  property 
to  all  the  creditors,  whether  the  preferred  creditor  knew  the  purpose 


D.  M.  Griffith  v.  Lafayette  Beacker,  et  al.  249 

of  the  debtor  or  not.  Temple,  Barker  &  Co,  v.  Poyntz,  et  al.,  2  Du- 
vall  276.  In  this  case  the  sale  was  made  by  appellant  for  Wing  to 
W.  H.  Griffith  in  order  that  the  proceeds  of  the  sale  might  be  ap- 
plied to  the  discharge  of  the  debts  owed  jointly  by  appellant  and 
Wing  to  the  banks,  as  well  as  other  creditors.  This  was  the  pur- 
pose Wing  had  in  view,  and  the  facts  also  show  that  appellant  was 
not  only  aware  of  this  purpose,  but  was  the  chief  instrument  in  ac- 
complishing it.  The  appellant  no  doubt  supposed  that  he  had  the 
legal  right  to  have  the  debts  preferred  in  the  manner  in  which  they 
were  discharged,  and  whilst  there  is  no  moral  wrong  in  securing 
such  a  preference,  still,  by  the  express  language  of  the  statute,  if 
made  by  the  debtor  in  contemplation  of  insolvency  and  with  the  de- 
sign to  prefer,  it  subjects  all  of  his  estate  to  the  benefit  of  creditors. 

The  sale  of  the  land  in  this  case  was  made  with  the  view  of  ap- 
plying the  proceeds  to  the  liabilities  of  Griffith  and  Wing.  The  peti- 
tion charges  that  the  consideration  for  the  sale  was  to  indemnify 
appellant  in  his  liability  for  Wing,  and  to  prefer  him  as  a  creditor : 
and  although  the  sale  of  the  land  is  asked  to  be  disregarded,  and  to 
operate  as  a  transfer  of  the  debtor's  estate,  the  chancellor  is  also 
asked  to  make  all  such  orders  as  will  secure  the  application  of  the 
assets  of  Wing  to  the  payment  of  the  debts  of  creditors,  and  for 
other  proper  reliefs.  Appellant  is  a  party  defendant  to  the  pleading. 
The  sale,  from  the  proof,  although  made  in  contemplation  of  insolv- 
ency, was  made  to  an  innocent  purchaser,  and  the  preferred  cred- 
itor who  made  the  sale  for  this  purpose  of  preference,  by  the  consent 
of  the  debtor,  instead  of  getting  the  land,  takes  the  proceeds;  and 
upon  such  a  state  of  facts,  although  the  sale  of  the  land  may  be  up- 
held, the  creditor,  who  is  a  party  defendant,  making  the  sale  and  ap- 
plying the  proceeds  so  as  to  credit  the  preference,  is  clearly  em- 
braced by  the  statute.  In  the  case  of  Temfle,  Barker  &  Co.  v. 
Poyntz,  2  Duvall  276,  it  was  adjudged  that  the  sale  was  not  made 
in  contemplation  of  insolvency,  and  further  that  there  was  no  proof 
that  any  assignment  of  the  proceeds  were  made  in  contemplation  of 
insolvency,  or  that  the  assignees  so  understood. 

In  the  case  of  Davis  v,  Jackson,  etc,  the  money  was  loaned  to  pay 
the  debt  on  which  Davis  was  liable,  the  loan  made  at  the  time  the 
mortgage  was  given.  Suppose  in  that  case,  Davis,  instead  of  loan- 
ing the  money,  had  taken  the  proceeds  of  Hawkins's  property  and 
paid  it.  Can  there  be  any  question  but  what  it  would  have  been 
within  the  statute  of  1856?  We  think  not.  The  allegation  is,  that 
the  sale  was  made  to  prefer  appellant.    This  fact  is  clearly  estab- 


250  Kentucky  Opinions. 

lished,  and  when  shown,  the  prayer  for  general  relief  authorized  the 
judgment. 
Judgment  is  aMrmed  on  both  the  original  and  cross-appeal. 

Sweeney  &  Stuart,  for  appellant, 
G.  W.  Williams,  for  appellees. 


John  Miller  v,  James  Gaither,  et  al. 

Quieting'  Title— Possession. 

In  order  to  obtain  a  judgment  quieting  title  to  real  estate  in  a  court 
of  equity  the  plaintiff  by  himself  or  tenant  must  be  in  possession  of 
the  real  estate. 

Possession. 

The  right  to  possession  of  real  estate  can  only  be  determined  in  an 
action  at  law,  and  cannot  be  determined  in  a  court  of  equity. 

APPEAL  FROM  HARDIN  CIRCHJIT  COURT. 

December  11, 1874. 

Opinion  by  Judge  Pryor: 

This  is  intended  to  be  action  by  the  appellant  to  quiet  his  title  and 
possession  to  a  tract  of  four  hundred  acres  of  land  purchased  by  him 
of  one  Hunt;  and  his  right  to  maintain  it,  cannot  be  doubted  if  the 
allegations  of  the  petition  constitute  a  cause  of  action.  It  is  essen- 
tial in  a  case  like  this,  in  order  to  obtain  the  aid  of  the  chancellor, 
that  the  party  seeking  the  relief  should  be  in  the  possession  of  the 
premises  by  himself  or  tenant,  else  his  possession  cannot  be  said  to 
have  been  disturbed,  nor  a  possession  quieted  that  does  not  exist. 

The  mere  right  to  the  possession  will  not  suffice,  as  the  remedy  is 
ample  by  an  action  at  law.  In  this  case  the  appellant  claims  only  a 
constructive  possession,  and  is  asking  the  chancellor  to  interfere,  not 
to  quiet  an  actual  .possession,  but  to  enable  him  to  perfect  his  title, 
by  settling  the  question  as  to  a  disputed  boundary  and  g^iving  to  him 
the  possession.  His  vendors,  or  those  under  whose  title  he  claims, 
had  been  defeated  in  an  action  of  ejectment,  asserting  the  same  title 
upon  an  issue  involving  the,  identical  question  of  boundary  as  pre- 
sented in  this  case;  and  the  appellant,  who  claimed  a  constructive 
possession  by  reason  of  his  deed  from  Hunt,  alleges  that  he  at- 
tempted to  take  the  actual  possession  of  the  disputed  land  by  his 
tenant,  Harris,  and  that  this  tenant  was  expelled  from  the  possession 


John  Maxey  v.  Commonwealth.  251 

in  a  proceeding  of  forcible  entry  and  detainer  by  the  appellees,  who 
claimed  the  land,  and  had,  by  virtue  of  their  claim,  a  tenant  in  the 
actual  possession. 

The  appellant's  vendor  had  also  instituted  another  action  or  ac- 
tions for  the  recovery  of  the  land,  and  these  proceedings  ended  in  a 
compromise.  What  that  compromise  was,  is  not  alleged.  The  ap- 
pellant, as  well  as  his  vendor,  failing  to  have  any  possession,  and  also 
failing  to  manifest  any  right  to  the  possession  in  their  actions  at  law, 
or  to  maintain  a  possession  acquired  by  a  forcible  entry,  are  now 
seeking  to  establish  their  right  of  entry  and  possession  by  the  aid  of 
a  court  of  equity.  If  appellant  has  the  l^^l  title  and  the  right  to 
entry,  he  can  maintain  his  action  of  ejectment,  and  a  court  of  equity 
where  he  has  no  possessicm,  will  not  assume  the  jurisdiction  or  the 
right  to  search  for  these  lost  clauses  and  lines  for  the  purpose  of  per- 
fecting a  title  or  enforcing  an  alleged  right  of  possession.  If  the  ap- 
pellant has  the  equitable  title,  as  he  maintains  he  has,  and  the  right 
of  possession,  there  is  no  obstacle  in  the  way  of  recovery  in  the 
proper  form. 

The  judgment  of  the  court  below  is  affirmed,  the  petition  present- 
ing no  cause  of  action.  Judge  Cofer  not  sitting. 

W,  B.  Read,  for  appellants. 
R.  D.  Murray,  for  appellees. 


John  Maxey  v.  Commonwealth. 

Criminal  Law— Homicide — Malice. 

If  one  kUls  another  without  cause  the  law  implies  malice;  but 
malice  cannot  be  implied  from  every  deliberate  cruel  act  committed  by 
one  person  against  another,  for  if  the  killing  is  in  sudden  heat  and 
passion,  the  crime  is  manslaughter  and  not  murder.  No  malice  can  be 
implied  where  the  killing,  though  intended,  was  done  in  sudden  heat 
of  passion. 

APPEAL  FROM  BARREN  CIRCUIT  COURT. 

December  11,  1874. 

Opinion  by  Judge  Pryor: 

Instruction  No.  5,  given  at  the  instance  of  the  attorney  for  the 
commonwealth,  was  misleading,  and  especially  upon  the  facts  ap- 
pearing in  the  case.  There  was  no  eye  witness  to  the  killing,  and 
the  jury  could  not  well  determine  the  condition  or  attitude  of  the 


252  Kentucky  Opinions. 

parties,  the  one  to  the  other,  at  the  time.  If  one  kills  another  with- 
out cause,  the  law  implies  malice,  and  in  every  case  of  homicide 
unexplained,  malice  must  be  presumed  to  have  existed  in  the  breast 
of  the  guilty  party;  but  malice  cannot  be  implied  from  every  de- 
liberate cruel  act  committed  by  one  person  against  another,  however 
sudden,  for  if  the  killing  is  in  sudden  heat  and  passion,  the  crime 
is  manslaughter,  and  not  murder.  The  man  intends  to  kill  when  he 
stabs  in  sudden  heat  of  passion,  and  no  malice  is  to  be  implied  in 
such  a  case;  and  to  embrace  the  legal  proposition  contained  in  in- 
struction No.  5  to  a  jury,  is  calculated  to  impress  the  mind  of  the 
jury  that  every  killing,  under  any  circumstances,  unless  in  self- 
defense,  implies  malice. 

Instruction  No.  i,  given  at  the  instance  of  the  defense,  is  more 
easily  understood  by  a  jury  and  needs  no  explanation.  The  legal 
mind  can  understand  the  legal  import  of  instruction  No.  5,  but  one 
not  skilled  in  the  law  might  conclude  that  instruction  No.  5  was  in 
conflict  with  instruction  No.  i.  Tha  jury  should  have  been  told, 
also,  that  in  their  deliberations  on  the  facts,  if  they  believed  beyond 
a  reasonable  doubt  that  the  accused  was  guilty,  and  also  doubted  as 
to  the  degree  of  the  offense,  they  must  find  him  guilty  of  the  lesser 
offense.  The  jurors,  or  some  of  them,  under  the  instructions,  may 
have  doubted  as  to  whether  the  offense  was  murder  or  manslaughter, 
and  yet  they  were  not  told  what  their  verdict  should  be  in  such  a 
state  of  case.  The  court  is  required  to  give  the  law  of  the  case. 
Blair  v.  Commonwealth,  7  Bush  227. 

For  the  reasons  indicated  the  judgment  of  the  court  below  is 
reversed,  and  the  cause  remanded  with  directions  to  award  a  new 
trial,  and  for  further  proceedings  consistent  with  this  opinion. 

Sims,  Bowles  &  McQuown,  for  appellant, 
W,  H.  Botts,  for  appellee. 


George  Jenkins  v,  D.  D.  Goodaker^  et  al. 


Real  Estate — ^Boundary  Line— Depositions. 

DepoBitions  taken  by  one  party  in  a  former  cause  between  the  same 
parties,  in  which  title  to  the  same  land  was  involved  may  be  read  in 
evidence  by  the  other  party. 

APPEAL  FROM  CALDWELL  CIRCUIT  COURT. 

December  12,  1874. 


James  McGuire  v.  John  McGuire.  253 

Opinion  by  Judge  Cofer  : 

While  there  is  uncertainty  as  to  the  true  location  of  the  appellee's 
lines,  we  think  the  evidence  preponderates  in  their  favor,  and  cer- 
tainly there  is  no  such  preponderance  against  them  as  would  war- 
rant this  court  in  reversing  the  judgment  of  the  court,  which  is  cer- 
tainly entitled  to  as  much  consideration  as  the  verdict  of  a  jury. 

The  depositions  read  by  appellees  were  taken  by  the  appellant  in 
his  own  behalf,  in  a  former  suit  between  the  same  parties,  in  which 
the  appellees'  title  to  the  land  now  in  controversy  was  involved,  and 
were  competent  evidence.  In  that  suit  the  appellees  were  compelled 
to  make  out  title  in  order  to  recover,  and  as  appellant  disputed  the 
title  alone  on  the  ground  that  their  boundary  did  not  include  the 
land  in  contest,  the  controversy  was  practically  the  same  in  both 
cases,  and  while  the  judgment  may  not  be  an  estoppel,  it  is  evidence 
of  a  very  high  character  against  the  appellant  to  prove  tliat  appel- 
lees' boundary  includes  the  land  in  dispute.  In  that  case  appellees 
had  no  right  to  an  injunction,  except  the  court  was  of  opinion  on 
the  facts  that  their  boundary  embraced  the  land,  and  so  the  judg- 
ment perpetuating  the  injunction  was  an  express  determination  that 
it  did  embrace  it. 

It  seems  to  us  that  the  judgment  was  clearly  right,  and  it  is  <i/- 
Urmed. 

G,  W,  Duvall,  for  appellant. 
P,  H.  Darby,  for  appellees. 


James  McGuire  v.  John  McGuire. 


Breach  of  Contract — ^Damages — ^Assignment — Parties  to  Suit — Pleading. 
Where  a  written  contract  is  not  assignable,  an  assignment  will  pass 
an  equitable  right  only,  and  where  suit  is  brought  on  such  contract 
for  its  breach  the  assignor  must  be  made  a  party. 

Pleading — ^Waiver. 

The  failure  to  make  a  person  a  party  when  it  appears  on  the  face  of 
the  petition  that  he  should  be  a  party,  is  a  cause  for  demurrer,  but 
when  no  demurrer  is  filed  such  objection  is  waived. 

Pleading — ^Proof. 

Before  plaintifC  can  recover  for  breach  of  a  contract  he  must  not 
only  aver  and  prove  defendant's  failure  to  comply  with  its  terms,  but 
he  must  aver  and  prove  that  he  himself  complied  with  or  was  ready 
to  carry  out  his  agreement. 


254  Kentucky  Opinions. 

APPEAL  FROM  LEE  CIRCUIT  COURT. 
December  12,  1874. 

Opinion  by  Judge  Peters: 

The  written  contract  between  Webb  and  appellee  was  not  by  law 
assignable,  and  the  assignment  to  appellant  passed  to  him  only  an 
equitable  right ;  and  as  the  legal  right  remained  in  Webb,  he  should 
have  been  made  a  party  to  the  action  either  as  plaintiff  or  defendant. 
Sec.  30  and  31,  Civil  Code. 

This  appeared  on  the  face  of  the  petition  and  the  failure  to  make 
him  a  party  was  a  cause  of  demurrer,  which  should  have  been  speci- 
fied as  a  distinct  ground  of  demurrer.  But  where  an  objection  for 
the  want  of  necessary  parties  is  not  made  by  demurrer,  it  shall  be 
deemed  to  have  been  waived.  Sec.  121,  Civil  Cod'e. 

The  writing  sued  on  imposed  on  Webb  a  personal  duty,  from 
which  he  could  not  relieve  himself  by  assigning  it  to  a  third  party, 
and  substituting  him  to  perform  the  duty,  unless  appellant  assented 
to  the  substitution,  agreed  to  look  to  the  assignee  for  the  performance 
of  Webb's  part  of  the  contract,  and  released  him.  In  order  to  main- 
tain the  action,  appellee  should  have  alleged  the  foregoing  facts  in 
direct  and  positive  terms,  and  not  leave  them  to  be  inferred  from 
some  other  facts  stated  argumentatively,  as  is  done  in  this  petition, 
which  for  that  reason  would  have  been  bad  on  demurrer;  but  we 
regard  the  defect  cured  by  the  answer,  in  which  he  says  that  he  had 
logs  in  the  mill  yard  at  the  time  appellee  bought  the  mill,  such  as  he 
was  bound  to  furnish  under  his  contract  with  Webb,  but  that  plain- 
tiff failed  and  refused  to  saw  them,  or  any  logs  furnished  him  by 
defendant  after  he  purchased  the  mill  from  Webb ;  and  he  says  that 
if  plaintiff  hadi  signified  to  him  that  he  intended  to  carry  out  the 
Webb  contract,  he  would  have  furnished  the  logs  as  agreed  upon, 
evidently  waiving  and  making  no  objection  to  the  substitution  of 
appellee  in  the  place  of  Webb. 

We  now  proceed  to  consider  whether  the  instructions  given  to  the 
jury  by  the  court  and  excepted  to  by  appellant,  were  a  correct  pres- 
entation of  the  law  of  the  case.  In  the  first  the  jury  are  told,  in  sub- 
stance, that  if  they  believe  from  the  evidence  that  appellee  bought 
out  Webb's  interest  in  the  mill,  and  that  appellant  assented  to  the 
purchase,  and  that  appellant  failed  to  deliver  as  many  logs  in  the 
mill  yard  as  said  mill  would  saw,  with  the  hands  furnished  by  ap- 
pellee to  saw  and  take  care  of  the  lumber,  and  of  the  description 


James  McGuire  v.  John  McGuire.  255 

named  in  the  contract,  then  they  will  find  for  appellee  the  amount 
they  believe  from  the  evidence  he  has  been  damagd  by  reason  of 
said  defendant's  failure  to  furnish  said  logs,  unless  they  believe  from 
the  evidence  that  the  plaintiff  released  said  defendant  from  his  con- 
tract to  deliver  said  logs  under  said  contract,  before  he  had  violated 
the  same,  or  unless  they  believe  from  the  evidence  that  the  plaintiff 
refused  to  permit  the  defendant  to  deliver  the  logs  according  to  his 
contract,  or  unless  they  believe  from  the  evidence  the  defendant  de- 
livered the  logs  according  to  his  contract.  There  are  several  obvious 
objections  to  this  instruction.  First,  it  assumes,  as  a  foundation  for 
the  recovery,  that  the  plaintiff  had  all  the  hands  at  the  mill  ready  to 
cut  and  take  care  of  all  the  logs  that  the  mill  was  capable  of  sawing, 
and  withdraws  the  consideration  of  that  fact  from  the  jury.  Second, 
the  plaintiff's  right  to  recover  is  not  made  to  depend  at  all  on  his 
readiness  and  willingness  to  saw  the  logs  to  be  furnished  by  defend- 
ant, but  on  the  failure  of  defendant  to  furnish  the  logs,  whether 
plaintiff  was  willing  and  ready  to  saw  them  or  not.  Third,  although 
the  jury  might  have  believed  from  the  evidence  that  the  plaintiff  had, 
before  suit  was  brought,  released  defendant  from  his  obligation  to 
<ieliver  logs,  still  they  were  told  that  if  he  had  released  defendant  be- 
fore he  had  violated  his  contract,  that  the  release  was  not  available. 
Certainly  after  defendant  had  violated  his  contract,  and  before  it  had 
expired  (if  he  in  fact  had  violated  it),  the  plaintiff  could  have  re- 
leased him  from  his  further  obligation  to  deliver  logs,  and  such  re- 
lease would  protect  him  from  the  time  it  was  made.  But  he  could 
have  released  defendant  from  the  consequences  of  the  breach  of  his 
contract  as  well  after  as  before  the  breach,  and  make  the  release 
cover  the  past  and  future.  This  qualification  of  the  instruction  was 
too  limited. 

The  second  instruction  given  is  obnoxious  to  the  same  objections 
pointed  out  to  the  first.  Under  the  evidence  in  the  case,  instruction 
No.  3,  as  asked  by  appellant,  should  have  been  given. 

Wherefore  the  judgment  is  reversed  and  the  cause  remanded  for 
a  new  trial,  and  for  further  proceedings  consistent  herewith. 

William  Preston,  for  appellant. 
H,  C.  Lilly,  for  appellee. 


256  Kentucky  Opinions. 

John  E.  Pilant  v.  David  Wilson. 

Infancy — Settlement — Pleading. 

Where  an  infant,  who  is  a  party  to  a  contract  of  settlement,  fails  to 
set  up  such  infancy,  he  is  bound  by  the  terms  of  such  settlement  the 
same  as  if  not  an  Infant. 

APPEAL  FROM  CALDWELL  COURT  OF  COMMON  PLEAS. 

December  12,  1874. 

Opinion  by  Judge  Lindsay  : 

Appellee  does  not  deny  the  performance  during  the  years  1867  and 
1869  of  the  work  and  labor  charged  for,  but  he  pleads  as  matter  of 
defense  that,  at  the  end  of  1869,  appellant  abandoned  the  contract 
under  which  he  was  then  working,  and  that  the  parties  entered  into 
a  new  agreement,  covering  the  years  1870  and  1871,  which  agree- 
ment has  been  fully  performed.  The  making  of  this  new  agreement, 
which  is  proved  beyond  question,  was  in  effect  a  full  settlement  be- 
tween the  parties  as  to  the  years  1867,  1868  and  1869. 

As  appellant  was  then  an  infant,  he  might  have  avoided  the  effect 
of  this  settlement  by  relying  on  his  infancy;  but  he  did  not  see 
proper  to  do  so.  In  his  original  petition  he  does  not  mention  the 
fact  of  his  infancy ;  and  in  his  amended  petition,  filed  after  the  set- 
tlement had  been  pleaded,  he  seems  to  have  studiously  avoided  the 
assertion  of  any  right  he  may  have  had,  by  reason  of  his  non-age. 
As  the  pleadings  stood,  the  action  was  properly  tried  as  though  both 
parties  had  all  the  while  been  adults.  In  this  view  of  the  case,  the 
court  did  not  err  in  giving  instruction  No.  2,  asked  by  appellee,  nor 
in  refusing  Nos.  3  and  4,  asked  by  appellant. 

Infancy  to  be  made  available  for  the  purpose  of  escaping  the  con- 
sequences of  a  contract,  must  in  some  way  be  set  up  and  relied  on. 
It  was  not  so  set  up  and  relied  on  in  this  case,  and  hence  appellant 
cannot  complain  at  being  treated  by  the  court  as  an  adult. 

Judgment  affirmed, 

George  W,  Duvall,  for  appellant, 
James  Hewlett,  for  appellee. 


C.  A.  McLaughlin,  et  al.,  v.  Frank  A.  Avoid,  et  al. 

Appeals— Bill  of  Exceptions. 

Time  to  prepare  a  bill  of  exceptions  may  be  extended  to  the  sacceed- 
ing  term  of  the  court  but  not  beyond  such  succeeding  term. 


C.  A.  McLaughun,  et  al.,  v,  Frank  A.  Avoid,  et  al.     257 

APPEAL  FROM  KENTON  CHANCERY  COURT. 

December  12,  1874. 

Opinion  by  Judge  Lindsay  : 

It  is  recited  in  the  judgment  in  this  case  that  the  cause  was  heard 
upon  the  oral  and  written  proof. 

Sec.  1 1  of  the  act  estabUshing  the  chancery  courts  for  the  counties 
of  Kenton,  Campbell,  etc..  Vol.  i,  p.  75,  Acts  of  1871,  provides  that 
in  certain  contingencies,  the  court  may  hear  oral  evidence  on  the 
trial  of  any  action  or  proceeding  in  equity,  and  that  "such  evidence 
and  all  exceptions  thereto,  may  be  made  part  of  the  record  by  bills 
of  evidence  and  exceptions,  as  now  provided  by  law  in  ordinary 
cases." 

The  judgment  appealed  from  was  rendered  on  the  29th  of  June, 
1872.  The  first  mention  of  a  bill  of  exceptions,  as  shown  by  the 
record,  was  on  the  7th  day  of  February,  1873.  This  was  certainly 
not  in  the  term  at  which  the  judgment  was  rendered,  and  unless  the 
terms  bad  been  changed  since  the  passage  of  the  act  of  March  20, 
1 87 1,  two  terms  had  intervened.  The  motion  then  made  was  that 
leave  be  given  until  a  succeeding  term  to  prepare  and  file  a  bill  of 
exceptions. 

On  the  14th  of  April,  1873,  time  was  extended  until  the  i8th  day 
of  that  term  of  the  court,  and  cm  the  30th  day  of  April  further  time 
was  given  until  the  second  Monday  in  June,  1873.  June  9,  the  time 
was  further  extended  until  the  sixth  day  of  the  term.  Afterwards 
extensions  were  made  until  the  December  term,  1873,  when  the 
paper  styled  a  bill  of  exceptions  and  copied  into  the  record  was 
finally  ordered  to  be  made  part  thereof. 

Sec.  364,  Civil  Code,  provides  that  the  exception  must  be  made  in 
the  time  of  the  decision  complained  of,  "and  that  time  may  be  given 
to  reduce  the  exception  to  writing,  but  not  beyond  the  succeeding 
term."  In  this  case  no  time  was  asked  or  given  to  reduce  the  excep- 
tions to  writing  until  after  the  expiration  of  the  term.  No  motion 
was  made  until  a  succeeding  term,  and  the  court  had  then  lost  all 
control  in  the  matter. 

But  if  this  were  not  so,  the  court  certainly  had  no  power  to  ex- 
tend the  time  to  still  another  term.  Porter  v.  Juny,  Mssi  Opinion, 
July,  1856;  Myer's  Code,  p.  481.  Kennedy  &  Bro.  v.  Cunningham,  2 
Met.  538. 

We  cannot  consider  the  paper  on  file  termed  a  bill  of  exceptions, 

17 


258  Kentucky  Opinions. 

and  as  the  payment  is  authorized  by  the  pleadings,  we  must  presume 
that  it  was  sustained  by  the  evidence  heard  by  the  chancellor. 
Judgment  aMrtned. 

Stevenson  &  O'Hara,  for  appellants. 
J.  G.  Carlisle,  for  appellees. 


William  E.  Milton^  et  al.,  v.  C.  W.  Castleman,  et  al. 


Practice — Negligence. 

A  party  to  a  cause  who  neglects  to  attend  and  look  after  his  inter- 
ests cannot,  in  the  absence  of  fraud  or  statements  of  his  adversary 
misleading  him,  complain  that  his  cause  was  submitted  and  disposed 
of  in  his  absence. 

appeal  from  PAYETTE  CIRCUIT  COURT. 

December  14,  1874. 

Opinion  by  Judge  Lindsay  : 

The  evidence  in  this  cause  does  not  show  that  C.  W.  Castleman 
was  at  any  time  the  agent,  in  a  legal  sense,  of  the  appellants,  or  of 
any  of  them.  That  he  voluntarily  assumed  the  management  of  the 
litigation  attending  the  contest  over  the  two  papers  left  by  A.  B. 
Taylor,  which  purported  to  be  his  last  will,  is  perfectly  clear, 
and  that  he  manifested  great  interest  and  industry  in  prepar- 
ing the  case  and  in  superintending  the  trials  in  court,  cannot  be 
doubted.  As  his  wife  was  one  of  the  parties  in  interest,  these  facts 
do  not  necessarily  conduce  to  prove  that  he  was  the  agent  of  the 
Miltons.  He  could  not  look  after  his  own  and  his  wife's  interests 
without  also,  to  some  extent,  acting  for  them.  He  corresponded  with 
them  freely,  as  it  was  natural  that  he  should,  in  view  of  the  fact 
that  they  were  engaged  in  a  common  cause,  but  there  is  no  state- 
ment or  admission  in  his  letters,  from  which  we  can  determine  that 
he  was  reporting  to  them  as  agent.  In  no  instance  did  he  ask  them 
for  advice  or  instruction.  He  upbraided  some  of  them  for  their 
want  of  attention  to  the  contest,  and  insisted  that  they  should  take 
steps  to  induce  their  own  attorneys  to  manifest  more  interest  in,  and 
give  more  attention  to  the  litigation. 

We  are  of  opinion  that  the  Miltons  left  the  management  of  the 
contest  to  Castleman,  because  he  was  living  in  Fayette  county,  and 
because  they  had  confidence  in  his  zeal  and  industry,  and  not  on 


Willie  Harmon,  et  al.,  v.  John  M.  Higgins.  259 

account  of  any  contract  of  agency  with  him,  either  express  or  im- 
plied. It  is  manifest  that  after  the  year  1861,  the  interest  of  all  the 
parties  to  the  contest  having  abated,  the  case  seems  to  have  lingered 
on  the  docket  for  about  eight  years.  It  might  well  have  been  dis- 
missed for  want  of  prosecution. 

During  all  this  time,  nothing  is  heard  from  the  appellants,  except 
on  one  occasion,  when  they  claim  that  they  made  inquiry  of  Kinkead 
and  Castleman  as  to  the  probability  of  a  compromise.  Long  anterior 
to  this,  Castleman  and  his  wife  had  relinquished  all  their  claim  to 
the  Taylor  estate  to  their  children.  They  had  the  legal  right,  so  far 
as  the  Miltons  were  concerned,  to  purchase  from  White  and  wife. 
Neither  of  them  were  bound  in  law  or  in  good  morals  to  notify  the 
Miltons  that  they  were  about  to  so  purchase.  Nor  were  they  under 
obligations  to  prosecute  for  them  the  contest  in  the  circuit  court. 
Appellants  had  long  since  virtually  abandoned  it.  It  seems  that  the 
Miltons  had  no  counsel  present  when  the  contest  was  finally  de- 
termined. This  was  not  the  fault  of  Castleman.  It  was  certain  that 
they  did  not  entrust  to  him  the  duty  of  employing  counsel  to  repre- 
sent them.  The  proof  shows  that  they  selected  and  employed  their 
own  attorneys. 

It  is  not  shown  that  Castleman  did  or  said  anything  to  mislead  the 
Miltons  or  their  attorneys,  as  to  the  trial  of  the  contest.  The  case 
was  called  in  open  court,  was  postponed  and  finally  submitted  to  a 
jury.  Appellants  or  their  counsel  might  have  been  present  if  they 
had  so  chosen.  Their  absence  was  not  brought  about  by  the  fraud 
of  Castleman.  It  was  the  result  of  negligence  or  want  of  interest 
in  the  matter  in  controversy.  To  allow  them  now  to  show  the  profits 
of  the  purchase  made  by  Mrs.  Castleman,  and  not  to  compel  the 
party  reaping  the  benefit  of  a  breach  of  duty  by  an  agent  to  sur- 
render to  a  principal  whose  interests  had  been  betrayed,  would  be 
to  reward  gross  negligence. 

The  judgment  of  the  chancellor  must  be  aMrtned. 

Breckenridge  &  Buckner,  for  appellants. 
Huston  &  Mulligan,  for  appellees. 


Willie  Harmon,  et  al.,  v.  John  M.  Higgins. 

Decedents'  Estates — Heirs — Duty  of  Court — Remedy. 

When  heirs  receive  anything  from  an  estate  as  distributees,  they  are 
to  that  extent  bound  personally  to  pay  decedent's  debts,  and  such  heirs 
may  be  sued  for  the  debts  of  their  ancestor. 


26o  Kentucky  Opinions. 

Duty  of  Court — Remedy. 

Where  an  administrator  has  been  removed  and  a  creditor  of  the  de- 
cedent seeks  to  recover  from  heirs»  his  remedy  is  by  an  action  in 
equity  against  the  heirs.  Such  an  action  should  be  transferred  to  the 
equity  docket. 

APPEAL  FROM  CALDWELL  CIRCUIT  COURT. 

December  14,  1874. 

Opinion  by  Judge  Lindsay  : 

The  notes  sued  on  in  this  case  do  not  bind  the  children  and  heirs 
at  law  of  W.  P.  Harmon,  deceased.  If  they  received  anything  from 
his  estate,  as  distributees,  they  are  to  that  extent  bound  personally 
to  pay  his  debts.  If  any  estate  descended  to  them  as  heirs  at  law, 
it  may  be  subjected  in  their  hands  to  the  payment  of  his  debts. 
Heirs  at  law  may  be  sued  for  the  debts  of  their  ancestor.  An  action 
at  law  may  be  prosecuted  against  them  when  sued  jointly  with  the 
personal  representative.  Sec.  6,  Chap.  40,  Rev.  Stat.,  Sec.  6,  Chap. 
44,  Gen.  Stat.  In  this  case  the  removal  of  the  administrator  put  it 
out  of  the  power  of  appellee  to  sue  under  the  provisions  of  said 
Sec.  6,  Chap.  40,  Rev.  Stat.  His  remedy  was,  therefore,  by  an  action 
in  equity  against  the  heirs  alone.  Ellis  v,  Gosney's  Heirs,  i  J.  J. 
Marsh.  346. 

As  his  remedy  is  in  equity,  and  as  the  heirs  at  law  are  both  in- 
fants, the  chancellor  should  not  subject  them  to  the  hardships  of 
having  any  real  estate  that  may  have  descended  to  them,  seized  and 
sold  under  execution.  By  reason  of  their  non-age,  they  have  not  the 
legal  capacity  to  pay  or  repay  the  judgment,  nor  to  superintend  the 
sale,  nor  to  redeem,  in  case  their  lands  be  sold  for  less  than  two- 
thirds  the  appraised  value. 

The  court  should  have  transferred  the  case  to  the  equity  side  of  the 
docket,  and  the  appellee  have  been  required  to  amend  his  petition  and 
set  out  the  estate  he  desired  to  subject  to  the  payment  of  his  debts, 
and  it  should  be  sold  by  the  chancellor,  through  his  commissioner,  and 
not  turned  over  to  the  sheriff.  Hasan's  Heirs  v.  Patterson,  Mss. 
Opinion,  summer  term,  1874.  In  this  case  the  want  of  assets  or  es- 
tates discovered,  is  alleged  by  the  appellants.  There  is  no  proof  on 
the  issue  thus  raised.  It  was,  therefore,  error  to  render  the  judgment. 
It  is  reversed  and  the  cause  remanded.  Appellee  should  be  allowed  to 
amend  if  he  desires  to  do  so.  In  such  case  further  proper  proceed- 
ings will  be  had. 

W,  H.  Calvert,  for  appellants. 


Albert  G.  Hawes,  et  al.,  v,  Mathew  Garrison's  Devisees.     261 

Albert  G.  Hawes,  et  al.,  v,  Mathew  Garrison's  Devisees. 

Infants— Real  Estate— Power  of  Trustee  to  Sell— Purchaser. 

A  trustee  when  empowered  to  do  so  may  sell  the  real  estate  of 
minors,  without  the  intervention  of  the  chancellor. 

Purchaser. 

The  purchaser  of  the  real  estate  of  minors,  sold  hy  a  trustee,  is  not 
required  to  see  to  it  that  the  purchase  money  is  properly  applied. 

appeal  from  LOUISVILLE  CHANCERY  COURT. 

December  15,  1874. 

Opinion  by  Judge  Cofer  : 

It  was  decided  in  Lev^s,  et  al.,  v.  Harris,  et  al,,  4  Met.  353,  that 
the  rights  and  powers  of  trustees  with  reference  to  estates  held  for 
the  separate  use  of  married  women,  were  not  affected  by  Sec.  17, 
Art.  4,  Chap.  33,  of  the  Rev.  Stat. ;  and  as  before,  a  trustee  might, 
when  so  empowered  by  the  writing  creating  the  trust,  sell  such  estate 
without  the  intervention  of  the  chancellor,  and  he  may  do  so  now. 
That  case  is  decisive  of  the  question  of  the  trustee's  power  to  sell 
the  land  in  contest  in  this  case. 

So  far  as  the  children  of  Mrs.  Thorckmorton  are  concerned,  the 
trustee  had  a  clear  power  to  sell,  and  his  deed  passed  whatever  in- 
terest they  had  in  the  land ;  and  we  concur  with  the  chancellor  that 
Sec.  23,  Chap.  106,  Rev.  Stat.,  relieved  the  purchaser  from  all  re- 
sponsibility for  the  reinvestment  of  the  proceeds  of  the  sale. 

The  construction  contended  for  by  counsel  for  the  appellants 
would  restrict  the  operation  of  that  section  within  much  narrower 
limits  than  seems  to  be  required  by  the  language  employed  and  the 
mischief  intended  to  be  remedied  by  its  adoption.  The  statute  seems 
never  to  contemplate  that  the  purchaser  shall  be  bound  to  look  to 
the  application  of  the  purchase  money,  except  he  is  expressly  re- 
quired to  do  so  by  the  conveyance  or  devise  by  which  the  trust  is 
created. 

Indeed,  we  incline  to  the  opinion  that  independent  of  the  statute, 
the  purchaser  would  not  have  been  bound  to  look  to  the  application 
of  the  purchase  money.  Sims  v.  Lively,  14  B.  Mon.  348. 

Conceiving  no  error  to  the  prejudice  of  the  appellants,  the  judg- 
ment is  oMrmed, 

Lee  &  Rodman,  for  appellants. 
/.  S.  Pirtle,  for  appellees. 


262  Kentucky  Opinions. 

E.  J.  OvERBY  V.  Edna  Curry,  et  al. 

Real  Estate — ^Adverse  Possession — ^Husband  and  Wife. 

Where  the  wife  acquires  title  and  possession  of  real  estate,  the  fact 
that  she  was  married  did  not  Test  the  husband  with  any  possession 
that  could  ripen  into  title  in  himself  adverse  to  the  claim  of  the  wife. 

APPEAL  FROM  CALDWELL  CIRCUIT  COURT. 

December  16,  1874. 

Opinion  by  Judge  Pryor: 

Tile  lots  in  controversy  were  in  the  possession  of  Holmes,  through 
whom  the  appellee,  Edna  Curry,  claims  to  have  derived  title,  as  early 
as  the  year  1851.  The  ground  enclosed  by  Holmes  included  lots  34, 
35,  46  and  47,  a  part  of  lot  No.  46  belonging  to  one  Lindsey,  who 
after  the  death  of  Holmes  conveyed  to  Mrs.  Curry.  These  lots  in 
controversy,  34  and  35  being  enclosed  with  the  lots  in  the  possession 
of  Holmes,  and  in  his  actual  possession  at  his  death,  were  known  as 
one  lot,  and  called  by  scMne  the  Holmes  lot.  Such  lot,  however,  was 
plainly  marked  and  designated  on  the  plat  of  the  town.  Holmes,  at 
his  death,  devised  this  lot,  describing  the  property  it  adjoined,  to 
Mrs-  Curry,  who  at  the  time  was  in  the  possession  and  claimed  to 
own,  hold  and  possess  in  the  same  manner,  and  has  been  in  the  con- 
tinued possession  since  the  device.  She  claims  to  hold  under  Holmes ; 
and  to  adjudge  that  it  was  in  the  husband's  possession,  would 
be  to  make  him  an  adverse  claimant  against  his  own  wife.  If  the 
husband  had  taken  the  possession  in  his  own  right,  by  entering  upon 
the  lot  under  a  claim  of  title  in  himself,  then  the  possession  could 
not  be  said  to  have  been  in  the  wife ;  but  in  this  case  the  wife  ac- 
quired the  title  and  entered  into  the  possession  under  it;  and  the 
fact  that  she  was  a  married  woman  did  not  vest  the  husband  with 
any  possession  that  could  ripen  into  a  title  in  himself  adverse  to  the 
claim  of  the  wife.  The  husband,  in  this  case,  never  asserted  any 
title  in  himself,  or  any  other  possession  than  that  acquired  by  the 
title  in  his  wife,  and  this  possession  only  strengthened  her  title. 
Young,  et  ai,  v.  Adams,  14  B.  Mon.  102 ;  Kirk  v.  Nichols's  Heirs, 
2  J.  J.  Marsh.  469. 

The  judgment  dismissing  appellant's  petition  was  proper.  Judg- 
ment aflirmed.  Opinion  modified  by  erasing  three  lines  on  first  page 
of  original  opinion. 

Calvert  &  Morrow,  for  appellant, 
Richard  Syles,  for  appellees. 


Benjamine  Stinnet  v.  John  Lowney,  et  al.  263 

Benjamine  Stinnet  v.  John  Lowney,  et  al. 

Bill  of  Sale  of  Personal  Property — Fraud  of  Creditors. 

The  sale  of  chattels,  in  the  possession  of  a  third  party,  who  has  the 
right  for  a  limited  time  to  hold  it,  is  not  fraudulent;  nor  is  such  sale  of 
a  growing  crop  fraudulent  where  the  possession  is  retained  by  the  ven- 
dor. A  sale  of  one's  interest  in  a  chattel  owned  with  another,  who 
has  possession  either  in  himself  or  a  Joint  possession  with  the  vendor, 
is  not  in  fraud  of  creditors. 

APPEAL  FROM  LOOAN  CIRCUIT  COURT. 
December  16,  1874. 

Opinion  by  Judge  Pryor: 

The  writing  exhibited  with  appellant's  petition  evidences  a  sale 
of  McMillen's  tobacco  then  in  his  barn,  to  the  appellant,  to  be  taken 
possession  of  when  the  latter  saw  proper  to  send  for  it.  The  contract 
further  recites  that  the  tobacco  was  at  the  time  delivered  in  the  ven- 
dor's bam.  The  facts  are,  that  the  appellant  never  removed  the  to- 
bacco from  the  barn,  and  whilst  there  the  crop  was  levied  upon  by 
the  sheriff  under  an  execution  against  the  vendor,  McMillian.  The 
appellant,  in  order  to  avoid  this  levy  by  the  officers,  the  creditor 
maintaining  that  as  the  actual  possession  of  the  tobacco  was  not  de- 
livered at  the  time  of  the  sale,  it  was  fraudulent  as  to  him,  has  at- 
tempted to  show  that  a  constructive  possession  was  all  that  could 
be  acquired,  by  proving  that  the  tobacco  was  in  such  condition  when 
sold,  as  to  prevent  a  delivery  without  injuring  the  crop,  or  greatly 
lessening  its  value.  It  was  doubtless  too  dry  on  the  day  it  was  pur- 
chased to  be  handed  without  damaging  it,  but  this  fact  does  not 
bring  it  without  the  rule,  and  it  is  only  in  cases  where  the  thing  sold 
is  not  susceptible  of  delivery  that  the  exception  is  made.  There 
could  be  no  fixed  rule  in  the  application  of  the  principle  involved, 
if  the  mere  fact  of  injury  to  the  article  sold,  if  removed,  constituted 
the  exception.  The  quantum  of  damage  it  must  sustain,  or  the  char- 
acter of  injury  producing  the  damage  in  removing,  would  be  so  in- 
definite and  uncertain,  that  if  regarded  at  all,  must  result  practically, 
at  least,  in  abolishing  the  doctrine  that  actual  possession  must  ac- 
company such  sales  in  order  to  defeat  the  claims  of  creditors.  We 
think  there  is  nothing  in  this  view  of  the  case  taken  by  counsel,  al- 
though presented  in  a  very  plausible  manner. 

The  evidence,  however,  shows  that  the  tobacco  sold  to  appellant 
was  a  portion  only  of  a  joint  crop  owned  by  the  father  and  son,  the 
son  owing  the  one-third  arid  the  father  the  remainder.  The  crop  was 


264  Kentucky  Opinions. 

in  the  tobacco  house,  undivided,  on  the  29th  of  December,  1871, 
when  soldi  to  the  appellant.  The  father  and  son  lived  on  the  same 
farm,  and  the  possession  of  the  one,  so  far  as  the  tobacco  was  con- 
cerned, was  the  possession  of  the  other.  They  were  joint  owners, 
and  one  had  no  right  to  sell  to  satisfy  his  own  debt,  the  interest  of 
the  other ;  yet  he  might  dispose  of  his  own  interest,  and  when  sold, 
the  title  vested  in  the  purchaser ;  but  with  no  right  to  enter  and  take 
possession  of  the  whole  crop  without  the  consent  of  the  joint  owners. 
There  was  a  constructive  delivery  on  the  day  of  sale,  and  all  the 
title  having  passed  out  of  McMillian,  the  actual  possession  was  then 
in  the  son,  who  held  as  the  bailee  of  the  vendee. 

In  this  case  the  son  of  the  vendor  was  directed  by  the  appellant 
to  sell  the  tobacco  for  him.  He  was  acting  as  the  agent  for  the 
appellant,  and  had  the  actual  possession  of  the  tobacco.  When  this 
agency  was  created  does  not  appear,  nor  is  it  material  in  this  case, 
as  when  the  sale  was  made  divesting  the  vendor  of  his  interest  in 
the  tobacco,  the  possession  of  the  other  joint  owner  was  the  posses^ 
sion  of  the  purchaser.  The  sheriff  had  no  right  to  take  the  posses- 
sion of  the  crop  and  sell  it.  He  might  have  sold  the  interest  of  the 
debtor  in  the  crop;  and  if  the  execution  was  in  his  hands  in  full 
force  prior  to  the  sale  made  to  appellants,  it  created  a  lien  that  would 
give  priority  over  the  purchaser.  The  execution  is  not  part  of  the 
record,  and  therefore  this  question  cannot  be  determined.  A  sale 
of  a  growing  crop,  and  the  possession  retained  in  the  vendor,  is  not 
fraudtilent  as  to  creditors,  for  the  reason  that  it  is  not  susceptible 
of  delivery.  The  sale  of  a  chattel  in  the  possession  of  a  third  party, 
who  has  the  right  for  a  limited  time  to  hold  it,  is  not  fraudulent 
for  the  same  reason.  Robinson  v.  Oldham^,  i  Duvall  28;  Butt  v, 
Caldwell,  4  Bibb  458;  Daniel,  et  al,  v.  Morrison's  Ex'r,  et  aL,  6 
Dana  182. 

So  a  sale  of  one's  interest  in  a  chattel  owned  with  another,  who 
has  the  possession  either  in  himself,  or  a  joint  possession  with  the 
vendor,  is  not  fraudulent  as  to  creditors,  for  the  actual  possession 
is  then  with  the  joint  owner  retaining  his  interest,  and  he  holds  for 
the  vendee.  The  question  as  to  the  action  of  the  court  in  granting 
a  new  trial  cannot  arise  on  the  record. 

It  may  be  that  the  verdicts  first  returned  were  against  the  evi- 
lence,  and  this  being  one  of  the  grounds  relied  on,  and  the  evidence 
not  in  the  record,  this  court  cannot  determine  that  the  court  erred 
in  granting  a  new  trial.  The  peremptory  instruction  should  not  have 
been  given. 


W.  A.  Herrel  v.  J.  O.  Porter,  et  al.  265 

The  judgment  is  reversed  and  cause  remanded  with  directions  to 
award  the  appellant  a  new  trial,  and  for  further  proceedings  con- 
sistent with  this  opinicwi. 

Caldwell  &  Browder,  for  appellant. 

J,  H.  Bowden,  Charles  S,  Grubbs,  for  appellees. 


W.  A.  Herrel  v.  J.  O.  Porter,  et  al. 

Pleading — ^Adverse  Possession  of  Coal  Lands. 

The  statement  in  a  pleading  that  the  pleaders  are  the  heirs  of  a 
named  person,  is  but  a  conclusion.  The  pleaders  should  aver  the 
death  of  the  ancestor  and  their  relation  to  him,  so  that  the  court  may 
determine  whether  they  are  heirs  or  not. 

Adverse  Possession.* 

Where  the  surface  of  land  is  owned  by  one  party  and  the  coal  be- 
neath by  another,  mere  possession  by  the  surface  owner  is  not  adverse 

to  the  owner  of  the  coal,  unless  there  be  some  right  asserted  by  the 
surface  owner  of  such  a  character  as  to  warrant  the  presumption  that 
it  was  known  or  should  have  been  known  by  those  owning  the  coal. 

APPEAL  FROM  BUTLER  CIRCUIT  COURT. 

December  16,  1874. 

Opinion  by  Judge  Cofer  : 

The  appellees  allege  that  they  are  heirs  of  V.  M.  Porter,  but  this 
is  a  mere  conclusion  of  law.  Lame,  et  al,  v.  Hays,  et  al.,  7  Bush  50, 
and  authorities  there  cited.  But  the  petition  also  contains  an  allega- 
tion that  they  are  the  owners  of  the  coal  reservation  sued  for,  and 
if  it  had  stopped  there,  it  would  have  been  good. 

But  reference  is  made  in  the  petition  to  a  deed  from  Work  and 
Porter  to  Martin,  for  the  land  under  which  the  coal  is  situated,  and 
this  deed  being  made  a  part  of  the  petition,  and  the  reservation  of 
the  coal  therein  made  being  the  foundation  of  the  appellees'  claim,  it 
appears  from  the  petition  that  the  title  to  the  coal  was  then  in  Work 
and  Porter.  Having  shown  this,  the  petition,  to  be  good,  should 
have  shown  how  the  appellees  became  invested  with  the  title  thus 
shown  to  have  been  in  Work  and  V.  M.  Porter,  and  having  failed  to 
show  this,  or  to  attempt  to  do  so  except  by  the  allegation  that  the 
appellees  are  heirs  of  V.  M.  Porter,  the  petition  is  insufficient.  They 
should  have  alleged  Porter's  death  and  the  relation  they  bore  to  him, 
and  then  the  court  could  have  decided  whether,  as  matter  of  law, 


266  Kentucky  Opinions* 

they  were  heirs  of  V.  M.  Porter.  Failing  in  this,  the  petition  is 
fatally  defective. 

If  Martin  sold  and  conveyed  the  land  without  reserving  the  coal, 
as  was  done  in  his  deed  from  Work  and  Porter,  and  his  vendees, 
immediate  and  remote,  entered  on  the  land  under  deeds  purporting 
to  convey  the  whole  estate  in  it,  and  held  and  claimed  it  for  fifteen 
years  adversely  to  all  others,  the  statute  of  limitations  presents  a  bar 
to  the  right  of  the  appellees,  unless  they  are  within  some  of  the  sav- 
ings in  the  statute.  But  as  appellant  owned  the  surface,  and  others 
seem  to  have  owned  the  underlying  coal,  his  possession  was  not  ad- 
verse to  the  owners  of  the  coal  until,  by  some  open  and  notorious  act, 
he  manifested  his  intention  to  claim  the  whole  estate  in  the  land.  If 
he  entered  under  a  deed  purporting  to  convey  the  whole  estate  in 
the  land,  and  put  it  upon  record,  this  was  such  an  act  as  would  ordi- 
narily be  prima  facie  evidence  of  an  intention  to  claim  the  whole, 
and  his  possession  would  thence  forward  be  adverse  to  the  owners 
of  the  coal.  But  the  mere  possession  and  claim  of  the  surface  was 
amicable,  until  some  act  done  indicating  an  intention  not  to  hold 
amicably ;  and  an  act  to  be  effectual  for  that  purpose  must  have  been 
of  such  character  as  would  warrant  the  presumption  that  it  was 
known,  or  should  have  been  known  by  those  owning  the  coal.  There 
is  nothing  in  this  record  from  which  an  adverse  holding  can  be  in- 
ferred, but  both  parties  should  be  allowed  to  amend  their  pleadings 
if  they  offer  to  do  so  within  a  reasonable  time,  and  to  make  further 
preparation. 

The  appellee,  Elvis  Porter,  does  not  seem  to  be  a  party  in  the  cap- 
tion to  the  petition,  and  is  not,  therefore,  a  party  to  the  suit. . 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
not  inconsistent  with  this  opinion. 

B.  L,  D.  Guffy,  John  L.  Scott,  for  appellant. 
M.  J.  Porter,  for  appellee. 


Samuel  Lusks  v.  D.  M.  Anderson  and  Wife. 

Decedents*  Estates— Competency  of  Witnesses. 

Deylsees  are  competent  as  witnesses  In  a  contest  between  the  execu- 
tor and  a  third  party  asserting  a  claim  against  the  estate. 


Samuel  Lusks  v,  D.  M.  Anderson  and  Wife.  267 

Competency  of  Witnesses. 

A  party  to  the  action  against  the  executor  is  not  allowed  to  testify, 
except  as  to  facts  occurring  after  the  death  of  the  decedent,  unless  the 
personal  representative  should  call  on  such  witnesses  to  testify  as  to 
transactions  or  conversations  occurring  with  the  decedent  prior  to  his 
death. 

APPEAL  FROM  GARRARD  CIRCUIT  COURT. 

December  17,  1874. 

Opinion  by  Judge  Pryor  : 

There  is  nothing  in  the  chapter  on  evidence,  General  Statutes,  ren- 
dering the  devisees  incompetent  as  witness  in  a  contest  between  the 
executor  and  a  third  party  asserting  a  claim  against  the  estate.  A 
party  to  the  action  against  the  executor  is  not  allowed  to  testify,  ex- 
cept as  to  facts  occurring  after  the  death  of  the  decedent  or  parent, 
unless  the  personal  representative  should  call  cwi  witnesses  to  testify 
as  to  transactions  or  conversations  occurring  with  the  testator  or 
decedent  prior  to  his  death,  etc.  In  that  event,  the  party  to  the  ac- 
tion may  also  testify  as  to  such  specific  transactions  or  private  con- 
versations. In  this  case  the  devisees  were  introduced  to  prove  the 
delivery  of  the  property  to  the  appellee  by  the  testator,  from  which 
the  jury  might  have  inferred  that  it  was  delivered  in  satisfaction  of 
the  debt,  and  also  offered  to  prove  by  these  witnesses  the  declara- 
tions of  the  testator  as  to  the  purpose  in  view  in  giving  this  prop- 
erty to  the  daughter,  viz.,  "that  it  was  in  satisfaction  of  the  debt."    ^ 

These  declarations,  made  by  the  testator  in  his  behalf,  were  incom- 
petent, regardless  of  the  statute,  and  all  that  was  competent,  the  ap- 
pellee in  her  testimony  admitted  to  be  true,  viz.,  that  she  received  the 
horse,  colt,  money,  etc.  Therefore  the  appellant  has  no  right  to  com- 
plain. The  appellant,  on  cross-examination  made  the  appellee  his 
witness,  and  established  by  her  the  reception  of  the  property  from 
her  father;  but  the  witness  went  further  and  stated  that  it  was  in 
consideration  of  the  debt  declared  on.  This  witness  being  a  party 
to  the  action,  and  prosecuting  it  for  the  recovery  of  money  to  which 
she  was  entitled,  was  not  competent  to  prove  these  facts  unless  called 
on  to  make  the  statements  by  the  adverse  party,  the  executor.  She 
was  examined  in  her  own  behalf,  to  testify  only  as  to  a  conversation 
between  herself  and  another  witness  introduced  by  the  appellant  for 
the  purpose  of  contradicting  that  witness,  and  the  appellant  then 
making  her  his  witness  as  to  facts  occurring  before  the  death  of  her 
father,  must  abide  by  the  consequences.    Besides,  appellant  proved 


268  Kentucky  Opinions. 

by  William  Lusk  the  delivering  of  this  same  property  to  the  appel- 
lee, and  the  jury  had  before  them  all  the  facts  that  they  could  legiti- 
mately hear.  The  husband  could  not  testify  against  the  wife,  nor 
were  his  declarations  that  the  money  had  been  paid  her,  competent 
upon  the  issue  made. 
Judgment  affirmed. 

George  W.  Dunlap,  for  appellant. 
Burdett  &  Hopper,  for  appellees. 


R.  H.  Kelly  v.  N.  J.  Kelly. 

Marriage — ^Annulment. 

A  suit  to  annul  a  marriage  obtained  by  force  or  fraud  cannot  be 
sustained  by  only  the  admission  of  the  defendant. 

APPEAL  PROM  TODD  CIRCUIT  COURT. 

December  18,  1874. 

Opinion  by  Judge  Cofer  : 

While  a  suit  to  annul  a  marriage  obtained  by  force  or  fraud  is  not 
a  suit  for  a  divorce,  and  does  not  therefore  fall  within  the  letter  of 
Sec.  3,  Art.  3,  Chap.  52,  of  the  General  Statutes,  which  enacts  that 
"no  petition  for  a  divorce  shall  be  taken  for  confessed,  or  be  sus- 
tained by  the  admissions  of  the  defendant  alone,  but  must  be  sup- 
ported by  other  proof,"  yet  such  suit  does  fall  within  the  obvious 
scope  and  intention  of  the  statute,  and  should  for  the  most  weighty 
reasons  be  held  to  be  embraced  by  it.  The  manifest  purpose  of  the 
statute  was  to  prevent  parties  dissatisfied  with  their  marriage  rela- 
tions, from  obtaining  judgment  of  separation  by  collusion.  If  by 
changing  the  form  of  the  action,  and  alleging  fraud  or  force  in  ob- 
taining the  marriage,  the  plaintiff  would  be  entitled  to  a  judgment 
annulling  the  marriage  relation,  unless  the  allegations  of  the  petition 
are  denied,  the  road  would  be  open  to  that  influx  of  divorce  suits 
which  in  some  states  has  been  found  so  prejudicial  to  good  morals, 
social  order,  and  the  peace  and  happiness  of  families.  It  has  long 
been  the  settled  policy  of  both  the  legislature  and  judicial  depart- 
ments of  the  government  of  this  state,  to  discourage  proceedings  for 
dissolving  the  marriage  relation,  and  to  grant  divorces,  and  annul 
marriages  only  when  it  appeared  by  evidence  brought  before  the 
court,  that  there  were  sufficient  reasons  for  so  doing. 


H.  G.  Petree  v.  G.  Terry.  269 

The  appellant  not  only  alleges  the  marriage  of  himself  and  the 
appellee,  but  he  files,  as  a  part  of  his  petition,  certified  copies  of  the 
license  for  and  certificate  of  his  marriage,  and  although  the  facts 
alleged,  if  proved,  would  have  entitled  him  to  a  judgment  declaring 
the  marriage  void,  yet,  as  they  were  not  proved,  the  chancellor  prop- 
erly refused  to  take  the  petition  pro  confesso,  and  the  judgment  dis- 
missing it  is  affirmed, 

S,  W,  Kennedy,  for  appellant. 
H.  T.  Willoughby,  for  appellee. 


H.  G.  Petree  v,  G.  Terry. 


Husband  and  Wife. 

The  husband  is  entitled  to  the  earnings  of  his  wife  and  to  the 
products  of  her  lands,  in  the  absence  of  any  ante-nuptial  contract. 

APPEAL  FROM  TODD  CIRCUIT  COURT. 

December  18,  1874. 

Opinion  by  Judge  Peters  : 

It  does  not  appear  that  the  tobacco  was  not  grown  on  the  land  of 
Mrs.  Waters,  to  the  products  of  which  her  husband  was  entitled. 
It  does  appear  that  dower  has  not  been  assigned  her  out  of  the  real 
estate  of  her  former  husband,  and  as  it  is  proved  that  she  is  acting 
as  guardian  for  her  children,  all  of  whom  are  minors,  it  may  be  at- 
tributed to  her  own  delinquency  that  the  land  of  her  wards  has  not 
been  set  apart  to  them.  The  husband  is  entitled  to  the  earnings  of 
his  wife,  and  in  this  case  he  is  entitled  to  the  product  of  her  lands, 
as  she  has  not  a  separate  estate  in  them.  The  children  of  the  for- 
mer marriage  lived  in  the  family,  and  if  they  labored,  and  their  serv- 
ices were  worth  more  than  their  support,  they  or  their  guardian 
must  look  to  him  for  whom  their  services  were  rendered  for  com- 
pensation. 

There  is  no  evidence  of  an  ante-nuptial  contract,  nor  of  any  con- 
tract sufficient  to  protect  the  earnings  of  the  wife  or  the  products 
of  her  land  from  the  liabilities  of  the  husband.  Nor  does  there  ap- 
pear to  have  been  any  efforts  in  that  way  until  troubles  come ;  and 
then  come  the  earnest  appeals  to  the  courts  for  relief,  which  they 
have  no  power  to  give,  but  which  the  parties  themselves  could  once 
so  easily  have  secured.    If  married  women  desire  to  manage  their 


270  Kentucky  Opinions. 

own  affairs  as  femes  sole,  the  statute  points  out  the  mode  for  them 
to  pursue.  That  right  was  Mrs.  Waters's,  but  she  has  not  possessed 
herself  of  it. 
The  judgment  must  be  affirmed. 

H.  G.  Petree,  G.  Terry,  for  appellant, 
/.  &  /.  W.  Rodman,  for  appellee. 


DuNLAP  Howe's  G'd'n  v.  John  Darnell,  et  al. 

Agency— Evidence. 

The  mere  fact  that  one  who  is  a  son-in-law  sometimes  transacts 
business  for  his  father-in-law  is  not  sufficient  to  raise  an  inference  that 
an  agreement  for  forbearance  made  by  him  was  in  fact  made  as  the 
agent  of  the  father-in-law  who  owned  the  note. 

APPEAL  FROM  FLEMING  CIRCUIT  COURT. 

December  19,  1874. 

Opinion  by  Judge  Cofer: 

The  only  question  in  this  record  in  any  way  affecting  the  merits 
of  the  case,  is  whether  an  agreement  for  forbearance  was  actually 
made  by  any  one  having  authority  to  make  it.  If  any  such  agree- 
ment was  made  at  all,  it  was  made  by  Gotherman  with  Dr,  Yantis, 
who  had  no  interest  in  the  note,  and  whose  agreement,  if  binding, 
must  be  binding  on  the  ground  that  he  was  the  agent  of  Howe, 
and  as  such  had  authority  to  make  the  agreement. 

Yantis  is  Howe's  son-in-law,  and  sometimes  attended  to  busi- 
ness for  him,  and  had  the  note  in  his  possession,  and  left  it  with 
D.  Wilson  &  Company,  bankers,  for  collection,  or  for  the  payment  of 
the  interest,  and  to  be  sued  on  unless  the  interest  was  paid.  ^ 

If  it  be  conceded  that  Yantis  did  make  the  alleged  agreement  with 
Gotherman  to  forbear  to  sue,  if  interest,  at  the  rate  of  lo  per  cent, 
was  paid  up  to  date,  and  also,  that  such  an  agreement,  if  made  by 
Howe,  or  by  Yantis,  with  authority  from  Howe,  would,  if  made 
without  the  assent  of  the  appellees,  have  released  them,  we  are  still 
of  opinion  that  the  court  erred  in  dismissing  appellant's  petition  as 
to  them,  because  there  is,  in  our  opinion,  no  sufficient  evidence  that 
Yantis  had  authority  to  make  the  agreement. 

There  is  no  proof  or  attempt  to  prove  express  authority  to  Yantis 
to  make  the  agreement ;  and  if  he  had  authority  it  must  be  inferred 


James  Graham  z\  J.  R.  Moore  and  Wife.  271 

from  the  fact  that  he  was  Howe's  son-in-law,  and  sometimes  trans- 
acted business  for  him,  and  had  this  particular  note  in  his  hands  for 
collection,  and  that  his  act  in  receivings  the  money  from  Gotherman 
was  ratified  by  Howe.  The  only  legitimate  inference  from  the  facts 
that  Yantis  had  the  note  and  that  Howes  ratified  the  collection  made 
by  him,  is  that  he  had  authority  to  collect  the  whole  or  any  part  of 
the  note.  It  would  be  going  too  far  to  presume  from  the  fact  that 
Yantis  was  the  son-in-law,  and  sometimes  transacted  business  for 
Howe,  without  any  evidence  as  to  the  kind  of  business,  that  he 
had  authority  to  make  the  alleged  agreement.  This  conclusion  on 
the  facts,  renders  it  unnecessary  that  we  should  consider  other  ques- 
tions made  by  the  appellants. 

The  judgment  dismissing  the  petition  as  to  the  appellees.  Harper 
and  Darnall,  is  reversed,  and  the  cause  is  remanded  with  directions 
to  render  judgment  against  them  for  the  amount  of  the  note,  subject 
to  an  additional  credit  for  $20.60,  as  of  date  January  31,  1872,  being 
the  excess  they  paid  over  legal  interest  to  that  date. 

William  S.  Botts,  for  appellant. 
E.  C.  Phister,  for  appellees. 


James  Graham  v.  J.  R.  Moore  and  Wife. 

Willfr— Title  to  Real  Estate. 

Where  It  is  provided  in  a  will  that  "the  real  estate  herein  devised 
to  said  Lee  Ann  Smith,  now  Moore,  I  direct  in  case  of  marria^^e,  to  he 
entirely  free  from  the  control  or  disposition  of  her  husband,  and  not 
in  any  way  subject  to  his  debts,"  the  devisee,  after  marriage,  her  hus- 
band Joining  with  her,  may  convey  all  the  title  of  the  devised  real  es- 
tate to  her  purchaser. 

APPEAL  FROM  WARREN  CIRCUIT  COURT. 

December  19,  1874. 

Opinion  by  Judge  Pryor  : 

The  fifth  clause  of  Bumam's  will  provided  that  **the  real  estate 
herein  devised  to  said  Lee  Ann  Smith,  now  Moore,  I  direct,  in  case 
of  marriage,  to  be  entirely  free  from  the  control  or  disposition  of 
her  husband,  and  not  in  any  way  subject  to  his  debts."  Lee  Ann 
Smith,  the  devisee,  having  married  John  R.  Moore,  her  husband  and 
herself  have  united  in  a  deed  to  the  appellant  for  a  part  of  the  real 
estate  devised  to  her  under  the  9th  clause  of  the  will ;  and  the  ap- 


272  Kentucky  Opinions. 

pellant  claims  that  by  reason  of  this  provision  of  the  will  they  are 
unable  to  make  title.  By  an  act  concerning  separate  estates  of  mar- 
ried women,  approved  January  16,  1868,  it  is  provided  in  substance 
that  where  separate  estate  is  conveyed  or  devised  to  a  married 
woman  for  her  separate  use,  without  the  intervention  of  a  trustee, 
and  without  any  restriction  upon  the  sale  or  conveyance  thereof  dur- 
ing coveture,  the  right  of  said  married  woman  to  sell  and  convey 
the  property  should  be  the  same  as  if  the  said  property  had  been 
conveyed  or  devised  to  her  absolutely,  without  any  separate  use  be- 
ing expressed;  but  her  separate  use  shall  continue  in  the  proceeds 
of  such  sale.  See  General  Statutes,  page  532.  If  this  devise  be 
regarded  as  passing  to  Mrs.  Moore  a  separate  estate,  and  we  are 
of  the  opinion  it  does,  it  is  clear  that  the  husband  and  wife,  by  rea- 
son of  the  act  referred  to,  can  make  to  the  appellant  title,  and 
whether  regarded  as  general  or  separate  estate,  all  the  title  the  wife 
acquired  by  the  will  passed  by  the  deed,  and  the  purchaser  must 
pay  the  money. 

One  of  the  notes  by  its  stipulations  makes  the  interest  payable  an- 
nually, and  the  question  is  whether  interest  shall  run  upon  this  inter- 
est from  the  time  it  was  payable,  or  whether  it  then  becomes  a  part 
of  the  principal. 

The  court  is  equally  divided  in  opinion  on  this  branch  of  the 
case,  and  the  judgment  of  the  court  below  is  therefore  affirmed  on 
both  the  original  and  cross-appeal. 

No  damages  will  be  awarded,  as  these  parties  have  agreed  as 
to  the  amount  to  be  paid  in  lieu  of  damages,  as  appears  by  an  en- 
dorsement on  the  record,  and  this  is  left  for  appellee  to  enforce. 

Mines  &  Porter,  for  appellant. 
H.  T.  Clark,  for  appellees. 


P.  C.  Ross  V.  E.  A.  G.  Ross. 


Husband  and  Wife— Note  of  the  Wife  to  Husband. 

The  note  of  a  married  woman  does  not  bind  her  personally.  It  can- 
not bind  her  personal  estate  unless  signed  by  herself  and  husband  and 
executed  for  necessaries  for  herself  or  family. 

Note  of  Wife  to  Husband. 

Where  a  note  Is  executed  by  the  wife  to  the  husband,  to  be  enforced 
there  must  be  some  contract  back  of  It  authorizing  the  chancellor  to 
interfere  to  prevent  a  fraud  or  great  wrong  to  the  husband.  The  note 
itself  in  such  a  case  does  not  evidence  a  consideration. 


p.  C.  Ross  V.  E.  A.  G.  Ross.  273 

Note  of  ¥nfe  to  Husband. 

If  at  all,  it  is  only  in  exceptional  cases  when  the  note  of  a  married 
woman  can  be  made  the  foundation  of  an  action  in  favor  of  her  hus- 
band. 

APPEAL  FROM  McCRACKBN  CIRCUIT  COURT 

December  19,  1874. 

Opinion  by  Judge  Lindsay  : 

The  ground  relied  on  by  appellee  and  cross-appellant,  for  obtain- 
ing a  divorce,  is  that  her  husband  had,  prior  to  the  filing  of  her 
original  petition,  behaved  towards  her  for  more  than  six  months  in 
such  a  cruel  and  inhuman  manner,  as  to  indicate  a  settled  aversion 
to  her,  and  to  destroy  permanently  her  peace  and  happiness. 

The  evidence  does  not  show  that  the  parties  lived  together  as 
harmoniously  and  affectionately  as  could  have  been  desired.  Ap- 
pellant was  not  free  from  blame,  but  no  such  conduct  upon  his  part 
is  proved,  as  would  authorize  the  granting  of  the  relief  sought.  In- 
compatibility of  temper,  dissimilarity  of  taste,  and  want  of  af- 
fection upon  the  part  of  both  parties,  are  pretty  conclusively  estab- 
lished; but  the  ground  for  divorce  set  out  in  the  petition  is  not 
made  out. 

The  scene  at  the  hotel,  after  the  divorce  suit  had  been  commenced, 
so  graphically  described  in  the  pleadings,  was  brought  about  by  the 
disregard  by  the  appellee  of  the  order  of  court,  and  appellant  seems 
to  have  used  no  more  violence  than  was  necessary  to  protect  his 
person  from  the  assaults  of  his  wife. 

The  petition  for  divorce  was  properly  dismissed,  and  the  judg- 
ment upon  the  cross-appeal  is  affirmed.  Appellant  complains  that 
the  chancellor  erred  in  refusing  to  afford  him  relief  on  account  of 
the  note  for  $8,000  bearing  date  April  6,  1865.  The  note  of  a  mar- 
ried woman  does  not  bind  her  personally.  It  does  not  bind  her 
general  estate  unless  signed  by  herself  and  husband,  and  executed 
for  necessaries  for  herself  or  family. 

Mrs.  Ross  had  no  separate  estate  of  any  kind  when  the  note  was 
executed.  Her  separate  estate  in  the  property  she  owned  in  April, 
1865,  was  not  called  into  existence  until  January  30,  1866,  when 
the  act  of  the  legislature  authorizing  her  to  do  business  as  a  feme 
sole,  and  giving  to  her  the  sole  and  exclusive  control  of  her  said 
property,  was  passed  and  approved.  There  is  nothing  in  this  act 
indicating  an  intention  to  make  valid  and  binding  upon  Mrs.  Ross 
or  her  property,  acts  or  contracts  which  theretofore  did  not  bind 

18 


274  Kentucky  Opinions. 

the  one  or  the  other.  If  the  collection  of  said  note  can  be  enforced, 
it  must  be  for  some  reason  authorizing  the  interference  of  the  chan- 
cellor, independent  of  the  general  statutes  relating  to  married 
women,  and  their  rights  and  responsibilities,  and  of  the  special  act 
of  January,  1866. 

Appellant,  in  support  of  her  claim  to  relief,  cites  us  to  the  case  of 
D.  Livingston  v,  M.  &  E.  Livingston,  et  al,  2  John.  Ch.  537.  In 
that  case  it  was  established  that  the  husband  and  wife  agreed  that 
the  husband  should  purchase,  in  the  wife's  name,  a  lot  of  ground, 
and  build  a  house  thereon,  and  that  the  cost  of  erecting  the  new 
house  should  be  paid  out  of  the  proceeds  of  a  house  and  lot  then 
owned  by  the  wife,  she  agreeing  that  the  last  named  house  and  lot 
should  be  sold  for  that  purpose  when  the  new  house  was  completed. 

The  husband  complied  literally  with  his  part  of  the  agreement,  and 
the  wife  dying  suddenly,  before  the  old  house  was  sold,  Chancellor 
Kent  decreed  in  an  action  of  the  surviving  husband  against  the 
infant  children  and  heirs  at  law  of  the  wife,  that  it  should  be  sold, 
and  the  moneys  arising  from  the  sale,  be  brought  into  court  to 
abide  its  further  order.  We  may  assume  that  such  part  of  the 
money  so  invested  as  was  necessary,  was  applied  to  the  payment  of 
the  expense  incurred  in  erecting  the  new  house.  Under  the  cir- 
cumstances of  that  case,  the  agreement  between  the  husband  and 
wife  negatived  the  presumption  of  law  that  otherwise  would  have 
arisen,  that  the  purchase  of  the  lot  in  the  name  of  the  wife,  and 
the  erection  of  the  house,  was  intended  as  an  advancement  and  pro- 
vision for  her. 

The  contract,  although  oral,  was  partly  executed,  which  took  it 
out  of  the  statute  of  frauds  and  perjuries,  as  construed  by  the  New 
York  courts,  and  the  chancellor  decided  that  under  a  New  York  stat- 
ute entitled  "an  act  concerning  infants,"  he  had  the  right  to  enforce 
it.  It  is  very  difficult  from  the  opinion  to  ascertain  the  exact  ground 
upon  which  the  chancellor  rests  his  judgment.  We  assume,  however, 
that  it  was  upon  the  idea  that  his  wife,  if  living  could  not  hold  both 
houses  and  lots,  that  if  she  relied  on  her  coveture  as  a  protection 
against  the  enforcement  of  her  agreement  to  unite  in  the  sale  of  the 
first  house  and  lot,  she  would  not  be  allowed,  in  equity,  to  keep  the 
second,  and  that  her  heirs  at  law  being  merely  volunteers,  occupied 
no  better  attitude  than  their  mother  would  have  done. 

In  the  case  under  consideration,  there  is  no  evidence  whatever 
tending  to  establish  a  contract  of  any  kind  between  Ross  and  his 
wife.    No  explanation  is  given  as  to  the  circumstances  under  which 


p.  C.  Ross  V.  E.  A.  G.  Ross.  275 

the  note  was  executed.  No  consideration  is  proved  or  attempted  to 
be  proved,  and  so  far  as  the  testimony  is  concerned,  the  note  can- 
not be  enforced,  either  at  law  or  in  equity,  without  the  application  to 
the  note  of  married  wpman  to  her  husband,  of  the  rule  of  law,  that 
a  writing  imports  a  consideration.  Of  course,  in  such  a  case,  that 
rule  has  no  application.  The  note  itself  does  not  evidence  an  agree- 
ment of  any  kind,  except  the  promise  by  the  wife  upon  demand  to 
pay  to  the  husband  $8,000,  or  to  give  to  him  the  Wolf  lot.  The  con- 
sideration for  the  promise  is  not  set  out.  To  bring  the  case  within 
the  rule  acted  on  in  Livingston  v.  Livingston,  if  that  case  be  re- 
garded as  a  safe  precedent,  it  was  essential  to  show  an  agfreement  be- 
tween the  husband  and  wife  of  some  kind. 

It  is  not  enough  to  show  that  the  husband  had  permitted  the  wife 
to  invest  personal  estate,  to  which  he  might  have  asserted  claim,  in 
real  estate  and  take  the  title  to  herself.  Such  permission  would 
ordinarily  be  treated  as  an  advancement  to,  or  provision  for  the  wife. 
In  this  case,  the  wife  seems  to  have  been  the  business  partner,  and 
if  not  the  legal  owner,  the  ostensible  owner,  and  the  actual  posses- 
sor and  controller  of  the  personalty.  She  acquired  by  her  industry 
and  management,  the  entire  estate ;  she  always  claimed  it,  and  her 
husband  always  recognized  her  claim;  and  when  she  invested  the 
moneys  so  held  and  claimed  in  realty,  both  the  husband  and  wife 
seemed  to  regard  the  transactions  as  ordinary  and  usual  matters  of 
business. 

It  is  difficult,  therefore,  to  infer  that  the  consideration  for  the  exe- 
cution of  the  note  was  the  consent  by  the  husband,  that  the  wife 
should  do  that  which  the  proof  conduces  to  show  he  all  the  while 
conceded  she  had  the  absolute  and  undoubted  right  to  do,  with  or 
without  his  consent. 

Further  than  this,  appellant  does  not  allege  that  there  was  an 
agreement  of  any  kind,  (other  than  that  set  out  in  the  note)  be- 
tween himself  and  his  wife.  After  reciting  the  facts  that  large  sums 
of  money  had  been  invested  in  realty,  and  the  titles  all  taken  to  his 
wife,  he  says:  "At  this  juncture  of  affairs,  and  to  show  that  defend- 
ant was  not  really  giving  to  his  wife  all  their  means,  and  as  an  evi- 
dence that  he  still  had  an  interest  therein,  and  in  consideration  of 
money  thus  expended  by  him  for  property,  the  title  of  which  was  con- 
veyed to  her,  she  on  April  6,  1865,  executed  to  him  her  individual 
note,"  etc. 

If  the  note  was  to  show  or  to  evidence  an  agreement  between  Ross 
and  his  wife,  the  agreement  itself,  and  not  the  evidence  thereof. 


276  Kjentucky  Opinions. 

should  have  been  pleaded.  The  note  of  a  married  woman  can  be 
made  the  foundation  of  an  action  in  favor  of  her  husband,  if  at  all, 
only  in  exceptional  cases.  This  is  not  one  of  those  cases.  Hence, 
if  the  note  be  only  an  exhibit,  or  an  evidence  of  a  contract  or  agree- 
ment, the  contract  or  agreement  which  must  be  the  foundation  of 
the  action,  should  be  set  out  so  that  the  court  may  determine  whether 
the  evidence  or  exhibit  establishes  its  existence. 

The  next  paragraph  of  the  answer  and  cross-petition  of  December 
II,  1872,  shows  that  the  petition  to  the  legislature  to  have  Mrs.  Ross 
empowered  to  do  business  as  a  feme  sole,  had  no  connection  with  the 
execution  of  the  note.  Appellant  says  that  it  was  about  these  times 
that  that  matter  began  to  be  talked  of  beween  "the  parties." 

But  if  we  have  not  given  to  the  evidence  the  proper  weight,  still, 
under  the  pleadings  in  this  cause,  no  relief  can  be  afforded.  Even 
in  equity,  it  is  only  under  peculiar  circumstances  that  the  husband 
can  have  relief  against  his  wife.  It  is  not  enough  that  to  refuse  re- 
lief will  work  a  great  hardship.  The  right  to  relief  must  be  based 
upon  an  express  promise  or  agreement  by  the  wife,  which  is  un- 
conscientious for  her  to  refuse  to  perform,  and  even  then,  if  the 
property  or  estate  she  may  have  acquired  upon  the  faith  of  the 
promise  can  be  restored,  the  promise  will  not  be  enforced. 

In  this  case  the  party  seeking  relief  does  not  set  up  in  his  plead- 
ings an  express  promise.  He  states  facts  from  which  he  insists  such 
a  promise  may  be  implied.  Such  pleading  would  be  insufficient  in 
any  case,  and  the  rules  will  not  be  relaxed  in  an  action  by  a  hus- 
band against  his  wife. 

Upon  the  whole  case  we  are  of  opinion  that  the  evidence  is  not 
sufficient  to  authorize  the  intervention  of  the  chancellor.  We  are 
further  of  opinion  that  the  pleadings  are  fatally  defective,  and  for 
that  reason  no  relief  could  be  afforded  even  if  the  proof  made  out 
a  case. 

Judgment  affirmed, 

R.  K.  Williams,  for  appellant. 

J,  B.  Husbands,  L,  D,  Husbands,  for  appellee. 


Thomas  Dixon^  et  al.^  v.  Robert  Wallace,  et  al. 

Statute  of  Limitations — Non-Residence  of  Defendant. 

Where  fifteen  years  and  one  month  have  elapsed  from  the  date  of 
the  last  credit  on  a  note  and  a  plea  of  the  statute  of  limitations  is  set 
up,  the  burden  is  on  the  plaintiff  to  avoid  the  operation  of  the  statute. 


Harrison  &  Shelby  v.  W.  O.  Barksdale's  Adm'x.        277 

Non-Residence  of  Defendant. 

Where  a  suit  is  brought  on  a  note  more  than  fifteen  years  after  the 
date  of  the  last  payment  on  it,  and  where  the  defendant  a  part  of  the 
time  resided  out  of  the  state,  but  made  frequent  visits  back  home, 
where  plaintiff  might  have  sued  her,  her  removal  from  the  state  did 
not  suspend  the  running  of  the  statute  of  limitations. 

APPEAL  FROM  FLEMING  CIRCUIT  COURT. 

December  19,  1874. 

Opinion  BY  Judge  Lindsay  : 

From  the  date  of  the  last  credit  on  the  note  sued  on,  up  to  the 
institution  of  this  action,  there  was  a  period  of  fifteen  years,  one 
month  and  a  few  days. 

Mrs.  Wallace  lived  out  of  this  state  for  about  seven  years,  but 
she  frequently  visited  Flemingburg,  and  her  visits  were  open  and 
known  to  the  appellant,  Dixon.  He  might  have  sued  her  on  any 
of  these  visits,  if  he  had  chosen  to  do  so.  Her  removal  from  the 
state  did  not,  as  matter  of  fact,  obstruct  him  in  coercing  the  payment 
of  the  debt  by  legal  proceedings,  and  did  not,  therefore,  suspend  the 
running  of  the  statute.  Ridgeley  v.  Price,  16  B.  Mon.  409.  Dixon 
swears  that  Mrs.  Wallace  frequently  promised  to  pay  the  note  with- 
in fifteen  years  next  preceding  the  institution  of  the  acticxi ;  but  she 
deposes  that  she  did  not  make  such  promises,  and  that  she  did  not 
even  know  that  the  note  was  outstanding.  Upon  this  question  the 
testimony  is  equipoised. 

The  lapse  of  time  presents,  prima  fade,  a  bar  to  the  action.  The 
onus  was  upon  appellants  to  avoid  the  operation  of  the  statute. 
They  failed  to  do  so.  Hence  the  judgment  dismissing  their  peti- 
tion is  correct. 

Judgment  afHrnied, 

W,  H.  Card,  for  appellants. 


Harrison  &  Shelby  v.  W.  O.  Barksdale's  Adm'x. 

Partition  of  Real  Estate — Suit  to  Settle  Insolvent  Estate. 

The  fact  that  an  interested  party  to  a  partition  suit  is  dissatisfied 
with  the  partition  as  made,  and  offers  to  buy  the  whole  at  a  given 
price  is  no  ground  to  set  aside  the  partition. 


2/8  Kentucky  Opinions. 

Suit  to  Settle  Insolvent  Estate. 

Where  there  are  accounts  to  settle,  in  a  suit  to  settle  an  insolvent 
estate,  the  case  should  be  referred  to  a  master,  and  where  this  is  not 
done  the  court  of  appeals  will  not  undertake  to  enter  into  an  investi- 
gation of  the  items  involved. 

APPEAL  PROM  TODD  CIRCUIT  COURT. 
January  5,  1875. 

Opinion  by  Judge  Cofer  : 

The  appellee  had  a  right  to  have  the  homestead  set  apart,  unless 
doing  so  would  materially  affect  the  value  of  the  residue  of  the 
tract;  and  it  was  incumbent  on  those  who  insist  that  such  will  be 
the  result  to  show  the  fact  by  satisfactory  evidence,  which  has  not 
been  done.  Nor  can  we  decide  upon  anything  in  the  record  that  the 
two  and  five-eighths  acres  laid  off  to  be  sold  would  have  been  more 
valuable  if  it  had  been  laid  of  on  any  other  part  of  the  tract,  or  in 
different  shape. 

The  offer  of  the  appellants  to  pay  $1,200  for  the  whole  tract  fur- 
nished no  reason  why  the  whole  should  have  been  sold,  for  in  the  first 
place,  no  matter  what  appellants  may  have  been  willing  to  pay,  the 
actual  value,  and  not  their  estimate  of  the  value,  was  the  true  cri- 
terion for  the  government  of  the  court ;  and  in  the  next  place,  there 
was  no  guaranty  that  they  would  have  given  what  they  proffered  to 
give. 

We  are  not  satisfied  that  the  administratrix  was  not  legally 
chargeable  with  more  than  she  was  charged  with  in  the  judgment; 
but  we  will  not  reverse  on  that  ground  at  the  instance  of  these  ap- 
pellants. 

In  suits  to  settle  insolvent  estates,  it  is  peculiarly  the  province  of 
the  master  to  ascertain  the  items  and  amounts  with  which  personal 
representatives  should  be  charged ;  and  when  it  is  sought  to  charge 
them  with  more  than  they  have  accounted  for,  it  is  the  duty  of  the 
party  seeking  to  do  so  to  have  the  case  referred ;  and  when,  as  in 
this  case,  this  has  not  been  done,  we  will  not  undertake  to  enter  into 
the  investigation  of  a  long  list  of  items,  and  to  state  an  account,  in 
order  to  ascertain  whether  there  may  not  be  some  trifling  omissions 
or  inaccuracies  in  the  details  of  the  account. 

"The  practise  of  finally  hearing  causes  involving  the  settlement 
of  accounts,  without  the  intervention  of  the  master  and  the  aid  of 
his  report,  is  not  only  burdensome  to  the  lower  court,  and  to  this 


Eastern  Kentucky  R.  Co.  v.  Willis  Gholson.  279 

court,  but  is  unsafe  to  litigants."  Roberts'  Ex'r  v.  Dale,  et  al,,  7  B. 
Mon.  200. 

As  it  was  the  appellants'  duty  to  ask  such  reference,  and  to  have 
given  the  court  the  aid  of  a  report  by  the  master,  and  as  it  is  un- 
certain whether  the  judgment  is  not  right,  we  will  not  reverse  it  at 
their  instance. 

Judgment  aMrmed, 

Petre  &  Reeves,  for  appellants, 
G.  Terry,  for  appellees. 


Eastern  Kentucky  Railway  Company  v.  Willis  Gholson. 

Damages— Instructions. 

A  railroad  company  Is  not  liable  for  killing  animals  on  its  right  of 
way  when  its  agents  use  ordinary  care  and  diligence  to  prevent  such 
killing. 

Instructions. 

An  instniction  which  makes  a  railroad  company  liable  for  damages 
in  killing  stock,  if  it  were  possible  for  the  engineer  or  fireman  to  have 
seen  the  stock  by  the  use  of  the  highest  possible  degree  of  diligence, 
is  erroneous. 

APPEAL  FROM  GREENUP  CIRCUIT  COURT. 

January  5,  1875. 

Opinion  by  Judge  Lindsay  : 

The  court  erred  in  modifying  the  first  instruction  given  for  the 
railway  company.  The  modification  makes  the  company  responsible 
for  killing  and  injuring  the  stock,  if  it  was  possible  for  the  engineer 
or  fireman  to  have  seen  them  by  the  use  of  the  highest  possible  de- 
gree of  diligence. 

Whilst  railroad  companies  are  liable  in  cases  like  this  for  ordinary 
neglect,  they  are  not  bound  to  use  the  utmost  possible  diligence. 

The  question  is  whether  the  agents  in  charge  of  the  locomotive, 
having  due  regard  for  the  safety  of  the  train  and  passengers,  and  for 
the  business  of  the  company,  could,  by  such  care  and  diligence  as 
reasonably  prudent  men  in  like  circumstances  generally  use,  have 
discovered  the  cattle  in  time  to  check  the  train,  and  thus  have 
avoided  the  accident. 

The  owners  of  the  stock  cannot  complain  that  the  company  does 
not  keep  a  watch  at  the  mouth  of  the  tunnel  to  keep  stock  out  of  it. 


28o  Kentucky  Opinions. 

It  has  no  right  to  negligently  kill  or  injure  stock  on  its  road  or  in  its 
tunnel;  but  it  is  not  bound  to  herd  stock,  allowed  by  the  owners 
thereof  to  graze  along  the  line  of  its  road. 

Instruction  No.  2,  given  for  appellant,  is  erroneous.  The  statute 
so  modifies  the  common-law  rule  as  to  make  railroad  companies 
liable  for  injuries  to  stock  inflicted  through  ordinary  negligence.  It 
is  not  necessary  that  the  negligence  shall  be  either  wilful  or  reckless. 
This  instruction  should  have  been  refused.  For  the  error  in  modify- 
ing instruction  No.  i,  the  judgment  is  reversed  and  the  cause  re- 
manded for  a  new  trial,  upon  principles  consistent  with  this  opinion. 

£.  T.  Dulin,  for  appellant. 
A,  Duvall,  for  appellee. 


Alfred  Bailey's  Adm'r  v.  W.  R.  Thompson. 

Evidence— Account  Books — Copies. 

Account  books  duly  authenticated  may  be  introduced  in  evidence  in 
a  suit,  but  copies  of  such  account  books  cannot  be  so  introduced. 

APPEAL.  FROM  LEWIS  CIRCUIT  COURT. 

January  5,  1875. 

Opinion  by  Judge  Lindsay  : 

Subsec.  5,  Sec.  25,  Qiap.  37,  of  the  Gen.  Stat,  authorizes  a  party 
litigating  with  a  personal  representative,  with  regard  to  transac- 
tions had  with  the  decedent,  to  testify  as  to  the  correctness  of  the 
original  entries,  if  made  by  himself,  when  the  claim  or  defense  is 
founded  on  a  book  account ;  and  if  he  authenticates  the  account  book 
and  entries,  they  (the  book  and  entries)  may  be  admitted  as  evi- 
dence in  the  case.  Upon  the  trial  of  this  cause,  it  was  not  proved 
tliat  appellee  kept  regular  books.  If  he  did  keep  such  books,  he  did 
not  offer  them  in  evidence.  His  defense  is  founded  upon  an  ac- 
count, purporting  to  be  a  correct  copy,  taken  from  an  account  book 
between  himself  and  decedent.  The  statute  does  not  authorize  the 
introduction  of  copies  taken  from  an  account  book.  The  book  itself, 
when  properly  authenticated,  may  go  to  the  jury,  but  there  is  no 
authority  for  admitting  copies  made  from  the  book. 

An  inspection  of  the  book  may  be  essential  to  enable  the  jury  to 
determine  as  to  whether  the  entries  were  made  contemporaneously 
with  the  transaction  of  which  they  are  evidence.   The  testimony  of 


W.  J.  Walker  v.  G.  W.  Cramx)ck.  281 

the  litigant  is  not  conclusive  of  this  question,  and  was  not  intended 
so  to  be  by  the  legislature.  Further  than  this,  the  litigant  should 
be  confined  in  his  statements  to  the  making  of  the  original  entries 
in  the  book.  He  has  no  right  to  state,  as  he  did  in  this  case,  that 
the  account  is  correct,  independent  of  the  book  and  the  entries 
therein.  It  was  error  to  permit  the  copy  from  the  book  to  be  read 
to  the  jury  as  evidence.  The  judgment  is  reversed  and  the  cause 
remanded  for  a  new  trial  upon  principles  consistent  with  this 
opinion. 

jB.  F.  Bennett,  for  appellants, 
George  M.  Thomps,  for  appellee. 


W.  J.  Walker  z\  G.  W.  Craddock. 

Suit  on  Judgment — Pleading. 

A  petition  on  a  judgment,  to  be  sufficient,  must  aver  that  the  judg- 
ment sued  on  was  unpaid  at  the  time  the  suit  was  brought. 

APPEAL  FROM  FRANKLIN  CIRCUIT  COURT. 

January  6,  1876. 

Opinion  by  Judge  Cofer: 

It  is  not  alleged  that  the  judgment,  satisfaction  of  which  is  sought 
in  this  suit,  was  unpaid  at  the  time  the  suit  was  brought ;  and  the 
petition  is,  therefore,  insufficient,  and  the  judgment  in  this  case  must 
consequently  be  reversed. 

As  any  inaccuracy  of  the  judgment  may  be  corrected  upon  a 
return  of  the  cause,  it  is  not  necessary  to  decide  whether  such  inac- 
curacy is  error  to  be  corrected  here,  or  misprision  to  be  corrected  in 
the  court  below. 

The  judgment  is  reversed  and  the  cause  is  remanded  with  direc- 
tions to  allow  the  appellee  to  amend  his  petition  and  for  further 
proceedings. 

John  L.  Scott,  for  appellant, 
G,  W.  Craddock,  for  appellee. 


284  Kentucky  Opinions. 


Garnishee— Pleading. 

To  authorize  a  judgment  against  one  served  as  a  garnishee  it  must 
be  averred  that  the  garnishee  defendant  is  indebted  to  the  attachment 
defendant,  and  it  is  not  sufficient  to  aver  that  one  verily  believes  that 
such  garnishee  is  indebted  to  such  defendant. 

APPEAL  FROM  FRANKLIN  CIRCUIT  COURT. 

January  6,  1875. 

Opinion  by  Judge  Peters: 

Appellees,  in  their  petition,  alleged  that  Mike  Buckley  has  no 
property  subject  to  execution,  and  their  said  debt  of  $174.05  will 
be  endangered  by  delay  of  judgment  and  return  of  no  property. 
Wherefore,  they  pray  an  attachment  against  the  defendant,  Mike 
Buckley ;  and  they  further  state  that  they  verily  believe  that  James 
Fitzpatrick  is  indebted  to  the  defendant,  Mike  Buckley,  in  a  sum 
sufficient  to  fully  pay  their  said  debt.  Wherefore  these  plaintiffs 
pray  that  said  James  Fitzpatrick  be  made  a  party  to  the  proceedings, 
and  that  summons  as  garnishee  be  issued  against  the  said  James 
Fitzpatrick,  that  he  may  disclose  on  oath,  and  in  court,  the  amount 
of  his  said  indebtedness  to  said  defendant,  Mike  Buckley ;  and  these 
plaintiffs  pray  judgment  against  said  defendant,  James  Fitzpatrick, 
in  whatever  sum  he  may  be  owing  said  Mike  Buckley,  and  for  all 
other  proper  relief.  These  are  all  of  the  allegations  against  Fitz- 
patrick contained  in  the  petition.  And  the  judge  of  the  Franklin 
county  court  merely  certifies  that  the  petition  was  sworn  to  before 
him  by  the  plaintiffs. 

On  that  petition  and  verification,  the  defendants,  Buckley  and 
Fitzpatrick,  were  served  with  a  summons,  and  an  order  of  attach- 
ment was  served  on  Fitzpatrick. 

The  defendants  failed  to  answer ;  the  petition  was  taken  for  con- 
fessed against  both  of  them,  and  judgment  rendered  against  Mike 
Buckley  for  the  debt  claimed  in  the  petition,  with  interest  from 
September  27,  1873,  till  paid,  and  costs.  The  attachment  was 
sustained,  and  judgment  rendered  against  Fitzpatrick  for  the  debt, 
with  interest  fromi  the  date  above  named,  ^nd  the  costs  of  the  suit. 
And  from  that  judgment  the  defendants  in  the  court  below  have 
api>ealed. 

The  petition  is  not  sufficient  to  authorize  a  judgment  against 
Fitzpatrick.  Unless  he  was  indebted  to  Buckley,  appellees  had  no 
cause  of  action  against  Fitzpjatrick.  It  was,  therefore,  the  material 
fact  to  make  out  a  case  against  him,  and  it  should  have  been  dis- 


Silas  Jones's  Heirs  v.  Nelson  Jones,  et  al.  285 

tinctly  and  unequivocally  charged  so  that  a  denial  in  the  answer 
would  have  put  in  issue  that  fact,  whereas  a  denial  of  the  allega- 
tion as  made  would  only  put  in  issue  whether  or  not  appellees  verily 
believed  Fitzpatrick  owed  Buckley  $174.05.  IVilliatns  v.  Martin, 
et  al,  I  Met.  42. 

Further,  in  order  to  sustain  the  attachment,  it  should  have  been 
stated  in  the  petition  or  the  affidavit,  in  direct  terms  or  in  substance, 
that  the  plaintiffs'  claim  was  just,  and  that  they  verily  believed  they 
were  entitled  to  recover  the  amount  set  forth.  Scott  v.  Doneghy, 
17  B.  Mon.  321 ;  Worthington  v,  Gary,  et  ai,  i  Met.  470. 

Wherefore  the  judgment  is  reversed  as  to  Patrick,  and  the  cause 
remanded  for  further  proceedings  as  to  him  not  inconsistent  with 
this  opinion,  and  the  judgment  against  Buckley  is  affirmed. 

W.  L.  Jett,  for  appellants. 
J.  L,  Scott,  for  appellees. 


Silas  Jones's  Heirs  v.  Nelson  Jones,  et  al. 

Administrator — Suit  on  Bond — ^Parties  Plaintiff. 

Where  an  administrator  settles  his  accounts  and  has  left  in  his 
hands  a  sum  for  distribution  to  the  heirs  of  his  decedent,  but  does  not 
distribute,  a  joint  suit  may  not  be  maintained  by  the  heirs,  but  each 
has  a  separate  cause  of  action  against  such  administrator  and  his 
bondsmen. 

APPEAL  FROM  OWEN  CIRCUIT  COURT. 

January  7,  1875. 

Opinion  by  Judge  Peters  : 

In  1858  the  appellee,  Nelson  Jones,  administered  on  the  estate  of 
Silas  Jones,  deceased,  and  executed  bond,  with  Richard  L.  Jones  as 
his  surety,  for  the  faithful  discharge  of  his  duties  as  such. 

In  1861  the  appellee,  Nelson  Jones,  settled  his  accounts  as  admin- 
istrator as  aforesaid,  and  a  balance  of  $979.15  were  found  in  his 
hands  for  distribution  among  the  heirs  of  his  decedent. 

In  October,  1874,  this  suit  in  equity  was  brought  jointly  by  the 
appellants  as  the  heirs  of  the  intestate  against  the  administrator  and 
his  surety  on  the  administration  bond,  to  recover  their  respective 
shares  of  the  amount  ascertained  by  the  settlement  aforesaid  to  be 
in  the  hands  of  the  administrator. 

On  the  calling  of  the  cause,  appellees  moved  the  court  for  a  rule 


286  Kentucky  Opinions. 

against  the  appellants  to  make  them  elect  which  of  them  would 
prosecute  the  suit,  the  rule  being  asked  on  the  alleged  ground  that 
there  was  a  misjoinder  of  plaintiffs.  The  rule  was  granted,  and  ap- 
pellants immediately  entered  their  appearance  thereto,  and  declining 
to  make  any  election,  their  petition  was  dismissed,  and  they  have  ap- 
pealed. 

There  is  no  effort  in  the  petition  to  surcharge  the  settlement  made 
by  the  administrator,  and  no  allegation  that  other  assets  had  come  to 
his  hands,  or  that  a  further  settlement  was  necessary ;  but  it  is  a  suit 
by  the  heirs  to  recover  their  several  parts  or  shares  of  a  definite 
and  certain  sum  of  money  in  the  hands  of  the  administrator.  If  the 
suit  had  been  sought  to  settle  the  estate,  or  to  surcharge  the  settle- 
ment previously  made,  the  appellants  doubtless  might  have  united 
as  co-plaintiffs.  But  where  a  settlement  has  been  made,  to  which 
there  appears  to  be  no  objection,  and  by  which  the  amount  that  each 
distributee  is  separately  entitled  to  receive,  is  for  all  practicable 
purposes  ascertained,  each  one's  right  of  action  is  separate  and 
independent  of  the  others.  There  is  no  such  unity  of  interests  in 
the  plaintiffs  as  authorized  them  to  sue  jointly ;  the  judgment  could 
not  have  been  joint,  since  each  plaintiff  would  be,  in  a  proper  pro- 
ceeding, entitled  to  a  several  judgment  for  the  amount  due  him  or 
her  respectively.  Nor  can  the  rights  of  the  parties  in  this  respect  be 
changed  by  bringing  the  suit  in  equity. 

Judgment  affirmed. 


James  Huffstetter,  et  al.,  v,  Stanley  Moore,  et  al. 

Decedents'  Estates — Claim — Married  Women. 

Where  a  claim  of  a  married  woman  has  been  allowed  by  the  admin- 
istrator and  not  questioned  either  by  him  or  the  heirs  in  a  proceeding 
to  sell  real  estate  to  pay  debts  to  which  they  were  parties,  they  will 
not  be  allowed  in  a  petition  for  a  settlement  of  the  estate  to  question 
its  validity. 

Married  Women. 

While  a  married  woman  may  plead  coverture  in  her  own  behalf, 
such  disability  cannot  avail  her  adversaries  who  were  themselves  un- 
der no  disability. 

APPEAL  FROM  NICHOLAS  CIRCUIT  COURT. 

January  8,  1875. 

Opinion  by  Judge  Cofer: 

The  administrator  of  David  Huffstetter  set  up  in  the  award  in 


James  L.  Harris  v.  P.  J.  Honaker.  287 

favor  of  Mrs.  Crouch  a  debt  against  the  estate  of  his  intestate,  and 
thereby  ratified  and  made  it  valid  so  far  as  he  could  do  so ;  and  he 
made  the  heirs  and  distributees  parties,  and  put  it  in  their  power  to 
impeach  the  award  if  they  chose  to  do  so;  but  they  have  failed  to 
interpose  any  available  objections  to  it,  if  any  exist. 

In  the  petition  for  a  settlement  of  the  estate,  the  administrator 
recognized  the  award  as  valid,  and  sought  to  sell  real  estate  to  pay 
the  debts  of  his  intestate,  including  this,  and  thereby  put  the  claim 
of  Mrs.  Crouch  in  suit,  which  suspended  the  statute  of  limitations 
as  effectually  as  if  she  had  sued  on  it  herself.  The  other  heirs  (the 
administrator  being  one),  stood  silently  by  without  objecting  to 
the  award  until  the  statute  had  barred  the  original  cause  of  action, 
and  then  for  the  first  time  signified  their  objection.  If  they  had  at- 
tacked the  award  by  their  answers,  filed  within  a  reasonable  time 
after  it  was  set  up  by  the  administrator,  Mrs.  Crouch  might  have 
resorted  to  her  original  cause  of  action ;  but  having  failed  to  do  so 
until  her  right  of  action  is  gone,  it  would  be  a  fraud  upon  her  now 
to  attack  the  award,  and  thus  prevent  even  an  inquiry  into  the  jus- 
tice of  her  original  claim. 

That  she  was  a  feme  covert  might  have  enabled  her  to  avoid  the 
award  if  she  had  elected  to  do  so ;  but  her  disability  cannot  avail  her 
adversaries,  who  were  themselves  under  no  disability. 

The  award  precludes  all  inquiry  into  the  original  cause  of  action. 

Judgment  affirmed. 

Thomas  Kennedy,  W.  Newell,  for  appellants, 
Thomas  F.  Hargis,  for  appellees. 


James  L.  Harris  v.  P.  J.  Honaker. 

Arbitration— Written  Agreement. 

Where  by  the  terms  of  a  written  agreement  of  parties  to  refer  to 
arbitrators  the  matters  in  dispute  between  them,  it  was  only  in  case 
of  disagreement  between  the  arbitrators  that  the  umpire  selected  by 
them  was  to  act,  where  there  was  a  disagreement,  the  parties  are  en- 
titled to  the  decision  of  the  umpire  alone,  and  the  arbitrators  have  no 
further  right  to  participate. 

APPEAL  FROM  HENRY  CIRCUIT  COURT. 

January  9,  1875. 

Opinion  by  Judge  Cofer: 

By  the  terms  of  the  written  agreement  of  the  parties  to  refer  to 


288  Kentucky  Opinions. 

arbitrators  the  matters  in  dispute  between  them,  it  was  only  in  case 
of  disagreement  between  the  chosen  arbitrators  that  the  umpire  se- 
lected by  them  was  to  act,  and  when  such  disagreement  occurred 
the  parties  had  a  right  to  the  decision  of  the  umpire  alone  made 
upon  his  own  responsibility  according  to  his  own  judgment.  Royse's 
Adm'r.,  et  ai,  v,  McCall,  5  Bush  695 ;  DatUel  v.  Daniel,  6  Dana  93. 

When  the  arbitrators  disagreed,  they  should  have  withdrawn  from 
any  further  participation  in  the  matter,  and  have  left  the  umpire  to 
make  his  decision ;  and  the  fact  of  their  disagreement,  and  that  the 
decision  was  that  of  the  umpire,  should  have  been  stated  in  the 
written  award,  which  should  have  been  signed  by  all.  Instead  of 
doing  this,  one  of  the  arbitrators  seems  to  have  united  with  the  um- 
pire in  making  the  award,  which  may  be  the  result  of  mutual  con- 
cessions between  them  instead  of  being  the  decision  of  the  umpire 
alone. 

Judgment  affirmed, 

Webb  &  Masterson,  for  appellant, 
DeHavon  &  Carroll^  for  appellee. 


Levi  Fortney  v,  Jesse  Moore. 


Real  Estate — ^Judicial  Sale — Redemption  from  Sale — Sale  Bond. 

In  order  for  one  to  make  out  a  title  to  land  through  a  sherilTB  deed, 
such  person  must  show  the  execution  and  judgment  on  which  it  is- 
sued, or  a  bond  of  equal  dignity  of  a  Judgment  by  judicial  sanction. 

Sale  Bond. 

Where  a  bond  is  taken  by  a  commissioner  for  the  balance  of  the 
purchase  money  of  land  sold,  but  which  is  not  reported  to  the  court, 
a  title  secured  through  an  execution  on  such  bond  and  sale  thereunder 
by  the  sheriff  is  not  good,  and  will  be  set  aside. 

APPEAL  FROM  MUHLBNBURG  CIRCUIT  COURT. 

January  9,  1875. 

Opinion  by  Judge  Peters  : 

This  record  presents  some  very  extraordinary  features.  Eli  Fort- 
ney, it  appears,  was  the  owner  of  the  tract  of  land  in  controversy, 
and  being  indebted  to  one  George  W.  Short  in  various  sums  of 
money,  mortgaged  the  land  to  secure  the  payment  of  said  debts. 

Short  filed  his  petition  in  the  Muhlenburg  circuit  court  against 
said  Fortney  to  foreclose  said  mortgage,  and  to  subject  the  land  to 


Levi  Fortney  v.  Jesse  Moore.  289 

the  payment  of  his  debts.  Pending  the  suit  said  Short  died,  and  it 
was  revived  in  the  name  of  Joseph  Short,  his  executor,  and  a  judg- 
ment was  then  rendered  foreclosing  the  mortgage,  and  ordering  a 
sale  of  the  land  or  so  much  thereof  as  should  be  necessary  to  pay 
the  debts  owing  to  Short,  all  of  which  are  specifically  set  forth ;  and 
then  the  judgment  read  as  follows : 

"That  said  land  be  sold  at  the  court  house  in  Greenville  on  a 
court  day,  to  the  highest  bidder,  on  a  credit  of  four  and  eight 
months,  with  interest  from  date,  the  purchaser  giving  bond  with 
good  security,  having  the  force  of  a  judgment  payable  to  said  execu- 
tor," etc. 

The  master,  who  was  directed  to  make  the  sale,  reported  to  the 
court  that  he  did,  on  the  29th  day  of  August,  1864,  it  being  county 
court,  and  after  having  advertised  as  required  by  said  decree,  sell 
at  the  court  house  door  in  Greenville,  the  200  acres  of  land  in  the 
decree  mentioned,  and  Levi  Fortney  became  the  purchaser  at  the 
price  of  $604,  and  executed  bond  with  William  H.  Fortney  as  se- 
curity, due  in  six  months,  bearing  interest  from  date,  all  of  which 
is  respectfully  reported.   Signed,  Jesse  H.  Reno,  commissioner. 

The  bond  is  not  made  a  part  of  the  report.  But  a  bond  dated 
August  29,  1869,  purporting  to  have  been  executed  by  Levi  Fort- 
ney, William  Fortney  and  Eli  Fortney,  due  six  months  after  date, 
for  six  hundred  and  four  dollars,  and  payable  to  Jesse  H.  Reno, 
commissioner,  is  filed.  And  the  copy  of  an  order  made  in  said  case  is 
filed  in  the  following  words :  Jesse  H.  Reno,  commissioner,  reported 
to  court  his  sale  of  land  in  this  action,  and  the  same  was  ordered 
to  be  confirmed,  and  thereupon  Jesse  H.  Reno,  as  commissioner, 
produced  and  acknowledged  in  open  court  a  deed  from  himself,  as 
commissioner,  to  Levi  Fortney,  which  deed  was  examined,  approved 
and  endorsed  by  the  court,  and  ordered  to  be  certified  to  the  proper 
officer  for  record.    That  deed  was  recorded  in  the  proper  office. 

The  bond,  executed  by  Levi  Fortney  and  his  sureties,  having  ma- 
tured, and  they  having  failed  to  satisfy  the  same,  an  execution  was 
sued  out  on  it  in  the  name  of  Reno,  commissioner,  against  all  of 
the  payors,  and  placed  in  the  hands  of  the  sheriff  of  Muhlenburg 
county,  who  levied  it  on  the  land  in  controversy,  and  the  same  was 
sold  by  him  to  appellee,  Jesse  Moore,  on  the  27th  day  of  October, 
1867,  at  the  price  of  $43247,  it  having  been  valued  on  the  day  of 
sale  by  two  housekeepers  selected  for  the  purpose  at  the  sum  of 
$1,600. 

This  suit  was  brought  by  Levi  Fortney  to  set  aside  the  sale  or 

19 


290  Kentucky  Opinions. 

to  be  permitted  to  redeem  the  land  by  refunding  to  Moore  the  price 
paid  for  it  by  him  on  the  various  grounds  set  forth  in  his  petition. 
The  relief  sought  is  resisted  by  Moore,  who,  in  his  answer,  tra- 
versed all  the  material  allegations  of  the  petition ;  and  by  cross- 
pleadings  he  asks  to  be  put  into  the  possession  of  the  land  under  his 
purchase,  and  for  a  judgment  for  rents.  Eli  Fortney,  by  appro- 
priate pleadings,  asks  judgment  against  Levi  Fortney  and  Moore, 
for  a  surplus  of  73  acres  of  land  in  the  tract,  over  and  above  what 
was  sold.  Levi  Fortney's  petition  was  dismissed  with  costs,  and 
he  seeks  a  reversal  of  that  judgment. 

A  question  of  primary  importance  and  preliminary  to  those  so 
elaborately  discussed  by  counsel  on  both  sides,  is  presented  at  the 
threshold  of  the  investigation,  and  that  is  as  to  what  is  the  charac- 
ter of  title  that  appellee  acquired  by  his  purchase  at  the  sheriff's 
sale. 

In  order  to  make  out  a  title  to  the  land  through  the  sheriff's  deed, 
the  appellee  must  show  the  execution  and  the  judgment  on  which 
it  issued,  or  a  bond  raised  to  the  dignity  of  a  judgment  by  judicial 
sanction.  The  sale  bond  on  which  the  execution  issued  has  never 
been  returned  and  reported  to  the  court.  The  one  which  the  com- 
missioner reports  he  took  was  executed  by  Levi  Fortney  and  William 
H.  Fortney  as  his  surety,  different  from  the  one  on  which  the  execu- 
tion issued. 

That  one  was  executed  by  Levi  Fortney,  with  William  H.  Fort- 
ney and  Eli  Fortney  as  sureties.  Besides,  he  reports  that  having 
advertised  the  land  as  required  by  the  decree,  he  sold  it  and  took 
a  bond  from  the  purchaser,  due  in  six  months,  but  fails  to  state  to 
whom  the  bond  was  made  payable,  or  that  the  sale  in  other  respects 
conformed  to  the  requirements  of  the  decree;  and  by  an  examina- 
tion of  the  decree  it  is  found  that  the  sale  was  required  to  be  made 
on  a  credit  of  four  and  eight  months,  instead  of  which  the  com- 
missioner sells  the  land  on  a  credit  of  six  months,  and  takes  the  bond 
payable  to  himself,  when  he  was  required  by  the  judgment  to  take 
bonds  payable  to  G.  W.  Short's  executor.  It  seems  that  the  report 
of  the  commissioner  was  confirmed,  which  may  be  regarded  as  an 
approval  by  the  court  of  the  change  of  the  terms  of  the  sale  made 
by  the  commissioner,  and  also  of  the  bond  which  he  reported  he 
took  from  the  purchaser,  which,  according  to  that  report,  was  not 
the  bond  on  which  the  execution  issued,  under  which  the  land  was 
sold.  Consequently  the  execution  was  unauthorized,  and  Moore  ac- 
quired no  title  by  the  sheriff's  deed. 


B.  A.  Jessie  v.  Fannie  E.  Farmer,  et  al.  291 

But  even  if  that  objection  did  not  exist,  we  are  satisfied  from  the 
evidence  that  Eli  Fortney  tendered  the  money  paid  by  Moore  for 
the  land  with  10  per  cent,  interest  thereon,  within  the  time  pre- 
scribed by  law  to  redeem  the  land. 

In  either  aspect  of  the  case,  the  judgment  must  be  reversed  and 
the  cause  remanded  with  directions  to  render  judgment  against  Levi 
and  William  H.  Fortney  in  favor  of  Jesse  Moore  for  the  sum  of 
$432.47,  with  interest  at  the  rate  of  6  per  cent,  per  annum  from  Oc- 
tober 28,  1867,  until  paid,  and  to  fix  a  certain  day  by  which  the 
mcHiey  is  to  be  paid.  On  failure  to  pay  the  same  within  the  time 
prescribed,  the  land,  or  so  much  thereof  as  shall  be  required  to  pay 
said  debt,  interest  and  costs  of  sale,  shall  be  sold  for  cash  in  hand 
at  the  court  house  door  in  Greenville,  on  the  first  day  of  a  circuit 
or  county  court  after  properly  advertising  said  sale.  The  sheriff's 
deed  to  said  Moore  for  said  land  shall  be  set  aside.  Reversed  for 
further  proceedings  consistent  herewith. 

Charles  Eaves,  for  appellant. 
/.  C.  Thompson,  for  appellee. 


B.  A.  Jessie  v.  Fannie  E.  Farmer,  et  al. 

Husband  and  Wife— Real  Esute— Purchase— Set-Off. 

Where  land  is  purchased  by  the  husband  with  the  wife's  money  and 
conveyed  to  her,  a  purchaser  from  her  cannot  by  buying  claims 
against  her  husband  set  them  off  against  the  purchase  money  he  owes 
the  wife. 

Husband  and  Wile— Fraudulent  Conveyance. 

When  land  is  purchased  by  the  husband  and  conveyed  to  his  wlfe^ 
the  greater  portion  of  the  purchase  money  being  furnished  by  the  wife, 
such  conveyance  could  not  be  in  fraud  of  the  husband's  creditors  who 
became  such  long  after  the  real  estate  was  so  purchased. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT.' 

January  12,  1875. 

Opinion  by  Judge  Pryor  : 

We  have  been  unable  to  discover  even  the  semblance  of  fraud  on 
the  part  of  Nichols  or  his  wife  upon  the  facts  appearing  in  the  rec- 
ord ;  but  on  the  contrary,  the  appellant,  with  a  full  knowledge  of  the 
rights  of  the  wife,  purchased  the  claims  of  Husa  and  others,  that 
he  might  apply  them  in  payment  of  the  note  for  the  land. 


292  Kentucky  Opinioxsw 

He  sold  the  land  originally  to  Nichols,  and  made  die  conveyance 
to  Nichcrfs's  wife.  This  sale  and  conveyance  were  made  in  the  year 
1868,  and  the  debts  attempted  to  be  set  off  were  not  created  until 
the  year  1870.  The  conveyance  made  in  1868  had  for  its  considera- 
tion the  money  of  the  wife  arising  from  the  proceeds  of  the  sale  of 
her  land  in  the  county  of  Owen.  This  money  was  invested  in  the 
purchase  of  appellant's  property  under  the  express  agreement  be- 
tween Nichols,  his  wife  and  the  mother  of  the  latter,  by  which  they 
consented  to  a  sale  of  the  Owen  land,  that  the  proceeds  might  be 
invested  in  the  Shelby  property  for  the  benefit  of  the  wife.  The 
money  was  in  good  faith  so  applied,  and  the  deed  made  to  the 
wife  by  the  appellant,  who  now  claims  that  it  was  in  fraud  of  the 
husband's  creditors. 

It  might  be  conceded  that  the  husband  advanced  as  much  as  two 
hundred  dollars  out  of  his  own  means,  or  even  more,  and  still  the 
conveyance  to  the  wife  made  in  1868  could  not  be  said  to  be  fraudu- 
lent as  to  debts  created  in  1870.  The  deed  of  1868,  as  well  as  the 
deed  made  to  appellant  and  accepted  by  him,  gave  him  full  notice 
of  the  wife's  claim ;  and  whilst  the  deed  of  1868  could  not  operate 
to  defeat  the  claims  of  creditors  whose  debts  had  been  created  prior 
to  that  time,  if  the  consideration  had  been  paid  by  the  husband,  in 
the  present  case  no  fraud  can  be  perceived,  as  the  deed  was  made 
before  the  debts  had  an  existence,  and  the  consideration  or  the 
greater  part  of  it,  actually  paid  by  the  wife.  The  identity  of  the 
land  sufficiently  appears  from  the  judgment.    Judgment  afHrmed, 

G.  N.  Robinson,  for  appellant, 
Caldwell  &  Haewood,  for  appellees. 


C.  P.  Clemmons  V,  Jesse  Moore. 

Trusts— Established  by  Parol. 

To  establish  a  parol  trust  the  facts  constituting  such  a  trust  must  be 
specifically  and  clearly  set  forth  In  the  petition  and  If  denied  must  be 
proved  certainly. 

APPEAL  FROM  MUHLENBURG  CIRCUIT  COURT. 

January  12,  1875. 

Opinion  by  Judge  Peters  : 

To  establish  a  parol  trust,  the  facts  constituting  such  a  trust  should 
be  specifically  and  clearly  set  forth  in  the  petiticai,  and  if  denied 


Ben  a.  Carrico,  et  al.,  v.  Charles  Greenwell.  293 

should  be  proved  with  great  certainty.  In  this  case  the  evidence  is 
very  conflicting;  and  if  it  does  not  preponderate  against  the  appel- 
lant, it  falls  far  short  of  the  clearness  and  certainty  which  in  such 
cases  is  required  to  authorize  judicial  action. 

Several  business  transactions  transpired  between  these  parties  after 
the  alleged  agreement  to  hold  the  land  by  Moore  for  Clemmons,  in 
some  of  which  writings  were  executed.  In  one,  appellant  executed 
to  appellee  a  mortgage  on  a  crop  of  tobacco;  and  still  the  alleged 
agreement  to  permit  appellee  to  redeem  the  land,  the  most  important 
of  all,  was  left  in  parol. 

The  legal  title  to  the  land  was  in  appellant,  Qemmons,  or  if  not 
it  was  held  by  Gilliam,  and  it  was  subject  to  levy  and  sale  under 
the  execution.    Indeed  that  is  not  questioned  by  the  pleadings. 

We  have  been  unable  to  discover  upon  what  principle  appellant 
can  be  relieved. 

Wherefore  the  judgment  be  afHrmed. 

James  Ricketts,  for  appellant. 
J.  C.  Thompson,  for  appellee. 


Ben  a.  Carrico,  et  al.,  v.  Charles  Greenwell. 

Liens— Enforcement  of  Liens  on  Real  Estate. 

Where  there  are  senior  and  Junior  liens  on  the  same  real  estate,  and 
the  senior  lien  holder  sues  to  foreclose,  the  junior  lien  holders  are  en- 
titled to  be  made  parties  if  they  ask  to  be  and  may  file  cross-petitions 
to  recover  on  their  own  liens,  but  they  are  not  entitled  to  file  answers 
to  the  petition  of  the  senior  lien  holder  and  defend  his  suit. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

January  12,  1875. 

Opinion  by  Judge  Lindsay  : 

Greenwell  was  proceeding  to  enforce  a  vendor's  Hen.  Appellants 
held,  or  claim  to  hold,  junior  liens  on  the  same  property.  They  can 
interpose  no  defense  to  Greenwell's  action.  They  had  the  right  to 
set  up  their  liens,  by  making  themselves  parties  to  his  action,  and  it 
would  have  beep  proper  for  the  chancellor  to  delay  proceedings  in 
Greenwell's  favor  until  they  could,  by  reasonable  diligence,  prepare 
their  cross-actions  for  trial.  The  only  ground,  however,  upon  which 
they  could  demand  such  delay,  was  that  they  were  proceeding  to 
prepare  their  said  cross-actions  with  legal  diligence.     Such  is  not 


the  r2se  here,  T!ie7  or-.ccaeri  x  ile  ani-wers  t^  'ieciwrar^  oetrDDOL 
VAXt  zhej  fiid  net  make  ±em  cr>t.-T-oet:r:i:iis  agiinst  dneir  <Micar, 
Carrier,  ncr  a^n^st  d:e  parties  zo  w'-Jim  Carr-LcD  aad  scui  pcrdiXB 
oi  the  lani-f.  I:  ±e  ccnrt  haii  sermirred  rrrerr  answers  rn  be  tiljci 
the  T'*:iKX  wcfilri  ha-^e  been  v^  impede  «3ronrweiL  ami  yet  acceCants 
mwA  not,  grithotit  vit^xt  pieadmc*.  zxve  ban  in  candidcn  to  pro- 
^cerl  to  ofccain  am^  relief  whstzerrer, 

fn  view  of  these  facta  the  cranceil*:r  'lEif  tsot  abase  a  sonnd  ^fccre- 
tu-^n  in  xti'cL^wjg^  to  rrjike  then  parties-  A*  thev  are  not  parties  tfaey 
have  no  right  en  th:.-!  appeal  to  cuesccn  rie  adEoemry  irf  the  serrkc 
of  procew, 

Jjrfjjjrnent  effjrwud. 

k.  H.  Fi€id,  for  appelljnts, 
W.  IVilion,  f&r  appelUe, 


J/  KR.%    BftrfjOFORD  T.   ifAXHATTAX   FlRE  IXSCRAXCZ  Ca 


W'n^«  a  t^naat  a^nip  for  himaelf  and  bis  landlord  takes  oat  a  poficy 
#yf  liMpriranA>«  00  a  bti tiding  and  contents,  the  coatcnts  lir^mglBg  to  the 
f^^AaAt  aad  tli«  \m\\A\n^  to  the  fauidlord,  and  the  poticr  is  delirered  to 
th^,  tjuMint  and  U  by  its  terms  made  payable  to  him,  and  he  informs 
tlMr  u^iKUt  of  the  faets  of  ownership  and  the  a^ent  tlien  amends  the 
pfAUy  \ff  makiftur  It  parable  to  the  landlord  and  tenant  in  proportion 
fi>  th^  ^^wniiTshtp  of  each,  and  the  premiom  is  paid,  the  company  is 
f$ff^.  in  a  ptmiUfm  to  deny  its  liability  on  account  of  the  policy  being 
fnade  payable  to  the  two  persons. 

APPEAL  FROM  LOUISVIULE  CHANCERY  COURT. 

January  13,  1875. 

Of'JNfOM  BY  JtTDGE  PrYOR  : 

()n  Sq^temfKJr  15,  1872,  the  Manhattan  Fire  Insurance  Company 
of  New  York  issued,  and  by  its  agents  delivered  to  George  A. 
Scrjtt  a  (Kjlicy  of  insurance,  by  which,  in  consideration  of  the  pre- 
mium in  hand  paid,  it  agreed  to  insure  "George  A.  Scott,  for  the 
j)criod  of  one  year,  against  loss  or  damage  by  fire  to  the  amount  of 
$2,500,  viz.,  $2,000  on  the  two-story  brick  metal-roofed  building, 
and  $500  on  merchandize,  hazardous  and  not  hazardous,  principally 
tinware  contained  therein  occupied  by  the  assured  as  a  store  and 
^hop,  situate  No.  90,  on  the  south  side  of  Water  street,  Portland, 


James  Bridgford  z/.  Manhattan  Fire  Ins.  Co.  295 

Louisville,  Kentucky.  Loss,  if  any  under  this  policy  on  building, 
payable  to  James  Bridgford,  Esq." 

Among  the  terms  and  conditions  annexed  to  the  policy,  and  made 
part  of  the  contract  of  insurance,  are  the  following:  First,  "If  the 
interest  of  the  assured  in  the  property,  whether  as  owner,  trustee, 
consignee,  agent,  mortgagee,  lessee  or  otherwise,  be  not  truly  stated 
in  the  policy,  then  it  is  to  be  void ;"  second,  "I£  the  interest  of  the 
assured  in  the  property  be  any  other  than  the  entire,  unconditional 
and  sole  ownership  of  the  property  for  the  use  and  benefit  of  the 
assured,  it  must  be  so  represented  to  the  company,  and  so  expressed 
in  the  written  part  of  this  policy ;  otherwise  the  policy  shall  be  void ; 
third,  "It  is  a  part  of  this  contract  that  any  person,  other  than  the 
assured,  who  may  have  procured  the  insurance  to  be  taken,  shall 
be  deemed  to  be  the  agent  of  the  assured  named  in  this  policy,  and 
not  of  this  company,  under  any  circumstances  whatever,  unless  he 
shall  hold  his  commission,  signed  by  the  officers  of  the  company  or 
its  duly  authorized  agents." 

On  July  30,  1873,  the  building  and  contents  were  destroyed  by 
fire.  The  company  paid  to  Scott  the  value  of  the  contents  of  the 
building,  but  refused  to  pay  to  Bridgford  the  insurance  on  the 
building,  or  any  sum  whatever,  by  reason  of  his  loss.  This  action 
was  then  instituted  by  Bridgford,  uniting  Scott  with  him,  as  plaintiff 
to  recover  of  the  company  the  sum  of  $1,880,  the  value  of  the  build- 
ing. 

It  is  alleged  in  the  petition  that  Bridgford  was  the  owner  of  the 
building,  and  that  Scott,  as  his  tenant  and  agent,  made  the  contract 
of  insurance  and  paid  the  premium.  It  is  further  alleged  that  the 
agents  of  the  company  knew  when  they  made  the  contract  of  in- 
surance with  Scott,  that  Bridgford  was  the  owner  in  fee  of  the  prop- 
erty ;  that  it  was  so  represented  to  them  by  Scott,  and  the  latter  was 
only  interested  to  the  extent  of  the  value  of  the  merchandise  in  the 
building;  that  it  was  the  intention  and  meaning  of  Scott  and  the 
company's  agent  that  the  insurance  on  the  building  was  for  the  bene- 
fit of  Bridgford,  and  that  the  interest  each  had  in  the  property  he 
fully  and  truly  represented  to  the  agents  at  the  time ;  that  by  mistake 
or  ignorance  the  name  of  Bridgford  was  omitted  from  the  policy. 

The  answer  filed  by  the  company  denies  any  mistake  in  the  execu- 
tion of  the  contract,  or  ignorance  on  the  part  of  its  agents  or  the 
assured  as  to  the  rights  of  Bridgford.  It  is  also  denied  that  Scott 
insured  the  property  as  the  tenant  or  agent  of  Bridgford,  and  the 
latter  having  insured  the  building  in  his  own  name,  without  dis- 


296  Kentucky  Opinions. 

closing  the  character  of  his  title  or  that  Bridgford  was  the  real 
owner,  neither  Scott  nor  Bridgford  are  entitled  to  a  judgment.  The 
court  below,  taking  this  view  of  the  question  presented,  dismissed 
the  petition,  and  Bridgford  Sippeals  to  this  court. 

It  is  conceded  that  Bridgford  owned  the  building  when  the  con- 
tract of  insurance  was  made,  and  the  proof  shows  that  Scott  was 
his  tenant,  holding  the  property  for  no  definite  period,  only  at  the 
will  of  his  landlord.  The  only  property  the  tenant  had  in  the  build- 
ing was  some  tinware  of  the  value  of  five  hundred  dollars.  The  facts 
connected  with  the  insurance  are  inconsistent  with  the  conclusion 
that  the  agents  of  the  company  were  in  ignorance  as  to  the  real 
owner,  or  without  knowledge  as  to  the  object  in  view  when  the 
allegation  was  made  in  the  policy,  by  which  Bridgford  became  the 
insured  of  the  building,  and  Scott  of  its  contents.  Scott,  who,  it 
seems,  effected  this  insurance  for  Bridgford  at  the  instance  of  a 
solicitor  for  the  local  agents  of  the  company,  but  whose  authority 
to  act  both  the  agent  and  the  company  deny,  was  dissatisfied  with 
the  policy  at  first  issued,  as  it  g^ve  to  him  the  benefit  of  the  insurance 
on  the  building  instead  of  Bridgford,  the  real  owner.  It  appears  that 
when  the  policy  was  delivered  to  Scott  by  the  solicitor  that  he  de- 
clined to  receive  it.  This  objection  having  been  made  to  the  solicitor, 
or  the  party  pretending  to  act  as  such,  and  upon  the  request  of  Scott 
that  the  policy  should  be  altered  so  as  to  make  Bridgford  the  insured 
of  the  building,  the  solicitor  took  the  policy  from  him  and  had  the 
alteration  made  by  the  local  agent  of  the  company,  so  as  to  make  it 
read,  "Loss,  if  any,  *  *  *  on  building  payable  to  James  Bridg- 
ford." After  the  alteration  was  made  Scott  accepted  the  policy  and 
paid  the  premium  to  one  of  the  local  agents. 

The  solicitor  obtaining  this  insurance  for  the  local  agents  had  no 
recollection  of  being  informed  by  Scott  why  he  desired  the  altera- 
tion made  in  the  policy;  nor  does  he  recollect  that  anything  was 
said  as  to  Bridgford  being  the  owner  of  the  building.  The  agent  of 
the  company  making  the  alteration  seems  to  have  been  as  ignorant 
of  the  real  owner  as  his  solicitor,  and  when  handed  the  policy  with 
the  request  to  make  the  alteration,  made  no  inquiry  as  to  why  the 
change  was  desired  or  what  interest  either  Scott  or  Bridgford  had  in 
the  property  insured.  Scott  was  not  present  when  the  policy  was 
fixed  up,  or  the  alteration  made,  this  being  done  by  the  local  agent  at 
the  instance  of  his  solicitor,  and  taking  their  recollection  of  the 
facts,  they  were  both  in  entire  ignorance  of  the  rights  or  purpose  of 
the  parties  for  whose  benefit  the  contract  of  insurance  was  made. 


James  Bridgford  v,  Manhattan  Fire  Ins.  Co.  297 

Scott's  statement,  connected  with  the  circumstances  attending  the 
transaction,  is  entitled  to  more  consideration  than  the  mere  want  of 
knowledge  or  recollection  of  facts  upon  the  part  of  appellee's  agent. 
He  avers  that  he  directed'  the  insurance  of  the  house  to  be  made 
for  Bridgford,  and  accepted  it  as  such  from  the  solicitor  who  had 
the  change  made  by  the  local  agent. 

At  the  time  the  insurance  was  effected  Scott  had  no  interest  in  the 
building.  He  was  tenant  under  a  rental  contract  with  Bridgford, 
holding  the  property  at  the  will  of  the  latter.  All  the  property  he 
had  in  the  building  was  some  tinware  of  the  value  of  five  hundred 
dollars,  and  this  was  insured  in  the  same  policy.  He  was  under  no 
obligation  to  insure  for  Bridgford  except  as  agent.  It  does  not 
appear  that  he  was  indebted  to  him  in  any  way  and  had  effected  the 
insurance  as  an  indemnity.  He  could  have  derived  no  benefit  from 
the  insurance  on  the  building.  That  it  belonged  to  Bridgford  is 
conceded,  and  no  motive  can  be  assigned  for  this  action  on  the  part 
of  Scott,  except  as  is  made  known  by  his  own  statement  'Hhat 
he  insured  the  property  for  the  owner,"  and  this  part  is  manifest 
from  the  policy  itself. 

Although  the  solicitor,  under  the  proof  in  this  case,  may  not  be 
regarded  as  the  agent  of  the  company,  still  he  was  soliciting  in- 
surance at  the  instance  or  by  the  consent  of  the  local  agent ;  and  the 
circumstances  conduce  strongly  to  show  that  this  agent  knew  the 
object  of  the  insurance  at  the  time  he  altered  the  policy,  and  that 
Bridgford  was  the  real  owner.  The  policy  upon  its  face  indicated 
that  Bridgford  had  an  interest  in  it,  and  a  knowledge  by  the  agent  of 
the  interest  of  that  intent  is  manifested  by  his  action  after  the  build- 
ing was  burned.  He  made  out  or  assisted  Scott  in  preparing  the 
proof  necessary  to  enable  Bridgford  to  get  his  money,  in  which  it  is 
recited  that  Scott  owned  the  tinware  and  Bridgford  the  building. 
The  claim  to  the  loss  sustained  by  the  destruction  of  the  building 
was  asserted  in  Bridgford's  name,  and  according  to  the  statement 
of  the  local  agent,  he  knew  the  day  succeeding  the  fire  that  Bridg- 
ford owned  the  building,  and  attempted  to  adjust  the  loss  with 
Bridgford  at  $1,880. 

The  amount  of  this  loss  was  also  ascertained  at  the  instance  of 
the  agent  in  his  endeavor  to  liave  the  property  rebuilt.  The  agent 
admits  that  he  agreed  with  Bridgford  that  $1,880  should  be  con- 
sidered the  value  of  the  property,  but  says  that  he  had  no  power  to 
bind  the  company  or  adjust  the  loss.  Although  he  may  not  have 
been  clothed  with  the  authority  to  make  a  final  adjustment  of  the 


298  Kentucky  Opinions. 

claims  asserted  by  Scott  and  Bridgford,  his  conduct  is  inconsistent 
with  the  idea  that  he  was  ignorant  of  the  purposes  for  which  the 
alteration  was  made.  The  agent  was  also  solicitous  that  the  com- 
pany should  pay  the  money  for  the  reason,  as  he  says,  the  refusal 
might  affect  his  business ;  but  we  are  inclined  to  the  opinion  that  if 
the  insurance  had  been  made  by  Scott  in  his  own  name,  and  without 
disclosing  the  interest  of  Bridgford  and  his  purpose  to  insure  for 
Bridgford,  it  would  have  been  such  a  palpable  violation  of  the  regu- 
lations of  the  company  as  would  have  deterred  the  agent  from  inter- 
ceding in  his  behalf  or  that  of  Bridgford.  The  fact  that  the  rules 
of  the  company  require  that  the  name  of  the  true  owner  shall  be 
disclosed,  or  rather  the  insured  being  required  to  disclose  the  extent 
of  his  interest,  if  he  is  not  the  real  owner,  cannot  be  held  to  protect 
the  appellee  from  responsibility  in  a  case  like  that.  The  ccwnpany's 
local  agent  and  his  solicitor  having  undertaken  to  make  this  con- 
tract, the  latter  acting  for  the  local  agent  as  well  as  the  assured,  if 
the  writing  is  to  be  reformed  upon  the  ground  of  a  mistake  alone  in 
its  execution,  the  facts  and  circumstances  are  so  str(Mig  as  to  the 
intention  of  both  parties,  and  as  to  what  the  real  contract  was,  that 
the  chancellor  ought  not  to  hesitate  to  say  that  the  building  was  in- 
sured for  Bridgiord  and  as  his  property.  The  proof  is  so  clear  as 
to  leave  no  reasonable  doubt;  and  circumstances  shown  to  have 
existed,  have  overwhelmed  the  testimony  by  which  their  existence 
is  attempted  to  be  separated. 

In  the  case  of  the  National  Fire  Insurance  Company  of  Baltimore 
V.  Crane,  16  Maryland  260,  a  case  similar  in  many  respects  to  the 
one  being  considered,  the  relief  was  denied  the  plaintiff  upon  the 
alleged  mistake,  for  the  reason  that  James  L.  Gray  and  brother, 
to  whom  the  policy  issued  (loss,  if  any,  payable  to  Crane  &  Co.), 
were  the  beneficial  owners  of  the  property,  or  had  an  interest  in  it, 
and  the  object  was  only  to  protect  Crane  &  Co.,  in  advances  made 
to  the  Grays  for  a  large  sum  of  money.  The  court,  in  that  opinion, 
says :  "There  is  nothing  in  the  condition  of  the  property,  in  regard 
to  ownership,  or  in  the  object  to  be  accomplished,  which  could  raise 
the  presumption  that  it  must  have  been  the  intention  of  the  parties 
to  insure  some  interest  that  W.  Crane  &  Co.  had  in  the  property, 
and  not  that  of  the  Grays."  The  reasoning  of  the  court  in  that  case 
indicated  clearly  that  if  the  facts  had  been  developed  as  they  appear 
in  this  record  the  relief  would  have  been  granted. 

If  Scott  had  been  the  real  owner  of  the  property,  and  the  agent 
of  the  company  at  his  request  had  made  the  loss,  if  any,  payable  to 


James  Burden,  et  al.,  v.  James  B.  Throckmorton.        299 

Bridgford,  we  see  no  reason  why  Bridgford  could  not  have  main- 
tained the  action ;  and  the  policy  in  this  case  having  been  issued  in 
the  first  place  to  Scott  alone  as  the  assured,  and  the  agent,  before 
the  policy  was  accepted,  having  been  informed  that  Bridgford  was 
the  owner,  and  was  to  be  the  assured  instead  of  Scott,  and  the  al- 
teration being  made  for  that  purpose,  in  the  manner  it  appears  in 
this  policy,  it  is  clear  that  Bridgford,  being  the  real  owner,  has  a 
right  of  action  against  the  company. 

Newman  v.  The  Springfield  Fire  &  Mprine  Insurance  Company, 
17  Minnesota  123.  There  is  no  evidence  in  the  case  authorizing  this 
court  to  assume  that  the  insurance  was  effected  by  Scott  without 
Bridgford's  knowledge,  nor  can  we  perceive  why  the  latter's  failure 
to  testify  is  to  affect  his  rights.  He  was  not  present  when  the  con- 
tract was  made,  but  swears  to  his  petition,  in  which  it  is  alleged  that 
Scott  made  the  insurance  for  him,  and  as  his  agent,  and  in  this  he 
is  fully  sustained  by  the  testimony  in  the  case.  The  api)ellee  has  re- 
ceived and  now  holds  the  premium  paid  on  this  insurance,  and 
should  not  be  allowed  to  say  upon  the  facts  of  this  record  that  ap- 
pellant is  not  entitled  to  recover  because  Scott  had  no  title  to  or  in- 
terest in  the  building.  The  facts  of  the  record  indicate  that  the 
agent  of  the  appellee  recognized  the  equity  and  justice  of  appellant's 
claim,  but  his  interest  was  subordinate  to  those  who  had  the  right 
to  control  his  action.  The  judgment  is  reversed  and  cause  remanded 
with  directions  to  render  a  judgment  for  the  appellants  for  the 
sum  of  $1,880,  with  interest  from  the  date  the  insurance  money  was 
payable. 

John  M.  Harlan,  for  appellant. 
William  Remecke,  for  appellee. 


James  Burden,  et  al.,  v.  James  B.  Throckmorton. 

Partition. 

Where  the  owner  of  three-fourths  interest  in  a  tract  of  four  hundred 
twenty-fllx  acres  of  ground  sells  his  interest,  and  instead  of  conveying 
his  undivided  interest,  conveys  a  stated  number  of  acres  which  was 
assumed  to  be  his  whole  interest,  his  purchaser  will  not  be  disturbed 
in  the  land  he  received  provided  it  is  found  in  a  partition  proceeding 
that  the  remaining  one-fourth  interest  in  value  can  be  carved  out  of 
the  tract  not  conveyed  to  such  purchaser. 


300  Kentucky  Opinions. 

APPEAL  FROM  ROBERTSON  CIRCUIT  COURT. 

January  13,  1875. 

Opinion  by  Judge  Pryor  : 

There  is  nothing  in  the  record  showing  that  Mordecai  Throck- 
morton was  ever  divested  of  title  to  his  interest  in  the  tract  of  land 
claimed  by  appellants.  He  may  have  received  more  of  his  father's 
estate  than  the  other  children,  but  there  has  been  no  settlement  of 
the  estate  or  any  proof  exhibited  showing  its  character  or  value. 
The  death  of  one  of  the  children  left  the  land  in  controversy  to  be 
divided  between  the  four  surviving  children,  Mordecai  being  one  of 
them.  At  the  time  he  sold  to  Burden  he  was  the  owner  of  (me- 
fourth  of  the  whole  tract  of  land,  that  contained  in  all  four  hundred 
twenty-six  acres,  and  shortly  after  the  sale  acquired  by  purchase 
the  interest  of  two  of  his  brothers,  by  which  he  became  the  absolute 
owner  of  three- fourths  of  the  whole  tract.  This  title  to  three-fourths 
of  the  land  Mordecai  obtained  prior  to  the  conveyance  made  to  the 
other  appellants.  The  conveyance  to  Burden  defined  the  boundary 
of  his  purchase,  leaving  three  hundred  twenty-six  acres  of  land 
out  of  which  to  allot  to  appellee  his  one-fourth  interest.  There  was 
then  no  reason  for  disturbing  the  sale  of  the  land  to  Burden,  or  in 
requiring  him  to  account  for  rents,  unless  the  one  hundred  acres 
conveyed  to  him  was  worth  greatly  more  (not  including  the  value 
of  the  improvements  placed  upon  the  land  by  him)  than  the  remain- 
ing portion  of  the  tract. 

The  chancellor,  under  the  circumstances,  ought  not  to  disturb  Bur- 
den's purchase  unless  it  is  made  to  appear  that  an  equal  division  of 
the  land  cannot  be  made  without  it,  and  as  one-fourth  of  the  whole 
tract  is  only  to  be  allotted,  Mordecai  having  owned  the  other  three- 
fourths,  we  see  no  reason  for  depriving  Burden  of  any  part  of  his 
purchase.  As  to  the  other  appellants,  they  must  abide  the  loss,  if 
any.  There  was  never  any  adverse  holding  on  the  part  of  their  ven- 
dor. 

The  judgment  below  is  therefore  affirmed  as  to  all  the  appellants 
but  James  Burden ;  and  as  to  him  the  judgment  is  reversed  and  cause 
remanded,  with  directions  to  allot  to  the  appellee  his  interest  out  of 
the  three  hundred  twenty-six  acres,  if  by  so  doing  he  can  obtain  his 
one-fourth  in  value  of  the  land.    The  appellee  is  entitled  to  his  costs 


J.  L.  ClEMMENS  V,  J.  S.  CONNELL,  ET  AL.  30I 

against  the  appellants,  except  Burden,  and  he  has  his  judgment  for 
costs  against  appellee. 

/.  A,  Buckler,  J.  &  J.  W.  Rodman,  for  appellants. 
B.  G.  Willis,  for  appellee. 


J.  L.  ClEMMENS  v.  J.  S.  CONNELX,  ET  AL. 

Mortgage  Foreclosure— Liens — Attorney  Fees — Rents. 

In  a  mortgage  foreclosure  where  there  are  second  liens  and  their 
holders  are  parties  and  all  matters  are  adjudicated,  the  priorities  of 
liens  settled  and  the  property  sold  and  the  second  lien  holders  whose 
securities  are  inadequate  make  no  effort  to  have  a  receiver  appointed 
to  collect  rents,  they  have  no  cause  of  action  against  either  the  mort- 
gagor or  mortgagee  for  such  rents. 

Attorney's  Fees. 

An  undertaking  to  pay  an  attorney's  fee  in  the  event  the  creditor  is 
compelled  to  sue,  is  in  the  nature  of  a  penalty  against  which  the  debtor 
will  be  relieved  in  equity.  However,  if  the  debtor  pays  such  fee  he 
cannot  recover  it  back. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT. 

January  14,  1875. 

Opinion  by  Judge  Cofer  : 

Whatever  may  have  been  the  rights  of  the  appellant  on  the  liability 
of  Mrs.  Clayton  in  relation  to  the  rent  of  the  mortgaged  premises,  it 
seems  to  us  that  it  is  too  late  after  judgment  of  foreclosure  to  liti- 
gate that  question.  The  appellant  knew  before  the  judgment  w^as 
rendered,  all  that  he  now  knows  affecting  Mrs.  Clayton's  liability. 
It  may  be  true  that  he  did  not  know  before  a  sale  was  made  that  it 
would  not  realize  enough  to  pay  both  the  mortgage  debts  and  the 
amount  for  which  he  had  a  Hen,  but  he  had  a  right,  as  the  holder  of 
a  junior  Hen,  to  contest  the  whole  or  any  part  of  the  mortgage  debts, 
or  to  urge  any  equitable  reasons  that  may  have  existed  for  an  abate- 
ment in  the  amount  due  the  prior  incumbrance,  and  it  was  his  duty 
to  do  so  before  judgment,  unless  he  intended  to  take  thp  risk  of  re- 
alizing the  whole  of  his  debt  out  of  that  part  of  the  proceeds  of  the 
sale  that  remained  after  satisfying  the  mortgages.  Having  seen 
proper  to  stand  by  with  a  knowledge  of  all  the  facts  in  regard  to  the 
charge  now  asserted  against  Mrs.  Clayton,  until  a  sale  was  made 
ind  confirmed,  he  must  abide  the  consequences. 


302  Kentucky  Opinions. 

But  if  this  ^%^as  not  the  case,  we  see  no  legal  or  equitable  ground 
upon  which  to  charge  Mrs.  Clayton  with  the  rents.  All  the  parties 
were  before  the  court  in  time  for  the  appellant  to  have  caused  the 
land  to  be  put  into  the  hands  of  a  receiver,  whereby  the  rents,  the 
loss  of  which  he  complains,  could  have  been  saved.  Mrs.  Clayton 
would  have  been  liable,  if  she  had  taken  possession  as  she  had  a 
right  to  do;  but  we  are  wholly  unable  to  perceive  upon  what  ground 
she  was  either  legally  or  morally  bound  to  take  possession  in  order 
to  secure  a  fund  for  the  appellant,  which  it  was  in  his  power,  as 
much  as  in  hers,  to  secure  for  himself.  She  was  already  secured,  and 
did  not  need  either  to  enter  the  possession  of  land  she  may  not  have 
been  in  condition  to  use  or  control,  or  to  assume  the  responsibility 
of  making  it  yield  the  rent  for  which  sjie  would  have  been  compelled 
to  account.  And  especially  is  this  true  in  view  of  the  fact  that,  al- 
though she  had  a  prior  right  to  the  rents,  the  appellant,  having  all 
the  parties  before  the  court,  could  have  procured  an  order  commit- 
ting the  land  to  the  hands  of  a  receiver.  Indeed,  he  is  the  only  per- 
son who  was  certainly  in  a  condition  to  have  compelled  both  CcMinell 
and  his  tenant  to  surrender. 

It  is  not  by  any  means  certain  that  Mrs.  Clayton  could  have  pos- 
sessed herself  of  the  land  without  the  aid  of  the  court.  It  is  certain 
that  she  could  not  lawfully  have  done  so  until  sometime  in  March, 
1872,  and  it  is,  to  say  the  least,  doubtful  whether  she  could  have  got- 
ten (x>ssession  after  that  without  a  resort  to  legal  proceedings.  Was 
she  bound  to  do  this  for  the  benefit  of  the  appellant  ?  Most  clearly 
not.  The  appellant  has  already,  by  his  suit,  subjected  the  property 
to  the  control  of  the  court ;  and  we  are  inclined  to  the  opinion  that 
Mrs.  Clayton  not  only  had  no  right  to  take  control  of  the  property, 
but  that  the  appellant  was  the  only  person  who  could  have  compelled 
its  surrender.  It  is  true  Mrs.  Clayton  had  the  legal  title  and  prior 
right  to  the  possession  and  to  the  profits ;  but  it  is  also  true  that  after 
suit  brought  by  an  incumbrancer,  the  property  was  under  the  control 
of  the  court,  and  the  rights  of  the  parties  were  all  subordinate  to  the 
power  of  the  chancellor  to  make  such  orders  as  were  demanded  by 
the  interest  of  all ;  and  if  Mrs.  Clayton  had  moved  on  her  own  ac- 
count for  the  appointment  of  a  receiver,  it  is  clear  that  her  motion 
would  have  been  denied,  because  she  could  not  have  shown  that  the 
security  for  her  debt  was  probably,  or  even  possibly  insufficient. 
Sec.  329,  Civil  Code. 

After  the  suit  was  commenced  and  the  parties  were  summoned,  if 
Council  or  his  tenant  were  in  possession,  the  chancellor  alone  should 


J.  L.  ClEMMENS  v.  J.  S.  CONNELL,  ET  AL.  303 

have  been  applied  to,  and  as  the  appellant  was  the  only  person  in 
danger  of  suffering  loss  on  account  of  the  insufficiency  of  the  prop- 
erty as  a  security  for  the  debt,  he  should  have  tal^en  actiwi,  if  he  de- 
sired to  secure  the  rents.  If  he  had  applied  for  an  order  directing 
the  receiver  to  take  charge  of  and  rent  the  property,  and  Mrs.  Clay- 
ton had  resisted,  the  authorities  cited  by  the  appellant  would  have 
been  applicable,  but  none  of  them  hold  a  prior  lien  liable  to  a  junior 
incumbrancer  for  mere  neglect  to  take  possession. 

The  sale  of  the  mortgaged  property  was  a  satisfaction  of  the  debts 
of  the  mortgagees  against  Council,  and  discharged  him  frc«n  liability 
to  them  as  completely  as  if  he  had  paid  their  debts  in  money ;  and  if 
any  usury  was  embraced  in  either  debt,  the  person  to  whom  it  was 
paid  became  liable  to  Connell,  and  not  to  the  appellant,  who,  being  a 
creditor  of  Council,  had  no  right  to  compel  the  payment  to  him  of 
usury  due  to  Connell.  It  is  true  appellant  alleges  that  he  did  not 
know  until  after  the  sale  had  been  confirmed  that  there  was  any 
usury  in  the  debts,  the  effect  of  which  is  that  he  did  not  know 
it  until  the  usury  had  been  paid  by  Connell,  and  he  thereby  ac- 
quired a  right  of  action  against  the  person  receiving  it  to  recover  it 
back.  But  the  evidence  fails  to  sustain  the  allegation  that  the  exist- 
ence of  the  usury  was  not  discovered  until  after  the  judgment  was 
rendered,  and  even  conceding  the  appellant's  right  to  recover  it  after 
judgment,  if,  in  fact,  he  did  not  sooner  discover  its  existence,  he 
fails  to  make  out  a  case  for  relief  on  this  ground. 

As  we  have  heretofore  decided,  an  undertaking  to  pay  an  attor- 
ney's fee  in  the  event  the  creditor  is  compelled  to  resort  to  legal  pro- 
ceedings for  the  collection  of  the  debt  is  in  the  nature  of  a  penalty, 
against  which  the  debtor  will  be  relieved  in  equity;  but  it  does  not 
thence  follow  that  if  the  debtor  pays  the  stipulated  fee  that  he  can 
recover  it  back,  or  that  any  other  condition  of  a  common  debtor  can 
avoid  such  an  obligation  by  a  mere  informal  objection  to  the  judg- 
ment without  pleading,  or  a  previous  intimation  in  any  form  that  he 
resists  the  payment,  when  no  objection  is  made  by  the  debtor. 

But  as  we  have  before  said,  the  appellant  is  not  a  creditor  of  Con- 
nell. Connell  owes  him  nothing,  and  as  the  appellant  bought  subject 
to  the  mortgages  wtiich  contained  stipulations  to  pay  attorney's  fees, 
and  as  it  is  neither  unlawful  nor  immoral  to  pay  or  to  receive  such 
fees,  there  is  no  hardship  in  the  treating  these  undertakings  of  Con- 
nell to  pay  as  valid  against  the  appellant,  especially  as  Connell  makes 
no  objection,  and  the  appellant  made  none  in  any  such  way  as  to 


304  Kentucky  Opinions. 

raise  the  question  of  the  validity  of  the  agreement  between  the  mort- 
gagees and  himself. 

Wherefore  the  jjidgment  is  affirmed  on  the  original  appeal,  and  on 
the  cross-appeal  of  Mrs.  Clayton.  The  judgment  on  the  supple- 
mental petition  is  reversed,  and  the  cause  is  remanded  with  directions 
to  dismiss  the  supplemental  petition  as  to  her  with  costs. 

Cummins  &  Willis,  for  appellant. 
Caldwell,  Harwood,  for  appellees. 


Christianna  Vinegar  v.  Andrew  Jackson. 

Pleading — Insufficient  Answer. 

Where  a  plaintiff  avers  he  is  the  owner  and  entitled  to  the  posses- 
sion of  real  estate,  an  answer  is  bad  which  denies  that  the  plaintiff  is 
the  owner  and  entitled  to  the  possession,  for  the  answer  might  be 
true  and  yet  the  plaintiff  may  be  the  owner  of  the  land. 

APPEAL  FROM  OWEN  CIRCUIT  COURT. 

January  14,  1875. 

Opinion  by  Judge  Cofer  : 

We  do  not  regard  the  answer  of  the  appellant  as  sufficient.  She 
denies  that  appellee  is  the  owner  and  entitled  to  the  possession  of 
twenty-four  acres  and  one  rood  of  land  in  her  possession. 

This  answer  may  be  true,  and  yet  the  appellee  may  be  the  owner 
of  the  land  sued  for.  It  would  be  strictly  true  if  he  was  the  owner, 
but  was  not  entitled  to  possession,  and  it  would  be  equally  true  al- 
though he  was  the  owner  and  was  also  entitled  to  the  possession,  if, 
in  fact,  there  was  not  as  much  land  in  the  tract  as  it  was  alleged  to 
contain.  Two  material  allegations,  ownership  and  right  of  posses- 
sion, are  grouped  together  with  an  allegation  of  the  quantity  of  land 
in  the  tract,  and  these  averments  are  denied  as  a  whole.  The  allega- 
tion as  to  quantity  was  mere  description,  and  whether  there  was  that 
exact  number  of  acres  or  not,  the  appellee  had  a  right  to  recover 
whatever  was  in  the  tract  if  he  was  the  owner,  and  entitled  to  the 
possession,  and  to  hold  the  answer  good,  would  be  to  hold  that  a  mis- 
take in  an  untrue  allegation  of  mere  matter  of  description,  would 
defeat  the  plaintiff's  right  of  recovery. 


C.  W.  Field  v.  Commonwealth.  305 

In  any  view  we  have  been  able  to  take  of  the  matter,  the  court 
properly  disregarded  the  answer. 
Judgment  affirmed, 

Strother  &  Orr,  for  appellant. 
Graver  &  Montgomery,  for  appellee. 


C.  W.  Field  v.  Commonwealth. 

T«z  Collector — ^Approval  of  Bond — Removal  from  Office. 

A  tax  collector  duly  appointed  and  who  files  a  bond  approved  by  the 
judge  cannot  be  deprived  of  his  office  because  of  insufficient  bond  until 
he  has  had  an  opportunity  to  show  the  bond  to  be  sufficient  or  has 
failed  to  furnish  additional  bond  within  a  reasonable  time  after  being 
ordered  to  do  so. 

APPEAL  FROM  JEFFERSON  COUNTY  COURT. 

January  15,  1875. 

Opinion  by  Judge  Cofer  : 

By  an  act  of  the  general  assembly,  which  became  a  law  on  the 
.24th  of  February,  1873,  the  judge  of  the  Jefferson  county  court  was 
authorized  to  appoint  a  back  tax  collector  for  said  county,  to  hold 
his  office  for  the  term  of  four  years.  The  second  section  of  the  act 
required  the  person  appointed  to  execute  a  covenant  to  the  common- 
wealth, with  sureties  to  be  approved  by  the  judge  of  the  county  court 
in  the  manner  and  form  required  of  sheriffs  for  the  collection  of  the 
revenue,  and  to  renew  the  same  annually  at  the  February  or  March 
term  of  the  court. 

The  appellant  having  been  appointed  to  the  office,  gave  the  re- 
quired bond  and  entered  upon  the  discharge  of  his  duties,  but  when 
he  gave  the  bond,  or  whether  he  had  renewed  it  since,  does  not  ap- 
pear in  the  record ;  but  we  infer  from  facts  appearing  in  the  record 
that  he  was  not  in  default  on  account  of  a  failure  to  renew  his  bond 
as  required  by  the  act. 

Prior  to  the  28th  of  September  last,  but  how  long  does  not  appear, 
the  county  judge  awarded  a  rule  against  the  appellant,  returnable 
on  that  day,  to  show  cause  why  he  should  not  be  required  to  give 
additional  security  as  back  tax  collector. 

To  this  rule  the  appellant  responded,  among  other  things,  that  his 
bond,  already  given  and  approved  by  the  court,  was  sufficient,  and  in 
support  of  the  sufficiency  of  his  bond,  he  filed  with  his  response,  affi- 

20 


3o6  Kentucky  Opinions. 

davits  tending  to  prove  that  the  sureties  on  his  bond  owned  estate 
subject  to  execution  worth  from  $95,000  to  $100,000  over  and  above 
their  debts  and  liabilities.  He  also  tendered  affidavits,  and  offered 
to  prove  by  a  witness  alleged  to  be  present  in  court,  that  the  whole 
amount  of  taxes  placed  in  his  hands  for  collection  amounted  to  about 
$107,000;  that  he  had  already  accounted  to  the  treasury  for  over 
$40,000  of  that  sum,  and  that  he  could  not  probably  collect  out  of  the 
remaining  $67,000  more  than  the  sum  of  $10,000,  before  the  March 
term  of  the  court,  when  he  would  be  bound  to  renew  his  bond.  No 
evidence  was  offered  on  the  part  of  the  commonwealth  to  show  that 
the  pecuniary  condition  of  either  of  appellant's  sureties  was  in  any 
respect  different  from  what  it  was  when  they  were  accepted,  or  that 
they  were  not  worth  as  much  as  had  been  stated  by  the  appellant, 
and  the  affiants  whose  affidavits  were  tendered ;  nor  was  there  any 
evidence  contradicting  the  statement  as  to  the  amount  of  taxes  origi- 
nally placed  in  his  hands  for  collection,  or  the  amount  already  ac- 
counted for. 

But  the  court  having  refused  to  hear  the  evidence  offered  by  the 
appellant  as  to  the  amount  of  taxes  in  his  hands  uncollected,  and 
the  amount  he  would  probably  be  able  to  collect  before  March,  when 
he  is  required  by  law  to  renew  his  bonds,  he  tendered  two  persons  as 
additional  sureties,  who  swore  they  were  the  owners  of  property 
subject  to  execution,  worth  in  the  aggregate  $42,000  over  and  above 
their  liabilities;  but  it  appeared  from  the  books  of  the  assessor  of 
Jefferson  county  that  these  persons  had  only  listed  their  property  for 
taxation  at  $7,000,  and  the  court  refused  to  accept  them ;  and  the 
appellant  failing,  as  the  order  recites,  "to  give  bond  sufficient  to  sat- 
isfy the  court,"  it  was  ordered  "that  the  office  of  collector  of  back 
taxes  of  Jefferson  county  be  and  is  hereby  declared  vacant  on  ac- 
count of  said  failing  to  give  additional  security  as  required,"  and 
from  that  order  this  appeal  is  prosecuted. 

The  act  creating  the  office  of  collector  of  back  taxes  for  Jefferson 
county,  places  the  incumbent  upon  the  same  footing  with  sheriffs, 
and  subjects  him  to  the  same  restrictions  and  penalties  to  which 
sheriffs  are  subjected  by  the. general  laws;  and  it  was  therefore 
competent  for  the  county  court  to  inquire  into  the  sufficiency  of  the 
appellant's  bond,  and  to  require  him  to  give  additional  security  if 
his  sureties  were  found  insufficient.   Sec.  25,  Chap.  100,  Gen.  Stat., 

p.  783. 

Such  a  proceeding  may  be  commenced  upon  the  personal  knowl- 
edge or  belief  of  the  judge;  but  unless  commenced  upon  his  own 


C.  W.  Field  v.  Commonwealth.  307 

knowledge  or  belief,  it  should  be  based  on  an  afiidavit,  and  the 
question  of  the  sufficiency  of  the  bond  should  be  first  tried  and  de- 
termined; and  if  it  is  found  insufficient,  reasonable  time  should  be 
allowed  within  which  to  obtain  additional  sureties.  In  this  case  no 
order  was  made  requiring  additional  security  until  the  5th  of  Octo- 
ber, and  on  the  same  day,  and  in  the  same  order,  the  appellant  was 
attempted  to  be  removed  from  office  for  not  doing  an  act,  for  the 
doing  of  which  no  time  whatever  was  given  after  the  decision  of 
the  court  requiring  it  to  be  done,  although  time  until  the  next  day 
only  was  asked  for  that  purpose. 

This  was  unduly  harsh,  and  would,  if  permitted  to  stand  unre- 
versed, not  only  deprive  the  appellant  of  his  office  without  a  moment 
of  time  after  the  court  had  made  its  order  requiring  additional  se- 
curity within  which  to  give  it,  but  would  also  deprive  the  common- 
wealth of  an  officer  deemed  important  by  the  legislature,  for  there 
is  no  authority  in  the  act,  or  elsewhere  that  we  are  aware  of,  to  ap- 
point a  successor  or  fill  the  vacancy. 

But  the  burthen  was  on  the  commonwealth  to  show  that  the  bond 
which  had  been  accepted  was  insufficient;  and  as  no  evidence  has 
been  offered,  the  order  requiring  additional  security  should  not  have 
been  made.  And  if  it  had  appeared  that  the  sureties  on  the  bond 
were  insufficient,  and  the  defendant  had  failed  to  give  additional 
security,  it  is  a  matter  of  grave  doubt  whether  the  court  had  power 
to  declare  the  office  vacant ;  but  as  the  question  does  not  necessarily 
arise  in  this  case,  we  mention  the  doubt  we  entertain  only  for  the 
purpose  of  saying  expressly  that  its  consideration  is  waived.  Brown, 
et  al,  V.  Grover,  Admr,,  et  al.,  6  Bush  3. 

We  have  heretofore  decided  in  Bartly  v.  Fraine,  et  al.,  4  Bush 
375,  that  upon  the  application  of  the  sureties  of  a  sheriff  for  addi- 
tional security,  if  such  additional  security  is  required  by  the  court 
to  be  given,  the  sheriff  may  be  removed  from  office  if  he  fails  to 
give  it  within  a  reasonable  time ;  but  this  was  held  in  view  of  Sec.  19, 
Art.  8,  of  the  Constitution,  which  provides  that  "The  general  assem- 
bly shall  direct  by  law  how  persons  who  now  are,  or  may  hereafter 
become  securities  for  public  officers,  may  be  relieved  or  discharged 
on  account  of  such  suretyship." 

The  evidence  in  the  record  satisfies  us  that  appellant's  bond  is 
amply  sufficient,  and  the  judgment  requiring  him  to  give  an  addi- 
tional bond,  and  declaring  the  office  vacant,  is  reversed  and  the 
cause  is  remanded  with  directions  to  dismiss  the  rule. 

Russell  &  Helm,  for  appellant. 


^-•*  Kentucky  Opinions. 

Ell£n  Martin  r.  George  W.  Martin. 


to  Kodiljr. 

When  a  canae  is  sabmitted  to  the  coon  on  motion  to  disolTe  an  in- 
jonction  H  is  error  for  the  oonrt  to  make  final  diqMisition  ci  the  order 
of  injunction  by  perpetnatine  It,  or  to  determine  the  iflBoes  inToWed 
in  the  action,  snch  iflSQea  not  bein^  safanitted  on  such  motion. 

APPEAL.  FROU  JEFFERSON  COURT  OF  COMMON  PLEAS. 

January  16,  1875. 

Opinion  by  Judge  Lint)say  : 

On  the  25th  of  October,  appellant  filed  a  demurrer  to  appellee's 
petition,  and  also  filed  notice,  and  moved  the  court  to  dissolve  the 
temporary  injunction.  Both  parties  filed  various  ex  parte  affidavits, 
and  by  consent  the  cause  was  set  for  trial  on  the  7th  of  November ; 
and  it  was  also  agreed  that  the  demurrer,  and  the  motion  of  appel- 
lant to  dissolve  the  injunction  should  be  continued  until  that  day 
for  hearing. 

On  the  8th  of  November  the  cause  was  assigned  to  the  9th  day 
of  January,  1874.  On  said  last  named  day,  an  order  was  made  which 
shows  that  the  motion  of  the  defendant  then  pending  in  the  cause 
was  heard  in  part ;  and  there  not  being  time  to  conclude,  the  further 
hearing  of  the  same  wcis  postponed  until  the  following  Monday. 

The  motion  referred  to  must  be  the  motion  to  dissolve  the  injunc- 
tion, as  there  was  no  motion  pending  in  the  action.  The  bill  of  ex- 
ceptions not  only  confirms  this  conclusion,  but  states  in  terms  that 
it  was  the  motion  of  the  defendant  to  dissolve  and  discharge  the  in- 
junction of  the  plaintiff.  That  was  filed  by  the  court.  Such  being 
the  case,  the  only  judgment  or  order  the  court  could  properly  render 
or  make,  was  either  to  sustain  or  overrule  the  motion,  or  if  proper 
so  to  do,  the  injunction  might  have  been  modified.  Sec.  323,  Civil 
Code  of  Practice. 

It  was  error,  upon  the  hearing  of  the  motion  to  dissolve,  to  make 
a  final  disposition  of  the  order  of  injunction  by  perpetuating  it,  and 
still  more  manifest  error  to  determine  the  issues  involved  in  the 
action  for  a  new  trial,  those  issues  not  having  been  submitted  to  the 
court  for  adjudication.  Judgment  reversed  and  cause  remanded  for 
further  proper  proceedings. 

Jeff.  Brown,  for  appellant. 


Louisville  &  Nashville  R.  Co.  v.  Commonwealth.       309 

Louisville  &  Nashville  R.  Co.  v.  Commonwealth. 

Criminal  Law — ^Appeals. 

Where  an  appeal  is  taken  in  a  criminal  case  the  record  must  be 
lodged  with  the  clerk  of  the  court  of  appeals  within  sixty  days  after 
the  judgment  is  rendered,  and  where  not  filed  within  that  time  it  will 
be  dismissed  on  motion. 

APPEAL  FROM  MARION  CIRCUIT  COURT. 

January  16,  1875. 

Opinion  by  Judge  Peters: 

This  is  an  indictment  for  a  misdemeanor.  Appellant's  motion  for 
a  new  trial  was  overruled  on  the  19th  of  August,  1874,  and  a  final 
judgment  rendered  against  it  the  same  day,  and  an  appeal  granted 
to  this  court ;  but  a  copy  of  the  record  was  not  lodged  with  the  clerk 
of  this  court  till  the  8th  of  December,  1874;  and  a  motion  is  now 
made  by  the  attorney-general  to  dismiss  the  appeal,  because  the  rec- 
ord was  not  lodged  with  the  clerk  within  the  time  prescribed  by 
law. 

Sec.  343,  Criminal  Code,  provides  that  the  appeal  should  be  prayed 
during  the  term  at  which  the  judgment  was  rendered,  and  shall  be 
granted  upon  the  condition  that  the  record  is  lodged  in  the  clerk's 
office  of  the  court  of  appeals  within  sixty  days  after  the  judgment. 

In  Commonwealth  v.  McCready,  2  Met.  376,  this  court  held  that 
this  section  of  the  code  is  imperative,  whether  the  appeal  is  prayed 
by  the  commonwealth  or  the  defendant;  and  in  Commonwealth  v^ 
Adams,  16  B.  Mon.  338,  it  is  said  that  if  the  record  be  not  lodged  in 
the  clerk's  office  of  this  court  within  sixty  days  after  the  judgment 
the  appeal  cannot  be  maintained.  From  the  language  of  the  section 
of  the  Criminal  Code  quoted,  independent  of  the  judicial  construction 
put  upon  it,  this  court  has  no  discretion.  The  motion  must  be 
sustained  and  the  appeal  be  dismissed. 

Rountree,  for  appellant. 
John  Rodman,  for  appellee. 


William  Bell,  et  al.,  v.  W.  W.  Bryant. 

Practice-^Pleading — Lien  of  Landlord  on  Produce,  etc 

A  petition  is  bad  on  demurrer  when  it  fails  to  aver  that  the  debt  is 
due  or  that  the  condition  exists  which  makes  it  due. 


3IO  Kentucky  Opinions. 

Lien  of  Landlord. 

While  under  the  statute  the  landlord  has  a  lien  on  the  produce  of 
the  premises  rented  under  certain  conditions,  such  a  lien  is  lost  if  such 
property  is  removed  from  such  rented  premises. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT. 

January  16,  1875. 

Opinion  by  Judge  Peters: 

At  the  time  the  petition  was  filed,  the  debts  claimed  by  appellee 
were  not  due,  and  he  prays  for  a  judgment  when  his  debts  are  due, 
against  ''all  the  defendants,  provided  the  said  assignees  shall  not 
surrender  a  sufficient  amount  of  said  oats  to  pay  his  debts,  and  all 
proper  relief." 

There  was  a  demurrer  to  the  petition,  which  was  overruled,  and  a 
judgment  rendered  against  Bell  and  Harbison,  the  assignees  for  the 
debt  claimed. 

Conceding  that  appellee  had  an  exclusive  lien  on  the  oats,  the  pro- 
duce of  the  premises  rented,  before  judgment,  could  have  been 
rendered  in  his  favor  against  appellants,  he  should  have  amended  his 
petition,  and  alleged  that  the  rent  was  then  due  and  unpaid,  and  as 
his  prayer  for  a  judgment  was  conditional,  that  the  oats  were  not 
surrendered  to  pay  his  debt,  which  he  alleged  were  sufficient  for  the 
purpose.  He  should  also  have  alleged  that  the  oats  or  a  sufficiency 
thereof  had  not  been  surrendered.  Consequently  the  demurrer  was 
improperly  overruled,  and  the  judgment  must  be  reversed  for  that 
reason.  It  is  deemed  proper  to  express  an  opinion  whether  appel- 
lee's lien  existed  on  the  oats  after  they  were  removed  from  the 
preinises. 

If  the  lien  existed  it  was  by  statute.  By  an  amendment  to  Art  2, 
Chap.  56,  of  Rev.  Stat.,  title  Landlord  and  Tenant,  approved  Feb- 
ruary 16,  1858,  2  Rev.  Stat.  99,  it  is  enacted  that  Sec.  14,  Art.  2, 
Chap.  56,  title  Landlord  and  Tenant,  be  and  the  same  is  repealed, 
and  in  lieu  thereof  it  is  enacted  that  a  landlord  shall  have  an  ex- 
clusive lien  on  the  produce  of  the  farm  or  premises  rented,  on  the 
fixtures,  on  the  household  furniture,  and  other  personal  property  of 
the  tenant  or  under  tenant,  found  upon  the  rented  premises,  after 
possession  is  taken  under  the  lease;  but  such  lien  shall  not  be  for 
more  than  one  year's  rent  due  or  to  become  due,  nor  for  any  rent 
which  has  been  due  for  more  than  four  months. 

The  lien  secured  by  this  statute,  by  its  terms,  is  upon  the  produce 


James  E.  Brown  v,  George  Schuler.  311 

of  the  farm  or  premises  rented,  the  fixtures,  the  household  furniture 
and  other  personal  property  of  the  tenant  or  under-tenant  found  on 
the  rented  premises,  etc  If  the  property  described  be  removed 
from  the  rented  premises,  the  landlord's  lien  is  lost,  and  his  con- 
dition is  no  better  than  that  of  other  creditors. 

The  judgment  must,  therefore,  be  reversed  and  the  cause  re- 
manded with  directions  to  sustain  appellant's  demurrer  to  the  peti- 
tion, and  for  further  proceedings  consistent  with  this  opinion. 

Caldwell  &  Harwood,  for  appellants. 
A,  E,  Roberts,  for  appellee. 


James  E.  Brown  v.  George  Schuler. 

Landlord  and  Tenant 

By  consenting  that  his  tenant  may  sub-lease  the  premises,  the  land- 
lord does  not  release  his  tenant  from  liability  or  accept  the  sub-lessee 
as  his  tenant 

APPEAL  FROM  JEFFERSON  COURT  OF  COMMON  PLEAS. 

January  16,  1875. 

Opinion  by  Judge  Pryor  : 

There  is  no  evidence  in  the  case  showing  that  the  appellee  ac- 
cepted Gray  and  Henry  as  his  tenants,  or  agreed  to  look  to  them 
for  the  rents,  and  release  the  appellant  Brown  from  any  liability 
therefor.  The  consent  of  appellee  was  obtained  in  order  that  Brown 
might  sublet  the  premises  to  Gray  and  Henry,  as  the  latter  had  no 
right  to  lease  them  without  the  consent  of  the  appellee.  The  statute 
requires  the  landlord's  consent  before  his  tenant  can  lease  the  prem- 
ises to  a  third  party,  and  if  his  consent  is  a  release  of  the  first  tenant 
from  responsibility  for  rent,  this  statute  intended  as  a  protection 
to  the  landlord,  had  not  only  failed  to  accomplish  its  purpose  in 
thus  protecting  his  rights,  but  (if  the  law  is  as  maintained  by  ap- 
pellant) operates  to  annul  by  implication  the  contract  of  renting 
without  his  consent.  The  sub-tenant,  by  the  express  provisions  of 
the  statute,  were  liable  to  the  appellee  for  the  rent,  as  well  as  the 
original  tenant,  Brown,  and  the  fact  that  the  appellee  received  rents 
from  those  who  were  liable  to  pay,  is  no  evidence  to  authorize  the 
conclusion  that  they  were  by  an  agreement  with  appellee  and  Brown 
substituted  and  accepted  as  tenants,  and  Brown  released.  If  such 
was  the  contract  why  the  necessity  of  having  appellee  consent  that 


312  Kentucky  Opinions. 

Brown  might  lease  to  these  parties,  for  if  they  were  to  be  the  ten- 
ants, and  not  Brown,  the  contract  of  leasing,  instead  of  being  made 
b\'  Brown,  could  have  been  made  by  the  appellee.  The  only  reason 
for  this  consent  1^  appellee  was  that  Brow^  had  no  power  to  sub- 
let without  obtaining  iL  All  that  appellee  seems  to  have  done  was  to 
receive  the  rent  from  these  sublessees,  who  were  liable  to  him  as 
well  as  Brown ;  and  the  fact  that  he  did  receive  the  rent  from  those 
he  could  have  compelled  to  pay  is  no  reason  why  Brown  should  be 
released. 

That  he  took  from  these  parties  less  than  the  amount  of  the 
original  renting  was  a  favor  to  them  as  well  as  the  appellant  There 
was  no  consideration  for  this  reduction,  except  the  kindness  or  lib- 
erality on  the  part  of  the  appellee,  who  seems  not  to  have  exacted 
the  full  amount  of  the  rent  bv  reason  of  the  hard  times.  Nor  was 
Brow*n  released,  by  the  acceptance  of  a  part  of  the  rent  from  the 
sheriff  by  the  appellee,  when  by  the  statute  the  latter  might  have 
insisted  upon  the  payment  of  a  year's  rent  before  the  goods  were 
removed.  It  was  not  the  duty  of  the  appellee  to  protect  the  interest 
of  the  appellant,  or  to  seek  to  collect  from  the  sheriff  any  part  of  the 
rent  Appellant  was  liable  to  him,  as  well  as  these  suUessees,  and  it 
was  the  duty  of  those  liable  to  pay  this  rent  to  see  that  the  sheriff 
first  satisfied  the  landlord's  claim.  The  amount  collected  from  the 
sheriff  only  lessened  the  sum  for  which  appellant  was  liable. 

In  the  case  of  Stimmel  &  Bryant  r.  li'aters,  2  Bush  282,  the  answer 
all^;ed  that  the  sub-tenant  had  been  recognized  as  such  by  the  land- 
lord, and  that  rents  had  been  received,  etc.  This  court  says  in  that 
case  that  if  appellee  accepted  Mrs.  Br>*ant  as  his  immediate  tenant, 
the  first  lessee  was  discharged,  etc.  So.  also,  is  the  case  where  the 
tenant  underlet  the  premises,  and  the  landlord  accepted  the  under- 
tenant as  his  tenant,  and  collected,  etc.  Taylor's  Landlord  and  Ten- 
ant, 379.  In  this  case  there  is  no  evidence  sufficient  to  establish  such 
an  acceptance,  or  any  agreement  to  release  the  appellant.  The  land- 
lord, by  the  Revised  Statutes,  could  have  recovered  his  rent  either  by 
a  distress  warrant  or  bv  an  action  at  law :  and  bv  Sec.  9,  of  the  same 
statutes,  page  93,  he  has  the  same  remedy  against  the  under-tenant 
that  he  has  against  the  original  lessee.  The  fact  that  he  collected 
the  rents  or  attested  the  contract  between  the  first  tenant  and  the 
under-tenant,  or  both  combined,  does  not  release  the  first  tenant. 

The  filing  of  the  amended  petition  was  evidently  upon  a  mistake 
of  facts.  All  the  writings  are  exhibited,  the  original  lease,  the  con- 
sent of  appellee  to  the  subleasing,  and  the  lease  from  Brown  to  Gray 


A.  L.  Greer  v.  E.  R.  Gard.  313 

&  Henry.  There  was  no  cancellation  of  the  original  agreement,  and 
it  was  proper  to  permit  the  filing  of  the  second  amended  pleading 
in  order  to  explain  the  mistake  committed  in  the  first  amendment. 
This  explanation  is  fully  made  and  sustained  by  all  the  facts  in  the 
case.  This  is  no  case  of  an  estoppel,  and  the  only  questicm  presented 
is  whether  the  appellee  is  bound  by  a  mistaken  state  of  facts  in  a 
pleading  sworn  to,  when  by  a  subsequent  pleading  the  mistake  is 
alleged  and  clearly  established  by  the  proof.  There  is  no  question 
but  what  this  can  be  done,  and  the  court  below  acted  properly  in 
permitting  the  mistake  to  be  corrected,  and  in  rendering  a  judgment 
for  the  rent. 
Judgment  aflirnied. 

Lee  &  Rodman,  for  appellant, 
Isaac  Green,  for  appellee. 


A.  L.  Greer  v.  E.  R.  Gard. 

Specific  Performance  of  Contract — ^Judgment. 

Where  plaintiff  asks  for  judgment  requiring  defendant  to  carry  out 
his  contract  and  convey  to  him  certain  real  estate,  or  that  the  court 
should  cause  such  conveyance  to  he  made  by  a  commissioner,  the  court 
has  no  authority  to  render  judgment  against  the  defendant  for  the 
value  of  the  land. 

Judgment— Jurisdiction. 

When  specific  performance  is  demanded  requiring  defendant  to  con- 
vey to  plaintiff  certain  real  estate,  and  the  court  renders  judgment  re- 
quiring such  conveyance  and  appointing  a  commissioner  to  make  the 
same,  such  judgment  is  final  and  the  court  has  no  jurisdiction  there- 
after to  change  such  judgment.  The  court  retains  jurisdiction  there- 
after in  said  cause  only  for  the  purpose  of  executing  the  judgment. 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

January  19,  1875. 

Opinion  by  Judge  Lindsay  : 

By  the  amended  petition  of  January  8,  1870,  appellee  practically 
abandoned  the  cause  of  action  set  up  against  the  two  Greers  and 
Simrall  in  his  original  petition. 

By  his  said  amended  petition  he  sought  to  specify  enforcement 
of  an  alleged  contract  with  A.  L.  Greer  by  which  the  latter,  in  con- 
sideration of  the  assignment  to  him  of  the  right  to  operate  a  certain 
brick  machine  in  the  counties  of  Kenton,  Campbell  and  Fayette,  un- 


314  Kentucky  Opinions. 

dertook  and  agreed  to  convey  to  appellee  six  acres  of  land  situated 
in  the  state  of  Illinois,  and  in  the  vicinity  of  the  city  of  Chicago. 
He  averred  that  the  title  to  said  land  was  held  by  Thomas  Greer 
in  trust  for  A.  L.  Greer,  and  prayed  that  A.  L.  Greer  and  wife  and 
Thomas  Greer  and  wife  "be  adjudged  to  convey  said' title  to  the 
plaintiff  (him),  by  a  deed  with  covenants  of  general  warranty,  and 
in  case  of  a  refusal  to  do  so  after  a  reasonable  time,  then  that  this 
court  do  order  and  direct  such  conveyance  by  its  commissioner,  and 
that  he  be  directed  to  insert  in  such  conveyance  such  covenants  of 
warranty  as  plaintiff  is  entitled  to  under  said  contract,  and  for  his 
costs  and  proper  relief." 

By  another  amended  petition,  filed  July  9,  1870,  appellee  set  out 
the  manner  in  which  Thomas  Greer  became  invested  with  the  title 
to  the  six  acres  of  land,  and  prayed  as  in  the  first  amended  petition. 

In  this  state  of  the  pleadings,  on  January  19,  1871,  the  chancellor 
rendered  a  judgment  dismissing  appellee's  petition  as  to  Simrall  and 
Thomas  Greer,  and  adjudging  that  A.  L.  Greer  should  make  or 
cause  to  be  made  to  Gard  a  good  title  to  the  six  acres  of  land  in  Illi- 
nois, and  in  case  he  failed  to  do  so,  the  judgment  provided  that  an 
order  would  be  made  to  ascertain  the  value  of  said  land,  and  a  judg- 
ment rendered  against  Greer  for  the  amount  it  might  be  found  to 
be  worth.  This  latter  part  of  the  judgment  was  not  warranted  by 
the  pleadings.  Gard  asked  for  no  such  relief ;  and  as  the  case  stood 
it  may  well  be  doubted  whether  the  court  had  jurisdiction  to  render 
any  such  judgment. 

Gard  seems  to  have  realized  this  difficulty,  and  on  March  30,  1871, 
he  moved  the  court  for  an  order  directing  the  master  commissioner 
to  convey  to  him  by  deed  the  property  in  Chicago,  as  described  in 
the  pleadings  and  judgment.  On  April  15,  1871,  this  motion  was 
sustained,  and  an  order  made  directing  the  master  to  convey,  and 
adjudged  to  Gard  his  costs. 

This  was  a  final  order  in  the  action.  The  alternative  judgment  of 
January  19,  which  was  interlocutory  in  its  nature,  was  merged  into 
this  last  named  judgment.  Gard  had  elected  to  take  a  conveyance  of 
A.  L.  Greer's  title  to  the  Chicago  property  in  satisfaction  of  his  claim, 
and  upon  his  own  motion  the  chancellor  adjudged  to  him  the  relief 
desired.  The  cause  remained  upon  the  docket  for  the  sole  purpose 
of  executing  the  judgment  last  rendered. 

The  subsequent  order  of  the  court,  entered  on  March  19,  1872, 
was  wholly  authorized;  and  the  judgment  of  December  12,  1873,  is, 
therefore,  necessarily  erroneous,  independent  of  the  court  of  au- 


Agnes  McLure  v,  George  Wolfe,  et  al.  315 

thority  in  the  court.  The  said  last  named  judgment  is  not  supported 
by  the  pleadings  in  the  case.  It  gives  to  the  appellee  a  character  of 
relief  he  does  not  ask.  The  plea  of  the  statute  of  limitation  bars 
the  appeal  from  the  judgment  rendered  on  April  15,  1871. 

The  order  of  March  19,  1872,  and  the  judgment  of  December  12, 
1873,  are  erroneous  and  are  both  reversed. 

The  cause  is  remanded  for  the  enforcement  of  the  judgment  of 
April  15,  1871,  in  such  manner  as  the  court  below  may  deem. just 
and  equitable  to  the  parties,  and  not  inconsistent  with  the  spirit  of 
said  judgment.    Upon  the  cross-appeal,  the  judgment  is  afHrmed, 

R.  D,  Handy,  for  appellant. 
Stevenson  &  O'Hara,  for  appellee. 


Agnes  McLure  v.  George  Wolfe,  et  al. 


Husband  and  Wife— Estate  of  Wife— Chattels. 

Marriage  invests  the  husband  with  absolute  title  to  all  the  chattels 
of  the  wife  not  held  as  separate  estate  whether  owned  at  the  time  of 
or  acquired  after  marriage,  and  where  goods  are  bought  in  the  name 
of  the  wife  and  paid  for  with  her  money,  yet  as  at  the  time  she  had 
not  been  empowered  to  hold  property  or  to  trade  as  a  feme  sole  the 
title  vested  in  her  husband,  and  was  subject  to  be  seized  to  pay  his 
debts. 

Chattels. 

If  chattels  are  sold  to  the  wife  by  a  third  person  for  her  separate 
use  and  come  to  the  possession  of  the  husband,  the  legal  title  vests  in 
him,  and  he  will  hold  it  as  trustee  for  the  wife. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

January  20,  1875. 

Opinion  by  Judge  Cofer: 

Although  the  goods  purchased  of  Miller  are  shown  to  have  been 
bought  in  the  name  of  Mrs.  McLure,  and  were  paid  for  with  her 
means,  and  never  reduced  to  possession  by  her  husband,  yet,  as  at 
the  time  of  the  purchase  she  had  not  been  empowered  to  hold  prop- 
erty, or  to  trade  as  a  feme  sole,  the  title  vested  in  her  husband,  and 
the  property  became  his,  and  was,  therefore,  subject  to  seizure  and 
sale  to  pay  his  debts.  The  post-nuptial  agreement  between  her  and 
her  husband  that  she  should  hold  the  property  as  her  separate  estate. 


3i6  Kentucky  Opinions. 

may  have  given  her  an  equity  as  against  him,  but  was  wholly  in- 
operative as  to  the  husband's  creditors. 

If,  instead  of  purchasing  the  goods  of  Miller  with  her  funds,  the 
same  goods  had  come  directly  to  Mrs.  McLure  from  the  estate  of 
P.  N.  Bradley,  it  would  not  need  either  argument  or  authority  to 
prove  that  the  title  would  have  vested  in  her  husband ;  and  that  the 
articles  were  purchased  in  her  name  and  paid  for  with  her  money 
cannot  change  the  rule. 

The  case  of  McClanahan  v,  Beasley,  17  B.  Mon.  in,  is  not  like 
this  case.  There  the  slave  in  contest  was  sold  to  Mrs.  Hopper  as 
her  own  separate  estate,  and  this  fact,  the  court  held,  vested  her  with 
an  equitable  right  to  the  slave,  and  made  her  husband  a  trustee  for 
her.  In  this  case  Mrs.  McLure  does  not  seem  to  have  had  a  sep- 
arate estate,  and  she  therefore  had  no  such  equity  as  made  her  hus- 
band a  trustee.  To  hold  that  the  mere  fact  that  the  goods  were 
purchased  in  her  name,  with  her  money,  made  her  husband  a  trustee, 
would  be  to  set  at  naught  the  long  settled  and  universal  rule  that 
marriage  invests  the  husband  with  absolute  title  to  all  the  chattels 
of  the  wife  not  held  as  separate  estate,  whether  owned  at  the  time 
of  or  acquired  after  marriage.  The  purchase  from  Miller  in  the 
name  of  Mrs.  McLure,  without  a  stipulation  in  the  contract  that 
the  goods  should  be  held  by  her  as  her  separate  estate,  vested  the 
absolute  title  in  her  husband  as  fully  and  as  completely  as  if  the 
purchase  had  been  made  in  his  name,  and  no  agreement  between  the 
husband  and  wife  could  divest  him  of  the  title  so  as  to  defeat  his 
creditors.  Mrs.  McLure  was  then  incapable  of  holding  personal 
property  in  her  owfn  name,  nor  could  her  husband  hold  it  for  her, 
unless  when  it  came  to  his  hands  it  was  separate  estate  in  the  tech- 
nical sense. 

The  case  of  Miller  fmd  Wife  z\  Edwards,  et  al,,  7  Bush  394,  which 
is  also  relied  on  by  counsel  for  the  appellant,  is  unlike  this  case.  The 
furniture  attached  in  that  case  was  purchased  with  money  given  by 
Mrs.  Miller's  mother,  to  purchase  it  for  her  separate  use;  and  it 
seems  to  have  been  so  purchased  and  recognized  by  the  husband. 
The  notes  attached  were  held  by  a  third  person  for  Mrs.  Miller, 
and  were  payable  to  her  for  her  separate  use ;  and  upon  the  principles 
decided  in  McClanahan  v.  Beasley,  might  ^vell  be  held  not  subject  to 
the  husband's  debts,  because  they  were  the  separate  estate  of  the 
wife ;  and  being  her  separate  estate,  the  husband  was  held,  on  that 
account  alone,  to  be  a  trustee  for  the  wife.  But  in  Miller  and  Wife 
V.  Edwards,  et  al.,  the  decision  was  still  more  obviously  right  upon 


City  of  Lexington  v.  J.  H.  Baker,  et  al.  317 

another  ground.  The  creditors  of  the  husband  had  come  into  a 
court  of  chancery  to  subject  that  which  in  equity  and  good  con- 
science belonged  to  the  debtor's  wife,  and  which  they  could  not  reach 
without  the  aid  of  the  chancellor.  In  such  cases  it  is  well  settled 
that  the  creditor  will  be  postponed  until  equitable  provision  is  made 
for  the  wife.  Tobin's  Gdn,,  z\  Dixon  and  Wife,  2  Met.  422 ;  Sims 
V,  Spalding,  2  Duvall  121. 

The  rule  is  that  if  chattels  sold  to  the  wife  by  a  third  person  for 
her  separate  use,  come  to  the  possession  of  the  husband,  the  legal 
title  will  vest  in  him,  and  he  will  hold  it  as  trustee  for  the  wife. 
McClanahan  v.  Beasley,  17  B.  Mon.  iii.  But  otherwise,  the  title 
and  beneficial  interest  will  vest  absolutely  in  the  husband,  discharged 
from  all  equities  in  the  wife.  The  ex  parte  proceeding  to  have  Mrs. 
McLure  empowered  under  the  statute  to  act  as  a  feme  sole,  did  not 
vest  her  with  any  right  to  the  goods  in  contest,  the  sole  object  and 
effect  of  that  proceeding  being  to  remove  the  disabilities  of  covert- 
ure. But  if  the  judgment  would  otherwise  have  operated  to  vest  the 
title  in  her,  it  could  not  do  so  in  this  case,  because  the  execution 
came  to  the  hands  of  the  sheriff  and  created  a  lien  on  the  property 
on  the  6th  of  March,  and  the  decree  was  not  rendered  until  the  day 
after.  In  any  view  we  have  been  able  to  take  of  the  case,  the  judg- 
ment is  right,  and  is  therefore  affirmed. 

/.  C.  Walker,  John  Roberts,  for  appellant, 
William  Mix,  for  appellees. 


City  of  Lexington  v,  J.  H.  Baker,  et  al. 
J.  H.  Baker,  et  al.,  v,  Kentucky  University,  et  al. 

Cities — ^Improvement  of  Streets — Ordinances— Contracts. 

The  city  council  has  the  power  to  improve  the  streets,  imposing  the 
burden  equally  upon  all  the  citizens,  and  make  contracts  by  its  au- 
thorized agents,  and  although  there  may  be  a  departure  from  the  speci- 
fications contained  in  the  ordinance,  having  accepted  and  approved 
the  work,  it  must  pay  for  it  by  making  it  a  burden  upon  all. 

Ordinance— Contracts. 

Where  an  ordinance  provides  for  the  improvement  of  a  street  and 
for  the  pajrment  therefor  by  the  property  holders  whose  property  bor- 
ders on  such  street,  before  the  property-owners  can  be  made  to  pay  for 
such  work  it  must  be  shown  that  the  contract  and  specifications  are 
in  accordance  with  the  provisions  of  the  ordinance,  and  be  approved 
by  the  council  and  not  be  left  to  the  discretion  of  the  engineer  alone. 


3i8  Kentucky  Opinions. 

APPEAL  FROM  PAYETTE  CIRCUIT  COURT. 
January  20,  1876. 

Opinion  by  Judge  Pryor  : 

On  the  7th  of  May,  1867,  the  city  council  of  Lexington  passed  an 
ordinance  directing  certain  streets  of  that  city  to  be  graded  and 
macadamized  at  the  cost  of  the  owners  of  the  lots  or  parts  of  lots 
fronting  on  said  streets.  Sec.  3  of  the  ordinance  provides  that  the 
city  engineer  shall  proceed  "to  make  a  survey  of  said  streets,  or 
parts  of  streets,  establish  the  proper  grades,  and  furnish  the  mayor 
with  proper  specifications  for  the  work."  By  Sec.  6  of  this  ordinance, 
the  report  of  the  committee  on  improvements  was  adopted,  requir- 
ing the  streets  to  be  macadamized  from  curb  to  curb,  designating 
the  manner  in  which  it  was  to  be  done,  as  well  as  the  size  and  depth 
of  stone,  each  street  to  be  macadamized  from  "curb  to  curb,  with 
six  inches  of  small  sledged,  and  six  inches  of  cracked  rock,  mak- 
ing twelve  inches  in  the  center  of  the  street,  and  to  gradually  slope 
to  four  inches  at  either  curb." 

On  the  4th  of  July,  1867,  the  council  ordered  that  the  details  of 
the  improvements,  such  as  width  of  streets,  gutters,  etc.,  be  left 
with  the  committee  on  improvements  and  repairs,  and  the  city  en- 
gineer. It  is  to  be  inferred  from  the  record  that  these  streets  di- 
rected to  be  improved  were  at  the  time  the  recognized  streets  of  the 
city,  and  the  direction  to  ascertain  the  width  of  the  streets  was  for 
the  reason  that  it  must  necessarily  constitute  a  part  of  the  details  of 
the  contract.  The  mode,  specifications  and  character  of  the  macada- 
mizing was  prescribed  by  the  council  in  adopting  the  report  of  the 
committee  on  improvements,  and  made  part  of  the  ordinance. 

A  contract  was  made  by  the  city  with  the  appellee,  Baker,  and 
the  improvements  made  and  accepted  by  the  council.  It  is  now  in- 
sisted that  as  there  was  no  mode  or  specifications  adopted  by  the 
council  and  prescribed  in  the  ordinance  for  the  grading  of  these 
streets,  that  body  had  no  power  to  delegate  this  right  to  the  engi- 
neer. It  does  not  appear  from  any  ordinance  or  resolution  adopted 
by  the  council  that  the  character  or  kind  of  grade  had  been  ascer- 
tained ;  but  the  whole  legislation  on  this  subject  was  confined  to  the 
engineer  and  the  committee  on  improvements.  These  agents  of  the 
council  were  authorized,  in  eflfect,  to  make  at  their  discretion  such 
improvements,  by  way  of  grading  these  streets,  as  in  their  judg- 
ment best  promoted  the  interest  of  the  city  and  property  holders. 
There  is  no  material  distinction  between  the  present  case,  so  far 


City  of  Lexington  v.  J.  H.  Baker,  et  al.  319 

as  the  question  as  to  the  grading  of  these  streets  is  made,  and  that 
of  Hydes  &  Goose,  Assignees,  z\  Joyes,  4  Bush  464,  and  the  princi- 
ple recognized  in  that  case  must  be  applied  to  the  one  under  con- 
sideration. The  city  council  alone,  by  the  nth  section  of  the  charter, 
had  the  power  to  have  the  streets  graded  preparatory  to  macadamiz- 
ing, and  are  to  determine  the  necessity  for  such  an  improvement,  as 
well  as  its  kind  and  character.  Whether  the  improvement  is  to  be 
directed  by  ordinance  or  resolution,  or  by  the  unanimous  vote  of  the 
council  or  a  bare  majority,  can  make  no  difference.  The  same  rea- 
son applies  for  the  recognition  of  the  contract  in  the  one  case  as 
the  other;  the  power  being  vested  in  the  council  alone  cannot  be 
delegated  to  others. 

If  the  report  of  the  engineer  in  fixing  the  grade,  is  injurious  to 
the  property  holder,  and  is  required  to  be  acted  on  by  the  council 
before  the  work  is  undertaken,  those  of  the  citizens  compelled  to 
pay  for  the  improvements  have  an  opportunity  of  making  known 
their  objections  and  defeating  the  passage  of  the  ordinance.  On  the 
other  hand,  if  it  be  conceded  that  their  power  can  be  delegated, 
the  engineer  acting  as  the  agent  of  the  council  may  create  any  ex- 
penditure in  making  the  improvement,  howiever  onerous  on  the  tax- 
payer, and  there  is  no  escape  from  its  payment.  "The  amount  of 
improvement,  as  well  as  its  kind  and  character,  must  be  ascertained 
before  it  is  done." 

It  is  maintained,  however,  that  the  lot  owners  are  liable  for  the 
cost  of  macadamizing,  for  the  reason  that  the  report  of  the  com- 
mittee on  improvements  contained  all  the  necessary  specifications 
for  this  work,  and  was  adopted  by  the  council  and  made  part  of  the 
ordinance.  The  objection  made  as  to  the  manner  in  which  the  ordi- 
nance was  passed  constitutes  no  defense.  The  mayor  is  the  presiding 
officer  of  the  council,  and  the  record  shows  that  every  member  of 
that  body,  except  the  mayor,  voted  for  its  passage,  and  the  latter 
recognized  its  validity  by  signing  the  minutes  of  the  proceedings 
adopted  it,  and  in  announcing,  as  he  must  have  done,  that  the  ordi- 
nance had  passed,  thus  giving  not  only  his  implied,  but  express 
assent  to  the  action  of  the  council  in  passing  it,  and  is  as  effectual 
as  if  it  appeared  from  the  record  that  his  vote  had  been  cast.  City 
of  Lexington  v.  Headley,  et  al,  5  Bush  508. 

If  the  contract  made  by  the  mayor  is  in  pursuance  of  the  ordi- 
nance, containing  such  specifications  as  are  therein  prescribed,  there 
is  no  reason  why  the  lot  owners  should  not  be  required  to  pay.  The 
contract  made  with  the  appellee  requires  the  mettle  to  be  twelve 


320  Kentucky  Opinions. 

inches  in  center,  eight  inches  at  edge,  and  ten  inches  half  way  be- 
tween center  and  edge,  three  feet  next  curb  to  be  paved  with  stone 
set  on  end  eight  inches  deep.  The  ordinance  required  the  stone  to 
be  twelve  inches  in  center,  and  to  slope  to  four  inches  at  either  curb. 
The  difference  between  the  ordinance  and  contract  is,  that  by  the 
ordinance,  the  depth  of  stone  is  to  be  four  inches  at  either  curb, 
and  by  the  contract  eight  inches,  and  in  addition,  three  feet  next  to 
curb  to  be  paved  with  stone  eight  inches  deep,  and  ten  inches  of 
stone  half  way  between  the  center  of  the  street  and  its  edge.  The 
work,  as  required  by  the  specifications  of  the  contract,  would  neces- 
sarily increase  the  cost  of  the  improvement  and  thereby  impose  a 
tax  upon  the  lot  owners,  not  by  reason  of  the  ordinance,  but  by  rea- 
son of  a  contract  made  by  the  mayor.  A  slight  variance  between  the 
ordinance  and  contract  might  not  constitute  any  defense  to  an  action 
against  the  lot  owner,  as  some  of  the  details  incidental  to  its  execu- 
tion could  not  necessarily  be  anticipated,  but  when  the  change  is 
such  as  to  increase  materially  the  burden  upon  the  lot  owners,  as  in 
this  case,  it  comes  within  the  rule  established  in  the  case  of  Hyde  & 
Goose,  Assignee,  v.  Joyes,  and  no  recovery  can  be  had  in  this  action 
against  the  lot  owners.  There  is  no  proof  in  the  record  showing  the 
difference  in  the  cost  between  the  work  specified  in  the  ordinance 
and  that  in  the  contract ;  but  it  may  be  legitimately  inferred  that  it 
would  add  to  the  expenditure  not  less  than  twenty  per  cent.  The 
city  council,  having  the  power  to  improve  the  streets,  imposing  the 
burden  equally  upon  all  the  citizens,  making  a  contract  by  its  au- 
thorized agent,  although  there  may  be  a  departure  from  the  specifi- 
cations contained  in  the  ordinance,  and  having  accepted  and  ap- 
proved the  work,  must  pay  for  it  by  making  it  a  common  burden 
upon  all. 

The  judgment  of  the  court  below  is  aKrnied  on  both  appeals.  The 
City  of  Lexington  v.  Baker,  et  al.,  and  Baker,  et  aL,  v.  Kentucky 
University,  et  al. 

M.  C.  Johnson,  T.  K,  Hunt,  for  appellant. 

Waters,  John  B.  Huston,  Breckenrdidge,  Buckner,  for  appellees. 


W.  W.  HuLiNGS  V,  William  Martin. 

Statute  of  Limitations — Jurisdiction. 

The  statute  of  limitations  continues  to  run  until  an  action  is  com- 
menced in  a  court  having  Jurisdiction. 


W.  W.  HuLiNGS  V.  William  Martin.  321 

Jurisdiction. 

The  beginnliig  of  an  action  in  a  county  where  defendant  does  not 
live  and  the  service  of  process  on  him  in  a  county  where  he  lives, 
other  than  the  county  in  which  the  action  is  brought,  gives  the  court 
no  jurisdiction,  and  the  commencing  of  such  an  action  will  not  pre- 
vent the  statute  of  limitations  from  running. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

January  21, 1875. 

Opinion  by  Judge  Cofer  : 

Process  was  served  upon  the  appellee  in  Jefferscm  county,  and 
the  common  pleas  court  had  jurisdiction  of  the  case.  Sec.  106, 
Civil  0)de. 

The  law  and  facts  were  submitted  to  the  court,  and  the  facts 
stated  in  the  answer  were  admitted  to  be  true;  and  as  it  does  not 
appear  from  the  record  w|hat  evidence  was  heard  on  the  trial,  it 
must  be  presumed  that  the  evidence,  if  any  was  heard,  authorized 
judgment  to  be  rendered  for  the  appellee. 

If  it  be  assumed  that  the  facts  stated  in  the  answer  and  admitted 
to  be  true,  constituted  all  the  evidence  heard  on  the  trial,  then  the 
judgment  rendered  was  more  favorable  to  the  appellant  than  he  was 
entitled  to.  It  is  not  important  upon  what  ground  the  court  dis- 
missed the  petition,  if  the  dismissal  was  right  on  any  ground,  the 
judgment  must  be  affirmed. 

One  of  the  facts  stated  in  the  answer  and  admitted  to  be  true,  is 
that  the  appellee  resided  in  Shelby  county  when  the  suit  was  com- 
menced, and  that  this  was  known  to  the  appellant  at  the  time. 
Whether  the  Jefferson  common  pleas  court  would  acquire  juris- 
diction depended  wholly  upon  the  accident  whether  the  appellee 
would  come  into  the  county,  so  that  a  summons  might  be  served  on 
him  there.  Until  process  was  served  in  Jefferson  county,  that  court 
had  no  jurisdiction;  and  when  it  acquired  jurisdiction,  and  not  until 
then,  did  the  action  suspend  the  running  of  the  statute ;  and  as  more 
than  fifteen  years  had  then  elapsed  after  the  action,  the  note  was 
barred. 

It  is  not  a  question  whether  the  appellant  prosecuted  his  action 
in  good  faith ;  this  might  be  admitted  without  in  any  way  affecting 
the  question.  Until  an  action  was  commenced  in  a  court  having 
jurisdiction,  the  statute  continued  to  run;  and  as  the  Jefferson  court 
of  comnuxi  pleas  had  no  jurisdiction  of  the  person  of  the  defendant 
except  by  service  of  a  summons  in  that  county,  its  jurisdiction  never 

21 


322  Kentucky  Opinions. 

attached  until  the  summons  was  served.  If  the  action  had  been  com- 
menced in  Shelby  at  the  time  the  petition  was  filed  in  Jefferson,  and 
process  had  not  been  served  until  the  time  at  which  it  was  served 
in  this  case,  the  question  of  diligence  and  good  faith  in  prosecuting 
the  action  would  have  arisen,  for  as  appellee's  residence  was  then 
in  Shelby,  the  court  of  that  county  would  have  had  jurisdiction  from 
the  filing  of  the  petition ;  and  a  summons  issued  in  good  faith  there 
would  have  suspended  the  statute.  Sees.  io6,  107,  Civil  Code. 
Judgment  affirmed. 

John  B.  Cochran,  for  appellant. 
Diipey  &  Middleton,  for  appellee. 


M.  J.  Brewer  v.  C.  Mercke. 


Married  Women— 4 

A  married  woman  who  Is  a  member  of  a  firm  indebted  to  A  but 
who  is  not  empowered  to  bind  herself  as  provided  by  the  statute,  can- 
not be  required  to  answer  as  a  garnishee  at  the  suit  of  A's  creditors. 
Not  being  bound  to  A  she  cannot  be  required  to  answer  to  his  creditors. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

January  21,  1876. 

Opinion  by  Judge  Lindsay: 

It  seems  that  T.  G.  Brewer  &  Co.  were  indebted  to  Moore  by 
simple  promissory  note,  in  the  sum  of  two  hundred  fifty  dollars. 

Mrs.  M.  J.  Brewer  was  a  member  of  the  firm  of  T.  G.  Brewer  & 
Co.  Upon  a  rule  to  show  cause  why  she  should  not  be  compelled, 
as  a  garnishee,  to  pay  the  amount  of  said  note  into  court,  Thomas 
Brewer  responded  that  at  the  time  the  alleged  indebtedness  to  Moore 
was  incurred,  and  at  the  time  the  note  to  him  was  executed,  and 
ever  since,  she  was  and  still  continued  to  be  a  feme  covert,  and  she 
pleaded  and  relied  on  her  coverture. 

The  record  shows  that  the  cause  was  heard  upon  the  sufficiency 
of  this  response.  There  is  nothing  before  us  from  which  it  can  be 
inferred  that  evidence  of  any  kind  was  heard. 

The  court  adjudged  the  response  insufficient,  and  the  rule  against 
Mrs.  Brewer  has  been  made  absolute,  and  an  attachment  awarded. 
This  was  error.     Although  Mrs.  Brewer  seems  to  have  been  the 


George  M.  Adams  v,  Olivia  Collier.  323 

partner  of  her  son,  it  does  not  appear  that  she  had  been  empowered 
to  bind  herself  by  contracting  as  a  feme  sole. 

Her  contract  with  Moore  was  not  enforceable,  and  the  note  held 
by  him,  so  far  as  she  is  concerned,  is  a  nullity.  Her  coverture  would 
defeat  a  recover^'  by  the  holder  of  the  note,  and  the  creditors  of 
Moore  certainly  can  claim  nothing  from  Mrs.  Brewer  that  Moore 
himself  could  not  compel  her  to  pay.  The  order  appealed  from  ip 
reversed,  and  the  cause  remanded  with  instructions  to  dismiss  the 
proceedings  as  to  Mrs.  Brewer. 

A.  L,  Pope,  for  appellant. 
Green  &  Kohn,  for  appellee. 


George  M.  Adams  v,  Olivia  Collier. 


Dower— Husband  and  Wife-*-Lien  for  Purchase  Money — Notice. 

Where  a  husband  pays  a  valuable  consideration  for  land,  acquiring 
the  legal  title  without  notice  of  the  rights  of  a  lien  holder,  the  widow 
is  entitled  to  dower. 

lien— Notice. 

Where  real  estate  is  sold  and  a  bond  for  a  deed  is  executed  and 
afterwards  the  bond  is  transferred,  and  the  grantor  sells  and  conveys 
such  real  estate,  the  purchaser  having  notice  that  his  grantor  has  not 
paid  for  the  land  and  of  the  lien  of  the  seller,  such  purchaser  takes 
the  land  subject  to  such  lien,  and  his  widbw*s  right  of  dower  is  sub- 
ject thereto. 

APPEAL  FROM  KNOX  CIRCUIT  COURT. 
January  21,  1875. 

Opinion  by  Judge  Lindsay  : 

Wood  sold  the  tract  of  land  to  Renfro,  and  executed  to  him  a  bond 
for  title.  Renfro  executed  his  note  to  Wood  for  the  purchase  price 
of  the  land. 

Wood  sold  and  transferred  this  note  to  appellant,  Adams.  After- 
wards Renfro  sold  to  Collier.  The  proof  conduces  to  show  that 
Collier  undertook  ,and  agreed  to  pay  off  the  note  held  by  Adams. 
.A.fter  all  this,  and  without  the  consent  or  knowledge  of  Adams, 
Wood,  at  the  request  of  Renfro  and  Collier,  conveyed  the  land  to 
Collier,  retaining  no  lien  to  secure  the  payment  of  the  amount  due 
to  Adams. 


3^4  Kentucky  Opinions. 

Collier  being  dead,  his  widow  claims  that  this  conveyance  invested 
her  husband  with  the  legal  title  to  the  land,  free  from  any  lien,  and 
that  her  right  to  dower  at  once  accrued,  and  is  not  affected  by  the 
subsequent  recognition  by  her  said  husband  of  the  existence  of 
Adams's  lien. 

Her  claim  would  be  valid  if  the  husband  had  paid  a  valuable  con- 
sideration for  the  land,  and  acquired  the  legal  title  without  notice  of 
the  rights  of  Adams.  But  this  is  not  the  case.  Wood  understood 
from  Renfro  and  Collier  that  the  latter  was  to  pay  the  debt  due  to 
Adams. 

The  assignment  to  Adams  of  the  note  to  Renfro,  invested  him  with 
the  lien  then  existing  in  favor  of  Wood  to  secure  its  payment.  Wood 
had  no  right  afterwards  to  surrender  this  lien.  The  party  to  whom 
the  surrender  was  made,  having  notice  of  Adams*  equity,  could  not 
resist  its  enforcement.  Mrs.  Collier  claims  through  her  husband,  and 
her  claim  is  subject  to  all  the  infirmities  of  her  husband's  title.  The 
court  below  erred  in  holding  that  her  right  to  dower  is  superior  to 
Adams's  lien.  Judgment  reversed,  and  cause  remanded  for  a  judg- 
ment conforming  to  this  opinion. 

Green  &  Adams,  M.  C.  Johnson,  for  appellant, 
J,  IV,  Rodman,  for  appellee. 


Owen  &  Mills  v,  E.  P.  Humphrey,  et  al. 

Lease  Contract— Arbitration— Fraud. 

Where  in  a  lease  contract  the  rent  is  to  be  six  per  cent  of  the  valu- 
ation, to  be  made  each  five  years  by  two  arbitrators,  one  to  be  ap- 
pointed by  each  party,  with  a  clause  that  if  they  fail  to  agree  on  a  val- 
uation, that  fixed  by  the  assessor  was  to  be  taken,  a  party  to  such  con- 
tract is  not  entitled  to  have  such  valuation  fixed  by  a  court  where  no 
fraud  is  charged,  and  neither  party  has  failed  to  appoint  an  arbitrator 
in  good  faith. 

Lease  Contract — Arbitration. 

When  the  rent  in  a  lease  depends  upon  the  valuation  of  the  realty, 
to  be  determined  by  arbitrators,  or  in  case  of  their  failure,  the  valua- 
tion fixed  by  the  assessor  is  to  be  taken,  and  the  arbitrators  in  good 
faith  cannot  agree,  the  assessor's  valuation  determines  the  amount  of 
rental  to  be  paid. 


Owen  &  Mills  v.  E.  P.  Humphrey,  et  al.  325 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

r 

January  22,  1875. 
Opinion  by  Judge  Peters  : 

In  order  to  obtain  a  proper  construction  of  the  parts  of  the  lease 
relating  to  this  controversy,  they  should  be  read  together,  as  if  they 
formed  but  one  paragraph  or  sentence.  They  are  as  follows : 

"And  at  the  end  of  the  first  and  second  five  years,  the  lot  is  to  be 
valued  at  a  fair  valuation  by  two  disinterested  persons,  mutually 
chosen,  and  endorsed  or  entitled  to  this  lease,  and  the  party  of  the 
second  part  binds  himself  to  pay  six  per  cent,  per  annum  on  such 
valuation,  as  rent,  during  the  five  years  succeeding  each  valuation. 

"And  it  is  further  agreed  that  if  the  valuations  are  not  made  at  the 
periods  herein  provided  for,  the  valuation  made  by  the  city  assessor 
for  that  year  shall  be  the  same  upon  which  the  six  per  cent,  per 
annum  is  to  be  paid." 

It  must  be  conceded  that  if  either  party  should  persistently  refuse 
to  choose  a  disinterested  and  suitable  person  to  act  with  such  per- 
son chosen  by  the  other  party,  at  the  time  specified  for  making  the 
valuation,  or  should  choose  a  person  that  he  knew  would  not  agree 
to  a  fair  valuation,  and  choose  such  person  with  the  design  to  pre- 
vent a  fair  valuation,  or  otherwise  to  obtain  an  unjust  advantage, 
certainly  a  court  of  equity  might  properly  be  resorted  to  for  the  pur- 
pose of  having  a  fair  and  just  valuation  made  of  the  property. 

Where  parties  have  agreed  upon  a  particular  mode  of  adjusting 
controversies  in  relation  to  property,  determining  disputes  and  ascer- 
taining and  fixing  values,  as  in  this  case,  such  agreements  should  be 
encouraged;  and  courts  should  not  interfere  except  to  enforce  per- 
formance or  to  prevent  one  party  from  obtaining  fraudulent  advan- 
tage of  the  others.  After  stating  in  the  petition  that  on  the  ist  of 
January,  1874,  appellee  called  the  attention  of  appellants  to  the  par- 
ticular clauses  in  the  lease  in  reference  to  the  mode  provided  for  fix- 
ing the  amount  to  be  paid  for  the  rent  of  the  premises  for  the  suc- 
ceeding five  years ;  that  they  then  made  an  effort  to  agree  upon  the 
rent,  appellees  allege  that  they  then  chose  W.  R.  Thompson,  and  ap- 
pellants chose  John  L.  Henning  to  fix  the  valuation  on  the  property ; 
that  these  gentlemen  met  several  times,  but  were  unable  to  come  to 
an  agreement;  that  Mr.  Thompson  then  proposed  that  they  should 
leave  the  matter  to  some  third  person,  and  abide  by  his  decision; 
that  Mr.  Henning  declined  that  proposition,  and  that  Mr.  Thomp- 


326  Kentucky  Opinions. 

son  proposed  to  split  the  difference  between  them  and  fix  the  valua- 
tion of  the  lot  at  $375,  which  was  also  refused. 

They  further  allege  that  said  covenants  in  said  lease  are  of  great 
value  and  importance  to  them ;  that  in  no  other  way  can  it  be  ascer- 
tained what  rent  they  are  to  receive ;  and  that  they  have  done  every- 
thing in  their  power  to  obtain  a  fair  valuation  of  the  premises. 
Every  offer  of  compromise  has  been  rejected,  and  the  gentleman  ap- 
pointed by  appellants  to  act  for  them  refused  to  accede  to  each  and 
every  offer  made  by  Mr.  Thompson,  looking  towards  a  settlement 
between  them.  They  say  they  are  and  have  ever  been  willing  to 
carry  out  the  same,  and  have  shown  their  efforts  to  do  so ;  that  de- 
fendants neglected  for  a  long  time  to  appoint  some  one  to  act  for 
them,  and  only  did  so  upon  repeated  solicitations  by  plaintiffs,  and 
further  that  Mr.  Henning  made  no  proposition  towards  a  settlement 
of  the  wide  difference  of  opinion  between  himself  and  Mr.  Thcrnip- 
son,  but  refused  to  accede  to  each  and  every  offer  made  by  him ;  that 
there  is  a  controversy  between  them  and  the  defendant,  concerning 
the  proper  construction  of  the  following  clause  in  said  lease,  as  well 
as  the  clauses  hereinbefore  set  out ;  and  then  follows  the  last  claim 
already  copied  herein. 

They  then  pray  for  a  specific  performance  of  said  covenants  and 
agreements  for  a  valuation  of  the  premises,  for  a  construction  of  the 
terms  of  said  lease ;  that  the  value  of  said  premises  be  fixed ;  that  de- 
fendant be  decreed  to  pay  plaintiffs  six  per  cent,  per  annum  on  said 
valuation  during  five  years,  commencing  the  ist  of  January,  1874, 
and  for  their  costs  and  for  all  proper  relief. 

This  extended  extract  is  made  from  the  petition,  that  the  facts 
may  distinctly  appear  upon  which  the  aid  of  the  chancellor  is  in- 
voked. There  is  no  charge  of  fraud  on  the  part  of  appellants ;  it  is 
not  alleged  that  the  gentleman  selected  by  them  was  incompetent  to 
make  the  valuation  for  the  want  of  judgment  or  knowledge  of  the 
value  of  property  in  the  city,  or  that  he  was  from  any  other  cause  an 
improper  person  to  refer  the  matter  to.  No  misconduct  is  alleged 
against  him,  and  the  only  complaint  of  him  is  that  he  had  fixed  a  low 
valuation  on  the  property,  and  declined  to  accede  to  any  proposition 
made  by  Mr.  Thompson.  That  he  certainly  could  have  been  con- 
sistent with  the  utmost  good  faith,  for  having  valued  the  property  at 
what  he  conscientiously  believed  a  fair  price,  it  was  quite  natural  that 
he  should  adhere  to  it ;  and  his  refusal  to  change  his  opinion  cannot 
be  construed  into  disqualifying  persistency  or  want  of  integ^ty.  Nor 
is  any  misconduct  charged  against  appellants.    It  appears  from  the 


City  of  Louisville  v,  Joseph  Hall,  et  al.  327 

averments  in  the  petition  that  they  were  somewhat  tardy  in  selecting 
a  man  to  make  the  valuation;  but  no  rent  was  due  till  the  ist  of 
April,  1874,  and  they  may  have  supposed  that  a  valuation  made  by 
the  time  the  rent  was  due  would  be  sufficient. 

The  concluding  clause  of  the  lease  herein  quoted  appears  to  have 
been  inserted  to  meet  the  very  contingency  which  has  happened.  It 
expressly  provides  that  if  the  valuations  are  not  made  at  the  periods 
herein  provided  for,  viz.:  at  the  end  of  the  first  and  second  five 
years,  the  valuation  made  by  the  city  assessor  for  that  year  shall  be 
the  same  on  which  the  six  per  cent,  per  annum  is  to  be  paid.  This 
agreement  contains  no  exceptions.  In  the  contingency  provided  for 
the  parties  themselves  have  selected  the  final  arbiter,  and  to  him 
must  they  go,  unless  sufficient  reasons  are  shown  for  resorting  to 
another  tribunal.  It  is  not  alleged  even  that  the  "city  assessment''  is 
not  a  fair  appraisement,  and  how  "such  appraisements  are  generally 
regarded,"  we  have  not  the  means  of  knowing,  as  the  record  con- 
tains no  evidence  on  that  question.  But  parties  have  made  that  valu- 
ation the  criterion  by  which  the  rent  is  to  be  fixed,  and  no  sufficient 
reason  has  been  presented  for  changing  it. 

Wherefore  the  judgment  must  be  reversed  and  the  cause  re- 
manded with  directions  to  dismiss  the  petition. 

Clemmons  &  Willis,  for  appellants. 
E,  W.  C.  Humphrey,  for  appellees. 


City  of  Louisville  v.  Joseph  Hall,  et  al. 

Dedication  of  Highway — Streets. 

When  grantors  own  land  not  platted,  and  convey  the  same  as  a  tract, 
referring  in  the  deed  to  a  named  street  and  to  the  location  of  portions 
of  the  land  on  either  side  of  such  street,  but  not  making  the  street  a 
boundary,  they  do  not  thereby  dedicate  the  street  to  the  public.  The 
reference  to  the  street  in  the  deed  was  a  mere  matter  of  description. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

January  22,  1875. 

Opinion  by  Judge  Lindsay  : 

It  does  not  appear  from  the  record  that  Elm  street  had  been  laid 
out  by  the  heirs  at  law  of  Ferguson,  nor  that  it  had  been  located 
across  their  lands,  with  their  consent,  by  the  city  or  by  any  adjoin- 
ing land  holder. 


328  Kentucky  Opinions. 

They  sold  to  the  Halls  an  entire  tract  of  land,  describing  it  as  the 
land  conveyed  to  their  ancestor  by  the  Bank  of  the  United  States. 
The  reference  to  Elm  street,  and  to  the  location  of  portions  of  the 
land  conveyed  on  either  side  of  said  street,  was  mere  matter  of  de- 
scription. In  selling  to  the  Halls,  the  vendees  had  no  interest  in  dedi- 
cating a  street  to  the  public,  and  the  purchasers  had  no  interest  in 
requiring  any  such  dedication. 

If  they  had  conveyed  the  land  lying  north  of  the  supposed  loca- 
tion of  Elm  street  to  one  party,  and  that  lying  south  to  another, 
calling  in  the  deeds  for  the  street  as  a  boundary  to  each  tract,  then 
the  title  to  the  street  could  not  have  been  passed,  and  the  law,  for 
the  benefit  of  the  purchaser,  would  have  implied  a  dedication  of  the 
street  to  the  public. 

In  this  case  the  title  to  all  the  tract  of  land,  including  the  proposed 
site  of  Elm  street,  passed  to  the  Halls,  and  their  right  to  the  street 
is  as  free  from  the  supposed  divestiture  by  dedication,  as  was  that 
of  the  vendors. 

Judgment  afHrmed, 

T.  L.  Burnett,  for  appellant. 
Russell  &  Helm,  for  appellees. 


Wesley  Hoggins  v,  Elizabeth  Elliston. 

Pinal  Judgment— Appeal— Administrator  Purchasing  Trust  Property. 

An  appeal  can  only  be  taken  from  a  final  Judgment,  and  where  two 
days  after  rendition  a  motion  is  filed  to  set  it  aside,  the  court,  so  long 
as  the  motion  was  pending,  had  full  power  over  the  judgment;  and 
not  being  disposed  of,  the  judgment  was  not  final. 

Administrator  Purchasing  Trust  Property. 

An  administrator,  who  is  a  creditor  of  an  estate  and  entrusted  with 
the  sale  of  property  to  pay  debts,  cannot  legally  become  the  purchaser 
of  such  property  unless  the  entire  transaction  is  characterized  by  the 
utmost  good  faith. 

APPEAL  FROM  KENTON  COUNTY  COURT. 

January  25,  1875. 

Opinion  by  Judge  Lindsay  : 

It  seems  that  Hoggins  did  not,  of  his  own  accord,  pay  usurious 
interest  on  the  notes  due  and  owing  by  Elliston  at  the  time  of  his 


Wesley  Hoggins  v.  Elizabeth  Eluston.  329 

death.  Mrs.  Elliston,  the  sole  devisee  of  her  husband,  on  all  occa- 
sions manifested  the  desire  that  the  contracts  of  her  deceased  hus- 
band for  the  payment  of  interest  should  be  carried  out  to  the  letter, 
and  it  may  be  safely  assumed  that  all  the  usury  paid  by  Hoggins 
was  paid  at  her  instance. 

It  is  by  no  means  clear,  however,  that  he  paid  on  the  debts  due 
to  Worthington  &  Adams,  the  full  amount  of  the  principal  and  legal 
interest.  A  comparison  of  his  bank  account,  with  the  hotel  boc^ 
kept  by  Arlien,  rather  tends  to  show  that  he  did  not ;  and  we  cannot, 
from  the  record  before  us,  determine  that  the  court  below  erred  in 
refusing  to  allow  him  credits  for  the  $275  and  $50  items,  claimed 
to  be  interest  paid  on  these  debts.  It  seems  that  the  $45.76  claimed 
to  be  usurious  interest  paid  on  the  debt  to  Howe  ought  to  have  been 
allowed,  as  also  the  $45  interest  paid  to  the  bank.  The  error  of  $90 
on  the  stable  account  should  have  been  corrected.  Mrs.  Elliston  in 
her  deed  admits  the  judgment  in  full  of  $13,000  and  without  an 
averment  of  mistake  or  fraud  this  admission  should  be  accepted  as 
conclusive.  Hoggins  should  have  been  credited  by  $585.45,  the 
amount  of  the  note  satisfied  out  of  the  moneys  receive  on  the  lot  sold 
to  Hardebecke.     . 

The  allowance  to  Hoggins  as  administrator  is  deemed  reasonable ; 
the  exceptions  thereto  of  both  parties  were  properly  overruled.  As 
Mrs.  Elliston  was  compelled  to  have  the  county  court  settlement  cor- 
rected by  a  suit  in  equity,  the  fees  paid  therefor  should  not  have 
been  allowed  the  administrator.  Hamilton  is  not  a  party  of  this 
appeal ;  we  cannot,  therefore,  pass  upon  the  allowance  made  to  him. 

While  Mrs.  Elliston  may  not,  by  reason  of  the  lapse  of  time;  be 
allowed  to  prosecute  her  own  appeal,  a  question  we  do  not  decide, 
still  she  can  have  her  exceptions  to  the  master's  report  inquired  into 
for  the  purpose  of  setting  off,  against  errors  in  her  favor,  those 
committed  to  her  prejudice,  and  thereby,  if  possible,  preserve  her 
judgment. 

The  court  erred  in  refusing  to  charge  Hoggins  with  the  sum  of 
$810.50,  made  up  of  the  items  of  "One  mule,  $135,  one  gray  horse, 
$75,  pony,  $100,  two  ponies  and  buggy,  $292.50,  and  a  lot  of  brandy, 
$208."  It  is  not  disputed  that  all  this  property  came  to  the  hands  of 
Hoggins,  nor  that  he  sold  it  for  the  sums  charged.  He  insists  that 
the  sales  were  made  at  different  times,  and  that  the  money  went 
into  the  hotel  fund,  and  was  from  that  fund  transferred  to  his  bank 
account,  and  there  charged  against  him.  There  is  nothing  in  the 
record  showing  that  such  was  the  case.   The  onus  is  upon  him  to 


330  Kentucky  Opinions. 

show  that  he  was  so  charged  with  these  sums,  yet  he  utterly  fails 
to  do  so. 

The  error  in  failing  to  charge  him  with  said  $810.50,  more  than 
balances  errors  committed  to  his  prejudice;  and  hence  the  judgment 
of  the  5th  of  January,  1871,  cannot  be  disturbed. 

Before  proceeding  to  investigate  the  controversy  arising  out  of 
the  sale  of  the  stable  property,  it  is  necessary  to  determine  whether 
or  not  this  judgment  was  final,  and  whether  it  disposed  of  all  the 
matters  in  controversy.  The  order  fails  to  show  that  the  cause  was 
then  submitted  for  judgpnent.  The  court  merely  disposes  of  the 
exceptions  to  the  commissioner's  report.  This  report  makes  no  refer- 
ence to  the  stable  transaction,  except  that  Hoggins  was  charged  with 
the  agreed  purchase  price  $13,000.  The  claim  of  Mrs.  EUiston  to 
one-half  the  profit  realized  on  the  resale,  is  not  mentioned  either  in 
the  commissioner's  report  or  the  judgment. 

Besides  this,  if  the  judgment  would  otherwise  have  been  regarded 
as  final,  it  cannot  be  so  treated  under  the  circumstances  of  this  case, 
for  the  reason  that  two  days  after  it  was  entered  Mrs.  EUiston 
moved  to  set  it  aside.  So  long  as  this  motion  was  pending,  the  court 
had  full  powier  over  the  judgment,  and  we  find  it  had  not  been  dis- 
posed of. 

When  the  cause  was  submitted  for  final  judgment  on  the  8th  of 
December,  1871,  the  court  and  the  parties  seem  to  have  regarded  the 
order  of  judgment  of  January,  1871,  as  interlocutory,  or  at  least  as 
not  a  complete  disposition  of  the  matters  in  controversy;  and  this 
fact  is  evidence'd  by  the  failure  of  appellant  to  object  to  the  last  or- 
der of  submission.  He  was  certainly  in  court  at  that  time.  We  find 
him  excepting  to  the  judgment  rendered  six  months  thereafter  on 
the  13th  day  of  June,  1872.  \ 

Considering  the  relations  existing  between  Hoggins  and  Mrs. 
EUiston,  it  is  doubtful  whether  any  sale  by  the  latter  to  the  former 
should  be  upheld,  if  profit  to  any  considerable  amount  should  be 
realized  thereon.  Hoggins  was  the  administrator  of  an  estate,  all 
of  which  had  been  devised  to  Mrs.  EUiston.  He  exercised  complete 
control  over  all  her  property,  real  and  personal.  Every  cent  of 
money  realized  from  the  business  carried  on  by  her,  was  paid  into 
bank  to  his  credit,  and  he  allowed  to  use  it  at  his  discretion.  In  the 
judgment  of  debts  owing  by  the  estate,  wihen  Mrs.  EUiston  sold  real 
property,  the  proceeds  were  at  once  placed  at  the  disposal  of  Hog- 
gins, and  in  all  matters  of  business  she  seems  to  have  subordinated 
her  opinions  to  his  judgment. 


Wesley  Hogcjins  z\  Elizabeth  Elliston.  331 

He  held  a  mortgage  upon  the  hotel  property  for  an  amount  she 
could  not  pay  without  selling  real  estate ;  and  accordingly  the  stable 
property  was  put  upon  the  market,  and  Hoggins  entrusted  with  the 
negotiations  necessary  to  accomplish  a  sale.  He  held  this  property 
for  a  time  at  from  $1,600  to  $1,800.  He  failed  in  an  attempt  to  sell 
it  at  a  public  auction ;  and  finally  he  changed  his  attitude  as  friend 
agent  and  confidential  adviser  of  Mrs.  Elliston,  and  purchased  the 
property  for  himself. 

Two  years  afterward  he  sold  one-half  of  it  for  within  a  small 
amount  of  what  he  paid  for  the  whole  property.  The  mere  state- 
ment of  these  facts  presents  to  the  mind  the  conviction  that  such  a 
transaction  should  not  be  upheld,  unless  it  was  characterized  by  tlie 
utmost  good  faith;  and  it  clearly  appears  that  the  sale  was  uncon- 
ditional, the  vendor  retaining  no  interest  inconsistent  with  the  con- 
ditions of  the  deed.  Here  it  appears  that  Mrs.  Elliston  did  retain 
an  interest  in  the  property.  Hamilton  swears  that  she  stated  in  the 
presence  of  Hoggins  that  she  was  to  have  one-half  of  the  profit 
realized  when  the  property  should  be  resold,  and  that  she  desired 
that  this  agreement  should  be  incorporated  in  her  conveyance,  but 
that  he  advises  her  to  take  a  separate  writing  evidencing  this  con- 
tract. Mervin  swears  that  Hoggins  told  him  that  this  was  his  con- 
tract, and  that  he  had  given  Mrs.  Elliston  a  writing  to  that  effect. 
The  loss  of  the  writing  is  sufficiently  accounted  for.  Hoggins  insists 
that  his  agreement  was  oral,  and  that  he  was  not  to  divide  the  profit 
unless  he  sold  the  property  before  obtaining  possession.  He  fails  to 
prove  any  such  limitation,  and  the  proof  conduces  to  show  that  the 
agreement  was  reduced  to  writing.  In  such  a  case  as  this,  nothing 
should  be  presumed  in  favor  of  the  trustee  who  has  realized  such  a 
profit  out  of  a  purchase  made  from  the  party  having  confidence  in 
him.  It  may  be  unreasonable  to  suppose  that  Hoggins  agreed  to 
divide  the  profit  at  any  time  he  might  sell ;  but  it  is  equally  so  to 
suppose  that  Mrs.  Elliston  contracted  for  one-half  the  profits  with- 
out stipulating  that  he  should  sell  at  some  time.  It  is  sufficient  that 
there  was  an  agreement  to  divide  the  profits  realized  by  a  sale  of 
the  property,  that  a  sale  of  the  portion  of  it  was  made,  within  a  rea- 
sonable time,  and  that  great  profit  was  realized.  These  facts  make 
out  appellee's  right  to  relief. 

Appellant  was  credited  by  the  amount  paid  Mrs.  Elliston,  also 
by  the  amounts  paid  for  the  additional  grounds  purchased,  also  by 
the  amount  paid  to  look  up  the  title,  and  by  the  amount  expended  in 
making  improvements ;  to  this  extent  the  basis  of  settlement  is  cor- 


33^  Kentucky  Opinions. 

rect.  But  the  court  erred  in  assuming  that  the  unsold  portion  of  the 
property  is  worth  as  much  as  was  realized  by  the  sale  of  the  one- 
half  that  has  been  disposed  of,  and  it  erred  further  in  compelling 
Hoggins  to  purchase  Mrs.  EUiston's  interest  in  the  one-half  not  sold. 
After  the  sale  of  the  first  half  Mrs.  Elliston  is  entitled  to  one-half 
the  rents  accruing  on  the  one-half  not  sold.  This  claim  for  rents 
should  be  set  off  against  Hoggins'  claim  made  up  as  before  indicated. 
For  any  balance  that  may  remain  on  the  rents  Hoggins  should  be 
required  to  account.  When  this  is  done,  the  unsold  half  will  be  re- 
garded and  treated  as  profit,  in  which  the  parties  own  equal  undi- 
vided interests. 

If  the  parties  or  either  of  them  so  desire,  the  court  may  adjudge 
it  to  be  sold  and  the  proceeds  to  be  divided  equally  between  them. 
If  neither  of  the  parties  desire  a  sale,  then  Hoggins  will  be  treated 
as  holding  the  title  to  the  unsold  half  of  the  property  for  the  benefit 
of  himself  and  Mrs.  Elliston. 

The  judgment  of  the  5th  of  Januar}"-,  187 1,  is  affirmed,  but  the 
judgment  of  June  the  13th,  1872,  is  reversed  and  the  cause  remanded 
for  further  proceedings  consistent  with  this  opinion. 

Carlisle  &  O'Hara,  for  appellant. 
/.  IV.  Stevenson,  for  appellee. 


Lewis  Lentz,  et  al.,  v.  Louisville  &  Jefferson  County 

Association. 

Mortgage  Foreclosure — Exhibits — Parties  to  Action — ^Ratification. 

Only  the  mortgage  and  obligation  it  secures,  or  copies  thereof,  need 
be  filed  in  a  suit  to  foreclose.  No  evidences  of  the  mortgagor's  title 
need  be  filed. 

Parties  to  Action — Ratification. 

Where  a  trustee  holds  a  mortgage  for  bondholders,  a  majority  of 
such  holders  may  require  him  to  enter  suit;  and  whether  such  a  suit 
was  properly  brought  In  the  name  of  the  trustee  alone  or  not,  the 
ratification  of  the  foreclosure  sale  by  a  majority  of  the  bondholders 
removes  any  doubt  of  the  validity  of  the  title  of  the  purchaser. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

January  25,  1875. 

Opinion  by  Judge  Cofer  : 

We  know  of  no  rule  of  law  or  of  practice  which  requires  a  mort- 


Lewis  Lentz,  et  al.,  v,  Louisvuxe  &c.  Ass'n.  333 

gagee  suing  to  foreclose  a  mortgage,  to  file  with  his  petition  the 
muniments  of  the  mortgagor's  title.  The  mortgage  sought  to  be 
foreclosed  was  filed,  and  certainly  the  validity  of  the  judgment  is 
not  affected  by  a  failure  to  file  other  evidence  of  title. 

The  holders  of  a  majority  of  the  bonds  have  compelled  the  trustee 
to  sue,  or,  upon  his  refusal,  they  themselves  could  have  sued ;  and  as 
such  majority  has  ratified  the  sale,  we  are  unable  to  perceive  any 
reason  why  the  sale  is  not  as  valid  as  if  procured  at  their  request. 

Without  deciding  whether  the  suit  was  properly  brought  in  the 
name  of  the  trustee  alone,  we  are  satisfied  that  the  ratification  of 
the  sale  by  the  holders  of  a  majority  of  the  bonds  has  removed  any 
doubt  that  might  otherwise  have  existed  as  to  whether  appellants 
have  acquired  a  title  free  from  any  claim  by  those  bondholders  who 
have  not  assented  to  the  sale.  But  if  it  was  conceded  that  these 
bondholders  are  not  bound,  and  that  they  might  hereafter  assert 
their  lien  unless  they  are  paid,  it  would  furnish  no  ground  for  va- 
cating the  sale.  The  majority  have  elected  to  affirm  the  sale,  and 
have  thus  placed  themselves  and  the  other  holders  in  the  same  po- 
sition they  would  have  been  in  if  those  now  ratifying  had  originally 
required  the  sale  to  be  made. 

This  places  the  holders  of  the  minority  of  the  bonds  in  a  position 
in  which  they  are  bound  to  accept  payment  of  their  bonds  when  ten- 
dered. If,  then,  the  appellants  doubt  whether  they  may  not  still  as- 
sert their  lien,  if  they  are  not  paid  by  the  trustee,  they  may  take 
steps  to  protect  themselves  from  loss  by  suggesting  their  apprehen- 
sions, and  asking  the  court  to  either  allow  them  to  retain  enough 
money  to  pay  the  bonds  held  by  those  not  assenting  to  the  sale,  or 
to  compel  the  trustee  to  bring  them  into  court  to  receive  payment. 

The  common  creditors  of  the  corporation  had  no  lien  upon  the 
land  and  were  neither  necessary  or  proper  parties  to  the  suit. 

There  is  no  evidence  in  the  record  to  sustain  the  fifth  exception, 
and  if  there  was,  the  subsequent  ratification  by  the  corporation  and 
the  holders  of  three-fourths  of  the  bonds,  and  the  fact  that  the 
property  sold  for  more  than  enough  to  pay  in  full  all  the  bondholders, 
would  cure  any  objection  that  might  otherwise  have  existed  because 
of  a  failure  to  sell  at  the  hour  designated  in  the  judgment  and  ad- 
vertisement. 

Judgment  aMrtned. 

/.  B.  Cochran,  for  appellants. 

Rosell,  Weissenger,  Pinkney  &  Green,  for  appellee. 


334  Kentucky  Opinion's. 

C.  \'axdergrifft  z\  Aris  Cox,  et  al. 

Win — Limitations. 

Where  a  testator  bequeaths  a  life  estate  to  his  widow,  bat  does  not 
dispose  of  the  fee  of  his  real  estate,  hot  places  the  property  in  the 
hands  of  an  executor  to  mana^  and  sell  at  the  death  of  his  widow 
and  divide  .the  money  among  his  children,  such  fee  descends  at  his 
death  to  his  heirs. 

Limitationa. 

When  a  testator  disposes  of  his  personal  property,  making  no  dispo- 
sition of  his  realty,  but  does  provide  that  liis  executor  shall  sell  the 
same  at  the  death  of  his  widow  and  distribute  the  proceeds  among  his 
children,  and  his  children  of  full  age  convey  the  real  estate,  for  a  fair 
consideration,  to  a  purchaser  who  takes  possession  and  holds  it  ad- 
versely to  all  the  world  for  more  than  thirty  years,  his  title  is  good. 
The  statute  of  limitations  also  is  a  bar  to  an  action  to  recover  the  land 
from  him. 

APPEAL  FTIOM  HENRY  CIRCUIT  COURT. 

January  26,  1875. 

Opixion  iiv  Ji:dge  Lindsay: 

By  the  will  of  Samuel  Thorn,  his  widow,  Xelly  Thorn,  took  a 
life  estate  in  one-third  of  his  landed  estate,  or  in  the  rents  and 
profits  arising  therefrom. 

The  fee  simple  estate  in  his  land  was  not  disposed  of  at  all.  He 
provided  that  the  rents  and  profits  of  the  land  not  embraced  by  the 
life  estate,  to  be  taken  by  his  widow,  should  be  equally  divided  be- 
tween his  two  daughters,  Peggy  Cox  and  Nancy  IJrown,  and  in  case 
of  their  death,  among  their  children,  in  such  manner  as  his  execu- 
tors might  deem  most  conducive  to  their  Ix^nefits.  The  power  of 
managing  the  landed  estate  was  given  to  the  executors,  and  at  the 
death  of  the  testator's  wife,  they  were  directed  to  sell  it  and  such 
j)ersonal  property  as  might  remain  in  their  hands,  and  divide  the 
proceeds  among  his  two  daughters  and  their  children  in  such  way 
as  might  appear  to  them  the  most  likely  "to  do  them  good." 

The  land  itself  is  not  devised  at  all.  Neither  the  daughters  nor 
their  children  take  any  estate  in  it  under  the  will.  The  executors 
were  merely  invested  with  the  power  to  manage,  and  finally  to  sell. 
It  therefore  necessarilv  results  that  the  title  descended  to  the  heirs 
at  law  of  the  testator. 

Under  the  deeds  from  Mrs.  Cox  and  Mrs.  Brown,  VandergrifFt 
entered,  taking  possession  of  the  entire  tract  of  land.   He  has  been 


S.  B.  Redd  &  Bro.  v.  Mary  E.  Walker,  et  al.  335 

in  possession  for  over  thirty  years.  He  did  not  enter  as  a  tenant  in 
common  with  these  appellees  or  any  of  them.  Whether  the  convey- 
ance from  their  mother  be  -valid  or  invalid,  is  immaterial.  The  fact 
that  he  claimed  under  it  shows  that  he  was  holding  adversely  to  her, 
and  conduces  to  show  that  he  held  adversely  to  her  children. 

She  became  discovert  more  than  thirty  years  before  her  death, 
and  the  youngest  of  the  appellees  become  an  adult  nineteen  years 
before  the  institution  of  this  action.  The  fifteen  year  statute  of 
limitation  eflfectually  bars  this  action,  even  if  it  were  conceded  that 
the  legal  title  to  the  land,  or  any  part  of  it,  passed  to  these  appellees 
under  their  grandfather's  will.  But  as  we  have  already  seen,  such 
was  not  the  case. 

The  judgment  of  the  court  below  is  erroneous.  For  the  reasons 
given,  it  is  reversed  and  the  cause  remanded  with  instructions  to 
dismiss  appellees'  petition. 

Webb,  Montfort,  J.  &  J.  W,  Rodman,  for  appellant, 
DeHaven  &  Carroll,  George  C.  Drane,  for  appellees. 


S.  B.  Redd  &  Bro.  v.  Mary  E.  Walker,  et  al. 

Street  Improvement»— Ordinance  and  Contract. 

Where  a  city  ordinance  and  the  improvement  contract  under  it  pro- 
vide for  the  improvement  of  a  carriage  way  twenty-six  feet  wide,  and 
the  contractor  constructs  such  improvement  thirty-four  feet  wide,  the 
city  cannot  compel  the  abutting  property  owners  to  pay  for  such  im- 
provement. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

January  28»  1875. 

Opinion  by  Judge  Lindsay  : 

The  ordinance  and  the  contract  restricted  the  \vidth  of  the  car- 
riage way  of  Maple  street,  between  17th  and  i8th  streets,  to  twenty- 
six  feet,  and  provided  that  room  for  sidewalks  twelve  feet  in  width 
should  be  left  on  either  side.  Notwithstanding  all  this,  the  contrac- 
tors constructed  the  carriage  way  about  thirty-four  feet  in  width, 
and  left  only  seven  or  eight  feet  on  either  side  for  sidewalks.  This 
was  an  open,  palpable,  unmistakable  departure  from  the  provisions 
of  the  ordinance  and  contract. 

The  departure  was  such  as  to  deprive  the  city  of  the  power  to 


336  Kentucky  Opinions. 

compel  the  property  owners  to  pay  the  cost  of  the  improvements. 
The  city  charter,  Sec.  12,  provides  that  in  no  event  shall  the  city 
be  liable  to  pay  for  such  work,  unless  it  has  the  right  to  enforce  the 
cost  against  the  property  receiving  the  benefit. 

The  contractor,  by  his  violation  of  his  contract,  deprived  the  city 
of  the  power  to  enforce  the  payment  of  the  cost  of  improving 
Maple  street  against  Mrs.  Walker's  property.  He  cannot;  therefore, 
complain  that  relief  against  the  city  is  denied  him. 

Judgment  affirmed. 

R.  C.  Davis,  for  appellants, 
G,  P.  Arbegast,  for  appellees. 
T.  L.  Bennett,  for  Louisville. 


William  Tilman  v.  Abner  Carey. 

Foreign  Judgments — Defense. 

Where  a  Judgment  ia  rendered  in  Ohio,  the  court  having  jurisdic- 
tion over  the  subject-matter  and  parties,  no  defense  can  be  interposed 
to  a  suit  brought  upon  it  in  Kentucky  which  would  have  constituted 
a  defense  in  the  original  action  in  Ohio. 

APPEAL  FROM  CAMPBELL  CIRCUIT  COURT. 

January  28,  1875. 

Opinion  by  Judge  Peters: 

After  a  careful  examination  of  the  record  in  this  case,  we  are 
unable  to  perceive  any  error  in  the  proceedings  in  the  court  below 
that  will  authorize  a  reversal  of  the  judgment. 

It  appears  in  the  record  that  appellant  was  actually  served  with 
summons  in  the  proceedings  in  Ohio,  and  that  the  court  that  ren- 
dered the  judgment  had  jurisdiction  of  the  subject-matter  of  the 
action.  The  judgment  must,  therefore,  be  regarded  here  as  conclu- 
sive of  the  rights  of  the  parties.  Appellant  cannot  go  behind  that 
judgment,  and  now  plead  matters  in  defense  which  would  have  con- 
stituted a  defense  to  the  original  action  in  Ohio.  We  do  not  construe 
the  judgment  of  the  justice  of  the  peace  of  Ohio  as  exceeding  his 
jurisdiction.  It  is  only  for  $300  and  costs,  which  costs  are  the  mere 
incident  to  the  judgment;  besides,  if  the  judgment  had  exceeded 


Walter  &  Struck  v.  R.  W.  Wooley,  et  al.  337 

said  sum,  the  plaintiff  could  remit  the  excess.   And  it  is  not  a  re- 
versible error,   i  Swan  &  Critchf .  R.  S.  Ohio  788. 
The  judgment  must  be  afHrmed, 

Hawkins,  for  appellant. 
Pearsons,  for  appellee. 


Walter  &  Struck  v.  R.  W.  Wooley,  et  al. 

Landlord  and  Tenant — Mechanic's  Lien — ^Pardea — Limitations. 

The  landlord  must  be  made  a  defendant  in  an  action  to  foreclose  a 
mechanic's  lien  against  real  estate  for  improvements  which  have  been 
made  thereon  by  the  tenant 

Limitations. 

Where  the  landlord  was  not  made  a  defendant  in  foreclosing  a  me- 
chanic's lien  against  his  property  for  improvements  erected  by  the 
tenant,  until  more  than  one  year  after  such  work  was  dcme  and  until 
after  the  tenant  was  dispossessed,  no  recovery  can  be  had  against  the 
landlord's  real  estate. 

Limitations. 

No  action  can  be  maintained  to  foreclose  a  mechanic's  lien  after 
twelve  months  have  elapsed  from  the  date  of  the  completion  of  the 
work  or  furnishing  the  materiala 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

January  28,  1875. 

Opinion  by  Judge  Pryor  : 

If,  as  maintained  by  the  appellants,  the  mechanic's  lien,  by  reason 
of  the  law  applicable  to  the  city  of  Louisville,  is  superior  to  the  lien 
of  the  landlord  for  his  rents  (a  question  not  necessary  to  be  decided 
in  this  case),  it  must  be  conceded  that  the  provisions  of  the  enact- 
ment creating  this  lien  must  be  complied  with  in  order  to  give  this 
preference.  The  building,  as  erected  by  the  appellant,  became  a  part 
of  the  realty,  or  such  a  fixture  as  could  not  be  removed  by  the  ten- 
ants under  the  contract,  as  shown,  without  the  consent  of  the  own- 
ers of  the  soil ;  and  if  placed  upon  the  premises  with  or  without  the 
implied  or  express  consent  of  the  landlord,  the  lien  must  be  enforced 
against  him  as  well  as  the  tenant.  The  tenant  may  be  and  is  a  neces- 
sary party,  in  order  that  he  may  admit  or  contest  the  validity  of  the 
claim,  and  assert  his  right  to  the  use ;  but  the  landlord  is  the  party 

22 


338  Kentucky  Opinions. 

against  whom,  or  upon  whose  property  the  lien  attaches ;  and  he  is, 
therefore,  for  the  purposes  of  enforcing  the  lien  the  real  party  in 
interest. 

The  lease  in  this  case  was  a  matter  of  record ;  and  the  property 
upon  the  premises  gave  to  the  landlord  an  indemnity  to  that  extent 
upon  the  failure  of  the  tenant  to  pay  his  rent.  He  feels  secure  in 
this  rent  by  reason  of  these  improvements,  and  may  not  desire  on 
this  account  to  exact  a  prompt  compliance  with  the  payment  of  the 
monthly  instalments  owing  by  the  tenant.  In  this  case,  the  landlord 
whose  realty  is  about  to  be  subjected  to  the  payment  of  the  me- 
chanic's lien,  is  not  made  a  party  to  the  action  until  the  7th  of 
March,  1873.  Th^  nature  and  extent  of  appellants'  lien  was  filed 
in  August,  1872,  for  lumber  and  carpenter's  work,  furnished  and 
performed  up  to  the  8th  day  of  March,  1872.  The  evidence  of 
Exkstenkemper  shows  that  this  work  was  done  three  years  prior  to 
February,  1874,  and  one  of  the  appellants  states  that  it  was  finished 
the  1st  or  2d  of  March,  1872.  More  than  one  year  had  elapsed  after 
the  completion  of  the  work  before  the  appellees  were  made  parties 
to  the  cross-petition  of  appellants.  The  lien  may  be  asserted  provided 
such  petition  be  filed  within  one  year  from  the  completion  of  the 
work  or  the  furnishing  the  materials.  "No  lien  shall  exist  in  favor 
of  any  person  or  persons  by  virtue  of  this  act,  who  shall  not  have 
proceeded  within  the  time  aforesaid  to  enforce  the  same."  Acts  of 
City  of  Louisville,  page  925. 

The  lease  of  the  tenant  had  been  forfeited  prior  to  the  time  at 
which  the  appellees  were  summoned  or  made  parties  to  the  cross- 
petition  ;  and  when  they  come  to  take  possession,  or  have  the  right 
to  the  possession,  it  is  insisted  for  the  first  time,  that  a  part  of  th6 
realty  is  liable  for  the  appellant's  claim ;  and  whether  so  or  not,  the 
appellees  who  owned  the  soil  and  the  buildings  upon  it  had  no  no- 
tice of  this  lien  by  reason  of  any  summons  in  an  action  to  enforce 
it,  until  more  than  one  year  after  the  work  had  been  done,  and  not 
until  they  had  obtained  a  judgment  for  restitution.  It  is  true  tlie 
tenant  owed  the  debt,  but  it  was  the  landlord's  property  that  was 
attempted  to  be  sold  by  reason  of  the  act  in  question  in  order  to  dis- 
charge it ;  and  the  failure  to  attempt  to  enforce  the  lien  within  a  year 
as  against  him,  released  the  property,  if  liable  for  its  payment. 
From  the  evidence  in  the  case  the  tenant  had  no  right  to  remove 
this  building,  and  as  it  was  attached  to  the  dwelling  house,  although 
used  as  a  bar  room,  we  are  not  disposed  to  adjudge  that  it  was  such 
a  fixture  as  the  tenant  could  remove.   Besides,  it  is  shown  that  the 


Walter  &  Struck  v.  R.  W.  Wooley,  et  al.  339 

erection  of  these  improvements  constituted,  to  some  extent,  the  con- 
sideration moving  the  appellees  to  execute  the  lease,  and  that  they 
were  looking  to  the  value  of  such  improvements  as  a  partial  com- 
pensation for  the  use  of  the  property.  There  is  no  reason  assigned 
for  the  failure  to  make  the  appellees  parties  to  the  proceeding  within 
the  time  provided  by  the  statute. 

The  lease  was  a  matter  of  record,  and  by  its  terms  was  liable  to 
be  forfeited  at  any  time,  upon  the  failure  of  the  tenant  to  comply 
with  the  conditions  annexed.  The  interest  of  the  tenant  terminated 
when  the  lease  was  forfeited,  and  the  appellants  were  then  enforc- 
ing their  Hen  against  the  property  of  the  appellees,  who  were  not 
before  the  court.  The  latter  were  as  much  or  more  interested  than 
the  tenant,  the  former  owning  the  fee,  and  the  latter  the  right  to  the 
use  only.  If  this  use  could  be  subjected,  or  the  building  itself,  by 
reason  of  the  tenant  having  built  it,  when  the  tenancy  expires,  and 
the  attempt  is  to  enforce  the  claim  against  the  owner,  we  see  no  rea- 
son why  he  may  not  avail  himself  of  the  provisions  of  the  statute 
and  say :  "You  have  no  right  to  enforce  this  lien  against  me  after 
the  expiration  of  twelve  months  from  the  completion  of  the  work," 
and  particularly  when,  if  the  tenant  was  still  in  possession,  the  ap- 
pellee's were  necessary  parties.  The  lease  was  forfeited  before  any 
summons  issued  against  the  appellees,  and  the  right  of  the  tenant 
(if  he  had  such  right)  to  remove  the  fixtures,  no  longer  existed.  If 
two  own  an  interest  in  real  estate,  one  for  years  and  the  other  in 
remainder,  if  there  is  a  claim  against  the  estate  that  may  be  en- 
forced by  him  within  a  certain  time,  and  the  interest  of  the  one 
owning  the  particular  estate  terminates  when  he  alone  is  a  party 
to  the  action,  if  the  tenant  in  fee  is  afterwards  made  defendant,  the 
pendency  of  the  action  against  the  one  owning  the  lesser  estate  would 
not  preclude  the  owner  of  the  fee  from  pleading  the  statute  of  limi- 
tations, or  from  having  the  benefit  of  a  statute  denying  all  liens  where 
the  action  is  not  prosecuted  within  twelve  months.  The  cause  of 
action  or  lien  cannot  be  said  to  have  been  asserted  as  against  ap- 
pellees or  their  property,  until  the  filing  of  the  amendment  making 
them  parties.  As  owners,  they  had  the  right  to  remove  the  lien,  and 
as  both  the  tenancy  and  lien  were  gone  when  they  were  sought  to 
be  charged,  or  their  property  made  liable,  the  chancellor  cannot  now 
subject  this  property  to  the  payment  of  appellants'  claim. 

Judgment  affirmed, 

L.  N.  Dembits,  for  appellants. 
James  S.  Pirtle,  for  appellees. 


340  Kentucky  Opinions. 

John  P.  Cronnie,  et  al.,  v,  Henry  Monsh,  et  al. 

Implied  Contract — ^Construction. 

Where  in  a  written  contract  a  person  agrees  that  he  will,  during 
the  year,  furnish  ice  to  a  dealer,  at  an  agreed  price,  and  the  purchaser 
agrees  to  pay  such  price  for  so  much  of  the  ice  as  might  be  delivered 
to  him,  the  law  implies  an  agreement  upon  his  part  to  receive  and  pay 
for  the  ice. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

January  29,  1875. 

Opinion  by  Judge  Lindsay  : 

The  written  agreement  entered  into  by  Cronnie  and  Monsh  on  the 
1st  day  of  April,  1870,  bound  Cronnie  to  furnish  to  Monsh  northern 
ice  for  the  year  1870,  at  fifty-five  cents  per  hundred  pounds,  or  eleven 
dollars  per  ton.  It  bound  Monsh  to  pay  at  said  rates  for  the  ice  de- 
livered to  him  at  stipulated  intervals,  and  in  all  other  respects  to 
comply  with  the  terms  of  said  agreement. 

Contemporaneous  with  the  execution  of  this  written  agreement, 
Monsh,  with  Hilger,  executed  and  delivered  to  Cronnie  a  bond  in 
the  penal  sum  of  one  thousand  dollars,  by  which  he  was  obliged  to 
pay  on  said  ice,  and  in  all  other  respects  to  keep  and  perform  his 
part  of  the  agreement. 

There  is  no  express  stipulation  incorporated  into  either  of  the 
writings,  binding  Monsh  to  demand  and  receive  ice  at  the  agreed 
price ;  and  Cronnie  insists  that  on  account  of  the  want  of  such  an 
express  agreement  on  the  part  of  Monsh,  the  contract  is  void  for  the 
want  of  mutuality. 

When  all  the  language  used  by  the  two  parties  in  the  two  writings 
is  considered  together,  it  is  manifest  that  notwithstanding  their  fail- 
ure to  state  in  express  terms  that  Monsh  was  to  receive  and  pay  the 
stipulated  price  for  some  quantity  of  ice,  yet  in  point  of  fact  he  did 
so  agree.  In  the  case  of  a  mutual  written  agreement,  the  express 
stipulation  with  reference  to  any  particular  point,  connected  with 
the  subject-matter  by  one  party,  raises  under  the  circumstances  of 
such  a  case  as  this,  a  corresponding  implied  contract  by  the  other. 
When  Cronnie  agreed  in  writing  that  he  would,  during  the  year 
1870,  furnish  to  Monsh  ice  at  an  agreed  price,  and  Monsh  under- 
took to  pay  said  price  for  so  much  of  the  ice  as  might  be  delivered 
to  him,  the  law  implied  an  agreement  upon  his  part  to  demand,  re- 
ceive and  pay  for  a  quantity  of  ice,  exceeding,  at  the  least,  the  quan- 


C.  J.  Clark,  et  al.,  v,  David  Enoch.  341 

tity  or  weight  recited  in  the  agreement,  as  the  standard  by  which 
the  price  was  to  be  fixed  and  determined.  The  writings  before  us 
are  doubtful  in  their  import,  but  in  such  cases,  when  a  rational  and 
not  improbable  construction  can  be  given  to  a  contract,  it  will  be 
adopted,  in  order  that  it  may  be  held  to  have  some  effect. 

But  Cronnie  objects  further,  that  if  it  be  conceded  that  Monsh 
was  bound  by  the  contract  to  accept  ice  and  pay  the  agreed  price, 
the  quantity  he  was  to  receive  is  left  wholly  a  matter  of  conjecture, 
and  therefore  that  the  contract  should  be  treated  as  void  and  in- 
operative for  the  want  of  certainty. 

Where  a  writing,  without  the  aid  of  extraneous  proof,  evidences 
an  enforceable  contract,  it  **may  be  read  by  the  light  of  surrounding 
circumstances,  in  order  more  perfectly  to  understand  the  intent  and 
meaning  of  the  parties.''    i  Greenleaf  on  Evidence,  Sec.  277. 

Appellant,  by  his  answer,  sets  out  the  surrounding  circumstances, 
in  the  light  of  which  the  writings  under  consideration  are  to  be  read, 
in  order  to  determine  the  quantity  of  ice  Monsh  agreed  to  receive 
and  pay  for.  He  says  Monsh  applied  to  him  to  purchase  so  much 
northern  ice,  and  no  more,  as  he  could,  by  the  running  of  one  ice 
wagon,  retail  to  his  customers  in  the  city  of  Louisville  for  and  during 
the  year  1870.  He  shows  the  object  and  purpose  Monsh  had  in  buy- 
ing the  business  in  which  he  was  engaged,  and  the  disposition  he 
intended  to  make  of  the  ice  for  which  he  was  contracting.  It  is  true 
these  facts  do  not  appear  in  the  petition  and  amended  petition  to 
which  appellant  demurred ;  but  as,  according  to  our  construction  of 
the  writings,  the  pleading  of  Monsh  entitled  him  to  recover  at  least 
nominal  damages,  and  therefore  the  general  demurrers  were  prop- 
erly  overruled,  the  answer  of  Cronnie  may  be  considered  to  illustrate 
the  propriety  of  the  rule  of  allowing  obscure  and  uncertain  writings 
to  be  read  by  the  light  of  surrounding  circumstances. 

As  the  court  below  did  not  err  in  overruling  the  general  demur- 
rers, the  judgment  appealed  from  must  be  affirmed, 

Gibson  &  Gibson,  G.  V.  Hanks,  for  appellants, 
John  M,  Harlan,  B,  H,  Allen,  for  appellees. 


C.  J.  Clark,  et  al.,  z\  David  Enoch. 


City  Councils-Record  as  Evidence— Evidence. 

The  record  of  the  proceedings  of  the  city  council  is  the  best  evi- 
denes  of  such  prooeedings,  and  parol  proof  cannot  establish  a  fact  re- 
quired to  be  made  a  matter  of  record. 


342  Kentucky  Opinions. 


Oral  testimony  Is  not  admissible  to  show  that  which  the  city  records 
state  is  not  true. 

APPEAL  FROM  LOUISVILLE  CHANCBRT  COURT. 

January  29,  1875. 

Opinion  by  Judge  Pryor  : 

The  proceedings  of  the  general  council  ordering  the  work  exe- 
cuted by  the  appellee,  are  all  regular  and  in  accordance  with  the  pro- 
visions of  the  city  charter;  and  the  only  ground  of  defense  relied 
on  by  the  property-holders,  that  has  been  urged  with  any  degree  of 
plausibility,  is  that  the  legislative  records  of  the  city,  as  originally 
made,  show  that  the  contract  declared  on,  or  upon  which  the  liability 
of  the  appellants  originated,  was  made  with  one  William  Terry,  and 
not  with  the  appellee.  In  order  to  make  out  this  defense  one  or  more 
witnesses  are  introduced,  who  say  they  inspected  the  records  after 
the  contract  is  alleged  to  have  been  made;  and  from  them  it  ap- 
peared that  the  contract  for  the  work  done  was  made  with  Terry, 
and  approved  as  such  by  the  council ;  that  after  the  institution  of  the 
action  they  again  examined  the  record,  and  found  the  name  of 
Terry  erased,  and  that  of  the  appellee  substituted.  When  this 
change  was  made  it  does  not  satisfactorily  appear ;  but  it  does  appear 
that  the  original  contract  was  made  with  the  appellee,  and  not  with 
Terry,  this  fact  being  evidenced  by  the  exhibition  of  the  contract 
itself  upon  the  hearing  in  the  court  below.  If  such  an  omission  or 
mistake  was  made,  it  was  only  a  clerical  error,  and  if  corrected  we 
cannot  see  how  the  rights  of  appellants  have  been  affected  by  it. 

It  is  certain  that  the  appellee  made  the  improvement,  and  equally 
so  that  the  original  contract  was  made  with  him ;  and  the  council,  in 
approving  the  contract,  could  not  have  approved  it  as  made  with 
Terry,  for  the  reason  that  no  such  contract,  so  far  as  appears  from 
this  record,  ever  existed.  It  is  insisted,  however,  that  the  record  of 
the  city  legislature  is  the  best  evidence  of  this  fact,  and  in  this 
proposition  we  concur  with  counsel.  If  it  appears  from  the  record 
that  it  was  made  with  Terry  the  appellee  cannot  maintain  this 
action.  The  record,  as  exhibited,  shows  that  the  contract  was  made 
with  the  appellee,  and  there  is  no  evidence  in  the  case  to  contradict 
it.  If  the  proceedings  of  the  city  council  and  the  verity  of  its  ordi- 
nances is  made  to  depend  more  upon  the  testimony  of  those  who 
have  inspected  the  record  than  the  record  itself,  there  is  but  little 


William  S.  Abert  v.  W.  J.  Berry.  343 

necessity  for  any  legislative  action,  and  no  security  for  the  rights 
of  those  based  upon  this  high  character  of  proof.  It  is  recognized 
as  a  general  rule  of  evidence  that  parol  proof  cannot  be  substituted 
to  establish  a  fact  that  is  required  to  be  made  a  matter  of  record, 
and  in  this  case  the  right  of  recovery  (although  the  appellee  may 
have  done  the  work)  is  made  to  depend  upon  the  action  of  the  coun- 
cil of  record,  showing  that  they  ordered  the  work  and  approved  the 
contract ;  and  without  this  character  of  proof  the  appellee  would  be 
without  remedy  against  either  the  city  or  property  holder. 

When  the  appellee  comes  with  this  kind  of  evidence,  his  right, 
as  is  maintained  by  appellants,  to  recover  of  the  property  holder, 
although  sustained  by  evidence,  of  record,  must  yield  to  the  sec- 
ondary evidence  consisting  of  the  statements  of  those  who  have 
examined  the  records,  and  state  that  they  have  been  altered  by  eras- 
ing the  name  of  Terry  and  inserting  that  of  appellee.  No  fraud  is 
charged  against  the  latter,  but  oral  testimony  was  introduced  to 
show  that  which  the  record  states  is  not  true.  Such  evidence,  how- 
ever creditable  it  may  be,  is  clearly  inadmissible  to  defeat  the  re- 
covery in  this  case.  The  proof  of  Shanks  shows  that  Eleventh 
street  was  marked  out  and  opened ;  and  if  so,  it  is  still  a  street,  al- 
though obstructed.  The  evidence  also  conduces  to  show  that  notice 
was  given  the  property  holders  as  required  by  the  city  charter; 
that  as  some  complained  of  not  receiving  notice,  a  second  inspection 
of  the  work  was  made,  and  that  the  engineer  or  his  assistant  at- 
tended on  each  day.  In  regard  to  these  issues  of  fact  there  is  con- 
flicting proof,  and  for  this  reason,  if  no  other,  this  court  will  not 
disturb  the  judgment,  and  the  same  is  now  affirmed, 

Bullitt,  Bullitt  &  Harris,  Young  &  Boyle,  for  appellants. 
Badger  &  Haritz,  T.  L.  Bennett,  for  appellee. 


William  S.  Abert  v.  W.  J.  Berry. 

Attorneys  at  Law — Parties  Conducting  Their  Own  Causes— Weight  of 
Evidence. 

A  party  litigant  may  appear  by  himself  or  by  counsel.  He  may  be 
required  by  the  court  to  elect  to  either  take  charge  of  his  defense,  or 
permit  it  to  be  done  by  his  counsel. 

Weight  of  Evidence. 

V^ere  the  evidence  is  conflicting  and  has  been  passed  upon  by  the 
court  and  Jury,  the  court  of  appeals,  unless  manifest  injustice  has  been 
done,  will  not  interfere. 


344  Kentucky  Opinions. 

APPEAL  FROM  CAMPBELL  CIRCUIT  COURT. 

January  30,  1875. 

Opinion  by  Judge  Pryor: 

A  party  litigant  can  appear  by  himself  or  counsel,  and  in  the  trial 
of  the  cause,  should  be  required  to  undertake  the  management  of 
the  case  himself,  or  entrust  it  to  his  attorney;  and,  therefore,  the 
court  below  acted  properly  in  giving  the  appellant  his  election  to 
conduct  the  defense  in  his  own  behalf,  or  permit  it  to  be  done  by  his 
counsel.  The  preponderance  of  the  testimony  is  not  so  great  on 
the  side  of  the  appellant  as  to  authorize  a  reversal  upon  that  ground. 
The  appellee  swears  that  the  appellant  was  one  of  the  partners  when 
the  contract  in  regard  to  the  fee  was  entered  into,  and  although  he 
may  have  been  mistaken  in  this,  from  the  statement  of  the  appellant 
we  must  conclude  that  their  partnership  was  not  then  in  existence ; 
still  there  is  proof  conducing  to  show  a  joint  employment  of  Nelson 
&  Abert,  and  that  a  division  of  the  fee,  as  proposed  by  Berry,  who 
had  instituted  the  actions,  should  be  construed  to  mean  one-half  to 
Nelson  &  Abert,  and  the  remaining  half  to  the  appellee.  The  evi- 
dence is  conflicting,  and  has  been  passed  on  by  both  the  judge  and 
jury  below,  and  in  such  a  case,  unless  manifest  injustice  has  been 
done  the  unsuccessful  parties,  this  court  will  not  interfere. 

The  testimony  regarded  by  appellants  as  incompetent,  if  excluded 
could  not  have  changed  the  result. 

The  judgment  is  affirnwd. 

IV,  S.  Abert,  for  appellant 

T.  M.  Webster,  John  S,  Ducker,  for  appellee. 


WiLLi.AM  E.  Russell  z',  Cumberland  &  Ohio  R.  Co. 

Corporatiotts— Vacation  of  Charter— Subscription  Contracts. 

A  private  citizen  cannot  maintain  an  action  to  vacate  or  perfect  the 
charter  of  a  corporation.  Such  action  can  only  be  maintained  by  the 
commonwealth  and  by  the  attorney-general. 

Subscription  Contracts. 

Where  counties  subscribed  for  stock  in  a  railroad  corporation  prior 
to  the  Act  of  April  9, 1873  (Gen.  Stats.,  p.  843 )»  said  act  haa  no  applica- 
tion to  such  subscription  contracts.  Said  act  is  not  bo  far  retroactive 
in  its  operation  as  to  interfere  with  consummated  contracts. 


WiLUAM  E.  Russell  v.  Cumberland  &  Ohio  R.  Co.       345 

APPEAL  FROM  MARION  CIRCUIT  COURT. 

February  2.  1875. 

Opinion  by  Judge  Lindsay  : 

A  private  individual  cannot  maintain  an  action  to  vacate  or  per- 
fect the  charter  of  a  corporation.  Such  actions  must  be  prosecuted 
by  the  commonwealth  and  by  the  attorney-general,  or  under  his 
sanction  and  direction,  by  an  attorney  representing  the  common- 
wealth, and  actions  to  vacate  or  repeal  a  railroad  charter  can  only 
be  instituted  and  maintained  by  order  of  the  legislature,  except 
where  otherwise  expressly  provided.  Sees.  530,  531,  Civil  Code  of 
Practice. 

Appellant  fails  to  state  the  time  or  times  at  which  the  counties  of 
Marion,  Taylor  and  Green  subscribed  for  stock  in  the  Cumberland 
and  Ohio  Railroad  Company.  If  the  subscriptions  were  fully  con- 
summated, and  the  contracts  therefor  fully  perfected  before  the 
passage  of  the  act  of  April  9,  1873,  entitled  "An  Act  for  the  pro- 
tection of  counties,  cities,  etc.,  subscribing  for  stock  in  railroads, 
turnpikes,  and  other  improvements"  (Gen.  Stat.,  p.  843),  then  said 
act  does  not  apply  to  such  contracts,  and  the  railroad  company  can- 
not be  compelled  to  execute  the  bonds  therein  provided  for,  as  a  con- 
dition precedent  to  its  right  to  demand  the  bonds  of  said  counties  in 
payment  of  their  respective  contracts  of  subscription  for  stock.  Said 
act  is  in  the  main  prospective,  and  certainly  is  not  so  far  retroactive 
in  its  operation  as  to  interfere  with  consummated  contracts.  Neither 
was  it  intended  to  be  an  amendment  to  the  charter  of  this  or  any 
other  railroad  company.  Potter's  Dwarris  on  Statutes  and  Their 
Construction  162,  and  note  9;  Cooley's  Constitutional  Limitations 
370,  and  authorities  cited.  Aspinwflll  zk  Daviess  County,  22  How. 
(U.  S.)  364;  The  Cumberland  &  Ohio  R,  Co.  v.  The  Judge  of 
Washington  County  Court,  Mss.  Opinion,  5  Ky.  Opinions  519,  580. 
It  may  be  that  the  contract  with  Robinson,  to  furnish  cross-ties,  is 
not  as  advantageous  to  the  company  as  it  might  have  been  made, 
and  that  Robinson  was  not  the  lowest  and  best  bidder,  and  that  in 
letting  it  out,  the  officers  of  the  company  acted  in  bad  faith  to 
bidders,  and  injuriously  to  the  stockholders,  and  yet  we  do  not  see 
that  the  courts  have  the  right  to  interfere.  It  is  not  charged  that 
the  contract  was  the  result  of  a  fraudulent  combination  between 
Robinson  and  the  officers  of  the  company;  and  unless  there  was 
fraud  on  both  sides,  the  courts  cannot  deprive  Robinson  of  the  ad- 


346  Kentucky  Opinions. 

vantages  of  a  contract  that  was  honestly  and  fairly  entered  into  by 
him. 

We  are  of  opinion  that  the  petition  sets  out  no  cause  of  action 
against  any  of  the  appellees,  and  that  the  general  demurrers  were 
properly  sustained,  and  the  petition  properly  dismissed. 

Judgment  affirmed. 

C,  S.  Hill,  for  appellants, 

H.  C.  Pendill,  Harrison  &  Knott,  R.  H.  Rountree,  for  appellee. 


J.  B.  Covington,  et  al.,  v.  C.  G.  Shanklin. 

Will— Construction. 

Where  a  clause  In  a  will  provides  that  "should  any  one  of  my  child- 
ren depart  this  life  without  issue  of  their  body,  it  is  my  wish  that 
their  part  of  my  estate  revert  to  their  surviving  brothers  and  sisters/' 
it  is  held  it  should  be  construed  to  mean  the  death  of  the  legatee 
(child)  after  that  of  the  testator  and  before  the  time  of  distribution, 
or  when  the  legacy  may  be  reduced  to  possession. 

APPEAL  FROM  TODD  CIRCUIT  COURT. 

February  2,  1875. 

Opinion  by  Judge  Pryor: 

The  will  of  Beverly  Stubble,  under  which  these  appellants  claim, 
gives  to  each  one  of  his  children  as  they  arrive  at  age  or  marry,  the 
one-ninth  part  of  his  estate,  except  the  .land  owned  by  him  at  his 
death.  This  is  given  to  his  wife  during  her  life  or  widowhood,  and 
if  she  again  marries  she  is  limited  to  a  certain  number  of  acres 
described  by  the  provision  of  the  will.  The  executors,  in  the  event  of 
the  wife's  marriage,  were  directed  to  sell  all  the  land  except  that 
part  the  widow  had  a  right  to  retain,  and  pay  the  proceeds  over  to 
his  children ;  and  not  onlv  so,  but  after  his  wife's  death  thev  were 
directed  to  sell  that  portion  devised  to  her,  and  pay  over  the  pro- 
ceeds to  his  children.  He  had  converted  this  real  estate  into  money 
by  three  particular  clauses  of  his  will,  and  this  money  to  be  paid  in 
equal  portions  to  his  children,  without  any  restriction  whatever. 
After  making  the  devises  above,  the  testator  then  adds  the  follow- 
ing clause :  "Should  any  one  of  my  children  depart  this  life  without 
issue  of  their  body,  it  is  my  wish  that  their  part  of  my  estate  revert 
to  their  surviving  brothers  and  sisters." 


J.  B.  Covington,  et  al.,  v,  C,  G.  Shanklin.  347 

Wh«n  considering  the  directions  given  his  executors  as  to  the 
payment  of  the  money  or  proceeds  of  the  land  to  his  children,  the 
thought,  no  doubt,  suggested  itself  as  to  what  disposition  should  be 
made  of  the  portion  going  to  one  of  the  children  if  he  or  she  should 
die  before  the  time  arrives  at  which  the  executors  are  to  pay  over 
to  this  child  his  or  her  part  of  the  estate ;  and  intending  that  the  di- 
rections should  be  plain  and  explicit,  and  that  his  children  should  en- 
joy the  estate,  he  inserted  that  provision  of  the  will  giving  the  portion 
of  the  deceased  child  or  children  to  the  survivors.  The  devisor,  when 
directing  this  money  to  be  paid  over  to  his  children  and  giving  to 
each  one-ninth  part  of  his  estate,  never  intended  to  so  restrict  the 
devise  as  to  make  the  title  of  the  devisee  doubtful,  and  to  depend 
upon  issue  bom  and  alive  at  the  death  of  the  devisor.  The  con- 
tingency provided  against  was  the  death  of  the  child  when  the  ex- 
ecutors came  to  make  the  distribution,  or  when  the  children  were 
entitled  to  the  estate. 

The  case  of  Birney  v.  Richardson  and  Ford,  5  Dana  424,  is  anal- 
ogous in  every  particular  to  the  one  before  us.  In  that  case  the 
rule  for  construing  a  similar  clause  in  the  will  of  Thomas  Richard- 
son was  as  follows :  "In  such  a  case,  the  simple,  unexplained  words, 
'dying  without  issue,'  will,  according  to  a  general  and  well  estab- 
lished rule,  be  construed  as  meaning  the  death  of  the  legatee  after 
that  of  the  testator  and  before  the  time  of  distribution,  or  when  the 
legacy  may  be  reduced  to  possession.'*  The  death  must  be  during 
the  particular  estate,  and  such  should  be  the  construction  in  this 
case,  for  the  additional  reason  that  the  testator  had  made  absolute 
gifts  of  portions  of  his  estate  to  some  of  his  children,  and  by  his  will, 
in  order  to  equalize  his  children,  required  those  to  whom  he  had 
given  this  estate  to  surrender  it,  and  upon  their  failure  to  do  so,  they 
were  excluded  from  the  benefits  of  its  provisions.  This  the  children 
who  had  the  property  converted  to,  and  surrendered  what  they 
owned  in  order  to  accept  the  provisions  of  the  will.  There  had  been 
no  limitation  placed  upon  the  right  of  the  .children  over  the  property 
already  given,  nor  did  the  devisor  intend  to  restrict  it  by  the  pro- 
visions of  his  will. 

T4ie  appellee,  however,  manifests  no  title  to  the  land  in  contro- 
versy. The  will  recorded  in  Tennessee  is  no  evidence  of  title  in  this 
state,  unless  proven  in  the  manner  pointed  out  by  the  statute.  As 
the  record  is  now  presented,  the  appellants  being  the  brothers  and 
sisters  of  William  Raymond,  or  claiming  through  them,  are  en- 
titled to  the  land  as  against  the  appellee.    Upon  the  return  of  the 


348  Kentucky  Opinions. 

cause,  the  appellee  should  be  allowed  to  amend  his  pleading^  and 
present  his  title,  if  he  is  able  to  do  so.  This  court  considering  it 
proper  on  the  facts  of  the  case  to  construe  the  clause  of  the  will  in 
controversy,  in  order  to  prevent  further  litigation  in  the  event  the 
title  of  the  appellee  is  made  to  appear,  the  judgment  is  reversed  and 
cause  remanded  for  further  proceedings  consistent  with  the  opinion. 

Petrie  &  Reeves,  for  appellants. 

Terry,  /.  &  J.  W.  Rodtnan,  for  appellee. 


Peter  Kaiber  v.  Ann  M.  Harris,  et  al. 


Tax  Sale»~Penaltie8— Decedent's  Real  Estate. 

Before  a  person  buying  real  estate  at  a  tax  sale  can  legally  exact 
the  penalties  prescribed  by  the  statute,  he  must  show  that  the  statutes 
have  been  complied  with  in  levying  such  taxes  and  in  making  such 
sale. 

Decedent's  Real  EsUte. 

A  tax  sale  made  under  a  tax  bill  against  a  named  person's  estate 
does  not  comply  with  the  statute;  such  bill  and  sale  should  be  made  in 
the  name  of  the  heirs  who  inherited  the  real  estate,  and  not  against 
the  estate. 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

February  3,  1875. 

Opinion  by  Judge  Cofer: 

In  a  proceeding  which,  from  the  imperfect  record  before  us,  we 
suppose  to  have  been  for  a  settlement  of  the  estate  of  H.  C.  Harris, 
the  appellant  presented  to  the  master  commissioner  a  claim  against 
the  estate  of  said  Harris  for  $511.41.  This  claim  was  based  on  the 
fact  that  real  estate  formerly  belonging  to  Harris  had  been  sold  by 
the  collector  of  city  taxes  in  Covington  for  unpaid  taxes,  and  pur- 
chased by  the  appellant  in  December,  1869,  at  the  total  sum  of 
$191.78,  upon  which  he  claimed,  by  way  of  penalty,  the  sum  of 
$319.63,  which  is  at  the  rate  of  50  per  cent,  per  annum  from  the  Sate 
of  the  sale  to  the  filing  of  the  claim  with  the  commissioner. 

The  master  allowed  and  reported  in  appellant's  favor  the  amount 
actually  paid  by  him  in  discharging  of  the  city  taxes,  with  6  per 
cent,  per  annum  interest.  To  this  report  the  appellant  filed  excep- 
tions, because  the  whole  amount  of  his  claim  had  not  been  allowed ; 


Peter  Kaiber  v,  Ann  M.  Harris,  et  al.  349 

and  the  court  having  overruled  his  exceptions  and  decreed  a  dis- 
tribution of  the  fund,  he  has  appealed. 

The  charter  of  the  city  of  Covington  requires  the  assessor  to  affix 
against  the  name  of  each  inhabitant  the  amount  of  his  real  estate 
in  said  city,  with  a  proper  description  by  number  and  situation,  and 
requires  the  city  clerk  to  make  out  a  tax  bill  against  each  person 
assessed  with  taxes,  specifying  thereon  such  item  of  taxation,  the 
value  thereof,  and  the  tax  imposed.  It  also  provides  that  tax  bills 
shall  be  placed  in  the  hands  of  the  city  collector,  and  if  not  paid,  au- 
thorizes him,  after  advertising,  to  sell  the  real  estate  of  the  tax- 
payer. Real  estate  so  sold  may  be  redeemed  by  the  owner  at  any 
time  within  three  years,  by  paying  to  the  purchaser  the  amount  of 
his  bid  with  50  per  cent,  thereon  if  redeemed  within  one  year,  and 
if  not  redeemed  within  that  time,  by  paying  50  per  cent,  per  annum. 

It  is  under  these  provisions  that  the  appellant  claims  to  be  en- 
titled to  the  enormous  penalty  which  he  insists  on  in  this  case.  Such 
penalties  will  not  be  enforced  unless  he  who  claims  them  can  show 
a  strict  compliance  with  all  the  requirements  of  the  statute  bearing 
upon  the  subject. 

The  tax  bills  under  which  the  appellant  purchased  are  copied  into 
the  record,  and  they  fail  to  show  even  a  substantial,  much  less  a 
strict  compliance  with  the  requirements  of  the  city  charter.  The 
assessments  were  all  made  after  the  death  of  Harris  and  should  have 
been  made  against  those  who  succeeded  to  his  title,  in  order  to  com- 
ply with  the  requirement  that  assessments  shall  be  against  the  owner 
of  the  property  assessed,  and  both  the  assessment  and  the  tax  bills 
should  have  contained  a  proper  description  of  the  property  assessed. 
The  assessment  does  not  appear  in  the  record,  and  we  have  no  means 
of  knowing  whether  it  was  properly  made  or  not,  or  indeed,  whether 
any  assessment  was  in  fact  made ;  but  the  tax  bills  are  made  out,  not 
against  the  owners  of  the  property,  but  against  the  "H.  C.  Harris 
estate,"  and  therefore  gave  the  collector  no  authority  to  sell  the 
property  which  then  belonged  to  persons  not  named  on  the  tax  bill 
as  owners. 

There  are  other  objections  which  are  equally  fatal  to  the  appel- 
lant's claim  to  a  penalty  now  amounting  to  more  than  150  per  cent; 
but  it  is  not  deemed  necessary  to  consider  them,  as  that  already 
named  is  sufficient. 

Judgment  affirmed. 

R.  D.  Handy,  W.  D.  Rankin,  for  appellant. 
R.  Richardson,  for  appellees. 


3SO  Kentucky  Opinions. 

Sallie  W.  Duerson,  et  al.,  v.  W.  W.  Gardner,  et  al. 


Mortgage — Pleading. 

Where  a  mortgage  is  acknowledged  by  a  married  wotnan  in  accord- 
ance with  the  statute,  and  when  its  contents  have  been  explained  to 
her  by  the  officer  before  whom  acknowledged,  before  she  can  have  such 
mortgage  canceled  she  must  aver  and  prove  facts  showing  that  it  was 
not  read  and  explained,  or  that  it  was  not  acknowledged,  or  other 
facts  to  avoid  the  instrument. 

Pleading. 

If  it  appears  that  the  wife  had  no  power  to  divest  herself  of  title, 
facts  should  be  pleaded  setting  up  such  want  of  power. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

February  5, 1875. 

.  Opinion  by  Judge  Pryor  : 

It  is  made  to  appear  from  the  petition  of  appellant  that  the  cred- 
itors of  the  bankrupt  have  an  interest  in  the  proceeds  of  the  note  in 
controversy;  and  the  bankrupt  court  having  assumed  the  jurisdic- 
tion, and  undertaken  to  administer  for  the  benefit  of  creditors,  and 
to  make  distribution,  we  see  no  reason  for  the  state  court  to  inter- 
fere in  order  to  determine  who  of  the  bankrupt  creditors  are  entitled 
to  it.  They  are,  in  fact,  in  the  bankrupt  court,  and  a  state  court, 
upon  such  a  state  of  case,  will  not  entertain  or  assume  the  jurisdic- 
tion. 

There  is  nothing  in  the  petition  manifesting  a  right  on  the  part  of 
appellant  against  the  assignee  in  bankruptcy,  or  the  creditors  of  the 
bankrupt.  It  is  alleged  that  the  note  was  delivered  to  Parks,  and 
afterwards  a  mortgage  executed  by  the  husband  and  wife  upon  the 
wife's  note,  to  secure  certain  debts,  when  the  real  object  was  to  re- 
ceive other  debts,  and  have  conveyed  to  the  wife  certain  estate  as  a 
consideration  for  the  note  to  the  extent  the  proceeds  were  applied. 
The  allegation  that  the  mortgage  was  obtained  by  fraud  will  not  suf- 
fice. The  wife  has  acknowledged  a  writing  in  accordance  with  the 
provisions  of  the  statute,  when  its  contents  have  been  explained  to 
her  by  the  officer  taking  the  acknowledgment ;  and  before  her  petition 
to  cancel  such  an  instrument  can  be  entertained,  she  must  allege  and 
prove  facts  showing  that  it  was  not  read  and  explained  to  her,  or 
that  she  never  acknowledged  it,  or  other  statements  that,  if  true, 
would  avoid  the  effect  of  the  instrument.  The  legal  presumption 
is  that  she  signed  the  mortgage  and  acknowledged  it  in  the  manner 


Henry  Weitzel  v.  Fred  Nover.  351 

prescribed  by  law,  and  the  allegation  that  it  was  obtained  by  fraud 
and  misrepresentation  is  not  sufficient  to  negative  such  a  presump- 
tion. 

The  facts  should  be  stated.  Parks  may  have  made  the  representa- 
tion, yet  if  the  wife  executed  a  mortgage  for  other  purposes  than 
those  originally  intended,  read  and  explained  to  her  by  the  clerk,  it  is 
certainly  binding  on  the  wife.  If  it  appeared  that  the  wife  had  no 
power  to  divest  herself  of  title,  such  allegations  would  be  necessary, 
as  an  acknowledgment  before  the  clerk  could  not  make  it  a  valid 
instrument.  The  allegation  that  it  was  or  is  the  wife's  separate 
estate  will  not  do;  the  facts  should  be  alleged  showing  how  this 
separate  estate  was  created  in  an  attempt  to  negative  the  right  of 
the  wife  to  mortgage  it.  If  the  note  was  executed  to  the  wife  for 
the  proceeds  of  her  land,  she  had  the  power,  in  conjunction  with 
her  husband  to  mortgage  it,  unless  there  was  such  a  separate  estate 
in  the  land,  or  one  created  as  to  the  note,  so  as  to  prevent  the  hus- 
band and  wife  from  disposing  of  it;  and  if  so,  the  facts  should  be 
stated,  that  the  court  may  determine  the  question. 

There  is,  therefore,  nothing  in  the  petition  showing  that  creditors 
of  the  bankrupt  or  the  assignee  have  no  right  to  the  note.  If  a 
bankrupt  transfers  the  property  of  another  to  his  assignee  without 
the  consent  of  the  party  owning  it,  then  in  possession  and  claiming 
to  hold  as  against  the  rightful  owner,  he  may  be  sued  in  any  court 
having  jurisdiction  over  the  parties  and  the  subject-matter  of  the 
action.  The  mortgage  is  not  part  of  the  record,  but  the  conclusion 
cannot  be  that  it  was  signed  and  acknowledged  by  the  husband  and 
wife.  If  it  appeared  that  the  note  had  accomplished  its  purpose,  and 
there  was  a  balance  due  the  appellant  in  the  hands  of  the  assignee,  the 
state  court,  unless  there  was  some  other  defense  than  that  he  has  as- 
signed, would  compel  him  to  pay  it  over.  Nothing  of  this  sort 
appears. 

Judgment  aMrmed. 

D.  W.  Sander,  Pirtle  &  Caruth,  for  appellants. 
A.  Barnet,  for  appellees. 


Henry  Weitzel  v.  Fred  Nover. 

Patent  Rights — Defense  on  the  Ground  of  Fraud. 

When  a  right  to  manufacture  and  sell  a  patented  article  is  conveyed 
by  one  not  entitled  to  convey,  and  hence  fraudulent,  before  the  pur- 
chaser can  avail  himself  of  the  fraud  as  a  defense  to  an  action  to  col- 
lect the  purchase  price,  he  must  offer  to  return  what  he  has  purchased. 


352  Kentucky  Opinions. 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

February  5,  1875. 

Opinion  by  Judge  Pryor  : 

The  original  answer  and  amendmente  admit  the  delivery  of  the 
fasteners  to  appellant,  and  their  use  by  him.  There  is  no  controversy 
as  to  the  contract  of  sale ;  but  it  is  maintained  that  there  was  a  fraud 
practised  by  appellee  in  selling  these  fasteners,  when  the  right  to 
manufacture  and  sell  was  in  one  Putman,  by  reason  of  a  patent 
giving  to  him  the  exclusive  right  to  manufacture  the  article.  If  the 
fraud  was  perpetrated  as  alleged,  and  constitutes  a  defense  for  the 
appellant,  before  he  can  avail  himself  of  it  he  must  offer  to  return 
what  he  has  purchased,  and  not  retain  it,  or  pay  some  one  else  for  it. 
Putman  had  his  remedy  against  the  appellee  for  an  infringement 
upon  his  patent  right,  and  had  already,  as  the  record  shows,  re- 
covered a  large  sum  against  the  firm  of  which  appellee  was  a  mem- 
ber, or  in  such  way  connected ;  and  the  value  of  the  articles  sold  may 
be  embraced  in  that  judgment,  or,  if  sold  afterwards,  the  appellants 
should  have  returned,  or  offered  to  do  so,  the  articles  he  obtained 
from  appellee.  If  it  belonged  to  Putman,  appellant  should  have 
made  him  a  party  to  the  action  in  order  that  the  right  of  property 
might  be  determined. 

The  judgment  is  affirmed. 

B,  Richardson,  for  appellant, 
George  G.  Perkins,  for  appellee. 


R.  W.  Davis  v.  City  of  Covington. 


Cities— Repair  of  Sidewalks— Liability  for  Damages. 

While  it  is  the  duty  of  a  city  to  keep  its  sidewalks  in  repair  and 
free  from  obstructions,  it  does  not  guarantee  that  they  will  be  so  kept 
at  all  times,  under  all  circiunstances;  such  city  is  only  liable  when  it 
has  notice,  or  when  the  defect  has  existed  long  enough  for  it  to  ac- 
quire information,  and  fails  to  use  ordinary  diligence  in  removing  the 
obstruction. 

APPEAL  PROM  KENTON  CIRCUIT  COURT. 

February  5,  1875. 

Opinion  by  Judge  Lindsay  : 

Although  it  is  the  duty  of  the  city  government  of  Covington  to 


John  Sanderson  &  Wife  v.  Susan  E.  Hays,  et  al.       353 

keep  its  sidewalks  in  repair,  and  free  from  obstructions,  yet  its  duty 
in  this  regard  is  not  so  absolute  and  imperative  as  to  render  the  city  a 
guarantor  that  the  sidewalks  will  be  kept  clear  of  obstructions  at  all 
times,  under  any  and  all  circumstances.  Before  the  city  can  be  held 
liable  in  a  civil  action  for  damages  resulting  to  any  person,  because  of 
its  failure  to  keep  its  sidewalks  clear,  it  must  be  made  to  appear  that 
the  city,  after  notice,  or  after  reasonable  time  within  which  to  acquire 
information,  failed  and  neglected  to  use  ordinary  diligence  in  remov- 
ing the  obstruction. 

Instruction  No.  i,  of  which  appellant  complains,  conforms  to 
this  view  of  the  law,  and  is  unobjectionable  in  its  phraseology.  It 
correctly  states  the  doctrine  as  to  contributory  negligence  in  a  case 
where  the  breach  of  duty  complained  of  is  negative  in  its  char- 
acter. It  is  not  pretended  that  the  city  was  an  active  agent  in  in- 
flicting the  injuries  sustained  by  appellant;  and  if  any  act  of  negli- 
gence upon  his  part  operated  as  the  immediate  cause  of  the  acci- 
dent, he  cannot  recover  from  the  city. 

Judgment  aMnned. 

W.  I.  Dudley,  for  appellant. 

John  T,  Harrison,  Carlisle  &  Foote,  for  appellee. 


John  Sanderson  and  Wife  v.  Susan  E.  Hays,  et  al. 

Lunatics — Conveyances. 

The  deed  of  a  lunatic  is  not  void  absolutely,  but  is  susceptible  of 
confirmation  by  the  lunatic  when  restored  to  sanity. 

APPEAL  FROM  KENTON  CHANCERY  COURT. 

February  6, 1875. 

« 

Opinion  by  Judge  Lindsay: 

The  testimony  establishes  very  clearly  that  prior  to  1844,  and  up 
to  and  after  1848,  and  in  fact  up  to  the  present  time,  the  mind  of 
Mrs.  Hays  was  and  has  all  the  while  been  seriously  impaired,  so 
much  so,  that  she  was  in  1844  and  in  1848  incapable  of  binding  her- 
self by  a  conveyance  of  her  land,  even  though  it  may  have  been 
executed  in  strict  conformity  to  the  statutes  regulating  the  mode  in 
which  conveyances  of  real  estate  shall  be  made  and  executed  by 
married  women. 

The  circumstances  all  tend  to  show  that  Wolfe,  the  original  pur- 

23 


354  Kentucky  Opinions. 

chaser,  was  cognizant  of  Mrs.  Hay's  condition  at  the  time  he  ac- 
cepted the  original,  and  also  when  he  procured  the  execution  of 
the  second  deed. 

This  case  does  not  conxe  within  the  rule  indicated  in  the  cases  of 
Breckenridge's  Heirs  v,  Ormsby,  i  J.  J.  Marsh.  236;  Shirleys  v. 
Taylor's  Heirs,  5  B.  Mon.  99,  and  Hopson  v,  Boyd,  6  B.  Mon.  296. 
In  the  first  of  these  cases  th^  alleged  lunatic  confirmed  his  deed  after 
he  had  been  restored  to  a  sound  mind,  and  the  most  that  the  court 
decided  was  that  a  conveyance  executed  by  an  insane  person  is  not 
void  absolutely,  but  is  susceptible  of  confirmation  by  the  lunatic 
when  restored  to  sanity. 

In  the  second  case,  a  replevin  bond  was  executed  by  a  party  who 
was  acting  as  the  agent  of  a  supposed  lunatic.  Upon  this  bond  an 
execution  was  sued  out  and  levied  upon  a  tract  of  land.  The  heirs 
of  the  lunatic  sought  to  set  aside  the  sale  made  under  this  levy 
upon  the  ground  of  their  ancestor's  lunacy.  The  court  held  that 
inasmuch  as  the  judgment  upon  which  the  first  execution  issued 
was  regular  and  valid,  that  the  replevy  was  for  the  benefit  of  the 
debtor ;  that  there  was  no  fraud,  oppression  or  unfairness  in  taking 
the  bond  or  in  making  the  sale ;  that  the  sale  of  the  land  was  nec- 
essary to  pay  an  honest  debt,  and  was  for  a  fair  price,  and  advan- 
tageous to  the  lunatic.  There  was  no  sufficient  reason  shown  for 
the  interposition  of  the  chancellor. 

In  the  third  case,  the  contract  was  free  from  fraud  and  unfair- 
ness, and  was  seemingly  advantageous  to  the  lunatic;  and  there- 
fore the  court  decided  that  it  should  be  upheld. 

In  the  case  under  consideration,  an  insane  married  woman  was 
induced  to  join  with  her  husband  in  conveying  away  her  patrimony. 
The  husband,  who  should  have  protected  the  wife's  interest,  re- 
ceived and  appropriated  the  whole  purchase  price.  The  sale  was 
not  intended  to  be  for  the  benefit  of  the  wife.  Nothing  whatever 
was  secured  to  her  out  of  the  price  paid  for  the  land,  and  there  is 
no  reason,  legal  or  moral,  why  she  shall  not  now  be  allowed  to 
avoid  a  transaction  which  was  a  fraud  upon  her  rights,  and  which 
operated  to  reduce  her  to  absolute  want. 

We  are  constrained  to  approve  the  judgment  of  the  chancellor. 

Judgment  afhrmed, 

Pryor  &  Chamber,  for  appellants, 
R,  D,  Handy,  for  appellee. 


J.  G.  Arnold,  et  al,,  v,  William  Maxwell,  et  al.       355 
J.  G.  Arnold,  et  al.,  v.  William  Maxwell,  et  al. 

Usury — ^Usury  Under  the  Form  of  Commissions. 

Interest  in  excess  of  ten  per  cent  is  usurious  and  cannot  be  re- 
covered. 

Usury  Under  the  Form  of  Commissions. 

Where  the  borrower  receives  less  than  the  face  of  the  loan,  and  is 
charged  commissions  and  attorney's  fees  for  negotiating  the  loan  by 
the  loanor,  and  for  extensions  of  time,  and  it  is  made  to  appear  that 
some  of  such  charges  are  in  fact  collected  as  interest,  they  will  be 
treated  as  usurious  and  cannot  be  recovered. 


APPEAL  FROM  KENTON  CIRCUIT  COURT. 

February  6,  1875. 

Opinion  by  Judge  Peters  : 

Conceding  that  the  money  loaned  was  Arnold's,  and  that  by  the 
contract  with  Foot  he  was  entitled  to  2  per  cent,  on  the  amount  for 
negotiating  the  loan,  still  it  is  obvious  that  a  greater  rate  of  interest 
than  10  per  cent,  per  annum  was  charged  for  the  loan  for  the  first 
and  second  year,  and  by  Sec.  5  of  an  act  entitled  "An  Act  to  amend 
Chap.  53  of  the  Revised  Statutes,  Title,  Interest  and  Usury,  ap- 
proved March  14,  187 1,  i  Sess.  Acts,  1871,  p.  62,'*  the  whole  inter- 
est was  forfeited. 

The  first  note  executed  for  the  money  borrowed  was  for  $1,300, 
bearing  6  per  cent,  on  its  face,  when  it  is  admitted  that  appellees 
got  only  $1,222.  So  they  paid  interest  on  $78  that  they  did  not 
get.  And  if  the  2  per  cent,  claimed  by  Foot  for  negotiating  the 
loan  be  allowed  as  proper,  still  they  paid  $52,  as  interest,  and  by 
paying  that  sum  in  advance,  it  exceeded  the  10  per  cent,  which 
might  have  been  legally  charged. 

The  mortgage  stipulated  for  the  payment  of  an  attorney's  fee  in 
case  suit  was  brought  for  a  foreclosure.  In  a  few  days  after  the 
first  note  matured,  suit  was  brought  to  foreclose  the  mortgage,  as 
was  to  be  expected  from  the  stipulation  to  pay  the  bounty  for  that 
service,  and  the  fee  was  claimed  therefor.  Then  a  second  charge 
is  made  for  negotiating  an  extension  of  time  for  payment  with 
Arnold,  and  a  fee  of  $25  was  paid  to  Foot  for  an  abstract  of  appel- 
lee's title  to  the  mortgaged  property.  The  transaction  presents  the 
appearance  of  a  device  to  procure  the  payment  of  interest  at  a 


356  Kentucky  Opinions. 

rate  greatly  in  excess  of  lo  per  cent  per  annum,  and,  to  say  the 
least  of  it,  bears  the  impress  of  hardship  and  oppression. 
The  judgment  must,  therefore,  be  affirmed. 

/.  G.  Carlisle,  for  appellants. 

Simmons  &  Schmidt,  Roberts,  for  appellees. 


Anderson  Dudley  v.  Commonwealth. 

Criminal  Law — Homicide — ^Instructions. 

Where  three  persons  are  jointly  indicted  for  murder,  and  in  the 
separate  trial  of  one  it  is  shown  that  he  was  present  at  the  killing, 
and  called  on  one  of  the  others  to  kill  the  deceased,  and  struck  him 
himself,  even  though  the  blow  of  the  other  perhaps  was  fatal,  he  is 
guilty  as  a  principal  and  the  court  correctly  refused  to  instruct  the 
jury  that  the  guilt  or  innocence  of  the  defendant  was  to  be  determined 
by  that  of  the  other  who  struck  the  fatal  blow. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

February  8,  1875. 

Opinion  by  Judge  Peters: 

Appellant  having  been  indicted  with  Henry  Henderson  and  Ki 
West  for  the  murder  of  Patrick  Riley,  was  in  a  separate  trial  found 
guilty  of  manslaughter  by  a  jury,  and  his  punishment  fixed  at  fif- 
teen years  confinement  in  the  state  prison.  The  court  below  having 
overruled  his  motion  for  a  new  trial,  and  rendered  judgment  in  con- 
formity to  the  verdict  of  the  jury,  he  has  appealed  to  this  court. 

The  learned  attorneys  for  appellant  insist  that  the  court  below, 
in  instructing  the  jury,  erred  in  failing  to  state  to  them  in  clear  and 
explicit  language  that  the  guilt  or  innocence  of  appellant  was  to 
be  determined  by  that  of  Henderson,  who  was,  according  to  their 
theory,  the  principal. 

All  three  of  the  persons  named  were  indicted  as  principals,  and  it 
is  clearly  and  satisfactorily  shown  by  the  evidence  that  appellant  was 
present  and  actively  participated  in  the  combat.  He  not  only  called 
on  Henderson,  who  perhaps  struck  the  fatal  blow,  to  kill  Riley,  but 
struck  him  with  a  stone  on  the  head  or  neck  himself,  so  that  if  the 
mortal  wound  was  not  inflicted  by  appellant's  own  hand,  it  was 
done  with  his  avowed  approval,  and  in  anticipation  of  his  own  pur- 
pose. Instruction  No.  3,  given  by  the  court  on  that  point,  was  as 
favorable  to  appellant  as  he  was  entitled  to  have  it.    And  after  a 


Mississippi  Cent.  R.  Co.  v.  D.  J.  Munchison.  357 

careful  examination  of  the  instructions  given  and  refused  by  the 
court  below,  we  have  been  unable  to  find  any  error  prejudicial  to 
appellant,  and  as  no  other  grounds  are  relied  upon  for  reversal 
except  the  refusal  of  instructions  asked  by  appellant,  and  the  giving 
of  some  objected  to  by  him,  the  judgment  must  be  affirmed, 

Morton  &  Parker,  Buford,  for  appellant. 
J.  W.  Rodman,  for  appellee. 


Mississippi  Central  Railroad  Company  v,  D.  J.  Munchison. 

Written  Contract — ^Defense  of  Fraud  in  Execution. 

Before  plaintiff  can  be  relieved  from  the  terms  of  a  written  contract 
he  must  aver  and  prove  facts  showing  his  right  to  such  relief.  A 
Judgment  rendered  in  his  favor  against  a  railroad  company  for  tres- 
pass will  be  reversed  when  not  sustained  by  evidence. 

appeal  from  FULTON  CIRCUIT  COURT. 

■ 

February  11,  1875. 

Opinion  by  Judge  Pryor  : 

The  appellee  admits  the  execution  of  the  writing  exhibited  in  the 
appellant's  answer,  by  which  the  former  relinquished  to  the  latter 
the  right  of  way  to  the  extent  of  one  hundred  feet  for  the  construc- 
tion of  its  railroad.  It  is  now  insisted  that  the  writing,  or  its  execu- 
tion, was  obtained  by  fraud  on  the  part  of  appellant's  agent;  and 
upon  this  issue,  the  jury,  from  the  facts  and  under  the  instructions 
given,  rendered  a  verdict  for  $1,000  damages. 

We  have  been  unable  to  discover  from  the  proof  either  fraud  or 
mistake  in  its  execution.  The  appellee  signed  the  relinquishment, 
or  rather  directed  the  agent  of  the  company  to  affix  his  name  to  it, 
after  it  had  been  fully  explained  to  him.  The  most  of  this  paper 
was  printed  matter,  containing  the  terms  and  extent  of  relinquish- 
ment, and  with  this  in  the  agent's  hands,  and  the  names  of  others 
affixed,  and  every  opportunity  afforded  appellee  to  know  what  he 
was  doing,  he  had  his  name  affixed,  and  now  says  that  he  only  re- 
linquished eight  feet  of  ground ;  and  not  only  so,  but  he  permits  the 
company  to  make  the  bed  of  the  road  through  his  entire  tract,  and 
when  completed  instituted  this  action  of  trespass  against  the  com- 
pany for  an  alleged  unlawful  entry  on  his  land. 

The  facts  are  so  inconsistent  with  appellee's  theory  of  the  case 


358  Kentucky  Opinions. 

that,  independent  of  the  positive  proof  on  the  part  of  the  appellant 
contained  in  the  writing  exhibited,  as  well  as  the  statements  of  the 
agent  and  those  who  heard  appellee's  talk  in  regard  to  what  he  had 
done,  there  would  be  much  hesitation  in  sustaining  such  a  verdict. 
If  the  company  has  directed  those  in  its  employ,  or  without  such 
direction,  if,  in  the  necessary  construction  of  the  work,  and  as  inci- 
dental to  it,  the  hands  of  the  company  have  injured  the  land  of 
appellant  outside  of  the  boundary  relinquished,  he  has  his  remedy. 
He  was  certainly  not  entitled  to  recover  for  any  trespass  within  the 
lOO  feet  for  an  injury  to  the  soil  within  this  boundary. 

The  judgment  is  reversed  and  cause  remanded  with  directions  to 
award  the  appellant  a  new  trial,  and  for  further  proceedings  con- 
sistent with  this  opinion. 

/.  Af.  Bigger,  for  appellant, 
H.  A.  Tyler,  for  appellee. 


City  of  Paducah  v.  L.  Y.  Craig. 

Damages  for  Killing  Dog — City  Ordinance. 

Where  a  city  ordinance  in  its  penal  provisions  provides  that  dogs 
unmuzzled  may  be  killed,  but  the  language  of  the  ordinance  is  such  as 
to  apply  only  to  the  dogs  of  persons  in  said  city,  and  does  not  in  terms 
apply  to  non-resident  owners,  the  city  will  be  liable  to  such  non-resi- 
dent owners  whose  dogs  are  killed  by  city  officers  under  such  ordi- 
nance. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

February  12,  1875. 

Opinion  by  Judge  Lindsay  : 

The  ordinance  under  which  the  city  of  Paducah  claims  that  it  had 
the  right  to  cause  the  dog  of  appellee  to  be  killed,  provides  that  the 
mayor  may,  in  his  discretion,  issue  a  proclamation  ordering  all  dogs 
running  at  large  within  the  corporate  limits  of  the  city  to  be  muz- 
zled, and  to  remain  muzzled  during  the  continuance  of  such  time  as 
the  mayor  may  prescribe.  It  then  provides  that  "all  persons  owning 
a  dog  or  dogs  in  said  city  failing  to  comply  with  the  provisions,  and 
permitting  his  dog  or  dogs  to  run  at  large  without  being  muzzled, 
the  city  marshal  or  any  policeman  is  authorized  to  kill  said  dog  or 
dog^."  It  is  evident  from  this  language  used,  that  the  penal  portion 
of  this  ordinance  is  confined  to  the  dogs  of  persons  in  said  city. 


Kelley  Sutton  v.  Willis  Hancock.  359 

It  does  not,  in  terms,  apply  to  dogs  owned  by  persons  living  out  of 
the  city,  and  as  it  inflicts  the  "death  penalty  without  due  process  of 
law"  its  application  will  not  be  extended  by  implication.  It  results 
therefrom,  as  the  answer  of  the  city  does  not  controvert  the  fact 
that  appellee  resides  outside  of  the  city  limits,  that  it  caused  and 
procured  his  dog  to  be  killed,  that  it  presented  no  defense  to  the 
action.  Every  material  averment  stood  uncontroverted,  and  the  only 
issue  to  be  tried  was  as  to  the  value  of  the  dog. 

Upon  that  issue  appellee  was  entitled  to  conclude  tlie  argument. 
The  court  did  not  err  in  giving  and  refusing  instructions,  and  we 
cannot  say  that  the  value  fixed  upon  the  dog  is  so  outrageous  as  to 
indicate  that  the  jury  was  influenced  in  their  action  by  passion  or 
prejudice. 

Judgment  ofRrmed. 

J.  Q,  A.  King,  for  appellant. 
L,  D,  Husbands,  for  appellee. 


Kelley  Sutton  zf.  Willis  Hancock. 

Mortgaged  Chattels— Removal — ^Attachment. 

The  removal,  concealment  or  sale  of  mortgaged  chattels  gives  the 
mortgagee  a  right  of  attachment  only  when  the  removal,  sale  or  con- 
cealment endangers  his  ultimate  security.  He  is  not  entitled  to  an 
attachment  when  enough  property  remains  to  amply  secure  him. 

APPEAL  PROM  HENDERSON  CIRCUIT  COURT. 

February  12,  1875. 

Opinion  by  Judge  Peters  : 

It  is  not  every  removal,  concealment,  or  sale  of  a  part  of  mort- 
gaged property  that  will  authorize  the  mortgagee  to  sue  out  an  at- 
tachment against  such  property.  It  is  only  "for  the  security  of  his 
rights,"  Sec.  273,  Civil  Code,  that  the  mortgagee  may  attach,  and 
unless  there  is  danger  that  so  much  of  the  mortgaged  property  will 
be  removed,  sold,  or  concealed  as  to  endanger  the  ultimate  security 
of  the  mortgage  debt,  he  is  not  justifiable  in  suing  out  an  at- 
tachment. 

It  does  not  appear  in  this  case  that  the  property  not  removed  was 


360  Kentucky  Opinions. 

not  amply  sufficient  to  secure  the  appellant's  debt,  and  for  that  rea- 
son, if  for  no  other,  the  court  properly  discharged  the  attachment. 
Wherefore  the  judgment  is  affirmed. 

S.  S.  Sizemore,  for  appellant, 
H.  T.  Turner,  for  appellee. 


J.  F.  Harris  v.  ].  G.  Hollovvings's  Ex'r. 

Usury — ^Pleading. 

It  is  not  necessary  that  a  defendant  plead  the  payment  of  usurious 
interest.  If  such  facts  are  made  to  appear  by  plaintiff's  statement 
they  are  sufficient,  and  defendant  is  entitled  to  credits  on  the  debt  to 
the  amount  of  such  usurious  payments. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

February  12,  1875. 

Opinion  by  Judge  Lindsay  : 

Appellee's  petition  and  exhibits  show  that  the  principal  sum 
($9,000)  was  by  the  contract  of  loaning  to  bear  interest  at  the  rate 
of  eight  per  cent,  per  annum.  The  payment  in  advance  of  the  first 
half  of  the  yearly  instalment  embraced  two  per  centum  of  usurious 
interest.  The  interests  Nos.  i,  2,  3  and  4  that  were  paid  at  matur- 
ity, each  embraced  two  per  centum  of  usury,  and  so  with  notes 
Nos.  5,  6,  7  and  8,  consolidated  into  the  note  for  $1,429.69,  bearing 
date  March  28,  1872.  Note  12  also  embraced  the  same  amount  of 
usury,  and  we  may  presume  from  the  petitions  that  Nos.  9,  10  and 
II,  each  of  which  was  so  tainted,  were  each  paid  off  in  full.  It  is 
manifest,  therefore,  that  if  the  usurious  interest  so  paid  had  been 
credited  on  the  principal  sum  at  the  date  of  such  judgment,  the 
judgment  against  appellant  would  have  been  for  a  much  smaller 
amount.  It  was  not  necessary  that  appellant  should  plead  the 
payment  of  usurious  interest,  and  ask  to  be  credited  by  them.  They 
each  and  all  appear  from  appellee's  statement  of  his  own  case. 

The  statute  in  force  in  1868,  when  the  contract  was  entered  into, 
provided  that  all  contracts  and  assurances,  made  directly  or  indi- 
rectly for  the  loan  or  forbearance  of  money  or  other  things,  at  a 
greater  rate  than  legal  interest,  should  be  void  for  the  excess.  The 
amount  loaned,  with  legal  interest,  may  be  recovered  on  any  such 
contract  or  assurance.    2  Rev.  Stats.  63.    This  is  the  limit  of  the 


Grover  &  Baker  Sewing  Mach.  Co.  v.  N.  A.  Gibson.     361 

power  of  the  courts  to  render  judgments  on  such  contracts,  and  they 
are  bound  to  refuse  to  exceed  such  limit,  when  the  facts  are  made 
to  appear;  and  it  is  immaterial  whether  they  are  presented  by  the 
plaintiff  or  the  defendant. 

In  law,  each  payment  of  usurious  interest  must  be  applied  to  the 
extinguishment  of  the  principal  debt,  and  as  appellee,  by  his  peti- 
tion, furnished  the  court  with  the  data  from  which  to  ascertain  the 
amount  legally  due  upon  the  contract,  it  was  error  to  give  judgment 
without  applying  the  proper  legal  credits. 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

Thomas  E.  Moss,  for  appellant. 
Henry  Burnett,  for  appellee. 


Grover  &  Barker  Sewing  Machine  Co.  v.  N.  A.  Gibson. 

Written  Contract — Admissibility  of  Evidence. 

The  consideration  for  the  execution  of  a  note  may  be  shown  by  oral 
testimony,  but  such  is  not  admissible  to  show  that  an  unconditional 
promise  to  pay,  reduced  to  writing,  was  not  to  be  performed  in  a  given 
state  of  case,  unless  fraud  in  reducing  the  contract  to  writing  is  al- 
leged and  proved. 

APPEAL  FROM  HENDERSON  CIRCUIT  COURT. 

February  13,  1875. 

Opinion  by  Judge  Lindsay  : 

Appellee  avers  that  the  consideration  for  the  note  sued  on  is  a 
sewing  machine,  and  the  promise  and  agreement  upon  th€  part  of 
the  agent  of  the  appellant  to  instruct  his  wife  in  the  art  and  mystery 
of  operating  the  machine.  He  avers  further  that  the  contract  was 
that  in  case  the  agent  failed  to  so  instruct  his  wife  within  six  months 
after  the  making  of  the  contract,  then  he  was  to  surrender  the  ma- 
chine and  receive  back  his  note. 

This  portion  of  his  answer  should  have  been  disregarded.  It  is 
an  attempt  to  add  to  a  written  contract,  without  an  averment  of 
fraud  or  mistake  in  reducing  it  to  writing.  The  consideration  for  the 
execution  of  a  promissory  note  may  be  shown  by  oral  testimony,  but 
it  is  not  allowable  to  show  by  such  testimony  that  an  unconditional 
promise  to  pay,  reduced  to  writing,  was  not  to  be  performed  in  a 


362  Kentucky  Opinions. 

given  state  of  case,  unless  fraud  or  mistake  in  reducing  the  contract 
to  writing  be  alleged  and  proved. 

Appellee  should  have  made  the  partial  failure  of  consideration 
complained  of,  a  counterclaim.  It  is  not  available  as  a  defense,  un- 
less it  be  so  relied  on.  The  court  erred  in  permitting  the  statements 
of  the  agent,  Wilson,  to  be  proved.  They  were  no  part  of  the  res 
gestce.  He  was  not  in  the  employ  of  the  company  when  the  state- 
ments purport  to  have  been  made,  and  they  were  proved  as  testi- 
mony in  chief,  and  not  for  the  purposes  of  impeaching  his  credibil- 
ity. Judgment  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

Thontas  E,  JVprd,  for  appellant. 


Thomas  Greer  v.  John  Warburton's  Ex'r,  et  au 


Judicial  Sale— Purchaser  of  Real  EtUte — ^BttoppeL 

One  who  buys  real  estate  subject  to  a  mortgage  cannot  remain  quiet 
during  a  sale  made  as  the  result  of  foreclosure  until  after  such  sale  is 
confirmed,  and  then  more  than  eight  years  after  an  innocent  pur- 
chaser has  possessed  it,  have  the  sale  set  aside  for  any  technical  rea- 
son, or  for  any  cause  which  from  the  records  he  knew  or  ought  to 
have  known  at  the  time  of  the  sale. 

APPEAL  PROM  KENTON  CIRCUIT  COURT. 

February  13,  1875. 

Opinion  by  Judge  Peters  : 

Appellant  purchased  from  Thompson  before  the  20th  of  June, 
1862,  the  day  on  which  the  judgment  was  rendered  foreclosing  the 
mortgage,  and  ordering  a  sale  of  a  sufficiency  of  the  property  to 
satisfy  the  debt.  Many  of  the  facts  relied  upon  in  the  numerous  pe- 
titions so  often  repeated  for  relief,  were  known  to  him  before  the 
final  judgment  was  rendered;  and  if  they  were  not  all  known  to 
him,  he  was  ignorant  of  them  from  a  failure  to  use  proper  and  rea- 
sonable diligence. 

He  purchased  a  part  of  the  property  sold  at  the  judicial  sale;  that 
sale  was  confirmed  more  than  three  months  afterwards  by  appel- 
lant's sanction,  as  must  be  presumed,  because  he  accepted  a  con- 
veyance of  the  property  purchased  by  him  at  that  sale,  and  the  same 
is  still  held  under  it. 

Perrin's  directions  to  the  master  as  to  the  manner  of  making  the 


Thomas  Grekr  v.  John  Warburton's  Ex'r,  et  al.         363 

sale,  were  conformabk  to  the  law  on  the  subject,  while  if  he  had 
pursued  those  proposed  by  appellant,  he  would  have  done  so  in  vio- 
lation of  law ;  but  even  if  it  were  not  so,  it  is  difficult  to  perceive 
how  appellant  is  prejudiced  thereby.  His  purchase  from  Thompson 
was  subject  to  the  mortgage  incumbrance ;  and  if  the  estates  sold  in 
Covington  had  brought  less  than  the  debt  for  which  it  was  mort- 
gaged, the  estate  in  Cincinnati,  which  was  also  mortgaged  to  secure 
the  same  debt,  must  have  been  sold,  but  as  a  part  only  of  the  Cov- 
ington property  was  sold  for  enough  to  pay  the  debt,  appellant  got 
under  his  purchase  from  Thompson  the  unsold  property  in  Coving- 
ton, and  the  house  and  lot  in  Cincinnati. 

As  to  the  unpropitious  time  for  making  the  sale  on  account  of  the 
depressed  prices  of  property  growing  out  of  the  war,  the  purchasers 
of  the  property  were  not  parties  to  the  suit,  and  they  were  not  in- 
strumental in  procuring  the  sale;  besides,  appellant  had  purchased 
from  Thompson  only  a  short  time  before  the  judgment  for  the  sale 
was  rendered.  He  made,  as  appears,  a  most  advantageous  pur- 
chase ;  and  it  may  be  that  he  would  not  be  willing,  on  account  of  the 
depressed  prices  then  growing  out  of  the  war,  to  give  up  his 
purchase. 

But  having  purchased  before  the  judgment  of  foreclosure  and  sale, 
and  having  notice  of  the  pendency  of  the  suit,  if  it  was  improper 
from  any  cause  to  make  the  sale,  he  should  have  asked  to  be  per- 
mitted to  come  into  the  suit,  and  then  make  his  objection ;  but  he 
stood  by  and  saw  the  sale  made,  and  the  purchases  confirmed  to  the 
best  and  highest  bidders,  without  exception  or  complaint  for  nearly 
eight  years  after  the  property  has  changed  owners,  and  perhaps  risen 
in  value  considerably,  and  then  seeks  to  increase  his  speculation  at 
the  expense  of  innocent  purchasers  for  value. 

Wallace,  the  commissioner,  proves  that  the  original  deed  or  mort- 
gage was  in  the  papers  of  the  suit  when  he  made  the  sale.  All  the 
objections  to  the  deed  on  account  of  interlineations  and  erasures 
were  known,  or  ought  to  have  been  known,  then  and  before  appel- 
lant made  his  purchase  in  Chicago.  '  He  resided  in  Covington,  the 
muniments  of  Thompson's  title  were  all  where  he  resided,  the  orig- 
inal mortgage  was  in  the  last-named  city  in  the  records  of  the  court. 
We  must  presume  that  before  he  made  the  purchase  he  examined 
into  his  vendor's  title,  and  made  himself  thoroughly  acquainted  with 
it ;  and  if  he  did  not,  he  should  not  be  permitted  to  throw  the  conse- 
quences of  his  own  laches  on  innocent  holders. 

Moreover,  it  is  not  and  cannot  be  controverted  that  Thompson 


364  Kentucky  Opinions. 

owed  the  debt  to  Warburton's  executors ;  when  or  under  what  cir- 
cumstances the  alterations  in  the  deed  complained  of  were  made,  is 
not  satisfactorily  shown.  The  preponderance  of  the  evidence  is  that 
the  deed  was  twice  acknowledged  by  the  grantors,  and  that  it  was 
acknowledged  in  the  condition  it  was  in  when  the  judgment  was 
rendered  for  a  foreclosure  of  the  mortgage. 

In  any  view  of  the  case,  therefore,  the  judgment  must  be  affirmed, 

Carlisle  &  Foote,  for  appellant. 
Benton  &  Benton,  for  appellees. 


W.  W.  HULINGS,  ET  AL.,  V,  H.  C.  McDoWELL,  ET  AL. 

Receiver's  Bond — ^Trust  Estate^Pleading. 

Before  persona  may  maintain  a  suit  against  a  receiver  and  his 
bondsman  they  must  aver  that  they  are  creditors,  and  also  that  the 
fund  sued  for  is  not  subject  to  the  jurisdiction  of  the  court  in  the  re- 
ceivership proceedings.  A  fund  being  administered  by  the  chancellor 
cannot  be  sued  for,  recovered  and  appropriated  in  another  suit  by  a 
portion  of  the  parties  to  whom  the  fund  belongs. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

February  15,  1875. 

Opinion  by  Judge  Cofer: 

It  appears  from  the  petition  in  this  case  that  prior  to  the  25th  of 
May,  1863,  George  E.  H.  and  Henry  W.  Gray  made  an  assignment 
of  their  property,  or  at  least  of  some  of  it,  to  Alfred  Harris,  in  trust 
for  their  creditors;  that  Harris  commenced  suit  in  equity  in  the 
Louisville  chancery  court  to  sell  some  or  all  of  the  trust  property, 
and  to  settle  the  trust.  In  that  case  judgment  was  rendered  to  sell 
a  lot  of  ground  embraced  in  the  assignment  or  deed  of  trust,  and  it 
was  accordingly  sold  on  the  25th  of  May,  1863,  for  the  sum  of  $900, 
and  two  bonds,  for  $450  each,  were  given  by  the  purchaser  for  the 
price,  both  of  which  were  collected  by  Thomas  P.  Smith,  late  re- 
ceiver of  the  chancery  court.  The  money  thus  collected  was  paid 
into  a  bank  designated  as  the  depository  for  funds  in  court.  It  was 
made  the  duty  of  the  receiver  to  enter  all  money  collected  by  him  as 
receiver  in  a  book  which  he  was  required  to  keep,  to  the  credit  of 
the  particular  case  to  which  the  money  belonged ;  but  Smith  failed 
to  enter  to  the  credit  of  the  case  of  Harris's  trustee  against  Gray's 


W.  W.  HULINGS,  ET  AL.,  Z/.  H.  C.  McDoWELL,  ET  AL.  365 

creditors,  the  sum  of  $481.20,  collected  July  21,  1864,  on  one  of  the 
bonds  given  for  the  price  of  the  lot. 

The  appellants  (plaintiffs)  also  allege  that  among  the  creditors  of 
said  George  E.  H.  and  Henry  Gray  were  A.  F.  Clark,  Jonathan 
Clark,  Willis  Frances,  and  Slaughter,  Carpenter  &  Co. ;  that  by  the 
last  report  of  the  ccxnmissioners  of  the  court  in  said  case  of  Harris's 
trustee,  which  was  approved,  there  was  due  and  owing  said  perscms, 
after  deducting  the  dividend  distributed  by  said  report,  the  follow- 
nig  sums,  to  wit:  to  A.  F.  Qark,  the  sum  of  $203.25,  to  Jonathan 
Clark,  the  sum  of  $646.20;  to  W.  Francis,  $247.39;  to  Slaughter, 
Carpenter  &  Co.,  $128.45,  ^^^  ^^lat  these  persons  had  all  assigned 
their  interest  in  said  cause  of  Harris's  trustee,  to  W.  W.  Hulings, 
one  of  the  plaintiffs,  and  that  all  of  said  sums  remain  due  and  wholly 
unpaid. 

It  is  then  averred  that  Smith,  as  receiver,  executed  a  bond  with  the 
appellees  and  some  others  as  his  sureties,  covenanting  that  he  would 
faithfully  discharge  all  the  duties  imposed  on  him  by  the  rules  of 
court ;  and  as  showing  a  breach  of  tliis  covenant,  it  is  further  averred 
that  Smith  failed  and  refused  to  make  the  proper  entries  of  the  col- 
lection of  the  aforesaid  sum  of  $481.20  on  the  proper  books  in  his 
office,  and  that  the  direct  inevitable  consequence  of  such  failure  was 
that  said  sum  of  $481.20,  which  should  have  been  distributed  among 
the  creditors  in  the  case  of  Harris's  trustee,  and  would  have  been  so 
done,  but  for  said  fraudulent  acts  of  said  Smith  as  receiver,  were 
paid  out  in  other  cases  in  which  said  Smith  had  collected  money  and 
appropriated  it  to  his  own  use;  that  said  Smith  fraudulently  failed 
to  enter  said  payment  of  $481.20,  for  the  purpose  of  using  the  same 
in  pa>*ment  of  claims  in  other  cases  in  which  he  was  a  defaulter. 

To  this  petition  the  sureties  of  Smith  answered,  setting  up  and 
relying  upon  certain  proceedings  had  in  the  Louisville  chancery 
court  in  reference  to  the  accounts  of  Smith  as  receiver;  and  they 
also  denied  that  they  had  any  knowledge  or  information  sufficient 
to  form  a  belief  that  the  persons  named  in  the  petition  as  such  arc 
or  were  creditors  of  George  E.  H.  and  H.  W.  Gray. 

The  plaintiffs  demurred  to  the  second  paragraph  of  the  answer, 
which  contained  both  the  matters  relied  upon  as  a  defense,  to  which 
we  have  first  adverted,  and  their  demurrer  having  been  overruled, 
they  elected  to  abide  by  it,  and  their  petition  was  dismissed  and  they 
have  appealed. 

The  only  questions  presented  in  argument  were  as  to  the  constitu- 
tionality and  effect  of  the  act  of  assembly,  under  which  the  proceed- 


366  Kentucky  Opinions. 

ings  relied  upon  in  bar  of  the  action  were  had ;  but  it  must  be  ap- 
parent that  if  the  petition  does  not  contain  a  statement  of  facts  con- 
stituting a  cause  of  action,  no  question  as  to  the  sufficiency  of  the 
answer  can  arise,  and  it  seems  to  us  equally  clear  that  if  that  part 
of  the  answer  demurred  to  contains  a  defense,  no  matter  whether  it 
be  the  particular  defense  intended  by  attorneys  to  be  reached  by  the 
demurrer  or  not,  that  the  order  overruling  the  demurrer  must  be 
affirmed. 

Unless  the  appellants  are  creditors  of  Grays,  they  do  not  claim  to 
have  a  cause  of  action  on  Smith's  bond,  and  hence  it  was  necessary 
that  they  should  allege  that  they  were  creditors ;  and  as  that  allega- 
tion was  a  material  one,  the  appellees  had  a  right  to  deny  it  if  they 
could ;  and  if  they  were  ignorant  of  the  facts,  they  were  not  bound 
either  to  deny  the  allegation  or  to  admit  that  it  was  true,  but  might 
deny  that  they  had  any  knowledge  or  information  sufficient  to  form 
a  belief,  whether  the  alleged  fact  was  true  or  not,  and  this  they  did. 

It  is  insisted,  however,  that  the  record  of  the  case  of  Harris's 
Trustee  v.  Grays  Creditors  would  have  shown  whether  the  allega- 
tion was  true  or  not,  and  as  that  record  was  accessible  to  the  ap- 
l>ellees,  it  was  their  duty  to  examine  it,  and  either  to  admit  or 
deny  the  allegation,  as  the  result  of  an  inspection  of  the  record  might 
warrant.  The  appellants  referred  to  the  record,  which  they  say 
will  show  that  they  arc  creditors,  and  made  it  a  part  of  their  petition, 
and  if  they  had  filed  a  copy  with  the  petition,  or  at  any  time  before 
the  appellees  filed  their  answer,  and  it  had  appeared  from  the  rec- 
ord that  appellants  were  creditors,  we  incline  to  the  opinion  that 
they  could  not  have  answered  by  simply  denying  any  knowledge  or 
information  as  to  a  fact  thus  conclusively  established.  But  if  this 
were  not  the  case,  we  are  still  of  the  opinion  that  the  petition  was 
insufficient. 

The  appellants  do  not  allege  that  they  are  the  only  creditors  of 
( jrays,  but  by  saying  that  among  the  creditors  were  certain  named 
persons,  they  show  that  there  were  other  creditors  besides  those 
named. 

It  does  not  appear  from  the  petition  what  were  the  terms  of  the 
assignment  made  by  Grays.  The  petition  therefore  failed  to  show 
that  the  appellants  were  damaged  one  cent  by  the  alleged  delin- 
quencies of  the  receiver. 

It  also  failed  on  other  grounds  to  show  a  cause  of  action.  It  does 
not  appear  whether  the  assignment  was  made  for  the  benefit  alike  of 
all  creditors  of  Grays.   For  all  that  is  alleged,  there  may  have  been 


WooLSwoRTu  Handle  Works  v.  S.  Littlefield.  367 

preferred  creditors  who  were  unpaid,  and  whose  debts  would  con- 
sume the  whole  fund,  and  in  that  case  the  appellants  had  no  intere3t 
m  It. 

Unless,  conceding  all  the  allegations  of  a  petition  to  be  true,  it  is 
certain  that  the  plaintiff  has  a  right  to  recover,  unless  defeated  by 
a  plea  of  confession  and  avoidance,  the  petition  is  insufficient.  An 
answer  by  the  appellees  that  there  were  other  creditors  who  were 
entitled  in  preference  to  the  appellants,  would  have  shown  that  they 
had  no  right  to  recover ;  and  yet  such  an  answer  would  neither  con- 
trovert any  fact  alleged  nor  confessed  and  would  avoid  the  appel- 
lants' case.  It  results  that  the  petition  was  defective  on  this  point. 

Another  objection  equally  fatal  to  the  appellants'  case  is,  that  it 
does  not  appear  but  that  the  suit  of  Harris's  trustee  against  the 
creditors  of  Grays,  still  pending,  and  the  fund  sued  for  are  still 
subject  to  the  orders  of  the  court  in  that  case,  and  it  would  be 
strange  indeed  if  a  fund,  being  administered  by  the  chancellor,  could 
be  sued  for,  recovered  and  appropriated  in  another  suit  by  a  portion 
of  the  parties  in  the  suit  to  which  the  fund  belongs. 

It  is  true,  as  a  general  proposition,  if  the  rule  is  not  universal, 
that  a  fund  in  the  hands  of  a  receiver  cannot  be  sued  for  without 
leave  of  the  court,  until  the  court  has  disposed  of  it  and  ordered  it 
to  be  paid  out. 

Other  objections  to  the  sufficiency  of  the  petition  exist,  but  it  is 
deemed  unnecessary  to  discuss  them. 

We  decline  to  express  an  opinion  as  to  either  the  constitutionality 
or  effect  of  the  act  of  assembly  referred  to,  because  there  is  no  ne- 
cessity for  it  in  this  case,  and  anything  we  might  say  on  that  subject 
would  be  extra-judicial,  and  for  the  further  reason  that  because  of 
the  sufficiency  of  the  second  paragraph  of  the  answer  taken  as  a 
whole,  and  because  of  the  insufficiency  of  the  petition,  we  would 
be  compelled  to  affirm  the  judgment  although  we  might  decide  the 
act  to  be  unconstitutional,  or  that  it  did  not,  if  constitutional,  operate 
to  bar  a  suit  on  the  receiver's  bond. 

Wlierefore  the  judgment  is  afhrnicd. 

Fred  B.  Cochran,  for  appellants. 

Mix  &  Boothc;  Barr,  Goodloe  &  Humphreys,  for  appellees. 


WooLswoRTH  Handle  Works  v.  S.  Littlefield. 

Principal  and  Agent — ^Evidence. 

The  statement  of  an  agent  that  he  is  acting  as  such  is  not  compe- 
tent to  prove  the  agency  unless  brought  home  to  the  principaL 


368  Kentucky  Opinions. 

APPEAL  FROM  LIVINGSTON  CIRCUIT  COURT. 

February  16,  1875. 

Opinion  by  Judge  Pryor  : 

The  evidence  before  the  jury  did  not  authorize  the  verdict.  There 
is  no  proof  showing  that  either  Hogg  or  Wanimer  had  authority 
from  appellant  to  assume  the  debt  due  or  owing  appellee  by  Hogg. 
The  statement  made  by  Hogg  that  he  was  the  agent  of  appellant  is 
incompetent  as  against  the  latter,  and  so  in  relation  to  Wanimer. 
The  power,  if  given  to  Wanimer,  conferred  upon  him  no  authority 
from  the  company  to  settle  this  debt ;  and  although  it  is  shown  that 
he  exhibited  another  letter  of  attorney  more  comprehensive  than  the 
one  found  in  the  record,  still  there  is  no  evidence  that  appellant  ever 
executed  it.  The  statement  of  an  agent  that  he  is  acting  as  such  is 
not  competent  to  prove  the  agency  unless  brought  home  to  the 
principal.  The  evidence  of  Chester  is  that  the  agent  had  no  such 
authority,  either  verbal  or  in  writing;  and  the  only  evidence  before 
the  jury  was  the  statements  of  parties  who  preferred  to  be  agents, 
with  an  entire  absence  of  proof  showing  that  any  such  agency 
existed,  except  such  as  is  to  be  found  in  the  paper  made  part  of  the 
record.  The  judgment  is  reversed,  and  cause  remanded  with  direc- 
tion to  award  the  appellant  a  new  trial,  and  for  further  proceedings 
consistent  with  the  opinion. 

W,  D,  Greer,  for  appellant. 


Isaac  Cooper,  et  al.,  v.  C.  F.  Thomas,  et  al. 

Damages — Measure  of  Damages— Exceptions. 

In  a  damage  suit  plaintiff  is  entitled  only  to  recover  for  damages 
sustained  prior  to  the  commencement  of  his  action. 

Measure  of  Damages. 

In  an  action  for  damages  for  injury  to  a  building,  the  plaintiff  is 
entitled  not  only  to  recover  the  cost  of  repairing  the  injury,  but  also 
for  any  diminution  in  the  value  of  the  use  of  the  property  resulting 
from  such  injury. 

Exceptions. 

To  be  available  on  appeal  an  exception  to  the  action  of  the  court  in 
giving  instructions  asked  for  by  appellees,  must  be  taken  at  the  time, 
and  not  after  the  motion  for  new  trial  had  been  overruled. 


Isaac  Cooper,  et  al.,  v.  C  F.  Thomas,  et  al.  369 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

February  18,  1875. 

Opinion  by  Judge  Cofer  : 

Even  if  the  refusal  of  the  court  to  strike  out  that  part  of  the 
petition  indicated  by  the  motion  of  appellants,  or  its  refusal  to  allow 
the  amended  answer  oifered  by  them  to  be  filed,  was  erroneous,  yet 
the  error  did  not  prejudice  their  rights,  or  prevent  them  from  hav- 
ing a  fair  trial.  The  court,  in  instructing  the  jury,  told  them  that 
they  could  not  find  for  the  appellees  except  for  damage  sustained 
prior  to  the  commencement  of  the  action. 

The  barrier  put  up  by  appellants  to  prevent  the  snow  and  ice 
from  falling  off  the  church  on  to  appellees'  house  was  not  erected 
until  after  the  commencement  of  the  action,  and  evidence  showing 
its  sufficiency  was  therefore  properly  rejected  as  irrelevant. 

The  appellants  failed  to  except  to  the  action  of  the  court  in  giving 
instructions  asked  for  by  the  appellees  until  after  their  motion  for 
a  new  trial  had  been  overruled. 

The  objection  made  by  appellants  to  the  giving  of  the  instructions 
is  not  sufficient,  because,  as  said  by  this  court  in  Poston  v.  Smith's 
Ex'r,  8  Bush  589,  it  "is  not  such  an  exception  as  is  required  by  the 
Code,  for  the  reason  that  no  exception  is  made  available  until  the 
court  renders  the  decision  upon  the  legal  question  involved,  and  then 
it  is  proper  to  make  the  exceptions."  The  same  distinction  was 
recognized  in  Cox  v.  Winston,  3  Met.  577. 

The  only  instruction  asked  by  the  appellants  and  refused  by  the 
court  was  properly  rejected.  It  required  the  jury,  before  they 
could  find  for  the  appellees,  to  believe  from  the  evidence  that  the 
injury  to  their  house  was  in  consequence  of  the  defective  construc- 
tion of  the  church  edifice,  and  it  restricted  the  recovery  to  the  cost 
of  putting  the  building  in  the  same  state  of  repair  it  was  in  before 
the  injury  occurred. 

It  was  immaterial  whether  the  falling  of  the  snow  and  ice  on  to 
appellees'  house  was  occasioned  by  defective  construction  or  not. 
No  matter  how  well  or  how  carefully  appellants'  church  may  have 
been  erected,  they  were  responsible  for  the  actual  damage  sustained 
by  th«  appellees  in  consequence  of  the  falling  of  large  bodies  of  snow 
or  ice  off  their  house,  on  to  the  house  of  their  neighbor. 

If  appellees  had  a  right  to  recover  anything,  they  had  not  only 
a  right  to  be  reimbursed  the  actual  cost  of  repairing  the  injury  done 
in  consequence  of  the  fall  of  snow  and  ice,  but  also  to  recover  for 

24 


370  Kentucky  Opinions. 

any  diminution  of  the  value  of  the  use  of  the  property,  resulting 
from  such  injury.  The  evidence  tended  to  prove  not  only  that  the 
value  of  the  use  was  actually  diminished  by  the  injury  done,  but  that 
it  was  also  diminished  by  the  impending  danger  during  the  whole  of 
the  winter  season. 

The  injuries  to  the  appellees'  property  were  of  that  character, 
which  it  is  the  peculiar  province  of  the  jury  to  estimate;  and  as  they 
not  only  heard  the  evidence  which  is  before  us,  but  made  two  visits 
to  the  buildings,  and  had  an  opportunity  to  judge  for  themselves  of 
the  nature  and  extent  of  the  damage  done,  we  cannot  say  that  their 
finding  was  exorbitant. 

Wherefore  the  judgment  is  affirmed. 

Benton  &  Benton,  M.  /.  Dudley,  for  appellants. 
Charles  Eginton,  for  appellees. 


McClei-lan  Manzey,  et  al.,  V,  William  H.  Girvin,  et  al. 

Decedents'  Estates — Property  Set  Off  to  Widow. 

Where  a  decedent  left  suvivlng  him  children  by  a  former  marriage, 
also  a  widow  and  children  by  her,  and  during  the  life  of  the  widow 
certain  personal  property  was  set  off  to  her  as  exempt,  and  the  widow 
then  died,  the  children  of  her  body  alone  were  entitled  to  such  prop- 
erty. 

APPEAIi  FROM  McLBAN  CIRCUIT  COURT. 

February  19,  1875. 

Opinion  by  Judge  Cofer  : 

Shelton  Manzey  died,  leaving  a  widow  and  two  infant  children 
residing  with  her,  and  also  three  adult  children  by  a  former  mar- 
riage. Certain  articles  of  property,  belonging  to  the  estate  of  the 
deceased  husband,  were  set  apart  by  the  appraisers  as  exempt  from 
distribution;  and  the  widow  having  died  shortly  thereafter  without 
having  disposed  of  the  property,  leaving  her  two  infant  children 
surviving  her,  and  the  oldest,  a  daughter,  having  married  since  her 
mother's  death,  she  and  her  husband,  and  all  of  the  daughters  of 
Shelton  Manzey  by  his  first  marriage,  brought  this  suit  against  the 
other  infant  child  of  Mrs.  Manzey,  and  the  other  children  of  said 
Shelton,  for  a  partition  of  the  property  which  had  been  set  apart 
by  the  appraisers  of  his  estate. 


Emily  Nelson,  et  al.,  v.  George  W.  Rose,  et  al.         371 

The  circuit  court  being  of  opinion  that  the  property  should  be 
treated  as  a  part  of  the  estate  of  Shelton  Manzey,  adjudged  that  his 
five  children  were  each  entitled  to  an  equal  share  thereof,  and  from 
that  judgment  the  infant  has  appealed,  and  his  coimsel  insists  that 
the  other  child,  who  was  an  infant  fit  the  death  of  her  mother,  hav- 
ing married,  he  is  now  entitled  to  the  whole  of  the  property. 

Both  Manzey  and  his  widow  died  before  the  General  Statutes 
went  into  effect,  and  the  rights  of  the  parties  in  this  case  must  be 
governed  by  the  provisidns  of  the  Revised  Statutes,  and  the  amend- 
ments thereto.  By  the  provisions  of  Sec.  11,  of  Chap.  30,  of  the  Re- 
vised Statutes,  the  property  directed  to  be  set  apart  to  the  widow  of 
an  intestate  vested  in  her,  for  the  use  and  benefit  of  herself  and  the 
infant  children  of  the  intestate  residing  with  her. 

Being  vested  with  the  title  to  the  property  for  the  use  and  benefit 
of  herself  and  infant  children,  Mrs.  Manzey,  no  doubt,  had  author- 
ity to  dispose  of  it,  but  not  having  done  so,  it  vested  at  her  death  in 
the  two  children  for  whose  benefit  she  held  it,  and  should  be  divided 
between  them  to  the  exclusion  of  the  other  children  of  her  husband. 

Wherefore  the  judgment  is  reversed,  and  the  cause  is  remanded 
with  directions  to  dismiss  the  petition  so  far  as  J.  T.  Girvin  and 
wife  are  concerned,  and  to  divide  the  property  set  apart  by  the  ap- 
praisers of  the  estate  of  Shelton  Manzey,  which  remained  in  pos- 
session of  the  widow  at  her  death,  equally  between  the  plaintiffs, 
W.  H.  Girvin  and  wife,  and  the  defendant,  McQellan  Manzey. 

/.  C  Jonson,  for  appellants. 


Emily  Nelson,  et  al.,  v,  George  W.  Rose,  et  al. 

Decedents'  Estates— Release  of  Claim  to  Defraud  Creditors— Dower. 

A  person  having  a  claim  against  an  estate  cannot  release  it  or  give 
it  away,  so  as  to  defeat  the  right  of  his  creditors. 

Dower* 

Before  si  Judgment  can  be  rendered  awarding  dower  to  the  widow, 
the  children  must  be  parties  to  such  action. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

February  20,  1875. 

Opinion  by  Judge  Gofer  : 

The  appellant,  Emily  Nelson,  has  no  legal  right  to  complain  that 


372  Kentucky  Opinions. 

the  debt  due  her  from  the  estate  of  her  husband  has  been  subjected 
to  the  pa)rment  of  her  debts  to  the  appellees.  If  the  fund  had  been 
released  by  her  to  her  children  she  has  no  longer  any-  legal  interest 
in  it ;  and  if  it  still  remains  hers  there  seems  to  be  no  reason  why  her 
creditors  should  not  subject  it  to  the  satisfaction  in  part  of  their 
debts. 

She  does  not  say  when  or  upon  what  consideration  she  abandoned 
her  claim  to  the  debt  due  her  from  the  estate,  and  we  cannot  concur 
with  her  counsel  that  she  had  a  right  voluntarily  to  surrender  the 
claim  to  her  children,  so  as  to  defeat  the  rights  of  her  creditors. 
Nor  can  we  perceive  any  legal  ground  upon  which  she  can  resist  the 
effort  of  her  creditors  to  subject  her  dower  interest  to  sale  to  satisfy 
their  judgments.  If  she  had  made  an  effectual  surrender  of  her 
dower  before  the  appellees  commenced  their  suit,  or  if  she  was  not 
entitled  to  dower,  she  is  not  prejudiced  by  the  judgment  subjecting 
it  to  sale.  The  children^  if  they  had  been  served  with  process,  might 
have  raised  the  question  whether  she  was  entitled  to  dower,  or  they 
might  have  shown  that  she  had  made  a  valid  surrender  of  her  dower 
to  them;  but  as  they  are  not  served  with  process,  they  are  not 
affected  by  the  judgment  subjecting  it  to  sale. 

But  they  were  necessary  parties,  and  should  have  been  brought 
before  the  court  before  a  judgment  was  rendered  to  allot  her  dower, 
for  this  is  a^  subject  in  which  they  have  a  joint  interest  with  their 
mother,  and  no  allotment  of  dower  can  be  legally  made  until  they  arc- 
brought  before  the  court.  Although  some  of  the  children  are  in- 
fants, and  not  having  been  before  the  court  below  cannot  appeal 
from  the  judgment  without  the  intervention  of  a  next  friend  in  this 
court,  which  has  not  been  had,  yet  there  is  enough  in  the  record  to 
show  one  of  them,  Matthews  Nelson,  is  an  adult,  and  as  he  is  an 
appellant,  and  had  a  right  to  be  before  the  court  before  an  order 
was  made  to  allot  dower  to  his  mother,  the  judgment  must  be  re- 
versed for  the  error  in  making  the  order  before  the  heirs  of  H.  L. 
Nelson  were  brought  before  the  court. 

So  many  of  the  heirs  as  were  twenty-one  years  of  age  on  Sep- 
tember 8,  1874,  the  date  at  which  the  record  was  filed  in  this  court, 
have  entered  their  appearance  and  need  not  be  served  with  process ; 
but  those  under  that  age  at  the  time  should  be  brought  before  the 
court,  and  they  should  be  allowed  to  present  any  defense  they  may 
have  to  the  action. 

We  perceive  no  error  in  the  judgment  against  Moore,  which  judg- 
ment is  affirmed.    But  the  order  directing  dower  to  be  allotted  is 


M.  G.  Pope  v.  John  Terry's  Ex'r  and  City  of  Louisville.        373 

reversed,  and  the  cause  is  remanded  for  further  proceedings  in  con- 
formity to  this  opinion. 

Weir  &  Son,  for  appellants. 


M.  G.  Pope  v.  John  Terry's  Ex'r  and  City  of  Lx)uisville. 

S.  C.  Hepburn  v.  Same. 

Highway— Street    Improvement — ^Assessment— Damages    to    Adjoining 
Property  by  Improvement. 

Where  a  grantor  conveys  to  a  turnpike  company  a  right  of  way,  the 
consideration  being  the  improvement  of  grantor's  property  by  the 
building  of  a  turnpike,  and  the  further  fact  that  grantors  should  be 
allowed  to  travel  thereon  without  paying  toll,  and  afterwards  said 
turnpike  becomes  a  city  street,  the  contract  between  the  grantor  and 
the  company  does  not  so  bind  the  public  as  to  exempt  her  heirs  and 
vendees  from  paying  assessments  for  improving  such  street. 

Damages. 

In  a  cross-petition  for  damages  against  the  contractor  and  city, 
where  it  is  not  averred  that  the  street  has  been  so  constructed  or  the 
work  so  done  as  to  cause  the  water  to  flow  over  her  lands,  no  cause 
of  action  is  stated. 

APPEAL  PROM  LOUISVILLE  CHANCERY  COURT. 

February  23,  1875. 

Opinion  by  Judge  Lindsay  : 

The  principal  ground  of  defense  relied  on  in  these  two  causes  is 
that  Baxter  avenue  is  not  a  "public  way"  within  the  meaning  of 
that  term  as  used  in  Sec.  12  of  the  city  charter.  It  certainly  is  a  road 
or  public  highway.  It  is  within  the  corporate  limits  of  the  city.  It 
is  by  the  express  language  of  said  section  subject  to  the  manage- 
ment and  control  of  the  city,  provided  the  right  to  manage  and 
control  it  can  be  exercised  without  an  invasion  of  some  private  right. 
The  purchase  from  the  turnpike  company  invested  the  city  with  the 
title  to  the  road  or  highway  as  against  that  corporation.  It  only 
remains  to  be  determined  whether  Merton's  heirs  have  any  such  in- 
terest in,  or  title  to  the  roadbed  as  precludes  the  city  government 
from  managing,  controlling  and  improving  said  avenue  pursuant 
to  the  provisions  of  the  city  charter. 

Mrs.  Caroline  H.  Preston,  by  deed  of  conveyance,  regularly  ex- 
ecuted and  delivered  on  March  26,  1832,  granted,  bargained  and 


374  Kentucky  Opinions. 

sold  to  the  Louisville  Turnpike  Company  "the  right  and  privilege 
and  fee"  to  the  strip  of  sixty,  feet  of  ground  upon  which  it  subse- 
quently constructed  its  road.  The  consideration  for  the  conveyance 
was  one  dollar  in  hand  paid  and  the  advantage  the  construction  of 
the  turnpike  road  would  be  to  the  grantor's  lands.  This  conveyance 
has  since  been  repeatedly  recognized  by  the  heirs  of  Mrs.  Preston, 
who  have  claimed  and  accepted  all  the  advantages  accruing  to  them 
from  the  conditions  of  the  grant,  including  that  of  an  alleged  oral 
agreement  that  they  should  be  allowed  to  pass  and  repass  upon  the 
road  without  the  payment  of  toll.  We  will  not  stop  to  inquire  as 
to  the  exact  nature  of  the  estate  the  company  acquired  in  the  road- 
bed by  virtue  of  this  conveyance.  It  certainly  did  acquire  for  the 
benefit  of  itself,  and  its  lawful  successors,  a  use  in  and  a  right  of 
way  over  the  land,  to  be  held  and  enjoyed  forever,  or  so  long  as 
the  use  or  right  of  way  should  be  devoted  to  the  purposes  of  a  public 
highway.  The  city  is  the  lawful  successor  of  the  turnpike  company. 
It  is  now  devoting  and  it  purposes  for  all  time  to  come  to  devote  the 
strip  of  ground  to  the  purpose  for  which  it  was  granted.  It  has 
merely  exercised  the  right  of  transforming  a  turnpike  road  into  a 
street,  over  which  Preston's  heirs  and  all  other  persons  are  allowed 
to  pass  without  the  payment  of  toll.  The  city,  in  the  exercise  of  an 
expressly  delegated  power,  purchased  from  the  turnpike  company 
its  use  in,  or  right  of  way  over  this  ground.  If  the  company  had  re- 
fused to  sell,  the  city  would  have  had  the  power  and  authority  to 
acquire  title  by  the  condemnation  of  such  estate  in  the  lands  as  was 
held  and  owned  by  the  turnpike  company.    Sec.  lo.  City  Charter. 

The  city  was  not  bound  to  purchase,  nor  would  it  have  been  com- 
pelled to  condemn  any  greater  estate  than  was  necessary  for  the 
accomplishment  of  its  ends.  A  use  in  the  lands  is  all  that  is  requisite, 
and,  therefore,  if  it  be  true,  as  matter  of  law  (a  question  which  ve 
do  not  decide),  that. the  fee  remains  in  Preston's  heirs,  still  the  city 
holds  such  an  estate  in  the  land  as  to  authorize  it  to  manage,  control 
and  improve  Baxter  avenue,  as  other  public  ways  are  managed, 
controlled  and  improved  under  the  provisions  of  its  charter.  The 
duty  imposed  upon  the  turnpike  company  by  the  12th  section  of 
its  act  of  incorporation,  of  keeping  its  road  in  repair,  was  intended 
for  the  public  good,  and  not  for  the  benefit  of  those  grantees,  who 
might  be  induced  to  grant  to  it  the  right  of  way.  The  city  has 
now  undertaken  the  performance  of  this  duty,  and  is  proposing  to 
provide  for  the  payment  of  the  expense  thereby  incurred  in  the 
manner  prescribed  by  the  12th  section  of  its  charter.    The  contract 


M.  G.  Pope  v,  John  Terry's  Ex'r  and  City  of  Louisville.        375 

between  the  turnpike  company  and  Mrs.  Preston  does  not  so  bind 
the  public  as  to  exempt  her  heirs  and  vendees  from  the  burdens  im- 
posed upon  property  holders  in  the  city  for  the  improvement,  re- 
constructing and  the  keeping  in  repair  the  public  streets  upon  which 
their  property  binds. 

So  soon  as  the  city,  in  the  exercise  of  its  power,  acquired  title  to 
the  turnpike  road,  and  converted  it  into  a  street,  every  person  own- 
ing real  property  constituting  part  of  any  quarter-square  binding  on 
such  street,  became  at  once  liable  to  be  assessed  for  the  cost  of  any 
improvement  that  the  city  might  deem  it  necessary  and  proper  to 
make  in  the  original  construction,  or  in  the  reconstruction  of  the 
new  public  way. 

Mrs.  Pope  made  her  answer  a  cross-petition  against  the  contractor 
and  the  city,  and  asked  a  judgment  for  damages  upon  an  alleged 
counterclaim  growing  out  of  the  manner  in  which  Baxter  avenue 
had  been  improved.  "She  says  that  plaintiff  making  the  improvement 
of  Baxter  avenue  so  constructed  it  so  that  all  of  the  surface  matter 
running  on  said  avenue  from  the  intersection  of  Broadway  and 
Baxter  avenue  south,  and  from  the  city  limits  north,  will  empty  into 
and  run  through  that  part  of  her  lot  which  lies  next  to  the  Newbury 
turnpike."  She  then  describes  the  manner  in  which  the  water  runs 
through  her  land,  the  difficulty  of  controlling  it,  and  her  inability 
to  protect  her  property  against  its  alleys.  She  claims  that  "she  has 
already  been  injured  at  least  $1,000  by  said  surface  water,  which  has 
been  thrown  upon  her  lands  as  aforesaid." 

Terry's  representatives  demurred  to  this  cross-petition  so  far  as 
it  sought  relief  against  them,  and  their  demurrer  was  sustained. 
The  city  answered,  and  upon  final  hearing  the  cross-action  against 
it  was  dismissed  without  prejudice.  The  cross-petition  as  to  Terry's 
executors  was  fatally  defective.  Although  it  is  alleged  that  the  im- 
provement was  so  constructed  as  that  the  surface  water  running 
from  the  intersection  of  Broadway  on  the  south,  and  the  city  limits  on 
the  north  "will  run  through"  Mrs.  Pope's  lands,  it  is  not  alleged  that 
the  street  has  been  so  constructed  or  the  work  so  done  as  to  cause 
the  water  to  flow  upon  her  lands.  The  cross-petition  does  not  show 
that  the  grade  of  the  turnpike  road  has  been  altered  so  as  to  change 
the  flow  or  increase  the  volume  of  the  surface  water,  nor  that  any- 
thing done  by  the  contractor  or  by  the  city  has  caused  one  drop  of 
water  to  flow  over  appellants'  land,  that  would  not  have  flowed  over 
it  if  the  work  had  not  been  done. 

Mrs.  Hepburn  sets  up  the  same  character  of  cross-action.     She 


376  Kentucky  Opinions. 

says  that  the  street  is  so  constructed  that  certain  surface  water  "will 
empty  into  and  run  across  her  aforesaid  land,"  to  her  great  damage, 
etc.,  and  that  the  improvement  now  causes  all  the  water  on  Baxter 
avenue  to  run  on  and  through  her  land.  Her  cross-petition,  like 
that  of  Mrs.  Pope,  is  defective,  and  the  demurrer  of  Terry's  ex- 
ecutors was  properly  sustained.  The  cross-actions  attempted  to 
be  asserted  against  the  city,  even  if  its  answers  cure  the  defects  in 
the  cross-petitions,  are  not  gennaine  to  these  proceedings.  Appel- 
lants do  not  set  up  a  state  of  facts  showing  that  they  have  joint 
causes  of  action  against  the  contractor  and  the  city;  therefore  a 
judgment  against  the  city  could  not  be  set  off  against  either  of  the 
contractor's  claims.  Besides,  the  proof  shows  that  if  either  appel- 
lant has  sustained  damage,  it  is  a  consequential  injury  resulting  from 
the  work  itself,  and  not  from  the  manner  of  its  execution.  It  shows 
further  that  if  any  such  damage  has  been  sustained,  it  results  in 
part  from  the  grading  and  passing  of  East  Broadway  street  in 
Henning's  and  Speed's  Highland  addition.  Neither  the  cross-pe- 
titions nor  the  proof  can  be  regarded  as  making  out  against  the  con- 
tractor a  claim  to  damages  in  behalf  of  either  of  appellants.  There 
is  still  another  reason  why  these  claims  should  not  have  been  as- 
serted in  these  actions.  They  are  for  unliquidated  damages,  which 
ought  in  all  cases  to  be  assessed  by  a  jury.  The  chancellor  should 
not  undertake  to  settle  such  questions  in  any  state  of  case  unless  they 
are  so  intimately  connected  with  the  subject-matter  of  the  main  issue 
that  he  cannot  avoid  doing  so. 

The  amendment  to  Sec.  125,  of  the  Civil  Code,  was  not  intended 
to  authorize  such  cross-actions  as  these  in  proceedings  in  equity. 
The  claims  asserted  by  the  cross-plaintiffs  against  their  co-defend- 
ants, do  not  necessarily  affect  the  actions  of  Terry's  executor,  and 
do  not  owe  their  existence  (if  they  do  exist)  exclusively  to  the  work 
done  and  performed  by  the  contractor.  We  do  not  regard  them  as 
the  proper  subjects  for  cross-actions,  under  the  circumstances  of 
these  cases. 

Without  expressing  an  opinion  as  to  the  sufficiency  in  law  of 
either  of  the  cross-petitions,  or  as  to  the  character  of  the  proof 
offered  to  sustain  them,  we  adjudge  that  their  dismission  without 
prejudice  does  not  so  injuriously  affect  the  substantial  rights  of  the 
appellants  as  to  authorize  the  reversal  of  the  judgments  complained 
of. 

Appellants  raise  no  material  issue  by  their  pleadings  except  the 
two  already  considered.    The  judgments  against  them  must,  there- 


William  Preston,  et  al.,  v.  Charles  Obst.  377 

fore,  be  affirmed  upon  their  appeals  as  to  Terry's  executors,  and  also 
as  to  the  city  of  Louisville. 

Barr,  Goodloe  &  Humphrey,  for  appellants, 
Caruth  &  Lieber,  Y.  L,  Bunnell,  for  appellees. 


William  Preston,  et  al.,  v.  Charles  Obst. 

Street  Assessments— City's  Exorbitant  Assessments^-Pleading  and  Proof. 
Private  property  cannot  be  confiscated  through  exorbitant  assess- 
ments, but  it  is  always  presumed  that  the  property  taxed  is  benefited 
at  least  to  the  extent  of  the  assessment,  and  the  taxpayer  resisting 
the  collection  on  this  ground  must  aver  and  prove  facts  showing  that 
his  property  is  not  so  benefited. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

February  23,  1875. 

Opinion  by  Judge  Lindsay  : 

The  first  objection  urged  to  appellee's  claim  is  that  the  ordinance 
provides  for  the  improvement  of  only  a  portion  of  the  alley.  Sec. 
12  of  the  city  charter  authorizes  public  ways  to  be  improved  "as  may 
be  prescribed  by  ordinance,"  and  there  is  no  limitation  upon  the 
power  of  the  general  council  to  designate  by  ordinance  what  part 
of  the  public  way  shall  be  improved. 

The  second  objection  urged  is  that  the  ordinance  or  resolution 
assessing  and  apportioning  the  cost  among  the  property  owners,  v/as 
erroneous,  because  the  tax  district  did  not  comprise  one-fourth  of  a 
square.  This  error  was  corrected  by  the  vice-chancellor ;  but  appel- 
lant insists  that  he  had  no  power  to  make  the  correction,  because  the 
apportionment  is  in  the  nature  of  a  legislative  act.  The  taxes  nec- 
essary to  pay  the  cost  of  a  street  improvement  are  not  imposed  by 
the  general  council  nor  the  courts.  The  legislative  enactment,  to 
which  the  municipality  owes  its  existence,  rewarded  by  any  mu- 
nicipal ordinance,  imposes  upon  the  property  owners  the  duty  of 
paying  their  proportions  of  the  expense  "incurred  in  making  an 
improvement,  when  it  has  been  made  pursuant  to  the  provisions 
of  the  city  charter."  Broadway  Baptist  Church,  et  al,,  v,  McAtec  & 
Casselly,  et  al,,  8  Bush  508.  In  apportioning  the  costs  among  the 
taxpayers,  the  general  council  ascertains  who  are  liable  to  pay  and 
the  amount  imposed  by  law  upon  each  person  who  is  liable.  The 
correction  of  the  apportionment  and  the  ascertainment  of  who  are 
legally  liable  to  the  tax,  are  the  performance  of  acts  ^uon- judicial 


378  Kentucky  Opinions. 

in  their  nature,  and  may  be  properly  performed  by  the  chancellor. 
In  the  Broadway  Baptist  Church  case,  the  apportionment  was  held  to 
be  a  ministerial  act,  subject  to  judicial  revision.  8  Bush  508.  The 
limits  of  the  tax  district  were  corrected  according  to  the  plan  in- 
dicated by  appellant's,  Preston's,  principal  witness,  and  redounded 
greatly  to  her  advantage.  We  regard  the  apportionment  as  correct, 
and  are  of  opinion  that  neither  of  the  appellants  can  complain  on 
account  of  the  action  of  the  chancellor  in  that  regard.  No  objection 
was  made  to  the  apportionment  of  the  assistant  engineer  as  a  special 
commissioner,  and  no  reason  personal  to  him  is  now  suggested  why 
this  report  should  not  have  been  confirmed  and  made  the  basis  of 
the  vice-chancellor's  apportionment. 

The  third  objection  is  that  a  personal  judgment  ought  not  to  have 
been  rendered,  and  that  no  interest  should  have  been  allowed.  The 
question  as  to  the  personal  liability  of  the  taxpayer  was  considered 
in  the  Baptist  church  case,  and  this  court  held  him  to  be  personally 
liable.  Under  the  peculiar  provisions  of  the  city  charter,  such  being 
the  case,  when  he  refuses  to  discharge  a  personal  liability,  he  has  no 
right  to  complain  at  being  required  to  pay  interest  from  the  date  of 
his  default. 

The  fourth  objection  is  that  the  assessment  is  so  exorbitant  as  to 
show  a  virtual  confiscation  of  Preston's  lots.  The  presumption,  in 
all  cases,  is  that  the  property  taxed  is  benefited,  at  least  to  the  extent 
of  the  assessment  against  it.  The  taxpayer,  resisting  the  payment  of 
his  tax  on  the  ground  that  it  is  not  so  benefited,  must  raise  the  issue 
by  his  answer.  .No  such  issue  is  raised  in  this  case.  Appellant 
Preston  insists  that  he  should  have  recovered  on  his  counterclaim. 
He  says  that  he  was  greatly  damaged  by  the  wrongful  acts  of  ap- 
pellee, which  consisted  in  his  entering  upon  appellant's  lots  adjoin- 
ing the  alley,  and  in  erecting  embankments  and  supports  for  the  fill 
constructed  in  the  alley,  and  in  leaving  on  said  adjoining  property 
great  quantities  of  earth.  At  most,  the  entry  upon  the  unoccupied 
lots  would  entitle  appellant  to  the  nominal  damages,  and  the  proof 
that  he  adduced  tends  to  show  that  the  placing  and  leaving  earth 
on  the  lots  was  an  advantage,  rather  than  an  injury,  to  them. 
Neither  of  the  appellants  prosecuting  an  appeal  on  this  record  are 
entitled  to  a  reversal.  Wherefore  the  judgment  against  Preston, 
Gross,  Schmitt,  Meyler  and  Eckstel  Kemper,  Bede  Kemper,  Litch, 
Otto,  Haag,  Vonseggen  &  Jefferson,  and  each  and  all,  are  affirmed, 

Barr,  Goodloe,  Humphreys,  for  appellants, 
Hanson,  M,  Grain,  for  appellee. 


Sallie  Duncan  v.  Mary  E.  Dorsey,  et  al.  379 

Sallie  Duncan  v,  Mary  E.  Dorsey,  et  al. 

Contracts  Made  with  Infants^Enf orcement. 

A  contract  made  with  an  infant  cannot  be  enforced  for  the  sale  of 
his  real  estate  by  proving  the  declarations  of  the  infant,  prior  to  his 
arriving  of  age,  to  the  effect  that  the  consideration  had  been  fully 
paid,  and  without  showing  that  the  contract  was  beneficial  or  that  the 
wants  of  the  infant  required  the  sale  to  be  made. 

APPEAL  FROM  HARDIN  CIRCUIT  COURT. 

February  23,  1875. 

Opinion  by  Judge  Pryor  : 

John  E.  Dorsey  being  one  of  the  parties  in  possession  of  the  prop- 
erty claimed  by  appellant,  and  a  defendant  to  the  action,  and  against 
whom  a  recovery  is  sought,  was  an  incompetent  witness ;  and  if 
competent,  the  whole  testimony,  when  considered,  did  not  authorize 
a  dismissal  of  the  action.  The  appellees  are  attempting  to  enforce 
this  contract  made  with  an  infant  for  the  sale  of  his  real  estate,  by 
proving  the  declarations  of  the  infant  prior  to  his  arriving  at  age, 
to  the  effect  that  the  consideration  had  been  fully  paid,  and  without 
showing  that  the  contract  was  beneficial,  or  that  the  wants  of  the 
mfant  required  that  the  sale  should  be  made ;  and  even  if  these  facts 
appeared,  the  chancellor  would  hesitate  before  determining  that 
under  such  circumstances  the  sale  by  the  infant  should  be  confirmed. 
The  guardian  of  the  infant  had  means  in  his  hands  at  the  time  this 
sale  was  made  sufficient  to  supply  all  his  demands,  and  he  seems  not 
to  have  been  consulted  as  to  the  propriety  of  making  the  sale. 

It  is  also  remarkable,  considering  the  testimony  of  John  Dorsey 
as  in  the  case,  that  all  these  payments  should  have  been  made  to  the 
father  of  the  appellant  when  he  was  imder  age,  and  the  chances 
taken  for  his  making  the  conveyance  after  arriving  at  his  majority, 
and  the  more  so  when  the  purchaser  failed  even  to  take  a  receipt  for 
the  payment,  when  he  assumes  to  have  paid  the  whole  amount.  Such 
proof  of  payment,  in  any  case,  would  be  regarded  with  suspicion, 
and  the  chancellor,  before  he  would  enforce  such  a  contract  made 
with  one  under  age,  must  have  evidence  more  satisfactory  than  is 
to  be  found  in  this  record,  both  as  to  payment  and  ratification.  The 
evidence  shows  conclusively  that  the  infant  obtained  a  horse  of  the 
value  of  $150.  This  amount  should  be  accounted  for. 

The  judgment  is  reversed  and  cause  remanded  with  directions  to 
adjudge  to  the  appellant,  and  her  mother,  also,  who  has  dower  in  the 


380  Kentucky  Opinions. 

same,  the  one  undivided  half  of  the  house  and  lot  in  controversy,  and 
requiring  the  parties  in  possession,  defendants  to  the  action,  to  ac- 
count for  the  rent,  whilst  they  have  had  possession  of  the  beneficial 
use  of  the  property,  allowing  them  such  sums  as  were  expended  in 
making  necessary  repairs,  if  any  were  required  to  preserve  the  prc^- 
erty  from  decay.  From  the  rents  will  be  deducted  the  sum  of  $150, 
with  interest  from  the  time  the  horse  was  received,  and  if  these 
rents  will  not  satisfy  the  same,  the  interest  of  the  infant  will  be  rented 
out  until  the  same  is  paid,  or  if  the  property  is  indivisible  the  whole 
property  can  be  sold  and  the  proceeds  divided  according  to  the 
rights  of  the  parties. 

The  judgment  is  reversed  and  cause  remanded  for  further  pro- 
ceedings consistent  with  this  opinion. 

Judge  Cofcr  not  sitting. 

W.  H.  Merriatt,  for  (Appellant. 


James  S.  Jackson,  et  al.,  v.  A.  J.  Graves,  et  al. 


Attachment  Bond — Damages — Malice— Measure  of  Damages. 

Punitive  damages  cannot  be  recovered  in  a  suit  on  an  attachment 
bond,  except  upon  proof  showing  that  obtaining  the  attachment  was 
malicious  and  without  probable  cause. 

Measure  of  Damages. 

Where  in  a  suit  on  an  attachment  bond  the  plaintiff  fails  to  show 
that  defendant  in  obtaining  the  attachment  acted  with  malice  and 
without  probable  cause,  but  where  the  attachment  was  dissolved  solely 
on  the  weight  of  the  evidence,  the  measure  of  damages  that  may  be 
recovered  is  the  damage  to  his  property  by  reason  of  the  seizure  or 
such  actual  damages  as  was  the  result  of  the  seizure. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

February  24,  1875. 

Opinion  by  Judge  Pryor  : 

It  is  manifest  from  the  evidence  that  the  original  action  instituted 
by  the  appellants  to  recover  of  the  appellees  damages  by  reason  of  an 
injury  to  appellants'  mill  and  dam,  was  not  induced  by  reason  of 
any  malice  on  the  part  of  appellants.  The  right  of  recovery  was 
only  defeated  by  a  preponderance  of  testimony  on  the  part  of  the 
appellees ;  and  the  testimony  was  so  equally  balanced  on  the  issue, 


James  S.  Jackson,  et  al.,  v.  A.  J.  Graves,  et  al.  381 

as  to  have  authorized  the  court  to  have  sustained  the  verdict,  if  ren- 
dered for  either  party.  It  is  not  every  failure  to  make  out  a  cause  of 
action  by  the  proof,  that  evidences  malice  on  the  part  of  the  plain- 
tiff ;  and  certainly  none  can  be  presumed  to  exist  where  the  right  to 
recover  is  made  manifest  by  the  witnesses  for  the  plaintiff,  and  the 
cause  of  action  defeated  only  by  the  weight  of  evidence  being  for 
the  defendant. 

The  only  issue  in  this  case  authorizing  punitive  damages  arises 
from  the  allegation  that  the  obtaining  of  the  attachment  was  ma- 
licious and  without  probable  cause.  It  is  not  pretended  that  a  re- 
covery is  sought  by  reason  of  any  malice  in  the  prosecution  of  the 
action;  and  it  was,  therefore,  error  to  have  instructed  the  jury  that 
the  plaintiffs  were  entitled  to  recover  the  extraordinary  costs,  in- 
cluding attorney's  fees,  expended  by  them  in  the  defense  of  the  orig- 
inal action  instituted  against  them  by  the  appellants.  They  were  en- 
titled to  recover  their  cost  in  the  defense  alone  of  the  attachment,  in 
the  event  of  proof  showing  malice  and  a  want  of  probable  cause. 

The  question  presented  by  this  record  is,  did  the  appellee  succeed 
in  establishing  malice  and  want  of  probable  cause  on  the  part  of 
appellants  in  obtaining  the  attachment?  If  the  appellants,  on  the 
trial  of  their  action,  having  given  such  evidence  of  their  right  to 
recover  as  would  preclude  the  idea  of  its  prosecution  without  cause, 
may  nevertheless  have  obtained  the  attachment  in  order  to  seek  and 
harass  the  appellees,  when  they  knew  that  no  grounds  existed  for 
adopting  this  summary  proceeding,  if  this  latter  conclusion  can  be 
arrived  at,  there  might  be  some  reason  for  sustaining  the  judgment 
of  the  court  below;  but  when  it  is  conceded,  as  it  must  be  in  this 
case,  that  the  action  was  prosecuted  in  good  faith  for  the  recover}' 
of  damages,  and  that  the  cause  of  action  was  fully  made  out  by 
appellants'  proof,  we  perceive  no  reason  why,  under  the  circum- 
stances, appellants  should  not  have  believed  that  it  was  necessary  to 
obtain  an  attachment  in  order  to  secure  whatever  judgment  they 
might  obtain.  The  testimony  of  one  of  the  appellees  is  to  the  effect 
that  no  malice  could  have  existed  on  the  part  of  appellants,  as  they 
were  entire  strangers  to  each  other. 

That  they  were  strangers  to  each  other,  and  the  appellants  were 
entirely  ignorant  as  to  the  pecuniary  condition  of  the  appellees,  ex- 
cept the  information  given  them  by  one  of  the  appellees  at  the  time 
the  attachment  was  levied,  clearly  appears.  The  appellees,  at  the 
time,  were  leaving,  or  about  to  take  from  the  county  and  state  all 
the  visible  property,  and  all  the  property  they  owned,  so  far  as 


382  Kentucky  Opinions. 

known  to  appellants,  for  the  purpose  of  selling  it.  They  had  no  other 
property  in  the  country,  and  appellants,  having,  as  they  supposed, 
a  cause  of  action  based  upon  the  testimony  of  those  who  were  not 
discredited  on  the  trial,  acted  as  prudent  men  would  have  acted  by 
obtaining  an  attachment  in  order  to  secure  their  claims.  A  delay 
on  their  part  in  prosecuting  an  inquiry  to  ascertain  the  solvency  of 
the  appellees  would  have  resulted,  if  they  were  entitled  to  a  judg- 
ment, in  their  losing  or  abandoning  their  claim  in  the  logs  that  were 
then  being  taken  from  the  state. 

It  does  appear  from  the  evidence  that  the  claim  asserted  was  for 
a  greater  sum  than  they  were  entitled  to  recover.  The  amount  of 
damage  sustained,  if  any,  was  then  unknown  to  the  appellants,  and 
in  instituting  their  claim  and  obtaining  an  attachment,  they  became 
liable  on  their  bond  to  pay  the  appellees  all  damages  they  might  sus- 
tain, in  the  event  their  action  was  wrongful.  That  the  attachment 
was  not  issued  for  good  cause  has  been  determined  by  the  verdict 
and  judgment  in  the  origpinal  action,  and  the  discharge  of  the  at- 
tachment. The  appellees  were  entitled  to  recover  such  damages  as 
they  sustained  by  reasons  of  the  attachment.  The  whole  record  of 
the  action  of  the  Jacksons  against  the  appellee  was  admitted  by  con- 
sent as  evidence  in  this  case ;  and  if  the  facts  elicited  on  that  trial 
had  been  offered  in  an  action  for  malicious  prosecution,  as  showing 
probable  cause,  there  would  be  no  doubt  but  what  the  defense  would 
have  been  complete.  The  presumption  must  arise  on  the  facts  in  this 
case  that  the  appellants  were  prosecuting  their  action  in  good 
faith,  and  there  is  no  evidence  on  the  part  of  appellees  rebutting  this 
presumption. 

It  cannot  be  said  in  this  case  that  there  is  an  entire  absence  of 
probable  cause,  and  that  malice  on  the  part  of  the  appellants  towards 
the  appellees  caused  them  to  have  the  attachment  issued ;  but  on  the 
contrary,  not  only  does  it  appear  that  the  claim  of  the  appellants 
was  sustained  by  three  or  four  witnesses,  and  perhaps  more,  but  that 
prior  to  obtaining  the  attachment  the  appellants  consulted  counsel, 
and  submitted  to  them  the  whole  facts  of  the  case,  and  upon  their 
advice  the  action  was  instituted  and  the  attachment  obtained.  There 
is  nothing  in  the  record  showing  that  this  proceeding  was  instituted 
in  bad  faith,  or  the  representations  made  to  counsel  untrue,  for  what 
appellants  stated  was  made  to  appear  by  the  testimony  heard  upon 
the  trial;  and  although  this  testimony  sustained  the  issue  made,  it 
was  adjudged  to  be  more  than  counterbalanced  by  that  of  his  ad- 
versaries. The  facts  were  such  that  if  the  jury  had  rendered  a  ver- 


James  S.  Jackson,  et  al.,  v.  A.  J.  Graves,  et  al.         383 

diet  for  the  appellants,  the  attachment  would  have  been  sustained, 
the  whole  facts  presenting  a  case  where  the  plaintiffs  have  failed  to 
succeed,  not  for  the  want  of  proof  to  sustain  his  claim,  but  for  the 
reason  that  the  testimony  of  the  defendant  preponderated  over  that 
of  the  plaintiff;  and  failing  in  his  action,  the  attachment  was  dis- 
charged. The  appellees  failed  to  show  a  want  of  probable  cause, 
whilst  the  appellants  established  its  existence. 

For  this  reason,  our  instruction  should  have  been  given  excluding 
the  consideration  of  the  issue  made  by  the  original  petition  and  an- 
swer from  the  jury.  The  question  of  probable  cause  is  more  a  ques- 
tion of  law  than  of  fact ;  and  where  one  is  acting  on  the  information 
of  others,  as  in  this  case,  when  bringing  an  action  or  obtaining  legal 
process,  and  is  attempted  to  be  made  liable  for  a  malicious  prosecu- 
tion, and  the  facts  are  such  as  the  case  should  go  to  the  jury,  the 
jury  should  be  instructed  "that  they  are  bound  to  presume  that  the 
defendant  believed  in  the  truth  of  the  information  on  which  he  acted, 
unless  it  clearly  appears  from  the  evidence  that  this  evidence  was 
false,  and  that  the  defendant  knew  it  to  be  so.  i  Hilliard  on  Tort 
461. 

There  is  no  conspiracy  or  combination  alleged  to  exist  between 
appellants  and  their  witnesses  to  injure  the  appellees  or  their  prop- 
erty ;  and  if  this  action  can  be  maintained  upon  the  proof  offered 
to  sustain  the  allegation  of  malice  and  want  of  probable  cause,  or 
even  the  want  of  probable  cause  alone,  the  result  would  be  that  this 
cause  of  action  would  arise  in  every  case  when  a  party  proved  to  be 
unsuccessful  in  his  action,  and  his  attachment  for  that  reason  dis- 
charged. The  amended  petition  filed  by  appellees  presents  the  only 
cause  of  action  in  this  record  for  which  a  recovery  can  be  had.  All 
the  appellees  can  recover  under  it  is  the  damages  to  their  logs  by 
reason  of  the  seizure  or  such  actual  damages  as  was  the  result  ot 
the  seizure.  Mitchell  v.  Mattingly,  i  Met.  237.  If  the  logs  could 
not  be  sold  by  reason  of  the  delay  caused  by  the  seizure,  and  they 
declined  in  value,  the  difference  would  be  the  value  of  the  logs  when 
seized  and  what  they  could  have  been  sold  for,  including  the  cost  of 
caring  for  them. 

For  the  reasons  indicated  the  judgment  is  reversed,  and  cause 
remanded  with  directions  to  award  the  appellants  a  new  trial,  and 
for  further  proceedings  consistent  with  the  opinions. 

Sweeney  &  Stuart,  Taylor,  for  appellants. 
Williams  &  Brown,  for  appellees. 


384  Kentucky  Opinions. 

John  Cassell's  Heirs  v,  A.  Gazello's  Ex'r. 

Statute  of  Limitations — ^New  Promise. 

There  can  be  no  recovery  upon  a  debt  upon  a  new  acknowledgment 
of  indebtedness  after  the  debt  has  been  barred  by  the  statute  of  lim- 
itations; but  the  moral  obligation  to  pay  the  debt  will  furnish  the 
consideration  of  a  new  promise. 

APPBAL  FROM  LOUISVILL.B  CHANCERY  COURT. 

February  24,  1875. 

Opinion  by  Judge  Peters  : 

The  court  has  read  more  than  once  the  ingenious  and  plausible 
petition  presented  by  counsel  for  appellants  for  a  re-hearing,  in 
which  it  is  insisted  that  th«  acknowledgment  of  Cassell  of  his  in- 
debtedness to  Gazello  is  not  made  to  the  latter,  and  there  is  no  prom- 
ise to  him  to  pay  the  debt  proved. 

Counsel  do  not  make  distinction  between  a  demand  actually  barred 
at  the  time  the  acknowledgment  is  made,  and  the  acknowfledgment  of 
a  subsisting  debt  at  the  time. 

In  Bell  V.  Rowland's  Adm'rs,  Hard.  301,  the  earliest  case  in  which 
the  court  entered  upon  a  discussion  of  the  statute  of  limitations,  and 
reviewed  the  English  and  Virginia  authorities  on  the  subject, 
adopted  the  rule  that  in  order  to  take  the  case  out  of  the  statute  of 
limitations,  an  express  acknowledgment  of  the  debt,  as  a  debt  due  at 
the  time  (coupled  with  the  original  consideration),  or  an  express 
promise  to  pay  it,  must  be  proved  to  have  been  made  within  the  time 
prescribed  by  the  statute;  and  that  rule  has  been  adhered  to  from 
that  time  to  this  in  similar  cases. 

In  Harrison  v.  Handley,  i  Bibb  443,  the  rule  adopted  in  Bell  v. 
Rowland's  Adm'rs,  supra,  is  approved,  and  the  court  then  said: 
"Where  the  limitation  has  run,  to  get  clear  of  it  the  whole  burden 
of  proof  is  thrown  on  the  plaintiff  to  prove  a  good  and  subsisting 
debt,  and  a  promise  to  pay,  within  the  period  prescribed  to  his  ac- 
tion," showing  conclusively  that  the  rule  prescribed  is  applicable 
alone  to  cases  where  the  bar  is  complete. 

In  Head's  Ex'r  and  Ex'x  v.  Manner's  Adm'rs,  5  J.  J.  Marsh.  255, 
this  court,  Chief  Justice  Robertson  delivering  the  opinion,  gave  the 
reason  for  the  rule.    He  says: 

"After  the  debt  had  been  barred  by  time,  the  debtor,  by  pleading 
the  statute,  can  prevent  a  judgment  against  him  on  the  original  con- 
tract.   The  contract  is  then  dead.    It  can  never  be  revived.    The 


James  Miles  v.  Commonwealth.  385 

debt,  so  far  as  it  was  merely  legal,  is  extinguished.  But  as  there 
may  be  a  moral  obligation  to  pay,  the  debt,  not  the  original  contract, 
may  be  revived  by  a  new  contract  based  on  this  moral  consideration." 

All  the  authorities  to  which  we  have  been  referred  are  cases  to 
which  the  statutes  have  attached,  in  the  language  of  Judge  Trimble, 
and  we  are  not  aware  of  any  case  in  which  the  rule  has  been  applied 
where  the  origpinal  cause  of  action  was  not  barred. 

Under  the  old  system  of  pleading  to  a  plea  of  the  statute  of  limi- 
tations, the  plaintiff  could  by  replication,  traverse  the  plea ;  or  if  the 
original  cause  of  action  was  barred,  he  could  avoid  the  effect  of  the 
plea  by  alleging  an  express  promise  to  pay  within  five  years  from 
the  commencement  of  the  action. 

In  Trousdale's  AdmW  v,  Anderson,  9  Bush  276,  it  is  said :  "When 
the  right  to  recover  upon  the  original  contract  is  barred  by  the  stat- 
ute of  limitatioas,  and  there  has  been  a  new  promise  to  avoid  this 
statutory  bar,  it  constitutes  a  different  cause  of  action,  and  upon 
which  the  action  must  be  brought."  And  in  such  a  case  the  new 
promise  must  be  made,  not  to  a  stranger,  but  to  the  creditor  or  some 
one  acting  for  him,  and  upon  which  the  creditor  is  to  act  and  confide. 

The  limit  of  the  rule  is  to  that  class  of  cases  where  the  debt  was 
barred;  if  the  rule  is  applicable  to  debts  that  are  not  barred,  it  is 
strange  that  it  cannot,  or  has  not  been  sustained  by  the  product'ou 
of  or  reference  to  some  adjudicated  case. 

The  petition  is  overruled. 

Allen  &  Allen,  for  appellants, 
Twyman,  for  appellee. 


James  Miles  z/.  Commonwealth. 

Criminal  Law — Indictment. 

An  indictment  for  executing  a  forged  note  is  fatally  defective,  when 
it  fails  to  allege  that  the  note  was  not  a  genuine  note,  or  that  the 
accused  knew  it  to  have  been  a  forgery. 


APPEAL  FROM  CAMPBELL  CIRCUIT  COURT. 

February  25,  1875. 

Opinion  by  Judge  Pryor  : 

The  indictment  is  fatally  defective.    There  is  no  allegation  or  state- 
ment that  the  note  executed  on  September  13,   1871,  was  not  a 
25 


386  Kentucky  Opinions. 

genuine  note,  or  that  the  accused  knew  it  to  have  been  a  forgery 
when  he  exchanged  it  for  the  note  originally  given.  It  is  stated,  by 
way  of  inducement,  etc.,  that  the  accused  falsely  represented  the 
note  to  be  a  year  issue  note,  but  it  nowhere  appears  by  any  allega- 
tion that  it  was  not  such  a  note  as  the  appellant  represented  it  to  be. 
The  facts  alleged,  if  conceded  to  exist,  constitute  no  public  offense, 
and  the  motion  to  arrest  the  judgment  should  have  been  sustained. 
The  judgment  is  reversed  and  cause  remanded  with  directions  to 
award  the  appellant  a  new  trial,  and  for  further  proceedings  consist- 
ent with  the  opinion. 

John  S.  Ducker,  for  appellant. 
/.  Rodman,  for  appellee. 


John  W.  Kidwell,  et  al.,  v,  R.  T.  Houston. 

Real  Estate— Conveyance— Courses,  Distances  and  Monuments. 

Where  a  boundary  line  is  to  be  determined  between  two  land  own- 
ers, courses  and  distances  called  for  in  the  deed  must  yield  to  monu- 
ments or  local  objects  called  for  in  the  description. 

APPEAL  FROM  PENDLETON  CIRCUIT  COURT. 

February  26,  1875. 

Opinion  by  Judge  Cofer: 

The  appellee  claims  title  to  the  land  in  contest  in  this  case  under 
a  deed  from  Daniel  Coleman  to  John  Montjoy,  dated  July  4,  1792, 
and  the  appellants  claim  it  under  a  deed  from  James  Coleman,  one 
of  the  heirs  of  Daniel  Coleman,  to  Alvin  Montjoy,  bearing  date  in 
1825. 

The  circuit  court  decided  that  neither  party  had  shown  an  avail- 
able paper  title,  and  we  concur  in  that  decision.  John  Montjoy 
entered  under  his  deed  claiming  to  the  boundary  thereof  long  be- 
fore Alvin  purchased,  and  was,  therefore,  in  constructive  possession 
to  the  extent  of  his  boundary,  and  as  neither  party  was  able  to  show 
an  actual  possession  of  the  locus  in  quo  until  the  appellants  entered 
thereon,  within  less  than  fifteen  years  before  this  action  was  com- 
menced, the  controversy  had  to  be  decided  by  ascertaining  the  true 
boundary  of  the  deed  to  John  Montjoy,  up  to  which  his  constructive 
possession  extended,  in  virtue  of  his  occupancy  within  the  boundary 
of  his  deed. 


John  W.  Kidwell,  et  au,  v.  R.  T.  Houston.  387 

The  deed  call  is  to  run  from  the  itiouth  of  little  Kincade  creek 
'*N.  15  degrees,  E.  380  poles,  to  a  stake  in  the  line  of  Coleman  Good- 
win, and  thence  S.  86  degrees,  W.  485  poles,  to  two  lynns"  near 
Licking  river.  The  land  of  Coleman  Goodwin  is  conceded  by  all  to 
lie  south  of  that  conveyed  to  John  Montjoy ;  and  it  is  also  clear  from 
the  evidence  that  the  north  line  of  Goodwin  and  the  south  line  of 
Montjoy  run  together  a  part  of  the  distance  of  each.  The  evidence 
tended  to  prove  that  Goodwin's  east  line  runs  N.  30  degrees  W.,  and 
if  continued  wpuld  run  to  the  mouth  of  little  Kincade  creek,  where 
John  Montjoy's  east  line  begins,  and  that  Goodwin  never  had  a 
line  east  of  the  point  claimed  by  the  appellants  as  their  northeast 
corner.  As  John  Montjoy's  deed  calls  for  a  stake  in  Goodwin's 
line,  the  course  called  for  in  his  deed  must  yield,  if  necessary  to 
reach  that  line,  unless  the  line  as  actually  run  to  Mountjoy  was  lo- 
cated at  some  other  place.  If  Goodwin's  northeast  corner  is  where 
appellants  clscim  it  to  be,  then,  nothing  else  appearing,  John  Mont- 
joy's  line  cannot  run  east  of  that  corner,  and  the  course  called  for  in 
his  deed  must  yield  to  the  local  object  called  for,  to  wit,  a  point  in 
Goodwin's  line. 

The  jury  should,  therefore,  have  been  told,  in  effect,  upon  this 
point  in  the  case,  that  the  true  line  of  John  Montjoy  ran  from  the 
mouth  of  the  creek  to  a  point  not  further  east  than  Goodwin's  north- 
east comer,  and  that  unkss  the  appellants  were  in  possession  of 
land  on  the  west  side  of  a  straight  line  from  the  mouth  of  the 
creek  to  Goodwin's  northeast  comer,  they  should  find  for  them,  un- 
less they  believed  from  the  evidence  that  the  line  when  originally 
run  was  actually  surveyed  at  some  other  place,  in  which  event  they 
would  find  such  actual  location  to  be  the  true  line ;  and  if  appellants 
were  in  possession  of  land  west  of  that  line  and  north  of  Goodwin's 
corner,  they  should,  as  to  that,  find  for  the  plaintiff. 

The  instructions  given,  especially  the  first  asked  for  by  the  ap- 
pellee, did  not  conform  to  this  view  of  the  law.  In  that  instruction 
the  jury  were  told,  in  effect,  that  if  the  deed  to  John  Montjoy  cov- 
ered the  land,  they  must  find  for  the  plaintiff.  This  was  misleading. 
No  one  disputed  that  to  run  by  its  calls  the  deed  would  embrace  the 
land ;  and  when  told  that  if  the  deed  covered  the  land  they  should 
find  for  the  appellee,  the  jury  may  have  taken  the  instruction  to 
mean  what  its  language,  taken  literally,  imported,  and  especially 
so  in  view  of  the  refusal  of  the  court  to  give  the  instmction  asked  for 
on  this  point  by  the  appellants. 

This  error  was  not  cured  by  the  fifth  instruction  given  by  the 


388  Kentucky  Opinions. 

court.  The  evidence  failed  to  disclose  any  monuments  on  the  ground, 
which  are  called  for  in  the  deed,  but  there  was  evidence  tending  to 
show  ancient  marks  on  the  line  S.  30  degrees  E. ;  and  instead  of 
telling  the  jury  that  they  should  "regard  the  marks  and  monuments 
upon  the  ground  rather  than  the  courses  and  distances  called  for  in 
deeds  and  other  writings,"  they  should  have  been  told  as  before 
indicated  that  the  line  as  originally  run  was  the  true  line,  and  that  if 
run  at  a  place  different  from  that  indicated  by  the  course  called  for, 
the  latter  must  yield. 

The  instruction  asked  by  the  appellants  was  substantially  correct, 
and  although  not  as  explicit  as  it  might  have  been,  should  have  been 
given.  For  the  errors  indicated  the  judgment  is  reversed,  and  the 
cause  is  remanded  for  a  new  trial  upon  principles  not  inconsistent 
with  this  opinion. 

W.  IV.  Ireland,  A.  /.  James,  for  appellants. 

J.  W.  Memies,  J.  N.  Furber,  A.  Duvall,  for  appellee. 


J.  L.  ClEMMONS  v.  J.  S.  CONNELL,  ET  AL. 

Mortgages— Junior  Incumbrancer — ^Attomey's  Fees. 

Where  attorney's  fees  are  claimed  by  a  mortgagee  in  a  suit  to  fore- 
close his  mortgage,  a  junior  incumbrancer  may,  by  pleading  and  proof, 
object  to  the  attorney's  fees  and  have  the  court  to  pass  upon  the  same. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT. 

February  26,  1876. 

Opinion  by  Judge  Cofer  : 

We  cannot  concur  with  counsel  that  the  appellant  had  no  oppor- 
tunity to  interpose  objections  to  the  attorney's  fees  claimed  by  the 
mortgagees,  until  the  court  came  to  render  judgment  in  the  case. 

He  might  have  done  so  either  by  his  original  petition,  by  an 
amended  petition,  or  by  a  reply ;  for  although  the  answers  and  cross- 
petitions  sought  no  relief  against  him  personally,  they  affected  his 
interest  as  a  junior  incumbrancer;  and  he  might  have  set  up  any 
defense  that  existed  in  favor  of  the  mortgagor,  and  if  he  meant  to 
resist  the  claim  for  attorney's  fees  should  have  done  so  by  plea,  and 
would  then  have  been  entitled  to  be  relieved  against  those  claims, 
unless  some  sufficient  equitable  reason  for  denying  such  relief  could 
have  been  shown. 


E.  L.  Cantrill  v.  J.  C.  Poc«,  et  al.  389 

This  court  has  never  held  that  such  agreements  are  void,  but 
simply  that  they  will  be  relieved  against  as  imposing  a  penalty  on 
the  debtor  for  default  in  paying  his  debt,  and,  being  regarded  as  a 
penalty,  may  be  relieved  against  in  the  same  manner  and  upon  the 
same  principles  upon  which  relief  will  be  given  against  other  pen- 
alties of  a  like  character. 

Petition  overruled. 

Cletmnons  &  Willis,  for  appellant. 
Caldwell  &  Harwood,  for  appellees. 


E.  L.  Cantrill  v.  J.  C.  Poor,  et  al. 

Appeal  Bond— -Clerical  Errors  in  Appeal  Bond. 

Where  an  appeal  bond  Is  styled  ''Appeal  from  a  judgment  of  T.  R. 
Barnett,  Judge^  Green  quarterly  court,"  but  it  is  recited  in  the  body 
of  the  bond  that  it  is  taken  from  the  judgment  of  the  Green  county 
court,  a  mere  omission  by  the  draftsman,  it  is  held  that  a  recovery 
may  be  had  on  such  bond,  notwithstanding  such  defect. 

APPEAL  FROM  GREEN  CIRCUIT  COURT. 

February  27,  1875. 

Opinion  by  Judge  Pryor  : 

It  is  evident  that  the  appeal  bond  executed  by  appellee  was  not 
only  intended,  but  was  a  bond  executed  in  the  circuit  court,  or 
rather  before  the  clerk  of  that  court,  to  supersede  the  judgment  ren- 
dered in  the  quarterly  court.  The  bond  is  styled  "Appeal  from  a 
judgment  of  T.  R.  Barnett,  Judge,  Green  quarterly  court;"  but  in 
the  body  of  the  bond  it  is  recited  that  the  appeal  is  from  the  judg- 
ment of  the  Green  county  court,  a  mere  omission  by  the  clerk  or 
draftsman,  at  best.  Still,  leaving  the  writing  upon  its  face  to  show 
plainly  the  interest  of  the  parties,  and  the  court  from  which  the  ap- 
peal was  taken,  the  demurrer  admits  the  statements  in  the  petition 
to  be  true.  The  bond  is  made*  part  of  it ;  and  we  think  there  is  no 
doubt  as  to  its  sufficiency  and  the  liability  of  the  surety  in  the  event 
the  party  appealing  failed  in  the  action. 

If  the  bond  was  not  even  filed  with  the  petition  it  would  be  no 
ground  for  demurrer ;  but  the  record  shows  that  it  was  made  part 
of  the  petition,  and  is  now  in  the  record.  In  Kendall  v.  Russell,  5 
Dana  501,  an  authority  referred  to  by  counsel  for  the  appellee,  it  is 
said:  "The  parties  should  be  bound  for  what  they  intended  to  be 


390  Kentucky  Opinions. 

bound,  and  no  more."  This,  we  think,  is  good  law,  and  it  being 
manifest  that  these  parties  intended  to  execute  a  bond  to  obtain  an 
appeal  from  the  quarterly  court,  and  did,  in  fact,  execute  it,  the 
judgment  is  reversed  and  cause  remanded  with  directions  to  overrule 
the  demurrer  to  the  petition,  for  further  proceedings  consistent  with 
this  opinion. 

W.  H.  Chelf,  for  appellant. 
/.  C  Rush,  for  appellees. 


Harriet  Vaugh,  et  al.,  v.  J.  H.  Neeley. 

Judicial  Sale — Mortgage  Foreclosure— Judgment — Descriptions. 

A  judgment  for  the  sale  of  land  will  be  reversed  where  it  does  not 
in  itself  contain  such  a  description  of  the  land  as  will  enable  the  mas- 
ter to  find  it  without  reference  to  the  title  papers. 

APPEAL  FROM  CUMBERLAND  CIRCUIT  COURT. 

February  27,  1875. 

Opinion  by  Judge  Peters  : 

The  evidence  is  insufficient  to  authorize  the  interference  of  the 
chancellor  on  the  ground  that  the  appellant,  Harriet  Vaugh,  was,  by 
duress  or  intimidation,  induced  to  execute  the  mortgage.  Nor  can 
the  contract  be  avoided  on  the  ground  that  it  was  a  compounding 
of  a  felony.  Neeley  swears  that  he  never  made  any  such  charge 
against  O.  C.  Vaugh,  that  he  neither  obtained  nor  applied  for  a  war- 
rant against  him  on  any  charge  whatever. 

Haggard  proves  he  was  a  justice  of  the  peace  for  Cumberland 
county,  has  some  vague  recollection  of  having  issued  a  warrant 
against  O.  C.  Vaughn,  but  has  no  recollection  of  what  the  charge 
was  against  him ;  he  supposes  it  was  issued  upon  the  application  and 
affidavit  of  some  one,  perhaps  Neeley,  but  cannot  certainly  say ;  the 
process,  wjiatever  it  was,  has  never  been  returned.  And  Baker,  the 
constable,  had  some  kind  of  process  against  him,  but  cannot  say  what 
it  was,  as  he  never  read  it.  He  went  to  Vaughan's  once,  and  walked 
away  and  did  not  execute  it.  There  is  nothing,  therefore,  definite, 
or  approximating  to  that  certainty  upon  which  to  found  judicial 
action. 

But  the  judgment  must  be  reversed  for  a  failure  to  identify  the 
land  to  be  sold.    This  court  has  repeatedly  held  that  a  judgment  for 


J.  L.  Sullivan,  et  al.,  v,  Daniel  Norris.  391 

the  sale  of  land  must,  in  itself,  contain  such  a  description  of  the 
land  as  will  enable  the  master  to  find  it  without  reference  to  the  title 
l)apers.  In  this  judgment,  the  master  directed  to  sell  the  land 
described  in  the  mortgage,  or  so  much  thereof  as  will  pay  the  debt. 
And  when  that  instrument  is  examined,  it  purports  "The  following 
described  property,"  viz.,  lying  on  the  left  hand  side  of  the  Burks- 
ville  &  Lexington  road  about  one  mile  -and  a  fourth  south  of  Burks- 
ville,  begpinning  at  the  division  line  between  Martin  Baker  and  James 
Gilmon,  at  the  river,  thence,  to  the  old  Henry  Carg  comer,  on  the 
river,  thence,  to  a  branch  on  the  left  hand  branch  of  said  road, 
thence,  with  the  meanders  of  the  branch,  to  the  division  line,  thence, 
with  said  division  line  to  the  beginning. 

No  courses  nor  distances  are  given ;  no  place  is  identified  as  the 
beginning  comer,  and  it  would  be  impossible  to  find  the  land  even 
with  or  without  a  surveyor.    No  quantity  is  named. 

The  judgment  must  be  reversed  and  the  cause  remanded  with 
directions  for  other  proceedings  consistent  herewith. 

Spenser  &  Allen,  for  appellants. 
Craddock  &  Wplker,  for  appellee. 


J.  L.  Sullivan,  et  al.,  v,  Daniel  Norrls. 

Contract*— Agency. 

-  An  agent  cannot  collect  what  is  due  his  principal  by  discharging  his 
(the  agent's)  own  debts;  the  debtor  in  such  a  case  cannot  discharge 
his  indebtedness  to  the  principal  by  crediting  himself  with  an  amount 
owing  to  him  by  the  agent. 

APPEAL  PROM  HARRISON  CIRCUIT  COURT. 

February  27,  1875. 

Opinion  by  Judge  Pryor  : 

The  testimony  on  the  part  of  the  appellee  established  the  fact  that 
there  was  about  one  thousand  pounds  of  tobacco  in  the  lot  that  ap- 
pellee was  claiming,  belonging  to  James  Norris. 

On  the  part  of  the  appellants,  there  was  proof  conducing  to  show 
that  nearly  one-half  of  the  tobacco  claimed  by  the  appellee  belonged 
to  James  Norris.  That  appellee  was  the  owner  of  the  tobacco  was 
expressly  denied  by  the  answer,  and  yet  the  jury  were  told  that  if 
the  defendants  (appellants)  received  the  tobacco  in  the  account  of 


39^  Kentucky  Opinions. 

sales  filed  with  the  petition  to  sell  for  the  plaintiff  (appellee),  they 
must  find  for  the  paintiff  the  amounts  for  which  the  said  tobaccx) 
was  sold,  less  the  costs,  charges,  etc. 

This  instruction,  under  the  proof,  was  erroneous,  for  the  reason 
that,  although  the  appellants  may  have  received  the  tobacco  to  sell 
for  the  appellee,  still,  if  any  part  of  it  beonged  to  James  Norris,  the 
appellants  had  the  right  to  apply  the  proceeds  to  that  extent  to  the 
payment  of  what  James  Norris  owed  them. 

The  jury,  from  this  instruction,  was  compelled  to  find  for  the  ap- 
pellee the  whole  of  the  proceeds  of  the  tobacco,  whether  it  belonged 
to  him  or  not,  and  particularly  when  the  court  refused  to  instruct 
the  jury  that  if  the  appellee  was  not  the  owner  of  the  tobacco  they 
must  find  for  the  defendant.  The  question  as  to  who  owned  the  to- 
bacco, or  the  extent  of  James  Norris's  interest  in  it,  was  taken  en- 
tirely from  the  jury,  when  it  was  conceded  by  appellee  that  he 
owned  one  thousand  pounds,  and  when  proof  had  been  heard  on  the 
part  of  appellants  tending  to  show  that  he  had  a  greater  interest. 

As  this  question  was  taken  from  the  jury,  or  not  submitted  to 
them,  neither  the  appellee  nor  the  court  had  the  right  to  determine 
that  question,  and  to  adjudge,  by  abating  the  amount  of  the  verdict, 
that  what  James  Norris  said  in  regard  to  this  matter  was  true,  and 
that  the  other  wfitnesses  were  mistaken.  This  may  have  been  the 
case,  but  if  so,  it  was  a  question  for  the  jury.  The  jury  should  have 
been  told  that  if  this  tobacco  belonged  to  the  appellee,  and  was  sold 
by  appellants  for  the  appellee,  that  the  latter  was  entited  to  recover ; 
or  if  the  tobacco  was  intrusted  by  appellee,  with  James  Norris  as  his 
agent,  to  sell  or  have  sold,  and  the  same  was  sold  by  appellants,  the 
latter  is  liable  to  appellee  for  the  amount  of  the  proceeds  unless  the 
same  had  been  paid  to  James  Norris. 

The  jury,  as  the  proof  now  appears,  should  also  have  been  told 
that  although  they  may  believe  from  the  testimony  that  James  Nor- 
ris was  the  agent  of  appellee,  and  had  this  tobacco  sold  for  him  by 
appellants,  that  appellants  had  no  right  to  appropriate  the  proceeds 
to  the  payment  of  what  James  Norris  owed  them,  and  that  such  pay- 
ment, if  made,  did  not  preclude  the  appellee  from  recovery,  unless  he 
consented  that  the  pa>Tiient  should  be  thus  made,  or  after  it  was 
made,  ratified  it. 

An  agent  has  no  right  to  collect  what  is  due  his  principal  by  dis- 
charging his  (the  agent's)  own  debts,  and  this  rule  applies,,  whether 
the  party  making  such  a  payment  knew  he  was  the  agent  at  the  time 


Robert  Dedman,  et  al.,  v.  Samuel  B.  Scarce.  393 

or  not.  If,  from  the  evidence,  any  part  of  the  tobacco  belonged  to 
James  Norris,  to  that  extent  the  appellants  could  apply  the  proceeds. 
Judgment  reversed  and  cause  remanded  with  directions  to  award 
the  appellants  a  new  trial,  and  for  further  proceedings  consistent 
with  this  opinion. 

/.  N,  Turber,  A.  Duvall,  Ward,  for  appellants. 
E.  Whittaker,  for  appellee. 


Robert  Dedman,  et  al.,  v.  Samuel  B.  Scarce. 

Appeal — ^Bill  of  Exceptions. 

An  unsigned  bill  of  exceptions  is  of  no  force  or  effect,  and  cannot 
be  considered  by  the  court  of  appeals. 

appeal  from  WOODFORD  CIRCUIT  COURT. 

March  23,  1875. 

Opinion  by  Judge  Lindsay  : 

The  paper  copied  into  the  record,  and  termed  by  the  clerk  the 
"Bill  of  Exceptions,"  lacks  the  signature  of  the  judge  who  presided 
upon  the  trial  of  the  action.  In  this  condition  it  does  not  conform 
to  the  provisions  of  Sec.  367,  Civil  Code  of  Practice.  The  defect 
is  one  of  substance,  and  not  merely  of  form. 

The  order  of  court,  showing  that  appellant  tendered  a  bill  of  ex- 
ceptions, which  was  signed  by  the  court  and  ordered  to  be  filed  and 
made  a  part  of  the  record  herein,  neither  cures  the  defect,  nor  au- 
thorizes this  court  to  treat  the  paper  as  a  bill  of  exceptions.  As  was 
held  in  the  case  of  AUsup  v.  Hpssett,  12  B.  Mon.  128,  this  paper, 
upon  its  face,  lacks  an  essential  requisite  of  the  instrument  de- 
scribed in  the  order,  and  if  absolute  credence  is  to  be  given  to  the 
record  entry  that  the  bill  was  signed  by  the  judge,  then  it  is  cer- 
tain the  paper  copied  by  the  clerk  is  not  the  paper  so  signed,  and  or- 
dered to  be  made  a  part  of  the  record.  It  is  useless  to  speculate  as 
to  the  possibility  of  the  name  of  the  judge  having  been  erased  or 
obliterated.  There  has  been  no  attempt  made  to  supply  a  defaced 
or  an  obliterated  record.  There  is  no  pretense  that  this  paper  is 
not  now  in  the  exact  condition  it  was  when  ordered  to  be  filed ;  and 
the  extraneous  evidence  presented  by  appellants  show  that  it  is  in 
exact  condition. 

If  the  order  should  be  treated  as  a  consent  order  that  the  paper 
should  be  revised  by  appellee's  counsel,  and  afterwards  signed  by  the 


394  Kentucky  Opinions. 

judge,  it  would  avail  nothing.  This  agreement  was  not  complied 
with,  and  the  courts  have  no  power  to  compel  appellee  to  comply 
with  it. 

In  case  of  Kelsoe  r.  Ellis,  lo  B.  Mon.  36,  the  judgment  was  ren- 
dered on  the  last  day  of  the  term.  Th€  paper  intended  as  a  bill  of 
exceptions,  and  which  was  by  agreement  left  open  for  correction, 
was  not  intended  to  be  made  part  of  the  record,  by  the  mere  signing 
and  sealing  by  the  judge.  The  order  contemplated  that  the  bill, 
when  corrected,  signed  and  sealed,  should  be  recorded.  The  record- 
ing was  to  be  the  final  test  of  the  paper's  verity.  We  may  presume, 
that  then,  as  now,  the  orders  of  the  last  day  of  the  term  stood  over 

« 

and  were  not  signed,  until  the  first  day  of  the  succeeding  term.  In 
such  a  case,  a  bill  of  exceptions,  put  as  any  other  order,  entered 
erroneously,  or  not  reciting  accurately  the  facts  upon  which  the 
determination  was  based,  might  be  corrected  before  being  signed. 
The  orders,  including  the  corrected  bill  of  exceptions,  were  signed, 
and  this  court  declined  to  allow  the  verity  of  the  bill  to  be  impeached 
by  affidavits  presented  here  for  the  first  time.  When  appellant  made 
the  alleged  agreement  with  appellee,  through  his  counsel,  he  placed 
himself  at  the  mercy  of  his  adversary.  The  moral  obligation  resting 
upon  appellee  to  comply  with  the  agreement,  is  a  matter  with  which 
we  have  nothing  to  do.  The  courts  cannot  enforce  it.  The  agree- 
ment cannot  operate  as  an  estoppel.  An  incomplete  record  cannot 
be  perfected  by  and  through  an  estoppel.  The  unsigned  bill  cannot 
be  made  part  of  the  original  record  by  the  bill,  reciting  the  facts 
transpiring  at  a  subsequent  term. 

We  are  compelled  to  determine  that  there  is  no  bill  of  exceptions 
in  the  record,  and  must,  therefore,  affirm  the  judgment  of  the 
circuit  court. 

Turner  &  Huston,  for  appellants. 
Porter  &  Wallace,  for  appellee. 


S.  E.  Hardwick  v.  Daniel  Crow,  et  al. 

Married  Women — Contracts. 

The  aasignment  of  notes  made  by  a  married  woman  cannot  convey 

title  to  the  notes. 

Contracts. 

When  the  disabilities  of  a  married  woman  are  removed,  she  cannot 
be  compelled  to  execute  a  contract  entered  into  during  the  existence 
of  her  coverture. 


Taft  &  Son  v.  L.  Barrett  &  Wife.  395 

APPEAL  FROM  POWELL  CIRCUIT  COURT 

March  23,  1875. 

Opinion  by  Judge  Peters: 

At  the  time  the  two  notes  on  Crow  were  assigned  by  appellant 
to  appellee,  Clark/she  was  laboring  under  the  disability  of  coverture, 
as  she  was  when  the  house  and  lot  were  sold  by  Clark  to  her,  and 
when  she  contracted  to  sell  her  land  to  Crow ;  and  for  the  same  rea- 
son that  the  contract  for  the  sale  of  her  land  to  Crow  was  set  aside, 
the  assignment  made  by  her  of  the  notes  she  held  on  Crow  to  Clark 
should  have  been  set  aside.  When  her  disabilities  were  removed, 
she  could  not  be  compelled  to  execute  a  contract  entered  into  during 
the  existence  of  her  coverture.  The  court,  therefore,  erred  in  ren- 
dering judgment  against  her  for  the  amount  of  the  two  notes  on 
Crow  assigned  by  her  to  Clark. 

As  to  so  much  of  the  judgement  as  allowed  Crow  credit  for  the 
$100  paid  by  him  to  Clark  on  his  account  for  rents,  it  is  approved. 
The  evidence  conduces  to  show  that  she  put  Crow  in  possession  of 
the  land,  and  the  payment  to  Clark  was  by  her  direction ;  and  it 
should  be  regarded  as  a  payment  to  her.  While  a  court  of  equity 
will  relieve  her  of  her  contract  with  Crow  because  of  her  coverture, 
the  court  will  not  aid  her  to  impose  a  wrong  on  him.  He  seems  to 
have  acted  in  good  faith,  and  should  be  credited  with  the  money  paid 
for  her  benefit. 

The  judgment  in  favor  of  Clark  for  the  amount  of  the  two  notes 
assigned  to  him  on  Crow,  and  the  costs  of  the  suits  therein  named 
against  appellant,  is  reversed,  and  the  cause  is  remanded  with  di- 
rections to  dismiss  Clark's  petition  against  appellant. 

Turner  &  Holt,  for  appellant, 
/.  B.  Huston,  for  appellees. 


Taft  &  Son  v.  L.  Barrett  &  Wife. 

Conveyance  to  Defraud  Creditors. 

A  voluntary  and  fraudulent  conveyance,  through  another,  by  a  hus- 
band to  his  wife,  is  void  as  against  creditors  of  the  husband,  notwith- 
standing that  the  debt  due  such  creditor  was  incurred  after  the  date 
of  Boch  conveyance. 


396  Kentucky  Opinions. 

APPEAL  FROM  CAMPBELL  CHANCERY  COURT. 

March  23,  1875. 

Opinion  by  Judge  Cofer  : 

The  appellants  brought  this  suit  in  the  chancery  court  of  Camp- 
bell county  against  Lawrence  Barrett  and  his  wife,  Ellen  Barrett, 
alleging  that  they  had  recovered  a  judgment  at  law  against  Law- 
rence and  John  Barrett  for  a  bill  of  lumber,  on  which  they  had  caused 
an  execution  to  issue,  directed  to  the  sheriff  of  Campbell  county,  who 
had  returned  it  no  property  found. 

They  further  allege  that  on  the  31st  of  January,  1870,  Lawrence 
Barrett  and  his  wife,  without  consideration,  and  with  a  view  of  de- 
frauding the  creditors  of  the  said  Lawrence,  and  with  the  intention  to 
afterwards  obtain  credit  for  the  lumber  purchased  by  the  said  Law- 
rence and  John  Barrett  of  them,  conveyed  to  one  Collins  a  certain 
lot  of  ground  situated  in  Newport,  and  on  the  next  day  the  said 
Collins  reconveyed  the  lot  to  Mrs.  Barrett. 

They  sought  to  subject  the  lot  to  the  satisfaction  of  their  judg- 
ment. It  appeared  from  the  petition  that  the  debt  which  was  the 
basis  of  the  appellants'  judgment,  was  created  in  March,  June  and 
August  after  the  date  of  the  conveyance,  and  Barrett  and  wife  de- 
murred to  the  petition ;  and  the  demurrer  having  been  sustained  and 
the  petition  dismissed,  this  appeal  is  prosecuted  to  reverse  that 
judgment. 

The  allegations  are  that  the  deeds  were  both  voluntary,  and  actu- 
ally fraudulent.  Those  averments  must,  for  the  purpose  of  the  de- 
murrer, be  treated  as  true,  and  this  being  done,  we  have  no  doubt 
but  that  the  petition  was  sufficient. 

The  first  section  of  the  act  to  prevent  fraudulent  conveyances. 
Chap.  40,  Rev.  Stat.,  declares  "that  every  gift,  conveyance,  assign- 
ment, transfer  of,  or  charge  upon  any  estate,  made  with  intent  to 
delay,  hinder,  or  defraud  creditors,  purchasers,  or  other  persons 
shall  be  void  as  against  such  creditors,  purchasers  or  other  per- 
sons." Every  conveyance  falling  within  the  purview  of  this  section 
is  void  as  to  all  creditors,  whether  prior  or  subsequent.  Edwards,  et 
al.,  V,  Coleman,  2  Bibb  204. 

The  second  section  of  the  same  chapter  provides  that  every  gift, 
conveyance,  etc.,  without  valuable  consideration  therefor,  shall  be 
void  as  to  all  the  existing  liabilities,  but  shall  not,  on  that  account 
alone,  be  void  as  to  creditors  whose  debts  or  demands  are  thereafter 
contracted. 


Taft  &  Son  v.  L.  Barrett  &  Wife.  397 

Under  the  English  statute  of  13  Elizabeth,  which  contained  no 
such  provision  as  that  contained  in  the  second  section  of  our  act, 
it  was  long  made  a  question  whether  voluntary  conveyances  were 
not  on  that  account  alone  fraudulent  as  to  subsequent  creditors. 

In  Sexton  v.  Wheaton  &  Wife,  8  Wheaton  229,  it  was  insisted  for 
the  appellants  that  the  statute  of  13  Elizabeth  was  still  in  force  in 
the  District  of  Columbia,  and  that  under  that  act  a  voluntary  con- 
veyance was  per  se  fraudulent  and  void  as  to  subsequent,  as  well  as 
prior  creditors;  and  chief  justice  Marshall  thought  it  necessary  to 
review  the  English  cases  in  which  that  statute  had  been  construed 
in  order  to  show  that  the  courts  there  had,  but  not  without  much 
doubt  and  hesitation,  come  to  the  conclusion  that  such  conveyances 
were  not  void  merely  on  account  of  being  voluntary.  No  such  ques- 
tion can  now  arise  in  this  state,  but  the  construction  given  to  the 
English  statute  serves  to  make  the  meaning  of  our  own  clear.  In- 
deed, the  language  would  seem  to  imply  that  a  fraudulent  convey- 
ance, although  made  to  the  wife  or  child  of  the  grantor,  is  to  be 
held  void  as  to  creditors. 

The  langfuage  is  that  if  made  without  valuable  consideration,  it 
shall  not  on  that  account  alone  be  deemed  fraudulent  as  to  subse- 
quent creditors.  When  a  conveyance  is  actually  fraudulent,  it  falls 
within  the  denunciations  of  section  one,  and  the  circumstance  that 
it  is  also  voluntary,  cannot  avoid  the  consequence  of  the  fraud  in  fact. 

That  a  fraudulent  conveyance  is  void  as  to  all  creditors  of  the 
grantor  is  not  only  maintainable  upon  the  principles  applicable  to 
the  English  statute,  and  on  account  of  the  language  of  our  act 
against  fraudulent  conveyances  independent  of  authority,  but  this 
court  has  repeatedly  recognized  this  rule.  Cosby  v.  Ross,  3  J.  J. 
Marsh.  290 ;  Lyne,  et  al.,  v.  Bank  of  Ky.,  5  J.  J.  Marsh.  545 ;  Enders 
V.  Williams,  i  Met.  346;  Duhme  &  Co.  v.  Young,  et  al.,  3  Bush 
343 ;  Lowry  v.  Fisher,  et  al.,  2  Bush  70.  We  are,  therefore,  of  the 
opinion  that  the  court  erred  in  sustaining  the  demurrer  to  the  pe- 
tition. Wherefore  the  judgment  is  reversed,  and  the  cause  is  re- 
manded, with  directions  to  overrule  the  demurrer,  and  for  further 
proceedings. 

E.  W.  Hawkins,  G.  R.  Tearson,  for  appellants. 
H.  L.  Smalley,  for  appellees. 


400  Kentucky  Opinions. 

from  the  plaintiff  to  the  defendant.  If  the  killing  is  admitted  or 
proved,  and  there  is  no  evidence  as  to  the  facts  attending  the  oc- 
currence, the  plaintiff  would  be  entitled  to  a  verdict.  When  the  de- 
fendant undertakes  to  rebut  the  prima  facie  presumption  created  by 
the  statute,  the  jury  should  be  left  to  decide  on  all  the  evidence 
offered,  whether  negligence  and  carelessness  have  been  disproved. 
The  presumption  of  law  is  not  necessarily  rebutted  or  overcome 
whenever  evidence  is  introduced  as  to  the  circumstances  under  which 
the  injury  was  done.  The  company  must,  in  order  to  overcome  the 
presumption,  offer  such  evidence  as  will  beget  a  belief  in  the  minds 
of  the  jury  that  its  agents  and  servants  used  such  care  to  avoid  the 
injury  complained  of  as  men  of  ordinary  prudence  and  judgment 
wiould  have  used  under  similar  circumstances,  when  their  own  in- 
terests were  involved. 

The  appellee  was  permitted  to  prove  his  own  declaration  made 
before  the  killing  of  the  colt,  as  to  its  pedigree.  This  was  error. 
While  pedigree  may  be  proved  as  tending  with  other  facts  to  show 
tlie  value  of  stock,  it  must  be  proved  by  such  evidence  as  would  be 
competent  to  prove  any  other  fact  in  issue  in  the  cause;  and  it 
would  have  been  just  as  competent  to  prove  by  the  appellee's 
previous  declarations  the  value  of  the  colt,  or  any  other  fact  relative 
to  the  case. 

The  appellant,  while  using  the  road,  was  liable  in  the  same  manner 
and  to  the  same  extent  as  if  it  had  been  the  owner  thereof. 

For  the  errors  indicated,  and  none  other,  the  judgment  is  reversed, 
and  the  cause  is  remanded  for  a  new  trial,  upon  principles  not  incon- 
sistent with  this  opinion. 

P,  T.  Green,  H,  M.  Buford,  for  appellant. 
Morton  &  Barker,  Smith  &  Shelby,  for  appellee. 


J.  B.  Martin  v.  Commonwealth. 

Criminal  Law — Indictment. 

It  is  not  sufficient  in  an  indictment  for  obtaining  money  by  false 
pretenses,  to  aver  that  the  representations  made  were  false,  but  it 
must  be  alleged  in  addition  that  the  defendant  knew  them  to  be  false. 

APPEAL  FROM  ADAIR    CIRCUIT  COURT. 

March  25,  1875. 

Opinion  by  Judge  Cofer  : 

It  is  not  sufficient  in  an  indictment  for  obtaining  money  or  prop- 


Frank  Taylor  v.  Commonwealth.  401 

erty  by  false  pretenses,  to  allege  that  the  representations  made 
were  false,  but  it  should  be  alleged  in  addition  that  the  defendant 
knew  them  to  be  false.  Nor  can  the  necessity  for  such  allegations 
be  dispensed  with  by  the  averments  that  the  representations  were  un- 
lawfully and  feloniously  made.  These  allegations  serve  no  other  pur- 
pose except  to  show  the  intent  with  which  the  representations  were 
made. 

Nor  is  the  general  allegation  that  the  representations  were  false, 
sufficient.  The  representations  made  should  be  stated  in  the  indict- 
ment, and  it  should  then  be  charged  that  they  were  false,  and  were 
known  by  the  defendant  to  be  false.  That  the  representations  are 
false  did  not  necessarily  make  the  defendant  liable  to  a  prosecution 
for  a  public  offense. 

It  is  charged  that  the  defendant  represented  that  he  had  caught 
two  of  the  robbers  of  the  Columbia  Deposit  Bank,  and  had  them  in 
jail  in  another  state,  and  required  one  hundred  dollars  to  bring  them 
to  Adair  county,  which  said  statements  were  false.  This  may  be 
true,  and  it  may  also  be  true  that  the  defendant  had  arrested  and 
committed  to  jail  in  another  state  two  persons  whom  he  supposed 
to  be  two  of  those  engaged  in  robbing  the  bank ;  hence  the  necessity 
to  allege  that  he  knew  the  representations  he  made  were  untrue. 

An  indictment  is  never  sufficient  which  does  not  exclude  every 
rational  hypothesis  consistent  with  the  innocence  of  the  accused. 
The  motion  of  the  appellant  to  arrest  the  judgment  should  have  pre- 
vailed, because  the  indictment  did  not  state  facts  constituting  a 
public  offense. 

Judgment  reversed  and  cause  remanded  for  further  proceedings. 

Winfrey  &  Stewart,  for  appellant. 
John  Rodman,  for  appellee. 


Frank  Taylor  v.  Commonwealth. 

Criminal  Law — Sufficiency  of  Indictment — Confessions. 

In  charging  assault  and  battery  with  intent  to  kill,  an  indictment 
is  not  defective  for  failing  to  state  that  the  person  assaulted  did  not 
die. 

Confessions. 

Voluntary  confessions  should  be  allowed  to  go  to  the  jury;  to  ex- 
clude confessions  from  being  admitted  as  evidence  it  should  be  made 
to  appear  to  the  court  that  the  motive  of  hope  or  fear  must  have  been 
directly  applied  by  a  third  person  to  induce  them,  and  must  have 
been  suflBcient  in  the  judgment  of  the  court  to  overcome  the  mind  of 
the  prisoner,  to  render  the  confession  unworthy  of  credit. 

26 


402  Kentucky  Opinions. 

APPEAL.  FROM  KENTON  CIRCUIT  COURT. 

March  25,  1875. 

Opinion  by  Judge  Peters  : 

The  first  reason  urged  by  the  learned  attorneys  for  the  appellant 
for  a  reversal  of  the  judgment,  is  for  art  alleged  insufficiency  of 
the  indictment  in  omitting  to  state  therein  that  Cook,  the  person 
wounded,  did  not  die  from  the  wounds  then  and  there  inflicted. 

The  same  question  was  before  this  court  in  Burns  v.  Convnwn- 
wedUh,  3  Met.  13 ;  and  after  stating  the  general  requisites  of  an  in- 
dictment as  prescribed  by  the  Criminal  Code,  the  court  decided  that 
an  indictment  for  wilfully  and  maliciously  shooting  and  wounding 
another  with  an  intention  to  kill,  the  words  "so  that  he  did  not  die 
thereby"  being  omitted,  was  sufficient  either  upon  a  demurrer,  or 
on  a  motion  in  arrest  of  judgment. 

It  is  next  urged  that  the  court  erred  in  admitting  evidence  of  the 
confessions  of  appellant  to  go  to  the  jury.  The  doctrine  on  that 
subject  seems  to  be  that  in  order  to  exclude  confessions,  the  motive 
of  hope  or  fear  must  be  directly  applied  by  a  third  person  to  induce 
them,  and  must  be,  in  the  judgment  of  the  court,  sufficient,  so  far 
as  to  overcome  the  mind  of  the  prisoner,  to  render  the  confession 
unworthy  of  credit,    i  Greenleaf  on  Evidence  220. 

In  this  case  the  confessions  made  by  appellant  to  the  two  witnesses 
introduced  to  prove  them,  were  made  voluntarily;  they  were  not 
asked  for  by  Francis,  the  police  officer;  and  to  Dr.  Hall  he  made 
them  without  any  threats,  persuasions  or  proimses  on  his  part.  The 
doctor  proves  that  he  asked  appellant  if  he  did  the  cutting,  and  he 
replied  he  did  it  to  keep  from  being  shot,  or  after  he  had  been  shot  at. 
The  witness  could  not  state  which  form  of  expression  he  used. 
Under  the  rule  the  evidence  was  admissible. 

If  there  was  any  error  in  the  instructions  given  to  the  jury,  it  is 
not  assigned  as  a  ground  for  a  new  trial,  and  it  is,  therefore,  excluded 
from  the  consideration  of  this  court,  as  was  held  in  Hopkins  v. 
Commonwealth,  3  Bush  480,  and  other  cases. 

Wherefore  the  judgment  must  be  affirmed. 

Major  &  Jett,  for  appellant 
John  W.  Rodman,  for  appellee. 


A.  Gum  v.  G.  M.  Adams  &  Co.  403 

A.  Gum  v.  G.  M.  Adams  &  Co. 

Practice— Abatement— Ezccptions  to  Evidence. 

Where  it  appears  from  the  evidence  that  one  who  is  not  a  party,  is 
a  partner  of  the  plaintiff,  defendant  by  motion  and  rule  should  have 
required  the  plaintiff  to  make  such  person  a  party  plaintiff  or  dismiss 
his  suit,  but  having  failed  to  do  so  he  waived  his  right. 

Exceptions  to  Evidence. 

E}xception8  to  evidence  not  made  grounds  for  a  new  trial,  pursuant 
to  Civ.  Code,  §  372,  will  not  be  considered  by  the  court  of  appeals. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

March  26,  1875. 

Opinion  by  Judge  Peters  : 

As  to  the  first  paragraph  of  the  answer,  which  seeks  an  abate- 
ment of  the  action  because  Hugh  W.  Adams  was  not  a  plaintiff,  it 
is  sufficient  to  say  that  when  it  appeared  from  the  evidence  that  he 
was  the  partner  of  the  plaintiff,  G.  M.  Adams,  appellant  should  have, 
by  motion  and  rule,  required  G.  M.  Adams  to  make  him  a  plaintiff 
or  dismiss  his  suit ;  but  having  failed  to  apply  for  or  obtain  a  rule 
to  that  effect,  he  waived  his  right.  Corpenter  v.  Miles,  17  B.  Mon. 
598.  Counsel  for  appellant  seem  to  be  laboring  under  some  mistake 
as  to  the  evidence  of  Hugh  W.  Adams.  The  witness  proves  that 
he  saw  the  original  entry  made  on  the  books  of  the  firm,  by  which 
Green  was  credited  by  the  $95,  and  proved  he  had  some  knowledge 
of  the  transaction,  and  that  the  credit  was  afterwards,  by  mistake, 
given  to  appellant.    The  evidence  was,  therefore,  competent. 

The  letter  of  McGuire  and  the  testimony  of  Pilcher  were  compe- 
tent  to  contradict  the  statements  of  McGuire,  who  was  the  principal 
witness  relied  on  to  prove  payment  of  the  debt  sued  for,  if  for  no 
other  purpose.  Besides,  the  exceptions  to  the  evidence  are  not  made 
a  ground  for  a  new  trial,  and  under  Sec.  372,  Civil  Code,  on  account 
of  that  omission  this  court  cannot  consider  that  objection. 

Perceiving  no  error  in  the  proceedings  in  the  court  below  preju- 
dicial to  appellant,  the  judgment  is  affirmed. 

Morton  &  Parker,  for  appellant. 
Huston  &  Billingsley,  for  appellee. 


404  Kentucky  Opinions. 

James  Hart  v,  C.  P.  Mattingly. 

Bill  of  Exchange— Endorser's  Liability. 

Where  a  bill  of  exohange,  endorsed  by  A  is  negotiated  at  the  bank 
as  between  A  and  the  bank,  A  is  a  principal;  and  where  B  for  the 
accommodation  of  A  endorses  with  him  a  new  bill  of  exchange  as  a 
renewal  of  the  first  one,  B's  liability  is  that  of  endorser  for  A,  and  if 
he  should  have  to  pay  the  bill  might  recover  the  whole  amount  from  A. 

APPEAL  FROM  NELSON  CIRCUIT  COURT. 

March  26,  1875. 

Opinion  by  Judge  Cofer  : 

This  action  was  brought  by  Mattingly  against  Hart,  seeking  to 
charge  him  as  a  prior  endorser  on  a  bill  of  exchange  for  $1,250, 
which  had  been  held  by  the  Commercial  Bank  at  Lebanon,  and 
taken  up  by  Mattingly,  who  was  the  last  endorser  thereon. 

The  record  developed  the  following  facts:  On  August  24,  187 1, 
Queen  &  Bro.  drew  a  bill  of  exchange  for  $1,250,  payable  to  J.  F. 
Queen  and  C.  P.  Mattingly  at  ninety  days,  addressed  to  Queen 
Brothers  &  Q).,  who  accepted  it,  payable  at  the  Commercial  Bank 
at  Louisville.  The  bill  was  endorsed  by  the  payees,  and  discounted 
by  the  Commercial  Bank  at  Lebanon,  and  not  being  paid  at  maturity, 
was  protested,  and  notice  given  to  all  the  parties  to  the  bill. 

Queens,  who  seem  to  have  been  then  upon  the  verge  of  bank- 
ruptcy, desired  to  renew  the  bill,  and  with  this  view,  on  the  day  of 
its  maturity,  William  Queen,  who  was  a  member  of  both  firms,  drew 
a  bill  for  the  same  amount  as  the  old  one  upon  Queen  Bros.  &  Co.. 
in  favor  of  L.  F.  Hayden  and  J.  F.  Queen.  This  bill  was  accepted 
by  the  payees,  and  Mattingly  was  applied  to  to  endorse  it  also,  but 
declined  to  do  so.  One  of  the  Queens  then  applied  to  the  appellant, 
Hart,  to  endorse  for  them,  which  he  did,  and  the  bill  was  sent  to 
the  bank  at  Lebanon  as  a  renewal  of  the  former  one ;  but  the  bank 
declined  to  accept  it  without  the  name  of  Mattingly  or  some  one 
else  regarded  by  the  bank  as  a  satisfactory  endorser. 

After  the  last  bill  had  been  received  at  the  bank  and  declined  by 
it,  a  friend  of  Mattingly,  who  had  learned  that  it  would  not  be  ac- 
cepted unless  he  endorsed  it,  wrote  to  him,  and  advised  him  that  as 
he  was  bound  on  the  old  bill,  and  would  have  Hart  before  him  on  the 
new  one,  he  had  better  endorse  it. 

In  this  letter  was  enclosed  to  Mattingly,  for  Hart,  a  note  from  the 
writer  of  the  letter,  warning  Hart  to  keep  oflf  Queen's  paper.  Mat- 


James  Hart  v.  C.  P.  Mattingly.  405 

tingly  delivered  the  note,  and,  as  Hart  testified,  they  then  talked 
fully  about  the  financial  condition  of  the  Queens,  and  that  upon 
being  asked  by  him  whether  the  bill  had  been  discounted,  Mattingly 
said  he  did  not  know,  and  did  not  know  where  it  was.  He  further 
testified  that  he  then  told  Mattingly  that  he  hoped  it  would  not  be 
discounted,  and  that  Mattingly  told  him  to  say  nothing  about  the  bill. 
A  few  days  after  this  conversation  took  place,  Hart  left  home  for 
the  south,  and  did  not  return  until  after  the  bill  had  matured,  and 
been  sued  on  by  the  bank. 

After  the  receipt  of  the  letter  advising  him  to  endorse  the  bill, 
and  suggesting  that  if  he  would  do  so  Hart  would  be  first  liable  on 
it,  and  after  the  conversation  with  Hart,  in  which  Hart  says  he  ex- 
pressed to  Mattingly  the  hope  that  the  bill  would  not  be  discounted, 
Mattingly  went  to  the  Queens  and  told  them  that  he  had  been  in- 
formed that  the  bill  would  not  be  accepted  unless  he,  Mattingly,  en- 
dorsed it.  Queens  then  wrote  for  the  bill,  and  it  was  sent  to  them 
and  endorsed  by  Mattingly,  and  accepted  by  the  bank  in  payment 
of  the  old  bill. 

Aside  from  the  inference  to  be  drawn  from  the  refusal  of  Matt- 
ingly to  endorse  the  second  bill  when  applied  to  for  that  purpose, 
the  record  shows  that  at  the  time  of  the  conversation  with  Hart 
about  the  bill  and  the  financial  condition  of  the  Queens,  he  knew 
they  were  insolvent. 

Upon  appropriate  issues  and  evidence  tending  to  prove  the  sub- 
stance of  the  foregoing  facts,  the  court  instructed  the  jury,  in  eflFect, 
to  find  for  the  plaintiff,  which  they  did;  and  judgment  having  been 
rendered  thereon  against  Hart,  and  his  motion  for  a  new  trial  hav- 
ing been  overruled,  he  has  appealed. 

The  Commercial  Bank  at  Lebanon  was  the  holder  of  the  first  bilU 
and  as  between  the  bank  and  Mattingly,  it  was  his  debt.  It  makes 
no  difference  in  this  respect  that  Mattingly  had  endorsed  for  the 
accommodation  of  Queen,  he  was,  as  to  the  bank,  a  principal  debtor. 
Being  thus  indebted  to  the  bank,  Mattingly  would,  as  to  any  person 
not  bound  on  that  bill,  be  a  principal  in  any  subsequent  renewal; 
and  it  is  quite  clear  that  if  Hart  had  endorsed  the  new  bill  at  the  in- 
stance of  Mattingly,  and  had  taken  it  up,  he  could  have  received 
from  him  the  amount  so  paid,  no  matter  what  might  have  been 
their  relative  positions  on  the  bill.  In  that  case  Hart  would  have 
been  the  accommodation  endorser  of  all  those  who  were  bound  on 
the  old  bill  and  were  parties  to  the  new  bill. 

How,  then,  does  the  attitude  of  the  parties  in  this  case  differ  from 


4o6  Kentucky  Opinions. 

that  in  the  case  first  put?  It  is  true  that  Hart  did  not  endorse 
in  the  first  instance  at  the  request  of  Mattingly ;  but  this,  we  appre- 
hend, is  not  indispensable  in  order  that  Hart  may  be  treated  as 
having  endorsed  for  the  benefit  of  Mattingly. 

A  cannot  become  a  surety,  or  an  accommodation  endorser,  for  B, 
without  B's  request,  express  or  implied ;  but  if,  before  the  bill  had 
been  accepted  by  the  bank,  Mattingly  became  aware  that  Queen, 
for  whom  he  had  become  liable,  had  procured  Hart  to  endorse  a 
bill  intended  to  be  used  to  take  up  the  one  on  which  his  liability 
was  already  fixed,  and  that  the  bank  had  refused  to  accept  it  unless 
he  would  endorse  it,,  and  he  did  endorse  it  after  Hart,  in  order  to 
have  it  accepted  in  discharge  of  his  existing  liability,  he  stands  as  to 
Hart  in  the  same  attitude  in  which  he  would  have  stood  if  Hart  had 
originally  endorsed  the  bill  for  his- accommodation,  and  at  his  re- 
quest. 

The  instructions  given  by  the  court  did  not  conform  to  the  views 
herein  expressed;  and  the  judgment  is  therefore  reversed,  and  the 
cause  is  remanded  for  a  new  trial  upon  principles  not  inconsistent 
with  this  opinion. 

Muir,  Wickliffee,  for  appellant. 
A,  J.  Jafnes,  for  appellee. 


C.  &  O.  R.  Co.  V.  Barren  County  Court. 


Special  Charters— Power  of  the  Legislature  to  Amend. 

Where,  by  legislative  enactment  in  granting  a  charter  or  public 
franchise,  the  power  to  amend  is  reserved,  the  legislature  may  amend 
such  charter,  even  though  investments  have  been  made  under  the  ssme 
which  may  be  affected  by  such  amendment. 

APPEAL  FROM  BARREN  CIRCUIT  COURT. 

March  30.  1875. 

Opinion  by  Judge  Lindsay  : 

We  do  not  decide  as  to  the  power  of  the  legislature,  independent  of 
the  act  of  1856,  to  pass  the  act  of  amendment  under  which  this 
litigation  arose.  We  conceive  that  the  existence  of  the  act  of  1856 
supersedes  the  necessity  for  deciding  that  question. 

The  case  of  Aspinwall  v,  Daviess  County  Court  was  not  cited  as 
illustrative  of  legislative  power  to  repeal  or  amend  acts  of  incorpora- 


C.  &  O.  R.  Co.  V,  Barren  County  Court.  407 

tions,  but  to  show  that  the  proposition  to  subscribe  by  Barren  county, 
had  not  became  so  far  an  executed  contract,  anterior  to  the  enact- 
ment, as  to  be  protected  by  the  clause  of  the  federal  constitution 
prohibiting  states  from  passing  laws  impairing  the  obligations  of 
contracts,  and  to  distinguish  this  case  from  the  case  of  the  presiding 
judge  of  the  Washington  county  court  and  this  appellant. 

We  are  of  opinion,  and  so  decide,  that  the  act  of  1856  reserves 
to  the  legislature  the  right  to  amend  all  charters  (subject  to  the 
limitations  of  the  proviso  that  no  amendment  shall  impair  other 
rights  previously  vested)  in  which  a  contrary  interest  is  not  plainly 
expressed.  We  do  not  hold  that  the  contrary  interest  can  only  be 
plainly  expressed  by  being  in  terms  "expressly  relinquished,"  but 
that  in  as  much  as  the  intent  must,  in  the  language  of  the  statute, 
be  "plainly  expressed,"  where  it  is  not  so  relinquished,  the  provisions 
of  the  charter  must  be  such  as  are  irreconcilable,  with  the  power  to 
amend ;  otherwise  it  will  not  be  evident,  it  will  not  clearly  appear,  it 
will  not  be  easily  understood,  that  the  general  power  to  amend  or 
repeal  is  not  reserved.  We  do  not  regard  the  provisions  of  appel- 
lant's charter  as  irreconcilable  with  the  power  reserved  to  the  legis- 
lature by  the  acts  of  1856. 

We  recognize  the  potency  of  the  argument  of  the  majority  of  the 
court  in  the  Slack  case,  Slack,  et  aL,  v.  Maysville  &  Lexington  Rail- 
road Co.,  13  B.  Mon.  18,  upon  a  kindred  question,  but  do  not  regard 
that  argument  as  conclusive  of  the  question  to  be  decided  in  this 
case. 

There  was  no  power  to  repeal  or  amend  the  Maysville  &  Lexington 
Railroad  charter,  reserved  by  the  legislature,  either  in  express  terms, 
or  by  legal  implication.  Hence  the  court  said,  arguendo,  that  as 
soon  as  individuals  had  subscribed  and  expended  their  money  on 
the  faith  of  a  charter  valid  at  the  time,  there  was  an  interest  irre- 
vocable by  mere  legislative  act.  In  this  case,  individuals,  counties 
and  municipalities  have  subscribed  and  expended  their  money,  with 
full  notice  of  the  reserved  power  of  the  legislature  to  alter  or  amend 
the  charter. 

We  appreciate  the  consequences  that  may  flow  from  an  abuse  by 
the  legislature  of  the  power  reserved  by  the  act  of  1856.  Whether 
the  evil  consequences  will  more  than  balance  the  good,  is  a  question 
to  be  determined  by  the  legislature,  and  not  by  the  judicial  depart- 
ment of  the  government.  With  the  courts,  it  is  a  mere  question  of 
legislative  power,  and  not  of  public  policy,  and  "a  demonstration 
of  the  evil  consequences  to  flow  from  the  abuse  of  a  particular  power. 


4o8  Kentucky  Opinions. 

does  not  demonstrate  the  non-existence  of  that  power.'*  Supra,  13 
B.  Mon.  15. 
The  petition  for  a  rehearing  must  be  overruled. 

H.  C.  Pindell,  for  appellant. 
Rodman,  A,  DuzKill,  for  appellee. 


MooRE  &  Mason  v.  Isaac  Sparks. 

Highway — Dedication — ^Acceptance  by  the  Public. 

A  dedication  to  the  public  of  a  highway  is  not  complete  until  there 
is  an  acceptance  by  the  public.  A  public  highway  may  be  established 
covering  a  strip  of  land  tendered  by  the  owner  for  a  public  passway^ 
without  a  formal  acceptance. 

■ 

Acceptance  by  the  Public. 

After  the  continued  and  uninterrupted  use  of  a  passway  by  the  pub- 
lic for  a  period  of  time,  sufficient  to  perfect  a  title  by  prescription^ 
coupled  with  the  fact  that  the  local  public  has  at  all  times  exercised 
the  right  to  keep  the  passway  in  repair,  an  acceptance  may  be  pre> 
sumed. 

APPEAL  FROM  JESSAMINE  CIRCUIT  COURT. 

March  31,  1875. 

Opi,nion  by  Jodge  Lindsay  : 

A  dedication  to  the  public  does  not  become  complete  and  perfect  un- 
til there  is  an  acceptance  by  the  public.  The  appointment  by  the  county 
court  of  overseers  for  an  open  passway,  the  exercise  of  control 
over  such  passway,  or  the  direct  regulation  of  it  as  a  public  road, 
in  any  way,  will  amount  to  an  acceptance ;  and  an  indictment  will  not 
lie  against  an  individual  for  obstructing  a  passway,  until  the  public 
authorities  assume  the  duty  of  keeping  it  in  repair.  Gcdge,  et  cd.,  v. 
Commonwealth,  9  Bush  61.  But  it  does  not  follow  that  the  public 
may  not  acquire  title  to  a  strip  of  land,  tendered  by  the  owner  for  a 
public  passway,  without  a  formal  acceptance,  and  without  assuming 
the  absolute  duty  of  keeping  it  in  repair.  The  New  England  cases 
throw  but  little  light  upon  this  subject.  The  New  England  townships 
are  generally  liable  to  civil  suits  for  damages  arising  from  their  fail- 
ure to  keep  their  public  roads  in  repair;  and  this  fact  furnishes  a 
satisfactory  reason  why  private  individuals  shall  not  have  the  power, 
without  their  express  consent,  to  impose  upon  them  the  duty  of  keep- 
ing in  repair  a  new  and  undesirable  highway.    It  seems  to  be  the  law 


Josephine  Clark,  et  al.,  z\  William  Tucker.  409 

in  England  that  the  formal  acceptance  by  the  public  authorities  is 
not  necessary,  and  that  the  general  use  by  the  public  for  a  great 
length  of  time  is  equivalent  to  an  acceptance.  30  Eng.  L.  &  Eq.  207 ; 
I  Man.  &  G.  392. 

We  see  no  good  reason  why,  under  our  laws,  after  a  continued  and 
uninterrupted  use  by  the  public  for  a  period  of  time,  sufficient  to  per- 
fect a  title  by  prescription,  coupled  with  the  fact  that  the  local  public 
has  at  all  times  exercised  th^  right  to  keep  the  passway  in  repair,  an 
acceptance  may  not  be  presumed.  We  do  not,  however,  regard  it  as 
indispensable  to  decide  the  question  upon  this  appeal.  According  to 
appellee's  testimony,  the  passway  under  consideration  was  a  public 
one,  or  else  the  public  used  it  under  a  license  from  the  owners  of  the 
soil.  The  record  does  not  show  that  appellee  claimed  openly,  any 
interest  in  the  strips  of  land,  or  exercised  over  it  any  act  of  owner- 
ship, different  in  character  from  that  claimed  and  exercised  by  such 
other  persons  living  in  the  neighborhood  as  found  it  convenient  or 
necessary  to  use  the  passway. 

We  are  unable  to  determine  that  the  closing  of  the  road  deprives 
appellee  of  the  exercise  of  any  of  his  private  and  individual  rights. 

Petition  overruled, 

/.  B.  Hunston,  J,  S.  Bronaugh,  for  appellants, 
B.  T,  Buckner,  for  appellee. 


Josephine  Clark,  et  al.,  v.  William  Tucker. 

Women — ^Jud^ment. 
Where  several  married  women  were  sued  jointly  with  their  hus- 
bands and  others,  and  a  Joint  personal  judgment  is  rendered  against 
all,  such  judgment  is  erroneous  as  to  the  married  women,  and  since 
the  judgment  is  joint  it  must  be  reversed  as  to  all. 

APPEAL  FROM  McLEAN  CIRCUIT  COURT. 

March  1,  1875. 

Opinion  by  Judge  Cofer  : 

Several  of  the  appellants,  who  are  married  women,  and  were  such 
when  this  action  was  brought  and  when  the  bond  sued  upon  was 
executed,  were  sued  jointly  with  their  husbands  and  others,  and  a 
joint  personal  judgment  was  rendered  against  all.  This  was  error 
as  to  the  married  women ;  and  as  the  judgment  is  joint  it  must  be 
reversed  as  to  all. 


410  Kentucky  Opinions. 

As  there  may  be  a  retrial,  we  have  deemed  it  proper  to  notice  some 
of  the  errors  complained  of  in  giving  and  refusing  instructions. 

In  the  second  instruction  given,  the  court  told  the  jury,  in  sub- 
stance, that  if  the  appellee  applied  to  cross  in  appellants'  ferry-boat 
with  his  wagon  and  team,  and  the  boat,  at  the  time,  was  in  charge  of 
the  boy,  John  Samuels,  or  that  he  was  and  had  been  crossing  passen- 
gers in  tlie  boat  with  the  knowledge  of  the  regular  ferryman,  and  the 
appellee's  team  was  drowned  in  consequence  of  the  want  of  strength 
or  precaution  on  the  part  of  the  boy,  they  should  find  for  the  plain- 
tiff. 

The  first  part  of  this  instruction  made  the  appellants  liable  if  the 
appellee  applied  to  cross  in  the  ferry,  and  found  the  boy  in  charge  of 
the  boat,  and  the  team  was  lost  on  account  of  the  want  of  strength 
and  care  on  his  part.  This  was  error,  because  it  did  not  submit  to  the 
jury  the  question  whether  the  boy  was  there,  with  the  knowledge  or 
consent  of  the  regular  ferryman,  for  the  purpose  of  taking  charge  of 
the  boat  and  ferrying  persons  or  property  across  the  river.  That 
the  boy  was  found  in  charge  of  the  boat  was  not  enough  to  render  the 
owners  of  the  ferry  answerable  for  his  misconduct  or  his  want  of 
strengtli  to  manage  the  boat. 

If  he  was  put  there  by  the  appellants  or  their  ferryman,  to  act  as 
ferryman,  they  would-be  liable;  but  if  he  was  not  placed  there  by 
them  or  the  ferryman  he  had  no  authority  to  act  for  the  owners,  and 
they  are  not  liable.  That  the  boy  had  been  crossing  passengers  in 
the  boat  with  the  knowledge  of  the  ferryman,  may  have  been  some 
evidence  that  he  was  in  charge  of  the  boat  with  his  knowledge,  but 
was  not  conclusive  of  the  question ;  and  it  was  error  to  tell  the  jury 
that  if  they  found  that  the  boy  had  "been  crossing  passengers  in  the 
boat  with  the  knowledge  of  the  regular  ferryman,"  the  appellants 
were  liable  for  the  loss  of  the  team  if  it  occurred  in  the  manner 
claimed. 

The  allegations  recited  in  the  fifth  instruction  are  mere  allegations 
of  matters  of  evidence,  and  not  being  material  to  the  cause  of  action 
were  not  confessed  by  the  failure  to  deny  them. 

Judgment  reversed  and  cause  remanded  with  instructions  to  award 
the  appellants  a  new  trial. 

/.  M.  Bickers,  for  appellants. 
L.  W.  Gates,  for  appellee. 


W.  p.  FoGLE  V.  J.  M.  Fogle's  Ex'r.        411 

W.  p.  FoGLE  z\  J.  M.  Fogle's  Ex'r. 

Wills— Legacies  to  Be  Paid  on  Certain  Conditions. 

When  the  testator  provides  for  a  distribution  of  his  estate  among 
his  children,  when  each  arrives  at  the  age  of  thirty  years,  such 
children  cannot  receive  the  principal  of  such  legacies  until  they  are 
thirty  years  old,  but  the  executors  may  advance  to  each  their  portion 
of  the  income  of  the  estate  for  their  maintenance. 

APPEAL  FROM  MARION  CIRCUIT  COURT. 

March  2,  1875. 

Opinion  by  Judge  Peters  : 

The  better  to  secure  his  estate  to  his  children,  and  to  protect  them 
from  the  arts  of  designing  and  experienced  speculators,  with  whom 
the  testator  knew  they  must,  in  their  intercourse  with  the  world,  come 
in  contact,  he  doubtless  added  the  eighth  clause  of  his  will,  in  which 
he  says :  "All  the  bequests,  devises,  and  legacies  that  are  made  in  this 
will  are  not  to  be  paid  or  delivered  to  my  four  children,  Willie  P., 
Mattie  B.,  Bettie  P.,  and  James  L.  Fogle  (should  the  contingency 
happen  by  which  he  should  get  anything) ,  before  they  each  arrive  at 
the  respective  ages  of  thirty  years." 

When  this  will  was  before  this  court  on  a  former  occasion  for  con- 
struction, in  the  opinion  then  delivered,  it  is  said  that  they  (the 
executors)  are  not,  by  the  strict  language  of  the  will,  prohibited  from 
paying  "a  part  of  the  legacies"  to  the  devisees  before  they  respectively 
arrived  at  the  ages  of  thirty  years.  The  most,  if  not  all,  of  the  tes- 
tator*s  children,  except  his  son,  John  D.  Fogle,  were  under  21  years 
of  age.  Two  of  them  are  daughters,  and,  considering  his  large  estate, 
and  the  ages  and  situation  of  his  children,  it  would  have  been  un- 
reasonable to  suppose  that  he  intended  to  leave  his  infant  children 
without  the  means  of  maintenance  and  education,  and  withhold  from 
his  daughters  the  annual  profits,  as  well  as  the  principal,  of  what  he 
intended  for  them,  till  they  reached  thirty  years  of  age. 

Such  a  construction  should  not  be  given  to  the  will  as  would  with- 
hold even  the  income  or  annual  profits  of  the  devises  and  legacies 
from  the  devisees,  unless  the  language  of  the  will  imperatively  re- 
quired it.  But  while  we  do  not  think  the  executors  can  withhold  the 
whole  of  the  estate  devised  to  the  testator's  children  til!  they  re- 
spectively arrive  at  thirty  years  of  age,  still  there  is  a  large  discretion 
left  to  them. 

In  this  case  there  is  no  complaint  that  they  are  not  willing  to  pay 


412  Kentucky  Opinions. 

over  to  the  appellant  the  annual  profits  of  his  part  of  the  estate,  or 
that  they  refuse  to  make  reasonable  advancements  to  him  to  engage 
in  some  proper  pursuit  or  business,  which  is  likely  to  prove  profitable, 
and  for  which  he  is  qualified.  But  he  seeks  to  enforce  the  payment 
of  the  whole  devise  to  him  because  he  had  arrived  at  the  age  of 
twenty-one  years,  and  complains  that  tlie  time  fixed  in  the  will  for 
payment  is  unreasonable  and  unlawful. 

His  father  was  under  no  legal  obligation  to  give  him  any  part  of 
his  estate,  and  if  he  could,  by  his  will,  have  permitted  him,  he 
certainly  had  the  right  to  postpone  the  time  of  the  enjoyment  of  a 
part  of  his  bounty  nine  years.  He  doubtless  believed  that  he  was 
serving  the  best  interest  of  his  son  so  to  provide ;  and  we  have  no  in- 
clination, if  we  had  the  power,  to  change  in  any  particular  the  dis- 
position the  testator  has  made  of  his  estate. 

Wherefore  the  judgment  is  affirmed. 

Russell  6r  Averitt,  for  appellant. 
W.  B.  Harrison,  for  appellee. 


L.  Smith,  et  al.,  z*.  Matilda  Watson,  et  al. 

Infants--Sale  of  Real  Estate*-Petition  for  Conveyance. 

Where  it  is  shown  by  infants  that  no  bond  was  executed  for  the 
sale  of  their  land,  or  that  they  or  their  guardian  had  received  no  part 
of  the  purchase  money,  notwithstanding  the  order  of  the  court  recites 
that  a  bond  was  given,  the  proceeding  to  sell  in  so  far  as  it  affected 
the  infants  was  void,  and  a  conveyance  under  such  sale  should  not  be 
made. 

APPEAL  FROM  CUMBERLAND  CIRCUIT  COURT. 

March  2,  1875. 

Opinion  by  Judge  Pryor: 

The  report  of  the  commissioner  fails  to  state  that  the  interest  of 
the  infants  required  a  sale  of  the  land.  It  also  appears  that  no  bond 
was  executed  prior  to  the  rendition  of  the  judgment,  or  even  after- 
wards. 

The  answer  of  the  appellees  to  the  petition  of  the  purchaser,  ask- 
ing for  a  conveyance  of  the  land,  denies  that  any  bond  was  ever 
executed,  or  that  they  had  received,  or  their  guardian  for  them,  any 
part  of  the  purchase  money. 

The  order  of  court  recites  that  a  bond  was  executed  ;  but  this  bond. 


Mrs.  H.  Clay  Fox  v.  Samuel  Tipton.  413 

when  the  issue  as  to  its  execution  is  distinctly  made  by  the  appellees, 
is  not  produced,  nor  is  it  shown  that  any  was  ever  executed  except 
the  recital  in  the  order.  The  proceeding,  so  far  as  it  affected  the 
infants,  was  void,  and  the  court  below  should  have  refused  a  convey- 
ance. The  judgment  is  reversed  and  cause  remanded  for  further 
proceedings  consistent  with  the  opinion. 
A,  /.  James,  Scott  Walker,  for  appellants. 


Mrs.  H.  Clay  Fox  v.  Samuel  Tipton. 

Judgment — Sale  of  Real  Estate— Description. 

A  judgment  ordering  the  sale  of  real  estate,  which  in  itself  fails  to 
describe  the  particular  real  estate,  is  erroneous  and  will  be  reversed. 

APPEAL  FROM  MONTGOMERY  CIRCUIT  COURT. 

March  5,  1875. 

Opinion  by  Judge  Peters: 

The  judgment,  as  copied  in  this  case,  orders  a  sale  of  so  much  of 
the  personal  property  of  Mrs.  H.  C.  Fox,  exempt  from  execution,  as 
will  be  sufficient  to  pay  the  plaintiff  the  sum  of  $146.21,  with  interest 
from  January  i,  1873,  until  paid,  and  the  costs.  And  for  any  balance 
that  might  remain  unpaid  after  exhausting  the  personalty,  a  sale  is 
ordered  of  so  much  of  the  landed  estate  of  said  Mrs.  H.  C.  Fox  as 
may  be  required  to  pay  the  same. 

We  think  there  is  evidently  a  mistake  in  the  copy  of  the  judgment 
before  us,  and  that  the  word  "not"  preceding  the  word  exempt  was 
omitted  by  the  copyist,  and  should  be  so  regarded.  But  it  does  not 
appear  in  the  record  that  Mrs.  H.  C.  Fox  has  personal  estate  suffi- 
cient to  pay  the  debt ;  indeed,  it  may  be  inferred  from  what  does  ap- 
pear that  she  has  not  personal  property  subject  to  execution  suffi- 
cient to  pay  said  judgment;  and  it  may  be  necessary,  therefore,  to 
sell  a  part  of  her  real  estate.  And  as  this  judgment  contains  no 
description  of  any  of  her  real  estate  except  that  she  has  lands  in  the 
counties  of  Clark  and  Montgomery,  which,  as  has  often  been  decided 
by  this  court,  is  too  general  and  uncertain,  imposing  the  burden  on 
the  commissioner  of  going  into  the  country,  after  searching  out  from 
the  record  of  titles  the  location  and  description  of  her  land,  of  lo- 
cating it,  and  then  deciding  what  part,  if  all  should  not  be  required, 
should  be  sold,  making  his  duty  partly  judicial  as  well  as  ministerial. 


414  Kentucky  Opinions. 

As,  therefore,  there  is  no  particular  description  of  the  land  in  the 
judgment,  which  would  identify  it  and  enable  the  commissioner,  with- 
out resort  to  other  means,  to  ascertain  the  identical  land  to  be  sold, 
the  judgment  is  erroneous. 

If  it  becomes  necessary  to  make  the  requisite  identity  of  the  land, 
the  court  can  send  out  his  master,  with  the  surveyor,  and  lay  off  by 
metes  and  bounds  from  one  end  or  side  of  the  land  so  much  as  may  be 
deemed  necessary  to  pay  the  debt  and  cost,  including  the  surveyor's 
fee  and  the  allowance  to  the  master. 

For  the  error  alone  of  failing  to  define  precisely,  in  the  judgment, 
the  land  to  be  sold,  if  a  sale  of  land  should  be  necessary,  the  judg- 
ment of  the  court  below  is  reversed,  and  the  cause  is  remanded  for  a 
judgment  and  for  further  proceedings  consistent  herewith. 

If  there  is  no  mistake  in  the  copy  of  the  judgment  before  us,  and 
the  word  "not"  before  exempt  is  omitted,  that  omission  will  be  cor- 
rected on  the  return  of  the  cause. 

A.  /.  James,  for  appellant, 
Apperson  &  Reid,  for  appellee. 


John  F.  Rogers  v,  Margaret  E.  Rogers. 

Divorce— Custody  of  Children — Power  of  Court  to  Modify  Orders — 
Value  of  Attomesr's  Services. 

Under  the  law  the  right  of  the  father  to  the  custody  and  control  of 
his  children  Is  superior  to  that  of  the  mother,  hut  the  chancellor  may 
subordinate  this  right  when  it  is  to  the  interest  of  the  children  to 
give  the  custody  to  the  mother,  and  the  legal  right  of  the  father  will 
not  be  enforced  to  the  prejudice  of  the  children. 

Power  of  Court  to  Modify  Orders. 

In  a  divorce  proceeding  the  court  has  power  to  modify  its  order  as 
to  the  custody  of  children  and  allowances  for  their  benefit. 

Value  of  Attorney's  Services. 

In  a  divorce  proceeding,  on  an  application  for  payment  of  attorney's 
fees  for  representing  the  wife,  the  court,  having  knowledge  from  an 
inspection  of  the  record  of  the  amount  and  kind  of  services  rendered, 
may  resort  to  its  personal  knowledge  to  fix  the  value  of  such  services. 

APPEAL  FROM  FRANKLIN  CIRCUIT  COURT. 

March  6,  1875. 

Opinion  by  Judge  Lindsay  : 

Taking  into  consideration  the  amount  of  the  appellant's  estate  and 


John  F.  Rogers  v.  Margaret  E.  Rogers.  415 

the  probable  cost  of  maintenance  of  his  late  wife  and  his  children,  we 
cannot  say  that  the  allowance  made  by  the  circuit  court  was  excessive. 
Certainly  $100  for  the  support  of  three  persons  from  August  to 
February  is  not  unreasonable,  and  is  much  less  than  would  ordinarily 
suffice  for  that  purpose.  Although  there  is  no  evidence  in  the  record 
except  the  record  itself,  of  the  value  of  the  services  of  the  appellee's 
counsel,  the  value  of  such  services  as  appear  from  the  record  to 
have  been  rendered,  is  as  well  known  to  the  court  as  to  any  other  per- 
sons, and  the  court,  like  a  jury,  may  resort  in  such  cases  to  its  own 
knowledge  of  facts  which  are  of  a  general  character,  and  within  the 
knowledge  of  men  generally. 

It  would  certainly  not  be  necessary  to  prove  before  a  jury  of 
farmers  the  value  of  ordinary  farm  labor ;  but  upon  proof  of  the  labor 
and  its  amount  and  kind,  the  jury  would  be  authorized  from  the 
personal  knowledge  to  fix  its  value.  So  in  this  case,  the  court  hav- 
ing knowledge,  from  an  inspection  of  the  record,  of  the  amount  and 
kind  of  services  rendered  by  appellee's  counsel,  may  resort  to  its 
personal  knowledge  to  fix  the  value  of  such  services. 

Nor  can  we  say  that  the  court  erred  in  adjudging  to  the  appellee 
one-half  of  the  personal  effects  of  the  appellant.  His  whole  personal 
estate  would  not  amount,  according  to  his  answer,  to  more  than 
$200  or  $300,  and  one-half  of  this  will  be  but  a  scanty  provision  for 
Mrs.  Rogers  and  the  two  younger  children,  and  is  not  more  than 
should  have  been  allowed  her. 

We  have  no  revisory  power  over  the  interlocutory  orders  made  in 
reference  to  the  property,  either  in  the  judgment  or  in  the  subsequent 
order,  and  it  would,  therefore,  be  improper  to  express  an  opinion  as 
to  whether  the  court  properly  adjudged  a  lien  on  the  appellant's  land, 
or  restrained  him  from  selling  any  of  his  property  until  the  further 
order  of  the  court. 

While  it  is  true  that,  as  matter  of  strict  law,  the  right  of  the  father 
to  the  custody  and  control  of  his  children  is  superior  to  that  of  the 
mother,  yet  the  chancellor  had  always  subordinated  this  legal  right 
to  the  weightier  consideration  of  the  interest  of  the  children,  and  he 
will  not  allow  the  legal  rights  of  the  father  to  be  enforced  to  their 
prejudice.  Our  statute  recognizes  and  adopts  this  long  and  well- 
settled  rule  in  equity,  by  requiring  the  court  decreeing  a  divorce  to 
have  principally  in  view  the  interest  and  welfare  of  the  children  in 
making  orders  for  their  care  and  custody.  The  children  whose  care 
and  custody  the  court  awarded  to  appellee  are  both  females,  and  are 
aged  ten  and  five  years  respectively ;  and  it  is  proper  they  should  be 


4i6  Kentucky  Opinions. 

with  their  mother,  whose  care  and  watchfulness  cannot  be  supplied 
by  the  father,  who,  as  the  evidence  shows,  is  a  physician,  and  neces- 
sarily much  from  home,  and  who  is  without  any  one  residing  with 
him  to  nurture  and  care  for  the  children  in  his  absence.  The  evi- 
dence shows  the  mother  to  be  a  fit  person  to  have  the  care  and  control 
of  them;  while  the  facts  disclosed  by  the  record  lead  us  to  doubt 
whether  the  appellant,  as  he  is  situated,  would  be  a  suitable  person 
to  raise  them  in  a  proper  manner.  Certainly  it  was  not  to  their  inter- 
est to  take  them  from  their  mother  and  send  them  to  reside  with  the 
appellant,  where,  as  far  as  appears  from  the  evidence,  they  would  be 
without  a  protector  in  his  absence.  The  court  will  at  all  times  have 
power  to  make  additional  orders  if  it  should  become  necessary  to  do 
so  in  order  to  enable  the  appellant  to  see  his  children  as  often  as 
would  be  just  to  him  and  them,  and  may  at  any  time,  if  their  interest 
should  require  it,  give  them  into  the  custody  of  their  father.  This 
constant  power  of  the  court  over  the  children  is  ample  to  secure  his 
rights,  if  at  any  time  the  mother  should  disregard  the  order  already 
made  by  the  chancellor,  which  is  as  specific  as  the  nature  of  the  case 
enabled  him  to  make  it. 
Judgment  affirmed, 

G.  IV,  Craddock,  for  appellant, 
L.  Hord,  for  appellee. 


John  W.  Finnell  z\  Simon  VanArsdall. 

Damages— Personal  Injury — Pleading  Defense — Recovery. 

In  a  suit  for  damages  on  account  of  assault  and  battery,  where  the 
defendant  raised  no  issue  by  his  answer  except  the  amount  of  dam- 
ages, it  was  not  error  for  the  court  to  refuse  an  instruction  except  as 
to  the  measure  of  damages. 

Recovery. 

A  party  may  recover  exemplary  damages  without  averring  malice, 
in  an  action  for  an  unlawful  injury  to  the  person. 

APPEAL  FROM  MERCER  CIRCUIT  COURT. 

March  8,  1875. 

Opinion  by  Juekse  Lindsay  : 

The  answer  filed  by  appellant,  and  upon  which  he  went  to  trial, 
presented  no  defenses  to  the  action,  and  raised  no  issue  except  as 


Herman  Haskamp's  Ex'x  v,  S.  J.  Walker,  et  al.        417 

to  the  measure  of  damages.  It  contains  no  statement  that  at  the  time 
he  struck  appellee,  he  had  unlawfully  set  upon  him,  nor  that  he  had 
then  and  there  threatened  violence,  and  exhibited  an  intention  to 
set  upon  him,  having  a  present  ability  to  carry  the  threat  into  execu- 
tion. If  appellant  merely  used  force  to  repel  force,  he  knew  the  fact 
to  exist  from  the  beginning,  and  should  have  pleaded  it. 

The  court  did  not  abuse  a  sound  discretion,  in  refusing  to  allow 
the  amendment  to  be  filed.  It  recites  no  circumstance  that  was  not 
known  to  appellant  when  he  answered,  and  no  excuse  was  offered  for 
the  delay  in  setting  up  the  circumstances  therein  detailed.  Besides, 
the  amendment  violates  the  rules  of  pleading,  by  giving  a  history  of 
the  difficulty  between  the  parties  from  its  inception,  instead  of  setting 
up  the  facts  constituting,  or  supposed  to  constitute  grounds  for 
defense. 

The  instructions  given  the  court  could  not  have  prejudiced  ap- 
pellant. His  guilt  stood  confessed,  and  he  had  no  right  to  ask  in- 
structions except  as  to  the  measure  of  damages.  The  law  upon  this 
subject  was  correctly  g^ven  to  the  jury.  A  party  may  recover  exem- 
plary damages  without  averring  malice,  in  an  action  for  an  unlawful 
injury  to  the  person.  The  circumstances  under  which  it  was  inflicted 
may  go  to  the  jury,  and  be  considered  in  fixing  the  amount  of  the 
recovery. 

We  see  no  reversible  error  in  the  case  before  us. 

Judgment  affirmed. 

Kyle  &  Poston,  for  appellant, 

J.  B.  &  P,  B,  Thompson,  T.  C.  Bell,  for  appellee. 


Herman  Haskamp's  Ex'x  v.  S.  J.  Walker,  et  al. 

Citie»— Improvement  of  Sidewalks — Cost  of  Improvements. 

The  city  is  liable  for  the  cost  of  public  improvements,  where  a  tax 
on  adjoining  property  has  not  been  legally  imposed. 

Improvement  of  Sidewalks. 

The  city  has  power  to  make  either  the  original  construction  or  the 
repairs  of  sidewalks  a  charge  on  the  adjacent  property. 

Cost  of  Improvements. 

The  entire  cost  of  original  construction  is  to  be  apportioned  upon 
all  the  lots  fronting  such  improvement*  but  the  cost  of  repairs  is  to  be 
assessed  separately  so  that  each  lot  will  be  chargeable  with  the  cost 
of  the  repairs  done  on  its  own  front,  without  reference  to  the  cost  of 
repairs  in  front  of  other  lots. 

27 


4i8  Kentucky  Opinions. 

APPEAL  FROM  KENTON  CIRCUIT  COURT. 

March  8,  1875. 

Opinion  by  Judge  Cofer: 

When  this  case  was  in  this  court  on  the  appeal  of  the  city,  we  held, 
that  it  did  not  appear  from  the  petition  that  the  owners  of  property 
were  not  Hable,  and  as  the  contract  between  the  appellant's  testator 
and  the  city  stipulated  that  if  a  tax  was  levied  in  accordance  with  the 
charter,  on  the  property  in  front  of  which  the  work  was  done,  he 
would  receive  such  assessment,  and  collect  the  tax  in  full  satisfaction 
for  the  work.  We  hold  that  in  order  to  make  the  city  liable,  it  should 
appear  from  the  petition  that  the  tax  had  not  been  legally  imposed, 
and  as  this  did  not  appear,  the  demurrer  of  the  city  should  have  been 
sustained. 

It  does  not  necessarily  follow,  however,  because  the  petition  did 
not  show  a  cause  of  action  against  the  city,  that  it  was  good  as  against 
the  owners  of  lots.  But  we  are  of  opinion  that  the  petition  presents 
a  case  upon  which,  nothing  else  appearing,  the  lot  owners  are  liable. 
That  the  city  council  had  power  to  make  either  the  original  construc- 
tion or  the  repairs  of  sidewalks  a  charge  on  the  adjacent  property  is 
clear,  the  only  question  made  being  whether  that  power  has  been 
effectually  exercised. 

Section  8  of  the  city  charter  defines  the  manner  in  which  contracts 
and  assessments  shall  be  made  for  the  original  construction  of  side- 
walks, and  Sec.  9  prescribes  the  mode  in  which  repairs  shall  be  or- 
dered, and  the  manner  of  assessing  the  cost  against  the  adjacent 
property.  The  cost  of  the  original  construction  of  sidewalks  is  re- 
quired to  be  apportioned  among  the  owners  of  lots  fronting  thereon, 
unless  such  owners  shall  do  the  work  within  the  time  and  in  the  man- 
ner prescribed.  In  respect  to  repairs  the  charter  provided  that  when- 
ever the  sidewalks  shall  be  out  of  repair,  the  council  shall  have  power 
to  order  and  direct  the  same  to  be  repaired  at  the  expense  of  the 
owner  of  lots  opposite  to  the  places  where  the  repairs  shall  be  made. 

Under  these  provisions,  it  would  seem  that  the  entire  cost  of  the 
original  construction  is  to  be  apportioned  upon  all  the  lots  fronting 
such  improvement,  but  the  cost  of  repairs  is  to  be  assessed  separately, 
so  that  each  lot  will  be  chargeable  with  the  cost  of  the  repairs  done 
on  its  own  front,  without  reference  to  the  cost  of  repairs  in  front  of 
other  lots. 

The  ordinance  under  which  the  appellant's  testator  did  the  work 


W.  G.  Kirk  v,  John  Reynolds.  419 

which  gave  rise  to  this  litigation  seems,  from  some  of  its  language, 
to  have  been  intended  to  embrace  both  repairs  and  original  construc- 
tion ;  but  in  providing  for  paying  the  cost  of  the  work,  in  th€  event 
it  was  not  done  by  the  owners  of  lots,  it  directed  that  it  should  be 
done  at  the  cost  of  the  owners  of  lots  fronting  on  the  work,  to  be  ap- 
portioned among  them  according  to  the  number  of  front  feet  owned 
by  each. 

As  the  council  had  no  power  thus  to  apportion  the  cost  of  repairs 
required  to  be  done,  but  had  such  power  as  to  new  work,  we  must,  in 
the  absence  of  anything  in  the  record  showing  that  the  work  sued 
for  was  repairs,  presume  that  it  was  done  in  making  new  sidewalks, 
and  therefore  that  the  ordinance  was,  to  that  extent,  under  Sec.  2, 
Act  of  February  24,  1865,  valid,  and  that  appellees  are  liable,  under 
the  ordinance,  for  that  cost  of  the  work  done  in  front  of  their  lots,  if 
in  fact  the  testator  did  the  work  in  constructing  new,  and  not  in 
repairing  old  sidewalks. 

We  are,  therefore,  of  the  opinion  that  the  petition  stated  facts 
constituting  a  cause  of  action  against  the  owners  of  lots,  and  that  the 
appellant  has  a  lien  on  the  lots  to  secure  the  payment  of  her  debt,  un- 
less it  shall  turn  out  that  the  claim  is  for  repairs. 

The  judgment  dismissing  the  appellant's  petition  on  demurrer,  as 
to  Walter  and  Martin,  is  reversed,  and  the  same  is  remanded  with 
directions  to  overrule  their  demurrer,  and  to  allow  either  party  to 
amend  their  pleadings  within  a  reasonable  time,  and  for  further  pro- 
ceedings not  inconsistent  with  this  opinion. 

R.  Simmons,  Ira  Julian,  for  appellant. 

Fisk  &  Fisk,  for  appellees. 


W.  G.  Kirk  v.  John  Reynolds. 

Suit  on  Contract — Specific  Execution — Tender  of  Deed. 

Where  a  suit  is  brought  for  a  speciflc  execution  of  contract  and  the 
petition  shows  plaintiff  Is  not  in  a  condition  to  perform  his  part  of  it, 
and  fails  to  aver  that  he  has  the  legal  title  to  the  land,  or  tenders  a 
deed  to  his  vendee,  such  suit  must  fall. 

APPEAL  FROM  ESTILL  CIRCUIT  COURT. 

March  9,  1875. 

Opinion  by  Judge  Peters: 

The  pleadings  in  this  case  do  not  authorize  the  judgment  rendered. 


4^0  Kentucky  Opinions. 

The  plaintiff  below  expressly  charges  in  his  petition  that  his  contract 
for  the  purchase  of  the  land  was  only  executory  with  G.  W.  Howell, 
whose  title  to  the  land  was  possessory.  Having  had  the  continuous 
adverse  possession  for  more  than  twenty  years,  he  further  avers  that 
G.  W.  Howell  is  dead,  and  the  legal  title  to  the  land  was  at  the  time 
in  the  heirs  of  said  Howell,  all  of  whom  are  made  defendants,  and 
through  whom  he  seeks  to  perfect  his  title. 

Moreover,  he  avers  that  the  price  he  agreed  to  pay  Howell  for  the 
land  was  $225,  of  which  sum  he  paid  down  $200,  the  remaining  $25 
to  be  paid  when  a  title  was  made  to  him  for  the  land.  And  he  neither 
alleges  that  the  title  had  ever  been  made  to  him,  nor  that  he  had  paid 
the  residue  of  the  purchase  money.  There  is  some  evidence  in  the 
cause  conducing  to  prove  that  he  paid  all  the  purchase  money ;  but 
such  evidence  of  payment,  without  a  direct  averment  to  that  effect, 
is  wholly  unavailable.  A  commissioner's  deed  purporting  to  convey 
the  title  of  Howell's  heirs  to  appellee,  Reynolds,  is  found  in  the 
papers ;  but  there  is  no  allegation  in  the  petition  that  the  legal  title 
had  been  conveyed  to  Reynolds ;  nor  is  there  any  mention  made  of  the 
existence  of  such  a  deed  in  the  pleadings.  Even,  therefore,  if  the 
deed  was  effectual  to  pass  the  legal  title  to  Reynolds  (a  question  we 
do  not  decide),  before  Reynolds  could  use  the  deed  to  show  the  fact, 
he  must  allege  that  he  has  the  title. 

But  there  is  still  another  fatal  objection  to  the  judgment.  Reynolds 
brought  this  suit  for  a  specific  execution  of  the  contract  and  he  shows 
by  his  own  peition  that  he  was  not  in  a  condition  to  perform  his  part 
of  it,  and  never  avers  he  has  the  legal  title  to  the  land,  or  tenders  a 
deed  to  his  vendee,  which,  as  has  been  repeatedly  decided  by  this 
court,  he  must  do  before  he  can  ask  the  chancellor  to  help  him,  and 
enforce  his  lien.  Wherefore  the  judgment  is  reversed  and  the  cause 
is  remanded  for  further  proceedings.  Reynolds  should  be  allowed 
to  amend  his  pleadings,  and  on  his  failure  to  do  so  in  reasonable 
time  his  petition  should  be  dismissed. 

/.  B,  White,  for  appellant. 


A.  W.  Routt's  Adm'r.  z/.  W.  W.  Berry. 

Justice  of  the  Peace— Jurisdiction  in  Appeal  from  Justice. 

Where  the  amount  sought  to  be  recovered  in  a  justice  court  is  only 
111.60  the  circuit  court  has  no  Jurisdiction  to  entertain  an  appeal 


A.  W.  Routt's  Adm'r  v,  W.  W.  Berry.  421 

APPEAL.  FROM  BATH  CIRCUIT  COURT. 

March  10.  1875. 

Opinion  by  Judge  Peters  : 

This  action  was  commenced  by  warrant  from  a  justice  of  the 
peace,  by  which  appellee  was  summoned  "to  answer  a  claim  of  A. 
W.  Routt,"  the  holder  of  an  order  amounting  to  $11.60,  and  judg- 
ment having  been  rendered  against  the  defendant  in  the  warrant, 
he  appealed  to  the  quarterly  court.  He  was  imsuccessful  in  the 
quarterly  court,  and  appealed  to  the  circuit  court,  where  he  suc- 
ceeded, and  this  appeal  is  now  prosecuted  by  the  personal  repre- 
sentative of  the  plaintiff  in  the  warrant,  he  having  died  intestate 
since  the  action  was  commenced. 

It  appears  in  the  record  that  the  original  warrant  was  amended 
by  inserting  the  words  "amounting  to  fifty  dollars  for  balance  on 
wheat."  When  this  amendment  was  made  is  not  satisfactorily 
shown,  but  it  was  made  before  the  trial  in  the  justice  court,  for  an 
account  was  filed  by  appellant  against  appellee  for  $50  balance  on 
wheat. 

In  Burbage  v,  Sqmres,  3  Met.  yy,  this  court  held,  upon  the  trial 
of  the  appeal,  the  cause  of  action  must  be  the  same  as  that  expressed 
in  the  warrant,  and  it  must  be  a  cause  of  action  over  which  the 
justice  had  jurisdiction.  In  this  case  it  will  be  conceded  that  the 
cause  of  action  for  the  increased  demand  set  forth  by  the  amend- 
ment in  the  warrant  was  one  over  which  the  justice  had  jurisdiction. 
But  was  it  the  same  cause  of  action  as  that  set  out  in  the  original 
warrant?  We  think  not.  The  action  was  founded  on  an  order 
having  the  characteristics  of  a  domestic  bill  of  exchange,  and  to 
hold  the  drawer  and  endorsers  responsible,  the  holder  must  use 
due  diligence  in  presenting  it  for  payment,  and  notice  of  nonpayment 
should  be  given  to  the  parties.  When  the  action  on  the  order  was 
abandoned  and  a  recovery  sought  on  an  account  for  wheat  sold  and 
delivered,  the  original  cause  of  action  was  changed. 

As,  therefore,  the  amount  demanded  in  the  original  warrant  was 
the  matter  in  controversy,  and  that  being  less  than  fifty  dollars,  the 
court  has  no  jurisdiction  of  the  case. 

Wherefore  the  appeal  is  dismissed, 

Nesbitt  &  Cudgel,  for  appellant, 
Reid  &  Stone,  for  appellee. 


422  Kentucky  Opinions. 

Virgil  Hewett,  et  al.,  v.  Louisville  &  Nashville  R.  Co. 

Surety  Bonds — Liability  of  Sureties — False  Representations  of  Holders 
of  Bonds. 

Sureties  to  a  corporation  for  the  good  conduct  and  fidelity  of  an 
officer  through  whoae  hands  Its  moneys  are  to  pass,  are  to  be  treated 
with  entire  good  faith,  and  where  such  corporation,  knowing  that  its 
bonded  oflloer  is  failing  to  account  for  its  money,  in  answer  to  in- 
quiries of  the  bondsmen  represent  that  the  money  is  being  accounted 
for,  it  cannot  recover  on  such  bond  for  defalcations  occurring  after 
such  reprentations  were  made. 

APPEAL  FROM  HARDIN  CIRCUIT  COURT. 

March  10,  1875. 

Opinion  by  Judge  Lindsay  : 

The  court  below  erred  in  refusing  to  allow  appellants  to  file  that 
portion  of  their  amended  answer  offered  August  20,  1874,  that  pur- 
ported to  amend  paragraph  No.  4  of  their  original  answer. 

They  therein  directly  aver  that  on  the  26th  of  June,  1872,  they 
applied  to  the  railroad  company  for  information  as  to  the  state  of 
the  accounts  of  Morris,  and  that  the  company  then  fraudulently 
represented  to.  them  that  his  accounts  were  correct,  and  that  he 
was  ahead  on  his  payments  to  the  company.  They  aver  that  at  this 
time  appellee  knew  that  Morris  was  indebted  to  it,  and  that  this 
fact  was  fraudulently  concealed  from  them  because  the  railroad 
company  desired  to  keep  him  in  its  employment.  If  these  aver- 
ments are  true,  the  company  not  only  committed  a  fraud  in  mis- 
representing the  true  state  of  Morris'  accounts,  but  was  also  guilty 
of  a  fraud  on  his  sureties,  by  retaining  him  in  office  after  it  dis- 
covered that  he  was  not  paying  over  the  moneys  received  by  him 
as  agent,  in  the  manner  and  at  the  time  required  by  the  terms  and 
condition  of  his  employment. 

Sureties  are  at  all  times  to  be  treated  with  good  faith,  and  espe- 
cially is  that  the  case  where  they  are  sureties  to  a  corporation  for 
the  good  conduct  and  fidelity  of  an  officer,  through  whose  hands  its 
moneys  are  to  pass,  i  Story's  Equity  Jurisprudence,  Sec.  215; 
Graves  v.  Lebanon  Bank,  Mss.  Opinion. 

When  a  corporation  discovers  that  one  of  its  bonded  officers  is 
misappropriating,  or  failing  to  account  for  moneys  coming  to  his 
hands,  it  cannot  remain  passive  and  rely  for  indemnity  for  future 
peculations  upcxi  the  insolvency  of  his  sureties.     Good  faith  and 


Henry  Fishback  v,  Sullivan  &  Burton.  423 

common  honesty  require  that  it  shall  at  once  remove  him  from  office. 
If  it  fails  to  do  so,  it  is  as  much  guilty  of  a  fraud  upon  his  sureties 
as  if,  before  they  became  his  bondsmen,  it  had  concealed  from  them 
the  fact  that  \\/t  had  therefore  been  guilty  of  like  conduct,  under 
similar  circumstances.  If  the  company  was  guilty  of  the  fraud 
charged  in  this  amendment,  it  cannot  recover  for  any  moneys  that 
came  to  the  hands  of  Morris  after  June  26,  1872. 

For  the  error  in  refusing  to  allow  the  amendment  to  be  filed,  the 
judgment  must  be  reversed.  We  perceive  no  other  error  in  the  pro- 
ceeding in  the  lower  court.  The  cause  is  remanded  with  instruction 
to  grant  a  new  trial,  and  for  further  proceedings  not  inconsistent 
with  this  opinion. 

Judge  Cofer  did  not  sit  in  this  case. 

Brown  &  Murray,  for  appellants. 
W.  H.  Chelf,  L,  Cook,  for  appellee. 


He^nry  Fishback  v.  Sullivan  &  Burton. 

Real  Estate  Conveyance — Representations — Relief. 

Where  two  grantors  being  children  of  an  intestate  from  whom  they 
inherited  land,  sell  and  convey  the  same  to  an  innocent  purchaser,  and 
represent  to  him  that  a  third  heir,  who  would  have  an  interest  in  the 
land  if  living,  is  in  fact  dead,  when  Ite  is  alive,  such  purchaser  is  en- 
titled to  a  credit  of  one-third  of  the  purchase  price  and  should  be  al- 
lowed to  retain  it  as  indemnity  against  the  claim  of  the  absent  heir, 
or  else  to  have  the  contract  of  purchase  rescinded. 

APPEAL  FROM  BOURBON  CIRCUIT  COURT. 

March  11,  1875. 

Opinion  by  Judge  Lindsay: 

The  deed  of  conveyance  from  Julia  O'Bryan  and  John  F.  O'Bryan, 
purports  to  convey  to  Fishback  the  fee  simple  title  to  the  whole  of 
the  tract  or  parcel  of  land  therein  described. 

Fishback  swears,  and  all  the  testimony  touching  that  subject  tends 
to  show,  that  at  the  time  he  accepted  the  deed  it  was  represented  to 
him  that  O'Bryan,  who,  if  alive,  is  one  of  the  heirs  at  law  of  Mrs. 
Honey,  was  then  dead,  or  that  he  had  been  absent  from  the  state, 
and  had  not  been  heard  from  for  more  than  seven  years.  Fishback 
avers  in  his  cross-petition  that  neither  of  these  statements  were 
true ;  that  Michael  O'Bryan  is  still  alive,  and  hence  that  he  acquired, 


424  Kentucky  Opinions. 

under  the  conveyance,  title  to  only  two-thirds  of  the  parcel  of  land. 
He  further  asserts,  and  there  is  nothing  proved  to  the  contrary, 
that  he  purchased  the  land  and  paid  out  his  money,  in  good  faith, 
and  without  notice  of  the  alleged  frauds,  by  and  through  which  Mrs. 
Honey  became  invested  with  the  title.  He  prayed  either  that  he  be 
credited  by  one-third  of  the  purchase  price  agreed  to  be  paid,  and 
allowed  to  retain  it  as  indemnity  against  the  claim  of  Michael 
O'Bryan,  or  else  that  the  contract  of  purchase  be  rescinded  upon 
equitable  terms. 

It  is  proved  that  both  the  grantors  in  the  deed  are  insolvent.  It 
is  not  proved  that  Michael  O'Bryan  is  dead,  nor  that  he  has  been 
absent  from  the  state,  without  being  heard  from  for  more  than 
seven  years.  It  is  evident  that  appellees,  Sullivan  and  Burton,  both 
believe  that  he  is  still  alive,  as  they  each  made  him  a  party  to  their  . 
action,  and  proceed  against  him  by  constructive  service  of  process. 
In  such  a  state  of  case  it  is  manifest  that  Fishback  is  entitled  to 
some  character  of  relief.  If  the  appellees,  Sullivan  and  Burton,  see 
proper  to  permit  the  sale  by  the  two  O'Bryans  to  Fishback  to  stand, 
then  they  cannot  object  to  allowing  him  credit  for  the  one-third  of 
the  amount  agreed  to  be  paid  for  the  whole  property,  they  being 
allowed  to  subject  the  remainder  of  the  purchase  money,  and  also 
the  one  undivided  one-third  of  the  realty,  to  the  payment  of  their 
claims. 

If  they  insist  on  subjecting  the  whole  property,  then  they  must 
allow  Fishback  to  have  a  rescission  of  the  contract  of  purchase,  and 
consent  that  after  satisfying  such  rents  as  may  have  accrued  against 
him,  he  shall  have  judgment  for  the  amount  paid  on  the  purchase, 
with  interest,  and  that  he  shall  have  a  prior  lien  on  a  two-thirds  un- 
divided interest  in  the  property  to  secure  the  payment  of  his  claim. 

There  is  not  a  shadow  of  doubt  that  the  property  was  purchased 
and  paid  for,  to  the  extent  that  the  amount  agreed  to  be  paid  to 
Clay  was  satisfied  by  the  debtor.  Honey,  and  that  he  caused  it  to 
be  conveyed  to  his  wife  to  protect  it  against  the  claims  of  his  credit- 
ors. The  right  of  appellees  to  subject  it,  or  its  proceeds,  to  the 
payment  of  their  claims,  cannot,  therefore,  be  questioned,  but  in 
enforcing  their  rights,  they  cannot  disregard  the  rights  of  Fishback, 
who,  as  before  stated,  is  an  innocent  purchaser. 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
not  inconsistent  with  this  opinion. 

Thonias  Kennedy,  for  appellant. 

R,  H,  Hanson,  Paton,  for  appellees. 


Moore  &  Mason  v.  Isaac  Sparks.  425 

Moore  &  Mason  v.  Isaac  Sparks. 

Public  Highways — ^Established  by  User — Obstruction — Injunction. 

A  passway  may  become  a  public  highway  by  continuous  and  unin- 
terrupted use  by  the  public. 

Obstruction— Injunction. 

One  who  uses  a  public  highway  cannot  enjoin  its  obstruction  unless 
he  is  able  to  show  a  special  injury  to  himself,  and  he  is  then  entitled 
to  relief,  not  because  a  public  highway  has  been  obstructed,  but  be- 
cause of  the  special  and  peculiar  damages  he  sustains. 

appeal  from  jessamine  circuit  court. 

March  11,  1875. 

Opinion  by  Judge  Lindsay  : 

Appellee  states  in  his  petition  that  he  and  his  grantors  have  held 
and  used  the  passway  in  controversy,  and  the  land  covered  by  it, 
adversely  to  the  pretended  title  of  the  appellants,  for  nearly  forty 
years  last  past  before  the  commencement  of  this  action,  and  under 
a  claim  of  title  in  fee,  exclusive  of  any  other  right.  He  does  not 
pretend  in  his  testimony  that  his  grantors  sold  and  conveyed  to  him, 
in  express  terms,  a  right  to  pass  over  this  land.  If  he  acquired  the 
right  to  a  passway  under  his  purchase,  he  took  it  as  an  appurte- 
nance to  the  lands  purchased.  Appellants'  statements  in  their  deposi- 
tion are  irreconcilable  with  the  idea  that  the  alleged  passway  is  or 
ever  was  a  private  passway,  held  and  owned  by  him  alone.  He 
says  that  commencing  nearly  forty  years  ago,  the  public  used  the 
passway  for  fifteen  or  twenty  years  in  conjunction  with  himself;  that 
although  the  people  of  the  neighborhood  did  not  take  sufficient  inter- 
est in  the  road  to  aid  in  its  repair,  they  and  the  public  used  it  as  well 
as  himself ;  and  that  they  used  it  without  permission  from  him,  and 
whenever  they  pleased,  and  had  done  so  for  years.  He  says  that 
"no  person  seemed  to  set  up  any  claim  to  it,  nobody  claimed  it,  or 
asserted  any  right  to  it ;  no  one  was  exercising  any  control  of  it.  I 
suppose  it  had  been  used  as  a  public  road,  and  they  just  assumed 
control  without  opposition." 

The  proof  shows  that  the  passway  was  kept  in  repair  by  the 
voluntary  action  of  parties  interested  in  passing  over  it,  but  that 
the  most  of  the  repairs  have  been  made  by  appellee.  It  is  evident, 
however,  that  he  had  no  greater  right  to,  or  larger  interest  in  the 
road  than  any  other  person  who  saw  prof>er  to  use  it.  Th^  weight 
of  the  testimony  offered  by  appellee  is  to  the  effect  that  it  was  re- 


426  Kentucky  Opinions. 

garded  as  a  public  road,  and  that  it  had  been  so  long  located,  and 
its  borders  so  well  defined  that  a  dedication  of  the  right  of  way  to 
the  public  might  be  implied.  If  such  is  the  case,  appellee  had  no. 
greater  right  to,  or  interest  in  the  passway  than  any  other  indi- 
vidual. Appellants,  by  fencing  it  up,  committed  a  public  nuisance, 
and  they  cannot  be  restrained  at  the  suit  of  a  private  individual, 
unless  the  complainant  is  able  to  show  a  special  injury  to  himself,  and 
he  is  then  entitled  to  relief,  not  because  a  public  highway  has  been 
obstructed,  but  on  account  of  the  special  and  peculiar  damages  in- 
flicted upon  him  by  its  obstruction.  Angell  on  Highway,  Sec.  285. 
The  fact  that  one  travels  the  road  frequently  and  is  greatly  inccMi- 
venienced  by  the  obstruction  will  not  authorize  an  injunction  in  the 
absence  of  some  special  injury.  High  on  Injunction,  Sec.  528; 
McCown,  et  aL,  v.  Whitesides,  31  Ind.  235;  Barr  &  Yeiser  v.  Stev- 
ens, et  al.,  I  Bibb  292. 

The  only  ground  of  complaint  established  by  appellee  is  that  the 
obstruction  of  the  road  subjects  him  to  the  inconvenience  of  having 
frequently  to  travel  an  increased  distance.  As  we  have  already  said, 
this  inconvenience  does  not  constitute  a  ground  for  the  intervention 
of  the  chancellor.  Judgment  reversed  and  cause  remanded  with  in- 
structions to  dissolve  the  injunction  and  to  dismiss  the  petition. 

/.  5".  Bronough,  J.  B.  Huston,  for  appellants, 
B.  F.  Buckner,  for  appellee. 


Amanda  D.  Drake  v,  Thomas  Bradly. 


Husband  and  Wife— Estate  of  Wife— Liability  of  to  Pay  Debts. 

A  wife's  general  estate  is  not  liable  for  the  debts  of  the  husband, 
but  is  liable  for  those  of  the  wife  incurred  before  marriage,  and  for 
those  contracted  after  marriage  on  account  of  the  purchase  of  neces- 
saries for  herself  or  any  member  of  her  family,  her  husband  included, 
as  shall  be  evidenced  by  writing  signed  by  herself  and  husband. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

March  12,  1875. 

Opinion  by  Judge  Peters  : 

The  antenuptial  deed  of  Drake  to  appellant  did  not  convert  her 
property  into  separate  estate.  The  only  effect  it  could  have  was  to 
deprive  him  of  the  right  he  might  otherwise  have  acquired  by  his 
marriage  with  the  grantee ;  and  by  Art.  2,  Chap.  47,  Rev.  Stat.,  her 


Mary  Vallandingham,  et  al.,  v.  G.  B.  Igo.  427 

general  estate  is  not  liable  for  the  debts  of  the  husband  contracted 
before  or  after  marriage,  but  is  liable  for  those  of  the  wife  incurred 
or  contracted  before  marriage,  and  for  such  contracted  after  mar- 
riage on  account  of  necessaries  for  herself  or  any  member  of  her 
family,  her  husband  included,  as  shall  be  evidenced  by  writing  signed 
by  herself  and  her  husband. 

Appellees  account  is  for  goods  sold  to  the  husband  and  charged 
by  his  directions  to  his  wife;  and  while  the  articles  charged,  or 
the  most  of  them,  may  have  been  necessaries,  still,  as  appellant  never 
undertook  to  pay  for  said  goods  in  writing  with  her  husband,  her 
estate  is  not  liable  for  the  debt  of  appellee. 

Wherefore  the  judgment  is  reversed  and  the  cause  is  remanded 
with  direction  for  further  proceedings  consistent  herewith. 

Morton  &  Parker,  for  appellant, 
H.  B.  Higgins,  for  appellee. 


Mary  Vallandingham,  et  al.,  v.  G.  B.  Igo. 

Practice — ^Pleading — Evidence. 

Where  In  an  action  for  collection  of  a  debt  pasrment  is  not  pleaded 
as  a  defense,  evidence  of  payment  is  not  admissible. 

APPEALi  FR(5m  FAYETTE  CIRCUIT  COURT. 

March  12,  1875. 

Opinion  by  Judge  Cofer  : 

The  record  of  the  suits  in  the  name  of  Christian  were  not  admis- 
sible as  evidence  against  the  appellant.  In  the  first  case  there  was 
non  suit,  and  the  record  under  the  issue  made  in  the  pleadings  was 
not  competent  evidence  for  any  purpose  whatever.  The  second  case 
was  dismissed  on  motion  of  Christian,  and  he  had  leave  to  withdraw 
the  note,  which  shows  that  there  was  no  decision  on  the  merits. 
Harris  v.  Tiffany  &  Co,,  8  B.  Mon.  225.  This  record  did  not,  there- 
fore, support  the  plea  in  bar,  and  should  not  have  been  allowed  to  go 
to  the  jury,  and  especially  with  an  intimation  from  the  court  that 
it  was  prima  facie  evidence  that  the  debt  had  been  paid,  and  cast 
upon  the  appellant  the  burden  of  proving  that  it  had  not  been  paid. 

The  appellee  did  not  plead  payment,  and  evidence  of  payment  is 
therefore  inadmissible;  and  if  pa)rment  had  been  pleaded,  we  are 


428  Kentucky  Opinions. 

unable  to  perceive  that  the  record  would  have  tended  to  establish 
such  a  defense. 

The  court  also  erred  in  instructing  the  jury  that  if  they  found 
from  the  evidence  that  by  any  arrangement  between  Berkley  and 
defendant  the  note  had  been  satisfied  and  discharged,  they  should 
find  for  the  defendent.  There  was  no  issue  authorizing  such  an  in- 
struction. The  second  instruction  given  at  the  instance  of  the  ap- 
pellee correctly  defined  the  law  to  the  jury. 

The  facts  relied  upon  in  the  answer,  so  far  as  Mrs.  Vallanding- 
ham  was  effected  by  them,  were  defensive  only ;  and  the  statute  of 
limitation  could  not  operate  to  deprive  the  appellee  of  his  defense. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial. 

/.  R.  Morton,  for  appellants. 
J.  B,  Huston,  for  appellee. 


Henry  Kramer  v.  Commonwealth. 

Criminal  Law — Homicide — Threats— Evidence  of  Bruises  on  Defendant 
— Evidence — Self-Defense  Defined. 

In  a  charge  of  murder  where  threats  have  been  made  by  the  de- 
ceased against  the  life  of  the  defendant  and  some  of  them  communi- 
cated to  defendant,  all  are  admissible  as  evidence. 

Evidence  of  Bruises  on  Defendant 

In  a  charge  of  murder,  where  self-defenM  is  relied  upon,  evidence  of 
bruises  on  the  defendant  shortly  after  the  oftense  is  committed,  is 
admissible. 

Evidence. 

When  in  a  murder  trial  it  appears  that  a  short  time  before  the  kill- 
ing the  deceased  had  been  placed  under  bond  on  application  of  de- 
fendant, to  keep  the  peace  and  be  of  good  behavior  to  defendant,  the 
record  of  such  proceeding  is  admissible  to  show  the  tendency  of  de- 
fendant to  resort  to  the  law  rather  than  to  violence  and  because  It 
served  to  illustrate  the  character  of  deceased. 

Self-Defense. 

Under  the  defense  of  self-defense  in  a  murder  charge,  the  rule  is 
that  when  one  believes  and  has  reasonable  ground  to  believe  that  he 
is  in  danger  of  immediately  losing  his  life,  or  of  sustaining  great 
bodily  injury  at  the  hands  of  another,  he  has  a  right  to  do  whatever 
is  apparently  necessary  for  his  own  security.  He  must  act  rationally, 
in  view  of  all  the  facts  and  circumstances,  but  if  these  are  such  that 
there  is  no  other  apparent  safe  means  of  escaping  the  danger,  he 
may  legally  slay  his  adversary. 


Henry  Kramer  v.  Commonwealth.  429 

APPEAL  FROM  CAMPBELL  CIRCUIT  COURT. 

March  13,  1875. 

Opinion  by  Judge  Cofer: 

Henry  Kramer,  having  been  found  guilty  of  manslaughter  and 
adjudged  to  be  confined  in  the  penitentiary  for  twenty-one  years 
for  the  killing  of  his  brother,  Auguste  Kramer,  by  shooting  him 
with  a  shot  gun,  seeks  a  reversal  of  that  judgment. 

The  evidence  tended  to  prove  an  old  grudge  between  Henry  and 
Augfuste,  which  probably  originated  from  the  seduction  of  the  wife 
of  the  former  by  the  latter.  About  a  month  before  the  final  tragedy, 
Auguste  went  to  where  Henry  was  sitting  in  company  with  some 
ladies,  and  asked  to  borrow  his  accordeon;  and  being  told  by  his 
brother  that  it  was  broken,  he  said  it  was  not;  and  upon  Henry's 
repeating  the  statement,  Auguste,  in  a  rage,  said  to  him  that  if 
he  would  come  out  into  the  lane,  which  was  near  by,  he  would 
kill  him,  that  he  would  not  fight  him  in  the  yard,  but  if  he  would 
come  into  the  lane  he  would  fight  and  kill  him.  On  this  occasion 
the  conduct  of  Henry  was  passive,  and  gave  no  indication  of  a  pur- 
pose to  injure  his  brother,  or  to  even  engage  in  a  quarrel  with  him. 

On  the  day  of  the  homicide,  and  only  a  short  time  before  it  oc- 
curred, the  brothers  were  in  a  difficulty,  and  Auguste  was  about 
being  taken  to  prison  when  Henry  offered  to  take  him  home,  and 
induced  the  c^cer  not  to  arrest  him,  giving  as  a  reason  that  he  was 
then  under  bond  to  keep  the  peace.  When  they  reached  home  and 
were  at  the  supper  table,  a  quarrel  sprang  up  between  them,  but 
what  was  said  is  not  proved.  Their  mother,  who  seems  to  have 
been  the  only  other  person  present,  says  they  quarreled  in  English, 
and  being  a  German  she  could  not  understand  the  language  used. 
They  got  up  and  went  into  the  yard,  where,  as  the  mother  swears, 
Augeste  struck  Henry  with  a  broom  stick.  Very  soon  after  this 
Auguste  ran  to  the  house  of  a  neighbor  only  a  few  yards  distant 
and  asked  for  a  knife,  saying,  "Henry  will  not  fight  fair.  He  wants 
to  kill  me,  and  I  want  a  butcher  knife.  I  will  have  to  knife  him." 
But  failing  to  get  a  knife,  he  said  Henry  was  hurting  his  mother, 
and  started  and  ran  toward  the  house  where  Henry  and  his  mother 
were,  and  took  up  a  stone  as  he  went,  and  when  near  to  the  house, 
he  and  Henry  began  to  throw  stones  at  each  other.  Whether  there 
was  a  cessation  in  the  throwing  of  stones  before  the  shooting  does 
not  appear,  but  after  they  had  exchanged  throws,  Henry  seized  a 
shot  gun  and  shot  twice,  inflicting  one  or  more  wounds. 


43^  Kentucky  Opinions. 

After  evidence  had  been  offered  tending  to  prove  these  facts,  the 
appellant  proved  that  Auguste,  in  January  before  the  homicide  was 
committed,  had  threatened  to  kill  him,  but  that  the  threat  not  ap- 
pearing to  have  been  communicated  to  him,  the  evidence  that  it 
had  been  made  was  excluded,  and  an  exception  having  been  taken, 
that  action  of  the  court  is  now  called  in  question. 

In  Cornelius  v.  Commonwealth,  15  B.  Mon.  539,  the  prisoner 
proved  that  the  deceased  had  made  threats  against  him,  and  had 
tried  to  hire  persons  to  kill  him,  and  that  these  facts  had  been  com- 
municated to  him  before  the  killing  occurred.  He  then  offered  to 
prove  other  threats,  which  had  not  been  communicated ;  and  this  court 
held  that  the  evidence  should  have  been  admitted,  because  it  tended 
to  confirm  and  strengthen  the  other  evidence  of  threats.  We  are 
not  aware  that  the  soundness  of  this  rule  has  ever  been  called  in 
question,  and  we  adhere  to  it,  not  only  for  the  reason  then  given,, 
but  for  the  additional  reason  that  it  tends  to  show  the  persistent  dis- 
position of  the  deceased,  and  to  aid  the  jury  in  forming  a  more  cor- 
rect estimate  of  his  character,  and  of  the  danger  that  might  have 
been  apprehended  at  his  hands. 

The  same  witness  who  testified  to  the  threats  which  were  ex- 
cluded, also  testified  that  the  appellant,  when  placed  in  jail  on  the 
charge  of  murder,  had  bruises  on  his  head  and  arms ;  but  this  evi- 
dence was  also  excluded.  When  taken  in  connection  with  the  evi- 
(knee  of  Mrs.  Kramer,  the  testimony  as  to  bruises  on  the  person  of 
the  appellant  was  not  only  competent,  but  important,  and  should 
have  been  allowed  to  remain  before  the  jury.  » 

It  appears  that  in  January  before  he  was  killed,  Auguste  had 
been  arrested  on  a  warrant  sued  out  by  Henry,  and  placed  under 
bond  to  keep  the  peace  and  be  of  good  behavior  towards  Henry 
and  his  wife ;  and  the  record  of  that  proceeding  was  tendered  in  evi- 
dence, but  was  not  allowed  to  go  before  the  jury.  The  record  should 
have  been  admitted,  both  because  it  tended  to  show  a  disposition  on 
the  part  of  the  prisoner  to  resort  to  the  law  rather  than  to  violence, 
and  because  it  served  to  illustrate  the  character  of  the  deceased. 

Whether  the  recital  in  the  judgment  in  that  case  that  the  deceased 
had  threatened  to  do  violence  to  the  prisoner,  is  competent  evidence 
that  such  threats  had  actually  been  made,  is  not  so  clear;  and  if 
there  was  no  other  evidence  of  threats,  we  should  hesitate  to  admit 
that  part  of  the  record,  but  under  the  circumstances  of  tiiis  case, 
we  think  the  whole  should  have  gone  to  the  jury  to  have  such  weight 
as  they  thought  it  entitled  to. 


Henry  Kramer  v.  Commonwealth.  431 

The  instructions  asked  for  by  the  appellant  were  properly  re- 
fused, but  the  court  did  not  correctly  define  the  law  of  self-defense. 
The  instruction  on  that  subject  is  objectionable  in  two  respects.  The 
jury  were  told  that  self-defense  is  the  right  one  has,  when  without 
fault  himself,  he  is  attacked  by  another,  under  such  circumstances 
as  to  furnish  reasonable  grounds  for  apprehending  a  design  to 
take  his  life,  or  do  him  some  great  bodily  harm. 

It  is  not  every  fault  that  will  deprive  a  person  of  the  right  of 
self-defense.  Insulting  or  provc4cing  language  or  gestures  may  be 
faults,  but  clearly  do  not  deprive  the  person  using  the  language  of 
making  the  gestures  of  his  right  to  defend  himself  against  danger 
to  his  life  or  limb.  Nor  will  an  assault,  or  even  a  battery,  always 
have  this  effect.  If  A  assaults  B,  and  then  withdraws  in  good  faith 
from  the  encounter,  all  danger  of  a  renewal  of  the  assault  being  en- 
tirely passed,  and  B  then  attacks  A,  the  latter  may  lawfully  defend 
himself,  notwithstanding  his  antecedent  fault  in  making  the  first 
assault. 

The  use  of  the  words  "when  he  is  attacked,"  in  the  instruction, 
was  calculated  to  mislead  the  jury.  The  right  to  strike  in  the  de- 
fense of  one's  life  does  not  necessarily  depend  upon  his  having 
been  first  actually  attacked.  To  be  attacked  is  to  be  set  upon  with 
hostility  and  violence,  to  be  assaulted  or  assailed ;  and  the  language 
used  in  the  instruction  may  have  been  understood  by  the  jury  to 
mean,  as  it  literally  imports,  that  the  right  of  self-defense  depends 
upon  the  actual  doing  of  some  act  of  violence  to  the  person  of  the 
prisoner;  certainly  it  could  not  have  been  understood  to  mean  less 
than  that  no  such  right  could  exist  until  the  prisoner  was  assaulted. 
We  are  not  prepared  to  approve  a  definition  so  restricted.  There 
may  be  such  apparent  danger  of  immediate  death  or  serious  bodily 
injury  as  will  warrant  one  in  striking  or  shooting  in  self-defense, 
when  there  has  been  no  actual  attack. 

The  true  rule  is  that  when  one  believes,  and  has  reasonable  ground 
to  believe  that  he  is  in  danger  of  immediately  losing  his  life,  or  of 
sustaining  great  bodily  injury  at  the  hands  of  another,  he  has  a  right 
to  do  whatever  is  apparently  necessary  for  his  own  security;  he 
must  act  rationally,  in  view  of  all  the  facts  and  circumstances  sur- 
rounding him,  but  if  these  are  such  that  there  is  no  other  apparent 
and  safe  means  of  escaping  the  impending  danger,  he  may  slay  his 
adversary,  and  will  be  excusable. 

The  ninth  instruction  asked  for  by  the  appellant  assumes,  as  true 
facts,  that  which  the  jury  should  have  been  permitted  to  decide. 


43^  Kentucky  Opinions. 

After  evidence  had  been  offered  tending  to  prove  these  facts,  the 
appellant  proved  that  Auguste,  in  January  before  the  homicide  was 
committed,  had  threatened  to  kill  him,  but  that  the  threat  not  ap- 
pearing to  have  been  communicated  to  him,  the  evidence  that  it 
had  been  made  was  excluded,  and  an  exception  having  been  taken, 
that  action  of  the  court  is  now  called  in  question. 

In  Cornelius  v.  Commonwealth,  15  B.  Mon.  539,  the  prisoner 
proved  that  the  deceased  had  made  threats  against  him,  and  had 
tried  to  hire  persons  to  kill  him,  and  that  these  facts  had  been  com- 
municated to  him  before  the  killing  occurred.  He  then  offered  to 
prove  other  threats,  which  had  not  been  communicated ;  and  this  court 
held  that  the  evidence  should  have  been  admitted,  because  it  tended 
to  confirm  and  strengthen  the  other  evidence  of  threats.  We  are 
not  aware  that  the  soundness  of  this  rule  has  ever  been  called  in 
question,  and  we  adhere  to  it,  not  only  for  the  reason  then  given* 
but  for  the  additional  reason  that  it  tends  to  show  the  persistent  dis- 
position of  the  deceased,  and  to  aid  the  jury  in  forming  a  more  cor- 
rect estimate  of  his  character,  and  of  the  danger  that  might  have 
been  apprehended  at  his  hands. 

The  same  witness  who  testified  to  the  threats  which  were  ex- 
cluded, also  testified  that  the  appellant,  when  placed  in  jail  on  the 
charge  of  murder,  had  bruises  on  his  head  and  arms ;  but  this  evi- 
dence was  also  excluded.  When  taken  in  connection  with  the  evi- 
dence of  Mrs.  Kramer,  the  testimony  as  to  bruises  on  the  person  of 
the  appellant  was  not  only  competent,  but  important,  and  should 
have  been  allowed  to  remain  before  the  jury.  . 

It  appears  that  in  January  before  he  was  killed,  Auguste  had 
been  arrested  on  a  warrant  sued  out  by  Henry,  and  placed  under 
bond  to  keep  the  peace  and  be  of  good  behavior  towards  Henr}- 
and  his  wife ;  and  the  record  of  that  proceeding  was  tendered  in  evi- 
dence, but  was  not  allowed  to  go  before  the  jury.  The  record  should 
have  been  admitted,  both  because  it  tended  to  show  a  disposition  on 
the  part  of  the  prisoner  to  resort  to  the  law  rather  than  to  violence, 
and  because  it  served  to  illustrate  the  character  of  the  deceased. 

Whether  the  recital  in  the  judgment  in  that  case  that  the  deceased 
had  threatened  to  do  violence  to  the  prisoner,  is  competent  evidence 
that  such  threats  had  actually  been  made,  is  not  so  clear;  and  if 
there  was  no  other  evidence  of  threats,  we  should  hesitate  to  admit 
that  part  of  the  record,  but  under  the  circumstances  of  diis  case, 
we  think  the  whole  should  have  gone  to  the  jury  to  have  such  weight 
as  they  thought  it  entitled  to. 


Henry  Kramer  v,  Commonwe^xlth.  431 

The  instructions  asked  for  by  the  appellant  were  properly  re- 
fused, but  the  court  did  not  correctly  define  the  law  of  self-defense. 
The  instruction  on  that  subject  is  objectionable  in  two  respects.  The 
jury  were  told  that  self-defense  is  the  right  one  has,  when  without 
fault  himself,  he  is  attacked  by  another,  under  such  circumstances 
as  to  furnish  reasonable  grounds  for  apprehending  a  design  to 
take  his  life,  or  do  him  some  great  bodily  harm. 

It  is  not  every  fault  that  will  deprive  a  person  of  the  right  of 
self-defense.  Insulting  or  provoking  language  or  gestures  may  be 
faults,  but  clearly  do  not  deprive  the  person  using  the  language  of 
making  the  gestures  of  his  right  to  defend  himself  against  danger 
to  his  life  or  limb.  Nor  will  an  assault,  or  even  a  battery,  always 
have  this  effect.  If  A  assaults  B,  and  then  withdraws  in  good  faith 
from  the  encounter,  all  danger  of  a  renewal  of  the  assault  being  en- 
tirely passed,  and  B  then  attacks  A,  the  latter  may  lawfully  defend 
himself,  notwithstanding  his  antecedent  fault  in  making  the  first 
assault. 

The  use  of  the  words  "when  he  is  attacked,"  in  the  instruction, 
was  calculated  to  mislead  the  jury.  The  right  to  strike  in  the  de- 
fense of  one's  life  does  not  necessarily  depend  upon  his  having 
been  first  actually  attacked.  To  be  attacked  is  to  be  set  upon  with 
hostility  and  violence,  to  be  assaulted  or  assailed ;  and  the  language 
used  in  the  instruction  may  have  been  understood  by  the  jury  to 
mean,  as  it  literally  imports,  that  the  right  of  self-defense  depends 
upon  the  actual  doing  of  some  act  of  violence  to  the  person  of  the 
prisoner;  certainly  it  could  not  have  been  understood  to  mean  less 
than  that  no  such  right  could  exist  until  the  prisoner  was  assaulted. 
We  are  not  prepared  to  approve  a  definition  so  restricted.  There 
may  be  such  apparent  danger  of  immediate  death  or  serious  bodily 
injury  as  will  warrant  one  in  striking  or  shooting  in  self-defense, 
when  there  has  been  no  actual  attack. 

The  true  rule  is  that  when  one  believes,  and  has  reasonable  ground 
to  believe  that  he  is  in  danger  of  immediately  losing  his  life,  or  of 
sustaining  great  bodily  injury  at  the  hands  of  another,  he  has  a  right 
to  do  whatever  is  apparently  necessary  for  his  own  security;  he 
must  act  rationally,  in  view  of  all  the  facts  and  circumstances  sur- 
rounding him,  but  if  these  are  such  that  there  is  no  other  apparent 
and  safe  means  of  escaping  the  impending  danger,  he  may  slay  his 
adversary,  and  will  be  excusable. 

The  ninth  instruction  asked  for  by  the  appellant  assumes,  as  true 
facts,  that  which  the  jury  should  have  been  permitted  to  decide. 


43^  Kentucky  Opinions. 

After  evidence  had  been  offered  tending  to  prove  these  facts,  the 
appellant  proved  that  Auguste,  in  January  before  the  homicide  was 
committed,  had  threatened  to  kill  him,  but  that  the  threat  not  ap- 
pearing to  have  been  cc»nmunicated  to  him,  the  evidence  that  it 
had  been  made  was  excluded,  and  an  exception  having  been  taken, 
that  action  of  the  court  is  now  called  in  question. 

In  Cornelius  v.  Commonwealth,  15  B.  Mon.  539,  the  prisoner 
proved  that  the  deceased  had  made  threats  against  him,  and  had 
tried  to  hire  persons  to  kill  him,  and  that  these  facts  had  been  ccMn- 
municated  to  him  before  the  killing  occurred.  He  then  offered  to 
prove  other  threats,  which  had  not  been  communicated ;  and  this  court 
held  that  the  evidence  should  have  been  admitted,  because  it  tended 
to  confirm  and  strengthen  the  other  evidence  of  threats.  We  are 
not  aware  that  the  soundness  of  this  rule  has  ever  been  called  in 
question,  and  we  adhere  to  it,  not  only  for  the  reason  then  given, 
but  for  the  additional  reason  that  it  tends  to  show  the  persistent  dis- 
position of  the  deceased,  and  to  aid  the  jury  in  forming  a  more  cor- 
rect estimate  of  his  character,  and  of  the  danger  that  might  have 
been  apprehended  at  his  hands. 

The  same  witness  who  testified  to  the  threats  which  were  ex- 
cluded, also  testified  that  the  appellant,  when  placed  in  jail  on  the 
charge  of  murder,  had  bruises  on  his  head  and  arms ;  but  this  evi- 
dence was  also  excluded.  When  taken  in  connection  with  the  evi- 
dence of  Mrs.  Kramer,  the  testimony  as  to  bruises  on  the  person  of 
the  appellant  was  not  only  competent,  but  important,  and  should 
have  been  allowed  to  remain  before  the  jury.  » 

It  appears  that  in  January  before  he  was  killed,  Auguste  had 
been  arrested  on  a  warrant  sued  out  by  Henry,  and  placed  under 
bond  to  keep  the  peace  and  be  of  good  behavior  towards  Henr)^ 
and  his  wife ;  and  the  record  of  that  proceeding  was  tendered  in  evi- 
dence, but  was  not  allowed  to  go  before  the  jury.  The  record  should 
have  been  admitted,  both  because  it  tended  to  show  a  disposition  on 
the  part  of  the  prisoner  to  resort  to  the  law  rather  than  to  violence, 
and  because  it  served  to  illustrate  the  character  of  the  deceased. 

Whether  the  recital  in  the  judgment  in  that  case  that  the  deceased 
had  threatened  to  do  violence  to  the  prisoner,  is  competent  evidence 
that  such  threats  had  actually  been  made,  is  not  so  clear;  and  if 
there  was  no  other  evidence  of  threats,  we  should  hesitate  to  admit 
that  part  of  the  record,  but  under  the  circumstances  of  this  case, 
we  think  the  whole  should  have  gone  to  the  jury  to  have  such  weight 
as  they  thought  it  entitled  to. 


Henry  Kramer  v.  Commonwealth.  431 

The  instructions  asked  for  by  the  appellant  were  properly  re- 
fused, but  the  court  did  not  correctly  define  the  law  of  self-defense. 
The  instruction  on  that  subject  is  objectionable  in  two  respects.  The 
jury  were  told  that  self-defense  is  the  right  one  has,  when  without 
fault  himself,  he  is  attacked  by  another,  under  such  circumstances 
as  to  furnish  reasonable  grounds  for  apprehending  a  design  to 
take  his  life,  or  do  him  some  great  bodily  harm. 

It  is  not  every  fault  that  will  deprive  a  person  of  the  right  of 
self-defense.  Insulting  or  provc4cing  language  or  gestures  may  be 
faults,  but  clearly  do  not  deprive  the  person  using  the  language  of 
making  the  gestures  of  his  right  to  defend  himself  against  danger 
to  his  life  or  limb.  Nor  will  an  assault,  or  even  a  battery,  always 
have  this  effect.  If  A  assaults  B,  and  then  withdraws  in  good  faith 
from  the  encounter,  all  danger  of  a  renewal  of  the  assault  being  en- 
tirely passed,  and  B  then  attacks  A,  the  latter  may  lawfully  defend 
himself,  notwithstanding  his  antecedent  fault  in  making  the  first 
assault. 

The  use  of  the  words  "when  he  is  attacked,"  in  the  instruction, 
was  calculated  to  mislead  the  jury.  The  right  to  strike  in  the  de- 
fense of  one's  life  does  not  necessarily  depend  upon  his  having 
been  first  actually  attacked.  To  be  attacked  is  to  be  set  upon  with 
hostility  and  violence,  to  be  assaulted  or  assailed ;  and  the  language 
used  in  the  instruction  may  have  been  understood  by  the  jury  to 
mean,  as  it  literally  imports,  that  the  right  of  self-defense  depends 
upon  the  actual  doing  of  some  act  of  violence  to  the  person  of  the 
prisoner;  certainly  it  could  not  have  been  understood  to  mean  less 
than  that  no  such  right  could  exist  until  the  prisoner  was  assaulted. 
We  are  not  prepared  to  approve  a  definition  so  restricted.  There 
may  be  such  apparent  danger  of  immediate  death  or  serious  bodily 
injury  as  will  warrant  one  in  striking  or  shooting  in  self-defense, 
when  there  has  been  no  actual  attack. 

The  true  rule  is  that  when  one  believes,  and  has  reasonable  ground 
to  believe  that  he  is  in  danger  of  immediately  losing  his  life,  or  of 
sustaining  great  bodily  injury  at  the  hands  of  another,  he  has  a  right 
to  do  whatever  is  apparently  necessary  for  his  own  security;  he 
must  act  rationally,  in  view  of  all  the  facts  and  circumstances  sur- 
rounding him,  but  if  these  are  such  that  there  is  no  other  apparent 
and  safe  means  of  escaping  the  impending  danger,  he  may  slay  his 
adversary,  and  will  be  excusable. 

The  ninth  instruction  asked  for  by  the  appellant  assumes,  as  true 
facts,  that  which  the  jury  should  have  been  permitted  to  decide. 


43^  Kentucky  Opinions. 

After  evidence  had  been  offered  tending  to  prove  these  facts,  the 
appellant  proved  that  Auguste,  in  January  before  the  homicide  was 
committed,  had  threatened  to  kill  him,  but  that  the  threat  not  ap- 
pearing to  have  been  communicated  to  him,  the  evidence  that  it 
had  been  made  was  excluded,  and  an  exception  having  been  taken, 
that  action  of  the  court  is  now  called  in  question. 

In  Cornelius  v.  Commonwealth,  15  B.  Mon.  539,  the  prisoner 
proved  that  the  deceased  had  made  threats  against  him,  and  had 
tried  to  hire  persons  to  kill  him,  and  that  these  facts  had  been  ccwn- 
municated  to  him  before  the  killing  occurred.  He  then  offered  to 
prove  other  threats,  which  had  not  been  communicated ;  and  this  court 
held  that  the  evidence  should  have  been  admitted,  because  it  tended 
to  confirm  and  strengthen  the  other  evidence  of  threats.  We  are 
not  aware  that  the  soundness  of  this  rule  has  ever  been  called  in 
question,  and  we  adhere  to  it,  not  only  for  the  reason  then  given, 
but  for  the  additional  reason  that  it  tends  to  show  the  persistent  dis- 
position of  the  deceased,  and  to  aid  the  jury  in  forming  a  more  cor- 
rect estimate  of  his  character,  and  of  the  danger  that  might  have 
been  apprehended  at  his  hands. 

The  same  witness  who  testified  to  the  threats  which  were  ex- 
cluded, also  testified  that  the  appellant,  when  placed  in  jail  on  the 
charge  of  murder,  had  bruises  on  his  head  and  arms ;  but  this  evi- 
dence was  also  excluded.  When  taken  in  connection  with  the  evi- 
dence of  Mrs.  Kramer,  the  testimony  as  to  bruises  on  the  person  of 
the  appellant  was  not  only  competent,  but  important,  and  should 
have  been  allowed  to  remain  before  the  jury.  » 

It  appears  that  in  January  before  he  was  killad,  Auguste  had 
been  arrested  on  a  warrant  sued  out  by  Henry,  and  placed  under 
bond  to  keep  the  peace  and  be  of  good  behavior  towards  Henr}^ 
and  his  wife ;  and  the  record  of  that  proceeding  was  tendered  in  evi- 
dence, but  was  not  allowed  to  go  before  the  jury.  The  record  should 
have  been  admitted,  both  because  it  tended  to  show  a  disposition  on 
the  part  of  the  prisoner  to  resort  to  the  law  rather  than  to  violence, 
and  because  it  served  to  illustrate  the  character  of  the  deceased. 

Whether  the  recital  in  the  judgment  in  that  case  that  the  deceased 
had  threatened  to  do  violence  to  the  prisoner,  is  competent  evidence 
that  such  threats  had  actually  been  made,  is  not  so  clear;  and  if 
there  was  no  other  evidence  of  threats,  we  should  hesitate  to  admit 
that  part  of  the  record,  but  under  the  circumstances  of  this  case, 
we  think  the  whole  should  have  gone  to  the  jury  to  have  such  weight 
as  they  thought  it  entitled  to. 


Henry  Kramer  v.  Commonwealth.  431 

The  instructions  asked  for  by  the  appellant  were  properly  re- 
fused, but  the  court  did  not  correctly  define  the  law  of  self-defense. 
The  instruction  on  that  subject  is  objectionable  in  two  respects.  The 
jury  were  told  that  self-defense  is  the  right  one  has,  when  without 
fault  himself,  he  is  attacked  by  another,  under  such  circumstances 
as  to  furnish  reasonable  grounds  for  apprehending  a  design  to 
take  his  life,  or  do  him  some  great  bodily  harm. 

It  is  not  every  fault  that  will  deprive  a  person  of  the  right  of 
self-defense.  Insulting  or  provoking  language  or  gestures  may  be 
faults,  but  clearly  do  not  deprive  the  person  using  the  language  of 
making  the  gestures  of  his  right  to  defend  himself  against  danger 
to  his  life  or  limb.  Nor  will  an  assault,  or  even  a  battery,  always 
have  this  eflFect.  If  A  assaults  B,  and  then  withdraws  in  good  faith 
from  the  encounter,  all  danger  of  a  renewal  of  the  assault  being  en- 
tirely passed,  and  B  then  attacks  A,  the  latter  may  lawfully  defend 
himself,  notwithstanding  his  antecedent  fault  in  making  the  first 
assault. 

The  use  of  the  words  "when  he  is  attacked,"  in  the  instruction, 
was  calculated  to  mislead  the  jury.  The  right  to  strike  in  the  de- 
fense of  one's  life  does  not  necessarily  depend  upon  his  having 
been  first  actually  attacked.  To  be  attacked  is  to  be  set  upon  with 
hostility  and  violence,  to  be  assaulted  or  assailed ;  and  the  language 
used  in  the  instruction  may  have  been  understood  by  the  jury  to 
mean,  as  it  literally  imports,  that  the  right  of  self-defense  depends 
upon  the  actual  doing  of  some  act  of  violence  to  the  person  of  the 
prisoner;  certainly  it  could  not  have  been  understood  to  mean  less 
than  that  no  such  right  could  exist  until  the  prisoner  was  assaulted. 
We  are  not  prepared  to  approve  a  definition  so  restricted.  There 
may  be  such  apparent  danger  of  immediate  death  or  serious  bodily 
injury  as  will  warrant  one  in  striking  or  shooting  in  self-defense, 
when  there  has  been  no  actual  attack. 

The  true  rule  is  that  when  one  believes,  and  has  reasonable  ground 
to  believe  that  he  is  in  danger  of  immediately  losing  his  Hfe,  or  of 
sustaining  great  bodily  injury  at  the  hands  of  another,  he  has  a  right 
to  do  whatever  is  apparently  necessary  for  his  own  security;  he 
must  act  rationally,  in  view  of  all  the  facts  and  circumstances  sur- 
rounding him,  but  if  these  are  such  that  there  is  no  other  apparent 
and  safe  means  of  escaping  the  impending  danger,  he  may  slay  his 
adversary,  and  will  be  excusable. 

The  ninth  instruction  asked  for  by  the  appellant  assumes,  as  true 
facts,  that  which  the  jury  should  have  been  permitted  to  decide. 


43^  Kentucky  Opinions. 

After  evidence  had  been  offered  tending  to  prove  these  facts,  the 
appellant  proved  that  Auguste,  in  January  before  the  hcHnicide  was 
committed,  had  threatened  to  kill  him,  but  that  the  threat  not  ap- 
pearing to  have  been  communicated  to  him,  the  evidence  that  it 
had  been  made  was  excluded,  and  an  exception  having  been  taken, 
that  action  of  the  court  is  now  called  in  question. 

In  Cornelius  v.  Commonwealth,  15  B.  Mon.  539,  the  prisoner 
proved  that  the  deceased  had  made  threats  against  him,  and  had 
tried  to  hire  persons  to  kill  him,  and  that  these  facts  had  been  com- 
municated to  him  before  the  killing  occurred.  He  then  offered  to 
prove  other  threats,  which  had  not  been  communicated ;  and  this  court 
held  that  the  evidence  should  have  been  admitted,  because  it  tended 
to  confirm  and  strengthen  the  other  evidence  of  threats.  We  are 
not  aware  that  the  soundness  of  this  rule  has  ever  been  called  in 
question,  and  we  adhere  to  it,  not  only  for  the  reason  then  given,, 
but  for  the  additional  reason  that  it  tends  to  show  the  persistent  dis- 
position of  the  deceased,  and  to  aid  the  jury  in  forming  a  more  cor- 
rect estimate  of  his  character,  and  of  the  danger  that  might  have 
been  apprehended  at  his  hands. 

The  same  witness  who  testified  to  the  threats  which  were  ex- 
cluded, also  testified  that  the  appellant,  when  placed  in  jail  on  the 
charge  of  murder,  had  bruises  on  his  head  and  arms ;  but  this  evi- 
dence was  also  excluded.  Wlien  taken  in  connection  with  the  evi- 
dence of  Mrs.  Kramer,  the  testimony  as  to  bruises  on  the  person  of 
the  appellant  was  not  only  competent,  but  important,  and  should 
have  been  allowed  to  remain  before  the  jury.  » 

It  appears  that  in  January  before  he  was  killed,  Auguste  had 
been  arrested  on  a  warrant  sued  out  by  Henry,  and  placed  under 
bond  to  keep  the  peace  and  be  of  good  behavior  towards  Henry 
and  his  wife ;  and  the  record  of  that  proceeding  was  tendered  in  evi- 
dence, but  was  not  allowed  to  go  before  the  jury.  The  record  should 
have  been  admitted,  both  because  it  tended  to  show  a  disposition  on 
the  part  of  the  prisoner  to  resort  to  the  law  rather  than  to  violence, 
and  because  it  served  to  illustrate  the  character  of  the  deceased. 

Whether  the  recital  in  the  judgment  in  that  case  that  the  deceased 
had  threatened  to  do  violence  to  the  prisoner,  is  competent  evidence 
that  such  threats  had  actually  been  made,  is  not  so  clear;  and  if 
there  was  no  other  evidence  of  threats,  we  should  hesitate  to  admit 
that  part  of  the  record,  but  under  the  circumstances  of  this  case, 
we  think  the  whole  should  have  gone  to  the  jury  to  have  such  weight 
as  they  thought  it  entitled  to. 


Henry  Kramer  v,  Commonwe.\lth.  431 

The  instructions  asked  for  by  the  appellant  were  properly  re- 
fused, but  the  court  did  not  correctly  define  the  law  of  self-defense. 
The  instruction  on  that  subject  is  objectionable  in  two  respects.  The 
jury  were  told  that  self-defense  is  the  right  one  has,  when  without 
fault  himself,  he  is  attacked  by  another,  under  such  circumstances 
as  to  furnish  reasonable  grounds  for  apprehending  a  design  to 
take  his  life,  or  do  him  some  gjeat  bodily  harm. 

It  is  not  every  fault  that  will  deprive  a  person  of  the  right  of 
self-defense.  Insulting  or  provoking  language  or  gestures  may  be 
faults,  but  clearly  do  not  deprive  the  person  using  the  language  of 
making  the  gestures  of  his  right  to  defend  himself  against  danger 
to  his  life  or  limb.  Nor  will  an  assault,  or  even  a  battery,  always 
have  this  effect.  If  A  assaults  B,  and  then  withdraws  in  good  faith 
from  the  encounter,  all  danger  of  a  renewal  of  the  assault  being  en- 
tirely passed,  and  B  then  attacks  A,  the  latter  may  lawfully  defend 
himself,  notwithstanding  his  antecedent  fault  in  making  the  first 
assault. 

The  use  of  the  words  "when  he  is  attacked,"  in  the  instruction, 
was  calculated  to  mislead  the  jury.  The  right  to  strike  in  the  de- 
fense of  one's  life  does  not  necessarily  depend  upon  his  having 
been  first  actually  attacked.  To  be  attacked  is  to  be  set  upon  with 
hostility  and  violence,  to  be  assaulted  or  assailed ;  and  the  language 
used  in  the  instruction  may  have  been  understood  by  the  jury  to 
mean,  as  it  literally  imports,  that  the  right  of  self-defense  depends 
upon  the  actual  doing  of  some  act  of  violence  to  the  person  of  the 
prisoner;  certainly  it  could  not  have  been  understood  to  mean  less 
than  that  no  such  right  could  exist  until  the  prisoner  was  assaulted. 
We  are  not  prepared  to  approve  a  definition  so  restricted.  There 
may  be  such  apparent  danger  of  immediate  death  or  serious  bodily 
injury  as  will  warrant  one  in  striking  or  shooting  in  self-defense, 
when  there  has  been  no  actual  attack. 

The  true  rule  is  that  when  one  believes,  and  has  reasonable  ground 
to  believe  that  he  is  in  danger  of  immediately  losing  his  life,  or  of 
sustaining  great  bodily  injury  at  the  hands  of  another,  he  has  a  right 
to  do  whatever  is  apparently  necessary  for  his  own  security;  he 
must  act  rationally,  in  view  of  all  the  facts  and  circumstances  sur- 
rounding him,  but  if  these  are  such  that  there  is  no  other  apparent 
and  safe  means  of  escaping  the  impending  danger,  he  may  slay  his 
adversary,  and  will  be  excusable. 

The  ninth  instruction  asked  for  by  the  appellant  assumes,  as  true 
facts,  that  which  the  jury  should  have  been  permitted  to  decide. 


432  Kentucky  Opinions. 

and  is  also  objectionable  because  it  is  based  upon  a  part  only  of  the 
evidence. 

For  the  errors  indicated  the  judgment  is  reversed,  and  the  cause 
is  remanded  for  further  proceedings. 

W.  A.  Abbott,  for  appellant. 
John  Rodman,  for  appellee. 


H.  J.  Poor  v.  Thomas  Stevenson,  et  al. 

Practice  and  Pleading — ^Bad  Petition  May  Be  Cured  by  Answer— De- 
murrer. 

Where  a  petition  is  defective,  but  is  answered  on  the  merits,  such 
defect  may  in  some  cases  be  cured. 

Demurrer. 

Where  a  defective  petition  Is  made  good  by  an  answer,  and  the  peti- 
tioner demurs  to  the  answer,  it  will  reach  back  to  the  petition. 

APPEAL  FROM  PENDLETON  CIRCUIT   COURT. 

March  13,  1875. 

Opinion  by  Judge  Pryor  : 

We  do  not  understand  the  position  assumed  by  counsel  to  be  a 
correct  rule  of  pleading,  but,  on  the  contrary,  directly  in  conflict 
with  the  practice,  as  well  as  all  the  rules  of  pleading.  Where  a 
cause  of  action  is  defectively  stated,  as  in  the  failure  to  allege  that 
a  party  of  unsound  mind  was  in  that  condition  on  the  day  the  writing 
sought  to  be  cancelled  was  executed,  and  the  defendant  by  answer 
denies  that  he  was  of  unsound  mind  on  the  day  and  at  the  time  he 
signed  the  writing,  this  last  pleading  has  made  an  issue  for  the 
plaintiff  that  he  himself  should  have  made,  and  cures  the  defect. 
The  pleader,  when  his  petition  is  defective,  should  never  demur  to 
the  answer  for  the  reason  that  the  demurrer  goes  back  to  the  peti- 
tion unless  the  answer  has  made  the  petition  good. 

In  this  case,  if  the  answer  had  been  defective,  the  plaintiff  should 
have  demurred  because,  although  the  answer  is  bad,  the  petition  is 
cured  by  it.  Where  the  petition  is  bad,  and  the  defense  is  desirous 
to  experiment  with  the  case  in  order  to  see  what  the  court  or  judge 
will  do  with  his  client,  it  is  best  not  to  demur,  but  to  traverse  the 
petition  with  an  answer  that  is  no  better  than  the  petition ;  and  if 
the  case  is  lost  a  motion  to  arrest  the  judgment  must  prevail.   It  is 


L.  O.  Schmidt  &  Co.  v.  Thomas  P.  Larder,  et  al.        433 

true,  the  good  pleader  dislikes  to  file  a  bad  plea,  but  if  he  prefers 
pleading  over,  the  result  is  that  the  petition  is  made  good.  If  the 
petition  is  defective  the  defendant  must  stand  by  his  demurrer  to 
avail  himself  of  the  defect  in  the  declaration,  or  file  a  plea  that  is 
no  better  than  the  declaration,  or  be  careful  not  to  aid  the  original 
pleading.  If  he  cures  the  defect  by  pleading  over,  his  demurrer 
amounts  to  nothing.  It  is  true  there  are  some  petitions  in  which 
matters  of  substance  are  failed  to  be  alleged  that  cannot  be  cured 
by  plea  or  answer ;  but  such  is  not  the  case  in  the  pleading  before 
us.  The  demnurrer  was  before  us  when  the  case  was  considered. 
The  petition  is  overruled. 

A.  R.  Clark,  for  appellant, 
C.  H,  Lee,  for  appellees. 


L.  O.  Schmidt  &  Co.  v.  Thomas  P.  Larder,  et  al. 

Mortgage  of  Personalty  in  the  Possession  of  a  Bailee — Delivery  of  Pos- 
session. 

A  sale  of  personal  property  left  in  the  possession  of  the  seller  or 
his  bailee  after  sale,  is  fraudulent  as  to  creditors;  but  where  the  bailee, 
at  the  instance  of  the  seller,  delivers  the  property  to  the  purchaser, 
or  agrees  to  hold  the  same  for  the  vendee,  it  is  an  actual  delivery  and 
is  not  a  sale  fraudulent  as  against  creditors. 

APPEAL  PROM  MADISON  CIRCUIT  COURT. 

March  13,  1875. 

Opinion  by  Judge  Pryor  : 

The  whiskey  in  controversy  was  in  the  actual  possession  of  the 
bailee  of  Larder  when  the  mortgage  to  the  appellee  was  executed. 
It  might  be  regarded  that  such  a  possession  was  not  decisive  as 
to  creditors,  and  the  case  not  within  the  doctrine  of  constructive 
fraud,  the  possession  being  with  the  bailee  and  not  with  the  actual 
owner.  It  is  not  necessary  to  determine  this  question.  The  bailee 
of  Larder  had  the  actual  possession.  He  was  holding  the  whiskey 
for  Larder ;  and  on  the  day  the  mortgage  was  executed,  the  evidence 
shows  that  the  actual  possession  was  delivered  to  the  appellee.  The 
whiskey  was  in  the  cellar  of  McKee,  the  bailee.  Larder,  the  ap- 
pellee, and  others  were  in  the  cellar  examining  the  whiskey  or  to 
see  that  it  was  there,  when  the  bailee,  by  the  consent  of  Larder, 
and  at  the  instance  of  the  appellee,  agreed  to  take  charge  of  the 

28 


434  Kentucky  Opinions. 

whiskey  and  hold  it  for  the  latter.  McKee  then  became  the  bailee 
of  the  appellee,  and  his  possession,  that  was  actual,  was  the  pos- 
session of  the  appellee. 

If  the  whiskey  had  been  on  the  premises  of  Larder  and  in  his 
possession,  a  mere  declaration  by  the  parties  that  the  whiskey  was 
appellees*  and  in  his  possession  would  not  suffice.  In  such  a  case 
there  must  be  an  actual  delivery,  a  taking  away,  for  if  left  in  the 
actual  possession  of  the  vendor  after  sale,  it  is  fraudulent  as  to 
creditors.  If,  however,  the  whiskey  or  property  is  in  the  actual 
possession  of  a  third  party  as  bailee,  and  a  sale  is  made,  the  bailee 
agreeing  to  hold  for  the  vendee,  it  is  an  actual  delivery  and  change 
of  possession.  The  vendee  may  not  desire  to  remove  it.  The  prop- 
erty passes  to  him  by  the  purchase,  and  the  actual  possession  is 
not  in  the  owner  but  in  a  third  party.  It  cannot,  then,  be  said  that 
the  possession  is  in  the  vendor.    Judgment  affirmed. 

J,  W,  Caperton,  for  appellant. 
W.  B.  Smith,  for  appellees. 


Betsey  Caldwell,  et  al.,  v.  Marsh  Caldwell,  et  al. 

Suit  to  Set  Aside  Conveyances  of  Real  Estate — Joint  Suit— -Waiver. 

Where  two  conveyances  are  made  at  different  times  to  different  per- 
sons for  separate  tracts  of  ground,  there  should  be  separate  suits  to 
set  them  aside;  but  since  the  statute,  Civ.  Code,  i  114,  provides  that 
unless  objection  is  made  in  the  court,  the  error  in  improperly  joining 
two  actions  in  one  is,  waived,  no  objection  having  been  made  in  the 
court  below  none  can  be  made  in  the  court  of  appeals. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

March  13,  1875. 

Opinion  by  Judge  Peters: 

This  suit  in  equity  was  brought  by  appellees,  the  widow  and  the 
only  child  and  heir  of  William  Caldwell,  deceased,  against  appellants 
and  Robert  Caldwell,  to  set  aside  two  deeds  made  by  said  decedent  a 
short  time  before  his  death,  the  one  to  appellants,  who  were  his 
mother  and  sister,  and  the  other  to  Robert  Caldwell,  who  was  his 
brother,  for  real  estate  situate  in  the  city  of  Lexington,  on  the  ground 
of  the  want  of  sufficient  mental  capacity,  at  the  time,  on  the  part  of 
decedent  to  make  said  deed ;  that  said  deeds  were  executed  without 


Betsey  Caldwell,  et  al.,  v.  Marsh  Caldwell,  et  al.     435 

any  consideration,  and  that  they  were  procured  to  be  made  by  the 
fraud  and  undue  influence  of  th«  grantees  in  said  deeds. 

The  court  below  sustained  the  deed  to  Robert  Caldwell,  and  set 
aside  the  deed  to  appellants,  the  mother  and  sister  of  decedent,  and 
they  prosecute  this  appeal  from  that  part  of  the  judgment.  Appellants 
insist  that,  as  the  deeds  convey  two  distinct  parcels  or  lots  of  ground 
to  different  parties,  a  joint  suit  could  not  be  maintained,  and  the 
petition  should  have  been  dismissed  because  there  was  a  misjoinder 
of  the  causes  of  action.  That  may  be  true;  but  Sec.  113,  Civil  Code, 
provides  where  that  objection  exists,  the  court  may  at  any  time  be- 
fore defense  made  on  motion  of  defendants,  strike  out  any  cause  or 
causes  of  action  improperly  joined;  and  Sec.  114,  Ih,,  provides  that 
unless  the  objection  is  made  as  provided  in  Sec.  113,  the  error  shall 
be  deemed  as  waived. 

The  objection  was  not  made  in  the  court  below,  and  the  question 
cannot  be  raised  in  this  court.  The  consideration  for  the  conveyance 
from  William  to  Betsey  and 'Mary  Caldwell  recited  in  the  deed,  is 
that  they  furnished  nearly  or  quite  all  the  money  with  which  to  pur- 
chase the  house  and  lot  owned  by  him,  etc.,  except  that  furnished  by 
his  brother,  Robert  Caldwell.  The  conveyances  for  the  property,  there 
being  two,  are  dated  March  7,  1862,  and  July  23,  1864,  respectively ; 
and  it  is  shown  by  the  evidence  that  to  within  two  years  before  the 
death  of  Mrs.  Caldwell,  he  was  an  industrious  man  of  good  habits 
and  a  good  bricklayer,  receiving  high  prices  for  his  labor.  Some  of 
the  witnesses  speak  of  his  having  received  as  much  as  $5  or  more  per 
diem  for  work.  He  might  very  soon  have  paid  for  the  property  by 
his  labor  at  the  prices  he  was  in  the  habit  of  receiving  for  it.  When 
he  made  the  purchases,  the  evidence  does  not  show  where  appellants 
lived,  or  in  what  they  were  engaged. 

Mr.  Messick  proves  that  he  knew  Betsey  in  1836,  and  when  he 
first  knew  her,  he  supposed  she  was  worth  some  $500  or  $600 ;  about 
1839  he  says  she  loaned  him  $150;  that  he  was  a  grocer;  she  traded 
with  him  and  paid  him  promptly;  he  does  not  know  when  she  re- 
moved to  Lexington,  when  he  first  knew  her  she  lived  in  the  country, 
on  a  rented  place ;  he  did  not  know  she  was  living  in  Lexington  until 
four  or  five  years  before  he  testified,  and  he  knew  nothing  of  her 
owning  any  property  since  she  removed  to  Lexington. 

James  Sellers  proves  he  formed  the  acquaintance  of  appellants 
about  the  close  of  the  war;  that  they  then  lived  in  the  property  in 
controversy,  and  he  rented  and  lived  in  a  part  of  the  house  three 
or  four  months ;  that  the  old  woman  rented  out  a  part  of  the  house, 


436  Kentucky  Opinions. 

and  in  that  way  got  some  support ;  he  had  known  William  Caldwell 
to  give  her  money  for  marketing,  and  William  bought  Mary  two 
dresses  while  he  was  there ;  he  never  knew  either  of  them  to  work 
for  wages,  and  he  knew  no  source  from  which  they  derived  an  income 
except  by  the  rent  of  the  house. 

Robert  Caldwell's  deposition  was  taken ;  he  proves  receipts  were 
given  by  Scott  for  payments  made  on  the  property,  and  were  all  to 
William  Caldwell  except  one  for  $240,  which  was  to  himself;  that 
the  receipts  were  all  in  the  possession  of  Betsey  Caldwell  when  this 
suit  was  commenced,  except  the  one  for  $240.  He  fails  to  prove, 
and  is  not  examined  to  the  point,  that  his  mother  or  sister  had  any 
money  with  which  to  pay  any  part  of  the  purchase  money,  or  labored 
to  earn  money. 

Sykes  proves  that  William  Caldwell  borrowed  of  him  $300  to 
make  a  payment  (perhaps  the  first)  to  Scott  for  the  property,  and 
he  paid  him  the  borrowed  money  with  the  interest.  And  Robinson, 
who  is  a  subscribing  witness  to  the  deed  to  Robert  Caldwell,  proves 
he  was  present  in  the  early  part  of  the  day  when  that  deed  was  made, 
and  heard  Robert  and  William  talking  about  the  amount  each  had 
paid  for  the  property,  Robert  contending  that  he  had  paid  more  than 
William,  and  the  later  denying  it  and  insisting  he  had  paid  most ;  and 
it  was  finally  agreed  that  Robert  should  pay  the  balance  owing  to 
Scott  for  the  property.  That  argument  having  been  made,  the  deed 
was  executed  to  Robert.  That  took  place  in  the  house  where  appel- 
lants were,  and  it  is  not  shown  that  either  of  them  there  claimed  that 
they  had  paid  any  part  of  the  purchase  money. 

In  addition  to  all  this  proof  of  payments  by  William  Caldwell  at 
the  time  the  deed  was  made  to  his  mother  and  sister,  he  was  with 
them  and  away  from  his  wife.  He  was  greatly  enfeebled  by  disease 
in  body  and  mind,  and  died  within  a  very  few  days  after  he  signed 
the  deed ;  he  was  dependent  on  them  for  such  nursing  as  he  had,  and 
was  in  a  condition  to  be  easily  influenced  and  impelled  to  submit  to 
the  wishes  and  commands  of  his  mother,  and  Mr.  Gibbons's  deposi- 
tion strongly  fortifies  this  conclusion.  After  stating  that  William 
Caldwell  was  in  a  very  feeble  and  emaciated  condition,  he  says  soon 
after  he  went  to  the  house  the  first  time,  his  mother  spoke  up  while 
he  was  talking  to  him,  and  said  how  she  was  going  to  have  the  deed 
made,  but  he  silenced  her,  and  told  her  that  only  he  and  her  son 
must  talk.  He  wrote  both  deeds ;  the  one  to  Robert  he  wrote  in  the 
morning,  and  promised  to  return  and  write  the  other  in  the  evening, 
and  he  was  so  low  he  was  afraid  he  would  die  before  he  could  return 


Louisville  Soap  Mfg.  Co.  %k  William  A.  Richardson.      437 

in  the  evening.  A  deed  made  under  such  circumstances  would  be 
scrutinized,  and  must  be  regarded  with  the  gravest  caution.  But 
when  the  consideration  is  expressed  to  be  for  having  advanced  all 
or  nearly  all  of  the  purchase  money  to  the  vendor,  and  upon  investi- 
gation it  turns  out  that  the  grantees  paid  no  part  of  the  purchase 
money,  and  had  none  to  advance,  the  deed  under  such  circumstances 
cannot  be  sustained. 

From  all  the  evidence  in  the  case  we  must  conclude  that  William 
Caldwell  paid  the  residue  of  the  purchase  price  for  the  property  not 
paid  by  Robert,  and  that  the  conveyance  to  appellants  was  without 
consideration.    Wherefore  the  judgment  is  affirmed. 

Smith  &  Shelby,  Z.  Gibbons,  for  appellants, 
Huston  &  Mulligan,  for  appellees. 


Louisville  Soap  Manufacturing  Co.  zk  William  A.  Richardson. 

Landlord  and  Tenant — Repairs. 

The  landlord  cannot  be  required  to  make  repairs  unless  he  has  ex- 
pressly agreed  to  do  so. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

March  14,  1875. 

Opinion  by  Judge  Pryor: 

Unless  the  landlord  binds  himself  by  an  express  agreement  to  that 
effect,  the  tenant,  whether  for  life,  for  years,  or  at  will,  cannot  compel 
him  to  repair.  '*The  tenant  takes  the  premises  for  better  or  for 
worse,  and  cannot  involve  the  landlord  in  expense  for  repairs  without 
his  consent."    Taylor's  Landlord  and  Tenant  229. 

"A  lessor,  as  such,  in  the  absence  of  some  covenant  or  agreement 
to  that  effect,  is  not  bound  to  make  repairs  on  the  premises,  nor  to 
compensate  the  lessee  for  repairs  made  by  him."  i  Waterman  on 
Real  Property  325. 

A  tenant  is  bound  for  stipulated  rents,  though  the  premises  should 
be  destroyed  by  inevitable  casualty.    Ridding  v.  Hall,  et  al,,  i  Bibb 

536. 

The  landlord  is  not  bound  to  repair  in  any  case  except  by  force 
of  an  express  agreement.    3  Duer.  464. 


438  Kentucky  Opinions. 

There  is  no  covenant  in  this  case  on  the  part  of  the  appellee  to 
repair.  The  demurrer  was  properly  sustained,  as  the  answer  pre- 
sented no  defense.    Judgment  affirmed. 

Young  &  Boyle,  for  appellant, 
A,  Bamett,  for  appellee. 


J.  LlEBER,  ET  AL.,  V.  S.  D.  WiLSON,  ET  AL. 

Mortgage  to  Defraud  Creditors— Burden. 

Wlien  a  mortgage  is  attacked  upon  the  ground  of  fraud  by  a  cred- 
itor, the  burden  is  on  the  parties  to  such  mortgage  to  show  what  the 
consideration  was. 

APPEAL  FROM  McLEAN  CIRCUIT  COURT. 

March  16,  1875. 

Opinion  by  Judge  Pryor: 

There  can  be  no  question  as  to  the  right  of  Wilscm  to  mortgage 
his  crop  of  corn  and  tobacco  to  his  brother-in-law,  J.  H.  Linvin,  if 
made  for  the  purpose  of  securing  a  valid  subsisting  debt. 

The  appellant  was  a  stranger  to  the  instrument,  and  in  no  man- 
ner connected  with  the  transaction.  When  attacked  upon  the  ground 
of  fraud,  the  burden  was  on  the  parties  to  the  mortgage  to  show 
what  the  consideration  was.  It  was  within  their  power,  if  a  bona  fide 
transaction,  to  remove  all  suspicion  that  might  be  entertained  in  re- 
gard to  the  purposes  for  which  it  was  executed.  This  they  have 
wholly  failed  to  do.  J.  H.  Linvin,  the  mortgagee,  says  that  he  and 
Wilson  had  a  settlement  on  the  street  the  day  the  note  was  executed. 
He  does  not  recollect  how  this  debt  was  created,  except  that  Wilson 
had  been  getting  in  his  debt  for  some  time;  he  fails  to  remember 
the  amount  of  his  account  on  Wilson,  and  gives  no  intelligent  or 
satisfactory  account  of  the  manner  in  which  the  eight  hundred  dol- 
lar debt  originated. 

The  statements  made  by  the  father,  son  and  son-in-law,  when  care- 
fully examined  and  considered,  show  no  consideration  for  the  execu- 
tion of  the  mortgage ;  but  on  the  contrary,  they  produce  a  convic- 
tion that  the  real  object  for  its  execution  was  to  enable  Wilson  to 
avoid  the  payment  of  his  just  debts.  The  father  says  that  the  con- 
sideration was  money  loaned,  one  mule,  com  and  bacon.  Whether 
he  refers  to  the  eight  hundred  dollar  mortgage  or  the  three  hun- 
dred, does  not  appear,  and  whether  to  either  or  to  both,  the  court  is 


Huston  &  Mulligan  v,  John  R.  Blackwell.  439 

still  left  in  ignorance  as  to  the  amount  of  money  loaned  or  the  quan- 
tity of  com  and  bacon  furnished ;  and  besides,  the  party  making  the 
loan  ought  himself  to  be  able  to  give  some  definite  statement  in 
regard  to  it. 

As  an  evidence  of  the  manner  in  which  these  important  transac- 
tions are  lost  sight  of  by  these  parties,  the  father  says  that  the  mort- 
gage to  him  by  the  son-in-law  for  one  thousand  dollars  was  satis- 
fied by  the  execution  of  a  joint  note  of  the  son-in-law  and  wife,  his 
daughter,  whilst  the  latter  says  that  he  satisfied  it  by  paying  the 
money.  There  is  nothing  in  the  record  showing  that  their  business 
was  so  extensive  as  to  induce  the  belief  that  these  transactions  might 
have  been  forgotten;  but  the  facts  clearly  indicate  that  men  of  or- 
dinary business  habits,  and  with  limited  means,  would  be  able  to 
give  a  plain  and  clear  statement  of  such  important  business  affairs. 
The  execution  of  the  various  mortgages,  and  the  relation  of  these 
parties/  connected  with  the  unsatisfactory  statement  as  to  the  con- 
sideration, leave  but  little  doubt  as  to  the  purpose  in  view  by  the 
execution  of  the  mortgage  in  controversy. 

The  judgment  is  reversed,  and  the  cause  remanded  with  directions 
to  sustain  the  attachment  and  disregard  the  mortgage,  so  far  as  it 
affects  the  claim  of  appellants,  and  for  further  proceedings  consistent 
with  this  opinion. 

/.  C.  Jonson,  for  appellants, 
George  A.  Prentice,  for  appellees. 


Huston  &  Mulligan  v.  John  R.  Blackwell. 

Attorney's  Fees— Value  of  Legal  Services. 

In  determining  the  value  of  legal  services  rendered  by  an  attorney, 
the  magnitude  of  the  case  and  the  importance  of  the  questions  in- 
volved, as  well  as  the  ability  and  skill  of  counsel  in  conducting  it, 
and  the  benefits  the  client  has  derived  by  reason  of  the  employment, 
must  all  enter  into  the  estimate  of  the  value  of  such  services. 

APPEAL  FROM  MADISON  CIRCUIT  COURT. 

March  16,  1875. 

Opinion  by  Judge  Pryor  : 

The  preponderance  of  testimony  is  not  only  with  the  appellants 
as  to  the  amount  and  value  of  the  services  rendered  by  them,  but  the 
verdict  of  the  jury  is  against  all  the  evidence  in  the  case.  The  low- 


440  Kentucky  Opinions. 

est  estimate  placed  on  the  value  of  the  services  rendered  is  by  a 
witness  for  the  appellee.  This  witness  fixes  the  value  at  $500,  yet  the 
jury  rendered  a  verdict  for  only  three  hundred  dollars.  The  principal 
object  of  the  litigation  was  to  rescind  a  contract  for  the  sale  of  real 
estate  of  the  value  of  near  twenty  thousand  dollars,  upon  which 
seven  thousand  dollars  had  been  paid. 

Huston,  one  of  the  firm  of  Huston  &  Mulligan,  residing  in  the 
city  of  Lexington,  was  employed  to  aid  resident  counsel  in  the  prose- 
cution of  the  case.  His  long  experience  in  the  practice  of  his  pro- 
fession, as  well  as  his  acknowledged  ability  as  a  lawyer,  was  the  in- 
ducement for  employing  him  on  a  case  of  vital  importance  to  the  ap- 
pellee. The  services  were  rendered  by  him  in  conjunction  with  asso- 
ciate counsel  not  only  in  the  court  below,  but  in  this  court,  resulting 
in  the  successful  prosecution  of  the  action  by  the  appellee  in  both 
courts.  The  witnesses  in  the  case  were  all  lawyers  in  full  practice, 
and  many,  of  them  conversant  with  the  history  of  the  litigation  in 
which  the  services  were  rendered.  Their  testimony,  standing  uncon- 
tradicted, was  all  the  light  the  jury  had  in  leading  them  to  a  conclu- 
sion as  to  the  value  of  the  services  rendered.  The  mere  physical  or 
mechanical  labor  performed  by  counsel,  the  value  of  which  the  jury 
might  of  their  own  knowledge  determine,  is  entitled  to  but  little 
consideration  in  ascertaining  the  value  of  the  services  in  a  case  like 
this.  The  magnitude  of  the  case  and  the  importance  of  the  ques- 
tions involved,  as  well  as  the  abilitv  and  skill  of  counsel  in  con- 
ducting  it,  and  the  benefits  the  client  has  derived  by  reason  of  the 
employment,  must  all  enter  into  the  estimate  to  be  made  of  the  value 
of  the  services  performed. 

The  judgment  of  the  court  below  is  reversed,  and  cause  remanded 
with  directions  to  award  a  new  trial,  and  for  further  proceedings 
consistent  with  the  opinion. 

IV,  B.  Simth  &  Huston  &  Mulligan,  for  appellants. 
Chenault  &  Bennett^  for  appellee. 


Robert  McAllister,  et  al.,  v.  James  Bryan,  et  al. 

Conveyance  of  Real  Estate — Deed. 

Where  a  deed  to  real  estate  is  duly  delivered  to  the  grantee,  it  car- 
ries title  and  its  destruction  does  not  empower  the  grantor  to  make  a 
second  deed,  for  he  then  has  nothing  to  convey. 


Robert  McAllister,  et  al.,  z/.  James  Bryan,  et  al.       441 

APPEAL  PROM  GREENUP  CIRCUIT  COURT. 

March  17,  1875. 

Opinion  by  Judge  Peters: 

The  evidence  preponderates  very  decidedly  to  the  conclusion 
that  Robert  McAllister  furnished  the  money  with  which  the  land 
claimed  by  Mrs.  McAllister  was  paid  for.  At  the  time  five  hundred 
dollars  of  the  purchase  money  was  paid,  and  which  was  paid  by  him, 
the  land  was  conveyed  to  him  by  Bryan,  the  vendor,  and  the  deed 
acknowledged  by  Bryan  and  wife  before  Corum,  the  clerk  of  the 
county  court  of  Greenup  county,  whose  deposition  is  in  the  record. 
He  not  only  proves  the  acknowledgment  of  the  deed,  but  also 
proves  the  payment  of  $500  of  the  purchase  money  at  the  time 
by  Robert  McAllister.  By  that  conveyance  McAllister  was  invested 
with  the  legal  title.  The  burning  of  that  deed,  and  the  execution 
of  a  second  deed  by  Bryan  to  Mrs  .McAllister  did  not  divest  him, 
and  invest  her  with  the  title.  Bryan,  when  he  attempted  to  make 
the  second  deed,  had  nothing  to  convey,  having  parted  with  his 
title  by  the  former  deed. 

As  to  the  ruling  of  the  court  below  on  the  report  of  Corum,  the 
commissioner  appointed  to  supply  the  part  of  the  record  lost,  or 
destroyed,  it  is  sufficient  to  say  that  exceptions  were  taken  to  the 
report  of  said  commissioner,  which  were  overruled  by  the  court, 
and  there  the  matter  appears  to  have  ended.  No  exception  was 
taken  to  the  judgment  of  the  court  overruling  the  objections  to  the 
commissioner's  report,  and  they  must  be  treated  by  this  court  as 
waived. 

On  the  subject  of  the  cross-appeal  of  Mrs.  Sarah  McAllister,  we 
remark  that  Bryan,  Morton,  Winn  and  Catherine  McAllister  are 
appellees  in  the  appeal  of  Robert  McAllister  and  Malcom  McAllister 
against  them.  It  does  not  appear  from  the  endorsement  of  the 
names  of  the  appellees  on  the  record  that  Sarah  McAllister  is  even 
an  appellee ;  but  if  she  were,  she  could  not  prosecute  a  cross-appeal 
against  other  appellees. 

Wherefore  the  cross-appeal  of  Sarah  McAllister  against  Bryan 
and  others  is  dismissed  and  the  judgment  is  affirmed,  on  the  appeal 
of  R.  McAllister  and  wife  against  Bryan,  Morton,  Winn  and  Cath- 
arine McAllister. 

George  E.  Roe,  A.  Duvall,  for  appellants. 
E.  C.  Phister,  JV.  C,  Ireland,  for  appellees. 


44^  Kentucky  Opinions. 

Wilson  &  Spencer  v.  W.  O.  Hampton,  Assignee. 

Partnership  Assignment — Parties  in  Suit. 

Where  a  partnership  consists  of  three  persons,  two  of  whom  unite 
in  maJdng  an  assignment  of  the  assets  of  the  firm  for  the  benefit  of 
creditors,  an  action  to  collect  debts  due  the  firm  by  the  assignee  and 
remaining  partner  is  properly  brought  and  will  not  be  dismissed  be- 
cause of  misjoinder  of  parties  plaintift. 

APPEAL  FROM  BOYD  CIRCUIT  COURT. 

March  18,  1875. 

Opinion  by  Judge  Cofer: 

No  question  can  properly  arise  in  this  case  as  to  the  effect  of 
the  assignment,  made  by  Wilson  and  Andrews,  of  the  assets  of 
the  firm  of  Wilson,  Andrews  and  Company,  for  the  benefit  of 
the  creditor  of  the  firm.  The  members  of  the  firm,  including  Stock- 
well,  ^o  did  not  unite  in  the  assignment,  having  joined  with  the 
assignee  in  suing  for  the  debt,  claimed  against  the  firm  of  Wilson 
&  Spencer.  It  is  not  material  whether  the  right  of  action  was 
in  the  firm  or  in  the  assignee.  Nor  could  Spencer  make  that  ques- 
tion material  by  alleging  that  Stockwell  had  not  united  in  nor 
assented  to  the  assignment.  If  his  failure  to  unite  in  the  assignment 
or  to  assent  to  it,  rendered  it  ineffectual  to  vest  the  right  to  the 
assets  in  Hampton,  as  assignee,  then  the  right  remained  in  the  firm ; 
and  Hampton  and  the  firm  having  united  in  the  action,  there  can  be 
no  doubt  that  one  or  the  other  was  entitled  to  judgment;  and  no 
matter  which  may  have  the  right,  the  judgment  will  protect  Wilson 
and  Spencer  against  the  assertion  of  the  same  demand  in  another 
action,  in  the  name  of  the  firm  or  of  the  assignee. 

Judgment  affirmed, 

K,  F.  Prichard,  Alf  H,  Gable,  for  appellants. 
IV,  C.  Ireland,  for  appellee. 


WiLUAM  M.  Cooke  &  Wife  v.  Trustees  of  Winchester. 

Taxation  by  Towns— Personal  Property  Where  Taxed 

The  situs  of  notes,  accounts  and  all  species  of  indebtedness  is  the 
home  of  the  creditor,  and  where  such  creditor  resides  within  a  town 
such  property  may  be  taxed  by  the  town. 


Wm.  M.  Cooke  &  Wife  z/.  Trustees  of  Winchester.      443 

APPEAL  FROM  CLARK  CIRCUIT  COURT. 

March  18,  1876. 

Opinion  by  Judge  Lindsay: 

The  9th  section  of  an  act  to  amend  the  several  acts  in  relation  to 
the  town  of  Winchester,  approved  February  16,  1867,  authorized 
and  empowered  **th€  trustees  of  said  town  *  *  *  to  tax  annually, 
all  property  and  choses  in  action  of  the  citizens  of  said  town,  which 
they  were  required  to  give  in  for  state  taxation,  not  exceeding 
twenty-five  cents  on  each  one  hundred  dollars  thereof." 

The  1st  section  of  an  act  to  further  amend  the  several  acts 
in  relation  to  the  town  of  Winchester,  approved  March  18,  1870, 
provides  "That  the  board  of  trustees  of  the  town  of  Winchester 
shall  have  power  and  authority  to  assess  annually,  levy  and  collect 
a  tax  on  all  real  and  personal  estate  within  the  limits  of  the  town, 
not  exceeding  fifty  cents  on  each  one  hundred  dollars  worth  of 
property."  By  the  act  of  1876,  it  is  evident  that  choses  in  action, 
held,  owned  and  possessed  by  citizens  of  the  town,  could  be  taxed 
regardless  of  the  debtor's  place  of  residence.  "It  may  be  fairly 
inferred  that  the  object  of  the  act  of  1870  was  to  increase  the 
revenues  of  the  town,  as  the  maximum  rate  of  taxation  was 
doubled."  Such  being  the  case,  it  is  not  probable  that  the  legislature 
intended  to  defeat,  or  impede  the  accomplishment  of  the  end  it  had 
in  view,  by  diminishing  the  subjects  of  taxation. 

The  power  of  the  trustees  to  tax  personal  property  is  restricted 
to  such  as  is  within  the  limits  of  the  town.  If  choses  in  action, 
held  by  citizens  and  payable  to  them  at  their  place  of  residence,  are 
within  the  town,  then  such  personal  property  falls  within  the  class 
subjected  by  the  act  to  taxation.  The  situs  of  notes  and  accounts, 
and,  in  fact,  of  every  species  of  indebtedness,  and  of  all  kinds  of 
evidences  of  indetedness,  is  the  home  of  the  creditor.  This  is 
the  general  rule,  and  it  must  control  in  this  case,  unless  the  language 
of  the  act  requires  a  different  interpretation. 

Appellants  refer  us  to  the  case  of  Trigg  7'.  Trustees  of  Glasgow, 
2  Bush  594.  In  that  case  the  attempt  was  made  to  tax  choses  in 
action,  money,  and  mercantile  interests  in  Louisville.  Trigg  was 
interested  in  a  mercantile  establishment  in  a  distant  city.  Such 
choses  in  action,  money  and  other  interests  as  belonged  to  and  were 
connected  with  that  establishment,  had  an  actual  location  at  another 
and  different  place  from  the  residence  of  the  creditor,  and  were, 
therefore,  without  the  application  of  the  general  rule  just  stated. 


444  Kentucky  Opinions. 

In  the  case  of  the  City  of  Louisville  v.  Henning  &  Speed,  i  Bush 
382,  the  power  to  tax  was  upon  the  casb  value  of  the  real  and 
personal  estate  and  slaves  within  the  city.  This  language  was  held, 
and  properly  held  to  apply  alone  to  such  personal  estate  as  by  the 
general  laws  of  the  state  was  assessed  for  state  revenue  at  the 
cash  value.  Choses  in  action  and  other  evidences  of  indebtedness 
were  never  so  assessed,  hence  they  were  not  embraced  by  the  legis- 
lative delegation  of  the  taxing  power,  under  which  the  city  of 
Louisville  was  proceeding.  In  this  case  the  grant  of  power  is  to 
tax  all  real  and  personal  estate  within  the  town.  The  choses  in 
action  held  by  appellants  are  personal  property ;  they  are  within  the 
town  of  Winchester,  and  they  therefore  constitute  a  proper  subject 
of  taxation. 

Judgment  a/Krmed, 

J.  Simpson,  for  appellants,     L.  B,  Grigsby,  for  appellees. 


Alexander  Carroll  v.  W.  F.  Collins. 

Purchaser  of  Real  Estate — Knowledge. 

Where  one  about  to  purchase  real  estate  hears  that  his  grantor  has 
already  conveyed  it  to  a  named  person,  makes  no  inquiry  of  such 
person,  but  purchases  upon  the  vendor  declaring  he  has  not  conreyed* 
and  the  public  records  showing  no  conveyanoe,  he  cannot  be  prelected 
for  the  want  of  knowledge  of  the  prior  scde.  He  should  have  made 
inquiry  of  the  person  whom  he  had  heard  had  bought  it. 

APPBAX.  PROM  BELL  CIRCUIT  COURT. 

March  18.  1875. 

Opinion  iiv  Judce  Peters: 

Appellant  admits  in  his  answer  that  a  rumor  had  reached  him  that 
A.  Goodwin  had  sold  the  land  to  appellee,  but  that  Goodwin  told 
him  he  had  not  done  so,  and  tliat  he  had  examined  in  the  clerk's 
office  to  ascertain  whether  a  conveyance  had  been  made  to  appellee, 
and  finding  none,  he  concluded  there  had  been  no  sale,  and  he  there- 
fore purchased. 

He  did  not  rely  on  what  Goodwin  told  him  on  the  subject  of  the 
sale,  as  his  conduct  shows,  and  from  the  action  of  Goodwin  in 
this  record  he  certainly,  if  he  knew  him  as  he  must  have  done, 
could  not  have  confided  in  his  statements.  He  had  heard  enough 
about  the  sale  to  appellee  to  put  him  on  inquiry  in  relation  thereto,. 


John  Stevens  v.  J.  H.  Quisenberry,  et  al.  445 

aiid  he  should,  therefore,  have  g^one  to  appellee,  from  whom  he 
could  have  learned  the  facts.  And  having  failed  to  do  so,  his  pur- 
chase cannot  be  protected  for  the  want  of  knowledge  of  the  prior 
sale,  of  which  he  had  heard,  and  could  have,  by  proper  diligence, 
known  all  about. 

The  deed  to  appellee  recites  a  valuable  consideration,  and  if  appel- 
lee has  not  paid  the  amount,  he  can  be  compelled  to  pay  it. 

Judgment  affirmed. 

Green  Adams,  /.  &  /.  W,  Rodman,  for  appellant. 
Tinsley  &  Dishman,  for  appellee. 


John  Stevens  7*.  J.  H.  Quisenberry,  et  al. 

Bond  to  Replevy  Judgment — Ebcecution — ^Practice. 

Replevla  bonds  executed  by  a  part  only  of  the  defendants  in  an 
execution  will  be  quashed  on  motion  of  the  obligee. 

Practice-^Quashal  of  Bond. 

The  question  of  whether  a  surety  has  been  released  by  the  acts  or 
omissions  of  the  plaintiff  cannot  be  raised  by  an  answer  filed  to  a 
motion  to  quash  a  replevin  bond. 

APPEAL  FROM  CLARK  CIRCUIT  COURT. 

March  18,  1875. 

Opinion  ijy  Judge  Cofer: 

The  appellant,  John  Stevens,  havinp;^  obtained  a  judgment  at 
law  in  the  Clark  circuit  court,  against  J.  H.  Quisenberry  and  his 
surety,  James  Chorn,  Quisenberry  and  his  son,  J.  T.  Quisenberry, 
executed  before  the  clerk  of  the  court  a  bond  replevying  the  judg- 
ment for  three  months.  Before  it  fell  due,  Stevens*  attomev 
notified  the  clerk  that  his  client  would  not  accept  the  bond,  and 
directed  that  no  execution  should  issue  on  it.  At  the  succeeding 
term  of  the  court,  having  given  notice  to  that  effect  to  J.  H.  Quisen- 
berry and  Chorn,  Stevens  moved  the  court  to  quash  the  bond  on 
the  ground  that,  as  Chorn  had  not  signed  it,  he  was  not  bound  to 
accept  it. 

Chorn  appeared  to  the  motion  and  filed  a  lengthy  response,  in 
which  he  set  forth  various  reasons  why  the  bond  should  not  be 
quashed,  the  substance  of  which  was  that  he  was  only  surety  for 


446  Kentucky  Opinions. 

J.  H.  Quisenberry,  and  had  given  notice  to  Stevens  to  sue,  and 
that  Stevens  and  his  attorney  had  been  guilty  of  sudi  laches  in  not 
causing  execution  to  issue  on  the  judgment  before  the  replevying 
bond  was  completed  by  the  signature  of  the  surety  as  released  him 
from  all  further  liability.  The  circuit  court  overruled  the  motion, 
and  Stevens  has  appealed. 

It  has  been  settled  by  repeated  decisions  of  this  court  that  replevin 
bonds,  executed  by  a  part  only  of  the  defendants  in  an  execution, 
may  be  quashed  at  the  instance  of  the  obligee.  Stevens  v,  Wallace, 
5  T.  B.  Mon.  404;  Fulkerson  v.  Caldwell,  i  J.  J.  Marsh.  496; 
Southern  Bank  of  Kentucky  v.  White  &  McMahan,  i  Duvall  290. 
The  court,  therefore,  erred  in  overruling  the  appellant's  motion, 
unless  the  right  to  have  the  bond  quashed  could  be  defeated  by  the 
matters  set  up  in  the  respcmse,  and  relied  upon  to  show  that  Chom 
had  been  released  by  the  acts  or  omissions  of  Stevens  or  his  attorney 
after  the  judgment  was  rendered. 

The  motion  to  quash  the  bond  was  a  summary  proceeding,  in 
which  no  pleading  was  necessary  on  either  side,  the  notice  serving 
alone  to  point  out  the  grounds  relied  upon  by  the  plaintiff.  The 
questions  raised  by  the  response  were  not  germane  to  the  subject  of 
the  motion,  but  were  in  the  nature  of  a  plea  in  avoidance,  and  made 
no  issue  whatever  on  the  ground  of  the  motion  as  stated  in  the 
notice. 

The  appellant  had  a  right  to  have  his  motion  sustained,  and  when 
that  is  done,  Chom  may,  if  an  execution  is  issued  against  him, 
enjoin  it  and  have  the  question  of  his  release  tried  and  decided.  The 
overruling  of  appellant's  motion  leaves  him  in  a  condition  where  he 
cannot  have  his  rights  decided,  except  in  the  informal  and  irregular 
manner  in  which  it  was  done  on  the  trial  of  the  motion.  If  he  had 
taken  out  execution  on  the  bond,  that  would  have  been  an  ac- 
ceptance of  it,  and  Chorn  would  then  have  been  undoubtedly  re- 
leased; if  he  had  allowed  the  bond  to  remain  without  moving  to 
quash  it,  Chorn  could  not  have  been  reached ;  and  he  was,  therefore, 
bound  to  pursue  the  course  he  did,  or  consent  to  the  loss  of  his 
debt,  unless  he  could  coerce  it  out  of  the  obligors  in  the  bond. 

The  response  was  in  the  nature  of  an  application  for  a  perpetual 
injunction  against  all  further  attempts  to  hold  Chorn  liable  on  the 
judgment,  which  could  not,  in  our  opinion,  be  properly  tried  in  the 
summary  manner  in  whidi  motions  of  the  nature  of  that  made  by 
Stevens  are  heard  and  determined. 

We  expressly  reserve  any  expression  of  opinion,  whether,  on  the 


Ben  K.  Sleet,  et  al.,  v,  Louisville,  etc.,  R.  Co.         447 

facts  in  the  record,  Chorn  is  or  is  not  released ;  but  for  the  error  in 
overruling  the  appellant's  motion,  the  judgment  is  reversed  and  the 
cause  is  remanded,  with  directions  to  quash  the  bond. 

/.  Simpson,  for  appellant.    Breckenridge,  for  appellees. 


Ben  K.  Sleet,  et  al.,  v.  Louisville,  Cincinnati  &  Lexing- 
ton R.  Co. 

Judicial  Sales  of  Personalty — Execution  on  Railroad  Company. 

The  sheriff  cannot  levy  upon  and  sell  timbers  delivered  to  a  rail- 
road company  and  placed  upon  its  line  where  the  timber  was  about 
to  be  and  some  of  it  was  being  used  in  repairing  a  bridge  constituting 
a  part  of  its  track. 

Property  of  Railroad  Company. 

The  property  of  a  railroad  company  not  constituting  an  integral 
part  of  its  track  or  rolling  stock  is  subject  to  execution,  but  where 
it  is  a  part  of  the  track  or  rolling  stock  the  creditor  must  resort  to  a 
court  of  equity  for  relief. 

APPEAL  FROM  BOONE  CIRCUIT  COURT. 

March  19,  1875. 

Opinion  by  Judge  Lindsay: 

The  petition  shows  that  the  timbers  levied  (Mi  and  sold  by  the 
sheriff  had  been  delivered  or  placed  immediately  upon  the  line  of 
the  railroad,  and  that  they  were  about  to  be,  and  that  some  of  them 
were,  in  fact,  being  used  in  repairing  a  bridge,  constituting  part  of 
the  track  of  the  road.  Under  such  circumstances,  these  timbers 
will  be  regarded  as  part  of  the  railroad  track.  They  were  not, 
therefore,  subject  to  seizure  and  sale  under  execution. 

A  chancellor  cannot  sell  a  public  improvement  of  the  character 
of  a  turnpike  or  railroad  until  he  has  ascertained  that  the  indebted- 
ness of  the  corporation  owing  it  is  so  gjeat  that  it  cannot  be  dis- 
charged in  a  reasonable  time,  by  the  application  to  that  purpose  of 
its  tolls  or  profits.  Winchester  &  Lexington  Turnpike  Road  Co,  v, 
Vimont,  5  B.  Mon.  i.  The  law  treats  a  railroad  as  an  entirety. 
Public  policy  protects  the  entire  road  from  seizure  and  sale  by  a 
sheriff.  Having  no  power  to  sell  the  entire  road,  of  course  he  cannot 
seize  and  sell  a  fragment  of  it. 

The  property  of  a  railroad  corporation,  not  constituting  an  inte- 


448  Kentucky  Opinions. 

g^al  part  of  its  track  or  of  its  rolling  stock  is  subject  to  execution; 
but  when  that  character  of  property  is  exhausted,  the  creditors 
must  resort  to  a  court  of  equity  for  relief. 

The  demurrer  to  appellee's  petition  was  properly  overruled,  and 
the  injunction  prc^erly  perpetuated. 

Judgment  afHrmed, 

Gleen  &  Carlisle,  for  appellants. 


B.  H.  Bristow  V,  A.  H.  Bowman,  et  al. 
W.  A.  Merriweather,  et  al.,  v.  Same. 

Street  Improvements — ^Assignment  of  Contract — City  Charter. 

A  contract  to  improve  a  street  entered  into  pursuant  to  the  pro- 
visions of  a  city  ordinance  after  advertisement  for  bids,  may  be  as- 
signed by  consent  of  the  city  and  this  does  not  constitute  a  new  con- 
tract 

Apportionment  of  Cost. 

Where  under  a  city  ordinance  and  contract  the  cost  of  a  public  im- 
provemient  is  to  be  assessed  among  adjoining  lot  owners,  an  increased 
price  being  chargeable  against  comer  lots,  and  such  improvement  is 
made  through  unplatted  ground,  no  increased  price  can  be  assessed 
on  the  theory  that  when  platted  some  of  the  lots  will  be  corner  lots. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

February  16,  1875. 

Opinion  by  Judge  Cofer: 

These  appeals,  although  prosecuted  on  separate  records,  involve 
the  same  questions,  and  will  be  disposed  of  in  a  single  opinion. 

In  pursuance  of  an  ordinance  regularly  passed  by  the  general 
council  of  the  city  of  Lx)uisville,  and  approved  by  the  mayor,  for 
the  improvement  of  Eighteenth  street,  in  said  city,  advertisement  was 
made  for  bids  for  doing  the  work,  and  separate  contracts  therefor, 
including  in  each  a  single  square,  were  awarded  to  George  W. 
Hider,  who  entered  into  written  contracts  with  the  city,  stipulating 
that  he  would  perform  the  work  according  to  the  requirements  of 
the  contracts  within  nine  months  from  the  date  of  their  approval 
by  the  general  council,  or  within  such  additional  time  as  might  be 
directed  or  permitted  by  the  council ;  the  city,  however,  reserved  the 
right  to  suspend  the  work  at  any  time. 


B.  H.  Bristow  v.  a.  H.  Bowman,  et  al.  449 

The  contracts  were  approved  by  the  general  council  on  the  17th  of 
October,  1872,  and  without  having  done  any  work  under  either  of 
them  up  to  that  time,  Hider,  on  the  13th  of  March,  1873,  entered 
into  an  agreement  with  the  appellees,  Bowman  &  Co.,  which  is 
endorsed  on  the  back  of  his  contracts  with  the  city,  and  is  in  these 
words: 

''This  endorsement  witnesseth,  that  the  within  contract  is  hereby 
transferred  to  Bowman  and  Kerr,  with  James  Callahan  as  surety, 
and  they,  the  said  Bowman  and  Kerr  and  James  Callahan,  acknowl- 
edge themselves  bound  by  the  same  terms  and  upon  the  same  con- 
ditions in  every  way  as  George  Hider,  the  contractor,  and  J.  C. 
Dennis,  his  surety,  were  bound,  and  they,  Hider  and  Dennis,  re- 
linquish to  Bowman  and  Kerr  all  their  right,  title  and  interest 
herein." 

This  writing  was  signed  by  the  mayor,  surety,  Callahan,  and  by 
Hider,  and  attested  by  the  city  engineer,  and  was  reported  to  and 
approved  by  both  branches  of  the  general  council. 

Bowman  and  Kerr,  under  the  style  of  Bowman  &  Co.,  did  the 
work  specified  in  the  contracts  with  Hider,  and  brought  these  suits 
on  apportionment  warrants  against  the  owners  of  adjacent  property 
for  the  price  of  the  work  done  under  the  contracts,  and  judgments 
having  been  rendered  in  their  favor,  these  appeals  are  prosecuted 
from  those  judgments.  Numerous  grounds  of  defense  were  set 
forth  and  relied  upon  in  the  answers,  only  two  of  which  are  insisted 
on  here. 

I.  The  city  charter  requires  "that  contracts  for  work  and  material 
shall  be  awarded  to  the  lowest  and  best  bidder  for  all  work  done 
by  city  authority";  and  it  is  claimed  that  the  contract  entered  into 
between  Bowman  and  Kerr,  Hider  and  the  city,  was  a  new  contract 
for  work  to  be  done  by  city  authority,  and  not  having  been  let  to 
the  lowest  and  best  bidder  after  advertisement  duly  made,  is  invalid 
in  view  of  this  provision  of  the  charter ;  and  several  authorities  are 
cited  to  sustain  this  position. 

Hider's  contract  was  not  assignable,  and  he  could  not  legally 
transfer  it  to  Bowman  &  Co.,  without  the  assent  of  the  city,  and 
the  only  effect  of  the  action  of  the  mayor  and  council  in  regard 
to  the  matter  was  to  g^ve  the  consent  of  the  city  to  the  assignment. 
It  is  clear  that  none  of  the  parties  intended  that  it  should  have  the 
effect  of  canceling  the  old  and  making  a  new  contract,  and  that  they 
all  understood  it  as  merely  a  transfer  of  Hider's  contract  to  Bowman 
&  Co.;  and  to  decide  that  the  transaction  was  not  what  all  the 

29 


450  Kentucky  Opinions. 

parties  to  it  intended  and  understood  it  to  be,  and  what  the  language 
used  imparts  that  it  was,  would  be  to  decide  that  no  contract  made 
with  one  man  to  improve  a  street  could,  under  any  circumstances, 
be  transferred  to  another.  We  are  unable  to  perceive  any  reason 
founded  in  legal  analogy  or  in  consideration  of  public  policy,  which 
would  pronounce  such  a  transaction  illegal  if  fairly  entered  into. 

The  cases  relied  upon  by  counsel  for  the  appellants  are  unlike 
this.  In  MitcficU  r.  City  of  Milwaukee,  et  aL,  i8  Wis.  99,  the  con- 
tract was  let  to  the  owner  of  the  adjacent  property  at  three  cents 
per  yard,  and  he  having  failed  to  do  the  work  as  required,  it  was 
re-let  without  advertising  or  competition,  to  a  third  person  at  forty- 
two  cents  per  yard,  and  the  court  held  that  a  re-letting,  without 
advertisement,  was  a  violation  of  a  provision  of  the  charter  of 
Milwaukee,  similar  to  that  just  quoted  from  the  charter  of  Louis- 
ville. Here  was  clearly  a  new  contract,  and  it  was,  no  doubt,  cor- 
rectly held  to  be  void.  In  this  case  there  was  no  new  contract,  so  far 
as  the  city  was  concerned ;  the  city  was  bound  from  the  execution  of 
the  contract  with  Hider,  and  yet  remains  bound  by  the  same  con- 
tract. All  the  city  has  done  was  to  consent  to  the  transfer  of  an  exist- 
ing contract  to  another  person.  So  far  as  the  record  shows,  Hider 
was  not  only  bound  to  do  the  work  he  had  contracted  to  do,  but  the 
city  was  bound  to  allow  him  to  do  it,  and  would  have  been  bound  to 
apportion  the  cost  against  the  owners  of  adjacent  property. 

In  the  case  of  Mitchell  against  Milwaukee,  the  contractor  had 
committed  a  breach  of  his  contract,  and  the  city  was  thereby  re- 
leased from  all  obligation  to  permit  him  to  do  the  work.  That  con- 
tract was  at  an  end,  and  the  contract  entered  into  was  a  new  con- 
tract. 

It  does  not  matter  whether  Hider  and  his  surety  were  released 
from  liability  on  the  contract  or  not,  and  therefore  the  other  author- 
ities relied  upon  by  the  counsel  for  the  appellants  are  not  in  point. 
If  it  were  conceded  that  Hider  was  released,  it  would  not  follow 
either  that  the  city  or  property  holders  were  released,  or  that  the 
transfer  of  the  contract  to  appellees  was  the  making  of  a  new  con- 
tract to  improve  i8th  street. 

2.  The  appellants'  ground  all  lies  west  of  Eighteenth  street,  and 
has  not  been  laid  out  into  squares,  and  has  no  streets  running  through 
it  at  right  angles  with  that  street,  and  they  have,  therefore,  no 
corner  lots ;  but  in  making  the  apportionment  against  each  of  them, 
they  were  charged  25  per  cent,  additional  as  upon  comer  lots  30 


J.  S.  Alves,  et  al.,  v.  City  of  Henderson.  451 

feet  wide  and  200  feet  deep.  We  are  of  opinion  that  this  was  in- 
correct.   Dulaney  &  Co,  v,  Bownian  &  Co.,  Mss.  Opinion. 

It  is  only  when  the  ground  has  been  divided  into  squares  that  the 
charter  authorizes  an  additional  assessment  upon  corner  lots,  and  as 
the  appellants  pointed  out  in  their  answer,  this  specific  error  in  the 
apportionment  it  should  have  been  corrected.  It  is  true  the  error 
amounts  to  but  little,  but  the  amounts  are  sufficient  to  prevent  the 
cases  from  falling  within  the  maxim  that  the  law  does  not  regard 
small  matters. 

Wherefore  the  judgments  against  the  appellants,  Bristow,  Merri- 
weather,  and  Cain  and  wife  are  each  reversed,  and  the  causes  are 
remanded  with  directions  to  correct  the  apportionment  as  herein 
directed,  and  then  to  render  judgment  for  the  amounts  thus  ascer- 
tained to  be  due. 

A,  E.  Wilson,  Barr  &  Goodloe,  Humphreys,  for  appellants, 
Russell  &  Helm,  T,  L,  Bennett,  for  appellees. 


J.  S.  Alves,  et  al.,  v.  City  of  Henderson. 

Bonds  of  City  Marshal — Liability  of  Sureties. 

Where  the  law  requires  the  city  marshal  to  execute  two  bonds,  one 
conditioned  that  he  will  account  to  the  city  for  taxes  collected  each 
year  and  the  other  conditioned  that  he  will  account  for  all  moneys 
coming  into  his  hands  in  discharging  his  general  duties,  etc.,  and 
such  officer  fails  to  account  for  money  collected  on  execution  by  him, 
only  the  sureties  on  the  general  bond  are  liable  and  not  those  on  the 
bond  relating  to  the  collection  of  city  revenues. 

APPEAL  FROM  HENDERSON  CIRCUIT  COURT. 

February  13,  1875. 

Opinion  ijv  Judge  Cofkr: 

The  charter  of  the  city  of  Henderson  provides  for  the  execution 
by  the  marshal  of  two  bonds,  corresponding  in  some,  if  not  in  all 
respects  to  the  bonds  required  by  the  general  law  to  be  given  by 
sheriffs. 

The  bond  filed  with  the  original  petition  was  Gayle's  official  bond, 
as  contradistinguished  from  his  revenue  bond ;  and  his  sureties  on 
that  bond  are  alone  liable  for  his  failure  to  pay  over  to  the  city 
treasurer  money  collected  on  executions  placed  in  his  hands  in 
favor  of  the  citv. 


452  Kentucky  Opinions. 

The  bond  filed  with  the  amended  petition,  although  its  terms  are 
comprehensive  enough  to  include  the  money  sued  for  in  this  action, 
was  taken  under  Sec.  9  of  Art.  9  of  the  charter,  and  was  intended 
to  secure  the  revenue  of  the  city,  which  might  come  to  the  hands 
of  the  marshal  from  taxes,  penalties,  etc.,  which  he  was  directed  or 
authorized  by  law  to  collect  and  receive.  This  we  understand  to 
include  only  such  money  as  he  might  collect  in  virtue  of  his  office  as 
collector  for  the  city,  and  not  such  as  he  might  collect  under  final 
process  issued  by  a  court,  and  which  might  have  been  collected 
as  well  by  any  other  collecting  officer  of  the  county.  Unless  there 
was  some  such  distinction  as  this  in  the  mind  of  the  legislature,  there 
would  seem  to  have  been  no  reason  for  requiring  the  first  bond ;  and 
this  view  is  strengthened  by  the  fact  that  the  second  bond  is  required 
by  a  provision  of  the  9th  article,  which  is  entitled'  "Assessment  and 
Collection  of  Taxes,"  and  relates  alone  to  the  mode  of  assessing  and 
collecting  taxes,  and  the  property  and  persons  subject  to  taxation. 

Sec.  10  of  that  article  prescribes  the  qualification  of  the 
marshal's  sureties  on  the  bond  provided  for  by  the  preceding  section, 
and  provides  that  they  shall  be  jointly  worth  a  sum  equal  to  the 
^^g^&regate  amount  of  revenue  to  be  collected  for  the  year ;  and  Sec. 
1 1  provides  that  the  city  shall  have  a  lien  on  the  property  of  the 
marshal  until  he  "obtains  a  quietus  for  all  revenue  and  public  dues 
for  which  he  is  bound."  Money  collected  on  fi.  fa.  is  not  either 
revenue  or  public  dues,  within  the  meaning  of  these  terms  as  used 
in  this  connection,  nor  is  the  term  quietus  ordinarily  applied  to  an 
acquittance  for  money  collected  on  executions ;  but  these  terms  are 
all  such  as  are  commonly  used  only  in  the  revenue  laws  in  relation 
to  that  which  is  technically  public  revenue. 

The  first  sentence  of  the  section  under  which  the  bond  on  which 
appellants  are  sureties  provides  that  the  city  marshal  shall,  by  virtue 
of  his  office,  be  collector  of  the  taxes,  and  then  follows  the  require- 
ment that  he  shall  in  May  or  June  of  each  year  execute  bond  to  the 
city,  etc. 

These  considerations  point  clearly  to  the  conclusion  that  the  bond 
in  question  was  only  intended  to  secure  the  reveue  proper  of  the 
city,  and'  that  only  the  sureties  in  the  bond  required  by  Sec.  16 
of  Art.  6  are  responsible  for  defalcations,  such  as  are  sued  for 
in  this  case. 

The  court,  therefore,  erred  in  not  carrying  the  city's  demurrer  to 
the  answer  of  the  appellants  back  to  the  petition,  which,  for  the 
reasons  herein  given,  failed  to  state  facts  constituting  a  cause  of 


A.  Ham  Ayer  v.  James  Waltrip's  Adm'r,  et  al.         453 

action  against  the  sureties   in   the   bond   filed   with   the   amended 
petition. 

Wherefore  the  judgment  is  reversed  as  to  J.  S.  Alves  and  L.  H. 
Lambert,  and  the  cause  is  remanded  with  direction  to  dismiss  the 
petition  as  to  them. 

Clay  &  Coleman,  for  appellants, 

Vance  &  Merrit,  Trufier  &  Trafton,  for  appellee. 


A.  Ham  Ayer  v,  James  Waltrip's  Adm'r,  et  al. 

Pleading — ^Amendments. 

Under  (  161,  Civil  Code,  the  court  is  authorized  to  allow  amend- 
ments to  pleadings,  conforming  the  pleadings  to  the  facts  proven, 
when  to  do  so  will  not  substantially  change  the  claim  or  defense,  but 
a  defendant  who  has  answered  and  given  some  proof  to  sustain  it, 
cannot  go  on  the  witness  stand  and  swear  to  an  entirely  dllferent 
state  of  facts  and  then  expect  the  court  to  allow  him  to  amend  hla 
answer  to  conform  thereto,  especially  when  he  offers  no  excuse  for 
his  failure  to  rely  upon  his  original  answer. 

APPEAL  FROM  McLEAN  CIRCUIT  COURT. 

February  16,  1875. 

Opinion  by  Judge  Lindsay: 

Sec.  161,  Civil  Code  of  Practice,  authorizes  the  courts  to  allow 
amendments  in  furtherance  of  justice,  by  conforming  the  pleadings 
to  the  facts  proved,  when  the  amendment  does  not  change  substan- 
tially the  claim  or  defense.  But  where,  as  in  this  case,  a  defense 
has  been  set  up  by  answer,  and  the  defendant  then  puts  himself 
upon  the  witness  stand,  and  swears  to  facts  utterly  irreconcilable 
with  his  answer,  it  is  an  abuse  of  discretion  to  allow  him  to  abandon 
his  original,  and  set  up  a  new  defense,  under  the  pretext  of  con- 
forming his  pleadings  to  the  proof.  And  more  especially  is  this  so 
when  he  offers  no  reason  or  excuse  for  his  failure  to  rely  on  his 
original  answer,  upon  the  facts  to  which  he  deposed  as  a  witness, 
and  which,  if  true,  were  known  to  him  when  he  first  answered. 
Further  than  this,  when  the  amended  answer  was  permitted  to  be 
filed,  his  pleadings  then  contradicted  each  other,  and  no  attempt  was 
made  to  explain  the  contradiction.  The  court  had  no  means  of  de- 
termining which  of  the  two  answers  was  true,  and  outside  of  the 


454  Kentucky  Opinions. 

proof  might  have  set  one  off  against  the  other,  and  disregarded 
both.  But  independent  of  the  pleadings,  the  weight  of  the  testi- 
mony is  against  the  claim  asserted  by  appellee. 

Bryant's  statement  that  appellee  told  him  that  the  conveyance  by 
Waltrip  was  a  contrivance  to  avoid  the  payment  of  the  grantor's 
debts  is  uncontradicted,  except  by  appellee  himself.  All  the  circum- 
stances proved,  tend  to  show  that  the  conveyance  was  so  intended ; 
and  the  payment  of  money,  in  the  presence  of  Wall,  is  calculated  to 
confirm  rather  than  to  weaken  this  conclusion.  Appellees  are  unable 
to  tell  how  much  money  (whether  $500  or  $600)  he  paid  to  Waltrip, 
and  Wall  swears  that  he  was  sent  for,  and  was  present  to  see  the 
money  paid.  After  the  pretended  purchase,  the  crops  raised  on  the 
land  were  divided  between  the  vendor  and  vendee;  and  when  Wal- 
trip died,  not  one  cent  of  the  amount  paid  to  him  in  the  presence 
of  Wall  passed  to  his  administrator,  and  no  account  is  given  of  his 
having  in  any  way  appropriated  the  money  during  the  short  time  he 
lived  after  its  pretended  payment  to  him. 

Judgment  reversed  and  cause  remanded,  with  instructions  to  sub- 
ject the  land  to  the  payment  of  appellant's  claim. 

/.  C.  Jonson,  for  appellant,    Geo.  A,  Prentice,  for  appellees. 


Adams  Express  Co.  v.  J.  J.  Guthrie. 

Public  Carriers— Special  Contract — ^Burden  of  Proof. 

When  it  appears  by  the  proof  that  a  special  contract  was  made 
with  a  carrier  for  the  delivery  of  freight  under  circumstances  of 
fairness  and  good  faith,  the  burden  is  on  the  shipper  to  show  that 
the  contract  ought  not  to  be  enforced  because  unfair  and  of  its  hav- 
ing been  imposed  upon  him  in  a  way  that  prevented  him  from  exam- 
ining it  and  understanding  it. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

February  18,  1875. 


Opinion  by  Judge  Peters: 

In  the  opinion  delivered  by  this  court  in  this  case,  when  it  was 
here  on  a  former  occasion,  it  is  said  it  is  only  necessary  that  the 
carrier  shall  satisfactorily  prove  that  a  special  contract  was  made, 
under  circumstances  indicating  fairness  and  good  faith;  and  it  is 


Adams  Express  Co.  v,  J.  J.  Guthrie.  455 

then  incumbent  on  the  shipper  to  show  that  the  contract  ought  not,  * 
for  some  of  the  reasons  indicated,  be  enforced  against  him. 

It  appears  from  the  evidence  that  Curran,  Goodwin,  Walker  & 
Co.,  a  firm  of  merchants  in  the  city  of  New  York,  were  made  by 
appellee  his  agents  to  contract  for  the  transportation  of  the  package 
of  goods,  for  which  this  suit  was  brought,  to  him  in  Paducah,  Ky., 
with  appellant,  and  in  making  them  his  agents,  he  did  not  restrict 
or  limit  them  to  any  particular  form  of  contract  for  the  transporta- 
tion of  said  package.  The  evidence  conduces  to  show  that  they 
contracted  with  appellant  to  transport  said  package  to  appellee  on 
the  terms  and  according  to  the  stipulations  contained  in  the  writ- 
ing filed  in  the  case,  and  made  part  of  John  J.  CuUen's  deposition, 
and  in  which  it  is  expressly  stipulated  that  appellant  is  not  to  be  held 
liable  for  any  loss  or  damage  to  said  property  while  being  trans- 
ported by  it  to  its  destination,  arising  from  dangers  of  railroad, 
ocean  or  river  navigation,  steam,  fire  in  stores  or  depots,  or  from 
any  cause  whatever,  unless  in  every  case  the  same  be  proved  to  have 
occurred  from  the  fraud  or  gross  negligence  of  said  express  com- 
pany or  its  servants. 

If  the  agreement  in  paper  "B,"  relied  upon  by  appellant,  was  en- 
tered into  by  the  agents  of  appellee  with  it,  it  must  be  regarded  as 
the  contract  of  the  parties,  unless  it  was  not  made  freely  and  under- 
standingly  on  the  part  of  said  agents ;  and  it  devolved  on  appellee 
to  show  that  fact  by  evidence.  The  delivery  of  the  paper  "B"  by 
appellant  to  Curran,  Goodwin,  Walker  &  Co,  and  the  acceptance  of 
it  by  them  as  the  agents  of  appellee,  is  pritna  facie  evidence  that  the 
terms  and  stipulations  therein  contained  were  agreed  upon  by  the 
parties,  and  is  binding  on  them  Appellee  cannot  avoid  it,  unless  he 
shows  that  said  writing  was  imposed  upon  his  said  agents,  in  a  way 
that  prevented  them  from  examining  said  paper,  and  understanding 
its  contents.  As  instructions  "Nos.  i,  2  and  3"  given  to  the  jury  at 
the  instance  of  appellee,  do  not  conform  to  the  law  of  the  case  as 
expounded  by  this  court,  they  should  have  been  refused  by  the  court 
below,  and  the  judgment  must  be  reversed  and  the  cause  remanded 
for  a  new  trial,  and  for  further  proceedings  consistent  herewith. 

Thomas  E.  Moss,  for  appellant. 

L.  D.  Husbands,  Marshall  &  BloomHeld,  for  appellee. 


456  Kentucky  Opinions. 

J.  Boone,  et  al.,  v,  J.  N.  B.  Hardwicke's  Adm'r. 
J.  Boone,  et  al.,  v.  T.  C.  Barn's  Adm'r. 

Suit  on  Injunction  Bond — Recovery. 

A  requirement  in  an  injunction  bond  that  tlie  obligors  would  pay 
and  satisfy  any  modified  judgment  that  might  be  rendered  is  mere 
surplusage,  since  the  judgments  were  not  enjoined.  The  only  obligar 
tion  on  said  bond  was  to  pay  all  costs  and  damages  that  might  be 
awarded  in  case  the  injunction  should  be  dissolved. 

Measure  of  Damages. 

Only  such  damages  caused  by  the  delay  in  selling  the  land  may  be 
recovered  on  a  bond  given  for  an  injunction  against  such  sale  and 
the  recovery  can  then  only  be  had  unless  assessed  at  the  time  the 
injunction  was  dissolved  as  required  by  the  statute. 

appeal  from  POWELL  CIRCUIT  COURT. 

March  20,  1875. 

Opinion  by  Judge  Lindsay: 

The  petition  upon  which  Barzella  Grooms  obtained  the  order  of 
injunction,  restraining  appellees  from  proceeding  to  sell  the  tract  of 
land  adjudged  to  be  sold  in  satisfaction  of  their  claims  against  Madi- 
son Grooms,  shows  that  she  did  not  ask  that  they,  or  either  of  them, 
should  be  restrained  from  proceeding  to  enforce  their  judgments  as 
against  their  debtor. 

The  prayer  of  the  petition  is  that  they  shall  be  restrained  "from 
selling  said  land."  The  order  of  injunction  is  not  copied  in  the  rec- 
ord, but  we  must  presume  that  it  was  such  an  order  as  was  asked  for, 
and  that,  notwithstanding  its  existence,  the  appellees  were  free  to 
pursue  their  personal  remedies  against  their  debtor,  being  restrained 
only  from  selling  the  tract  of  land.  The  bonds  required  by  the  clerk 
were  not  such  as  he  ought  to  have  taken.  There  was  no  necessity 
for  the  appellant  and  her  sureties  to  stipulate  that  they  would  satisfy 
the  judgments  in  favor  of  appellees  against  the  third  party,  Madison 
Grooms,  nor  that  they  would  satisfy  any  modified  judgment  that 
might  be  rendered.  As  these  judgments  were  not  enjoined,  these 
stipulations  were  mere  surplusage.  Covenants  resting  on  no  con- 
sideration are  not  authorized  or  required  by  law.  The  only  enforce- 
able stipulation  in  the  bond  is  the  agreement  to  pay  all  costs  and 
damages  that  might  be  awarded  in  case  the  injunction  should  be  dis- 
solved.  Sec.  307,  Civil  Code  of  Practice. 

Appellees,  therefore,  have  no  right  to  recover  on  these  bonds  more 


A.  T.  AuLicK  AND  Wife  v.  T.  P.  Fishback,  et  al.       457 

than  they  were  damaged  by  being  delayed  in  selling  the  land,  and 
not  that  amount,  unless  it  was  assessed  as  required  by  Sec.  325 
of  the  Civil  Code  of  Practice,  at  the  time  the  injunction  was  dis- 
solved, and  by  the  court  rendering  the  judgment  dissolving  it. 

The  judgments  are  reversed  and  the  causes  remanded  for  further 
proceedings  not  inconsistent  with  this  opinion. 

Apperson  &  Reid,  for  appellants.  H.  C,  Lilly,  for  appellees. 


A.  T.  AuLiCK  AND  Wife  v,  T.  P.  Fishback,  et  al. 

Lost  Wills — Competency  of  Jurors. 

In  a  trial  to  establish  a  lost  will  a  challenge  of  a  Juror  should  be 
sustained  where  it  is  shown  that  the  Juror's  mother  was  a  cousin  of 
the  testator  and  also  related  to  both  parties  to  the  suit. 

T 

Admissibility  of  Evidence. 

Where  in  a  petition  to  establish  the  terms  of  a  lost  will  a  paper 
filed  with  the  petition  is  not  a  copy  of  the  will  but  was  written  by 
the  draftsman  from  memory  more  than  eight  months  after  the  will 
was  prepared  and  after  he  had  last  seen  it,  it  is  not  competent  to  be 
read  to  the  Jury  for  any  purpose.  Such  a  writing  might  be  referred 
to  by  the  draftsman  to  refresh  his  recollection  as  a  witness  but  is 
not  evidence  to  be  read  to  the  Jury. 

APPEAL  FROM  BRACKEN  CIRCUIT  COURT. 

March  3,  1875. 

Opinion  by  Judge  Cofer: 

About  the  3d  of  April,  1871,  Josiah  Fishback,  a  citizen  of  Bracken 
county,  made  and  published  a  last  will  and  testament,  with  all  the 
formalities  required  by  the  statute  of  wills.  Some  weeks  after  the 
will  was  made,  Fishback  being  then  in  feeble  health,  and  having 
no  immediate  family  residing  with  him  except  his  son,  John  P.  Fish- 
back, then  thirteen  or  fourteen  years  of  age,  left  his  home  in  charge 
of  a  family  that  resided  with  him,  and  went  to  the  house  of  his 
sister  in  Pendleton  county,  where  he  died  on  the  7th  of  July  fol- 
lowing. 

Some  time  after  his  death  his  son,  John  P.  Fishback,  by  his  statu- 
tory guardian,  filed  in  the  Bracken  county  court  a  petition,  in  which 
he  alleged  the  execution  of  the  will,  and  that  it  had  been  lost.  He 
filed  with  his  petition  what  he  alleged  to  be  a  copy  of  the  will,  and 
making  his  sister,  Mrs.  Aulick,  and  her  husband  defendants,  sought 


458  Kentucky  Opinions. 

to  have  the  contents  of  the  will  ascertained  and  admitted  to  record. 
The  case  was  heard  in  the  county  court,  and  the  paper  filed  with 
the  petition  was,  with  slight  modifications,  declared  to  be  the  last 
will  and  testament  of  Josiah  Fishback,  and  as  such  was  admitted 
to  record. 

From  this  judgment  Aulick  and  wife  prosecuted  an  appeal  to  the 
circuit  court,  when  a  trial  by  jury  was  had  and  a  verdict  rendered 
that  the  paper  as  probated  in  the  county  court  was  the  will  of  Fish- 
back;  and  a  judgment  having  been  rendered  on  the  verdict,  Aulick 
and  wife  have  appealed  to  this  court. 

A  panel  of  the  jury  having  been  demanded,  and  such  party  having 
stricken  from  the  list  the  names  of  the  jurors,  the  remaining  twelve 
were  called,  when  the  appellants  objected  to  one  of  them  on  the 
ground  that  he  was  related  by  consanguinity  to  both  parties,  when 
the  juror  stated  tjiat  his  mother  was  a  cousin  of  the  decedent,  Josiah 
Fishback ;  but  the  court  overruled  the  appellants'  objection,  to  which 
they  excepted. 

Our  statute  has  prescribed  the  qualification  of  jurors,  but  has  not 
designated  the  causes  of  challenge,  and  resort  must,  therefore,  be 
had  to  the  rules  of  the  common  law. 

That  a  juror  is  of  kin  to  either  party  within  the  ninth  degree  is 
cause  of  challenge.  3  Blackstone  363 ;  Dcdley  v.  Gaines,  i  Dana  529. 
Whether,  if  a  juror  be  equally  related  to  both  parties,  it  will  in  all 
cases  be  good  ground  of  challenge,  we  need  not  decide;  but  under 
the  peculiar  circumstances  of  this  case,  we  have  no  doubt  but  the 
challenge  should  have  been  allowed.  The  father,  brothers,  sister, 
and  nephew  of  the  decedent,  all  of  whom  were  related  to  the  juror, 
were  the  principal  witnesses  for  the  aippellees,  while  but  few,  if  any, 
of  the  appellants'  witnesses  were  related  to  either  party. 

It  is  probable  that  under  such  circumstances  the  juror  would, 
from  an  involuntary  partiality  for  his  kindred,  be  inclined  to  look 
more  favorably  upon  their  testimony  in  all  matters  in  which  their 
statements  might  conflict  with  the  statements  of  strangers,  called  as 
witnesses  on  the  other  side.  Under  such  circumstances  it  is  no  dis- 
paragement of  the  juror  to  say  that  it  is  not  probable  that  he  was 
an  impartial  trier  of  the  facts  of  the  case. 

It  is  true  the  court  may  not  have  known  the  facts  rendering  it 
peculiarly  improper  that  the  juror  should  sit  in  the  case,  but  the 
appellee  or  his  counsel  and  guardian  must  have  known  it,  and  should 
have  withdrawn  him,  or  consented  that  his  name  should  be  stricken 


A.  T.  AuLiCK  AND  Wife  v.  T.  P.  Fishback,  et  al.        459 

from  the  list ;  and  having  failed  to  do  so,  the  court,  when  apprized 
of  the  facts,  should  have  granted  a  new  trial. 

The  paper  filed  with  the  petition  was  not  a  copy  of  the  will,  but 
was  written  by  the  draftsman  from  memory,  eight  or  ten  months 
after  the  will  was  prepared,  and  after  he  had  last  seen  it.  This 
paper  was  allowed  to  be  read  to  the  jury  as  evidence  against  the 
objections  of  the  appellants.  It  was  certainly  not  competent,  and 
should  not  have  been  read  to  them  for  any  purpose,  nor  should  it 
have  been  allowed  to  go  before  them  in  any  manner.  It  was  not 
legal  evidence,  either  of  the  fact  that  a  will  had  been  made  or  of  its 
contents,  and  it  could  not  have  had  any  effect  not  prejudicial  to  the 
appellants.  The  only  legitimate  use  to  which  the  paper  could  have 
been  put  was  to  refresh  the  memory  of  the  witness  who  wrote  it, 
and  no  other  witness  should  have  been  allowed  to  use  it  even  for 
that  purpose. 

We  see  no  impropriety  in  allowing  the  draftsman  to  look  at  it  to 
refresh  his  memory,  but  when  he  had  done  so  he  should  have  spoken 
from  memory,  and  not  from  the  paper.  That  the  memorandum  was 
made  after  the  lapse  of  several  months,  does  not  seem  to  us  to  be 
a  sufficient  reason  for  refusing  to  allow  the  witness  to  look  at  it, 
for  as  it  is  from  memory,  and  not  from  the  paper,  that  he  is  al- 
lowed to  speak,  it  would  seem  that  it  is  immaterial  by  what  means 
the  facts  are  recalled  to  his  mind.  But  the  fact  that  it  was  not  made 
until  after  a  considerable  time  had  elapsed  would  be  a  proper  sub- 
ject to  be  considered  by  the  jury  in  weighing  his  testimony. 

The  judgment  should  have  set  forth  in  full,  the  will  as  found  by 
the  verdict,  instead  of  referring  to  the  verdict  for  modifications  of 
the  will  as  recorded. 

We  cannot  decide  whether  on  the  evidence  the  jury  should  have 
found  that  the  will  had  been  revoked.  Under  the  law  as  it  now 
stands  we  must  give  to  verdicts  in  will  cases  the  same  weight  that 
we  do  in  other  civil  cases.  Sec.  27,  Chap.  113,  General  Statutes.  As 
the  evidence  on  this  point  is  of  such  a  character  that  a  verdict  either 
way  could  not  be  disturbed  by  this  court,  if  the  question  had  arisen 
in  an  ordinary  action,  we  are  not  authorized  to  disturb  it  in  this  case. 

For  the  errors  indicated  the  judgment  is  retfcrsed,  and  the  cause 
is  remanded  for  a  new  trial  upon  principles  not  inconsistent  with  this 
opinion. 

A,  R.  Clark,  A.  Diivall,  for  appellants,    B.  G.  Willis,  for  appellees. 


460  Kentucky  Opinions. 

A.  Boyd,  et  al.,  v,  A.  D.  Thomas,  et  al. 

Appeal — Limitations  Presented  by  Plea. 

The  three  years  limitation  which  bars  an  appeal  to  this  court  must 
be  presented  by  a  plea  and  cannot  be  made  available  by  being  incor- 
porated into  a  brief. 

Time  to  File  Plea. 

The  Court  of  Appeals  on  its  own  motion  may  give  appellee  time  in 
which  to  file  a  plea  of  the  limitations  barring  an  appeal  after  three 
years. 

APPEAL  FROM  BATH  CIRCUIT  COURT. 

March  24,  1875. 

Opinion  by  Judge  Lindsay: 

The  three  years  limitation  that  bars  an  appeal  to  this  court  must 
be  presented  by  plea.  It  cannot  properly  be  incorporated  into  a 
brief,  and  thereby  made  available.  The  manner  in  which  it  is  here 
presented  does  not  seem  to  be  objected  to  by  appellant,  but  as  the 
record  of  the  case  does  not  show  that  the  statute  was  pleaded,  we 
cannot  assume  that  appellant  has  waived  his  right  to  object. 

The  court,  of  its  own  motion,  sets  aside  the  hearing,  to  give  ap- 
pellees an  opportunity  to  file  a  plea  in  case  they  desire  to  do  so. 
The  case  will  remain  open  until  the  loth  of  April,  when  it  will  be 
again  submitted. 

Nesbitt  &  Gudgell,  for  appellants.    Reid  &  Stone,  for  appellees. 


Board  of  Trustees  of  Columbia  v.  T.  H.  Curd,  et  al. 

Officers  of  Towns — Marshal. 

Before  a  town  marshal  can  be  compelled  to  pay  over  public  money 
some  party  entitled  to  receive  it  must  make  demand  therefor. 

Town  Trustees. 

Town  trustees  have  no  right  to  the  possession  of  the  publio  funds 
and  are  not  proper  parties  to  demand  them  from  the  marshal. 

APPEAL  FROM  ADAIR  CIRCUIT  COURT. 

March  31,  1875. 

Opinion  by  Judge  Pryor  : 

There  is  no  allegation  of  a  demand  of  the  marshal  by  any  party 


Wm.  M.  Hibbard  v.  W.  S.  Watson,  et  al.  461 

entitled  to  the  money  alleged  to  be  in  his  hands.  Before  a  collection 
officer  can  be  compelled  to  pay  such  moneys,  some  party  must  be 
designated  to  whom  the  payment  is  to  be  made,  unless  the  charter 
in  this  case  regulates  the  manner  of  payment.  If  to  be  paid  to  the 
town  treasurer,  he  must  make  the  demand,  and  this  fact  must  be 
alleged.  The  trustees  have  no  more  right  to  the  possession  of  the 
funds  than  the  marshal  who  collects  them ;  and  a  payment  by  him 
to  a  trustee  would  not  release  him  from  responsibility.  See  Owens 
V,  Ballard  County  Court,  8  Bush  611.  Judgment  afKrmed. 

Winfrey  &  Winfrey,  for  appellant, 
Alexander,  Dickinson,  for  appellees. 


Wm.  M.  Hibbard  v.  W.  S.  Watson,  et  al. 

Invalid  Execution — Constable  Not  Bound  to  Return  an  Invalid  Execu- 
tion. 

There  is  no  liability  on  a  constable's  bond  for  failing  to  return  an 
invalid  execution. 

Ejection  of  Causes. 

It  is  error  for  the  court  to  require  a  plaintiff  to  elect  which  of  the 
causes  of  action  set  forth  in  his  petition  he  will  prosecute. 

APPEAL  FROM  BALLARD  CIRCUIT  COURT. 

April  2.  1875. 

Opinion  by  Judge  Cofer  : 

The  record  of  the  case  in  which  the  execution  against  Woolfork 
issued,  shows  that  no  judgment  was  ever  rendered  in  that  case,  and 
consequently  that  the  original  execution  was  void;  and  it  results 
that  the  replevy  bond  taken  under  it  was,  at  any  rate,  invalid  as  a 
statutory  bond,  and  no  execution  could  lawfully  issue  upon  it.  As 
the  execution  placed  in  the  hands  of  Watson  issued  on  that  bond, 
and  was  consequently  invalid,  the  failure  to  return  it  did  not  sub- 
ject the  constable  or  his  sureties  to  the  statutory  liability  imposed  on 
constables  for  failing  to  return  executions. 

When  ruled  to  elect  which  of  the  causes  of  action  set  forth  in  the 
petition  as  amended  he  would  prosecute,  the  appellant  elected  to 
proceed  for  the  failure  to  return  the  execution,  and  from  that  time 
forward,  that  was  the  only  cause  of  action  in  the  petition ;  and  as  it 


462  Kentucky  Opinions. 

was  sufficiently  answered  by  the  allegation  that  the  execution  was 
invalid,  and  the  answer  was  sustained  by  the  record,  the  petition  as 
to  that  branch  of  the  case  was  properly  dismissed. 

But  the  appellant  excepted  to  the  order  requiring  him  to  elect 
which  of  the  causes  of  action  he  would  prosecute,  and  the  judgment 
should  be  reversed  if  the  rule  to  elect  was  improperly  made. 

Both  causes  of  action  arose  out  of  alleged  violations  of  Watson's 
bond,  and  we  are  unable  to  discover  any  reason  why  they  could  not 
be  united  in  the  same  petition.  A  recovery  upon  one  would  be  a 
satisfaction  of  the  other;  but  on  the  face  of  the  petition  both  were 
good,  and  neither  should  have  been  stricken  out;  but  the  plaintiff 
should  have  been  allowed  to  go  to  trial  on  both,  and  to  prove  both  if 
he  could,  and  recover  the  highest  amount  to  which  he  would  be  en- 
titled on  either  cause  of  action  made  out  by  the  evidence ;  and  if  he 
failed  to  prove  more  than  one  cause  of  action,  he  should  have  been 
allowed  to  recover  on  that. 

The  order  requiring  the  appellant  to  elect  which  of  the  causes  of 
action  he  would  prosecute,  is  reversed,  and  the  cause  is  remanded 
for  a  new  trial  upon  the  cause  of  action  set  up  in  the  amended  pe- 
tition. 

IV.  P.  Bishop,  for  appellant,     7:.  /.  Bullock,  for  appellees. 


J.   R.   I'xDKRWtKJD.  Ex'r,  T'.   JnO.   BuRTON. 

Decedent's  Estates — ^Judgment  of  a  Foreign  State  Binding  in  Kentucky. 
Where  a  Judgment  establishing  a  claim  against  an  estate  has  been 
entered  in  a  foreign  state  it  will  be  final  here  unless  there  is  soma 
defense  offered  that  did  not  exist  in  the  state  where  entered.  The 
holder  of  such  a  judgment  cannot  be  required  to  establish  his  claim 
here,  but  his  claim  consists  of  the  sum  adjudged  due  him  in  the  Judg- 
ment. 

APPEAL  FROM  BARREN  CIRCUIT  COURT. 

April  10.  1875. 

Opinion  by  Judge  Pryor  : 

The  settlement  of  the  estate  of  James  Brown,  the  elder,  involved 
the  settlement  of  other  estates  and  partnerships  in  the  state  of  Vir- 
ginia, over  which  the  courts  of  Kentucky  had  no  jurisdiction,  either 
of  the  subject  matter  or  the  parties  interested.   The  estate  of  Burr 


J.  R.  Underwood,  Ex  r,  v.  Jno.  Burton.  463 

ton  could  not  have  been  settled  in  Kentucky,  and  the  only  remedy 
that  his  heirs  or  devisees  had,  in  order  to  obtain  an  adjustment  of 
the  accounts  of  James  Brown  as  the  executor  of  the  will  of  Burton, 
was  by  a  proceeding  in  the  courts  of  Virginia.  To  require  such  a 
proceeding  in  Kentucky  would  not  only  be  impracticable,  but  with- 
out any  legal  sanction.  A  majority  of  the  executors  of  James  Brown, 
the  elder,  had  qualified  in  Virginia,  the  place  of  their  testator's  resi- 
dence ;  and  there  was  no  one  else  against  whom  the  heirs  and  dev- 
isees of  Burton  could  proceed  to  recover  their  patrimony. 

The  proceeding,  however,  in  Virginia  was  instituted  by  James 
Brown's  executors  for  a  settlement  of  his  estate,  and  a  settlement 
of  his  accounts  as  the  executor  of  the  will  of  Burton.  To  this  pro- 
ceeding Burton's  devisees  were  made  defendants,  and  asserted  their 
claim  as  such  to  the  money  and  property  that  had  passed  to  James 
Brown,  as  executor,  and  for  which  he  had  never  accounted.  The 
Virginia  court  ascertained  the  definite  amount  due  John  Burton, 
the  appellee  in  this  case,  and  gave  him  an  unconditional  judgment 
for  the  money.  The  court  reserved  by  the  judgment  the  right  of 
determining  the  personal  liability  of  the  executors  of  James  Brown, 
and  also  directs  the  sale  of  certain  property,  in  order  that  distribu- 
tion may  be  made.  It  is  alleged  by  the  appellee  that  he  had  received 
nothing  upon  his  judgment  in  Virginia;  and  if  he  has,  the  Kentucky 
executor  and  trustee  should  make  it  appear,  as  this  is  the  character 
of  defense  he  should  be  allowed  to  make. 

After  a  litigation  of  thirty  or  forty  years  in  Virginia  with  two  of 
the  executors  of  Brown,  in  order  to  determine  what  the  appellee  was 
entitled  to,  it  is  now  insisted  that  all  these  matters  should  be  re- 
litigated  in  Kentucky  in  an  action  against  the  Kentucky  executor. 
If  this  executor  is  allowed  to  thus  resist  the  claim  of  the  appellee, 
or  to  plead  the  statute  of  limitations,  it  is,  in  fact,  annulling  the  judg- 
ment of  the  Virginia  court,  and  enabling  the  Kentucky  executor  to 
sell  the  trust  estate  in  Kentucky,  and  pay  over  the  proceeds  to  the 
Virginia  executors,  and  heirs  or  devisees  of  James  Brown,  with 
whom  appellee  has  been  litigating,  and  against  whom  the  judgment 
sought  to  be  enforced  was  obtained.  The  present  claim  of  the  ap- 
pellee is  based  on  that  judgment,  and  it  must  be  regarded  as  final, 
unless  there  is  some  defense  offered  by  the  present  appellant  that 
did  not  exist  in  Virginia,  affecting  the  merits  of  the  controversy. 
No  such  defense  is  relied  on  in  this  case.  The  estate  of  Brown 
must  be  regarded  as  a  unit,  and  the  executors  of  his  will,  however 
numerous,  constitute  only  one  representative. 


464  Kentucky  Opinions. 

If  the  two  executors  in  Virginia  had  settled  with  Burton  without 
the  intervention  of  a  court  of  equity,  it  would  have  been  binding  on 
the  Kentucky  executor,  in  the  absence  of  any  defense  showing  that 
some  injustice  had  been  done  the  estate.  We  do  not  mean  to  say 
that  the  Kentucky  executor  could  make  no  defense.  He  would  be 
allowed  to  show  payments,  if  any,  made  by  him,  or  to  make  any 
other  defense  to  the  merits  known  to  the  Virginia  executors.  The 
Virginia  executors  may  yet  show,  even  after  judgment,  a  payment 
reducing  the  amount  by  the  Kentucky  executors,  but  to  require  that 
the  claimant  must  establish  his  original  claim  as  against  the  estate 
when  once  reduced  to  judgment,  in  attempting  to  make  his  mcwiey 
out  of  an  executor  in  a  case  like  this,  who  was  not  before  the  court, 
would  defeat  the  ends  of  justice  and  enable  such  litigation  to  con- 
tinue without  limit.  This  party  appellee,  has  been  kept  out  of  his 
money  for  more  than  half  a  century  by  the  default  of  the  executors 
of  his  father's  will ;  and  the  representatives  of  that  executor  ought 
now  to  pay  the  money,  if  the  estate  of  their  testator  is  sufficient  for 
that  purpose. 

As  to  the  interest  of  the  appellee  in  the  estate  of  James  Brown, 
Jr.,  in  the  lands  in  Kentucky,  there  can  be  but  little  question.  The 
lands  in  Kentucky  were  conveyed  to  the  appellant  and  others  in  trust 
for  certain  specified  purposes,  viz.,  for  the  payment  of  certain  lia- 
bilities, and  among  them  the  claims  of  the  devisees  of  Burton.  After 
the  execution  of  the  trust,  the  trust  property  consisting  of  these 
lands  belonged  to  James  Brown.  He  owned  the  estate,  subject  to 
the  incumbrances  created  by  this  deed.  It  is  true  that  the  trustees 
were  invested  with  the  legal  title;  but  this  did  not  deprive  the 
grantee  or  his  heirs  of  the  right  to  the  land  left  after  paying  the 
debts.  At  the  death  of  James  Brown  this  interest  would  have  passed 
by  descent  to  his  heirs ;  and  certainly  he  had  the  right  to  dispose  of 
it  by  will.  His  will,  made  in  1841,  gave  his  estate  to  his  seven  chil- 
dren, James  Brown,  Jr.,  being  one  of  them.  Burton  was  a  half 
brother  of  James  Brown,  Jr.,  and  whilst  he  may  not  have  any  of  the 
blood  of  James  Brown's  son  in  his  veins,  he  has  some  of  the  blood 
of  James  Brown,  Jr.,  and  for  this  reason  is  permitted  by  the  statute 
to  inherit.  We  cannot  see  the  force  of  the  argument  by  appellant 
that  this  property,  such  as  was  left  of  it,  passed  only  to  such  of  the 
heirs  as  were  or  might  be  living  when  the  trust  is  finally  settled, 
such  is  not  the  language  of  the  deed,  and  if  James  Brown,  the  elder, 
had  any  interest  in  it,  this  interest  passed  to  his  devisees.  The  ad- 
ministrator of  James  Brown,  Jr.,  is  not  a  necessary  party.  As  such 


J.  R.  Underwood,  Ex'r,  v.  Jno.  Burton.  465 

he  has  no  interest  in  this  trust  estate  and  no  creditor  of  James 
Brown  is  asserting  any  claim  to  his  interest  by  attempting  to  sub- 
ject it. 

The  only  difficulty  we  have  had  in  determining  this  case,  is  upon 
the  cross-appeal  of  the  appellee.  The  Virginia  court  gave  to  the 
appellee  a  judgment  for  the  principal  debt,  with  the  interest,  the 
commissioner's  report  showing  what  the  interest  was.  We  see  no 
reason  why  a  debt  bearing  interest  may  not  be  made  principal  by 
the  judgment  when  rendered.  This  has  often  been  done  in  Ken- 
tucky, and  there  are  strong  reasons  for  applying  the  rule  here.  This 
the  court  would  do  if  such  intention  could  be  gathered  from  the  Vir- 
ginia judgment.  It  is  based  upon  the  commissioner's  report  show- 
ing the  principal  debt,  and  also  the  interest,  the  two  being  kept 
separate.  This  is  no  judgment  for  the  principal  and  interest  added, 
but  a  judgment,  in  effect,  for  the  debt  and  interest.  It  was  not  in- 
tended to  compound  the  interest  by  this  judgment,  and  it  may  be 
questionable  whether  such  a  judgment  could  have  been  rendered 
under  the  law  of  that  state.  The  court  below  has  given  no  interest 
on  the  interest  from  the  date  of  the  commissioner's  report  in  Vir- 
gpinia,  but  has  given  interest  only  on  the  principal.  When  the  final 
judgment  was  rendered  in  1869  by  the  court  below,  the  interest  was 
then  made  principal  and  the  whole  amount  made  to  bear  interest. 
This,  we  are  satisfied,  was  proper,  and  under  the  facts  of  the  case 
such  a  judgment  should  have  been  rendered. 

The  offer  to  pay  the  money  into  court  on  the  principal  was  prop- 
erly refused.  The  same  should  be  applied  first  to  the  interest;  and 
if  appellant's  theory  be  correct,  this  $27,000  was  all  interest ;  if  so, 
it  should  have  been  first  paid,  and  to  determine  otherwise  would  be 
regarding  that  large  sum  as  a  principal  debt  not  bearing  interest, 
and  that  the  debtor  had  the  right  to  apply  his  payment  to  the  debt 
that  was  bearing  interest.  This  would  be  the  correct  practice  if 
such  were  the  facts  of  the  case,  but  it  is  not  pretended  by  appellant 
that  this  large  sum  is  a  part  of  the  principal  debt,  but  only  interest, 
and  if  so  it  should  have  been  first  paid.  This  question,  however,  is 
now  immaterial,  as  it  is  all  made  principal  by  the  judgment  ren- 
dered. The  appellant,  as  the  Kentucky  executor,  brought  this  action 
to  hasten  the  settlement  of  this  large  trust  estate,  for  the  reason  of 
the  manifest  injustice  done  the  parties  interested,  by  the  long  and 
protracted  litigation  in  Virginia.  This  appellee  has  been  kept  out 
of  his  money  for  more  than  sixty  years,  and  whilst  the  neglect  or 
laches  is  not  to  be  attributed  to  the  action  of  the  appellant,  but  to 

30 


466  Kentucky  Opinions. 

those  who  have  been  directly  interested  as  fiduciaries  in  Virginia, 
the  litigation  must  end.  The  judgment  of  the  court  below  is  aMrmed 
on  the  original  and  cross-appeal. 

/,  R.  Underwood,  for  appellants.  Lewis  &  Bales,  for  appellee. 


A.  T.  Stephenson  v.  Stephen  Lillard,  et  al. 


Conveyance  of  Real  Estate— Suit  on  Lien  Notes — Right  of  Vendee  to 
Rent  Land — Right  of  Innocent  Tenant. 

Where  land  Is  sold  on  deferred  payments  and  lien  notes  taken,  and 
the  purchaser  before  foreclosure  of  such  lien,  rents  the  land  to  an 
innocent  tenant,  who  gives  his  notes  for  the  rent,  plaintiff  in  such 
foreclosure  has  no  lien  on  such  notes. 

APPEAL  FROM  MERCER  CIRCUIT  COURT. 

April  13,  1875. 

Opinion  by  Judge  Pryor  : 

The  appellant,  Stephenson,  by  his  action  in  equity  filed  in  Febru- 
ary, 1871,  only  sought  to  enforce  his  contract  for  the  sale  of  the 
land  to  J.  W.  Lillard,  by  asserting  his  lien  as  vendor.  Lillard  had 
obtained  the  possession  of  the  land  from  the  tenant  of  Stephenson ; 
but  whether  this  possession  was  surrendered  by  the  consent  of  the 
latter  does  not  appear,  nor  do  we  think  it  material  in  determining 
the  question  involved  in  this  case.  The  price  to  be  paid  for  the  land 
was  $29,359.50,  payable  in  three  instalments,  and  upon  the  first 
instalment  the  appellee,  Lillard,  was  to  give  one  Ford  as  surety. 
This  he  failed  to  do,  but  after  he  obtained  the  possession,  paid  on 
this  first  note  the  sum  of  six  thousand  dollars,  which  sum  was  ac- 
cepted by  Stephenson,  and  upcm  Lillard's  failure  to  pay  any  more  of 
the  purchase  money,  the  action  to  subject  the  land  was  instituted. 
Lillard  was  evidently  in  no  condition  to  pay  for  the  land,  and  prior 
to  the  termination  of  the  action  had  obtained  his  discharge  in  bank- 
ruptcy. 

That  the  lien  for  the  purchase  money  could  be  enforced  is  not 
questioned,  but  it  is  insisted  by  Stephen  Lillard  that  the  appellant 
had  no  lien  for  or  upon  the  rents  of  the  place,  and  no  lis  pendens  in 
order  to  subject  the  rent  at  the  time  he  became  the  owner  of  the 
rent  note.  No  attachment  was  obtained  by  appellant,  or  the  money 
gamisheed  in  the  hands  of  Ford,  the  renter,  nor  is  there  any  allega- 


A.  T.  Stephenson  v.  Stephen  Lillard,  et  al.  467 

tion  of  fraud  between  the  father  and  son  with  reference  to  the  trans- 
fer of  the  rent  note ;  but  the  whole  right  of  recovery  on  the  part  of 
Stephenson  is  made  to  depend  on  the  question  as  to  whether  or 
not  there  was  a  lis  pendens  as  to  the  subject-matter  when  Ford 
rented  the  land,  and  when  the  note  was  passed  to  Stephen  Lillard. 
If  there  was  no  lien  existing  upon  the  rents  of  the  land,  we  cannot 
well  see  how  or  in  what  manner  the  petition  filed  to  subject  the 
land  to  the  payment  of  the  purchase  money  is  to  be  regarded  as  an 
action  pending  to  enforce  the  claim  for  rent.  The  vendee,  Lillard, 
had  the  right  to  sell  the  land  or  to  rent  it,  the  party  thus  contracting 
with  him,  taking  the  property  subject  to  the  judgment  of  the  chan- 
cellor enforcing  the  lien. 

Conceding  that  a  state  of  facts  might  have  existed  authorizing  the 
chancellor  to  take  the  power  from  the  vendee  and  rent  it  out  before 
final  judgment,  yet,  if  the  vendee  had  himself  rented  it  to  another, 
and  transferred  the  rent  notes,  the  assignee  would  hold  subject 
only  to  be  divested  of  the  rent  from  the  time  the  purchaser  under 
the  judgment  of  sale  was  entitled  to  the  possession.  As  between  the 
parties  to  the  action,  the  chancellor  might  enforce  his  order  and  re- 
quire the  vendee  to  abstain  from  committing  waste,  and  in  some 
cases,  where  the  land  is  being  materially  impaired  in  value,  may  take 
the  possession  and  rent  it  out.  Whether  such  an  order  can  be  made 
as  between  vendee  and  vendor  is  one  of  doubt,  and  not  necessary 
now  to  decide.  It  is  certain,  however,  that  the  vendee  has  the  right 
to  rent  the  premises,  and  if  he  assigns  the  rent  notes,  the  vendor, 
having  no  lien  on  them  or  the  rent,  must  lose  it  or  be  vigilant  in 
reducing  his  purchase  money  to  a  judgment,  and  thereby  end  the 
claim  of  the  vendee  and  his  tenant  by  selling  the  land.  In  this  case 
there  was  no  lis  pendens  or  claim  asserted  to  the  rent,  or  the  right  to 
have  the  land  rented  out,  until  the  month  of  November,  1871,  when 
it  is  admitted  by  appellant  that  the  renting  to  Ford  took  place  in 
the  first  week  in  September,  preceding,  and  is  proven  by  Ford  and 
others  that  he  rented  the  land  on  or  about  the  first  of  August,  1871. 
The  notice  to  Lillard  was  that  at  the  November  term  a  motion  would 
be  made  to  rent  the  land  out,  without  assigning  the  grounds  there- 
for, and  even  if  the  basis  of  the  motion  had  been  given  in  the 
notice,  we  do  not  see  how  it  could  be  made  or  considered  a  part  of 
the  record  until  filed  in  court. 

It  was,  in  fact,  an  amended  pleading  setting  up  a  different  and 
distinct  ground  of  action  not  mentioned  in  the  original  pleading,  nor 
necessarily  one  of  the  incidents  to  such  a  proceeding.     The  land 


468  Kentucky  Opinions. 

being  insufficient  to  satisfy  the  debt,  the  appellant,  for  causes  stated, 
might  have  debts  due  Lillard  garnisheed  in  the  hands  of  the 
debtors  of  the  latter,  or  he  might  (if  the  theory  of  counsel  be  cor- 
rect) have  filed  an  amended  pleading,  alleging  that  the  pr(^erty  was 
being  materially  impaired  or  its  value  greatly  impaired,  so  as  to 
obtain  an  order  renting  the  land  out.  This  would  have  been  a  dif- 
ferent remedy,  as  well  as  a  diflFerent  cause  of  action,  from  the 
original  proceeding,  and  where  other  equities  had  in  the  meantime 
intervened  in  favor  of  those  not  parties,  the  minor  equity  created  by 
such  an  amendment  must  be  regarded  as  subordinate. 

If  the  appellant,  by  reason  of  the  failure  of  Lillard  to  comply 
with  the  contract  by  giving  surety  on  the  first  note,  had  asked  for  a 
rescission  and  a  restoration  of  the  possession,  there  might  be  some 
reason  for  regarding  the  action  as  a  lis  pendens;  but  when  he  is 
attempting  to  sell  the  land  as  Lillard's,  certainly,  as  between  himself 
and  third  parties,  who  have  in  good  faith  rented  the  land  and 
paid  the  rent,  or  assignees  who  have  purchased  the  rent  notes,  he 
can  look  only  to  a  sale  of  the  land  for  his  debt. 

The  evidence  is  that  the  land  was  rented  in  August,  and  the  writ- 
ing executed  in  September  following,  that  Stephen  Lillard  obtained 
the  rent  note  by  surrendering  to  his  son  a  note  he  held  on  him  for 
$2,000.  We  think  Ford  rented  the  land  in  good  faith.  He  paid  a 
fair  price  for  the  land,  and  his  rent  money  was  placed  under  the 
control  of  the  court.  The  facts  may  look  suspicious  with  reference 
to  the  transaction  between  father  and  son,  but  if  so,  there  is  no 
charge  of  fraud,  or  even  any  claim  to  the  rent  note  tmtil  after  the 
case  was  submitted.  The  land  was  rented  and  the  note  held  before 
any  motion  was  made  to  rent  the  land  out,  this  motion  constituting 
the  only  lis  pendens  in  regard  to  the  rent.  It  was  new  matter,  and 
could  not  relate  back  to  the  filing  of  the  original  action,  so  as  to 
aflFect  the  rights  of  third  parties.  Having  rented  the  land,  and  an 
order  having  been  made  that,  in  effect,  deprived  him  of  possessicMi, 
Ford's  only  remedy  was  to  enjoin  the  appellant  from  having  it  en- 
forced, and  his  costs  should  have  been  allowed  him.  The  proof 
established  beyond  controversy  that  the  land  was  rented  by  Ford, 
and  that  he  paid  a  full  equivalent  for  it. 

The  judgment  is,  therefore,  aMrmed  on  the  original  and  reversed 
on  the  cross-appeal  of  Ford,  with  directions  to  enter  a  judgment 


George  F.  Fuller  v,  Louisville  Gas  Co.  469 

in  his  favor  against  appellant  for  his  costs.    Stone  &  Warren  v. 
Connelly,  et  al.,  1  Met.  653. 

John  T.  Spillman,  R.  M.  &  W,  O.  Bradley,  for  appellant. 
T.  C,  Bell,  F.  B,  Thompson,  Sr,,  Thompson  &  Thompson,  fof 
appellees. 


George  F.  Fuller  v.  Louisville  Gas  Co. 

Gas  Meters— Contract  to  Furnish  Gas. 

Where  meters  furnished  to  measure  gas  used  are  not  correct  within 
that  degree  of  accuracy  practicable  to  attain  and  defendant  has 
charged  and  collected  from  plalntifT  an  amount  beyond  the  gas  used, 
plaintiff  is  entitled  to  recover. 

Evidence. 

Before  evidence  of  the  quantity  of  gas  used  by  one  tenant  in  a  given 
house  should  be  allowed  to  go  to  the  jury  to  show  that  another  tenant 
of  the  same  house  used  a  less  amount  of  gas,  it  should  be  made  to 
appear  that  both  tenants  burned  gas  for  an  equal  period  of  time  in 
an  equal  number  of  burners,  etc.,  and  such  evidence  will  never  be 
allowed  to  fix  the  test  of  the  quantity  of  gas  used  when  the  test  by 
meters  is  as  nearly  accurate  as  it  is  possible  for  human  ingenuity 
to  attain. 

APPEAL  FROM  JBFFBRSON  COURT  OF  COMMON  PLEAS. 

April  16,  1876. 

Opinion  by  Judge  Pryor  : 

The  instructions  given  presented  the  whole  law  of  the  case  to 
the  jury.  The  jury  was  told  for  the  plaintiff  that  under  the  con- 
tract, it  was  the  duty  of  the  defendants  to  furnish,  as  nearly  as- 
practicable,  as  many  feet  as  it  received  payment  for.  By  the  third 
instruction,  that  if  the  meters  of  the  defendant,  used  in  the  measure- 
ments of  gas  to  plaintiff,  were  not  correct  within  that  degree  of 
accuracy  which  was  practicable  to  attain,  and  that  defendant  has 
charged  to  and  collected  from  plaintiff  an  amount  beyond  the  gas 
which  he  received,  they  should  find  for  the  plaintiff  to  the  extent 
of  such  overcharge  and  collection;  and  further,  that  plaintiff's 
agreement  to  accept  gas  by  meter  measurement  does  not  affect  his 
right  to  a  measurement  as  nearly  correct  as  practicable.  This 
third  instruction  explained  fully  to  the  jury  what  was  meant  by 
Instruction  No.  2,  in  which  they  were  told  that  it  was  the  duty  of 
the  defendant  to  measure  the  gas  with  reasonable  correctness. 


470  Kentucky  Opinions. 

It  was  shown  by  all  the  witnesses  on  the  subject  that  reasonable 
accuracy  in  the  measurement  was  not  only  all  that  could  be  re- 
quired, but  all  that  could  be  attained,  and  by  most,  if  not  all,  who 
testified  on  this  point,  that  the  meters  used  were  as  correct  in 
measuring  gas  as  it  was  possible  to  make  such  instruments.  Nor 
can  we  perceive  any  error  on  the  part  of  the  court  below  in  refusing 
to  permit  the  testimony  offered  as  to  the  quantity  of  gas  ccmsumed 
in  1868  and  in  1869  to  go  to  the  jury.  After  the  meter  with  which 
the  gas  had  been  measured  had  been  fairly  tested,  the  plaintiff 
offered  to  prove  that  from  November,  1868,  to  April,  1869,  ^^  same 
business  had  been  conducted  in  the  opera  house  as  was  conducted 
from  September,  1870,  to  May,  1871,  the  last  named  months  con- 
stituting the  time  during  which  the  appellant  used  appellee's  gas; 
that  from  November,  1868,  to  April,  1869,  the  house  required  the 
same  average  amount  of  gas  and  light  weekly;  and  that  the  same 
meters,  or  others  similar  and  tested  in  the  same  way,  had  been  used ; 
further,  that  the  defendant's  bills  for  gas  during  the  first  measured 
period  varies  several  thousand  feet  each  month. 

It  is  not  shown  that  the  appellant  was  then  the  proprietor  of  the 
opera  house,  or  had,  during  that  time,  contracted  for  gas  from  the 
company ;  but  on  the  contrary  it  is  to  be  inferred  from  what  appel- 
lant offered  to  prove  that  some  one  else  was  then  controlling  the 
house,  and  although  it  is  stated  that  the  house  required  the  same 
light,  and  that  there  were  the  same  number  of  burners  used  each 
period,  it  is  not  stated  that  the  gas  was  in  fact  used  the  same 
length  of  time,  or  that  the  party  in  possession  between  November, 
1868,  and  1869,  was  as  careful  in  shutting  off  the  gas,  or  in  econ- 
omizing its  use,  as  appellant  had  been.  It  was  an  effort  to  show  that 
the  measurement  was  incorrect  or  the  meters  defective  by  proving, 
or  offering  to  prove,  that  two  or  three  years  previous  there  had  been 
a  discrepancy  in  the  gas  bills  against  the  proprietor  of  the  same 
house,  without  ever  stating  that  the  gas  had  been  burned  for  the 
same  length  of  time  with  the  same  number  of  burners.  The  house 
might  have  required  as  much  gas,  and  still  not  as  much  have  been 
used.  This  character  of  evidence,  if  even  admissible  when  the  facts 
appear  as  indicated  they  should,  in  order  to  make  them  competent, 
would  be  entitled  to  but  little  weight  when  compared  with  the  test 
made  by  men  of  science,  and  were  certainly  incompetent  as  offered 
to  the  jury. 

If  the  facts  offered  to  be  proven  were  such  as  they  are  construed 
to  be  by  counsel  in  argument,  viz.,  that  the  same  meters  with  the 


Commonwealth  v,  Mina  Burschulz,  et  al.  471 

same  business  and  light,  for  the  same  length  of  time,  in  the  same 
house,  and  controlled  by  the  proprietor  or  his  agents,  in  the  same 
manner,  made  the  variance  in  the  measurement  suggested,  there 
would  then  be  no  reason  why  such  evidence  should  not  go  to  the  jury 
upon  the  issue  made.  There  was  no  offer  to  show  that  the  gas 
was  burned  the  same  number  of  nights,  or  the  same  number  of  hours 
each  night ;  and  to  permit  such  proof  would  be  to  measure  appellee's 
gas  by  the  mere  opinions  of  mien  as  to  the  quantity  that  would 
probably  be  consumed  during  any  given  period,  and  this,  by  com- 
paring the  quantity  used  by  one  man  during  one  period,  with  the 
quantity  used  by  another  in  the  same  house  at  a  different  period,  but 
occupying  it  the  same  length  of  time.  Such  a  test  would  not  be 
relied  on,  and  there  is  no  reason  for  adopting  it,  when  there  is  a 
test  approximating  as  near  accuracy  as  it  is  possible  for  human  in- 
genuity to  attain.* 
The  judgment  of  the  court  below  is  therefore  aMrmed. 

M.  Mundy,  for  appellant. 

Barr  &  Goodloe,  Humphreys,  for  appellee. 


Commonwealth  v.  Mina  Burschulz,  et  al. 

Criminal  Law — ^Intoxicating  Liquors — ^Indictment. 

In  charging  a  sale  or  gift  of  spirituous  and  vinous  liquors  to  Intox- 
icated persons.  It  Is  necessary  to  name  the  persons. 

Indictment. 

In  charging  a  sale  of  llquorft  to  minors,  such  minors  must  be  named 
and  It  must  be  averred  that  the  sale  was  made  without  the  special 
written  direction  of  the  father  or  guardian  of  such  minor. 

APPEAL  FROM  HANCOCK  CIRCUIT  COURT. 

June  8,  1875. 

Opinion  by  Judge  Cofer  : 

The  indictment  in  this  case  does  not  sufficiently  charge  a  breach 
of  the  coffee  house  bond  on  which  it  is  based. 

The  particular  facts  should  have  been  stated,  as  that  the  defend- 
ant, Burschulz,  sold  or  gave  spirituous  and  vinous  liquors  to  named 
persons,  who  were  at  the  time  intoxicated  and  acting  in  a  disorderly 
way.  A  charge  that  she  so  sold  or  gave  liquors  to  persons  not 
named  is  too  general,  and  would  not  enable  the  defendant  to  pre- 


472  Kentucky  Opinions. 

pare  for  an  intelligent  defense,  or  to  plead  a  judgment  on  the  indict- 
ment in  bar  of  a  subsequent  prosecution. 

The  charge  that  she  sold  spirituous  and  vinous  liquors  to  minors, 
is  defective  for  the  same,  and  for  the  additional  reason  that  it  is 
not  charged  that  such  selling  was  without  the  special  written  direc- 
tion of  the  father  or  guardian  of  such  minor. 

There  is  no  law  forbidding  or  prescribing  the  manner  or  con- 
ditions upon  which  such  liquors  may  be  sold  to  free  negroes;  and 
consequently  no  degree  of  particularity  could  have  made  the  at- 
tempted charge  of  a  breach  in  that  regard  good. 

The  indictment  is  also  fatally  defective  in  failing  to  charge  that 
the  alleged  selling  and  giving  to  persons  who  were  drunk  and  dis- 
orderly, and  to  minors,  was  in  the  defendant's  coffee  house  or  on  the 
premises  thereof. 

Judgment  affirmed. 

Joltn  Rodman,  for  appellant.     Murray  &  Powers,  for  appellees. 


Commonwealth  v,  George  Norton. 

Bail  Bond — Surrender  by  Bondsmen — Release  from  Liability. 

To  release  a  bondsman  on  a  ball  bond  the  bondsman  at  any  time 
before  a  forfeiture  may  surrender  the  defendant  to  the  jailer  of  the 
county  In  which  the  offense  was  committed,  accompanied  with  a  cer- 
tified copy  of  the  ball  bond  to  be  delivered  to  the  jailer  who  must 
detain  the  defendant  and  give  a  written  acknowledgment  of  the  sur- 
render. 

APPEAL  FROM  KNOX  CIRCUIT  COURT. 

June  8,  1875. 

Opinion  by  Judge  Cofer  : 

George  Norton,  being  in  custody,  charged  with  unlawfully  and 
maliciously  stabbing  and  wounding,  gave  bail,  with  the  appellee  as 
his  surety,  for  his  appearance  at  the  then  ensuing  term  of  the  Knox 
circuit  court;  and  having  failed  to  appear,  his  bond  was  forfeited 
and  a  summons  issued  thereon  which  was  served  on  the  surety,  who 
responded  that  between  the  time  of  executing  the  bond  and  the 
term  at  which  he  undertook  that  Norton  should  appear,  fearing  that 
he  would  leave  the  commonwealth,  he  obtained  a  copy  of  the  bail 
bond,  and  found  the  said  Norton  in  the  power  of  the  sheriflf  of 


R.  J.  Hays  v,  John  Twyman.  473 

Knox  county,  under  arrest  for  malicious  stabbing ;  that  he  delivered 
a  copy  of  the  bond  to  the  sheriff,  who  arrested  Norton  at  his  (ap- 
pellee's) instance,  to  be  taken  to  jail;  that  the  court  before  which 
Norton  was  returned  had  him  put  under  guard  to  be  held  for  trial, 
and  that  while  he  was  so  under  guard,  and  before  the  sheriff  was 
permitted  to  deliver  him  to  the  jailer  under  the  arrest  made  at 
appellee's  instance,  Norton  made  his  escape  from  the  guard. 

The  commonwealth  demurred  to  the  response,  but  the  demurrer 
was  overruled  and  the  proceeding  dismissed. 

"At  any  time  before  the  forfeiture  of  their  bond,  the  bail  may  sur- 
render the  defendant,  or  the  defendant  may  surrender  himself  to  the 
jailer  of  the  county  in  which  the  offense  was  committed;  but  the 
surrender  must  be  accompanied  with  a  certified  copy  of  the  bail 
bond,  to  be  delivered  to  the  jailer,  who  must  detain  the  defendant 
in  custody  therecm  as  a  commitment,  and  give  a  written  acknowledg- 
ment of  the  surrender ;  and  the  bail  shall  thereupon  be  exonerated." 
Sec.  81,  Criminal  Code. 

We  are  not  aware  of  any  other  provision  of  law  under  which 
bail  may  be  exonerated  before  a  forfeiture  of  the  bond.  Having 
become  bound  for  the  appearance  of  Norton,  he  was  at  appellee's 
risk  until  he  should  be  placed  in  the  custody  of  the  jailer ;  and  he 
could  not  rid  himself  of  that  responsibility  by  placing  a  copy  of 
the  bond  in  the  hand  of  the  sheriff  and  causing  him  to  arrest  the 
defendant.  The  law  did  not  make  it  the  duty  of  the  sheriff  to  take 
Norton  into  custody,  so  as  thereby  to  exonerate  his  bail,  and  the 
sheriff  was,  therefore,  the  agent  of  the  appellee,  and  not  the  rep- 
resentative of  the  commonwealth. 

Wherefore  the  judgment  is  reversed,  and  the  cause  is  remanded 
with  directions  to  sustain  the  demurrer,  and  for  further  proceedings. 

John  Rodman,  for  appellant. 


R.  J.  Hays  v,  John  Twyman. 

Principal  and  Surety — Release  of  Surety. 

Any  enforcible  agreement  by  which  a  creditor  gives  indulgence  to 
the  principal  without  the  consent  of  the  surety,  releases  the  surety. 

Release  of  Surety  by  Action  of  Creditor. 

The  act  of  the  creditor  in  staying  an  execution  which  was  a  lien  on 
the  principal's  property  without  the  surety's  consent  releases  the 
surety  to  the  extent  of  the  sum  that  could  have  been  made  out  of 
such  execution. 


474  Kentucky  Opinions. 

APPEAL  FROM  BARREN  CIRCUIT  COURT. 

June  11,  1875. 

Opinion  by  Judge  Cofer  : 

That  any  enforcible  agreement  by  which  a  creditor  gives  indul- 
gence to  the  principal  debtor  without  the  consent  of  the  surety,  ab- 
solves the  latter  from  any  obligation  to  pay  the  debt,  is  too  well 
settled  to  require  either  argument  or  the  citation  of  authority;  and 
it  is  equally  clear  that  the  discharge  of  the  surety  does  not  depend 
in  any  degree  upon  the  question  whether  the  indulgence  given  his 
principal  in  fact  operated  to  his  prejudice.  It  is  sufficient  that  the 
action  of  the  creditor  has  altered  the  terms  of  the  sureties'  obliga- 
tion, by  tying  his  own  hands,  if  but  for  a  single  day,  so  that  he  can- 
not legally  proceed  to  enforce  payment. 

The  evidence  in  regard  to  the  alleged  motion  is  not  entirely 
satisfactory;  but  we  incline  to  the  opinion  that  it  preponderates 
against  the  appellant.  Yates'  testimony  is  strengthened  by  the  ad- 
mitted fact  that  he  was  a  comparative  stranger  to  appellant,  which 
renders  it  not  very  probable  that  he  gave  him  the  pig  without  ref- 
erence to  the  desired  indulgence.  Appellant  knew  that  the  appellee 
was  only  surety,  and  law  and  good  conscience  alike  demanded  that 
he  should  do  no  act  prejudicial  to  appellee,  and  that  the  acceptance 
of  the  pig  and  the  granting  of  indulgence  at  the  same  time,  when 
considered  in  connection  with  the  positive  testimony  of  Yates  that 
he  gave  and  appellant  accepted  it  in  consideration  of  forbearance, 
must  turn  the  scale  against  the  latter. 

But  if  we  are  mistaken  in  regard  to  the  facts  before  referred  to, 
we  think  the  act  of  staying  the  execution  clearly  exonerated  the  ap- 
pellee. The  evidence  shows  that  the  greater  part,  if  not  all  the 
debt,  might  have  been  made  out  of  Yates.  The  execution  had 
created  an  inchoate  lien  on  all  his  property  subject  to  execution,  and 
that  lien  inured  to  the  benefit  of  the  appellee,  but  was  lost  by  the 
act  of  the  appellant ;  and  to  the  extent  that  such  lien  was  waived  by 
the  return,  it  is  well  settled  that  the  surety  is  released. 

It  is  true,  as  argued  by  counsel,  that  the  sheriflF  might  have  levied 
upon  the  property  of  appellee  and  compelled  him  to  pay  the  debt, 
and  that  he  had  a  right  to  pay  and  take  an  assignment  of  the  execu- 
tion, and  then  cause  it  to  be  levied ;  but  it  is  likewise  true  that  the 
sheriff  was  not  bound  to  levy  on  the  property  of  the  surety  until 
he  had  exhausted  the  principal;  and  while  it  was  appellee's  duty 


B.  P.  Mitchell  v.  James  Woodlington,  et  al.  475 

to  pay  the  debt,  it  was  the  appellant's  duty  after  the  lien  was  created 
to  let  the  sheriff  go  on,  without  interference  on  his  part,  to  collect 
the  debt. 

The  appellee  was  bound  to  risk  the  action  of  the  sheriff,  but  he 
had  a  right  to  have  that  officer  go  forward  to  coerce  payment  and 
to  take  the  chances  that  in  doing  so  he  would  first  levy  on  the  prop- 
erty of  the  principal.  If  the  sheriff  had  been  permitted  to  go  on, 
and  had  levied  on  the  appellee's  property,  then  it  would  have  been 
his  duty  to  pay  the  debt  and  take  steps  to  secure  himself,  but  until 
payment  was  about  to  be  coerced  from  him,  he  might  wait  in  con- 
fidence that  the  lien  created  on  his  principal's  property  would  be 
preserved,  and  the  execution  levied  on  the  property,  or  that  he 
would  be  enabled  to  preserve  it  himself  by  paying  the  debt  when 
he  learned  the  execution  would  not  otherwise  be  levied. 

We  think  the  weight  of  the  evidence  shows  the  whole  debt  could 
have  been  made  out  of  Yates  if  the  execution  had  not  been  stayed ; 
and  whatever  uncertainty  there  may  be  on  this  subject  must  operate 
against  the  appellant,  whose  voluntary  act  has  made  the  inquiry 
necessary. 

It  does  not  matter  whether  Yates  is  now  solvent  or  insolvent. 
The  release  of  appellee  does  not  depend  upon  that  question.  The 
appellant  had  an  incipient  lien  which  has  been  lost  by  his  own  act, 
and  the  property  on  which  the  lien  existed  would  most  likely  have 
paid  the  debt. 

A  creditor  is  bound  to  act  toward  a  siu-ety  in  the  utmost  good 
faith.  The  surety's  obligation  is  purely  legal,  and  ought  not  and 
cannot  be  increased  to  the  slightest  degree  by  the  creditor  without 
releasing  the  surety. 

Judgment  affirmed. 

/.  5.  Barlow,  Jr.,  J.  Ritter,  for  appellant. 
Lewis  McQuozvn,  W.  H.  Botts,  for  appellee. 


B.  P.  Mitchell  v.  James  Woodlington,  et  al. 

Principal  and  Surety— Indemnity  of  Surety. 

Where  the  surety  takes  a  mortgage  to  indemnify  him  against  loss 
by  reason  of  being  surety  he  can  give  no  cause  of  action  against  his 
principal  before  pasring  the  debt  unless  his  indemnity  is  insnfflcient 
or  it  becomes  necessary  to  sue  to  prevent  mortgaged  property  from 
being  removed,  disposed  of,  or  injured. 


476  Kentucky  Opinions. 

APPEAL,  FROM  CALDWBLcL  CIRCUIT  COURT. 

June  15,  1875. 

Opinion  by  Judge  Lindsay: 

A  surety  may  maintain  an  action  against  his  principal  to  compel 
him  to  discharge  the  debt  or  liability  for  which  the  surety  is  bound, 
after  the  same  has  become  due,  and  in  certain  contingencies  may  sue 
to  obtain  indemnity  before  the  debt  or  liability  becomes  due.  But 
where,  as  in  this  case,  he  takes  a  mortgage  by  way  of  indemnity, 
at  the  time  the  liability  is  incurred,  he  can  have  no  cause  of  action 
against  his  principal,  unless  his  indemnity  is  insufficient,  or  unless 
it  is  necessary  to  sue  to  prevent  the  mortgaged  property  from 
being  removed,  disposed  of,  or  injured,  until  he  discharges  the  debt 
or  liability  for  which  he  is  bound. 

The  warrant  and  statement  in  this  case  shows  that  Woodlington 
held  an  indemnity.  There  is  no  suggestion  that  it  was  not  amply 
sufficient  to  secure  him.  It  also  shows  that  he  had  paid  nothing 
on  account  of  his  suretyship,  and  no  reason  whatever  was  assigned 
for  asking  the  interposition  of  a  court  of  equity.  When  his  attach- 
ment was  discharged,  he  was  left  in  court  without  even  an  apparent 
right  of  action  against  Mitchell. 

The  fact  that  he  paid  the  debt,  or  a  portion  of  the  debt,  after 
the  institution  of  the  action,  could  not  authorize  a  judgment  in  his 
favor  without  an  amendment  to  his  statement  setting  up  the  fact  of 
payment ;  and  this  amendment  would  not  have  been  made  after  the 
court  had  properly  determined  that  the  order  of  attachment  was 
wrongfully  sued  out.  Proof  of  this  subsequent  payment  was  inad- 
missible, as  the  case  stood  at  the  time  of  the  trial.  Judgment 
reversed,  and  cause  remanded  with  instructions  to  dismiss  appellees' 
warrant,  without  prejudice. 

George  IV,  Diirall,  for  appellant.    James  R,  Hulett,  for  appellees. 


V.  Hall  v,  Lebanon  &  Maysville  Turnpike  Co. 


Damages — Defective  Bridge— Negligence. 

Where  defendant's  bridge  was  out  of  repair  and  by  reason  thereof 
an  animal  fell  through  it  and  such  animal  in  falling  frightened  plain- 
tiff's horse  but  did  not  come  in  contact  with  it,  plaintiff  cannot  re- 
cover from'  the  owner  of  the  bridge  for  injury  received  to  himself  or 
horse,  as  the  injury  to  plaintiff  and  his  property  was  not  the  natural 
consequences  of  negligence  of  allowing  the  bridge  to  become  out  of 
repair. 


V.  Hall  v.  Lebanon  &  Maysville  Tpk.  Co.  477 

APPEAL  FROM  MARION  CIRCUIT  COURT. 

June  21.  1875. 

Opinion  by  Judge  Lindsay: 

The  destruction  of  the  wagon  which  appellant  was  driving,  and 
the^personal  injuries  he  sustained,  were  neither  the  natural  nor 
proximate  result  of  the  defect  in  appellee's  bridge. 

The  natural  and  proximate  result  of  that  defect  was  the  injury 
and  fright  of  the  animal  that  fell  through  the  bridge ;  and  possibly, 
if  that  animal,  in  endeavoring*  to  escape  from  danger,  or  whilst 
under  the  influence  of  the  fright  produced  by  the  defect  in  said 
bridge,  had  come  in  contact  with  the  wagon  or  with  appellant,  the 
injuries  thereby  inflicted  might  not  have  been  considered  too  remote 
to  constitute  a  cause  of  action.  But  here  the  injuries  were  the  re- 
sult of  the  fright  of  the  animal  that  was  being  driven  by  appellant, 
which  fright  he  says  was  superinduced  by  the  action  of  the  animal 
that  fell  through  the  bridge.  The  injuries  complained  of  may  be 
said  to  be  the  consequences  of  appellee's  neglect ;  but  they  certainly 
were  not  the  natural  consequences  thereof.  They  arose  directly  from 
the  extraneous  cause,  the  fright  and  conduct  of  the  animal  being 
driven,  and  not  from  the  alarm  and  action  of  the  one  falling  through 
the  bridge.  To  sustain  appellant's  cause  of  action,  it  would  be 
necessary  to  apply  the  rule  insisted  on  by  Patch,  in  his  case  against 
the  city  of  Covington.  Patch  7/.  City  of  Covington,  17  B.  Mon. 
722.  That  rule  is,  "That  whenever  injury  occurs,  directly  or  conse- 
quently, from  the  wilful  neglect  of  corporate  duty,  an  action  is 
clearly  maintainable  by  a  party  especially  injured,  irrespective  of  the 
events  or  parties  that  intervene."  Said  rule  was  condemned  by  this 
court  in  that  case,  and  we  see  no  reason  why  it  should  be  applied 
in  this  case. 

The  conclusion  thus  reached  avoids  the  necessity  of  inquiring  into 
the  action  of  the  circuit  court,  in  compelling  appellant  to  elect  as  to 
which  of  the  original  defendants  he  would  proceed  against. 

The  demurrer  was  properly  sustained  and  the  petition  properly 
dismissed. 

Judgment  affirmed. 

Russell  &  Averitt,  for  appellant,    Harrison  &  Knott,  for  appellee. 


478  Kentucky  Opinions. 

P.  T.  Allin,  et  al.,  v.  John  Robinson's  Ex'r. 

Homestead  Ezemptioii. 

Two  homestead  exemptions  cannot  be  claimed  In  the  same  real 
estate. 

Owner  of  Life  Estate. 

The  debtor  claiming  the  exemption  must  be  the  owner  of  the  prop- 
erty, including  the  dwelling  house,  not  a  Joint  owner  nor  an  owner 
in  common  with  others.  The  owner  of  a  life  estate  is  entitled  to  the 
exemption. 

APPEAL  FROM  MERCER  CIRCUIT  COURT. 

June  28,  1875. 


Opinion  by  Judge  Peters: 

The  act  to  exempt  homesteads  from  sale  for  debt,  approved  the 
loth  of  February,  i866,  provides  that,  in  addition  to  the  personal 
property  then  exempt  from  execution  on  all  debts  or  liabilities 
created  or  incurred  after  the  first  day  of  June,  one  thousand  eight 
hundred  sixty-six,  there  shall  be  exempt  from  sale  under 
execution,  attachment,  or  judgment  of  any  court,  except  to  foreclose 
a  mortgage  given  by  the  owner  of  a  homestead,  or  for  purchase 
money  due  therefor,  so  much  land,  the  dwelling  house  and  ap- 
purtenances owned  by  the  debtor,  as  shall  not  exceed  in  value 
one  thousand  dollars.    Myer's  Supp.,  pp.  714,  715. 

The  debtor  claiming  the  exemption  must  be  the  owner  of  the 
property,  including  the  dwelling  house  and  appurtenances,  not  a 
joint  owner,  nor  an  owner  in  common  with  others  of  a  farm.  Mrs. 
Mary  Robinson,  under  the  will  of  her  late  husband,  took  a  life 
estate  in  the  whole  tract,  and  is  "the  owner"  of  the  present  interest ; 
she  would  unquestionably  be  entitled  to  a  homestead  right  in  the 
dwelling  house  and  appurtenances,  as  she  is  occupying  and  claiming 
them  as  her  home.  She  has  not  alienated  her  right  therein  to  her 
son,  W.  C.  Robinson ;  he  occupies  under  her,  and  although  it  is,  or 
may  be  in  deference  to  the  testamentary  request  of  her  husband, 
still  Mrs.  Robinson  may  at  any  time  assert  and  enforce  her  right 
to  the  exclusive  possession  and  enjoyment  of  all  the  land,  houses, 
etc.,  during  her  life.  And  at  her  death  it  is  not  at  all  certain  that 
W.  C.  Robinson  would  be  the  owner  of  the  dwelling  house  and 
appurtenances.  He  certainly  is  not  "the  owner"  now.  And  unless 
he  is  the  present  owner,  in  the  legal  and  proper  sense  of  the  term, 


Aaron  Cox  v.  Commonwealth.  479 

he  cannot  be  entitled  to  the  homestead  exemption;  if  he  is,  then 
there  may  be  two  homestead  exemptions  on  the  same  real  estate  at 
the  same  time,  which  never  was  contemplated  nor  intended  by  the 
statute.  To  the  extent,  therefore,  that  William  C.  Robinson  is 
adjudged  to  be  entitled  to  a  homestead  in  the  one-quarter  of  the 
tract  mortgaged  by  him  to  Alexander  and  wife,  the  judgment  is 
reversed  and  the  cause  is  remanded  with  directions  to  dismiss  the 
claim  of  W.  C.  Robinson  for  a  homestead  in  the  real  estate  mort- 
gaged by  him  to  Alexander  and  wife  and  for  further  proceedings 
consistent  herewith. 

T.  C.  Bell,  for  appellants.    Kyle  &  Poston,  for  appellee. 


Aaron  Cox  v.  Commonwealth. 

Criminal  Law — ^Arrest  of  Judgment — Demurrer. 

In  a  criminal  charge  the  defect  in  an  Indictment  should  have  been 
taken  adyantage  of  by  demurrer. 

Arrest  of  Judgment. 

A  motion  for  an  arrest  of  judgment  in.  a  criminal  case  will  not  be 
sustained  when  a  public  offense  is  charged  in  the  indictment 


APPEAL,  FROM  GREEN  CJIRCUIT  COURT. 

June  29,  1875. 

Opinion  by  Judge  Pryor: 

The  defect  complained  of  in  the  indictment  should  have  been 
taken  advantage  of  by  demurrer.  The  judgment  will  not  be  ar- 
rested when  a  public  offense  is  charged.  To  steal  hogs  is  larceny, 
and  the  guilty  party  is  subjected  to  punishment.  If  the  offense 
is  not  stated  with  that  particularity  to  make  it  a  good  indictment 
the  accused  must  demur.  The  facts  as  stated,  if  true,  make  the 
party  guilty  of  a  criminal  offense;  and  it  is  only  in  a  case  where 
the  indictment  fails  to  charge  any  offense  that  the  motion  to  ar- 
rest the  judgment  can  be  sustained.  The  evidence  conduces  to 
show  that  the  hogs  strayed  from  the  possession  of  the  alleged  owner. 
The  court,  in  Instruction  No.  5,  assumes  that  the  hogs  were  stolen, 
and  the  abstract  proposition  of  law,  as  there  presented,  requires 
the  accused  to  explain  his  possession  or  his  guilt  is  established.  It 
also  directs  the  attention  of  the  jury  more  particularly  to  this  cir- 


480  Kentucky  Opinions. 

cumstance,  the  fact  of  possession,  than  any  other  fact  in  tlie  case. 
The  instruction  should  not  have  been  given,  but  the  fact  of  the 
possession  submitted  to  the  jury,  Hke  any  otlier  fact  in  the  case. 
Undue  importance  should  not  be  given  to  any  part  of  the  testimony 
in  a  criminal  prosecution. 

Judgment  reversed  and  cause  remanded  with  directions  to  award 
the  appellant  a  new  trial. 

John  W.  Lewis,  Winfrey  &  Winfrey,  James  W.  Gorin,  for  ap- 
pellant.     John  Rodman,  for  appellee. 


A.  G.  Talbott,  et  al.,  v.  Bank  of  Kentucky. 

Bills  and  Notes — ^Bank's  Negligence  in  Failing  to  Collect — Liability. 

Where  nothing  appears  showing  that  the  maker  of  a  note  or  the 
acceptor  of  a  bill  has  been  discharged  as  to  the  note  or  bill  or  that 
either  has  beccmie  insolvent,  a  petition  against  a  bank  for  negligence 
in  falling  to  take  steps  to  bind  the  endorsers  fails  to  state  a  cause  of 
action  against  the  bank,  because  it  is  not  shown  that  plaintiff  has 
suffered  any  loss. 

APPEAL  FROM  MERCER  CIRCUIT  COURT. 

September  2,  1875. 

Opinion  by  Judge  Cofer  : 

This  action  was  brought  by  the  appellee  against  the  appellants, 
Talbott  and  Jones,  June  19,  1862,  upon  a  note  executed  by  them  to 
the  appellee's  branch  bank  at  Danville,  August  24,  1861,  for  the 
sum  of  $8,627.26,  due  one  hundred  and  thirty  days  after  date. 

The  appellants  answered,  in  substance,  that  Talbott  was  liable  to 
the  bank  as  endorser  of  a  bill  of  exchange  received  by  him  from 
G.  B.  Moss  &  Co.,  in  payment  for  a  lot  of  mules  sold  to  them,  which 
bill  he  had  sold  and  endorsed  to  the  bank :  that  Moss  &  Co.  took  the 
mules  to  the  south,  and  sold  them  on  credit,  and  returning  about 
the  time  their  bill  matured,  they  offered  to  discount  to  the  bank 
notes  and  bills  received  by  them  for  the  price  of  the  mules,  in  order 
to  take  up  their  bill  held  by  the  bank,  but  this  offer  was  declined; 
that  it  was  then  agreed  that  Talbott  should  take  up  the  bill  by 
executing  to  the  bank  his  note  for  the  amount,  with  the  appellant, 
Jones,  as  surety,  and  should  receive  from  Moss  &  Co.  the  notes  and 
bills  they  held,  and  leave  them  with  the  bank  as  collateral  security 


A.  G.  Talbott,  et  al.,  v.  Bank  of  Kentucky.  481 

for  the  note ;  that  pursuant  to  that  agreement  the  note  sued  on  was 
executed  by  the  appellants,  and  the  notes  and  bills  held  by  Moss 
&  Co.  were  endorsed  by  them  to  Talbott,  and  by  him  to  the  bank; 
that  the  bank  undertook  to  collect  the  notes  and  bills,  and  to  apply 
so  much  of  the  proceeds  as  should  be  necessary  for  that  purpose,  to 
the  satisfaction  of  the  notes  sued  on,  and  pay  over  to  Talbott  the 
residue ;  that  all  the  parties  on  said  notes  and  bills  were  solvent,  and 
the  amounts  thereof  could  have  been  collected  by  reasonable  dili- 
gence, but  that  the  bank  had  been  guilty  of  gross  negligence  in 
regard  to  two  of  them,  to  wit,  a  note  for  $667.38,  and  a  bill  for 
$2,953.14,  both  payable  at  New  Orleans,  Louisiana,  February  i, 
1862,  and  both  of  which  were  by  law  placed  upon  the  footing  of 
foreign  bills  of  exchange,  and  required  proper  presentment  and 
demand  of  payment,  and  in  case  of  non-payment,  protest  and  notice 
to  the  payees  and  endorsers  in  order  to  hold  them  bound;  that  no 
steps  had  been  taken  by  the  bank  to  collect  either  the  note  or  bill,  or 
to  fix  the  liability  of  the  payees  and  endorsers  thereon. 

They  relied  upon  these  facts  as  a  counterclaim,  and  prayed 
judgment  against  the  bank  for  the  amount  of  the  note  and  bill. 
In  reply,  the  bank  denied  that  the  notes  and  bills,  or  any  of  them, 
were  received  as  collateral  security  for  the  payment  of  the  note 
sued  upon,  but  admitted  that  the  proceeds,  when  collected,  were 
to  go  to  the  credit  of  Talbott  cmi  the  note.  It  denied  all  negligence, 
and  claimed  that  the  notes  and  bills  were  received  to  be  collected 
solely  for  Talbott's  accommodation,  and  without  any  compensation 
whatever. 

No  matter  what  may  have  been  the  character  of  the  bank's  hold- 
ing, or  what  interest  it  had  in  the  notes  and  bills,  or  what  the  degree 
of  the  negligence  of  which  it  may  have  been  guilty,  before  it  can  be 
made  liable,  to  Talbott,  it  must  be  shown  that  he  had  sustained  some 
loss  in  consequence  of  the  negligence  complained  of,  and  unless  this 
has  been  made  to  appear,  the  judgment  dismissing  his  counter- 
claim must  be  affirmed. 

All  the  endorsers,  including  Moss  &  Co.,  have  been  released  from 
liability;  and  it  clearly  appears  that  if  all  had  been  held  liable  by 
due  presentment  and  protest  of  the  note  and  bill  and  notice  of  their 
dishonor,  the  great  part,  if  not  the  whole,  of  each  could  have  been 
collected.  But,  although  all  the  endorsers  may  be  released,  it  does 
not  follow  that  Talbott  has  sustained  any  loss,  or  that  he  is  entitled 
to  recover  against  the  bank,  even  conceding  that  it  has  been  guilty 
of  gross  negligence  in  failing  to  take  the  steps  necessary  to  hold 

31 


482  Kentucky  Opinions. 

the  endorsers  liable.  For  aught  that  appears  in  the  record,  the 
maker  of  the  note  and  the  acceptor  of  the  bill  may  be  forced  to 
pay  them. 

Neither  want  of  presentment,  protest  or  notice  will  discharge 
the  maker  of  a  note,  or  the  acceptor  of  a  bill.  They  each  stand 
in  the  same  relation  to  the  holder,  and  their  undertaking  to  pay  is 
absolute,  and  their  liability  does  not  depend  upon  presentment,  pro- 
test or  notice,  or  upon  all  of  them  together.  Rice  v.  Hogan  and 
Thompson,  8  Dana  134;  Bank  of  the  United  States  v.  Smith, 
II  Wheat.  (U.  S.)  171;  Wallace  v.  McConnell,  13  Peters  (U.  S.) 
136;  Foden  &  Slater  v.  Sharp,  4  Johnson  (N.  Y.)  183;  IVatkins  v, 
Cronch  &  Co.,  5  Leigh  (Va.)  567;  Bowie  v,  Duvall,  i  Gill  &  J. 
(Md.)  175. 

If  the  makers  of  the  note  or  the  acceptor  of  the  bill  liad  money 
at  the  place  of  payment  at  the  maturity  of  his  obligation  to  pay  it, 
he  might,  when  sued,  rely  upon  that  fact  to  exonerate  him  from 
damages  and  costs ;  or  if  the  note  or  bill  was  payable  at  a  bank,  and 
he  had  placed  funds  there  to  meet  it,  which  were  lost  by  the  failure 
of  the  bank,  or  had  in  any  other  way  sustained  damages  by  the 
failure  of  the  holder  to  demand  payment,  he  would  be  exonerated 
from  liability  to  the  extent  of  the  loss  or  injury  thereby  sustained. 

There  is  no  allegation  in  the  counterclaim  in  this  case  of  any 
fact  showing  that  the  maker  or  acceptor  has  been  discharged  as  to 
the  whole  or  any  part  of  either  the  note  or  bill,  or  that  either  has 
become  insolvent,  and  there  is,  therefore,  nothing  to  show  that 
Talbott  has  suffered  any  loss  for  which  he  was  entitled  to  recover. 

There  is  nothing  in  the  record  to  show  that  anything  has  been 
paid  beyond  the  sums  credited  in  the  judgment. 

Judgment  affirmed. 

Thompson  &  Thompson,  for  appellants. 
M,  J.  Durham,  for  appellee. 


K.  F.  Moore,  et  al.,  v.  Commonwealth. 

Officer — Acts  of  De  Facto  Officer  Binding. 

The  official  acta  of  a  de  facto  officer  are  valid  so  far  as  they  affect 
either  public  or  private  interests. 

Collateral  Attack. 

The  official  acts  of  an  officer  de  facto  cannot  be  questioned  in  a 
collateral  proceeding. 


Cmr  OF  Newport  v.  Henry  C.  Timberlake.  483 

APPEAL,  FROM  LINCOLN  CIRCUIT  COURT. 

September  3,  1875. 

Opinion  by  Judge  Pryor  : 

The  response  to  the  rule  issued  in  this  case  was  properly  held  to 
be  insufficient.  The  appellant  says  that  Lytle,  the  county  judge,  re- 
ceived at  the  election  a  majority  of  the  votes  cast  for  that  office; 
and  the  returns  showing  this  fact,  he  was  commissioned  by  the  gov- 
ernor. It  is  now  insisted  that  he  was  not  eligible,  for  the  reason  that 
he  was  acting  or  was  in  fact  the  postmaster  of  the  town  when  his 
election  took  place,  and  therefore  his  acts  as  county  judge  are  void. 
The  authorities  make  a  distinction  between  an  officer  de  facto  and 
a  mere  usurper,  and  when  he  holds  his  office  under  color  of  legal 
right  his  action  in  discharging  its  duties  must  be  held  valid  so  far 
as  it  affects  either  private  or  public  interests.  In  this  case  Lytle  had 
all  the  evidence,  so  far  as  the  public  was  concerned,  of  an  undoubted 
right  to  hold  the  office  of  county  judge,  and  the  effort  to  invalidate 
his  acts  or  declare  his  office  vacant  in  the  collateral  proceeding  can- 
not be  maintained. 

The  fact  that  the  warrant  upon  which  the  party  was  arrested  is 
defective,  cannot  defeat  the  recovery  on  the  bond,  if  the  party  was 
before  the  officer  charged  with  a  public  offense  of  such  a  character 
as  authorized  the  officer  to  take  a  bond  for  his  appearance.  It  is 
violative  of  the  conditions  of  such  a  bond  when  the  party  fails  to 
appear. 

Judgment  affirmed, 

W,  H.  Miller,  for  Appellants.    Jno.  Rodman,  for  appellee. 


City  of  Newport  v.  Henry  C.  Timberlake. 

Cities— ^Improvement  of  Streets. 

In  order  to  enforce  street  assessments  on  property-holders  for  tbe 
improvement  or  repair  of  public  ways  It  must  be  pleaded  and  proven 
not  only  that  the  city  had  the  power  to  make  such,  assessments  but 
that  In  making  them  it  has  substantially  followed  the  mode  pre- 
scribed by  the  law.  If  the  power  to  make  the  assessments  depends 
upon  the  existence  of  certain  facts,  it  must  be  averred  and  proven  that 
said  facts  existed. 

■ 

APPEAL  FROM  CAMPBELL  CHANCERY  COURT. 

September  4,  1875. 


4^4  Kentucky  Opinions. 

Opinion  by  Judge  Lindsay: 

The  appellant's  petition  is  fatally  defective.  In  order  to  enforce 
municipal  taxation  for  the  improvement  or  repair  of  public  ways,  it 
must  appear  not  only  that  the  municipal  authorities  had  general 
power  to  make  such  assessments,  but  it  must  also  appear  that  the 
mode  prescribed  for  making  such  impositions  has  been  substan- 
tially followed ;  and  if  the  power  to  make  the  assessment  depends 
upon  the  existence  of  designated  facts,  it  must  be  shown  that  those 
facts  existed. 

We  do  not  find  any  authority  in  appellant's  charter  for  charging 
propertyholders  with  the  cost  of  grading  streets  in  Newport,  except 
what  is  attempted  to  be  conferred  by  the  6th  section  of  the  act  of 
1864,  which  is  to  say  the  least  of  it,  of  doubtful  constitutionality. 

But  this  section,  like  all  the  other  acts  on  this  subject,  only  gives 
the  city  government  power  to  charge  propertyholders  with  the  cost 
of  any  part  of  the  improvement  of  streets  upon  petition  of  the  own- 
ers of  a  majority  of  the  front  feet  on  the  street  or  part  of  a  street 
to  be  improved,  or  when  the  making  of  such  improvement  is  voted 
for  by  two-thirds  of  the  members  of  the  city  council.  It  was,  there- 
fore, necessary  in  order  to  charge  the  appellee,  that  it  should  be  al- 
leged that  the  improvement  had  been  petitioned  for  by  the  owners 
of  the  greater  number  of  front  feet  abutting  on  it,  or  that  it  was 
ordered  by  a  vote  of  two-thirds  of  the  members  of  the  council. 

Unless  one  or  the  other  of  these  conditions  existed,  the  council 
had  no  power  to  charge  the  appellee  with  any  part  of  the  cost.  It 
appears  in  the  record  that  the  ordinance  directing  the  improvement 
was  voted  for  by  two-thirds  of  the  council ;  but  as  there  is  no  such 
allegation,  the  proof  is  unavailing.  The  allegation  that  the  council 
"in  pursuance  of  law,  provided  by  ordinance  duly  and  regularly 

passed  on  the day  of ,  1872,  for  the  improvement  of 

Harris  street,"  is  but  a  conclusion  of  law  drawn  by  the  pleader. 
Whether  the  ordinance  was  duly  and  regularly  passed  depends  upon 
the  question  whether  its  passage  was  petitioned  for,  or  if  not,  upon 
its  having  been  voted  for  by  two-thirds  of  the  council,  and  this  ap- 
plies as  well  to  the  act  of  1864  as  to  any  other  of  the  various  acts 
to  which  we  have  been  referred. 

Nor  is  the  necessity,  for  alleging  such  facts  as  show  that  the  coun- 
cil had  authority  to  charge  the  appellee,  dispensed  with  by  Sec.  3, 
of  the  Act  of  1863,  which  provides  that  in  suits  by  the  city  to  enforce 
tax  liens  under  that  act,  certified  copies  of  the  delinquent  bills  show- 


L.  T.  Moore,  et  al.,  v,  Wm.  Suerd.  485 

ing  the  taxes,  penalties  and  costs  claimed,  shall  be  deemed  prima 
facie  evidence  of  the  correctness  of  the  claims  asserted.  It  is  by  no 
means  dear  that  this  provision  relates  to  a  claim  against  the  owner 
of  real  estate  for  improving  adjacent  streets;  but  however  that  may 
be,  the  provision  in  question  was  not  intended  to,  and  does  not  dis- 
pense with  the  necessity  for  showing  in  such  suits,  by  appropriate 
allegations,  that  the  council  had  power  to  make  the  assessment 
sought  to  be  enforced.  In  cases  to  which  that  provision  applies,  the 
facts  showing  the  authority  of  the  council  to  make  the  assessment 
or  levy  sought  to  be  enforced,  and  showing  the  liability  of  the  de- 
fendant to  pay  it,  being  alleged,  certified  copies  of  the  tax  bills  are 
made  prima  facie  evidence  of  the  correctness  of  the  claims ;  but  they 
cannot  serve  the  double  purpose  of  allegation  and  proof  of  pleading 
and  evidence,  but  are,  like  any  other  species  of  evidence,  available 
only  in  support  of  appropriate  pleading. 

These  conclusions  render  it  unnecessary  to  discuss  other  ques- 
tions presented  in  the  argument  of  counsel. 

Judgment  affirmed, 

£.  W.  Hawkins,  IV,  Boden,  S.  Geister,  for  appellant. 
F.  M.  Webster,  for  appellee. 


L.  T.  MoORE,  ET  AL.,  V.  Wm.  SuERD. 

Appeal — ^Time  in  Which  Taken. 

Id,  ascertaining  the  time  in.  which  an  appeal  is  to  be  taken  to  the 
circuit  court,  the  day  on  which  the  judgment  was  rendered  and  the 
day  on  which  the  appeal  is  taken  are  both  to  be  counted. 

APPEAL  FROM  PIKE  CIRCUIT  COURT. 

September  4,  1875. 

Opinion  by  Judge  Peters: 

It  is  apparent  that  according  to  the  rule  for  the  computation  of 
time,  as  prescribed  in  Chiles  v.  Smith's  Heirs,  13  B.  Mon.  460,  and 
subsequent  cases,  the  appeal  in  this  case  was  not  taken  within  sixty 
days. 

The  judgment  was  rendered  by  the  Pike  quarterly  court  on  the 
24th  of  March,  1874,  and  the  appeal  was  taken  to  the  circuit  court 
for  Pike  county  on  the  23d  of  May,  1874.  By  including  the  24th  of 
March,  1874,  in  the  computation,  that  being  the  day  on  which  the 
judgment  was  rendered  in  the  quarterly  court,  and  the  23d  of  May, 


1 


486  Kentucky  Opinions. 

1874,  the  day  on  which  the  appeal  was  taken,  they  make  sixty-one 
days,  consequently  the  appeal  was  not  prosecuted  within  sixty  days, 
as  required  by  Sec  852  of  the  Civil  Code,  and  the  judgment  of  the 
court  below  must  therefore  be  aMrmed. 

Moore  &  Jones,  for  appellants.   O.  C.  Bowles,  for  appellee. 


Jas.  M.  Forsythe,  Jr.,  v.  Aaron  Alexander's  Ex'x. 

Will— Life  Estate— Distribution  to  Children. 

Where  a  widow  by  will  is  giyen  a  life  estate,  with  the  bxirden  ot 
supporting  and  educating  the  children  out  of  the  estate,  she  had  no 
power  to  glvei  the  whole  estate  to  one  of  the  children  or  to  expend  it 
to  her  own  use. 


APPEAL  FROM  MERCER  CIRCUIT  COURT. 

September  4,  1876. 

Opinion  by  Judge  Pryor  : 

It  is  manifest  from  the  provisions  of  the  will  of  A.  H.  Alexander 
that  no  greater  estate  passed  to  his  wife  than  an  estate  for  life,  with 
the  burden  imposed  upon  her  (out  of  the  estate)  of  supporting  and 
educating  his  children;  and  for  this  purpose  she  had  the  right  to 
use  and  dispose  of  it  according  to  a  sound  discretion.  She  had 
no  power  to  give  the  whole  estate  to  one  of  the  children,  or  to  ex- 
pend it,  by  appropriating  the  proceeds  to  her  own  use.  If  a  stranger 
had  been  empowered  to  use  and  dispose  of  the  property  for  the 
benefit  of  the  children  according  to  his  sound  discretion,  it  cannot 
be  pretended  that  he  could  have  given  to  one  child  a  double  portion 
or  excluded  others  from  any  interest  in  the  estate. 

The  discretion  given  was  as  to  the  manner  and  character  of  the 
maintenance  and  education  she  should  give  the  children  whilst  under 
her  control,  and  was  not  intended  to  vest  the  wife  with  the  absolute 
title  to  the  estate,  or  to  enable  her  to  prefer  one  child  to  another 
in  making  a  distribution  between  them  of  the  property.  She  was 
empowered  by  the  4th  clause  of  the  will  to  make  advancements  to 
the  children  during  the  continuance  of  her  life  estate,  or  so  long  as 
she  remained  a  widow ;  but  she  is  enjoined,  by  an  express  provision 
of  this  clause,  to  charge  the  property  so  advanced  at  a  fair  valua- 
tion. If  the  devisor  intended  to  give  the  property  to  the  wife,  or 
to  enable  her  to  dispose  of  it  as  between  the  children  in  any  manner 


A.  M.  Hume  v.  P.  Guilfoyle.  487 

she  saw  proper,  there  would  have  been  no  necessity  for  enforcing 
upon  the  wife  the  duty  of  charging  each  child  with  the  advance- 
ment made.  The  5th  clause  of  the  will  requires  an  equal  distribu- 
tion of  the  estate,  or  what  remains  unexhausted,  between  the  chil- 
dren, and  this  clause,  taken  in  connection  with  the  previous  clauses 
of  the  will,  means  equality  between  the  children  in  the  distribution 
of  the  whole  estate.  The  advancements  to  be  made  by  the  wife, 
and  with  which  the  children  should  be  charged,  are  such  as  are  made 
by  the  widow  over  and  above  their  education  and  support. 

The  discretion  with  reference  to  advancements  means  that  the 
wife  may  give  during  her  widowhood  to  such  of  the  children  as  she 
may  see  proper ;  but  the  property  so  given  the  child  is  to  be  charged, 
in  order  that  the  children  in  the  final  distribution  of  the  estate  may 
be  made  equal.  The  answer  of  the  appellants  in  this  case  allege 
the  death  or  insolvency  of  the  sureties  in  the  bond  of  the  executor. 
The  executrix  is  a  non-resident,  and  has  made  advances  to  fhe  other 
children  greatly  in  excess  of  the  amount  advanced  to  Mrs.  For- 
sythe,  and  the  note  in  controversy  is  all  that  is  left  of  this  large 
estate.  If  these  alleged  facts  are  true,  the  aj^ellants  are  entitled  to 
relief.  The  cause  should  have  been  left  to  the  commissioner  to  ascer- 
tain these  facts,  and  to  report  the  condition  of  the  estate,  in  order 
that  the  chancellor,  if  the  facts  exist  as  alleged,  may,  by  his  judg- 
ment, secure  the  money  to  those  entitled  after  the  termination  of 
the  life  estate. 

The  judgment  is  reversed  and  cause  remanded  for  further  pro- 
ceedings consistent  with  this  opinion. 

C.  A.  &  P.  W.  Hardin,  for  appellant. 
/.  B.  &  P.  B,  Thompson,  for  appellee. 


A.  M.  Hume  v.  P.  Guilfoyle. 

Judicial  Sale  of  Real  Estate— Judgment — ^Notice  of  Sale. 

Where  real  estate  is  ordered  sold  the  Judgment  should  direct  how 
And  where  the  sale  shall  be  made  and  the  length  of  time  it  shall  be 
advertised,  and  where  real  estate  ordered  sold  consists  of  seiMirate 
tracts  not  adjoining  they  should  be  ordered  sold  separately. 

APPEaAL.  FROM  CAMPBELL  CHANCBRT  COUKT. 

September  4,  1875. 
Opinion  by  Judge  Peters: 
In  November,  1872,  appellant  and  others  sold  to  Guilfoyle  two 


488  Kentucky  Opinions. 

lots  in  the  city  of  Newport  for  the  price  of  $1,300,  of  which  $550 
were  paid  in  hand,  and  for  the  unpaid  balance  Guilfoyle  executed 
three  notes  for  $250  each,  payable  respectively  in  eight,  sixteen  and 
twenty-four  months  from  date.  A  conveyance  of  the  lots  was  made 
on  the  same  day  the  notes  were  executed,  with  the  reservation  of  a 
lien  on  them  to  secure  the  payment  of  the  notes  for  the  unpaid  pur- 
chase price. 

The  note  which  first  matured  was  promptly  paid,  but  the  next  one 
was  not  paid,  and  appellant  brought  this  suit  to  coerce  its  payment 
by  an  enforcement  of  his  lien  on  the  lots.  In  the  petition  the  lots 
are  not  only  described  by  their  numbers  on  the  plan  of  the  city,  but 
the  deed  was  filed  as  a  part  of  the  petition,  describing  by  their  abut- 
tals. No  defense  was  made  to  the  suit,  and  a  judgment  \vas  ren- 
dered in  favor  of  appellant  against  appellee  for  $250,  with  interest 
at  the  rate  of  six  per  cent,  per  annum  from  the  21st  of  November, 
1872,  tin  paid,  and  the  costs  of  suit.  It  was  also  adjudged  that  ap- 
pellant had  a  lien  on  the  property  described  in  the  petition,  and  the 
master  was  ordered  to  sell  so  much  of  said  property  as  should  be 
necessary  to  satisfy  the  judgment,  publicly,  to  the  highest  bidder, 
on  a  credit  of  six  months,  at  the  court  house  door  in  Newport,  Ken- 
tucky, on  a  day  to  be  fixed  by  him,  taking  from  the  purchaser  bond 
with  good  security  for  the  purchase  money,  bearing  interest  from 
the  day  of  sale,  payable  to  himself.  The  time,  place,  and  terms  of 
sale  were  to  be  advertised  according  to  law,  etc. 

It  appears  from  the  report  of  the  master  that  the  lots  were  sold 
together,  although  they  did  not  adjoin,  and  brought  $309.80.  Ap- 
pellant still  having  a  note,  unsatisfied,  and  his  lien  being  exhausted, 
seeks  a  reversal  of  his  own  judgment,  and  Guilfoyle,  the  appellee, 
deeming  that  the  property  has  been  sold  at  a  great  sacrifice,  by  cross- 
appeal  asks  for  a  reversal  of  the  judgment. 

As  appellant  procured  the  judgment  that  was  rendered,  and  as 
the  judgment  itself  was  not  prejudicial  to  him,  but  the  injury,  if 
any  be  sustained,  resulted  from  the  manner  in  which  the  judgment 
was  executed,  and  he  failed  to  except  to  the  master's  report  of  sale, 
which  was  confirmed  without  objection,  this  court  cannot  afford  him 
any  relief,  and  the  judgment  on  the  original  appeal  must  be  af- 
firmed. 

But  the  condition  of  the  cross-appellant,  Guilfoyle,  is  different. 
Conscious  of  his  indebtedness,  he  made  no  defense;  but  he  did  not 
thereby  waive  any  error  in  the  judgment  and  proceedings  preju- 
dicial to  him.  Although  the  lots  are  specifically  described  in  the  pe- 


Savings  Institution  of  Harrodsburg  v,  G.  J.  Johnson.     489 

tition,  no  description  is  given  in  the  judgment;  but  for  their  identi- 
fication reference  is  mad<e  to  the  petition ;  and  the  report  of  the  sale 
made  by  the  master  identifies  the  lots  sold  by  their  numbers,  loca- 
tion, and  size.  While,  therefore,  this  court  would  not  feel  authorized 
to  reverse  the  judgment  for  the  reason  only  that  it  did  not  contain 
a  sufficient  description  of  the  property  sold  when  the  report  of  the 
master  showed  that  the  lots  specified  in  the  petition  and  title  pa- 
pers filed  were  sold  by  him,  still  we  deem  the  judgment  erroneous 
in  other  respects,  and  the  manner  of  its  execution  by  the  commis- 
sioner unauthorized  and  prejudicial  to  Guilfoyle. 

The  law  requires  that  reasonable  notice  of  the  time,  terms  and 
place  of  the  sale  of  property  shall  be  given,  but  it  does  not  prescribe 
the  mode  of  giving  such  notice;  hence,  in  cases  of  this  character, 
it  is  the  duty  of  the  court  rendering  the  judgment  to  direct  therein 
how  and  where  the  sale  shall  be  made,  and  the  length  of  time  it 
shall  be  advertised.  In  the  judgment  complained  of  these  important 
matters  are  left  to  the  discretion  of  the  commissioner. 

Moreover,  it  appears  from  his  report  that  although  the  lots  did 
not  adjoin,  they  were  sold  together.  There  was  no  offer  to  ascertain 
whether  one  of  the  lots  or  a  part  of  one  of  them  would  sell  for 
enough  to  pay  the  debt ;  and  it  is  apparent  from  the  diminution  of 
the  price  at  which  the  lots  sold  at  the  commissioner's  sale  compared 
with  the  price  Guilfoyle  contracted  to  pay  for  them,  that  the  man- 
ner of  advertising  the  sale,  or  the  manner  in  which  it  was  conducted, 
or  both,  must  have  caused  the  sacrifice. 

Wherefore  the  judgment  is  reiser sed  and  the  cause  is  remanded 
with  directions  to  set  aside  the  sale  upon  equitable  principles,  and 
for  further  proceedings  consistent  herewith. 

Whittaker  &  Ray,  for  appellant, 

T.  M.  Webster,  Stevenson  &  O'Hara,  for  appellee. 


Savings  Institution  of  Harrodsburg  v.  G.  J.  Johnson,  et  al. 

Compromise  of  Suit — ^Newly  Discovered  Evidence. 

A  compromise  between  litigants  will  not  be  set  aside,  where  not  in- 
duced by  fraud,  simply  because  one  of  the  parties  discovers  there- 
after that  he  could  have  proven  certain  facts  of  which  at  the  time  of 
the  compromise  he  had  no  knowledge. 


A90  Kentucky  Opinions. 

APPEAL.  FROM  MERCER  C?IRCUIT  COURT. 

September  4,  1875. 

Opinion  by  Judge  Lindsay: 

Prior  to  the  day  upon  which  the  ccwnproniise  conveyance  of  June 
22,  1 866,  was  accepted  by  the  savings  institution,  said  institution  had 
sued  Sims  and  Jesse  Deshazer  to  set  aside  the  deed  executed  to  them 
by  Gabbart,  and  to  subject  to  the  satisfaction  of  the  judgment  upon 
which  Sims  and  Deshazer  were  jointly  bound,  the  tract  of  two  hun- 
dred fifty  acres  of  land  covered  by  said  last-named  deed.  It  has  also 
sued  the  two  Deshazers,  and  was  seeking  to  set  aside  as  fraudulent 
the  deed  from  Jesse  to  William,  and  to  subject  to  the  payment  of  the 
judgment  for  which  Jesse  Deshazer,  Bottom  and  others  were  bound, 
the  two  hundred  fifty  acre  tract  of  land  covered  by  this  conveyance. 

In  each  action  the  averment  of  fraudulent  collusion  between  the 
vendors  and  vendees  in  the  two  conveyances  was  made,  and  upon 
these  averments  issues  had  been  made  up.  The  proposal  to  com- 
promise came  from  the  savings  institution,  and  Jesse  Deshazer  was 
the  last  of  the  parties  to  accede  to  it.  In  consideration  of  the  con- 
veyance to  the  savings  institution  of  the  two  hundred  fifty  acre 
tract  of  land,  and  the  payment  by  Deshazer  to  Sims  of  $6oo,  he  was 
released  from  all  liability  to  the  said  institution  on  account  of  either 
or  both  of  the  judgments  heretofore  mentioned. 

Appellant  seeks  to  avoid  this  compromise  so  far  as  Jesse  Deshazer 
is  concerned,  ist,  because  since  the  22d  of  June,  i866,  it  has  dis- 
covered evidence  that  the  conveyance  to  Wm.  Deshazer  was  fraudu- 
lent, and  2d,  because  it  has  discovered  that  the  conveyance  to  Sims 
and  Deshazer  was  intended  by  Gabbart  to  secure  them  from  dam- 
age on  account  of  their  joint  liability  in  one  of  the  judgments,  in- 
stead of  being  intended 'to  secure  Deshazer  on  account  of  both  judg- 
ments against  him,  as  recited  in  the  deed  of  compromise. 

As  to  the  first  ground  it  is  only  necessary  to  say  that  the  institu- 
tion had  reason  to  believe  that  the  conveyance  from  Jesse  to  Wm. 
Deshazer  was  fraudulent;  otherwise  it  would  not  have  instituted 
the  action  to  set  it  aside.  Pending  that  action,  the  parties  had  the 
legal  right  to  compromise  the  matters  in  controversy,  and  the  com- 
promise cannot  be  set  aside  because  facts  have  since  been  discov- 
ered, which,  if  known  to  the  savings  institution  at  the  time,  would 
have  probably  induced  it  to  persist  in  the  prosecution  of  its  suit. 
If  such  were  the  law,  compromises  in  cases  of  this  character  would 
be  without  mutuality. 


Jno.  McSwinney's  Adm'x  v,  Wm.  G.  McCay.  491 

The  party  charged  with  the  commission  of  the  fraud  would  be 
bound  in  any  event,  but  the  party  charging  fraud  would  have  the 
right  to  disregard  the  compromise  wherever  he  might  discover  the 
evidence  necessary  to  sustain  the  charge. 

This  is  not  a  case  in  which  a  party  was  induced  to  compromise 
by  reason  of  false  and  fraudulent  representations.  Here  the  party 
charged  with  the  fraud  denied  it,  and  the  plaintiff  not  being  satis- 
fied that  he  could  establish  the  charge,  proposed  a  compromise, 
which  was  accepted  and  acted  upon  without  change  or  modification. 
Such  a  compromise  will  not  be  disturbed  on  account  of  subsequent 
developments.  If  the  second  ground  be  material,  still  it  is  not  sup- 
ported by  sufficient  evidence.  Sims  states  indirectly  that  Gabbart 
conveyed  to  him  and  Deshazer  for  the  purpose  of  securing  them  on 
account  alone,  of  the  debt  upon  which  they  were  jointly  bound.  But 
the  deed  of  June  22,  1866,  to  which  he  was  a  party  (being  one  of  the 
grantors),  contradicts  this  statement.  Waiving  the  consideration  of 
other  grounds  of  defense,  we  are  satisfied  that  on  the  grounds  con- 
sidered, the  chancellor  properly  dismissed  appellant's  petition. 

Judgment  a/Rrmed. 

Thompson  and  Thompson,  for  appellant. 
C,  A.  &  P,  W.  Hardin,  for  appellees. 


Jno.  McSwinney's  Adm'x  v.  Wm.  G.  McCay. 

Appeals — Final  Orders— Limitations. 

Appeals  may  be  taken  to  the  court  of  appeals  within  three  years 
from  final  judgments  or  orders. 

Order  Granting  New  Trial. 

No  appeal  can  be  taken  from  an  order  granting  a)  new  trial. 

APPEAL  FROM  KENTON  CIRC?UIT  COURT. 

September  11,  1876. 

Opinion  by  Judge  Cofer  : 

If  it  be  conceded  that  the  order  taking  the  appellant's  petition  for 
confessed  is  a  final  order,  which  the  court  had  no  power  to  set  aside 
at  a  subsequent  term,  it  does  not  follow  that  the  order  setting  it 
aside  can  be  appealed  from  before  a  final  decision  of  the  cause. 

The  law  does  not  authorize  an  appeal  from  every  order  or  judg- 
ment, but  only  from  such  as  put  an  end  to  the  litigation,  or  at  least 


492  Kentucky  Opinions. 

to  some  distinct  portion  of  it  capable  of  being  separated  from  and 
decided  independently  of  the  residue.  Orders  made  in  a  cause  which 
are  merely  steps  in  its  progress  toward  a  final  decision,  although 
final  in  the  sense  that  they  are  beyond  the  control  of  the  court  after 
the  end  of  the  term,  can  only  be  reversed  upon  an  appeal  prosecuted 
from  a  final  judgment  in  the  case. 

All  the  errors  of  the  court  in  orders  made  in  the  progress  of  the 
cause  are  available,  if  prejudicial  to  the  party  appealing,  to  reverse 
the  judgment.  Neither  of  the  orders  appealed  from  put  an  end  to 
the  litigation  in  the  cause,  or  to  any  separate  and  distinct  part  of  it 
capable  of  separation  from  the  residue.  If  an  appeal  lies  from  either, 
then  it  would  follow  that  unless  prosecuted  within  three  years  from 
their  respective  dates  the  appeal  would  be  barred  by  the  statute 
limiting  appeals  to  three  years. 

Such  appeals  are  unnecessary,  because  the  circuit  court  not  hav- 
ing finally  disposed  of  the  case,  the  party  may  yet  obtain  in  that 
court  all  the  relief  claimed,  and  the  errors  now  sought  to  be  cor- 
rected would  become  unimportant. 

McCall  V,  Hitchcock,  7  Bush  615,  was  an  action  prosecuted,  un- 
der Sees.  579-581  of  the  code,  to  obtain  a  new  trial.  A  new  trial  was 
granted,  and  from  that  judgment  an  appeal  was  prosecuted  to  this 
court,  where  the  appellee  moved  to  dismiss  the  appeal  on  the 
ground  that  no  appeal  would  lie  from  a  judgment  granting  a  new 
trial.  In  disposing  of  that  motion,  the  court  said :  "It  is  conceded 
by  the  appellee's  counsel  that  no  appeal  will  lie,  under  Sec.  15,  of  the 
Civil  Code,  from  an  order  granting  or  refusing  a  new  trial,  upon  a 
motion  in  the  same  action,  made  in  the  usual  mode  under  Sees.  369, 
371  and  372  of  the  Code ;  but  it  is  contended  that  the  judgment  ap- 
pealed from  being  the  termination  of  a  new  and  distinct  action,  liti- 
gating the  right  of  the  appellee  to  enforce  his  judgment  in  the  pre- 
vious action,  which  right  was  divested  by  the  last  judgment,  the 
principles  cm  which  judgments  or  orders  made  upon  ordinary  mo- 
tions for  a  new  trial  have  been  held  not  to  be  final,  have  no  proper 
application  to  this  case." 

We  regard  this  distinction  as  correctly  taken.  The  judgment  is 
not  a  mere  interlocutory  order,  subject  to  be  set  aside  by  the  same 
court  at  a  subsequent  term,  nor  simply  a  ministerial  act;  nor  could 
it  be  reversed,  as  an  ordinary  motion  for  a  new  trial  may  be,  on  an 
appeal  from  the  judgment  in  the  original  action. 

Both  court  and  counsel  seem  to  have  regarded  it  as  clear  that 
no  appeal  will  lie  from  an  order  granting  a  new  trial,  when  made 


Wm.  McCarley's  Ex'r  v,  J.  O.  Perkins  and  Wife.       493 

upon  motion  in  the  action  in  the  ordinary  mode,  until  after  a  final 
determination  of  the  cause ;  and  we  still  adhere  to  that  opinion. 
Wherefore  the  appeal  is  dismissed. 

Fisk  &  Fisk,  for  appellant.  J.  G.  Carlisle,  for  appellee. 


Wm.  McCarley's  Ex'r  v.  J.  O.  Perkins  and  Wife. 

Mortgage  Waives  Right  to  Homestead  Exemption. 

Persons  who  execute  a  mortgage  on  their  real  estate  thereby  waive 
their  right  to  a  homestead  exemption  on  such  property. 

Appeals. 

When  an  appeal  is  granted,  by  the  court  rendering  a  Judgment  the 
record  must  be  filed  in  the  clerk's  office  of  the  court  of  appeals 
ninety  days  after  judgment  rendered*  subject  to  the  power  of  the  court 
to  extend  the  time  not  later  than  the  first  day  of  the  second  term 
after  Judgment,  but  an  appeal  may  be  granted  by  the  clerk  of  the 
court  of  appeals  at  any  time  within  three  years  from  the  date  of 
Judgment. 

APPEAL.  FROM  LOGAN  CIRCfUIT  COURT. 
September  14,  1875. 

Opinion  by  Judge  Cofer  : 

The  opinion  of  this  court  in  the  case  of  Rabbins,  et  al.,  v.  Cooken- 
doffer,  Mss.  Opinion  and  the  authority  therein  cited,  are  conclu- 
sive of  this  case.  The  mortgage  executed  by  Perkins  and  wife  pur- 
ports to  convey  their  whole  estate  in  the  lot,  and  was  a  waiver  of 
the  homestead  exemption.  The  judgment  exempting  a  homestead 
was,  therefore,  erroneous. 

The  appeal  in  this  case  was  granted  by  the  clerk  of  this  court, 
and  is  not  affected  by  the  fact  that  the  record  was  not  filed  on  or  be- 
fore the  first  day  of  the  second  term  after  the  judgment  was  ren- 
dered. When  an  appeal  is  granted  by  the  court  rendering  the  judg- 
ment, the  record  must  be  filed  in  the  clerk's  office  of  this  court  ninety 
days  after  the  judgment  was  rendered,  subject  to  the  power  of  the 
court  to  extend  the  time  for  filing  not  later  than  the  first  day  of 
the  second  term  after  the  rendition  of  the  judgment,  or  the  appeal 
will  be  dismissed  on  motion  of  the  appellee.  Sec.  879,  Civil  Code. 
But  when  an  appeal  has  been  g^ranted  by  the  court  below,  and  has 
been  dismissed,  or  the  record  has  not  been  filed  within  the  time 


494  Kentucky  Opinions. 

required  by  Sec.  879,  an  appeal  may  be  granted  by  the  deik  of  this 
court  at  any  time  within  three  years  from  the  date  of  the  judg- 
ment. Sees.  876  and  884,  Civil  Code.  This  latter  course  was  pur- 
sued in  this  case,  and  the  appeal  cannot  be  dismissed. 

The  judgment  setting  apart  to  the  appellees  a  homestead  is  re- 
versed, and  the  cause  is  remanded  with  directions  to  render  judg- 
ment subjecting  the  whole  property,  or  so  much  thereof  as  may  be 
necessary  for  that  purpose,  to  the  satisfaction  of  the  judgment. 

A.  G,  Rhea,  for  appellant.    Berry  &  Grubbs,  for  appellees. 


J.  G.  Arnold  v.  Peter  Smith. 

Judicial  Sale  of  Real  Estate. 

A  Judgment  for  the  sale  of  real  estate  will  be  reversed  where  it 
fails  to  direct  the  manner  of  Its  advertisement. 

City  Assessments^udgment. 

Where  the  cost  of  a  public  Improvement  is  assessed  by  the  city 
council  against  a  lot,  it  is  error  to  render  a  personal  Jnd^nent 
against  the  lot  owner. 

APPEAL  FROM  KENTON  CHANCERY  COURT. 

September  15,  1875. 

Opinion  by  Judge  Lindsay: 

It  was  error  to  fail  to  direct  in  the  judgment  the  manner  in  which 
the  sale  should  be  advertised. 

The  cost  of  the  work  was  assessed  by  the  city  council  against  the 
lot  owned  by  Arnold.  It  was,  therefore,  error  to  render  a  personal 
judgment  against  him. 

The  petition  avers  that  the  ordinance  directing  the  improvement 
to  be  made  "was  duly  published  in  a  newspaper  circulated  in  the 
city  of  Covington,  and  being  the  same  paper  in  which  the  ordinances 
passed  by  said  council  were  then  published.  We  cannot  say  that 
this  mode  of  printing  and  circulating  the  said  ordinance  is  not  cov- 
ered by  the  provisions  of  Sec.  6  of  the  act  of  March  2,  1850. 

Arnold  had  no  title  to,  or  interest  in  the  material  in  the  pave- 
ment.   His  counterclaim,  therefore,  was  properly  dismissed. 

For  the  two  errors  indicated  the  judgment  is  reversed,  and  the 
cause  remanded  for  further  proceedings  consistent  with  this 
opinion. 

Carlisle  &  Fotte,  for  appellant,  Stevenson  &  0*Hara,  for  appellee. 


Henry  Minnis  v.  Commonwealth.  495 

Henry  Minnis  v.  Commonwealth. 

Intoxicating  Liquor — Sale  of. 

A  defendant  charged  with  the  unlawful  sale  of  intoxicating  liquors 
is  not  permitted  to  prove  that  before  the  sale  was  made  it  was  the 
opinion  of  his  employer  that  such  a  sale  was  legal. 

Practice — Ebcceptions. 

Where  no  exceptions  were  taken  to  the  action  of  the  court  in  giving 
and  refusing  to  give  instructions,  the  record  cannot  be  so  amended 
by  agreement  of  attorneys  to  show  that  such  exceptions  were  taken. 

Bill  of  Elzceptions. 

An  original  bill  of  exceptions  cannot  be  made  up  after  the  expirar 

tion  of  the  term  unless  there  is  an  order  of  court  giving  time  for  that 
purpose.  The  court  loses  all  power  in  the  matter  unless  it  be  the 
power  to  correct  the  bill  so  as  to  make  it  conform  to  the  record. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

September  23,  1875. 

Opinion  by  Judge  Lindsay  : 

The  circuit  court  did  not  err  in  refusing  to  admit  evidence  as  to 
opinions  expressed  to  the  defendant  or  his  employer,  to  the  effect 
that  he  might  retail  liquors  without  subjecting  himself  to  the  penal- 
ties denounced  by  law  against  those  engaging  in  such  business,  with- 
out first  obtaining  authority  so  to  do. 

The  record  as  originally  made  up,  does  not  show  that  the  action 
of  the  court  in  giving  and  refusing  instructions  was  excepted  to  at 
the  time.  After  the  case  had  been  brought  to  this  court,  and  argued 
by  counsel,  the  record  in  the  circuit  court  was,  by  agreement,  so 
corrected  as  to  show  that  exceptions  were  regularly  taken ;  and  this 
amended  record  has  been  filed  in  this  court,  subject  to  objections 
made  at  the  time  by  the  attorney-general. 

It  is  not  pretended  that  there  is  or  was  anything  in  the  record 
upon  which  this  correction  could  be  founded.  It  was  evidently  made 
frctfn  the  recollection  of  the  attorneys  and  the  judge.  An  original 
bill  of  exceptions  cannot  be  made  up  after  the  expiration  of  the  term, 
unless  there  is  an  order  of  court  giving  time  for  that  purpose. 
Neither  can  the  bill  be  amended  after  the  expiration  of  the  term. 
The  court  loses  all  power  in  the  matter,  unless  it  be  the  power  to 
correct  the  bill  so  as  to  make  it  conform  to  the  record ;  and  we  do 
not  decide  that  it  has  that  power.  Nor  do  we  think  the  consent  of 
the  parties  authorized  the  correction  in  this  case. 


496  Kentucky  Opinions. 

After  the  appeal  has  been  prosecuted  to  this  court,  the  attorney- 
general  became,  by  operation  of  law,  the  representative  of  the  com- 
monwealth, and  we  are  of  opinion,  that  the  attorney  for  the  com- 
monwealth, in  the  circuit  court,  could  not  bind  him  by  an  agree- 
ment to  change  the  record  upon  which  the  appeal  was  prosecuted. 

We  must,  therefore,  decide  that  the  amended  transcript  filed  June 
19,  1875,  is  not  properly  a  part  of  the  record. 

This  conclusion  necessitates  an  afhrmance  of  the  judgment. 

H.  M.  Buford,  Breckenridge  &  Morton,  for  appellant. 
John  Rodman,  for  appellee. 


J.  B.  Martin  v.  Commonwealth. 

Criminal  Law — ^Indictment. 

After  verdict  and  judgment  of  conviction  In  a  criminal  case  the 
indictment  should  be  construed  literally  to  sustain  the  finding  of  the 
jury. 

Bill  of  Exceptions. 

It  is  necessary  not  only  that  the  judge  sign  the  bill  of  exceptions, 
but  that  it  shall  be  filed  with  the  pleadings  as  a  part  of  the  record. 
Unless  it  is  so  filed  it  does  not  become  a  part  of  the  record. 

APPEAL  FROM  ADAIR  CIRCUIT  COURT. 

September  25,  1875. 

Opinion  by  Judge  Lindsay  : 

We  cannot  say  that  the  indictment  in  this  case  does  not  state  facts 
constituting  a  public  offense.  After  trial,  verdict  and  judgment,  the 
indictment  is  to  be  construed  liberally  to  sustain  the  finding  of  the 
jury.  In  this  case  it  is  averred  by  the  commonwealth,  that  the  de- 
fendant represented  to  Winfrey,  Bradshaw  and  others,  certain  things 
as  existing  facts,  and  that  by  and  through  such  representations  he 
obtained  in  money  one  hundred  dollars.  It  is  further  averred  that 
he  intended  by  such  representations  to  perpetuate  a  fraud  upon  said 
parties,  and  charged  that  the  statements  made  were  untrue,  and  so 
known  to  be  by  defendant  at  the  time  they  were  made.  We  may 
also  infer  from  the  indictment  that  the  Bank  of  Columbia  had  been 
robbed,  and  that  the  parties  defrauded  were  interested,  either  as 
stockholders  in  said  bank,  or  as  citizens  desirous  of  suppressing 
crime  in  having  the  robbers  brought  to  justice. 


Isaac  Gibson  v,  Martha  Marples.  497 

The  action  of  the  court  below  in  overruling  the  motion  in  arrest 
of  judgment  in  this  case  is  not  a  ground  for  reversal.  We  cannot 
inquire  into  the  remaining  questions  raised  in  the  argument;  there 
is  no  bill  of  exceptions  in  the  record. 

There  is  a  paper  copied  which  seems  upon  its  face  to  have  been 
intended  for  a  bill  of  exceptions;  but  there  is  no  order  of  court 
directing  it  to  be  filed.  It  is  necessary  not  only  that  the  judge  shall 
sign  the  bill  of  exceptions,  but  that  it  shall  be  filed  with  the  plead- 
ings as  part  of  the  record.  Sec.  367,  Civil  Code  of  Practice.  Unless 
it  be  so  filed,  it  does  not  become  part  of  the  record,  and  the  clerk, 
in  making  out  a  transcript  for  this  court,  has  no  legal  authority  to 
copy  it.  As  the  paper  in  question  was  improperly  copied  into  the 
record  before  us,  we  cannot  take  notice  of  its  contents. 

The  judgment  appealed  from  must  be  affirmed, 

Winfrey  &  Winfrey  for  appellant.    T.  E,  Moss,  for  appellee. 


Isaac  Gibson  v.  Martha  Marples. 

Attachment — Ownership  of  Property. 

Where  goods  are  attached  by  creditorsi  of  a  person,  the  wife  of  the 
debtor  may  defeat  the  attachment  by  showing  that  the  property  at- 
tached Is  hers. 

Parties  to  an  Appeal. 

When  property  attached  is  shown  to  belong  to  another  and  the  at- 
tachment is  discharged  for  that  reason,  the  attaching  creditor  by 
appealing  from  such  judgnnent  not  making  the  debtor  a  party  to  the 
appeal,  the  court  of  appeals  has  no  Jurisdiction  to  inquire  into  the 
action  of  the  court  in  discharging  the  order  of  attachm^it 

APPEAL  FROM  CASET  CIRCUIT  COURT. 

October  1,  1875. 

Opinion  by  Judge  Lindsay  : 

Gibson  sued  Elmore  Marples,  and  took  out  an  order  of  attachment 
against  him,  and  gamisheed  certain  of  his  alleged  debtors.  Martha 
C.  Marples,  his  wife,  interpleaded,  and  claimed  that  she  was  the 
owner  of  the  choses  in  action,  which  had  been  thus  attached.  Pend- 
ing the  litigation  she  was  divorced  from  her  husband. 

Upon  hearing,  the  orders  of  attachment  were  discharged,  and 
Mrs.  Marples  held  to  be  the  owner  of  the  attached  notes.   Gibson 

32 


498  Kentucky  Opinions. 

appeals  from  this  judgment,  but  prosecutes  his  appeal  against  Mrs. 
Marples  alone. 

Elmore  Marples,  the  debtor,  not  being  an  appellee,  we  cannot 
inquire  into  the  propriety  of  the  action  of  the  court  below  in  dis- 
charging the  order  of  attachment.  To  this  extent,  therefore,  the 
judgment  cannot  be  reversed.  Gibson  has  no  claim  to  the  debts 
adjudged  to  Mrs.  Marples,  except  such  as  grew  out  of  his  attach- 
ments. This  claim  was  terminated  by  the  order  discharging  them, 
and  as  we  cannot  revive  it,  we  can  afford  him  no  relief  on  this  appeal. 

Judgment  affirmed. 

Hill  &  Alcorn,  for  appellant.    James  E,  Hays,  for  appellee. 


John  T.  White  z\  G.  Hayden's  Adm'r. 

Judgment — Fraud. 

Fraud  to  vitiate  a  Judgment  must  relate  to  the  manner  in  which 
it  was  obtained  and  not  to  the  foundation  upon  which  it  rests. 


APPEAL.  FROM  WAYNE  CIRCUIT  COURT. 

October  6,  1875. 

Opinion  by  Judge  Cofer: 

The  agreement  alleged  to  have  been  made  in  regard  to  a  credit 
for  commissions  was  entered  into,  if  at  all,  at  the  time  the  note, 
which  was  the  basis  of  the  judgment,  was  given,  and  any  defense 
the  appellant  had  on  account  of  that  agreement,  arose  before  the 
judgment  sought  to  be  enjoined  was  rendered.  The  case,  therefore, 
falls  directly  within  the  provisions  of  Sec.  14,  Civil  Code. 

The  all^ation  that  the  judgtnent  was  obtained  by  fraud  seems 
to  be  based  alone  on  the  alleged  fact  that  the  appellee  sued  and  took 
a  judgment  for  more  than  was  due  him.  This  is  no  ground  for  va- 
cating a  judgment.  It  is  not  enough  that  the  claim  sued  upon  was 
false.  Fraud  to  vitiate  a  judgment  must  relate  to  the  manner  in 
which  it  was  obtained,  and  not  to  the  foundation  upon  which  it  rests. 

Judgment  affirmed. 

A.  /.  James,  for  appellant. 


Samuel  Kester  v.  W.  C.  Whitaker.  499 

Samuel  Kester  v,  W.  C.  Whitaker. 

Limitationfl— Pleading. 

In  order  for  a  plea  of  limitations  to  be  good  the  pleader  must  aver 
facts  showing  that  the  cause  of  action  sued  upon  accrued  more  than 
the  statutory  period  before  the  commencement  of  the  action. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT. 

October  7,  1875. 

Opinion  by  Judge  Cofer  : 

I 

Where  there  is  no  danger  of  loss  to  a  party  having  a  demand 
against  another  who  has  recovered  judgment  against  him  and  is 
insolvent,  the  chancellor  will  take  jurisdiction  to  decree  a  set-oflF; 
but  as  insolvency  is  the  foundation  of  equitable  jurisdiction  in  such 
cases,  it  must  be  proved  like  any  other  material  fact. 

The  appellant  had  a  judgment  at  law  against  the  appellee,  and 
the  only  jurisdiction  a  court  of  equity  had  to  molest  him  in  the  use 
of  legal  process  for  its  enforcement,  arose  out  of  the  appellant's  al- 
leged insolvency ;  and  as  this  was  denied  and  not  proved,  no  set-off 
should  have  been  adjudged;  but  as  the  appellee  sought  judgment 
against  the  appellant  for  the  debt  claimed,  judgment  should  have 
been  rendered,  if  a  case  was  made  out  showing  that  he  was  entitled 
to  recover. 

These  defenses  were  attempted  to  so  much  of  the  action  as  sought 
a  personal  judgment,  viz. :  i.  A  denial  of  the  items  of  the  account ; 
2.  Limitations;  3.  Former  adjudication.  As  to  the  first,  we  think 
the  evidence  warranted  the  court  in  finding,  as  a  fact,  that  a  portion 
of  the  alleged  indebtedness  had  once  existed.  With  the  reference 
to  the  second  the  statute  of  limitation  was  not  availably  pleaded. 
The  language  is,  "that  the  firm  of  Brown  &  Whitaker  was  dissolved 
in  the  year  i860  or  in  1861,  and  any  claim  they  have  or  may  have 
had  against  this  defendant  is  barred  by  the  statute  of  limitation;" 
and  he  pleads  and  relies  upon  said  statute  as  a  bar  to  the  claim  set 
up  in  plaintiff's  petition.  In  order  to  make  a  good  plea  of  the  stat- 
ute of  limitations,  as  in  every  other  character  of  defense,  the  facts 
necessary  to  constitute  it  must  be  alleged.  It  should  always  be  al- 
leged that  the  cause  of  action,  to  which  the  plea  is  intended  to  be 
an  answer,  accrued  more  than  the  statutory  period  before  the  com- 
mencement of  the  action,  and  the  period  relied  upon  should  be 
stated.  This  was  not  done  in  form  or  in  substance.  It  may  be  true 
that  the  firm  was  dissolved  more  than  five  years  before  the  institu- 


500  Kentucky  Opinions. 

tion  of  the  action;  but  it  does  not  follow  that  the  cause  of  action 
accrued  then  or  previously.  The  services  may  have  been  in  part 
rendered  after  the  dissolution,  or  the  debt  may  not  then  have  been 
due.   Upon  the  most  liberal  construction  the  plea  is  bad. 

In  answer  to  the  third,  the  record  of  the  former  action  of  Kester 
V.  Whitaker  is  not  made  a  part  of  this  record,  and  we  cannot  say 
that  the  matters  sued  for  in  this  case  were  adjudicated  in  that  ac- 
tion. But  as  that  record  is  here,  we  have  looked  into  it,  and  find 
that  the  only  item  set  up  in  the  answer  in  that  case  was  for  services 
in  collecting  the  money  there  sued  for,  and  that  item  was  rejected 
by  the  court  in  this  case. 

We  think  the  court  should  have  rendered  judgtnent  for  appellee 
for  $135,  with  interest  from  the  date  at  which  it  was  applied  as  a 
credit  on  the  judgment,  but  erred  in  adjudging  a  set-off. 

The  judgment  is  reversed,  and  the  cause  remanded  with  directions 
to  render  a  personal  judgment  against  appellant  as  indicated,  and 
to  dissolve  the  injunction  in  toto. 

/.  C.  Beckham,  for  appellant.    J.  C  Walker,  for  appellee. 


L.  F.  Saunders,  et  al.,  v.  R.  H.  Gale,  et  al. 

Change  of  Venue — Objections  and  Exceptions. 

Where  no  exceptions  were  taken  to  an  order  of  the  court  changing 
the  venue  of  a  cause  and  no  objections  made  to  the  jurisdiction  of 
the  court  to  whom  it  was  sent,  no  question  can  be  raised  in  the  court 
of  appeals. 

APPEAL  FROM  OLDHAM  CIRCUIT  COURT. 

October  9,  1875. 

Opinion  by  Judge  Cofer  : 

There  was  no  objection  made  or  exception  taken  to  the  order 
changing  the  venue  to  the  Oldham  circuit  court;  nor  was  there 
any  motion  in  that  court  to  remand  the  case  or  objection  taken  to 
its  jurisdiction.  The  Owen  circuit  court  had  jurisdiction  to  make 
the  order,  and  no  exception  having  been  taken  at  the  time,  any  er- 
ror the  court  may  have  committed  in  making  the  order  before  mak- 
ing further  efforts  to  obtain  a  special  judge  in  that  court,  was 
waived.  The  Owen  court  having  had  jurisdiction  to  make  the  order 
of  removal,  the  Oldham  circuit  court  had  jurisdiction  to  render  a 
judgment. 


James  F.  Haydon,  et  al.,  v,  Bamberger,  Bloom,  et  al.     501 

Sec.  16,  of  Chap.  13,  of  the  Revised  Statutes,  which  provided 
that  there  should  be  but  one  order  of  removal  of  the  same  cause, 
at  the  instance  of  the  same  party,  had  no  application  to  this  case. 
The  order  of  removal  was  not  made  at  the  instance  of  either  party. 

The  court  allowed  the  master  commissioner  one  hundred  dollars 
for  making  sale  of  the  land  adjudged  to  be  sold.  The  land  was  sold 
for  $5,497.25,  and  bonds  therefor  were  taken  payable  to  the  com- 
missioner. 

The  bonds  being  payable  to  the  commissioner,  it  will  be  his  duty 
to  execute  bonds,  unless  he  has  already  given  bond  as  receiver,  and 
to  collect  and  disburse  the  money.  The  allowance  is  not  unreason- 
able, and  does  not  exceed  the  amount  which  the  statute  authorized 
the  court  to  make.  The  record  itself  affords  sufficient  evidence  to 
show  that  the  allowance  was  not  unreasonable. 

Perceiving  no  error  to  the  prejudice  of  the  appellants,  the  judg- 
ment is  affirmed, 

L,  F.  Saunders,  for  appellants.    /.  D,  Lillard,  for  appellees. 


James  F.  Haydon,  et  al.,  r.  Bamberger,  Bloom,  et  al. 

Recording  Deeda — ^Taxes  Paid  Thereon. 

A  deed  is  invalid  as  against  creditors  unless  acknowledged  or 
proved  according  to  law  and  lodged  for  record  and  recorded  in  the 
clerk's  office.  No  deed  shall  be  held  to  be  legally  lodged  for  record 
until  the  tax  is  paid  thereon. 

Pees  Paid. 

Until  the  fees  are  paid  for  recording  a  deed  it  is  not  legally  lodged 
for  record,  even  though  left  with  the  clerk,  but  where  the  clerk  actu- 
ally records  a  deed  upon  which  the  fees  have  not  been  paid  it  is  valid, 
as  against  purchasers  and  creditors  from  the  date  it  was  recorded. 

APPBAX,  FROM  FRANKLIN  CTIRCUIT  COURT. 

October  9.  1875. 

Opinion  by  Judge  Peters  : 

Sec.  31,  Chap.  24,  General  Statutes,  p.  261,  provides  that  no  deed 
shall  be  held  to  be  legally  lodged  for  record  until  the  tax  be  paid 
thereon. 

Sec.  9  of  the  same  chapter  provides  that  "all  deeds  and  mort- 
gages and  other  instruments  of  writing,  which  are  required  by  law 


502  Kentucky  Opinions. 

to  be  recorded,  to  be  effectual  against  purchasers  without  notice, 
or  creditors,  shall  be  recorded  in  the  clerk's  office  of  the  court  of 
the  county  in  which  the  property  conveyed,  or  the  greater  part 
thereof,  shall  be/' 

Sec.  ID.  "No  deed  of  trust  or  mortgage,  conveying  a  legal  or 
equitable  title  to  real  or  personal  estate,  shall  be  valid  against  a  pur- 
chaser for  a  valuable  consideration  without  notice  thereof,  or  against 
creditors  until  such  deed  shall  be  acknowledged  or  proved  according 
to  law,  and  lodged  for  record/' 

Sec.  II.  "All  bona  fide  deeds  of  trust  or  mortgage  shall  take  ef- 
fect in  the  order  that  the  same  shall  be  legally  acknowledged  or 
proved,  or  lodged  for  record." 

The  deed  of  mortgage,  which  is  the  subject  of  litigation  in  this 
case,  was  executed  and  acknowledged  by  the  grantor  on  the  21st  of 
July,  1873,  and  lodged  with  the  clerk  on  that  day  for  record.  It 
was  actually  recorded  on  the  30th  of  July,  1873,  and  the  tax  was  not 
paid  until  th^  21st  of  April,  1874.  By  the  provision  of  the  statute 
cited,  it  was  not  legally  lodged  for  record  until  the  tax  was  paid; 
that  is,  it  could  not  be  valid  against  purchasers  for  a  valuable  con- 
sideration without  notice,  or  creditors,  until  it  was  acknowledged 
or  proved  according  to  law,  and  lodged  for  record,  that  is,  legally 
lodged ;  and  that  could  not  be  done  until  the  tax  was  paid.  The  ac- 
knowledgment and  lodgment  of  the  mortgage  with  the  proper  clerk 
did  not  operate  as  constructive  notice  of  its  existence  to  purchasers 
and  creditors  until  the  tax  was  paid ;  but  upon  the  payment  of  the 
tax  it  would  be  effectual  from  the  date  of  such  payment,  although 
the  instrument  was  only  lodged  with  the  proper  officer  for  record, 
and  not  actually  recorded. 

If,  however,  the  instrument  is  acknowledged,  and  left  with  the 
clerk  for  record,  and  he  actually  records  it,  although  he  has  not 
received  the  tax,  he  thereby  becomes  responsible  himself  for  the 
tax,  and  the  instrument  would  have  the  same  effect  from  the  date  of 
the  recording  of  it  as  it  would  have  had  if  the  tax  had  been  paid  on 
that  day.  There  is  a  difference  between  the  lodgment  of  a  deed  of 
trust  or  mortgage  for  record,  and  the  actual  record  of  such  instru- 
ments. In  the  one  case,  purchasers  and  creditors  are  not  held  to 
notice  until  the  tax  is  paid ;  in  the  other  case,  they  are  charged  with 
notice  from  the  day  the  instrument  is  recorded.  In  this  case,  as  the 
tax  was  not  paid  until  after  the  mortgage  was  recorded,  and  the  suit 
was  brought  within  six  months  after  its  registration,  it  was  not 
barred. 


Peter  Cochran,  et  al.,  v.  J.  H.  Hays,  et  al.  503 

It  appears  that  Penn  and  T.  F.  Haydon  were  bound  as  tlie  sure- 
ties of  C.  B.  Haydon  for  large  sums  of  money ;  and  to  secure  their 
original  loss  on  account  of  said  suretyship,  said  C.  B.  Haydon  exe- 
cuted a  mortgage  to  them  on  a  house  and  lot  at  Peak's  Mill,  and 
his  half  of  a  growing  crop  of  corn  and  tobacco;  and  this  suit  was 
brought  by  the  creditors  of  C.  B.  Haydon  and  Brother,  a  late  firm 
trading  under  that  name  for  a  distribution  of  the  mortgaged  prop- 
erty, under  Art.  2,  Chap.  34,  General  Statutes. 

There  can  be  no  doubt  that  the  debts  on  which  T.  F.  Haydon  and 
Penn  were  bound,  and  for  which  C.  B.  Haydon  attempted  to  se- 
cure them  by  said  mortgage,  were  pre-existing,  and  the  deed  was 
made  in  contemplation  of  insolvency  and  to  prefer  the  mortgagees 
over  the  creditors. 

The  refusal  of  the  court  below  to  permit  James  F.  Haydon  and 
C.  B.  Haydon  to  file  amended  answers,  does  not  seem  to  have  been 
excepted  to ;  and  the  error,  if  any  existed,  was  waived. 

The  homestead  right  of  the  mortgagor  and  family  is  protected  by 
the  judgment  of  the  court.  Nor  do  we  perceive  that  appellants  are 
prejudiced  by  the  directions  given  by  the  court  below  to  the  master. 

As,  therefore,  no  error  is  perceived  prejudicial  to  appellants,  the 
judgment  is  affirmed. 

Herd  &  Trabue,  for  appellants,  /.  W,  Rodman,  for  appellees. 


Peter  Cochran,  et  al.,  v.  J.  H.  Hays,  et  al. 

Local  Option  Election — Contest  of. 

An  election  held  in  a  given  district  to  determine  whether  intoxi- 
cating liquors  shall  be  sold  therein  cannot  be  contested  under  the 
provisions  of  the  general  election  law. 

Opening  the  Polls. 

The  Constitution  provides  that  elections  shall  be  held  between  6 
o'clock  a.  m.  and  7  o'clock  p.  m.,  but  it  does  not  foUow  th^t  the  result 
is  unlawful  where  the  polls  are  not  opened  until  after  six  o'clock. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

October  11,  1875. 

Opinion  by  Judge  Peters  : 

One  of  the  grounds  specified  in  the  notice  to  contest  the  election 
held  in  the  Pine  Tavern  district  in  Bullitt  county,  to  determine 


504  Kentucky  Opinions. 

whether  the  sale  of  intoxicating  liquors  should  be  prohibited  in  said 
district,  is  that  the  judges  at  said  election  failed  to  open  the  polls  at 
six  o'clock  A.  M.  The  other  is  that  there  were  fraudulent  votes  cast 
against  said  proposition.  We  are  not  aware  of  any  law  authorizing 
the  contest  of  an  election  of  this  character,  if,  indeed,  a  mere  test  of 
the  opinions  or  wishes  of  the  qualified  voters  of  a  district  on  any 
given  question  can  be  called  an  election  according  to  the  statutory 
definition  of  the  word. 

But  besides  that  objection,  appellants  have  failed  to  show  any  just 
grounds  of  complaint.  They  assume,  as  a  matter  of  law,  that  the 
officers  of  an  election  are  required  to  open  the  polls  by  six  o'clock 
A.  M.,  when  the  constitutional  provision  on  the  subject  is  that  all 
elections  by  the  people  shall  be  held  between  the  hours  of  six 
o'clock  in  the  morning  and  seven  o'clock  in  the  evening.  Sec.  16, 
Art.  8,  Const,  of  Kentucky.  The  election  complained  of  was  com- 
menced between  six  and  seven  o'clock  in  the  morning,  certainly, 
according  to  the  evidence,  not  later  than  seven  o'clock  in  the  morn- 
ing, and  was  continued  until  seven  o'clock  in  the  evening,  which 
was  a  compliance  with  the  law. 

There  is  no  evidence  that  there  were  fraudulent  votes  cast  for  or 
against  the  proposition. 

The  judgment  must  be  affirmed, 

Strauss  &  Megler,  for  appellants.     R.  H.  Field,  for  appellees. 


W.  G.  Mills,  et  al.,  v.  W.  H.  Chelf. 

Sale  of  Real  Estate— Rescission  of  Contract — Married  Women. 

Where  real  estate  Is  sold  on  a  title  bond  to  the  husband  and  by  his 
direction  the  bond  was  payable  to  the  wife,  the  wife  cannot  by  plead- 
ing that  she  was  a  married  woman  at  the  time  procure  a  rescission, 
nor  can  the  husband  and  others  who  signed  the  purchase  money 
escape  liability  on  account  of  said  married  woman's  connection  with 
the  sale. 

Judgment  on  Note  Not  Due. 

Where  a  note  at  the  time  the  amended  petition  was  filed  was  not 
due  and  no  supplemental  petition  was  filed,  showing  that  such  note 
became  due  before  Judgment,  no  Judgment  can  legally  be  rendered  on 
the  same. 


W.  G.  Mills,  et  al.,  v.  W.  H.  Chelf.  505 

APPEAL  PROM  MARION  COUNTY  COURT. 

October  12,  1875. 

Opinion  by  Judge  Peters  : 

In  December,  1871,  appellee  commenced  his  action  in  ordinary 
in  the  court  below,  against  Mary  M.  Mills,  W.  G.  Mills  and  F. 
Raley,  on  a  note  executed  by  them  to  him  on  the  26th  of  December, 
1870,  for  two  hundred  dollars,  and  due  on  the  4th  of  April  there- 
after, with  interest  from  date. 

Mary  M.  Mills  and  W.  G.  Mills  filed  a  joint  answer,  in  which  they 
allege  that  the  note  sued  on,  with  three  others,  one  for  four  hun- 
dred dollars  due  the  23d  of  December,  1871,  one  for  five  hundred 
dollars,  due  the  23d  of  December,  1872,  and  one  for  the  last-named 
sum  due  tlie  23d  of  December,  1873,  was  executed  by  the  said 
Mary  M.  Mills  as  principal  on  all  of  said  notes,  with  her  husband, 
the  said  W.  G.  Mills,  and  the  said  F.  Raley  as  her  sureties  on  the 
note  for  $200  due  the  4th  of  April,  1871 ;  that  on  the  note  for  $400 
due  the  23d  of  December,  1871,  her  father,  C.  Sanders,  and  on  the 
two  notes  for  $500  eacli,  her  husband  is  her  surety. 

The  notes  were  executed  for  the  purchase  price  of  a  house  and 
lot  in  Lebanon,  purchased  by  Mrs.  Mills  from  appellee,  and  for 
which  he  executed  to  her  a  title  bond,  which  is  filed  as  a  part  of 
the  answer.  They  allege  that  at  the  date  of  said  contract,  Mrs.  M. 
Mills  was  the  wife  of  W.  G.  Mills,  and  rely  upon  the  coverture  to 
defeat  the  action  as  to  her,  as  such  action  is  prejudicial  to  her  inter- 
ests, and  they  pray  for  a  rescission,  and  to  that  end  they  ask  that  the 
case  may  be  transferred  to  a  court  of  equity. 

M.  G.  Mills  and  F.  Raley  say  in  their  answer  that  they  are  only 
the  sureties  of  Mrs.  Mills  on  the  note,  and  that  if  she  is  released 
from  its  payment,  or  the  contract  is  rescinded  as  to  her,  they  should 
also  be  discharged.  A  general  demurrer  was  filed  to  the  answer  and 
sustained,  and  no  further  defense  having  been  made,  the  cause  was 
continued  as  to  Mrs.  Mills,  and  judgment  rendered  against  W.  G. 
Mills  and  Raley,  from  which  they  appealed  to  this  court,  and  suc- 
ceeded in  reversing  it. 

Upon  the  return  of  the  cause  to  the  court  below,  the  demurrer  to 
the  answer  was  overruled ;  and  Chelf  filed  an  amended  petition,  in 
which  he  alleges  that  on  the  25 th  of  December,  1870,  William  G. 
Mills  contracted  to  purchase  a  certain  house  and  lot  from  him  in 
Lebanon,  Ky.,  at  the  price  of  $1,600,  and  executed  four  notes 


5o6  Kentucky  Opinions. 

payable  at  the  respective  dates  and  for  the  several  amounts  herein 
before  stated;  that  said  Mills  was  then  insolvent,  and  it  was  there- 
fore agreed  by  them  that  $600,  part  of  the  purchase  money,  should 
be  secured  to  him  by  personal  surety,  and  in  fulfilment  of  that 
agreement  F.  Raley  signed  the  note  for  $200  as  surety,  and  C.  San- 
ders signed  the  note  for  $400  as  surety,  and  the  remaining  two  notes 
for  $500  each  were  secured  by  a  lien  retained  on  the  house  and  lot ; 
and  that  the  name  of  Mary  M.  Mills  was  signed  to  all  of  said  notes 
at  th€  instance  of  her  husband,  William  G.  Mills. 

Chelf  avers  that  the  contract  for  the  sale  of  the  prc^rty  was 
made  with  said  William  G.  Mills  for  the  benefit  of  his  wife,  but  that 
said  W.  G.  Mills  took  the  notes  and  signed  them  himself,  and  pro- 
cured the  other  obligors  thereon  to  sign  them,  and  he  thereupon  exe- 
cuted the  title  bond  filed  with  the  answer,  binding  himself  to  con- 
vey the  property  to  Mrs.  Mary  M.  Mills  at  the  special  instance  and 
request  of  her  husband. 

He  alleges  that  he  has  a  good  title  to  the  property,  tenders  a  deed 
with  covenant  of  general  warranty,  acknowledged  before  the  proper 
officer,  with  the  relinquishment  of  the  potential  right  of  dower  of 
his  wife,  and  sets  forth  his  derivation  of  title. 

William  G.  Mills',  in  his  answer  to  the  amended  petition,  denies 
that  he  made  the  purchase  of  the  house  and  lot,  and  denies  that  he  ap- 
plied to,  or  procured  Raley  &  Sanders,  or  either  of  them,  to  sign 
said  notes  as  his  surety,  or  in  any  other  capacity.  He  alleges  that 
his  wife  made  said  purchase  against  his  wishes  and  solicitations;  that 
if  he  made  any  communications  to  the  plaintiff  on  the  subject  of  said 
purchase,  it  was  as  the  agent  of  his  wife,  and  not  for  himself ;  that 
he  may  have  made  some  communications  to  plaintiff  on  the  subject, 
but  that  they  were  made  as  the  agent  of  his  wife,  which  was  well 
known  to  plaintiff ;  and  he  alleges  that  his  wife  procured  Raley  and 
Sanders  to  sign  the  notes  as  her  sureties,  and  that  he  signed  all  of 
said  notes  as  her  surety  also,  for  the  reason  that  it  was  necessary  to 
make  them  binding  on  his  wife.  He  filed  three  letters  addressed  by 
Chelf  to  him  as  a  part  of  his  answer,  to  show  that  Chelf  regarded 
his  wife  as  the  purchaser  of  his  property,  and  prays  that  he  shall  not 
be  held  bound  by  the  contract,  if  it  shall  be  adjudged  that  it  is  not 
obligatory  on  his  wife  on  account  of  her  coverture ;  and  to  obtain 
relief  he  makes  his  answer  a  cross-petition. 

Sanders,  in  his  answer,  admits  he  executed  the  note  for  $400,  and 
says  that  he  signed  it  solely  as  the  surety  of  ^lary  M.  Mills,  and  by 
her  request,  and  not  at  the  request  of  her  husband,  M.  G.  Mills.  He 


W.  G.  Mills,  et  al.,  v.  W.  H.  Chelf.  507 

denies  that  W.  G.  Mills  purchased  said  house  and  lot,  but  affirms 
that  the  same  were  purchased  by  Mary  M.  Mills,  and  that  she  hav- 
ing made  the  purchase,  he  executed  a  bond  to  her  for  the  title.  He 
made  his  answer  a  cross-petition  against  Mrs.  Mills  and  Chelf,  and 
prays  that  if  Mrs.  Mills  relies  on  her  coverture,  and  the  contract 
cannot  be  enforced  against  her  on  that  account,  he  may  be  discharged 
from  liability  as  her  surety. 

Mrs.  Mills,  in  her  answer  to  Chelf's  amended  petition  and  to  the 
cross-petition  of  her  husband  and  Raley  and  Sanders,  avers  that  she 
purchased  said  property  against  the  wishes  and  over  the  objections 
of  her  husband,  and  that  it  was  at  her  solicitations  that  Sanders  and 
Raley  signed  the  notes  to  which  their  names  severally  appear  as 
sureties  for  her,  and  not  for  her  husband.  She  denies  that  the  plain- 
tiflf  had  ever  tendered  a  deed  to  her,  and  pleadsr  her  coverture  as  a 
bar  to  any  recovery  against  her. 

Raley's  answer  is  the  same  in  substance  as  that  of  Sanders.  The 
plaintiff  below  put  in  a  reply  to  the  several  cross-petitions,  which 
we  deem  unnecessary,  and  is  a  mere  elaboration  of  his  amended  pe- 
tition. 

On  final  hearing  the  petition  as  to  Mrs.  Mills  was  dismissed  at 
appellee's  costs,  and  judgment  was  rendered  in  favor  of  appellee 
against  M.  G.  Mills  and  F.  Raley  for  two  hundred  dollars,  with  in- 
terest at  the  rate  of  six  per  centum  per  annum  from  the  25th  of  De- 
cember, 1870,  till  paid,  and  against  said  M.  G.  Mills  and  C.  Sanders 
for  four  hundred  dollars,  with  interest  thereon  at  the  rate  of  six 
per  centum  per  annum  from  the  last-named  day  till  paid,  and  his 
costs,  and  in  favor  of  appellee  against  William  G.  Mills,  for  the  sum 
of  $500,  with  interest  from  said  last-named  day  till  paid ;  and  it  was 
adjudged  that  appellee  has  a  lien  on  the  house  and  lot  for  the  amount 
of  the  last-named  note,  and  also  for  a  note  for  a  like  sum  due  on  the 
2Sth  of  December,  1873,  with  interest  from  the  26th  of  December, 
1870,  till  paid,  which  was  not  due  when  the  amended  petition  was 
filed,  but  which  was  then  due. 

It  was,  therefore,  further  adjudged  that  said  house  and  lot,  a  par- 
ticular description  of  which  was  given,  be  sold  at  public  outcry  at 
the  courthouse  door  in  Lebanon,  Ky.,  on  the  first  day  of  a  county 
or  circuit  court  for  said  county,  on  credit  of  six,  twelve  and  eighteen 
months,  or  enough  thereof  to  pay  the  sum  of  $1,600,  with  the  costs 
of  appellee  and  Sanders  and  Raley.  Proper  and  specific  directions 
are  given  the  master,  who  is  directed  to  make  the  sale,  as  to  the 
manner  the  same  was  to  be  advertised,  and  to  whom  the  bonds  for 


5o8  Kentucky  Opinions. 

the  purchase  money  were  to  be  taken,  which  were  to  bear  interest 
from  date. 

From  that  judgment  W.  G.  Mills,  Raley  and  Sanders  have  ap- 
pealed. In  the  opinion  delivered  by  this  court,  when  the  case  was 
here  on  the  former  appeal,  it  is  said  if  the  husband  should  make  a 
contract  jointly  with  the  wife,  and  agree  that  the  deed  should  be 
made  to  the  latter,  the  contract  could  then,  doubtless,  be  enforced 
against  the  husband,  or  if  the  present  contract  were  made  at  the  in- 
stance of  the  husband  for  the  benefit  of  the  wife,  it  may  be  that  the 
contract  would  be  regarded  as  that  of  the  husband,  and  a  chancellor 
would  enforce  it.  Whether  the  husband  can  bind  himself  as  the 
surety  of  the  wife  was  not  then  necessary  to  decide.  But  the  judg- 
ment was  reversed,  and  the  cause  sent  back  with  directions  to  the 
court  below  to  overrule  the  demurrer  to  the  answers,  to  transfer  it 
to  the  equity  docket,  and  to  allow  amended  pleadings. 

Appellee,  in  his  deposition,  admits  the  writing  of  the  letters  to 
W.  G.  Mills  filed  by  him  with  his  answer,  but  says  he  never  saw 
Mrs.  Mills,  or  spoke  to  her  on  the  subject  of  the  sale  of  the  house 
and  lot ;  that  he  had  several  conversations  with  William  G.  Mills  on 
the  subject  of  the  sale,  in  which  he  spoke  of  the  attachment  of  his  wife 
to  the  property ;  that  finally  he  met  with  said  Mills  in  Lebanon, 
when  the  terms  of  sale  were  agreed  upon  between  them,  and  Mills 
then  said  he  wanted  the  bond  for  title  made  to  his  wife,  and  wanted 
the  deed  made  to  her ;  that  it  was  a  part  of  the  agreement  that  for 
$600  of  the  purchase  money  he  was  to  have  two  notes,  one  for  $200 
and  one  for  $400,  executed  with  good  personal  security ;  that  said 
Mills  told  him  he  would  pay  him  for  the  property  out  of  the  proceeds 
of  his  livery  stable,  which  he  was  at  the  time  keeping  with  one 
Doyle ;  and  he  proves  that  he  contracted  for  the  sale  of  his  property 
with  William  G.  Mills  with  the  assurance  from  him  that  he  was  to 
pay  for  it,  and  gave  his  within  obligation  to  make  the  conveyance  to 
the  wife  by  the  request  of  Mills. 

These  statements  are  uncontradicted  by  any  evidence  in  the  case. 
Mills  could  not  have  acted  as  the  agent  of  his  wife ;  there  is  no  effort 
to  prove  that  he  acted  in  that  capacity  in  making  the  purchase ;  and 
it  is  not  proved,  nor  even  alleged,  that  Mrs.  Mills  had  any  means 
whatever  to  pay  for  the  property.  The  conclusion  cannot  be  resisted 
that  William  G.  Mills  made  the  contract  with  appellee  for  the  pur- 
chase of  the  property,  and  for  some  reason  not  material  to  the 
merits  of  this  controversy,  intended  to  have  the  title  conveyed  to  his 
wife;  and  the  court  below  properly  adjudged  that  as  between  Wil- 


David  Stoe«)ard  v,  Flemingsburg,  etc.,  Tpk.  Road  Co.      509 

liam  G.  Mills  and  appellee,  it  should  be  enforced,  and  the  notes 
signed  by  Raley  and  Sanders  respectively  were  obligatory  on  them. 
But  we  cannot  approve  the  judgment  as  rendered.  The  note  for 
$500,  which  matured  on  the  25th  of  December,  1873,  was  not  due 
when  the  amended  petition  was  filed  on  the  i8th  of  June,  1873.  No 
amendment  nor  supplemental  petition  has  been  filed  since  the  last 
named  period,  and  consequently  there  is  no  allegation  that  said 
note  was  not  paid.  When  said  amendment  was  filed  appellee  had  no 
cause  of  action  on  that  note,  and  since  then,  from  anything  that 
appears,  it  may  have  been  paid.  The  mere  filing  of  a  writing  evi- 
dencing a  debt  will  not  authorize  a  judgment  on  it.  It  must  be 
alleged  that  there  is  a  debt  due  and  unpaid,  and  the  facts  stated 
showing  the  indebtedness.  That  is  not  done  in  this  case ;  and  indeed 
the  allegations  are  scarcely  sufficient  to  authorize  a  judgment  on 
the  note  for  $400  and  the  one  for  $500  due  the  25th  of  December, 
1872.  For  the  error  herein  suggested  (none  other  being  perceived 
prejudicial  to  appellants)  the  judgment  is  reversed ,  and  the  cause 
is  remanded  with  directions  to  permit  appellee  to  amend  his  petition, 
and  for  further  proceedings  consistent  herewith. 

C.  S.  Hill,  J.  W.  Rodman,  for  appellants. 
A.  /.  James,  W.  H.  Chelf,  for  appellee. 


David  Stoddard  v.  Flemingsburg  &  Poplar  Plains  Turn- 
pike Road  Co. 

Damages — Recovery  for  Injury — Negligence. 

It  is  the  duty  of  a  turnpike  company  to  keep  its  road  free  from 
obstructions  and  upon  its  failure  to  do  so  must  answer  in  damages 
resulting  from  an  injury  by  reason  of  its  neglect  of  duty. 

Duty  of  Tumpipe  Company. 

When  an  obstruction  such  as  a  road  roller  is  left  standing  on  the 
roadway  late  in  the  afternoon,  without  the  knowledge  or  fault  of  the 
company  or  its  agent  and  before  the  company  had  a  reasonable  oppor- 
tunity of  knowing  of  the  obstruction,  the  company  cannot  be  held 
liable  for  damages  to  a  traveler  on  the  road  whose  horse  scared  at 
the  obstruction  and  ran  away»  especially  where  it  is  shown  that  the 
obstruction  remained  in  the  road  only  over  night 


5IO  Kentucky  Opinions. 

APPEAL  FROM  FLEMING  CIRCUIT  COURT. 

October  13,  1875. 

Opinion  by  Judge  Pryor  : 

The  evidence  in  this  case  upon  the  part  of  the  plaintiff  in  the 
court  below  (appellant  in  this  court),  shows  that  the  wooden  roller 
was  seen  near  the  traveled  portion  of  appellee's  road  late  one  even- 
ing about  sundown,  and  the  next  morning  was  seen  in  an  adjacent 
field,  being  then  in  use  by  its  owner ;  that  early  in  the  morning  suc- 
ceeding the  day  in  which  it  had  been  left  on  the  roadside,  the  ap- 
pellant was  driving  on  the  road  when  his  horse  became  frightened 
at  the  roller,  and  the  result  was  a  serious  injury  to  appellant  by 
being  thrown  from  the  vehicle  in  which  he  was  riding.  It  is  shown 
that  there  was  an  embankment  of  from  four  to  six  feet  near  this 
part  of  the  road,  but  nothing  in  the  proof  showing  that  it  was  dan- 
gerous, and  not  in  a  condition  for  all  the  ordinary  purposes  of 
travel;  on  the  contrary,  the  proof  shows  that  the  cause  of  the 
accident  was  the  scare  of  the  horse  at  the  roller  on  the  roadside. 
There  is  no  evidence  that  any  of  the  officers  of  the  road  had  notice 
that  the  roller  was  within  the  boundary  of  the  road;  nor  does  it 
appear  that  it  had  been  there  long  enough  for  those  superintending 
the  road,  by  the  exercise  of  the  proper  diligence,  to  have  ascertained 
the  fact. 

It  does  appear  from  the  evidence  on  the  part  of  the  appellee,  that 
the  toll-gate  keeper  passed  the  owner  of  the  roller  at  the  time  the 
latter  was  unhitching  his  horses,  when  about  to  leave  it  on  the  road- 
side. This  was  late  in  the  evening  preceding  the  morning  on  which 
the  accident  happened.  It  seems  that  this  agent  of  the  company 
was  only  employed  to  keep  the  toll-gate,  and  occasionally  beat  rock 
upon  the  road.  It  was  no  part  of  his  duty  to  remove  obstructions 
from  the  road;  nor  was  the  nature  of  his  employment  such  as  to 
authorize  the  court  to  say  that  notice  to  him  was  notice  to  the  com- 
pany. Nor  does  it  even  appear  that  the  toll-gate  keeper  had  any 
notice,  except  the  fact  that  the  owner  of  the  roller  was  taking  his 
horses  from  it  as  the  gate  keeper  passed  the  road.  It  is  the  duty 
of  turnpike  companies  to  keep  their  roads  free  from  obstructions, 
and  upon  their  failure  to  do  so  must  answer  in  damages  resulting 
from  an  injury  by  reason  of  this  neglect  of  duty.  Yet  when  an 
obstruction  is  placed  upon  the  road  without  the  knowledge  or 
fault  of  the  company  or  its  agent,  and  before  the  company  had  a 


Louisville  City  R.  Co.  v.  Preston  Johnson's  Adm'r.      511 

reasonable  opportunity  of  ascertaining  that  the  obstruction  existed, 
for  an  injury  to  the  traveler  resulting  by  reason  of  it,  the  company  is 
not  responsible. 

Upon  the  appellant's  own  testimony,  no  verdict,  if  rendered,  could 
be  sustained.  The  evidence  on  the  part  of  the  defendant,  and 
which  seems  to  be  admitted  in  argument,  about  which,  however, 
there  can  be  no  controversy,  is  that  the  owner  left  the  roller  in  or 
near  the  fence  adjoining  the  road  near  sundown  one  evening,  and 
removed  it  between  sunrise  and  eight  o'clock  the  next  morning.  It 
can  hardly  be  said  that  in  a  case  like  this,  where  no  one  connected 
with  the  management  of  the  road  had  notice  of  the  obstruction,  that 
the  company  should  be  deemed  guilty  of  negligence.  A  court  or 
jury  has  the  right  to  look  to  the  nature  of  the  country  through 
which  the  road  runs,  the  amount  and  character  of  travel  upon  it,  in 
order  to  determine  the  question  of  negligence.  A  turnpike  com- 
pany is  not  an  insurer  of  all  who  go  upon  its  road  against  all  the 
accidents  incident  to  travel.  The  road  must  be  free  from  obstruc- 
tions and  in  a  condition  to  answer  all  the  ordinary  purposes  of 
travel.  There  are  locations  on  a  road  where  more  pains  should  be 
taken  to  prohibit  the  traveler  from  danger  than  at  others ;  a  defect 
in  a  road  running  through  a  town  or  densely  populated  village 
might  be  regarded  as  dangerous,  when  the  same  defect  upon  a  turn- 
pike running  through  the  country  would  be  held  not  to  be  so.  2 
Hilliard  399.  Although  these  questions  are  for  the  jury  to  deter- 
mine, if  there  is  no  negligence  on  the  part  of  the  party  charged,  the 
court,  as  in  other  cases,  should  instruct  the  jury  to  find  for  the 
defendant.  We  are  satisfied  that  upon  the  facts  of  this  case  a 
verdict  could  not  be  upheld.  It  is,  therefore,  immaterial  whether 
the  instructions  were  proper  or  not;  the  defendant  was  entitled  to 
the  finding. 

Judgment  affirmed. 

Cord  &  Alexander,  John  Rodman,  for  appellant. 
Phister  &  Andrezvs,  for  appellee. 


Louisville  City  Railway  Co.  v.  Preston  Johnson's  Adm'r. 


Damages — Instructions — Negligence. 

It  is  the  duty  of  a  street  car  company  to  select  only  drivers  and 
agents  qualified  to  perform  their  duties  with  care  and  prudence,  and 
it  is  the  duty  of  such  agents  to  exercise  care  and  diligence  to  prevent 
injury  to  others. 


512  Kentucky  Opinions. 

Instructions. 

Where  a  child  was  injured  by  being  struck  by  a  street  car  an  in- 
struction is  erroneous  which  tella  the  jury  that  the  defendant  is  not 
liable  if  the  driver  of  the  car  did  not  see  the  child,  or  could  not  by 
ordinary  diligence  have  seen  it.  The  right  of  recovery  cannot  be 
made  to  depend  upon  the  sole  question  as  to  whether  the  driver  saw 
the  party  injured  or  by  ordinary  diligence  oould  have  seen  him. 

Negligence. 

A  street  car  company  is  not  liable  for  injuring  a  person  attempting 
to  cross  its  track,  even  though  the  driver  of  the  car  saw  the  person 
or  by  ordinary  vigilance  might  have  done  so,  unless  when  seen  by  the 
driver  the  person  injured  was  in  a  position  where  a  prudent  driver 
ought  to  have  had  sufficient  cause  to  believe  the  car  must  have  run 
upon  him  unless  checked. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

October  15,  1875. 

Opinion  by  Judge  Pryor  : 

The  motion  for  a  new  trial  was  left  undetermined  by  the  court 
below  when  the  former  judgment  was  rendered,  and  upon  the  return 
of  the  cause  that  court  was  directed  to  enter  a  judgment  for  the  ap- 
pellees, unless  in  the  opinion  of  the  court  a  new  trial  should  be 
granted.  The  grounds  or  reasons  for  a  new  trial  were  set  forth  in 
writing,  and  the  motion  made  in  proper  time. 

All  the  instructions  asked  for  by  both  appellant  and  appellee 
were  refused,  and  instructions  given  in  lieu  thereof  by  the  court,  to 
which  exceptions  were  taken  by  both  parties.  The  second  instruc- 
tion reads,  "Ordinary  negligence  is  the  want  of  such  diligence  and 
care  as  a  prudent  person  would,  in  such  a  situation  and  under  the 
surrounding  circumstances,  have  observed  to  prevent  accident  to 
others." 

This  instruction,  we  think,  is  not  liable  to  objection.  The  cars 
owned  by  the  appellant  are  running  constantly  over  the  streets  of  a 
large  city ;  and  when  persons  at  each  crossing  are  constantly  passing, 
it  is  made  the  duty  of  the  appellants  engaged  in  this  business  to 
select  drivers  and  agents  with  reference  to  their  competency  and  the 
nature  of  the  employment,  and  none  but  careful  and  prudent  men 
should  be  chosen  to  drive  or  manage  its  teams  in  carrying  pas- 
sengers ;  and  this  duty  arises  not  only  from  the  necessity  of  securing 
the  safety  and  comfort  of  passengers,  but  to  protect  the  citizen, 
whose  right  to  be  upon  the  street  is  unquestioned,  from  the  danger 


Louisviu-E  City  R.  Co.  v.  Preston  Johnson's  Adm'r.     513 

of  being  injured  by  reckless  or  careless  drivers.  Nor  does  such  an 
instruction  make  the  appellant  an  insurer  of  the  lives  of  those,  whose 
own  negligence  causes  the  injury.  The  meaning  of  the  instruction 
is  that  appellant's  agent  must  exercise  the  same  care  and  diligence 
that  a  careful  and  competent  driver  would  have  exercised  under 
the  circumstances. 

Instruction  No.  6  says  to  the  jury  that  if  they  believe  from  the 
testimony  that  Preston  Johnson  was  not  hurt  by  the  street  car,  or 
if  hurt  by  the  street  car,  he  caused  the  hurt  by  his  own  negligence 
in  running  under  the  mules  or  car,  and  the  driver  did  not  see  him, 
or  could  not  by  ordinary  diligence  have  seen  him,  the  verdict  should 
be  for  the  defendant.  This  instruction  was  erroneous.  The  right 
of  recovery  is  made  to  depend  upon  the  question  as  to  whether  the 
driver  saw  the  party  injured,  or  by  ordinary  diligence  could  have 
seen  him,  and  the  natural  or  legitimate  inference  must  necessarily 
be  that  if  the  driver  saw  the  boy,  or  could  liave  seen  him,  he  was 
responsible. 

The  seventh  instruction  tells  the  jury  that  "If  the  boy  attempted 
to  cross  the  street  in  front  of  the  car,  suid  the  driver  was  attending 
strictly  to  his  duty  and  did  not  see  him,  such  negligence  on  the 
part  of  Johnson  exonerated  the  appellant  from  liability."  There  was 
no  testimony  in  the  case  that  the  driver  saw  the  unfortunate  boy 
prior  to  the  accident,  or  that  the  latter  was  in  such  a  position  with 
reference  to  the  driver  that  he  could  have  been  seen  by  him.  The 
weight  of  the  testimony  indicated  that  if  the  injury  wa»  done  by  the 
car,  it  was  by  one  of  the  hind  wheels.  Only  one  witness  speaks  of 
his  being  struck  by  the  front  wheel.  This  witness  also  states  that 
the  boy  was  making  an  effort  to  cross  the  street,  and  was  not 
touched  by  the  mules,  but  first  struck  by  this  front  wheel.  Although 
the  appellant  may  have  seen  him,  or  by  the  exercise  of  ordinary 
vigilance  could  have  seen  him,  still  the  company  is  not  liable  unless 
when  seen  by  the  driver  Johnson  was  in  a  position  where  a  prudent 
driver  ought  to  have  had  sufficient  cause  to  beHeve  the  car  must  run 
upon  him  unless  checked.  If  the  boy  attempted  to  cross  the  street 
directly  in  front  of  the  car,  he  placed  his  own  life  in  peril,  and  the 
company  is  not  responsible,  unless  by  the  exercise  of  such  care  as 
a  prudent  driver  would  have  exercised  under  the  circumstances, 
that  accident  could  have  been  avoided.  And  in  determining  this 
question  the  jury  must  necessarily  look  to  the  position  of  both  the 
injured  party  and  the  driver  at  the  time  the  accident  occurred. 

The  answer  in  this  case  also  puts  in  issue  the  right  of  the  appellee 

33 


514  Kentucky  Opinions. 

to  maintain  the  action.  It  is  denied  that  she  is  the  administratrix  of 
Preston  Johnson.  The  letters  of  administration  were  not  filed 
with  the  petition,  nor  until  after  the  answer  was  made.  It  does  not 
appear  that  these  letters  were  offered  in  evidence.  The  judgment 
of  the  court  below  is  reversed  and  cause  remanded,  with  directions 
to  award  the  appellant  a  new  trial,  and  for  further  proceedings  con- 
sistent with  this  opinion. 

Mundy  &  Parson,  for  appellant.    R,  H.  Blain,  for  appellee. 


S.  H.  Shanks,  et  al.,  v.  R.  M.  Pitman,  et  al. 

Husband  and  Wife — Secret  Trust — Right  of  Creditors. 

Where  a  husband  after  marriage  took  possession  of  his  wife's 
money  and  agreed  with  her  to  Invest  It  In  lands  for  her  benefit,  but 
bought  lands  taking  title  In  his  own  name  and  after  many  years 
mortgaged  It  to  creditors,  the  wife's  claim  Is  subordinate  to  the  claim 
of  creditors  who  loaned  their  money  to  the  husband  without  any 
knowledge  of  the  secret  claim  of  the  wife. 

APPEAL  FROM  LINCOLN  CIRCUIT  COURT. 

October  16,  1875. 

Opinion  by  Judge  Pryor  : 

There  can  be  no  doubt  but  that  the  husband  agreed  in  parol 
with  the  wife  after  the  marriage,  to  invest  her  money  in  land  and 
have  the  title  secured  to  her.  This  post-nuptial  agreement  seems  to 
have  been  recognized  at  the  time  the  settlement  was  made  by  the 
wife's  guardian,  and  the  money  and  choses  in  action  belonging  to 
her  paid  and  assigned  to  her  husband.  The  husband  disregarding 
his  promises  to  the  wife  after  receiving  her  estate,  never  secured 
her  in  the  right  to  enjoy  the  little  patrimony  left  her  by  her  father^ 
but  by  reckless  trading,  connected  with  his  dissipated  habits,  not 
only  squandered  his  own  estate,  but  all  that  he  had  received  by  her. 
He  was  considered  in  prosperous  circumstances  when  the  marriage 
took  place,  and  this  tended  to  lull  inquiry  on  the  part  of  the  wife, 
and  perhaps  induced  the  husband  to  forget  his  pledges  to  her.  This 
parol  contract  was  made  in  the  year  1867 ;  and  the  husband  at  that 
time  was  invested  by  the  settlement  and  transfer  made  by  the 
guardian,  with  a  competent  title  to  all  the  wife's  choses  in  action. 
He  invested  this  money  shortly  after  in  land  for  his  own  benefit. 


S.  H.  Shanks,  et  al.,  z/.  R.  M.  Pitman,  et  al.  515 

or  at  least  in  his  own  name ;  and  no  attempt  to  enforce  this  claim  in 
law  or  equity  against  the  husband  by  the  wife,  seems  to  have  been 
made  until  the  year  1874,  when  the  husband's  estate  was  sought  to 
be  made  liable  to  the  pa>Tnent  of  his  debts.  No  notice  of  this  hidden 
equity  on  the  part  of  the  wife  was  brought  to  the  knowledge  of 
creditors,  nor  had  they  any  reason  to  believe  that  such  a  claim 
existed;  on  the  contrary,  the  husband  had  taken  possession  of  the 
wife's  estate,  and  invested  it  in  land  in  his  own  name,  his  right  to 
which  was  of  record  in  the  chancery  court,  where  his  title  as  pur- 
chaser had  been  recognized  and  confirmed. 

The  money  for  which  the  notes  were  executed  to  the  appellant 
was  loaned  the  husband  upon  the  faith  of  this  property,  and  a 
mortgage  executed  upon  it  to  secure  the  payment.  He  had  sold  or 
exchanged  a  part  of  this  land  for  other  land,  the  wife  uniting  with 
him  in  the  deed,  upon  renewed  promises  to  secure  her;  and  whilst 
he  again  seems  to  have  been  unmindful  of  his  obligation,  there  can 
be  no  equity  in  such  a  case  on  the  part  of  the  wife  against  appel- 
lant's claim.  The  right  to  the  land  was  not  only  in  the  husband, 
but  he  purchased  it  with  money  and  notes  that,  so  far  as  third  per- 
sons were  concerned,  belonged  to  him.  If  the  equity  of  the  wife 
can  be  enforced  at  all,  she  could  only  assert  her  claim  as  a  creditor 
of  the  husband,  and  in  a  contest  with  creditors,  the  appellant  shows 
a  lien  upon  the  property  by  the  mortgage  executed  to  secure  the 
notes. 

In  Latham  v.  Glen,  the  wife  was  permitted  to  hold  the  property 
against  creditors  because  the  husband  had  executed  a  conveyance  of 
the  property  to  the  wife,  in  discharge  of  his  equitable  claim  upon 
him,  before  the  claims  of  creditors  had  been  asserted.  In  this  case 
the  husband  has  created  a  lien  upon  tlie  property  in  favor  of  the 
creditor  before  the  wife's  equity  is  asserted;  and  the  fact  that  the 
husband  has  only  an  equitable  title  to  the  land  does  not  enlarge  the 
equity  of  the  wife  or  defeat  the  lien  created  by  the  mortgage  upon 
it,  to  secure  appellants'  debt.  This  court  said  in  the  case  of  Mara- 
man's  Adm'r  v.  Maraman,  when  the  husband  had  sold  the  wife's 
land  and  slaves,  at  the  same  time  executing  his  notes  to  his  wife  for 
a  part  of  the  money  received  by  him,  with  a  promise  on  the  part  of 
the  husband  that  he  would  secure  her  in  the  amounts  they  called 
for,  that  the  natural  tendency  of  her  conduct  was  to  give  the  hus- 
band credit  with  others  who  knew  nothing  of  the  agreement  between 
them.  As  she  has  come  into  equity  for  relief,  soimd  policy  seems  to 
forbid  that  the  claim,  which  has  no  legal  validity,  shall  be  placed 


5i6  Kentucky  Opinions. 

upon  an  equal  footing  with  the  legal  demands  of  creditors.  This 
question  originated  in  the  settlement  of  the  husband's  estate  that 
was  insolvent,  and  the  equitable  claim  of  the  wife  postponed  until 
the  demands  of  creditors  w«re  satisfied.  Maraman's  Adm'r  v. 
Maraman,  4  Met.  92. 

In  the  case  of  Pryor,  Assignee,  v.  Smith,  et  aL,  4  Bush  380,  where 
the  husband  had  sold  the  wife's  land,  and  at  the  time  agreed  to  in- 
vest for  her  the  amount  realized  from  this  sale  in  another  tract  that 
he  was  at  the  time  contracting  for,  the  husband  having  purchased 
the  land  with  the  deed  made  to  himself,  became  insolvent ;  and  in  a 
controversy  between  the  wife  and  the  husband's  creditors,  this 
court  said,  "These  transactions  constituted  a  complete  conversion 
and  reduction  of  her  estate  in  the  land  by  her  husband  to  his  pos- 
session; and  generally,  where  this  is  done,  a  court  of  equity  will 
not  interpose  to  provide  for  the  wife  to  the  exclusion  of  the  claims 
of  creditors."  In  the  present  case  the  husband  had  not  only  secured 
the  legal  title  to  the  choses  in  action  of  the  wife,  by  the  assignment 
to  him  from  the  guardian,  but  after  reducing  them  to  possession, 
purchased  with  these  notes  land  in  his  own  name,  and  then  executed 
the  mortgage  upon  it  to  appellant  for  money  borrowed  for  his  own 
purposes.  This  was  such  a  conversion  of  the  wife's  estate  by  the 
husband  as  made  him  the  absolute  owner,  and  the  wife's  equitable 
claim  upon  him  subordinate  to  the  claims  of  creditors.  The  judg- 
ment of  the  court  below  is  reversed,  and  cause  remanded  for  further 
proceedings  consistent  with  this  opinion. 

r.  p.  Hill,  M,  C.  SauRey,  for  appellants. 

R.  C.  Warren,  IV.  G.  Welsh,  Durliam  &  Jacobs,  for  appellees. 


R.  S.  Vaughan's  G'd'n  v.  J.  L.  Burkhart. 
Same  v.  City  of  Louisville,  et  al. 

Landlord  and  Tenant— Eviction. 

Where  the  tenant  is  evicted  before  his  rent  becomes  due,  the  land- 
lord cannot  recover  for  the  unexpired  term  from  the  date  of  eviction. 

Eviction. 

Where  a  tenant  has  a  written  lease  on  the  wife's  real  estate  exe- 
cuted by  the  husband  and  wife,  he  may  legally  hold  the  estate  against 
the  lessor  and  his  vendee.  Such  tenant  under  such  circumstances 
can  hold  the  estate  against  one  who  inherits  it  before  the  expiration 
of  the  lease. 


R.  S.  Vaughan's  G'd'n  v,  J.  L.  Burkhart.  517 

Eviction. 

Wbere  a  tenant  holding  a  lease  during  the  term  becomes  the  pur- 
chaser of  the  real  estate  his  leasehold  interest  merges  in  his  fee  sim- 
ple title  and  the  relation  of  landlord  and  tenant  ceases  to  exist. 

Taxes. 

The  perpetual  lien  for  taxes  secured  by  clauses  found  in  a  city  char- 
ter, means  only  that  the  lien  exists  so  long  as  the  right  to  collect  taxes 
can  be  enforced,  and  such  collection  cannot  be  enforced  after  five 
years. 

appeal  from  LOUISVILLE  CHANCERY  COURT. 

October  19,  1875. 

Opinion  by  Judge  Pryor: 

If  the  tenant  is  evicted  before  his  rent  becomes  due,  there  can  be 
no  doubt  but  that  the  landlord  would  be  denied  the  right  to  recover 
for  the  unexpired  term  from  the  date  of  eviction  to  the  termination 
of  the  lease;  and  when  the  holding  by  both  the  lessee  and  lessor 
was  manifest,  the  party  entitled  might  assert  his  claim  for  the 
entire  rent.  This  question  does  not  arise  in  the  present  case.  The 
appellee,  Burkhart,  had  acquired  an  interest  in  the  realty  for  the 
period  of  five  years  by  reason  of  the  lease  from  the  ancestors  of 
the  appellants.  The  realty  belonging  to  the  wife,  she,  having  united 
in  the  lease  with  her  husband,  vested  the  tenant  with  the  right  to 
hold  the  estate  against  both  the  husband  and  wife  and  their  vendee, 
until  the  lease  expired.  If  they  had  sold  the  land,  the  tenant  could 
not  have  been  evicted  by  the  purchaser,  and  we  see  no  reason  why 
the  appellants,  who  inherited  this  realty  from  the  mother,  is  in  a 
better  condition  than  she  would  have  been  if  she  had  sold  the  land. 
After  the  death  of  the  mother,  the  appellees  held  under  their  title, 
and  when  they  undertook  to  sell  the  property,  and  did  in  fact  sell 
it,  the  purchaser  acquired  all  their  interests.  The  sale  was  not 
made  subject  to  the  lease ;  and  if  an  entire  stranger  to  the  land  had 
bought,  he  would  have  acquired  a  complete  title.  If  so,  the  tenant, 
being  the  purchaser,  the  lesser  estate  was  merged  in  the  greater,  and 
he  became  entitled  to  the  rent.  The  appellee  was  not  a  party  to  the 
action  brought  to  sell  the  realty,  and  although  willing,  no  doubt, 
that  a  sale  should  be  made,  when  he  became  the  purchaser  the  prop- 
erty \r?s  his  absolutely,  and  the  relation  of  landlord  and  tenant  no 
longer  existed.  It  was,  therefore,  proper  to  deduct  the  amount  of 
rent  unpaid  from  the  purchase  price. 


5i8  Kentucky  Opinions. 

The  lien  of  the  city  upon  the  property  of  the  citizen  was  intended 
to  secure  the  payment  of  the  taxes.  The  law  prescribed  the  mode  of 
making  the  assessment  and  collecting  the  taxes ;  and  the  legislature 
never  designed  that  the  city  should  have  a  perpetual  Hen  on  the 
real  estate  or  other  property  within  its  boundary  for  the  payment 
of  its  tax  claims.  If  five  years  is  no  bar  to  the  recovery,  there  is 
no  limitation  to  be  found.  The  city  ought  not  to  be  allowed  to  per- 
mit the  purchaser  of  property  within  its  limits  to  be  disturbed  in  his 
right  by  the  production  of  these  state  claims  for  taxes,  for  the 
reason  that  its  officers  have  neglected  their  duty;  but  on  the  con- 
trary, it  should  be  held  to  that  sort  of  vigilance  as  would  tend  to 
secure  the  citizen  in  his  title.  The  perpetual  lien  recognized  by 
a  clause  of  the  city  charter,  means  only  that  the  lien  shall  exist  as 
long  as  the  right  to  collect  the  taxes  can  be  enforced. 

There  is  no  time  fixed  by  the  charter  when  the  claim  for  taxes 
shall  be  asserted,  and  therefore  the  General  Statutes,  page  628, 
must  apply  to  this  case.  "An  action  upon  a  contract  not  in  writing, 
signed  by  the  party,  express  or  implied,  an  action  upon  a  liability 
created  by  statute  when  no  other  time  is  fixed  by  the  statute  creating 
the  liability,  an  action  for  a  penalty,  etc.,  shall  be  commenced  within 
five  years  next  after  the  cause  of  action  accrues."  It  does  not  appear 
when  the  assessment  for  the  taxes  was  made,  but  it  must  be  pre- 
sumed that  it  was  at  the  time  and  manner  provided  by  the  charter. 
The  judgment  for  the  taxes  for  the  year  1868  was,  therefore,  er- 
roneous, as  neither  the  appellants  or  the  purchaser  was  liable  for 
these  taxes;  nor  could  the  property  have  been  subjected  to  their 
payment.  The  judgment  is,  therefore,  reversed  to  the  extent  only 
of  the  judgment  for  taxes  for  the  year  1868.  Cause  remanded  for 
further  proceedings  consistent  with  this  opinion.  The  judgment  for 
the  rent  in  favor  of  Burkhart  is  affirmed. 

Emmet  Field,  for  appellant.    Edwards  &  Seymtoure,  for  Burkhart. 


W.  G.  Wade  v.  First  National  Bank  of  Franklin. 

Promissory  Note— Representations  to  Induce  Signature. 

It  is  the  duty  of  a  creditor  to  deal  with  one  who  becomes  bound  to 
him  as  surety  for  his  debtor  in  the  utmost  good  faith,  but  he  is  not 
bound  to  make  unsought  disclosures  of  the  amount  of  the  principal's 
indebtedness. 

Usury. 

To  receive  usurious  interest  in  advance  is  as  much  a  violation  of 
the  statute  as  to  contract  for  its  payment  at  a  future  time. 


W.  G.  Wade  v.  First  Nat.  Bank  of  Franklin.  519 

APPEAL  FROM  SIMPSON  CIRCUIT  COURT. 

October  21,  1875. 

Opinion  by  Judge  Pryor  : 

That  part  of  the  answers  in  which  it  was  attempted  to  set  up  the 
fact  that  the  bank  had  loaned  to  Collier,  Taylor  &  Co.,  a  sum  ex- 
ceeding ten  per  cent,  of  its  capital  stock  then  paid  in,  did  not  show 
that  the  loans  referred  to  were  exclusive  of  discounts  of  bona  fide 
bills  of  exchange  drawn  against  actually  existing  values,  and  of 
commercial  paper  actually  owned  by  them,  and  consequently  did  not 
show  that  the  bank  had  violated  the  provisions  of  Sec.  29  of  the 
National  Currency  Act.  The  demurrer  to  that  part  of  the  answer 
did  not,  for  this  reason,  raise  the  question  whether  a  note  or  bill 
taken  for  loans  made  in  violation  of  that  section  could  be  enforced. 
There  is  nothing  in  either  answer  sufficient  to  avoid  the  note  or  bill 
on  the  ground  of  fraud  or  misrepresentation,  or  of  the  suppression 
of  facts,  which  it  was  the  duty  of  the  bank  to  communicate.  One 
of  the  misrepresentations  relied  upon  in  the  answer  to  the  petition 
on  the  bill  are  that  the  cashier,  a  few  minutes  after  the  appellant 
had  signed  the  bill,  represented  to  him  that  said  bill  was  but  the 
renewal  of  an  old  note  for  $2,000;  that  a  member  of  the  firm  of 
Collier,  Taylor  &  Co.,  made  the  same  representation  to  him  before 
he  signed  the  bill ;  and  that  he  was  thereby  induced  to  sign  it ;  and 
that  said  representations  were  false.  Of  course  false  representations 
made  by  one  of  his  principals  cannot  have  the  effect  to  absolve  him 
from  his  obligation  to  the  bank,  and  the  representations  of  the 
cashier  having  been  made  after  he  signed,  it  cannot  have  induced 
his  signature  which  was  already  made. 

The  amended  answer  in  one  of  the  cases  which  attempts  to 
avoid  liability  on  the  ground  that  the  bank  suppressed  information 
as  to  the  amount  of  the  indebtedness  of  Collier,  Taylor  &  Co.,  to  it, 
does  not  state  facts  sufficient  to  show  that  it  was  the  bank's  duty  to 
give  information  on  that  subject;  nor  was  the  appellant  authorized 
to  assume  that  their  indebtedness  did  not'  exceed  ten  per  cent, 
of  the  paid  up  capital  of  the  bank.  As  we  have  already  seen,  it 
nowhere  appears  that  the  bank  had  loaned  them  any  more  than  it 
had  a  legal  right  to  loan,  and  it  cannot  be  held  to  have  been  the 
duty  of  the  officers  of  the  bank  unasked  to  disclose  the  amount  of  its 
customers'  indebtedness  to  it. 

We  recc^ize  to  its  fullest  extent  the  duty  of  a  creditor  to  deal 


S20  Kentucky  Opinions. 

with  one  who  becomes  bound  to  him  as  surety  for  his  debtor  in  the 
utmost  good  faith;  but  this  duty  does  not  go  to  the  extent  of  re- 
quiring unsought  disclosures  of  the  amount  of  the  principal's  in- 
debtedness. The  appellant  nowhere  avers  that  he  made  inquiry  of 
any  of  the  officers  of  the  bank  as  to  the  amount  of  the  indebtedness 
of  Collier,  Taylor  &  Co.  to  it,  or  even  that  he  would  have  refused 
to  endorse  for  them  if  he  had  known  what  it  was.  Nor  is  he  exon- 
erated from  liability  on  account  of  the  alleged  payment  of  usury. 
He  does  not  even  allege  that  he  was  ignorant  of  the  rate  of  interest 
being  paid. 

We  perceive  no  error  in  either  judgment  to  the  prejudice  of  the 
appellant.  The  answers  of  the  appellant  do  not  charge  the  payment 
of  usury  upon  the  debts  evidenced  by  the  note  and  bill,  to  the  extent 
to  which  credits  were  allowed  by  the  court  below.  The  substance 
of  the  allegations  on  this  point  is  that  the  bill  and  note  were  given 
for  loans,  and  that  the  bank,  at  the  time,  collected  interest  at  tlie 
rate  of  twelve  per  cent,  per  annum,  and  that  within  two  years  then 
last  past,  the  firm  of  Collier,  Taylor  &  Co.  had  paid  to  the  bank  in 
usurious  interest,  a  sum  exceeding  the  amounts  sued  for.  There 
is  no  allegation  that  any  usurj^  had  been  paid  upon  either  the  bill  or 
note,  or  upon  any  previous  notes  or  bills  for  the  same  debts,  except 
that  paid  at  the  time  of  discounting  the  bill  and  note  sued  on ;  and 
the  amount  of  interest  and  usury  then  paid  was  all  appellant  had  a 
right  to  have  credited  on  them,  respectively. 

Counsel  for  the  bank  insists  that  even  this  cannot  be  allowed, 
because  he  says  the  forfeiture  of  interest,  consequent  upon  charging 
more  than  the  legal  rate,  is  a  penalty  imposed  by  an  act  of  congress, 
and  that  state,  courts  cannot  enforce  such  a  penalty.  We  concede 
that  the  state  courts  have  ordinarily  no  jurisdiction  to  enforce  the 
penal  statutes  of  the  federal  government ;  but  we  think  it  does  not 
follow  from  this  that  a  party  sued  in  a  state  court  upon  a  contract 
in  violation  of  a  penal  law  of  the  United  States,  may  not  set  up  the 
illegality  of  the  contract  as  a  defense.  Under  the  act  of  congress, 
the  payment  of  twelve  per  cent,  annually  at  the  time  of  borrowing 
the  money  was  illegal,  and  the  money  so  paid  may,  at  the  election 
of  any  person  bound  on  the  note  or  bill,  be  treated  as  a  paynjent 
pro  tanto  thereon.  But  the  contract  was  equally  in  violation  of  the 
laws  of  this  state;  and  the  payment  of  usury  may  be  applied  as 
payment  on  the  principal  of  the  debts  without  the  aid  of  the  act 
of  congress. 

We  do  not  concur  with  counsel  that  the  state  statute  does  not 


C  A.  M.  Yarbra  v.  James  Specht.  521 

apply  to  a  case  where  interest,  instead  of  being  charged,  is  reserved 
at  the  time  of  making  the  loan.  The  word  "charge"  used  in  our 
statute  was  intended  to  cover  every  phase  of  an  usurious  transaction. 
To  hold  otherwise  would  be  to  convict  the  legislature  of  the  extreme 
folly  of  so  framing  a  highly  penal  statute  as  to  enable  even  the 
most  unsophisticated  usurer  to  evade  its  provisions  at  pleasure.  We 
are  clearly  of  the  opinion  that  to  receive  usurious  interest  in  advance 
is  as  much  a  violation  of  the  state  statute  as  to  contract  for  its 
payment  at  a  future  time. 

For  the  error  in  allowing  the  appellant  credits  for  usury,  paid 
prior  to  the  time  of  the  execution  of  the  note  and  bill,  the  judgments 
are  rez^ersed  on  the  cross-appeals,  and  the  causes  are  remanded  for 
new  trials  upon  principles  not  inconsistent  with  this  opinion.  The 
judgments  are  aMrmed  on  the  original  appeals. 

W.  P,  D,  Bush,  for  appellant.    R.  Rades,  for  appellee. 


C  A.  M.  Yarbra  v.  James  Specht. 

Practice— Ebcceptions. 

The  failure  to  have  the  court  pass  upon  exceptions  taken  to  the  in- 
troduction of  evidence  is  a  waiver  of  all  objections  to  evidence. 

Bill  of  Particulars. 

A  defendant  has  a  right  to  demand  a  bill  of  particulars  before  he 
answers,  but  where  he  answers  without  one  he  waives  his  right  to 
raise  the  question. 

Bond  for  Costs. 

The  failure  of  a  non-resident  plaintiff  to  give  bond  for  costs  at  the 
time  of  commencing  suit,  was  ground  for  dismissing  it,  but  when  on 
defendant's  motion  the  plaintiff  was  ruled  to  give  bond  ^d  did  so, 
no  motion  having  been  made  to  dismiss,  defendant  waived  his  right 
to  raise  any  question  as  to  the  failure  to  give  such  bond  in  the  first 
instance. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

October  23,  1875. 

Opinion  by  Judge  Cofer  : 

Although  the  appellee  should  have  sued  in  the  common  pleas 
court,  the  failure  of  the  appellant  to  move  to  transfer  the  cause  to 
that  court  was  a  waiver  of  that  irregularity. 

The  evidence  proves  that  the  appellant  was  a  non-resident  when 


522  Kentucky  Opinions. 

the  suit  was  commenced,  and  the  fact  that  he  was  served  with 
process  here  does  not  rebut  that  evidence.  Much  of  the  evidence 
was  incompetent,  and  might  have  been  excluded ;  but  the  exceptions 
of  the  appellant  to  that  evidence  do  not  seem  to  have  been  acted 
upon,  except  as  to  the  deposition  of  the  appellee ;  and  the  failure  to 
have  the  court  below  to  pass  upon  them  was  a  waiver  of  all  objections 
to  the  evidence. 

It  seems  that  the  exceptions  to  the  appellee's  own  deposition  were 
sustained  (though  we  find  no  such  order  in  the  record),  and  the 
order  sustaining  the  exceptions  was  afterwards  set  aside.  This  is 
complained  of,  but  again  the  appellant  has  failed  to  except.  None 
of  the  evidence  having  been  excluded,  but  all  taken  being  before 
the  court,  it  was  ample  to  warrant  the  judgment  rendered.  The 
appellant  has  a  right  to  demand  a  bill  of  particulars  before  he  an- 
swers, but  having  answered  without  one,  it  is  now  too  late  to  raise 
that  objection. 

The  appellant  having  been  proved  to  have  been  a  non-resident 
when  the  suit  was  commenced,  the  attachment  was  properly  sus- 
tained. There  is  no  evidence  whatever  that  appellant  ever  resided 
upon  the  land  levied  on  and  adjudged  to  be  sold;  the  evidence  is 
conclusive  that  he  resided  in  Tennessee  when  the  suit  was  ccwn- 
menced ;  and  he  has,  therefore,  wholly  failed  to  show  a  right  to  a 
homestead  exemption.  There  was  no  sufficient  ground  made  out  for 
a  new  trial.  If  the  appellant  had  evidence  to  take,  he  should  have 
asked  for  a  continuance  instead  of  waiting  until  a  judgment  was 
rendered,  and  then  moving  for  a  new  trial.  If  he  desired  to  rely 
upon  the  statute  of  limitations,  he  should  have  pleaded  it,  and  if  he 
could  not  plead  it  without  a  bill  of  i>articulars,  he  should  have  asked 
for  a  rule  to  compel  the  plaintiff  to  furnish  one. 

We  do  not  find  that  the  appellant  set  up  any  demands  against  the 
appellee,  and  there  was,  therefore,  none  to  be  credited  on  the  de- 
mand for  which  he  was  sued.  The  failure  to  execute  bond  for  costs 
at  the  time  of  commencing  the  suit  would  have  been  ground  for  dis- 
missing it ;  but  upon  the  appellant's  motion,  the  appellee  was  ruled 
to  give  bond,  and  did  so ;  and  no  motion  was  at  any  time  made  to 
dismiss  on  that  ground ;  and  it  is  too  late  to  raise  the  question  for 
the  first  time  in  this  court. 

The  appellant  having  been  served  with  process,  and  having  ap- 
peared in  the  action,  the  bond  mentioned  in  Subsec.  2,  Sec.  44, 


Aug.  Wehrley,  et  al.,  v.  R.  H.  Courtney,  Trustee,  et  al.      523 

Civil  Code,  was  not  required  to  be  executed.     Perceiving  no  error 
in  the  judgment  it  is  affirmed. 

John  C,  Walker,  W.  C.  Whitaker,  for  appellant. 
Clemmons,  Willis,  for  appellee. 


Aug.  Wehrley,  et  al.,  v.  R.  H.  Courtney,  Trustee,  et  al. 

Judicial  Sales  of  Real  Estate — Duty  of  Purchaser  to  Investigate  Title. 
Judicial  sales  of  real  estate  are  made  without  warranty,  and  It  is 
the  duty  of  a  purchaser  at  such  sales  to  investigate  the  title  before 
the  sale  is  confirmed,  and  where  he  fails  to  do  so  and  it  turns  out  that 
there  are  some  unpaid  taxes  due,  he  must  bear  the  consequences. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

October  27,  1875. 

Opinion  by  Judge  Peters  : 

At  a  judicial  sale  of  certain  lots  in  the  city  of  Louisville  on  the 
8th  of  June,  1874,  appellants  became  the  purchasers  thereof.  On 
the  I2th  of  June  the  marshal  made  his  report  of  the  sales  to  the 
court.  On  the  6th  of  July,  1874,  the  report  was  approved  and  con- 
firmed without  exception;  and  on  the  8th  day  of  the  last  named 
month,  deeds  were  executed  by  the  master,  acknowledged,  approved, 
and  ordered  to  be  certified  to  the  clerk  of  the  Jefferson  county  court 
for  record. 

Appellants  having  failed  to  pay  their  bonds  for  the  first  instalment 
of  purchase  money,  rules  were  awarded  against  each  of  them  and 
their  sureties  to  coerce  payment,  to  which  they  each  responded,  in 
substance,  that  said  sales  were  made  as  of  unincumbered  property ; 
that  the  attorney  of  the  plaintiff  in  the  suit  handed  them  printed  bills 
on  the  day  of  sale,  prepared  specially  for  the  occasion,  giving  par- 
ticulars concerning  the  property,  and  requesting  tliem  to  bid  on  the 
same ;  that  extra  efforts  were  made  by  the  parties  in  interest  to  make 
the  property  bring  its  full  value ;  that  it  did  not  appear  in  the  decree 
of  the  chancellor,  nor  in  the  advertisements  of  the  marshal  of  the 
sale,  nor  in  the  printed  bills  of  those  for  whose  benefit  the  sales  were 
to  be  made,  that  the  property  was  not  sold  as  unincumbered  prop- 
erty, and  that  they  understood,  and  did  believe  when  they  purchased 
that  they  were  to  get  an  unincumbered  fee  simple  title  to  the  lots ; 
but  that  since  they  purchased  they  had  discovered  that  there  were 


524  Kentucky  Opinions. 

a  large  amount  of  taxes  assessed  on  said  property  for  the  years 
1872  and  1873,  due  and  unpaid,  and  which  were  a  charge  on  the 
property  purchased  by  them,  amounting  to  near  or  quite  $1,000  in 
all,  which  they  were  compelled  to  pay  and  had  paid  to  the  proper 
collecting  officer;  and  they  asked  that  they  might  have  credits  for 
the  amounts  paid  by  each  on  their  respective  bonds  for  the  first  in- 
stalments, and  professed  to  be  willing  and  ready  to  pay  the  balance 
thereof,  and  perhaps  had  previously  paid  all  except  what  they  sought 
to  retain  for  the  taxes.  The  responses  were  adjudged  insufficient 
by  the  court,  and  the  rules  made  absolute,  and  that  judgment  they 
ask  this  court  to  reverse. 

It  is  not  stated  in  this  response  that  appellants  did  not  know  be- 
fore the  sales  to  them  were  confirmed,  that  the  property  purchased 
by  them  was  liable  for  the  unpaid  taxes  assessed  upon  it,  and  if  they 
did  not  know  it,  it  does  not  appear  that  tiiey  had  used  any  diligence, 
or  made  any  effort  from  the  date  of  their  purchases  to  the  time  of 
the  confirmation,  which  was  a  month,  to  ascertain  the  condition  of 
the  title.  They  knew,  or  must  be  treated  as  knowing,  that  judicial 
sales  are  made  witliout  warranty  of  title,  and  it  was  their  duty 
to  investigate  the  titles  and  the  condition  of  the  property  before  the 
sales  were  confirmed;  and  having  failed  to  do  so  they  must  bear 
the  consequences. 

The  action  of  the  court  in  confimiing  the  sales  is  a  final  judgment, 
from  which  an  appeal  will  lie,  and  concludes  the  rights  of  parties 
and  privies  until  it  is  vacated  or  reversed. 

Wherefore  the  judgment  is  affirmed. 

M.  A.  &  D,  A.  Sachs,  for  appellants, 
Byron  Bacon,  for  appellees. 


Mississippi  Central  R.  Co  v.  John  Davis. 

Railroad  Companj^— Eminent  Domain. 

The  statute  gives  jurisdiction  to  the  county  court  to  hear  excep- 
tions filed  to  the  award  of  commissioners  in  a  proceeding  by  a  rail- 
road company  to  appropriate  a  right  of  way  and  the  transfer  of  such 
a  cause  to  the  common  pleas  court  by  consent  of  both  parties  will  not 
give  such  probate  jurisdiction  to  hear  such  cause. 

Jurisdiction  of  Court — Eminent  Domain. 

The  statute  gives  the  county  court  exclusive  original  jurisdiction 
of  proceedings  by  a  railroad  company  to  appropriate  a  right  of  way 
and  no  other  court  can  exercise  any  such  original  Jurisdiction.  Orig- 
inal jurisdiction  cannot  be  given  by  consent  upon  a  court  having  only 
appellate  jurisdiction. 


Mississippi  Cent.  R.  Co.  v.  John  Davis.  525 

APPEAL.  FROM  HICKMAN  CIRCUIT  COURT. 

October  30,  1875. 

Opinion  by  Judge  Lindsay: 

The  charter  of  the  Mississippi  Central  Railroad  Company  pro- 
vides that  if  from  any  cause  the  company  shall  be  unable  to  pro- 
cure by  contract  the  necessary  right  of  way,  earth,  stone,  etc., 
wanted  for  the  construction  of  its  road,  the  county  court  of  the 
county  in  which  the  property  wanted  is  situated  shall  appoint  three 
commissioners  to  value  the  same,  and  makes  it  the  duty  of  said  com- 
missioners to  ascertain  the  compensation  to  be  paid  to  the  owner, 
and  to  report  the  same,  with  a  description  of  the  property,  to  the 
county  court.  Upon  the  filing  of  the  report  of  the  commissioners, 
it  is  made 'the  duty  of  the  clerk  to  issue  a  summons  against  the 
owners  to  show  cause  why  the  report  shall  not  be  confirmed ;  and  in 
case  either  the  company  or  the  owner  of  the  property  shall  except 
to  the  report,  a  jury  is  to  be  summoned,  and  the  questions  made  by 
the  exceptions  are  to  be  tried  in  the  county  court;  and  from  the 
judgment  rendered  in  the  case  either  party  may  have  an  appeal  or 
writ  of  error  to  the  circuit  court. 

Commissioners  were  appointed  by  the  Hickman  county  court  in 
accordance  with  the  act ;  and  having  reported  the  amount  of  com- 
pensation to  be  paid  by  the  company  to  the  appellee  for  the  right 
of  way  throug-h  his  land,  he  appeared  in  the  county  court  and  filed 
exceptions,  and  by  consent  of  the  parties  the  case  was  removed  to 
the  Hickman  court  of  common  pleas  without  a  trial  and  judgment 
in  the  county  court. 

A  trial  was  had  in  the  common  pleas  court,  and  a  verdict  and 
judgment  were  rendered  in  favor  of  the  appellee  for  nearly  five 
times  as  much  as  was  reported  by  the  commissioners,  and  from 
that  judgment  the  company  has  appealed. 

Counsel  for  the  appellant  insists  that  the  common  pleas  court  had 
no  jurisdiction  of  the  proceeding,  and  that  none  could  be  conferred 
by  the  consent  of  the  parties. 

The  act  creating  the  common  pleas  court  provides  that  it  "shall 
have  original  jurisdiction  of  all  civil  business  by  suits  at  law,  suits 
in  equity,  motion  or  otherwise,  and  in  all  other  matters  and  things 
of  which  the  circuit  courts  of  this  commonwealth  have  jurisdiction, 
except  that  said  court  shall  not  have  any  criminal  or  penal  juris- 
diction; said  court  shall  have  the  same  appellate  jurisdiction  that 
the  circuit  courts  of  the  commonwealth  have  in  civil  actions,  and 


526  Kentucky  Opinions. 

traverses  of  writs  of  forcible  entry  and  detainer/'  It  was  argued 
that  there  is  nothing  in  this  section  giving  the  common  pleas  court 
appellate  jurisdiction,  and  that  as  it  had  no  appellate  jurisdiction, 
no  jurisdiction  could  be  conferred  upon  it  by  consent. 

There  was  no  appeal  from  the  county  court,  and  we  need  not 
decide  whether  if  the  case  had  been  tried  in  the  countv  court,  an 
appeal  would  be  to  the  common  pleas  court.  The  charter  gives  tlie 
county  court  exclusive  original  jurisdiction  of  this  proceeding,  and 
therefore  neither  the  circuit  nor  the  common  pleas  court  could  have 
any  other  than  appellate  jurisdiction,  unless  original  jurisdiction 
can  be  conferred  by  the  consent  of  the  parties  upon  a  court  which 
has  by  law  only  appellate  jurisdiction.  That  this  cannot  be  done  is, 
we  think,  clear  upon  principle  and  authority.  When  a  court  has 
no  jurisdiction  of  the  subject  matter  of  the  action  or  proceeding, 
there  is  an  entire  absence  of  power  to  render  a  judgment;  and  as 
power  for  this  purpose  can  only  be  conferred  by  law,  the  express 
consent  of  parties  can  no  more  confer  jurisdiction  upon  a  court 
created  by  law,  than  such  consent  can  create  a  new  court.  Lindsey, 
ct  al.,  V.  McClelland,  i  Bibb  262;  Banks  z\  Fowler,  3  Litt.  332; 
Ormsby  v.  Lynch,  Litt.  Sel.  Cas.  303. 

It  is  true  these  cases  were  decided  with  reference  to  the  juris- 
diction of  the  general  court,  which  was  a  court  of  special  and  limited 
jurisdiction,  while  the  circuit  and  common  pleas  courts  are  courts 
of  general  jurisdiction.  But  in  proceedings  like  this,  the  jurisdiction 
of  the  circuit  court,  as  well  as  of  the  common  pleas  court  (if  the 
latter  has  any),  is  special  and  limited;  i.  e.,  it  is  appellate  only. 
That  original  jurisdiction  cannot  be  enforced  by  consent  upon  a 
court  having  only  appellate  jurisdiction  in  the  particular  case,  was 
in  effect  decided  in  Davis  i\  Datns,  10  Bush  274. 

As  the  common  pleas  court  had  no  jurisdiction,  it  is  unnecessary 
to  consider  other  questions  presented  in  argimient.  The  judgment 
is  reversed,  and  the  cause  remanded  with  directions  to  set  aside  the 
judgment,  and  to  remand  the  case  to  the  county  court. 

/.  M.  Bigger,  Steel  &  Steel,  for  appellant. 
E.  G,  Bullock,  for  appellee. 


J.  C.  Calhoun,  et  al.,  v.  Fowler  Lee  &  Co.  527 

J.  C.  Calhoun,  et  al.,  v.  Fowler  Lee  &  Co. 

County    Sheriff — Collection    of    Execution — Liability    of    Bondsmen — 
Pleading. 

A  petition  seeking  to  hold  a  sheriff  and  his  bondsmen  liable  for  the 
failure  of  such  officer  to  make  a  levy  pursuant  to  an  execution  in  his 
hands  is  fatally  defective  when  it  does  not  aver  that  the  debt  or  any 
part  of  it  has  been  lost  nor  any  allegation  that  plaintiff  has  sustained 
any  damages  by  reason  of  the  failure  of  the  sheriff  to  collect  the 
amount  of  the  execution. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

October  30,  1875. 

Opinion  by  Judge  Cofer: 

This  was  an  action  against  a  sheriff  and  his  sureties  to  recover 
damages  for  his  failure  to  collect  the  amount  of  an  execution  in  the 
name  of  the  appellee  against  J.  C.  Gentry  &  Co.,  which  was  placed 
in  his  hands  between  the  date  stated  in  the  teste  and  return  day  for 
collection. 

It  is  alleged  that  while  tlie  fi.  fa.  was  in  the  sheriff's  hands. 
Gentry  &  Co.  had  sufficient  property  in  the  county  known  to  the 
sheriff  subject  to  the  execution  to  satisfy  the  same;  yet  he  wrong- 
fully and  negligently  failed  to  make  the  amount  of  said  execution, 
01!  any  part  thereof,  and  returned  it  not  satisfied,  whereby  the 
plaintiffs  alleged  they  were  greatly  damaged;  and  they  prayed  for 
judgment  for  the  amount  of  the  execution.  An  answer  was  filed 
and  a  trial  had,  which  resulted  in  a  verdict  and  judgment  for  the 
amount  claimed ;  and  the  defendant's  motion  for  a  new  trial  having 
been  overruled,  they  have  appealed. 

The  petition  is  fatally  defective.  There  is  no  allegation  that  the 
debt  or  any  part  of  it  has  been  lost;  nor  is  there  any  statement  of 
facts  to  show  that  the  appellee  has  sustained  damages  in  conse- 
quence of  the  failure  of  the  sheriff  to  collect  the  amount  of  the 
execution. 

It  is  a  general  rule  that  such  damages  as  may  be  presumed  nec- 
essarily to  result  from  the  breach  of  contract  need  not  be  stated  with 
great  particularity  in  the  petition ;  but  if  the  damages  be  not  neces- 
sarily implied,  nor  the  extent  of  them,  it  will  be  requisite  for  the 
plaintiff  to  state  the  injury  particularly  in  order  to  apprise  the  de- 
fendant of  the  facts  intended  to  be  proved,  so  that  he  may  be  pre- 
pared to  meet  them.    Newman's   Pleading  and   Practice,  438;   i 


528  Kentucky  Opinions. 

Chitty  on  Pleadings  338;  Squier  v.  Gould,  14  Wend.  159;  Sedgwick 
on  the  Measure  of  Damages,  576. 

In  Commonwealth,  for  the  use  of  J.  C.  Cooper,  v,  Bartletfs  Ex'rs, 
7  J.  J.  Marsh.  161,  which  was  an  action  for  a  false  return,  this  court 
said :  "That  a  constable  is  liable  for  a  false  return,  will  not  be  ques- 
tioned; but  to  render  him  liable  on  that  account,  the  declaration 
should  state  the  nature  of  the  return  made,  and  then  charge  its 
falsity,  and  show  the  injury  resulting.  In  that  case,  as  in  this,  there 
was  an  allegation  of  a  technical  breach  of  the  bond ;  but  there  was  no 
allegation  to  show  the  injury  resulting  therefrom;  and  the  declara- 
tion was  held  to  be  fatally  defective  on  that,  as  well  as  upon  other 
grounds. 

These  authorities  show  that  the  petition  in  this  case  is  insufficient ; 
and  it  results,  therefore,-  that  the  court  erred  in  overruling  the 
motion  for  a  new  trial;  wherefore  the  judgment  is  reversed,  and 
the  cause  is  remanded  with  directions  to  allow  the  appellees  to 
amend  their  petition,  if  they  offer  to  do  so  within  a  reasonable  time. 

/.  M.  Bigger,  for  appellants, 

J.  Campbell,  L.  D.  Husbands,  for  appellee. 


John  Barret,  et  al.,  v,  John  Mossie. 

Landlord  and  Tenant — Lien  of  Landlord  on  Produce. 

A  landlord  has  a  lien  on  the  produce  raised  by  his  tenant,  and  a 
bona  fide  purchaser  of  such  produce  after  its  removal  from  the  leased 
premises  is  bound  to  take  notice,  at  his  peril,  of  the  existence  of  such 
lien. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

November  2,  1875. 

Opinion  by  Judge  Lindsay: 

The  General  Statutes,  Chap.  66,  Art.  2,  Sec.  13,  secures  to  a  land- 
lord "a  superior  lien  on  the  produce  of  the  farm  or  premises  rented, 
on  the  fixtures,  on  the  household  furniture,  and  other  personal  prop- 
erty of  the  tenant,  or  undertenant,  owned  by  him,  after  possession 
is  taken  under  the  lease;  but  such  lien  shall  not  be  for  more  than 
one  years  rent  due  or  to  become  due,  nor  for  any  rent  which  has 
been  due  for  more  than  one  hundred  and  twenty  days.  But  if  such 
property  be  removed  openly  from  the  leased  premises,  and  without 


John  Barret,  et  al.,  v,  John  Mossie.  529 

fraudulent  intent,  and  not  returned,  the  lien  of  the  landlord  shall 
be  lost  as  to  it,  unless  the  same  be  asserted  by  proper  procedure 
within  fifteen  days  from  the  day  of  the  removal."  There  is  no  ex- 
ception made  in  case  of  a  removal  of  the  incumbered  property  from 
the  leased  premises,  in  favor  of  a  bona  fide  purchaser,  as  was  the 
case  with  the  i6th  section  of  the  2d  article  of  the  56th  chapter  of 
the  Revised  Statutes. 

It  must  be  assumed  that  this  exception  was  purposely  omitted  from 
the  General  Statutes,  and  we  understand  the  law  as  it  now  exists  to 
require  even  a  bona  fide  purchaser  of  property  removed  from  the 
leased  premises  to  take  notice  at  his  peril  of  the  existence  of  the 
landlord  lien.  Such  being  the  law,  it  results  that  Barret  &  Co.  took 
title  to  the  tobacco  purchased  from  Hart,  subject  to  the  superior 
lien  of  the  landlord,  Markly. 

The  latter  asserted  his  lien  by  proper  procedure  within  fifteen 
days  from  the  time  the  tobacco  was  removed  from  the  leased  prem- 
ises. Barret  and  Co.  could  not  have  the  sheriff's  levy  quashed 
because  it  showed  that  the  ofiicer  was  uncertain  as  to  whether  he 
had  levied  on  the  tobacco  sold  by  the  tenant.  Hart.  Appellants  re- 
fused to  point  out  said  tobacco;  and  having  intermingled  it  with 
Klien's  own  property,  they  cannot  complain  that  the  officer  may  not 
have  been  able  to  identify  the  tobacco  seized  as  the  lot  delivered 
to  them  by  the  tenant  of  the  appellee.  A  landlord's  lien  cannot 
thus  be  defeated. 

The  proof  heard  by  the  circuit  court  authorized  the  judgment 
directing  the  sale  of  the  tobacco;  but  we  do  not  think  the  sheriff's 
return  on  the  order  of  sale,  to  the  eflFect  that  appellants  had  refused 
to  surrender  the  attached  property,  warranted  a  judgment  in  per- 
sonam against  them,  in  view  of  the  condition  of  the  pleadings  in 
the  case. 

This  return  may  furnish  the  basis  for  a  proceeding  against  appel- 
lants for  a  contempt  of  the  court,  or  it  may  be  regarded  as  evidence 
of  a  conversion  by  them  of  the  attached  property,  and  enable  the 
appellee,  by  amended  pleadings,  to  present  a  cause  of  action  in  his 
favor  against  them.  But  there  is  now  no  pleading  in  the  action  to 
support  the  judgment  appealed  from.  It  is,  therefore,  reversed,  and 
the  cause  is  remanded  for  further  proper  proceedings. 

Owen  &  Ellis,  for  appellants.     W,  N.  Sweeney,  for  appellee. 


34 


530  Kentucky  Opinions. 

David  W.  Barr  v.  James  Jenkins. 

Principal  and  Surety — ^Assignor — Diligence  of  Assignee. 

An  assignee  of  a  note  must  show  diligence  in  the  proceedings 
against  the  obligors  to  entitle  him  to  recover  against  his  assignor 
upon  a  return  of  no  property  on  the  execution  against  the  payors. 

Diligence  of  Assignee. 

Due  diligence  is  a  matter  of  law.  It  consists  in  pursuing  the  legal 
remedy  against  the  obligor  to  and  after  judgment  at  such  time  and 
in  such  manner  as  by  law  he  was  authorized  to  do. 

Diligence  of  Assignee. 

The  failure  to  sue  out  an  execution  on  the  judgment  for  eighteen 
days,  in  the  absence  of  any  excuse  offered  and  the  failure  to  deliver 
it  to  the  sheriff  for  four  days  after  its  issue,  does  not  show  that  degree 
of  diligence  required  to  hold  the  assignor. 

APPEAL.  FROM  HARDIN  CIRCUIT  COURT. 
November  10,  1875. 

Opinion  by  Judge  Peters  : 

This  action  was  brought  in  the  court  below  by  James  Jenkins 
against  David  W.  Barr,  his  assignor  of  a  note  on  Philip  Hargan 
and  others,  and  having  recovered  judgment  against  Barr,  he  has 
appealed  to  this  court. 

The  note  assigned  to  Jenkins  by  Barr  was  due  the  25th  of  Decem- 
ber, 1862,  and  the  first  circuit  court  for  Hardin  county,  where  the 
obligors  in  the  note  lived,  commenced  in  April,  1863.  After  the 
maturity  of  the  note,  suit  was  instituted  by  Jenkins,  and  the  sum- 
mons was  served  in  time  for  judgment  to  have  been  rendered  at  that 
term  of  the  court ;  but  on  account  of  the  disturbed  condition  of  the 
country,  and  the  presence,  or  rumored  approach  of  guerrillas,  the 
court  adjourned  before  the  case  was  reached,  and  it  was  continued 
to  the  next  term ;  and  at  that  term  judgment  was  rendered  on  the 
23d  of  Deceml)er,  1863.  An  execution  issued  thereon  on  the  12th 
of  January,  1864,  and  was  placed  in  the  hands  of  the  sheriff  four 
days  afterwards,  making  twenty  days  from  the  rendition  of  the 
judgment  to  the  suing  out  of  the  execution,  and  four  days  more 
until  it  reached  the  hands  of  the  sheriff. 

The  first  and  principal  question  to  be  decided  is,  Has  the  appellee 
shown  that  degree  of  diligence  in  the  proceedings  against  the 
obligors  in  the  note  to  entitle  him  to  recover  against  his  assignor, 
upon  a  return  of  no  property  on  the  execution  against  the  payors  ? 


Webster  County  Court  v.  James  H.  Yates.  531 

The  law  required  that  in  order  to  charge  his  assignor,  the  as- 
signee must  use  ordinary  diligence  to  collect  the  debt  from  the 
obligor ;  and  in  Bard  v.  McElroy's  AdnCr,  6  B.  Mon.  416,  ordinary 
diligence  in  its  lowest  degree  is  defined  to  consist  in  pursuing  the 
legal  remedy  against  the  obligor  to,  and  after  judgment,  at  such 
time  and  in  such  manner  as  by  law  he  was  autliorized  to  do,  with- 
out resorting  to  any  extraordinary  means  of  expediting  it.  In  that 
case  a  failure  to  sue  out  an  execution  by  the  assignee  for  seventeen 
days,  or  for  seven  days  after  it  might  have  issued  on  the  judgment, 
without  any  excuse  for  the  delay,  was  held  to  be  such  a  want  of 
diligence  as  discharged  the  assignor  from  liability  to  the  assignee. 

In  Sayre  v,  Bayless,  i  B.  Mon.  304,  it  was  held  that  judgment 
having  been  rendered  on  the  3d  of  July,  1839,  an  execution  issued 
on  the  fifteenth,  and  not  placed  in  the  officer's  hands  until  the  22d 
of  the  same  month,  with  a  tardiness  manifested  in  prosecuting  the 
suit  to  judgment,  exonerated  the  assignor  from  responsibility  to  his 
assignee.  It  is  said  in  the  opinion  that  the  assignee  should  not  only 
use  due  diligence  in  the  commencement  of  the  suit,  but  also  in  fol- 
lowing up  and  prosecuting  the  same  to  a  final  termination,  and  tlien 
in  suing  out  execution  thereon. 

The  failure  to  sue  out  the  execution  on  the  judgment  rendered 
on  the  23d  of  December  till  the  12th  of  January  is  unaccounted  for; 
it  was  not  within  that  time  demanded ;  the  clerk  says  the  costs  could 
have  been  taxed  in  ten  minutes,  and  in  ten  minutes  more  the  execution 
could  have  been  issued ;  and  there  is  no  reason  shown,  or  excuse  of- 
fered for  the  failure  to  sue  out  the  execution  when  it  was  due.  Nor 
is  the  failure  to  place  the  execution  in  the  hands  of  the  officer  for 
four  days  after  it  issued  sufficiently  accounted  for. 

Due  diligence  is  a  question  of  law,  and  upon  the  facts  of  this  case 
we  are  constrained  to  the  conclusion  that  appellee  has  not  manifested 
such  diligence  as  entitled  him  to  recover  of  his  assignor.  Where- 
fore the  judgment  is  reversed  and  the  cause  remanded  to  dismi§s 
the  petition. 

R.  D.  Murray,  for  appellant. 


Webster  County  Court  v,  James  H.  Yates. 
.     Same  v.  S.  B.  Wallace,  et  al. 

County  Bridges — ^Appropriation — Contract. 

Where  $2,000.00  was  appropriated  by  the  county  court  to  build  a 
bridge,  the  commissioners  under  such  order  had  no  power  to  bind  the 
county  to  pay  more  than  the  sum  appropriated. 


532  Kentucky  Opinions. 

APPEAL  FROM  WEBSTER  CIRCUIT  COURT. 

November  12,  1875. 

Opinion  by  Judge  Pryor: 

No  exceptions  seem  to  have  been  taken  to  the  mode  of  prose- 
cuting the  appeal  to  the  circuit  court,  or  at  least,  the  bill  of  evidence 
does  not  show  that  it  was  the  same  heard  in  the  county  court.  The 
case  will,  therefore,  be  considered  as  if  tried  de  novo  in  the  circuit 
court.  The  expenditure  authorized  to  be  made  by  the  commissioner 
under  the  order  of  the  county  court  for  the  construction  of  the 
bridge  was  $2,000.  A  contract  was  made  by  them  with  James 
Yates,  by  which  he  agreed  to  build  the  bridge  for  the  amount  appro- 
priated by  the  county  court.  This  contract  was  reported  to  the 
court,  and  terminated  all  the  authority  conferred  upon  the  commis- 
sioner by  the  order  making  the  appropriation.  It  seems  that  the 
entire  work  upon  the  bridge  was  done  at  the  instance  of  the  com- 
missioner, for  the  reason  that  the  specifications  for  the  structure, 
and  upon  which  the  contract  was  based,  were  not  such  as  would 
have  resulted  in  the  erection  of  a  safe  and  substantial  bridge.  It 
appears,  however,  from  the  testimony  of  some  of  the  witnesses,  that 
a  safe  bridge  could  have  been  built  for  the  amotmt  of  the  appropria- 
tion, and  by  the  special  finding  of  the  jury  that  the  cost  of  the  bridge 
as  built  ought  not  to  have  exceeded  $2,000. 

It  is  unnecessary,  however,  to  discuss  the  effect  of  this  testimony, 
or  to  determine  what  should  have  been  the  action  of  the  court  below 
upon  this  special  finding.  The  commissioner  had  no  right  to  go 
beyond  the  limit  fixed  by  the  order  under  which  they  acted  in  mak- 
ing the  contract,  and  any  agreement  or  direction  by  which  extra 
work  was  done,  increasing  the  sum  beyond  $2,000  was  unauthorized 
and  not  binding  on  the  county  court.  These  commissioners  were 
made  special  agents  by  the  court  to  enter  into  a  contract  with  par- 
ties who  would  build  this  bridge  for  $2,000,  and  when  it  was  ascer- 
tained that  the  sum  appropriated  was  not  sufficient  for  that  purpose, 
an  application  should  have  been  made  to  the  county  court  to  increase 
the  appropriation  and  authorize  the  extra  work.  The  county  judge 
would  no  doubt  have  convened  the  magistrates  of  the  county  and 
at  a  special  term  the  appropriation  could  have  been  made.  These 
magistrates,  when  thus  assembled,  are  the  financial  agents  of  the 
county  and  authorized  to  make  such  expenditures  (when  the  sum 
to  be  expended  exceeds  fifty  dollars)  as  may  be  required  to  make 
these  county  improvements.    The  commissioners  in  this  case  under- 


R.  Stafford,  et  al.,  v,  T.  J.  Campbell,  et  al.  533 

took  the  exercise  of  a  power  that  belonged  exclusively  to  the  court 
of  claims,  and  their  action  in  the  premises  cannot  bind  that  body,  or 
raise  an  implied  promise  on  the  part  of  the  county  or  those  repre- 
senting it  to  pay  for  this  extra  work. 

In  the  case  of  the  Harrison  County  Court  z/.  Smith's  Adm'r,  15 
B.  Mon.  155,  it  was  held  that  where  the  county  judge  had  ordered 
an  improvement  to  be  made,  th^  county  court  composed  of  the 
justices  were  not  bound  by  this  order  to  pay  for  the  jail,  for  the 
reason  that  the  county  judge  had  no  power  to  create  the  debt;  and 
that  in  making  such  appropriations  the  justices  of  the  peace  shall 
compose  a  part  of  the  county  court,  and  with  the  same  organization 
required  to  lay  the  county  levy  and  to  transact  the  financial  business 
of  the  county.  If  the  county  judge  has  no  such  power,  it  cannot  be 
claimed  that  these  commissioners  were  clothed  with  any  greater 
s^uthority.  The  judgments  of  the  court  below  in  favor  of  both  the 
appellees,  Yates  and  Oglesby,  are  rez'crsed  and  the  cause  remanded 
with  directions  to  dismiss  the  appeal. 

Hughes  Cook,  Bailey,  for  appellant. 

r.  M.  Baker,  M.  C.  Givens,  for  appellees. 


R.  Stafford,  et  al.,  v.  T.  J.  Campbell,  et  al. 

Replevin  Bond — Release  of  Surety. 

Where  there  is  no  execution  on  a  replevin  bond  for  more  than  four- 
teen months  the  surety  will  be  released. 

Waiver. 

Where  it  is  sought  to  hold  a  surety  where  execution  has  not  issued 
for  more  than  a  year  on  a  replevin  bond,  because  the  surety  consented 
and  procured  indulgence  from  the  plaintifF,  the  evidence  must  clearly 
show  the  consent  by  the  surety. 

Judicial  Sales  of  Real  Estate. 

An  execution  under  which  a  levy  and  sale  of  real  estate  is  made  is 
void  for  uncertainty  where  the  sheriffs  return  on  the  execution  shows 
that  he  "levied  on  1,500  acres  of  land  given  up  by  John  Stafford." 
Land  so  described  cannot  be  identified  and  a  levy  and  sale  thereunder 
is  void. 

APPEAL  FROM  JOHNSON  CIRCUIT  COURT. 

November  12,  1875. 

Opinion  by  Judge  Lindsay  : 

The  answer  of  appellees  is,  in  effect,  a  cross-petition,  in  which 


534  Kentucky  Opinions. 

they  set  up  the  fact  that  John  Stafford  was,  at  the  time  of  the  in- 
stitution of  the  action,  the  holder  of  the  legal  title,  and  in  the  actual 
possession  of  the  land  in  controversy;  and  they  seek,  by  way  of 
relief,  to  have  his  title  and  possession  quieted.  They  pray  that  the 
cause  be  transferred  to  the  equity  side  of  the  docket.  The  reply 
to  the  cross-petition  distinctly  recognizes  the  change  in  the  char- 
acter of  the  proceeding  wrought  by  the  filing  of  appellant's  pleading; 
and  from  that  time  forward,  the  parties  all  ti'eated  the  action  as  a 
suit  in  equity,  as  it  was  proper  they  should  do. 

Appellees  claim  under  an  execution  sale;  their  claim  necessarily 
concedes  that  John  Stafford  held  the  legal  title  to  the  land.  The 
proof  shows  that  there  were  parties  upon  and  in  possession  of  the 
land,  claiming  to  hold  under  Stafford.  This  fact,  however,  need  not 
have  been  proved,  as  it  is  set  up  in  the  petition,  and  relied  on  by  ap- 
pellees as  a  ground  for  relief. 

If  the  levy  and  sale  under  the  execution  were  void,  then  appel- 
lees should  have  failed  in  their  action,  and  appellants  should  have 
had  relief  upon  their  cross-petition. 

It  is  conceded  that  John  Stafford  was  a  surety  on  a  replevin  bond. 
The  record  shows  that  at  one  time  there  was  no  execution  on  said 
bond  for  more  than  fourteen  and  one-half  months.  By  operation  of 
law,  this  delay  relieved  Stafford  from  the  obligation  of  the  bond. 
Appellees  attempt  to  show  that  this  delay,  in  the  prosecution  of 
their  claim,  was  had  at  the  instance  and  request,  and  upon  written 
agreement  to  Stafford  to  remain  bound. 

The  only  evidence  tending  to  support  this  hypothesis  is  the  state- 
ment of  James  M.  Rice,  to  the  effect  that  James  Franklin,  a  prin- 
cipal in  the  replevin  bond,  "procured  witness  to  visit  Prestonsburg 
for  the  purpose  of  procuring  indulgence  on  the  replevin  bond,  which 
indulgence  was  given,  but  only  upon  conditions  of  the  written  con- 
sent of  the  securities,  which  consent  was  given  in  the  latter  part  of 
spring  or  early  summer  of  1839,  and  was  filed  with  the  fi.  fa.  which 
the  sheriff  then  had  in  his  hands  and  returned  to  the  clerk's  office  of 
the  Floyd  circuit  court. 

It  is  to  be  inferred  from  what  the  witness  says,  that  the  consent 
was  in  writing;  such  being  the  case,  the  writing  should  have  been 
produced.  If  it  is  lost,  and  we  may  presume  it  is,  then  appellees 
should  have  proved  its  contents.  This  they  do  not  attempt  to  do. 
Rice  does  not  pretend  to  tell  what  the  conditions  of  the  writing 
were.  He  does  not  intimate  the  extent  of  the  indulgence  desired  by 
Franklin,  nor  the  length  of  time  the  plaintiff  in  the  judgment  agreed 


R.  Stafford,  et  al.,  v.  T.  J.  Campbell,  et  al.  535 

to  indulge,  nor  the  character  of  indulgence  the  securities  agreed  in 
the  writing  should  be  extended.  As  the  statute  gives  to  sureties  in  re- 
plevin bonds  an  absolute  discharge  from  all  liability  upon  such  bonds 
where  the  creditor  fails  for  a  year  to  sue  out  execution  with  a  view 
to  .the  collection  of  his  debt,  the  consent  upon  their  part  to  delay, 
should  not  be  construed  to  deprive  them  of  the  right  to  avail  them- 
selves of  this  statutory  right,  unless  it  appears  expressly,  or  by  im- 
plication, that  they  agreed  to  waive  it,  or  assented  to  a  suspension 
of  proceedings  for  more  than  a  year.  McCauley  v.  Offutt,  12  B. 
Mon.  386. 

This  doctrine  is  recognized  in  the  subsequent  cases  of  Furber  v. 
Basset,  2  Duv.  433,  and  Prather  v,  Harlan  &  Thompson's  Admr,, 
6  Bush  185.  Those  cases  were  taken  out  of  the  operation  by  the 
contemporaneous  facts  attending  them,  but  the  doctrine  itself  was 
not  sustained.  The  court  below  should  have  held  that  the  execution 
under  which  the  levy  and  sale  were  made  was  void. 

In  addition,  the  levy  and  the  sheriff's  return  are  void  for  uncer- 
tainty. The  sheriflF  indorsed  on  the  execution  that  he  "levied  on 
1,500  acres  of  land  given  up  by  John  Stafford,  to  be  sold  at  the 
court  house  door  in  Prestonsburg,  on  the  13th  day  instant,  it  being 
county  court  day,  December  2,  1841." 

November  21,  1842,  another  sheriff,  the  successor  to  the  sheriff 
who  made  the  levy,  returns  on  a  writ  of  venditioni  exponas.  "The 
land  taken  on  former  fi.  fa.  was  offered  for  sale  at  the  court  house 
door  in  Prestonsburg,  and  sold  for  $25  *  *  *  and  James  M. 
Rice,  plaintiff's  attorney,  being  the  highest  bidder,  became  the  pur- 
chaser." 

If  these  two  returns  be  made  the  foundation,  it  is  evident  that 
the  land  seized  and  sold  cannot  be  identified  by  oral  proof,  unless 
the  witnesses  are  allowed  to  speak  from  personal  knowledge  or  in- 
formation wholly  disconnected  from  and  independent  of  any  fact 
set  out  by  the  sheriffs. 

In  order  to  support  execution  sales,  and  to  protect  purchasers  at 
such  sales,  the  returns  of  officers  have  always  received  the  most 
liberal  construction.  But  in  no  case  has  a  return  been  held  good, 
unless  it  stated  some  fact,  with  the  aid  of  which  the  court  might, 
upcm  proof  of  extraneous  facts,  locate  the  land,  and  determine,  with 
reasonable  certainty  that  it  was  the  identical  land  sold. 

In  this  case  the  officers  do  not  refer  to  the  patent  under  which 
the  land  was  originally  claimed,  nor  as  to  what  lands  the  tract 
levied  on  and  sold  adjoins,  nor  the  person  or  persons,  if  any,  who 


536  Kentucky  Opinions. 

then  lived  on  the  land,  nor  the  watercourse  or  watercourses  upon 
which  it  lies,  nor  the  county  or  even  the  state  in  which  it  is  situated. 

When  in  1852  (ten  years  after  the  sale)  the  deputy  sheriff  exe- 
cuted the  conveyance,  it  is  evident  he  must  have  relied  on  his  per- 
sonal recollection  of  the  transaction.  He  certainly  received  no  in- 
formation from  the  returns  on  the  execution.  If  he  and  all  others 
having  personal  knowledge  of  the  levy  and  sale  had  been  dead  in 
1852,  it  is  manifest  that  appellants  could  not  then  have  obtained 
title,  either  from  the  sheriff  then  in  office,  nor  from  a  court  acting 
upon  legal  and  competent  testimony. 

To  uphold  the  sale  and  conveyance  in  this  case,  would  be  practi- 
cally to  determine  that  written  returns  by  sheriffs  in  sales  of  land 
under  execution  are  not  important,  but  that  the  whole  matter  may 
be  left  to  repose  in  the  recollection  of  persons  connected  with  or 
cognizant  of  the  facts  attending  each  sale. 

We  need  not  notice  the  remaining  questions  raised  by  the  appel- 
lants. For  the  reasons  indicated,  the  court  should  have  dismissed 
appellees'  petition,  and  adjudged  that  they  had  no  claim  to  the  land, 
and  have  quieted  the  title  and  possession  of  appellants  so  far  as  said 
claim  of  appellees  is  concerned. 

The  judgment  is  reversed  and  the  cause  remanded  for  a  judgment 
conformable  to  this  opinion. 

/.  R,  Bofts,  for  appellants,  Apperson  &  Reid,  for  appellees. 


James  W.  Milner  and  Wife  i\  James  Hatfield,  et  al. 

Bond  for  Costs — Non-resident  Plaintiffs. 

Non-residents  who  are  plaintiffs  are  required  to  give  bond  for  oosts^ 
but  where  there  are  two  persons  who  are  plaintiffs,  one  a  non-resident 
and  one  a  resident,  no  bond  can  be  required  from  the  non-resident. 

APPEAL  FROM  McLBAN  CIRCUIT  COURT. 

November  13,  1875. 

Opinion  by  Judge  Peters  : 

There  were  tvvo  plaintiffs  to  the  action,  and  but  one  of  them  a 
non-resident,  according  to  the  facts  stated  in  the  affidavit  filed.  The 
language  of  the  statute  is  when  a  non-resident  or  any  corporation 
shall  institute  an  action  in  any  court,  whether  suing  in  his  own 
right,  or  as  the  representative  of  another,  he  shall,  before  the  com- 


B.  W.  Broamjus,  et  al.,  v.  Jas.  D.  Easter.  537 

mencement  thereof,  give  bond,  evidently  meaning  that  when  the 
non-resident  is  the  only  plaintiff  in  the  action,  he  shall  g^ve  bond 
with  surety  resident  in  this  case,  etc.  But  when  there  are  two  plain- 
tiffs, and  one  of  them  is  a  resident  of  the  state,  neither  the  letter  nor 
spirit  of  the  statute  requires  a  bond  for  cost  to  be  executed.  And 
perceiving  no  error  in  the  judgment  the  same  is  affirmed, 

/.  C.  Jonson,  for  appellants,  Owen  &  Ellis,  for  appellees. 


B.  W.  Broaddus,  et  al.,  v.  Jas.  D.  Easter. 

Partition  Fence — Maintenance  Agreement. 

A  verbal  agreement  by  adjoining  landowners  to  each  maintain  a 
designated  portion  of  a  partition  fence  does  not  run  with  the  land 
and  is  not  binding  on  the  grantees  of  either  of  the  parties  to  such 
agreement. 

Agreement. 

An  agreement  between  the  owners  of  adjacent  lands  for  erecting 
and  keeping  up  a  division  fence,  only  runs  with  the  land,  when  reduced 
to  writing  and  signed,  acknowledged  and  recorded  as  prescribed  by 
the  statutes. 

APPEAL  FROM  ESTILL  CIRCUIT  COURT. 
November  18,  1875. 

Opinion  by  Judge  Cofer  : 

Neither  the  pleadings  nor  the  evidence  disclose  any  contract  or 
agreement  in  reference  to  the  alleged  division  fence,  sufficient  to 
render  the  appellants  liable  under  Sees,  i  and  2,  Art.  3,  Chap.  55, 
General  Statutes. 

The  agreement  set  up  in  the  petition  is  alleged  to  have  been  made 
between  Jesse  Benton,  who  owned  the  farm  where  the  plaintiff  liow 
lives,  and  Beverly  Broaddus,  or  Edward  J.  Broaddus,  the  father 
of  the  defendants,  who  owned  the  land  where  the  defendants  now 
live. 

The  defendants  deny  that  any  such  agreement  had  ever  been 
made,  and  the  only  evidence  offered  to  prove  its  existence  was  that 
many  years  ago,  in  the  lifetime  of  Jesse  Benton,  under  whom  plain- 
tiffs claim,  and  in  the  lifetime  of  Edward  Broaddus,  under  whom 
defendants  claim,  a  conversation  was  had  in  the  spring  of  1853,  be- 
tween said  Benton  and  Broaddus,  in  which  they  agreed  that  the 


538  Kentucky  Opinions. 

division  fence  between  their  land  was  right.  There  was  no  agree- 
ment made  between  said  Benton  and  Broaddus;  but  they  spoke  of 
an  agreement  between  Beverly  Broaddus  and  Jesse  Benton  made 
before  that  time,  and  said  said  agreement  was  right.  It  also  appeared 
that  each  party  had  kept  up  his  part  of  the  fence  since  that  time. 

The  defendants  excepted  to  this  evidence,  and  it  should  have 
been  excluded.  Such  an  agreement  did  not  run  with  the  land ;  and 
as  there  was  no  evidence  that  the  defendant  had  any  notice  of  it, 
and  had  acted  with  reference  to  the  agreement,  from  which  arose 
an  agreement  on  their  part  to  adopt  the  contract  between  Benton 
and  Beverly  Broaddus  as  an  agreement  between  themselves  and  the 
plaintiff,  the  court  should  have  instructed  the  jury  to  find  for  the 
defendants  as  requested  in  their  fifth  instruction. 

An  agreement  between  the  owners  of  adjacent  lands  for  erecting 
and  keeping  up  a  division  fence  does  not  run  with  the  land,  unless 
reduced  to  writing  and  signed  and  acknowledged,  or  proved  and 
recorded  as  prescribed  in  Sec.  i.  Art.  3. 

Wherefore  the  judgment  is  reversed,  and  the  cause  is  remanded 
for  a  new  trial  upon  principles  not  inconsistent  with  this  opinion. 

//.  C.  Lilly,  /.  B.  White,  for  appellants. 


Hiram  Lunsford  and  Wife  v,  Lewis  Stamper,  et  al. 

Wills — Indebtedness. 

The  indebtedness  of  a  person  does  not  prevent  him  from  disposing 
of  his  property  by  will,  but  his  devisees  take  their  interests  subject 
to  the  payment  of  the  testator's  debts. 

Suits  by  Creditors. 

Creditors  cannot  reach  and  dispose  of  the  interests  of  devisees  by  a 
judicial  proceeding  to  which  such  devisees  were  not  parties. 

APPEAL  FROM  LEE  CIRCUIT  COURT. 

November  19,  1875. 

Opinion  by  Judge  Lindsay  : 

Notwithstanding  Jameson  Irvine  may  have  been  in  debt  at  and 
before  the  time  of  his  death,  he  had  the  right,  under  the  statute, 
to  dispose  of  his  estate  by  last  will  and  testament.  His  devisees  took 
their  respective  interests,  it  is  true,  subject  to  the  payment  of  the 
testator's  debts ;  but  his  will  having  been  duly  published,  and  regu- 


Turner  &  Gudgel  v.  Licking  River,  etc.,  Mining  Co.     539 

larly  and  legally  put  to  record,  they  each  took  under  it  the  title 
devised ;  and  the  creditors  could  not  reach  and  dispose  of  the  inter- 
est of  either  of  them  by  a  judicial  proceeding  to  which  he  or  she 
was  not  made  a  party. 

Davis  Irvine  took  no  more  than  a  life  estate  in  the  realty  devised 
to  him.  The  remainder  was  devised  to  the  present  appellant  Mrs. 
Nancy  Lunsford,  his  infant  child.  She  was  not  made  a  party  de- 
fendant to  either  the  action  of  Bowman  or  that  of  Park,  the  executor 
of  Monegal.  Hence  the  judgments  in  their  favor  and  against  the 
executors  of  the  testator  and  his  children,  could  not  affect  her  title 
as  devisee. 

The  executions  to  be  issued  on  these  judgments  were  directed  to 
be  levied,  first  of  assets  in  the  hands  of  the  executors,  and  then  of 
estate  that  had  descended  from  the  deceased  debtor  to  his  children 
named  therein.  Nothing  descended  to  Mrs.  Lunsford.  She  took 
under  the  will,  and  as  we  have  already  said,  she  was  not  a  party  to 
the  action  in  which  the  judgments  were  rendered.  The  execution 
sales  passed  to  the  purchaser  merely  the  life  estate  of  her  father. 
He  purchased  back  no  greater  interest,  and  sold  nothing  more  to 
his  vendee.  It  does  not  matter  that  he  attempted  to  sell  and  convey 
the  fee.  He  had  no  right  to  sell  any  such  estate;  and  he  could  not 
prejudice  the  legal  right  of  the  infant  remainderman  by  attempting 
to  sell  it.  His  vendees,  whether  immediate  or  remote,  are  charged 
with  notice  of  the  title  of  Mrs.  Lunsford.  It  was  matter  of  record, 
and  the  regularly  probated  will  of  Jameson  Irvine  was  notice  to  the 
world. 

The  statute  of  limitation  interposes  no  obstacle  to  the  action  of 
Mrs.  Lunsford.  She  was  not  entitled  to  the  possession  of  the  lands 
sued  for  until  the  death  of  her  father,  the  life  tenant,  and  he  did 
not  die  until  1872. 

Judgment  reversed  and  cause  remanded  for  a  judgment  in  favor 
of  the  appellants  for  the  possession  of  their  lands.  In  order  to  de- 
termine the  questions  of  rents  and  improvements,  the  parties  should 
be  allowed,  in  case  they  so  desire,  to  take  further  proof. 

A,  W.  Turinn,  for  appellants,  H.  C.  Lilly,  for  appellees. 


Turner  &  Gudgel  v.  Licking  River  Lumber  &  Mining  Co. 

Navigable  Streams — Right  to  Use. 

A  person  has  a  right  to  use  a  navigable  stream  to  float  his  logs  in 
and  he  is  not  liable  for  injury  to  others  in  doing  so  where  he  is  not 
guilty  of  negligence  or  carelessness. 


540  Kentucky  Opinions. 

appeal  from  morgan  circuit  court. 

Noyember  23,  1875. 

Opinion  by  Judge  Cofer: 

The  appellants'  petition  is  fatally  defective,  and  the  appellee's  de- 
murrer thereto  should  have  been  sustained.  Licking  River,  being  a 
navigable  stream,  the  appellee  had  a  right,  independent  of  the  char- 
ter of  the  corporation,  to  use  it  for  floating  its  logs  to  such  point 
as  it  might  desire,  and  could  only  be  made  liable  for  injuries  to 
others,  shown  to  have  resulted  from  its  careless  or  negligent  use  of 
the  common  right  to  use  the  river  for  purposes  of  navigation. 

It  is  neither  alleged  in  general  terms  that  it  was  guilty  of  negli- 
gence or  carelessness,  nor  are  any  facts  alleged  from  which  either 
is  necessarily  to  be  inferred.  Nor  does  it  appear  that  the  injuries 
complained  of  by  the  appellants  resulted  from  any  wrongful  act  or 
omission  of  the  appellee.  It  is  true  they  say  that  by  reason  of  the 
wrongful  acts  of  the  defendant,  one  boat  and  its  cargo  was  dam- 
aged to  the  amount  of  $780,  and  that  another  boat  was  sunk,  and 
they  were  thereby  damaged  the  sum  of  $800 ;  but  they  state  no  facts 
which  show  any  connection  between  any  wrongful  act  of  the  appel- 
lee and  the  injuries  of  which  they  complain.  Whether  the  logs  were 
against  appellants'  boats,  or  the  boats  ran  against  the  logs  and  were 
injured,  or  whether  the  logs  blocked  up  the  channel  of  the  river  so 
that  the  boats  could  not  pass,  or  whether  the  injury  happened  in 
some  other  way,  is  not  stated. 

The  petition  being  insufficient  to  support  a  verdict  for  the  appel- 
lants, if  one  had  been  rendered  in  their  favor,  it  is  unnecessary  to 
consider  any  other  question.   Judgment  affirmed, 

Jno,  T,  Haselrigg,  J.  E,  Cooper,  for  appellants. 
J,  G.  Carlisle,  for  appellee. 


Samuel  May,  et  al.,  v.  A.  P.  Lacy. 

Attorney  and  Client — Appeals. 

An  attorney  at  law  does  not,  by  virtue  of  his  employment  to  con- 
duct the  prosecution  or  defense  of  an  action  In  the  circuit  court,  have 
the  right  to  prosecute  an  appeal  to  the  Court  of  Appeals. 


Wm.  Blackerter  V,  Commonwealth.  541 

APPEAL,  FROM  WOLFE  CIRCUIT  COURT. 
November  24,  1875. 

Opinion  by  Judge  Lindsay  : 

An  attorney  at  law  does  not,  in  virtue  of  his  mere  employment  to 
conduct,  or  to  assist  in  conducting  the  prosecution  or  defense  of  an 
action  in  the  circuit  or  other  inferior  court,  have  the  right  to  prose- 
cute an  appeal  from  the  judgment  therein  to  this  court. 

The  appellants  here  swear  that  they  did  not  authorize  either  of 
their  attorneys  to  procure  a  copy  of  the  record,  in  the  cases  of  Sam- 
uel May,  et  al,,  v.  James  Eaton,  et  aL,  for  the  purpose  of  prosecuting 
an  appeal  to  this  court.  In  this  regard  they  are  not  contradicted  by 
any  one.  Hazelrigg  swears  that  he  did  not  order  the  transcript.  In 
this  he  is  contradicted  by  Lacy  and  other  witnesses.  But  there  is  no 
proof  whatever  tending  to  show  that  he  had  any  authority  in  the 
premises.  The  payment  of  the  $5  to  Hensley  is  explained  by  May, 
and  both  May  and  Hazelrigg  show  that  they  then  denied  his  lia- 
bility to  pay  the  fee  bill  herein  sought  to  be  enjoined. 

As  Hazelrigg  had  no  right  or  power,  express  or  implied,  to  bind 
appellants  by  his  supposed  order  to  the  clerk,  and  as  appellee's  right 
to  collect  the  fee  bill  rests  solely  upon  the  alleged  action  of  Hazel- 
rigg, it  seems  to  us  clear  that  the  temporary  injunction  should  have 
been  made  perpetual. 

Judgment  reversed  and  cause  remanded  for  a  judgment  conform- 
able to  this  opinion. 

William  L.  Hurst,  for  appellants,    Rodman,  for  appellee. 


Wm.  Blackerter  v.  Commonwealth. 

Criminal  Law — Indictment. 

While  only  one  offense  may  be  charged  In  an  Indictment,  the  mode 
and  means  of  committing  that  offense  may  be  stated  in  the  alterna- 
tive. 

Appeals. 

The  court  of  appeals  has  no  power  to  reverse  a  judgment  of  con- 
viction on  indictments  for  an  error  In  overruling  a  demurrer. 


542  Kentucky  Opinions. 

APPEAL  FROM  WASHINGTON  CIRCUIT  COURT. 

NoTember  26,  1875. 

Opinion  by  Judge  Pryor  : 

Each  count  in  the  indictment  charges  a  pubHc  offense.  Sec.  271 
of  the  Criminal  Code  provides  that  "The  only  ground  upon  which 
a  judgment  shall  be  arrested  is  that  the  facts  stated  in  the  indictment 
do  not  constitute  a  public  offense  within  the  jurisdiction  of  the 
court."  The  motion  to  arrest  the  judgment  was,  therefore,  prop- 
erly overruled.  Sec.  125,  Criminal  Code,  provides  that  "An  in- 
dictment, except  in  the  cases  mentioned  in  Sec.  126,  must  charge 
but  one  offense ;  but  the  mode  and  means  of  committing  that  offense 
may  be  stated  in  the  alternative."  The  counts  united  in  this  indict- 
ment are  not  embraced  within  the  exceptions,  nor  are  they  such 
offenses  as  can  be  joined  in  an  indictment  as  provided  by  Sec.  126. 

By  Sec.  164,  a  demurrer  is  proper  when  more  than  one  offense 
is  charged  in  the  indictment,  except  as  provided  in  Sec.  126.  This 
objection  by  demurrer  may,  however,  be  avoided  by  dismissing  one 
of  the  counts  of  the  indictment  as  provided  by  Sec.  168.  Although 
the  attorney  for  the  commonwealth  failed  to  dismiss  either  count, 
still  this  court  has  no  power  to  reverse  a  judgment  of  conviction  on 
indictments  for  felonious  acts  or  misdemeanors  for  an  error  in  over- 
ruling a  demurrer.   Sees.  334  and  348,  Criminal  Code. 

The  instructions  were  more  favorable  to  the  appellant  than  the 
commonwealth.  The  jury  was  told  that  Mobley  must  have  been 
guilty  of  the  malicious  stabbing,  and  that  the  appellant  was  present, 
aiding  and  abetting  in  the  commission  of  the  offense,  before  they 
would  find  him  guilty.  They  were  also  told  that  the  accused  had  the 
right  to  interfere  to  preserve  the  peace  and  to  prevent  the  commis- 
sion of  a  felony;  and  if  the  party  stabbed  was  about  to  commit  a 
felony  by  taking  the  life  of  Mobley  without  cause,  the  accused  had 
the  right  to  use  such  means  as  was  necessary  to  prevent  it.  Upon 
the  facts,  we  are  inclined  to  the  opinion  that  this  last  instruction 
should  not  have  been  given;  and  therefore  the  appellant •  cannot 
complain. 

The  judgment  is  affirmed. 

Russell  &  Averitt,  for  appellant.     Thomas  E.  Moss,  for  appellee. 


Jas.  Sparks  v,  Chas.  Hemphill.  543 

Jas.  Sparks  v.  Chas.  Hemphill. 

Contracts — ^Assignment  of  Contracts  to  Furnish  Board. 

A  contract  to  pay  board,  like  contracts  for  personal  services,  is  not 
transferable  witliout  the  consent  of  tbe  promisor. 

Contracts  to  Furnish  Board. 

A  person  cannot  be  required  to  accept  as  a  boarder  any  one  who 
might  become  the  purchaser  of  a  contract  entered  into  by  the  board- 
ing-house keeper  with  the  assignor  of  the  contract. 

APPEAL  FROM  JESSAMINE  CIRCUIT  COURT. 

November  27,  1875. 

Opinion  by  Judge  Cofer: 

The  appellant  entered  into  a  contract  with  Robert  L.  Wilmore,  by 
which  he  purchased  from  him  thirteen  barrels  of  whiskey  at  $2.25 
per  gallon,  to  be  paid  for  in  board. 

The  appellee,  who  is  a  creditor  of  Wilmore,  sued  out  an  attach- 
ment against  his  property,  and  caused  the  appellant  to  be  summoned 
as  a  garnishee.  The  attachment  was  sustained,  and  the  benefit  of 
the  contract  with  the  appellant  for  board  was  adjudged  to  be  sold, 
and  was  purchased  by  the  appellee.  The  appellant  excepted  to  the 
report  of  sale;  and  his  exceptions  having  been  overruled,  and  the 
sale  confirmed  and  adjudged  to  vest  in  the  purchaser  the  right  to 
demand  and  receive  the  board  contracted  for  by  Wilmore,  this 
appeal  is  prosecuted  to  reverse  the  order  of  confirmation  and  the 
judgment  for  the  sale. 

The  contract  to  pay  in  board,  like  contracts  for  personal  services, 
is  not  transferrable  without  the  consent  of  the  promisor,  so  as  to 
vest  any  right  whatever  in  the  transferee.  We  think  it  is  quite  clear 
that  appellant  cannot  be  required  to  accept  as  a  boarder  any  one 
who  might  become  the  purchaser  of  Wilmore's  interest  in  the  con- 
tract. If  the  court  could,  by  its  judgment  and  sale,  vest  in  the  pur- 
chaser a  right  to  demand  that  he  should  be  boarded  by  the  appellant, 
then  the  appellee  may  transfer  his  right  to  another,  and  vest  in  him 
a  like  right,  and  so  on  as  often  as  it  may  suit  the  party  holding  the 
contract  to  pass  it  to  another. 

Nor  would  the  case  be  altered  if,  as  assumed  by  the  court  below, 
the  appellant  is  a  tavern  keeper.  Tavern  keepers  cannot  be  com- 
pelled to  take  boarders.  They  are  bound  to  entertain  transient  per- 
sons; but  they  are  no  more  bound  to  receive  boarders  than  are  pri- 
vate persons;  and  consequently  their  contracts  to  furnish  board  are 


544  Kentucky  Opinions. 

no  mort  transferrable  than  similar  contracts  made  by  private  persons. 

It  may  be  that  the  appellant  might  have  rested  upon  his  right  to 
refuse  to  receive  any  one  whom  he  did  not  desire  to  have  as  a 
boarder,  and  that  his  rights  in  that  respect  would  not  be  precluded 
by  the  judgment  and  sale;  but  he  has  a  right  to  ask  this  court  to 
relieve  him,  and  is  not  bound  to  run  the  risk  that  it  may  be  decided 
that  he  has,  by  his  silence  and  acquiescence,  consented  to  the  transfer 
of  his  obligation  to  the  purchaser. 

If,  as  counsel  for  the  appellee  claims,  the  contract  between  Wil- 
more  and  th€  appellant  was  fraudulent,  and  appellant  participated 
in  the  fraud,  the  remedy  is  to  attack  the  transaction  by  appropriate 
pleadings,  and  have  the  contract  set  aside,  and  compel  the  appellant 
to  account  for  the  value  of  the  whiskey  received  from  Wilmore  in 
payment  for  the  board  agreed  to  be  furnished. 

The  order  confirming  the  sale,  and  the  judgment  directing  it  to 
be  made,  are  reversed,  and  the  cause  is  remanded. 

Breckenridge  and  Shelby,  for  appellant,   Anderson,  for  appellee. 


E.  Sayre,  et  al.,  z\  Jas.  P.  Squires,  et  al. 

Supersedeas  Bonds — Suits  on — Measure  of  Recovery. 

A  supersedeas  bond  was  conditioned  that  the  obligors  would  lu&y 
all  costs  and  damages  that  might  be  adjudged  against  them  in  the 
action  and  pay  all  rents  or  damages  which  might  accrue  on  property 
of  which  appellants  were  kept  out  of  possession  by  reason  of  the  ap- 
peal. Held,  that  a  petition  to  recover  on  the  bond  was  defective 
which  failed  to  aver  that  the  costs  and  damages  awarded  had  not 
been  paid. 

Measure  of  Recovery. 

In  a  suit  on  a  supersedeas  bond  there  can  be  no  recovery  on  ac- 
count of  appellee  being  kept  out  of  possession  of  land  involved  in  the 
suit,  when  in  the  suit  there  was  no  Judgment  entitling  appellee  to 
possession,  but  only  an  order  for  the  sale  of  the  land. 

APPEAL  PROM  BOURBON  CIRCUIT  COURT. 

November  27,  1875. 

Opinion  by  Judge  Cofer  : 

The  appellants  sued  Joseph  and  Andrew  Wilson,  and  caused  at- 
tachments to  be  issued  against  the  property  of  the  latter,  which  was 
levied  on  two  hundr-ed  acres  of  land  belonging  to  him.  They  recov- 


E.  Sayre,  et  al.,  V,  Jas.  P.  Squires,  et  al.  545 

ered  judgment  in  personam  for  the  demands  sued  for,  and  orders 
sustaining  the  attachments  and  for  a  sale  of  the  land.  From  the  or* 
ders  sustaining  the  attachments  and  ordering  the  land  to  be  sold, 
Wilson  prosecuted  an  appeal  to  this  court ;  and  in  order  to  suspend 
the  sale  pending  the  appeal,  they  executed  a  supersedeas  bond  in 
the  usual  form.  This  court  affirmed  the  orders  appealed  from,  and 
the  land  was  sold,  but  did  not  realize  a  sum  sufficient  to  satisfy  the 
judgments.  Appellants  then  brought  this  suit  on  the  supersedeas 
bond  against  the  appellees  who  were  sureties  therein.  They  alleged 
that  about  two  and  a  half  years  elapsed  between  the  time  when  the 
land  would  have  been  sold  if  the  judgment  for  a  sale  had  not  been 
superseded,  and  the  affirmance  of  the  judgment  by  this  court ;  that 
during  that  time  Wilson  remained  in  possession  of  the  land,  and  in 
consequence  of  bad  husbandry  and  waste,  its  value  was  depreciated 
to  the  amount  of  twenty-five  dollars  per  acre.  They  also  alleged 
that  the  rent  of  the  land  during  the  time  the  supersedeas  was  in 
force  was  reasonably  worth  the  sum  of  $2,500 ;  and  they  prayed  for 
judgment  against  the  appellees  for  these  sums,  or  so  much  thereof 
as  would  satisfy  the  residue  of  their  judgments. 

Did  the  petition  contain  a  statement  of  facts  constituting  a  cause 
of  action  ?  The  answer  to  this  question  must  depend  upon  a  proper 
construction  of  the  covenants  in  the  bond,  which  were  first,  that  the 
obligors  would  pay  to  these  appellants  all  costs  and  damages  that 
might  be  adjudged  against  Wilson  on  the  appeal,  and  second,  that 
they  would  pay  all  rents  or  damages,  which,  during  the  pendency 
of  the  appeal,  might  accrue  on  any  of  the  property  of  which  the 
present  appellants  were  kept  out  of  possession  by  reason  of  the 
appeal. 

Under  the  first  covenant,  the  sureties  became  liable  for  the  costs 
adjudged  in  this  court  against  Wilson,  and  for  such  damages  as  this 
court  awarded  on  the  affirmance.  Chandler  v.  Thornton,  et  al.,  4  B. 
Mon.  360.  It  is  not  alleged  that  any  part  of  the  costs  in  this  court 
remains  unpaid,  or  that  any  damages. were  awarded;  and  there  is, 
therefore,  no  cause  of  action  on  the  first  covenant. 

The  second  covenant  bound  the  sureties  to  pay  all  rents  or  dam- 
ages which  might  accrue  on  any  property  of  which  the  present  ap- 
pellants were  kept  out  of  possession  by  reason  of  the  appeal.  It  is 
clear  that  they  were  not  kept  out  of  the  possession  of  the  land  by 
reason  of  the  appeal.  They  never  had  the  possession  or  the  right  to 
possession.  It  has  been  adjudged  that  they  had  a  right  to  have  the 
land  sold ;  and  the  supersedeas  suspended  the  exercise  of  that  right. 

36 


546  Kentucky  Opinions. 

According  to  the  allegations  in  the  petition,  they  suffered  loss  in 
consequence  of  the  execution  of  the  bond ;  but  that  loss  is  not  em- 
braced by  the  covenant  of  these  appellees,  and  their  liability,  being 
created  alone  by  their  bond,  must  be  measured  by  its  provisions. 
Ferguson,  et  aL,  v.  Tipton,  et  d,,  i  B.  Mon.  28. 

It  is  doubtless  true,  upon  the  assumption  that  the  allegations  in 
the  petiticMi  are  true,  that  these  appellants  have  suffered  damages  in 
consequence  of  the  execution  of  the  bond,  but  the  appellees,  not 
having  undertaken  to  answer  for  that  description  of  damages,  are 
not  liable.  The  fault,  if  there  be  one,  is  in  the  form  of  the  bond, 
and  as  it  is  in  conformity  to  the  requirements  of  the  statute,  Sec. 
887,  Civil  Code,  it  would  seem  there  was  no  authority  for  requiring 
a  bond,  the  provisions  of  which  would  have  indemnified  the  appel- 
lants against  the  damages  of  which  they  complain. 

The  decision  of  the  circuit  court  was  in  conformity  to  these  views 
and  must  be  affirmed. 

Brent  &  McMillan,  for  appellants, 
Cunningham,  Finney,  for  appellees. 


Thomas  Current  v.  Claud  Cantrill,  et  al. 

Damages — Instructions — Negligence — ^Proximate  Cause. 

To  make  a  defendant  liable  for  damages  caused  by  his  negligence, 
the  negligence  complained  of  miust  be  the  proximate  cause  of  the  in- 
Jury,  and  an  instruction  not  recognizing  this  rule  is  erroneous. 

APPEAL  FROM  BOURBON  CIRCUIT  COURT. 

December  1,  1875. 

Opinion  by  Judge  Peters  : 

The  evidence  is  somewhat  conflicting,  and  the  judgment  cannot 
be  reversed  by  this  court  unless  the  law,  as  expounded  by  the  court 
below  to  the  jury,  was  erroneous  and  prejudicial  to  appellant,  and 
that  is  the  only  question  presented  by  the  appeal,  as  no  exceptions 
seem  to  have  been  taken  to  any  of  the  evidence  offered  cmi  the  trial 
by  appellees. 

In  the  last  paragraph  of  instruction  No.  i  given  to  the  jury  on 
the  motion  of  appellees,  they  were  told,  in  substance,  that  if  they 
believed  from  the  evidence  that  the  defendant,  while  threshing 
plaintiff's  wheat,  omitted  to  use  upon  his  engine  such  known  and 


Jno.  K.  Tomlinson  V,  Daniel  W.  Phoenix.  547 

usual  device  and  contrivance  as  were  usual  and  customary  on  ma- 
chines of  similar  character  to  prevent  the  escape  of  sparks  from 
said  engine,  and  their  wheat  was  ignited  by  a  spark  that  escaped 
from  the  engine  and  thereby  destroyed,  they  ought  to  find  such 
damages  as  the  plaintiffs  sustained  by  reason  of  the  omission. 

By  this  instruction  the  liability  of  the  appellant  is  fixed  by  his 
failure  to  use  upon  his  engine  such  device  and  contrivance  as  were 
usual  and  customary  on  machines  of  that  character,  whether  the 
use  of  such  device  and  contrivance  would  have  prevented  the  de- 
struction or  not.  He  should  have  been  made  liable  to  appellees  for 
the  value  of  their  wheat  upon  the  belief  of  the  jury  from  the  evi- 
dence that  the  wheat  would  not  have  been  burned  and  lost  if  the 
customary  and  usual  device  and  contrivance  had  been  appUed  to 
their  machine  to  prevent  the  escape  of  the  sparks.  Or  to  express  it 
differently,  if  appellant  failed  to  use  the  spark  arrester,  or  such 
preventive  of  the  escape  of  sparks  from  the  smoke  stack  as  was 
generally  used  with  such  machines,  and  appellees'  wheat  was  burned 
and  destroyed  by  his  failure  to  use  such  preventives,  in  that  event 
he  would  be  liable.  To  make  a  party  responsible  for  negligence, 
the  negligence  complained  of  must  be  the  proximate  cause  of  the 
injury.   Sherman  &  Redfield  on  Negligence,  Sec.  9,  p.  7. 

To  the  second  instruction  given,  the  same  objection  exists  as  to 
the  first.  We  see  no  objection  to  the  instructions  given  by  the  court 
in  substitution  of  those  asked  for  by  appellant.  There  are  no  excep- 
tions to  the  ruling  of  the  court  in  admitting  or  in  refusing  to  admit 
evidence.  But  for  the  error  in  giving  the  two  instructions  as  asked 
by  appellees  without  the  qualification  herein  suggested,  the  judg- 
ment is  reversed,  and  the  cause  is  remanded  for  a  new  trial  and  for 
further  proceedings  consistent  herewith. 

Cunningham  &  Turney,  Breckenridge  &  Shelby,  for  appellant. 
A,  Duvall,  R.'T.  Davis,  Huston  &  Mulligan,  for  appellees. 


Jno.  K.  Tomlinson  v,  Daniel  W.  Phoenix. 

Reward  for  Arrest. 

Where  two  persons  actively  iMurticipate  in  causing  the  arrest  of  a 
person  for  whose  arrest  a  reward  is  offered,  the  one  disclosing  where 
the  offender  was  and  having  a  warrant  issued  for  his  arrest,  and  the 
other  acting  under  the  warrant  making  the  arrest,  each  is  entitled  to 
one-half  of  the  reward. 


548  Kentucky  Opinions. 

APPEAL  FROM  WASHINGTON  CIRCUIT  COURT. 

December  1,  1875. 

Opinion  by  Judge  Pryor  : 

Both  of  the  parties  to  this  controversy  were  instrumental  in  se- 
curing the  arrest  of  the  party  for  whose  apprehension  the  reward 
was  offered.  The  one  disclosed  the  locality  where  the  offender  lived, 
and  had  a  warrant  issued  for  his  arrest,  and  although  this  warrant 
was  for  a  trivial  offense,  it  was  issued  for  the  sole  purpose  of  hav- 
ing the  party  arrested  and  placed  in  custody,  that  he  might  be  re- 
manded to  Kentucky  and  tried  for  the  greater  offense.  The  other, 
acting  under  the  warrant,  and  at  the  peril  of  his  own  life,  with  a 
knowledge  of  the  purpose  for  which  it  was  issued,  made  the  arrest 
and  lodged  the  accused  in  jail.  They  were  both  active  participants 
in  causing  the  arrest,  and  the  one  as  much  entitled  to  the  reward 
as  the  other. 

The  judgment  is,  therefore,  reversed  and  the  cause  remanded 
with  directions  to  the  court  below  to  adjudge  that  the  appellant  and 
appellee  are  each  entitled  to  one-half  of  the  reward  (two  hundred 
and  fifty  dollars).  The  same  will  be  certified  to  the  auditor  of  pub- 
lic accounts  as  required  by  Sec.  5  of  Chap,  i.  General  Statutes. 

W,  E.  Selecman,  for  appellant. 


Louisville  &  Nashville  R.  Co.  v.  Jno.  N.  Brown's  Adm'r. 

Damages — Wilful  Negligence — Carrier's  Liability. 

Where  a  nailroad  company  by  its  engineer,  machinist  or  its  agents 
whose  duty  it  is  to  care  for  and  supervise  the  machinery,  knew  that 
a  boiler  was  unsafe  for  use  and  voluntarily  failed  to  remedy  the  de- 
fect, and  it  exploded,  injuring  or  killing  its  employe,  it  is  wilful 
negligence  and  the  company  is  liable  for  the  damages  sustained. 

Recovery. 

Where  a  railroad  company  is  guilty  of  wilful  negligence,  an  em- 
ploye injured  as  a  result  thereof  is  entitled  to  damages  not  only  to 
include  compensation,  which  is  the  value  of  claimant's  power  to  earn 
money,  but  the  Jury  may  also  increase  the  damages  by  way  of  punish- 
ment for  the  wrong  committed,  looking  to  the  character  of  the  ofTense, 
the  conduct  of  the  parties  and  the  attendant  clrcamstances. 


Louisville,  etc.,  R.  Co.  v,  Jno.  N.  Brown's  Adm'r.        549 

APPEAL  FROM  LOGAN  CIRCUIT  COURT. 

December  1,  1875. 

Opinion  by  Judge  Pryor  : 

In  the  trial  of  this  case  the  fact  seems  to  have  been  overlooked 
that  it  was  a  proceeding  under  the  statute  for  the  recovery  of  puni- 
tive damages  on  account  of  the  death  of  appellee's  intestate,  caused 
by  th€  wilful  neglect  of  the  appellant  or  those  in  its  employment. 
This  cause  of  action  was  unknown  at  the  common  law,  and  is  created 
alone  by  statute  that  authorizes  a  recovery  on  damages,  including 
not  only  compensation,  but  also  punishment  for  the  wrong  com- 
mitted. The  right  of  recovery  is  sought,  not  for  the  reason  that 
the  party  charged  has  failed  to  exercise  ordinary  care,  but  has  failed 
to  take  even  the  slightest  care  and  precaution  for  the  safety  of  those 
in  its  employment.  The  questions  arising  in  this  case  have  hereto- 
fore been  considered  by  this  court  in  the  cases  of  the  Board  of  In- 
ternal Improvement  of  Shelby  County  v.  Scearce,  2  Duv.  576; 
Louisznlle  &  Portland  Canal  Co,  v.  Murphy,  Admr,,  et  al.,  9  Bush 
522 ;  Louisznlle,  Cincinnati  &  Lexington  R,  Co.  v.  Case's  Adntr.,  9 
Bush  728 ;  Same  z\  Cavens'  Admr,,  9  Bush  559. 

In  all  these  cases  wilful  neglect  has  been  said  to  be  equivalent 
to  intentional  wrong  or  a  recklessness  evidencing  the  absence  of  all 
care  and  precaution  for  the  safety  and  protection  of  others.  A  rail- 
way company  may  be  guilty  of  ordinary  neglect,  or  of  even  a  still 
greater  degree  of  neglect  in  failing  to  repair  machinery  attached 
to  its  cars  for  the  transportation  of  freight  and  passengers ;  and 
whilst  a  liability  would  exist  because  of  this  want  of  care  to  the 
party  injured,  the  company  would  not  necessarily  be  guilty  of  wilful 
neglect.  In  such  cases  a  liability  to  passengers  injured  would  arise 
not  only  by  reason  of  the  failure  to  exercise  ordinary  care,  but  for 
tlie  want  of  that  extraordinary  care  the  carrier  assumes  to  exercise 
when  undertaking  to  transport  passengers.  A  mere  defect  from 
which,  in  the  judgment  of  those  skilled  in  such  matters,  no  injury 
would  likely  occur,  and  a  failure  to  remedy  which  would  incur  a 
liability  at  common  law,  does  not  constitute  wilful  negligence.  If 
the  defect  in  the  machinery  is  palpable  and  perilous,  and  this  fact 
is  known  to  the  company  or  its  agents,  or  by  the  exercise  of  proper 
precaution  they  could  have  ascertained  the  defect,  and  that  it  was 
such  as  would  endanger  the  lives  of  those  on  its  train  if  not  reme- 
died, then  the  presumption  of  wilful  neglect  might  arise  when  an 
injury  occurred  by  reason  of  the  failure  to  repair  or  neglect  of  duty. 


5SO  Kentucky  Opinions. 

In  the  present  case,  if  the  boiler  or  machinery  was  defective,  and 
the  defect  was  of  such  a  character  as  to  render  it  unsafe  for  use 
by  those  engaged  to  run  the  train,  and  the  appellant  or  its  engineer 
or  machinist  knew  this  fact,  or  by  the  exercise  of  ordinary  vigilance 
could  have  ascertained  it,  and  voluntarily  failed  to  remedy  the  de- 
fect, the  company  should  be  held  liable,  if  by  reason  of  the  defect 
the  injury  occurred;  or  if  the  company,  by  its  engineer,  machinist 
or  those  whose  duty  it  was  to  care  for  and  supervise  the  machinery 
knew  that  the  boiler  was  unsafe  for  use,  the  liability  would  exist. 
It  is  also  the  duty  of  the  company  to  employ  competent  engineers 
upon  its  trains,  but  if  one  employed  does  not  possess  the  requisite 
skill,  the  appellant  cannot  be  said  to  be  guilty  of  wilful  neglect  in 
making  the  employment,  unless  the  want  of  skill  was  known  by 
the  company,  or  should  have  been  known  by  reason  of  his  neglect 
or  want  of  skill  while  in  its  employ. 

This  action  being  for  wilful  neglect  (and  no  others  can  be  main- 
tained under  the  statute,  as  the  deceased  was  an  employe  on  the 
train  at  the  time  of  his  death)  is  sustained  by  the  evidence,  and  the 
appellee  is  entitled  to  recover  punitive  damages.  Such  damages  not 
only  include  compensation,  which  is  the  value  of  the  deceased's 
power  to  earn  mc«iey,  as  in  the  case  of  Case's  Adtnr.,  cited  above, 
the  death  being  immediate;  but  the  jury  may  also  increase  the  dam- 
ages by  way  of  punishment  to  the  party  for  the  wrong  committed ; 
and  in  fixing  the  punishment  they  must  look  to  the  character  of  the 
offense,  the  conduct  of  the  parties,  and  all  the  attendant  circum- 
stances connected  with  the  commission  of  the  wrong.  We  perceive 
no  reason  why  the  wealth  of  the  defendant  may  not  be  shown  to 
the  jury,  as  well  as  the  fact  that  the  deceased  was  a  man  of  family ; 
still  we  are  inclined  to  the  opinion  that  undue  prominence  should 
not  be  given  to  a  particular  branch  of  the  case  by  making  it  the 
subject  of  an  instruction.  It  should  go  to  the  jury  like  the  other 
evidence  of  facts  and  circumstances  connected  with  the  commis- 
sion of  the  offense.  Sedgwick  on  The  Measure  of  Damages  492. 
The  instructions  given  for  the  appellee  being  inconsistent  with  the 
facts  here  presented,  the  judgment  is  reversed  and  cause  remanded 
for  further  proceedings  consistent  with  this  opinion. 

A.  G.  Rhea,  Russell  Houston,  S,  Rodes,  for  appellant. 

Bate  &  Williams,  James  P.  Bates,  D.  M.  Wright,  for  appellee. 


A.  I.  COCOUGIINER,  ET  AL.,  V.  COMMONWEALTH,  ET  AL.  551 

A.  I.  COCOUGHNER,  ET  AL.,  V.  COMMONWEALTH,  ET  AL. 

Collection  of  Taxes— Sheri£F — Defense. 

It  is  the  official  duty  of  the  sheriff  to  comply  with  the  order  of  the 
county  court  and  collect  the  puhlic  revenue,  and  the  plea  that  he  was 
not  sheriff  by  reason  of  his  failure  to  execute  his  bond  at  the  proper 
time,  or  by  reason  of  his  refusal  to  execute  it  at  all  for  the  collection 
of  a  special  tax,  constitutes  no  defense  for  him  or  his  sureties. 

Public  Office. 

Prior  to  the  expiration  of  the  term  of  office  of  a  sheriff  and  while 
he  is  still  living,  not  having  resigned  his  office,  the  office  does  not  be- 
come vacant  until  declared  so  in  a  proper  proceeding. 

APPEAL  FROM  WASHINGTON  CIRCUIT  COURT. 

December  2,  1875. 

Opinion  by  Judge  Pryor  : 

In  the  case  of  the  Mercer  county  court  against  Gabbart's  adminis- 
trator, it  was  held  that  the  increase  of  the  levy  after  the  execution 
of  the  bond  imposed  no  additional  duty  on  the  sheriff.  The  sheriff 
of  Washington  county  was  legally  required  to  collect  the  county 
levy  and  public  dues  of  that  county,  although  in  the  form  of  a 
special  tax,  imposed  to  pay  off  the  interest  on  the  county  bonds.  The 
charter  of  the  Cumberland  &  Ohio  Railroad  Company  imposed  this 
duty  upon  him,  if  by  reason  of  his  official  position  he  would  not 
otherwise  have  been  compelled  to  make  the  collection.  It  was  the 
official  duty  of  the  sheriff  to  make  the  collection,  and  the  plea  that 
he  was  not  sheriff  by  reason  of  a  failure  to  execute  his  bond  at  the 
proper  time,  or  by  reason  of  his  refusal  to  execute  the  bond  at  all 
for  the  collection  of  this  special  tax,  cannot  avail  him  or  his  sure- 
ties. The  office  was  not  vacant  until  declared  so  in  a  proper  pro- 
ceeding. Brown,  et  al.,  v.  Grover,  Admr,,  et  aL,  6  Bush  i. 

It  being  the  duty  of  the  sheriff  to  collect  this  tax,  it  was  incum- 
bent upon  him  in  this  action  to  allege  and  show  what  moneys  he 
had  collected,  and  the  parties  that  were  insolvent,  if  any,  in  order 
that  the  court  might  know  the  extent  of  his  defense.  He  says  that 
he  paid  over  all  he  collected,  without  saying  how  much  he  collected, 
of  whom  he  made  the  collection,  or  giving  any  reason  why  he  failed 
to  collect  all  the  tax,  or  a  statement  of  those  who  had  failed  to  pay. 
Having  been  ordered  by  the  county  court  to  make  the  collection,  he 
had  the  right  to  continue  to  collect  after  his  term  of  office  expired. 
He  did  collect  as  much  as  thirteen  or  fourteen  thousand  dollars, 


55^  Kentucky  Opinions. 

and  now  insists  that  he  had  no  list  of  the  parties  required  to  pay 
tax,  or  notice  that  an  order  for  him  to  collect  had  been  made.  These 
facts  are  inconsistent  with  his  action  in  making  such  a  large  collec- 
tion, and  constitute  no  defense.  The  court  will  presume  that  he 
knew  of  the  order,  and  had  the  list  of  the  parties  charged  with  the 
tax,  as  he  admits  that  he  proceeded  to  collect  the  tax,  and  did,  in 
fact,  collect  nearly  one-half  of  it.  That  seems  to  have  been  paid 
over,  and  no  doubt  he  collected  more  than  was  accounted  for,  as  the 
evasive  answer  filed  clearly  indicates.  No  judgment  was  rendered 
by  the  court  below  for  the  amount  of  the  taxes  enjoined,  or  for  the 
ten  per  cent,  damages  to  which  the  appellees  were  entitled.  The  ap- 
pellants were  not  entitled  to  a  trial  by  jury,  as  the  facts  set  forth 
in  the  answer  constituted  no  defense. 

It  is  not  alleged  in  the  answer  that  any  of  the  taxpayers  are  in- 
solvent, or  that  all  of  the  tax  could  not  have  been  collected.  The 
parties,  as  is  evident  from  the  defense,  are  withholding  all  informa- 
tion as  to  the  sheriflF's  action  in  the  premises  in  order  to  evade  the 
judgment.  The  appellants  were  not  made  to  pay  any  damages,  and 
ought  not  to  have  been  allowed  the  commission. 

Judgment  affirmed, 

Harrison  &  Knott,  for  appellants.   W,  H,  Hays,  for  appellees. 


M.  Keeber  v.  Mary  Henderson. 

Promissory  Note — Collector. 

A  person  haying  the  poeseBsion  of  a  promissory  note  for  the  pur- 
pose of  collection,  has  no  authority  to  make  a  contract  on  behalf  of 
the  owner  to  surrender  it  to  another. 

Attorney  at  Law. 

The  mere  possession  of  a  note  by  an  attorney  at  law  does  not  im- 
port more  than  that  he  has  authority  to  collect. 

APPEAL  FROM  HENDERSON  COURT  OF  COMMON  PLEAS. 

December  2,  1875. 

Opinion  by  Judge  Cofer  : 

The  paper  executed  by  Anderson  shows  that  the  appellant  then  un- 
derstood that  he  held  the  note  for  collection ;  and  the  appellant  was 
bound  to  know  that,  having  it  for  that  purpose,  he  had  no  right  to 
make  any  contract  on  behalf  of  th^  appellee  to  surrender  the  note 


Abe  Boyd,  et  al.,  v.  C.  H.  Adams,  et  al.  553 

to  him.  And  he  seems  then  to  have  so  understood  the  matter,  be- 
cause he  took  from  Anderson  an  agp"eement  to  endeavor  to  raise  the 
mon€y  to  pay  it  over  to  the  appellee. 

He  does  not  allege  that  he  then  supposed  Anderson  was  the  owner 
of  the  note;  but  says  it  was  placed  in  his  hands,  and  that  Ander- 
son "represented  to  him  that  he  had  full  power,  right  and  authority 
to  collect,  control,  or  dispose  of  it."  He  must,  therefore,  have 
known  that  the  note  did  not  belong  to  Anderson,  and  that  he  held  it 
for  the  appellee.  Knowing  this  fact,  it  was  his  duty  to  learn  what 
authority  Anderson  had  in  the  premises ;  and  having  trusted  to  his 
statement,  he  cannot  now  escape  liability  without  showing  that  An- 
derson had  the  authority  which  he  claimed. 

If  Anderson  had  claimed  to  be  the  owner  of  the  note,  and  the  ap- 
pellant, trusting  to  that  statement,  had  dealt  with  him  in  the  manner 
in  which  he  did,  it  may  be  that  the  appellee,  having  indorsed  her  name 
on  the  note,  and  thereby  put  it  in  Anderson^s  power  to  deceive  him, 
the  appellee  would  be  compelled  to  look  to  Anderson.  But  as  the 
appellant  knew  that  the  note  did  not  belong  to  Anderson,  he  dealt 
with  him  at  his  peril.  The  mere  possession  of  a  note  by  an  attor- 
ney at  law  does  not  import  more  than  that  he  has  authority  to  col- 
lect it ;  and  if  the  obligor  deals  with  him  beyond  the  ordinary  mode 
of  making  payment,  he  is  in  precisely  the  same  situation  as  any 
other  person  dealing  with  an  agent  whose  powers  are  limited. 

Judgment  affirmed. 

Vance  &  Merritt,  for  appellant.    M.  Yeaman,  for  appellee. 


Abe  Boyd,  et  al.,  v.  C.  H.  Adams,  et  al. 

Guardian  and  Ward — Rent  of  Real  Estate. 

When  wards  live  with  their  mother  It  Is  legal  for  the  guardian  to 
permit  the  mother  to  rent  out  a  building  owned  by  the  wards  and 
apply  the  rents  to  the  maintenance  of  the  wards,  and  where  she  so 
applies  the  rents  the  wards  cannot  hold  the  guardian  liable  on  account 
thereof. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

December  4,  1875. 

Opinion  by  Judge  Lindsay: 

The  proof  is  clear  that  the  g^iardian  authorized  the  brother  of 
appellees  to  collect  the  rents  that  might  accrue  on  their  real  estate, 


554  Kentucky  Opinions. 

and  that  she  agreed  to  rent  the  same  out,  collect  the  rents,  and  apply 
them  when  collected  to  the  support  and  maintenance  of  her  children. 
The  testimony  does  not  show  that  the  mother  failed  to  keep  her 
agreement,  nor  that  she  did  not  collect  as  much  rent  as  it  was  pos- 
sible to  secure  under  the  circumstances  of  the  case ;  and  it  is  certain 
the  appellees  continued  to  reside  with  her,  and  were  supported, 
clothed  and  sent  to  school.  As  this  agreement  involved  merely  the 
expenditure  of  the  income  of  the  wards,  the  guardian  had  the  right 
to  make  it.  It  met  with  the  approval,  and  was  made  with  the 
mother  of  those  who  now  complain  that  it  was  improvident.  Under 
such  circumstances,  it  will  require  a  very  strong  case,  of  abuse  of 
discretion,  of  a  useless  expenditure  of  money,  to  authorize  the 
court  to  hold  the  guardian  and  his  sureties  liable.  Bybee  v.  Thorp 
and  Wife,  4  B.  Mon.  313. 

The  judgment  of  this  court,  heretofore  rendered,  requires  the 
guardian  to  account  for  full  four  years  rent,  and  allows  him  for  no 
expenditures  not  actually  made. 

Petition  overruled, 

L,  D.  Husbands,  A,  Duvall,  for  appellants. 
J.  W.  Bloomfield,  for  appellees. 


Lucy  McCame's  Adm'r,  et  al.,  v,  Alex.  McCame's  Adm'r. 

Gifts  Causa  Mortis. 

A  gift  causa  mortis  is  not  made  out  by  a  statement  by  the  giver  two 
or  three  days  prior  to  his  death  and  at  the  time  he  delivered  certain 
personal  property  to  a  friend,  "that  he  wanted  him  to  take  charge  of 
his  effects/'  and  said  he  wanted  it  for  the  boys,  mecmlng  his  grand- 
children. 

Causa  Mortis. 

To  convey  title  by  a  gift  causa  mortis,  the  language  and  acts  of  the 
giver  must  indicate  more  than  his  intention  in  the  future  to  give—it 
must  be  a  gift  in  the  present. 

APPEAL  FROM  BRECKENRIDGE  CIRCUIT  COURT. 

December  7,  18^75. 

Opinion  by  Judge  Pryor  : 

The  evidence  in  this  case  fails  to  establish  either  a  gift  inter 
vivos,  or  causa  mortis.  Only  two  witnesses  speak  of  the  facts  upon 
which  the  alleged  gift  is  based.    Both  of  these  witnesses  say  that  the 


Lucy  McCame's  Adm'r  v.  Alex.  McCame's  Adm'r.        555 

intestate,  a  few  days  prior  to  his  death,  was  very  anxious  to  see 
McHenry  Meador  (the  appellee),  and  that  when  the  latter  arrived 
at  the  house,  John  C.  Meador,  the  witness,  states,  he  was  present 
when  the  money  was  d-elivered  to  McHenry  Meador,  and  tlie  latter 
was  told  by  the  intestate  that  the  money  was  to  go  to  his  grandchil- 
dren. Strother,  another  witness  (the  physician),  who  was  present 
at  the  same  time,  says  that  this  took  place  two  or  three  days  prior 
to  the  old  man's  death;  and  that  as  soon  as  McHenry  Meador 
reached  the  house  he  was  told  by  the  intestate  that  he  wanted  him  to 
take  charge  of  his  effects.  He  also  called  on  McHenry  Meador 
and  the  witness,  at  the  same  time,  to  count  the  money.  The  witness 
counted  the  money;  it  was  $3,650  in  gold  and  $6,735  ^"  currency. 
This  witness  also  states  that  when  he  delivered  the  money  to 
Meador,  he  told  him  he  wanted  it  for  the  boys. 

It  was  the  purpose  of  the  intestate  to  place  his  effects  in  the 
hands  of  McHenry  Meador,  and  he  may  have  intended,  and  no 
doubt  did  intend  that  his  grandchildren  or  the  boys  were  to  have 
this  money,  but  reserved  to  himself  the  right  to  make  a  disposition 
of  it  in  the  future.  The  object  on  the  day  it  was  delivered  to 
Meador  was  only  for  the  purpose  of  securing  it  as  a  part  of  his 
estate.  He  was  then  in  a  helpless  condition,  and  felt,  no  doubt,  that 
it  was  insecure  to  have  that  much  money  in  his  custody.  He  made 
no  gift  of  it  to  his  grandchildren  or  to  the  boys,  but  indicated  that 
such  was  his  intention  at  some  future  time.  He  fails  not  only  to  use 
language  denoting  a  gift,  but  leaves  it  altogether  a  matter  of  uncer- 
tainty, if  a  gift  is  to  be  implied,  as  to  how  the  grandchildren  are  to 
take,  or  the  manner  in  which  the  distribution  is  to  be  made. 

One  of  the  witnesses  also  understood  him  to  use  the  word  bovs 
instead  of  grandchildren ;  if  so  what  boys  he  had  reference  to  is  left 
altogether  to  conjecture ;  and  if  we  were  to  indulge  in  speculation 
as  to  his  purposes,  it  would  be  equally  as  proper  to  determine  that 
his  son  was  included,  as  well  as  the  grandchildren.  The  money  was 
to  go  to  his  grandchildren,  or  he  wanted  it  for  the  boys,  are  words 
that  ought  not  to  be  construed  as  a  gift  causa  mortis,  under  the  facts 
of  this  case.  The  intestate  was  at  the  time  delivering  his  effects 
into  the  hands  of  another  for  keeping,  and  with  no  avowed  purposie 
of  passing  the  title  directly  or  at  his  death  to  any  named  person,  and 
certainly  should  not  be  held  as  a  gift  to  those  whose  identity  is  es- 
tablished, not  from  the  mouth  of  the  donor,  but  from  the  opinions 
of  the  witnesses.  This  character  of  proof  is  too  vague  and  uncer- 
tain upon  which  to  pass  the  title  to  property.    The  chancellor  should 


5S6  Kentucky  Opinions. 

be  well  satisfied  from  the  proof  as  to  the  existence  of  the  gift 
before  he  undertakes  to  divest  the  widow  and  heirs  of  their  legiti- 
mate claim  or  interest  in  such  an  estate.  It  is  not  to  be  presumed 
that  the  intestate  would  dispose  of  a  large  personal  estate  in  this 
maimer ;  and  in  the  absence  of  more  satisfactory  evidence  establish- 
ing the  gift,  we  must  adjudge  that  none  was  made.  The  judgment 
is  reversed  and  cause  remanded  with  directions  to  charge  the  ad- 
ministrator with  these  amounts  of  money  as  part  of  his  intestate's 
estate.  2  Kent's  Commentaries  438,  444 ;  Payne,  et  ai,  v.  Powell,  et 
aL,  5  Bush  248.    Judge  Cofer  not  sitting. 

G.  IV.  Williants,  /.  W.  Lezvis,  /.  C.  Walker,  for  appellants. 
Kincheloe,  Eskridge,  for  appellee. 


Louisville  City  Railroad  Co.  v.  Antoxie  Brotzge. 

Damages — Negligence^Street  Railways. 

It  is  culpable  negUgence  for  a  street  car  company  operating  its  cars 
in  a  populous  city  to  fail  to  have  on  its  cars  a  sufficient  number  of  em- 
ployes to  discharge  the  duty  it  owes  to  the  public  to  use  ordinary  care 
to  avoid  injuring  others,  and  if  one  person  cannot  perform  the  duties 
of  both  driver  and  conductor  so  as  not  to  endanger  the  safety  of  others, 
it  should  employ  more  hands. 

Negligence. 

Notwithstanding  the  fact  that  one  crossing  a  street-car  track  may  be 
guilty  of  contributory  negligence,  it  Is  the  duty  of  the  driver  of  a 
street  car  to  use  reasonable  diligence  to  prevent  injuring  such  person. 

Negligence. 

Where  a  child  is  playing  in  the  street,  and  is  on  the  street-car  track, 
and  the  driver  of  the  car  fails  to  use  reasonable  diligence  in  seeing 
the  child  or  in  arresting  the  car  before  it  ran  upon  the  child,  the  com- 
pany is  liable. 

Negligence. 

Where  a  child  three  or  four  years  old  is  in  the  street  upon  the 
street-car  track,  if  through  carelessness  the  driver  fails  to  see  it, 
and  the  car  strikes  and  injures  the  child,  the  company  is  liable  if  the 
driver,  by  exercising  reasonable  diligence,  could  have  seen  it  and 
avoided  the  injury. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

December  8,  1875. 

Opinion  by  Judge  Cofer  : 

Antonie  Brotzge,  an  infant  about  three  and  a  half  years  old,  by 


Louisville  City  R.  Co.  v.  Antonie  Brotzge.  557 

his  next  friend,  brought  this  action  in  the  Jefferson  court  of  com- 
mon pleas  for  injuries  sustained  in  consequence  of  being  run  over 
by  one  of  the  defendant's  street  cars.  The  defendant  denied  that 
the  alleged  injuries  were  caused  by  its  negligence,  or  by  the  negli- 
gence of  its  agents  or  servants,  and  averred  that  if  the  plaintiff  was 
injured  at  all,  it  was  in  consequence  of  his  own  negligence  or  care- 
lessness. Verdict  and  judgment  were  rendered  for  the  plaintiff, 
and  the  defendant  has  appealed. 

The  evidence  showed  that  the  plaintiff  was  playing  in  the  street 
near  his  father's  house,  and  went  upon  the  defendant's  road  track, 
and  was  there  run  over  by  one  of  its  cars  and  seriously  injured. 
When  he  was  first  seen  on  the  track,  the  car  was  distant  from  him 
about  one-half  a  square,  moving  at  the  usual  rate  of  speed;  the 
driver  then  had  his  back  turned  toward  his  team,  and  seemel  to  be 
making  change  for  a  passenger;  and  it  does  not  appear  that  he 
changed  his  position  or  looked  ahead  of  his  car  until  after  the 
plaintiff  was  knocked  down  and  run  over.  A  witness  who  saw  the 
plaintiff  and  the  car  when  they  were  about  a  half-square  apart,  tried 
to  attract  the  attention  of  the  driver,  but  failed  to  do  so  and  hol- 
lowed to  the  plaintiff  to  come  off  the  track,  and  he  started;  but 
before  he  could  get  away  the  train  was  upon  him,  and  he  was  in- 
jured as  stated. 

The  appellant  asked  five  instructions,  all  of  which  were  refused, 
except  the  first.  In  the  second  instruction  asked  the  court  was 
requested  to  tell  the  jury  that  the  burden  was  on  the  plaintiff  to 
prove  that  the  injury  was  caused  by  the  negligence  of  the  driver, 
and  that  there  was  no  other  culpable  cause  of  the  injury.  If  the 
injury  was  caused  by  the  negligence  of  the  driver,  the  plaintiff  was 
prima  facie  entitled  to  a  verdict;  and  if  there  was  any  cause  co- 
operating with  such  negligence  which  would  exonerate  the  defend- 
ant, the  burden  was  on  it  to  prove  such  exculpatory  fact,  and  not  on 
the  plaintiff  to  disprove  it. 

In  the  third  instruction  the  court  was  asked  to  say  to  the  jury 
that  if  the  plaintiff  was  playing  in  the  street  traversed  by  the 
defendant's  railway,  and  ran  upon  the  track  in  front  of  the  car  and 
was  injured,  the  law  was  for  the  defendant,  unless  they  believed 
from  the  evidence  that  the  driver  saw  the  plaintiff's  danger  and 
could  have  avoided  injuring  him.  This  instruction  was  properly 
refused.  It  made  the  liability  of  the  company  to  depend,  not  upon 
the  question  whether  the  driver  was  guilty  of  negligence,  but  upon 
his  having  seen  the  plaintiff  in  time  to  avoid  injuring  him.     The 


SS8  Kentucky  Opinions. 

jury  would  have  been  required,  under  that  instruction,  to  find  for  the 
defendant,  unless  it  appeared  that  the  driver  saw  the  plaintiff  in 
time  to  stop  the  car  before  reaching  him,  although  they  might  have 
believed  the  driver  was  guilty  of  negligence  in  not  discovering  him 
on  the  track  in  time  to  stop  the  car.  Whether  there  was  negligence 
in  this  respect  should  have  been  left  to  the  jury. 

The  fourth  instruction  is  liable  to  the  same  objection.  Tlie  fifth 
is  in  these  words:  "If  the  jury  believe  from  the  evidence  *  *  * 
that  at  the  time  of  the  contact  between  defendant's  car  and  the 
plaintiff,  the  driver's  attention  was  directed  to  the  inside  of  the  car 
to  make  change,  or  to  perform  any  other  duty  assigned  him  by 
defendant,  as  driver  of  its  car,  and  being  so  engaged  did  not  see  the 
plaintiff  on  the  track  in  time  to  avoid  the  injury  (the  accident  not 
happening  at  a  regular  or  usual  crossing),  such  failure  to  see  the 
plaintiff  under  these  circumstances  was  not  such  negligence  in  him 
as  would  render  defendant  liable  in  this  action."  The  defendant 
had  no  right  to  impose  on  the  driver  duties,  the  performance  of 
which  would  prevent  him  from  using  ordinary  care  to  avoid  injuring 
persons  or  property  on  the  track,  and  if  it  did  so,  while  that  fact 
might  be  an  excuse  in  morals,  so  far  as  the  driver  was  concerned, 
it  was  no  excuse  in  law  for  either  employer  or  employe,  when  sued 
by  a  third  person  for  negligence.  If  the  defendant  imposed  duties 
upon  the  driver  which  prevented  him  from  discharging  the  duty 
which  he  and  it  owed  to  the  public  to  use  ordinary  care  to  avoid 
injuring  others,  this  was  such  a  palpable  disregard  of  both  legal 
and  social  duty  as  was  little  short  of  criminality,  and  instead  of 
being  an  excuse  for  the  injury,  might  well  have  been  treated  as  an 
aggravation. 

Those  who  undertake  to  run  cars  upon  the  streets  of  a  populous 
city  are  bound  to  take  ordinary  care  to  avoid  injuring  persons  on 
the  streets;  and  if  one  person  cannot  perform  the  duties  of  both 
driver  and  conductor  so  as  not  to  endanger  the  safety  of  others 
who  have  as  much  right  as  the  owners  of  streets  cars  to  use  the 
streets,  they  should  employ  more  hands.  The  duty  to  avoid  injur}' 
to  persons  must  be  first  attended  to,  and  any  duty  imposed  by  the 
defendant  on  its  driver  which  interfered  with  that  paramount  duty 
is  in  and  of  itself  culpable  negligence.  Whatever  may  be  the  true 
doctrine  as  to  contributory  negligence  by  infants  suing  for  injuries 
resulting  from  the  alleged  negligence  of  the  defendant,  and  whether 
or  not  negligence  of  the  parent  in  allowing  a  child  devoid  of  discre- 
tion to  be  exposed  to  danger,  is  to  be  imputed  to  the  child,  the  de- 


Thomas  Martin,  et  al.,  v.  G.  B.  Taylor's  Adm'r.        559 

fendant  in  this  case  has  no  just  ground  to  complain  of  the  instruction 
upon  this  point.  The  court  told  the  jury  that  if  the  plaintiff  was  but 
three  or  four  years  of  age  and  was  permitted  to  go  upon  the  street 
unattended,  and  he  ran  upon  the  railway  in  front  of  the  car 
and  was  injured  in  consequence  of  having  thus  exposed  himself  to 
danger,  or  that  he  contributed  to  the  injury,  he  could  not  recover 
unless  the  driver,  notwithstanding  the  conduct  or  contributory 
negligence  of  the  plaintiff,  could,  by  the  use  of  reasonable  diligence, 
have  avoided  injuring  him.  It  was  certainly  the  duty  of  the  driver 
at  all  times  and  under  all  circumstances  to  use  reasonable  diligence. 
What  will  amount  to  such  diligence  in  one  case  may  be  culpable 
negligence  in  another,  the  amount  of  vigilance  and  precaution  re- 
quired to  constitute  reasonable  diligence  increasing  or  diminishing 
according  to  the  danger  to  be  apprehended. 

The  jury,  by  their  verdict,  determined  that  the  driver  did  not  use 
reasonable  diligence;  whether  the  failure  was  in  not  seeing  the 
plaintiff,  or  in  not  arresting  the  car  before  it  ran  upon  him,  is  imma- 
terial. The  defendant  was  liable  in  either  case.  If,  through  want  of 
proper  care,  the  driver  failed  to  see  the  plaintiff,  the  company  is 
liable  if  he  could,  by  reasonable  diligence,  have  seen  him  and 
avoided  the  injury;  and  this  the  jury  have  found;  or,  if  he  did  see 
him,  they  have  found  that  he  might,  by  reasonable  diligence,  have 
averted  the  injury,  notwithstanding  the  plaintiff  may  also  have  con- 
tributed to  the  injury.  We  are,  therefore,  of  opinion  that  the  court 
did  not  err  to  the  prejudice  of  the  appellant,  and  the  judgment  is 
affirmed. 

Mundy  &  Parsons,  for  appellant.    Gibson  &  Gibson,  for  appellee. 


Thomas  Martin,  et  al.,  v.  G.  B.  Taylor's  Adm'r. 

Execution  of  Note  on  Sunday — Statute. 

The  law  will  not  enforce  a  contract  made  in  violation  of  its  man- 
date. 

Statute— Defense. 

Under  a  statute  providing  that  "No  work  or  labor  should  be  done  on 
the  Sabbath  day  unless  the  ordinary  household  offices  of  daily  necesr 
sity,  or  other  work  of  necessity,  or  charity,"  held  that  no  recovery  can 
be  had  on  a  promissory  note  which  is  signed  and  delivered  by  the 
obligors  on  Sunday  and  that  fact  was  known  to  the  obligee  when 
he  accepted  it  on  Sunday. 


560  Kentucky  Opinions. 

APPEAL  FROM  ANDERSON  CIRCUIT  COURT. 

December  9,  1875. 

Opinion  by  Judge  Cofer  : 

This  was  a  suit  on  a  note  executed  by  the  appellants  to  the  ap- 
pellee's intestate.  The  appellants  answered,  "that  said  note  was 
made,  executed,  delivered  and  accepted  on  the  28th  of  May,  1871, 
which  was  the  Christian  Sabbath,  and  that  its  making,  delivery 
and  acceptance  on  said  Sabbath  day,  was  so  known  to  have  occurred 
and  been  done  on  said  day  by  said  G.  B.  Taylor."  They  aver  that 
neither  said  G.  B.  Taylor  nor  either  of  these  defendants  were  mem- 
bers of  any  religious  society  or  church  or  order  that  observed  any 
other  day  of  the  week  than  Sunday  or  the  Christian  Sabbath  as  a 
day  of  worship  and  rest. 

To  this  answer  a  demurrer  was  sustained,  and  the  only  question 
for  decision  is  whether  that  ruling  was  right.  In  Ray,  et  al.,  v, 
Catlett  &  Buck,  12  B.  Mon.  532,  the  question  whether  a  contract 
made  on  Sunday  was  enforcible  or  not  came  first  before  this  court. 
That  case  arose  under  the  act  of  1801,  Stat.  Laws  1275,  which  pro- 
vided that  if  any  person,  on  the  Sabbath  day,  should  himself  be 
found  at  his  own  or  any  other  trade  or  calling,  or  should  employ 
his  apprentices,  servants  or  slaves  in  labor  or  other  business, 
whether  for  profit  or  amusement,  except  the  ordinary  household 
offices  of  daily  necessity,  or  other  work  of  necessity  or  charity,  he 
should  be  deemed  guilty  of  a  public  oflFense.  In  construing  that 
statute  in  the  case  supra,  the  court  said :  "We  are  not  prepared  to 
decide  that  the  mere  execution  and  delivery  of  a  note,  or  its  mere 
acceptance,  on  Sunday,  is  laboring  in  any  trade  or  calling,  unless 
it  be  a  part  of  some  other  transaction  done  also  on  Sunday,  which 
may  be  regarded  as  labor  in  some  trade  or  calling.  And  if  the  mere 
execution  and  delivery  of  a  note  could  be  deemed  such  labor,  we  are 
satisfied  that  its  mere  acceptance  could  not,  and  the  person  accepting 
it  would  not  be  involved  in  any  consequence  of  a  breach  of  the  law 
by  the  other,  unless  he  knew  that  the  note  had  been  made,  as  well 
as  delivered  on  Sunday." 

As  it  did  not  appear  that  the  obligee  knew  when  he  accepted  the 
note  that  it  had  been  made  on  Sunday,  it  was  held  that  it  was  not 
void.  The  phraseology  of  the  Revised  Statutes,  in  force  wHien  the 
note  in  contest  was  executed,  differs  somewhat  from  that  of  the 
act  of  1 80 1.    The  latter  statute  provided  that  "No  work  or  labor 


Thomas  Martin,  et  al.,  v.  G.  B.  Taylor's  Adm'r.        561 

should  be  done  on  the  Sabbath  day,  unless  the  ordinary  household 
offices  of  daily  necessity,  or  other  work  of  necessity,  or  charity." 
I  Rev.  Stat.  400.  Under  the  Revised  Statutes,  whatever  could  be 
denominated  "wOrk  or  business"  was  prohibited  on  th-e  Sabbath  day, 
unless  it  was  the  ordinary  household  offices  of  daily  necessity,  or 
other  work  of  necessity  or  charity. 

It  was  accordingly  held  that  swapping  horses  on  Sunday  was 
within  the  statute,  although  it  did  not  appear  that  such  transactions 
were  of  the  trade  or  calling  of  either  of  the  parties.  Murphy  v. 
Simpson,  14  B.  Mon.  420.  In  Dohoney,  et  al,,  v.  Dohoney,  7  Bush 
217,  it  appeared  that  the  note  was  signed  on  a  Sunday  by  one  of 
the  obligors  while  it  was  in  the  hands  of  a  co-obligor;  but  it  did 
not  appear  when  it  was  delivered  to  the  obligee,  or  that  he  had  any 
knowledge  that  it  had  been  signed  on  Sunday,  or  had  participated 
in  any  violation  of  the  statute;  and  it  was  held  that,  according  to 
the  decision  in  Ray,  et  al.,  v,  Catlett  &  Buck,  and  other  decisions 
under  our  own,  and  similar  statutes  in  other  states,  on  the  subject, 
the  allegal  acts  of  the  obligors  in  the  note  did  not  affect  its  validity 
in  the  hands  of  the  obligee,  who  did  not  himself  violate  the  law. 

It  will  be  observed  that  in  Ray,  et  al.,  v.  Catlett  &  Buck,  it  is 
intimated  that  the  execution  and  delivery  of  a  note  on  Sunday  was 
a  breach  of  the  law ;  and  in  Dohoney  v.  Dohoney,  the  act  of  signing 
a  note  on  that  day  is  called  an  illegal  act.  As  it  did  not  appear  that 
the  obligee  knew  of  that  illegal  act  or  participated  in  it,  it  was  held 
that  he  did  not  himself  violate  the  law,  thus  plainly  intimating  that 
if  he  had  participated  in  the  execution  of  the  note  on  Sunday,  he 
would  have  violated  the  law,  and  the  note  would,  as  a  consequence, 
have  been  void. 

The  statute  declared  that  no  work  or  business  should  be  done 
on  Sunday,  and  it  is  impossible  to  say  that  when  one  person  has 
written  and  signed  a  note,  and  another  has  accepted  and  held  it  as 
evidence  of  an  indebtedness,  that  they  have  done  no  work  or  busi- 
ness on  that  day.  If  they  have  done  either,  the  statute  has  been 
violated.  Something  has  been  done  which  the  law  forbids,  and 
for  the  doing  of  which  a  penalty  is  denounced,  and  it  is  a  familiar 
principle  that  the  law  will  not  enforce  a  contract  made  in  violation 
of  its  mandate. 

It  having  been  averred  that  the  note  sued  on  was  signed  and  de- 
livered by  the  obligors  on  Sunday,  and  that  this  fact  was  known  to 
the  obligee  when  he  accepted  it,  and  that  he  not  only  thus  partici- 
pated in  the  illegal  act  of  the  obligors,  but  himself  violated  the 

36 


562  Kentucky  Opinions. 

statute  by  accepting  on  Sunday  a  note  he  knew  was  made  on  that 
day,  the  answer  presented  a  defense  to  the  action,  and  the  court 
erred  in  sustaining  the  appellee's  demurrer.  The  judgment  is 
reversed  and  the  cause  is  remanded  with  directions  to  overrule  the 
demurrer,  and  for  further  proceedings. 

Thomas  C.  Bell,  for  appellant,    D.  W.  Lindsey,  for  appellee. 


Robert  Abell,  et  al.,  v,  John  V.  Cartmell. 

Trustee — Infants — Purchase  of  Real  Estate  for  Infants. 

Where  one  member  of  a  family  buys  in  real  estate  for  all  at  a  low 
price  by  prevailing  on  other  prospective  buyers  not  to  bid  for  the  rea- 
son that  he  wanted  to  buy  to  protect  infants,  such  purchaser  becomes 
trustee  for  such  infants,  such  purchaser  has  a  lien  for  purchase  money 
advanced  by  him,  but  holds  the  title  for  the  benefit  of  the  infants  for 
whom  he  bought. 

Notice  of  Trust  by  Purchaser. 

One  who  buys  real  estate  from  the  holder  of  the  record  title  thereof, 
but  who  has  notice  that  his  grantor  holds  such  title  for  the  benefit  of 
infants,  takes  only  the  interest  of  the  grantor,  and  the  rights  of  such 
infants  are  not  affected  by  his  purchase. 

APPBAX,  FROM  UNION  COUNTY  COURT. 

December  10,  1876. 

Opinion  by  Judge  Lindsay: 

Mrs.  Abell  was  the  owner  in  fee  of  a  valuable  tract  of  land  in 
Union  County.  To  secure  the  payment  of  several  debts  owing  by 
her  husband,  she  joined  with  him  in  the  execution  of  mortgages 
upon  her  said  land. 

Actions  in  equity  were  instituted  to  enforce  these  mortgages,  and 
after  the  death  of  Mrs.  Abell,  and  after  her  children  and  heirs-at- 
law  had  been  made  parties  to  the  proceedings,  a  consolidated  judg- 
ment of  foreclosure  was  regularly  rendered.  At  the  sale  made  by 
the  commissioner  pursuant  to  that  judgment,  Phipps,  the  husband 
of  the  eldest  daughter  of  Mrs.  Abell,  purchased  the  entire  tract  of 
land  at  the  sum  of  $4,200,  less  than  one-half  its  value.  He  repre- 
sented at  the  time  to  various  persons  who  were  present  for  the 
purpose  of  bidding,  that  his  object  was  to  bid  the  land  in  for  the 
benefit  of  the  infant  children  of  Mrs.  Abell,  and  it  was  in  conse- 
quence of  these  representations  that  he  was  enabled  to  make  the 


Robert  Abell,  et  al.,  v.  John  V.  Cartmell.  563 

purchase  at  the  price  stated.  The  proof  shows  that  there  were 
bidders  present  who  would  have  paid  the  judgment  debts  for  about 
one-half  the  entire  tract. 

It  is  not  questioned  that  the  circumstances  attending  the  purchase 
of  Phipps  were  such  as  to  constitute  him  in  equity  a  trusee  for  the 
children  of  Mrs.  Abell.  Phipps  sold  and  conveyed  the  land  to  Cart- 
mell. After  the  death  of  the  former,  which  took  place  a  short  time 
after  the  sale  to  Cartmell,  seven  of  the  eight  children  of  Mrs.  Abell 
instituted  this  action  against  the  latter.  They  set  up  all  the  facts 
necessary  to  establish  the  existence  of  the  trust  upon  the  part  of 
Phipps,  and  charge  that  Cartmell  purchased  from  him  with  notice  of 
that  trust.  They  seek  to  have  their  equitable  rights  determined  and 
established,  and  pray  for  such  relief  as  the  circumstances  of  the 
case  entitle  them  to  receive. 

The  first  material  question  to  be  settled  is  whether  the  answer  of 
Cartmell  is  sufficient  to  put  in  issue  the  allegation  that  he  bought 
with  notice  of  the  equitable  rights  of  these  appellants,  as  against 
Phipps. 

The  allegation  of  the  petition  is  that  when  Phipps  made  said 
deed  to  Cartmell,  and  long  before  that,  he,  Cartmell,  knew  all  the 
fraudulent  facts  therein  stated  aforesaid,  and  knew  well  that  the 
land  thus  deeded  to  him  belonged  to  these  plaintiffs,  and  knew  that 
Phipps  had  bid  off  the  land  at  the  sale  aforesaid  for  these  plaintiffs' 
use  and  benefit,  as  aforesaid,  and  that  Phipps  was  holding  the  land 
in  trust  for  the  use  and  benefit  of  these  plaintiffs;  and  they  state, 
notwithstanding  defendant  Cartmell's  knowledge  of  the  facts,  and 
statements  herein  made  long  before  the  deed  was  made  by  Phipps  to 
him,  that  he,  Cartmell,  fraudulently  accepted  said  deed  and  took 
possession  of,  and  still  holds  possession  of  said  land. 

We  have  here  the  direct,  specific  and  unmistakable  averment  that 
Cartmell,  at  and  before  his  purchase,  knew  that  Phipps  had  bid  off 
the  land  for  the  plaintiffs'  use  and  benefit,  and  that  he  was  then  hold- 
ing it  in  trust  for  them.  It  is  referred  to  by  Cartmell  in  this  manner. 
He  denies  that  at  any  time  before  his  purchase  of  said  land,  and 
taking  the  legal  title  thereto,  or  paying  the  purchase  money  thereon, 
he  had  any  understanding  or  agreement  with  Phipps  concerning 
plaintiffs  or  their  right,  title  or  interest  in  said  land,  or  that  he  ever 
had  any  intimation  that  plaintiffs,  or  any  of  their  friends,  claimed 
any  right  or  interest  in  said  land,  or  any  part  or  parcel  in  Phipps' 
purchase ;  and  he  here  states  more  solemnly  that  never  until  after  the 
deed  to  Phipps,  and  in  the  latter  part  of  the  summer  of  1870,  did  he 


564  Kentucky  Opinions. 

ever  entertain  any  idea  of  purchasing  said  land,  and  even  then  the 
purchase  was  against  his  will  and  made  under  constraint  and  to  save 
a  debt,  and  keep  from  pressing  Phipps  on  a  debt  incurred  in  the 
spring  of  1870. 

The  substance  of  the  denial  thus  made  is  the  afiirmative  statement, 
that  he,  Cartmell,  had  no  understanding  or  agreement  with  Phipps 
concerning  the  right,  title  or  interest  of  the  appellants  in  the  land, 
and  that  he  had,  at  no  time,  had  an  intimation,  that  they,  or  any  of 
their  friends,  claimed  any  right  or  interest  in  it,  or  any  part  or 
parcel  of  the  purchase  made  by  Phipps.  It  may  be  true  that  he  had 
no  agreement  or  understanding  with  Phipps  on  the  subject  men- 
tioned, and  that  no  one  had  ever  intimated  to  him  that  appellants 
or  any  one  for  them  claimed  any  right,  title  or  interest,  in  the  land, 
or  in  the  purchase  made  by  Phipps ;  and  yet  he  may  have  known  that 
Phipps  bid  off  the  land  for  their  benefit,  and  was  at  the  time  of  his 
purchase  holding  the  title  in  trust  for  them.  If  he  had  knowledge 
of  either  of  these  facts,  he  had  information  enough  to  put  a  reason- 
ably prudent  man  upon  inquiry ;  and  his  agreements  or  understand- 
ing with  Phipps,  and  his  want  of  information  as  to  whether  the 
infant  brothers  and  sisters-in-law  of  Phipps,  were  claiming  under  a 
purchase  made  avowedly  for  their  benefit,  are  immaterial  matters. 
Wallaces  v,  Marshall,  et  al,  9  B.  Mon.  156;  Strong's  Equity  Juris- 
prudence (2d  ed.)  400. 

As  the  proof  established  the  existence  of  all  the  facts  necessary  to 
constitute  Phipps  a  trustee  for  the  appellants,  and  as  the  material 
averment  that  Cartmell  purchased  from  him  with  notice  of  the  trust, 
is  not  sufficiently  controverted  by  the  answer,  it  results  that  the 
judgment  dismissing  the  petition  of  appellants,  and  thus  denying 
them  relief  of  any  kind,  cannot  be  maintained. 

But  as  the  parties  to  the  action,  as  well  as  the  circuit  court,  seem 
to  have  regarded  the  answer  as  good ;  as  the  cause  was  tried  and 
disposed  of  upon  its  merits ;  and  as  the  deposition  of  Cartmell  shows 
that  he  is  able  and  willing  to  make  the  denial  sufficient,  and  then  to 
verify  his  answer  upon  the  return  of  the  cause ;  he  should  be  allowed 
to  amend,  unless  appellants  are  entitled  to  relief  upon  the  proof, 
without  regard  to  the  defect  in  appellee's  pleading. 

In  the  determination  of  this  issue,  we  will  waive  the  decision  of 
the  question  raised  as  to  the  competency  of  Cartmell  as  a  witness, 
and  consider  his  testimony  as  that  of  a  party  to  an  acticm  legally 
qualified  to  testify. 

Peter  Abell,  the  father  of  the  appellants,  who  has  no  pecuniary 


Robert  Abell,  et  al.,  v,  John  V.  Cartmell.  565 

interest  in  the  matter  in  litigation,  swears  that  some  time  in  the 
interval  between  the  purchase  by  Phipps  and  the  sale  to  Cartmell, 
he  told  the  latter  that  Phipps  had  bought  the  land  at  the  commis- 
sioner's sale  for  his  (Abell's)  children.  He  thinks  this  conversa- 
tion took  place  two,  three  or  probably  four  months  before  the 
purchase  by  Cartmell.  In  a  second  deposition,  and  after  Cartmell 
had  given  his  deposition  and  testified  to  facts  inconsistent  with  some 
of  the  circumstances  detailed  by  Abell  when  first  sworn,  he  says  he 
is  satisfied  that  the  conversation  was  had  with  Cartmell  earlier  in 
the  year  of  1870  than  he  had  first  stated.  He  says  that  it  took  place  in 
an  upper  room  in  the  storehouse  of  Cartmell,  he  thinks  as  early  as 
April,  and  states  that  persons  were  at  the  time  sitting  around  the 
stove  in  the  lower  or  principal  storeroom. 

Cartmell  swears  positively  that  he  had  never  heard  from  any  one 
before  he  purchased  from  Phipps,  that  the  latter  had  purchased  the 
land  for  the  Abell  children.  He  does  not  deny  that  Peter  Abell  had 
the  alleged  conversation  with  him,  but  says  that  it  was  had  in 
October,  1870,  more  than  a  month  after  Phipps  had  conveyed  to 
him.  There  is  testimony  in  the  record  conducing  in  some  degree  to 
show  that  Cartmell  is  right  as  to  the  time  the  conversation  took 
place.  He  did  not  commence  to  occupy  the  storehouse  till  the  latter 
part  of  May,  1870.  His  clerks  recollect  that  he  and  Peter  Abell  did 
have  an  interview  in  the  upper  room  in  October,  1870.  They 
swear  that  Abell  was  not  at  the  storehouse  after  Cartmell  took  pos- 
session in  May,  1870,  except  in  August  and  October  of  that  year. 

Some  stress  is  put  upon  the  fact  that  Abell  speaks  of  the  store- 
house as  "his,"  Cartmeirs,  house. 

Although  Cartmell  did  not  commence  business  until  late  in  May, 
1870,  the  storehouse  was  open,  and  mercantile  business  was  being 
carried  on  in  it  in  April,  1870,  by  a  brother  of  appellee,  whom  he 
afterwards  succeeded  in  business.  It  is,  therefore,  neither  impos- 
sible nor  improbable  that  the  interview  in  the  upper  room  of  the 
storehouse  may  have  taken  place  in  April,  although  Abell  may  have 
mistakenly  spoken  of  the  house  as  "his,"  appellee's.  If  it  took  place 
in  the  latter  part  of  May,  when  appellee  was  in  possession  of  the 
house,  it  does  not  necessarily  follow  that  Abell  is  mistaken  in  sajdng 
or  intimating  that  there  was  fire  in  the  stove.  Such  a  circumstance 
is  not  so  improbable  as  to  be  regarded  as  conclusive  of  a  question 
growing  out  of  a  difference  of  recollection  as  to  daite. 

It  is  doubtless  true  that  the  clerks  have  no  recollection  of  seeing 
Abell  at  the  storehouse  in  1870  except  in  August  and  October,  and 


566  Kentucky  Opinions. 

it  is  very  probable  that  neither  they,  nor  either  of  them,  did  see  him 
at  any  other  time,  and  this  is  the  most  they  prove.  That  Abell  speaks 
of  the  storehouse  as  "his,"  Cartmell's,  house,  is  a  matter  entitled  to 
but  little  weight.  Abell  says  that  he  was  in  the  upper  room  of  the 
storehouse  on  several  occasions  during  the  year  1870,  and  that  one 
of  them,  the  time  at  which  he  informed  Cartmell  of  the  facts  attend- 
ing the  purchase  of  the  land  by  Phipps,  was  as  early  or  earlier  than 
the  month  of  May. 

When  the  accuracy  of  the  recollection  of  Abell  and  Cartmell  as  to 
dates  is  tested,  it  will  be  seen  that,  at  the  least,  the  one  is  as  liable  to 
be  mistaken  as  the  other.  In  his  deposition  given  on  the  Sth  day  of 
April,  1872,  Cartmell,  speaking  of  his  interview  with  Abell  on 
October  18,  1870,  says,  "This  was  the  first  time  that  I  ever  heard 
it  intimated  that  the  Abell  heirs  or  Peter  Abell  claimed  that  George 
Phipps  owed  them  for  anything,  or  that  they  were  interested  in  the 
purchase  of  the  land  in  any  way."  In  his  depositicMi  g^ven  on  the 
1 2th  day  of  September,  1872,  he  says  "that  the  first  person  who 
told  him  that  Phipps  had  purchased  for  the  Abell  children  was  I.  A. 
Spalding.  He  told  me  something  about  it  in  my  storehouse.  I 
don't  remember  the  date  exactly.  I  think  Mrs.  Spalding  was  the 
first  person  that  ever  told  me  anything  about  it."  In  one  or  the 
other  of  these  statements  the  memory  of  the  witness  was  evidently 
at  fault. 

Without  undertaking  to  decide  whether  Abell,  who  has  no  actual 
pecuniary  interest  in  the  matters  in  controversy,  or  Cartmell,  who 
has,  is  most  likely  to  have  recollected  aright  as  to  the  date  of  an 
admitted  interview,  we  will  examine  into  the  circumstances  in  proof, 
outside  of  Abell's  evidence  tending  to  show  that  Cartmell  bought 
with  notice  of  the  trust. 

Phipps  was  the  brother-in-law  of  these  appellants,  who,  with 
his  wife,  were  the  owners  in  fee  of  the  land  when  sold  by  the 
commissioner.  They  were  infants  at  the  time  of  the  sale.  Phipps 
purchased  the  land  for  less  than  one-half  of  its  value.  These  facts 
were  all  known  to  Cartmell  at  and  before  the  time  of  his  purchase 
from  Phipps.  Cartmell  became  the  surety  of  Phipps  on  the  bonds 
he  was  required  to  execute  to  the  commissioner  who  sold  the  land. 
At  the  time  of  the  sale  and  the  execution  of  these  bonds,  he  was 
engaged  in  business,  with  Phipps  as  his  partner. 

Taking  all  these  facts  into  consideration,  and  giving  due  weight 
to  the  further  fact  that  Cartmell  was  fully  apprised  of  the  value  of 
the  land,  of  the  price  paid  by  Phipps,  and  of  the  rdationship  exist- 


Robert  Abell,  et  al.,  v.  John  V.  Cartmell.  567 

ing  between  him  and  the  infant  owners  at  the  time  of  the  sale  and 
purchase,  it  is  aUnost  impossible  to  escape  the  conclusion  that  Cart- 
mell had  some  information  touching  those  facts  connected  with  the 
purchase,  and  converting  Phipps  into  a  trustee,  which,  to  say  the 
very  least,  were  known  to  every  bidder  present  at  the  time  and  place 
the  sale  and  purchase  were  made.  The  legitimate  and  rational  de- 
duction from  established  facts  is  strengthened  by  the  fact  that  there 
were  good  and  sufficient  reasons  to  induce  Cartmell  to  make  the 
purchase  from  Phipps,  notwithstanding  his  knowledge  of  the  trust. 

Phipps  was  indebted  to  him  in  a  sum  exceeding  six  thousand 
dollars.  His  health  was  failing  rapidly,  and  the  agreed  facts  in  the 
record  show  that  witnesses  would  prove  that  Phipps  was  insolvent 
at  the  time  he  bought  the  land  at  the  commissioner's  sale,  and  also 
growing  worse  at  the  time  he  sold  the  land  in  contest  to  Cartmell. 
Appellee,  in  one  of  his  depositions,  attempts  to  show  that  he  might 
have  secured  his  debt  on  Phipps  without  purchasing  the  land;  but 
in  his  answer  he  says  that  the  purchase  was  against  his  will,  and 
made  under  constraint  to  secure  a  debt,  and  keep  from  oppressing 
Phipps  on  a  debt  incurred  in  the  spring  of  1870. 

The  legitimate  inference  to  be  drawn  from  these  facts,  all  of 
which  are  either  uncontroverted  or  satisfactorily  proved,  is  that 
Cartmell  had  notice  of  the  equity  of  these  appellants,  and  that 
he  purchased  notwithstanding  that  notice,  because  the  purchase  was 
the  most  available  means  by  and  through  which  to  save  a  doubtful 
claim  against  an  insolvent  and  dying  debtor.  Against  this  con- 
clusion we  have  the  evidence  of  Cartmell;  but  he  is  met  with  the 
evidence  of  Peter  Abell,  who  swears  that  he  in  person  notified  him 
of  the  claim  which  the  appellants  are  now  asserting,  long  before 
the  date  of  his  purchase. 

We  are  constrained  to  adjudge  that  appellants  have  made  out  a 
case  entitling  them  to  relief.  The  character  of  that  relief  we  will 
now  indicate.  Thev  are  not  entitled  to  rents.  Peter  Abell,  the  father 
of  appellants,  was  entitled  to  a  life  estate  in  the  lands;  that 
estate  went  to  Phipps  under  his  purchase  from  the  commissioner. 
The  law  will  not  hold  Phipps  bound  as  trustee  for  the  benefit  of 
these  appellants,  other  than  to  secure  to  them  such  interest  as  that 
they  held  in  the  land  when  sold,  subject  to  the  paying  of  the  judg- 
ment debt.  It  may  have  been  error  to  sell  any  part  of  their  estate 
in  remainder  until  it  had  first  been  ascertained  that  their  father's 
life  estate  would  not  sell  for  a  sum  sufficient  to  satisfy  the  mortgage 
debts,  but  that  error  cannot  now  be  corrected. 


568  Kentucky  Opinions. 

As  Cartmell  cannot  be  compelled  to  account  for  rents,  neither 
should  he  be  allowed  interest  on  the  sum  bid  by  Phipps  for  the  land. 
Cartmell  owns  under  the  conveyance  from  Phipps  and  wife,  the 
interest  that  descended  to  Mrs.  Phipps,  being  an  undivided  one- 
eighth  of  the  land.  He  holds  a  lien  on  the  entire  tract  to  secure  the 
judgment  of  $4,209.18,  the  sum  bid  by  Phipps  at  the  decretal  sale. 

On  the  return  of  the  cause,  the  chancellor  will  adjudge  a  sale  of 
so  much  of  the  land  as  may  be  necessary  to  pay  said  sum.  In  so 
much  of  the  tract  as  it  may  not  be  necessary  to  sell,  the  seven  ap- 
pellants and  Cartmell  will  each  own  an  undivided  one-eighth  in- 
terest, subject  to  the  life  estate  of  Peter  Abell,  which  is  and  will 
remain  the  property  of  Cartmell.  The  appellants  will  be  entitled 
to  their  costs  in  this,  and  in  the  circuit  court. 

We  have  not  considered  the  store  bills  due  from  Peter  Abell  or 
his  wife  to  Phipps.  If  they  were  Peter  Abell's  debts,  Cartmell  gets 
the  benefit  of  them,  to  the  extent  that  the  life  estate  of  the  debtor 
in  the  land  in  controversy  is  valuable.  If  they  were  not  so  evidenced 
as  to  make  a  charge  upon  her  separate  estate,  her  children  cannot  be 
compelled  to  pay  them. 

The  judgment  appealed  from  is  reversed  and  the  cause  remanded 
for  further  proceedings  consistent  with  the  principles  of  this  opinion. 

K.  Chapezc,  /.  S.  Taylor,  W.  P.  Z>.  Bush,  for  appellants, 
John  Rodman,  Casxvell  Bennett,  D.  H.  Hughes,  for  appellees. 


Louisville  &  Nashville  R.  Co.  v.  D.  W.  Sanders,  et  al. 

Same  v.  Wade. 

Damages — Vindictive  Damages. 

Where  the  shippers  of  live  stock,  under  the  rules  of  the  railroad 
company,  are  only  entitled  to  passes  for  one  attendant  for  each  twa 
cars  of  live  stock  shipped,  but  who  were  ignorant  of  such  rule»  and 
are  given  passes  by  the  agent  of  the  company  for  a  greater  num- 
ber of  attendants  than  allowed  by  such  rule,  which  are  not  recognized 
by  the  conductor  of  the  company's  train,  who  without  rudeness  or 
force  requires  such  extra  passengers  to  get  oflC  the  train,  the  company 
is  liable  to  them  for  their  actual  damages  caused  by  being  put  off,  but 
the  company  is  not  liable  for  vindlctiire  damages. 


Louisville,  etc.,  R.  Co.  v.  D.  W.  Sanders,  et  al.         569 

APPEAL  FROM  SIMPSON  CTIRCUIT  COURT. 

October  12,  1875. 

Opinion  by  Judge  Pryor: 

These  two  cases,  involving  the  same  questions,  will  be  con- 
sidered together. 

There  is  no  evidence  in  either  of  the  records  authorizing  the  jury 
to  give  vindictive  damages,  or  upon  which  an  instruction  was  proper 
requiring  such  a  finding.  It  is  evident  that  the  agent  of  the  appel- 
lant at  Franklin  violated  the  rules  of  the  company  in  permitting 
each  of  the  appellees  to  carry  with  them,  free  of  charge,  an  ad- 
ditional passenger  on  the  freight  train  transporting  their  stock.  The 
evidence  conduces  to  show  that  the  conductor  of  the  freight  train, 
on  which  these  appellees  were  passengers,  when  attempting  to  en- 
force the  regulations  of  the  company  in  requiring  the  extra  passen- 
gers to  get  off  the  train  or  pay,  believed  he  was  acting  in  the  dis- 
charge of  his  duty  to  his  employers.  It  does  not  appear  that  he 
entertained  any  malice  or  ill  will  toward  either  of  the  appellees,  or 
that  he  had  any  cause  for  doing  them  an  intentional  injury.  He  was 
positive  in  the  assertion  that  they,  or  the  parties  with  them,  must 
leave  the  cars  or  pay  the  usual  fare ;  and  the  appellees  were  equally 
as  firm  in  their  determination  to  ride  free  of  charge,  by  reason  of 
the  pass  given  them  by  the  company's  agent  at  Franklin. 

Such  trains  are  not  carriers  of  passengers,  and  when  the  con- 
ductor found  those  upon  the  train  who  were  there  as  passengers,  or 
at  least  in  violation  of  the  rules  of  the  company,  it  was  not  only 
his  privilege,  but  his  duty,  to  know  by  what  authority  they  claimed 
the  right  to  travel  on  his  train.  There  was  no  abusive  or  insulting 
language  used,  or  physical  force  resorted  to,  in  order  to  remove  ap- 
pellees from  the  train ;  but  the  latter,  concluding  either  that  they  had 
no  right  to  be  upon  the  train,  or  that  they  would  leave  the  cars 
and  look  to  the  law  for  redress,  left  the  train,  and  shortly  after 
instituted  these  actions.  Some  of  the  witnesses  state  that  the  con- 
ductor appeared  in  the  car  where  the  appellees  were,  accompanied 
by  two  or  more  of  the  hands  on  the  road ;  but  it  also  appears  that 
this  was  the  car  in  which  they  remained  when  not  on  duty;  and 
besides,  there  is  no  testimony  showing  that  they  took  any  part  in 
the  dispute  between  the  conductor  and  appellees. 

The  facts  indicate  clearly  that  the  conductor,  in  good  faith  and 
without  any  malice  or  desire  to  injure  appellees,  announced  to  them 
that  they  must  leave  the  car  or  compensate  the  company  for  carry- 


570  Kentucky  Opinions. 

iiig  them;  and  on  the  other  hand,  it  is  equally  as  certain  that  the 
appellees  believed  they  had  the  right  to  pass  over  the  road  by  reason 
of  the  pass  or  ticket  issued  to  them  by  the  company's  agent.  This 
freight  agent  at  Franklin  had  given  them  what  is  denominated  a 
free  pass  or  ticket  to  go  with  their  stock  on  the  freight  train  to 
Lx}uisville,  and  not  only  so,  but  to  take  with  them  each  an  assistant. 
By  the  regulations  of  the  company,  one  person  only  is  entitled  to 
go  with  two  cars  of  stock,  and  two  with  three  cars,  etc.  These 
parties  had  only  two  cars  of  stock  each,  and  had  no  right  to  an 
extra  hand.  They,  however,  were  not  in  fault,  unless  they  knew 
when  they  accepted  this  free  ticket  that  the  agent  had  no  authority 
to  give  it.  The  party  signing  the  pass  was  the  general  freight  agent 
of  the  appellant  at  Franklin,  the  point  from  which  the  stock  was 
shipped,  and  the  present  litigation  is  to  be  attributed  to  his  derelic- 
tion of  duty  in  disregarding  the  rules  of  the  company.  He  had  full 
authority  to  make  contracts  for  the  transportation  of  live  stock,  and 
by  the  regulations  of  the  company,  the  owners  of  stock,  or  their 
agents,  were  permitted  to  go  upon  these  freight  trains,  but  not 
more  than  one  person  with  two  cars. 

As  between  the  company  and  the  agent,  these  rules  must  govern, 
but  as  to  third  parties  who  contract  with  this  general  agent  within 
the  scope  of  his  authority,  or  in  regard  to  that  character  of  business 
he  was  authorized  to  execute  or  transact  for  the  company,  the  fact 
that  he  had  disregarded  its  rules  and  regulations  in  the  transaction 
of  this  business,  will  not  shield  the  company  from  the  claims  of 
those  Who,  in  good  faith,  have  trusted  the  agent  in  making  con- 
tracts with  him  about  matters  within  the  scope  of  his  employment. 
Although  the  prices  for  freight  may  be  regelated  and  fixed  by  the 
company,  as  well  as  the  number  of  hands  the  owner  is  entitled  to 
have  on  the  trains  with  his  stock,  still,  if  the  agent  who  had  been 
invested  with  the  authority  to  make  these  contracts  should  agree  to 
transport  live  stock  or  other  freight  for  a  less  price  than  authorized 
by  the  company,  or  should  permit  more  than  one  person  to  accom- 
pany two  cars  of  stock,  it  is  too  late,  after  the  stock  and  its  owners 
are  upon  the  trains  and  the  contract  of  the  carrier  being  executed, 
for  the  company  to  say  that  the  agent  with  whom  the  parties  con- 
tracted had  no  authority  to  make  such  a  contract,  without  showing 
that  those  dealing  with  the  agent  knew  of  his  bad  faith  toward  the 
company.  In  the  absence  of  this  knowledge,  the  agent,  so  far  as 
his  acts  are  to  affect  the  parties,  must  be  regarded  as  vested  with  the 
right  to  bind  his  principal  with  reference  to  his,  the  duties  that  the 


Louisville,  etc.,  R.  Co.  v,  D.  W.  Sanders,  et  al.         571 

agent  must  necessarily  discharge  by  reason  of  his  employment: 
**The  principal  is  bound  by  all  the  acts  of  his  agent,  within  the 
scope  of  the  authority  which  he  holds  him  out  to  the  world  to  pos- 
sess, although  he  may  have  given  him  more  limited  private  instruc- 
tions unknown  to  the  persons  dealing  with  him."  Story  on  Agency, 
PP-  153-154,  and  note. 

The  only  question  for  the  jury  to  determine  on  the  facts  of  this 
case  in  order  to  make  the  appellant  liable,  is,  Did  the  appellees  know 
when  they  made  this  contract  with  the  appellant's  agent  at  Frank- 
lin, that  he  was  violating  the  rules  of  the  company  in  permitting  two 
persons  to  go  upon  the  cars  with  stock  instead  of  one.  There  is  no 
question  but  what  such  an  agreement  or  contract  was  made  with  the 
agent,  and  that  in  making  it  he  transcended  his  authority  and  dis- 
regarded the  rules  of  the  company.  If  the  appellees  were  ignorant 
of  the  rules  of  the  company,  having  made  the  contract  in  good  faith, 
they  are  entitled  to  recover  damages  by  way  of  compensation,  and 
nothing  more.  This  is  no  case  for  punitive  damages.  Although  the 
fault  is  to  be  attributed  to  appellant's  agent,  there  is  neither  malice, 
oppression  or  such  aggravating  circumstances  connected  with  this 
case,  as  to  require  punishment  to  be  inflicted  upon  appellant  in  the 
way  of  damages.  One  of  appellant's  agents  had  contracted  with  the 
appellees  for  the  passage  of  the  latter  and  their  employes  from 
Franklin  to  Louisville,  and  another  agent  of  the  company,  acting  in 
good  faith  and  for  the  reason  that  the  contract  of  the  first  agent  was 
in  direct  violation  of  the  rules  of  the  company,  refused  to  carry 
them ;  and  upon  this  refusal,  and  the  declaration  that  they  or  those 
in  their  employ  must  get  off  the  train  or  pay,  the  appellees  left  the 
cars. 

Although  this  case,  as  made  out,  may  be  regarded  as  a  tort, 
there  is  really  but  little  difference,  so  far  as  the  question  of  dam- 
ages is  concerned,  between  the  action  as  instituted  and  an  action 
on  the  contract  for  failing  to  carry  the  appellees  to  Louisville,  as  the 
company  had  agreed  to  do  by  its  agent.  All  that  the  appellees  are 
entitled  to  recover  is  for  the  actual  injuries  sustained.  "There  are 
many  cases  of  tort  where  no  question  of  fraud,  malice  or  oppression 
intervenes,  and  in  these  cases  the  measure  of  compensation  is  a  mat- 
ter of  law.  In  actions  of  tort,  where  there  has  been  no  wilful  in- 
jury, the  plaintiff  can  only  recover  the  damages  necessarily  result- 
ing from  the  act  complained  of."  The  rule  is,  that  where  gross 
fraud,  malice  or  oppression  appears,  the  jury  are  not  bound  to  ad- 
here to  the  strict  line  of  compensation,  but  may,  by  a  severe  verdict, 


57^  Kentucky  Opinions. 

at  once  impose  a  punishment  on  the  defendant  and  hold  up  an  exam- 
ple to  the  community.  Sedgwick  on  the  Measure  of  Damages,  pages 
475,  476  and  477  and  notes  annexed.  If  this  was  not  the  principle  by 
which  this  case  is  to  be  determined,  the  question  of  interest  on  the 
part  of  the  agent  charged  with  the  commission  of  the  wrong,  must 
necessarily  tend  to  mitigate  the  damages.  He  acted  in  the  consist- 
ent discharge  of  his  duty  to  his  employes,  and  inflicted  no  personal 
violence  upon  either  of  the  appellees,  nor  did  anything  else  than  to 
inform  them  in  a  positive  manner  that  the  regulations  of  tlie  com- 
pany must  be  obeyed. 

A  verdict  of  $2,000,  in  such  a  state  of  case,  cannot  be  sustained ; 
but  on  the  contrary,  the  appellees  must  be  confined  in  their  recovery 
to  compensation,  as  the  facts  now  appear.  The  loss  of  time  they 
sustained,  as  well  as  the  extra  expense  incurred,  if  any,  by  having 
to  go  upon  other  trains,  may  be  considered  in  estimating  the  dam- 
ages. The  evidence  shows  that  they  left  the  train  at  or  near  a  depot 
where  they  found  a  passenger  train,  upon  which  they  took  passage 
for  Louisville.  It  was  improper  to  permit  testimony  to  be  intro- 
duced as  to  the  condition  of  the  cattle,  there  being  no  such  claim 
alleged  in  their  petition.  Most  of  the  instructions  were  given  upon 
the  idea  that  the  appellees  were  entitled  to  recover  punitive  dam- 
ages, and  were,  therefore,  erroneous.  If  the  freight  agent  of  the 
company  at  Franklin  gave  to  the  appellees  and  those  with  them  a 
pass  to  go  with  appellees*  cattle  free  of  charge,  and  appellees  were 
ignorant  of  the  fact  that  the  agent  was  violating  the  rules  df  the 
company,  they  are  entitled  to  recover  the  damages  to  be  confined 
alone  to  compensation.  It  is  admitted  or  shown  by  appellant's  own 
proof  that  the  agent  at  Franklin  was  the  general  freight  agent  of 
the  company  at  that  place,  and  that  he  signed  the  permit  or  pass 
by  virtue  of  which  these  appellees  undertook  to  ride  upon  appel- 
lant's cars.  The  two  judgments  are  rez^ersed,  and  cause  remanded 
with  directions  to  award  the  appellant  a  new  trial,  and  for  further 
proceedings  consistent  with  this  opinion. 

R,  Rodes,  Russell  Hanston,  for  appelhnt, 
W,  P,  D.  Bush,  for  appellees. 


Commonwealth  v,  David  May,  et  al.  573 

Commonwealth  v.  David  May,  et  al. 

Same  v,  Lott,  et  al. 

Same  v.  Brown  &  Kennedy. 

Criminal  Law — Indictment — Grand  Juror. 

It  is  error  in  the  court  to  set  aside  an  indictment  because  of  the  fact 
that  one  of  the  grand  jurors  by  whom  it  was  returned  was  under  the 
statute  incompetent. 

Appeals. 

The  statute  limiting  the  right  of  appeal  to  the  court  of  appeals  to 
cases  where  the  amount  involved  in  the  Judgment  is  less  than  fifty 
dollars,  has  no  application  to  criminal  cases. 

APPEAL  FROM  THE  HARDIN  CIRCUIT  COURT. 

January  6,  1876. 

Opinion  by  Judge  Lindsay  : 

The  court  below  erred  in  setting  aside  the  indictments  in  these 
prosecutions.  The  fact  that  one  of  the  grand  jurors  by  whom  they 
were  returned  was,  under  the  statute,  incompetent,  did  not  authorize 
that  action.  Commonwealth  v,  Patrick,  Mss.  Opinion;  Common- 
7vealth  V.  Smith,  et  al.,  10  Bush  476. 

This  court  has  jurisdiction  of  these  appeals.  The  penalty  pre- 
scribed by  the  statute  for  selling  or  giving  intoxicating  liquor  to  a 
minor  without  proper  authority  is  a  fine  of  fifty  dollars.  Section  I, 
Art.  22,  Chap.  28,  General  Statutes,  provides  that  "the  court  of  ap- 
peals shall  have  appellate  jurisdiction  over  the  final  orders  and 
judgments  of  all  other  courts  of  this  commonwealth,  unless  other- 
wise provided  herein."  Sec.  2,  of  the  same  article  and  chapter,  pro- 
vides that,  "no  appeal  shall  be  taken  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  costs." 

We  have,  heretofore,  expressed  the  opinion  and  acted  upon  the 
idea  that  these  provisions  did  not  apply  in  criminal  proceedings; 
but  upon  reconsideration,  we  are  convinced  that  the  language  of 
Sec.  I  is  comprehensive  enough  to  embrace  all  proceedings,  criminal 
and  penal  as  well  as  civil. 

Judgment  reversed. 

T.  E.  Moss,  for  appellant. 


574  Kentucky  Opinions. 

SmITHERS  &  HiGDON  V.  COMMONWEALTH. 

Criminal  Law — Intoxicating  Liquors — Sale  by  Druggists. 

Compounds  of  medicines  with  alcoholic  liquors,  made  in  good  faith 
as  medicines  for  medical  use  and  not  as  a  device  to  avoid  the  law 
regulating  or  prohibiting  the  sale  of  liquors,  are  not  prohibited  by 
the  law,  and  a  druggist  may  make  and  sell  them  for  use  as  medicine 
without  violating  the  law. 

APPEAL  FROM  GRAYSON  CIRCUIT  COURT. 

January  7,  1876. 

Opinion  by  Judge  Cofer  : 

The  second  instruction  given  by  the  court  made  the  guilt  of  the 
defendants  depend  alone  on  the  question  whether  they  mixed  ardent 
spirits  with  drugs  and  sold  the  compound  to  be  drunk  on  or  adjacent 
to  the  premises  where  sold.  It  is  a  fact  of  which  courts  may  take 
judicial  cognizance  that  many  medicines  made  and  sold  as  such  and 
in  good  faith  are  compounded  with  alcoholic  liquors.  If  such  com- 
pounds are  made  and  sold  in  good  faith  as  a  medicine,  and  not  as  a 
device  to  avoid  the  laws  regulating  or  prohibiting  the  sale  of  liquors, 
the  seller  commits  no  offense.  Anderson  v.  Commonwealth,  9  Bush 
569.  Whether  the  appellants  were  hona  fide  druggists  and  the  article 
proven  to  have  been  sold  by  them  was  sold  in  good  faith  to  be  used 
as  a  medicine,  or  was  compounded  and  sold  in  that  form  as  a  mere 
device  for  eluding  the  legal  consequences  of  selling  liquors  in  viola- 
tion of  law,  should  have  been  submitted  to  the  jury  by  proper  in- 
structions. 

If  the  appellants  were  not  bona  fide  druggists,  or  intended  what 
they  sold  to  be  used  as  a  beverage,  or  knew  that  it  was  being  so  used 
by  those  to  whom  they  sold  it,  they  are  guilty  of  a  violation  of  law ; 
but  if  they  w^ere  such  druggists,  and  in  good  faith  believed  the  com- 
pound had  useful  medicinal  properties,  and  sold  it  as  medicine  with- 
out intending  to  evade  or  violate  the  law,  and  sold  it  only  to  such 
persons  as  they  believed  desired  it  as  a  medicine,  and  not  because  it 
contained  spirituous  liquors,  they  should  be  acquitted.  Any  other 
rule  would  encroach  upon  the  legitimate  sphere  of  the  druggist, 
and  improperly  interfere  with  the  necessities  of  those  who  may  be 
sick.   No-  other  error  is  perceived. 

Wherefore  the  judgment  is  reversed,  and  the  cause  is  remanded 
for  a  new  trial  upon  principles  not  inconsistent  with  this  opinion. 

Robbins  &  Haynes,  Conklin  &  McBeath,  for  appellants. 
T,  E,  Moss,  for  appellee. 


J.  L.  Vandivier,  et  al.,  v.  Winchester  B'ld'g,  etc.,  Ass'n.    575 

J.  L.  Vandivier,  et  al.,  v.  Winchester  Building  &  Accumulat- 
ing Fund  Association. 

Usurious  Interest — ^Who  May  Recover. 

Usurious  interest  paid  can  only  be  recovered  by  the  person  who 
pays  it.  A  surety  when  sued  upon  a  note  cannot  plead  usury  paid  by 
his  principal  either  as  a  set-off  or  counterclaim. 

APPEAL  FROM  CLARK  CIRCUIT  COURT. 

January  10,  1876. 

Opinion. 

Usurious  interest  paid  can  only  be  recovered  back  by  him  who 
paid  it.  Consequently  a  surety,  when  sued  upon  a  note,  cannot  plead 
usury  paid  by  his  principal  on  the  note  as  either  a  set-off  or  counter- 
claim. He  may  plead  it  as  partial  payment,  and  in  that  way  get  the 
benefit  of  the  payment,  but  it  devolves  on  him  to  prove  the  alleged 
payment;  and  if  he  offers  no  evidence  to  sustain  the  allegations 
of  his  answer,  and  the  cause  is  submitted  on  the  pleadings,  judg- 
ment must  be  rendered  for  the  plaintiff  for  the  full  amount  of  the 
debt  sued  for,  if  the  alleged  payment  of  usury  be  the  only  defense. 
Nor  will  the  burden  of  proof  be  thrown  upon  the  plaintiff  by  an 
allegation  in  the  answer  that  the  fact  of  payment  of  usury  is  within 
the  knowledge  of  the  plaintiff  alone. 

The  rule  of  chancery  practice  which  casts  upon  a  party  the  proof 
of  facts  alleged  or  presumed  to  be  exclusively  within  his  knowledge, 
did  not  devolve  upon  the  complaining  party  the  duty  to  disprove 
a  matter  of  avoidance  pleaded  in  the  answer.  The  note  sued  upon 
made  out  the  plaintiff's  case,  and  if  the  defendant  wished  to  reach 
the  plaintiff  and  compel  disclosures  in  support  of  the  defense,  h€ 
should  have  taken  the  course  pointed  out  by  the  code  of  practice, 
or  have  taken  the  depositions  of  its  officers.  The  court  had  power 
to  set  aside  the  submission  and  allow  further  preparation,  but  we 
are  unable  to  see  that  there  was  any  abuse  of  discretion  in  not  do- 
ing so. 

The  record  of  the  term  does  not  show  upon  what  ground  the  mo- 
tion to  set  aside  the  submission  was  based,  but  this  appears  in  the 
proceedings  of  the  next  term.  The  ground  relied  upon  as  appears 
by  the  affidavit  of  the  appellant  was  that  the  cause  was  prematurely 
submitted  by  mistake  of  his  counsel,  but  in  what  that  mistake  con- 
sisted is  not  stated.  We  infer,  however,  that  the  mistake  referred 
to  was  the  belief  of  counsel  that  the  answer  contained  a  set-off  or 


576  Kentucky  Opinions. 

counterclaim.  This  court  cannot  say  that  there  is  error  in  refusing 
to  set  aside  a  submission  because  one  of  the  parties  has  misinter- 
preted his  own  pleading.  There  may  possibly  be  cases  in  which 
such  a  course  would  be  proper,  but  we  can  hardly  imagine  one  in 
which  this  court  would  reverse  the  judgment  of  an  inferior  court 
for  refusing  to  do  so. 

There  having  been  no  evidence  of  the  alleged  payment  of  more 
than  ten  per  cent,  interest,  the  other  and  more  important  question 
argued  by  counsel  does  not  arise  in  this  case. 

Judgment  aMrmed. 

L,  B,  Grigsby,  for  appellants.    James  Simpson,  for  appellee. 


James  Walsh  v.  James  M.  Powers. 

Damages— -Pleading — Proof. 

Unless  plaintiff  seeks  to  recover  punitive  damages,  it  is  not  neces- 
sary to  prove  that  the  injury  cimiplained  of  was  inflicted  either  pur- 
posely or  wantonly. 

Pleading. 

In  actions  for  injuries  to  the  person  neither  motive,  interest  nor  the 
circumstances  under  which  the  injury  was  inflicted  need  be  pleaded. 

Pleading. 

In  actions  for  injuries  to  person  an  averment  of  the  extent  of  the 
injury  and  the  manner  of  its  infliction  is  suflicient. 

APPEAL  FROM  OWEN  CIRCUIT  COURT. 

January  11,  1876. 

Opinion  by  Judge  Lindsay  : 

It  was  not  necessary  in  this  case  to  order  or  prove  that  the  injur}' 
complained  of  was  inflicted  either  purposely  or  wantonly,  unless 
the  complainant  desired  to  recover  punitive  damages;  and  even  in 
that  view,  proof  of  circumstances  of  aggravation  would  have  been 
sufficient,  upon  a  simple  averment  of  negligence. 

In  actions  for  injuries  to  the  person,  neither  motive,  interest,  nor 
the  circumstances  under  which  the  injury  was  inflicted  need  be 
stated.  An  allegation  of  the  extent  of  the  injury,  and  the  manner  of 
its  infliction  is  sufficient,  and  when  it  is  the  result  of  negligence  or 
carelessness  the  charge  is  sufficient  if  made  in  general  terms.  Louis- 
villc,  Cincinnati  &  Lexington  R.  Co.  v.  Case's  Admr.,  g  Bush  728 ; 
I  Chitty 's  Pleading  388 ;  2  lb.  650 ;  Chiles  v.  Drake,  2  Met.  146. 


Oliver  Waddle  v.  Commonwealth.  577 

Instruction  No.  2  correctly  defines  the  rule  by  which  proper  com- 
pensation is  to  be  determined  in  such  a  case  as  this.  LomsvUle,  Cin* 
cinnati  &  Lexington  R,  Co.  v.  Case's  Adtnr.,  9  Bush  728.  The  in- 
struction asked  by  appellant  was  properly  refused.  Admitting  his 
entire  innocence  of  an  intention  to  injure  the  appellee,  yet  as  he 
acted  negligently,  he  must  compensate  the  latter  for  the  injury  re- 
sulting from  such  negligence. 

Judgment  affirmed, 

J.  D.  Lillard,  for  appellant. 

A.  P,  Grover,  H,  P.  Montgomery,  for  appellee. 


Oliver  Waddle  v.  Commonwealth. 

Criminal  Law — ^Instructions— -Exceptions. 

In  a  criminal  case  where  no  exceptions  are  made  to  Instructions 
given  at  the  instance  of  the  commonwealth,  objections  are  waived  and 
will  not  be  considered  by  the  court  of  appeals. 

Sufficiency  of  Indictment. 

The  court  of  appeals  has  no  power  to  reverse  a  criminal  cause  on 
account  of  the  trial  court's  error  in  overruling  a  demurrer  to  an  indict- 
ment 

APPEAL  FROM  BUTLER  CIRCUIT  COURT. 

January  18, 1876. 
Opinion  by  Judge  Cofer: 

The  instructions  given  at  the  instance  of  the  commonwealth  were 
not  excepted  to  by  the  defendant;  and  this  court  has  so  repeatedly 
held  that  unless  exceptions  are  taken  to  the  giving  of  instructions  in 
criminal  trials,  they  are  waived,  that  we  do  not  now  feel  at  liberty 
to  hold  that  exceptions  are  unnecessary. 

This  construction  of  the  Criminal  Code  was  adopted  as  early  as 
i860  in  the  case  of  Clem  v.  Commonwealth,  3  Met.  10,  and  in  Burns 
V.  Commonzvealth,  lb.  13,  and  has  been  repeatedly  recognized  and 
acted  upon  since  that  time,  and  the  matter  has  thus  been  placed  be- 
yond the  power  of  this  court.  If  the  ends  of  justice  demand  a  change 
in  the  practice  in  this  regard,  the  legislature  alone  is  competent  to 
make  it.  The  indictment  seems  to  us  to  be  sufficient  even  on  demur- 
rer, but  whether  so  or  not  we  have  no  power  to  reverse  for  error  in 
overruling  a  demurrer  to  an  indictment.  Sec.  334,  Crim.  Code. 

37 


578  Kentucky  Opinions. 

The  court  did  not  err  in  refusing  to  arrest  the  judgment.  The  in- 
dictment stated  facts  constituting  a  public  offense  within  the  juris- 
diction of  the  Butler  circuit  court,  and  under  section  271  the  judg- 
ment could  not  be  properly  arrested.  It  was  not  necessary  to  describe 
the  manner  in  which  or  to  indicate  in  the  indictment  at  what  part  of 
the  house  the  alleged  breaking  and  entry  were  made. 

The  defendant  did  not  object  to  the  jury  being  allowed  to  separate  ; 
and  if  he  had,  this  court  would  have  no  jurisdiction  to  consider  the 
propriety  of  that  action  on  the  part  of  the  circuit  court. 

The  variance  between  the  name  given  on  the  indictment  and  judg- 
ment and  that  in  the  verdict  was  not  material,  and  especially  is  this 
true  in  view  of  the  fact  that  in  one  of  his  own  instructions  the  de- 
fendant called  himself  by  the  same  name  by  which  he  is  called  in  the 
verdict. 

We  perceive  no  error  available  on  the  record  for  a  reversal  of  the 
judgment,  and  it  must  therefore  be  affirmed. 

B.  L.  D.  Guffy,  A.  Duvall,  for  appellant. 
T.  E.  Moss,  for  appellee. 


Jordan  Thomas  v.  S.  S.  Rowlett,  et  al. 

Married  Women — Separate  Estate  in  Lands. 

A  conveyance  to  a  married  woman,  her  heirs  and  assigns  forever, 
free  from  the  use  and  control  of  her  said  husband,  where  the  war- 
ranty is  in  the  same  words,  is  sufficient  to  create  a  separate  estate. 

EstoppeL 

The  statute  does  not  permit  a  married  woman  to  sell  or  incumber 
her  separate  estate,  nor  can  she  estop  herself  of  the  right  to  claim 
it,  by  such  representations  as  would  estop  other  persons  free  from 
statutory  disability. 

APPEAL  FROM  OWESS  CIRCUIT  COURT. 
January  13,  1876. 

Opinion  by  Judge  Lindsay  : 

The  conveyance  from  Jones  is  to  America  Rowlett,  her  heirs  and 
assigns  forever,  free  from  the  use  and  control  of  her  said  husband, 
and  the  warranty  is  in  the  same  words.  The  language  is  such  as  to 
create  a  separate  estate.  The  mortgage  to  the  appellant  does  not, 
therefore,  bind  Mrs.  Rowlett. 


James  R.  Highly  v.  Commonwealth.  579 

The  first  amended  petition  offered,  at  most  only  sets  out  a  state  of 
facts,  which  tended  to  estop  Mrs.  Rowlett  to  claim  the  land  as  sepa- 
rate estate.  But  as  a  feme  covert,  under  the  provisions  of  the  Re- 
vised Statutes,  could  not  sell  or  encumber  her  separate  estate,  neither 
could  she  divest  herself  of  the  right  to  claim  it  by  such  acts  or  repre- 
sentations as  would,  in  cases  of  persons  free  from  the  statutory  dis- 
ability, create  an  estoppel  in  pais.  The  court,  therefore,  did  not  err 
in  refusing  to  allow  this  amended  answer  to  be  filed.  The  second 
amended  answer  was  not  offered  until  the  cause  was  ready  for  hear- 
ing, and  no  explanation  was  offered  for  the  delay.  We  cannot  say 
that  the  court  abused  a  sound  discretion  in  refusing  at  the  time  to  al- 
low it  to  be  filed. 

As  Mrs.  Rowlett  and  her  husband  and  Bourne  are  the  only  parties 
made  appellees,  we  need  not  inquire  as  to  the  propriety  of  the  action 
of  the  court,  as  to  co-sureties  of  appellant. 

No  attack  was  made  upon  the  conveyance  to  Bourne. 

The  judgment  must  be  affirmed. 

/.  D,  Lillard,  for  appellant.  E.  E,  Settle,  for  appellees. 


James  R.  Highly  z\  Commonwealth. 

Criminal  Law — Reversal. 

There  can  be  no  reversal  for  an  error  In  instructing  or  in  refusing 
to  instruct  the  jury,  unless  all  of  the  instructions  given  by  the  court 
are  contained  in  the  bill  of  exertions. 

Admissibility  of  Evidence. 

In  a  murder  trial  where  the  defendant  is  charged  with  killing  one 
person  evidence  is  not  admissible  showing  that  the  defendant  also 
killed  another  person,  where  not  admissible  as  a  part  of  the  res  gestae. 

APPEAL  FROM  NICHOLAS  CIRCUIT  COURT. 

January  19,  1876. 

Opinion  by  Judge  Cofer  : 

Sec.  335  of  the  Criminal  Code  provided  that  a  judgment  in  a  crim- 
inal prosecution  "shall  not  be  reversed  for  an  error  of  the  court  in 
instructing  or  in  refusing  to  instruct  the  jury,  unless  the  bill  of  ex- 
ceptions contains  all  the  instructions  given  by  the  court  to  the  jury, 
and  unless  it  shall  thereupon  appear  that  the  law  applicable  to  the 
case  was  not  correctly  and  fairly  given  to  the  jury." 


S8o  Kentucky  Opinions. 

The  bill  of  exceptions  in  this  case  does  not  contain  any  of  the  in- 
structions given  by  the  court,  but  it  contains  a  statement  to  the  effect 
that  the  court  instructed  the  jury  as  to  the  law  of  murder,  but  failed 
to  instruct  them  as  to  the  law  of  manslaughter.  It  is  the  duty  of  the 
court  on  trial  of  a  prisoner  for  murder  to  instruct  the  jury  as  to  the 
law  of  manslaughter,  especially  in  a  case  like  this ;  but  whether  the 
statement  in  the  bill  of  exceptions  would  warrant  us  in  reversing 
the  judgment  on  that  ground  alone  it  is  not  necessary  now  to  decide. 

After  the  commonwealth  had  proved  the  shooting  of  Mountjoy 
by  the  appellant,  and  after  a  witness  had  stated  that  he  had  also  shot 
one  Davis,  the  witness  was  asked:  "What  did  Highly  shoot  and 
wound  Davis  for  ?"  The  appellant*s  counsel  objected  to  the  question, 
but  the  court  overruled  the  objection  and  permitted  the  witness  to 
answer,  to  which  the  appellant  excepted.  The  witness  stated  that 
when  the  shooting  commenced  (that  is,  when  the  appellant  com- 
menced shooting  at  Mountjoy)  Davis  ran  out  at  the  back  door  and 
came  around  the  house  to  the  front,  and  was  passing  by  the  house 
toward  the  road  when  the  prisoner  shot  him,  the  ball  entering  his 
mouth  and  coming  out  near  his  ear. 

The  evidence  should  not  have  been  admitted.  The  prisoner  was 
not  on  trial  for  shooting  Davis,  and  the  evidence  admitted  on  that 
subject  was  calculated  to  prejudice  his  substantial  rights,  by  strength- 
ening the  evidence  of  malice  furnished  by  the  other  facts  and  cir- 
cumstances in  evidence  in  the  cause.  The  evidence  of  the  shooting 
of  Davis  was  not  admissible  as  a  part  of  the  res  gestae.  The  prisoner 
was  being  tried  for  the  alleged  murder  of  Mountjoy,  and  if  ac- 
quitted might  have  been  immediately  put  upon  trial  for  wounding 
Davis,  and  if  he  had  been,  he  could  not  have  pleaded  the  acquittal  in 
the  first  prosecution  in  bar  of  the  second. 

We  are,  therefore,  of  the  opinion  that  for  the  error  indicated  the 
judgment  must  be  reversed,  and  the  cause  remanded  for  a  new  trial. 

The  instructions  not  having  been  made  a  part  of  the  record  by  bill 
of  exceptions  or  otherwise,  we  do  not  reverse  for  error  in  giving  or 
refusing  instructions ;  but  as  the  case  must  go  back  to  be  retried  it 
is  proper  to  call  attention  to  some  omissions  in  the  instructions 
copied  and  sent  up  by  the  clerk,  and  which  purport  to  have  been 
given  in  the  cause,  and  to  suggest  that  if  these  are  the  only  instruc- 
tions given  they  failed  to  give  to  the  jury  the  whole  law  of  the  case. 

The  jury  should  have  been  told  that  if  on  all  the  evidence  they 
had  a  reasonable  doubt  whether  the  prisoner  had  been  proven  guilty, 
they  should  find  him  not  guilty ;  the  converse  of  the  instructions  fol- 


Mathew  Bran  ham  v.  Commonwealth.  581 

lowing  that  in  which  murder  was  defined  should  also  have  been 
given,  as  well  as  the  law  of  manslaughter  and  of  self-defense;  and 
the  jury  should  also  have  been  told  that  if  they  found  the  defendant 
guilty,  but  had,  on  all  the  evidence,  a  reasonable  doubt  whether  he 
was  guilty  of  murder  or  manslaughter  they  should  find  him  guilty  of 
the  latter  crime. 
Judgment  reversed, 

D,  Ellis  Conner,  for  appellant,     T,  E,  Moss,  for  appellee. 


Mathew  Branham  v.  Commonwealth. 

Criminal  Law — Evidence. 

In  a  criminal  case  where  the  defendant  was  charged  with  the  lar- 
ceny of  a  watch,  it  was  error  for  the  court  to  refuse  to  permit  the 
defendant  to  prove  that  before  he  knew  he  was  suspected  of  the  crime, 
he  exhibited  the  watch  to  persons  and  Inquired  of  them  whether  they 
had  lost  it  and  whether  they  knew  to  whom  it  belonged  and  stated  to 
them  that  he  had  just  picked  it  up  in  the  yard  and  desired  to  find  the 
owner. 

APPEAL  PROM  DAVIESS  CIRCUIT  COURT. 

January  20,  1876. 

Opinion  by  Judge  Lindsay  : 

We  need  not  consider  the  question  raised  as  to  the  variance  be- 
tween the  proof  and  the  indictment. 

The  court  instructed  the  jury  that  they  could  not  find  the  appel- 
lant guilty  unless  they  believed  from  the  evidence  that  the  watch 
charged  to  have  been  stolen  was  "a  German  silver  hunting  case 
watch."  This  is  the  exact  description  given  in  the  indictment.  If  the 
jury  disregarded  this  instruction,  and  found  against  the  evidence,  the 
circuit  court  had  the  right  and  pow^r  for  that  reason  to  grant  appel- 
lant a  new  trial,  but  this  action  of  that  court  in  this  regard  is  not 
subject  to  the  revisory  power  of  this  court. 

The  appellant  offered  to  prove  that  on  the  morning  the  watch  is 
alleged  to  have  been  stolen,  and  before  he  was  suspected  of  the  theft 
by  any  one  present,  and  before  he  knew  or  could  have  known  that 
the  owner  of  the  watch  suspected  him,  and  before  any  search  had 
been  made,  that  he  exhibited  it  to  two  persons  and  asked  one  of 
them  if  he  had  lost  it,  and  both  of  them  if  they^  knew  to  whom  ft 


582  Kentucky  Opinions. 

belonged,  and  stated  that  he  had  just  picked  it  up  in  the  yard,  and 
desired  to  find  the  owner. 

The  court  refused  to  allow  those  facts  to  go  to  the  jury.  This  was 
error.  The  exact  question  was  decided  by  this  court  in  the  case  of 
Tipper  v.  Commonwealth,  i  Met.  6,  and  also  in  the  subsequent  case 
of  Carter  v.  Commonwealth  in  an  unpublished  opinion.  In  the  last- 
named  case  the  court  examined  the  common-law  authorities  and 
was  satisfied  that  they  sustained  the  doctrine  announced  in  the  Tip- 
per case. 

Judgment  reversed  and  cause  remanded  for  a  new  trial  upon  prin- 
ciples consistent  with  this  opinion. 

Owen  &  Ellis,  for  appellant.    T.  E.  Moss,  for  appellee. 


Leonard  Farmer  z/.  Calvin  Howard. 

Attorney  and  Client 

It  is  not  within  the  legitimate  professional  duties  of  an  attomej  at 
law,  within  his  employment  to  defend  one  charged  with  a  crime,  to 
persuade  witnesses  against  def^idant  not  to  appear  against  such  de- 
fendant. 

APPEAL  FROM  HARLAN  CIRCUIT  COURT. 

January  20,  1876. 

Opinion  by  Judge  Lindsay  : 

The  appellee  by  his  answer  denied  that  he  employed  ^pellant  to 
defend  him,  and  also  denied  that  he  did  render  any  legal  services 
in  his  defense.  It  may  be  conceded  that  the  proof  preponderates  in 
favor  of  the  alleged  employment,  but  it  does  not  show,  outside  of 
the  testimony  of  appellant,  that  any  services  were  rendered. 

Appellant  swore  that  he  was  present  when  the  defendant  was  ar- 
rested for  perjury;  that  he  defended  the  said  Howard;  that  he  got 
the  most  important  witness  against  the  defendant  not  to  appear 
against  said  defendant  at  the  request  of  the  defendant,  he  knowing 
from  his  statements  that  the  proof  would  show  the  defendant  guilty ; 
that  he  did  not  bribe  the  witness,  but  got  him  not  to  prosecute  the 
case  any  further. 

The  services  thus  rendered  were  doubtless  beneficial  to  the  appel- 
lee, but  it  strikes  this  court  that  they  do  not  fall  within  the  legiti- 
mate professional  duties  of  an  attorney-at-law,  who  is  an  officer  of 


Richard  Adams  v,  William  Delcher  &  Son.  583 

the  courts  in  which  he  practices  and  a  quasi  officer  of  the  law,  and 
who  acts  in  all  things  connected  with  his  profession,  under  an  oath 
that  he  will  faithfully  execute  to  the  best  of  his  ability  the  office  of 
attorney  according  to  law. 

Appellant  insists  in  his  brief  that  the  court  below  ought  not  to 
have  compelled  him  to  answer  the  questions  which  brought  out  the 
foregoing  statements.  He  was  a  voluntary  witness  *in  his  own  be- 
half. The  matter  sought  to  be  proved  was  germane  to  the  issue  on 
trial.  The  only  ground  upon  which  he  could  have  been  excused  from 
answering  was  that  he  would  be  compelled  thereby  to  disclose  the 
fact  that  he  had  violated  the  law,  or  committed  a  breach  of  profes- 
sional duty.  If  he  considered  that  he  had  done  either  of  these  things 
and  had  declined  to  answer  on  that  ground,  we  have  no  doubt  the 
circuit  judge  would  have  excused  him. 

The  verdict  of  the  jury  is  not  palpably  against  the  weight  of  the 
evidence,  but  if  it  were,  as  the  testimony  of  the  appellant  shows,  that 
instead  of  asking  the  courts  to  assist  him  in  obtaining  the  reward 
promised  for  the  services  he  swears  he  rendered,  he  should  be  con- 
tent to  have  them  let  the  latter  rest  where  it  now  is. 

The  judgment  must  be  affirmed. 

L.  Farmer,  for  appellant,    John  Disham,  for  appellee. 


Richard  Adams  v.  William  Delcher  &  Son. 

Appeals — ^Jurisdiction  of  Court  of  Appeals. 

Pursuant  to  the  provisions  of  the  Act  of  1858  the  court  of  appeals 
has  no  jurisdiction  of  an  appeal  where  the  amount  In  controversy, 
exclusive  of  costs,  is  less  than  fifty  doUars. 

APPEAL  FROM  BOYD  CIRCUIT  COURT. 

January  24,  1876. 

Opinion  by  Judge  Peters  : 

This  appeal  is  prosecuted  by  appellant  from  a  judgment  in  his 
favor  for  $43.75,  with  interest  from  the  nth  of  November,  1874, 
(the  date  of  the  judgment)  till  paid,  but  he  was  adjudged  to  pay 
appellees  their  costs  by  them  expended  in  the  court  below,  and  also 
from  the  refusal  of  the  court  below  to  reconsider  and  to  change  the 
judgment  of  the  day  before  allowing  to  appellees  their  costs  on  the 
appeal  to  the  circuit  court  and  refusing  to  adjudge  to  appellant  his 
costs  in  said  court  against  appellees. 


584  Kentucky  Opinions. 

The  first  question  presented  is,  "Has  this  court  jurisdiction  of  the 
case?"  By  an  act  of  the  legislature  approved  February  9,  1858,  the 
15th  section  of  the  Civil  Code  was  amended,  and  the  jurisdiction  of 
this  court  was  increased  over  all  judgments  in  actions  for  the  re- 
covery of  money  or  personal  property,  where  the  value  in  contro- 
versy is  fifty  dollars  or  over  that  amount.  Sec.  17,  Civ.  Code,  pro- 
vides that  costs  are  not  to  be  included  in  estimating  the  value  neces- 
sary to  give  jurisdiction  to  the  court  of  appeals.  Sec.  2,  Art.  22, 
Chap.  28,  General  Statutes,  p.  311,  provides  that  no  appeal  shall  be 
taken  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  costs. 

Appellant's  demand  for  which  he  brought  his  original  suit  in  the 
police  court  of  Ashland  was  $46.25,  and  the  recovery  in  that  court 
was  $45.  On  an  appeal  to  the  quarterly  court  the  judgment  was 
affirmed,  and  on  the  appeal  to  the  circuit  court  that  judgment  was 
reduced  to  $43.75.  I^  is  obvious  that  at  no  time  the  value  in  contro- 
versy has  reached  $50,  exclusive  of  costs,  and  it  is  difficult  to  per- 
ceive how  this  court  can  get  jurisdiction  of  the  case  unless  the  stat- 
utes cited  be  totally  disregarded,  or  unless  the  court  will  assume  that 
as  the  costs,  which  are  a  mere  incident  to  the  judgment,  are  adjudged 
to  appellee,  they  exceed  $50.  The  shadow  would  thus  be  substi- 
tuted for  the  body  and  substance  of  the  matter  in  controversy,  and 
upon  that  ground  assume  jurisdiction  where  the  legislature  never 
intended  to  confer  it,  a  power  which  we  certainly  cannot  assume  to 
exercise. 

This  court  having  no  jurisdiction  the  appeal  is  dismissed. 

IV,  C.  Ireland,  7.  W.  Hampton,  for  appellant, 
Elliott  &  Prichard,  for  appellees. 


James  Saffell,  et  al.,  v.  City  of  Frankfort. 

Taxation — Sale  of  Real  Estate  at  Tax  Sale. 

Proceedings  to  sell  property  for  taxes  must  substantially  conform 
to  the  statute;  the  omission  of  any  step  deemed  essential  to  protect 
the  taxpayer  renders  a  tax  sale  void. 

APPEAL  FROM  FRANKLIN  CIRCUIT  COURT. 

January  25,  1876. 

Opinion  by  Judge  Cofer  : 

The  charter  of  the  city  of  Frankfort  gives  ample  means  of  en- 


John  Hackworth  v,  William  R.  Thompson,  et  al.      585 

forcing*  the  payment  of  taxes  due  the  city,  and  there  was  no  neces- 
sity, and  therefore  no  right  to  come  into  equity  to  enforce  payment. 
Johnson  v.  Louisville,  Mss.  Opinion.  Whether  the  appellants  can 
hold  the  property  discharged  from  the  lien,  if  any,  resting  upon  it 
when  they  purchased  from  Haley,  is  a  question  which  does  not  arise 
in  this  case.  If  the  city  has  a  lien  which  might  be  enforced  against 
them  in  a  court  of  equity  it  can  be  enforced  by  pursuing  the  mode 
pointed  out  in  the  charter. 

There  seems  never  to  have  been  an  advertisement  of  the  store- 
house and  residence  for  sale  for  the  taxes  for  the  year  1870.  It  is  a 
well-established  rule  that  proceedings  to  sell  property  for  taxes  must 
be  in  substantial  conformity  to  the  statute,  and  that  the  omission  of 
any  step  in  the  proceeding  deemed  essential  for  the  protection  of  the 
taxpayer  renders  the  sale  void.  The  advertisement  required  by  the 
charter  was  intended  for  the  benefit  of  the  owners  of  property,  and 
the  alleged  sales  for  taxes  without  advertising  are  void,  and  being 
void  the  sales  do  not  affect  the  rights  of  either  party  or  the  remedy 
of  the  city. 

If  the  sales  had  been  merely  voidable  at  the  election  of  the  owner 
of  the  property,  the  city  could  have  enforced  payment  by  suit  in 
equity,  for  in  that  case  it  would  have  been  without  any  other  remedy. 

The  judgment  is  reversed  and  the  cause  is  remanded  with  direc- 
tions to  dismiss  the  petition.  Judgement  afhrmed  on  cross-appeal. 

W.  H,  Sneed,  for  appellants.    Lindsey,  G.  C.  Drane,  for  appellee. 


John  Hackworth  v.  William  R.  Thompson,  et  al. 

Attachment— Sale  of  Real  Estate  Under  Attachment— Description. 

A  Judicial  sale  of  real  estate  attached,  sold  by  order  of  the  Judg- 
ment, is  void  where  no  specific  description  of  the  real  estate  is  in- 
cluded in  the  Judgment. 

APPEAL  PROM  LEWIS  CIRCUIT  COURT. 

January  26,  1876. 

Opinion  by  Judge  Peters  : 

By  the  return  of  the  sheriff  it  appears  that  the  attachment  was 
levied  on  1,200  acres  of  land  on  Briery  Creek  in  Lewis  County  in 
the  possession  of  John  Hackworth.  In  the  judgment  the  land  is  de- 
scribed precisely  as  it  is  in  the  return  on  the  attachment.   The  levy 


S86  Kentucky  Opinions. 

made  by  the  officer  would  be  sufficient  to  create  a  lien  on  the  land. 
But  a  specific  description  is  not  given  in  the  judgment.  The  master 
must  go  on  Briery  Creek  in  Lewis  County,  and  inquire  where  the 
1,200  acres  of  land  are  located  which  Hackworth  had  in  possession 
on  the  1st  of  December,  1868;  and  if  his  information  be  correct  on 
such  inquiry,  he  may  sell  the  right  tract  of  land ;  but  if  he  is  misin- 
formed he  may  sell  an  entirely  different  tract,  and  the  land  of  some 
other  person.  Before  the  judgment  of  sale  is  rendered  the  court 
should  have  sent  his  master  out  with  the  surveyor,  if  need  be,  and 
have  the  1,200  acres  of  land  that  the  sheriff  levied  said  attachment 
on,  identified  by  metes  and  bounds,  and  report  the  same  to  the  court; 
and  the  judgment  then  should  contain  the  description  of  the  land  as 
reported,  so  that  the  commissioner  could,  with  the  judgment,  go  on 
the  land  and  explain  to  bidders  and  purchasers  the  land  to  be  sold, 
its  form,  location,  and  identity. 

The  question  as  to  the  homestead  right  is  not  raised  by  the  plead- 
ings, and  of  course  not  adjudicated  by  the  court  below,  and  this 
court  therefore  has  nothing  to  do  with  it  on  this  appeal. 

But  for  the  reasons  stated  the  judgment  of  the  court  below  is 
reversed,  and  the  cause  is  remanded  for  further  proceedings  consist- 
ent herewith. 

W.  H,  Cord,  for  appellant.    A,  Duvall,  for  appellees. 


V.  D.  McManama  v.  Isabella  Campbell,  et  al. 


Redemption  from  Sale  of  Real  Estate— Agreement  to  Extend  Time  for 
Redemption. 

The  owner  of  land  sold  on  decree  may  redeem  it  from  Bale  within 
a  year,  but  where  the  purchaser  at  such  a  sale  for  a  consideration 
agrees  to  give  the  owner  a  longer  time  and  breaks  the  agreement  and 
procures  a  deed  from  the  sheriff,  the  owner  may  set  such  deed  aside 
and  be  allowed  to  redeem  within  the  time  agreed  upon  between  the 
parties. 

APPEAL  FROM  GRANT  CIRCUIT  COURT. 

January  26,  1876. 

Opinion  by  Judge  Pryor  : 

It  IS  alleged  in  substance  in  the  amended  answer  that  before  the 
expiration  of  the  year  in  which  the  appellant  had  the  right  to  re- 
deem, it  was  agreed  between  himself  (the  defendant)  and  the  plain- 


Geo.  C.  Harlan,  et  al.,  v,  Fieldin  Hardin,  et  al.        587 

tiffs  that  the  time  for  redemption  should  be  extended  until  the  first 
of  March,  1873,  >"  consideration  that  the  defendant  would  at  that 
time  pay  to  the  plaintiffs  the  sum  of  one  hundred  dollars  in  addi- 
tion to  the  amount  that  would  be  due  on  the  execution;  that  the 
plaintiffs,  prior  to  that  time,  and  in  violation  of  the  agreement,  ob- 
tained from  the  sheriff  a  deed  to  the  land,  and  are  now  asserting 
their  right  to  recover  the  possession  by  reason  of  said  deed,  etc.  He 
asks  that  he  be  allowed  to  redeem  and  the  deed  be  cancelled. 

If  such  was  the  agreement  between  the  parties  the  appellees  were 
not  entitled  to  a  deed  until  the  expiration  of  the  time  at  which  the 
appellant  was  allowed  to  redeem,  and  having  violated  their  agree- 
ment by  accepting  the  deed,  or  having  it  executed  to  them  by  the 
sheriff  before  they  were  entitled  to  it,  cannot  defeat  appellant's 
equitable  right  because  of  his  failure  to  tender  the  money.  This 
agreement,  if  made,  was  binding  on  the  parties  and  the  appellees 
having  procured  the  deed  prior  to  the  ist  of  March  violated  the  con- 
tract and  released  the  appellant  from  the  necessity  of  making  a 
tender.  It  was,  in  effect,  saying  to  appellant,  "You  shall  not  have  the 
land  although  you  may  be  willing  to  pay  the  money,**  and  besides, 
the  deed,  having  been  made  before  the  time  for  redemption  expired, 
passed  no  title  to  appellees.  That  it  was  so  made  is  admitted  by  the 
demurrer,  and  all  the  allegations  of  the  answer  and  amended  answer 
must  be  taken  as  confessed.  The  appellant  is  now  asking  to  enforce 
the  agreement,  and  he  should  be  permitted  to  redeem  if  the  state- 
ments of  his  answer  are  sustained  by  the  proof.  The  court  erred  in 
refusing  to  permit  appellant  to  file  his  amended  answer  offered  at 
the  May  term,  1875.  It  is  too  late  to  object  to  the  manner  in  which 
the  last  pleading  was  supplied  after  the  answer  was  filed,  even  if  it 
be  regarded  as  error. 

The  judgment  is  reversed  and  cause  remanded  with  directions  to 
award  appellant  a  new  trial,  and  for  further  proceedings  consistent 
with  this  opinion.  Stapp  v.  Phelps,  7  Dana  296. 

/.  /.  Laudnun,  for  appellant. 

J.  M.  Collins,  E,  H.  Smith,  for  appellees. 


Geo.  C.  Harlan,  et  al.,  v.  Fieldin  Hardin,  et  al. 

Conveyance— Officer  Before  Whom  Deed  Acknowledged. 

The  certificate  of  an  ofilcer  that  a  deed  was  acknowledged  before 
him,  when  he  is  not  authorized  to  take  acknowledgments,  furnishes 
no  evidence  of  the  execution  of  the  deed. 


588  Kentucky  Opinions. 

Evidence. 

Before  a  copy  of  a  recorded  writing  can  be  read  in  evidence  It  most 
appear  that  the  original  was  authenticated  in  the  mode  provided  by 
the  statute. 

Recording  of  Deeds. 

The  clerk  is  not  authorized  to  record  a  deed  without  direct  proof 
of  its  execution,  although  such  deeds  may  sometimes  be  admitted  in 
evidence  as  ancient  writings. 

Evidence. 

The  declarations  of  a  person  while  in  possession  of  land  are  admis- 
sible to  prove  the  character  of  that  possession. 


APPEAL  FROM  GREENUP  CIRCUIT  COURT. 

January  27,  1876. 

Opinion  by  Judge  Cofer  : 

At  the  time  the  deed  from  Keith  to  Harlan  purports  to  have  been 
acknowledged  there  was  no  law  of  this  state  authorizing  mayors  of 
cities  to  take  and  certify  the  acknowledgment  of  deeds.  The  first  act 
of  assembly  giving  such  authority  was  passed  in  1796,  and  went  into 
effect  January  i,  1797.  i  Statute  Laws  439,  Sec.  3.  The  mayor  of 
Philadelphia  having  no  authority  to  take  the  acknowledgment,  his 
certificate  furnished  no  evidence  whatever  of  the  execution  of  the 
deed,  and  gave  the  clerk  no  authority  to  record  it.  Nor  could  the 
clerk  admit  it  to  record  as  an  ancient  deed. 

Copies  of  recorded  writings  are  only  admissible  in  evidence  be- 
cause the  statute  so  declares,  and  before  such  copy  can  be  read  it 
must  appear  that  the  original  was  authenticated  in  the  mode  provided 
by  the  statute,  for  until  that  does  appear  the  copy  does  not  fall  with- 
in the  terms  of  the  statute  making  copies  evidence.  Sec.  34,  Chap. 
28,  Gen.  Stat. 

We  do  not  know  of  any  law  authorizing  clerks  to  record  deeds 
without  direct  proof  of  their  execution,  although  they  might  be  ad- 
missible in  evidence  in  court  as  ancient  writings.  It  is  not  enough 
to  render  a  writing  admissible  in  evidence  that  it  appears  to  be  more 
than  thirty  years  old ;  it  must  also  appear  that  it  is  unblemished  by 
alterations,  and  that  it  comes  from  such  custody  as  to  afford  a  rea- 
sonable presumption  in  favor  of  its  genuineness;  and  that  it  is 
otherwise  free  from  suspicion,  i  Green.  Sec.  21.  Whether  an  in- 
strument offered  under  this  rule  is  admissible  depends  wholly  upon 
a  common-law  rule  of  evidence,  and  is  a  judicial  question  which 


Geo.  C.  Harlan,  et  al.,  v.  Fieldin  Hardin,  et  al.        589 

clerks  have  no  power  to  decide.  The  court  did  not,  therefore,  err  in 
rejecting  the  copy  offered  in  evidence  by  the  appellants.  Nor  did 
the  court  err  in  refusing  to  allow  the  opinion  of  this  court  in  the 
case  of  Harlan's  Heirs  v.  Senton,  or  the  mandate  therein  to  be  read 
to  the  jury.  The  opinions  of  this  court  are  not  made  of  evidence  of 
the  facts  therein  recited  for  any  purpose  whatever,  and  so  far  as  they 
decide  questions  of  law  they  should  be  read  to  the  court  and  not  to 
the  jury. 

It  is  doubtful  whether  the  writ  of  possession  in  case  of  Harlan's 
Heirs  v.  Senton,  and  the  officer's  return,  were  not  admissible  as  con- 
ducing to  show  th«  extent  of  the  appellants'  claim  and  how  they  en- 
tered upon  the  land,  and  that  the  previous  possession  of  Senton's 
was  to  their  benefit ;  but  there  was  no  conflict  in  the  evidence  in  re- 
gard to  the  manner  in  which  they  obtained  possession,  or  the  extent 
to  which  they  claimed,  and  the  refusal  of  the  court  to  allow  the  writ 
to  go  to  the  jury  cannot  have  prejudiced  the  appellants.  It  is  evident 
that  the  contest  was  as  to  the  possession  and  adverse  claim  of  Dorch, 
and  that  the  right  of  appellants  was  substantially  conceded  to  all  the 
land  except  that  which  the  appellees  claimed  to  have  been  in  the 
possession  of  Dorch ;  and  they  claimed  that  the  appellants  had  nei- 
ther title  to  or  possession  of  that,  not  on  the  ground  that  it  was  not 
claimed  by  them,  but  on  the  ground  that  their  title  had  been  tolled 
by  the  long  continued  adverse  possession  of  Dorch.  That  this  was  re- 
garded by  both  parties  as  the  main  ground  of  controversy  is  evident 
from  the  instructions  asked. 

Under  such  circumstances  the  appellants  could  not  have  been 
prejudiced  by  the  refusal  to  admit  the  writ  of  possession  and  return, 
the  only  effect  of  which  would  have  been  to  corroborate  the  uncon- 
tradicted parol  evidence  that  they  were  in  the  actual  possession  of  a 
part  of  Keith's  patent  claiming  the  whole.  The  court  instructed  the 
jury  that  if  they  were  in  the  actual  possession  of  any  part  of  the 
patent  boundary  claiming  to  the  extent  thereof  then  they  were  in 
possession  of  the  whole,  and  were  entitled  to  a  verdict  unless  Dorch 
had  been  in  the  actual  adverse  possession  of  the  land  when  the  cut- 
ting was  done  for  a  period  of  fifteen  years. 

The  court  did  not  err  in  modifying  the  second  or  in  refusing  the 
third  instruction  asked  by  the  appellants.  If  Dorch  had  been  in  the 
adverse  possession  of  the  land  for  fifteen  years  before  the  supposed 
agreement  to  surrender  he  had  become  invested  with  title,  and  he 
could  not  be  divested  by  an  unexecuted  parol  agreement  to  surren- 
der. The  evidence  in  regard  to  his  alleged  agreement  to  surrender 


590  Kentucky  Opinions. 

and  his  recognition  of  the  appellant's  title  was  admissible  for  the 
purpose  of  rebutting  the  evidence  offered  by  the  appellees  as  to  the 
character  of  his  holding,  but  for  no  other  purpose. 

The  declarations  of  Dorch  while  in  possession  of  the  land  were 
admissible  to  prove  the  character  of  that  possession,  and  the  court 
did  not  err  in  permitting  them  to  be  proved.  The  instruction  g^ven 
seems  to  us  to  have  been  more  favorable  to  the  appellants  than  the 
law  warranted.  It  was  in  effect  assumed  that  the  appellants  were 
owners  of  the  tract  of  land  and  had  right  to  recover  unless  Dorch 
and  those  claiming  under  him  had  acquired  titk  to  it  by  possession. 

We  perceive  no  error  to  the  prejudice  of  the  appellants  and  the 
judgment  is  reversed. 

Moore  &  Bennett,  for  appellants. 

E.  C.  Phister  and  E.  L,  Dulin,  for  appellees. 


Wm.  H.  Pelton  z\  City  of  Hopkinsville. 


Damages— Contractor — City  Not  Liable. 

Where  an  improvement  Is  being  constructed  in  the  city  by  an  in- 
dependent contractor,  the  city  is  not  necessarily  bound  to  answer  for 
the  carelessness  or  negUgence  of  such  contractor. 

Liability  of  City. 

If  the  work  of  constructing  a  city  Improvement  Is  of  such  a  char- 
acter as  to  be  likely  to  result  in  injury  to  persons  or  property  even 
when  skilfully  performed,  for  any  injury  resulting  from  the  danger- 
ous character  of  the  work  and  not  directly  from  the  negligence  of 
the  contractor  the  city  may  be  liable. 

APPEAL  FROM  CHRISTIAN  CIRCUIT  COURT. 

January  29,  1876. 

Opinion  by  Judgk  Lindsay  : 

The  contractor,  Dozee,  was  an  independent  contractor.  The  fact 
that  Molls  was  to  superintend  the  work,  with  power  "to  reject  any 
work  and  material  in  his  opinion  deemed  imperfect  and  not  agree- 
ing with  the  plans  and  specifications"  of  the  contract  is  not  incon- 
sistent with  this  conclusion.  Robinson  &  Pettit  v.  Speed,  et  ai, 
Mss.  Opinion,  1875. 

The  court  should  have  instructed  the  jury  upon  this  assumption, 
and  not  left  it  an  open  question  as  was  done  by  instruction  No.  3. 


Wm.  H.  Pelton  v.  City  of  Hopkinsville.  591 

The  city  is  not  necessarily  bound  to  answer  for  the  carelessness  or 
negligence  of  the  contractor.  If  the  work  or  any  portion  of  it  was 
of  such  a  character  as  to  be  likely  to  result  in  injury  to  person  or 
property  even  when  skilfully  performed,  then  it  was  intrinsically 
dangerous,  and  for  any  injury  resulting  from  the  dangerous  char- 
acter of  the  work,  and  not  directly  from  the  negligence  or  careless- 
ness of  the  contractor,  it  may  be  held  to  answer. 

But  unless  the  work  was  of  the  dangerous  character  indicated,  as 
the  contractor  was  an  independent  one,  the  duty  of  the  city  to  guard 
against  his  negligence  in  the  obstruction  of  the  streets,  sidewalks 
and  crossings,  was  of  the  same  nature  with  its  duty  to  look  after  and 
guard  against  the  negligence  of  any  other  person.  It  is  liable  for 
injuries  caused  by  its  neglect  or  omission  to  keep  the  streets,  side- 
walks and  crossing  free  from  obstructions  placed  in  them  by  the 
contractor  or  his  servants ;  but  as  this  liability  must  be  based  upon 
negligence,  the  appellant  cannot  recover  unless  the  work  was  in- 
trinsically dangerous,  or  unless  the  corporation  had  notice  of  the 
obstruction,  or  the  circumstances  were  such  that  it,  by  using  the 
exercise  of  reasonable  diligence,  could  have  had  such  notice,  and 
then  negligently  failed  to  remove  it. 

The  first  and  second  instructions  asked  for  appellant  were  prop- 
erly refused.  In  each  of  them  it  was  assumed  that  Dozee  was  the 
servant  of  the  city,  instead  of  an  independent  contractor.  The  con- 
cluding portion  of  instruction  No.  3,  given  by  the  courts,  was  mis- 
leading, and  prejudicial  to  appellant. 

The  jury  should  have  been  told  that  notwithstanding  the  liability 
of  the  contractor,  in  the  state  of  case  set  out,  still,  if  the  crossing 
was  obstructed,  and  the  city  had  notice  thereof,  or  could  by  the  exer- 
cise of  reasonable  diligence  in  the  discharge  of  its  municipal  duties 
have  had  such  notice,  and  yet  negligently  failed  or  omitted  to  remove 
the  obstruction,  it  was  liable  to  answer  for  the  injury. 

Instruction  No.  3  asked  by  appellant  should  have  been  given  in- 
stead of  the  instruction  No.  5,  which  the  court  did  give.  Louisville, 
Cincinnati  &  Lexington  R,  Co.  v.  Case's  Admr,,  9  Bush  728. 

For  the  single  error  pointed  out  above  the  judgment  is  reversed 
and  the  cause  remanded  for  a  new  trial  upon  principles  consistent 
with  this  opinion. 

Sanders  &  Clark,  for  appellant. 

H.  A.  Phelps  &  Son,  E,  P.  Campbell,  Harry  Ferguson,  for  ap- 
pellee. 


592  Kentucky  Opinions. 

w.  h.  dulaney,  et  al.,  v,  bowman,  et  al. 

Cities— -Street  Improvements— Contract  for. 

City  councils  may  contract  for  street  Improyements  without  being 
I>etitloned  therefor  by  taxpayers  and  propeity  owners. 

Assessments  of  Property. 

Lot  owners  assessed  for  adjoining  street  improvements,  where  made 
in  compliance  with  the  ordinance  and  contract  and  completed  accord- 
ing thereto,  must  submit  to  an  assessment  of  such  lots  to  pay  the  cost 
of  such  improvement. 

Confiscation. 

While  the  courts  have  power  to  arrest  taxation,  to  prevent  confisca- 
tion of  property,  such  power  will  not  be  used,  except  to  prevent  legal- 
ized spoliation  under  the  guise  of  taxation. 

APPEAL  PROM  LOUISVILLE  CHANCERY  COURT. 

January  29,  1876. 

Opinion  by  Judge  Cofer  : 

By  an  ordinance  passed  by  the  general  council  of  the  city  of  Louis- 
ville, and  approved  by  the  mayor  on  the  nth  of  September,  1872,  it 
was  ordained  that  Eighteenth  street,  from  the  south  side  of  Ken- 
tucky street  to  the  center  of  Oak  street,  be  improved  by  grading  the 
same  according  to  the  provisions  of  an  ordinance  approved  on  the 
5th  of  May,  1875,  entitled  "an  ordinance  concerning  the  improve- 
ment of  streets,  and  curbing  the  same  with  stone  curb  and  corner 
stones  at  the  intersection  of  streets  and  alleys,  block  paving  the 
gutters,  making  foot  crossings,  and  paving  the  carriage  way  between 
the  gutters  with  macadam  pavement ;  the  work  to  be  done  at  the  cost 
of  the  owners  of  ground  fronting  Eighteenth  street  on  the  east  to 
one-half  the  distance  to  Gaulbert  street,  and  on  the  west  side  to  the 
depth  of  210  feet,  the  work  to  be  contracted  for  by  squares." 

The  work  from  the  center  of  Harney  street  to  the  center  of  Gal- 
lagher street,  one  square,  was  let  to  G.  W.  Hider,  who  gave  bond, 
and  on  the  2nd  day  of  October  entered  into  a  written  contract  with 
the  city  to  do  the  work  according  to  the  provisions  of  the  ordinance 
of  the  nth  of  September,  1872,  and  the  5th  of  May,  1870,  and  to 
complete  the  same  within  nine  months  from  the  date  of  the  con- 
tract. In  March,  1873,  the  contract  was  transferred  by  Hider  to 
the  appellees.  Bowman  &  Co.,  with  the  assent  of  the  general  council. 

Bowman  &  Co.  did  the  work  according  to  the  specifications  of  the 
ordinances  mentioned  in  the  contract,  and  it  was  received  by  the  city, 


W.  H.  DULANEY,  ET  AL.,  V,  BoWMAN,  ET  AL.  593 

and  an  apportionment  of  the  cost  atnong  the  owners  of  adjacent  lots 
and  ground  was  made  by  the  city  engineer,  and  approved  by  the 
general  council,  apportionment  warrants  were  issued  in  accordance 
with  the  requirements ;  and  the  appellants,  W.  H.  Dulaney  and  G.  F. 
Downs,  who  owned  lots  on  the  cast  side  of  Eighteenth  street,  and 
Mrs.  M.  J.  Dulaney,  wife  of  W.  H.  Dulaney,  who  owns  as  general 
estate  the  ground  on  the  west  side  of  Eighteenth  street  from  Harney 
to  Gallagher  street,  having  refused  to  pay  the  assessments  against 
them  for  that  part  of  the  cost  of  the  street  improvement  apportioned 
against  them  respectively,  this  suit  was  brought  for  the  purpose  of 
enforcing  an  alleged  lien  in  favor  of  the  appellees,  Bowman  &  Co., 
and  to  sell  the  lots  and  ground  of  the  appellants,  Downs  &  Dulaney, 
and  of  Mrs.  Dulaney,  to  satisfy  the  claims  against  them  respectively. 

The  appellants  all  denied  that  the  ordinance  of  the  nth  of  Sep- 
tember ordaining  the  work  to  be  done  was  passed  at  their  instance 
or  request ;  they  also  denied  that  said  ordinance  was  legally  passed  by 
the  general  council,  or  that  it  is  legal  or  valid,  or  that  the  contract 
was  a  legal  or  valid  contract ;  and  they  denied  that  the  apportionment 
of  the  cost  of  the  work  was  legal  or  properly  made,  or  that  they  are, 
or  either  of  them  is  liable  for  any  part  of  the  cost  of  said  work. 

Mrs.  Dulaney  and  her  husband,  as  to  the  ground  owned  by  her, 
say  that  she  owns  by  descent  from  her  father  173  acres  of  land  ad- 
joining and  on  the  west  side  of  Eighteenth  street;  that  said  land 
is  and  has  been  for  many  years  past  continuously  used  for  agricul- 
tural purposes,  and  has  not  been  divided  into  lots  or  devoted  to  city 
purposes;  that  it  was  not  brought  within  the  city  limits  at  the  re- 
quest of  herself  or  her  husband ;  that  the  extension  of  the  city  limits 
so  as  to  bring  said  tract  of  land  within  them  was  not  necessary  and 
was  unreasonable;  that  she  does  not  derive  any  greater  advantages 
by  said  extension  than  were  enjoyed  before  it  was  made;  that  her 
land  is  not  required  and  is  not  necessary  for  city  purposes ;  that  the 
chief  object  of  the  extension  was  to  increase  the  revenue  of  the  city 
without  regard  to  her  interest ;  and  that  the  effect  of  a  recovery  by 
the  contractors  will  be  to  subject  her  property  to  burthens  for  the 
benefit  of  others  without  benefit  to  her.  They  also  allege  that  for 
many  years  before,  and  up  to  within  a  short  time  of  the  doing  of  the 
work  the  price  of  which  is  sued  for,  there  was  a  turnpike  road  where 
Eighteenth  street  now  is,  which  was  owned  and  kept  in  repair  by 
a  turnpike  company ;  said  tract  of  land  bordered  on  the  turnpike,  and 
by  means  of  that  road  access  could  be  had  to  the  tract  of  land ;  that 


38 


594  Kentucky  Opinions. 

the  city  brought  so  much  of  the  turnpike  as  was  within  its  limits  but 
refused  to  keep  it  in  repair. 

In  view  of  the  fact  that  the  land  of  Mrs.  Dulaney  is  used  only  for 
agricultural  purposes,  and  the  alleged  lack  of  any  benefit  resulting 
to  her  from  the  improvement,  it  is  claimed  that  the  assessment  as 
to  her  is  in  violation  of  that  part  of  section  14  of  article  13  of  the  con- 
stitution of  Kentucky,  which  reads  as  follows :  "Nor  shall  any  man's 
property  be  taken  or  applied  to  public  use  without  the  consent  of 
his  representatives,  and  without  just  compensation  being  previously 
made  to  him." 

The  vice  chancellor  rendered  judgment  decreeing  a  lien  on  and 
a  sale  of  the  property  of  Downs  &  Ehilaney  and  wife,  and  they  have 
appealed. 

The  charter  of  Louisville,  passed  in  1870,  provides  for  construct- 
ing and  reconstructing  streets  where  the  entire  territory  through 
which  such  streets  pass  has  been  defined  into  squares  by  principal 
streets,  but  does  not  provide  for  assessments  to  pay  for  improving 
or  repairing  streets  where  squares  are  not  thus  laid  off.  Caldwell^ 
et  al,  V,  Rupert,  et  al.,  10  Bush  179 ;  Craycrafts  v.  Redd  &  Bro.,  Mss. 
Opinion,  April  18,  1874. 

But  by  an  act  of  February,  1872,  it  is  provided  that  the  general 
council  should  have  power  to  provide  by  ordinance  or  resolution  for 
the  improvement  of  public  ways  where  the  contiguous  territory  is 
not  defined  into  squares  by  principal  streets ;  that  act  also  provides 
that  in  such  cases  the  ordinance  or  resolution  shall  prescribe  the 
depth  on  both  sides  of  the  street  to  be  assessed  for  paying  the  cost, 
and  the  apportionment  is  required  to  be  according  to  the  number  of 
square  feet  owned  by  the  parties  respectively  within  the  depth  pre- 
scribed by  the  ordinance.  Sec.  9,  Success's  Charter  and  Ordinances, 
p.  71.  The  charter  as  originally  passed,  and  which  was,  on  this 
point,  applicable  alone  to  territory  defined  into  squares,  provided  the 
same  basis  of  apportionment  except  that  corner  lots  to  the  width  of 
not  more  than  thirty  feet,  and  to  a  depth  to  be  prescribed  by  ordi- 
nance, were  required  to  be  taxed  twenty-five  per  cent,  more  than 
other  lots. 

The  territory  east  of  Eighteenth  street  was  defined  into  a  square, 
but  that  on  the  west  was  not,  and  in  making  the  apportionment  the 
northwest  and  southwest  comer  lots  were  assessed  at  twenty-five 
per  cent,  more  than  any  others,  but  on  the  west  side  of  the  street  the 
whole  was  assessed  at  the  same  rate  because  it  did  not  compose  a 
part  of  a  square.   East  of  the  street  the  territory  was  assessed  to  * 


W.  H.  DULANEY,  ET  AL.,  V.  BoWMAN,  ET  AL.  595 

one-half  the  depth  of  the  square  extending  from  Eighteenth  to  Gaul- 
bert  street,  and  as  those  streets  do  not  run  parallel  to  each  other, 
the  distance  to  which  the  taxing  district  extended  back  from 
Eighteenth  street  was  not  the  same  on  all  the  lots,  the  distance  at 
the  northwest  comer  being  i8o  feet  and  at  the  southwest  corner 
311  feet. 

It  will  thus  be  observed  that  the  original  charter  and  the  amend- 
ment of  February,  1872,  were  both  resorted  to  for  rules  to  govern 
the  assessment.  On  the  east  side  the  assessment  extended  one-half 
the  distance  from  Eighteenth  street  to  Gaulbert  street,  and  corner 
lots  were  assessed  twenty-five  per  cent,  more  than  other  lots  as  re- 
quired by  the  original  charter,  while  on  the  west  side  the  assessment 
was  extended  back  210  feet  as  prescribed  by  the  ordinance  passed 
under  the  amendment  to  the  charter. 

This  seems  to  us  to  have  been  correct.  The  original  charter  and 
the  amendment  must  now  be  construed  as  one  act,  and  when  so  con- 
strued the  requirements  are  as  to  defined  squares  that  the  assessment 
shall  be  by  the  fourth  of  a  square,  and  as  to  territory  not  so  defined 
the  general  council  is  left  to  fix  the  depth  to  which  it  shall  extend. 

The  appellees  had  a  lien  on  the  ground  assessed,  for  although  it 
is  not  given  by  the  act  of  February,  1872,  when  that  act  is  considered 
by  itself,  yet  it  was  given  by  section  12  of  the  original  charter  for 
the  cost  of  improving  public  ways,  and  when  by  amendment  of  the 
charter  other  ways  were  authorized  to  be  improved  at  the  cost  of  the 
owners  of  property,  a  lien  exists  under  section  12,  for  the  latter  are 
as  much  public  ways  as  those  authorized  by  the  original  charter. 

It  is  insisted  that  because  the  depth  to  which  the  assessment  ex- 
tended on  one  side  of  the  street  is  greater  than  that  to  which  it  ex- 
tended on  the  other,  that  the  assessment  is,  therefore,  unequal  and  a 
violation  of  the  rule  that  taxation  must  be  uniform.  Exact  equality 
in  taxation  is  not  always  attainable,  and  it  is  not  perceived  how  it 
could  have  been  more  nearly  attained  than  it  has  been  in  this  case. 
The  assessment  was  on  the  square  foot,  and  each  lot  owner  was  re- 
quired to  pay  a  proportion  of  the  cost  equal  to  the  proportion  which 
the  number  of  feet  owned  by  him  bore  to  the  whole  number  of  feet 
in  the  boundary  taxed.  No  reason  is  perceived  why  the  general 
council  should  have  so  laid  out  the  district  on  the  west  of  the  street 
as  to  make  it  contain  exactly  the  same  number  of  feet  contained  in 
one-half  the  square  on  the  opposite  side.  The  evidence  shows  that  if 
the  street  next  west  of  Eighteenth  street  was  extended  through  to 
Gallagher  street,  the  square  bounded  by  Harney,  Eighteenth  street, 


596  Kentucky  Opinions. 

Gallagher  and  the  street  west  of  Eighteenth  street  would  be  420  feet 
deep  from  Eighteenth  street  west,  and  it  may  safely  be  assumed  that 
if  the  street  is  ever  extended  that  will  be  the  size  of  the  square. 

Section  7  of  the  city  charter  provides  that  no  ordinance  shall  be 
passed  by  the  general  council  tmtil  it  shall  have  been  read  in  each 
board  at  two  several  meetings,  and  free  discussion  allowed  thereon, 
unless  that  provision  should  be  suspended  by  a  vote  of  two-thirds  of 
all  the  members  elect  to  the  board  in  which  the  proposed  ordinance 
is  pending.  The  proceedings  of  the  board  of  aldermen  show  that  the 
ordinance  for  improving  Eighteentli  street  **was  read  once  and  or- 
dered to  be  read  a  second  time ;  and  the  second  reading  being  dis- 
pensed with  by  a  vote  of  two-thirds  of  the  members  elect,  the  same 
was  passed."  Yeas,  9 ;  nays,  o. 

This  seems  to  us  to  have  been  a  literal  compliance  with  the  char- 
ter provision.  To  dispense  with  the  second  reading  was  to  dispense 
with  provision  that  the  reading  should  be  at  two  several  meetings, 
for  if  the  reading  at  any  time  be  dispensed  with  this  necessarily  dis- 
penses with  such  reading  at  a  subsequent  meeting ;  having  dispensed 
with  the  second  reading  entirely,  it  cannot  have  been  necessary  to 
recite  on  the  record  that  such  reading  at  the  next  or  some  subsequent 
meeting  was  dispensed  with. 

The  charter  requires  ordinances  for  the  improvement  of  puMic 
ways,  when  not  petitioned  for  by  the  owners  of  a  majority  of  the 
square  feet  of  ground  liable  to  be  assessed  for  such  improvement,  to 
be  voted  for  on  their  final  passage  by  yeas  and  nays,  and  to  receive 
the  vote  of  a  majority  of  the  members  elected  to  each  board  of 
the  general  council.  The  ordinance  for  the  improvement  of 
Eighteenth  street  was  passed,  but  the  ordinance  of  the  5th  of  May. 
1870,  which  prescribes  how  improvements  shall  be  made,  and  which 
is  referred  to  both  in  the  Eighteenth  street  ordinance  and  in  the  con- 
tract, was  not  so  passed ;  and  it  is  agreed  that  the  assessment  is  for 
that  reason  illegal.  The  ordinance  of  the  5th  of  May  is  not  an  ordi- 
nance for  the  improvement  of  a  public  way,  and  is  not  the  kind  of 
ordinance  referred  to  in  this  provision  of  the  charter ;  it  simply  pre- 
scribes how  improvements  of  certain  kinds  or  classes  shall  be  made. 

If  that  ordinance  had  never  been  enacted  at  all,  or  had  been  re- 
pealed, or  if  the  Eighteenth  street  ordinance  had  referred  to  a  report 
of  the  city  engineer  for  the  kind  and  specifications  of  the  work,  or 
to  an  identified  paper,  not  even  of  an  official  character,  it  would 
have  been  sufficient.    Nor  do  we  concur  with  counsel  for  the  appel- 


W.  H.  DULANEY,  ET  AL.,  V,  BoWMAN,  ET  AL.  597 

lants  that  the  Eighteenth  street  ordinance  is  invalid  because  ordi- 
nance 377  liad  not  been  formally  repealed. 

The  provision  in  the  charter  of  1870  that  the  ordinances  then  in 
force  should  remain  in  force  until  repealed,  did  not  render  an  express 
repeal  necessary,  nor  give  to  those  ordinances  the  dignity  or  force 
of  state  statutes.  The  only  object  of  the  legislature  in  enacting  this 
provision  was  to  prevent  the  repeal  of  such  parts  of  the  old  charter 
as  were  repugnant  to  the  new,  from  operating,  as  it  might  otherwise 
have  done,  to  repeal  the  ordinances  passed  under  it. 

The  charter  provides  that  "improvements,  as  applied  to  public 
ways,  shall  mean  all  work  and  material  used  upon  them  in  the  con- 
struction and  reconstruction  thereof,  and  shall  be  made  and  done, 
as  may  be  prescribed  by  ordinance,  at  the  exclusive  cost  of  the  own- 
ers of  lots  in  each  fourth  of  a  square,  etc.  Under  this  provision  all 
construction  and  reconstruction  of  the  public  ways  of  the  city  are 
required  to  be  done  at  the  cost  of  the  owners  of  lots  in  each  fourth 
of  a  square,  i.  e.,  the  lots  in  each  fourth  of  a  square  must  be  taxed  to 
pay  for  the  construction  and  reconstruction  of  the  public  ways  ad- 
jacent to  such  fourth  of  a  square ;  and  as  the  law  contemplates  the 
improvement  of  the  whole  street  at  the  cost  of  lot  owners,  it  results 
of  necessity  that  each  fourth  of  a  square  must  be  assessed  for  its 
proportion  of  street  intersections. 

The  ordinance  required  the  contracts  for  the  improvement  of 
Eighteenth  street  to  be  by  squares,  i.  e.,  all  that  part  of  the  street 
for  improving  which  the  lots  in  the  adjacent  squares  were  liable, 
should  be  included  in  one  contract,  and  one-half  the  width  of  Harney 
and  Gallagher  streets  was  therefore  properly  included  in  the  con- 
tract in  this  case. 

The  contract  and  ordinance  for  improving  Eighteenth  street  pro- 
vided for  the  construction  of  foot  crossings  across  that  street;  but 
instead  of  putting  them  across  it  they  were  constructed  longitudi- 
nally with  Eighteenth  street  extending  half-way  across  Harney  and 
Gallagher  streets.  This  was  not  a  compliance  with  either  the  ordi- 
nance or  the  contract,  and  it  is  insisted,  therefore,  that  the  lot  owners 
are  not  liable  for  any  part  of  the  work  done.  These  foot  crossings 
at  the  contract  price  cost  $106.37,  ^^^  ^^^r  c^*  ^s  included  in  the 
apportionment  against  the  appellants. and  in  the  decree  of  the  vice- 
chancellor. 

No  objection  was  taken  in  the  answer  to  this  item,  nor  to  any 
other,  except  by  the  general  denials  recited  in  the  beginning  of  this 
opinion.   The  engineer's  report  of  the  apportionment  in  which  each 


598  Kentucky  Opinions. 

item  of  the  work  done  is  separately  and  plainly  stated,  seems  to  have 
been  filed  with  the  petition;  and  it  was  appellant's  duty  to  set  forth 
in  their  answers  any  deviation  from  the  terms  of  the  contract  which 
they  meant  to  rely  on  to  reduce  the  amount  of  the  recovery.  The 
work  having  been  accepted  by  the  city,  the  lot  owners,were  certainly 
bound  to  pay  for  so  much  of  it  as  was  in  fact  done  according  to  the 
ordinance  and  contract,  and  if  any  part  of  it  was  not  so  done,  that 
fact  should  have  been  set  up  as  a  partial  defense,  and  the  charge  for 
it  might  have  been  recouped  from  the  contract  price  of  the  whole 
work.  But  as  the  appellants  chose  to  rely  upon  a  defense  to  the  whole 
action,  they  are  not  entitled  to  the  benefit  of  a  partial  defense  not 
made. 

We  do  not  mean  to  be  understood  as  deciding  that  mere  defects  in 
the  execution  of  work  of  this  kind  can  be  inquired  into  after  the 
work  has  been  received  by  the  city ;  all  we  mean  to  say  is  that  if  an 
item  of  work  stipulated  for  is  not  done  at  all,  or  is  done  wholly 
outside  of  the  requirements  of  the  ordinance  and  contract,  the  lot 
owners  may  present  that  fact  as  a  defense  pro  tanto. 

Both  the  ordinance  and  contract  sufficiently  indicate  the  kind  of 
improvement  to  be  made  on  the  carriage  way.  Thfey  both  require 
macadam  pavament,  which  is  distinguished  from  "Telford  macadam 
pavement"  by  the  ordinance  of  the  5th  of  May,  1870. 

The  city  council  is  made  the  exclusive  judge  of  the  necessity  and 
propriety  of  making  any  street  improvement  which  it  has  authority 
to  contract  for ;  and  we  need  not,  therefore,  stop  to  inquire  whether 
the  old  turnpike  which  formerly  occupied  the  present  site  of 
Eighteenth  street  was  sufficient  for  the  public  use  or  for  the  com- 
fort and  convenience  of  the  owners  of  property  situated  on  it. 

The  only  remaining  question  deemed  necessary  to  be  particularly 
noticed  is  whether  the  land  of  Mrs.  Dulaney  is  exempted  from  the 
assessment  on  account  of  its  location  and  use.  The  evidence  shows 
that  for  a  considerable  distance  south  of  Harney  street  the  ground 
east  of  Eighteenth  street  had  been  laid  out  into  squares  separated 
by  principal  streets,  and  the  squares  subdivided  into  lots,  many  of 
which  have  been  sold  and  improved ;  it  also  shows  that  lots  between 
Harney  and  Gallagher  on  Eighteenth  street,  and  directly  opposite 
to  the  land  claimed  to  be  exempted  as  farm  land,  are  worth  from 
fifteen  to  twenty-five  dollars  per  front  foot,  and  that  Mrs.  Dulaney's 
land  has  been  considerably  enhanced  in  value  by  the  improvement. 
Her  land  is  only  separated  by  an  ordinary  street  from  the  exterior 


John  R.  Bradley  v.  Commonwealth.  599 

limits  of  property  owned  and  used  exclusively  as  city  property,  and 
which  is  to  all  intents  and  purposes  a  part  of  the  city. 

While  we  have  repeatedly  held  that  town  taxation  may  be  arrested 
by  the  judiciary  on  the  ground  that  it  is,  in  effect,  the  taking  of  pri- 
vate property  for  public  use,  we  have  constantly  said,  in  effect,  that 
such  attempted  taxation  must  be  a  flagrant  outrage  or  palpable 
wrong  before  the  courts  can  interfere.  Cheaney  v.  Hooser,  9  B. 
Mon.  330;  City  of  Covington  v.  Southgate,  15  B.  Mon.  491 ;  Louis- 
ville  V.  Courtney,  Mss.  Opinion. 

The  court  must  be  able  to  see  clearly  and  without  danger  of  mis- 
take that  the  execution  is  not  in  any  proper  sense  a  tax,  but  is  in  fact 
but  legalized  spoliation  under  the  guise  of  taxation.  It  is  impossible 
to  say  on  the  facts  in  this  record  that  it  is  palpable  that  Mrs.  Du- 
laney's  land  has  been  subjected  to  burthens  without  benefit  to  her. 
The  evidence  shows  the  contrary,  and  we  cannot  say  that  to  compel 
her  to  pay  the  assessment  would  be  the  taking  of  her  property  for 
public  use  without  compensation. 

Wherefore  the  judgments  appealed  from  are  all  affirmed. 

R,  /.  Elliott,  for  appellants, 
Russell  &  Helm,  for  appellees. 
T.  L.  Burnett,  for  Louisville. 


John  R.  Bradley  v.  Commonwealth. 

Criminal  Law — ^Assault  with  Intent  to  Kill — Indictment. 

An  indictment  for  assault  and  battery  with,  intent  to  kill  is  good 
even  though  it  does  not  contain  an  averment  that  it  was  done  without 
previous  malice. 

Arrest  of  Judgment. 

A  motion  to  arrest  judgment  will  only  be  sustained  when  the  In* 
dictment  fails  to  contain  a  statement  of  facts  constituting  a  public 
offense  within  the  Jurisdiction  of  the  court. 

APPEAL  FROM  FLOYD  CIRCUIT  COURT. 

February  1,  1876. 

Opinion  by  Judge  Cofer  : 

The  indictment  in  this  case  was  evidently  found  under  Sec.  i,  Art. 
17,  Chap.  29,  of  the  General  Statutes,  which  provides  that  "if  any 
person  shall,  in  sudden  affray,  or  in  sudden  heat  and  passion,  with- 


6oo  Kentucky  Opinions. 

out  previous  malice,  and  not  in  self-defense,  shoot  and  wound  an- 
other person  with  a  gun  or  other  instrument,  loaded  with  ball  or 
other  hard  substance,  without  killing  such  person ;  or  shall,  in  like 
manner,  cut,  thrust,  or  stab  any  other  person  with  a  knife,  dirk, 
sword,  or  other  deadly  weapon,  without  killing  such  person,  he  shall 
be  fined,"  etc. 

The  indictment  contains  an  allegation  that  the  appellant  did  un- 
lawfully in  sudden  affray  and  not  in  self-defense,  cut,  thrust,  and 
stab  George  E.  Keens  with  a  knife,  etc.;  but  does  not  contain  any 
allegation  that  it  was  done  without  previous  malice ;"  and  it  is  con- 
tended that  the  omission  is  fatal,  and  that  the  court  erred  in  refus- 
ing to  arrest  the  judgment. 

The  court  is  only  authorized  to  arrest  judgment  when  the  indict- 
ment does  not  contain  a  statement  of  facts  constituting  a  public  of- 
fense within  the  jurisdiction  of  the  court.  Sec.  271,  Cr.  Code.  The 
only  inquiry  on  this  branch  of  the  case,  therefore,  is  whether,  the  al- 
legation that  the  cutting  was  without  previous  malice  being  omitted, 
the  indictment  contains  a  statement  of  facts  constituting  a  public 
offense  within  the  jurisdiction  of  the  court.  That  it  does  is,  we  think, 
beyond  dispute.  The  facts  stated  show  that  the  defendant  is  guilty 
of  the  common-law  offense  of  assault  and  battery,  even  though  there 
may  not  be  sufficient  averments  to  constitute  an  offense  under  the 
statute.  We  are,  therefore,  of  the  opinion  that  the  court  did  not  err 
in  overruling  the  motion  to  arrest  the  judgment. 

But  if  the  indictment  is  only  good  as  an  indictment  for  an  as- 
sault and  battery,  the  instructions  given  were  erroneous  in  respect 
to  the  punishment  which  the  jury  were  told  they  should  inflict  in  the 
event  they  found  the  defendant  guilty.  It  is,  therefore,  necessary  to 
decide  whether  the  indictment  is  good  under  the  statute. 

The  existence  of  malice  could  neither  excuse  or  mitigate  the  of- 
fense denounced  by  the  section  under  which  the  indictment  was 
found ;  and  it  cannot,  therefore,  have  been  necessary  for  the  protec- 
tion of  the  defendant  or  to  enable  him  to  prepare  for  his  defense 
that  the  existence  of  malice  should  be  negatived  by  tlie  indictment. 
The  only  purpose  the  legislature  could  have  intended  to  accomplish 
by  the  use  of  those  words  was  to  distinguish  the  offense  punishetl 
by  that  section  from  the  crime  described  in  section  2  of  article  6  of 
the  same  chapter. 

We  therefore  conclude  that  the  indictment  is  good  under  the  stat- 


Martin  &  Ball  v,  Shelby  &  Dalton.  6oi 

ute.     No  specific  objections  to  the  instructions  given  have  been 
pointed  out,  and  perceiving  none  ourselves  the  judgment  is  afHrmed, 
A.  Duvall,  for  appellant.    T.  E.  Moss,  for  appellee. 


Martin  &  Ball  v.  Shelby  &  Dalton. 

Practice— InstructioRS  Now  Made  a  Part  of  the  Record. 

Instructions  offered  but  refused  to  be  given  by  tbe  court  do  not  be- 
come a  part  of  the  record  by  a  mere  recital  in  an  order  of  the  court 
that  they  were  asked  and  refused.  They  must  be  made  a  part  of  the 
record  either  by  the  court's  order  or  by  bill  of  exceptions. 

APPEAL  PROM  BALLARD  CIRCUIT  COURT. 

February  2,  1876. 

Opinion  by  Judge  Cofer  : 

Instructions  Nos.  i,  2,  3,  4  and  11  asked  by  the  appellants  and  re- 
fused by  the  court  are  not  made  a  part  of  the  record,  although  the 
order  of  court  recites  that  they  were  asked  and  refused,  and  that 
the  appellants  then  excepted  to  the  refusal.  The  rule  is  that  instruc- 
tions refused  do  not  become  a  part  of  the  record  by  a  mere  recital  in 
an  order  of  the  court  that  they  were  asked  and  refused. 

Being  refused,  they  are  the  private  papers  of  the  party  offering 
them,  and  never  came  to  the  custody  of  the  clerk  as  a  part  of  the 
record  unless  expressly  made  part  of  it  by  the  order  or  by  bill  of 
exceptions;  but  instructions  recited  on  the  record  as  g^ven  thereby 
became  a  part  of  the  record,  and  when  identified  by  the  certificate  of 
the  clerk  may  be  considered  by  this  court. 

To  instructions  numbered  6  and  7  given  by  the  court,  the  appellants 
excepted,  and  these  we  may  consider  as  a  part  of  the  record,  but  they 
seem  to  us  to  have  been  correct.  Instructions  8,  9  and  10  were  given 
on  motion  of  appellants. 

The  verdict  does  not  seem  to  us  to  be  so  palpably  against  the  evi- 
dence as  to  warrant  a  reversal  on  that  ground.  Two  juries  have 
found  against  the  appellants  on  the  evidence,  and  if  the  propriety  of 
their  finding  was  even  more  doubtful  than  we  think  it  is,  we  should 
not  feel  authorized  to  interfere. 

Judgment  affirmed. 

Reeves  &  Brown,  Thomas,  for  appellants. 
W.  G.  Bullitt,  Bugg  &  Bishop,  for  appellees. 


6o2  Kentucky  Opinions. 

James  C.  Townsend  v,  W.  O.  Britt. 

Practice— Bond  for  Costs— Dismissal  of  .Action — Waiver. 

The  defendant  has  the  right  to  have  an  action  against  him  dis* 
missed  when  a  non-resident  plaintiff  fails  to  give  bond  for  costs,  but 
by  failing  to  move  a  dismissal  he  waives  the  right. 

Notice  by  Surety  to  Sue. 

Where  not  waived  by  the  creditor  a  written  notice  to  sue  must  be 
served  on  him  by  a  surety,  if  such  surety  desires  him  to  sue  the  prin- 
cipal. 

APPEAL  FROM  GRAVES  CIRCUIT  COURT. 

February  2,  1876. 

Opinion  by  Judge  Lindsay: 

Although  the  defendant  had  the  right  at  any  time  before  judg- 
ment to  have  the  action  dismissed,  because  the  non-resident  plaintiff 
did  not  give  bond  for  costs  when  he  commenced  his  suit,  yet  as  no 
such  motion  was  made  in  the  court  below,  the  question  cannot  be 
raised  in  this  court  for  the  first  time. 

It  is  immaterial  whether  appellant  did  or  did  not  notify  appellee  to 
sue  in  the  Tennessee  courts.  It  is  sufficient  for  the  purposes  of  this 
action  that  he  did  not  make  a  successful  defense  in  the  Tennessee 
courts.  And  as  we  cannot  reverse  the  judgment  of  the  court,  we 
need  not  inquire  as  to  the  effect  of  appellee's  laches  before  said  judg- 
ment was  rendered. 

The  proof  does  not  show  that  the  appellee  waived  written  notice 
as  to  the  desire  of  appellant  that  he  should  proceed  with  legal  dili- 
gence to  collect  his  judgment  out  of  the  property  of  the  principal 
debtor.  The  most  that  appellant  swears  on  this  subject  is  that  ap- 
pellee "did  not  require  me  to  pve  him  a  written  notice,  and  he  did 
not  say  he  would  or  would  not  sue."  If  he  had  said  he  would  sue, 
that  might  have  been  construed  into  a  warrant  of  written  notice,  but 
his  failure  to  say  what  he  would  do  will  admit  of  no  such  deduction. 
In  the  case  of  Hamblin  v,  McCallister,  in  4  Bush  418,  when  the 
surety  offered  to  give  written  notice,  the  creditor  said,  "I  do  not  re- 
quire a  written  notice ;  I  waive  a  written  notice,  a  verbal  notice  is  all 
that  is  necessary."  Then  as  no  such  notice  was  given  before  judg- 
ment, as  required  appellee  either  to  sue  or  to  proceed  with  legal  dili- 
gence after  judgment  to  collect  his  debt,  it  is  necessary  to  inquire 
whether  legal  notice  to  proceed  to  its  enforcement  was  given  after 
the  rendition  of  the  judgment. 


Huston,  Johnson  &  Co.  v,  T.  J.  Strow.  603 

Appellant  swears,  '*I  did  instruct  Britt  by  a  letter  to  go  on  and 
make  his  money  after  judgment."  It  is  not  proved  that  Britt  re- 
ceived this  letter,  but  we  will  assume  that  he  did.  Appellant  does  not 
state  how  long  after  judgment  it  was  that  the  letter  was  written. 

An  execution  was  sued  out  about  six  months  after  the  date  of  the 
judgment.  It  was  levied  on  a  tract  of  land,  the  only  property  owned 
by  the  principal  debtor,  subject  to  levy  and  sale.  There  was  no  un- 
necessary delay,  after  the  suing  out  of  this  execution,  until  the  land 
was  offered  for  sale.  It  was  not  the  fault  of  appellee  that  it  would 
not  sell,  and  he  was  not  bound  to  indulge  appellant  until  the  levy 
could  be  enforced  by  a  sale. 

From  anything  that  appears  in  this  record,  appellee  sued  out  his 
execution,  as  soon  as  he  received  appellant's  letter,  if  he  ever  did 
receive  it.  The  court  below  did  not  err  in  allowing  the  Tennessee 
record  to  be  read  on  the  trial  of  the  cause.  The  exception  shows  that 
it  was  then  on  file. 

The  judgment  of  the  court  below  is  affirmed. 

Stubblefield  &  Smith,  for  appellant.    W.  H.  Miller,  for  appellee. 


Huston,  Johnson  &  Co.  v.  T.  J.  Strow. 

Mortgage— Rents  of  Mortgaged  Real  E^state-^Receiver. 

The  mortgagor  of  real  estate  is  entitled  to  receive  the  rents,  and 
the  tenant  having  leased  such  pr^nises  and  paid  the  rent  for  the  term 
or  having  agreed  to  pay  it  to  the  owner,  cannot  be  required  to  pay 
such  rent  to  the  mortgagee  before  he  receives  tiUe  through  fore- 
closure. 

Receiver. 

The  mortgagee  in  an  action  to  foreclose  may  have  a  receiver  ap- 
pointed to  collect  the  rents  and  take  charge  of  the  property,  where 
it  is  shown  that  the  mortgaged  property  is  in  danger  of  being  lost, 
removed  or  materially  injured  and  that  the  property  is  probably  in- 
sufficient to  discharge  the  mortgage  debt,  but  when  no  receiver  is  ap- 
pointed the  mortgagee  is  not  entitled  to  such  rents. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

February  7,  1876. 

Opinion  by  Judge  Peters  : 

One  Morton  being  indebted  to  af^llee  in  the  sum  of  $5,000  due 
the  loth  of  July,  1870,  executed  to  appellee  a  mortgage  on  a  store- 


6o4  Kentucky  Opinions. 

house  and  lot  in  Paducah  to  secure  the  debt ;  Morton  retained  pos- 
session of  the  property,  and  on  the  ist  of  October,  1870,  after  the 
condition  of  the  mortgage  had  been  broken,  leased  it  to  Huston, 
Johnson  &  Co.,  who  entered  as  the  tenants  of  Morton,  and  continued 
to  occupy  until  the  premises  were  sold  in  the  fall  of  1874,  under  ap- 
pellee's judgment  of  foreclosure;  and  not  selling  for  enough  to  sat- 
isfy appellants'  debt,  interest  and  costs,  he  instituted  this  action  to 
compel  appellants  to  pay  him  a  reasonable  rent  for  the  premises  from 
the  26th  of  March,  1874,  until  the  same  were  sold  under  his  judg- 
ment, he  having  notified  them  that  he  would  look  to  them  for  the 
rent  from  said  date.  The  law  and  facts  having  been  submitted  to  the 
court,  and  a  judgment  having  been  rendered  in  favor  of  appellee 
against  appellants  for  the  rent  as  claimed,  they  have  appealed  to 
this  court. 

Appellants  first  leased  the  premises  from  Morton  from  the  ist  of 
October,  1870,  till  the  ist  of  January,  1872,  and  paid  the  rent  to 
Morton,  from  whom  they  leased  with  the  knowledge  and  without 
objection  on  the  part  of  appellee.  They  then  rented  from  Morton  for 
two  years  from  the  ist  of  January,  1872,  and  paid  the  rent  to  him 
without  objection  or  complaint  from  appellee;  and  on  the  ist  of 
January,  1875,  they  again  rented  the  premises  for  one  year  at  the 
price  of  $800  per  annum,  all  of  which  they  had  paid  Morton  before 
the  26th  of  March,  1875,  a  part  having  been  paid  in  rqiairs  on  the 
premises. 

Sec.  329,  of  the  Civil  Code,  provides  that  in  an  action  by  a  mort- 
gagee for  a  foreclosure  of  his  mortgage  and  sale  of  the  mortgaged 
property,  a  receiver  in  like  manner  may  be  appointed,  where  it  ap- 
pears that  the  mortgaged  property  is  in  danger  of  being  lost,  re- 
moved, or  materially  injured,  or  that  the  condition  of  the  mortgage 
has  not  been  performed,  and  that  the  property  is  probably  insuffi- 
cient to  discharge  the  mortgage  debt. 

The  right  of  the  mortgagor  to  remain  in  possession  of  the  mort- 
gaged premises  until  the  same  is  sold,  and  to  enjoy  the  use,  profits, 
or  rents,  or  until  an  action  is  brought  for  a  foreclosure,  and  a  re- 
ceiver be  appointed,  upon  it  being  made  to  appear  that  the  mon- 
gaged  property  is  in  danger  of  being  lost,  removed  or  materially  in- 
jured, or  that  the  condition  of  the  mortgage  has  not  been  performed, 
and  that  there  is  a  probability  that  the  property  is  insufficient  to  pay 
the  debt,  is  clear  and  manifest. 

The  remedy  pointed  out  by  the  statute  in  such  cases  is  direct, 
plain  and  effectual.   But  appellee  chose  a  diflferent  course,  one  not 


Thomas  A.  Dorsey  v.  James  H.  Sears.  605 

sanctioned  by  positive  law  nor  sustained  by  precedent.  And  we  there- 
fore conclude  the  relief  granted  him  by  the  court  below  was  unau- 
thorized, especially  as  it  is  shown  that  appellants  had  paid  the  rent 
to  Morton  before  they  were  notified.  Wherefore  the  judgment  is 
reversed  and  the  cause  is  remanded  for  further  proceedings  consist- 
ent herewith. 

King  &  Gilbert,  T,  E.  Moss,  for  appellant. 
P.  Palmer,  for  appellee. 


Thomas  A.  Dorsey  v,  James  H.  Sears. 

Husband  and  Wife — Liability  of  Wife  for  Necessaries. 

Where  goods  are  purchased  on  the  wife's  credit  by  the  husband 
and  were  necessaries  for  the  family,  the  estate  of  the  wife  may  be 
subjected  to  pay  for  them. 

APPEAL  FROM  NICHOLAS  CIRCUIT  COURT. 

February  10,  1876. 

Opinion  by  Judge  Pryor  : 

The  evidence  is  conclusive  that  the  goods  were  purchased  upon 
the  credit  of  the  wife  and  were  necessaries  for  the  family.  The  word 
necessaries  includes  not  only  such  articles  as  were  purchased  by  the 
wife,  but  such  as  were  purchased  by  the  husband  and  charged  to  the 
wife  for  his  use. 

The  husband  purchased  clothes  that  were  suitable  to  his  condition 
in  life,  and  of  no  greater  value  than  the  wife  with  her  small  estate 
could  afford  to  expend  upon  him.  He  was  insolvent.  The  account 
was  charged  to  the  wife,  and  every  article  purchased  or  with  which 
she  was  charged  were  necessaries  for  the  family.  It  was  not  neces- 
sary that  she  should  have  given  her  obligation  with  the  husband  at 
the  time  she  bought  the  goods.  After  the  account  fell  due  the  hus- 
band and  wife  executed  their  joint  note  for  the  money,  and  the  credit 
having  been  given  to  her,  the  estate  of  the  wife  should  have  been 
subjected  to  its  payment.  The  merchant  and  his  clerk  both  make  out 
a  clear  case  under  the  statute,  and  the  only  evidence  relied  on  to  re- 
but their  statements  is  that  of  the  husband,  and  his  statements  con- 
duce to  corroborate  their  testimony. 

In  purchasing  boards  to  cover  part  of  the  building  owned  by  the 
wife,  the  husband  gave  to  the  merchant  an  order  in  the  wife's  name 


n 


606  Kentucky  Opinions. 

to  pay  the  vendor  in  goods  and  charge  to  the  wife.  This  could  not 
have  been  dcme  if  the  credit  was  given  to  the  husband  or  die  hitter 
looked  to  for  payment  of  the  account.  Contracts  made  by  the  hus- 
band for  his  own  purposes,  such  as  the  purchase  of  stock  or  the 
renting  of  lands,  may  not  come  within  the  rule,  but  as  the  facts  are 
presented  in  this  record  there  is  no  reason  for  shielding  the  estate 
of  the  wife  from  the  payment  of  these  goods. 

The  only  appeal  on  this  record  is  that  of  Dorsey  against  the  ap- 
pellee. The  judgment  dismissing  the  petition  as  to  Dorsey  is  re- 
versed and  cause  remanded  with  directions  to  subject  the  estate  of 
the  wife  to  the  payment  of  the  debt. 

Thomas  Kennedy,  for  appellant.  Hargis  &  Norvell,  for  appellee. 


Noah  Rouse  z\  Commonwealth. 

Criminal  Law — Reasonable  Doubt — ^Instruction — Perjury. 

An  Instruction  in  a  criminal  case  is  erroneous  which  fails  to  say 
to  the  Jury  that  before  it  can  convict  it  must  believe  the  existence  of 
recited  facts  beyond  a  reasonable  doubt.  Saying  to  the  Jury  it  mast 
acquit  if  it  has  a  reasonable  doubt  as  to  the  guilt  of  the  accused  does 
not  dispense  with  the  necessity  of  charging  it  that  it  must  believe 
from  the  evidence  beyond  a  reasonable  doubt  that  such  facts  existed 
before  it  could  find  the  accused  guilty. 

APPEAL  FROM  CAMPBELL  CRIMINAL  COURT. 

February  11,  1876. 

Opinion  by  Judge  Pryor: 

The  leading  instruction  in  the  case  given  in  behalf  of  the  common- 
wealth and  the  one  reciting  the  facts  authorizing  a  conviction,  fails 
to  say  to  the  jury  that  they  must  believe  the  existence  of  these  facts 
beyond  a  reasonable  doubt.  They  were  told  that  if  they  had  a  rea- 
sonable doubt  as  to  the  guilt  of  the  accused  they  must  acquit ;  still 
this  did  not  dispense  with  the  necessity  on  the  part  of  the  court  in 
telling  the  jury  that  they  must  believe  from  the  evidence  beyond  a 
reasonable  doubt  that  such  facts  existed  before  they  could  finrf  the 
accused  guilty.  The  instruction  is  proper  with  this  omission  supplied. 

The  jury  may  believe  the  accused  guilty  and  still  have  some  doubt 
as  to  the  existence  of  a  material  fact  necessary  to  a  conviction.  In 
this  case  it  is  alleged  in  the  indictment  that  the  accused  as  a  witness 
in  the  civil  action  made  oath  that  the  promise  on  the  part  of  New 
York  to  pay  was  at  the  dinner  table ;  and  whether  he  made  such  a 


William  Witt  v.  May  Willison.  607 

statement  or  not  being  involved  in  much  doubt,  shows  the  importance 
in  telling  a  jury  on  a  case  like  this  not  only  what  facts  are  necessary 
to  establish  g^ilt,  but  that  they  must  believe  the  existence  of  those 
facts  beyond  a  reasonable  doubt.  Under  the  proof  in  this  case  the 
jury  should  have  been  told  that  if  the  promise  to  pay  was  made  to 
Rouse  at  the  dinner  table  or  elsewhere  they  must  acquit,  as  it  is  un- 
certain from  the  proof  that  the  statement  as  to  where  the  promise 
was  made  was  confined  to  the  conversation  at  the  dinner  table. 
.  It  was  also  improper  for  the  juror  in  the  civil  action  to  state  on 
this  trial  what  he  regarded  as  the  material  evidence  in  the  civil  case ; 
this  was  for  the  court  and  jury  trying  the  accused  to  determine,  and 
not  the  witness.  This  is  a  criminal  case.  In  the  civil  action  that  had 
been  litigated  and  the  right  of  recovery  established,  the  accused  was 
a  witness,  and  upon  his  testimony,  as  the  proof  conduces  to  show,  a 
verdict  was  rendered  for  the  plaintiff ;  and  now  in  a  criminal  action 
against  him,  *with  the  witnesses  in  the  civil  action  or  those  who  know 
the  nature  of  the  defense  appearing  as  witnesses  for  the  common- 
wealth, he  has  been  found  guilty  of  perjury.  His  character  for  truth 
is  sustained  by  his  neighbors.  The  machine  was  in  the  possession 
of  the  parties,  who  were  made  liable  in  the  civil  action,  and  had  been 
for  several  years.  The  wife  had  made  a  partial  payment  on  it  of  ten 
dollars,  and  it  is  admitted  that  the  balance  has  not  been  paid,  the  only 
question  being  that  the  husband  insists  that  the  wife  was  the  pur- 
chase!:, and  she  alone  responsible.  This  court  has  no  power  to  re- 
verse a  judgment  of  conviction  because  it  is  against  the  evidence,  and 
it  is  only  alluded  to  in  order  to  show  the  importance  of  giving  to 
the  accused  the  benefit  of  a  reasonable  doubt  as  to  the  existence  of 
every  material  fact  necessary  to  conviction. 

The  accused  is  entitled  to  a  new  trial.  Judgment  reversed  and 
cause  remanded  with  directions  to  award  a  new  trial  and  for  fur- 
ther proceedings  consistent  with  the  opinion. 

Duncan  Roberts,  for  appellant. 

R.  W,  Nelson,  T.  E.  Moss,  for  appellee. 


William  Witt  v.  May  Willison. 

Married  Women — Judgments— Jurisdiction. 

Judgments  against  married  women  and  Infants  when  they  are  be- 
fore the  court  by  virtue  of  process  in  cases  over  which  the  court  has 
jurisdiction  are  not  void,  but  are  binding,  though  erroneous,  until 
reversed;  but  such  married  women  or  Infants  may  appeal  from  such 
judgments  within  one  year  after  the  removal  of  the  disability. 


6o8  Kentucky  Opinions. 

APPEIAL  FROM  CAMPBELL  CHANCERY  COURT. 

February  16,  1876. 

Opinion  by  Judge  Pryor  : 

The  appellee,  together  with  her  husband,  was  made  a  defendant 
to  the  action  instituted  by  Vaughan  in  the  year  1846,  and  actually 
served  with  process.  The  object  of  that  action  was  to  compel  the 
husband  and  wife,  together  with  the  other  defendants,  to  convey 
to  him  the  land  in  controversy.  The  court  rendered  a  judgment  in 
that  action  granting  the  relief,  and  requiring  the  parties  to  make  the 
conveyance.  Upon  their  failure  to  convey,  the  commissioner  of  the 
court  was  ordered  to  make  to  Vaughan  a  deed  passing  to  the  latter 
all  the  title  of  the  appellee  and  the  other  defendants,  which  was  done. 
Vaughan  and  his  vendees  have  been  in  the  possession  of  this  land 
since  1843,  ^^  upwards  of  thirty  years.  This  action  was  not  instituted 
until  January,  1874,  and  whilst  the  statute  of  limitations  might  not 
have  affected  the  rights  of  the  married  woman,  still  the  judgment 
of  the  court  was  binding  until  reversed,  and  her  only  remedy  was 
by  an  appeal  to  correct  the  erroneous  judgment  or  by  bill  of  review 
instituted  within  proper  time.  The  judgment  was  not  void,  as  the 
court  had  jurisdiction  of  the  subject-matter  and  the  parties.  Dawson 
V,  Litsey,  10  Bush  408 ;  Bourne  and  Wife  v.  Simpson,  9  B.  Mon.  454 ; 
Downing^ s  Heirs  v.  Ford,  Sallee,  et  al.,  9  Dana  391. 

Judgments  against  infants  and  femes  covert  when  they  are  before 
the  court  by  virtue  of  process  in  cases  over  which  the  court  has  juris- 
diction, are  not  void,  but  are  binding  until  reversed.  An  appeal  must 
be  taken  within  three  years  next  after  the  rendition  of  the  judgment, 
unless  the  party  appealing  was  an  infant  married  woman,  or  of  un- 
sound mind  at  the  time  of  its  rendition ;  then  they  may  appeal  within 
one  year  after  the  removal  of  the  disability,  although  the  three 
years  may  have  lapsed.  Civil  Code,  Sec.  884.  By  the  Revised  Stat- 
utes a  writ  of  error  should  be  sued  out  within  three  years  after  judg- 
ments, and  if  the  party  was  laboring  under  a  disability  he  had  two 
years  after  its  removal  in  which  to  prosecute  the  writ.  It  has  been 
adjudged  that  a  writ  of  error  and  a  bill  of  review  for  errors  appar- 
ent on  the  record  are  equivalent  ren^ies,  and  that  a  bill  of  review 
is  barred  when  the  right  to  a  writ  of  error  is  lost.  Mitchell,  et  al.,  v. 
Berry,  et  al,,  i  Met.  602.  The  appellee's  disability  was  removed  in 
January,  1871,  and  this  action,  if  it  is  to  be  taken  as  a  bill  of  review, 
was  not  instituted  until  January,  1874.  Her  right  to  a  writ  of  error 
or  bill  of  review  was  then  barred. 


L.  D.  Thompson,  et  al.,  v,  H.  L.  W.  Bratton,  et  al.     609 

The  judgment  is  reversed  and  cause  remanded'  with  directions  to 
dismiss  the  petition. 

E.  W.  Hankins,  for  appellant, 

W.  S.  Albert,  J,  R.  Hallem,  for  appellee. 


L.  D.  Thompson,  et  al.,  v.  H.  L.  W.  Bratton,  et  al. 

Married  Women — Disability. 

The  disabilities  placed  upon  married  women  are  for  their  protection 
and  they  cannot  be  divested  of  their  title  to  real  estate  unless  the 
requirements  of  the  statutes  authorizing  them  to  alienate  their  lands 
are  substantially  oamplied  with. 

appeal  from  graves  circuit  court. 

February  18,  1876. 

Opinion  by  Judge  Peters  : 

The  disabilities  placed  upon  married  women  by  the  law  are  mainly 
for  their  protection  and  well  being,  and  they  cannot  be  divested  of 
their  title  to  real  estate  unless  the  requirements  of  the  statutes  where- 
by they  are  authorized  to  alienate  their  lands  are  at  least  substantially 
complied  with. 

The  deed  under  which  appellants  claim-  the  land  was  acknowl- 
edged by  Mrs.  Jones,  who  was  at  the  time  a  married  woman,  before 
W.  W.  Carr,  who  certifies  the  acknowledgment  under  his  hand  as 
acting  and  sole  presiding  judge  of  the  county  court  of  Macon  count)} 
aforesaid,  the  8th  day  of  July,  A.  D.  1857.  He  fails  to  certify  it  un- 
der his  hand  and  seal  of  office  as  required  by  Sec.  22,  Subsec.  2, 
Chap.  24,  I  Rev.  Stat.  282-3. 

This  section  just  named  provides  that  a  deed  of  a  married  woman, 
to  be  effectual,  shall  be  acknowledged  before  some  of  the  officers 
named  in  the  preceding  section  and  recorded  in  the  proper  office; 
and  subsection  2  thereof  gives  the  form  of  the  certificate  of  acknowl- 
edgement, and  requires  the  seal  of  office  to  be  affixed  to  it,  which 
we  have  already  seen  was  omitted  from  the  deed  under  which  ap- 
pellants claim.  As  appellants  claiming  under  Bratton  failed  to  show 
title  in  themselves,  the  judgment  is  aMrmed. 

L.  Anderson,  for  appellants.    R.  K.  Williams,  for  appellees. 
39 


6io  Kentucky  Opinions. 

W.  B.  Duncan,  et  al.,  v,  George  Griffy,  et  al. 

Transfer  of  Courses  to  Federal  Court — Security. 

Where  the  conditions  exist  to  authorize  the  transfer  of  a  cause 
from  the  state  to  federal  court,  the  applicant  for  transfer  must  at 
the  time  of  making  his  application,  offer  good  surety  that  he  will 
enter  said  cause  in  the  federal  court  and  file  copy  of  papers  as  re- 
quired by  the  Federal  Statutes. 

APPEAL  FROM  HICKMAN  COURT  OF  COMMON  PLEAS. 

February  18,  1876. 

Opinion  by  Judge  Lindsay  : 

This  appeal  is  from  an  order  of  the  court  of  common  pleas,  over- 
ruling the  motion  of  the  appellants  to  transfer  the  cause  to  the  cir- 
cuit court  of  the  United  States  for  the  district  of  Kentucky. 

The  motion  was  based  upon  the  provisions  of  section  639  of  the 
Revised  Statutes  of  the  United  States.  The  appellants  are  citizens 
and  residents  of  states  other  than  Kentucky ;  the  appellees  are  citi- 
zens and  residents  of  said  last  named  state.  It  is  claimed  that  the 
amount,  in  dispute,  exclusive  of  costs,  exceeds  the  sum  of  five  hun- 
dred dollars. 

In  order  to  have  a  reversal  in  such  a  case,  the  petitioner  must  at 
the  time  of  filing  his  petition  offer  in  the  state  court  good  and  suf- 
ficient surety  for  his  entering  in  the  circuit  court  of  the  United 
States  on  the  first  day  of  its  session  copies  of  the  process  against 
him,  and  of  all  pleadings,  depositions,  testimony  and  other  proceed- 
ings in  the  cause,  etc.  The  record  before  us  does  not  show  that  ap- 
pellants offered  any  such  surety,  or  in  fact  any  surety  at  all.  This 
condition  precedent  not  having  been  complied  with,  the  common 
pleas  judge  properly  overruled  the  motion  for  the  removal. 

Further  than  this  it  was  necessary  that  the  appellants  should  make 
it  appear  to  the  satisfaction  of  the  court  that  the  amotmt  in  dispute, 
exclusive  of  costs,  exceeded  the  siun  of  five  hundred  dollars.  The 
amended  petition  of  appellees  filed  at  the  time  the  motion  was  made, 
showed  that  the  amount  in  controversy  at  the  time  appellants  were 
made  parties  was  less  than  $400.  We  have  no  hill  of  exceptions 
showing  what  evidence  the  court  heard  on  this  subject  whilst  the 
motion  was  p)ending,  and  we  cannot,  therefore,  adjudge  that  it  was 
made  to  appear  that  the  amount  in  dispute  brought  the  cause  within 
the  provisions  of  the  act  of  congress. 


Margaret  Rogers  v,  Marion  Burberidge's  Committee.    6ii 

For  these  reasons,  either  of  which  is  sufficient,  the  order  overrul- 
ing the  motion  for  the  removal  is  affirmed, 

Steele  &  Steele,  for  appellants.    E,  Q.  Bullock,  for  appellees. 


Margaret  Rogers,  et  al.,  v,  Marion  Burberidge's  Committee, 

et  al. 

Revivor  of  Causes  of  Action — ^Notice  of  Revivor. 

A  cause  may  be  revived  by  rule  or  notice  to  those  representing  a 
deceased  litigant,  but  the  notice  must  be  served  at  least  ten  days  be- 
fore the  revivor  can  be  made  and  must  name  the  parties. 

APPEAL  FROM  SCOTT  CIRCUIT  COURT. 
February  19,  1876. 

Opinion  by  Judge  Pryor  : 

If  the  construction  is  given  the  act  of  the  19th  of  January,  1866, 
amending  Sec.  437  of  the  Civil  Code,  as  insisted  by  counsel  for  ap- 
pellant that  it  should  be  given  it,  the  practical  result  would  be  that 
no  revivor  could  be  had  until  the  second  term  of  the  court  succeed- 
ing the  death  of  tlie  party.  The  party  desiring  the  revivor  would 
be  required  to  obtain  the  rule  at  one  term,  and  upon  service  it  could 
be  revived  at  the  next  term.  This  mode  of  revivor  with  such  a  con- 
struction, instead  of  affording  a  more  speedy  remedy  for  reviving 
actions,  would  retard  litigation  and  cause  more  delay  than  a  revivor 
by  an  ordinary  action.  The  manifest  meaning  of  the  amendment,  al- 
though singularly  expressed,  is  that  the  revivor  may  be  had  by  rule 
or  notice,  the  object  being  that  those  representing  the  decedent  shall 
have  ten  days  notice  of  the  intention  to  revive  before  the  revivor 
can  be  made. 

The  notice,  however,  to  revive  the  judgment  rendered  in  March, 
1 87 1,  as  well  as  the  original  action,  is  clearly  defective.  It  fails  to 
show  or  state  the  name  of  the  party  against  whom  the  judgment  was 
rendered  or  the  action  pending.  The  notice  is  to  revive  a  judgment 
against  the  appellants  obtained  at  the  March  term,  1871,  for  the  sum 
of  $456.20,  without  naming  the  party  against  whom  judgment  had 
been  obtained,  and  the  same  objection  applies  to  the  notice  for  re- 
viving the  action.  The  notice  given  would  indicate  that  the  judg- 
ment had  been  rendered  in  the  name  of  Tilford's  committee  against 
William  E.  Rogers's  ExV  and  Mary  E.  Rogers,  the  parties  against 


6i2  Kentucky  Opinions. 

whom  it  was  intended  to  revive  the  judgment  and  action.  This 
court  in  the  absence  of  the  briefs  of  counsel,  or  a  knowledge  of  facts 
outside  of  the  record,  could  not  ascertain  from  the  notice  that  a 
judgment  had  been  rendered  against  Vamon  or  an  action  instituted 
against  him. 

As  to  the  revivor  of  the  action  against  the  devisee,  Mrs.  Rogers, 
it  appears  that  at  the  time  the  notice  was  signed  and  served,  no  such 
action  was  pending  in  the  Scott  circuit  court  After  the  rendition 
of  the  judgment  and  the  appeal  to  this  court,  the  Scott  circuit  court 
was  divested  of  all  power  over  the  case,  and  not  until  the  mandate 
of  this  court  had  been  filed  was  the  power  of  the  Scott  circuit  court 
over  the  case  restored.  Nor  was  any  action  pending  on  the  day  the 
motion  was  to  have  been  made,  and  if  made  on  that  day,  it  could 
not  have  been  entertained,  as  the  right  of  the  lower  court  to  take  any 
action  in  the  premises  depended  alone  upon  the  filing  of  the  mandate. 

As  the  case  must  go  back,  it  is  proper  to  notice  other  objections 
made  by  counsel.  Burberidge  was  not  a  necessary  party  to  the  mo- 
tion to  revive.  By  the  express  provisions  of  the  act  of  1866  the  re- 
vivor may  be  against  the  personal  representative  and  against  his 
heirs,  devisees  or  legatees,  jointly  or  severally,  and  besides  actions 
may  now  be  instituted,  jointly  or  severally,  against  the  parties  bound. 
The  court  below  had  the  power,  if  the  preliminary  steps  had  been 
properly  taken,  to  revive  the  action  and  also  to  render  a  judgment 
against  the  executor  and  devisee.  In  Hagan,  et  al,  v.  Patterson,  10 
Bush  441,  the  party  was  compelled  to  proceed  alcme  against  the  heir 
in  a  court  of  equity,  and  for  that  reason  it  was  held  that  it  was 
proper  for  the  chancellor  to  determine  what  property  had  descended 
to  the  heir  instead  of  leaving  it  to  the  judgment  of  his  ministerial 
agent.  In  a  case  like  this,  the  right  to  prosecute  a  joint  action 
against  the  representative  and  devisees  cannot  be  questioned,  the 
right  being  conferred  by  the  statute,  and  we  see  no  reason  why  the 
judgment  was  not  proper. 

The  mandate  directing  the  judgment  to  be  entered  against  Vamon 
was  evidently  an  oversight,  and  the  technical  objection  cannot  pre- 
vent a  judgment  against  the  representative  and  devisees.  For  the 
reason  indicated  the  judgment  as  to  Mary  E.  Rogers  and  her  hus- 
band, William  E.  Rogers,  is  reversed  and  cause  remanded  for  fur- 
ther proceedings  consistent  with  this  opinion. 

A,  Duvall,  for  appellants, 

7.  F.  Robinson,  W.  S.  Darnaby,  for  appellees. 


City  of  Covington  v.  John  N.  Furber.  613 

City  of  Covington  v.  John  N.  Furber. 

Codification  of  City  Charter — Power  of  Legislature— Compensation  of 
Commissioners. 

The  legislature  has  power  to  provide  for  the  oodifioation  of  a  city 
charter  and  may  legally  provide  for  the  compensation  of  commission- 
ers to  do  the  work,  such  compensation  to  be  paid  by  the  city. 

APPEAL  FROM  KENTON  CTIRCUIT  COURT. 

February  19,  1876. 

Opinion  by  Judge  CoFiiR: 

By  an.  act  approved  January  13,  1872,  the  General  Assembly  ap- 
pointed the  appellee  and  four  others  commissioners  to  revise  and 
codify  the  charter  of  the  city  of  Covington,  and  made  it  the  duty  of 
the  city  to  pay  to  said  commissioners  reasonable  compensation  for 
their  services  under  the  act.  The  appellee  brought  this  action  against 
the  city  to  recover  compensation  for  his  services  as  commissioner, 
and  obtained  a  judgment  therefor,  and  the  city  has  appealed. 

There  is  no  evidence  that  the  city  or  city  government  desired  the 
passage  of  the  act,  or  in  any  way  assented  to  or  accepted  the  services 
for  which  compensation  was  claimed,  or  took  any  definite  action  in 
regard  to  the  matter  until  after  the  work  had  been  completed  and 
submitted  under  the  provisions  of  the  act  supra  to  a  popular  vote, 
and  rejected  by  the  people  of  the  city. 

The  only  question  made  by  counsel  for  the  city,  which  we  deem 
it  important  to  notice  at  any  length,  is  whether  the  General  Assem- 
bly had  power  under  the  constitution  to  appoint  commissioners  to 
revise  the  charter  of  the  city  and  to  bind  the  city  to  pay  them  for 
their  services  without  the  consent  of  the  inhabitants  or  government 
of  the  city. 

Counsel  insists  that  the  work  of  the  commissioners  not  having 
been  performed  at  the  request  of  the  city,  and  the  work  having  been 
rejected  by  a  popular  vote,  the  city  derived  no  benefit  from  it  and 
cannot  therefore  be  constitutionally  required  to  pay  for  it.  It  was 
decided  by  this  court  in  Slack,  ct  al,,  v.  Maysville  &  Lexington  R, 
Co.,  13  B.  Mon.  26,  that  the  legislature  has  power  to  coerce  contri- 
bution by  a  local  community  to  objects  of  local  necessity  or  con- 
venience, and  that  this  may  be  done  without  a  petition  from  any  one, 
or  upon  the  solicitation  of  the  representative  of  the  local  commun- 
ity, or  upon  the  general  knowledge  and  judgment  of  the  legislature. 

The  legislature  had  power  to  decide  for  itself  and  without  con- 


6i4  Kentucky  Opinions. 

suiting  the  city  authorities  or  the  representatives  of  the  city  to  de- 
termine whether  the  charter  of  Covington  should  be  revised,  and 
having  decided  that  it  should  it  had  a  right  to  impose  upon  the  cit}*^ 
the  burden  of  making  the  required  revision,  on  the  same  ground  that 
it  had  power  to  charge  the  city  with  any  other  matter  which  in  the 
judgment  of  its  members  was  required  by  the  interests  or  conveni- 
ence of  the  local  public,  provided  it  is  not  apparent  that  the  object 
to  be  accomplished  is  not  one  in  the  accomplishment  of  which  they 
have  no  particular  interest.  Cheaney  v.  Hooser,  9  B.  Mon.  330. 

This  court  cannot  say  that  it  is  apparent  that  the  people  of  Cov- 
ington had  not  a  particular  interest  in  the  object  sought  to  be  accom- 
plished by  the  act  providing  for  a  revision  of  the  charter  of  that  city. 
Nor  will  the  fact  that  the  charter  prepared  by  the  commissioners  ap- 
pointed by  that  act  was  rejected  by  the  people  relieve  the  city  from 
paying  for  its  preparation.  The  revision  of  the  charter  was  a  mat- 
ter relating  to  the  interest  of  the  local  public,  and  was  designed  for 
its  benefit.  The  legislature  did  not  derive  its  power  to  pass  the  act 
from  the  city  or  its  people,  and  the  validity  of  the  act  could  not  be 
affected  by  the  popular  vote  rejecting  the  work  of  the  commissioners. 

The  evidence  as  to  the  value  of  appellee's  services  fully  warranted 
the  judgment.    Judgment  affirmed. 

John  P.  Harrison,  for  appellant.    /.  N.  Furbcr,  for  appellee. 


W.  F.  Bramel's  Adm'r,  et  al.,  v,  James  H.  Bramel,  et  al. 

Mental  Capacity — Deeds  and  Gifts. 

A  parent  has  the  absolute  right  in  disposing  of  his  property  to  give 
to  some  of  his  children  all  of  it  and  to  others  nothing,  but  when  he 
is  old  and  infirm  and  not  able  to  understand  or  comprehend  how  he 
is  disposing  of  his  property,  such  facts  may  turn  the  scale  and  estab- 
lish his  mental  incapacity  to  dispose  of  his  property. 

APPEAL  FROM  FLEMING  CIRCUIT  COURT. 

February  23,  1876. 

Opinion  by  Judge  Cofer: 

The  two  deeds  executed  by  W.  F.  Bramel  on  the  27th  of  January, 
1870,  embraced  all  his  estate  of  every  description,  except  one  note 
on  W.  T.  &  J.  A.  Bramel  for  about  $950,  one  on  Dixon  for  about 
$460,  and  one  on  Taylor  for  $325,  and  an  old  hearse,  a  few  cabinet 
maker's  tools,  and  a  small  lot  of  lumber,  tlie  last  three  items  esti- 
mated by  the  appellant  at  $50. 


W.  F.  Bramel's  Adm'r,  et  al.,  v,  James  A.  Bramel,  et  al.      615 

W.  T.  &  James  A.  now  claim  $5cx>  of  the  $950  note  belonged  to 
one  of  them,  and  that  their  father  gave  them  the  balance  of  that  note 
and  the  $460  note  on  Dixon,  and  the  note  on  Taylor  as  well  as  the 
hearse,  tools  and  lumber. 

Before  making  the  deeds  and  these  alleged  gifts,  W.  F.  Bramel 
had  property  worth  over  $4,000,  and  was  indebted  only  a  little  more 
than  $500.  He  had  five  children,  two  sons  and  three  daughters. 
For  some  years  before  his  death  the  sons  had  used  a  part  of  his  farm 
and  do  not  appear,  at  least  for  a  portion  of  the  time,  to  have  paid 
any  rent ;  they  seem  to  have  transacted  their  father's  business  mainly, 
and  to  have  collected  debts  due  to  him,  and  to  have  kept  his  accounts 
and  made  settlements  with  those  having  dealings  with  him.  On  the 
night  before  the  deeds  were  made  they  went  to  the  house  of  Dixon, 
where  their  father  had  been  living  a  great  portion  of  the  time  after 
he  ceased,  in  1867,  to  keep  house,  and  on  that  occasion  Dixon  exe- 
cuted the  note  for  $460.  W.  F.  Bramel  was  then  in  quite  feeble 
health,  but  on  the  next  day  he  was  taken  by  one  of  his  sons  to  the 
house  of  Taylor,  some  miles  distant.  Dixon  swears  that  he  went 
relunctantly  and  cried  on  leaving  his  house  and  said  he  was  unable 
to  go ;  some  of  the  members  of  the  family  of  Taylor  swear  that  when 
he  reached  their  house  he  was  greatly  prostrated  and  suffered  se- 
verely, and  they  had  serious  apprehensions  that  he  would  not  live 
until  morning. 

One  of  the  sons  accompanied  the  old  man  to  Taylor's,  and  the 
other  went  at  his  instance,  as  both  swear,  to  procure  the  draftsman 
who  wrote  the  deeds.  No  reason  is  assigned  for  removing  the 
father  from  the  home  of  his  daughter.  Nor  does  it  appear  that  she 
or  her  husband  had  any  intimation  that  conveyances  were  to  be  made 
or  that  they  had  ever  been  informed  that  he  had  any  such  purpose 
in  view  at  any  time.  Tlie  draftsman  and  the  father-in-law  of  James 
A.  Bramel  arrived  at  Taylor's  the  next  day,  and  the  deeds  were 
drawn  and  one  of  the  notes  was  assigned,  and  an  indorsement  made 
on  the  $950  note  that  $500  of  it  belonged  to  James,  and  assigning 
the  residue  to  him  and  William.  Taylor  was  the  brother-in-law  of 
W.  F.  Bramel,  and  as  other  facts  in  the  record  show  he  and  his 
family  were  on  the  most  intimate  terms  with  the  old  man ;  yet  they 
seem  not  to  have  known  anything  of  the  nature  of  the  writing  being 
drawn,  and  to  have  been  ignorant  of  their  character  for  some  time 
afterwards. 

The  old  man  remained  at  Taylor's  from  the  time  the  deeds  were 
executed  until  in  July,  when  he  was  removed  to  the  house  of  the 


6i6  Kentucky  Opinions. 

father-in-law  of  James,  where  he  died  in  the  following  September. 
At  the  time  the  deeds  were  made  Dixon  resided  in  Flemingsburg,  the 
coimty  seat  af  Fleming  county,  and  where,  we  may  safely  presume, 
a  draftsman  could  have  been  procured  and  the  deeds  acknowledged, 
but  the  old  gentleman  in  his  feeble  condition  was  removed  to  the 
county  of  Mason,  and  we  may  assume  that  a  clerk  was  sent  for  to 
take  and  certify  the  acknowledgment.  No  reason  is  assigned  why 
the  deeds  were  not  drawn  and  executed  at  Dixon's,  or  why  their  in- 
tended execution  was  made  known  to  the  other  children. 

There  is  a  large  amount  of  evidence  respecting  the  mental  and 
physical  condition  of  W.  F.  Bramel  at  that  time.  All  the  witnesses 
agree  that  he  was  much  emaciated  and  extremely  feeble,  and  Taylor 
and  his  wife  and  other  members  of  Taylor's  family,  as  well  as  many 
other  witnesses,  swear  that  his  mind  was  so  impaired  that  he  was 
incapable  of  taking  a  survey  of  his  estate  and  of  disposing  of  it  ac- 
cording to  a  fixed  plan  of  his  own ;  while  many  others  say  he  was 
competent  to  do  so,  and  some  say  his  mind  was  as  good  as  it  ever 
had  been.  From  the  statements  of  the  witnesses  as  to  his  mental 
condition  it  would  be  difficult  to  decide  whether  he  had  such  capacity 
as  to  enable  him  to  make  a  valid  disposition  of  his  estate.  But  when 
the  evidence  bearing  directly  upon  that  point  is  considered  in  con- 
nection with  other  evidence  in  the  record,  we  have  felt  no  hesitation 
in  coming  to  a  conclusion. 

His  removal  from  his  accustomed  home  in  the  house  of  his  son- 
in-law  and  daughter  in  Flemingsburg,  where  a  draftsman  could 
doubtless  have  been  had,  and  where  the  deeds  could  have  been  ac- 
knowledged, to  the  county  where  a  draftsman  and  clerk  had  to  be 
sent  for  at  some  distance,  the  concealment  from  his  daughter  of 
the  fact  that  the  conveyances  were  to  be  made,  and  the  condition  of 
the  grantor  at  the  time,  are  alone  sufficient  to  arouse  grave  suspi- 
cions that  some  unfair  advantage  was  intended. 

Add  to  these  the  further  facts  that  W.  F.  Bramel  is  shown  by  all 
the  evidence  to  have  had  the  warmest  affection  for  all  his  children ; 
that  his  daughters  are  proven  to  have  been  worthy  of  his  love  and 
in  need  of  his  bounty ;  and  that  if  he  understood  what  he  was  doing 
and  did  it  of  his  own  volition,  he  was  putting  it  out  of  his  power  to 
give  them  anything  whatever ;  and  it  is  difficult  to  believe  that  these 
conveyances  were  understandingly  and  willingly  made. 

This  conclusion  is  strengthened  by  other  facts  in  the  record.  The 
deed  to  the  land  recites  that  it  is  made  in  consideration  that  the 
grantees  would  pay  a  debt  of  $535  secured  by  a  mortgage  on  the 


W.  F.  Bramel's  Adm'r,  et  al.,  v,  James  A.  Bramel,  et  al.      617 

land,  and  the  further  consideration  that  they  would  support  him  dur- 
ing life  and  pay  his  funeral  expenses,  and  of  indebtedness  to  them 
for  services  rendered  in  the  accumulation  of  the  land.  The  evidence 
fails  to  show  any  services  rendered  by  the  grantees  after  they  at- 
tained their  majority,  in  paying  for  the  land,  or  that  they  performed 
any  unusual  amount  of  service  for  him  at  any  time,  but  rather  tends 
to  show  that  they  were  his  debtor  after  they  became  of  age. 

The  deed  to  the  personal  property  recites  that  it  is  made  in  order 
to  make  the  sons  equal  to  the  daughters  in  the  distribution  of  his 
estate.  The  evidence  shows  beyond  dispute  that  no  advancements, 
beyond  a  very  small  amount,  had  been  made  to  either  of  the  daugh- 
ters. Instead  of  making  all  equal,  the  two  sons  get  near  $2,000 
each,  while  the  three  daughters  are  not  shown  by  the  evidence  in 
this  record  to  have  received  all  together  one-fourth  of  that  sum.  It 
is  true  that  James  and  William  swear  to  large  advancements  to  all 
the  girls ;  but  when  required  to  state  in  detail  in  what  those  advance- 
ments consisted  they  wholly  fail;  and  it  is  entirely  apparent  from 
their  own  testimony  that  no  advancements,  beyond  a  few  dollars, 
were  ever  made  to  any  one  of  them. 

The  evidence  also  shows  that  after  the  deeds  were  made  and  the 
notes  assigned,  the  old  gentleman  repeatedly  said  that  he  intended 
to  secure,  or  had  secured  to  Mrs.  Strode  $1,000,  and  intended  if  he 
got  well  enough  to  get  out,  to  buy  a  small  parcel  of  land  for  Mrs. 
Glasscock,  and  have  it  secured  to  her.  Yet  at  the  time  he  made 
those  declarations,  if  he  knew  what  he  had  embraced  in  the  deeds 
and  assignments,  and  what  estate  he  had  at  the  date  of  their  execu- 
tion, he  must  have  known  he  had  not  the  means  with  which  to  do  so. 

He  had  no  motive  to  put  false  recitals  in  the  deeds,  and  if  he  did 
not  know  they  were  false  in  some  respects,  especially  that  in  the 
deed  of  the  personal  property,  he  lacked  capacity  to  make  a  valid 
disposition  of  his  estate.  If  he  knew  they  were  false  and  yet  exe- 
cuted the  deeds  with  those  statements  in  them,  that  fact  would,  in 
view  of  the  state  of  his  health,  and  the  circumstances  under  which 
he  acted,  be  convincing  evidence  that  the  deeds  were  not  his  volun- 
tary act  but  influenced  by  a  power  he  was  unable  to  withstand. 

We  recognize  in  its  fullest  extent  the  absolute  right  of  a  parent  of 
disposing  mind  to  dispose  of  his  property  among  his  children  in  such 
way  as  his  judgment  or  even  his  whims  or  caprices  may  dictate,  but 
when  an  old^  frail  and  sick  man  makes  a  grossly  unequal  distribu- 
tion— one  which  is  in  conflict  with  the  dictates  of  natural  affection, 
with  nothing  in  the  relation  between  him  and  his  children  or  in  their 


6i8  Kentucky  Opinions. 

respective  circumstances  and  conditions  in  life  which  seem  to  justify 
it,  if  the  burden  of  showing  affirmatively  that  he  was  capable  and 
fully  understood  what  he  was  doing  is  not  cast  upon  those  who  as- 
sert such  disposition,  it  is  at  least  incumbent  upon  them  to  explain 
fully  and  clearly  every  circumstance  tending  to  cast  suspicions 
upon  the  fairness  and  candor  of  their  own  conduct.  When  under 
such  circumstances  as  exist  in  this  case,  the  conveyances  relied  upon 
contain  upon  their  faces  false  recitals,  tlie  belief  of  which  would  in- 
cline the  mind  to  execute  such  conveyances,  the  evidence  that  the 
disposition  was  fully  understood  and  intended  should  be  clear  and 
convincing.    Harrell,  et  al.,  v.  Harrell,  et  al.,  i  Duvall  203. 

The  conveyances  and  assignments  under  which  the  appellees 
claim  should  be  set  aside,  and  an  account  should  be  taken  of  ad- 
vancements ;  the  appellees  should  be  credited  with  any  sums  paid  to 
or  for  W.  F.  Bramel,  and  for  any  balance  due  them  they  are  entitled 
to  a  lien  on  the  land.  After  ascertaining  the  amount  of  the  estate 
and  advancements,  the  five  children  of  W.  F.  Bramel  should  be  made 
equal,  by  the  distribution  and  division. 

Judgment  reversed,  and  cause  remanded  for  further  proceedings 
in  conformity  with  this  opinion. 

E,  C.  Phister,  for  appellants.    Card  &  Alexander,  for  appellees. 


E.  E.  Spencer  v.  Cakrie  Spencer,  et  al. 

Will — Construction. 

Where  a  will  bequeaths  a  life  estate  In  real  estate  to  three  persons 
and  after  probate  two  of  such  devisees  die,  the  third  is  entitled  to  a 
life  estate  in  all  of  the  land  and  the  owner  of  the  fee  cannot  take  the 
possession  until  after  the  death  of  the  life  tenant. 

APPEAL  FROM  LOGAN  CIRCUIT  COURT. 

February  25,  1876. 

Opinion  by  Judge  Peters  : 

This  controversy  arises  out  of  the  second  clause  of  the  will  of  J. 
W.  Spencer,  which  is  in  the  following  language : 

"That  the  remainder  of  the  land  reverting  to  me  at  my  mother's 
death,  including  the  dwelling  house  and  all  other  buildings  upon 
the  land,  I  will  to  my  brother  and  sisters,  E.  E.  Spencer,  Mary 
Jane  Tisdell,  and  Martha  Sinmions,  to  be  held  and  used  by  them 


William  Stone  Albert  z\  A.  Harris.  619 

during"  their  lives,  and  at  their  death  to  revert  to  my  nephew,  Wes- 
ley E.  Simmons ;  but  in  case  of  his  death  before  reaching  his  majority 
it  shall  revert  to  my  father's  family  or  heirs." 

The  testator  had  in  the  first  clause  of  his  will  devised  to  his  wife 
one-third  of  said  tract  of  land  absolutely,  and  this  suit  was  originally 
brought  by  his  widow  against  the  other  devisees  for  partition. 

Before  the  institution  of  the  suit  Mrs.  Martha  Simmons  had  died, 
and  during  its  pendency  Mrs.  Mary  Jane  Tisdell  died.  One-third 
of  the  land  was  partitioned,  and  set  apart  to  Mrs.  Carrie  Spencer,  the 
widow  of  testator,  which  is  satisfactory  to  all  parties.  But  E.  E. 
Spencer  being  the  survivor  of  the  three  life  tenants  under  the  will, 
claims  the  whole  of  the  remaining  thirds  of  the  tract  during  his  life, 
and  W.  E.  Simmons,  the  devisee  in  remainder,  claims  that  upon  the 
death  of  Mrs.  Tisdell  and  Mrs.  Simmons  he  had  a  right  to  the  im- 
mediate possession  of  the  two-thirds  to  which  they  were  entitled 
under  the  will.  The  court  below  having  adjudged  to  him  said  two 
interests,  E.  E.  Spencer  prosecutes  this  appeal. 

We  cannot  concur  in  the  conclusion  of  the  circuit  judge.  Ac- 
cording to  the  language  of  the  will  the  land  given  to  his  brother  and 
sisters  was  to  be  held  and  used  by  them  during  their  lives,  and  was 
to  revert  to  his  nephew  at  their  death,  or  at  the  death  of  his  brothers 
and  sisters;  for  the  pronoun  "their"  evidently  refers  to  them,  the 
brother  and  sisters,  and  includes  all  of  them.  Moreover,  the  testa- 
tor gives  the  land  to  them  "to  be  held  and  used  by  them  during  their 
Hves  ;*'  he  makes  no  provision  for  a  surrender  of  part  of  the  land  on 
the  death  of  one  or  two  of  the  life  tenants.  The  devise  is  to  them 
as  a  class  of  the  whole  interest,  and  as  long  as  any  one  of  the  class 
survives  that  survivor  must  hold  and  enjoy  the  estate. 

Wherefore  so  much  of  the  judgment  as  deprives  E.  E.  Spencer 
of  any  part  of  the  remainder  of  the  land  after  setting  apart  to  Mrs. 
Carrie  Spencer  her  portion  thereof  during  his  life  is  reversed,  and 
the  cause  remanded  for  further  proceedings  consistent  herewith, 

W.  E.  Simmons  must  pay  the  costs  of  this  appeal. 

James  H,  Boivden,  for  appellant.    A,  G.  Rhea,  for  appellees. 


William  Stone  Albert  z\  A.  Harris. 

Judgment — Process. 

A  Judgment  taken  without  notice  served  or  an  appearance  by 
defendant  is  void. 


620  Kentucky  Opinions. 

Taxation. 

Under  a  city  chAiter  iHroviding  tliat  the  city  has  a  lien  upon  all 
property  for  general  city  taj^es  to  be  enforced  by  judgment  of  the 
mayor's  court  upon  conditions  named  a  sale  of  such  property  pursu- 
ant to  such  a  judgment  is  ineftectual  to  convey  title,  except  in  cases 
where  every  prerequisite  to  such  a  judgment  appears  in  the  record. 

APPEAL  FROM  CAMPBELL  CHANCERY  COURT. 

February  29,  1876. 

Opinion  by  Judge  Cofer  : 

Judgment  without  notice  of  any  kind,  and  without  opportunity  to 
defend  is  void  in  American  jurisprudence,  and  especially  so  when  a 
person  whose  property  is  thus  proceeded  against  is  attempted  to  be 
barred,  by  a  judgment  thus  obtained,  of  any  defense  he  may  have 
unless  he  presents  it  before  a  sale  is  made  in  execution  of  the  judg- 
ment. 

When  such  extraordinary  and  arbitrar}^  proceedings  are  relied 
upon  to  divest  a  citizen  of  his  property,  it  should  appear  that  every 
requisite  of  the  statute  had  been  strictly  complied  with. 

Section  12  of  the  act  of  February  18,  i860,  to  amend  the  charter 
of  Newport,  provides  that  general  city  taxes  shall  be  levied  after  a 
return  of  the  assessment;  and  section  13  provides  that  the  city  shall 
have  a  lien  upon  all  property  for  general  city  taxes  levied  thereon, 
which  may  be  enforced  by  judgment  of  the  mayor's  court  without 
process,  when  it  shall  appear  by  the  tax  bill  filed  in  said  court,  and 
such  other  evidence  as  the  records  of  the  city  may  furnish,  that  the 
taxes  have  been  regularly  levied,  that  the  tax-payers  are  delinquent, 
that  the  tax  bills  have  been  regularly  returned  by  the  collector  from 
the  first  to  fifteenth  of  October  in  each  year,  endorsed,  and  that  he 
has  found  no  personal  property  to  distrain  for  said  taxes. 

The  jurisdiction  of  the  mayor's  court  to  adjudge  sales  for  the  pay- 
ment of  taxes  is  specially  limited  and  extraordinary,  and  every  pre- 
requisite to  such  a  judgment  should  appear  in  the  record  thereof. 
Unless  the  enumerated  pre-requisites  appear,  it  does  not  appear  that 
the  court  had  jurisdiction,  and  its  judgment  is  void. 

The  record  of  the  judgment  recites  that  "The  plaintiff  (the  city 
of  Newport),  by  her  attorney,  having  filed  an  office  copy  of  her  tax 
bill  against  the  defendant  for  the  said  year  187 1,  and  moved  for 
judgment,  and  it  appearing  that  said  tax  has  been  regularly  levied 
against  the  said  lot  No.  38,  T.  N.  B.  V.,  to  the  city  of  Newport  for 
said  year  1871,  that  the  payor  thereof  is  delinquent,  and  the  same 


William  Stone  Albert  v.  A.  Harris.  621 

remains  unpaid ;  that  ^aid  tax  bill  has  been  regularly  returned  by  the 
collector  from  the  ist  to  the  15th  of  October,  1871,  and  that  as  the 
collector  has  found  no  personal  property  to  distrain  for  said  tax,  pen- 
alty and  the  costs,  it  is  now  adjudged,"  etc.  No  tax  bill  is  copied 
into  the  record,  although  the  mayor  certifies  that  the  whole  pro- 
ceedings, as  it  appears  upon  his  record,  is  contained  in  his  transcript, 
which  is  made  part  of  the  petition  in  this  case,  and  a  copy  of  which 
is  before  us. 

The  judgment  recites  that  a  tax  bill  was  filed  in  the  mayor's  court, 
and  that  it  appeared  that  the  tax  had  been  regularly  levied,  but  it 
does  now  say  how  it  appeared  that  the  levy  was  regular.  The  char- 
ter says  it  must  "appear  by  the  tax  bill  filed  in  said  court,  and  such 
other  evidence  as  the  records  of  the  city  may  furnish,  that  the  taxes 
have  been  regularly  levied."  A  general  tax  could  only  be  regularly 
levied  after  the  property  was  assessed,  (Sec.  12)  and  the  levy  was  re- 
quired to  be  made  by  ordinance.  No  tax  could,  therefore,  be  legally 
levied  until  an  assessment  was  made,  and  an  ordinance  passed  de- 
claring the  levy  and  the  amount  of  tax  on  each  one  hundred  dollars' 
worth  of  property  (Sec.  5,  Act  February  6,  1858).  It  was,  there- 
fore, necessary  that  it  should  appear  from  the  assessment,  the  ordi- 
nance making  the  levy  and  the  tax  bill,  that  the  levy  had  been  regu- 
larly made  before  the  mayor's  court  had  jurisdiction  to  adjudge  a 
sale. 

Nor  do  we  find  in  the  record  either  a  statement  in  the  judgment 
or  other  evidence  that  any  penalty  had  been  or  could  have  been 
legally  assessed.  The  charter  gave  the  council  power  to  add  penal- 
ties not  exceeding  5  per  cent,  for  a  failure  to  pay  on  or  before  the 
first  of  August  of  each  year,  and  the  mayor's  judgment  imposes  a 
penalty  of  20  per  cent.,  but  it  does  not  appear  that  such  penalty  had 
ever  been  authorized  or  directed  by  the  city  council. 

The  tax  and  penalty  amounted  to  $15.30,  but  the  collector  sold  for 
$21.05.  T^^s  sum  was  made  up,  as  appears,  of  the  tax  and  penalty, 
$15.30,  mayor's  cost,  $1.25,  allowance  to  commissioner  for  selling, 
$1.50,  attorney,  $2.50,  clerk,  50  cents.  It  does  not  appear  that  either 
the  general  assembly  or  the  city  council  had  authorized  these  items 
of  cost  to  be  taxed,  and  the  sale  was,  therefore,  for  $8.55  more  than 
seems  to  have  been  warranted  by  law. 

The  charter  required  the  commissioner  making  the  sale,  to  make 
report  thereof  to  the  mayor's  court,  but  if  any  such  report  was  made 
it  does  not  appear  in  the  record,  and  the  mayor  having  certified  that 
the  transcript  furnished  by  him  is  full  and  complete,  we  can  come  to 


622  Kentucky  Opinions. 

no  other  conclusion  than  that  the  report  which  the  record  recites  as 
made  was  merely  verbal.  Such  a  report  was  a  nullity,  and  the  deed 
made  by  the  president  of  the  council  passed  no  title.  We  are,  there- 
fore, of  the  opinion  that  the  appellant  failed  to  exhibit  title  to  the 
lot  and  that  he  has  not  shown  a  right  to  the  relief  sought. 

But  the  court  erred  in  rendering  judgment  to  sell  the  lot.  The 
appellant  did  not  ask  such  a  judgment.  He  was  in  possession,  and 
the  court  should  have  dismissed  his  petition  instead  of  adjudging  a 
sale,  the  effect  of  which  may  be  to  dispossess  him.  This  he  did  not 
ask  and  may  not  desire. 

The  judgment  is,  therefore,  reversed,  and  the  cause  is  remanded 
with  directions  to  dismiss  the  petition.  No  judgment  will  be  ren- 
dered for  cost  in  this  court. 

W.  S,  Albert,  for  appellant.    E,  IV.  HazMns,  for  appellee. 


Peter  Murphy  v.  Thomas  McRoberts. 

Executor — Ejectment — Heirs. 

A  personal  representative  empowered  to  sell  land  by  the  terms  of  a 
will  has  no  right  to  maintain  an  action  of  ejectment  against  those  in 
possession.  The  title  to  such  land  is  in  the  heirs  and  they  must  be 
made  parties  to  such  a  suit. 

APPEAL  FROM  PENDLETON  CIRCUIT  COURT. 

February  29,  1876. 

Opinion  by  Judge  Pryor: 

We  have  been  referred  to  no  authority  by  counsel  for  the  appellees 
giving  to  the  personal  representative  empowered  to  sell  land  by  the 
will  of  the  devisor  the  right  to  maintain  an  action  of  ejectment 
against  those  in  possession.  In  this  case  there  is  a  mere  naked 
power  to  sell,  and  the  legal  title  to  the  land  is  in  the  heirs  of  the  de- 
visor. A  ix)wer  of  attorney  to  sell  and  convey  passes  to  the  attorney 
no  such  title  as  will  enable  him  to  maintain  ejectment.  Nor  does  it 
appear  that  the  petition  of  the  heir  in  this  case  to  be  made  a  party 
was  ever  acted  on.  There  was  no  answer  filed  to  that  petition,  nor 
was  the  heir  made  a  party  plaintiflF  by  an  order  of  court. 

The  administrator  in  this  case  had  settled  his  accounts  many  years 
prior  to  the  institution  of  the  action  and  the  heirs  had  released  him, 
according  to  his  own  statement,  from  complying  with  that  provision 


Mariah  Avery  v,  J.  M.  Elder,  et  al.  623 

of  the  will  directing  a  sale  of  the  land.  He  may  have  acted  as  the 
agent  of  the  heirs,  and  with  the  authority  to  sell  may  have  assumed 
the  power  to  control  the  realty ;  but  he  was  vested  with  no  such  title 
as  enabled  him  to  maintain  ejectment.  We  are  rather  inclined  to 
the  opinion,  however,  that  the  parties  in  the  court  below  regarded 
the  filing  of  the  petition  of  Henry  Guess  as  making  him  a  party  to 
the  record.  There  seems  to  have  been  no  objection  to  its  filing,  and 
as  the  appellants,  by  their  answer,  asked  that  the  heirs  should  be 
brought  before  the  court,  the  case  should  be  heard  on  his  petition. 
Upon  the  return  of  the  case  he  should,  by  an  order  of  court,  be  made 
a  party  plaintiflF,  with  leave  to  amend  so  as  to  unite  the  other  heirs 
with  him  and  to  give  a  more  definite  description  of  the  land. 

We  see  no  interest  that  the  administrator,  with  will  annexed,  had 
in  the  controversy  unless  the  heirs  or  those  interested  should  require 
that  he  should  execute  the  trust,  and  it  is  only  from  the  fact  that  the 
petition  of  Guess  was  filed  without  objection,  and  the  inference  from 
the  facts  that  he  was  regarded  as  a  party  to  the  record  by  the  appel- 
lants, that  he  be  allowed  to  amend  his  petition.  Although  he  may 
have  been  regarded  as  a  party,  we  are  not  disposed  to  uphold  the 
verdict  upon  the  pleadings  as  they  now  appear.  The  case  must  go 
back  for  further  preparation. 

Tlie  judgment  is  reversed  and  cause  remanded  with  directions  to 
award  appellants  a  new  trial,  and  for  further  proceedings  consist- 
ent with  the  opinion. 

C.  H,  Lee,  for  appellant.     \l\  /.  Perrin,  for  appellee. 


Mariaii  Avery  v.  J.  M.  Elder,  et  al. 

Decedent's  Estates — Widow — Suit  of  Creditor. 

Where  there  is  no  administration  of  a  decedent's  estate  and  a  suit 
is  brought  against  the  widow  who  has  taken  the  property  no  recovery 
can  be  had  where  no  averment  is  made  that  the  personal  property 
of  decedent  received  by  the  widow  was  of  greater  value  than  she  had 
a  right  by  law  to  have  set  apart  to  her,  before  the  payment  of  debts. 

APPEAL  PROM  CLINTON  CIRCUIT  COURT. 

March  1,  1876. 

Opinion  by  Judge  Peters: 

Although  it  is  alleged  that  W.  C.  Avery  died  intestate,  it  is  not 
alleged  that  no  administration  had  been  granted  on  his  estate,  nor 


624  Kentucky  Opinions. 

is  appellant  sued  as  executrix  de  son  tort,  but  she  is  sued  as  the 
widow,  and  it  is  alleged  that  after  the  death  of  her  husband,  she  took 
into  her  possession  all  of  his  personal  estate,  worth  over  the  amount 
of  the  judgments  of  appellees.  It  is  also  alleged  that  decedent  was 
a  soldier  of  the  U.  S.  government  in  the  late  war  and  that  appellant 
received  the  amount  due  him  for  a  horse,  for  his  back  pay  and  the 
bounty  due  him  for  his  services  in  the  army  to  a  greater  amount  than 
would  be  sufficient  to  satisfy  said  judgments.  But  it  is  not  alleged 
in  the  petition  that  the  personal  estate  of  decedent,  which  was  re- 
ceived by  the  widow,  was  of  greater  value  than  she  had  a  right  by 
law  to  have  set  apart  to  her  before  the  payment  of  debts.  As  to  the 
back  pay  and  bounty  received  by  her  for  the  services  of  her  husband 
in  the  late  war,  this  court  has  repeatedly  held  that  in  such  cases 
where  the  government  has  paid  the  money  to  the  widow,  or  to  the 
children  of  a  soldier,  it  becomes  the  money  of  the  widow,  or  chil- 
dren, and  is  not  subject  to  the  debts  of  the  deceased  soldier. 

The  allegations  of  the  petition,  therefore,  are  not  sufficient  to  au- 
thorize a  recovery  against  appellant  in  any  aspect  of  the  case  pre- 
sented. Wherefore  the  judgment  is  reversed  and  the  cause  re- 
manded with  directions  to  dismiss  the  petition. 

/.  T.  Montgomery,  for  appellant, 
J,  A,  Brents,  for  appellees. 


T.  L.  Anderson  v.  A.  A.  Grady^  et  al. 

Appeals— Jurisdiction. 

The  court  of  appeals  has  no  Jurisdiction  of  an  appeal  taken  from 
an  order  of  the  court  which  was  not  a  final  order. 

Final  Judgment. 

A  final  judgment  is  one  which  finally  determines  the  rights  of  the 
parties. 

APPEAL  FROM  BARREN  CIRCUIT  COURT. 

March  2,  1&76. 

Opinion  by  Judge  Cofer: 

The  orders  appealed  from  in  this  case  are  not  final  orders  within 
the  meaning  of  section  15  of  the  Civil  Code;  and  this  court,  there- 
fore, has  no  jurisdiction  of  this  appeal.  If  the  appellant  desired  to 
rest  his  case  upon  his  demurrer  he  should  have  so  intimated  to  the 


Mary  F.  Strowd  v.  Stanley  &  Son,  et  al.  625 

circuit  court,  and  allowed  such  judgment  to  be  rendered  as  that  court 
deemed  right,  and  then  have  prosecuted  his  af^eal  from  the  judg- 
ment. 

Until  the  action  is  disposed  of  by  a  judgment  finally  determining 
the  rights  of  the  parties  so  far  as  the  circuit  court  is  concerned,  no 
appeal  will  lie. 

Appeal  dismissed. 

J,  //,  Lewis,  for  appellant. 


Mary  F.  Strowd  v.  Stanley  &  Son,  et  al. 

Husband  and  Wife— Husband's  Rights  in  Wife's  Land — Married  Women 
— Husband's  Creditors. 

Under  the  statutes  the  husband  has  the  power  to  rent  the  wife's 
land  for  not  more  than  three  years  at  a  time  and  receive  the  rent. 
He  may  mortgage  the  crops  on  such  land  resulting  from  his  own  labor. 

Married  Women. 

If  a  married  woman  desires  to  secure  the  fruits  of  her  own.  labor 
or  accumulations,  she  must  in  conjunction  with  her  husband  pursue 
the  mode  pointed  out  by  the  statute  authorizing  her  to  trade  as 
feme  sole. 

Husband's  Creditors. 

Secret  transactions  between  husband  and  wife,  when  the  wife  is 
not  authorized  to  trade  as  a  feme  sole,  are  not  to  be  regarded  with 
favor  nor  allowed  to  defeat  the  husband's  creditors. 

APPEAL  FROM  WARREN  CIRCUIT  COURT. 

March  2,  1876. 

Opinion  by  Judge  Pryor: 

The  conveyance  to  the  wife  of  one  of  the  tracts  of  land  gives  to 
her  a  general  estate,  and  as  to  the  other  title  it  is  in  the  husband. 
The  husband  has  the  power  by  an  express  provision  of  the  statute 
to  rent  the  wife's  land  for  not  more  than  three  years  at  a  time  and 
receive  the  rent,  and  if  so,  we  cannot  well  see  why  he  may  not  mort- 
gage the  crop  upon  it  resulting  from  the  proceeds  of  his  own  labor 
or  that  of  his  wife.  The  husband  is  entitled  to  the  wife's  earnings, 
and  if  she  desires  to  secure  the  fruits  of  her  own  labor  or  what  she 
may  accumulate  in  the  way  of  personalty  she  must  in  conjunction 
with  her  husband  pursue  the  mode  pointed  out  by  the  statute  author- 

40 


626  Kentucky  Opinions. 

izing  her  to  trade  as  feme  sole.  Uhrig,  et  aL,  v.  Horstman  &  Sons, 
8  Bush  172. 

The  husband  states  that  he  purchased  the  land  upon  which  the 
tobacco  was  raised  and  paid  for  it  in  corn,  and  a  mare  and  colt,  ex- 
cept $130,  upon  the  promise  by  the  wife  that  she  would  refund  him 
the  money  and  take  the  land,  which  she  did ;  that  he  expected  her  to 
pay  for  it  when  he  made  the  purchase  with  her  money.  Such  trans- 
actions between  husband  and  wife,  with  no  evidence  of  record  to  no- 
tify purchasers  and  creditors  of  the  claim  of  the  wife,  are  not  to  be 
regarded  with  much  favor,  and  particularly  when  the  creditor  has 
sold  to  the  husband  and  wife  goods  that  were  no  doubt  necessary  for 
the  comfort  of  the  family.  While  the  general  estate  of  the  wife  will 
not  be  sold  except  as  authorized  by  statute  for  debts  created  by  her- 
self and  husband,  still  the  products  of  the  general  estate  will  be, 
for  the  reason  that  the  husband  is  entitled  to  the  rent,  and  for  the 
additional  reason  in  this  case  that  the  goods  furnished  by  the  appel- 
lees contributed  to  the  support  of  the  family. 

There  is  no  record  evidence  of  any  authority  to  invest  the  wife's 
money  in  this  land  or  to  create  a  separate  estate  in  the  wife,  and  from 
the  proof  in  the  case  we  are  not  disposed  to  give  it  the  character  of 
separate  estate  in  order  to  defeat  the  claims  of  creditors.  The  horses 
with  which  the  crop  was  cultivated  cannot  be  adjudged  to  belong  to 
the  husband,  although  they  may  have  been  claimed  by  the  wife,  in  a 
contract  between  the  wife  and  the  creditors  of  the  husband.  It  may 
be  that  the  wife  is  entitled  to  the  land  as  against  the  husband,  and  if 
so  she  should  take  such  steps  as  will  secure  it  against  the  claims  of 
future  creditors. 

The  judgment  is  not  prejudicial  to  the  appellant,  and  must  be 
(Mrmed. 

H,  /.  Beauchatnp,  for  appellant 

/.  //.  &  /.  M.  IVilkins,  for  appellees. 


Andrew  Kinser^  et  al.  v,  A.  J.  Robertson,  et  al. 

Mortgage — Husband  and  Wife. 

A  voluntary  conveyance  to  the  wife  will  not  defeat  a  creditor  who 
took  a  mortgage  from  the  husband  after  such  conveyance  to  secure  a 
debt  created  before  the  conveyance  was  made. 


A.  H.  Henninger  V,  Charlotte  Henninger.  627 

APPEAL.  FROM  MBTCALJ'B  CIRCUIT  COURT. 

March  3,  1876. 

Opinion  by  Judge  Cofer: 

The  mortgage  to  the  appellant  is  valid  as  to  A.  J.  Robertson,  and 
the  conveyance  to  his  wife  being  voluntary  and  subsequent  in  date 
to  the  creation  of  the  indebtedness  to  Mrs.  Kinser,  is  void  as  to  her, 
and  the  debt  having  been  created  before  the  passage  of  the  homestead 
law  we  perceive  no  valid  reason  why  the  mortgage  may  not  be  en- 
forced. 

The  liability  was  created  in  1863  or  1864.  The  execution  of  the 
note  and  mortgage  did  not  extinguish  the  old  liability,  but  merely 
furnish  evidence  in  a  different  form  of  the  existence  of  the  debt. 
Lowry  v,  Fisher,  et  aL,  2  Bush  70;  Kibbey  v.  Jones,  7  Bush  243. 

The  court,  therefore,  erred  in  dismissing  the  petition  as  to  Mrs. 
Robertson,  and  the  judgment  is  reversed  and  the  cause  is  remanded 
with  directions  to  render  judgment  directing  a  sale  of  so  much  of 
the  land  embraced  in  the  deed  from  W.  W.  Robertson  to  Mrs.  M.  F. 
Robertson  as  will  satisfy  the  debt  sued  for  and  the  interest  thereon 
and  the  cost  of  the  suit. 

Garnett  &  Dehoney,  for  appellants. 


A.  H.  Henninger  v.  Charlotte  Henninger. 

Divorce — ^Wife  Insane. 

Where  the  husband  in  his  petition  for  divorce  avers  that  his  wife 
had  been  judicially  found  to  be  of  unsound  mind,  he  is  not  a  compe^ 
tent  witness  ac;ainst  her. 

APPESAL  from  ROBERTSON  CIRCUIT  COURT. 

March  7,  1876. 

Opinion  by  Judge  Cofer: 

The  appellant  was  married  to  the  aj^ellee  in  Claremount,  Ohio,  in 
1838.  He  alleged  that  they  lived  together  as  husband  and  wife  until 
in  1862,  when  she  left  him,  and  that  they  have  lived  separate  and 
apart  without  cohabitation  ever  since;  that  in  1866  he  removed  to 
what  is  now<  Robertson  county,  in  this  state,  and  had  resided  there 
continuQUsly  up  to  the  commencement  of  this  suit,  July  9,  1873 ;  and 
upon  the  ground  that  they  had  lived  separate  and  apart  without  co- 


628  Kentucky  Opinions. 

liabitation  for  five  years,  he  sought  a  divorce  from  the  bonds  of 
matrimony. 

There  is  no  competent  evidence  of  the  time  of  their  separation. 
The  appellant  gave  his  own  deposition,  in  which  he  says  they  sep- 
arated in  1862,  and  have  lived  separate  and  apart  ever  since.  This 
deposition  was  not  excepted  to,  but  should  be  rejected  by  the  court 
of  its  own  motion.  Neither  husband  or  wife  is  a  competent  witness 
against  the  other.  The  appellant,  in  an  amended  petition,  alleged 
that  the  appellee  had  been  judicially  found  to  be  of  unsound  mind, 
and  this  furnishes  an  additional  reason  why  he  was  incompetent  as 
a  witness. 

Aside  from  the  appellant's  deposition,  there  is  no  evidence  when 
they  ceased  to  live  together,  or  that  when  he  came  to  Kentucky  they 
separated  with  an  intention  not  to  live  together  again.  For  aught 
that  appears,  except  from  some  incompetent  declarations  of  the  ap- 
pellant which  he  introduced  as  evidence,  there  was  no  such  separa- 
tion as  is  contemplated  by  the  statute  until  she  came  to  Kentudcy  in 
1870;  and  even  then,  the  evidence  strongly  conduces  to  show  that 
she  was  insane.  Counting  from  the  time  of  her  arrival  in  this  state 
to  the  time  of  the  commencement  of  this  suit,  the  parties  have 
not  been  shown  to  have  lived  separate  and  apart  as  much  as  five 
years.  During  the  greater  part,  if  not  all  of  that  time,  the  appellee 
was  insane. 

We  concur  with  the  court  below  in  the  conclusion  that  the  appel- 
lant is  not  entitled  to  a  divorce. 

Judgment  aMrmed. 

J.  A,  &  C.  M,  Buckler,  for  appellant. 


Metcalfe  County  Court  v.  J.  G.  Scott,  et  al. 

Corporation — Bonds  for  Costs. 

A  county  is  not  a  corporation  within  the  meaning  of  the  statute 
requiring  all  corporations  to  give  bonds  for  costs  when  instituting 
actions  in  court. 

APPEAL  PROM  METCALFE  CIRCUIT  COURT. 

March  8,  1876. 

Opinion  by  Judge  Cofer: 

A  county  is  not  a  corporation  within  the  meaning  of  Sec.  3,  Chap. 
26,  Rev.  Stat.,  requiring  that  when  any  corporation  shall  institute 


John  Tomerlin  v.  G.  Terry,  et  al.  629 

an  action  in  any  court,  it  shall,  before  the  conunencement  thereof, 
give  bond  with  surety  to  pay  all  costs  that  accrue  either  to  the  oppo- 
site party  or  to  the  officers  of  the  court. 

Counties  are  corporations  only  in  a  restricted  sense.  They  are 
public  corporations  created  by  the  state  as  agencies  in  the  adminis- 
tration of  civil  government,  and  are,  therefore,  parts  of  the  state 
government ;  and  it  cannot  be  supposed  that  the  legislature  intended 
to  impose  upon  them  the  burden  of  giving  bond  with  surety  before 
they  would  be  permitted  to  institute  actions  necessary  to  the  proper 
exercise  of  their  functions. 

The  statute  was  intended  to  protect  the  defendant  in  suits  insti- 
tuted by  private  corporations,  and  to  secure  to  the  officers  of  the 
state  payment  for  services  rendered  in  suits  prosecuted  by  such  cor- 
•porations,  but  does  not  apply  to  public  corporations.  The  court, 
therefore,  erred  in  sustaining  the  motion  of  the  appellees  and  in  dis- 
missing the  action  because  no  bond  for  costs  had  been  given. 

Judgment  reversed,  and  cause  remanded  with  directions  to  over- 
rule the  motion,  and  for  further  proceedings. 

/.  W,  Compton,  Sandidge  &  Allen,  for  appellant, 
A,  J.  James,  for  appellees. 


John  Tomerlin  v,  G.  Terry,  et  al. 

Conveyance  of  Real  Estate— Liability  of  Grantor. 

While  there  may  be  an  implied  agreement  upon  the  part  of  a 
grantor  who  received  the  price  to  refund  to  the  grantee  the  amount 
overpaid  under  the  contract  of  sale,  this  obligation  does  not  embrace 
a  nominal  grantor  who  Joins  in  the  deed  but  receives  no  part  of  the 
purchase-price. 

APPEAL  FROM  TODD  CIRCUIT  COURT. 

March  10,  1876. 

Opinion  by  Judge  Lindsay  : 

The  deed  from  Blakey  &  Terry  shows  upon  its  face  that  Terry 
was  only  a  nominal  vendor,  and  that  he  merely  joined  in  the  con- 
veyance to  pass  the  legal  title  out  of  himself.  It  shows  that  Blakey 
conveyed  in  his  character  of  trustee  for  Mrs.  Bibb.  There  is  no  com- 
plaint of  a  breach  of  warranty  of  title.  The  complaint  is  that  there 
is  a  deficit  in  the  quantity  of  land  conveyed. 


630  Kentucky  Opinions. 

There  may  be  an  implied  agreement  upon  the  part  of  those  who 
sold  the  land  and  received  the  price  paid  therefor,  to  refund  the 
amount  overpaid,  under  the  terms  of  the  contract  of  sale,  but  as 
Terry  neither  did  nor  could  have  received  any  portion  of  this  ex- 
cess, and  as  Blakey  received  nothing  as  an  individual,  there  could 
have  been  no  implied  undertaking  upon  their  part,  or  upon  the  part 
of  either  of  them,  to  refund  to  appellants. 

As  Blakey  was  sued  as  an  individual,  and  as  Terry  was  not  liable 
in  any  capacity,  the  court  properly  dismissed  appellant's  petition. 

Judgment  affirmed. 

Perkins  &  Perkins,  for  appellant.  Terry  &  Kennedy,  for  appellees. 


Abner  Minton  v.  L.  W.  Beard. 

Conveyance  of  Real  Estate — ^Judicial  Knowledge. 

The  court  Judicially  knows  that  a  named  county  is  in  the  state  of 
Kentucky  and  that  a  named  town  is  the  county  seat. 

Inadequate  Price. 

The  mere  inadequacy  of  price  is  not  cause  for  setting  aside  a  Judi- 
cial sale  of  real  estate,  when  conducted  in  good  faith  and  there  is  no 
proof  showing  unfairness  or  irregularity;  but  when  inadequacy  is 
coupled  with  the  fact  that  no  description  of  the  land  was  given  in 
the  advertisMuent  of  sale,  to  enable  bidders  to  know  what  they  were 
buying  and  whether  they  are  buying  free  of  liens  or  not,  a  sale  will 
be  set  aside. 

APPEAL  PROM  BUTLER  CIRCUIT  COURT. 

March  14,  1876. 

Opinion  by  Judge  Pryor: 

Although  the  petition  is  defective  no  demurrer  was  entered  by  the 
appellant,  but  an  answer  filed  curing  the  defect  by  placing  directly 
in  issue  the  want  of  title.  The  case  upon  this  issue  was  tried,  and 
such  a  title  exhibited  by  the  appellee  as  enabled  him  by  his  deed  to 
pass  to  the  appellant  a  perfect  title.  The  court  judicially  knows  that 
the  county  of  Washington  is  in  this  state,  and  that  the  county  seat  is 
Springfield.  Therefore  the  presumption  at  once  arises  and  is  con- 
clusive upon  the  facts  of  this  record  that  the  will  of  Walton  was  ad- 
mitted to  probate  in  this  state.  The  will  of  Walton  passes  to  the 
wife  a  fee  simple  estate  in  the  land.  The  other  objections  to  the  title 
made  by  appellant  are  not  available. 


John  A.  Stiff,  et  al.,  v.  F.  M.  Stiff,  et  al.  631 

It  seems  to  us,  however,  that  the  exceptions  to  the  commissioner's 
report  of  sale  should  have  been  sustained.  There  is  no  description 
in  the  notice  of  sale  of  the  land  to  be  sold  or  the  amount  of  the  judg- 
ment to  be  made,  and  while  these  facts,  disconnected  from  any  other 
consideration,  might  not  invalidate  the  sale,  when  taken  in  connec- 
tion with  the  great  inadequacy  of  price,  the  chancellor  should  have 
ordered  a  resale.  The  party  had  entered  upon  the  land,  having  pur- 
chased it  at  the  price  of  four  hundred  seventy-five  dollars,  and  made 
improvements  upon  it,  and  had  paid  three  hundred  dollars  of  the 
purchase  money ;  and  his  vendor  in  this  proceeding  becomes  the  pur- 
chaser and  obtains  a  deed  to  the  whole  tract  for  one  hundred  dollars, 
leaving  his  vendee  still  indebted  to  him  in  the  sum  of  seventy-five 
dollars.  The  chancellor  will  not  disturb  a  sale  for  the  mere  inaiie- 
quacy  of  price  when  it  appears  that  the  proceedings  have  been  con- 
ducted in  good  faith ;  and  there  is  an  absence  of  proof  in  the  record 
showing  unfairness  or  any  irregularity  in  the  proceeding. 

In  this  case  it  does  not  appear  from  the  advertisement  how  much 
money  is  to  be  raised  by  the  sale,  nor  is  there  any  description  given 
of  the  land  so  as  to  invite  bidders,  except  by  a  reference  to  the  deed 
filed  in  the  record  and  tendered  by  the  appellee.  The  party  intend- 
ing to  purchase  upon  an  inspection  of  this  deed  finds  a  lien  retained 
for  a  part  of  the  purchase  money,  and  is  likely  not  to  know  whether 
this  lien  will  be  superior  to  his  rights  if  he  purchases,  and  certainly 
cannot  tell  whether  it  is  the  same  lien  for  which  the  land  is  to  be  sold 
without  investigating  the  whole  record.  These  facts,  connected  with 
the  inadequacy  of  price,  should  be  held  sufficient  to  set  aside  the  sale. 
The  appellant  is  not  entitled  to  a  rescission  of  the  contract  and  un- 
der the  proof  the  judgment  of  sale  was  proper.  For  the  reasons  in- 
dicated the  judgment  confirming  the  report  of  sale  is  reversed  and 
cause  remanded  with  directions  to  cancel  the  deed  to  the  appellee 
and  order  a  resale  of  the  property,  and  for  further  proceedings  con- 
sistent with  this  opinion. 

B.  L.  D,  Guffy,  for  appellant.    William  Ward,  for  appellee. 


John  A.  Stiff,  et  al.,  v.  F.  M.  Stiff,  et  al. 

Guardian  and  Ward — Bondsmen's  Liability. 

The  sureties,  in  each  bond  where  a  guardian  is  under  two  separate 
bonds,  are  liable  to  the  ward' for  any  money  which  came  to  the  hands 
of  their  principal,  whether  received  before  or  after  the  date  of  the 
bond  upcm  which  they  are  sureties. 


632  Kentucky  Opinions. 

APPEAL  PROM  BRECKENRIDGE  CIRCUIT  COURT. 

March  14,  1876. 

Opinion  by  Judge  Cofer: 

The  sureties  in  each  bond  are  liable  to  the  ward  for  any  money 
which  came  to  the  hands  of  their  principal,  whether  received  before 
or  after  the  date  of  the  bond  upon  which  they  are  sureties.  Elbert  z\ 
Jacoby,  8  Bush  542 ;  Boyk  v.  Gault,  et  al.,  3  Bush  644. 

The  credit  for  the  board  and  clothing  of  the  ward  was  properly 
rejected.  During  the  years  1861,  2  and  3,  and  a  portion  of  the 
year  1864  the  ward's  father  was  living,  and  the  guaruian  was  not  ap- 
pointed until  August,  1864.  During  the  lifetime  of  the  father  he  was 
liable  for  the  board  and  clothing  of  the  child ;  and  if  the  appellant  is 
not  to  be  deemed  to  have  boarded  and  clothed  him  as  an  act  of  hos- 
pitality, his  claim  for  compensation  was  against  the  father,  and  not 
against  the  child,  and  especially  so  as  he  had  not  then  been  ap- 
pointed guardian. 

The  evidence  shows  that  from  1864  to  the  time  when  the  appel- 
lant, John  A.  Stiff,  was  removed  from  his  office  of  guardian,  the  ap- 
pellee was  abundantly  able  to  earn,  and  did  earn  as  much  as  his  board 
and  clothing  were  worth.  The  answer  does  not  contain  a  counter- 
claim or  a  set-oflF,  and  no  reply  was  necessary. 

Perceiving  no  error,  the  judgment  is  affirmed  as  to  all  the  appel- 
lants except  Leonard  Cashman.  He  does  not  appear  to  have  been 
served  with  process,  and  did  not  appear  in  the  action. 

The  judgment  as  to  him  is  rez^ersed,  and  the  cause  is  remanded, 
for  further  proceedings. 

/.  G.  Haswell,  for  appellants.    R.  H.  Boivmer,  for  appellees. 


R.  S.  Hudson,  et  al.,  v.  Thomas  S.  Hudson,  et  al. 

Sale  to  Defraud  Creditors — Preference  of  Creditor. 

An  Insalvent  debtor  cannot  legally  sell  plroperty  to  one  creditor  for 
the  purpose  of  preferring  him  to  the  exclusion  of  his  other  creditors 
and  In  contemplation  of  insolvency. 

APPEAL  FROM  PULASKI  CIRCUIT  COURT. 

March  16,  1876. 

Opinion  by  Judge  Peters  : 

At  the  times  of  the  sales  of  tlie  whisk}'^  and  other  personal  property 


Lulu  Huff,  et  al.,  v.  Henry  Dehaven,  et  al.  633 

by  Thomas  S.  Hudson  to  William  Hubble,  who  had  manifested 
some  uneasiness  on  the  subject,  and  the  night  before  the  sale  by 
Thomas  S.  Hudson  of  the  whisky  there  in  Louisville  to  him,  he  went 
to  where  John  P.  Hudson  lived,  who  was  a  partner  in  the  whisky, 
and  spent  the  night  with  him  to  prevail  on  him  to  agree  to  a  division 
of  that  whisky,  and  on  the  same  day  the  agreement  was  made  Hub- 
ble purchased  it  from  Thomas  S.  Hudson.  He  afterwards  pur- 
chased from  him  one  yoke  of  oxen,  eight  head  of  cattle,  two  mules, 
one  wagon,  and  one  mare,  at  the  agreed  total  price  of  $496,  all  of 
which  he  credited  on  the  indebtedness  of  Hudson  to  him.  The  live 
stock  and  other  personalty  retained  by  Hudson  were  of  little  value 
compared  with  the  value  of  that  sold  to  Hubble. 

Besides  his  indebtedness  to  Hubble,  he  owed  a  number  of  other 
debts,  amounting  to  a  large  sum,  considering  his  means,  and  he 
was  unable  to  pay  them.  He  proves  he  was  pressed  by  his  creditors 
before  and  at  the  time  of  the  sales  to  Hubble,  and  had  no  money ;  and 
J.  P.  Hudson  proves  that  he  told  Hubble  that  the  partnership  debts 
of  Thomas  S.  Hudson  and  himself  were  not  paid ;  and  he  then  told 
him  that  said  debts  must  be  paid,  and  Thomas  S.  Hudson's  only 
chance  to  raise  money  was  by  a  sale  of  the  whisky  in  Louisville,  and 
that  he  was  bound  to  sell  it  at  some  price  to  pay  his  debts.  Besides 
Hubble  and  Thomas  S.  Hudson  were  brothers-in-law,  and  Hubble 
was  in  a  situation  to  know  the  failing  circumstances  of  Hudson. 

From  the  evidence  in  the  case  all  of  Thomas  S.  Hudson's  property, 
real  and  personal,  left  after  the  sale  to  Hubble,  was  insufficient  to 
pay  his  debts  and  he  was  insolvent  at  the  time.  We  are,  therefore, 
constrained  to  conclude  that  the  sale  was  made  to  Hubble  by  Thomas 
S.  Hudson  for  the  purpose  of  preferring  Hubble  to  the  exclusion  of 
his  other  creditors  and  in  contemplation  of  insolvency. 

Wherefore  the  judgment  dismissing  the  petition  is  reversed  and 
the  cause  is  remanded  for  further  proceedings  consistent  herewith. 

7.  Z.  Morrow,  for  appellants.    A.  /.  James,  for  appellees. 


LuLA  Huff,  et  al.,  ^^  Henry  Dehaven,  et  al. 

Conveyance  of  Real  Estate — Mental  Capacity — ^Undue  Influence. 

A  father  having  mental  capacity  and  where  no  undue  influence  is 
used  upon  him  may  legally  convey  the  major  portion  of  his  real 
estate  to  one  child  to  the  exclusion  of  the  other  children. 


634  Kentucky  Opinions. 

Executor  De  Son  Tort 

An  executor  de  son  tort  is  liable  to  the  rightful  representative  of 
a  decedent  and  not  to  the  heirs  or  distributees.  The  claims  of  the 
heirs  are  postponed  to  the  rights  of  creditors. 

APPEAL  FROM  BRECKENRIDGB  CIRCUIT  COURT. 

March  17,  1876. 

Opinion  by  Judge  Pryor  : 

The  proof  in  the  case  conduces  to  show  that  the  appellee,  Henry 
Dehaven,  had  labored  upon  the  farm  of  his  father  for  many  years; 
that  he  was  industrious  and  economical  in  his  habits;  and  there  is 
nothing  unreasonable  in  his  having  accumulated  a  few  thousand 
dollars  during  a  period  of  twenty  or  thirty  years.  He  was  entitled 
by  contract  with  his  father  to  an  interest  in  the  annual  profits  of 
the  farm,  and  having  devoted  his  whole  life  to  the  accumulation  of 
means  for  his  father  as  well  as  himself,  the  fact  that  the  latter  con- 
veyed to  the  son  his  homestead  fails  of  itself  to  establish  either  a 
want  of  capacity  on  the  part  of  the  father  to  make  the  conveyance, 
or  the  undue  influence  of  the  son  in  procuring  it. 

The  old  man  in  1868  had  then  on  hand  in  money,  notes  and  gov- 
ernment bonds  as  much  as  eight  thousand  dollars  that  he  then  dis- 
tributed between  his  children  and  grandchildren.  He  executed  to  his 
son  a  bond  for  title  to  the  land  long  before  the  deed  was  executed. 
The  bond  was  in  his  (the  father's)  handwriting,  and  the  execution 
of  the  deed  was  but  carrying  out  his  intentions  evidenced  by  his  own 
written  signature  and  by  his  declarations  made  prior  to  as  well  as 
long  after  its  execution.  Isaac  Dehaven  seems  to  have  been  a  man 
of  more  than  ordinary  brains  and  qualifications,  and  up  to  his  death 
retained  his  mental  vigor  sufficiently  at  least  to  enable  him  to  fully 
comprehend  the  nature  and  character  of  his  estate  and  to  dispose  of 
it  understandingly.  In  fact,  there  is  but  slight  evidence  tending  to 
show  that  his  mind  was  at  all  impaired,  and  none  evidencing  the 
exercise  of  any  undue  influence  over  him  by  his  son.  The  evidence 
of  some  of  the  heirs  who  are  contesting  the  appellees'  right  to  the 
land  show  the  character  of  services  the  son  rendered  the  father  and 
the  obligation  resting  upon  the  latter  to  give  to  this  son  more  than 
the  other  children.  The  court  below  acted  properly  in  dismissing 
appellants'  petition. 

As  to  the  personal  estate  it  is  unnecessary  in  the  present  case  to 
determine  whether  the  appellee  has  fully  accounted  for  it  or  not.  A 
delimitation  of  that  question  would  not  preclude  the  administrator 


O.  S.  Williams  v,  G.  W.  Warner,  et  al.  635 

of  Isaac  Dehaven  from  instituting  an  action  to  recover  the  personalty 
or  its  value.  Only  two  years  had  elapsed  from  his  death  to  the  insti- 
tution of  the  present  action,  and  the  heirs  have  no  cause  of  action 
against  the  appellees  to  make  them  account  for  the  personal  estate  (if 
any)  wrongfully  disposed  of  and  that  belonged  to  the  father. 

The  fact  that  the  appellees  allege  there  are  no  debts  against  the 
estate  cannot  alter  the  rule.  An  executor  de  son  tort  is  liable  to  the 
rightful  representative,  and  not  to  the  heirs  or  distributees.  The 
claims  of  the  heirs  are  postponed  to  the  rights  of  creditors,  and  if  one 
heir  can  so  dispose  of  the  personal  estate  of  the  executor,  or  having 
it  in  possession  fails  to  account,  he  is  liable  to  an  action  by  the  other 
heirs  for  its  amount,  and  compelled  to  distribute.  The  claims  of 
creditors  would  be  in  effect  disregarded,  and  the  heirs  allowed  to 
consume  or  dispose  of  the  whole  estate  without  regard  to  his  rights. 
If  the  chancellor  will  compel  the  heir  to  distribute  in  such  a  case,  he 
will  be  allowed  to  distribute  without  the  aid  of  the  chancellor,  and 
no  administration  made  necessary.  The  heirs  or  some  of  them  have 
the  right  to  administer,  and  this  is  the  only  legal  or  equitable  step  to 
be  taken  in  order  to  have  a  suit  for  a  settlement,  that  the  chancellor 
may  determine  who  is  entitled  to  the  fund.  Vance's  Adm'r  v. 
Vance's  Heirs,  5  B.  Mon.  521.  Judgment  below  is  aMrmed.  Judge 
Cofer  not  sitting. 

Kinchloe  &  Eskridge,  for  appellants, 
Williams  &  Broiifi,  for  appellees. 


O.  S.  Williams  v,  G.  W.  Warner,  et  al. 

Mortgage — ^Preference  of  Creditor. 

A  mortgage  or  sale  of  property  not  at  the  time  subject  to  the  claims 
of  creditors  cannot  be  set  aside  at  the  Instance  of  creditors. 

APPEAL  FROM  GARRARD  CIRCUIT  COURT. 

March  17,  1876. 

Opinion  by  Judge  Lindsay  : 

It  is  not  averred  that  the  mortgage  executed  by  George  W.  to  John 
Warner,-  was  actually  fraudulent. 

The  only  claim,  therefore,  that  appellant  can  assert  to  the  proceeds 
of  the  corn,  must  arise  out  of  the  averment  that  it  was  executed  in 
contemplation  of  insolvency,  and  to  prefer  John  W.  Warner  and 


636  Kentucky  Opinions. 

Robinson  to  the  other  creditors  of  the  mortgagor.  This  averment 
is  distinctly  and  unequivocally  denied.  The  only  proof  conducing  in 
any  degree  to  sustain  it  is  the  agreed  fact  that  the  mortgagor  had  no 
property,  or  very  little  property  subject  to  levy  and  sale  under  execu- 
tion, at  the  date  of  the  execution  of  the  mortgage. 

When  it  is  considered  in  connection  with  this  fact,  that  the  prop- 
erty mortgaged  was  not,  itself,  subject  to  the  payment  of  appellees' 
debts,  it  is  difficult  to  perceive  how  the  preference  given  could  bring 
the  case  within  the  reason  of  the  statute  of  1856.  This  court  has 
heretofore  held,  and  still  adlieres  to  the  doctrine,  that  a  mortgage  or 
sale  of  property  not  at  the  time  subject  to  the  claims  of  creditors, 
cannot  be  set  aside  under  the  provisions  of  the  act  in  question.  Lislt- 
by.  White  &  Cochran  v.  Perry  &  Clayton,  6  Bush  515. 

It  may  be  that  a  sale  or  mortgage  of  a  growing  crop,  made  with 
the  intent  to  commit  an  actual  fraud,  can  be  disregarded  when  the 
crops  mature;  but  that  question  does  not  arise  in  this  case,  as  no 
actual  fraud  is  charged.  It  does  not  matter  that  John  W.  Warner, 
was  paid  nothing  as  surety  for  George  W.  He  has  the  right  to  have 
the  proceeds  of  the  mortgaged  property  applied  to  the  payment  of 
the  debt  for  which  he  is  bound  as  surety. 

From  all  that  appears  in  tliis  record  we  may  infer  that  George 
W.  Warner  purchased  the  land  from  Robinson  before  the  debt  to 
appellant  was  contracted.  Such  being  the  case,  he  has  the  right  to 
pay  for  said  land  and  hold  his  homestead  as  against  such  debt,  and 
equity  will  not  compel  Robinson  to  refuse  payment,  and  resort  to 
his  lien  on  the  land. 

Judgment  affirmed. 

Burdett  &  Hopper,  for  appellant, 
John  A.  Anderson,  for  appellees. 


William  M.  Green  t\  Lucindia  Wilson. 

Decedent's  Estates — Personal  Property. 

The  title  of  personal  property  of  an  intestate  vests  in  his  personal 
representative  as  soon  as  he  qualifies  and  it  becomes  his  duty  upon 
appraisement  to  set  aside  to  the  widow  or  infant  children  articles 
of  personalty  exempted  from  distribution.  The  widow  in  such  a  case 
has  no  cause  of  action  to  recover  property  not  thus  set  aside  for  her. 


William  M.  Green  z/.  Lucindia  Wilson.  637 

APPEAL.  FROM  RUSSELL  CIRCUIT  COURT. 

March  18,  1876. 

Opinion  by  Judge  Cofer: 

The  title  to  the  personal  estate  of  one  who  dies  intestate,  vests  in 
his  personal  representative  as  soon  as  he  qualifies.  When  appraisers 
are  appointed  it  is  their  duty  to  set  apart  to  the  widow,  if  there  be 
one,  or  if  there  be  no  widow,  then  to  the  infant  children  of  the  intes- 
tate, if  any,  the  articles  of  personal  property  exempted  from  distribu- 
tion, if  on  hand ;  and  in  lieu  of  such  as  are  not  on  hand,  to  set  apart 
money  or  other  proi^erty  as  directed  by  the  statute.  As  soon  as  the 
designated  articles  are  set  apart,  or  other  property  is  set  apart  in  lieu 
of  them,  the  title  vests  in  the  widow,  if  there  be  one,  and  if  not,  in  the 
infant  children.  But  when  the  designated  articles  are  not  on  hand, 
the  widow  acquires  no  right  to  other  property  in  lieu  of  them  unless 
it  is  set  apart  to  her  by  the  appraisers. 

In  this  case  the  appraisers  seem  to  have  set  apart  to  the  widow  as 
many  of  the  designated  articles  as  were  found  on  hand,  and  in  lieu  of 
those  not  on  hand  they  set  apart  to  her  money,  and  for  that  she  must 
look  to  the  funds  in  the  hands  of  the  administrator.  She,  therefore, 
had  no  right  to  recover  against  the  appellant,  even  though  he  unlaw- 
fully converted  the  com  in  contest  in  this  case.  The  com  was  not  set 
apart  to  her,  and  if  it  belonged  to  the  intestate  the  title  was  in  the  ad- 
ministrator, who  alone  could  sue  for  its  conversion.  She  is  entitled 
to  receive  from  the  administrator  the  amount  of  money  indicated  by 
the  appraisers,  in  lieu  of  exempted  articles  she  did  not  get ;  and  he  is 
liable  to  her  if  he  has  funds,  or  if  there  are  funds  which  he  ought  to 
get,  with  which  to  pay  her,  but  she  cannot  maintain  this  action  for 
property  not  set  apart  to  her. 

The  court,  therefore,  erred  in  overruling  the  appellant's  demurrer 
to  the  petition. 

Judgment  reversed  and  cause  remanded  with  directions  to  sustain 
the  demurrer,  and  dismiss  the  petition. 

/.  F.  Montgomery,  A,  J,  James,  for  appellant, 
William  S,  Stone,  James  E,  Hays,  for  appellee. 


638       •  Kentucky  Opinions. 

Leet,  Crutchfield,  et  al.,  v.  D.  C.  Robertson. 

Attachment — Payment — Sale  to  Defraud  Creditors. 

Where  parties  a^ee  that  the  question  as  to  whether  the  attachmmt 
should  be  sustained  shall  be  submitted  to  the  court  and  parol  evi- 
dence heard  on  the  motion  to  dissolve,  if  it  was  irregular  for  the  court 
to  hear  that  branch  of  the  case,  the  irregularity  was  waived  by  the 
agreement 

Pa3mient. 

One  cajmot  pay  his  debts  by  offering  to  pay  them  in  horses  at  a 
price  fixed  on  them  by  himself,  and  an  offer  to  do  so  not  accepted 
will  not  relieve  the  debtor  or  his  sureties. 

Sale  to  Defraud  Creditors. 

Where  property  of  an  insolvent  debtor  is  sold  by  him  to  a  creditor 
for  one-third  of  its  value,  the  fact  affords  some  evidence  that  the  sale 
was  pretended  and  was  to  defeat  his  creditors. 

APPEAL  FROM  DAVIESS  CTIRGUIT  COURT. 

March  21,  1876. 

Opinion  by  Judge  Peters  : 

The  record  shows  that  the  question  as  to  whether  the  attachment 
should  be  sustained  was  by  consent  submitted  to  the  court,  and  parol 
evidence  heard  on  appellants'  motion  to  discharge  it.  If  it  had  been 
otherwise  irregular  to  hear  that  branch  of  the  case,  then  that  irreg- 
ularity was  waived  by  consent  of  the  parties. 

It  certainly  did  not  absolve  Crutchfield  from  his  obligation  to  pay 
the  debt  he  owed  Tichner  by  offering  to  pay  it  in  horses  at  a  price 
fixed  on  them  by  himself,  or  in  other  commodities  not  desired  by  his 
creditor,  nor  did  such  offer  relieve  his  surety  or  furnish  him  with  any 
excuse  for  placing  his  effects  out  of  the  reach  of  his  creditors. 

It  is  manifest  from  the  evidence  that  the  prices  which  Saunders 
claims  to  have  paid  for  the  horse  by  purchase,  and  for  the  wood  and 
lumber  Leet  claims  to  have  purchased,  were  little  more  than  one- 
third  of  their  fair  value,  and  there  was  no  visible  change  of  posses- 
sion of  any  or  either  of  the  articles  after  the  asserted  sale;  and  it 
further  appears  from  the  evidence  that  Crutchfield  was  apprehending 
trouble  on  account  of  the  debts  for  which  appellee  was  his  surety, 
of  which  Saunders  was  apprised,  as  Vanover  proves,  and  circum- 
stances point  very  strongly  to  the  conclusion  that  Leet  was  not  ig- 
norant of  them. 

From  the  facts  as  exhibited  we  cannot  doubt  that  the  pretended 


Newton  Wainscott  v.  Commonwealth.  639 

sales  were  made  for  the  purpose  of  removing  the  property  from  the 
reach  of  Crutchfield's  creditors,  and  especially  to  protect  it  from  the 
pa)rment  of  the  debts  on  which  appellee  was  his  surety.  * 
Judgment  affirmed. 

Ray  &  Walker,  for  appellants.    Owen  &  Ellis,  for  appellee. 


Newton  Wainscott  v.  Commonwealth. 

Criminal  Law — Evidence  of  Dying  Declarations. 

To  be  admissible  as  evidence  dying  declarations  must  be  made  un- 
der a  sense  of  impending  death.  There  must  be  an  impression  of 
almost  immediate  dissolution. 

Evidence. 

A  defendant  in  a  charge  of  homicide,  asserting  self-defense,  should 
be  permitted  to  prove  the  state  of  his  clothing  and  the  bruised  condi- 
tion of  his  face  on  the  evening  succeeding  the  affray. 

APPEAL  PROM  OWEN  CRIMINAL  COURT. 

March  21,  1876. 

Opinion  by  Judge  Lindsay  : 

Certain  witnesses,  against  the  objections  of  the  appellant,  were  al- 
lowed to  prove  statements  made  by  the  deceased,  relative  to  the 
circumstances  attending  the  shooting  and  wounding  from  which  he 
died.  The  question  is  whether  these  statements  were  admissible  as 
dying  declarations. 

William  Clifton  proves  that  the  deceased  said  all  the  time  he  did 
not  think  he  would  recover.  He  said  as  soon  as  shot,  *'I  am  shot 
and  killed.  I  will  never  get  well.  I  do  not  think  I  will  ever  get 
well.'*  Another  witness  proved  that  he  said  he  was  badly  hurt,  and 
that  he  was  badly  shot,  and  still  another  proved  that  he  said  he  did 
not  think  he  could  get  well  and  still  another  that  he  said  he  believed 
he  would  die. 

This  is  the  substance  of  all  that  is  proved  relative  to  the  opinion 
or  belief  of  the  deceased  as  to  his  condition.  There  is  nothing  to 
show  that  his  physician,  or  any  other  person  informed  him  of  the 
nature  of  his  injuries  or  of  the  danger  of  impending  death.  It  is 
essential  to  the  admissibility  of  dying  declarations  that  they  shall  be 
made  under  a  sense  of  impending  death.  There  must  be  an  impres- 
sion of  almost  immediate  dissolution.    If  it  appears  that  the  deceased 


640  Kentucky  Opinions. 

at  the  time  of  the  declaration  had  any  expectation  or  hope  of  recov- 
ery, however  slight  it  may  have  been,  and  though  death  actually 
ensued  in  an  hour  afterwards,  it  is  inadmissible.  Nor  is  it  enough 
that  he  believed  that  he  would  not  recover.  There  must  also  have 
been  a  prospect  of  immediate  dissolution,  i  Greenleaf  on  Evidence, 
Sec.  158.  The  exclamation  made  at  the  time  of  the  shooting,  and 
when  the  deceased  was  necessarily  ignorant  of  the  nature  and  extent 
of  his  wounds,  is  not  sufficient. 

None  of  his  statements  show  that  he  regarded  his  speedy  death  as 
the  necessary  result  of  his  injuries.  He  seems  to  have  believed  that 
he  would  ultimately  die.  He  did  not  think  he  would  recover,  but  he 
is  not  proven  to  have  spoken  at  any  time  under  a  sense  of  almost  im- 
mediate dissolution.  The  proof  does  not  show  that  at  the  time 
he  was  speaking  there  was  a  prospect  of  speedy  death.  If  the  de- 
ceased was  attended  by  a  physician,  his  testimony  would  have  thrown 
much  light  upon  this  branch  of  the  case ;  but  he  was  not  examined  as 
a  witness.  We  are  constrained  to  conclude  that  the  proof  as  to  the 
opinion  of  the  deceased  with  regard  to  the  character  of  his  wounds, 
and  the  probability  of  his  speedy  death  was  not  such  as  to  authorize 
his  statements  to  be  proved  to  the  jury,  and  that  the  objections  of 
the  appellant  should  have  been  sustained. 

The  appellant  has  no  right  to  complain  on  account  of  the  exclusion 
of  the  evidence  touching  the  experiments  made,  as  to  whether  the 
report  of  the  pistol  could  be  heard  at  the  distance  testified  to  by  one 
of  the  witnesses  examined  by  the  commonwealth.  It  was  proper  to 
allow  the  commonwealth  to  prove  that  the  appellant  fired  off  a  pistol, 
on  the  morning  of  the  shooting.  That  fact  tended  to  show  that  he 
was  armed  when  the  affray  with  the  deceased  commenced. 

The  proof  of  his  announcement,  made  on  the  same  morning,  as  to 
what  he  intended  to  do  on  that  day,  ought  to  have  been  excluded. 
He  made  no  reference  to  the  deceased,  nor  to  William  Clifton,  and 
there  is  nothing  in  proof  to  show  that  he  then  entertained  hostile 
feelings  toward  either  of  them. 

The  appellant  should  have  been  allowed  to  prove  the  state  of  his 
clothing  and  the  bruised  condition  of  his  face  on  the  evening  suc- 
ceeding the  affray.  His  plea  of  self-defense  rested  upon  proof  con- 
ducing in  some  degree  to  show  that  the  deceased  had  thrown  him 
upon  the  ground,  and  was  assaulting  him,  when  the  shooting  was 
done.  These  facts  were  pertinent  to  that  issue;  and  as  it  was  not 
proved  or  charged  that  he  had  soiled  his  clothing,  or  had  been  in- 


W.  A.  Hickman  v.  F.  L.  Hall,  et  al.  641 

jured  at  some  other  time  and  place,  the  evidence  should  have  been 
permitted  to  go  to  the  jury,  for  what  it  was  worth. 

We  perceive  no  objection  to  the  action  of  the  court  in  giving  in- 
structions to  the  jury.  For  the  errors  indicated  in  admitting  and  re- 
jecting evidence,  the  judgment  is  reversed  and  the  cause  remanded 
for  a  new  trial  upon  principles  consistent  with  this  opinion. 

Grover  &  Montgomery,  /.  D,  Lillard,  for  appellant. 
O.  D.  McNamara,  T,  £.  Moss,  for  appellee. 


W.  A.  Hickman  v.  F.  L.  Hall,  et  al. 

Appeals — Practice — ^Duty  of  Appellant. 

An  appellant  filing  a  transcript  of  the  record  in  the  cle<rk'8  office  ot 
the  court  of  appeals  must  endorse  thereon  or  on  a  paper  filed  there- 
with the  namee  of  all  the  parties,  appellant  and  app.ellee,  and  where 
he  fails  to  do  so  and  only  one  of  the  parties  to  the  action  in  favor  of 
whom  Judgment  was  rendered,  is  named  as  appellee,  who  has  only  a 
nominal  interest  in  the  controversy,  the  appeal  will  be  dismissed. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT.. 

March  23,  1876. 

Opinion  by  Judge  Cofer: 

This  appeal  is  prosecuted  in  the  name  of  W.  A.  Hickman  alone, 
against  F.  L.  Hall.  As  repeatedly  decided,  Hickman  and  Hall  are 
the  only  parties  to  the  appeal,  and  the  only  persons  who  can  be 
affected  by  any  decision  made  by  this  court  upon  this  appeal. 

It  is  the  duty  of  the  appellant  or  his  counsel,  upon  filing  the  tran- 
script of  a  record  in  the  clerk's  office  of  this  court,  to  endorse  thereon 
or  on  some  paper  to  be  filed  therewith,  the  names  of  all  the  parties, 
appellant  and  appellee,  as  the  case  is  desired  to  stand  on  the  docket 
of  the  court.  Act  to  Amend  Sec.  879,  Civil  Code,  approved  March  6, 
1868. 

Hall  was  only  a  nominal  party,  and  the  plaintiffs  below  do  not  seem 
to  have  been  prejudiced  by  the  dismissal  of  the  petition  as  to  him, 
and  if  they  were,  the  judgment  could  not  be  reversed  upon  an  appeal 
prosecuted  by  Hickman  alone. 

The  appeal  is,  therefore,  dismissed. 

Roy  &  Walker,  for  appellant.     Williams  &  Brown,  for  appellees. 

41 


642  Kentucky  Opinions. 

J.  J.  Sanders's  Assignee,  et  al.,  v.  M.  Duvall. 


Mortgage^Foreclosure — ^Lien  for  Purchase  Money. 

The  owner  of  real  estate  cannot  by  mortgaging  it  defeat  a  bona  fide 
claim  for  balance  money  when  the  creditor  by  express  provision  re- 
served a  lien  on  such  real  estate. 

Parties  to  Action  to  Foreclose  Mortgage. 

The  legal  title  to  real  estate  does  not  pass  to  a  purchaser  at  Judicial 
sale  and  conveyance  where  the  holders  of  the  legal  title  were  not 
made  parties  in  the  case  resulting  in  such  Judgment  and  order  of  sale. 

Assignee  in  Bankruptcy. 

An  assignee  in  bankruptcy  is  not  like  an  ordinary  assignee  who 
takes  such  rights  as  his  assignor  had*  but  he  also  represents  the  cred- 
itors of  the  bankrupt  and  is  entitled  to  enforce  all  their  equities. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT. 

March  23,  1876. 

Opinion  by  Juix^e  Cofer: 

Whites  purchased  a  tract  of  land  of  Crawford  and  it  was  sold 
under  a  judgment  enforcing  a  vendor's  lien  for  purchase  money,  and 
Snook  became  the  purchaser.  Snook  paid  the  purchase  money  and 
sold  the  land,  or  the  benefit  of  his  purchase,  to  Sanders.  Sanders 
paid  the  first  and  second  instalments  of  the  purchase  money,  and  his 
note  for  the  third  and  last  instalment  was  assigned  by  Snook  to 
Duvall. 

Duvall  sued  Sanders  to  enforce  the  payment  of  the  note  by  a  sale 
of  the  land,  and  no  deed  having  been  made  to  Snook  in  execution 
of  his  purchase  at  the  decretal  sale,  it  was  agreed  between  Snook, 
Sanders  and  Duvall  that  a  deed  should  be  made  by  a  commissioner  in 
the  suit  of  Crawford  against  Whites,  directly  to  Sanders,  in  which  a 
lien  should  be  retained  on  the  land  in  favor  of  Duvall  to  secure  the 
payment  of  the  note  he  held  on  Sanders. 

A  deed  was  accordingly  made  which  recited  the  judgment  in 
favor  of  Crawford,  the  sale  under  it,  and  purchase  by  Snook,  and  that 
the  court  had  ordered  the  conveyance  to  be  made  to  Sanders ;  it  also 
acknowledged  the  payment  in  full  of  the  purchase  money ;  but  the 
record  of  the  case  of  Crawford  against  Whites  shows  that  the  pur- 
chase money  referred  to  as  paid  was  not  the  purchase  price  agreed 
to  be  paid  by  Sanders  to  Snook. 

By  an  arrangement  between  Sanders  and  Duvall,  the  suit  of  the 
latter  was  dismissed,  and  Sanders  executed  a  new  note  for  the 


J.  J.  Sanders's  Assignee,  et  al.,  v.  M.  Duvall.  643 

amount  then  due,  and  pursuant  to  the  order  of  the  court  directing  the 
conveyance  to  be  made  to  Sanders,  the  following  clause  was  inserted 
in  the  deed,  viz. : 

"It  is,  however,  distinctly  understood  and  agreed  by  the  party  of 
the  second  part  that  Maime  Duvall  has  and  holds  a  lien  on  the  above 
described  tract  of  land  to  secure  the  payment  of  the  note  of  J.  J. 
Sanders  to  Maime  Duvall  for  $2,674.20,  dated  March  12,  1872,  pay- 
able twelve  months  after  date,  with  interest  at  10  per  cent,  per  an- 
num as  appears  by  agreement  of  parties  and  orders  of  court  herein.'' 

The  order  of  court  referred  to  was  made  on  the  day  the  deed  bears 
date,  and  directed  a  lien  to  be  retained  in  favor  of  Duvall.  That 
order  was  made  pursuant  to  the  written  statements  of  Sanders  and 
Snook  filed  in  the  case.  Sanders's  statement  was  that  he  had  pur- 
chased the  land  of  Snook  and  paid  the  purchase  money,  except  the 
last  instalment,  for  which  Duvall  held  his  note  by  assignment  from 
Snook ;  and  he  asked  that  a  deed  be  made  to  him  securing  the  note 
to  Duvall,  to  which  he  said  he  was  advised  Duvall  consented. 

Snook,  in  his  statement,  asked  the  court  to  order  the  land  to  be 
conveyed  to  Sanders  upon  his  paying  Duvall's  debt  or  giving  to  him 
a  lien  upon  the  land  to  secure  it,  if  that  should  be  acceptable.  The 
deed  bears  date  March  14,  1872.  October  5,  1872,  Sanders  mort- 
gaged the  land  to  Kinkade  and  Wise  to  secure  them  as  his  sureties  in 
a  debt  of  $1,184.60  he  owed  one  Hanna.  In  July,  1873,  Duvall 
brought  suit  to  enforce  the  lien  attempted  to  be  secured  to  him  in  the 
deed.  To  that  suit  Kinkade  and  Wise  were  not  made  parties. 

September  2,  1873,  Sanders  made  an  assignment  to  Kinkade  and 
Wise  of  all  his  property  for  the  benefit  of  all  his  creditors,  but  to  pay 
first  after  the  expenses  of  the  trust,  including  compensation  to  the 
trustees,  "the  preferred  debts  of  Maime  Duvall,  the  amount  of  which 
is  about  $2,500,  and  a  debt  due  to  A.  Hanna  for  $1,180,  with  interest,, 
both  of  which  are  secured  by  mortgages ;  that  is  to  say  that  there  are. 
mortgages  on  the  land  of  the  party  of  the  first  part  to  secure  the 
payment  of  same.  The  mortgage  to  Kinkade  and  Wise,  after  setting 
forth  the  object  of  its  execution  contains  this  clause:  "subject,  how- 
ever, to  a  lien  for  the  balance  of  purchase  money  due  on  said  land 
to  M.  Duvall,  Sr.,  for  about  twenty-five  hundred  dollars." 

In  September,  1873,  Duvall  obtained  judgment  by  default  against 
Sanders  for  the  amount  of  his  note,  and  to  enforce  the  lien  asserted 
on  the  land  under  the  deed  from  the  commissioner  to  Sanders.  A 
sale  was  made  under  that  judgment  and  Duvall  became  the  pur- 
chaser.   The  sale  was  reported  to  the  March  term,  1874.    Between 


644  Kentucky  Opinions. 

the  date  of  Duvall's  judgment  and  the  sale  under  it,  Sanders  was 
adjudged  a  bankrupt,  and  the  appellant,  Gardner,  was  appointed  his 
assignee. 

At  the  March  term,  1874,  Ballou,  a  creditor  of  Sanders  and  Kin- 
kade  and  Wise,  and  the  assignee  in  bankruptcy,  filed  exceptions  to 
the  sale  and  it  was  set  aside ;  but  no  order  was  made  directing  a  re- 
sale. A  resale  was,  however,  made  when  Kinkade  and  Wise  became 
the  purchasers,  April  13,  1874.  Upon  the  coming  in  of  the  report  of 
that  sale  the  purchasers  and  the  assignee  in  bankruptcy  filed  excep- 
tions to  it  upon  grounds  set  forth  in  a  petition  of  the  latter  filed 
September  7,  1873,  against  Duvall,  Kinkade  and  Wise. 

That  petition  sets  forth  the  adjudication  of  bankruptcy, the  appoint- 
ment of  the  plaintiff  as  assignee,  the  suit  by  Duvall,  the  judgment 
and  sale  under  it,  and  purchase  by  Kinkade  &  Wise ;  the  mortgage 
and  the  assignment  to  them,  and  claimed  that  Duvall  had  no  lien,  that 
there  were  unsecured  creditors  of  Sanders  holding  debts  to  the 
amount  of  $5,000,  and  praying  that  the  sale  be  set  aside,  and  for  an 
injunction  enjoining  Duvall  from  selling  the  land  under  his  judg- 
ment. 

Kinkade  and  Wise  answered,  admitting  the  truth  of  the  allega- 
tions of  the  petition,  and  asked  that  the  sale  should  be  set  aside  upon 
the  grounds  stated  in  the  petition  but  professing  a  willingness  to 
complete  the  purchase  if  they  could  procure  a  good  title.  Duvall 
answered  and  set  out  in  detail  the  facts  respecting  the  attempt  to 
secure  to  him  a  lien  on  the  land  by  the  provisions  in  the  deed  to 
Sanders,  and  insisted  on  the  sufficiency  thereof  to  give  him  such 
lien,  and  he  averred  that  if  the  lien  was  not  secured  by  the  deed  the 
failure  was  the  result  of  mistake  and  he  prayed  that  it  might  be  cor- 
rected so  as  to  effectuate  the  intention  of  the  parties. 

The  circuit  court,  on  hearing  the  cause,  dismissed  the  petition  of 
the  assigpnee,  and  overruled  the  exceptions  to  the  report  of  sale,  and 
this  appeal  is  prosecuted  by  the  assignee  and  Kinkade  &  Wise  to  re- 
verse that  judgment  and  order. 

It  is  not  alleged  that  the  land  sold  for  less  than  its  value,  or  that 
Kinkade  and  Wise  now  have  any  claim  upon  the  land  under  their 
mortgage.  The  debt  claimed  by  Duvall  is  not  controverted,  nor  is  it 
disputed  that  it  is  for  a  part  of  the  purchase  money  which  Sanders 
undertook  to  pay  to  Snook  for  the  land.  No  fraud  or  unfairness  is 
alleged,  and  the  principal  grounds  relied  upon  for  a  reversal  are  that 
Duvall  had  no  lien,  and  that  Kinkade  &  Wise  were  necessary  parties 


J.  J.  Sanders's  Assignee,  et  al.,  v,  M.  Duvall.  645 

to  the  suit  of  Duvall  to  subject  the  land  to  his  debt.  We  will  dis- 
pose of  the  latter  question  first. 

Kinkade  &  Wise  held  the  legal  title  to  the  land,  and  should  have 
been  made  parties ;  but  what  is  the  effect  of  the  omission  to  do  so  ? 
One  effect  would  be  that  the  legal  title  would  not  pass  to  the  pur- 
chasers under  a  judgment,  sale,  and  conveyance  made  in  that  case; 
and  this,  it  seems  to  us,  would  be  all,  unless  it  may  have  been  calcu- 
lated to  produce  a  sacrifice  of  the  land  in  the  mortgages  to  the 
prejudice  of  Sanders.  The  judgment  sale  and  conveyance  to  satisfy 
Duvall's  lien,  if  he  had  one,  would  pass  to  the  purchaser  the  rights 
of  both  Duvall  and  Sanders.  The  rights  of  Kinkade  and  Wise  could 
not  be  affected,  and  they  might  have  proceeded  on  their  mortgage 
to  subject  the  land  to  sale  to  pay  first  Duvall's  lien,  if  any,  and  then 
to  pay  what  might  be  due  to  them,  and  this  the  purchasers  could  not 
have  successfully  resisted. 

So  far  as  Sanders  was  concerned,  having  failed  to  make  defense 
or  to  require  Kinkade  and  Wise  to  be  made  parties,  he  had  no  just 
cause  of  complaint;  and  Kinkade  and  Wise  as  mortgagees  have 
none,  for  they  assert  no  claim  under  their  mortgage  which  must  now 
be  regarded  as  satisfied.  The  judgment  for  a  sale  was  rendered 
before  the  adjudication  in  bankruptcy,  and  the  assignee  has  no 
ground  for  complaint  unless  he  stands  in  a  better  position  than  the 
bankrupt. 

Had  Duvall  a  lien  ?  Duvall  is  not  a  party  to  the  deed,  and  is  not 
the  vendor  of  Sanders.  The  deed  acknowledges  the  payment  in 
full  of  the  purchase  money,  but  makes  mention  of  the  purchase  by 
Snook  and  the  order  of  court  directing  the  conveyance  to  be  made 
to  Sanders,  and  also  of  the  order  directing  a  lien  to  be  retained  to 
secure  Duvall,  and  that  order,  we  have  already  seen,  was  based  upon 
the  written  statements  and  request  of  Snook  and  Sanders.  It  was 
the  intention  of  both  Snook  and  Sanders  to  secure  Duvall  by  a  lien, 
and  Snook  only  agreed  to  allow  the  deed  to  be  made  to  Sanders  on 
condition  that  such  lien  was  secured  and  accepted  by  Duvall.  Before 
the  deed  was  made  Duvall,  as  the  assignee  of  Snook,  had  a  lien, 
and  it  is  not  claimed  that  Duvall  intended  to  surrender  it ;  and  if  a 
lien  was  not  secured  it  was  because  all  parties  made  a  mistake  in 
choosing  a  mode  of  doing  so,  and  against  such  a  mistake  the 
chancellor  would,  if  necessar}',  grant  relief. 

But  Sanders  having  not  only  recognized  the  lien  in  his  mortgage 
to  Kinkade  and  Wise,  and  his  deed  of  trust  to  them,  in  which  he  re- 
fers to  Duvall's  as  preferred  debt,  but  having  stood  by  and  allowed 


646  Kentucky  Opinions. 

judgment  to  go  enforcing  that  lien,  he  was  precluded  before  he  was 
adjudged  a  bankrupt  from  disputing  the  validity  of  the  lien. 

We  do  not,  therefore,  deem  it  necessary  to  decide  whether  the 
commissioner's  deed,  if  taken  alone,  gave  an  enforcible  lien  or  not, 
unless  notwithstanding  Sanders  was  unable  to  controvert  it,  his  as- 
signees in  bankruptcy  may  do  so.  We  concur  with  the  counsel  for 
the  appellants  that  an  assignee  in  bankruptcy  is  not  like  an  ordinary 
assignee  who  takes  any  such  rights  as  his  assignor  had,  but  he  also 
represents  the  creditors  of  the  bankrupt,  and  is  entitled  to  enforce 
all  their  equities.  Shackleford,  Assignee,  et  ai,  r.  Collier,  et  a/.,  6 
Bush  149.  As  a  result  of  this  doctrine  an  assignee  in  bankruptcy  is 
invested  with  all  the  rights,  legal  and  equitable,  which  the  bankrupt 
or  any  creditor  of  his  had  at  the  date  of  adjudication  whereby 
either  could  have  secured  assets  to  the  bankrupt  or  for  the  payment 
of  the  creditor,  and  he  is  also  vested  with  a  right  to  recover  any 
money  or  effects  parted  with  by  the  bankrupt  in  violation  of  the  bank- 
rupt law,  although  no  creditor  could  have  reached  it.  This  we  think 
is  the  extent  of  the  rights  of  an  assignee  in  bankruptcy. 

It  does  not  appear  in  this  record  that  any  creditor  of  Sanders  could, 
at  the  date  when  he  was  adjudged  a  bankrupt,  have  impeached 
Duvall's  judgment.  It  is  not  claimed  that  his  debt  was  riot  just,  or 
that  the  judgment  was  procured  by  fraud,  or  that  it  was  even  in- 
equitable. What  equity,  then,  had  any  of  Sanders's  creditors  to  have 
the  sale  set  aside  and  the  judgment  for  a  sale  enjoined?  The  insol- 
vency of  Sanders  gave  them  no  such  equity, unless  the  judgment  came 
within  the  provisions  of  the  act  of  1856,  and  if  they  had  such  right, 
which  does  not  appear,  it  has  not  been  set  up  or  relied  upon.  It  is 
not  alleged,  nor  does  it  appear  that  the  judgment  was  in  contraven- 
tion of  the  bankrupt  act.  The  suit  was  commenced  and  judgment  ob- 
tained, enforcing  an  alleged  lien  September  6,  1873,  and  Sanders 
was  adjudged  a  bankrupt  January  22,  1874,  more  than  four  months 
thereafter. 

It  seems,  therefore,  that  the  lien,  if  it  had  no  existence  prior  to 
the  judgment,  was  valid  against  the  assignee  and  that  he  has  failed 
to  show  in  any  aspect  of  the  case  that  he  has  a  right  to  have  the  sale 
set  aside. 

The  only  objection  that  could  have  existed  to  the  title  derived 
under  the  judgment  in  favor  of  Duvall  would  have  arisen  from  the 
mortgage  to  Kinkade  &  Wise,  and  as  that  appears  to  be  satisfied, 
and  they  were  the  purchasers  and  can  acquire  a  complete  and  valid 


Abe  Boyd,  et  al.,  v,  C.  H.  Adams,  et  al.  647 

title  by  a  deed  from  a  commissioner,  the  judgment  is  affirmed  as  to 
all  the  appellants. 

Caldwell  &  Harwood,  for  appellants. 
W,  C.  Bullock,  for  appellee. 


Abe  Boyd,  et  al.,  v,  C.  H.  Adams,  et  al. 

Costs — Taxation  by  Clerk  of  Court  of  Appeals. 

Tbe  clerk  of  the  court  of  appeals,  like  the  clerks  of  other  courts, 
is  authorized  to  tax  as  costs  one  copy  of  any  pleadings  or  exhibits  ob- 
tained by  the  successful  party. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

March  24,  1876. 

Opinion  by  Judge  Lindsay  : 

Section  32,  chap.  26,  General  Statutes,  authorizes  clerks  to  tax  as 
costs  "one  copy  of  any  pleadings  or  exhibits  obtained  by  the  success- 
ful party  or  parties.*'  This  provision  applies  to  all  clerks,  and  must, 
therefore,  include  the  clerk  of  this  court.  Copy  of  the  record  on  file 
is  substantially  a  copy  of  the  pleadings  and  exhibits  in  the  cause,  and 
it  comes  within  the  letter  and  spirit  of  the  section  referred  to. 

The  one  file  is  not  the  property  or  record  of  the  appellant.  It  is  a 
public  record,  over  which  he  has  no  control.  He  may  have  a  copy 
of  it,  in  order  that  he  may  prepare  his  appeal  for  hearing,  and  if  he 
succeeds  in  reversing  the  judgment  appealed  from,  the  expense 
legally  incurred  in  obtaining  said  copy  may  be  taxed  as  costs  in  his 
favor.  The  costs  of  no  more  than  one  copy  can  be  taxed,  however 
numerous  the  appellants  may  be. 

The  motion  to  correct  the  taxation  of  costs  in  this  case  is  over- 
ruled. 

L.  D.  Husband,  A.  Duvall,  for  appellants, 
J,  W.  BloomHeld,  for  appellees. 


James  S.  Jacoby  v,  James  G.  Neal,  et  al. 

Highways-— Viewer's  Reports— Description  of  Route. 

The  viewer's  report  upon  which  a  new  highway  is  ordered  opened 
must  contain  a  description  of  the  road  by  courses  and  distances  and 
to  comply  with  this  rule  the  points  of  Its  commencement  and  termi- 
nation should  be  fixed  by  some  visible  objects  suificient  to  determine 
their  exact  locality. 


646  Kentucky  Opinions. 

judgment  to  go  enforcing  that  lien,  he  was  precluded  before  he  was 
adjudged  a  bankrupt  from  disputing  the  validity  of  the  lien. 

We  do  not,  therefore,  deem  it  necessary  to  decide  whether  the 
commissioner's  deed,  if  taken  alone,  gave  an  enforcible  lien  or  not, 
unless  notwithstanding  Sanders  was  unable  to  controvert  it,  his  as- 
signees in  bankruptcy  may  do  so.  We  concur  with  the  counsel  for 
the  appellants  that  an  assignee  in  bankruptcy  is  not  like  an  ordinary 
assignee  who  takes  any  such  rights  as  his  assignor  had,  but  he  also 
represents  the  creditors  of  the  bankrupt,  and  is  entitled  to  enforce 
all  their  equities.  Shackleford,  Assignee,  et  al.,  v.  Collier,  et  al.,  6 
Bush  149.  As  a  result  of  this  doctrine  an  assignee  in  bankruptcy  is 
invested  with  all  the  rights,  legal  and  equitable,  which  the  bankrupt 
or  any  creditor  of  his  had  at  the  date  of  adjudication  whereby 
either  could  have  secured  assets  to  the  bankrupt  or  for  the  payment 
of  the  creditor,  and  he  is  also  vested  with  a  right  to  recover  any 
money  or  effects  parted  with  by  the  bankrupt  in  violation  of  the  bank- 
rupt law,  although  no  creditor  could  have  reached  it.  This  we  think 
is  the  extent  of  the  rights  of  an  assignee  in  bankruptcy. 

It  does  not  appear  in  this  record  that  any  creditor  of  Sanders  could, 
at  the  date  when  he  was  adjudged  a  bankrupt,  have  impeached 
Duvall's  judgment.  It  is  not  claimed  that  his  debt  was  not  just,  or 
that  the  judgment  was  procured  by  fraud,  or  that  it  was  even  in- 
equitable. What  equity,  then,  had  any  of  Sanders's  creditors  to  have 
the  sale  set  aside  and  the  judgment  for  a  sale  enjoined?  The  insol- 
vency of  Sanders  gave  them  no  such  equity, unless  the  judgment  came 
within  the  provisions  of  the  act  of  1856,  and  if  they  had  such  right, 
which  does  not  appear,  it  has  not  been  set  up  or  relied  upon.  It  is 
not  alleged,  nor  does  it  appear  that  the  judgment  was  in  contraven- 
tion of  the  bankrupt  act.  The  suit  was  commenced  and  judgment  ob- 
tained, enforcing  an  alleged  lien  September  6,  1873,  and  Sanders 
was  adjudged  a  bankrupt  January  22,  1874,  more  than  four  months 
thereafter. 

It  seems,  therefore,  that  the  lien,  if  it  had  no  existence  prior  to 
the  judgment,  was  valid  against  the  assignee  and  that  he  has  failed 
to  show  in  any  aspect  of  the  case  that  he  has  a  right  to  have  the  sale 
set  aside. 

The  only  objection  that  could  have  existed  to  the  title  derived 
under  the  judgment  in  favor  of  Duvall  would  have  arisen  from  the 
mortgage  to  Kinkade  &  Wise,  and  as  that  appears  to  be  satisfied, 
and  they  were  the  purchasers  and  can  acquire  a  complete  and  valid 


Abe  Boyd,  et  al.,  v,  C.  H.  Adams,  et  al.  647 

title  by  a  deed  from  a  commissioner,  the  judgment  is  affirmed  as  to 
all  the  appellants. 

Caldwell  &  Harwood,  for  appellants, 
IV,  C.  Bullock,  for  appellee. 


Abe  Boyd,  et  al.,  v,  C.  H.  Adams,  et  al. 

Costs — Taxation  by  Clerk  of  Court  of  Appeals. 

The  clerk  of  the  court  of  appeals,  like  the  clerks  of  other  courts, 
is  authorized  to  tax  as  costs  one  copy  of  ajiy  pleadings  or  exhibits  ob- 
tained by  the  successful  party. 

APPEAL  PROM  Mccracken  circuit  court. 

March  24,  1876. 

Opinion  by  Judge  Lindsay  : 

Section  32,  chap.  26,  General  Statutes,  authorizes  clerks  to  tax  as 
costs  "one  copy  of  any  pleadings  or  exhibits  obtained  by  the  success- 
ful party  or  parties."  This  provision  applies  to  all  clerks,  and  must, 
therefore,  include  the  clerk  of  this  court.  Copy  of  the  record  on  file 
is  substantially  a  copy  of  the  pleadings  and  exhibits  in  the  cause,  and 
it  comes  within  the  letter  and  spirit  of  the  section  referred  to. 

The  one  file  is  not  the  property  or  record  of  the  appellant.  It  is  a 
public  record,  over  which  he  has  no  control.  He  may  have  a  copy 
of  it,  in  order  that  he  may  prepare  his  appeal  for  hearing,  and  if  he 
succeeds  in  reversing  the  judgment  appealed  from,  the  expense 
legally  incurred  in  obtaining  said  copy  may  be  taxed  as  costs  in  his 
favor.  The  costs  of  no  more  than  one  copy  can  be  taxed,  however 
numerous  the  appellants  may  be. 

The  motion  to  correct  the  taxation  of  costs  in  this  case  is  over- 
ruled. 

L.  D,  Husband,  A.  Duvall,  for  appellants. 
J,  W,  Bloomfield,  for  appellees. 


James  S.  Jacoby  v,  James  G.  Neal,  et  al. 

Highways— Viewer's  Reports — Description  of  Route. 

The  viewer's  report  upon  which  a  new  hi^way  is  ordered  opened 
must  contain  a  description  of  the  road  by  courses  and  distances  and 
to  comply  with  this  rule  the  points  of  its  commencement  and  termi- 
nation should  be  fixed  by  some  visible  objects  sufficient  to  determine 
their  exact  locality. 


646  Kentucky  Opinions. 

judgment  to  go  enforcing  that  lien,  he  was  precluded  before  he  was 
adjudged  a  bankrupt  from  disputing  the  validity  of  the  lien. 

We  do  not,  therefore,  deem  it  necessary  to  decide  whether  the 
commissioner's  deed,  if  taken  alone,  gave  an  enforcible  lien  or  not, 
unless  notwithstanding  Sanders  was  unable  to  controvert  it,  his  as- 
signees in  bankruptcy  may  do  so.  We  concur  with  the  counsel  for 
the  appellants  that  an  assignee  in  bankruptcy  is  not  like  an  ordinary 
assignee  who  takes  any  such  rights  as  his  assignor  had,  but  he  also 
represents  the  creditors  of  the  bankrupt,  and  is  entitled  to  enforce 
all  their  equities.  Shackleford,  Assignee,  et  al.,  f.  Collier,  et  al.,  6 
Bush  149.  As  a  result  of  this  doctrine  an  assignee  in  bankruptcy  is 
invested  with  all  the  rights,  legal  and  equitable,  which  the  bankrupt 
or  any  creditor  of  his  had  at  the  date  of  adjudication  whereby 
either  could  have  secured  assets  to  the  bankrupt  or  for  the  payment 
of  the  creditor,  and  he  is  also  vested  with  a  right  to  recover  any 
money  or  effects  parted  with  by  the  bankrupt  in  violation  of  the  bank- 
rupt law,  although  no  creditor  could  have  reached  it.  This  we  think 
is  the  extent  of  the  rights  of  an  assignee  in  bankruptcy. 

It  does  not  appear  in  this  record  that  any  creditor  of  Sanders  could, 
at  the  date  when  he  was  adjudged  a  bankrupt,  have  impeached 
Duvairs  judgment.  It  is  not  claimed  that  his  debt  was  Hot  just,  or 
that  the  judgment  was  procured  by  fraud,  or  that  it  was  even  in- 
equitable. What  equity,  then,  had  any  of  Sanders's  creditors  to  have 
the  sale  set  aside  and  the  judgment  for  a  sale  enjoined?  The  insol- 
vency of  Sanders  gave  them  no  such  equity,  unless  the  judgment  came 
within  the  provisions  of  the  act  of  1856,  and  if  they  had  such  right, 
which  does  not  appear,  it  has  not  been  set  up  or  relied  upon.  It  is 
not  alleged,  nor  does  it  appear  that  the  judgment  was  in  contraven- 
tion of  the  bankrupt  act.  The  suit  was  commenced  and  judgment  ob- 
tained, enforcing  an  alleged  lien  September  6,  1873,  and  Sanders 
was  adjudged  a  bankrupt  January  22,  1874,  more  than  four  months 
thereafter. 

It  seems,  therefore,  that  the  lien,  if  it  had  no  existence  prior  to 
the  judgment,  was  valid  against  the  assignee  and  that  he  has  failed 
to  show  in  any  aspect  of  the  case  that  he  has  a  right  to  have  the  sale 
set  aside. 

The  only  objection  that  could  have  existed  to  the  title  derived 
under  the  judgment  in  favor  of  Ehivall  would  have  arisen  from  the 
mortgage  to  Kinkade  &  Wise,  and  as  that  appears  to  be  satisfied, 
and  they  were  the  purchasers  and  can  acquire  a  complete  and  valid 


Abe  Boyd,  et  al.,  v,  C.  H.  Adams,  et  al.  647 

title  by  a  deed  from  a  commissioner,  the  judgment  is  affirmed  as  to 
all  the  appellants. 

Caldwell  &  Harwood,  for  appellants. 
W.  C.  Bullock,  for  appellee. 


Abe  Boyd,  et  al.,  v.  C.  H.  Adams^  et  al. 

Costs — Taxation  by  Clerk  of  Court  of  Appeals. 

The  clerk  of  the  court  of  appeals,  like  the  clerks  of  other  courts, 
is  authorized  to  tax  as  costs  one  copy  of  any  pleadings  or  exhibits  ob- 
tained by  the  successful  party. 

APPEAL  FROM  McCRACKEN  CIRCUIT  COURT. 

March  24,  1876. 

Opinion  by  Judge  Lindsay  : 

Section  32,  chap.  26,  General  Statutes,  authorizes  clerks  to  tax  as 
costs  "one  copy  of  any  pleadings  or  exhibits  obtained  by  the  success- 
ful party  or  parties."  This  provision  applies  to  all  clerks,  and  must, 
therefore,  include  the  clerk  of  this  court.  Copy  of  the  record  on  file 
is  substantially  a  copy  of  the  pleadings  and  exhibits  in  the  cause,  and 
it  conies  within  the  letter  and  spirit  of  the  section  referred  to. 

The  one  file  is  not  the  property  or  record  of  the  appellant.  It  is  a 
public  record,  over  which  he  has  no  control.  He  may  have  a  copy 
of  it,  in  order  that  he  may  prepare  his  appeal  for  hearing,  and  if  he 
succeeds  in  reversing  the  judgment  appealed  from,  the  expense 
legally  incurred  in  obtaining  said  copy  may  be  taxed  as  costs  in  his 
favor.  The  costs  of  no  more  than  one  copy  can  be  taxed,  however 
numerous  the  appellants  may  be. 

The  motion  to  correct  the  taxation  of  costs  in  this  case  is  over- 
ruled. 

L.  D.  Husband,  A.  Duvall,  for  appellants. 
/.  W.  Bloomfield,  for  appellees. 


James  S.  Jacoby  v.  James  G.  Neal,  et  al. 

Highways— Viewer's  Reports — Description  of  Route. 

The  viewer's  report  upon  which  a  new  highway  is  ordered  opened 
must  contain  a  description  of  the  road  by  courses  and  distances  and 
to  comply  with  this  rule  the  points  of  its  commencement  and  termi- 
nation should  be  fixed  by  some  visible  objects  sufflcient  to  determine 
their  exact  locality. 


646  Kentucky  Opinions. 

judgment  to  go  enforcing  that  lien,  he  was  precluded  before  he  was 
adjudged  a  bankrupt  from  disputing  the  validity  of  the  lien. 

We  do  not,  therefore,  deem  it  necessary  to  decide  whether  the 
commissioner's  deed,  if  taken  alone,  gave  an  enforcible  lien  or  not, 
unless  notwithstanding  Sanders  was  unable  to  controvert  it,  his  as- 
signees in  bankruptcy  may  do  so.  We  concur  with  the  counsel  for 
the  appellants  that  an  assignee  in  bankruptcy  is  not  like  an  ordinary 
assignee  who  takes  any  such  rights  as  his  assignor  had,  but  he  also 
represents  the  creditors  of  the  bankrupt,  and  is  entitled  to  enforce 
all  their  equities.  Shackleford,  Assignee,  et  al.,  i\  Collier,  et  at.,  6 
Bush  149.  As  a  result  of  this  doctrine  an  assignee  in  bankruptcy  is 
invested  with  all  the  rights,  legal  and  equitable,  which  the  bankrupt 
or  any  creditor  of  his  had  at  the  date  of  adjudication  whereby 
either  could  have  secured  assets  to  the  bankrupt  or  for  the  payment 
of  the  creditor,  and  he  is  also  vested  with  a  right  to  recover  any 
money  or  effects  parted  with  by  the  bankrupt  in  violation  of  the  bank- 
rupt law,  although  no  creditor  could  have  reached  it.  This  we  think 
is  the  extent  of  the  rights  of  an  assignee  in  bankruptcy. 

It  does  not  appear  in  this  record  that  any  creditor  of  Sanders  could, 
at  the  date  when  he  was  adjudged  a  bankrupt,  have  impeached 
Duvairs  judgment.  It  is  not  claimed  that  his  debt  was  Hot  just,  or 
that  the  judgment  was  procured  by  fraud,  or  that  it  was  even  in- 
equitable. What  equity,  then,  had  any  of  Sanders's  creditors  to  have 
the  sale  set  aside  and  the  judgment  for  a  sale  enjoined?  The  insol- 
vency of  Sanders  gave  them  no  such  equity,  unless  the  judgment  came 
within  the  provisions  of  the  act  of  1856,  and  if  they  had  such  right, 
which  does  not  appear,  it  has  not  been  set  up  or  relied  upon.  It  is 
not  alleged,  nor  does  it  appear  that  the  judgment  was  in  contraven- 
tion of  the  bankrupt  act.  The  suit  was  commenced  and  judgment  ob- 
tained, enforcing  an  alleged  lien  September  6,  1873,  and  Sanders 
was  adjudged  a  bankrupt  January  22,  1874,  more  than  four  months 
thereafter. 

It  seems,  therefore,  that  the  lien,  if  it  had  no  existence  prior  to 
the  judgment,  was  valid  against  the  assignee  and  that  he  has  failed 
to  show  in  any  aspect  of  the  case  that  he  has  a  right  to  have  the  sale 
set  aside. 

The  only  objection  that  could  have  existed  to  the  title  derived 
under  the  judgment  in  favor  of  Duvall  would  have  arisen  from  the 
mortgage  to  Kinkade  &  Wise,  and  as  that  appears  to  be  satisfied, 
and  they  were  the  purchasers  and  can  acquire  a  complete  and  valid 


Abe  Boyd,  et  al.,  v.  C.  H.  Adams,  et  al.  647 

title  by  a  deed  from  a  commissioner,  the  judgment  is  affirmed  as  to 
all  the  appellants. 

Caldwell  &  Harwood,  for  appellants. 
W,  C.  Bullock,  for  appellee. 


Abe  Boyd,  et  al.,  v.  C.  H.  Adams,  et  al. 

Costs — Taxation  by  Clerk  of  Court  of  Appeals. 

The  clerk  of  the  court  of  appeals,  like  the  clerks  of  other  courts, 
is  authorized  to  tax  as  costs  one  copy  of  any  pleadings  or  exhibits  ob- 
tained by  the  successful  party. 

APPEAL  FROM  McCRACKBN  CIRCUIT  COURT. 

March  24,  1876. 

Opinion  by  Judge  Lindsay: 

Section  32,  chap.  26,  General  Statutes,  authorizes  clerks  to  tax  as 
costs  "one  copy  of  any  pleadings  or  exhibits  obtained  by  the  success- 
ful party  or  parties."  This  provision  applies  to  all  clerks,  and  must, 
therefore,  include  the  clerk  of  this  court.  Copy  of  the  record  on  file 
is  substantially  a  copy  of  the  pleadings  and  exhibits  in  the  cause,  and 
it  comes  within  the  letter  and  spirit  of  the  section  referred  to. 

The  one  file  is  not  the  property  or  record  of  the  appellant.  It  is  a 
public  record,  over  which  he  has  no  control.  He  may  have  a  copy 
of  it,  in  order  that  he  may  prepare  his  appeal  for  hearing,  and  if  he 
succeeds  in  reversing  the  judgment  appealed  from,  the  expense 
legally  incurred  in  obtaining  said  copy  may  be  taxed  as  costs  in  his 
favor.  The  costs  of  no  more  than  one  copy  can  be  taxed,  however 
numerous  the  appellants  may  be. 

The  motion  to  correct  the  taxation  of  costs  in  this  case  is  over- 
ruled. 

L.  D.  Husband,  A,  Duvall,  for  appellants. 
J.  W.  BloomHeld,  for  appellees. 


James  S.  Jacoby  v.  James  G.  Neal,  et  al. 

Highways'— Viewer's  Reports — Description  of  Route. 

The  viewer's  report  upon  which  a  new  highway  Is  ordered  opened 
must  contain  a  description  of  the  road  by  courses  and  distances  and 
to  comply  with  this  rule  the  points  of  Its  commencement  and  termi- 
nation should  be  fixed  by  some  visible  objects  sufAclent  to  determine 
their  exact  locality. 


646  Kentucky  Opinions. 

judgment  to  go  enforcing  that  lien,  he  was  precluded  before  he  was 
adjudged  a  bankrupt  from  disputing  the  validity  of  the  lien. 

We  do  not,  therefore,  deem  it  n-ecessary  to  decide  whether  the 
commissioner's  deed,  if  taken  alone,  gave  an  enforcible  lien  or  not, 
unless  notwithstanding  Sanders  was  unable  to  controvert  it,  his  as- 
signees in  bankruptcy  may  do  so.  We  concur  with  the  counsel  for 
the  appellants  that  an  assignee  in  bankruptcy  is  not  like  an  ordinary 
assignee  who  takes  any  such  rights  as  his  assignor  had,  but  he  also 
represents  the  creditors  of  the  bankrupt,  and  is  entitled  to  enforce 
all  their  equities.  Shackleford,  Assignee,  et  ai,  v.  Collier,  et  al.,  6 
Bush  149.  As  a  result  of  this  doctrine  an  assignee  in  bankruptcy  is 
invested  with  all  tlie  rights,  legal  and  equitable,  which  the  bankrupt 
or  any  creditor  of  his  had  at  the  date  of  adjudication  whereby 
either  could  have  secured  assets  to  the  bankrupt  or  for  the  payment 
of  the  creditor,  and  he  is  also  vested  with  a  right  to  recover  any 
money  or  effects  parted  with  by  the  bankrupt  in  violation  of  the  bank- 
rupt law,  although  no  creditor  could  have  reached  it.  This  we  think 
is  the  extent  of  the  rights  of  an  assignee  in  bankruptcy. 

It  does  not  appear  in  this  record  that  any  creditor  of  Sanders  could, 
at  the  date  when  he  was  adjudged  a  bankrupt,  have  impeached 
Duvairs  judgment.  It  is  not  claimed  that  his  debt  was  riot  just,  or 
that  the  judgment  was  procured  by  fraud,  or  that  it  was  even  in- 
equitable. What  equity,  then,  had  any  of  Sanders's  creditors  to  have 
the  sale  set  aside  and  the  judgment  for  a  sale  enjoined?  The  insol- 
vency of  Sanders  gave  them  no  such  equity,  unless  the  judgment  came 
within  the  provisions  of  the  act  of  1856,  and  if  they  had  such  right, 
which  does  not  appear,  it  has  not  been  set  up  or  relied  upon.  It  is 
not  alleged,  nor  does  it  appear  that  the  judgment  was  in  contraven- 
tion of  the  bankrupt  act.  The  suit  was  commenced  and  judgment  ob- 
tained, enforcing  an  alleged  lien  September  6,  1873,  and  Sanders 
was  adjudged  a  bankrupt  January  22,  1874,  more  than  four  months 
thereafter. 

It  seems,  therefore,  that  the  lien,  if  it  had  no  existence  prior  to 
the  judgment,  was  valid  against  the  assignee  and  that  he  has  failed 
to  show  in  any  aspect  of  the  case  that  he  has  a  right  to  have  the  sale 
set  aside. 

The  only  objection  that  could  have  existed  to  the  title  derived 
under  the  judgment  in  favor  of  Duvall  would  have  arisen  from  the 
mortgage  to  Kinkade  &  Wise,  and  as  that  appears  to  be  satisfied, 
and  they  were  the  purchasers  and  can  acquire  a  complete  and  valid 


Abe  Boyd,  et  al.,  v,  C.  H.  Adams,  et  al.  647 

title  by  a  deed  from  a  commissioner,  the  judgment  is  affirmed  as  to 
all  the  appellants. 

Caldwell  &  Harwood,  for  appellants. 
W.  C,  Bullock,  for  appellee. 


Abe  Boyd,  et  al.,  v.  C.  H.  Adams^  et  al. 

Costs— Taxation  by  Clerk  of  Court  of  Appeals. 

The  clerk  of  the  court  of  appeals,  like  the  clerks  of  other  courts, 
is  authorized  to  tax  as  costs  one  copy  of  any  pleadings  or  exhibits  ob- 
tained by  the  successful  party. 

APPEAL  FROM  MoCRACKBN  CIRCUIT  COURT. 

March  24,  1876. 

Opinion  by  Judge  Lindsay  : 

Section  32,  chap.  26,  General  Statutes,  authorizes  clerks  to  tax  as 
costs  "one  copy  of  any  pleadings  or  exhibits  obtained  by  the  success- 
ful party  or  parties."  This  provision  applies  to  all  clerks,  and  must, 
therefore,  include  the  clerk  of  this  court.  Copy  of  the  record  on  file 
is  substantially  a  copy  of  the  pleadings  and  exhibits  in  the  cause,  and 
it  comes  within  the  letter  and  spirit  of  the  section  referred  to. 

The  one  file  is  not  the  property  or  record  of  the  appellant.  It  is  a 
public  record,  over  which  he  has  no  control.  He  may  have  a  copy 
of  it,  in  order  that  he  may  prepare  his  appeal  for  hearing,  and  if  he 
succeeds  in  reversing  the  judgment  appealed  from,  the  expense 
legally  incurred  in  obtaining  said  copy  may  be  taxed  as  costs  in  his 
favor.  The  costs  of  no  more  than  one  copy  can  be  taxed,  however 
numerous  the  appellants  may  be. 

The  motion  to  correct  the  taxation  of  costs  in  this  case  is  over- 
ruled. 

L.  D.  Husband,  A.  Duvall,  for  appellants. 
J.  W.  BloomHeld,  for  appellees. 


James  S.  Jacoby  v.  James  G.  Neal,  et  al. 

Highways-— Viewer's  Reports— Description  of  Route. 

The  viewer's  report  upon  which  a  new  highway  is  ordered  opened 
must  contain  a  description  of  the  road  by  courses  and  distances  and 
to  comply  with  this  rule  the  points  of  its  commencement  and  termi- 
nation should  be  fixed  by  some  visible  objects  sufllcient  to  determine 
their  exact  locality. 


656  Kentucky  Opinions. 

APPEAL  FROM  HARDIN  CIRCUIT  COURT. 

March  27,  1876. 

Opinion  by  Judge  Lindsay: 

Although  the  petition  shows  that  at  the  time  of  the  last  settlement 
there  remained  in  the  hands  of  the  sheriffs,  in  the  way  of  a  surplus 
of  county  dues,  the  sum  of  $1,590.63,  it  does  not  show  that  up  to 
the  time  of  the  institution  of  this  action,  the  county  court  had  au- 
thorized or  empowered  any  person  to  collect  said  sum  from  the 
sheriff,  or  that  it  had  made  any  orders  whatever  concerning  its  safe- 
keeping. Until  some  such  order  is  made,  and  the  sheriff  is  required 
to  pay  the  money  over,  either  to  the  county  treasurer,  or  if  there 
be  none,  then  to  some  person  designated  by  the  county  court,  he 
cannot  commit  a  breach  of  his  bond.  Until  some  person  is  author- 
ized to  collect  the  fund,  there  can  be  no  demand  made  upon  the 
sheriff ;  and  until  there  is  a  demand  and  a  failure  to  pay,  no  cause 
of  action  can  arise  against  him  and  his  official  sureties.  Owen  v. 
Ballard  County  Court,  8  Bush  611. 

There  is  no  cause  of  action  stated  in  favor  of  Davenport.  He  sues 
as  the  assignee  of  Tabb.    It  is  alleged  that  Tabb  is  a  county  creditor 

to  the  amount  of  $ .   But  it  is  not  stated  that  this  claim,  if  it 

amounted  to  any  sum  whatever,  had  been  allowed  by  the  county 
court,  nor  that  the  sheriff  had  ever  been  directed  to  pay  it. 

The  demurrer  was  properly  sustained,  and  the  petition  properly 
dismissed.  Judge  Coicr  did  not  sit  in  this  case. 

Judgment  affirmed. 

Wilson  &  Belly  for  appellants,  James  Montgomery,  for  appellees. 


John  Flynn  z\  Patrick  Carroll,  et  al. 

Real  Estate — Adverse  Possession — Husband  and  Wife. 

A  person  having  entered  into  possession  of  real  estate  by  virtue  of 
his  wife's  title  cannot  assert  adverse  possession  as  against  his  wife  or 
her  heirs. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

March  29,  1876. 

Opinion  by  Judge  Pryor: 

The  mere  assertion  of  claim  by  the  party  in  possession  that  he 


Barnai^d  Kimbley,  et  al.,  V,  S.  A.  Jackson.  657 

is  the  owner  of  the  property  does  not  constitute  an  adverse  holding. 
It  is  evident  from  Koran's  own  showing  that  he  entered  upon  the 
property  by  reason  of  his  marital  relation,  and  held  under  the  wife's 
title.  What  the  character  of  proof  was  in  the  original  action  by  the 
appellees  against  Horan  does  not  appear,  but  the  latter's  answer  indi- 
cates that  he  was  without  right  or  title,  and  might  as  well  have  al- 
leged in  order  to  create  an  adverse  holding  that  the  property  de- 
scended to  him  and  not  to  the  children.  Having  entered  by  virtue 
of  his  wife's  title  and  the  property  descending  to  the  children,  he 
must  be  considered  as  their  tenant,  and  the  appellant  (his  tenant)  is 
liable  for  the  rent,  and  particularly  as  the  action  to  recover  the  prop- 
erty was  pending  when  h€  entered,  actual  notice  having  been  given 
him  of  appellees'  claim.  If  the  husband  had  leased  this  property 
in  his  own  name,  during  the  life  of  the  wife,  the  tenant,  if  the  hus- 
band had  died  and  not  the  wife,  could  not  have  defeated  the  wife's 
claim  for  rent,  in  the  event  he  held  over,  by  reason  of  tlie  alleged 
parol  agreement  relied  on  by  the  husband  in  his  answer.  If  alleged 
in  the  answer  that  the  husband,  by  a  parol  gift  from  the  wife,  had 
acquired  the  title,  it  could  not  be  regarded  as  an  adverse  holding; 
nor  are  we  inclined  to  the  opinion  that  the  answer  filed  constituted 
anything  more  than  this  character  of  defense.  Th^  original  case,  no 
doubt,  was  disposed  of  on  the  idea  that  the  husband  entered  under 
the  deed  to  the  wife  and  claimed  only  by  reason  of  his  marital  rights, 
and  that  at  her  death  no  such  claim  as  that  asserted  in  the  answer 
could  be  regarded  as  vesting  him  with  title  or  as  an  adverse  holding. 
The  husband  alleges  that  he  bought  the  lot,  and  the  wife  agreed  to 
have  it  conveyed  to  him.  The  proof,  no  doubt,  showed  that  he  held 
under  the  wife.  His  holding  was  not  adverse  to  the  appellees,  and 
the  instructions  given  were  proper.  As  the  law  of  the  case  is  with  the 
appellees  on  the  merits,  it  is  unnecessary  to  determine  whether  or 
not  the  bill  of  evidence  shows  that  all  the  instructions  are  contained 
in  it. 
Judgment  affirmed. 

R.  A,  Thornton,  for  appellant.  Morton  &  Parker,  for  appellees. 


Barnard  Kimbley,  et  al.,  v.  S.  A.  Jackson. 

Sale  of  Personal  Property — Lien  of  Purchaser  for  Advancements— No- 
tice—Practice. 

One  who  advances  money  on  a  contract  to  purchase  personal  prop- 
erty is  entitled  to  a  lien  on  such  property  as  against  the  vendor  or 
others  purchasing  such  property  with  notice  of  such  advancement. 

42 


658  Kentucky  Opinions. 

Practice^Motion  for  New  Trial. 

To  aver,  in  a  motion  for  a  now  trial,  that  the  judgment  is  against 
the  Law,  is  not  sufficient  to  call  in  question  the  correctness  of  instruc- 
tions. 

APPEAL  FROM  OHIO  CIRCUIT  COURT. 

March  31,  1876. 

Opinion  by  Judge  Cofer: 

The  appellee  alleged  that  he  purchased  the  tobacco  of  Smith  and 
Davis,  and  subsequently  the  appellants  purchased  of  them  the  same 
tobacco;  that  hearing  of  their  purchase  h^  immediately,  and  before 
they  had  paid  any  part  of  the  purchase  money,  gave  them  notice  of 
his  purchase  and  of  the  amount  he  had  advanced  upon  it ;  and  that 
they,  after  being  notified,  received  the  tobacco  and  refused  to  re- 
fund to  him  the  amount  he  had  paid. 

It  is  not  material  to  decide  whether  the  title  passed  to  the  appellee 
or  not ;  he  had,  as  against  his  vendors,  a  lien  on  the  tobacco  for  his 
advances  made  on  the  faith  of  his  purchase,  and  appellants  having 
received  notice  of  the  lien  before  they  had  paid  the  purchase  money, 
were  bound  by  the  lien  and  were  properly  adjudged  to  answer  for  it. 

They  are  not  in  a  position  to  claim  protection  as  innocent  pur- 
chasers. Although  it  was  irregular  to  instruct  the  jury  to  find  for 
the  plaintiff,  the  appellants  are  not  entitled  to  a  reversal.  Their 
grounds  for  a  new  trial  do  not  question  the  correctness  of  the  in- 
struction of  the  court.  They  specified  but  two  grounds  for  a  new 
trial :  ist,  that  the  judgment  is  against  the  law,  and  is  not  sustained 
by  the  evidence ;  2nd,  that  their  witness  was  detained  by  rain  and  did 
not  reach  the  court  until  the  trial  was  completed. 

The  first  ground  relied  upon  only  raises  the  question  whether  the 
judgment  is  sustained  by  the  evidence.  The  evidence  was  clearly 
sufficient.  "That  the  judgment  is  against  the  law"  is  not  sufficient 
to  call  in  question  the  correctness  of  instructions.  Grounds  for  a 
new  trial  should  indicate  the  error  complained  of  so  as  to  call  it  to 
the  attention  of  the  court.  But  it  is  impossible  from  the  grounds 
filed  to  discover  what  particular  error  is  complained  of.  That  the 
judgment  is  against  the  law  may  more  properly  be  regarded  as  in- 
tended to  question  the  sufficiency  of  the  petition  than  the  correct- 
ness of  instructions. 

The  second  ground  is  insufficient.  The  appellants  must  have 
known  before  the  trial  was  commenced  that  their  witness  was  ab- 


Thomas  Montague  v,  Silas  Wolveston.  659 

sent,  and  should  have  moved  for  a  continuance  or  postponement  un- 
til they  could  have  him  present.   This  they  did  not  do.   They  went 
into  trial  without  objection  and  cannot  have  a  new  trial  on  the 
ground  that  they  were  not  ready. 
Judgment  affirmed. 

Walker  &  Hubbard,  for  appellants, 
McHenry  &  Hill,  for  appellee. 


Thomas  Montague  v.  Silas  Wolveston. 
Thomas  Foreman  v.  Grinstead  &  Bradley,  et  al. 

Judicial  Sale— Bidders — Competition. 

A  Judicial  sale  of  real  estate  will  aot  be  set  aside  because  of  an 
agreement  between  two  or  more  persons  to  unite  in  the  purchase, 
unless  It  is  shown  that  such  agreement  was  entered  into  with  the 
fraudulent  Intention  to  stifle  bidding  and  thereby  obtain  the  property 
at  a  sacrifice. 

Ground  for  Setting  Aside  Sale. 

The  fact  that  after  a  Judicial  sale  has  been  made,  one  may  offer  to 
bid  a  higher  price  if  the  property  be  again  offered,  furnishes  no 
ground  for  setting  aside  the  sale  made. 

APPEAL,  FROM  FAYETTE  CIRCUIT  COURT. 

April  4,  1876. 

Opinion  by  Judge  Cofer: 

To  decide  that  the  agreement  between  Wolveston  and  Brown  to 
buy  the  livery  stable  property  and  divide  it  between  them  vitiated 
the  sale,  would  be  virtually  to  decide  that  any  agreement  between 
two  or  more  persons  to  unite  in  the  purchase  of  property  at  a  ju- 
dicial sale  is  unlawful.  Such  agreements  are  common,  and  unless 
entered  into  with  the  fraudulent  intention  to  stifle  bidding  and 
thereby  to  obtain,  property  at  a  sacrifice,  are  not  unlawful. 

Neither  Wolveston  nor  Brown  was  under  any  obligation  to  bid 
at  all,  and  there  is  nothing  in  this  record  to  show  that  either  would 
have  done  so  without  the  agreement  made  between  them.  Such 
agreements,  if  made  bona  fide,  so  far  from  being  calculated  to  cause 
the  sacrifice  of  property  have  an  exactly  opposite  tendency. 

Persons  either  unable  or  unwilling  to  buy  the  whole  property  of- 
fered for  sale  may,  by  combining,  increase  rather  than  diminish  com- 


66o  Kentucky  Opinions. 

petition.  For  ought  that  appears  in  this  record  such  may  have  been 
the  case  in  this  instance.  The  statement  of  Brown  that  the  property 
was  worth  $8,000  and  he  would  be  a  bidder  if  made,  placed  him  un- 
der no  obligation  to  become  a  bidder,  and  it  does  not  appear  that  the 
action  of  any  other  person  was  in  anywise  influenced  by  such  state- 
ment. There  is  nothing  to  show  that  Wolveston  would  have  been  a 
bidder  or  that  he  was  under  any  obligation  to  become  one.  There 
is,  therefore,  nothing  to  show  that  either  Wolveston  or  Brown 
would  have  bid  at  all  but  for  the  arrangement  by  which  they  became 
jointly  interested  in  the  purchase. 

The  price  realized  for  the  stable  property  was,  at  the  least  two- 
thirds  of  its  value,  and  the  court,  in  the  absence  of  evidence  of  fraud 
or  unfairness,  would  not  have  been  warranted  in  setting  aside  the 
sale.  Although  no  one  would  at  first  offer  to  take  less  than  the 
whole  tract  of  land,  and  pay  the  balance  of  the  judgments  not  satis- 
fied by  the  sale  of  the  stable  property,  yet,  after  a  bidder  had  of- 
fered to  take  the  whole  tract  and  pay  that  sum,  it  was  the  duty  of 
the  commissioner  to  again  inquire  whether  any  one  would  take  a 
less  quantity  and  pay  the  debt,  and  until  he  did  so  he  had  no  author- 
ity to  call  for  advances  in  the  amotmt.  The  first  offer  should  have 
been  "Who  will  take  the  tract  and  pay  the  balance  of  the  judg- 
ments ?"  and  when  a  bidder  was  found  willing  to  do  that,  then  and 
not  until  then,  inquiry  should  have  been  made  to  ascertain  whether 
any  one  would  pay  the  balance  for  less  than  the  whole.  The  commis- 
sioner already  had  no  authority  to  sell  for  more  money  than  would 
pay  what  remained  unsatisfied  until  he  had  ascertained  that  no  one 
would  bid  that  amount  for  less  than  tlie  whole  tract. 

The  offer  to  give  an  advance  of  $1,500  on  the  price  for  which  the 
stable  property  sold  did  not  authorize  the  court  to  set  aside  the  sale. 
Stump  V,  Martin,  9  Bush  285.  While  such  a  cause  would  undoubt- 
edly benefit  the  debtor  in  this  instance,  the  precedent  it  would  es- 
tablish would  as  undoubtedly  operate  to  the  prejudice  of  debtors 
whose  property  was  thereafter  offered  for  sale.  One  of  the  surest 
guaranties  for  fair  prices  is  to  be  found  in  stability  in  such  sales. 
We  perceive  no  error  in  either  judgment,  and  both  are  afHrmed. 

Kinkead  &  Duvall,  for  Montague. 

Z,  Gibbon,  for  Foreman. 

W.  D.  Boswell,  for  Wolveston. 


Agnes  Edwards,  Ex'x,  v.  William  S.  Edwards,  et  al.    66i 

Agnes  Edwards,  Ex'x,  v.  William  S.  Edwards,  et  al. 

Decedent's  Estates — Diligence  of  Executor. 

An  executor  is  not  held  to  the  exercise  of  more  than  ordinary  dili- 
gence in  securing  the  debts  due  the  testator,  and  diligence  does  not 
require  him  to  sue  upon  claims  at  the  first  term  of  court  after  he 
qualifies. 

Liability  of  Executor  for  Failing  to  Collect. 

If  there  is  unreasonable  delay  by  an  executor  in  attempting  to 
make  a  collection^  and  by  reason  of  such  delay  the  estate  lost  by  it 
an  executor  is  liable. 

APPEAL  FROM  GREEN  CIRCUIT  COURT. 

April  4,  1876. 

Opinion  by  Judge  Pryor: 

It  is  evident  from  the  proof  in  the  cause  that  the  money  for  which 
the  notes  of  J.  C.  Edwards  were  executed  constituted  a  part  of  the 
fund  received  from  Underwood;  and  the  executor  having  charged 
himself  with  the  whole  of  that  fund,  it  would  have  been  erroneous 
to  have  added  to  it  the  amount  of  the  notes,  as  insisted  should  have 
been  done  by  the  appellees.  The  only  question  of  importance  pre- 
sented in  the  case  is  as  to  the  liability  of  the  executor  for  failing  to 
institute  an  action  upon  these  notes  at  the  first  term  of  the  court 
held  after  the  notes  came  into  his  possession.  There  can  be  no  doubt 
but  that  he  had  ample  time  to  have  brought  his  action  and  recovered 
a  judgment,  and  if  he  is  held  to  the  same  degree  of  diligence  that  is 
required  of  an  assignee  of  a  note,  the  liability  exists. 

The  embarrassed  condition  of  the  obligor  was  known  to  the  execu- 
tor and  also  to  the  mother  at  the  time  the  money,  or  part  of  it,  was 
loaned ;  and  for  this  reason  the  executor  seems  to  have  feared  that 
such  steps  on  his  part  as  the  attempt  to  coerce  the  money  by  suit 
would  result  in  the  institution  of  actions  against  the  debtor  by  his 
other  creditors,  and  lessen  the  chances  for  making  the  debts  due  the 
estate.  His  brother  had  promised  him  to  discharge  the  notes  so  soon 
as  the  result  of  a  mule  adventure  was  made  known,  and  relying 
upon  this  as  one  of  the  modes  of  recovering  his  debts,  he  thought 
best  not  to  sue.  An  executor  is  not  held  to  the  exercise  of  anything 
more  than  ordinary  diligence  in  securing  the  debts  due  to  the  testator, 
such  diligence  as  an  ordinarily  prudent  man  would  use  with  refer- 
ence to  his  own  affairs. 

This  sort  of  diligence^  we  think,  has  been  shown  in  this  case.    It 


662  Kentucky  Opinions. 

was  only  seven  months  from  the  time  the  appellant  qualified  as  execu- 
tor until  the  debtor  made  an  assignment  of  his  property  for  the 
benefit  of  all  of  his  creditors.  He  was  insolvent  at  the  time  the 
executor  qualified,  and  the  latter  holding  debts  of  his  own  against 
his  brother,  and  the  other  creditors  who  are  presumed  to  have  exer- 
cised some  diligence  in  the  collection  of  their  own  debts,  failed  to 
institute  any  legal  proceedings  to  make  their  money.  It  is  no  lack 
of  diligence  in  failing  to  sue  upon  claims  held  by  him  as  such  at  the 
first  court  succeeding  his  qualification.  A  state  of  case  might  exist 
where  the  representative  was  in  the  possession  of  such  facts  that  one 
of  ordinary  caution  would  know  the  debt  would  be  lost  unless  some 
step  was  taken  to  secure  it.  A  failure  then  to  take  the  proper  steps 
to  make  the  debt  would  render  him  liable.  The  executor  might  have 
obtained  a  lien  by  issuing  an  execution  on  a  judgment  obtained  at 
the  first  term  of  the  court  in  the  present  case ;  but  this  degree  of  dili- 
gence is  not  required  of  him  unless  he  is  in  the  possession  of  facts 
showing  that  his  debts  would  be  lost  unless  such  a  remedy  is  pursued. 

The  fact  of  his  brother  being  insolvent  was  no  reason  why  he 
should  have  made  the  effort  to  be  in  advance  of  other  creditors.  In 
the  exercise  of  his  judgment  he  thought  he  could  best  secure  the 
debt  by  looking  to  the  promises  of  his  brother.  Nor  has  the  estate 
been  damaged  by  this  action  on  the  part  of  the  executor.  The  debtor 
was  as  much  indebted  when  the  executor  qualified  as  when  he  made 
the  assignment ;  and  not  only  so,  but  the  character  and  value  of  his 
estate  had  not  been  changed.  The  fact  that  the  wife  of  the  debtor 
had  a  part  of  the  land  conveyed  to  her  in  lieu  of  her  contingent  riglit 
of  dower,  did  not  affect  the  rights  of  creditors  so  far  as  appears  from 
the  record;  but  for  the  relinquishment,  the  estate  would  have  sold 
for  less  and  thus  reduced  the  amount  to  which  the  creditors  were 
entitled.  An  unreasonable  delay  in  the  attempt  to  coerce  a  debt  by 
an  executor  by  reason  of  which  the  estate  lost  it,  would  make  the 
executor  liable ;  but  in  this  case  we  see  nothing  in  the  cause  presented 
by  the  executor  showing  a  disregard  of  the  interests  of  the  estate,  or 
that  might  not  have  been  adopted  by  a  prudent  man  in  the  conduct 
of  his  own  business. 

The  expenditure  of  the  seventy-one  dollars  was  made  at  the  in- 
stance of  the  mother,  and  should  have  been  charged  to  the  estate. 
It  was  also  error  on  the  part  of  the  court  below,  when  directing  a 
distribution  of  the  estate  according  to  the  provisions  of  the  will,  to 
leave  the  question  undetermined  as  to  what  the  rights  of  the  de- 
vices were,  namely  the  amount  due  from  the  executor,  if  anything, 


R.  Y.  Daniel  v,  J.  W.  Steerman.  663 

to  each  of  the  devisees  50  as  the  devisee  so  entitled  might  have  his 
execution.  This,  of  course,  applies  only  to  those  of  the  devisees  who 
are  asking  a  judgment  or  distribution.  The  executor  should  not  have 
been  charged  with  the  notes  on  J.  C.  Edwards,  or  having  been 
charged  with  them  in  his  original  inventory,  should  have  been  cred- 
ited by  them.  He  is  only  liable  so  far  as  these  notes  are  concerned 
for  what  he  collected  on  them.  This  is  the  only  error  we  perceive 
in  the  record  except  the  failure  to  ascertain  what  each  devisee  was 
entitled  to,  and  how  much  had  been  paid  them,  etc.  Judgment  re- 
versed  and  same  remanded  for  a  judgment  consistent  with  this 
opinion. 

Affirmed  on  cross-appeal. 

W,  H.  Chelf,  A,  J.  James,  for  appellant. 

Towles  &  Hudson,  Alexander  &  Dickinson,  for  appellees. 


R.  Y.  Daniel  v.  J.  W.  Steerman. 

Sale  of  Personal  Property — Contract — Delivery. 

Although  a  contract  for  the  sale  of  goods  Is  complete  and  binding 
in  other  respects,  the  title  remains  in  the  vendor  if  any  material  act 
remains  to  be  done  before  delivery  to  distinguish  the  goods  sold  or 
to  ascertain  the  price  or  to  fit  them  for  delivery,  unless  what  remains 
to  be  done  devolves  upon  the  purchaser  and  the  possession  is  given 
him  either  actually  or  constructively. 

APPEAL  FROM  OHIO  CIRCUIT  COURT. 

April  5;  1876. 

Opinion  by  Judge  Cofer: 

Under  the  provisions  of  the  contract  between  the  appellant  and  ap- 
pellee, the  title  to  the  tobacco  in  contest  remained  in  the  latter.  Al- 
though a  contract  for  the  sale  of  goods  be  completed  and  binding 
in  other  respects,  the  title  remains  in  the  vendor,  and  the  goods  at 
his  risk,  if  any  material  act  remains  to  be  done  before  delivery  to  dis- 
tinguish the  goods  sold,  or  to  ascertain  the  price,  or  to  fit  them  for 
delivery,  unless  what  remains  to  be  done  is  to  be  done  by  the  pur- 
chaser, and  the  possession  is  delivered  to  him  either  actually  or  con- 
structively. 

The  tobacco  in  contest  was  not  delivered,  nor  was  it  ready  for  de- 
livery, and  1;he  price  was  not  ascertained.  The  tobacco  was  to  be  as- 


664  Kentucky  Opinions. 

sorted,  tied  up  into  hands,  and  delivered  by  the  vendor;  and  until 
these  things  were  done  the  title  remained  in  him. 

The  appellant's  remedy  was  by  action  for  a  breach  of  the  contract, 
and  not  for  the  recovery  of  the  tobacco.  The  court,  therefore,  prop- 
erly instructed  the  jury  to  find  for  the  defendant.  Nor  was  there 
any  error  in  afterward  allowing  the  defendant  to  introduce  evidence 
as  to  the  value  of  the  tobacco  which  had  been  taken  possession  of 
by  the  appellant,  or  in  the  assessment  of  the  value  by  the  jury. 

Judgment  affirmed. 

McHenry  &  Hill,  for  appellant. 
Walker  &  Hubbard,  for  appellee. 


S.  M.  Hewitt  v.  J.  H.  Rich  art. 

Vendor's  Liens — Pleading. 

When  purchase-money  remains  unpaid  at  the  time  land  is  conveyed 
the  grantor  has  no  lien  on  the  land  unless  it  is  stated  in  the  deed 
what  part  of  the  purchase-money  remains  unpaid. 

Pleading. 

A  petition  to  enforce  a  vendor's  lien  on  real  estate  is  fatally  de- 
fective which  alleges  only  that  a  lien  exists  in  plaintiff's  favor.  This 
Is  a  mere  conclusion. 

APPEAL,  FROM  BATH  CIRCUIT  COURT. 

April  5,  1876. 

Opinion  by  Judge  Lindsay  : 

No  personal  judgment  was  rendered  against  Mrs.  Sarah  M.  Hew- 
itt, but  her  land  was  adjudged  to  be  sold  to  satisfy  the  amount  ap- 
parently due  on  the  note  sued  on,  including  interest  at  the  rate  of 
ten  per  cent,  per  annum. 

It  is  averred  in  the  petition  that  John  D.  Young,  the  vendor  of  the 
land,  had  conveyed  to  Mrs.  Hewitt.  The  petition  does  not  state  facts 
showing  that  the  appellee  holds  a  lien  upon  the  land  to  secure  the 
payment  of  the  note.  The  only  averment  on  the  subject  is,  "Plain- 
tiff states  that  a  lien  exists  in  his  favor  on  said  forty  acres,  2  roods 
and  30  poles  of  land  for  his  debt  with  interest  thereon,  etc."  This 
is  but  the  averment  of  a  legal  conclusion. 

When  the  deed  from  Young  to  Mrs.  Hewitt  was  executed  and  de- 
livered the  Revised  Statutes  were  in  force.    Sec.  26,  Chap.  80,  Rev, 


William  Davenport  v.  James  Underwood,  et  al.         665 

Stat.,  provided,  when  purchase  money  remained  unpaid  on  land  at 
the  time  a  conveyance  was  made,  the  grantor  should  not  have  a  lien 
for  the  same  unless  it  was  expressly  stated  in  the  deed  what  part  of 
the  consideration  remained  unpaid;  and  this  limitation  upon  the 
rights  of  the  vendor  was  held  in  various  cases  to  operate  as  well  in 
favor  of  the  vendee  as  of  creditors  and  purchasers. 

The  petition  does  not  show  that  it  is  stated  in  the  deed  to  Mrs. 
Hewitt  that  the  sum  evidenced  by  the  note  sued  on  remained  unpaid, 
at  the  time  of  its  execution.  The  deed  is  referred  to  as  being  of  rec- 
ord in  the  proper  office  in  Bath  county,  but  a  copy  is  not  filed  in  the 
cause.  It  is  impossible,  therefore,  from  appellee's  petition  and  ex- 
hibits, to  determine  that  the  legal  conclusion  averred  by  him  is 
correct.  It  is  true  the  note  states  that  it  is  "mentioned  in  the  deed 
already  delivered."  This  recital  might  be  sufficient  evidence  to  sus- 
tain the  necessary  allegations  if  it  had  been  made  in  the  petition,  but 
in  the  absence  of  such  allegations  and  of  the  deed  itself,  it  is  not  suf- 
ficient to  authorize  the  sale  of  the  appellant's  lands. 

Judgment  reversed.  Upon  the  return  of  the  cause,  appellant  will 
be  allowed  to  answer  and  make  defense. 

S.  D,  Lacy,  for  appellant,    /.  S.  Hunt,  for  appellee. 


WiLLL\M  Davenport  v.  James  Underwood,  et  al. 

Former  Adjudication. 

Where  plaintiff's  right  to  hold  a  bank  liable  for  conversion  was 
fully  adjudicated  in  the  federal  court,  a  court  of  competent  juris- 
diction, and  there  was  judgment  against  him,  he  cannot  have  the  same 
issue  adjudicated  in  the  state  court.  The  judgment  of  the  federal 
court  not  appealed  from  is  conclusive. 

APPEAL  FROM  LOGAN  CIRCUIT  COURT. 

April  5,  1876. 

Opinion  by  Judge  Lindsay  : 

The  questions  of  law  involved  in  this  case  are  practically  the  same 
as  those  settled  by  this  court  by  the  last  opinion  delivered  in  the 
case  of  The  Society  of  Shakers  v.  Underwoods,  et  al.  The  facts  are 
the  same,  except  that  the  district  court  of  the  United  States,  sitting 
as  a  court  of  bankruptcy,  rejected  the  claim  of  Davenport,  whilst  it 
held  the  assignee  of  the  Bank  of  Bowling  Green  liable  for  a  portion 


666  Kentucky  Opinions. 

of  the  claim  asserted  by  the  Shakers.  In  that  proceeding  Davenport 
stated  his  claim  as  follows.  He  averred  that  the  bank,  "was  and  still 
is  jointly  and  truly  indebted  to  this  deponent  in  the  sum  of  nine 
thousand  two  hundred  seventy  dollars  ($9,270),  being  for  deposit 
of  nine  one-thousand-dollar  Warren  county  bonds,  Nos.  respectively 
37,  62,  40,  44,  and  45  B.  and  5,  6,  22,  and  34  C,  which  bonds  were 
wrongfully  converted  by  said  bank  to  its  own  use  without  deponent's 
knowledge  or  consent." 

An  examination  of  the  petition  in  this  case  will  show  that  the 
appellant  is  here  seeking  to  recover  from  the  appellees  the  value  of 
these  identical  bonds,  upon  the  ground  that  they  were  converted  by 
the  bank,  with  their  knowledge,  or  that  they  by  their  gross  neglect, 
permitted  and  enabled  the  bank  to  convert  them. 

As  said  in  the  case  of  the  Shakers,  "We  regard  it  as  plain  that  ap- 
pellants' petition  does  not  authorize  a  recovery  for  a  greater  sum 
than  the  value  of  such  of  their  (his)  bonds  on  special  deposit  as 
were  sold  and  appropriated  to  the  uses  and  purposes  of  the  bank." 

Appellant  elected  to  test  the  preliminary  and  fundamental  question 
in  his  case,  that  is,  the  conversion  by  the  bank  of  his  bonds,  by  a  pro- 
ceeding against  the  assignee  of  the  bank  in  a  court  of  competent 
jurisdiction.  After  the  issue  had  been  made  up  and  the  evidence 
heard,  that  court  adjudged  that  none  of  his  bonds  had  been  converted 
by  the  bank.  It  dismissed  his  claim  upon  that  ground,  and  allowed 
the  Shakers  a  portion  of  their  claim  because  the  proof  showed,  that 
the  proceeds  of  a  portion  of  their  bonds  had  gone  to  the  credit  of  and 
had  been  appropriated  by  the  bank  to  its  uses  and  purposes. 

This  unreversed  judgment  of  the  district  court  is  conclusive  as  to 
the  question  of  the  conversion  by  the  bank  of  Davenport's  bonds.  It 
estops  him  to  assert  in  any  court,  for  any  purpose,  that  it  did  convert 
them.  He  cannot  have  a  retrial  of  the  question  of  fact  in  the  state 
courts,  any  more  than  he  can  in  the  federal  courts.  The  judgment  in 
the  district  court  is  not  analogous  to  a  verdict  and  judgment  in  favor 
of  one  of  several  co-trespassers.  In  a  case  of  that  sort,  the  plaintiff 
may  concede  the  innocence  of  one,  and  still  recover  against  any  one 
or  more  of  the  other  wrongdoers.  But  in  this  case,  the  liability  of 
appellees  depends  wholly  upon  the  guilt  of  the  bank.  If  it  did  not 
convert  appellant's  bonds,  then  he  can  recover  nothing  against  them, 
no  matter  how  negligent  they  may  have  been  in  the  discharge  of 
their  duties  as  presidents  and  directors  of  the  bank. 

We  have  already  seen  that  the  record  shows  that  the  question  of 
conversion  by  the  bank  has,  by  a  court  of  competent  jurisdiction,  been 


Charles  Graves  v.  T.  D.  Collins  &  Son.  667 

conclusively  and  finally  settled  adversely  to  his  claim.  Hence  it  is 
impossible  for  him  to  make  out  a  state  of  case  authorizing  a  recovery 
in  this  action,  in  view  of  the  principles  announced  by  this  court  in  its 
opinion  in  the  Shaker  case.  We  are,  therefore,  of  opinion  that  the 
circuit  court  properly  overruled  the  general  demurrer  to  the  amended 
answer  of  appellees,  and  properly  overruled  the  special  demurrer  to 
the  second  paragraph  of  said  answer. 

Such  being  the  case,  it  follows  that  the  circuit  court  properly  in- 
structed the  jury  to  find  for  the  appellees. 

Judgment  affirmed. 

Mines  &  Porter,  for  appellant.    J.  R.  Underwood,  for  appellees. 


Charles  Gr^wes  v.  T.  D.  Collins  &  Son. 

Mechanics'  Liens — Attaching  of  Liens. 

Mechanics  and  material  men  are  allowed  liens  upcMi  the  buildings 
erected  by  them,  or  out  of  their  materials  and  upon  the  estate  of  the 
debtor  in  the  land  upon  which  the  building  stands,  but  the  mere 
promise  by  the  purchaser  that  he  will  use  the  material  in  the  con- 
struction of  a  building  does  not  give  to  the  material-man  a  lien  on 
such  land. 

Attaching  of  Liens. 

The  lien  of  a  mechanic  or  material-man  attaches  to  the  building 
and  land  upon  which  it  stands  when  the  labor  is  performed  and  the 
material  is  used  in  the  construction. 

APPEAL  FROM  MARION  CIRCUIT  COURT. 

April  6.  1876. 

Opinion  by  Judge  Lindsay  : 

Mechanics  and  material-men  are  allowed  by  statute  a  lien  upon 
the  building's  erected  by  them  or  out  of  their  material,  and  upon  the 
estate  of  the  debtor  in  the  land  upon  which  the  building  stands,  upon 
the  idea  that  their  labor  or  property  has  conduced  to  better  its  con- 
dition or  to  enhance  its  value. 

The  mere  promise  upon  the  part  of  the  purchaser  that  he  will  use 
the  material  in  the  construction  of  a  building,  does  not  give  to  the 
material-man  a  lien  upon  the  land  upon  which  he  agrees  to  erect  it. 
In  this  case,  except  to  the  extent  of  five  or  six  dollars  worth  of  lum- 
ber, put  into  a  hen  house,  no  portion  of  the  lumber  sold  by  appellee 


668  Kentucky  Opinions. 

to  Graves  was  used  in  improving  or  bettering  the  condition  of  the 
realty  against  which  the  lien  is  asserted. 

It  was,  therefore,  error  to  subject  said  realty  to  the  payment  of  the 
whole  of  appellees'  claim.  Judgment  reversed  so  far  as  it  enforces 
the  asserted  lien,  and  cause  remanded  for  a  judgment  conformable 
to  this  opinion. 

/.  D,  Beldcn,  for  appellant.    Russell  &  Averitt,  for  appellees. 


R.  J.  Daniels,  et  al.,  v,  G.  B.  Dockery. 

Sheriff  May  Maintain  Trover  for  Conversion  of  Personal  Property. 

A  sheriff  who  levies  an  execution  upon  personal  property  may 
maintain  trover  for  its  conversion. 

APPEAL  FROM  OHIO  C?IRCUIT  COURT. 

April  6,  1876. 

Opinion  by  Judge  Cofer: 

A  sheriff  who  levies  an  execution  upon  personal  property  may 
maintain  trover  for  its  conversion  while  in  his  possession,  or  in  the 
possession  of  his  bailee.  IVilliams,  et  a/.,  z\  Herndon,  I2  B.  Mon. 
484.  In  this  respect  the  rights  of  the  sheriff  are  at  least  equal  to  the 
rights  of  any  other  bailee;  and  as  an  ordinary  bailee  may  maintain 
trover  in  his  own  name  and  recover  the  value  of  the  property  con- 
verted, a  sheriff  may  do  so. 

It  is  not  in  terms  alleged  that  tlie  execution  was  in  force  when  the 
levy  was  made,  but  it  is  alleged  that  it  was  levied,  and  the  date  of 
the  execution  is  given  and  copies  of  the  execution  and  levies  are  filed 
and  made  part  of  the  petition,  from  which  it  appears  that  the  levy 
was  made  on  the  same  day  on  which  the  execution  issued. 

It  is  not  distinctly  alleged  that  the  logs  levied  on  were  the  prop- 
erty of  Romans,  but  it  is  alleged  that  they  were  levied  on  as  his  prop- 
erty. And  besides  this,  the  defendants  denied  that  the  logs  were  the 
property  of  Romans  and  thereby  cured  any  defect  that  may  have  ex- 
isted in  the  petition  on  this  point.  And  although  the  petition  may  not 
have  been  sufficient  on  demurrer,  we  think  that  it  is  so  after  verdict. 

The  logs  were  cut  and  delivered  in  the  creek  by  Romans,  and  were 
prima  facie  his  property ;  and  it  devolved  on  the  appellants  to  show 
that  they  belonged  to  Daniels ;  whether  the  evidence  was  sufficient 


H.  C.  Douglass,  et  al.,  v.  Samuel  Stone,  et  al.  669 

for  that  purpose  was  a  question  for  the  jury,  and  we  cannot  say  that 
their  finding  was  palpable  against  the  evidence. 

The  appellee  was,  as  already  decided,  entitled  to  maintain  the  ac- 
tion, and  it  follows  that  he  had  the  same  right  of  recovery  which  he 
would  have  had  if  he  had  been  the  absolute  owner  of  tlie  logs ;  and 
consequently  he  had  a  right  to  recover  damages  for  the  unlawful  con- 
version as  well  as  for  the  value  of  the  property  converted. 

Judgment  affirmed. 

McHenry  &  Hill,  B,  L.  D.  Guffy,  A.  Duvall,  for  appellants. 
Thomas  G.  &  William  Ward,  for  appellee. 


H.  C.  Douglass,  et  al.,  v.  Samuel  Stone,  et  al. 

Husband  and  Wife— Sale  of  Wife's  Real  Estate. 

A  mortgage  of  the  wife's  land,  she  holding  a  general  estate,  to 
secnre  the  debt  of  her  husband,  executed  jointly  by  herself  and  hus- 
band, is  valid. 

Description  of  Property  in  Judgment. 

A  Judgment  decreeing  the  sale  of  real  estate  in  a  mortgage  fore- 
closure must  contain  a  reasonably  accurate  description  of  the  real 
estate  sufficient  to  enable  the  master  to  identify  the  land  he  was 
directed  to  sell,  without  searching  the  records. 

APPEAL  FROM  BOTLE  CIRCUIT  COURT. 

April  8,  1876. 

Opinion  by  Judge  Peters  : 

The  land  mortgaged  was  certainly  the  property  of  Mrs.  Douglass, 
she  having  the  legal  or  general  estate  therein,  and  the  debt  secured 
thereby  appears  to  have  been  the  debt  of  her  husband.  Nevertheless 
a  mortgage  of  her  land  executed  jointly  by  herself  and  husband  was 
valid  under  the  statute,  as  held  by  this  court  in  Smith,  et  al.,  v.  Wil- 
son, 2  Met.  235,  and  approved  by  their  court  in  Johnston  v.  Ferguson, 
lb.  503,  and  in  the  still  later  case  of  Sharp's  Adm'r  v.  Proctor's 
Adm'r  &  Heirs,  5  Bush  396.  The  efficiency  of  th€  mortgage  of  the 
wife's  land  as  a  security  for  the  debt  is,  therefore,  an  adjudged  ques- 
tion. 

The  description  given  of  the  land  in  the  petition  sought  to  be  sold 
is  two  undivided  sixths  of  a  tract  of  land  containing  one  hundred 
acres  lying  in  Boyle  county,  state  of  Kentucky,  one  mile  west  of  the 


670  Kentucky  Opinions. 

Danville  and  Hustonville  Turnpike  Road,  about  four  miles  from 
Danville,  and  being  the  land  allotted  to  Mrs.  Emily  Harby  by  com- 
missioners of  the  Boyle  county  court  for  dower  in  the  lands  of  her 
husband,  Enoch  Harby,  deceased ;  and  the  report  of  the  commission- 
ers is  filed  as  a  part  of  the  petition,  the  dower  land  being  lots  Nos. 
7  and  8  as  designated  on  the  plat  of  division.  The  description  of  the 
land  is  not  as  definite  in  the  mortgage  as  it  is  in  the  petition. 

To  the  suit  to  foreclose  the  mortgage  no  defense  was  made.  On 
the  3rd  of  September,  1873,  the  cause  was  finally  heard,  and  a  per- 
sonal judgment  was  rendered  against  H.  C.  Douglass  for  the  debt, 
interest  and  costs,  and  it  was  further  adjudged  that  the  equity  of 
redemption  of  defendants,  H.  C.  Douglass  and  S.  E.  Douglass,  or 
either  of  them,  in  the  mortgaged  property  mentioned  and  described 
in  the  proceedings  and  the  deed  of  mortgage  on  file,  given  by  them 
to  the  plaintifiF  to  secure  the  payment  for  which  judgment  is  above 
rendered,  should  be  thereby  foreclosed.  It  is  adjudged  that  so  much 
of  said  property  as  will  pay  to  the  plaintiff  said  sum  with  interest  at 
said  rate  from  said  date  until  the  day  of  sale  and  costs  of  this  action 
and  expenses  of  sale,  including  $25  allowed  commissioner  for  making 
sale,  and  to  be  taxed  as  costs,  be  sold,  etc. ;  and  then  directions  are 
given  when,  where  and  how  the  sale  shall  be  advertised  and  made. 

On  the  22nd  of  December,  1873,  the  master  returned  his  report  of 
sale  to  the  court,  in  which  he  reports  "he  exposed  to  public  sale  the 
property  in'*  the  judgment  mentioned  on  Monday,  the  20th  of  Octo- 
ber, 1873,  th^t  being  county  court  day,  before  the  court  house  door 
in  Danville,  Ky.,  after  having  first  duly  advertised  the  same.  He 
then  describes  the  manner  he  admitted  the  sale,  and  concludes  by 
saying  he  first  oflFered  less  than  the  entire  property  but  not  receiving 
sufficient  bids  therefor  to  satisfy  the  judgment,  he  sold  the  entire 
property  directed  to  be  sold,  and  Samuel  Stone  being  the  highest  and 
best  bidder  became  the  purchaser  thereof  at  the  price  of  $769.68. 

The  description  of  the  land  as  given  in  the  judgment  is  wholly  in- 
sufficient to  enable  the  master  to  identify  the  land  he  was  directed 
to  sell ;  nor  could  he  by  any  paper  in  the  suit  find  the  tract  out  of 
which  he  was  to  sell  two-sixths.  He  might,  from  the  report  of  the 
commissioners  who  allotted  to  Mrs.  Harby  dower  in  her  late  hus- 
band's real  estate,  find  "lots  7  and  8 ;"  but  when  he  went  on  the  land 
he  would  not  be  enabled  from  that  alone  to  find  the  dower  land ;  and 
from  what  end  or  side  of  said  two  lots  the  two-sixths  thereof  was  to 
be  set  apart  to  Mrs.  Douglass  is  still  more  uncertain;  the  judgment 
is  too  uncertain  and  indefinite,  and  cannot,  for  that  reason,  be  sus- 


Louisville  &  Nashville  R.  Co.  v,  James  Wilkerson.     671 

tained,  as  has  been  held  by  this  court  heretofore.    Lawless  v.  Barger, 
et  al.,  9  Bush  665. 

Moreover  the  allowance  to  the  commissioner  is  more  than  the 
statute  allows  him  for  making  the  sale. 

Wherefore  the  judgment  is  reversed  and  the  cause  is  remanded 
.  for  further  proceedings  consistent  herewith. 

Fox,  Grigsby  &  Fox,  for  appellants, 
Durham  &  Jacob,  for  appellees. 


Louisville  &  Nashville  R.  Co.  v.  James  Wilkerson. 

Damages  for  Breach  of  Contract — Carriers. 

Where  a  carrier  of  passengers  undertakes  to  transport  a  passenger 
from  one  point  to  another  it  is  bound  to  stop  its  train  and  permit 
such  passenger  to  get  off  at  the  point  to  which  it  has  agreed  to  carry 
him,  and  failing  to  do  so  is  liable  to  him  for  breach  of  its  contract. 

Personal  Injuries. 

When  a  passenger  whom  a  carrier  has  agreed  to  transport  to  a  cer- 
tain point  leaves  the  train  before  it  stops  at  such  point  and  Is  In- 
jured, the  carrier  is  not  liable  for  damages  on  account  of  such  injury. 

Measure  of  Damages. 

The  fact  that  a  carrier  violatefl  its  contract  to  transport  a  passen- 
ger to  a  certain  point  by  failing  to  stop  at  such  point,  does  not  war- 
rant such  passenger  in  leaving  the  train  while  it  is  under  headway 
and  if  he  did  so  and  in  consequence  is  injured  he  is  without  remedy. 
He  can  hold  the  carrier  for  breach  of  its  contract  only,  but  not  for 
his  own  folly. 

APPEAL  FROM  MARION  CIRCUIT  COURT. 

April  11,  1876. 

Opinion  dy  Judge  Lindsay  : 

The  demurrer  to  the  first  paragraph  of  appellee's  petition  was 
properly  overruled.  If  appellant  undertook,  as  a  carrier  of  passen- 
gers, to  transport  appellee  from  Lebanon  to  the  Nelson  farm,  it  was 
bound  to  stop  its  train  and  allow  appellee  to  get  off  at  his  point  of 
destination,  and  if  it  failed  to  do  this,  such  failure  was  a  breach  of 
contract,  for  which  it  is  answerable  in  damages. 

The  demurrer  to  the  second  paragraph  was  properly  sustained.  It 
is  not  material  that  appellant  violated  its  contract  in  failing*  to  stop 
its  train.    This  failure  did  not  warrant  appellee  in  leaving  the  train 


()^2  Kentucky  Opinions. 

whilst  it  was  under  headway.  If  he  did  so,  and  in  consequence  of 
his  own  folly  received  personal  injuries,  he  is  without  remedy  there- 
for. He  can  hold  the  company  responsible  for  its  breach  of  contract, 
but  not  for  the  consequences  of  his  own  temerity. 

It  was  error  in  the  court  to  allow  appellee  to  introduce  on  the 
trial  evidence  as  to  the  injuries  he  thus  received,  and  also  as  to  the 
sickness  of  his  wife,  and  as  to  the  effect  his  injuries  had  upon  her. 
The  measure  of  the  damages  to  which  appellee  is  entitled,  if  he  is 
entitled  to  recover  at  all,  is  correctly  set  out  in  instruction  No.  4, 
given  for  appellant,  and  no  proof  should  have  been  heard  that  did 
not  tend  to  elucidate  the  questions  incident  to  the  element  of  dam- 
ages therein  stated. 

Instruction  No.  i,  given  for  appellee,  is  correct  except  as  to  the 
measure  of  damages.  It  is  error  in  such  a  case  as  this  to  tell  the 
jury  that  they  may  assess  damages  at  such  sum  as  they  may  believe 
the  plaintiff  is  entitled  to.  It  leaves  this  important  question  to  be 
determined  in  accordance  with  the  opinions  and  feelings  of  the 
jurors,  instead  of  by  the  rules  of  law.  To  this  extent  this  instruction 
and  instruction  No.  4,  given  for  appellant,  are  inconsistent.  This  is 
a  case  of  mere  breach  of  contract,  and  exemplary  damages  cannot  be 
awarded.  When  the  incompetent  testimony  is  excluded,  and  instruc- 
tion No.  I,  g^ven  for  appellee,  is  corrected  as  indicated,  said  instruc- 
tion and  instruction  No.  4,  given  for  appellant,  will  present  the  whole 
law  of  the  case. 

Instruction  No.  7,  asked  by  appellant,  was  properly  refused.  It  is 
for  the  jury,  uninfluenced  by  the  court,  to  pass  upon  the  credibility 
of  competent  witnesses. 

Upon  the  cross  appeal  the  judgment  is  affirmed,  but  upon  the  ap- 
peal of  the  railroad  company  it  is  rezfcrsed.  The  cause  is  remanded 
for  a  new  trial  upon  principles  consistent  with  this  opinion. 

Ruussell  &  Huston,  R.  H.  Rountrec,  for  appellant. 
/.  D.  Belden,  for  appellee. 


ISOM  DODD,  ET  AL.,  V.  JOHN  RyNEARSON's  Adm'r. 

Contract  of  Married  Woman  Void  as  to  Her,  Binding  on  Other 

While  a  contract  of  a  married  woman,  sadi  as  under  tbe  statote 
does  not  bind  her  or  her  estate,  is  void  as  to  her,  it  is  valid  upon  per- 
sons who  sign  it,  not  under  disability. 


Irvine  T.  Green  v.  D.  T.  Smith's  Trustee,  et  al.       673 

APPEAL  FROM  MERCER  CIRCUIT  COURT. 

April  11,  1876. 

Opinion  by  Judge  Peters: 

Mrs.  Sarah  Dodd  was  a  married  woman  when  she  signed  the  note, 
and  the  contract  is  not  such  as  under  the  statute  a  married  woman 
can  bind  herself  or  estate  for,  consequently,  as  to  her  the  contract 
was  void ;  but  although  it  was  void  as  to  her  it  was  valid  and  binding 
on  Isom  Dodd,  Floyd  Burks  and  George  Bradshaw,  who  labored 
under  no  disability.  And  they  were  not  the  sureties  of  Mrs.  Sarah 
Dodd  within  the  meaning  of  the  statute,  because  she  was  not  capable 
of  binding  herself,  and  the  debt  was  the  debt  of  the  other  persons 
who  signed  the  liote,  not  as  sureties  but  as  principals,  there  being  no 
one  bound  for  whom  they  could  become  surety.  Gaines's  Adtn'x  v. 
Poor,  3  Met.  503 ;  Short  z\  Bryant,  10  B.  Mon.  10. 

Judgment  affirmed, 

Kyle  &  Poston,  for  appellants,    T.  /.  Polk,  for  appellee. 


Irvine  T.  Green  v.  D.  T.  Smith's  Trustee,  et  al. 

Landlord  and  Tenant — Lien  of  Landlord. 

The;  lien  of  a  landlord  on  the  proceeds  of  the  premises  and  on  fix- 
tures and  household  furniture  of  the  tenant  owned  by  him  after  pos- 
session, cannot  be  for  more  than  one  year's  rent  nor  for  rent  which 
has  been  due  for  more  than  120  days. 

APPEAL  FROM  MADISON  CIRCUIT  COURT. 

April  11,  1876. 

Opinion  by  Judge  Cofer  : 

A  landlord  has  a  superior  lien  on  the  proceeds  of  the  farm  or 
premises  rented,  on  the  fixtures,  on  the  household  furniture,  and 
other  personal  property  of  the  tenant  or  under-tenant,  owned  by 
him  after  possession  is  taken  under  the  lease ;  but  such  lien  shall  not 
be  for  more  than  one  year's  rent  due  or  to  become  due,  nor  for  any 
rent  which  has  been  due  for  more  than  one  hundred  twenty  days. 
Sec.  13,  Art.  I,  Chap.  66,  Rev.  Stat. 

Whether  the  renting  was  by  the  year  or  by  the  half  year,  makes  no 
difference.  The  rent  was  to  be  paid  half  yearly,  and  when  the  first 
note  was  executed  that  amount  was  then  due,  and  when  the  deed  of 

43 


674  ICentucky  Opinions. 

trust  was  made,  it  had  been  due  for  more  than  120  days,  and  the 
landlord's  lien  had  already  been  lost. 
Judgment  affirmed. 

T,  /.  Scott,  for  appellant, 

E.  IV.  Turner,  A,  R.  Burnam,  for  appellees. 


T.  W.  Samuels,  et  al.,  v.  Alex.  Sayers,  et  al. 

• 

Eminent  Domain — ^Abandonment  of  Right — Adverse  Possesmon. 

One  holding  possession  of  real  estate  under  a  railroad  company 
which  secured  It  for  railroad  uses  under  the  right  of  emlneat 
domain,  but  abandoned  It,  cannot  successfully  assert  title  by  adTerse 
possession  against  the  rightful  owner. 

APPEAL  FROM  NELSON  CIRCUIT  COURT. 

April  13,  1876. 

Opinion  of  Judge  Pryor: 

At  the  time  Arnold  took  possession  of  a  portion  of  the  right  of 
way  relinquished  to  the  railroad  company  by  Greathouse,  it  was  for 
the  purpose  of  erecting  thereon  a  building  for  the  purposes  of  the 
company,  and  for  the  accommodation  of  those  traveling  upon  its  road, 
in  other  words  it  was  a  wav  station  created  for  the  benefit  and  cx>n- 
venience  of  those  being  within  its  immediate  locality.  Arnold  entered 
on  the  land  in  controversy  under  the  railroad  company,  the  latter  hold- 
ing under  Greathouse.  Weaver  held  under  Arnold  and  Sayer  under 
Weaver ;  and  we  do  not  well  see  how  the  appellees  can  now  rely  on 
an  adverse  holding  as  against  Greathouse  or  his  vendees.  Arnold 
erected  his  building  by  the  permission  of  the  company.  Sayer  has 
done  the  same  thing,  and  does  not  pretend  to  exhibit  any  other  title 
or  right  of  possession  than  that  derived  originally  through  and  from 
the  railroad  company. 

The  company  had  the  right  to  use  this  ground  or  right  of  way  for 
all  the  legitimate  purposes  of  the  road ;  but  in  this  case  it  has  aban- 
doned the  possession  or  use  of  the  way  station,  and  left  the  building 
and  ground  within  the  thirty  feet  (except  the  road  bed)  in  the  pos- 
session and  without  the  enclosure  of  the  appellees,  who  are  cultivat- 
ing the  land  and  claiming  to  hold  it  as  against  the  rightful  owner. 
Such  a  transfer  of  the  possession  by  the  company,  if  intended  for 
the  private  use  of  Sayer  or  his  vendor,  was  a  forfeiture  of  the  right. 


GiLUE  A.  Glover  v.  Mary  Carter,  et  al.  675 

and  the  owner  could  at  once  maintain  his  ejectment.  There  is  no 
power  on  the  part  of  the  company  to  dedicate  the  fee  or  its  use  to 
any  other  purpose  than  such  as  necessarily  pertains  to  the  use  and 
employment  of  the  road  by  the  company.  It  appears,  however,  that 
the  appellees  agree  to  surrender  the  possession  when  required  by  the 
company,  and  as  they  are  asserting  their  right  to  hold  the  ground  as 
against  the  appellants,  and  are  now  using  it  for  their  own  private  pur- 
poses, the  company  having  abandoned  the  station,  there  is  no  reason 
why  the  appellants  should  not  recover. 

The  case  is  now  in  a  court  of  equity,  and  as  the  erection  of  the 
buildings  was  in  the  first  place  proper  and  for  the  legitimate  use  of 
the  road,  the  chancellor  in  rendering  his  judgment  should  give  to  the 
appellees  a  reasonable  time  in  which  to  remove  their  buildings  and 
fencing  from  off  the  land  in  controversy  and  render  a  judgment  de- 
ciding that  the  appellants  are  the  rightful  owners  of  the  land  in 
controversy.  The  railroad  company  appealed  from  the  judgment  be- 
low, and  being  made  an  appellee  has  had  the  right,  if  there  had  been 
a  judgment  against  it,  to  have  the  company  substituted  as  an  appel- 
lant. There  is  no  judgment,  however,  against  the  company.  The 
questions  on  the  cross  petition  of  Sayers  against  the  company  are 
undisposed  of,  and  the  right  of  property  in  appellants  is  not  ques- 
tioned by  the  railroad  company.  The  name  of  the  railroad  company 
is  stricken  from  the  record  as  appellee.  The  judgment  is  reversed 
and  cause  remanded  for  further  proceedings  consistent  with  this 
opinion. 

E,  E.  McKay,  for  Samuels,    Muir  &  Wickliffe,  for  appellees. 
William  Johnson,  for  L.  &  N.  R.  Co. 


Gillie  A.  Glover  v.  Mary  Carter,  et  al. 

Wills — Construction  of  Will — Heirs— Children. 

When  by  will  the  testator  uses  the  words  to  a  person  "and  his  heirs 
by  his  present  wife  to  have  and  to  hold  to  him  and  his  heirs  by  his 
present  wife  forever/'  it  is  held  that  the  word  heirs  is  used  in  the 
sense  of  children  and  that  the  person  named  and  his  children  took 
a  present  absolute  estate  in  the  land  devised. 

APPEAL  FROM  BATH  CIRCUIT  COURT. 

April  14,  1876. 

Opinion  of  Judge  Lindsay  : 

The  testator  gave  his  lands  to  James  F,  Glover  and  his  heirs  by 


676  Kentucky  Opinions. 

his  present  wife,  and  concluded  the  desire  with  these  words,  "to 
have  and  to  hold  to  him,  the  said  James  F.  Glover,  and  his  heirs  by 
his  present  wife,  forever." 

Appellant  insists  that,  by  the  common  law,  these  words  would 
create  an  estate  in  special  tail  in  James  F.  Glover,  and  that  our  stat- 
ute eo  instanti  and  of  its  own  force  transformed  it  into  an  estate  in 
fee  simple.  It  will  never  be  assumed  that  a  testator  or  grantor  in- 
tended to  create  an  estate  tail  unless  his  language  leads  naturally  and 
legitimately  to  that  conclusion.  If  the  instrument  will  allow  another 
construction,  not  involving  the  necessity  of  distorting  or  straining  the 
obvious  meaning  of  the  expressions  used,  the  courts  will  incline  to 
adopt  it  as  the  correct  one.  Breckenridge  &  Wife  v.  Denny  et  d,, 
8  Bush  523. 

It  is  manifest  here  that  the  testator  intended  to  vest  the  children 
of  James  F.  Glover,  and  his  then  wife,  with  a  present  and  absolute 
estate  in  the  land  devised.  He  used  the  words  "heirs"  in  the  sense 
of  children.  Of  this  there  can  be  no  doubt.  We  do  not  think  the 
devise  will  admit  of  the  construction  that  James  F.  Glover  took  a 
life  estate,  with  remainder  to  his  children.  The  case  of  Jarvis  & 
Trabue  v.  Quigley,  10  B.  Mon.  104,  does  not  support  that  view.  The 
court  said  in  that  case  that  the  conveyance  to  the  sole  use  of  the 
wife  and  her  children,  in  being  and  expecting,  might  be  understood 
as  giving  to  the  wife  an  interest  in  common  with  her  children,  but 
that  such  was  not  the  necessary  construction,  and  it  was  repelled  by 
the  other  provisions  of  the  deed. 

In  Foster  v.  Shreve,  6  Bush  519,  it  was  held  tliat  the  mother  took 
a  life  estate  with  remainder  to  her  children,  upon  the  idea  that  she 
was  the  only  grantee  mentioned  in  the  caption  of  the  deed.  The 
children  were  not  parties  to  the  deed,  and  could  not  take  a  present  in- 
terest. But  as  it  was  evident  that  they  were  intended  to  be  benefi- 
ciaries  under  it  in  some  way,  the  court  harmonized  its  provisions  by 
holding  that  the  mother  took  an  estate  for  life  with  remainder  to 
her  children. 

In  the  casei  of  Cessna,  et  ai,  z\  Cessnas  Admr,,  4  Bush  516,  the 
bond  was  executed  to  W.  W.  Cessna  and  his  lawful  children.  The 
court  held  that  the  father  and  children  were  joint  vendees  and  held 
in  equity  as  tenants  in  common.  Treating  the  words  "heirs"  as 
synonymous  with  "children"  the  provisions  of  the  second  clause  of 
the  will  of  R.  C.  Moore,  deceased,  are  of  exactly  the  same  legal  im- 
port with  the  bond  to  W.  W.  Cessna  and  his  lawful  children.  The 
two  instruments  should,  therefore,  receive  the  same  construction. 


James  Coy  v.  James  Munier.  677 

We  conclude  that  James  F.  Glover  and  his  two  children  by  the 
present  appellant,  were  holding  the  lands  devised  to  them  by  the 
testator  as  tenants  in  common  at  the  time  of  his  death.  The  appel- 
lant as  his  surviving  widow  is  entitled  either  to  dower,  or  to  a  home- 
stead out  of  his  one  undivided  third  of  said  lands.  The  judgment 
denying  her  any  interest  whatever  in  the  realty  of  her  deceased 
husband  is  reversed. 

The  cause  is  remanded  for  further  proceedings,  and  for  a  final 
judgment  not  inconsistent  with  this  opinion. 

V.  B,  Young,  Nesbitt  &  Gudgell,  for  appellant, 
B,  D.  Sacy,  Apperson  &  Reid,  for  appellees. 


James  Coy  v.  James  Munier. 

Mandamus — ^Adequate  and  Complete  Remedy. 

Mandamus  cannot  be  resorted  to  when  plaintiff  has  appropriate 
legal  remedy,  complete  and  adequate. 

APPEAL  FROM  NELSON  CIRCUIT  COURT. 

April  15.  1876. 

Opinion  by  Judge  Lindsay  : 

This  is  not  a  case  for  a  mandamus.  The  statutes  furnished  the 
appellee  with  a  remedy,  complete,  specific  and  adequate.  He  is  the 
holder  by  assignment  of  a  claim  against  the  county  of  Nelson.  It 
has  been  allowed  by  the  court  of  claims,  and  the  appellant,  the  sheriff 
of  said  county,  has  been  directed  to  pay  it  out  of  the  county  taxes, 
levied  for  a  given  fiscal  year,  and  its  amount,  together  with  the  name 
of  his  assignor,  is  upon  the  list  of  the  claims  furnished  to  the  sheriff 
by  the  clerk  of  the  county  court. 

If  appellee  has  demanded  payment  and  it  has  been  refused,  he  may 
have  recovery  against  the  appellant  and  his  sureties  for  his  demand, 
with  ten  per  centum  upon  the  amourit  due,  and  he  may  proceed  by 
suit  in  the  circuit  court,  or  by  motion  in  the  county  court.  Sec.  7, 
Art.  2,  Chap.  27,  General  Statutes. 

Although,  in  this  state,  a  writ  of  mandamus  is  an  order  of  a  court 
of  competent  and  original  jurisdiction  commanding  an  executive 
or  ministerial  officer  to  perform  an  act,  or  omit  to  do  an  act,  the  per- 
formance or  omission  of  which  is  enjoined  by  law,  yet  it  will  not  be 
granted  as  a  matter  of  course  in  any  instance  in  which  the  party 


678  Kentucky  Opinions. 

aggrieved  has  an  interest  in  compelling  the  officer  to  do  or  refrain 
from  doing  the  act  so  enjoined  upon  him.  It  should  generally  be  re- 
fused when  he  has  some  other  appropriate  remedy.  Goheen  v, 
Myers,  18  B.  Mon.  426.  It  should  never  be  granted  when  he  has  a 
legal  remedy  that  is  specific  and  complete. 

The  judgment  awarding  the  writ  in  this  case  is  reversed  and  the 
cause  remanded  with  instructions  to  dismiss  appellee's  petition. 

C.  T.  Akinson,  for  appellant.    Muir  &  Wickliffe,  for  appellee. 


C.  L.  Johnson  v.  Board  of  Trustees  of  Harrodsburg. 

City  Councilmen — Liability  for  Damages— Policeman. 

City  councilmen  who  have  appointed  a  policeman  are  not  liable  for 
the  damages  resulting  from  an  ImiH-oper  arrest  made  by  such  officer. 

APPEAL  FROM  MERCER  CIRCUIT  COURT. 

April    18,  1876. 

Opinion  by  Judge  Pryor: 

The  liability  of  appellees  is  made  to  depend  alone  upon  the  appoint- 
ment by  them  of  Gallagher  to  the  position  of  policeman,  and  his  re- 
tention in  that  position  after  the  alleged  wrong  had  been  committed. 
We  know  of  no  principle  by  which  the  trustees  or  the  city  are  to  be 
made  responsible  for  an  improper  arrest  made  by  a  city  officer  under 
the  general  authority  given  him  by  virtue  of  the  appointment.  They 
did  not  order  the  arrest  of  the  party  or  direct  his  imprisonment  after 
the  arrest  was  made.  Such  arrests  are  often  improper,  but  when 
made,  as  in  this  instance,  by  the  officer  upon  his  own  responsibility, 
we  cannot  well  see  how  third  parties  are  to  be  held  liable.  There  is 
no  allegation  that  the  trustees  were  required  to  take  a  bond  from 
the  policeman  in  order  to  insure  indemnity  for  the  anticipated  wrongs 
of  the  latter,  nor  do  we  presume  that  such  was  their  duty  under  the 
charter.  The  petition  as  amended  presenting  no  cause  of  action,  the 
judgment  must  be  affirmed. 

John  B.  Major,  J.  J.  McAfee,  for  appellant, 
Kyle  &  Poston,  for  appellees. 


James  H.  Maze  v.  Elijah  Clark.  679 

James  H.  Maze  v.  Elijah  Clark. 

Real  Estate — ^Title  by  Adverse  Possession. 

Where  one  has  been  in  the  undisturbed  i>088ee8ion  of  real  estate  by 
actual  incloeure  for  more  than  fifteen  years  prior  to  the  beginning  of 
an  action  against  him  for  such  land,  claiming  it  as  his  own,  his  title 
cannot  be  defeated. 

APPEAL  FROM  BATH  CIRCUIT  COURT. 

April  19,  1876. 

Opinion  by  Judge  Pryor  : 

If  the  appellee  has  been  in  the  undisturbed  possession  of  a  part  of 
the  land  in  controversy  by  actual  inclosure  for  more  than  fifteen 
years  prior  to  the  institution  of  the  action  claiming  it  as  his  own, 
it  defeats  the  appellant's  right  of  recovery  to  that  extent,  or  if  the 
division  line  between  the  appellee  and  Wright  places  the  disputed 
territory  within  the  boundary  of  appellee,  it  defeats  the  action.  The 
only  question  presented  by  the  record  is  as  to  the  location  of  this 
dividing  line ;  and  if  this  boundary  is  fixed  by  the  deed  of  partition, 
it  must  govern  the  rights  of  the  parties.  The  appellant  claims  under 
Wright,  and  the  lines  and  comers  as  fixed  by  the  deed  from  Clark 
to  Wright  must  control  this  case,  unless  it  is  shown  that  the  appellee 
has,  by  actual  inclosure,  been  in  the  possession  of  the  land  adversely 
for  such  a  time  as  will  present  a  statutory  bar.  The  first  instruction 
asked  by  counsel  for  appellant  should  have  been  given. 

The  judgment  below  is  reversed  and  cause  remanded  with  direc- 
tions to  award  a  new  trial  and  for  further  proceedings  consistent 
with  this  opinion. 

Nesbitt  &  Gudgell,  for  appellant. 

V.  B.  Young,  Reid  &  Stone,  for  appellee. 


John  Stevens  v.  James  Chorn. 

Surety  on  Note — ^Notice  by  Surety  to  Collect. 

A  notice  by  a  surety  upon  the  holder  of  a  promissory  note  requir- 
ing him  to  collect  the  note  is  in  effect  a  notice  to  institute  suit  and 
to  enforce  the  collection  of  the  Judlsment  ^wfhen  the  debt  shall  have 
been  put  in  judgment. 

Attorney  and  Client. 

Where  an  attorney  is  employed  to  collect  a  debt  due  his  client  he 
has  no  authority  to  release  sureties  thereon. 


68o  Kentucky  Opinions. 

APPEAL  FROM  CLARK  CIRCUIT  COURT. 

April  22,  1876. 

Opinion  by  Judge  Lindsay  : 

James  Qiorn  being  the  surety  for  John  H.  Quisenberry  on  a  note 
payable  to  W.  M.  Stevens,  delivered  to  the  latter  on  the  28th  of 
July,  1873,  a  written  notice  requiring  him  to  ^'collect"  said  note. 

Suit  was  instituted  and  judgment  recovered  on  the  note  at  the 
next  term  of  the  circuit  court.  Before  execution  could  be  issued  on 
this  judgment,  the  attorney  of  Stevens  was  informed  by  a  deputy 
circuit  court  clerk  that  the  judgment  had  been  replevied  in  the  office, 
and  for  that  reason  did  not  direct  an  execution  to  be  issued.  It 
turned  out  that  Chom  had  not  signed  the  replevin  bond  accepted  by 
the  clerk.  Upon  the  discovery  of  that  fact  and  before  the  bond  be- 
came due,  Stevens,  by  his  attorney,  repudiated  it,  by  an  entry  in 
writing  upon  the  memorandum  book,  and  forbade  the  clerk  to  issue 
an  execution  upon  it.  At  the  first  term  of  the  court  thereafter,  he 
entered  a  motion  and  finally  obtained  a  judgment  quashing  said  bond. 
After  the  bond  had  then  been  quashed,  Stevens  was  about  to  sue  out 
execution  on  his  judgment,  and  Chom  instituted  this  action  in  equity 
to  enjoin^  and  restrain  him  from  attempting  to  subject  his  estate  to 
the  judgment  thereof. 

We  need  not  decide  whether,  under  the  provisions  of  Sec.  10,  Chap. 
97,  Revised  Statutes,  which  were  continued  in  force  by  Sec.  11,  Chap. 
104,  of  the  General  Statutes,  a  surety  is  required,  in  order  to  secure 
the  full  benefit  thereof,  to  notify  the  creditor,  both  to  sue  at  the  next 
term  of  the  court,  and  to  prosecute  his  suit  with  reasonable  diligence, 
and  also  to  sue  out  execution  on  his  judgment  after  he  shall  have 
obtained  it,  and  in  good  faith  prosecute  it  to  collection. 

We  are  satisfied  that  in  either  view  of  the  statute,  both  requisitions 
may  be  made  in  one  notice,  and  we  are  of  opinion  that  a  notice  to 
"collect"  is  in  effect  a  notice  to  institute  suit,  and  to  enforce  the  col- 
lection of  the  judgment  when  the  debt  shall  be  reduced  to  a  judg- 
ment. It  is  not  complained  that  the  claim  was  not  prosecuted  to  a 
judgment  with  sufficient  diligence.  The  question  is  whether  Stevens 
has  acted  in  good  faith  in  his  attempts  to  sue  out  execution  and  col- 
lect the  judgment.  The  proof  shows  that  his  attorney  was  at  the 
clerk's  office  a  day  or  two  before  the  execution  was  due,  for  the  pur- 
pose of  directing  it  to  be  issued.  He  was  then  informed  by  the 
deputy  clerk  in  charge  of  the  office  that  the  judgment  had  been  re- 


John  Stevens  v.  James  Chorn.  68i 

plevied,  or  that  Quisenberry  had  signed  the  bond  and  would  give 
the  security  within  a  few  days. 

This  information  was  acted  upon  by  the  attorney,  and  there  is  no 
reason  inconsistent  with  good  faith  why  he  should  not  have  acted 
upon  it.  The  bond  accepted  by  the  clerk  was  not  signed  by  Chorn, 
and  the  surety  thereon  was  insolvent  at  the  time  he  signed  it.  The 
acceptance  of  that  bond  by  the  clerk  put  it  out  of  the  power  of 
Stevens  to  sue  out  execution,  until  he  could  have  it  set  aside  and 
quashed  by  order  of  court. 

But  it  is  insisted  that  the  attorney  for  appellant  authorized  the 
clerk  to  accept  the  insolvent  surety,  and  that  this  was  equivalent  to 
an  acceptance  of  the  bond  when  executed.  It  may  well  be  doubted 
whether  the  attorney  had  the  power  to  bind  his  client  by  the  accept- 
ance of  an  insufficient  bond,  especially  when  as  in  this  case  its  ac- 
ceptance operated  to  release  one  of  the  defendants  in  the  judgment. 
An  attorney  is  employed  to  collect  the  debt  due  to  his  client,  and 
has  no  authority  to  release  the  sureties  thereon,  nor  to  do  any  act 
necessarily  prejudicial  to  his  client's  interest.  Graves  v,  Briscoe,  3 
J.  J.  Marshall  532. 

But  answering  the  question,  it  is  clear  that  the  burden  was  upon 
appellee  to  prove  that  the  attorney  did  undertake  to  interfere  with 
and  direct  the  clerk  as  to  the  manner  in  which  he  should  discharge 
his  official  duties,  in  taking  and  accepting  the  bond  in  question.  The 
deputy  clerk  swears  that  the  attorney  authorized  him  to  accept  the 
surety,  who  was  accepted.  The  attorney  swears  without  hesitancy 
or  qualification  that  he  did  not  so  authorize  him. 

Treating  each  of  the  witnesses  as  equally  entitled  to  credit,  the 
evidence  is  equipoised  and  the  appellee  has  failed  to  make  out  his 
case.  The  testimony  of  Taliferro  was  incompetent;  but  if  it  had 
been  admitted,  it  could  not  have  changed  the  character  of  the  proof. 
The  facts  and  circumstances  of  the  case  tend  strongly  to  corroborate 
the  statements  of  the  attorney,  as  the  evidence  of  Taliferro  does  to 
corroborate  the  statements  of  the  deputy  clerk. 

The  judgment  is  reversed  and  the  cause  remanded  with  instruc- 
tions to  dissolve  the  temporary  injunction  and  to  dismiss  appellee's 
petition. 

James  Simpson,  for  appellant, 
Breckenridge  &  Buckner,  for  appellee. 


682  Kentucky  Opinions. 

William  Parrot's  Devisees  v.  Thomas  J.  Parrot's  Ex'x. 

Contracts— Mental  Capacity  of  Party  to  Contract 

E^ren  In  a  case  of  absolute  imbecility  when  there  was  entire  good 
faith  and  the  contract  was  Just  and  proper  and  for  the  benefit  of  the 
imbecile  a  court  of  equity  will  not  interfere  to  annul  It 

APPEAL.  FROM  WASfflNGTON  CIRCUIT  COURT. 

April  21,  1876. 

Opinion  by  Judge  Lindsay  : 

It  is  not  pretended  that  Thomas  J.  Parrot  procured  the  execution 
of  the  contract  of  February  i,  i868,  by  fraud  or  undue  influence. 
The  witnesses  relied  on  by  appellants  show  that  the  sums  agreed 
to  be  paid  him  were  not  unreasonable,  much  less  uncertainties.  They 
show  also  that  Thomas  J.  Parrot  honestly  and  faithfully  complied 
with  his  undertakings  and  that  the  services  rendered  were  not  only 
beneficial  to  his  father  and  mother,  but  were  absolutely  necessary 
for  their  comfort  and  security. 

The  proof  shows  that  the  mental  faculties  of  William  Parrot  were 
much  impaired  by  age,  but  he  was  not  an  imbecile  at  the  time  of  the 
execution  of  this  contract ;  and  appellant's  witnesses  prove  that  he 
understood  its  terms  and  was  anxious  that  it  should  be  entered  into. 
Under  all  these  circumstances,  the  chancellor  ought  to  enforce  the 
agreement  according  to  its  terms. 

Even  in  a  case  of  absolute  imbecility,  when  there  was  entire  good 
faith,  and  the  contract  was  just  and  proper,  and  was  for  the  benefit 
of  the  unfortunaate  party,  a  court  of  equity  will  not  interfere  to 
annul  it;  and  in  a  case  like  this,  where  the  party  was  not  entirely 
destitute  of  mind,  but  understood  and  assented  to  the  terms  of  a 
fair  and  proper  contract,  after  advising  with  his  neighbors  and  re- 
lations, and  after  it  had  been  acted  upon  by  the  other  party,  and  has 
resulted  in  manifest  benefit  to  the  persons  supposed  to  be  incapable 
of  contracting,  equity  will  enforce  rather  than  annul  the  agreement. 
Jones,  Adm'r,,  v.  Perkins,  5  B.  Mon.  222. 

The  judgment  in  this  case  is  affirmed. 

W.  H,  Hays,  for  appellants.    Brown  &  Lewis,  for  appellee. 


Rosa  P.  Graves,  et  al.,  v.  R.  C.  Harris,  et  al. 

Husband  and  Wife— Wife's  Right  to  Secure  Estate. 

The  wife  has  a  right  to  claim  a  settlement  out  of  estate  descended 
to  her  and  may  assert  it  by  original  bill  at  any  time  before  it  is  re- 
duced to  actual  possession  by  the  husband. 


Rosa  P.  Graves,  et  al.,  v,  R.  C.  Harris,  et  al,  683 

Right  of  Wife  to  Pay  Husband's  Debt 

The  wife  ha?  a  right  to  allow  her  interest  in  a  decedent's  estate  to 
be  applied  to  pay  her  husband's  debt  and  may  go  into  a  court  of 
equity  and  have  that  interest  settled  upon  her  and  thereby  free  it 
from  the  control  of  her  husband  and  terminate  his  right  to  reduce  it 
to  possession  and  thus  remove  it  beyond  the  reach  of  his  creditors. 

APPEAL  FROM  MARION  CIRCUIT  COURT. 

April  22,  1876. 

Opinion  by  Judge  Cofer: 

* 

The  appellant,  Rose  P.  Graves,  was  entitled  as  one  of  the  distribu- 
tees and  heirs  of  her  father  to  over  one  thousand  dollars  as  her  share 
of  the  surplus  personalty  in  the  hands  of  his  administrators,  and  to 
an  interest  in  his  real  estate.  The  administrators  held  the  note  of 
her  husband,  George  W.  Graves,  for  over  two  thousand  dollars. 

She  sold  her  interest  in  the  land  to  her  mother  for  $1,500.  When 
the  administrators  were  ready  to  distribute  the  surplus  personal 
estate,  Graves  desired  that  his  wife's  interest  should  be  applied  to 
the  payment  of  his  note,  but  she  declined  to  allow  it  to  be  done,  and 
insisted  that  it  should  be  secured  to  her.  Her  husband  then  agreed 
that  if  she  would  consent  to  have  his  note  paid  out  of  her  interest 
in  the  personal  estate  and  the  proceeds  of  the  sale  of  her  interest  in 
the  realty,  he  would  secure  that  amount  to  her  separate  use  by  a 
mortgage  on  a  house  and  lot  in  Lebanon.  To  this  Mrs.  Graves  as- 
sented, and  on  that  day,  March  14,  1874,  the  administrators  settled 
with  her  and  her  husband.  In  that  settlement  Graves's  note  was  cred- 
ited with  $1,000,  and  he  and  his  wife  executed  to  the  administrators 
a  receipt  for  that  sum  as  so  much  paid  on  her  distributive  share.  Mrs. 
Graves  had  not  then  conveyed  her  interest  in  the  land  to  her  mother, 
and  the  latter  having  sold  it  to  Thomas  H.  Johnson,  a  deed  was  made 
to  him  on  that  dav  in  which  Graves  and  wife  united.  The  deed  con- 
tains  a  recital  that  Mrs.  Rosetta  Johnson  (Mrs.  Graves's  mother) 
had  purchased  the  interest  of  Rosie  P.  Graves  and  G.  W.  Graves, 
her  husband,  and  paid  them  therefor,  but  the  evidence  shows  that 
the  money  had  not  in  fact  been  paid. 

On  the  same  day  the  administrators  assigned  the  residue  of 
Graves's  note  to  Mrs.  Johnson,  and  it  may  be  assumed  that  it  was 
then  agreed  that  Mrs.  Graves  would  accept  it  in  payment,  as  far  as 
it  would  go,  for  her  interest  in  the  land. 

The  result  of  the  transactions  of  that  day  may  be  thus  stated;  one 
thousand  dollars  of  Graves's  note  held  by  the  administrators  had,  at 


684  Kentucky  Opinions. 

his  request,  been  paid  by  his  wife,  and  she  had  agreed  to  pay  the 
balance  out  of  the  proceeds  of  her  interest  in  the  land,  in  considera- 
tion of  which  he  agreed  to  secure  that  amount  to  her  separate  use  by 
a  mortgage  on  his  house  and  lot. 

March  24,  ten  days  afterward,  a  mortgage  was  executed  in  accord- 
ance with  that  agreement,  but  without  the  intervention  of  a  trustee, 
to  secure  to  the  separate  use  of  Mrs.  Graves  the  sum  of  two  thou- 
sand dollars,  and  April  18.  following,  her  husband's  note  was  de- 
livered to  her  in  payment  of  $1,367.09,  of  the  price  of  her  interest  in 
the  land,  and  the  difference  between  that  sum  and  $1,500  was  paid 
to  her  in  cash. 

Prior  to  all  these  transactions  H.  C.  Harris  and  George  W.  Graves 
had  become  jointly  bound  as  sureties  for  E.  A.  Graves  in  two  debts 
for  $2,000  each ;  some  time  in  the  latter  part  of  that  year,  but  exact- 
ly when  it  is  not  disclosed  by  the  record.  E.  A.  Graves  was  adjudged 
a  bankrupt,  and  Harris  having  paid  the  debts,  brought  this  suit  De- 
cember 9,  1874,  against  George  W.  Graves  for  contribution,  and  sued 
out  an  attachment  against  his  property,  which  was  levied  on  the  next 
day,  on  the  house  and  lot  mortgaged  to  Mrs.  Graves. 

She  was  made  a  party  defendant  and  her  mortgage  was  attacked 
as  voluntary  and  fraudulent. 

She  answered,  denying  all  charges  of  fraud,  and  insisting  that  the 
mortgage  was  not  voluntary,  but  was  based  upon  a  valuable  con- 
sideration, and  asked  that  it  be  upheld  and  enforced.  George  W. 
Graves  answered,  and  among  other  things,  alleged  that  he  was  ad- 
judged a  bankrupt  January  13,  1875,  and  filing  a  copy  of  the  ad- 
judication, he  resisted  any  judgment  against  him  personally. 

February  5,  C.  A.  Johnson  presented  his  petition  adjudging  that 
he  had  been  regularly  appointed  assignee  of  the  estate  of  George  W. 
Graves,  and  had  received  the  register's  deed  conveying  to  him  all 
the  estate  of  said  Graves  and  asked  to  be  made  a  party,  which  was 
done,  and  he  then  moved  to  discharge  the  attachments,  but  his  mo- 
tion was  overruled.  The  house  and  lot  were  subsequently  sold  un- 
der a  consent  judgment,  and  the  court  on  final  hearing  having  ad- 
judged to  Harris  priority  over  Mrs.  Graves,  and  the  fund  not  being 
sufficient  to  pay  both,  she  prosecutes  this  appeal ;  and  Johnson  also 
prosecutes  an  appeal  claiming  the  fund  as  assignee  against  both 
Harris  and  Mrs.  Graves. 

Johnson's  appeal  may  be  disposed  of  in  a  few  words.  He  comes 
in  as  a  claimant  of  the  property  in  litigation,  under  his  deed  of  as- 
signment from  the  register,  but  he  has  failed  to  furnish  any  evidence 


Rosa  P.  Graves,  et  al.,  v,  R.  C.  Harris,  et  al.  685 

of  his  appointment,  or  of  the  execution  of  a  conveyance  to  him  as 
assignee,  and  has  therefore  failed  to  manifest  any  right  to  tlie  prop- 
erty or  its  proceeds. 

It  may  be  remarked  upon  the  appeal  of  Mrs.  Graves,  without  en- 
tering into  an  examination  in  detail  of  the  facts  in  the  record,  that 
the  allegation  that  the  mortgage  to  her  was  made  with  the  intention 
to  hinder  or  defraud  the  creditors  of  her  husband  is  unsustained. 
The  only  question  which  we  need  consider  at  any  length  is  whether 
the  mortgage  was  voluntary,  and  on  that  account  invalid,  as  against 
the  creditors  of  George  W.  Graves,  and  the  decision  of  that  question 
must  depend  upon  an  inquiry  into  the  relative  rights  of  Graves  and 
his  creditors  on  the  one  hand  and  Mrs.  Graves  on  the  other  in  the 
interest  of  the  latter  in  her  father's  estate. 

Before  entering  upon  that  question,  however,  we  remark  that  we 
do  not  agree  with  Mrs.  Graves's  counsel  that  in  as  much  as  Harris 
did  not  pay  the  debts  for  which  he  and  George  W.  Graves  were 
jointly  bound,  until  after  the  execution  of  the  mortgage,  he  is  to  be 
treated  as  a  subsequent  creditor,  against  whom  the  mortgage  is  valid 
even  though  it  be  voluntary. 

The  debts  existed  when  the  mortgage  was  made,  and  being  bound 
as  surety  for  their  payment,  Harris,  upon  making  payment,  was 
subrogated  to  the  rights  of  the  creditors,  to  whom  payment  was  made 
to  the  extent  that  he  was  entitled  to  contribution  from  a  co-surety. 

The  conflicting  claims  of  married  women  and  the  creditors  of 
their  husbands  have  been  the  subject  of  repeated  adjudications  by 
this  court,  and  the  principles  upon  which  such  controversies  are  to 
be  decided  seem  now  to  be  well  settled. 

The  right  of  a  wife  to  claim  a  settlement  out  of  estate  descended 
to  her  is  not  confined  to  cases  where  the  chancellor  is  called  upon  to 
subject  such  estate  to  the  payment  of  the  debts  of  the  husband,  but 
may  be  asserted  by  her  by  original  bill.  2  Story's  Equity,  Sec.  1414; 
Chaney  on  Rights  417;  Moore  v.  Moore,  14  B.  Mon.  259.  And  it 
is  now  well  settled  that  even  assignees  of  the  husand  for  value,  of 
the  choses  of  the  wife  may  be  compelled  to  make  a  settlement  upon 
her  out  of  the  estate  assigned.  Thomas  v,  Kennedy,  4  B.  Mon.  235  ; 
Crooks  V.  Turpin,  10  lb.  244 ;  Moore  v,  Moore,  14  lb.  261. 

Counsel  for  the  appellee  therefore  states  the  rule  too  broadly  when 
he  says,  without  qualification,  that  the  law  is  that  the  husband  is  en- 
titled to  the  distributable  share  of  his  wife  in  the  personal  estate 
of  her  father.  The  cases  cited  by  him  in  support  of  that  view  are 
not  analogous  to  this  case.    South  z\  Hay,  3  B.  Mon.  88,  was  a  suit 


686  Kentucky  Opinions. 

by  the  legatees  and  distributees  of  William  Hay  against  his  exe- 
cutors. South,  who  was  one  of  the  executors,  was  the  husband  of 
one  of  the  distributees,  and  the  court  held  that  he  was  not  bound 
to  account  to  any  one  for  his  wife's  share  of  the  estate  which  was 
in  his  hands  as  executor.  No  claim  was  made  by  the  wife  to  a  set- 
tlement, and  all  that  was  there  decided  was  that  the  husband  was 
entitled  in  his  settlement  to  be  credited  by  his  wife's  distributive 
share.  His  election  to  take  a  credit  had  the  same  effect  that  the  re- 
ceipt for  the  money  would  have  had  if  another  had  been  executor, 
so  that  the  case  decides  nothing  more  than  that  when  the  husband 
had  reduced  the  distributive  share  of  the  wife  to  possession  it  be- 
comes his  absolutely. 

In  Miller  v.  Miller,  i  J.  J.  Marsh.  169,  the  husband  being  dead,  the 
question  was  whether  his  administrator  or  his  surviving  wife  was 
entitled  to  money  bequeathed  to  her  during  coverture  and  not  re- 
ceived or  otherwise  disposed  of  by  the  husband  in/  his  lifetime,  and 
it  was  held  the  wife  was  entitled.  That  was  the  only  point  decided 
in  that  case,  and  there  is  nothing  in  the  opinion  touching  the  relative 
rights  of  the  husband  and  wife  or  the  rights  of  the  wife  as  against 
the  husband's  creditors. 

Jones's  Adm'r  v,  Warren's  Adm'r,  4  Dana  33,  was  also  a  contest 
about  the  right  of  survivorship.  The  note  sued  on  in  that  case  by 
the  administrator  of  the  wife  was  executed  to  her  during  coverture, 
and  the  defendant  pleaded  that  her  husband  survived  her  and  was 
still  living  and  that  the  note  belonged  to  him  as  survivor,  and  it  was 
held  by  the  court  that  the  plea  presented  a  bar  to  the  action. 

There  being  nothing  in  the  cases  cited  by  counsel,  or  in  any  known 
to  the  court,  inconsistent  with  the  doctrine  already  announced  upon 
what  we  regard  as  ample  autliority,  that  the  right  of  the  wife  to 
claim  a  settlement  out  of  estate  descended  to  her  may  be  asserted  by 
original  bill  at  any  time  before  it  is  actually  reduced  to  possession 
by  the  husband.  It  cannot  be  doubted  that  Mrs.  Graves  had  a  right 
at  the  time  she  agreed  to  allow  her  interest  settled  upon  her,  thereby 
freeing  it  from  the  control  of  her  husband  and  terminating  his  right 
to  make  it  his  own  by  reducing  it  to  possession  and  removing  it 
forever  beyond  the  reach  of  his  creditors.  Such  a  right  in  Mrs. 
Graves  was  wholly  inconsistent  with  an  absolute  right  in  her  hus- 
band to  the  fund,  and  as  she  might  have  asserted  and  enforced  it  in 
equity  against  both  her  husband  and  his  creditors,  we  see  no  reason 
why  her  husband  might  not  secure  it  to  her  in  the  mode  adopted  by 
them. 


Rosa  P.  Graves,  et  al.,  v,  R.  C.  Harris,  et  al.  687 

When  parties  have  done  for  themselves  only  that  which  the  chan- 
cellor would  have  done  for  them  if  he  had  been  called  upon,  he  will 
not  refuse  to  recognize  its  validity. 

But  it  is  argued  that  although  the  mortgage  may  be  valid  as  to 
the  sum  of  $1,367.09,  the  balance  due  on  Graves's  note  and  which 
was  paid  by  Mrs.  Graves  on  the  i8th  of  April  by  a  credit  on  the 
amount  due  from  her  mother  for  her  interest  in  the  land,  and  which 
the  husband  never  reduced  to  possession,  it  is  voluntary  and  invalid 
as  to  the  residue.  This  argument  is  that  the  credit  on  the  husband's 
note,  and  the  receipt  given  by  both  husband  and  wife  for  the  amount, 
reduced  that  much  of  her  interest  to  the  possession  of  the  husband, 
and  that  when  it  came  into  his  possession  it  was  absolutely  his,  freed 
from  all  equity  in  her,  and  could  no  more  be  legally  settled  upon  her 
afterward  than  any  other  money  or  property  owned  by  the  husband. 

This  argument  gives  no  effect  whatever  to  the  established  fact 
that  before  the  husband  received  the  credit,  and  before  the  wife 
would  consent  to  that  appropriation  of  the  fund,  the  husband  agreed 
that  if  she  would  consent  he  would  secure  the  amount  to  her  by 
mortgage ;  nor  to  the  further  fact  that  a  mortgage  was  made  which 
was  a  complete  execution  of  the  agreement,  and  that  his  creditors 
are  now  in  a  court  of  equity  asking  that  that  executed  agreement 
be  set  aside  for  their  benefit. 

In  Maraman  v,  Maraman,  4  Met.  84,  cited  and  relied  upon  by 
counsel  for  Harris,  Mrs.  Maraman  was  forced  to  invoke  the  aid  of 
the  chancellor  to  enforce  the  notes  she  held  on  her  deceased  husband, 
and  the  administrator,  who  stood  in  the  room  and  stead  of  creditors 
as  far  as  was  necessary  to  secure  the  payment  in  full  of  their  debts, 
stood  on  the  defensive  armed  with  an  equity  in  other  creditors  equal 
to  Mrs.  Maraman's  equity,  and,  in  addition,  with  a  legal  right  which 
she  did  not  have. 

Another  distinction  between  that  case  and  this,  it  seems  to  us,  is, 
that  the  proceeds  of  the  sales  of  the  wife's  land  and  slaves,  which  her 
husband  attempted  to  secure  to  her  by  his  notes,  were  paid  over  to 
and  used  by  him  at  his  discretion ;  but  in  this  case  the  wife's  money, 
instead  of  being  paid  to  the  husband,  was,  at  his  request,  paid  by  her 
direction  upon  a  subsisting  debt  against  him,  and  we  incline  to  the 
opinion  that  she  is  entitled  to  be  substituted  to  the  rights  of  the 
creditor  to  whom  the  money  was  paid. 

But  we  rest  our  decision,  as  to  the  $1,000  credited  on  the  note, 
upon  the  ground  that  the  husband's  promise  to  secure  that  sum  to 
his  wife  by  a  mortgage  gave  her  an  equitable  right,  as  against  him, 


688  Kentucky  Opinions. 

to  have  that  agreement  performed,  and  that  when  it  was  fully  exe- 
cuted his  creditors  could  only  reach  it  through  the  aid  of  a  court  of 
equity,  as  it  rested  upon  a  sufficient  consideration  to  uphold  it. 

There  are  other  creditors  besides  Harris  whose  rights  are  involved 
in  this  appeal,  but  as  they  all,  except  Hutchinson,  who  holds  a  prior 
mortgage,  stand  upon  the  same  ground  with  Harris,  we  have 
found  it  more  convenient  in  considering  the  case  to  treat  it  as  if  he 
was  the  only  appellee,  but  what  we  have  said  as  to  him  is  intended 
to  apply  to  all  except  Hutchins. 

The  judgment  is  affirmed  as  to  Johnson,  but  is  reversed  as  to  Mrs. 
Graves,  and  the  cause  is  remanded  with  directions  to  render  a  judg- 
ment in  conformity  with  this  opinion,  and  to  adjudge  to  Harris  any 
balance  remaining  after  satisfying  the  mortgages  of  Hutchins  and 
Mrs.  Graves. 

C.  S,  Hill,  C.  H,  Johnston,  for  appellants, 
R.  H.  Rountree,  for  appellees. 


Mary  S.  Harrison's  Trustee  v,  John  Kuntz. 

Distress  Warrant — Landlord  and  Tenant — Pleading — Exemption. 

Where  a  distress  warrant  is  issued  at  the  instance  of  a  landlord 
against  the  goods  of  his  tenant,  and  pleading  by  the  tenant  is  de- 
fective which  avers  that  at  the  time  of  the  levy  and  sale  he  was  a 
bona  fide  housekeeper  with  a  family  and  that  the  personal  property 
seized  and  sold  was  by  law  exempt  from  seizure  and  sale  under  a 
distress  warrant,  the  pleader  should  have  stated  what  number  or 
quantity  of  each  character  of  personal  property  levied  on  he  owned 
at  the  time  of  the  seizure  so  that  the  court  might  determine  whether 
the  property  taken  was  exempt. 

Exemption. 

A  contract  not  to  claim  the  benefit  of  the  exemption  is  executory 
and  does  not  bind  the  appellee. 

APPBAX.  PROM  BULLITT  CIRCUIT  COURT. 

April  26,  1876. 

Opinion  by  Judge  Lindsay  : 

In  order  to  enable  a  tenant  whose  property  has  been  seized  and 
sold  under  a  distress  warrant  sued  out  by  his  landlord,  to  recover 
under  the  provisions  of  the  4th  and  Sth  sections  of  the  Act  of  March 
7,   1 87 1,  Sess.  Acts   1 87 1,  Vol.   i,  p.  44,  it  is  necessary  that  his 


Mary  S.  Harrison's  Trustee  v,  John  Kuntz.  689 

traverse  shall  either  controvert  the  material  averments  of  the  affi- 
davit upon  which  the  warrant  was  based,  or  if  the  warrant  was  prop- 
erly sued  out,  shall  set  up  affirmatively  such  facts  as  rendered  the 
levy  and  sale  illegal. 

The  traverse  in  this  case,  in  effect,  concedes  that  the  appellee  was 
indebted  to  his  landlord  in  the  sum  of  at  least  seventy-five  dollars, 
and  that  the  same  was  due  and  payable  in  money,  when  the  warrant 
was  sued  out.  The  traverser  avers  that  at  the  time  of  the  levy  and 
sale  he  was  a  bona  fide  housekeeper  with  a  family,  and  that  the  per- 
sonal property  seized  and  sold  was  by  law  exempt  from  seizure  and 
sale  under  execution  or  distress  warrant. 

Whether  or  not  it  was  exempt  is  a  question  of  law.  If  he  owned 
more  than  two  horses,  or  more  than  one  wagon,  or  more  than  two 
cows,  or  more  than  the  number  of  stores,  fowls,  hogs,  &c.,  that  are 
exempted  by  statute,  then  the  officer  had  the  right  to  seize  and  sell 
the  property,  for  the  value  of  which  the  traverser  is  here  seeking  a 
recovery.  The  presumption  of  law  is  that  the  officer  did  not  levy 
upon  property  not  subject  to  seizure  and  sale,  and  in  order  to  over- 
come that  presumption  it  was  necessary  that  appellee  should  have 
stated  what  number  or  quantity  of  eacli  character  of  personal  prop- 
erty levied  on  he  owned  at  the  time  of  the  seizure,  so  that  the  court 
might  have  determined  whether  or  not  the  property  taken  was 
exempt. 

The  instruction  given  for  appellee  was  erroneous.  It  did  not  in- 
form the  jury  what  property  is  exempt  from  the  payment  of  debt ; 
and  besides  the  traverse  sets  out  no  cause  of  action  on  that  branch 
of  the  controversy.  The  terms  of  the  lease  cannot  be  specifically  en- 
forced. The  contract  not  to  claim  the  benefit  of  the  exemption  law 
remained  executory  and  does  not  bind  the  appellee. 

But  if  it  shall  finally  turn  out  that  the  seizure  and  sale  of  the 
property  was  a  trespass,  the  estate  of  the  cestui  que  trust,  Mary  L. 
Harrison,  cannot  be  subjected  to  the  satisfaction  of  the  damages  re- 
sulting from  the  wrong  of  her  trustee,  unless  it  shall  be  made  to  ap- 
pear that  she  actually  participated  in  procuring  the  trespass  to  be 
committed. 

The  judgment  is  reversed  and  the  cause  remanded  for  further 
proceedings  not  inconsistent  with  this  opinion. 

R,  H.  Field,  J.  &J,  W.  Rodman,  for  appellant. 
E.  E.  Pate  and  R.  /.  Meyler,  for  appellee. 


44 


690  Kentucky  Opinions. 

Louisville  &  Nashville  R.  Co.  v.  Luther  G.  Hall. 

Judgment — Collection  of  Judgment  Against  Corporation. 

The  holder  of  a  judgment  against  a  railroad  corporation  may  com- 
pel the  company  or  its  officers  and  agents  to  disclose  and  surrender 
its  property,  choses  in  action  or  equitable  or  legal  interests  which  it 
may  own  or  which  are  held  by  or  for  it  by  strangers. 

• 

Attachment. 

In  the  colleotion  of  a  Judgment  against  a  railroad  corporation  it  is 
error  for  the  court  to  award  an  order  of  attachment  against  the  presi- 
dent and  directors  of  the  company,  without  first  bringing  them  into 
court  as  garnishees  and  ascertaining  whether  they  had  money  or 
property  of  the  defendant  In  their  possession  or  under  their  control. 

APPEAL  FROM  NELSON  CTRCUIT  COURT. 

April  27,  1876. 

Opinion  by  Judge  Lindsay  : 

This  IS  a  suit  in  equity  to  enforce  the  judgment  rendered  in  the 
ordinary  action  of  Luther  G.  Hall  v.  Louisville  &  Nashville  and 
Great  Southern  Railroad  Co,,  which  judgment  we  have  this  day 
affirmed.  The  defendant  is  styled  "The  Louisville  &  Nashville  & 
Great  Southern  Railroad  Company,  alias  The  Louisville  &  Nashville 
Railroad  Company."  As  it  declined  in  the  ordinary  action  to  dis- 
close its  true  name,  it  cannot  complain  that  the  appellee  has  not  yet 
learned  what  it  is.  The  question  of  names,  however,  can  cut  no 
figure  in  this  proceeding.  That  question  is  concluded  by  the  course 
pursued  by  the  appellant  in  the  ordinary  action. 

The  appellee  has  the  right  to  enforce  the  collection  of  its  judgment 
at  law,  by  compelling  the  company  or  officers  or  agents  to  disclose 
and  surrender  any  property,  choses  in  action,  or  equitable  or  legal 
interest  in  any  property,  which  it  may  own,  or  they  may  hold  for  it, 
and  to  disclose  the  existence  of  any  such  property,  held  by  or  for  it, 
by  strangers  or  persons  now  in  his  employ. 

But  it  was  error  in  this  action  to  render  a  second  judgment  against 
the  appellant.  The  judgment  at  law  may  be  enforced,  but  a  judg- 
ment in  equity  founded  on  that  judgment  is  neither  necessary  nor 
proper.  It  was  also  error  to  award  an  order  of  attachment  against 
the  president  and  directors  of  the  company,  without  first  bringing 
them  into  court  as  garnishees,  and  ascertaining  whether  or  not  they 
had  money  or  property  of  the  defendant  in  their  possession  or  under 
their  control. 


A.  Cleary  v.  John  G.  Offutt.  691 

Judgment  reversed  and  cause  remanded  for  further  proceedings 
not  inconsistent  with  this  opinion. 

William  Johnson,  for  appellant. 
Muir  &  IVickliffe,  for  appellee. 


A.  Cleary  v.  John  G.  Offutt. 

Bill  of  Ezceptions— Practice. 

Unless  a  rejected  pleading  Is  made  part  of  the  record  by  bill  of  par- 
ticulars or  order  of  the  court  the  clerk  has  no  right  to  copy  it  in  a 
transcript  and  .it  will  not  be  considered  by  the  appellate  court. 

APPEAL  FROM  SPENCER  CIRCUIT  COURT. 

April  28,  1876. 

Opinion  by  Judge  Lindsay  : 

The  answer  which  appellant  proposed  to  file  is  not  made  a  part  of 
the  record.  A  paper  purporting  to  be  a  copy  thereof  was  incorpo- 
rated in  the  record  by  the  clerk,  but  that  paper  cannot  be  considered 
by  this  court.  Unless  a  rejected  pleading  is  made  a  part  of  the  rec- 
ord, by  order  of  court,  or  bill  of  exception,  the  clerk  has  no  right  to 
copy  it  in  a  transcript  intended  for  this  court.  We  cannot  therefore 
determine  whether  or  not  appellant  had  a  just  or  legal  ground  of  de- 
fense, or  that  he  was  other  than  a  nominal  party  to  the  action. 

Besides,  his  affidavit  states  merely  that  he  was  kept  away  from 
court  by  sickness.  He  does  not  state  that  he  or  any  one  of  his  family 
was  sick,  nor  that  he  was  unable  to  get  to  the  court  house,  or  that 
any  one  was  sick  enough  to  need  his  attention. 

The  action  of  the  circuit  court  in  refusing  to  set  aside  the  judg- 
ment was  proper. 

Judgment  affirmed, 

T,  J.  Barker,  for  appellant.    J.  H,  Beauchamp,  for  appellee. 


W.  P.  CUNDIFF,  ET  AL.,  V.  W.  B.  CUNDIFF,  ET  AL. 


Wills— Resisting  Probate  of  Wills — Expenses  Incurred. 

An  executor  who  has  in  good  faith  attempted  to  sustain  a  will  is 
entitled  to  his  costs  out  of  the  estate. 


692  Kentucky  Opinions. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

April  29,  1876. 

Opinion  by  Judge  Cofer  : 

The  order  discharging  the  rule  against  the  appellees  to  bring  into 
court  the  watches  and  chains  referred  to  is  not  a  final  order,  and  the 
circuit  court  still  has  power  to  inquire  through  its  commissioner  or  in 
such  other  manner  as  it  may  think  best  into  the  question  whether 
the  watches  and  chains  are  worth  more  than  the  amount  at  which 
they  were  estimated  by  the  appraisers,  and  to  charge  the  orders  with 
such  sum  as  it  shall  ascertain  the  several  articles  to  be  worth. 

Counsel  concedes  the  general  rule  to  be  that  an  executor  who 
has  in  good  faith  attempted  to  sustain  a  will  is  entitled  to  his  cost 
out  of  the  estate,  but  claims  that  the  effort  to  sustain  the  will  of  J. 
B.  Cundiff  was  not  in  good  faith  and  therefore  that  the  nominated 
executrix  had  no  right  to  be  reimbursed  her  expenses. 

The  will  was  probated  in  the  county  court  and  upon  full  hearing 
on  appeal  to  the  circuit  court  it  was  sustained  by  the  verdict  of  a  jury 
and  the  judgment  of  the  court.  Those  facts  are  sufficient  to  show 
that  there  was  sufficient  evidence  of  the  genuineness  and  validity  of 
the  will  to  make  it  the  duty  of  the  executrix  named  therein  to  make 
an  effort  to  have  it  probated,  and  as  such  was  her  duty  she  is  entitled 
to  her  cost  in  that  behalf,  legal  and  extraordinary.  That  she  was 
more  interested  than  any  other  person  in  sustaining  the  will  does  not 
lessen  her  right  to  her  costs ;  something  is  due  as  well  to  the  testator 
as  to  the  devisee,  and  the  nominated  executor  owes  it  not  only  to 
himself  but  to  the  other  beneficiaries  and  to  the  testator  when  there 
are  reasonable  grounds  to  believe  that  the  will  can  be  sustained,  to 
make  the  effort. 

We  will  not  therefore  look  into  the  evidence  heard  on  the  trial  of 
the  issue  of  will  or  no  will,  but  accept  the  result  of  the  trial  in  the 
circuit  court  as  sufficient  to  entitle  the  nominated  executrix  to  her 
costs.    Judgment  ofRrmed. 

R.  /.  Megler,  for  appellants,    W.  R.  Thompson,  for  appellees. 


Mr.  Vernon  Banking  Co.  v.  H.  P.  Randolph,  et  al. 

Attorney's  Pees — Promissory  Notes. 

Conditional  contracts  Inserted  In  the  body  of  prwnlssory  notes  to 
pay  attorney  fees  if  legal  process  Is  resorted  to  to  collect  the  note  are 
not  oiforcible. 


Mt.  Vernon  Banking  Co.  v.  H.  P.  Randolph,  et  al.      693 

APPBALi  FROM  HENDERSON  CIRCUIT  COURT. 

April  29,  1876. 

Opinion  by  Judge  Lindsay  : 

In  the  case  of  Thoniasson  z\  Toumsend,  10  Bush  114,  this  court 
held  that  an  undertaking  of  like  import  with  th€  one  embodied  in  the 
note  here  sued  on,  to  wit,  "Should  the  payment  of  this  note  be 
enforced  by  legal  process,  the  judgment  shall  include  the  attorney's 
fee  for  collecting  the  same,"  was  inconsistent  with  the  policy  of  our 
laws. 

In  that  view  of  the  subject  such  contracts  will  not  be  enforced  by 
the  courts  of  this  state,  no  matter  where  they  may  have  been  entered 
into.  It  is  manifest  upon  the  face  of  the  note  that  this  undertaking 
constitutes  no  part  of  the  indebtedness  of  the  obligors  to  the  payee. 
It  is  in  the  nature  of  a  penalty  for  the  non-payment  of  money,  and 
will  be  relieved  against  upon  the  payment  of  the  principal  and  inter- 
est of  the  debts.  Damages  in  the  way  of  counsel  fees  for  the  breach 
of  contracts  were  never  recoverable  at  the  common  law.  Sedgwick 
on  Damages,  side  page  96.  Our  statutes  have  changed  the  common- 
law  rule  to  the  extent  of  fixing  the  sums  that  may  be  awarded  as 
damages  in  the  way  of  attorney's  fees.  These  statutes  determine 
the  duty  of  the  courts  in  this  regard.  This  duty  cannot  be  enlarged 
or  extended  by  contracts  entered  into  under  the  laws  of  the  state  of 
Indiana. 

We  recognize  to  the  fullest  extent  the  rule  that  the  lex  loci  con- 
tractu controls  the  nature,  construction  and  validity  of  a  contract. 
But  it  does  not  control  or  in  any  way  affect  the  remedy  allowed  in  the 
county  in  which  it  is  in  suit ;  nor  does  it  impose  upon  the  courts  of 
that  county  the  duty  of  holding  valid  and  enforcible  a  contract 
which  contravenes  the  policy  of  its  laws.  As  we  have  already  seen,, 
the  contract  under  consideration,  so  far  as  it  contemplates  the  pay- 
ment of  a  greater  sum,  as  an  attorney's  fee,  than  is  fixed  and  allowed 
by  our  statutes,  is  inconsistent  with  and  contrary  to  the  policy  of  our 
laws.  The  legal  attorney's  fee  was  adjudged  by  the  court  below,  and 
it  properly  refused  to  adjudge  a  greater  sum.    Judgment  affirmed. 

H.  F.  Tumer\  for  appellant.    Eaves  &  Prentice,  for  appellees. 


694  Kentucky  Opinions. 

James  A.  Huffaker,  et  al.,  v.  Bank  of  Monticello. 

Pleading — Petition  on  Promissory  Note— Averments  Necessary. 

In  declaring  upon  a  promissory  note  the  pleader  must  set  out  tbe 
material  stipulations  of  the  promise  and  its  breach,  and  a  failure  to 
do  so  will  not  be  cured  by  filing  the  note  as  a  part  of  the  petition. 

APPEAL  FROM  JEFFERSON  COURT  OF  COMMON  PLEAS. 

May  2,  1876. 

Opinion  by  Judge  Lindsay  : 

Appellee  avers  in  the  first  paragraph  of  its  petition  that  Edwin 
Hirffalcer  &  Shy  "are  indebted  to  plaintiffs  in  the  sum  of  one  thou- 
sand eight  hundred  dollars  upon  the  note  of  said  Edwin  Huffaker  & 
Shy,  No.  337,  date  May  2,  1874,  payable  ninety  days  thereafter  to 
Walton  &  Bros.,  and  discounted  and  transferred  to  plaintiff  by  en- 
dorsement of  said  Walton  &  Bros,  on  the  bank  thereof,"  etc. 

When  this  allegation  is  analyzed  it  will  be  found  that  the  substan- 
tial facts  averred  are,  i.  That  the  note  referred  to  is  the  note  of  Ed- 
win Huffaker  &  Shy  to  Walton  &  Bros. ;  2.  that  it  bears  date  May  2, 
1874,  and  became  due  ninety  days  thereafter ;  and  3.  that  it  had  been 
sued  and  transferred  by  the  payees  to  the  plaintiff. 

Appellee  fails  to  state  in  terms  that  the  note  contained  or  evidenced 
a  promise  upon  the  part  of  the  payors  to  pay  any  sum  of  money  to 
the  payees.  But  if  that  agreement  or  promise  can  be  supplied  by  im- 
plication or  intendment,  there  is  still  an  utter  failure  to  state  the  sum 
agreed  to  be  paid.  The  averment  that  the  makers  of  the  note  are 
indebted  to  the  plaintiffs  in  the  sum  of  eighteen  hundred  dollars  upon 
said  note,  is  but  the  statement  of  a  conclusion  of  law.  If  the  note  evi- 
denced a  promise  to  pay  that  sum  of  money,  then  this  conclusion  of 
law  is  correct;  but  if  in  order  now,  then  it  is  incorrect,  and  as  the 
petition  does  not  set  out  the  promise,  even  in  the  most  general  terms, 
it  is  impossible  for  the  court  to  determine,  from  what  the  pleader 
states,  whether  the  facts  do  or  not  support  his  legal  conclusion. 

In  declaring  upcxi  an  express  promise  to  pay  money,  the  material 
stipulations  of  the  promise  must  be  substantially  set  out  by  the 
pleader,  and  a  failure  in  this  respect  will  not  be  cured  by  filing  the 
note  or  obligation  declared  on  as  part  of  the  petition.  The  petition 
must  state  the  facts  constituting  the  cause  of  action.  Hill  v.  Barrett, 
et  al.,  14  B.  Mon.  83 ;  Dodd  v.  King,  1  Met.  430.  These  cases  are 
not  overruled  by  the  opinion  in  the  case  of  Burton,  et  al.  v  White's 
Adtn'r,  i  Bush  9.  In  that  case  this  court  refused  to  reverse  because 


S.  LiTTLEFIELD  V.  JaMES  ZaNONE,  £T  AL.  695 

the  petition  failed  to  state  the  time  at  which  the  note  sued  on  became 
due  and  payable,  holding  that  the  note  which  was  filed  with  and  made 
part  of  the  petition  might  be  considered  for  the  purpose  of  ascer- 
taining whether  or  not  the  debt  was  due  when  the  action  was  insti- 
tuted. 

There  is  no  intimation  that  the  note  would  have  been  considered 
for  the  purpose  of  ascertaining  what  the  terms  and  conditions  of  the 
promise  were.  If  the  provisions  of  Sec.  145,  of  the  Civil  Code  of 
Practice,  when  complied  with,  make  the  note,  bond,  or  bill  filed,  liter- 
ally a  part  of  the  petition,  the  pleader  need  only  refer  to  the  evidence 
of  indebtedness,  and  leave  it  to  tell  its  own  story,  and  that  the  debt 
has  not  been  paid.  The  case  of  Burton,  et  al.,  v.  White's  Admr.  has 
not  been  so  understood  by  this  court,  and  we  do  not  recollect  that  it 
has  ever  been  followed  even  to  the  extent  its  language  seems  to 
warrant. 

A  petition  founded  upon  a  promissory  note  must  so  set  out  the 
promise,  its  terms,  and  its  breach,  as  to  enable  the  court  to  render 
a  judgment  upon  the  failure  of  the  payors  to  make  defense,  without 
being  compelled  to  refer  to  the  note  on  file  to  ascertain  those  facts. 
We  are  of  opinion  that  the  first  paragraph  of  the  petition  in  this  case 
is  insufficient  in  law,  and  that  the  general  demurrer  thereto  was  im- 
properly overruled. 

Judgment  reversed  and  cause  remanded  with  instructions  to  sus- 
tain said  demurrer,  and  then  for  further  proceedings  not  inconsistent 
with  this  opinion. 

Gibson  &  Gibson,  for  appellants. 

/.  5*.  Vanwinkle,  Alexander  &  Dickinson,  for  appellee. 


S.  LiTTLEFIELD  V.  JaMES  ZaNONE,  ET  AL. 

Bankruptcy — Effect  of  Discharge — State  Court's  Power. 

A  discharge  in  bankruptcy  granted  by  the  district  court  of  the 
United  States,  exonerates  the  person  discharged  from  the  payment 
of  debts  and  the  state  court  ^has  no  power  to  set  aside  or  disregard 
It.  If  the  discharge  was  procured  by  fraud,  the  federal  court  alone 
can  give  relief. 

APPEAL  FROM  LIVINGSTON  CIRCUIT  COURT. 

May  3,  1876. 

Opinion  by  Judge  Lindsay  : 

The  discharge  in  bankruptcy  granted  by  the  district  court  of  the 


696  Kentucky  Opinions. 

United  States  to  James  Zanone  exonerated  him  from  the  payment  of 
all  the  debts  theretofore  owingf  by  him  to  Littlefield.  The  state  court 
had  no  power  to  set  aside  or  disregard  said  discharge.  If  it  was 
procured  by  fraud,  Littlefield's  remedy  was  to  have  it  set  aside  by 
proceedings  in  the  district  court,  commenced  within  two  years  after 
it  was  granted. 

It  is  true  that,  notwithstanding  the  discharge,  Zanone  was  still 
under  a  sufficient  moral  obligation  to  Littlefield  to  support  any  prom- 
ise he  might  make  to  pay  the  debts  owing  to  him,  and  if  he  had 
made  such  a  promise,  his  wife,  the  present  appellee,  might,  by  proper 
conveyances  have  bound  her  real  estate  to  secure  its  performance. 
But  the  difficulty  in  this  case  is  that  the  record  does  not  show  anv 
such  promise  upon  the  part  of  said  Zanone. 

The  promises  sued  on  and  sought  to  be  enforced  are  the  promis- 
sory notes  of  Mary  Zanone.  She  does  not,  in  express  terms,  plead 
and  rely  on  her  coverture ;  but  the  petition  of  Littlefield  shows  that 
she  was  a  married  woman  at  the  time  he  instituted  his  original 
action,  and  his  deposition  shows  that  she  was  a  married  woman  at 
the  time  the  notes  were  made  and  delivered.  Such  being  the  case, 
said  notes  were  absolutely  void  as  to  Mrs.  Zanone  and  as  they  were 
not  signed  by  her  husband,  they  did  not,  of  course,  bind  him.  Little- 
field, therefore,  has  sued  a  married  woman  upon  a  void  contract,  and 
seeks  to  sell  her  real  estate  for  the  purpose  of  satisfying  a  non-en- 
forceable claim.  At  the  time  of  the  institution  of  his  action,  he  held 
no  valid  claim  against  either  the  wife  or  the  husband. 

If  the  notes  sued  on  had.  as  matter  of  fact,  been  executed  for  the 
purchase  price  of  the  realty  conveyed  by  Littlefield  to  Mrs.  Zanone. 
equity  would  compel  her  either  to  pay  the  same  or  submit  to  a  rescis- 
sion of  the  contract  of  sale.  But  Littlefield  shows  by  his  own  dq^osi- 
tion  that  he  was  not  at  anv  time  the  owner  of  said  realty.  The  con- 
vevances  first  from  Mrs.  Zanone  to  him,  and  then  from  him  back 
to  her.  by  retaining  a  lien,  were  intended  to  operate  as  a  mere  secur- 
ity and  said  conveyances  will  be  treated  as  in  law  a  mortgage,  ex- 
ecuted by  a  married  woman  for  the  sole  purpose  of  securing  the  per- 
formance of  a  void  contract. 

As  Littlefield  has  no  right  to  recover  on  the  notes  sued  on.  of 
course  his  security,  >yhich  is  a  mere  incident  to  said  notes,  cannot  be 
made  available  to  him  for  any  purpose  whatever.  The  court  below, 
therefore,  did  not  err  in  refusing  to  subject  to  the  payment  of  said 
void  notes  the  Gower  property.    In  this  view  of  the  case  we  need  not 


Anna  Webb  v,  J.  W.  Forman.  697 

inquire  as  to  the  rights  of  Mrs.  Zanone  under  the  act  to  exempt 
homesteads  from  the  payment  of  debts. 
Judgment  affirmed. 

Bush  &  Hendricks,  for  appellant. 
Campbell  &  Greer,  for  appellees. 


Anna  Webb  v.  J.  W.  Forman. 

Marriage  Contract — Capacity  of  Party  to  Contract. 

A  person  having  a  living  husband  from  whom  she  has  not  been 
divorced  cannot  make  a  binding  contract  to  marry  another  condi- 
tioned upon  a  divorce  being  granted. 

Capacity  to  Contract. 

The  same  capacity  is  required  to  make  a  contract  to  marry  upon  a 
contingency  that  is  requisite  to  make  an  absolute  contract  to  foarry 
at  a  future  time.  A  contract  must  be  valid  when  entered  into  or  It 
never  can  be  valid. 

APPEIAL  FROM  BULLITT  CIRCUIT  COURT. 

May  4,  1876. 

Opinion  by  Judge  Cofer  : 

At  the  time  of  making  the  alleged  agreement  to  marry,  the  appel- 
lant had  a  living  husband  from  whom  she  had  not  been  divorced,  and 
she  was  therefore  legally  incapacitated  to  make  a  valid  contract  for 
a  second  marriage.  Counsel,  in  effect,  concede  that  such  is  the  law 
in  regard  to  an  absolute  and  unconditional  agreement,  but  they  seek 
to  establish  a  distinction  between  such  an  agreement  and  one  de- 
pending upon  a  future  contingency.  We  can  see  no  room  for  the 
supposed  distinction.  The  same  legal  capacity  is  required  to  make  a 
contract  to  marry  upon  a  contingency  that  is  requisite  to  make  an 
absolute  contract  to  marry  at  a  future  period.  A  contract  must  be 
valid  when  entered  into,  or  it  never  can  be  so. 

The  fact  that  suit  for  a  divorce  was  pending,  and  that  a  judgment 
therefor  was  afterwards  obtained,  cannot  affect  the  question.  Until 
a  divorce  was  actually  granted,  the  appellant  was  under  all  the  dis- 
abilities incident  to  coverture,  and  her  agreement  to  marry  the  ap- 
pellee was  a  nullity,  and  his  agreement  to  marry  her  was  without 
consideration.  There  can  be  no  such  thing  as  an  agreement  to  marry 
which  is  valid  as  to  one  party  and  void  as  to  the  other. 


698  Kentucky  Opinions. 

Nor  do  we  think  the  appellant  can  maintain  an  action  on  the 
agreement  set  forth  in  the  second  paragraph  of  her  petition.  It  is 
true  that  she  alleges  compliance  on  her  part,  and  that  in  consideration 
thereof  the  appellee  undertook  and  agreed  to  furnish  her  and  her 
children  with  a  home ;  and  it  is  also  true,  as  a  general  rule,  that  when 
in  consideration  that  one  under  disability  will  do  a  certain  act,  one 
under  no  disability  promises  and  agrees  to  do  an  act  or  to  pay  a  sum 
of  money,  and  the  former  performs  the  agreement,  the  latter  cannot 
set  up  the  disabiUty  when  sued  for  non-performance  on  his  part. 

But  the  demurrer  in  this  case  calls  the  petition  in  question  upon 
every  ground,  and  if  it  is  bad  upon  any  the  judgment  must  be 
affirmed.  The  appellant  could  not  lawfully  contract  to  marry  the  ap- 
pellee, and  she  had  no  legal  right  to  enter  into  communication  with 
him  looking  to  a  marriage  after  a  divorce  should  be  obtained;  so 
long  as  she  remained  in  law  the  wife  of  another,  the  law  must  refuse 
to  recognize  as  valid,  or  to  lend  any  assistance  whatever  for  the  en- 
forcement of  an  agreement  inconsistent  with  her  legal  status. 

Although  she  had  been  abandoned  by  her  husband  without  fault 
on  her  part,  as  long  as  the  relation  of  husband  and  wife  subsisted 
between  them  a  reconciliation  and  a  resumption  of  his  marital  rights 
and  duties  was  possible,  and  public  policy  will  not  permit  us  to  sanc- 
tion or  enforce  an  agreement,  the  whole  tendency  of  which  was  to 
prevent  a  reconciliation  between  her  and  her  husband. 

The  facts  as  stated  in  the  petition  bear  with  equal  force  upon  the 
appellee  as  upon  the  appellant,  and  it  is  not  out  of  regard  for  him 
that  the  law  will  not  compel  him  to  answer  in  damages  for  a  breach 
of  his  agreement.  If  he  had  paid  her  a  sum  of  mon^,  or  had  con- 
veyed her  his  farm,  in  consideration  that  she  would  leave  Louisville 
and  go  to  Mt.  Washington  in  order  that  he  might  more  conveniently, 
and  at  less  expense,  enjoy  her  society,  and  he  was  in  court  asking 
damages  for  a  breach  of  the  agreement  on  her  part,  he  would  not  be 
heard. 

The  law  intends  to  encourage  the  settlement  of  domestic  broils, 
and  the  healing  of  breaches  between  husbands  and  wives,  and  dis- 
countenances, by  all  proper  means,  everything  calculated  to  produce 
or  keep  alive  conjugal  estrangement;  and  it  would  be  destructive  of 
that  purpose  of  the  law  to  award  damages  for  the  breach  of  agree- 
ments like  those  set  up  in  this  case. 

Judgment  affirmed. 

IV,  R.  Thompson,  /.  W.  Cropn,  E.  D.  Purdy,  for  appellant. 
R.  H.  Field,  R.  J.  Meyler,  for  appellee. 


John  W.  Bell's  Assignee  v.  Bettie  Merriweather.      699 

John  W.  Bell's  Assignee  v.  Bettie  Merriweather. 

Usury — Disaffirmance  and  Recovery  Back. 

One  who  has  paid  usury  may  disaffirm  and  maintain  an  action  to 
recover  it  back,  but  is  under  no  obligation  to  his  creditors  to  exer- 
cise such  right 

Assignee's  Right  to  Recover  Back  Usurious  Interest. 

Before  an  assignee  can  reach  and  recover  back  usurious  interest 
paid  by  the  assignor,  it  is  necessary  for  him  to  show  that  his  as- 
signor has  elected  that  such  right  shall  be  enforced. 

APPEAL  FROM  SHELBY  CIRCUIT  COURT. 

May  4,  1876. 

Opinion  by  Juixse  Lindsay  : 

This  action  was  instituted  by  Harboson,  assignee  of  Bell,  to  re- 
cover from  Bettie  Merriweather  certain  sums  of  money  alleged  to 
have  been  paid  by  Bell  to  her  in  the  way  of  usurious  interest.  Har- 
boson avers  that  he  is  the  assignee  of  said  John  W.  Bell,  and  was 
constituted  and  appointed  as  such  by  a  deed  of  general  assignment 
for  the  benefit  of  his  creditors,  made  and  executed  by  said  Bell  in 
the  day  of  September  1874,  and  by  virtue  of  said  deed,  he  is  author- 
ized to  collect  the  debts  owing  to  said  Bell.  The  conveyance  is  not 
on  file  in  the  record. 

The  primary  question  is  whether  the  statement  of  facts  above 
quoted  shows  a  right  of  action  in  Harboson.  Construing  his  lan- 
guage with  the  utmost  liberality,  we  cannot  conclude  that  the  deed 
of  assignment  operates  further  than  to  transfer  to  him.  all  the  legal 
and  equitable  estate  of  Bell,  and  to  authorize  him  to  see  for  and 
collect  the  debts  owing  to  Bell  at  the  time  of  its  execution  and  de- 
livery. There  is  nothing  in  the  petition  tending  to  show  that  the 
usury  was  not  paid  by  Bell,  voluntarily  and  without  mistake  or 
fraud.  The  contract  to  pay  it  was  not  enforceable,  but  the  payment 
itself  was  not  void.  Bell  might,  if  he  had  chosen  so  to  do,  have  dis- 
affirmed the  payment  and  maintained  an  action  to  recover  back  the 
sum  paid.  But  as  this  was  with  him  a  mere  matter  of  conscience, 
he  was  under  no  legal  obligation  to  his  creditors  to  exercise  that 
right.  Hence,  before  his  creditor  or  his  assignee  can  reach  the  usury 
in  the  hands  of  Merriweather,  it  is  necessary  that  it  shall  be  shown 
that  Bell  has  elected  that  his  statutory  right  to  reclaim  it  shall  be 
enforced. 

Harboson  does  not  aver,  in  terms,  that  Bell  has  so  elected,  or  that 


700  Kentucky  Opinions. 

he  is  prosecuting  this  action  with  his  (Bell's)  approval  and  consent; 
nor  does  he  state  that  the  right  of  Bell,  in  regard  to  this  usury,  was 
specifically  transferred  to  him  by  the  deed  of  assignment  under 
which  he  claims.  We  have  already  said  that  we  will  not  presume 
that  the  deed  passed  to  Harboson  anything  more  than  the  legal  and 
equitable  estate  of  the  grantor.  A  conveyance  or  assignment  of  legal 
and  equitable  estate  does  not  transfer  the  right  of  the  grantor  or 
assignor  to  sue  for  usury.  Breckenridge  v.  Churchill,  3  J.  J.  Marsh. 
II. 

Upon  the  authority  of  the  case  cited  and  of  the  subsequent  cases 
of  Estill  V.  Rodes,  et  al,  1  B.  Mon.  314;  Graham,  et  al.,  v.  Moore, 
ct  al,  7  B.  Mon.  53,  and  Lee  v.  Fellows  &  Co,,  10  B.  Mon.  117,  we 
are  constrained  to  conclude  that  Harboson  failed  by  his  petition  to 
show  a  right  in  himself  to  prosecute  the  action  and  that  upon  this 
ground,  if  upon  no  other,  the  court  below  properly  refused  to  render 
a  judgment  in  his  favor. 

Judgment  affirmed, 

Bullock  &  Beckham,  for  appellant, 
A,  /.  James,  for  appellee. 


John  R.  Lambert  v.  George  Smith. 

Conversion  of  Personal  Property — Pleading — Evidence. 

In  a  suit  charging  that  the  defendant  wrongfully  took  possession 
of  plaintiff's  horse  and  refused  to  deliver  the  same  to  the  plaintiff^ 
although  demand  was  made,  the  defendant,  under  a  general  denial, 
cannot  by  the  evidence  make  defense  of  confession  and  avoidance. 

APPEAL  FROM  HENDERSON  CIRCUIT  COURT. 

May  6,  1876. 

Opinion  by  Judge  Cofer  : 

It  was  alleged  in  the  petition  that  the  defendant  "wrongfully, 
without  right,  took  possession"  of  the  plaintiff's  horse,  and  had 
"failed  and  refused  to  deliver  the  same  to  the  plaintiff,  althougti  due 
demand  had  been  made  therefor."  These  allegations  being  un- 
denied,  the  conversion  of  the  horse  stood  confessed  on  the  pleadings. 
These  allegations  being  confessed,  the  denial  that  the  defendant 
wrongfully  and  without  right  converted  the  horse  to  his  own  use, 
presented  no  defense  whatever  to  the  action. 


John  D.  Baker,  et  al.,  v,  J.  W.  Tandy,  et  al.  701 

But  if  the  answer  be  conceded  to  contain  a  traverse  of  all  the 
material  allegations  in  the  petition,  the  result  would  be  the  same. 
The  evidence  shows  without  contradiction  that  the  defendant  took 
possession  of  the  horse  without  the  consent  of  the  plaintiff,  and  that 
while  in  the  former's  possession  the  horse  was  killed. 

The  defendant  attempted  to  show  by  the  evidence  that  the  horse 
was  trespassing  upon  his  premises,  and  that  he  took  possession  of 
him  merely  for  the  purpose  of  restraining  him  from  committing 
other  depredations  until  the  plaintiff  could  be  informed  of  the  fact 
and  come  and  take  him  away.  In  other  words,  he  sought  to  prove 
that  his  possession  was  lawful,  and  then  insisted  that  being  law- 
fully in  possession  he  was  only  liable  in  the  event  the  horse  was  killed 
in  consequence  of  his  negligence. 

This  defense  could  not  be  made  under  an  answer  which  contained 
only  denials  of  the  allegations  in  the  petition.  The  answer,  if  good  at 
all,  was  a  simple  denial  of  the  facts  constituting  the  plaintiff's  cause 
of  action ;  but  the  defense  attempted  to  be  made  out  by  the  evidence 
was  of  confession  and  avoidance. 

To  admit  such  a  defense  under  such  an  answer  would  be  totally 
to  disregard  the  rules  of  pleading  and  practice,  and  thereby  to  de- 
prive the  plaintiff  of  the  advantage  of  being  informed  by  the  answer 
of  the  facts  upon  which  the  defendant  intended  to  rely.  The  plain- 
tiff had  a  right  to  look  to  the  answer ;  and  when  he  found  no  attempt 
to  make  any  other  defense  than  a  mere  denial  of  the  facts  alleged, 
he  had  a  right  to  assume  that  he  would  only  be  required  to  prove 
those  facts,  and  would  naturally  be  surprised  by,  and  totally  unpre- 
pared to  meet  the  evidence  offered,  not  to  disprove,  but  to  avoid  the 
facts  he  had  alleged. 

It  results,  therefore,  that,  even  conceding  the  answer  was  sufficient 
to  bar  the  action,  the  court  did  not  err  in  refusing  to  give  instructions 
based  on  evidence  offered  in  avoidance  of  the  plaintiff's  cause  of 
action. 

Judgment  affirmed. 

Clay  &  Coletnan,  for  appellant.    H.  F.  Turner,  for  appellee. 


John  D.  Baker,  et  al.,  v.  J.  W.  Tandy,  et  al. 


Highways — Damages ^n  Account  of  Opening  Of. 

Where  damages  are  awarded  to  the  owners  of  land  taken  for  a 
highway,  such  damages  must  be  tendered  or  paid  into  court  before 
their  land  can  be  taken. 


702  Kentucky  Opinions. 

APPEAL  FROM  CARROLL  CIRCUIT  COURT. 

Kay  8,  1876. 

* 

Opinion  by  Judge  Peters  : 

The  place  of  beginning  for  the  change  in  the  road  is  described  in 
the  viewer's  report  with  such  certainty  as  to  leave  no  difficulty  in  as- 
certaining it;  and  taking  the  line  as  surveyed  as  the  center  of  the 
route,  which  is  made  so  by  law,  and  the  alteration  is  described  by 
metes  and  bounds,  courses  and  distances  in  the  report,  and  the 
terminus  is  fixed  therein  with  exact  certainty.  There  is,  therefore, 
no  objection  to  the  report  of  the  viewers;  and  the  court  having 
adopted  that  as  the  route  for  the  purposed  change  in  the  road,  the 
judgment  to  that  extent  is  approved. 

The  sheriff  was  commanded  by  the  writ  of  ad  quod  damnum  to 
summon  the  jury  to  meet  on  the  i8th  of  March,  1874,  but  if  from 
any  sufficient  reason  the  jury  could  not  attend  and  be  sworn  on  that 
day,  he  was  directed  to  summon  them  to  meet  on  some  other  day  to 
be  fixed  by  himself,  giving  due  notice  to  the  parties  interested.  The 
inquest  was  held  on  the  26th  of  March,  1874,  of  which,  as  the  sherift 
returns  show,  he  gave  to  appellants  due  notice.  The  writ  and  inquest 
were  returned  to  court,  and  no  exceptions  were  taken  thereto,  for 
the  want  of  notice  of  the  time  and  place  of  the  meeting  of  the  jur\, 
or  for  any  irregularity  in  the  proceeding;  and  if  any  defects  existed 
they  were  waived  by  failing  to  except  in  the  lower  court. 

The  jury  fixed  in  their  verdict  what  would  be  a  just  compensation 
to  each  of  the  appellants  for  their  land  taken,  and  the  cost  of  making 
the  additional  fencing  by  the  establishment  of  the  alteration  of  the 
road ;  and  they  found  that  no  damage  would  result  to  the  residue  of 
the  appellants'  lands.  The  verdict  responded  to  all  the  requirements 
of  the  writ,  and  seems  to  be  complete. 

But  there  is  a  fatal  defect  in  the  judgment  in  leaving  the  sums  to 
be  paid  to  Baker  and  Darbro  respectively  in  blank.  If  as  it  appears 
they  declined  to  take  the  damages  assessed  when  tendered  to  them, 
the  money  should  have  been  ordered  to  be  paid  into  court  for  them ; 
and  placed  in  their  power  to  receive  the  compensation  for  their  prop- 
erty whenever  they  should  choose  to  do  so,  and  not  compel  them  to 
resort  to  their  actions  at  law  to  get  it,  or  to  await  the  pleasure  of 
those  who  had  to  pay  it.  Compensation  must  be  previously  made 
before  their  land  can  be  taken,  or  it  must  be  in  such  a  condition  that 
they  can  get  it,  when  it  shall  be  their  pleasure  to  receive  it. 

Wherefore  the  judgment  of  the  circuit  court  is  reversed  iot  the 


John  Jones  and  Wife  v.  Alfred  Thompson.  703 

single  error  pointed  out,  and  the  cause  remanded  with  directions 
to  reverse  the  order  of  the  county  court,  and  for  a  judgment  to  be 
entered  in  conformity  with  this  opinion. 

W.B,&  M.  W.  Winslow,  for  appellants. 
Masterson  &  Gaunt,  for  appellees. 


John  Jones  and  Wife  v,  Alfred  Thompson. 

Resulting  Trusts. 

Since  the  passage  of  the  Act  of  July  1,  1862»  it  devolves  upon  a 
party  asking  the  aid  of  a  court  of  equity  to  enforce  a  resulting 
trust  to  show,  by  appropriate  averments,  that  it  is  not  within  the 
operation  of  the  general  provisions  contained  in  %  20,  but  belongs  to 
one  or  the  other  of  the  classes  excepted  in  §  22,  otherwise  the  relief 
cannot  be  granted. 

Pleading. 

Averments  in  a  pleading  to  enforce  a  resulting  trust  are  insufficient 
when  they  amount  to  no  more  than  that  the  defendant  purchased  the 
real  estate  for  plaintiff  and  took  conveyance  to  himself,  which  may 
be  true  and  not  result  in  a  trust. 

Conveyance  to  Defraud  Creditors. 

A  contract  fully  executed,  founded  in  a  fraudulent  purpose  to 
cheat  creditors,  is  valid  against  those  who,  as  volunteers,  claim  under 
one  of  the  parties  to  the  fraud. 

APPEAL  FROM  BOYD  CIRCUIT  COURT. 

May  9,  1876. 

Opinion  by  Judge  Cofer  : 

The  facts  of  this  case  are  so  far  similar  to  the  facts  in  Graves  v. 
Graves,  3  Met.  167,  as  to  make  that  case  decisive  of  this.  In  that 
case  the  appellant,  who  was  the  mother  of  appellee,  brought  suit  to 
compel  the  appellee  to  convey  to  her  land  which  she  alleged  he 
bought  for  her,  as  her  agent,  and  paid  for  with  her  money,  but  the 
title  to  which  had  been  made  to  him. 

This  court  commenting  on  the  petition  in  that  case  said:  "The 
petition  fails  to  charge  that  the  appellee  violated  any  trust  confided 
to  him  in  procuring  the  deed  thus  to  be  made,  or  that  the  deed  was 
so  made  without  the  consent  or  directions  of  the  appellant.  For 
aught  that  appears  to  the  contrary,  the  deed  may  have  been  made  to 
him  with  her  consent,  and  by  her  authority  and  express  direction." 


704  Kentucky  Opinions. 

The  first  question,  then,  that  arises  is,  could  the  chancellor,  upon 
the  state  of  fact  presented  by  the  petition,  have  compelled  a  convey- 
ance, even  though  the  existence  of  such  facts  had  not  been  contro- 
verted by  answer  ?    We  think  not. 

And  then,  after  stating  what  the  law  of  resulting  trusts  was  before 
the  adoption  of  the  Revised  Statutes,  and  quoting  Sees.  20  and  22  of 
Chap.  80,  the  court  went  on  as  follows :  "In  all  cases,  therefore,  aris- 
ing as  this  did,  since  July  i,  1852,  it  devolves  upon  a  party  asking  the 
aid  of  a  court  of  equity  to  enforce  a  resulting  trust  to  show,  by  ap- 
propriate averments,  that  it  is  not  within  the  operation  of  the  general 
provision  contained  in  Sec.  20,  but  belongs  to  one  or  the  other  of  the 
classes  excepted  in  Sec.  22 ;  otherwise  the  relief  cannot  be  granted." 

There  are  no  averments  in  the  pleadings  in  this  case  to  take  it  out 
of  the  general  provisions  of  Sec.  20.  The  most  liberal  construction 
which  can  be  given  to  the  answer  and  counterclaim  cannot  bring  it 
within  the  rule  just  cited.  All  that  can  be  found  in  that  pleading 
amounts  to  no  more  than  an  averment  that  the  appellee  purchased 
the  lots  for  his  father  and  took  the  conveyances  to  himself.  It  is  not 
alleged  that  this  was  done  in  violation  of  confidence  reposed  in  the 
appellee,  or  that  the  deeds  were  so  made  without  the  consent  of  Jack- 
son Thompson,  and  as  was  said  in  the  case  supra,  "For  aught  that 
appears  the  deeds  may  have  been  made  to  him  with  Jackson  Thomp- 
son's consent,  and  by  his  authority  and  express  direction.'' 

The  allegation  that  the  appellee  received  the  conveyances  in  trust 
for  his  father,  is  but  the  averment  of  a  legal  conclusion.  The  facts 
showing  that  there  was  a  trust  should  have  been  stated,  and  that  not 
having  been  done,  the  averment  of  the  conclusion  adds  nothing  what- 
ever to  the  strength  of  the  pleading.  We  are,  therefore,  of  the  opin- 
ion that  if  all  the  facts  alleged  had  been  admitted  or  proved,  the 
chancellor  could  not  have  done  otherwise  than  dismiss  the  counter- 
claim, so  far  as  it  was  based  upon  a  supposed  trust. 

The  supposed  agreement  of  the  appellee  to  convey  the  lot  sued  for 
to  Mrs.  Jones  is  not  even  referred  to  in  the  pleadings,  and  if  it  had 
been  fully  established  by  the  evidence  it  could  avail  nothing  in  the 
state  of  the  pleadings.  And  the  same  is  true  of  the  other  ground  of 
defense  urged  in  argument,  viz. :  that  the  deeds  were  made  to  the  ap- 
pellee to  shield  the  property  from  the  creditors  of  his  father.  Nor 
could  that  fact,  if  alleged  and  proved,  be  of  any  avail  whatever.  The 
contract  is  fully  executed,  and  if  founded  in  the  alleged  fraudulent 
purpose  to  cheat  creditors,  it  is  valid  against  those  who,  as  volun- 
teers, claim  under  one  of  the  parties  to  the  fraud.    In  Bookover  v. 


E.  K.  Weir  v.  Elizabethtown  &  Paducah  R.  Co.        705 

Hurst,  I  Met.  665,  this  court  held  that  a  mortgagor  "cannot  prevent 
the  legal  operation  of  the  deed  by  showing  it  was  fraudulently  ex- 
ecuted by  him.    This  is  neither  a  valid,  legal  nor  equitable  defense." 

It  was  said  in  Graves  v.  Graves  (and  the  same  doctrine  was  fully 
recognized  in  Martin  v.  Martin,  et  aL,  5  Bush  47),  that  when  the 
money  of  one  person  is  used  to  pay  for  land  which  is  conveyed  to 
another,  under  such  circumstances  there  is  no  enforceable  trust,  the 
party  whose  money  has  been  so  used  for  the  benefit  of  another  may 
recover  it ;  and  upon  the  facts  in  that  case  the  appellant  would  have 
been  entitled  under  her  prayer  for  general  rehef  to  a  judgment  for 
the  money,  but  for  other  matters  which  were  held  to  amount  to  an 
estoppel  to  claim  it.  So  in  this  case,  if  Jackson  Thompson,  instead 
of  Jones  and  wife,  had  pleaded  the  facts  pleaded  by  them,  he  could 
have  recovered  whatever  money,  belonging  to  him,  the  evidence 
shows  was  used  in  paying  for  the  lots.  But  the  right  of  action  to 
recover  the  money  is  in  his  personal  representative,  and  not  in  his 
heirs. 

We  are,  therefore,  of  the  opinion  that  the  appellants  failed  to  show 
a  right  to  relief  of  any  kind  to  any  extent,  and  the  judgment  is  af- 
firmed. 

Elliott  &  Prichard  and  A.  J.  James,  for  appellants. 

Ireland  &  Hampton  and  A.  L.  Moore,  for  appellee. 


E.  K.  Weir  v.  Elizabethtown  &  Paducah  R.  Co. 

Principal  and  Agent — Authority  of  Railroad  Engineer. 

General  authority  conferred  by  a  railroad  company  upon  Its  chief 
engineer  to  make  contracts  for  Its  construction  gives  such  agent  no 
power  to  contract  with  the  owners  of  mines  to  construct  switches  or 
branch  roads  to  such  mines. 

Proof  to  Establish  Agency. 

Statements  and  letters  of  the  agent  are  not  admissible  In  evidence 
to  establish  the  agency. 

APPEAL  FROM  JEFFERSON  COURT  OF  COMMON  PLEAS. 

May  11.  1876. 

Opinion  by  Judge  Pryor: 

It  is  admitted  by  the  answer  that  McLeod  is  or  was  the  chief  engi- 
neer of  defendant's  road,  and  as  such  had  the  general  authority  to 
superintend  and  control  its  construction.    Numerous  witnesses  were 

45 


7o6  Kentucky  Opinions. 

introduced  showing  that  this  engineer  made  contracts  for  its  con- 
struction, and  was  no  doubt  authorized  to  do  so  by  reason  of  his 
superior  skill  in  the  construction  of  such  improvements.  This  gen- 
eral authority  of  the  road  to  make  contracts  for  its  construction  con- 
ferred upon  him  no  power  to  make  contracts  with  the  owners  of 
mines,  to  contract  switches  or  branch  roads  to  their  mines.  His 
agency,  so  far  as  this  record  shows,  extended  to  the  construction  of 
the  road,  and  from  it  is  not  to  be  implied  a  power  to  contract  for,  or 
contribute  to  branch  roads  owned  by  others,  although  it  may  appear 
beneficial  to  the  company.  Such  authority  must  be  shown.  The 
fact  that  one  such  contract  had  been  made  by  this  engineer  or  some 
other  officer  that  had  been  approved  by  the  company  was  no  evidence 
from  which  the  existence  of  a  general  authority  in  such  matters  was 
to  be  inferred ;  and  the  court  should  have  excluded  it  from  the  jur\\ 
Nor  were  the  statements  or  letters  of  the  engineer  competent  evi- 
dence to  establish  the  agency. 

This  fact  must  be  brought  home  to  the  company,  and  when  estab- 
lished, the  declarations  and  conduct  of  the  agent  in  the  discharge  of 
the  duties  of  his  employment  would  be  competent.  The  engineer 
was  a  competent  witness,  and  by  him  the  agency,  if  it  existed,  could 
have  been  shown;  certainly  his  declarations  were  incompetent  to 
establish  that  fact. 

The  company  was  not  compelled  to  bring  its  books  or  private  cor- 
respondence into  court  to  enable  the  appellant  to  make  out  his  case. 
The  rule  was,  therefore,  properly  refused.  It  is  unnecessary  to 
notice  the  other  questions  used  by  counsel  for  the  appellee  in  the 
case. 

Judgment  affirmed. 

M.  Mundy,  J.  C.  IVMer,  W.  Whitafier,  for  appellant 

H.  C  Pindell,  for  appellee. 


O.  C.  Pace  v.  H.  B.  Claflin  &  Co. 

Partnership — Withdrawal  of  Debt. 

A  partner,  when  a  debt  is  Incurred,  Is  not  relieved  by  the  fact  that 
before  a  note  is  given  to  evidence  such  debt  he  has  withdrawn  from 
the  firm. 

Non  est  Factum. 

Non  est  factum  pleaded  by  a  member  of  a  firm  to  a  note  given  by 
the  firm  for  a  debt,  after  dissolution  of  the  firm  but  before  actual 
notice  to  a  creditor,  is  not  a  defense  to  a  suit  by  the  creditor  on  such 
note  who  has  had  previous  dealing  with  the  firm  before  the  execution 
of  the  note. 


O.  C.  Pace  v,  H.  B.  Claflin  &  Co.  707 

Notice  of  Dissolution. 

Notice  of  the  dissolution  of  a  partnership  published  in  a  newsimper 
is  not  sufficient  to  inform  one  of  such  dissolution  who  has  had  previ- 
ous dealings  with  the  firmi  unless  it  is  shown  that  such  notice  came 
to  the  knowledge  of  such  person. 

Plea  in  Abatement. 

Under  our  Code  pleading  an  answer  in  the  nature  of  a  plea  in 
abatement  for  want  of  necessary  parties  must  not  only  be  affirmative 
in  character,  but  must  contain  the  names  of  those  who  ought  to  be 
parties  but  are  not  and  these  averments  must  be  proved  by  the  de- 
fendant. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

May  12,  1876. 

Opinion  by  Judge  Cofer  : 

These  suits  were  brought  upon  promissory  notes  signed  by  R.  E. 
Cross  &  Co.,  and  payable  to  H.  B.  Claflin  &  Co.  It  v^as  stated  in  the 
petitions  that  H.  B.  Claflin,  E.  E.  Eames  and  E.  W.  Bankroft  com- 
posed the  plaintiff  firm  at  the  dates  of  the  notes  sued  upon,  and  that 
R.  E.  Cross,  R.  H.  Baker,  O.  C.  Pace  and  W.  F.  Alexander,  at  said 
times  composed  the  defendant  firm. 

Pace  answered  and  denied  that  he  was  a  member  of  the  firm  of 
R.  E.  Cross  &  Co.  at  the  dates  of  the  several  notes,  and  denied  that 
said  notes,  or  any  of  them,  were  his  acts  and  deeds.  He  further 
averred  that  he  was  formerly  a  member  of  said  firm,  but  had  with- 
drawn therefrom  on  a  day  anterior  to  the  date  of  said  notes,  of  which 
withdrawal  and  dissolution  due  notice  was  given  in  the  Courier 
Journal,  a  daily  newspaper  published  and  extensively  circulated  in 
the  city  of  Louisville,  the  place  of  business  of  said  firm,  so  that  at 
the  time  of  the  creation  of  the  supposed  indebtedness  sued  on  this 
defendant  was  not  a  member  of  said  firm  of  R.  E.  Cross  &  Co. ;  and 
of  this  plaintiffs  had  legal  and  sufficient  notice. 

Further  answering,  he  said  that  the  plaintiffs  and  others,  creditors 
of  R.  E.  Cross  &  Co.,  had  compromised,  compounded,  and  settled 
with  R.  E.  Cross,  and  had  agreed  to  release  him  from  further  lia- 
bility on  account  of  the  notes  sued  upon,  so  that  the  said  Cross  was 
no  longer  bound  for  said  indebtedness  or  any  part  of  it,  whereby  he. 
Pace,  if  ever  liable  therefor,  was  released.  In  his  answer  in  one  of 
the  cases.  Pace  averred  that  he  did  not  know,  and  had  not  knowledge 
or  information  sufficient  to  form  a  belief  whether  the  persons  named 


7o8  Kentucky  Opinions. 

as  plaintiffs  were  at  the  times  stated,  partners  under  the  firm  name  of 
H.  B.  Ciaflin  &  Co. 

The  plaintiffs  afterwards  amended  both  petitions,  and  alleged  that 
at  the  dates  when  the  notes  sued  on  were  executed  the  firm  of  H.  B. 
Clafiin  &  Co.  consisted  of  H.  B.  Claflin,  E.  E.  Eames,  H.  J.  Fairchilrt, 
Dexter  N.  Force,  Daniel  Robinson,  John  Claflin  and  W.  S.  Dunn. 
By  consent  the  allegations  of  the  amended  petitions  were  to  be 
"taken  as  specifically  controverted  upon  the  record  without  any 
answer  thereto  being  filed." 

As  respects  the  plea  of  non  est  factum,  the  evidence  showed  that 
in  the  spring  of  1873  Pace  was  a  member  of  the  firm  of  R.  E.  Cross 
&  Co.,  doing  business  in  Louisville ;  that  between  that  time  and  the 
date  of  the  dissolution  of  the  firm  of  R.  E.  Cross  &  Co.,  and  the  with- 
drawal of  Pace  from  said  firm,  the  firm  repeatedly  bought  goods  of 
H.  B.  Claflin  &  Co.,  wholesale  merchants  in  the  city  of  New  York, 
for  portions  of  which  the  firm  of  R.  E.  Cross  &  Co.  gave  notes  from 
time  to  time ;  that  the  goods  for  which  the  notes  sued  on  were  given 
were  all,  save  one,  small  bills  purchased  prior  to  May  24,  1874 ;  that 
early  in  that  year  the  firm  of  R.  E.  Cross  &  Co.  was  dissolved,  but 
that  Pace  continued  in  the  store  as  a  salesman  until  May  24  when 
notice  of  the  dissolution  was  published  in  the  daily  Courier  Journal, 
a  newspaper  published  in  Louisville ;  but  there  was  no  evidence  that 
the  plaintiffs  had  received  notice,  or  had  any  knowledge  of  the  dis- 
solution until  after  the  loth  of  August,  1874.  The  notes  all  bear  date 
in  July,  1874,  and  were  probably  not  delivered  to  the  payees  until 
August  10  of  that  year.  They  were  signed  with  the  firm  name  by 
R.  E.  Cross,  and  there  was  no  evidence  that  any  special  authority 
had  been  given  him  by  Pace  to  execute  the  notes. 

The  firm  of  R.  E.  Cross  &  Co.  having  been  dissolved  before  the 
notes  were  executed,  it  is  earnestly  argued  by  counsel  for  Pace  that 
R.  E.  Cross  had  no  authority  as  partner  to  execute  the  notes  in  the 
firm  name,  that  as  he  is  not  shown  to  have  had  any  special  authority, 
the  plea  of  non  est  factum  is  not  overcome  by  the  evidence,  and  that 
the  court  erred  in  not  so  adjudging.  "The  doctrine  is  well  settled 
that  after  a  partnership  had  been  dissolved,  and  legal  notice  of  the 
dissolution  has  been  given,  one  partner  cannot  bind  his  co-partners 
by  the  execution  of  a  note,  or  any  other  instrument  of  writing  which 
creates  a  new  cause  of  action,  even  for  the  renewal  of  a  partnership 
note  or  the  settlement  or  liquidation  of  a  partnership  account."  Mer- 
rit  V,  Pollys,  et  al.,  16  B.  Mon.  355. 

These  notes  were  certainly  executed  by  one  partner  after  the  dis- 


O.  C.  Pace  v,  H.  B.  Claflin  &  Co.  709 

solution  of  the  partnership  and  without  any  new  authority  to  do  so, 
or  indeed  any  authority  at  all,  unless  he  had  such  authority  because 
of  the  late  partnership.  But  this  is  not  enough  to  avoid  the  notes  on 
the  plea  of  non  est  factum.  To  do  this  there  must  have  been  pre- 
vious legal  notice  of  the  dissolution.  Pace  admitted  in  his  answers 
that  he  had  been  a  member  of  the  firm,  but  sought  to  avoid  liability 
on  notes  executed  by  one  of  the  partners  in  the  firm  name  on  the 
ground  that  the  partnership  had  been  dissolved  before  the  notes  were 
executed ;  and  in  order  to  do  so  he  did  not  stop  when  he  had  averred 
that  the  partnership  was  dissolved  before  the  execution  of  the  notes, 
but  he  went  on  and  averred  in  addition  that  they  were  executed 
after  the  "plaintiffs  had  legal  and  sufficient  notice"  of  the  dissolution. 
Without  this  latter  averment  the  answer  would  not  have  been  suf- 
ficient. 

In  regard  to  dealings  with  them  by  the  firm  of  R.  E.  Cross  &  Co., 
while  Pace  was  a  member  of  that  firm,  what  sort  of  notice  would, 
as  to  the  plaintiffs,  be  legal  and  sufficient  to  avoid  the  notes  executed 
after  the  dissolution?  Upon  this  subject  the  authorities  are  clear 
and  decisive. 

The  rule  is  thus  stated  in  Story  on  Partnerships,  Sec.  161 :  "Pub- 
lic notice  given  in  some  such  reasonable  way  (by  publication  in  local 
newspapers),  will  not  be  deemed  actual  and  express  notice;  but  it 
will  be  good  presumptive  evidence,  and  sufficient  for  a  jury  to  con- 
clude all  persons,  who  have  not  had  previous  dealings  with  the  firm. 
As  to  persons  who  have  been  previously  in  the  habit  of  dealing  with 
the  firm,  it  is  requisite  that  actual  notice  should  be  brought  home  to 
the  creditor,  or  at  least,  that  the  credit  should  be  given  under  circum- 
stances, from  which  actual  notice  may  be  inferred."  See  also  Ken- 
nedy V.  Bohannon,  11  B.  Mon.  118;  Merritt  v.  Polly,  et  al.,  16  B. 
Mon.  355 ;  Montague  v.  /.  &  C,  Reakert,  6  Bush  393. 

The  plaintiffs  were  entitled  to  actual  notice  of  the  dissolution.  The 
only  notice  given  prior  to  the  execution  and  delivery  of  the  notes  was 
by  a  newspaper  publication  not  shown  to  have  come  to  their  knowl- 
edge. Such  publication,  we  have  seen,  is  not  actual  notice.  Where- 
fore the  plaintiffs  did  not  have  "legal  and  sufficient  notice,"  and 
Cross  had  authority  to  bind  Pace  by  the  execution  of  the  notes  in  the 
firm  name.  Lindley  on  Partnerships,  294. 

The  evidence  wholly  failed  to  sustain  the  allegation  in  the  answers 
in  respect  to  the  compromise  and  compounding  with  Cross.  No 
agreement  to  release  Cross  is  proved.  The  plaintiffs  were  not  present 
at  the  time  when  it  is  attempted  to  prove  that  the  composition  was 


7IO  Kentucky  Opinions. 

made.  They  were  represented  by  attorneys,  but  the  attorneys  made 
no  agreement  to  release  Cross ;  and  if  they  had  done  so,  no  authority 
from  their  clients  to  so  agree  had  been  shown ;  and  it  is  clear  that 
such  authority  is  not  incident  to  the  ordinary  employment  of  attor- 
neys at  law. 

It  is  next  insisted  that  the  allegations  in  the  petitions  that  the  per- 
sons named  therein  as  plaintiffs  composed  the  firm  of  H.  B.  Claflin 
&  Co.  at  the  time  the  notes  were  executed,  having  been  specifically 
denied,  were  not  proved,  and  that  the  actions  should  have  been  dis- 
missed on  that  ground.  When  in  an  action  upon  a  note  payable  to  a 
firm,  all  the  individuals  composing  the  firm  are  not  named  as  parties, 
the  action  cannot  be  maintained  unless  the  objection  on  account  of 
the  defect  of  parties  is  waived.  If  the  defect  of  parties  appears  on  the 
face  of  the  petition  the  defendant  may  demur,  otherwise  the  objec- 
tion must  be  taken  by  answer.  Sec.  123,  and  Subsec.  120,  Civil  Code. 
Unless  so  taken  the  objection  is  waived. 

It  does  not  appear  in  the  petitions  in  these  cases  that  there  was  any 
defect  of  parties  plaintiff,  and  it  was,  therefore,  necessary  to  take  the 
objection  by  answer.  That  was  attempted  to  be  done  by  denying  the 
allegation  that  the  persons  named  as  plaintiffs  composed  the  firm  of 
H.  B.  Claflin  &  Co.  at  the  date  of  the  notes. 

Since  the  adoption  of  the  code  of  practice  there  is  no  such  plead- 
ing known  in  our  system  as  a  plea  in  abatement.  Petition,  answer, 
reply  and  demurrer  comprise  our  whole  list,  and  a  pleading  in  tlie 
nature  of  a  plea  in  abatement  is  now  called  an  answer.  Sees.  120 
and  123,  Civil  Code.  What,  then,  are  the  requisites  of  an  answer  in 
the  nature  of  a  plea  in  abatement  for  defect  of  parties  ?  The  code  has 
dispensed  with  the  forms  of  pleading,  but  not  with  the  substance. 
No  pleading  is  good  under  the  code  which  does  not  contain  all  thf 
averments  essential  to  a  good  pleading  under  the  former  system. 
Hill  V,  Barrett,  et  al,  14  B.  Mon.  83. 

What,  then,  were  the  essentials  under  the  common-law  system  of 
pleading  of  a  plea  in  abatement  for  non-joinder  of  plaintiffs?  From 
the  very  nature  of  the  plea  it  was  affirmative,  and  could  not  be  made 
in  merely  negative  language.  The  pleader  confessed  that  there  was 
a  cause  of  action  against  him  on  the  facts  alleged  in  the  declaration, 
for  otherwise  he  would  have  demurred  instead  of  pleading.  Confess- 
ing that  the  declaration  showed  a  cause  of  action  in  the  plaintiffs, 
he  undertook  to  avoid  it  by  showing  that  on  account  of  some  fact  not 
disclosed  by  the  declaration  the  plaintiff  had  no  right  to  maintain  the 
action.  Now  he  could  only  show  that  the  plaintiff  had  no  right  to  re- 


O.  C.  Pace  v,  H.  B.  Claflin  &  Co.  711 

cover  by  showing  that  some  one  not  a  party  was  a  necessary  party ; 
and  this  he  could  only  do  by  naming  in  his  plea  the  person  alleged 
to  be  jointly  interested  with  the  plaintiff;  and  therefore  a  plea  in 
abatement,  because  some  of  those  who  were  necessary  parties  had 
not  joined  in  the  declaration  or  been  made  defendants,  was  always 
held  bad  unless  it  disclosed  to  the  plaintiff  who  it  was  who  should 
be  a  party,  or,  in  other  words,  unless  the  plea  gave  the  plaintiff  a 
better  writ,  i  Chitty's  Pleading  481.  This  was  necessary  to  enable 
the  plaintiff  to  proceed  at  all ;  and  if  issue  was  joined  on  the  plea, 
the  onus  probandi  was  on  the  defendant,  because  he  had,  by  his 
plea,  confessed  and  avoided  the  plaintiff's  cause  of  action,  and  as 
to  the  matter  of  avoidance  he  held  the  affirmative. 

These  rules  still  prevail,  and  the  simple  denial  in  the  answer  did 
not  devolve  upon  the  plaintiff  the  duty  of  proving  that  the  persons 
named  as  plaintiffs  were  the  only  members  of  the  plaintiff  firm. 
This  was* in  effect  decided  in  Petty  v,  Malier,  14  B.  Mon.  246.  In 
that  case  the  plaintiff  sued  in  her  own  name  to  recover  a  tract  of 
land.  Her  petition  did  not  disclose  the  fact  that  she  was  a  mar- 
ried woman.  The  defendant,  however,  pleaded  that  fact  in  his 
answer,  and  proved  it  on  the  trial.  In  commenting  on  the  case  this 
court  said :  *That  the  plaintiff  has  no  legal  capacity  to  sue  is  cause 
of  demurrer,  if  the  fact  appears  on  the  face  of  the  petition.  *  *  * 
But  when  the  fact  does  not  appear  in  the  petition,  but  is  relied  upon 
in  the  answer  and  proved  upon  the  trial,  the  defendant  is  entitled 
to  the  full  benefit  of  the  objection." 

If  the  answer  in  that  case  had  contained  a  denial  that  the  plaintiff 
had  legal  capacity  to  sue,  or  an  averment  that  she  had  not  such  ca- 
pacity, but  had  failed  to  state  the  facts  which  showed  that  she  had 
no  such  capacity,  it  would  have  been  just  such  a  plea  as  those  in 
these  cases;  but  there,  as  here,  there  would  have  been  nothing  to 
prove. 

It  seems  to  us  entirely  clear,  both  upon  principle  and  authority, 
that  under  our  code  an  answer  in  the  nature  of  a  plea  in  abatement 
for  want  of  necessary  parties  must  not  only  be  affirmative  in  its 
character,  but  must  contain  the  names  of  those  who  ought  to  be 
parties  but  are  not,  and  that  the  averment  must  be  proved  by  the 
defendant.  Petty  v.  Malier,  14  B.  Mon.  246;  Vanbuskirk,  et  al,,  v. 
Levy,  3  Met.  133;  Graves,  et  al.,  v.  Ward,  Sanders  and  Hunt,  2 
Duvall  301. 


712  Kentucky  Opinions. 

Perceiving  no  error  to  the  prejudice  of  the  appellant,  the  judg- 
ments are  affirmed. 

Alexander  &  Dickinson,  for  appellant, 
Muir,  Biger  &  Davie,  for  appellee. 


A.  K.  Young  v.  D.  W.  Phillips,  et  al. 

Exemption  of  Housekeeper. 

A  bona  fide  housekeeper  with  a  family  residing  on  his  mortgaged 
land  Is  entitled  to  homestead  exemption  In  the  absence  of  a  valid  re- 
lease or  waiver  of  the  homestead  right  according  to  the  provisions  of 
the  statute. 

Mortgagor  Entitled  to  Exemption. 

A  person  entitled  to  a  homestead  exemption  is  entitled  to  have  set 
apart  for  him  land  upon  which  a  house  is  located  unless  such  house 
and  appurtenances  exceed  in  value  $1,000.00  and  if  they  do  he  is  en- 
titled to  $1,000.00  in  money  out  of  the  sale  of  the  property. 

APPEAL  PROM  MARION  CIRCTUIT  COURT. 

May  13,  1876. 

Opinion  by  Judge  Peters: 

At  the  time  of  the  rendition  of  the  judgment  of  foreclosure  and 
up  to  the  time  of  the  sale  the  defendant,  Young,  was  a  bona  fide 
housekeeper  with  a  family,  and  was  residing  in  the  house  and  on 
the  mortgaged  premises.  The  debt  secured  by  the  mortgage  was 
created  after  the  passage  of  the  act  to  exempt  homesteads  from  sale 
for  debt,  approved  February  lo,  i866,  the  first  section  of  which  pro- 
vides, except  for  a  foreclosure  of  a  mortgage  or  for  purchase  money 
due  therefor,  that  so  much  land,  including  the  dwelling  house  and 
appurtenances  owned  by  the  debtor,  as  shall  not  exceed  in  value  one 
thousand  dollars,  shall  be  exempt  from  sale,  etc. 

Sec.  4  provides  that  where  the  real  estate  owned  by  the  debtor 
is  of  greater  value  than  one  thousand  dollars,  and  is  not  divisible 
without  great  diminuation  of  its  value,  the  same  shall  be  sold,  etc., 
and  one  thousand  dollars  of  the  money  arising  from  the  sale  shall 
be  paid  to  the  defendant  to  enable  him  to  purchase  another  home- 
stead, provided,  however,  that  if  the  land,  when  offered  for  sale, 
does  not  bring  more  than  $i,ooo,  there  shall  be  no  sale. 

Sec.  S  provides  that  no  mortgage  release  or  waiver  of  such  exemp- 


Pat  Shaugherssey  z/.  William  Huffman's  Adm'r,  et  al.        713 

tion  shall  be  valid,  unless  the  same  be  in  writing,  subscribed  by  the 
defendant  and  his  wife,  and  acknowledged  and  recorded  in  the  same 
manner  as  conveyances  of  real  estate,  and  that  such  exemption  shall 
continue  after  the  death  of  the  defendant  for  the  benefit  of  his 
widow  and  children,  but  shall  be  estimated  in  allotting  dower.  Myers 
Supp.  714. 

No  valid  release  or  waiver  of  the  homestead  right  is  exhibited  in 
this  case,  according  to  the  provisions  of  the  statute,  supra.  If  the 
homestead  is  set  apart  in  land,  it  must  include  the  dwelling  house 
and  appurtenances;  but  if  for  the  reasons  set  forth  in  the  statute 
that  cannot  be  done,  there  is  but  one  other  mode  of  proceeding  pre- 
scribed by  the  statute,  if  the  estate  will  produce  more  than  $1,000, 
and  that  is  to  sell  the  property  and  pay  $1,000  of  the  money  to  the 
purchaser. 

It  is  an  entire  departure  from  the  letter  as  well  as  the  spirit  of 
the  statute  to  set  apart  land  without  a  house  on  it  for  a  homestead. 
The  debtor  must  have  the  dwelling  house  and  appurtenances  if  they 
do  not  exceed  in  value  of  $1,000,  and  if  they  do,  he  must  surrender 
his  house  and  take  one  thousand  dollars  in  money,  and  when  the 
facts  are  presented,  the  court  has  no  discretion.  Nor  did  Young, 
by  filing  his  answer  and  consenting'  to  the  sale  of  the  property, 
waive  the  right  to  a  homestead.  This  court,  in  Wing,  et  al.,  v. 
Hayden,  et  aL,  10  Bush  276,  said  that  a  waiver  could  be  made  only 
in  one  way,  and  that  is  by  a  writing  signed  by  the  debtor  and  his 
wife,  and  acknowledged  and  recorded,  and  that  no  sale  of  the  prop- 
erty will  divest  the  debtor  of  the  right  unless  it  has  been  waived  in 
the  manner  pointed  out  by  the  statute. 

The  judgment  must  be  reversed  and  the  cause  remanded  with  di- 
rections to  sell  the  property,  and  out  of  the  proceeds  to  pay  ap- 
pellant one  thousand  dollars,  and  apply  the  residue  to  the  payment 
of  appellees'  debt  and  for  other  proceedings  consistent  herewith. 

Affirmed  on  cross-appeal. 

R.  H.  Rountree,  for  appellant.    Russell  &  Averitt,  for  appellees. 


Pat  Shaugherssey  v.  William  Huffman's  Adm'r,  et  al. 

Wills— Sale  of  Real  Estate  by  Executor. 

When  a  will  directs  the  sale  of  real  estate  but  names  no  one   to 
make  it,  the  executor  has  the  power  to  do  so. 


714  Kentucky  Opinions. 

Sale  of  Real  Estate  to  Pay  Debts. 

An  executor,  is  only  authorized  to  sell  real  estate  when -directed  by 
the  will  to  do  so  or  when  it  becomes  necessary  to  pay  debts  and  the 
personal  property  is  not  sufficient  for  such  purpose. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

May  17,  1876. 

Opinion  by  Judge  Cofer: 

It  seems  settled  by  the  authorities  that  when  a  testator  directs 
his  real  estate  to  be  sold,  but  fails  to  say  by  whom  the  sale  shall  be 
made,  the  executor  will  have  the  power  of  sale  by  implication. 
2  Redfield  on  Wills  124;  i  Sugden  on  Powers  194. 

If,  therefore,  the  testator  had  plainly,  or  by  necessary  implica- 
tion, directed  his  real  estate  to  be  sold,  we  should  have  no  difficulty 
in  holding  that  the  sale  made  by  the  administratrix  was  valid.  But 
we  incline  to  the  opinion  that  the  will  does  not  contain  directions 
or  authority  to  sell  the  real  estate.  It  does  not  appear  from  the  will 
that  the  testator  owned  any  real  estate.  He  does  not  direct  all  his 
estate  to  be  sold,  but  only  so  much  as  shall  be  necessary  to  pay  his 
debts.  It  does  not  appear  that  he  had  not  ample  personal  estate  to 
pay  all  his  debts.  Such  estate  is  by  law  the  primary  fund  for  the 
payment  of  debts,  and  the  testator,  when  directing  a  sale  of  so  much 
property  **as  may  be  required  to  be  sold  to  pay  all  debts,"  may  have 
referred  alone  to  his  personal  estate,  and  it  ought  to  be  presumed 
that  he  did  so  in  the  absence  of  more  explicit  language. 

The  authorities  cited  by  counsel  do  not,  in  our  opinion,  warrant 
us  in  holding  that  there  was  authority  to  any  one  to  sell  the  real 
estate.  The  cases  cited  in  2  Sugden  on  Powers  198,  are  not  like 
this.  In  Elton  v.  Harrison,  the  direction  was  to  pay  certain  legacies 
within  a  year  if  the  testatrix's  land  in  A.  could  be  sold.  There  was 
express  mention  of  the  land,  and  a  clear  intention  that  it  should 
be  sold.  It  would  have  been  absurd  to  say  that  the  testatrix  had 
made  the  payment  of  the  legacies  within  the  time  prescribed  to  de- 
pend upon  the  doing  of  an  act  which  she  did  not  intend  should  be 
done.  In  Nezvton  v,  Bennett,  the  testator  expressly  directed  all  his 
estate  to  be  sold  forthwith.  Lillard,  et  al,  v.  Robinson,  3  Litt  415, 
involved  a  question  of  title  to  slaves. 

The  language  of  the  will  was,  "I  lend  all  my  estate  of  all  kinds 
to  my  wife  during  her  natural  life ;  and  I  g^ve  all  the  said  estate  to 
be  divided  equally  between  the  children  of  Thomas  Prather,  de- 


R.  G.  Bush  v.  E.  Kansh  Quissenberry,  et  al.  715 

ceased,  at  her  death,  unless  my  said  wife  order  it  to  the  contrary." 
The  widow  sold  the  slaves  in  contest  and  the  court  held  that  the  sale 
was  a  valid  and  effectual  exercise  of  the  power  conferred  upon  her 
by  the  will,  in  other  words,  that  she  had  ordered  to  the  contrary, 
and  therefore  the  children  of  Thomas  Prather  were  not  entitled  to 
the  slaves. 

In  Morse,  et  aL,  v.  Cross,  iy  B.  Mon.  735,  the  testator  gave  all 
his  estate  after  the  payment  of  his  debts  to  his  wife  "to  hold,  add 
to  or  dispose  of  at  her  own  discretion  during  her  life  or  widowhood 
for  the  purpose  of  keeping  together  and  maintaining"  his  children. 
Those  authorities  do  not  justify  us  in  holding  that  authority  to  sell 
real  estate  can  be  implied  from  language  such  as  occurs  in  the  will 
before  us.  The  only  authority  given  even  to  sell  personal  estate 
is  in  case  it  should  be  required  to  pay  debts. 

If,  however,  the  sale  of  real  estate  be  necessary  for  the  payment 
of  the  testator's  debts,  and  the  sale  was  made  at  a  fair  price,  we 
see  no  reason  why,  upon  these  facts  being  made  to  appear,  the 
chancellor  may  not  approve  and  confirm  the  sale,  the  purchaser  be- 
ing willing,  as  appears  from  his  answer,  to  keep  the  property  and 
pay  for  it  upon  being  assured  of  a  good  title.  But  unless  it  be  made 
to  appear  that  a  sale  of  real  estate  was  necessary  for  the  payment 
of  debts,  and  that  the  sale  was  made  at  a  fair  price  and  may  be  ap- 
proved and  ratified  by  the  chancellor  without  detriment  to  the  de- 
visees in  remainder,  the  contract  of  sale  should  be  rescinded  upon 
equitable  terms. 

Judgment  reversed  and  cause  remanded  for  further  proceedings. 

Pat  Joyes,  Hagan  &  Caruth,  for  appellant. 
/.  JV.  Wilson,  for  appellees. 


R.  G.  Bush  v.  E.  Kansh  Quissenberry,  et  al. 

Guardian  and  Ward — Irregularities  in  Proceedings  for  Sale  of  Ward's 

Realty. 

Mere  Irregularities  In  the  proceedings  to  sell  the  ward's  real  estate, 
if  not  detrimental  to  the  ward,  will  not  effect  the  purchaser's  title. 

Sale  of  Ward's  Real  Estate. 

The  failure  of  a  guardian  or  committee  of  an  Infant,  idiot  or  luna- 
tic to  give  bond  will  render  the  sale  of  its  real  estate  void. 


7i6  Kentucky  Opinions. 

APPEAL  FROM  CLARK  CIRCUIT  COURT. 

May  18.  1876. 

Opinion  by  Judge  Pryor: 

This  is  a  proceeding  under  Art.  3,  of  Chap.  63,  of  the  General 
Statutes.  The  Revised  Statutes  provided  that,  "before  a  court  shall 
have  jurisdiction  to  decree  a  sale  of  infants'  lands/'  commissioners 
must  be  appointed  to  report,  and  must  report  under  oath  the  net 
value  of  the  infant's  real  and  personal  estate,  and  the  annual  profit 
thereof,  and  whether  the  interest  of  the  infants  requires  a  sale, 
etc.  Other  steps  were  necessary  in  order  to  give  the  court  jurisdic- 
tion in  such  cases.  By  the  provisions  of  the  General  Statutes,  courts 
of  equity  are  clothed  with  the  jurisdiction  to  sell  the  real  estate  of 
infants.  The  mode  of  proceeding  in  such  cases  is  prescribed  by 
various  sections  of  the  statute,  not  for  the  purpose  of  conferring 
jurisdiction,  but  to  enable  the  chancellor  to  ascertain  whether  the 
interests  of  the  infants  require  that  a  sale  should  be  made.  An 
error  in  the  proceeding  cannot  affect  the  rights  of  the  purchaser. 

If  the  proceedings  are  merely  erroneous  by  reason  of  a  failure 
to  comply  with  the  provisions  of  the  statute,  such  as  the  failure  of 
the  guardian  to  make  oath  to  the  petition,  or  the  commissioners  to 
report,  the  title  in  the  purchaser  after  confirmation  of  the  sale  can- 
not be  affected  by  it,  unless  the  exceptions  to  the  report  of  sale  or 
its  confirmation  brings  the  case  within  the  general  doctrine  author- 
izing the  chancellor  to  set  aside  judicial  sales.  The  petition  filed  by 
the  guardian  presenting  a  cause  of  action  or  alleging  a  state  of  facts 
showing  that  a  sale  of  the  same  will  prove  beneficial  to  the  infant, 
authorizes  the  sale  to  be  made ;  and  for  mere  errors  in  the  proceed- 
ing, a  reversal  can  only  be  had  as  in  other  cases ;  and  the  title  of  the 
purchaser  acquired  under  the  judgment  by  reason  of  the  sale  will 
remain  undisturbed,  unless  for  equitable  reasons  the  chancellor  is 
authorized  to  disregard  it. 

In  general,  the  title  of  the  purchaser  in  such  cases  will  remain  un- 
disturbed unless  there  is  a  failure  on  the  part  of  the  guardian  to 
comply  with  the  provision  of  the  fifth  section  of  the  article  in  ques- 
tion. This  section  reads :  "If  the  guardian  or  committee  of  an  in- 
fant, idiot  or  lunatic  fails  to  give  bond,  the  interest  of  such  infant, 
idiot  or  lunatic  shall  not  be  sold,  and  any  decree,  sale  or  convey- 
ance thereof  shall  be  void."    A  bond  must  be  executed  as  required 


Catharine  Waller's  Adm'r  v.  William  Harrison,  et  al.      717 

by  the  statute  authorizing  that  proceeding,  and  the  omission  to  ex- 
ecute this  covenant  renders  the  whole  proceeding  a  nullity. 

The  bond  executed  in  this  case  is  ample  to  hold  all  the  rights  of 
the  infants.  And  although  not  pursuing  the  letter  of  the  statute,  it 
is  a  substantial  compliance  with  its  provisions.  The  failure  of  the 
guardian  to  make  oath  to  the  petition  cannot  affect  the  rights  of 
the  purchaser.  The  court  below  acted  properly  in  requiring  the 
affidavit  to  be  made  to  this  pleading  upon  the  filing  of  the  exceptions 
to  the  commissioner's  report  of  sale.  The  proceedings  in  this  case 
vested  the  purchaser  with  title. 

Judgment  affirmed. 

Beckner  &  Nelson,  for  appellant. 


Catharine  Waller's  Adm'r  v.  William  Harrison,  et  al. 

Marriage — Conveyance  of  Real  Estate  in  Consideration  of  Marriage. 

A  conveyance  by  a  man  to  a  woman  in  consideration  of  a  marriage 
is  legal  when  the  parties  have  capacity  to  contract. 

Mental  Capacity. 

Mere  mental  imbecility  of  one  of  the  parties  to  a  contract  does  not 
render  the  contract  void.  Such  contracts,  if  fairly  made  and  fully 
executed  without  knowledge  on  the  part  of  the  other  contracting 
party,  are  not  even  voidable  by  the  lunatic  or  by  any  one  claiming 
under  him. 

Creditors  of  Husband. 

Where  a  man  conveya  his  real*  estate  to  a  woman  in  consideration 
of  marriage  and  the  marriage  is  consummated,  his  creditors  cannot 
subject  the  land  to  sale  to  pay  the  grantor's  debts. 

APPEAL  FROM  HICKMAN  CIRCUIT  COURT. 

May  19,  1876. 

Opinion  by  Judge  Cofer: 

The  deed  to  the  land  in  contest  was  made  by  E.  T.  Taylor  to  the 
female  appellee  in  consideration  of  her  agreement  to  marry  him. 
The  marriage  was  consummated  and  the  contract  thus  became  fully 
executed  on  both  sides. 

The  appellant,  who  is  a  creditor  of  Taylor,  and  was  such  at  the 
time  the  deed  was  made,  seeks  to  subject  the  land  thus  conveyed  to 
the  payment  of  his  debt,  upon  two  grounds:     i.    That  the  grantor 


7i8  Kentucky  Opinions. 

was  at  the  time  of  making  the  deed  in  a  state  of  mental  imbecility 
which  incapacitated  him  to  make  a  valid  contract ;  and,  2,  That  the 
grantee,  well  knowing  his  mental  weakness  and  his  peculiar  sus- 
ceptibility in  his  then  demented  condition  to  the  influence  of  women, 
wickedly  and  fraudulently  imposed  upon  him  and  procured  him  to 
make  said  conveyance  to  her,  thereby  intending  to  get  possession  of 
said  land,  and  afterwards  refusing  to  cohabit  with  him,  and  to 
acknowledge  his  marital  rights,  but  treating  him  with  g^eat  in- 
humanity. 

Mere  mental  imbecility,  or  even  lunacy  of  one  of  the  parties  to 
a  contract  does  not  render  the  contract  void.  Such  contracts,  if 
fairly  made  and  fully  executed  without  a  knowledge  on  the  part 
of  the  other  contracting  party,  is  not  even  voidable  by  the  lunatic, 
or  by  any  one  claiming  under  or  through  him.  Breckenridge's  Heirs 
V,  Onnsby,  i  J.  J.  Marsh.  236;  i  Chitty  on  Contracts  401,  and  note 
p.  I. 

It  is  not  proved  that  the  grantee,  who  afterwards  married  Taylor, 
knew  that  he  was  an  imbecile  and  incapable  of  making  a  valid  con- 
tract, and  the  deed  cannot,  therefore,  be  avoided  by  the  appellant 
on  the  first  ground,  even  though  it  be  conceded  that  such  knowledge 
on  her  part  would  entitle  a  creditor  of  the  grantor  to  avoid  the  deed. 
The  evidence  shows  that  Taylor  transacted  important  business  about 
the  time  and  after  the  date  of  the  deed  in  contest,  and  although 
many  witnesses  express  the  opinion  that  he  was  incapable  of  mak- 
ing a  valid  contract,  and  although  the  weight  of  the  evidence,  so 
far  as  it  consists  of  the  mere  opinions  of  non-experts,  is  against  his 
competency,  the  record  fails  to  disclose  a  single  instance  in  which 
he  showed  a  lack  of  capacity  when  brought  to  a  practical  test,  unless 
the  deed  to  his  intended  wife  is  an  exception. 

But  the  evidence  certainly  shows  a  decided  weakness  for  the 
opposite  sex,  and  we  incline  to  the  opinion  that  he  was  so  in  love 
with  the  lady  to  whom  he  made  the  deed  that  he  would  have  been 
incapable  of  resisting  any  demand  she  might  have  made  as  the  con- 
dition upon  which  she  would  marry  him.  There  is,  however,  no 
evidence  whatever  that  she  sought  the  marriage  or  used  any  arts 
to  induce  him  to  make  the  conveyance.  On  the  contrary,  she  seems 
to  have  repeatedly  rejected  his  suit,  and  only  to  have  }ielded  and 
consented  to  marry  him  after  such  repeated  importunities  on  his 
part  both  in  person  and  through  others  as  wholly  forbids  the  con- 


Benjamin  Hatcher  v.  John  F.  Alford,  et  al.  719 

elusions  that  the  marriage  was  of  her  seeking,  or  that  she  at  any 
time  overstepped  the  bounds  of  delicacy  or  strict  propriety. 

The  deed  having  been  made  without  any  unfair  practices,  and 
without  any  knowledge  on  her  part  of  his  imbecility,  if  it  existed, 
and  the  marriage  in  consideration  of  which  the  deed  was  made  hav- 
ing been  consummated,  the  creditors  of  Taylor  cannot  overreach 
her  rights  and  subject  the  land  to  sale  to  pay  his  debts.  Marriage 
is  a  valuable  consideration,  and  the  well  settled  rule  of  law  is  that 
an  antenuptial  conveyance  in  consideration  of  marriage,  if  untainted 
with  fraud,  is  valid  against  antecedent  creditors. 

The  alleged  mistreatment  of  the  grantor  by  his  wife  cannot  affect 
the  question  of  her  right  to  the  land.  If  the  conveyance  was  valid 
when  made,  and  the  contemplated  marriage  took  place,  it  could  not 
be  rendered  invalid  by  her  subsequent  conduct  toward  her  husband, 
and  her  counsel  very  properly  refused  to  go  into  that  question  in 
the  examination  of  witnesses. 

The  appellant  chose  to  submit  his  case  without  revivor,  upon  its 
merits,  and  as  on  the  merits  he  fails  to  show  a  right  to  recover,  he 
was  not  prejudiced  by  an  absolute  dismission  of  his  petition. 

Judgment  affirmed.    Judge  Lindsay  not  sitting. 

W,  R.  Bradley,  Ed  Crossland,  A,  Duvall,  for  appellant. 
E,  L.  Bullock,  for  appellees. 


Benjamin  Hatcher  v.  John  F.  Alford,  et  al. 

Arbitration — Power  of  Arbitrators  to  Correct  Mistake. 

A  board  of  arbitration  after  it  has  made  an  award,  but  before  it 
adjourns,  has  the  power  to  correct  a  mistake. 

APPEAL  PROM  EDMONSON  CIRCUIT  COURT. 

May  20,  1876. 

Opinion  by  Judge  Cofer  : 

The  board  of  arbitration  had  not  adjourned  by  any  act  of  its  own, 
nor  had  its  members  even  separated  after  rendering  and  announc- 
ing their  decision,  before  they  discovered  the  mistake  they  had  made, 
and  they  at  once  announced  that  they  would  correct  the  mistake, 
and  proceeded  to  do  so.  The  appellant  had  gone  from  the  room 
where  the  board  was  sitting  before  the  mistake  was  discovered,  but 


720  Kentucky  Opinions. 

his  attorney  came  in  and  learned  that  a  mistake  had  been  made,  and 
that  it  was  proposed  at  once  to  correct  it;  and  the  appellant  does 
not  deny  that  he  knew  what  was  going  on,  and  does  not  claim  that 
he  had  not  an  opportunity  to  be  present.  Nor  does  he  rest  his  case 
on  the  ground  that  he  had  no  opportunity  to  be  heard,  or  that  any 
injustice  was  done  hiiru  If  the  board  had  legal  authority,  after 
announcing  its  decision  and  delivering  to  him  a  copy,  to  correct  a 
mistake  the  existence  of  which  is  not  disputed.  The  whole  case  is 
rested  on  the  ground  that  when  the  decision  was  made  out,  signed 
in  triplicate,  and  a  copy  delivered  to  the  appellant,  the  board  eo  in- 
stanti  lost  all  power  over  the  case,  and  stood  adjourned  by  opera- 
tion of  law,  except  for  the  purpose  of  giving  a  certificate  of  costs 
and  the  making  of  a  bill  of  exceptions. 

It  is  not  necessary,  in  this  case,  to  decide  how  long  the  power  of 
the  board  to  correct  a  mistake  continues  after  its  decision  is  an- 
nounced and  a  copy  is  delivered  to  the  successful  party.  The  only 
question  to  be  decided  is  whether  such  correction  can  be  made  at 
all.  We  know  of  no  tribunal,  however  great  or  small  its  jurisdic- 
tion and  powers  may  be,  or  what  its  nature  or  character  is,  that  is 
so  restricted  in  its  authority  that,  having  once  announced  its  de- 
cision, is  in  an  instant  powerless  to  recall  that  decision,  however  erro- 
neous it  may  be. 

We  think  that  under  the  facts  in  this  case  the  board  has  power 
to  correct  the  mistake,  and  that  having  done  so,  the  decision  at  first 
made  was  thereby  revoked,  and  that  the  court  properly  refused  to 
award  a  mandamus. 

Judgment  afUnned. 

P.  T.  Edwards,  A.  Duvall,  for  appellant. 

/.  IV.  Rodman,  R.  Rodes,  Hazelip  &  Botts,  for  appellees. 


W.  T.  Evans  v.  H.  R.  Ryan. 

Partnership— Fraud — Contract. 

Where  there  Is  fraud  In  a  contract  vitiating  a  part  of  It,  it  will  viti- 
ate the  whole  contract,  and  a  party  cannot  hold  on  to  a  part  of  a  con- 
tract and  repudiate  such  part  as  he  may  select. 


W.  T.  Evans  z\  H.  R.  Ryan.  721 

Contract  of  Firm. 

Where  in  a  partnership  contract  it  is  stipulated  that  either  party 
may  sell  his  interest  in  the  partnership  to  any  purchaser  who  is  sat- 
isfactory to  the  other,  and  does  so  to  one  who  is  satisfactory  but  the 
remaining  partner  for  the  fraudulent  purpose  of  extorting  money  from 
the  partner  desiring  to  sell  refuses  to  consent  to  the  sale,  he  is  guilty 
of  a  breach  of  the  contract,  and  the  other  partner  is  entitled  to  recover 
from  him  such  damages  as  he  sustains  by  the  refusal. 

APPEAL  FROM  JEFFERSON  COURT  OF  COMMON  PLEAS. 

September  4,  1876. 

Opinion  by  Judge  Cofer: 

By  the  terms  of  the  contract  between  the  parties  the  appellant 
purchased  the  appellee's  interest  in  the  firm  of  Ryan  &  Evans,  and 
assumed  his  liability  to  Stokes  and  Rufer  for  the  rent  of  the  hotel 
they  were  operating  as  partners,  and  such  debts  as  the  firm  then 
owed,  and  released  the  appellee  from  his  liability  for  one-half  of  the 
money  advanced  to  the  firm  by  the  appellant;  and  in  consideration 
thereof  the  appellee  transferred  all  his  interest  in  the  property  and 
effects  of  the  firm,  and  executed  to  the  appellant  the  note  sued  upon 
for  one  thousand  dollars. 

All  these  matters  were  embraced  in  a  single  contract,  and  that 
contract  must  stand  or  fall  as  a  unit.  If  there  is  fraud  in  it  which 
vitiates  a  part,  it  must  vitiate  the  whole,  and  the  appellee  cannot 
affirm  and  hold  on  to  a  part  and  repudiate  such  portion  as  he  may 
select.  He  must  choose  between  abiding  the  whole  and  rescinding 
the  whole;  and  as  he  has  not  offered  to  rescind,  he  must  be  taken 
to  have  elected  to  allow  the  contract  as  a  whole  to  remain  as  made. 

But  if,  as  the  appellee  claims,  one  of  the  stipulations  of  the  con- 
tract of  partnership  was,  that  should  either  party  at  any  time  de- 
sire to  retire  from  the  partnership  he  was  to  have  the  right  to  sell 
and  convey  his  interest  therein  to  any  one  whom  he  might  present 
as  a  purchaser  who  was  satisfactory  to  the  other  as  a  partner,  and 
he  did  present  J.  C.  Ray,  and  Ray  was  willing  to  buy  and  was  satis- 
factory to  the  appellant,  and  the  appellant,  for  the  fraudulent  pur- 
pose of  extorting  money  from  the  appellee,  refused  to  consent  to 
the  sale,  the  appellant  was  guilty  of  a  breach  of  the  contract  of 
partnership,  and  the  appellee  has  a  right  to  recover  on  his  counter- 
claim, and  to  be  recouped  out  of  the  note  for  such  damages  as  he 
sustained  by  the  refusal.  If,  on  the  other  hand,  the  stipulation  was, 
as  claimed  by  the  appellant,  that  neither  party  should  sell  except  to 

46 


722  Kentucky  Opinions. 

such  person  as  the  other  should  consent  to  as  a  partner,  the  appel- 
lant had  a  right  to  withhold  his  consent,  although  he  may  not  have 
had  any  objection  to  Ray  as  a  partner. 

In  the  one  case  the  appellee  had  an  absolute  right  to  sell  whenever 
he  procured  a  purchaser  acceptable  to  the  appellant;  in  the  other, 
no  matter  how  acceptable  the  offered  purchaser  might  be,  he  could 
not  sell  to  him  without  the  appellant's  consent.  If  the  latter's  ver- 
sion of  the  contract  is  correct,  he  might  well  have  said:  "Ray  is 
not  objectionable  to  me,  but  I  will  not  consent  that  you  may  sell 
to  him,  unless  you  will  pay  me  a  bonus  of  one  thousand  dollars." 
This  would  have  been  no  violation  of  the  contract,  if  it  was  as  the 
appellant  claims,  for  whether  he  would  or  not  consent  to  a  sale  was 
a  matter  of  volition;  and  he  had  a  right  to  withhold  his  consent 
without  a  reason  for  so  doing. 

But  if  the  contract  was  as  the  appellee  claims,  he  had  a  right  to 
sell,  and  when  he  presented  Ray  as  a  purchaser,  the  question  was 
not  whether  the  appellant  would  consent  to  a  sale — ^appellee  already 
had  that  right  secured  by  his  contract — but  the  question  was  whether 
Ray  was  satisfactory  to  the  appellant  as  a  partner  in  the  business 
of  keeping  a  hotel ;  and  if  he  was  such  a  person,  and  the  appellant 
refused  to  say  so,  but  said  he  was  not,  not  because  that  was  true, 
but  for  the  purpose  of  forcing  the  appellee  to  sell  to  him  for  less 
than  Ray  was  willing  to  give,  he  violated  his  contract  and  is  re- 
sponsible in  damages.  To  say  that  Ray  was  not  satisfactory  when  in 
fact  he  was,  was  a  falsehood,  and  if  he  said  so  for  the  purpose  of 
preventing  a  sale  to  Ray  in  order  that  he  might  compel  the  appellee 
to  remain  in  the  firm,  or  to  sell  to  him  at  less  than  Ray  was  willing 
to  give,  such  refusal  was  a  breach  of  contract  and  a  fraud  in  law. 

But  the  court  did  not  submit  to  the  jury  the  question  at  issue  be- 
tween the  parties  as  to  what  the  contract  was  upon  this  point,  but 
in  effect  it  assumed  that  the  appellee  had  a  right  under  the  contract 
to  sell  to  any  one  who  was  acceptable  to  the  appellant  as  a  partner, 
whereas  the  appellant  denied  that  such  was  the  contract  and  insisted 
that  by  its  terms  the  appellee  had  no  right  to  sell  to  any  one,  how- 
ever acceptable,  without  his  consent.  And  as  the  appellee  cannot 
insist  upon  the  matters  set  forth  in  his  answer  as  a  defense  to  the 
action  upon  the  note,  but  is  confined  to  his  counterclaim  for  dam- 
ages for  a  breach  of  the  contract  of  partnership,  the  amount  of  such 
damage  should  be  submitted  to  the  decision  of  the  jury. 


Commonwealth  v.  G.  W.  Wainscott.  723 

Judgment  reversed,  and  cause  remanded  for  a  new  trial  upon 
principles  not  inconsistent  with  this  opinion. 

Edwards  &  Seymour,  for  appellant. 

Lane  &  Harrison,  Barrett  &  Brown,  for  appellee. 


Commonwealth  v,  G.  W.  Wainscott. 

Criminal  Law — ^Indictment. 

A  defendant  cannot  be  required  to  plead  to  an  indictment  not  in- 
dorsed "a  true  bill"  and  signed  as  prescribed  by  §  118  of  the  Code. 

Indorsements  on  Indictment 

The  names  of  witnesses  are  required  to  be  indorsed  on  an  indict- 
ment, but  where  this  is  not  done  before  the  return  by  the  grand  Jury, 
it  may  be  done  by  the  commonwealth's  attorney  after  that  time. 

APPEAL  FROM  OWEN  CIRCUIT  COURT. 
September  5,  1876. 

Opinion  by  Judge  Cofer  : 

There  can  be  no  indictment  without  the  indorsement  and  sig- 
nature required  by  Code,  Sec.  118.  That  is  the  evidence,  and  the 
only  evidence,  that  the  indictment  has  been  found  by  the  grand  jury 
to  be  a  true  bill  and  cannot  be  dispensed  with ;  and  if  a  writing  pur- 
porting to  be  an  indictment  has  no  such  indorsement  upon  it,  the 
defendant  cannot  be  required  either  to  plead  or  move  to  set  it  aside. 
He  may  stand  mute,  disregarding  it  altogether. 

Not  so,  however,  of  the  requirement  of  Sec.  119.  The  indict- 
ment and  the  evidence  that  it  has  been  found  "a  true  bill"  are  com- 
plete without  the  names  of  the  witnesses  on  whose  testimony  it  was 
found.  The  names  of  the  witnesses  should  be  indorsed,  and  when 
the  proper  steps  are  taken  by  the  defendant  they  must  be  indorsed. 
But  the  statute  does  not  say  when  or  by  whom  the  indorsement  is 
to  be  made.  The  names  of  the  witnesses  are  required  to  be  indorsed 
in  order  to  enable  the  defendant  to  see  upon  whose  testimony  he  is 
charged,  that  he  may  be  the  better  enabled  to  meet  the  accusation. 
This  would  have  been  as  well  accomplished  by  allowing  the  com- 
monwealth's attorney  to  make  the  indorsement,  as  he  offered  to  do, 
as  if  it  had.  been  done  before  the  indictment  was  returned  into  court, 
and  in  our  opinion  the  court  erred  in  not  permitting  him  to  do  so. 


724  Kentucky  Opinions. 

If,  in  consequence  of  not  having  previously  known  the  names  of 
the  witnesses  against  him,  the  defendant  was  not  ready  for  trial, 
it  was  in  the  power  of  the  court  to  prevent  injustice  to  him  by  allow- 
ing a  continuance. 

Judg^ient  reversed,  and  cause  remanded  with  directions  to  allow 
the  attorney  to  indorse  the  names,  as  he  offered  to  do ;  and  if  that  be 
done,  to  overrule  the  motion  to  set  aside  the  indictment,  and  if  it  be 
not  done,  to  dismiss  the  indictment. 

Moss,  for  appellant.     J,  D,  Lillard,  for  appellee. 


Commonwealth  v,  M.  D.  Hardin. 

Criminal  Law — Intoxicating  Liquors. 

Where  the  proprietor  of  a  place  where  intoxicating  liquors  are  sold 
was  present  and  saw  his  bartender  sell  liquor  in  violation  of  law  he 
is  guilty  the  same  as  if  making  the  sale  himself. 

APPEAL  FROM  WAYNE  CIRCUIT  COURT. 

September  5,  1876. 

Opinion  by  Judge  Cofer  : 

The  court  erred  in  not  permitting  the  witness,  Tuttle,  to  answer 
whether,  at  any  time  within  twelve  months  before  the  finding  of 
the  indictment,  he  had  purchased  spirituous  liquors  in  defendant's 
saloon,  in  the  defendant's  presence,  from  his  bartender. 

If  the  defendant  was  present  and  saw  his  bartender  sell  to  the 
witness,  he  is  legally  guilty  as  though  he  had  sold  the  liquor  him- 
self. 

Judgment  reversed,  and  cause  remanded  for  further  proceedings. 

George  Denny,  for  appellant.     T.  E.  Moss,  for  appellee. 


James  Hanlon  v.  Joanna  Hanlon. 

Husband  and  Wife— Divorce— Wife's  Real  Estate. 

Where  real  estate  is  purchased  from  the  earnings  of  the  husband 
and  by  his  consent  and  direction  is  conveyed  to  the  wife,  he  Is  not  en- 
titled to  such  real  estate  upon  the  granting  of  a  divorce  to  the  wife, 
where  the  wife  has  not  been  guilty  of  fraud  in  procuring  the  convey- 
ance. 


James  Hanlon  v,  Joanna  Hanlon.  725 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

September  5,  1876. 

Opinion  by  Judge  Cofer  : 

The  appellant  and  appellee  were  married  some  time  in  the  year 
1864.  At  the  time  of  their  marriage  the  appellee  had  on  deposit  with 
Stevin  &  Cain  the  sum  of  about  $1,784.00,  and  in  August  of  that  year 
she  purchased  a  house  and  lot  at  the  price  of  $1,200.00,  which  was 
paid  for  with  a  part  of  that  money,  and  conveyed  to  her.  In  Oc- 
tober of  the  same  year  she  purchased  another  house  and  lot,  and  in 
April,  1868,  she  purchased  another,  both  of  which  were  conveyed 
to  her,  without  limitations.  In  1874  she  brought  this  suit  for  a 
divorce,  and  to  be  adjudged  entitled  to  the  use  and  occupation  of 
said  houses  and  lots  free  from  the  interference  of  the  appellant. 

The  appellant  answered,  and  among  other  things  alleged  that  the 
house  on  the  lot  first  purchased  was  in  need  of  repairs  to  make  it 
habitable,  and  that  he  repaired  it  at  a  cost  of  $1,000.00  He  also 
alleged  that  the  other  houses  and  lots  were  paid  for  with  his  means ; 
that  it  was  his  custom  after  his  marriage  to  turn  over  his  earnings 
to  the  appellee  to  be  taken  care  of,  and  as  he  accumulated,  he,  at 
her  suggestion,  purchased  said  houses  and  lots,  she  suggesting  that 
that  course  would  be  safest  for  them ;  and  that  not  knowing  that  the 
title  so  held  would  not  secure  the  property  to  him,  he  had  it  con- 
veyed to  her.  He  asked  that  she  be  compelled  to  convey  each  of  said 
houses  and  lots  to  him. 

The  appellee,  in  her  reply,  denied  that  any  of  the  houses  and  lots 
were  purchased  by  the  appellant,  or  that  either  had  been  paid  for 
with  his  money,  but  alleged  that  they  were  paid  for  with  money  she 
had  when  they  were  married,  and  from  the  rents  of  the  house  and 
lot  first  purchased,  and  with  her  personal  earnings  during  the  mar- 
riage. 

The  chancellor  rendered  judgment  divorcing  the  appellee,  and  de- 
nied appellant's  prayer  for  a  judgment  compelling  her  to  convey  to 
him  the  two  houses  and  lots  claimed  in  his  answer ;  and  from  the  lat- 
ter branch  of  the  judgment  he  has  appealed. 

An  effort  was  made  on  the  part  of  the  appellee  to  show  that  the 
appellant  had  been  an  idler  and  had  not  earned  more  than  a  support 
for  the  family,  and  that  her  own  earnings  were  sufficient,  when 
added  to  the  rents  of  the  house  first  purchased  and  the   money   she 


726  Kentucky  Opinions. 

had  when  they  were  married,  to  pay  for  the  houses  and  lots  in  con- 
test. 

We  think  the  evidence  shows  that  the  appellant  has  been  ordina- 
rily industrious  and  frugal,  and  that  the  two  lots  were  paid  for  in 
part  at  least  with  his  individual  earnings.  But  we  do  not  regard 
that  question  as  very  important.  Nor  do  we  regard  the  fact  that,  as 
a  matter  of  law,  the  money  which  the  appellee  had  at  the  time  of  the 
marriage  and  that  which  she  earned  afterwards,  as  well  as  the  rent 
of  the  house  first  purchased,  belonged  to  her  husband,  as  material. 

If  it  be  conceded  that  the  property  was  all  paid  for  with  money 
belonging  to  the  appellant,  the  decision  must  be  the  same  that  it 
would  be  if  it  were  conceded  that  it  was  wholly  paid  for  with  money 
which  belonged  to  the  appellee  before  marriage.  The  conveyances 
were  made  to  her  with  the  knowledge  and  consent  of  her  husband, 
and  upon  the  most  favorable  view  claimed  by  him  must  be  regarded 
as  a  gift  to  her,  which  he  is  not  entitled  to  reclaim  upon  the  granting 
of  a  divorce  to  her.  Phillips  v.  Phillips,  9  Bush  183.  It  is  not 
charged  that  the  appellee  was  guilty  of  fraud  in  procuring  the  deed 
to  be  made  to  herself,  and  the  alleged  ignorance  on  the  part  of  the 
appellant  that  the  conveyance  to  her  would  not  secure  the  title  to 
him  cannot  affect  the  decision  of  the  question.  He  does  not  say  that 
she  represented  to  him  that  title  conveyed  to  her  would  be  to  his 
benefit.  All  he  says  is,  that  she  represented  that  it  would  be  safest 
to  have  the  title  conveyed  to  her,  and  he  partially  explains  in  his 
deposition  what  she  meant  by  that,  viz. :  that  it  might  save  the  prop- 
erty from  creditors  in  the  event  he  should  become  insolvent ;  and  he 
seems  to  have  understood  that  view  of  the  subject.  It  is,  therefore, 
hardly  probably  that  he  was  ignorant  of  the  effect  of  the  conveyances 
to  his  wife. 

To  decide  that  a  husband  who  has  purchased  property  and  had  it 
conveyed  to  his  wife,  may  recover  it  when  she  obtains  a  divorce  from 
him  on  the  ground  of  cruel  treatment,  would  be  to  establish  a  prece- 
dent dangerous  in  the  extreme  to  the  peace  of  families,  and  detri- 
mental to  the  best  interests  of  society. 

The  judgment  of  the  chancery  court  must  be  affirmed. 

M.  Mundy,  for  appellant,    Badley  &  Simrdll,  for  appellee. 


Commonwealth  v.  C.  O.  Allard.  727 

Commonwealth  v,  C.  O.  Allard. 

Criminal  Law — Concealed  Weapons. 

An  Indictment  for  carrying  concealed  weapons  is  good  where  the 
charge  is  made  in  the  language  of  the  statute. 

Indictment. 

In  an  indictment  for  carrying  concealed  weapons  it  is  not  necessary 
to  aver  that  the  defendant  was  not  within  the  exceptions  provided  for 
in  a  separate  section  of  the  statute.  Such  exceptions  are  matters  of 
defense. 

appeal  prom  Mccracken  circuit  court. 

September  5,  1876. 
Opinion  by  Judge  Lindsay  : 

The  indictment  in  this  case  is  good.  It  charges  substantially,  in 
the  language  of  the  statute,  that  the  defendant  unlawfully  carried 
concealed  on  his  person  a  pistol,  the  same  being  a  deadly  weapon. 
The  descriptive  part  of  the  indictment  does  not  state  that  the  weapon 
was  a  deadly  one,  but  the  facts  set  out  in  the  body  of  the  pleading 
constitute  a  public  offense,  and  gave  notice  to  the  defendant  of  what 
is  intended.  The  general  descriptive  charge  may,  therefore,  be 
treated  as  surplusage. 

It  is  not  necessary  to  aver  that  the  defendant  was  not  within  the 
exceptions  provided  for  in  a  separate  section  of  the  statute.  These 
exceptions  are  matters  of  defense  which  must  be  affirmatively  proved 
by  the  party  defending  under  them. 

Judgment  reversed  and  cause  remanded  for  further  proper  pro- 
ceedings. 

5.  A,  Neal,  Moss,  for  appellant. 


National  Bank  of  Monticello  v.  J.  M.  Bryant,  et  al. 

Commercial  Paper — Indorsement. 

The  eftect  of  indorsing  a  bill  or  note  is  a  conditional  contract  on  the 
part  of  the  indorser  to  pay  in  case  of  the  acceptor's  or  maker's  default, 
provided  proper  and  prompt  measures  be  taken  to  fix  the  liability  of 
the  indorser  by  making  demand  and  giving  him  notice  of  the  default. 

Days  of  Grace. 

The  presentment  and  demand  necessary  to  make  an  indorser  of  a 
bill  or  note  liable  must  be  made  on  the  last  day  of  grace.  If  made 
after  the  last  day  or  before  the  last  day  only,  such  indorser  is  dis- 
charged. 


7^8  Kentucky  Opinions. 

appeal  from  jefferson  court  of  common  pleas. 

September  6,  1876. 
Opinion  by  Judge  Cofer  : 

It  is  a  fundamental  doctrine  of  the  law  merchant  that  the  effect  of 
indorsing  a  bill  or  note  is  a  conditional  contract,  on  the  part  of  the 
indorser,  to  pay  the  immediate  or  any  succeeding  indorsee  or  holder 
of  the  bill,  in  case  of  the  acceptor's  or  maker's  default,  provided 
proper  and  prompt  measures  be  taken  to  fix  the  liability  of  the  in- 
dorser by  making  demand  and  giving  him  notice  of  the  default. 
Byles  on  Bills,  p.  2. 

It  is  consequently  well  settled  that  in  order  to  charge  the  indorser 
of  a  bill  of  exchange,  or  of  a  promissory  note  placed  upon  the  foot- 
ing of  a  bill,  the  instrument  must  be  presented  for  payment,  and 
due  notice  of  dishonor  must  be  given  to  all  persons  intended  to  be 
held  liable  and  who  would  have  a  right,  upon  paying  it,  to  maintain 
an  action  thereon.  Smith  Mercantile  Law,  pp.  303-4 ;  Byles  on  Bills, 
pp.  169-170. 

Such  presentment  and  demand  must  be  made  on  the  last  day  of 
grace.  Battertons  v.  Porter,  2  Litt.  388 ;  Pintt  v.  Eads,  1  Blackford 
182 ;  Bussard  v.  Levering,  6  Wheaton  102.  If  not  made  until  after 
that  day  is  passed,  it  will  be  ineffectual  to  charge  the  indorsers 
(IVoodbridge  v.  Brigham,  12  Mass.  403;  Davis  v,  Herrick,  6  Ohio 
55)  unless  presentment  and  demand  be  waived  by  the  parties,  or 
be  excused  by  some  fact  which  prevented  the  holder,  although  ex- 
ercising reasonable  diligence,  from  making  presentment  and  demand 
in  proper  time.  SchoHeld  &  Taylor  7'.  Bayard,  et  aL,  3  Wend.  488 ; 
Windham  Bank  v.  Norton,  Converse  &  Co,,  22  Conn.  213. 

If  presentment  and  demand  be  not  made  until  after  the  expiration 
of  the  last  day  of  grace  the  indorsers  will  be  discharged  (Wooi- 
bridge  v,  Brigham,  12  Mass.  403 ;  Davis  v,  Herrick,  6  Ohio  55),  un- 
less presentment  on  that  day  be  excused,  in  which  case  it  must  be 
made  as  soon  thereafter  as  is  reasonably  practicable.  Windham 
Bank  V.  Norton,  Converse  &  Co.,  22  Conn.  213 ;  Morgan,  et  aL,  v. 
Bank  of  Louisznlle,  4  Bush  82. 

Applying  these  principles  to  the  case  in  hand,  its  solution  is  not 
difficult.  The  appellees,  who  were  indorsers  of  a  note  negotiable  and 
payable  in  the  National  Bank  of  Monticello,  Ky.,  denied  that  said 
note  was  duly  presented  at  the  counter  of  the  bank  and  payment  de- 
manded and  refused.    The  evidence  showed  that  the  note  was  dis- 


Commonwealth  v,  C.  O.  Allard.  729 

counted  by  the  bank  and  held  by  it  at  maturity,  and  that  the  makers 
had  no  funds  there  with  which  to  make  payment.  It  was,  therefore, 
not  necessary  to  make  a  special  and  formal  demand  in  order  to 
charge  the  indorsers.  Folger,  et  aL,  v.  Chase,  et  aL,  Ex'rs,  18  Pick. 
63 ;  Jenks  v.  Doylestoum  Bank,  4  Watts  &  Serg.  505. 

But  the  evidence  also  shows  that  the  note  was  protested  October 
27,  which  was  the  first,  instead  of  the  last  day  of  grace,  and  that  it 
was  then  delivered  to  an  attorney  to  institute  suit  thereon,  and  that 
October  30,  the  day  after  the  last  day  of  grace,  he  returned  it  to  the 
bank  and  called  attention  to  the  fact  that  it  had  been  prematurely 
protested ;  but  no  formal  demand  was  then  made,  all  that  was  then 
done  being  simply  to  change  the  date  of  the  former  protest  from  the 
27th  to  the  29th. 

If  the  note  had  been  at  the  bank  in  the  custody  of  its  officers  on  the 
29th,  the  last  day  of  grace,  no  presentment  and  demand  would  have 
been  necessary,  i  Daniel  on  Negotiable  Instruments  486.  But  it 
was  not  there,  and  the  failure  to  have  it  there  has  no  other  excuse 
than  the  unexplained  oversight  of  the  officer  of  the  bank.  As  already 
seen,  the  undertaking  of  the  indorsers  was  conditional,  and  one  of 
these  conditions  was  that  the  holder  of  the  note  would  make  due 
presentment  and  demand  at  the  time  and  place  of  payment.  The 
holders  having  failed  to  perform  the  condition  upon  which  the  in- 
dorsers undertook  to  be  bound,  they  are  discharged.  Chickopee  Bank 
V.  Philadelphia  Bank,  8  Wall.  641. 

This  seems  at  first  blush  a  rigid  rule,  but  it  must  be  borne  in  mind 
that  the  appellees  were  not  the  injured  debtors  of  the  bank.  They 
merely  undertook  upon  certain  well  understood  conditions  to  answer 
for  the  default  of  the  makers  of  the  note,  and  they  cannot  be  held 
liable  otherwise  than  by  the  terms  of  their  agreement.  If  the  appel- 
lant could  part  with  the  possession  of  the  note  until  the  day  after  the 
expiration  of  the  days  of  grace,  and  then  do  that  which  should  have 
been  done  the  day  before,  and  still  hold  the  indorsers  liable,  no 
reason  is  perceived  why  they  might  not  have  waited  for  a  month  or 
a  year. 

It  is  not  necessary  in  such  a  case  that  the  indorsers  should  show 
that  they  have  been  prejudiced  by  the  delay.  It  is  enough  that  by  the 
terms  of  their  contract  they  were  only  liable  in  case  such  delays  did 
not  occur. 

Alexander,  Dickinson,  for  appellant. 
Gibson  &  Gibson,  for  appellees. 


730  Kentucky  Opinions. 

Commonwealth  v.  J.  Z.  Turrell. 

Recognizance  Bond — Validity. 

Where  a  recognizance  bond  does  not  show  that  the  principal  therein 
was  in  custody  charged  with  a  public  offense,  it  fails  to  show  any  con- 
sideration for  its  execution  and  Is  invalid. 

Consideration. 

A  recognizance  bond,  unlike  ordinary  contracts,  does  not  import  a 
consideration. 

APPEAL  FROM  BALLARD  CIRCUIT  COURT. 

September  7,  1876. 

Opinion  by  Judge  Cofer: 

As  decided  at  the  present  term  in  Commonwealth  v.  Newton,  the 
circuit  court  had  no  jurisdiction  of  this  case;  but  as  the  bond  made 
the  foundation  of  the  proceeding  is  invalid,  the  commonwealth  has 
not  been  prejudiced  by  the  judgment  appealed  from. 

The  bond  does  not  show  that  the  principal  therein  was  in  custody 
charged  with  a  public  oflFense,  and  therefore  fails  to  show  any  consid- 
eration for  its  execution.  The  bond  does  not,  like  ordinary  written 
contracts,  import  a  consideration.    Criminal  Code,  Sec.  80. 

Judgment  affirmed. 

T.  E.  Moss,  for  appellant.    Btigg  &  Bishop,  for  appellee. 


Vernetta  p.  Young,  et  al.,  v.  J.  J.  Nesbitt,  et  al. 

Husband  and  Wife— Wife's  Property. 

Where  a  woman  took  a  vested  remainder  in  property  at  the  death 
of  her  father  and  afterwards  married,  such  interest  vested  in  her  hus- 
band upon  her  marriage. 

Wife's  Property. 

Where  the  wife's  property  is  invested  In  lands  but  conveyed  to  the 
husband,  he  is  liable  to  her  as  between  themselves,  but  this  will  not 
prevent  creditors  from  subjecting  such  land  to  the  payment  of  his 
debts  and  the  wife's  rights  are  postponed  to  those  of  his  creditors. 

APPEAL  FROM  BATH  CIRCUIT  COURT. 
September  8,  1876. 

Opinion  by  Judge  Cofer  : 

The  appellees,  having  obtained  judgments  in  the  Bath  circuit 


Vernetta  p.  Young,  et  al.,  v.  J.  J.  Nesbitt,  et  al.       731 

court  against  the  appellant,  Sinnett  Young,  caused  executions  of  fi. 
fa.  to  issue  thereon,  which  were  levied  upon  a  tract  of  1 14  acres  of 
land  situated  in  that  county,  as  the  property  of  said  Young.  The 
sheriff  advertised  that  he  would  sell  the  land  on  October  12,  1874. 
On  that  day  Young  and  his  wife  instituted  this  suit  in  the  Bath  cir- 
cuit court  against  the  appellees,  in  which  Mrs.  Young  asserted  title 
to  the  land  and  sought  to  have  it  settled  upon  and  conveyed  to  her. 

The  facts  upon  which  she  bases  her  claim  to  the  relief  sought  are 
these.  She  is  the  daughter  of  John  Arnold,  who  died  testate  at  his 
domicile  in  Mason  County,  Ky.,  in  1829.  By  his  will  he  gave  all  his 
estate,  except  some  small  legacies,  to  his  wife  until  his  youngest 
child  should  arrive  at  the  age  of  twenty-one  years,  which  would  be 
in  1849,  2ind  then  to  be  disposed  of  according  to  the  law  of  descents 
and  distribution.  Among  other  property  left  by  the  testator  was  a 
female  slave  named  Peggy,  who  gave  birth  to  two  children,  one  in 
1845, 2i"d  the  other  in  1847.  Mrs.  Young  was  married  to  her  present 
husband  July  19,  1845,  ^^d  in  1851  the  estate  of  her  father  was 
divided  between  his  children,  and  the  two  children  of  Peggy  were 
allotted  to  Mrs.  Young,  and  soon  thereafter  came  into  the  possession 
of  her  and  her  husband,  where  they  remained  and  were  regarded  and 
spoken  of  by  both  the  husband  and  wife  as  belonging  to  the  latter. 
One  of  the  slaves  was  sold  in  the  latter  part  of  1859  for  $1,450  and 
the  other  in  January,  i860,  for  $1,250.  The  sale  of  one  seems  to 
have  been  negotiated  by  Mrs.  Young,  and  of  the  other  by  her  hus- 
band, acting  at  her  request  and  for  her.  The  price  of  both  seems  to 
have  been  kept  by  Mrs.  Young  under  her  personal  control,  or  in  the 
hands  of  her  step-father  and  former  guardian. 

Before  the  sale  of  the  last  of  the  two  slaves,  Mrs.  Young  made  an 
agreement  with  her  brother,  John  D.  Arnold,  to  buy  from  him  the 
tract  of  land  now  in  contest,  provided  she  could  sell  the  slave ;  and  on 
the  day  after  the  sale,  which  was  early  in  January,  i860,  the  agree- 
ment was  concluded  and  Mrs.  Young  and  her  husband  took  posses- 
sion of  the  land  and  have  resided  on  it  ever  since.  The  slaves  did 
not  sell  for  enough  to  pay  for  the  land,  but  the  residue  was  paid  out 
of  money  received  from  the  estate  of  Mrs.  Young's  father,  and  the 
whole  was  paid  by  her  in  person  or  by  her  step-father,  in  whose 
hands  she  had  placed  a  part  of  the  proceeds  of  the  sale  of  the  slaves. 
No  bond  or  other  written  memorial  of  the  contract  was  entered  into 
at  the  date  or  the  purchase,  but  the  evidence  shows  that  it  was  under- 
stood between  Mrs.  Young  and  Arnold  that  the  title  was  to  be  made 
to  her;  and  it  may  be  inferred  from  the  circumstances  disclosed  by 


732  Kentucky  Opinions. 

the  record,  that  the  husband  acquiesced  in  that  arrangement,  but  his 
express  assent  is  not  proved. 

In  March,  i860,  Arnold,  in  the  absence  of  Mrs.  Young  and  her 
husband,  and  without  the  knowledge  of  either,  executed,  acknowl- 
edged, and  caused  to  be  recorded,  a  deed  conveying  the  land  to  Mr. 
Young.  But  before  the  execution  of  the  deed,  to  wit,  January  26, 
i860,  he  executed  and  delivered  to  Mrs.  Young,  who  has  held  it  ever 
since,  the  following  writing,  viz. : 

*'An  article  of  agreement  between  Sinnett  Young,  of  the  county  of 
Bath,  and  state  of  Kentucky,  on  the  first  part,  Vernetta  P.  Young,  his 
wife,  on  the  second  part,  it  is  agreed  that  for  and  in  consideration 
of  her  interest  in  the  property  in  the  city  of  Maysville,  and  the  sale 
of  her  slaves,  Charles  and  Mimma,  she  is  to  have  the  farm  that  was 
bought  of  John  Arnold,  in  her  name,  for  her  use  and  benefit.  This 
27th  of  January,  i860.  Sinnett  Young." 

In  a  very  short  time  after  the  execution  of  the  deed,  Mrs.  Young 
read  it  and  became  aware  that  tlie  land  had  been  conveyed  to  her  hus- 
band. She  immediately  consulted  her  step-father  and  former  guard- 
ian, who  assured  her  that  she  could  always  prove  that  she  paid  the 
purchase  money,  and  that  she  would  be  able  to  successfully  assert 
her  claim  to  the  land  at  any  time,  and  advised  her  to  let  the  matter 
rest,  and  she  did  so.  She  always  spoke  of  and  claimed  the  land  as 
her  own,  and  often  did  so  in  the  presence  of  her  husband,  who  never 
disputed  her  claim,  but  repeatedly  spoke  of  the  land  as  belonging 
to  her ;  but  the  evidence  fails  to  show  that  she  ever  spoke  to  him  of 
the  deed  having  been  made  to  him,  or  that  he  ever  expressly  agreed 
that  it  should  be  made  to  her,  or  admitted  that  it  was  improperly 
made  to  him.  It  does  not  appear  that  the  appellees  had  any  notice  of 
Mrs.  Young's  claim  until  this  suit  was  commenced. 

Upon  this  state  of  fact  the  circuit  court  adjudged  the  land  sub- 
ject to  the  husband's  debts,  and  this  appeal  is  prosecuted  from  that 
judgment.  The  first  position  assumed  by  Mrs.  Young's  counsel  is 
that  the  land  was  purchased  by  her,  with  the  assent  of  her  husband, 
and  paid  for  with  her  money,  and  that  the  deed  was  made  to  her  hus- 
band by  mistake,  and  therefore  he  holds  the  land  in  trust  for  her; 
while  it  is  contended  by  counsel  for  the  appellees  that  the  two  slaves 
and  the  money  received  from  John  Arnold's  estate  belonged  to  the 
husband,  and  consequently,  that  there  cannot,  under  any  circum- 
stances, be  a  resulting  trust  in  favor  of  Mrs.  Young. 


Vernetta  p.  Young,  et  al.,  v,  J.  J.  Nesbitt,  et  al.       733 

We  think  it  entirely  clear  that  the  slaves  and  the  money  used  in 
paying  for  the  land  belonged  to  Mr.  Young.  The  testator  gave  his 
estate  to  his  wife  until  his  youngest  child  attained  majority,  and  then 
directed  that  it  should  be  divided  and  distributed  according  to  the 
law  of  descent  and  distribution.  Whether  the  property  be  treated 
as  passing  under  the  will  or  as  passing  under  the  statute,  subject  to 
the  particular  estate  given  to  the  testator's  widow  by  the  will,  the 
result  will  be  the  same  so  far  as  the  rights  of  Mrs.  Young  are  con- 
cerned. In  either  case  she  took  a  vested  remainder  at  the  death  of 
her  father.  Title  either  by  descent  or  by  purchase  vested  in  her  then, 
the  period  of  enjoyment  alone  was  postponed.  She  and  her  coheirs 
or  codevisees  took  a  joint  estate  in  remainder  in  the  woman  Peggy, 
and  the  children  of  Pegg^  born  during  the  continuance  of  the  par- 
ticular estate  belonged  to  the  remaindermen  precisely  as  the  mother 
did.  Murphy  v.  Riggs,  i  Marsh.  532.  And  although  one  of  the 
children  was  not  born  until  after  the  passage  of  the  act  of  1846  for 
the  better  protection  of  the  rights  of  married  women,  yet  the  title 
to  Peggy  having  vested  at  the  death  of  the  testator,  the  title  to  her 
subsequent  offsprings  vested  at  the  same  time.  And  if  this  were  not 
so,  the  interest  of  Mrs.  Young  in  Peggy  vested  in  Mrs.  Young's 
husband  upon  her  marriage  in  1845,  and  the  interest  in  the  after- 
born  children,  which,  but  for  the  marriage  would  have  vested  in  Mrs. 
Young,  vested  by  operation  of  law  in  her  husband.  In  any  view  of 
the  case,  then,  the  two  children  of  Peggy  were  the  property  of  Mr. 
Young  from  the  time  of  the  division  of  the  testator's  estate  in  1851, 
unless  counsel  are  right  in  construing  the  Act  of  1846,  as  relating  to 
the  time  of  acquiring  possession  of  slaves,  and  not  to  the  time  of  the 
vesting  of  the  title. 

That  statute  provided  that  "the  slave  or  slaves  of  a  married  woman 
shall  hereafter,  within  this  commonwealth,  be  held  and  taken  to  be 
real  estate,  in  so  far  that  no  slave  or  slaves,  or  the  increase  thereof, 
which  any  such  married  woman  may  have  at  the  time  of  her  mar- 
riage, or  which  shall  come,  descend,  or  be  devised  or  given  to  her 
during  her  coverture,  shall  be  liable  for  the  debts  of  her  husband." 
The  slaves  both  came  to  the  possession  of  Mrs.  Young  and  her  hus- 
band after  the  passage  of  the  act,  and  after  the  marriage,  and  it  is 
contended  that  this  was  a  coming  to  her  within  the  meaning  of  the 
act  so  as  to  bring  them  within  its  operation.  It  is  obvious  that  the 
phrase  "which  shall  come,"  etc.,  did  not  have  reference  to  either  pos- 
session or  the  right  of  possession,  but  to  the  vesting  of  title. 

But  if  the  language  of  the  act  was  such  as  to  admit  of  the  construe- 


734  Kentucky  Opinions. 

tion  contended  for,  that  construction  would  not  be  adopted  if  the 
language  would  admit  of  any  other.  Under  the  law  as  it  stood  at 
the  time  of  Mrs.  Young's  marriage,  all  her  interest  in  the  slaves  of 
her  father,  and  their  increase,  vested  eo  instanti  in  her  husband,  and 
as  is  well  suggested  by  counsel  for  the  appellees,  could  not  be  di- 
vested by  legislative  action.  We  must,  therefore,  hold  that  the  slaves 
were  the  property  of  the  husband,  and  so  far  as  the  claim  of  Mrs. 
Young  depends  upon  the  assumption  that  the  land  was  paid  for  with 
her  money,  it  must  fail.    Jackson  v.  Sublett,  lo  B.  Mon.  467. 

Counsel  next  insist,  and  upon  that  proposition  they  mainly  rely, 
that  the  writing  of  January  26,  i860,  and  the  facts  and  circum- 
stances disclosed  in  the  record,  amount  to  a  waiver  of  the  husband's 
marital  rights,  and  constitute  a  valid  post-nuptial  agreement.  A  hus- 
band may  certainly  waive  his  marital  right  to  money  or  property 
coming  to  him  through  his  wife  and  permit  her  to  retain  it  as  her 
own ;  and  if  he  does  so  she  may  hold  it  against  him  and  volunteers 
under  him.    Bryant's  Admr,  v.  Bryant,  3  Bush  155. 

But  where  the  wife,  to  relieve  the  pecuniary  embarrassment  of  her 
husband,  united  with  him  in  the  sale  of  her  land  and  slaves,  and  in 
consideration  that  she  did  so  he  executed  to  her  his  notes  for  the 
amount  realized  from  the  sales,  it  was  held  that,  while  the  notes  were 
enforcible  in  equity  against  the  administrator  of  the  husband,  they 
created  only  an  equity  which  could  not  be  enforced  to  the  prejudice 
of  creditors  of  the  husband  having  legal  demands,  and  she  was  post- 
poned until  the  other  creditors  were  paid.  Mariman  v,  Mariman,  4 
Met.  84. 

If,  therefore,  it  be  conceded  that  Mr.  Young  waived  his  right  to 
the  slaves,  and  to  the  money  arising  from  their  sale,  and  consented 
that  it  might  be  invested  in  land  to  be  conveyed  to  her,  it  is  clear  on 
the  authority  of  Mariman  v.  Mariman,  that  until  that  agreement  way 
executed  it  was  invalid  as  to  the  husband's  creditors,  even  if  the 
agreement  of  the  husband  had  been  supported  by  a  sufficient  consid- 
eration. 

The  agreement,  if  one  was  made,  that  the  land  should  be  con- 
veyed to  Mrs.  Young  was  never  executed,  and  was  without  any  val- 
uable consideration  whatever.  Upon  what  principle,  then,  can  it  be 
enforced  by  her  to  the  prejudice  of  the  appellees  ?  Her  counsel  argue 
that  she  has  an  equity  dating  back  to  the  time  of  purchasing  the  land, 
and  that  the  appellees  have  only  an  equity  dating  from  the  time  of 
making  their  levies,  and  that  as  her  equity  is  the  elder,  it  must  pre- 
vail; and   they   cite  Lowe  &  Whitney  v.  Blinco,   10  Bush  331; 


Vernetta  p.  Young,  et  al.,  v.  J.  J.  Nesbitt,  et  al.       735 

Morton  v.  Robards,  4  Dana  258;  Halley  v,  Oldham,  5  B.  Mon.  233; 
and  Righter  v,  Forrester,  1  Bush  278,  as  sustaining  that  position. 

Those  cases  all  involved  the  question  whether  an  equity  in  land 
levied  on  under  execution  would  prevail  over  the  title  acquired  by  a 
purchaser  under  the  exectuion  who  had  notice  of  the  prior  equity, 
and  it  was  held  in  such  that  it  would.  But  in  all  those  cases  the 
prior  equity  was  supported  by  a  valid  legal  consideration,  while  the 
equity  asserted  by  Mrs.  Young  is  without  such  consideration ;  and  in 
view  of  what  was  decided  in  Mrs.  Mariman's  case,  it  may  well  be 
doubted  whether,  even  if  there  had  been  a  valuable  consideration  for 
the  alleged  waiver  of  Mr.  Young's  marital  rights,  the  equity  thereby 
created  in  Mrs.  Young's  favor  could  be  enforced  against  his  cred- 
itors. 

In  consideration  that  Mrs.  Mariman  would  sell  her  land  and  slaves, 
her  husband  expressly  agreed  to  repay  to  her  the  amount  that  should 
be  realized  from  such  sale,  and  pursuant  to  that  agreement  executed 
to  her  his  notes  for  the  amount;  but  the  court  said  her  petition 
showed  that  she  placed  the  proceeds  of  her  property  in  his  hands  to 
relieve  him  from  pecuniary  embarrassment,  expecting  to  be  paid  by 
him  when  his  circumstances  should  become  better.  "The  natural 
tendency  of  her  conduct  was  to  give  him  credit  with  others  who  knew 
nothing  of  the  arrangement  between  him  and  her."  The  court  fur- 
ther said :  "As  she  has  come  into  equity  for  relief,  sound  policy  seems 
to  forbid  that  her  claim,  which  has  no  legal  validity,  shall  be  placed 
upon  an  equal  footing  with  the  legal  demands  of  creditors.  A  differ- 
ent doctrine  might  open  the  door  to  many  frauds."  And  her  claim 
was  postponed  to  all  other  creditors. 

The  foregoing  remarks  of  the  court  in  that  case  apply  with  pe- 
culiar force  to  the  facts  in  this  case.  Mrs.  Young  became  acquainted 
with  the  fact  that  the  deed  had  been  made  to  her  husband  within  a 
few  days  after  its  date,  but  failed  to  take  any  steps  to  have  it  cor- 
rected. The  deed  was  a  matter  of  public  record  and  all  persons  ig- 
norant of  the  facts  as  she  claims  them  to  have  been,  had  a  right  to 
regard  the  land  as  belonging  to  her  husband.  "The  natural  tendency 
of  her  conduct  was  to  give  him  credit  with  others  who  knew  nothing 
of  the  agreement  between  him  and  her."  And  to  hold  that  she  may 
now  enforce  that  secret  voluntary  agreement  against  these  appellees 
who  were  ignorant  of  the  agreement  when  they  trusted  him,  and 
who  may,  and  probably  did,  trust  him  on  the  faith  of  the  land  in 
contest,  not  only  might  but  would  open  the  door  to  many  frauds. 

The  evidence  shows  that  at  the  time  of  the  execution  of  the  writing 


736  Kentucky  Opinions. 

of  January  26,  i860,  Mr.  Young  was  free  from  debt,  and  was  the 
owner  of  an  estate,  besides  that  devised  from  his  wife's  father,  worth 
about  $8,000 ;  and  counsel  seek  to  sustain  Mrs.  Young's  claim  on  the 
ground  that  the  writing  and  other  evidence  in  the  record  show  a 
valid  post-nuptial  settlement,  and  that  ^Ir.  Young  holds  the  title  in 
trust  for  her,  and  that  trust  ought  now  to  be  enforced. 

There  is  no  doubt  but  his  circumstances  were  such  that  he  might 
have  made  a  valid  post-nuptial  settlement  upon  her,  but  he  did  not 
do  so.  The  writing  upon  its  face  evidences  a  trust,  but  is  merely  ex- 
ecutory, and  as  we  have  already  remarked  was  executed  without  any 
valuable  consideration,  and  cannot  be  enforced. 

The  well  settled  rule  upon  that  subject  seems  to  be  that  "Where 
there  is  a  valuable  consideration  the  court  will  enforce  the  trust, 
though  it  is  not  perfectly  created,  and  though  the  instrument  does 
not  pass  the  title  to  the  property,  if  from  the  documents  the  court 
can  clearly  perceive  the  terms  and  conditions  of  the  trust,  and  the 
parties  to  be  benefited.  In  such  cases  effect  is  given  to  the  considera- 
tion to  carry  out  the  intention  of  the  parties,  though  informally  ex- 
pressed. But  if  from  an  imperfect  declaration  the  trust  is  not  fully 
created,  and  the  beneficiaries  are  compelled  to  come  into  court  to 
have  it  perfected,  the  court  will  refuse  relief  where  the  plaintiff 
claims  as  a  volunteer."  Perry  on  Trusts,  Sec.  95 ;  Tanner,  et  ai,  z\ 
Skinner,  ct  al.,  11  Bush  120. 

In  order  to  sustain  this  position,  that  there  was  a  valid  post-nuptial 
settlement,  counsel  cite  Dnhme  &  Co,  v.  Young,  et  al,  3  Bush  343; 
Hindc's  Lessee  v,  Longworth,  11  Wheaton  198;  Babcock  v.  Eckler, 
et  al.,  24  N.  Y.  623 ;  and  Tozunsend  v,  Maynard,  45  Pa.  St.  198. 

The  settlements  involved  in  those  cases  were  executed,  and  were 
called  in  question  by  the  husband's  creditors,  who,  finding  the  wife 
invested  with  title,  were  forced  to  go  into  equity  for  relief ;  while  in 
this  case  the  creditors  of  the  husband  were  pursuing  their  legal  rem- 
edies against  him,  in  whom  they  found  the  legal  title,  and  the  wife 
seeks  to  interpose  to  perfect  an  unexecuted  settlement  and  then  to 
have  it  enforced,  and  therebv  to  overreach  and  defeat  creditors  who 
are  not  under  the  necessity  of  coming  into  equity  at  all. 

It  is  only  when  creditors  of  the  husband  are  compelled  to  come 
into  equity  for  relief  that  mere  equities  of  the  wife  to  property  held 
in  his  name  can  be  successfully  set  up  against  them.  The  cases  of 
Miller  and  Wife  v.  Edwards,  et  al.,  7  Bush  394;  Ward  v.  Crotty,  et 
al,  4  Met.  59;  and  Forepaugh,  Bishop,  et  al.,  v.  Appold  &  Sons,  17 
B.  Mon.  625,  were  all  cases  in  which  creditors  invoked  the  chancel- 


Vernetta  p.  Young,  et  al.,  v.  J.  J.  Nesbitt,  et  al.       737 

lor's  aid  to  subject  to  the  payment  of  their  debts  that  which  in  equity 
belonged  to  the  wife.  If  the  title  to  the  land  in  contest  was  so  situ- 
ated that  creditors  were  forced  to  seek  aid  in  equity  to  subject  it,  the 
rules  applicable  to  that  state  of  case  would  be  wholly  different  from 
those  applicable  to  the  facts  as  presented  in  this  case.  Then  the 
court  would  withhold  its  aid  until  an  equitable  settlement  was  made 
on  Mrs.  Young.    Sims  v,  Spalding,  2  Duv.  121. 

Counsel  also  cite  and  rely  upon  IVhitefiead  v.  Whitehead,  et  aL, 
64  N.  Car.  538.  The  land  in  contest  in  that  case  was  paid  for  with 
money  which  was  the  separate  estate  of  the  wife,  and  by  mistake 
was  conveyed  to  the  husband,  whose  creditors  levied  upon  and  sold 
it,  and  the  purchasers  were  held  to  be  trustees  for  the  wife,  whether 
th^y  had  notice  of  her  equity  or  not.  Without  approving  or  disap- 
proving the  decision  in  that  case,  we  may  remark  that  it  is  wholly 
unlike  this.  There  the  land  was  paid  for  with  money  which  was 
the  separate  estate  of  the  wife ;  here  the  land  was  paid  for  with  the 
money  of  the  husband. 

We  are  for  these  reasons  of  the  opinion  that  the  appellants  failed 
to  manifest  an  enforcible  right  in  Mrs.  Young,  and  that  her  petition 
should  have  been  dismissed.  The  court,  however,  without  any  ap- 
propriate pleading  to  that  end,  adjudged  the  whole  land  to  be  sold, 
first  to  pay  to  Mr.  Young  $1,000  in  lieu  of  a  homestead,  and  then  to 
pay  the  several  judgments  in  favor  of  the  appellees,  and  retained  the 
case  in  order  to  dispose  of  any  surplus  that  might  remain. 

The  appellees  sought  no  judgment  for  a  sale  of  the  land,  unless 
the  court  should  adjudge  it  to  Mrs.  Young,  in  which  event  they 
prayed  for  a  sale  of  so  much  as  would  equal  the  value  of  the  perma- 
nent and  lasting  improvements  put  upon  it  by  Sinnett  Young ;  and  if 
they  had  done  so,  there  was  no  authority  for  a  judgment  to  sell  the 
whole  unless  it  should  be  necessary  to  do  so  to  raise  the  amount  due, 
and  $1,000  for  the  homestead ;  and  even  then  it  was  error  to  sell  the 
homestead,  although  the  buildings  and  the  ground  occupied  by 
them  were  worth  more  than  $1,000,  unless  it  was  necessary  to  sell  it 
in  order  to  satisfy  the  judgments.  Wc  are,  for  these  reasons,  of  the 
opinion  that  the  appellants  failed  to  manifest  in  Mrs.  Young  an  en- 
forcible  right  to  the  land,  and  that  her  petition  was  properly  dis- 
missed. 

But  the  court  erred  in  adjudging  the  land  to  be  sold  to  satisfy  the 
appellee's  judgments.  They  did  not  ask  for  a  judgment  to  sell  the 
land  unless  the  court  should  adjudge  the  land  to  Mrs.  Young,  and 
then  they  only  asked  for  a  sale  of  so  much  as  would  pay  the  value  of 

47 


738  Kentucky  Opinions. 

the  lasting  and  valuable  improvements  put  upon  it  by  Sinnett  Young. 
As  the  land  was  adjudged  not  to  be  the  property  of  Mrs.  Young, 
both  the  petition  and  counterclaim  should  have  been  dismissed. 

The  judgment  for  a  sale  of  the  land  is  reversed,  and  the  cause 
is  remanded  with  directions  to  set  that  judgment  aside  and  to  dis- 
miss the  appellees'  counterclaim. 

H,  L.  Stone,  Holt  &  Brooks,  for  appellants, 
A.  Dtnall,  V,  B.  Young,  /.  S.  Hunt,  Nesbitt  &  Gudgell,  for  ap- 
pellees. 


Elizabeth  K.  Graham  v.  Samuel  R.  Graham. 

Divorce — ^Jurisdiction* 

The  court  of  appeals  has  no  jurisdiction  of  an  appeal  from  a  judg- 
ment granting  a  divorce,  but  it  has  jurisdiction  of  an  appeal  from  so 
much  of  the  judgment  as  dismissed  appellant's  petition  and  denied 
her  petition  for  alimony. 

Alimony. 

The  wife  is  not  entitled  to  alimony  when  a  divorce  has  been  granted 
to  her  husband  and  denied  to  her. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

September  9,  1876. 

Opinion  by  Judge  Gofer  : 

The  appellee  brought  this  suit  in  the  Louisville  chancery  court 
against  the  appellant  to  obtain  a  divorce  a  vinculo  matrimonii,  upon 
the  ground  that  she  had  voluntarily  abandoned  him  for  a  period  of 
more  than  a  year.  She  denied  the  alleged  abandonment,  and,  making 
her  answer  a  counterclaim,  she  alleged  that  at  the  time  of  their  mar- 
riage and  afterwards,  he  was  afflicted  with  a  secret  loathsome  disease 
which  he  had  communicated  to  her,  and  upon  that  ground  prayed 
for  a  divorce  a  mensa  et  thoro,  and  for  alimony. 

The  chancellor  adjudged  in  favor  of  the  appellee,  and  granted  him 
a  divorce  as  prayed  for,  dismissed  the  appellant's  counterclaim,  and 
denied  her  prayer  for  alimony.  From  that  judgment  this  appeal  is 
prosecuted. 

We  have  no  jurisdiction  of  an  appeal  from  a  judgment  granting  a 
divorce,  and  it  is  not  only  unnecessary  but  would  be  improper  to  ex- 
press an  opinion  on  the  facts  upon  which  the  divorce  was  granted. 


Elizabeth  K.  Graham  v.  Samuel  R.  Graham.  739 

But  of  the  appeal  from  so  much  of  the  judgment  as  dismissed  ap- 
pellant's petition  and  denied  her  prayer  for  alimony  we  have  juris- 
diction, and  this  is  as  much  of  the  judgment  as  we  are  asked  to  re- 
vise. 

It  is  conceded  by  the  appellant's  counsel  that  the  charge  in  her 
counterclaim  that  the  appellee  had  been  afflicted  with  a  loathsome 
disorder,  is  wholly  unsustained  by  evidence ;  and  it  follows  that  the 
court  did  not  err  in  dismissing  the  counterclaim  so  far  as  it  sought  a 
divorce.  It  has  been  judicially  and  irreversibly  ascertained  that  the 
appellant  abandoned  her  husband  without  fault  on  his  part,  and  she 
has  failed  to  show  a  right  on  her  part  to  a  divorce. 

This  state  of  the  record  bars  her  right  to  alimony.  The  statute 
provides  that  "if  the  wife  have  not  sufficient  estate  of  her  own,  she 
may  on  a  divorce  obtained  by  her,  have  such  allowance  out  of  that  of 
her  husband  as  shall  be  deemed  equitable."  Sec.  6,  Art.  3,  Chap.  52, 
Gen.  Stat.  But  there  is  no  statute  or  rule  of  equity  jurisprudence,  of 
which  we  have  any  knowledge,  which  authorizes  an  allowance  of 
alimony  to  the  wife,  when  a  divorce  has  been  granted  to  her  husband 
and  denied  to  her. 

Except  as  otherwise  provided  by  statute,  the  effect  of  a  divorce 
from  the  bonds  of  matrimony  upon  the  property  rights  of  the  parties 
is  substantially  that  of  death,  or  annihilation.  Schouler  Domestic 
Relations,  299.  The  parties  stand  in  the  same  legal  relation  to  each 
other  that  they  would  have  occupied  if  the  marital  relation  had  never 
existed  between  them. 

The  appellee  asked  for  the  custody  of  an  only  child  of  the  mar- 
riage, now  about  six  years  old,  which  was  then  and  is  now  in  the  cus- 
tody of  the  appellant;  but  the  chancellor,  having  the  interest  and 
welfare  of  the  child  principally  in  view,  and  deeming  it  too  young  to 
be  deprived  of  a  mother's  care,  refused  to  make  an  order  respecting 
its  future  custody,  simply  leaving  it  with  the  appellant,  and  retained 
the  case  for  future  orders  on  that  subject.  The  statute  provides  that 
pending  an  application  for  a  divorce,  or  a  final  judgment,  the  court 
may  make  orders  for  the  care,  custody  and  maintenance  of  the  minor 
children  of  the  parties,  and  may  at  any  time  afterwards,  upon  the 
petition  of  either  parent,  revise  and  alter  the  same.  Sec.  7,  Art.  3, 
Chap.  52,  Gen.  Stat. 

No  special  application  was  made  for  an  allowance  for  the  main- 
tenance of  the  child,  and  the  mere  omission  of  the  court  to  make  it 
upon  the  general  prayer  in  the  counterclaim  that  the  appdlee  should 
be  adjudged  to  pay  such  sum  as  would  be  sufficient  for  its  support. 


740  Kentucky  Opinions. 

is  not  error.  The  court  has  full  power  to  make  such  orders  for  the 
custody  and  maintenance  of  the  child  as  shall,  from  time  to  time,  ap- 
pear to  be  proper. 

As  we  have  already  said,  from  the  time  of  granting  the  appellee  a 
divorce,  he  and  the  appellant  have  occupied  the  same  legal  relation  to 
each  other  as  if  they  had  never  been  husband  and  wife.  No  appeal 
lies  from  the  judgment  granting  the  divorce,  and  even  a  reversal  of 
the  judgment  refusing  to  grant  to  the  appellant  a  divorce  could  not 
bring  them  again  into  conjugal  relations.  We  are,  therefore,  of  the 
opinion  that  no  allowance  can  be  made  to  the  appellant  for  counsel 
fees  or  costs,  in  this  court,  and  that  upon  an  affirmance  the  appellee  is 
entitled  to  a  judgment  for  his  costs. 

Judgment  affirmed. 

M.  Mundy,  for  appellant.    Mix  &  Boothe,  for  appellee. 


M.  P.  HiATT  V.  Ben  F.  Field. 

Liability  of  Assignor  of  Note — ^Waiver  of  Diligence. 

Where,  notwithstanding  no  sufficient  diligence  is  shown  to  make  an 
assignor  liable,  the  assignor  at  the  time  of  making  the  assignment 
made  an  agreement  with  the  holder  of  the  note  that  he  would  remain 
bound,  he  is  not  released. 

APPEAL  FROM  JEFFERSON  COURT  OF  CX)MMON  PLEAS. 

September  14,  1876. 

Opinion  by  Judge  Cofer: 

The  appellee  did  not  use  such  diligence  as  would  render  the  ap- 
pellant liable  on  the  contract  of  assignment.  But  the  writing  ex- 
hibited with  the  petition  evidences  an  agreement  on  the  part  of  the 
appellant  to  remain  bound,  although  legal  diligence  might  not  be 
used. 

The  evidence  tends  to  prove  that  that  writing  was  executed  as  a 
part  of  the  same  transaction  in  which  the  note  was  assigned ;  and  as 
it  recites  that  it  was  executed  on  the  same  day,  we  should  be  bound, 
if  necessary  to  support  the  judgment,  to  presume  that  the  court 
found  as  a  fact  that  they  were  executed  at  the  same  time.  But  that 
is  not  necessary,  for  no  matter  whether  executed  at  that  time  or  sub- 
sequently, so  it  was  executed  before  the  appellant  was  discharged 
from  liability,  it  is  valid,  and  that,  too,  whether  there  was  any  con- 
sideration for  its  execution  or  not. 


J.  W.  Grimes  v.  Commonwealth.  741 

The  appellant  had  a  right  to  waive  due  diligence  in  prosecuting  the 
obligor,  and  to  consent  to  remain  bound ;  and  having  done  so  while 
he  was  yet  liable,  he  cannot  now  avail  himself  of  laches  to  which  he 
consented  in  order  to  escape  liability. 

The  writing  was  not  skilfully  worded,  but  there  can  be  no  doubt 
but  that  it  was  intended  as  a  waiver  of  the  right.  The  appellant 
would  otherwise  have  had  to  be  discharged  if  the  obligor  was  not 
prosecuted  with  legal  diligence.  It  is  true  the  language  is,  that  he 
was  to  remain  liable  if  the  appellee  did  not  sue  to  the  first  court,  and 
that  there  is  no  stipulation  that  he  would  remain  bound  if  suit  was 
brought  and  execution  was  not  issued  in  due  time.  But  there  is  no 
escaping  the  conclusion  that  the  object  was  to  waive  legal  diligence, 
and,  unless  such  was  the  object,  the  writing  was  meaningless. 

The  judgment  is  affirmed, 

John  B.  Cochran,  for  appellent.    D.  M.  Rodman,  for  appellee. 


J.  W.  Grimes  v.  Commonwealth. 

Criminal  Law — Sureties  on  Bond. 

When  a  defendant,  after  his  cause  has  been  submitted  to  the  jury, 
was,  by  order  of  the  court,  remanded  to  the  custody  of  the  Jailer,  the 
sureties  are  released  and  cannot  bind  themselves  to  further  stand  on 
the  bond. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

September  15,  1876. 

Opinion  by  Judge  Pryor  : 

The  accused,  after  the  cause  had  been  submitted  to  the  jury,  was 
by  an  order  of  the  court  remanded  to  the  custody  of  the  jailor.  His 
sureties  had  consented  that  he  might  stand  on  his  bond  during  the 
progress  of  the  trial,  but  the  court  very  properly  placed  him  in  jail, 
or  in  the  custody  of  the  jailor,  after  the  jury  had  taken  charge  of  the 
case.  When  placed  in  jail  or  in  the  jailor's  custody  by  the  order  of 
the  court,  the  sureties  had  no  longer  any  control  over  the  accused, 
and  their  liability  as  such  terminated.  They  had  fulfilled  their  ob- 
ligation when  the  prisoner  was  placed  in  jail  or  in  custody  of  the 
jailor,  all  power  to  control  their  principal  in  any  way  having  ceased. 
Commonwealth  v.  Coleman,  et  al.,  2  Met.  382 ;  Askins  v.  Common- 
wealth, I  Duv.  275. 

If  when  placed  in  custody  the  sureties  were  released,  the  stipula- 


742  Kentucky  Opinions. 

tions  of  the  bond  or  its  covenants  could  not  be  revived  without  their 
consent ;  and  it  may  be  questioned  whether  a  consent  in  open  court 
by  the  sureties  (after  the  bond  had  been  complied  with  by  the  delivery 
of  the  prisoner  and  his  being  taken  into  custody)  to  remain  bound 
on  the  bond,  would  have  been  obligatory.  The  safer  course  would  be 
the  execution  of  a  new  bond.  The  judgment  is  rezrrsed  and  the 
cause  remanded  for  further  proceedings  consistent  with  this  opinion. 

Huston  &  Mulligan,  for  appellant.. 

Breckenridge  &  Shelby,  Frank  Waters,  for  appellee. 


Caroline  J.  Bacon  v.  Richard  Rudd,  Adm'r. 

Usury — Recovery  Back  of  Usurious  Interest — Statute  of  1876. 

One  paying  usurious  interest  is  entitled  to  have  it  credited  on  the 
principal,  but  cannot  recover  it  back  until  all  the  principal  is  paid. 

Statute  of  1876. 

Tbe  statute  of  1876  to  vary  the  rule  as  to  contracting  to  pay  interest 
is  not  retrospective  in  its  operation, 

APPEAL  FROM  L.OUISVILI.E  CHANCERY  COURT. 

September  15,  1876. 

Opinion  by  Judge  Pryor: 

The  execution  of  the  memorandum  dated  in  October,  1871,  by 
which  the  obligor  in  the  note  agreed  to  pay  10  per  cent,  in  considera- 
tion of  forbearance,  etc.,  created  no  such  obligation  on  the  part  of  the 
appellant  as  precluded  her  from  instituting  an  action  at  any  time 
upon  the  note  and  prosecuting  it  to  judgment.  She  had  agreed  not 
to  enforce  the  lien  created  by  the  mortgage  upon  certain  property 
for  a  specified  time,  in  order  that  the  debtor,  Dr.  Rudd,  might  lease 
it,  but  the  note  was  then  due,  and  no  demand  or  refusal  was  neces- 
sary to  enable  the  appellant  to  coerce  payment  by  suit.  Such  an 
action  could  have  been  instituted  at  any  time,  and  the  memorandum 
referred  to,  if  pleaded,  could  not  have  prevented  a  judgment. 

It  was  proper  for  the  commissioner  to  deduct  the  annual  interest 
from  the  note,  and  the  mode  of  calculation,  in  order  to  ascertain  the 
amount  due,  must  be  approved.  The  prior  and  legal  interest  has 
been  computed  up  to  the  time  of  payment,  and  the  payment  de- 
ducted ;  and  if  any  error  has  been  committed  by  this  method  of  ar- 
riving at  a  correct  result,  it  is  against  the  appellee.    Kay  v.  Fowler, 


Caroline  J.  Bacon  v,  Richard  Rudd,  Adm'r.  743 

et  al.,  7  T.  B.  Mon.  594.  In  1868  the  appellant  loaned  to  the  decedent 
ten  thousand  dollars,  payable  in  three  years,  at  10  per  cent,  interest. 
The  interest,  amounting  to  three  thousand  dollars,  was  secured  by 
notes  of  five  hundred  dollars  each,  payable  in  instalments  and  exe- 
cuted at  the  same  time.  It  must  then  be  regarded  as  an  entire  trans- 
action, which  the  decedent  undertook  to  pay  10  per  cent,  interest  on 
for  three  years.  There  never  was  any  renewal  of  the  original  note, 
and  the  only  change  made  in  the  contract  was  the  memorandum  of 
October  13,  1871,  on  which  the  obligor  still  agreed  to  pay  the  10 
per  cent,  interest ;  and  if  there  had  been  a  renewal  for  the  same  debt 
and  by  the  same  parties,  the  rights  of  the  appellant  would  have  been 
the  same. 

It  must  be  admitted  that  the  contract  to  pay  this  excess  interest 
made  in  1868  was  illegal,  and  that  the  debtor  could  have  recovered 
the  usury  at  any  time  after  the  payment  of  the  principal  debt  unless 
barred  by  the  statute.  He  could  not  have  recovered  any  of  it  back 
until  the  principal  was  paid,  as  the  law  applied  such  payments  in 
discharge  of  the  principal  debt.  The  agreement  to  pay  the  10  per 
cent,  interest  after  the  passage  of  the  interest  law  of  1871  in  no 
manner  deprived  the  obligor  of  his  right  to  plead  usury ;  nor  did  it 
legalize  or  affect  usurious  contracts  made  prior  to  its  passage.  The 
earlier  decisions  in  this  state,  several  of  which  have  been  quoted,  con- 
duce to  sustain  the  position  announced  by  appellant's  counsel  in  this 
case. 

We  find,  however,  that  these  decisions  have  not  been  followed, 
and,  in  effect,  have  been  overruled  since  the  decision  in  the  case  of 
Crutcher  v.  Trabue  &  Tunstall,  5  Dana  80.  In  that  case  it  was  held 
that  no  recovery  could  be  had  of  the  usury  by  the  borrower  until  the 
principal  debt  was  paid,  and  that  the  usury  should  be  credited  on 
the  debt  as  of  th<i  date  when  it  was  paid.  See  Wood  v.  Gray's  Exr., 
5  B.  Mon.  92.  In  the  case  of  Booker  v.  Gregory,  2  B.  Mon.  439, 
Booker  loaned  to  Gregory  a  large  sum  of  money  at  10  per  cent. ;  a 
separate  note  for  $303  was  executed  for  the  usury.  In  a  controversy 
in  regard  to  the  usury  this  court  said  that  the  payment  of  the  $303 
was  a  part  of  the  res  gestae ;  it  was  paid  on  account  of  the  borrowing 
and  lending.  The  mere  fact  of  calling  it  the  usury  which  had  then 
accrued,  did  not  have  the  effect  to  separate  the  transaction  or  to  dis- 
solve the  connection  and  relation  which  it  bore  to  it.  The  giving  the 
small  note  was  as  much  a  part  of  the  transaction  as  giving  the  large 
one.  The  effort  of  the  lender  to  separate  the  chaff  from  the  wheat 
is  merely  ideal. 


744  Kentucky  Opinions. 

The  true  question  is,  "How  much  of  the  loan  and  legal  interest  has 
been  reimbursed  and  how  much  remains  unpaid."  It  is  now  too  well 
settled  in  this  state  to  admit  of  controversy  that  all  moneys  paid  by 
the  debtor  or  borrower  to  the  lender  on  the  debt,  whether  called 
usury  or  not,  will  be  treated  as  a  payment  of  so  much  of  the  debt  and 
the  kgal  interest  due ;  and  no  recovery  of  the  usury  can  be  had  until 
the  debt  and  legal  interest  is  paid.  There  is  nothing  in  this  case  to 
vary  the  rule  unless  the  interest  law  of  1876  is  retrospective  in  its 
operation,  and  invalidates  all  usurious  transactions  theretofore  made. 
Such  could  not  have  been  the  intention  of  the  legislature,  nor  is  such 
a  construction  authorized  by  the  language  of  the  act.  The  language 
of  the  enactment  is  that  it  shall  be  lawful  to  contract,  not  that  all 
contracts  now  in  existence  and  hereafter  to  be  made  shall  be  deemed 
lawful.  Courts  are  not  disposed  to  construe  such  law  as  retro- 
spective, and  disturb  the  rights  of  parties  fixed  and  understood  by 
the  law  in  existence  at  the  time  they  were  entered  into,  unless  there 
is  something  in  the  statute  indicating  at  least  that  such  was  the 
legislative  intent. 

If  the  act  in  question  is  not  retroactive  the  contract  must  be  regu- 
lated by  the  law  in  existence  at  the  time  the  contract  was  made. 
There  was  no  penalty  annexed  to  the  usury  law  when  this  contract 
was  entered  into.  The  lender  was  entitled  to  his  money  and  legal 
interest  with  the  right  on  the  part  of  the  borrower  to  recoup  the 
money,  if  any,  paid.  We  are  not  able  to  perceive  the  application  of 
the  doctrine  in  reference  to  crimes  and  punishments  under  our  penal 
laws,  to  the  case  at  bar.  The  cases  from  the  Indiana  Supreme  Court 
have  heretofore  been  considered  by  this  court,  and  although  the  stat- 
ute, if  introduced,  differs  somewhat  from  the  Kentucky  statute,  even 
with  the  high  respect  we  have  for  the  learning  and  ability  of  that 
court,  still  we  could  not  give  a  similar  construction  to  such  a  statute. 

The  rights  of  the  parties  are  not  affected  by  the  change  made  in 
the  interest  laws,  as  to  transactions  originating  prior  to  the  passage 
of  that  act ;  nor  is  th^  payment  of  money  upon  such  contracts  after 
its  passage  an  obstacle  to  its  recovery  back  by  the  borrower.  The 
written  obligation  to  pay  10  per  cent,  on  the  price  executed  after 
the  interest  law  was  enacted  can  be  enforced.  The  court  below 
having  adopted  this  view  of  the  questions  presented,  the  judgment 
must  be  affirmed. 

John  Roberts,  George  B.  Easton,  for  appellant. 
Barr,  Goodloe  &  Humphrey,  for  appellee. 


J.  W.  Croan  v.  J.  C.  Crenshaw.  745 

J.  W.  Croan  v.  J.  C.  Crenshaw. 

Slander — Words  Spoken  in  Jest. 

An  inBtruction  in  a  slander  case  is  correct  which  said  to  the  Jury 
that  if  the  words  were  spoken  without  malice  and  in  jest  and  were  so 
understood  by  those  who  heard  them,  the  law  was  for  the  defendant. 

Malice. 

Malice  is  an  indispensable  ingredient  in  slander,  without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage. 

Malice. 

Where  words  spoken  are  in  themselves  actionable  malice  may  be 
presumed  from  their  falsity,  but  this  presumption  may  be  rebutted  by 
evidence. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

September  15,  1876. 

Opinion  by  Judge  Cofer  : 

• 

The  plaintiff  (nov^  appellant)  alleged  that  he  and  the  defendant 
(now  appellee),  were  rival  candidates  for  the  office  of  county  attor- 
ney of  Bullitt  county ;  that  the  defendant,  on  several  occasions, 
charged  in  his  public  speeches  that  the  plaintiff  had  turned  against 
his  clients,  and  instead  of  defending  them,  as  was  his  duty,  had  prose- 
cuted them  and  sent  one  to  the  penitentiary,  and  came  near  sending 
another. 

The  defendant  admitted  that  he  used  the  words  charged  in  the 
petition,  but  alleged  that  he  did  so  in  jest  and  without  malice ;  and  he 
alleged  that  those  who  heard  him  understood  his  remarks  as  made 
in  jest,  and  not  as  intending  to  charge  the  plaintiff  with  want  of 
loyalty  to  his  clients.  As  to  whether  the  charges  were  made  in  jest 
or  in  malice  the  evidence  was  conflicting.  The  court  instructed  the 
jury,  in  effect,  that  if  the  words  were  spoken  without  malice  and  in 
jest,  and  were  so  understood  by  those  who  heard  them,  the  law  was 
for  the  defendant. 

This,  we  think,  correctly  presented  the  law  of  the  case  to  the  jury. 
It  required  the  jury,  before  rendering  a  verdict  for  the  defendant,  to 
find  from  the  evidence  (i)  that  the  words  were  spoken  in  jest,  and 
(2)  that  they  were  uttered  without  malice.  This  the  jury  have  done 
by  their  verdict. 

Malice  is  an  indispensable  ingredient  in  slander.  Without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage,  of 
which  there  is  none  whatever  in  this  record.    Where  words  are  in 


744  Kentucky  Opinions. 

The  true  question  is,  **How  much  of  the  loan  and  legal  interest  has 
been  reimbursed  and  how  much  remains  unpaid."  It  is  now  too  well 
settled  in  this  state  to  admit  of  controversy  that  all  moneys  paid  by 
the  debtor  or  borrower  to  the  lender  on  the  debt,  whether  called 
usury  or  not,  will  be  treated  as  a  payment  of  so  much  of  the  debt  and 
the  legal  interest  due ;  and  no  recovery  of  the  usury  can  be  had  until 
the  debt  and  legal  interest  is  paid.  There  is  nothing  in  this  case  to 
vary  the  rule  unless  the  interest  law  of  1876  is  retrospective  in  its 
operation,  and  invalidates  all  usurious  transactions  theretofore  made. 
Such  could  not  have  been  the  intention  of  the  legislature,  nor  is  such 
a  construction  authorized  by  the  language  of  the  act.  The  language 
of  the  enactment  is  that  it  shall  be  lawful  to  contract,  not  that  all 
contracts  now  in  existence  and  hereafter  to  be  made  shall  be  deemed 
lawful.  Courts  are  not  disposed  to  construe  such  law  as  retro- 
spective, and  disturb  the  rights  of  parties  fixed  and  understood  by 
the  law  in  existence  at  the  time  they  were  entered  into,  unless  there 
is  something  in  the  statute  indicating  at  least  that  such  was  the 
legislative  intent. 

If  the  act  in  question  is  not  retroactive  the  contract  must  be  regu- 
lated by  the  law  in  existence  at  the  time  the  contract  was  made. 
There  was  no  penalty  annexed  to  the  usury  law  when  this  contract 
was  entered  into.  The  lender  was  entitled  to  his  money  and  legal 
interest  with  the  right  on  the  part  of  the  borrower  to  recoup  the 
money,  if  any,  paid.  We  are  not  able  to  perceive  the  application  of 
the  doctrine  in  reference  to  crimes  and  punishments  under  our  penal 
laws,  to  the  case  at  bar.  The  cases  from  the  Indiana  Supreme  Court 
have  heretofore  been  considered  by  this  court,  and  although  the  stat- 
ute, if  introduced,  differs  somewhat  from  the  Kentucky  statute,  even 
with  the  high  respect  we  have  for  the  learning  and  ability  of  that 
court,  still  we  could  not  give  a  similar  construction  to  such  a  statute. 

The  rights  of  the  parties  are  not  affected  by  the  change  made  in 
the  interest  laws,  as  to  transactions  originating  prior  to  the  passage 
of  that  act ;  nor  is  the  payment  of  money  upon  such  contracts  after 
its  passage  an  obstacle  to  its  recovery  back  by  the  borrower.  The 
written  obligation  to  pay  10  per  cent,  on  the  price  executed  after 
the  interest  law  was  enacted  can  be  enforced.  The  court  below 
having  adopted  this  view  of  the  questions  presented,  the  judgment 
must  be  affirmed. 

John  Roberts,  George  B.  East  on,  for  appellant. 
Barr,  Goodloe  &  Humphrey,  for  appellee. 


J.  W.  Croan  v.  J.  C.  Crenshaw.  745 

J.  W.  Croan  v.  J.  C.  Crenshaw. 

Slander — Words  Spoken  in  Jest. 

An  instruction  in  a  slander  case  is  correct  which  said  to  the  jury 
that  if  the  words  were  spoken  without  malice  and  in  Jest  and  were  so 
understood  by  those  who  heard  them,  the  law  was  for  the  defendant 

Malice. 

Malice  is  an  indispensable  ingredient  in  slander,  without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage. 

Malice. 

Where  words  spoken  are  in  themselves  actionable  malice  may  be 
presumed  from  their  falsity,  but  this  presumption  may  be  rebutted  by 
evidence. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

September  15,  1876. 

Opinion  by  Judge  Cofer: 

The  plaintiiT  (now  appellant)  alleged  that  he  and  the  defendant 
(now  appellee),  were  rival  candidates  for  the  office  of  county  attor- 
ney of  Bullitt  county;  that  the  defendant,  on  several  occasions, 
charged  in  his  public  speeches  that  the  plaintiff  had  turned  against 
his  clients,  and  instead  of  defending  them,  as  was  his  duty,  had  prose- 
cuted them  and  sent  one  to  the  penitentiary,  and  came  near  sending 
another. 

The  defendant  admitted  that  he  used  the  words  charged  in  the 
petition,  but  alleged  that  he  did  so  in  jest  and  without  malice ;  and  he 
alleged  that  those  who  heard  him  understood  his  remarks  as  made 
in  jest,  and  not  as  intending  to  charge  the  plaintiff  with  want  of 
loyalty  to  his  clients.  As  to  whether  the  charges  were  made  in  jest 
or  in  malice  the  evidence  was  conflicting.  The  court  instructed  the 
jury,  in  effect,  that  if  the  words  were  spoken  without  malice  and  in 
jest,  and  were  so  understood  by  those  who  heard  them,  the  law  was 
for  the  defendant. 

This,  we  think,  correctly  presented  the  law  of  the  case  to  the  jury. 
It  required  the  jury,  before  rendering  a  verdict  for  the  defendant,  to 
find  from  the  evidence  (i)  that  the  words  were  spoken  in  jest,  and 
(2)  that  they  were  uttered  without  malice.  This  the  jury  have  done 
by  their  verdict. 

Malice  is  an  indispensable  ingredient  in  slander.  Without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage,  of 
which  there  is  none  whatever  in  this  record.    Where  words  are  in 


744  Kentl'cky  Opinions. 

The  true  question  is,  **Ho\v  much  of  the  loan  and  legal  interest  has 
been  reimbursed  and  how  much  remains  unpaid.*'  It  is  now  too  well 
settled  in  this  state  to  admit  of  controversy  that  all  moneys  paid  by 
the  debtor  or  borrower  to  the  lender  on  the  debt,  whether  called 
usury  or  not,  will  be  treated  as  a  payment  of  so  much  of  the  debt  and 
the  kgal  interest  due ;  and  no  recovery  of  the  usury  can  be  had  until 
the  debt  and  legal  interest  is  paid.  There  is  nothing  in  this  case  to 
vary  the  rule  unless  the  interest  law  of  1876  is  retrospective  in  its 
operation,  and  invalidates  all  usurious  transactions  theretofore  made. 
Such  could  not  have  been  the  intention  of  the  legislature,  nor  is  such 
a  construction  authorized  by  the  language  of  the  act.  The  language 
of  the  enactment  is  that  it  shall  be  lawful  to  contract,  not  that  all 
contracts  now  in  existence  and  hereafter  to  be  made  shall  be  deemed 
lawful.  Courts  are  not  disposed  to  construe  such  law  as  retro- 
spective, and  disturb  the  rights  of  parties  fixed  and  understood  by 
the  law  in  existence  at  the  time  they  were  entered  into,  unless  there 
is  something  in  the  statute  indicating  at  least  that  such  was  the 
legislative  intent. 

If  the  act  in  question  is  not  retroactive  the  contract  must  be  regu- 
lated by  the  law  in  existence  at  the  time  the  contract  was  made. 
There  was  no  penalty  annexed  to  the  usury  law  when  this  contract 
was  entered  into.  The  lender  was  entitled  to  his  money  and  legal 
interest  with  the  right  on  the  part  of  the  borrower  to  recoup  the 
money,  if  any,  paid.  We  are  not  able  to  perceive  the  application  of 
the  doctrine  in  reference  to  crimes  and  punishments  under  our  penal 
laws,  to  the  case  at  bar.  The  cases  from  the  Indiana  Supreme  Court 
have  heretofore  been  considered  by  this  court,  and  although  the  stat- 
ute, if  introduced,  differs  somewhat  from  the  Kentucky  statute,  even 
with  the  high  respect  we  have  for  the  learning  and  ability  of  that 
court,  still  we  could  not  give  a  similar  construction  to  such  a  statute. 

The  rights  of  the  parties  are  not  affected  by  the  change  made  in 
the  interest  laws,  as  to  transactions  originating  prior  to  the  passage 
of  that  act ;  nor  is  the  payment  of  money  upon  such  contracts  after 
its  passage  an  obstacle  to  its  recovery  back  by  the  borrower.  The 
written  obligation  to  pay  10  per  cent,  on  the  price  executed  after 
the  interest  law  was  enacted  can  be  enforced.  The  court  below 
having  adopted  this  view  of  the  questions  presented,  the  judgment 
must  be  affirmed. 

John  Roberts,  George  B.  Easton,  for  appellant, 
Barr,  Goodloe  &  Humphrey,  for  appellee. 


J.  W.  Croan  v.  ],  C.  Crenshaw.  745 

J.  W.  Croan  v.  J.  C.  Crenshaw. 

Slander — Words  Spoken  in  Jest. 

An  instruction  in  a  slander  case  is  correct  which  said  to  the  jury 
that  if  the  words  were  spoken  without  malice  and  in  jest  and  were  so 
understood  by  those  who  heard  them,  the  law  was  for  the  defendant 

Malice. 

Malice  is  an  Indispensable  ingredient  in  slander,  without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage. 

Malice. 

Where  words  spoken  are  in  themselves  actionable  malice  may  be 
presumed  from  their  falsity,  but  this  presumption  may  be  rebutted  by 
evidence. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

September  15,  1876. 

Opinion  by  Judge  Cofer  : 

The  plaintiff  (now  appellant)  alleged  that  he  and  the  defendant 
(now  appellee),  were  rival  candidates  for  the  office  of  county  attor- 
ney of  Bullitt  county;  that  the  defendant,  on  several  occasions, 
charged  in  his  public  speeches  that  the  plaintiff  had  turned  against 
his  clients,  and  instead  of  defending  them,  as  was  his  duty,  had  prose- 
cuted them  and  sent  one  to  the  penitentiary,  and  came  near  sending 
another. 

The  defendant  admitted  that  he  used  the  words  charged  in  the 
petition,  but  alleged  that  he  did  so  in  jest  and  without  malice ;  and  he 
alleged  that  those  who  heard  him  understood  his  remarks  as  made 
in  jest,  and  not  as  intending  to  charge  the  plaintiff  with  want  of 
loyalty  to  his  clients.  As  to  whether  the  charges  were  made  in  jest 
or  in  malice  the  evidence  was  conflicting.  The  court  instructed  the 
jury,  in  effect,  that  if  the  words  were  spoken  without  malice  and  in 
jest,  and  were  so  understood  by  those  who  heard  them,  the  law  was 
for  the  defendant. 

This,  we  think,  correctly  presented  the  law  of  the  case  to  the  jury. 
It  required  the  jury,  before  rendering  a  verdict  for  the  defendant,  to 
find  from  the  evidence  ( i )  that  the  words  were  spoken  in  jest,  and 
(2)  that  they  were  uttered  without  malice.  This  the  jury  have  done 
by  their  verdict. 

Malice  is  an  indispensable  ingredient  in  slander.  Without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage,  of 
which  there  is  none  whatever  in  this  record.    Where  words  are  in 


744  Kentucky  Opinions. 

The  true  question  is,  "How  much  of  the  loan  and  legal  interest  has 
been  reimbursed  and  how  much  remains  unpaid."  It  is  now  too  well 
settled  in  this  state  to  admit  of  controversy  that  all  moneys  paid  by 
the  debtor  or  borrower  to  the  lender  on  the  debt,  whether  called 
usury  or  not,  will  be  treated  as  a  payment  of  so  much  of  the  debt  and 
the  legal  interest  due ;  and  no  recovery  of  the  usury  can  be  had  until 
the  debt  and  legal  interest  is  paid.  There  is  nothing  in  this  case  to 
vary  the  rule  unless  the  interest  law  of  1876  is  retrospective  in  its 
operation,  and  invalidates  all  usurious  transactions  theretofore  made. 
Such  could  not  have  been  the  intention  of  the  legislature,  nor  is  such 
a  construction  authorized  by  the  language  of  the  act.  The  language 
of  the  enactment  is  that  it  shall  be  lawful  to  contract,  not  that  all 
contracts  now  in  existence  and  hereafter  to  be  made  shall  be  deemed 
lawful.  Courts  are  not  disposed  to  construe  such  law  as  retro- 
spective, and  disturb  the  rights  of  parties  fixed  and  understood  by 
the  law  in  existence  at  the  time  they  were  entered  into,  unless  there 
is  something  in  the  statute  indicating  at  least  that  such  was  the 
legislative  intent. 

If  the  act  in  question  is  not  retroactive  the  contract  must  be  regu- 
lated by  the  law  in  existence  at  the  time  the  contract  was  made. 
There  was  no  penalty  annexed  to  the  usury  law  when  this  contract 
was  entered  into.  The  lender  was  entitled  to  his  money  and  legal 
interest  with  the  right  on  the  part  of  the  borrower  to  recoup  the 
money,  if  any,  paid.  We  are  not  able  to  perceive  the  application  of 
the  doctrine  in  reference  to  crimes  and  punishments  under  our  penal 
laws,  to  the  case  at  bar.  The  cases  from  the  Indiana  Supreme  Court 
have  heretofore  been  considered  by  this  court,  and  although  the  stat- 
ute, if  introduced,  differs  somewhat  from  the  Kentucky  statute,  even 
with  the  high  respect  we  have  for  the  learning  and  ability  of  that 
court,  still  we  could  not  give  a  similar  construction  to  such  a  statute. 

The  rights  of  the  parties  are  not  aflFected  by  the  change  made  in 
the  interest  laws,  as  to  transactions  originating  prior  to  the  passage 
of  that  act ;  nor  is  the  payment  of  money  upon  such  contracts  after 
its  passage  an  obstacle  to  its  recovery  back  by  the  borrower.  The 
written  obligation  to  pay  10  per  cent,  on  the  price  executed  after 
the  interest  law  was  enacted  can  be  enforced.  The  court  below 
having  adopted  this  view  of  the  questions  presented,  the  judgment 
must  be  affirmed. 

John  Roberts,  George  B,  Easton,  for  appellant. 
Barr,  Goodloe  &  Humphrey,  for  appellee. 


J.  W.  Croan  z'.  J.  C.  Crenshaw.  745 

J.  W.  Croan  v.  J.  C.  Crenshaw. 

Slander — Words  Spoken  in  Jest. 

An  instruction  in  a  slander  case  is  correct  which  said  to  the  jury 
that  if  the  words  were  spoken  without  malice  and  in  jest  and  were  so 
understood  by  those  who  heard  them,  the  law  was  for  the  defendant 

Malice. 

Malice  is  an  indispensable  ingredient  in  slander,  without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage. 

Malice. 

Where  words  spoken  are  in  themselves  actionable  malice  may  be 
presumed  from  their  falsity,  but  this  presumption  may  be  rebutted  by 
evidence. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

September  15,  1876. 

Opinion  by  Judge  Cofer: 

• 

The  plaintiff  (now  appellant)  alleged  that  he  and  the  defendant 
(now  appellee),  were  rival  candidates  for  the  office  of  county  attor- 
ney of  Bullitt  county ;  that  the  defendant,  on  several  occasions, 
charged  in  his  public  speeches  that  the  plaintiff  had  turned  against 
his  clients,  and  instead  of  defending  them,  as  was  his  duty,  had  prose- 
cuted them  and  sent  one  to  the  penitentiary,  and  came  near  sending 
another. 

The  defendant  admitted  that  he  used  the  words  charged  in  the 
petition,  but  alleged  that  he  did  so  in  jest  and  without  malice ;  and  he 
alleged  that  those  who  heard  him  understood  his  remarks  as  made 
in  jest,  and  not  as  intending  to  charge  the  plaintiff  with  want  of 
loyalty  to  his  clients.  As  to  whether  the  charges  were  made  in  jest 
or  in  malice  the  evidence  was  conflicting.  The  court  instructed  the 
jury,  in  effect,  that  if  the  words  were  spoken  without  malice  and  in 
jest,  and  were  so  understood  by  those  who  heard  them,  the  law  was 
for  the  defendant. 

This,  we  think,  correctly  presented  the  law  of  the  case  to  the  jury. 
It  required  the  jury,  before  rendering  a  verdict  for  the  defendant,  to 
find  from  the  evidence  (i)  that  the  words  were  spoken  in  jest,  and 
(2)  that  they  were  uttered  without  malice.  This  the  jury  have  done 
by  their  verdict. 

Malice  is  an  indispensable  ingredient  in  slander.  Without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage,  of 
which  there  is  none  whatever  in  this  record.    Where  words  are  in 


744  Kentucky  Opinions. 

The  true  question  is,  '*How  much  of  the  loan  and  legal  interest  has 
been  reimbursed  and  how  much  remains  unpaid."  It  is  now  too  well 
settled  in  this  state  to  admit  of  controversy  that  all  moneys  paid  by 
the  debtor  or  borrower  to  the  lender  on  the  debt,  whether  called 
usury  or  not,  will  be  treated  as  a  payment  of  so  much  of  the  debt  and 
the  legal  interest  due ;  and  no  recovery  of  the  usury  can  be  had  until 
the  debt  and  legal  interest  is  paid.  There  is  nothing  in  this  case  to 
vary  the  rule  unless  the  interest  law  of  1876  is  retrospective  in  its 
operation,  and  invalidates  all  usurious  transactions  theretofore  made. 
Such  could  not  have  been  the  intention  of  the  legislature,  nor  is  such 
a  construction  authorized  by  the  language  of  the  act.  The  language 
of  the  enactment  is  that  it  shall  be  lawful  to  contract,  not  that  all 
contracts  now  in  existence  and  hereafter  to  be  made  shall  be  deemed 
lawful.  Courts  are  not  disposed  to  construe  such  law  as  retro- 
spective, and  disturb  the  rights  of  parties  fixed  and  understood  by 
the  law  in  existence  at  the  time  they  were  entered  into,  unless  there 
is  something  in  the  statute  indicating  at  least  that  such  was  the 
legislative  intent. 

If  the  act  in  question  is  not  retroactive  the  contract  must  be  regu- 
lated by  the  law  in  existence  at  the  time  the  contract  was  made. 
There  was  no  penalty  annexed  to  the  usury  law  when  this  contract 
was  entered  into.  The  lender  was  entitled  to  his  money  and  legal 
interest  with  the  right  on  the  part  of  the  borrower  to  recoup  the 
money,  if  any,  paid.  We  are  not  able  to  perceive  the  application  of 
the  doctrine  in  reference  to  crimes  and  punishments  under  our  penal 
laws,  to  the  case  at  bar.  The  cases  from  the  Indiana  Supreme  Court 
have  heretofore  been  considered  by  this  court,  and  although  the  stat- 
ute, if  introduced,  differs  somewhat  from  the  Kentucky  statute,  even 
with  the  high  respect  we  have  for  the  learning  and  ability  of  that 
court,  still  we  could  not  give  a  similar  construction  to  such  a  statute. 

The  rights  of  the  parties  are  not  affected  by  the  change  made  in 
the  interest  laws,  as  to  transactions  originating  prior  to  the  passage 
of  that  act ;  nor  is  the  payment  of  money  upon  such  contracts  after 
its  passage  an  obstacle  to  its  recovery  back  by  the  borrower.  The 
written  obligation  to  pay  10  per  cent,  on  the  price  executed  after 
the  interest  law  was  enacted  can  be  enforced.  The  court  below 
having  adopted  this  view  of  the  questions  presented,  the  judgment 
must  be  affirmed. 

John  Roberts,  George  B,  Easton,  for  appellant, 
Barr,  Goodloe  &  Humphrey,  for  appellee. 


J.  W.  Croan  v,  J.  C.  Crenshaw.  745 

J.  W.  Croan  v.  J.  C.  Crenshaw. 

Slander — Words  Spoken  in  Jest. 

An  instruction  in  a  slander  case  is  correct  which  said  to  the  Jury 
that  if  the  words  were  spoken  without  malice  and  in  jest  and  were  so 
understood  by  those  who  heard  them,  the  law  was  for  the  defendant. 

Malice. 

Malice  is  an  indispensable  ingredient  in  slander,  without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage. 

Malice. 

Where  words  spoken  are  in  themselves  actionable  malice  may  be 
presumed  from  their  falsity,  but  this  presumption  may  be  rebutted  by 
evidence. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

September  15,  1876. 

Opinion  by  Judge  Cofer: 

* 

The  plaintiff  (now  appellant)  alleged  that  he  and  the  defendant 
(now  appellee),  were  rival  candidates  for  the  office  of  county  attor- 
ney of  Bullitt  county;  that  the  defendant,  on  several  occasions, 
charged  in  his  public  speeches  that  the  plaintiff  had  turned  against 
his  clients,  and  instead  of  defending  th^m,  as  was  his  duty,  had  prose- 
cuted them  and  sent  one  to  the  penitentiary,  and  came  near  sending 
another. 

The  defendant  admitted  that  he  used  the  words  charged  in  the 
petition,  but  alleged  that  he  did  so  in  jest  and  without  malice ;  and  he 
alleged  that  those  who  heard  him  understood  his  remarks  as  made 
in  jest,  and  not  as  intending  to  charge  the  plaintiff  with  want  of 
loyalty  to  his  clients.  As  to  whether  the  charges  were  made  in  jest 
or  in  malice  the  evidence  was  conflicting.  The  court  instructed  the 
jury,  in  effect,  that  if  the  words  were  spoken  without  malice  and  in 
jest,  and  were  so  understood  by  those  who  heard  them,  the  law  was 
for  the  defendant. 

This,  we  think,  correctly  presented  the  law  of  the  case  to  the  jury. 
It  required  the  jury,  before  rendering  a  verdict  for  the  defendant,  to 
find  from  the  evidence  (i)  that  the  words  were  spoken  in  jest,  and 
(2)  that  they  were  uttered  without  malice.  This  the  jury  have  done 
by  their  verdict. 

Malice  is  an  indispensable  ingredient  in  slander.  Without  it  there 
can  be  no  slander  in  the  absence  of  evidence  of  special  damage,  of 
which  there  is  none  whatever  in  this  record.    Where  words  are  in 


754  Kentucky  Opinions. 

and  then  Breen  and  John  Wallace  and  Michael  Murphy  executed  the 
following  covenant : 

"We,  Thomas  Breen,  Michael  Murphy,  and  John  Wallace,  hereby 
bind  ourselves  jointly  and  severally  to  pay  John  A.  Nelson,  adminis- 
trator and  guardian  aforesaid,  said  sum  of  five  hundred  dollars,  rent 
of  said  farm  and  premises,  for  the  rental  year  ending  March  lo, 
1 87 1,  without  defalcation,  and  all  damages  that  may  accrue  to  said 
Nelson,  for  said  Thomas  Breen  not  fully  complying  with  his  terms 
of  this  lease  for  said  first  years  renting  of  said  farm.  This  i8th  day 
of  September,  1869." 

It  will  be  seen  that  by  the  terms  of  this  covenant  executed  by  ap- 
pellants they  only  bound  themselves  to  pay  the  rent  of  said  prem- 
ises for  the  first  year,  and  no  longer ;  and  also  they  agreed  to  pay 
such  damages  as  might  result  to  the  lessor  for  the  failure  of  the  said 
Thomas  Breen  to  comply  with  the  terms  of  his  lease  for  said  first 
year.  It  results,  therefore,  that  there  is  a  fatal  variance  between  al- 
legations of  the  petition  and  the  appellants'  obligation,  which  is  filed 
as  a  part  thereof;  and  as  the  appellants'  covenant  must  control  the 
allegations  of  appellee's  petition  so  far  as  they  are  inconsistent  there- 
with, we  are  of  opinion  that  the  judgment  of  the  lower  court  against 
the  appellants  for  four  hundred  dollars  was  erroneous.  Indeed,  the 
petition,  when  compared  with  appellants'  covenant,  fails  to  show 
any  cause  of  action  against  them  of  which  the  circuit  court  had 
jurisdiction.  The  said  appellants  were  only  bound  for  one  year's 
rent  of  the  premises,  and  as  the  petition  showed  that  all  of  said  year's 
rent  had  been  paid  except  twenty  dollars,  the  plaintiff  failed  to  show 
a  cause  of  action  within  the  jurisdiction  of  the  court,  and  his  peti- 
tion should  have  been  dismissed. 

Wherefore  said  cause  is  reversed  as  to  appellants,  and  remanded 
with  directions  to  dismiss  the  plaintiff's  action. 

E.  C.  Phister,  for  appellants. 
IVhitaker  &  Robertson,  for  appellee. 


Commonwealth  v.  Robert  Vanmeter. 

Criminal  Law — Amendment. 

An  indictment  can  only  be  found  and  presented  by  a  grand  Jury  and 
no  amendment  can  be  allowed. 

Warrant. 

A  warrant  in  a  criminal  case  may  be  amended. 


Farmers'  Bank  of  Kentucky  v,  Louisville,  etc.,  R.  Co.      755 

APPEAL.  FROM  HARDIN  CIRCUIT  COURT. 

October  4,  1876. 

Opinion  by  Judge  Cofer: 

The  warrant  in  this  case  is  in  substantial  conformity  to  the  re- 
quirements of  Sees.  24  and  321  of  the  Criminal  Code,  and  the  court 
erred  in  quashing  it.  If  it  had  not  been  originally  sufficient  the 
amendment  proposed  should  have  been  allowed.  The  amendment 
would  not  have  changed  the  character  of  the  prosecution,  nor  would 
it  have  infringed  the  rule  that  the  case  tried  in  the  circuit  court,  on 
appeal,  must  be  the  same  case  which  was  tried  in  the  inferior  court. 

An  indictment  can  only  be  found  and  presented  by  a  grand  jury, 
and  therefore  no  amendment  of  an  indictment  can  be  allowed.  But 
a  warrant  which  issues  upon  information  may  be  amended  in  the 
same  manner  as  a  warrant  in  a  civil  case.  Judgment  reversed  and 
cause  remanded,  with  directions  to  overrule  the  motion  to  quash  the 
warrant. 

Attorney-general,  for  appellant.     J,  P.  Hobson,  for  appellee. 


Farmers'  Bank  of  Kentucky  v,  Lx)uisville,  Cincinnati  and 

Lexington  R.  Co. 

Attachment— Garnishment 

After  the  service  of  a  garnishee  notice  on  a  person  indebted  to  a 
defendant,  such  garnishee  may  legally  pay  to  such  defendant  the 
amount  of  its  indebtedness  in  excess  of  the  sum  demanded  by  plaintiff 
from  the  defendant. 

Garnishee. 

The  service  of  a  notice  on  a  garnishee  defendant  when  he  is  in* 
debted  to  the  defendant  does  not  amount  to  attaching  a  specific  fund 
nor  does  it  constitute  a  lien  on  the  fund.  It  merely  prevents  the  gar« 
nishee  from  paying  the  fund  to  the  defendant,  and  if  the  garnishee  be* 
comes  insolvent,  the  plaintiff  is  only  on  an  equal  footing  with  other 
creditors. 

APPEAL  FROM  LOUISVILLE  CHANCJERY  COURT. 

October  4,  1876. 

Opinion  by  Judge  Pryc«  : 

The  Farmers'  Bank  of  Kentucky  (appellant)  loaned  to  the  Chesa- 
peake and  Ohio  R.  Co.,  a  nonresident  corporation,  thirty  thousand 


756  Kentucky  Opinions. 

dollars,  and  upon  its  failure  to  pay  the  debt  at  maturity  instituted  an 
action  on  the  note,  and  obtained  an  attachment.  It  is  alleged  in  the 
petition  that  the  Louisville,  Lexington  and  Cincinnati  R.  Co.  is  in- 
debted to  the  Chesapeake  and  Ohio  R.  Co.  in  the  sum  of  $200,000; 
and  the  plaintiff  (appellant)  asks  that  the  amount  of  its  debt,  inter- 
est and  costs  be  adjudged  against  the  Louisville,  Lexington  and  Cin- 
cinnati R.  Co.  out  of  what  it  owes  the  Chesapeake  and  Ohio  road. 

An  ordinary  attachment  was  issued,  directing  the  officer  to  attach 
sufficient  property  of  the  debtor  to  satisfy  the  sum  of  $30,930,  the 
debt  interest  and  probable  cost  of  the  action,  and  to  summon  the  gar- 
nishee. The  Louisville,  Cincinnati  &  Lexington  R.  Co.  was  sum- 
moned by  the  delivery  of  a  copy  of  the  attachment  and  summons  to 
the  president.  Wilder;  and  there  was  also  delivered  to  Wilder,  as 
president  of  the  road,  a  copy  of  the  attachment,  etc.,  with  an  indorse- 
ment notifying  him  of  the  object  of  the  action,  viz.:  "to  attach  all 
money,  property,  chose  in  action,  etc.,  in  his  hands  or  under  his  con- 
trol, belonging  to  the  debtor." 

The  Louisville,  Cincinnati  &  Lexington  R.  Co.,  at  the  time  of 
the  service  on  its  president,  was  indebted  to  the  Chesapeake  and 
Ohio  road  in  the  sum  of  two  hundred  thousand  dollars.  This  indebt- 
edness was  admitted,  and  the  attachment  being  sustained,  a  judg- 
ment was  rendered  against  the  Louisville,  Cincinnati  and  Lexington 
R.  Co.  for  the  amount  of  the  note,  interest  and  costs.  Upon  this 
judgment  an  execution  was  issued,  and  was  returned  no  property 
found;  and  now  the  appellant  (the  bank)  has  instituted  the  present 
action  seeking  to  make  Wilder,  the  president  of  the  Louisville,  Cin- 
cinnati, and  Lexington  R.  Co.,  individually  liable,  the  last-named 
company  being  insolvent.  After  this  company  had  been  summoned 
as  garnishee,  and  the  notice  served  on  its  president,  the  company,  by 
its  officers,  its  president  and  directors,  paid  to  the  Chesapeake  and 
Ohio  road  all  of  its  indebtedness  to  that  road,  except  the  amount 
gamisheed  in  its  hands,  retaining  that  much  of  the  debt  to  answer  the 
final  outcome  of  the  litigation.  The  appellant  insists  that  the  pay- 
ment of  the  money  after  service  of  the  attachment  makes  the  presi- 
dent personally  liable  for  its  debt. 

There  is  no  proof  of  fraud  in  the  case,  or  of  the  existence  of  any 
combination  between  these  appellees  and  the  directors  of  the  corpo- 
ration, that  was  the  real  or  original  debtor,  to  prevent  the  appellant 
from  making  its  debt ;  and  the  principal  ground  relied  on  for  a  re- 
covery is  that  the  appellant  had  a  Hen  on  the  whole  indebtedness 
from  the  one  company  to  the  other.   There  was  no  specific  fund  at- 


Farmers'  Bank  of  Kentucky  v.  Louisville,  etc.,  R.  Co.      757 

tached,  nor  any  property  seized,  and  the  appellant  was  only  asking 
to  be  permitted  to  make  its  debt  out  of  the  Louisville,  Cincinnati  and 
Lexington  R.  Co.,  the  debtor  of  the  Chesapeake  and  Ohio  R.  Co.,  or 
in  other  words  to  stand  in  the  shoes  of  the  debtor  with  the  right  to 
coerce  payment  out  of  the  property  of  the  garnishee.  This  right  the 
appellant  was  entitled  to  when  the  attachment  was  sustained;  and 
the  means  of  supporting  it  is  in  the  judgment  of  the  court  requiring 
the  Louisville,  Cincinnati  and  Lexington  R.  Co.  to  pay  the  debt.  If 
the  company  had  not  paid  one  dollar  of  its  indebtedness  to  the 
Chesapeake  and  Ohio  R.  Co.,  the  identical  judgment  would  have 
been  rendered,  and  the  debt  owing  by  the  garnishee  applied  to  the 
payment  of  the  debt  owing  the  appellant. 

The  Louisville,  Cincinnati  and  Lexington  R.  Co.,  if  the  facts  au- 
thorized it,  might  have  been  required  to  bring  the  money  into  court 
by  rule,  but  this  was  not  done ;  and  the  appellant,  as  the  case  is  now 
presented,  can  only  enforce  the  claim  against  the  garnishee  as  any 
other  creditor  could  have  done.  It  had  no  lien  on  the  ganushee's 
estate,  and  had  only  acquired  the  right,  by  reason  of  the  attachment, 
to  say  to  the  garnishee,  "You  must  not  pay  this  much  of  your  debt 
to  the  Chesapeake  and  Ohio  R.  Co.  or  to  any  creditor  of  that  com- 
pany. My  attachment  gives  me  alone  the  right  to  demand  payment." 
The  garnishment  gave  to  the  appellant  an  equitable  right  to  this  debt 
as  against  the  other  creditors  of  the  debtor.  The  fact  that  the  Louis- 
ville, Cincinnati  and  Lexington  R.  Co.  had  been  summoned  as  gar- 
nishee did  not  prevent  it  from  paying  its  debts,  or  giving  to  the  ap- 
pellant a  lien  upon  the  property  or  earnings,  or  placing  the  appellant 
in  any  better  condition  than  any  other  creditor  of  the  company ;  and 
if  the  garnishee  is  insolvent  the  appellant  must  abide  its  fate  with 
the  other  creditors.  The  garnishee,  having  admitted  the  indebted- 
ness, became  liable  for  the  debt  upon  the  attachment  being  sustained, 
and  that  liability  is  not  questioned. 

The  appellant  is  proceeding  upon  the  idea  that  it  has  a  lien  upon 
a  particular  fund  to  pay  its  debt,  and  ^at  the  appellee  held  the  fund 
in  trust  for  its  benefit,  and  that  $200,000  of  the  garnishee's  money  or 
property  had  been  set  apart  by  reason  of  the  proceeding  as  a  fund 
out  of  which  the  demand  must  be  satisfied.  This  is  a  mistaken  view 
of  the  case.  All  that  appellant  acquired  was  the  right  to  appropriate 
so  much  of  the  debt  due  the  garnishee  as  would  satisfy  its  own  debt, 
and  this  appropriation  has  been  made  by  the  judgment  rendered. 
No  lien  exists  upon  the  garnishee's  property,  and  the  creditor  is 
only  substituted  to  the  rights  of  his  debtor,  and  has  no  preference 


758  Kentucky  Opinions. 

over  any  other  creditor  of  the  garnishee  except  in  so  far  as  he  may 
acquire  it  by  the  levy  of  his  execution. 

If  no  payment  had  been  made  by  the  Louisville,  Cincinnati  and 
Lexington  R.  Co.  to  the  Chesapeake  &  Ohio  R.  Co.,  the  judgment 
would  not  have  directed  that  $200,000  of  the  garnishee's  property  be 
set  apart  to  pay  it,  but  only  a  judgment  rendered  against  the  gar- 
nishee for  the  amount  of  appellant's  debt,  interest  and  costs.  The  ap- 
pellee acted  in  good  faith.  It  refused  to  pay  over  the  amount  guar- 
anteed in  the  hands  of  the  company,  and  recognized  the  liability  of 
the  company  to  pay  it.  This  is  all  the  appellant  has  asked,  and  it 
can  demand  no  more.  Where  a  particular  fund  is  attached  or  the 
party  restrained  from  paying  any  part  of  it  over,  or  where  specific 
property  is  attached,  the  lien  exists ;  and  such  is  the  authority  relied 
on  by  counsel. 

In  this  case  the  company  and  its  officers  were  only  required  by  the 
suit  itself  to  retain  so  much  of  th^ir  indebtedness  as  would  satisfy 
appellant's  claim.  This  was  done,  and  now,  as  the  company  has  be- 
come solvent,  it  is  maintained  that  the  president  is  individually  lia- 
ble because  he,  together  with  the  directors,  paid  or  directed  to  be 
paid  to  the  Chesapeake  and  Ohio  R.  Co.,  the  balance  of  its  debt 
Such  is  not  the  law. 

The  railroad  company  is  liable,  but  no  individual  responsibility 
rests  upon  its  officers. 

The  judgment  is  affirmed. 

A,  J.  James,  Muir,  Bijou  &  Davie,  for  appellant, 
James  Speed,  for  appellee. 


R.  M.  Lesly  r.  John  D.  Minos. 

New  Trial — Newly  Discovered  Evidence. 

Where  one  suffera  Judgment  and  prior  thereto  had  made  no  diligent 
search  for  a  receipt,  he  is  not  entitled  to  a  new  trial  because  slnee  the 
trial  he  has  found  the  receipt. 

APPEAL  FROM  PIKE  CIRCUIT  COURT. 

October  5,  1876. 

Opinion  by  Judge  Pryor  : 

It  is  alleged  in  the  petition  to  vacate  the  judgment,  by  the  appel- 
lant, that  he  made  diligent  search  after  the  judgment  had  been  ren- 


Richard  Realy  v.  Commonwealth.  759 

dered  against  him,  for  the  lost  note,  being  satisfied  that  he  had  paid 
it,  and  upon  making  this  search  found  it  among  his  appellant's  pa- 
pers ;  that  the  appellee  was  mistaken  in  alleging  that  it  had  not  been 
paid,  and  asserted  his  right  to  a  judgment  from  a  want  of  recollec- 
tion as  to  what  had  transpired  prior  to  the  war.  The  statements  of  the 
petition,  if  true,  do  not  bring  the  case  within  any  of  the  provisions 
of  the  Code  of  Practice,  authorizing  the  granting  of  new  trial  or 
vacating  judgment.  If  the  appellant  had  made  diligent  search  before 
judgment,  and  when  process  was  served  upon  him,  he  might  have 
found  the  note,  and  according  to  his  own  statement  the  judgment 
against  him,  if  improper,  results  from  his  own  laches. 

Besides,  the  appellant's  own  father  now  swears  that  he  was  present 
when  the  money  was  paid  and  the  note  taken  up,  and  of  this  fact 
the  appellant  must  have  been  apprised.  He  was,  therefore,  negli- 
ment  in  not  making  inquiry  of  those  who,  according  to  his  own 
statement,  must  have  known  all  about  it.  The  appellee  also  accounts 
for  the  manner  in  which  the  father  of  appellant  got  possession  of 
the  note.  Brown,  the  attorney,  says  that  the  note  alleged  to  have  been 
lost  was  given  up  to  appellant's  father  for  the  purpose  of  having  it 
renewed ;  that  both  the  old  note  and  the  renewal  note  was  handed  to 
the  father  with  the  direction  that  when  renewed  it  was  to  be  deliv- 
ered to  a  man  by  the  name  of  Hamilton.  The  note  held  was  renewed, 
and  the  father  may  have  forgotten  to  deliver  the  old  note  to  Hamil- 
ton. He,  however,  swears  that  the  note  was  paid  to  Hamilton,  and 
this  may  be  true ;  but  such  negligence  on  the  part  of  the  appellant 
in  the  preparation  of  his  defense,  connected  with  the  doubt  therein 
on  the  question  of  payment  created  by  the  testimony  of  Brown,  pre- 
cludes a  court  of  equity  from  affording  any  relief ;  and,  in  fact,  tlie 
statements  in  the  petition,  if  conceded  to  be  true,  present  no  case  for 
the  interposition  of  the  chancellor. 

Judgment  affirmed, 

Apperson  &  Reid,  for  appellant.     George  N,  Brown,  for  appellee. 


Richard  Realy  v.  Commonwealth. 

Criminal  Law — Evidence — Larceny. 

Where  in  an  indictment  a  defendant  is  charged  with  stealing  a 
horse  in  1874  from  a  certain  named  person,  it  was  competent  for  the 
commonwealth  to  prove  that  the  theft  took  place  in  1872. 


760  Kentucky  Opinions. 

APPEAL  PROM  MARION  CIRCUIT  COURT. 

October  6,  1876. 

Opinion  by  Judge  Cofer  : 

We  do  not  perceive  in  this  case  any  substantial  error  to  the  preju- 
dice of  the  appellant.  He  had  no  right  to  complain  of  the  introduc- 
tion of  evidence  tending  to  prove  him  guilty  of  stealing  Simpson's 
horse  in  1872;  for  although  it  was  alleged  in  the  indictment  in  this 
case  that  the  horse  stealing  therein  charged  was  committed  in  1874, 
it  was  competent  to  prove  the  stealing  of  a  horse  from  Simpson  at 
any  time  prior  to  the  finding  of  the  indictment. 

There  was  no  error  in  refusing  to  allow  the  appellant  to  prove  the 
conversation  had  with  Preitt,  or  that  with  the  two  men  who  are  said 
to  have  brought  the  horse  to  his  house.  Neither  of  these  conversa- 
tions occurred  at  the  time  the  horse  is  said  to  have  been  delivered 
to  the  appellant.  One  was  more  than  a  half  hour  afterwards,  and  the 
other  after  the  horse  had  been  delivered  and  the  parties  went  into 
the  house.  Neither  conversation  related  to  or  explained  an  act  being 
done  at  the  time  the  conversation  was  had,  and  therefore  neither  was 
admissible  as  a  part  of  the  res  gestae. 

We  perceive  no  objection  to  the  instructions  given.  The  words, 
"feloniously  stole,  took,  and  carried  away,"  were  sufficiently  specific, 
and  must  have  been  understood  by  the  jury,  and  are  not  obnoxious  to 
the  objection  that  a  question  of  law  was  submitted  to  the  jury.  In- 
structions 7  and  8  were  properly  refused.  No.  7  was  wTong  because 
by  it  the  court  was  asked  to  say  that  a  conviction  could  not  be  had 
for  the  stealing  of  the  horse  mentioned  in  the  indictment  unless  such 
stealing  was  on  or  about  the  date  mentioned  in  the  indictment.  No. 
8  was  substantially  given  in  the  other  instructions,  especially  in  No.  4. 

Judgment  affirmed. 

C.  S.  Hill,  /.  IV.  Jones,  for  appellant.    Moss,  for  appellee. 


J.  L.  Barnard  v.  Commonwealth. 

Criminal  Law — Plea  to  Indictment. 

Where  there  has  been  no  plea  to  the  indictment  before  the  trial  in 
the  circuit  court  and  no  objection  made  because  of  such  omission,  the 
case  will  be  treated  in  the  court  of  appeals  as  if  the  plea  had  been 
made. 


J.  L.  Barnard  v.  Commonwealth.  761 

Obstruction  of  Highway. 

When  in  a  criminal  case  one  is  charged  with  obstructing  a  public 
highway,  the  question  of  whether  the  way  obstructed  was  a  public 
highway  should  be  submitted  to  the  Jury. 

Agency  in  Crime. 

There  can  be  no  agency  in  crime  and  a  landlord  who  was  not  pres- 
ent or  directing  his  tenant  to  build  a  fence  in  a  public  highway  can- 
not be  held  guilty.  In  such  case  the  prosecution  should  be  against 
the  tenant. 

APPEAL  FROM  OHIO  CIRCUIT  COURT. 

October  6,  1876. 

Opinion  by  Judge  Elliott  : 

This  appeal  questions  the  correctness  of  the  judgment  in  the 
above  cause,  and  mainly  on  the  ground  that  the  court  below  failed 
to  properly  instruct  the  jury. 

The  indictment  charged  the  defendant  with  the  erection  of  a 
fence  in  the  public  highway  and  its  continuance  therein  for  one 
year.  The  record  fails  to  show  that  the  defendant  put  in  any  plea 
to  the  indictment,  but  it  does  show  that  he  not  only  appeared  and 
resisted  the  recovery  all  through  the  trial,  but  that  even  after  it  was 
over  he  filed  grounds  for  a  new  trial  and  supported  them  with  several 
affidavits,  and  this  record  fails  to  show  that  either  his  evidence  or 
other  effort  to  manifest  his  innocence  were  objected  to  by  the  state 
attorney  because  he  had  failed  to  plead  to  the  indictment.  The  case 
having  been  tried  in  the  court  below  as  if  the  defendant  had  plead 
not  guilty,  it  will  be  so  treated  here.  There  were  several  witnesses 
sworn  as  to  whether  the  fence  encroached  upon  the  public  highway, 
but  the  commonwealth  failed  to  show  by  any  record  evidence  that 
any  public  highway  had  ever  been  located  at  the  place  where  defend- 
ant had  built  his  fence;  nor  does  the  evidence  show  that  a  road 
where  the  obstruction  occurs  had  been  made  and  used  by  the  public 
for  such  a  length  of  time  as  to  create  the  presumption  of  a  dedication 
of  the  said  land  over  which  said  road  ran  to  the  public  for  public 
use  as  a  highway.  We  are,  therefore,  of  opinion  that  the  question  as 
to  whether  the  road  charged  to  have  been  obstructed  by  defendant's 
fence  was  a  public  road  or  not,  ought  to  have  been  submitted  to  the 
jury,  and  the  failure  of  the  court  so  to  do  was  error. 

The  only  proof  in  this  record  connecting  the  defendant  with  the 
erection  of  said  fence  is  that  his  tenant.  Harper,  built  the  fence  at 
the  place  charged  in  the  indictment  to  be  an  encroachment  on  the 


762  Kentucky  Opinions. 

public  road.  Upon  this  evidence  the  court  instructed  the  jury  that 
if  the  defendant,  by  himself  or  agent,  created  said  obstruction,  he 
was  guilty  as  charged;  and  the  jury  may  have  inferred  that  Harper 
was  defendant's  agent  from  the  mere  fact  that  he  was  his  tenant.  A 
tenant  is  as  independent  of  his  landlord  and  has  as  absolute  a  prop- 
erty in  the  premises  and  the  control  of  them  during  the  continuance 
of  his  term,  as  the  landlord  had  before  he  rented  them,  and  if  the 
premises  where  the  obstruction  occurred  were  in  the  possession  of 
Harper  as  tenant  for  an  unexpired  term,  and  he  was  guilty  of  the 
purpresture,  the  defendant  is  not  guilty,  unless  he  directed  or  sanc- 
tioned the  same;  and  the  fact  that  Harper  was  his  tenant  did  not 
make  him  his  agent  especially  in  the  commission  of  a  trespass.  As 
the  jury  may  have  believed  that  as  tenant  Harper  was  the  general 
agent  of  his  landlord,  and  by  reason  of  the  failure  of  the  court  to  dis- 
tinguish between  an  agent  and  a  tenant  in  his  instruction,  we  are  of 
opinion  the  said  cause  should  be  rez'ersed,  which  is  done,  and  said 
cause  remanded  with  leave  to  the  defendant  to  plead  to  the  indict- 
ment, and  for  further  proceedings  not  inconsistent  with  this  opinion. 

Walker  &  Hubbard,  for  appellant.    Moss,  for  appellee. 


Bank  of  Columbia  v.  W.  P.  D.  Bush, 

Corporations— Bond  for  Costs— Dismissal  of  Action. 

A  suit  brought  by  a  corporation  in  this  state  must  be  dismissed 
when  it  fails  to  give  bond  for  costs  before  commencing  the  suit 

APPEAL  FROM  LOUISVILLE  CHANCBRT  C0X7RT. 

October  7,  1876. 

Opinion  by  Judge  Elliott  : 

The  appellant  is  a  corporation,  and  as  such  brought  this  suit, 
without  having  first  executed  a  bond  for  the  cost  of  the  action.  On 
appellee's  motion,  and  because  said  bond  had  not  been  executed,  said 
suit  was  dismissed  without  prejudice,  and  this  action  of  the  court 
below  is  complained  of  by  appellant.  The  law  on  the  subject  is  un- 
ambig^uous,  and  is  to  be  found  in  the  General  Statutes,  p.  265,  and  is 
as  follows :  "When  a  non-resident  or  any  corporation  shall  institute 
an  action  in  any  court,  whether  suing  in  his  own  right  or  as  repre- 
sentative of  another,  he  shall  l^efore  the  commencement  thereof, 
give  bond  with  a  surety  resident  in  this  state,  payable  to  the  defend- 


Elizabeth  Graham  v.  Samuel  R.  Graham.  763 

ant,  to  pay  all  cost  that  may  accrue  in  consequence  thereof  either  to 
the  opposite  party  or  the  officers  of  court."  If  the  plaintiff  fails  to 
give  surety  for  cost,  as  required  by  the  provisions  of  this  chapter, 
his  action  shall  be  dismissed. 

It  will  be  seen  that  this  statute  leaves  no  room  for  construction.  It 
says  to  the  appellant  that  before  it  brings  an  action  in  this  state  it 
must  g^ve  surety  for  cost;  and  if  it  fails  so  to  do,  it  says  to  the 
court  that  it  shall  dismiss  its  action;  and  consequently  the  court  in 
which  the  suit  was  brought  had  no  discretion.  Any  exercise  of  dis- 
cretion which  operated  as  a  refusal  to  dismiss  the  suit  on  motion 
made  to  do  so,  would  have  been  a  violation  of  the  statute.  We  see  no 
escape  from  the  provisions  of  the  statute.  It  is  not  contended  that  it 
is  unconstitutional,  &nd  its  words  are  imperative  that  a  suit  by  a  cor- 
poration "shall  be  dismissed"  if  bond  for  cost  is  not  executed  "be- 
fore" its  "commencement."  We  see  nothing  wrong  in  the  statute  ex- 
cept that  it  puts  a  corporation  in  the  masculine  gender,  and  that  er- 
ror, if  any,  is  not  before  us  for  correction. 

But  it  is  contended  that,  under  the  rules  of  practice  of  the  Louis- 
ville chancery  court,  notice  of  appellee's  motion  should  have  been 
given  to  appellant,  and  the  same  should  have  been  in  writing;  but 
these  errors,  if  any,  were  waived  by  appellant's  failure  to  object 
thereto  in  the  court  below. 

Wherefore  the  judgment  must  be  affirmed.  Judge  Cofer  did  not 
sit  in  this  case. 

Alexander  &  Dickerson,  for  appellant. 
Barrett  &  Brown,  for  appellee. 


Elizabeth  Graham  v.  Samuel  R.  Graham. 

Appeals — Practice — Bill  of  ESxceptions. 

Where  a  pleading  offered  for  filing  is  rejected  it  will  not  be  a  part 
of  the  record  unless  made  so  by  a  bill  of  exceptions  or  order  of  the 
court. 

APPBAL  FROM  LOUISVILLE  CHANCERY  COURT. 

October  7,  1876. 

Opinion  by  Judge  Gofer  : 

After  careful  search  therefor,  we  do  not  find  in  the  transcript  the 
amended  answer  and  counterclaim  which  the  record  shows  appel- 


764  Kentucky  Opinions. 

lant's  counsel  offered  to  file.  We  cannot,  therefore,  decide  that  the 
chancellor  erred  in  refusing  to  allow  it  to  be  filed. 

The  record  shows  such  a  pleading  was  tend-ered,  and  that  the  mo- 
tion to  file  it  was  denied ;  but* it  does  not  appear  to  have  been  in  any 
way  made  a  part  of  the  record ;  and  if  it  were  before  us  we  could  not, 
as  has  been  repeatedly  decided,  treat  it  as  constituting  any  part  of 
the  record  of  the  case.  The  case  of  Ballard  v.  Capcrton,  2  Met.  412, 
and  Mayer  v.  Mayer,  3  lb.  298,  related  to  the  costs  incurred,  while 
the  relation  of  husband  and  wife  existed.  In  this  case  that  relation 
ceased,  with  the  judgment  divorcing  the  appellee,  and  with  it  his  lia- 
bility for  costs  of  the  appellant,  ceased. 

Petition  overruled. 

M.  Mundy,  for  appellant.    Mix  &  Boothe,  for  appellee. 


Samuel  Barnard  zk  Commonwealth. 

Criminal  Law — Homicide — Caution  Required  in  Handling  a  Gun. 

One  who  kills  another  without  malice  and  with  no  Intention  to  kill 
by  snapping  a  pistol  and  pointing  it  at  another  belieying  it  not  to  be 
loaded  is  not  guilty  if  he  has  used  such  diligence  as  an  ordinarily 
prudent  person  would  have  deemed  necessary  to  satisfy  himself  that 
the  pistol  was  not  loaded,  and  did  in  fact  believe  it  was  not  loaded. 

Caution  Required  in  Handling  a  Gun. 

Before  a  man  deals  with  a  gun  or  pistol  as  if  it  were  not  charged, 
it  is  incumbent  upon  him  to  ascertain  whether  it  is  so  or  not  and  if  he 
does  not  use  reasonable  caution  in  this  respect,  and  afterwards  upon 
pulling  the  trigger  it  unexpectedly  explodes  and  kills  a  person,  it  will 
be  manslaughter. 

APPEAL  FROM  LAUREL  CIRCUIT  COURT. 

October  9, 1876. 

Opinion  by  Judge  Cofer: 

The  appellant  was  indicted  in  the  Laurel  circuit  court  for  the  mur- 
der of  Mary  J.  Martin,  by  shooting  her  with  a  pistol.  At  the  time 
the  shooting  occurred  the  appellant  was  about  sixteen  years  of  age, 
and  resided  with  his  father,  James  Barnard,  w^ho  kept  a  store.  Some 
time  prior  to  the  killing  of  the  deceased  James  Barnard  sold  a  pair 
of  pants  to  some  one  who  was  unable  to  pay  for  them  in  full,  and 
they  left  with  him  a  pistol  as  security  for  seventy-five  cents,  the  bal- 
ance unpaid.    Th€  pistol  was  thrown  about  the  house  and  played 


Samuel  Barnard  v.  Commonwealth.  765 

with  by  the  children  of  James  Barnard,  until  the  morning  of  the  day 
on  which  the  unfortunate  shooting  of  the  deceased  occurred.  On 
that  morning  Barnard  offered  to  sell  the  pistol  to  Brown  Davis,  who 
loaded  it  and  went  to  the  woods  to  see  whether  it  would  shoot  well ; 
but  some  ladies,  of  whom  the  deceased  was  one,  coming  along,  he 
returned  without  discharging  the  pistol  and  laid  it  down  in  the  store, 
without  giving  notice  to  any  one  that  he  had  loaded  it.  In  the  even- 
ing of  that  day  the  appellant  took  up  the  pistol  and  burst  several 
caps  on  it,  holding  the  muzzle  toward  the  ceiling;  some  of  his 
brothers  and  sisters  younger  than  himself  were  in  the  store  at  the 
time,  and  he  in  jest  and  play  snapped  the  pistol  several  times,  while 
holding  it  toward  them ;  and  the  deceased  coming  in,  he  pointed  it 
toward  her,  when  the  charge  exploded  and  she  was  shot  through 
the  head  and  killed.  He  immediately  ran  into  an  adjacent  room, 
wh^re  his  mother  was  lying  in  bed  sick,  and  told  her  he  had  shot  the 
deceased.  His  mother  directed  him  to  return  to  the  store  and  bring 
deceased  into  her  room,  saying  she  might  not  be  dead ;  he  went  into 
the  store  and  immediately  returned  screaming  and  wringing  his 
hands,  and  said  she  was  dead,  and  that  he  would  not  have  done  it 
for  the  world. 

The  deceased  was  employed  to  wait  upon  the  mother  of  the  ap- 
pellant, and  came  to  the  house  for  that  purpose  on  the  morning  of 
the  day  on  which  the  shooting  occurred.  She  and  he  were  near  the 
same  age,  and  the  evidence  not  only  failed  to  disclose  any  unkind 
feeling  between  them,  but  conduced  to  show  they  were  on  the  most 
friendly  terms  with  each  other.  Upon  evidence  strongly  conducing 
to  establish  these  facts,  and  without  any  evidence  whatever  tending 
to  show  malice  or  an  intention  to  harm  the  deceased,  except  the  sin- 
gle fact  that  he  shot  her,  he  was,  under  instructions  of  the  court, 
found  guilty  of  manslaughter  and  sentenced  three  years'  service  in 
the  penitentiary. 

The  court  instructed  the  jury  that,  although  they  might  believe 
from  the  evidence  that  the  defendant  thought  the  pistol  was  un- 
loaded, and  that  he  had  no  intention  to  kill  deceased,  yet,  if  they  be- 
lieved from  the  evidence,  to  the  exclusion  of  a  reasonable  doubt,  that 
defendant,  without  using  the  means  and  care  of  a  prudent  man  to 
ascertain  whether  or  not  the  pistol  was  loaded,  heedlessly  and  in- 
cautiously engaged  in  an  effort  to  entertain  himself  by  snapping  the 
pistol  at  said  Mary  J.  Martin,  and  in  doing  so  the  pistol  was  dis- 
charged and  killed  the  deceased,  though  by  accident,  they  ought  to 
find  him  guilty  of  manslaughter  and  fix  his  punishment,  which  is  by 


766  Kentucky  Opinions. 

confinement  in  the  penitentiary  not  less  than  two  nor  more  than 
twenty-one  years. 

The  punishment  indicated  is  that  denounced  by  the  statute  against 
voluntary  manslaughter.  Sec.  i,  Art.  4,  Chap.  29,  Gen.  Stat.  The 
appellant  asked  the  court  to  instruct  the  jury  in  substance  that  if 
they  believed  that  he  and  the  deceased  were  upon  friendly  terms, 
and  he  had  used  such  diligence  as  an  ordinarily  prudent  person  would 
have  deemed  necessary  to  satisfy  himself  that  the  pistol  was  not 
loaded,  and  did  in  fact  believe  it  was  not  loaded,  and  that  in  snap- 
ping it  at  the  deceased  he  had  no  intention  or  expectation  to  do  in- 
jury to  her,  they  should  find  him  not  guilty.  It  seems  to  us  that  the 
instruction  should  have  been  given  as  asked.  Before  a  man  deals 
with  a  gun  or  pistol  as  if  it  were  not  charged,  it  is  incumbent  upon 
him  to  ascertain  whether  it  is  so  or  not,  and  if  he  does  not  use  rea- 
sonable caution  in  this  respect,  and  afterward,  upon  pulling  the 
trigger,  it  unexpectedly  explodes  and  kills  a  person,  it  will  be  man- 
slaughter. 2  Archabold's  Cr.  PL  783.  Mr.  Justice  Foster  said  the 
law  did  not  require  the  utmost  caution  that  could  be  used,  but  that  it 
was  sufficient  that  a  reasonable  precaution,  such  as  is  usual  in  like 
cases,  should  be  taken ;  and  he  states  a  case,  cited  in  note  3,  p.  784, 
vol.  2,  Archabold's  Cr.  PI.,  Waterman's  ed.  i860,  in  which  he  ruled 
that  a  homicide,  under  circumstances  strikingly  similar  to  the  cir- 
cumstances of  this  case,  was  misadventure  and  not  manslaughter. 
That  case  fully  sustains  the  principle  embraced  in  the  instruction 
asked  for,  and  the  court  erred  in  refusing  that  instruction.  Judg- 
ment reversed  and  cause  remanded  for  a  new  trial  upon  principles 
not  inconsistent  with  this  opinion. 

John  Dishman,  for  appellant,    L.  E.  Moss,  for  appellee. 


John  T.  Ratcliffe  v,  Susan  McGrewder. 

Promissory  Note — Husband  and  Wife. 

A  debt  contracted  before  the  marriage  between  the  parties  is  ex- 
tinguished by  the  marriage. 

Divorce. 

Where  a  debt  between  the  parties  has  been  satisiled  by  their  mar- 
riage it  cannot  be  restored  to  the  wife  when  a  divorce  is  granted  to 
her. 


John  Gorman  v,  Sarah  L.  Gorman.  767 

APPEAL  FROM  CARTER  CIRCUIT  COURT. 

October  10»  1876. 

Opinion  by  Judge  Lindsay  : 

The  debt,  for  which  the  note  was  given,  was  contracted  before  the 
marriage  between  the  parties.  The  marriage  extinguished  it.  It 
was  not  like  a  debt  due  to  the  wife  from  a  third  person,  which  the 
husband  was  bound  to  reduce  to  possession  in  order  to  perfect  his 
title.  After  the  marriage  the  debt  had  no  existence.  It  was  in  law 
satisfied.  As  it  did  not  exist  it  could  not  be  restored  to  the  wife  when 
the  divorce  was  granted.  Neither  could  the  judgment  of  divorce  re- 
vive the  liability  of  the  husband  to  his  quondam  wife. 

Upon  the  statements  of  the  appellee,  her  petition  should  have  been 
dismissed.  Judgment  reversed  and  cause  remanded  for  a  judgment 
conforming  to  this  opinion. 

/.  &  /.  W.  Rodman,  for  appellant,    J.  L.  Scott,  for  appellee. 


John  Gorman  v,  Sarah  L. -Gorman. 

Dower — Fixing  Value  of  Dower. 

Where  the  widow  has  a  dower  interest  in  a  house  and  lot  which 
not  being  susceptible  of  being  partitioned  has  to  be  sold,  her  interest 
shifts  to  the  proceeds  of  sale  and  it  is  error  for  the  court  to  fix  the 
value  of  her  interest  before  sale. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

October  10,  1876. 

Opinion  by  Judge  Pryor: 

The  appellee  has  asked  the  chancellor  to  sell  the  house  and  lot,  for 
the  reason  that  to  allot  her  dower  by  a  division  of  the  property  would 
impair  its  value.  The  chancellor  granted  the  prayer  of  the  petition, 
but  undertook  to  fix  the  value  of  the  dower  before  the  property  was 
sold.  This  was  error.  She  was  entitled  to  her  dower  out  of  the  pro- 
ceeds of  sale,  and  the  amount  the  house  and  lot  sold  for  must  be  re- 
garded as  its  value  for  the  purposes  of  the  action. 

The  judgment  is  reversed  with  directions  to  the  court  below  to 
give  the  widow  the  value  of  her  dower  in  money,  estimating  the  value 
of  the  property  at  the  price  for  which  it  was  sold.    In  rendering  the 


768  Kentucky  Opinions. 

former  opinion  affirming  the  case,  the  attention  of  the  court  was  not 
called  to  this  question. 

Russell  &  Helm,  for  Appellant. 

/.  C.  Walker,  M.  Mundy,  for  appellee. 


Mary  F.  Higgins  v.  Matilda  A.  Powell. 

Wills— Subscribing  to  Will. 

A  will  must  be  subscribed  by  the  testator  at  the  close  of  the  writ- 
ing and  is  invalid  where  a  vacant  page  of  paper  or  more  is  left 
above  subscription,  but  a  will  signed  at  the  close  but  in  which  a 
blank  page  or  a  large  part  thereof  is  left  in  the  middle  of  the  instru- 
ment is  prima  facie  valid. 

APPEAL  PROM  HENDERSON  CIRCUIT  COURT. 

October  13,  1876. 

Opinion  by  Judge  Cofer: 

In  the  case  of  S onward  v.  Seward,  i  Duv.  126,  it  appeared  that  the 
paper  offered  for  probate  as  a  will  consisted  of  an  ordinary  sheet  of 
paper,  the  writing  on  which  occupied  the  first,  and  a  little  over  half 
of  the  second  page,  and  was  signed  at  the  close  thereof  by  the  tes- 
tator. The  names  of  the  subscribing  witnesses  were  signed  on  the 
fourth  or  last  page,  and  were  separate  from  the  close  of  the  writing, 
and  the  signature  of  the  testator,  by  nearly  two  blank  pages,  and  it 
was  held  that  that  was  not  a  good  attestation,  because  the  statute  re- 
quired the  witnesses  to  ^'subscribe  the  will  with  their  names."  The 
court  held  that  to  subscribe  a  writing  with  the  name  of  a  party  or 
witness,  was  to  sign  the  name  at  the  close  of  the  writing,  and  that  a 
name  separated  from  the  end  of  the  writing  by  nearly  two  blank 
pages  was  not  subscribed  to  the  writing,  and  therefore  that  Soward's 
will  was  ill  executed,  and  was  invalid. 

In  this  case  the  will  is  written  on  an  ordinary  sheet  of  foolscap 
paper,  the  writing  being  on  the  first  and  third  pages,  leaving  the 
second  page  blank,  and  signed  at  the  end  thereof  by  the  testator  and 
witnessed  by  the  names  of  two  witnesses  following  immediately  after 
the  signature  of  the  testator. 

The  statute  requires  the  name  of  the  testator  to  be  subscribed  to 
the  will,  and  in  the  case  supra  it  was  held  that  that  was  equivalent  to 
requiring  his  name  to  be  signed  at  the  close  of  the  writing,  and  that 


Mary  F.  Higgins  v.  Matilda  A.  Powell.  769 

as  the  statute  required  the  names  of  the  witnesses  to  be  subscribed,  it 
must  be  held  to  require  their  names  also  to  be  at  the  close  of  the  will, 
and  because  that  was  not  done  the  will  was  rejected.  In  this  case  the 
signatures  of  the  testator  and  witnesses  are  at  the  close  of  the  writ- 
ing, and  in  that  respect  there  is  a  literal  compliance  with  the  law. 

But  it  is  contended  that  the  object  in  requiringi  the  names  of  the 
testator  and  witnesses  to  be  subscribed  at  the  close  of  the  will  was  to 
prevent  frauds,  and  that  to  leave  blank  pages,  anywhere  between  the 
beginning  and  close  of  a  will  will  leave  open  the  same  door  for  fraud 
which  the  statute  was  enacted  to  close,  and  that  upon  the  commonly 
recognized  canon  for  the  construction  of  statutes  of  the  nature  of 
that  under  consideration,  that  "A  thing  which  is  within  the  intention 
of  the  makers  of  the  statute  is  as  much  within  the  statute  as  if  it  were 
within  the  letter,"  the  will  in  contest  should  be  held  to  be  invalid. 

There  is  force  in  the  argument,  but  when  the  letter  of  the  statute 
has  been  complied  with  in  a  case  like  this,  we  incline  to  the  opinion 
that  the  safer  and  more  reasonable  rule  is  to  hold  that,  prima  facie, 
the  will  is  valid,  and  especially  so  when  upon  an  inspection  of  the 
paper  and  writing  it  is  plain  that  there  not  only  has  not  been  any  ad- 
ditions to  the  will,  but  could  not  have  been  any  which  could  have  es- 
caped detection. 

The  rule  contended  for  does  not  seem  to  us  to  be  necessary  in  or- 
der to  guard  against  the  mischief  which  led  to  the  passage  of  the 
statute.  It  can  hardly  happen  that  fraudulent  additions  can  be  made 
upon  blank  pages  in  the  body  of  a  will  without  easy  detection,  and  it 
would  be  going  a  great  way  to  assume,  in  the  first  place,  that  such 
blank  pages  are  equally  a  mischief  with  that  intended  to  be  remedied 
by  requiring  the  testator  and  witnesses  to  sign  their  names  at  the 
close  of  the  will,  and  then  to  hold  by  construction  that  the  assumed 
mischief,  of  the  existence  of  which  the  statute  gives  no  intimation, 
should  invalidate  a  will  executed  in  all  respects  according  to  the  letter 
of  the  law.  When  there  has  been  a  compliance  with  the  letter  of  the 
statute,  we  think  the  safer  rule  is  to  leave  the  question  of  alterations 
or  additions  to  be  settled  as  a  question  of  fact,  and  not  to  preclude  all 
such  inquiry  by  an  arbitrary  rule  of  law,  and  especially  when  such  a 
rule  is  to  be  established  by  a  doubtful  judicial  assumption  that  such 
was  the  intention  of  the  legislature. 

Judgment  affirmed, 

H.  F,  Turner,  for  appellant.     Clay  &  Coleman,  for  appellee. 


49 


^^o  Kentucky  Opinions. 

N.  B.  BoRTMAN  V,  James  Giles. 

Sale  of  Real  Estate^Possession — Estoppel. 

One  who  secures  and  holds  possession  of  land  under  a  parol  con- 
tract to  purchase,  while  so  in  possession  is  estopped  to  deny  the  title 
of  one  who  thus  contracts  to  sell  to  him  and  cannot  set  up  a  title 
acquired  by  him  while  so  in  possession. 

APPEAL  FROM  ADAIR  CIRCUIT  COURT. 

October  14,  1876. 

Opinion  by  Judge  Cofer: 

The  evidence  that  the  appellee  took  possession  of  the  land  in  con- 
test under  the  parol  contract  to  purchase  it  of  the  appellant  is  con- 
clusive and  uncontradicted,  and  it  also  appeared  in  the  evidence  that 
he  has  continued  in  possession  ever  since.  Having  entered  under  the 
appellant,  the  appellee  is  estopped  to  deny  his  title,  and  cannot  set  up 
a  title  acquired  by  him  while  so  in  possession,  but  must  surrender  his 
possession  and  divest  himself  of  the  advantage  gained  by  the  posses- 
sion received  from  the  appellant,  and  when  he  does  so,  and  the  par- 
ties are  in  statu  quo,  he  may  in  a  suit  test  the  relative  strength  of  the 
title  of  himself  and  the  appellant. 

Wherefore  the  judgment  is  reversed,  and  the  cause  is  remanded 
with  directions  to  render  judgment  for  the  appellant,  and  to  compel 
the  surrender  of  the  possession  to  him. 

Winfrey  &  Winfrey ^  for  appellant,    Stewart  &  Nell,  for  appellee. 


Reuben  Gill  v.  Milton  Farmer. 

Sheriff — Service  of  Process — ^Judgment. 

A  sheriff  or  his  deputy  has  no  power  to  serve  civil  process  out  of  his 
county  and  when  he  does  so  his  return  is  not  proof  of  service. 

Judgment. 

A  Judgment  entered  without  the  seryice  of  process,  where  there  is 
no  appearance  by  the  defendant  to  the  action,  is  void. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

October  18,  1876. 

Opinion  by  Judge  Pryor  : 

The  deputy  sheriff  of  Daviess  county  had  no  power  to  serve  the 


McKay,  et  al.,  v.  J.  W.  Sutherland.  771 

summons  in  McLean  county.  His  return  is  "executed  on  Reuben 
Gill  in  McLean  county,  April  29,  1875,  by  delivering  him  a  true  copy 
of  the  within,  which  I  accept,"  signed  Reuben  Gill.  The  deputy 
signed  his  name  in  his  official  capacity  at  the  place  on  the  paper 
where  it  is  usual  to  attest  such  papers. 

The  Code  requires  that  service  may  be  acknowledged  by  the  de- 
fendant by  an  endorsement  on  the  summons,  signed  and  dated  by  him 
and  attested  by  a  return.  The  affidavit  of  the  witness  should  be  proof 
of  service,  etc.  There  is  no  proof  of  the  service  or  acknowledgment 
in  this  case,  nor  is  there  any  attestation  to  the  act  of  the  defendant  in 
signing  it.  In  New  York,  under  a  similar  provision,  where  the  sher- 
iff served  the  summons  out  of  the  county,  it  is  said,  "The  proof  of 
service  must  be  by  affidavit ;  his  certificate  of  service  is  of  no  avail." 
There  is  no  proof  of  service  whatever  in  this  case,  and  the  judgment 
was  therefore  void.  If  the  last  judgment  had  been  proper,  we  see  no 
reason  why  the  commissioner  should  not  sell  to  satisfy  both  judg- 
ments, as  the  cases  were  consolidated.  The  judgment  is  reverse  A 
and  cause  remanded  for  further  proceedings  consistent  with  this 
opinion. 

G.  W,  Ray,  for  appellant.    Owen  &  Ellis,  for  appellee. 


McKay,  et  al.,  v.  J.  W.  Sutherland. 

Sale  of  Real  Estate  by  Parol — ^Possession — Lien  for  Purchase  Money. 

A  purchaser  of  real  estate  by  parol  who  has  been  put  into  poBsession 
thereunder  has  a  Hen  for  the  purchase  price  on  the  premises,  on  a 
rescission 'of  his  contract  not  only  as  against  his  yendor  but  against 
the  claim  of  a  subsequent  purchaser  with  notice  of  his  prior  purchase. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

October  18,  1876. 
Opinion  by  Judge  Elliott: 

The  appellee,  Sutherland,  charges  in  his  petition  in  this  action  that 
he  bought  a  half-acre  lot  of  land  of  appellant  and  paid  him  for  it ; 
that  the  contract  was  verbal ;  that  appellant  put  him  in  possession  of 
the  lot,  but  afterwards  refused  to  convey  it  to  him,  and  sold  the  lot 
to  appellant,  Givens ;  that  the  lot  was  worth  $125,  and  that  appellee 
had  given  said  sum  for  it. 

The  appellants  failed   to   answer,   and   judgment   was   rendered 


JJ2  Kentucky  Opinions. 

against  appellant,  U.  McKay,  by  which  said  contract  was  declared 
not  to  be  enforcible,  and  a  judgment  rendered  for  plaintiff  for  $125 
and  costs ;  and  it  was  further  adjudged  that  as  the  adjudged  sum  was 
the  purchase  price  of  a  lot  of  land,  and  as  appellant  could  not  enforce 
his  contract  for  a  conveyance  he  had  an  enforcible  lien  upon  said 
land  for  the  purchase  price  thereof,  which  lien  was  enforced  and  the 
land  ordered  to  be  sold  by  the  judgment. 

After  judgment  was  rendered,  the  appellant,  McKay,  offered  to 
file  an  answer ;  but  as  he  failed  to  show  why  he  did  not  answer  be- 
fore judgment,  we  think  the  court  did  not  abuse  a  sound  discretion 
in  overruling  his  motion.  The  petition  states  that  appellant,  Givens, 
had  notice  before  his  purchase  of  the  lot,  that  appellee  had  bought  by 
parol  contract  and  paid  for  it,  and  that  he  had  been  put  in  possession. 

A  purchaser  by  parol,  who  has  paid  the  purchase  money  and  been 
put  in  possession  of  the  purchased  premises,  has  a  lien  for  the  pur- 
chase price  on  the  premises  on  a  rescission  of  his  contract,  not  only 
as  against  his  vendor,  but  against  the  claim  of  any  subsequent  pur- 
chaser, with  notice  of  his  prior  purchase,  and  as  this  was  all  that  was 
done  in  this  case,  said  judgment  must  be  affirmed. 

W.  N.  Sweeney,  for  appellants.     Owen  &  Ellis,  for  appellee. 


Royal  Ins.  Co.  v.  Frank  Waters,  et  al. 

Insurance  Policy — ^Arbitration. 

A  written  stipulation  in  an  Insurance  policy  that  where  a  di£fe^ 
ence  shall  arise  relative  to  the  amount  of  the  loss  and  there  Is  no  fraud 
suspected  such  difference  shall  he  submitted  to  arbitration,  does  not 
require  that  any  other  question  concerning  recovery  on  the  policy 
shall  be  submitted  to  arbitration. 

Opinion  by  Judge  Cofer  : 

The  express  stipulation  is,  "If  any  difference  shall  arise  with  re- 
spect to  the  amount  of  any  claim  for  loss  or  damage  by  fire,  and  no 
fraud  suspected,  such  difference  shall  be  submitted  to  arbitrators," 
etc.  This  manifestly  contemplated  cases  in  which  the  only  matter  of 
dispute  was  "with  respect  to  the  amount  of  the  loss,"  and  to  apply 
it  in  a  case  like  this,  where  the  company  denies  that  those  claiming 
under  the  policy  have  any  interest  in  the  subject,  and  denies  their 


Royal  Ins.  Co.  v,  Frank  Waters,  et  al.  773 

right  to  receive  compensation  for  the  loss  sustained  by  the  destruc- 
tion of  the  property  insured,  would  be  unreasonable. 

The  first  question  which  arises  when  a  claim  is  made  on  account 
of  a  loss  is  whether  the  person  claiming  is  the  person  insured,  and 
when  that  is  disputed  it  would  be  most  unreasonable  to  suppose  that 
the  parties  intended,  by  the  13th  condition,  to  provide  that  the  claim- 
ant should  enter  into  an  arbitration  while  his  right  to  an)rthing  was 
disputed,  and  take  the  risk  of  being  compelled  afterward  to  bring 
suit  in  order  to  establish  his  right  to  the  sum  awarded  by  the  arbi- 
tration. The  parties  cannot  have  intended,  when  they  entered  into 
the  agreement,  that  it  should  apply  in  such  a  case. 

Counsel  conceded  that  the  question,  whether  the  appellees  were  the 
heirs  of  Thomas  H.  Waters  and  owners  of  the  property,  was  pre- 
liminary to  a  final  settlement  and  payment,  because  of  the  necessity 
for  a  good  receipt.  But  they  say,  "There  has  been  no  controversy 
on  this  matter  prior  to  the  suit,  and  the  plaintiffs  had  no  such  excuse 
for  violating  their  contract  and  bringing  this  suit" ;  and  again  they 
say,  "It  was  not  a  matter  about  which  there  either  had  been,  or 
ought  to  have  been  any  dispute" ;  and  again  "The  entire  correspond- 
ence between  the  parties  is  in  the  record,  and  the  court  cannot  fail  to 
see  that  the  one  point  in  controversy  was  the  amount  of  the  loss." 

We  must  look  to  the  pleadings,  and  not  to  the  evidence,  to  ascer- 
tain the  matters  in  dispute,  and  we  must  assume  that  when  the  ap- 
pellant filed  its  answer  it  did  not  deny  facts  it  had  previously  ad- 
mitted, but  that  it  said  then  just  what  it  had  previously  said,  and 
what  it  would  have  said  upon  a  proposition  to  refer,  or  if  not,  upon 
being  applied  to  to  pay  the  award,  viz. :  that  it  had  "no  knowledge  or 
information  sufficient  to  form  a  belief  that  the  plaintiffs  are  the  heirs 
of  Thomas  H.  Waters,  or  that  C.  V.  Waters  is  the  executor  of 
Thomas  H.  Waters,  deceased,  *  *  *  or  the  interest  of  plain- 
tiffs or  any  of  them,  under  any  such  will." 

It  may  be  that  this  was  not  a  matter  about  which  there  ought  to 
have  been  any  dispute,  but  we  are  forced  to  assume  that  the  appellant 
intended  to  make  dispute  about  it;  and,  if  its  answer  was  true,  it 
ought  to  have  made  dispute,  for  it  did  not  know  that  the  appellees 
were  the  persons  entitled  to  receive  whatever  it  was  bound  to  pay. 

If  appellant's  counsel  are  right  in  their  conclusion  as  to  the  legal 
effect  of  the  13th  clause  of  conditions  indorsed  on  the  policy  (a  ques- 
tion on  which  we  express  no  opinion),  the  petition  was  bad,  and  the 
demurrer  should  have  been  sustained ;  but  when  the  answer  came, 
showing  that  the  company  denied  that  the  plaintiffs  had  any  interest 


774  Kentucky  Opinions. 

in  the  policy,  and  thereby  showed  that  the  amount  of  loss  was  not  the 
only  question  in  issue,  it  showed  that  they  were  not  bound  to  oflFer  to 
submit  to  arbitrators,  and  therefore  that  they  had  a  cause  of  action 
in  the  petition  aided  by  the  answer ;  and  as  the  clause  for  arbitration 
could  not,  as  the  case  then  stood,  interpose  an  obstacle  to  the  prosecu- 
tion of  the  suit,  the  demurrer  to  the  third  paragraph  of  the  answer 
was  properly  sustained. 
Petition  overruled. 

Brcckenridge  &  Shelby,  for  appellant. 
Frank  Waters,  for  appellees. 


W.  E.  Mitchell  v.  M.  A.  Bailey  &  Co. 

Contracts  of  Married  Women. 

A  contract  of  a  married  woman,  not  entitled  to  transact  a  separate 
business,  is  void,  but  wlien  she  has  parted  with  money  or  property  by 
reason  of  such  contract,  her  husband  must  Join  her  in  an  action  to 
recover. 

Disability  of  Wife. 

A  married  woman,  who  has  not  been  empowered  to  act  as  a  feme 
sole,  has  no  power  to  form  a  partnership  with  others. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

October  19,  1876. 

Opinion  by  Judge  Pryor: 

The  petition  being  defective,  it  is  not  necessary  to  notice  the  vari- 
ous alleged  errors  relied  on  for  a  reversal  of  the  judgment.  It  ap- 
pears on  the  face  of  the  petition  that  the  party,  with  whom  the  con- 
tract was  made,  was  at  the  time  of  the  institution  of  the  action  a 
married  woman.  She  declares  against  the  appellant  as  the  wife  of 
Bailey.  The  contract  is  signed  by  Mr.  M.  A.  Bailey,  and,  she  being 
a  feme  covert,  the  right  of  action,  if  any,  was  in  the  husband.  A 
contract  made  by  a  married  woman  is  absolutely  void,  but  when  she 
has  parted  with  money  or  property  by  reason  of  such  a  contract  the 
husband  must  be  a  party  to  the  action.  The  court  did  not  judicially 
know  that  she  had  been  empowered  to  act  as  a  feme  sole ;  and  when 
pleading  the  coverture  in  abatement  the  appellees  still  had  the  right 
to  amend  their  petition.  This  they  failed  to  do,  but  filed  what  is 
called  a  reply,  to  which  no  response  was  necessary,  nor  was  it  proper 


Susan  B.  Settle's  Adm'r  v.  Jerry  S.  Gordon.  775 

to  present  such  a  traverse  of  the  plea  in  abatement. 

The  issue  having  been  made  by  the  plea,  and  the  burden  being  on 
the  appellee  to  show  that  the  disability  of  the  wife  had  been  removed, 
there  is  an  entire  absence  of  proof  showing  that  she  had  been  declared 
a  feme  sole  with  the  right  to  sue.  So  in  either  event  the  judgment 
must  be  reversed.  The  demurrer,  however,  should  have  been  sus- 
tained to  the  petition.  It  there  appeared  that  the  plaintiflF  was  a  mar- 
ried woman.  She  had  no  right  to  form  a  partnership  with  others. 
Her  contract  was  void,  not  only  with  the  appellant,  but  with  those  to 
whom  she  transferred  the  claim. 

The  judgment  is  reversed  and  cause  remanded  with  directions  to 
permit  the  appellees  to  amend  their  petition,  and  for  further  proceed- 
ings consistent  with  this  opinion. 

James  Weir  &  Son,  for  appellant.     Owen  &  Ellis,  for  appellees. 


Susan  B.  Settle's  Adm'r  v,  Jerry  S.  Gordon. 

Appeal — Interlocutory  Order. 

An  order  of  the  court  directing  a  party  to  pay  money  into  court  is 
an  interlocutory  order  and  cannot  be  appealed  from,  but  an  order 
directing  the  money  to  be  paid  over  to  one  of  the  parties  is  a  final 
order  and  may  be  appealed  from. 

APPEAL  FROM  BARREN  CIRCUIT  COURT. 

October  19,  1876. 

Opinion  by  Judge  Cofer  : 

The  order  directing  the  appellant  to  pay  into  court  the  amount  of 
the  appellee's  claim  was  only  interlocutory,  but  the  order  directing  it 
to  be  paid  over  to  him  was  final  and  might  have  been  appealed  from 
and  superseded.  It  decided  the  rights  of  the  parties  as  to  that  fund, 
and  the  court  had  no  power,  after  the  term,  to  set  aside  the  order,  or 
to  require  the  appellee  to  pay  back  the  money,  and  the  rule  was  prop- 
erly discharged. 

Sec.  42,  Art.  2,  Chap.  39,  Gen.  Stat.,  relates  to  voluntary  payments, 
and  not  to  such  as  are  made  under  the  judgment  of  a  court.  The  ap- 
pellant did  not  pay  because  he  supposed  that  the  estate  was  solvent, 
or  on  account  of  any  mistake  on  his  part,  but  because  the  court  so 
ordered.  There  is  no  appeal  from  the  orders  requiring  the  money  to 
be  paid  to  the  clerk  and  requiring  him  to  pay  it  to  the  appellee,  and 


yy(>  Kentucky  Opinions. 

as  long  as  those  orders  stand  unreversed,  the  order  appealed  from 
must  be  held  correct. 
Judgment  atlirmed. 

P.  H,  Leslie,  for  appellant.    /.  P,  Garnett,  for  appellee. 


James  Gate  v.  James  A.  Rouse. 

Bankruptcy — ^Appeals  by  Bankrupts. 

After  one  has  been  declared  a  bankrupt,  he  cannot  prosecute  an 
appeal  from  a  judgment  against  him  in  the  circuit  court  The  as- 
signee in  bankruptcy  in  such  a  case  is  the  real  party  in  interest. 

Discharge  in  Bankruptcy. 

A  discharge  in  bankruptcy  relieves  a  debtor  against  all  claims  that 
might  have  been  proved  against  his  estate  in  the  bankrupt  proceed- 
ing, but  to  be  available  the  discharge  must  be  pleaded. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

October  19,  1876. 
Opinion  by  Judge  Lindsay: 

After  Cate  had  filed  his  petition  in  the  bankrupt  court,  and  at  a 
time  when  he  had  no  personal  interest  in  the  matter,  he  prosecuted 
to  this  court  an  appeal  from  the  judgment  against  him  in  the  Daviess 
circuit  court  in  favor  of  Rouse.  He  did  not  make  his  assignee,  who, 
as  the  representative  of  his  creditors,  was  the  real  party  in  interest, 
a  party  appellant,  nor  suggest  to  this  court  that  the  appeal  was  prose- 
cuted in  behalf,  of  his  assignee.  He  appeared  in  this  court  as  a  party 
litigating  for  himself.  He  succeeded  in  reversing  a  judgment, 
against  which  the  proceeding  in  bankruptcy  would  have  protected 
him. 

The  judgment  of  this  court  was  his  judgment.  The  mandate  issued 
and  sent  to  the  court  below  was  his  mandate.  The  judgment  he  is 
now  seeking  to  enjoin  was  and  is  the  direct  and  necessary  result  of 
his  voluntary  action  in  this  court.  Said  judgment  was  reversed  sub- 
sequent to  the  date  of  his  application  for  a  discharge  in  bankruptcy, 
and  is  not  affected  by  such  discharge. 

It  is  true  that  a  discharge  in  bankruptcy  in  general  relieves  a  debtor 
against  all  claims  that  might  have  been  proved  against  his  estate  in 
the  bankrupt  proceedings.  But  it  is  also  true  that  to  make  a  dis- 
charge available  it  must  be  pleaded,  and  if,  as  in  this  case,  the  bank- 


H.  T.  Mattingly  v.  J.  O.  Mattingly.  yyy 

rupt  chooses  to  pursue  a  line  of  conduct  that  deprives  him  of  the 
right  and  power  to  plead  his  discharge,  he  must  submit  to  the  conse- 
quences. 

The  judgment  against  appellant  remains  unreversed.  The  ground 
upon  which  he  seeks  to  enjoin  its  enforcement  has  neither  arisen,  nor 
been  discovered  since  it  was  rendered.  There  is  no  reason  for  the 
interference  of  the  chancellor. 

Judgment  affirmed. 

W.  H,  Sweeney,  for  appellant. 

C.  S.  Walker,  G.  W.  Ray,  for  appellee. 


H.  T.  Mattingly  v.  J.  O.  Mattingly. 

Landlord's  Attachment. 

The  right  of  an  attachment  secured  by  a  landlord  against  his  tenant 
depends  on  whether  he  has  reasonable  grounds  to  believe  that  his 
debt  will  be  lost  unless  an  attachment  issues. 

Attachment. 

A  tenant  who  is  an  attachment  defendant  is  entitled  to  make  any 
defense  that  is  available  to  him  in  any  other  kind  of  an  action. 

APPEAL  PROM  DAVIESS  CIRCUIT  COURT. 

October  19,  1876. 

Opinion  by  Judge  Elliott  : 

The  judgment  in  this  cause  is  founded  on  an  attachment  sued  out 
by  appellee  for  rent.  By  Sec.  5,  Chap.  66,  p.  602,  Gen.  Stat.,  a  land- 
lord is  authorized,  if  his  rent  be  due  within  a  year  thereafter,  to  go 
before  the  proper  officer  of  the  county  in  which  the  rented  tenement 
lies  and  make  affidavit  "that  there  are  reasonable  grounds  for  belief, 
and  that  he  believes  that  unless  an  attachment  be  issued  he  will  lose 
his  rent,  and  having  executed  the  required  bond  an  attachment  shall 
issue  in  his  favor." 

The  right  to  the  attachment  depends  upon  the  reasonable  grounds 
of  belief  and  the  actual  belief  of  the  landlord  that  unless  he  is  aided 
by  this  process  of  attachment  he  will  lose  his  debt.  On  the  trial  of 
this  cause  the  defendant  set  up  a  counterclaim  for  some  $160.65, 
which  he  charged  he  had  paid  as  appellee's  surety.  This  was  a  good 
set-off  against  appellee's  claim,  and  should  have  been  allowed,  but 
was  rejected  by  the  court. 


778  Kentucky  Opinions. 

The  remedy  of  a  landlord  by  attachment  does  not  deprive  his  ten- 
ant of  any  defense  that  he  would  be  entitled  to  if  sued  in  any  other 
form  of  action.  But  we  are  of  opinion  that  the  appellee's  grounds  of 
belief  that  he  would  lose  his  debt  were  not  reasonable,  but  on  the 
contrary  were  unreasonable  and  cannot  be  sustained  by  this  court. 

The  evidence  conduces  strongly  to  the  conclusion  that  the  personal 
property  of  the  appellant  then  on  the  leased  premises  and  its  imme- 
diate vicinity,  including  his  crop  of  tobacco,  was  worth  from  four  to 
seven  hundred  dollars,  and  the  proof  is  positive  that  he  sold  his  to- 
bacco which  he  owned  when  the  attachment  was  sued  out  for  $225.00. 

If  this  attachment  can  be  sustained,  then  any  tenant  can  (as  was 
done  in  this  case)  be  deprived  of  the  benefit  of  his  contract  to  pay  at 
the  end  of  the  year  by  the  extraordinary  remedy  of  attachment,  and 
be  compelled  to  pay,  by  said  sacrifice  of  his  property,  a  debt  before 
it  is  due  that  he  is  amply  able  to  pay  when  due,  and  when  he  has 
property  subject  to  levy,  enough  to  pay  double  the  amount  of  his  rent 

We  cannot  sanction  a  judgment  sustaining  an  attachment  under 
circumstances  which  are  conclusive  that  the  appellee  by  the  least  in- 
quiry could  have  ascertained  that  his  tenant's  estate  was  ample  for 
the  payment  of  the  rent  due  on  the  rented  premises. 

The  judgment  was  for  $200.00,  when  by  the  covenant  sued  on  the 
defendant  was  only  bound  for  $195.00,  and  this  was  error.  Where- 
fore the  judgment  is  reversed  and  cause  remanded  with. directions  to 
quash  the  attachment  in  this  cause,  and  for  further  proceedings  con- 
sistent herewith. 

IV,  N.  Sweeney,  for  appellant,     Owen  &  Ellis,  for  appellee. 


Thomas  S.  Morgan  v.  Henry  Wood. 

Witnesses — Instruction. 

A  party  producing  a  witness  is  not  allowed  to  impeach  him  by  evi- 
dence of  bad  character  unless  in  a  case  where  it  was  indispensable 
that  the  party  should  produce  him,  but  he  may  contradict  him  by 
other  evidence  and  show  that  he  has  made  statements  different  from 
his  present  testimony. 

Credibility. 

It  is  error  for  the  court  to  charge  the  Jury  that  they  should  dis- 
credit such  witnesses  as  are  without  general  moral  character  as 
shown  in  the  evidence,  except  where  they  are  corroborated  by  other 
evidence. 


S.  H.  Sandifer  V,  John  H.  Williams.  779 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

October  20,  1876. 

Opinion  by  Judge  Lindsay  : 

The  party  producing  a  witness  is  not  allowed  to  impeach  his  credit 
by  evidence  of  bad  character,  unless  it  is  in  a  case  in  which  it  was 
indispensable  that  the  party  should  produce  him ;  but  he  may  contra- 
dict him  by  other  evidence,  and  by  showing  that  he  had  made  state- 
ments different  from  his  present  testimony.  Sec.  660,  Civil  Code  of 
Practice. 

The  appellee  produced  as  a  witness  his  adversary,  Morgan,  to 
prove  that  he  had  written  a  letter  relied  on  as  evidence  in  this  case. 
It  was  not  indispensably  necessary,  nor  even  apparently  necessary 
that  he  should  have  been  produced,  for  that  or  any  other  purpose. 
Yet  after  he  had  testified  in  his  own  behalf,  the  appellee  was  allowed, 
in  the  face  of  the  statute,  and  over  appellant's  objections,  to  attack 
his  character.    This  was  manifest  error. 

On  appellee's  motion  the  court  instructed  the  jury  that  they  were 
the  judge  of  the  credit  to  be  pven  the  several  witnesses,  and  that  they 
should  discredit  such  as  were  without  general  moral  character,  as 
shown  in  the  evidence,  except  so  far  as  such  witnesses  may  stand 
corroborated  by  other  evidence.  This  is  not  the  law;  the  jury  may, 
but  is  not  obliged  to,  reject  the  testimony  of  a  witness  of  bad  moral 
character.  The  jurors  may  believe  the  uncorroborated  statements  of 
such  a  witness,  and  if  they  do,  they  have  the  right  to  act  upon  that 
belief,  and  the  court  has  no  power  to  take  that  right  away  from  them. 

For  these  two  errors  a  new  trial  should  have  been  granted.  Judg- 
ment reversed  and  cause  remanded  for  a  new  trial  upon  principles  not 
inconsistent  with  this  opinion. 

L.  P.  Little,  John  H,  McHenry,  for  appellant. 
Owen  &  Ellis,  for  appellee. 


S.  H.  Sandifer  v.  John  H.  Williams. 

Warranty — Eviction — Recovery. 

A  grantee  under  a  warranty  can  only  recover  where  he  has  been 
evicted  and  not  then  beyond  the  amount  paid  by  him  to  secure  good 
title. 


780  Kentucky  Opinions. 

APPEAL  FROM  DAVIBSS  CIRCUIT  COURT. 

October  20,  1876. 

Opinion  by  Judge  Cofer  : 

The  cross-petition  is  fatally  defective.  The  allegation  that  the  ap- 
pellee was  compelled  to  repurchase  from  McCain  is  too  vague  and 
uncertain.  It  is  not  pretended  that  the  appellee  had  been  evicted  by  a 
paramount  title,  nor  that  he  appellant  had  no  title.  One  or  the  other 
was  certainly  necessary  in  order  to  show  a  right  of  action,  even  if  the 
title  was  warranted  by  the  appellant.  But  it  is  not  alleged  that  he 
warranted  the  title,  and  unless  he  did  so  he  is  not  liable,  unless  he  had 
no  title  at  all,  which  is  not  claimed. 

The  appellee  took  possession  under  the  appellant,  and  even  if  the 
appellant  warranted  the  title,  the  appellee,  not  having  been  evicted, 
could  not  recover  beyond  the  amount  paid  for  the  repurchase  of  the 
lease.  He  does  not  state  how  much  he  paid  McCain,  nor,  indeed, 
that  he  paid  him  anything,  and  unless  he  did  he  has  no  right  to  re- 
cover back  any  part  of  the  purchase  money  paid  to  the  appellee. 

The  facts  stated  did  not  warrant  a  judgment  for  the  alleged  failure 
to  build  a  tobacco  barn.  The  contract  as  stated  was  to  build  a  to- 
bacco barn,  but  it  is  not  stated  that  any  particular  description  of  a 
barn  was  to  be  built,  nor  what  it  would  have  been  worth  to  build  such 
a  barn  as  was  contemplated  by  the  parties.  If  the  appellee  has  a  right 
to  recover  at  all,  he  is  not  entitled  to  what  it  cost  him  to  build  it,  but 
to  what  it  was  reasonably  worth. 

Judgment  reversed,  and  cause  remanded,  for  further  proceedings. 

L.  P,  Little,  for  appellant,    McFarland  &  Tharp,  for  appellee. 


Elizabeth  Smith,  et  al.,  v.  R.  C.  Eubank,  et  al. 

Insurance  Policy — Beneficiary — Creditors  of  Husband. 

Creditors  of  the  husband  have  no  cause  of  action  against  a  widow 
who  has  received  insurance  money  on  a  policy  made  payable  to  her, 
purchased  by  her  husband. 

APPEAL  FROM  ADAIR  CIRCUIT  COURT. 

October  23,  1876. 

Opinion  by  Judge  Elliott: 

H.  W.  Smith,  in  1869,  insured  his  life  for  the  benefit  of  appellants, 


T.  J.  Brent  v.  Peter  Sinville.  781 

his  wife  and  children,  in  the  sum  of  ten  thousand  dollars,  in  the 
Southern  Mutual  Life  Insurance  Co.  of  this  state. 

Smith  paid  the  calls  due  on  his  policy  up  to  his  death  in  1874.  In 
1875  R.  C.  Eubank,  one  of  the  appellees,  brought  suit,  by  which  he 
sought  to  reach  the  fund  received  by  Smith's  widow  and  heirs  by 
virtue  of  said  policy,  on  the  ground  that  said  policy  so  made  for  the 
benefit  of  Smith's  wife  and  children  was  a  fraud  on  his  creditors. 
Appellees'  debt  was  not  created  till  five  years  after  the  insurance  of 
Smith's  life  was  made  with  the  Southern  Mutual  Life  Insurance  Co., 
and  how  he  could  have  contemplated  a  fraud  on  said  appellees  with- 
out even  any  evidence  that  he  even  knew  or  ever  expected  to  deal 
with  them,  is  difficult  to  perceive. 

The  charter  authorized  the  insurance  as  made  by  Smith,  and  pro- 
tects the  beneficiaries  of  the  policy  against  creditors  of  the  assured, 
and  even  if  said  act  is  illegal  or  even  unconstitutional  as  to  Smith's 
creditors,  when  the  policy  was  executed,  we  are  of  opinion  that  ap- 
pellees are  in  no  condition  to  make  the  question,  as  the  beneficiaries 
of  the  polic>  have  a  better  title  to  the  money  received  thereon  than 
appellees. 

It  is  said  that  H.  W.  Smith  paid  one  call  on  this  policy  after  he  in- 
curred the  debt  to  appellees,  and  it  is  insisted  that  the  amount  of  said 
call  ought  to  be  held  liable  for  his  debt.  We  are  of  a  different 
opinion.  Smith  became  bound  for  said  call  in  1869,  long  before  he 
became  indebted  to  appellees,  and  paid  it  in  pursuance  of  his  contract. 
We  are  of  opinion  that  as  to  subsequent  creditors  of  Smith,  the  ap- 
pellants, the  widow  Smith  and  her  children,  are  to  be  considered  as 
the  absolute  owners  of  the  fund  paid  them  on  the  policy  in  dispute  in 
this  suit. 

Wherefore  the  judgment  of  the  lower  court  is  reversed  and  the 
cause  remanded  with  directions  to  dismiss  appellees'  suits  at  their 
cost. 

Russell  &  Averitt,  for  appellants. 
Baker  &  Hindman,  for  appellees. 


T.  J.  Brent  z\  Peter  Sinville. 


Liability  of  Indorser  on  Note — Release  of  Indorser  by  Delay. 

When  a  holder  of  a  note  obtains  judgment  against  the  principal 
and  delays  nearly  a  month  before  issuing  execution,  such  delay  unac- 
counted for,  will  release  one  who  has  assigned  the  note  to  the  plaintifP. 


782  Kentucky  Opinions. 

APPEAL  FROM  NICHOLAS  COUNTY  COURT. 

October  25,  1876. 

Opinion  by  Judge  Elliott  : 

By  this  suit  appellant  seeks  a  recovery  of  judgment  against  appellee 
on  his  obligation  of  assignment  to  him  of  a  note  on  R.  Cheatam. 

The  note  executed  by  Cheatam  to  appellee  was  due  January,  1872, 
and  was  assigned  to  appellant  by  appellee  in  July,  1872.  Appellant 
sued  Cheatam  and  obtained  judgment  at  the  October  tenn  of  the  cir- 
cuit court,  which  was  the  first  term  of  the  court  after  the  assignment 
of  the  note.  The  judgment  was  obtained  on  the  6th  day  of  Novem- 
ber, 1872,  and  no  execution  issued  on  the  judgment  till  the  loth  day 
of  December,  next  after  the  rendition  of  the  judgment.  This  delay 
of  nearly  one  month  after  appellant  could  have  had  execution  on  his 
judgment  is  unaccounted  for  in  any  way.  We  are  of  opinion  that  the 
delay  in  ordering  execution  on  said  judgment  after  its  rendition,  un- 
accounted for,  released  the  assignee  of  the  debt,  appellee,  Sinville, 
from  all  responsibility,  by  reason  of  his  assignment ;  and  as  the  lower 
court  so  decided,  said  judgment  is  hereby  affirmed. 

Hargis  &  Norrell,  for  appellant.    Ross  &  Kennedy,  for  appellee. 


Henry  Lieber,  et  al.,  v.  Henry  Cooper. 

Sale  of  Real  Estate — Lien  for  Purchase  Money — Notice. 

A  lien  for  purchase  money  of  real  estate  may  be  provided  for  in  the 
deed  and  when  such  a  deed  is  recorded  a  purchaser  is  bound  to  take 
notice  of  the  lien. 

APPEAL  FROM  MEADE  CIRCUIT  COURT. 

October  25,  1876. 

Opinion  by  Judge  Cofer: 

A  lien  is  expressly  retained  in  the  deed  from  Jenkins  to  Mrs. 
Wright  to  secure  the  payment  of  the  purchase  money,  and  unless  the 
notes  held  by  the  appellee  as  assignee  of  Jenkins  have  been  paid,  of 
which  there  is  now  no  evidence  in  the  record,  he  has  a  lien  on  the 
land  enforceable  against  Brandenburg,  even  though  he  be  a  purchaser 
for  value  without  actual  notice.  He  was  bound  to  take  notice  of  the 
lien  reserved  in  the  deed. 


Frank  Griffin's  Ex'r,  et  al.,  v.  George  H.  Barnes.      783 

But  we  are  of  the  opinion  that  the  appellee  has  no  lien  on  the  land 
to  secure  the  notes  on  King  assigned  to  him  by  Wright.  Mrs.  Wright 
and  her  husband  had  conveyed  the  land  to  Brandenburg  &  Lieber, 
and  of  course  she  could  not  assert  a  lien  against  her  vendees,  and  the 
appellee  can  be  in  no  better  attitude  in  this  respect  than  she  would  be 
in  were  she  suing  on  the  notes.  Whatever  claim  the  appellee  has  as 
to  those  notes  he  derived  from  her  and  her  husband,  and  any  defense 
against  her  is  good  against  him.  Having  sold  and  conveyed  the  land 
to  Brandenburg  &  Lieber,  she  could  not  have  a  claim  against  King 
for  the  purchase  money  he  agreed  to  pay  her,  and  could  not  reach 
the  land  through  him. 

The  appellee  has  a  judgment  in  personam  against  King,  but  that 
judgment  does  not  bind  Brandenburg  &  Lieber,  nor  their  vendee, 
Brandenburg,  nor  give  a  lien  on  the  land.  Nor  can  the  appellee 
reach  the  land  as  the  property  of  King  under  his  proceeding  on  the 
return  of  no  property.  King  had  no  property  in  the  land  at  the  in- 
stitution of  this  suit.  The  sale  to  him  was  void,  and  the  subsequent 
sale  and  conveyance  to  Brandenburg  &  Lieber  divested  Mrs.  Wright 
of  title  and  left  her  assignee  without  any  claim  whatever  upon  the 
land,  even  though  Brandenburg  &  Lieber  may  have  had  notice  of  the 
sale  to  King,  for,  that  sale  being  void,  Mrs.  Wright's  assignee  would 
not  have  a  lien  en  forcible  even  against  her.  She  could  not  incumber 
her  land  in  that  way. 

Judgment  reversed,  and  cause  remanded  with  directions  to  render 
judgment  for  the  appellee  to  sell  so  much  of  the  land  as  will  pay  the 
balance  due  on  the  notes  held  by  him  as  assignee  of  Jenkins,  and  to 
dismiss  the  residue  of  the  petition. 

Lewis  &  Fairleigh,  Edwards  &  Seyman,  for  appellants. 
A.  T.  Rankin,  for  appellee. 


Frank  Griffin's  Ex'r,  et  al.,  v.  George  H.  Barnes. 

Decedent's  Estate— Claims  for  Interest. 

No  Interest  accruing  after  his  death  will  be  allowed  against  dece- 
dent's estate  unless  the  claim  is  verified  and  demand  made  of  the  ex- 
ecutor or  administrator  within  one  year  after  his  appointment. 

Note  and  Interest 

Where  a  note  due  in  one  year  with  ten  per  cent  interest  from  date 
is  not  paid  when  due  it  will  only  draw  six  per  cent,  interest  after  due, 
for  the  reason  that  the  maker  did  not  contract  to  pay  any  interest 
after  the  note  should  become  due,  or  until  It  should  be  paid. 


784  Kentucky  Opinions. 

appeal  from  ohio  circuit  court. 

October  26,  1876. 
Opinion  by  Judge  Elliott: 

This  action  was  brought  by  appellee  against  Tyler  Griffin,  executor 
of  Frank  Griffin,  and  Henry  D.  McHenry,  for  the  recovery  of  the 
amount  of  a  promissory  note  for  three  hundred  dollars  executed  by 
said  Frank  Griffin  and  McHenry  on  the  23rd  day  of  August,  1872, 
and  payable  one  year  after  date,  with  interest  at  the  rate  of  10  per 
cent,  from  date. 

The  petition  charges  that  Frank  Griffin  died  on  the day  of 

,  1874,  and  that  proper  affidavit  and  demand  had  been  made 

of  appellant,  Tyler  Griffin,  his  executor ;  but  the  affidavit  annexed  to 
said  note  and  made  a  part  of  appellee's  petition  shows  that  it  was 
made  February  7,  1876,  which  was  more  than  one  year  after  the 
death  of  the  decedent.  The  first  question  presented  is  whether  the 
judgment  for  interest  against  appellant,  Tyler  Griffin,  as  executor  of 
decedent,  was  proper.  It  is  provided  by  Sec.  53,  Chap.  39,  Art.  i, 
Gen.  Stat,  that  "No  interest  accruing  after  his  death  shall  be  allowed 
or  paid  on  any  claim  against  a  decedent's  estate,  unless  the  claim  be 
verified  and  authenticated  as  required  by  law  and  demand  of  the 
executor,  administrator,  or  curator,  within  one  year  after  his  ap- 
pointment." 

If  Frank  Griffin  departed  this  life  in  1874,  as  charged  in  appellee's 
petition,  the  affidavit  and  demand  must  have  been  made  more  than 
one  year  after  his  executor's  appointment,  as  it  was  not  made  until 
February  7,  1876,  and  consequently  no  interest  should  have  been  ad- 
judged against  his  executor,  Tyler  Griffin,  on  said  note,  after  the 
death  of  his  testator.  But  appellants  complain  that  interest  at  the 
rate  of  10  per  cent,  was  adjudged  against  them  from  the  time  the 
claim  became  due  till  the  same  should  be  collected  by  the  coercive 
process  of  the  law.  By  the  terms  of  the  contract  the  obligors  only 
bound  themselves  to  pay  10  per  cent,  interest  on  the  claim  for  one 
year,  and  at  the  end  of  said  time  they  promised  to  pay  the  entire  debt 
and  accrued  interest ;  and  as  they  did  not  agree  in  writing  to  pay  10 
per  cent,  interest  after  the  claim  of  appellee  became  due,  the  judg- 
ment for  such  interest  must  be  deemed  erroneous. 

It  will  be  proper  for  the  appellee  to  amend  his  petition  and  show 
the  exact  time  of  the  death  of  Frank  Griffin,  and  the  qualification  of 
his  executor,  as  he  is  entitled  to  judgment  for  interest  on  the  claim 
up  to  the  death  of  the  testator,  and  also  up  to  the  payment  of  the 


F.  J.  Staton,  et  al.,  V,  J.  W.  Christian,  et  al.  785 

claim,  if  the  affidavit  and  demand  were  made  within  one  year  after 
the  quaHfication  of  the  executor,  and  against  McHenry  up  to  the  pay- 
ment of  the  claim;  but  he  is  entitled  to  a  judgment  against  neither 
except  for  the  principal  and  10  per  cent,  interest  thereon,  for  one  year 
after  the  execution  of  the  note  sued  on,  and  then  for  6  per  cent,  per 
annum  till  the  same  is  paid. 

Wherefore  said  judgment  is  reversed  with  leave  to  appellee  to 
amend  as  indicated  herein,  and  for  further  proceedings  consistent 
with  this  opinion. 

• 

McHenry  &  Hill,  for  appellants.     Fogle  &  Sweeney,  for  appellee. 


F.  J.  Staton,  et  al.,  v.  ].  W.  Christian,  et  al. 

Sale  of  Real  Estate — Cancellation  of  Deed. 

If  the  grantor  of  real  estate  has  no  title  and  knows  it  and  this  fact 
was  unknown  to  the  grantee  at  the  time  of  the  execution  of  the  deed 
and  was  fraudulently  concealed  from  him  by  the  grantor,  such  grantee 
is  entitled  to  have  the  deed  canceled. 

Insolvency  and  Fraud. 

Insolvency  and  fraud  when  properly  pleaded  is  a  complete  defense 
to  an  executed  contract,  and  the  party  who  by  the  fraud  of  a  grantor 
has  been  induced  to  accept  a  deed  when  the  grantor  had  no  title  and 
knew  he  had  none  and  the  grantee  was  in  ignorance  of  such  facts  at 
the  time  the  deed  was  executed,  is  not  compelled  to  rely  on  his 
warranty. 

APPEAL  PROM  Mccracken  circuit  court. 

October  27,  1876. 
Opinion  by  Judge  Pryor  : 

The  court  acted  properly  in  permitting  the  appellees  to  prosecute 
their  cross-action  against  the  appellants.  They  had  been  regularly 
brought  into  court  and  required  to  enforce  their  lien,  and  the  compro- 
mise between  the  original  parties  to  the  action  could  not  affect  their 
rights.  They  were  made  defendants  to  the  cross-petition  of  Clark, 
and  their  answer  to  this  was  as  required,  and  the  cross-petition  by 
them  against  the  appellants,  as  authorized  by  Chap.  4  of  the  Civil 
Code,  and  the  amendments  thereto. 

The  answer  of  the  appellants  presented  a  good  defense  to  the 
action.  It  is  expressly  alleged  that  the  appellees  have  no  title,  that 
this  fact  was  unknown  to  the  appellants  and  known  to  the  appellees 

50 


786  Kentucky  Opinions. 

at  the  time  of  the  execution  of  the  deed,  and  fraudulently  concealed 
by  them  from  the  defendants.  If  the  appellees  have  no  title  they 
should  not  be  permitted  to  recover.  Fraud  vitiates  the  contract, 
whether  executory  or  executed,  and  if  the  appellees  are  without  title, 
and  knew  it  when  they  sold,  and  concealed  the  fact  from  the  defend- 
ants, they  are  entitled  to  a  cancelment  of  the  deed.  Insolvency,  non- 
residency  and  fraud,  all  or  either,  when  properly  pleaded,  make  a 
complete  defense  to  an  executed  contract  like  this.  The  party  is  not 
compelled  to  rely  on  his  warranty.  Gale  v.  Conn,  3  J.  J.  Marsh.  538; 
Vance  v.  House*s  Heirs,  5  B.  Mon.  540. 

The  fact  that  the  parties  only  conveyed  their  interest  is  immaterial. 
The  language  of  the  deed  imports  that  they  had  an  interest,  and  it  is 
hardly  to  be  supposed  that  the  appellants  would  undertake  to  pay  to 
the  appellees  several  hundred  dollars  without  any  consideration.  The 
burden  of  showing  fraud  is  on  the  appellants,  and  that  must  be  estab- 
lished in  a  case  like  this.  The  appellants  should  be  permitted  to  pre- 
sent their  defense. 

The  judgment  is,  therefore,  reversed  and  cause  remanded  for 
further  proceedings  consistent  with  this  opinion.  The  vendors  and 
appellees  being  the  owners  of  all  the  notes,  there  was  no  error  in  sub- 
jecting the  land  to  the  payment  of  the  notes  due. 

King  &  Gilbert,  for  appellants.     Bigger  &  Reid,  for  appellees. 


A.  R.  Hay  v.  W.  G.  Hunter. 

Conveyance  of  Real  Estate — Grantee  Must  Rely  on  His  Warranty  When 
Grantor  Is  Neither  a  Non-Resident  nor  Insolvent. 

One  who  has  accepted  the  conveyance  of  real  estate,  in  the  absence 
of  fraud  and  where  the  grantor  Is  neither  a  non-resident  nor  insolvent, 
must  rely  on  his  warranty  and  cannot  resist  the  pajmient  of  a  note 
given  for  such  conveyance  even  if  the  wife  of  the  grantor  has  not 
relinquished  her  dower. 

APPEAL  FROM  CLINTON  CIRCUIT  COURT. 

October  27,  1876. 

Opinion  by  Judge  Lindsay: 

Hay,  having  accepted  the  conveyance  of  Mayo,  must  rely  on  the 
warranty  therein  contained,  and  he  cannot  resist  the  payment  of  the 
note  sued  on,  even  if  Mrs.  Mayo  had  not  relinquished  her  right  to 
dower,  without  showing  that  Mayo  was  insolvent  or  a  non-resident. 


R.  D.  Geoghegan's  Ex'r  v.  John  G.  Hillson.  787 

But  the  conveyance  shows  that  Mrs.  Mayo  did  relinguish  her  right 
to  dower,  and  the  recollection  of  the  clerk  on  that  subject  cannot  be 
allowed  to  override  his  official  certificate. 

There  was  no  order  of  survey  in  the  case.  The  witnesses  evidently 
know  little  or  nothing  about  the  exact  location  of  the  boundary  lines 
of  the  tract  of  land  sold  by  Mayo  to  Hall.  The  court  could  not  de- 
termine from  their  evidence  that  the  twenty-five  acres  mentioned  by 
Hall  as  having  been  shown  to  him  by  Mayo  as  part  of  the  tract, 
are  outside  of  the  real  boundaries.  The  agreement  between  Lane  & 
Dalton  cannot  prejudice  Hay,  even  if  it  can  be  upheld.  He  gets  in 
value  as  much  land  from  Lane  as  she  gets  from  him. 

The  other  defect  complained  of  is  too  insignificant  to  be  taken  into 
consideration  in  a  contract  in  which  a  variation  of  two  or  three  acres 
was  evidently  contemplated  by  the  parties. 

Judgment  affirmed. 

James  £.  Hays,  for  appellant.    /.  A.  Brents,  for  appellee. 


R.  D.  Geoghegan's  Ex'r  v.  John  G.  Hillson. 

Guardian  and  Ward — Suit  on  Guardian's  Bond — Averments  of  Necessary 
Facts. 

Where  in  a  suit  against  a  guardian  and  his  bondsmen  by  the  ward 
no  averment  is  pleaded  showing  that  the  plaintiff  is  of  the  age  of 
twenty-one  years  or  older,  such  omission  is  waived  by  an  answer 
which  avers  such  fact. 

Limitations. 

Where  a  suit  is  filed  before  barred  by  the  statute  of  limitations 
and  the  petition  is  amended  after  a  time  when  the  original  action 
would  have  been  barred,  the  plea  of  the  statute  of  limitations  cannot 
be  maintained  where  such  amendment  does  not  declare  upon  a  new 
cause  of  action. 

APPEAL  FROM  HARDIN  CIRCUIT  COURT. 

October  28,  1876. 

Opinion  by  Judge  Elliott  : 

This  action  was  brought  by  appellee  in  the  Hardin  circuit  court 
against  his  guardian,  A.  E.  Geoghegan,  and  his  surety,  R.  D.  Geoghe- 
gan.  It  appears  from  this  record  that  the  appellee's  father  departed 
this  life  in  one  of  the  southern  states,  that  A.  E.  Geoghegan  was  ap- 
pointed guardian  for  his  two  infant  children,  and  that  he  procured 


788  Kentucky  Opinions. 

an  order  of  said  court  by  which  he  was  permitted  to  remove  the 
estate  of  his  minor  to  this  state,  and  that  in  1848  he  presented  the 
record  of  said  proceedings  in  the  state  where  appellee's  father  was 
domiciled  at  the  time  of  his  death,  to  the  county  court  of  the  county 
of  Hardin,  and  was  by  an  order  of  said  court  duly  appointed 
guardian  of  said  infant  appellee  and  his  brother;  and  as  required 
he  executed  his  guardian  bond  with  appellant's  testator,  R.  D.  Geog- 
hegan,  and  M.  Geoghegan  as  his  sureties. 

Said  Geoghegan  then  filed  in  said  court  the  record  of  his  settle- 
ment in  the  state  of  decedent's  domicile  as  his  inventory  of  said 
estate  and  entered  upon  the  discharge  of  his  duties  as  guardian  afore- 
said ;  and  in  October,  1869,  he  presented  his  accounts,  vouchers,  etc., 
and  made  what  seems  to  have  been  intended  as  a  complete  settlement 
of  his  guardianship,  so  far  as  appellee  was  concerned,  and  said  set- 
tlement was  reported  to  the  Hardin  county  court.  At  its  February 
term,  1870,  said  reported  settlement  was  reinstated  on  exceptions, 
and  after  a  correction  of  the  errors  it  contained,  said  report  as  cor- 
rected was  confirmed  and  ordered  to  be  recorded  as  a  final  settlement 
of  A.  E.  Geoghegan's  guardianship  so  far  as  the  appellee  was  con- 
cerned. Said  guardian  was  present  and  assisted  to  make  this  settle- 
ment, and  the  record  shows  that  it  was  made  on  the  evidence  of  in- 
debtedness presented  by  himself.  In  1870  this  action  was  brought 
by  appellee  against  said  guardian  and  his  surety,  R.  D.  Geoghegan, 
on  their  said  guardian's  bond,  in  which  he  charged  that  said  guardian 
was  indebted  to  him  in  the  sum  of  twelve  thousand  nine  hundred 
fifty- four  dollars  and  seventy-six  cents;  and  he  asked  judgment 
against  his  said  former  guardian  and  said  surety,  R.  D.  Geoghegan, 
for  said  sum,  with  interest  from  the  30th  of  October,  1869,  the  date 
of  the  settlement  of  said  guardian's  accounts  as  such. 

This  petition  failed  to  state  that  the  appellee  had  arrived  at  the 
age  of  twenty-one  years,  but  the  death  of  R.  D.  Geoghegan  having 
been  suggested  and  a  revivor  had  against  the  appellant,  he  filed  an 
answer  in  which  he  stated  that  the. appellee  had  arrived  at  the  age  of 
twenty-one  years.  Afterwards  the  appellee  amended  his  petition  and 
set  out  the  bond  sued  on  and  its  breach  with  some  more  particular- 
ity, and  it  is  insisted  that  this  amendment  set  up  a  new  cause  of 
action.  The  motion  of  appellants  to  file  a  plea  of  the  statute  of  limi- 
tations having  been  refused  by  the  lower  court,  he  complains  that  the 
court  erred  by  such  refusal  and  that  the  claim  was  barred  by  limita- 
tions. We  think  not,  for  two  reasons :  First,  although  the  original 
petition  was  defective  in  not  stating  that  appellee  had  ceased  to  be 


R.  D.  Geoghegan's  Ex*r  v,  John  G.  Hillson.  789 

an  infant,  the  answer  of  the  appellant  cured  the  defect  by  stating  that 
he  had  arrived  at  majority ;  and,  secondly,  the  amended  petition  only 
sought  to  cure  a  defect  in  the  statement  of  the  original  cause  of 
action,  but  did  not  attempt  to  introduce  or  state  any  new  cause  of 
action ;  and  it  is  the  settled  law  of  this  state  that  where  the  amended 
petition  is  filed  to  amplify  or  cure  some  defect  in  the  statement  of 
the  original  cause  of  action,  and  does  not  introduce  a  new  cause  of 
action,  the  statute  of  limitation  does  not  run  against  the  cause  of 
action  up  to  the  filing  of  the  amended  petition,  but  only  runs  up  to 
the  issuing  of  the  summons  in  the  action  in  which  said  amendment 
is  filed.  Horton  v.  Banner,  6  Bush  596. 

It  is  also  objected  that  the  record  of  the  settlement  of  A.  E. 
Geoghegan,  made  in  the  state  of  Mississippi,  of  his  guardianship  of 
appellant,  was  inadmissible  as  evidence  in  this  action.  This  may 
have  been  true  if  said  guardian  had  not  filed  it  as  the  inventory  by 
which  he  evidenced  his  indebtedness  to  his  ward,  but  having  done  so, 
said  paper  was  legitimate  evidence  in  said  cause.  But  it  is  said  that 
the  settlement  of  October,  1869,  made  by  the  guardian  of  appellant 
with  the  judge  of  the  Hardin  county  court,  is  void  because  records  of 
said  court  fail  to  show  that  it  was  returned  to  the  Hardin  county 
court  and  filed  to  the  first  term  after  it  was  made. 

We  are  of  opinion  that  these  irregularities,  if  they  exist,  were 
waived  by  the  guardian  by  his  appearance  at  the  February  term,  1870, 
of  the  Hardin  county  court,  and  filing  exception  to  same,  and  also 
his  presence  and  active  participation  in  the  trial  of  said  exceptions, 
at  the  termination  of  which  trial  on  said  exceptions  said  report  of  set- 
tlement as  corrected  was  ordered  to  be  recorded  as  a  full  settlement 
of  the  accounts  of  said  guardian  so  far  as  the  estate  of  appellee  was 
concerned.  We  are  of  opinion  that  this  settlement  is  prima  facie  evi- 
dence of  the  indebtedness  of  the  said  guardian  to  appellee ;  and,  as 
appellant  failed  to  deny  that  said  recorded  settlement  was  made,  and 
made  no  attempt  to  surcharge  it  or  falsify  any  of  the  items  thereof, 
w^e  do  not  perceive  how  he  can  avoid  the  force  of  it  in  this  suit. 

But  it  is  said  that  after  this  suit  was  instituted  the  appellee  and  his 
former  guardian  made  a  contract  by  which  said  guardian  was  to 
and  did  pay  him  fifteen  hundred  dollars,  and  that  said  appellee  was 
to  and  did  suspend  his  said  action  and  wait  twelve  months  before 
making  any  eflPort  to  enforce  said  guardian's  liability,  and  that  this 
w^as  done  without  appellant's  testator's  knowledge  and  consent.  On 
the  other  hand  said  appellee  contended  that  he  only  agreed  if  said 
guardian  would  pay  him  fifteen  hundred  dollars  he  would  give  him 


790  Kentucky  Opinions. 

credit  on  said  debt,  which  he  did,  and  that  any  agreement  to  wait 
was  without  consideration  and  void,  and  in  addition  thereto  that  ap- 
pellee's testator  assisted  to  get  the  money  with  which  to  make  said 
partial  payment,  and  begged  for  and  assented  to  all  the  time  g^ven 
by  appellee  on  said  debt. 

If  the  $1,500.00  was  furnished  to  be  placed  as  a  credit  to  the 
guardian  and  went  to  extinguish  that  much  of  his  indebtedness,  then 
the  giving  of  time  on  the  balance  was  a  matter  of  favor  and  was 
without  consideration,  and  could  have  been  disregarded  by  appellee 
at  any  time ;  and  had  the  agreement  been  supported  by  a  valuable  con- 
sideration, if  assented  to  by  the  appellant's  testator,  it  was  no  con- 
tract of  which  he  could  take  advantage. 

We  are  of  opinion  that  the  court  ruled  the  law  correctly  on  all  the 
questions  made,  and  we  perceive  no  error  in  either  giving  or  refusing 
instructions ;  and  we  have  some  doubt  as  to  whether  the  appellee  was 
not  entitled  to  judgment  on  the  pleading^,  save  the  plea  of  novation, 
which  was  not  sustained  by  the  verdict  under  correct  rulings  of  the 
law  by  the  court. 

Wherefore  the  judgment  is  affirmed. 

Brown  &  Chelf,  for  appellant, 

James  Montgomery,  M,  H.  Marriott,  for  appellee. 


James  C.  Rudd  and  Wife  v.  J.  F.  Kimbly,  et  al. 

Usury — Forfeiture. 

Chapter  60  of  the  General  Statutes,  |  4,  art.  2,  provides  that  where 
usury  Is  Intentionally  charged,  the  whole  of  the  Interest  Is  forfeited. 

Penalty  for  Exacting  Usurious  Interest. 

The  party  desiring  to  have  Interest  forfeited  where  usury  is 
charged,  must  aver  affirmatively  that  the  Illegal  Interest  was  inten- 
tionally charged  and  must  sustain  his  averment  by  proof. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

November  3,  1876. 

Opinion  by  Judge  Lindsay: 

Section  4,  Art.  2,  Chap.  60,  Gen.  Stats.,  provides  that  if  any  person 
shall  intentionally  charge  a  greater  rate  of  interest  for  the  loan  or 
forbearance  of  money  than  is  authorized  by  said  article,  the  whole 
interest  shall  be  forfeited. 


Samuel  Orr  v.  A,,],  Colley.  791 

The  party  who  desires  the  benefit  of  this  forfeiture  must  ask  for 
it.  He  must  aver  affirmatively  that  the  illegal  interest  was  intention- 
ally charged,  and  an  issue  of  fact  may  be  raised  upon  the  question 
of  intention.  The  court  will  not  assume  that  illegal  interest  was  in- 
tentionally charged,  and  then  upon  its  own  motion  enforce  a  for- 
feiture in  favor  of  a  party  not  asking  for  any  such  relief. 

The  chancellor,  having  no  legal  right  to  render  a  judgment  for 
usurious  interest,  will  purge  a  claim  sued  on,  when  it  appears  upon 
its  face  to  embrace  usury.  But  he  will  not,  unless  the  pleadings  re- 
quire it,  inquire  as  to  the  propriety  of  inflicting  a  penalty  upon  the 
creditor.  When  this  cause  returns  to  the  circuit  court,  application 
upon  the  part  of  the  appellants  for  leave  to  plead  further  will  be 
addressed  to  the  sound  legal  discretion  of  the  chancellor,  and  this 
court  will  not  interfere  with  the  exercise  of  that  discretion,  by  direct- 
ing specifically  the  steps  he  should  allow  the  parties  to  take  in  the 
way  of  further  preparation. 

Kimbly's  branch  of  the  case  was  ready  for  hearing  when  the  final 
judgment,  fixing  the  amount  of  the  claim  for  which  Mrs.  Rudd's 
land  is  bound  to  him,  was  rendered.  The  bank's  case  was  also  ready 
for  hearing.  The  reversal  of  the  judgment  in  favor  of  the  bank 
renders  necessary  the  reversal  of  the  judgment  in  favor  of  Kimbly, 
and  compels  him  to  await  the  action  of  the  chancellor  in  the  enforce- 
ment of  the  bank's  mortgage.  But  as  Mrs.  Rudd  withdrew  her 
answer,  and  as  there  is  now  no  issue  of  fact  pending  between  her  and 
Kimbly,  we  do  not  think  that  equity  practice  requires  that  the  ques- 
tions settled  shall  be  opened  in  order  first  to  let  Mrs.  Rudd  answer, 
and  then  to  make  preparation  to  sustain  her  defense. 

Petitions  in  each  of  these  cases  overruled. 


Samuel  Orr  v.  A.  J.  Colley. 

Statute  of  Frauds — Contracts — Consideration. 

A  parol  promise  to  pay  the  debt  of  another,  not  reduced  to  writing, 
is  not  enforcible  because  of  the  statute  of  frauds,  but  a  contract  with 
a  debtor  founded  *  upon  a  valuable  consideration  to  pay  the  debt 
which  he,  the  debtor,  owes  to  the  creditor  is  binding. 

Consideration. 

Where  one  person  in  consideration  of  the  sale  of  another's  interest 
in  a  certain  business,  promises  to  pay  oft  a  debt  of  such  other  person 
and  fails  to  do  so  and  hence  the  vendor  of  such  business  interest  is 
forced  to  pay  the  same,  he  may  recover  the  amount  from  his  vendee, 
who  agreed  to  pay  such  debt. 


792  Kentucky  Opinions. 

APPEAL  FROM  GRAVES  CIRCUIT  COURT. 

November  3,  1876. 

Opinion  by  Judge  Elliott: 

It  appears  from  the  record  that  the  sheriff  of  Graves  county  had 
rented  what  was  known  as  the  Waller  and  Pryor  house  in  Mayfield, 
Graves  county,  Ky.,  to  another,  Gardner,  and  that  afterwards  Gard- 
ner rented  the  lower  east  room  to  the  appellee  and  J.  N.  Colley,  to 
be  kept  and  used  as  a  barroom,  at  the  price  of  one  hundred  thirty- 
five  dollars,  due  the  first  day  of  January,  1865. 

The  evidence  conduces  to  show  that  some  time  after  this  contract 
was  made  appellee  sold  his  interest  in  said  barroom  to  the  appellant 
and  B.  F.  Colley,  and  his  former  partner,  J.  N.  Colley,  and  that  by 
the  terms  of  said  sale  the  said  appellant  and  B.  F.  Colley  were  to  pay 
off  and  discharge  the  $135  note  executed  by  appellee  to  Gardner, 
which  they  failed  to  do.  Judgment  having  been  obtained  against 
said  appellee  by  Gardner,  and  he  having  paid  the  same,  he  instituted 
this  action  to  recover  the  amount  so  paid.  The  important  question 
involved  is  as  to  whether  the  promise  by  appellant,  if  made,  to  pay 
said  TiQte  to  Gardner,  is  binding  although  not  made  in  writing.  A 
parol  promise  to  pay  the  debt  of  another  is  not  enforcible  by  reason 
of  the  statute  of  frauds,  but  a  contract  with  a  debtor  founded  upon  a 
valuable  consideration  to  pay  the  debt  which  he,  the  debtor,  owes  to 
the  creditor,  is  binding,  and  a  recovery  can  be  had  for  its  violation. 
North  V.  Robinson,  i  Duv.  73. 

If,  therefore,  appellant  promised  the  appellee,  in  consideration 
of  the  sale  of  the  said  appellee's  interest  in  the  said  barroom  and 
grocery,  to  pay  off  and  discharge  the  said  note  executed  by  said  ap- 
pellee to  Gardner,  for  the  rent  of  said  house,  and  failed  to  do  so, 
and  afterwards  said  appellee  was  by  legal  coercion  forced  to  pay 
the  same,  there  can  be  no  doubt  but  that  he  could  recover  the  amount 
so  paid  against  said  appellant. 

The  evidence  is  conflicting  as  to  the  agreement  by  appellant  to  pay 
the  Gardner  note ;  but  the  cause  was  submitted  to  a  jury,  and  as  the 
evidence  was  conflicting,  their  verdict  must  be  considered  conclusive 
on  the  facts  of  said  case ;  and  in  our  opinion  the  law  was  correctly 
ruled  bv  the  instructions  of  the  court. 

The  judgment  must  be  affirmed. 

StubblcMd  &  Smith,  for  appellant, 
J.  C.  Gilbert,  IV,  IV.  Tice,  for  appellee. 


p.  C.  Ross  V,  John  Cunningham,  et  al.  793 

P.  C.  Ross  z\  John  Cunningham,  et  al. 

Slander — Instructions. 

When  in  defense  of  a  slander  suit  the  defense  of  justification  is 
pleaded  and  relied  upon,  it  is  error  for  the  court  to  charge  the  Jury 
that  if  they  believe  the  slanderous  words  were  spoken  they  must  find 
for  the  plaintiff  unless  they  believe  from  the  evidence  beyond  a  rea- 
sonable doubt  that  the  words  spoken  were  true. 

Reasonable  Doubt. 

It  is  not  incumbent  on  a  defendant  in  a  slander  suit  to  prove  the 
truthfulness  of  the  words  spoken  beyond  a  reasonable  doubt 

APPEAL  PROM  MARSHALL  CIRCUIT  COURT. 

November  15,  1876. 

Opinion  by  Judge  Elliott: 

In  this  action  of  slander  the  appellees  charged  that  the  appellant 
said  in  the  hearing  of  witnesses  that  John  Cunningham  (the  male  ap- 
pellee) found  his  wife  (a  female  appellee)  in  a  whorehouse  in 
Louisville,  Ky. 

The  appellant  at  first  filed  his  answer  of  not  guilty,  which  he  after- 
wards withdrew,  and  filed  an  answer  in  which  he  admitted  that  he 
spoke  the  words  in  a  private  conversation  to  his  wife  and  without 
any  intention  that  said  words  should  be  published.  He,  however, 
stated  that  the  words  so  uttered  by  him  were  true,  which  in  eflFect 
made  his  answer  amount  to  a  plea  of  justification. 

On  this  issue  the  parties  went  to  trial ;  and  after  hearing  the  evi- 
dence of  many  witnesses  for  each  party  to  this  litigation,  and  after 
hearing  the  instructions  of  the  court  and  arguments  of  counsel,  the 
jury  rendered  a  verdict  for  the  appellees  for  the  sum  of  three  thou- 
sand dollars.  Appellant's  motion  for  a  new  trial  having  been  over- 
ruled he  has  brought  the  case  to  this  court,  and  insists  that  said 
judgment  should  be  reversed  for  many  reasons. 

We  are  of  opinion  that  the  evidence  conduced  to  prove  the  utter- 
ance of  the  words  as  charged  by  appellees  to  have  been  uttered  by 
appellant,  and  as  the  jury  had  a  right  to  decide  from  the  evidence 
whether  the  plea  of  justification  had  been  sustained,  and  also  the 
amount  the  female  appellee  had  been  damaged,  and  as  they  did  de- 
cide that  the  appellant  spoke  the  words,  and  that  they  were  slander- 
ous, and  as  they  fixed,  as  they  had  the  right  to  do,  the  damage  done 
to  the  female  appellee,  said  verdict  must  stand  unless  the  court  erred 
in  its  instructions  to- the  jury. 


794  •  Kentucky  Opinions. 

By  instruction  No.  2,  asked  by  the  appellees,  the  jury  are  in  sub- 
stance told  that  if  they  believe  from  the  evidence  that  the  appellant 
uttered  the  slanderous  words  as  charged  against  him,  then  they 
must  find  for  the  appellees,  unless  they  believe  from  the  evidence  be- 
yond a  reasonable  doubt  that  at  the  time  of  the  marriage  of  the  male 
and  female  appellees  the  said  female  was  a  prostitute.  This  in- 
struction was  clearly  erroneous,  and  the  error  was  not  cured  by 
a  subsequent  instruction  in  which  the  jury  were  told  that  the  plea  of 
justification  could  be  sustained  by  a  preponderance  of  the  evidence 
adduced  on  the  trial. 

We  know  of  no  rule  of  law  that  requires  that  the  evidence  shall 
be  so  conclusive  as  to  shut  out  all  reasonable  doubt  of  the  facts 
charged  in  any  civil  action  in  this  country.  It  is  only  where  the  life 
or  liberty  of  the  citizen  is  involved  that  a  rational  doubt  of  guilt  in 
the  juror's  mind  amounts  to  an  acquittal. 

It  has  been  said  by  some  jurists,  eminent  in  their  profession,  that 
where  a  party  is  accused  of  a  crime  which,  if  true,  would  deprive  him 
of  his  liberty,  his  accuser,  if  he  justifies,  ought  to  satisfy  the  minds 
of  the  jury  in  an  action  of  slander  even  beyond  a  reasonable  doubt  of 
the  truth  of  the  offense  charged ;  but  the  contrary  doctrine  has  been 
held  by  this  court. 

But  the  words  charged  to  have  been  spoken  in  this  case  do  not 
amount  to  a  criminal  charge.  If  all  that  appellant  said  of  the  female 
appellee  were  true,  then  she  would  only  be  guilty  of  a  misdemeanor, 
and  not  a  crime,  and  the  appellant's  plea  of  justification  required  no 
more  evidence  to  sustain  it  than  a  plea  in  bar  of  any  other  civil  ac- 
tion does. 

It  was  also  erroneous  to  instruct  the  jury  that  both  of  the  appellees 
could  not  be  witnesses  in  this  suit.  It  was  the  duty  of  the  court,  if 
more  than  one  of  the  appellees  had  been  offered  as  a  witness,  to  have 
rejected  the  witness  improperly  offered ;  but  as  such  a  ruling  was 
a  question  of  law  the  jury  had  nothing  to  do  with  it. 

There  appears  to  have  been  some  irrelevant  evidence  given  to  the 
jury,  but  as  the  case  has  to  be  reversed  for  the  errors  indicated  they 
will  not  be  stated  in  detail. 

For  the  errors  indicated  the  judgment  is  reversed  and  cause  re- 
manded for  further  proceedings  consistent  with  this  opinion. 

Charles  S.  Marshall,  R,  K.  Williams,  for  appellant, 
J.  C.  Gilbert,  J.  B,  Husbands,  for  appellees. 


Andrew  J.  Smith  v,  Samuel  Berry.  795 

Andrew  J.  Smith  v.  Samuel  Berry. 

Practice — Instructions. 

One  failing  to  except  to  an  order  requiring  him  to  elect  which  of 
the  causes  of  action  he  will  prosecute  waives  his  right  to  have  this 
court  pass  upon  the  question. 

Duty  of  Counsel. 

Counsel  should  ask  instructions  upon  such  points  as  they  desire, 
and  when  none  are  especially  asked  the  court  trying  the  cause  has  a 
right  to  assume  that  such  as  are  given  meets  the  views  of  counsel 
and  upon  an  appeal  this  court  will  assume  that  the  omission  to  give 
further  instructions  was  assented  to. 

APPEAL  FROM  NICHOLAS  CIRCUIT  COURT. 

November  16,  1876. 

Opinion  by  Judge  Cofer: 

The  appellant  did  not  except  to  the  order  requiring  him  to  elect 
which  of  the  causes  of  action  he  would  prosecute,  and  by  failing  to 
do  so  waived  any  right  he  might  otherwise  have  had  to  insist  in  this 
court  that  said  order  was  erroneous.  Nor  did  he  except  to  the  single 
instruction  given  by  the  court  or  ask  any  instruction  in  respect  to 
limitation,  or  anything  else. 

The  bill  of  exceptions  shows  that  "the  parties  asked  the  court  to 
instruct  the  jury  in  the  law  of  the  case,"  but  no  instructions  were 
offered ;  nor  does  it  appear  that  the  appellant  even  suggested  to  the 
court  the  points  upon  which  he  desired  to  have  the  jury  instructed. 
A  party  has  no  right  thus  to  abandon  his  case  to  the  court  without 
suggesting  what  instructions  he  desires  to  have  given,  and  then 
to  ask  this  court  to  reverse  the  judgment  because  instructions  which 
might  have  been  proper  were  not  given.  It  is  the  duty  of  counsel 
to  ask  instructions  upon  such  points  as  they  desire,  and  of  the  court 
to  give  or  refuse  them ;  and  when  none  are  specially  asked  for,  the 
court  trying  the  cause  has  a  right  to  assume  that  such  as  are  given 
meet  the  views  of  counsel,  and  that  no  others  are  desired ;  and  upon 
an  appeal  this  court  will  assume  that  the  omission  to  g^ve  further 
instructions  was  assented  to. 

Judgment  affirmed, 

Hargis  &  Norz'ell,  for  appellant,     W.  P.  Ross,  for  appellee. 


796  Kentucky  Opinions. 

Squire  Hammonds  v.  Commonwealth. 

Criminal  Law — Malicious  Stabbing. 

The  offense  of  malicious  stabbing  with  Intent  to  kill  is  not  a  degree 
of  homicide.  All  kind  of  offenses  where  the  death  of  a  human  being 
results  are  degrees  of  homicide. 

Homicide. 

Where  a  person  with  malice  aforethought  and  with  purpose  to  kill 
deceased,  aided  and  abetted,  then  such  person  is  guilty  of  murder  as 
principal  whether  his  conduct  resulted  in  the  death  of  the  deceased 
or  merely  aided  in  such  result. 

Homicide. 

When  two  principals  in  the  murder  of  a  person,  both  wounded  the 
deceased  with  their  knives  by  cutting  him  in  sudden  heat  and  passion 
both  are  guilty  of  manslaughter,  and  the  offense  of  malicious  stabbing 
with  intent  to  kill  was  merged  in  the  higher  offense  of  murder  or 
manslaughter. 

APPEAL  FROM   OWEN  CIRCUIT  COURT. 
November  16,  1876. 

Opinion  by  Judge  Elliott: 

Upon  an  indictment  by  which  the  appellant  was  charged  with  the 
murder  of  one  Robert  Martin,  he  was  tried  and  sentenced  to  the 
penitentiary  for  five  years  by  the  judgment  of  the  Owen  criminal 
court ;  and  having  filed  grounds  and  moved  for  a  new  trial  of  said 
cause,  and  the  same  being  overruled,  he  appeals  to  this  court  and 
asks  a  reversal  of  said  judgment  of  conviction. 

The  evidence  conduces  to  prove  that  in  an  encounter  between  one 
Smith  and  Robert  Martin,  the  said  Smith  took  his  life  by  stabbing 
him  with  a  knife  in  the  back  and  breast,  and  other  places  on  the 
body ;  and  it  is  charged  that  appellant  was  present  and  also  stabbed 
the  deceased,  and  therefore  is  guilty  as  one  of  the  principal  offenders 
in  his  murder. 

After  defining  the  oflFense  of  murder,  and  voluntary  and  involun- 
tary manslaughter,  the  court  instructed  the  jury  by  instruction  No. 
4,  in  substance,  that  if  they  believed  from  the  evidence  beyond  a  rea- 
sonable doubt  that  appellant,  with  malice  aforethought  and  not  in 
his  necessary  self-defense,  stabbed  and  wounded  Robert  Martin  with 
the  intention  to  kill  him,  the  said  Martin,  of  which  wounds  he  did 
not  die,  then  his  punishment  shall  be  confinement  in  the  penitentiary 
not  less  than  one  nor  over  five  vears. 


J.  G.  Campbell  v.  William  Irvine.  797 

By  Sec.  258,  Criminal  Code,  it  is  provided  that  upon  an  indictment 
for  an  offense  consisting  of  different  degrees  the  defendant  may  be 
found  guilty  of  any  degree  not  higher  than  that  charged  in  the  in- 
dictment, and  may  be  found  guilty  of  any  offense  included  in  that 
charged  in  the  indictment.  By  Sec.  259,  Criminal  Code  the  degrees 
of  offenses  are  defined,  and  it  will  be  seen  that  the  offense  of 
malicious  stabbing  with  intent  to  kill  is  not  a  degree  of  the  offense  of 
homicide,  but  that  all  kinds  of  offenses,  where  the  death  of  a  human 
being  results,  are  degrees  of  the  said  homicide.  The  section  referred 
to  makes  malicious  stabbing  a  degree  of  the  offense  of  injury  to  the 
person,  and  not  a  degree  of  the  offense  of  homicide. 

If  Smith  was  guilty  of  murder  in  the  killing  of  the  deceased,  and 
the  appellant,  with  malice  aforethought  and  with  purpose  to  kill  de- 
ceased, aided  and  abetted,  then  he  and  Smith  are  both  principals  in 
the  murder  of  deceased,  and  if  they  both  wounded  deceased  with 
their  knives  by  cutting  him  in  sudden  heat  and  passion,  then  they 
were  both  guilty  of  manslaughter;  and  th€  offense  of  malicious 
stabbing  with  intent  to  kill  or  the  offense  of  stabbing  in  sudden 
heat  and  passion  was  merged  in  the  higher  offense  of  murder  or 
manslaughter,  for  we  take  it  that  he  who  wrongfully  aids  in  the 
killing  of  his  fellow,  whether  the  wounds  inflicted  by  him  produce 
his  death  or  not,  cannot  be  convicted  of  the  offense  of  assaulting  or 
wounding  him,  because  said  minor  offenses  are  merged  in  the  offense 
of  killing  or  aiding  and  abetting  the  same. 

The  second  instruction  is  erroneous,  as  it  fails  to  define  voluntary 
manslaughter,  because  it  requires  that  a  man  shall  feloniously  and 
maliciously  kill  another  in  order  to  be  guilty  of  manslaughter.  The 
court  erred  in  passing  sentence  on  the  appellant  less  than  six  hours 
after  the  verdict  of  the  jury  was  received  in  the  court,  but  this  is 
not  a  reversible  error.    Sec.  278,  Criminal  Code. 

Wherefore  the  judgment  of  conviction  is  rcz'ersed  and  cause  re- 
manded for  further  proceedings  consistent  herewith. 

A,  Diivall,  Strothcr  &  Orr,  Montgomery  &  Page,  for  appellant. 

Moss,  for  appellee. 


J.  G.  Campbell  v.  William  Irvine. 

Release  of  Surety — Notice  to  Holder  to  Prosecute  and  Collect. 

When  a  surety  has  given  notice  to  the  holder  of  a  note  to  sue  and 
prosecute  his  suit  to  collect,  on  the  failure  of  the  holder  to  do  so  with 
reasonable  diligence  and  in  good  faith  such  surety  will  be  released. 


798  Kentucky  Opinions. 

APPEAL  FROM  MARION  CIRCUIT  COURT. 

November  18,  1876. 

Opinion  by  Judge  Cofer  : 

The  appellee  held  the  joint  note  of  J.  G.  Campbell,  E.  G.  Mayes, 
and  Thomas  Irvine,  upon  which  he  brought  suit  against  Campbell 
and  Mayes.  They  answered  at  the  ensuing  August  term,  and  the 
cause  was  continued.  At  the  January  term,  1875,  Campbell  filed  an 
amended  answer  in  which  he  averred  that  on  the  2d  day  of  January 
he  gave  notice  to  the  plaintiff,  now  appellee,  to  sue  out  process 
against  Thomas  Irvine  and  prosecute  the  suit  against  him ;  and  in  a 
second  amended  answer  he  averred  that  suit  had  been  commenced 
against  Thomas  and  process  served  in  time  for  judgment  at  the 
January  term,  that  no  answer  was  filed  or  defense  made,  but  that  the 
plaintiffs  had  failed  to  take  judgment,  and  that  Thomas  had  in  the 
meantime  become  insolvent.  Notwithstnding  the  notice  and  failure 
of  the  appellee  to  prosecute  the  suit  against  Thomas,  the  court  ren- 
dered judgment  against  the  appellant,  J.  G.  Campbell,  for  the  full 
amount  of  the  note. 

Section  11,  Chap.  104,  Gen.  Stat.,  provides:  "A  surety,  co-obligor 
or  co-contractor,  or  one  of  several  defendants  to  a  judgment,  may, 
by  notice  in  writing  served  *  *  *  on  the  creditor  or  plaintiff, 
*  *  *  require  him  to  sue  or  issue  execution;  and  if  the  creditor 
shall  not  sue  to  the  next  term  thereafter  at  which  he  can  obtain  judg- 
ment and  in  good  faith  prosecute  the  suit  with  reasonable  diligence, 
or  if  the  plaintiff  shall  not,  within  ten  days  thereafter,  sue  out  exe- 
cution, and  in  good  faith  prosecute  the  collection  thereof,  such  co- 
surety, co-obligor  or  co-contractor  shall  be  discharged  from  all  lia- 
bility as  such,  except  for  the  proper  share  of  such  co-surety,  co- 
obligor,  co-contractor  or  defendant,  according  to  the  then  existing 
condition  of  the  several  obligors,  contractors,  or  defendants;  and  in 
any  joint  suit  against  the  whole,  or  separate  suit  against  him,  judg- 
ment shall  only  be  rendered  against  him  separately,  and  only  for  such 
proper  share." 

It  is  manifest  that  the  suit  against  Thomas  Irvine  was  not  prose- 
cuted in  good  faith  and  with  reasonable  diligence,  and  judgment 
should  only  have  been  rendered  against  the  appellant  for  his  proper 
share  of  the  debt  according  to  the  then  condition  of  the  several  obli- 
gors. If  all  the  obligors  were  then  solvent,  appellant's  share  of  the 
debt  was  one-third ;  but  the  appellee  was  then  prosecuting  his  suit 


N.  Harris,  et  al.,  v,  Thomas  H.  Prather,  et  al.         799 

against  the  appellant  and  Mayes,  and  the  appellee  cannot  be  dis- 
charged from  any  besides  the  share  of  Thomas  Irvine. 

The  evident  purpose  of  the  statute  was  to  protect  the  party  giving 
the  notice  against  loss  resulting  from  failure  to  sue,  and  he  should 
not  be  released  beyond  the  loss  he  may  have  sustained  by  that  fail- 
ure ;  but  when  he  has  given  the  notice  and  the  obligee  has  failed  to 
sue  and  prosecute  his  suit  in  good  faith  with  reasonable  diligence, 
the  law  assumes  that  he  has  sustained  loss  to  the  amount  to  which  he 
could  have  looked  for  indemnity  to  the  co-obligor  not  sued.  It  does 
not  appear  that  Mayes  is  insolvent,  so  that  had  the  appellant  paid  the 
whole  debt  he  could  only  have  recovered  from  Thomas  one-third, 
and  to  that  extent,  and  that  only,  he  is  released  by  the  notice  and 
failure  of  the  appellee  to  comply  with  the  statute. 

The  judgment  against  the  appellant  is  reversed,  and  cause  re- 
manded with  directions  to  render  judgment  against  him  for  two- 
thirds  of  the  note  and  interest. 

Russell  &  Averitt,  for  appellant. 


N.  Harris,  et  al.,  v.  Thomas  H.  Prather,  et  al. 

Mortgage  or  Sale  of  Personal  Property. 

The  owner  of  personal  property  exempt  from  coercive  seizure  for 
debt  may  nevertheless  sell  it  or  mortgage  it  and  such  sale  or  mort- 
gage may  be  enforced. 

APPEAL  FROM  MERCER  CIRCUIT  COURT. 

November  21,  1876. 

Opinion  by  Judge  Lindsay: 

The  owner  of  personal  property  exempt  from  coercive  seizure  and 
sale  for  debt,  may  nevertheless  sell  it,  or  pledge  it  by  express  con- 
tract. When  the  pledge  is  evidenced  by  a  mortgage  regularly  exe- 
cuted and  delivered,  the  chancellor  must  at  the  suit  of  the  mort- 
gagees enforce  the  contract. 

The  statute  does  not,  as  in  the  case  of  the  homestead  exemption, 
make  the  right  of  the  mortgagee  depend  upon  the  assent  of  the  mort- 
gagor's wife  to  be  expressed  by  the  fact  that  she  joins  in  the  mort- 
gage. This  question  was  incidentally  settled  in  the  case  of  Moxley 
V.  Ragan,  10  Bush  156,  when  it  was  said,  "It  is  well  settled  that  a 
debtor  may  sell  his  personal  property,  exempt  from  execution  either 


8oo  Kentucky  Opinions. 

in  payment  of  debt,  or  for  any  other  valuable  consideration,  so  as  to 
vest  in  the  purchaser  the  absolute  title,  or  even  mortgage  it,  which  is 
in  effect  a  sale,  to  secure  the  payment  of  a  debt." 

Judgment  reversed  and  the  cause  remanded  with  instructions  to 
enforce  the  mortgage  by  subjecting  the  mortgaged  property  to  the 
satisfaction  of  appellant's  claim. 

P.  B,  Thompson,  for  appellants.    Kyle  &  Poslon,  for  appellees. 


Daniel  Stevens  v.  Commonwealth. 

Criminal  Law — Larceny — Felonious  Intent. 

Felonious  intent  la  required  to  render  one  guilty  of  larceny  and 
one  who  without  felonious  intent  to  deprive  the  owner  of  his  property 
takes  possession  of  it  and  after  taking  possession  forms  the  design 
to  deprive  the  owner  of  the  property,  is  not  guilty  of  larceny,  because 
the  intent  to  steal  must  exist  at  the  time  of  taking  possession. 

APPEAL  FROM  OHIO  CRIMINAL  COURT. 
November  21,  1876. 

Opinion  by  Judge  Elliott: 

If  this  case  should  be  reversed  it  is  because  of  erroneous  instruc- 
tions of  the  court.  In  its  first  instruction  the  court  told  the  jury 
that  if  they  beHeved  from  the  evidence  beyond  a  reasonable  doubt 
that  the  defendant,  Daniel  S.  Stevens,  in  tlie  county  of  Ohio,  pre- 
vious to  th€  finding  of  the  indictment,  took  and  carried  away  with 
a  felonious  intent  one  keg:  oi  apple  brandy  of  the  value  of  over  ten 
dollars,  and  that  said  keg  of  brandy  was  the  property  of  James  F. 
Collins,  they  ought  to  find  him  guilty. 

Larceny  is  defined  to  be  the  wrongful  and  fraudulent  taking  and 
carrying  away  by  one  person  of  the  mere  personal  goods  of  another 
from  any  place  with  a  felonious  intent  to  convert  them  to  the  taker's 
use  and  make  them  his  property  without  the  consent  of  the  owner. 
Mr.  Baron  Parker  said  that  this  definition  of  larceny  Is  complete, 
without  explaining  the  meaning  of  the  word  felonious.  This,  how- 
ever, may  be  technical,  but  the  instruction  in  this  case  is  too  general. 
It  fails  to  define  what  taking  and  carrying  away  the  goods  of  another 
with  a  felonious  intent  means.  It  is  the  wrongful  and  fraudulent 
taking  of  the  goods  of  another  with  the  fraudulent  intent  to  convert 
the  goods  to  the  use  of  him  who  takes  them,  that  makes  him  guilty 
of  felony  and  liable  to  punishment  as  such. 


H.  B.  Phillips,  et  al.,  v.  J.  D.  Claybrook,  et  al.         8oi 

By  the  second  instruction  the  jury  are  told  that  no  difference  how 
the  appellant  got  possession  of  the  goods  if  at  the  time  he  took 
them  and  carried  them  away  his  intent  was  felonious,  he  was  guilty, 
leaving  the  jury  to  decide  what  was  a  taking  and  carrying  away  with 
a  felonious  intent,  unexplained  by  the  court;  and  therefore  said  in- 
struction was  misleading. 

By  the  third  instruction  the  court  does  not  require  the  jury  to  find 
that  the  property  taken  belonged  to  James  F.  Collins  as  charged 
in  the  indictment,  or  to  any  one  else,  but  makes  the  defendant's  guilt 
depend  upon  the  felonious  intent  of  taking  the  property  and  carry- 
ing it  away,  and  therefore  said  instruction  is  clearly  erroneous. 

The  rulings  of  the  court  in  refusing  instructions  offered  by  the 
counsel  for  defendant  were  correct,  for  the  reason  that  by  those  in- 
structions the  court  was  asked  to  tell  the  jury  that  unless  they  be- 
lieved from  the  evidence  that  at  the  very  instant  the  defendant  found 
the  brandy  he  intended  to  convert  it  to  his  own  use  they  should  find 
him  not  guilty. 

There  can  be  no  doubt  upon  principle  and  authority  that  if  the  de- 
fendant, at  the  time  he  took  possession  of  the  keg  of  brandy,  did  so 
without  any  fraudulent  intent  to  deprive  the  owner  of  it  or  convert  it 
to  his  own  use,  but  that  after  he  took  possession  of  it  he  changed  his 
mind  and  formed  the  design  of  so  converting  it  and  depriving  the 
owner  of  it,  he  is  not  guilty  of  larceny,  because  the  intent  to  steal  the 
article  must  exist  in  the  mind  of  the  accused  at  the  time  of  the  taking 
possession  thereof ;  but  the  instructions  refused  required  that  unless 
the  guilty  intent  to  convert  the  goods  existed  in  the  appellant's  mind 
when  he  first  saw  the  keg  of  brandy,  and  not  when  he  first  took  pos- 
session of  it,  he  was  entitled  to  an  acquittal,  and  were  properly  re- 
fused. The  judgment  is  reversed  and  cause  remanded  for  further 
proceedings  consistent  herewith. 

E,  D.  Walker,  for  appellant.    Moss,  for  appellee. 


H.  B.  Phillips,  et  al.,  v.  J.  D.  Claybrook,  et  al. 

Judicial  Sale — Measure  of  Damages  Where  Wrong  Property  Is  Sold. 

Where  the  sheriff  by  mistake  levies  upon  and  sells  property  which 
does  not  belong  to  the  defendant,  the  measure  of  damages  that  the 
owner  Is  entitled  to  recover  Is  the  value  of  the  property  with  Interest 
on  said  value  from  the  time  he  was  deprived  of  the  possession.  The 
owner  in  such  a  case  Is  not  entitled  to  vindictive  damages. 

51 


8o2  Kentucky  Opinions. 

APPEAL  FROM  WASHINGTON  CIRCUIT  COURT. 

November  28,  1876. 

Opinion  by  Judge  Elliott  : 

The  lower  court  did  not  err  in  refusing  to  permit  appellants  to 
read  the  evidence  of  Piper  contained  in  a  bill  of  exceptions  in  an- 
other cause,  and  question  him  as  to  whether  he  swore  in  said  cause 
what  by  said  bill  he  is  said  to  have  sworn.  The  court  permitted  ap- 
pellants to  ask  appellee,  Piper,  what  he  did  swear  in  said  other  case 
about  his  purchase  of  the  saw  mill,  and  that  said  statement  was  in- 
consistent with  his  evidence  on  the  trial  of  this  cause.  They  were 
permitted  to  fully  prove  by  Piper,  which  was  all  they  were  entitled 
to.  But  we  are  of  opinion  that  the  instructions  of  the  court  were  er- 
roneous to  appellants'  prejudice. 

By  instruction  C  the  jury  are  told  that  Bosley,  the  sheriff,  had  no 
right  to  bid  for  appellant,  Phillips,  or  any  one  else  at  a  sale  made  by 
himself  as  sheriff,  and  that  if  he  did  so  bid  for  Phillips,  and  that  said 
Phillips  claimed  the  property  by  virtue  of  said  bid,  then  the  law  was 
for  the  appellees,  and  the  jury  should  so  find.  It  will  be  seen  that 
this  instruction  makes  the  right  of  appellees  to  recover  depend  not 
upon  the  fact  that  they  were  the  owners  of  the  property  when  they 
brought  their  suit,  but  upon  the  fact  that  the  sheriff  had  bid  for  ap- 
pellant, Phillips,  at  the  execution  sale  of  the  property,  and  that  Phil- 
lips derived  his  title  through  said  bid. 

If  said  bid  so  made  by  the  sheriff  was  illegal,  the  only  effect  was 
that  no  sale  was  made,  and  it  would  have  been  his  duty  to  readvertise 
the  property  for  sale  in  satisfaction  of  Phillips's  execution.  The  fail- 
ure of  Phillips  to  acquire  title  by  his  bid  certainly  did  not  vest  any 
title  in  the  appellees,  and  yet  by  instruction  C  their  right  to  recover 
is  made  to  depend  upon  the  validity  of  Phillips's  bid. 

Instruction  D  is  also  erroneous.  By  it  the  jury  are  told  that  they 
should,  if  their  verdict  is  for  the  appellees,  find  such  damages,  in 
addition  to  the  value  of  the  property  in  dispute,  as  they  believe  from 
all  the  facts  and  circumstances  proven  they  are  entitled  to.  This 
instruction  was  misleading,  as  under  it  the  jury  may  have  found  even 
what  profits  they  imagined  appellees  could  have  made  by  running 
said  saw  mill  if  they  had  not  been  dispossessed  by  said  sheriff's  levy. 

The  true  criterion  of  damages  in  a  case  where  by  mistake  the  sher- 
iff levies  on  property  which  does  not  belong  to  the  defendant  in  the 
execution,  is  the  actual  value  of  the  property,  with  the  right  to  find 
the  interest  on  said  actual  value  from  the  time  said  owner  was  de- 


Lloyd  Clemments  v,  James  Green,  et  al.  803 

prived  of  the  possession  thereof,  by  way  of  damages.    In  such  a  case 
the  owner  is  not  entitled  to  smart  money  or  vindictive  damages. 

Wherefore  said  judgment  is  reversed  and  cause  remanded  for 
further  proceedings  consistent  with  this  opinion. 

Lindsey,  for  appellants.    Hays,  Brown  &  Lewis,  for  appellees. 


Lloyd  Clemments  v.  James  Green,  et  al. 

Real  Estate  Title— Failure  of  Title— Recovery  of  Purchase  Money. 

When  a  plaintiff  has  been  Instrumental  in  causing  the  property  of 
a  stranger  to  be  sold,  the  property  not  belonging  to  the  defendant, 
the  purchaser  at  such  sale  may  recover  back  the  price  paid  from  such 
plaintiff. 

APPEAL  FROM  WASHINGTON  CIRCUIT  COURT. 

November  25,  1876. 

Opinion  by  Judge  Elliott: 

Prudence  Brothers,  after  the  death  of  her  husband,  had  set  apart 
to  her  a  dower  interest  in  his  real  estate,  and  said  dower  interest 
contained  about  twenty-five  acres  located  in  Washington  county. 

A  man  by  the  name  of  Rhinehart,  having  obtained  a  judgment 
against  said  Prudence  Brothers,  caused  execution  to  be  issued  there- 
on and  had  the  same  levied  on  said  dower  tract  of  land,  and  the  same 
was  sold  and  bid  off  by  Rhinehart.  Afterwards  J.  R.  Whorton,  a 
judgment  creditor  of  said  Prudence  Brothers,  caused  an  execution  to 
be  levied  on  the  equity  of  redemption  of  the  said  Prudence  in  and  to 
said  tract  of  land,  and  purchased  the  same  at  a  sale  thereof  on  the 
2oth  day  of  April,  1868,  at  the  sum  of  $80.82. 

On  April  2,  a  Mr.  Selecman,  an  attomey-at-law,  as  he  proves, 
drew  up  a  deed  in  Whorton's  name  for  said  land,  which  was  exe- 
cuted by  the  sheriff  who  sold  the  land  on  said  Whorton's  execution, 
and  said  deed  was  duly  recorded,  and  shortly  thereafter  said  Selec- 
man, as  attorney  for  appellees,  caused  an  execution  to  issue  on  a 
judgment  in  their  favor;  and  Whorton  having  delivered  him  a  writ- 
ing surrendering  his  title  in  said  tract  of  land  for  sale,  said  Selecman 
delivered  said  writing  to  the  sheriff,  and  directed  him  to  levy  on 
said  land,  which  he  did,  and  the  same  was  sold  at  the  court  house 
door  at  Springfield,  Washington  county,  on  the  26th  of  May,  1876, 
and  the  appellant  became  the  purchaser. 


8o4  Kentucky  Opinions. 

It  appears  from  the  evidence  of  the  sheriff  that  all  the  information 
received  about  the  title  to  said  land  he  received  from  Mr.  Selecman, 
appellees'  attorney.  Mr.  Selecman  knew  at  the  time  he  wrote  the 
deed  to  Whorton  that  the  equity  of  redemption  sold  by  the  sheriff 
on  Whorton's  execution  was  of  Prudence  Brothers's  dower  or  life  es- 
tate in  the  land  afterwards  sold  on  the  execution  of  appellees ;  and  he 
could,  if  he  had  asked  him,  have  learned  from  Whorton  that  he  had 
never  paid  Rhinehart  the  sum  bid  by  him  for  said  land  when  sold 
under  his  execution,  and  that  consequently  Whorton  had  no  right  to  a 
deed  to  said  tract  of  land ;  but  notwithstanding  Selecman  either  did 
know  or  could  have  known  by  the  least  inquiry  that  Whorton  had  no 
title,  he  wrote  a  deed  to  Whorton,  which  the  sheriff  executed,  and 
then  he  procured  from  Whorton  the  written  surrender  of  the  said 
land  to  the  sheriff,  to  be  levied  on  and  sold  in  satisfaction  of  his 
client's  execution  debts. 

At  the  sale  the  sheriff  proclaimed  to  the  bidders  that  the  title  was 
good ;  and  he  swears  that  all  the  proclamations  as  to  title  were  al- 
thorized  by  Selecman,  and  all  his  knowledge  of  the  title  he  got  from 
Selecman.  At  the  sale  thus  made  the  appellant  bought  the  land 
at  the  price  of  $124.44;  and  shortly  after  his  purchase  and  before  he 
gave  the  sale  bond  he  consulted  Selecman,  who  told  him  he  had  a 
good  bargain,  and  he  then  executed  said  bond.  On  the  26th  of 
June,  1873,  he  paid  off  said  bond,  not  having  yet  learned  that  he  had 
acquired  no  title  by  his  purchase. 

As  a  general  principle,  the  plaintiff  in  an  execution  is  not  responsi- 
ble when  the  title  fails  to  property  sold  under  his  execution,  but  to 
this  there  are  exceptions.  In  Sanders  v.  Hamilton,  3  Dana  550,  it 
was  held  that  "If  a  plaintiff  in  an  execution  has  been  instrumental 
in  causing  the  property  of  a  stranger  to  be  sold,  we  can  see  no  prin- 
ciple of  reason  or  of  law  that  would  exonerate  him  from  responsi- 
bility to  the  purchaser."  The  exhibition  and  sale  of  property  by  an 
individual  is  regarded  by  law  sufficient  to  make  him  a  warrantor  of 
the  title,  and  we  see  no  principle  which  would  exempt  him  from 
liability  when  he  has  been  instrumental  in  effecting  the  same  object 
by  color  of  execution.  His  execution  affords  him  no  warrant  to 
levy  upon  the  property  of  a  stranger,  and  if  he  does  it  or  procures  it 
to  be  done  he  is  guilty  of  an  abuse  of  the  process  of  the  court  which 
cannot  sanctify  the  deed  or  place  him  on  better  ground  than  if  he 
sold  or  procured  the  sale  to  be  made  without  such  authority.  Now, 
if  either  of  the  appellees  had  directed  the  officer  to  make  the  levy  or 
induced  a  bidder  to  buy  by  representing  that  Whorton's  title  was 


W.  B.  HosicK  V.  Elizabeth  Trabue.  805 

goody  there  can  be  no  doubt  but  that  he  would  be  responsible  to  ap- 
pellant to  the  extent  he  has  been  damaged,  and  the  fact  that  the  levy 
was  directed  by  appellee's  attorney,  and  that  he  represented  the  title 
of  Whorton  to  be  good,  was  as  binding  on  appellees  as  if  made  by 
them.  The  attorney,  Mr.  Selecman,  was  the  agent  of  the  appellees 
for  the  collection  of  their  debt,  and  he  swears  himself  that  his  agency 
continued  till  the  debt  of  his  principals  was  paid  by  the  appellant. 

In  the  case  heretofore  referred  to  of  Sanders  v.  Hamilton,  the 
court  rested  its  judgment,  against  the  principal,  mainly  on  the 
ground  that  his  attorney  had  been  guilty  of  an  abuse  of  the  process 
of  the  court  by  directing  the  levy  and  sale  of  property  that  did  not 
belong  to  the  defendant  in  the  execution.  As  Selecman  was  appel- 
lee's attorney  and  directed  the  levy  and  sale  of  the  land  of  Whorton, 
and  represented  Whorton's  title  to  be  good,  when  the  deed  to 
Whorton  for  the  land  which  he  wrote  himself  only  pretended  to  vest 
in  him  a  life  estate,  and  as  appellant  by  reason  of  the  levy  and  sale 
became  purchaser,  and  as  Whorton  had  no  title  to  the  land,  we  are  of 
opinion  that  the  said  appellant  is  entitled  to  a  judgment  against  the 
appellees  for  the  amount  he  held  and  afterwards  paid  for  the  land, 
with  interest  from  the  time  it  was  so  paid.  The  judgment  is  re- 
versed and  cause  remanded  for  judgment  in  conformity  to  this 
opinion. 

Brown  &  Lewis,  for  appellant.    L.  R.  Thurman,  for  appellees. 


W.  B.  HosiCK  V,  Elizabeth  Trabue. 

Limitations — Statute  of  Limitations  a  Defense — Pleading. 

The  statute  of  limitations  is  a  matter  of  defense  and  if  relied  upon 
must  be  pleaded  by  the  defendant,  and  unless  the  petition  shows  on 
its  face  not  only  that  the.  action  is  barred  by  him  but  that  the  de- 
fendant is  not  within  any  of  the  exceptions  mentioned  in  the  statute, 
a  demurrer  will  not  be  sustained  to  it. 

APPEAL  FROM  LIVINGSTON  CIRCUIT  COURT. 

November  28»  1876. 

Opinion  by  Judge  Elliott: 

The  deed,  the  execution  of  which  it  is  alleged  was  procured  by  the 
fraud  of  appellee,  was  executed  and  delivered  in  1864,  and  this  suit 
was  not  brought  till  1875 ;  and  as  more  than  ten  years  have  elapsed 
since  the  deed  was  executed,  and  as  this  appears  on  the  face  of  ap- 


8o6  Kentucky  Opinions. 

pellant's  petition,  it  is  contended  that  the  petition  did  not  show  a  sub- 
sisting cause  of  action ;  and  it  was  the  duty  of  the  court  to  sustain  a 
demurrer  thereto,  which  was  done  and  the  action  dismissed.  In  the 
case  of  Board  v.  Jolly,  5  Bush  86,  this  court  held  that  the  statute  of 
h'mitations  is  a  matter  of  strict  defense,  and  must,  if  relied  on,  be 
pleaded  by  the  defendant  in  all  actions,  unless  the  petition  shows  that 
the  action  is  not  only  barred  by  time,  but  that  the  defendant  is  not 
within  any  of  the  exceptions  mentioned  in  the  statute,  when  any  ex- 
ceptions are  contained  in  the  statute  which  prescribes  the  limitation. 
See  also.  Chiles  v,  Drake,  2  Met.  146 ;  Rankin  v.  Turney,  2  Bush  555. 

It  is  true,  as  appellee  contends,  that  the  chancellors  of  England 
sustained  demurrers  when  the  complainant  by  his  own  bill  shows 
that  he  had  been  guilty  of  great  laches  in  bringing  his  suit,  or  when  it 
was  an  old  stale  claim  that  a  court  of  equity,  on  complainant's  own 
showing,  would  not  enforce ;  but  this  was  not  enforcing  any  statute 
of  limitations ;  it  was  a  refusal  to  investigate  the  merits  of  an  old  stale 
demand. 

The  defense  in  this  suit  as  indicated  by  appellee  is  that  no  suit 
was  brought  to  set  aside  the  deed  for  fraud  within  ten  years  of  its 
execution  and  delivery  to  appellee,  H.  A.  Trabue,  which  is  purely 
a  statute  of  limitations  of  the  legislature  of  our  own  state.  Mr. 
Chitty  in  his  work  on  pleadings  says  that  the  statute  of  limitations 
is  a  matter  of  defense,  which  must  always  be  pleaded ;  and  when  the 
party  sued  does  not  rely  on  it,  it  is  the  duty  of  the  court  to  render 
judgment  against  him. 

But  so  far  as  this  state  is  concerned,  the  law  has  long  since  been 
settled  by  adjudications  that  the  defense  of  the  statute  of  limitations 
must  be  made  by  plea  or  answer,  and  not  by  demurrer.  Wherefore 
the  judgment  is  reversed  and  cause  remanded  with  directions  to 
overrule  the  appellee's  demurrer,  and  for  further  proceedings  con- 
sistent herewith. 

Bush  &  Hendrick,  for  appellant. 

I.  H.  Trabue,  Hord  &  Trabue,  for  appellee. 


James  T.  Tate  v.  J.  A.  Elliott. 

Executions — Levy  and  Collection  of  Executions. 

When  an  execution  is  issued  and  a  levy  made  by  the  sherifl  bat  no 
effort  made  to  sell  the  property  in  a  reasonable  time,  the  execution 
plaintiff  should  proceed  against  the  sheriff  and  where  such  plaintiff 
fails  to  pursue  sueli  a  remedy  within  a  reasonable  time,  other  credr 
iters  may  refuse  to  recognise  the  first  execution* 


James  T.  Tate  v,  J.  A.  Eluott.  807 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

November  28,  1876. 

Opinion  by  Judge  Cofer: 

The  principles  announced  in  the  case  of  Deposit  Bank  of  Cynthi- 
ana  v.  Berry's  Adm'r,  2  Bush  236,  seem  to  us  to  be  decisive  of  this 
case.  It  is  true  there  was  no  venditionis  issued  in  that  case  between 
November  2,  1861,  and  February  8,  1865,  a  period  of  three  years  and 
three  months;  but  in  other  respects  that  case  is  Hke  this  in  every 
essential  particular,  and  the  venditionis  issues  cannot  make  the  case 
any  stronger  for  the  appellant  than  it  would  have  been  if  they  had 
not  been  issued  at  all.  It  is  not  pretended  that  they  were  issued  with 
any  intention  to  make  sale  of  the  property,  and  it  is  virtually,  if  not 
expressly  conceded  that  the  sale  was  deferred  to  enable  the  debtor 
to  discharge  the  debts  without  a  sale  of  the  property.  During  all 
the  time  from  March,  1872,  to  February,  1874,  a  period  of  twenty- 
three  months,  the  debtor  retained  possession  of  the  property,  and  on 
the  2ist  of  May,  1872,  when  there  was  no  process  in  the  officer's 
.  hands,  a  payment  of  $350  was  made  without  a  sale  of  any  part  of 
the  property  levied  on. 

These  facts  satisfy  us  that  the  process  of  the  court  was  not  used 
in  good  faith  to  coerce  payment,  but  to  place  the  property  in  a  posi- 
tion where  it  could  be  resorted  to  as  a  last  resort  in  case  other  cred- 
itors should  seek  to  subject  it,  and  in  the  meantime  to  allow  its  use 
to  be  enjoyed  by  the  debtor.  Such  use  of  legal  process  ought  not  to 
be  encouraged ;  to  do  so  would  be  to  open  a  wide  door  for  colljusion 
and  fraud. 

The  safer  and  better  rule  is  to  require  the  execution  plaintiff  to 
cause  a  sale  to  be  made  in  a  reasonable  time  after  the  levy,  and  in 
case  the  sheriff  fails  to  make  a  sale,  to  proceed  against  him  to  compel 
him  to  do  so,  and  upon  the  failure  of  the  plaintiff  to  pursue  these 
remedies  within  a  reasonable  time,  to  refuse  to  recognize  his  levy  as 
valid  against  other  creditors  who  are  pursuing  legal  remedies  against 
the  common  debtor. 

There  can  be  no  room  to  doubt  that  the  delay  in  this  case  was  un- 
reasonable, and  as  before  remarked  that  the  process  was  used  not  in 
good  faith  to  coerce  payment,  but  as  the  means  of  giving  indulgence 
to  the  debtor,  while  he  enjoyed  the  use  of  the  property  which,  if  the 
levy  be  now  held  to  be  effectual,  was  shielded  from  other  creditors. 
It  is  true  the  fi.  fa.'s  and  venditionis  were  returned,  and  that  although 
the  property  was  situated  in  a  distant  county,  all  persons  had  con- 


8o8  Kentucky  Opinions. 

structive  notice  of  the  levy,  but  this  only  proves  the  necessity  for  re- 
quiring greater  promptness  than  was  used  in  this  case  in  order  to 
make  the  levy  available  against  other  creditors. 

We  do  not  regard  the  fact  that  the  appellee's  attachment  was  levied 
subject  to  the  levy  under  the  executions  as  fatal  to  his  right.  He 
could  not  control  the  form  of  the  sheriff's  return;  nor  could  the 
sheriff  by  returning  that  he  had  made  the  levy  subject  to  the  former 
levy,  renew  that  levy  or  give  it  any  legal  efficacy  it  did  not  have  be- 
fore, and  would  not  otherwise  have  had. 

The  conduct  of  the  appellant  and  his  assignors  was  well  calculated 
to  conceal  from  the  community  the  fact  that  there  was  a  subsisting 
levy,  and  those  who  may  have  known  it  at  the  time,  especially  in  view 
of  the  advertisements  in  April,  May  and  July,  1872,  the  failure  to 
sell,  and  the  continued  possession  of  the  property  by  the  debtor,  were 
authorized  to  conclude  that  the  debts  had  been  paid.  Wherefore  the 
judgment  is  oMrtned, 

Muir,  Bijou  &  Davie  for  appellant,    A.  C.  Buckner,  for  appellee. 


Ella  Smith's  G'd'n,  et  al.,  v.  Robert  Calvin,  et  al. 

Suit  to  Quiet  Title — ^Averment  of  Ownership. 

A  petition  to  quiet  title  is  good  which  avers  title  in  an  ancestor 
and  that  it  was  vested  in  plaintiff  by  his  wilL 

Statute  of  Limitations. 

The  statute  of  limitations  must  be  set  up  if  relied  upon,  bj  plea 
and  cannot  be  taken  advantage  of  by  demurrer  where  the  only  defect 
in  plaintiff's  petition  is  that  his  cause  is  barred  by  time. 

APPEAL  FROM  TAYLOR  CIRCUIT  COURT. 

November  29,  1876. 

Opinion  by  Judge  Elliott  : 

The  appellants  claim  lots  Nos.  12  and  13,  in  Campbellsville,  under 
the  will  of  their  grandfather,  and  the  appellees  claim  it  under  a  mort- 
gage from  the  said  ancestor  and  a  continued  adverse  possession  for 
over  fifteen  years.  The  appellants  demurred  to  the  answer  of  ap- 
pellees, and  the  court  sustained  the  demurrer,  not  to  the  answer,  but 
to  the  appellants'  petition,  and  whether  the  demurrer  was  properly 
sustained  is  the  only  question  for  our  consideration. 

As  appellants  aver  title  in  their  ancestor,  and  that  it  was  vested  in 


City  of  Paducah  v.  A.  S.  Jones's  Adm'x.  809 

them  by  his  will,  and  as  they  do  not  even  state  that  appellees  had 
been  in  possession  fifteen  years,  it  seems  to  this  court  that  the  peti- 
tion stated  a  good  cause  of  action.  The  statute  of  limitations  must 
be  set  up  if  relied  on  by  plea,  and  cannot  be  taken  advantage  of  by 
demurrer  where  the  only  defect  in  plaintiff's  petition  is  that  his 
cause  of  action  is  barred  by  time. 

Wherefore  the  judgment  is  reversed  with  directions  to  overrule 
the  demurrer,  and  for  further  proceedings  consistent  with  this 
opinion. 

D.  G.  Mitchell,  /.  N.  &  D,  W.  Lindsey,  for  appellants. 
William  Howell,  for  appellees. 


City  of  Paducah  z\  A.  S.  Jones's  Adm'x. 

City  Improvements — Contract. 

One  who  contracts  with  the  city  has  a  right  to  do  so  upon  the  faith 
of  the  fact  that  its  council  had  not  disobeyed  the  law,  and  where  the 
costs  of  public  Improvements  made  by  him  thereunder  cannot  be  col- 
lected from  property  owners  because  of  a  faulty  ordinance  he  can 
look  to  the  city  to  pay  him. 

APPEAL  FROM  McCRACKBN  CIRCUIT  COURT. 

December  1,  1876. 

Opinion  by  Judge  Lindsay  : 

When  Jones  contracted  with  the  city  to  improve  the  street,  he 
agreed  to  look  to  the  property  holders  for  compensation.  He  did  not 
expect  to  look  to  the  city,  because  he  knew  that  the  city  had  power 
to  charge  the  costs  of  such  work  upon  the  property  improved.  The 
recitals  in  the  ordinance  and  the  contract  that  the  city  was  to  be  lia- 
ble for  no  part  of  the  cost  of  the  work,  were  but  the  recitals  of  that 
which  both  the  city  and  the  contractor  knew  to  be  the  express  pro- 
vision of  law,  and  Jones  would  have  been  bound  to  look  to  the  prop- 
erty owners,  in  the  same  way,  had  these  recitals  been  omitted.  But 
neither  the  ordinance  nor  the  contract  bound  Jones  to  do  the  work 
for  nothing,  in  case  it  should  turn  out  that  the  city  council  had  failed 
to  keep  its  journal  in  the  manner  the  law  directs,  and  by  such  failure 
had  made  it  impossible  for  him  to  enforce  the  contract  against  the 
property  owners.  If  a  provision  to  this  effect  had  been  incorporated 
cither  in  the  ordinance  or  contract,  then  Jones  would  have  had  notice 
of  the  city's  intention,  and  would  doubtless  have  gone  behind   the 


8io  Kentucky  Opinions. 

municipal  law,  which  was  valid  on  its  face,  and  made  examination 
as  to  whether  the  city  council  had  followed  the  law,  in  passing  it,  and 
in  keeping  a  record  of  its  proceedings. 

Jones  had  the  right  to  contract  with  the  city  upon  the  faith  of  the 
fact  that  its  council  had  not  disobeyed  the  law,  and  he  cannot  be  held 
to  have  had  notice  of  the  council's  defeat,  nor  to  have  agreed  to  re- 
lease the  city  from  the  legal  consequences  of  its  neglect,  merely  be- 
cause the  effect  of  its  organic  law  when  obeyed,  was  recited  in  the 
ordinance  and  in  the  contract. 

The  judgment  of  the  court  below  is  aMrmed, 

L,  D.  Husbands,  for  appellant.     P.  D,  Yeiser,  for  appellee. 


Mary  C.  Paul,  et  al.,  v.  Hugh  W.  Paul. 

Mental  Capacity  of  Defendant — Service  of  Process. 

Where  a  defendant  before  a  suit  was  brought  against  him  had  been 
found  to  be  of  unsound  mind  and  sent  to  the  lunatic  asylum  and  there' 
is  no  evidence  that  he  was  served  with  process  or  that  a  committee 
or  guardian  was  appointed,  it  was  error  to  render  Judgment  against 
him. 


APPEAL  FROM  WOODPORD  COURT  OP  COMMON  PLEAS. 

December  1,  1876. 
Opinion  by  Judge  Elliott: 

From  the  pleadings  and  proof  in  this  cause  it  appears  that  at  the 
bringing  of  this  suit  and  at  this  time  Thomas  W.  Paul,  one  of  the 
appellants,  was  and  is  a  lunatic,  and  that  before  this  suit  was  brought 
he  had  been  found  to  be  of  unsound  mind  and  sent  to  the  lunatic 
asylum  at  Lexington,  Ky.,  where  he  has  been  confined  ever  since,  and 
there  is  no  evidence  in  this  record  either  that  he  has  been  served  with 
process  or  that  a  committee  or  guardian  was  appointed  in  the  court 
below  to  defend  for  him,  and  consequently  it  was  error  to  render 
judgment  against  him. 

Sec.  60,  Civil  Code,  declares  that  no  judgment  can  be  rendered 
against  a  person  of  unsound  mind  till  after  defense  either  by  com- 
mittee or  guardian  ad  litem,  appointed  by  the  court,  and  that  the  ap- 
pointment of  his  guardian  to  defend  shall  not  be  made  till  after  the 
service  of  the  summons  in  the  action  as  required  by  the  code.  For 
this  error  alone  the  judgment  is  reversed,  and  cause  remanded  with 


.   Elizabeth  Heinrich,  et  al.,  v,  Nicholas  Booker,  et  al.      8ii 

instructions  to  bring  Thomas  W.  Paul  before  the  court,   and   for 
further  proceedings  consistent  herewith. 

Porter  &  Wallace,  for  appellants, 
Marshall  &  McLeod,  for  appellee. 


Elizabeth  Heinrich,  et  al.,  v.  Nicholas  Booker,  et  al. 

Continuance  of  Action. 

The  action  of  the  trial  court  In  refusing  a  continuance  will  not  be 
disturbed  except  for  an  abuse  of  discretion. 

Notes  and  Interest. 

Where  the  makers  of  a  note  agree  to  pay  ten  per  cent  Interest  from 
date  until  the  note  is  due  there  is  no  promise  to  pay  such  rate  after 
due  and  the  holder  can  only  recover  six  per  cent,  interest  after 
maturity. 

APPEAL  FROM  GRANT  CIRCUIT  COURT. 

December  2,  1876. 

Opinion  by  Judge  Elliott  : 

The  first  question  that  arises  upon  this  record  is  whether  the  cir- 
cuit court  abused  a  sound  discretion  in  overruling  appellants'  motion 
for  a  continuance.  It  appears  that  the  female  appellant  had  made  the 
same  motion  based  on  similar  grounds,  and  had  been  successful  at 
the  term  next  preceding  the  trial  of  this  suit,  and  we  are  of  opinion 
that  the  lower  court  exercised  a  proper  discretion  in  overruling  the 
motion  for  a  continuance. 

The  proof  in  this  record  is  conclusive  that  female  appellant  ac- 
knowledged all  the  mortgages  before  the  clerk,  and  that  she  did  so 
without  coercion  by  any  one  and  in  the  absence  of  her  husband.  But 
it  is  insisted  that  her  amended  answer  and  cross-petition  has  not  been 
replied  to  by  any  of  the  mortgagees  except  Booker  and  wife,  and 
therefore  should  have  been  taken  for  confessed,  and  that  its  allega- 
tion makes  out  a  good  defense. 

No  reply  was  necessary  to  the  amended  answer  of  appellants. 
Said  amendment  only  denied  the  right  of  appellees  to  recover  be- 
cause the  mortgages  had  been  obtained  from  her  by  duress,  threats, 
etc.  These  allegations  under  the  Code  did  not  have  to  be  replied  to  to 
put  them  in  issue,  and  consequently  judgment  for  the  amount  due 
the  mortgagees  would  have  been  proper,  but  we  are  of  opinion  that 


8i2  Kentucky  Opinions. 

the  court  erred  to  appellants'  prejudice  in  adjudging  to  Cunningham, 
Collins  and  Davidson  interest  at  the  rate  of  ten  per  cent,  after  their 
debts  fell  due. 

The  notes  to  Cunningham  are  due  one  and  two  years  after  date 
with  ten  per  cent,  interest  from  date.  The  note  to  Collins  was  made 
payable  about  a  year  after  date  with  ten  per  cent,  interest,  and  the 
note  to  Davidson  was  made  payable  about  two  years  after  date  with 
ten  per  cent,  interest.  The  appellants  only  promised  to  pay  ten  per 
cent,  interest  till  the  claims  were  due,  and  then  he  promised  to  pay 
the  whole  amount  of  them,  and  as  he  did  not  contract  to  pay  ten  per 
cent,  interest  after  the  claims  were  due  the  appellees  can  only  re- 
cover six  per  cent,  after  that  time.  Booker  and  wife  are  entitled  to 
ten  per  cent.,  as  the  appellants  promised  them  ten  per  cent  till  their 
debt  was  paid. 

For  these  errors  alone  the  judgment  is  reversed  and  cause  re- 
manded for  judgment  in  conformity  to  this  opinion: 

7.  /.  Landrum,  for  appellants, 

/.  Af.  Collins,  E,  H,  Smith,  for  appellees. 


Morgan,  Thomas  &  Co.  v.  Bank  of  Rome. 

Assignment  of  Personal  Property. 

Where  a  bona  fide  assignment  of  personal  property  is  made  to  a 
bank  to  secure  a  debt  owing  to  the  bank  from  the  assignor,  the  bank 
has  the  right  to  the  proceeds  of  a  sale  of  the  property  sold  by  a  com- 
mission merchant  as  against  the  assignor  or  his  creditors. 

Attachment  by  Creditors. 

Creditors  who  attach  personal  property  In  the  hands  of  a  commis- 
sion man  for  sale  that  has  been  assigned  to  a  bank  as  security  for 
a  debt,  acquire  but  an  equity  by  the  seizure  of  the  property,  and  the 
bank  haying  an  older  equity  under  the  assignment  has  a  better  rlfl^t 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

December  2,  1876. 

Opinion  by  Judge  Cofer: 

We  incline  to  the  opinion  that  the  assignment  to  the  Bank  of 
Rome  gave  to  it  an  equitable  lien  on  the  iron  in  the  possession  of 
Hull,  subject,  of  course,  to  his  prior  right  to  be  reimbursed  for  ad- 
vances, charges,  etc.    This  case  is  not  analogous  to  the  case  of  Phil- 


Morgan,  Thomas  &  Co.  v.  Bank  of  Rome.  813 

lips,  Reynolds  &  Co,  v.  Barbaroux,  2  B.  Mon.  89;  or  Tiernan  v. 
Jackson,  s  Pet.  580. 

In  the  former  case  the  assignment  was  of  only  a  part  of  the  pro- 
ceeds of  the  bagging  and  rope,  "the  consignor,  Bakewell,  retaining 
the  principal  interest  in  the  consignment."  But  even  if  that  had  not 
been  the  case,  and  it  be  conceded  that  that  case  is  an  authority  for 
holding  that  the  assignee  had  no  right  to  control  the  consignee  in 
making  sale  of  the  consignment,  it  would  not  follow  that  the  as- 
signee had  not  such  an  interest  in  the  property  as  would  have  ena- 
bled him  to  prevent  the  consignor  or  his  creditors  from  seizing  the 
goods  and  selling  or  disposing  of  them  so  as  to  defeat  his  right  to 
the  proceeds.  The  question  there  was  not  whether  the  assignee  took 
any  interest  at  all  in  the  goods,  but  whether  he  took  such  interest  as 
not  only  gave  him  a  right,  but  made  it  his  duty,  as  between  himself 
and  his  assignor,  to  interfere  and  control  the  action  of  the  consignee 
in  making  sales.  There  is  certainly  an  appreciable  distinction  between 
the  absolute  right  and  duty  to  take  control  of  a  consignment,  a  part 
of  the  proceeds  of  which  is  placed  as  collateral  security,  and  a  right 
to  interpose  to  prevent  the  assignor,  or  what  is  the  same  thing,  to 
prevent  his  attaching  creditors  from  defeating  the  security  by  putting 
it  out  of  the  power  of  the  consignee  to  make  sales  ,so  as  to  realize 
proceeds  to  which  the  assignee  is  entitled  by  the  letter  of  the  assign- 
ment. 

It  seems  to  us  that  it  would  be  going  quite  too  far  to  say  that  al- 
though the  bank  had  an  unquestioned  right  to  the  balance  of  the  pro- 
ceeds of  the  sales  of  the  iron,  that  the  assignor  might  have  defeated 
its  right  by  instructing  the  consignee  to  sell  only  so  much  as  would 
reimburse  him  and  to  hold  the  residue  subject  to  the  orders  of  the 
consignor.  We  cannot  doubt  but  that  if  such  an  order  had  been 
given  the  bank  might  have  obtained  relief  by  a  proceeding  to  subject 
the  iron  to  sale.  If  we  are  right  in  that  conclusion,  then  it  follows 
that  the  appellants,  who  have  no  other  or  greater  right  than  the  as- 
signor had,  cannot  defeat  the  claim  of  the  bank  by  attaching  the  iron. 

Tiermn  v.  Jackson,  was  based  upon  facts  very  similar  to  the  facts 
of  this  case,  but  that  was  an  action  of  assumpsit  for  money  had  and 
received,  to  recover  from  Tiernan  the  money  received  for  the  sale  of 
the  tobacco  under  attachment.  Jackson  did  not  have  the  legal  title 
to  the  tobacco  and  consequently  could  not  maintain  the  action. 
There  was  nothing  in  that  case  requiring,  or  even  rendering  it  proper, 
that  the  court  should  express  an  opinion  on  the  question  whether  or 


8i4  Kentucky  Opinions. 

not  he  had  an  equitable  lien  on  the  tobacco,  for  conceding  that  he  had, 
the  result,  in  an  action  at  law,  must  have  been  the  same. 

The  assignment  to  the  bank  of  the  balance  of  the  proceeds  of  the 
iron,  after  satisfying  the  claim  of  Hull,  was  intended  to  secure  the 
debt  due  to  the  bank  from  the  assignor,  and  gave  the  bank  a  right  to 
such  proceeds,  and  the  right  to  the  proceeds  carried  with  it  the  right 
to  have  the  iron  protected  from  any  act  on  the  part  of  the  assignor, 
the  effect  of  which  would  be  to  defeat  the  right  to  the  proceeds.  The 
iron  was,  therefore,  beyond  the  control  of  the  assignor,  and  after  no- 
tice of  the  assignment,  Hull  held  it  subject  to  the  terms  of  the  writ- 
ing, and  if  he  had  disposed  of  it  so  as  to  defeat  the  claim  of  the  bank 
he  would  have  been  liable  to  it  for  the  loss.  Having  a  right  to  the 
proceeds,  and  consequently  a  right,  enforcible  against  both  the  as- 
signor and  Hull,  to  demand  that  the  iron  should  not  be  so  disposed 
of  as  to  put  the  proceeds  beyond  its  reach,  the  bank  had  an  equitable 
interest  in  the  iron.  The  appellants  acquired  but  an  equity  by  the 
seizure  of  the  iron  under  the  attachments.  Newby  &  Taylor  v.  Hill 
&  Million,  2  Met.  530..  The  bank  having  an  older  equity  under  the 
assignment  had  the  better  right. 

We  entirely  agree  with  the  cases  cited  by  counsel  that  in  order  to 
make  a  valid  assignment  the  assignor  must  not  retain  control  over 
the  thing  or  fund  assigned ;  but  we  do  not  concur  in  the  conclusion 
that  the  assignor  in  this  case  retained  control  of  the  iron.  The  whole 
balance  of  the  proceeds,  after  satisfying  Hull,  was  assigned  to  the 
bank,  and  the  assignor  could  not  thereafter  dispose  of  the  iron  so  as 
to  put  its  proceeds  beyond  the  reach  of  the  bank,  unless  the  rights  of 
innocent  purchasers  had  intervened. 

As  respects  the  charge  of  fraud  in  the  assignment,  we  need  only 
remark  that  the  debt  to  the  bank  is  clearly  proved,  and  that  the  fact 
that  the  assignment  may  have  been  made  with  the  design  to  prefer 
the  bank  over  other  creditors  does  not  render  it  fraudulent.  Nor 
does  the  fact  that  a  greater  sum  was  assigned  than  was  actually  due 
prove  fraud  in  fact.  It  may  be  a  circumstance  tending  to  establish 
the  charge  of  fraud,  but  is  not  alone  sufficient  for  that  purpose.  That 
Cathran  who  made  the  assignment  was  president  of  the  bank  fur- 
nishes strong  reason  for  supposing  that  his  object  was  to  prefer  the 
bank  to  the  other  creditors  of  H.  D.  Cathran  &  Co.,  but  no  reason 
whatever  for  concluding  that  the  transaction  was  actually  fraudulent. 
It  is  not  important  to  inquire  whether  the  firm  of  H.  D.  Cathran  & 
Co.  was  a  bona  fide  partnership  or  not.  No  matter  how  much  fraud 
there  may  have  been  in  its  composition,  or  in  the  conduct  of  its  busi- 


E.  C.  Curd  v.  Commonwealth  Mutual  Life  Ins.  Co.      815 

ness,  the  appellants  can  reap  no  advantage  on  that  account,  unless 
they  can  connect  the  bank  with  fraud  in  the  transaction  out  of  which 
this  contest  arose,  of  which  there  is  no  evidence  in  the  record. 

Upon  a  careful  consideration  of  the  whole  case  we  are  of  the  opin- 
ion that  it  was  correctly  decided,  and  the  judgment  is  affirmed, 

Armstrong  &  Young,  for  appellants. 
William  Reinecke,  for  appellee. 


E.  C.  Curd  v.  Commonwealth  Mutual  Life  Ins.  Co. 

Insurance  Policy — Time  of  Payment  of  Premium — Construction. 

The  terms  of  a  contract  of  insurance  are  to  be  determined  by  an  ex- 
amination of  the  application  and  the  policy  and  the  receipt  delivered 
by  the  company  to  the  assured. 

Waiver  by  Company. 

The  insurance  company  may  waive  the  payment  of  a  premium 
when  due  or  it  may  insist  that  the  contract  of  insurance  had  ter- 
minated by  the  failure  to  pay  premium  when  due.  The  company  eould 
not  compel  the  insured  to  keep  the  policy  alive  by  the  payment  of 
the  premium  and  the  insured  could  not  compel  the  company  to  accept 
payments  after  the  time  it  became  due. 

APPEAL  FROM  JEFFERSON  COURT  OF  COMMON  PLEAS. 

December  2,  1876. 

Opinion  by  Judge  Lindsay  : 

In  order  to  ascertain  the  exact  terms  of  the  contract  of  insurance, 
the  application  signed  by  the  insured,  the  policy,  and  the  receipt  de- 
livered by  the  company  to  him,  must  all  be  considered  together.  It 
is  clearly  and  conclusively  proved  that  a  receipt  for  this  first  annual 
premium,  was  delivered  to  the  insured  at  the  same  time  with  the 
policy.  Appellee  was  not  precluded  from  proving  that  both  the  re- 
ceipt and  policy  were  delivered  on  a  day  different  from  that  averred 
in  the  petition.  The  averment  of  the  particular  day  of  the  delivery 
was  immaterial  as  to  the  substantial  issues  of  the  case,  and  the  appel- 
lee was  not  bound  to  deny  it.  When  these  three  papers  are  consid- 
ered together,  it  is  clear  that  the  annual  premium  of  $172.50  was  to 
be  paid  in  two  semi-annual  installments  and  that  the  increase  of  the 
premium  for  the  beginning  of  the  year  was  intended  to  compensate 
the  company  for  allowing  the  insured  six  months  time  within  which 
to  pay  the  second  semi-annual  installment. 


8i6  Kentucky  Opinions. 

It  was  expressly  agreed  in  the  face  of  the  policy  that  if  any  pre- 
mium or  installment  of  premium  should  not  be  paid  when  due,  then 
the  policy  should  cease  and  determine.  The  stipulation  with  re- 
gard to  the  payment  of  premiums  during  the  lifetime  of  the  insured 
applied  only  to  the  first  premium,  if  to  be  paid  in  full,  or  to  the  first 
installment  thereof,  if  to  be  paid  in  installments. 

It  is  not  pretended  that  the  second  installment  of  the  first  yearly 
premium  was  paid  or  tendered  until  long  after  it  was  due.  The  fact 
that  the  general  agent  of  the  company  was  willing  to  receive  payment 
and  insisted  upon  the  insured  paying  said  installment  after  it  was 
part  due,  did  not  make  it  obligatory  upon  the  insurance  company  to 
waive  its  right  to  insist  that  the  contract  had  ceased  and  determined 
after  the  insured  become  fatally  sick. 

The  company  could  not  compel  the  appellant  or  her  agent  to  keep 
the  policy  alive  by  the  payment  of  the  installment  in  question,  and 
neither  could  they  compel  it  to  accept  payments  after  the  time  at 
which  it  fell  due.  From  that  time  forward  it  was  a  matter  of  elec- 
tion with  the  insurer,  as  well  as  with  the  insured.  The  instruction  of 
the  court  below  accords  with  this  view  of  the  law  of  the  case,  and 
those  asked  by  appellant  conflict  with  it. 

The  judgment  appealed  from  is  afhrmed. 

W.  R,  Abbott,  for  appellant.    Bullock  &  Anderson,  for  appellee. 


J.  N.  Jones  v,  Parmelia  Alexander,  et  al. 

Promissory  Note — ^Alteration  After  Execution. 

Where  a  memorandum  Is  made  at  the  bottom  of  a  note  by  one  of 
the  makers,  below  the  signatures  that  "Interest  on  this  note  10  per 
cent"  it  is  not  an  alteration  of  the  note  and  is  no  part  of  the  note 
and  the  holder  is  entitled  to  recover  the  amount  of  said  note  accord- 
ing to  the  stipulations  made  in  the  body  thereot  the  added  words 
being  no  part  of  said  note. 

APPEAL  FROM  WARREN  CIRCUIT  COURT. 

December  5,  1876. 

Opinion  by  Judge  Elliott  : 

Henry  S.  Alexander  was  indebted  to  appellant  for  cattle,  and  hav- 
ing promised  him  to  give  him  his  note  with  ten  per  cent,  interest 
from  the  date  thereof,  he,  on  the  28th  of  July,  wrote  a  note  to  said 
appellant  for  two  hundred  fifty  dollars,  due  four  months  after 


J.  N.  Jones  v,  Parmelia  Alexander,  et  al.  817 

date,  and  signed  it  himself  and  procured  the  signature  of  his  mother, 
Parmelia  Alexander,  thereto.  Afterwards,  and  before  said  Henry  S. 
Alexander  delivered  the  note  to  the  appellant,  he  wrote  below  his 
own  and  his  mother's  signature  to  the  note  these  words,  "Interest  on 
this  note  10  per  cent." 

He  then  took  the  note  to  appellant,  who  looked  at  it  and  remarked 
that  it  failed  to  bear  interest  from  date  at  ten  per  cent.,  and  there- 
fore did  not  comply  with  the  contract,  whereupon  said  appellee,  H.  S. 
Alexander,  pointed  out  the  memorandum  on  the  note  below  his  and 
sureties'  signatures  and  said  it  was  all  right,  and  appellant  took  the 
note.  Appellees  having  failed  to  discharge  the  note,  appellant  has 
brought  this  suit  to  coerce  its  payment.  The  appellant  sets  out  the 
agreement  of  appellee,  H.  S.  Alexander,  to  execute  a  note  for  the 
amount  due  him,  worth  ten  per  cent,  interest  from  date,  and  charges 
that  the  interest  was  left  out  of  said  note.  The  proof  is  that  appellee, 
Parmelia  Alexander,  signed  her  name  to  the  note  before  the  memo- 
randum as  to  the  interest  was  made,  and  that  same  was  after- 
wards made  by  appellee,  H.  L.  Alexander,  without  her  knowledge  or 
consent,  and  the  court  below  held  that  it  was  a  material  alteration 
and  avoided  the  entire  note  as  to  Mrs.  Alexander. 

The  memorandum  as  to  interest  is  below  the  signatures  of  the 
obligors  to  the  note,  and  is  without  date,  and  according  to  the  proof 
was  made  after  the  note  was  executed  and  was  no  part  of  the  con- 
tract of  appellee,  Parmelia  Alexander,  when  she  executed  the  con- 
tract, and  we  are  therefore  of  opinion  that  the  same  was  no  part  of 
the  written  promise  contained  in  the  note  which  was  signed  by  the 
appellees. 

The  obligors'  names  should  be  signed  at  the  end  or  close  of  the 
written  instrument,  and  if  so  done  and  a  memorandum  is  afterwards 
made  below  said  signatures  by  one  of  the  obligors,  it  will  not  be 
treated  as  a  part  of  the  instrument.  Such  a  memorandum  cannot  be 
considered  an  alteration  of  the  written  instrument  because  not  in- 
serted in  the  body  thereof,  and  it  cannot  be  considered  as  another 
contract  qualifying  the  original  one  and  executed  simultaneously 
therewith  because  it  does  not  show  that  it  was  executed  by  the  same 
parties  who  executed  the  original. 

We  are,  therefore,  of  the  opinion  that  the  memorandum  made  on 
the  note  after  its  execution  by  the  appellee,  H.  S.  Alexander,  was  no 
alteration  of  said  note,  and  that  the  appellant  is  entitled  to  recover 
the  amount  of  said  note  according  to  the  stipulations  made  in  the 


62 


8i8  Kentucky  Opinions. 

body  thereof,  said  memorandum  as  to  interest  being  no  part  of  the 
written  instrument  and  a  nullity  in  this  proceeding. 

Wherefore  said  judgment  is  reversed  and  cause  remanded  for  fur- 
there  proceedings  consistent  herewith. 

H.  T.  Clark,  for  appellant.  W,  E.  Settle,  for  appellees. 


Adoply  Endrick  z\  Peter  Karlin. 

Bill  of  Sale— Record. 

A  bill  of  sale  is  not  required  to  be  recorded  and  if  it  is  recorded  la 
not  notice  to  the  public. 

Lien. 

The  lien  retained  in  a  bill  of  sale  is  good  as  between  the  Tendor 
and  yendee  and  the  equity  will  be  protected  against  the  claim  of  any 
person  not  possessing  a  superior  right 

Rights  of  Creditor. 

The  creditor  of  one  who  has  executed  a  bill  of  sale  to  another, 
becoming  such  creditor  after  its  execution,  is  of  no  greater  dignity 
than  that  of  the  holder  of  the  bill  of  sale  and  is  inferior  in  point  of 
time,  and  where  such  creditor  has  actual  notice  of  the  senior  equity, 
his  claim  is  postponed  to  that  of  the  holder  of  the  bill. 

APPBAL  FROM  LOUISVILLE  CHANCBRY  COURT. 

.  December  5,  1876. 

Opinion  by  Judge  Lindsay  : 

Whilst  there  is  no  statute  requiring  or  authorizing  the  recording 
of  a  bill  of  sale  of  personal  property,  and  whilst  the  law  will  not  im- 
ply notice  upon  the  part  of  either  a  purchaser  or  creditor  by  reason 
of  such  recording  of  any  lien  that  may  be  retained  to  secure  the  ven- 
dor in  the  payment  of  the  purchase  price,  yet  it  seems  that  actual  no- 
tice of  appellee's  lien  had  been  brought  to  the  appellant  before  the 
enforcement  of  his  execution  levy. 

The  lien  retained  in  the  bill  of  sale  is  good  as  between  the  appellee 
and  his  debtor.  It  is  an  equity  that  will  be  protected  by  the  chancel- 
lor against  the  claim  of  any  person  who  does  not  possess  a  superior 
right.  Appellant's  debt  was  not  contracted  on  the  faith  of  the  per- 
sonal property  in  contest.  It  was  sold  by  appellee  to  the  common 
debtor  long  after  appellant's  debt  was  created.  The  sleeping  or  se- 
cret equity  cannot,  therefore,  operate  as  an  actual  fraud  upcm  his 


Henry  Farris's  Ex'r  z\  Emly  Rowland,  et  al.  819 

rights.  His  claim  arises  out  of  the  levy  of  his  execution.  It  is  of  no 
greater  dignity  than  that  of  the  appellee,  and  it  is  inferior  in  point  of 
time.  He  had  actual  notice  of  the  senior  equity,  and  according  to 
the  doctrines  of  the  cases  of  H alley  v,  Oldham,  et  aL,  5  B.  Mon.  233 ; 
Righter,  et  aL,  v.  Forrester,  et  al.,  i  Bush  278,  and  Low  &  Whitney 
V.  Blinco,  et  ai,  10  Bush  335,  he  ought  not  to  be  allowed  to  proceed 
to  sell  the  property  under  his  execution  levy. 

This  conclusion  obviates  the  necessity  of  considering  the  proof 
touching  the  execution  of  the  alleged  mortgage. 

Judgment  aMrmed. 

James  Harrison,  for  appellant. 

P.  A.  Gaertner,  L.  M.  Dembitz,  for  appellee. 


Henry  Farris's  Ex'r  v.  Emly  Rowland,  et  al. 

Attachment. 

After  the  discharge  of  the  first  attachment  and  no  new  cause  of  atp 
tachment  being  shown,  the  issuance  of  a  second  attachment  by  the 
clerk  is  unauthorized  and  void. 

Dismissal  of  Attachment. 

The  clerk  cannot  revise  the  ruling  of  the  court  dismissing  an  atp 
tachment  by  issuing  another  attachment  upon  the  same  record  which 
the  court  had  decided  did  not  authorize  it. 

APPEAL  FROM  PAYBTTB  CIRCUIT  COURT. 

December  6,  1876. 

Opinion  by  Judge  Cofer  : 

The  discharge  of  the  first  attachment  was  a  decision  by  the  court 
that  grounds  for  an  attachment  had  not  been  made  out,  and  as  no 
new  pleading  was  filed,  and  no  step  was  taken  afterwards  that  could 
furnish  any  ground  or  authority  for  an  attachment  that  did  not  exist 
when  the  first  attachment  was  discharged,  we  are  of  the  opinion  that 
the  second  attachment  was  issued  without  authority,  and  that  it 
should  have  been  discharged  and  the  petition  dismissed  on  the  final 
hearing.  It  will  not  do  to  say  that  after  a  decision  by  the  court  that 
no  grounds  exist  for  an  attachment,  the  clerk  may  afterward  issue 
another  attachment  upon  the  record  which  the  court  has  decided  did 
not  authorize  it.  To  so  hold  would  be  practically  to  allow  an  appeal 
to  the  clerk  from  the  decision  of  the  court. 

Whether  the  first  attachment  was  properly  discharged  is  not  a 


820  Kentucky  Opinions. 

question  we  are  now  called  upon  to  decide.  If  it  was  erroneous  the 
law  pointed  out  the  mode  of  correcting  it,  and  that  mode  not  having 
been  pursued  within  the  time  prescribed  by  law  the  order  became 
final,  so  far  as  the  first  attachment  was  concerned  until  reserved  by 
this  court.  We  do  not  mean  to  decide  that  the  court  might  not  have 
ordered  another  attachment  to  issue,  or  that  the  appellees  might  not, 
by  filing  an  amended  petition  setting  up  the  fact  that  Bullock  held  a 
fund  belonging  to  the  appellant,  have  obtained  an  attachment  against 
that  fund.  All  we  mean  to  decide  is  that  the  clerk  could  not  virtually 
revise  the  ruling  of  the  court  by  issuing  an  attachment  upon  the  same 
record  which  the  court  had  decided  did  not  authorize  it. 

This  view  of  the  case  renders  it  unnecessary  to  decide  whether  the 
fund  in  Bullock's  hands  can  be  attached  by  the  appellees.  The  judg- 
ment is  reversed,  and  the  cause  is  remanded  with  directions  to  dis- 
miss the  petition  and  discharge  the  attachment. 

Breckenridge  &  Shelby,  for  appellfmt. 
Marton  &  Parker,  for  appellees. 


W.  L.  English's  G'd'n  v,  James  B.  English. 

Homestead — Right  of  Non-Resident  to  Claim  Homestead  as  Exempt. 
The  right  of  a  Judgment  debtor  to  a  homestead  only  continues  so 
long  as  he  occupies  or  resides  on  the  premises.    When  he  has  moved 
from  the  premises  and  to  another  state  he  cannot  claim  such  ex- 
emption. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

December  14,  1876. 

Opinion  by  Judge  Pryor: 

This  is  an  appeal  from  a  judgment  of  the  Bullitt  circuit  court  sus- 
taining appellee's  motion  to  quash  the  levy  of  appellant's  execution 
on  about  forty-five  acres  of  land  in  Bullitt  county  which  appellee 
claims  is  exempt  from  levy  and  sale,  because  the  same  was  set  apart 
to  him  as  his  homestead  in  a  suit  brought  by  his  creditors  against  his 
trustee  to  whom  he  had  conveyed  his  estate  for  the  benefit  of  his 
creditors,  to  which  suit  appellant  was  a  party. 

In  his  deed  to  the  trustee  for  the  benefit  of  his  creditors  the  appel- 
lee reserved  the  homestead  in  the  land  levied  on  by  appellant's  execu- 
tion, which  levy  has  been  quashed  and  held  for  naught  by  the  court 
below  in  this  case. 


R.  H.  Field  v,  J.  F.  Smith.  821 

In  1873,  according  to  the  evidence,  appellee  left  this  state  and  emi- 
grated with  his  family  to  Missouri,  and  has  since  on  his  visits  to 
Kentucky  avowed  his  intentions  never  to  return  and  become  a  resi- 
dent of  Kentucky.  His  agent  has  rented  this  land  out  for  him  since 
1873,  and  under  these  circumstances  the  only  question  is  whether  ap- 
pellee can  still  hold  the  abandoned  premises  as  a  homestead  and  ex- 
empt from  levy  and  sale  by  his  execution  creditors. 

In  Gaines,  et  al.,  v.  Casey,  et  al.,  10  Bush  92,  this  court  held  that 
"this  right  to  the  exemption  must  terminate  whenever  the  debtor 
ceases  to  be  a  housekeeper  or  removes  from  the  premises ;"  and  the 
same  doctrine  has  since  been  held  in  Phipps,  Addington,  et  al.,  v. 
Acton,  et  al,,  Mss.  Opionion. 

There  can  be  no  doubt  that  the  right  of  a  judgment  debtor  to  a 
homestead  only  continues  so  long  as  he  occupies  or  resides  on  the 
premises,  but  when  he  ceases  to  occupy  the  premises  and  leaves  the 
state  and  remains  away  over  two  years,  and  resides  in  another  state, 
when  a  fi.  fa.  is  levied  upon  his  land  he  cannot  insist  on  his  right  to  a 
homestead  as  against  his  execution  creditors. 

Wherefore  the  judgment  is  reversed  and  cause  remanded  with  di- 
rections to  overrule  appellee's  motion. 

R.  J.  Meyler,  for  appellant,     R,  H.  Field,  for  appellee. 


R.  H.  Field  v.  J.  F.  Smith. 

Judgment — Error  in  Judgment — How  Corrected. 

An  error  of  the  clerk  in  entering  a  Judgment  may  be  corrected  by 
the  court  at  a  subsequent  term  when  there  is  anything  in  the  record 
to  go  by,  but  when  there  is  nothing  in  the  record  to  amend  by  such 
Judgment  cannot  be  corrected  upon  the  mere  recollection  of  witnesses 
as  to  what  took  place  in  the  court. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

December  16,  1876. 

Opinion  by  Judge  Cofer  : 

An  error  of  the  clerk  in  entering  a  judgment  or  order  may  be  cor- 
rected by  the  court  at  a  subsequent  term,  when  there  is  anything  in 
the  record  to  amend  by.    Hopkins  v,  Alvis,  2  A.  K.  Marsh  374, 

But  when,  as  in  this  case,  there  is  nothing  in  the  record  to  amend 
by,  it  would  be  extremely  hazardous  to  allow  a  record  to  be  amended 


822  Kentucky  Opinions. 

upon  the  mere  recollection  of  witnesses  as  to  what  took  place  in  court 
Under  such  a  practice  the  rights  of  parties  would  depend,  not  upon 
the  records  of  the  county,  but  upon  the  memory  of  men.  There  would 
be  no  security  in  relying  upon  the  solemn  judgments  of  courts,  and 
the  records  of  their  proceedings,  from  being  the  highest  grade  of  evi- 
dence known  to  the  law,  would  be  reduced  to  the  lowest  and  most 
unreliable. 

If  the  proposed  amendment  could  be  made,  it  would  follow  that 
after  an  adjudication  by  the  circuit  court,  a  reversal  by  this  court, 
and  a  second  adjudication  by  the  circuit  court,  a  change  would  be 
made  which,  if  it  is  to  have  any  effect  whatever,  reopens  the  entire 
subject  of  litigation,  would  authorize  a  new  appeal  to  this  court,  the 
reversal  of  a  judgment  entered  in  pursuance  to  its  mandate,  and  a 
direction  to  re-enter  a  judgment  once  reversed.  We  cannot  approve 
a  practice  fraught  with  such  consequences,  and  must  affirm  the  or- 
der of  the  circuit  court. 

R.  H.  Field,  for  appellant    R,  J.  Meyler,  for  appellee. 


Elijah  C.  Hunt,  et  al.,  v.  C.  H.  Blakey,  et  al. 

Conveyance  of  Real  Estate— Notice  by  Possession — ^Lien  of  Purchaser  in 
Possession — Improvements. 

One  who  buys  real  estate  in  the  possession  of  another  most  be  held 
to  be  put  upon  Inquiry  as  to  the  nature  of  that  possession  and  the 
maimer  in  which  it  was  held. 
Conveyance  of  Real  Estate— Lien  of  Purchaser  in  Possession— Improve- 
ments. 

Where  a  person  owing  a  debt  agrees  to  sell  real  estate  in  payment 
of  it  and  puts  such  .purchaser  in  possession,  such  purchaser  has  a 
lien  for  the  amount  of  his  claim  and  improvements  made  hy  him 
before  notice  from  a  purchaser  that  he  has  received  conveyance  of 
such  real  estate. 

APPEAL  FROM  LOGAN  CIRCUIT  COURT. 

December  16,  1876. 

Opinion  by  Judge  Cofer  : 

The  loan  of  the  money  to  Gordon  by  Mrs.  Hunt  seems  to  be  well 
established ;  and  we  think  it  is  also  established  that  he  verbally  agreed 
to  sell  the  property  in  contest  in  satisfaction  of  the  debt,  and  in  pur- 
suance to  that  agreement  placed  her  and  her  husband  in  possession. 


Elijah  C.  Hunt,  et  al.,  v.  C.  H.  Blakey,  et  al.         823 

They  were  in  possession  when  the  appellees  purchased  the  property 
from  Gordon,  and  their  possession  was  sufficient  to  put  them  upon 
inquiry  as  to  the  nature  of  that  possession,  and  the  manner  in  which 
it  was  held ;  and  if  they  had  made  inquiry  they  would  have  learned 
why  they  were  claiming  it  as  purchasers,  or,  failing  in  that,  would 
have  placed  the  appellants  in  the  wrong  and  thus  have  disarmed  them 
of  the  equity  now  being  asserted.  Having  failed  to  make  the  inquiry 
which  the  possession  of  the  appellants  ought  to  have  suggested,  the 
appellees  must  be  taken  to  have  purchased  with  notice  of  the  char- 
acter of  the  possession,  and  thus  stand  in  the  shoes  of  their  vendor, 
Gordon,  and  as  the  appellants  had  a  lien  on  the  property  as  against 
him  they  have  it  against  the  appellees  also. 

The  testimony  of  Mrs.  Hunt  was  not  objected  to  in  the  court  be- 
low, and  that  question  cannot  be  made  here  for  the  first  time,  but  if 
it  had  been  made  it  would  have  been  unavailing.  The  debt  of  Gor- 
don to  Mrs.  Hunt  was  not  discharged  by  the  verbal  contract  for  the 
sale  of  the  property  so  as  to  divest  her  of  all  interest  in  it ;  it  contin- 
ued to  be  a  debt  due  to  her  and  in  the  event  of  the  death  of  her  hus- 
band would  have  belonged  to  her  as  survivor.  She  was  therefore  a 
proper,  though  not  a  necessary  party  to  the  suit,  and  was  competent 
as  a  witness  in  her  own  behalf. 

The  failure  to  prove  the  debt  against  the  estate  of  Gordon,  so  far 
from  being  a  circumstance  against  the  appellants,  seems  to  us  to  be 
in  their  favor.  If  their  claim  to  have  purchased  or  agreed  to  pur- 
chase the  property  be  correct,  they  had  no  debt  that  ought  to  have 
been  proved,  for  it  was  already  secured  by  a  lien,  which  might  have 
been  defeated  if  they  had  proved  the  debt.  The  fact  that  they  did  not 
seek  redress  in  some  form  when  they  learned  that  the  appellees  had 
purchased  the  property  does  not  weaken  their  case.  They  were  in 
possession,  and  so  long  as  the  appellees  remained  passive  they  could 
well  afford  to  do  so. 

The  only  circumstance  disclosed  by  the  record  which  is  calculated 
to  create  any  doubt  of  the  truth  of  appellants'  claim  is  the  testimony 
of  the  appellees.  Blakey  says  that  in  the  fall  of  1872  the  appellant, 
Elijah  Hunt,  came  to  him  to  rent  the  property  and  proposed  to  pay 
the  rent  in  improvements,  and  that  not  having  time  to  go  and  see 
what  improvements  were  needed  he  referred  him  to  his  coappellee. 
Hall.  Hall  testified  that  he  had  a  conversation  with  Hunt  in  January 
or  February,  1873,  and  that  he  asked  Hunt  if  he  wanted  to  rent  the 
place  for  that  year,  and  he  said  he  did,  and  that  Hunt  then  told  him 
he  had  talked  with  Blakey  and  Blakey  had  told  him  he  could  pay  the 


824  Kentucky  Opinions. 

rent  in  improvements,  and  that  in  November  afterwards  he  met  Hunt 
and  suggested  a  settlement,  when  Hunt  told  him  the  place  was  liable 
for  some  improvements  made  while  Gordon  owned  the  property  and 
declined  to  make  a  settlement. 

Mrs.  Hunt  testified  that  her  husband  knew  of  her  purchase  of  the 
property,  and  his  application  to  the  appellees  for  the  rent  was  there- 
fore inconsistent  with  the  claim  now  asserted.  That  conduct  upon 
his  part  he  had  no  opportunity  of  explaining  or  contradicting,  for  his 
wife  having  testified  he  was  not  competent  to  testify  also. 

But  it  may  be  susceptible  of  explanation  consistently  with  the  hon- 
esty and  veracity  of  all  the  witnesses,  while  the  testimony  of  Mrs. 
Grordon  and  Mrs.  Hunt,  which  his  conduct  tended  to  contradict,  is 
either  true  or  wickedly  and  corruptly  false,  and  cannot  be  otherAvise 
disposed  of.  There  is  nothing  proven  by  others  or  appearing  in  the 
testimony  of  these  witnesses  calculated  to  cast  any  suspicion  upon 
their  veracity,  and  we  are  therefore  of  the  opinion  that  their  direct 
and  positive  statements  outweigh  the  conduct  of  Elijah  Hunt  as 
proved  by  the  testimony  of  the  appellees. 

Counsel  argues,  however,  that  conceding  all  the  appellants  claim 
to  be  true  they  have  no  lien  upon  the  property  for  the  debt  to  satisfy 
which  Gordon  agreed  to  convey  them  the  property;  that  it  is  only 
when  the  vendor  has  paid  out  his  money  on  the  faith  of  a  parol  con- 
tract that  he  has  a  lien,  and  that  when  he  merely  agrees  to  receive 
land  in  discharge  of  an  existing  indebtedness  by  the  vendor  he  has 
no  lien.  When  the  appellants  entered  into  the  agreement  to  take  the 
property  in  satisfaction  of  the  debt  and  were  put  in  possession,  they 
lost  their  right  to  sue  Gordon  for  the  debt,  and  that  right  could  only 
be  revived  by  his  refusal  to  convey  pursuant  to  the  agreement,  and 
he  could,  by  tendering  a  deed,  have  made  the  satisfaction  of  the  debt 
complete.  There  was,  therefore,  such  consideration  for  the  agree- 
ment as  ought  to  uphold  it  as  far  as  the  statute  of  frauds  will  allow 
it  to  be  enforced.  It  was  about  two  years  from  the  time  the  appel- 
lants took  possession  until  Gordon  put  it  out  of  his  power  to  convey 
to  them  by  conveying  to  the  appellees.  During  that  time  the  right  of 
the  appellants  to  sue  for  their  debt  was  suspended,  and  about  the  end 
of  the  time  Gordon  became  a  bankrupt.  But  for  the  agreement  to 
convey  the  property  the  appellants  might  have  secured  themselves; 
and  not  having  done  so,  but  trusted  to  the  good  faith  of  Gordon,  they 
are  as  much  entitled  to  a  lien  against  him  and  purchasers  from  him 
with  constructive  notice  of  their  claim,  as  if  they  had  paid  the  money, 


T.  C.  AND  J.  Newcombe  z\  Tolle,  Holton  &  Co.  825 

instead  of  agreeing  to  receive  the  land  in  payment  of  an  existing 
debt. 

Nor  can  we  concur  with  the  counsel  in  his  conclusion  that  the  ap- 
pellants are  not  entitled  to  the  value  of  the  improvements  put  upon 
the  property  before  notice  of  the  conveyance  to  the  appellees.  For 
improvements  put  upon  it  after  notice  of  appellees'  purchase  they 
are  not  entitled  to  be  paid  anything,  but  for  improvements  made  be- 
fore that  time  they  were  entitled,  as  against  Gordon,  to  be  paid  their 
actual  value,  and  as  the  appellees  can  stand  in  no  better  attitude  than 
Gordon  would  have  occupied  if  he  had  continued  to  be  the  owner, 
they  also  must  account  for  the  value  of  the  improvements  at  the  time 
of  their  purchase,  and  the  appellants  should  account  for  rent  since 
that  time.  McCracken,  et  aL,  v.  Sanders,  4  Bibb  511.  Neither  rent 
nor  interest  should  be  charged  prior  to  the  date  of  appellee's  deed,  but 
both  should  be  charged  after  that  time. 

Judgment  reversed,  and  cause  remanded  for  further  proper  pro- 
ceedings. 

Caldwell,  Browder  &  L.  C.  Garrigus,  for  appellants. 
J,  H.  Bowden,  for  appellees. 


T.  C.  &  J.  Newcombe  v.  Tolle,  Holton  &  Co. 

Bankruptcy  as  Defense — ^Answer. 

An  answer  setting  up  bankruptcy,  to  be  good,  must  aver  that  plain- 
tiffs proved  their  debts  in  the  bankrupt  court,  or  that  the  defendant 
had  been  adjudged  a  bankrupt,  or  that  the  defendant  had  been  dis- 
charged by  the  proceedings  in  bankruptcy  from  said  debts. 

APPEAL  FROM  FLEMING  CIRCUIT  COURT. 

September  18,  1875. 

Opinion  by  Judge  Peters: 

It  is  alleged  in  the  answer  by  appellants  that  they  had  filed  their 
petition  in  the  United  States  District  Court  at  Louisville  under 
the  bankrupt  laws  of  the  United  States  for  a  discharge  in  bank- 
ruptcy, as  per  Exhibit  A,  and  they  therefore  protest  and  object  to 
this  court's  taking  jurisdiction  of  this  case. 

But  it  is  not  alleged  in  the  answer  that  appellees  had  proved 
their  debts  against  the  appellants  in  the  bankrupt  court,  nor  had 
been  adjudged  bankrupt,  nor  that  appellants  had  been  discharged 
by  the  proceedings  in  bankruptcy  from  said  debts. 


826  Kentucky  Opinions. 

Section  21  of  the  general  bankrupt  laws  of  1867  provides  that 
no  creditor  who  proves  his  debt  or  claim  shall  be  allowed  to  main- 
tain any  suit  at  law  or  in  equity  therefor  against  the  bankrupt,  etc 

Their  answer,  therefore,  in  order  to  have  presented  a  good  de- 
fense to  the  action,  should  have  alleged  that  appellees  had  proved 
their  debts  in  the  bankrupt  court,  or  that  appellants  had  been  ad- 
judged bankrupt,  or  had  been  discharged  from  said  debts  by  the 
judgment  of  said  court,  and  neither  averment  having  been  made, 
the  demurrer  was  properly  sustained. 

Wherefore  the  judgment  is  affirmed. 

IV.  H.  Card,  for  appellants.     IV.  S.  Botts,  for  appellees. 


F.  R.  Hancock  v.  John  F.  Rice. 

Pleading — Answer — Reply. 

Where  an  answer  presents  a  valid  counterclaim,  a  reply  is  not  good 
which  avers  that  plaintiff  has  not  sufficient  knowledge  to  form  a  belief 
as  to  whether  the  averments  in  the  answer  are  true. 

APPEAL  FROM  MUHLE5NBURG  CIRCUIT  COURT. 

September  21,  1875. 

Opinion  by  Judge  Cofer  : 

It  is  alleged  in  the  answer  of  the  appellant,  in  substance,  that  the 
several  sums  of  money  charged  to  the  appellee  in  the  account  made 
part  of  the  answer  were  either  drawn  out  by  him  or  transferred  by 
his  direction  to  the  credit  of  Morgan,  and  that  after  crediting  the 
appellee  with  all  the  money  deposited  with  appellant,  and  charg- 
ing him  with  what  he  had  drawn  out  or  caused  to  be  transferred 
to  the  credit  of  Morgan,  there  was  due  to  the  appellant  the  sum 
of  $9.97,  for  which  he  prayed  judgment. 

The  substance  of  the  reply  is  that  he  has  not  sufficient  knowl- 
edge or  information  to  form  a  belief  as  to  whether  the  statement 
filed  with  defendant's  answer,  and  showing  the  amount  of  cash 
deposited  with  and  drawn  from  the  defendant,  Hancock,  by  the 
plaintiff,  is  correct.  Therefore,  that  is,  because  he  had  not 
sufficient  knowledge  or  information  to  form  a  belief,  he  denies 
that  said  statement  is  correct.  He  specifically  denies  each  and  every 
item  and  statement  of  defendant's  answer,  denies  that  defendant 
ever  repaid  to  him  the  amount  of  the  check  sued  for,  or  any  part 
thereof,  denies  that  he  is  indebted  to  the  defendant  in  the  sum  of 
$9.97,  or  any  part  thereof. 


F.  B.  VanMeter  v.  R.  P.  Pepper.  827 

Whether  the  amounts  charged  as  having  been  paid  to  him  were 
in  fact  paid,  and  whether  those  charged  as  transferred  to  Mor- 
gan's credit  had  been  directed  by  him  to  be  so  transferred,  were 
matters  necessarily  within  the  personal  knowledge  of  the  appellee, 
and  he  could  not  make  a  sufficient  answer  to  such  allegations  by 
denying  knowledge  or  information  sufficient  to  form  a  belief  of 
their  truth.  Wing,  et  aL,  v.  Dugm,  8  Bush  583.  That  he  specific- 
ally denies  each  and  every  item  and  statement  of  defendant's  an- 
swer is  obviously  insufficient;  nor  is  the  denial  of  indebtedness 
good.  Francis  v.  Francis,  18  B.  Mon.  57;  Whitaker  v.  Sandifer,  i 
Duvall  261 ;  Corbin,  et  aL,  v.  Commonwealth,  2  Met.  380. 

The  jury  having  found  a  verdict  for  the  appellee  for  the  sum 
of  $365,  the  appellant  moved  for  a  new  trial,  and  his  motion  was 
overruled.  He  then  moved  for  judgment  non  obstante  veredicto, 
which  motion  was  likewise  overruled.  In  this  the  court  erred. 
We  have  already  decided  that  the  reply  was  insufficient.  The  an- 
swer presented  a  valid  counterclaim,  which,  not  being  controverted, 
judgment  should  have  been  rendered  for  the  appellant  on  the  plead- 
ings for  the  sum  of  $9.97. 

"Where,  upon  the  statements  in  the  pleadings,  one  party  is  en- 
titled by  law  to  judgment  in  his  favor,  he  shall  be  so  entered  by 
the  court,  though  a  verdict  has  been  found  against  such  party." 
Sec.  416,  Civil  Code. 

For  the  error  indicated  the  judgment  is  reversed  and  the  cause 
is  remanded  with  directions  to  sustain  the  motion  and  render  judg- 
ment on  the  pleadings  for  the  appellant  for  $9.97. 

A.  J.  James,  for  appellant. 


F.  B.  VanMeter  v,  R.  P.  Pepper. 

Liability  of  Guarantor — ^Petition. 

To  make  out  a  cause  of  action  against  a  guarantor  it  is  necessary  in 
the  petition  to  aver,  in  addition  to  the  facts  by  which  he  became  bound 
for  the  default  of  the  principal,  facts  showing  such  default. 

Recovery  on  Contract 

To  recover  on  an  executory  contract  plaintiff  must  aver  facts  in  his 
petition  showing  that  he  was  ready  and  willing,  on  the  day  stipulated 
in  the  contract,  to  perform  his  part  of  it. 


828  Kentucky  Opinions. 

appeal  from  franklin  circuit  court. 

September  25,  1875. 
Opinion  by  Judge  Cofer: 

Pepper's  only  liability  was  that  of  a  guarantor,  and  in  order  to 
make  out  a  cause  of  action  against  him,  it  was  necessary,  in  addition 
to  the  facts  by  which  he  became  bound  for  the  default  of  Duck- 
worth, to  allege  facts  showing  such  default.  This  was  not  done. 
Duckworth  would  only  be  liable  in  the  event  the  appellant  was 
ready  and  willing  at  the  time  and  place  of  performance  to  deliver 
the  cattle  to  him  according  to  the  terms  of  their  contract,  that  is, 
at  five  cents  per  pound  on  a  credit  of  fifteen  days.  It  is  not  alleged 
that  he  was  ready  and  willing  on  the  day  stipulated  in  the  contract 
to  perform  his  part  of  it.  The  only  allegation  on  that  point  is  in 
these  words :  "Plaintiff  says  that  he  kept  said  cattle  until  said  15th 
day  of  November,  1873,  and  that  they  then  weighed  65,050  pounds," 
etc.,  and  that  "Duckworth  failed  and  refused  to  receive  said  cattle 
on  said  15th  day  of  November,"  etc. 

But  if  the  petition  had  been  good,  the  testimony  of  the  appellant 
himself  shows  he  had  no  right  to  recover.  He  says  he  was  at  home 
on  his  farm  where  the  cattle  were,  on  the  15th  and  i6th  of  Novem- 
ber, and  that  he  went  away  on  the  17th,  and  left  instructions  with 
J.  M.  VanMeter  that  if  Duckworth  came,  not  to  let  him  have  the 
cattle  unless  he  paid  the  money  for  them.  He  does  not  say  that  he 
was  ready  and  willing  to  deliver  the  cattle  on  the  15th,  but  says 
that  sometime  prior  to  that  date  he  received  a  letter  from  Duck- 
worth saying  he  was  afraid  he  would  not  be  able  to  take  the  cattle, 
and  would  have  to  look  up  a  purchaser  for  him  to  take  the  cattle. 
The  evidence  shows  that  Duckworth  was  then  known  to  be  seri- 
ously embarrassed,  and  we  have  no  doubt  but  the  failure  to  allege 
readiness  on  appellant's  part  to  comply  with  his  contract  resulted 
from  his  unwillingness  to  make  it,  and  not  from  inadvertence  or 
mistake. 

If  the  petition  and  evidence  showed  a  breach  of  contract  on  the 
part  of  Duckworth,  it  would  then  be  doubtful  whether  the  appellee 
is  not  absolved  from  liability  by  appellant's  failure  to  give  him  no- 
tice of  the  default  of  Duckworth,  and  that  he  would  look  to  him  for 
indemnity,  but  we  need  not  now  decide  that  question. 

Judgment  afHrmed, 

T.  N,  &  D.  W,  Lindsey,  for  appellant, 
G.  W.  Craddock,  for  appellee. 


James  Best  v.  Perry  Jefferson.  829 

James  Best  v.  Perry  Jefferson. 

Duty  of  Officer. 

When  an  officer  has  it  in  his  power  to  make  matters  pertaining  to 
his  duties  plain,  and  fails  from  negligence,  ignorance  or  design  to  do 
so,  every  fact  left  fairly  in  doubt  should  be  construed  against  him,  and 
in  favor  of  those  for  whom  he  transacts  business,  and  to  whom  he  owes 
the  duty  to  do  it  correctly. 

APPEAL  FROM  MASON  CIRCUIT  COURT. 

October  4,  1875. 

Opinion  by  Judge  Cofer: 

We  have  given  this  record  the  very  best  consideration  of  which 
we  are  capable,  and  have  been  unable  to  come  to  any  other  conclu- 
sion than  that  the  execution  in  favor  of  Burgayne  came  to  the 
hands  of  the  appellee  before  that  in  favor  of  the  Pearces. 

The  following  facts  appearing  in  the  record  have  led  us  to  this 
conclusion.  Burgayne's  execution  was  issued  on  the  24th,  and  that 
in  favor  of  Pearces  on  the  2Sth  of  the  month.  It  was  the  duty  of 
the  sheriff  or  one  of  his  deputies  to  attend  at  the  clerk's  office  each 
day  to  receive  any  process  that  might  be  issued.  Sec.  72,  Civil 
Code.  This  duty  is  some  evidence,  when  taken  in  connection  with 
the  testimony  of  the  clerk,  that  the  execution  was  taken  out  on  the 
25th.  The  indorsement  by  appellee,  of  the  time  when  it  came  to 
his  hands,  was  apparently  made  with  and  as  a  part  of  his  return, 
which  latter  was  not  made,  as  we  shall  presently  see,  until  several 
months  after  the  return  day ;  and  it  is  fair  to  presume  the  whole  was 
written  at  once.  His  return  shows  that  the  levy  and  return  of  sale 
were  entered  on  Burgayne's  execution  after  the  i6th  of  May,  1866, 
and  on  Pearces'  execution  as  late  as  October  31,  1866. 

The  time  of  making  the  levy  under  the  former  is  stated  in  the 
return,  but  the  return  is  without  date.  No  date  is  given  on  Pearces' 
execution  of  the  levy  or  return,  and  neither  return  shows  the  date 
of  the  sale  or  where  it  was  made.  The  law  required  the  date  of  the 
levy  and  of  sale  to  be  stated.  Sec.  10,  Art.  i,  Chap.  91,  Rev.  Stat. 
The  return  on  the  execution  against  Mrs.  Curtis  is  also  without 
date,  as  well  as  the  transfer  of  the  judgment  against  appellant. 
These  repeated  failures  to  give  dates  where  dates  were  not  only 
usual,  but  required  by  law,  is  unaccounted  for  and  cannot  be  at- 
tributed to  oversight.  Where  the  sale  was  made,  but  a  single  bond 
was  taken  from  the  purchaser,  which  can  only  be  accounted  for  by 


830  Kentucky  Opinions. 

supposing  the  appellee  then  understood  that  only  one  of  the  execu- 
tions was  to  be  paid.  That  bond,  instead  of  being  returned,  was 
retained  by  the  appellee,  and  does  not  yet  appear  to  have  been  re- 
turned. He  collected  the  bond  without  legal  authority.  It  was  in 
his  power  to  produce  it,  and  if  produced  it  might  have  shed  great 
light  upon  the  question  at  issue.  He  was  sworn  as  a  witness,  and 
does  not  swear  that  both  executions  were  received  at  the  same 
time.  He  made  a  return  on  the  execution  against  Mrs.  Curtis, 
showing  this  by  the  proceeds  of  the  other  execution,  and  then  un- 
dertakes to  explain  that  return  by  saying  that  it  had  not  been  satis- 
fied in  that  way,  but  had  been  paid  off  by  himself  out  of  his  own 
money,  which,  of  course,  was  no  satisfaction  at  all.  If  both  execu- 
tions came  to  his  hands  at  the  same  time,  the  duty  of  the  appellee 
was  so  plain  that  it  is  impossible  to  suppose  that  he  did  not  under- 
stand it.  In  that  case  there  would  have  been  no  necessity  to  omit 
dates,  or  to  confuse  indorsements,  or  to  neglect  to  make  the  entries 
at  the  time  they  should  have  been  made  and  in  the  manner  directed 
by  law ;  and  there  was  no  propriety  in  taking  one  bond  instead  of 
two,  or  necessity  to  hold  up  the  executions ;  and  there  was  no  truth 
in  the  return  on  the  execution  against  Mrs.  Curtis. 

When  an  officer  of  the  law  has  it  in  his  power  to  make  matters 
pertaining  to  his  duties  plain,  and  he  fails  from  negligence,  igno- 
rance or  design  to  do  so,  every  fact  left  fairly  in  doubt  should  be 
construed  against  him,  and  in  favor  of  those  with  and  for  whom 
he  transacts  business,  and  to  whom  he  owes  the  duty  to  do  it  cor- 
rectly. If  the  appellee  had  made  his  return  at  once  in  accordance 
with  what  he  now  says  was  the  fact,  the  appellant  could  have  sought 
a  remedy,  either  by  proceeding  to  correct  the  return,  or  by  suing 
out  an  execution  against  Mrs.  Curtis,  or  against  his  principal,  or 
against  both.  It  is,  therefore,  but  fair  to  hold  that  any  loss  resulting 
from  the  confusion  and  uncertainty  that  have  arisen  should  fall  upon 
him  who  had  it  in  his  power  to  make  the  matter  plain,  but  neglected 
to  do  it. 

We  do  not  think  the  appellee  has  succeeded  in  establishing  a 
valid  arbitration  and  award.  Conceding  that  a  reference  was 
agreed  to,  and  an  award  made,  the  appellant  is  not  bound  by  it.  He 
does  not  appear  either  to  have  had  notice  of  the  time  and  place  of 
the  meeting  of  the  arbitrators,  or  to  have  agreed  to  waive  it.  Nor 
does  it  appear  that  he  was  present,  or  that  the  arbitrators  were 
sworn,  or  that  this  was  waived. 

This  arbitration  and  award   is  alleged  to  have  been  made  in 


Robert  Hall,  et  al.,  v,  Lewis  Harris's  Adm'r.  831 

October,  1866,  but  no  steps  seem  to  have  been  taken  by  the  appel- 
lee to  coerce  payment  until  sometime  in  the  latter  part  of  1869,  a 
period  of  nearly  three  years  after  he  claims  that  it  was  settled  that 
he  was  to  be  paid.  He  attempts  to  excuse  this  delay  by  alleging 
repeated  promises  by  appellant  to  pay  him,  but  of  this  there  is  no 
evidence,  not  even  in  his  own  testimony. 

We  think  the  appellant  made  out  a  case  for  relief,  and  the  judg- 
ment is  reversed  and  the  cause  is  remanded,  with  directions  to  per- 
petuate the  injunction. 

/.  G.  Hickman,  A,  Duvall,  for  appellant. 

W.  H.  Wardsworth,  T.  C  Campbell,  for  appellee. 


Robert  Hall,  et  al.,  v.  Lewis  Harris's  Adm'r. 

Administrator — Decedent's  Real  Estate. 

An  administrator  has  no  control  over  the  land  of  his  decedent;  such 
land  descends  to  the  heirs,  and  when  one  of  the  heirs  is  indebted  to 
the  decedent  his  interest  in  such  land  is  liable  to  be  Isold  to  pay  such 
indebtedness. 

Creditors  of  Heirs. 

Where  there  is  personal  property  in  the  hands  of  an  administrator, 
in  which  an  heir  has  an  interest,  the  creditors  of  such  heir  may  subject 
it  to  their  claims  after  such  interest  is  charged  with  indebtedness 
due  the  estate  from  such  heir;  and  if  there  is  not  sufficient  personal 
property  the  creditors  may  have  his  interest  in  the  real  estate  sold  to 
pay  their  claims. 

APPEAL  PROM  BULLITT  CIRCUIT  COURT. 

October  5,  1875. 

Opinion  by  Judge  Pryor: 

The  note  of  John  L.  Harris  constituted  a  part  of  the  personal 
assets  of  Lewis  Harris  in  the  hands  of  his  administrator  for  the 
payment  of  debts  and  for  distribution.  If  the  action  had  been  in- 
stituted by  John  L.  Harris  for  his  part  of  the  personal  estate,  the 
administrator  could  have  compelled  him  to  account  for  the  amount 
of  this  note;  and  if  so,  the  creditors'  recovery  cannot  be  for  any 
greater  sum.  He  stands  in  the  place  of  John  L.  Harris  when  he 
seeks  to  coerce  payment  of  the  administrator,  and  his  recovery  is 
limited  as  John  Harris's  would  be  if  he  were  plaintiff  instead  of  the 
creditor.     This,  however,  is  not  the  case  with  reference  to  his  in- 


832  Kentucky  Opinions. 

terest  in  the  real  estate  of  the  decedent.  The  administrator  was 
vested  with  no  title  to  the  land,  nor  did  he  have  any  lien  upon  it 
for  the  payment  of  debts.  He  had  no  more  control  over  the  land 
than  a  mere  stranger,  and  with  debts  in  his  hands  against  John  L. 
Harris,  must  enforce  the  payment  of  his  claim  when  he  seeks  to 
subject  the  real  estate,  like  any  other  creditor. 

If  John  L.  Harris  had  sought  a  division  of  the  land,  it  would  be 
no  answer  to  his  claim  that  he  owed  the  administrator  of  the  in- 
testate this  note,  and  must  first  pay  it  oflF  before  his  right  to  the 
land  accrued.  The  title  to  the  personal  estate  is  in  the  administra- 
tor, and  the  title  to  the  land  at  the  death  of  the  brother  vested  in 
his  heirs,  John  L.  Harris  being  one  of  them.  This  interest  of  John 
L.  Harris  in  the  land  was  as  much  liable  for  his  debts  as  if  he  had 
purchased  it  of  his  brother  and  obtained  the  legal  title.  His  title  to 
this  extent  was  complete,  and  not  encumbered,  so  far  as  this  record 
shows,  by  any  lien  when  his  creditors  sought  to  make  it  subject  to 
his  debts.  The  appellants  had  acquired  liens  by  the  levy  of  their 
attachments  and  executions.  There  seems  to  be  no  contest  between 
the  creditors  as  to  their  rights  as  between  each  other  by  reason  of 
the  levies.  The  case  should  have  gone  to  the  commissioner  to  as- 
certain the  amount  of  the  personal  estate  going  to  John  L.  Harris. 
If  he  has  any  interest  in  this  fund  (the  personalty),  after  charging 
him  with  what  he  owes  the  estate,  it  must  go  to  pay  his  debts.  If 
there  is  no  personal  estate,  or  not  a  sufficient  sum  going  to  John 
Harris  to  pay  the  claims  of  the  creditors  who  have  obtained  these 
liens,  the  court  will  proceed  to  sell  the  interest  of  John  Harris  in 
the  lands  levied  on  to  satisfy  the  creditors,  the  attachments  or  exe- 
cutions first  levied  being  entitled  to  priority.  The  judgment  of  the 
court  below  is  reversed  and  cause  remanded  for  further  proceedings 
consistent  with  this  opinion. 

W,  R,  Thompson,  for  appellants.    R.  H.  Field,  for  appellee. 


Alfred  Butt,  et  al.,  v.  James  Boren,  et  al. 

Mental  Capacity — ^Evidence. 

The  opinions  of  witnesses  as  to  mental  capacity  are  not  entitled  to 
much  weight  unless  the  facts  upon  which  they  are  hased  are  given. 

Joinder  of  Causes  of  Action. 

A  suit  to  enforce  the  settlement  of  an  administrator's  accounts  can- 
not he  Joined  with  a  suit  to  set  aside  a  deed. 


Alfred  Butt,  et  al.,  v,  James  Boren,  et  al.  833 

APPEAL.  PROM  SIMPSON  CIRCUIT  COURT. 

October  6,  1876. 

Opinion  by  Judge  Peters  : 

Many  of  the  witnesses  who  testified  on  the  part  of  appellants 
gave  it  as  their  opinion  that  Francis  Boren,  the  grantor,  at  the  date 
of  the  deed  in  contest  was,  from  his  great  age  and  physical  weak- 
ness, childish  and  mentally  incapable  to  understand  and  to  transact 
important  business ;  but  from  an  inability  and  a  failure  to  state  the 
facts  upon  which  they  base  their  opinions,  except  the  advanced  age 
of  the  grantor,  their  mere  opinions  cannot  be  allowed  to  overturn 
the  evidence  of  witnesses  who  saw  and  conversed  with  the  grantor 
shortly  before  and  after  the  making  of  the  deed,  and  who  prove 
facts  which  could  not  exist  if  the  mental  capacity  of  Francis  Boren 
was  as  frail  as  the  opposing  witnesses  considered  it. 

For  an  example,  Mrs.  Bush,  who  seems  to  be  a  very  intelligent 
woman,  proves  facts  showing  that  F.  Boren  had  not  only  a  distinct 
memory  of  important  facts  relating  to  the  title  to  her  land,  but  com- 
municated them  to  her  in  a  satisfactory  manner,  and  so  effectually  as 
to  enable  her  to  succeed  in  removing  difficulties  in  the  title  to  her 
land. 

Eubank  proves  that  he  went  to  see  the  old  gentleman  in  1872, 
after  the  date  of  the  contested  paper,  and  conversed  with  him  on  the 
business  for  which  he  went  to  see  him ;  that  he  conversed  very  in- 
telligently ;  and  he  afterwards  took  his  deposition  to  prove  the  mar- 
riage of  his  mother,  the  time  and  place,  etc.,  all  of  which  he  related 
with  great  accuracy,  and  he  was  intelligent  on  all  other  subjects 
about  which  he  conversed  with  him. 

The  draftsman  of  the  instrument  also  proves  facts  that  occurred 
at  the  time  he  wrote  it  that  show  the  old  gentleman  entirely  compe- 
tent to  thoroughly  understand  the  business  he  was  engaged  in. 

Upon  the  subject  of  undue  influence,  it  may  suffice  to  remark 
that  there  is  no  evidence  that  the  beneficiary  in  the  deed  ever  spoke 
to  his  father  on  the  subject,  or  attempted  to  influence  him  in  any 
way  whatever.  So  far  as  this  record  shows,  the  deed  was  the  vol- 
untary and  independent  act  of  a  man  fully  competent  to  do  it. 

The  suit  (if  any  exists)  against  James  Boren  to  enforce  a  settle- 
ment of  his  accounts  as  administrator  of  Francis  Boren,  Jr.,  was 
improperly  joined  with  the  suit  to  set  aside  the  deed  of  Francis 
Boren,  Sr.,  to  appellee,  James  Boren. 

53 


834  Kentucky  Opinions. 

Judgment  affinfied. 

G.  IV.  Whitesides,  A.  Duvall,  for  appellants. 
W.  P.  D.  Bush,  T.  Lee  JVilkerson,  for  appellees. 


Milton  Williams  v.  Agnes  Noel. 

Slander — Implied  Malice. 

While  malice  is  an  essential  ingredient  in  slander,  it  will  be  implied 
from  the  speaking  of  words  falsely  which  import  slander,  unless  they 
are  spoken  in  the  performance  of  some  public  or  private  duty. 

Misconduct  of  Jurors. 

The  separation  of  the  Jury  without  the  court's  consent  is  a  misde- 
meanor, but  it  is  not  sufficient  of  itself  to  vitiate  the  verdict,  especially 
where  it  appears  that  the  separation  took  place  after  the  verdict  had 
been  agreed  upon. 

APPEAL  PROM  GALLATIN  CIRCUIT  COURT. 

October  6,  1875. 

Opinion  by  Judge  Peters  : 

This  action  was  brought  in  the  court  below  by  appellee  against 
appellant  for  slander,  and  a  verdict  having  been  rendered  for  ap- 
pellee, and  appellant's  motion  for  a  new  trial  having  been  over- 
ruled, he  has  appealed  to  this  court  to  reverse  the  judgment  ren- 
dered upon  the  verdict. 

The  petition  contains  three  distinct  paragraphs.  In  the  first,  in 
which  it  is  alleged  that  appellant  maliciously  said  of  and  concerning 
the  appellee  (she  being  an  unmarried  woman)  that  he  saw  her  have 
sexual  intercourse  with  Bona  Stewart.  It  is  furthermore  alleged  in 
the  same  paragraph  that  appellant  charged  her  with  the  same  of- 
fense in  other  words,  which  are  set  forth  in  said  paragraph,  but  are 
too  obscene  to  be  inserted  here. 

In  the  second  paragraph  it  is  alleged  that  appellant,  in  the  pres- 
ence and  hearing  of  divers  persons,  and  on  many  occasions  in  1873, 
spoke  of  and  concerning  appellee  the  following  false  and  slanderous 
words,  that  he  had  been  watching  a  long  time  one  dark  rainy  night 
at  the  back  window  of  plaintiff's  house,  and  was  unable  to  see  any- 
thing wrong;  that  he  then  went  around  to  the  front  door  of  her 
house,  and  peeped  through  the  keyhole  for  some  time,  and  he  saw 
her,  meaning  the  plaintiff,  and  Bona  Stuart  have  sexual  and  "illicit" 
intercourse  together. 


Milton  Williams  v.  Agnes  Noel.  835 

In  the  third  paragraph,  it  is  alleged  that  the  defendant,  with  the 
malicious  intent  to  injure  and  destroy  her  character  and  her  busi- 
ness, she  being  a  merchant  and  engaged  in  the  same  business  and 
in  the  same  town  with  the  defendant,  spoke  of  and  concerning  the 
plaintiff  in  the  year  1873,  in  the  presence  and  hearing  of  divers 
persons,  on  many  occasions,  the  following  false  and  slanderous 
words,  to  wit,  "She  (meaning  the  plaintiff)  is  a  whore,  she  keeps  a 
whore  house,"  referring  to  and  meaning  that  plaintiff  was  keeping 
a  public  whore  house,  or  house  of  ill  fame. 

Appellant  moved  the  court  to  strike  out  the  second  paragraph  of 
the  petition ;  his  motion  was  overruled,  and  he  excepted.  He  then 
demurred  to  each  one  of  the  paragraphs.  His  demurrer  was  also 
overruled,  and  he  filed  an  answer  containing  three  paragraphs,  in 
which  he  admits  seriatim  the  speaking  of  the  words  as  charged  in 
the  several  paragraphs  of  the  petition,  and  justifies  the  speaking  of 
them  on  the  ground  that  they  were  true.  The  causes  assigned  for 
a  new  trial  are  nominally  five,  while  the  whole  are  comprehended 
in  the  first  and  fifth,  which  are  as  follows : 

First.  Because  the  verdict  of  the  jury  is  contrary  to  the  law 
and  the  evidence. 

Fifth.  Because  the  jury  was  not  kept  together  during  the  time 
they  were  considering  their  verdict,  and  some  of  them  were  out  of 
the  room,  mixing  and  mingling  among  the  crowd,  while  the  others 
were  considering  their  verdict. 

Departing  somewhat  from  the  order  in  which  the  attorney  for 
appellant  has  discussed  the  questions,  we  proceed  to  consider,  first, 
whether  the  court  below  erred  in  overruling  appellant's  motion  to 
strike  out  the  second  paragraph  of  the  petition.  Since  the  statute 
of  181 1,  which  makes  fornication  or  adultery  criminal  in  their  na- 
ture, and  punishable,  this  court  has  repeatedly  held  that  words 
charging  a  woman  with  either  offense  are  actionable ;  and  to  say  of 
appellee,  she  being  an  unmarried  woman  at  the  time  that  she  had 
sexual  intercourse  with  Bona  Stewart,  was  charging  her  with  hav- 
ing committed  fornication.  But  it  is  insisted  that  by  the  second 
paragraph  appellee  attempted  to  set  out  a  cause  of  action  independ- 
ent of  and  distinct  from  that  set  out  in  the  first ;  and  as  it  is  not  al- 
leged that  the  words  were  maliciously  or  wrongfully  spoken,  no 
cause  of  action  was  stated.  It  is  certainly  true  that  malice  is  an 
essential  ingredient  in.  slander;  but  malice  will  be  implied  from 
speaking  of  words  falsely  which  impart  slander,  unless  they  are 
spoken  in  the  performance  of  some  public  or  private  duty,  or  as  is 


836  Kentucky  Opinions. 

sometimes  said  in  discharge  of  some  moral  or  legal  duty.  Starkie 
on  Slander,  122-3  J  Paris  v.  Starke,  9  Dana  128.  The  words  set 
forth  in  the  paragraph  under  consideration  are  of  themselves  ac- 
tionable, and  the  court  below  did  not  err  in  refusing  to  strike  it  out, 
and  for  the  same  reason  the  demurrer  to  it  was  properly  overruled. 

The  first  paragraph  contains  all  the  words  necessary  to  constitute 
oral  slander  according  to  the  rule  contendea  for  by  appellant  It 
charges  that  he  spoke  the  defamatory  words  set  forth  of  and  con- 
cerning the  plaintiff  in  the  presence  and  hearing  of  divers  citizens, 
with  the  malicious  intent  to  injure  her. 

The  objection  taken  to  the  third  paragraph  by  appellant  is  that 
in  it  appellee  states  her  occupation  and  business,  but  fails  to  allege 
any  special  damage  that  resulted  to  her  business  by  reason  of  the 
speaking  of  the  words  complained  of.  She  stated  the  business  she 
was  engaged  in,  not  for  the  purpose  of  recovering  damages  for  any 
special  injury  done  to  her  business,  but  for  the  purpose  of  showing 
the  malignity  of  appellant,  and  the  selfish  motive  that  prompted  the 
speaking  of  the  words,  and  thereby  enhance  the  damages.  The 
words,  as  charged,  are  actionable,  and  the  paragraph  was  not 
vitiated  by  having  inserted  in  it  the  business  or  trade  of  appellee. 
We  cannot  say,  therefore,  that  the  court  erred  in  overruling  the 
demurrer  to  the  first  and  third  paragraphs  of  the  petition. 

It  is  insisted  with  much  zeal  by  the  learned  attorney  for  appel- 
lant that  the  judgment  should  be  reversed,  because  the  verdict  is 
not  sustained  by  the  evidence.  Evidence  was  introduced  on  the 
trial  by  appellant  tending  to  sustain  the  defence,  and  on  the  other 
side  contradictory  evidence  was  introduced.  It  is  not  the  province 
of  this  court  to  enter  upon  an  analysis  of  the  evidence,  and  deter- 
mine with  exactness  on  which  side  the  scales  preponderate.  To  do 
so  would  be  to  invade  the  province  of  the  jury,  and  if  in  any  case 
we  were  disposed  to  enter  upon  such  a  task,  we  have  rarely  seen 
one  less  inviting  than  this.  But  we  cannot,  after  mature  considera- 
tion, come  to  the  conclusion  that  the  verdict  of  the  jury  is  palpably 
against  the  weight  of  the  evidence,  and  do  not  feel  authorized  to 
interfere. 

The  law  of  the  case,  as  embodied  in  the  instructions  to  the  jury, 
seem  to  be  as  favorable  to  appellant  as  he  was  entitled  to.  But  we 
do  not  see  that  the  action  of  the  court  in  giving  the  instructions  to 
the  jury  was  excepted  to. 

As  to  the  misconduct  of  the  jury  at  and  during  the  trial,  it  appears 
that  one  of  them  was  absent  from  the  jury  room  a  while  after  the 


John  A.  Duncan,  et  al.,  v.  Madison  County  Court.      837 

case  was  submitted  to  them;  but  he  was  during  the  time  engaged 
with  one  of  the  attorneys  for  appellant,  on  legitimate  business ;  and 
it  is  not  shown  that  he  was  guilty  of  any  misconduct  during  his  ab- 
sence from  the  jury  room,  or  at  any  other  time  during  the  trial. 
While  waiting  for  this  juror,  another  absented  himself  a  short  time 
from  the  room,  and  may  have  said  that  they  had  made  a  verdict  in 
favor  of  the  plaintiff  before  it  was  returned  into  court.  This  was 
certainly  indiscreet  in  the  juror,  but  there  is  no  evidence  of  miscon- 
duct on  his  part,  or  such  a  violation  of  duty  as  to  prejudice  the 
rights  of  appellant.  The  separation  of  the  jury  without  the  permis- 
sion of  the  court  is  a  misdemeanor  for  which  the  court  might  pun- 
ish them.  But  it  is  not  sufficient  of  itself  to  vitiate  the  verdict,  more 
especially  as  it  appears  that  the  separation  was  after  the  verdict  had 
been  agreed  upon.  Brown  v,  M'Connel,  i  Bibb  265;  Yancy  v. 
Dower,  5  Litt.  8.  As  to  the  word  ''illicit,"  found  in  the  second 
paragraph,  it  is  meaningless  in  the  connection  in  which  it  is  found, 
and  did  not  in  any  way  affect  the  meaning  or  change  the  eflFect  of 
the  other  words  of  the  sentence,  which  was  perfect  without  it. 

After  a  mature  consideration  of  the  important  questions  pre- 
sented in  this  record,  we  feel  constrained  to  approve  the  rulings  of 
the  court  below.    Wherefore  the  judgment  is  affirmed, 

/.  /.  Landrtim,  for  appellant,     G,  W,  Craddock,  for  appellee. 


John  A.  Duncan,  et  al.,  v,  Madison  County  Court. 

County  Bonds  Issued  to  Build  Railroad — ^Power  of  Legislature  to  Le- 
galize. 

Where  county  bonds  were  issued  to  pay  for  stock  in  a  railroad,  but 
without  legal  authority,  the  general  assembly  has  the  power  to  legalize 
and  make  them  valid. 

Funds  of  County  from  Sale  of  Railroad  Stock  May  be  Used  to  Build 
Jail. 

The  surplus  funds  derived  by  a  county  from  the  sale  of  railroad 
bonds  held  by  it  may  be  devoted  to  the  use  of  building  a  county  Jail. 

APPEAL  FROM  MADISON  CIRCUI'F  COURT. 

October  6,  1875. 

Opinion  by  Judge  Lindsay  : 

The  fourth  section  of  the  act  relating  to  the  Louisville  &  Nash- 
ville Railroad  Company,  approved  the  9th  of  January,  1852,  Sess. 


838  Kentucky  Opinions. 

Acts  1 85 1 -2,  p.  738,  provides  that  counties  subscribing  for  capital 
stock  in  said  company  may  pay  their  subscriptions  in  three  several 
modes,  viz. : 

First.  By  the  issuing  and  delivering  to  the  company  the  bonds 
of  the  county,  subscribing  to  an  amount  equal  to  the  stock  sub- 
scribed for,  said  bonds  to  be  issued  with  coupon  attached,  under  the 
seal  of  the  county  court,  to  be  signed  by  the  presiding  judge  thereof, 
and  countersigned  by  the  clerk,  and  to  be  negotiable  and  payable 
to  the  said  Louisville  &  Nashville  Railroad  Company  in  the  city 
of  New  York,  at  not  more  than  twenty  years  from  the  date  of  issue, 
and  to  bear  interest  from  the  date  thereof  at  the  rate  of  six  per 
cent,  annually  in  the  city  of  New  York. 

Second.  By  the  levy  of  a  direct  tax  sufficient  to  pay  in  four 
years,  or  longer,  as  the  county  court  may  deem  expedient,  the  whole 
amount  due  for  the  stock  subscribed  for. 

Third.  By  the  issue  of  bonds,  of  the  nature  hereinbefore  set  out, 
to  be  delivered  to  the  company,  in  payment  of  one-half  the  amount 
agreed  to  be  paid  for  the  stock,  and  by  direct  tax  to  be  levied  to  pay 
the  remainder. 

On  the  2d  day  of  May,  1867,  the  county  court  of  Madison  county 
subscribed  for  and  on  behalf  of  said  county  three  thousand  five 
hundred  shares  of  said  stock.  Instead  of  paying  the  subscription  in 
one  of  the  modes  provided  by  law,  said  court  caused  to  be  issued 
and  sold  the  bonds  of  the  county,  payable  to  Walker  (&  Co.,  bankers 
in  the  city  of  New  York,  bearing  six  per  centum  interest,  payable 
annually.  Four  hundred  sixty-eight  bonds  of  $1,000  each  were 
issued  by  the  court  and  the  proceeds  applied  to  the  payment  of  the 
subscription  for  stock.  The  county  court  had  no  power  or  author- 
ity to  issue  and  sell  these  bonds,  and  it  is  a  question  of  doubt 
whether,  except  for  subsequent  legislation,  they  could  have  been 
collected  from  the  taxpayers  of  the  county,  even  by  innocent  hold- 
ers, for  value. 

After  about  one  hundred  of  the  bonds  had  been  sold,  the  general 
assembly  (for  the  purpose  of  removing  this  doubt),  by  an  act  ap- 
proved January  9,  1868.  the  preamble  to  which  recites  all  the  steps 
taken  by  the  county  court  in  the  matter,  enacted  "that  the  said  acts 
and  orders  of  the  Madison  County  Court  in  opening  the  poll,  hold- 
ing the  election,  in  levying  the  taxes  for  the  purposes  above  named, 
in  issuing  the  bonds,  in  appointing  the  commissioners  aforesaid 
and  ordering  the  sale  of  the  bonds,  and  all  acts  done  in  pursu- 
ance thereof,  be  and  the  same  are  hereby  legalized  and  made  valid, 


John  A,  Duncan,  et  al.,  v.  Madison  County  Court.      839 

as  fully  and  completely  as  if  the  orders  aforesaid  had  been  made  in 
conformity  to  law ;  and  any  and  all  bonds  issued  and  sold  under 
said  orders  shall  be  binding  upon  the  county  of  Madison  to  all  in- 
tents and  purposes." 

The  power  of  the  legislature  to  pass  this  act  cannot  be  questioned ; 
but  the  effect  of  the  act  was  not  to  place  the  bonds  upon  the  same 
footing  with  those  issued  pursuant  to  the  power  conferred  by  the 
act  relating  to  the  railroad  company  approved  March  9,  1852.  The 
bonds  were  declared  to  be  as  valid  and  binding  on  the  county  as 
though  there  had  been  in  existence,  at  the  time,  a  law  authorizing 
and  empowering  the  county  court  to  pursue  the  course  it  saw  proper 
to  adopt.  The  county  is  bound  to  pay  the  bonds,  but  the  holders 
have  no  such  Hen  upon  the  stock  of  the  railroad  company  subscribed 
for,  nor  upon  the  dividends  arising  from  that  stock,  as  sections  1 1  and 
12  of  the  act  of  January  9,  1852,  secured  to  other  holders  of  bonds 
issued  pursuant  to  the  provisions  of  that  act.  The  rights  of  the 
holders  of  the  bonds  issued  and  sold  by  Madison  county  are  to  be 
ascertained  by  reference  to  the  orders  of  the  county  court,  and  to 
the  act  of  January  9,  1868. 

The  fact  that  the  order  of  May  6,  1867,  directed  that  the  subscrip- 
tion for  stock  should  be  made  on  the  terms  set  forth  and  provided 
in  the  acts  incorporating  said  company  and  the  amendments  there- 
to, does  not  conflict  with  this  conclusion.  The  subscription  was,  no 
doubt,  properly  and  legally  made.  It  was  the  plan  adopted  by 
the  court  to  pay  the  sum  subscribed  without  legal  sanction,  up  to 
the  passage  of  the  act  of  1868.  If  the  appellants  have  any  claim  to 
or  lien  upon  the  fund  in  controversy  in  this  cause,  it  must  arise  out 
of  the  provisions  of  the  act  of  March  22,  1872.  2  Sess.  Acts  1871-2, 
p.  152.  Under  authority  conferred  by  that  act,  the  county  court  of 
Madison  county  caused  all  its  stock  in  the  railroad  company  to  be 
sold,  and  with  the  proceeds  it  has  purchased  all  the  bonds  of  the 
county  except  157  bonds  of  $1,000  each.  It  has  also  purchased, 
and  the  sinking  fund  commissioners  hold  for  the  county,  the  bonds 
of  other  counties,  amounting  in  the  aggregate  to  $156,000.  The 
remainder  of  the  proceeds  of  the  sale  of  said  stock,  amounting  to 
over  $55,000,  has  been  loaned  on  good  security  to  the  Louisville  !& 
Nashville  Railroad  Company.  Out  of  this  fund  the  county  court 
proposes  to  devote  to  the  erection  of  a  county  jail  the  sum  of  $20,- 
000;  and  these  appellants,  who  are  bondholders  and  taxpayers  of 
the  county,  seek  to  restrain  that  court  from  carrying  out  the  order 
made  with  that  view.    The  act  of  March  22,  1872,  authorized  the 


840  Kentucky  Opinions. 

county  court  to  sell  the  railroad  stock  of  the  county,  and  to  invest 
the  proceeds,  or  such  an  amount  thereof  as  may  be  deemed  best  by 
said  court  for  the  interest  of  the  county,  in  some  safe  and  solvent 
securities  or  bonds. 

The  second  section  of  the  acts  provides  that  such  bonds  and  se- 
curities, when  purchased,  shall  be  held  for  the  benefit  of  the  county, 
and  the  interest  accruing  on  them  shall  be  applied  by  the  sinking 
fund  commissioners,  "first,  to  the  payment  of  the  interest  on  the  out- 
standing county  railroad  bonds ;  and  if  a  surplus  shall  accrue  after 
the  payment  of  such  interest,  the  commissioners  shall  apply  such 
surplus  to  the  purchase  of  outstanding  Madison  county  bonds,  or 
invest  the  same  in  other  good  and  solvent  securities,  or  in  such  safe 
and  profitable  manner  as  the  court  may  direct." 

It  will  be  observed  that  the  controlling  idea  of  this  act  is  to  ben- 
efit the  county,  and  to  secure  and  advance  its  interests.  Such  ad- 
vantages as  inure  to  the  holders  of  the  county  bonds,  arise  inciden- 
tally, and  must  be  held  to  be  subordinate  to  the  interests  of  the 
county. 

To  the  extent  that  the  county  court  has  deemed  it  best  for  the 
interests  of  the  county  to  invest  the  proceeds  of  the  sale  of  the  rail- 
road stocks  in  bonds  or  securities,  it  has  irrevocably  devoted  the 
sum  so  invested,  and  the  interests  accruing  thereon,  to  the  purchase 
of  the  bonds  of  the  county,  and  to  the  payment  of  the  interest  an- 
nually accruing  on  them.  But  to  this  $55,000  that  the  county  court 
has  not  deemed  it  best  for  the  interests  of  the  county  to  invest,  the 
holders  of  the  county  bonds  have  no  right  or  claim.  As  appellants, 
as  holders  and  owners  of  county  bonds,  have  no  right  or  claim  to 
and  no  Hen  upon  this  fund,  they  have  no  right  to  object  to  its  ap- 
propriation by  the  county  court. 

Nor  do  we  think  they  have  the  right  as  taxpayers  of  the  county 
to  have  the  county  court  restrained  from  expending  such  portion 
of  that  fund  as  may  be  necessary  to  erect  a  county  jail.  The  order 
of  the  court  on  that  subject  directs,  "That  an  amount  not  exceeding 
$20,000,  required  to  build  a  county  jail,  shall  be  paid  out  of  that 
portion  of  the  railroad  sinking  fund  now  in  the  hands  of  the  Louis- 
ville &  Nashville  Railroad  Company." 

It  is  agreed  in  the  record  before  us  that  the  jail  of  Madison 
county  has  been  condemned  by  frequent  reports  of  grand  juries  for 
several  years  past,  and  that  the  necessity  for  a  new  jail  is  not  open 
to  question.  It  is  the  imperative  duty  of  the  county  court  of  Madi- 
son county,  setting  as  a  court  of  claims,  to  cause  to  be  erected  and 


John  A.  Duncan,  et  al.,  v.  Madison  County  Court.      841 

kept  in  repair  a  secure  and  sufficient  county  jail;  and  for  this  pur- 
pose it  may  appropriate  any  money  or  credits  belonging  to  and  ap- 
plicable to  the  payment  of  demands  against  the  county.  By  the 
order  of  court  of  date  April  7,  1867,  which  was  made  valid  and 
binding  by  the  act  of  January  9,  1868,  the  county  court  reserved 
the  right  to  sell  the  stock  proposed  to  be  tak«n  in  the  Louisville  & 
Nashville  Railroad  Company,  if  deemed  expedient,  and  provided 
that  in  case  it  should  not  be  sold,  the  dividends  tjiereon  should  be 
applied  annually  to  the  payment  of  the  interest  on  the  bonds  to  be 
issued  by  the  county,  and  if  said  dividends  should  exceed  the  inter- 
est on  the  bonds,  the  excess  should  be  set  apart  as  a  sinking  fund, 
which  fund  might,  at  the  discretion  of  said  court,  be  distributed 
among  the  taxpayers  of  the  county  pro  rata,  or  applied  to  the  lessen- 
ing of  the  county  levy,  and  of  the  taxes  for  county  purposes. 

In  1869  the  railroad  company  declared  a  dividend  payable  in 
stock  of  40  per  cent.,  and  in  payment  thereof  there  was  issued  and 
delivered  to  the  county  of  Madison  one  thousand  four  hundred 
shares  of  stock,  of  the  nominal  value  of  $140,000.  All  this  stock 
was  a  clear  surplus,  and  under  the  reserved  powers  set  out  and  de- 
fined in  the  order  of  April  7,  1867,  it  might  have  been  sold  by  the 
county  court,  and  its  proceeds  distributed  among  the  taxpayers  of 
the  county,  or  applied  to  the  lessening  or  extinguishment  of  county 
levy  and  other  county  taxes. 

The  act  of  March  22,  1872,  was  not  intended  to  abridge  the  pow- 
ers of  the  county  court  as  to  the  surplus.  It  imposes  no  obligation 
upon  that  court  to  invest  for  the  benefit  of  the  bondholders  the  pro- 
ceeds of  the  $140,000  stock  of  which  it  is  made  up.  It  appears  that 
this  stock  was  sold  for  nearly  double  the  sum  now  loaned  to  the 
railroad  company,  and  fully  five  times  as  much  as  the  order  of  court 
proposes  to  apply  to  the  erection  of  the  jail. 

We  do  not  doubt  the  right  of  the  county  court  to  treat  the  fund 
in  the  hands  of  the  railroad  company  as  an  excess  of  dividends,  in 
the  sense  of  the  order  of  April  7,  1867 ;  and  as  the  expenditure  about 
to  be  made  is  clearly  within  the  letter  and  spirit  of  that  order,  the 
circuit  court  properly  refused  to  interfere  to  restrain  the  county 
court  from  carrying  out  the  order  providing  for  the  erection  of  a 
county  jail,  and  for  the  payment  of  the  expense  thereby  incurred, 
out  of  this  fund. 

Judgment  affirfned. 

C,  J.  Bronston,  W,  B,  Smith,  for  appellants. 
W.  C.  Miller,  T.  /.  Scott,  for  appellee. 


842  Kentucky  Opinions. 

Vassam  v.  Hamilton. 

Appealfr— Causes  Stricken  from  the  Docket 

Parties  to  a  cause  which  is  stricken  from  the  docket  upon  the  order 
of  the  court  are  out  of  court;  the  effect  of  such  order  is  the  same  as  if 
the  appeal  had  been  dismissed. 

October  7,  1875. 
Opinion  by  Judge  Cofer  : 

This  case  was  stricken  from  the  docket  at  the  last  term,  and  that 
order  is  beyond  the  control  of  the  court ;  and  as  we  can  neither  set 
it  aside  nor  disregard  it,  the  only  question  raised  by  the  motion  of 
counsel  for  appellants  is  whether  the  order  is,  in  effect,  a  dismissal 
of  the  appeal.  Certainly  after  the  order  was  made  the  appellees 
were  not  bound  to  take  notice  of  what  was  being  done  in  court,  any 
more  than  if  the  appeal  had  been  dismissed.  If,  after  a  case  has 
been  stricken  from  the  docket,  the  court  may  at  a  subsequent  term 
order  it  to  be  redocketed,  and  allow  the  appeal  to  proceed  as  if  no 
order  had  been  made,  it  would  be  impossible  to  say  when  this  power 
of  the  court  would  cease ;  and  parties  would  never  be  able  to  know, 
in  such  cases,  when  their  rights  were  settled.  We  think  it  is  clear 
that  the  parties  are  out  of  court,  just  as  if,  instead  of  striking  the 
cause  from  the  docket,  the  appeal  had  been  dismissed. 

Motion  overruled. 


Caldwell  &  Harwood  v.  Trustees  of  Town  of  Shelbyville. 

Townfr— Power  of  Chairman  of  Board  of  Trustees. 

In  the  absence  of  any  power  given  to  the  chairman  of  the  board  of 
trustees  of  a  town  to  bind  the  town  by  contract,  no  such  power  exists, 
and  where  he  acts  against  the  wishes  of  a  majority  of  the  board  in  at- 
tempting to  make  a  contract  his  action  is  void. 

APPEAL  PROM  SHELBY  CIRCUIT  COURT. 

October  12,  1875. 

Opinion  by  Judge  Pryor  : 

We  have  been  referred  to  no  authority  by  the  learned  counsel 
sustaining  the  right  of  appellants  to  recover  upon  the  facts  alleged 


R.  H.  Field  v,  J.  F.  Smith.  843 

in  the  petition.  The  contract  with  the  chairman  of  the  board  of 
trustees  of  the  town  of  Shelbyville  must  be  regarded  as  having 
been  made  in  his  individual  capacity,  in  the  absence  of  any  power 
conferred  upon  him  by  the  town  charter  to  make  such  a  contract, 
and  since  the  facts  alleged  show  that  he  was  acting  against  the 
wishes  of  a  majority  of  the  board  in  employing  counsel  to  prevent 
the  town,  through  its  trustees,  from  taking  stock  in  the  gas  com- 
pany. 

Those  having  the  power  to  contract  with  and  employ  counsel,  not 
only  failed  to  invest  the  chairman  of  their  board  with  this  right, 
but  were  resisting  his  whole  action  in  the  premises.  The  trustees 
had  the  right,  as  a  board,  to  employ  counsel  to  prevent  the  citizens 
in  their  attempt  to  nullify  the  action  of  a  majority  of  the  board,  and 
the  fact  that  the  chairman  of  the  board  was  correct  in  his  views  as 
to  the  legality  of  the  act  by  which  the  stock  was  taken  or  the  money 
subscribed,  raises  no  implied  promise  on  the  part  of  the  board  as 
such,  to  pay  him  or  the  counsel  employed. by  him  for  their  services. 
The  chairman  in  this  case  was  not  acting  in  pursuance  of  any  reso- 
lution of  the  board,  but  was  acting  with  the  avowed  purpose  of  de- 
f eating  the  will  of  a  majority  of  the  board. 

When  acting  officially,  he  must  show  his  authority  to  bind  the 
corporation,  and  this  is  a  difficult  undertaking  when  it  is  admitted 
that  he  was  attempting  to  do  an  act  that  those  from  whom  he  must 
have  derived  the  power  to  make  such  contract  were  at  the  time  re- 
sisting.   The  judgment  of  the  court  below  is  affirmed. 

Caldwell  &  Harwood,  for  appellants.    J.  S.  Morris,  for  appellees. 


R.  H.  Field  v.  J^  F.  Smith. 

Levy  of  Execution — How  Made— On  Standing  Com. 

A  levy  of  an  execution  may  be  made  on  corn  not  severed  from  the 
ground  by  the  officer  going  on  each  parcel  of  ground  where  the  corn 
was  and  indorsing  his  action  on  the  execution  and  signing  it  on  the 
day  he  makes  the  levy.  The  levy  puts  the  officer  in  constructive  pos- 
session, and  on  the  sale  under  such  levy  the  purchaser  is  invested  with 
title. 

APPEAL  FROM  BULLITT  CIRCUIT  COURT. 

October  15,  1875. 

Opinion  by  Judge  Peters  : 

Maraman  proves  he  levied  the  execution  on  the  corn,  which  was 


844  Kentucky  Opinions. 

not  severed  from  the  ground  on  the  2d  of  October,  1874,  by  going 
on  each  field  or  separate  parcel  of  ground  where  the  corn  was 
standing,  they  having  been  shown  him  by  one  of  the  tenants  of  the 
defendant  in  the  execution;  that  one  or  more  of  the  tenants  who 
cultivate  it  were  with  him  when  he  made  the  levy,  they  owning  a 
part  of  the  com,  and  that  the  levy  was  indorsed  on  the  fi.  fa.  and 
signed  by  him  on  the  same  day  it  was  made.  The  levy  of  the  exe- 
cution on  the  corn  put  the  officer  in  the  constructive  possession  of 
it,  and  on  the  sale  of  it  by  him  would  invest  the  purchaser  with  the 
title. 

The  defendant  in  the  execution  seems  to  be  a  corporation,  and 
notice  to  the  tenants,  or  some  of  them  who  cultivated  the  com,  was 
sufficient.  Perceiving  no  error,  therefore,  in  the  judgment,  the  same 
is  affirmed, 

R.  H,  Field,  for  appellant.    R.  /.  Meyler,  for  appellee. 


L.  B.  Hudson  v.  B.  Stone. 


Levy  on  Propertir— Rights  of  Third  Persons  Claiming  the  Property. 

Where  an  officer  levies  on  personal  property  claimed  by  a  third  party 
he  must  appoint  appraisers  to  appraise  the  property,  and  the  claimant 
may  refuse  to  give  the  required  bond  until  the  officer  takes  such  action. 

APPEAL  FROM  JEFFERSON  COURT  OF  COMMON  PLEAS. 

October  IS,  1S75. 

Opinion  by  Judge  Cofer: 

When  an  officer  has  levied  an  execution  upon  personal  property, 
and  any  person  other  than  the  defendant  in  the  execution  claims  the 
property  and  desires  to  suspend  the  sale,  it  is  the  duty  of  the  officer 
to  select  three  housekeepers  and  administer  to  them  an  oath  to  make 
a  fair  appraisement  of  each  article  of  the  property,  whose  appraise- 
ment shall  be  recited  in  the  bond.    Sees.  713-714,  Civil  Code. 

Until  such  appraisement  is  made,  the  claimant  may  refuse  to 
give  the  bond,  and  the  officer  will  have  no  right  to  proceed  with  the 
levy.  But  if  the  officer  selects  but  two  instead  of  three  persons  to 
make  the  appraisement,  and  the  claimant  executes  bond  reciting 
such  appraisement,  the  irregularity  will  be  waived,  and  the  bond 
will  be  valid  as  a  statutory  bond. 

We  are,  therefore,  of  the  opinion  that  the  court  properly  over- 


L.  B.  Hudson  v.  B.  Stone.  845 

ruled  the  appellant's  motion  to  quash  the  bond.  Nor  did  the  court 
err  in  striking  the  appellant's  written  response  to  the  motion  from 
the  files.  Sec.  479  of  the  Code  provides  that  judgments  may  be 
rendered  upon  motions  in  the  several  classes  of  cases  therein  enu- 
merated, and  in  all  other  cases  specially  authorized  by  statute.  Sec. 
716  provides  that  judgment  may  be  rendered  on  motion  upon  a 
bond  given  to  suspend  a  sale  of  property  under  execution,  and  Sec. 
484  provides  that  motions  shall  be  heard  and  determined  without 
written  pleadings,  and  that  judgment  shall  be  given  according  to 
law  and  the  rules  of  equity.  It  results,  therefore,  that  no  written 
pleadings  are  allowed  in  such  case.    Williams  v.  Smith,  4  Bush  540. 

The  appellant  had  a  mortgage  upon  the  property  levied  upon  for 
a  sum  greatly  exceeding  its  value,  and  it  was  on  account  of  his 
claim  to  it  under  his  mortgage  that  he  executed  the  bond.  The  ap- 
pellee insists,  however,  that  as  the  interest  of  Bryant,  i.  e.,  the 
equity  of  redemption,  was  subject  to  levy  and  sale  under  his  execu- 
tion, the  property  was  so  far  subject  to  the  execution  as  to  render 
the  appellant  liable  on  the  bond  for  the  full  value  of  the  property, 
not  exceeding  the  amount  of  the  execution  and  ten  per  cent,  there- 
on. 

This  question  seems  to  be  settled  by  the  decision  in  Smith 
V.  Wells's  Adm'x,  4  Bush  928.  The  facts  of  that  case  were  these: 
W.  W.  Smith  and  wife  rented  a  farm  of  Middleton,  and  gave  bond 
for  the  rent,  with  Reuben  Smith  as  surety.  While  Smith  and  wife 
occupied  the  leased  premises,  executions  against  W.  W.  Smith  were 
levied  upon  twenty-five  fat  hogs  on  the  premises,  as  the  property 
of  said  W.  W.  Smith.  The  surety,  Reuben  Smith,  claimed  the  hogs, 
and  executed  bond  to  suspend  the  sale,  and  subsequently  paid  the 
rent  and  took  an  assignment  from  Middleton  to  himself,  of  the  rent 
bond,  and  of  all  the  rights  of  the  landlord.  The  execution  plaintiff 
moved  for  judgment  on  the  bond,  and  judgment  was  rendered  ac- 
cordingly;  but  this  court  reversed  the  judgment,  holding  that  as  the 
landlord  had  a  lien  upon  the  hogs  for  the  rent,  and  had  assigned 
that  lien  to  Reuben  Smith,  the  latter  was  thereby  substituted  to  the 
rights  of  the  former,  and  that  as  the  value  of  the  property  appeared  to 
be  less  than  the  claim  for  rent,  the  execution  plaintiff  was  not  enti- 
tled to  recover  on  the  bond.  This  case  is  not  distinguishable  from 
that,  and  we  must  hold  that  the  court  erred  in  rendering  judgment 
against  the  appellant,  unless,  as  claimed  by  the  appellee,  the  mort- 
gage was  fraudulent. 

The  evidence  relied  upon  to  establish  the  fraudulent  character  of 


846  Kentucky  Opinions. 

the  mortgage  is  that  it  was  not  recorded  for  several  months  after 
it  was  executed  and  acknowledged,  and  that  the  appellant,  since  the 
execution  of  the  bond  which  is  the  foundation  of  this  proceeding, 
consented  to  the  removal  of  the  property  from  the  state. 

Bryant  and  the  appellant  swore  that  the  indebtedness  expressed 
in  the  mortgage  in  fact  existed,  and  that  there  remains  an  unpaid 
balance  of  over  four  thousand  dollars,  and  that  after  the  property 
was  removed  to  another  state,  a  new  mortgage  was  executed  upon 
it ;  and  there  is  nothing  in  the  record  to  contradict  their  statements. 

Wherefoie  the  judgment  is  reversed,  and  the  cause  remanded  for 
a  new  trial  upon  principles  not  inconsistent  with  this  opinion. 

W.  O,  Dodd,  for  appellant,    James  Harrison,  for  appellee. 


Sam  Johnson,  et  al.,  v.  Clifton  Rodes,  et  al. 

Misjoinder  of  Actions. 

If  no  objections  are  made  in  the  court  below  (m  account  of  mis- 
joinder of  actions^  no  objection  thereto  can  be  made  in  this  court 

Setting  Aside  Judgment. 

Where  in  a  cause  process  was  served  and  a  judgment  rendered,  a 
motion  to  set  such  judgment  aside,  made  nearly  three  years  after  its 
entry,  will  be  denied.  If  relief  is  sought  against  such  a  judgment  it 
must  be  by  a  new  action. 

Record  on  AppeaL 

Where  in  the  trial  court  a  party  offers  to  file  a  pleading,  which  is 
denied  by  the  court,  such  pleading  does  not  become  a  part  of  the 
record  on  appeal,  unless  made  so  by  bill  of  exceptions. 

APPEAL  FROM  BOTLE  CIRCUIT  COURT. 

October  21,  187?. 

Opinion  by  Judge  Lindsay  : 

The  mortgage  executed  to  Thomas  and  Bedlow  passed  the  entire 
estate  of  Johnson  and  wife,  including  the  homestead  exemption. 
The  petition  of  Thomas  &  Bedlow  certainly  presented  a  cause  of 
action  and  a  right  of  recovery  in  each  of  the  plaintiffs.  If  there 
was  a  misjoinder  of  actions,  a  question  we  do  not  decide,  it  was  not 
objected  to  in  the  court  below,  and  cannot,  therefore,  be  taken  ad- 
vantage of  here. 

Johnson  and  wife  were  regularly  served  with  process,  and  judg- 


J.  M.  Delph  V,  A.  B.  Hewitt,  et  al.  847 

ment  rendered  against  them  by  confession.  Nearly  three  years 
afterwards  Mrs.  Johnson  moved  to  have  the  judgment  set  aside, 
and  to  be  allowed  to  file  an  answer.  The  court  below  had  no  power 
to  set  the  judgment  aside  upon  motion.  If  there  exists  any  reason 
why  the  judgment  shall  be  modified  or  vacated  as  to  her,  she  must 
by  an  original  proceeding  apply  for  such  relief  in  the  mode  pre- 
scribed by  Sec.  581,  Civil  Code  of  Practice. 

Further  than  this,  Mrs.  Johnson  cannot,  so  long  as  the  judgment 
remains  in  force,  have  the  question  as  to  her  right  to  a  homestead 
or  its  value  retried.  But  if  this  were  not  so,  she  could  have  no  re- 
lief upon  this  appeal.  The  record  shows  that  she  and  her  husband 
offered  to  file  answers,  and  that  their  motions  to  file  were  over- 
ruled. These  answers,  therefore,  did  not  become  parts  of  the  rec- 
ord. They  have  not  been  made  so  by  bill  of  exceptions  or  otherwise. 
The  bill  of  exceptions  was  offered  and  rejected  by  the  court,  but 
such  answers  are  neither  incorporated  in  the  bill,  nor  identified  by  it. 

We  have  no  evidence  that  the  papers  copied  by  the  clerk  were  the 
answers  offered,  except  his  statement  that  such  is  the  fact.  It  has 
been  repeatedly  decided  that  the  clerk  cannot  certify  a  paper  that 
has  not  been  made  part  of  the  record. 

We  need  not  pass  upon  the  plea  of  limitation.  The  indorsement 
on  this  record  makes  Qifton  Rodes  an  appellee.  The  record  does 
not  show  that  he  has  any  connection  with  the  cause.  The  two  sales 
were  properly  set  aside.  It  was  the  fault  of  the  appellees  that  the 
mistake  occurred  in  the  first  sale,  and  the  commissioner  should  have 
awaited  direction  from  the  chancellor  before  selling  the  second  time. 

Judgment  affirmed  on  original  and  cross-appeal. 

Thompsons,  for  appellants,    Durham  &  Jacob,  for  appellees. 


J.  M.  Delph  v.  A.  B.  Hewitt,  et  al. 


Judicial  Sale  of  Real  Estate — Descriptions  Given  in  Advertisement. 

One  buying  real  estate  at  Judicial  sale  is  not  bound  to  Inspect  the 
premises,  but  has  a  right  to  rely  upon  the  accuracy  and  truthfulness 
of  the  description  which  is  given  by  the  Judgment  and  the  master's' 
advertisement,  and  he  cannot  he  compelled  to  accept  a  conveyance  un- 
less it  conforms  suhstantlally  to  the  description  by  whic&  he  was  in- 
duced to  bid. 


848  Kentucky  Opinions. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

October  22,  1875. 

Opinion  by  Judge  Lindsay: 

Lot  No.  2  is  described  in  the  judgment  of  the  court  as  "lot  No.  2, 
having  a  front  on  Waters  street  of  sixteen  feet,  eight  inches,  extend- 
ing back  the  same  width  fifty-one  feet,  to  vacant  space  marked  on 
said  plat  of  division."  The  judgment  further  provides  that  "the  cen- 
ter of  the  walls  of  the  houses  as  they  stand  on  said  property  is  the 
dividing  line  between  the  said  lots  and  improvements.  And  the 
area  marked  Vacant  space'  on  the  said  map  being  16  1-3  feet  by  20 
feet,  is  to  be  common  appendage  to  lots  Nos.  i,  2,  3,  4,  5  and  6." 
The  marshal,  in  his  advertisement  of  the  time,  place  and  terms  of 
sale,  describes  the  property  to  be  sold  precisely  as  it  is  described  in 
the  judgment.  J.  M.  Delph,  who  became  the  purchaser  of  lot  No. 
2,  excepted  to  the  confirmation  of  the  marshal's  report  upon 
various  grounds,  among  them,  "that  the  property  is  heavily  encum- 
bered with  taxes  due  to  the  state  of  Kentucky,  and  to  the  city  of 
Louisville,  *  *  *  and  neither  the  state  of  Kentucky  nor  the  city  of 
Louisville  is  a  party  to  this  action  or  bound  by  the  decree  herein ;  and 
that  the  property  so  sold  is  not  such  as  it  was  represented  at  said 
sale  to  be,  and  as  it  is  described  in  the  decree  herein ;  that  there  is 
no  vacant  space  such  as  represented  on  the  plat  according  to  which 
said  sale  was  made ;  that  a  large  portion  of  said  space  is  occupied 
by  privies  used  by  the  occupants  of  the  other  lots  shown  on  said 
plat,  and  the  use  of  said  space  is  not  free  or  common  to  the  lots,  i, 
2,  3,  4,  5  and  6,  and  said  privies  are  a  nuisance  to  said  lot  No.  2, 
and  the  occupants  thereof,  and  greatly  diminish  the  value  of  said 
lot."  At  the  time  of  said  sale,  the  said  Delph  believ^'d  that  said 
property  was  such  as  it  was  represented  to  be,  and  that  said  space 
was  vacant  and  free  to  the  use  of  lot  No.  2 ;  and  if  he  had  known 
the  true  condition  of  same  he  would  not  have  bid  at  said  sale. 

The  chancellor  ought  to  have  caused  the  encumbrances  growing 
out  of  the  existence  of  the  tax  claims  of  the  state  and  city  to  be  re- 
moved by  appellees  before  compelling  Delph  to  accept  a  conveyance. 
Upon  the  trial  of  the  exception  last  stated,  it  was  agreed  that  Delph 
had  not  examined  the  property,  and  it  seems  that  he  was  not  ap- 
prised, at  the  time  of  the  sale,  of  the  purposes  to  which  the  vacant 
space  had  been  devoted.  He  was  not  bound  to  inspect  the  premises. 
He  had  the  right  to  rely  upon  the  accuracy  and  truthfulness  of  the 


City  of  Bowling  Green  v,  Albert  Mitchell,  et  al.     849 

description,  which  appellees,  through  their  own  judgment  and 
through  the  master's  advertisement,  gave  of  the  property;  and  he 
cannot  be  compelled  to  accept  a  conveyance  and  pay  for  the  lot  un- 
less it  conforms  substantially  to  the  description  by  which  appellees  in- 
duced him  to  bid. 

It  is  in  proof  that  the  space  described  in  the  judgment  and  ad- 
vertisement as  vacant  is  occupied  by  privies  used  by  the  occupants 
of  the  other  houses  and  lots,  to  which  it  is  an  appendage;  that  the 
house  on  lot  No.  2  has  no  other  avenue  than  said  "space"  through 
which  to  receive  light  and  air,  in  the  rear ;  that  the  privies  render  the 
air  supplied  by  way  of  said  space  offensive  and  impure ;  and  that  the 
existence  of  the  privies  depreciates  the  value  of  lot  No.  2  about 
five  hundred  dollars,  or  about  one-third  of  the  price  agreed  to  be 
paid  for  it.  It  is  certain  that  in  a  transaction  between  individuals 
disconnected  from  a  proceeding  in  court,  a  purchase  of  this  char- 
acter would  not  be  enforced.  If  appellees  can  have  a  specific  execu- 
tion of  the  contract  made  with  the  chancellor  for  their  benefit,  they 
will  thereby  succeed  in  compelling  Delph  not  only  to  accept  and  pay 
for  property,  dift'ering  in  a  material  particular  from  that  sold  to 
him,  but  of  greatly  less  value. 

They  can  obtain  no  such  an  unconscientious  advantage  through 
the  instrumentality  of  a  court  of  equity.  The  judgment  of  the 
chancellor  confirming  the  report  of  the  sale  to  Delph  is  reversed, 
and  the  cause  remanded  with  instructions  to  sustain  his  exceptions, 
and  for  further  proper  proceedings. 

Muxr  &  Booth,  for  appellant.    James  Harrison,  for  appellees. 


City  of  Bowling  Green  i\  Albert  Mitchell,  et  al. 

Cities — Taxation  to  Construct  Water  Works. 

While  the  trustees  of  a  city  are  authorized  to  levy  a  tax  to  raise 
money  to  construct  water  works,  such  trustees  have  no  power  to  make 
an  unequal  distribution  of  the  burden  of  taxation  between  the  citizens. 
They  have  no  power  in  addition  to  a  general  levy  on  all  the  property 
of  the  municipality,  to  assess  adjoining  property  by  the  front  foot  to 
raise  money  to  pay  interest  on  its  bonds  or  to  extend  such  water 
works  system. 


54 


850  Kentucky  Opinions. 

APPEAL  FROM  WARREN  CIRCUIT  COURT. 

October  22,  1876. 

Opinion  by  Judge  Pryor  : 

The  chairman  and  board  of  trustees  of  the  city  of  Bowling  Green, 
in  order  to  place  in  successful  operation  the  water  works  contem- 
plated by  the  act  incorporating  the  company,  were  empowered  to 
assess  and  collect  a  tax  upon  the  real  and  personal  estate  in  the  city 
subject  to  the  taxation  for  ordinary  city  purposes,  as  well  as  a  poll 
tax,  in  such  manner  and  amount  as  they  may  deem  equitable  and 
just.  City  bonds  were  also  authorized  to  be  issued,  with  coupons 
attached,  at  a  rate  of  interest  not  exceeding  eight  per  cent,  per  an- 
num, as  a  means  of  payment  for  the  work  contemplated.  These 
bonds  were  issued,  and  the  works  undertaken  and  completed,  the 
city  incurring  a  large  liability,  for  which  its  bonds  are  outstanding. 

The  city  authorities,  for  the  purpose  of  liquidating  the  interest 
on  these  bonds,  and  perhaps  extending  the  construction  of  the  water 
works,  passed  this  ordinance :  "A  tax  of  twenty-five  cents  on  each 
one  himdred  dollars  worth  of  real  estate  fronting  and  along  the 
line  of  the  pipes  of  the  Bowling  Green  Water  Works,  and  not  ex- 
ceeding two  hundred  and  ten  feet  from  the  line  of  the  pipes  of  said 
water  works,  is  hereby  levied  for  the  year  1873,  which,  when  col- 
lected, shall  be  used  exclusively  for  water  works  purposes." 

It  is  admitted  by  the  answer  that  this  tax  is  levied  for  the  purpose 
of  paying  the  interest  on  the  city  bonds,  and  may,  perhaps,  be  in- 
tended to  construct  the  works  in  other  parts  of  the  city.  An  addi- 
tional tax  seems  to  have  been  imposed  also  on  all  the  property  of 
the  town,  of  ten  cents  for  every  hundred  dollars,  to  go  in  discharge 
of  the  principal  debt.  It  is  manifest  that  a  large  grant  of  power 
was  made  to  the  board  of  trustees  by  the  provisions  of  the  act  of 
incorporation;  but  the  language  empowering  them  to  assess  and 
collect  a  tax  in  such  manner  and  amount  as  they  may  deem  most 
equitable,  vested  them  with  no  power  to  make  an  unequal  distribu- 
tion of  the  burden  of  taxation  between  the  citizens,  or  to  disregard 
the  well-established  doctrine  of  uniformity  and  equality  in  the  im- 
position of  taxes.  In  the  present  case,  these  bonds  and  the  interest 
thereon  are  debts  due  by  the  whole  city  for  expenditures  already 
made,  and  there  is  no  principal  recognized  by  which  such  discrim- 
ination can  be  made  as  requires  that  one  debtor,  only  equally  liable 
with  the  rest,  shall  be  made  to  pay  the  whole  debt,  or  his  undue 


C.  HOSKINS,  ET  AL.,  V.  JOHN  CoOK,  ET  AL.  85 1 

proportion  of  the  burden,  or  when  applied  to  taxation,  that  his 
property  shall  be  assessed  for  a  greater  sum  than  his  regular  prop- 
erty, equally  liable  of  the  same  kind  and  value. 

This  mode  of  taxation  in  the  present  case  has  no  precedent  upon 
which  it  can  be  maintained.  Many  cases  have  been  decided  by  this 
court  where  local  taxation  has  been  imposed  on  the  owners  of  the 
property  in  towns  and  cities  for  the  purpose  of  making  such  im- 
provements in  front  of  the  property  as  has  enhanced  its  value,  or 
from  which  the  owner  derived  a  peculiar  local  benefit;  but  where  a 
debt  has  been  incurred  by  a  city  in  making  such  improvements,  we 
know  of  no  rule  that  would  require  a  portion  of  the  citizens  only 
to  bear  the  burden.  If  a  tax  had  been  imposed  on  the  real  estate 
fronting  the  improvement  for  the  purpose  of  constructing  it,  such 
as  laying  down  pipes,  etc.,  the  taxation  might  there  be  made  equal 
and  uniform  by  requiring  the  other  property,  which  the  improve- 
ment is  estimated  to  help,  to  be  taxed  in  the  same  way ;  but  in  the 
present  case,  where  the  work  in  front  of  the  property  has  been  com- 
pleted, and  the  debt  incurred  by  the  whole  city,  an  ordinance  re- 
quiring the  property  in  a  certain  part  of  the  town  to  pay  the  debt 
or  to  tax  this  property  more  than  other  property  of  the  like  kind  to 
aid  in  extending  the  improvement,  is  unconstitutional  and  void. 

Each  taxpayer  is  liable  to  pay  upon  the  amount  and  value  of 
property  owned  by  him,  or  the  value  of  the  kind  of  property  taxed, 
the  whole  city  to  pay  this  city  debt.  Such  a  mode  of  taxation  ap- 
pears as  near  uniformity  and  equality  as  can  be  arrived  at.  Malchus 
V,  District  of  Highlands,  4  Bush  547.  The  ordinance  imposing  the 
tax  of  twenty-five  cents  on  the  hundred  dollars  is  null  and  void. 
There  was  no  demurrer  to  the  petition,  and  if  there  had  been  this 
proceeding  is  sustained  by  the  case  of  the  Cypress  Pond  Draining^ 
Co.  V,  Hooper,  et  aL,  2  Met.  350.  The  judgment  of  the  court  below, 
perpetrating  the  injunction,  is  affirmed, 

W,  L.  Dulaney,  for  appellant. 

R.  Rodes,  H.  T.  Clark,  for  appellees. 


C.  HOSKINS,  ET  AL.,  V.  JOHN  CoOK,  ET  AL. 

Surety  of  Execution — Limitations. 

A  surety  for  an  executor  to  whom  a  decedent's  estate  has  been  trans- 
ferred is  discharged  from  all  liiabillty  as  such  to  a  distributee,  dev- 
isee or  ward  when  five  years  shall  have  elapsed  without  suit  after  the 
cause  of  action  accrued. 


852  Kentucky  Opinions. 

APPEAL  FROM  TAYLOR  CIRCUIT  COURT. 

June  23»  1875. 
Opinion  by  Judge  Pryor: 

The  appellants,  who  were  the  sureties  of  Wilson,  as  executor  of 
Richardson,  should  have  been  discharged  from  liability  on  his  bond 
upon  the  plea  of  the  statute  of  limitations.  The  executor  qualified 
on  the  1st  of  February,  1865,  ^^^  the  present  action  was  instituted 
on  the  17th  of  September,  1873.  ^  surety  for  an  executor,  admin- 
istrator, guardian  or  curator,  or  for  a  sheriff,  to  whom  a  decedent's 
estate  has  been  transferred,  shall  be  discharged  from  all  liability  as 
such  to  a  distributee,  devisee  or  ward,  when  five  years  shall  have 
elapsed  without  suit  after  the  cause  of  action  accrued.  The  evi- 
dence conduces  to  show  that  the  appellants  secured  of  the  execu- 
tor a  note  on  Jarboe,  belonging  to  the  estate  of  Richardson,  and  that 
this  note  was  transferred  to  them  as  an  indemnity  for  their  liability 
as  sureties.  Although  Jarboe  may  have  been  insolvent  when  this 
transfer  was  made,  still,  if  the  sureties  afterwards  collected  it,  they 
should  account  to  the  estate  or  the  distributees  for  the  amount,  de- 
ducting first  the  costs  incurred  in  making  the  collection.  It  seems 
that  they  made  some  payment  out  of  their  own  means  to  the  widow 
or  distributees  for  the  executor,  and  at  his  instance,  if  so,  the  pay- 
ments thus  made  should  be  applied  as  a  credit  on  this  claim.  As  to 
the  Jarboe  debt,  the  case  is  left  open,  that  the  parties  may  take  fur- 
ther proof  showing  the  extent  of  the  liability  of  appellants  upon  that 
claim  only,  and  may  amend  their  pleadings  for  this  purpose. 

The  judgment  is  reversed  and  cause  remanded  for  further  pro- 
ceedings consistent  with  this  opinion. 

/.  R.  Robinson,  D,  G,  Mitchell,  for  appellants, 
W,  Howell,  for  appellees. 


B.  Small's  Adm'r,  z\  A.  S.  Jones,  Adm'r. 

New  Trial — Newly  Discovered  Evidence. 

One  about  to  go  into  trial  is  required  to  make  preparation  and  a  dUi- 
gent  effort  to  discover  and  produce  his  evidence,  and  a  new  trial  on 
account  of  newly  discovered  evidence  wiU  be  denied  where  it  is  not 
shown  that  such  evidence  could  have  been  discovered  and  produced  at 
the  trial  by  proper  diligence. 


\ 


p.  p.  AND  J.  O.  Martin  v.  Commonwealth.  853 

APPEAL  FROM  McCRACKEN  CIRCfUIT  COURT. 

October  26,  1875. 

Opinion  by  Judge  Lindsay  : 

This  is  a  proceeding  to  obtain  a  new  trial  of  an  action  at  law. 
The  appellant  was  an  administrator,  and  was  under  no  disabilities 
at  the  time  of  the  judgment,  and  was  the  plaintiff  in  the  action. 
There  is  no  averment  in  the  petition  that  the  judgment  was  obtained 
by  fraud,  and  the  only  ground  mentioned  in  the  petition  upon  which 
relief  could  in  any  state  of  case  be  afforded,  is  that  of  newly  dis- 
covered evidence.  Sees.  581  and  573  of  the  Civil  Code  of  Practice. 
It  is,  therefore,  necessary  to  inquire  into  the  alleged  errors  of  the 
court,  and  the  trial  of  the  original  action.  These  errors  can  be  cor- 
rected, if  at  all,  in  no  other  way  than  by  an  appeal.  The  only  evidence 
claimed  to  have  been  discovered  is  the  receipt  for  one  hundred  dollars. 
The  appellant  says  that  after  judgment,  and  after  the  expiration  of 
the  term  at  which  it  was  rendered,  he  for  the  first  time,  "upon  a  care- 
ful examination  of  the  paper  of  B.  Small,  decedent,"  found  this  re- 
ceipt. Why  he  did  not  make  a  careful  examination  of  these  papers, 
before  judgment,  is  a  fact  not  disclosed.  It  was  certainly  his  duty 
to  do  so.  He  cannot  now  have  a  new  trial  on  account  of  his  lack  of 
diligence  in  this  respect. 

Judgment  afiirtned. 

J.  L.  A,  King,  for  appellant,    P.  D,  Yeiser,  for  appellee. 


P.  P.  and  J.  O.  Martin  v.  Commonwealth. 

Criminal  Law — Horse  Stealing. 

A  defendant  cannot  be  guilty  of  horse  stealing  if  in  fact  the  horse 
was  owned  by  him. 


appeal,  from  BALLARD  CIRCUIT  COURT. 
J  October  27,  1875. 

Opinion  by  Judge  Lindsay  : 

P.  P.  Martin  and  John  O.  Martin  were  indicted  by  the  grand 
jury  of  Ballard  county  for  stealing  a  horse,  the  property  of  William 
H.  Davis. 

The  proof  shows  that  the  only  interest  Davis  ever  owned  in  the 


854  Kentucky  Opinions. 

horse  was  a  special  property,  growing  out  of  the  fact  that  as  sher- 
iff of  the  county  he  had,  by  virtue  of  an  execution  in  his  hands  in 
favor  of  Northington  and  against  P.  P.  Martin,  levied  upon  it.  He 
delivered  the  horse  to  Northington  as  his  bailee,  and  authorized  the 
creditor  and  debtor  to  arrange  the  debt  evidenced  by  the  execution ; 
and  upon  its  being  arranged,  Northington  was  authorized  to  restore 
tlie  horse  to  Martin.  Martin  made  payments  on  the  debt  to  North- 
ington, and  sent  him  work  that  the  value  of  certain  pork  he  pro- 
posed to  deliver  upon  his  order,  would,  in  his  opinion,  about  satisfy 
it.  A  subsequent  conversation  between  the  parties  tended  to  show 
that  in  this  he  was  mistaken,  but  he  declined  to  pay  the  balance 
claimed,  and  thereby  obtain  possession  of  his  property,  saying,  in 
effect,  that  he  had  not  taken  the  horse  to  Northington,  and  would 
not  take  him  away. 

On  the  night  succeeding  this  interview  it  is  alleged  that  the  horse 
was  stolen  from  Northington's  possession.  There  is  testimony  con- 
ducing to  prove  that  the  horse  escaped  and  returned  to  the  home  of 
Martin.  He  sent  the  horse  to  Marshall  county,  by  his  son,  the  ap- 
pellant, John  O.  Martin,  as  they  claim,  to  prevent  its  being  subjected 
to  the  payment  of  certain  debts  for  which  P.  P.  Martin  was  bound 
as  surety  for  the  late  sheriff  of  Ballard  county.  We  see  no  objec- 
tion to  the  action  of  the  circuit  judge  in  admitting  and  excluding 
testimony. 

The  first  instruction  given  for  the  commonwealth  is  substantially 
correct,  as  is  also  instruction  No.  2.  Instruction  marked  No.  3  is 
objectionable.  It  assumes  that  Davis,  at  the  time  of  the  alleged 
larceny,  had  an  interest  in  and  claim  to  the  property,  resulting 
from  the  levy  of  the  execution,  and  the  possession  thereby  acquired. 
This  is  one  of  the  most  material  questions  of  fact  in  controversy, 
and  it  ought  not  to  be  determined  by  the  court.  If  Martin  had  paid 
off  the  debt  after  the  levy,  then  the  sheriff  had  no  interest  in  or 
claim  to  the  horse.  The  title  to  the  property  remained  in  P.  P. 
Martin,  notwithstanding  the  levy,  and  he  was  entitled,  upon  pay- 
ment of  the  debt,  to  have  it  returned  to  him.  After  such  payment, 
he  might  commit  a  trespass,  but  could  not  commit  a  larceny,  by  un- 
lawfully regaining  the  possession  to  which  he  was  entitled,  unless 
he  intended  by  so  doing  to  attempt  fraudulently  to  charge  Davis 
with  the  value  of  the  horse.  The  instruction  does  not  make  the 
guilt  of  the  accused  depend  upon  the  latter  proposition,  and  errone- 
ously admit,  as  proved,  a  question  which  as  we  have  already  said 
the  jury  should  have  been  allowed  to  determine. 


p.  p.  AND  J.  O.  Martin  v.  Commonwealth.  855 

By  instruction  No.  4,  the  jury  were,  in  effect,  told  that  because 
Martin  had  no  right  to  the  possession  of  the  horse  until  the  whole 
amount  of  the  execution  was  paid,  therefore  the  taking  and  carry- 
ing away,  if  any  part  thereof  remained  unpaid,  was  in  law  felonious. 
It  is  true  that  the  instruction  does  not  set  out  this  proposition  in 
terms ;  but  it  is  purely  abstract  in  its  nature,  and  when  considered 
in  connection  with  the  questions  of  fact  involved  in  this  prosecu- 
tion, it  naturally,  if  not  necessarily,  leads  to  the  conclusion  stated. 

Instruction  No.  5,  like  instruction  No.  3,  erroneously  assumes  it 
to  be  a  fact  that  at  the  time  of  the  alleged  taking  and  carrying  away 
of  the  horse,  Davis,  the  sheriflf,  had  a  claim  to  him.  It  also  deter- 
mines the  law  to  be  that  the  taking  under  the  circumstances  therein 
recited  was  felonious,  unless  the  jury  should  believe  from  the  evi- 
dence that  the  defendants,  in  good  faith,  believed  that  Northington 
had  turned  the  horse  out,  to  return  home,  or  consented  to  his  being 
turned  out.  Now  although  they  may  not  have  believed  either  of 
these  things,  yet  if  they  believed  that  the  debt  had  been  paid  in  full, 
the  taking  possession  and  carrying  away  of  the  horse  was  not  fe- 
lonious. This  instruction  is  objectionable  in  another  respect.  It  is 
dangerous  for  the  court  to  select  out  and  g^oup  together  certain  of 
the  prominent  circumstances  in  a  case,  and  make  the  guilt  or  inno- 
cence of  the  accused  turn  upon  the  sufficiency  or  insufficiency  of 
the  evidence  touching  these  supposed  facts.  The  better  mode  would 
have  been  to  state  to  the  jury  what  constitutes  in  law  a  felonious 
taking  and  carrying  away  in  cases  of  larceny,  then  permitted  the 
jury  to  apply  the  law  to  the  particular  facts  of  the  case  under  con- 
sideration. 

Instruction  No.  7  also  erroneously  assumes  that  Davis  owned  an 
interest  in  the  property,  when  it  is  alleged  to  have  been  taken.  The 
instructions  given  for  the  accused  were  sufficiently  favorable  to 
their  defense ;  but  the  instructions  given  for  the  commonwealth  are, 
in  the  main,  inconsistent  with  them.  As  the  jury  could  not  be  ex- 
pected to  reconcile  these  inconsistencies,  it  is  evident  that  the  ac- 
cused must  have  been  prejudiced  by  the  erroneous  exposition  of 
the  law  given  by  the  court  at  the  instance  of  the  commonwealth. 

A  new  trial  should  have  been  granted,  and  for  the  error  of  the 
circuit  court  in  overruling  appellants'  motion  therefor,  the  judg- 
ment is  reversed  and  the  cause  remanded  for  further  proceeding, 
not  inconsistent  with  this  opinion. 

/.  M,  Bigger,  J.  &  /.  W,  Rodman,  for  appellants, 
T.  E,  Moss,  for  appellee. 


856  Kentucky  Opinions. 

Louisville  City  Railway  Company  v,  Ellen  D.  Saltmarsh. 

Appeals — Amendment  of  Record. 

Where  the  record  on  appeal  fails  to  show  that  any  exception  was 
taken  to  the  giving  of  an  instruction,  it  may  be  amended  when  there 
is  something  to  amend  by,  but  it  cannot  be  amended  where  the  defect 
can  only  be  supplied  from  the  mere  recollection  of  the  judge  or  the  at- 
torneyB. 

APPEAL,  FROM  JEFFERSON  COURT  OF  COMMON  PLEAS. 

October  27,  1875. 

Opinion  by  Judge  Pryor  : 

No  exceptions  were  taken  to  the  instructions  given  by  the  court 
below,  nor  is  there  any  bill  of  evidence  to  be  found  in  the  record. 
An  amended  record  was  offered  to  be  filed,  showing  that  after  the 
case  was  brought  to  this  court  a  motion  was  made  in  the  court  be- 
low to  so  correct  the  record  as  to  show  that  exceptions  were  taken 
to  the  instructions  at  the  time  they  were  given.  A  record  in  such  a 
case  may  be  amended  when  there  is  something  to  amend  by,  as  when 
a  paper  has  been  ordered  to  be  copied  that  constitutes  a  part  of  the 
record,  or  when  there  is  some  defect  in  an  order  that  may  be  cor- 
rected by  reference  to  some  other  order  in  the  case,  but  where  the 
defect  is  to  be  supplied  from  the  mere  recollection  of  the  judge  or 
the  attorneys,  we  are  satisfied  no  such  correction  can  be  made,  un- 
less by  consent  after  the  record  is  filed  in  this  court. 

Besides,  the  bill  of  evidence  is  not  signed  by  the  judge,  or  so  iden- 
tified as  to  enable  this  court  to  say  that  it  formed  any  part  of  the 
record. 

The  judgment  is  therefore  affirmed, 

Mundy  &  Lawson,  for  appellant.    Jeff,  Brown,  for  appellee. 


Berry  zk  Commonwealth. 


Criminal  Law — Homicide — Evidence — Confession. 

Evidence  of  a  witness  is  admissible  when  it  shows  so  much  of  a  con- 
versation of  the  defendant  in  a  murder  trial  as  can  be  remembered  by 
the  witness,  amounting  to  confession  of  guilt;  and  the  fact  that  the 
witness  cannot  remember  all  that  was  said  does  not  render  inadmissi- 
ble what  he  does  remember  of  the  conversation. 


Berry  v.  Commonwealth.  857 

APPEAL  FROM  KNOX  CIRCUIT  COURT. 

October  27,  1875. 

Opinion  by  Judge  Peters  : 

Appellant  and  Joseph  Sampson,  between  whom  angry  words  had 
passed,  by  mutual  consent,  engaged  in  a  personal  conflict,  in  which 
Sampson  was  stabbed  and  killed;  appellant . was  indicted  for  the 
homicide,  found  guilty  by  the  jur}^  who  tried  him;  and  the  court 
below,  after  having  overruled  his  motion  for  a  new  trial,  rendered 
judgment  of  death  against  him,  and  he  has  appealed  to  this  court 
for  a  reversal  of  that  judgment.  On  the  trial,  Thomas  Wilson  was 
introduced  as  a  witness  by  the  attorney  for  the  commonwealth,  to 
prove  statements  made  by  appellant  in  a  conversation  with  one 
Henry  Martin,  in  relation  to  the  homicide,  in  the  hearing  of  Wilson, 
while  he  was  guarding  appellant  prior  to  his  examination  by  the 
court  of  inquiry. 

On  being  interrogated  by  the  attorney  for  appellant,  the  witness 
states  that  he  could  not  remember  all  the  conversation  that  took 
place,  that  a  great  many  things  were  said  in  the  conversation  that 
he  did  not  remember.  He  was  then  asked  by  the  attorney  for  the 
commonwealth  to  state  what  he  did  remember  that  Berry  said.  The 
attorney  for  appellant  objected,  and  insisted  that  the  witness  should 
not  answer  the  question;  but  the  court  overruled  tfie  objection,  and 
permitted  the  witness  to  state  what  was  said  at  the  time  referred 
toon  the  subject  by  appellant,  or  so  much  thereof  as  he  could 
remember.  To  that  ruling  of  the  court  appellant  at  the  time  ex- 
cepted, and  whether  or  not  the  court  erred  in  admitting  that  evi- 
dence is  the  first  question  to  be  decided. 

It  may  be  that  the  greater  part  of  the  conversation,  which  was 
forgotten  by  the  witness,  was  what  Martin  said ;  on  that  point,  how- 
ever, he  was  not  examined,  and  no  prominence  will  be  g^ven  to 
that  position.  Owing  to  the  frailty  of  human  memory,  there  are 
few  witnesses  indeed,  who,  when  called  upon  to  narrate  conversa- 
tions had  with,  or  confessions  made  by  persons  in  their  presence, 
can  recollect  all  that  was  said,  or  can  tell  the  substance  of  all  that 
they  heard,  and  fewer  still  who  can  give  the  words  in  which  a  com- 
munication is  made  either  to  them,  or  which  they  may  hdve  heard. 
Recognizing  the  infirmity  of  memory,  and  too  often  the  want  of 
fidelity  on  the  part  of  witnesses,  the  law  had  declared  that  verbal 
evidence  of  admissions,  or  confessions  of  parties  made  in  the  pres- 


8s8  Kentucky  Opinions. 

ence  of  the  witness  alone  who  is  called  to  prove  them,  is  the  most 
suspicious  of  all  testimony,  and  to  be  received  with  g^eat  caution, 
and  if  extorted  by  threats  or  violence,  or  procured  by  promises  of 
favor,  or  the  creation  of  delusive  hopes,  the  evidence  will  be  re- 
jected, thus  protecting  as  far  as  practicable  the  accused  from  fraud 
and  injustice,  and  from  every  injury  that  might  result  from  their 
own  indiscretion,  or  from  the  calamity  of  their  situation. 

2  Russell  on  Crimes  644.  In  this  case  the  statements  made  by 
appellant,  which  Wilson  was  called  on  to  prove,  were  made  fully 
and  voluntarily ;  they  were  made  without  request  from  any  one,  and 
not  addressed  to  Wilson,  but  to  Martin,  in  the  presence  of  Wilson 
and  several  other  persons.  Martin  was  examined  as  a  witness,  and 
if  Wilson  had  forgotten  any  material  part  of  what  appellant  had 
said,  and  omitted  any  important  portion  of  the  conversation,  or  had 
not  related  with  fidelity  the  statements  made,  the  opportunity  was 
presented  by  an  examination  of  Martin  to  correct  any  mistakes  or 
errors  Wilson  may  have  committed.  And  he  could  have  examined 
the  other  persons  who  were  present  on  the  occasion.  If  the  rule  is 
to  be  established,  that  when  a  witness  is  called  to  prove  admissions 
or  confessions  of  a  party,  that  unless  he  remembers  and  can  prove 
all  the  party  said  at  the  time,  whether  that  which  he  may  not  re- 
member be  material  or  not,  his  evidence  is  to  be  excluded.  The 
effect  of  such  a  rule  would  be  to  exclude  entirely  proof  of  admis- 
sions and  confessions,  and  abrogate  a  rule  of  evidence  too  long  and 
well  established  to  be  disregarded.  The  court  below,  therefore,  did 
not  err  in  admitting  the  evidence. 

After  a  careful  examination  of  each  and  all  of  the  instructions 
given  to  the  jury  at  the  instance  of  appellee,  we  have  been  unable 
to  discover  any  available  objection  to  them  or  either  of  them,  or  to 
perceive  any  error  prejudicial  to  appellant.  And  of  those  asked  by 
him,  all  were  given  except  one  which  is  marked  "No.  3"  in  the 
transcript.  In  that,  certain  facts  are  selected  from  others,  and  es- 
pecial prominence  given  to  them,  a  practice  which  this  court  has 
repeatedly  had  occasion  to  condemn ;  and  besides,  these  facts  are  as- 
sumed in  the  instruction  to  have  been  proved,  thereby  withdraw- 
ing from  the  jury  the  consideration  of  the  evidence  on  that  point, 
and  asking  for  the  court  to  decide  the  facts  which  it  was  the  prov- 
ince of  the  jury  to  determine.  The  instruction  for  these  reasons,  if 
for  no  other,  should  have  been  refused. 

Whether  or  not  the  court  below  erred  in  refusing  to  admit  the 
offered  statements  of  Doan  as*  evidence  is  the  next  question  to  be 


C.  D.  Bruce  v.  J.  D.  Carlisle,  et  al.  859 

disposed  of.  It  appears  from  the  bill  of  exceptions,  that  appellant 
proposed  to  introduce  G.  A.  Doan  as  a  witness  to  prove  statements 
he  heard  appellant  make  while  he  was  guarding  him,  as  to  how  the 
difficulty  arose  between  Sampton  and  himself,  which  resulted  in 
the  death  of  Sampton.  The  court  refused  to  permit  the  witness  to 
testify,  and  that  ruling  of  the  court  is  complained  of  as  erroneous. 
Neither  appellant  nor  his  counsel  stated  what  the  declarations  were, 
which  the  witness  would  prove,  or  what  they  believed  he  would 
prove,  or  if  they  did,  the  bill  of  exceptions  fails  to  disclose  that  they 
made  such  statement ;  and  we  cannot  decide  that  the  witness  would 
have  proved  anything  material  for  the  defense,  or  that  appellant 
was  prejudiced  by  the  refusal  of  the  court  to  allow  him  to  testify. 
Tipper  v.  Commonwealth,  i  Met.  6. 

The  bill  of  exceptions  shows  that  Doan  was  not  present,  and  did 
not  hear  the  conversation  or  confessions  as  proved  by  Wilson  and 
Martin.  He  could  not,  therefore,  have  been  offered  to  contradict 
them,  or  to  prove  other  statements  made  at  that  time  which  were 
explanatory  of  their  evidence  and  beneficial  to  appellant;  and  any 
statements  made  by  him  at  a  different  time,  unless  they  were  con- 
temporaneous with  the  transaction,  and  so  connected  with  it  as  to 
form  a  part  of  the  res  gestae  would  not  be  competent.  So  that,  in 
any  aspect  in  which  the  question  can  be  presented,  the  ruling  of  the 
court  was  proper. 

The  refusal  of  the  court  below  to  award  a  new  trial  on  the  ground 
that  one  of  the  jurors  had  formed  and  expressed  his  opinion  of  the 
guilt  of  appellant  before  he  was  impanneled,  if  that  be  an  error,  is 
not  one  of  the  four  errors  enumerated  in  Sec.  334  of  the  Crim.  Code, 
for  which  this  court  can  reverse  a  judgment  of  conviction.  Of  that 
question,  therefore,  we  have  no  jurisdiction.  After  a  careful  con- 
sideration of  the  various  questions  presented  by  this  appeal,  we  can 
discover  no  error  which  is  available  for  a  reversal  by  this  court. 

Wherefore  the  judgment  must  be  affirmed. 

Ford,  for  appellant.     Attorney-General,  for  appellee. 


C.  D.  Bruce  v.  J.  D.  Carlisle,  et  al. 

Attachment— Levy  and  Sale — Ownership  of  Property  Sold. 

A  plaintiff  who  causes  an  attachment  to  issue  and  causes  property 
to  be  sold  not  belonging  to  the  defendant,  which  property  the  pur- 
chaser is  required  to  surrender,  is  liable  to  such  purchaser  for  the 
money  paid  for  such  property. 


86o  Kentucky  Opinions. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

November  3,  1875. 

Opinion  by  Judge  Cofer: 

The  appellant  sued  Muir,  and  caused  an  attachment  to  be  issued 
against  his  property,  which  was  placed  in  the  hands  of  the  sheriflF 
and  levied  upon  a  stallion  as  the  property  of  Muir.  Judgment  was 
rendered  against  Muir,  and  the  attachment  was  sustained,  and  the 
horse  was  ordered  to  be  sold  to  satisfy  the  judgment;  a  sale  was 
accordingly  made,  and  the  appellees  became  the  purchasers  of  the 
horse,  and  paid  to  the  appellant  so  much  of  the  purchase  price  as 
was  necessary  to  satisfy  his  judgment  against  Muir. 

After  the  confirmation  of  the  sale  and  the  payment  of  the  money 
to  appellant,  one  Glass  asserted  claim  to  the  horse,  and  the  appel- 
lees surrendered  him,  and  brought  this  suit  to  recover  the  money 
paid  to  the  appellant ;  and  judgment  having  been  rendered  in  their 
favor,  he  has  appealed. 

The  court  instructed  the  jury,  in  substance,  that  if  the  horse  was 
the  property  of  Glass  they  should  find  for  the  plaintiffs,  and  whether 
that  instruction  was  correct  is  the  important  question  in  this  case. 

Counsel  for  the  appellant  cites  M'Ghee  v.  Ellis  &  Browning,  4. 
Litt.  245,  decided  by  this  court,  and  similar  decisions  by  the  courts 
of  other  states,  in  support  of  the  position  taken  by  him  that  the 
remedy  of  the  appellees,  if  they  have  any,  is  against  Muir  or  the 
sheriff.  In  M'Ghee  v.  Ellis  &  Browning,  the  sheriff,  without  the 
interference  or  knowledge  of  the  plaintiff  in  the  execution,  levied 
upon  and  sold  a  slave  belonging  to  one  not  a  defendant  in  the  writ, 
and  took  a  sale  bond,  and  returned  the  execution  satisfied.  The  owner 
of  the  slave  sued  the  purchaser  and  recovered  the  slave,  and  there- 
upon the  purchaser  filed  his  bill  in  equity  to  have  his  bond  canceled. 
But  the  court  held  that  the  plaintiff  in  the  execution  having  had  no 
agency  in  the  seizure  and  sale  of  the  slave,  and  the  return  on  the 
fi.  fa.  having  barred  his  judgment  and  discharged  his  debtor,  the 
purchaser  must  look  to  the  defendant  in  the  execution,  whose  debt 
he  had  paid,  or  to  the  sheriflF,  for  indemnity. 

But  the  doctrine  of  that  case  has  no  application  to  the  facts  of 
this  case.  It  is  true  it  does  not  appear  that  the  appellant,  had  any 
agency  in  levying  the  attachment;  but  he  did  have  all  agency  in 
causing  the  horse  to  be  sold.  The  attachment  was  levied  and  re- 
turned to  court,  and  then  there  was  an  order  for  a  sale  of  the  horse, 


William  Murphy  v,  John  R.  Ashby.  86i 

and  this  must  have  been  made  at  the  appellant's  instance;  and  he 
does  not,  therefore,  stand  in  the  favorable  position  in  which  McGhee 
stood  in  the  case  supra. 

It  was  held  in  Sanders  v,  Hamilton,  3  Dana  550,  that  where  the 
plaintiflF  in  an  execution  is  instrumental  in  causing-  it  to  be  levied  on 
goods  which  belong,  not  to  the  execution  defendant,  but  to  a  third 
person,  who  asserts  a  better  title  and  recovers  his  property  from  the 
purchaser,  the  latter  may  maintain  his  action  against  the  plaintiff 
for  indemnity,  and  the  same  principle  was  recognized  in  Tucker, 
et  al.,  V.  Fogle,  7  Bush  290. 

Conceding  that  the  appellant  would  not  have  been  liable  if  the 
horse  had  been  seized  and  sold  under  a  fi.  fa.  without  any  participa- 
tion on  his  part,  it  seems  to  us  that  he  cannot  be  held  not  to  have 
participated  in  the  sale  at  which  the  appellees  purchased.  There 
would  have  been  no  sale  without  an  order  of  the  court  or  of  a  judge 
directing  it  to  be  made,  and  as  the  appellant  must  be  taken  to  have 
procured  such  an  order,  it  seems  to  us  that  the  case  falls  within  the 
rule  in  the  cases  last  cited,  and  that  the  court  did  not  err  in  instruct- 
ing the  jury. 

The  contract  between  the  appellees  and  Glass  was,  we  think,  im- 
properly admitted,  and  there  may  have  been  other  illegal  evidence 
which  was  allowed  to  go  to  the  jury ;  but  as  there  was  nothing  to 
contradict  the  testimony  of  Glass  as  to  the  ownership  of  the  horse,  ex- 
cept the  possession  of  Muir,  which  was  satisfactorily  explained,  the 
appellant  was  not  prejudiced  by  the  illegal  evidence. 

That  the  appellant's  judgment  against  Muir  appears  on  the  rec- 
ord to  have  been  satisfied,  cannot  furnish  a  sufficient  reason  for  de- 
nying to  the  appellees  the  relief  to  which  they  are  otherwise  legally 
and  equitably  entitled.  He  may,  probably,  by  appropriate  proceed- 
ings, have  that  obstacle  to  the  enforcement  of  his  demand  removed. 

We  perceive  no. error  to  appellant's  prejudice,  and  the  judgment 
is  affirmed, 

Z,  Gibbons,  for  appellant,     W,  B,  &  G.  B.  Kinliead,  for  appellees. 


William  Murphy  v.  John  R.  Ashby. 

Conveyance  of  Land — Bond  for  Deed. 

Where  a  bond  for  a  deed  shows  a  sale  of  land  in  gross  and  not  by 
the  acre,  the  vendor  cannot  In  disregard  of  the  written  contract  be 
allowed  to  show  that  it  was  verbally  agreed  that  the  purchaser  should 
pay  for  the  land  at  so  much  per  acre.  He  is  bound  by  his  written 
contract 


862  Kentucky  Opinions. 

APPEAIi  FROM  DAVIESS  CIRCUIT  COURT. 

November  4,  1876. 

Opinion  by  Judge  Pryor  : 

The  bond  executed  by  the  appellee  for  title,  as  both  parties  admit, 
shows  a  sale  in  gross,  and  not  by  the  acre.  The  appellant  agreed 
to  pay  $2,ooo  for  the  land  containing  ii6  acres,  more  or  less.  The 
deed  is  for  a  certain  boundary  of  land,  containing  ii6  acres,  for  two 
thousand  dollars.  The  appellee  now  says  that  it  was  verbally  agreed 
at  the  time  of  the  execution  of  the  deed  that  this  sale  in  gross  should 
be  disregarded,  and  the  writings  evidencing  the  sale  held  for  naught 
so  far  as  they  affected  that  part  of  the  contract.  If  written  con- 
tracts can  be  assailed  in. this  way,  but  little  importance  is  to  be  at- 
tached to  this  mode  of  evidencing  the  obligations  of  parties. 

There  is  no  mistake  alleged,  or  if  so,  it  is  not  pretended  that  any 
was  really  made,  but  the  appellee  is  relying  solely  upon  the  fact  of 
the  verbal  agreement  made  when  the  deed  was  signed.  The  party 
purchasing  had  been  in  possession  for  several  years,  with  a  bond 
and  deed,  showing  how  he  entered  upon  the  land,  and  the  terms  of 
his  contract;  and  yet  it  is  insisted  that  a  verbal  contract  made  at 
the  same  time  is  to  determine  the  rights  of  the  parties.  If  there  had 
been  a  deficit  in  the  tract  of  the  nine  acres,  the  appellant  would  have 
been  without  remedy.  The  production  of  his  bond  for  title  and  the 
deed  would  have  determined  his  rights,  as  it  must  those  of  the 
appellee.  If  this  verbal  agreement  was  a  part  of  the  contract,  it 
should  have  been  reduced  to  writing,  and  neither  party  is  entitled 
to  relief  by  reason  of  any  excess  or  deficit  in  the  number  of  acres 
in  a  case  like  this,  unless  such  deficit  or  excess  is  sufficient  to  con- 
vince the  chancellor  that  the  parties,  with  a  knowledge  of  that  fact, 
would  not  have  made  such  a  contract.  The  judgment  is  reversed 
and  cause  remanded  with  directions  to  dismiss  the  petition,  and  also 
the  cross-action. 

W,  N,  Sweeney,  for  appellant.     G,  W,  Williams,  for  appellee. 


B.  F.  VanMeter  v.  R.  P.  Pepper. 


Guarantor — Notice  of  Acceptance — Pleading. 

Where  the  petition  falls  to  aver  notice  of  acceptance  of  a  guaranty, 
evidence  cannot  supply  the  place  of  such  averment 


B.  F.  VanMeter  v.  R.  P.  Pepper.  863 

APPEAL  FROM  FRANKLIN  CIRCUIT  COURT. 

November  9,  1875. 

Opinion  by  Judge  Lindsay  : 

We  do  not  share  with  counsel  for  the  appellant  in  the  apprehen- 
sion that  injustice  is  likely  to  result  from  the  practice  of  giving  a 
peremptory  instruction  after  evidence  has  been  heard  on  both  sides. 
If,  upon  looking  into  the  pleadings,  the  court  is  of  the  opinion  that 
the  petition  does  not  state  facts  constituting  a  cause  of  action,  we 
see  no  reason  why  the  jury  should  not  be  instructed  to  find  for  the 
defendant ;  but  on  the  contrary  there  seems  to  be  some  weighty  rea- 
sons why  it  should  do  so.  If  there  is  no  cause  of  action  in  the  peti- 
tion, one  sufficient  reason  for  giving  a  peremptory  instruction  is  that 
it  saves  the  time  of  the  court,  which  would  otherwise  be  lost  in  the 
further  consideration  of  the  case. 

Nor  does  the  plaintiff  lose  any  right  of  amendment  by  such  a 
course ;  but  on  the  contrary  he  has  an  opportunity  to  amend,  which 
he  would  not  have  if,  instead  of  a  peremptory  instruction,  the  court 
should  allow  the  case  to  go  to  the  jury,  and  then,  in  case  a  verdict 
should  be  found  for  the  plaintiff,  set  it  aside  and  render  a  judgment 
for  the  defendant.  When  the  court  is  about  to  instruct  to  find  for 
the  defendant,  it  has  power  to  allow  the  petition  to  be  amended; 
but  upon  a  motion  for  judgment,  notwithstanding  the  verdict,  no 
amendment  can  be  allowed  in  order  to  support  the  verdict.  A  party 
who  is  not  entitled  to  a  verdict  when  it  is  rendered  cannot  sustain 
it  by  a  subsequent  amendment. 

We  still  incline  to  the  opinion  that  the  petition  was  defective  in 
failing  to  allege  notice  to  the  appellee  of  the  acceptance  of  his  guar- 
anty. It  appears  in  evidence  that  the  guaranty  was  given  in  consid- 
eration that  appellant  would  so  change  his  note  to  Duckworth  as  to 
make  it  negotiable,  and  that  he  did  so  change  it,  and  that  the  note 
afterwards  came  to  the  appellant's  hands.  That  these  facts  show 
notice  of  the  acceptance  is  not  doubted,  but  it  is  not  perceived  how 
the  evidence  of  a  material  fact  can  supply  the  place  of  an  allegation 
of  that  fact  in  the  pleadings. 

If  the  foregoing  facts  appeared  in  the  petition  it  would  no  doubt 
be  sufficient  upon  this  point ;  but  as  they  are  not  alleged,  and  there  is 
no  express  allegation  of  notice  of  acceptance,  it  seems  to  us  the  pe- 
tition was  defective  on  this  point  also. 

In  Hockersmith  v,  Warren,  as  the  case  is  stated  by  counsel,  the 


864  Kentucky  Opinions. 

point  made  was  that  Warren  had  received  no  notice  that  an  arbitra- 
tion had  been  made  and  an  award  found.  There  does  not  seem  to 
have  been  any  question  whether  he  had  notice  of  the  acceptance  of 
his  guaranty.  If  it  was  not  made  to  appear  that  Warren  had  notice 
that  Hockersmith  had  accepted  the  guaranty  and  entered  into  an 
agreement  to  arbitrate  in  consideration  of  his  undertaking  to  pay  the 
award,  the  cases  would  be  parallel ;  and  if  it  had  been  held  in  that 
case  that  it  was  not  necessary  to  aver  notice  of  the  acceptance,  we 
should  regard  the  opinion  as  authority  in  this  case ;  but  the  failure 
to  allege  notice  that  an  award  had  been  made  is  a  very  different 
thing  from  a  failure  to  allege  notice  of  acceptance  of  the  guaranty. 

That  there  was  no  notice  of  a  failure  of  the  principal  to  perform 
the  agreement,  performance  of  which  is  guaranteed,  must  always 
come  from  the  defendant ;  and  he  must  show  not  only  that  he  had 
no  notice,  but  that  he  may  suffer  loss  in  consequence  of  the  want  of 
such  notice. 

As,  for  instance  in  this  case,  if  appellee  had  sought  to  avoid  liabil- 
ity on  the  ground  that  he  received  no  notice  of  Duckworth's  failure 
to  comply  with  his  contract,  he  would  have  been  required  to  aver 
that  he  had  received  no  notice  and  had  or  would  ^  sustain  some  loss 
by  the  failure  to  give  him  notice. 

Lindsey,  for  appellant,   G.  JV.  Craddosk,  for  appellee. 


Samuel  Murrell,  et  al.,  v,  Henry  Dugan's  Adm'r. 

Suit  Against  Administrators — ^Jurisdiction. 

Administrators  of  an  estate  can  only  be  sued  In  the  county  in  which 
they  qualified  and  the  county  where  their  decedent  resided  at  the  time 
of  his  death. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

November  10,  1875. 

Opinion  by  Judge  Lindsay  : 

Henry  W.  Scott  is  the  public  administrator  for  Daviess  county. 
The  estate  of  Henry  Dugan,  deceased,  was  ordered  in  his  hands  to 
be  administered.  He  instituted  this  action  for  the  purpose  of  hav- 
ing said  estate  settled,  its  assets  marshalled,  and  the  conflicting 
rights  of  the  various  creditors  adjudicated. 

He  alleges  that  Dugan  died  leaving  a  last  will  and  testament,  in 


Samuel  Murrell,  et  al.,  v,  Henry  Dugan's  Adm'r.      865 

which  he  nominated  and  appointed  one  G.  M.  Murrell  his  executor ; 
that  said  Murrell  caused  said  last  will  and  testament  to  be  probated 
in  the  county  court  of  Warren  county ;  that  he  qualified  as  executor 
thereof  in  said  county,  and  executed  bond  with  Samuel  Murrell  and 
A.  I.  Woodland  as  his  sureties.  He  charges  further  that  whilst  act- 
ing as  executor  under  said  appointment  and  qualification,  Murrell 
took  into  his  possession  a  very  large  amount  of  the  assets  of  thb 
estate  of  the  decedent.  He  also  alleges  that  Dugan  died  domiciled 
in  Daviess  county,  and  that  the  Warren  County  Court  had  no  juris- 
diction to  probate  his  will,  or  to  qualify  his  executor,  and  he  insists 
that  its  action  in  the  premises  was  and  is  void  and  of  no  effect,  and 
that  Murrell,  by  acting  under  it,  became  executor  of  his  own  wrong. 

At  the  time  this  action  was  commenced  Murrell  was  dead,  and 
these  appellants,  Samuel  Murrell  and  A.  J.  Woodland,  were  the 
administrators  of  his  estate.  They  were  made  defendants,  and 
judgement  was  asked  against  them  for  the  value  of  the  assets  taken 
into  possession  by  their  intestate,  under  and  by  virtue  of  the  claim 
asserted  by  him  as  executor  of  Dugan.  They  were  served  with 
process  in  Warren  county.  Upon  their  appearance  to  the  action 
which  had  been  instituted,  and  was  then  pending  in  the  Daviess 
Circuit  Court,  the  demurred  specially  to  the  jurisdiction  of  the  tri- 
bunal in  which  they  were  sued.  Their  demurrer  was  overruled,  and 
they  then  pleaded  to  its  jurisdiction.  Upon  final  hearing  their  plea 
in  this  regard  was  held  to  be  unavailing.  Their  said  plea  should 
have  been  sustained.  If  their  intestate  had  been  living  he  could  not 
have  been  sued  except  in  the  county  of  his  residence  or  in  some 
county  in  which  he  might  have  been  summoned. 

Leaving  out  of  view  the  right  of  these  parties  as  personal  repre- 
sentatives to  demand  that,  as  to  all  matters  touching  the  estate  of 
their  intestate,  they  shall  be  sued  in  the  county  in  which  they  quali- 
fied, they  certainly  occupy  as  favorable  an  attitude  as  that  occupied 
by  their  intestate.  As  the  proceeding  against  them  is  strictly  in 
personam,  the  question  of  jurisdiction  must  be  determined  by  the 
provisions  of  Sees.  106,  107  and  108  of  the  Civil  Code  of  Practice. 

A  personal  representative  cannot  escape  the  effect  of  these  provi- 
sions, as  to  parties  indebted  to  him  in  his  fiducial  capacity  by  insti- 
tuting an  action  to  settle  the  estate  of  the  decedent,  and  seeking 
therein  to  recover  against  them.  The  purpose  of  such  an  action  is 
not  to  enforce  the  collection  of  debts  due  to  the  estate,  but  to  mar- 
shall  the  assets,  and  pay  them  out  to  the  crediors,  distributees  and 
devisees. 

55 


866  Kentucky  Opinions. 

As  the  Daviess  Circuit  Court  had  no  jurisdiction  of  these  appel- 
lants, we  cannot  yield  to  the  desire  of  coui^sel,  and  undertake  to 
settle  the  question  as  to  whether  the  county  court  of  Warren  county, 
or  that  of  Daviess  county,  has  jurisdiction  to  probate  the  will  of  the 
decedent.  Any  opinion  we  might  express  on  the  subject  would  be 
extrajudicial,  and  would  not  be  binding  on  this  or  any  other  court. 
Nor  do  we  feel  inclined  to  go  out  of  our  way  to  settle  a  question 
which  the  parties  in  interest  have  heretofore  seemed  so  reluctant  to 
have  settled. 

An  appeal  from  the  judgment  of  the  Warren  County  Court  admit- 
ting the  will  to  probate,  would  have  determined  this  question  of 
jurisdiction.  An  appeal  from  the  order  of  the  Daviess  County 
Court  directing  the  public  administrator  to  administer  the  estate 
would  have  accomplished  the  same  end. 

So  the  question  might  have  been  finally  settled  in  the  case  of 
Murrell  v.  Wing,  in  the  Daviess  Circuit  Court,  or  in  the  action  in 
the  Henderson  Circuit  Court  of  Winfrey's  heirs.  All  these  oppor- 
tunities were  neglected,  and  it  seems  that  a  valuable  estate  has  been 
wasted  in  consequence  of  the  neglect  or  perverseness  of  those  most 
interested  in  its  preservation. 

The  judgment  is  reversed  and  the  cause  remanded  with  instruc- 
tions to  sustain  appellants'  plea  to  the  jurisdiction  of  the  court,  and 
to  dismiss  so  much  of  the  petition  as  seeks  relief  against  them. 

Williams  &  Brown,  for  appellants. 
Ray  &  Walker,  for  appellee. 


Mississippi  Valley  Life  Insurance  Co.  v,  R.  H.  Morton. 

Life  Insurance  Policy — Representations  to  Procure. 

While  an  insurance  company  is  not  bound  to  pay  on  a  policy  that 
was  procured  by  false  representations  made  by  the  insured,  it  is  bound 
when  the  evidence  discloses  that  such  representations  were  substan- 
tially correct  and  true. 

Evidence. 

Close  neighbors  and  friends  who  have  an  opportunity  to  obsenre  a 
person  almost  daily  are  in  a  better  position  to  state  the  condition  of 

one's  health  than  those  seeing  the  person  infrequently. 

I 

APPEAL,  FROM  MARSHALL  CIRCUIT  COURT. 

November  14,  1875. 

■ 

Opinion  by  Judge  Pryor  : 

This  is  an  action  by  the  appellee,  Richard  H.  Morton,  upon  a  pol-  i 


Mississippi  Valley  Life  Ins.  Co.  v.  R.  H.  Morton.       867 

icy  of  insurance  issued  by  the  appellant,  the  Mississippi  Valley  Life 
Insurance  Company,  upon  the  life  of  appellee's  wife,  Harriet  A. 
Morton,  for  the  sum  of  twenty-five  hundred  dollars.  To  this  action 
upon  the  policy  by  the  husband,  for  whose  benefit  it  was  made,  it  is 
alleged,  by  way  of  defense,  that  her  lungs  were  diseased,  and  that 
she  had  an  habitual  cough,  as  well  as  other  diseases  prior  to  and  at 
the  date  of  the  application  for  insurance  and  issual  of  the  policy; 
that  the  statements  made  by  the  wife  in  the  application  and  when 
the  policy  was  delivered  "that  she  never  had  inflammation  of  the 
lungs,  habitual  cough,  or  spitting  of  blood,  were  not  only  untrue, 
but  false  and  fraudulent ;  that  the  statement  made  in  the  application 
that  Dr.  Brooks  was  her  attending  physician  was  also  false,  and  that 
the  insurance  was  affected  by  the  agent  of  the  company  and  the  hus- 
band of  the  insured,  with  a  knowledge  of  all  these  facts,  for  the  pur- 
pose of  defrauding  the  company. 

A  verdict  having  been  rendered  for  the  appellee,  it  is  now  insisted 
as  one  of  the  grounds  for  reversal  that  the  wife  of  appellee  was  dis- 
eased with  consumption  at  the  date  of  the  insurance,  and  concealed 
from  the  company  or  its  agent  such  facts  connected  with  the  condi- 
tion of  her  health  as  were  material  to  the  risks,  and  if  disclosed 
would  have  deterred  the  company  from  issuing  the  policy.  The 
proof  is  not  only  conclusive,  but  the  fact  is  conceded  that  Mrs.  Mor- 
ton, the  insured,  died  of  consumption.  The  statement  of  her  at- 
tending physician  traces  the  indirect  cause  of  her  death  to  a  cold 
taken  by  her  after  recovering  from  the  measles,  that  she  seems  to 
have  had  about  ten  years  prior  to  her  illness  and  death. 

The  preponderance  of  the  testimony  establishes  the  fact  that  Mrs. 
Morton,  until  a  short  time  prior  to  her  death,  was  in  the  enjoyment 
of  excellent  health  and  with  a  constitution  that  promised  as  long  a 
life  as  any  of  her  female  acquaintances  of  the  same  age.  Neither 
the  members  of  her  family,  or  those  who  were  her  constant  com- 
panions, anticipated  that  she  was  liable  to  such  a  disease  as  consump- 
tion, or  had  any  premonitory  symptoms  of  its  approach.  She  mar- 
ried in  1864,  and  between  that  date  and  the  time  of  her  death  in 
January,  1872,  gave  birth  to  three  children,  and  attended  to  her 
household  duties  without  any  serious  illness  or  evidences  of  failing 
health  until  a  few  months  prior  to  her  death.  The  colds  she  occa- 
sionally had  were  attended  with  slight  coughing,  but  yielded  readily 
to  such  mild  remedies  as  are  used  in  such  cases,  and  were  never  re- 
garded by  any  one  as  the  incipient  stages  of  a  more  formidable 
disease.    The  members  of  her  own  household  thus  did  not  know  that 


868  Kentucky  Opinions. 

she  had  consumption  until  her  attending  physician  pronounced  her 
case  hopeless.  Her  husband,  a  short  time  before  his  wife's  illness, 
had  been  quite  sick,  and  the  latter  had  nursed  him  almost  night  and 
day  for  the  period  of  fifteen  days,  and  from  that  time  she  seems  to 
have  manifested  much  physical  weakness  and  rapidly  declined  in 
health.  Whether  or  not  the  remote  cause  of  her  disease  was  properly 
attributed  to  the  measles  she  had  in  1862  is  involved  in  much 
doubt ;  and  the  testimony  of  medical  witnesses  based  upon  her  phy- 
sical condition  from  1862  until  her  death  rather  tends  to  show  that 
there  was  sudden  inflammation  of  the  lungs  from  some  exciting 
cause  of  a  later  date  than  January,  1862. 

It  may  have  been  that  she  was  predisposed  to  consumption  by 
reason  of  her  illness  with  measles  prior  to  her  marriage,  and  that 
the  exhaustion  in  waiting  upon  her  husband  only  developed  it  into 
a  fixed  and  permanent  disease,  or  that  she  had  no  predisposition  to 
any  such  disease,  but  died  from  a  sudden  attack  of  inflammation  of 
the  lungs.  Indulging  in  either  theory,  the  same  conclusion  must  be 
reached  as  to  the  rights  of  the  parties  in  this  controversy. 

It  is  true  that  there  are  three  witnesses  examined  by  appellant 
who  speak  of  her  emaciated  and  consumptive  condition  prior  to  and 
even  on  the  day  her  life  was  insured,  giving  her  own  declarations 
"that  she  would  live  but  a  short  time,  and  her  life  was  not  worth 
fifteen  cents,"  etc.  It  is  rather  singular  that  the  wife  of  appellee 
should  have  made  such  statements  to  those  who  were  only  her 
casual  acquaintances,  and  who  had  no  claims  upon  her  confidence, 
particularly  on  the  day  her  life  had  been  insured,  statements 
that,  if  true,  forfeited  the  policy.  She  had  intimate  friends 
in  the  same  town,  some  of  whom  lived  adjoining  her  own 
premises,  others  living  in  her  own  house;  and  no  such  commu- 
nication was  even  made  to  them,  nor  was  there  any  discovery  by 
these  intimate  friends,  from  her  conduct  or  otherwise,  that  she  was 
laboring  under  any  disease.  Some  ten  or  eleven  witnesses  who  had 
known  her  intimately  for  many  years  never  discovered  that  she  was 
deseased  until  after  her  husband's  illness.  The  policy  of  insurance 
was  issued  in  the  24th  of  July,  1871,  and  several  witnesses  state  that 
they  met  the  wife  of  appellee  at  picnics  and  barbecues  in  the  months 
of  May,  June  and  July,  1871,  some  of  those  gatherings  a  distance  of 
ten  miles  from  where  she  lived ;  that  she  was  then  a  lady  of  fine 
appearance,  with  a  ruddy  complexion,  elastic  step  and  seemingly  in 
the  enjoyment  of  fine  health.  These  statements,  in  connection  with 
those  made  by  her  numerous  acquaintances,  make  it  impossible  tliat 


Mississippi  Valley  Life  Ins.  Co.  v.  R.  H.  Morton.       869 

her  condition  should  have  been  such  as  described  by  the  three  wit- 
nesses of  appellant  on  or  about  the  time  the  insurance  policy  issued. 
It  is  also  shown  by  the  medical  examiner  for  the  company  that  he 
made  the  usual  test  in  order  to  ascertain  if  her  lungs  were  diseased, 
counting  the  respirations  and  pulsations.  She  had  a  large  full  and 
well-developed  chest,  when  unexpanded  measured  30^^  inches,  and 
expanded  measured  33  inches.  He  applied  other  tests,  and  expresses 
the  opinion  that  it  was  impossible  for  her  lungs  to  have  been  diseased 
at  that  time.  Dr.  Brooks  is  the  only  physician  who  seems  to  have 
detected  any  evidence  of  consumption  upon  her  prior  to  her  last  ill- 
ness, and  his  opinion  is  based,  not  upon  any  examination  made,  but 
from  her  general  appearance  and  cough,  noticed  by  him  whilst  he 
was  attending  her  husband  in  his  illness  that  occurred  some  time 
after  the  policy  issued. 

The  necessary  and  rational  conclusion  from  all  the  evidence  is  that 
neither  the  husband  nor  wife  made  any  representation  to,  or  with- 
held any  fact  from  the  agent  of  the  company  at  the  time  the  applica- 
tion was  made  and  the  policy  issued,  that  would  have  induced  the 
agent  to  have  acted  otherwise  than  to  issue  the  policy,  and  certainly 
nothing  known  by  them  or  either  of  them  that,  if  developed,  would 
have  caused  the  company  or  its  agent  to  have  declined  the  risk.  She 
had  not  contracted  the  disease  in  1862,  and  the  weight  of  the  evi- 
dence is  that  she  was  sound  and  healthy  at  the  date  of  the  policy; 
and  there  is  no  stronger  or  more  conclusive  proof  in  the  record  sus- 
taining this  view,  than  the  statement  of  the  medical  examiner  of  the 
company,  who  made  a  close  and  careful  examination  of  the  appli- 
cant before  the  policy  issued.  The  husband  was  not  present  when 
the  examination  was  made,  and  there  is  nothing  in  the  record  from 
which  it  may  be  inferred  that  any  combination  or  conspiracy  was 
entered  into  between  the  husband  and  the  agent  to  defraud  the  com- 
pany ;  but  on  the  contrary,  the  policies  were  issued  upon  the  impor- 
tunities of  the  agent,  and  not  at  the  solicitation  of  the  appellee ;  and 
whilst  the  character  of  this  agent  has  been  assailed  by  the  appellant, 
the  medical  examiner  stands,  so  far  as  this  record  shows,  unim- 
peached  in  his  character  for  professional  integrity  and  moral  worth. 

It  is  insisted,  however,  by  counsel  for  the  appellant,  that  the 
appellee  is  estopped  from  controverting  the  facts  contained  in  the 
affidavit  of  his  wife's  attending  physician  as  to  the  origin  of  the 
disease,  this  affidavit  having  been  presented  by  appellee  to  the  com- 
pany as  a  part  of  the  preliminary  proof  of  her  death.  The  state- 
ment is  "the  indirect  cause  was  taking  cold  after  recovering  from 


8/0  Kentucky  Opinions. 

measles."  The  case  of  Campbell  v.  Charter  Oak  Fire  &  Marine 
Insurance  Company,  lo  Allen  (Mass.)  213,  is  relied  on  as  establish- 
ing this  view  of  the  question.  Campbell  insured  his  hotel  with  the 
company,  and  by  the  terms  of  the  charter,  it  was  provided  that  no 
burning  fluid  should  be  used  about  the  building  without  the  con- 
sent of  the  company  indorsed  in  writing  on  the  policy.  The  hotel 
having  been  destroyed  by  fire,  the  insured  made  affidavit  of  the  loss, 
stating  therein  "that  the  house  was  usually  lighted  with  burning  fluid 
in  lamps."  The  statement  made,  instead  of  negativing  that  which  was 
made  requisite  in  his  preliminary  proof  of  loss  by  the  terms  of  tlie 
policy,  expressly  admits  its  existence,  and  by  his  own  affidavit  shows 
that  he  has  no  right  of  recovery.  The  court  below,  in  the  case 
noticed,  permitted  the  plaintiff  to  prove  that  the  affidavits  were  made 
upon  a  mistaken  state  of  facts;  and  upon  an  appeal,  it  was  held 
that  although  the  mistake  might  have  been  corrected,  the  plaintiff 
should  have  made  an  amendatory  statemetit  and  presented  it  to  the 
company  prior  to  the  institution  of  his  action.  He  had  already  done 
that  which,  if  true,  forfeited  his  right  to  the  insurance  money,  and 
fhere  was  no  necessity  for  the  company  to  make  any  other  defense 
than  appeared  in  plaintiff's  own  affidavit.  The  fact  admitted  by 
Campbell  was  not  only  material,  but  concluded  his  right  to  recover. 
Bliss  on  the  law  of  life  insurance.  Sec.  259,  lays  down  this  rule  based 
upon  the  opinion  in  the  case  of  Campbell  v.  Charter  Oak  Fire  & 
Marine  Insurance  Co. 

The  assured  is  bound  by  the  statements  contained  in  the  proof 
presented  by  him  unless  before  trial  he  notifies  the  company  of  some 
error  in  them.  The  meaning  of  this  rule  is  that  the  facts  material 
to  plaintiff's  right  of  recovery,  set  forth  on  the  preliminary  proof, 
cannot  be  contradicted  without  notice  of  some  mistake  as  to  the 
contents  of  the  affidavit  or  proof  first  given  the  company.  In  the 
present  case,  by  the  terms  of  the  policy,  it  was  not  necessary  to 
negative  the  fact  that  the  wife  died  of  consumption,  habitual  cough, 
or  spitting  of  blood.  The  policy  only  requires  proof  of  the  death, 
and  certain  negative  statements  that  were  made,  and  about  which 
there  is  no  controversy.  It  is  admitted  that  the  insured  died  from 
diseased  lungs,  and  that  she  had  measles  nine  or  ten  years  before 
the  death ;  but  it  is  denied  that  she  was  laboring  under  any  disease 
at  the  time  the  policy  was  issued,  or  that  the  spell  of  measles  affected 
her  general  health.  All  the  facts  stated  in  the  affidavit  are  admitted, 
in  effect,  on  the  trial  below,  except  that  the  deceased  had  cold  after 
measles,  or  that  the  origin  of  this  disease  of  which  she  died  was  from 


Mississippi  Valley  Life  Ins.  Co.  v,  R.  H.  Morton.       871 

this  cold.  It  was  never  admitted  or  proven  in  any  affidavit  that  the 
deceased  was  laboring  under  any  disease  prior  to  the  insurance, 
and  the  statement  made  by  the  attending  physician  in  his  affidavit 
as  to  his  opinion  of  the  remote  cause  of  her  death,  could  not  have 
misled  the  appellant,  nor  was  it  such  a  material  fact,  if  true,  as 
barred  the  appellee's  right  of  recovery,  or  necessarily  affected  the 
issues  involved. 

Th-e  only  question  presented  is,  Was  the  insured  diseased  at  the 
time  of  the  insurance?  There  was  not  even  an  apparent  ground 
of  defense  disclosed  in  the  affidavit  of  the  attending  physician  as  to 
the  origin  of  the  disease ;  it  was  an  unnecessary  statement  of  circum- 
stances, upon  which  a  mere  opinion  seems  to  have  been  based,  and 
if  true  could  not  have  prevented  the  recovery  or  constituted  a  de- 
fense to  the  action.  Cluif  v.  Mutual  Benefit  Life  Insurance  Co., 
99  Mass.  317.  Nor  does  it  appear  in  this  case  that  there  was  any 
false  representation  made  by  the  deceased  as  to  who  was  her  attend- 
ing physician.  She  had  formerly  lived  in  the  county  of  Ballard,  but 
had  removed  not  long  prior  to  the  insurance,  to  the  city  of  Padu- 
cah.  The  physicians  who  had  been  practicing  in  the  family  for  years 
were  living  in  Ballard,  and  after  the  removal  to  Paducah,  Dr.  San- 
ders was  the  only  physician  who  seems  even  to  have  prescribed  for 
her.  Dr.  Brooks  was  the  family  physician,  or  rather  had  been  em- 
ployed to  attend  her  husband  in  his  illness.  Sanders  says  that  he  was 
not  the  family  physician,  and  Brooks  having  been  the  physician  of 
the  husband,  the  wife,  when  asked  who  was  her  attending  physician, 
responded  "Dr.  Brooks."  We  think  there  is  no  fraud  or  misrepre- 
sentation in  this  statement.  She  seems  at  that  time  to  have  had  no 
medical  attendant,  and  Dr.  Brooks  was  as  much  the  physician  of 
the  family  as  any  other  member  of  the  profession  in  the  city. 

The  court  instructed  the  jury  at  defendant's  instance,  that  if  Mrs. 
Morton  was  diseased  at  the  date  of  the  application  for  insurance 
they  must  find  for  the  defendant  and  further  instructed  the  jury  that 
if  Mrs.  Morton  or  her  husband  failed  to  disclose  any  material  fact 
relative  to  the  condition  of  her  health  then  known  to  either  of  them 
at  the  date  of  the  application,  they  must  find  for  the  defendant ;  also, 
that  the  printed  or  written  application  for  the  insurance  is  a  war- 
ranty, and  if  they  believe  that  any  of  the  answers  therein  made  are 
untrue,  they  must  find  for  the  defendant.  The  jury  was  again  told 
that  it  was  the  duty  of  Mrs.  Morton  and  her  husband  to  have  dis- 
closed any  material  fact  relating  to  the  condition  of  her  health 
prior  to  the  date  of  the  insurance.    All  their  instructions  were  as 


872  Kentucky  Opinions. 

favorable  to  the  appellant  as  they  should  have  been,  and  embraced 
the  whole  law  of  the  case.  It  is  not  error  for  the  court  to  refuse 
to  instruct  the  jury  to  make  a  special  finding.  The  submission  of 
such  special  issues  being  altogether  within  the  discretion  of  the 
court.  We  perceive  no  error  in  the  record  prejudicial  to  the  appel- 
lant, and  the  judgment  is  therefore  ofHrmed. 

R.  K.  Williams,  J.  C.  Gilbert,  for  appellant. 
Marshall  &  Bloomfield,  for  appellee. 


James  Bridgeford  v.  Edward  W.  Burbank. 

Indemnity  Bond — Release  from  Liability. 

Where  one  signs  an  indemnity  bond  as  surety  for  another  who  signs 
an  appeal  bond,  he  has  a  right  to  expect  the  appellant  to  prosecute  his 
appeal  in  good  faith,  and  if  the  person  holding  the  indemnity  bond,  by 
purchase  or  otherwise,  so  far  alters  the  situation  as  to  make  it  to  his 
interest  to  have  the  judgment  affirmed,  the  indemnity  bondsmen  would 
thereby  be  released  as  to  him. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

November  14,  1875. 

Opinion  by  Judge  Lindsay  : 

On  the  24th  day  of  July,  1867,  Clark  A.  Smith  as  principal  and 
James  Bridgeford  as  surety,  executed  to  Edward  W.  Burbank  a 
penal  bond  in  the  sum  of  twelve  thousand  five  hundred  dollars. 
The  stipulations  of  said  bond  are  as  follows : 

"Whereas  the  above  named  Clark  A.  Smith  has  heretofore  and 
until  the  24th  day  of  July,  1867,  been  a  partner  and  member  of  the 
house  of  J.  H.  Oglesby  &  Co.,  of  said  New  Orleans ;  and  whereas 
the  said  Smith  did  on  the  twenty-fourth  of  July  sell,  assign,  transfer 
and  set  over  unto  the  said  Edward  W.  Burbank  all  his  right,  title 
and  interest  in  said  house  of  J.  H.  Oglesby  &  Co.;  and  whereas 
said  Burbank  did  in  said  agreement  of  sale  and  transfer  assume 
all  liabilities  and  responsibilities  of  said  Smith  in  and  to  said  house 
of  J.  H.  Oglesby  &  Co.,  excepting  only  and  fully  any  and  all  such 
responsibility  and  liability  as  to  him,  the  said  Smith,  as  might  arise  by 
reason  of  a  certain  bond  given  in  the  fifth  district  court  of  New 
Orleans,  for  the  appeal  to  the  Supreme  Court  of  Louisiana,  of  a  cer- 
tain suit  entitled  Lucien  Harris  v.  H.  G.  Andrews  &  Co. 

"Now  the  condition  of  this  bond  is  such  that  if  the  said  Qark  A 


James  Bridgeford  v.  Edward  W.  Burbank.  873 

Smith  and  th«  said  James  Bridgeford  shall  well  and  truly  pay  or 
cause  to  be  paid  unto  the  said  Edward  W.  Burbank,  his  heirs, 
executors,  and  administrators,  the  one-half  (J4)  amount  of  all  sums 
which  said  Edward  W.  Burbank  may  at  any  time  hereafter 
be  condemned  to  pay  by  reason  of  his  having  signed  as  surety 
the  said  appeal  bond  in  the  case  of  Lucien  Harris  against 
H.  G.  Andrews  &  Co.,  now  pending  in  the  Supreme  Court  of  Louis- 
iana, at  the  time  when  such  sum  or  sums  may  become  due  in  the 
discharge  of  the  obligation  in  such  bond  of  appeal  mentioned,  and 
shall  from  time  to  time,  and  at  all  times  hereafter,  save,  defend, 
keep  harmless  and  indemnify  the  said  Edward  W.  Burbank,  his 
heirs,  executors  and  administrators,  and  his  and  their  goods  and 
chattels,  lands  and  tenements,  of  and  from  one-half  pecuniary  obli- 
gation on  said  bond  of  appeal,  arising,  then  this  bond  and  obligation, 
shall  be  void,  and  otherwise  shall  remain  in  full  force  and  effect." 

There  were  two  appeal  bonds  executed  in  the  case  of  Harris  v. 
Andrews  &  Co.,  the  one  upon  the  appeal  of  Andrews  &  Co.,  the  de- 
fendants in  the  district  court,  and  the  other  upon  the  24)peal  of  J.  H. 
Oglesby  &  Co.,  who  had  intervened  or  interpleaded  in  said  suit,  and 
asserted  claim  to  certain  property  therein  attached.  Upon  each  of 
said  bonds,  the  members  of  the  firm  of  Oglesby  &  Co.,  either  as  a 
firm  or  in  their  individual  capacities,  were  bound  as  principal  obli- 
gors or  as  sureties,  and  upon  each  of  them  Burbank  was  bound  as 
surety. 

The  first  question  arising  in  this  case  is,  Which  of  these  bonds 
was  it  intended  that  the  obligation  of  Smith  and  Bridgeford  should 
indemnify  Burbank  against?  To  a  correct  understanding  of  this 
inquiry,  it  is  necessary  to  state  briefly  the  facts  attending  the  liti- 
gation, which  resulted  in  the  execution  of  two  appeal  bonds.  Harris 
sued  Andrews  &  Co.  for  large  sums  of  money,  and  among  other 
property  attached  in  the  hands  of  Oglesby  &  Co.  was  ninety-one  bales 
of  cotton,  and  in  the  hands  of  Summers,  Brannin  &  Co.,  eighty-three 
bales  of  cotton.  December  18,  1866,  Andrews  &  Co.  procured  the 
release  of  the  attachment  as  to  said  174  bales  of  cotton,  by  the  exe- 
cution of  a  bond  with  J.  H.  Oglesby  &  Co.  (said  firm  being  then 
composed  of  Oglesby  and  Smith)  as  sureties.  The  penalty  of  said 
bond  was  $24,000,  and  its  condition  was  that  Andrews  &  Co.  should 
satisfy  such  judgment  as  might  be  rendered  against  them.  By  rea- 
son of  this  bond,  J.  H.  Oglesby  &  Co.  were  enabled  to  retain  pos- 
session of  the  91  bales  of  cotton  then  in  their  hands,  and  it  seems  that 


874  Kentucky  Opinions. 

Summers,  Brannin  &  Co.  retained  the  83  bales  of  which  they  had 
possession. 

In  December,  1866,  J.  H.  Oglesby  &  Co.  filed  in  the  suit  of  Harris 
V,  Andrews  &  Co.  z  petition  or  intervention,  claiming  that  as  mer- 
chants they  had  the  right  to  subject  to  the  payment  of  a  debt  of 
$14,761.03,  due  them  from  Andrews  &  Co.,  the  91  bales  of  cotton  in 
their  possession,  and  that  by  virtue  of  some  contract  or  agreement 
with  Andrews  &  Co.,  they  held  a  claim  upon  or  an  interest  in  the  83 
bales  held  by  Brannin,  Summers  &  Co.  Harris  responded  to  said 
petition  of  intervention,  setting  up  and  relying  on  a  preferred  lien, 
which  he  claimed  to  hold  as  the  assignee  of  the  landlord  of  Andrews 
&  Co.  Upon  the  trial  of  the  cause,  Harris  recovered  judgment 
against  Andrews  &  Co.  for  $25,000,  with  interest  and  costs,  and  the 
petition  of  Oglesby  &  Co.  was  dismissed. 

The  attorneys  representing  H.  G.  Andrews  &  Co.  appealed  from 
the  judgment  against  their  clients,  and  J.  H.  Oglesby,  Clark  A. 
Smith  and  Robert  Burbank  executed  as  sureties  an  appeal  bond  for 
said  Andrews  &  Co.  in  the  sum  of  $40,000.  At  the  same  time, 
Oglesby  &  Co.  prosecuted  an  appeal  from  the  judgment  dismissing 
their  petition  of  intervention,  and  executed  a  bond  in  the  sum  of 
$250,  with  Burbank  as  their  surety.  Bridgeford  insists  that  he  in- 
demnified Burbank  against  loss  or  damage  resulting  from  his  surety- 
ship on  this  last  named  bond,  whilst  Burbank  insists  that  the  indem- 
nity is  against  the  obligation  arising  upon  the  bond  executed  for 
Andrews  &  Co.  The  obligation  of  July  24,  1867,  describes  the  re- 
sponsibility or  liability  indemnified  against,  as  such  as  "to  him,  the 
said  Smith,  mig^t  arise  by  reason  of  a  certain  bond  given  in  the 
fifth  district  court  of  New*  Orleans,  for  the  appeal  to  the  Supreme 
Court  of  Louisiana  of  a  certain  suit  entitled  Lucien  Harris  v,  H.  C 
Andrews  &  Co!'  It  obligates  Smith  and  Bridgeford  "to  pay  to 
Burbank  one-half  of  all  sums  he  may  be  condemned  to  pay  by  reason 
of  his  having  signed  as  surety  the  said  appeal  bond  in  the  case  of 
Lucien  Harris  against  H.  G.  Andrews  &  Co.,"  and  to  "keep  him 
harmless  and  indemnify  the  said  Edward  Burbank  of  and  from  the 
one-half  pecuniary  obligation  on  said  bond  arising." 

The  language  used  seems  to  point  unerringly  to  the  bond  executed 
on  the  appeal  of  H.  W.  Andrews  &  Co.  That  bond  is  described, 
certainly,  with  reasonable  accuracy ;  and  if  there  had  been  no  bond 
executed  by  J.  H.  Oglesby  &  Co.  on  an  appeal  growing  out  of  the 
judgment  rendered  in  the  suit  of  Harris  v.  Andrews  &  Co,,  upon 
their  petition  of  intervention,  there  would  be  no  ground  to  question 


James  Bridgeford  v.  Edward  W.  Burbank.  875 

that  the  bond  of  H.  W.  Andrews  &  Co.  is  the  bond  against  the  "nec- 
essary obligation/'  of  which  Smith  and  Bridgeford  undertook  to  in- 
demnify Burbank. 

The  bond  of  J.  H.  Oglesby  &  Co.  does  not  come  within  the  de- 
scription g^ven.  It  was  not  executed  for  the  appeal  to  the  Supreme 
Court  of  Louisiana  of  a  certain  suit,  entitled  Lucien  Harris  against 
H.  G.  Andrews  &  Co. ;  but  for  the  appeal  (in  an  original  proceeding 
of  that  style)  of  the  suit  of  /.  H.  Oglesby  &  Co.  v.  Lucien  Harris 
and  H.  G.  Andrews  &  Co.  Upon  the  case  as  presented  by  the  plead- 
ing and  evidence,  the  court  below  rightly  held  that  appellant  under- 
took to  save,  defend  and  keep  harmless  the  appellee,  Burbank,  from 
loss  or  damage  arising  out  of  his  being  bound  for  Smith  on  the 
bond  of  appeal  for  $40,000,  executed  for  H.  G.  Andrews  &  Co. 

We  need  not  analyze  the  petition.  It  is  not  as  concisely  drawn  as 
it  might  have  been ;  the  averments  of  facts  are  not  as  direct  and  spe- 
cific as  they  should  have  been  made ;  but  it  contains  all  of  the  nec- 
essary allegations  to  make  out  a  cause  6i  action.  The  conditions  of 
the  bond  of  indemnity  are  fully  set  out.  It  is  alleged  that  the  judg- 
ment in  the  suit  of  Harris  v.  Andrews  &  Co.  was  affirmed  by  the 
Supreme  Court  of  Louisiana,  and  that  upon  proceedings  in  the  dis- 
trict court,  regularly  had,  upon  the  bond  of  appeal  executed  on  be- 
half of  H.  G.  Andrews  &  Co.,  Burbank  was  condemned  to  pay 
nineteen  thousand  one  hundred  thirty-one  dollars,  and  was  therefore 
compelled  to  pay,  and  did  pay  on  account  thereof,  nine  thousand  five 
hundred  sixty-five  dollars  and  sixty-two  cents.  He  avers  that  ap- 
pellant failed,  neglected  and  refused  to  save,  defend  and  keep  him 
harmless  from  the  obligation  of  said  bond  as  he  had  covenanted  to 
do,  and  prays  that  he  be  compelled  to  indemnify  him  for  his  loss 
and  damage  so  sustained,  by  the  payment  to  him  of  said  sum  of 
$9,565.62. 

Appellant  insists  that  by  the  terms  of  the  bond  of  indemnity  he 
is  only  bound  to  pay  to  Burbank  one-half  the  sum  or  sums  that  he, 
Burbank,  has  been  compelled  to  pay.  He  agreed  to  pay  to  Burbank 
"the  one-half  (yi)  amount  of  all  sums  which  said  Edward  W.  Bur- 
bank may  at  any  time  be  condemned  to  pay  by  reason  of  his,  said 
Burbank,  having  signed  as  surety  the  said  appeal  bond,"  and  from 
"time  to  time  and  at  all  times  hereinafter,  to  save,  defend  and  keep 
harmless  and  indemnify  the  said  Edward  W.  Burbank  ♦  *  *  of 
and  from  one-half  the  pecuniary  obligation  on  said  appeal  bond 
arising."  Considering  all  the  language  used,  it  is  evident  that  Bur- 
bank was  to  be  paid  more  than  one-half  of  any  amount  he  might  be 


876  Kentucky  Opinions. 

compelled  to  pay.  The  stipulation  of  the  bond  is  that  Smith  and 
Bridgeford  will  pay  one-half  the  sum  or  sums  he  shall  "be  con- 
demned to  pay;"  and  this  stipulation  is  further  explained  to  mean 
"the  one-half  pecuniary  obligation  on  said  bond  of  appeal  arising." 
This  construction  accords  with  the  circumstances  attending  the 
whole  transaction. 

Bridgeford  proved  by  his  witness,  Davidson,  that  the  defense  of 
the  suit  by  Harris  was  entrusted  by  H.  G.  Andrews  &  Co.  to  J.  H. 
Oglesby  &  Co.,  and  that  they  employed  counsel  and  managed  the 
case.  Considering  the  facts  proved  by  appellant,  it  may  be  assumed 
that  the  suit  was  defended  and  the  appeal  prosecuted  at  the  instance 
and  for  the  benefit  of  J.  H.  Oglesby  &  Co.  In  point  of  fact,  Bur- 
bank  was  surety  on  the  appeal  bond  for  Oglesby  and  Smith,  and  not 
for  Andrews  &  Co.  They  were  utterly  and  hopelessly  insolvent,  and 
doubtless  regarded  the  suit  in  the  district  court  as  a  contest  between 
Harris  and  Oglesby  &  Co.  over  the  attached  property,  and  a  matter 
in  which  they  had  no  special  interest. 

Oglesby  &  Co.  filed  in  the  district  court,  and,  in  the  name  of  their 
insolvent  debtors,  executed  the  appeal  bond,  and  prosecuted  the 
appeal  to  the  Supreme  Court ;  and  as  between  the  members  of  that 
firm  and  Burbank,  they  were  primarily  liable  on  said  bond ;  and  this 
was  the  liability  of  Smith,  in  and  to  the  said  house  of  Oglest^  & 
Co.,  that  the  parties  excepted  out  of  Burbank's  undertaking  to  as- 
sume all  the  liabilities  and  responsibilities  of  Smith  in  and  to  said 
house. 

In  order,  therefore,  to  hold  Burbank  harmless  and  to  indemnify 
him  against  this  excepted  liability,  it  is  necessary  that  Smith  and 
Bridgeford  shall  pay  one-half  of  the  sum  Burbank  has  been  con- 
demned to  pay,  that  is,  one-half  the  "pecuniary  obligation"  that  arose 
against  the  firm  of  Oglesby  &  Co.,  composed  as  it  was  of  Oglesby  and 
Burbank,  on  said  appeal  bond,  when  the  judgment  of  Harris  v.  An- 
drews &  Co,  was  affirmed  by  the  Supreme  Court  of  Louisiana.  We 
do  not  concur  with  the  court  below  as  to  the  amount  of  the  "pecuniary 
obligation"  that  then  arose  against  the  new  firm  of  Oglesby  &  Co. 
It  was  not  the  full  amount  of  the  judgment  of  Harris  v.  Andrews  & 
Co.,  although  Harris,  or  his  assignee,  had  the  right  to  proceed  on 
that  bond  and  compel  the  obligors  therein  to  pay  the  full  amount  of 
his  judgment. 

The  appeal  bond  was  a  second  or  cumulative  security  to  Harris. 
The  bond  to  discharge  the  attachment  upon  which  Oglesby  &  Smith, 
who  composed  the  old  firm  of  J.  H.  Oglesby  &  Co.,  were  bound 


James  Bridgeford  v.  Edward  W.  Burbank.  877 

as  sureties,  was  the  first  security  that  had  been  given  him.  This 
bond  secured  to  him  $24,000,  and  he  might  have  proceeded  upon  it 
for  that  amount,  and  then  looked  to  the  appeal  bond  for  such  balance 
as  might  remain  unpaid.  By  the  execution  of  this  bond,  the  83 
bales  of  cotton  held  by  Brannin,  Summers  &  Co.,  and  the  91  bales 
held  by  Oglesby  &  Co.,  were  released.  The  bond  was  substituted 
for  said  cotton,  and  by  reason  of  its  execution,  the  proceeds  of  the 
ninety-one  bales  were  applied  to  the  payment  of  the  debt  due  from 
Andrews  &  Co.  to  Oglesby  &  Co.,  and  thus  became  the  assets  of 
the  last  named  firm.  The  assets  secured  by  the  sale  of  the  91  bales 
of  cotton  were,  of  course,  charged  with  the  payment  of  so  much  of 
the  claims  of  Harris  as  were  secured  by  the  attachment  bond ;  and 
when  Burbank  purchased  from  Smith,  the  latter's  interest  in  the 
house  of  Oglesby  &  Co.,  he  took  the  proceeds  of  these  91  bales  of 
cotton,  subject  to  the  contingent  liability  of  having  to  surrender  them 
in  satisfaction  of  said  bond.  This  fact  he  r-ecognized  when  the  firm 
of  Oglesby  &  Co.,  of  which  he  was  then  a  member,  consented  that 
the  proceeds  of  the  83  bales  of  cotton  held  by  Brannin,  Summers  & 
Co.  should  be  so  applied.  It  was  by  the  application,  among  other 
funds,  of  the  proceeds  of  said  83  bales  of  cotton  that  the  claims  of 
Harris,  or  rather  of  his  assignee,  was  reduced  to  the  sum  finally  paid 
by  Oglesby  and  Burbank,  viz.,  $19,131. 

The  liability  of  Smith  upon  the  attachment  bond  was  not  excepted 
out  of  the  liabilities  by  Burbank ;  and  he  could  not,  by  making  pay- 
ment on  a  judgment  founded  on  the  appeal  bond,  escape  his  liability 
upon  the  attachment  bond,  and  shift  it  upon  Bridgeford,  the  surety 
for  Smith.  The  payment  of  the  judgment  founded  on  the  appeal 
bond  was  a  satisfaction  of  all  claims  or  rights  arising  out  of  the 
attachment  bond,  but  as  between  Burbank  and  Bridgeford,  to  the 
extent  of  the  91  bales  of  cotton,  satisfied  the  judgment  on  the  appeal 
bond.  Burbank  was  paying  his  own  debt  and  not  that  of  Smith. 
Smith  was  bound  on  the  appeal  bond  as  between  himself  and  Bur- 
bank, for  one-half  the  balance  due  to  Harris  or  his  assignee,  after 
the  proceeds  of  the  174  bales  of  cotton  had  been  applied  to  the  satis- 
faction of  his  judgment.  Hence,  from  the  $19,131  paid  by  Oglesby 
&  Co.,  the  proceeds  of  the  sale  of  the  91  bales  of  cotton  should  be 
deducted,  and  Bridgeford  then  held  to  account  for  one-half  the  bal- 
ance. 

As  a  further  ground  of  defense,  Bridgeford  relies  on  the  fact  of 
Burbank  (as  a  member  of  the  firm  of  Oglesby  &  Co.)  pending  the 
appeal  in  the  Supreme  Court,  and  before  the  judgment  against  An- 


878  Kentucky  Opinions. 

drews  &  Co.  was  affirmed,  becoming  part  owner  thereof,  as  working, 
as  matter  of  law,  his  release  as  surety  on  the  bond  of  indemnity. 
He  also  charges  that  Oglesby  &  Co.  fraudulently  interfered  to  pro- 
cure the  affirmance  of  said  judgment.  The  circumstances  under 
which  Oglesby  &  Co.  acquired  an  interest  in  the  judgment  of  Harris 
against  Andrews  &  Co.,  are  not  such  as  to  authorize  the  inference 
of  bad  faith  upon  the  part  of  Burbank.  His  firm  was  compelled 
to  accept  the  transfer  of  an  interest  in  said  judgment  in  satisfaction 
of  a  claim  against  a  failing  debtor,  or  else  to  lose  the  whole  of  a  debt, 
contracted,  so  far  as  the  record  shows,  without  the  slightest  view 
upon  their  part  of  looking  to  said  judgment  as  a  security. 

Notwithstanding  this  fact,  however,  if,  by  reason  of  this  transfer, 
Burbank  became  so  far  interested  in  the  Harris  judgment  as  to  make 
it  his  interest  to  have  it  affirmed,  rather  than  reversed  by  the  Su- 
preme Court,  Bridgeford  ought  not  to  be  held  bound  on  the  bond 
of  indemnity.  When  Bridgeford  signed  said  bond  he  had  the  right 
to  expect,  and  no  doubt  did  expect  Oglesby  &  Burbank  to  prosecute 
the  Andrews  &  Co.  appeal  with  good  faith  and  reasonable  diligence, 
and  under  the  circumstances  that  was  an  implied  contract  between 
the  parties  to  the  bond  of  indemnity,  that  they  would  so  prosecute  it. 
Burbank  had  no  right  to  so  far  alter  the  situation  by  agreeing,  how- 
ever innocently,  to  an  interest  in  the  appeal  in  the  Supreme  Court 
adverse  to  that  of  Bridgeford.  He  was  in  a  limited  sense  the  agent 
of  Bridgeford  to  prosecute  said  appeal;  and  if  by  his  own  act  or 
that  of  his  firm,  he  acquired  such  an  interest  in  the  Harris  judg- 
ment as  to  create  in  his  bosom  a  conflict  between  self  interest  and 
the  duty  he  owed  to  Bridgeford,  and  without  notice  to  the.  latter  of 
such  change  of  interest,  he  permitted  the  cause  to  progress  to  a  hear- 
ing in  the  Supreme  Court,  he  thereby  subjected  Bridgeford  to  a 
risk  that  he  could  not  have  anticipated  when  he  signed  as  surety 
for  Smith.  H  there  was  such  a  change  of  interest  (a  question  of 
fact  upon  which  we  express  no  opinion),  Burbank  necessarily  lost 
all  incentive  to  labor  for  the  reversal  of  the  judgment  against 
Andrews  &  Co.  He  profited  by  the  affirmance.  He  would  have  lost 
money  had  he  succeeded  in  the  attempt.  He  contracted  with  Bridge- 
ford that  he  would  work  to  reverse  it.  If,  by  the  acquisition  of  the 
alleged  interest,  Burbank  changed  his  attitude  of  himself  and 
Bridgeford,  and  by  such  change  increased  the  risk  of  the  latter,  he 
cannot  complain  that  the  surety,  whose  rights  were  disregarded  and 
whose  risk  was  increased,  is  thereby  discharged  from  the  obligations 


Southern  Mut.  Life  Ins.  Co.  v.  Eliza  J.  Downs,  et  al.      879 

of  his  contract  of  suretyship.  Mayhew  v.  Boyd,  5  Md.  109 ;  Norton 
&  Williams  v.  Roberts  &  Latham,  4  Mon.  492. 

Bridgeford  is  not  bound  to  show  actual  injury.  If  he  shows  that 
the  judgment  of  Harris  v.  Andrews  &  Co.  was  affirmed  by  the 
Supreme  Court  of  Louisiana,  and  that  Burbank  profited  by  the 
affirmance,  his  defense  is  made  out.  Of  course,  if  Burbank,  by 
himself  or  through  the  agency  of  his  firm,  interfered  to  procure  an 
affirmance  of  the  judgment  against  Harris  &  Co.,  such  interference 
operated  to  discharge  Bridgeford,  as  a  party  indemnified  cannot  be 
allowed  to  be  instrumental  in  bringing  about  the  event,  upon  the  hap- 
pening of  which  the  liability  of  the  indemnitor  depends.  We  need 
not  decide  whether  the  court  erred  in  compelling  th-e  appellant  to 
answer  before  a  complete  transcript  of  the  proceedings  in  the  Louis- 
iana court  was  filed,  as  upon  the  return  of  the  cause  he  may  avail 
himself,  by  an  amended  answer,  of  any  information  acquired  there- 
from. The  alleged  error  as  to  the  admission  of  the  statement  of 
Ehipey  need  not  be  considered,  as  the  deposition  of  the  absent  wit- 
ness will  doubtless  be  taken  before  another  trial  of  the  cause. 

As  some  of  the  rulings  of  the  court  below  do  not  conform  to  the 
views  herein  expressed,  the  judgment  is  reversed  and  the  cause  re- 
manded for  a  new  trial  upon  principles  consistent  with  this  opinion. 

Lee  &  Rodman,  Muir  &  Bijou,  for  appellant, 
Hagan  &  Dupuy,  for  appellee. 


Southern  Mutual  Life  Ins.  Co.  v.  Eliza  J.  Downs,  et  al. 

Life  Insurance  Policy — Failure  to  Pay  Premium. 

When  a  life  insurance  policy  provides  that  failure  to  pay  a  premium 
when  due  renders  the  policy  void,  and  It  Is  shown  that  such  failure 
occurred,  there  can  be  no  recovery  on  such  policy. 

Burden  of  Proof. 

When  in  a  suit  on  an  Insurance  policy  the  company  claims  a  forfeit- 
ure on  account  of  a  failure  to  pay  a  premium,  the  burden  Is  on  the 
plaintiff  to  show  that  the  right  to  forfeit  had  been  waived  by  the  com- 
pany, or  that  the  agreement,  if  any  was  made,  to  extend  the  time  of 
payment  had  been  waived  by  the  company. 

APPEAL  FROM  JEFFERSON  CIRCUIT  COURT. 

November  19,  1875. 

Opinion  by  Judge  Pryor  : 

It  is  immaterial  in  this  case  what  statements  were  made  by  Petrie, 


88o  Kentucky  Ojpinions. 

the  agent  of  the  company,  in  order  to  induce  the  insured  to  enter  into 
the  contract.  There  is  no  fraud  alleged  in  its  procurement,  and  the 
representations  then  made,  either  to  Downs,  the  insured,  or  to  others 
by  the  agent,  are  not  competent  to  change  the  terms  of  the  policy. 
The  policy  is  the  evidence  of  the  contract  between  the  parties,  and 
what  was  said  by  the  agent  prior  to  its  date,  in  order  to  effect  the 
insurance,  should  have  been  excluded.  It  is  claimed  by  appellees 
that,  prior  to  the  falling  due  of  the  second  semi-annual  premium^ 
the  appellant,  by  its  local  agent,  waived  the  right  to  forfeit  the 
policy,  and  extended  the  time  of  payment  for  thirty  days.  The 
petition  fails  to  allege  in  direct  terms  the  authority  of  the  agent  to 
extend  the  time  for  payment,  or  to  waive  a  forfeiture;  but  the 
answer  supplied  this  defect  by  denying  that  the  agents,  or  either 
of  them,  had  any  such  authority  from  the  company. 

By  the  terms  of  the  policy  the  failure  on  the  part  of  the  insured 
to  pay  the  premiums  on  or  before  the  day  they  fell  due,  rendered 
the  contract  of  insurance  void,  and  forfeited  all  payments  previously 
made.  It  is  further  indorsed  on  the  policy  accepted  by  this  insured, 
that  "no  person,  except  the  president  or  secretary,  is  authorized  to 
make,  alter  or  discharge  contracts  or  waive  forfeitures."  It  must  be 
assumed  that  the  deceased  knew  that  the  president  and  secretary 
were  the  only  persons  authorized  to  waive  the  forfeiture,  as  it  was 
a  part  of  the  contract ;  and  this  indorsement,  independent  of  other 
proof,  negatives  the  idea  that  the  local  agent  had  any  such  authority. 
The  burden,  then,  is  on  the  appellee  to  show  that  this  right  to  forfeit 
had  been  waived  by  the  company,  or  that  the  agreement,  if  any  was 
made,  to  extend  the  time  of  payment,  had  been  waived  by  the 
company. 

The  local  agent  would  have  made  no  such  agreement  binding  upon 
the  company  unless  authorized  to  do  so.  This  authority  must  have 
been  derived  from  the  company  through  its  president  or  secretary, 
or  by  reason  of  some  corporate  action,  and  must  be  shown  to  exist, 
and  cannot  be  implied  from  the  fact  only  that  the  agent  exercised 
the  power.  The  authority  may  be  general  or  restricted  to  a  certain 
class  of  patrons ;  but  when  established  it  must  also  appear  that  the 
alleged  extension  of  payment  was  given  Downs  upon  the  latter's 
agreement  to  pay  within  or  at  the  expiration  of  the  thirty  days. 
The  evidence  in  the  case  fails  to  show  any  custom  on  the  part  of 
the  company  in  dealing  with  its  patrons  by  which  its  rules  in  regard 
to  the  waiver  of  the  forfeiture  had  been  abandoned ;  and  the  only 
question  to  be  determined  upon  the  facts  of  the  case  as  they  now  ap- 


Southern  Mut.  Life  Ins.  Co.  v.  Eliza  J.  Downs,  et  al.      88i 

pear,  is,  Was  there  an  agreement  made  between  appellant's  local 
agent  and  Downs,  prior  to  the  falling  due  of  the  premium,  by  which 
the  time  of  payment  was  extended  for  thirty  days,  and  if  so,  did  the 
local  agent  have  any  authority  from  the  president  or  secretary  to 
make  such  an  agreement  with  Downs,  or  did  he  have,  by  instructions 
from  the  company  or  its  secretary,  a  general  authority  to  extend 
such  payments  when  applied  to  by  its  patrons? 

It  is  not  pretended  that  the  regulations  of  the  company  were 
changed  by  any  corporate  action.  There  is  a  distinction  to  be  made 
between  an  agreement  of  this  character  entered  into  after  forfeiture, 
and  a  like  agreement  before  forfeiture.  After  the  non-payment  oc- 
curred, the  contract  becomes  void ;  and  a  mere  promise  made  after- 
wards to  receive  the  money,  or  to  give  time  for  payment,  must  be 
regarded  as  an  act  of  indulgence  or  favor  only,  and  when  not  com- 
plied with  by  the  insured  prior  to  his  death,  cannot  afterwards  be 
enforced.  If,  however,  the  time  is  extended  before  the  forfeiture 
takes  place,  no  forfeiture  occurs  until  the  expiration  of  the  time  to 
which  the  payment  has  been  extended.  The  company  would  be 
estopped  to  say  that  there  was  no  consideration  for  such  an  agree- 
ment, as  its  own  act  has  induced  a  non-compliance  with  the  original 
contract  under  which  the  right  of  forfeiture  is  claimed.  Both  the 
insured  and  the  local  agent  were  laboring  under  the  belief  that  the 
right  to  extend  the  payment  was  a  part  of  the  original  contract; 
still  this  cannot  bind  the  company  unless,  by  general  or  special  in- 
structions given  him,  this  local  agent  was  clothed  with  this  additional 
power. 

That  part  of  the  instruction  No.  2  reading,  "or  was  held  out  to  the 
public  by  the  company  or  its  secretary  as  having  such  authority, 
or  if  said  agent  so  held  himself  out  to  the  public  as  having  such 
authority,  with  the  knowledge,  approval  and  ratification  of  the 
company,  it  is  estopped,"  etc.,  should  not  have  been  given,  for  the 
reason  that  there  were  no  facts  up>on  which  to  base  it.  If  the  exten- 
sion was  made  by  the  agent  at  the  instance  of  Downs  upon  the  lat- 
ter*s  agreement  to  pay  the  premium  within  or  at  the  expiration  of  the 
thirty  days,  and  this  act  of  the  agent  was  ratified  by  the  company 
or  consented  to  by  the  secretary,  it  will  bind  the  company ;  or  if  the 
agent  had  authority  to  make  such  agreements,  either  verbal  or  writ- 
ten, from  the  company  or  its  secretary,  such  an  agreement,  when 
made,  would  bind  the  company. 

The  facts  of  this  case  have  not  been  discussed  only  so  far  as  is 
required  to  settle  the  legal  questions  upon  the  facts  as  they  are 

56 


882  Kentucky  Opinions. 

now  presented.  For  the  reasons  indicated  the  judgment  is  re- 
versed and  the  cause  remanded,  w^th  directions  to  award  a  new 
trial  and  for  further  proceedings  consistent  with  this  opinion.  The 
pleadings  should  be  amended  so  as  to  allege  more  definitely  what  the 
agreement  was  between  the  agent  and  the  insured. 

John  Roberts,  Williafn  T.  Barrett,  John  Boyle,  for  appellant. 
E.  E.  McKay,  for  appellees. 


W.  E.  Clark  v.  A.  Lee's  Assignee,  et  al. 

Public  Schools — Principal  of  a  Public  School. 

The  principal  of  the  public  schools  of  the  city  of  Paris  is  an  em- 
ployee of  the  state,  and  the  money  in  the  hands  of  the  officers  of  said 
city  for  school  purposes  is  public  money  held  by  the  officers  as  agents 
of  the  state. 

Common-School  Ssrstem. 

The  state  has  undertaken  to  maintain  a  system  of  conunon  schools 
and  this  is  a  state  system. 


Pay  of  Teachera— Attachment 

Hie  state  must  be  allowed  without  interference  by  creditors  to  em- 
ploy and  pay  teachers,  and  the  amount  due  fr<Hn  the  state  to  its  teach- 
ers cannot  be  reached  by  attachment 

APPEAL  FROM  BOURBON  CIRCUIT  COURT. 

November  23,  1875. 

Opinion  by  Judge  Lindsay  : 

In  the  matter  of  managing  and  supporting  the  common  schools 
established  within  its  territorial  limits,  the  city  of  Paris  acts  in  its 
political  capacity.  It  is  a  part  of  the  machinery  of  the  state  govern- 
ment, by  and  through  which  the  system  of  common  schools,  estab- 
lished by  the  institution,  is  maintained. 

It  is  immaterial  whether  in  strict  law,  the  appellant,  who  is  the 
principal  of  the  public  school  of  the  city  of  Paris,  is  or  not  an  offi- 
cer. He  is  an  employe  of  the  state.  The  moneys  in  the  hands  of 
the  officers  of  the  city  of  Paris,  set  apart  by  law  for  school  pur- 
poses, are  public  moneys,  and  are  held  by  those  officers  as  agents 
and  representatives  of  the  commonwealth;  and  this  is  the  case  as 
well  with  the  moneys  received  by  special  taxation  in  the  municipal- 


Lexington,  etc.,  R.  Co.  v.  George  A.  Castleman.         883 

ity  of  Paris,  as  that  turned  over  to  its  officers  by  the  school  com- 
missioner of  the  county  of  Burbon. 

The  state  has  undertaken  to  maintain  a  system  of  common 
schools.  To  do  this,  it  must  be  allowed,  without  interference  by 
creditors,  to  employ  and  pay  competent  teachers.  The  amount  due 
from  the  state  to  the  teacher  of  a  public  or  common  school  cannot 
be  reached  by  attachment.  Tracy  &  Loyd  v.  Hombuckle  &  Wife, 
8  Bush  336. 

The  funds  attached  in  this  case  are  school  funds,  and  they  were 
attached  in  the  hands  of  an  officer  set  apart  by  law,  to  hold  and 
disburse  them  in  accordance  with  law.  The  attachments  should 
have  been  discharged.  Judgment  reversed  and  cause  remanded 
for  a  judgment  conformable  to  the  views  herein  expressed. 

Brent  &  McMillan,  for  appellant. 
Buckler  &  Paton,  for  appellees. 


Lexington,   Louisville   &   Cincinnati    R.   Co.   v.   George   A. 

Castleman. 

■ 

Cost  Bond^-^Non-Resident  Plainti£P8. 

The  failure  of  a  defendant  to  move  to  dismlBB  because  no  cost  bond 
is  filed  amounts  to  a  waiver  of  the  right  he  has  to  have  the  action  dis- 
missed. 

APPEAL  FROM  FAYETTE  CIRCUIT  COURT. 

November  24,  1875. 

« 

Opinion  by  Judge  Lindsay  :  - 

The  failure  of  a  non-resident  plaintiff  to  execute  a  bond  for  costs 
at  the  time  he  institutes  his  action,  cannot  be  taken  advantage  of 
by  being  pleaded  as  matter  in  abatement.  We  do  not  doubt  that 
a  statement  in  the  answer  of  the  fact  of  the  non-residency,  and  of 
the  failure  to  execute  the  bond,  may  be  made  the  foundation  of  a 
motion  to  dismiss  the  action.  But  in  this  case  no  such  motion  was 
made,  and  we  are  constrained  to  hold  that  the  failure  to  make  the 
motion  to  dismiss  amounted  to  a  waiver  of  the  right  secured  to 
defendant  litigants  by  Sec.  5,  Chap.  26,  General  Statutes. 

The  original  answer  does  not  show  that  the  receiver  of  the  rail- 
road company  was  appointed  by  the  Louisville  Chancery  Court, 
prior  to  the  time  the  moneys  in  the  hands  of  the  garnishee  were 


884  Kentucky  Opinions. 

earned.  If  he  was  not,  it  is  plain  the  title  to  these  moneys  did  not, 
and  could  not  pass  to  him  in  virtue  of  his  subsequent  appointment 
The  facts  that  Monroe  was  the  agent  of  the  railroad  company,  and 
that  his  possession  was  that  of  his  principal,  amounts  to  nothing 
in  a  case  of  this  character.  Upon  a  proceeding  to  enforce  a  judg- 
ment after  a  return  of  no  property  found,  moneys  in  the  posses- 
sion of  the  debtor  himself  can  be  reached. 

The  averment  in  the  amended  answer  that  the  mortgage  to 
Douglas  covers  the  earnings  and  profits  of  the  defendant  railroad, 
is  but  the  averment  of  a  conclusion  of  law.  The  stipulations  con- 
tained in  the  mortgage  are  not  set  out  in  the  answer,  and  no  copy 
thereof  was  filed  with  it. 

Neither  the  answers  of  the  company  nor  the  response  of  the 
garnishee  show  title  in  either  the  receiver  or  the  mortgagee,  and 
we  are  therefore  of  opinion  that  the  court  below  did  not  err  in 
applying  the  attached  property  to  the  satisfaction  of  appellee's 
judgment. 

Judgment  affirmed, 

Morton  &  Parker,  for  appellant. 
Smith  &  Shelby,  for  appellee. 


Livingston  County  Court  v,  S.  H.  Piles. 

Collection  of  Taxes — Duties  of  Tax  Collector. 

The  act  of  February,  1868,  authorizing  the  appointment  of  a  tax  col- 
lector did  not  fix  the  time  he  should  hold  such  office;  and  if  while  act- 
ing as  such  he  collects  taxes  he  and  his  sureties  are  liable  for  his 
failure  to  account  for  them,  and  the  fact  that  he  is  styled  as  sheriff  in 
the  bond  cannot  affect  the  liability  of  his  sureties. 

Levy  and  Collection  of  Taxes. 

Where  a  tax  levied  under  claim  of  legal  authority  has  been  collected 
by  an  officer  whose  only  authority  for  making  the  collection  Is  the  act 
under  which  the  tax  was  collected,  he  cannot  when  sued  for  the  money, 
escape  liability  on  the  ground  that  it  was  levied  and  collected  without 
authority  of  law  unless  the  want  of  authority  is  clear. 

APPEAL  FROM  LIVINGSTON  CIRCUIT  COURT. 

November  26,  1875. 

Opinion  by  Judge  Cofer: 

The  act  of  February,  i868,  authorized  the  county  court  to  ap- 


Livingston  County  Court  z/.  S.  H.  Piles.  885 

point  a  collector  to  collect  the  tax  authorized  by  said  act  to  be 
levied,  but  did  not  fix  the  term  for  which  he  should  remain  in  office. 
Piles,  having  been  appointed  collector  of  the  tax  in  1868,  continued 
in  office;  and,  although  he  is  described  in  the  bond  sued  on  as 
sheriff,  he  and  his  sureties  undertook  that  he  would  collect  and 
account  for  the  jail  tax.  They  do  not  deny  that  Piles  collected  the 
tax,  but  merely  deny  that  he  collected  it  as  sheriff,  or  that  he  was 
ordered  to  collect  it  as  sheriff.  He  was  empowered  to  collect  the 
tax  under  his  appointment  as  collector,  and  that  he  is  styled  sheriff 
instead  of  collector  cannot  affect  the  liability  of  his  sureties.  . 

We  think  the  whole  act,  when  taken  and  considered  together, 
authorized  the  county  court  to  levy  and  collect  a  tax  of  fifty  cents 
on  the  $100  worth  of  taxable  property,  and  fifty  cents  on  each  title 
each  year  for  three  years. 

It  is  true  that  a  delegation  of  the  power  of  taxation  will  gen- 
erally be  strictly  construed  in  favor  of  the  public ;  but  when  a  tax 
has  been  levied  under  claim  of  legal  authority,  and  has  been  col- 
lected by  an  officer  whose  only  authority  for  making  the  collection 
was  the  act  under  which  the  tax  was  levied,  he  cannot,  when  sued 
for  the  money  thus  collected,  escape  liability  for  it  on  the  ground 
that  it  was  levied  and  collected  without  authority  of  law,  unless 
the  want  of  authority  is  clear. 

If  the  tax  payers  had  resisted  the  collection  of  the  tax,  the  courts 
might  have  required  the  county  court  to  exhibit  clear  authority  to 
levy  and  collect  it;  but  the  tax  having  been  collected,  the  officer 
who  collected  it  and  has  the  money  in  his  hands  cannot  escape  lia- 
bility because  of  a  mere  doubt  whether  the  tax  was  legally  levied 
and  collected.  Nor  can  the  appellees  escape  liability  upon  the 
ground  that  a  greater  sum  was  collected  than  was  actually  required 
to  build  the  jail  and  jailer's  residence.  It  was,  in  the  very  nature 
of  things,  impossible  to  know  the  exact  amount  that  would  be  re- 
quired to  complete  the  building,  or  the  amount  that  would  be  col- 
lected on  the  levy  made. 

We  are,  therefore,  of  the  opinion  that  the  court  erred  in  dismiss- 
ing the  petition,  and  the  judgment  is  reversed,  and  the  cause  is 
remanded  for  a  new  trial  upon  principles  not  inconsistent  with 
this  opinion. 

/.  K.  King,  IV.  D.  Greer,  Lindseys,  for  appellant. 
Caswell  Bennett,  for  appellee. 


886  Kentucky  Opinions. 

John  Mattingly  v.  F.  L.  Simms,  et  al. 

Attachment-rBurden  on  Plainti£F. 

The  plaintiff  In  an  attachment  Bult  must  show  that  he  had  a  subsist- 
InK  cause  of  action  when  he  commenced  it,  either  by  showing  that  his 
debt  was  due  and  unpaid  or  by  showing  that  the  grounds  of  attach- 
ment, or  some  one  of  them,  existed. 

APPEAL  FROM  DAVIESS  CIRCUIT  COURT. 

November  26,  1876. 

Opinion  by  Judge  Peters  : 

Sec.  259,  Civ.  Code,  authorizes  an  attachment  by  a  creditor 
against  the  property  of  his  debtor  before  his  claim  is  due,  when 
either  of  the  reasons  therefor  exist  as  therein  specified;  and  if  a 
suit  is  brought  and  an  attachment  sued  out  on  a  claim  not  due  at 
the  institution  of  the  suit,  it  cannot  be  maintained  unless  the  at- 
tachment is  levied  on  the  property  of  the  debtor,  and  is  sustained. 
And  if  that  is  not  the  case,  it  is  not  sufficient  to  amend  the  petition 
and  allege  that  the  debt  is  then  due,  and  unpaid.  The  plaintiff 
must  show  that  he  had  a  subsisting  cause  of  action  when  he  com- 
menced it,  either  by  showing  that  his  debt  was  due  and  unpaid, 
or  by  showing  that  the  grounds,  or  some  one  of  them,  existed  as 
provided  in  Sec.  259,  Qv.  Code. 

'  In  this  case  the  debt  was  not  due  when  the  action  was  instituted ; 
and  although  it  appears  from  the  officer's  return  that  the  attach- 
ment was  levied  on  property  of  the  defendants,  it  does  not  appear 
that  it  was  sustained,  and  consequently  the  jurisdiction  of  the  court 
is  not  shown.  But  if  the  plaintiff  failed  to  sustain  his  attachment, 
his  action  should  abate,  and  his  right  to  bring  another  action  be 
preserved.  The  judgment  in  this  case  is  an  absolute  dismissal  of 
the  action,  and  is  final ;  and  it  will  operate  as  a  bar  to  another  action 
on  the  note,  which  is  erroneous  and  prejudicial  to  appellant. 

Wherefore  the  judgment  is  reversed,  and  the  cause  is  remanded 
with  directions  to  dismiss  the  action  without  prejudice  to  another 
action  on  the  note. 

W.  M.  Sweeney,  for  appellant    Ray  &  Walker,  for  appellees. 


Jarvis  Thompson  v,  Nancy  Glinn. 

Mental  Capacity  to  Contract — Deed. 

The  deed  of  an  insane  person  is  not  necessarily  void.  Snch  deeds 
stand  on  the  same  ground  with  the  deeds  of  infants,  and  courts  should 
not  set  them  aside  only  when  Justice  requires  it,  and  only  then  on 
terms  just  to  all  parties. 


Jarvis  Thompson  v.  Nancy  Glinn.  887 

APPEAL  FROM  SCOTT  CIRCUIT  COURT. 
December  1,  1875. 

Opinion  by  Judge  Cofer  : 

June  24,  1863,  the  appellee  conveyed  to  the  appellant  a  tract  of 
land  in  Scott  county,  containing  eighteen  acres,  for  the  recited  con- 
sideration of  $717.00  in  hand  paid.  In  August,  1871,  she  brought 
this  suit  to  have  said  deed  set  aside  and  cancelled. 

She  alleged  that  before  and  at  the  time  of  making  said  convey- 
ance, she  was  of  unsound  mind  and  incapable  of  making  a  valid 
contract;  that  the  only  consideration  for  the  conveyance  was  a 
negro  woman  and  her  child,  then  not  worth  over  one-third  as  much 
as  the  land;  that  in  consequence  of  her  mental  condition  she  was 
incapable  of  judging  of  the  then  value  of  slaves,  but  that  the 
appellant,  who  was  fully  aware  of  the  depreciation  of  their  value 
in  consequence  of  the  war  then  pending,  took  advantage  of  her 
mental  imbecility  and  induced  her  to  trade  her  land  for  the  slaves. 

The  appellant  denied  the  material  allegations  of  the  petition,  and 
averred  that  the  facts  were  that  the  appellee  had  been  the  owner 
of  the  slaves,  and  had  sold  them  to  a  negro  trader,  and  afterwards, 
repenting  of  what  she  had  done,  desired  to  get  them  back,  and  in- 
duced him  to  go  to  the  person  to  whom  she  had  sold  them,  and  buy 
them  back  for  her;  that  he  kept  them  in  his  possession  from  the 
fall  of  i860,  when  he  got  them  back,  until  the  deed  was  made; 
and  was  at  all  times  ready  and  willing  to  let  her  have  them  upon 
being  reimbursed,  and  that  being  unable  to  refund  the  amount  paid 
out  by  him  in  money,  she  conveyed  him  the  land  for  that  purpose 
at  say  $665,  and  let  him  have  a  note  for  $185.00,  he  having  paid 
out  for  the  slaves  $850  in  cash. 

The  evidence  shows  that  she  sold  the  slaves  on  the  12th  of  April, 
i860,  and  that  soon  thereafter  she  became  very  desirous  to  get  . 
them  back,  and  was  greatly  distressed  because  she  had  sold  them; 
that,  not  having  the  money  to  repurchase  them,  she  applied  to  sev- 
eral persons  to  buy  them  for  her;  and  that  the  appellant  finally 
consented  to  do  so,  and  made  the  purchase  in  September,  i860. 
On  the  27th  of  June,  i860,  the  appellee  was  found  by  a  jury  to  be 
of  unsound  mind,  and  was  sent  to  an  insane  asylum,  where  she 
remained  until  the  28th  of  September  of  that  year,  when  she  was 
discharged  as  restored;  and  in  June  following  she  was  found  by 
a  jury  to  be  of  sound  mind ;  and  the  appellant,  who  had  been  ap- 
pointed her  committee,  was  discharged.     She  subsequently  recog- 


888  Kentucky  Opinions. 

nized  her  obligation  to  take  the  slaves  and  reimburse  the  appellant, 
and  on  the  24th  of  June,  1863,  made  the  deed.  In  April,  1863, 
she  was  again  found  to  be  insane,  and  was  sent  to  an  asylum, 
where  she  remained  until  1870,  when,  being  again  restored,  she 
was  discharged. 

It  is  most  probable  that  her  aberration  of  mind  was  not  caused 
by  the  distress  consequent  upon  having  sold  the  slaves;  but  there 
can  be  no  doubt  that  her  malady  was  greatly  aggravated  thereby; 
and  it  is  equally  clear  that  the  appellant  was  induced  to  repurchase 
them  by  the  request  of  herself  and  her  friends,  and  that  he  did  not 
do  so  on  his  own  account.  It  also  satisfactorily  appears  that  at 
the  time  she  requested  him  to  purchase  the  slaves  for  her,  and  when 
she  agreed  to  compensate  him  for  his  outlay  by  conveying  to  him 
the  land,  she  was  not  insane,  while  it  is  equally  clear  that  she  was 
insane  when  she  executed  the  conveyance.  There  is  no  evidence 
whatever  of  any  importunity  on  the  part  of  the  appellant  to  induce 
her  to  make  the  conveyance,  or  of  any  bad  faith  or  improper  con- 
duct on  his  part  in  the  whole  transaction.  He  paid  $850  for  the 
slaves,  and  not  having  been  able  to  collect,  the  $185  note  and  the 
land,  worth  not  exceeding  $700,  is  all  the  return  he  has  received 
therefor.  Under  such  circumstances  we  do  not  think  the  deed 
should  have  been  set  aside.  The  deed  of  an  insane  person  is  not 
necessarily  void.  Jenkins,  et  al.,  v,  Jenkins,  3  T.  B.  Mon.  327; 
Hunt  V,  Weir,  4  Dana  347;  Jones's  AdmW  v.  Perkins,  5  B.  Mon. 
222;  2  Greenleaf  on  Evidence,  Sec.  368.  Such  deeds  stand  upon 
the  same  ground  with  the  deeds  of  infants.  2  Greenleaf  369; 
Breckenridge's  Heirs  v.  Ormsby,  i  J.  J.  Marsh.  236.  The  chancel- 
lor will  interfere  to  set  them  aside  only  when  justice  requires  it. 
Hopson  V,  Boyd,  6  B.  Mon.  296,  and  then  only  upon  such  terms 
as  will  be  just  to  all  the  parties  interested.  Bailey  v,  Bamberger, 
II  B.  Mon.  115;  Petty  v,  Roberts,  7  Bush  410;  2  Kent's  Commen- 
taries 240.  The  same  principle  is  recognized  in  Coleman,  et  al.,  v. 
Fraser,  et  al.,  3  Bush  300.  At  the  time  the  appellant  expended 
his  money  at  the  instance  of  the  appellee,  the  slaves  were  worth 
the  money  he  advanced  for  them;  he  advanced  it  for  her  bene- 
fit, and  without  any  view  to  his  own  interest;  his  act  was  one 
of  benevolence,  and  not  of  selfishness ;  it  was  approved  by  the  ap- 
pellee; and  but  for  subsequent  events,  which  neither  could  foresee, 
it  is  probable  that  all  the  advantage  derived  from  the  purchase 
would  have  resulted  to  her.  It  is  certain  that  the  appellant  neither 
expected  nor  could  have  derived  any  pecuniary  benefit  from  what 


J.  D.  Jones  v.  W.  O.  Hampton's  Assignee.  889 

he  did;  and  it  would  be  unjust  now  to  deprive  him  of  the  benefit 
of  the  partial  indemnity  which  he  has  obtained. 

As  already  said,  the  appellee  was  mentally  competent  to  bind 
herself  when  she  made  the  request  of  appellant  that  he  would  pur- 
chase the  slaves  for  her,  and  also  when  she  subsequently  agreed 
to  convey  the  land  to  reimburse  him ;  and  the  circumstance  that  she 
was  insane  when  she  made  the  deed  will  not  entitle  her  to  have  it 
set  aside. 

Judgment  reversed  and  cause  remanded  with  directions  to  dis- 
miss the  petition. 

Geo,  E,  Prewitt,  A,  Duvall,  for  appellant. 
/.  r.  Robinson,  for  appellee. 


J.  D.  Jones  v,  W.  O.  Hampton's  Assignee. 

Promissory  Note^Assignor. 

Where  a  promissory  note  not  discounted  by  an  incorporated  bank, 
not  being  negotiable  as  well  as  payable  in  bank,  one  signing  on  the 
back  thereof  is  only  liable  as  assignor  and  cannot  be  sued  until  the 
maker  of  the  note  has  been  prosecuted  to  insolvency. 

APPEAL  FROM  BOYD  CIRCUIT  COURT. 
December  6,  1876. 

Opinion  by  Judge  Cofer  : 

John  M.  Dunlap  executed  a  note  for  one  hundred  fifty  dollars, 
payable  ninety  days  after  date,  at  the  Ashland  National  Bank,  to 
the  order  of  the  appellant,  J.  D.  Jones.  The  note  was  indorsed  by 
Jones  for  the  accommodation  of  the  maker,  and  was  delivered  to 
him  to  raise  money  by  a  sale  thereof. 

Dunlap  sold  and  delivered  the  note  to  Wilson,  Andrews  &  Co., 
who  were  private  bankers.  Wilson,  Andrews  &  Co.  made  an  as- 
signment of  all  their  effects  to  Hampton  before  maturity  of  the 
note,  and  Hampton,  as  assignee,  indorsed  the  note  to  A.  C.  Camp- 
bell, cashier  of  the  Ashland  National  Bank,  for  collection  and 
credit.  The  note  was  protested  for  non-payment,  and  suit  was 
brought  thereon  by  Hampton,  assignee,  against  both  Dunlap  and 
Jones.  Jones  demurred  to  the  petition,  and  his  demurrer  was  over- 
ruled. He  then  filed  an  answer,  and  a  trial  was  had,  which  resulted 
in  a  judgment  against  him;  and  he  prosecuted  this  appeal  to  obtain 
its  reversal. 


890  Kentucky  Opinions, 

The  note  was  not  discounted  by  an  incorporated  bank,  and  not 
being  negotiable  as  well  as  payable  in  bank,  could  not  have  been 
placed  upon  the  footing  of  a.  foreign  bill  of  exchange,  if  it  had 
been  discounted  in  the  bank  where  it  was  payable.  Sec.  21,  Chap. 
22,  Gen.  Stat.  The  appellant  was,  therefore,  only  liable  as  assignor. 
Sec.  14,  Chap.  22,  Gen.  Stat.,  and  cannot  be  sued  until  the  maker  of 
the  note  has  been  prosecuted  to  insolvency. 

The  court,  therefore,  erred  in  overruling  the  demurrer.  Judg- 
ment reversed,  and  cause  remanded  with  directions  to  sustain  the 
demurrer  and  dismiss  the  petition  as  to  the  appellant. 

/.  D.  Jones,  for  appellant.    L.  T.  Moore,  for  appellee. 


S.  M.  Jones's  Adm'r,  et  al,,  v.  Patsy  Shy's  Adm'r,  et  al. 

Administrator  Bujring  E^iuity  in  Real  Estate. 

An  administrator  who  is  an  heir  may  legally  purchase  for  the  estate 
the  equity  of  redemption  in  real  estate  sold  and  redeem  the  land  from 
the  original  purchaser  and  save  money  to  the  estate  he  is  adminis- 
tering, and  where  he  does  so  is  entitled  to  credit  for  the  sum  thus  ex- 
pended. 

Administrator's  Right  to  Buy  Real  Estate. 

While  an  administrator  has  no  right  to  invest  personal  assets  in  real 
estate  he  may  do  so  when  it  is  the  only  means  of  saving  a  debt  due  to 
the  estate. 

Administrator's  Liability. 

Where  an  insolvent  debtor  to  an  estate  has  a  claim  against  the 
estate  and  the  administrator  fails  to  withhold  money  due  to  such  debtor 
but  pays  him  in  full  and  is  unable  to  collect  the  debt  due  the  estate, 
he  is  liable  for  negligence  in  having  paid  such  debtor. 

APPEAL  FROM  MERCER  CIRCUIT  COURT. 

December  9,  1876. 

Opinion  by  Judge  Cofer  : 

B.  M.  Jones,  administrator  of  S.  M.  Jones,  had  in  his  hands  debts 
due  his  intestate  against  Metheny,  Kennedy,  etc.,  amounting  to 
more  than  two  thousand  dollars,  for  which  he  recovered  judgment, 
and  to  satisfy  which  he  caused  Kennedy's  equity  of  redemption  in 
real  estate  property  sold  under  fi.  fa.  and  purchased  by  Forsten,  to 
be  levied  on  and  sold ;  and  with  the  consent  and  advice  of  distribu- 


S.  M.  Jones's  Adm'r,  et  al.,  v.  Patsy  Shy's  Adm'r,  et  al.     891 

tees  of  the  estate  of  S.  M.  Jones,  owning  an  interest  equal  to  one- 
third  of  the  whole,  the  administrator,  who  was  also  a  distributee 
owning  an  interest  of  one-fourth,  bought  the  equity  of  redemption 
at  the  sum  of  $1,670.17;  and  to  redeem  the  land  from  the  original 
purchaser,  he  paid  to  him  out  of  assets  belonging  to  the  estate  of 
S.  M.  Jones,  the  sum  of  $2,324.30.  It  appears  that  all  the  parties 
liable  for  the  debt  were  insolvent  except  Kennedy ;  that  he  had  no 
estate  except  the  equity  of  redemption  in  question;  that  the  real 
estate  secured  was  worth  the  amount  paid  to  Forsten  and  the 
amount  bid  for  the  equity  of  redemption ;  and  that  by  the  action  of 
the  administrator  in  the  premises,  the  sum  of  $1,670.17  was  saved 
to  the  estate. 

On  a  settlement  of  his  accounts,  the  administrator  claimed  a 
credit  for  the  amount  paid  to  Forsten  to  redeem  the  land,  and  re- 
sisted being  charged  with  the  amount  of  his  bid,  claiming  that  he 
had  a  right  as  administrator  to  purchase  the  land  as  the  only  means 
of  securing  the  debt.  The  circuit  court  refused  to  allow  him  credit 
for  the  sum  paid  to  redeem  the  land,  and  charged  him  with  the 
amount  bid  for  the  equity  of  redemption;  but  it  gave  him  relief  so 
far  as  the  distributees  who  consented  to  the  purchase  were  con- 
cerned, by  charging  them  with  their  respective  distributable  shares 
of  these  two  amounts,  so  distributed  to  them  by  the  administrator, 
and  crediting  him  in  his  accounts  with  them  respectively,  but  re- 
fused him  any  relief  as  to  the  other  distributees,  some  of  whom 
were  infants,  and  of  this  he  complains. 

It  is  certainly  true  that  as  a  general  rule  an  administrator  has 
no  right  to  invest  personal  assets  in  real  estate;  but  when,  as  in 
this  case,  he  buys  real  estate  as  the  only  means  of  saving  a  debt 
due  to  the  estate,  he  should  not  be  subjected  to  personal  liability  on 
that  account,  until  it  is  made  manifest,  by  a  sale  of  the  land,  that 
loss  will  result ;  and  as  to  the  amount  of  his  bid  for  the  equity  of 
redemption,  he  certainly  ought  not,  in  equity,  to  be  charged  beyond 
what  he  may  realize  out  of  it.  To  the  extent  of  his  bid  for  the 
equity,  the  estate  has  been  benefited,  and  not  injured,  by  his  action; 
and  he  ought  not  to  have  been  charged  with  any  part  of  it,  but 
should  have  been  allowed,  as  against  those  consenting  to  the  pur- 
chase, credit  for  their  respective  shares  of  the  amount  paid  to 
Forsten;  and  then  he  should  have  been  directed  to  sell  the  land, 
and  reimburse  himself  and  those  consenting  to  the  purchase  for 
their  investment,  and  to  account  to  the  whole  of  the  distributees  for 
the  excess. 


892  Kentucky  Opinions. 

The  administrator  also  complains  that  the  court  erred  in  charg- 
ing him  with  a  note  on  Curry  for  $1,050.  The  facts  are  these:  the 
intestate,  at  his  death  held  a  note  for  that  amount  on  F.  W.  and 
John  Curry,  which  was  past  due;  after  his  qualification  the  ad- 
ministrator permitted  the  obligors  to  renew  the  note,  which  was 
made  payable  to  him,  January  i,  1869.  Both  the  obligors  were 
then  solvent,  and  remained  so  until  the  9th  of  January,  1869,  when 
they  became  insolvent,  and  the  debt  was  lost.  Had  the  note  not 
been  renewed,  suit  might  have  been  brought  on  it  at  the  Septem- 
ber term,  1869,  which  was  the  first  term  of  the  circuit  court  of  the 
county  in  which  they  resided,  after  the  administrator  qualified, 
and  the  debt  could  have  been  collected.  If  he  had  not  renewed 
the  note,  and  had  failed  to  sue  on  it  to  the  first  term  after  his  quali- 
fication, the  same  loss  would  have  been  sustained.  Did  the  mere 
fact  of  allowing  the  note  to  be  renewed,  of  itself,  render  the  ad- 
ministrator liable  for  the  loss  of  the  debt?  The  renewal  was  not 
illegal,  and  the  administrator  did  not  become  liable  as  for  a  con- 
version; if  liable  at  all,  it  must  result,  not  from  a  wrongful  con- 
version of  the  old  note,  but  from  his  failiire  to  secure  the  payment 
of  the  new  one.  In  other  words,  if  liable  at  all,  it  must  be  for 
negligence,  and  not  in  consequence  of  the  act  of  renewing  the 
note. 

We  apprehend  that  if  he  had  not  renewed  the  note,  and  had 
failed  to  sue,  he  would  not  have  been  liable  for  the  loss;  for  the 
obligors  were  apparently  solvent,  and  were  so  regarded  by  the 
witnesses ;  and  the  position  assumed,  that  the  debt  was  lost  by  the 
renewal,  admits  their  solvency  up  to  and  after  the  September  term 
of  the  court  in  1868.  As  knowledge  of  their  failing  circumstances 
has  not  been  brought  home  to  the  administrator,  we  are  bound  to 
assume  that  there  were  no  such  indications  of  approaching  in- 
solvency, prior  to  the  September  term  of  the  court,  as  would,  had 
the  note  not  been  renewed,  have  made  it  incumbent  on  the  ad- 
ministrator to  sue  on  the  peril  of  becoming  individually  liable. 
The  intestate  had  created  the  debt,  and  no  doubt  deemed  the  debtors 
entirely  solvent ;  and  there  is  no  evidence  that  they  were  any  less  re- 
sponsible at  the  time  of  the  renewal  than  at  the  time  of  the  crea- 
tion of  the  debt.  As  there  is  not  the  slightest  evidence  of  bad  faith 
or  negligence  on  the  part  of  the  administrator,  whose  act  was 
apparently  beneficial  to  the  estate,  and  was  lawful  in  itself,  we  are 
of  opinion  that  he  should  not  have  been  charged  with  the  amount 
of  the  note  after  his  qualification. 


S.  M.  Jones's  Adm'r,  et  al.,  v.  Patsy  Shy's  Adm'r,  et  al.     893 

We  think  the  court  erred  in  allowing  the  administrator  credit  for 
$114.10  paid  by  him  to  F.  G.  and  J.  H.  Metheny.  They  were  in- 
debted to  the  administrator  on  the  notes ;  and  as  both  members  of 
the  firm  were  obligors  in  the  notes,  the  administrator  should  have 
off-set  the  notes  against  the  account. 

Although  there  was  a  large  sum  of  money  drawn  out  of  the 
bank  during  the  first  two  years  by  the  administrator,  on  checks 
not  corresponding  with  debts  paid  or  amounts  distributed,  yet, 
upon  a  careful  examination  of  his  accounts,  as  the  evidence  ad- 
duced to  show  that  he  used  the  assets  in  his  hands  for  his  indi- 
vidual .purposes,  we  are  satisfied  that  the  evidence  warranted  any 
charge  against  him  for  interest  during  the  first  two  years. 

We  cannot  say  that  the  circuit  court  abused  a  sound  discretion  in 
allowing  the  administrator  five  per  cent,  commission  on  payments 
to  creditors,  and  on  disbursements  to  the  other  distributees.  Cabell 
V.  CahelVs  Adm'r,  et  aL,  i  Met.  319.  But  he  should  not  have  been 
allow^ed  commission  on  his  own  distributable  shares  or  debts  due 
to  himself.     Worseley's  Ex'r  v.  Worseley,  16  B.  Mon.  455. 

The  statute  of  limitations  is  not  available  against  the  claim  of 
B  M.  Jones  for  balance  due  him  from  his  intestate  as  administrator 
of  David  Jones.  The  settlement  of  the  6th  of  March,  i860,  was  a 
recognition  of  that  debt  by  S.  M.  Jones ;  and  whether  it  be  treated 
as  filed  on  the  day  of  its  date,  or  at  the  time  when  it  was  in  fact 
filed,  it  is  an  indebtedness  evidenced  by  record  in  the  nature  of  a 
judgment,  and  would  only  be  barred  by  fifteen  years;  and  if  this 
were  not  so,  still  the  administrator  might  retain  it.  Payne  and  Wife 
V,  Piisey,  8  Bush  564. 

The  plea  of  payment  is  unsustained  by  any  evidence  whatever; 
and  the  fact  that  the  claimant  was  administrator  of  the  debtor, 
and  could  have  suppressed  evidences  of  payment  to  himself,  found 
among  the  papers  of  the  intestate,  will  not  warrant  this  court  in 
presuming  that  the  debt  w^as  paid. 

Wherefore,  on  the  appeal  of  B.  M,  Jones  v.  Shy's  Adm'r,  the 
judgment  is  reversed,  on  both  the  original  and  cross-appeal,  and 
the  cause  is  remanded  for  further  proceedings  not  inconsistent  with 
this  opinion. 

C,  A.  and  P.  W.  Hardin,  for  appellants. 
Thomas  C.  Bell,  for  appellees. 


894  Kentucky  Opinions. 

H.  H.  Klair  v.  Maund  Asby,  et  al. 

Wills— Construction. 

A  testator  by  his  will  freed  his  slaves  and  devised  a  house  and  lot 
to  his  executors  in  trust  for  such  slaves,  and  set  apart  to  each  his  or 
her  part  of  said  house,  and  provided  if  any  of  them  should  fail  to  oc- 
cupy their  part  they  should  have  no  power  to  put  tenants  into  it,  and 
directed  "that  when  it  shall  become  difficult  for  said  slaves  and  their 
oftsprings  to  occupy  said  house  and  lot,  owing  to  the  great  increase  in 
their  number,  that  it  shall  be  advantageous  to  them  all  to  sell  said 
house  and  improvements,  my  executors  shall  do  so,  and  the  proceeds 
of  sale  shall  be  invested  for  their  benefit  in  some  way,  so  as  to  accrue 
to  them  the  greatest  permanent  benefit  The  portions  of  all  *  *  * 
to  be  equal,  the  children  of  any  that  may  have  died  taking  the  portion 
of  the  ancestor;  and  if  any  die  leaving  no  issue,  the  interest  of  that  one 
or  more  •  •  •  to  go  to  the  survivors."  It  was  held  that  the  ex- 
ecutors were  to  decide  when  a  sale  was  necessary,  and  where  the  execu- 
tors are  dead  the  chancellor,  having  all  the  interested  parties  before 
him,  has  the  power  to  do  what  the  executors  might  have  done,  and  hav- 
ing acted,  his  action  is  conclusive  until  reversed  or  set  aside,  and  that 
under  such  will  the  devisees  named  took  an  estate  in  fee,  and  hence  it 
was  not  necessary  to  name  children  of  devisees  who  were  alive  as 
parties  to  a  proceeding  to  sell. 

APPEAL  FROM  LOUISVILLE  CHANCERY  COURT. 

December  18,  1875. 

Opinion  by  Judge  Cofer: 

Calver  and  wife  conveyed  a  lot  of  ground  in  Louisville  to  Clark, 
to  be  held  by  him  in  trust  for  John  Murphy  during  life,  and  after 
his  death  for  such  person  or  persons  as  Murphy  might,  by  will  or 
otherwise,  in  writing  direct.  Murphy,  by  his  last  will,  emancipated 
his  slaves,  twelve  in  number,  and  by  a  subsequent  clause  devised 
the  lot  to  his  executors  in  trust  for  said  manumitted  slaves;  and 
after  setting  a  part  to  each  his  or  her  part  of  the  house,  and  pro- 
viding that  if  any  of  them  should  fail  to  occupy  their  part  of  said 
house  they  should  have  no  power  to  put  tenants  into  it,  he  directed 
"that  when  it  shall  become  so  difficult  for  said  slaves  and  their  off- 
springs to  occupy  said  house  and  lot,  owing  to  the  great  increase 
in  their  number,  that  it  shall  be  advantageous  to  them  all  to  sell 
said  house  and  improvements,  my  executors  shall  do  so,  and  the 
proceeds  of  sale  shall  be  reinvested  for  their  benefit  in  some  way,  so 
as  to  accrue  to  them  the  greatest  permanent  benefit.  The  portions 
of  all  said  slaves  are  to  be  equal,  the  children  of  any  that  may  have 
died  taking  the  portion  of  the  ancestor ;  and  if  any  die  leaving  no 


H.  H.  Klair  v.  Malind  Asby,  et  al.  895 

issue,  the  interest  of  that  one  or  more  so  dying  to  go  to  the  sur- 


vivors." 


Only  one  of  the  persons  nominated  as  such  qualified  as  executor, 
and  he  died  without  having  executed  the  power  of  sale.  This 
suit  in  equity  was  brought  by  one  portion  of  the  beneficiaries  against 
the  others,  and  also  against  the  heirs  at  law  of  the  deceased  exec- 
utor, to  obtain  a  sale  of  the  property.  A  sale  was  decreed,  and  the 
appellant  became  the  purchaser,  but  declined  to  execute  bonds 
according  to  the  requirements  of  the  decree;  and  upon  being  ruled 
to  do  so,  or  show  why  he  should  not,  he  responded  (i)  that  the 
chancellor  had  no  power  to  decree  the  sale,  and  that  he  would  not 
on  that  account  acquire  a  valid  title,  (2)  that  some  of  those  hav- 
ing an  interest  in  the  property  were  not  parties  to  the  suit,  and  even 
if  the  court  had  power  to  decree  the  sale,  he  would  not  acquire  the 
entire  title.  The  vice-chancllor  made  the  rule  absolute,  and  from 
that  order  this  appeal  is  prosecuted. 

It  appears  that  two  of  the  devisees  are  dead  without  surviving 
issue,  and  that  one  of  the  survivors  has  five  children;  but  those 
children  were  not  made  parties  to  this  suit.  It  also  appears  that 
three  of  the  devisees  are  married  women. 

It  is  argued  by  counsel  for  the  appellant  that  as  the  steps  re- 
quired by  the  statute  regulating  proceedings  to  obtain  judicial  sales 
of  real  estate  belonging  to  married  women  were  not  taken,  the 
judgment  and  sale  are  void;  and  they  cite  Barrett  v.  Churchill,  18 
B.  Mon.  387,  in  support  of  their  position.  This  suit  was  com- 
menced, and  judgment  for  a  sale  rendered  while  the  revised 
statutes  were  in  force.  The  case  cited  may  be  regarded  as  stating  the 
law  under  these  statutes  to  have  been  that  the  general  powers  of  the 
chancellor  to  decree  the  sale  of  the  real  estate  of  infants  were  lim- 
ited and  restricted  to  the  particular  mode  of  proceeding  therein  in- 
dicated. As  very  similar  restrictions  were  placed  upon  the  power  of 
the  chancellor  to  decree  the  sale  of  the  lands  of  married  women, 
we  think  the  same  rule  applies  to  such  proceedings  as  was  applied 
to  proceedings  to  sell  the  real  estate  of  infants,  and  that  the  chancel- 
lor now  has  no  general  power  to  decree  the  sale  of  the  lands  of  mar- 
ried women,  except  in  the  mode  pointed  out  by  the  statute. 

But  we  concur  with  the  counsel  for  the  appellees  that  the  statute 
has  no  application  to  this  case.  The  will  of  John  Murphy  created 
a  trust  in  favor  of  the  appellees,  and  directed  the  trustees  to  make 
a  sale  on  the  happening  of  a  named  event ;  and  he  gave  them  power 
to  decide  when  that  event  happened;  and  there  can  be  no  .doubt, 


896  Kentucky  Opinions. 

at  the  time  and  under  the  circumstances  under  which  the  sale  was 
decreed  by  the  chancellor,  but  that  such  sale  would  have  been  a 
valid  execution  of  the  power.  The  trustee  being  dead,  the  chancel- 
lor, who  will  not  allow  a  trust  to  fail  for  the  want  of  a  trustee, 
upon  being  applied  to,  and  having  all  the  parties  interested  before 
him,  will  himself  undertake  to  do  that  which  the  trustee,  if  living, 
might  and  ought  to  have  done.  Percy  on  Trusts,  Sees.  248,  749; 
Story's  Equity,  Sees.  1059-1061.  The  chancellor  having  power  to 
execute  the  trust,  his  decision  that  the  time  had  arrived  when  the 
testator  intended  the  property  to  be  sold,  is  conclusive,  until  re- 
versed or  set  aside,  and  the  appellant  has,  therefore,  acquired  a 
valid  title,  unless,  as  his  counsel  contends,  the  devisees  named  in 
the  will  took  an  estate  for  life,  only  with  remainder  to  their  chil- 
dren ;  for  in  that  event,  the  five  children  of  one  of  the  first  devisees 
not  being  before  the  court,  whatever  interest  they  may  have  had 
did  not  pass  under  the  decree  and  sale. 

But  we  construe  the  will  as  giving  to  the  devisees  therein  named 
interest  in  fee,  subject  to  be  defeated  by  their  death  before  a  sale 
was  made.  When  the  testator  says,  "the  children  of  any  that  may 
have  died  taking  the  portion  of  the  ancestor,"  we  understand  him 
to  refer  to  the  children  of  such  as  may  have  died  before  a  sale  of 
the  property.  After  a  sale  is  made,  the  rights  of  those  then  alive 
became  fixed  and  their  title  unconditional.  It  was  not,  therefore, 
necessary  to  make  the  children  of  a  devisee  who  was  then  living 
a  party. 

The  mere  possibility  that  Mrs.  Slaughter  may  yet  be  living  and 
claim  dower  is  too  remote  to  justify  the  appellant  in  declining  to 
accept  the  title.  Such  a  defect  of  title  would  not  warrant  the 
chancellor  in  rescinding  a  private  contract,  and  a  fortiori  will  not 
warrant  the  setting  aside  of  a  judicial  sale.  That  the  accidental 
burning  of  a  part  of  the  house  after  the  sale  was  made  will  not 
furnish  grounds  for  setting  aside  the  sale,  was  decided  in  Vance's 
Adm'r  z\  Foster  &  Ray,  9  Bush  389.  The  failure  of  the  appellant 
to  do  voluntarily,  and  in  proportion,  that  which  he  ought  to  have 
done,  can  furnish  him  with  no  ground  for  relief  which  he  would 
not  have  had  if  he  had  done  his  duty. 

Judgment  is  affirmed, 

Barr,  Goodloe,  Humphrey,  for  appellant. 

Rowan  Boone,  Bullitt  &  Bullitt,  Harris,  for  appellees. 


J.  &  S.  B.  Sachs  &  Co.  v.  W.  B.  Shelton,  et  al.         897 

J.  &  S.  B.  Sachs  &  Co.  v.  W.  B.  Shelton,  et  al. 

Partnership. 

A  partner  in  buBiness  does  not  cease  to  be  a  partner  by  merely  aban- 
doning the  partnership  business. 

Fraud  of  Partner— Right  of  Creditors. 

A  fraudulent  collusion  by  partners  with  others  to  cheat  and  hinder 
creditors  will  give  the  creditors  a  right  to  the  aid  of  a  court  of  equity; 
and  where  one  partner  made  a  mortgage  in  fraud  of  the  rights  of  the 
other  partner  and  of  the  firm  creditors,  this  gives  the  creditors  a  right 
to  come  into  court  and  set  up  the  lien  of  the  defrauded  partner  and 
have  themselves  substituted  to  whatever  lien  such  partner  had. 

APPEAL  FROM  UNION  CIRCUIT  COURT. 
December  23,  187?. 

Opinion  by  Judge  Cofer  : 

The  appellants,  J.  and  S.  B.  Sachs  &  Co.,  sought  relief  upon 
two  grounds :  ( i )  that  the  mortgage  to  Dixon  was  within  the  act 
of  1856,  and  (2)  that  the  mortgage  to  Shelton  was  actually  fraudu- 
lent. 

There  is  nothing  in  the  record  to  show  that  Young  was  insolvent 
when  he  made  the  mortgage  to  Dixon ;  but  on  the  contrary,  it  ap* 
pears  that  when  sold  under  the  attachments  in  these  cases,  the 
goods  owned  by  the  firm  of  Young  &  Green  realized  more  than 
the  indebtedness  of  the  firm  and  the  individual  debt  of  Young  to 
Dixon;  and  it  does  not  appear  that  Young  then  owed  any  other 
individual  debts.  But  insolvency  and  an  assignment  to  a  creditor 
must  concur  before  a  trust  for  the  creditors  of  the  assignor  can 
result  from  the  operation  of  the  statute.  Temple,  Barker  &  Co.  v. 
Poyntz,  et  al.,  2  Duvall  276.  That  a  debtor  at  the  time  of  making 
a  mortgage  to  secure  a  creditor  may  have  intended,  by  fraudulent 
acts  thereafter  to  be  done,  to  render  himself  insolvent,  cannot  affect 
the  rights  of  the  secured  creditor,  unless  he  had  knowledge  at  the 
time  of  accepting  the  mortgage  of  the  contemplated  fraud.  We 
must,  therefore,  hold  that  the  mortgage  to  Dixon  was  not  within 
the  statute. 

Although  there  are  some  facts  in  the  record  which  cast  a  shade 
of  suspicion  over  the  transaction  between  Young  and  Shelton,  we 
do  not  think  there  is  enough  to  overcome  the  direct  and  positive 
evidence  that  the  money  was  loaned  as  alleged  by  Shelton. 

The  appellants,  Sachs  &  Co.,  allege  in  their  petition  that  previous 

57 


898  Kentucky  Opinions. 

to  the  dates  of  the  mortgages  from  Young  to  Dixon  and  Shelton, 
Young  had  purchased,  or  otherwise  obtained,  the  entire  interest 
of  Gum  in  the  assets  of  the  firm ;  and  in  his  answer  to  all  the  pe- 
titions filed  after  the  cases  were  consolidated,  Shelton  averred  the 
same  fact.  Sachs  &  Co.  never  amended  their  petition;  and  so  far 
as  they  are  concerned,  it  must  be  taken  to  be  true  that,  before  the 
mortgages  were  made,  Green  had  parted  with  all  the  interest  he 
ever  had  in  the  firm  assets.  But  as  to  the  other  appellants,  the 
record  presents  a  somewhat  diflferent  question.  They  all  sued 
Young  and  Green,  and  alleged  that  the  goods,  the  price  of  which 
they  sued  for,  were  sold  and  delivered  to  them  as  partners,  and 
in  their  amended  petition,  which  is  unanswered,  they  alleged  that 
Green  was  a  partner,  and  as  such  had  a  lien  on  the  goods  to  secure 
the  payment  of  the  debts  of  the  firm;  and  they  asked  to  be  sub- 
stituted to  such  lien,  and  to  be  first  paid  out  of  the  mortgaged 
property. 

They  also  alleged  "that  Young,  regardless  of  the  rights  of  these 
plaintiffs  and  the  rights  of  his  co-partner.  Green,  and  with  the  in- 
tent to  cheat,  hinder  and  defraud  them  and  his  co-partner,  Green, 
out  of  their  just  rights,  made  and  executed  the  mortgages  to  Dixon 
and  Shelton,  as  set  out  in  their  original  petitions,  upon  the  partner- 
ship assets,  to  secure  said  Young's  individual  indebtedness  to  said 
Dixon  and  Shelton;  that  said  mortgages  were  made  in  contraven- 
tion of  the  rights  and  equities  of  these  plaintiffs  and  his  co-partner, 
Green,  and  the  defendants  Dixon  and  Shelton  knew  the  same." 
Treating  the  answer  of  Shelton  as  putting  the  allegation  that 
Green  had  an  interest  in  the  goods  in  issue,  as  he  does  not  deny 
that  he  was  a  partner,  and  that  the  goods  were  sold  to  Young  and 
Green  as  partners,  but  seeks  to  show  that  Green  had  ceased  to 
have  an  interest  by  selling  out  to  Young,  the  burden  was  upon  him 
to  prove  that  such  sale  had  been  made.    This  he  has  failed  to  do. 

The  only  evidence  in  the  record  which  can  be  supposed  to  have 
any  bearing  upon  that  question,  is  in  the  deposition  of  Green,  in 
which  he  says  he  repeatedly  tried  to  get  Young  to  allow  him  to 
take  care  of  the  money  in  order  to  pay  off  the  indebtedness,  but 
being  unable  to  do  so,  and  seeing  no  prospect  of  ever  being  able 
to  pay  the  debts  in  that  manner,  he  quit  the  business  about  the 
1st  of  October,  1871,  upon  no  specified  conditions.  We  cannot  con- 
clude from  this  that  Green  intended  to  abandon  all  claim  as  a 
partner,  and  that  he  thereby  surrendered  the  lien  which  the  law 
gave  for  his  indemnity  against  the  firm  liabilities.     He  is  treated 


J.  &  S.  B.  Sachs  &  Co.  v.  W.  B.  Shelton,  et  al.         899 

throughout  all  the  pleadings  by  all  the  parties  as  a  partner ;  and  he 
is  distinctly  alleged  in  the  amended  petition  to  have  been  a  partner, 
and  as  such  to  have  had  a  lien.  Shelton,  by  alleging  that  Young 
had  bought  out  his  interest,  impliedly  admits  that  he  had  an  in- 
terest as  a  partner,  and  rested  his  claim  upon  the  alleged  sale  of 
that  interest  to  Young;  and  he  cannot  now  be  heard  to  say  he 
never  was  a  partner  and  never  had  the  rights  incident  to  being  a 
partner.  That  a  partner  has  a  lien  on  the  firm  assets  to  indemnify 
him  against  the  firm  liabilities  is  conceded ;  and  it  is  also  conceded 
that  under  certain  circumstances  the  firm  creditors  may  be  sub- 
stituted to  the  lien  of  the  partners,  and  may  enforce  payment 
through  them  out  of  the  firm  assets;  but  it  is  contended  that  this 
record  does  not  present  a  state  of  case  authorizing  the  court  to 
enforce  any  lien  Green  may  have  in  favor  of  firm  creditors,  and 
we  are  referred  to  the  case  of  Jones,  et  a/.,  v.  Lusk,  et  aL,  2  Met. 
356,  as  sustaining  this  position. 

While  it  was  said  in  that  case  that  the  only  insolvency  which 
will  give  the  chancellor  jurisdiction  to  decree  priority  of  payment 
in  favor  of  partnership  creditors  is  that  which  is  ascertained  and 
established  by  a  judgment,  execution  and  return  of  no  property 
against  one  or  more  of  the  partners,  it  was  also  said,  "There  is  no 
doubt  that  a  fraudulent  collusion,  either  by  partners  or  individuals 
with  others,  for  the  purpose  of  cheating  or  of  hindering  creditors 
in  the  collection  of  their  debts,  will  give  the  creditors  a  right  to 
the  aid  of  a  court  of  equity." 

It  is  distinctly  charged  in  the  amended  petition  that  Young  made 
the  mortgages  in  fraud  of  the  rights  of  Green  and  of  the  firm  cred- 
itors, and  that  Dixon  and  Shelton  knew  it.  This,  according  to  the 
authority  quoted,  gave  the  appellants  the  rights  to  come  into  a 
court  of  equity  for  relief,  and  to  set  up  the  lien  of  Green,  and  to 
have  themselves  substituted  to  whatever  lien  he  had. 

If  Green  had  paid  the  debts  of  these  creditors,  and  had  sought 
reimbursement  out  of  the  goods  attached  in  these  cases,  there  can 
be  no  doubt  but  that  he  would  have  had  a  right  to  it;  and  as  he 
would  have  had  that  right,  the  creditors  may  assert  it  through  him. 
For  the  reasons  given,  the  judgment  is  reversed  as  to  Roach  and 
Torian,  Roach  and  Underwoods,  and  Marsh  and  Lyon,  but  is 
affirmed  as  to  J.  and  S.  B.  Sachs  &  Co.,  and  the  cause  is  remanded 
for  a  judgment  directing  the  payment  of  the  debts  of  Roach  and 
Torian,  Roach  and  Underwood,  and  Marsh  and  Lyon,  out  of  the 
proceeds  of  the  sale  of  attached  property,  if  so  much  remains  after 


9C»  Kentucky  Opinions. 

paying  the  rent  due  to  Cambun,  and  if  there  is  not  enough  to  pay 
all,  to  distribute  it  according  to  the  priority  of  their  attachments. 

C.  Adair,  /.  A.  Spalding,  A.  /.  James,  for  appellants. 
A,  Duvall,  D.  H.  Hughes,  for  appellees. 


INDEX. 


[References  are  to  Pages.] 

ABATEMENT  AND  REVIVAL 

Notice  to  representative  of  deceased  must  name  parties  and  be  served  at 
least  ten  days  before  revivor.  Margaret  Rogers  v.  Marion  Burberidge's  Com- 
mittee   611 

ACKNOWLEDGMENT. 

Certificate  of  acknowledgment  of  deed  before  unauthorized  officer  no  evi- 
dence of  execution.    George  C.  Harlan  v.  Fieldin  Hardin 587 

ACTION. 

Qaims  arising  from  injury  to  person  and  property  may  constitute  one  ac- 
tion.   Paducah  Gulf  R.  Co.  v.  B.  R  Adams 100 

Creditor  may  sue  on  claim  not  reduced  to  judgment  and  to  set  aside  fraud- 
ulent conveyance  in  one  action.  Elizabeth  Wingate  v.  Virgil  Garrison,  Eliza- 
beth Wingate  v.  George  Kale 189 

Objections  to  misjoinder  of  actions.    Sam  Johnson  v.  Qifton  Rodes...846 

ACTION  ON  ACCOUNT. 

When  petition  states  no  cause  of  action.  Sarah  Crawford  v.  W.  M. 
Combs   201 

ADVERSE  POSSESSION. 

Duty  to  prospective  purchaser  of  person  claiming  by  adverse  possession.  M. 
Leiber  v.  Mary  Haggerty ^^ . ,  .136 

Fifteen  years  undisturbed  possession  of  realty  by  actual  indosure  gives 
title.    James  H.  Maze  v.  Elijah  Clark 679 

Mere  possession  by  surface  owner,  when  not  adverse  to  coal  owner.  W.  A. 
Herrel  v.  J.  O.  Porter , 265 

Person  holding  realty  under  wife's  title  cannot  assert  adverse  possession  M 
against  wife  or  her  heirs.    John  Flynn  v.  Patrick  Carroll 656 

Possession  not  adverse  where  holder  looks  for  title  to  one  under  whom  he 
holds.    S.  Haskead  v.  A.  W.  Mallory ,„ 53 

Purchaser  aware  of  claim  of  possessor  takes  title  subject  to  defense  of  such 
claimant.    S.  Haskead  v.  A.  W.  Mallory S3 

Rights  of  claimants  tmder  different  surveys.  Chas.  Gardaer  t.  J.  H. 
Hays 76 


sot 


I 


902  Index. 

[References  are  to  Pages.] 

ADVERSE  POSSESSION— Continued. 

Rights  of  holder  of  realty  under  railroad  company  which  secured  it  by  emi- 
nent domain,  but  abandoned  it.    T.  W.  Samuels  v.  Alex.  Sayers 674 

Rights  of  husband  in  wife's  realty.    E.  J.  Overby  v.  Edna  Curry 262 


See  Principal  and  Agent. 


See  Divorce. 


AGENCY. 


ALIMONY. 


ANIMALS. 


When  city  liable  to  non-residents  for  killing  unmuzzled  dogs.  City  of  Pa- 
ducah  V.  L.  Y.  Craig 358 

APPEAL, 
See  Bill  of  Exceptions. 

Jurisdiction. 

Court  of  Appeals  has  no  jurisdiction  unless  appeal  is  taken  from  final  order. 
F.  L.  Anderson  v.  A.  A.  Grady 624 

Court  of  Appeals  no  jurisdiction  in  cases  involving  less  than  fifty  dollars. 
Richard  Adams  v.  William  Delcher  &  Son 583 

Jurisdiction  of  appeal  from  part  of  judgment  dismissing  appellant's  petition 
and  denying  petition  for  alimony.  Elizabeth  K.  Graham  v.  Samuel  R.  Gra- 
ham   738 

Right  of  Appeal. 

Appeals  taken  to  Court  of  Appeals  within  three  years  from  final  judgments 
or  orders.    John  McSwinney's  Adm'x  v.  William  G.  McCay 491 

In  ascertaining  time  for  taking  appeal  to  circuit  court,  days  of  rendering  of 
judgment  and  taking  of  appeal  counted.    L.  T.  Moore  v.  Wm.  Suerd 485 

No  appeal  can  be  taken  from  order  granting  new  trial  John  McSwinne/s 
Adm'x  V.  William  G.  McCay 491 

Order  of  court  directing  money  to  be  paid  over,  when  may  be  appealed 
from.    Susan  B.  Settle's  Adm'r  v.  Jerry  S.  Gordon 775 

Parties. 

Parties  to  cause  ordered  stricken  from  docket  are  out  of  court    Vassam  v. 

Hamilton 842 

Party  may  not  appeal  unless  prejudiced.    S.  F.  Buckley  v.  Richard  Board.  16 
Person  not  party  below  cannot  appeal.    Paul  Stockton  v.  Banlr-of  Louis- 
ville   171 

Exceptions, 

Exceptions  to  court's  action  in  giving  instructions  asked  for  by  appellees,  to 
•be  available  on  appeal,  must  be  taken  at  the  time.  Isaac  Cooper  v.  C  F. 
Thomas  t.  .  • ^ 


Index.  903 

[References  are  to  Pages.] 

APPEAL— Continued. 

Exceptions  to  evidence  not  made  grounds  for  new  trial,  not  considered  on 
appeals.    A.  Gum  v.  G.  M.  Adams  &  Co 403 

Failure  to  except  to  order  requiring  election  as  waiver  of  right  Andrew  J. 
Smith  V.  Samuel  Berry 795 

Records, 

Amendment  to  record  on  appeal,  when  it  may  be  made.  Louisville  City  R. 
Co.  V.  Ellen  D.  Saltmarsh 856 

Evidence  alleged  submitted  to  trial  court  must  be  part  of  record  to  be  con- 
sidered by  Court  of  Appeals.    William  H.  Haynes  v.  Isham  Bolin 133 

Failure  of  transcript  to  name  all  parties  ground  for  dismissal.  W.  A.  Hick- 
man V.  F.  L  Hall 641 

Judgment  for  sale  reversed  where  neither  judgment  nor  petition  describes 
land.    S.  Crabtree  &  Wife  v.  A.  &  S.  Rosenfield 125 

Pleading  denied  in  trial  court  no  part  of  record  unless  by  bill  of  exceptions. 
Sam  Johnson  v.  Clifton  Rodes 846 

Record  cannot  be  subsequently  amended  to  show  exceptions  to  court's  ac- 
tions when  none  were  taken.    Henry  Minnis  v.  Commonwealth 495 

Rejected  answer,  not  part  of  record.    W.  K  Denny  v.  Alma  Miller 144 

Review, 

After  two  concurring  verdicts,  Court  of  Appeals  will  not  reverse  judgment 
on  weight  of  evidence.    Louisville  &  Nashville  R.  Co.  v.  John  M.  May. . .  .116 

Court  of  Appeals  will  not  disturb  judgment  where  evidence  is  conflicting. 
A.  E.  Porter,  Guardian,  v.  E.  P.  Neal 112 

Final  judgment  finally  determines  parties'  rights.  T.  L.  Anderson  v.  A.  A 
Grady 624 

Judgment  below  presumed  correct  when  part  of  deposition  is  missing  and 
not  included  in  record.    John  R.  Boothe  v.  Sarah  Shrout's  Adm'r 61 

Judgment  on  forfeited  recognizance  on  conflicting  evidence  will  be  affirmed. 
E.  H.  O'Daniel  v.  Commonwealth 125 

New  trial  granted  in  actions  ex  contractu  when  evidence  clearly  preponder- 
ates against  verdict    C.  K.  Russell  v.  James  Lynn 192 

No  amendment  on  reversal.    H.  Abrams  v.  S.  UUman 8 

No  objection  to  be  made  in  Court  of  Appeals  to  misjoinder  not  objected  to 
below.    Betsey  Caldwell  v.  Marsh  Caldwell 434 

No  question  on  appeal  as  to  instructions  when  no  objections  nor  exceptions 
below.    C  K  Russell  v.  James  L3mn 192 

No  reversal  of  finding  not  palpably  wrong.  R.  M.  Mosby  v.  Hatcher, 
Perin,  et  al 10 

Power  of  Court  of  Appeals  to  give  appellee  time  to  file  plea  of  limitations. 
A.  Boyd  V.  A.  D.  Thomas / 460 

Power  of  court  over  judgment  previous  to  motion  to  set  aside  judgment. 
Wesley  Hoggins  v.  Elizabeth  EUiston 328 


904  Index. 

[References  are  to  Pages.] 
APPEAI^-Continued. 

Trial  court's  action  in  refusing  continuance  disturbed  only  for  abuse  of  dis- 
cretion.   Elizabeth  Heinrich  v.  Nicholas  Booker 811 

Where  bad  petition  has  bad  answer,  judgment  not  reversed  at  instance  of 
party  first  committing  error.    William  H.  Haynes  v.  Isham  Bolin 134 

Where  court  and  jury  have  passed  upon  conflicting  evidence,  Court  of  Ap- 
peals will  not  interfere  except  in  case  of  manifest  injustice.  William  S.  Abert 
V.W.J.  Berry 343 

Cost  and  bonds. 

Court  of  Appeals  clerk  may  tax  as  costs  copy  of  pleadings  or  exhibits  ob- 
tained by  successful  party.    Abe  Boyd  v.  C.  H.  Adams 647 

Liability  on  supersedeas  bond.    E.  Sayre  v.  James  P.  Squires 544 

Recovery  of  possession  in  suit  on  supersedeas  bond.  £.  Sa3rre  v.  James  P. 
Squires 544 

Recovery  on  bond  notwithstanding  defect  in  style.  E.  L.  Cantrill  v.  J.  C 
Poor 389 

ARBITRATION  AND  AWARD. 

Arbitration  board  empowered  to  correct  mistake  before  it  adjourns.  Ben- 
jamin Hatcher  v.  John  F.  Alford 719 

Effect  of  failure  to  demur  on  grounds  of  plaintiffs'  incapacity.  E  M.  Mar- 
shall V.  J.  M.  Meyer 17 

Failure  to  demur  as  waiver  of  right  to  object.  E.  M.  Marshall  v.  J.  M. 
Meyer 17 

Where  written  agreement  specifies  that  umpire  act  only  in  case  of  disagree- 
ment, parties  entitled  to  his  decision  where  disagreement  exists.  James  L 
Harris  v.  P.  J.  Honaker 287 

ASSAULT  AND  BATTERY. 

Indictment  for  assault  and  battery  good  without  averring  lade  of  previous 
malice.    John  R.  Bradley  v.  Commonwealth 599 

Indictment  not  defective  for  failing  to  state  that  victim  did  not  die.  Frank 
Taylor  v.  Commonwealth 401 

Propriety  of  court's  refusal  to  give  certain  instructions.  John  W.  Finnell 
V.  Simon  Van  Arsdall '. .  .416 

ASSIGNMENTS. 

No  valid  judgment  against  party  not  served  with  process  and  who  does  not 
appear.    Kanawha  &  Ohio  Coal  Co.  v.  A.  D.  Hunt 178 

Preferential  right  of  bank  over  assignor  or  creditors.  Morgan  Thomas  & 
Co.  V.  Bank  of  Rome 812 

Recovery  of  assignee  bond  on  cause  set  up  by  assignor.  Kanawha  &  Ohio 
Coal  Co.  V.  A.  D.  Hunt 178 

ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS. 

Landlord's  lien  prior  to  that  of  creditors.    A.  E.  Freeman  v.  A.  Levi 1 


Index.  905 


[References  are  to  Pages.] 
ATTACHMENT. 


See  Garnishment. 


Agreement  to  submit  to  court  question  of  sustaining  attachment  waives 
irregularity,  if  any  existed.    Leet,  Crutchfield,  et  al.,  v.  D.  C.  Robertson. .  .638 

Clerk  cannot  revise  court's  ruling  dismissing  attachment  by  issuing  second 
upon  same  record.    Henry  Farris's  Ex'r  v.  Emly  Rowland 819. 

Creditor  must  aver  justice  of  claim  in  petition  or  affidavit.  Mike  Buckley 
V.  James  Wakefield 283 

Error  to  award  attachment  order  against  company's  president  and  directors 
without  bringing  them  into  court  as  garnishees  and  ascertaining  facts  as  to 
property.    Louisville  &  Nashville  R.  Co.  v.  Luther  G.  Hall 690 

Invalidity  of  second  attachment  on  discharge  of  first.  Henry  Farris's  Ex'r 
v.  Emly  Rowland 819 

Judgment  for  sale  of  realty  attached  must  specifically  describe  property,  or 
sale  is  void.    John  Hackworth  v.  William  R.  Thompson 585 

Liability  of  plaintiff  to  purchaser  of  property  not  belonging  to  defendant. 
C.  D.  Bruce  v.  J.  D.  Carlisle 859 

Lien  created  by  writ  of  attachment  lost  when  returned  by  sheriff  without 
levy.    J.  M.  Lewis  v.  William  Richards 209 

Measure  of  damages  on  attachment  bond  where  malice  not  shown.  James 
S.  Jackson  v.  A.  J.  Graves 380 

Plaintiff  in  attachment  suit  must  show  that  he  had  subsisting  cause  of  action 
when  he  commenced  suit.    John  Mattingly  v.  F.  L.  Simms 886 

Power  of  wife  to  retain  attached  goods,  if  hers.  Isaac  Gibson  v.  Martha 
Marples  .497 

Preferential  right  of  bank  over  attaching  creditors.  Morgan,  Thomas  & 
Co.  v.  Bank  of  Rome , 812 

Purchaser  of  contract  required  to  advance  money  on  suit  of  seller's  cred- 
itors.   J.  W.  Osborne  &  King  v.  William  Hallement. 12 

Purchaser  of  partnership  property  at  receiver's  sale  holds  it  against  pur- 
chaser at  attachment  sale  against  one  partner.  John  C.  Gaddis  &  Co.  v.  T. 
T.  Ramsey 66 

Sale  of  partnership  property  under  attachment  invalid  when  already  sold  by 
receiver.    John  C.  Gaddis  &  Co.  v.  T.  T.  Ramsey 66 

Tenant  as  attachment  defendant  entitled  to  make  any  defense  available  in 
any  other  action.    H.  T.  Mattingly  v.  J.  O.  Mattingly TTJ 

When  property  is  another's  and  attachment  is  discharged  and  creditor  ap- 
peals without  making  debtor  party,  Court  of  Appeals  may  not  inquire  into  dis- 
charge of  attachment  order.    Isaac  Gibson  v.  Martha  Marples 497 

When  punitive  damages  may  be  recovered  in  suit  on  attachment  bond. 
James  S.  Jackson  v.  A.  J.  Graves 380 

Where  i^aintiff  has  to  recommence  attachment  proceedings  because  begun 
under  wrong  name,  first  action  gives  no  priority  over  those  filing  proceedings 
after  first  suit  L.  F.  Boulware  v.  J.  H.  Louden,  Willis  Henderson  v.  S.  F. 
Boulware,  Eli  Louden  v.  S.  F.  Bonlware 93 


9o6  Index. 

[References  are  to  Pages.] 
ATTORNEY  AND  CLIENT. 

Attorney  employed  to  collect  client's  debt  not  authorized  to  release  sureties. 
John  Stevens  v.  James  Chorn 679 

Attorney  no  right  to  prosecute  appeal  by  virtue  of  employment  in  circuit 
court  case.    Samuel  May  v.  A.  P.  Lacy 540 

Attorneys  liable  to  clients  where  other  attorneys  act  as  agents  for  them  and 
collect  clients'  accounts.    James  Trabue  v.  Isa  G.  Grover  &  Parker TJ 

G)urt  may  require  party  litigant  to  take  charge  of  his  defense  or  permit 
counsel  to  do  it    William  S.  Abert  v.  W.  J.  Berry 343 

Petition  against  attorneys  must  be  specific  to  authorize  recovery  for  dam- 
ages because  of  negligence.    James  Trabue  v.  Isa  G.  Grover  &  Parker Tl 

Possession  of  note  by  attorney  at  law  imports  only  authority  to  collect  M. 
Keeber  v.  Mary  Henderson 552 

Propriety  of  action  of  defense's  attorney  in  persuading  witnesses  against  de- 
fendant not  to  appear.    Leonard  Farmer  v.  Calvin  Howard 582 

What  determines  value  of  legal  services.  Huston  &  Mulligan  v.  John  R. 
Blackwell 439 

BAIL. 

Disposal  of  money  paid  to  trustee  of  jury  fund  in  lieu  of  bail  Common- 
wealth v.  M.  N.  DcPane 243 

Release  of  sureties.    J.  W.  Grimes  v.  Commonwealth 741 

Surety  still  bound  where  charge  amended,  but  no  new  nor  higher  offense 
charged.    John  N.  Crutcher  v.  Commonwealth 282 

When  bondsman  may  surrender  defendant  to  jailer.  Commonwealth  v. 
George  Norton  472 

BANKRUPTCY. 

See  Insolvency. 

Assignee  in  bankruptcy  represents  creditors  and  is  entitled  to  enforce  their 
equities.    J.  J.  Sander's  Assignee  v.  M.  Duvall 642 

Bankrupt  cannot  prosecute  appeal  from  judgment  against  him  in  circuit 
court.    Assignee  real  party  in  interest    James  Cate  v.  James  A.  Rouse. .  .776 

Circuit  court  no  jurisdiction  over  bankruptcy  trustee;  where  right  not  as- 
serted in  state  court  action  may  be  dismissed  as  to  him.  J.  V.  Conn  v.  Will- 
iam Anderson  223 

Court  to  refuse  to  judge  case  of  creditor  suing  bankrupt  until  termination 
of  bankruptcy  proceedings.    J.  V.  Conn  v.  William  Anderson 223 

Discharge,  to  avail  debtor,  must  be  pleaded.  James  Cate  v.  James  A 
Rouse n(^ 

Effect  of  discharge  from  payment   Paul  Stockton  v.  Bank  of  Louisville.  171 

Necessary  averments  in  answer  setting  up  bankruptcy.  T.  C  &  J.  New- 
combe  v.  ToUe  Holton  &  Co 825 

Promise  to  pay  debt  after  discharge  may  be  enforced.  S.  P.  Worsham's 
Adm'r  v.  Pearson  Miller 19 

State  court  not  empowered  to  set  aside  discharge  in  bankruptcy.  If  pro- 
cured by  fraud,  relief  lies  in  federal  court    S.  Littlefield  v.  James  Zanone.695 


Index.  907 

[Beferenoes  are  to  Pages.] 

BANKRUPTCY--Continued. 

When  plaintiff  may  take  personal  judgment  against  bankrupt.  J.  V.  Conn 
V.  William  Anderson 223 

BANKS  AND  BANKING. 

Where  maker  of  note  or  acceptor  of  bill  has  neither  been  discharged  nor 
become  insolvent,  petition  against  bank  for  not  binding  indorsers  states  no 
cause  of  action.    A.  G.  Talbott  v.  The  Bank  of  Kentucky 480 

BILL  OF  EXCEPTIONS. 

Court  will  not  consider  bill  of  exceptions  presented  by  appellant  before  time 
set  and  in  absence  of  appellee's  attorney.  Adams  Express  Company  v.  W.  C. 
Goodloe  182 

Court  will  not  consider  rejected  pleading  not  properly  made  part  of  record. 
A.  Cleary  v.  John  G.  Offett 691 

No  question  when  no  exceptions  have  been  taken  to  order  of  filing  of  bill 
of  exceptions.    Aetna  Ins.  Co.  v.  Mary  A.  Burns 219 

Pleading  offered  for  filing  and  rejected  not  part  of  record  except  by  bill  of 
exceptions  or  court's  order.    Elizabeth  Graham  v.  Samuel  R.  Graham 763 

Time  for  preparing  bill  not  extended  beyond  succeeding  term  of  court.  C. 
A.  McLaughlin  v.  Frank  A.  Avoid 256 

Unless  by  court's  order,  bill  of  exceptions  not  made  up  after  term.  Court's 
only  power  is  correcting  for  conformity  to  record.  Henry  Minnis  v.  Com- 
monwealth     495 

Unsigned  bill  of  exceptions  of  no  force  nor  effect,  and  not  considered  by 
Court  of  Appeals.    Robert  Dedman  v.  Samuel  B.  Scarce 393 

Where  rejected  pleading  is  not  made  part  of  record  no  question  is  presented 
to  court.    Charles  A.  Dimmit  v.  Charles  M.  Fleming 78 

Where  there  are  numerous  blanks  in  bill,  court  cannot  determine  which  in- 
structions were  given  or  which  refused.    Henry  Mays  v.  William  C.  Beatty.47 

BILLS  AND  NOTES. 

Assignor  not  released  who  at  time  of  assignment  agreed  with  holder  of  note 
to  remain  bound.    M.  P.  Hiatt  v.  Ben  F.  Field 740 

Collector  of  note  has  no  authority  to  contract  on  behalf  of  owner  to  sur- 
render to  another.    M.  Keeber  v.  Mary  Henderson 552 

Conditional  contracts  in  promissory  notes  to  pay  attorney  fees  in  case  of 
legal  process  not  enforcible.  Mount  Vernon  Banking  Co.  v.  H.  P.  Ran- 
dolph   692 

Failure  of  holder  to  sue  releases  surety.    J.  G.  Campbell  v.  Wm.  Irvine. 797 

Failure  to  set  out  material  stipulations  of  promise  and  breach  not  cured  by 
filing  note  as  part  of  petition.    James  A.  Huffaker  v.  Bank  of  Monticello.  .694 

If  no  supplemental  petition  shows  note  due  between  filing  of  amended  peti- 
tion and  judgment  there  is  no  legal  judgment.  W.  G.  Mills  v.  W.  H.  Chelf  .504 

Indorsement  a  conditional  contract  to  pay  in  case  of  default,  provided  prop- 


9o8  Index. 

[References  are  to  Pases.] 

BILLS  AND  NOTES— Continued. 

er  and  prompt  measures  be  taken  to  fix  indorser's  liability.  Nat'l  Bank  of 
Monticello  v.  J.  M.  Bryant 721 

Liability  of  indorser  on  bill  of  exchange.  James  Hart  v.  C.  P.  Mattingly.404 

Liability  of  one  signing  on  back  of  promissory  note.  J.  D.  Jones  v.  W.  O. 
Hampton's  Assignee 889 

Memorandum  at  bottom  of  note  by  maker  no  part  of  note.  J.  N.  Jones  v. 
Parmelia  Alexander 816 

Month's  delay  in  issuing  execution,  unaccounted  for,  releases  one  who  has 
assigned  note  to  plaintiff.    T.  J.  Brent  v.  Peter  Sinville 781 

Note  drawing  ten  per  cent,  draws  six  per  cent,  after  maturity.  Elizabeth 
Heinrich  v.  Nicholas  Booker 811 

Notice  by  surety  upon  holder  requiring  him  to  collect  note  amounts  to  no- 
tice to  institute  suit.    John  Stevens  v.  James  Chom 679 

Plaintiff  cannot  recover  ten  per  cent,  interest  where  agreement  not  written. 
TuUy  Choice  v.  J.  Q.  A.  King 115 

Plea  of  payment  good  which  sets  up  contemporaneous  advertising  contract. 
R.  M.  Mosby  v.  Hatcher,  Perin,  et  al 10 

Presentment  and  demand  necessary  to  make  indorser  liable  must  be  made  on 
last  day  of  grace.    Nat'l  Bank  of  Monticello  v.  J.  M.  Bryant 727 

Stipulation  in  promissory  note  for  obligors  to  pay  costs  if  collected  by  legal 
process  not  enfordble.    James  Trimble  v.  Farmers'  Bank  of  Kentucky. . .  .186 

Two  notes  may  be  declared  on  in  one  petition,  but  constitute  separate  causes 
of  action.    James  Deaner  v.  Francis  Storme 56 

Unlawful  arrangement  to  defraud  creditors  no  defense  to  suit  on  notes.  V. 
K  Hines  v.  P.  B.  McCormick 123 

BONDS. 
See  Appeals,  Attachment,  Recognizances. 

BOUNDARIES. 

In  determining  boundary  courses  and  distances  called  for  in  deed  must  yield 
to  monuments  or  local  objects  called  for  in  description.  John  W.  Kidwell  v. 
R.  T.  Houston 386 

BRIDGES. 

Plaintiff  cannot  recover  when  animal  falling  through  bridge  frightened  his 
horse.    V.  Hall  v.  The  Lebanon  and  Maysville  T.  P.  Co 476 

BROKERS. 

Attorney  in  fact  collecting  check  for  principal  not  compelled  to  pay  proceeds 
to  third  person  on  alleged  claim  of  purchase  money  due.  James  Blackwell 
v.W.D.  Hunter 168 

Co-purchaser  may  recover  commission  earned  before  he  became  associated 
with  other  purchasers.    Joseph  Gormley  v.  J.  B.  Alexander 45 


Index.  909 

[References  are  to  Pages.] 
CARRIERS. 

Carrier  held  only  for  breach  of  contract  when  passenger  leaves  train  under 
headway.    Louisville  &  Nashville  R,  Co.  v.  James  Wilkerson 671 

Carrier  liable  for  breach  of  contract  in  not  stopping  train  at  passenger's 
destination.    Louisville  &  Nashville  R.  Co.  v.  James  Wilkerson 671 

Carrier  not  liable  for  injuries  passenger  received  by  leaving  train  before  it 
stopped.    Louisville  &  Nashville  R.  Co.  v.  James  Wilkerson 671 

Duty  of  shipper  to  show  special  contract  with  carrier  unfair  and  imposed 
upon  him  without  his  understanding  it.  Adams  Express  Co.  v.  J.  J.  Guth- 
rie   454 

Where  agent  of  company  gave  more  passes  than  authorized,  stock  attend- 
ants put  off  train  by  conductor  are  entitled  to  actual,  but  not  vindictive,  dam- 
ages.   Louisville  &  Nashville  R.  Co.  v.  D.  W.  Sanders,  Same  v.  Wade 568 

CHATTEL  MORTGAGES. 

Mortgagee  entitled  to  attachment  only  when  removal  endangers  security. 
Kelley  Sutton  v.  Willis  Hancock 359 

Unrecorded  mortgage  made  in  good  faith  valid  against  all  purchasers  except 
those  from  creditor  without  notice.  Armstrong  &  Taylor  v.  William  M.  Rey- 
nolds   170 

When  sale  of  personalty  in  hands  of  bailee  fraudtdent.  L.  O.  Schmidt  & 
Co.  V.  Thomas  P.  Larder 433 

CITIES. 
See  Municipal  Corporations. 

COMPROMISE  AND  SETTLEMENT. 

Compromise  between  litigants  not  set  aside  when  not  induced  fraudulently, 
because  of  newly-discovered  facts.  Savings  Institution  of  Harrodsburg  v.  G. 
J.  Johnson 489 

Validity  of  lien  in  action  for  breach  of  covenants  not  established  by  owner's 
agreement  to  pay  as  compromise.  J.  H.  Porter's  Adm'r  v.  John  B.  Castle- 
man  20 

CONSTITUTIONAL  LAW. 

Courts  have  no  power,  where  taxes  are  imposed  for  constitutional  object. 
M.  C.  Slaughter  v.  City  of  Louisville 24 

CONTINUANCE. 

Continuance  on  ground  of  defendant's  surprise  not  allowed  where  he  was 
not  diligent  in  procuring  evidence.    Thomas  H.  Morgan  v.  Henry  Wood..  101 

CONTRACTS. 

Assignment  of  non-assignable  contract  passes  only  equitable  right,  and  as- 
signor must  be  made  party  in  suit  for  breach.  James  McGuire  v.  John  Mc- 
Guire 253 


910  Index. 

[References  are  to  Pages.] 
CONTRACTS— Continued. 

Before  getting  relief  plaintiff  must  aver  and  prove  facts  showing  his  right 
thereto.  Judgment  reversed  when  not  sustained  by  evidence.  Mississippi 
Central  R.  Co.  v.  D.  J.  Munchison 357 

Contract  incomplete  when  minds  of  contracting  parties  do  not  meet  on  es- 
sentials.   A.  B.  Dean  v.  B.  Meter 746 

Contract  to  pay  board  non- transferable  without  promisor's  consent.  James 
Sparks  v.  Charles  Hemphill 543 

Counterclaim  for  damages  should  specify  amount  James  Mellaney  v.  John 
C.  Young  165 

Defendant  must  plead  breach  of  contract  if  defense  to  action  to  collect  con- 
tract price.    James  Mellaney  v.  John  C.  Young 165 

Just  and  proper  contract,  made  in  good  faith  and  for  benefit  of  imbecile,  not 
annulled  by  court  of  equity.  William  Parrot's  Devisees  v.  Thomas  J.  Par- 
rot's Ex'r 682 

Law  will  not  enforce  illegal  contract.  Thomas  Martin  v.  G.  B.  Taylor's 
Adm'r 559 

Mental  imbecility  does  not  invalidate  contract.  Catherine  Waller's  Adm'r 
V.  William  Harrison 717 

No  recovery  upon  proof  of  several  promise  by  one  of  defendants  in  joint 
action  against  all.    Abe  Buford  v.  Taylor  &  Faulkner 98 

Party  averring  agreement  that  contract  be  void  upon  certain  conditions  must 
prove  existence  of  agreement.    S.  Y.  Craig  v.  Samuel  Brame 163 

Party  repairing  property  under  agreement  to  reimburse  himself  out  of  rents 
and  use  thereof  entitled  to  share  of  money  due  from  state  after  same  is  con- 
demned.   John  W.  Hazelrigg  v.  James  H.  McGuire 74 

Party  to  suit  must  plead  rescission  of  contract  before  entitled  to  prove  it. 
S.  Y.  Craig  v.  Samuel  Brame 163 

Person  not  required  to  accept  as  boarder  one  who  purchased  contract  made 
by  former  and  assignor.    James  Sparks  v.  Charles  Hemphill 543 

Pleading  must  aver  that  party  was  prevented  from  performing  contract  by 
adversary's  act,  before  he  can  introduce  proof  excusing  himself.  Martin  Judy 
V.  John  S.  Swinney 156 

Requisites  of  petition  in  suit  for  specific  performance.  W.  G.  Kirk  v.  John 
Reynolds  419 

To  recover  for  breach  plaintiff  must  aver  and  prove  defendant's  failure  and 
his  own  readiness  to  comply.    James  McGuire  v.  John  McGuire 253 

To  recover  on  executory  contract  plaintiff  must  show  himself  ready  and 
willing  to  perform  his  part  at  stipulated  time.  F.  B.  VanMeter  v.  R.  P. 
Pepper  827 

Two  papers  executed  by  same  parties,  at  same  time,  upon  same  subject,  con- 
strued as  one  contract.    Kentucky  Improvement  Co.  v.  Robert  D.  Barr 30 

When  deeds  of  insane  persons  may  be  set  aside.  Jarvis  Thompson  v.  Nancy 
Glinn 886 

Where  mutual  covenants  are  to  be  performed  at  same  time,  neither  party 
can  maintain  action  without  averring  tender ;  where  defendant  is  to  act  first, 
plaintiff  must  aver  readiness  to  comply.    Martin  Judy  v.  John  S.  Swinney.  156 


Index.  911 

[Referetices  are  to  Pages.] 
CONTRACTS— Continued. 

Where  purchaser  agrees  to  pay  certain  price  for  so  much  ice  as  might  be 
delivered  to  him,  agreement  upon  his  part  to  receive  and  pay  for  the  ice  is  im- 
plied.   John  P.  Cronnie  v.  Henry  Monsh 340 

Where  seller  refuses  to  make  further  deliveries  on  contract,  but  did  deliver 
on  agreement  of  third  person,  owner  of  building  under  construction,  suit  can- 
not be  maintained  against  firm  and  owner.  Abe  Buford  v.  Taylor  &  Faulk- 
ner   98 

Whole  contract  vitiated  when  part  is  vitiated  by  fraud.  W.  T.  Evans  v.  H. 
R.  Ryan .•..720 

CORPORATIONS. 

Act  of  April  9,  1873,  is  not  so  far  retroactive  as  to  interfere  with  consum- 
mated contracts.    William  K  Russell  v.  Ciunberland  &  Ohio  R.  Co 344 

Action  to  vacate  or  perfect  corporate  charter  maintained  only  by  common- 
wealth and  attorney-general.  Wm.  E.  Russell  v.  Cumberland  &  Ohio  R.  Co.344 

Holder  of  judgment  against  railroad  corporation  may  compel  company  to 
disclose  and  surrender  its  property.  Louisville  &  Nashville  R.  Co.  v.  Luther 
G.  Hall  690 

Use  of  personal  "we"  in  note  by  president  and  directors  of  corporation  im- 
parts an  individual  obligation.    D.  M.  Bowman  v.  McBrayer,  Trapnell  &  Co.  15 

Where  power  to  amend  charter  or  public  franchise  is  reserved,  legislature 
may  amend  it,  regardless  of  investments  affected  thereby.  C.  &  O.  R.  Co.  v. 
Barren  County  Court 406 

COSTS. 

Defendant's  failure  to  move  dismissal  because  no  cost  bond  is  filed  amounts 
to  waiver  of  right.  Lexington,  Louisville  &  Cincinnati  R.  Co.  v.  George  A. 
Castleman  883 

Defendant's  failure  to  move  dismissal  when  non-resident  plaintiff  gives  no 
cost  bond  waives  right.    James  C.  Townsend  v.  W.  O.  Britt. .  ^ 602 

Non-resident  plaintiff  required  to  give  bond  for  costs,  except  where  non- 
resident plaintiff  joins  resident.  James  W.  Milner  &  Wife  v.  James  Hat- 
field  536 

Statute  requiring  corporations  to  give  bond  for  costs  on  instituting  suit  does 
not  refer  to  counties.    Metcalfe  County  Court  v.  J.  G.  Scott 628 

Suit  by  corporation  dismissed  on  failure  to  give  bond  before  commencement. 
Bank  of  Columbia  v.  W.  P.  D.  Bush 762 

Waiver  of  right  to  question  failure  of  non-resident  plaintiff  to  give  bond. 
C.  A.  M.  Yarbra  v.  James  Specht 521 

COUNTIES. 

Commissioners  cannot  bind  county  to  exceed  their  appropriation  for  bridge. 
Webster  County  Court  v.  James  H.  Yates,  Same  v.  S.  B.  Wallace 531 

Legislature  empowered  to  legalize  and  validate  county  bonds  illegally  issued 
to  pay  for  railroad  stock.    John  A.  Duncan  v.  Madison  County  Court 837 


912  Index. 

[References  are  to  Pa^s.] 
COUNTIES— Continued. 

Surplus  funds  from  railroad  bond  sale  may  be  used  to  build  county  jail. 
John  A.  Duncan  v.  Madison  Coimty  Court S37 

COURTS. 

Circuit  court  has  jurisdiction  over  actions  involving  realty  titles  and  right 
to  appeal  exists  regardless  of  amount  involved.  Morg  Long  v.  C.  H.  Spill- 
man 140 


• 


CRIMINAL  LAW. 


See  Assault  and  Battery,  Forgery,  Homicide,  Indictment,  Intoxicating 
Liquors,  Larceny,  Perjury,  Weapons. 

Offenses. 

Landlord  not  implicated  when  tenant  built  fence  in  public  highway  in  his  ab- 
sence.   J.  L.  Barnard  v.  Commonwealth 761 

Amendment  of  Warrant 

Warrant  in  criminal  case  may  be  amended.  Commonwealth  v.  Robert  Van- 
meter  754. 

Defenses, 

Insanity  at  time  of  crime  a  complete  defense.  Martin  McFall  v.  Common- 
wealth   236 

EzHdence. 

Competent  for  commonwealth  to  prove  theft  took  place  in  1872  when  indict- 
ment states  1874.    Richard  Realy  v.  Commonwealth 759 

Evidence  admissible  showing  part  of  conversation  of  defendant  when  it 
amounts  to  confession.    Berry  v.  Commonwealth 856 

If  one  murder  is  charged,  evidence  of  second  murder  by  defendant  is  not 
admissible,  unlbss  part  of  res  gestae.    James  R.  Highly  v.  Conmionwealth.579 

Refusal  to  allow  defendant  to  prove  deceased's  threats  upon  his  life,  of 
which  he  knew  nothing  at  time  of  killing,  not  error.  Robert  Shipp  v.  Com- 
monwealth    652 

To  exclude  voluntary  confession  as  evidence,  it  must  appear  that  motive  of 
hope  or  fear  induced  it  and  was  sufficient  to  discredit  it  Frank  Taylor  v. 
Commonwealth 401 

Where  commonwealth  in  criminal  case  proved  part  of  conversation,  defend- 
ant has  right  to  prove  entire  conversation.  Robert  Shipp  v.  Common- 
wealth   652 

Where  defendant  is  charged  with  stealing  watch,  court  erred  in  refusing 
him  permission  to  prove  that  before  he  knew  himself  suspected,  he  tried  to 
find  owner.    Mathew  Branham  v.  Commonwealth 581 

Instructions. 
Court  should  instruct  jury  to  acquit  when  evidence  shows  defendant  was  on 


Index.  913 

[References  are  to  Pages.] 
CRIMINAL  LAW— Continued. 

verge  of  delirium  tremens  and  mentally  incapacitated.    Martin  McFall  v. 

Commonwealth  236 

Instruction  failing  to  charge  jury  with  necessity  of  believing  existence  of 
facts,  beyond  reasonable  doubt,  is  erroneous.  Noah  Rouse  v.  Common- 
wealth   606 

Trial, 

In  criminal  charge  defective  indictment  should  have  been  taken  advantage 
of  by  demurrer.    Aaron  Cox  v.  Commonwealth 479 

Arrest  of  Judgment. 

Only  failure  of  indictment  to  state  public  offense  within  court's  jurisdiction 
will  arrest  judgment.    John  R.  Bradley  v.  Commonwealth 599 

When  indictment  charges  public  offense,  motion  for  arrest  of  judgment  not 
sustained.    Aaron  Cox  v.  Commonwealth 479 

Review, 

After  conviction,  indictment  literally  construed  to  sustain  jury's  finding.  J. 
B.  Martin  v.  Commonwealth 496 

Bill  of  exceptions  to  be  signed  by  judge  and  filed  with  pleadings  as  part  of 
record.    J.  B.  Martin  v.  Commonwealth 496 

Court  of  Appeals  cannot  reverse  judgment  of  conviction  on  indictments  for 
error  in  overruling  demurrer.    William  Blackerter  v.  Commonwealth 541 

Court  of  Appeals  considers  no  objections  when  defendant  waived  them  by 
failing  to  make  exceptions  to  instructions.  Oliver  Waddle  v.  Common^ 
wealth 577 

Court  of  Appeals  has  no  power  to  reverse  criminal  cause  because  of  trial 
court's  error  in  overruling  demurrer  to  indictment.  Oliver  Waddle  v.  Com- 
monwealth   577 

No  reversal  for  error  in  instructions  to  jury  unless  all  appear  in  bill  of  ex- 
ceptions.   James  R.  Highly  v.  Commonwealth 579 

Record  of  appeal  must  be  lodged  with  clerk  of  Court  of  Appeals  within 
sixty  days  after  judgment  is  rendered.  Louisville  &  Nashville  R.  Co.  v.  Com- 
monwealth   309 

Statute  limiting  right  of  appeal  to  cases  involving  less  than  fifty  dollars  not 
applicable  to  criminal  cases.  Commonwealth  v.  David  May,  Commonwealth 
V.  Lott,  Commonwealth  v.  Brown  &  Kennedy 573 

Where  no  objection  was  made  to  omission  of  plea  to  in'dictment  before  trial 
in  circuit  court,  Court  of  Appeals  will  treat  case  as  if  made.  J.  L.  Barnard 
V.  Commonwealth 760 

DAMAGES. 

Averment  of  malice  unnecessary  to  recover  exemplary  damages.  John  W. 
Finnell  v.  Simon  Van  Arsdall 416 

Instruction  not  recognizing  fact  that,  to  recover,  negligence  must  be  proxi- 
mate cause  of  injury,  is  erroneous.    Thomas  Current  v.  Claud  Cantrill 546 

68 


9^4  Index. 

[References  are  to  Pages.] 
DAMAGES— Continued. 

Plaintiff  entitled  to  recover  cost  of  repairs  and  for  diminution  in  value  of 
property  resulting  from  injury.    Isaac  Cooper  v.  C.  F.  Thomas 368 

Plaintiff  entitled  to  recover  only  for  damages  prior  to  beginning  of  action. 
Isaac  Cooper  v.  C.  F.  Thomas .368 

Proving  injury  inflicted  purposely  or  wantonly  necessary  only  in  punitive 
damage  cases.    James  Walsh  v.  James  M.  Powers 576 

Remote  and  uncertain  damages  not  recovered  under  counterclaim  filed  in 
suit  for  purchase-money.    Daniel  Monarch  v.  John  P.  Young 232 

■ 

DEDICATION. 

Mere  reference  in  deed  of  unplatted  land  to  street  does  not  dedicate  street 
to  public  where  street  not  made  boundary.  City  of  Louisville  v.  Joseph 
Hall 327 

Where  donor  withdraws  proposal  before  town  lot  purported  to  be  dedicated 
to  public  is  accepted,  town  has  no  title.  Board  of  Councilmen  of  Uniontown 
v.  B.  C.  David 183 

DEEDS. 
See  Vendor  and  Purchaser. 

After  delivery  grantor  without  power  to  make  second  deed  on  destruction 
of  first.    Robert  McAllister  v.  James  Bryan 440 

Assignor  of  bond  warranting  certain  number  of  acres  who  joins  with  as^ 
signee  in  deed  is  liable  for  deficiency.  George  Raymond's  Ex'r  v.  J.  V.  Fro- 
man 60 

Clerk  to  have  proof  of  execution  of  deed  before  recording,  although  deeds 
some  times  admitted  without  proof,  as  ancient  writings.  Geo.  C.  Harlan  v. 
Fieldin  Hardin  588 

Deed  invalid  against  creditors  unless  legally  acknowledged,  recorded,  and 
tax  paid.    James  F.  Haydon  v.  Bamberger,  Bloom  et  al 501 

Deed  is  void  where  description  is  too  vague  to  identify  land.  T.  C.  Bid- 
well  V.  James  Fackler 97 

Deed  recorded  by  clerk  without  payment  of  tax  valid  from  date  of  record 
against  purchasers  and  creditors.  James  P.  Haydon  v.  Bamberger,  Bloom 
et  al  501 

Deficiency  in  acreage  of  land  to  be  made  good  by  persons  executing  bond  to 
convey  stated  amount.    George  Raymond's  Ex'r  v.  J.  V.  Froman 60 

Father  mentally  responsible  and  uninfluenced  may  convey  major  part  of 
realty  to  one  child.    Lula  Huff  v.  Henry  Dehaven 633 

Infirmity  of  parent  may  establish  mental  incapacity,  notwithstanding  right 
to  dispose  of  property  unequally.  W.  F.  Bramel's  Adm'r  v.  James  A, 
Bramel 614 

Purchaser  bound  by  written  contract  rather  than  verbal  agreement.  Will- 
iam Murphy  v.  John  R.  Ashby 861 

Rights  of  parties  to  conveyance  where  mistake  in  acreage  made.  C  J. 
Jewell  v.  A.  G.  Howard 107 


Index.  915 

[References  are  to  Pages.] 

DEPOSITIONS. 

When  read  in  evidence  by  party  not  securing  them.  George  Jenkins  v.  D. 
D.  Goodaker 252 

DESCENT  AND  DISTRIBUTION. 

Heirs  receiving  anything  as  distributees  bound  personally  to  that  extent  to 
pay  decedent's  debts.    Willie  Harmon  v.  John  M.  Higgins 259 

Infants'  realty  derived  from  mother  passes  to  next  of  kin  on  mother's  side. 
T.  D.  Cosby  v.  Luther  T.  Fenlock 135 

DIVORCE. 

Court  empowered  to  modify  its  order  as  to  custody  of  children  and  their 
allowances.    John  F.  Rogers  v.  Margaret  E.  Rogers 414 

Debt  satisfied  by  marriage  of  parties  not  restored  to  wife  on  divorce  granted 
to  her.    John  T.  Ratcliffe  v.  Susan  McGrewder 766 

Father's  right  to  custody  of  children  not  enforced  to  their  prejudice.  John 
F.  Rogers  v.  Margaret  E.  Rogers 414 

How  value  of  attorney's  services  for  wife  fixed.  John  F.  Rogers  v.  Mar- 
garet E.  Rogers 414 

Husband  incompetent  witness  against  wife  where  in  divorce  petition  he 
averred  her  insane.    A.  H.  Henninger  v.  Charlotte  Henninger 627 

No  alimony  to  wife  where  divorce  granted  to  husband  and  denied  to  wife. 
Elizabeth  K.  Graham  v.  Samuel  R.  Graham 738 

Property  rights  where  husband  has  made  conveyance  to  wife.  James  Han- 
Ion  V.  Joanna  Hanlon 724 

DOWER. 

Children  must  be  parties  to  action  to  award  dower  to  widow.  Emily  Nel- 
son V.  George  W.  Rose 371 

Erroneous  for  court  to  fix  value  of  widow's  interest  before  sale  of  house 
and  lot  not  susceptible  of  being  partitioned.  John  Gorman  v.  Sarah  L.  Gor- 
man   767 

Where  husband  pays  a  valuable  consideration  and  acquires  legal  title  with- 
out notice  of  lien  holder's  rights,  widow  entitled  to  dower.  George  M.  Adams 
V.  Olivia  Collier 323 

EJECTMENT. 

Beneficiaries  cannot  maintain  action  of  ejectment  to  recover  land  from 
trustee  invested  with  title.    Joana  Melton  v.  William  M.  Caigill 234 

Holder  of  title  bond  issued  eighty-eight  years  before  making  of  claim  can- 
not recover  land  from  descendant  of  owner  who  has  held  adversely  for  long 
time.    Dennis  Allen  v.  Wallan  Smith 84 

Judgment  must  specify  with  certainty  land  claimed  in  petition  for  posses- 
sion.   William  Chamberlin  v.  Dudley  Young 214 

Person  must  recover  real  estate  on  strength  of  his  own  title.  Dennis  AUen 
V.  Wallan  Smith 84 


9i6  Index. 

[References  are  to  Pmges.] 
EMINENT  DOMAIN. 

County  court  has  original  jurisdiction  in  railroad  company's  proceedings  to 
appropriate  right  of  way.    Mississippi  Central  R.  Co.  v.  John  Davis 524 

Jurisdictions  of  county  court  to  hear  exceptions  in  railroad  company's  pro- 
ceedings to  appropriate  right  of  way.  Mississippi  Central  R.  Co.  v.  John 
Davis ...524 

EQUITY. 

Chancellor  may  correct  decree  of  former  term  wrongfully  entered.  Henry 
Rudwig  V.  Jacob  Crum 193 

Failure  of  defendant  to  transfer  cause  to  equity  docket  waives  his  right  to 
trial  in  equity.    S.  Saloman  v.  P.  B.  Jones 132 

Where  defense  is  based  on  mistake  in  execution  of  note,  defendant  should 
have  cause  transferred  to  equity  docket.    S.  Saloman  v.  P.  B.  Jones 132 

ESTOPPEL. 

.  One  holding  possession  of  land  under  parol  contract  of  purchase  is  estopped 
to  deny  title  of  one  who  contracts  to  sell  to  him  and  cannot  set  up  title  ac- 
quired by  him  while  so  in  possession.    N.  B.  Bortman  v.  James  Giles 770 

EVIDENCE. 
See  Witnesses. 

Court  judicially  knows  named  county  is  in  Kentucky  and  named  town  is 
county  seat.    Abner  Minton  v.  L.  W.  Beard 630 

Declaration  of  person  in  possession  admissible  to  prove  character  of  pos- 
session.   George  C.  Harlan  v.  Fieldin  Hardin 588 

Duly  authenticated  account  books,  but  not  copies  thereof,  may  be  introduced 
in  evidence.    Alfred  Bailey's  Adm'r  v.  W.  R.  Thompson 280 

Facts  upon  which  witnesses'  opinions  as  to  mental  capacity  are  based  should 
be  given.    Alfred  Butt  v.  James  Boren 832 

Intention  of  parties  to  contract  to  be  ascertained  from  writing,  and  not 
from  parol  evidence.    D.  M.  Bowman  v.  McBrayer,  Trapnell  &  Co 15 

Oral  testimony  inadmissible  to  show  city  records  false.  C.  J.  Clark  v.  David 
Enoch 342 

Oral  testimony  inadmissible  to  show  that  unconditional  written  promise  was 
to  be  void  in  a  certain  case,  unless  fraud  in  writing  contract  alleged  and 
proved.    Grover  &  Barker  Sewing  Machine  Co.  v.  N.  A.  Gibson 361 

Parol  proof  cannot  establish  fact  required  to  be  made  matter  of  record  by 
city  council.    C.  J.  Clark  v.  David  Enoch ', .341 

Party's  statement  in  plaintiff's  absence  that  he  is  borrowing  money  from 
witness  to  pay  note  not  admissible.  Statement  not  part  of  res  gestae.  James 
Cockrell  V.  A.  B.  Hainline's  Adm'r 225 

Proof  that  original  deed  was  legally  authenticated  must  precede  reading  of 
copy.    George  C.  Harlan  v.  Fieldin  Hardin 588 

Refusal  to  permit  plaintiff  to  testify  as  to  certain  matters  in  own  behalf 
erroneous.    John  Williams  v.  A.  C.  Godsay 210 


Index.  917 

[References  are  to  Pages.] 

EXECUTION. 
See  Judicial  Sales. 

Duty  of  officer  levying  on  personalty  claimed  by  third  party  to  appoint  ap- 
praisers.   L.  B.  Hudson  v.  B.  Stone 844 

Error  in  name  of  owner  of  levied  property  does  not  render  levy  and  sale 
void.    M.  Frazer  v.  J.  C.  Merrell 33 

Execution  and  sale  void  where  land  cannot  be  identified.  M.  Frazer  v.  J. 
C.  Merrell 33 

Execution  valid  although  issued  as  returnable  at  wrong  time.  M.  Frazer  v. 
J.  C.  Merrell 33 

Land  sold  by  sheriff  must  be  accurately  described  in  return  or  levy  and  sale 
void.    R.  Stafford  v.  T.  J.  Campbell 533 

Levy  of  com  not  severed  from  ground,  how  made  and  title  of  purchaser  on 
sale  thereunder.    R.  H.  Field  v.  J.  H.  Smith 843 

When  creditors  may  refuse  to  recognize  first  execution.  James  T.  Tate  v. 
J.  A.  Elliott 806 

EXECUTORS  AND  ADMINISTRATORS. 

Administrator  cannot  legally  purchase  trust  property  when  he  is  creditor 
unless  utmost  good  faith  characterizes  entire  transaction.  Wesley  Hoggins  v. 
Elizabeth  Elliston 328 

Administrator  de  bonis  non,  neither  heir  nor  creditor,  may  not  question  au- 
thority of  former  executor  to  make  certain  expenditures.  George  McLeod's 
Adm'r  v.  Henry  Ament's  Adm'r 151 

Administrator  sued  only  in  county  where  he  qualified  and  county  where  de- 
cedent last  resided.    Samuel  Murrell  v.  Henry  Dugan's  Adm'r 864 

Administrator,  when  called  upon  by  pleading,  must  show  receipts  and  dis- 
bursements before  permitted 'to  proceed  with  cause. .  Sara  E.  Hanna's  Adm'r 
V.  Jelson  M.  Hanna's  Adm'r 153 

Court  cannot  appoint  co-administrator  after  appointing  an  administrator  de 
bonis  non.    George  McLeod's  Adm'r  v.  Henry  Ament's  Adm'r 151 

Creditor  seeking  to  recover  from  heirs  must  resort  to  equity  where  admin- 
istrator removed.    Willie  Harmon  v.  John  M.  Higgins 260 

Debt  due  from  executor  no  set-off  against  individual  debt.  ThomasL  H.  Fox 
V.  Apperson  &  Reid 233 

Each  heir  has  separate  cause  of  action  against  administrator  who  fails  to 
distribute  money.    Silas  Jones's  Heirs  v.  Nelson  Jones 285 

Executor  authorized  to  sell  realty  only  when  directed  by  will  or  personalty 
is  insufficient  to  pay  debts.  Pat  Shaugherssey  v.  William  Huffman's  Adm'r. 714 

Executor  de  son  tort  liable  to  rightful  representative.  Rights  of  creditors 
precede  heirs'  claims.    Lula  Huff  v.  Henry  Dehaven 634 

Executor  liable  if  estate  lost  by  unreasonable  delay.  Agnes  Edwards,  Ex'x, 
V.  William  S.  Edwards 661 

Executor  not  required  to  sue  for  testator's  debts  immediately  after  qualifi- 
cation.   Agnes  Edwards,  Ex'x,  v.  Wm.  S.  Edwards 661 

Executor's  surety  having  decedent's  estate  discharged  from  liability  to  dis- 
tributee five  years  after  cause  of  action  accrued.    C.  Hoskins  v.  John  Cook. 851 


9i8  Index. 

[References  are  to  Pages.] 

EXECUTORS  AND  ADMINISTRATORS— Continued. 

Heir's  creditors  may  have  his  realty  interest  in  decedent's  estate  sold  where 
personalty  does  not  suffice.    Robert  Hall  v.  Lewis  Harris's  Adm'r 831 

Interest  accruing  after  death  not  allowed  against  decedent's  estate  unless 
claim  verified  and  demand  made  of  executor  within  one  year  after  appoint- 
ment.   Frank  Griffin's  Ex'r  v.  George  H.  Barnes 783 

Interest  of  heir  indebted  to  decedent  liable  to  be  sold  before  payment  of 
such  debt.    Robert  Hall  v.  Lewis  Harris's  Adm'r 831 

Judgment  directing  realty  sales  by  executor  invalid  through  failure  to  pre- 
scribe period  for  advertisement.    James  Mattingly  v.  Nancy  Lee's  Adm'r.  .215 

Judgment  for  claim  against  estate  entered  in  foreign  state  final  unless  de- 
fense did  not  exist  in  foreign  state,  and  holder  not  required  to  establish  claim 
here.    J.  R.  Underwood,  Ex'r,  v.  John  Burton 462 

Liability  of  administrator  in  paying  insolvent  debtor's  claim  against  estate. 
S.  M.  Jones's  Adm'r  v.  Patsy  Shy's  Adm'r 890 

Order  of  sale  not  set  aside  although  heirs  named  as  defendants  become 
plaintiffs.    James  Bennett  v.  J.  D.  Smith's  Adm'r 202 

Person  cannot  release  or  give  away  claim  against  estate  to  defeat  creditors' 
rights.    Emily  Nelson  v.  George  W.  Rose 371 

Personalty  exempt  to  widow  goes,  at  her  death,  to  her  children  and  not  her 
step-children.    McClellan  Manzey  v.  William  H.  Girvin 370 

Representative  appointed  by  will  no  right  to  eject  those  in  possession.  Heirs 
to  be  parties  to  suit.    Peter  Murphy  v.  Thomas  McRoberts. 622 

Right  of  administrator  who  is  heir  to  purchase  equity  of  redemption.  S.  M. 
Jones's  Adm'r  v.  Patsy  Shy's  Adm'r 890 

Sale  directed  by  will,  when  upheld.  James  Mattingly  v.  Nancy  Lee's 
Adm'r 215 

Title  of  intestate's  personalty  vests  in  representative  who  sets  aside  for 
widow  or  infants  exempted  personalty.  Widow  not  to  recover  property  not 
set  aside.    William  M.  Green  v.  Lucindia  Wilson 636 

To  recover  from  widow  where  no  administration,  plaintiff  must  aver  person- 
alty of  deceased  of  greater  value  than  widow  had  right  to  have  set  apart. 
Mariah  Avery  v.  J.  M.  Elder 623 

Validity  of  married  woman's  claim.    James  Huffstetter  v.  Stanley  Moore. 286 

When  administrator  has  cause  of  action  against  association.  Julius  A. 
Smith's  Adm'r  v.  Louisville  Benevolent  &  Relief  Ass'n 152 

When  administrator  may  invest  personal  assets  in  realty.  S.  M.  Jones's 
Adm'r  v.  Patsy  Shy's  Adm'r 890 

When  suits  may  not  be  joined.    Alfred  Butt  v.  James  Boren 832 

Where  master's  report  is  excepted  to  and  court  overrules  exceptions  and  en- 
ters judgment,  such  judgment  is  final.  R.  L.  Garvin  v.  H,  S.  Showdy, 
Adm'r    142 

Who  may  collect  benefits  from  associations.  Julius  A.  Smith's  Adm'r  v. 
Louisville  Benevolent  &  Relief  Ass'n 152 

EXEMPLARY  DAMAGES. 
See  Damages. 


Index.  919 

[References  are  to  Pages.] 

EXEMPTIONS. 

Contract  not  to  claim  exemption  executory  and  not  binding  on  appellee. 
Mary  S.  Harrison's  Trustee  v.  John  Kuntz 688 

FALSE  PRETENSES. 

Indictment  to  allege  defendant  knew  representations  false.  J.  B.  Martin  v. 
Commonwealth  400 

FENCES. 

Agreement  to  erect  and  maintain  division  fence  runs  with  land  only  when 
written  and  legally  recorded.    B.  W.  Broaddus  v.  James  D.  Easter 537 

Verbal  agreement  to  maintain  portions  of  partition  fence  not  binding  on 
grantees  of  parties  to  agreement.    B.  W.  Broaddus  v.  James  D.  Easter. . .  .537 

FORGERY. 

Indictment  failing  to  allege  note  not  genuine  or  accused  to  know  it  to  be 
forgery  is  fatally  defective.    James  Miles  v.  Commonwealth 385 

FRAUD. 

Person  claiming  realty  on  account  of  fraud  or  mistake  of  draftsman  must 
establish  truth  of  charge.    M.  Leiber  v.  Mary  Haggerty 136 

Where  possessor  received  no  conveyance  in  order  to  protect  herself  from 
creditors,  her  realty  is  subject  to  creditors'  demands.  Morg  Long  v.  C.  H. 
Spillman    141 

FRAUDULENT  CONVEYANCES. 

Contract  with  fraudulent  intent  valid  against  those  who,  as  volunteers, 
claim  under  party  to  fraud.    John  Jones  &  Wife  v.  Alfred  Thompson 703 

Creditors  entitled  to  excess  of  purchase  money  after  payment  of  mortgage 
may  take  personal  judgment  or  have  land  sold.  William  Howell  v.  William 
S.  Edwards 63 

Creditors  entitled  to  receive  amount  in  excess  of  innocent  mortgagee's 
claim  where  deed  was  intended  to  defraud  grantor's  creditors.  William  How- 
ell V.  William  S.  Edwards • 63 

Grantee  and  grantor  not  parties  to  action  to  recover  excess  over  sum  due 
innocent  mortgagee  where  deed  was  intended  to  defraud  creditors.  William 
Howell  V.  William  S.  Edwards 63 

Innocent  mortgagee  of  land  in  conveyance  to  defraud  creditors  entitled  to 
payment  before  creditors.    William  Howell  v.  William  S.  Edwards 63 

Insolvent's  conveyance  as  gift,  made  to  defraud  creditors,  will  be  set  aside. 
Elizabeth  Wingate  v.  Virgil  Garrison,  Elizabeth  Wingate  v.  George  Kale..  189 

Realty  conveyance  by  insolvent  debtor  set  aside  when  made  late  at  night 
and  paid  for  in  long-maturing  notes.    J.  H.  Dodds  v.  Bank  of  Louisville.. 239 

Sale  of  insolvent  debtor's  property  to  creditor  for  one-third  its  value  af- 
fords some  evidence  that  sale  was  to  defeat  creditors.  Leet,  Crutchfield  et 
al.  V.  D.  C.  Robertson 638 


920  Index. 

[References  are  to  Pages.] 

FRAUDULENT  CONVEYANCES— Continued. 

Voluntary  and  fraudulent  conveyance  by  husband  to  wife,  through  another, 
void  against  creditors.    Taft  &  Son  v.  L.  Barrett  &  Wife 295 

When  mortgage  is  attacked  upon  grounds  of  fraud  by  creditor,  parties  to 
mortgage  must  show  consideration.    J.  Lieber  v.  S.  D.  Wilson 438 

GARNISHMENT. 
See  Attachment. 

After  service  of  notice,  garnishee  may  legally  pay  defendant  amount  of  in- 
debtedness above  sum  demanded  by  plaintiff  from  defendant.  Farmers'  Bank 
of  Kentucky  v.  Louisville,  Cincinnati  &  Lexington  R.  Co 755 

Averment  of  indebtedness  must  be  definite;  not  enough  that  one  "verily  be- 
lieves*' indebtedness  to  exist.    Mike  Buckley  v.  James  Wakefield 284 

Married  woman  need  not  answer  as  garnishee  at  suit  of  creditors  of  party 
to  whom  firm  of  which  she  is  a  member  is  indebted.  M.  J.  Brewer  v.  C 
Mercke 322 

Service  of  notice  on  garnishee  defendant  merely  prevents  him  from  paying 
fund  to  defendant.  Farmers'  Bank  of  Kentucky  v.  Louisville,  Cincinnati  & 
Lexington  R.  Co 755 

GAS. 

Evidence  comparing  amounts  of  gas  used  by  two  tenants  must  show  both 
used  like  number  of  burners,  burned  gas  equal  periods,  etc.  Fuller  v.  Louis- 
ville Gas  Co 469 

Plaintiff  entitled  to  recover  when  gas  meters  not  correct.  George  F.  Fuller 
V.  Louisville  Gas  Co 469 

GIFTS. 

Evidence  that  payee  once  said  note  was  to  go  to  certain  person  after  her 
death  does  not  sustain  this  person's  claim  to  ownership.:  Mary  Long,  Ex'r, 
V.  Wellington  Harlan 238 

Statement  shortly  before  death  that  deceased  wanted  certain  person  to  take 
charge  of  effects  and  that  money  was  for  boys  (meaning  grandchildren),  not 
gift  causa  mortis.    Lucy  McCame's  Adm'r  v.  Alex.  McCame's  Adm'r 554 

To  convey  title  by  gift  causa  mortis,  it  must  be  gift  in  present.  Lncy  Mc- 
Came's Adm'r  v.  Alex.  McCame's  Adm'r 554 

GUARANTY. 

Averments  needed  in  petition  to  make  out  cause  of  action  against  guaran- 
tor.   F.  B.  VanMeter  v.  R.  P.  Pepper 827 

Evidence  cannot  supply  place  of  averment  which  should  be  in  petition.  B. 
F.  VanMeter  v.  R.  P.  Pepper 862 

Guarantor  not  notified  of  acceptance  of  guaranty  within  reasonable  time 
not  bound.    R.  M.  Webb  v.  M.  B.  Mosely 212 

Nine  months  not  reasonable  time  in  which  to  notify  guarantor  of  acceptance 
of  guaranty.    R.  M.  Webb  v.  M.  B.  Mosely 212 


Index.  921 


[References  are  to  Pages.] 

GUARANTY— Continued 

Persons  signing  their  names  on  back  of  note  as  inducement  to  purchaser 
become  guarantors  thereof.    W.  £.  Snoddy  v.  William  Johnson 107 

GUARDIAN  AND  WARD. 

Duty  of  guardian  who  pays  ward's  estate  to  heirs  instead  of  alleged  cred- 
itors.   John  A.  Carter  v.  E.  H.  Norwood's  Adm'r 166 

Failure  of  guardian  or  committee  to  give  bond  renders  realty  sale  void.    R. 

G.  Bush  V.  £.  Kansh  Quissenberry 715 

.  Guardian  not  liable  for  ward's  debts  contracted  without  his  knowledge  and 
consent.    John  A.  Carter  v.  £.  H.  Norwood's  Adm'r 166 

Guardian's  purchase  of  ward's  property  at  low  price  may  be  set  aside. 
Henry  Dent  v.  £.  Benjamin 14 

In  suit  on  former  guardian's  bond  where  appointment  of  new  guardian 
averred,  court  presumes  former  guardian  resigned  or  discharged.  Richard 
Hutchinson  v.  Peter  Jett,  Guardian 160 

Irregularities  in  proceedings  to  sell  ward's  realty,  not  detrimental  to  ward, 
do  not  affect  purchaser's  title.    R.  G.  Bush  v.  £.  Kansh  Quissenberry 715 

Judgment  excessive  when  for  greater  sum  than  demanded  in  petition. 
Richard  Hutchinson  v.  Peter  Jett,  Guardian 161 

Making  exhibit  of  bond  cannot  take  place  of  averments  in  petition  when 
bond  is  foundation  of  suit.  Richard  Hutchinson  v.  Peter  Jett,  Guardian...  161 

Omission  of  averment  of  plaintiff's  majority  waived  by  answer  averring  it 
R.  D.  Geoghegan's  Ex'r  v.  John  G.  Hillson « 787 

Personal  interests  of  guardian  must  not  conflict  with  wards'  interests. 
Henry  Dent  v.  E.  Benjamin 14 

Proceeding  to  sell  infants'  land,  when  void.  L.  Smith  v.  Matilda  Wat- 
son     412 

Proceeding  to  sell  wards'  realty  is  ineffectual  to  divest  them  of  title  where 
wards  not  parties.    John  M.  Ready,  Jr.,  v.  D.  R.  Collins 149 

Suit  to  recover  on  guardian's  bond  brought  in  name  of  ward  by  next  friend 
or  guardian.    Richard  Hutchinson  v.  Peter  Jett,  Guardian 160 

Sureties'  liability  to  ward  for  money  coming  to  guardian  before  or  after 
date  of  bond.    John  A.  Stiff  v.  F.  M.  Stiff 631 

When  mother  of  wards  living  with  her  rents  their  building  and  applies  rent 
to  their  maintenance,  guardian  not  liable.    Abe  Boyd  v.  C.  H.  Adams 553 

When  good  title  not  conveyed  because  ward  not  party,  supplemental  pro- 
ceeding may  result  in  judgment  confirming  such  sale.  John  M.  Ready,  Jr., 
V.  D.  R.  Collins 149 

When  guardian  served  personal  interests  rather  than  wards',  they  may  treat 
realty  purchase  as  trust  or  may  repudiate  it.    Henry  Dent  v.  E.  Benjamin.  .14 

HIGHWAYS. 

See  Dedication,  Turnpikes  and  Toll  Roads. 

Acceptance  presumed  when  highway  repaired  by  public  and  used  publicly 
long  enough  to  perfect  title  by  prescription.  Moore  &  Mason  v.  Isaac 
Sparks  408 


922  Index. 

[References  are  to  Pages.] 

HIGHWAYS— Continued. 

Damages  awarded  to  landowners  to  be  tendered  or  paid  into  court  before 
land  can  be  taken  for  highway.    John  D.  Baker  v.  J.  W.  Tandy 701 

Dedication  of  highway  incomplete  until  accepted  by  public.  Highway  may 
be  established  without  formal  acceptance.  Moore  &  Mason  v.  Isaac  Sparks. 408 

Description  in  viewer's  report  designating  starting-point  of  highway  as  point 
six  on  surveyor's  map  is  defective  because  indefinite.  James  S.  Jacoby  v. 
James  G.  Neal 648 

Passway  may  become  public  highway  by  continuous  and  uninterrupted  use 
by  public.    Moore  &  Mason  v.  Isaac  Sparks 425 

User  of  public  highway  cannot  enjoin  obstruction  without  showing  injury 
to  himself,  and  relief  is  for  damages,  not  obstruction.  Moore  &  Mason  v. 
Isaac  Sparks  425 

Viewers'  report  must  describe  proposed  highway  by  courses  and  distances, 
fixing  beginning  and  termination  by  visible  objects.  James  S.  Jacoby  v. 
James  G.  Neal 647 

Where  obstructing  public  highway  is  charged,  question  as  to  whether  high- 
way was  public  should  be  submitted  to  jury.  J.  L.  Barnard  v.  G)mmon- 
wealth 761 

HOMESTEAD. 

Debtor  removing  from  homestead  to  another  state  cannot  claim  exemption. 
W.  L.  English's  G'd'n  v.  James  B.  English 820 

Housekeeper  whose  house  and  appurtenances  exceed  $1,000  in  value  entitled 
to  $1,000  in  money  from  sale  of  such  property.  A,  K.  Young  v.  D.  W. 
Phillips 712 

Housekeeper  with  family  residing  on  mortgaged  land  entitled  to  homestead 
exemption  unless  right  waived.    A.  K.  Young  v.  D.  W.  Phillips 712 

Husband's  land  adjacent  to  wife's  land  on  which  they  live  no  part  of  home- 
stead.   S.  Crabtree  &  Wife  v.  A.  &  S.  Rosenfield 125 

No  homestead  exemption  on  mortgaged  realty.  WilUam  McCarley's  Ex'r 
V.  J.  O.  Perkins  &  Wife 493 

One  charging  failure  of  duty  in  sheriff  who  sets  aside  homestead  as  exemp- 
tion must  establish  charge.    Belknap  &  Co.  v.  John  C.  Robinson 283 

Record  of  appeal  filed  with  Court  of  Appeals  clerk  ninety  days  after  judg- 
ment; court  may  extend  to  first  day  of  second  term  following.  Appeal 
granted  by  Court  of  Appeals  clerk  within  three  years.  William  McCarley's 
Ex'r  V.  J.  O.  Perkins  &  Wife 493 

Two  homestead  exemptions  not  claimed  in  same  realty.  P.  T.  Allim  v.  John 
Robinson's  Ex'r  478 

HOMICIDE. 
Elements. 

"Degrees  of  homicide"  defined.    Squire  Hammonds  v.  Commonwealth. .  .796 
Malice  not  implied  where  killing  done  in  sudden  heat  of  passion.    John 

Maxey  v.  Commonwealth 251 

Manslaughter  charged  where  reasonable  caution  not  used  in  ascertaining 


Index.  923 

[References  are  to  Pages.] 

HOMICIDE— Continued 

whether  gun  was  loaded    Samuel  Barnard  v.  Commonwealth 764 

Person  using  ordinary  diligence  to  ascertain  whether  pistol  was  loaded  not 
guilty.    Samuel  Barnard  v.  Commonwealth 764 

Principals, 

Guilt  of  two  principals  who  wounded  deceased  in  sudden  heat  and  passion. 
Squire  Hammonds  v.  Commonwealth 796 

Person  with  malice  aforethought  and  intent  to  kill  aiding  and  abetting  prin- 
cipal, is  as  guilty  as  principal.    Squire  Hammonds  v.  Commonwealth 796 

Defenses. 

Right  of  self-defense  where  defendant  brought  on  conflict  Ben  Botts  v. 
Commonwealth  37 

Where  there  is  no  apparent  safe  means  of  escaping  injury  or  death  at  hands 
of  adversary,  one  may  legally  slay  such  adversary.  Henry  Kramer  v.  Com- 
monwealth   428 

Evidence, 

Deceased's  threats  against  defendant's  life  admissible  as  evidence.  Henry 
Kramer  v.  Commonwealth 428 

Defendant  asserting  self-defense  may  prove  state  of  clothing  and  condition 
of  face  on  evening  after  affray.    Newton  Wainscott  v.  Commonwealth. . .  .639 

Evidence  of  bruises  on  defendant  shortly  after  offense  admissible  where 
self-defense  is  pleaded.    Henry  Kramer  v.  Commonwealth 428 

Evidence  tending  to  show  defendant's  tendency  to  resort  to  law  rather  than 
violence  and  illustrating  deceased's  character  admissible.  Henry  Kramer  v. 
Commonwealth  428 

For  adnvssibility  as  evidence,  dying  declarations^  must  be  made  under  sense 
of  impending  death.    Newton  Wainscott  v.  Commonwealth 639 

Refusal  to  admit  proof  of  conspiracy  against  defendant  after  he  had  stabbed 
deceased  not  error.    Ben  Botts  v.  Commonwealth 37 

Instructions. 

Instructions  erroneous  which  told  jury  that  defendant  was  guilty  of  mur- 
der though  deceased  had  armed  himself,  if  defendant  brought  on  conflict. 
Ben  Botts  v.  Commonwealth 37 

Instruction  in  homicide  prosecution  erroneous  where  it  failed  to  negative 
deed  done  "in  sudden  heat  and  passion."  Robert  Haywood  v.  Common- 
wealth   80 

Propriety  of  instruction  approving  defendant's  actions  in  self-defense. 
James  Harris  v.  Commonwealth 51 

Propriety  of  instruction  to  render  verdict  of  manslaughter  in  case  of  doubt 
of  degree  of  guilt.    James  Harris  v.  Commonwealth 51 

Where  one  of  three  persons  jointly  indicted  for  murder  is  guilty  as  prin- 
cipal, court  correctly  refused  to  instruct  jury  that  defendant's  guilt  or  inno- 
cence was  to  be  determined  by  that  of  other  who  struck  fatal  blow.  Ander- 
son Dudley  v.  Commonwealth 356 


924  Index. 

[References  are  to  Pages.] 

HUSBAND  AND  WIFE. 

Contracts  of  Marriage. 

Undivorced  person  cannot  make  binding  contract  to  marry  another  condi- 
tioned upon  granting  of  divorce.    Anna  Webb  v.  J.  W.  Forman 697 

Disabilities  of  Coverture, 

Conveyance  to  married  woman,  heirs,  and  assigns,  forever,  free  from  hus- 
band's control,  creates  life  estate  if  warranty  is  in  same  words.  Jordan 
Thomas  v.  S.  S.  Rowlett 578 

Joint  personal  judgment  against  several  married  women,  their  husbands, 
and  others  erroneous  as  to  married  women  and  must  be  reversed  as  to  all. 
Josephine  Clark  v.  William  Tucker 409 

Judgments  against  married  women  and  infants  not  void,  and  they  may  ap- 
peal   William  Witt  V.  May  Willison 607 

Married  woman,  not  empowered  to  act  as  feme  sole,  may  not  enter  partner- 
ship.   W.  E.  Mitchell  v.  M.  A.  Bailey  &  Co 774 

Rights  of  creditors  preferred  to  those  of  wife  who  conveyed  property  to 
husband.    Vemctta  P.  Young  v.  J.  J.  Nesbitt 730 

To  secure  accumulations,  married  woman  must,  with  husband,  pursue  stat- 
utory mode  of  trading  as  feme  sole.    Mary  F.  Strowd  v.  Stanley  &  Son. .  .625 

Vested  remainder  taken  by  woman  at  father's  death  vests  in  husband  upon 
her  marriage.    Vemetta  P.  Young  v.  J.  J  Nesbitt 730 

When  wife  is  not  authorized  to  trade  as  feme  sole,  secret  transactions  can- 
not defeat  husband's  creditors.    Mary  F.  Strowd  v.  Stanley  &  Son 625 

Where  wife  not  entitled  to  transact  separate  business  has  parted  with  money 
or  property  by  contract,  husband  must  join  her  to  recover.  W.  £.  Mitchell  v. 
M.  A.  Bailey  &  Co 774 

Woman's  coverture  cannot  avail  her  adversaries  who  were  themselves  un- 
der no  disability.    James  Huffstetter  v.  Stanley  Moore 286 

Transactions  Between  Husband  and  Wife. 

Conveyance  not  fraudulent  where  creditors  became  such  long  after  realty 
purchase  made  by  husband  and  conveyed  to  wife,  she  furnishing  most  of  pur- 
chase money.    B.  A.  Jessie  v.  Fannie  E.  Farmer 291 

Conveyance  to  wife  does  not  defeat  creditor  whose  mortgage  from  husband 
was  afterwards  made  to  secure  debt  created  before  conveyance.  Andrew 
Kinser  v.  A.  J.  Robertson 626 

Creditors  cannot  subject  land  conveyed  by  man  to  woman  before  their  mar- 
riage to  sale  to  pay  grantor's  debts.  Catherine  Waller's  Adm'r  v.  William 
Harrison  717 

Husband  may  rent  wife's  land  three  years,  receive  rents,  and  mortgage  his 
crops.    Mary  F.  Strowd  v.  Stanley  &  Son 625 

Insolvent  not  to  take  funds  due  creditors  to  improve  wife's  realty.  F. 
Henry  &  Co..  v.  B.  T.  Bennett  &  Wife 57 

When  purchaser  from  wife  may  not  buy  claims  against  husband  as  set-off 
against  purchase  money.    B.  A.  Jessie  v.  Fannie  E.  Farmer 291 

Where  no  antenuptial  contract,  husband  entitled  to  earnings  of  wife  and 
products  of  her  lands.    H.  G.  Petree  v.  G.  Terry 269 


Index.  925 

[References  are  to  Pmges.] 

HUSBAND  AND  WIFE-<:ontmuc(L 

Where  wife  executes  note  to  husband,  to  be  enforced,  chancellor  must  be 
authorized  by  contract  in  order  to  interfere  to  prevent  fraud  to  husband.  P. 
C.  Ross  V.  E.  A,  G.  Ross 272 

Wife  may  appear  in  attachment  suit  against  husband  and  make  defense  in 
his  name  for  herself  and  children.    Sarah  Crawford  v.  W.  M.  Combs 200 

Contracts  of  Married  Women, 

Assignment  of  notes  made  by  married  woman  conveys  no  title.  S.  £. 
Hardwick  v.  Daniel  Crow 394 

Borrower  may  not  credit  wife's  money  on  debt  due  him  from  husband. 
Samuel  Finley  v.  Paul  B.  Russell  &  Wife 36 

Marriage  extinguishes  debt  between  parties.  John  T.  Ratcli£Fe  v.  Susan 
McGrewder 766 

Married  woman,  after  removal  of  disabilities,  not  compelled  to  execute  con^ 
tract  made  during  coverture.    S.  £.  Hardwick  v.  Daniel  Crow 394 

Married  woman's  contract  valid  upon  persons  who  sign  it,  when  not  under 
disability.    Isom  Dodd  v.  John  Rynearson's  Adm'r 672 

Married  woman's  note  not  binding  unless  signed  by  herself  and  husband 
and  executed  for  necessaries  for  herself  or  family.  P.  C.  Ross  v.  £.  A.  G. 
Ross  272 

Only  in  exceptional  cases,  if  at  all,  may  wife's  note  be  made  foundation  for 
action  in  favor  of  husband.    P.  C.  Ross  v.  K  A.  G.  Ross 273 

Surety  on  married  woman's  note  cannot  recover.  Mary  Porter  v.  R.  H. 
Field 72 

Separate  Estate. 

Estate  of  wife  subjected  to  pay  for  necessaries  bought  by  husband  on  her 
credit    Thos.  A.  Dorsey  v.  James  H.  Sears 60S 

Goods  bought  by  wife,  where  title  vests  in  husband,  subject  to  payment  of 
his  debts.    Agnes  McLure  v.  George  Wolfe 315 

Husband  and  wife  may  mortgage  wife's  estate  for  husband's  debts.  H.  C. 
Douglass  V.  Samuel  Stone 669 

Husband's  receipt  of  goods  for  rent  of  wife's  realty  pays  rent  without  wife's 
consent    Samuel  Finley  v.  Paul  B.  Russell  &  Wife 36 

If  husband  has  possession  of  chattels  sold  to  wife  by  third  person  for  her 
separate  use,  legal  title  vests  in  him,  and  he  will  hold  it  as  her  trustee.  Agnes 
McLure  v.  George  Wolfe 315 

Married  woman  may  not  sell  or  incumber  separate  estate,  nor  estop  herself 
of  right  to  claim  it.    Jordan  Thomas  v.  S.  S.  Rowlett 578 

Married  women  not  divested  of  realty  titles  unless  legal  requirements  are 
substantially  complied  with.    L.  D.  Thompson  v.  H.  L.  W.  Bratton 609 

No  personal  judgment  rendered  against  woman  who,  after  she  ceases  to  be 
married  woman,  consents  to  sale  of  realty  to  pay  debts,  where  she  makes  no 
new  promise  to  pay  such  debts.    A.  R.  Green  v.  Wesley  Whallcy 240 

Notwithstanding  invalidity  of  wife's  title  bond, 'she  may  not  retain  property 
sold  on  bond  and  purchase  money.    M.  Ellis  v.  Mary  Baker 175 


9^  Index. 

[References  are  to  Pages.] 

HUSBAND  AND  WIFE— Continued 

When  wife's  general  estate  is  liable.  Amanda  D.  Drake  v.  Thomas 
Bradly   426 

Where  wife's  realty  is  improved  with  money  due  insolvent  husband's  cred- 
itors, rents  will  be  applied  upon  creditor's  claims.  F.  Henry  &  Co.  v.  B.  T. 
Bennett  &  Wife 57 

Wife's  right  to  claim  settlement  out  of  estate  descended  to  her  asserted  by 
original  bill  any  time  before  reduced  to  actual  possession  by  husband.  Rosa 
P.  Graves  v.  R.  C.  Harris 682 

Wife's  rights  over  interest  in  decedent's  estate.  Rosa  P.  Graves  v.  R.  C. 
Harris 683 

Wife's  secret  claim  to  land  subordinated  to  that  of  creditors.  S.  H.  Shanks 
v.  R.  M.  Pitman 5 14 

IMPROVEMENTS. 

Inequitable  to  permit  claimants  to  title  to  secure  improvements  made  by 
purchasers  who  believed  title  secure.    Joana  Melton  v.  William  M.  Caigill.235 

INDEMNITY. 

When  indemnity  bondsman  released.  James  Bridgeford  v.  Edward  W. 
Burbank 872 

INDICTMENT  AND  INFORMATION. 

Defendant  not  required  to  plead  to  indictment  not  indorsed  "a  true  bill" 
and  signed  as  prescribed  by  statute.    Commonwealth  v.  G.  W.  Wainscott..723 

Error  to  set  aside  indictment  because  of  grand  juror's  incompetency.  Com- 
monwealth v.  David  May,  Commonwealth  v.  Lott,  Commonwealth  v.  Brown 
&  Kennedy 573 

Indictment  charges  but  one  offense,  but  alternative  may  state  mode  and 
means  of  committing.    Wm.  Blackerter  v.  Commonwealth 541 

Indictment  found  and  presented  only  by  grand  jury  and  no  amendment  al- 
lowed.   Commonwealth  v.  Robert  Vanmeter 754 

Indictment  worded  substantially  like  the  statute  is  sufficient.  Robert  Hay- 
wood V.  Commonwealth 80 

Names  of  witnesses  may  be  indorsed  on  indictment  by  commonwealth's  at- 
torney after  return  by  grsLnd  jury.    Commonwealth  v.  G.  W.  Wainscott. .  .723 

INFANTS. 

Contract  made  with  infant  not  enforced  without  showing  such  contract 
beneficial  or  required  by  infant's  wants.  Sallie  Duncan  v.  Mary  E.  Dorsey.379 

Court's  jurisdiction  over  action  brought  to  protect  infant's  estate.  Thomas 
Z.  Morrow  v.  Henry  R.  Clouch 73 

Guardian  ad  litem  not  to  enter  appearance  for  others  without  service  of 
process.    C.  R.  Hoolbrook  v.  N.  W.  Duck 40 

Infant  bound  when  party  to  contract  of  settlement  where  he  fails  to  plead 
infancy.    John  E.  Pilant  v.  David  Wilson 256 


Index.  927 

[References  are  to  Pages.] 

INFANTS— Continued. 

Intervention  of  chancellor  unnecessary  for  trustee's  sale  of  minor's  realty. 
Albert  G.  Hawes  v.  Mathew  Garrison's  Devisees 261 

Judgment  for  cross-petitioner  ordering  sale  of  infant's  realty  is  erroneous 
where  no  guardian  ad  litem.  Sarah  £.  Hanna's  Adm'r  v.  Jelson  M.  Hanna's 
Adm'r 153 

Motion  to  modify  judgment  sustained  where  infants  not  legally  brought 
into  court    J.  K.  P.  Vanarsdale  v.  John  F.  Dry 54 

No  judgment  against  infants  in  proceedings  to  sell  land  where  no  guardian 
ad  litem  appointed.    Elizabeth  Mark  v.  William  Little 187 

Purchaser  of  minors'  realty,  sold  by  trustee,  need  not  see  to  application  of 
purchase  money.    Albert  G.  Hawes  v.  Mathew  Garrison's  Devisees 261 

Sale  of  infants'  interests  must  be  according  to  statute.  T.  D.  G>sby  v. 
Luther  T.  Fenlock 135 

Technical  defense  not  allowed  to  prevent  infants  from  being  deprived  of 
rights.    Thomas  Z.  Morrow  v.  Henry  R.  Clouch 73 

INJUNCTION. 

Court's  action  in  making  final  disposition  of  order  of  injunction  by  perpet- 
uating it  or  determining  issues  involved  in  action  erroneous  when  cause  is  sub- 
mitted on  motion  to  dissolve  injunction.  Ellen  Martin  v.  George  W.  Mar- 
tin   308 

Damages  caused  by  delay  in  selling  land  recovered  on  bond  given  for  in- 
junction against  sale  only  where  assessed  when  injunction  was  dissolved.  J. 
Boone  v.  J.  M.  B.  Hardwicke's  Adm'r,  J.  Boone  v.  T.  C.  Barn's  Adm'r 456 

Jury  may  assess  damages  sustained  by  reason  of  injuiKtion.  B.  B.  Wyatt 
v.  W.  D.  Tinsley 59 

Requirement  in  injunction  bond  that  obligors  satisfy  modified  judgment  sur- 
plusage, only  obligation  being  to  pay  costs  and  damages  where  injunction  dis- 
solved. J.  Boone  v.  J.  N.  B.  Hardwicke's  Adm'r,  J.  Boone  v.  T.  E.  Barn's 
Adm'r 456 

When  money  enjoined,  rate  of  damages  not  over  ten  per  cent.  B.  B.  Wyatt 
v.  W.  D.  Tinsley 59 

INSANE  PERSONS. 

Committee  of  lunatic  serving  as  a  commissioner  to  sell  her  property  is  liable 
for  money  he  collected  therefor.  Marion  Burbridge  v.  H.  W.  Varnon's  Ex'r.87 

Error  to  render  judgment  against  insane  defendant  without  committee  or 
guardian!  where  evidence  fails  to  show  service  of  process.  Mary  C.  Paul  v. 
Hugh  W.  Paul 810 

Lunatic's  deed  susceptible  of  confirmation  by  lunatic  when  restored  to  sanity. 
John  Sanderson  &  Wife  v.  Susan  E.  Hays 353 

Surety  for  lunatic's  committee  who  served  as  commissioner  to  sell  her  prop- 
erty liable  on  bond  when  it  was  committee's  duty  to  collect  money.  Marion 
Burbridge  v.  H.  W.  Varnon's  Ex'r 87 


ps&  Indbx. 

[Baferences  are  to  Pages.] 

INSOLVENCY. 

Proceeds  of  sale  made  by  insolvent  debtor  and  surety  to  prefer  debts  sub- 
ject to  payment  of  general  creditors.    D.  M.  Griffith  v.  LaFayette  Beacker.246 

Sale  made  to  innocent  purchaser  to  prefer  creditor  not  set  aside  but  pro- 
ceeds applied  to  pay  all  creditors.    D.  M.  Griffith  v.  Lafayette  Beacker. . .  .246 

Where  case  is  not  referred  to  master,  court  will  not  investigate  items  in- 
volved in  accounts  against  insolvent  estate.  Harrison  &  Shelby  v.  W.  O.' 
Barksdale's  Adm'x  278 

INSTRUCTIONS. 
See  Trial. 

INSURANCE. 

Company  liable  on  policy  made  payable  to  landlord  and  tenant  when  agent 
understood  facts  of  ownership  and  amended  policy  to  make  it  payable  to  both. 
James  Bridgford  v.  Manhattan  Fire  Insurance  Co 294 

Data  for  determining  terms  of  insurance  contract.  E.  C  Curd  v.  Common- 
wealth Mutual  Life  Ins.  Co 815 

Husband's  creditors  no  cause  against  widow  receiving  money  on  policy  made 
payable  to  her,  purchased  by  husband.    Elizabeth  Smith  v.  R.  C.  Eubank.. 780 

In  suit  to  collect  insurance  money,  what  must  be  shown  by  plaintiff.  South- 
em  Mutual  Life  Ins.  Co.  v.  Eliza  J.  Downs 879 

Insurance  company  bound  to  pay  when  evidence  shows  representations  sub- 
stantially correct  and  true.  Mississippi  Valley  Life  Ins.  Co.  v.  R.  H.  Mor- 
ton   866 

Insured  cannot  collect  on  policy  when  it  specifies  non-liability  where  build- 
ing is  vacant    iEtna  Ins.  Co.  v.  Mary  A.  Burns 219 

No  recovery  on  policy  providing  that  failure  to  pay  premium  renders  it 
void,  when  such  failure  occurred.  Southern  Mutual  Life  Ins.  Co.  v.  Eliza 
J.  Downs 879 

Right  of  company  to  waive  payment  of  premium  when  due  or  to  terminate 
contract  by  failure  to  pay.  E.  C.  Curd  v.  Commonwealth  Mutual  Life  Ins. 
Co 815 

Stipulation  in  policy  to  submit  differences  to  arbitration  does  not  require 
that  any  other  question  concerning  recovery  be  submitted  to  arbitration. 
Royal  Ins.  Co.  v.  Frank  Waters 772 

INTEREST. 

See  Usury. 

Plaintiff  recovering  on  debt  after  bankruptcy  discharge  entitled  to  interest 
S.  P.  Worsham's  AdmV  v.  Pearson  Miller 19 

Ten  per  cent,  interest-bearing  note  will  draw  only  six  per  cent  after  due. 
Frank  Griffin's  Ex*r  v.  George  H.  Barnes 783 

INTOXICATING  LIQUORS. 

Constitutional  provision  for  holding  election  between  6  A.  m  and  7  p.  m.  not 
violated  when  polls  are  opened  after  six  o'clock.  Peter  Cochran  v.  J.  H. 
Hays 503 


iNiex.  929 

[Referenoet  axe  to  Pages.] 

INTOXICATING  LIQUORS— Continued 

Defendant  charged  with  illegal  sale  of  intoxicants  not  permitted  to  prove 
employer's  belief  in  legality  of  sale.    Henry  Minnis  v.  Commonwealth.... 495 

Druggist  may  make  and  sell  alcoholic  medicinal  compounds,  made  for  med- 
ical purposes  and  not  to  evade  law.  Smithers  &  Higdon  v.  Commonwealth .  574 

Local  option  election  not  contested  under  general  election  law.  Peter  Coch- 
ran V.  J.  H.  Hays 503 

Necessary  to  name  intoxicated  persons  to  whom  liquors  were  sold.  Com- 
monwealth V.  Mina  Burschulz 471 

Necessary  to  name  minors  purchasing  liquors  and  aver  sale  made  without 
written  direction  of  parent  or  guardian.  Commonwealth  v.  Mina  Burschulz. 471 

Physician  may  sell  intoxicants  for  medical  purposes  only.  William  Mc- 
Glashen  v.  Commonwealth 237 

Physician  subject  to  legal  penalty  for  selling  intoxicating  liquors.  William 
McGlashen  v.  Commonwealth 237 

Proprietor  who  saw  bartender  violate  law  in  sale  is  equally  guilty.  Com- 
monwealth V.  M.  D.  Hardin 724 

JUDGMENT. 

Chancery  courts  may  set  off  one  judgment  against  another  to  avoid  injustice 
and  wrong.    John  H.  Richardson  v.  John  P.  Richardson 203 

Circuit  court  cannot  enjoin  collection  of  judgments  rendered  by  justice  of 
peace.    John  H.  Richardson  v.  John  P.  Richardson 203 

"Clerical  misprision"  defined.    W.  R.  Covington  v.  Mary  B.  Scott 138 

Erroneous  judgment  not  corrected  by  motion,  but  appealed  from.  W.  R. 
Covington  v.  Mary  B.  Scott 138 

Error  of  clerk  in  entering  judgment  corrected  only  by  what  may  be  found 
in  record.    R.  H.  Field  v.  J.  F.  Smith 821 

Judgment  for  realty  sale  should  accurately  describe  land.  Elizabeth  Mark 
v.  William  Little 187 

Judgment  invalid  when  providing  for  plaintiffs  recovery  in  "legal  tender 
notes/'  but  failing  to  define  such  notes.  D.  R.  Burbanks,  Jr.,  Adm'r,  v.  D. 
R.  Burbanks,  Sr.,  Adm'r 113 

Judgment  on  amended  petition  in  less  than  twenty  days  erroneous.  James 
Deaner  v.  Francis  Storme 56 

Judgment  ordering  sale  must  describe  realty  and  direct  manner  of  sale. 
Morg  Long  v.  C.  H.  Spillman 141 

Judgment  that  plaintiffs  are  entitled  to  recover  not  judgment  in  personam. 
John  W.  Zeigler  &  Wife  v.  John  W.  Means 221 

Judgment  without  notice  or  defendant's  appearance  is  void.  William  Stone 
Albert  v.  A.  Harris 619 

Judgment  without  service  of  process  and  appearance  by  defendant  is  void. 
Reuben  Gill  v.  Milton  Farmer 770 

No  default  against  persons  named  only  in  body  of  complaint.  Wm.  Pol- 
lard's Heirs  v.  Jas.  Morrison's  Adm'r 43 

No  defense  can  be  interposed  to  suit  brought  in  Kentucky  upon  judgment 

59 


930  Index. 

[Beferences  are  to  Pages.] 

JUDGMENT- Continued. 

rendered  in  Ohio  which  would  have  constituted  a  defense  in  original  action  in 
Ohio.    William  Tilman  v.  Abner  Carey 336 

No  injunction  against  collection  of  judgment  on  defense  of  which  defend- 
ant knew  at  time  of  suit    W.  H.  Roberts  v.  D.  F.  Curie 123 

Petition  must  aver  judgment  sued  on  unpaid  at  time  suit  was  brought  W. 
J.  Walker  v.  G.  W.  Craddock 281 

Petition  to  invalidate  judgment  in  foreign  state  must  aver  lack  of  jurisdic- 
tion in  foreign  court.  Pleading  of  conclusions  insufficient  O.  C.  Bowles  v. 
John  N.  Watkins " 207 

Relief  against  judgment  three  years  after  entry  must  be  by  new  action. 
Sam  Johnson  v.  Clifton  Rodes 846 

To  vitiate  judgment,  fraud  must  relate  to  manner  of  obtaining  and  not  to 
its  foundation.    John  T.  White  v.  G.  Hayden's  Adm'r 498 

Where  plaintiff's  right  to  hold  bank  liable  for  conversion  is  adjudicated  in 
federal  court  and  there  is  judgment  against  him,  he  cannot  have  same  issue 
adjudicated  in  state  court.    William  Davenport  v.  James  Underwood 665 

JUDICIAL  NOTICE. 

See  Evidence. 

JUDICIAL  SALES. 
See  Execution. 

Commissioner  selling  land  cannot  receive  more  than  ten  dollars  per  tract. 
Thomas  H.  Fox  v.  Apperson  &  Reid 233 

Duty  of  purchaser  at  judicial  sale  of  realty  to  investigate  title  and  responsi- 
bility for  failure.    Aug.  Wehrley  v.  R.  H.  Courtney,  Trustee 523 

Exceptions  to  judicial  sale,  regularly  conducted  not  sustained  on  ground  that 
property  would  bring  higher  price  if  offered  again.  E.  C.  &  H.  A.  Ptingst  v. 
Thomas  E.  Wilson,  Ex'r 217 

Execution  and  judgment  on  which  sheriff's  deed  was  issued  must  be  shown, 
or  bond  ^f  equal  dignity  of  judgment  by  judicial  sanction.  Levi  Fortney  v. 
Jesse  Moore 288 

Failure  to  direct  manner  of  advertising  reverses  judgment  for  realty  sale. 
J.  G.  Arnold  v.  Peter  Smith 494 

Interested  bidder  not  attending  nor  bidding  cannot  complain  of  sale  price. 
E.  C.  &  H.  A.  Pfingst  V.  Thomas  E.  Wilson,  Ex'r 217 

Judgment  defective  through  failure  to  specify  amount  of  money.  Court 
not  to  amend  such  judgment  after  parties  out  of  court.  Tully  Choice  v.  J. 
Q.  A.  King 115 

Judgment  ordering  realty  sale  must  descril^e  land  so  that  reference  to  ex- 
hibits and  papers  unnecessary.    A.  R.  Greene  v.  Wesley  Whalley 241 

Judgment  ordering  realty  sale  reversed  for  failure  to  describe  realty.  Mrs. 
H.  Clay  Fox  v.  Samuel  Tipton 413 

Judgment  reversed  where  description  does  not  enable  master  to  find  land 
without  reference  to  title  papers.    Harriet  Vaugh  v.  J.  H.  Neeley 390 

Judgment  should  direct  manner  and  place  of  sale  and  period  for  advertis- 


Index.  931 

[Referencee  are  to  Pages.] 

JUDICIAL  SALES— Continued. 

ing.  Several  non-adjoining  tracts  to  be  sold  separately.  A.  M.  Hume  v.  P. 
Guilfoylc 487 

Judicial  sale  of  realty  not  set  aside  because  persons  agreed  to  unite  in  pur- 
chase, unless  with  fraudulent  intent.  Thomas  Montague  v.  Silas  Wolveston, 
Thomas  Foreman  v.  Grinstead-  &  Bradley 659 

Land  sold  to  satisfy  debt  to  be  adequately  described.  Judgment  for  plaintiff 
on  defective  petition  reversed.    Samuel  Mills  v.  William  R.  Early 110 

Offer  of  higher  price  after  judicial  sale  no  grounds  for  setting  sale  aside. 
Thomas  Montague  v.  Silas  Wolveston,  Thomas  Foreman  v.  Grimestead  & 
Bradley 659 

Owner  of  property  levied  upon  by  mistake  entitled  to  damages  com- 
mensurate with  value  of  property,  plus  interest  thereon  for  time  deprived. 
H.  B.  Phillips  V.  J.  D.  Claybrook 801 

Purchaser  not  compelled  to  accept  conveyance  unless  conforming  substan- 
tially to  description  by  which  he  was  induced  to  bid  J.  M.  Delph  v.  A.  B. 
Hewitt 847 

Purchaser  of  realty  subject  to  mortgage  cannot  have  the  sale  set  aside  eight 
years  after  possession  by  innocent  purchaser  at  foreclosure  sale.  Thomas 
Greer  v.  John  Warburton's  Ex'r 362 

Sheriff  may  not  levy  upon  and  sell  timber  being  used  by  railroad  in  repair- 
ing bridge.    Ben  K.  Sleet  v.  Louisville,  Cincinnati  &  Lexington  R.  Co 447 

When  purchasers  did  not  receive  what  they  bought  because  of  erroneous  de- 
scriptions, error  corrected  upon  supplemental  petition.  Henry  Rudwig  v. 
Jacob  Crum 192 

Where  commissioner  is  to  sell  several  tracts  of  land  court  should  order  them 
sold  separately.    Thomas  H.  Fox  v.  Apperson  &  Reid 233 

Where  commissioner  takes  bond  for  part  of  purchase  money,  but  does  not 
report  to  court,  title  secured  through  execution  and  sale  by  sheriff  is  not  good. 
Levi  Fortney  v.  Jesse  Moore 288 

Where  purchaser  breaks  agreement  to  extend  redemption  time,  and  secures 
deed,  owner  may  set  deed  aside  and  redeem  within  agreed  time.  V.  D.  Mc- 
Manama  v.  Isabella  Campbell 586 

JUSTICES  OF  THE  PEACE. 

Circuit  court  not  to  consider  appeal  from  justice's  court  where  only  $11.60 
involved.    A.  W.  Routt's  Adm'r  v.  W.  W.  Berry 420 

Defendant  who  appeared  and  defended  below  waives  advantage  for  want  of 
proper  service  of  writ.    Basil  Bailey  v.  Milton  Lykins 205 

LANDLORD  AND  TENANT. 
Leases. 

Tenant  making  extra  payments  to  one  of  three  landlords  to  procure  his  sig- 
nature to  lease  cannot  recover  such  extra  rent.  John  B.  Davis  v.  John  Gault, 
Sr,  Adm'r  28 

Tenant's  written  lease  on  wife's  realty  executed  by  husband  and  wife  en- 
titles tenant  to  hold  against  lessor  and  vendee.    Such  tenant  can,  before  lease 


932  Index. 

[References  are  to  Pages.] 

LANDLORD  AND  TENANT— Continued. 

expires,  hold  against  heir.    R.  S.  Vaughan's  G'd*n  v.  J.  L.  Burkhart,  Same  v. 

City  of    Louisville 516 

Where  lease  stipulates  that  arbitrators,  or,  in  case  of  disagreement,  assessor 
fix  valuation  of  realty,  assessor's  valuation  holds  when  arbitrators  disagree. 
Owen  and  Mills  v.  £.  P.  Humphrey • 324 

Valuation, 

Party  to  contract  stipulating  that  valuation  be  fixed  by  arbitrators  to  stand 
by  contract  where  no  fraud  charged.    Owen  and  Mills  v.  E.  P.  Humphrey. 324 

Improvements. 

Purchaser  succeeds  only  to  rights  of  tenant  who  made  improvements  and 
cannot  claim  by  adverse  possession.    John  Hanson  v.  E.  W.  Lea 162 

Tenant  taking  store  room  subject  to  contract  between  landlord  and  person 
making  improvements  not  entitled  to  possession  until  completion  of  repairs 
unless  delay  caused  by  landlord.    B.  F.  Turner  v.  J.  W.  Martin 158 

Repairs, 

Landlord  not  required  to  make  repairs  unless  he  has  expressly  agreed  to  do 
so.    Louisville  Soap  Mfg.  Co.  v.  William  A.  Richardson 437 

Landlord's  failure  to  make  repairs  as  agreed  renders  him  liable  to  tenant  for 
damages  sustained  by  reason  thereof.  Kentucky  Improvement  Co.  v.  Robert 
D.  Barr  30 

m 

Landlord's  Lien. 

Bona  fide  purchaser  of  produce,  where  landlord's  lien  exists,  must  recognize 
lien.    John  Barrett  v.  John  Mossie *. 528 

Landlord's  lien  on  produce  of  premises  rented  under  certain  conditions  lost 
on  removal  of  property  therefrom.    William  Bell  v.  W.  W.  Bryant 310 

Landlord's  lien  on  tenant's  fixtures,  etc.,  owned  by  him  after  possession, 
cannot  be  for  more  than  one  years  rent  nor  rent  due  for  more  than  one  hun- 
dred twenty  days.    Irvine  T.  Green  v.  D.  T.  Smith's  Trustee 673 

Mechanics^  Liens. 

Failure  for  more  than  one  year  after  completion  of  work  to  make  landlord 
defendant  in  foreclosing  mechanic's  lien  for  tenant's  improvements  bars  re- 
covery,   Walter  &  Struck  v.  R.  W.  Wooley 337 

Landlord  must  be  defendant  in  action  to  foreclose  mechanic's  lien  against 

reali>  for  tenant's  improvements.    Walter  &  Struck  v.  R.  W.  Wooley 337 

Rent. 

Landlord  cannot  recover  for  term  between  eviction  and  termination  of  lease. 
R.  S.  Vaughan's  G'd'n  v.  J.  L.  Burkhart,  Same  v.  City  of  Louisville 516 

Landlord  purchasing  goods  of  tenant  may  deduct  amount  of  rent  due.  A. 
£.  Freeman  v.  A.  Levi 1 

Right  of  attachment  depends  on  whether  landlord  has  reasonable  grounds  to 
believe  debt  lost  without  attachment.    H.  T.  Mattingly  v.  J.  O.  Mattingly.. 777 

Where  lessee  and  others  covenant  in  two-year  lease  that  lessee  will  pay 
rent  for  first  year,  others  not  liable  for  defalcation  during  second  year.  John 
Wallace  v.  William  Newell 753 


Index.  933 

[References  are  to  PageB.] 

LANDLORD  AND  TENANT— Continued. 

Sub-Lessees, 

Where  tenant  sub-leases  premises  with  landlord's  consent,  landlord  does 
not  release  tenant  from  liability  nor  accept  sub-lessee  as  tenant  James  £. 
Brown  v.  G.  Schuler 311 

Housekeeper's  Exemption, 

Tenant's  pleading  of  housekeeper's  exemption  should  state  number  and 
quantity  of  each  character  of  personalty  he  owned  at  seizure  under  distress 
warrant    Mary  S.  Harrison's  Trustee  v.  John  Kuntz 688 

When  Relation  Ceases, 

Where  tenant  becomes  purchaser,  relation  of  landlord  and  tenant  ceases.  R. 
S.  Vaughan's  G'd'n  v.  J.  L.  Burkhart,  Same  v.  City  of  Louisville 517 

Surrender  of  Possession. 

Lessor  not  to  obtain  advantage  from  own  wrong  in  not  surrendering  pos- 
session according  to  agreement.    H.  D.  Owens  v.  Michael  Smith 109 

LARCENY. 

Defendant  not  guilty  if  property  was  owned  by  him.  P.  P.  &  J.  O.  Martin 
V.  Commonwealth 853 

Intent  to  steal  must  exist  at  time  of  taking  possession  to  render  one  guilty 
of  larceny.    Daniel  Stevens  v.  Commonwealth 800 

LIBEL  AND  SLANDER. 

Answer  should  aver  that  repeating  slanderous  words  was  without  malice. 
W.  K.  Denny  V.  Alma  Miller 144 

Defendant  need  not  prove  truthfulness  of  words  beyond  reasonable  doubt. 
P.  C.  Ross  V.  John  Cunningham 793 

Erroneous  instructions  in  slander  suit  when  defense  is  justification.  P.  C. 
Ross  V.  John  Cunningham ; 793 

Error  for  court  to  exclude  evidence  tending  to  show  that  defendant  had  no 
intention  to  injure  plaintiff.    W.  K.  Denny  v.  Alma  Miller 144 

Injury  to  character  is  gravamen  of  slander  action  and  goodness  of  charac- 
ter may  be  proven  in  aggravation.    W.  K  Denny  v.  Alma  Miller 144 

Instructing  jury  to  find  for  defendant  if  words  were  spoken  in  jest  is  cor- 
rect   J.  W.  Croan  v.  J.  C.  Crenshaw 745 

Malice  implied  from  speaking  words  importing  slander  falsely,  unless  spoken 
in  performance  of  public  or  private  duty.    Milton  Williams  v.  Agnes  Noel. 834 

Malice  indispensable  in  slander.    J.  W.  Croan  v.  J.  C.  Crenshaw 745 

Where  words  are  actionable,  malice  may  be  presumed  from  falsity,  but  pre- 
sumption may  be  rebutted  by  evidence.    J.  W.  Croan  v.  J.  C.  Crenshaw. . .  .745 

Witnesses  not  to  give  opinions,  but  statements  of  facts.  W.  K.  Denny  v. 
Alma  Miller 144 


934  Index. 

[References  are  to  Pages.] 

LIENS. 
See  Mechanics'  Liens. 

Rights  of  junior  lien  holders  when  senior  lien  holder  sues  to  foreclose. 
Ben  A.  Carrico  v.  Charles  Greenwell 293 

LIFE  ESTATES. 

Debtor  claiming  exemption  must  be  sole  owner  of  property,  including  dwell- 
ing-house. Owner  of  life  estate  entitled  to  exemption.  P.  T.  AUin  v.  John 
Robinson's  Ex'r 478 

LIMITATION  OF  ACTIONS. 
See  Statute  of  Limitations. 

MALICE. 
See  Criminal  Law,  Damages,  Malicious  Prosecution. 

MALICIOUS  PROSECUTION. 

Defendant  in  malicious  prosecution  suit  not  justified  because  he  acted  on  ad- 
vice of  officers.    E.  Nahm  v.  James  Aden 82 

When  plaintiff  is  entitled  to  recover  in  suit.    £.  Nahm  v.  James  Aden 82 

MANDAMUS. 

Plaintiff  having  appropriate  legal  remedy,  complete  and  adequate,  cannot  re- 
sort to  mandamus.    James  Coy  v.  James  Munier 677 

MARRIAGE.* 

Contract  must  be  valid  when  made  or  never  valid.    Anna  Webb  v.  J.  W. 

Forman 697 

-  Parties  with  capacity  to  contract  may  make  conveyance  in  consideration  of 

marriage.    Catherine  Waller's  Adm'r  v.  William  Harrison 717 

Suit  for  annulment  on  grounds  of  force  or  fraud  cannot  be  sustained  by 
defendant's  admission  alone.    R.  H.  Kelly  v.  N.  J.  Kelly 268 

MARRIED  WOMEN. 
See  Husband  and  Wife. 

MASTER  AND  SERVANT. 

Employe  injured  by  negligence  of  railroad  company  is  entitled  to  compensa- 
tion equal  to  earning  capacity.  Jury  may  increase  damages  as  punishment,  ac- 
cording to  circumstances.  Louisville  &  Nashville  R.  Co.  v.  John  N.  Brown's 
Adm'r 548 

MECHANICS'  LIENS. 

See  Husband  and  Wife. 

•  Mechanics  and  material-men  hold  liens  on  building  and  land  when  material 
is  used  and  labor  performed  in  construction.  Chas.  Graves  v.  T.  D.  Collins 
&  Sons 667 


Index.  935 

[References  are  to  Pages.] 
MECHANICS'  LIENS-Continucd. 

No  action  to  foreclose  mechanic's  lien  can  be  maintained  after  twelve 
months  from  completion  of  work  or  furnishing  material.  Walter  &  Struck 
V.  R.  W.  Wooley 337 

Purchaser's  promise  to  use  material  in  building  does  not  give  material-man 
lien  on  land.    Charles  Graves  v.  T.  D.  Collins  &  Son 667 

MENTAL  CAPACITY. 
See  Contracts. 

MINORS. 
See  Infants. 

MONEY  PAID. 

Purchaser  may  recover  purchase  money  from  plaintiff  who  was  instrumental 
in  causing  stranger's  property  to  be  sold,  when  not  belonging  to  defendant. 
Lloyd  Clemments  v.  James  Green 803 

MORTGAGES. 

Holders  of  purchase-money  notes  to  be  parties  to  mortgage  foreclosure. 
C.  M.  &  J.  W.  Whipp  V.  Frank  Wolford : ...22 

Judgment  for  sale  of  realty  in  mortgage  foreclosure  must  accurately  de- 
scribe it.    H.  C.  Douglass  v.  Samuel  Stone 669 

Judgment  should;  designate  manner  in  which  judicial  sales  should  be  adver- 
tised.   Andrew  Randall  v.  Elizabeth  T.  Randall •  •  •  •  • 178 

Legal  title  to  realty  does  not  pass  to  purchaser  at  judicial  sale  where  hold- 
ers were  not  made  parties  in  case  resulting  in  sale.  J.  J.  Sander's  Assignee 
V.  M.  Duvall 642 

Mortgagee  not  entitled  to  rent  before  foreclosure.  Huston,  Johnson  &  Co. 
v.  T.  J.  Strow 603 

Mortgage  or  sale  of  property  not  subject  to  creditors'  claims  not  set  aside. 
O.  S.  Williams  V.  G.  W.  Warner. 635 

Mortgage  securing  number  of  notes  secures  all  and  there  is  no  priority.  C. 
M.  &  J.  W.  Whipp  V.  Frank  Wolford 71 

Mortgaging  real  estate  does  not  defeat  claim  of  creditor  who  reserved  lien 
thereon.    J.  J.  Sander's  Assignee  v.  M.  Duvall , .642 

Only  mortgage  and  obligation  secured,  or  copies  thereof,  need  be  filed  in 
foreclosure  suit.    Lewis  Lentz  v.  Louisville  &  Jefferson  County  Association. 332 

Personal  judgment  against  infant  defendants  erroneous.  Andrew  Randall 
V.  Elizabeth  T.  Randall 178 

Pleading  to  set  up  wife's  want  of  power  to  divest  herself  of  title.  Sallie  W. 
Duerson  v.  W.  W.  Gardner 350 

To  cancel  acknowledged  ins1;rument  married  woman  must  aver  and  prove 
facts  showing  mortgage  not  read  and  explained,  not  acknowledged,  or  other 
facts  to  avoid  instrument.    Sallie  W.  Duerson  v.  W.  W.  Gardner 350 

Under  certain  conditions  mortgagee  may  have  receiver  appointed,  but  if 
there  is  none,  mortgagee  not  entitled  to  rents.  Huston,  Johnson  &  Co.  v.  T. 
J.  Strow 603 


936  Index. 

[References  are  to  Paces.] 
MORTGAGES- Continued. 

Where  mortgage  is  foreclosed  and  prior  liens  existed,  other  property  of  de- 
fendant covered  by  mortgage  should  first  be  sold  and  mortgage  debt  paid 
before  sale  of  realty  covered  by  liens.  John  W.  Zeigler  &  Wife  v.  John  W. 
Means 221 

Where  mortgage  in  foreclosure  suit  claims  attorney's  fees,  junior  incum- 
brancer may,  by  pleading  and  proof,  object  to  and  have  court  pass  upon  fees. 
J.  C.  Clemmons  v.  J.  S.  Connell 388 

Where  second  lien  holders  who  were  parties  in  a  mortgage  foreclosure  had 
no  receiver  appointed  to  collect  rents,  they  have  no  cause  of  action  against  the 
mortgagor  or  mortgagee  for  such  rents  after  all  matters  are  adjudicated.  J. 
L.  Gemmens  v.  J.  S.  Connell 301 

Where  wife  buys  husband's  foreclosed  property  from  creditor  with  her 
means  not  secured  from  husband,  property  not  liable.  Andrew  Buddy  &  Wife 
v.  W.  W.  Phipps  &  Johnson 176 

Whether  suit  is  brought  in  name  of  trustee  alone  or  not,  ratification  of  fore- 
closure sale  by  majority  of  bondholders  removes  doubt  of  validity  of  pur- 
chaser's title.    Lewis  Lentz  v.  Louisville  &  Jefferson  County  Association.. 332 

MUNICIPAL  CORPORATIONS. 

Codification  of  Charter. 

Power  of  legislature  to  provide  for  codification  of  charter  and  cit/s  com- 
pensation of  commissioners.    City  of  Covington  v.  John  N.  Furber 613 

OfUcers. 

Action  of  chairman  of  board  of  trustees  who  is  not  empowered  to  bind  town 
by  contract,  acting  against  majority,  is  void.  Caldwell  &  Harwood  v.  Trus- 
tees of  Town  of  Shelbyville 842 

Duty  of  proper  party  to  demand  public  money  from  town  marshal.  Board 
of  Trustees  of  Columbia  v.  T.  H.  Curd 460 

Liability  of  sureties  on  general  bond  of  marshal  for  failure  to  account  for 
execution  money.    J.  S.  Alves  v.  City  of  Henderson 451 

Town  trustees  not  proper  parties  to  demand  public  money  from  marshal. 
Board  of  Trustees  of  Columbia  v.  T.  H.  Curd 460 

Alleys. 
Alley  is  public  highway.    Samuel  Black  v.  John  Walker. '. 86 

Torts. 

City  councilmen  not  liable  for  improper  arrest  made  by  appointee.  C.  L. 
Johnson  v.  Board  of  Trustees  of  Harrodsburg. 678 

City  liable  for  defective  sidewalk  only  when  it  has  notice  or  defect  has  ex- 
isted long  enough  to  be  known  and  when  ordinary  diligence  in  removing  ob- 
struction is  not  used.    R.  W,  Davis  v.  City  of  Covington » . . .  .352 

City  liable  for  injuries  arising  from  dangerous  character  of  improvement 
work.    Wm.  H.  Pclton  v.  City  of  Hopkinsville ♦  -590 


Index.  937 

[References  are  to  Pages.] 

MUNICIPAL  CORPORATIONS— Continued. 

City  not  bound  to  answer  for  negligence  of  independent  contractor.  Will- 
iam H.  Pclton  V.  City  of  Hopkinsville 590 

Cross-petition  states  no  cause  of  action  where  it  is  not  averred  that  water 
flows  over  lands  because  of  street  construction.  M.  G.  Pope  v.  John  Terry's 
£x'r  &  City  of  Louisville,  S.  C.  Hepburn  v.  Same \,.,  .373 

In  damage  suit  against  city,  court  did  not  err  in  refusing  to  admit  evidence 
of  notification  to  council  of  insufficiency  of  hitchings.  Uriah  Shinkle  v.  City 
of  Covington 227 

Instruction  that  it  was  plaintiff's  duty  to  use  reasonable  care  in  securing  boat 
to  shore  erroneous.    Uriah  Shinkle  v.  City  of  Covington 227 

Public  Improvements, 

Before  payment  by  citizens  contract  and  specifications  must  be  shown  to  be 
in  accordance  with  provisions  of  ordinance,  and  approved  by  council.  City  of 
Lexington  v.  J.  H.  Baker,  J.  H.  Baker  v.  Kentucky  University 317 

Cities  may  cause  streets  and  alleys  to  be  improved  upon  petition  or  without 

it.    Samuel  Black  v.  John  Walker !  .85 

.  City  cannot  compel  abutting  property  owners  to  pay  for  improvement  de- 
parting from  ordinance  and  improvement  contract.  S.  B.  Redd  &  Bro.  v. 
Mary  E.  Walker 335 

City  council  authorized  to  improve  streets,  impose  burden  equally,  and  make 
contracts.  After  accepting  and  approving  work  it  must  pay  therefor,  notwith- 
standing departure  from  specifications.  City  of  Lexington  v.  J.  H.  Baker,  J. 
H.  Baker  v.  Kentucky  University 317 

City  empowered  to  charge  adjacent  property  holders  with  construction  or  re- 
pair of  sidewalks.    Herman  Haskamp's  Ex'x  v.  S.  J.  Walker 417 

City  must  prove  to  property  holders  that  it  has  power  to  make  assessments 
for  street  improvements  and  that  they  were  made  in  the  prescribed  mode. 
City  of  Newport  v.  Henry  C.  Timberlake 483 

Construction  cost  apportioned  upon  all  lots  fronting  improvement,  but  repair 
cost  assessed  separately.    Herman  Haskamp's  Ex'x  v.  S.  J.  Walker 417 

Contractor  looks  to  city  for  pay  where  he  cannot  collect  from  property- 
owners  because  of  faulty  ordinance.  City  of  Paducah  v.  A.  S.  Jones's 
Adm'x 809 

Courts  not  to  control  question  of  street  improvements.  M.  C  Slaughter  v. 
City  of  Louisville 24 

Heirs  of  grantor  who  conveyed  right  of  way  in  consideration  of  improve- 
ment of  his  property  by  building  of  turnpike  and  of  free  use  thereon  not  ex- 
empt from  paying  assessments  when  such  turnpike  becomes  city  street. 
M.  G.  Pope  V,  John  Terry's  Ex'r  and  City  of  Louisville,  S.  C.  Hepburn  v. 
Same 373 

In  absence  of  legally  imposed  tax  on  adjoining  property,  city  liable  for  cost 
of  improvements.    Herman  Haskamp's  Ex'x  v.  S.  J.  Walker. 417 

In  apportioning  cost  of  improvements  through  unplatted  ground,  comer  lots 
not  considered.  B.  H.  Bristow  v.  A.  H.  Bowman,  W.  A.  Merriweather  v. 
Same 448 


938  Index. 

[References  are  to  Pages.] 

MUNICIPAL  CORPORATIONS— Continued. 

Owners  to  pay  assessment  for  improvements  made  according  to  ordinance. 
W.  H.  Dulaney  v.  Bowman 592 

Petition  by  taxpayers  unnecessary  before  contract  for  street  improvements. 
W.  H.  Dulaney  v.  Bowman .592 

Powers  of  city  trustees  to  levy  tax  to  construct  water  works.  City  of  Bowl- 
ing Green  v.  Albert  Mitchell 849 

That  property  assessed  had  been  assessed  for  other  public  improvements  is 
no  defense  to  suit  to  recover  assessment.    Samuel  Black  v.  John  Walker. . .  .86 

Title  to  property  sold  under  judgment  invalid  unless  record  shows  every 
prerequisite  to  judgment    Wm.  Stone  Albert  v.  A.  Harris 620 

To  avoid  payment  for  street  improvements  city  must  set  up  in  answer  that 
realty  owners  made  contract  to  pay  therefor.  City  of  Paducah  v.  A.  S.  Jones's 
Adm'x 61 

Transfer  of  contract  to  improve  street,  with  consent  of  city,  not  new  con- 
tract.   B.  H.  Bristow  v.  A.  H.  Bowman,  W.  A.  Merriweather  v.  Same 448 

When  cost  of  improvement  is  assessed  by  council  against  lot,  personal  judg- 
ment against  owner  erroneous.    J.  G.  Arnold  v.  Peter  Smith 494 

Taxes, 

Taxpayer  resisting  collection  on  ground  of  confiscation  through  exorbitant 
assessments  must  aver  and  prove  facts  showing  property  not  benefited  to  ex- 
tent of  assessment.    William  Preston  v.  Charles  Obst Z77 

NAMES. 

Court  cannot  compel  party  to  change  business  sign  or  name,  although  same 
as  that  of  another.    John  H.  Miller  v.  Jacob  H.  Miller 41 

NAVIGABLE  WATERS. 

Person  has  right  to  use  navigable  stream  to  float  logs.  Is  not  liable  unless 
negligent  or  careless.  Turner  &  Gudgel  v.  Licking  River  Lumber  &  Min- 
ing Co. 539 

NEGLIGENCE. 

Averment  of  manner  and  extent  of  personal  injury  sufficient  James  Walsh 
V.  James  M.  Powers 576 

Court  did  not  err  in  refusing  to  give  instruction  concerning  that  which  the 
jury  had  been  charged  to  consider.  Louisville  &  Nashville  R.  Co.  v.  John 
M.  May 116 

In  personal  injury  action,  pleading  of  motive,  interest,  circumstances  un- 
necessary.   James  Walsh  v.  James  M.  Powers .576 

Liability  of  railroad  company  for  damages  when  defective  boiler  was  wil- 
fully neglected.    Louisville  &  Nashville  R.  Co.  v.  John  M.  Brown's  AdmV.548 

NEW  TRIAL. 

Appellee's  failure  to  take  certain  deposition  no  ground  for  new  trial.  J.  W. 
Osborne  &  King  v.  William  Hallement 12 

Correctness  of  instructions  not  questioned  by  averment  of  illegal  judgment 
Barnard  Kimbley  v.  S.  A.  Jackson 658 


Index.  939 

[Eeferences  are  to  Pa^^s.] 

NEW  TRIAL— Continued. 

Court  of  Ap(ieals  prestunes  motion  for  new  trial  timely  where  record  silent 
A.K  Porter,  Guardian,  v.  K  P.  Neal Ill 

Finding  receipt  after  trial  no  ground  for  new  trial  where  sufficient  diligence 
not  used  before.    R.  M.  Lesly  v.  John  D.  Minos 758 

New  trial  denied  when  new  evidence  might  have  been  discovered  at  tirst 
trial.    B.  Small's  Adm'r  v.  A.  S.  Jones,  Adm'r 852 

OFFICERS. 

Duty  of  officer  to  make  plain  matters  pertaining  to  his  duty.  James  Best 
V.  Perry  Jefferson. 829 

Official  acts  of  de  facto  officer  not  questioned  in  collateral  proceeding.  K. 
F.  Moore  v.  Commonwealth 482 

Official  acts  of  de  facto  officer  valid  so  far  as  they  affect  public  or  private 
interests.    K.  F.  Moore  v.  Commonwealth 482 

Where  corporation  knowingly  misrepresents  fidelity  of  bonded  officer  to 
sureties,  it  cannot  recover  for  defalcations  occurring  after  such  misrepresenta- 
tions.   Virgil  Hewett  v.  Louisville  &  Nashville  R.  Co 422 

PARTIES. 

When  there  is  no  demurrer  to  failure  to  make  person  party,  such  objection 
waived.    James  McGuire  v.  John  McGuire 253 

Where  defendant  fails  to  require  plaintiff  to  make  partner  party  plaintiff  or 
dismiss  suit,  right  waived.  .  A.  Gum  v.  G.  M.  Adams  &  Co .403 

PARTITION. 

Interested  party's  dissatisfaction  with  partition  and  offer  to  purchase  whole 
tract  no  ground  for  setting  aside  partition.  Harrison  &  Shelby  v.  W.  O. 
Barksdale's  Adm'x 277 

Where  commissioners  made  no  report  on  partition  of  land  for  eight  years 
and  owners  did  not  take  possession,  such  partition  is  held  abandoned  Charles 
A.  Dimmit  v.  Charles  M.  Fleming 78 

Where  owner  of  three- fourths  interest  sells  interest  and  conveys  what  was 
assumed  to  be  his  whole  interest,  purchaser  not  disturbed,  providing  remain- 
ing one-fourth  interest  in  value  can  be  carved  out  of  tract  not  conveyed. 
James  Burden  v.  James  B.  Throckmorton 299 

PARTNERSHIP. 

After  dissolution,  but  before  actual  notice  to  creditor,  non  est  factum  is  not 
defense  to  suit  on  note  by  creditor  who  had  dealt  with  firm  before  execution 
of  note.    O.  C.  Pace  v.  H.  C  Claflin  &  Co 706 

Creditor  may  not  sue  on  contract  with  retiring  partner  on  dissolution  to  pay 
portion  of  indebtedness  unless  all  parties  to  transaction  are  made  parties  and 
subrogation  on  proper  showing  may  be  had.  J.  B.  Owsley  v.  Reuben 
Williams 242 


940  Index. 

[References  are  to  Pftges.] 

PARTNERSHIP--Continucd. 

Fraudulent  collusion  by  partners  with  others  to  cheat  creditors  will  give 
creditors  right  to  aid  of  court  of  equity.  J.  &  S.  B.  Sachs  &  Co.  v.  W.  B. 
Shelton 897 

Newspaper  notice  of  dissolution,  unless  shown  to  have  come  to  knowledge 
of  person  who  had  previously  dealt  with  firm,  insufficient.  O.  C.  Pace  v.  H. 
B.  Claflin&Co 707 

Partner  does  not  cease  to  be  partner  by  abandoning  partnership  business. 
J.  &  S.  B.  Sachs  &  Co.  v.  W.  B.  Shelton 897 

Partner  entitled  to  recover  where  other  partner  guilty  of  breach  of  certain 
contract.    W.  T.  Evans  v.  H.  R.  Ryan 721 

Partner  not  relieved  by  his  withdrawal  from  firm  before  note  was  given  to 
evidence  such  debt    O.  C.  Pace  v.  H.  B.  Claflin  &  Co 706 

Right  of  partner  not  joining  in  assignment  to  join  assignee  in  suit  to  collect 
firm  debts.    Wilson  &  Spencer  v.  W.  O.  Hampton 442 

When  partner's  lien  superior  to  that  of  creditors.  N.  C.  Marsh  v.  M.  H. 
Breeze 229 

When  retiring  partner  must  be  made  partner.  J.  B.  Owsley  v.  Reuben 
Williams 242 

PATENTS. 

Purchaser  must  offer  to  return  patent  before  availing  himself  of  fraudulent 
conveyance  as  defense  to  action  to  collect  purchase-price.  Henry  Weitzel  v. 
FredNover 351 

PAYMENT. 

Evidence  of  payment  inadmissible  where  not  pleaded  as  defense.  Mary 
Vallandingham  v.  G.  B.  Igo 427 

Offer  to  pay  debt  in  horses  at  price  fixed  by  debtor  does  not  relieve  debtor 
nor  his  sureties.    Leet,  Crutchfield,  et  al.,  v.  D.  C.  Robertson 638 

What  defendant  must  prove  where  note  was  paid  in  confederate  money  and 
plaintiff  pleads  illegality.    John  Williams  v.  A.  C.  Godsay 210 

PENALTIES. 

Debtor  relieved  in  equity  for  undertaking  to  pay  attorney's  fee  when  cred- 
itor compelled  to  sue.  If  he  pays  such  fee  he  cannot  recover  it.  J.  L.  Clem- 
mens  v.  J.  S.  Connell 301 

PERJURY. 

Grand  juror  competent  witness  to  prove  what  statement  was  where  maker 
is  charged  with  perjury  therein.    Samuel  Hall  v.  Russell  Hamilton 208 

PERSONAL  INJURIES. 
See  Negligence. 


Index.  941 

(Referencefl  are  to  Pages.] 

PLEADING. 

Answer  denying  plaintiff's  averment  that  he  is  owner  and  entitled  to  pos- 
session of  realty  insufficient.    Christianna  Vinegar  v.  Andrew  Jackson 304 

Answer  in  nature  of  plea  in  abatement  for  want  of  necessary  parties  to  con- 
tain names  of  those  who  should  be  parties,  and  defendant  must  prove  these 
averments.    O.  C.  Pace  v.  H.  B.  Claflin  &  Co 707 

Answer  that  plaintiff's  averment  of  ownership  of  certain  realty  is  untrue  not 
general  denial.    M.  Frazer  v.  J.  C.  Merrell 33 

Averring  cost  of  improvement  amounts  to  confiscation  is  only  averment  of 
conclusion.    M.  C.  Slaughter  v.  City  of  Louisville 24 

Court  can  allow  amendments  to  pleadings  consistent  with  facts  proven,  but 
not  when  defendant  swears  to  different  state  of  facts  without  excuse.  A. 
Ham  Ayer  v.  James  Waltrip's  Adm'r 453 

Court  must  notice  charter  amendment  without  pleading.  City  of  Paducah 
V.  Nathan  Kahn 35 

Defective  petition,  answered  on  merits,  may  sometimes  be  cured.  H.  J. 
Poor  v.  Thomas  Stevenson 432 

Defendant's  right  to  bill  of  particulars  before  answering,  not  after.  C.  A. 
M.  Yarbra  v.  James  Specht 521 

Demurrer  to  reply,  going  back  to  answer  in  which  set-off  is  relied  upon, 
raises  question  of  sufficiency  of  answer.  Thomas  A.  Morgan  v.  Henry 
Wood  101 

Each  separate  defense  to  be  set  forth  in  separate  paragraph  and  to  be  com- 
plete in  itself.    W.  K  Denny  v.  Alma  Miller 144 

Petition  must  set  forth  facts  essential  to  cause  of  action.  R.  B.  Edelin  v. 
Lawrence  Bradley 129 

Petition  on  demurrer  bad  when  it  fails  to  aver  debt  due  or  existence  of  con- 
dition making  it  due.    William  Bell  V.  W.  W.  Bryant 309 

Pleading  should  aver  ancestor's  death  and  relation  of  pleaders  to  him  so  that 
court  may  determine  whether  they  be  heirs.    W.  A.  Herrel  v.  J.  O.  Porter. 265 

Pleading  to  recover  land  must  describe  it  sufficiently.  Wm.  Pollard's  Heirs 
v.  Jas.  Morrison's  Adm'r.  * 43 

Pleading  to  set  forth  facts,  and  no  issue  of  fact  where  conclusions  pleaded. 
L.  F.  Boulware  v.  J.  H.  Louden,  Willis  Henderson  v.  S.  F.  Boulware,  Eli  Lou- 
den V.  S.  F.  Boulware 93 

Reply  averring  plaintiff  to  lack  sufficient  knowledge  to  decide  on  truth  of 
averments  in  answer  not  good.    F.  R.  Hancock  v.  John  F.  Rice 826 

Statement  that  appellant  is  "the  only  heir  at  law"  statement  of  conclusion  of 
law  where  no  averment  that  intestate  died  childless.  Rosa  Gardner  v.  O. 
Williams  50 

Where  defective  petition  is  made  good  by  answer,  and  petitioner  demurs  to 
answer,  it  will  reach  back  to  petition.    H.  J.  Poor  v.  Thomas  Stevenson. .  .432 

PRINCIPAL  AND  AGENT. 

Agent  cannot  collect  what  is  due  his  principal  by  discharging  own  debts; 
debtor  in  such  case  cannot  discharge  his  indebtedness  to  principal  by  crediting 
himself  with  amount  owing  to  him  by  agent  J.  L.  Sullivan  v.  Daniel  Nor- 
ris   391 


942  Index. 

[References  are  to  PageB.] 

PRINCIPAL  AND  AGENT— Continued 

Agent's  statement  of  his  agency  not  competent  as  proof  unless  brought  home 
to  principal.    Woolsworth  Handle  Works  v.  S.  Littlefield 367 

Agent's  statements  and  letters  inadmissible  as  evidence  to  establish  agency. 
E.  K  Weir  v.  Elizabethtown  &  Paducah  R.  Co 70S 

Agent  to  consider  principal's  interests  before  his  own  in  transactions.  N. 
E.  Vaughn  &  Wife  v.  H.  C.  Melone 21 

Fact  that  son-in-law  sometimes  transacted  father-in-law's  business  no 
ground  for  inferring  that  his  agreement  for  forbearance  was  made  as  agent. 
Dunlap  Howe's  G'd'n  v.  John  Darnell 270 

Only  fraud  or  imperative  necessity  will  justify  hostile  attitude  of  agent.  N. 
E.  Vaughn  &  Wife  V.  H.  C  Melone 21 

Principal's  repudiation  of  agent's  acts  five  months  after  he  learned  of  them 
and  year  after  taken  not  within  reasonable  time.  Jacob  W.  Funk  v.  Silas 
Miller 121 

Principal,  to  avoid  performance  of  agent's  unauthorized  acts,  must  disavow 
them  within  reasonable  time.    Jacob  W.  Funk  v.  Silas  Miller 121 

PRINCIPAL  AND  SURETY. 

Creditor  to  deal  with  surety  in  utmost  good  faith,  but  not  bound  to  disclose, 
unasked,  amount  of  principal's  indebtedness.  W.  G.  Wade  v.  First  Nat.  Bank 
of  Franklin 518 

Due  diligence  is  pursuing  legal  remedy  against  obligor,  when  and  how  law 
authorizes  him.    David  W.  Barr  v.  James  Jenkins 550 

Failure  to  sue  out  execution  for  eighteen  days,  without  excuse  and  without 
giving  it  to  sheriff  for  four  days,  shows  lack  of  diligence  required  to  hold  as- 
signor.   David  W.  Barr  v.  James  Jenkins 550 

If  surety  desires  creditor  to  sue  principal,  he  must  serve  written  notice,  un- 
less creditor  waives  it.    James  C.  Townsend  v.  W.  O.  Britt 602 

Question  whether  surety  released  by  plaintiff's  acts  or  omissions  not  raised 
by  replevin  bond.    John  Stevens  v.  J.  H.  Quisenberry 445 

Surety  holding  mortgage  against  principal  may  not  sue  before  paying  debt 
unless  indemnity  insufficient  or  property  likely  to  be  removed,  etc.  B.  P.  Mit- 
chell V.  James  Woodlington 475 

Surety  released  of  amount  possible  to  realize  by  execution  when  creditor 
stays  execution  without  former's  consent.    R.  J.  Hay  v.  John  Tw3mian 475 

Surety  released  when  creditor  gives  principal  indulgence  without  surety's 
consent.    R.  J.  Hays  v.  John  Twyman 475 

To  recover  against  assignor  upon  return  of  no  property  on  execution  against 
payors,  assignee  must  show  diligence  in  proceedings  against  obligors.  David 
W.  Barr  v.  James  Jenkins 550 

PUBLIC  LANDS. 

Occupant  under  pre-emption  entry  can  pass  possession  to  another,  but  not 
sell.    Henry  Mays  v.  William  C.  Beatty 46 


Index.  943 

[References  are  to  Paiges.] 

PUNITIVE  DAMAGES. 
See  Damages. 

QUIETING  TITLE. 

Appellees  showing  title  and  possession  entitled  to  have  same  quieted.  Reu- 
ben Ard  V.  Elizabeth  Burton 180 

Objection  not  made  in  circuit  court  to  form  of  action  or  misjoinder  of 
actions  cannot  be  made  on  appeal.    Reuben  Ard  v.  Elizabeth  Burton 180 

Petition  good  where  averring  title  in  ancestor  and  vested  in  plaintiff  by  will. 
Ella  Smith's  G'd'n  v.  Robert  Calvin 808 

Plaintiff  by  himself  or  tenant  must  be  in  possession  in  order  to  obtain  judg- 
ment quieting  title.    John  Miller  v.  James  Gaither 250 

Right  to  realty  possession  determined  in  action  at  law,  not  in  court  of 
equity.    John  Miller  v.  James  Gaither 250 

RAILROADS. 

See  Carriers,  Street  Railroads. 

Burden  on  company  to  disprove  negligence  and  carelessness.  Louisville, 
Cincinnati  &  Lexington  R.  Co.  v.  George  A.  Castleman 398 

Chief  engineer  not  empowered  to  contract  with  mine  owners  to  construct 
switches.    E.  K  Weir  v.  Elizabethtown  &  Paducah  R.  Co 705 

Company's  contract  to  build  cattle  guards  inadmissible  in  damage  suit 
against  lessee.  Louisville,  Cincinnati  &  Lexington  R.  Co.  v.  George  A.  Cas- 
tleman    398 

Company's  lessee  subject  to  same  liability  for  damages  as  company.  Louis- 
ville, Cincinnati  &  Lexington  R.  Co.  v.  George  A.  Castleman 398 

Erroneous  instruction  regarding  responsibility  for  stock  killed  by  train. 
Maysville  &  Lexington  R.  Co.  v.  John  Shay 128 

Failure  of  company  to  enclose  field  does  not  render  it  liable  for  crop  planted 
therein.    Elizabeth,  Lexington  &  Big  Sandy  R.  Co.  v.  R.  H.  Prewitt 654 

Instruction  making  company  liable,  when  erroneous.  Eastern  Kentucky  R. 
Co.  V.  Willis  Gholson 279 

Measure  of  damages  for  stock  killed  is  value  of  stock.  Maysville  &  Lex- 
ington R.  Co.  V.  John  Shay 127 

Only  ordinary  care  and  diligence  required  of  railroad  employes.  Maysville 
&  Lexington  R.  Co.  v.  John  Shay ". 128 

Railroad  company  not  liable  because  of  manner  in  which  contractor  per- 
forms work,  but  both  are  liable  for  injuries  to  anpther  resulting  from  re- 
moval of  fence.  Elizabeth,  Lexington  &  Big  Sandy  R.  Co.  v.  R.  H. 
Prewitt    654 

Railroad  company  out  of  business  because  of  sale  of  franchises  still  exists 
for  purpose  of  collecting  and  paying  its  debts.  R.  W.  Woolley  v.  Leslie 
Combs   103 

Railroad  property  not  integral  part  of  track  or  rolling  stock  subject  to  ex- 
ecution, but  where  part  of  track,  creditors'  remedy  in  equity.  Ben  K.  Sleet 
V.  Louisville,  Cincinnati  &  Lexington  R.  Co 447 

Railroads  not  liable  for  killing  animals  on  right  of  way  when  agents  use  or- 
dinary care  and  diligence.    Eastern  Kentucky  R.  Co.  v.  Willis  Gholson 279 


944  Index. 

[References  are  to  Pagea.] 
RAILROADS— Continued. 

Where  railroad  company  has  gone  out  of  business  there  must  be  debts  by 
company  before  there  is  liability  of  stock  subscribers.  R.  W.  WooUey  v. 
Leslie  Combs 103 

REAL  ESTATE. 
See  Deeds,  Vendor  and  Purchaser. 

RECEIVERS. 

In  suit  against  receiver  and  bondsman  plaintiffs  must  aver  themselves  cred- 
itors, and  fimd  sued  for  not  subject  to  jurisdiction  of  court  in  receivership 
proceedings.    W.  W.  Hulings  v.  H.  C.  McDowell 364 

Validity  of  receiver's  sale  of  partnership  property.  John  C.  Gaddis  &  Co. 
V.  T.  T.  Ramsey 65 

RECOGNIZANCES. 

Recognizance  bond  does  not  import  consideration.  Commonwealth  v.  J. 
Z.  Turrell  730 

Recognizance  bond  not  showing  principal  in  custody  charged  with  public 
offense  is  invalid.    Commonwealth  v.  J.  Z.  Turrell 730 

Remission  of  whole  or  part  of  judgment  on  forfeited  recognizance  on  sur- 
render of  defendant.    E.  H.  O'Daniel  v.  Commonwealth 126 

REMOVAL  OF  CAUSES. 

Applicant  of  transfer  to  federal  court  must  offer  surety  and  file  required 
papers.    W.  B.  Duncan  v.  George  Griffy 610 

REPLEVIN. 

Failure  to  execute  on  replevin  bond  for  more  than  fourteen  months  releases 
surety.    R.  Stafford  v.  T.  J.  Campbell 533 

Petition  in  replevin  must  allege  value  of  property  sought  to  be  recovered. 
Henry  Magill  v.  R.  D.  Watson 133 

Replevin  bonds  by  part  of  defendants  in  execution  quashed  on  motion  of 
obligee.    John  Stevens  v.  J.  H.  Quisenberry 445 

To  hold  surety  where  execution  on  replevin  bond  has  not  issued  for  more 
than  year,  because  surety  consented  and  procured  plaintiff's  indulgence,  such 
consent  to  be  clearly  shown.    R.  Stafford  v.  T.  J.  Campbell 533 

REVENUE. 
See  Taxation. 

REWARDS. 

Where  one  locates  offender  and  gets  warrant,  and  another  makes  arrest, 
reward  is  divided  equally.    John  K.  Tomlinson  v.  Daniel  W.  Phoenix 547 


Index.  945 

[References  aie  to  Paces.] 

SALES. 

See  Vendor  and  Purchaser. 

Answer  denying  liens  admissible  where  covenantee  paid  Hens  as  compromise 
and  to  avoid  litigation.    J.  H.  Porter's  Adm'r  v.  John  B.  Castleman 20 

Lender  of  purchase-price  entitled  to  lien  on  property  as  against  others  no- 
tified of  loan.    Barnard  Kimbley  v.  S.  A.  Jackson 657 

Lien  in  bill  of  sale  good  between  vendor  and  vendee  and  equity  protected 
against  claim  of  person  without  superior  right.  Adoply  Endrick  v.  Peter 
Karlin 818 

One  who  becomes  creditor  after  person  has  executed  bill  of  sale  to  another 
is  inferior  in  point  of  time  to  holder  of  bill.  Adoply  Endrick  v.  Peter  Kar- 
lin   818 

Record  of  bill  of  sale  not  notice  to  public  Adoply  Endrick  v.  Peter  Kar- 
Im 818 

Sale  of  chattels,  rightfully  in  third  party's  possession,  not  fraudulent.  Ben- 
jamine  Stinnet  v.  John  Lowney 263 

Sale  of  property  made  by  debtor  before  levy  upheld  if  made  in  good  faith 
for  valuable  consideration.    J.  M.  Lewis  v.  William  Richards 209 

Sale  of  tobacco  valid  without  delivery  of  possession  where  not  susceptible 
of  delivery.    Armstrong  &  Taylor  v.  William  M.  Reynolds 169 

Sale  or  mortgage  of  personalty  exempt  from  coercive  seizure  enforced.  N. 
Harris  v.  Thomas  H.  Prather , .  .799 

Seller  retaining  title  until  personalty  paid  for  cannot  recover  property  from 
vendee's  innocent  purchaser.    Henry  Payne  v.  John  Farr 179 

Title  to  goods  remains  in  vendor  if  material  act  remains  to  be  performed, 
unless  such  act  devolves  upon  purchaser.    R.  Y.  Daniel  v.  J.  W.  Steerman.663 

Where  action  was  compromised  and  there  was  no  judgment,  there  was  noth- 
ing settled.    J.  H.  Porter's  Adm'r  v.  John  B.  Castleman 19 

SCHOOLS  AND  SCHOOL  DISTRICTS. 

Amount  due  teachers  from  state  not  reached  by  attachment.  W.  E.  Clark 
V.  A.  Lee's  Assignee 882 

Common  school  system  is  state  system.  W.  E.  Clark  v.  A.  Lee's  Assig- 
nee   , 882 

Principal  of  Paris  public  schools  employee  of  state,  and  school  money  in 
hands  of  o£Eicers  is  public  money  held  by  them  as  state's  agent  W.  E.  Clark 
V.  A.  Lee's  Assignee 882 

SET-OFF  AND  COUNTERCLAIM. 

Defendant  in  suit  to  collect  purchase  money  cannot  recover  on  counter- 
claim without  showing  amount  of  damages  sustained  by  delay  in  delivery. 
Daniel  Monarch  v.  John  P.  Young 232 

SHERIFFS  AND  CONSTABLES. 

Defendant,  in  suit  brought  by  execution  plaintiff  against  sheriff  for  loss, 
must  prove  himself  not  negligent  in  order  to  escape  liability.  Commonwealth 
v.  G.  W.  Taylor 105 

60 


946  Index. 

[References  are  to  Pages.] 

SHERIFFS.  AND  CONSTABLES— Continued. 

No  liability  on  constable's  bond  for  failure  to  return  invalid  execution. 
William  M.  Hibbard  v.  W.  S.  Watson 461 

Petition  to.  hold  sheriff  and  bondsmen  liable  for  not  collecting  amount  of 
execution  defective  if  no  loss  nor  damage  is  alleged.  J.  O.  Calhoim  v.  Fow- 
ler Lee  &  Co 527 

.  Sheriff,  and  bondsmen  liable  only  for  money  withheld,  T.  R.  Hume  v.  Lee 
Jake  White's  G'd'n 651 

Sheriff  levying  execution  upon  personalty  may  maintain  trover  for  conver- 
sion.   R.  J.  Daniels  v.  G.  B.  Dockery , 668 

Sheriff  no  power  to  serve  civil  process  out  of  his  county.  Reuben  Gill  v. 
Milton  Farmer  770 

Sheriff  to  take  into  his  possession  or  be  responsible  for  property  levied 
upon.    Commonwealth  v.  G.  W.  Taylor ...105 

Uptil  expiration  of  term,  or  death,  or  resignation  of  sheriff,  office  not  va- 
cant unless  officially  declared  so.    A.  L  Cocoughner  v.  Commonwealth 551 

SLANDER. 
See  Libel  and  Slander. 

SPECIFIC  PERFORMANCE. 

I 

9       , 

■  Court's  judgment  requiring  conveyance  and  appointing  commissioner  when 
^ecific  performance  is  demanded  is  final  and  court  retains  jurisdiction  there- 
after .only  for.  execution.    A.  L.  Greer  v.  E.  R.  Gard. .313 

1   Specific  performance  not  decreed  of  contract  not  complete.    H.  B.  Dean  v. 

B,  Meter  , , ,746 

,  Where  plaintiff  asks  judgment  requiring  defendant  to  perform  contract  and 
Cfttivey  realty,  or  that  court  cause  comn^issioner  to  make  conveyance,  court 
may  not  render  judgment  against  defendant  for  value  of  land.  A.  L  Greer 
v,  E.  R.  Gard 313 


'  'A 


STATUTE  OF  FRAUDS. 


Contract  to  pay  debt  enforceable  by  vendor  against  vendee.    Samuel  Orr  v. 

A.  J.  Colley 791 

..  Contract  with  debtor,  upon  valuable  consideration,  to  pay  debt  to  his  cred- 
itor binding.    Samuel  Orr.  v.  A.  J.  Colley ,. ., , ^791 

Court  cannot  decree  specific  performance  of  verbal  contract  for  realty  sale. 
•T.  C.  Bidwell  V.  James  Fackler. . . , , 97 

.Defendant  not  liable  unless  agreement  to  stand  good  for  payment  is.  writ- 
•teo,  where  goods  were  bought  by  another  on  his  own  account    George  Scott 

V.  Davis,  Starts  &  Co .- 25 

>:  Letter  signed  by  tenant  agreeing  to  pay  extra  money  to  third  landlord  is 
sufficient  tp  take  his  promise  out  of  the  statute  of  frauds.    John  B.  Davis  v. 

Jphn  Gault,  Sr.,  Adm'r ...,...,...* .28 

\.  Party  not  liable  for  goods  contracted  for  by  another  unless  his  subsequent 
promise  was  written  or  made  before  delivery  was  completed.  George;  Scott 
v.  Davis,  Starts  &  Co ».26 


Index.  947 

[References  are  to  Pages.] 

STATUTE  OF  FRAUDS— Continued. 

Undertaking  to  pay  debt   of  another.    Press   Printing  Co.   v.  J.   Soulc 

Smith 224 

'  Where  mill,  mill  seat,  and  three  surrounding  acres  are  sold  "so  long  as 
property  was  used  as  mill/'  no  action  can  be  maintained  upon  a  parol  contract 

for  sale.    F.  Montgomery  v.  William  Gardner »  ^. , . .  110 

Written  contract  between  parties  not  admissible  in  evidence  where  seller 
sues  to  collect  from  both  parties.    George  Scott  v.  Davis,  Starts  &  Co 26 

STATUTE  OF  LIMITATIONS. 

Beginning  action  in  county  other  than  defendant's  residence  and  serving  him 
with  process  in  home  county  gives  court  no  jurisdiction,  and  statute  of  limi- 
tations will  run  notwithstanding  action.  W.  W.  Rulings  v.  William  Martin. 321 

Burden  on  plaintiff  to  avoid  operation  of  statute  of  limitations.  Thomas 
Dixon  V.  Robert  Wallace 276 

Defendant  pleading  non-intercourse  proclamation  of  1861  for  failure  to 
have  execution  must  prove  residence  in  state  in  rebellion  at  that  time.  E.  A. 
Lynn  v.  J.  S.  Lynn ' 70 

Demurrer  not  sustained  where  petition  does  not  show  action  barred  and  de- 
fendant not  within  exceptions.    W.  B.  Hosick  v.  Elizabeth  Trabuc 805 

Failure  to  sue  on  new  promise  cured  by  answer.  Commonwealth  for  Sat- 
terly  V.  Harrison  M.  Demarce : . .  11 

Injunction  issued  to  prevent  execution  on  judgment  standing  unexecuted 
seven  years,  where  no  valid  excused    K  A.  Lynn  v.  J.  S.  Lynn 70 

New  acknowledgment  of  indebtedness  after  debt  has  been  barred  presents 
no  ground  for  recovery;  but  moral  obligation  to  pay  furnishes  consideration 
of  new  promise.    John  Cassell's  Heirs  v.  A.  Gazello's  Ex'r 384 

No  execution  may  lawfully  issue  after  seven  years.  E.  A.  Lyrni  v.  J.  S. 
Lynn  ..70 

Pleader's  duty  to  aver  that  cause  had  accrued  more  than  statutory  period 
before  commencement  of  action.    Samuel  Kester  v.  W.  C.  Whitaker 499 

Plea  not  good  where  party  recognizes  liability  within  five  years.  Common- 
wealth for  Satterly  v.  Harrison  M.  Demaree 11 

Removal  from  state  of  defendant,  who  made  frequent  visits  back  home,  did 
not  suspend  running  of  statute  of  limitations.  Thomas  Dixon  v.  Robert  Wal- 
lace  277 

Statute  not  taken  advantage  of  by  demurrer  where  only  defect  in  plaintiffs 
petition  is  that  cause  is  barred  by  time.  Ella  Smith's  G'd'n  v.  Robert  Cal- 
vin  .....;..  808 

Statute  of  limitations  begins  to  run  against  owners  of  fee  after  death  af 
widow  having  life  estate.    Henry  Creason  v.  Nancy  Harrington 48 

Statute  of  limitations  runs  until  beginning  of  action  in  court  having  juris- 
diction.   W.  W.  Hulings  v.  William  Martin 320 

Three  3rears  limitation  barring  appeal  presented  by  plea,  not  incorporated 
in  brief.    A.  Boyd  v.  A.  D.  Tliomas ; ". * .  .460 

When  petition  is  amended  after  time  for  barring  original  action,  plea  of 


948  Indbx. 

[B«f«reiice8  are  to  PacM.] 
STATUTE  OF  UMITATIONS-Continucd 

statute  not  maintained  unless  amendment  declares  upon  new  cause  of  action. 

R.  D.  Geoghegan's  Ex'r  v.  John  G.  Hillson 787 

Where  defendant  left  state  after  right  of  action  had  accrued,  statute  of  lim- 
itations will  not  run  in  his  favor  while  absent  V.  R.  Hines  v.  P.  B.  Mc- 
Cormick 123 

STREET  RAILROADS. 

See  Railroads. 

Although  injured  is  guilty  of  contributory  negligence,  driver  must  use  rea- 
sonable diligence.    Louisville  City  R.  Co.  v.  Antonie  Brotzge 556 

An  instruction  that  company  is  not  liable  if  driver  did  nor  could  not  see 
child  is  erroneous.    Louisville  City  R.  Co.  v.  Preston  Johnson's  Adm'r....512 

Company  liable  where  driver  carelessly  failed  to  see  child,  if  he  could  have 
seen  him  and  avoided  injury  by  exercising  diligence.  Louisville  City  R.  Co. 
V.  Antonie  Brotzge 556 

Company  liable  where  driver  did  not  use  diligence  in  seeing  child  or  stop- 
ping car.    Louisville  City  R.  Co.  v.  Antonie  Brotzge 556 

•Company  not  liable  for  injuring  person  attempting  to  cross  tracks,  unless 
prudent  driver  would  have  believed  car  would  strike  him,  if  not  checked. 
Louisville  City  R.  Co.  v.  Preston  Johnson's  Adm'r 512 

Duty  of  street  car  company  to  select  competent  drivers ;  duty  of  drivers  to 
exercise  care  and  diligence.  Louisville  Gty  R.  Co.  v.  Preston  Johnson's 
Adm'r 511 

If  one  cannot  safely  be  both  conductor  and  driver  of  car,  company's  failure 
to  employ  another  hand  is  culpable  negligence.  Louisville  City  R.  Co.  v.  An- 
tonie Brotzge 556 

SUNDAY. 

When  obligee  knew  on  acceptance  that  note  signed  and  delivered  on  Sunday 
was  invalid,  he  cannot  recover.    Thomas  Martin  v.  G.  B.  Taylor's  Adm'r.. 559 

SURETYSHIP. 
See  Principal  and  Surety. 

TAXATION. 

Amount  of  indebtedness  to  be  deducted  from  amount  of  money  assessed  for 
taxation.    A.  Harpending  v.  Commonwealth 245 

Court's  right  to  .determine  when  taxation  so  excessive  as  to  amount  to  con- 
fiscation exercised  only  where  legislative  power  has  been  palpably  abused.  M. 
C  Slaughter  v.  Gty  of  Louisville 24 

Courts  will  use  power  to  arrest  taxation  only  to  prevent  legalized  spolia- 
tion.   W.  H.  Dulaney  v.  Bowman 592 

Duly  appointed  collector  whose  bond  has  been  approved  by  judge  must  have 
opportunity  to  show  sufficiency  of  bond  or  fail  to  furnish  additional  bond  with- 
in reasonable  time  after  notification  before  being  deprived  of  office.  C  W. 
Field  V.  Commonwealth 305 


Index.  949 

[References  are  to  Pages.] 
TAXATION-<:ontinued. 

Levy  creates  lien  on  property  for  amount  of  taxes  due  from  delinquent 
City  of  Paducah  v.  Nathan  Kahn .35 

Liability  of  officers  collecting  taxes  when  want  of  authority  is  dear.  Liv- 
ingston County  Court  v.  S.  H.  Piles 884 

Liability  of  tax  collector  and  sureties.  Livingston  County  Court  v.  S.  H. 
Piles 884 

Notes,  accounts,  and  indebtedness  taxable  at  home  of  creditor.  William 
Cooke  &  Wife  v.  Trustees  of  Winchester 442 

Omission  of  any  legal  step  for  taxpayer's  protection  renders  tax  sale  void. 
James  Saffell  v.  City  of  Frankfort 584 

Perpetual  lien  for  taxes  exists  while  rig^t  to  collect  taxes  may  be  enforced, 
or  five  years.  R.  S.  Vaughan's  G'd'n  v.  J.  L.  Burkhart,  Same  v.  City  of  Louis- 
ville   517 

Plea  of  sheriffs  failure  to  execute  bond,  or  refusal  to  execute  it  for-  collec- 
tion of  special  tax,  does  not  relieve  him  of  collecting  taxes.  A.  I.  Cocoughner 
Vi  Commonwealth , 55J 

Purchasers  after  levy  liable  for  all  taxes  due  from  delinquent  ownec.  City 
of  Paducah  v.  Nathan  Kahn , 35 

Realty  purchaser  at  tax  sale  must  show  compliance  with  statutes  in  levy  and 
sale  before  exacting  statutory  penalties.    Peter  Kaiber  v.  Ann  M.  Harris.  .348 

Tax  bill  and  sale  made  in  name  of  heirs  inheriting  realty  and  not  against 
estate.    Peter  Kaiber  v.  Ann  M.  Harris 348 

To  maintain  suit  against  sheriff  and  bondsmen  for  failure  to  pay  county  rev- 
enues, demand  from  proper  official  or  court  order  necessary.  Hardin  County 
Court  V.  W.  T.  Lowe » . . . .  .655 

Until  sheriff  fails  to  comply  with  demand  for  revenues,  properly  issued,  no 
action  against  him  and  bondsmen.    Hardin  County  Court  v.  W.  T.  Lowe. .  .655 


TRIAL. 
Sec  Ventie. 

Court  not  to  abuse  discretion  in  limiting  time  for  argument.  E.  Nahm  v. 
James  Aden  82 

Court  of  Appeals  assumes  omission,  to -give  further  instructions  assented 
to  by  counsel.    Andrew  J.  Smith  v.  Samuel  Berry 795 

Failure  to  liave  court  pass  upon  exceptions  to  introduce  evidence  waives  all 
objections  thereto.    C.  A.  M.  Yarbra  v.  James  Specht 521 

Instruction  for  damages  for  loss  of  time  and  employment  erroneous  where 
no  averment  of  such  loss  in  complaint.  Thomas  H.  Morgan  v.  Henry 
Wood ....101 

Instruction  in  malicious  prosecution  cause  erroneous  where  plaintiff  has  not 
showed  arrest  procured  maliciously  and  without  probable  cause.  £.  Nahm 
V.  James  Aden 82 

Instructions  offered  and  refused  become  part  of  record  only  by  court's  or- 
der or  bill  of  exceptions.    Martin  &  Ball  v.  Shelby  &  Dalton 601 

Party  neglecting  interests,  in  absence  of  fraud  or  misleading  statements  by 


9S0  Index. 

[References  are  to  Pages.] 

TRIAL — Continued. 

adversary,  cannot  complain  o£  disposal  of  cause  in  his  absence.  William  £. 
Milton  V.  C.  W.  Castleman 258 

Plaintiff  not  required  to  elect  cause  he  will  prosecute.  W.  M.  Hibbard  v. 
W.  S.Watson 461 

Separation  of  jury  after  agreement  on  verdict  does  not  vitiate  verdict  Mil- 
ton Williams  v.  Agnes  Noel 834 

TROVER  AND  CONVERSION. 

Defendant  accused  of  wrongfully  holding  possession  of  plaintiff's  horse  can- 
not, under  a  general  denial,  by  the  evidence  make  defense  of  confession  and 
avoidance.    John  R.  Lambert  v.  George  Smith 700 

TRUSTS. 

Averments  in  pleading  to  enforce  resulting  trust  insufficient  when  stating 
that  defendant  purchased  realty  for  plaintiff  and  took  conveyance  to  himself. 
John  Jones  &  Wife  v.  Alfred  Thompson 703 

Bond  of  trustee  of  estate  created  by  will  approved  by  court.  S.  Q.  M. 
Major  V.  R.  C.  Williams 118 

Husband's  agreement  to  invest  wife's  money  in  land  for  her  and  children 
not  notice  to  persons  in  county  other  than  where  placed  of  record.  Mary 
Owens  v.  Simon  Holt 94 

Petition  must  specifically  and  clearly  set  forth  facts  to  establish  parol  trust. 
C.  P.  Clemmons  v.  Jesse  Moore 292 

To  enforce  a  resulting  trust,  party  must  aver  it  not  within  the  operation  of 
general  provisions  in  ft  20  of  Act  of  July  1,  1852,  but  in  classes  excepted  in 
122.    John  Jones  &  Wife  V.  Alfred  Thompson 703 

Trustee  expending  large  sums  for  support  of  cestui  que  trust  cannot  claim 
credit  against  daughter's  estate  on  account  thereof.  S.  Q.  M.  Major  v.  R.  C. 
WilUams 117 

Trustee  for  married  daughter  cannot  claim  credits  for  money  advanced  to 
her  husband.    S.  Q.  M.  Major  v.  R.  C.  Williams *. 117 

When  purchaser  knows  grantor  holds  record  title  for  infants'  benefit  he 
takes  grantor's  interest,  and  infants'  rights  not  affected.  Robert  Abell  v.  John 
V.  Cartmell 562 

Where  husband  places  on  record  in  one  county  agreement  to  invest  wife's 
money  in  land  for  her  and  children  and  buys  it  in  another  county,  taking  title 
in  his  name,  title  of  persons  to  whom  he  sells  cannot  be  defeated  in  suit  to 
declare  trust  twenty  years  after  purchase.    Mary  Owens  v.  Simon  Holt.... 94 

Where  one  buys  realty  at  low  price,  for  entire  family,  after  persuading  pros- 
pective buyers  net  to  bid,  as  he  wished  to  protect  infants,  he  becomes  latter's 
trustee.  He  has  lien  for  money  advanced,  but  holds  title  for  infants'  benefit 
Robert  Abell  v.  Jchn  V.  Cartmell 562 

TURNPIKES  AND  TOLL  ROADS. 

If  company  or  agent  could  not  reasonably  know  that  road  roller  was  left 
in  road,  and  it  remained  but  one  night,  company  not  liable  where  horse  took 


Index.  951 

[Beferencea  i^re  to  Pages.] 

TURNPIKES  AND  TOLL  ROADS— Continued. 

fright.    David  Stoddard  v.  The  Flemingsburg  and  Poplar  Plains  Turnpike 

Road  Co 509 

Liability  of  turnpike  company  for  injuries  resulting  from  neglect  of  duty 
to  keep  road  unobstructed.  David  Stoddard  v.  The  Flemingsburg  and  Pop- 
lar Plains  Turnspike  Road  Co 509 

USURY. 

Affirmative  averment  that  usury  was  intentionally  charged  must  be  sustained 
by  proof.    James  C.  Rudd  &  Wife  v.  J.  F.  Kimbly 790 

All  interest  forfeited  where  usury  intentionally  charged.  James  C.  Rudd 
&  Wife  V.  J.  F.  Kimbly 790 

Compounding  interest  at  lawful  rate,  once  a  year,  not  usurious.  Thomas  H. 
Fox  V.  Apperson  &  Reid 233 

Defendant  need  not  plead  payment  of  usurious  interest  If  plaintiff's  state- 
ment shows  such  facts  they  are  sufficient,  and  defendant  entitled  to  credits  to 
amount  of  usury  paid.    J.  F.  Harris  v.  J.  G.  Hollowing's  Ex'r 360 

Interest  over  10  per  cent,  usurious  and  not  recovered.  J.  G.  Arnold  v. 
William  Maxwell 355 

One  paying  usury  cannot  recover  until  entire  principal  is  paid.  Caroline  J. 
Bacon  v.  Richard  Rudd,  AdmV 742 

Payer  of  usury  not  obliged  to  creditors  to  exercise  right  of  recovery.  John 
W.  Bell's  Assignee  v.  Bettie  Merriweather. 699 

Receiving  usury  in  advance  as  illegal  as  contracting  for  future  payment. 
W.  G.  Wade  v.  First  Nat.  Bank  of  Franklin 518 

Statute  of  1876  not  retrospective  in  operation.  Caroline  J.  Bacon  v.  Rich- 
ard Rudd,  Adm'r 742 

To  recover,  assignee  must  show  that  assignor  has  elected  that  such  right 
shall  be  enforced,    John  W.  Bell's  Assignee  v.  Bettie  Merriweather 699 

Usurious  interest  recovered  only  by  payor.  Surety  cannot  plead  usury  paid 
by  principal  as  set-off  or  counterclaim.  J.  L.  Vandivier  v.  Winchester  Build- 
ing &  Accumulating  Fund  Ass'n 575 

Where  borrower  receives  less  than  face  of  loan,  and  it  appears  that  some  of 
commissions  and  attorney's  fees  charged  are  collected  as  interest,  they  will  be 
considered  usurious.    J.  G.  Arnold  v.  William  Maxwell 355 

VENDOR  AND  PURCHASER. 

See  Sales.. 

Assignment  of  title  bond  implies  warranty  of  title  in  assignor.  Purchaser 
of  title  bond  takes  it  subject  to  notes  constituting  lien  on  land  described  in 
bond.    E.  J.  Green  v.  William  Gates 159 

Debtor  contemplating  insolvency  may  not  show  preference  to  creditor  by 
selling  him  property.    R.  S.  Hudson  v.  Thos.  S.  Hudson 632 

Duty  of  purchaser  of  realty  to  verify  rumors  coming  to  him  in  relation  to 
prior  sale,    Alexander  Carroll  v.  W.  E.  Collins 444 

Duty  of  purchasers  to  inquire  as  to  nature  of  possession  by  another.  Elijah 
C.  Hunt  v.  C,  H.  Blakey , 822 


95^  Index. 

{BeferenceB  are  to  Pa|^.] 

VENDOR  AND  PURCHASER— Continued. 

Duty  of  vendor  to  have  survey  made  promptly.  William  G.  Woods  v.  Will- 
iam Woods 6 

Grantee  entitled  to  have  deed  cancelled  when  grantor  fraudulently  concealed 
lack  of  title.    F.  J.  Staton  v.  J.  W.  Christian 785 

Grantee  induced  to  purchase  by  insolvent  grantor  representing  himself 
owner  is  entitled  to  relief  to  extent  that  vendor  had  no  title.  John  A.  Ka- 
noi^a  V.  John  Laquett 206 

Grantee  under  warranty  can  recover  only  when  evicted  and  not  beyond 
amount  paid  to  secure  good  title.    S.  H.  Sandifer  v.  John  H.  Williams 779 

Inadequacy  of  price  no  ground  for  setting  aside  sale,  except  when  coupled 
with  insufficient  description.    Abner  Minton  v.  L.  W.  Beard 630 

Insolvency  and  fraud,  properly  pleaded,  complete  defense  to  executed  con- 
tract.   F.  J.  Staton  v.  J.  W.  Christian • 785 

Interest  payable  from  survey  where  amotmt  to  be  determined  thereby. 
William  G.  Woods  v.  William  Woods 6 

Nominal  grantor  receiving  no  purchase-money  not  embraced  in  implied 
agreement  between  other  grantor  and  grantee  to  refund  part  of  money.  John 
Tomerlin  v.  G.  Terry 629 

Notes  expressly  reserving  lien  on  land  purchased  may  be  subjected  to  pay- 
ment, although  land  descended  to  vendee's  heirs.  John  Upshaw  v.  Levi  Jack- 
son   140 

One  cannot  recover  for  breach  of  covenants  of  warranty  until  he  is  dis- 
turbed or  covenants  broken.  D.  R.  Burbanks,  Jr.,  Adm'r,  v.  D.  R.  Burbanks, 
Sr.,AdmV 113 

On  rescission  of  contract  purchaser  of  realty  by  parol,  in  possession  there- 
under, has  lien  for  purchase  price  against  vendor  and  claim  of  subsequent  pur- 
chaser notified  of  his  prior  purchase.    McKay  v.  J.  W.  Sutherland 771 

Petition  merely  alleging  existence  of  lien  fatally  defective.  S.  M.  Hewitt 
V.  J.  H.  Rickart 664 

Priority  of  purchase-money  mortgage  notes  not  dependent  on  dates  of  ma- 
turity.   C.  M.  &  J.  W.  Whipp  V.  Frank  Wolford 22 

Purchaser  bound  to  notice  lien  provided  for  in  recorded  deed.  Henry  Lie- 
ber  V.  Henry  Cooper 782 

Purchaser  claiming  to  have  paid  valid  consideration  to  let  court  judge  of 
validity  thereof.    S.  F.  Buckley  v.  Richard  Board 16 

Purchaser  put  in  possession  by  debtor  has  lien  for  amount  of  claim  and  im- 
provements made.    Elijah  C.  Hunt  v.  C.  H.  Blakey 822 

Relation  of  trust  and  confidence  between  co-purchasers  inures  alike  to  all  of 
them.    Joseph  Gormley  v.  J.  B.  Alexander 45 

Secret  agent  of  vendor,  on  becoming  a  co-purchaser,  cannot  profit  by  secret 
understanding.    Joseph  Gormley  v.  J.  B.  Alexander 45 

Unless  deed  specifies  what  part  of  purchase  money  unpaid,  grantor  has  no 
lien.    S.  M.  Hewitt  v.  J.  H.  Rickart 664 

Vendor  in  foreclosure  no  right  to  rent-note  given  vendee  who  bought  land 
on  deferred  payments  and  gave  lien  notes.  A.  T.  Stephenson  v.  Stephen 
Lillard 466 


Index.  953 

[References  are  to  Pages.] 

VENDOR  AND  PURCHASER— Continued. 

Vendor's  statement  that  he  will  buy  adjoining  realty  is  promise  not  incor- 
porated in  deed  and  no  ground  for  rescission  of  contract  D.  R.  Burbanks, 
Jr.,  Adm'r,  v.  D.  R.  Burbanks,  Sr.,  AdmV 113 

Where  bond  for  deed  is  transferred,  and  grantor  conveys  realty,  and  pur- 
chaser has  notice  that  his  grantor  has  not  paid  for  land,  and  has  notice  of 
seller's  lien,  such  purchaser  takes  land  subject  to  lien,  and  his  widow's  dower 
right  is  subject  thereto.    George  M.  Adams  v.  Olivia  Collier 323 

Where  grantor  is  neither  non-resident  nor  insolvent,  one  accepting  realty 
conveyance  must  rely  on  warranty.    A.  R.  Hay  v.  W.  G.  Hunter 786 

Where  third  living  heir  is  represented  dead,  innocent  purchaser  from  two 
heirs  entitled  to  credit  of  one-third  of  purchase  price  and  may  retain  it  as  in- 
demnity against  absent  heir's  claim,  or  have  purchase  contract  rescinded. 
Henry  Fisback  v.  Sullivan  &  Burton 423 

Where  title  bond  to  realty  purchased  by  husband  is  given  wife,  she  cannot 
procure  rescission  by  pleading  coverture  nor  can  signors  of  purchase-money 
escape  Hability.    W.  G.  Mills  v.  W.  H.  Chelf 504 

VENUE. 

Failure  to  except  to  change  of  venue  or  object  to  court  where  sent  prohibits 
raising  of  question  in  Court  of  Appeals.    L.  F.  Saunders  v.  R.  H.  Gale 500 

Party  may  waive  right  to  change  of  venue  by  consenting  that  no  change  be 
applied  for.    Paducah  Gulf  R.  Co.  v.  B.  E.  Adams 100 

WEAPONS. 

Indictment  for  carrying  concealed  weapons  good  when  made  in  language  of 
statute.    Commonwealth  v.  C  O.  AUard 727 

Unnecessary  to  aver  defendant  not  within  exceptions  provided  for  in  statute 
concerning  concealed  weapons.    Commonwealth  v.  C.  O.  Allard 727 

WILLS. 
See  Executors  and  Administrators. 

Capacity  to  Execute. 

Moral  character  of  witness  is  issue  only  when  called  in  c(Mitesting  will. 
Isaac  Patterson  v.  David  C.  Snyder 41 

To  assert  that  testatrix  was  of  naturally  low  order  of  intellect  does  not 
prove  mental  incapacity.    Isaac  Patterson  v.  David  C.  Snyder 41 

Form  of  Will. 

Will  invalid  where  vacant  page  is  left  above  subscription,  but  will  with 
blank  page  in  middle  of  instrument  and  signed  at  close  is  prima  facie  valid. 
Mary  F.  Higgins  v.  Matilda  A.  Powell 768 


954  Index. 

Lost  WUU. 

[References  are  to  Pages.] 

WILLS — Continued. 

In  a  lost  will  trial,  juror  related  to  testator  and  parties  to  suit  subject  to 
challenge,    A.  T.  Aulick  &  Wife  v.  T.  P.  Fishback 457 

Paper  written  from  memory  by  draftsman  of  lost  will  may  be  referred  to  by 
draftsman  as  witness,  but  not  read  to  jury  in  evidence.  A.  T.  Aulick  &  Wife 
V.  T.  P.  Fishback 457 

Proof  of  contents  of  will  destroyed  by  fire  after  probate.  Henry  Crcason 
V.  Nancy  Harrington 48 

Construction, 

After  death  of  two  life  tenants,  third  is  entitled  to  entire  estate  during  life. 
E.  E,  Spencer  v.  Carrie  Spencer 618 

Construing  of  clause  in  will.    H.  H.  Klair  v.  Malind  Asby 894 

Conveyance  to  one  "and  to  her  issue"  conveys  fee  simple.  William  A. 
Moore  v.  Bowmer  Florence 2 

Devise  over  in  event  of  preceding  devisee's  death  refers  to  event  happening 
in  testator's  life  time.    John  G.  Wills  v.  W.  S.  Franklin 185 

In  clause,  "and  his  heirs  by  his  present  wife  to  have  and  to  hold  to  him  and 
his  heirs  by  his  present  wife  forever,"  the  word  "heirs"  construed  to  mean 
children.  Person  named  and  his  children  took  present  absolute  estate  in  land 
devised.    Gillie  A.  Glover  v.  Mary  Carter 675 

Intention  of  testator  governs  construction.  William  A.  Moore  v.  Bowmer 
Florence 2 

"Should  any  one  of  my  children  depart  this  life  without  issue  of  their  body, 
it  is  my  wish  that  their  part  of  my  estate  revert  to  their  surviving  brothers 
and  sisters"  construed  to  mean  death  of  legatee  between  testator's  death  and 
time  of  distribution.    J.  B.  Covington  v.  C.  G.  Shanklin 346 

Where  testator  does  not  dispose  of  fee  of  his  realty,  but  places  property  in 
executor's  hands  to  sell  at  widow's  death  and  divide  money  among  children, 
fee  descends  to  heirs.    C.  Vandergrifft  v.  Aris  Cox 334 

Where  will  provides  for  distribution  of  estate  when  children  are  thirty 
years  old,  executors  may  advance  income  for  maintenance,  but  not  principal, 
before  then.    W.  P.  Fogle  v.  J.  M.  Fogle.  Ex'r 411 

Rights  of  Legatees  and  Devisees. 

Debtor  may  make  will,  but  devisees'  interests  subject  to  payment  of  testa- 
tor's debts.    Hiram  Lunsford  &  Wife  v.  Lewis  Stamper 538 

Devisee  may  join  with  husband  to  convey  realty  devised  to  her  by  will, 
wherein  provision  is  made  that  her  husband  is  not  to  control  or  dispose  of 
same.    James  Graham  v.  J.  R.  Moore  &  Wife 271 

Devisees  must  be  parties  to  creditors'  proceedings  involving  their  interests. 
Hiram  Lunsford  &  Wife  v.  Lewis  Stamper 538 

Where  children  of  full  age  convey  realty  to  purchaser  who  holds  it  adversely 
for  more  than  thirty  years,  his  title  is  good.  Statute  of  limitations  bars  action 
to  recover  from  him.    C.  Vandergrifft  v.  Aris  Cox 334 


Index.  955 

[References  are  to  Pages.] 

WILLS — Continued. 

Maintenance  of  Children. 

Life  estate  of  widow,  who  has  burden  of  children's  maintenance  out  of 
same,  not  to  be  spent  for  self  nor  given  to  one  child.  James  M.  Forsythe^ 
Jr.,  V.  Aaron  Alexander's  Ex'r. 486 

Power  of  Sale  Under  Will 

Executor  may  name  person  to  make  sale  directed  by  will,  where  will  does 
not    Pat  Shaugherssey  v.  William  Huffman's  Adm'r 713 

Contest  of  WUL 

Executor  who  in  good  faith  attempted  to  sustain  will  entitled  to  costs  out 
of  the  estate.    W.  P.  Cundiff  v.  W.  B.  CundifF 691 

WITNESSES. 

Devisees  competent  witnesses  in  contest  between  executor  and  claimant 
against  estate.    Samuel  Lusks  v.  D.  M.  Anderson  &  Wife 266 

Error  for  court  to  charge  jury  to  discredit  witness  shown  to  be  without  gen- 
eral moral  character  unless  corroborated  by  the  other  evidence.  Thomas  S- 
Morgan  v.  Henry  Wood 778 

Examination  of  impeaching  witness  confined  to  general  reputation  of  person 
sought  to  be  impeached.    E.  H.  O'Daniel  v.  J.  P.  Flannigan 173 

Party  may  impeach  witness  by  proving  statements  out  of  court  contrary  to 
testimony.    E.  H.  O'Daniel  v.  J.  P.  Flannigan 173 

Party  producing  witness  under  necessity  may  contradict  him  by  other  evi- 
dence.   Thomas  S.  Morgan  v.  Henry  Wood 778 

Party  to  action  against  executor  to  testify  only  to  facts  occurring  after  de- 
cedent's death,  unless  called  upon  by  personal  representative  to  testify  as  to 
transactions  or  conversations  with  decedent  Samuel  Lusks  v.  D.  M.  Ander- 
son &  Wife 267 

Where  infant  is  party,  defendant  is  not  competent  witness.  W.  K.  Denny 
v.  Alma  Miller 144 

Who  best  qualified  to  state  condition  of  person's  health.  Mississippi  Valley 
Life  Ins.  Co.  v.  R.  H.  Morton SS6 


y