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Practice and Pleading.

assignee substituted for that of the plaintiff, security should be given for the past as
well as future costs.-Ib.................

............. 279

20. A statement in an answer that, at the time of the execution of the note sued
on, the defendant was an infant under the age of 21 years, is sufficient. It is not
necessary to aver that the note was voidable.—Stern vs. Freeman.......................... ..... ....................309
21. Where the plea of infancy is relied on in the defendant's answer to a suit upon
a note, the plaintiff has a right to prove a ratification of the contract, without aver-
ing it in his pleadings. See opinion for a discussion of the question and reference to

.........309

22. Section 106 of the Civil Code, which provides that every action, except those
enumerated in the previous sections, "may be brought in any county in which the
defendant, or one of several defendants, resides or is summoned," does not change
materially the former law on the same subject. It does not authorize judgment by
default against a defendant served in another county, except where the cause of ac-
tion is local, or where it affects himself and another served in the county where the
action is brought.-Randall vs. Shropshire

23. An objection to the misjoinder of causes of action is waived unless taken in
the manner prescribed by the Civil Code; yet such misjoinder cannot have the effect
to give the circuit court jurisdiction over a claim improperly joined against a defend-
ant served in another county, and to render judgment by default against him, al-
though the other defendant is served in the county where the action is brought.-
Ib..

............327

24. The decision in Waller, &c. vs. Martin, (17 B. Mon., 188,) that, in an action
ex delicto against several defendants, some of whom were, and some of whom were
not, summoned, there could be a trial as to the former, and judgment against them,
without any disposition of the case as to the latter, is, in effect, overruled by the de-
cision in Hedger vs. Downs, (2 Met., 160.) This ruling does not apply where all
are summoned. (Civil Code, sec. 402.)-Buckles vs. Lambert............................ 330
25. If several persons jointly commit a tort the plaintiff, in general, has his elec-
tion to sue all or some of the parties jointly, or one of them separately. This rule
has not been changed by the Civil Code.-Ib.

.......

.............330
26. Where no attorney is appointed to defend for a non-resident defendant, not
summoned and who does not appear, the judgment against him is erroneous. (Civil
Code, sec. 440; 14 B. Mon., 272.)-Allen vs. Brown

.................342

27. In an action against a non-resident defendant, not summoned and who does not
appear, if the bond, required by section 440 of the Civil Code, is not executed, the
judgment against him is erroneous. (14 B. Mon., 272; 1 Met., 649.)--Ib............342
28. The prosecution of an appeal by a non-resident defendant, not summoned and
who did not appear, is an appearance to the action. Upon a reversal and return of
the cause, for failure to have a warning order, bond executed, or an attorney ap-
pointed, those steps will not be necessary, but the defendant may make defense by
answer or demurrer. (1 Met., 649.)- Ib................
............342

29. A paper containing written evidence of the contract declared on, although in
the record, cannot be considered, if it be not referred to in the petition.—Byassee vs.
372

30. If the petition does not aver that the contract declared on was in writing, nor
refer to any writing, it must be assumed that it was a verbal contract. (15 B. Mon.,
443; 3 Met., 474.)-Ib..............
...........372

31. In an action by the holder of one of the notes given for the purchase money of
a tract of land, to enforce the vendor's lien, all the incumbrances or holders of the

Practice and Pleading-Railroad Companies.

notes are necessary parties. They may assert their liens in their answers, where
they are defendants; and service of process upon such answers is not necessary. In
such cases formal interpleading is not necessary.—Jenkins vs. Smith.

32. The act authorizing cross-
s-petitions, and process to issue thereon, as between
so-defendants, does not affect the principles applicable to the case supra.--Ib......380
33. A writing purporting to have been executed by the defendant, referred to in
and filed with plaintiff's reply to his answer and cross-petition, may be read as gen-
uine against him, unless he denies its genuineness by affidavit before the trial is be-
gun. (Civil Code, sec. 588.)- Wells vs. Lewis.........
.................269

34. In an action upon a covenant to furnish a slave with winter and summer cloth-
ing, an averment that the defendant had "failed to clothe said slave properly," is
not a sufficient assignment of the breach. In such case, judgment by default for the
plaintiff will be reversed.-Skillman vs. Muir's adm'r.............

................ 282

35. In an action for damages for breach of covenant, the plaintiff must prove their
value. Thus, in an action for failing to furnish a slave the clothing stipulated, an
averment that it was reasonably worth a certain sum, must be supported by proof.
It is error to render judgment by default without such proof.-Ib................. 282
36. Where, upon the facts stated in the petition, there is an implied assumpsit to
pay the amount claimed by the plaintiff, the allegation of value need not be proved
upon failure of the defendant to counteract it. (15 B. Mon., 628; 18 Ib., 60.) Other-
wise, where there is no assumpsit, express or implied, to pay the sum claimed. (14
B. Mon., 393; 18 Ib., 216; 1 Met., 558; 3 Met., 196.)-Ib.......

............ 282

37. The Civil Code requires only a statement of the facts constituting the cause of
action. What the law implies need not be averred. (Secs. 118, 144.)-Ib.........282

PUBLIC DEBTORS-

1. The liability of the city of Louisville to the Commonwealth for the $2,000 per
annum required by the act of March 10, 1856, to be paid into the treasury, in consid-
eration of the fines and forfeitures recovered in favor of the Commonwealth in the
eity court of Louisville, is that of a debtor to the Commonwealth, not that of a col-
lector or receiver of public moneys; and judgment cannot be obtained therefor with-
out notice of the motion.-Louisville vs. Commonwealth......

......... 63
2. Sec. 1, of art. 12, chap. 83, of the Revised Statutes, has been superceded by
the provisions of the Civil Code, which prescribes the remedies against defaulting col-
lectors and receivers of the public moneys.-Ib...........

3. See the opinion for a reference to the laws relating to the questions supra.-Ib 63

RAILROAD COMPANIES-

1. A railroad company, authorized by its charter to borrow money on its credit,
necessary to complete the road, but not expressly authorized to make a mortgage
upon its property or franchises to secure the bonds issued therefor, has an implied
power to do so; though it cannot mortgage its corporate existence or any prerogative
franchise conferred upon it. But, the right to build and use a railroad is not a pre-
rogative franchise. A purchaser under its mortgage would take the road, subject to
the terms of the charter designed to protect the public, and would be bound thereby
as fully as the corporation.-Bardstown & Louisville Railroad Company vs. Met-
calfe ......
.............199

2. A mortgage by a railroad company, to secure money borrowed for the construc-
tion of its road, is not opposed to the public policy of this State. This is indicated
by the general course of legislation here upon the subject.—Ib.......................................................................... 199

Separate Estate.

3. That a railroad company voluntarily mortgaged its property to secure the
money which it was expressly authorized by its charter to borrow, and that its bond
holders invested their money upon the faith of the mortgage, relieves the case from
the operation of the decision in Vimont vs. Winchester & Lexington Turnpike Co., (5
B. Mon., 1.) If that decision can be regarded as denying that property or franchises,
in the use of which the public have an interest, can be assigned, the court would
hesitate to follow it in view of other decisions. (4 Litt., 160; 2 J. J. Mar., 227;
1 Dana, 261.)— Ib

.......199

4. The mortgage of a "railroad with all its rights and privileges is authorized un-
der a resolution of its board of directors, which authorized a mortgage of the road
and its property, &c.'" As there was nothing to which the phrase "&c.," could
have been designed to apply, except the franchises, it must be regarded as having
been used to embrace them.-Ib

................ 199
5. An authority to mortgage a railroad and its property must design a transfer of
the right to operate the road.-Ib.............

...........199
6. In a suit to foreclose a mortgage upon a railroad and its franchises, (which au-
thorized a sale upon failure to pay either the interest or principal, to satisfy the
amount claimed and due, but contained no provision that the principal should be-
come due upon failure to pay interest, and the principal is not due,) the bond holders
have a right to a sale for the interest due. If the property was divisible, a sale
should be ordered of so much as might satisfy the amount due. If not susceptible of
division it must be sold or leased as an entiety. (2 B. Mon., 208-9; 5 Paige, C. R.,
40; 1 Ala. R. N. S., 393.)- Ib......................

..............

7. In such case, where the property is worth much more than the amount of the
debt and interest, it should be leased by public auction for the shortest term that will
bring the amount due, and the accruing interest and principal as the same shall be-
come due.
If no one will take it for a term of years, then to be sold absolutely; the
company to elect whether the property should be first offered for a term of years.-
Ib..........

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199

8. In such case, the lessee or purchaser to give bonds with good security persona}
or real, for the purchase money, including the accruing interest and principal of the
mortgage bonds; a lien on the property, or term, to be reserved as additional secur-
ity. If leased, the lessee to give a covenant, with good security, to keep in good re-
pair the road, cars, and other property, not consumable by use, (such as fuel and oil,)
and to return the same to the company at the end of the term in as good condition as
when received. The court, before ordering a lease, to cause an inventory to be
made of the property, its value, condition, &c., to be filed, and declared in the de-
cree conclusive evidence of its condition and value at the time of the lease.--Ib...199

SEPARATE ESTATE-

1. In 1857 a married woman, being the owner of land, not her separate estate,
joined her husband in selling it, and made provision in the conveyance that the pro-
ceeds should be invested in other property for her separate use. A part of the pro-
ceeds were invested in slaves, which were conveyed to a trustee for her separate use.
Held, That the slaves cannot be subjected to the payment of an account against her
for goods sold to her upon the faith and credit of her separate estate.-Hanly vs.
Downing

95

2. A separate estate, whether created before or since the statute, (Rev Stat., chap.
47, art. 4, sec. 17,) cannot be charged in equity for any debt contracted by a mar-
ried woman. (18 B. Mon., 301; 3 Met., 244.)—Ib.....

95

Set-off.

3. Where it was agreed by an antenuptial contract between husband and wife, that
she might hold her estate for her separate use, the statute supra was held not to ap-
ply. (Stites vs. Bryan, Mes. Opin., 1858.) So where the property is secured to the
wife's separate use by post-nuptial settlement. Argu.-Ib..............

4. The statute supra prohibits the sale by a married woman of her separate estate,
purchased with the proceeds of her inheritance, although the conveyance to her gave
her power to dispose of it as if she were an unmarried woman. (17 B. Mon., 55.)—
Ib..........

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95

5. A decree for the sale of land, held in trust for the separate use of a married
woman, is rendered void by a failure to have a report of commissioners stating the
value of her estate, the annual profits thereof, and that her interest requires the sale
to be made. Radford vs. Chamberlain
237

6. The statute which prohibits married women from directly or indirectly creating
any charge or incumbrance upon their separate estates, does not affect the rights and
powers of their trustees with reference to such estates. It speaks only of alienations
by married women.-Lewis vs. Harris........
.............353

7. Before the statute the trustees of a se parate estate could not sell it except upon
an express power of sale, nor could he create any charge upon it except for purposes
authorized by the creator of the trust or approved by courts of equity. These rights
and powers are not affected by the statute supra.—Ib..............

............353

8. It is equitable that trust property, conveyed to the trustee for the separate use
of a married woman, and for which he executed his notes as trustee, should be sub-
jected for the purchase money. Had he paid the debt with his own money he would
have held an equitable lien for his reimbursement. By the execution of the note he
substitutes the creditor to this equitable lien, and thus creates a charge upon the
property for the payment of the debt.-Ib..........

SET OFF-

.........353

1. Two persons, mutually indebted to each other, executed each to the other his
notes of hand for the full amount of their respective indebtedness, with the under-
standing between them that the notes might be used to pay precedent debts, or for
raising money by negotiation. One of the payees assigned one of the notes, and
failed. In a suit by the assignee against the payor he pleaded a note of the same
date executed to him by the assignor, as a set-off. Held, That the set-off cannot be
allowed.-Barbaroux vs. Barker...

2. In such case the payor is bound, because his plea of a want or failure of con-
sideration would be a fraud upon the holder. The principle applies to every case
in which the note has been given to enable the payee to raise money or pay his
debts. The fact that the payor had some additional motive for giving the note, con-
cerning which he has been disappointed, cannot justify him in defrauding the hold-
er. Ib..................................

47

3. Courts of equity would always entertain jurisdiction in cases of set-off, where
the demands were connected, or where the one sought to be set off formed the con-
sideration of the other.-Taylor, &c. vs. Stowell, &c...........
............ 175

4. The only exception to the rule, supra, was, that if the claim proposed to be set
off was for unliquidated damages, the chancellor would not, on account of the mere
connection between the demands, first liquidate the damages, and then make the
set off, where there was a plain and adequate remedy at law. But-

Where the existence of any extraneous fact is shown, calculated to defeat or im-
pair the efficacy of the legal remedy, such as the insolvency or non-residence of the

Sheriff-Slander.

plaintiff or his assignor, the jurisdiction of the chancellor, even in cases of unliqui-
dated demands, was unquestionable.-Ib ..........

..........175

5. The law on the subject, supra, has not been changed by the Civil Code. (2 Met.
Ky. Rep., 143.)—Ib ....

........

............175
6. A demand for unliquidated damages, for breach of warranty of the quality of a
commodity for which the note sued on was given, may be relied upon as an equitable
set off against the note, when the vendor is insolvent or non-resident, even where
the note is in the hands of, and the action upon it brought by, a remote assignee of
the vendor-Ib

............17
7. Quere. Does the defense, supra, amount to a valid counter-claim in an action by
the assignee of the note?-Ib.............
...........175
8. Objection for want of necessary party to an answer containing a set off must be
taken in one of the modes prescribed by the Civil Code, (sec. 123-) otherwise, it is
waived.-Ib........
.............175

9. Every material allegation of new matter in an answer, relating to the set off
therein relied on, where there is no reply, must be taken as true.-Ib................175

SHERIFF-

1. Notice of a motion against a sheriff and his sureties, for failing to pay a county
creditor a claim due him, must-where the claim is ordered to be paid by the court
after the county levy for the year has been imposed-aver that there was in the
hands of the sheriff a sufficient sum to pay the claim, after deducting the previously
allowed claims. But it is not necessary, when the claim is ordered to be paid at the
time the county levy for the year is imposed, to aver that the sheriff had collected a
sufficient sum to pay it and all other claims allowed at the same time.-Thompson vs.
Healy.......

.......257

2. The imposition of the county levy, and the delivery to the sheriff of the lists of
the persons chargeable therewith and of the debtors and creditors of the county, as
required by law, render him prima facie liable, on the 1st of October, to those whose
claims were ordered to be paid at the time the levy was imposed.-Ib.................257
3. On the trial of a motion against the sheriff and his securities for failing to pay
a county creditor a claim due him, the record, containing the list of claims, may be
read in evidence, and it may be proved by the clerk that he delivered a copy thereof
to the sheriff, without producing the list delivered to him.-Ib....................................................................257
4. In such proceeding, the plaintiff must aver in his notice and prove every fact
necessary to show that the sheriff is liable. (18 B. Mon., 621; 3 Met., 347.) It must
be averred that the clerk had delivered to the sheriff a list of the persons chargeable
with the payment of county levy, and the sum to be paid by each, and a list of the
sums due, and from whom due, to the county.—Ib...................................

5. In such case, also, a demand upon the sheriff is necessary-a demand upon the
deputy is not sufficient. But-

6. If no demand can be made upon the sheriff, the creditor can recover from his
sureties the debt, without damages, in an ordinary action, upon showing that the
sheriff collected or might, with due dilligence, have collected a sufficient sum to pay
the county creditors.
.........257

SLANDER-

Argu.-Ib......

1. Slanderous words, of similar import with those declared on, spoken after the
commencement of the action, cannot be relied upon in such action either as a dis-
tinct ground of recovery, or to show 'hat the words charged had been spoken, or to

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