Duncan research files of
"Decisions of the Court of Appeals of the State of Kentucky, March 1st 1801 to January 15, 1805, inclusive" ("Kentucky Reports") by Harvey Myers, 2nd edition (1st edition, Achilles Sneed, Vol.1); Vol.2, pgs.262 to 264 (California State Law Library 12/2003)
HENRY DUNCAN v. JOHN FINNYHORN and wife; Court of Appeals of Kentucky; 2 Ky. 262; 1 Sneed (Ky) 262; June 10, 1803, Decided.
Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Jefferson county.
(Opinion:) It will be first necessary to observe upon an objection which was started by some of the bar, "that this court ought not to reserve a judgment because an inferior court granted a new trial improperly."
This court, in the cases of Bush and Daniel and Ship and Radcliff, determined that they had a right to reverse a judgment given by an inferior court, when they refused to grant a new trial upon a proper case made out by a bill of exceptions. A motion for a new trial is an application to the sound, legal discretion of a court, and wherever it appears that this discretion has been improperly and illegally exercised, their decision is subject to the control of a superior court, nor can this court discover any substantial reason why it should interfere where a new trial has been improperly refused and not interfere where it has been improperly granted -- the right exists in both cases or in neither. It is conceived to exist in both where a proper case is clearly made out by a bill of exceptions.
The error assigned in this case is, "that the court below erred in setting aside the first verdict found in the cause and granting a new trial, whereas, they should have rendered a judgment on the verdict.
The judges of the inferior court, in granting this new trial, were governed by different reasons. One judge was of opinion that the verdict would have been a good one, had it not been for the circumstance of the defendant's pushing into the house, but on that account, had he been one of the jury, he would have been for finding fifteen or twenty dollars damages; the other judge was of opinion there ought to be a new trial because the defendant's wagoner was one of the jury. Let these reasons be examined and compared with those upon which new trials have been usually granted. The opinion of the one judge may be considered to embrace two points: The one, that of the defendant's pushing into the house, the other, the damages. As to the first, this is an action of trespass, assault and battery committed on the body of the wife of the plaintiff, and not trespass for forcibly entering the house of the plaintiff; yet that circumstance might properly have been used in aggravation of damages in the suit. As to the damages, the verdict is for the plaintiff, and one penny damages. The judge is of opinion that had it not been for the aggravating circumstance of forcing into the house this would have been a good verdict, but on account of that aggravation, had he been on the jury, he would have given fifteen or twenty dollars damages. This verdict then can not be considered as so outrageously wrong as that all men upon first blush would exclaim against it, and this seems to be the rule laid down in granting new trials for excessive damages, which applies forcibly where an application is made for a new trial on account of insufficient damages. In actions of tort which sound entirely in damages, there is no certain rule by which the measure thereof can be ascertained by a court, and is a sound reason why a court should not interfere either on account of excessive or insufficient damages, the jury is the constitutional tribunal to ascertain them.
The reason of the other judge seems not to be well founded, for if it was an objection at all, it could only be a cause of challenge, which in many cases is not a reason for granting a new trial, nor is it conceived to be a good one in this. Upon an attentive examination into the nature of the action, the evidence, facts and circumstances of this case, this court is of opinion that the new trial was improperly awarded. Wherefore, it is considered by the court that the judgment aforesaid be reversed and set aside with the subsequent proceedings thereon; that the cause be remanded to the Jefferson circuit court with directions to enter up a judgment on the first verdict, and that the plaintiff recover of the defendants his costs in this behalf expended, which is ordered to be certified to the said circuit court.
"Reports of select cases decided in the Court of Appeals of Kentucky" ("Kentucky Reports" [Vol.] 33 - DANA III) by James G. Dana, in 9 Volumes, all the cases reported in the year 1835, Vol.III; Vol.33, pg.538 to 539 (California State Law Library 12/2003)
SNEED, ANDERSON & CO. vs. KELLY'S Executor; Court of Appeals of Kentucky; 33 Ky. 538; 3 Dana 538; November 3, 1835, Decided.
From the Circuit Court for Jefferson County. COUNSEL: Mr. Duncan for appellants: Mr. Sayre for appellee.
Chief Justice ROBERTSON delivered the Opinion of the Court. "SNEED, ANDERSON and Co." having sold tobacco, which had been consigned to them by Kelly, to sell as commission merchants, and "Anderson, Duncan and Co." composed of the same persons who constituted the firm of "Sneed, Anderson and Co." having written to Kelly, that his tobacco had been sold, and that there remained a balance of about a hundred and sixty dollars in his favor, which they would pay to his order -- he, afterwards, drew on "Sneed, Anderson and Co." for the amount thus stated as the true balance, and they protested the order; and thereupon, Kelly having died, his executor brought an action of assumpsit against "Sneed, Anderson and Co." and upon the trial, recovered a judgment for the whole amount of the balance, as stated in the letter, and legal interest thereon. To reverse that judgment, this appeal is prosecuted.
The first objection urged against the judgment, by the counsel for the appellants, is, that an acknowledgment by "Anderson, Duncan and Co." was no evidence against "Sneed, Anderson and Co." But this objection is, in our judgment, more specious than solid. "Anderson, Duncan and Co." being, in fact, "Sneed, Anderson and Co." their letter was prima facie evidence against the appellants.
But the next objection is entitled to more effect. After the appellants had proved facts tending to show, that the stated balance had not been collected from the purchaser, and that the letter was written under a belief that the whole amount of sales had been received, and also, that it was the custom to sell on credit, and pay only when the amount of sale had been collected, unless the consignees had guarantied the sale, or otherwise been restricted, which does not appear to have been the case here, -- the Circuit Judge excluded all this evidence, and instructed the jury to find, against the appellants, the amount of the balance as stated in the letter.
In this, we think, the Circuit Judge erred. If, according to the tendency of the excluded evidence, the consignment was not del credere, but general and customary, and the custom of merchants at the place of sale was as stated, and the letter was written on the erroneous belief, that the whole amount of sales had been collected -- the jury might have found for the appellants, if, also, they had believed, as they might have done, that they would not have assumed to pay, had they known that the balance, which was assumed, had not been collected; for there is no proof that the drawee of the order had seen the letter, or took the order, as a bill of exchange, on the faith of the promised acceptance.
Wherefore, as the jury had a right to consider the evidence, and determine as to its proper effect, the Court erred in rejecting it, and in peremptorily instructing them to find for the appellee. And therefore, the judgment must be reversed, and the cause remanded for a new trial.
"Reports of select cases decided in the Court of Appeals of Kentucky" ("Kentucky Reports" [Vol.] 36-37 - DANA VI-VII) by James G. Dana, in 9 Volumes, Vol.VI; Vol.36, pg.295 to 296 (California State Law Library 12/2003)
DUNCAN vs. The COMMONWEALTH; Court of Appeals of Kentucky; 36 Ky. 295; 6 Dana 295; April 24, 1838, Decided.
From the City Court of Louisville.
COUNSEL: Mr. Duncan for appellant: Atto. Gen. Morehead for the Com'th.
Chief Justice ROBERTSON delivered the Opinion of the Court. UPON an indictment against Frederick A. Kaye and Coleman Duncan, for an affray, the former was acquitted, on a plea of not guilty, and the latter having pleaded a former conviction upon an indictment for an assault and battery, and averred that the affray charged against him, and the assault and battery for which he had been convicted, were one and the same, the Commonwealth traversed the alleged identity; and, upon the issue thus concluded, the jury found him guilty, and assessed against him a fine of one hundred and twenty five dollars; for which the Court rendered a judgment, now sought to be reversed.
As an affray is a disturbance of the public peace by a fighting with the mutual consent of the combatants, it would be intrinsically improbable that a conviction for an assault and battery -- which would not be authorized unless there had been a trespass without the consent of the person injured -- had been adjudged as a punishment for an act which should be deemed an affray.
But, moreover, it was abundantly proved by oral testimony on the trial in this case, that the assault and battery for which Duncan had been convicted, had been committed several days prior to the affray for which he was indicted; and, as the record could not conclusively identify the offence for which he had been convicted with that with which he was afterwards charged, oral testimony was perfectly competent for the purpose of showing whether the acts had been identical, or whether they had been, as they appeared from the records of them prima facie to have been distinct, and committed at different times.
A novel assignment not being admissible in a criminal case, the proper and only proper mode of replying to the plea of former conviction, was to traverse the alleged identity. And the replication filed in this case, though informal, was substantially a good traverse of that fact, and concluded a substantial and material issue.
But we will not decide the merits of the case, because, in our opinion, we have no revisory jurisdiction over a prosecution for an affray according to the common law; which prescribed imprisonment as a part of the punishment for such an offence.
Wherefore, for want of appellate jurisdiction, the appeal to this Court must be dismissed, without costs.
"Reports of selected civil and criminal cases decided in the Court of Appeals of Kentucky" cases decided at summer term 1868 and winter term 1868; by W.P.D. Bush, Vol.IV; Kentucky Reports, Vol.67, pgs.294 to 298 (California State Law Library, Sacramento, 2/2004)
BANK OF KENTUCKY vs. DUNCAN; Court of Appeals of Kentucky; 67 Ky. 294; 4 Bush 294; December 4, 1868, Decided.
Case 58 - Petition Equity - Dec. 4.
APPEAL from Louisville Chancery Court.
CHIEF JUSTICE WILLIAMS delivered the opinion of the Court:
There are two important questions in this case:
1. Was Duncan responsible to the bank as indorser on Morehead's bill of exchange for three thousand one hundred dollars, which had been dishonored, or was he released for want of due notice?
2. Was the bank responsible to Duncan for two thousand nine hundred and twenty-one dollars and twelve cents, money collected for him whilst he was engaged in the military service of the late "Confederate States of America," and in rebellion against the United States, it being collected on a check drawn by the Bank of Virginia, at Richmond, on the Bank of America, New York City?
The bill of exchange was drawn at Louisville, Ky., and accepted by Morehead, August 30, 1860, at four months' time, payable at the house of J. J. Pierson & Co., New Orleans, Louisiana.
Duncan, in his answer to the suit and attachment of the bank, denies he had any notice of or knew that the bill of exchange had been dishonored
The evidence of notice to Duncan, which was received without objection, consists of the following memorandum made by the clerk of the bank, since dead, whose duty it was to deliver notices: "Received January 8, 1861, with notices directed to C. S. Morehead and Blanton Duncan. Same day I delivered notice at the residence of Blanton Duncan, left with his daughter; also, I left notice at the office of C. S. Morehead with his son, he being absent.
The evidence shows Duncan had only two daughters, and these respectively of the ages of four and seven years.
It is said in Story on Bills (sec. 297), "If the notice is to be given to a party in or near the place of the dishonor of the bill, and it is not sent by the general post, it should be sent to, or given at, his place of domicil, or his place of business, and either will be sufficient."
In Bank of U.S. vs. Merle et al. (2 Rob. 117), the Supreme Court of Louisiana held, that a notice left at the domicil, or place of business, or left in the hands of a slave in the house, was sufficient. The court further stated that they regarded the well-settled law to be, that the notice must be personal, or left at his residence or place of business.
And in Manaden's adm'r vs. Kitchen (3 Rob. 261) the same court held the notary's certificate sufficient which showed that notice of the protest was left at the indorser's domicil, he being absent. It was objected that this did not show that the house was shut up, or, if open and inhabited, that the notice was left with any one in the house; but the court held that such language implied that he found the house open, and that though it was customary and perhaps proper to name the person with whom it was left, yet it was sufficient to mention that the notice was left at the party's domicil.
And in Franklin vs. Verbois (6 La. 727) the court held the statement that notice was executed by delivering the letter for G. de Montague to a person at her house sufficient.
And in Bank of Louisiana vs. Mansker (15 La. 115), a certificate stating that notice was left at defendant's store was sufficient, notwithstanding it was urged as irregular and insufficient, because it neither showed personal service nor that it was left with a proper person.
In Coulon vs. Champlin (15 La. 544), the certificate that notice was left at defendant's domicil with a colored woman, he not being in, and there being no white person in or about the premises, the court said: "It has been held by this court that notice of non-payment given indorsers, by leaving it at their dwellings, is sufficient."
In Cana vs. Friend (2 Cr. U.S. Cir. Ct. R., 370), held the evidence of the notary was sufficient when he testified that it was general practice to call at the residence of the indorser, and if he was not at home, to deliver notice to any person who came to the door where he knocked, and to request such person to deliver it to the indorser.
In Lord vs. Appleton (15 Me. 270), notice was left at defendant's office, with a person there supposed to be a partner, but who in fact was not, nor did it appear who he was, yet this was held good, as the office being open, the person with whom it was left must be presumed to be lawfully there, until it should otherwise appear.
All these cases go to show that leaving notice at the domicil or place of business, whether with some one or not, is to be prima facie deemed serving or executing the notice.
In Parsons on Notes and Bills, 499, it is said notice left at place of business or abode of the party, with any one who is found there, will, ordinarily, be sufficient.
We think the great current of American authority establishes, that the leaving a notice at the place of abode or business of a party, with any one who may reside there or be a member of the family, of sufficient age and discretion to take care of it, should be regarded as a delivery to the person; or, if it is not shown that any one was then within the premises, the leaving it at such place would be so.
The only serious difficulty in this case is to determine which of the daughters should be presumed to have received it, and whether either was of sufficiently mature years.
It may fairly be presumed from the memorandum, that the one to whom it was delivered was the one that responded to the call, and of sufficient intelligence to inform the clerk that she was Duncan's daughter; for this is the only source made known to us by which he became possessed of such information; therefore, it may fairly be presumed that it was the elder of the two, and that she was of sufficient age and intelligence to deliver it to her father. We therefore regard the liability of Duncan as fixed on said bill of exchange.
As the bank gave Duncan credit for this money collected on said obligation, and is entitled only to a judgment for the remainder, it becomes useless to discuss or decide the other question presented on Duncan's cross-suit and the reply thereto, though one of public interest.
Wherefore, the judgment is reversed, with directions for further proceedings consistent herewith.
"Reports of selected civil and criminal cases decided in the Court of Appeals of Kentucky" cases decided at summer and winter terms 1872; by W.P.D. Bush, Vol.IX; Kentucky Reports, Vol.72, pgs.580 to 589 (California State Law Library, Sacramento, 2/2004)
DUNCAN, &c. v. KENNEDY, &c.; ANDERSON, trustee, &c. v. CLARK, &c.; Court of Appeals of Kentucky; 72 Ky. 580; 9 Bush 580; June 25, 1873, Decided.
Cases 11, 12 - Petitions Equity - June 25.
APPEALS from Louisville Chancery Court.
CHIEF JUSTICE HARDIN delivered the opinion of the Court.
John L. Martin died in 1854, the owner of a large estate, consisting of land, slaves, and personal property, mostly situated in the states of Kentucky, Indiana, and Mississippi, the decedent's residence and much of the real estate being in Louisville, Kentucky. Having no children living at his death, his only surviving descendants and heirs at law were the following four grandchildren and one great-grandchild; viz., Blanton H. Duncan, the son of the decedent's daughter Patsy Duncan, deceased; Orville M. Anderson, Patsy D. Anderson (subsequently the wife of R. Ten Broeck), Kate M. Anderson (now the wife of Thomas L. Kennedy), children of the decedent's daughter Nancy O. Anderson; and Pattie A. Field (now the wife of B. J. Clay), she being the daughter of Charlotte Field, deceased, who was the daughter of Orville Martin, a son of J. L. Martin.
John L. Martin left a will, written by himself, and published in 1852, the construction of which is involved by the questions now before this court for decision.
The testator, after making, in the first clause of his will, some provision for his wife, who was then living, directed and devised by the second clause as follows:
"All the houses and lots that I now own, or that I may hereafter purchase, in Kentucky or Indiana, it is my will that my executors, hereafter named, shall lease to good tenants until the 1st day of January, 1872, and the proceeds, when collected, to be divided as hereinafter directed, reserving always a sufficient sum to keep the tenements in good order and good repair."
And in the third clause of the will he directed that certain tracts of his lands be sold, and debts due from particular individuals collected, and that the proceeds be invested in productive real estate in the city of Louisville, and that the same be leased to good tenants until the 1st day of January, 1872, upon the terms and conditions directed in said second clause.
And in the fourth clause of the will he provided for the management of his plantation of about two thousand acres in the state of Mississippi, with his slaves and stock and other personal property thereon, until the 1st day of January, 1872, and directed that the net proceeds thereof be divided as provided for in subsequent clauses of the will.
After providing in the sixth and seventh clauses of the will for the emancipation of his slaves on said plantation, and their removal and colonization at the expense of the estate, to be derived from the plantation, he directed and devised in the seventh clause as follows:
"And the plantation, negroes, and stock of every character and description shall be divided among the heirs hereafter named; but I should prefer the plantation kept up and carried on, on joint account of the heirs, until the 1st day of January, 1880; but I leave this optional with a majority of my heirs."
In the eighth clause of the will provision is made for the care and maintenance of the testator's old and infirm slaves; after which, and by the ninth clause, he devised and directed as follows:
"Bank and other stocks that I now own, or that I may hereafter purchase, unless disposed of prior to my death, shall remain in my name for three years after my decease, when it shall be divided as hereinafter directed. Dividends from stocks, proceeds for rents, and proceeds of crops from plantation shall be paid over every three, six, nine, twelve, or fifteen months, viz.: over -- Thomas Anderson, trustee for Kate Kennedy, one fifth; Orville M. Anderson, one fifth; Patsy D. Anderson, one fifth; B. H. Duncan, one fifth; P. A. Field, Colonel C. J. Field, in trust, one fifth.
"None of the five above-named nor any other person or persons shall have power or authority to alienate or encumber any part of my estate, or to anticipate the rents of houses, dividends on bank or other stocks, or the stock that remains in my name, for three years after my decease, when, from this clause, it shall be divided among the five above-named, giving to each one fifth. Nor shall he or she, or any wife or husband he or she may have, have any power or authority to sell or convey, nor shall any part or parcel of my estate, real or personal, be liable for his, her, or their debts; but should any of the above-named five die without issue, then and in that case to be divided among the survivors."
From the death of the testator until the 1st day of January, 1872, the executors named in the will, or part of them, acted in the discharge of the duties and trusts therein devolved upon them, and by investments made in pursuance of the third clause of the will added largely to the real property of the estate in the city of Louisville.
It appears also that they managed the plantation and slaves in Mississippi in accordance with the directions of the will, except that they were interrupted in doing so by the late civil war and its results.
In 1857 Orville M. Anderson, one of the five devisees named in the will of J. L. Martin, died, leaving a will in which, after making certain specific bequests, he devised all the residue of his estate, described as including the one fifth part of J. L. Martin's residuary estate, to George Anderson, in trust for the sole and separate use of his daughter and only child, Mary Anderson, who subsequently intermarried with M. Lewis Clark.
This suit in equity was instituted by Blanton H. Duncan for a partition of the estate, and to have allotted to him in severalty one third part thereof, which he claimed as having descended to him from J. L. Martin, subject only to restrictions, trusts, and encumbrances imposed by the will. The other parties in interest being brought before the court, the following questions were, by appropriate pleading, presented for its decision:
1. As between Duncan and Clay and wife, who represented two of the three children of the testator on the one side, and the other parties, representing the other of said children on the other side, did the will operate to devise the whole estate, or leave that part of it not specifically disposed of to pass by the law of descent to the respective descendants of said three children of J. L. Martin?
2. If the testator did not die intestate as to any part of his estate, but devised equal or particular interests therein to the five persons named in the ninth clause of the will, were those interests vested or contingent before the first day of January, 1872; and whether vested or contingent, were the estates of those in whom they might then be vested severally subject to be defeated in the event of the death of the devisee without issue?
The court below upon final hearing was of the opinion that the whole estate was devised, and that the will directed an equal division between said five devisees to be made as to the real estate on or after the 1st of January, 1872, "as between the survivors of them, if any of them were then dead without leaving issue," but "that until that time their rights were altogether contingent, and consequently no part of the estate passed by O. M. Anderson's will; but that on the 1st of January, 1872, their contingent interests became absolute in the survivors and Mrs. Clark."
From a judgment directing a partition in accordance with these conclusions Duncan and Clay and wife have appealed to this court, and W. G. Anderson, as trustee of Mrs. Clark, has also prosecuted an appeal, and both appeals have been heard and will be determined together.
The first and most important inquiry here, as in the court below, is as to the meaning and intention of the testator touching the disposition of his real estate. That intention, whether it was to devise the estate in a particular way or die intestate as to it, must, according to the well-established rules of construction, be judged of exclusively by the words of the instrument as applied to the subject-matter and surrounding circumstances.
Although J. L. Martin was certainly a man of vigorous intellect and fine business capacity, he was, as the will intrinsically shows, unskilled in the use of words of particular legal import, as well as in the preparation of legal instruments; hence the holographic will before us for construction, though very explicit as to many particular purposes of the testator, is peculiarly vague and indefinite in almost all of its provisions relating to the ultimate division of his large and valuable real estate among his descendants, which might be supposed to have been his paramount object in making his will.
In the argument for the appellants the conclusion is urged that from the care and even precision with which the testator provided for the welfare of his slaves, the management of his plantation in Mississippi, the distribution of incomes, and the preservation of the real estate, and its protection from improvident disposition in the hands of his beneficiaries, he has manifested a purpose of intestacy as to his real estate, particularly that in Kentucky and Indiana. But it seems to us that this evidence of particularity on the part of the testator conduces equally well to prove that if it was the intention of J. L. Martin, notwithstanding his will, to leave his real estate undevised and to pass by descent to his heirs at law, he would have taken care to express that intention in the will; whereas, on the contrary, although the real estate is repeatedly mentioned in the will, that instrument contains no expression excluding such estate from its operation. But in our opinion the entire will, so far as it relates to the real estate, not only implies an intention on the part of the testator to devise it, as well as the income arising from it, but in the ninth clause he expressly did so by the words "it shall be divided among the above-named five, giving to each one fifth;" the pronoun it having reference to the real estate, as well as rents and dividends mentioned in the preceding words of the same sentence.
But although we concur with the chancellor of the court below that the testator devised his whole estate, and directed the real estate to be divided equally between his five named descendants on or after the 1st of January, 1872, we can perceive no maintainable ground for either the conclusion that the will vested the estate in the executors, to be held by them until the 1st of January, 1872, or the further conclusion that until that time the rights of said five named devisees "were altogether contingent." The will certainly devolved on the executors important powers and trusts appertaining to the estate; but, as we construe its provisions, it vested in them no particular estate in the property; and although it postponed the division of the real estate until the 1st of January, 1872, it operated to vest an estate in fee in each of said five devisees, subject to the restrictions imposed by the will and the powers and trusts conferred on the executors, and subject also to be defeated in the event of the death of the devisee "without issue" capable of inheriting, as provided for in the ninth clause of the will.
We concur in what seems to have been the conclusion of the court below, that the conditional devise over to the survivors of the devisees, in the contingency of the dying of any of them without issue, had reference to the 1st of January, 1872, the time contemplated by the testator for the division of the real estate, and could not thereafter take effect.
But we are of the opinion that the court erred in adjudging that Mrs. Clark took a fifth part of the estate in litigation as a devisee of J. L. Martin, and that the will of her father, O. M. Anderson, did not operate to pass the same to W. G. Anderson, as her trustee, for her sole and separate use.
On this branch of the case we will only add, to prevent misapprehension, that while there is a substantial analogy between this and the case of Wren v. Hynes's adm'r (supra) as to the limitation placed on the devises over, to take effect upon the failure of the estates first devised, by the death of the devisees within the time to which the alternative devises over referred, that case differs essentially from this in the fact that in that case the devise was in effect to certain persons or their heirs -- in other words, their issue -- should any of them die leaving issue within the prescribed period of survivorship; whereas in this case there is no devise over to the issue of either of the five devisees of J. L. Martin, nor any failure of their titles anticipated to give effect to the contingent devise over, unless some of them should die without issue, which event did not happen.
The sequence of the foregoing views and conclusions is that there is no error in the judgment to the prejudice of the appellants B. H. Duncan and B. J. Clay and wife, but that it is erroneous as to the rights of Mrs. Clark and W. G. Anderson, her trustee.
Wherefore the judgment is affirmed on the appeal of Duncan and Clay and wife, and reversed on the appeal of the trustee Anderson, and the cause is remanded for further proceedings not inconsistent with this opinion.
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