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reasonable time allowed for its disposition." Landers v. Beauchamp, 8 B. M., 494, in
which notice given on the 8th of September was held to be reasonable.

(3) No averment of demand or notice is necessary unless the defendant be an actual or
a quasi tenant, even though he may have acquired possession rightfully ; as, in an action
by a widow whose husband placed the defendant in possession (4 Bibb, 106 ; 3 Dana,
295); or by a remainder-man against the purchaser of a particular estate after termination
thereof. Sale v. Crutchfield, 8 Bush, 636.

6. As to damages, see note (d), ante, page 56, and note 3, ante, page 87.

IX. Petitions in actions on statutory causes of action.

1. Generally,

(1) " When a statute creates a new right without prescribing a remedy, the common
law will furnish an adequate remedy to give effect to the statute right. But when a statute
has created a new right and also prescribed a remedy for the enjoyment of the right, he
who claims the right must pursue the statute remedy." Russell v. Muldraughts Hill, <5rY.,
Turnpike Co., 1 3 Bush, 307; in which it was held that a turnpike company, which was
authorized to charge tolls collectible at its gates, could not maintain an action for tolls against
a defendant who had been -allowed to pass through the gates without paying — there being
no express contract between them.

(2) If a statute give a remedy in the affirmative, without a negative expressed or
implied, for a matter which was actionable at common law, the party may proceed upon
his common law right or his statutory right (1 Ch, PL, 146) ; but not on both. 1 1 Bush,
385; 82 A>., 505.

But when a corporation, as was authorized by its charter, offered at public sale a stock-
holder's twenty shares of stock for installments due thereon ; and two shares were sold
for the installments due on them, and eighteen shares were not sold for the want of bid-
ders; it was held that, though, had all the shares been sold, the right of the corporation
to sue the stockholder would have been destroyed, the sale of two shares, and the offer to
sell all, did not deprive it of its common law right to sue him for the installments due on
the eighteen shares, the right to which, with its immunities and emoluments, remained
in him. Instone v. Frankfort Bridge Company, 2 Bibb, 576.

(3) If the clause of a statute which gives the right of action relied on by the plaintiff
contain an exception with regard thereto, he must show, by proper averments, that the
matter which he insists on does not come within the exception (1 Ch. PI., 229; 1 Bush,
74; 7 fa., 202) : aliter, it the exception be in a different clause from that which gives the
right of action. 78 Ky., 630; 79 Id., 318.

2. As to stating a cause of action on the clause which gives it.

(I) Formerly, the holder of a bill of exchange could not join the drawer and endorser



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112 PLEADINGS — PETITIONS. [TITLE vn.



as defendants in an action thereon; but an act of 1798 (AI. <&* B., 249) authorized such
holder to prosecute an action of debt for " principal, interest, and charges of protest, against
the drawers and endorsers jointly;" and it was held, 1, that though the holder had his
common law right to sue the drawer and each of the endorsers separately ; yet, as he
relied on his statutory right, if he joined any as defendants, he must join all (1 Afar.,
455); ano \ 2, that, as the declaration did not claim "interest and charges of protest,"
but only claimed the principal, the plaintiff could not join a drawer and endorser as
defendants. 7 Man., 400; 2/ /. Af. t 149.*

(2) \ 1, ch. 57, of the General Statutes, gives to the personal representative of a decedent,
if, not being in the employment of a railroad company, his life shall be lost (in this Com-
mon wealth) "ty reason of the negligence or carelessness " of such company, its servants, &c.,
a right to " recover damages in the same manner that the person himself might have done
for an injury where death did «ot ensue ; " and \ 3 of said chapter gives to the widow,
heir, or personal representative of a decedent, whose life is lost or destroyed " by the wil-
ful neglect" of another person, or of a corporation, their servants, &c, the right to recover
" punitive damages" for such loss of life. The only substantial difference between those
sections and §§ 1 and 3 of an act of March 10, 1854, are, I, that \ 1 of ch. 57 confines the right
of recovery to cases of persons whose lives are lost in this Commonwealth ; and 2, that
J 3 thereof gives the right of action to the widow, heir, or personal representative of the
decedent instead of giving it to the personal representative only, as did j 3 of the act
of 1854.

Under those statutes it has been held —

a. That, if the death was caused by an act of the defendant — as, by running a train of
cars over the deceased, or by accidentally shooting him — it is sufficient, in an action on
\ 1, for the plaintiff to allege that the deceased "was killed by the employes of the
defendant carelessly and negligently causing a train of its cars to run over htm, and that
he was not at the time an employe of the defendant " (L. C~£s* {.. R. Co. v. Case's admtr, 9
Bush y 728); and it is sufficient, in an action on £3, for the plaintiff to allege that ." the
defendant by means of his willful neglect shot and killed" the deceased (Chiles v. Drake,
2 Afet., 146) : but, if the death was caused by the defendant's failure to do an act— as, to
keep a bridge in repair — the plaintiff, in an action on §3, must not only allege "willful
neglect," but must state facts showing that it was the duty of the defendant to do the act.
Louinnlle &* Portland Canal Co. v. Afurph/s adrnW, 9 Bush, 529.

0. That, as a general rule, a plaintiff who sues on §3 should.be non-suited, unless he
introduce evidence conducing to prove "willful neglect." Louisville &* Portland Canal
Co. v. AIurphy*s adnir, 9 Bush, 522.

But that, as railroad companies may be held liable for "negligence or carelessness"
under \ 1, or for "willful neglect" under §3, in an action against such company —

" An averment of willful negligence, resulting in the death of a person not an employe
of the company, authorizes a recovery under either section, in case the proof warrants a
recovery at all. If willful negligence be established, punitive damages may be awarded;
if mere culpable negligence, then such damages as the person injured might have recov-
ered if death had not ensued. As to railroad companies or proprietors, unless it be an
employe who is killed, the two sections should be treated as one; and when it is averred
in the petition that the person killed was not an employe, and that the negligence was
willful, the action should be tried as an action to recover damages for personal injuries
not resulting in death, except that, instead of the common law rule, by which the meas-
ure of recovery is to be determined, the jury should be governed by the standards pre-
scribed by the statute. The allegation of willful negligence necessarily includes all
inferior grades, and the jury must determine from the proof whether the recovery is to be

* Those cases have no bearing: on the present rights of holders of bills of exchange. See Code, \ 26,
I cite them for their general bearing on the question under discussion.



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CHAP. II.] IN ACTIONS IN EQUITY. 113

had, if at all, under the first or third sections of the act, and then assess the damages
according to the measure of recovery fixed by the act itself." L. C. &* L. R. R. Co. v.
Case's adm'r, 9 Bush, 733 ; and see 13 Bush, 636.

c. That, in an action against a railroad company, the petition in which alleged "negli-
gence or carelessness," an amended petition, alleging "willful neglect," did not set up a
new cause of action. 9 Bush, 732.

d. That, in an action on {3, it is "necessary to charge 'willful neglect,' either in
express terms or in language which clearly and necessarily implies that high grade of
negligence ; " and it is not sufficient to allege that the defendant did the act complained
of "carelessly, negligently, wrongfully, and unlawfully" (10 Bush, 272) ; or "recklessly,
carelessly, and wantonly" {Id., 679); or through "gross and culpable negligence." 11
Id., 382.

As to what constitutes "willful neglect," within the meaning of the statute, see 2
Duv., 577; 9 Bush, 531; 10 Id., 273 andf&o\ 13 Id., 642; 81 Ky., 413; 83 Id., 128.

e. That it is not necessary for the plaintiff to allege that there was no negligence on
the part of his intestate. 9 Bush, 529.

f. That, in an action on { i v the plaintiff can only recover "compensatory damages"
(4 Bush, 595); that J 3 does not prevent the jury from giving "compensatory damages"
(2 Met., 153); and that, in an action on \ 3, the court has no right to instruct the jury
that, if they find the defendant "guilty of willful neglect," they ought to find punitive
damages. 83 Ky., 127.

g. That a company which owns a railroad and a coal-mine can not be held liable,
under } 1, for negligence of its servants in operating the mine. Claxton's adm'r v. Lex. h*
Big Sandy R. Co., 13 Bush, 636.

h. As to contributory negligence, see 7 Bush, 235; 8 Id., 166; 81 Ky., 413; 84 Id.,
305; 79 Id., 160.

(3) Plaintiff, in order to recover double damages given by a statute for an injury cog-
nizable by the common law, 'must declare upon the statute by reciting it in his petition, or
by concluding " to the damage of the plaintiff contrary to the form of the statute." 79
Ky., 48.

(4) In an action to recover money under a statute concerning "betting on an election,"
an allegation that the defendant made a bet "on the result of an election " was held to be
sufficient. 14 Bush, 633.

(5) The Revised Statutes having declared that bills of exchange payable in bank notes
or currency shall be deemed negotiable, and treated in all respects as if drawn for money,
except as to the value of currency in which they are payable ; in an action on a bill pay-
able "in current exchange," a petition, which described the bill as payable in money, was
held to be good on demurrer. Morrison & Co. v. Tate, I Met.* 569.

C. STATEMENTS OF CAUSES OF ACTION IN ACTIONS IN EQUITY.

As to this, whatever distinctions exist between actions at law and actions in equity
arise from differences between legal and equitable rights and duties, which, as a general
rule, have not been abolished by the Code. See Garret v. Gault, 13 /?. M., 380; Brook-
haven v. Hurst, I Met., 665 ; Bibb v. Bibb, 17 B. M., 307.

I will refer to only a few of those distinctions. Thus, it being a maxim that he who
seeks equity must do equity; if the vendor of land, by executory contract, sue in equity
to enforce his lien for purchase-money, he must set forth the contract and must aver his
ability and willingness to convey according thereto (3 Bush, 186; 12 Id., 101 ; 79 Ky.,
465); though he can maintain an ordinary action fob the purchase-money without such
averments (4 Met., no): and, on the other hand, the vendee can not maintain an equita-
ble action for a conveyance, without averring that he has paid the purchase-money (6
Mm., 673; $y. J. M., 180; 3 Dana, 81), or an excuse for failing to do so, coupled with
an averment of readiness and willingness to pay (1 Bibb, 591-92; 1 Mar., 451; 3 Litt.,

8



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114 PLEADINGS. [TITLE vii.



293; 5 Afon., 527; 7 Id,, 142); though he may maintain an ordinary action for damages
for the vendor's refusal to convey, without making such averments. 3 Litt., 293.

And, forfeitures having always been more repugnant to courts of equity than to courts
of law; whilst, as a general rule, the time for performance of an act is essential at law,
whether the contract be mutual or not, it is not, as a general rule,, essential in equity, if
there be mutuality in the contract (3 A/on., 318; 6 Id., 366; 7 Id., 656; 6 Dana, 231; 2
B. Af., 439; 5 Id., 450; 9 Id., 464; I Duv., 99; 10 Bush, 317 ; 14 Id., 64 to 69; 82 Ky.,
269) ; and, consequently, as shown by the cases just cited, excuses for non-performance at
the stipulated time are often good in equity which would not be good at law. But, if
there be no mutuality in the contract, time is as essential in equity as at law : thus, Magoffin
sold land to Holt for $3,500, with a stipulation that, if, at the expiration of three years
from the date of the contract, Holt should desire to sell the land, Magoffin, upon request
made of him by Holt, would purchase it at the price of $3,500, with interest from the
date of the contract : Holt requested Magoffin to purchase the land twenty-five days after
the expiration of the three years ; and, in an action by him for specific performance, it
was held that he was not entitled to relief; because ** when there is a want of mutuality
in the obligation, time is generally essential and indispensable in equity, as well as accord-
ing to strict and inflexible law." 1 Dm*., 95.

And I will add that the Code has not changed the old rule which required a plain-
tiff in equity, who sought to impeach a settled account (whether settled between the
parties, or by arbitrators, or by the county court), to specify the errors or frauds complained
of. Loesser v.Loesser, 8 1 Ky., 139; Phillips v. Phillips, Id., 147; Tanner v. Skinner, II
Bush, 120.

D. PRAYER FOR RELIEF.

§ 118 of the Code of 1854 declared that the petition must contain "a demand of the
relief to which the plaintiff considers himself entitled," which did not conform to the old
practice either in actions at law or in equity : for that practice allowed bills in equity to
contain a prayer for general relief, in addition to a prayer for the special relief to which
the plaintiff considered himself entitled ; whilst declarations in actions at law, instead of
containing a prayer for relief, concluded with an averment that the plaintiff "hath sus-
tained damage to the amount of , and therefore he brings his suit, &c."

But ? 90 of the present Code not only substitutes a prayer for damages or such other
special relief as the plaintiff in an ordinary action considers himself entitled to, in place
of the averments with which declarations formerly concluded (see note, ante, page 87) ;
but it authorizes plaintiffs, both in ordinary and equitable actions, to pray for general as
well as special relief — concerning which : —

1. As to the necessity of a prayer for relief.

It seems clear, as a general rule, that a plaintiff can not obtain relief which is not
asked for by either a special or general prayer (12 Bush, 436; Howland Coal and Iron Works
Co. v. Brmvn, 13 Bush, 681) ; and in Adams Express Co. v. Milton, n Bush, 49 (in which
defence was made), it was held that, in an action on a contract which does not bear interest,
as a matter of law, and plaintiff's right to which depends on extraneous facts, in order to
"recover interest accruing anterior to the institution of the action, .... it is
necessary that the plaintiff shall ask for that character of relief; otherwise the presump-
tion of law that the claim was not theretofore bearing interest will be allowed to prevail."

But in Bates v. Buchanan, 2 Bush, 1 17, a defendant from whose possession a horse was
taken pursuant to the provisions of title 8, cfiapter 2, filed an answer claiming title, and pray-
ing to be hence dismissed with costs ; and it was held that, having proved title, he was entitled
to judgment for the return of the horse or its value, and damages for its detention.

2. As to the necessity of a SPECIAL PRAYER for relief

Formerly, in actions in equity, although it was usual, it was not necessary, in general,
for the plaintiff to pray for special relief; for, in general, a prayer for general relief would



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CHAP. II.] PRAYER FOR RELIEF. 115

enable him to obtain such decree as his case entitled him to. DaniePs Ch. PI. & Pr., 434,
Per/tin's Edition of 1846.

But, in order to relieve defendants from the necessity of making defence when the
claims against them are just, §90 declares that the plaintiff must demand the specific relief
to which he considers himself entitled ; and that he shall have no other relief, under a
general prayer, if no defence be made.

3. As to what constitutes a defence within the meaning of \ 90.

In Hansford y. Holdham, 14 Bush, 210, it was held that an answer which presented a
counter-claim againsr the plaintiff did not present a defence within the meaning of §90:
but query as to that. It is true that the Code (g 732, subsections 34 and 36) declares that
'* the word action embraces a demand for a set-off or counter-claim," and that "the word
'plaintiff* embraces a defendant who demands a set-off or counter-claim." But an answer
which presents a set-off or counter-claim against the plaintiff is not merely an action; for
no summons upon it is required (§97) ; and a judgment in an ordinary action "does not
prevent the recovery of any claim which was not, though it might have been, used as a
defence by way of set-off or t counter-claim against the plaintiff." \ 17. It can not be supposed
that £ 17 was overlooked by the legislature in enacting §90; though it was probably over-
looked by the court in deciding Hansford v. Holdham : indeed, it is difficult to suppose
that, if attention had been called to \ 1 7, the court would have assumed it as clear (as the
court did) that an answer presenting a counter-claim against the plaintiff is not a defence
within the meaning of \ 90.

4. As to what relief may be granted to the plaintiff under a general prayer (when defence
is made).

Upon this question there has been a conflict of opinion.

In DaniePs Chancery PI. <5r» Pr., 435 (Perfcin's Edition, 1 846), it is said that, in such
cases, relief, under the general prayer, " must be consistent with that specifically prayed,
as well as with the case made by the bill ; for the court will not suffer a defendant to be
taken by surprise, and permit the plaintiff to neglect and pass over the prayer he has made,
and take another decree, even though it be according to the case made by the bill." And
that rule was approved by a dictum* in Crow v. O.&r* N. R. Co., 82 Ay., 136. And see
Rochester v. Anderson, Litt. S. C, 1 43; and Allsmiller v. Fteutchenicht, 86 Ky., 198.

But in Hiern v. Mill, 1 Ves. Jr., 119, Lord Eldon said: "If the bill contains charges,
putting facts in issue that are material, the plaintiff is entitled to the relief which those
facts will sustain, under the general prayer; but he can not desert specific relief prayed,
and under the general prayer ask relief of another description, unless the facts and cir-
cumstances charged by the bill will, consistently with the rules of court, maintain that
relief." And, a vendee of land having sued the vendor for specific performance of the
contract, with prayers for special and general relief, it was held that, though the plaintiff
was not entitled to a decree for specific performance, he was entitled, under the general
prayer, to a decree for rents for occupation of the land. Oldham v. Woods, 3 Mon., 47.
And, a debtor having assigned his property to a trustee for the benefit of all his creditors
pro rata ; several creditors, seeking to obtain a preference over others, filed bills, alleging
that the conveyance was fraudulent, and praying that it be set aside and the property
subjected to their demands, and for general relief; and it was held that, though the con-
veyance was not fraudulent, the plaintiffs, under the prayer for general relief, were entitled
to a decree for their pro rata part of the proceeds of the property. Repplier v. Buck,
<5rY., 5 B. M., 96.. And see the somewhat anomalous cases of Aeilson v. Churchill, 5 Dana,
333; and Basye v. Beard, 12 B. M., 581.

But, "though a plaintiff who prays for special and general relief may resort to his



? A dictum, because the facts alleged, as stated by the court, would not have entitled the plaintiff to
relief, even under a special prayer therefor.



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Il6 PLEADINGS. [TITLE VD.

general prayer in case he can not have the particular prayer; yet, if there be no obstruction
to the particular relief, he can not abandon it, and ask for a different decree under the
general prayer. Allen v. Coffman, I Bibb, 469. In that case the bill was taken pro con-
fesso, but the decision was not placed on that ground.

5. Error of the plaintiff as to the ground on which he is entitled to specific relief
prayed for does not defeat his right thereto. Edwards v. Bohannon, 2 Dana, 98; Thomas
and wife v. If tie, 5 B. M., 590.

6. A prayer for relief in the alternative (which has been sometimes called a prayer in a
double aspect) was formerly, and is now allowable. MUford's Eq. PI., 39; Peck v. Price,
9 A>. L. R., 166.

7. But a contingent prayer for relief 'is ineffectual. Thus, where ft defendant prayed that
his answer might be taken as a cross-bill, "in case the court should be of opinion that he
and the complainant were partners," it was held that "this contingency destroyed the
efficacy of the answer as a cross-bill, because the complainant could not tell when to
answer it." Purdee v. Huston, 6 J. J. Af., 251.

8. As to the mode of praying for relief

No particular words seems to be necessary, either in a special or general prayer.

In an action against a constable for failing to account for several claims placed in his
hands by the plaintiff, the court said: "The second objection to the petition is, that the
prayer is too indefinite. Having, in a preceding part of the petition, stated the claims and
the amount of each one of them, the pleader prays for judgment for the amount of said
claims, with interest due upon each, with ten per cent, damages on the same, &c. This
we think sufficiently definite. The petition contains the data necessary to the corect con-
clusion." 2 Bush, 102.

It seems unnecessary to cite authorities to prove that a prayer for general relief may be
made by adding, after the prayer for special relief, the words "and for all proper relief,"
or any equivalent words. See 80 Ay., 537.



CHAPTER III.

THE DEMURRER.

} 91. Demurrers are special or general.
j 92. special, defined.

2 93-1. general, defined.

2. effect of failure to file,

g 94. amendment of pleadings, after sustaining of.

§ 91 [120, 121]. Demurrers are special or general.
§92 [120, 121]. Special demurrers. — A special demurrer* is an ob-
jection to a pleading which shows (a) —

1. That the court has no jurisdiction of the defendant, or of the
subject of the action (b); or,

2. That the plaintiff has not legal capacity to sue (c); or,

3. That another action is pending, in this State, between the same
parties, for the same cause (d)\ or,

*See g 109 as to filing a special demurrer during vacation.



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CHAP. III.] SPECIAL DEMURRERS. 117



4. That there is a defect of parties, plaintiff or defendant [e). Either
of said grounds of objection, shown to exist by a pleading, is waived,
unless distinctly specified by a demurrer thereto (/), except the objection
to the jurisdiction of the court of the subject of the action, which
objection is not waived by failing so to make it ; but a party failing so
to make it when or before he files a pleading, other than a demurrer, is
liable for all costs resulting from such failure.

(a) When objection to be made by motion instead of by demurrer.
Neither a special nor general demurrer lies, because the party has failed to swear to

his pleading (15 B. M., 630) ; nor because the plaintiff has sued in equity instead of at
law, or vice versa (15 Id., 172; 16 Id., 387) ; nor because an amended petition states a
new cause of action (13 Id., 403) ; nor because several causes of action or grounds of de-
fence are stated in one paragraph (13 Id., 205; 15 Id., 569) ; nor because the statements of
a pleading are so indefinite or uncertain that the precise nature of the claim or defence is
not apparent {Code, \ 134; 78 Ky., 162, 212; but see 78 Ky., 463s nor for a misjoinder of
parties, whether plaintiffs or defendants (18 B. M. t 136) ; nor for misjoinder of causes of
action. Code, # 85 and 86, and notes thereto.

(b) Objection to jurisdiction of the court.

Objection to jurisdiction of the person of the defendant is waived, unless it be made by
a special demurrer, or by answer; aliter, as to jurisdiction of the subject of the action. See
{ 1 18, and notes thereto.

(c) Objection to plaintiff's capacity to sue.

1. In an action by A and B as administrators of G,they alleged they were appointed



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