Green v. Preston

7 Ky. Op. 629, 1874 Ky. LEXIS 253

• Court: Court of Appeals of Kentucky
• Decided: March 28, 1874
• Status: Published

Opinion

Opinion by

Judge Lindsay:

The only explanation T. R. Green offers for sending portions of his stock of groceries to Mobile and St. Louis, is that he was advised to send whisky to Mobile 'by James, the agent for appellees. This explanation is inconsistent with the statement made by him while on the way from Milburn to Columbus, that he was taking it to the latter place to return to his merchants because it was not the quality he had ordered.

When we connect this statement with the fact that the three arid óne-half barrels in controversy were not sold at Mobile, but were shipped bade to Columbus to the address of his brother, William Green, we can scarcely escape the conclusion that the whisky was sent away for the purpose of getting it into the possession of William Green with a shadow of claim of ownership-, in order that it might be held against T. R. Green’s creditors. The claim- of William Green was not made out. He does not distinctly allege that anything was owing him on account of the mortgage debts, at the time he claims to have purchased the whisky. He attempts to show that he was to pay on it by entering a credit 'on this mortgage debt. Neither his petition nor the mortgage exhibited show any such credit, nor does he prove in any way that it was ever given.

Bradley, for appellants. Moss, for appellees.

Considering all the facts developed we cannot adjudge that the court below, which seems to have been substituted for a jury, decided against the weight of the evidence on this branch of the controversy.

The failure of the deputy clerk at Columbus to endorse on the petition the time it was filed, did not ipso facto• destroy the validity of the attachment. Upon motion to quash for" this reason, the court should have allowed the endorsement to be made. The statute on this subject is directory, and not mandatory.'

Judgment affirmed.