Miller's Admr. v. Maxville , 1868 Ky. LEXIS 543 ( 1868 )

Opinion oe the Court by

Judge Peters :

The order drawn on Hays, the treasurer of the turnpike road company, by appellee Mackin was evidence of an indebtedness to that amount by the drawer to the payee, and the parties all looked to the unpaid stock owing by the subscribers of stock to the road, for payment, as is manifest by the order itself, and the terms of acceptance by Hays the treasurer, and when Mackin recovered judgment against the defaulting stockholders, for the unpaid stock owing by them, having drawn the order on that fund, it was his duty to have assigned, and set apart to Miller so much of said judgment as was sufficient to pay him his debt.

To permit him to intervene, and withdraw the fund he had virtually appropriated to the payment of this debt, and to take it out of the state, would be aiding him in his effort to defeat a creditor in the collection of his debt.

The judgment sustaining the demurrer to the original and amended petitions is therefore reversed, and the cause remanded with directions to over-rule said demurrers, and for further proceedings consistent with this opinion.