1 Richie v. Cralle, &c. tle Company for the purpose of its selling them and raising money on them, and that, appellees having purchased them when sold according to this purpose and plan, he is estopped to question their validity in the hands of innocent. purchasers, or to set up any defense against their payment. It is well, settled that one who lends his credit to another, in the form of a note to be sold to raise funds, can not, against the assignee of the note, set up a want or a failure of consideration. Gano v. Finnell, 13 B. Mon., 390; Barbaroux v. Barker, 4 Metc., 49. But the fact that the mortgage recites that the first parties have borrowed $5,000, does not estop them from showing that the money was not in fact paid. The rule is well settled that an estoppel must be pleaded. This rule applies to an estoppel in pais as well as estoppel by deed. The answer of Richie does not disclose sufficient facts to raise the estoppel relied on, and the defense not be made by demur rer. This leaves us to consider only the first ground, and on this we have been furnished a very elaborate opinion by one of the judges of the court below, which we have read with great interest; holding that at common law, prior to the statute of Anne, notes payable to order or to bearer, in the hands of an innocent holder for value, were free from equities or defenses which the maker might have against the original payee. We do not deem it necessary to determine what the original rule of the common law was, although we would have much hesitation in overruling the judgment of Lord Holt and his learned associates on the subject. But, in our judgment, the question in this State is settled by statute. Section 483, Kentucky Statutes, provides as follows: "Promissory notes payable and negotiable at any bank incorporated under any law of Richie v. Cralle, &c. this Commonwealth or organized in this Commonwealth under any law of the United States, which shall be endorsed to and discounted by the bank at which the same is payable, or by any other of the banks in this Commonwealth as above specified, shall be and they are hereby placed on the same footing as foreign bills of exchange." The bonds sued on in this case are promissory notes, within the meaning of this section. They have not been indorsed to or discounted by any bank, they are not payable at a bank, and under this section they do not stand on the footing of bills of exchange. It has been held by this court in a number of cases that a promissory note can only be put upon the footing of a bill of exchange in the manner pointed out in this section. Section 474, Kentucky Statutes, also provides: "All bonds, bills or notes for money or property shall be assignable, so as to vest the right of action in the assignee; but except in case of bills of exchange not to impair the right to any defense, discount or off-set that the defendant has and might have used against the original obligee or any intermediate assignor before notice of the assignment." It is said that this section applies only to such bonds, bills, or notes as were not assignable at common law so as to vest a right of action in the assignee, and that it leaves all bonds, bills, or notes which at common law were negotiable just as they stood before it was passed. It seems to us that the language of the section leaves no room for this construction. If this was the meaning of the section, then it would not refer to bills of exchange; and if the makers of the section had not had in mind all bills and notes, including bills of exchange, there would have been no reason for excepting bills of exchange out of the operation of the last clause of the section. It seems to us that the only rea Richie v. Cralle, &c. sonable construction of the language used is that the first clause includes all bonds, bills, or notes, and the second all except bills of exchange, or paper put upon the footing of bills of exchange. The word "assignable," in the first clause, is used in the sense of "transferable" or "negotiable." The ordinary' meaning of the word "assign" is to make or to set over to another; to transfer to or vest in another. See Bouv. Dict.; Webst. Dict. Whether the assignee takes the paper by a written indorsement on the back, or by mere delivery, in any event, except in case of a bill of exchange, his right of action is without prej udice to any defense, discount, or offset that the maker had or might have used against the original obligee. To hold otherwise would be to place notes payable to bearer or order on the footing of a bill of exchange, although not discounted by a bank, contrary to the express terms of the statute above quoted. When the Legislature provided how a note could be placed on the footing of a bill of exchange, and that all notes or bonds might be transferred, but not so as to affect any equities the maker might have against the transferor, except in cases of bills of exchange, the statute must be regarded as a regulation of the subject. This has been the uniform view of this court. In Campbell's Ex'r v. Bank, 10 Bush, 152, the note was payable to William Campbell or order, but not at an incorporated bank; and, although it was in the hands of a bona fide holder, it was held that the paper was governed by the statute above referred to, and did not stand on the footing of a bill of exchange. In the previous case of Prather v. Weissiger, 10 Bush, 117, a note payable to or der, in the hands of a bona fide purchaser for value, was held subject to the equities existing between the original parties. Among other things the court said: "It was Richie v. Cralle, &c. for a long time a mooted question whether, at common law, promissory notes were negotiable or not; and to settle it the statute of Anne was enacted, making such paper negotiable, and subject, like inland bills of exchange, to the law merchant. The Kentucky Statutes of assignments does not go so far, and such notes have never been held or treated in this State as commercial paper, or used, like bills of exchange, as a circulating medium in mercantile or commercial transactions." The doctrine of these cases was recognized in Payne v. Bank, 10 Bush, 176, and in a number of subsequent decisons. If our judgment inclined now to the other construction of the statute, we would not feel at liberty, under the doctrine of stare decisis, to set aside a rule so long recognized by both the bench and bar of the State. In Insurance Co. v. Hoffman (Ky.) 50 S. W., 979, bonds just like those involved in this case were held subject, in the hands of a bona fide purchaser, to existing equities, before notice of the assignment, and the same rule has been applied since by this court. Schnabel v. Title Co., 53 S. W., 1031. The case of Title Co. v. English (Ky.) 50 S. W., 968, involved only the question whether a past-due coupon bore interest. There was no question in the case whether such paper was negotiable, so as to cut off defenses that the maker might have to it; for it is well settled that a past-due coupon, even of a negotiable bond, is, in the hands of a purchaser, subject to all equities. Greenwell v. Haydon, 78 Ky., 332. The question, therefore, before us in this case, did not arise in that case, and could not be considered. The language of the court there refers to the question that was before the court. Bonds issued by municipalities or corporations, under statutory authority, for sale in a distant market, stand upon peculiar grounds, which do not apply to the paper in ques Mosley v. Stone, Auditor. tion. To extend the rule applied to municipal bonds, or those issued by corporations, by statutory authority, for sale to raise money, and make it include, also, bonds such as those in controversy, would be to deny to the statute the fair and just effect of its express terms. The judg ment of the court below is therefore reversed, and the cause remanded, with directions to overrule the demurrer to the answer, and for further proceedings not inconsistent with this opinion. CASE 66-ACTION FOR MANDAMUS-MAY 16. Mosley v. Stone, Auditor. APPEAL FROM FRANKLIN CIRCUIT COURT. JUDGMENT FOR DEFENDANT AND PLAINTIFF APPEALS. REVERSED. REWARDS KILLING OF FUGITIVE IN MAKING ARREST FAILURE TO DELIVER TO JAILER. Held: Plaintiff is entitled to a reward offered by the Governor for the arrest of a fugitive and his delivery to the jailer, though in making the arrest he wounded the fugitive so that he died before he could be delivered to the jailer. J. W. RAY, ATTORNEY FOR APPELLANT. 1. Where performance becomes impossible by reason of the act of God or of the law, a party will be excused for non performance. Farmers' Bank v. Johnson, 4 Bush, 411; Belding v. State, 99 Am. Dec., 214; Blake v. Wm. Niles, 38 Am. Dec., 506; People v. Bartlett, 3 Hill, N. Y., 570; Taylor v. Tainter, 83 U. S., 366; Coke Litt., 206, (a). 2. Death or destruction of the subject matter of the contract, ex2 Dana, 248, Keas v. Yewell; Dexter cuses a failure to perform. v. Norton, 47 N. Y., 62; Butterfield v. Byran, 158 Mass., 517; Stephens v. Brooks, 2 Bush, 137; Stone v. Dysert, 20 Kan., 123. |