appellee, but the widow is prevented from using or digging the coal within the dower tract for her own use as fuel, and from selling so much as may be necessary to enable her to keep the dower land in repair.

It is alleged, and not denied, that there is no timber or wood upon the land to enable her to build fences, and the principal value of the land is the coal beneath the surface. The fact that the mine had already been opened, and the coal taken from under the surface of the dower tract, gave to the widow the right to use so much of the coal as was necessary for fuel, and to sell so much as might be required to keep the dower tract in repair, when not injuring the inheritance. All the widow asks is to be allowed to operate the mine for this purpose, and no other. While the widow may not be entitled to dower in mines that have not been opened,-a question we do not decide,— it is well settled that, as to mines that have been opened, she is entitled to dower. In this case the mine was not valued as a coal mine in allotting dower, or in the division, but the widow given the land under which was operated the coal mine with the entrance on the land of the appellee. It seems to us, under such circumstances, although she will not be allowed to go upon the land of the appellee to reach the entrance, that she may operate the mine by making an entrance on the dower tract, and take therefrom so much of the coal as may be necessary for the use of the farm as fuel, and sell so much as may be required to keep up the fencing on the dower tract. Mines held in fee are liable to dower. Bainb. Mines. A tenant for life will be entitled to take minerals on the land, for purposes of husbandry and repairs. Id. c. 3, § 2.

While the entrance is not upon the land of the life-tenant, the mine is underneath its surface, and the coal extracted therefrom; and, the owner of the land adjoining denying to the widow the right of entry on his land to reach the coal, it is but equitable that she should be allowed to make the entrance on her own land, or that of which she is possessed. Kier v. Peterson, 41 Pa. St. 361, and cases cited, note; Bainb. Mines, 50.

The judgment is therefore reversed, with directions to perpetuate the injunction in so far as the appellant claims the right to go upon the land of the appellee for the purpose of obtaining coal. The judgment of $40, the value of the coal taken, is also reversed, as the appellant was entitled to it. The judgment below will be at the cost of the appellant.

1. RAILROADS-LIABILITY OF OWNER OF STOCK KILLED-WRECKING OF TRAIN. Where stock trespassing on a railroad track are killed by a passing train, which is also wrecked, the railroad company cannot recover of the owner of the stock damages sustained by the wrecking of the train, as a counter-claim, in an action by the owner of the stock to recover damages.

2. SAME-STOCK BREAKING DOWN FENCE.

Gen. St. Ky. c. 57, 24, making railroads liable for stock killed by negligence of passing trains, held, if stock are killed by such negligence, it is immaterial that the railroad track was inclosed by a lawful fence, which the stock broke through; the railroad is liable.

3. ANIMALS-TRESPASSING ON INCLOSEd Ground.

Gen. St. Ky. c. 55, art. 1, 2, providing that, if cattle trespass on grounds inclosed by a lawful fence, the owner of the cattle shall be liable for damages done by them, held it is immaterial that the owner of the stock did not keep them in a fenced inclosure; the question on which his liability depends is whether the land on which the trespass was committed was fenced.

Appeal from circuit court, Bullitt county.

W. R. Thompson and Wm. Lindsay, for appellant. for appellee.

Richards & Hines,

PRYOR, C.J. The appellee instituted this action in the court below, against the railroad company, for negligently killing two mules that belonged to him, that were run over by a freight train in charge of its employes. The appellant filed its answer, making the third paragraph a counter-claim against the appellee, asking indemnity for damages sustained by reason of the appellee suffering his mules to stray on its track; alleging negligence in this regard; and that the train was wrecked thereby, causing great damage to the company, and for which they asked a judgment. The negligence of appellee consisted in not having a good and lawful fence, such as would keep the mules within his own inclosure. A demurrer was sustained to this counter-claim, and hence this appeal.

At

The rule of the common law is asked to be enforced in this case, and the owner made liable for the trespass of his stock caused by his failure to keep them on his own land, or using reasonable precaution for that purpose. the common law the mere fact that the stock of the owner trespassed on the land of his neighbor did not authorize the latter to kill and destroy the stock. He might sue for the unlawful entry, and the destruction of his crops and grass, but had no right to run over and kill the stock with his vehicles and horses for the reason that they had broken his close. If, in doing so, he injured his vehicle, or destroyed that which he used in taking the life of the animals, such an injury would not, at the common law, have been estimated as a part of the damages sustained by the trespass on his premises. In this case, under instructions that were unobjectionable, the jury, by their verdict, have said that the mules were destroyed by the negligence of the appellant, or those in its employ, and that negligence not only caused the loss of the niules to the plaintiff, but wrecked the train of the defendant, for which it is now asking damages of the plaintiff. It could not, under such circumstances, have recovered at common law, and therefore the counter-claim, if a good defense, could not have availed in this case.

The demurrer, however, was properly sustained. The railroad track is the private property of the company, and no one has the right to use it as a private passway, or as pasture for stock; yet where stock stray upon it, even from the uninclosed lands of the owner, there is no remedy for the trespass unless the road of the company is within a lawful inclosure. There has been no intentional wrong shown on the part of the plaintiff in this case. He did not place his mules on the track of appellant that they might wreck the train, or prevent its passage. The animals had escaped from his premises, and were found on the track of the road; and whether their leaving the premises of the owner was or not by reason of insecure fencing is an immaterial inquiry. The right of recovery by the owner of land for the trespass upon it by the stock of others is made to depend upon the question as to whether or not the owner of the land had it inclosed by a lawful fence. If he had a lawful fence, the right of recovery exists, and for every subsequent breach double damages may be recovered. Gen. St. c. 55, art. 1, § 2. By article 4 of the same chapter the right is modified to this extent. If the owner of the stock have a lawful fence, and his stock break through it, and trespass on the premises of another not inclosed by a lawful fence, the owner is not liable for the first trespass, but is liable for the damages by reason of all subsequent trespasses. This section or article was framed doubtless on the idea that, in breaking the lawful fence of the owner of the stock, the latter was then notified of the vicious propensities of the animals, and that they could not be kept in even a lawful inclosure; and, a lawful fence affording no protection to the crops of your neighbors, you must keep your stock at home, or be made liable for every trespass but the first. Here the railroad company had no inclosure to prevent the trespass of animals upon it, and both the company and the appellee are claiming the possession and use of land around which there is no inclosure. Neither can maintain trespass by reason of the mere entry of stock upon

such a possession. The right of recovery is denied by the statute, and the counter-claim was not a defense to the action; nor would the fact of the company having its road inclosed have protected it from answering in damages for the injury to the stock, if caused by the negligence of the company. The statute makes the killing of stock under such circumstances prima facie evidence of negligence, and the burden is on the company of showing that the killing was the result of an accident that could not have been avoided, under the circumstances, by the exercise of ordinary care and diligence. Gen. St. c. 57, § 4.

The judgment below is affirmed.

FIRST NAT. BANK OF CINCINNATI v. THOMAS.

(Court of Appeals of Kentucky. February 3, 1887.)

1. STATUTE OF LIMITATIONS-DEBT BEING BARRED, MORTGAGE IS BARRED ALSO, The mortgage is a mere incident to the debt, or security for its payment; so that, when the right of recovery as to the debt itself is barred by limitation, the mortgage to secure it is barred also.1

2. SAME-ACTION BETWEEN NON-RESIDENTS ON CLAIM ACCRUING IN ANOTHER STATE. Where an action is brought in Kentucky, and both parties are non-residents, the statute of limitations of this state applies, and the burden of proof is on the party relying on Gen. St. c. 71, art. 4, 19, (providing that where a cause of action arises in another state between residents of such state, and by the laws of that state an action cannot be maintained thereon, no action can be maintained in this state,) of showing that the cause of action accrued in another state between citizens of that state, and the statute there was no obstacle to recovery.2

Appeal from circuit court, Logan county.

Robt. Rodes and Thos. B. Blakey, for appellant. Browder & Edwards, for appellee.

PRYOR, C. J. On the twentieth of December, 1876, the appellee executed to the appellant a mortgage to secure it in the payment of three bills of exchange, aggregating in amount over $9,000. The bills were all dated prior to the mortgage. The appellee, being the drawer of each bill, brought his action in equity, alleging that the bills had been discharged or satisfied, and asking that the incumbrance be removed. The appellant filed an answer de-, nying that the bills had been paid by the drawees, Burbank and Nash, and asked a foreclosure of the mortgage, to which a reply was filed by the appellee, (the drawer,) in which was pleaded the statute of limitation of five years.

"An action upon a bill of exchange shall be commenced within five years next after the cause of action accrued." Gen. St. c. 71, art. 3, § 2.

Five years had elapsed from the maturity of each bill before any action was instituted, and we see no reason why the statute is not a bar to the right to coerce payment. The mortgage was a mere incident to the debt, and given to secure its payment; and, when the right of recovery as to the debt itself is gone, the lien to secure it necessarily goes with it. The stipulations of the mortgage are not independent covenants upon which a recovery can be had regardless of the debt, to secure the payment of which the mortgage was given. The liability of appellee is on the original paper as the drawer; and, when that liability ceases, the covenants in the mortgage, having created no new right except the lien, cannot be looked to as extending the liability from five to fifteen years. Prewitt v. Wortham, 79 Ky. 287; Vandiver v. Hodge, 4 Bush, 539; Yeates v. Weeden, 6 Bush, 438.

It is claimed that both of these parties are residents of the state of Ohio, and that the cause of action accrued in that state, and therefore the statute of that state must prevail. Whether Thomas is or not a resident of Ohio does * See note at end of case, part 2.

1 See note at end of case, part 1.

not appear; and if he is, this action having been brought in Kentucky to enforce the lien, the statute of limitation of this state is well pleaded; and to avoid its effect the burden was on the appellant of showing that the cause of action accrued in Ohio, between these parties who are citizens of that state, and that the law of limitation in that state was no obstacle to the recovery. Labatt v. Smith, 7 Ky. Law Rep. 631.

The judgment below must be affirmed.

NOTE.

1. STATUTE OF LIMITATIONS. A MORTGAGE is a mere incident to the debt. Teal v. Walker, 4 Sup. Ct. Rep. 420, 5 Fed. Rep. 420; Allen v. O'Donald, 28 Fed. Rep. 346, Id. 17.

In Kentucky there is no statute of limitations as to liens. If the claim becomes barred, the lien dies with it, County of McCracken v. Mercantile Trust Co., 1 S. W. Rep. 585. In Arkansas the same rule is applied to equitable liens, Millington v. Hill, 1 S. W. Rep. 547; Dismukes v. Halpern, Id. 554; but the right to foreclose a mortgage is not barred until after adverse possession by the mortgagor or his grantees for the period within which actions for the recovery of real property may be brought, Smith v. Woolfolk, 5 Sup. Ct. Rep. 1177; nor is it in Missouri, Lewis v. Schwenn, 2 S. W. Rep. 391.

In Arkansas such possession is not adverse until some act is done or claim made notoriously adverse to the rights of the mortgagee. Smith v. Woolfolk, 5 Sup. Ct. Rep. 1177. In Missouri it is not adverse so long as payments of principal or interest are made. or the relation of mortgagor and mortgagee is recognized by both parties. Lewis v. Schwenn, 2 S. W. Rep. 391.

As to the effect of the statute of limitations in other states, see Lewis v. Schwenn, 2 8. W. Rep. note, 393.

2. CAUSE OF ACTION ACCRUING IN ANOTHER STATE. Where a cause of action arising in another state or country is completely barred by its laws at the time of the debtor's arrival in Illinois, it cannot be enforced in that state, Osgood v. Artt, 10 Fed. Rep. 365; nor in Indiana, Wood v. Bissell, 9 N. E. Rep. 425; in Iowa, Goodnow v. Stryker, 14 N. W. Rep. 345; Ross v. Rees, 7 N. W. Rep. 611. In Kentucky it was held that the lex fori governs. Farmers' & Traders' Nat. Bank v. Lovell, 1 S. W. Rep. 426.

JESSAMINE Co. v. SWIGERT'S ADM'R.

SAME . NEWCOMв and others.

(Court of Appeals of Kentucky. February 5, 1887.)

MUNICIPAL CORPORATIONS-SUBSCRIPTIONS TO STOCK-ULTRA VIRES-CREDITOR'S RIGHT TO ENFORCE SUBSCRIPTION.

The Kentucky act of 1865 incorporating Kentucky River Navigation Company, (2 Acts 1865, p. 97, 2,) providing that the business of the company shall be the improvement of the navigation of the river by building additional locks and dams, a county subscribed to stock, being interested in securing such additional improvements; but the work of making the new locks and dams was soon abandoned, and the company undertook to maintain and repair the old ones, which were not in any way beneficial to the county. Held, the subscription could not be enforced, either by the corporation or by creditors, (the corporation being insolvent,) one of whose debts had been contracted for repairing the old locks, and both debts after the abandonment of the original purpose of building new locks.

Appeal from Louisville law and equity court.

Wm. Lindsay and James S. Ray, for appellant. Brown, Humphrey & Davie and Goodloe & Roberts, for appellee.

PRYOR, C. J. The county of Jessamine is contesting the validity of a subscription alleged to have been made by that county to a corporation known as the "Kentucky River Navigation Company," and also its liability, on other grounds, for the payment of the judgments below against the navigation company, the one in favor of Swigert's administrator, and the other in favor of Newcomb, Buchanan & Co., amounting in the aggregate to $16,000, exclusive of interest and costs.

The appellees, Swigert's administrator and Newcomb, Buchanan & Co., having claims against the Kentucky River Navigation Company, reduced

these claims to judgments, and on a return of nulla bona Swigert's administrator filed a petition in the nature of a bill of discovery in the Louisville law and equity court against the company and Jassamine county; and by an amended petition set forth the subscription made by the county, and presented, if the facts alleged are true, a cause of action by the company against the county for the stock subscription to the corporation, and which they allege was unpaid.

Newcomb, Buchanan & Co. instituted actions against the company on notes of the company assigned to them by one Harper, and obtained an attachment on the ground of a want of property sufficient to pay their debt, and that the same would be endangered by delay in its collection before judgment. The answer of the county of Jessamine not being satisfactory to the plaintiffs, they amended their petition, as in the Case of Swigert's Administrator, setting forth a cause of action by the corporation against the county by reason of its subscription and the non-payment of its stock. Jessamine county was required to make defense, and did so by denying its liability. Whether, after failing to disclose any indebtedness as garnishee, the county could have been proceeded against in the Louisville law and equity court by the service in Jessamine county, in a regular form of action for the recovery of the stock, is a question not made by the record,

There was no demurrer to the jurisdiction, but an answer filed; the court having first overruled a general demurrer that questioned alone the sufficiency of the petition. The petition was good, and the demurrer properly overruled. If Jessamine county was liable to pay these debts out of the stock subscribed, then the judgment was proper.

A creditors' bill to settle the affairs of the corporation, it being insolvent, might have been maintained; but the creditors in the present actions were only interested in making their money out of the corporation; and if the company was insolvent, or there existed other creditors of or debtors to the corporation, the defendants should have asked for a settlement, and an equitable distribution of the assets. As said by the supreme court in the case of Hatch v. Dana, 101 U. S. 205: "The bill was not a bill asking to wind up the company. It simply sought payment of a debt out of the unpaid stock subscription." See, also, Ogilvie v. Knox Ins. Co., 22 How. 380.

All the appellees are after in this case is the payment of their debts, and nothing more. As there is no attempt to wind up the company, or by the stockholders to require a general settlement of the accounts of the corporation, the only inquiry is as to the liability of the stockholder to this corporation, or to its creditors, for the payment of these debts.

There was originally a large subscription of stock to the Kentucky River Navigation Company, that was nearly all declared invalid, leaving as stockholders of the company Jessamine county, if it is to be regarded as a stockholder, and the firm of Bisset & McMahon. These two subscriptions, with some small sums by individuals, constituted the stock for the construction of locks and dams on the Kentucky river, that required, if the enterprise had been successfully carried out, a large expenditure of money. The business of the company was "the improvement of the navigation of the Kentucky river and its tributaries, by building locks and dams." Section 2 of company's charter, (page 97, 2 Acts 1865.)

The county of Jessamine, as the appellees contend, had subscribed $100,000, and Bisset & McMahon $100,000. Other counties had subscribed about $800,000, and those subscriptions were never collected, but held to be invalid. The company had commenced work upon one or more additional locks, but abandoned the enterprise by reason of the release of the several counties from their attempted subscriptions, and in the fall of 1870 was hopelessly insolvent, and never after that time, so far as appears from this record, attempted to carry out the object of the corporation. The act of incorporation was obtained