GUFFY
J.
On the
27th of November, 1897, the appellant instituted this action
in the Bell circuit court against the defendants. It is
alleged as follows in the petition: "The plaintiff
William Givens, says that he is a citizen and resident of
Bell county, Kentucky, and that the defendant the Right
Honorable Thomas, Lord Crawshaw, Baron Crawshaw (a name or
title given to Sir Thomas Brooks), and Catherine, Lady
Crawshaw, his wife, are citizens and residents of London
England, and that the defendant John D. Hood is a citizen and
resident of the city of Chicago and state of Illinois. For
cause of action herein, the plaintiff states: That in the
year of 1893, prior thereto, and since that date, Sir Thomas
Brooks, as he was then called, now the defendant Thomas, Lord
Crawshaw, etc., was the owner of, and claimed the legal and
equitable title to, a great many acres of land, consisting of
twenty-two different tracts and twelve lots, together with
the appurtenances thereto belonging, all situated in the
county of Bell and state of Kentucky; the titles to said
property having been obtained by said defendant from various
and divers persons. On or about the -- day of --, 1893, the
plaintiff bought from the defendant Crawshaw (then Brooks)
all the standing and merchantable timber on said land, for
which the plaintiff agreed to pay to the said defendant (then
Brooks) the sum of two and 50/100 dollars per thousand feet.
That the said defendant
Crawshaw (then Brooks) claimed a tract of land hereinafter
described as 'Tract 14,' and known as the
'Tinsley Tract,' containing two hundred and eighteen
and one-fourth acres. That, amongst other lands, the
defendant Crawshaw sold the timber of said Tinsley tract to
this plaintiff, and that pursuant to said contract this
plaintiff went to some of the lands then belonging to this
defendant (among others, the Tinsley tract), which the
defendant then claimed to be the owner of, and cut the timber
therefrom, and paid to said defendant Crawshaw (then Brooks)
according to the contract for the timber so removed from said
Tinsley tract, amounting to the sum of about three hundred
dollars. From other land this plaintiff cut and removed
timber under said contract to the amount of about three
hundred dollars, for which this plaintiff has paid the
defendant Crawshaw. At or about the time plaintiff made the
payments above referred to, and had gone to considerable
expense and trouble in making preparations to manufacture
said timber into lumber, the defendant Crawshaw notified and
compelled this plaintiff to stop cutting said timber, to the
plaintiff's damage in the sum of five thousand dollars.
Plaintiff further states that among other tracts of land that
were claimed by defendant Crawshaw, from which this plaintiff
had been instructed to, and did, cut timber under said
contract, was the Tinsley tract, hereinbefore referred to
and that plaintiff did cut a certain amount of timber from
said tract, for which this plaintiff was induced to take said
timber from said Tinsley tract, and pay to the said defendant
therefor, because said Crawshaw had sold same to this
plaintiff, representing that he was the owner thereof, when
in fact the said defendant Crawshaw did not own the said
Tinsley tract of land, and his claim to same was fraudulent
and void, and not well founded in law. That one Thos. Evans
was at that time, and is now, the owner, both legal and
equitable, of said tract of land, but this fact was not known
to this plaintiff at that time, and he was induced by the
said defendant Crawshaw to believe that he (Crawshaw) was the
legal and the equitable owner of said land. That in 1895 the
said Thomas Evans brought suit in the Bell circuit court,
claiming the title to the said Tinsley tract, and made this
plaintiff a defendant to said action, and asking damage
against this plaintiff for the timber removed from said tract
of land by plaintiff; and at the October term of said Bell
circuit court, 1897, a judgment was rendered in the said
action of Thomas Evans against this plaintiff and others,
adjudging him (Evans) to be the owner of the said Tinsley
tract of land, and adjudging that this plaintiff pay to said
Thomas Evans the sum of three hundred dollars, with interest
and costs of said action, for the timber removed from said
tract of land by plaintiff under contract with defendant
Crawshaw. Plaintiff says that he has been compelled to pay
said judgment and the costs of said action of Evans against
himself and others, which judgment and interest cost $--
lawyer's fees, and his time, trouble, and other expenses,
amounting to the sum of seven hundred dollars. Plaintiff
further says that at the time of the filing of the suit
against this defendant by the said Thomas Evans, setting up
his title to said Tinsley tract of land, and claiming damages
for the removing of said timber, this plaintiff gave to the
defendant Crawshaw (then Brooks) notice of the filing of said
suit by said Evans, when this defendant, Crawshaw (then
Brooks), assured this plaintiff that he (defendant Crawshaw)
was the real owner of said land, and that Evans had no title
to same, and then entered into a contract with this plaintiff
by which he (defendant Crawshaw) agreed with plaintiff that,
if this plaintiff would defend said action and set up the
title of this defendant Crawshaw, he (Crawshaw) would pay all
expenses of said action and costs incident thereto, and in
pursuance of said contract the defendant Crawshaw did employ
some counsel, and this plaintiff employed other counsel, to
defend said action of Thomas Evans, and that said counsel, in
the name of this plaintiff, did set up the claim of said
defen...
