Johnson v3. Offutt. The statute, thus construed, would, during a session of the legislature, make it unlawful for a sheriff to sell a member's property under an execution previously levied; or to levy an execution on his property under a judgment previously rendered; or for a member's friend to warn him of any pending misfortune; because any of those things might, to some extent, divert his thoughts from his public duties, and disturb that serenity of mind which is insisted upon as being necessary for their performance. A man has no right to complain, or to feel disturbed, because he is sued for failing to perform his contracts. But it is said, that if a member can be sued, he may be harrassed by unjust demands; and, therefore, the object was to prevent him from being sued at all during his privilege. To give the statute that effect, the court, whenever a member is sued, must take judicial notice of the fact, and of its own motion dismiss or continue the cause, which would be impossible. The defendant, to take advantage of his privilege, must show that he is a member; and it can give him but little additional trouble to prepare an answer, if he has a defense, and an affidavit that he cannot prepare for trial without neglecting his legislative duties; or an affidavit showing that he has a defense, but cannot prepare his answer without such neglect; in either of which cases he should have a continuance. But if he has no defense, the rendition of a judgment against him is not, in our opinion, such a disturbance as the statute was designed to prohibit. The difference between the phraseology of this statute, and of that of 1795, furnishes no sufficient reason to believe that the legislature intended to change the law. (Overfield vs. Sutton, 1 Met., 621.) The motion to quash the service of the summons was properly overruled. The only authorities cited in support of the motion requiring the plaintiff to file the second part of the bill of exchange, are 2 Greenleuf's Ev., 154; 2 Starkie's Ev., 142, (6th Am. Ed.) Greenleaf refers to no authority except Starkie, and Starkie refers to no authority. The only case we have found upon the subject is that of Dowens & Co. vs. Church, 13 Peters, 205, in which it was decided, for reasons which seem to us entirely satisfactory, and which we need not repeat, that in a suit by an indorsee against an indorser, for non-acceptance of a bill, the production of that part of the bill which had been protested for non-acceptance was prima facie sufficient to entitle the plaintiff to a judgment; and that it was matter of defense on the other side, to show either that some other bill of the set had been presented and accepted, or paid; or that it had been presented at an earlier time, and dishonored and due notice had not been given; or that another person is the proper holder, and has given notice of his title to the party sued; or that some other ground of defense exists, which displaces the prima facie title made out by the plaintiff. The same principle applies in a suit by an indorsee against the acceptor, where, as in this case, the part of the bill sued upon has been accepted. The judgment is affirmed. CASE 6-PETITION EQUITY-JUNE 13. Applegate & Co. vs. Murrill et. al. APPEAL FROM THE SCOTT CIRCUIT COURT. See the opinion for a statement of facts in this case adjudged sufficient to bring it within the operation of the act of 1856, prohibiting sales, &c, made by debtors in contemplation of insolvency, and with the design to prefer one or more creditors to the exclusion in whole or in part of others. JUDGE BULLITT DELIVERED THE OPINION OF THE COURT: Murrill, and other creditors of Applegate, sued him and others on the 19th March, 1859, alleging, in substance, that he, with the aid of Maddox, had sold a part of his property, within six months past, in contemplation of insolvency, and with the intent to prefer one or more of his creditors to the exclusion, in whole or in part, of the plaintiffs and others, and Applegate & Co. vs. Murrill et. al. praying that his property might be subjected to the payment of his debts pro rata, according to the provisions of the act of 1856. (Session acts, 1855-6, vol. 1, page 107.) Applegate and Maddox denied that at the time of the sales complained of, either of them knew or believed that Applegate was insolvent, and say they believed he would be able to pay all his debts, and that said sales were made to wind up his business, and pay his debts, and not to prefer any creditor, nor in contemplation of insolvency. A judgment in accordance with the prayer of the petition was rendered by the court below, from which Applegate and Maddox.took this appeal. The following facts appear: On the 7th March, 1859, Applegate, who was a retail grocer in Georgetown, executed a power of attorney, authorizing Maddox, his father-in-law, to sell his property of every description, collect debts due to him, pay debts owing by him, and transact and perform all his business of every kind. Applegate then owed Maddox about $2,000, and owed about $3,000 for which Maddox was his surety, and other debts to the amount of about $5,000, making in all over $10,000, for a considerable part of which suits were pending against him; and his property, (consisting of a dwelling-house, furniture, and interest in several slaves, merchandise, and choses in action,) was not worth more than about $4,000. Maddox promptly commenced collecting the debts, and selling the merchandise by private and public sale, and so continued until this suit was brought. It appears that several notes, given by purchasers of the merchandise, were taken by Maddox, payable to his individual order, and it does not appear that any of the notes for merchandise were made payable to Applegate. A clerk employed to aid in selling the merchandise testifies, that he was instructed by Maddox not to let any of the purchasers set off their claims on Applegate against their debts for merchandise, and that three creditors. who applied for such offsets, were refused. An attorney, representing two other creditors, applied to Maddox to know whether the proceeds of the property would be applied to Applegate's debts pro rata, and Maddox replied that he had no Applegate & Co. vs. Murrill et. al. answer to make. Another creditor, who called on Maddox during the progress of the sale, was told by him that he should be paid; that he (Maddox,) thought there was enough to pay all. All the money obtained by Maddox by selling the merchandise and collecting the debts due to Applegate, was applied by him to the payment of debts for which he was Applegate's surety. Applegate was in bad health, and unable to attend regularly to business, though he was not confined to his house, and was at the store occasionally during the progress of the sale by Maddox. In our opinion the condition of Applegate's health, and of his pecuniary affairs, rendered it advisable for him to close his mercantile business, and the employment of an agent for that purpose would have been proper and perhaps necessary. But Maddox was not employed merely for that purpose. The power of attorney, in effect, authorized Maddox to pay such of Applegate's debts as he might choose. That he would pay those due to himself, or for which he was liable as surety, was a result so natural that it must have been contemplated by Applegate. That this was contemplated by both of them seems evident from their conduct, as there is no reason to doubt that Maddox's application of all the money realized, to the debts for which he was bound as surety, and his refusal to pay or to allow anything to other creditors, met Applegate's approval. In view of the limited circle of Applegate's business, of the excess of his liabilities over his assets, and of the suits against him, he must be regarded as having known that he was insolvent when he executed the power of attorney. The statute would be of little value to creditors, if the courts should require them to produce stronger evidence than the facts above mentioned, in order to prove a debtor's knowledge of his insolvency. Our opinion is, that Applegate's sales, through Maddox as his attorney, were made by him in contemplation of insolvency, and with the intent to prefer Maddox, and those to whom he was bound as surety, over the other creditors. Wherefore the judgment is affirmed. Dougherty, &c. vs. Dougherty, &c. CASE 7-APPEAL IN WILL CASE-JUNE 14. Dougherty, &c. vs. Dougherty, &c. APPEAL FROM FRANKLIN CIRCUIT COURT. 1. "As I intend starting in a few days to the State of Missouri, and should anything happen that I should not return alive, my wish is, that all of my land," &q,, [going on to devise an estate.] The author of the paper made the contemplated trip, returned to Kentucky and died. Held, that the instrument is contingent and inoperative as a will. 2. See opinion for the subsequent acts, parol and written declarations of the decedent, held not sufficient to establish a re-execution or republication of the instrument as a will. 3. Quere. Can a contingent will, after the happening of the event which was to terminate its effect, be revived by any kind of a re-execution which would give it the 'force of a will? 4. The case of Maxwell's will, (3 Metcalfe, 101,) cited and approved. A. J. JAMES, for appellants, cited 1 Williams on Executors, 89, 90, 169, 170, 171, 172, 154; 2 Met., 364; 2 Jarman on Wills, 743; 1 Ib., 78 and note. JOHN RODMAN on same side, cited 3 Phillemon's Rep., 397; 1 Vesey, 190; 2 Met., 367. JAMES HARLAN, SR., and JAMES HARLAN, JR., for appellees, cited 7 Dana, 94; 1 Vesey, Sr., 190; 2 Watts & Sergeant, 145; 3 Met., 111; 14 Grattan, 332. T. N. LINDSEY, on same side, cited 1 Vesey, Sr., 190; 2 Watts & Serg., 145; 6 Vesey, 608; 1 Williams on Executors, 153; 3 Met., 101; 2 Rev. Statutes, 458. CHIEF JUSTICE STITES DELIVERED THE OPINION OF THE COURT: A paper offered for probate, as the last will of James Dougherty, dec'd, having been rejected by the county and circuit court of Franklin, is brought before us by appeal from the latter tribunal, and the only question to be considered is, whether said paper should have been admitted as a valid will. Two objections are taken to the paper as a will. First. That it was not published and authenticated in the manner prescribed by law; and Second. If so published and authenticated, that the testator was disqualified, by reason of mental incapacity, from making a will. |