Thompson, &c. vs. Healy.

clerk of the county. The record of the court, containing the list, was read to the jury, and the clerk testified that he had delivered to the sheriff a copy of the list, containing the claim allowed to Healy. But it is contended that the clerk's statement was incompetent evidence, as no effort had been made to produce the list delivered to the sheriff.

We are of a different opinion. The record, which was read to the jury, furnished the best evidence of the list. The statute does not require any entry of record concerning the delivery of the copy to the sheriff. The delivery cannot be proved except by oral testimony. The clerk's statement was, therefore, competent evidence of the delivery. It must be presumed that he did his duty and furnished a true copy. If he did not, the sheriff can protect himself against injury by producing the copy furnished.

3. But the notice is defective in failing to aver that the clerk had delivered to the sheriff "a list of the persons chargeable with the payment of the county levy, and the sum to be paid by each, and a list of the sums due and from whom due to the county." The delivery of these lists was necessary in order to make the sheriff liable. The plaintiff must aver and prove every fact necessary to show that the sheriff is liable. (18 B. Mon., 627; 3 Met., 347.)

4. There was evidence conducing to prove a demand by Healey upon one of the sureties, but no evidence of a demand upon the sheriff.

The proceeding by motion, for the debt and damages, being a statutory remedy, cannot be maintained unless the provisions authorizing it have been complied with. For this purpose a demand upon the sheriff is necessary.

It is suggested by counsel, that the sheriff has joined the Confederate army, and that no demand can be made upon him. If so Healy can, no doubt, recover from his sureties the debt, without damages, in an ordinary action, if he can show that the sheriff collected or might, with due dilligence, have collected a sufficient sum to pay the county creditors.

The judginent is reversed, and cause remanded with directions to dismiss the motion without prejudice.

4me 260 111 156

Pegard vs. Kellar.

CASE 15-DISTRESS WARRANT-JUNE 23.

Pegard vs. Kellar.

APPEAL FROM THE JEFFERSON COUNTY COURT.

1. A defendant in a distress warrant, who executes the bond authorized by section 721 of the Civil Code, thereby admits that he is either tenant, assignee or undertenant, and cannot, in a motion for judgment thereon, rely upon a defense which denies that character-as that he was but surety for the lessee, and that the lease was procured by fraud or mistake on the part of the lessor. The defenses allowed in such motion are prescribed in section 722 of the Code.

2. Quere. In the case supra, would not the party be entitled to relief in equity?

N. WOLFE, for appellant, cited Civil Code, secs. 120, 121, 122; Rev. Stat., chap. 56, art. 2, sec. 9; 2 Black. Com., side page 41. HARRISON & BENNETT, for appellee, cited 2 Revised Statutes, page 92.

CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT:

Kellar sued out a distress warrant against Pegard, Gorin and Schlieder for the recovery of rent alleged to be due and in arrear, amounting to $145.83. The warrant having been levied on certain property of Pegard, he executed the bond authorized by section 721 of the Civil Code, which bond, under the statute regulating the jurisdiction of the Jefferson county court, was returned to the clerk's office of that court. Kellar, after regular notice, moved for judgment on this bond, which was resisted by Pegard on three grounds, the only one of which that had he noticed was, that he was never the tenant or undertenant of Kellar, or assignee of such tenant, and that the property levied on was never on the leased premises; that Gorin was the lessee and tenant of Kellar, and that he, Pegard, signed the lease, believing that he was signing it as surety only for Gorin, and that by mistake or fraud on the part of Kellar, in drawing said lease, his name was inserted therein as one of the lessees, instead of surety for the actual lessor, Gorin.

The court below rendered a judgment in favor of Kellar for the amount claimed in the warrant, notwithstanding the

Pegard vs. Kellar.

special verdict of the jury sustaining this ground of defense. From that judgment. Pegard has appealed, insisting that although he may be held liable as the surety of Gorin in an action on the lease, his liability cannot be inforced by distress warrant under the statute.

Without deciding that point, we proceed to consider, briefly, a preliminary question on which the decision of this case must

turn.

Chapter 6 of title 14 of the Civil Code, regulating "proceedings upon executions and distress warrants," provides, among other things, the mode in which a claim to personal property, which has been levied on under an execution or distress warrant, may be asserted by "any person other than the tenant, his assignee, or under-tenant;" and it also prescribes the mode in which the tenant, his assignee or under-tenant may protect himself against an illegal distress. (Sections 721 to 726 inclusive.) Under these sections, "the tenant, his assignee or undertenant" may, where an officer levies, or is about to levy upon property, execute a bond containing certain stipulations, and to be returned to a justice of the peace or clerk's office, according to the amount. The party to whom the bond is executed may move the court or justice for a judgment thereon against all or any of the obligors or their representatives, having given to them five days' notice of the motion. "The defendants may make defense upon the ground that the distress was for rent not due in whole or in part, or was otherwise illegal; or, if the property was levied on, that it was by statute exempt from levy." Other sections prescribe the mode of trial, form of the judgment, &c.

It will be observed that this summary remedy for contesting the legality of the distress for rent is confined exclusively to three classes of persons: the tenant, the assignee, and the under-tenant. For all others who may suffer injury by a wrongful or illegal levy of a distress for rent, the law has provided other and ample means of redress.

The appellant, by way of availing himself of this remedy, executed the bond required by the 721st section, thereby admitting, by necessary implication, that he was either tenant, as

4me262 89 318

4me262 92 544

Matson vs. Matson.

signee, or undertenant. For, unless he sustained one or the other of those relations to the plaintiff, he had no shadow of right to give the bond or to suspend thereby the execution of the distress warrant. Yet, upon the motion for judgment on the bond, he proceeds to make defense upon the ground that he never was the lessee or tenant of the plaintiff, but executed the lease as the surety of the lessee and tenant, and that the lease was procured by fraud or mistake on the part of the lessor. It is perfectly clear, we think, that this defense was properly disregarded by the court below. It was a denial of the character in virtue of which, alone, the statute, whose aid he invoked, allowed him the right to suspend or resist the execution of the distress warrant in the mode of proceeding adopted. Whether upon the facts alleged and proved he might not have been entitled to relief in equity, is a question not before us, and, therefore, not decided.

The judgment is affirmed.

CASE 16-PETITION ORDINARY-JUNE 24.

Matson vs. Matson.

APPEAL FROM THE BOONE CIRCUIT Court.

1. The provision of section 49 of the Civil Code, that where the action concerns the separate property of the wife, or where the action is between herself and her husband, she may sue alone, relates merely to the form of procedure, and confers no new right of action.

2. The only effect of the provision supra is to dispense with the necessity for the intervention of a next friend, where the action concerns the separate property of the wife or where she sues in equity to enforce some equitable right against the husband.

3. The wife cannot sue the husband to recover possession of slaves devised to her as her separate property, free from the control of her husband, which he refuses to deliver to her; no other ground of relief, legal or equitable, being alleged.

4. In such case the husband is regarded as the trustee of the wife, holding the legal title for her sole use. A court of equity would hold him accountable for any

Matson vs. Matson.

violation of his trust. But his mere possession of the slaves, nothing else appearing, is not sufficient to show such abuse.

5. Although there are cases in which a court of equity will lend its aid in the adjustment of conflicting claims arising between husband and wife with respect to their property, yet is the policy of the law rather to restrict than to enlarge this class of cases. The necessity must be made clearly apparent.

JAMES O'HARA, Jr., for appellant, cited, Rev. Stat., chap. 47, sec. 17; 12 B. Mon., 329.

STEVENSON & MYERS, for appellee, cited Civil Code, secs. 49, 55, 58; 18; B. Mon., 385 Ib., 301; 12 Ib., 329; 14 Ib., 247; 8 Code N. Y. Rep., 265; 17 lb., 514; 31 Barbour, 319; 29 Ib., 516; 4 Mich. 305; 3 California, 312.

CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT:

This was an ordinary action brought by Susan D. Matson vs. W. D. Matson, in the Boone circuit court, to recover the possession of two slaves which, the plaintiff alleges, were devised by the will of her father to her separate use, and which are in the possession of the defendant, who refuses to deliver them. She also, by appropriate affidavit claimed the immediate delivery of the slaves, as provided by section 207 of the Code.

The defendant answered, setting up two grounds of defense. First, that the plaintiff is a married woman, the wife of the defendant, and was such at the institution of the suit; and that the legal title to the slaves is in him, as the trustee of his wife. Second, that before the institution of this action, the plaintiff had brought suit against him in the Kenton circuit court for the same slaves, which was then still pending.

The plaintiff's demurrer to the answer was sustained, and the defendant failing to answer further, judgment was rendered against him for the slaves, to reverse which he has appealed.

The right of the appellee to maintain this action, and to the relief granted her by the judgment, is conferred, as her counsel insist, by section 49 of the Civil Code, which provides that "where a married woman is a party, her husband must be joined with her, except that where the action concerns her separate property, she may sue alone, and where the action is between herself and her husband, she may sue or be sued alone."