1. An act of the General Assembly, which provides that it shall take effect from
its passage, takes effect on the day of its approval by the Governor, and must be re-
garded as being in force during the whole day upon which it is approved, in con-
formity to the general rule that where a computation is to be made from an act done,
the day upon which the act is done is to be included.-Mallory & Co. vs. Hiles.... 53
2. A judgment was rendered on the 24th day of May, 1861, for debt due by note,
the same day on which the Governor approved the act, entitled, "an act to suspend
the circuit and other courts in this Commonwealth, and for other purposes," by which
the rendition of such judgments was prohibited from the passage of the act until the
1st day of January, 1862. It did not appear at what hour the act was approved, nor
at what hour the judgment was rendered. Held, That the judgment was improper-
ly rendered, because the act was in force during the whole of the day.-Ib......... 54
1. An alien cannot inherit land in this State. (Hardin, 61; 2 Met., 187.) But
an alien friend, residing in this State two years, is entitled to receive, held and pass
any right to land within the Commonwealth during the continuance of his residence
after that period. (1 Statute Law, 112; 1 Revised Statutes, 239.)- Yeaker va
Yeaker..
2. Where by a treaty with a foreign nation, foreigners are allowed three years
within which to claim real estate coming to them in this State by devise or descent,
and to make disposition thereof, they must assert their right within that period, be-
cause there is nothing forbidding the State legislation which denies the right to that
class of persons after that time-the State law being so far affected by the treaty as
to become inoperative for that period but no further.-I............
33
See Confiscation. Constitutional Law.
In an action against several defendants, for assault and battery, they filed separate
answers; a joint verdict was rendered against them, and judgment entered according-
15. A new trial was granted as to one, (an infant, because no guardian ad litem had
been appointed,) and refused as to the others, against whom the judgment was al-
lowed to stand for the sum named in the verdict. The judgment is affirmed, (Judge
Williams dissenting.) Civil Code, sec. 402; 15 B. Mon., 547.)
See the dissenting opinion of Judge Williams.-Buckles vs. Lambert..
1 Assignments-Assignor and Assignee.
IN CONTEMPLATION OF INSOLVENCY-
1. 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.-Applegate & Co. vs. Murrill............. 22
2. The right of an attaching creditor, (under the act of 1796 to prevent fraudulent
sales and conveyances,) to set aside a sale which is merely fraudulent and colorable,
and to subject to the payment of his debt the property and effects of the fraudulent
vendor, is not taken away or impaired by the act of 1856 to prevent preferences
among creditors in contemplation of insolvency. The former act was not repealed
by the latter; they embrace distinct classes of cases, and provide appropriate reme-
dies for each.-Millett vs. Pottinger.........
3. The act of 1856, supra, does not prohibit, or afford a remedy for, sales or assign-
ments that are merely fraudulent, although it prohibits the preference which the act
of 1796 allowed.-Ib.............
4. To maintain the right conferred upon creditors by the act of 1856, supra, it is
indispensable to show: first, that the sale, mortgage or assignment was made "in con-
templation of insolvency," and, second, that it was made by the debtor "with the de-
sign to prefer one or more creditors, to the exclusion in whole or in part of others."
The absence of either of these essentials is fatal to the claim of the party seeking the
benefit of the act, however fraudulent the transaction may be.—Ib... .......... 213
5. In July, 1861, a debtor conveyed 70 acres of land to a creditor, in payment of
$1,000 due him. In November afterwards, he conveyed the residue of his land to
sureties, in consideration of their agreeing to pay debts, amounting to $5,020, for
which they were bound for him. At the time of the first conveyance he owned no
property subject to his debts except the lands, and his debts amounted to over $12,-
000. The lands were worth about $6,000. Held, That the conveyances were made
in contemplation of insolvency, and for the purpose of preferring some of his credi-
tors over others.-Story vs. Graham.....
.............319
6. Quere. Must a creditor, who attacks conveyance by his debtor upon the ground
that it was made in contemplation of insolvency, and with the design to prefer eer-
tain creditors, allege in his petition that the conveyance was made within six months
before the commencement of the action? (See 2 Met., 146; Ib., 457.)-Ib........319
1. The payor of a note, when sued by an assignee, has not merely an equitable,
but a legal right to avail himself, as matter of defense, of any usury embraced in the
note, or of any payments made to the payee before notice of the assignment-— True,
&c. vs. Triplett..
2. Payor of a note, sued by assignee of payee, pleads certain payments to payee
before notice of the assignment, as a set off, and usurious interest embraced in the
note, as a counter claim. Held, That the answer presents only matter of defense.
and no reply is necessary; and that the assignor is not a necessary party to the con-
troversy between the payor and assignee.- Ib................
3. By the law of this State, a remote assignor of a note is not primarily liable te
the holder; and the immediate assignor is only liable for the consideration received.
with six per cent. interest, and the hoer cannot make him liable without first pros-
ecuting the payor with diligence. Otherwise by the law of Louisiana.—Skort, de.
08. Trabue.......
1. The Revised Statutes, chap. 56, art. 2, sec. 6, provides that upon the return of an
attachment for rent issued by a justice of the peace, to the circuit court, the pro-
oceding shall be the same as on other common law attachments." This must be con-
strued as referring to attachments then authorized by the Code of Practice, title 8
chapter 3. An order discharging such attachment, on motion, upon the ground that
it was obtained upon an insufficient affidavit, is not a final order from which an ap-
peal can be prosecuted. The party desiring a reinstatement of the attachment should
obtain leave and apply to a judge of the court of appeals. (Original Code, secs. 366
to 309.)-Leet vs. Lockett.........
2. How a valid statutory bond to perform the judgment of the court in an attach-
ment case may be enforced.-Ib.........
3. A judgment, giving priority to one creditor over another, as to attached funds
of a debtor, which does not distribute the fund, nor give any other relief to either of
the parties, is not a final order. (Bondurant vs. Apperson, ante.)—Hanson vs. Bow-
108
4. The filing of an affidavit by the defendant controverting the ground upon which
an attachment issued, and praying for a discharge thereof, is an appearance to the
action. The attachment authorized by section 221 of the Civil Code is a provisional
remedy in a personal action. It is not distinct and cannot be separated from the ac-
tion. They constitute but one proceeding.- Duncan vs. Wickliffe........118
5. In section 289 of the Civil Code, which declares that the affidavit of the plain-
tiff upon which the attachment is issued, and the affidavit of the defendant contro-
verting that of the plaintiff, shall be regarded as the pleadings in the attachment,
the words, "and have no other effect," were introduced merely for the purpose of
preventing the affidavits from being regarded as evidence.—Ib....................
6. A defendant, against whom an attachment issues, appearing and not contesting
it, it must be regarded as valid.. (Civil Code, sec. 287.)-Spalding vs. Simms......285
7. The courts incline to an equitable construction of the attachment laws, so as to
secure the rights of creditors, and to make the statutes remedy the evils as designed
by the legislature enacting them. (10 Grat., 289; 10 Ib.,448; 10 Rich., 15.—Ib....285
8. Where the debtor leaves his home, with the intention of going out of the State
and consumates this purpose, and is absent from his home pursuant to such intention
for the period of four months, it must be regarded as absence from the State and
ground for attachment; although some unlooked-for casualty may have delayed him
& few days from passing beyond the territorial boundary of the State.-Ib..........285
9. It is error to render judgment sustaining an attachment against a non-resident
defendant, not summoned, and who does not appear, without a warning order against
him. (Civil Code, sec. 88.)-Allen va. Brown........
10. The affidavit of the plaintiff to obtain an attachment must state that his claim
is just. The omission of such statement is cause for reversal. (Civil Code, sec. 222;
17 B. Mon., 542; 3 Met., 281.) But, upon the return of the cause to the circuit
court, the plaintiff may be allowed to amend his affidavit. (Civil Code, sec. 161.)-
Ib
...342
11. The act of March 15, 1862, (Sess. Acts, 92,) relates only to the "grounds of
attachment," and authorizes the plaintiff to amend merely for the purpose of stating
grounds which existed when the attachment was obtained, not set forth in the origi-
nal affidavit, or new grounds arising subsequently. It does not authorize an amend-
ment with reference to the nature, justness, or amount of the plaintiff's claim.
But-
Bastardy-Bills of Exchange.
Section 161 of the Civil Code applies to proceedings by attachment on affidavit,
and authorizes the amendment of a defeetive affidavit. There is no difference in
principle between allowing the amendment of a petition on which an attachment is-
sues, and the amendment of an affidavit on which an attachment issues. The ruling
in Pool vs. Webster, &c., (3 Met., 282,) not adhered to. (2 Met., 286; 18 B. Mon.,
230; 17 Ib., 324; 2 Met., 138.)-Ib...............
..342
12. An attachment, issued upon a defective affidavit, is not void; but is within
the general rule that the proceedings of a court, having jurisdiction of the person
or subject, are not void, however erroneous they may be. The ruling in Pool vs.
Webster, (3 Met., 281,) not adhered to.-Ib...........
1. Under the Revised Statutes, chap. 6, an appearance by a defendant is not neces-
sary to authorize a trial of a bastardy case. It is not a criminal, but a civil pro-
ceeding. Chandler vs. Commonwealth.....
..... 66
2. Where a defendant in a bastardy case fails to appear, in compliance with bis
recognizance, the court is not thereby deprived of its jurisdiction over the case, but
may give relief by trial and judgment against the defendant upon his failure to
appear, and by an attachment to compel performance of the judgment-Ib....... 66
3. That the father of a bastard child is an infant does not relieve him from a
prosecution, under the statute, for its support. Infauts are liable for their tortious
But a guardian ad litem should be appointed to defend him.-Ib.......... 66
4. Under the provisions of the Civil Code a bastardy case is a special proceeding,
and not an action. It is not for a penalty or forfeiture, nor is it for the enforcement
of a private right within the meaning of the Code.-Ib................
5. The defendant in a bastardy case is not entitled to a 'continuance on account of
his absence as a soldier in the armies of this State and the United States. The acts
of March 8, and March 11, 1862, are not applicable to proceedings in bastardy
cases.-Ib.
6. Evidence of a promise of marriage is not admissible on the trial of a bas-
tasdy case.- -Ib............
7. The circuit court has no jurisdiction of an appeal from a judgment of the county
court upon a forfeited recognizance for the appearance of a defendant in a bastardy
case. An appeal from such judgment is exclusively cognizable by the court of ap-
peals. Commonwealth v. Taphorn........
..... 71
1. Under the statute of Louisiana a protest by a notary after a presentment by his
deputy is authorized; and a certificate of protest by the notary, although it shows
that payment of the bill was demanded by his deputy, is valid. The statute quoted
and construed.-Lee, Ivy & Co. vs. Buford....
2. In a suit by an indorsee against the acceptor of a bill of exchange, where the
first part of the bill sued upon has been accepted, and protested for non-payment,
the production of that part of the bill is prima facie sufficient to entitle the plaintiff
to a judgment. It is not necessary to file the second part. The defendant must
show that some ground of defense exists which displaces the prima facie title made
out by the plaintiff. So, where the action is for non-acceptance, it is sufficient to
produce the part of the bill protested for non-acceptance. (13 Peters, 205.)-John-
son vs. Offutt........
3. The holder's discharging, or giving time to, any of the parties on a bill of ex-
change, will be a discharge of every other party who, upon raying the bill, would
be entitled to sue the party to whom such discharge or time has been given. Thus
the drawer and indorsers will be discharged by a release of the acceptor, or by a
valid agreement between the holder and acceptor, in which the drawer and indorsers
do not concur, whereby time is given the acceptor for payment of the bill after it is
due. Bank of Ky. vs. Floyd
4. But a discharge or release by the holder to any party upon the bill, will not dis-
charge the antecedent parties who are liable to him for the debt, but will only dis-
charge the subsequent parties. Thus (the parties being severally liable, according
to their respective positions, on the bill,) a release by the holder to the last two in-
dorsers will not discharge the liability of either the drawer, acceptor, or prior in-
dorser.-Ib
5. In such case the antecedent parties are not entitled to have the sums severally
paid by the two indorsers to the holder of the bill, in consideration of their release,
credited as payments upon the bill. The amount paid neither increased nor dimin-
ished the liability of the prior parties.-Ib.....
The territorial jurisdiction of Kentucky, according to the boundary defined by the
Revised Statutes, (chap. 8, art. 1, sec. 1,) has been recognized by the court of ap-
peals. Spalding vs. Simms...
1. The act of Congress, approved July 17, 1862, entitled, “An act to suppress in-
surrection, to punish treason and rebellion, to seize and confiscate the property of
rebels, and for other purposes," after declaring that all the estate and property,
money, stocks, and credits, of certain officers of the Confederate States, and of cer-
tain other persons therein mentioned, shall be seized and confiscated, by proceedings
in rem in the Federal courts, declares that, "it shall be a sufficient bar to any suit
brought by such person for the possession or the use of such property, or any of it,
to allege and prove that he is one of the persons described in this section." Held,
First, that the last named provision applies to suits for the recovery of debts; second-
ly, that it was designed to apply to suits in the State as well as the Federal courts.--
Norris vs. Doniphan................
...............385
2. If the provisions of the act, concerning the seizure and confiscation of such
property, are unconstitutional and void, it seems clear that Congress has no power
to prohibit the State courts from giving to the owners the relief to which they are en-
titled by the laws of the States. Ib......................
3. The forfeitures, or confiscations, proposed by this act, are to be effected on ao-
count of offenses which the owner may commit, without reference to the use of his
property; hence, the doctrine that property which is used to violate a blockade, or
revenue laws, may be forfeited by proceedings in rem, without conviction of the own-
er, has no application to this case.-Ib............
..................385
4. That clause of the constitution which authorizes Congress "to declare war, grant
letters of marque and reprisal, and make rules concerning captures on land and
water," has no bearing on this question. It relates only to wars with foreign nations.
(The Brilliant vs. United States.)—Ib.....
|