Final Order-Forfeited Recognizance.

FINAL ORDER-

1. A final order either terminates the action itself, decides some matter litigated
by the parties, or operates to divest some right in such a manner as to put it out of
the power of the courts making the order, after the expiration of the term, to
place the parties in their original condition. (15 B. Mon., 48.)—Applegate vs. Ap-
plegate...........

..236

2. An order of a county court refusing to qualify a person as a deputy sheriff on
motion of the sheriff, is not a final order, and no appeal lies.-Ib........................................236
See Judgment.

FIXTURES-

1. Eee the opinion in this case for a discussion of the question as to the rights to
what are called fixtures; (1,) as between heir and executor; (2,) between the executor
of a tenant for life and the remainder man or reversioner; (3,) between landlord and
tenant; (4,) in respect to fixtures erected for the purposes of trade; (5,) between ven-
dor and vendee, mortgagor and mortgagee.-Johnson vs. Wiseman ........................... ....... .........................
357
2. Upon the sale of the freehold, fixtures will pass in the absence of any express
provision to the contrary.-Ib.....
...............357

................

........

3. What will give chattles the character of fixtures and deprive them of that of
personalty? See opinion for a review of the authorities on this subject.-Ib...357
4. In this case chandeliers or gas burners in a house are held to be fixtures.-
Ib.........
..358

FORCIBLE ENTRY AND DETAINER-

1. The provisions of the Civil Code regulating proceedings in cases of forcible
entry and detainer, (sections 500 to 518, inclusive,) are a substantial re-enactment of
the act of 1810. (Statute Law, 715.)-Belcher vs. Barret, &c.............

2. The want of a judgment upon the verdict of a jury in the country, on a writ
of forcible entry and detainer, is no ground for dismissing the traverse in the cir-
ouit court. Such judgment is not necessary to enable a party to maintain a tra-
Ib................

verse.

3. In such case the truth of the inquisition in the country is the only matter in-
volved in the issue to be tried by the jury in the circuit court.-Ib......... 307
4. Upon an inquest in the country on a writ of forcible entry and detainer, the
verdict of the jury, "the defendants not guilty," is sufficiently explicit and respon-
sive to the inquiry submitted to them, and a traverse thereof may be brought.
Strict technical precision and regularity not required in verdicts and proceedings
under the statutes regulating this remedy.
.307

FORFEITED RECOGNIZANCE-

1. A recognizance, entered into in October, 1860, was filed in the clerk's office in
December, 1860. The case was before the grand jury at the term to which the de-
fendant was recognized, who reported to the court that they had failed to indiet; but
the court failed to enter of record the discharge of the defendant and the exoneration
of the bail. (Crim. Code, sec. 116.) In September, 1862, (no indictment in the
meantime having been found, nor any other step taken towards the prosecution of
the charge,) proceedings were taken to forfeit the recognizance. Held, That the cir-
cuit court properly dismissed the proceeding, the effect of which was to exonerate all
the parties from liability on the recognizance-an order which, under the section
supra, should have been made upon the failure of the grand jury to indict.-Common-
wealth vs. Roberts........

Frauds, Statute of-Gaming.

2. In an action upon a forfeited recognizance the defendant must make a written
statement of the facts constituting his defense. Without this the mere exhibition to
the court of the evidence relied on by him, either to defeat or suspend the action,
will be disregarded.-Brown vs. Commonwealth.....

......

.221

3. In such case the production of the respite of the Governor, not relied on by
pleading, constitutes no defense to the action. The court is not authorized to take
any judicial notice of the paper presented in that way.-Ib...........

..........221

4. That the Governor remits, not the forfeiture, but the judgment itself except as
to "fees and costs," furnished no ground for setting aside the judgment so in part
.221

6. The power of the circut court to remit, in whole or in part, the penalty of a for-
feited recognizance, is derived solely from section 94 of the Criminal Code, and is a
judicial, not an arbitrary discretion, to be exercised upon consideration of the fact,
relied upon in the defense. (1 Met., 383.)-Commonwealth vs. Rowland............225
6. The fact that the defendant had been either surrendered or arrested must be al-
leged and shown in the defense, and is indispensable to the exercise of the discretion
allowed by section 94, supra. And, quere, what additional fact or facts, (if any,) will
be necessary to justify a remission in whole or in part of the penalty.-I.. .225

FRAUDS-STATUTE OF-

......

1. A sale of standing trees, in contemplation of their immediate separation from
the soil, by either the vendor or vendee, is a constructive severance of them, and
they pass as chattles; and, consequently, the contract of sale is not embraced by the stat-
ute of frauds. (1 Green. Ev., sec. 271; 13 B. Mon., 340.) And this though no definite
time be fixed for their removal.-Byassee vs. Reese....

......

2. The phrase, "in contemplation of immediate separation from the soil," is used
to distinguish a sale of standing trees, or growing crops, which passes no interest in
the land, except a license to enter upon it for the purpose of removing them, from a
contract conferring an exclusive right to the land for a time for the purpose of mak-
ing a profit out of the growth upon it.-Ib....

.............372

3. Where standing trees are sold as chattles, the selection and morking of them by
the purchaser, with the knowledge and consent of the vendor, is a constructive de-
livery, and the title vests in the purchaser. But-

In such case, if one bona fide purchase the land for a valuable consideration paid,
and acquire title thereto, before he had notice of the sale of the trees, he is entitled
to them, and the purchaser of the trees must look to his vendor for damages. That
he had notice before the trees were cut would be immaterial.-Ib...

GAMING-

1. The second and fourth sections of chapter 42 of the Revised Statutes, (title GAMING,)
secure to the loser and his creditor the right to sue for money or property lost at
gaming, for five years, and the exclusive right to do so for six months, after which
any other person may sue for its recovery within the five years; the one first suing to
have the preference.-Barnes vs. Turner.......

2. If the loser or his creditor sues, the recovery will only be the amount lost, and
be for the sole benefit of the party suing. If another sues, the recovery will be
treble the amount lost and won, one-half to the use of the plaintiff, the other to the
Commonwealth.-Id
.............114

............

3. Although more than six months may have elapsed, the loser has the right to
adjust the loss by private arrangement with the winner, if no other person has com-

General Assembly-Guaranty.

menced suit. If the transaction be made in good faith by both parties, and free
from any device to evade the statute, both the winner and loser should be protect-
ed.-1b

GENERAL ASSEMBLY-

............114

A member of the legislature in attendance upon its session, is not privileged
against being served with a summons in a civil action.-Johnson vs. Offutt......... 19

GIFTS-

1. Gifts causa mortis are in general conditional, like legacies, but it is absolutely es-
sential to them that they be made by the donor in his last illness, or in contempla-
tion or expectation of death.-Knott's adm'r. vs. Hogan..........

99

2. To make a valid gift, simply so called, or a gift inter vivos, it is essential that it
should be irrevocable by the donor. (5 Litt., 12; 5 Mon., 170; 4 B. Mon., 538.)-
Ib

99

3. At the time a note for money loaned was executed, payable three years after
date, the interest thereon to be paid annually, the payee executed and delivered to
the payor, a writing stipulating that, if the payee should not collect the note in her
lifetime, her representatives were directed to surrender it to the payor, "as I intend
it as a gift from me to him." The payee retained the note in her possession during
her life, and died within less than a year after the execution of the writings. Held,
That this is not a valid executed gift which a court of equity should enforce.-
Ib.....
................ 99

4. The writing supra, might, if established according to the requirements of the
statute of wills, take effect as a testamentary disposition.-Ib...

GUARANTY-

99

1. It is a general rule that if a person offers to pay money upon the performance
of an act by another. the performance of the act by the latter, without any notice of
his acceptance of the offer, or of his intention to act upon it, gives him a right to
demand the money. But it is settled as an exception to that rule, that where the
offer is to guaranty a debt for which another is primarily liable, in consideration of
some act to be performed by the creditor, mere performance of the act is not sufficient
to fix the liability of the guarantor; but the creditor must notify the guarantor of
his acceptance of the offer, or of his intention to act upon it. (2 Amer. Lead. Cases,
pages 35 to 107; 7 B. Mon., 5; 13 b., 381; 14 Ib., 184; 7 Pet., 113.)—Steadman vs.
Guthrie

2. That the guarantors might, by inquiry from the person in whose favor the guar-
anty was given, have learned what had passed between the guarantees and himself,
will not dispense with notice. A person thus proposing to become surety for an-
other is not bound to inquire as to the acceptance of his proposal-the creditor, whe
intends to hold him responsible for the debt of another, must show that he had rea-
sonable notice of such intention.- Ib.................
..............148

3. When notice of the acceptance of an offer to guaranty is requisite, (in an action
on such guaranty,) the allegation of notice in the petition should be special, and such
as will enable the court to determine from its statements whether or not the notice
was given as the law requires. (2 Ala., 373; 3 Conn., 438.) The general averment,
"of all which the defendants had notice," is not sufficient. Ib......................... 148
4. Plaintiff alleged in his petition, in substance, that public confidence in C., a
banker, being greatly impaired, in consideration that the plaintiff and the other de-

Heirs and Devisees-Husband and Wife.

positors would forbear to withdraw their deposits, and would permit C. to keep and
use the same during the panic or until he could conveniently pay them, and to pre-
vent a run upon him, and of sustaining his credit, the defendants signed and deliv-
ered to C., (the banker,) and published in the newspapers, the following instru-

ment:

"Louisville, Oct. 1, 1857. We the undersigned agree to guaranty the depositors
of W. E. C. in the payment in full of their demands against said C., on account of
money deposited with him. We have entire confidence in his ability to meet all de-
mands." That the paper was shown to plaintiff by C., and that accepting and re-
lying upon the same, he, upon the faith of the guaranty, forbore to withdraw his
money as he purposed to do, of all which defendants had due notice; and that C.
failed and closed his banking house on the 5th of October, 1857. Held, (upon de-
murrer to the petition,) That the petition is fatally defective for want of special
averment of reasonable notice to the guarantors of the plaintif 's acceptance of the
offer, or of his intention to act upon it.—Ib................

See Consideration.

HEIRS AND DEVISEES-

.............148

1. Where lands are devised by a testator, and after his death a patent issues to
him therefor, the legal title upon the issuing of the patent vests in his heirs, who
bold the title thus acquired in trust for the benefit of the devisees under the will.-

2. In such case, in a suit by the devisees to recover the land, the heirs are neces-
sary parties; and the action must be in equity.-Ib............
.255

HUSBAND AND WIFE-

1. The release by a wife of her potential right of dower forms a valuable consid-
eration, sufficient to sustain a settlement upon her by her husband, even against his
creditors. Ward vs. Crotty, &c............................

....... 59

2. An agreement by a husband to transfer to his wife a note, for a part of the pur-
chase money, for her separate use, in consideration of her release of her potential
right of dower in land sold by him, is binding in equity, and may, upon her appli-
cation, be specifically enforced against him--Ib..............
59

3. A husband sold land in which his wife had a potential right of dower, which
she refused to release unless he would give her one of the notes which he had taken
from the purchaser. He agreed to assign the note to her for her separate use, and
delivered it to her, endorsed, "I assign the within note to C. W., [the wife,] for sat-
isfactory consideration." No trustee was named, nor was the assignment recorded.
She then signed and acknowledged the deed. Afterwards his creditors sought to
subject the note, when she asserted her claim thereto. Held, That against the sub-
sequent creditors she is entitled to the note. Against the prior creditors she is enti-
tled to the value of her potential right of dower at the time she released it, with in-
terest; the residue, if any, due upon the note, to go to the prior creditors.-Ib... 59
4. In an action by husband and wife, and their assignee, upon two notes, one of
which was executed to her, and the other to her and her husband jointly, and both
reciting that they were given to secure the rent of a tract of land which had been as-
signed to her for dower in the estate of her former husband, who died in 1851, held,
that the defendant cannot set up demands against the husband as a set off against
the debts sued on.-Green va. Carson.......
76

Husband and Wife.

5. The case of Smith, &c. ve. Long, &c.,(1 Met. Ky. Rep., 486,) merely decides that
where a husband and wife had jointly executed a bond for the conveyance of land
belonging to the wife, and had put the vendee in possession, she was not entitled in
equity to recover of the vendee rent for the time he had occupied the land under the
purchase.-Ib..................

6. Antenuptial executory contracts between husband and wife, to be performed
during marriage, have been frequently enforced in equity, although void at law.—
Maraman vs. Maraman.........................................................................
..... 84

7. Conveyances from husband to wife, without a trustee, have been frequently sup-
ported in equity, although at law, as a general rule, executed as well as executory
contracts between them, without a trustee, are void.-Ib..............
84

8. At law the husband is entitled to a note given to his wife by a stranger. Yet,
where the purchaser of land executed a note payable to the vendor's wife, in pur-
suance of an agreement between the husband and wife, and in consideration of her
releasing dower, her right to the note was sustained in equity.-Ib... 84
9. A husband is legally entitled to his wife's earnings, but his agreement to give
them to her has been held valid in equity.-Ib............

84

10. Executory contracts between husband and wife, without the intervention of a
trustee, have been held to be valid in equity. As a general rule, wherever a con-
tract would be good at law, when made with trustees for the wife, that contract will
be sustained in equity when made by husband and wife with each other without the
intervention of trustees, if it does not affect the rights of third persons.—Ib...... 84
11. If, in consideration of a married woman conveying her land and slaves for her
husband's benefit, he agrees to pay the value of her interest to a trustee for her sep-
arate use, the contract will be valid at law. If there is no trustee, her equitable
right to the money will not be defeated, because whenever a separate use is created
for a married woman, whether by her husband or by a stranger, whether by an exe-
cuted or executory contract, equity will if necessary make her husband her trustee-

.... 84

12. Nor is it necessary, in order to give her a right to the money for her separate
ase, that the notes of the husband to her should be so expressed. Though a stran-
ger's conveyance of property or covenant to pay money to a married woman, or to
a trustee for her, in order to give her a separate use, must contain words indicating
such intention, such words are unnecessary in a husband's conveyance or covenant.-
fb..................

85

13. Sec. 2, art. 2, of chap. 47, of the Revised Statutes, which provides that hus-
band and wife may sell and convey her chattel real, or slave, in the same mode
as the land of the wite may be sold and conveyed, and that "the proceeds shall be
his, unless otherwise expressly provided in the conveyance or the obligation of the
purchaser” does not apply, nor is there any similar provision applying to a wife's
real estate. But where the wife joins with the husband in selling her slaves in order
to give him the proceeds, and for that consideration he gave her his note, such a
provision is not necessary in order to give her an equitable claim on the husband for
the value of the slaves in accordance with his agreement. Ib............................ 85
14. That the husband was dealt with and obtained credit upon the faith that the
proceeds of land and slaves of the wife belonged to him, does not, so far as he and
bis rrpresentatives are concerned, constitute a defense against a recovery by her
upon a note executed by him to her in consideration of her conveyance of the prop-
erty for his benefit.-Ib.....
...... 83