Husband and Wife-Indictment.
15. Nor does the fact that part of the proceeds of the property was used by the hus-
band in paying store accounts contracted by her, and in purchasing a carriage for
her and by her direction, constitute a defense against such recovery.--Ib............ 85
16. But, though a married woman is equitably entitled to have notes, which were
executed by her husband to her in consideration of her conveyance of her land and
slaves for his benefit, paid out of his estate, yet where her claim is a mere equity,
and there is no legal demand to which she can be substituted, it cannot be en-
forced to the prejudice of her husband's creditors in a settlement of his insolvent
estate. Ib..........
17. Where the husband reduces to possession, without resort to a court of equity,
an interest in an estate descended to the wife, consisting of cash, he acquires a com-
plete legal right to it, and the wife has no equity to a settlement against his credi-
tors seeking to subject property, (a slave,) purchased by the husband, and conveyed
to a trustee for her benefit; even if he was induced to make the conveyance because
he had received money which his wife derived by inheritance. It must be considered
an a voluntary conveyance.-Hurdt vs. Courtenay .......
.................140
18. See the opinion for a statement of facts, such as the condition of the husband's
pecuniary affairs, &c., upon which it is held that a voluntary conveyance of a slave
by a husband to a trustee, for the use and benefit of his wife, was fraudulent, and
avoided the deed as to a subsequent creditor........................... ................
19. A feme covert, having a vested right to a legacy, not due, her husband, upon
her death, is equitably entitled thereto. (6 Gill & John., 507.) And, there being
no demands against her estate, he may recover it from her administrator when duc.-
................216
20. The provision of sec. 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 hus-
band, she may sue alone, relates merely to the form of procedure, and confers no new
right of action.--Matson va. Matson............
................ 262
21. 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 hus-
band.--Ib...... ........................... ...........................
22. 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 re-
fuses to deliver to her; no other ground of relief, legal or equitable, being alleged.-
Ib..............
23. 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
violation of his trust. But his mere possession of the slaves, nothing else appearing,
is not sufficient to show such abuse. Ib.....................
24. Although there are cases in which a court of equity will lend its aid in the ad-
justment 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.--Ib........... ..............263
See the opinion for a case in which the facts stated in an indictment for accepting
a challenge to fight in single combat with deadly weapons, were held sufficient.-
Heffren ve Commonwealth.........
........................................................................................................
1. In an action against the indorser of a note, payable in one State and indorsed
in another, the laws of which differ, the liability of the indorser depends upon the
law of the place of indorsement, and not upon that of the State where it is payable,
nor upon the lex domicilii.
2. The indorsement, by a citizen of Louisiana, made in Kentucky, upon a note
payable to him in Louisiana, is governed by the law of Kentucky.—Short, &c. vs.
Trabue &c
1. The statute authorizing the sale of the real estate of infants must be strictly
complied with. The report of the commissioners appointed to appraise the estate of
the infants, must be full and explicit on all the matters which, by the statute, they
are required to ascertain and report to the court. Without this the court has no ju-
risdiction to decree a sale.- Woodcock vs. Bowman.......
.... 40
2. Among other things the report of the commissioner must show "the net value
of the real and personal estate, and the annual profits thereof." See the opinion for
a report held insufficient in its statement of the value of the infants estate, as well
as in other respects. It must state the "net value."-Ib..........
.... 40
3. An order appointing commissioners authorized them simply to "value the in-
fants real estate." It may well be questioned whether such defect in the order of
appointment would be cured by a report subsequently made in conformity with the
law and approved by the court-a point not decided.—Ib....................................
4. In a proceeding for the sale of infants' real estate under the statute, the record
must show that the commissioners, appointed to report the net value of the infants'
estate, &c., were sworn; otherwise the court has no jurisdiction to order a sale, and
the sale, if made, will be void.- Watts vs Pond...........
5. The report of the commissioners must show whether the interest of the infants
requires the sale to be made, or the sale will be void. It will not be sufficient to state
that in their opinion "it would redound to the benefit of the said infants to have said
land
sold."-Ib........................................................................................... 62
6. Sec. 466 of the Civil Code, which provides for the sale of slaves and real estate
descended or devised to the heirs or devisees of a decedent in an action for the set-
tlement of his estate, where it appears that the personal estate is insufficient for the
payment of debts, is limited, so far as it relates to the real estate of infant heirs and
devisees, by sec. 539 of the Code.-Gill vs Giving...........
..........197
7. So much of the real estate of an infant heir or devisee, (under the sections
supra,) as may be necessary to pay the debts of the ancestor or testator, may be sold
in a proceeding to settle the decedent's estate; but if more than is necessary for that
purpose be sold, except in the mode prescribed by the Revised Statutes, in chapter
86, the judgment ordering the sale, and the sale made thereunder, are void........197
Where the heirs are adults, such judgment, though erroneous, would not be void.-
Ib...........
8. Quere. Would an order for the sale of so much of the real estate, descended
or devised to an infant, as might be necessary to pay a certain sum adjudged to be
due to the decedent's creditors, be void, if erroneous as to the sum adjudged to be
due?-Ib.
...........197
9. The statute which provides that no action shall be brought to charge any per-
son upon a promise to pay a debt contracted during infancy, or a ratification of a
contract or promise made during infancy, unless the promise or ratification, or some
memorandum or note thereof, be in writing, &c., (Rev. Stat., chap. 22, sec. 1,) ap-
plies to all cases in which the plaintiff relies upon a promise or ratification, such as
the statute refers to, in support of his action, whether he declares upon it, or proves
it to avoid the plea of infancy.-Stern vs. Freeman......
10. The statute supra applies to every express promise to pay a debt contracted
during infancy; but not to an express promise to perform any other contract made
during infancy, unless such promise is embraced by the word "ratification."—
Ib............
11. A writing, showing that the defendant has performed an act of ratification, is
as effective as one containing an express ratification.-Ib................... ..........310
12. Where a writing, addressed to another than the plaintiff, is relied upon, not as
constituting a ratification, or containing a promise; but, as evidence of a ratification
previously made by the defendant, it is entitled to the same weight as if it had been
addressed to the plaintiff.-Ib..................
13. An infant purchased the interest of his partner in a mercantile concern, and
gave his notes therefor, After coming of age, he retained possession of the property
and dealt with it as his own; in his own name and for his own benefit conducting
the business, selling the goods and collecting the debts which had belonged to the
late firm. The facts inferred from a letter written by him to a creditor of the firm,
as well as from the statements of his answer. Held, That these acts were a ratifi-
cation of the purchase, and he must pay the notes given for the purchase money.
(1 Greenleaf, 11; 8 Ib., 405; 2 Kent's Com., 253.)—Ib..........
1. Where a condition of a policy of insurance requires the insured to deliver an
account of their loss, with their oath or affirmation declaring the account to be true
and just, &c., the affidavit of the insured is admissible to prove a compliance with
such condition, but for no other purpose, and the court should so inform the jury.-
Phoenix Ins. Co. vs. Lawrence.....
2. If a policy of insurance has ceased to have any effect, by reason of the insured
having kept prohibited articles in the house, a promise by the insurer's agent, hav-
ing authority to adjust and pay losses, with knowledge that the prohibited arti-
cles were kept in the house at the time of the fire, will not bind his principal.
Ib..................
3. A firm obtained insurance upon a storehouse and the stock of goods therein
for a separate sum.
The interest of the insured in the house was incorrectly de-
scribed in the policy as belonging to the firm, whereas it was the property of one
of its members. In a suit brought to recover for the loss of the goods-Held, in
the absence of proof that the plaintiffs procured the insurance on the house for a
fraudulent purpose, or that their supposed interest in the house induced the de-
fendant to insure the goods, that this does not vitiate the insurance on the goods.-
Ib..................
4. The constructive possession of the sheriff by virtue of the levy of an execu-
tion upon goods which have been insured, where the insured retains the actual
possession, does not vitiate the policy. Otherwise where a conveyance is made
which terminates the interest of the insured in the goods.-Ib.......
5. Although a policy of insurance contains a clause prohibiting “any transfer of
the interest of the insured by sale or otherwise," without the consent of the insurer,
yet a deed made by the insured, conveying the goods to assignees in trust to pay
creditors, will not render the policy void, the insured retaining the actual possession
of the goods.-Ib............
Judgments-Landlord and Tenant.
6. If by the terms of a policy of insurance the keeping or storing of certain ar-
ticles on the insured premises is prohibited during its continuance, and the policy
only suspended whilst they are so used, the policy is not thereby rendered void.—
Ib......
9
7. The conditions and enumeration of hazards form parts of the policy, and if
articles prohibited by the policy, (whether by provisions in the body of it or annexed
to it,) are kept by the insured, the burden is not upon the insurer to show that the
keeping thereof caused the loss or increased the risk. (1 Phillips on Ins., sec. 866.)
But the keeping of such articles by the insured, when the policy was obtained, did
not render it void unless they concealed that fact from the insurer.-Ib............. 9
8. In an action against an insurer, the defendant, not being presumed to know
what prohibited articles were kept by the plaintiff when the loss occurred, is not
bound to specify them in his pleadings. But where he specifies some, without alleg-
ing that any others were kept, the jury should not be permitted to consider any ex-
eept those specified.--Ib..........
1. A judgment cannot be final merely because it decides some question of law or
fact, relating even to final relief, nor merely because it decides what are the rights
of the parties as to such relief.-Bondurant ve. Apperson...............
2. A judgment to be final must not merely decide that one of the parties is enti-
tled to relief of a final character, but must give that relief by its own force, or be en-
forceable for that purpose without further action by the court or by process for con-
tempt.-Ib.............
..... 30
3. An order sustaining an attachment, made before final hearing, is not a final or-
der, and is not the subject of an appeal. (Bondurant vs. Apperson, supra; Civil
Code, secs. 285, 291, 292; 14 B. Mon., 195.)-Hanson vs. Bowyer...
1. The summoning of bystanders to serve as grand jurors, when properly ordered,
is a duty in the performance of which the accused in a criminal case is entitled to
the services of the sheriff, or coroner where there is no sheriff. If summoned by one
specially appointed by the court, the indictment may be quashed. It is a substan-
tial error. (Crim. Code, secs. 159, 98: Rev. Stat., chap. 55; act of March 17, 1862,
Bess. acts, 95.)-Commonwealth vs. Graddy......
2. Sec. 194 of the Crim. Code, which authorizes the court, for sufficient cause,
to designate some other officer or person to summon jurors, relates only to petit
......223
3. Where the grand jury is composed of jurors selected by commissioners, as di-
rected by the Revised Statutes, the court say they incline to the opinion that the
summoning of them by a person other than the sheriff or coroner would not be "a
substantial error."-Ib.............
I. 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 under-
tenant, 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 sec. 722 of the Code......
2. Quere. In the case supra, would not the party be entitled to relief in equity?—
See Mechanic's Lien. Notice. Mortgages.
1. Mere lapse of fifteen years and a few days, without execution upon a judg
ment, does not raise a presumption of payment.- Chiles & Thomas vs. Monroe... 12
2. The title of an act, passed in 1858, is, "An act to amend the second section
of article sixty-three, of the Revised Statutes, entitled 'limitation of actions and
Buits.'" The act declared "that the provisions of chapter sixty-three, of the Re-
vised Statutes, shall extend to and embrace all cases in which the right of action
accrued, whether before or after the Revised Statutes took effect, from and after
the first day of August, 1859." Held, That the act, or so much of it as applies
to any other subject than that expressed in the title, is unconstitutional, inoper-
ative and void.-Ib....................................................................................
3. In September, 1839, a judgment was rendered, on which an execution soon af-
terwards issued, and was returned, "No property found." A second execution is-
sued in July, 1846, which, in September following, was also returned, "No prop-
erty found." No other step occurred until Oct. 8th, 1861, when a third execution
was sued out, which the defendant moved to quash, relying upon presumption of
payment and limitation. Held, That the facts do not raise a presumption of pay-
ment, and that at the time this proceeding was commenced, there was no statute of
limitation in force applicable to the judgment on which the execution issued.--Ib. 72
4. Where a borrower of money, at a usurious rate of interest, pays the principal
and interest, which, on the same day, is reloaned to him, in accordance with an
agreement to that effect, the statute of limitation against the recovery of the usury
so paid begins to run. But if the period of limitation is not complete when the
lender sues the borrower upon the note given in renewal, the latter may use the
usury so paid as a set-off, although at the time of filing bis answer the period of
limitation had elapsed. The limitation ceased at the commencement of the suit.--
Hayes vs Goodwin
.................. 80
5. To authorize a set-off there must be mutual subsisting demands constituting
causes of action at the commencement of the suit; and limitation ceases against a
eet-off at the commencement of the suit.-16.......................
80
6. The act of March 15, 1862, by which, after thirty days, the limitations of ae-
tions, contained in chap 63 of the Revised Statutes, should extend to and embrace
all cases, whether the right of action accrued before or after the Revised Statutes
took effect, is unconstitutional and void.-Berry, ac. vs. Ransdall.................293
Mandamus is an appropriate remedy whereby the county court may be compell-
ed to show cause why they refuse to approve and qualify a deputy appointed by
the sheriff. (3 B. Mon., 198.) From the judgment of the circuit court, in such
proceedings, an appeal lies to the Court of Appeals.—Applegate vo. Applegate... 236
MECHANIC'S LIEN-
1. Debts, owing to mechanics for the construction or repairing of houses in the
city of Louisville, are favored by the law, and a preference is given to them over
other debts of the owners of the property, to the extent of the value of the property
|