Watts, &c. vs. Pond, &c.

We are satisfied that Ward's agreement to transfer the note for the separate use of his wife, was binding in equity, and might, upon her application, have been specifically enforced against him. (Livingston vs. Livingston, 2 John. C. R., 537; Garlick vs. Strong, 3 Paige, 440; Marshall vs. Hutchinson, 5 B. Mon, 298; McCann vs. Letcher, 8 B. Mon., 320; Athurly on Marriage Settlements, 161; 2 Kent's Com., 166.

The creditors, by their attachments, acquired only an equitable claim upon the note. Her equity being prior to theirs must prevail.

Whether or not section 11, chapter 24, of the Revised Statutes, applies to an assignment of a chose in action, or a conveyance to a married woman for her separate use, we need not decide; because, even conceding that it does, the statute does not avoid an unrecorded assignment in behalf of creditors, having notice thereof before the acquisition of a legal title to the property. (Forepaugh vs. Appold, 17 B. Mon., 625.)

It appears that some of Ward's debts were contracted before the assignment, and some afterwards. Against the subsequent creditors Mrs. Ward is entitled to the note. Against the prior creditors she is entitled to the value of her potential right of dower, at the time she released it, with interest. The residue, if any, due upon the note, should, if necessary, go to Ward's prior creditors. (Garlick vs. Strong, supra.)

The judgment is reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.

CASE 18-PETITION EQUITY-JUNE 4.

Watts, &c. vs. Pond, &c.

APPEAL FROM MADISON CIRCUIT COURT.

1. 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'

Watts, &c. vs. Pond, &c.

estate, &c., were sworn; otherwise the court has no jurisdiction to order a sale, and the sale, if made, will be void.

2. 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."

SQUIRE TURNER, for appellants, cited Rev. Statutes, (old edition,) page 592; 16 B. Mon., 295; 18 lb., 781; 2 Met., 514.

C. F. BURNAM, for appellees, cited Morehead & Brown's Digest, 808; Civil Code, secs. 96, 97.

JUDGE BULLITT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court, overruling a motion to quash a sale of infants' lands, and the bonds for the purchase money given by the appellants.

The record of the proceeding, in which the sale was ordered, does not show that the commissioners, appointed to report the net value of the infants' estate, &c., were sworn. Their report states that, in their opinion, "it would redound to the benefit of the said infants to have said land sold."

The statute declares that, "before a court shall have jurisdiction to decree a sale of infants' lands, three commissioners must be appointed to report, and must report under oath, to the court, the net value of the infants' real and personal estate, and the annual profits thereof, and whether the interest of the infant or idiot requires the sale to be made." (R. S., chap. 86, art. 3, sec. 2.)

In this case the court had no jurisdiction to order a sale; first, because the report did not state whether the interest of the infants required the sale to be made; (Mattingly vs. Read, decided at the last term ;) secondly, because the commissioners did not report under oath, as required by the statute. The sale was, therefore, void, and the motion should have been sustained.

The judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

DECISIONS

OF

THE COURT OF APPEALS

OF KENTUCKY.

WINTER TERM, 1862.

CASE 1-MOTION-DECEMBER 3.

City of Louisville vs. Commonwealth,

APPEAL FROM THE FRANKLIN CIRCUIT COURT.

1. The liability of the city of Louisville to the commonwealth for the $2,000 per annum required by the act of March 10, 1856, to be paid into the treasury, in consideration of the fines and forfeitures recovered in favor of the commonwealth in the city court of Louisville, is that of a debtor to the commonwealth, not that of a collector or receiver of public moneys; and judgment cannot be obtained therefor without notice of the motion.

2. Section 1, of article 12, chapter 83, of the Revised Statutes, has been superceded by the provisions of the Civil Code, which prescribes the remedies against defaulting collectors and receivers of the public moneys.

3. See the opinion for a reference to the laws relating to the questions supra.

WM. S. BODLEY, for appellant, cited act March 10, 1856, (sess. acts 1855-6, page 114;) Rev. Stat., art. 12, chap. 83, sec. 1; 9 Dana, 70.

A. J. JAMES, Attorney General, for commonwealth, cited act March 10, 1856, (1 sess. acts, 1855-6, page 114 ;) act of Dec. 21, 1861, Gen. Laws, 43; 2 Rev. Stat., 268; 5 Mon., 319.

City of Louisville vs. Commonwealth.

JUDGE BULLITT DELIVERED THE OPINION OF THE COURT:

By an act approved March 10, 1856, it was provided that, "The judge of the city court of Louisville shall receive an annual salary of $2,000, payable out of the treasury of this commonwealth, quarterly. And in consideration of the fines and forfeitures recovered in favor of the commonwealth, in said court, granted to the city of Louisville, it shall be the duty of said city, on the 1st day of December next, and on the 1st day of December in each succeeding year, to pay into the treasury of this commonwealth the like sum of $2,000. (Sess. acts, 1855, vol. 1, page 114.)

In March, 1862, the Attorney General filed in the Franklin circuit court this memorandum of the Auditor of Public Accounts:

CITY OF LOUISville,

"FRANKFORT, Feb., 26, 1862.

In account with the Commonwealth of Kentucky, Dr. To three years salary of city judge, from 1st December, 1858, to 1st December, 1861, per act of General Assembly, approved 10th March, 1856, $6,000."

On the same day, without any summons of, or notice to, or appearance by the city, a judgment by default was rendered against it in favor of the commonwealth for $6,000, with in. terest and 20 per cent. damages, from which it appealed.

The Code provides, that "all debts due to the Commonwealth of Kentucky are recoverable by motion in the Franklin circuit court." (Sec. 485.)

Section 486 declares that," where the debt is due by a sheriff, clerk, or collector of the revenue, or any other receiver of public moneys, for money collected or received, and such officer, collector, or receiver has failed to pay the same, in the manner and at the time prescribed by law, the motion for the recovery of such debt may be made at the regular term of said court succeeding such failure, without any notice to such debtor or his sureties."

Section 487 authorizes similar proceedings against officers, corporations, and officers of corporations, failing to report as required by law, where a fine or penalty is imposed for such failure.

City of Louisville vs. Commonwealth.

Section 488 declares that, " in all other cases notice of such motion shall be served on the debtor, or person in default, ten days before the making thereof."

By an act approved Dec. 21, 1861, sections 486 and 487 were amended so as to authorize the motions, therein mentioned, to be made at the first, or any subsequent term, without notice. (Public acts, regular session, 1861, page 43.)

Sec. 1, art. 12, chap. 83, of the Revised Statutes, need not be considered, having been superceded by the provisions of the Code.

The only question necessary to be considered is, whether section 486 of the Code, as amended by the act of 1861, authorized the rendition of judgmeut, in this case, without notice to the appellant. In our opinion it did not.

Assuming, as is conceded by appellant's counsel in argument, that appellant is liable to the commonwealth for the said sum of $2,000 per annum, by virtue of the act of 1856, we are clearly of the opinion that the liability is not embraced by section 486 of the Code. That section applies only to agents of the commonwealth, collecting or receiving for it moneys to which it is entitled. The act of 1856 makes it the duty of the city to pay money to the commonwealth, not to collect money for the commonwealth. It authorizes the city to collect the fines and forfeitures, recovered in the city court, for itself, not for the commonwealth. The liability of collectors and receivers of public moneys depends upon the sums which have or might have been collected; that of the city is fixed at a certain sum, without reference to the amount of the fines and forfeitures which may be collected. Under the act of 1856, said fines and forfeitures are not "public moneys," do not belong to the commonwealth, and are not collected for it, but belong to appellant, and appellant is not bound to pay the same, nor to account therefor to the commonwealth. The liability of the city is that of a debtor to the commonwealth, not that of a collector or receiver of public moneys; and notice of the motion should have been given.

The judgment is reversed, and the cause remanded for further proceedings, not inconsistent herewith.