Miller vs. Gaither. lee's knowledge of their falsehood, fortified by the fact that Henry had been previously rejected as a substitute, because his form was too slight and his height under five feet two inches; and it was also proved that the appellee knew that the appellant's only motive for buying Henry was to relieve himself from the draft by substitution. The sale by the appellant and purchase by the appellee for that sole purpose implied a warranty of his suitableness to the end thus contemplated by both parties to the contract; and oral testimony of facts conducing to establish such a warranty was not inconsistent with the bill of sale, merely transferring the title, without expressing a warranty. All such implied warranties may be proved by such unwritten testimony. Neither fraud, without rescission by the return or tender of the boy to the vendor, nor warranty, can entitle the vendee to bar the action for the price. But, according to the modern common law, recognized by our Code of Practice, and late adjudications by this court, he is entitled, by plea to the action for the price, to a recoupment of the damage resulting to him from the failure of the consideration. (2 Marshall, 86; 4th Littell, 157; 6 B Mon., 528; 12 lb., 465.) Thus to recoup in the same action saves costs and delays, and prevents vexatious multiplicity and uncertainty; and this is the policy, and thus the principle of the present doctrine as recognized in this court and elsewhere, and which applies as well to this form of action as to an action of assumpsit. Consequently, the evidence entitled the appellant to some credit on the note sued on; and if, as alleged, Henry was worth nothing as a slave, there may have been an entire failure of consideration without returning or otherwise accounting for him. Bryant's adm'r vs. Bryant. It results from the foregoing principles that the circuit court, not recognizing them, misinstructed the jury, and erred in overruling the appellant's motion for a new trial. Wherefore, the judgment is reversed, and the cause remanded for a new trial. CASE 47-PETITION EQUITY-JANUARY 28. Bryant's adm'r vs. Bryant. APPEAL FROM NELSON CIRCUIT COURT. 1. A husband can waive his right as husband and permit his wife to retain her money, and when such intention is manifested by the husband, and he shows, by his conduct, that he is not to have or derive any benefit from the personal property belonging to his wife, and that he intends it to remain for her benefit, courts of equity will not deprive the wife of the property, especially in cases where creditors are not to be deprived of any of their rights. 2. The husband permitted his wife to use and control her money as she pleased. She loaned it out and took notes, payable to herself; and when one of her debtors paid her the amount stated, in the writing sued on, her husband, the intestate, took it as a loan from her, and executed the writing, in which he expressly declares that the money belongs to his wife; that it was hers previous to their marriage, and is to be refunded to her after his death. Held-That the husband's estate was liable to her for the amount so loaned to him. J. D. WICKLiffe, CITED Revised Statutes, 1 Stant., 458. 7 B. Mon., 445; Co. Litt., 300. 1 Roper on Prop., 167; 2 Roper, 163. 4 Met., 84-101. For Appellant, E. E. MCKAY, Bryant's adm'r vs. Bryant. CITED For Appellee, 4 Met., 84; 10 Ohio, 371. CHIEF JUSTICE PETERS DELIVERED THE OPINION OF THE COURT: The proposition cannot be controverted, that, upon the marriage of the intestate with appellee, he thereby became entitled to all the money and personal estate that belonged to his wife, if he chose to assert and enforce his right; but he certainly could waive his right as husband, and permit his wife to retain her money; and wherever such intention is manifested by the husband, and he shows by his conduct that he is not to have or derive any benefit from the personal property belonging to his wife, and that he intends it to remain for her benefit, courts of equity will not deprive the wife of the property, especially in cases where creditors are not to be deprived of any of their rights. In this case, the husband permitted his wife, the appellee, to use and control the money as she pleased. She loaned it out and took the notes, payable to herself; and when one of her debtors paid her the amount stated in the writing sued on, her husband, the intestate, took it as a loan from her, and executed the writing, in which he expressly declares that the money belongs to his wife, the appellee; that it was hers previous to their marriage, and is to be refunded to her after his death. How a husband could more clearly manifest his intention not to claim and appropriate the money of his wife to his own use, and that he intended it should remain as her own property, free from his control, cannot be conceived; and courts of equity would be reluctant to take from the widow property which her husband, during his life, never claimed, but declared to be her own, and give it Day vs. Billingsly. to his representatives and distributees. A contrary doctrine was recognized by this court in Mariman's adm'r vs. Mariman, 4 Met., 84; Latimore vs. Glenn, &c., 1 Bush. As the judgment of the court below conforms to these views, the judgment is affirmed. CASE 48-PETITION ORDINARY JANUARY 28. Day vs. Billingsly. APPEAL FROM TODD CIRCUIT COURT. 1. $705 58. Twelve months after date, we promise to pay Mrs. Agnes C. Reed seven hundred and five dollars and fifty-eight cents. Witness our hands, this 22d February, 1857. JNO. P. BILLINGSLY, Suit was brought by D. O. Day, assignee of the foregoing note, more 2. The assignee, knowing the statute of limitations, forbears to sue at the 3. $600. JNO. P. BILLINGSLY, Z. BILLINGSLY. Day vs. Billingsly. To the suit of D. O. Day, on the foregoing note, the defendant, Z. Billingsly, plead that the plaintiff, D. O. Day, and Jno. P. Billingsly, being partners in merchandise, drew said note for the purpose of borrowing money, and that, as surety only, he signed it merely for their accommodation, and for no other consideration. Held-That there was no binding consideration in this note, as between the plaintiff and this defendant, and that the judgment in favor of the defendant was right. STITES & BULLITT and BRISTOW & WHARTON, CITED For Appellant, 5 B. M., 564; Lewis vs. Harbin & Downing. 2 Met., 249-51; Neil vs. Harding. 1 Duvall, 13, and cases cited; 4 Met., 47. 14 B. Mon., 17; Patton vs. Shanklin. Rev. Stat., ch. 97, sec. 15. 2 Bibb, 91; 5 J. J. M., 87; 2 Bibb, 416; Mar., 203. 12 B. Mon., 235; 17 B. Mon., 307. H. G. PETREE and 5 B. Mon., 563; 5 B. Mon., 574; CITED Hunt vs. Brand's heirs. For Appellee, JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: The judgment appealed from was rendered against the appellant, on each of the following notes, in an action brought by him as assignee of the first and obligee of the last: "$705 58. Twelve months after date, we promise to pay Mrs. Agnes C. Reed seven hundred and five dollars and fifty-eight cents. Witness our hands, this 22d FebJNO. P. BILLINGSLY, ruary, 1857. "Z. BILLINGSLY." "$600. TRENTON, KY., Nov. 24th, 1856. "Four months after date, we, or either of us, promise to pay, to the order of D. O. Day, six hundred dollars, |