Connolly, &c., vs. Branstler.

CASE 62-PETITION EQUITY-SEPTEMBER 22.

Connolly, &c., vs. Branstler.

APPEAL FROM LIVINGSTON CIRCUIT COURT.

A wife is estopped from asserting dower in real estate of her husband by announcing publicly to the crowd and bidders, at the time the real estate was being sold by a commissioner, under a decree of court, "that she would not claim dower against any person who should become the purchaser." The disability of coverture could not exonerate ber from fraud.

CITED

For Appellant,

1 Marshall, 331; 4 Metcalfe, 147.

Chitly on Contracts, p. 7, scc. 8, and scc. 151.
Revised Statutes, 1 Stanton, 208.

1 Met., 513; 6 Dana, 301.

C. BENNETT,

CITED

14 B. Mon., 644; Wright vs. Arnold.

For Appellee,

JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT:

At a decretal sale of a house and lot in Smithland, Kentucky, for the benefit of the creditors of William Gordon, the first husband of the appellant, Mary Ann Connolly, she, for the purpose of facilitating an advantageous sale, authorized the salesman to announce, as he did, to the attending crowd, that she would not claim dower against any person who should become the purchaser. After that announcement, and on the faith of it, the property was well sold, and finally conveyed to the appellee. Some years afterwards, her second hus

Babbitt vs. Woolley, &c.

band and herself brought this suit in equity for obtaining dower; and now complain of the dismission of their petition.

The judgment was right.

Although her declaration to the bidders did not legally alienate her dower, yet the sale being made on the faith of it, she is equitably estopped from asserting dower against the purchaser; for the disability of coverture could not exonerate her from fraud.

2.

Wherefore, the judgment is affirmed.

LAW & HOOL

LICRACY

CASE 63-PETITION EQUITY-SEPTEMBER 22.

Babbitt vs. Woolley, &c.

APPEAL FROM LOUISVILLE CHANCERY COURT.

1.. In the absence of both allegation and proof of an ordinance authorizing the digging of the well at the cost of property-holders, and what property-holders, the judgment dismissing the petition was proper. The affidavit of the plaintiff's attorney that he did not know of the existence of the general ordinance authorizing the digging of the well at the cost of property-holders within specified distances, until after the hearing and dismission of the suit, was insufficient to authorize a rehearing. It was the duty of the plaintiff and his attorney to know that there was such an ordinance before bringing the suit.

OLIVER H. STRATTON,

CITED

For Appellant,

Sec. 4, art. 7, of the Charter of Louisville of 1851.

BARRET & ROBERTS and

R. W. WOOLLEY,

For Appellees.

Babbitt vs. Woolley, &c.

JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT:

Without proof of an ordinance authorizing the digging of the well at the cost of property-holders, and what property-holders, the appellant could not maintain his action against the appellees for contribution. The ordinance filed did not do so, and a general ordinance that did was not exhibited. Consequently, in the absence of both allegation and proof of any such ordinance, the judgment dismissing the petition was proper and inevitable.

It was the duty of the appellant and his attorney to know that there was such an ordinance before the institution of the suit, which could not be maintained without it; and the affidavit of the attorney that he did not know of the existence of any such ordinance until after the hearing and dismission, was altogether insufficient to authorize a rehearing. Consequently, although the general ordinance sufficiently specified the distances as required by the charter, and gave reasonable notice to the owners who should contribute, yet, as the first judgment should stand, the last, to the same effect, should not be reversed; wherefore, the judgment appealed from is affirmed.

INDEX.

ACTION-

1. When it appeared that the failure to make a debt was not the sheriff's

fault, and certainly did not result from his failure to return the exe-
cution within thirty days after the return day thereof, the plaintiff
in the execution had no legal right to recover against him any por-
tion of his uncollected debt under section 4, article 18, chapter 56,
Revised Statutes. The amendatory act of August 28, 1862 (Myers'
Sup., 213), did not apply in this case, because it was enacted while
this suit was pending. The plaintiff in the execution, consequently,
was legally entitled to recover thirty per cent. on the uncollected
balance of his execution for the failure to return within the thirty
days.-Hill, &c., vs. Turner ---

-- 27
2. "That, in 1862, before the assignment of the notes, the obligee, as a
private citizen, on his own responsibility, and without any order or
authority whatever, went to the intestate's residence, and, by force,
took from him, and converted to his own use, horses, mules, and hogs,
of a value greatly exceeding the amount claimed in the action," is a
good plea of set-off, as the administratrix had a right to waive the
trespass and right of action, ex delicto, and to maintain an action, ex
contractu, for the value of the property converted on an implied
promise to pay the value of the property.-Eversole vs. Moore 49
3. Indebitatus assumpsit might be maintained for the value of property tor-
tiously taken and converted, and that which might be recovered in
such an action may be plead as a set off.-Ib. -----

49

4. Although the enlistment as a substitute exonerated the drafted man
from liability to serve under the draft, yet the latter had a right
to stipulate for faithful service; and as the substitute so stipulated,
and deserted after being mustered into the service, he was not
entitled to recover an unpaid balance of the amount which was
promised him, for his becoming a substitute.-Napier vs. Green. 52
5. After the rendition of a judgment for the foreclosure of a lien upon
land, and the appointment of a commissioner to sell the land, the
defendant, owner of the land, before the commissioner's sale thereof,
VOL. III-45

Action.

ACTION-Continued.

6.

7.

8.

9.

10.

11.

12.

filed his petition alleging several grounds for a new trial, but did not
obtain an injunction against the execution of the judgment, as pro-
vided for by section 584, Civil Code. Held-That, as the judgment
was not enjoined, neither the plaintiff nor commissioner perpetrated
any illegal act by proceeding to sell the land, and hence would not be
responsible for any sacrifice of the land by reason of a proper and
legal sale, as directed in the judgment.—Brown vs. Hudson

60

As neither the plaintiff nor commissioner proceeded illegally to execute
the judgment for the sale of the land, the defendant's only remedy
was by proceedings to vacate the judgment and sale. The defendant
having confirmed the judgment and sale by a compromise with the
purchaser of the land, is without further remedy, and is not entitled
to recover against the commissioner or plaintiff —And especially was
he not entitled to any damages, when, by his own acts, he contributed
largely, if not entirely, to the sacrifice of his land.-Ib.. -------- 60

A bond which contains no covenant to pay the claimant of any prop-
erty seized and sold under a distress warrant, the damages sustained
by such claimant, in consequence of such seizure and sale, as pre-
scribed in section 709, Civil Code, presents no bar to an action
against a constable for the wrongful seizure of property, &c.—Jewell
vs. Mills, &c.

-------

62

A constable and his surety are liable, on his official bond, for the
tortious acts of the constable under color of his office, as for non-
feasance and unintentional misfeasance in office.-Ib.
62

A surety of a constable is not liable, on his official bond, for the con-
stable's acts of violence, which are personal wrongs. (Murrell vs.
Smith, 3 Dana, 463; Calvert vs. Stone, 10 B. Mon., 152.)—Ib. ---- 62
A constable has no right to force open an outer door or window which
is closed and fastened, although he may not break a lock or catch,
to make a levy of a fieri facias, or distress warrant.—Ib. -------- 62
In case of abandonment of his family by the husband who is a father,
the wife's right. she being a mother, to prosecute an action, using his
name, does not depend on his consent, but it is a legal right secured
to her in such cases, free from and beyond the control of the husband.
(Sec. 51, Civil Code.)-Stith vs. Patterson, &c.

132

The railroad company is not responsible for the value of a mule, which
passed through a gap in the fence near the railway, jumped on the
track, only about fifty yards ahead of the locomotive, and was killed