question was involved as in this case. We are of the opinion that the party is presumed to know the penal and criminal laws of the State. Although the information which Morris may have obtained from Sutton would not justify him in wrongdoing, but as he has been adjudged guilty as a wrongdoer it seems to us that he has no cause of action against Sutton for the losses which he sustained by reason of his prosecution and conviction. The indictment under which Morris was convicted charged that he did "unlawfully, willfully and feloniously cut or saw down and carried a way a lot of timber" growing upon the lands of Gaddie.
We think his conviction precludes him alleging and showing that it was by the authority of Sutton that he committed the offense charged in the indictment. The policy of the law is to refuse redress by way of contribution to wrongdoers, and it seems to us to allow the appellee to maintain his counterclaim for contribution on account of the fine, the cost of the prosecution and cost of his defense which he was compelled to pay would be violative of the rule which denies redress to wrongdoers. In so far as the instruction permitted the jury to allow Morris the damage resulting from the fine assessed against him, the cost recovered against him in the prosecution, and the expenses which he had paid in the defense of it, they were erroneous.
The court erred in discharging the attachment on the face of the papers, as it appears the necessary allegations were made to entitle the plaintiff to an order of attachment. The judgment is reversed.
1. Gifts-Books of Accounts.-While a mere account, or even a
book of accounts, may not be per se evidence of indebtedness by
the person against whom they are drawn, there may exist
a property right, of an equitable character, enforcible against
the debtor upon proof of their correctness, and such property
right is subject to transfer, either in writing or by parol, and
either as a gift or on contract. Jones' Admr. v. Moore......591
ACCIDENT INSURANCE—
1. Weekly Indemnity-When Suit May Be Brought.-Under an ac-
cident policy in which the insured is indemnified against loss
of time "in a sum not exceeding $25 per week, or the money
value of his time for such period of continuous total disability
as shall immediately follow the accident and injuries afore-
said, not exceeding, however, fifty-two consecutive weeks from
the time of the happening," the insured is entitled to weekly
payments after satisfactory proof of the injury, and is not
required to wait until his disability ceased, or until the end
of a year to bring his action for loss of time. Ky. Life & Acc.
Ins. Co. v. Franklin
.511
2. Care Required of Insured-Practice in Civil Cases.-Under the
stipulation in such a policy, that the insured shall use due dili-
gence for his personal safety and protection, he is required to
use only that degree of diligence or care, that prudent persons
are accustomed habitually to use, and it is a question for the
jury to say whether he was exercising such care. Idem......511
3. Occupation of Insured.-The fact that one was insured as a
"grocer, with desk and counter duties," was injured while hunt-
ing, does not deprive him of the right to indemnity under the
policy, unless he was following the occupation of a hunter; the
language of the condition upon which the indemnity was to be
reduced in the event he was injured while following another oc-
cupation, has reference to acts or things done in following an
occupation, or business, and not to individual acts. Idem....511
(615)
ADMINISTRATORS-
See Executors and Administrators.
As to, against infant.cestui que trust. See Trusts and Trus-
tees, 3.
As to necessary statements in, of witness to claim against a
decedent's estate. See Decedent's Estates.
ALTERNATIVE PLEA-
See Pleading, 2.
As to unqualified right of defendant to file if tendered in time.
See Practice in Civil Cases, 10.
As to appeals from county to circuit courts in bastardy pro-
ceedings. See Bastardy, 1.
As to what is necessary in order to prosecute appeal in a
proceeding by surety against his co-surety for contribution.
See Practice in Civil Cases, 3.
1. Change of Venue.-Under the provisions of the act of April 9,
1800, that "the action of the court in refusing or granting such
change of venue shall be final and without appeal," that ques-
tion can not be reviewed by the Court of Appeals, even upon an
appeal from the final judgment. O. & N. Ry. Co. v. Barclay's
Admr.
16
2. Same.-The action of the trial court being at the time a motion
for change of venue was acted upon not reviewable on appeal,
it still can not be reviewed, although between that time and the
time a motion for a new trial was acted upon there was a change
in the law. Idem.
....16
3. Appeals from Inferior Courts-Issual of Process.-Upon an appeal
to the circuit court from a judgment of the quarterly court,
where the process appears in the record to have been directed
to a certain county, a mere memorandum of the clerk to the
effect that it was originally directed to another county and
was changed by his direction, can not be considered a part of
.518:
the record. Brown v. Bennett
Appeals-Assignments for Creditors.
4. Appeals from Inferior Courts-What is Necessary to Perfect.-
All that is necessary for a party who is appealing from the
judgment of an inferior court to do is to file a copy of the
judgment, and statement of costs, and cause a supersedeas bond
to be executed; while it is true that in order to stay further
proceedings on the judgment, and have a trial of the appeal,
certain processes must issue, the law makes it the duty of the
clerk to issue them, and it is not the appellant's duty, as a con-
dition precedent to his appeal, or as a necessary part thereof,
to cause them to issue. Idem.....
.518
5. Jurisdiction.-In an action for damages for trespass in cutting
timber, where a defendant although denying the plaintiff's title
to the land, does not claim title in himself, the title to the
real estate is not so involved as to give this court jurisdiction
of an appeal where the judgment was for less than the amount
fixed by the statute as giving this court jurisdiction.
v. Lard
APPEALS FROM INFERIOR COURTS-
As to right of parties to argument before jury. See Practice
in Civil Cases, 2.
1. Pleading-Evidence.-In an action to recover damages for assault
and battery the defendant can not prove the plaintiff first as-
saulted him in the absence of a plea of son assault demense.
Wilken v. Exterkamp
.143
2. Pleading Instructions.—It was error where there was no plea
of justification, to instruct a jury to find for defendant, if the
assault was made in self-defense. Idem......
143
As to duty of, of assigned estates. See Assignments for
Creditors.
ASSIGNMENTS FOR CREDITORS-
1. Previous Preferences-Duty of Assignee-Statutory Construction.
-Under our statutes (sections 84, 1910 and 1911), the assignee
Assignments for Creditors-Attachments.
ASSIGNMENTS FOR CREDITORS Continued.
of a debtor has the same right, and the same duties imposed
upon him, to institute proceedings necessary to recover any
property that the debtor had previously by a preferential or
fraudulent transfer conveyed, that are given to and imposed
upon a creditor; and the deed of assignment is not to be
treated as void for the sole reason that the debtor had previ-
ously made a preferential or fraudulent transfer to one or more
of his creditors, and in order to enable a creditor to maintain
such an action he must allege that the assignee had upon de-
mand refused to institute the same. Hall's Assignees v. Roth-
child & Son,
.582
2. The preferred creditors having surrendered to the assignee the
possession and control of the mortgaged property, and the as-
signee being in possession thereof is proceeding to sell and
dispose of the same for the benefit of all the creditors, there was
no necessity for bringing suit to recover the property, and these
facts being relied upon by the assignee constituted a good de-
fense to an action by a creditor.
As to priority of attachment lien over unrecorded mortgage.
See Liens, 1.
1. Affidavit for Attachment-Practice in Civil Cases.-Under the
provisions of the Civil Code, sections 117 and 550 an affidavit
for an attachment on behalf of a corporation when made by an
attorney for the corporation, must not only show that he is such
attorney or agent, but that the officer or agent of the company
who would be required to verify it, if in the county, was at
the time absent therefrom. Northern Lake Ice Co. v. Orr,
&c.
.586
Affidavit for-Intervening Liens-Practice in Civil
Cases. Under the provisions of section 268, subsection 2, of
the Civil Code, providing for the amendment of a defective affi-
davit for attachment, and further providing that it shall not
when amended, affect a bona fide right to or lien upon the prop-
erty attached previously acquired, the amendment of an affi-
davit for attachment made by an attorney so as to show his
right to make the affidavit, will not affect title acquired after
the attachment was issued, but before the amendment perfect-
ing it. Idem.
..586
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