Hammock, &c., vs. Baker, &c. a judgment against him, the creditor might, with great propriety, use all lawful means to make him pay it, and thereby relieve the surety from the burden. If judgment had been rendered against Wright, the principal, and Baker, the surety, at the same time, and the former had replevied the debt, in which the latter had refused to join, he would certainly have been under no obligation to refund to the sureties in the replevin bond what they might have been compelled to pay. (Havens, &c., vs. Foudry, &c., 4 Met., 247, and authorities cited.) And, although Baker may have replevied the debt by a separate bond, still, as the creditor thought it best to make the debt out of the principal and his sureties on the bond executed by them, the principle is not changed, and Baker is not responsible to the sureties in the bond of Wright. He was not jointly bound with them as a co-surety, and they incurred no debt or responsibility for him or on his account. Wherefore, the judgment is affirmed. VOL. III-14 Lee and her Committee vs. Morris. CASE 65-PETITION-FEBRUARY 5. Lee and her Committee vs. Morris. APPEAL FROM FLEMING CIRCUIT COURT. 1. 2. An account for necessaries furnished by a merchant to the family of a married woman, while her husband was a member of the family, imposed no legal obligation on her or her inherited estate. Her general estate was not liable for the goods furnished, unless she and her husband had recognized the account by a writing, signed by both of them. (Revised Statutes, article 2, section 1, chapter 47.) A note executed by the son of an adjudged lunatic, in the assumed character of her agent, is void. W. S. BOTTS, CITED For Appellant, 12 B. Mon., 329; Johnson and wife vs. Jones. Rev. Stat., chap. 47, art. 2, secs. 1 and 3; 2 Stant., 11. Parsons on Contracts, chap. 18, sec. 2. Roper on Husband and wife, 236. 2 Vesey, jr., 138. 2 Kent's Com., chap. 28, p. 115. W. H. CORD, CITED For Appellee, 7 Johnson's Chy. R., 114. Story's Equity, sec. 228. MSS. Opn., Sept. 17, 1845; Stewart vs. Wallace's adm'r. 2 B. Mon., 393; Commonwealth vs. Blanton. Act of Feb. 10th, 1854, Myers' Sup., 271. JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT: The account for necessaries furnished by the appellee, as merchant, to the family of Lucy V. Lee, while her Lee and her Committee vs. Morris. husband was a member of it, imposed no legal obligation on her or her inherited estate; and the note executed therefor by her son, in the assumed character of her agent, when she was an adjudged lunatic, was void. According to the 1st subsection of section 1, article 2, of 2d vol., Revised Statutes, page 8, her general estate was not liable for the goods furnished, unless she and her husband had recognized the account by a writing, signed by both of them. Consequently, as there was no such written recognition, however just the demand might appear to be, the inexorable law exonerates her from the payment of it; and therefore the judgment against her and her committee for the amount of the account cannot be sustained. Wherefore, the judgment is reversed, and the cause remanded, with instructions to dismiss the action. Miller vs. Desha and wife. 3bu 212 e126 472 CASE 66-PETITION-FEBRUARY 5. Miller vs. Desha and wife. APPEAL FROM HARRISON CIRCUIT COURT. 1. 2. A claimant of attached property, who executes bond and retains posses sion of the property, has legal notice that a suit is pending to subject the property; and, if he remains quiescent, as to his claim, until, by judgment, the property is subjected to the attachment, he shall not be heard in a defense to the bond, nor on a suit for the recovery of the property or the money for which it was sold. (Civil Code, secs. 235, 237, 257.) Voluntary gifts, without valuable consideration, are void as to pre-existing creditors. (Revised Statutes, sec. 2, chap. 40; Lowry vs. Fisher, 2 Bush, 70.) A. H. WARD and J. S. BOYD & J. Q. WARD, CITED For Appellant, Act of 1796, sec. 2; Revised Statutes, chap. 40, sec. 2. 2 Met., 207; Todd & Co. vs. Hartley, &c. 9 B. M., 514; Trimble vs. Ratcliffe. 1 Met., 350; Enders vs. Williams. Story's Conflict of Laws, sec. 592, and notes. R. T. DAVIS, CITED For Appellees, Revised Statutes, p. 547; 1 M. & B., 737. 9 B. M., 514; Trimble vs. Ratcliffe. 1 Met., 350-2; Enders vs. Williams. Statute 13, Elizabeth, ch. 5. 1 Conn., 525; Salmon vs. Bennett. Miller vs. Desha and wife. 1 American Leading Cases, 49–53. 10 Ohio, 469; Burget vs. Burget. 2 Ohio, 373; Civil Code, secs. 257, 235, 237. 43 N. H., 118; Pomeroy vs. Bailey. 25 Miss., 146; Young vs. White. 1 Mary. Ch. Dec., 507; Atkinson vs. Phillips. 7 Wendell, 436; Jackson vs. Zimmerman. 1 Bailey, 575; Howard vs. Williams. 2 Sandford's Ch. R., 139. 6 Paige's Ch., R., 62; Van Wyck vs. Sword. 2 Bland, 26; Ripp vs. Hanna. 2 Brock., 132; Hopkirk vs. Randolph. 3 Dana, 414; Sanders vs. Hamilton. 4 Mon., 452; Suttles vs. Whitlock. 1 Greenleaf's Ev., sec. 24. 14 Mon., 475; Penley vs. Hensley. JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT: Miller, having sued out an attachment against the estate of H. F. Cromwell, and having it levied on a negro girl slave, Mrs. Desha executed a bond, as authorized by section 235, Civil Code, to have the property forthcoming to abide the judgment which might be rendered therein. Miller obtained judgment, and the slave was surrendered in satisfaction of the bond, and sold to satisfy the judgment; after which Desha and wife brought this suit, averring that the girl had been given to her by her father, H. F. Cromwell, before the attachment was sued |