Fox v. Miller

46 Ky. 125 | Ky. Ct. App. | 1846

Chief Justice Ewing

delivered Hie opinion of the Court —

Judge Beech did not sit in this case.

This is a motion in the name of Miller, the commandant of the regiment, against Fox, the former paymaster, founded on a settlement made with him by the field officers of the regiment.

A fraud or a pal-made by She field regiment"oiTa settlement with a regimen talpaymaster, may be enquired into on the trial of amopaymaster'81 for his supposed deImquency ana evidence conduofmistaíe sinid ceivedbeen re*

Harlan fy Craddock for plaintiff; Capertonand Goodloe for defendant.

If fraud or palpable mistake has been committed in the settlement, there can be no doubt that it might be overhauled in a Court of Chancery, and we can perceive no good reason why the fraud or mistake might not be inquired into and coriected in the trial of the motion, There is-nothing in the statute which makes the settle-p , , , ment so conclusive that it cannot be impeached. It is not • , ,. . , . . ,. * , a judicial proceeding, nor raised to the dignity or such Proceeding. Juiisdiction being given to the County Court to hear the motion, it would seem proper that they . 11 should hear the defence. And if it should turn out, upon satisfactory proof, that the settlement and acknowledgInenl Fox, that so much money was in his hands as paymaster, when no such sum was in fact in his hands, under an entire misapprehension as to his liability for fines which were not in his hands, but in the hands of a Constable for collection, and which never came to his hands, his acknowledgment was without consideration, and founded upon a mistake of law which exempts him from liability. The proof offered tended to the establishment of this state of case, and was improperly rejected by the County Court.

The judgment is therefore reversed, and cause remanded, that a new trial may be granted, without-the payment of costs.