Avery v. Carter

Court of Appeals of Kentucky

Avery v. Carter

7 Ky. Op. 200, 1873 Ky. LEXIS 508

DecidedOctober 16, 1873

StatusPublished

This text of 7 Ky. Op. 200 (Avery v. Carter) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avery v. Carter, 7 Ky. Op. 200, 1873 Ky. LEXIS 508 (Ky. Ct. App. 1873).

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Opinion

Opinion by

Judge Lindsay:

The bounty and back pay due to soldiers dying while in the service of the Federal Government during the late Civil war, was by the [201]*201acts of Congress made payable to their widows and children, and not to their personal representatives. This court has heretofore held, and is still of the opinion, that such bounty and back pay in the hands of the widows of the deceased soldiers cannot be subjected to the payment of his debts.

Winfrey, Carr, for appellant. Butler, Brent, for appellee.

Neither the debtor if living nor his creditors could reach such funds by a suit against the United States, and the Government has the right to determine in event of the debtor’s death to whom the fund remaining to his credit shall be paid. Outside of the prerogative of government this right is reserved in the contract of enlistment, and it must be respected, by the courts of the country, otherwise one of the means deemed necessary to encourage enlistments in time of war will be taken from- the law-making power by the judiciary. Our attention has not been called to any law authorizing the widow to collect and keep' the value of the horse alleged to have been paid for by the government, but appellant’s petition does not state the amount received for said horse and appellee does not disclose it in answer to interrogatives.

It was error for the court without either allegation or proof to assume that the amount was equal that of the debt sued for.

The judgment must therefore be reversed and the cause remanded.

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Opinion by

Judge Lindsay:

The bounty and back pay due to soldiers dying while in the service of the Federal Government during the late Civil war, was by the [201]*201acts of Congress made payable to their widows and children, and not to their personal representatives. This court has heretofore held, and is still of the opinion, that such bounty and back pay in the hands of the widows of the deceased soldiers cannot be subjected to the payment of his debts.

Winfrey, Carr, for appellant. Butler, Brent, for appellee.

Neither the debtor if living nor his creditors could reach such funds by a suit against the United States, and the Government has the right to determine in event of the debtor’s death to whom the fund remaining to his credit shall be paid. Outside of the prerogative of government this right is reserved in the contract of enlistment, and it must be respected, by the courts of the country, otherwise one of the means deemed necessary to encourage enlistments in time of war will be taken from- the law-making power by the judiciary. Our attention has not been called to any law authorizing the widow to collect and keep' the value of the horse alleged to have been paid for by the government, but appellant’s petition does not state the amount received for said horse and appellee does not disclose it in answer to interrogatives.

It was error for the court without either allegation or proof to assume that the amount was equal that of the debt sued for.

The judgment must therefore be reversed and the cause remanded.

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Bluebook (online)

7 Ky. Op. 200, 1873 Ky. LEXIS 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-v-carter-kyctapp-1873.