Smith v. Cassity
| Decision Date | 20 January 1848 |
| Citation | 48 Ky. 192 |
| Parties | Smith v. Cassity. |
| Court | Kentucky Court of Appeals |
Limitation. Writs of error. Illegality of consideration.
ERROR TO THE BATH CIRCUIT.
Apperson and Chiles for plaintiff.
Hazlerigg for defendant.
THE decree having been rendered on the 25th day of September 1845, and the writ of error sued out on the 25th day of September, 1848, the full period of three years had not expired after the rendition of the decree before the issuing of the writ. The universal rule of computing time from one day to another, is to exclude one day and include the other. Excluding the day on which the decree was rendered, the writ issued on the last day of the third year, and was therefore within the time allowed by the statute. The plea setting up the bar by time, is consequently unavailing.
In computing time under the statute limiting writs of error, the rule is to exclude one day and include the other.
Taking up the case upon the merits, we are of opinion, that even assuming that Smith had on some occasion stated that the note on which the judgment enjoined was obtained, was executed solely in consideration of usurious interest on a previous debt, and that he made this statement to aid the obligor in practicing a fraud on a third person, it would not follow that such admission should have a conclusive effect in favor of the obligor, for the fartherance of whose illegal and fraudulent purpose it was made. Such an admission might be conclusive in a contest between Smith and the person intended to be defrauded, and especially if the interest involved had been acquired in consequence of the admission. But to make it conclusive in favor of the party who was to be thereby enabled to defraud others, and who not only participated in, but probably originated the fraudulent device, and who was certainly neither deceived nor injured by the admission, and on the ground of such estoppel, to relieve the obligor from payment of a debt evidenced by a judgment against him, would be going farther than the principle of law and the policy applicable to illegal transactions either requires or authorizes.
The note if executed upon a legal and sufficient consideration did not become illegal or void by being afterwards used or spoken of for an illegal purpose. Its validity as between the parties, was therefore not affected by a subsequent admission that it was executed for usury, made for an illegal purpose entertained...
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