text:
    Wm. C. Greenup and Clement C. Conway, Plaintiffs in Error, v. A. B. Brown, Defendant in Error.
    ERROR TO RANDOLPH.
    Where a- fall and ample defense might be made at law, a court of chancery will not relieve.

    The time of the devastavit of an administrator is properly ascertained from the return of nulla bona to the execution issued against them in their representative character.
    If an execution has issued irregularly and informally, the most speedy and easiest mode to obtain relief is to apply to a judge to stop all proceedings on it, until an application can be made to the circuit court to arrest or vacate the proceedings of the sheriff.

       See note to the case of More et al. v. Bagley et al., ante, p. 94.

       “A party out of term, intending to move to set aside or quash any execution, replevin bond, or other proceedings, may apply, to the judge at his chambers for a certificate, (and which the said judge may in his discretion grant,) certifying that there is probable cause for staying further proceedings until the order of the court on the motion; and a service of a copy of the certificate at the time of or after the service of the notice of the motion, shall thenceforth stay all further proceedings accordingly.” Purple’s Statutes, p. 827, sec. 46. Scates’ Comp., 263.

   Opinion of the Court by

Justice Smith.

The plaintiffs in error ask the reversal of a decree, dismissing a bill seeking relief in equity, against a judgment entered in the circuit court of Randolph, against them in their personal capacity, upon a devastavit suggested and proven, which judgment has been affirmed in this court. We are at a loss to perceive on what possible ground the plaintiffs could expect such relief. It is not pretended that the judgment has not been fairly and regularly obtained, and after a due course of legal investigation ; no fraud or mistake is alleged, nor does it appear but what the party seeking the relief has actually availed himself of every possible ground of defense in the trial at law. The matters now asked to be re-examined in a bill in equity, have already been amply considered and determined in this court, upon reviewing the decision of the circuit court upon a writ of error. Nothing is disclosed in the bill but what would be matter of defense at law, and for aught that appears, has actually been used as grounds of defense. We can perceive no ground upon which the bill could have been entertained and the injunction granted in the circuit court, but upon the question whether the real estate of the defendants, which was taken in execution, was liable to be sold for less than two-thirds of its appraised value.

This must depend upon the fact when, in the language of the act of 1825, authorizing the sale of real estate on execution, the contract was made, cause of action accrued, or liability was incurred.”

To ascertain that, we are to determine the period of the commencement of such liability. This must depend on the evidence of a devastavit, and the proof to establish that is the return of nulla bona on the execution issued on the judgment against the administrators in their representative capacity. This return is alleged, in the bill, to be of a date long subsequent to the passage of the act of 1825, subjecting real estate to execution. The provisions of the act exempting real estate taken on execution from being sold for a less sum than two-thirds of its appraised value, referring entirely to contracts created, cause of action accrued, or liabilities incurred anterior to its passage, necessarily determines the point, that the present is not a case within the exemption created by the law. If the facts disclosed in the bill had shown a case within the provisions of the act, the sale might have been restrained, but the more regular course would have been to have applied to a judge for an order to stay all proceedings under the execution, until an application could be made to the circuit court, in term time, to arrest or vacate the proceedings of the sheriff. This would have been equally as effectual, and less oppressive, and would have been recommended for its simplicity and ease. We are satisfied that the order of the circuit court in dissolving the injunction and dismissing the bill for want of equity, was correct, and that the same ought to be affirmed, with costs,

McRoberts, for plaintiffs in error.

Baker, for defendant in error.

Decree affirmed.

       Laws of 1825, p. 154.

         Vide Hubbard v. Hobson, ante, p. 190. Crow’s executors v. Prevo, ante, p. 216.


source: Caselaw Access Project

author: Justice Smith.

license: Public Domain

text:
    Greenup and Conway, Plaintiffs in Error, v. Philander Woodworth, Defendant in Error.
    ERROR TO RANDOLPH.
    Where a full and ample defense might be made at law, equity will not relieve.
   Opinion of the Court by

Justice Smith.

This case is similar to the preceding, excepting, that in the facts disclosed, it appears that the judgment against the defendants in the action at law, in their representative capacity, was by confession, and in the action against them in their personal character, by default for want of a plea. The recovery here, as in the other case, has been in the due course of legal proceedings ; no fraud or mistake alleged, nor want of means of making a defense at law, and investigating the grounds now urged as cause of relief in equity.

We can perceive no color for even the interference of the equitable powers of a court, much less the annulling of a judgment duly obtained in the course of legal proceedings.

If the administrators had grounds of defense, they were of a legal character and should have been interposed during the progress of the actions against them. It however appears they have admitted their liability, by their own confession, and suffered judgment to be entered thereon.

This surely puts an end to their asking relief now. The same ground, as to the sale of real estate taken upon execution, is also presented. As the facts disclosed are of the same character in point of time, and the nature of the liability, upon the return of nulla bona in the action suggesting a devastavit. The opinion that there can be no exemption from sale for a sum not less than two-thirds of the appraised value of the land, is applicable to this case also, and must prevail.

McRoberts, for plaintiffs in error.

Baker, for defendant in error.

The decree of the circuit court is therefore affirmed with costs. ,

Decree affirmed.

       Vide same plaintiffs v. Brown, and cases there referred to, ante, p. 252.

       See note to More et al. v. Bagley et al., ante, p, 94.


text:
    Barret and Wife, Plaintiffs in Error, v. Stephen Gaston, Ex’r, Defendant in Error.
    ERROR TO RANDOLPH.
    This court will not entertain a writ of error on a judgment founded on a tort, after the death .of the tort feasor.

   Opinion of the Court by

Justice Smith.

In this case it is manifest, the proceedings on the writ of error can not be sustained.

The cause of action is for a tort, and could not survive against the executor of James Gaston, who has been made defendant in error.

Suppose this court were to reverse the judgment of the circuit court, what object could be gained by such reversal ? The executor has only to plead the fact of the death of his testator, and the circuit court, on the proof of the truth of such plea, would be bound to give judgment for the defendant. Is not then this court bound, when the plaintiffs in error themselves, by their own proceedings, disclose the same facts, to pronounce a decision similar in its effects ? The record shows the cause of action, the writ of error suggests the death of James Gaston, and that Stephen is his executor, and that, consequently, as against James Gaston, in whose favor the judgment of the court below was, the cause of action is gone, and can not survive against his executor. If the executor retains the possession of the plaintiff’s wife, under a claim, in right of his testator, as an indentured servant or slave, that might present a question of legal investigation in a new action against him, but it can form no ground of examination in this. We are therefore of opinion that the writ of error must abate, and that judgment be entered accordingly.

Cowles, for plaintiffs in error.

Breese, for defendant in error.

Writ of error abated.


text:
    Henry Curtis, Appellant, v. The People, Appellee.
    APPEAL PROM CLINTON.
    All objection to the form, of an indictment, must be made before trial, and an omission to state in an indictment that it was found upon the “ oaths” of the grand jury, is matter of form only, and can not be assigned for error.

    In an indictment for an assault and battery with intent to kill, it is indispensable that the intent should be alleged to be unlawful and felonious.

    Where there are two or more counts in an indictment, one of which is good and the rest bad, and a general verdict of guilty, the judgment shall stand.

    At the April term, 1828, of the Clinton circuit c our t,the grand jury of Clinton county preferred the following bill of indictment against the appellant, viz.:
    Of the April term of the Clinton circuit court in the year of our Lord one thousand eight hundred and twenty-eight.

      State of Illinois, Clinton county, ss.

    The grand jurors chosen, selected and sworn, within and for the .county of Clinton, in the name and by the authority of the people of the state of Illinois upon their present, that at the county aforesaid, on the tenth day óf December, in the year of our Lord one thousand eight hundred and twenty-seven, with force and arms, to wit: with a rifle gun then and there held in his hands, and loaded with powder and one leaden ball, Henry Curtis, on the day and year aforesaid, at the county aforesaid, with intent to till one James Tilton, and him did with the said loaded gun assault and discharge against and upon, giving then and there to the said Tilton one dangerous wound in his said leg, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people of the state of Illinois.
    And the jurors aforesaid do further present, that on the day and year aforesaid, at the county aforesaid, Henry Curtis did then and there with force and arms make an assault upon the body of James Tilton, the said Tilton then and there being in the peace of God and the said people, and him then and there, the said Curtis, did beat, bruise and ill treat, contrary to 'the statute in such case provided, and against the peace and dignity of the same people of the state of Illinois.
    Upon this indictment, at the September term, Curtis was tried and found guilty. A motion was then made in arrest of judgment, which the court overruled, and sentenced him to pay a fine of 50 dollars and to imprisonment for the term of twenty days. From this judgment Curtis appealed, and assigned as causes for the reversal of the judgment: 1. That it does not appear by the indictment that it was presented upon the oaths of the grand jury.
    2. The indictment does not pursue the language of the act of assembly, but is totally variant therefrom.
    3. The indictment does not charge the defendant with shooting with intent to commit murder, the offense designated in the act, but with intent to kill.

    4. The indictment contains two counts and for separate offenses, and the first one being bad, a general verdict of guilty can not be supported.

       Mere formal objections must be made before pleading. Guykowski v. The People, 1 Scam., 476. Stone v. The People, 2 Scam., 333. Townsend v. The People, 3 Scam., 329. Conolly v. The People, id., 477.

       An indictment for an assault with intent to murder, should not only charge the intent to have been malicious and unlawful, but the felonious intent, and the extent of the crime intended to be perpetrated should be distinctly set forth. Curtis v. The People, 1 Scam., 285.
      In an indictment for an assault with intent to murder, it did not charge the offense to have been unlawfully done. The court held the indictment good. Perry et al. v. The People, 14 Ill., 496.

       The same is held in Townsend v. The People, 3 Scam., 329. Holliday v. The People, 4 Gilm., 113.

   Opinion of the Court by

Justice Smith.

The grounds of error assigned and relied on, for a reversal of the judgment in this case, which it becomes important to notice, are,

1. That it does not appear that the presentment of the grand jury in the bill of indictment, was on the oaths of the grand jurors.

. 2. That in the indictment, the offense charged, is not in the language of the statute, although founded on the statute, but is wholly variant therefrom.

3. That in the first count, the offender is not charged with shooting with intent to commit murder, but with intent to kill.

4. That there are two counts in the indictment for separate offenses, and the first being bad, a general finding of guilty is bad, and that, therefore, judgment ought not to have been rendered on the verdict.

These objections will be considered in the order they are stated. The omission of the word “ oaths” in the indictment, although evidently a slip of the pen, would, we have no doubt, been fatal, according to the decisions at common law.

But the forms of proceedings in criminal cases having been prescribed by our criminal code, and the time prescribed when objections to want of form are to be made, it becomes necessary to inquire, whether the prisoner has not waived this objection by his plea of not guilty, and whether it is not, therefore, too late now, to urge this objection as a sufficient cause for the reversal of the judgment. In the act constituting the code of criminal jurisprudence of this state, under the 15th division, relative to the construction of the act itself, and the duty of courts, it is provided by the 150th and 151st sections, that the form of the commencement of an indictment shall be in substance the same as that used in the present case, including the word “ oaths,” which is omitted, and that “ every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this code, or so plainly, that the nature of the offense charged may be easily understood by the jury; that all exceptions which go merely to the forpi of an indictment, shall be made before trial, and that no motion in arrest of judgment, or writ of error, shall be sustained for any matter not affecting the real merits of the offense charged in such indictment.” The manner, then, in which the legislature intended the word “ oaths” to be used, seems to be, necessarily, as a term of form, and not substance, and must be so considered ; and it is equally clear, that under this view the prisoner is prohibited, by the latter clause above recited, from now urging it as ground of error. It can not, in the language of that clause, in any way affect the real merits of the offense charged in the indictment. As it regards the second objection, it is to be remarked, that there is, in no part of the criminal code, a definition of an assault with an intent to kill or murder, but barely a specification of the punishment for the offense of an assault with an intent to murder. The statute then can not be said to have required any language whatever to be used in describing the offense, but has left it as it was at common law.

The conclusion in the first count is a common law, as well as a statute conclusion, and if the offense be well recited as at common law, it will be sufficient to sustain the first count. In an examination of this count, however, there exists a striking and manifest departure from the common law precedents, in not averring that the intent was unlawful and felonious.

The most approved precedents aver, not only that the assault was committed willfully and maliciously, but with the intent feloniously to kill and murder.

Hence, it seems to be not only necessary and indispensable that the intent should be charged to be in itself malicious and unlawful, but that the felonious design and extent of the crime intended to be perpetrated, should be distinctly and clearly set forth, otherwise the inference would be that the assault might be excusable or justifiable in self defense. Nothing could be more certain and comprehensive than an allegation that the assault was made with an intent to murder. This would, from its technical sense, entirely cover the offense intended to.be charged. As the offense charged in the indictment is simply an assault with an intent to kill, and as there is no allegation that it was done with a felonious, unlawful or malicious design, it is certainly fatally defective, whether the omission of the term “ murder,” be important or not. As the objections contained in the third assignment are substantially the same as those in the second, and are embraced in the reasoning in relation to those, it is unnecessary to examine them.

The remaining one to be considered is, whether a general verdict of guilty, rendered on an indictment where one of the counts is materially defective, be good.

It was urged on the argument, that the two counts were for different offenses, one being for a simple assault, and the other for an assault with an intent to kill, and that, therefore, a general verdict could not stand, and more particularly so, as the court could not know to which the jury applied the evidence.

The objection is not tenable. It is unimportant as to which the jury applied the evidence, because a general finding of guilty as to the whole, necessarily includes the guilt as to a part. In finding the prisoner guilty of the greater offense, the one of inferior grade is surely included. If the assault was committed with the intent alleged, though that intent may not have been sufficiently set forth to sustain the first count of the indictment, he is still guilty of- an assault from the verdict, because the jury, having found the truth of the whole charge, the less is included in the greater. It would, however, be sufficient in meeting this objection to say, that the universal practice is, when the crime is of a complicated nature, or it is uncertain whether the evidence will support the higher or more criminal part of the charge, or as it maybe precisely laid, to insert two or more counts in the indictment. Thus, in an indictment for burglary, it is usual to insert one count for a burglarious entry with an intent to steal the goods of A, and stealing them, and another count to steal the goods of another person, or with an intent to kill and murder A, and no doubt has ever been entertained that it is both advantageous and legal; nor is it any objection upon demurrer, or in arrest of judgment, that separate offenses of the same nature are joined against the same defendant. It is also well settled, that the defectiveness of one or more of the counts, will not affect the validity of the remainder, because judgment may be rendered on those which are valid, and the court can regulate the severity of the sentence according to their discretion, on the counts of the indictment which are supported. 1 Chitty’s Criminal Law, 204 and 205. It has been repeatedly determined in the supreme court of New York, that if one count in an indictment be good, although all the others are defective, it will be sufficient to support a general verdict of guilty. The People v. Olcott, 2 Johnson’s Cases, 311. The People v. Curling, 1 Johnson’s Reports, 320. In the present case, the finding of the jury, of the guilt of the prisoner in making the assault with intent to kill, establishes an assault, whether it be accompanied with such intent or not; and although it is true, that the finding as to the first count is inoperative, yet it can not affect the finding as to the second. We are therefore of opinion that the general verdict of guilty is supported, although the first count is defective; but as the imprisonment was doubtless made a part of the sentence of the court in reference to that count, and the evidence adduced under it, justice would seem to require that so much- of the judgment of the circuit court as subjects the prisoner to imprisonment be reversed, and the residue, as to the imposition of the fine and costs, be affirmed,

McRoberts, for appellant.

Cowles, state’s attorney, for appellee.

Judgment affirmed.

       Rev. Laws of 1827, p. 157.

         Vide Archbold’s Crirn. Pl., 245-7.


text:
    Joseph M. Street, Plaintiff in Error, v. Solomon Blue, Defendant in Error.
    ERROR TO GALLATIN.
    A refusal to grant a new trial can not be assigned as error.

      Hall, for plaintiff in error.

      Eddy, for defendant in error.
   Opinion of the Court by

Justice Smith.

This case comes before the court by way of exception to the opinion of the circuit court of Gallatin county, in refusing to grant a new trial. In the progress of the cause it appears that two new trials have already been had, and that the cause has been fully litigated before three several juries. The granting, or refusing a new trial, is a question to be determined in the sound discretion of the court to whom the application is addressed, and a refusal is no ground of error, as has been settled by the unanimous opinion of this court in the case of Clemson v. Kruper, ante, page 210, and other cases subsequent thereto.

There is nothing in the present case to authorize a departure from that decision, nor is it perceived but that entire justice has been rendered in the case. The jury, whose province it Was, have determined on the evidence, twice in favor of the plaintiff, and we can see no sufficient reason for unsettling their verdict, if it were even possible to exempt this case from the operation of the decisions of the court respecting new trials, the reasons for which have been heretofore given, and need not now be repeated.

The judgment of the circuit court is affirmed with costs. ,

Judgment affirmed.

       Cases in relation to new trials. Sawyer v. Stevenson, p. 24. Cornelius v. Boucher, p. 32. Collins v. Claypole, p. 212. Clemson v. Kruper, p. 210.
      The refusal of a court to grant a new trial is not a matter for which a writ of error lies. Barr v. Gratz, 4 Wheat., 213. 5 Cranch, 11. Ibid., 187. 7 Wheat., 248.

       See note to Sawyer v. Stevenson, ante, p. 24.


author: Chief Justice Wilson.

text:
    John Ankeny, Plaintiff in Error, v. James Pierce, Defendant in Error.
    ERROR TO JACKSON.
    A tenant is estopped from denying the title of his landlord.
    If a tenant enters upon and enjoys leased premises, though his landlord may have no title, the tenant has no right to complain of his landlord until after an eviction.

      Baker, for plaintiff in error.

      Cowles, for defendant in error.
   Opinion of the Court by

Chief Justice Wilson.

This is an action of covenant from the Jackson circuit court, founded upon an article of agreement for the leasing of the big Muddy-Saline, by Pierce, the plaintiff below, to the defendant, Ankeny. To the plaintiff’s declaration, the defendant filed five pleas, all of which were withdrawn except the third and fifth.

The third plea avers a want of consideration, to which plea the plaintiff replies, and the defendant files a demurrer to his replication. The court overruled the demurrer. This opinion is assigned for error, but I am clearly of opinion that the court decided correctly. The replication shows a good and valuable consideration; it sets forth a lease from the said Pierce to the said Ankeny, of the premises therein described, and the tenant, Ankeny, is estopped from denying the title of the landlord, Pierce, under whom lie had enjoyed the premises, as is alleged in plaintiff’s declaration. The demurrer to the fifth plea was well sustained ; the plea does not allege that Pierce had not obtained a lease from the governor, and for aught that appears, he may have had good title and authority to lease the premises. Another objection to the plea is, that it does not appear but that defendant entered upon and enjoyed the demised premises ; if so, he has no ground of complaint until after eviction, which is not alleged. The judgment of the court below is affirmed, with all costs here and below, and execution is directed to issue from this court.

Judgment affirmed

       While a tenancy exists, the tenant can not dispute the title of his landlord, either by setting np a title in himself, or a third person. Dunbar v. Bonesteel, 3 Scam., 34. Wells v. Mason et al., 4 Scam., 90. Furgeson v. Miles, 3 Gilm., 358. Rigg v. Cook, 4 Gilm., 351. Tilghman v. Little, 13 Ill., 241.
      The tenant must surrender up the possession before he can assail or question the title of his landlord. He must put the landlord in the same position he occupied, when he parted with the possession. Tilghman v. Little, supra, and cases there cited.
      But the tenant may show that the title of his landlord has terminated, either by its original limitation or by a conveyance to himself or a third person, or by the judgment and operation of law. Id.
      If the landlord transfers the estate, the allegiance of the tenant is due to the grantee. Id.
      If the estate is vested in a third person by operation of law, the tenant holds the possession subject to the title of such third person. Id.
      The tenant may purchase in the premises under a judgment against the landlord, and set up the title thus acquired, in bar of an action brought against him by the landlord. Id.
      A tenant has a right to attorn to one who has acquired his landlord’s title, but not to one who has acquired a title hostile to the landlord, although it may be a better title. Bailey v. Moore et al., 21 Ill., 165.
      An eviction in fact or in effect, which renders the premises useless, may prevent a recovery of rent. Halligan v. Wade, 21 Ill., 470.
      A tenant, upon a proceeding by distress, may show that he was evicted from a part of the premises, or that he was disturbed in his possession. Wade v. Halligan, 16 Ill., 507.


author: Justice Lockwood.

text:
    Moreland and Willis, Appellants, v. The State Bank of Illinois, Appellee.
    APPEAL FROM GALLATIN.
    The 22d section of the act establishing the state bank, is merely directory to the board of directors, and an omission by them to comply with it does not release the securities to a note executed to the bank for an accommodation.

    Rules of decision are the same in a court of equity as in a court of law.

       The present statute is nearly the same as that cited in the opinion of the court. Purple’s statutes, 1083, sec. 1. Scates’ Comp., 835. And under this statute the court holds that “ To sustain a plea under the statute, it must appear on the face of the note that the party signed it as security.” McAllister v. Ely, 18 Ill., 249. Payne v. Webster, 19 Ill., 103.
      This statute applies only to such obligations as are transferable by indorsement, so as to vest the legal interest in the assignee. Taylor v. Beck, 13 Ill., 384.
      The rule is well settled that mere passiveness or delay in proceeding against the principal, except when required by statute to sue, will not discharge a surety. The People v. White et al., 11 Ill., 341. Pearl et al. v. Wellmans, id., 352. Taylor v. Beck, 13 Ill., 376.
      If a creditor, by a valid and binding agreement, without the assent of the surety, give further time for payment to the principal, the surety is discharged both at law and in equity; and it makes no difference, whether the surety be actually damnified or not. Davis et al. v. The People, 1 Gilm., 410. Waters v. Simpson, 2 Gilm., 574. Warner v. Crane, 20 Ill., 148.
      A promise to delay for an uncertain period, will not discharge a surety. The time of extension must be definitely fixed. Gardner et al. v. Watson, 13 Ill., 352. Waters v. Simpson, 2 Gilm., 574.

   Opinion of the Court by

Justice Lockwood.

This action was originally commenced before a justice of the peace, and judgment rendered in favor of plaintiff below, against defendants below, as securities to a note given to said plaintiff. The defendants appealed to the circuit court of Gallatin county, where the following facts were agreed to by the parties : That the note was discounted upon the application of one Garner Moreland, and the accommodation was made to him upon his check, that neither the directors of the bank, nor any agent for them, ever gave the said Hazle Moreland and John Willis, any notice of the failure to renew said note, or of its non-payment, until the commencement of this suit, and that at the time the note fell due, and for twelve months after, the said Garner Moreland resided in this county, and was in solvent circumstances, and that he afterwards, before the commencement of this suit, left the state, and took with him all his property, and that these facts are all the evidence in the case.” The circuit court affirmed the judgment of the justice of the peace, and the case is brought into this court by appeal. It is, among other things, urged, that the securities became released, because the president and directors did not cause the note to be protested; and secondly, because they did not use diligence against the principal in the note. By the 22d section of the bank law, “it shall be the duty of the board of directors of the said principal bank or branch, to have the note (if a note) protested; if said loan be secured by mortgage, to have the mortgage foreclosed, and to proceed to the collection of said debt, without delay.” Does the mere omission of the board of directors to have the note protested and sued, operate as a release to the securities?

It is a general rule of the common law, that mere delay to sue, does not release the security. And it is a controverted point, whether a refusal to comply with the request of the security to bring suit would release him.

But, by ‘“an act providing for the relief of securities in a summary way in certain cases,” passed 24th March, 1819, it is provided, that a security may, by notice in writing to the creditor, require him to put the note, &c., in suit, and in default to comply with such request, the creditor shall thereby forfeit his right of action against such security. In this case no such request has been made.

It may, however, well be doubted, whether the legislature did not intend to take away from securities, the right to give this written notice to bring suit, for by the 12th section of the bank law, the security is to “ sign such note as principal,” and consequently, liable to be considered as such. It is, however, unnecessary to decide what effect a notice to bring suit would have, as no such notice has been given.

In putting a construction upon the 22d section of the bank act, it is the duty of the court to ascertain the intention of the legislature, by carefully examining the context, and give such a construction to each of the provisions of the act as will harmonize with other parts of the act, if it can be done without violating any of the acknowledged rules of construing statutes. Acting upon this principle, the court are of opinion that the 22d section of the bank law is to be considered as merely directory to the board of directors, and their neglect forms no ground of defense to the debtor, or his securities. The directors were not acting in their own right, and any omission of duty on their part ought not to work an injury to the state, as it was in the power of the securities, by paying the note, to commence suit and thus secure themselves. The court are confirmed in this construction, by a recent decision of the supreme court of the United States.

By the post-office law, “If any postmaster shall neglect or refuse to render his accounts and pay over to the postmaster-general the balance by him due, at the end of every three months, it shall be the duty of the postmaster-general to cause a suit to be commenced against the person or persons so neglecting or refusing; and if the postmaster-general shall not cause such suit to be commenced within six months from the end of every such three months, the balances due from every such delinquent shall be charged to, and be recoverable from, the postmaster-general.” . It is observable, that the requirement of the act of Congress to commence suit against postmasters, is as "strong as in the case of the board of directors under the bank act, and in addition, the, postmaster-general is to be charged with all sums due from postmasters, if he neglects performing his duty. Yet the supreme court of the United States have decided, in an action on the postmaster’s bond, that his securities were not discharged by the neglect of the postmaster-general, and that the remedy given against the postmaster-general was intended for the benefit of the government, and consequently, was cximulative in its character.

We have not seen this decision, but such we understand to be its import. It was argued, on the part of the defendants below, that by commencing suit before a justice of the peace, the circuit court was authorized to decide this case, in the same manner that a court of equity would have done. The rule, however, is the same in courts of law and equity, and whatever would exonerate the security in one court, would also in the other. The facts being ascertained, the rule must be the same in this court as in a court of chancery. People v. Jansen, 7 Johns., 337. It is laid down in Jansen’s case, “ that mere delay in calling on the principal, will not discharge the surety, is a sound and salutary rule, both at law and in equity.” This case of The People v. Jansen, is relied on by defendants below, as an authority in point, to show that the laches of the board of directors, operates as a good defense to this suit. If that case, since the decision in the supreme . court of the United States, on postmasters’ bonds, should be considered as correctly decided, still, we think that there is a wide difference between that case and this. The securities in that case were bound for the faithful performance of the duties of an officer. Here, the defendants bound themselves absolutely, to pay the note when it became due.

Gatewood, for appellants.

Eddy, for appellee.

They are to pay unconditionally. The risk of the insolvency of the principal is assumed by the sureties, and it was their business to see that the principal paid the note when it became due. Jansen’s case is not, therefore, analogous; and it was also decided under its peculiar circumstances, which have no application in this case. The objection that was made in the argument, that the bank, by its cashier, can not take an appeal, is not well founded, for both appeals were taken by the defendants below, and if the appeal had been taken on behalf of the bank, by the cashier, or prosecuting attorney, the court do not perceive that it would be liable to objection. The judgment must be affirmed with costs.

Judgment affirmed.

      Laws of 1821, p. 39.

       Laws of 1819, p. 243.

       Laws of 1821, p. 86.

       Gordon’s Digest, p. 63.

       The omission of the proper officer to recall a delinquent paymaster, in pursuance of the fourth section of the act of congress, of April 24th, 1816, does not discharge the surety. United States v. Van Zandt, 11 Wheat., 184.
      The neglect of the postmaster to sue for balances due by postmasters, within the time prescribed by law, although he is thereby personally chargeable with such balance, is not a discharge of such postmasters or their sureties, from liability on their official bonds. Locke v. P. M. General, 3 Mason, 446.
      The provisions of the law are merely directory to the P. M. Gen. and form no condition in the contract with the postmasrers or their sureties. Id.
      Mere laches, unaccompanied with fraud, forms no discharge of the contract of securityship between individuals. 9 Wheat., 720.
      In general, laches is not imputable to the government. Id.
      A surety in a bond is not discharged by a mere delay to demand p'ayment after it becomes due, unaccompanied by fraud, or an express agreement with the principal to allow the delay. 1 Gallison, 32.
      He is exonerated by any agreement, without his consent, between the creditor and principal, which varies essentially the terms of the contract, 1 Paine, 305. See 3 Stark. Ev., 1390 and cases there referred to in note.


text:
    John C. Gore, Plaintiff in Error, v. Chauncey Smith, Defendant in Error.
    ERROR TO FRANKLIN.
    It is erroneous to take a judgment by default, where the declaration has not been filed ten days before court, unless by consent.

      Eddy, for plaintiff in error.

      McRoberts, for defendant in error.
   Opinion of the Court by

Justice Lockwood.

This is an action of debt on a penal bond. The declaration was filed the first of October, 1827, and a default for not appearing was entered the fourth of the same month. This was clearly irregular. By the eleventh section of the practice act, “ the court, for want of appearance, may give judgment by default on calling the cause, except where the process has not been served, or declaration filed ten days before the term of the court.” The record states, that on the fourth day of October, 1827, came the parties by their attorneys, and the said defendant being three times solemnly called, made default, and came not.” This entry contradicts itself, and is probably a mistake of the clerk. It does not appear from the record, that the defendant waived his right to have the declaration filed ten days before the term, and without doing so the court had no power to enter his default, and thereby preclude him from making his defense. For this error, the judgment must be reversed with costs, and remanded to the Franldin circuit court for further proceedings.

Judgment reversed,.

       Rev. Code of 1827, p. 313.

       A party is entitled to a continuance if a plaintiff does not file an account ten days before the term commences, if he has common counts in his declaration. Hawthorn v. Cooper et al., 22 Ill., 225. Collins v. Tuttle, 24 Ill., 623.
      If the plaintiff desires to avoid a continuance, he can stipulate against using the common counts, (except as to the claim declared on specially when applicable,) or enter a nolle prosequi as to them. Ibid. The People v. Pearson, 1 Scam., 458.


text:
    Phœbe, a woman of color, Plaintiff in Error, v. William Jay, Defendant in Error.
    ERROR TO RANDOLPH.
    The act of 1807, respecting the introduction of negroes and mulattoes into trie territory, is void, as being repugnant to the sixth article of the ordinance of 1787, but indentures executed under that law are made valid by the third section óf the sixth article of the constitution of this state.
    A constitution can do what a legislative act can not, as it is the supreme, fixed, and permanent will of the people, in their original, sovereign, and unlimited capacity, and in it are determined the condition, rights, and duties of every individual of the community; from its decrees there can be no appeal, for it emanates from the highest source of power, the sovereign people.
    An act of the legislature is different, and if it contravenes the constitution, no repetition of it can render it valid.
    The ordinance of 1787 is still binding upon the people of this state, unless it has been abrogated by “ common consent.” Quere ?
    The act of accepting the constitution of this state, and admitting it into the Union by congress, abrogated so much of the ordinance of 1787 as is repugnant to that constitution.
    In a plea to an action of assault and battery, &c., brought to try the plaintiff's right to freedom, justifying under an indenture entered into with plaintiff, it is not necessary that it should state, or that the master should prove, that every requisition of the statute was complied with, before the execution of the indenture. In such case, the mus probandi rests upon the plaintiff, and he may show, in a replication to the plea, facts inconsistent with the validity of the indenture.
    A contract of service entered into in pursuance of the act of 17th September, 1807, is not terminated by the death of the master, but passes to his legatees, executors, or administrators, but not to an heir at law.
    The administrator has no power to compel the servant " to attend to the ordinary business ” of the administrator; he has only the custody of the servant, for safe keeping, until his time of service can be sold.
    A demurrer by either party has the effect of laying open to the court, not only the pleading demurred to, but the entire record, for their judgment upon it as to the matter of the law, and if two or more of the pleadings be bad in substance, the court will give judgment against the party who committed the first fault.
   Opinion of the Court by

Justice Lockwood.

This is an action of trespass, assault, battery, wounding, and false imprisonment, to which the defendant plead that the plaintiff, on the 26th day of November, 1814, before Wm. C. Greenup, clerk of the court of common pleas of Randolph county, Illinois territory, agreed to and with one Joseph Jay, the father of this defendant, and who is now deceased, to serve him as an indentured servant, for and during the term of forty years from and after the day and year aforesaid, and then and there entered into and acknowledged an indenture, whereby she bound herself to serve the said Joseph Jay forty years next ensuing said date aforesaid, conformably to the laws of the Illinois territory, respecting the introduction of negroes and mulattoes into the same; and defendant avers, that the said Joseph has since departed this life, leaving this defendant, his only son and heir at law, and who is also his administrator. That plaintiff came to his possession lawfully, after the death of said Joseph. That in order to compel plaintiff to attend to and perform the duties of an indentured servant, in doing the ordinary business of him, the said defendant, and remain in his said service, he had necessarily to use a little force and beating, which is the same trespass, &c. To this plea the plaintiff demurred, and the defendant joined in demurrer. The circuit court sustained the plea, and thereupon the plaintiff obtained leave to withdraw her demurrer and reply.

Several replications were filed, to which defendant demurred, and the demurrers were sustained, and judgment given on the demurrers for the defendant. To reverse which judgment, a writ of error has been brought to this court. Erom the conclusion I have arrived at, I deem it unnecessary to state the matter, or legality of the replications. The first question presented by this case is, whether the act concerning the introduction of negroes and mulattoes into this territory, passed 17th September, 1807,” by the territory of Indiana, and continued by the territory of Illinois, was not a violation of the sixth article of the ordinance of congress, passed 13th Jnly, I787, for the government of the territory of the United States, north-west of the Ohio river. That portion of the ordinance applicable to this case, reads as follows : “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted.” The first, second and third sections of the act of 1807 are as follows : “It shall and may be lawful for any person, being the owner or possessor of any negroes or mulattoes of and above the age of fifteen years, and owing service or labor as slaves in any of the states or territories of the United States, or for any citizen of the said states or territories purchasing the same, to bring the said negroes and mulattoes into this territory. Sec. 2. The owner or possessor of any negroes or mulattoes, as aforesaid, and bringing the same into this territory, shall, within thirty days after such removal, go with the same before the clerk of the court of common pleas of the proper county, and in the presence of said clerk, the said owner or possessor shall determine and agree, to and with his or her negro or mulatto, upon the term of years which the said negro or mulatto will and shall serve his or her said owner or possessor, and the said clerk is hereby authorized and required to malte a record thereof, in a book which he shall keep for that purpose.” Section 3d. “If any negro or mulatto, ^removed into this territory as aforesaid, shall refuse to serve his or her owner as aforesaid, it shall and may be lawful for such person, within sixty days thereafter, to remove the said negro or mulatto to any place which, by the laws of the United States or territory, from whence such owner or possessor may, or shall be authorized to remove the same.”

If the only question to be decided was, whether this law of the territory of Illinois conflicted with the ordinance, I should have no hesitation in saying that it did.

Nothing can be conceived farther from the truth, than the idea that there could be a voluntary contract between the negro and his master. The law authorizes the master to bring his slave here, and take him before the clerk, and if the negro will not agree to the terms proposed by the master, he is authorized to remove him to his original place of servitude. I conceive that it would be an insult to common sense to contend that the negro, under the circumstances in which he was placed, had any free agency. The only choice given him was a choice of evils. On either hand, servitude was to be his lot. The terms proposed were, slavery for a period of years, generally extending beyond the probable duration of his life, or a return to perpetual slavery in the place from whence he was brought. The indenturing was in effect an involuntary servitude for a period of years, and was void, being in violation of the ordinance, and had the plaintiff asserted her right to freedom previous to the adoption of the constitution of this state, she would, in my opinion, have been entitled to it. But by the third section of the sixth article of the constitution of this state, “Each and every person who has been bound to service by contract or indenture, in virtue of the laws of the Illinois territory heretofore existing, and in conformity to the provisions of the same, without fraud or collusion, shall be held to a specific performance of their contracts or indentures, and such negroes and mulattoes as have been registered, in conformity with the aforesaid laws, shall serve out the time appointed by such laws.”

And here, certainly, a very grave question arises, and that is, if these indentures were originally void, can any subsequent act, and that without the consent of the persons most interested, make them good ? I readily concede, that no subsequent legislative act could have made the indenture valid. Can then this constitutional provision make a void indenture valid? In order more fully to understand this question, it will be necessary clearly to ascertain the difference between an act of the legislature and a constitutional provision. What is meant by the term “ constitution” as applied to government ? It is the form of government instituted by the people in their sovereign capacity, in which first principles and fundamental law are established. The constitution is the supreme, permanent and fixed will of the people in their original, unlimited and sovereign capacity, and in it are determined the condition, rights and duties of every individual of the community.

From the decrees of the constitution there can be no appeal, for it emanates from the highest source of power, the sovereign people. Whatever condition is assigned to any portion of the people by the constitution, is irrevocably fixed, however unjust in principle it may be. The constitution can establish no tribunal with power to abolish that which gave and continues such tribunal in existence. But a legislative act is the will of the legislature, in a derivative and subordinate capacity. The constitution is their commission, and they must act within the pale of their authority, and all their acts, contrary or in violation of the constitutional charter, are void.

If they have no power to pass an act, any number of repetitions of unconstitutional acts, or acts beyond the pale of their authority, can never make the original act valid. As it respects the territorial legislature, the ordinance had the same controlling influence over their acts as a constitution has over the legislature of a state. By this course of reasoning I conclude, that although the act of the territory in relation to indenturing negroes and mulattoes, was originally void, yet it enumerated a description of persons that the constitution of this state has undertaken to fix their condition in life, and the rights they shall possess in this community. It has determined that they shall serve their masters according to the provisions of the law before recited. It was, however, urged on the argument of this cause, that the people of this state, when they assembled in convention, were not absolutely free and independent, and at liberty to adopt what frame of government they chose, for they were controlled by the constitution of the United States, and by the ordinance of 1787. The provision of the third section of the sixth article of the constitution of this state does not, as I conceive, in any way conflict with the constitution of the United States. Several of the states, in the formation of their constitutions, have ingrafted into them provisions relative to the right to hold persons in slavery, without objection. The ordinance, however, is no doubt still binding upon the people of this state, unless it has been abrogated by “ common consent.” By “ common consent,” I understand the United States, and the people of this state, and whenever they shall agree that the whole, or any part of the ordinance of 1787 shall he repealed, it will, so far as it affects this state, become a dead letter. The people of this state, by recognizing the validity of the indenturing and registering of servants, in pursuance of the act of 1807, before referred to, gave their consent, to alter so much of the ordinance as was repugnant to the constitution of this state. When the constitution of this state was presented to congress, in order to our admission into the Union, the attention of that body was called to that clause of our constitution which requires that registered and indentured servants shall be held to serve pursuant to said act, and which was contended, and if I mistake not, was conceded to be a violation of the ordinance. Congress, however, admitted this state into the Union with this constitutional provision, and thereby, I think, gave-their consent to the abrogation of so much of the ordinance as was in opposition to our constitution. Having thus shown that registered and indentured servants are bound to serve, the next question that arises in this case is, whether the defendant has set forth sufficient matter in his plea to support Ms claim to the services of the plaintiff? Several objections have been made to the plea. Those which are deemed important, I shall notice.

1. That the plea does not state the existence of those facts which would authorize the indenturing, to wit: that she owed service to Joseph Jay, was above fifteen years of age, and that the indenturing took place within thirty days after she was brought into the territory.

2. That by the death of Joseph Jay, the indenture ceased to have any operation.

3. The plea is uncertain whether defendant claims the service in virtue of his administration, or his heirship; and

4. That the plea does not answer the wounding.

As it regards the first objection, it evidently appears from the constitution that it does not intend to confirm every indenture. It only saves those that were made “in conformity to the provisions of the law, without fraud or collusion.” If the court could not inquire beyond the fact of indenturing, then this provision of the constitution would be useless and absurd. But upon the ground assumed, to sustain the validity of these indentures, no doubt can exist, that, unless the indenturing was in conformity to the law, it is void. On whom then must the onus probandi rest ? I should think, in ordinary cases, on the party who sets up a claim, founded on statute, and in derogation of common right ? It was, however, on the argument urged with great force, that if it was incumbent on the master after a lapse of several years, to prove that every prerequisite of the statute had been complied with, it would subject the master in most cases to great inconvenience and expense, and in many cases to the loss of services that the constitution had secured to him. Witnesses might forget, remove or die, and thus, by the lapse of time and accident, be deprived of their proof. It was also urged, that something ought to be presumed in favor of records, that the officers had done their duty. These arguments possess considerable weight, and I feel it the duty of the court in deciding on the point, to allow them to have some influence.

If the injury complained of had consisted in constraint, imposed on the plaintiff soon after the time of the indenturing before the clerk, and no subsequent imprisonment of the plaintiff had taken place, the statute of limitations would have barred the action in five years, and the defendant would not then have been bound to have plead a right to restrain the plaintiff’s liberty under the indenture. The statute of limitations was made for the purpose of quieting parties, after so much time has elapsed, as affords a presumption that the evidence might be lost by death or forgetfulness. That this statute is a wise law, all who are conversant with trials in courts and the frailty and forgetfulness of mankind will readily concede. The law, therefore, discourages law suits, after so much time has intervened as to create the presumption that witnesses have died or forgotten the transactions ; or, in other words, the law favors the diligent and not the slothful. Had the plaintiff brought an action within five years after the commencement of what she complains as an unlawful restraint on her liberty, I should have been clearly of opinion that it was incumbent on the defendant to have shown, not an indenturing only, but that the indenture had been made “ in conformity to the provisions of the law.” But after a period of more than ten years has intervened, and an acquiescence in the mean time of the plaintiff, I think it would impose what would in some cases be impossible, and in all an unreasonable hardship, to require the defendant to plead and prove all the facts necessary to show the validity of the indenture. I am, therefore, of opinion, under .the circumstances of this case, that it was unnecessary in the plea to aver the existence of the facts to warrant the making of the indenture in question. As, however, this opinion is based on legal presumptions, it would certainly be competent for the plaintiff, by way of replication, to state facts inconsistent with these presumptions, and thereby take upon herself the burthen of proving that they had no existence.- The second objection to the plea is, “ that by the death of Joseph Jay, the indenture ceased to have any operation.” The act “ concerning the introduction of negroes and mulattoes into this territory,” passed September the 17th, 1807, contains no provision as to the consequences of the death of the master, upon the indentured servants. But by the third section of the sixth article of the constitution of this state, before referred to, it is declared that “ each and every person, who has been bound to service, by contract or indenture, in virtue of the laws of Illinois territory, shall be held,” <fcc. From this phraseology it would seem that the convention recognized the existence of more than one law that had reference to the indenturing and registering of negroes and mulattoes.

It hence becomes necessary to inquire into all the laws of the territory in relation to this description of persons. By the seventh section of the act entitled “ an act concerning executions,” passed the 17th of September, 1807, being the same day on which the indenturing law was passed, it is enacted, “ That the time of service of such negroes or mulattoes, may be sold on execution against the master, in the same manner as personal estate, immediately from which sale, the said negroes and mulattoes shall serve the purchaser or purchasers for the residue of their time of service.” By the act entitled “an act to regulate county levies,” passed the same day, “ bound servants,” are declared to be taxable as property. And by the third section of the act entitled “ an act concerning servants,” passed on the said 17th day of September, 1807, it is declared that “the benefit of the said contract of service shall be assignable by the master, to any person being a citizen of this territory, to whom he shall, in the presence of a justice of the peace, freely consent that it shall be assigned, the said justice attesting such free consent in writing, and shall also pass to the executors, administrators, and legatees of the master.” But by a strict and literal construction of the language employed in the first section of this statute, to which the word “ contract,” in the third section refers, it might be considered doubtful whether the words “ negroes and mulattoes,” under contract to serve another, embrace the negroes and mulattoes registered and indentured under the act “ concerning the introduction of negroes and mulattoes into this territory,” or only negroes and mulattoes who shall come into this territory under “contract to serve another.” But when it is recollected that the convention supposed that there were several laws on the subject of indentured and registered servants, I have no hesitation in concluding that the act concerning servants embraced indentured servants. It is also a rule in the construction of statutes, that the sense which “ the contemporaneous members of the profession had put upon them, is deemed of some importance, according to the maxim that contemporánea expositio est forlissima in lege.” 1 Kent’s Com., 434. I have been informed that the members of the bar always understood the act concerning servants, had application to indentured and registered servants, and upon that opinion the community at large have supposed that these persons might be sold, with the consent of the servants, and that they went to the administrator in the course of administration. It is a further rule in construing statutes, that “ several acts in pari materia, and relative to the same subject, are to be taken together and compared in the construction of them, because they are considered as having one object in view, and as acting upon one system. This rule applies, though some of the statutes may have expired, or are not referred to in the other acts. 1 Kent’s Com., 433. The first legislature, after the adoption of the constitution of this state, in the act entitled “ an act respecting free negroes and mulattoes, servants and slaves,” passed 30th of March, 1819, have adopted the third section of the “ act concerning servants” verbatim, though from the context it does not appear that any contract of service is before spoken of. This section of the act of 1819, can not have any object or meaning, unless it have reference to the indentured and registered servants mentioned in the constitution. I thence conclude that the third section of the act “ concerning servants,” and the 11th section of the act of 1819, embrace indentured and registered servants, and consequently, upon the death of Joseph Jay, the plaintiff went to the administrator as assets. The third objection to the plea is, that it is uncertain whether the defendant claims the service in virtue of his being administrator or heir ? This objection is, I think, fatal. The plea, in this respect, is wholly indefinite. If the defendant claims the plaintiff in his character as heir, there is no law to sanction the claim. If the services of the plaintiff are to be considered as property, by the common law, they would go as assets to the administrator, and the statutes that I have referred to, give the same direction. Should the party claim the defendant as administrator, still the plea would be bad, as an administrator would only have the custody of the plaintiff for safe keeping, until her time of service could be sold ; as administrator, he had no power to compel the plaintiff “ to attend to the ordinary business of him, the said defendant.” On the ground that the plea is too uncertain as to the character in which the defendant claims the services of the plaintiff, and upon the further ground that in neither capacity can the defendant claim her services, the judgment must be reversed. The plea is also defective, in point of form, for not answering the wounding. It was urged on the argument, that plaintiff, having demurred to defendant’s plea, and having subsequently withdrawn it, and replied, upon the demurrer’s being overruled in the court below, it is now too late to object to the plea. The withdrawing the demurrer, is as if it had never been put in; consequently, when a good declaration is filed, the defendant must interpose a good bar, or else the plaintiff is entitled to recover. It is a rule of pleading, that “ a demurrer by either party, has the effect of laying open to the court, not only the pleading demurred to, but the entire record, for their judgment upon it as to the matter of the law.” 1 Saund., 285, (n. 5). And “ if two or more of the pleadings be bad in substance, the court will give judgment against the party who committed the first fault,” Archbold’s civil pleadings, 351. Therefore, notwithstanding the plaintiff’s replication may be bad, of which I give no opinion, if the plea also be bad, judgment must be for plaintiff. I am of opinion that judgment must be reversed with costs, and that the proceedings be remanded to the Randolph circuit court, with liberty to defendant to amend his plea, on payment of the costs occasioned thereby. ,

Baker, Breese, and Cowles, for plaintiff in error.

McRoberts, Young, and T. Reynolds, for defendant in error.

Judgment reversed.

       Rev. Code of 1807, vol. 2, p. 467.

        Vide Laws of 1823, p. 38.

        Vide Rev. Laws of 1827, p. 36.

       Rev. code of 1807, vol. 1, p. 188.

       Ibid., vol. 2, p. 608.

       Ibid., p. 647.

       Laws of 1819, p. 358.

         The effect of the ordinance of 1787, having undergone discussion in the supreme court of Missouri, a reference is here made to the cases there decided.

        Merry v. Tiffin and Menard, Dec. sup. court, Mo., 725. This case is now before the supreme court of the U. S. Winney v. Whitesides, ibid., 472.

        Vide the case of Nance, a girl of color v. Howard, ante, p. 242.

       See note to the case of Nance, &c. v. Howard, ante, p. 242.


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    Joseph Duncan, Appellant, v. Ingles and Burr, Appellees.
    APPEAL FROM JACKSON.
    If a defendant in a suit at law can not prove his defense, he should file a bill for a discovery, and if he has a legal defense and neglects to make it, equity will not relieve.
    Blackwell, for appellant.
    Cowles, for appellee.
   Opinion of the Court by

Justice Lockwood.

This was a bill in chancery, filed by the complainant, to perpetually'enjoin a judgment obtained in the Jackson circuit court, in favor of the defendants, against the complainant. The bill states that the recovery was had on a judgment obtained in the state of Kentucky. The court, after a careful perusal of the bill, are clearly of opinion that the bill discloses no ground for the interference of a court of equity. If the complainant could not prove his defense, it was his duty to have filed a bill of discovery when the suit in Kentucky was pending against him. The law is well settled, if a party has a legal defense to a suit at law, and neglects to make it at the proper time, he is precluded from seeking relief in equity. Judgment affirmed with costs, ,

Judgment affirmed.

       Vide Hubbard v. Hobson, ante, 190. Crow’s executors v. Prevo, ante, 216.

       See note to More et al. v. Bagley et al., ante, p. 94.


text:
    Peter Kimmel, Plaintiff in Error, v. Jacob Schwartz, Defendant in Error.
    ERROR TO JACKSON.
    To take a case out of the statute of limitations, proof that the defendant promised to pay the debt is insufficient, without evidence of the original consideration of the indebtedness.

    The promise to pay a debt barred by the statute only removes the bar, and leaves the case to be proved, as if no statute had been pleaded.
    The rule, as to what proof is required to take a case out of the statute is this: The promise to pay must be absolute and unqualified, and is not to be extended by implication or presumption beyond the express words of the promise.
    It is correct to substitute another person as security for costs, and then permit the discharged security to testify.
    This was an action of assumpsit, for goods, wares, and merchandise, sold and delivered, money lent and advanced and on an account stated, brought in the Jack-son circuit court, by Schwartz against Kimmel. Kimmel pleaded non assumpsit, upon which issue was joined, and non assumpsit within five years. This plea was traversed and an issue to the country; jury and verdict for the plaintiff for two thousand one hundred and thirty-one dollars and thirty-one cents. The defendant moved for a new trial for the following reasons:
    1. The suit'was brought without the authority of the plaintiff.
    2. The plaintiff is, and has been insane since and before the pretended existence of the alleged cause of action.
    3. No promise to pay within five years was proved.
    4. The plaintiff never knew of the action or cause of action.
    5. The verdict is against law and evidence.
    The motion for a new trial was overruled. During the progress of the trial, and after the plaintiff had gone through with the testimony on his part, the defendant moved the court to exclude the evidence from the jury, and direct as in case of a nonsuit. Which motion the court overruled, to which opinion of the court the defendant excepted. From the bill of exceptions, the following is the testimony given on the trial, by plaintiff: Eli Penrod, a witness for plaintiff, testified that about two years before the trial, he was living at the defendant’s house, when Mrs. Schwartz, the wife of the plaintiff, was there, and asked the defendant for money, and said that the defendant owed her for a long time; the sum asked for by Mrs. Schwartz was about two thousand five hundred dollars. The witness understood from the conversation between them that she had let defendant have notes which he had collected, and had also lent him money—that during the same conversation, defendant said he had not the money then, but that he was going to New Orleans and would get money, and when he returned, if she would send one of her boys with him to Shawneetown to prove a paper or some hand writing, witness did not recollect which, he would pay her, to which Mrs. Schwartz replied, that the boys did not know any thing about the hand writing. The witness further stated, that at the time of this conversation, there were no persons present, but defendant, Mrs. Schwartz, and witness, and he does not know whether she had any papers in her hands or not; that she was there about half an hour.
    Susannah Will testified, that she went in company with Mrs. Schwartz to see defendant, and that Mrs. Schwartz told defendant, in the presence of witness, that he owed her the sum of two thousand five hundred dollars, and that she wanted it. To which the defendant replied, yes, but said he had not the money to pay her. The time of this conversation was about four years before the commencement of the suit. This witness also stated, that about two years thereafter, defendant was at her, witness’ husband’s house, and in a conversation with witness, defendant said that he had rented a house in Arkansas, for a tavern, and wanted Mr. Will to move there and keep a tavern, and said he would try to make up for Mrs. Schwartz five or six hundred dollars. Witness further stated, that Mrs. Schwartz was the sister of defendant, and that her husband, the plaintiff, had never been in this state; that Mrs. Schwartz, with the family, had lived in it about seven years, apart from the plaintiff, and that she understood that this claim on defendant was for money that Mrs. Schwartz had lent him.
    Conrad Will testified, that in the year 1817, he had a settlement with defendant, at Kaskaskia, in which he fell in defendant’s debt, and Mrs. Schwartz said she would take witness for her debtor, and credit defendant with the amount on the ten hundred and fifty-five dollars which she had let defendant have at Pittsburgh, which arrangement the defendant agreed to. He also understood from Mrs. Schwartz, that this ten hundred and fifty-five dollars had been settled.
    George Schwartz, the son of the plaintiff, testified that in the month of August, 1824, shortly before the commencement of this suit, he went to the defendant and asked him for the sum of 2,182 dollars thirty-seven and a half cents, which the defendant was owing them. To which defendant replied, that that was the sum, but said also that he had settled it with George Kimmel; that the demand against defendant for said sum of money was created twelve or thirteen years ago ; that his mother when in Pennsylvania, had frequently let defendant have money; that the amount now claimed was loaned to defendant by his mother, the plaintiff’s wife. On his cross-examination he stated that the plaintiff lived in the state of Pennsylvania, and had not been in his right mind or capable of doing business since the year 1810; that this suit was commenced by direction of his mother who has lived in this state for about seven years, and has been in the habit of transacting business for plaintiff’s family both before and since she came to this state. This witness was objected to, on the ground that he was the security for the costs of the suit, but the court permitted him to be released, and another security substituted. Judgment being rendered on the verdict against the defendant, he sued out a writ of error, and assigned for error, 1. The refusal of the court to exclude the testimony and direct a nonsuit.
    2. In permitting the security for costs to be released and become a witness.

       See note to Mellick v. De Seelhorst, ante, p. 221.

   Opinion of the Court by

Justice Lockwood.

This was an action of assumpsit. The defendant below plead non assumpsit, and the statute of limitations. On the trial of this cause, after the plaintiff, Schwartz, had gone through with his testimony, the defendant moved the court to charge the jury that the testimony was insufficient, which instruction the court refused to give, and a bill of exceptions was tendered and signed, containing all the testimony given in the cause.

The testimony is very loose, confused and contradictory. After a careful perusal of it, the mind is left without any satisfactory conclusion as to the real merits of the case. The duty of the court, in a case thus situated is very difficult. We are, however, satisfied that injustice has been done, and that the cause ought to be presented to another jury.

In a recent case, decided in the supreme court of the United States, they were of opinion, that proof that defendant had promised to pay a debt barred by the statute of limitations, is insufficient, without evidence of the original consideration of the indebtedness. The promise to pay a debt barred by the statute, only removes the bar and leaves the case to be proved as if no statute of limitations had been pleaded. The evidence on this point is very defective. It is impossible to gather from the proof the precise nature of the original debt. Without some clear and distinct evidence of the existence of the original demand, it was the duty of the court to have sustamed the defendant’s motion for a nonsuit, or given the instructions.

Eddy and Breese, for plaintiff in error.

Baker, for defendant in error.

As this case will have to go to another jury, the court lay down the following, as the rule heretofore adopted by this court as to what proof is required to take a case out of the statute.

The promise to pay must he absolute and unqualified, and is not to be extended by implication or presumption beyond the express words of the promise.

Several other objections have been raised to the proceedings in this cause, but the court do not deem any of them of sufficient importance to be commented upon, except the objection that the court suffered the security for costs to be discharged and new security taken, and then permitted the discharged security to testify. This was correct. Security for costs is in the nature of special bail, except the liability is' not so great, yet bail are often discharged in order to obtain their testimony.

The judgment must be reversed with costs, and the cause remanded to the Jackson circuit court, where a venire de novo must be awarded,

Judgment reversed.

         The statute of limitations, instead of being viewed in an unfavorable light as an unjust and discreditable defense, should have received such support from courts of justice as would have made it what it was intended emphatically to be, a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. Bell v. Morrison and others, 1 Peter’s Rep., 360.
      If the bar of a statute is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate; and if any conditions are annexed, they ought to be shown to be performed. Id., 362.
      If there be no express promise, but a promise is to be raised by implication of law, from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a present subsisting debt which the party is liable and willing to pay. If there he accompanying circumstances which repel the presumption of a promise or intention to pay; if the expression be equivocal, vague or indeterminate, leading to no certain conclusion, but at best to probable inferences which may affect different minds in different ways, they ought not to go to a jury as evidence of a new promise to revive the cause of action. Id., 362.
      To take a case out of the statute there must be an unqualified acknowledgment not only of the debt as originally due, but that it continues so; and if there has been a conditional promise, that the condition has been performed. Bangs v. Hall, 2 Picker. Mass. Rep., 368.
      If at the time of the acknowledgment of the existence of the debt such acknowledgment is qualified in a way to repel the presumption of a promise to pay, it will not be evidence of a promise sufficient to revive the debt and take it out of the statute. Sands v. Gelston, 15 Johns. Rep., 511.
      Vide Clementson v. Williams, 8 Cranch, 72. Wetzell v. Bussard, 11 Wheat., 309. Harrison v. Handley, 1 Bibb, 443. Gray v. Lawridge, 2 Bibb, 284. Ormsby v. Letcher, 3 Bibb, 269. Bell v. Rowland’s adm’rs, Hardin's Rep., 301. Mellick v. De Seelhorst, ante, p. 221.


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    The President and Directors of the State Bank of Illinois, Plaintiffs in Error, v. Hazle Moreland, Defendant in Error.
    ERROR TO GALLATIN.
    It is regular, under the act of 1825, concerning judgments and executions, to proceed to foreclose a mortgage for money borrowed of the state bank, by scire facias.

   Opinion of the Court by

Justice Lockwood.

This action was commenced by scire facias in the Gallatin circuit court, on a mortgage executed to plaintiff, and recorded according to law.

The defendant demurred to the scire facias, and judgment was rendered for defendant. The cause was brought into this court by writ of error. The error relied on is, that the circuit court decided erroneously in sustaining the demurrer to the scire facias.

It is understood by the court, that the circuit court, in sustaining the demurrer, went upon the ground that the bank mortgages do not contain an absolute promise to pay the money, but in order to charge the mortgagor, it is necessary to refer to a promissory note, dehors the mortgage, in order to assign a breach of the condition of the mortgage. If this constitutes a valid objection to proceeding by scire facias on the mortgage, then the demurrer was properly sustained. By the 18th section of the act concerning judgments and executions, passed 17tli of January, 1825, it is enacted, “that if default be made in the payment of any sum of money, secured by mortgage on lands and tenements, duly executed and recorded, and if the payment be by installments, and the last shall have become due, it shall be lawful for the mortgagee, his executors, or administrators, to sue out a writ of scire facias, from the clerk’s office of the circuit court in which the said mortgaged premises may be situated, or any part thereof, directed,” &c. If language is comprehensive enough to authorize this proceeding by scire facias, the legislature have certainly employed it in this statute. Whenever default is made in the payment of any sum of money secured by mortgage, and the last installment is due, the mortgagee is allowed to proceed by scire facias. The payment of the money borrowed of the bank was certainly secured by mortgage, and consequently the plaintiffs were authorized to proceed by scire facias. The court are at a loss to perceive any solid objection to this mode of recovering the money due the bank.

Eddy, for plaintiff in error.

The judgment must therefore be reversed, with costs, and the cause remanded to the Gallatin circuit court for further proceedings.

Judgment reversed.

      Laws of 1825, p. 157.

       See note to Cox v McFerron, ante, p. 28,


text:
    John Adams, sen’r., Peter Philips and Jacob Philips, Plaintiffs in Error, v. Chauncey Smith, Defendant in Error.
    ERROR TO FRANKLIN.
    A constable can not enter upon land and take in execution fruit trees standing and growing—they are part and parcel of the freehold.
    It is not error to refuse a new trial.
   Opinion of the Court by

Justice Lockwood.

This was an action of trespass quwre clausum fregit. The defendants plead not guilty, and Adams justified under an execution from a justice of the peace against the plaintiff, by virtue of which he seized and took the apple trees, &c., in the plaintiff’s declaration mentioned.

To this plea plaintiff below demurred, and the court sustained the demurrer, and on trial of the issue of not guilty, the jury found a verdict for plaintiff below for 130 dollars, and judgment was given thereon. To reverse which, a writ' of error has been brought to this court. The first error assigned is, that the circuit court erred in sustaining the demurrer. The only question presented by the demurrer is, whether on an execution from a justice of the peace, a constable can enter on land and sell fruit trees there standing and growing ? This question is easy of solution. Fruit trees are part and parcel of the freehold, and can in no sense be considered as goods and chattels. How far trees growing in a nursery might be considered goods and chattels, is not involved in the question decided by the demurrer, for the plea does not allege them to be nursery trees intended for sale. The demurrer was, therefore, correctly decided.

McRoberts and Hubbard, for plaintiffs in error.

Cowles, for defendant in error.

Another error assigned is, that the court erred in overruling the motion for a new trial. It has been frequently decided by this court, that overruling a motion for a new trial, can not be assigned for error. The judgment below must be affirmed with costs, ,

Judgment affirmed.

         Lord Kenyon, in the case of Penton v. Robarts, 2 East, 88, holds, that a nurseryman who is a tenant of land, may remove from the land his hot-houses and green-houses, with the trees growing, which he has erected.
      As to what is personal, and what real property affixed to the soil, vide Elwes v. Maw, 3 East, 28.
      A stone for grinding bark, affixed to a mill, called a bark mill, is not part of the freehold, but apersonal chattel. 6 Johns. Rep., 5.
      Wheat or corn growing is a chattel, and may be levied upon by execution. Whipple v. Foot, 2 Johns. Rep., 418.

       The question of what is realty and what is personalty, is, as will be seen by a brief review of some of the authorities, one about which there is much conflict of opinion. Browne on Statute of Brands, page 239, says : “ In certain cases, also, though they (crops, &c.,) are actually growing in land, they may never have any character of .realty themselves; as for instance, if the title to them and the title to the land were originally and h#ve remained distinct. A familiar case of this is found in nursery trees; the nursery man merely using the land for the purpose of nourishing his trees, the interest in the trees may be considered as separate from the realty, and they may well be denominated personal chattels, for the wrongful taking and conversion of which, the owner may maintain an action de bonis asportatis.” In Smith v. Surnam, 9 Barn. & Cres., 561, the defendant had agreed to purchase of the plaintiff a quantity of timber, (most of which was then standing,) at a certain price per foot. The court held this not to be an interest in land within the meaning of the statute of frauds.

        Sainsbury v. Matthews, 4 Mees. & Wels., 343, was a contract to sell the potatoes then growing on a certain tract of land at two shillings per sack, the plaintiff to have them at digging time and to dig them. Held not to be within the statute of frauds.
      In Smith v. Bryan, 5 Maryland Rep., 141, the court say: “ The principle to be gathered from a majority of the cases seems to be this, that where timber or other produce of the land, or any other thing annexed to the freehold, is specifically sold, whether it is to be severed from the soil by the vendor, or to be taken by the vendee under a special license to enter for that purpose, it is still, in contemplation of the parties, evidently and substantially a sale of goods only.”,,
      In Bishop v. Bishop, 1 Kernan’s (N. Y.) Rep., 123, it was held that poles, used necessarily in cultivating hops, which had been taken down for the purpose of gathering the crop, and piled in the yard with the intention of being replaced in the season of hop-raising, were a part of the real estate.
      Gibbs, C. J., in Lee v. Risdon, 7 Taunton, 191, said, that trees in a nursery ground are a part of the freehold until severed.
      In a late case in New York the question was very fully discussed. The facts of that case were as follows : A sculptor placed in the grounds in front of his house, on a base three feet high, a statue of Washington, weighing, with its pedestal which was cut from the same block of stone, about three tons. The base rested on a permanent artificial mound, raised for that purpose. The statue was not fastened to the base, nor was the latter affixed to the foundation upon which it rested: Held, that the statue was a part of the realty. This decision was placed principally on the intention of the person erecting the statue. Parker, J., who delivered the opinion of the majority of the court, said: “If the statue had been actually affixed to the base by cement or clamps, or in any other manner, it would be conceded to be a fixture and to belong to the realty. But as it was, it could have been removed without fracture to the base on which it rested. But is that circumstance controlling 1 A building of wood, weighing even less than this statue, but resting on a substantial foundation of masonry, would have belonged to the realty. A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend much upon the object of its erection. Its destination, the intention of the person making the erection, often exercise a controlling influence, and its connection with the land is looked at principally for the purpose of ascertaining whether that intent was, that the thing in question should retain its original chattel character, or whether it was designed to make it a permanent accession to the lands.” Snedeker v. Warring, 2 Kernan's Rep., 170.
      In Palmer v. Forbes et al., 23 Ill., 301, which was a contest between execution creditors and mortgagees of the railroad, and in which the question arose as to what was realty, Caton, C. J., said, “ We are of opinion that the rolling stock, rails, ties, chairs, spikes, and all other material brought upon the ground of the company incumbered by the mortgage, and designed to be attached to the realty, should be considered as a part of the realty, and incumbered by the mortgage as such; but fuel, oil, and the like, which are designed for consumption in the use, and which may be sold and carried away, and used as well for other purposes as in the operation of the road, and when taken away have no distinguishing marks to show that they were designed for railroad uses, can not, we think, with any propriety," be treated or considered as anything but personal property, and subject to, and governed by the law applicable to such property.”
      Brick, as soon as they are placed in a wall, become attached to the freehold, and if they are removed from the wall, unless for the purpose of being replaced by better material by* the person who put them there, the proprietor of the soil is the owner of the brick. Moore v. Cunningham, 23 Ill., 328.
      Hewn timbers intended for a granary, fence posts, &c., unattached to the soil, though on the land, are not appurtenances and do not pass by deed. Cook v. Whiting, 16 Ill., 480.
      See also Claflin v. Carpenter, 4 Metcalf Rep., 580. Safford v. Annis, 7 Maine Rep., 168. Cutler v. Pope, 13 id., 377. Bostwick v. Leach, 3 Day, 476. Green v. Armstrong, 1 Denio, 550. Westbrook v. Eager, 1 Harr., (N. J.) 81.


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    Jonathan Clark, Plaintiff in Error, v. Levi Roberts, Defendant in Error.
    ERROR TO MONTGOMERY.
    If the affidavit upon which an attachment is issued, does not comply with the requisitions of the statute, all the proceedings under it are void, and the attachment ought to be quashed.
    This suit was originally brought by attachment, before a justice of the peace in Madison county, sued out by Roberts against Clark upon the following affidavit, viz.:

      State of Illinois, Madison county:

    Levi Roberts being duly sworn, saith, that Jonathan Clark is justly indebted to him. in the sum of one hundred dollars, and that the said Clark is privately moving his property out of the county, and therefore prays an attachment.
    Levi Roberts.
    Sworn and subscribed before me this 3d day of June, 1826.
    E. Marsh, J. P.
    Judgment was rendered in favor of Roberts, from which Clark appealed to the circuit court of Madison county. A motion was there, made to quash the attachment, and at the same time a motion by plaintiff to amend his affidavit. The first motion was overruled, and the last sustained, to which an exception was taken. The amended affidavit is in the following form, viz.:

      State of Illinois, Madison county:

    Levi Roberts being duly sworn, saith, that Jonathan Clark is justly indebted to him in the sum of one hundred dollars, and that the said Jonathan Clark was, at the time of making the original affidavit in this cause, and suing out the attachment, privately moving out of the coilnty of Madison, so that the ordinary process of law could not be served upon him, and therefore prays an attachment.
    Sworn to in open court, Aug. 1, 1827.
    E. J. West, Clerk.

    The jury could not agree upon their verdict, and a change of venue upon motion, notice and affidavit, was ordered, at the instance of Clark, to Montgomery county.
    Upon a trial there, the jury found a verdict for Roberts for one hundred dollars in damages, and another bill of exceptions taken to the opinion of the court, in refusing to admit as evidence a certain agreement between one Piggot and Clark, which, as it is not noticed in the opinion of the court, is omitted. The principal errors assigned, are:
    1. That the court erred in overruling Clark’s motion to quash the attachment'.
    2. The court erred in permitting the plaintiff, Roberts, to amend his affidavit; and
    3. The amended affidavit is also void, it not being sworn to according to law.
   Opinion of the Court by

Justice Lockwood.

This action was originally commenced before a justice of the peace, by attachment. The affidavit states that Clark, the defendant below, “ is justly indebted to Roberts, in the sum of one hundred dollars, and that said Clark is privately moving his property out of the county,” &c. Judgment was rendered before the justice, in favor of Roberts, for one hundred dollars, and the cause removed to the circuit court of Madison county, by appeal, and subsequently the venue was changed to Montgomery, where judgment was again rendered for Roberts for one hundred dollars, besides costs. The cause is brought into this court by writ of error. A variety of errors have been assigned; it is, however, unnecessary to notice but one, which is, that the attachment was erroneously issued, and ought to have been quashed by the court. This objection is fatal.

McRoberts, for plaintiff in error.

Cavarly, for defendant in error.

The affidavit was necessary to give jurisdiction to the justice. It does not comply with the requisition of the statute; hence, all the subsequent proceedings are void. Mantz v. Hendly, 2 Hen. and Munf., 308. The courts in Kentucky sanction the same doctrine. The amendment of the affidavit, will not help the previous illegal proceedings. An affidavit being the foundation of the proceedings by attachment, must be framed agreeable to the provisions of the, statute, otherwise the justice has no jurisdiction. The circuit court ought to have quashed the attachment. The judgment below must be reversed with costs.

Judgment reversed.

       By the present statute any affidavit or writ of attachment may be amended, or a new affidavit filed.. Purple’s statutes, p. 92, sec. 6. Id., p. 98, sec. 8. Scates’ Comp., 229. See Phelps v. Young, post.


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    Josiah T. Betts and Samuel Smith, Administrators of Michael Jones, deceased, Appellants, v. Shadrach Bond, Appellee.
    APPEAL FROM RANDOLPH.
    The act of 1823, regulating administrations and the descent of intestates’ estates, &c., does not apply to the estates of those who died before the passage of the act. Under that law, the judgments obtained against the deceased in his life-time are to be first paid.
   Opinion of the Court by

Justice Lockwood.

This was an action of scire facias, brought by Bond, against defendants below, on a judgment obtained against them as administrators, for assets in futuro. The scire facias alleges that assets had come to the hands of defendants, sufficient to satisfy the judgment. The defendants set out in their third plea, several judgments rendered against Jones in his life time, that he died on the 28th of November, 1822, and that administration was granted thereon the 3d day of February, 1823, and that goods and chattels to a small amount have come to their hands to be administered, which are insufficient to satisfy those judgments. To this plea Bond demurred, which demurrer was sustained. A great variety of other proceedings were had in the cause, but from the view the court take of the case, it is unnecessary to recite them. The court, on a special verdict which was rendered in the cause, gave judgment that Bond was entitled to a pro rata portion of the assets that had come to the hands of the administrators, with the judgment creditors mentioned in the third plea, and gave judgment accordingly. To reverse which judgment, an appeal was taken to this court.

The legislature of this state, on the 12th of February, 1823, passed an act entitled “ an act regulating administrations and the descent.of intestates’ estates, and for other purposes,” which act directs the executors or administrators “ of any person dying testate or intestate within this state, who shall not have estate sufficient to pay his or her just debts,” after paying funeral expenses and probate fees, to pay the balance, on the legal demands that then and there be presented, in equal proportion, according to the amount of the several demands, without regard to the nature of said demand, not giving any preference to any debt on account of the instrument of writing on which the same may be found.” The question presented in this case is, whether this act applies to estates, so as to alter the common law disposition of the assets, where the intestate died before its passage ? By the common law, judgments obtained against the intestate before his death are entitled to a preference in payment over other debts. Has this statute altered the law, so as to divest creditors of their right to be paid according to the priority secured to them by the common law ? The language of the statute is only prospective; it applies only to cases of persons dying “testate or intestate,” and not to persons who have theretofore died. It does not appear to have been the intention of the legislature to interfere with rights already vested, but to give a different rule in future. It is also a general rule, that all statutes shall operate prospectively only, and courts never give them a retrospective operation, unless the legislature use such language as to leave no doubt that such was their intention, and enlightened courts have ever disputed the power of the legislature to pass retrospective laws which take away vested rights. Dash v. Van Kleck, 7 Johns. Rep., 477. But, as we are clearly of opinion that the legislature did not intend to apply this act to cases where the intestate died before its passage, we think the circuit court erred in sustaining the demurrer to the defendants’ third plea. As this plea goes to the whole merits of the action, and it appearing from the special verdict that the plea was proved on the trial, it is unnecessary to send this cause back to the circuit court. The judgment is reversed, with costs.

Breese, Cowles, Baker, and T. Reynolds, for appellants.

McRoberts, Young, and J. Reynolds, for appellee.

Judgment reversed.

       Laws of 1823, p. 127.


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    John Ankeny, Appellant, v. James Pierce, Appellee.
    APPEAL FROM JACKSON.
    The execution of a note is not evidence of a settlement of all demands due from one party to the other, anterior to the date of the note.
   Opinion of the Court by

Justice Lockwood.

Pierce sued Ankeny in the Jackson circuit court, on a promissory note. The defendant below pleaded payment, and on the trial of the cause, proved an account for goods sold and delivered previous to the execution of the note.

Whereupon, the plaintiff below moved the court to instruct the jury, “that the execution of the note sued on was evidence of a settlement of all' demands due from plaintiff below to defendant below, up to the date of the note, unless the defendant had shown, by evidence, that the demands were not settled at the execution of the note; ” which instructions the court gave, and the defendant below excepted, and brought the cause into this court by appeal. The only question presented to this court for its decision is, whether the instruction prayed for ought to have been given ? In a case where the only proof consists in the production of a note on the one side, and evidence of an account anterior to the date of the note, on the other side, it is very difficult for the court to lay down with precision any general rule applicable to such cases. The court have not been referred to any adjudged cases, or any principle of law, analogous to such a state of facts, nor have they been able to find any authority on the subject. The court, therefore, in the absence of authority, must decide this question agreeably to the dictates of justice and common sense. A knowledge of the manner in which men generally transact their business, is necessary in arriving at a correct conclusion to the question presented in this case. Experience informs us, that notes are frequently given as the consideration for a particular trade, without any reference to the situation of the accounts between the parties—leaving them to be settled at some future time, or in some particular manner. And notes, also, are given on the settlement of accounts, and for the balance due on such settlement. Are there, then, in the dealings among mankind, sufficient uniformity in relation to the execution of notes, to authorize the court to decide that a legal presumption is thereby raised that all previous demands are released or settled ? The court believe, from their experience and observation, that injustice would too often be done if they should sanction such a general rule.

Cowles, for appellant.

Baker, for appellee.

It is safer to require a party who resists a demand upon the ground that it has been settled or paid, to prove in what manner it was paid. Slight evidence would, doubtless, be sufficient in this case, to warrant a jury in raising a presumption that the account was settled when the note was executed, but without any proof of a settlement of accounts and a balance struck, it is presuming too much to justify the court in deciding “ that the execution of the note was evidence of a settlement of all demands due from plaintiff to defendant.” The judgment must therefore be reversed with costs in this court, and the cause remanded, with directions to the court below, to award a venire de novo,

Judgment reversed.

       A receipt for rent due at one time, affords a presumption that the rent due at an earlier date has been paid. 3 Stark’s Ev., 1090.