text:
    Benjamin Smith et al., plaintiffs in error, v. Simmons Sackett et al., defendants in error.

      Error to Winnebago.

    Where land is bought hy one person, with the money of another, and title made to the former, there is a resulting trust in favor of the latter and his heirs.
    L. M., wishing to purchase a tract of land, borrowed in 1839 a sum of money of B. S., and used it to purchase the land, the title being made to S. S. in trust to secure the loan, and S. S. giving a bond to L. M. and E. M., conditioned to convey them the land on re-payment of the loan with interest in two years. Before the two years had elapsed L. M. died, leaving an infant, his heir. In 1846 S. S. sold the land, and it was again sold, but all the purchasers were chargeable with notice of the interest of the infant. The infant then filed his bill, making all persons interested parties, and praying for an account, and to redeem, and that the land might be mortgaged or sold in order to raise the means of redeeming. The bill stated that the infant had no means of redeeming but through this property. Held, that a demurrer to the bill was improperly sustained; that the Court should order an account to be taken to determine the amount of the incumbrances, and that the money be raised by a sale or mortgage of the premises, or in such other appropriate way as may be most for the interest of the infant, and applied to the extin- . guishment of the encumbrances.
    In a case of this character, a ténder is not necessary before filing the bill.
    The jurisdiction of a Court of Equity to order the sale or mortgage of either the legal or equitable estate of an infant whenever his interest requires it, is indisputable.

      Jaches is not imputable to an infant.
    A person interested in the subject matter of a suit in Equity, refusing to join with the complainant, may be made a defendant, though his interest is with the complainant.
    Bill in Chancery, in the Winnebago Circuit Court, filed May, 1846, by Benjamin Smith, Margaret Smith, his wife, and Levi Moulthrop, plaintiffs in error, against Simmons Sackett, Benjamin Sackett, Erastus Moulthrop, Horace Miller, Gardiner C. Miller, and Hiram Waterman, defendants in error, and heard at the October special term, 1848, before the Hon. Jesse B. Thomas. The defendants below demurred to the bill: the demurrer was sustained, and the bill dismissed. The complainants below sued out their writ of error.
    The bill stated that in 1839 Levi Moulthrop, now deceased, being in possession of a tract of land on which he had made valuable improvements, and desiring to purchase the same at the government sales, sent Erastus Moulthrop to Connecticut to negotiate a loan. The latter proceeded to Connecticut and made arrangements for the loan with Benjamin Sackett, who sent his brother, Simmons Sackett, to attend the sales and take the legal title to the land in his own name, to secure the payment of the loan. The sum advanced,for the purchase of the land, was $523-77 ; but in addition to this sum, the Sacketts were to be reimbursed their expenses. The land was bought, the title taken by Simmons Sackett, and a written contract thereupon entered into between Simmons Sackett, of the one part, and Levi and Erastus Moulthrop, of the other part, by which the latter promised to pay to Benjamin Sackett $650-00 with interest in two years, and to Simmons Sackett $30-00 within the same time, and Simmons Sackett on his part bound himself to convey the land to the Moulthrops on payment of these sums. Subsequently Levi Moulthrop married complainant Margaret, and soon afterwards died, leaving his widow pregnant with complainant Levi, to whom she afterwards gave birth, he being the sole heir of Levi Moulthrop, deceased. The bill also set forth various negotiations between Mrs. George, the mother of Complainant Margaret, acting in behalf of Margaret and her infant son, and the two Sacketts, which it is not necessary to state. The bill also stated that the infant complainant, Levi Moulthrop, had no property except this land, out of which the means of redeeming this land could be raised. The bill prayed for a decree declaring the rights of the complainants ; that an account be taken of the money chargeable on the land; that a reasonable time be allowed to pay it, in order to redeem; that complainant Margaret be authorized to raise the sum by mortgaging the land, selling the timber, or, if necessary, by selling the land; and also prayed for general relief.
    A supplemental bill stated a conveyance subsequent to the filing of the original bill, by S. Sackett to Horace Miller, and by Horace Miller to Gardiner C. Miller and Hiram ' Waterman, and made these persons parties.

      Bitmap, for plaintiffs in error.
    I. The complainants claim that the original transaction between the decedent, Levi Moulthrop, and the Sacketts, was one of loan and mortgage.
    II. Levi Moulthrop, deceased, had a resulting trust in the land.
    1. By means of the loan from Benjamin Sackett, the money advanced by him became Moulthrop’s, before it was invested in the land, and its investment created a resulting trust in the land in his favor, subject only to a lien for the re-payment of the money and interest, by the arrangement of the parties. Page v. Page, 8 N. H. 187. Boyd v. McLean, 1 J. C. R. 582, 591, 594.
    2. The pre-emption right, improvements, and claims of Moulthrop upon the public lands, were a sufficient consideration to raise a resulting trust. Miller v. Davidson, 3 Gilm. 526; Switzer v. Skiles, ib. 532-33, and cases there cited ; Lewin on Trusts, 169. The payment of money is not the only foundation for a resulting trust. Malir v. Malin, 1 Wend. 681. Courts exercise great liberality in favor of resulting trusts, ib. 638.
    3. The claim of Moulthrop to the lands was the main object; the foundation of the whole thing. The obtaining of the land and getting the government title, were auxiliary and accessory. Principóle trahit ad se accessorium. 1 U. S. Annual Dig. 365. Miller v. Davidson, 3 Gilm. 525, 527.
    4. When a contract of mortgage is once made, any subsequent deed or assurance by the mortgagor tending to perfect the title, enures under the mortgage, and not absolutely. Even a fine levied has that effect. Coote on Mortgage, 130, 131,132. The decedent verbally agreed that his right under the pre-emption laws should pass to Simmons Sackett, and his claim was treated in the same way. He and Simmons Sackett went to the land sale and concurred in carrying this agreement into effect. This was the only mode of transferring his title which the case admitted of, and for the purposes of the bill must he considered as an assurance subordinate to the contract of mortgage. The pre-emption and claim merged in the title of Simmons Sackett. Miller v. Davidson, 3 Gilm. 518.
    III. When the question is whether mortgage or not, the Courts always establish the mortgage claim as being most just and beneficial in its operation, unless the circumstances of the ease clearly show the intention of the parties to have been otherwise. Conway v. Alexander, 2 Peters’ Cond. R. 479.
    IV. Simmons Sackett, whether considered as the holder of a mortgage interest, or of land subject to a resulting trust, could not be allowed to deal with the property for his own benefit, or derive any profit from his trust, or subject the lands to any new charge, to impede the redemption. Lewin on Trusts, 288, 289, 290. 1 Story’s Eq. Jur., 317, 318. Miller v. Davidson, 3 Gilm. 527.
    Horace Miller, Gardiner C. Miller, and Waterman, having purchased with full knowledge of the case, cannot be in any better predicament than Simmons Sackett. Possession of complainants was notice to them. Their condition is even worse, for they have, or at least Horace Miller has, been most active in bringing about the fraudulent transfer.
    V. Horace Miller, Gardiner C. Miller and Waterman are liable to account for the rents and profits which they have derived from the land.
    VI. If the defendants contend that the transaction between decedent and Simmons Sackett was one of contract for sale, and not in the nature of a mortgage, the complainants still have equity.
    Whether the purchaser must in all cases pay the purchase money under a contract of sale, before filing a bill for conveyance, is a vexed question, about which the decisions have not been uniform. It must doubtless be done, unless there be special circumstances to excuse it. Doyle v. Teas, 4 Scam. 202, upon the whole, is not inconsistent with this position, although in that case tender should have been made. A fixed rule on this point would deprive Courts of Equity of some of their most beneficial powers, and open wide the door to all manner of fraudulent contrivances to prevent the purchaser from availing himself of his rights. 2 Story’s Eq. Jur. 46, § 742.
    Equity, in case of contract for sale and conveyance of lands, regards the true object of the parties, and treats them as mutual trustees; the purchaser, of the money, and the vendor, of the land.. A decree for a specific performance is a matter of course, unless there has been gross laches on the part of the purchaser. 2 Story’s Eq. Jur. 81,6 771 : 83, 6 776. and note; 85, § 776.
    There has been no negligence on the part of the complain™ ants. They did not lie by, to speculate on events, as was the conduct of the complainant in Doyle v. Teas, 4 Scam. 267; but they kept possession of the property, and did all in their power to raise and pay the money due, and always manifested an intention to insist on their claim. The heir of the decedent, on whom the equitable fee descended, being an infant of tender years, could not exercise any control in the matter.

      Marsh and Wight, for defendants in error.
    Although the bill in this case is anomalous, not only presenting a case not usually found in proceedings in Courts of Equity, but insisting upon such relief as no Court has ever extended to any party, and the complainants’ counsel has not seen fit to specify in what category .it belongs, yet the defendants have a right to insist that it shall be considered and adjudged by some known and settled principles which Courts of Equity have adopted.
    Whether, therefore, the complainants are seeking to enforce a specific performance, or to establish a resulting trust, or to claim the benefits of the relation of mortgagor and mortgagee, we insist that, in either ease, they have not shown themselves entitled to the relief claimed.
    It is a principle well defined by the elementary writers, and enforced by all Courts, that when a party comes into a Court of Equity to claim its special aid, he must show that he' is in a condition to perform his own part of the contract, and that he has shown himself ready, desirous, prompt, and eager to perform. Courts of Equity have regard to time, so far as it respects the good faith and diligence of the parties. 2 Story’s Eq. Jur. 6-7, § 776. It is not sufficient alone to show the adverse party in default, but the party complaining must show that he is not liable to the same imputation, or in other words, the complainant must come into Court with clean hands. A Court of Equity will only compel a party to act where it is his duty to act without their interference. Doyle v. Teas, 4 Scam. 265-6.
    But whatever relief the proper parties might under other circumstances have had, or might even now have, under the contract set forth in the bill, we insist that the complainants have entirely misconceived'their rights, in any event. Sackett never made any contract at all with Levi Moulthrop. Whatever contract he made in the premises he made with Levi and Erastus Moulthrop; and if any rights have accrued to any person and now exist under that contract, they enure equally and jointly to the benefit of E. Moulthrop; and he should be complainant here instead of defendant.
    The counsel for the plaintiffs has introduced a large number of authorities to demonstrate the incidents of, and the principles established by, Courts of Equity, growing out.of resulting trusts.
    To the doctrine established by these cases, we make no objection. But is this a resulting trust ? Has it any of the elements, any of the characteristics of a resulting trust ? A resulting trust is where one man purchases land or property in his own name (taking the legal title) with the money or property of another, furnished for that purpose.
    In such cases the Courts of Equity, in view of the stern rule of the Statute of Frauds, and in absence of other than parol evidence, granted relief, and established the doctrine of resulting trusts. Botsford v. Burr, 2 J. C. R. 404; Steere v. Steere. 1 do. 1.
    But here the Court is called upon to create a resulting trust, where no money or other consideration was ever paid by the cestui que trust; where the property of which the trustee acquired the title by his own money, was government land and purchased by him. of the government, at public land sale, Moulthrop having no interest, and, as the bill shows, having no power to acquire an interest, in it; and moreover, where the parties themselves have by their written contract, declared whatever there is of a trust in this case.
    We say, then, look to the bond. Whatever rights the parties have under their contract, let this Court enforce; the defendants will be content.
    It is however insisted, on the part of the defendants, that not only from the terms of the original contract, but from every incident of the subsequent negotiations, the only le-’ gitimate inference is, that the parties then, and always, have understood their contract to be no more or less than an agreement to sell.
    If this view of the case be correct, then it follows that the time for fulfilling the contract having so long since expired, the plaintiffs having slept upon their rights, and been guilty of such gross negligence, they are not entitled to any relef, and much less, to the aid of this Court to restore to them their lost rights, whatever they may have been.
    A Court of Equity will not vary the terms of a contract, or the intentions of the parties, so as to give one party the benefit of an extension in point of time, for which he has not stipulated; nor to restore to a party a privilege dependent upon payment of money at a stated time, where that privilege is lost by failure to pay. Robinson v. Cropsey, 2 Edw. Ch. R. 146-8; Doyle v. Teas, 4 Scam. 225.
    But as a dernier resort, it is insisted on the part of the complainant, that if this case is unlike every thing else known in Equity proceedings, surely it bears some resemblance to the case of mortgagor and mortgagee; and numerous authorities have been cited, not only to show that the contract in this case was a mortgage, but that the complainant can have some relief. We do not dispute the doctrine of “once a mortgage, always a mortgage;” nor but that Courts of Equity have gone very far, to give to contracts the effect of a mortgage, even where the parties did not so understand their own agreement; especially where great injustice would otherwise result. But in no case cited does it appear, that the grantor claimed to be a mortgagor of property to which he neither had nor could have any title, as in this case.
    Those cases are all based upon the making of an absolute conveyance, with a simultaneous agreement, on the part of the grantee, to re-convey on certain conditions.
    But even in such cases, it is not every agreement to re-sell that the Courts will determine to be a mortgage. And wherever it is manifest that the parties intended to make a defeasible sale, and not a mere mortgage, a Court of Equity will leave the parties to the consequences of their intentions. Robinson v. Cropsey, 2 Edw. Ch. R. 146.
    But suppose the relation of mortgagor and mortgagee to exist, wherein have the complainants shown themselves entitled to the relief asked for ? They must show a “prior tender of the money, and a refusal to accept it,” and an offer “in express terms, to pay the amount due, with costs.” Beekman v. Frost, 18 Johns. 559, 570.
    It may be unfortunate for the. complainants that they are poor, as is alleged in their bill; but poverty is not a good reason why this Courffshould take the defendants’ property, and place it beyond their reach, for the special benefit of the complainants. Goldsmith v. Osborne, 1 Edw. Ch. R. 562.
    Nor can it how avail the plaintiffs to insist upon some other relief, if they have asked for too much, or asked amiss. For relief, inconsistent with the specific relief prayed for, will not be granted under the general prayer. Beekman v. Frost, 18 Johns. 562.
    In further illustration of the questions presented in this case, vide 2 Johns. Ch. R. 405; 4 do. 75, 140; 5 do. 1; 6 Paige, 480; 2 Story’s Rep. 620.

      Bitmap, in reply.
    The Courts on a bill to redeem, always give a day for the payment of the money, as is shown by the rule that if the day fixed for payment passes v/ithout payment, it is equivalent to a foreclosure. The cases quoted by the counsel for the defendant, show the giving of a day of payment. 18 Johns. 561.

      Beekman v. Frost, 18 Johns. 559, 570, does not require a previous tender. In Goldsmith v. Osborne, 1 Edw. 560, in which the Court say that the complainant’s poverty cannot excuse him. from offering to pay the money due in order to have relief, the Court assign as a reason, that he can sell his equity of redemption, without the interference of a Court of Chancery.- In the case at bar, this cannot be done, because the equitable fee has descended upon an infant; and we ask the Court to do for him, what an adult might do for himself.
   The Opinion of the Court was delivered by

Caton, J.

By the application of a few well understood rules of Chancery Law, no difficulty can be experienced in determining the sufficiency of the case presented by the original and amended bills. If this were to be considered purely as a bill to redeem from an equitable mortgage, as such, it would be manifestly insufficient; for it is, under ordinary circumstances, essential to such a bill that it contain an offer, clearly expressed, to pay the redemption money. 18 Johns. 560, 570. The case made here, however, presents itself to the Court upon other and broader grounds. This is an application to the Court, on behalf of an infant, for an order to dispose of a part of the infant’s estate for the purpose of removing an incumbrance upon it; and that such estate may bring its full- value in the market, or may be made available for the objects proposed without a sacrifice, it becomes necessary that the Court should determine the nature and extent of the infant’s interest in the premises. Notwithstanding the bill is voluminous, all that is really essential to a full understanding of the equities as presented by the bill, so far as is necessary for the decision of the case, can be stated in few words.

It appears that in 1839, Levi Moulthrop was the owner of valuable improvements on several tracts of public land, which are now the premises in controversy, which he was desirous of purchasing of the government; and in order to procure the necessary funds for that purpose, he sent the defendant Erastus Moulthrop to Connecticut,, who negotiated a loan with the defendant Benjamin Sackett, for the sum of $530-00, on a credit of two years. It was a part of this arrangement that Simmons Sackett should come from Ohio to Illinois to see to the investing and security of the money, and that his expenses and a reasonable compensation for his services should be considered as a part of the loan, and secured upon the land. In pursuance of that arrangement, the land was purchased by Simmons Sackett, and the title taken in his own name in trust for the purpose of securing the loan, and he executed a bond to Levi and Erastus Moulthrop, conditioned for the conveyance of the premises to them upon the payment of $630-00 with interest in two years. No very clear reason is given in the bill, showing why the name of Erastus was put in the bond with that of Levi, and whether the averments of'the bill are sufficient to show that the whole transaction was for the benefit of Levi, it is not necessary now to determine. Within a year after this, Levi Moulthrop died, leaving the complainant Margaret his widow, and shortly after his death was born the complainant Levi Moulthrop, who is his only heir at law. The bond for a deed was in the possession of Levi Moulthrop at the time of his death, of which Erastus soon after improperly obtained the possession, and afterwards delivered it up to Benjamin Sackett. A long history of negotiations is related in the bill, which took place between the friends of the infant and the Sacketts after the death of Levi Moulthrop, which we do not deem it necessary to notice. Horace Miller, in 1846, purchased and received a conveyance of the lands from Simmons Sackett, and afterwards conveyed to Gardiner C. Miller and Hiram Waterman, all of"whom were chargeable with notice of the infant’s interest. The statements of the bill are admitted to be true by the demurrer, which was sustained by the Circuit Court, and the bill dismissed.

That the infant, Levi Moulthrop, has an equitable interest in these lands, if the statements of this bill are true, does not admit of controversy. The money with which the land was purchased, was loaned to his ancestor by Benjamin Sackett, and the title vested in Simmons Sackett to secure the re-payment of the loan. The money of Levi Moulthrop purchased the land, and the law will raise a resulting trust in his favor. So far as the rights of the infant in the land are concerned, this case is identical in principle, with those of Boyd v. McLean, 1 Johns. Ch. R. 582, and Page v. Page, 8 New Hamp. 187. Where the facts are admitted, as they are in this case, to enter upon a discussion, or to refer further to authorities to prove that the law will raise a resulting trust in favor of one to whom the loan was made, and for whom the land was purchased, would be a work of supererogation. If it were important to determine now the exact extent of the complainant’s rights, it might be necessary to refer more particularly to the precise statements of the bill. For the present purpose it is sufficient that the infant has rights there, which it is the duty of the Court to protect. That these lands were incumbered for the re-payment of the money advanced to procure the title from the government, cannot be denied; but when that is paid, neither the Sacketts, nor the Millers, nor Waterman, have any further interest in the land. Nor, as the case stands now, can the infant be charged with those extraordinary expenses that have been incurred in the course of the various negotiations, which have transpired since the death of his father, and which have swelled the amount now claimed to near $120(M)0. Neither the mother of the infant, nor Mrs. George, nor any other person, had a right so to inter-meddle with the infant’s interest as to create incumbrances upon it. No guardian seems ever to have been appointed for the infant, nor would a guardian have been allowed to have embarrassed or trifled.with the infant’s estate, without the express order of the Court. The Court of Equity is the general guardian of all infants within its jurisdiction, and it is one of its most sacred duties to watch with a vigilant eye, and see that their rights and interests are not trifled away or sacrificed, and that they are not made the prey of either their own kindred or strangers. They are incapable of protecting their own interests, and hence cannot be guilty of •ilaches. Davis v. Harkness, 1 Gilm. 178.

Whether the complainant Margaret, after she attained her majority, further incumbered whatever interest she has as the widow of Levi Moulthrop, deceased, it is unnecessary for us now to inquire.

The jurisdiction of the Court of Chancery to order the sale of the whole, or a portion of the estate of an infant, or to order it to be incumbered by mortgage whenever the interest of the infant demands it, will not be denied, whether that interest be of a legal or an equitable nature. Such is one of the objects of this suit, and it Certainly seems that the case made by the bill show's a strong necessity for the exercise of that power. As I have already shown, the infant has an equitable interest in this land of considerable value, for the property is averred to be worth seme three thousand dollars. The interest of the infant manifestly requires that the lien or incumbrance upon the estate should be discharged. The bill shows that the infant has no property or means out of which the necessary funds can be raised to discharge this incumbrance, except the property itself. The very statement of the case demonstrates the necessity of the interposition of the Court. But before the Court will order a sale of the infant’s interest, it must ascertain that he has an interest there, and also the nature, character and extent of that interest. This is necessary for the double purpose of securing the full value of the portion sold, and to see that it is not infringing upon the rights of others. Hence the necessity of bringing all parties who appear to be interested either legally or equitably in the estate before the Court, that they may assert and defend their rights. But it is objected that as Erastus Moulthrop’s interest appears to be with the complainants rather than against them, he should have been joined with the complainants instead of being made a defendant. But this is not so. If he did not choose to unite with the complainants, it is hardly necessary to say that it was the proper course to make him a defendant. He was then properly before the Court, and bound to lock after his interests, whatever they were. All parties being before the Court, and a case being made which requires its interposition in order to protect the rights of the infant, in the exercise of its proper jurisdiction for that purpose, it must determine what w'as the nature of the original transaction.'

This, as we have before seen, was in the nature of a mortgage,'or security for* a loan of money, and as a necessary incident, the Court must determine the amount of the incumbrance. This, too, it has the means of doing properly, for all the parties are before it who will be interested in taking the account. This is indispensably necessary, also, in order to enable the Court to determine how much money shall be raised out of the infant’s estate. When this is done, the Court will, as a- matter of course, direct the proper ap- , plication of the fund thus raised, in extinguishment of the lien. Thus will the Court, having properly acquired jurisdiction, not only of the subject matter, but of all the parties interested, do- complete justice between all. It is for the very purpose of thus doing ample justice, that Courts of Equity require all parties interested to be brought before them. This very case shows the propriety of the rule, that when the Court once acquires jurisdiction of a cause, it will retain it so as to do complete justice to all interested. It would be unreasonable and vexatious for the Court now to say, that it will ascertain and determine the rights of the parties, and will order the necessary funds to be raised to discharge the lien, and then stop short without directing the proper application of the funds. Should the Court, with all the means before it of closing the whole affair at once, with justice to all, refuse to settle it in this proceeding, and require another bill to be filed after the complainants are able to make a more formal offer to redeem ? Such a proceeding would be equally detrimental to both parties, and in manifest violation of one of the plainest rules of Equity. Of what benefit could it be to the defendants to be brought in to defend another suit, when all the questions in controversy had been already settled in this ? The very statement of the proposition shows its impropriety. The misapprehension consists in supposing that the primary object of the bill is to redeem. That is not so. The first and great object of the bill is to invoke the aid of the Court to raise a fund out of the infant’s estate to redeem with, in order to do which properly, it is indispensable to settle the rights of the parties, and when this is done, it follows as an incident, that the fund thus raised shall be applied, and the incumbrance discharged.

The view which wre take of the case, shows that the authorities referred to, proving that' a tender must be made and the money brought into Court, when it is called upon to enforce a specific performance of an agreement for the sale- of land, do not applj\ Were the incidental although ultimate object to-be accomplished, the specific performance of such an agreement, instead of the satisfaction and removal of an incumbrance, justice would seem to require the application of the same rule.

Without this, there would be a wrong without a remedj. We should be loth to admit that the power of the Court is inadequate to protect the rights of the infant, and yet such would be the case were we to hold that the Court cannot grant relief in this case. The Court must do for the infant, all that an adult could do for himself, without imputing to him neglect for not having acted when he was incapable of acting. If the defendants were not satisfied with the procrastination, they should have brought the infant before the Court, and asked its interference. The kind of relief here indicated is asked for in the prayer of the bill, but whether the Court will order the money to be raised by a sale or a mortgage of the estate, or in some other appropriate way, the Court will determine at the proper time, as may seem most for the interest of the infant. We have no doubt but a proper case for relief is substantially made out by the bill, and that the demurrer was improperly sustained.

The decree of the Circuit Court is reversed with costs, and the suit remanded, with leave to the defendants to withdraw their demurrer and answer to the merits of the bill as they shall be advised.

Decree reversed.


source: Caselaw Access Project

author: Trumbull, J.

license: Public Domain

text:
      The Board of Trustees of the Illinois and Michigan Canal, appellants, v. Philo A. Haven and Orlando H. Haven, appellees.

      Appeal from Will.

    The Act of Congress, approved March 30th, 1822, authorizing the State of Illinois to survey and mark, through the public lands of the United States, the route of the Canal connecting the Illinois River with the southern bend of Lake Michigan, and reserving forever from any sale to be made by the United States, and vesting in said State for a Canal, ninety feet on each side of said Canal, does not apply to the sixteenth sections. These sections were not public lands at the passage of this Act, having been granted to the State for the use of schools under the Congressional Ordinance of April 18th, ISIS, and the Ordinance adopted by the Convention, August 26th, 1818, accepting the propositions of Congress.
    In a grant by the United States, of land bordering on a stream not navigable, it appeared by the minutes in the' Surveyor’s Office that the stream was meandered, hut there was no marked line upon the plat by which the grant was made, limiting the grant to the margin of the stream : Held, that the grantee took to the centre thread of the stream. A meandered line run for the purpose of determining the quantity of land in the fraction is not a boundary.
    The grantee of land bordering on a stream not navigable takes to the centre of the stream unless there is an express reservation confining him to the margin, and is entitled to recover damages against a party who, to his injury, diverts the water passing over his land from its natural channel.
    This case was submitted to the Circuit Court of Will county, at the October term, 1848, the Hon. Jesse B. Thomas presiding, upon an agreed statement of facts. The appellees, who were the plaintiffs below, claimed damages of the appellants, defendants below, for injury to their mill, resulting from a diversion by said defendants of the water of the Des Plaines River, from the mill of said plaintiffs. The Circuit Court decided, upon the agreed case submitted to it, that the plaintiffs were entitled to damages, the amount to be determined in the manner pointed out in said agreement. Each party to the agreement stipulated for the right of appeal, and the defendants below appealed from the decision of the Circuit Court. The agreed case is set forth in the Opinion of the Court.

      E. W. Tracey for the appellants,
    contended that the condition of the grant of Canal lands by Act of Congress of 1822, was subject to the control of the General Government. The Act of 1827 was an extension of the time of compliance with the conditions of the grant, and was a waiver of the condition of the Act of 1822. The old grant stood unrepealed, and by the second grant became absolute. 2 U. S. Dig. 472, § 38.
    The plaintiffs below purchased with full knowledge of these Acts, and at their own peril. Thfey cannot now come in and resuscitate an obligation fully discharged, and a condition fully waived. The grant itself is no longer voidable by the United States or by the State. The State held in trust and could not sell in contravention of that trust.
    It is contended by the appellees that there being no express reservation, the rights of the grantee extend to the thread of the stream. It does not follow, as a matter of course that every purchase upon a stream extends to the centre of the stream. The question is to be determined on a construction of the grant. Land does not pass as appurtenant to land. All maps, plats, &c. are to be taken in connection with the grant to aid in its construction.
    The counsel cited 2 Smith’s Leading Cases, 193, and read and commented upon the principles there laid down. He also cited Chiles v. Starr, 4 Hill’s (N. Y.) R. 369, in which the authorities are fully quoted; also Hardin, 259.
    He also contended that, by the grant and plats of record, the plaintiffs were shut off by the meanders of the stream from asserting their claims, and quoted and commented upon the case of Middleton v. Pritchard, 3 Scam. 510. If me an derings are laid down upon the plat, the plat furnishes evidences to aid in the construction of the grant.

      I. M. Wilson and J. H. Collins, for the appellees.
    The plaintiffs, being owners of the land on both sides of the Des Plaines River, own the bed of the river and the exclusive right to use the water in the stream as it is accustomed to run in its natural channel.

      Grants of land upon streams above tide water carry to the grantee the exclusive right to the centre of the stream. Neither the State nor an individual has a right to divert the stream. It would require an express exception in the grant, or immemorial usage, to limit the title of the owner to the edge of the river. 3 Kent’s Com. 427.
    If the same person be owner of the land on both sides of the river he owns the whole river to the extent of the length of his lands upon it. Ib. 428. This doctrine is sustained by all the authorities in England and America, and ably illustrated in the following cases. Ex parte Jennings, 6 Cowen, 527 and note; People v. Platt, 17 Johns. 209; Hooker v. Cummings,20 do. 90; The People v. Canal Appraisers, 13 Wend. 371; Commissioners Canal Fund v. Kempshall, 26 do. 404.
    The fact that the stream is meandered does not alter the rule of law as above laid down. This identical question was decided in the Supreme Court of Ohio in the case of Goort v. Chambers, Ohio Cond. R. 643. In the case of Middleton v. Pritchard, 3 Scam. 510, the Supreme Court of this State have decided this question, and reversed the decision of the Circuit Court upon the express ground that it refused to instruct the jury that, in the case of land upon a stream meandered, the ownerofthe land owned to the centre of the stream ; and the Court say (p. 522) “the meandering is for the purpose of ascertaining the quantity of the land, and cannot control. It is sold more or less.”
    The defence is, that by Act of Congress, March 36th, 1822,. ninety feet on each side of the Canal was granted to the State of Illinois, under whom defendants claim. This position can only affect the lots on the west side of the river.
    The answer is, the Act became inoperative and the title revested in the United States, upon the failure of the State to perform the conditions annexed to the grant. No entry is necessary to revest, on failure to perform condition subsequent, unless there is an actual possession. No entry is necessary by the General Government in order to repossess itself of land which reverts, by the terms of the grant, upon the failure of the grantee to perform a condition. Kennedy v. McCartney, 4 Porter (Ala.) 141; 3 U. S. Dig. 309.
    But the government did enter by her agents and survey the same, and in 1835 sold a portion, without reservation, under a proclamation of the President.
    The Act of .'March 2d, 1827, grants alternate sections, including same land in,part. None of the conditions in the former Act having been complied with, the Act of 1827 does not recognize the existence of the former Act. It is not amendatory to it, and does not extend the time for completing the Canal under the Act of 1822, but limits a time for the completion of a Canal independent of that Act.
    But the land was granted to the State for the use of schools by the Ordinance of 1818 (Rev. Stat. p. 27,-§ 1) and ■cannot be affected by a subsequent grant of the same lands, even admitting the Actmf 1822 to -be in force.
    This grant was for a valuable consideration, as our Supreme Court decided in the case of Bradley v. Case, 3 Scam. 585.

      JT. H. Purple, for the appellants,
    in conclusion, contended that the maps referred to in the agreed statement show the surveys to have been made by the Government in 1822 along the borders of the stream. There is no difficulty about the law on this subject"; the only question is one of construction, as to whether the grant is to the stream by its meanderings, or to the middle thread. The view we contend for is not in conflict with the case of Middleton v. Pritchard, 3 Scam. 510. The Court there say that there was nothing to show the meanderings-: here we have a plat to show them, and beyond these, the grantee cannot go.
    The State has divided the school section into lots and sold them by the plat and not otherwise.
    In regard to the condition in the Act of Congress of 1822, as matter of mere law it may be true that the Government, being a sovereignty, need not enter for condition broken ; but in this case Congress, by its Act of 1827, designed, not to repeal its original grant, but to carry out its original intention

      The counsel also referred to several Acts of the Legislature passed prior to the original sale of the lots in question by the State, and giving the power to the Canal Commissioners to take and use water, &c. from the land of the State, and contended that the rights of subsequent purchasers from the State were to be construed with reference to these Acts.
   The Opinion of the Court was delivered by

Trumbull, J.

This case comes before us on appeal from the decision of the Circuit Court upon the following agreement ;

“The plaintiffs and defendants in-this cause agree upon the following statement of facts to be submitted to the Court for its decision thereon :

The plat hereunto annexed, No. 1, is a plat of section sixteen, in township thirty five north, of range ten east of the third principal meridian, and also the plat of section nine, in. the same township, being true plats of said sections as returned by the Surveyor General of the United States, and deposited in the Land Office of Chicago, on which said plat is represented the Des Plaines River, as it runs through said sections ; and it is admitted that said Des Plaines River is meandered through the entire length of said sections, as appears by the minutes of said survey, in. the said Surveyor’s Office, a copy of which minutes is also attached, marked, 2, and delineated on said maps.

It is also admitted that said section sixteen is one of the sections granted by Congress to the State of Illinois, for the use of the inhabitants of the township in which the same is situated for the use of schools,.and accepted by an Ordinance of the 26th August, 1818, accepting certain propositions made by Congress, April 18, 1818.

It is also admitted that the plat hereto annexed, marked 3, is a true copy of the plat of said section sixteen, as duly laid out and sub-divided, and certified an.d acknowleged, and recorded according to law, and as set forth on said plat; and a plat of said River, and Canal with the dams, basins, and locks, as made and constructed from Lockport, four and a half miles above the said plaintiffs, to and below the said plaintiffs’ mills, is hereto annexed, marked No. 4.

It is also admitted that at a sale of lots in said section sixteen, in October 1834, by and1- under] the authority of the State, in pursuance of the statute in such case made and provided, John H. Kinzie purchased lots one and two, in block fifty seven, and that Patents issued to John H. Kinzie for the same in 1835, conveying title in fee simple, as by law directed, and that said John H. Kinzie conveyed to Martin H. Demmond and John M. Wilson his title as above stated, and that Martin H. Demmond and John M. Wilson subsequently conveyed the same to the plaintiffs herein. Lots one and four, in block fifty six, were sold at the sale of said section sixteen in 1834, were afterwards purchased by the plaintiffs for taxes, and a deed bearing date,-obtained of the sheriff, and they have until this time remained in undisputed possession of said lots, except so much of them as has-been appropriated by the Canal.

It is admitted that the Illinois and Michigan Canal was commenced in 1836, and that portions of the Canal through said sections were put under contract in 1838, and the guard lock on section nine near the dam across said River, first above said section sixteen, was commenced in 1840, by digging the pit in the spring and a part of the stone laid in the fall. The stone for the same was quarried and dressed during the spring and summer of the same year. The stone for the said dam on section nine (which is a cement and cut-stone dam,) was commenced being quarried and cut the same season, and the dam was commenced the following season, in the spring, and finished in the fall of 1841. The contracts for building said dam and locks were made in 1839, and it was generally understood as early as 1839, that said lock and dam were to be built.

It is agreed that in the spring of 1839, the plaintiffs commenced building a mill on said lot one in block fifty seven, on section sixteen, and also a dam cross the Des Plaines River, connecting said lot one in block fifty seven on the east bank of said River with the division line between lots one and four in block fifty six, on the west bank of said River, and completed said dam and saw mill so as to use the same in the following October or November. Soon thereafter, the Commissioners of the Illinois and Michigan Canal, in constructing said Canal, removed the west end of said dam so that it became connected with the east bank of tl e Canal, which bank encroached upon the natural channel of the river about ten feet.

The head and fall at said plaintiffs’ dam, used by them in propelling their machinery, is six feet, leaving a fall on said lots one and kyo in block fifty seven of about six inches more. In the year 1842, the plaintiffs also built a grist mill on said lot two in block fifty seven, also added to the saw mill a lath mill, in 1843, and built a dwelling house on said lot one in block fifty seven, in 184-6, and also a machine shop on said lot one in block fifty seven, in 1847. Said mills and buildings have been used by the plaintiffs for the use and purposes for which they were built, from the time they were built as aforesaid till the 20th day of April, 1848; the water in said River being at times insufficient for all said machinery. On the 20th of April, 1848, the defendants diverted, or caused to be diverted into the Canal for the use of said Canal from the natural channel of the River, the whole or principal part of the waters of said River, by turning the same from the basin made in said River by means of the dam on section nine, being a Canal section, and about half a mile above the dam of said plaintiffs, so that the plain-' tiffs are wholly deprived of the use of the water at their said mills, and have not since been able to run their machinery. From the time of putting this portion of the Canal under contract in 1838, and up to the year 1843 there had been no change in the original plan of supplying the Canal with •water from Lake Michigan by the deep cut as originally contemplated, and all contracts let previous to 1843, and all the arrangements of said Canal were made notoriously upon the plan aforesaid, and with a view to supply the Canal from Lake Michigan.

It is also admitted that the Des Plaines River is not navigable ill fact, although a portion of it is declared to be so by Act of the Legislature.

The work upon the Canal commenced being suspended in 1841, and was entirely suspended from 1842 to 1845.

The question of law arising from this state of facts is, whether the plaintiffs are entitled to compensation for the injury and damages they have sustained in consequence of the diversion of the water of the Des Plaines River aforesaid, into the Canal as aforesaid.

And it is stipulated and agreed, that whichever way the Judge decides said question, either party may have thirty days from and after notice of said decision to take an appeal therefrom, or bring a writ of error to the Supreme Court.

If the said decision shall be made in favor of the plaintiffs by the Circuit Court, and the defendants do not appeal, or bring a writ of error, within the time aforesaid, or if, upon an appeal the Supreme Court shall decide in favor of the" plaintiffs’ right to recover their damages as aforesaid, then appraisers shall be appointed by the Judge of the said Circuit Court to appraise the damages under and in pursuance of the 9th section of the Act of March 2d, 1837, each party reserving the right to make objections to the report of said appraisers before the Circuit Court, and to appeal from the decision or order of the Circuit Court upon such appraisal as provided for in the said Act.”

The Circuit Court decided that the appellees were"entitled to damages, which decision is now assigned for error.

It appears from map number three, that lots one and two in block fifty seven lie immediately upon the east bank of the Des Plaines River, and that lots one and four in block fifty six are situated upon the west side of said River, from which they are separated by a street. Map two shows that the whole of lot four, and nearly all of lot one in block fifty six, as well as the street between said lots and the River, and several feet of the River, are embraced by the Canal itself; so that one side of the River, including a portion of the dam of the appellees, is now occupied by the Canal, and upon the opposite side lie lots one and two in block fifty seven.

The general rule, that rivers no-t navigable belong to the owners of the adjoining land, and that, when the opposite banks belong to different individuals, each holds to the thread or middle of the stream, is not disputed, but then it is insisted that the appellees have no such right in this case, for two reasons :

It is firstijcontended, that by an Act of Congress, approved March 30, 1822, the State of Illinois was authorized to survey and mark through the public lands of the United States the route of the Canal connecting the Illinois River with the southern bend of Lake Michigan, and ninety feet on each side of said Canal was forever reserved from any sale to be made by the United States, and vested in said State for a canal; wherefore it is said that the appellees are deprived of any right which they might otherwise have to any water or land within ninety feet of said Canal. It is to be observed, that a certain time was provided by the Act of Congress within which the State was to commence and complete said Canal, or, upon failure to do so, it was declared that the reservation and grant made by said Act should be void and of none effect. Without stopping to inquire whether the right of way secured by the Act of Congress was forfeited, so as to revest ipso facto in the government, upon failure of the State to commence and complete the Canal within the time limited by tire Act, or whether, as is contended, the conditions of the Act of 1822 were waived, and the time for commencing and completing the Canal extended by an Act of Congress passed March 2, 1827, it will be sufficient to show that neither of said Acts of Congress can have any bearing upon the rights of the appellees, admitting even that they are of the character, and contain all that is contended for by the appellants.

The lots of the appellees are situate on section sixteen, which was granted to the State for the use of schools, prior to the passage of the Act of 1822. It was not, therefore, public land at the passage of the Act, and consequently no part of it could at that time have been reserved from sale by the United States.

The various Acts of the Legislature of Illinois, reserving a right of way for the Canal, and authorizing the Canal Commissioners to enter upon and use any lands, water, or materials necessary in the construction, have all been examined, but are not referred to in detail, because all of said Acts, passed prior to the sale of section sixteen, had reference to canal lands, and whenever any other lands, water, or materials than those appropriated to the Canal have been authorized to be taken, it has only been upon making compensation.

It is next insisted that the United States, in granting the school section to the State, did not include in the grant the bed of the stream running through it, but that said stream, the Des Plaines River, was meandered through said section, and a plat thereof returned to the Surveyor General’s Office, showing that the River was not included in the survey; and while the appellants admit that a grant of land bounded by a stream not navigable, passes the property to the thread of the stream, yet it is insisted that the owner has the right to restrict his grant either to the edge of the water, or to high or low water mark. Admit that the owner may so restrict his grant, of which there can be no question, when the intention is clear and manifest, and still the admission cannot avail the appellants, because there is nothing in the record to show that the United States intended to limit their grant so as to exclude the River. Neither the plats filed in the Land or Surveyor General’s. Office, show any lines marking the courses and distances along the margin of the River, as a boundary of the adjoining land.

The agreed case states as follows: “It is admitted that said Des Plaines River is meandered through the entire length of said sections, as appears by the minutes of said survey, in said Surveyor’s Office, a copy of which minutes is also attached, marked 2, and delineated on said maps.” We do not understand this language to imply that the meandered line was marked upon the maps in the Land and Surveyor’s Offices, but that it would appear by the minutes, not maps, that said River was meandered, a copy of which minutes is also attached and delineated on said maps, not as they appear in said Offices*;, but as they are made exhibits, which, however, is an error in point of fact, as there are no distinctions of said meandered lines upon the maps. As there was, therefore, no marked line upon the plat by which the grant was made, defining and limiting the land granted to the margin of the stream, the whole argument founded upon such a supposed state of facts fails.

That a meandered line, which is run for the purpose of ascertaining the quantity of land in the fraction, is not a boundary, has been settled by a former decision of this Court, in the case of Middleton v. Pritchard, 3 Scam. 510.

In that case the Court say : “It appears the Surveyor of the Government traced’the courses and distances along the margin of the slough, next the main land, in order to estimate the quantity of land in the fraction; and which estimate did not include the locus in quo. But the plats in the Land Office, and Surveyor General’s Office, have no line marking their courses and distances as a boundary.” Nei- . ther have the plats referred to in this case.

No other points have heen made for a reversal of the judgment of the Circuit Court, except the suggestion that there is nothing in the record to show that lots one and two in block fifty seven border upon the River. This is a misapprehension. Map No. 3 shows that said lots do lie upon the River, and the right of the appellees to the water of the River opposite their lots to the middle of the stream being established, it follows that they are entitled to damages for a diversion of the water from its natural flow along the bed of said stream.

What the amount of their damages will be, or whether, having a right to only one-half the stream, the appellees can so use it, the appellants being entitled to the other half, as to make it available for running the machinery which they have put up on said lots one and two, are questions not now before us. They would be entitled to at least nominal damages, even if no water power* could be obtained from the River upon said lots.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


text:
    Daniel M. Robertson et al., plaintiffs in error, v. The County Commissioners of Marshall County, defendants in error.
    ■ Error to Marshall.

    In all actions on official bonds for the use of any person, the person for whose use the action is to be commenced, must, before he institutes suit, file security for costs, whether the action be commenced in the Circuit or Probate Court.
    An, action was commenced in the Probate Court upon an official bond, but no security for costs was filed by the person for whose use it was brought. It did not appear that any motion to dismiss the suit was made by the opposite party in that Court: Held, that the party, by omitting to make the motion in that Court, waived his right to do so when the case was taken into the Circuit Court.
    Probate Justices of the Peace have jurisdiction of suits upon official bonds.
    In actions upon official bonds of constables, for failure to return an execution within the time required by law, the measure of damages is the amount of the execution with interest from the date of the judgment on which it issued, notwithstanding the defendant in execution was wholly insolvent from the time of its issue to that of its return.
    This suit was originally broughtbefore the Probate Justice of the Peace of Marshall county by the present defendants in error for the use of Cochran & Perry, on the official bond, as a constable, of Robertson, one of the plaintiffs in error, for failing to return an execution in his hands for collection, within the time prescribed by law. A judgment was rendered against him and his-sureties for the penalty of the bond, $1000, but execution was to issue only for the- sum of $51-92 and costs. An appeal was taken to the Circuit Court of that county.
    Upon the trial of the cause in the latter Court, at the October term, 1847, the Hon. John D. Catón presiding, the defendants entered a motion to dismiss the suit for want of security for costs, which motion was overruled by the Court.
    The plaintiffs below then offered a certified copy of the official bond in evidence, to which the defendants by their counsel objected, but the objection was overruled, and the copy was read in evidence. They next proved the recovery of a judgment before a justice of the peace in favor of Cochran & Perry against John C. Gore for $46-21, on the 19th of August, 1845, and the issuing and delivery of an execution upon said judgment, on the same day. The execution was levied upon some grain, and, by direction of the plaintiffs therein, it was returned and a second execution was issued. This was returned by the sheriff, January 8, 1846, by plaintiffs’ direction, and a third execution was issued, delivered to Robertson, and returned by him, September '26, 1846, “no property found.”
    It was proved that the property levied on was left in the possesion of Gore by the plaintiffs’ direction, and was finally relinquished to him by them, on his agreeing to furnish them with certain other property to an amount sufficient to pay the debt, &c. It was also proved that the plaintiffs kept their excutions alive, not for the purpose of making the money out of the property levied on, but to prevent a lien and to keep it from other creditors of Gore.
    The defendants offered to prove that Gore was insolvent, and entirely destitute of property, from the time of suing out the last execution until the commencement of this suit. The plaintiffs objected to this evidence and it was excluded by the Court.
    Judgment was then rendered by the Court, without the intervention of a jury, for $1000, the penalty of the bond, and execution ordered to be issued for $52-74, the amount of the original execution, interest and costs.
    The defendants then entered a motion for a new trial, which the Court overruled, and a final judgment was rendered.

      0. Peters, for the plaintiffs in error.
    1. The motion to dismiss for want of security for costs should have been sustained.
    We admit that there is no express provision of the statute requiring security in this case eo nomine. Rev. Stat. 126, § 1 provides, however, that in actions on official bonds, a bond for costs shall be filed with the clerk, thus implying that if suits are to be brought on official bonds, they are to be instituted only in Courts of record where there is a clerk.
    But it is clear, that at the time when our cost Act was passed, justices of the peace had no jurisdiction of actions on official bonds. If they have such jurisdiction now, it is a transfer of a part of the jurisdiction of the Circuit Courts to them, and if so# it would seem to follow, that the incidents of the jurisdiction should be transferred with the jurisdiction itself. There is the same reason for requiring security for costs, as when the jurisdiction over the same subject matter was exercised exclusively by the Circuit. Courts.
    2. The testimony of Gore, as to his own insolvency, ought not to have been excluded.
    The officer, as well as the sureties on his bond, ought to have been permitted to prove what the actual loss of Cochran & Perry was, or that they had suffered no actual loss by the acts of Robertson. There is no justice nor rule of right which would require that he should pay them money which his acts have not caused them to lose. The inquiry should be, what have they lost, what measure of damages have they suffered by his acts? The case shows that Gore had no property on which the third execution could have been levied, from the day it was issued, up to the time of the commencement of this suit.
    Our Practice Act, (Rev. Stat. 416, § 18,) regulates the proceedings in actions on penal bonds. This section is a re-enactment of the statute of 4th of Anne on the same subject, and is to receive the same construction. The language of these Acts is, that the “plaintiff may assign breaches,” &c. The word may is construed to mean shall, and the jury shall assess the damages occasioned by the breaches in the condition of the bond. No rule for the damages is indicated, nor is there any thing to show that the assessment is to be other than the actual damage the party has suffered. Sedgwick on Damages, 412, 416, 717..
    It was formerly holden in Connecticut, as “stern policy rather than exact justice,” that an officer, for neglect of duty in serving process, should be holden for the whole debt; but this rule has been changed, and it is now settled in that State, that the actual loss shall, ordinarily, be the measure of damages. Palmer v. Gallup, 16 Conn. 555, and see the note to that case. In Massachusetts, the same rule has been fully settled. Glezen v. Rood, 2 Metc. 490; Laflin v. Willard, 16 Pick. 64.
    When the plaintiffs prevented the officer from doing his duty, they were entitled to only nominal damages. Wood v. Bartlett, 10 Mass. 470; Rich v. Bull, 16 do. 294; Simmons v. Redford, 15 do. 82.
    So, also, in Newhampshire. Bruce v. Pettingill, 21 New Hamp. 341.
    Also in New York. Russell v. Turner, 7 Johns. 189; Potter v. Lansing, 1 do. 215; Kellogg v. Brown, 9 do. 300.
    It was doubted on whom the burden rested, whether the plaintiff must go beyond proving his debt, to entitle him to recover; hut we admit the rule now to- be, that the onus is on the defendant, and he must prove that the plaintiff has not lost by his neglect. Patterson v. Westervelt, 17 Wend. 543; Bank of Rome v. Cartiff, Sheriff, &c, 1 Hill’s (N. Y.)R. 375.
    In the case of Simmons v. Bedford, 15 Mass. 82, before cited,, the officer was not permitted to show the facts in mitigation of damages. He had returned upon the writ that he had taken hail, and refused to return the bail bond, and it appeared that- he had taken no bond,.and this case is clearly distinguishable from the others.
    3. The motion for a new trial ought to have been allowed, The whole of the evidence is given in the bill of exceptions..
    This shows that the officer did his duty on the first execution,. levied and returned it, as the plaintiff directed; and so of the second. There was no default as-to these.
    As to the third execution: Whilst it was in his hands, the plaintiffs, (Cochran &. Perry,) released, their- lien-upon the property to Gpre, and agreed with him to take hogs and a cow for their debt. This was a binding agreement on them. They had directed him generally not to sell, but to preserve their lien by the levy. They then left it discretionary with him to do as he should judge best. They never countermanded this direction. By his levy on the property he acquired a right to sell after the life of the execution, and the lien continued. It is true he had a right to sell without the execution ; but he was not obliged to do- so. Phillips v. Dana, 3 Scam. 551.
    The plaintiffs in the execution undertook to control it, and did control it; and it would be a reproach to the law, to permit them to turn round upon the officer, and force him to pay the amount of this judgment, when, but for their interference, he would have made the money on the first execution. They did that which was a fraud upon other creditors, and now they seek to charge the officer and his sureties, for the result of those fraudulent acts of their own.

      T. L. Dickey for the defendants in error,
    presented the following points and authorities
    I. The motion to dismiss for want of security for costs was properly overruled.-
    1. Because section-one, chapter twenty six, of the Revised Statutes, does not, by it's terms,-apply to proceedings commenced before justices of the peace.
    2. Because it is a dilatory motion, and not being made before the justice of the peaces will be held to have been waived. Rev. Stat. 325, §§ 66, 67.
    II. The justice’s jurisdiction is given expressly by statute. See Rev. Stat. 332, §'§ 118 — 123.
    III. The true measure of damages was adopted. It is expressly prescribed by the statute, and in such cases the Common Law authorities do not apply. See Rev. Stat. ch. 59, §; 118-, in connection with Gale’s Stat. 424, § 10..
   The Opinion of the Court was delivered by

Trumbull, J.

This was an action upon the official bond of a constable, commenced against the constable, Robertson, and his securities, before the Probate Justice of Marshall County, acting as an ordinary justice of the peace, and taken by appeal to the Circuit Court, where judgment was rendered against the plaintiffs in error for $1000, the amount of the penalty of the bond, with an order that an execution issue for fifty two dollars and seventy four cents, being the amount of damages as found by the Court, a jury having been dispensed with by consent of parties.

The Circuit Court overruled a motion to dismiss the suit, and two causes are now assigned to show that decision to be erroneous: First, that the suit should have been dismissed for want of security for costs, and secondly, because the Probate Justice had not jurisdiction of the cause.

Section one, chapter twenty six, of the Revised Statutes, provides, that in all actions on office bonds for the use of any person, the person for whose use the action is to be commenced, shall, before he institutes such suit, file with the clerk of the Circuit or Supreme Court in which the action is to be commenced, security for costs. This section of the statute manifestly has reference, by its terms, to actions commenced in the Circuit or Supreme Court, and not to those instituted before a justice of the peace; but at the time of its passage, justices of the peace had no jurisdiction of actions upon office bonds. That jurisdiction was conferred by a subsequent statute, and as there is the same reason for requiring security for costs, whether the action is brought before a justice or the Circuit Court, it is but fair to presume that the Legislature, in transferring to justices of the peace concurrent jurisdiction with the Circuit Court in this class of cases, intended to confer also the incidents to that jurisdiction, so far as they were applicable to proceedings in a justice’ court. Had the motion to dismiss been made in the first instance before the Probate Justice, and in case of refusal renewed in the Circuit Court, its decision denying the same would have been error. It does not, however, appear that any motion to dismiss was made before the Probate Justice, and as the motion is of a dilatory character, tending only to defeat the action, and not the cause of action, the plaintiffs in error, by omitting to make it before the justice, waived their right to do so when the case came into the Circuit Court.

Upon the question of jurisdiction in the Probate Justice to try the cause, there cannot be a doubt. The jurisdiction and mode of proceeding are expressly given and pointed out in sections, from 118 to 123, inclusive, of the Act concerning justices of the peace and constables. Rev. Stat. 332. The fact that difficulties may arise in the exercise of this jurisdiction by justices of the peace, which we apprehend will be less than counsel suppose, does not take away-the jurisdiction itself.

The only remaining question raised by the assignment of errors, and indeed the principal and most important one, relates to the measure of damages. Robertson, as constable, had failed to return an execution in favor of Cochran & Perry within ten days after its proper return day, and on account of this failure, the parties for whose use the suit was brought, insisted upon damages to the full amount of their execution and interest, while the plaintiffs in error contended that they were liable only for nominal damages in case they could show that Cochran & Perry had suffered no real injury by the neglect of the constable to return the execution, and offered evidence tending to show the insolvency of the defendant in execution, and that Cochran & Perry had sustained no real damage by the failure to return the execution within the time required by law. This evidence the Court excluded, and assessed the damages to the amount of the execution and interest.

The correctness of this assessment of damages depends upon the construction to be given to section 118, chapter 59, of the Revised Statutes, which is as follows : “ If any constable shall neglect or fail to return an execution within ten days after its proper return day, or if the demand, debt or claim be wholly or in part lost, or if any special damage shall arise to any party by reason of the neglect or refusal to act, or the misfeasance or nonfeasance of any constable in the discharge of any official duty, the party aggrieved may have his action in the Circuit Court, or when the amount claimed does not exceed one hundred dollars, before any justice of the peace of the proper county, against •such constable and his securities on the official bond of such constable, and shall recover thereon the amount of said execution, with interest from the date of the judgment upon which the original execution issued.”

To give this section of the statute a literal meaning, and allow damages to the extent of the execution and interest in all cases where the party aggrieved is authorized by said section to have his action, would, it is insisted, be absurd, and indeed impossible; as in the case of a neglect by the constable to serve a summons, it would be impossible to allow the party aggrieved in an action upon the constable’s bond, damages to. the amount of the execution, when in fact there was and had been no execution; wherefore it is contended, that as the last clause of the section fixing the amount of damages to be recovered, cannot be enforced in all the various cases where the party aggrieved is authorized to sue, it was improperly enforced in this case. What construction is then to be given to this section of the statute ? Shall the last clause, which declares that the party aggrieved shall recover the amount of said execution with interest, be construed to have no meaning? Such will be the consequence, if the construction contended for by the plaintiffs in error be adopted, for if this latter clause does not apply to a case where a constable neglects to return an execution within the ten days, it cannot apply to any case. The Legislature manifestly intended something by the language used, and it is the duty of the Courts to give effect to the legislative intention' as manifested by the words they have chosen. This can be done by holding that the amount of damages to be recovered for a failure to return an execution within the ten days, is the amount of the execution with interest, while the sum to be recovered in the other cases provided for in said section, is the amount of damages actually sustained. This construction gives effect to the whole section, and is undoubtedly in accordance with the intention of the Legislature. Upon a careful examination of the whole section, it will be seen that the word execution occurs but twice in it; once when speaking of a failure of the officer to return an execution within a certain time, and again in the last clause of the section, which declares the. amount to be recovered, and where it is prefixed by the word “sú;zé?,” thus referring back to the word as previously-used in the first part of the section. So that in strictness, the clause of the section declaring the amount of the recovery to be had, is confined, by the language used, to the clause having reference to the return of the execution.

We are fortified in the construction we have adopted, by the fact that the provision declaring that if a constable should fail to return an execution within a certain number of days of its proper return day, he and his securities should be liable upon his official bond to pay the whole amount of said execution with interest, as originally passed, constituted a separate section by itself. Gale’s St at. 424, § 10. But in the revision of the statutes, that and several other sections have been combined in one, which accounts for the apparent awkwardness of the section as it now reads in the Revised Statutes. If the original section had been preserved in the revision, there could be no question as to its proper construction.

The statute requires an execution to be returned within a certain time, and lest this requirement should be disregarded, provides that if a constable will continue to violate his duty by failing to return an execution for ten days after its return day, both he and his securities shall be liable to the party aggrieved for the full amount of the execution, and interest upon the judgment on which it issued. It was undoubtedly competent for the Legislature to impose such a liability for a failure by the constable to perform his duty, and the numerous cases cited to show that, as a general rule, the obligors upon a bond are only liable to respond in damages to the amount of the real injury occasioned by the breach complained of, can have no application to this case, because the Legislature has declared what the meas-, ure of damages shall be.

Being, therefore, of opinion that the failure by a constable to return an execution within ten days of its return day, renders himself and his seccrities liable upon his official bond for the amount due and unpaid upon said execution to the plaintiff therein, with interest from the date of the judgment upon which the execution issued, it follows that the Circuit Court did not err in refusing to admit evidence of the insolvency of the defendant in execution, as such evidence could not have varied the amount or measure of damages as fixed by the statute.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.

      Caton, J. did not sit in this case.


author:
Treat, C. J.*
      *Caton J. did not sit in this case.

text:
    Joshua Evans, appellant, v. William Fisher et al., appellees

      Appeal from Marshall.

    The provision in the Revised Statutes, Chap. 40, § 7, dispensing, where there is no plea in abatement, with the proof of partnership and of the names of the partners, in a suit brought by a firm, applies as well to suits commenced before justices of the peace as to those brought in'the Circuit Court.
    The husband is liable for necessaries furnished to the wife living apart from him, where the separation was caused by improper treatment on his part, or he assents to, or acquiesces in it; aliter if she left him without good cause and against his consent.
    The evidence as preserved in the record being inconclusive and contradictory, and a jury having passed upon it, this Court will not make the refusal of the Circuit Court to set aside the verdict as against evidence, a ground for reversing the judgment.
    This was an action brought originally before a justice of the peace of Marshall county by the defendants in error against the plaintiff in error for goods furnished by the former to the wife of the latter, living apart from her husband. The case was taken by appeal to the Circuit Court of said county, and there tried before the Hon. John D. Catón and a jury, at the October term, 1848, and a verdict found for the plaintiff below for $54-04. The defendant below moved for a new trial on the ground that the evidence showed, that tlie wife of the defendant lived apart from her husband without his consent. The motion was overruled and the case was brought to this Court by appeal. The substance of the evidence is stated in the Opinion of the Court.

      B. C. Cook and T. L. Dickey, for the appellant.
    If the wife depart from her husband, without his consent, he is not liable for necessaries furnished to her, although he has given no notice not to trust her. Reeve’s Dom. Eel. 81; Clancyton Husband and Wife, 33; McGahay v. Williams, 1 Johns. 293; McCutchen v. McGahay, 11 do. 280; Manly v. Scott, 1 Mod. 128; Harwood v. Heffer, 3 Taunt. 420.

      0. Peters, for the appellee.
    1. The evidence in this case clearly shows, the intermarriage of Mr. and Mrs. Evans — that they lived separate —that the goods were furnished to her after the separation by defendants in error, and that they were necessaries.
    This we contend makes out a prima facie case for the plaintiffs below ; throws the burden of proof on the defendant to show that the separation was against his consent.
    The husband has a right to the society of his wife, and to have her reside in his domicil — and to accomplish this, he may use means, both suasive and coercive.
    From the fact that he possesses this power, the inference ought to be, that she absents herself with his consent, and that he voluntarily neglects to exercise his rights and to control her actions.
    And the authorities sustain this view of the case, though, in this, as in most cases, there is some conflict. Kotch v. Miles, 2 Conn. 647 to 650; Clancy’s Husband and Wife, 2.8.
    See particularly for a full and able discussion on this subject, Rumney v. Keyes, 7 N. H. 578.
    2. There is no evidence to rebut this presumption. The most that the evidence shows, is a willingness to have her remain with him, and this is but feebly indicated.
   The Opinion of the Court was delivered by

Treat, C. J.*

Ought the Circuit Court to have granted a new trial? It is insisted that there was no evidence showing that the goods were furnished by the plaintiffs. They are described in the proceedings as partners by the style of William Fisher & Co. To maintain their action, in this respect, it was only necessary for them to show that the goods were obtained from the firm. They were not bound to prove the partnership or the names of the partners. In the opinion of the Court, the seventh section of the fortieth chapter of the Revised Statutes applies as well to suits commenced before justices of the peace, as to those originally brought in the Circuit Court. The principle of the case of Archer v. Bogue, 3 Scam. 526, demands such a construction of the statute.

*Caton J. did not sit in this case.

It is manifest from an inspection of the bill of exceptions, that the real contest in the Court below was, whether the defendant was chargeable with the goods, and not whether the plaintiffs had provided them. The witnesses speak of the goods having been procured at the store of Mr. Fisher. This is not inconsistent with the truth of the allegation that they were furnished by the firm. Fisher, probably, was a member and the active partner of the firm. The evidence, it must be admitted, does not show directly and certainly that the goods were furnished by the plaintiffs, but it seems to have satisfied the jury, and we are not inclined to say that there was no evidence to warrant their conclusion.

The principal question is, whether the articles were furnished under circumstances that rendered the defendant responsible for their payment. That they were furnished to the wife while living apart from the husband, and were necessary and suitable to her condition, the evidence clearly establishes. The turning point in this case is, whether she was living apart from her husband with his consent. If so, he was clearly liable for the goods; if otherwise, the plaintiffs have no right to recover. The husband is not responsible even for necessaries furnished the wife when residing apart from him, if she left him without good cause and against his consent. But if the separation was caused by improper treatment on his part, or he assented to or acquiesced in it, he is liable for her necessary support, and to that extent she has credit on his account in the community. 2 Kent’s Com. 146 ; 3 Starkie’s Ev. 393-4; Clancy, 28.

The parties lived unhappily together. A separation took place, but through the intervention of friends, they became reconciled and again resided together. There was a renewal of the difficulties, and the wife finally left him. Both parties seem to have considered it a final separation. The husband made no efforts to induce her to return, and in fact seemed not to desire it. It appears from the evidence that on one occasion she told him, she would again leave him, and he answered, “she might go in welcome and shortly before she left, he said “there was no such good news as her leaving him.” A son of the defendant who was present when she left testifies that, on her declaring she would leave him, he replied that “he would not hinder her, but rather she would stay.” After the separation, he said it was well they were apart, and from the reason he gave why they ought to reside together, it is evident he did not regret her departure or desire her return. And to another witness he said “she was not to blame for what she had done.” This is substantially all of the evidence concerning this branch of the case. The Court distinctly charged the jury that the defendant was not liable for the goods if the wife left him without his consent. The case was fairly submitted to the jury, and they had only to determine, from all the circumstances of the case, whether the separation was with or without the defendant’s consent. The evidence was inconclusive and contradictory, and the jury having passed upon it, we perceive no good reason for disturbing their verdict. We cannot say either that there was no evidence tending to show that the separation was with the consent of the defendant, or that there was a decided preponderance of evidence the other way.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.