text:
    Bradley Rust, Plaintiff in Error, v. Frothingham and Fort, Defendants in Error.
    ERROR TO MONROE.
    A variance between the writ and declaration, can not be reached by demurrer.
    This court can not look at a record which was introduced as evidence in the court below, unless the same is made a part of the record by bill of exceptions.
    A record from another state is conclusive evidence of the debt claimed—it imports absolute verity, and nothing can be alleged against it.
    A plea to an action of debt upon a record, stating “that the defendant had not been served with process, had never appeared, or authorized an attorney to appear for him," would be good, yet if the record shows that he did appear, &c., the record can not be contradicted by evidence.
    The appearance of an attorney without authority is good.
    A writ of inquiry is not necessary in any case, where the damages can be ascertained by computation.
   Opinion of the Court by

Justice Lockwood.

This was an action of debt, commenced in the Monroe circuit court by Frothingham and Fort against Rust, on a record of a judgment obtained in the state of New York. The declaration is in the usual form. The defendant below demurred to the declaration, to which there was a joinder. The demurrer was overruled, and the declaration held to be good. Subsequently, the defendant pleaded nul tiel record, payment and a special plea, alleging that no service of process had been made on defendant below in New York, and that the appearance stated in the record to have been for defendant by attorneys in the New York court, was without the authority of defendant. To this last plea the plaintiffs below demurred, and the demurrer was sustained. Subsequently, the defendant withdrew the plea of payment, and the court tried the issue of nul tiel record, which was found for the plaintiffs, and judgment rendered for the debt mentioned in the declaration, amounting to 254 dollars, 60 cents, and also gave damages amounting to 100 dollars, being less than six per cent, interest on the debt, from the rendition of the judgment in New York, to the rendition of the judgment below. To reverse this judgment, a writ of error has been brought to this court.

A variety of errors have been assigned, which will be noticed in the order they were argued.

1. It is assigned for error, that the court below overruled the defendant’s demurrer to the plaintiff’s declaration. The reason urged for sustaining the demurrer, was that there was a few cents difference between the statement of the debt in the writ and in the declaration. Can this variance be reached by demurrer ? The practice of courts for a long time has been to give relief against irregular process by motion, and no good reason is perceived why this long established practice should be varied from. It is also a rule of practice, that if a party appears and pleads, a vicious process is aided. The objection, however, to the process was such, that the court below would have permitted it to be amended. A demurrer only goes to the sufficiency of the declaration, and that being good on its face, the demurrer was properly overruled.

2. It is also assigned for error, that the plea of nul tiel record was found for plaintiff below. Whether this issue was correctly decided, can not be ascertained by this court. If the defendant wished to have excepted to th.e record introduced as evidence in the court below, he should have taken a bill of exceptions.

3. That the defendant’s special plea was decided to be bad. This plea admits that the record states that attorneys did appear for defendant and defend the suit. Can a party aver any thing which contradicts the record ? A record imports absolute verity, and nothing can be averred against it. This court has repeatedly decided, that the records of sister states are to be considered as conclusive evidence, unless, perhaps, in cases where from the record and proceedings it should appear that the party had no notice. If the plea in this case had only averred that he had not been served with process, and that he had never appeared, or authorized an attorney to appear for him, the plea would probably have been good. Yet, on the trial of the cause, if the record showed either a service of process, or an appearance by attorney, the defendant would not have been permitted to contradict the record by evidence. But this plea admits that the record shows an appearance by attorney, and then denies the truth of the averment in the record. This can not be done. The pre- ■ sumption in favor of records is, that the court where the cause is tried will not permit an attorney to appear unless they are satisfied that he has authority from the party. This rule is necessary for the safety and validity of judicial proceedings. Should an attorney appear for a party without authority, he would be liable in damages to the party injured, and would also subject himself to be punished for a contempt. This is considered sufficient to protect parties from the officious interference of attorneys. Should an attorney, however, appear without authority, and the party sustain an injury beyond the ability of the attorney to compensate, it is probable that a court of equity might set aside a judgment obtained in consequence of such wrongful appearance ; but at law, the appearance is good, and can not be contradicted.

Semple and Breese, for plaintiff in error.

Cowles, for defendants in error.

4. It is also assigned for error, that the court entered judgment for damages without calling a jury, or issuing a writ of inquiry. A writ of inquiry at common law only issues where the judgment is interlocutory, but the judgment in debt is final.

A writ of inquiry is, however, unnecessary in any case, where the damages can be ascertained by computation. Our statute does not apply to this case. Had the plaintiff averred in his declaration, that he was, by the laws of New York, entitled to a higher rate of interest than he was entitled to by the laws of this state, there then would have been a propriety in calling a jury to ascertain what interest was allowed in New York; but even in such case, the court would have a right to ascertain the fact, and give the damages without the intervention of a jury. This objection, then, forms no ground of error.

The other errors assigned are not deemed of sufficient importance to require any notice. The errors assigned, being, in the opinion of the court, insufficient, the judgment is affirmed with costs,

Judgment affirmed.

       No advantage can be taken of a variance between the writ and declaration, on a writ of error. It must be taken advantage of by a plea in abatement, or by a motion. Prince v. Lamb, post. Cruikshank v. Brown, 5 Gilm., 75, Weld v. Hubbard, 11 Ill., 574. Rowley v. Berrian, 12 Ill., 202.

       See note to Browder v. Johnson, ante, p. 96.

       See note 3, to the case of Kimmel v. Schultz et al., ante, p. 169.

         Greenup and Conway v. Woodworth, ante, p. 232.
      In an action upon a judgment in another state, the defendant can not plead any fact in bar, which contradicts the record on which the suit is brought. 1 Peters’ Cir. Court Rep., 155.
      In an action of debt on a judgment, the interest on the judgment may be computed and made part of the judgment in Louisiana, without a writ of inquiry or the intervention of a jury. Mayhew v. Thatcher et al., 6 Wheat., 129.


source: Caselaw Access Project

author: Justice Smith.

license: Public Domain

text:
    Thomas P. Clark, Plaintiff in Error, v. Henry J. Ross, Defendant in Error.
    ERROR TO ADAMS.
    A writ of error will not lie where the judgment, exclusive of costs, is less than twenty dollars. The word “ appeals," used in the 32d section of the practice act of 1827, applies equally to writs of error.
   Opinion of the Court by

Justice Smith.

This is a writ of error, brought to reverse the judgment of the circuit court of Adams county, on an appeal from a decision of a justice of the peace affirming such judgment, which amounted to nineteen dollars, and no more.

A preliminary question has been raised, denying the jurisdiction of this court in a case where the judgment below does not amount to twenty dollars, exclusive of costs.

The 32d section of the act concerning practice in courts of law, passed in January 1827, declares that “ appeals from the circuit courts to the supreme court, shall be allowed in all cases where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of twenty dollars, or relate to a franchise or freehold.”

This provision has clearly precluded the bringing of an appeal in a case like the present, but it is contended that it could not extend to writs of error.

We are then led to consider whether in the use of the term “ appeals” the legislature intended to confine the exception to the case of appeals, using the word in its strict technical sense, or whether it was not used to embrace all cases brought into the supreme court, where the judgment was less than twenty dollars, without regard to the name of the process or manner by which it is brought into this court. A proceeding in error is, in truth, an appeal from the decision of <>an inferior to a superior tribunal. The term appeal implies the removal of a cause for a rehearing upon the facts as well as the law, yet in this court the reviewing of appeals has never received that interpretation. From this uniform exposition, in cases of appeals, and the terms of the law defining the cases in which appeals should be granted, it may be fairly inferred that the object of the legislature was to prevent the supervision of all cases in the supreme court, where the judgment was less than the sum of twenty dollars, except it should relate to a franchise or freehold.

McConnel, for plaintiff in error.

Cavarly, for defendant in error.

This construction has an additional support in the fourth article of the constitution creating the supreme court and defining its jurisdiction. By the second section of that article it is declared that “ the supreme court shall have an appellate jurisdiction only, except in cases relating to the revenue, in cases of mmdamus, and in such cases of impeachment as may be required to be tried before it.” The framers of the constitution have here used the word appellate, in its extended and general signification, intending to embrace all cases without regard to the manner in which the cause might be removed. If it did not receive this construction it might be pretended that the powers of review of this court were limited to such cases as were strictly appeals, and we might then cavil on the question whether a writ of error was an appeal. No one could subscribe to such an absurdity, and thus circumscribe the jurisdiction of this court.

If this reasoning be correct, as it must necessarily seem to be, it follows as a corollary, that the word “ appeals,” used in the thirty-second section of the practice act must equally apply to cases of writs of error.

The judgment of the circuit court being for less than twenty dollars, exclusive of costs, this court is bound to declare that it has no jurisdiction-of the cause, and that it must be for that reason dismissed and the defendant in error recover his costs, ,

Writ of error dismissed.

      Rev. Code of 1827, p. 318.

         A writ of error is a writ of right, and can not be refused except in capital cases. 6 Johns. Rep., 337.

       This decision has been expressly overruled by the case of Bowers v. Green, 1 Scam., 42.
      Where the subject matter of a suit does not relate to a franchise or a freehold, and where the judgment does not amount to twenty dollars exclusive of costs, the remedy is by writ of error, and not by appeal. Washington County v. Parlier et al., 4 Gilm., 353. Purple's Statutes, 827, Sec. 47. Scates’ Comp., 264.
      To justify an appeal on the ground that the judgment relates to a freehold, the right to the freehold must have been the subject directly of the action, not incidentally or collaterally, and the judgment must be conclusive of the right until reversed. Rose et al. v. Choteau, 11 Ill., 167.
      An appeal is not allowed to a party from a judgment in his own favor. He must prosecute a writ of error. Addix et al. v. Fahnestock et al., 15 Ill., 448.
      In all criminal cases, not capital, the writ of error is a writ of right, and issues of course. Stuart v. The People, 3 Scam., 395.
      A criminal case can not be brought to this court except by writ of error. Mohler v. The People, 24 Ill., 26.


author: Justice Lockwood.

text:
    Jonathan Ellis, Appellant, v. Jacob Snider, Appellee.
    APPEAL FROM UNION.
    Where it appears from the account of the plaintiff that he claims less than one hundred dollars before a justice of the peace, the justice is not ousted of his jurisdiction, though a witness should prove that the plaintiff was entitled to more than one hundred dollars. The plaintiff’s own claim must govern as to jurisdiction.
   Opinion of the Court by

Justice Lockwood.

This was an action originally commenced before a justice of the peace, in which the plaintiff recovered ninety dollars, and an appeal was taken by the defendant to the circuit court of Union county. Previous to the commencement of the trial in the Union circuit court, the plaintiff, on motion of the defendant, was ordered to file a written account, and thereupon the plaintiff filed a written account consisting of several items, amounting in the aggregate, to ninety-five dollars. It appearing to the court below, from the evidence of witnesses, that the defendant below was indebted to the plaintiff in a larger sum than one hundred dollars, (although the plaintiff had charged and claimed* a less sum than one hundred dollars,) the court decided that the justice of the peace had no jurisdiction of the cause, and reversed the judgment of the justice on that ground. To review the judgment of the circuit court, an appeal has been taken to this court.

The only question presented for our consideration is, whether the circuit court erred in reversing the judgment of the justice of the peace for want of jurisdiction.

By a reference to the statute giving justices of the peace jurisdiction, it appears that they have jurisdiction, “for any debt claimed to be due upon open and unsettled accounts between individuals, where the whole amount of the accounts of either party shall not exceed one hundred dollars.” The party who presents an account is the best judge of the extent of his claim, where the amount of his claim has not been reduced to certainty by a note or express agreement. He is to determine how much he will demand for any particular service or article of property, and it is for the court or jury to decide whether the charge is reasonable or otherwise, and it is their province to allow either the amount claimed, or less, as in their judgment they shall believe the testimony will warrant. But neither the court or jury have a legal right to allow more than the plaintiff claims. Should they do so, it would be error, unless the plaintiff remits the excess. The circuit court, consequently, erred in deciding that the justice had no jurisdiction. The judgment below is reversed, with costs, and the cause remanded for further proceedings. ,

Breese, for appellant.

Judgment reversed.

      Rev. Laws of 1827, p. 259,

       Cases in relation to jurisdiction of justices of the peace. Clark v. Cornelius, ante, p. 46. Maurer v. Derrick, ante, p. 197.

       See note to Clark v. Cornelius, ante, p. 46.


text:
    Lansing W. Wells, Plaintiff in Error, v. Patrick Hogan, Defendant in Error.
    ERROR TO JO DAVIESS.
    The proceedings under the statute for forcible entry and detainer, being summary, and contrary to the course of the common law, must strictly conform to the requisitions of the statute.
    A complaint made in writing before two justices of the peace, that the complainant “is entitled to the possession of a house and lot in the town of-, wherein one Wells lives, and that said Wells refuses to give possession of said house and lot, though he has been notified to do so in writing," is insufficient.
    In order to give the justices jurisdiction, the plaintiff ought to have stated in his complaint that the defendant willfully, and without force, held over the premises after the time had expired for which they were leased to him; or in other words, the relation of landlord and tenant should be shown to exist, and a holding-over, after a demand made in writing by the landlord.
    No particular form is required in the proceedings of a court, to render them an order, or judgment; it is sufficient if it is final, and the party may be injured.
   Opinion of the Court by

Justice Lockwood.

This was an action for forcible detainer, originally commenced by Hogan before two justices of the peace of Jo Daviess county. Hogan states in his complaint that “ he is entitled to the possession of a house and lot in the town of Galena, wherein one Wells lives, and that said Wells refuses to give possession of said house and lot, though he has been notified so to do in writing,” which complaint was sworn to, and on the trial before the justices, a verdict was found against the defendant below. To reverse this decision, an appeal was taken to the circuit court of Jo Daviess county, and upon the trial in that court, a verdict was found against Wells, that he was “guilty of a forcible detainer.” Upon giving this verdict, the defendant prayed time to file a bill of exceptions, which was granted. The record then states, “'It is ordered and adjudged, that unless the defendant enter into bond as the law directs, within fifteen days, in the penal sum of seven hundred dollars, with James Jones as his security, that then a writ of restitution be awarded, and that the plaintiff have execution for his costs herein paid out and expended.” To reverse this order or judgment, Wells has brought this case into this court by writ of error, and has assigned a number of errors. It will, however, be unnecessary to consider any but the following, to wit: The complaint made before the justices of the peace was insufficient. The proceedings under the statute for forcible entry and detainer being summary, and contrary to the course of the common law, must strictly conform to the requisitions of the statute. The complaint is the foundation of the action, and must contain sufficient matter to give the justices jurisdiction, or the whole of the proceedings will be coram nonjudice, and consequently, void. In order to justify the justices of the peace in taking jurisdiction of this case, the plaintiff below ought to have stated in his complaint, that the defendant below willfully, and without force, held over the premises after the determination of tlf6 time for which such premises were let to him, or the person under whom he claims, after demand made in writing for possession thereof, by the person entitled to such possession; or in other words, the relation of landlord and tenant should be shown to exist, and a holding over after demand made in writing for a redelivery of the premises to the landlord.

The complaint exhibited to the magistrate, states that the plaintiff below “ is entitled to the possession of a house and lot where defendant lives,” without showing that the defendant was a tenant, either to himself, or to any person under whom he claims. This was not sufficient to give the justices jurisdiction of the case. It is, however, objected on the part of the defendant in error, “ that no judgment has been given in the circuit court, and consequently, that a writ of error will not lie.” No particular form is required in the proceedings of a court, to render their order a judgment. It is sufficient if it is final, and the party may be injured. In this case the order of the court is absolute, that a writ of restitution should issue, unless the defendant below executed a bond in a large penalty, with security, within fifteen days. If the party failed to execute the bond, the writ of restitution was to issue, to obtain which writ was the design of commencing the suit. It does not appear that the bond was executed, and consequently, the defendant was exposed to have the writ of restitution issued against him, and thereby be expelled from the premises in a case where the justices had no jurisdiction. A writ of error was, under the circumstances, the only means left, after the fifteen days had expired, to prevent the defendant’s being illegally turned out of possession of premises, which for any thing that appears, actually belonged to him.

Cavarly, for plaintiff in error.

Ford and Strode, for defendant in error.

The judgment below must be reversed with costs, ,

Judgment reversed.

       Chief Justice Wilson did not sit in this cause.

         Vide Clark v. Roberts, ante, p. 285.

       There are four cases in which a forcible entry and detainer may be maintained in this state: 1. Where there has been a wrongful or illegal entry upon the possession of another; 2. Where there has been a forcible entry upon such possession ; 3. Where any person may be settled upon the public lands within this state, when the same have not been sold by the general government; and 4. Where there has been a wrongful holding over by a tenant after the expiration of the time for which the premises may have been let to him. In the first three classes, before the action can be maintained, there must be an illegal and forcible entry upon the actual, or, as in the case of a settlement upon the public lands, constructive possession of another. In either of these cases, it is not sufficient to charge in the complaint that the complainant’s right to the possession only, had been invaded by the forcible or illegal entry. Whitaker et al. v. Gautier, 3 Gilm., 443.
      A complaint for a forcible entry and detainer should clearly show the foundation of the right, which is sought to be enforced; and that the wrongful or illegal entry was made upon the actual or constructive possession of the plaintiff; or the relation of landlord and tenant, and a wrongful holding over must be shown. Id.
      When the relation of parties is that of vendor and vendee, a proceeding for forcible detainer will not be sustained. Dixon v. Haley, 16 Ill., 145.
      To constitute forcible entry and detainer, violence is not essential. If the entry is made against the will of another, the entry is forcible in legal contemplation. Croff v. Ballinger, 18 Ill., 200.
      Title is immaterial in a proceeding for forcible entry and detainer, except to show the extent of the possession. Deeds may be read in evidence to prove boundaries, or extent of possession. Brooks v. Bryan, 18 Ill., 539.
      See note to Bloom v. Goodner, ante, p. 63.
      Since preparing the foregoing notes the following law has been passed by our Legislature. “ Chapter 43 of the Revised Statutes of 1845, (Forcible Entry and Detainer,) shall be extended to all cases between vendor and vendee, where the latter has obtained the possession of lands under a contract, by parol or in writing, and before obtaining a deed of conveyance of the same, fails or refuses to comply with such contract to purchase, and to all cases where lands have been sold, under a judgment or decree of court in this State, and the party to such judgment or decree, after the expiration of the time of redemption refuses, after demand in writing by the purchaser under the same, to surrender possession thereof: Provided, that in cases of vendor and vendee, the latter shall be entitled to cultivate and gather the crop growing on the premises at the commencement of the suit, and the right of ingress and egress for that purpose, and for the purpose of removing saidjcrop after its maturity.” Acts of 1861, p. 176,


text:
    Thomas P. Clark, Plaintiff in Error, v. The People, &c., Defendant in Error.
    ERROR TO ADAMS.
    The power to punish for contempts is incident to all courts of justice, independent of statute, and the exercise of this power, resting in the sound discretion of the court, can not be reviewed by the supreme court.
    If the magistrate acts maliciously or oppressively, our laws can punish him by indictment or impeachment.
   Opinion of the Court by

Justice Smith.

This case is brought up to reverse the decision of the circuit court of Adams county, in dismissing the appeal from the justice of the peace for want of jurisdiction in the circuit court.

The single point presented by the case is, whether an appeal will lie to the circuit court to re-examine the decision of a justice of the peace in imposing a fine on a party for a contempt offered him while sitting as a justice of the peace, and acting in his official capacity ? It is contended in support of the grounds of error assigned by the plaintiff in error, that the appeal from the justice’s decision to the circuit court, is warranted by the statute authorizing the taking of appeals from their decision to the circuit court. The 31st section of that statute is alone applicable, to proceedings in civil cases, and can not, therefore, embrace a case of the present character, which must be considered as partaking of a criminal nature ; nor is it given by the 7th section of the act extending the criminal jurisdiction of justices of the peace, passed in December, 1826 which is confined exclusively to the cases enumerated in that act. It is manifest that neither of the sections referred to give the right to an appeal in a case like the present.

There are other considerations which it may be proper to examine to show that the circuit court does not possess the power to review the decision of the magistrate, either by appeal or in any other form. By the 24th section of the “ act concerning justices of the peace and constables,” it is provided “ that every person who shall appear before a justice of the peace, when acting as such, or who shall be present at any legal proceedings before a justice, shall demean himself in a decent, orderly and respectful manner, and for failing to do so, such person shall be fined by the justice for contempt in a sum not more than five dollars.” The fine imposed in this case was fixed at three dollars, but in what the contempt consisted does not appear, nor is it deemed material to inquire. It is not pretended that the magistrate has exceeded his powers in any way, nor that the contempt was not committed in his presence. The power, however, to punish for contempts, is an incident to all courts of justice independent of statutory provisions, and the power to enforce the observance of order, punish for contumacy by fine or imprisonment, are powers which may not be dispensed with, because they are necessary to the exercise of all others. The distinction that courts of inferior jurisdiction, not having a general power to fine and imprison for contempt, are restricted to such as are committed in their presence, will not alter the rule in the present case. The exercise of this power must necessarily rest in the sound discretion of the magistrate, and as such, is not the subject of review in the circuit court. To this point a train of numerous decisions may be found, but in a case where it is not pretended that the magistrate has exceeded the powers conferred on him by statute, it is not perceived why this principle should not be strictly applied. The reasoning, as to the possible abuse which might grow out of the exercise of the power to punish for contempts, if superior jurisdictions refuse to examine into the correctness of the decision of the magistrate, is readily met by the answer that if he acts maliciously or oppressively, our laws afford an adequate remedy by indictment. We are not, however, without authority on the very point in question, from a tribunal of the highest character in the country. In the case of Kearney, ex parte, 7 Wheaton, p. 88, the supreme court of the United States have said that “ they will not grant a habeas corpus where a party has been committed for a contempt by a court having competent jurisdiction ; and if granted they will not inquire into the sufficiency of the cause of commitment.” The magistrate having had competent jurisdiction to impose the fine, the circuit court properly refused to inquire into the nature of the contempt, and very properly dismissed the appeal. The judgment of the circuit court is therefore affirmed with costs, ,

McConnel, for plaintiff in error.

Ford, state’s attorney, for defendant in error.

Judgment affirmed,.

      Rev. Code of 1827, p. 268.

      Rev. Code of 1827, p. 275.

      Rev. Code of 1837, p. 266.

         The power of punishing contempts is an incident to courts of justice. Trial of Smith and Ogden, 73.

       A writ of error may be sued out of the supreme court to reverse the decision of a circuit court, fining a person for contempt of court Stuart v. The People, 3 Scam., 395. In this case, Breese, J., speaking of the case of Clark v. The People, said: “ I do not think that case decisive of this, for the reason that there the contempt was committed in the presence of the justice of the peace, whilst trying a cause, and the statute gave him power to fine for contempt, in a sum not exceeding five dollars, in such a case, and he had not exceeded his jurisdiction, as the record shows. Besides, no law of the state allowed an appeal in such a case, partaking of a criminal nature, and it was properly dismissed.” And in Ex parte, Thatcher, 2 Gilm., 170, Scates, J., said : “It is indeed denied that any appeal or writ of error lies from its judgment for contempt by any court. I will not undertake to decide the general question, but the power has its limits. The court may not treat any and every act as a contempt, and. I have no doubt that the appellate court may revise and reverse its judgment when it exceeds its jurisdiction, by treating that as a contempt, which in law is no contempt, and can not be. The supervision will be to ascertain that fact.” In Crook et al. v. The People, 16 Ill., 536, the court said: “ In the examination of the merits of the remaining question raised in the assignment of errors, and argument, we would be understood as distinctly waiving any determination, whether a defendant, in a criminal information for contempt, can appeal or maintain a writ of error.” They also held that in such case a party was not entitled to a change of venue.
      In Indiana it was held that courts of record have exclusive control over charges for contempt committed in such courts; and their conviction or acquittal is con elusive. State v. Tipton, 1 Blackf., 166. So in North Carolina. “There can be no revision, either by appeal or certiorari, of the judgment of a court of record for imposing a punishment for a contempt of the court, declared by the record to have been convicted in open court.” State v. Woodfin, 5 Iredell, 199, ib., 149. But if the court states the facts upon which it-proceeds, a revising tribunal may, on a habeas corpus discharge the party, if it appears that the facts do not amount to a contempt. Ib., 149.
      The county commissioners' court had power to punish for contempt. Ex parte, Thatcher, 2 Gilm., 169.
      A justice of the peace who has imposed a fine upon a person for contempt of his court, can imprison him until the fine and costs are paid. Brown v. The People, 19 Ill., 613.
      Contempts of court are either direct, such as are offered to the court, while sitting as such, and in its presence, or constructive, being offered, not in its presence, but tending by their operation to obstruct and embarrass, or prevent, the due administration of justice. A newspaper publication that has not such effect will not be a contempt. Stuart v. The People, 3 Scam., 395.
      The provision of the constitution of the United States, that the trial of all crimes shall be by jury, does not take away the right of courts to punish contempt in a summary manner. The provision is to be construed to relate only to those crimes which, by our former laws and customs had been tried by jury. Hollingsworth v. Duane, Wallace, 77, 106. 5 Iredell, 199.


author:
      Justice Lockwood.
      Justice Smith.

text:
    Adam W. Snyder, Appellant, v. Baptiste Laframboise, Appellee.
    APPEAL FROM ST. CLAIR.
    In a sale of land where there is no fraud and no warranty, the vendee can not recover back the purchase money.

    This court will not protect a party who stands by and permits improper testimony to go to the jury.
    The rule of law is, that where there is a community of interest and design, the declarations of one of the parties is evidence against the rest, and this rale is not confined to cases of civil contract.
    The rule in relation to the charge to the jury is, that it be positive and specific, and that nothing be left to inference.

    A party who takes a quitclaim deed on the sale of land, runs the risk of the goodness of the title.
    Where there is a total failure of title on a sale of land, and no circumstances are proved to induce a jury to believe that the vendor has acted dishonestly, it is not prima facie evidence of fraud.

       The doctrine is well settled, both in law and in equity, that on a sale of land, where there is neither fraud nor warranty on the part of the vendor, the vendee can not recover back the purchase money, although there may be a total failure of title. Doyle et al. v. Knapp, 3 Scam., 334. Owings v. Thompson et al., id., 509. A quitclaim deed is a sufficient consideration. Bonney v. Smith, 17 Ill., 531.

       See note 2, to the case of Humphrey v. Collier et al., ante, p. 297.

   Opinion of the Court by

Justice Lockwood.

This was an action of assumpsit commenced in the St. Clair circuit court by Laframboise against Snyder. The declaration contains the common money counts to which the defendant below pleaded non assumpsit. On the trial of the cause, the defendant took a bill of exceptions containing the evidence and the charge of the judge. From the bill of exceptions it appears that the plaintiff below purchased a tract of land of the defendant and one Louis Pingonneau, for which he paid one hundred and fifty dollars, and received from them a quitclaim deed, in which it is stipulated that they do not wai'rant the land against the claims of any person but themselves. It was also proved that defendant below had no title to the premises. The plaintiff further proved by a witness “that after the sale and purchase, said Pingonneau told witness that he, said Pingonneau, had understood plaintiff did not wish to trade with Snyder for the land, as he was afraid he, Snyder, would cheat him, being a lawyer; that plaintiff preferred trading with said Pingonneau; that plaintiff1 2would find that he, Pingonneau, could cheat as well as defendant; and that Pingonneau admitted to witness that the legal title to the said land was in the heirs of one Augustin Pingonneau ; that if plaintiff would give fifty dollars more, he, Pingonneau, would make plaintiff a warranty deed, as he could let Augustin Pingonneau’s heirs have other lands for it.” The defendant was not present when these statements were made by Pingonneau. Some testimony was adduced on the part of the defendant which it is unnecessary to notice. After the testimony was produced, the defendant moved the court to instruct the jury, that if there was no fraud practised by defendant, nor any false affirmation as to his title, the plaintiff could not recover ; and further, where there is no false affirmation or fraud in a sale of lands, the purchaser can not recover back the purchase money, and that in the sale of land where there is no fraud, the maxim of caveat ernptor applies. The court, however, instructed the jury, that if they were satisfied from the evidence that Snyder and Pingonneau sold a title to the land, either legal or equitable, when in truth they had no title of either kind, or that they, or either of them, deceived the plaintiff as to the title, they should find for the plaintiff; but if they were satisfied from the evidence that Snyder and Pingonneau did not deceive the plaintiff as to the nature of the title, they ought to find a verdict for the defendant. To all of which instructions the defendant, by his counsel, excepted. A verdict was found for plaintiff, and judgment rendered thereon. Several errors have been assigned, and under them it was urged that a part of the testimony ought not to have been permitted to go to the jury, and that the instructions were not such as the defendant was entitled to, and was prayed for. The court in examining the bill of exceptions, do not find that the testimony was excepted to on the trial. If a party permits improper testimony to go to the jury without objection, the reasonable presumption is, that it was received by consent. In the event that a verdict should be found on such testimony, the proper remedy is by a motion for a new trial, and the case must be a strong one where this court will interfere to protect a party who stands by and permits improper testimony to be given to the jury. The court feel themselves called on to condemn the practice that seems to prevail extensively, to suffer illegal testimony to be given to the jury, and then rely upon the skill of counsel to extricate his client from the effect of such testimony. This course leads to much embarrassment, and frequently presents much difficulty in distinguishing between the province of the court and jury. In this case the court feel no hesitation in declaring that the evidence of the delarations of Pingonneau under the circumstances were not evidence against the defendant, and no doubt exists that, had the court below been called on to take this evidence from the jury, that it would have been withdrawn, and in that event no verdict could have been given for the plaintiff. The rule of law on this point is, that where there is a community of interest and design, the declarations of one of the parties is evidence against the rest, and this rule is not confined to cases of civil contract. It is indeed true, that in general, the declarations or admissions of one trespasser or other wrong-doer is not evidence to affect any other person, for it is merely res inter alios, but where it has once been established that several persons have entered into the same criminal design with a view to its accomplishment, the acts and declarations of any one of them, in furtherance of the general object, are no longer to be considered as res inter alios with respect to the rest. They are identified with each other in the prosecution of the scheme; they are partners for a bad purpose, and as much mutually responsible as to such purpose, as partners in trade are for more honest pursuits, and may be considered as mutual agents for each other. Where an unity of design and purpose has once been established in evidence, it may fairly and reasonably be presumed that the declarations and admissions of any one with a view to the prosecution and accomplishment of that purpose, convey the intentions and meaning of all; and this seems to be the general rule in the case of trials for conspiracies, and other crimes of a like nature. 2 Starkie on Ev., 47. It was urged on the argument that Snyder and Pingonneau ought to be considered as partners, and consequently the admissions of either be evidence against the other. The court are, however, of opinion that this action can not be sustained on this principle. The plaintiff’s right to recover in this case depends upon the question whether the defendant and Pingonneau were guilty of fraud in selling the land mentioned in the deed. Even in equity a vendee has no remedy on the ground of failure of title, if he has no covenants and there is no fraud. Chesterman v. Gardner, 5 Johns. Ch. Rep., 29. Gouveneur v. Elmendorf, ibid, 79. And the fraud must exist at the time of the execution of the deed or lease, and not fraud in a subsequent and distinct transaction.

Testing this case by the above principles, there is an absence of evidence of any concerted design between Snyder and Pingonneau to defraud the plaintiff below. The declarations of Pingonneau being made subsequent to the execution of the deed, and in the absence of Snyder, and there being no evidence of concerted design, must be considered as admissions res inter alios, and consequently, hearsay, and inadmissible as evidence.

But ought the court to reverse the judgment because of the inadmissibility of this evidence? Were there no other objections to the judgment, the court might well doubt whether they ought to interfere; but on examining the charge of the judge, they are of opinion that it is not as specific and certain as it ought to have been. The rule in relation to the charge to the jury is, that it be positive and specific, and that nothing be left to inference. From what the judge said in the first part of the charge, the jury may have inferred that if they believed that Snyder and Pingonneau had no title to the land sold, that the plaintiff had a right to recover ; yet from the latter part of the charge, the jury might have an equal right to infer that the plaintiff had no right to recover, unless Snyder and Pingonneau had deceived the plaintiff as to the nature of their title. The charge then, as preserved in the bill of exceptions, does not convey to the jury distinctly the precise rule that is to govern them in their deliberations. The court are of opinion that the?judge should have instructed the jury that the defendant was not liable to refund the money paid in this case, unless the defendant, previous to the sale, affirmed what he knew to be false in relation to the title to the land, or concealed some material fact in relation to the title, or used some fraudulent means to induce the plaintiff to accept a deed without covenants of "warranty; that a party who takes a quit claim deed on the sale of land, runs the risk of the goodness of the title, unless some fraud has been practiced upon him. Inasmuch then as the charge may have had an improper influence on the jury, the judgment must be reversed with costs, and the cause remanded to the St. Clair circuit court, for further proceedings.

See the cases of Livingston et al. v. Maryland Insurance Company, 7 Cranch, 506. 11 Wheaton, 59, as to the manner of charging a jury.

Separate opinion of

Justice Smith.

I concur in the reversal of the judgment in this cause, on the ground that it is possible the jury may have decided against the defendant on the simple ground of a failure of title in Snyder and Pingonneau, without considering it essential that there should have been evidence of fraud against him.

I hold the doctrine correct, that where there is a total failure of title in a case like the present, and no circumstances are adduced to induce the jury to believe that the vendor has acted dishonestly in the sale, but are left to infer that he may have sold under a mistaken impression of his title, that such sale is not prima facie evidence of fraud, and that it is necessary, to entitle a party to recover, to show facts sufficient to warrant inferences of fraud. From the general character of the charge, and the fact of the qualification in it, (being in the disjunctive) it may have led the jury to the simple inquiry, whether Snyder had title or not, and as none was shown, on the trial, they may not have inquired into the question of fraud. That an individual may execute a release for a valuable consideration, for a supposed interest in lands, when in truth he may have no title, either legal or equitable, and not be liable to refund, will depend upon the honesty with which he acts. Should he conceal facts, or misrepresent others necessary to a correct understanding of his title, it can not be doubted that he would be liable.

Breese and Semple, for appellant.

Blackwell, for appellee.

In the present case it does not appear that Snyder was guilty of either a suppression or a misrepresentation of the manner in which he deduced his title to the lands in question. I had great doubts on the motion for a new trial, whether it ought not to have been granted, but as the evidence of Pingonneau’s declarations were not objected to on the trial, and the whole evidence had been weighed by the jury, whose peculiar province it alone was to determine its character and force, I did not feel disposed to disturb the verdict. Upon reflection, I am now satisfied that the confessions of Pingonneau were not evidence, that they must have had great weight with the jury in determining their verdict, that there was no evidence connecting Snyder’s acts with those confessions, and when Snyder was not present, and that a possible indistinctness in the charge given may have had its effect upon the jury to lead them away from the question of fraud in selling the lands in controversy. I believe, for the purposes of justice, that the reversal of the judgment will be but right, all circumstances considered, and therefore concur in the reversal,

Judgment reversed.

         The civil law bound every man to warrant what he sold, albeit there be no express warranty; but the common law does not, without a warranty in deed or in law, for the rule is, caveat emptor. Co. Litt., 102. 4th Dane’s Dig., p. 327.
      In a sale of lands, the maxim of caveat emptor applies. Boyd v. Bopst, 2 Dallas, 91.
      A purchaser of real estate can not recover back the purchase money in an action for money had and received, in case the title proves defective, unless there be fraud or warranty. Dorsey v. Jackman, 1 Serg. and Rawle, 42.

        Between the sale of goods and of land, there is a marked distinction. In the former, the law implies a warranty of title, but not in the latter. Ibid.
      An action will not lie to recover back a sum of money paid in consideration of the assignment of á mortgage, although it turned out to be a forgery. Bree v. Holbeck, Doug., 655.


text:
    Thomas Allison and others, Appellants, v. Thomas P. Clark, Appellee.
    APPEAL FROM MORGAN.
    Upon principles of natural justice, a person ought not to be compelled to part with his title to land, until he has received the amount which he had contracted to take for it, nor should a person receive a title until he has paid what he agreed to pay for it.

    Clare exhibited his bill in chancery in the Morgan circuit court, at the April term of 1829, against the appellants, to compel the specific performance of a contract to convey a tract of land in the county aforesaid. The bill charges that the Allisons, on the 16th of February, 1826, executed their bond to the complainant, to convey to him a tract of land, upon the condition that the complainant paid them 207 dollars on or before the last day of February, 1827, the conveyance to be made on the day the money was stipulated to be paid. The complainant, in his bill, stated that on the last day of February, 1827, he was ready and willing to pay the purchase money, and that on the 27th of May, of that year, he did pay the money to Adam Allison for the defendants, but that the defendants refused to make the conveyance, and sold and conveyed the land to another person, (who was made defendant,) who had notice of the claim. The bill prays for a decree against the defendants for a conveyance to complainant.
    The Allisons severally answered the bill, denying the payment of the purchase money, and set up a new and different contract in avoidance thereof, which was evidenced by the note of said Clark to the Allisons, executed since the 27th of May, 1827, and which, the Allisons contended, was part of the purchase money originally contracted to be paid, but which remained unpaid. The depositions taken by complainant, together with the receipts of the Allisons, proved the payment of the notes first executed by Clark to the Allisons. The Allisons contended that the note subsequently executed by Clark to them, which they produced and proved, was evidence of a new contract yet unperformed on the part of Clark, the complainant. The circuit court, on a final hearing of the cause, rendered a decree in favor of the complainant for a conveyance of the land, as prayed for in the bill, from which decree the Allisons appealed to this court.

       The true rale, in cases of dependent covenants, such as agreements to pay at a certain time, and thereupon the lands to be conveyed, is undoubtedly this : that the vendor can not sue for the consideration money until he has tendered a deed, nor can the vendee claim a deed until he shows himself ready to pay. The vendor can not be compelled to part with the deed, but he must have it ready to be delivered as soon as the money is paid; both are concurrent acts. Murphy v. Lockwood, 21 Ill., 617, and cases there cited.

   Opinion of the Court by

Justice Smith.

From a consideration of the facts disclosed by the bill, answers and testimony, in this cause, it is in some degree questionable, whether the decree ought to be disturbed. Taking the whole facts, however, in favor of the appellants, as disclosed, they can not amount to more than substantiating the belief that the note remaining unpaid, and which, it was contended, was substituted for the original, is still due, and that before the land was to be conveyed, that note, amounting to 179 dollars, was to have been paid on the first of January, 1828. The question of the justice of the decree in the circuit court will turn then on the single point, whether that court should have required the payment of that note before it decreed a conveyance of the land in question. The court below must have considered this point of the appellants’ answers, as matters in avoidance of the allegations of the bill, and as such, requiring proof, before it could adopt the conclusion that this note was substituted for so much of the original consideration. It is really questionable, whether it ought not to be so considered. If it be right so to understand it, the decree ought to stand untouched; but the better construction would seem to be, that this note was given for a part of the original consideration for the lands; and that upon its payment, the lands were to be conveyed to Clark. The principles of natural justice would seem to require that the appellants ought not to part with their title to the land until they had received the amount for which they had contracted, and that equally so, the appellee ought not to receive a title until he had paid for the same the amount agreed on. The transaction between the parties is by no means free from obscurity and doubt. Upon the whole, it is the opinion of the court, that equal justice to the parties requires a modification of the decree, so that each shall obtain his rights. The decree is to be modified in this court, so as to require the complainant in the bill to pay the note of 179 dollars, with the interest due thereon to this time, and upon which, the defendants in equity are to convey the lands in the manner stated in the decree of the circuit court, and the costs in this court, and in the court below, are 'to be divided between the parties, each paying in those courts, his own costs.

Thomas, for appellants.

McConnel, for appellee.


author: Justice Browne.

text:
    Hypolite Rolette, Appellant, v. Lemon Parker, Appellee.
    APPEAL FROM JO DAVIESS.
    A tenant in common of a chattel who. sues for a conversion of the same, is entitled to recover damages for his share or interest only.
   Opinion of the Court by

Justice Browne.

This was an action of trover and conversion brought by Lemon Parker against H. Rolette. The plaintiff below derived his title from the following bill of sale, viz.:

Know all men by these presents, that I, William Kelly, in consideration of four hundred dollars to me paid by Parker and Tilton, do hereby sell, alien and convey to Lemon Parker, four yoke of oxen, with the yokes and chains belonging thereto. The condition of the above sale is such that I, the said William Kelly, stand indebted to the above named Parker and Tilton in the above named sum; now, if the above debt is canceled within one year, then the above sale to be null and void, otherwise to remain in full force and virtue; and it is further agreed between the parties, that the said Parker and Tilton are to loan me the said team without charge, and to furnish hauling for the said team to the amount of said debt.

Signed, Wm. Kelly, [seal.]

July 11, 1829.

The defendant, by his counsel, moved the court to instruct the jury, that if they believed that William P. Tilton was interested in the contract between Kelly and Parker for the oxen, &c., they should find a verdict for the plaintiff for his share or interest only. Other instructions were prayed for, which will not now be noticed. I am of opinion, that the court below erred in refusing the instruction as asked for, for which reason the judgment must be reversed with costs, and the cause remanded to the circuit court.

Ford, for appellant.

J. B. Thomas, Jr., for appellee.

From this opinion, Justice Smith dissents.

Judgment reversed.

       In actions for torts, the non-joinder of persons interested with the plaintiff, must be pleaded in abatement, and can not be taken advantage of on the trial, otherwise than in mitigation of damages; and in such case, if the defendant, omit to plead the non-joinder in abatement, the plaintiff may have judgment for his aliquot share of the damage sustained. Edwards v. Hill, 11 Ill., 22. But in an action to recover a specific penalty, given by statute, which does not rest in computation, such as an action to recover the penalty for cutting timber, the owners of 'the land must all join in the action. Ibid.


text:
    Joseph Johnson, Plaintiff in Error, v. The People, Defendant in Error.
    ERROR TO MADISON.
    A fine against a retailer of spirituous liquors for selling without a license by a less quantity than one quart, can not, under the act of 1827, exceed ten dollars.
   Opinion of the Court by

Justice Browne.

This is a writ of error sued out to reverse a judgment of the circuit court of Madison county. At the October term, 1829, an indictment was preferred against the plaintiff in error, for retailing spirits by a less quantity than one quart, in violation of the statute. At the same term following, he was tried, and found guilty, and the court thereupon imposed a fine of twelve dollars against him. A motion was made by his counsel to arrest the judgment, which the court overruled. The statute of 1827, page 150, section 127, is in the following words: “ Every person not having a legal license to keep a tavern, who shall barter, exchange or sell, any wine, rum, brandy, gin, whiskey, or other vinous, spirituous, or mixed liquors, to any person or persons, by a less quantity than one quart, shall, on conviction, be fined ten dollars.” I know of no statute in force imposing a greater fine for the offense of retailing spirits without a license than the one referred to. The court, therefore, erred in rendering the judgment and imposing a fine of twelve dollars, for which error it must be reversed.

Semple, for plaintiff in error.

Cowles, state’s attorney, for defendant in error.

Prom this opinion, Justice Smith dissents.

Judgment reversed.

       Chief Justice Wilson did not sit in this cause.


text:
    William Bennet and Jacob Judy, Appellants, v. Philip Schermer & Co., Appellees.
    APPEAL FROM JO DAVIESS.
    When the whole record on its face is so imperfect as not to warrant the entering' of the judgment, it will be reversed.
    The appellees brought an action of assumpsit in the court below against the appellants, on a promissory note. The declaration contained but one count. The appellants pleaded a failure of consideration, to which there was a demurrer, which was sustained as to the declaration, and leave given to amend it. The amendment was not made. A plea of non assumpsit was afterwards filed and issue taken thereon. There was then filed a special plea of failure of consideration, to which there was a demurrer and joinder. A plea of payment, and of set-off, to which there was also a demurrer and joinder. These demurrers not having been disposed of, the appellees replied, traversing the pleas of failure of consideration and payment, upon which an issue was made up, and demurred to the plea of set-off, which was sustained, and no further answer to it. In this state of the case, a jury came, who found a verdict for the appellees. A motion was made for a new trial which the court overruled, and judgment entered on the verdict for the appellees, to reverse which judgment an appeal was taken to this court, and the appellants assigned for error, among others, the following, viz.: That after the plaintiff’s demurrer to the defendant’s first plea was sustained as to the declaration, and leave was granted to amend it, the court permitted the cause to go on to trial without any amended declaration, and that the court gave judgment for the appellees on the issue found by the jury, when there were several issues of law undisposed of, and the plea entirely unanswered.

      Cavarly and Semple, for appellants.

      Ford, for appellees.
   Opinion of the Court by

Justice Smith.

The extremely imperfect condition of the record in this cause shows that it is impossible to determine the real merits of the points presented to the court. The whole presents a confused mass of pleadings, with leave to amend some, which amendments were never made; demurrers to others appear to be undecided, and issues appear to have been made up, and again abandoned on several points. The whole record can not warrant the entering of a judgment on its face; and this court are bound, for these reasons alone, to reverse the judgment. The court take this occasion to remark on the generally imperfect state of records brought up from the Jo Daviess circuit court, and to intimate the absolute necessity of the proceedings from that court being, hereafter, presented in a more perfect state. It is hoped that the parties hereafter interested in causes brought here for a review, will profit from the intimation here given. Let the judgment be reversed, with the directions to the court below, to proceed de novo in the cause, and the appellants here, recover their costs.

Judgment reversed.

       See Mason v. State Bank, ante, 183.


text:
    John Doe, ex dem. Noblet Herbert, Thomas Janney and John D. Brown, Plaintiffs, v. John C. Herbert, (Chas. Louviere, Tenant,) Defendants.
    AGREED CASE FROM RANDOLPH.
    Prior possession is evidence of a fee, and although the lowest, unless rebutted by higher, it must prevail.

    A prior possession short of twenty years under a claim of right will prevail over a subsequent possession of the same time where no other evidence of title appears on either side.
    A prior possession of less than twenty years without any other evidence is prima facie evidence sufficient to put the tenant on his defense.
    Where the title to land is divested by operation of law, as in sales under execution, the possession of the defendant can not be considered such an adverse possession as to defeat the deed and render it inoperative.
    A grantor in a deed who has no interest in the suit, and who has made no covenants, upon general principles, is a competent witness.
    To render a deed for land valid and effectual, there must be both a delivery and acceptance of the deed. A deed not delivered and accepted, though recorded, passes no estate.

    The record presented the following state of facts. Ninian Edwards had peaceable possession of the premises in question in 1810, and continued it until the sale to Thomas E. Herbert by deed duly executed and recorded, bearing date the 7th day of September, 1818, which was produced and read in evidence. T. E. Herbert immediately upon the purchase, went into peaceable possession under his deed from Edwards, and remained in possession until his death which happened in 1821. The plaintiffs also produced in evidence a deed regularly executed and recorded from Charles Slade, administrator of said T. P. Herbert, bearing date the 23d day of July, 1823, conveying to the lessors of the plaintiff the premises in question, to whom he had sold the same under the authority of, and in compliance with an act of the general assembly of the state of Illinois, entitled “ An act authorizing the administrator of Thomas F. Herbert, deceased, to sell certain lands,” approved Dec. 19,1822. The plaintiff also proved that Charles Louviere was in possession of the premises at the time of the service of the declaration and notice, and here the plaintiffs rested their case. The defendant then moved the court for a nonsuit on the ground that the plaintiffs had not produced sufficient evidence of title to put the defendant on his defense, which motion the court overruled. The defendant then produced in evidence the record of a deed from T. F. Herbert, to John 0. Herbert, bearing date the 29th of September, 1818, for the premises in question, which deed was not attested by any subscribing witness, but was acknowleded before a justice of the peace for Randolph county, within which county the premises are situate, and recorded in the recorder’s office for said county, on the 15th day of January, 1819. This deed was objected to by the plaintiffs, on the ground that it was not executed in conformity with law, having no subscribing witness, and on the further ground that it had not been delivered by the grantor, and accepted by the grantee ; and to sustain this latter objection, the plaintiffs proved by Charles Slade, the administrator aforesaid, (whose testimony was objected to by the defendant on the ground that he was the grantor, as administrator, in the deed under which the plaintiff claimed, but who deposed that he had no interest in the event of the suit, and his deed to plaintiffs contained no covenants,) that he had found the deed from Thomas F. Herbert to John 0. Herbert, among the papers of the said Thomas, after his death. The original deed from T. F. Herbert to J. 0. Herbert was not produced, nor was it proved that it was ever in the possession of J. 0. Herbert, nor was it proved where the same was. The defendant then proved that T: F. Herbert was indebted to the said J. C. Herbert in the sum of $1,200, and that at the time of the execution .of said deed, he had incurred further responsibilities for the said T. F. Herbert as his security amounting to more than $3,000, that they were brothers, and that 0. Slade, the administrator of T. F. Herbert, permitted the said J. C. Herbert, by his agent, to take possession of the premises and receive the rents, who had continued the possession ever since.
    Upon this state of facts, the circuit court gave judgment for the lessors of the plaintiff, which, by consent, was subject to the opinion of the supreme court.

       In actions of ejectment, and for injuries to the inheritance, the possession of a tract of land by a party, claiming to be the owner in fee, is prima facie evidence of his ownership and seizin of the inheritance, and throws upon his adversary the burden of rebutting the presumption thus raised. Mason v. Park, 3 Scam., 532. Davis v. Easley et al., 13 Ill., 198.
      Whoever is in the actual possession of land, claiming the fee, is presumed to own it, until the contrary appears; and may maintain an action for an invasion of his possession against any one but him who holds the legal title, or right of possession. Brooks v. Bruyn, 18 Ill., 539.
      Possession of land is sufficient to entitle a party to maintain an action on the case against one who has so constructed his mill-dam as to overflow the plaintiff’s land. Stout v. McAdams, 2 Scam., 68.
      Possession of a ferry franchise, for a term less than twenty years, is not evidence of a grant, or of a right to the same. Mills et al. v. County Com’rs St. Clair Co., 3 Scam., 56.
      Possession and occupancy, when applied to land, are nearly synonymous terms, and may exist through a tenancy. Walters v. The People, 21 Ill., 178.
      Where possession of land alone is relied on for any legal purpose, in the absence of paper title, it should be an actual occupancy of the premises in question. Webb v. Sturtevant, 1 Scam., 181. Ill. Mutual Fire Insurance Co. v. Marseilles Man. Co., 1 Gilm., 266.
      Where two lots were claimed by a party, and improvements were made on one, but the lots adjoined; the court held the occupancy extended to both. Prettyman et al. v. Wilkey et al., 19 Ill., 235.

       It is everywhere conceded that delivery is necessary to the validity of a deed. Hulick v. Scovil, 4 Gilm., 159, and cases there cited. But delivery may be made in various ways, and in some cases will be presumed, indeed in most cases, until the contrary is shown by evidence. In case of delivery to a stranger, without authority from the grantee to accept it, the acceptance by the grantee at the time of delivery will be presumed under the following circumstances : 1. That the deed be, upon its face, beneficial to the grantee; 2. That the grantor part entirely with all control over the deed; 3. That the grantor, (except in cases of an escrow,) accompany the delivery by a declaration, intention, or intimation, that the deed is delivered for and on behalf and to the use of the grantee; 4. That the grantee has eventually accepted the deed and claimed under it. Hulick v. Scovil, supra.

      These further propositions are well established by the courts :
      1. That although a deed may, under certain circumstances, be presumed to have been delivered by the grantor to the grantee and accepted by him, yet this presumption may be overcome by evidence which shows that there was no delivery or acceptance. Hulick v. Scovil, 4 Gilm., 159. Bryan v. Wash, 2 Gilm., 564. Ferguson v. Miles, 3 Gilm., 363. Wiggins v. Lusk, 12 Ill., 132. Hines v. Keighblinger, 14 Ill., 471.
      2. That where a grantee claims under a deed, and has it in his possession, this raises a presumption of a delivery and acceptance. Id.
      3. A deed can not become operative by a delivery after the death of the grantor. Wiggins v. Lusk, supra. Barnes v. Hatch, 3 N. Hamp., 304. Hale v. Hills, 8 Conn., 39. Stilwell v. Hubbard, 20 Wend., 44. Baldwin v. Maultsby, 5 Iredell, 505.
      4. If a deed is made by A. to B. and deposited with C., to bo delivered to B. on the death.of A., the deed will take effect from the delivery to C. Belden v. Carter, 4 Day, 66. Ruggles v. Lawson, 13 Johns., 285. Foster v. Mansfield, 3 Metcalf, 412. Goodell v. Pierce, 2 Hill, 659. Tooley v. Dibble, id., 641.
      In Freeman’s Digest, p. 1173, the case of Hines v. Keighblinger, 14 Ill., 471, is cited as conflicting with the case of Herbert v. Herbert; but on examination, I apprehend it will be found not to be the case. That the possession by the grantee of a recorded deed is prima facie evidence of a delivery, is undisputed, and is the point decided in the case of Hines v. Keighblinger. But when the possession of the deed is retained by the grantor, without proof of delivery, it is quite as well settled that the deed is inoperative, and the fact that it has been recorded is not presumptive evidence of delivery. In Wiggins v. Lusk, 12 Ill., 132, the deed had. been recorded, but was found, at the death of the grantor, among his papers. It was held by the court that it was insufficient to convey the title; and the case of Herbert v. Herbert, was cited and approved.

   Opinion of the Court by

Justice Smith.

Under the agreed case, upon which this cause has been presented to this court, four questions are to be considered:

1. Was the motion in the court below for a nonsuit, properly overruled ?

2. Was the execution of the deed of Slade, as administrator of Herbert, valid; and did the title to the lands in question pass thereby ?

3. Was the grantor, Slade, a competent witness on trial?

4. Was there a due execution and delivery of the deed by Thomas F. Herbert to John C. Herbert?

The action of ejectment is considered in reality as an action of trespass, adding thereto an execution by which the prevailing party obtains the possession of the thing itself. The plaintiff must prove property in himself, or a right of possession— he may try the title or not, and if he does not desire to adduce his title, he may try nothing but the right of possession. Prior possession is evidence of a fee, and, although the lowest, unless rebutted by higher, it must clearly prevail. It is equally well settled, that the lessor of the plaintiff must recover on the strength of his own title. Let these principles be applied to the case before us, and inquire upon what evidence the court below overruled the motion for a nonsuit. It appears from the case, that it was proven that N. Edwards, through whom the title in question is asserted, had peaceable possession of the premises as early as 1810, and continued it, without any chasm, until the sale to Thomas F. Herbert, on the 7th of September, 1818; that Herbert, immediately upon the purchase, went into peaceable possession, and died in possession in 1821. A deed regularly executed by Charles Slade, the administrator of Thomas F. Herbert, of the date of the 23d May, 1823, conveying to the lessors of the plaintiff the land in question, which had been duly recorded, was produced, and to whom he had sold the same under the authority of and in compliance with a law of this state, approved 19th December, 1822. The plaintiff also proved that Charles Louviere, the tenant, was in possession at the time of the service of the declaration, and here rested his case.

The supreme court of the state of New York have said, that title may be inferred from, ten yea/rs1 possession, sufficient to put the defendant on his defense. Smith ex dem. Teller v. Burtis and Woodward, 9 Johns. Rep., 197; and that a prior possession, short of twenty years, .under a claim of right, will prevail over a subsequent possession of less than twenty years, when no other evidence of title appears on either side. There are several decisions of that court which sustain this doctrine. Smith v. Lorillard, 10 Johns. Rep., 355. Jackson v. Myers, 3 do., 388. Jackson v. Harder, 4 do., 202.

The proof here adduced was prima facie evidence both of title and of right of possession, and was sufficient to put the defendant on his defense. It was not necessary that the plaintiff should have shown a possession of twenty years, or a paper title. His possession as proved, was presumptive evidence of a fee, and was conclusive on the defendant, until he showed a better title. Upon this state of the case, the mere naked possession of the defendant could not prevail against it. There can, then, be no doubt, that the motion, for a nonsuit was properly overruled. The next point to be considered, is the validity of the deed of the administrator, executed by virtue of a law of this state, and the effect thereof.

T. F. Herbert having died in 1821, between that time and the making of the deed by the administrator in 1823, by consent of the administrator, John C. Herbert, by his agent, took possession of the premises in question, and continued up to the present time. It is then contended, that the administrator being out of the possession of the lands, at the time of making the conveyance, that it is therefore void. Hpon the death of Herbert, the estate in the premises passed to his heirs, and the legislature having by a law authorized the sale of the premises by the administrator, we think it not important to inquire whether the administrator was in or out of the actual possession of the land, at the time of making the conveyance by him. It may be doubted whether the possession of Herbert was such an adverse possession as would have rendered' a conveyance by the heirs void; but the law of the' legislature must be considered as a paramount authority, and it being admitted that the conveyance has been made agreeably to the provisions of that law, the estate of which Herbert died seized, passed by that deed, and it was well exeexited, and not void because of the possession of the agent of John C. Herbert. Where the title is divested by the operation of law, as in sales under execution, the possession can not be considered such an adverse possession as to defeat the deed and render it inoperative. Jackson v. Bush, 10 Johns. Rep., 223. The inquiry as to the competency of Slade, the administrator and grantor of the deed to the lessor of the plaintiff, will be now considered.

It is apparent that Slade had no interest in the decision of the cause; he had entered into no covenants upon which he could be liable; upon general principles, then, he was a competent witness, and the rule that all persons not affected by crime or interest are competent witnesses, must prevail. This is not a question of the admissibility of the maker of an instrument to impeach it, or destroy it for want of a consideration, or for fraud. Though even in such a case, the grantors in a deed have been admitted in an action of ejectment, in the supreme court of Massachusetts—that court deciding that the exception made, applies alone to negotiable instruments, which, upon principles of public policy and morality, ought not to be suffered to be impeached. Loper v. Haynes, 11 Mass. Rep., 498.

In the present instance, Slade was not offered to prove any fact in connection with the execution of his deed as administrator, but collateral facts affecting the deed from Thomas F. Herbert to John C. Herbert. His admissibility, then, depended entirely upon his interest in the event of the suit, and standing indifferent in that respect, he was properly admitted to testify.

The last and remaining question, and most important one in the case, is, whether there was a delivery of the deed from T. F. Herbert to John C. Herbert. The objection to it is, that it was never delivered by the grantor to the grantee, nor to any other person for his use, nor was there any acceptance by the grantee. The facts disclosed in relation to this deed are, that it was found among the papers of Thomas F. Herbert, after his death, by Slade, his administrator; that the deed had never been in possession of the grantee, the administrator having, after its discovery, delivered it to a third person, and that the administrator did not know where it was. The original deed was not produced in evidence, nor its absence accounted for; but the records of the county, which showed that the deed had no subscribing witness, was acknowledged before a justice of the peace, bore date on the 29th of September, 1818, and was recorded on the 15th of January, 1819. The defendant proved that Thomas F. Herbert was, in 1812, indebted unto the grantee, John C. Herbert, in the sum of $1,200, and that he had been compelled to pay as security for Thomas F. Herbert, more than $3,000 since that time.

From this state of facts it is to be determined whether there was a delivery and acceptance of the deed to John G. Herbert.

It is most manifest that there could have been no delivery of the deed to the grantee, so as to pass the estate. The act of recording a deed can not amount to a delivery, when there does not appear an assent or knowledge by the grantee of the act. In this case, there is not a scintilla of evidence calculated to lead the mind to the belief that the grantee ever knew of the existence of the deed until after the death of the grantor. There could then have been no acceptance by the grantee, because the possession of the deed, if such had been the fact, derived after the death of the grantor, could not amount to one, there having been no delivery during the life of the grantor. That it is essential to the validity of a well executed deed, that there should be a delivery, will not be controverted. This delivery is said to be either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing, or it may be both; but by one or both of these, it must be made, for otherwise, though it be never so well sealed and written, yet is the deed of no force.

Breese, for plaintiffs.

Kane and Baker for defendants.

“ It may be delivered to the party himself to whom it is made, or to any other person by sufficient authority from him, or it may be delivered to a stranger for, and in behalf, and to the use of him for whom it is made without authority, but if it be delivered to a stranger without any such declaration, unless it be delivered as an escrow, it seems that it is not a sufficient delivery.” Jackson v. Phipps, 12 Johns. Rep., 419. 1 Shep. Touch., 57, 58. 2 Black. Com., 307. Viner’s Abr., 27, § 52.

It is also held to be essential to the legal operation of the deed that the grantee assents to receive, and that there can be no delivery without an acceptance. Indeed, a delivery of a deed, which is essential to its existence and operation, necessarily imports that there should be a recipient. Now, in this case, it would be idle to contend that there was a delivery and reception, when the grantor died before the grantee knew of the existence of the deed ? he could not then receive that of the existence of which he had no knowledge, nor could there have been a delivery to him without such an acceptance. There had been no act on the part of the grantor before his death, tantamount to a delivery, much less an actual one. The act of recording does not amount to it, because there appears a total absence of knowledge, on the part of the grantee, of such recording, or even of the existence of the deed until after the death of the grantor, and it does not appear that he had ever received the deed. The case of Jackson v. Phipps, 12 Johns. Rep., 419, before referred to, and Maynard v. Maynard and others, 10th Mass. Rep., 457, are directly in point, and sustain the principles here laid down. Without then inquiring whether the deed was fraudulent, it is sufficient to ascertain that the deed was never well executed by delivery, and that no estate passed théreby. The judgment is therefore affirmed with costs,

Judgment affirmed.

      Vide Duncan v. Morrison and Duncan, ante, p. 151, and the cases there referred to in note.

         Delivery is essential to the validity of a deed. 2 Stark, on Ev., 476, 477. Co. Litt., 36. (a) 2 Bl. Com., 306, 307.
      The delivery of every deed must be proved, as well as the execution of it, being an essential requisite to its validity. Jackson v. Dunlap, 1 Johns. Cases, 114. 2 Day’s Rep., 280. 3 Dane’s Dig., 356, § 21.
      A formal delivery is not essential if there be acts evincing an intention to de» liver. Goodrich v. Walker, 1 John’s Cases, 250. Verplanck v. Story et uxor, 12 Johns. Rep., 536.
      A delivery is essential to the validity of a deed, and there can be no delivery without an acceptance by the grantee. Where A., residing in this state, agreed with B., in Massachusetts, to give him a deed of his farm as security for a debt, and A., on his return home, in 1808, executed and acknowledged a deed to B., and left it in the clerk’s office on the same day to he recorded; neither the grantor nor any person in his behalf being present to receive the deed, and the grantee died in 1809, and in 1810 A. sent the deed to the son and heir of the grantee: it was held there was no delivery of the deed. Jackson v. Phipps, 12 Johns. Rep., 418.
      A. signs and seals a deed conveying land to his son, and leaves it with the scrivener with directions to get it recorded, which was done, and the deed at the grantor’s request, still retained in the scrivener’s hands until the death of the son, when the father reclaimed and canceled it, the son having known nothing of the transaction. It was holden that the father was still entitled to the land, as against the heirs of his son, the conveyance having never been perfected by a delivery of the deed. Maynard v. Maynard and others, 10 Mass. Rep., 456.
      If one convey lands to pay his debts, yet keeps the conveyance, this is fraudulent. 1 Dane’s Dig., Ch. 32, Art. 13, § 6.
      The grantor in a deed not being interested in the event of the suit, is a competent witness to show that the deed was fraudulent. Loper v. Haynes, 11 Mass. Rep., 498. 3 Dane’s Dig., Ch. 86, Art. 3, § 17 to 22.


text:
    Eli S. Lattin, Plaintiff in Error, v. William A. Smith, Defendant in Error.
    ERROR TO JO DAVIESS.
    A co. so. issued upon a judgment is not void on its face, though it does not recite that the oath required by law to be made was made before it issued, nor is it necessary that a declaration for an escape on such ca. sa. should aver that the oath was made.
    An officer acts at his peril; he is bound to obey the mandate of the writ, and if he proceeds to execute it he is bound to complete the execution of it.
    It is sufficient to justify the officer executing the process, that the magistrate had jurisdiction; he is not bound to examine into the validity of the proceedings or regularity of the process.
    This was an action on the case against Lattin, commenced in the Jo Daviess circuit court by the defendant in error for an escape, to which Lattin pleaded not guilty, with notice of special matter to be given in evidence. The plaintiff below, to maintain his action, produced in evidence a ca. sa. issued by a justice of the peace of Jo Daviess county, at the suit of the plaintiff below against one E. Q. Vance. The counsel for defendant below objected to the introduction of this ca. sa. for the reason that it did not appear on its face that the oath to authorize the issuing a ca. sa. had been made, but the court permitted the same to go in evidence to the jury, to which the defendant below, by his counsel, excepted, and judgment on the verdict being rendered against him after several continuances, he has brought this writ of error, and assigned for error,
    1. That the court erred in permitting the ca. sa. to be read to the jury, because it did not appear on its face that the requisite oath had been made.
    2. That the court erred in entering judgment in November term, 1829, because between that time and the rendering the verdict in the cause, three terms of the court had elapsed which ought to operate as a discontinuance. To these errors there was a joinder.
   Opinion of the Court by

Justice Smith.

The grounds of error insisted on in the present cause, are not sustainable.

The ca. sa. upon which the defendant was arrested, was properly admitted in evidence. It was not void on its face, because of the want of a recital of the necessary oath having been taken to authorize the magistrate to issue it. This court are bound to presume that the magistrate acted in conformity to the laws until the contrary appears, having jurisdiction over the subject matter before him. The court will therefore intend that what ought to have been done, was done, until it be shown to be otherwise. The evidence was therefore properly admitted, and it devolved on the defendant to show that the law had not been complied with if it could have availed him in such an event. The same reasons are equally applicable to the want of an averment in the declaration of the taking of the oaths. Such an averment was altogether unnecessary, being substantially embraced in the averment that the ca. sa. was sued out in conformity to law.

As to the main point which involves the liability of the officer, the rule of law is well settled, that where process is delivered to an officer he acts at his peril; that he is bound to act in conformity with the commands of the writ, and if he proceeds to execute it, he is bound to complete the execution. 1 Gallis., 519, Meecher et al. v. Wilson. It is doubtless true that an action can not be maintained against an officer for not executing void process, or process founded on a void judgment, or suffering a prisoner to escape from such process. But if the proceedings on the judgment on which process is founded, are merely erroneous and not void, he will be liable. Abbe v. Ward, 8 Mass., 9. The magistrate, it is not denied, had jurisdiction of the subject matter; the judgment was regularly entered, and for aught that appears, the oath necessary to have been administered before the ca. sa. could issue, must be presumed to have been taken.

It was sufficient then to justify the officer executing the process, to know that the court had jurisdiction of the subject matter, he was not bound to examine into the validity of the proceedings, or the regularity of the process, and even if it had been erroneous, he would not have been liable as a trespasser for executing it. For this doctrine, the cases of Hill v. Bateman, Stra., 710, case of the Marshalsea, 10 Co., 76, and Warner v. Shad, 10 Johns. Rep., 138.

Ford, for plaintiff in- error.

Cowles, for defendant in error.

The officer having proceeded to take the party into custody, has, it would seem, tacitly admitted the regularity of the process, and his subsequently permitting him to escape and go at large, could not be justified, unless, indeed, the process was not merely voidable, but absolutely void. This not being the fact, we can see no reason why, according to the principles-endeavored to be laid down, he should not be held liable for the damages sustained by that act.

The objection, that a discontinuance in the cause has happened, is not sustainable, because the judgment has been entered nunc pro tunc, and any supposed error on that ground has been thereby cured. The judgment is affirmed with costs. ,

Judgment affirmed.

         Vide Salkeld, 273. Shirley v. Wright, where the sheriff had the defendant in custody upon a ca. sa. issued after the year and a day without a set", fa., and permitted him to escape. It was held the sheriff was liable, and could not take advantage of the error. Vide also, 2 Searg. and Rawle, 152, Lewis, Esq. v. Smith.

       See note to Moore v. Watts et al., 42. Brother v. Cannon, 1 Scam., 201.


author: Justice Smith,

text:
    John Connolly, Appellant, v. Almond Cottle, Appellee.
    APPEAL PROM JO DAVIESS.
    In an action upon a note evidently given to pay the debt of a third person, if there is no consideration for the promise expressed in the note, one should be averred in the declaration, and the want of such averment is fatal.
    A variance between the description of a note and the one produced in evidence is fatal.
    This was an action of assumpsit, commenced in the Jo Daviess circuit court of the term of October, 1828, by Cottle against Connolly on the following instrument of writing :
    “ St. Louis, 27th April, 1821.
    We hereby obligate ourselves to pay or cause to be paid unto the creditors of Samuel B. Smith, the following sums, viz.:
    To Almond Cottle, - - $350 or thereabouts,
    “ Alexander Nash, - - 31 •
    “ Abijali Hull, - 12
    Signed, James Tierna n, by power of att’y. J. Connolly.”
    To the delaration the defendant pleaded non assumpsit generally, and non assumpsit within five years. An issue was made up to the first plea, and to the second there was a dedemurrer and joinder. The demurrer being sustained to the second plea, it was by leave of court, withdrawn, and the cause submitted to the jury upon the plea of non assumpsit. A verdict was found for the plaintiff, the appellee, and judgment rendered thereon for three hundred and fifty dollars and costs. The only evidence on the part of the plaintiff was the writing above set out, on which the suit was instituted. The defendant, by his counsel, moved the court to exclude it from going as evidence to the jury, for the reason, as appears from the bill of exceptions, that it was variant from' the declaration, which motion the court overruled, to which opinion of the court in overruling said motion, the defendant, by his counsel, excepted, and has appealed to this court, and assigned for error, among others,
    1. The refusal of the court below to exclude the writing declared on, on the ground of variance between it and the declaration; and
    2. The want of an averment of a consideration for the defendant’s promise, in the declaration.
   Opinion of the Court by

Justice Smith,

Various grounds of error have been assumed in this cause, and on which it is contended the judgment below ought to be reversed.

Semple, for appellant.

Strode and Ford, for appellee.

It will be unnecessary to notice more than two, which are deemed sufficient to require a reversal of the judgment.

The note declared on is evidently one given to pay the debt of a third person. As there is neither a consideration for the promise expressed on the face of the note, nor one averred in the declaration, the omission in the last instance is certainly fatal, whether the first be so or not.

It is deemed unnecessary to discuss the difference between our statute of frauds, which is said to be the same as that of Virginia, under which, it has been adjudged, that the difference between the use of the words “ promise ” and “ agreement,” which is required to be in writing, renders it unnecessary that the consideration for the promise shall be in writing, and the British statute; or whether the use of the word “ promise ” in the one statute, and that of “ agreement” in the other, be a mere legal subtilty, because the omission to aver in the declaration that there was a sufficient consideration for the promise, and the ground of the legal liability of the defendant, is such a substantial defect as can not be cured after verdict.

There also existed a fatal variance between the instrument declared on, and the one produced in evidence. This objection, it appears by the bill of exceptions, was taken on the trial and overruled. The note declared on, is described as a promise by the defendant to pay to the plaintiff the amount, by the name of Almond Cottle; the note produced in evidence promises to pay to the creditors of Samuel B. Smith, jointly, the sums enumerated and set opposite each of the names of said creditors, of whom the said Cottle is alleged to be one. The promise in the note produced in evidence is a joint, and not a several promise, and does not therefore support the declaration. It is made to all the creditors of Samuel B. Smith, and not to each separately. The variance, however, in the description of the note, and the one produced, is obviously fatal. Sheehy v. Mandeville, 7 Cranch, 208. Ferguson v. Harwood, 7 ibid, 40.

The judgment of the circuit court is, for these reasons, reversed with costs.

Judgment reversed.

       As to variance, vide Taylor and Parker v. Kennedy, ante, p. 91. Rust v. Frothingham and Fort, ante, p. 331. Prince v. Lamb, post.


author: Chief Justice Wilson.

text:
    Timothy and Wm. Brinkley, Appellants, v. Reuben Going, Appellee.
    APPEAL FROM GALLATIN.
    A payee of a note, although he may have written an assignment on the back of it, can maintain an action thereon in his own name, and his describing himself “ assignee ” of the person to whom he made the assignment, may be rejected as surplusage. The indorsement is in the control of the payee, and he may strike it out or not as he thinks proper.
    The possession of the note by the payee, is, unless the contrary appears, evidence that he is the bona fide holder of it.
    Going, as assignee of Hulett, brought an action of debt before a justice of the peace in Gallatin county, against the appellants, upon a note under seal made payable to him, by the appellants, on the back of which was an assignment of the same to one Thomas Hulett, but crossed thus, M . Judgment was rendered by the justice of the peace in favor of Going, and an appeal taken by the defendants to the circuit court. On the trial of the appeal there, it appears from the bill of exceptions, that the counsel for the appellants moved the court to reverse the justice’s judgment for want of proof that Going had either paid the money to Hulett, or that said Hulett had retransferred the note to him, which motion the court overruled, and affirmed the judgment of the justice of the peace. The bill of exceptions states further, that there was proof that the defendant acknowledged the note to be just after judgment was rendered by the justice of the peace, and that he would pay the money by court, or let judgment go against him. The appellants assigned for error,
    1. That the plaintiff below sued as assignee of Hulett, when it appeared that the note had not been assigned to him, and that the court below erred in not reversing the judgment of the justice of the peace for this variance ; and

      2. That the court erred in not reversing the judgment of the justice on the ground that the note had not been retransferred to the plaintiff, and on the ground that the right of action was vested in Hulett, and not in Going.
   Opinion of the Court by

Chief Justice Wilson.

This is an appeal from the judgment of the circuit court of Gallatin county, affirming a judgment of a justice of the peace, rendered against T. Brinldey in favor of R. Going, upon a joint and several note made by T. and W. Brinkley to Going. On the back of the note is an assignment by Going to Thomas Hulett; the signature of Going to the assignment is crossed, and from the bill of exceptions containing the evidence, it appears that the defendant below acknowledged, after the judgment of the justice was rendered, that the note was just, though it does not appear that he knew of the assignment.

Eddy, for appellants.

Gatewood, for appellee.

For the appellants it is contended, that Going can not maintain this action in his own name without accounting for the assignment or a retransfer of the note. This position is untenable. The indorsement on the back of the note is in the control of the payee, which he may strike out or not, as he thinks proper, and in this case he has stricken it out. But even if the assignment had remained perfect, the possession of the note by the payee, is,'unless the contrary appears, evidence that he is the bona fide holder and owner of the note, and will enable him to maintain an action in his own name without a reassignment, or receipt from the assignee, and the allegation that he is assignee, may be regarded and rejected as surplus-age. The presumption of law in favor of the appellee’s claim, is supported by the ackowledgment of the appellants, that the note was just, and his promise to pay the money, or suffer judgment to go by default. See Dugan et al. v. United States, 3 Wheat., 172. Lansdale v. Brown, 3 Wash., 404. The judgment is affirmed with costs.

Judgment affirmed,

       The principles of this decision have been reaffirmed in the following cases. Kyle v. Thompson et al., 2 Scam., 432. Campbell v. Humphries, 2 Scam., 478. Parks v. Brown, 16 Ill., 454.
      A payee may, at the trial, erase any assignments which are on the note. Id.


text:
    Timothy Brinkley, Appellant, v. Reuben Going, Appellee.
    APPEAL FROM GALLATIN.
    The payee and holder of any negotiable note, with an assignment thereon to a third person, can, without a reassignment, maintain an action in his own name,

    The facts in this case are the same in 'all respects as those in the case of T. and W. Brinkley v. Going, supra.

         Ante, p. 366.

   Opinion of the Court by

Chief Justice Wilson.

The single point presented in this case, is, whether the payee and holder of a negotiable note, with an assignment thereon to a third person, can, without a reassignment, maintain an action in his own name. The case of Brinkley v. Going, decided at the present terpa, is in every respect analogous to this one.. There it was decided that the payee could maintain the action in his own name. In conformity to that decision, the judgment of the court below must be affirmed.

Eddy, for appellant.

Gatewood, for appellee.

Judgment affirmed.