text:
    J. Burgwin et al., plaintiffs in error, vs. E. Babcock et al., defendants in error.

      Error to Hamilton.

    tfo issues of law or fact can be formed upon a notice filed with the general issue.
    Tt is only wben evidence is offered under a notice, that the sufficiency of tbe notice can be tested; and if tbe matters stated in the notice do not constitute a defence to the action, the evidence offered will be excluded.
    A separate demand cannot be set ofí against a joint demand; nor can a joint debt be set off against a separate debt. The demands, to be set off, must be mutual, and between all the parties to the action.
    Where the record shows that a cause was tried by the Court, in the presence of the parties, without objection, it will be presumed that a trial by jury was waived.
    This was an action of debt by Babcock et al. against Burgwin and Smithpeter. Heard before Denning, Judge, at August term, 1848, and judgment was rendered for the plaintiff in the Court below. The defendants in that Court sue out the writ of error.
    The facts in the case are sufficiently stated in the opinion of the Court.
    W. B. Scates arid S. S. Hayes, for plaintiffs in error.
    R. F. Wingate, for defendants in error.
    The plaintiffs in error made the following points at the hearing of the cause:
    Under the general issue, acts clearly and explicitly set forth in a notice may be proven in evidence, if they constitute a defence. Revised Stat., pa. 415, sec. 14.
    Parties have a- right of set-off of subsisting claims and demands on contracts, express or implied. Revised Stat., p. 416, sec. 19; 1 Scammon, 462; 5 Gilman, 277; 3 Scammon, 298; 1 Gilman, 15.
    This doctrine of set-off is by our law much extended. Revised Stat., pa. 62., sec. 16-17, pa. 69, sec. 25, pa. 93, sec. 3, pa. 319, secs. 28, 31, 34; Sedgwick on Damages, pa. 470-1 and ’2, pa. 483 to '86; 2d Wendell, 431; 4 Wendell, 483; 8 Wendell, 109 and 117; 22 Wendell, 155; 25 Wendell, 669; 8th Paige, 597; 3d Hill, 171; 5th Hill, 71-76; 7th Hill, 53; 6 N. H. Rep., 497; 12 Pickg, 328; 4 Metcalf, 464; 6 Watts & Sug., 150, 155; 8 Meeson & Welsby, 858.
    Without consent, issues of fact cannot be tried by the Court. Revised Laws, p. 38, sec. 6, p. 414, sec. 11, p. 415, sec. 15, p. 25, article 7.
   Opinion by Treat, C. J.:

This was an action brought by Babcock and others against Burgwin and Smithpeter. The declaration was in debt, on a promissory note. The defendants pleaded nil debet, and gave notice, 1st, that the plaintiffs were indebted to them for goods sold, in the sum of $250, which they would set off; 2d, that the note was given for goods bought of the plaintiffs by the defendants, which were stopped in transitu; 3d, “ that the note sued on was given to pay for goods bought of plaintiffs by the first defendant, Burgwin—the other defendant, Smithpeter, being only security on the note—and afterwards the defendant, Burg-win, bought another large amount of goods—$200 worth—of said plaintiffs, and paid them for the same; but said plaintiffs stopped the goods last purchased; and still have them in possession, and have not repaid the purchase money, which defendants will setoff, &c.;” 4th, “that after the execution of the note sued on, the defendant, Burgwin, who was the principal in said note, bought of said plaintiffs another large amount of goods, of the value of $200, which goods were shipped by plaintiffs to said Burgwin, but said plaintiffs followed said goods and- took them into possession at Shawneetown, and carried them back to their store in Evansville, thereby causing a great loss to said Burgwin, from the want of a necessary stock in trade, and the injury thereby inflicted on his credit as a trader; which said losses, the defendants aver, amounted to $150; and the said plaintiffs afterwards promised to pay him the amount of damage so sustained as aforesaid, which said amount the said defendants are willing and offer to set off.”

It is stated generally in the record that there were issues on the first and second branches of the notice, and a demurrer to the third and fourth. The record then proceeds to state, “whereupon, afterwards, to wit, on the 31st day of August, 1848, at the said Court, came the parties by their attorneys, and the said plaintiffs having demurred to the plea of the said defendants, and the specifications thereunder, and argument being had, the demurrer of said plaintiffs is sustained to specifications Nos. 3 and 4; whereupon the defendants filed an affidavit for a continuance on the issues made, which affidavit the Court overruled, as being insufficient; and the defendants saying nothing further in bar of this action, and proofs heard, a judgment is given for the plaintiffs for the sum of $200 debt, and $6 75 damages, in all $206 75, together with their costs and charges about their suit expended, and may have execution.”

It is assigned for error that the Court erred in sustaining the demurrer. It was irregular and incompetent to form either issues of law or fact on the notice. A notice is not a plea, and requires no answer from the plaintiff. No question arises on a notice until the defendant offers evidence to support it on the trial. If the notice is then found to be defective, the Court will not allow evidence to be given under it; or if the matters stated, in the notice do not- constitute a defence to the action, the evidence offered will be excluded. Chamberlain vs. Gorham, 20 Johnson, 144 and 746; Shepherd vs. Merrill, 13 Johnson, 475; Mitchell vs. Worden, 8 Wendell, 570; Bissell vs. Cornell, 24 Wendell, 354; Van Eps vs. Harrison, 1 Denio, 246.

But as the parties have treated the notice as a plea, and as the result of this decision will be the same, whether we treat it as a plea or a notice, it will not be improper to express an opinion respecting the merits of the defence set up in the notice. It is an attempt to set off against a joint debt a separate demand due to one of the defendants only. The law is well settled that this cannotbe done. A separate demand cannot be set off against a joint one, nor can a joint debt be set off against a separate one. A demand to be set off must be owing from the plaintiffs to all of the defendants. The demands must be mutual, and between the parties to the action. 1 Chitty’s Pl., 571; Babbington on Set-off, 37; Gregg vs. James, Breese’s Rep., 107 ; Hinckley vs. West, 4 Gilman, 136.

It is also assigned for error that the Court erred in rendering a judgment without first submitting the issues to a jury for trial. It is apparent from the record that the proofs were heard, and the judgment pronounced, immediately after the demurrer was sustained, and the application for a continuance overruled, and while all of the parties were before the Court. It is a fair inference that the cause was heard by the Court by their consent. If the fact was otherwise, the defendants would have objected to the course pursued, and tendered a bill of exceptions. If they were present and interposed no objections, they waived their right to have the cause submitted to a jury, and acquiesced in the trial by the Court.

The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.


source: Caselaw Access Project

author: Opinion by Treat, C. J.:

license: Public Domain

text:
    William McDowell, administrator of Robert Whitton, deceased, plaintiff in error, vs. Adam Jesse Cochran, defendant in error.

      Error to Massac.

    Ordinarily an execution must issue on a judgment, and be returned unsatisfied, before a Court of Equity will entertain a bill to reach real estate, in which the judgment debtor has not such an interest as can be sold on execution; but in proceedings against intestate estates, which are insolvent, a resort to equity may be had, without this preliminary step, sinee, by our statute, an execution cannot issue*upon a judgment against an administrator.
    The administrator must be made a party to the suit.
    Where a demurrer to a bill in chancery is sustained, unless leave to amend is asked, a dismissal of the bill is the proper decree.
    Bill in chancery in the Massac Circuit Court, brought by plaintiff in error against defendant in error. Heard on demurrer to bill at May term, 1849, before Denning, Judge. Demurrer sustained, and bill dismissed. To correct this judgment the writ of error was sent to the Circuit Court.
    The facts of the case are stated in the opinion.
    T. G. C. Davis, for plaintiff in error.
    The only error assigned was the dismissal of the bill.
    The plaintiff in error made the following points, and cited the following authorities :
    1st. The law does not require impossibilities. In this case an execution could not have been issued under the provisions of the statute. 3d Gilman’s Reports, 490. It is not necessary to sue out execution before proceeding against land to which the debtor was equitably entitled. 1st Equity Digest, 339; 2d Paige’s Ch. Rep., 54.
    2d. The allegations in the bill dispense with the necessity for issuing execution (admitting that otherwise it should be done before filing this bill,) by showing that execution would have been wholly unavailing, there not being at the time of the death of the original defendant, any personal or other property belonging to the estate.
    3d. Where a debtor enters land with his own funds, in the name of a third person, it is a fraud, especially upon antecedent creditors; and Courts of Equity will subject land so entered to the payment of debts due by the person so furnishing the means to make the purchase. 3d John. Ch. Rep., 481; 5 Cowen, 67; 2d Story’s Eq. Jur., secs. 609 and 1201; 2d Paige’s Ch. R., 59.

      4th. Allegations of fraud in fact, committed by taking conveyances in the names of third persons, with intent to defraud creditors, will induce a Court of Equity to entertain a bill, even in the case of a corner anee taken in the name of an infant child of the debtor. 10th Paige’s Ch. Reps., 505.
    Richard S. Nelson, for defendant in error, made the following points:
    1st. A judgment must ho obtained, and execution issued, and returned nulla bona, to give a Court of Equity jurisdiction. McDermot vs. Strong, 4th Johnson’s Ch. Reps., 689; Stone vs. Manning, 2d Scammon, 534; Revised Laws, p. 97.
    2d. It is the favorite policy of Courts of Equity to distribute assets pari passu, unless a legal preference he obtained. And a plaintiff must come into this Court in the character of an execution creditor. Revised Laws, p. 561, sec. 115. Pascal vs. Hailman, 4 Gilman, p. 285.
    3d. The plaintiff in error ought to have filed his claim in Court of Probate, as required by law. And in case there was trust property that could not be reached in the ordinary way, he ought to have obtained an order of the Probate Court, directing the administrator to proceed in equity, against the heir, for the benefit of all the creditors. Revised Laws, p. 558, sec. 103; US. Digest, vol. 2d, page 187, 188. And if creditor fail to file his claim in two years, he will be barred at law. Revised Laws, pa. 560, sec. 114; Thorn vs. Watson, 5th Gilman, 26.
    4th. An administrator, by confessing judgment in favor of any parti&ular creditor, is precluded from denying assets. 4th Cowen, 465; 1st Johnson’s Cases, 276.
    5th. The administrator was undoubtedly interested, and ought to have been made a party to the bill. Greenup vs. Porter, 3d Scammon, 65; U. S. Digest, pa. 187, sec. 90.
    6th. If this hill is maintainable at all, it ought to have been filed for the common benefit of all the creditors, and the administrator ought to have filed the bill. U. S. Digest, vol. 2, pa. 388; Martin vs. Root, 17 Mass., 222.
   Opinion by Treat, C. J.:

This was a bill in chancery, filed by McDowell, administrator of Whitton, against Adam Jesse Cochran, to subject a certain tract of land to the payment of a judgment recovered by the complainant, against the administratrix of the estate of Adam Cochran, which estate the bill alleges is insolvent. The bill charges that Adam Cochran entered the land, with his own funds, in the name of his infant child, the defendant, with the fraudulent design of preventing the complainant from collecting the debt, for which the judgment was rendered. The Court sustained a special demurrer, and dismissed the bill.

If the allegations of the bill respecting the purchase of the land are true, the complainant has in equity a clear right to enforce satisfaction of his judgment out of the land. It is insisted, however, that he cannot seek this relief until an execution has been issued on the judgment, and returned unsatisfied. The general rule undoubtedly is, that a creditor must obtain a judgment for his debt, and endeavor unsuccessfully to enforce its collection by execution, before he can go into equity to satisfy it, out of property that cannot be reached at law. His right to relief in equity, in such case, rests on the fact that he has exhausted his legal remedies without being able to collect his debt. Ordinarily an execution must issue on the judgment, and be returned unsatisfied, before a Court of Equity will entertain a bill, to reach real estate in which the judgment debtor has not such an interest as can be sold on execution. But the present case is an exception to the rule. The complainant has already exhausted his legal remedies without success. Under our statute, an execution cannot issue on a judgment against an administrator, but the judgment is to be paid in due course of administration, as all other claims against the estate. Welch vs. Wallace, 3 Gilman, 490. The estate being insolvent, the complainant cannot obtain payment in the latter mode. His only remedy, therefore, is to proceed in equity against the land, and to that, on the showing of the bill, he is clearly entitled.

But it is contended that, instead of permitting him to pursue this remedy, he should be required to institute proceedings in the Probate Court, to compel the administratrix to petition the Circuit Court for leave to sell the land, to pay the debts against the estate. The statute seems only to authorize the Circuit Court to order the sale of real estate of which the intestate died seized; but however that may be, there are strong reasons why all questions affecting the title to the land in question should be adjusted, before the land is exposed to sale. These matters could not be investigated and settled, in a summary application by the administratrix for a license to sell land to pay debts. Unless a good title could be acquired by the purchaser, the property would be sacrificed, and the rights of the estate and creditors prejudiced. All obstacles in the way of acquiring such a title, should be removed before a sale is ordered.

It is insisted that a bill of this character should be filed on the behalf of all the creditors of the estate. If there is any force in this objection, it is a sufficient answer to remark, that the case no where shows that there are any other creditors than the complainant. If there were other creditors, and the complainant should succeed in subjecting the land to sale, perhaps a question might arise whether he would be entitled to a priority in payment, as a reward for his superior vigilance, or whether the proceeds should be considered simply as assets to be distributed pro rata among all the creditors. But these questions do not arise, and it is not necessary to express any opinion respecting them.

It is insisted that the administratrix is a necessary party to the suit. This objection to the bill is well taken. The complainant should have made the administratrix a defendant, and allowed her an opportunity of showing that the judgment had been paid, or, if unpaid, that the estate was solvent, and, therefore, this proceeding was unnecessary. For this defect in the bill, the demurrer was properly sustained.

It is assigned for error that the Court erred in dismissing the bill unconditionally. If the complainant wished to amend the bill, he should have asked leave of the Court for that purpose; which would have been granted. But omitting to do that, he elected to stand by the bill, and the proper decree on the demui’rer was for its dismissal.

The decree of the Circuit Court is affirmed, with costs.

Decree affirmed.


text:
    Christopher Ender, plaintiff in error, vs. Philip Scott, defendant in error.

      Error io St. Clair.

    In order to constitute a warranty, there must be not only an affirmation respecting the quality or condition of the thing sold, but the affirmation must be made with the view of assuring the buyer of the truth of the fact asserted, received and relied upon by him, inducing him to make the purchase.
    This was an action on the case on an express warranty, brought by Scott against Ender, in the St. Clair Circuit Court. Heard at April term, 1849, before Underwood, Judge, and a jury. A verdict was found for plaintiff for $15 00. A motion for a new trial was made and overruled, and judgment was rendered for plaintiff. The defendant sued out a writ of error.
    G. Kcerner, for plaintiff in error, made the following points, and cited the authorities referred to :
    The evidence does not show any warranty. As to the general principles of warranty, see 2 Chitty on Pleadings, page 279, note g, pa. 679 and notes; Chitty on Contracts, 449-452; 5th Gilman, 37; 2d Scammon, 25.
    Words equivalent to a warranty must be used. Comyns5 Digest, vol. 2, pages 265, 266, 274; 2d Starkie, 1237, note a.

    If a warranty was made, the defect in question was one obvious to the senses, and did not bind vendor. 2 Black. Com., 165; Salkeld, 211.
    G. Trumbull, for defendant in error.
   Opinion by Treat, C. J.:

This action was brought to recover damages, for the breach of a warranty on an exchange of horses. The Court instructed the jury that, “ If they believe from the evidence that the defendant represented in positive terms to the plaintiff, at the time of and before the exchange, that the mare was sound, except the distemper, such positive assertion will amount to a warranty, which, if false, the defendant is liable for in this action.55

The instruction was clearly erroneous. In order to constitute* a warranty, there must he not only an affirmation respecting the quality or condition of the thing sold, but the affirmation must be made with the view of assuring the buyer of the truth of the fact asserted, and inducing him to make the purchase, which is so received and relied on by him. Hawkins vs. Berry, 5 Gilman, 36. The instruction is not broad enough to embrace this definition of a warranty. The facts stated in it may all have been true, and still such a thing as a warranty not have entered into the minds of the parties. The plaintiff may not have intended the assertion as a proposition to warrant the soundness of the horse, nor the defendant have accepted and acted on it as such.

The judgment of the Circuit Courtis reversed, with costs, and the cause is remanded for further proceedings.

Judgment reversed.


author: Opinion by Mr. Justice Trumbull :

text:
    George Young, appellant, vs. Elam Silkwood, appellee.

      •Appeal from Perry.

    In actions of trespass, where the testimony is often and perhaps usually circumstantial, the Court will rarely, if ever, disturb a verdict, when there is any thing in the record tending to support the finding of the jury.
    This was an action of trespass for shooting a horse, brought by Silkwood against Young, before a justice of the peace, where plaintiff had judgment for $45 00. From this judgment Young appealed to the Circuit Court. The trial in the Circuit Court came on before Underwood, Judge, and a jury, at the April term, 1849. Verdict and judgment for Silkwood, for the same sum. Motion for new trial was denied, and Young took an appeal to the Supreme Court.
    W. Edwards, for appellant.
    C. L. Starbuck, for appellee.
   Opinion by Mr. Justice Trumbull :

The only question in this case is, whether the Circuit Court erred in refusing to set aside the verdict of the jury as contrary to evidence.

The action is trespass for shooting a horse, and presents questions peculiarly proper for the consideration of a jury.

That the animal was injured is unquestioned, and the only-point of dispute is, whether the appellant committed the injury. The fact of his previous threats, that he had a gun, that the horse was seen in' his field, and a gun heard in that direction, shortly before the injury was inflicted, and that tracks and blood were afterwards discovered in the field, are circumstances from which the jury may well have inferred that appellant committed the injury.

In a case of this kind, where the testimony is often and perhaps usually circumstantial, the. Court will rarely, if ever, disturb a verdict, when there is any thing in the record tending to support the finding of the jury.

Judgment affirmed.


text:
    James Marshall, plaintiff in error, vs. Nathan Adams, for the use of John M. Ogleby, defendant in error.

      Error to Marion.

    Admissions made by tbe administrator of an intestate, cannot bind a joint promissor with the intestate.
    If it becomes necessary to give evidence of what a. party to the suit had previously said, or verbally sworn to, it can only be done by the sworn testimony of some one who heard him make the statement, and then his words must be substantially given, and not the conclusion as to what his words would prove.
    That a note made payable to an individual by name simply, affords of itself no evidence that the note belongs to him in a representativecapacity.
    This was an action of debt, brought by Adams for the use of Ogleby, upon five sealed promissory notes, executed by one John W. Roach and the plaintiff in error. Four of these notes were made payable to Nathan Adams, guardian for the minor heirs of James Blair, deceased, and one to Nathan Adams simply.
    The cause was tried by a jury, at August term, 1848, before Denning, Judge. Verdict and judgment for defendant in error, for $550 92.
    •The defendant in the Court below, pleaded payment by said Roach, in his life time, after the notes became due, and before the assignment or transfer of the interest in the same to the said Nathan Adams, he then being the holder and owner of said notes, and having the legal right thereto. This plea was traversed and issue joined. Upon the trial was read to the jury, as evidence admitted by the plaintiff in the Circuit Court, the affidavit of the defendant, made to obtain a continuance of the cause; in which it was set forth and admitted as true, that the notes sued on were executed by said Roach, in his life time, as principal, and by the defendant as surety; and that after the death of said Roach, the several notes sued on were found in the possession of and among the private papers of said Roach, left by him at his decease, the said Roach being a joint maker of said notes with the defendant, and that since the death of said Roach, the notes sued on were taken from among his private papers.
    During the progress of the trial the plaintiff, for the avowed purpose of proving the admission of the defendant, offered to read from the books belonging to the office of the probate justice for Marion county, an entry or memorandum, in the following words:

      a jProbate Records.—Marion, Illinois, special term, August 25, 1842. And now at this day comes Nathan Adams, and made proof, by the testimony of James Marshall, that he did, on or about the 20th of September, 1840, resign his guardianship as guardian of Thomas Blair, Hiram Blair, Mary Ann Blair and Nancy Blair, minor heirs of James Blair, deceased; as such orders that the resignation of Nathan Adams be entered of record, which is done in the words and figures following, to wit: Be it known that the aforesaid Nathan Adams is ordered to he free of all guardianship of said minors from the date above mentioned. James Chance, Probate J. P. [seal.”]
    The reading of which was objected to, but objection was overruled, and the same was read to the jury as evidence.
    The plaintiff, also, further proposed to read from the said hooks of probate justice, the appointment of one Doct. Hall to be the administrator of said John W. Roach, deceased, and then to prove the admissions of said Hall, after being appointed such administrator, that the notes sued on had not been paid by said Roach in his life time ; which being objected to, was, notwithstanding, permitted to go to the jury.
    The Court, at the instance of the plaintiff, instructed the jury: That the admissions of an administrator are competent to bind the estate of his intestate.

      The Court refused to give the following instruction asked for by defendant: That the note payable to Nathan Adams, without describing him as guardian of the heirs of James Blair, deceased, does not of itself afford any evidence that this note belonged to Adams as guardian.
    David J. Baker, for plaintiff in error, presents the following points and authorities:
    1. The admissions of the defendant cannot be proved by a memorandum made by James Chance, or any other person, in or out of any office, upon the probate books, of a fact established by the oath of said defendant touching a certain matter or on a certain occasion. Such admissions, if oral, should be established by the oath of some witness who heard him swear ; or, if it was embodied in a written affidavit, signed by the defendant, that affidavit, or a certified copy of it, should have been produced. 1 Greenleaf’s Ev., sec. 82; 2 Stephens’ Nisi Prius, 1569.
    2. The admissions of Doct. Hall, the administrator of John W. Roach, deceased, could not be proved against the defendant, because : First, they were res inter alios acta. 1 Greenleaf’s Ev., secs. 187, 99; 2 Stephens’ Nisi Prius, 1561. Second, they could not be proved to charge the estate which he represented, much less to charge the defendant in this suit. Revised Laws 1833, secs. Ill, 112, 113 and 114; Revised Stat. 1845, secs. 95, 119.
    3. Nathan Adams, the guardian, could control the notes taken to himself, acting as such guardian, after he had made settlement of his trust, unless he had transferred those notes to his wards, or some other person. His right to collect the notes did not cease upon his settling, unless he transferred the notes, and thereby ceased to be the owner of them. His being described as guardian was mere descriptio personse.

    4. The possession by the maker of a note, executed by him, is unexplained prima facie evidence of his having paid the same.
    5. A common promissory note or bond executed to “ Nathan Adams,” without any description or mention of the character in which he receives it, or of the fund to which it belongs, affords no evidence of its being a trust fund held by him as guardian.

      Walter B. Scates, for defendant in error.
   Opinion by Mr. Justice Trumbull :

This was an action of debt brought upon some notes executed by John W. Roach and James Marshall, and all made payable to “Nathan Adams, guardian for the minor heirs of James Blair, deceased,” except one, which was payable to “Nathan Adams” simply.

Marshall pleaded that the notes were paid by Roach, who was the principal in the notes, in his life time. The jury found against the plea, and the plaintiff below had judgment for the amount due upon the notes.

Upon the trial, the plaintiff was permitted to prove the admission of the administrator of Roach, that the notes were not paid by Roach in his life time; and, also, for the purpose of proving the admissions of the defendant, Marshall, to read in evidence to the jury the following entry upon the records of the Probate Court of Marion county, to wit: “ Special term, Aug. 25th, 1842. And now at this day came Nathan Adams, and made proof, by the testimony of James Marshall, that he did, on or about the 20th of September, 1840, resign his guardianship as guardian,” &c. The Court also instructed the jury- at the instance of the plaintiff, “ that the admissions of an administrator are competent to bind the estate of his intestate,” and refused to instruct at the request of the defendant, “ that the note payable to Nathan Adams, without describing him as guardian of the heirs of James Blair, deceased, does not of itself afford any evidence that this note belongs to Adams as guardian.”

The admission of the foregoing evidence, which was objected to at the time, and the giving of the instruction asked by plaintiff and refusing the one asked by defendant, are now assigned for error.

It was clearly erroneous to admit in evidence, in this action against Marshall alone, the admissions made by the administrator of Roach. Admitting the law to be as plaintiff below insisted, that an administrator may by his admissions bind the estate of his intestate, and it by no means follows that such admissions can bind a joint promissor with the intestate. Where there are several administrators, the confession of a debt due from the estate by one is not admissible in a suit for the debt against the co-administrators, to establish the original demand. Hammon ra. Huntley, 4 Cowen, 493; Forsyth vs. Ganson, 5 Wend., 558. And there is no such joint interest between a surviving promissor and the administrator of his co-promissor, as to make the admission of the one binding upon the other. 1 Greenleaf Ev., 176. But we are not prepared to admit that an administrator can, under our laws, which prescribe the mode of establishing claims against an estate, bind the estate by his admissions. R. S., ch. 109, secs. 95, 116, 118, 119, 122; Quarle vs. Littlepage, 2 Henning & Munf., 401. It is, however, unnecessary to settle that question in this case, as such admissions are clearly inadmissible as against Marshall.

The probate record was also improperly admitted in evidence, for the purpose for which it was offered. If it became necessary to give evidence of what Marshall had previously said or verbally sworn to, it could only be done by the sworn testimony of some one who heard him make the statements, and then Ms words substantially must be given, and not the result of what his evidence proved.

The instruction asked by defendant should also have been given. That a note made payable to an individual by name simply, affords of itself no evidence that the note belongs to him in a representative capacity, is a self evident proposition.

The judgment of the Circuit Court is reversed, and the cause remanded.

Judgment reversed.


author: Opinion by, Mr. Justice Catón:

text:
    DECEMBER TERM, 1849, AT SPRINGFIELD.
    Martin B. Miner, appellant, vs. Laura L. Miner, appellee.

      Jlppeal from Greene.

    In cases of separation the father has the legal right to the custody and control of his children, unless he has forfeited, waived or lost it, by misconduct, misfortune or some peculiar circumstances, sufficient to deprive him of it.
    Next to the right of the father, that of the mother must bo recognized; but these rights axe subject to the control of a Court of Chancery, and when its aid is invoked, the best interests of the child should be primarily considered.
    Under our statute, the paramount right of the father to the children will not be recognized, where a divorce has been granted for his fault or misconduct.
    The proofs taken upon the hearing of a question for divorce, may be considered by the Court, in disposing of the children of the parties.
    When the aid of the Court is once invoked to provide for the guardianship of infants, in case of separation of the parents, such infants become the wards of the Court, and it will not permit them to be removed beyond its jurisdiction, or permit either parent to alienate the affections of the infants from the other.
    The appellee, complainant in the Jersey Circuit Court, at the May term, 1848, filed her bill for a divorce, on account of extreme and repeated cruelty on the part of her husband. The venue was afterwards changed to Greene county for trial, and in that Court a decree for a divorce was entered, the defendant having withdrawn all defence to a divorce, but reserving to himself “the right of contesting before the Court all her legal claims, to the custody, care and maintenance of his daughter, Charlotte H. Miner, the only surviving offspring of the marriage ; and reserving, also, to himself, the right of contesting any claim which might be set up by complainant for alimony, as set forth in the bill.” Subsequently to the entry of the decree for a divorce, the questions as to custody of the child and the allowing of alimony, were heard and decided, whereby the custody, care, control and raising of the child, was given to the complainant, and that she have and retain as for her alimony, certain articles of personal property, enumerating some of them, “ and such other items of personal property as she has in her possession, that may have belonged to the defendant;” the Court making “no order for the payment of alimony in money,” from which the defendant prayed an appeal to this Court; but the Court below, as the decree reads, in consequence of the additional expense which would have to be incurred by the plaintiff, in further litigating this cause, ordered and decreed that the defendant pay to the plaintiff $15, at the end of each month, from and after the date of the decree, until the questions involved are settled, and the child should be surrendered to the plaintiff.” From all these decisions, except the one granting a decree, the defendant has appealed to this Court. The testimony adduced on the final hearing of the questions reserved, some of which was objected to, is embodied in the bill of exceptions, and the defendant insists does not authorize the decisions of the Court made therein.
    By agreement of the parties, entered of record, David A. Smith, esq., was substituted for Judge Woodson in the hearing of this cause, the latter having been of counsel for one of the parties, and the decision of Mr. Smith was to be and was entered as of the April term, 1849, of said Greene Circuit Court.
    It is not deemed advisable to incorporate the testimony in the statement of the case, inasmuch as it is not essential to a full understanding of the opinion.
    The appellant assigned several errors :
    1. That he should be entrusted with the care of the child, instead of the mother.
    2. That decree for divorce ought not to have been granted, nor should respondent have been adjudged to pay the costs.
    3. That alimony was improperly allowed.
    4. That the decree for alimony, besides being for specific articles of property, incapable of identification, is indefinite and uncertain.
    5. That the Circuit Court imposed terms and required conditions unauthorized by law, and arbitrary in their character and terms.

      6. That the allowance oi‘ fifteen dollars per month was wrong, and it was error to give the appellee the custody of the child.
    7. The allowance of five dollars per month to the appellee, for her support during the pendency of this suit.
    8. And the issuing of the depositions, taken for the express purpose of "divorce, in the hearing on trial for the custody of the child.
    D. J. Baker, for appellant:
    1. The father has the first right to the guardianship of his children, and to their custody, care, control and raising. This right is incident to and arises out of his duty to maintain them, and, consequently, to instruct them, and his right to their services. 2d Kent’s Comm., p. 193 and 195, note b; also, 1 Hoff., Ch. R., 497; Ahrenfeldt vs. Ahrenfeldt, 25 Wend. R., 64; Mercien vs. People, 3d Hill’s R., 399; The People vs. Mercien, 2d Kent’s Com., 195 and 205 and note b and c.; The King vs. De Manneville, 5 East; 4 Humph. Rep., 523; 18 Wendell, 637. In The People vs. Mercien, 3 Hill, 399, it was held as a general rule of law, that, as between husband and wife, the claim of the former to the custody of their infant children is paramount, and will be enforced on habeas corpus, though the child be a daughter under five years of age. The rights of parents result from their duties. 2 Kent’s Com., 193 and 203. The father has the first right to guardianship, by nature; the mother the second. 2 Kent’s Com., 220, note d. The rights and powers of a guardian are strictly local, and cannot be exercised in other states. 2 do., 227, note b; 2d Bland’s Ch. R., 504; 2d Mylen and Craig, 31; 5 Paige’s Ch. R., 596; 2 Madd. Ch., 332. The father is still bound to support after a divorce is granted. 3 Gilman’s R., 435 et seq., Coles vs. Coles; Staunton vs. Wilson, 3 Day R., 37. The statute of Illinois relating to the support of the children of persons divorced, confers on the Court no new authority. A Court of Chancery possessed it independent of the statute. Do., 438.
    2. The facts proved in this case did not authorize the alimony of the specific articles of property mentioned in the decree, much less of property by the designation of “ such other items of personal property as she has in her possession, that may have belonged to the defendant.” Besides being unauthorized by the evidence and the law, a part of the articles decreed to her as alimony are uncertain, and incapable of identification. The depositions used on the trial of the divorce were improperly admitted as evidence, in regard to the questions as to the custody of the child, and the allowance of alimony. Reavis vs. Reavis, 1 Scam., 242.
    3. The Court did not possess the authority to compel the defendant to pay for the support and maintenance of complainant, during the pendency of the suit.
    4. The defendant possessed the absolute and unqualified right to appeal from the decision of the Court below to this Court; and the terms and conditions imposed upon the defendant on allowing the appeal prayed to this Court, being the payment of $15, at the end of each month from and after the date of the decree, until the questions involved should be settled, and the surrender of the child to the complainant were unauthorized and arbitrary. Emerson vs. Clark, 2 Scam., 489.
    Wi. Thomas, for appellee :
    In this case the Circuit Court decreed :
    1. That the appellee should have the custody, care and control of her infant child, or female aged seven years.
    2. That the appellee have and retain, as and for her alimony in the premises, certain articles of personal property, then in her possession.
    3. The Court being satisfied that the value of appellant’s property did not exceed the amount of his indebtedness, and that he was not in the receipt of any income, made no order for the payment of alimony in money.
    4. That appellant should pay the costs.
    5. That appellant should pay fifteen dollars per month for support &c., pending the litigation.
    From this decree the appeal is taken to this Court. The defendant insists :
    1. That, in so far as the decree affects the custody of the child, it was made in the exercise of a discretionary power, and therefore not the subject of revision by this Court. Revised Statutes, 197, secs. 6 and 8 ; 2 Kane, 181; 10 Wendell, 39; 12 Johnson, 49; 18 Wendell, 329-30; 6 Peters, 648; 1 Scammon, 135; 2 Bibb, 554; 5 Gilman, 169.

      2. The jurisdiction of this Court is appellate only, and can only be exercised in cases u wherein the rules of law, or principles of equity, appear from the files, records or exhibits- [of inferior Courts] to have been erroneously adjudged and determined.” 5 art., 5 sec., Constitution; Revised Statutes, 143. The question decided by the Circuit Court depended, not upon any rule of law, or principle of equity, but upon the opinion of the Judge, as to what was for the interest of a third person, not before the Court.
    3. This Court will not look into the decree for divorce, because the decision upon that question is not objected to, nor appealed from.
    4. It is stated in the abstract, that the appellant withdrew all defence to the decree for the divorce; and this fact is said to appear from the record. Upon this question there can be no controversy in this Court; but the reply.to the suggestion is, first, the paper referred to is no part of the record; second, it was never acted upon by the Court below, and could not have influenced the decision of that Court.
    5. If such a paper had been brought to the notice of the Court, with any evidence of agreement or collusion between the parties, the bill would have been dismissed.
    6. The depositions prove such conduct toward the wife, as to satisfy any Judge or Court that the guilty party is wholly unfit to have the care of an infant daughter.
    7. Upon the question as to the custody of the child, the evidence shows : First, that McNeal, the father of the appellee, is a man of great wealth; that he is willing and anxious for the return of the appellee with the child, to him, and to educate and provide for the grand-child. Second, that the appellee is well qualified to have the charge and education of the child. Third, that the welfare of this child requires the care and attention of the mother. Fourth, that appellant is destitute of property, and, of course, without the ability to educate the child so as to fit her for the duties of life. Fifth, that appellant has employed a house-keeper, with whom the child must associate, who is ignorant—wholly unfit to have the charge or care of children. No witness proves, that either appellant or this housekeeper ought to be allowed to have the care and education of the child. Sixth, from the nature of the case, and the provisions of the law, it is impossible that the Court could have erred in deciding any legal question presented.
    Upon the question of the custody of the child, the defendant relies upon the following authorities: Cowls vs. Cowls, 3 Gil-man, 436; U. S. vs. Green, 3 Mason, 484-5; Foster and wife vs. Alston, 6 Howard Miss., 456; Morcien vs. The People, 25 Wendell, 103; Cook vs. Cook, 1 Barbour, 644.
    Upon the question of alimony, it is not disputed but that the Court had the power to make the order; the form of the decree in this respect seemingly making the $15 per month payable, because the appeal was prayed, can have no influence upon the the question now before the Court. Jones vs. Jones, 2 Barbour’s Chy., 147; 3 Barbour’s Supreme Court, 624; 1 do., 431. This Court will understand the decree as requiring the appellant to pay $15 per month, pending the litigation.
    This is the substance and effect of the order. Upon the question of the reading of the depositions, the appellee insists: First, that the depositions were already before the Court, having been read upon the trial for divorce. Second, that though it appears that the reading of the depositions was objected to, yet no exception was taken to their being read. Third, the depositions were regularly taken to be read as evidence in the cause; the witnesses reside in Jersey county; the Court was held in Greene county. Fourth, the ground of objection does not appear from the record; none was stated before the Circuit Court, and it is now too late to make objections which, if made in the Circuit Court, might have been obviated.
    In the case of Reavis vs. Reavis, the Court decided that the party was entitled to alimony, and the question to be subsequently determined was as to the amount. It was, therefore, improper to introduce evidence upon the question already decided ; but in the case now before the Court, the question of alimony had not been decided, and the depositions were properly admitted.
   Opinion by, Mr. Justice Catón:

No complaint is made of the decree granting the divorce. The principal question submitted for our consideration, relates to the proper disposition to be made of the child.

In determining this question, it is insisted that we ought not to look into the depositions, which were taken upon the trial of the main issue, and that we should limit ourselves to an examination only of such evidence, as was taken upon this incidental Question. This is an appendage of the original suit, and all proofs regularly taken in the case, and bearing upon the present inquiry, are subject to an examination. We are asked to be more exclusive in the admission of evidence in this than in any other case, whereas the reverse of this proposition has been decided to be the correct rule, and so laid down in Cowls vs. Cowls, S Gilman, 435. In that case, also, the jurisdiction, powers and duties of a Court of Chancery, in the disposition of infants within its jurisdiction, are fully set forth; it is, therefore, unnecessary to enlarge upon them here. A Court of Chancery is seldom called upon to exercise a jurisdiction of so embarrassing and important a character as this, or one which requires more serious and anxious consideration. In the exercise of it we are called upon, not only to interfere with the interests of suitors, but to sound the deepest feelings of the human heart—the love of parents for their children. Especially in the present case, where the parents are separated by a divorce, and both seem equally attached to their offspring.

Upon the extent of the legal right of the father to the custody and control of his children, many contradictory decisions are to be found; we think it clear, nevertheless, that he does possess that right, unless he has forfeited, waived or lost it, either by misconduct, misfortune, or some peculiar circumstances, sufficient in the opinion of an enlightened chancellor to deprive him of it. In the event of a separation of the parents, this right must be conferred upon one of them, otherwise the impulses of their natures would induce them to resort to violence to retain possession of their children. • Next to the right of the father that of the mother must be recognized. These rights, however, are subject to the control of the Court of Chancery, and when its aid is invoked, while it may not disregard the natural rights of parents, and the ties of blood, the best interests of the child must be primarily consulted. It is upon this consideration that an infant of tender years is generally left with the mother, (if no objection to her is shown to exist,) even when the father is without blame, merely because of his inability to bestow upon it that tender care which nature requires, and which it is the peculiar province of a mother to supply.

This remark will apply with much force in cases of female children of a more advanced age. While the affection of parents for daughters may be equal, yet the mother, from her natural endowments, her position in society, and her constant association with them, can give them that care, attention and advice so indispensable to their welfare j which a father, if the same children were left to his supervision, would be compelled in a great degree to confide to strangers. I know there are some decisions of the common law Courts of England, of a late date, where they have, by the writ of habeas corpus, torn nursing infants from the arms of innocent and unexceptionable mothers, and placed them in the hands of fathers, to be reared by adulteresses, with whom the fathers were living. But so far as I am informed, a Court of Chancery has never been disgraced by such a decision. Clothed with more discretion, it is to be hoped that Court will continue to exercise that discretion under a more benign influence.

In no case do I find this legal right of the father asserted, where a divorce has been granted for his fault or misconduct. If such right ever did exist, so as to abridge or control the exercise of the equitable discretion of the Court of Chancery, it has been entirely removed by our statute; which authorizes the Court, when a divorce shall be granted, to make such order touching the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just.” What then is fit, reasonable and just, under the circumstances of these parties, and the nature of this case ? Such a case of ill treatment of the wife is shown, as authorized the Court, under our statute, to grant a divorce. In determining the question submitted to us, we shall not minutely review the evidence upon which that Court decided, but will content ourselves with remarking, that it shows the defendant to be a man of irascible temper and violent resentments, over which at times he loses all control. Towards his wife, at least, his conduct was so unreasonable, oppressive, and we may add cruel, as to render her life miserable, and to cause her health to be seriously impaired. It may be that her education, tastes and habits of thought, may have unfitted her for the situation and circumstances in which she lived, and that she was unreasonable and irritating in her complaints; but these would not furnish a justification for the conduct of the husband towards her. Towards the child, his conduct, so far as is shown from the evidence, seems to have been unexceptionable. That he has the proper affection for her we may not doubt, and it may be that towards her his unfortunate temper would be but seldom manifested.^ Notwithstanding this, it cannot be expected that he would bestow that personal care and attention upon a girl seven or eight years old, which may be expected from a mother, who appears to be well qualified for the care of the child, and against whom no just objection is shown to exist. If left with the father, the child must, to a great extent, be entrusted to the superintendence of others; her nature will lead her to associate with her own sex, by whom her manners will be formed, her thoughts and tastes directed, and, in truth, her character mainly moulded. His occupations will doubtless prevent that constant watchfulness over her, so essential to her proper cultivation, and which could be better contributed by a vigilant and tender mother. We shall, therefore, leave her for the present, at least, where she has been placed by the Circuit Court.

It is apparent from the record that there is some Intention on the part of the mother, if allowed to retain the custody of the child, to remove her beyond the limits of the state. This cam not be tolerated, and must be guarded against. While the custody of the child is given to the mother, the father must not be wholly deprived of its society, but must be allowed access to It upon all reasonable occasions. The child, although intrusted to the care of the mother, is nevertheless the ward of the Court, and any attempt on the part of either parent to alienate its affections from the other, would be a contempt of the Court, and would be visited by its judgments as such. Indeed, this, by whomsoever attempted, would be held to be an abuse of the child, which the Court would consider it a solemn duty to prevent.

That portion of the decree which awards to the complainant in the bill the sum of fifteen dollars per month, to be paid by the respondent, is reversed, and the remainder of said decree i? affirmed, with costs. Upon this condition, however, that the said complainant enter into a bond to the people of this state, in the sum of two thousand dollars, with security to be approved by the master in chancery, or the clerk of the Circuit Court of Greene county, conditioned that the child shall not be removed beyond the jurisdiction of the state, and shall be produced at any time hereafter, upon the order of the said Circuit Court. And the suit must be remanded for such further action as future circumstances may require in the premises.

Decree modified.


author: Opinion of the Court by Treat, C. J.:

text:
    William W. Goforth, administrator of Curtiss Haile, deceased, plaintiff in error, vs. Lyman Adams, defendant in error.

      Error to Madison.

    Yfhere a judgment was recovered in one of tlie counties of another grand division, prior to the organization of the present Supreme Court, a writ of error for its reversal must issue from tlie Court in that division.
    The dismissal of a writ of error puts the case out of the control of this Court.
    The defendant in error entered his motion to quash or abate the writ of error in this cause, and to dismiss it from this Court; assigning for reasons:
    1. That the writ of error issued in the name of William W. Goforth, as administrator of Curtiss Haile, deceased, whereas the transcript of the record on file shows William G. Goforth to be the plaintiff and administrator of Curtiss Haile, deceased, and not William W. Goforth.
    2. At the time of the issuing of the writ of error, and long before, the said William G. Goforth, administrator of Curtiss Haile, deceased, had departed this life, and therefore the writ of error could not be issued and prosecuted in his name.
    B. The writ of error in this case cannot be issued and prosecuted to the Circuit Court of St. Clair county, at the time the same was issued, without the consent or agreement of the parties thereto; and such consent has never been given, nor has such agreement ever been made.

      David J. Baker, for his motion, says :
    A writ of error, is an original writ. 2 Tidd’s Prac., pa. 1134. A writ of error like a set. fa., is considered anew action. Tidd’s Pr., 1141. The test of the writ of error, is the day of suing it out. Ibid, 1144.
    In case of the death of the party against whom judgment is rendered, the writ is to be brought by his executors or administrators, if the judgment was to recover any debt or damages only, or to recover an interest in lands declared by law to be personal assets. Graham’s Prac., 936.
    No person can bring a writ of error to reverse a judgment, who was not a party or privy to the record, or who was not injured by the judgment. 2 Bac. Ab., 456; Euer, B.
    Appeals and writs of error may be taken from the Circuit Court of any county, to the Supreme Court held in the division which includes such county, or, with the consent of all the parties in the cause, to the Supreme Court, in the next adjoining division. State Const., art. 5, sec. 32.
    W. Martin, contra:
    That the transcript upon which the writ issued was filed in this Court in 1847, before the adoption of the new constitution, and that the cause is therefore properly in this Court, and the process was providently, issued, and the defendant is bound under the service, to join in the errors assigned, or the Court will proceed to reverse the judgment.
    D. J. Baker, in reply:
    This was a dead, uncomplaining record in the clerk’s office, until this writ was issued upon it. The writ has issued in the name of Goforth, who, as the record shows, is a dead man. It will he frightful, indeed, if we must be brought into this Court to answer dead men; it is bad enough to answer living ones. We have to meet the ghosts of dead men elsewhere. We do not wish to meet a dead man here, upon this dead record.
   Opinion of the Court by Treat, C. J.:

Lyman Adams obtained a judgment against W. G. Goforth, administrator of Haile, at the May term, 1846, of the St. Clair Circuit Court. The record was filed in this Court at the December term, 1847, and a writ of error sued out in the name of Thomas, public administrator, as plaintiff in error, in place of Goforth, who had deceased. At the last term of this Court the writ of error was dismissed, as having improvidently issued. Thomas vs. Adams, 5 Gilman, 319. On the 20th November, 1849, a second writ of error was sued out, in the name of W. W. Goforth, administrator of Haile, which the defendant in error now moves to dismiss.

The motion must prevail. This court has now no jurisdiction of the case. The judgment was recovered in one of the counties in the first grand division; and a writ of error for its reversal must issue from the Court in that district. The fact that the record was filed here, before the new constitution went into operation, makes no difference. The writ of error first obtained was dismissed, and from that moment the case passed from the control of this Court. The'suing out of the second writ of error was the commencement of a new suit, and when it was issued, this Court, by the express provisions of the constitution, in the absence of any stipulation of the parties, had no jurisdiction over the case.

Motion sustained.


text:
    Richard D. Thompson, appellant, vs. Newton Alexander, appellee.

      Appeal from Cass.

    The “ Act to amend the sixty-sixth chapter of the Revised Statutes, entitled ‘ Limitations/ ” approved February 10,1849, will be so interpreted as to operate only on causes of action accruing after it took effect.
    The rule is inflexible that no statute will be so construed as to give it a retrospective operation, unless such an intention is manifested by clear and unequivocal expressions.
    This was an action in debt, brought in the Cass Circuit Court, by appellee against appellant, on a note dated May 11, 1837, to which action the defendant below pleaded that the cause of action set forth in the declaration accrued more than five years before the commencement of this suit, to wit, on the 11th day of May, A. D. 1838 ; to which plea plaintiff interposed a demurrer; to this there was a joinder. The Court below sustained the demurrer, and the defendant not answering further, judgment was rendered for the plaintiff for his debt and damages, $168 83. From this judgment the defendant prayed an appeal, and assigns for error the sustaining the demurrer to appellant’s plea of the .statute of limitations. Joinder in error. The cause was decided by Woodson, Judge, at October term, 1849.
    H. E. Dummer, for appellant.
    D. A. Smith, for appellee.
   Opinion by Treat, C. J.:

This case depends entirely on the construction to be given to the act of the 10th of February, 1849, which reads as follows:

“ Section 1. Be it enacted by the People of the State of Illinois,, represented in the General Assembly, That all actions of trespass, detinue, trover, and replevin; all actions founded on any promissory note, bill of exchange, book account or simple contract; all actions founded on any promissory note, bond, judgment, contract, or indebtedness executed, rendered, entered into, or accrued beyond the limits of this state, and all actions on the case, shall be commenced within five years next after such recovery, or the cause of such action shall have accrued, and not after. All parts of acts inconsistent with the provisions of this act be, and the same are hereby, repealed.

“ Section 2. This act shall be subject to the same conditions as are provided in the twelfth section of the sixty-sixth chapter of the Revised Statutes, entitled ‘Limitations.’”

By the provisions of the constitution, the act did not take effect until the 13th of April, 1849.

As a general rule, a statute is to operate in futuro only, and is not to be so construed as to affect past transactions. A retrospective effect will not be given it, unless it clearly appears that such was the intention of the Legislature, especially where it tends to produce injustice or inconvenience. Such an intention must be manifested by clear and unequivocal expressions. If it is left doubtful what was the real design, the statute must be so construed as to have a prospective effect only. Prince vs. U. States, 2 Gallison, 204; Whitman vs. Hapgood, 10 Mass., 437; Bruce vs. Schuyler, 4 Gilman, 221; Somerset vs. Dighton, 12 Mass., 383; Hooker vs. Hooker, 10 Smedes & Marshall, 599. Testing the act by these principles, it is clear that the Legislature intended it should have a prospective effect only; and that its provisions should only apply to causes of action arising after it should go into operation. There is nothing on the face of the act which indicates a different intention. It must therefore be so interpreted, as to operate only on causes of action accruing after it took effect. This Court, in the case of Tufts vs. Rice, Breese, App., 30, gave the statute of limitations of 1819 a similar construction.

But this is emphatically a statute that should be restricted in its operation to causes of action arising after its enactment; unless it manifestly appeared that the design of the Legislature was otherwise. Prior to its passage, there was no limitation to actions on judgments recovered out of the state; and actions of debt could be brought on bills of exchange and promissory notes, at any time within sixteen years after the right of action accrued. This act limits the bringing of suits on such demands to five years, thus introducing serious and important changes in the law of limitations, even if the act is to operate prospectively only. The evidence should be clear and conclusive, to induce the Court to hold that the Legislature intended to go still further, and make the act applicable to causes of action previously existing. Very great inconvenience, if not flagrant injustice, might result from such a construction. The act embraces all rights of action accruing on judgments rendered, or contracts made, beyond the limits of the state; and many of such rights of action, if the statute is to retro act, might have been barred the moment it took effect. If a right of action accrued five years before the passage of the act, the creditor, although a citizen of another country, and ignorant of the residence of his debtor, would be compelled to sue within sixty days, in order to avoid the limitation. During that period of time, he might not have any actual notice of the change in the law; or if he chanced to obtain it, he might not be able to ascertain the residence of his debtor, and by commencing a suit, save his cause of action. His remedy might be utterly lost, without fault or laches on his part. Laws liable to such consequences are repugnant to the principles of sound legislation, and inconsistent with a proper regard to the rights of creditors.

But the Legislature is subject to no such reproach. It is evident that no such construction was intended. If any doubt ever existed respecting the real object of the act, it has been fully removed. The same Legislature, at its succeding special session, declared that the act in question should not be “ so construed as to limit or affect the right of action upon any matter of indebtedness, or cause of action, existing or accruing” before its enactment. See the 4th section of the act of November 5, 1849, entitled “An act to amend the several laws concerning limitations of actions.”

The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.


author: Opinion by Mr. Justice Trumbull:

text:
    Michael O’Conner, plaintiff in error, vs. John Mullen, defendant in error.

      Error to Sangamon.
    It is erroneous to enter a judgment in damages, where the action is debt.
    Circuit Courts have authority to allow amendments to their records, during the term at which a judgment is rendered, without notice; and they may allow amendments in matters of form, at a subsequent term, if notice, actual or constructive, has been given to the opposite party.
    Mullen commenced this action in the Sangamon county Circuit Court, by capias, causing O’Conner to be held to bail, and filed his declaration in debt. On the 20th day of March, at the March term, 1846, the defendant, O’Conner, being in default, a a writ of inquiry was awarded, and the jury assessed the plaintiff’s damages at two hundred dollars. It was thereupon adjudged “ that the plaintiff recover of and from the said defendant the sum of two hundred dollars, for his damages, assessed as aforesaid,” and his costs, &c. This proceeding was before Treat, Judge. An amended record shows, that at the August term, 1849, of the said Sangamon county Circuit Court, on motion of plaintiff, the judgment rendered in this cause, at the March term, 1846, was amended so as to make it a judgment that the plaintiff recover of the defendant five hundred dollars, the debt in the plaintiff’s declaration mentioned, to be discharged by the payment of two hundred dollars—the damages assigned by the jury. It was further ordered that the judgment by default be so amended as to state that the plaintiff recover of the defendant five hundred dollars, the debt in the declaration mentioned, to be discharged by the payment of such damages as he has sustained by reason of the breach. The proceedings upon the amended record were before Davis, Judge. O’Conner sued out the writ of error, and assigns for error, that the verdict and judgment are in damages, when they should have been in debt and damages; and that the Court had no authority to make the order amending the judgment, because the defendant below had not any notice of the motion to amend.
    E. N. Powell, for plaintiff in error:
    The whole proceedings in the Court below were erroneous. The first judgment was clearly wrong. The amendment of the record, without notice to the plaintiff in error, was equally wrong. 2d Gilman, Sears vs. Low.
    S. T. Logan, for defendant in error:
    The clerk was guilty of a misprison in entering up the first judgment; this was, therefore, subject to be corrected. No complaint that amended judgment is for too large an amount.
    It was simply correcting the judgment in a matter of form. The means of correcting the judgment are in the record; no new matter of fact was to be furnished, or new inquiry instituted. The defendant, if he had been notified, could not possibly offer any objection to the amendment, and therefore notice to him was unnecessary and useless.
    Powell, in reply:
    It was an amendment which might affect the rights of the parties, and therefore notice was necessary. Resort should have been had to this Court to correct the error. The error was incurable in the Court below. Heyl vs. Stapp, 3 Scam., 95; Jones vs. Loyd et al., Breese, 174.
   Opinion by Mr. Justice Trumbull:

This was an action of debt, commenced by capias, which was duly served upon O’Conner, who was the defendant below. The declaration is upon a bond for the conveyance of land, and claims five hundred dollars debt, and three hundred dollars damages. Judgment was entered by default, a writ of inquiry awarded, and the damages assessed at two hundred dollars; whereupon the Circuit Court, at its March term, 1846, entered judgment that the “ plaintiff recover of and from the defendant the sum of two hundred dollars, for his damages assessed as aforesaid,” but omitted to enter any judgment for the debt. This Court has repeatedly decided, that it is erroneous to enter up judgment in damages, when the action is debt. Mayer vs. Hutchinson, 2 Gil., 266.

To obviate the objection to the form of the judgment, the defendant in error, since the record has been pending in this Court, has had the judgment amended in the Circuit Court, so as to make it a judgment for the debt, in the declaration mentioned, to be discharged upon the payment of the damages assessed by the jury; and the amended record is now filed in this Court. The amendment was made at the August term, 1849, of the Sangamon Circuit Court, and it is objected, that that Court had no authority to make the amendment at a term subsequent to the one when the judgment was rendered •, or, if it had such authority, that it was erroneous to allow the amendment, except on notice to the opposite party. As to the first point, we have no doubt of the authority of the Circuit Court to allow the amendment. It was the correction of a judgment in a matter of form only—of a mere clerical error, which all courts have the power, in their discretion, at any time to allow. The case of Hunter vs. Sherman, 2 Scam., 539, is decisive of this point. But in that case, which shows the amendment of a record in a similar manner, and under similar circumstances as in this, it will be observed that notice was given of the application to amend, and we think notice should have been required in this case also. During the term that judgment is rendered, and while the record is before the Court, an amendment of this character could properly be made without special notice to the opposite party, as he is then in Court, but after the term is passed at which the judgment is rendered, the parties are no longer before the Court, and have a right to regard the case as finally disposed of. If amendments are allowed at subsequent terms, it should only be upon actual or such constructive notice to the opposite party, by advertisement or otherwise, as the Court where the application is made may prescribe, when the parties are so circumstanced as to render it impracticable to give actual notice. Between the time of the entry of the original judgment and making the amendment, rights of third persons may intervene, or those of the parties may be so altered as to be affected by the amendment. Hence the importance of giving notice, so that the court may, if it thinks proper, allow the amendment, upon such terms as the parties may be able to show will be just in the premises. It is a fundamental principle, that a party is never to be proceeded against, and his rights judicially determined, without notice; and an order or judgment entered against him in a matter whereof he has not been actually or constructively notified, has been held a nullity, even though no notice was expressly directed by statute. Chase vs. Hathaway, 14 Mass., 222.

It may be, that in this particular case, the defendant below, if notified and present, could not have shown any reason why the amendment should not have been allowed, but in some other case it may so happen that a good reason may exist, why a judgment should not be amended at a- subsequent term, even so as to correct a formal or clerical error, except it be upon terms so as to protect intervening rights. The law acts by general rules, and will not allow an amendment to be made without notice to-day, and require notice to-morrow, where the cases are essentially the same.

To allow a party, after a lapse of several years from the time judgment was entered, to come into Court, and on his ex parte motion, without notice to the opposite party, amend the record, would be establishing a most dangerous rule, and rendering the records of the Courts, which should be fixed and stable, altogether uncertain and unreliable.

The judgment of the Circuit Court is reversed, and the cause remanded.

Judgment reversed.


author: Opinion by Mr. Justice Catón :

text:
    Murray McConnel, plaintiff in error, vs. Thomas Holobush, Augustus R. Burbank and Holoway W. Vansyckle, defendants in error.

      Error to Pike.

    A mortgagee who enters upon the mortgaged premises for condition broken, must account for the rents and profits actually received, or which might have been received by reasonable care and prudence. These must be credited as so much paid upon the mortgage, from year to year; first in extinguishment of the interest, and then of the principal.
    A mortgagee in possession is authorized, and even bound, to lay out money to keep the estate in necessary repair, and to preserve it; but he is not authorized to make new improvements, and tack the expense to the amount due upon the mortgage, or pay it out of the rents and profits; except under very extraordinary circumstances.
    Where improvements are made in good faith, by a party who believed he had made a valid purchase of the premises, and the expenditure wa3 a judicious one for the benefit of the estate, such party may be allowed for them.
    Where a. bill or answer is not pertinent, or unnecessarily reflects upon the opposite party, such portions of it should be stricken out, at the cost of the solicitor so oifending.
    Only material facts, clearly and succinctly set forth, should be stated, either in a bill or answer, and neither suitors nor solicitors should be allowed to manifest their personal feelings upon the records of the Court.
    On the seventh day of July, A. D. 1849, Murray McConnel filed his hill of complaint in the Pike Circuit Court, representing that one Mark W. Delahay, on the 18th of September, 1839, purchased of John Manchester the property known as the Naples ferry, together with certain lands described in the bill, which were conveyed to him by deed, duly acknowledged &c., for $9,000. That on the 11th day of October, 1839, one John Matthews, one of the defendants, then having or expecting to have some interest in said land and ferry, for the sum of $3,000, sold and conveyed the same to said Delahay. That on the said 11th of October, Delahay, being indebted to said John Manchester, in the sum of $2,700, due twelve months thereafter, secured the same by a mortgage upon said land, (not including the ferry) which mortgage was duly executed &c. That after-wards, to wit, on the 14th day of February, 1840, said Delahay, for the sum of $2,200—$200 to him in hand paid, sold and conveyed the said land and ferry to said McConnel, by deed &c., and gave him possession. That the said John Manchester was indebted to one William McKee, executor of Jesse McKee, deceased, and on or about the 10th of January, 1843, said McKee, as executor, filed a creditor’s bill in the Pike Circuit Court against the said John Manchester, John Matthews and others ; the object of which bill was to subject the debt due from Delahay to Manchester, to the payment of the debt due from Man-Chester to McKee, executor &c., and to sell the interest said John Manchester had in the lands, through and by virtue of said mortgage from Delahay to Manchester, to pay the debt due from Manchester to McKee. In that suit such proceedings were had as that, on the 8th of April, 1848, a final decree was had in favor of McKee, executor, directing the payment to him of the sum of $2,617 93, within ninety days, and that in default of such payment, the said land, or so much thereof as would be sufficient to pay the said debt, should be sold.
    McConnel sets up that he is the owner of said land and ferry, subject only to the said mortgage from Delahay to Manchester, and that the object and intention of his bill is to be permitted to redeem said land from said mortgage. With that view he was ready to pay said McKee the amount of said decree, but that upon application to McKee for that purpose, he informed him, McConnel, that he, McKee, had no interest in said decree, but that he had sold all his interest therein to John Matthews, Thomas Holobush and Augustus R. Burbank, and that he, McKee, would not receive said money. That McConnel was then informed by D. A. Smith, solicitor for said Matthews, Holobush and Burbank, that they would not receive said money; that they denied the right of McConnel to pay said money or to redeem said land from said mortgage; hut said Matthews, Holobush and Burbank claimed as purchasers from said McKee, that they had a right to sell said land and ferry to raise the money decreed to be paid, and that they should do so, without regard to McConnePs rights. That the said John Manchester and his wife are dead, and that the said John Matthews is administrator of said Manchester, and that no others than the said Holobush, Matthews, Burbank and the estate of the said John Manchester, have any interest in said mortgage or the money therein secured to be paid. Admits that the sum of money is due as stated by the decree, but that said parties are indebted to complainant in a much larger sum, for the rents, issues and profits arising from said lands and ferry &c., which should be applied in satisfaction of that decree. That neither Delahay nor McKee, as executor, have any interest in said land and ferry. That said Holobush, Matthews, and Burbank, have no interest in said land or ferry, except as they claim under said mortgage, and that that claim has been extinguished by said use and occupation. That they retain possession of said land and ferry, and refuse to account for the profits &c., and insist upon their right to sell the land under the decree. Prays that he be permitted to pay off the mortgage and redeem the land &c.; that an account may be taken of said rents and profits of said land and ferry, and that he be put in possession thereof.
    This bill was subsequently amended, alleging the insolvency and pecuniary embarrassment of Matthews, Holobush and Burbank, and they were enjoined from selling said land and ferry. Matthews, Holobush and Burbank answer, admitting the truth of the bill, except as follows : They deny that the deed of the 14th February, 1846, from Delahay to McConnel, was absolute, but aver that it was but a mortgage, to secure the payment of a debt of $1,500 or $2,000 due to him, one Yansyckle, and another. They deny that complainant has any title to the premises, but admit he might have had, if he had redeemed in time, but has not now a right to redeem. They deny that complainant offered to pay McKee, or that he refused to receive the money. They deny that they are indebted to the complainant for rents &c., or on any other account. Aver that, on the 18th June, 1845, McKee sold to John Matthews his interest in the land and the judgment &c., mentioned in the bill, and on the 25th of June, 1845, he sold two-thirds thereof to the other defendants. That respondents erected a warehouse on the premises in the fall of 1845, after McKee had obtained a title to the premises, under the decree against John Manchester, which was reversed, and before any steps had been taken to procure a reversal of that decree; which warehouse cost $1,100. They deny that they took possession of said land and ferry &c. prior to the 18th of June, 1845. They aver that they purchased of Thomas Manchester his interest in the premises on the 25th of April, 1848. And that at April term, 1848, McKee, as executor, obtained a judgment by confession against the defendant, John Matthews, as administrator of John Manchester, for the use of the defendants, for $980 21 debt and $480 29 damages. That in a suit by complainant against Delahay, to foreclose his mortgage before referred to, a decree was entered by agreement, extinguishing his claim against Delahay, and transferring Delahay’s title to the complainant.

      John Matthews died, and Holobush, as his administrator, appears and answers. Vansyckle was appointed administrator of John Manchester, in place of John Matthews, deceased, who appears and answers and admits the sale to and mortgage from Delahay, as charged in the bill. That no part of that mortgage was ever paid to intestate or his administrator, and claims the balance due on the mortgage, after deducting the amount of the decree in favor of McKee. Does not claim any interest in the land except to secure payment See. That the sale by John to Thomas Manchester of the mortgage, and the foreclosure and purchase by Thomas, were fraudulent and void, and that at the time of his death, J. Manchester was indebted to others besides McKee, in the sum of $3,000, and among others to Vansyckle; and in proof of the fraud, refers to the decree in McKee’s case.
    The exhibits referred to, and filed with the bill and answers, are not necessary to an understanding of the opinion.
    Proofs were taken of the erection of the warehouse, and of its value, also as to the annual value of the lands and ferry franchise, and also as to the solvency of the respondents of the bill. But these proofs are uncertain and indefinite, and not useful in the examination of the points decided.
    On the 22d of Sept., 1849, this suit was heard before Min-shall, Judge, upon bill, amended bill, answers thereto and replications, exhibits, depositions and other proofs, when the injunction was dissolved, and the bill dismissed with costs.
    McConnel, the complainant below, sues out this writ of error.
    M. McConnel,pro se, claims:
    That he stands in the place of Delahay, as to this mortgage, and has the right to redeem from the same; and is not barred by the proceedings in favor of McKee against Manchester and others. Hubbel vs. The Adm’rs and Heirs of Bradwell, 8 Ohio, 227; Ormsby vs. Phillips, 4 Dana, 233; Stapp vs. Phillips, 7 Dana, 300; Watson vs. Phelps, 20 Wendell, 260; Henderson vs. Stuart, 4 Hawks, 256; Sands vs. Frost, 5 Pickering, 267.
    Complainant claims the rents and profits from the defendants, upon the ground that he is the owner of the land, having the right to redeem, and that they occupy the position of mortgagees in possession of the mortgaged premises, and bound to pay rent to the mortgagor; first, to be applied to the payment of the interest yearly, as the same accrued, and then to the payment of the principal. And if so applied, the defendants would be indebted to him. Revised Statutes of 1845, page 93, section 3 j 2d United States Chancery Digest, p. 236, sec. 7, and p. 202, sec. 19; Tirrel vs. Merril, 17th Mass. Rep., 117; Bainbridge vs. Owen, 2 J. J. Marshall, 467; Saunders vs. Frost, 5th Pickering, 270; Reed vs. Reed, 10th Pickering, 398; Van Buren vs. Olmstead, 5 Paige, from 9 to 18.
    The defendants claim compensation for building a warehouse on the premises, before the commencement of this suit. To which complainant objects, and cites the following authorities to prove that they should not be paid therefor. 5 Gilman’s Rep., Smith vs. Sinclair, p. 108; Reed vs. Reed, 10 Pickering, 398 to 401.
    The complainant admits that the question of costs is within the discretion of this Court, and claims that, owing to the course pursued by the tenants in possession, in defending this suit, and refusing to account for rents and profits, they are in duty bound to pay all the costs. Saunders vs. Frost, 5 Pickering, 273 and 274.
    David A. Smith, for defendants in error *.
    The decree that was rendered at the April term, 1848, of the Circuit Court of Pike, in favor of McKee, executor of McKee, deceased, vs. The heirs of John Manchester, deceased, McConnel and others, was for a sale of all the right, title and interest of the parties to that suit, of, in and to certain real estate described in the decree, to pay and satisfy to said McKee, as executor, certain judgments against John Manchester and others; the said John Manchester having alienated fraudulently a certain mortgage (the oldest incumbrance on the property in controversy) to Thomas Manchester, and he having foreclosed the same and bought in the property on the 18th day of December, 1841. (See master’s deed to him 7th June, 1843, recorded 9th Sept., 1843.) The decree of the 8th of April, 1848, so extinguished, or rather settled, the subsisting equities of the parties to the same; that they have no right to go behind the decree, and assert any equity originating before the decree. If such a course of practice is tolerated, there will be no end to controversy, and nothing can possibly be accomplished by a final judgment or decree, in the way of binding the interests or equities of the parties thereto. McConnel is claiming a right to redeem from a certain mortgage, and an account of rents and profits, all dating long before said decree. He does not pretend to assert any equity, having its origin since the decree. In the teeth of that decree, for the sale of his interest in the lands in controversy, he says he is the owner of the lands by virtue of a conveyance dating in 1840, and that he is entitled to an account of rents and profits of the same since 1843. In what does such a pretence differ from any case in which the lands of a defendant are to be sold by judgment or decree of Court? Could he be heard to allege against the execution of such judgment or decree, that he was the owner of the lands, and entitled to an account of the rents and profits ? If so, a plaintiff or complainant, who seeks the execution of a judgment or decree for the sale of lands to satisfy his demands as a judgment or decree creditor, may travel in a perfect and perpetual circle, and will never attain his right. Sucha proposition is so preposterous that it only needs to be named, in order to be condemned, as absurd and unjust to the very last degree.
    We have no more right to go behind the decree of April, 1848, to assert any equity, than the complainant in this case has.' On this principle we cannot claim compensation for the warehouse we built in the fall of 1845. But if the decree of April, 1848, is to be disturbed as to any of its legal consequences, and against which we protest, and we are to be held answerable for the rents and profits since June, 1845, then for every permanent and valuable improvement to the property, made before the complainant proceeded to reverse the decree of the September term, 1844, we are, on equitable principles, entitled to reimbursement for the value of the same: because we made them after the strife was apparently ended by a decree of the Circuit Court, in which all the parties to the same were acquiescing when the improvements were made.
    The improvements that may be made by a party to a suit pendente lite, he has no right to claim reimbursement for, on the principle, pendente lite nihil innovitur. No impediments ought to be thrown in the way of a mortgagor, or those claiming under him, when the right to redeem is properly asserted. If a mortgagee or his assignee could, before foreclosure, or during the pendency of a suit to redeem, be allowed for permanent and valuable improvements, by an extravagant application of means for improvement, he could generally so embarrass the right of redemption, that it would (if not beyond the means of the mortgagor or his assignee,) be worth little or nothing. But not so in regard to improvements made after the foreclosure of a lien and sale, and where all the parties to the foreclosure are acquiescing in the same. If any of them afterwards become dissatisfied with the decree, and procure its reversal, and successfully assert a claim for rents and profits accruing before the reversal, can any thing be more manifestly equitable than that they should account for the increase in the value of the subject matter of controversy, when that increase was had or made before the movement of strife, to reverse or modify the decree? He that would have equity must do equity. See case Manchester and others vs. McKee, executor of McKee, 4 Gilman, 511; Smith vs. Sinclair, 5 Gilman, 108; The People on relation of McKee, executor, vs. Gilmer, ibid, 242.
    Admitting, only for the sake of argument, that the defendants are indebted to the complainant for rents and profits, he cannot enjoin the execution of the decree, because there is no proof of their insolvency, and his remedy would be by action of debt or assumpsit.
   Opinion by Mr. Justice Catón :

This bill was filed by the complainant, to'redeem frcm a mortgage, executed by his grantor prior to the date of his conveyance. The mortgage was executed to John Manchester, on the 11th day of October, 1839, for <f 2,700. On the 10th of January, 1843, McKee, a judgment creditor of Manchester, filed a bill against'him and others, to subject his interest in the mortgaged premises to sale, to satisfy his judgments 5 and on the 8th of April, 1848, a decree was entered in the Circuit Court, in obedience to a mandate of this Court, directing the defendants in that suit, or some of them, to pay to McKee the sum of $■: 2,617 93, within ninety days, or that the premises be sold. The present complainant was one of the defendants in that suit. Pending the former suit, in June, 1845, McKee assigned his claim against Manchester to John Mathews, who shortly afterwards assigned two-thirds of the claim to Holobush and Burbank. Mathews seems to have had possession of the premises, or apart of them, since some time in the year 1843, and Holobush and Burbank went into the joint possession with him, under their claim, in June, 1845, the time when they acquired their interest, and have since that time erected a warehouse upon the premises, at an expense of $1,100, and have enjoyed the rents and profits of the whole premises, and, as is alleged, have committed waste on the premises, which the complainant prays to have applied in extinguishment of the amount due upon the decree'and mortgage.

Previous to the filing of this bill, John Manchester died, and Mathews was appointed administrator of his estate, who was made a defendant, as well in his representative as in his individual capacity. Since the bill was filed Mathews has died, and the defendant Holobush was appointed administrator of his estate, and Yansyckle was appointed administrator de bonis non of the estate of John Manchester, deceased, and as such, was made defend-. ant, appeared and answered. This is the substance of the facts, as established by the pleadings, exhibits and proofs, in this record, upon which the rights of the parties are to be determined, except as to the amount of the rents and profits. Although some allusion is made in the answers to the proceedings in all of the various suits, which have at different times been pending in this and in the Circuit Court, yet they were not made exhibits, nor were they produced upon the hearing, and, consequently, we cannot look into them to see whether the rights claimed by the complainant would be affected by them or not, except the decree rendered by the Circuit Court of Pike county, in the case of McKee vs. Manchester et al., which was made an exhibit by the bill, and a certified copy of which was produced on the hearing.

The case then is simply this : McConnel purchased certain premises, subject to a mortgage. McKee became entitled to a ]>art of the money due on the mortgage, and obtained a decree for thq sale of the premises, to pay his claim. McConnel filed this bill against the assignees of McKee, and the administrator of the estate of the mortgagee, and seeks to disencumber the land by the payment of the amount due upon the mortgage, to those entitled to receive it 3 and asks that certain rents and profits, received bythe assignees of McKee, be applied in extinguishment of the amount due them. The case when thus simplified, presents no difficulty of sufficient importance to invite discussion. It is certainly not necessary to cite authorities, to show that the grantee of the mortgagor may file a bill, to redeem from the mortgage, and have it satisfied. The fact that a part of the money secured by the mortgage, has become duetto other parties than the mortgagee, cannot affect this right. It is true that MeConnel was a party to the suit, in which the right of McKee was established to a part of the money secured by the mortgage, but this in no way abridges his right to redeem, but the decree in that case rather confirms such right, for it authorizes any of the defendants in that suit to pay the amount decreed to McKee. No complaint can be made against the present complainant, because he did not interpose a defence there. The truth is, he had no defence, nor does he now pretend that he had any. He had nothing to say why McKee should not be declared to be entitled to a part of the money secured by the mortgage. It was a matter of indifference to him, to whom the money went. At the time that case was set for hearing, in 1844, he had no claim against McKee, or his assigns, for rents and profits, and, consequently, nothing to allege in diminution of their claim. If he had had such claim, then it would have been lost by his not having interposed it, when he had an opportunity. But McKee’s assignees did not go into possession under that claim, till June, 1845, which was some time after that cause was set for hearing, and, consequently, he had no opportunity of setting up the rents and profits since received. Surely he must have a right to set up subsequent equities.

The rights of the defendants, as assignees of McKee, to an interest in or lien upon this land, were derived from and depend upon the mortgage, and by virtue of those rights they maintained the possession, and received the rents and profits 5 and their possession was to the extent of those rights, the same as the possession of a mortgagee under the mortgage. A mortgagee who who enters upon the mortgaged premises for condition broken, must account for the rents and profits actually received, or which might have been received by reasonable care and prudence. Van Buren vs. Olmsted et al., 5 Paige, 9. This amount must be credited as so much paid upon the mortgage, from year to year, first in extinguishment of the interest, and then of the principal. That rule, however, should only be applied, in this case, to the extent of the defendants’ interest in the mortgage, as assignees of McKee. And should the rents and profits exceed the amount due them, the excess cannot he applied in satisfaction of the balance due upon the mortgage, which goes to other parties ; but the complainant may have a decree against them, for the excess, should there be any. It is true, that Matthews, one of the original defendants, was, at the time the bill was filed, administrator of the mortgagee, but he was in possession, not as such administrator, but as assignee of McKee, and hence the estate of Manchester ought not to be held responsible for any portion of the rents and profits received by him.

Almost the only new fact set up in the answer, which is sustained by the proof, is the erection of the warehouse upon the premises, by the defendants. For this they claim an allowance.

A mortgagee in possession is authorized, and even bound, to lay out money to keep the estate in necessary repair, and to preserve it; but he is not authorized to make new improvements, and tack the expense to the amount due upon the mortgage, or pay it out of the rents and profits, except under very extraordinary circumstances. Smith vs. Sinclair, 5 Gilm., 108. It was argued as if the record showed that this improvement was made after the premises were purchased by the defendants, under the first decree, in favor of McKee, and before that decree was reversed, and the sale to them under it set aside by this Court, as reported in 4th Gilman. Unfortunately the proper evidence of those proceedings is not found in this record, and we cannot base a decree upon the evidence of the facts found in a reported case. Were these facts properly established, and were we convinced that the improvement was made in good faith, the defendants believing that they had made a valid purchase of the premises, and that the expenditure was a judicious one, for the benefit of the estate, we think they should be allowed for them. And, as the case will have to be remanded, we think it but just and equitable that the defendants should be allowed to amend their answer, so as to insert the proper averments, and make the necessary exhibits, to prove the facts we have alluded to; but no other amendments must be allowed. Should the defendants not be allowed for the erection of this warehouse, then, in taking the account of the rents and profits, the use of the warehouse should be excluded; but if they are allowed for it, then they should allow for its use. Upon this basis, we have not before us the necessary data upon which we can, satisfactorily, compute the amount with which the defendants should be charged.

The decree, therefore, will have to be reversed, and the suit remanded, with leave to the defendants to make the amendments we have specified, and with directions to the Circuit Court to enter a decree establishing the right of the complainant to redeem, by paying the amount, if any thing, due to the assignees of McKee; and by bringing into the Circuit Court, subject to its future order, the balance that shall be found due upon the mortgage, after deducting the amount decreed to McKee, as so much money paid at the date of that decree. The Circuit Court will also be directed to determine, whether the defendants are entitled to an allowance for the erection of a warehouse upon the mortgaged premises, according to the principles above laid down, and to take an account of the rents and profits of the mortgaged premises, for which the defendants are responsible, and of the waste committed by them on the mortgaged premises, if any, and to set off the same against the amount due to the defendants as assignees of McKee, and the amount, if any thing, which they shall be allowed for the erection of the warehouse. And if any thing shall be found due to the defendants Holobush and Burbank, that the complainant be decreed to pay the same to them. Holobush to receive one-third part thereof, as administrator of John Mathews, deceased. And if it shall be found, upon taking said account, that any thing is due to the complainant, a decree for the same be entered in his favor against the said Holobush and Burbank. One-third part thereof to be paid out of the estate of the said John Matthews, deceased, if there are assets in the hands of the administrator sufficient to pay the same.

The question of costs alone remains to be considered. Ordinarily, upon a bill filed to redeem, the complainant does not recover costs; and most frequently he has to pay costs to the defendant, although he obtains a decree in his favor. In this case, however, the complainant seeks other relief than that of a mere right of redemption. One object of his bill is to establish his right to rents and profits, and to have them set off against the amount due the defendants. In this case, also, a considerable portion of the depositions taken by the defendants, were upon an entirely immaterial point, and quite unnecessary. Most of the answer, too, is either not pertinent, or unnecessarily and improperly reflects upon the opposite party, and upon motion in the Circuit Court would have been stricken out, at the cost of the defendants’ solicitor. Only material facts, clearly and succinctly set forth, should be stated either in a hill or answer, and neither suitors nor solicitors should he allowed to manifest their personal feeling upon the records of or before the Court ; and this, we hope, is the last time that we shall he called upon to notice so reprehensible a practice, by any one.

In the Circuit Court each party will have to pay his own costs, except the costs of the defendant Vansyclde, which must be paid by the complainant.

Decree reversed.