author: Treat, C. J.

text:
    Chalon Guard et al., Appellants, v. James A. Whiteside, Appellee.
    APPEAL EROM HARDIN.
    A covenant never to sue is regarded as an absolute release. But a covenant not to sue for a limited time cannot be pleaded in bar of an action brought before such time has expired.
    If a covenant not to sue for a limited time is broken, the party aggrieved must bring an action for a breach of the covenant.
    This was an action of debt brought in the Circuit Court of Hardin county, upon an injunction bond. The appellants filed a plea in bar, stating that on the 10th day of April, 1851, it was agreed between the parties to the suit that if the appellants would give the appellee a horse worth seventy-five dollars he would not bring suit on the bond until the 25th of December, 1851; that the horse was delivered in pursuance of this agreement. To which plea there was a demurrer, which was sustained ; and the appellants not answering further, the court, Denning, Judge, presiding, rendered a judgment for the penalty of the bond, to be discharged by the payment of $594.34 damages, which were assessed by the court, by agreement of parties. The error assigned was the sustaining of the demurrer to the plea.
    The action was commenced in July, 1851.
    T. G. C. Davis, for appellants.
    S. S. Marshall and W. K. Parish, for appellee.
    The plea alleges an agreement not to sue for a limited time. Such an agreement does not amount to a release of the obligor’s right of action; he may proceed by suit at any time. 6 Wend. 471; 19 Johns. 129; Bacon’s Abridg. letter A, 2, vol. 8, page 248; 6 Munf. 8; 2 Williams’s Saund. R. 48; 3 Mee. & Welsby, 210; 8 Pick. 229; 11 Id. 159; 2 Johns. 447 ; 4 Mass. 414; 3 Bibb, 247; 4 Greenl. R. 421; 15 Mass. 112.
   Treat, C. J.

The defendants pleaded in bar of the action, that, before the commencement thereof, the plaintiff agreed with one of them to forbear the collection of the bond until the 25th of December, 1851, if said defendant would pay and deliver a certain horse at the price of $75, which horse was then delivered. The agreement relied on in the plea must be considered as an undertaking by the plaintiff not to sue on the obligation within a specified time. A covenant never to sue is regarded as an absolute release. It is so held to avoid circuity of action; for, if the covenantor should be permitted to sue in violation of his ¿ovenant and recover, the other party, in an action for a breach of the covenant, would recover precisely the same damages. But a covenant not to sue within a limited time cannot be pleaded in bar of an action brought before the time has expired. The remedy of the party is a direct action on the covenant. The law on this subject is too well established to admit of doubt or discussion. It is only necessary to refer to some of the principal authorities. Thimbleby v. Barron, 3 Mees. & Wels. 210; Winans v. Huston, 6 Wend. 471; Perkins v. Gilman, 8 Pick. 229; Walker v. McCulloch, 4 Greenl. 421; Ward v. Johns. 6 Munf. 6; Lane v. Owings, 3 Bibb, 247. There is a very satisfactory reason why a plea in bar of the action should not be sustained. A judgment for the defendant, on such a plea, would for ever conclude the plaintiff from bringing another action. There would seem to be a propriety in allowing a defendant to set up the covenant, as a defence to the further maintenance of an action brought in violation thereof—such a defence as would defeat the particular action, without concluding the plaintiff from bringing another after the time limited had expired. But we must be understood as expressing no opinion upon the question, whether the rules of the law will tolerate a defence of this character.

The judgment is affirmed.

Judgment affirmed,.


source: Caselaw Access Project

license: Public Domain

text:
    James McFarlan et al. v. The People of the State of Illinois.
    ERROR TO HARDIN.
    A recognizance in the form of a penal bond, conditioned as required by law, is valid and a scire facias lies upon it.
    A recognizance entered into before two justices, which by law would have been legal if taken by one justice, is not thereby invalid.
    Where a scire facias upon a recognizance avers that the recognizance was entered into before, and approved by, the justices, and afterwards filed with the clerk of the Circuit Court, whereby it became a record of that court, it is sufficient, notwithstanding the recognizance set forth in the scire facias does not appear upon its face to have been taken and approved by the justices, and by them certified into the Circuit Court.
    Justices of the peace have authority by law to take a recognizance in all cases where the offence is bailable; and where a scire facias avers that the persons before whom the recognizance was entered into were justices of the peace for the county in which it was taken, this is sufficient, and the court, on demurrer, will presume that the charge was regularly preferred, and examined, and the proper adjudication made by the justices, before the recognizance was acknowledged.
    It is not erroneous to enter judgment against two of several cognizors, where the others have not been served with process, or two nihils returned as to them.
    Where a clerk fails to indorse upon a recognizance the time of the filing of the same in the Circuit Court, he may make the indorsement at a subsequent term, nunc pro tunc, under the order of the court.
    This was a scire facias upon a recognizance, tried before the Hon. William A. Henning, in the Hardin Circuit Court, at the April term, 1851; at which time a judgment was rendered in favor of the defendants in error, and against the plaintiffs in error, for the sum of $500.
    The scire facias was in the words and figures following, to wit:
    State of Illinois, Hardin County, ss. The people of the State of Illinois to the sheriff of said county, greeting: Whereas Benjamin Spriggs, Charles C. Guard, and James McFarlan, of, &e., did on, &c., before Peter Holland and Thomas Converse, justices of the peace in and for the county of, &c., severally bind themselves unto the people of the State of Illinois in the penal sum of five hundred dollars, as follows, to wit:
    Know all men, <&c., that we, Benjamin Spriggs, Charles C. Guard, and James McFarlan, are held, &c., unto the people, &c., in the penal sum of $500, &c. The condition of the above obligation is such that whereas Benjamin Spriggs, having been accused of the charge of being guilty of the accessary of the manslaughter of a certain Thomas Coleman, lately found in the vicinity of Lewis’s Road of said county: Now if the said Benjamin Spriggs shall be and appear before the judge of the Hardin Circuit Court on the 18th day of the next October term of the Hardin Circuit Court, and answer to the charge of said manslaughter, and not depart without the leave of the said court first obtained, and shall well and truly abide decision of said court, and then this obligation to cease; otherwise, to be and remain in full force and virtue.
    Attest, Peter Holland, Benjamin Spriggs, [seal.]
    Thomas Cowserx. Charles C. Guard, [seal.]
    James MoFarlan. [seal.]
    And the said plaintiffs aver that the said Peter Holland and Thomas Cowserx, before whom the said recognizance was executed and approved, were acting justices of the peace in and for the county of Hardin and State of Illinois, duly authorized to accept and approve of recognizances in such cases made and provided; and it is further averred that afterwards, to wit on the day of , in the year 18 , the said recognizance was filed in the clerk’s office of the Hardin Circuit Court as a matter of record in said court; and afterwards, to wit on the 22d day of October, in the year 1846, at a Circuit Court held in and for said county at the court-house in Elizabethtown, came the people, by their attorney, and the said defendant Benjamin Spriggs, being three times solemnly called, came not, but made default; we therefore command you to summon the said Benjamin Spriggs, &c.
    To this scire facias the defendants Guard and McFarlan, appeared and filed their demurrer, and assigned the following special causes:
    1. Because there are blanks in the said scire facias.

    2. Because there is no averment that said recognizance was returned into court and made a matter of record in said cause.
    3. Because there was no certificate of the justices of the peace approving said recognizance.
    4. Because there is no such recognizance as described in the scire facias.

      This demurrer was overruled, and judgment rendered thereon as aforesaid.
    During the progress of the cause in the court below, the people, by their State’s Attorney, filed the affidavit of the clerk of the court, in which the said clerk deposed that the recognizance aforesaid was filed in his office on the 9th day of September, 1846, by the justices aforesaid, and that he had omitted to make the usual indorsement thereon. The people thereupon moved that the clerk should be directed to file said recognizance, nunc jpro tunc. This motion was sustained, and the indorsement made accordingly. An exception was made by the defendants to the ruling of the court, and the facts aforesaid embodied in a bill of exceptions. The defendants prosecute a writ of error upon the following assignments: 1. Overruling their demurrer to the scire facias aforesaid; 2. Rendering judgment for the said people.
    W. B. Scates, for the plaintiffs in error.
    One justice of the peace is constituted a court for the purpose of inquiry, and commitment, and taking recognizance for manslaughter. Rev. L. 1845, p. 191, § 203.
    In case the justice commits, it is his duty to take a recognizance for his appearance. Ibid.
    And which shall, when not taken in open court, be certified, by the judge or justice. Id. § 205.
    A similar provision is made in certifying by sheriffs. Id. p. 183, § 175.
    Execution cannot be awarded on sci.fa. until all the parties are brought into court. 1 Gill’s R. 110.
    And there should be actual service of the sci.fa. 2 Scam. R. 306.
    There is a distinction between this case and that of Shattuck et al. v. The People, 4 Scam. R. 478, because there the bond had been properly certified by the justices; and in a case, in which two were required to sit. But in this case, the law authorized one to sit, and to certify the recognizance, yet we find two justices witnessing the bond merely, and neither of them certifying. And had either certified, it would still be impossible to determine which sat in the case as the court of inquiry, and which as adjunct by courtesy. The law does not require an attestation by way of witness, but an official certificate of its having been entered into, and approved. 7 Dana, 243; 6 Mon. 43; 4 B. Mon. 418; 6 Blackf. 314; Noble v. People, 4 Gill’s R. 434; Sans v. People, 3 Gill’s 327 ; 2 Sup. U. S. Dig. 681, § 33. The recognizance itself must show the court where it was taken. 6 Yerg. 354.
    W. K. Parish, State’s Attorney, and R. F. Wingate, for the defendants in error.
    The approval of the recognizance in this case, by two justices of the peace, will not vitiate the same, although one justice might have taken it. Are the cognizors prejudiced thereby? The useless shall not vitiate the useful.
    The recognizance is witnessed by, or certified by the officers taking the same. This is a substantial compliance with the statute. The recognizance was returned into court by officers duly authorized to take the same. The sci.fct. in this respect is sufficient on demurrer. The State v. Cherry, 1 Meigs, 232; Suplement to 2 U. S. Dig. 684, § 98; Id. 681, § 142; Ross v. The State, 6 Blackf. 314; Starr v. Commonwealth, 7 Dana, 243; Commonwealth v. Kimberlain, 6 Monroe, 43 ; Commonwealth v. Miller, 4 B. Monroe, 418 ; Shattuck v. People, 4 Scam. 477.
    Execution may be awarded on a sci.fa. against those of the cognizors who have been served, or who enter their appearance, where the recognizance is -joint and several, without a return of two “ nihils ” against the other cognizors or personal service on them. Sans v. People, 3 Gill, 327; Crisman v. People, Id. 351; Passfield v. People, Id. 406.
   Treat, C. J.

First. It is contended, that the obligation set out in the scire facias is not a recognizance. It is in the form of a penal bond, with the condition of a recognizance. It was held, in Shattuck v. The People, 4 Scammon, 477, that such an obligation, under our statute, has the force and effect of a recognizance, and that a scire facias may issue upon it as such. That decision fully disposes of this objection.

Second. It appears, from the scire facias, that the recognizance was entered into before two justices of the peace, and it is insisted that it is void for that reason, inasmuch as the charge of manslaughter was examinable by one justice. It is very true, that one justice had jurisdiction of the charge and might legally have taken the recognizance, but the obligation is none the less valid, because another justice was associated with him.

Third. It is objected, that the recognizance copied into the scire facias, does not appear on its face, to have been taken and approved by the justices, and by them certified into the Circuit Court. The scire facias, however, contains an express averment that the recognizance was entered into before, and approved by the justices, and was afterwards filed with the clerk of the Circuit Court, whereby it became a matter of record in that Court. This allegation is admitted by the demurrer to be true, and it is clearly sufficient to sustain the judgment. Under it, if put in issue, the people could have shown that the recognizance was taken and approved by the justices, and by them transmitted into the Circuit Court. The case of Noble v. The People, 4 Gilman, 433, does not lay down a contrary doctrine. In that case, the averment was wanting.

Fourth. It is also insisted, that the scire facias is defective in not averring that the justices had power and authority to take the recognizance. It does aver that the persons before whom the recognizance was acknowledged, were justices of the peace for the county in which it was taken. In our opinion, this allegation must be held sufficient. The statute confers power on justices of the peace, to take recognizances in all cases of bailable offences committed in their county. Their authority, in this respect, is general, as much so as that of the Circuit Courts. And to this extent, they act as courts of general jurisdiction. The rule, therefore, that presumptions are not to be indulged in favor of the proceedings of courts of limited jurisdiction, is not applicable. Where it appears that these officers have taken the recognizance of a party charged with the commission of a bailable offence in their county, the presumption properly arises that they acted within the line of their duty and authority; in other words, that the charge was regularly preferred and examined, and the proper-decision pronounced, before the recognizance was entered into. The case of the Commonwealth v. Kimberlain, 6 Monroe, 43, is in point. There, the scire facias recited that Kimberlain “ appeared before Thomas M. Buckley and Eeuben Samuel, two of the Commonwealth’s justices of the peace for said county of Henry,” and acknowledged, &c. In answer to the objection that it did not sufficiently appear that the recognizance was taken by persons having competent authority, the court said: “ They are expressly stated to be justices; we are bound to notice the authority and jurisdiction conferred by law on the justices of the county; that they acted within the pale of their authority in taking a recognizance, is a presumption in law which will stand until the contrary is proved.” The same principle is recognized in the Commonwealth v. Miller, 4 B. Monroe, 418, and Shattuck v. The People, supra.

Fifth. It is contended, that it was erroneous to enter judgment against two of the cognizors, before the other was brought into court; and the case of Alley v. The People, 1 Gilman, 109, is referred to in support of the position. It is enough to observe, that Alley v. The People, was expressly overruled by the cases of Sans v. The People, 3 Gilman, 327; Crisman v. The People, Ibid. 351, and Pasfield v. The People, Ibid. 406, in all of which the principle is settled, that on a scire facias upon a joint and several recognizance, where service is had on one or more of the cognizors, and a return of nihil as to the rest, execution may be awarded against those served with process. The recognizance in the present case is in terms joint and several.

Sixth. During the term at which the judgment was entered, the court directed the clerk to indorse the filing of the recognizance nunc pro time. He failed to comply with the order, and the court, at the succeeding term, directed him then to make the proper indorsement on the recognizance, which was done. These orders are now complained of, but without any good reason. They but required the clerk to do what he ought already to have done. The judgment is affirmed.


text:
    Rachael Rigg et al., Plaintiffs in Error, v. Harry Wilton et al., Defendants in Error.
    ERROR TO ST. CLAIR,
    Where a statute is copied from one in another State, which has there received a construction which is consistent with the spirit and policy of our laws, such construction may with propriety be adopted by our courts.
    On the trial of an issue out of Chancery arising under Revised Statutes, chap. 109, sec. 6, the burden of proof is on the party affirming the execution and validity of the will, and he has the right to open and conclude the argument of the cause.
    Under such an issue, the party holding the affirmative, is bound to prove that the contested paper is the last will and testament of the testator.
    notwithstanding the probate, the issue is to be submitted to the jury as a new and original question, to be determined exclusively upon the evidence introduced before them. The trial is do novo, and without regard to the fact, that the instrument has been admitted to probate.
    The certificate of the oaths of the attesting witnesses at the time of the probate, may be offered in evidence by either party; but it is to receive such weight only, as the jury may think it deserves, in connection with the other proof in the case.
    The indispensable requisites of a will are that it must be signed by the testator, or by some one in Ms presence and by Ms direction, and be attested in his presence by two or more witnesses.
    On the question of the sanity of the testator, no particular quantum of evidence is necessary in order to sustain the validity of the will, upon the trial of an issue out of Chancery, under the statute; but the jury should determine the facts upon the weight of evidence, as in other cases. It is not essential that the subscribing witnesses should be called, or that when called they should concur in their testimony; other witnesses may be examined, even to contradict the subscribing witnesses.
    The statement of this case is contained in the opinion of the Court. This cause was heard before Koerner, Justice, and a jury, at April Term, 1848, of St. Clair Circuit Court. The jury found for the defendants, declaring that the will was the will of Clement Rigg. The errors assigned were the refusal of the Circuit Court to give the instructions asked for by the plaintiffs in error, and the refusal of a new trial.
    W. H. Underwood, for plaintiffs in error.
    In trials before a Probate Court, and in appeals therefrom, two subscribing witnesses must concur in their opinion of the sound mind and memory of the testator. Walker v. Walker, 2 Scam. 294. Or if probate is disallowed, on appeal, other evidence of sanity may be introduced. Revised Laws, 596. Lewis v. Morris, 1 Dallas, 308.
    On such appeal, the executor has the affirmative. Brooks v. Barrett, 7 Pick. 98. And when defendant proves insanity of testator before making will, the presumption is, that such state of mind continued to the time of making the will, unless the contrary is established. 2 Greenleaf’s Ev. § 689.
    On a feigned issue, two witnesses must each testify to all the facts necessary to establish the will. 2 Daniel’s Ch. Prac. 1019, 1021. Burwell v. Corbin, 1 Rand. R. 131, 141. Hock v. Hock, 6 Serg. & Rawle, 47.
    G. Koerner, for defendants in error.
    2 Starkie on Ev. 1266, note (h), 126, note (m).
   Treat, C. J.

This was a feigned issue out of Chancery to determine the ■ question, whether a certain paper was the last will and testament of Clement Rigg. The plaintiffs alleged that it was not his last will and testament; the defendants affirmed that it was. On the trial, the defendants were allowed to open and conclude the case; and both of the subscribing witnesses to the will were introduced, and testimony was offered tending to show that Rigg was of unsound mind and memory at the time of the execution thereof. The plaintiffs asked the court to instruct the jury: First, “ That proof by one subscribing witness, that the testator executed said will, and that said witness believes the testator to be of sound mind and memory at the time, is not sufficient to establish said will.” Second, “ That the sanity of the testator at the time of the execution of said paper writing, is an affirmative fact, to be established by those affirming the validity, of said will, and who hold the opening and conclusion of the case before the jury.” Third, “ That unless the jury are satisfied from the evidence, that the sound mind and memory of the said Clement Rigg, at the time of the execution of the said paper writing, have been established, either by the concurring testimony of the two subscribing witnesses, to their belief of his sound mind and memory at the time, or by other circumstances satisfying them of his sound mind and memory at that time, they are bound to find said paper writing not to be the will of said Rigg.” The instructions were refused, and the plaintiffs excepted. The jury found the issue in favor of the defendants, and they had judgment.

This proceeding was had under the 6th section of the 109th chap, of the Revised Statutes, which is in these words: “ That if any person interested, shall, within five years after the probate of any such will, testament, or codicil in the Court of Probate, as aforesaid, appear, and, by his or her bill in chancery, contest the validity of the same, an issue at law shall be made up, whether the writing produced be the will of the testator or testatrix, or not; which shall be tried by a jury in the Circuit Court of the county wherein such will, testament, or codicil shall have been proved and recorded, as aforesaid, according to the practice in courts of chancery in similar cases; but if no such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the parties concerned, saving to infants, femes covert, persons absent from the State, or non compos mentis, the like period after the removal of their respective disabilities. And in all such trials by jury, as aforesaid, the certificate of the oaths of the witnesses at the time of the first probate, shall be admitted as evidence, and to have such weight as the jury shall think it may deserve.”

This provision is in substance a transcript of the 11th and 15th sections of a statute of Kentucky, passed on the 24th of February, 1797, except that the latter statute expressly authorizes the court to grant new trials as in other cases, and a party may appear and contest a will within seven years after it is admitted to probate. But these differences are unimportant as respects this case. It may, therefore, be proper to ascertain what interpretation has been given to the Kentucky statute, by the courts ' of that State. And if it has there received a definite construction, and one that is consistent with the spirit and policy of our laws, it may with propriety be applied to the statute under consideration. It was decided in Haydon v. Haydon, 6 J. J. Marshall, 48, and Rogers v. Thomas, 1 B. Mon. 390, that on the trial of an issue under the statute, the burden of proof is on the party affirming the execution and validity of the will, and consequently that he has the right to open and conclude the case. In the latter case, the court held that such party is bound to prove affirmatively that the contested paper is the last will and testament of the testator. The issue is to be submitted to the jury as a new and original question, and determined exclusively upon the evidence introduced before them. The trial is de novo, and without regard to the fact that the instrument has been admitted to probate. The certificate of the oaths of the witnesses at the time of the probate, may be offered in evidence by either party; but it is to receive such weight only as the jury may think it deserves, in connection with the other proof in the case.

We are satisfied that this rule of construction is sound and reasonable, and well calculated to carry out the real intentions of the legislature. In practice it will best promote the ends of justice, and protect the right of parties. Wills are generally admitted to probate upon the ex parte statements of the attesting witnesses, when no opportunity is afforded the parties interested to appear and insist on their rights. The object of the statute in question is to give them the benefit of a full and thorough investigation of all the circumstances attending the execution of the will. And they are not to be embarrassed or prejudiced, by the previous proceedings before the probate court. The party who relies on the will is called upon to prove anew its execution and validity. And what he is required to prove to sustain the instrument, the other party is permitted to disprove in order to defeat it. There are some indispensable requisites to the due execution of a will. It must be signed by the testator, or by some one in his presence and by his direction; and attested in his presence, by two or more witnesses. A paper that has not thus been subscribed and witnessed, has no force or effect as a will under our statute. But as to all other questions affecting its validity, such, for example, as the sanity or capacity of the testator, no particular quantum of evidence is necessary on the trial of an issue under the statute. The jury are to hear the proofs submitted by the parties, and decide the issue as they would any other question of fact, according to the weight of the evidence. Nor is it essential that the proof should be made by particular witnesses. The subscribing witnesses need not concur in testifying to the sound mind and memory of the testator; and the will may be even established against their testimony. The party sustaining the will is not bound to call them, although a failure to do so, unexplained, might be regarded as a suspicious circumstance. It is enough, that the jury are convinced, from any legitimate testimony, of the sanity and capacity of the testator. It would indeed be a harsh rule to hold, that after a lapse of many years, a will could only be established by the concurring testimony of two of the subscribing witnesses. They may be in the interest of the assailants of the will, or beyond the reach of those seeking to sustain it. It may be true, that in the admission of a will to probate in the first instance, two of the attesting witnesses must declare the circumstances under which it was executed, and their belief that the testator was of sound mind and memory. But the reasons for such a requisition are to be found in the fact, that the will may be presented by the executor, and admitted to record, upon the ex parte testimony of the witnesses, without notice to the parties interested, and without an opportunity on their part to appear and resist the application. But these reasons do not exist in the case of the trial of an issue out of chancery. In such case, the parties are brought before the court for the express purpose of having all questions respecting the validity of the will forever put at rest. It was clearly the design of the legislature that an issue under the statute, should be determined like every other issue out of chancery, upon the weight and preponderance of the testimony adduced by the parties. This may be gathered from the expression in the statute, that the issue shall be tried by a jury, according to the practice of courts of chancery in similar cases.” And it is further evidenced, by the provisions of an act of the 25th of February, 1845, which declares, that when probate of a will shall be refused, and an appeal shall be prosecuted, the party seeking probate may support the will, by any evidence that would be competent on the trial of an issue out of chancery, for the purpose of contesting the validity thereof.

In our view of this case, the second instruction was correct, and the court erred in refusing it. The judgment must, therefore, be reversed, and the cause remanded, for another trial of the issue.

Judgment reversed.


text:
    James Marshall, Appellant, v. John Cunningham et al., Appellees.
    APPEAL FROM MARION.
    In a trial of right of property, the only question for decision is, does the property belong to the claimant. He is bound to show that the property belongs to him, and is therefore not subject to sale on execution.
    An execution becomes a lien upon the personal property of the defendant from the time it is delivered to the constable, and any subsequent sale cannot affect the rights of the plaintiff.
    This cause was tried before Marshall, Judge, and a jury, at May term, 1851, of the Marion Circuit Court. The jury found “ that the property in dispute is the property of the claimants.”
    James Marshall, the plaintiff in the execution by virtue of which the property claimed was levied upon, took this appeal. The facts of the case are set out in the opinion of the court.
    J. N. Haynie, for appellant.
    W. B. Scates, for appellees.
   Treat, C. J.

Marshall recovered a judgment against Hamilton, before a justice of the peace; and an execution issued thereon was levied on a mare and colt, which were claimed by Cunningham and Marshall. On the trial of the right of property in the Circuit Court, where the case was pending by appeal, the constable testified that the plaintiff sued out a warrant against Hamilton and placed it in his hands; he arrested Hamilton and brought him into town; Hamilton rode the mare, the colt following, and both were then his property; witness saw the mare tied to a stake, and Hamilton and Cunningham conversing together near the place; Hamilton confessed the judgment, and the execution was immediately issued, and delivered to the witness ; he went with the same to Hamilton, but could find no property; three or four days afterwards, he levied on the mare and colt in the possession of Cunningham, and had not seen them in his possession before. This was all of the evidence. The jury found that the property belonged to the claimants. The court refused a new trial, and the claimants had judgment.

In the trial of the right of property under our statute, the only question is, whether the property levied on belongs to the claimant. The verdict must be against him unless it affirmatively appears that he is the owner. He is bound to show that the property belongs to him, and is therefore not subject to sale on the execution. In the present case the execution became a lien on the personal property of Hamilton from the time it was delivered to the constable. Rev. Sts. ch. 59, § 78. Any subsequent sale or transfer to the claimants could not affect the rights of Marshall. The title to the mare and colt was in Hamilton just before the execution was placed in the hands of the officer. The proof failed to show that the claimants had previously acquired any interest in them. The fact that they were found in the possession of Cunningham several days afterwards, coupled with the circumstance of the conversation between him and Hamilton, did not authorize the inference that the property had been sold to the claimants, or the possession even transferred to them, before the lien attached. The claimants should have gone further, and proved that they purchased the property before the constable received the execution; or that they obtained the possession before that time, from which, perhaps, the jury might have inferred a purchase. The court should have granted a new trial.

The judgment is reversed, and the cause remanded.

Judgment reversed.


author: Trumbull, J.

text:
    Thomas W. McDonald, Plaintiff in Error, v. Carter T. Wilkie et al., Defendants in Error.
    ERROR TO JEEEERSOK
    A demurrer to a rejoinder opens the whole record, and will be carried back to the first substantial defect in the pleadings.
    A constable is protected in the execution of process issued by a justice of the peace, which shows upon its face that the justice had jurisdiction of the subject-matter, ahd nothing appears to apprise him that the justice had not jurisdiction of the person.
    If a constable have notice of an excess or want of jurisdiction in a justice to issue the process, he would render himself liable by acting under it.
    A judgment which is joint in favor of several defendants, and erroneous as to one, will be reversed as to all.
    Except in cases of judgments in actions of trespass or trover, a justice of the peace cannot issue an execution against the body of a defendant before an execution against the property has been issued and returned unsatisfied.
    McDonald brought an action of trespass for an assault, battery, and false imprisonment against the defendants in error.
    To which they severally pleaded the general issue; and also specially :
    That on the 18th April, 1850, defendant Wilkie recovered a judgment for $99.99 and costs against said plaintiff, before said Lyonberger, a justice duly authorized and having jurisdiction,
    &c. in an action of debt; that Wilkie made oath before said justice, that he verily believed plaintiff to be able to pay said judgment, and that he withholds his money and secretes his property from the officer, so that the debt cannot be levied,— said justice having power to administer such oath, — and demanded an execution against the body of said plaintiff; which are the supposed trespasses according to Wilkie’s plea.
    Lyonberger’s plea also averred, that he. thereupon issued a capias against the body of said plaintiff, and delivered it to said Lowry as a constable.
    Lowry’s plea contains the additional averment, that said writ commanded him to make $99.99 of the goods and chattels of said plaintiff, and on default thereof that he arrest and commit said plaintiff to the jail of said county, &c.; and that plaintiff, failing to surrender property, he gently laid his hands upon plaintiff and imprisoned him, as he lawfully might.

      Separate demurrers to these pleas were overruled.
    Thereupon the plaintiff replied severally and specially, that before the rendition of said judgment on the 8th April, 1850,
    Wilkie made oath before said Lyonberger, and on 9th April aforesaid caused an attachment in said suit to be issued by said Lyonberger, he having authority, &c., against as much of the personal property of said plaintiff as would be of sufficient value to satisfy said Wilkie in the sum of $99.99; and such estate so attached, to secure, &c.
    That said writ was put into the hands of Lowry, a constable, and on 10th April he took a roan mare and brown horse, each worth $75, bridle, saddle, and sheepskin, worth $25, and on 15th April took a trunk worth $25. All these were the property of plaintiff and of the value of $200, and enough to pay said judgment, and all which Lowry carried away, and which remained in his hands undisposed of in any way at the time of the making the oath by said Wilkie, the issuing of the capias by said Lyonberger, and of the arrest and imprisonment by said Lowry. And that at and before these times no execution had been issued against said plaintiff’s goods, or order of sale of said property so levied on.
    Demurrers to these replications were overruled.
    Defendants severally rejoined, that at the time John Lowry had not taken, and then had in his possession, under said attachment, goods, &c. of plaintiff sufficient to pay said debt.
    The plaintiff demurred to each rejoinder, and, as the bill of exceptions shows, at the same time moved for default for so much as is unanswered by pleas and the rejoinders, which the court refused, and also overruled the demurrers, and rendered judgment thereupon for costs against the plaintiff, Denning,
    Judge, presiding, at May term, 1851, of Jefferson Circuit Court.
    W. B. Scates, for plaintiff in error.
    If a plea do not fully answer all that it purports to answer in the introductory part, it is bad. 1 Chit. Pl. 523, 524, 625.
    And it is proper, upon filing a demurrer or replication to such a pleading, to ask default or judgment for the unanswered part of the declaration or other pleading. 1 Chit. Pl. 523, 625.

      A party is not entitled to final process of capias until he make oath that the debtor refuses to surrender his property. Rev. St. 1845, p. 282, § 1.
    Executions are not to issue on judgments of justices of the peace under twenty days, except plaintiff make oath that he believes the debt will be lost, when it may issue immediately and be levied, but no sale can be made for twenty days. Id. p. 322, § 53.

      Capias in execution, in the first instance, is not allowed, even for fine and costs in cases of assault, assault and battery, and affrays, but a fieri facias. Id. p. 329, § 97.
    D. Baugh, for the defendants in error,
    Cited Rev. St. p. 328, § 91; 1 Chit. Pl. 182, 183, 611, 614, 618; 20 Johns. Rep. 165, 404; 2 Conn. 700; 11 Mass. 500; 2 Litt. 234; 6 Greenl. 421; 9 Conn. 141; 6 Wend. 382.
   Trumbull, J.

McDonald sued Wilkie, Lyonberger, and Lowry in an action of trespass vi et armis. The defendants pleaded separately, and the case was decided on demurrer to rejoinders, which the court overruled, and gave judgment against the plaintiff for costs.

Since the judgment in the Circuit Court, Lyonberger has deceased, whereby the suit as to him has abated, and it will be unnecessary to notice the pleas which he filed.

The demurrer to the rejoinders opens the whole record, and will be carried back to the first substantial defect in the pleadings.

The special plea filed by Wilkie states, in substance, that before the assaulting, imprisoning, &c. of the plaintiff, as alleged in his declaration, he had obtained a judgment against him for ninety-nine dollars and ninety-nine cents, before Lyonberger, a duly qualified justice of the peace having jurisdiction to enter such judgment; that he made oath before said justice that he verily believed McDonald to be able to pay the judgment, but that he withheld his money and secreted his property from the officer, so that the debt could not be levied; and thereupon he demanded an execution against the body of McDonald, as he lawfully might for the causes aforesaid, which was the supposed trespass complained of. This plea is clearly bad. It does not even allege that a ca. sa. ever issued; and if it did, there is no averment that McDonald was arrested and imprisoned under it. The fact that Wilkie made oath before a justice of the peace and demanded an execution against the body of McDonald, was surely no justification for his assaulting him. To have made the plea good, it should have gone on to allege that the justice issued the capias ad satisfaciendum; that the writ was subsequently placed in the hands of an officer to execute, and that under and by virtue of it McDonald was arrested and imprisoned. The plea was no answer to the replication, and the demurrer to the rejoinder to replication should have been carried back and sustained to this plea.

The plea of Lowry justified the trespasses complained of under a writ of ca. sa. placed in his hands, as constable, to be executed, and we think presented, primd facie, a good defence to the action, so far as he was concerned. A constable is protected in the execution of process issued by a justice of the peace, which shows upon its face that the justice had jurisdiction of the subject-matter, and nothing appears to apprise him that he had not jurisdiction also of the person. If the officer have notice of an excess or want of jurisdiction in the justice to issue the process, he would doubtless render himself liable by acting under it. Barnes v. Barber, 1 Gilm. 401.

If it were admitted that the ca. sa. was issued without authority, there is nothing in the pleadings to show that Lowry had knowledge of that fact. The replication to his plea was wholly defective. It failed to show that the pleadings in the case of the attachment had any connection with the judgment upon which the ca. sa. issued. For aught that appears, there may have been two actions against the plaintiff for different demands, one by attachment, and the other in the ordinary mode. It is wholly immaterial whether Lowry’s rejoinder to this replication was good or not. It was certainly good enough for a bad replication, and, had a separate judgment been entered in his favor for costs, this court would have been compelled, as to him, to affirm the judgment. The judgment, however, being joint in favor of all the’defendants, and erroneous as to one, will have to be reversed as to all. A judgment, jointly entered in favor of several defendants, whether in an action upon contract or for tort, cannot be affirmed as to one and reversed as to another. Such a' judgment is an entirety, and must stand or fall together. Harmon v. Brotherson, 1 Denio, 537; Cruikshank v. Gardner, 2 Hill, 333 ; Sheldon v. Quinlen, 5 Hill, 441; Gaylord v. Payne, 4 Conn. 190; Bac. Ab. Tit. Error, M.

As the case has to be remanded, it will be. proper to express an opinion upon the right of the justice of the peace to issue an execution against the body, upon the state of facts set forth in the plea of Wilkie; which was the main point argued by counsel, and which will doubtless arise again upon an amendment of the pleadings in the court below.

The decision of this question involves a construction of the ninety-first section of the act concerning justices of-the peace and constables, which is as follows: 11 In cases of judgment for debt, whenever the plaintiff, or his authorized agent, shall make oath, before the justice in whose office such judgment may be, that he or she verily believes the defendant or defendants to be able to pay such judgment, and withholds the money, or secretes his, her, or their property from the officer, so that the debt cannot be levied, it shall be lawful for the plaintiff to demand, and for the justice to issue, execution against the body of such defendant or defendants.”

Under this provision of the statute, it is insisted, by the defendant’s counsel, that a plaintiff, upon obtaining judgment before a justice of the peace, has the right, immediately upon making the requisite affidavit, to sue out execution against the body of the defendant, without having first had an execution issued against his goods and chattels, and returned unsatisfied. We do not so understand the law. The ninety-first section, above quoted, is but a reiteration, of the first section of the act concerning insolvent debtors, (Rev. Stat. ch. 52,) which authorizes a ca. sa. against the body of a defendant in execution in no case, except he shall refuse to surrender his estate, goods or chattels, for the satisfaction of an execution which may have been issued against his property. These provisions of the statute being in pari materid, are to be construed together, and, when considered in that connection, there can be no question, except in cases of judgments in actions of trespass or trover before justices of the peace, specially provided for by sec. 90, ch. 59, that an execution must first issue against the property of the defendant, before one can lawfully issue against his body. How is it possible for a defendant to withhold or secrete Ms property from an officer, as specified in the ninety-first section, when there has been no officer clothed with authority to take or seize his property ?

Taken by itself, a fair construction of this provision of the statute would not justify an execution against the body in the first instance; but, when considered in connection with the provisions of the insolvent debtor’s act, it is clear that a justice of the peace transcends his authority, who issues execution upon a judgment founded upon contract against the body of a defendant, before an execution has been issued and returned unsatisfied against his property.

The judgment of the Circuit Court will be reversed and the cause remanded, with directions to that court to enter a separate judgment for the defendant, Lowry, on the demurrer of plaintiff to his rejoinder, and with leave to Wilkie to plead de novo.

Judgment reversed.


text:
    Trustees of Schools, Town one, South, Range five West, Plaintiffs in Error, v. Sirledon Tatman, Defendant in Error.
    ERROR TO CLINTON.
    A ferry franchise is not secured to the inhabitants of a township, by the ordinance of 1818, which provides that section sixteen in each township shall be granted for the use of schools.
    A ferry franchise is not an incident to the ownership of land.
    A party cannot exercise a ferry franchise on his own land without the consent of the State.

      A franchise to a public corporation, is subject to the superintendence and control of the State, and may be modified or destroyed, as the exigencies of the public may demand, so that their property is not diverted from its uses and objects.
    Trustees of schools are public corporations, to be controlled and regulated by the legislature.
    The sale of school lands to a party who had a ferry franchise, would not be affected by a forfeiture of the franchise ; the sale and franchise being independent, his title to the lots would not be affected by the loss of the franchise.
    The State alone could insist upon a waiver or forfeiture of the ferry franchise.
    The school trustees filed their bill in the Clinton Circuit Court, setting forth, among other things, that section sixteen, in each township, is granted by law to the State for the use of the inhabitants of the several townships, for the benefit of schools. That section sixteen, through which the Kaskaskia River flows, is the major part thereof in Clinton county, and that on the same a ferry was regularly established, by an act of the legislature of 28th February, 1833. By the act regulating ferries, (Rev. Code of 1833,) whenever a ferry is upon school land, it shall be for the use of the inhabitants. By the act of 23d February, 1843, (Laws of 1843, p. 276,) the school commissioner of Clinton county was required to sell lots five and six in section sixteen, in town one, south, range five west, and the purchaser to have and enjoy the ferry privilege forever. Provided he would make, within three years, a good road above high-water mark, leading to the ferry across the bottom lands of said river, and that Tat-man became the purchaser of the lots for the sum of four hundred and ninety-two dollars. The bill states, that before the expiration of the three years, Tatman, by fraud, obtained of the legislature the passage of a law (Acts of 1845) extending the time for completing the road, but that it was never completed; and that the legislature, at the session of 1851, (see Session Laws, p. 231,) repealed this proviso requiring the road to be built over the bottom land adjacent to the river. That, encumbered with the proviso requiring the making of the road, the land, worth $2,500, sold for but $492, and the inhabitants consequently lost the difference. The bill prays that the sale to Tatman may be declared void, on the ground that the legislature had not the power thus to appropriate the money of the schools, or the fund for their support, to the maldng of the road; more especially as the road over the bottom lands, which was a part of the contract, has never been made. The bill alleges that the proceeds of the ferry amount to $500 a year, and prays for an account from Tatman.
    A demurrer to this bill was sustained in the Circuit Court. To correct this decision of the Circuit Court, the school trustees sued out this writ of error.
    Underwood, Judge, presiding in the Clinton Circuit Court, at October Term, 1851, rendered the judgment sustaining the demurrer.
    S. Breese and D. White, for appellants.
    G. Koerner, for appellee.
   Treat, C. J.

It is provided, by the ordinance of the 18th of April, 1818, that section sixteen in every township shall be granted to the State, for the use of the inhabitants of such township, for the use of schools. The act of the 28th of February, 1833, recognized a ferry, as regularly established across the Kaskaskia River, on section sixteen, township one, south, range five west, and conferred authority on the County Commissioners’ Court to renew the ferry license to the trustees of schools, or the lessee of the section. In 1842, the school commissioner sold the whole of this section except lots five and six, which he withheld from sale for ferry purposes. The 2d section of an act of 23d of February, 1843, required the commissioner to sell the reserved lots, at public auction. The 3d section declared that the purchaser of the lots, might forever have and enjoy all the ferry privileges pertaining to the sixteenth section, provided he should, within three years, make the road leading through the bottom, to and from the ferry, above high-water mark. The lots were sold and conveyed to Sirledon Tatman, for the sum of $492. By an act of the 23d Feb. 1845, the time for the construction of the road was extended to the 1st of May, 1847; and the act of the 15th of February, 1851, repealed the 3d section of the act of February, 23d, 1843. In September, 1851, the trustees of schools filed a bill in chancery, against Tatman, setting forth the foregoing state of facts, and alleging that lots five and six and the ferry privileges were worth, and would have brought at the sale, $2,500, and praying that the sale might be set aside, and Tatman held to account for the rents and profits of the ferry. The court sustained a demurrer, and dismissed the bill.

It is insisted, that the act of 1843 appropriated the property of the township to the construction of the road; and, therefore, that the sale was invalid, and should be set aside. We hold that the legislature has not attempted to exercise any such power. The sale did not divert any portion of the property belonging to the township. The act directed a sale of the land, but did not interfere with the proceeds. It simply provided for a conversion of the land into money. The proceeds were to go into the treasury of the township. There is no pretence that the lots did not bring their full value. The only complaint is, that a ferry franchise was not sold with the lots, and the gross proceeds added to the funds of the township. The township had no rights in a ferry franchise, that were not subject to the entire control of the legislature. The ordinance secured the sixteenth section to the inhabitants of the township, for the use of schools. But they did not thereby acquire any right to a ferry franchise. Such a franchise is not an incident to the ownership of land. A party cannot exercise a ferry franchise on his own land, without the consent of the State. Franchises are creatures of the sovereign power, which it may grant or refuse at pleasure. Even if a franchise to keep a ferry on the sixteenth section had been granted to the trustees, it was competent for the legislature to revoke it. A grant of this character to a public corporation, may, at any time, be resumed by the State. It is not like the case of the grant of a franchise to an individual, or a private corporation. Public corporations are but parts of the machinery employed in carrying on the affairs of the State ; and they are subject to be changed, modified, or destroyed, as the exigencies of the public may demand. The State may exercise a general superintendence and control over them, and their rights and effects, so that their property is not divested from the uses and objects for which it was given or purchased. That the trustees of schools are corporations of this character, and subject to be regulated and controlled by the legislature, is fully established by the cases of Bradley v. Case, 3 Scam. 585, and Bush v. Shipman, 4 Scam. 186. If the legislature can direct the school lands to be converted into money, and permit the debtors to the school fund to discharge their obligations in bank-notes, or other securities, it may certainly take away from the trustees of a township a mere franchise to keep a ferry.

The sale of the lots, and the grant of a ferry franchise to the purchaser, were independent matters. The purchaser was permitted to have the franchise upon the performance of certain conditions. He was to construct a road, as an equivalent or compensation for the ferry privilege. The lots formed no part of the consideration for malting the road. The purchaser was at liberty to accept or refuse the franchise. If accepted, a failure to construct the road would not affect his title to the lots. It could work a forfeiture of the franchise only. And the State alone could insist upon or waive the forfeiture.

The decree is affirmed. Decree affirmed.


author: Trumbull, J. Elizabeth

text:
    Francis D. Fleece, by his Guardian, Plaintiff in Error, v. Elizabeth Russell et al., Defendants in Error.
    EBBOB TO MASSAC.
    A bill in Chancery is not necessarily put out of court because a demurrer to it is sustained.
    A writ of error or appeal only lies to a decree making a final disposition of a case.
    Under our statute, no process is necessary to summon the parties to an original bill, to answer to a cross-bill; the latter is an adjunct of the former, all constituting but one case.
    An order dismissing a cross-bill is interlocutory, and such an order is not subject to review in this court until the whole case is disposed of.
    This demurrer was heard before Denning, Judge, at May term, 1850, of the Massac Circuit Court. The facts of the case are stated in the opinion of the court.

      R. S. Nelson and R. F. Wingate, for plaintiff in error.
    T. G. C. Davis and W. J. Allen, for defendants in error. ■
   Trumbull, J. Elizabeth

Russell, who has since intermarried with William Brown, filed her bill in Chancery against Edward H. Fleece, the father, and Francis D. Fleece, his minor son, to subject a tract of land, the legal title to which was in the son, to the payment of certain judgments which she held against the father.

Answers were filed to this bill; and subsequently a cross-bill was filed by the minor, alleging that the said Elizabeth was then, and had been for several years, in the possession of the land in controversy, receiving the rents and profits, which amounted to more than all her claims against his father, and praying that she might be made to account for the rents and profits received; that out of the same she might be allowed whatever should be found due upon the judgments, and be required to pay over the balance, and deliver the possession of the premises to the said Francis.

To this cross-bill the Circuit Court sustained a demurrer, and that decision is now assigned for error.

It might be questioned whether a writ of error would lie to a decision of the Circuit Court simply sustaining a demurrer to a bill in Chancery, without any order dismissing the bill, or decree for costs.

The sustaining a demurrer to a bill does not necessarily put the case out of court. The complainant may still obtain leave to amend, and it is only to a decree making a final disposition of a case that an appeal or writ of error lies. But there is another objection which is fatal to the prosecution of the writ of error in this case.

The Rev. St. ch. 21, §§ 24 to 30, inclusive, provide for filing a cross-bill, and the mode of proceeding upon it. Under these provisions of the statute, which have been passed since the decision in the case of Ballance v. Underhill, 3 Scam. 453, no process is necessary to bring in the parties to the original bill; but the cross-bill is to be regarded as an adjunct or part of the original suit, and the whole together as constituting but one case.

The proceedings upon the original bill in this case are still pending and undisposed of in the Circuit Court. For aught that appears, the complainant in the cross-bill may yet obtain all the relief to which he is entitled, upon a final disposition of the case in the Circuit Court; for we see no reason why he may not set up the rents and profits by way of set-off in his answer, as well as by way of a cross-bill. But whether this be so or not, the case cannot be brought to this court for revision till it is finally disposed of. A party cannot bring his case here by piecemeal, nor does an appeal or writ of error lie from an interlocutory decree, which is clearly the character of the order sustaining the demurrer to the cross-bill. Pentecost v. Magahee, 4 Scam. 326; Hayes v. Caldwell, 5 Gilm. 33.

If, in the final disposition of the case in the Circuit Court, the complainant in the cross-bill should be dissatisfied with the decision, it will then be his right to bring the case to this court, and to assign for error the decision of which he now complains.

Writ of error dismissed.


author: CatOn, J.

text:
    Jefferson County, Plaintiff in Error, v. James E. Ferguson et al. heirs, &c., Defendants in Error.
    ERROR TO JEFFERSON.
    The Circuit Court is invested with the discretion of allowing amendments to a hill in chancery at any stage of the cause.
    The law abhors shifts and connivances for the purpose of changing possession of land, and will enforce the original right, so as to prevent the supersedence of the title designed to be defeated.
    The court will presume, after a long lapse of time, under peculiar circumstances, that a certificate of sale for land was given, and that the consideration for such certificate has been paid.
    The defendants as the heirs at law of Nelson Ferguson, deceased, filed in the Jefferson Circuit Court, at the August term, A. D. 1845, thereof, against the said plaintiff, their bill in Chancery, for a conveyance to lot No. 28, in block No. 17, in the town of Mount Vernon, Jefferson county, charging, in substance, that in the year 1819, the said town of Mount Vernon was laid out into blocks and lots, by order of the then acting county commissioners, and by said commissioners ordered to be sold on a credit. That said Nelson, deceased, at the sale of said lots, purchased said lot for about the sum of one hundred and fifty-six dollars, and that said Nelson, deceased, executed to said county, (or to whomsover the notes were made payable,) his promissory note for the purchase-money, with James Johnson as his security, and that said lot has since been paid for, and that it has been in the possession of said Nelson, deceased, and his legal representatives from thence hitherto, and that said Nelson and his legal representatives have paid the taxes on the same since the purchase thereof. That the defendants, by their attorney, had made diligent search for the record authorizing said sale of lots in said town of Mount Vernon at the original sale thereof, but could find nothing of the kind. That no deed, to the belief of the defendants, had ever been executed to the said Nelson in his lifetime, or to his legal representatives, from the fact that there appears to be no record of any such deed. Praying that the said plaintiff should be summoned to show cause, if any they might or could, why they should not appoint some suitable person to execute a good and sufficient deed to the said Nelson nunc pro tunc, or that the court would appoint a commissioner for that purpose.
    To which , bill the said plaintiff demurred, and at the said August term of said court, 1845, the demurrer was sustained by the court. Whereupon the defendants asked and obtained leave to amend this said bill.
    To the amended bill the plaintiff filed its answer, denying that the said Nelson, deceased, or any person on his behalf, ever paid for the lot in said defendants’ bill described, or that he or his heirs had possession thereof for the space of twenty years, or paid taxes on the same, as in said bill alleged, and further denied all the material allegations in the said defendants’ bill alleged, praying to be dismissed with costs, &c.
    S. S. Marshall and R. F. Wingate, for plaintiff in error.

      W. B. Soates and D. Baugh, for defendants in error.
   CatOn, J.

Four amendments were allowed to this bill, two of which were permitted after the case had been argued, and while it was under advisement in the court below. The permitting of these amendments is now assigned for error. We do not think that the decree should be reversed for this cause alone. As a general rule, these amendments are in the discretion of the Circuit Court; and when admitted for furtherance of justice, we ought not to listen to the objection, unless the party can show that his substantial rights have been prejudiced by the amendments which' have been allowed. A case might exist, and we are not prepared to say that this is not that case, where it would be the exercise of a judicious discretion to permit amendments even to the extent allowed here ; but certainly, except to make new parties, amendments should not be allowed after a cause has been submitted to the court, unless under extraordinary circumstances of necessity. That the court has authority to allow such amendments upon proper conditions, there can be no doubt; for, without looking into the English practice on the subject, we find the authority expressly given in the thirty-fourth section of our Chancery act.

The proofs in the case show, beyond a controversy, that Nelson Ferguson the ancestor of the complainants, purchased the lot in question in 1819, at a public sale of lots by the county, upon a credit, and that the terms of sale were, that he should give a note for the purchase-money payable in six, twelve, eighteen, and twenty-four months, upon the execution of which he should receive a certificate of purchase, and that upon the payment of the notes he should receive a deed. We think the proofs show, with equal clearness, that the lot has ever since been claimed under that purchase by Ferguson, or those claiming under him. That the lot was actually taken possession of under that purchase, and a house built upon it in 1829, which was occupied by tenants under that title until the commencement of this suit. It is true that in 1848, one McArtee attempted to hold the lot in subordination to the title of the defendants; but the facts of the case show that he could not divest himself of the character of a tenant under the complainants’ title. The tenants who had leased the lot held over after the expiration of the lease, and while thus holding over, sold then right of possession to one Cox, who, under that purchase, occupied the premises till his death, when he left a stock of groceries in the building, of which McArtee took possession, claiming as legatee of Cox under a nuncupative will. While thus holding possession, he renounced the complainant’s title and took a lease from the county, under which he claimed to hold. This was in violation of his landlord’s rights. The tenancy clearly continued under all these various transfers, even after the expiration of the lease ; and when McArtee took possession of the store and goods claiming under the deceased tenant, he was obliged to assume the same character of tenant which his testator had occupied, and having thus entered, he could not change the tenancy or character of the occupancy. Had he subsequently surrendered the possession to the county, the latter would have been obliged to assume the character of tenant, under the complainants’ title. The law abhors such shifts and connivance for the purpose of changing the possession of land from one claimant to another, and will ever hold such possession to be in subordination to the title designed to be superseded; and no length of possession thus acquired, can operate to the prejudice of the title designed to be defeated thereby.

Since 1839, then, the premises have been actually occupied under the complainants’ title. The proof also shows, that for most, if not all, of the time since the sale of 1819, the county has treated the lot as private and individual property by assessing it for taxes and collecting the same. These are facts not seriously controverted. The controversy is made upon the questions, whether Nicholas Ferguson complied with the terms of sale by the execution and delivery of the note required; and whether a certificate of purchase was made to him.

The evidence upon these points, if not conclusive, is quite satisfactory. Upon the first point, several witnesses speak. Mr. Johnson.says he signed the note for the purchase-money, on the evening of the day of sale, as security for Ferguson; that the note was executed in the presence of the court, but that he does not recollect of having seen it actually delivered. J. Pace was the clerk of the court at the time, and says it is his impression that Nelson delivered the note at the time, but has no distinct recollection of it; that the notes given at the sale were put into the hands of the county treasurer. He cannot recollect of the delivery of the notes given for the purchase of lots at that sale in any particular case. If this evidence, when taken in connection with the notorious claim of the lot under the sale, and the long and open possession of, and improvements made upon, the lot by those claiming under Ferguson, together with the levy and collection of taxes for the lot by the county, would still leave us in doubt as to the execution and delivery of the note for the purchase-money by Ferguson, that doubt must be entirely dispelled by the testimony of Governor Casey, who states that he was one of the county commissioners at the time of the sale of the lots. He says he recollects distinctly that Ferguson purchased the lot. In answer to the fourth interrogatory put to him, which inquires whether Ferguson executed and delivered his note for the purchase-money, with approved security, he says, “ he did so execute and deliver his notes.” To controvert this there is no evidence; but it is supported by the other testimony, and all the circumstances of the case. We take it to be clearly established, that Ferguson did every thing on his part to comply with the terms of the sale, and it may not be very important whether a certificate of purchase was issued to him or not; yet we are of opinion that there is sufficient testimony in the case to show that such certificate was issued at the time. In answer to the fifth interrogatory, Governor Casey says, “ My best recollection is, that we did execute such a certificate of purchase, and that it was left with the clerk for delivery to said Ferguson.” The clerk does not recollect this transaction. The delivery of the certificate to the clerk for Ferguson ought to-be held a good delivery, although the purchaser never took it from the hands of the clerk. However, it is most probable that he took it into his own possession. Assuming that a certificate-of purchase was issued to Ferguson, its absence is sufficiently accounted for, although we do not think it necessary to go into, a detail of the evidence showing its probable loss. If no certificate of purchase was actually delivered to Ferguson, then the-evidence shows such a case as would take the sale out of the statute of frauds, if we shall find that the purchase-money has been paid. This, therefore, will be the next question considered. No witness swears positively to the payment of the note given for the purchase-money, but the proof of that payment depends wholly upon circumstantial evidence. We have already seen, that thirty years ago a note for the purchase-money was executed and delivered to the county commissioners, with Joel Johnson as security. The amount of this note was about §150, payable in four equal semi-annual instalments. The testimony shows that the note must have been placed in the hands of the county treasurer, who was instructed to collect the notes as they fell due; that the county was, for. many years after the sale, very much embarrassed, and greatly in need of funds to pay her ordinary expenses and for the erection of public buildings; that Johnson, the security on the note, has ever since; lived in the county and near the county seat, and is well known to, the officers of the county; that he has during the whole time been perfectly responsible, and he says he has never been called upon to pay the note. The note is not now in the possession of the county, or at least it fails to produce it, nor does it in any way account for its absence. In view of all these circumstances there is but one inference, and that is, that Ferguson paid the note, and probably as it fell due. The bare non-production of the note by the county would be sufficient, unexplained, to raise the legal presumption, that the note had been collected- or put in circulation. It would be most unreasonable indeed to require of the complainants to produce stronger proof of payment than they have spread upon this record. According to the ordinary course of business transactions, Ferguson, when he paid the note, took no receipt, but merely took up his paper; and it is a very rare occurrence where we find a man who preserves his notes which he has paid; and consequently no positive proof of the payment could be expected, unless the treasurer, to whom the payment was probably made, should fortunately recollect it, after a lapse of near thirty years, and when there was nothing in the nature of the transaction to impress it upon, or keep it alive in, his memory. Even if Ferguson were alive and prosecuting this suit, we could require no stronger proof of payment than we now have. And yet how much less strict should we be with the complainants, when we remember that their father died twenty-five years ago, leaving them very young, and residents of a distant State; that they have been under the charge of several guardians, appointed from time to time by foreign tribunals, into and through whose hands a portion of their father’s papers passed; that their mother was twice married after their father’s death, and that she has now been dead for several years. All these circumstances serve to explain how it is that no papers in relation to this transaction can now be found, and afford a good reason for saying that the complainants should not be held to as strict proof of payment as would be required were the original party to the transaction living and acting. This, too, shows an abundant reason why this claim has laid so long dormant. The simple question is, has the money been paid, or is it still due the county’from the estate of-Ferguson, or Johnson the security. Suppose this were a suit prosecuted by the county for the recovery of the amount due upon the note, could it be pretended for a moment that the county could recover, in the face of all these circumstances tending to show that it has been paid, and without producing the note or accounting for its absence t Such a thought would not be entertained for a moment by any one.' There is also a satisfactory explanation given why nothing of this payment is found in the records of the county. All of the county officers who have been sworn testify that no record whatever of any of those sales was made by the County Commissioners’ Court, or in the treasurer’s office, of the payments of the notes given at the sales. If these records do not show other sales which were effected, and other payments which were made, it is not remarkable that they are silent on the subject of this transaction. That such record should properly have been kept, there can be no doubt; but the proof shows positively that they were not, and for the reason that it was not then, supposed to be necessary. We must'take things as they are,' and have regard to the mode in which business was then done. We cannot certainly, after this long lapse of time, be called upon to say, that because of the informal manner in which the county business was transacted and the records kept, no rights were acquired and no obligations incurred. We cannot say, that those who parted with their money in good faith, and of which the county has enjoyed the benefit, acquired no rights, of which the judicial tribunals will take notice and enforce.

We have no hesitation in finding, that at a public sale of property belonging to the county held in 1819, in pursuance of an order of the County Commissioners’ Court, the ancestor of the complainants purchased the premises in question; that he complied with the condition of such sale by giving his note for the purchase-money, with approved security, which was accepted by the proper county authorities, and which note was duly paid; that he, or those claiming under him, took possession of said property under the sale, made valuable improvements thereon, and have held and continued such possession until the commencement of this suit; and, the whole of the purchase-money having been paid, this entitles the complainants, who are the only heirs at law of the original purchaser, to a conveyance of the property, whether a certificate of purchase was ever delivered to Ferguson or not. In this we find that the Circuit Court decided correctly. The court, however, erred in awarding costs against the county commissioners personally. The county was the defendant in the suit; and if costs were to follow the decree, they should have been adjudged against the county. That portion of the decree which relates to costs must, therefore, be reversed, which imposes the duty upon this court of disposing of the question of costs, as we think the Circuit Court should have done in the exercise of a sound discretion. The county acts through its officers, and is not, like an individual, bound to remember ancient transactions, unless disclosed by its records. The present commissioners may well have been justified in resisting a claim of which they found no evidence on their records, and which should properly have appeared there. Indeed, they may not have been justified in making a conveyance, under the circumstances of this case, except in obedience to the decree of a competent tribunal. Nor can we say that the appeal was vexatiously prosecuted. Upon consideration of the whole case, we are of opinion that the parties respectively should pay the costs made by them in the Circuit Court; and that the costs of this court be equally divided between them. The decree to this extent will be modified here. In all else it must stand affirmed.

Decree affirmed.


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    John S. Wise, et al., Plaintiffs in Error, v. John Shepherd, Defendant in Error.
    ERROR TO LAWRENCE.
    Where there are two creditors of one debtor, the first having two funds to which he may resort for the payment of his debt, while the second creditor has but one, the first creditor shall resort to that fund which he alone can reach, and leave the other fund to the second creditor.
    This principle does not extend to a case where one of two creditors has a lien for his debt upon two funds belonging to two separate debtors, and the" other has a lien only upon a fund belonging to one of the debtors, so as to compel the first creditor to make his claim wholly out of that debtor which the other cannot reach, unless there should be some peculiar relations between the co-debtors, which would make it equitable that the debtor, having but one creditor, should pay the whole demand against the two debtors.
    Equity will not sanction a principle which, though just to creditors, is inequitable to debtors.
    The assignee of a judgment is subject to the same equities which, as to third parties, would be enforced against the judgment creditor. In equity, a judgment creditor is bound to make his debt from the principal, if he can find sufficient property to do so, before resorting to the property of the surety.
    A junior judgment creditor cannot strengthen his rights by purchasing a senior judgment, so as to cut off an intervening mortgage, executed by one of the senior judgment debtors, who became such debtor by reason of being a surely.; but. the assignee of the senior judgment shall first apply the money made from the estate of the principal of that debt in satisfaction of the senior judgment instead of the junior, so that the premises mortgaged by the surety, may be relieved from the incumbrance of the senior judgment.
    The decree in this case was rendered by Harlan, Judge, at September Term, 1851, of the Lawrence Circuit Court.
    Shepherd filed his bill to marshal assets, and have the proceeds of sales of certain lands entered in satisfaction of the judgment of Ross, against David Price, and a certain tract of land purchased of said Price by Shepherd, released from all lien of said judgment.

      The case presented by the bill is this :
    In October, 1840, Ross obtained two several judgments for $605.27 each, and costs. One against J. B. Shaw, the principal; the other against D. Price, as security for the same debt.
    Subsequent to the judgment, on the 14th October, 1840, said Price executed a mortgage to James Gibson of location number 1, township 4 north, range 10 west, containing 25 acres, which was duly acknowledged and recorded on the 29th December, 1840.
    At the April term, 1841, John, William J., and Samuel Wise recovered a judgment against said J. B. Shaw for the sum of $1,491,05.
    On the 6th of November, 1846, an execution in favor of Ross, and against Shaw, was levied upon three tracts of land, containing 339.14-100 acres, and his undivided half of five tracts, containing 352.33-100 acres, his half being 176.16-100; and in all, 515.30-100 acres.
    On the same day, execution in favor of the Wises against Shaw, was issued and levied on the same lands.
    At the April term, 1847, James Gibson recovered judgment against said Price, by foreclosure of the mortgage by bill in chancery.
    On the 9th September, 1847, execution on Ross’s judgment, against said Price, was issued and levied on the mortgaged premises.
    Said premises were sold under the foreclosure, on the 27th September, 1847, and bought by said Shepherd.
    And on the 30th of October, 1847, said premises were sold under the execution in favor of Ross, against Price, and bought by said Wises for $125.
    That the lands of Shaw, levied on by the executions of' Ross and of the Wises, were sold before the sale of Price’s land by Ross’s execution.
    That the proceeds of the said sale were applied to pay off the remainder of the judgment against Shaw, after deducting the amount of Price’s land, and the remainder of the proceeds were applied towards the satisfaction of the Wises’ judgment against Shaw.

      That the proceeds were more than sufficient to have discharged the debt of Ross against Shaw; and if they-had been so applied, as they should have been, it would have saved Price’s land, and perfected Shepherd’s title.
    Bill alleges that this should have been the application; but that the Wises bought the judgments of Ross against Price and Shaw, and made the applications of proceeds as above. Prays that application of proceeds be made, so as to save Price’s lands, and Shepherd’s title by purchase.
    Decree accordingly, upon demurrer to bill.
    Plaintiffs assign for error:

      First. The application of the proceeds of sale of lands of Shaw, in full satisfaction of Ross’s judgment.

      Second. Court vacated the sale of Price’s land, and ordered satisfaction to be entered on Ross’s judgment against him.

      Third. Court rendered decrees conformable to prayers of the bill, and for costs against plaintiffs.
    W. B. Scates and A. Kitchell, for plaintiffs in error.
    The general maxim in relation to marshalling assets, is In cequali jure, melior est conditio possedentis — where equity is equal, the law shall prevail — and he that hath only a title in equity, shall not prevail against law and equity. Francis’s Maxims, Max. 14; Fonbl. Eq. 515, 516, 517.
    It is a general rule, that when one party has a remedy against two funds, equity will not allow the exercise of his option to disappoint another just claimant who has only one fund to which he can resort. For various instances of the application of this rule, see Aldrich v. Cooper, 8 Ves. R. 382; Hawley v. Mancius, 7 Johns. Ch. R. 184; Ex parte Kendall, 17 Ves. R. 520; Lagittary v. Hyde, 1 Vern. R. 455; Dorr v. Shaw, 4 Johns. Ch. R. 17, 20; Evertson v. Booth, 19 Johns. R. 486; Brinkerhoff v. Marvin, 5 Johns. Ch. R. 328; Cheesbraugh v. Willard, 1 Johns. Ch. R. 412; Woolcocks v. Hart, 1 Paige, R. 185; Clifton v. Burt, 1 Peere Williams, 678, and note 1 to 679; Robinson et al. v. Tonge & Dunn, 3 Peere Williams, 397; Wright v. Simpson, 6 Ves. Jr. 737, note, third proposition ; Trunmer v. Bayne, 9 Ves. Jr. 209.

      A creditor has a right to protect himself by advancing a prior creditor’s debt, and talcing the benefit of his lien. Brinkerhoff v. Marvin, 5 J. C. 328; Fonbl. Eq. 515, 516, 517; Cheesebraugh v. Willard, 1 Johns. Ch. R. 442; Evertson v. Booth, 19 Johns. R. 486; Woolcocks v. Hart, 1 Paige, R. 185 ; and where he has two funds on two separate debtors, the creditor of one cannot compel him to resort to the one alone. Ex parte Kendall, 17 Ves. R. 520; Dorr v. Shaw, 4 Johns. Ch. R. 17, 20.
    Here a junior judgment incumbrancer, having a lien on one of two funds, in order to protect himself advanced the prior judgment creditor his debt, and sold the fund under it, on which his judgment was not a lien; and in order to have his own satisfied out of the sole fund reached by his own, a junior mortgagee and judgment creditor on that fund, asked the assets to be so marshalled as to take away this equity. The question here is equity against equity, in which case, possession ought to prevail.
    C. Constable, for defendant in error.
    The judgment of Ross against Shaw was a lien on the lands of Shaw, prior to the rendition of the judgment in favor of Wise against Shaw, and should, of necessity, have been first discharged. Rev. Sts. 1845, chap. 57, sec. 1; Reed v. Reed, 1 Watts & Serg. 235.
    The judgment of Ross against Shaw, being much the oldest, should have been first satisfied, although the lands were also levied upon by virtue of the execution in favor of. Wise against Shaw. Jennings v. Dennis, 6 Smedes & Marsh. 379; Friar v. Ray, 5 Mis. 510; Lemon v. Staats, 1 Cowen, 592; Ferguson, Thomas and Anderson, v. S. J. and S. L. Williams, 3 B. Monr. 302; Religious Society v. Hitchcock, 2 Browne, 333.
    A surety is entitled to have his contract executed according to its terms, and in strict conformity with law as applicable thereto; and all persons claiming by, through, or under him, succeed to his rights, whenever incidentally affected by such contract.
    The Wises, as the purchasers and owners of Ross’s judgments against Price and Shaw, took'them, subject to all the equities and adverse rights of others, against Ross, as growing out of, or incident to them. They, therefore, took the judgment against Price, subject to his equity, to have the moneys raised on the sale of Shaw’s land, applied to the satisfaction of the judgment against Shaw, for which debt he was surety, and not diverted and applied to the satisfaction of the Wises’ judgment against Shaw, which was some six years junior; and the act of the Messrs. Wise, in directing an application of the proceeds of Shaw’s lands to their junior judgment, was a fraud on the rights of Price and those claiming under him, &c. In support of this, I need only quote the authorities in support of the second point noted by plaintiffs in error in their briefs submitted, &c.
    This case is to be regarded as if Gibson, a creditor of Price, on the one hand, were seeking relief against Ross, also a creditor of Price, but who has another security — the lands of Shaw, Price’s principal—to make his debt; and, when thus viewed in its true light, no question can exist as to the propriety of the adjudication herein, in the court below.
    1 Story’s Equity Juris. §§ 633, 634, the last of which is directly in point. See also what follows, under chap. 13.
   Trumbull, J.

The case presented by the bill, is this. In October, 1840, Ross obtained two several judgments for $605.27 each, and costs — one against J. B. Shaw, the principal; the other against D. Price, his security for the same debt.

Subsequent to these judgments, Price executed a mortgage to James Gibson, of location No. one, township 4 north, range 10 west, containing twenty-five acres, which was duly acknowledged and recorded December 29,1840. In April, 1841, the Wises recovered a judgment against Shaw for $1,491.05. In November, 1846, alias executions were issued upon the judgments against Shaw, and levied upon various tracts of land owned by him, which were subsequently sold, and the proceeds applied upon the judgments in favor of the Wises, leaving the older judgment in favor of Ross, of which the Wises had at that time become the owners, wholly unsatisfied. In April, 1847, Gibson foreclosed his mortgage against Price; and in September of the same year the mortgaged premises were sold under the decree of foreclosure, and purchased by the complainant, Shepherd. In the month of October following, the same premises were sold on an execution issued upon the judgment against Price as security for Shaw, and purchased in by the Wises. The proceeds of Shaw’s property applied upon the judgment in favor of the Wises, were more than sufficient to have paid off the Ross judgment; and the object of the bill was to have them so applied, thereby relieving the property mortgaged from the lien of Ross’s judgment, and securing the same to the complainant, by setting aside the sale made on the execution issued upon the judgment.

The Circuit Court overruled a demurrer to the biH, and defendants declining to answer further, entered a decree upon bill and exhibits granting the relief sought.

The rendering of this decree is now assigned for error. The contest is between parties, both of whom have just claims, which ought to be satisfied. The question, then, is, who has the superior equity to subject the property mortgaged by Price to the payment of his debt; the mortgagee or the Wises ? for if the sale made under the execution issued upon the Ross judgment is permitted to stand, it is in effect permitting the Wises to obtain satisfaction of their judgment against Shaw out of Price, at least to the extent of the value of the property of Price taken in satisfaction of the Ross judgment. It is clear that the Wises possessed no other or greater rights over the property of Price than did Ross, from whom they purchased the judgment. As between Ross, Shaw, and Price, Shaw was bound in equity to pay the debt to Ross. Price was the mere security for Shaw, and ought not in justice to have his property subjected to the payment of his principal’s debt, while the principal has property of his own, subject to the same debt, amply sufficient to discharge it.

According to the authority of the cases of Ex parte Kendall, 17 Ves. 520, and Dorr v. Shaw, 4 Johns. Ch. R. 17, the Wises could not have compelled Ross to satisfy his demand against Shaw and Price out of the property of the latter, so as to leave the estate of the former to be applied in satisfaction of their judgment, because it would be unjust, as between Price and Shaw, to compel the former to pay the debt of the latter. It is a familiar principle, that where there are two creditors of one debtor, the first having two funds to which he may resort for the satisfaction of his debt, and the second only being able to reach one of the funds, the first shall resort for satisfaction of his debt to that fund which he alone can reach, and thus leave to the junior creditor the only means he has for obtaining payment of his demand. This course is equitable as to all parties, and does injustice to none. Lanoy v. Duke of Athol, 2 Atk. 446; Everton v. Booth, 19 Johns. 492; Hayes v. Ward, 4 Johns. Ch. R. 132. But this principle, as shown by the cases of Ex parte Kendall, and of Wood v. Shaw, has never been extended to a case where one of the two creditors has a lien for his debt upon two funds belonging to two separate debtors, and the other has a lien only upon the fund belonging to one, so as to compel the first to make his debt wholly out of that debtor whom the other creditor cannot reach, unless the relation between the debtors be such as to make it equitable that the debtor having but the one creditor should pay the whole demand against him and his co-debtor, and thus leave the property of his co-debtor free to be taken in satisfaction of the claim against him alone. Gibson comes within the exception. He held a mortgage upon the real estate of Price, against whom and Shaw, Ross had previously obtained a judgment, which was a lien upon the real estate of both the debtors. Price, however, was a mere security for the debt due Ross, and as between these parties it would be equitable all round, that Ross should first exhaust the property of Shaw before going upon that of Price, or if Price was compelled in the first instance to pay the debt to Ross, he would then be entitled to the control of the judgment against Shaw for the purpose of reimbursing himself, what he had been obliged to pay as his security. Not so, however, with the Wises. Their relation to the debtors Shaw and Price was entirely different from that of Gibson. Their judgment was against Shaw, the principal in the debt to Ross, and it would be doing the grossest injustice to Price to compel him to pay the debt to Ross, for the purpose of leaving Shaw’s property free to be applied in satisfaction of another debt which he owed the Wises. Ebenhardt’s Appeal, 8 Watts & Serg. 327. The Wises doubtless ought to have satisfaction of their debt, but equity will never sanction a principle which, though it may do justice to creditors, will work iniquity to debtors.

There is another reason why the complainant, who is substituted in the place of Gibson, the mortgagee, and is to be regarded as the purchaser of the mortgaged premises at the date of the mortgage, has the better equity. The mortgage is of an earlier date than the judgment against Shaw, in favor of the Wises. At the time the mortgage was executed, the premises were subject to the lien of the judgment in favor of Boss, and the equities, as between Boss and Gibson, who were the only persons that then had claims against Price, evidently were, that Boss should resort in the first instance to the property of Shaw, the principal, and if possible make his claim out of his estate. The right of Gibson to insist that Boss should first resort to the property of Shaw, before touching the mortgaged premises, had attached before the Wises obtained their judgment; and that right could not be divested either by a transfer of the Boss judgment to the Wises, or by their obtaining a subsequent judgment against Shaw. Reynolds v. Tooker, 18 Wend. 591; Neef v. Miller, 8 Barr, 347.

The equity contended for by the Wises, did not arise till after that of Gibson had become fixed, and it could not be permitted to prevail without overturning his prior, and therefore better equity. He stands in the position of the first purchaser of part of the real estate of a judgment debtor, in which case the creditor may be required to sell, in the first instance, that portion of the debtor’s estate still remaining in his hands; and where there have been several sales by the debtor at different periods, the creditor may be required to sell in the inverse order of the alienations. Gill v. Lyon, 1 Johns. Ch. R. 446; Clowes v. Dickenson, 5 Johns. R. 235; James v. Hubbard, 1 Paige, 228.

The decree of the Circuit Court is affirmed with costs.

Decree affirmed.


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    The Trustees of Schools for Township six, in South range six West, Appellants, v. Charles N. Starbird, Appellee.
    APPEAL FROM RANDOLPH.
    Where a party by himself or his agent undertakes to appeal from the decision of a justice of the peace, and executes a bond which is accepted, the appeal shall be sustained, if he will supply any defect in the bond, when objection is made thereto.
    This action was commenced by Starbird before a justice of the peace in Randolph county, upon which he recovered a judgment against the Trustees of Schools. One of the trustees took an appeal to the Circuit Court of Randolph county. A motion was made in the Circuit Court to dismiss the appeal for want of a sufficient -bond, and also a motion to amend the appeal bond. The Circuit Court sustained the motion to dismiss, and entered judgment accordingly. From this judgment of the Circuit Court, the trustees took an appeal to this court.
    The judgment of the Circuit Court was pronounced by Underwood, Judge, at September Term, 1850, of the Randolph Circuit Court.
    G. Koerner, for appellants.
    S. Breese, for appellee.
   Treat, C. J.

Starbird recovered a judgment, before a justice of the peace, against the trustees of schools, of a township-in Randolph county. An appeal bond was entered into by one of the trustees, and approved by the clerk of the Circuit Court.. The court overruled an application by the trustees to amend the bond, and sustained a motion of the plaintiff to dismiss the-appeal.

This case is not distinguishable from those of Bragg v. Fessenden, 11 Ill. 544, and Boosman v. Freeman, 12 Ill. 165. The principle is settled in those cases, that where a party, by himself or his agent, undertakes to appeal from the decision of a justice of the peace, and makes such an attempt at the execution of an appeal bond, that the proper officer accepts it, he shall not be prejudiced by reason of any deficiency in the obligation, if he will, when objection is made, supply the defect. Here the bond was defective, because not executed by the corporation against which the judgment was rendered. It was, however, binding on the obligors personally, and the appellee was, consequently, not without a remedy. The trustee intended to take an appeal that would enable the corporation to have the case re-heard, and, for that purpose, executed a bond which was approved and accepted by the clerk. The court should have permitted the trustees to perfect this appeal, by the execution of a bond obligatory on the corporation.

The judgment is reversed, and the cause remanded.

Judgment reversed.