text:
    Ira V. Germain, appellant, vs. The Steam Tug Indiana, appellee.

      Appeal from Cook County Court of Common Pleas.

    The tenth chapter of the Revised Statutes creates a lien in favor of those engaged in running and managing a vessel, and those furnishing her with materials or supplies ,• which attaches the moment the liability is incurred. The lien, however, cannot be asserted to the prejudice of creditors, incumbrancers or purchasers, unless the remedy is pursued within three months after the cause of action accrues. To this extent, the maratime law is extended over domestic vessels.

      The claims of seamen are superior to those of material-men, and are to be first paid.
    Our statute adopts the maratime law, in the creation of a lien in favor of mariners and material-men, but has provided a different remedy for the enforcement of such lien, which, although in some respects a proceeding in rein, has no such conclusive effect as an admiralty decree.
    The sale of a vessel, under a judgment in attachment, obtained by a seaman or material-man, does not divest any liens of a superior degree, nor any antecedent liens of the same degree.
    A lien once acquired continues in full force three months, unaffected by any proceedings to enforce subsequent liens, and the lien-holder is not chargeable with laches until that period has elapsed.
    On the twentieth day of October, 1849, the appellant shed out of the Cook County Court a writ of attachment against said Steam Tug Indiana; which was executed on that day. The proceeding was under the statute entitled “ Attachments of boats and vessels.” At the February term following, George W. Lay interpleaded, and, by his interpleader, set up, that on the tenth day of October, 1849, and previous to suing out the attachment of appellant, attachments were issued by Henry L. Ruck-er, a justice of the peace, in and for said county, under and by virtue of the same act, in favor of divers parties, and that such proceedings were afterwards had before such justice; that judgment was rendered upon the claims set up by said parties ; and that on the 19th day of November, 1849, the said Steam Tug was sold, to satisfy said judgments; and that said Lay became the purchaser thereof, at the sale, for the sum of four hundred dollars. To this plea of interpleader the said appellant filed his demurrer. The demand of the appellant was for fuel furnished the said steamboat, between the eighth and twenty-fourth days of September, 1849.
    The cause came on to be heard before Spring, Judge, at the February term of the Cook County Court of Common Pleas. The Court overruled the demurrer ; and the appellant electing to stand by his demurrer, the Court pronounced the interpleading sufficient in law, dismissed the attachment of appellant, and found the right of property in said steamboat in said George W. Lay. From this decision this appeal was prayed.
    Manniere & Meeker, for appellant, cited 4 Gilman, 435; Law Reporter, June number, for 1850, pages 66, 67 and 68; 1 Sumner, 81 and 85; 5 Peters, 689 ; Ware Rep., 108, 149, 154, 188, 322, 363; Gilp., 185; 2 Gall., 483; 1 Gilm., 636; 6 Peters’ Cond., 505; 2 Story, 144, 455’; 9 Wheaton, 409; 14 Ohio Rep., 28; 1 Peters, 386, 441-3.

      I. N. Arnold, for appellee, cited 5 Blackford, 483, and 10 Missouri, 527.
   Opinion by Treat, C. J.:

The plea presents the question, whether the sale of a vessel, under a judgment in attachment, rendered in a proceeding to enforce a lien existing on the vessel, by virtue of the provisions of the tenth chapter of the Revised Statutes, discharges all other liens that may exist against the vessel, in pursuance of the same provisions.

The first section of that chapter declares, that “ Boats and vessels of all descriptions, built, repaired or equipped, or running upon any of the navigable waters within the jurisdiction of this state, shall be liable for all debts contracted by the owner or owners, masters, supercargoes or consignees thereof, on account of all work done, supplies or materials furnished by mechanics, tradesmen and others, for, on account of, or towards the building, repairing, fitting, furnishing or equipping such boats and vessels, their engines, machinery, sails, rigging, tackle, apparel and furniture; and such debts shall have the preference of all other debts due from the owners or proprietors, except the wages of mariners, boatmen and others, employed in the service of such boats and vessels, which shall first be paid.”

By the second and third sections, any person having a demand against a vessel, of the character named in the preceding section, may sue out an attachment, and have it levied on the vessel; and thereupon the like proceedings are to be had as in other cases of attachments.

The sixth section provides, that “ no creditor shall be allowed to enforce the lien created under the provisions of this chapter, as against, or to the prejudice of any other creditor, or subsequent incumbrancer, or bona fide purchaser, unless suit be instituted to enforce such lien, as provided in this chapter, within three months after the indebtedness accrues or becomes due, according to the terms of the contract.”

These provisions clearly create a lien in favor of those engaged in the running and management of a vessel, and those furnishing her with materials or supplies. The lien attaches the moment the liability is incurred. It is acquired by force of the statute, and not by virtue of the levy, as in the case of an ordinary attachment. The attachment is but the remedy prescribed for the enforcement of the lien. The lien, however, cannot be asserted to the prejudice of creditors, incumbrancers or purchasers, unless the remedy is pursued within three months after the cause of action accrues. To this extent, the maratime law, as.respects the rights of seamen and material-men, seems to he extended over domestic vessels. The claims of the former are superior to those of the latter, and are to be first paid.

It is contended, that the effect of a sale under the statutory remedy, is the same as that upon a proceeding in admiralty under the maratime law. In the Admiralty Courts, the proceeding is directly against the vessel, and all persons interested are regarded as parties. They are required, by the most solemn forms of notice, to appear and make known their demands against the vessel. The Court then proceeds to settle and adjust the various claims and interests of the parties. The decree is for the sale of the entire interest in the vessel, and is conclusive on all the world. The sale is for the benefit of all concerned, and the proceeds are distributed, under the direction of the Court, according to the ascertained rights of the parties. The purchaser acquires an indefeasible title to the vessel, divested of all liens of whatsoever nature.

If our statute authorized such an adjustment of the rights of lien-holders, and required such a distribution of the proceeds, we should not hesitate to hold, that the sale would have all the force and effect of a sale under a decree in admiralty. But the statute seems to go no further in the adoption of the maratime law, than the creation of a lien in favor of the material-man and mariner. It fails to provide a mode of enforcing the lien, at all analagous to the proceeding in admiralty. On the contrary, the ordinary remedy by attachment is prescribed, which, although in some respects a proceeding in rem, has no such conclusive effect as an admiralty decree. The fact that the Legislature has provided a different remedy, excludes any conclusion that it designed either to adopt the maratime remedy, or the consequences resulting therefrom. Under the statute, each lien-holder must institute a distinct proceeding, in order to enforce his lien. They are not even required to pursue their remedies before the same tribunal. One of them cannot appear in a suit commenced by another, and assert his claim against the vessel. The Court in which different actions may be pending against the same vessel, has no authority to consolidate them, but each progresses as an independent proceeding. It has no power to bring before it the various parties in interest, and, after ascertaining their respective rights, direct a sale of the vessel, and a distribution of the proceeds among them. It can only enter a judgment in favor of each attaching creditor, and award an execution for the sale thereof. The surplus, after the satisfaction of the particular judgment, goes to the owner of the vessel, without reference to existing liens. The purchaser takes the vessel, subject to every subsisting lien of a superior class, and to those of the same class originating prior to the one on which the attachment was founded. It cannot be insisted that the most vigilant in the prosecution of his remedy, is entitled to priority in payment. A lien once acquired, continues in full force for three months, unaffected by any proceedings to enforce subsequent liens. The lien-holder is not chargeable with laches until that period has elapsed. In the opinion of the Court, the sale of a vessel under a judgment in attachment, obtained by a seaman or material-man, does not divest any liens of a superior degree, nor any antecedent liens of the same degree.

We were referred to the cases of The Steamboat Rover vs. Stiles, 5 Blackford, 483, and The Steamboat Raritan vs. Smith, 10 Missouri, 527, as holding a contrary doctrine, under similar statutes. The statute of Indiana, under which the first decision was made, authorized any number of lien-holders to unite in pursuing their remedy; and the Court held, that a party, who had neglected to appear and interpose his claim in a proceeding against a vessel, could not afterwards insist on his lien, to the prejudice of the purchaser under the judgment rendered in that proceeding. The decision may be justified by the peculiar statute of that state, authorizing a remedy much resembling the proceeding in admiralty, but it furnishes no criterion for a correct interpretation of our statute, materially variant in its provisions. The other case arose on a statute of Missouri, very much like ours ; and it was held, that a sale of a boat to satisfy a lien of any class, conveyed to the purchaser a title free from the liens of every other class, superior as well as inferior. We are not satisfied with the reasons of the Court for such a conclusion. The fault in the case is in applying the effect of a proceeding in admiralty, where all persons interested have a right to appear to a proceeding in which they are not permitted to intervene for the protection of their interests. It is contrary to all our notions of justice and equity, to divest a man of his rights by a proceeding to which he is not a party, and in which he cannot appear and defend them. If he is to be concluded by the judgment, an opportunity should be afforded him of presenting his claims for adjustment.

The Court below erred in overruling the demurrer to the plea, and the judgment must be reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.


source: Caselaw Access Project

author: Opinion by Mr. Justice Catón :

license: Public Domain

text:
    James C. Armstrong, et al., plaintiffs in error, vs. Jonathan K. Cooper, administrator, &c., defendant in error.

      Error to Peoria.

    A decree entered by consent cannot be appealed from; nor can error properly be assigned upon it. A rebearing in such a ease will not be allowed; nor can the decree be set aside by a bill of review.
    This was a plea of release of errors, filed by C. Ballance, as attorney for the defendant in error. The plea alleges, that the said plaintiffs ought not to have their suit in error, because George T. Metcalfe, intermarried with one of the heirs at law of Lewis Bigelow, and was one of the administrators of the estate of Bigelow, and was, moreover, the attorney and counsellor of said heirs, authorized to settle the affairs of said estate, at his discretion, and that Elihu N. Powell was his surety on the administration bond, and that after the bill was filed, upon which this writ of error is prosecuted, Metcalfe, being authorized as aforesaid, proposed to Ballance, then acting as attorney for complainants, that if he would so amend the bill which he had filed in the Circuit Court against said Metcalfe and the other representatives of Bigelow, deceased, as to release said Powell, and take a decree for a less amount than was claimed by the bill, and would strike out of said bill so much as related to a certain lost mortgage, and would take a decree against certain specified lots of land, that then he, Metcalfe, would permit the decree to be taken. That Ballance acceded to this proposition, and did then and there, with the consent of Metcalfe, take the decree now sought to be reversed: wherefore, the defendant was precluded from assigning any error upon said decree.
    To this plea, N. H. Purple, for the plaintiffs in error, filed a demurrer, and assigned several causes of demurrer.
    Upon argument, the demurrer was overruled. At a subsequent day in the term, the plea was withdrawn.
   Opinion by Mr. Justice Catón :

In the Circuit Court, the bill was taken for confessed, a reference made to a master, upon the coming in and confirmation of whose report, the decree was entered; the record showing no appearance of any of the defendants in the Court below. A part of those defendants now bring the record here by writ of error, and have assigned errors upon it. The defendant in error has filed a special plea, stating, in substance, that the decree of the Circuit Court was, in fact, entered by the consent and agreement of Metcalfe, one of the defendants in the Court below, and who was the attorney of the other defendants in that Court, with due authority to represent them there. To this plea the plaintiffs in error have filed a demurrer, objecting that the party cannot go behind or outside the record, and show that the decree was entered by agreement of the parties, while the record shows that it was entered by default.

A decree which is entered by the agreement or consent of the parties or their counsel, ought more properly to state that fact upon its face. 2 Daniel’s Chan. Pl. and Prac., 1214. But we have found no authority for saying that that is indispensable, or that it can only be shown by the record that the decree was so entered. As between the parties to the record, it may well be admitted that nothing can be shown which will contradict it. But here the averment does not contradict the record, but is consistent with it. The agreement was, that certain amendments should be made to the bill, and the complainant should be permitted to take a decree; and that under the supervision and with the consent of Metcalfe,” the counsel for the defendants, the amendments were made and the decree taken.

A decree made by consent cannot be appealed from, nor can error be properly assigned upon it. Even a rehearing cannot be allowed in the suit; nor can the decree be set aside by a bill of review. 1 Barb. Ch. Prac., 373.

This Court being of opinion that this plea does sufficiently allege that the decree was entered by consent, the demurrer will have to be overruled, with costs, and leave given to the plaintiff in error to reply.

Demurrer overruled.


author: Opinion by Treat, C. J.:

text:
    Harrison Graves et al., plaintiffs in error, vs. The People of the State of Illinois, defendants in error.

      Error to Kane.

    A recognizance for the appearance of a person by the name of William H. Graves is not forfeited by an indictment against Harrison Graves, and his non-appearance. If the facts of the case warranted it, there should have been an averment in the scire facias, that Harrison Graves was the person who entered into the recognizance by the name of William H. Graves.
    The recognizance sets out that William H. Graves, of the county of Du Page, and Jesse Graves and David Root, personally appeared before two justices of the peace of the county of Kane, and entered into a recognizance, conditioned that the said William H. Graves should appear at the next term of the Kane Circuit Court, &c. The recognizance is signed W. H. Graves. An indictment for larceny was found against Harrison Graves, at the December special term, 1848, of the Kane Circuit Court. At the same term of the Court, a default was entered against Harrison Graves and the others. The scire facias was against William H. Graves. On the return of the sci. fa., Graves, by his counsel, filed a demurrer, which the Court, T. L. Dickey, Judge, overruled; and thereupon an order was entered, that execution should issue upon the judgment theretofore entered upon the forfeiture of the recognizance.
    Graves and the others bring the cause to this Court, and assign for error the overruling of the demurrer to the scire facias, and that the judgment in the Court below is against the law, &c.

      E. S. Leland and B. F. Fridley, for the plaintiffs in error.
    B. C. Cook, district attorney for the' ninth circuit, for the People.
   Opinion by Treat, C. J.:

There is a fatal objection to the scire facias. The recognizance was conditioned for the appearance of William H. Graves. An indictment was presented against Harrison Graves, and a forfeiture of the recognizance entered for his non-appearance. This does not show any breach of the obligation. If the facts of the case warranted it, there should have been an averment in the scire facias that Harrison Graves was the same person who entered into the recognizance by the name of William H. Graves. As the scire facias shows no cause of action, the judgment must be reversed; but another scire facias, containing proper averments, may be prosecuted.

Judgment reversed.


text:
    George T. Hopkins, plaintiff in error, vs. Ethan Walter, junior, defendant in error.

      Error to Kendall.

    A justice of the peace may render judgment upon the confession of a party who is before mm and acknowledges an indebtedness within his jurisdiction.
    This was an action of debt, brought before a justice of the peace, upon a judgment confessed by the defendant before another justice of the peace. The plaintiff succeeded, and the defendant took an appeal to the special term of the Kendall Circuit Court, held in November, 1849, Spring, Judge, presiding. The cause was submitted to the Court for trial, without the intervention of a jury 5 and the judgment was affirmed. The appellant in the Circuit Court brings the cause here, by writ of error.
    S. W. Randall, for plaintiff in error.
    E. S. Leland, for defendant in error.
   Opinion by Treat, C. J.:

This was an action of debt, founded upon a judgment rendered by a justice of the peace. The only question presented for our consideration is as to the validity of that judgment. We entertain no doubt as to the authority of a justice of the peace to render a judgment by confession, when the party was before him and acknowledges an indebtedness to an amount within his jurisdiction. A confession between the parties to a suit furnishes the most satisfactory evidence of indebtedness. The judgment in question is not technically drawn, but enough appears to justify us in affirming the judgment, with costs.

Judgment affirmed.


author: Opinion by Mr. Justice Trumbull :

text:
    Addison G. Bragg, appellant, vs. William Fessenden, appellee.

      Appeal from Lee.

    Whenever a partly intends to appeal from the decision of a justice of the peace, and makes such an attempt at the execution of a bond, that the officer authorized to approve it accepts the bond, the appellant should not be prejudiced by reason of any informality or deficiency in the bond.
    An agent, to execute a valid appeal bond, must be authorized by a power under seal ,* but if he execute a bond for his principal, without being authorized by a power under seal, a subsequent ratification of the bond by the principal, under seal, will cure the defect.
    To execute an instrumentjunder seal, the agent, to do so, must be authorized by a power under seal.
    The facts involved in this suit are set out in the following agreed case:
    “ This was a judgment originally rendered by a justice of the peace, on 2d July, 1849, and appealed to the Circuit Court of Lee county, on the 21st day of July following. The appeal bond was executed in due form, signed as follows :
    “Addison G. Bragg, (seal,)

      by Robert C. Masters, his attorney in fact.

    “Robert C. Masters, (seal.”)
    On application of the defendant in the Court below, at April term, 1850, it was ordered that Masters should file his authority to sign the name of Bragg to the appeal bond. This authority was a letter, not under seal, requiring Masters to take the appeal. That in November, 1849, Bragg executed and filed in the office of the clerk of the Circuit Court, a power of attorney, under seal, ratifying and confirming the act of Masters, in signing said bond and taking said appeal. The Circuit Court, on motion of the defendant, dismissed the appeal, for the reason that at the time the appeal bond was executed, Masters had not authority, under seal, to execute a bond in the name of Bragg. Cause heard before Sheldon, Judge.
    Glover & Cook, for appellant.
    Thomas J. Turner and E. S. Leland, for appellee.
   Opinion by Mr. Justice Trumbull :

Bragg, against whom a judgment had been entered by a justice of the peace, wrote his agent, requesting him to take an appeal to the Circuit-Court; but the authority to take the appeal was not under seal. The agent, however, executed an appeal bond, in due form, affixing a seal to his principal’s name. Subsequently Bragg ratified and confirmed the act of his agent, by the execution of a power of attorney under seal. The Circuit Court dismissed the appeal for want of a sufficient bond—it appearing that the power of attorney was not executed till more than twenty days from the time of taking the appeal. That the agent had no authority to execute a sealed instrument for his principal, at the time the bond was given, is clear; because to have been authorized to execute an instrument under seal, he must have had authority under seal. It has been insisted that Bragg’s recognition of the act of his agent relates back to the time the bond was executed, and is equivalent to an original authority. Without stopping to inquire whether this be so or not, in this particular case, there can be no question that, under our statute, the Court erred in dismissing the appeal. Section sixty-five of the act concerning justices of the peace and constables, (R. S., 325,) declares : “ If, upon the trial of any appeal, the bond required to be given shall be adjudged informal or otherwise insufficient, the party who shall have executed such bond shall in no wise be prejudiced by reason of such informality or insufficiency; Provided, he will, in a reasonable time, to be fixed by the Court, execute and file a good and sufficient bond.” In this case it was unnecessary to file a new bond; the one already filed having been made valid, by the ratification of the principal. That Bragg intended to take an appeal, is manifest; and whenever a party intends appealing, and makes such an attempt at the execution of a bond, that the officer authorized to approve it accepts the bond, it is not the design of the statute that the appellant should be prejudiced by reason of any informality or deficiency in the bond. The agent, by executing a bond for his principal, without sufficient authority, undoubtedly created a legal liability as against himself, and the appellee was not left wholly without a remedy upon the obligation.

The precise point under consideration has never before been raised in this Court; but cases analogous in principle have repeatedly been decided, and no doubt has been entertained that the statute was intended to cover all cases of this character. In the case of Dedman vs. Barber, 1 Scam., 255, the appeal bond was in the form adapted to an appeal from the Circuit to the Supreme Court, and admitted to be insufficient in the case of an appeal from a justice of the peace ; yet this Court reversed the judgment of the Circuit Court dismissing the appeal and refusing the appellant leave to amend his bond. The Court say in their opinion, that the appellant, by executing what was intended to be a good bond, with such security as was approved of by the clerk, did all that was required of him until the bond was pronounced insufficient by the Court.” In the case of Waldo vs. Averett, 1 Scam., 487, the Court, in passing upon a bond which had been held insufficient by the Circuit Court, say: “ If it is admitted that the bond was ever so defective, the Court nevertheless erred in dismissing the appeal; it ought to have allowed the motion of the appellants to file a good bond.” In the case of Hubbard et al. vs. Freer, this Court held that an appeal bond which had been executed in the name of a firm, with one seal only, might be amended. But the case most analogous in principle to the one under consideration, is that of Hunter vs. Ladd, 1 Scam., 551. In that case an application was made to amend an attachment bond, which had no seals to the signatures of the obligors. The Circuit Court refused the leave, and this Court sustained that judgment, but it was upon the- ground alone that the application to affix a seal to the bond was made by one of the obligors only; and, from the whole reasoning of the Court, it is manifest that the decision would have been different had the application been made by all the obligors.

We think the bond in this case, under our statute and the construction which has heretofore been placed upon it, should have been held sufficient.

Judgment of the Circuit Court reversed, and cause remanded.

Judgment reversed.


text:
    Luke Wood, appellant, vs. George Morton, appellee.

      Appeal from Peoria.

    Iii ejectment, under our statute, a party cannot recover, -unless he shows himself entitled to the possession at the time of the demise laid in the declaration.
    On the trial the plaintiff' is not bound to prove the accruing«of his title precisely as laid, if he show a title anterior to the day named in the declaration.
    A tenant is entitled, in this action, to a notice to quit; but this may be superseded, and the tenancy terminated, by the denial of the tenant, by word or act, of the title of his landlord.
    This was an action in ejectment, by notice and declaration, in the usual form, brought in the Peoria Circuit Court, by appellee against the appellant, to recover the possession of lot number eight, in block number twenty, in the town of Peoria. The cause was heard at the June term, 1848, before a jury, Catón, Justice, presiding; when a verdict and judgment were rendered for the appellee. A motion for a new trial was overruled. The errors and facts in the case upon which the decision of this Court is based, will sufficiently appear in the opinion of the Court.
    N. H. Purple and E. S. Leland, for appellant.
    C. Ballance, for appellee.
   Opinion by Mr. Justice Catón :

Under the old practice in ejectment, when the names of fictitious parties were used, the plaintiff could not recover, unless he showed himself entitled to the possession at the time of the demise laid in the declaration. Goodtille vs. Herbert, 4 Term R., 680; Jackson vs. Wheeler, 6 John. R., 272. The same principle obtains under our statute regulating the action of ejectment, and abolishing the fiction formerly resorted to. In this case, the declaration avers, that the plaintiff was possessed of, and had a fee simple title to, the premises in question, on the first day of June, 1844; and the deed from Metcalf to himself^ which is the only title established in-himself, is dated on the 21st day of the same month. At the time, then, when he avers in his declaration that he was possessed of the premises, and when he avers that he was ejected by the defendant below, his title had not accrued, nor did it accrue till twenty days after. This was a fatal objection to the plaintiff’s right to- recover. The seventh section of our ejectment law provides, “it shall be sufficient for the plaintiff to aver in his declaration that (on some day therein to be specified, and which shall be after his title accrued,) he was possessed of the premises in question,” &e. The requirement of the statute is- positive that-the time laid in the declaration, of the plaintiff’s possession, shall be subsequent to the time when his- title- accrued. Unless this is done, the plaintiff cannot recover ;■ for;, to that extent, the time laid is made material. The same-construction was given to the statute of New York, from which ours is taken. In the case of Sigler vs. Van Riper, 10 Wend., 414, the Court said, “ the averment of title must be laid subsequent to the title actually accruing, and an ouster must be stated on some day afterwards. On the- trial, however, the plaintiff is not bound to prove the accruing of his title precisely as laid; it is enough if he show title before the day laid in the declaration.” But the opinion of any Court, that the statute means what it expressly says, can hardly strengthen our convictions that such is the case. Certainly it was not necessary to prove that the law is as the Legislature has declared.

But it was insisted by the counsel for the defendant in error, that Morton had title anterior to that claimed under the deed from Metcalf, and before the time laid in the declaration. If this be so, the record certainly fails to show it. We may infer from Metcalf’s testimony, that Morton had, previous to that time, some equitable interest, at least, in the premises ; but of a legal title there is no intimation, much less proof. If the record does not show the case as it appeared on the circuit, that cannot be helped now, for here it must be tried by the record alone.

As this is conclusive against the right of the plaintiff below to recover, at least as the case appears on this record, it is unnecessary for us to go further and inquire into the propriety of the instructions given and refused, although it may not be improper to remark that we fully recognize the existence of the common law rule, by which the tenant may be entitled to notice to quit, and that the necessity of that notice is superseded, and that the tenancy may be terminated by the denial by the tenant, by word or act, of the title of his landlord.

The judgment of the Circuit Court is reversed, with costs, and the cause remanded, with leave to the plaintiff to amend his declaration.

Judgment reversed.


text:
    Joshua J. Moore, plaintiff in error, vs. George W. Little, et al., administrators of the estate of Robert E. Little, deceased, defendants in error.

      Error to Peoria.

    It is erroneous to proceed to the trial of issues of fact, while questions of law, arising upon a demurrer, remain undetermined»
    This was an action of assumpsit, heard before Mr. Justice Catón and a jury, at June term, 1848, of the Peoria Circuit Court, and judgment was rendered for defendants in error for the sum of $ 131 04. The defendant below brings the case to this Court, and assigns for error that the Circuit Court erred in rendering judgment while there was an issue of law pending in said cause.
    J. Manning, for plaintiff in error.
    O. Peters, for defendants in error.
   Opinion by Treat, C. J.:

The record discloses this state of case. The declaration was on a promissory note. The defendant filed six pleas, on five of which issues of fact were formed. There was a demurrer and joinder in demurrer to a replication to the other plea. The issues of fact were then submitted to a jury, and the trial resulted in a verdict and judgment for the plaintiffs. It does not appear that any disposition was ever made of the demurrer. On this showing of the record, the judgment cannot be sustained. The questions of law arising on the demurrer should have been decided before proceeding to a trial of the issues of fact. This principle has been settled by numerous decisions of this Court. Nye vs. Wright, 2 Scammon, 222; Bradshaw vs. Hoblett, 4 ibid, 53; Steelman vs. Watson, 5 Gilman, 249. There is nothing on the face of the record to authorize the conclusion that the defendant abandoned his plea, or waived his right to a decision of the demurrer.

Let the judgment of the Circuit Court be reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.


text:
    Cornelius Lansing, plaintiff in error, vs. Ephraim J. Bates, defendant in error.

      Error to Boone.

    In a trial of tlie right of property, where both parties are partially successful, each is entitled to a judgment against the other, for costs.
    This was a trial of right of property, upon a seizure upon an execution from a justice of the peace. The judgment and finding before the justice were for the plaintiff in execution and present plaintiff in error. The claimant of the property prayed an appeal; and upon a trial of the cause in the Circuit Court, the jury found that a part of the property belonged to the claimant. The counsel of the plaintiff in execution in that Court moved to have the costs apportioned; which the Circuit Court, H. T. Henderson, Judge, refused to do, but gave judgment that the claimant recover his costs of the plaintiff in execution, the present appellee. This writ of error was sued out to correct this decision, as to costs.
    A. B. Coon, for plaintiff in error.

      Loop & Hurlbut, for defendant in error.
   Opinion by Treat, C. J.:

It is held in the action of replevin, where the verdict is for the plaintiff for a part of the property in controversy, and for the defendant for the residue, that each party is entitled to a judgment for costs. Powell vs. Hinsdale, 5 Mass., 348; Clark vs. Keith, 9 Ohio, 343; Brown vs. Smith, 1 New Hampshire, 36. We are inclined to hold the rule applicable to the trial of the right of property under our statute. This proceeding is a substitute for the action of replevin, in the case of personal property levied on by execution or attachment. Although a more summary and convenient remedy, it is designed to accomplish the same purpose—a determination of the rights of the parties in the property in dispute. By the provisions of the statute, if the property is found to belong to the claimant, it is to be restored to him, and the costs are to be taxed against the plaintiff in execution; but if the right in the property is found not to be in the claimant, the costs are to be taxed against him, and the officer is to proceed with the execution. Where the verdict is an entirety, the unsuccessful party is charged with all of the costs of the proceeding; but where the verdict is partly for both parties, each, to the extent of the finding in his favor, is considered as the prevailing party, and is entitled to recover his costs. The rule will operate beneficially in practice. The owner of property wrongfully taken on execution, will recover the costs incurred by him in asserting his rights; and the plaintiff in execution will recover the costs made by him in resisting an unfounded claim. In this case, both parties were partially successful, and each was entitled to a judgment against the other for his costs.

The judgment of the Circuit Court will be reversed, and the cause remanded to that Court, with directions to enter cross judgments in favor of each party for the costs made by them respectively.

Judgment reversed.


text:
    Neill Donnelly, appellant, vs. The People of the State of Illinois, ex relatione Derrick C. Bush, appellee.

      Jlppeal from McHenry.

    A proceeding by guo warranto is a criminal prosecution, and should be carried on “ in the name and by the authority of the People of the State of Illinois,” and should conclude, “ against the peace and dignity of the same.”
    This was a proceeding by quo warranto, instituted against the appellant, in the McHenry Circuit Court, on the relation of Bush, charging that appellant had usurped the office of sheriff of McHenry county, and enjoyed the privileges' and franchises thereofassigning as special cause, that he had omitted, when taking the oath of office, to take the anti-duelling oath prescribed by the constitution.
    The relation commenced: “And now comes Alonzo Platt, state’s attorney for the eleventh judicial circuit of the state of Illinois, and on the relation of Derrick C. Bush, who sues for the people in this behalf, and for the said people gives the Court here to understand and be informed,” &c., and concluded as follows : that appellant intrudes into the office “ contrary to law, and to the damage and prejudice of the said people of the state of Illinois; whereupon the said attorney of the people prays the advice of the Court,” See.

    The information was sustained in the Circuit Court, Henderson, Judge, presiding. There were several proceedings in the Court below, which are not noticed here, inasmuch as they are not necessary to an understanding of the points decided.
    P. W. Platt, for appellant.
    S. A. Huelbut, for appellee.
   Opinion by Mr. Justice Catón :

This proceeding is a prosecution, within the meaning of sec. 26, art. 5, of the constitution, and should have been carried on, and should have concluded, as is there required. ■ That section provides: “ All prosecutions shall he carried on £ in the name and by the authority of the People of the State of Illinois,’ and conclude, £ against the peace and dignity of the same.’ ” In its broadest sense, the word “prosecutions” would embrace all proceedingsin the Courts of justice, or even elsewhere, for the protection or enforcement of a right or the punishment of a wrong, whether of a public or private character. The word, as here used, however, has not that comprehensive meaning, but signifies prosecutions of a public or criminal character. When used in this sense, it means the mode of the formal accusation of offenders, and this may be by presentment, information or indictment. 4 Black. Com., 301; Web. Dict.: “Prosecution.”

This proceeding is a substitute for the ancient writ of quo warranto, but it is none the less a mode of criminal prosecution, as well to punish the usurper for the usurpation of the franchise, as to oust him from its enjoyment. The People vs. Utica Ins. Co., 15 John., 358. Blackstone says : “ This is properly a criminal method of prosecution, as well to punish the usurper by a fine, for the usurpation of the franchise, as to oust him, or seize it for the crown, but hath long been applied to the mere purpose of trying the civil right, seizing the franchise, or ousting the wrongful possessor; the fine being nominal only.” 3 Black. Com., 263. Our statute of quo warranto, has in no way changed the criminal character of this proceeding. It expressly provides, not only for judgment of ouster, but also that the defendant shall be punished for his usurpation by a fine. Rev. Stat., chap. 86, sec. 2. The criminal code provides for the punishment of the same offence, by indictment. Rev. Stat., chap. 30, sec. 105. A prosecution under one of these statutes, would necessarily be a bar to a proceeding under the other. It is not supposed, but that prosecutions by indictment are within the provision of the constitution, and indictments have always been framed in conformity to it. This is a rule of pleading prescribed by the constitution, and, when not conformed to, the indictment would be void. When the constitution says that prosecutions shall be presented or carried on in a particular mode, it is equivalent to saying that they shall not be presented or carried on in any other way. This is not only a criminal prosecution, but the rules of pleading, applicable to indictments, govern it. The same certainty and technical precision are required in both, and the principal if not the only difference between them is, that an indictment is presented by the grand jury, on their oaths, while in informations in the nature of a quo warranto, the Court is informed of the facts by the state’s attorney. In treating of these informations, Serjeant Hawkins says : “ An information differs from an indictment in little more than this, that the one is found by the oaths of twelve men, and the other is not so found, but is only the allegation of the officer who exhibits it. Whatsover certainty is requisite in an indictment, the same, at least, is necessary in an information, and consequently all the material parts of a crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital.” 2 Hawk. P. C., 357, sec. 4.

If, then, an indictment must be carried on “in the name and by the authority of the People of the State of Illinois,” and must conclude “ against the peace and dignity of the same,” the omission of these essential words in an information, must necessarily be fatal. The constitution requires them, and the Courts cannot dispense with them. The information being thus fatally defective, it is unnecessary that we should inquire whether the plea to which the Circuit Court sustained a demurrer, was good or not.

The judgment is reversed, with costs against the relator.

Judgment reversed.


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    The Board of Trustees of the Illinois and Michigan Canal, appellants, vs. Philo A. Haven and Orlando Haven, appellees.

      Appeal from Will.

      A proprietor of land, who lays out the same, under our statute, into town or city lots, vests the legal title to the land embraced by streets, in the corporation of the town or city, for the use and benefit of the public. It is a solemn dedication of the ground to the corporation, to be held in trust for the uses and purposes of the public.
    The recording of the plat passes the fee in the streets to the corporation. If the town has not a corporate existence, the fee remains in abeyance, subject to vest in the corporation the moment it is created.
    A purchaser of a town lot, designated upon a recorded plat, only acquires a title to the land included within the actual limits of the lot, as designated. He takes no interest in the street, except in common with the public, and cannot claim title to the centre of it.
    Biparian proprietors can only claim half of the bed of the stream, and the use of half of the water naturally flowing along the channel. The property in the water is indivisible j each riparian proprietor is bound to use it as an entire stream, in its natural channel, in such way as not materially to injure others, who are jointly interested in it.
    This was an appeal taken by the trustees of the canal from an order of the Will Circuit Court, approving an assessment of damages in favor of the appellees, occasioned by diverting the water of the Des Plaines river from their mill, and applying it to the uses of the canal. The assessment was made in pursuance of an agreed case, which will be found in the opinion of this Court, in a case between the same parties, reported in 5th Gil-man, commencing at page 548. The report of the assessors was made to the Will Circuit Court, Henderson, Judge, presiding.
    I. N. Arnold, for appellants.
    J. H. Collins and J. M. Wilson, for appellees.
   Opinion by Treat, C. J.:

It was decided at the last term of this Court, that the appellees, as the owners of lots one and two, in block fifty-seven, bounded on the east bank of the Des Plaines river, had title to the centre of the stream, and were entitled to recover damages from the appellants, for diverting the water of the river from its natural channel, opposite those lots, from the 20th of April, 1848, to the 12th of September following. Canal Trustees vs. Haven, 5 Gilman, 548.

The damages have since been estimated, and the amount directed to be paid by the Circuit Court, from which order an appeal has been prosecuted.- It is manifest from the report of the appraisers, that, in assessing the damages, they considered the appellees as the owners of both shores and the entire bed of the stream, and, consequently, entitled to the use of the whole of the water, as it is accustomed to flow along the channel. This presents the question, whether the appellees are riparian proprietors on the west bank of the river. They were the owners of lots one and four, in block fifty-six, on the west side of the river, from which, however, they were separated by a street, running up and down the stream. These lots lie directly opposite those owned by them on the east side of the river. Nearly all of the lots, and the whole of the street, are now occupied by the canal.

There are two conclusive reasons why the appellees are not riparian proprietors on the west bank of the river, and, therefore, have not an exclusive right to use the whole of the water naturally passing down the channel. The statute requires the proprietor of land, who is about to lay it out into town or city lots, to cause a plat thereof to he made, acknowledged and recorded, on which the lots, streets and alleys are to be particularly designated and described; and then proceeds to declare, that the plat or map, when made out, certified, acknowledged and Recorded, as required by this division, and every donation or grant to the public, or any individual or individuals, religious society or societies, or to any corporation or bodies politic, marked or noted as such on said plat or map, shall be deemed in law and in equity a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, and shall be considered, to all intents and purposes, as a general warranty against such donor or donors, their heirs and representatives, to the said donee or donees, grantee or grantees, for his, her or their use, for the uses and purposes therein named, expressed or intended, and for no other use or purpose whatever. And the land intended to be for streets, alleys, ways, commons or other public uses, in any town or city, or addition thereto, shall be held in the corporate name thereof, in trust to, and for the uses and purposes set forth and expressed or intended.” R. S., ch. 25, secs. 17 to 21. Under the provisions of this statute, the legal title to. the land embraced by a street is vested in the corporation of the town or city, for the use and benefit of the public. It is not in the power of the proprietor of the lots to transfer the fee in the street to his grantee. The acknowledgment and recording of the plat has all the force and effect of an express grant. It operates by way of estoppel, and concludes the former owner, and all claiming through or under him, from asserting title. It is a solemn dedication of the ground to the corporation, to be held in trust for the uses and purposes of the public. On the recording of the plat, the fee in the streets, eo instanti, passes to the corporation. If the plat is recorded before the town has a corporate existence, the fee remains in abeyance, subject to vest in the corporation the moment it is created. A purchaser only acquires a title to the land included within the actual limits of the lot, as designated on the plat. He takes no interest in the street, except in common with the public—the right of passage over it. He is estopped by the solemn act of his grantor, from claiming title to the centre of the street. Whether the title would revert to the former proprietor, on the dissolution of the corporation, or the abandonment of the ground for the purposes of a street, is a question which it is needless now to discuss.

But independent of the statute, there is a decisive objection to the claim of the appellees to riparian rights on the west bank of the river. By the common law, a grant of land bordering on a highway or river, carried the exclusive right and title in the highway or river to the centre thereof, subject to the right of passage in the public, unless the terms of the grant clearly indicated an intention on the part of the grantor to confine the grantee to the edge or margin. In such case, the highway or river is regarded as the boundary or monument, and the purchaser takes to the middle of the monument, as part and parcel of the grant. This is stating the principle as broadly as it is laid down in any of the elementary books, or established by any of the adjudged cases. Conceding, then, for the purpose of the argument, that the doctrine of the common law is strictly applicable to this case, and applying it in its full extent, the appellees would fail utterly to make good their claim. Their grant would only carry them to the middle of the boundary. They would have no title whatever to the east half of the street, or the west half of the bed of the river.

In every point of view, therefore, the appellees are not riparian owners on the west hank of the stream. As a matter of course, the appraisers erred in assessing the damages to which they are entitled. Instead of owning the entire bed of the river, and having an exclusive right to the use of the whole of the water, they are the proprietors of only half of the bed of the stream, and entitled to use but half of the water naturally flowing along the channel. The property in a stream of water is regarded as indivisible. Each riparian proprietor is bound to use it as an entire stream, in its natural channel; for a severance would destroy the rights of all. One proprietor cannot so appropriate or use the stream, as materially to injure others jointly interested in it. Vandenburgh vs. Van Bergen, 13 Johnson, 212; Plumleigh vs. Dawson, 1 Gilman, 544.

The appellees, having a right to only one half of the water, must use it as it is accustomed to flow down the channel. The erection of the dam across the stream, by means of which the head of water was increased, and the value of the site and improvements enhanced, was unauthorized. The assessment of damages for the deprivation of the water, must, therefore, he made with reference to the actual value of the use of one half of the water naturally flowing along the channel, without taking into consideration any artificial obstructions extending across the stream. If there had been no diversion of the water, the appellees could not maintain their dam across the river. The appellants were authorized by law to appropriate the water for the purposes of the canal, and they are only bound, in this proceeding, to compensate the appellees for the loss of their portion of it. The true measure of damages is the real value, for the period of time in question, of the use of one half of the water of the stream, to be used and applied in carrying on the mills and machinery of the appellees j in other words, how much would a man of ordinary prudence, desirous of leasing the site, water and improvements, be willing to pay for the use of them, in view of the rights of the appellees as above defined.

The judgment of the Circuit Court must be reversed, with costs, and the cause remanded, to the end that a reassessment of damages may be had.

Judgment reversed.


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    Richard H. McGoon, appellant, vs. Benjamin F. Ankeny, appellee.

      Appeal from Stephenson.

    A party considering an article entirely worthless, casts it away, intending to abandon it, he loses his title to it.
    Personal property, in the adverse possession of another, claiming it as his own, cannot be sold and transferred, even by the real ownerj he has but a right of action against the possessor, which is not the subject of legal transfer.
    This was an action of assumpsit, brought by Ankeny against McGoon, in the Jo Daviess Circuit Court, to recover the value of a quantity of slag, of which Ankeny claimed to be the owner. The suit was taken by change of venue to Stephenson county, where it was tried, before Sheldon, Judge, and a jury, at a special term, in October, 1849, when a verdict was found for the plaintiff, Ankeny, for the sum of $ 523 60. A motion was made for a new trial; which was allowed, unless Ankeny would remit $220, which he consented to do ; and, thereupon, judgment was rendered for plaintiff for the sum of $ 303 60. MeGoon appealed to this Court. The facts upon which the opinion is based, are sufficiently stated by it. *
    E. S. Leland, for appellant.
    M. Y. Johnson, for appellee.
   Opinion by Mr. Justice Catón :

Without knowing something more of the nature of the lease from the government to the smelters who made this slag, it is impossible for us to say whether the general property in the material which they worked continued in the government or not, as was insisted by the counsel for the appellant. Nor is the question of abandonment properly before us. It is undoubtedly true, that if those who made the slag, considering it entirely worthless, cast it away with the intention of abandoning it, they thereby divested themselves of their title to it, and could have no more cause to complain when it was taken by another than as if they had never owned it, unless they reclaimed it, without violating the rights of others, and before any other person had become possessed of it or had appropriated it. The evidence of abandonment in this case is certainly very strong, but that was a question more properly for the jury than for us; and we shall, therefore, not pursue the inquiry.

There is a question, however, which lies at the foundation of the plaintiff’s right to recover, as the case now stands, and upon which the judgment must be reversed. Mrs. Kelso swears, that in 1840 or 1841, her late husband, Mr. Washburn, sold the slag in question to the defendant below for $ 150, which was paid in money. She further states, that MeGoon had been in possession of the slag two or three years before she ever heard of any claim set up to it by Ankeny or any one else, although she had heard frequent conversations between Journey, Smith and others and Washburn, in relation thereto. Gear replevied the slag from MeGoon on the 20th of May, 1843, and the plaintiff below did not purchase it till the first of June following, and while the replevin suit was pending. Beyond controversy, then, at the time of the plaintiff’s purchase, the property was in the adverse possession of Gear, who was claiming it as his own. That being the case, the law is well settled that no other person, although the real owner, could sell it and transfer a good title. Young vs. Furguson, 1 Litt., 298; Gardner vs. Adams, 12 Wend., 297. While the property was thus held adversely', the real owner had but a right of action against the person in possession, which was not the subject of legal transfer. As well might Journey and others have transferred their right to sue McGoon or Gear for trespass to real estate, or for an assault and battery. To allow this, is deemed prejudicial to the interests of society, as tending to promote litigation. The law will not tolerate a principle which will allow a man of litigious disposition to go about the community, hunting up stale claims, or even meritorious ones, against his neighbors, either for the purpose of harrassing them, or for speculation.

Without investigating several minor errors which have been assigned, we find here an insuperable barrier to the plaintiff’s right to recover; and the judgment must, therefore, be reversed, with costs, and the cause remanded.

Judgment reversed.


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    James C. Armstrong, Sarah Armstrong, Ellen Frisby et al., plaintiffs in error, vs. Jonathan K. Cooper, administrator of Aaron Brooks, junior, deceased, defendant in error.

      Error to Peoria.

    A suit in equity, by a single creditor, to enforce the collection of a demand against an estate, while the administration of the estate is progressing and undetermined, and under which a decree was made for the sale of real estate of which the intestate died seized, and on which the creditor had not a lien, is unjustifiable.
    The demands against an estate are to be ascertained, and the proceeds of the property distributed pro rata among all the creditors entitled to participation therein, in proportion to their respective demands.
    One creditor cannot, by commencing a suit in equity—if equity will take jurisdiction, to recover a particular demand, where there are no impediments in the way of a recovery at law— obtain an advantage over other creditors.
    If equity will take jurisdiction, the proper decree, after ascertaining the indebtedness, would be, to direct that the debt should be paid in the due course of administration.
    The substance and object of the bill filed in this case, are sufficiently stated in the opinion of the Court. The decree was taken pro confesso, at the May term, 1848, of the Peoria Circuit Court. The respondents in the bill have sued out this writ of error, and assign that the decree was improperly entered; because the bill is wanting in equity; because the bill shows there was personal property, which should have been exhausted before the lands of the heirs of Bigelow, deceased, were subjected to the payment of the alleged debt; because the bill did not show that the personal property of the deceased was insufficient to pay-said debt; because the bill does not show that the complainant’s claim was ever filed before the probate justice, or presented to the administrator within the time prescribed by law, or that new assets have been discovered; and because the Court erred in decreeing against the real estate of the heirs at law of the deceased, without having an account taken of the personal property of the deceased.
    N. H. Purple, for plaintiffs in error.
    C. Ballance, for defendant in error.
   Opinion by Treat, C. J.:

This was a bill in chancery, filed against the surviving administrator and heirs at law of Lewis Bigelow, and the surety on the administration bond. It alleged that Bigelow borrowed a sum of money of Brooks, and, as security for its re-payment, executed a mortgage on real estate; which mortgage was after-wards placed in the hands of Bigelow, for the purpose of being recorded, but was suppressed by him. It prayed that the mort gage might be set up and foreclosed, and also for general relief. Subsequently, the complainant dismissed the suit as to the surety, and so amended the bill as to strike out every thing relating to the mortgage. The bill was then taken for confessed, and a decree entered, directing the sale of certain real estate, for the satisfaction of the complainant’s debt.

That decree cannot for a moment be sustained. After the amendment of the bill, the case stood as an ordinary suit in equity by a single creditor, to enforce the collection of a demand against an estate; and in which, while the administration of the estate was progressing and undetermined, a decree was made for the sale of real estate of which the intestate died seized— and on which the creditor had no lien—for the payment of the particular debt. The law will not allow this to be done. The property of an estate is not to be reached and disposed of in this way. All of the creditors are entitled to participate in it, in the proportion of their respective demands. Their demands against the estate are to be ascertained, and the proceeds of the property distributed pro rata among them. One creditor cannot, by commencing a suit in equity—if equity will take jurisdiction of a suit to recover a particular demand, where there are no impediments in the way of a recovery at law—obtain any advantage over other creditors in the payment of his debt. If equity will entertain jurisdiction in such a case—and upon this point it is not necessary now to express any opinion—the proper decree, after ascertaining the amount of the indebtedness to the complainant, would be to direct it to be paid in the due course of administration. Otherwise, the provisions of the statute, requiring the distribution of the proceeds of estates among all of the creditors, might be rendered nugatory.

The decree of the Circuit Court will be reversed, and the bill dismissed, with costs, but without prejudice.

Decree reversed.


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    Job Toles, plaintiff in error, vs. Miles Cole, defendant in error.

      Error to Kane.

    In an action of debt, tbe proper judgment is for tbe amount of the debt, to be discharged on the payment of the damages and costs.
    This cause was heard before Hugh T. Dickey, Judge, and a jury, at a special term of the Kane Circuit Court. The action was in debt. The jury, in their verdict, found for the plaintiff $281 81; and the judgment thereon was, “ that the plaintiff have judgment against the defendant for said sum of two hundred and eighty-one dollars and eighty -one cents, together with his costs herein.” The defendant below sued out this writ of error.

      Arnold & Lay, for plaintiff in error.
    I. G. Wilson, for defendant in error.
   Opinion by Treat, C. J.:

The action was debt, on a bond, in the penalty of $500, conditioned for the payment of whatever judgment might be recovered in a specified suit. Plea, non est factum. Verdict, “We, the jury, find for the plaintiff two hundred eight-one dollars and eighty-one cents; ” and judgment accordingly. The jury should have found the amount of the penalty of the bond, as the debt, and the amount of the recovery in the action referred to in the condition, as the damages; and the proper judgment thereon would have been for the amount of the debt, to he discharged on the payment of the damages and costs. The case of Austin vs. The People, ante, 452, and the authorities there cited, are decisive.

Reverse the judgment, with costs, and remand the cause for further proceedings.

Judgment reversed.


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    Charles Buckner, plaintiff in error, vs. James Thompson, defendant in error.

      Agreed case from McHenry.

    Where actions are brought before a justice of the peace on two notes, returnable at the same time, which, if consolidated, would exceed one hundred dollars, a judgment on the frst note is not a bar to a judgment on the second. Each note constitutes a separate demand.
    If a controversy exists as to the amount of a set-off, a party is not bound to give credit before the commencement of a suit, for the exact amount to which the trial may show the party entitled.
    This agreed case shows, that two actions were brought by Thompson against Buckner, on the same day, and returnable before a justice of the peace on the same day. One of the cases was called, and Buckner pleaded payment and an off-set. The justice rendered judgment for Buckner for costs. The other suit was then called; when Buckner pleaded the former suit in bar of this. Thompson prayed an appeal to the Circuit Court of McHenry, in both suits. The first suit was tried before a jury, and Buckner recovered a judgment of thirty dollars against Thompson. The present suit was then tried by the Court, Henderson, Judge, presiding, who decided, that the two notes and interest thereon, when consolidated, exceeded one hundred dollars, and that the first judgment was no bar to the second, and rendered judgment for Thompson, for the sum of sixty-five dollars, the amount of the note and interest. Buckner brings the case to this Court.
    P. W. Platt, for plaintiff in error.
    Breckenridge & Hurlbut, for defendant in error.
   Opinion by Mr. Justice Catón :

Two suits were commenced by Thompson against Buckner, before a justice of the peace, upon two notes, the amount of which, when consolidated, exceeded one hundred dollars; but it appeared upon a trial in the Circuit Court, to which they were appealed, that the defendant below had a set-off, which was applied in the first suit, to a greater amount than the note upon which that suit was brought. It was insisted that the first suit was a bar to the second; but the Circuit Court decided otherwise, and we think correctly. By sec. 35, chap. 59, R. S., it is provided, “ in all suits which shall be commenced before a justice of the peace, each party shall bring forward all his or her demands against the other, existing at the time of the commencement of the suit, which are of such a nature as to be consolidated, and which do not exceed one hundred dollars, when consolidated into one action or defence; and, on refusing or neglecting to do the same, shall forever be debarred from the privilege of suing for any such debt or demand.55 The demands in these two suits, when consolidated, did exceed one hundred dollars. Each note constituted a separate demand, upon which the holder had a right to bring a suit; and although it appeared upon trial that the other party was entitled to a set-off or cross demand, to an amount greater than one of the notes, still those notes were none the less demands against the defendant; and the statute did not require that the plaintiff should consolidate them. Where a controversy exists as to the amount of a set-off to which a party is entitled, it would he too strict a rule to say, and the statute does not require, that the plaintiff shall, at his peril, give credit before the commencement of a suit, for the exact amount to which the result of a trial may show the party was entitled.

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

Judgment affirmed.


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    David Merritt, plaintiff in error, vs. Stephen Merritt, defendant m error.

      Error. to Bureau.

      A general submission to arbitrators of all demands existing between the parties, includes every thing respecting the lands of both parties, which is the subject of variance.
    On a submission of all matters in difference, the arbitrators may consider and determine all questions affecting the civil rights of the parties.
    In the construction of an award, no intendment will be indulged to overturn it; on the contrary, every reasonable intendment will be allowed, for the purpose of sustaining it.
    An erroneous decision by arbitrators will not vitiate their award. If the arbitrators have acted in good faith, the award is conclusive upon the parties, and cannot be avoided by showing that they erred in judgment respecting the law or the facts of the ease; in the absence of fraud, misconduct or partiality, the award will be conclusive.
    If an award creates a new obligation, the party must pursue his remedy upon it; he cannot resort to his original cause of action.
    This was a proceeding in chancery, commenced by the plaintiff in error, in the Bureau Circuit Court. The cause was submitted to Catón, Justice, at the May term, 1849, upon bill, answer and depositions; whereupon, the bill was dismissed. The complainant below sued out this writ of error. All the facts necessary to a full understanding of the case, are presented in the opinion.
    O. Peters, for plaintiff in error.
    T. L. Dickey and A. Hoes, for defendant in error.
   Opinion by Treat, C. J.:

This was a bill in chancery, filed on the 23d of April, 1844, by Daniel Merritt against Stephen Merritt, to foreclose a mortgage. The answer set up in bar of a foreclosure, a submission to arbitration of all matters in difference between the parties. an award made in pursuance thereof, and an offer by the defendant to perform the conditions of the award. The complainant thereupon filed an amended bill, in which he set forth in detail various other demands against the defendant, and alleged that there was a large amount due, over and above all demands the defendant might have against him; and admitted the submission and award as stated in the answer, but charged that the arbitrators were either guilty of gross mistakes, or of fraud and corruption, and prayed that the award might be set aside. The answer denied all mistakes and misconduct on the part of the arbitrators. The cause proceeded to a hearing, on the pleadings and proofs, and resulted in a decree dismissing the bill; to reverse which the complainant prosecutes a writ of error.

The submission, bearing date the 16th of April, 1844, referred to Burton Ayres, Dixwell Lathrop, and Henry Headly, “for their award and determination, all manner of action, causes and causes of actions, bills, bonds, specialties, judgments, executions, quarrels, controversies, damages and demands whatsoever, both in law and equity, before this time had, made, brought, commenced, sued, prosecuted, done, suffered, committed or depending, by and between the said Daniel Merritt and Stephen Merritt.” Bonds to abide by and perform the award were mutually executed by the parties.

The award, dated on the 17th of April, 1844, after reciting the terms of the submission, and stating a full hearing of the proofs and allegations of the parties,'proceeded to declare, first, that Stephen Merritt should, by the first day of May, 1844, execute to Daniel Merritt a good and sufficient warrantee deed to certain tracts of land; second, that he should pay to Daniel Merritt $200—one-eighth thereof on the first of Mary, 1844, three-eighths on the first of November following, and the residue on the first of May, 1845; third, that Daniel Merrit should, by the first of May, 1844, surrender up to Stephen Merritt “ all bonds, mortgages, notes and obligations of whatsoever kind or nature now held by the said Daniel Merritt against the said Stephen Merritt; ” and, fourth, that the parties should, by the first of May, 1844, execute “mutual and general releases of all actions, causes and causes of action, suits, controversies, trespasses, debts, duties, damages, accounts, reckonings and demands whatsoever.”

The terms of the submission were broad and comprehensive, and fully authorized the arbitrators to settle and adjust all matters in difference between the parties, whether of a legal or equitable nature, and whether relating to personalty or realty. A general submission of all demands existing between the par ties, includes every thing respecting the lands of both parties, which is the subject of variance. Kyd on Awards, 145; Billing on Awards, 17. On a submission of all matters in difference, the arbitrators may consider and determine all questions affecting the civil rights of the parties. Russel’s Arbitrator, 118.

The award seems to pursue the submission, and to be a full and complete adjustment of all the transactions between the parties. It finds an indebtedness in favor of the complainant, for the satisfaction of which the defendant is required to convey to him, in fee,, certain lands, that were either embraced by the mortgage or connected with the matters in controversy, and pay a specified sum in money. The complainant is required to surrender up all evidences of indebtedness which he holds against the defendant; and for the purpose of showing a full settlement of all transactions previously existing between the parties, general releases are to be mutually executed. It is a well established rule, in the construction of awards, that no intendment will be indulged to overturn an award; but, on the contrary, every reasonable intendment will be allowed to uphold it. Karthaus vs. Ferrer, 1 Peters, 222; Butler vs. The Mayor, 1 Hill, 489; Joy vs. Simpson, 2 New Hampshire, 179; Gerrish vs. Ayres, 3 Scammon, 245. The fact that arbitrators have made an erroneous decision will not vitiate their award. If they have acted in good faith, the award is conclusive upon the parties; and neither party is permitted to avoid it, by showing that the arbitrators erred in their judgment, either respecting the law or the facts of the case. Mitchell vs. Bush, 7 Cowen, 185; Winship vs. Jewett, 1 Barbour’s C. R., 173.

The award must stand, unless there is something in the evidence calculated to impeach it. The depositions of the arbitrators and others were taken. The proof does not furnish the slightest evidence of misconduct or partiality on the part of the arbitrators. It is not shown that they committed any errors or mistakes in matters of fact or computation. On the contrary, they appear to have given the parties a patient and attentive hearing, and made up their award, upon a full understanding of the various and complicated transactions of the parties, on what they conceived to be the principles of equity and justice. All the matters in difference were investigated and considered in making up the award. Whether their decision was correct or erroneous, is not the proper subject of inquiry. The parties selected their own tribunal, for the adjustment of all their transactions, and, in the absence of all fraud, misconduct and partiality, they must abide by its decision.

The complainant objects to the award, because the defendant cannot make a good title to some fourteen acres of the land required to be conveyed. The amended bill charges, that before the award was made, the defendant sold this land to one Holley, and gave him a bond for a conveyance, which was recorded. The answer admits the execution of the bond, but alleges that the sale was made by both parties, and each bound himself to convey the land to Holley, who made full payment of the purchase money to the complainant. The case shows that the land was included in the mortgage to the complainant, and was sold to Holley by the consent of both parties—the complainant receiving the purchase money, and binding himself to make a quitclaim deed to Holley; and the defendant executing a bond for the conveyance of the land to Holley. Whatever interest, therefore, the parties may have in the land is to go to Holley. It is a matter of perfect indifference to the complainant, whether he receives a good title to this land by the conveyance or not. He can realize no benefit from the land. If he acquires any title by the conveyance, he will hold it in trust for Holley. If he has already made a conveyance, any title that he may obtain from the defendant will inure to the benefit of Holley. He performs the condition of his bond, by the execution of a quit-claim deed to Holley. He cannot be made liable, if Holley fails to procure a good title. Besides, the proof shows that this matter was correctly understood by the arbitrators, and taken into consideration by them in making the award. The complainant was not charged with the value of this parcel of the land.

The defendant, on the first of May, 1844, tendered the complainant a warranty deed for the premises described in the award, a general release, and the amount of money required to be paid on that day. It is insisted, that he cannot set up the award as a defence, because he has not fully performed, nor offered to perform, all of the conditions of the award. This position is not tenable. The law is well settled, where an award creates a new obligation, in place of the one which was in controversy, that the party must pursue his remedy on the award, and cannot resort to his original cause of action, for the award is a good bar to such action. A valid award has all the force of an adjudication, and precludes the parties from again litigating the same matters. Armstrong vs. Masten, 11 Johnston, 189; Gerrish vs. Ayers, 3 Scammon, 245; Kyd on Awards, 392.

The award is final and conclusive upon the parties, and the ■decree of the Circuit Court must be affirmed, with costs.

Decree affirmed.


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    George W. Bassett, appellant, vs. Orland Child, appellee.

      Appeal from La Salle.

    A contract between 0 and B, by which C agrees to saw ninety thousand feet of lumber for B, for five hundred dollars—one half to be paid when half the lumber should be sawed, and the other half when the residue of the lumber was sawed; and in case B should neglect to furnish logs, so as to keep the mill of 0 employed, that 0 should be allowed at the rate of fifteen hundred feet per day, upon the contract, for every day his mill should remain idle—is an entire and dependent contract, by which 0 is compelled to fully perform on his part, before he can be entitled to the lost half of the compensation.
    Upon such a contract, it was erroneous to instruct the jury that if B ceased to furnish logs at the mill of C, that C was thereby excused from a performance on his part of the whole contract, and entitled to recover for what he had sawed, at the contract price.
    C was bound, under such a contract, to remain prepared to do the sawing, until, at the rate of fifteen hundred feet per day, the residue of the sawing to be done, might be considered as done; and then he would be entitled to the full compensation stipulated.
    This action was commenced before a justice of the peace by Child against Bassett. Child there recovered a judgment for $ 13 13, and took an appeal to the Circuit Court. At the November term, 1849, of the La Salle Circuit Court, Spring, Judge, presiding, the cause was heard before a jury, and a verdict and judgment rendered for Child, for $ 50 10. Bassett prayed this appeal. The action was founded on two contracts. The first was substantially as follows : That in consideration of the sum of five hundred dollars—one half to be paid to him when he shall have sawed forty-five thousand feet of lumber, as thereinafter expressed; the balance of said five hundred dollars to be paid when Child shall have sawed an additional forty-five thousand feet, or ninety thousand in all, to be sawed, &e., &c., by the second contract; that in consideration of the sum of fifty cents-per thousand, in addition, for what remained to be sawed of the ninety thousand feet mentioned in the first contract, the said Child agreed to move his mill, and Bassett agreed to keep a constant supply of logs on hand of certain dimensions; and in case there should not be a supply of logs, said Child was to be allowed at the rate of fifteen hundred feet per day, for all delay thus occasioned, &c. The appellant assigned for error the giving the instructions asked for by the appellee, and the refusing to give the first and third instructions asked by the appellant. These instructions are given in the opinion of the Court.
    Glover & Cook, for appellant.
    E. S. Leland, for appellee.
   Opinion by Mr. Justice Catón :

By the contract between the parties, Child agreed to saw ninety thousand feet of lumber for Bassett, for five hundred dollars ; one half to be paid when one half of the lumber was sawed, and the other half after the whole should be completed; and it was further agreed, that in case Bassett should neglect to furnish logs to keep the mill running, that Child should be allowed at the rate of fifteen hundred feet per day, for the time which he should thus be compelled to remain idle.

At the instance of the plaintiff below, the Court instructed the jury, “ that if the defendant ceased to haul the logs to the plaintiff’s mill, it excuses the performance by the plaintiff of his whole contract, and he is entitled to recover for what he has sawed for the defendant, at the contract price.” This was clearly .a misconstruction of the contract, and should not have been given. The parties had expressly provided that the contingency contemplated by the instruction should not authorize Child- to abandon the work, by allowing him for the sawing of fifteen'-hundred feet for every day he should be without logs. Under this contract he had no right to complain if no more logs were furnished him; but he was bound to remain until, by the allowance of fifteen hundred feet per day, his contract for the ninety thousand feet should be completed ; when he would have been entitled to the full compensation stipulated. The first and third instructions asked for by the counsel for the defendant below, ought to have been given. The first was, “that under the contracts given in evidence in this suit, the plaintiff is not entitled to recover pay for sawing of more than forty-five thousand feet of lumber, unless he has sawed the whole amount of ninety thousand feet, or has shown that he has been released from his contract by defendant, or, some other legal excuse for not having fulfilled the contract on his part.55 And the third wa,s, u that this contract was an entire contract, and the plaintiff cannot recover unless he has performed the contract on his part, or some legal excuse for not sawing.55 These two instructions involve substantially the same proposition, and should have been given. That this was an entire and dependent contract, compelling Child to fully perform on his part, before he was entitled to any portion of the last half of the compensation, is a proposition sedear, in our opinion, that it hardly admits of argument. The action was brought upon the special agreement, which makes Child’s right to claim the last half of the compensation to depend, upon his sawing the full ninety thousand feet, as explicitly as language can express it. The instructions did not ask that the plaintiff should show that he had sawed the lumber in the manner required by the contract, hut only that he should show’ that he had sawed the stipulated quantity. IF he had sawed the inquired quantity, and this had been received by the defendant, although it had been imperfectly done, it may he that he might have recovered, making a reasonable deduction for the i-nperfeci; manner in which the work was executed. But here a total failure to complete the contract is supposed, and without any legal excuse. It was objected to the instructions, that it loft it to the jury to judge as to what would or would not constitute a reasonable or legal excuse for non-performance. But the instructions were not obnoxious to any objection on that account. For the defendant to have specified every thing which would or would not have furnished a good excuse for non-performance, he must have written a book for an instruction, which would have been equivalent to denying him the right of instruction altogether; and he certainly had a right to have that legal proposition go to the jury. Had the plaintiff supposed that he liad shown a legal excuse, he could have framed an instruc— tion based upon such supposed state of facts, and thus have put' the jury in possession of all the law as applicable to the particular case. Indeed, this was done; and upon such instruction for the plaintiff, he obtained a verdict. That instruction, however, as we have seen, was erroneous. Upon the principle involved in these two last instructions, we adhere to the rule laid down in the case of Eldridge vs. Rowe, 2 Gilm., 91.

The judgment is reversed, with costs, and the cause remanded.

Judgment reversed.


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    George Kizer and Daniel Kizer, plaintiffs in error, vs. Michael Kennedy, defendant in error.

      Brror-'to- Bureau.

    3Ielcl, "that a plea wKch avers, m answer to an action of trespass, that the landlord entered ’ on the premises on the last day of the term, and distrained the property, for rent due three-months previously, is good.
    This was an action of trespass de bonis asportatisbrought' by the plaintiffs against the defendant in error, in the Bureau-Circuit Court. The declaration alleged that the defendant, on. the 15th day of March, 1847, took and carried away goods and chattels, &c., the property of the plaintiffs, of the value of one-thousand dollars, &c.
    The defendant pleaded not guilty, and a special plea, which-is substantially set out in the opinion of the Court. To the special plea, the plaintiffs filed.a demurrer. The Court, T. L.. Dickey, Judge, overruled the demurrer, and the plaintiffs electing to stand by their demurrer, bring the cause to this Court,, and assign the overruling of the demurrer to-the special plea as. error.
    G. Peters and E. N. Powell, for plaintiffs in error-
    Glover & Cook, for defendant in error-
   Opinion by Treat, C. J.:

The overruling of a demurrer to the second plea is assigned for error. The plea pursues the form laid down in 3d Chitty’s Pleadings, 1094, and is not, we think, obnoxious to the objections taken to it. It is insisted that the plea fails to show that the distress was made during the continuance of the tenancy. It sets forth a demise of the premises, and an occupancy thereunder, from the 25th of November, 1845, to the first of March, 1847, reserving a rent of $ 400, payable on the first of December, 1846, and $ 200, in improvements, to he made on the premises ; and then avers, that “ on the day and year last aforesaid”—referring to the first of December, 1846—“ a large sum of money, to wit, the sum of three hundred and twenty-seven dollars and seventy cents of the rent aforesaid, for one year of said term, ending on the first day of March, 1847, and then last elapsed, became due and was due and payable to the said defendant, and at the said time when, &c., was in arrear and unpaid; wherefore the said defendant, in his own right, did, on the said first day, when, &c., enter upon said premises, and seize, take and distrain,” &c. The u said first day ” must be understood as referring to the first of March, 1847, immediately before stated. If so, the distress was made on the last day of the tenancy, and for the rent due, by the terms of the demise, three months previously. The plea clearly shows that the property was dis-trained subsequent to the day the rent became due, and before the determination of the tenancy.

Affirm the judgment, with costs.

Judgment affirmed.


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    Daniel Weld, appellant, vs. Ashley Hubbard, administrator of the estate of Lyman Lamb, deceased.

      .Appeal from Ogle.

    A defendant, by pleading in bar of an action, after a demurrer has been sustained to a plea in abatement, does not thereby waive his rights under the plea in abatement, but may assign for error the decision of the Court sustaining the demurrer.
    Variances between the writ and declaration may properly be pleaded in abatement.
    A declaration ought t9 pursue the writ, as to the character of the action, and the extent of the demand.
    A summons in debt is defective, if it docs not demand a particular sum as the debt.

      This was an action of debt, brought by the appellee, as administrator of Lyman Lamb, deceased, in the Ogle Circuit Court. The appellant in the Court below pleaded in abatement to the writ, craved oyer of the writ, and set it out in his plea. The grounds of the plea in abatement are stated in the opinion of the Court. The appellant filed with his plea in abatement a plea in bar, setting forth a partial failure of consideration of the note upon which the action was found. The appellee filed his demurrer to the plea in abatement ; which demurrer was sustained by the Court. • A demurrer was also sustained to the plea in bar. The appellant saying nothing further, the Court, T. L. Dickey, Judge, rendered judgment for the appellee for the sum of $ 112 26. A motion was made to dismiss the suit, because the letters of administration granted to the appellee, in the state of Massachusetts, were not properly authenticated. This motion was overruled. The defendant below prayed this appeal, and brings the cause to this Court, assigning for error that the Court erred in rendering a judgment in assumpsit, when the action was in debt; in overruling the motion to dismiss, and in sustaining the demurrer to the plea in abatement.
    E. S. Leland, for appellant.
    Glover & Cook, for appellee.
   Opinion by Treat, C. J.:

A defendant, by pleading in bar of an action, after a demurrer has been sustained to a plea in abatement, does not thereby waive his rights under the plea in abatement, but may assign for error the decision of the Court sustaining the demurrer. Delahay vs. Clement, 3 Scammon, 201. Variances between the writ and declaration are matters properly pleadable in abatement. 1 Chitty’s Pleadings, 484 5 Prince vs. Lamb, Breese, 298; Duval vs. Craig, 2 Wheaton, 45; Bank vs. Arrowsmith, 4 Halstead, 284.

In our opinion, the Court erred in sustaining the demurrer to the plea in abatement. The summons requires the defendant to answer in a plea of debt, to the damage of him, the said Ashley Hubbard, administrator of the estate of Lyman Lamb, deceased, as he says, of two hundred and forty-one dollars.” The declaration complains of the defendant “ of a plea, that he render to the said Ashley Hubhard the sum of two hundred and forty-one dollars, which he unjustly detains from him;55 and, after counting on a promissory note, made payable to the plaintiff’s intestate, concludes, “to the damage of the said plaintiff, as administrator as aforesaid, of two hundred and forty-one dollars.55 Although the action is in debt, the plaintiff, by the writ, only demands damages. By the declaration, he claims a specific sum for his debt, and a like sum in damages, for the detention thereof. Here is a manifest variance between the process and the declaration. The latter is much broader than the former. It would allow the plaintiff to recover in the aggregate of debt and damages, twice the amount demanded in the writ. The declaration ought to pursue the writ, as to the character of the action, and the extent of the demand. It should not he narrower or broader than the writ. So long as different forms of actions are recognized by the law, the rules and distinctions applicable to them should be respected and observed. If counsel will not do this, they must suffer the consequences resulting from their negligence.

It may, perhaps, be proper to remark, that the summons is defective. Instead of demanding a particular sum as the debt, which is the foundation of this form of action, it only claims damages, which are a mere incident of the debt.

The judgment of the Circuit Court must he reversed, with costs.

Judgment reversed.


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    J. Young Scammon, plaintiff in error, vs. Earl Adams et al., defendants in error.

      Error to Kendall.

    The omission to fill up an endorsement in blank, must be taken advantage of at the trial below ; it cannot be raised in this Court.
    Where a party endorses a note to secure a debt due his endorsees, with the agreement that they were to be paid out of the first avails of the note, and the balance to be paid to the endorser, and those endorsees again assign the note to an agent or attorney for collection, the first endorser has the right to receive from the maker the balance due upon the note, after the first endorsees have been paid what was due from Mm to them, and give the maker a receipt therefor; wMch will defeat an action against the maker brought by the last endorsee.

      Parol testimony may be introduced to show the understanding with which the note was endorsed, without violating the rule that a written contract cannot be contradicted by oral proof.
    This was an appeal from a justice of the peace to the Kendall Circuit Court. A judgment was rendered against the plaintiff and appellant here, before the justice of the peace, and he took the appeal. At a special term of the Circuit Court for Kendall county, held in November term, 1849, Spring, Judge, presiding, the cause was submitted to him for trial; when a judgment was rendered for the defendants. The plaintiff introduced the note, with the indorsements, in evidence. The defendants below introduced two receipts; one for $ 12, dated at Chicago, February 14th, 1845; the other for $ 30, dated 2d August, 1843 ; both signed by J. Young Scammon, attorney to Barker & Best; which were read in evidence, without objection. The defendants then offered in evidence a certain receipt, as follows : “Received, May 1st, 1844, of Burr Bristol, thirty dollars, to apply on a note, made payable to Jacob Metzker, dated about the first of August last past, given for $ 70 ; which note is now in the possession of Barker & Best, at Michigan city; transferred to the said firm by me. Jacob Metzker.”
    Burr Bristol was one of the makers of the note. To the introduction of this receipt defendant excepted; but the Court overruled the objection. The endorsement of the note by Barker & Best to Scammon was in blank. Eliakim Briggs, for the defendant, testified, that he was present ata settlement between Metzker and Barker & Best, and it was agreed by and between the parties that said Metzker was indebted to the said Barker & Best, in about the sum of $ 35, and that he delivered to them a certain promissory note for about $ 70, and indorsed the same, for which they were to receive, from the first proceeds of said note, about $35; and then said note, or the residue of the avails thereof, were to go to Jacob Metzer; and identified the note in question as the same note. The errors assigned were the admission of the testimony of Briggs, and the finding the issues in favor of the defendants. The plaintiff in the Courts below brings the cause here for review.
    S. W. Randall, for plaintiff in error.

      T. L. Dickey and W. H. L. Wallace, for defendants in error.
   Opinion by Mr. Justice Catón :

The objection taken by the defendants to the right of the plaintiff to recover on the note, because the blank indorsement by Barker & Best was not filled up on the trial, or at any other time, with the name of the plaintiff, is answered by the case of Gilham vs. The Bank, 2 Scam., 245, where it was held that the filling up of the indorsement was a mere matter of form, 'and that its omission could not be taken advantage of in this Court, unless the objection had been raised in the Court below. Although the legal title to the note may have passed to Seammon by the indorsement by Barker & Best, yet it was not insisted upon the argument that he received it other than as trustee or attorney for the purpose of collection. The two receipts produced, which were given by him for money paid on this note, and dated as late as November, 1844, and February, 1845, nearly a year after the maturity of the note, were signed by him as attorney to Barker & Best.” He then held the note but as trustee for them, to the extent of their interest. Such was the nature of the plaintiff’s right. Then let us inquire into the nature of the rights of the other parties concerned.

Briggs testified that he was present when the note was assigned by Metzker, the payee, to Barker & Best; that Metzker owed them thirty-five dollars, and that he indorsed to them this note of seventy dollars ; from the first proceeds of which they were to receive thirty-five dollars, and then the residue of the note, or the avails, was to go to Metzker or his order. Seammon received forty-two dollars on the note for Barker & Best, and the defendants introduced the receipt of Metzker for the balance.

The errors assigned are, the admission of the testimony of Briggs, and this receipt from Metzker. The solution of the former will determine the propriety of the latter; for if it was competent to show that all but thirty-five dollars of the note still belonged to Metzker, it will hardly be denied that he would have a right to receive the pay on the note, and of course to receipt for it.

The objection to the testimony of Briggs was, that it was varying a written contract by parol. But this is a misapplication of the rule. The indorser of a note, when sued upon his indorsement, may show that he received the note as agent for the indorser, and in that capacity indorsed it to his principal; and, although some have doubted whether this would constitute a defence at law, yet it is admitted on all hands that the party could get relief in equity. Chitty on Bills, 35 and 229. And I apprehend it would always be a good defence at law, while the note, was in the hands of the principal. But this identical question was directly raised and expressly decided in the case of Barker vs. Prentiss, 6 Mass., 430, where the suit was brought by the second indorsee of a bill against the maker, and upon the the general issue the defendant was allowed to show that the drawees had indorsed it to the first indorsees, as their agents, for collection, who, for the same purpose, had indorsed it to the plaintiff, and that the first indorser had directed the defendant not to pay the bill to the plaintiff; and this was held to be a good defence. As in this case, the objection was there taken that ££ parol evidence ought not to have been admitted to control or explain the legal effect of these indorsements.” After answering the objection, Chief Justice Parsons concludes this part of his opinion, by saying: “ We are, therefore, satisfied, notwithstanding the terms of the indorsement, that it was regular to prove that the plaintiff, the indorsee, received the bill, not as assignee, but as an agent to collect it for the payees.” And we are satisfied that it was competent in this case to show the nature of the assignment of this note by Metzker to Barker & Best, and by them to Scammon; from which it appears that the balance of the note, after paying the thirty-five dollars due from Metzker to Barker & Best, belonged to Metzker, and that he had a right to receive the residue. The payment of this to him satisfied the note as much as if it had been returned to him and the indorsements erased; which he might have done, as if he had received the note again by a reindorsement. The receipt of Metzker was properly received in evidence; and the judgment of the Circuit Court must be affirmed, with costs.

Judgment affirmed.