author: Trumbull, J.

text:
    William R. McKinley, Plaintiff in Error, v. Joseph Watkins, Defendant in Error.
    ERROR TO LOGAN.
    An instruction which assumes that a party would be bound by a promise not assented to by the person to whom it is made, is erroneous.
    A promise is void for want of mutuality, unless the person to whom it is made agrees on his part not to do the act which formed the consideration of it.
    If a party threatens to sue, honestly supposing he has a good cause of action, it will uphold a contract fairly entered into in order to avoid the suit. Otherwise, if the claim is a mere pretence to extort money.
    The compromise of a doubtful right is a sufficient consideration for a promise..
    This action was commenced by Watkins against McKinley before a justice of the peace. Watkins failed to recover on the trial before the justice, and took an appeal to the Circuit Court. At the April term, 1851, of the Logan Circuit Court, the cause was tried before Davis, Justice, and a jury, and resulted in a verdict and judgment for Watkins, and McKinley brought the cause to this court by writ of error.
    Watkins and McKinley had traded horses in 1845; after-wards they had some dispute about the trade, and Watkins threatened to sue unless McKinley would give him a horse, or the worth of the horse which McKinley had got from Watkins, the horse which Watldns had received in exchange having died. McKinley promised that, if Watldns would not sue, he would give him fifty dollars, or a horse worth that sum. Upon this promise Watldns brought his action against McKinley.
    W. H. Herndon, for plaintiff in error.
    In order to maintain an action for damages sustained in the exchange of property, or in an action to recover back the money paid, or to plead the want of consideration, there must be a warranty, fraud, or false representations. 1 Scam. 22; 4 Gilm. 73; 2 Kent, 485; 3 Adol. & Ellis, N. S. 234.
    Every promise must be founded upon a good or a valuable consideration. A gratuitous promise is not good. 2 Kent, 463, 465; Story on Contracts, 429, 453; Chitty on Contracts, 29.
    A moral consideration, if it had not its foundation in a legal consideration, is not sufficient to support the promise. 24 Wend. 97; Story on Contracts, § 465; 19 Pick. 429; 3 Pick. 83.
    In the case now under consideration, there was neither fraud, warranty, nor false representations, nor was the promise a legal nor even a moral one, and therefore no action can be maintained. 8 N. H. 154; 52 Eng. Com. Law R. 563; Smith on Contracts, 86, 87; 6 Monroe, 660; 11 S. & Marsh. 431 ; 3 Adol. & Ellis, N. S. 234; 1 Story on Contracts, § 436; 5 Barb. 556; 19 Pick. 387 to 429; 8 Blackf. 415; 52 Eng. Com. Law, 548; 2 Barb. 420; Story on Contracts, § 436.
    T. L. Harris, for defendant in error.
    The proof is positive that Watkins claimed $50 because McKinley had put an unsound horse upon him. McKinley never objected that the claim was unjust. He promised to pay if Watkins would not sue him for damages. This suit was upon the promise. The consideration of the promise was “forbearance to sue.” This is a good consideration. Rippon v. Norton, Cro. Eliz. 881; Matun v. West, Cro. Eliz, 665; Lemaster v. Buckhurt, 2 Bibb, 448; Bank of Musking, v. Carpenter’s Adm’rs, Wright, 729, 660; Sidnell v. Evans, 1 Penn. 383.
    Even the compromise of a doubtful right has always been held a good consideration for a promise. Chitty on Contracts, 35; 6 Munf. 406; 14 Conn. 12; S. C. 2 Rand. 442; 5 Watts, 259; 7 Ad. & El. 19; 1 Williams’s Saund. 210, n.; 5 Barn. & Aid. 117; 8 Taunt. 354; Logan v. Matthews, 6 Barr, 420; Perkins v. Gray, 3 Serg. & Rawle, 331; McCoy v. Hutchinson, 8 Watts & Serg. 66; Cavode v. McKelvey, Add. 56; Oheson v. Barclay, 2 Pa. R. 531; Brown v. Sloan, 6 Watts, 423; Union Bank v. Geary, 5 Pet. 99.
    The promise is distinctly proved. If the defendant relied on his never being or having been liable on the original trade, he should have distinctly proved it. The reasons for this are many; as the death of witnesses to the original trade or contract, or their removal. Lapse of time might bar. The authorities on this point are clear. Slack v. Moss, 1 Dud. (Geo.) Rep.; Gould v. Armstrong, 2 Hall, 269; and digest of same case, 1 Met. & Per. 101.
    But there are cases to show that proof of the non-liability in the original action cannot be intended. Taylor v. Patrick, 1 Bibb, 168; Ormond v. Fitzroy, 3 P. Wms. 130, 131, and n. (a); Mills’s Heirs v. Lee, 6 Monroe, 97; Barlow v. Ocean Ins. Co. 4 Met. 270.
    The court will not grant a new trial when substantial justice has been done. Greenup v. Stoker, 3 Gilm. 202; Lee v. Hughes, 3 Scam. 18; Gillett et al. v. Sweat et al. 1 Gilm. 490; and other cases.
   Trumbull, J.

This was an action originally commenced before a justice of the peace, and taken by appeal to the Circuit Court, where the plaintiff had judgment for fifty dollars and costs.

The evidence showed that the parties had traded horses; that, a month or two after the trade, the horse which plaintiff got, died, and that he was unsound when the trade took place. There was no evidence of any false representations, or warranty on the part of the defendant in making the trade. After the death of the horse the plaintiff informed the defendant of the fact, and alleged that he was diseased at the time of the trade, whereupon the defendant promised to pay the plaintiff fifty dollars, or let him have a fifty-dollar horse, if he would not sue.

This action was brought to recover the fifty dollars. On the trial, the Circuit Court instructed the jury as follows:

“ If the jury believe from the evidence that there was a horse-trade between Watkins and McKinley, out of which a difficulty had .grown, and that Watkins was threatening to sue McKinley, and not deceiving him by any misrepresentations, and that McKinley, rather than be sued, promised Watkins .that he would pay him fifty dollars, then said promise is binding; and this regardless of the question as to whether McKinley would or would not have been liable in the suit which Watkins was threatening to bring against him.”

The only question in the case is as to the propriety of this instruction, and in one point of view it is clearly erroneous. It assumes that the defendant would be bound by his promise, whether assentra to by the plaintiff or not. Unless the plaintiff were bound on his part not to do the act which formed the consideration of the promise of the defendant, the agreement was void for want of mutuality. The promise of defendant to pay fifty dollars if plaintiff would not sue him was incomplete till accepted by the plaintiff. Chitty on Contracts, 13.

A mere offer, not assented to, constitutes no contract; for there must be not only a proposal, but an acceptance thereof. Story on Contracts, § 377, 378.

The instruction in other respects is very nearly, if not quite, correct. It assumes that, in order to support the promise, there must have been a horse-trade between the parties, out of which a difficulty had arisen, and that the plaintiff was threatening to sue the defendant, and not deceiving him by any misrepresentations. If by this is to be understood, that the plaintiff must in good faith have supposed that he had a good cause of action against the defendant, growing out of the horse-trade, the instruction is strictly proper. It is immaterial whether the plaintiff could have recovered in such action or not. If he honestly supposed that he had a good cause of action, the compromise of such right was a sufficient consideration to uphold a contract fairly entered into between the parties, irrespective of the question as to mSo was in the right. It has often been decided that the compromise of a doubtful right is a sufficient consideration for a promise; and it is immaterial on whose side the right ultimately turns out to be, as it must always be on one side or the other, because there can be but one good right to the same thing. Taylor v. Patrick, 1 Bibb, 168; Russell v. Cook, 3 Hill, 504; Moore v. Fitzwater, 2 Rand. 442; O’Keson v. Barclay, 2 Penn. Rep. 531.

If the plaintiff was threatening to sue on a claim which he knew was wholly unfounded, and which he was setting up as a mere pretence to extort money from the defendant, a contract founded on a promise not to sue in such a case would be utterly void. In order to support the promise there must be such a claim as to lay a reasonable ground for the defendant’s making the promise, and then it is immaterial on which side the right may ultimately prove to be. Edwards v. Baugh, 11 Mees. & Wels. Rep. 641; Perkins v. Gay, 3 Serg. & Rawle, 331.

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

Judgment reversed.

Treat, C. J., dissented.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Noah Cook, Plaintiff in Error, v. Asel Hoyt, Defendant in Error.
    ERROR TO HANCOCK.
    A party who has not been guilty of negligence, by omitting to take an appeal from the judgment of a justice of the peace in proper time, is entitled to take the cause to the Circuit Court, by certiorari.
    Negligence is not attributable to a defendant who could not take an appeal in time, without omitting a paramount duty to others.

      Cook filed his petition in the Hancock Circuit Court, representing that, on the third day of June, A. D. 1848, Hoyt recovered a judgment against him before John Banks, a justice of the peace, for $70 and costs. That said judgment was erroneous and unjust, setting forth the circumstances connected with the suit, which made its injustice apparent. That he was present at the trial, and defended as well as he might, and was not guilty of any negligence in the premises. That immediately after the rendition of the judgment against him, he applied to the justice for a transcript of his docket, &c., in order to take the case to the Circuit Court by appeal. That the justice refused to give him a transcript, &c. That on the 12th day of June, he called upon the justice with an appeal-bond, signed and conditioned according to law, with a responsible surety, and left the bond at the house of the justice, who was then absent. That the justice, contrary to the expectations of Cook, did not approve the bond, but after the expiration of twenty days, issued an execution upon the judgment. That Cook did not and could not make other and further efforts to appeal from said judgment, because he was a practising physician, living fifteen miles distant from the county-seat, and eighteen miles distant from the office of the justice; that during said twenty days, he was necessarily engaged in attending to two patients dangerously ill, one of whom subsequently died of his illness ; that he was attending upon a patient in the State of Iowa, four days of the twenty next succeeding the judgment, during which four days, the twenty days allowed for the appeal expired. The petition concluded with a prayer for a certiorari, which was granted.
    On the return of the certiorari, Hoyt moved to have it dismissed, because the petition did not set forth sufficient reasons. The Circuit Court, at April term, 1849, Minshall, Judge, presiding, sustained the motion to dismiss, and gave judgment against Cook for costs.
    The error assigned, is that the motion to dismiss the certiorari was improperly sustained.
    Browning & Bushnell, for plaintiff in error.

      Warren & Edmonds, for defendant in error.
   Treat, C. J.

The petition shows that the judgment was unjust, and that it was not the result of negligence on the part of the plaintiff in error. The only question in the case, is, whether he made use of due diligence to take an appeal in the ordinary way. On this point, he states that he offered to take an appeal when the judgment was rendered, and for that purpose demanded a transcript of the judgment, which the justice refused to make. At the end of nine days, he went again to the office of the justice, eighteen miles distant from his residence, with an appeal-bond executed by a responsible surety, for the purpose of perfecting an appeal; but the justice was absent, and he left the bond, under.the impression that the justice would approve the same. He also states that he could make no further effort to procure an appeal within the twenty days, because of his necessary attendance, as a physician, upon patients dangerously ill. • We think he was entitled to a certiorari. He cannot be justly charged with negligence, under the circumstances detailed in the petition. He made two attempts to take an appeal; one on the day the judgment was entered, which was frustrated by the refusal of the justice; the other nine days afterwards, which was defeated by the absence of the justice. From that time until the expiration of the twenty days, he could make no other effort to "obtain an appeal, without neglecting his duty to his patients. His peculiar situation may properly be' taken into consideration, in determining the question of diligence. What may constitute diligence in one person, may not" be diligence ' in another differently situated. If the plaintiff could have left his patients without a violation of his professional duties, he ought to have made further efforts to perfect an appeal. .But he was not bound to put their lives in jeopardy by so doing. Common humanity would forbid such a course. This case is clearly distinguishable from White v. Frye, 2 Gilm. 65. There, the party resided in the precinct of the justice, and the fact that he called twice at the office of the justice to take an appeal,"was held not to be sufficient diligence. But it was strongly intimated, that it would be otherwise in a case like the present. The Court said: There is no doubt that, under certain circumstances, the attention shown in this particular case, might be held to have been sufficient. If, for instance, the petitioner could have shown that he resided far from town, and that he had no means of readily communicating with the justice, or that, by some pressing business, he was prevented from repeating his calls.”

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    Daniel McAvoy, Plaintiff in Error, v. William H. Long et al., Defendants in Error.
    ERROR TO MORGAN.
    Where the parties contracted for the excavation of a ditch, and agreed by the contract that a particular person should ascertain the quantity excavated, his measurement is conclusive.
    Unless a contract contains technical terms known and understood only by scientific persons, the court will construe the contract without the aid of witnesses to explain its meaning.
    A person selected by a contract to measure work, may refer to the contract to ascertain how he should make the measurement; but his construction of the manner of measuring the work would not be conclusive upon the parties, though his estimate, if fairly made in the manner pointed out by the contract, would conclude them.
    This case was submitted upon the following agreed state of facts.
    Be it remembered, that the plaintiff, (McAvoy,) declared against the defendants in assumpsit, on the following contract of the parties, to wit:
    Meredosia, El., 6th November, 1850.
    We, the undersigned, committee for digging ditch near Meredosia, to drain Blinois bottom, do agree to pay Mr. Daniel McAvoy the sum of 12| cents per cubic yard of earth, measuring excavation in following manner, from the centre to the one side, then to the other from centre also, thus: ■ the above measurement to be made by David L. Hodges; also, we agree to pay, every two weeks, as the work progresses, retaining twenty-five per centum till the work is finished. The ditch, being more or less than two miles, Mr. McAvoy has exclusive right to the whole length of it. The above ditch to be made according to the directions of W. H. Long, Gideon Sibert, and J. C. Thompson ; and to be commenced forthwith, and prosecuted to completion as soon as possible.
    Daniel McAvoy, W. H. Long, J. C. Thompson, Gideon Sibeet.
    And the defendants pleaded the general issue, with notice of set-off, by consent of parties. The cause was submitted to the Judge, (Woodson presiding,) to try matters of fact and law. It is agreed that the plaintiff, under the contract, caused to be dug a ditch, 652 rods long, six feet wide at the top, three feet wide at the bottom, and of the average depth of 20 1-10 inches. As the work progressed, from time to time, and before it was measured, the defendants paid the plaintiff on account of it, $406.95. The plaintiff then produced as a witness, and proved by the said David L. Hodges, named in said contract, that, according to his interpretation and understanding of the same, he had measured said work, and that there were contained In it 3,003 1-4 cubic yards. The plaintiff then produced as a witness, and offered to prove by Napoleon Koscialowskie, an expert engineer, that, according to the terms of the contract sued on, and the length and depth of the ditch in said contract mentioned, there were 6,125 yards of excavation in said ditch, which was objected to by the defendants, and the objection was sustained by the court, and the offered evidence was rejected. The court decided that, from the terms of the contract, the parties had referred the whole matter to David L. Hodges, as to the rule to be adopted for the measurement of the ditch, and as to the construction of the contract touching the mode of measurement ; and that the plaintiff ought not to be permitted by other witnesses, experts or others, to show or prove that the rule of construction adopted by said Hodges, or that the measurement made by him was not according to a proper construction of said contract, and that the measurement made by him was not the correct measurement of the work, according to a proper construction of said contract; but the parties were bound by his rule of measurement, and by his construction of the contract. To which opinion of the court the plaintiff at the time excepted; this being all the evidence given and offered in the case, the Judge rendered a pro formé judgment against the plaintiff, and in favor of the defendants, for $31.55, and the costs of this agreed case; from this judgment McAvoy appealed. If there was no error in the decision of the court below, then the judgment should be affirmed; if there was error, then the case was to be remanded to the Circuit Court of Morgan county, for trial.
    M. McConnel, for plaintiff in error.
    This man, Hodges, was regarded by the Circuit Court as an arbitrator or judge, chosen by the parties to decide this matter, and his decision or measurement must be final, ' and could not be revoked by either party; and defendants rely upon the case of Ballance v. Underhill, 3 Scam. 453. See Frink et al. v. Ryan, Id. 324, 328.
    Hodges was not an umpire ; he was a mere agent of the parties ; not to do a judicial act, but perform a corporeal service — to measure the ditch, and report its dimensions, according to a rule given in the contract.
    A submission to an umpire can only be of some matter in dispute between the parties, at the time the submission was made. When this reference was made to Hodges, there was no matter in dispute between the parties. Caldwell on Arbitration, p. 16; Story on Contracts, § 987.

      Query. If Hodges is an umpire or arbitrator, and this matter is referred to him, and can be decided by no one else, and one of the parties die, and the reference is thereby revoked, who then must measure the ditch ? Cald. Arbit. p. 30.
    Every contract should be so interpreted as to arrive, as near as possible, at the intention of the parties contracting; and when the parties use technical language, commonly used in any particular science, or any plans, figures, or signs, to which a meaning in science is affixed, persons learned in that science are to be called to explain their meaning, whereby the court or jury can arrive (in the interpretation of the contract) at the intention of the parties.
    Brown & Yates, for defendants in error.
    To establish the point, that the measurement of the ditch by Hodges was conclusive, and that neither party will be permitted to prove that the arbitrator decided wrong, either as to the facts or law of the case, defendant relies upon the following authorities : Winship v. Jewet, 1 Barb. Ch. Rep. 173 ; Jackson v. Ambler, 14 Johns. R. 105; Id. 7 Cowp. R. 185; Speer v. McChisney, 2 Watts & S. Rep. 233; Ballance v. Underhill, 3 Scam. 459; Watson, Arbit. 5, 6; 17 Johns. R. 409, 431.
    The construction of the contract contended for by plaintiff, is hard, oppressive, unreasonable, and improbable, and should not be adopted. Royalton v. R. & W. Turnpike Co. 14 Verm. R. 311.
   Trumbull, J.

By the terms of the contract between the parties, David L. Hodges was appointed to measure the number of cubic yards of excavation in the ditch. He was, by mutual consent, appointed to perform that service, and the court cannot make for the parties a contract different from that which they have made for themselves. In the absence of fraud, his measurement of the quantity of work done under the contract is conclusive upon the parties, and neither is permitted to show it to be erroneous. Canal Trustees v. Lynch, 5 Gilm. 526.

The Circuit Court therefore decided correctly in rejecting the evidence of the engineer Koscialowskie, of the quantity of work done according to his measurement of the same.

The evidence offered to show what the proper construction of the contract was, was also properly rejected. It was for the court and not for engineers to construe the contract.

Had the contract contained technical terms, known and understood only by scientific engineers, it might have been proper to have received the evidence of those skilled in the science of engineering, to enable the court to determine its meaning. There are, however, no such terms in this contract. McAvoy was to be paid twelve and one half cents per cubic yard of excavation; and the contract then specifies the manner of measuring the work, which, however, is not different from what it would have been, had the contract been silent upon that subject.

The character contained in the contract has no meaning, technical or otherwise ; and the mode provided for ascertaining the number of cubic yards of excavation in the ditch, does not differ from that which any competent engineer would have adopted, if left to measure the work in his own way.

It is clear that Hodges measured the work correctly, and according to his measurement, ‘McAvoy gets pay for every yard of earth actually excavated, while, if Koseialowskie’s mode of measuring, and his construction of the contract had been adopted, McAvoy would have been entitled to claim for more than double the amount of work actually done.

The injustice of such a construction is so manifest, that no court, except such was clearly the contract of the parties, would ever adopt it.

That part of the opinion of the circuit judge, which held that the parties, by their contract, had referred to Hodges the construction of the contract touching the mode of measurement, was, we think, erroneous ; but, as the agreed case gives the dimensions of the ditch, and it appears, by computation, that he adopted the proper mode of measurement, we see no reason for disturbing the judgment of the court.

Hodges, in determining the amount of work done, necessarily had to refer to the contract to see how he was to make the measurement; but his construction of the manner of measuring the work would not be conclusive upon the parties, though his estimate of the quantity of work done, when fairly made in accordance with the manner pointed out in the contract, would conclude them. Judgment affirmed.


text:
    Hankerson Watkins, Appellant, v. Jonas R. Gale, Appellee.
    APPEAL EROM MASON.
    To subject a party to the penalty for cutting timber provided in Rev. Stat. ch. 104, he must have committed the wrong knowingly and wilfully, or under such circumstances as show him guilty of criminal negligence; the statute does not extend to a person who fells trees upon the land of another, under a mistaken belief that his boundaries extended far enough to include the trees in controversy.
    Where one cuts timber, knowing it not to be upon his own land, or upon land which he had a license to cut from, the law presumes that the trespass was wilful.
    To make a trespass under the statute wilful, it is not necessary that the defendant should know that the land belonged to the plaintiff.
    The case of Whitecraft v. Vandever, 12 Ill. R. 235, reaffirmed.
    This was an action of debt in recover penalties for cutting timber, under Rev. Stat. ch. 1Q4', and was tried in the Circuit Court of Mason, at the May term thereof, 1851, before Mins hall, Judge, and a jury.
    It appeared, upon the trial, that the plaintiff entered the S. W. S. E. 32, 22 N., 5 W., of the third principal meridian, on the 24th day of September, 1849, upon which the trees in controversy were cut, and that one Henry R. Green entered the east half of the same quarter, on the 23d day of January, 1841.
    The subjoined diagram (see next page) will show the true situation of these two parcels of land.
    It further appeared that Green had the west line of his land run out and established by the County Surveyor of Tazewell county, before he made his entry; that this was the only established line, prior to the trespass complained of, and was notorious in the neighborhood. It further appeared, that the entry of Green was in trust for the defendant, and several other persons, and that the defendant and his servants were acting under a license from Green. It further appeared, that all of the cuttings were east of the line established by the County Surveyor of Tazewell above mentioned, and if that was the true boundary between plaintiff’s and Green’s entries, the plaintiff had no cause of action.
    It further appeared upon the trial, that three different surveys were made after the commission of the alleged trespass, and the true line established farther east than the line run by the County Surveyor of Tazewell, at the instance of Green and his associates prior to his entry; and that several of the trees in controversy were cut west of the true line, and upon the land of the plaintiff.
    It further appeared, that while the defendant and his servants were engaged in cutting, an agent of the plaintiff notified the defendant that the plaintiff had entered the S. W., S. E. 32, and requested him to desist until the line should be legally established by a survey, to which the defendant replied, that “ he did not believe that the land was entered at all; ” that the agent pointed out where he supposed the line would run; that defendant said he would go further east; that the next day defendant hauled off some of the timber he had felled.
    The foregoing is the substance of all the evidence upon the trial in the court below. The plaintiff then asked the court to instruct the jury,

      First. If they believe, from the evidence, that the defendant cut or directed his servants to cut trees on the plaintiff’s land, knowing the land to be the land of the plaintiff, without the leave of the plaintiffs, the law presumes that such cutting was done wilfully ; and it is for the defendant to prove that it was not done wilfully, or was done by mistake, if he wishes to justify or excuse such cutting.

      Second. If they believe, from the evidence, that the defendant cut trees on the plaintiff’s land, knowing the same to be on the land of plaintiffs, without his leave, they will find for the plaintiff, unless they further believe that said trees were cut by mistake, or cut by the defendant in good faith, believing he was' on his own claim or under the license from Green.

      Third. If they believe, from the evidence, that the defendant was cutting timber on the plaintiff’s land, without his leave, and made no claim that he was there by mistake or accident, they will find for the plaintiff.

      Fourth. If they believe., from the evidence, that the defendant acknowledged that the land on which he cut the timber was not entered; that acknowledgment is binding on him, and if they believe, from the evidence, that he did cut the trees, and that they were cut on plaintiff’s land, then said plaintiff is entitled to recover for the trees so cut.

      Fifth. If they believe, from the evidence, that the defendant cut the trees in controversy, knowing the same not to be on his own land, or upon land that he had license to cut timber from, that the law presumed wilfulness, and it is not necessary for the defendant to know that the land belonged to the plaintiff.
    The court gave instructions 1 and 2, and refused those numbered 3, 4, and 5, to which refusal plaintiff excepted.
    On the part of the defendant, the Circuit Court instructed the jury as follows : —

      First. If the jury believe, from the evidence, that the survey of Prettyman, Surveyor of Tazewell county, was made in good faith, and that the defendant had no reason to believe that said survey was incorrect, and that the line established by said Prettyman was the only established line, until after the trespasses complained of were committed, and that the defendant, believing the said line the then boundary between his land and the land of plaintiff cut the trees in controversy east of the line established by Prettyman, they will find for the defendant, although they may be satisfied, from the evidence, that the true line ran east of the place where the trees were cut.

      Second. That in order to render the defendant liable to the penalty for cutting the trees in controversy, the jury must be satisfied, from the evidence, that the defendant wilfully cut the trees upon the land of the plaintiff, and not under a mistake of fact as to where the line between the plaintiff and defendant actually run.

      Third. That the mere facts that the defendant, after notice that his boundary was disputed, cut or hauled off some of the timber, is not evidence that the conduct of the defendant was wilful in cutting the trees, if the jury believe, from the evidence, that the defendant believed, at the time, he was cutting upon his own land or on the land of Green, with Green’s consent.
    To these instructions the plaintiff excepted. The jury found their verdict for the defendant, and plaintiff moved for a new trial; because the verdict was contrary to law, against the evidence, does not conform to the instructions given on behalf of plaintiff; because the court refused plaintiff’s instructions 3,4, and 5, and gave defendant’s instructions. The motion was overruled, and plaintiff excepted, and a bill was signed and sealed by the judge, embracing all of the foregoing facts, rulings, &c.
    The plaintiff" brings the cause into this court by appeal, and assigns for error, that the court below refused proper, and gave improper instructions, and overruled the plaintiff’s motion for a new trial.
    H. M. Wead, for appellant,
    Cited in support of the errors asssigned, Coleman v. Roberts, 1 Mis. R. 97; Roberds v. Wolfe, 1 Dana, R. 155; Benham v. Cary, 11 Wend. R. 83; Gaines v. Buford, 1 Dana, 502; Wardell v. Hughes, 3 Wend. R. 418; 2 Webster’s Dict. Title « Wilful.”
    M. McConnell and R. S. Blackwell, for appellee,
    Relied upon Cushing v. Dill, 3 Ill. R. 460; Whitecraft v.
      Vandever, 12 Ill. R. 235; Russell v. Irby, 13 Ala. R. 131; Batchelder v. Kelly, 10 N. H. R. 436.
   Treat, C. J.

This was an action of debt to recover the penalties given by the statute for cutting timber without the leave of the owner of the land. On the trial, the evidence tended to show that the defendant cut several trees on land belonging to the plaintiff, and that he was aware at the time that the land was not his own. The court refused to give an instruction asked by the plaintiff in these words: “ That if the jury believe, from the evidence, that the defendant cut the trees in controversy, knowing the same not to be on his own land, or upon land that he had license to cut timber from, then the law presumes wilfulness, and it is not necessary for the defendant to know that the land belonged to the plaintiff.”

The statute, under which this action was brought, received a construction in the case of Whitecraft v. Vandever, 12 Ill. 235, with which we are entirely content. It was there said: “ The object of the statute is to furnish an additional remedy to the owner of the land, and also to punish the wrongdoer. , To subject a party to such punishment, he must have committed the wrong knowingly and wilfully, or under such circumstances as show him guilty of criminal negligence. It could never have been the intention of the legislature to impose a penalty upon a person, who, supposing in good faith that he was cutting upon his own land, after having taken reasonable pains to ascertain its boundaries, should, inadvertently and by mistake, cut trees upon the land of another. For an injury committed under such circumstances, the party is left to his common-law remedy by action of trespass.” Since that decision was made, our attention has been directed to the case of Russell v. Irby, 13 Ala. 131, in which the same construction was put upon a similar statute. The court there remarked: We think it entirely clear, that the cutting of trees upon another’s land, under the impression that the party had not gone beyond his own boundaries, was not within the contemplation of the legislature. Moral justice would forbid any extraordinary infliction in such a case, and the damages recovered at common law would afford an adequate reparation.”

The instruction was applicable to the evidence, and conformable to the construction given to the statute. It is immaterial whether the defendant really intended to cut timber from the plaintiff’s land. He may have incurred the penalty, although he never designed to injure the plaintiff. It is enough to sustain the action, that he cut the trees on the plaintiff’s land, and that he knew at the time, or had good reason to know, that the land was not his own. The fact that he believed the land to belong to some other person than the plaintiff, and from whom he had no license to cut timber, would not relieve him from responsibility to the plaintiff. In such case, the act would be both wrongful and wilful. But if he supposed in good faith that he was cutting on his own land, and was not culpably ignorant in not ascertaining its true boundaries, he is not liable for the penalties imposed by the statute, and the plaintiff must resort to his action at common law. The refusal of the court to give the instruction may have operated to the prejudice of the plaintiff. It left the inference on the minds of the jury, which the instructions given them did not repel, that the plaintiff was not entitled to recover unless it appeared, from the evidence, that the defendant knew he was cutting the trees from the land of the plaintiff.

The judgment is reversed, and the cause remanded.

Jud crTiimir nvzrs-í¿¿.


author: Caton, J.

text:
    John Propst, sole Executor of Nicholas Propst, deceased, Plaintiff in Error, v. Alexander Meadows, Defendant in Error.
    ERROR TO MENARD.
    A claim against the estate of a decedent, should he presented, either on the notice of his representative, or of the claimant, and if not allowed at the time fixed for hearing, should be continued to a day certain, or withdrawn, so that the claim shall not be allowed against the estate without giving the executor or administrator an opportunity to appear and contest.
    If a claim shall he allowed against an estate, without notice to the executor or administrator, the estate will not be concluded by it.
    The County Court is a court of record, and has a general jurisdiction over a particular class of cases; its jurisdiction is limited hut not inferior.

      A court of chancery is competent to grant relief against judgments of the County Court, obtained by fraud or accident, in cases where the courts of law cannot do so.
    This was a proceeding in chancery, by bill and injunction, brought by John Propst, as sole executor of Nicholas Propst, deceased, against Alexander Meadows. The bill alleges, that at a term of the County Court, in and for the county of Menard, held on the 19th of March, 1850, it was, among other things, ordered as follows:
    “ Estate of Nicholas Propst, deceased.

    “ This day was presented a note dated September 9th, 1833, drawn in favor of deceased, for one hundred dollars, with twelve per cent, interest from date, which said note was assigned by said deceased, to Alexander Meadows, on the 10th day of April, 1840, as appears from the depositions of James Meadows and Benjamin Frank, which said deposition is now on file in this office; said note, principal and interest, up to this date, amounts to the sum of $298.33.
    “ It is therefore ordered, that said claim be considered duly proved, and that the same be allowed.”
    The bill then sets out what is alleged to be a true copy of the note above referred to, as follows :
    “ Athens, Sept. 9th, 1833.
    “ Twelve months after date, for value received, I promise to pay to Nicholas Propst, or order, one hundred dollars, bearing twelve per cent, interest from date, until paid.
    “ Attest, John Shepherd. (Signed,) Samuel Sackett.”
    On said note are the following indorsements,—
    “ I assign the within note to Alexander Meadows, for value received of him. April 10th, 1840.”
    “ I assign to James Meadows, for value received .of him.”
    The bill alleges that said indorsements have not the signature of the said deceased in any manner made; that no consideration was ever made or promised by said Meadows, for said note, either in whole or part; that said Meadows received said note only for the purpose of collection, or as a gift to him, as the son-in-law of deceased; that for the above purposes, or one of them, the note was delivered to said Meadows, nothing being paid or promised therefor.

      With the bill, as exhibits, were filed the depositions of James Meadows and Benjamin Frank, referred to in the order of the County Court, and which, it is alleged, were the only proofs before the County Court on the trial, and which depositions, the bill alleges, show that Meadows received said note only for collection.
    The bill also alleges, that Nicholas Propst died in the month of February, 1849; that from the time' of the alleged assignment to the day of his death, a period of nine years, the deceased and Meadows resided in the county of Menard; that the means of said Nicholas Propst to pay this or any other claim against him, was all that time ample; that during said nine years, Meadows never presented said claim to deceased for payment, or pretended to have any claim arising out of said assignment; that he never brought suit against deceased, although his means were ample.
    The bill alleges, that Meadows now fraudulently presents and insists upon this pretended claim, supposing, that since the death of said Nicholas Propst, the fraud of the transaction cannot be detected; that said note was first presented to the judge of probate of Menard county, on the 13th of July, 1849; that complainant objected to the allowance of the claim of said Meadows, under the note; and complainant believed that said note had been withdrawn, and the claim abandoned by said Meadows; that he was not apprised that said claim had remained on the files of the judge of probate for litigation, until the order above recited had been rendered against him by the County Court; that he was always ready to contest the claim with Meadows, and if he had been apprised of its being filed against the said estate, he would have met it successfully, and procured its rejection.
    It is further alleged, that in December, 1849, a notice was served on complainant, to take depositions by virtue of a commission to be sued out of the office of the clerk of the Circuit Court of Menard county, said depositions to be read as testimony on the trial of a certain suit at law, now pending and undetermined in the Probate Court, &c.; that complainant had not been served with process or notice of the pendency of any suit; and not having been apprised of the filing of any note or claim, and having so informed counsel with whom he consulted, was advised not to regard the notice to take depositions, which advice he followed. Complainant avers, that at the time when said judgment was entered up against him, he had no notice, knowledge, or belief that a suit was then pending against him in the said court, as executor aforesaid, in favor of said Meadows; that he was not informed, and did not know, of the rendition of said order by said County Court, until long after it had been so rendered; that as soon as he heard of it he procured sureties, and applied to the county judge for an appeal, but' was informed that twenty days had expired, and that an appeal could not be had; that soon afterwards, to wit, on the 13th day of April, 1850, complainant applied to the county judge for a certiorari, and presented his written application, subscribed and sworn to, together with a sufficient bond, as required by the statute, a copy being filed with the bill; that at the time his petition was drawn up, he knew of no practising lawyer in the county of Menard, except Mr. Macon, who was the attorney of Meadows; he, therefore, could apply to none to aid in drawing up his petition ; being unacquainted with such business himself, he applied to a friend, who drew up his petition; and that complainant supposed at the time it contained sufficient allegations ; that the county judge granted the writ of certiorari which was issued; that in the Menard Circuit Court, the certiorari was dismissed upon the ground that material averments were wanting in the petition.
    The bill prays for an injunction restraining the collection of judgment until the hearing of the bill, then that it be made perpetual.
    The injunction was allowed upon the bill.
    Meadows answered, and admits statements to be true in the bill as to time of the rendition of the judgment or order, the amount, date of note, parties, and copy of assignments, the time of application for appeal, obtaining of certiorari, &c.
    The answer alleges that said Nicholas Propst, deceased, did authorize one Frank to assign said note to said Meadows for a valuable consideration, and that said Frank so intended to do, and thought he had so done; but, that the name of said Nicholas was omitted in said assignment, by the mistake of said Frank, although authorized to sign the name of said Nicholas ; insists that Meadows bought the note, and that it was the understanding of all the parties, that it should be so assigned as to pass the legal interest and title to said Meadows; that he paid a valuable consideration for the same before the assignment; that it was not assigned to him for the purpose of collection, as charged by the bill, but to pass the legal title and interest; that said note was filed in the office of the Probate Court of Menard county, on the 13th of July, 1849, and presented for allowance ; that complainant, as executor of said Nicholas, objected to its allowance, and the same was not then allowed, for the want of proof; but that it was not withdrawn or abandoned, but that said Meadows was compelled to postpone the litigation until he could procure the testimony of witnesses then residing. in Wisconsin; that to procure said testimony, he served a notice on said complainant that he would sue out dedimus potestatem, &c.; that said complainant did not know as much about time of suit, &c., as he might if he had not been advised to pay no attention to said suit; that when defendant had procured his testimony he posted up notices in three of the most public places in Menard county, ten days before the sitting of the County Court, notifying John Propst that he would appear before said court at its next term, to litigate said claim; that these notices were given in accordance with practice of said court.
    Answer insists that the suit was pending from the time of filing said note, of which John Propst had notice; denies all fraud, &c.
    At November term, 1851, the cause was tried, and the bill was dismissed, and Propst sued out this writ of error.
    The substance of the proofs in the case, are accurately stated in the opinion of the court.
    T. L. Harris and Stuart & Edwards, for plaintiff in error.
    The defendant relies solely upon the ground that the plaintiff had a defence at law, if any at all; and that not having made that defence, equity will not now relieve.
    I admit the doctrine to the full extent, as laid down by Chancellor Kent, in Foster v. Wood, 6 Johns. Ch. 89. As a general principle, this is the correct rule; but it is subject to many exceptions. Each case must be determined by its own merits.
    It is equally well settled that equity will interfere by injunction, either before or after judgment, whenever the cause is shown to involve matter purely of equitable cognizance, and essential to its proper determination. Greenlee v. Gaines, 13 Alab. 198; Reynolds v. Dothard, 7 Alab. 664; French v. Gamer, 7 Port. 549; Miller v. Gaskins, 1 S. & M. 524.
    Where the suit is utterly against conscience, a perpetual injunction has been granted. Chennel v. Churchman, 3 Brown’s C. C. 16, n.; Countess Gainsboro v. Gifford, 2 P. Wms. 424; Hennell v. Killam, 1 Eq. Ca. Abr. 377; Codrington v. Webb, Id.; 3 Call, 460; Rust v. Nare, 6 Grattan, 50; Mason v. Nelson, 11 Leigh, 227; Jones v. Com. Bank, 5 Howard, 43.
    In this case Propst swears he know nothing of the suit or judgment until too late to appeal. This was an ignorance of fact. The judgment is against conscience, and ought to be enjoined as to ignorance of fact. 6 How. 114; Gad v. Hart, 8 S. & M. 787; Fitch v. Polke, 7 Black. 565.
    There are cases where the matters in dispute were clearly cognizable in law, and where appeals would lie, and yet equity has relieved. Reynolds v. Dothard, 7 Ala. 664; Greenlee v. Gaines, 13 Id. 198; Clay v. Fry, 3 Bibb, 248; Pickett v. Morris, 2 Wash. 255.
    The proceedings in our County Court on the probate side are summary. No pleadings are used, nor are any rules or regulations prescribed; and a decision on a matter there is not res judicata, so as to prevent a hearing in chancery. 5 Johns. Ch. 52; 14 Johns. 75.
    But I take the ground, that where an inferior court, invested with common-law jurisdiction, or such only as the statute has conferred—and the statute has not conferred equitable powers — assumes an equitable jurisdiction or a jurisdiction beyond its powers, equity will relieve against its proceedings.

      Brown claims the power of the County Court to adjudicate the matter because the statute requires claims to be filed in that court.
    The County Court had no jurisdiction here, because if the estate was ever, or could be made, liable, it could be only in chancery after decree perfecting the assignment. There was no jurisdiction over the person. The record does not show jurisdiction. If no jurisdiction, the judgment is a nullity. 19 Johns. 33; 9 Cowen, 227.
    And even if the court had jurisdiction of the subject-matter, it obtained no jurisdiction of the person of the plaintiff in error so as to render a judgment. Rev. St. 557, § 116 to 118, 122.
    But I contend that the complainant need not even have averred the application for appeal or his attempt at a certiorari; he might at once have proceeded in chancery, and even while the suit was pending in the County Court.
    It is maintained, t>y Meadows, that the motion to dismiss is equivalent to a demurrer. This is a mistake. A simple motion to dismiss may be for want of form alone. It does not admit the allegations of the bill; a demurrer does.
    Though there might have been a defence at law of which plaintiff did not avail himself, yet this case stands on grounds which have always been recognized as sufficient.
    . The rule is, that where a defendant to bill for an injunction to stay a judgment at law fails to demur, or insist in his answer that a full remedy was at law, but answers in full on the merits, he confesses the right of the Court of Equity to entertain the cause, and it is too late to take advantage of such fact on the hearing. Minshaw v. Jordan, Rolls Mich. 1785, cited 3 Bro. C. C. 1617; Duke of Leeds v. New Radnor, 2 Bro. C. C. (338), 518, and notes; Grandin et al. v. Leroy et al. 2 Paige, 509; Wiswall v. Hall, 3 Paige, 313; Bank of Utica v. City of Utica, 4 Paige, 399; Hawley v. Cramer, 4 Cowen, 717 to 727; Ludlow v. Simond, 2 Ca. Ca. 40 to 56; Underhill v. Van Cortland, 2 Johns. Ch. 339 (369); Galbrath v. Martin, 5 Humph. 50; Mays v. Taylor, 7 Georgia, 238; Stockton v. Williams, Walker, 120; Vanlew v. Bohannan, 4 Rand. 537.
    The defendant introduced no evidence, so that it stands as a bill alone. The replication compels the defendant to sustain his allegations by proofs. White v. Morrison, 11 Ill. 361; Jameson v. Conway, 5 Gilm. 227.
    W. Brown, for defendant in error.
    The defendant in error insists, that the administrator had ample redress at law; and having failed to avail himself of that redress in the Probate Court, or by appeal, or certiorari, (properly prosecuted,) he will not be allowed now to come into a court of chancery and insist upon a perpetual injunction of the judgment at law. Rev. St. 1845, ch. 109, § 138; Id. ch. 85, § 9; Elston v. Blanchard, 2 Scam. 422; State Bank v. Stanton, 2 Gilm. 352; Mason v. Piggott, 11 Ill. 85; Wood v. Seely, Id. 157; 2 Story’s Eq. Juris. § 894 to 898; 4 Blackf. 362.
    It is sought to avoid the force of the last point by saying that the defendant in the bill failed to avail himself of it by demurrer or plea, and that it is too late to avail himself of it at the hearing. Most of the authorities, referred to by appellant on this point, apply to a class of cases where no proceedings at law had been instituted, and not to cases where proceedings at law had been instituted before going into chancery, which proceedings appear upon the face of the bill. The following authorities are relied upon to show that the court decided correctly in dismissing the bill at the hearing: 1 Ves. Sr. 446; Cowan v. Price, 1 Bibb, 175; 2 Gilm. 352; 11 Ill. 85; 4 Blackf. 362.
    Besides, if there be force in the suggestion of the appellant referred to, we reply to it, that the defendant in error moved to dismiss the bill, which motion was overruled before the answer was filed; that this motion was equivalent, under our practice, to a demurrer, and that upon it the bill should have been dismissed, both for want of jurisdiction. and want of equity apparent upon the face of the bill. 2 Gilm. 352; 1 Bibb, 175; 1 Ves. Sr. 446.
    It is objected that the Probate Court had no jurisdiction of the claim filed against the estate. We reply, that the court had jurisdiction, and that the complainant was in that court and objected to the allowance of the claim, which was duly filed. Rev. St. 1845, ch. 109, § 95, 116, 117.

      The assignment upon the note filed in the Probate Court is sufficient. 5 Gilm. 66.
    Again, by filing the bill and suing out an injunction, all errors in the proceedings in the Probate Court are waived, and this is a sufficient reply to the objections to said proceedings. Rev. St. ch. 72, § 11.
    The testimony of Stuart and Propst is admitted not to be before this court, the same not being properly certified nor made a part of the record.
    Other evidence than the depositions was introduced at the hearing; and as the same is not incorporated into and made a part of the record, by bill of exceptions or otherwise, the court, by analogy to its decisions at law, will not reverse the decree, because all the evidence before the court below is not before this court.
    If a party fails to move for a new trial when he might have done so, then the court will not entertain a bill for a new trial, (2 Story’s Eq. Juris. § 895); and, for a like reason, if a party fails to take an appeal or sue out a writ of certiorari when he might have done so, a Court of Equity will not entertain a bill to set aside the judgment at law for a matter available for defence in the Probate Court, or upon appeal, or upon writ of certiorari.
   Caton, J.

The first question to be considered is, Had the executor such notice of the presentation of the claim as the law required, to authorize the County Court to proceed to adjudicate upon it ? This involves the consideration of several sections of our Statute of Wills, by which the practice in such case is regulated. The 95th section requires the executor to give notice to all persons having claims against the estate to attend, at a specified time of the Probate Court, for the purpose of having their claims adjudicated, and provides, “ if no objection be made to said claim by the administrator, widow, guardian, heirs, or others interested in said estate, the claimant shall be permitted to swear that such claim is just and unpaid, or that the same is correct, after allowing all just credits; and if objections be made to such claim previous to said claim being sworn to, the account shall be adjudicated as is now required bylaw.” The 116th section provides as follows: “ The manner of exhibiting claims against the estate of any testator, or intestate may be by serving a notice of such claim on the executors or administrators, or presenting them the account, or filing the account or a copy thereof with the court of probate.” The succeeding section provides, that upon the trial of such claim or of a suit brought against the executor or administrator, if a balance shall be found' due the estate, judgment shall be given therefor, and execution issue, or other legal process which a justice of the peace might issue in like cases. The 118th section provides that “persons having claims against estates, upon giving the executor or administrator ten days’ notice of the time they intend to present the same to said court, the court, upon examination, shall allow or reject such claims: Provided, the court may allow further time for either party to produce other and further evidence in his favor.”

The various provisions of these sections must be considered together as regulating the practice of Courts of Probate when entertaining claims against estates and adjudicating thereon. When a claim is presented at a term of the court, as designated in the notice given under the 95th section, the executor is presumed to be present, and the claimant is therefore not required to notify him of his intention to present his claim at that time. The adjudications of the court at that term upon claims must, therefore, be presumed to have been regular, and to have been made upon the proper proofs in the presence of both parties. In that section no express provision is made for the postponement of the consideration of such claims to any subsequent term. If they are not then finally disposed of, they must be continued by an order of the court to some specified time, or be again presented under the 118th section. This section, it will be observed, requires the person intending to present a claim to the Court of Probate against an executor or administrator, to give ten days’ notice of the time that he intends to present the same, when the court may allow or reject the claim, or grant further time for either party to prepare for trial, according to the exigencies of the case. This section provides an intelligent and just practice for that court, and was no doubt intended by the legislature to be pursued in all cases of claims against estates, whether presented under a notice from the claimant or the executor, or filed under the 116th section of the same law. There is as much reason and propriety in allowing parties further time to prepare for the investigation of claims presented to the court, by producing the necessary proofs, when the claim is presented in pursuance of the notice given by the executors to all creditors, as when the claim is presented under a notice from the creditor to the executors. It is this notice which justifies the court in taking cognizance of claims, and which requires the executor to appear and contest them. When the parties are thus before the court, its adjudication is final, and conclusive upon them. What would constitute such final adjudication in all cases, it is not now necessary to determine. We are not prepared to say that the omission of the court to make an order either disallowing the claim or continuing it for further investigation, would constitute such an adjudication as would bar the right of the claimant to prosecute it further.

In the case before us, we see that this claim was presented to the Probate Court on the 13th of July, 1849. At that time the claim was neither finally disposed of, nor continued for further investigation. We are to infer that the claimant failed to establish it by proof; and unless the claim was withdrawn, or he showed sufficient cause for further time'for the investigation of it, the executor had a right to have an order entered for its rejection, which would have been a perpetual bar to its further prosecution. The claim was not allowed upon the oath of the creditor, and in that event the 95th section declares that it should be adjudicated as required by law; which we understand to mean, upon the proofs to be then adduced, or upon some subsequent occasion to which the controversy might then be continued, or at which it might be presented to the court after notice given according to law. No order whatever was made; and the reasonable inference is that the claim in question was withdrawn, either to be abandoned, or again to be presented, when the party might beliéve he could establish it by sufficient proof. This inference is very much strengthened, if its truth is not conclusively established, by the order of the court by which the claim was allowed. That order was entered on the 19th of March, 1850, eight months after the term at which the claim was first presented for allowance against the executor.

That order of the court commences thus: “ This day was presented a note dated September the 9th, 1833, drawn,” &e. This shows that the note was presented as an original claim, without a reference to any previous presentation of it or to its being upon the files of the court. It may be that it was left among the archives of the office; but if so, we are to conclude that it was there for safe-keeping merely. There is no intimation in any part of the record of the County Court, that this order was a continuation of a previous proceeding pending before that court. It is original in its character; and this bill shows that the executor was never notified that the claim was to be then presented for allowance by the County Court. This proceeding of the court was altogether ex parte, and as such the executor ought not to be concluded by it.

It has ever been a fundamental principle with all courts of justice, that a party shall not be condemned unless he has had actual or constructive notice of the proceeding against him. And this principle applies with all its force to proceedings against an executor or administrator, who represents the rights and interests of others, and whose attention is not quickened by individual responsibility. From this consideration alone, if from none other, we should be led to conclude that claims should not be heard or decisions made unless notice had been given of the time and place of hearing, as required by the several sections of the statute above referred to, or unless the hearing had been continued to some specified time, as is required by the 118th section.

Considering, as we do, that this judgment was not conclusive upon the executor, for the want of notice to appear and defend, the question arises, in what way he may obtain relief against the effects of the adjudication. We are not now prepared to say that this judgment was an absolute nullity, from the omission of the record to show a notice to the executor. The County Court, although of limited, is not strictly speaking of inferior, and certainly is not a court of special, jurisdiction. It is a court of record, and has a general jurisdiction of unlimited extent over a particular class of subjects; and when acting within that sphere, its jurisdiction is as general as that of the Circuit Court. When, therefore, it is adjudicating upon the administration of estates over which it has a general jurisdiction, as liberal intendments will be granted in its favor, as would be extended to the proceedings of the Circuit Court; and it is not necessary that all the facts and circumstances, which justify its action, should affirmatively appear upon the face of its proceedings. Den ex dem, Obert v. Hammul, 3 Harrison, 79; Crigdon’s Lessee v. Astor, 2 Howard, U. S. 319.

This judgment, therefore, may be binding upon the executor until it shall be set aside or vacated by some court of competent jurisdiction. This might have been done by an appeal to the Circuit Court. The record under consideration shows us, that the executor could not take an appeal, for he was ignorant of the judgment, and remained so, until after the time within which he could have appealed had expired. He attempted to take the record of the County Court before the Circuit Court by aid of a certiorari, but that attempt proved abortive, by reason of the unskilful manner in which the petition for that purpose was drawn. This left the judgment of the County Court as effective against him, as if no attempt had been made to reverse it. He has now applied to a court of chancery to have that judgment opened, that its merits may be investigated. It is within the ordinary jurisdiction of this court to grant relief against judgments at law, either by granting new trials, or by perpetual injunction, if it shall appear that the judgmént complained of was obtained by fraud, or resulted from inevitable accident, and that the courts of law cannot grant adequate relief. And we do not hesitate to say, that the Court of Chancery is entirely competent to grant relief against a judgment at law, which has been rendered by a court not having jurisdiction over the person of the defendant, especially where the record of the court at law does not affirmatively show the facts which would confer such jurisdiction. It is a controverted point, which we need not now undertake to settle, whether a judgment at law, when the record is silent as to the facts which would give it jurisdiction over the person, shall be considered as utterly void, or not, when collaterally drawn in question. Let this be as it may, it is the right of the party to be relieved against such a judgment, and a court of chancery is the only tribunal, where, as in this case, appeal or writ of error will not avail, which can grant relief. Other principles might be invoked in support of chancery jurisdiction over the case under consideration, but we choose to place it upon those already advanced.

We are now brought to the consideration of the claim adjudicated by the County Court; for chancery, having acquired jurisdiction of the controversy, it is competent not only to open the judgment, but to examine the merits of the claim upon which that judgment was founded, and to make a final disposition of the original demand. It was not earnestly contended on the argument, that there is any merit in the claim presented against the executor, or that it was founded upon any legal liability, against the estate of the testator.

This claim originated in the supposed indorsement, by the testator, of a certain promissory note in these words, “ I assign the within note to Alexander Meadows, for value received of him, April 10th, 1840.” To this assignment there is not any name subscribed, although the testator was the payee of the note. It cannot be pretended that those words would make him liable, he never having signed the indorsement.

The deposition of Frank, taken in this suit, shows that he was present when the testator passed the indorsed note to Meadows, and that Frank wrote the indorsement, at the request of the .testator. That no consideration was paid for the note so far as witness knows; his recollection is, that Meadows was to have the interest due upon the note as his compensation for collecting it. Why the indorsement was not signed, the witness does not know, but he is of the opinion that it was the intention to transfer the note to Meadows. This evidence, instead of showing a liability against the estate, clearly establishes that the testator never intended to become liable to Meadows, and would show a sufficient defence to an action, if he had signed the indorsement. , The transfer was only intended to aid Meadows in making the collection, for which he was to receive the interest due upon the note, when it should be collected. To him no guaranty was assumed or intended. The decree of the Circuit Court is reversed, and a decree will be entered here, perpetually enjoining the judgment of the County Court.

Decree reversed.


text:
    Holloway Vansyckle et al., Plaintiffs in Error, v. William Richardson et al., Defendants in Error.
    EEEOE TO SCOTT.
    Under our statute, the lands of an intestate are held subject to the payment of his debts, If the personal estate does not satisfy the debts, the real estate, by order of Court, will be sold for that purpose, and the proceeds are declared to be assets in the hands of the administrator.
    The statute in effect reserves a lien on the lands of an intestate, to secure the payment of any excess of indebtedness beyond the proceeds of the personal estate. This lien is to be enforced by the administrator for the benefit of the creditors.
    An heir cannot incumber or aliene real estate, to the prejudice of the rights of the creditors. His is a defeasible estate, liable to be defeated by a sale made by the administrator in the due course of administration, but becomes absolute, after the debts are extinguished.
    A purchaser of real estate under a judgment against the heir, occupies no better position than he who purchases directly from the heir.
    Under proper circumstances, a court of equity will provide for the administration of assets in cases of intestacy; in doing so the Court should have all the creditors before it, and make such a disposition of the property as is required by the statute respecting estates.
    For a statement of the record, see opinion of the Court.
    The cause was heard before Woodson, Judge.
    M. McConnel, for plaintiffs in error.
    William Thomas, for defendants in error.
   Treat, C. J.

'Although this record is very voluminous, the leading facts of the case may be briefly stated. J. R. & O. C. Smith were brothers and partners in trade. J. R. Smith died intestate, in 1837, seized of considerable real estate, and leaving O. C. Smith his sole' heir at law. The firm was then largely indebted, and O. C. Smith continued in charge of the business, as surviving partner. In August, 1837, O. C. Smith conveyed a portion of the real estate to Eckle, Spangler & Ludwig, by way of mortgage, to secure the payment of a debt due them from the firm. In October, 1837, Lloyd 5c McGrath recovered a judgment against the surviving partner, for $114.31. In February, 1838, O. C. Smith conveyed the whole of the real estate to H. B. McClure, in trust for the creditors of the firm, including Eckle, Spangler Sc Ludwig, and Lloyd 5c McGrath. In October, 1839, under an execution issued on the judgment in favor of Lloyd & McGrath, the real estate was sold to McConnell 5c Vansyckle, for $150.66, who subsequently obtained a sheriff’s deed. In August, 1842, McConnell & Vansyckle sold and conveyed one tract of the land to Fielder. In July, 1847, W. 5c W. H. Richardson, M. Badger, C. 5c G. Abbott, K. F. Edgell, T. H. Buckmaster, and Elms, Brooks, Cole, and Crossman, part of the creditors named in the deed of trust, filed a bill in chancery against Loyd 5c McGrath, Eckle, Spangler 5c Ludwig, F. M. Fisk, J. S. Davis, and L. Davis, the other creditors named in the deed of trust; O. C. Smith, the surviving partner; McClure, the trustee; McConnell 5c Vansyckle, and Fielder. The bill set forth the indebtedness of J. R. 5c O. C. Smith; the execution of the deed of trust; the refusal of the trustee to make sale of the real estate; and prayed for a' decree for the sale thereof, to pay the debts due to the creditors of the firm. Lloyd 5c McGrath, McConnell 5c Vansyckle, and Fielder, in their answers, insisted that the title to the lands passed by the sale under the judgment. • Eckle, Spangler 5c Ludwig, by their answer, set up their mortgage as a subsisting lien on the lands. They also filed a cross-bill, praying for a decree of sale, to pay the amount due on the mortgage, in exclusion of the other creditors. On a final hearing, a decree was entered, dismissing the cross-bill, ascertaining the amounts due the creditors respectively, directing a sale of so much of the real estate’ as would be sufficient to discharge the debt; and, in case the proceeds of the sale should prove insufficient for the purpose, then the same should be distributed pro rat& among the creditors! The decree excluded Lloyd & McGrath from any participation in the proceeds of the sale. McConnell & Vansyckle, Lloyd & McGrath, and Fielder, sued out a writ of error.

Under our statute, the lands of an intestate are held subject to the payment of his debts. After the personal estate is exhausted, it is made the duty of the administrator to apply to the proper court, and obtain a license to sell so much of the real estate as will be sufficient to discharge the residue of the debts. The proceeds of the sale are declared to be assets in the hands of the administrator. Rev. Stat. chap. 109. Creditors are not compelled, as at common law, in order to procure satisfaction of their debts, where there is a deficiency of assets for the purpose, to pursue the lands into the hands of the heir; or, to charge the heir with its value, in the case of an alienation by him. They have only to establish their demands against the administrator, and he is required to make payment out of the personal estate; and, when that proves insufficient, to convert enough of the real estate into assets to meet the deficiency. The statute, in effect, reserves a lien on the lands of an intestate, to secure the payment of any excess of indebtedness beyond the proceeds of the personal estate. This lien is to be enforced by the administrator, for the benefit of the creditors generally. The lien, however, is not perpetual, but may be lost by gross laches or unreasonable delay. The real estate descends to the heir with this charge resting upon it. He cannot incumber or aliene it, to the prejudice of the rights of creditors. He acquires a vested, but not an absolute, interest in the land. He takes a defeasible estate, liable to be defeated by a sale made by the administrator, in the due course of administration. He has no just claim to the land until the indebtedness of his ancestor is fully discharged. He acquires an absolute title only to what remains after the debts are extinguished. See 4 Kent’s Com. 419, 421; Wilkinson v. Leland, 2 Pet. 627; Watkins v. Holman, 16 Ibid. 25; Gore v. Brazier, 3 Massachusetts, 523; Drinkwater v. Drinkwater, 4 Ibid. 354; where the same principles are asserted in reference to similar statutes.

It follows, that O. C. Smith acquired but a qualified interest in the real estate of which his brother died seized. He inherited the lands, burdened with the debts of the former owner. He could not transfer any greater estate than was cast upon him by descent. It was not in his power to mortgage or convey the lands, to the prejudice of the creditors. A purchaser, under a judgment against the heir, occupies no better position than a purchaser immediately from the heir. The mortgagees and purchasers succeeded to but a qualified estate in the lands, subject to be divested by a sale made in the due course of administration.

The 8th and following sections of the 44th chapter of the Revised Statutes are not applicable to the present case. Those provisions relate exclusively to cases in which a creditor proceeds directly against the heir, to recover a debt due from the ancestor. In such cases, if the real estate of the ancestor has been bond fide aliened by the heir, it cannot be sold under the judgment obtained against him ; but the creditor may satisfy his judgment out of other property of the heir, to the extent of the value of the land so aliened.

. It is a fair inference, from the whole case, that the deceased partner left no individual creditors, and no separate personal estate. The partnership creditors have, therefore, an undoubted right to resort to his separate real estate for the payment of their debts. It is likewise a fair inference, from the record, that there has been no administration upon his estate. Under these circumstances, there can be no reasonable doubt of the authority of a court of equity to take jurisdiction of the case, at the instance of any of the joint creditors, and proceed to a full and final adjustment of the rights of all parties interested in the subject-matter. The administration of assets, in cases of intestacy, is one of the acknowledged powers of a court of chancery; and the peculiar state of facts in this case appropriately called its functions into active exercise.' Upon this point, I shall barely refer to the 9th chapter of Story’s Equity Jurisprudence, where the whole subject is thoroughly discussed by that eminent jurist. But, in a case of this character, the court should have all of the creditors before it, and make such a disposition of the; property as would be consistent with the provisions of the statute,respecting'the settlement of estates.- It is the settled policy of our laws, that all the creditors of a deceased person shall be permitted to participate in the distribution of the assets. If the estate is insolvent, they are to receive payment in the proportion of their respective debts. It is a reasonable presumption, in this case, that all of the partnership creditors were made parties to the suit. Indeed, there is not even a suggestion to the contrary. The court, having all of the creditors before it, directed their debts to be discharged pro raid, out of the proceeds of the sale. That direction was conformable to the requisitions of the statute and the established principles of equity.

Lloyd & McGrath have no claim on the real estate, nor on the fund that may arise from the sale. Their judgment has been paid, and they are no longer creditors of the firm. McConnell & Vansyckle, by their purchase, only acquired the interest that O. C. Smith had in the lands, as the heir of the former owner, and they must be content with what may remain after the debts áre discharged. Fielder succeeded to no greater estate than his grantors had. If his title shall be divested by the sale, his only recourse will be upon the covenants contained in his deed.

The decree must be affirmed. Decree affirmed.


text:
    David Newsom, Plaintiff in Error, v. Thomas M. Luster et al., Defendants in Error.
    ERROR TO SANGAMON.
    It is not necessary, under § 24 of ch. 25, Rev. Stat., entitled “ Conveyances,” that the party wishing to use a certified copy of a deed duly acknowledged and recorded, should himself make affidavit of the loss of the original, or that it was not in his power; hut any evidence which satisfies the mind of the court, that the deed is not in the party’s power, is all that is required.
    Proof of the handwriting of the grantor to a deed, furnishes more satisfactory evidence of its execution, than would proof of the handwriting of the subscribing witness.
    Whenever the subscribing witnesses to an instrument are beyond the jurisdiction of the court, its execution may be proved by proof of the handwriting of the grantor or obligor. This rule does not apply to instruments which the law requires to be attested by witnesses.
    Evidence sufficient to satisfy a reasonable mind, that a deed is not in the power of a party, is all that the statute requires, as preliminary to the admission in evidence of a certified copy.
    This was an action of trespass quare clausum fregit, brought by the defendants in error against the plaintiff in error. The defendants pleaded, 1st, not guilty; 2d, statute of limitations; 3d, Liberum lenementum. Plaintiff replied by “ similiter ” to 1st, and traversing the 2d and 3d pleas. On the trial, for the purpose of showing title, the plaintiffs offered to read in evidence a certified copy, from the records of deeds of Sangamon county, of a deed from John Huston, the patentee, to Vincent A. Bogue ; and grounded his motion for the admission of said deed upon the following affidavit:
    “David Spear, being duly sworn, states on oath, that this affiant sold and conveyed to the plaintiffs the tract of land in the declaration described among other tracts ; that at the time this affiant conveyed said tracts of land, plaintiffs were minors, as he is informed and believes ; that said land was conveyed by McCandless and Emerson to this affiant; that said McCandless and Emerson claimed said land under a deed of assignment from Vincent A. Bogue, who claimed the same by virtue of a deed from John Huston, the record of which is now offered in evidence ; that this affiant never had in his possession, and never delivered-the original deed from Huston to Bogue, to plaintiffs; nor does he believe that said original deed now is or ever was in the possession or power of said plaintiffs, or either of them; that said Bogue long since left the State of Illinois, and the last affiant heard of him he was in New Orleans, insane ; that said McCandless and Emerson resided at Cincinnati, in the State of Ohio, where, if alive, they still reside, so far as he knows; that this affiant is the agent of said plaintiffs, attending to this cause; that said deed is not in his power or possession, nor does he know where it is.”
    And the court thereupon admitted the certified copy to be read to the jury, to which the defendant at the time excepted. The plaintiffs next offered to read in evidence, a deed, not acknowledged, from Bogue to McCandless and Emerson, by proving the handwriting of Bogue, and accounting for the absence of William Doty, the subscribing witness ; on which two points the plaintiffs proved as follows; by James L. Hill, that he lived in Cincinnati in the summer of 1833, and knew a Mr. McCandless, but thinks he was doing business under the name of McCandless & Co.; can’t say his name was James; don’t recollect of knowing Henry Emerson; that he also knew a man in Cincinnati at the same time, by name of William Doty, but could not swear to his handwriting, and could not say that the handwriting of the subscribing witness to the deed was that of William Doty; that he knows no man in this State by name of Doty; heard of one in Wisconsin. The plaintiff then proved, by Thomas Moffett, that he was well acquainted with Vincent A. Bogue; that he was engaged in running a steamboat in summer of 1833; that he was not in Springfield during any part of said summer; and that he knows he was in Cincinnati during said summer, the earlier part he thinks, but could not swear it was in June ; that he was well acquainted with the handwriting of said Bogue; that the signature to said deed is genuine, and that, in fact, the whole deed is in the handwriting of said Bogue ; and the said Moffett further testified, that he never knew any man by the name of William Doty, living in Sangamon county or in this State. And thereupon the court admitted said deed to be read in evidence to the jury; to which decision the defendant, by his counsel, excepted at the time; and on the admission thereof, it was stipulated by the plaintiffs that, if a verdict should be rendered for them, and the court should be satisfied on reflection that the deed from Bogue as aforesaid was improperly admitted, that then a judgment should be entered for the defendant. And after the rendition of the verdict for the plaintiffs, the defendant moved the court for a new trial, or in pursuance of said stipulation for a judgment in behalf of said defendant, on, the ground that said deed, from Bogue to McCandless and Emerson, was improperly admitted to go to the jury; and the court then and there refused said motion for a new trial, and refused to let judgment be entered for defendant; to which decisions of the court the defendant then and there excepted.

      These several decisions of the court are assigned as errors: 1st, in admitting the copy of the deed from Huston to Bogue, upon the affidavit of D. Spear; 2d, the admission of the deed from Bogue to McCandless and Emerson; and 3d, in overruling the motion for a new trial, and the motion for judgment, in pursuance of the stipulation, for the defendant.
    This cause was heard before Davis, Judge, at August term, 1851, of the Sangamon Circuit Court.
    Stuart & Edwards, for plaintiff in error.
    The deed from Huston to Bogue was improperly admitted upon the affidavit of Spear, the agent. Section 25, ch. 24, Rev. Stat. 108, requires, that the original must be either “ lost, or not in the power of the party wishing to use it.” The affidavit of an agent, that it is not in his power, and that he believes that it is not in the possession of his principal, is not sufficient.
    The deed from Bogue to McCandless and Emerson, was improperly admitted. The rule is inflexible, that the subscribing witness must be produced. 1 Greenl. Ev. § 56; 1 Stark. Ev, 371, 379; 1 Greenl. Ev. § 568 and note, § 574; Cook et al. v. Woodroe, 5 Cranch, 13; 2 U. S. Cond. 174.
    Where a subscribing witness is resident abroad, evidence of his handwriting must be given as if he were dead. Barnes v. Trompowsky, 7 T. R. 261; Lessees of Clarke v. Courtenay et al. 5 Peters, 344; Jackson v. Waldron, 13 Wend. 196; Wilson v. Betts, 4 Den. 206, 210; Brown et al. v. Warren, 4 Blackf. 122; Wilson v. Royston, 2 Arkan. 315; Settle v. Wilson et al. 8 Ga. 206; Clark v. Sanderson, 3 Binn. 192; Farnsworth’s Adm’rs v. Briggs, 6 N. Hamp. 561; Watts v. Kilbourn, 7 Ga. 359.
    S. T. Logan, and E. B. Herndon, for defendants in error.
    That the degree of proof which the law requires, to afford satisfactory evidence that an original deed, a copy of which is proposed to be introduced, is not in the power of the party wishing to use it,, must necessarily be undefined; but if the evidence shows a fair presumption that the party offering to introduce the certified copy is not withholding the original for a fraudulent purpose, and that it is not in his possession or under his control, then the copy is properly admissible. Rev. Stat. 108, § 25; 5 Gilm. 125; 11 Ill. 402; 6 Binn. 228; 3 Phil. Ev. 1187 ; 1 Greenl. 682, and note 5.
    The execution of a deed having a subscribing witness, may be proved by proving the handwriting of the grantor, where the evidence shows that reasonable diligence has been used, or would be useless to prove the same by the subscribing witness, or by proof of his handwriting. 22 Pick. 85; 25 Maine, 90; 8 B. Monroe, 496; 12 Ala. 425; 17 Ala. 717.
   Trumbull, J.

The abstract, furnished by the plaintiff in error, contains a full and fair statement of the points involved in this case.

The propriety of admitting in evidence the certified copy of the deed from Huston to Bogue, involves a construction of § 25 of the chapter concerning conveyances, Rev. Stat. 108, which is as follows :

"Every deed, conveyance, or other writing, of, or concerning, any lands, tenements, or hereditaments, which, by virtue of this chapter, shall be required or entitled to be recorded as aforesaid, being acknowledged or proved according to the provisions of this chapter, whether the same be recorded or not, may be read in evidence without any further proof of the execution thereof;' and if it shall appear, to the satisfaction of the court, that the original deed so acknowledged or proved and recorded, is lost, or not in\ the power of the party wishing to use it, a transcript of the record thereof, certified by the recorder in whose office the same may be recorded, may be read in evidence, in any court of this State, without proof thereof.”

Under this statute, it is not necessary that the party wishing' to use a certified copy of a deed duly acknowledged and recorded, should himself make affidavit of the loss of the original, or that it was not in his power; but any evidence which satisfies the mind of the court that the deed is not in the party’s power, is all that is required.

The same evidence of the loss of the original is not requisite in order to let in proof of its contents by a certified copy, as when the contents are to be supplied by oral testimony. Mariner v. Saunders, 5 Gilm. 123.

The grantee in a deed is presumed to have possession of it, and yet where a party made affidavit that he had not the original, did not know where it was, and that it was out of his power to produce it, connected with proof that the grantee, when called upon for the original, answered that he had not had it for a long time, and did not know where it was, was held sufficient to entitle a certified copy to be read in evidence, without calling the grantee as a witness, though he lived in the town where the trial was had. Bestor v. Powell, 2 Gilm. 119.

The deed from Huston to Bogue, had been executed and placed upon record more than twenty years before the certified copy was offered in evidence. Spear, the agent and grantor of the plaintiffs, swears that he never had possession of said deed, that Bogue — in whose custody the law presumes the deed to be — left the State of Illinois long ago, and when last heard of by the witness was insane, in New Orleans ; that said deed was not in the possession or power of the witness, and never had been, and that he did not'believe it was or ever had been in the power or possession of the plaintiffs. This evidence we think sufficient to satisfy any reasonable. mind, that the deed from Huston to Bogue was not in the power of the plaintiffs, which is all that the statute requires as preliminary to the admission in evidence of the certified copy.

What shall be sufficient evidence that the original is not in the party’s power, must necessarily depend very much upon the circumstances of each particular case, and is, in some measure, a question addressed to the discretion of the court trying the cause. It certainly is not necessary that search should be made in every possible place, or every person summoned as a witness duces tecum, who might by possibility have custody of the paper. If the evidence shows that reasonable efforts have been made to procure the original, or that such efforts would probably be unavailing, it is all that the statute requires.

The next point in the case relates to the proof of the execution of the deed from Bogue to McCandless and Emerson.

This deed was not acknowledged, but was admitted in evidence upon proof of the handwriting of the grantor, the absence of the subscribing witness being first accounted for, and some evidence introduced, tending to show that his handwriting could not be proved.

The evidence sufficiently showed that the subscribing witness to the execution of the deed was not within the reach of the process of the court; and in such case, this court has expressly decided that it is unnecessary to produce the subscribing witness at the trial. Wiley v. Bean, 1 Gilm. 305.

It is, however, objected that, in the absence of the subscribing witness, the next best evidence is proof of his handwriting, and that it was improper to admit the deed in evidence upon proof of the handwriting of the grantor alone. Admitting this to be the general rule, — and, we think, a sufficient reason was shown, in this case, for failing to prove the handwriting of the subscribing witness, — it is laid down in 1 Phillips on Evidence, 475, that “ if, after diligent inquiry, nothing can be heard of the subscribing witness, so that he can neither be produced himself, nor his handwriting proved; in these cases, the execution may be proved, by proving the handwriting of the party to the deed: ” and in Pelletrean v. Jackson, 11 Wend. 123, it is said: “ The same diligence should be exacted in endeavoring to prove the handwriting, that is required in the endeavor to find and procure the personal attendance of the witness, at least, before the third degree of evidence is admitted, to wit, the handwriting of the party.”

In the case of Clarke v. Saunderson, 3 Binney, 192, it was held to be a sufficient reason for failing to prove the handwriting of a subscribing witness, that search had been made without effect for some person who could prove that fact in the county, in Pennsylvania, where she had formerly resided, but without any effort to procure such evidence from Baltimore, where she subsequently lived; and the obligation was admitted in evidence upon proof of the handwriting of the obligor.

The case of McPherson v. Rathbone, 11 Wend. 97, decides, “ that if the handwriting of the# subscribing witness cannot be proved, after proper diligence has been used for that purpose, the party must then resort to the same testimony as if there had been no subscribing, witness.”

In the case of Woodman v. Segar, 25 Maine, 90, the court admitted a deed in evidence, upon proof of the handwriting of the grantor, it being shown that the subscribing witnesses did not reside in the State, and it not appearing jdErmafiyejjy that there was any one in the State who could prove their handwriting.

Tested by these authorities, a sufficient excuse was shown the failure to prove the handwriting of the subscribing witness to the deed, from Bogue to McCandless and Emerson.

The evidence showed, primé facie at least,, that the deed was executed and witnessed in Cincinnati, Ohio, in 1832; and a witness who lived at Cincinnati at that time, states, that he knew a man then residing there, whose name was William -Doty — that of the subscribing witness; but he could not say that the handwriting of the subscribing witness to the deed was that of William Doty. It was further proved, that no man by the name of William Doty had ever been known to the witnesses in the State of Illinois.

Upon the principle settled by the cases of Pelletrean v. Jackson, Clarke v. Saunderson, and Woodman v. Segar, it was clearly unnecessary to go to Cincinnati, in search of evidence to prove the handwriting of the subscribing witness. To have made such a requirement, would have been exacting greater diligence to prove the handwriting of the subscribing witness than to procure his personal attendance, which is not to be required. rThe subscribing witness had never resided in this State, and how was his handwriting to be proved here 1 Where should a party begin to hunt up the evidence, to prove in this State the handwriting of a person who resided in Cincinnati gome twenty 'years ago, and who, so far as is known, had never been .in Illinois ? The thing is almost impossible, and it would be by the merest accident, if such a person could be found in hunting the State over. It would be a fruitless effort to attempt to prove negatively, that there was not evidence to be found within the jurisdiction, of the handwriting of an attesting witness who, it appears, was never within the State. The law will not exact so unreasonable a thing. All that can be required in any case is, that reasonable diligence should be used to procure evidence of the handwriting of the subscribing witness ; and, under the peculiar circumstances of this case, such diligence was shown by the evidence offered.

This branch of the case has thus far been considered upon the assumption that, in the absence of the attesting witness, the next best evidence of the execution of a deed is proof of the handwriting of such witness, and such is the rule established^ by very many authorities.

Why proof of the handwriting of a subscribing witness should be better evidence of the execution of an instrument than that of the obligor, is not very apparent, and the attempts to give a reason have not, in my judgment, been very satisfactory. Senator Tracy, in the case of Jackson v. Waldron, 13 Wend. 197, gives, as reasons for the rule, that a person runs a greater risk “in forging the signature of both witness and party than of the party alone,” and “that, in the suit on the obligation, the person whose name was forged as the subscribing witness would be a competent witness to prove the forgery of his signature; while a party might be compelled to sit silently by, as I have myself witnessed, and see an instrument, to which he was an utter stranger, proved by evidence of his handwriting to have been executed by him.” No one can doubt that proof of the handwriting of both the subscribing witness and party would be more satisfactory than that of either one ; but this is a begging of the question, which is not, whether a person would incur greater risk in forging the signature of both witness and party, than of the party alone ; but the instrument, according to most of the authorities, and such seems to be the rule in New York, is to be admitted in evidence, upon proof of the handwriting of the witness alone; and surely a person would incur no greater risk in forging his signature than that, of the party.

The other reason, assigned by Senator Tracy, is equally unsatisfactory. - It is only in cases where the subscribing witness cannot be had, that proof of the handwriting of either witness or party is allowed. How, then, is it possible for a subscribing witness to be present to prove the forgery of his name, to the genuineness of which a witness is testifying ?

Another reason given for the rule is, that the witnesses, who subscribe at the time of the execution, are agreed upon by the parties to be the only witnesses to prove it, which, in the language of the Supreme Court of New York, in the case of Hall v. Phelps, 2 Johns. 451, “is not conformable to the truth of transactions of this kind, and, to speak with all possible delicacy, is an absurdity.” Again, the same court, in the case of Henry v. Bishop, 2 Wend. 575, after quoting the foregoing paragraph from 2 Johnson, says, “ This remark is perfectly right, not only as regards notes, but instruments under seal; but the old rule has been adhered to by this court in regard to sealed instruments.”

So in Pennsylvania, although the old rule has been adopted, yet it was agreed by the whole court that proof of the handwriting of the party was more satisfactory than that of the subscribing witness. 3 Bin. 195; 10 S. & W. 199.

In Georgia, also, where proof of the handwriting of the subscribing witness is required, the court, after admitting that proof of the handwriting of the party executing the instrument is better evidence of the execution, make this remark: “ Hitherto, however, a technical and artificial rule has prevailed over right reason in relation to this subject.” Watts v. Kilburn, 7 Georgia, 358.

No court in this country, so far as I have examined, has expressed itself satisfied with the rule which makes proof of the handwriting of the attesting witness better evidence than that of the party, though several have felt constrained, by the force of authorities, to adopt it.

The authorities upon this question are not, however, all on one side. A number of as respectable courts as any in the Union have held, that when the subscribing witnesses to a deed are not within the jurisdiction of the court, proof of the handwriting of the party is sufficient to authorize it to be read in evidence. Such have been the decisions in Maine, Massachusetts, Kentucky, and Alabama. 25 Maine, 90; Homer v. Wallis, 11 Mass. 311; Valentine v. Piper, 22 Pick. 85; Scutney v. Overton, 4 Bibb, 445; Yocum v. Barnes, 8 B. Monroe, 496; Mardis v. Shackelford, 4 Ala. 503; Cox v. Davis, 17 Ala. 717.

In New York, as has been already shown, the old rule has been repudiated except as to instruments under seal.

Greenleaf, in the first volume of his work on Evidence, § 575, after stating that in certain cases an instrument may be admitted in evidence upon proof of the handwriting of the subscribing witness, adds, “ the instrument may also in such cases be read upon proof of the handwriting of the obligor or party by whom,/ it was executed.”

In this State the question has now arisen for the first time; and in determining it, I have no hesitation in holding, that proof of the handwriting of the grantor to a deed furnishes altogether more satisfactory evidence of its execution than would proof of the handwriting of the subscribing witness. When the attesting witness cannot be had, the law requires the next best evidence, which| means the next best evidence of those facts to which the attest-l ing witness, if present, would be called upon to testify, that is, not merely that he signed the paper as a witness, but that the party executed the instrument. It is difficult to account for the signature of a party to a writing which he did not execute; but it is easy to imagine how a forged instrument might be established against him, when it is only necessary to procure the name of a person as a subscribing witness to such an instrument, and then establish it by proof of the handwriting of the witness.

As a general rule, therefore, whenever the subscribing wit-} nesses to an instrument are beyond the jurisdiction of the court, its execution may be proved by proof of the handwriting of the grantor or obligor.

This rule does not of course apply to instruments which the law requires to be attested by witnesses», In such cases, evidence of the handwriting of both party and witness would be requisite.

Section 41, ch. 24, of the Revised Statutes, has been referred to as having a bearing upon this case. That section relates to the proof necessary to authorize taking an acknowledgment, not to that which is required to prove the execution of a deed when offered as evidence in a court of law.

Judgment affirmed.