text:
    James Robinson, appellant, v. Thomas Crummer, appellee.

      Appeal from Jo Daviess Co. Court.

    To maintain an action for forcible entry and detainer under the statute, two things must concur : first, the possession must be illegally or forcibly taken, which constitutes the entry; and second, the possession so taken must be withheld, which constitutes the detainer. The rule of the Common Law is changed.
    The action of forcible entry and detainer is purely a civil remedy, the sole object of which is to regain a possession which has been invaded, and the only judgment that can be rendered is, that the plaintiff have restitution of the premises of which he has been unjustly deprived.
    Forcible Entry and Detainer, commenced before a justice of the peace in Jo Daviess county, by Crummer against Robinson and others. A verdict was rendered in favor of the plaintiff, and an appeal was taken to the County Court. The cause was tried in the latter Court by a jury, on the 17th day of November, 184c. -The jury could not agree upon a verdict, and another trial was held on the 17th day of September, 1847, when a verdict was rendered for the plaintiff, and a writ of restitution was awarded by the Court.
    The record shows the following facts as furnished by a bill of exceptions taken on the trial:
    Wm. Thornburn, a witness for the plaintiff, testified that the plaintiff settled where he now lives, in 1835 or 1836; that he built his cabin in 1835 and moved into it in 1836 ; that this was before the Government survey; that the settlers there were governed in designating their claim by a survey of township lines run by one Stephenson. The plaintiff had his claim run out by a surveyor and marked it off by blazed trees on the- surveyed line, and run lines starting from the township line. It included, according to that survey, the south east quarter of section seventeen, township twenty seven north, range two east. The land described in complaint is a part of it. His residence was on the same quarter according to that old survey; but the Government survey made in 1841, placed the plaintiff’s house on section sixteen. The plaintiff’s improvements were all on section sixteen, but in 1835 or 1836, he cut some logs on the tract in dispute, and in 1838 made some lime on the same tract to be used in his house. This was all the improvement ever made upon the tract by the plaintiff, and his- improvements since the Government survey are all on section sixteen. In 1838 or 1839, the defendant, Robinson, told the witness that the line between him and the plaintiff was along the ridge near where the line of plaintiff’s survey run in 1836 or 1837 ; that said line is the same described in this complaint, and the same which he, witness, helped to make in 1836 or 1837.. Robinson told him further that it was agreed between them, that this line was the line of plaintiff’s claim. The plaintiff made his claim a year and a half before Robinson made his .claim.
    The admission of all and every part of the above testimony •was objected to by the defendant, but it was allowed by the Court and exception's taken.
    Barton testified for the plaintiff, that he helped him make his claim in 1835, and was with the defendant, Robinson, in 1837, when he made his claim ; that the line on the ridge described in the complaint then separated the parties, and they acquiesced in that line until after the Government survey. This latter survey varied from the old one the witness helped to make, about 200 yards, and all the plaintiff’s improvements, with his house, fell on section sixteen. The tract described in complaint was covered with timber and not susceptible of cultivation.- The witness further testified, that Robinson, one of the defendants, in 1837, or 1838, settled on the south east quarter of section seventeen, part of which is described in the complaint, and has ever since lived upon it. Shortly after Robinson settled there, but before the Government survey, he pointed out to the witness the line along the ridge, spoken of by Thornburn, as the east line of his claim.
    The defendants objected to all of the testimony of this witness, which objection was overruled by the Court and the defendants excepted.
    James Crammer, a son of the plaintiff, testified in substance as the last two witnesses, as to acts of settlement by his father, on what was supposed to be section seventeen, before the Government survey, and-stated in addition, that in the spring of 1841, immediately after the Government survey, James Robinson, one of the defendants was chopping on the tract of land described in the complaint, and that he came to the plaintiff and told him that said tract fell upon the quarter section where he, Robinson, lived, and that he, Robinson, would have to enter it, and forbid the plaintiff from chopping or doing any thing on said tract. Robinson went away, but soon returned, and he and the plaintiff agreed that neither should cut timber on the tract described in the complaint until the land should be sold by the United States. The plaintiff did nothing afterwards on the tract in controversy. The Government land sales took place in the spring of 1847, long after this suit was commenced. Some little time before this suit was commenced, his father requested Robinson to permit him to go on the tract and make rails, and something was said by the plaintiff about securing the defendant, Robinson, for the entry money. This was on the 9th of December, 1845. The next Monday, the witness saw the defendants cutting and hauling off timber from the tract; there were twelve men and nine yoke of oxen engaged ; they were very boisterous, and the witness thought they had liquor.
    Joseph Crammer, another of the plaintiff’s witnesses, testified substantially as did the last witness.
    Thomas Barton testified for the plaintiff, that he saw the defendant chopping and hauling away timber on the ground in dispute, but don’t say when; that they had two yoke of oxen and there was some noise made when they felled trees. Some of the defendants were saucy to the witness, and cracked jokes at his expense.
    Campbell testified for the plaintiff, that he helped Robinson, one of the defendants, cut and haul timber off from the tract in dispute, and that Robinson told him he wanted to get the timber off to save a lawsuit, and spoke of an injunction.
    Wm. Crummer, another son of the plaintiff, also testified u to certain cutting of timber for his father on the tract in dispute previous to the Government survey, but added nothing in particular to the statements of the preceding witness.
    John Q. Adams also testified for plaintiff as to Robinson’s agreement with the plaintiff, after the Government survey, to forbear cutting timber on the tract in dispute until after the public sale of the land, but added nothing material to that testified by the preceding witnesses, except that in 1843 he expressed a willingness not to chop timber there.
    Wm. J. Robinson testified, that in May or June, 1843, after the Government survey had taken place, the plaintiff told him that he no longer had any claim to the tract in dispute, but that he had claimed it before the Government survey j that Robinson would have to enter it now as it fell on his quarter, and that he had the best right to it.
    Archibald Robinson testified for the defendants, that in 1842 he heard the plaintiff tell James Robinson, one of the defendants, that now since the Government survey had taken place, the tract in dispute had fallen to the said Robinson, and that he (the plaintiff) had been so advised by his lawyer, and told Robinson that he could do what he pleased with it, and that he (the plaintiff) whoud have nothing to do with it.
    The foregoing is all the evidence given on the trial, and so stated in the bill of exceptions.

      V. H. Higgins, for the appellant.

      S. T. Logan, and C. Gilman, for the appellee.
   The Opinion of the Court was delivered by

Treat, C. J.

A new trial should have been granted. The evidence did not make out a case of forcible entry and detainer. There may have been a wrongful entry on the constructive possession of Crummer, but there was not such a continuing in possession as to constitute a detainer. The possession was disturbed, but not withheld. There was not an actual dispossession. The acts complained of were only trespasses, for which the law provides a different but an adequate remedy. To maintain an action for a forcible entry and detainer under our statute, two things must concur : first, the possession must be illegally or forcibly taken, which constitutes the entry .$ and second, the possession so taken must'be withheld, which constitutes the detainer. At Common Law the rule was different. The party was liable to indictment, and might be convicted of either a forcible entry, or a forcible detainer, each being considered a distinct offence. Not so under our statute. The proceeding is purely a civil remedy, the sole object of which is to regain the possession that has been invaded. Damages are not recoverable in this action, but the only judgment for the plaintiff is, that he have restitution of the premises' of which he has been unjustly deprived. If there was not a withholding of the possession, there is nothing to be restored, and' the proceeding is wholly unnecessary ; the party can take the possession without the aid of legal process. To. permit him under such circumstances to bring this action and obtain a judgment of restitution, would be a useless ceremony. Some right is to be ascertained by the judgment of a Court and enforced by its process.

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

Judgment reversed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    James Webb et al., appellants, v. The Alton Marine & Fire Insurance Company, appellees.

      Jippeal from Madison.

    Where a cause was set for hearing on the pleadings and proof without objection, it was held, that the filing of the replication was waived, and that the want of it was not a sufficient cause for reversing the decree.
    A party will not be permitted to remain silent while the cause is progressing, and then raise objections at the hearing, or in the appellate Court, but the objections must be urged in the first instance.
    It is a stern rule of Equity, that it will not decree the specific execution of a contract unless it is based on some fair and valuable consideration.
    Bill in Chancery filed in the Madison Circuit Court, &c. At the March term, 1848, the Hon. Gustavus F. Koerner presiding, the cause was submitted to the Court upon the pleadings and proof without argument, when a special decree was entered in favor of the Company, who were the complainants below.
    The material part of the testimony is sufficiently stated by the Court. .

      W. Martin, for the appellants»
    I. The answers denying the material averments in the hill, no decree could be rendered for complainants, unless such allegations were proved by two witnesses, or by one witness, and corroborated by strong circumstances. Smith v. Shane, 1 McLean, 27; 1 Gilm. 187.
    II. But this cause stands upon bill and answer, which answer denies all the equity in the bill, and which answer the complainants admit to be true, and requires no proof. De Wolf v. Long, 2 Gilm. 679; Rev. Stat. 96, § 32; 4 Scam. 56.
    III. The contract on which the equity of the bill is predicated, is a voluntary contract, given without any consideration, and on which a specific performance cannot be decreed by the Court. 2 Story’s Eq. Jur. (top paging,) 102, 103; 1 Johns. Ch. R. 336, 337; 4 do. 501; 6 do. 223; 2 Harr. & Gill, 100; 1 Cowen, 733; 1 Vesey, 54; 6 do. 662; 1 Vesey, Sen. 279; 3 Brown’s Ch. R. 13, note (1.)
    IV. To authorize a specific performance of an agreement, there must be a mutuality in the contract, and it must also be fair and reasonable. 3 Cowen, 445; 1 Johns. Ch. R. 282.
    V. The case made by the bill is not sustained by the proof, and hence no decree could be made for complainants.
    1 Peters’ C. C. R. 380; 10 Peters, 208, 209; 2 do. 612; 4 Peters’ Cond. R. 146, 147; 5 Wend. 638.
    VI. The testimony of Calvin Riley, given in the cause, should be excluded by the Court in deciding the cause, on account of his interest in the suit.
    VII. The assignee of the agreement on which the suit is founded, takes it subject to all the equity which existed between the original parties. 2 Johns. Cases, 438; Murray v. Governeur, 2 Harrington, 467; 7 Paige, 306.
    L. Davis Sr JV. G. Edwards, for the appellees.
    Specific performance of a contract rests entirely in the discretion of the Court, under all the circumstances, and will be decreed if fair and reasonable. Seymour v. De Lancey, 6 Johns. Ch. R. 225.
    When a contract is reduced to writing, the writing affords the only evidence of the terms and conditions of the contract, and the appellant cannot set up that the contract was different from what the writing imports. Lane v. Sharp, 3 Scam. 573.
    Godfrey was a purchaser with notice of the equity of the appellees. It was not necessary that the contract should be recorded, if Godfrey had actual notice. Whatever is sufficient to put a purchaser upon an inquiry, is good notice. 2 Sugden on Vendors, 335; Green v. Slayter, 4 Johns. Ch. R. 46; Robinson v. Rowan, 2 Scam. 501.
    Riley was not a necessary party to the suit, nor was he interested, as he had transferred all his interest in the contract to the appellees.
    The case shows a sufficient consideration under all the circumstances, to warrant the decree which was made by the Court below.
   The Opinion of the Court was delivered by

Treat, C. J.

This case was not set down for hearing on the bill and answers, but it appears to have been submitted and decided on the pleadings and proofs without objection ; and under such circumstances, on the authority of the case of Jameson v. Conway, decided at this term, the mere want of a replication is not a sufficient cause for reversing the decree. The parties waived the filing of the replication by treating the cause as at issue.

The testimony of the witness, Riley, must be considered in this Court. 'If he was disqualified on the score of interest, the objection should have been taken in the Court below' by a direct application to exclude the deposition. If sustained by the Court, the complainant might have rendered the witness competent by a release, and then proceeded to retake his deposition ; or it might have established the same facts by other testimony. A party is not permitted to remain silent-while the cause is progressing, and then raise such objections at the hearing, or in the appellate Court. Such a practice would occasion much delay and inconvenience and often operate as a fatal surprise to the adverse party.

Regarding, then, the cause as at issue, and the testimony as competent, the question arises, is the complainant entitled to the relief sought by the bill. The agreement purports to be founded on a pecuniary consideration passing from Riley to Webb. It however conclusively appears that aio money or other thing was ever paid to Webb, or contracted to be paid. To sustain the covenant, therefore, on the part of Webb to convey a moiety of the land to Riley, some other consideration than that stated in the agreement must appear; otherwise, the agreement must be regarded as voluntary, and cannot be enforced. It is a stern rule of Equity, that it will not decree the specific execution of a contract, unless it is based on some fair and valuable consideration. It is insisted that a controversy existed between the parties concerning the title to the land, and that the agreement was made for the purpose of settling and defining their respective rights. If such was the case, and there is any mutuality in the agreement, it ought to be enforced. To be binding, however, in Equity, it must have been made under such circumstances as will effectually conclude Riley from ever asserting title to the other moiety of the land; and as the complainant is now seeking to enforce the covenant, such as will conclude it -from claiming title to the same moiety. The bill .states that Webb executed the agreement to settle all controversy respecting the title of the land. The answer denies that it was made on the adjustment of any such controversy, but alleges that it was purely voluntary, and without consideration. The testimony of Riley, the only witness in the case, fails to convince us that there was any such consideration passing from him to Webb, as will authorize a Court of Equity to carry the agreement into effect. There was no mutuality in the contract, as shown on the face of the agreement, or appearing in the circumstances attending the transaction. No release or covenant was required or given by Riley. No controversy was existing between the parties, which was so adjusted as to secure to Webb one moiety of the land, and to Riley the other moiety. If they contemplated such a result, it is but reasonable to conclude that their intentions would be evidenced by some instrument of writing. Riley did not claim the land from Webb as a legal right, but only on the score of sympathy and friendship j and the claim was in part conceded, as he states, unconditionally, and as a peace offering.

Reverse the position of the parties, and suppose that the defendants were now seeking to quiet their title to the other moiety of the land, could it be successfully contended that Riley, by accepting the agreement, and the complainant, by receivingan assignment of it, would be estopped from denying that title. We do not hesitate to say that upon such a loose and inconclusive case, as is here presented, the bill would be dismissed. And this is really the true test by which to determine whether there was any mutuality in the contract. In the opinion of the Court, the agreement is void for the want of mutuality, and the parties must stand by their legal rights.

The decree of the Circuit Court is reversed with costs, and the bill is dismissed.

Decree reversed.


text:
    David Jameson, plaintiff in error, v. Miles W. Conway, School Commissioner, &c., defendant in error.

      Error to Rock Inland.

    A replication in Chancery is a formal pleading, averring the truth of the allegations of the bill, and denying the truth of those in the answer, and its only office is to put the cause at issue. If no replication is filed, the cause maybe set for hearing on the bill and answer, in which case the answer is taken to be true. If the complainant wishes to prove any matter charged in the bill, and not admitted in the answer, or to compel the defendant to sustain the allegations of the answer by proof, he must place the cause at issue by filing a replication. ^

    If a complainant has omitted to file a replication at the proper time, the Court will allow it to be done nunc pro tunc.

    The want of a replication will not be cause for reversing a decree on error, where the parties have taken depositions, and submitted the cause for decision on the pleadings and proofs without objection. In such a case, they will be deemed to have waived the filing of a replication and regarded the cause as if one had been filed in seasonable time.
    The declarations of a party are not competent evidence to prove a matter directly in issue, unless parol evidence would be admissible to establish it; or unless there is no higher or better evidence of the same fact in existence which can be produced.
    Where a School Commissioner had been removed from office, a debtor to the school fund paid to him the amount of his indebtedness and received his obligations, although aware of such removal. In a suit against the debtor by the successor of that officer, the Court held that the payment was made in fraud of the rights of the successor.
    Bill in Chancery to foreclose a mortgage, &c., brought by the defendant in error against the plaintiff in error, in the Rock Island Circuit Court, and heard before the Hon. Thomas C. Browne, at the October term, 1846, when a decree of sale, &c., was rendered.
    So much of the pleadings and evidence as is material to the determination of the case will be found in the Opinion ■ of the Court.

      S. T. Logan, for the plaintiff In error.

      0. H. Browning Sc IN'. Bushnell, for the defendant in error,
    1. The note should not have been paid to Thompson — he had no authority to receive it, and a receipt from him cannot discharge it as against his successor in office. Chitty on Bills, 393-4; Nathaniel v. Stevens, 2 How. (Miss.) R. 642; Leonard v. Leonard, 14 Pick. 280; Vernon v. Hankey, 2 T. R. 113; Vernon v. Hanson, ib. 287.
    2. The admissions of the defendant are sufficient proof that Thompson had been removed from office. 1 Greenb Ev. §§ 171, 194, 195, and note (2); Rankin v. Horner, 16 East, 193; Berryman v. Wise, 4 T. R. 366; Corbin v. Jackson, 14 Wend. 619.
    3. The non-filing of a replication was waived by the plaintiff in error. It was, at most, an ¡irregularity which was waived by not insisting on it, and consenting to go to trial on the “ bill, answer and depositions ” without it.
    1. As to waiver of irregularities. Skinner v. Dayton, 5 Johns. Ch. R. 191; Hawley v. Bennett, 5 Paige, 104; Brasher’s Ex. v. Van Cortlandt, 2 Johns. Ch. R. 242,247-8; Parker v. Williams, 4 Paige, 439; 1 Barb. Ch, Pr. 625-6.
    2. An appellate Court will not decide an appeal on a ground not passed upon nor submitted to the Court below, nor permit a new point to be raised which, if raised below, could have been obviated. The Court will not permit a party to be misled or surprised in this way. 1 Barb. Ch. Pr. 396; 2 Hoff. Ch. Pr. 53; Barnes v. Lee, 1 Bibb, 526; Chamley v. Lord Dunsany, 2 Sch. & Lef. 712; Morgan v. Crurie, 3 A. K. Marsh. 294; Wickliff v. Clay, 1 Dana, 589.
    3. A replication is a mere formal instrument, and if the complainant has omitted to file one at the proper time, the Court will allow it to be filed nunc pro tunc. Where the omission is by inadvertence or mistake, it may be filed after the cause has been set down for hearing, or even after a decree. Where the parties bring on a cause to be heard on “ bill, answer and depositions, ” the defendant waives the filing of a replication, and the want of it cannot be assigned for error. 1 Barb. Ch. Pr. 252; Story’s Eq. Pr. § 881; Scott v. Clarkson’s Ex., 1 Bibb, 277; Pierce v. West, 1 Pet. C. C. R. 351; Smith v. West, 3 Johns. Ch. R. 363.
   The Opinion of the Court was delivered by

Treat, C. J.

‘This was a suit in Chancery, commenced by Conway, School Commissioner, against Jameson, to foreclose a mortgage.

The bill states, in substance, that on the 1st of February, 1841, Jameson executed a promissory note to Thompson, School Commissioner, for the payment of $530, in one year, and also a"mortgage to secure the same; that the debt has mot been paid to Thompson, as School Commissioner, nor to his successor in office; but that Jameson obtained the note and mortgage in a fraudulent manner, and now retains the possession thereof.

The bill waives the oath of the defendant to his answer.

Jameson, in his answer, admits the execution of the note and mortgage, but avers, that on the 3rd of June, 1841, and while Thompson was acting as School Commissioner, he paid the full amount of the debt, and received the note and mortgage from Thompson.

No replication was ever filed to the answer.

The complainant took the depositions of two witnesses, the defendant’s solicitor being present at the examination, and propounding cross interrogatories. One of them deposed that about the 1st of June, 1841, Jameson told him he had got up his papers that day; that Thompson had been removed from the office of School Commissioner, but still retained the papers, and he would pay the man that held them. The other witness swore, that about the first of June, 1841, and while the report was current in the neighborhood that Thompson had been removed from olfice, Jameson told him he had got up his papers from Thompson, and they might do their worst now; and asked the opinion of the witness whether that would discharge him.

The final order of the Court, after stating, “this day came the parties by their solicitors, and this cause coming on to be heard upon the bill of complainant, and the answer of defendant thereto, and the depositions taken in this cause,” proceeds to decree a foreclosure of the mortgage.

It is insisted, in the first place, that the decree must be reversed, because no replication was filed. A replication is a formal pleading, averring the truth of the allegations of the bill, and denying the truth of those of the answer, and its only office is to put the cause at issue. If no replication is filed, the cause may be set for hearing on the bill and answer, in which case the answer is taken to be true. If the complainant wishes to prove any matter charged in the bill, and not admitted in the answer, or compel the defendant to sustain the allegations of the answer by proof, he must place the cause at issue by filing a replication. By omitting to do this, he deprives the defendant of the opportunity of proving the truth of the statements in the answer; and he is therefore required, when the cause is set for hearing on bill and answer, to admit all the defendant would be .allowed to prove, were the cause at issue. A replication, however, is considered as a mere formal pleading, and if the complainant has omitted to file one at the proper time, the Court will allow it to be done afterwards nunc pro tunc. 1 Barbour’s Ch. Pr. 252. This has been permitted after the examination of witnesses, and even after the cause has come on for hearing, and the reading of the proofs has commenced. Cooper’s Eq. PI. 331, 335. And the like permission has been granted after the cause has been set down for hearing, and a reference ordered. Smith v. West, 3 Johns. Ch. R. 363; Pierce v. West, 1 Peters’ C. C. R. 351. Nor will the want of a replication be cause for reversing a decree cn error, where the parties have depositions, and submitted the cause for decision on the pleadings and proofs without objection. They will be deemed to have waived the filing of a replication and regarded the cause as if one had been filed in seasonable time. Scott v. Clarkson, 1 Bibb, 277. That case was in a similar condition to the one under consideration, and the decision is expressly in point. The present cause was not set down for hearing on bill and answer, but it was submitted without objection in the pleadings and proofs, in the taking of which proofs both parties participated. They treated the cause as if it was at issue, and it was so heard and decided by the Court. Under such circumstances it is too late to urge the objection in this Court.

Regarding the cause at issue as did the parties, we come to the question whether the evidence authorized the decree. The execution of the note and mortgage being admitted, the bnly matter in controversy is whether they have been paid. The possession of these by the defendant raises the presumption of payment; and the complainant has only to overcoine this presumption, for the oath of the defendant being dispensed with, the answer has no more force as evidence than the bill or any other pleading. The proof consists in admissions of the defendant that he paid the note and mortgage after Thompson was removed from office. The fact whether he was removed from office was not put in issue by the pleadings. If directly put in issue, it is very clear that it could not be proved by the declarations of the defendant. A record is necessarily made of a removal from office, and the fact of removal could not be proved by parol, but only by the production of the record, or an exemplified copy thereof. The true rule on this subject undoubtedly is, that the declarations of a party are not competent evidence to prove , a matter directly in issue, unless parol evidence would be: admissible to establish it, or unless there is no higher or j better evidence of the same fact in existence, which can be! produced. But for all of the purposes of this case, it is utterly immaterial whether Thompson was removed from office or not. ° The real question is, was he at the time authorized to receive payment of the note and mortgage? The admission was not introduced to sustain an allegation that Thompson was removed from office, but to show the circumstances under which the payment was made. The defendant not only admits the payment was made to Thompson after he was out of office, but states the mode in which he went out of office; the latter a fact wholly unimportant in the decision of this case. The effect of the admission is, that the payment was made when Thompson had no authority to receive it; and this we think is sufficient to overthow the presumption of payment arising from the possession of the instruments. The payment was made in fraud of the rights of the School Commissioner, and cannot avail the defendant.

The decree of the Circuit Court is affirmed with costs.

Decree affirmed.


author: Caton, J.

text:
    Washington County, plaintiff in error, v. Isaac Parlier et al., defendants in error.

      Error to Washington.

    County Commissioners, in making settlements with collectors of the revenue, act as the agents of the State, and do not adjudicate as a Court. Their orders entered upon the records are hut memoranda of the transactions, and prima facie evidence only of the correctness of the result stated. Mistakes made in such settlements may he inquired into and corrected as well as those of an individual acting in his own behalf.
    Motion for a judgment against a Collector, in the Washington Circuit Court, the Hon. Gustavus P. Koerner presiding, at the October term, 1847.
    The record shows that several pleas were filed by the defendant on the trial of the motion. The second plea was payment, and the fifth was that the defendant, at the September term, 1842, of the County Commissioners’ Court of Washington county, paid over to said Court all the revenue which he had up to that time- collected, or been able to collect, and that at said term, said County Commissioners’ Court took from him the Collector’s hooks, by which means he was prevented from collecting any more of said revenue after that time. The parties went to trial upon those issues.
    The plaintiffs offered in evidence the defendant’s receipt as Collectpr of the taxes for the year 1841, showing the amount of county revenue receipted for, to be two thousand, three hundred and ninety eight dollars, and ninety seven cents.
    The defendant then offered as evidence the following order upon the records of the County Commissioners’ Court at their September term, 1842, to wit: “And now at this day came Isaac Parlier, Collector of the revenue of the county of Washington, and Court went into a settlement with Isaac Parlier, Collector of the revenue for the year A. D. 1841, from which it appears that said Collector’s credits, including the amount of tax yet to he collected, amounts t@ $2551,¡,30, from which deduct $2398,9j0, total amount of county tax for the year 1841, leaves a balance in favor of said collector of $152-16 cents. E. E. On re-examination, on page 391, an excess of credits appears allowed said collector in this settlement of $115 .Toand also offered to prove by one Henry Williamson, a County Commissioner of said county at the time of the entry of said order, that the Collector’s books were about that time handed over to one Salem Goodner, and that it was his impression that they were handed over by the County Commissioners. The plaintiffs objected to the introduction in evidence of said order of the County Commissioners’ Court, and also to the testimony of said Williamson. The objections were overruled, and the same admitted in evidence, to which the plaintiffs at the time excepted. Said Williamson also testified that it was the understanding at the time, that all errors were to be rectified. This was all the testimony on the part of the defendant;
    The plaintiffs then offered a witness to prove that there was a mistake in said settlement of the County Commissioners’ Court, by which the said Parlier had received too large a credit by about three hundred dollars. This testimony the Court refused to receive, and decided said settlement to be conclusive upon the County, to which decision the plaintiffs excepted.
    This was all the testimony in the cause. The Court found the issues for the defendant, and thereupon the plaintiffs .moved for a new trial, which the Court denied, and the plaintiffs excepted.

      G. Trumbull argued for the plaintiff in error,

      ex parte, the defendant in error having neglected to join in the assignment of errors.
    The County Commissioner’s Court have jurisdiction over the revenue. Rev. Laws, 142.
    It is the duty of the Collectorto present at the March term of the County Commissioners’ Court, a list upon oath, of the property taxed, and the value of the same, See. See., which list is to be examined by the Court, all errors and mistakes corrected, and the Court shall make an order allowing the Collector credit for the amount of taxes due or payable to the County upon the same. Session Laws of 1838-9, p. p. 11, 12.
    The Collector may be proceeded against by motion in the Circuit Court. Ibid. p. 20, § 54.
    It is contended that the power of the County Commissioners’ Court in making settlement with the Collector is a ministerial power, and differs not from the power given to the “Board of Public Works” to audit and adjust the account of its members, and that the settlement is only prima facie evidence of the state of account, and differs not from any other settlement of accounts.
    The case of Kinney v. The People, 3 Scam. 357, is believed to be conclusive on this point.
    It is decided in 1 Scam. 97, that an agreement of the County may be shown, although it was not made a matter of record.
    A settlement may be impeached by proof of fraud or mistake. 6 Peters’ Cond. R. 296.
    This was not a judicial act on the part of the County Commissioners. There were no parties. No evidence was introduced, and nothing before the Court but the mere report of the Collector, and upon it the Court acted.
    Suppose that there is a mistake in the settlement, and the State should sue the Collector for its part, could the Collector set up his settlement with the County Commissioners’ Const as conclusive ?
    This power of the County Commissioners is likened to the power of the Probate Justice of the Peace to take the proof of wills, which is only prima facie evidence of the validity, of the will, and it may be set aside on an issue ordered out of Chancery.
    If the doctrine be true, that the settlement of the County Commissioners’ Court is conclusive, great injustice may be done. A mistake would not likely be ascertained during the „ term of Court. The County could not take an appeal, and the county and State would be entirely without a remedy to correct the error.
   The Opinion of the Court was delivered by

Caton, J.

This was a motion made under the statute, by the County against the Collector, to recover a balance of the revenue in his hands, which he had collected and not paid over or accounted for. The defendant gave in evidence an order from the records of the County Commissioners’ Court, showing a settlement with the Collector, and a balance in his favor of one hundred and fifty two dollars and sixteen cents, and then a subsequent order showing that upon a re-examination of the accounts, it appeared that the Collector had been allowed too great a credit by one hundred and fifteen dollars and seventy six cents. These orders were objected to by the plaintiff, but admitted in evidence by the Court. The plaintiff offered to prove a mistake in the settlement, by showing that the defendant had been credited with three hundred dollars too much. This the Court refused to allow, to which the plaintiff excepted.

The case of Kinney v. The People, 3 Scam. 357, we think in point. There the Board of Public Works were vested with the same powers and jurisdiction, in relation to the subject matter of that dispute, which the County Commissioners have in relation to this. Both had authority to adjust, audit, and settle certain accounts and matters. In speaking of the powers exercised by the Board of Public Works, the Court said: “It does not possess the character and partake of judicial powers, but simply those of agency on the part of the State, to state an account and agree upon a balance. In the case before us, had the mistake been against the defendant, he would think it very hard to be concluded by the order, especially when he has proved that it was agreed at the time that all mistakes should be corrected. In making this settlement, the Commissioners act as the agents of the County, and do not adjudicate as a Court. They could enter up no judgment against the defendant for the balance found due, nor have they any means of enforcing payment of such balance, except by a resort to the ordinary Courts of Law. As the fiscal agents of the County, their mistakes may be inquired into and corrected as well as those of an individual acting in his own behalf. The record of this settlement is but a memorandum of the transaction, and is only prima facie evidence of the correctness of the result stated. The explanatory evidence offered should have been admitted.

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

Judgment reversed.

       Trumbull, J., having been of counsel, took no part in the decision.


text:
    William Reece, appellant, v. William H. Allen, Administrator of James Mason, deceased, appellee.

      Appeal from Madison.

    An officer, before whom proof of a deed was made, certified thus : “'This day personally appeared,” &c., “Samuel L. McGiíl, a subscribing witness to the within deed (who was to me made known hy the oath of Isaac Prickett, a credible witness,) and who being by me, the same justice, duly sworn,” &c. On the deed being offered in evidence, objection was made that it did not sufficiently appear that the person, by whose testimony the proof was made, was a subscribing witness: Held, that it sufficiently appeared that he was a subscribing witness.
    The grantee of a trustee is not bound to show that the conditions of the trust deed have been complied with by the trustee. The deed conveys the legal title to the estate.
    A Court of Law may investigate some questions offraud, and, when proved, treat a deed as a nullity; but in general, it will not go behind the naked legal title, and inquire into the equities. Even in case of a naked trustee, a trustee may recover in ejectment against the cestui que trust.

    Ejectment, in the Madison Circuit Court, brought by the appellee against the appellant and others, and heard before the Hon. Gustavos P. Koerner.
    At the March term, 1848, the plaintiff dismissed his suit as to all but William Reece, and a jury was called, who rendered a verdict in favor of tile plaintiff. The defendant filed a bill of exceptions, and entered an appeal.

      G. Trumbull, for the- appellant, contended
    1. That the acknowldgment was not sufficient in law. Rev. Stat. 107; Job v. Tebbetts, 4 Gilm. 148.
    2. That when a power is prescribed by a particular method, it should be pursued. 4 Kent’s Com. 148; Sugd. on Vendors, 87; Hawkins v. Kemp, 3 East, 440, 443; 3 Burrow, 1446; Doug. 28; 4 Peters’ Cond. R. 396.
    3. That the appellee must show a legal title, in order to,, recover in ejectment. Hulick v. Scovil, 4 Gilm. 172; 2 Greenl. Ev. 251, 267; Adams on Eject. 285.

      H. W. Billings S? L. Parsons, Jr., for the appellee.
    I. The proof of the execution of the deed from Daniel Reece to John F. Darby was sufficient. Rev. Stat. Ch. 24, § 20; Job v. Tebbetts, 4 Gilm. 152; Delaunay v. Burnett, ib. 489.
    2. A deed by a trustee conveys an absolute title in a Court of Law, and the vendee need not show that the conditions of the trust have been complied with. Taylor v. King, 6 Munf. 366; Harris v. Harris, ib. 367; Ringgold v. Ringgold, 1 Harris & Gill. 26, 27; Jackson v. Davenport, 20 Johns. 548; Minuse v. Cox, 5 Johns. Ch. R. 446; Hilliard’s Abr. 233, § 22; Hill on Trustees, 275, 188, 478.
    3. An equitable title cannot be set up in an action of ejectment in opposition to the legal estate. Jackson v. Pierce, 2 Johns. 226; Same v. Chase, ib. 85.
    4. Sales made by trustees can only be avoided in Chancery. Davoue v. Fanning, 2 Johns. Ch. R. 257, 265; Jackson v. Van Dalfsen, 5 Johns. 46; Wilson v. Troup, 2 Cowen, 203, 211; Thorp v. McCullum, 1 Gilm. 627; Jackson v. Walsh, 14 Johns. 414; Taylor v. King, 6 Munf. 366; Beach v. Beach, 14 Verm. 28.
    5. No one but the cestui que trust has a right to call in question, or set aside a purchase made by the trustee.
      Wilson v. Troup, 2 Cowen, 238; Greenleaf v. Queen, 1 Peters, 145.
    A trustee may recover in ejectment against his cestui que trust. Beach v. Beach, 14 Verm. 28.
    6. When a person is bound to do a certain act, the omission of which would be a culpable neglect of duty, the performance of it will be presumed, unless the contrary is proved. Hartwell v. Root, 19 Johns. 346; Jackson v. Shaffer, 11 do. 516; Williams v. East India Comp., 3 East, 199; The King v. Hawkins, 10 do. 216.
   The Opinion of the Court was delivered by

Caton, J.

-There are three questions in this record, which demand our consideration, and the first is, wrhether the deed from Daniel Reece to John F. Darby was properly proved. The officer before whom this proof was made certifies: “This day personally appeared,” &c., “Samuel L. McGill, a subscribing witness to the within deed, (who was to me made known by the oath of Isaac Prickett, a credible witness,) and who being by me, the said justice, duly sworn,” &c. The objection is, that it does not sufficiently appear that the person by whose testimony the proof was made, was a subscribing witness to the deed. When proof is made by a subscribing witness, the statute requires that “the judge or officer shall ascertain that the person who offers to prove the same, is a subscribing witness, either from his ■own knowledge or from the testimony of a credible witness.” According to the decision of this Court in the case of Job v. Tebbetts, 4 Gilm. 152, upon the proof taken before Edward Hurst, we think it sufficiently appears, that Samuel L. McGill was a subscribing witness, from the testimony of a credible witness. In that case, the words used in the certificate are the same as here, except that it stated, “with whom I am personally acquainted,” instead of “who was to me made known by the oath of Isaac Prickett, a credible witness.” There are two ways in which we may be satisfied that the person proving the execution of the°déed is a subscribing witness. One is by the personal acquaintance or knowledge of the officer who took the proof, and the other is by the oath of a credible witness. The one'is as satisfactory as the other, and as legal a mode of identification. We should be at a loss to assign a reason for holding one certificate good and another bad, which are identical in terms? except as to the mode of identifying the subscribing witness, where both modes are equally legal. The proof of that deed was sufficient.

The next question is, whether the instrument referred to is a mortgage or a trust deed, and we are of opinion that it is the latter, and conveyed the absolute legal title to the trustee. It is unnecessary to quote authorities to show, that in construing deeds as well as other written instruments, it should be a primary object with the Courts to ascertain from the face of the paper, the real intention of the parties, and to give effect to the instrument accordingly. In the introductory part of this deed, the grantee is described as John F. Darby, “as trustee of Richard H. McGill of,” &c. The deed then recites, that on a previous day the grantor had executed a deed for the same premises to McGill to secure the payment of one thousand dollars, and that “from the terms and tenor of said deed, it is considered that the same only amounted to a mortgage, which would require the same to be foreclosed in obedience to law, to pay and satisfy the amount due, when in truth and in fact, such was not the intention of the parties to said deed, but the parties thereto had intended to make a deed of trust of the premises described in said deed, giving and granting to the trustee, full power and authority to sell and convey the lands, tenements and hereditaments, as properly mentioned in said deed, without any authority or order of Court. Now, therefore,” &c. The deed then recites an indebtedness from the grantor to McGill of one thousand dollars; and that for the purpose of securing the prompt payment on a particular day, grants, &c., to Darby, trustee as aforesaid, and to his heirs and assigns, in absolute fee simple. After the habendum, follows the declaration of trust, which repeats the indebtedness, and then proceeds: “Now, if the said Daniel Reece, or any person for him, shall on the said first day of January, 1834, pay. up the full amount of the said sum of one thousand dollars to the said Richard H. McGill, then his this deed shall be null and void, and of no effect, and he the said John F. Darby, trustee as aforesaid, his executors or administrators, shall on the reasonable request and at the proper costs and charges — Daniel Reece, re-convey,” &c.-, but if any part of the said sum of money shall remain unpaid at the time aforesaid, the deed provides that the said Darby shall, on giving notice, sell the premises at the Court House at public auction for cash, and make an absolute deed of conveyance to the purchaser, vesting in him an absolute title, and then directs a disposition of the money.

Although there is one expression in this deed characteristic of a mortgage, yet the intention of the parties is so manifest not to make a mortgage, but to convey the legal title upon a declared trust, that no room is left for doubt as to the true character of the conveyance. To refer to the various expressions in the deed evincing such intention is quite unnecessary. We cannot hold this to be a mortgage, without saying that the manifest and clearly expressed intention of the parties shall cease to be the rule of construction.

The only remaining question is whether the grantee of the trustee, was bound to show that the conditions of the trust deed had been complied with. This precise question was decided by the Supreme Court of Appeals of Virginia, in the case of Taylor v. King, 6 Munf. 358; and also, in Harris v. Harris, ib. 367. Indeed, in the former case the Court went further, and decided that the grantee of the trustee should recover in ejectment, although the jury had specially found that the trustee and purchaser were both guilty of a fraud in the transfer. We do not hesitate to agree with that Court, that the conveyance passed the legal title to the estate, anct that it did not devolve upon "the purchaser to show the trustee in making the sale, had complied with the conditions specified in the trust deed. If the grantee took the title in fraud of the rights of any of the parties, a Court of Chancery, within whose peculiar jurisdiction such questions are, would either set aside the sale, or treat him as trustee and compel him to perform the trust. Hill on Trustees, 175, 188. A Court of Law may, indeed, investigate some questions of fraud, and when proved, treat a deed as a nullity, and conveying no title, as where a party was induced to execute a deed, supposing it was another paper, but in general it will not go behind the naked legal title, and inquire where the equities are. Even in case of a naked trustee, the law is so strenuous for the legal title, that it enables the trustee to recover in ejectment against the cestui que trust. Read v. Read, 8 Tenn. 118; Beach v. Beach, 14 Vermont, 28. This is not like the execution of a naked power by an agent or attorney, and the authorities cited in such cases do not apply.

These are the only questions argued, and upon which a decision is desired, and we are of opinion that these were properly decided by the Circuit Court.

It is admitted that the judgment must be reversed, because the plaintiff did not show that the defendant below was in possession, claiming under the grantees in the trust deed.

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

Judgment reversed.

      Trumbull, J., having been of counsel, took no part in the decision.


text:
    The People of the State of Illinois, ex rel. William McKee, v. Daniel H. Gilmer, Master in Chancery for Pike county.

      Application fur a Mandamus.
    The Circuit Court, sitting as a Court of Chancery, may restrain, by injunction!, a Commissioner from executing a decree of sale.
    The duties and, responsibilities of a Commissioner in Chancery under a decree of sale are similar to those of a sheriff under an execution at Law. Injunctions may issue in the one case as well as in the other, though the desired end might generally be accomplished by a motion in tiie'original case. The interest of third persons, however, might intervene, or new rights or equities arise, which would render a resort to Chancery necessary in order to a fair examination and protection of their rights.
    A Commissioner in Chancery has no right to inquire whether an injunction is*sued against him was properly sued out, but must obey its mandate.
    A mandamus can. only be issued to compel a party to act when it was his duty to act without it.
    The Circuit Court cannot, in a proceeding by injunction of a decree, inquire into the rights of parties existing antecedent to the time when the case was senior a hearing, and which might have been presented at that time.
    Application for a mandamus. The following are copies of the notice served, and of the application to the Supreme Court:
    Jacksonville, December 1st, 1848.-Murray McConnell, Esquire,.
    Sir:
    You will please to take notice that at the December term 1847, of the Supreme Court of the State of Illinois, in the case of William McKee, (myself) executor of Jesse McKee, deceased, complainant in Chancery v. John Manchester, Thomas Manchester, Mark W. Delahay, Holaway W. Vansyckle, James Á. McDougall, Murray McConnell (yourself), John Mathews, George N. Manchester, and George Dewell, defendants, the said Court partially reversed the decree that was recorded in said cause at the September term, 1844, of the Circuit Court of Pike county, in said State, and remanded said cause with directions to the said Circuit Court, “to render a decree and proceed consistently with the principles of” the Opinion rendered in said cause by said Supreme Court. That said cause was so remanded, and reviewed in the name and style of “William McKee, executor of Jesse McKee, deceased, complainant in Chancery v. Mariali Manchester, Julia Manchester, Mary Adeline Manchester, and Thomas Collins Manchester, heirs at law of John Manchester, deceased, John Mathews, administrator of said deceased, and in his (the said John Mathews,) own right, Thomas Manchester, George N. Manchester, George Dewell, Mark W. Delahay, Holaway W. Vansyckle, Murray McConnell, and James A. McDougall, defendants,” at the April term, 1848, of the said Circuit Court and a decree was rendered by said Court on the 8th day of April, 1848, consistent with the determination of said Supreme Court, in the premises, and appointing and requiring Daniel H. Gilmer as Special Commissioner, to sell and convey on twenty days’ notice, of &c. for cash all the right, title and interest, of said defendants of, in and to certain real estate, set forth in said decree, if they, or some of them, should not in ninety days pay to said Commissioner, the sum of two thousand, six hundred and seventeen 93-100 dollars, ($2617-93 cents,) with interest from April 8th, 1848, at the rate of six (6) per cent, and costs of said suit. That said defendants have not, nor hath either of them paid any part of said sum of money or costs. That you on the 7th of July, 1848, filed a bill in Chancery against the said John Mathews, Thomas Hollow-bush and Augustus R. Burbank in the said Circuit Court, and that on the sixth day of the September term, 1848, of said Court, you amended your said bill, and obtained an order from the Judge.of said Court, restraining and enjoining the execution of the decree last aforesaid. That I, by my solicitor, David A. Smith, on the same day, in said Court, and to use of the said Thomas Hollowbush, Augustus R. Burbank, and John Mathews, submitted a motion for a peremptory order upon the said Special Commissioner to execute the decree aforesaid, to proceed forthwith on twenty days’ notice to sell the property described in the decree, notwithstanding your said injunction. That said motion was overruled, and I, by my said solicitor, excepted to the opinion of said Court in overruling said motion. That on the third (3rd) day of the next term of the Supreme Court of said State, to beholden for the Second Division of said State at Springfield on the eighteenth inst., I shall, by my solicitor, file a petition to said Court, accompanied with the just, full and true transcript of the records and proceedings aforesaid duly certified, and there, or as soon thereafter as I can be heard by my counsel, shall move said Court on said petition to grant a peremptory mandamus to the said Special Commissioner, requiring him to execute said decree by sale of, &c. as aforesaid, or a peremptory mandamus to the Judge of the said Circuit Court, requiring him to order the said Special Commissioner so to execute said decree, or for such other or further order as the Supreme Court has power and authority to make in the premises, to secure the supremacy of law, by carrying into complete execution its determination in the matter aforesaid, according to the laws, customs and usages of this State, and according to the rules and principles of the Common Law.
    If you please, you will appear and resist the matter and • things proposed in the premises.
    Very respectfully yours,
    William McKee,
    executor of John McKee, deceased, by his solicitor,
    D. A. Smith.
    Jacksonville, December 2d, A. D. 1848.
    I served Murray McConnell, Esq., with a copy of the foregoing notice. (Signed) David A Smith.
    State of Illinois, ss.
    To the Honorable, the Judges of the Supreme Court of said State sitting at Springfield for the Second Division of said State, December term, A. D. 1848.
    In the name of the People of the State of Illinois, William McKee, the person referred to in the foregoing annexed notice respectfully relates and shows to your Honors, that he brings here into Court, and prays, that the same may he taken as a part of this petition, just, full and true transcripts of the records and proceedings referred to in said notice, marked Exhibit (A); that the facts stated in said notice are true, and asks that the said notice may be considered and treated as a part of this petition. He states that a copy of said notice was duly served upon Murray McConnell, Esq., the person referred to in said notice, on Saturday, the 2d day of December, A. D. 1848. That the course which he is pursuing in the premises to defeat and undermine the Opinion of this Honorable Court, as the Court of last resort, rendered as aforesaid, is unprecedented, unjust, extra-judicial, vexatious and oppressive, and that if such a practice is tolerated by this Honorable Court, that in no case can its decision put an end to strife, if a party whose rights have been fully and finally determined upon by it, can successfully resort to such shifts and expedients as the said Murray McConnell is attempting to perpetrate in the premises. That the said Daniel H. Gilmer, Special Commissioner, is a resident of the said county of Pike, and ready and willing, but for the restraining order of injunction so irregularly and improperly obtained as aforesaid by the said Murray McConnell, to execute the decree obtained as aforesaid in favor of your relator, at the April term, 1848, of the said Circuit Court of Pike county, pursuant to the principles of the Opinion of this Honorable Court rendered as aforesaid ; that the said Murray McConnell is endeavoring to evade the execution of said decree (to which he is, and was a party as aforesaid,) by matters which transpired long before said decree was rendered, and which he ought to have pleaded and relied upon in the cause in which said decree was rendered. That the said Circuit Court in the said injunction suit of the said Murray McConnell had no rightful cognizance of, or jurisdiction of the said decree to restrain or impede its due and prompt execution. Forasmuch then as your relator is utterly without redress in the premises unless, &c., he prays your Honors for the relief that he has notified the said Murray McConnell that he (your relator,) will ask for, and which is particularly indicated in said notice, and as in duty hound your relator will ever pray, &e.
    The People of the State of Illinois,,

      ex relatione William McKee, by his solicitor,
    David A. Smith..
    State of Illinois, > Q . Sangamon Co., $ C ‘
    This day appeared before the undersigned, Clerk of the-Supreme Court of said State for the Second Division, David A. Smith, who made oath in due form of law, that the foregoing notice and petition are true in substance and fact, and that he served Murray McConnell, Esq,, with a copy of said notice on the 2d inst.
    David A. Smith.
    Sworn to and subscribed before me as above, the 20th day of December, A. D. 1848.
    W. B. Warren, Clk.

      D. v?. Smith, for the relator,
    cited the following authorities : Rev. Stat. title,“Courts,” § 7 ; 11 Peters, 173; 12 do. 343, 491, 493 1 Blackf. 155 ; 2 Pick. 419 ; 10 do. 244; 20 do. 495; 21 do. 259; 18 Wend. 79; 20 do. 658; 4 Ark. 302; 2 Ala. 519.

      M. McConnell resisted the application.
   The Opinion of the Court was delivered by

Caton, J.

In pursuance of a mandate from this Court, the Circuit Court of Pike county entered a decree in the case of the present relator against Thomas Manchester and others, reported in 4 Gilman, 511, directing that the defendants, or some of them, within ninety days, should pay to the complainant the sum of $2617-93, and interest; and in default thereof, the present defendant, who was thereby appointed a Commissioner for that purpose, should sell the lands an the .decree mentioned, and with the proceeds pay that amount. Afterwards, McConnell, one of the defendants in that bill, as to whom it was taken as confessed, filed his bill in that Court, showing that McKee had transferred his interests under that decree to John Mathews, Thomas Hollowbush and Augustus R. Burbank; that he had offered to pay McKee the amount of the decree, who refused to receive it for the reason that he had assigned as above stated; that he had then applied to D. A. Smith, solicitor for the assignees, by whom he was informed that they would not receive the money, but denied the right of the complainant to pay the same, and insisted upon a sale of the premises. McConnell claims to-be the owner of the land, and avers that the assignees of McKee aré indebted to him in a much larger sum than the amount of the decree, for work, and timber taken from the land, and otherwise on account of the enjoyment of the premises, in the possession of which they had been since 183 t, and that they were insolvent. The bill prays for an injunction, and that the complainant’s claim against the assignee may be set off against the amount due them under the decree. An injunction was issued by the Circuit Court, restraining the Commissioner from going on with a sale of the lands. That bill has not been brought to a hearing, nor has the injunction been dissolved. A motion was made in the Circuit Court in the name of McKee, the complainantin the first bill, for an order on the .Commissioner to go on and sell the property, notwithstanding the injunction, which was denied. This application is now made here, for a mandamus against the Commissioner, commanding him to proceed with the sale, or against the Circuit Court commanding it to make such an order as was applied for.

As that decree in the Circuit Court was entered in pursuance of a mandate .from this Court, it could not be appealed from, but was final and conclusive upon all of the parties as they we.re adjudicated upon and determined by this Court. In effect, .the decree was the same as if it had been entered up here; and this Court would, by mandamus, compel the the Circuit Court not only to enter such decree as it had directed, but to enforce and execute it, nor could it's execution be interfered with or obstructed, either by that or any other Court, any more than a- direct decree of this Court. It was, in fact, a decree of this- Court promulgated through the Circuit Court.

The main question in this case is one of jurisdiction-. Could the Court of Chancery, under any circumstances, restrain, by injunction, the Commissioner from making the sale contemplated by the decree? If it could restrain that sale-under any given circumstances, then its jurisdiction to control the acts of the Commissioner in that respect, is established. That such jurisdiction existed, we entertain no-doubt. The order of sale was only conditional. If the money was paid by any of the defendants, then the demand-of the complainant was satisfied* and the decree accomplished, and no authority for the sale remained. Indeed, many circumstances, subsequent to the decree, might have arisen which would have rendered a sale improper and unjust. The duties and responsibilities of the Commissioner under the decree were very similar to those of the sheriff with an execution at law, and nothing is more common than to restrain him, by injunction, from proceeding in a particular way or to a certain extent; and it would be the same whether the execution issued from this or from a Circuit Court. In that case, as well as in this, the object might be accomplished in most instances by a motion in the original cause; yet, sometimes, the interest of other persons might intervene, or new rights or equities arise, which would render it necessary to resort to a Court of Chancery to have them fully examined and duly protected. So long as the improper action of the Commissioner under the decree might be controlled by injunction, he could not treat it as a nullity, because it might have been imprudently issued. He had no right to inquire whether a proper case was made for the injunction or not. Being subject to the jurisdiction and control of the Court, he was bound to obey its order without further inquiry.

As it was the duty of the Commissioner to obey the injunction, we cannot compel him to- violate it.. A mandamus cam only be issued to compel a party to act when it was his duty to act without it. It confers upon him no new authority. We cannot look into the injunction bill to see whether ai proper case was made or not. The orders made in that cause are not before us for revision. We can neither reverse nor affirm them now. They must continue in force till they aré vacated by the Circuit Court, or are reversed on appeal or writ of error, if the Court had any authority to make them. We have already seen that a case might have been, made authorizing the injunction, and that we cannot now inquire whether an error was- committed in awarding it. The-Circuit Court could not inquire into the rights of the parties existing'antecedent to-'thetime when that suit was set for hearing and-which might have been presented there, for those were-irrevocably fixed by the decision of this Court; but rights accruing" subsequently, which, of course, could not have been passed upon or presented in the former suit, were proper for its consideration, and an injunction restraining the sale may have been necessary for the protection of those rights. In this, the process of injunction was no more liable to abuse than in matay other cases.

The applicatiomfor ^mandamus must be denied with costs-against the relator:

•Application denied.


text:
    Edward Steelman et al., plaintiffs in error, v. Wiley Watson et al., defendants in error.

      Érror 'to .Adams.

    It is erroneous to render judgrfient by nil dicit against a defendant wlio has filed' a demufrer to the declaration, when the same remains unanswered and not disposed of in any way, and he has not taken any subsequent step in the cause amounting to a waiver of the demurrer.
    Attachment, in the Adams Circuit Court, brought by the defendants in error against the plaintiffs in error.-
    Several motions were made in the Circuit Court and duly disposed- of. Steelman then filed with the Clerk a special-demurrer to the declaration. At the October term, 1848,• the Hon. Norman H. Purple presiding, when the cause was called for trial, one of the defendants’ counsel stated in substance, that he believed they w.ould have nothing further to do with the case. A jury was then called .to assess the plaintiffs’ damages in open Court. While the jury was being called, another of the defendants’ counsel came into Court and without consultation with the former, proceeded to put questions to the witness or witnesses, both counsel being in Court. The jury assessed the plaintiffs’ damages at $814"20, upon which the Court rendered a judgment in the usual form in cases of attachment.

      T. Ford, and C. A. Warren Sr O. C. Skinner, for the plaintiffs in error.

      O. H. Browning Sr N. Bushnell, and .A. Williams S' C. B. Lawrence, fo.r the defendants in error.
    The defendants waived .the demurrer by appearing subsequently and saying nothing in bar of the action. It was an express .waiver..
    Going to trial without objection is a waiver of a discontinuance. Wells v. Mason, 4 Scam. 84, 88; Corley v. Shropshire, 2 Ala. 66.
    If the defendant demurs and then pleads to the whole declaration, the plea waives the .demurrer. Gribbsley v. Nance, 3 Ala. 347; Snyder v. Gaither, 3 Scam. 92; Wilcox v. Woods, ib. 52; or demurs to a plea and then goes to trial without having the demurrer disposed of, the demurrer and plea are waived. Evans v. Gordon, 8 Porter, 142; Whiting v. Cochran, 9 Mass. 503.
    Where no issue in fact appears of record, if .the parties appear and submit the same to a jury, the want of issue is waived. Navigation, &c. v. Schefferter, 5 Ala. 493, 498; Ross v. Reddick, 1 Scam. 73; Brazzle v. Usher, Bre. 14.
    Our statute places this case of judgment by nil dicit on the same footing as if the judgment had be.en rendered,under a verdict. If, in this case, the party had put in the general issue, or had gone to trial without any plea filed, the demurrer would have b.een waived, and he .could .not, .as we .haye seen, have assigned this for error. It is the fault of the party that the demurrer was not acted on, and his appearing at the calling the cause for trial, and saying nothing in bar of the action, was a virtual waiver of the demurrer, and was calculated to lull the other party into security, and he is thus not entitled to the interference of the Court. This Court has already treated similar cases as cured by the statute. Rev. Stat. 49, § 6; ib. 51, § 11; Brazzle v. Usher, Bre. 14; Peltier v. Britton, 4 Blackf. 502; Johnson v. Jackson, 1 Wend. 284; Evans v. Whitmore, 12 Johns. 353.
    By appearing and pleading to the action, the defendant-waives all exceptions to the form or regularity of the writ, so that the defendant cannot then move to set aside proceedings for the non-compliance with the requisitions of the Attachment Law of South' Carolina. 3 U. S. Dig. 194, § 778; ib. 169, § 101.
    Where a plea of abatement is overruled, a plea to the merits waives all exceptions to such ruling. 3 U. S. Dig. 165, § 780.
    An inquisition of damages taken upon a default, is a verdict within the meaning of the law. Anderson v. Semple, 2 Gilm. 455.
   The Opinion of the Court was delivered by

Caton, J.

We should not regret it, if we could concur with the very ingenious argument of the counsel for the defendants in error, yet we are constrained to the conclusion, that it was error in the Circuit Court to render judgment by nil dicit against the defendant Steelman, when he had a demurrer in to the declaration unanswered and undisposed of in any way, and when he had taken no step in the cause subsequently, whereby he might have waived the demurrer, There is no doubt that neither the Court or the plaintiffs’ counsel was aware of the demurrer being upon the liles; still the record shows it was there, and it was error to proceed to judgment without disposing of it.

The judgment is reversed with costs, and the cause re-» jqanded for further proceedings.

Judgment reversed,


author: Trumbull, J.

text:
    Ezekiel Walters, appellant, v. James Short, appellee.

      Appeal from Brown.

    The rule is well settled in England and in many of the Courts of this country, that it'is incumbent on the party offering in evidence an instrument which appears to have been altered, to explain such alteration, and that in the absence of all evidence, either from the appearance of the instrument itself, or otherwise, to show when the alteration was made, it must be presumed to have been subsequent to the execution and delivery of the instrument.
    W. made an instrument in writing promising , to deliver cattle to a certain amount at the residence of S., but to whom they were to be delivered, and how the paper came to the hands of S. it did not appear : Held, that it was not a note within the statute, and that it would not be assignable under the statute; held,, also, that not being a note under the statute, nor by the Common Law, it did not imply a consideration; held, further, that when it was ascertained by proof to whom it was given, it amounted at most but to a special contract between the parties, and that, to authorize a recovery upon it, S. was bound to prove a consideration dehors the instrument as well as that it was given to him.
    This suit was originally instituted before a justice of the peace of Brown County, by the appellee against the appellant, when a judgment was rendered for the defendant. The plaintiff appealed to the Circuit Court, and at the April term, 1848, the Hon. Norman H. Purple presiding, the cause was tried by the Court, and judgment rendered for the plaintiff for $80-00 and costs.
    A copy of the instrument sued on is set forth in the Opinion of the Court.

      R. S. Blackwell, for the appellant.
    The fraudulent alteration of a written instrument, in a material part, by a party claiming an interest under it; avoids the instrument, and no action can be maintained upon it by the party who made the alteration; upon the principle that “no man shall be permitted to take the chance of committing a fraud without running any risk of losing by the event, when it is detected.” Bre. 130; Wheelock v. Freeman, 13 Pick. 165; Master v. Miller, 6 T. R. 320; Johnson v. U. S. Bank, 2 B. Mon. 310.

      Whether an alteration has been made in an instrument or1 not, is a question of fact for a jury. Steel’s Lessee v. Spencer, 1 Peters, 560.
    Alteration in the sum due by a contract is a material alteration. Bre. 130. Whether it is a material alteration or not, is a question of law, to be determined by the Court. S. C. 1 Peters, 560.
    When, by whom, and under what circumstances the alteration was made, are also questions of fact for the consideration of a jury.
    When an instrument appears upon its face to have been altered in a material part, it is incumbent on the party who offers it as evidence to explain the alteration.
    “If an alteration, like that which appears to have been made in this case, can be shown to have been made honestly, if it can be reasonably accounted for, as done under mistake or misapprehension, or with the assent of the plaintiff in error, it should not operate to avoid the obligation; but, on the other hand, if fraudulently done, and with a view to gain any improper advantage, it is right and proper that the defendant in error should wholly lose his remedy upon the instrument.” Adams v. Frye, 3 Metc. 108.
    In the absence of evidence to the contrary, the law presumes that the alteration .was fraudulently made, after the execution and delivery of the instrument. 2 Thomas’ Coke, 232, marginal and 188, top paging; 10 S. & R. 64, 170; 1 Tomlin’s Law Die. 524; 1 Bouv. Law Die. 533; 2 Black. Com. 308; Bull. N. P. 268; 2 Stark. Ev. 272, N. /.; ib. 273, and N. y.', 1 Leigh’s N. P. 657; Humphreys v. Guillou, 13 New Hamp. 385; Tedlie v. Dill, 2 Kelly, 128, 133; Millicken v. Beauchamp, 2 Mill. Law Rep. 290, cited in 2 Phil. Ev. 6, Hill & Cowen’s note, 17; Jackson v. Osborne, 2 Wend. 555; Herrick v. Malen, 22 Wend. 388; Hills v. Barnes, 11 New Hamp. 395; Bowers v. Jewell, 2 do. 543; Johnson v. Duke of Marlborough, 3 Eng. Com. Law R. 360; Bishop v. Chambre, 14 do. 207; Hinman v. Dickinson, 15 do. 409; Taylor v. Moseley, 25 do, 393;
      Desbrow v. Weatherby, ib. 636; Knight v. Clements, 35 do. 377; Clifford v. Parker, 40 do. 687; Prevost v. Graty, 1 Peters’ C. C. R. 364; Headman v. Bratten, 2 Harrington, 396; Davis v. Jenney, I Metc. 221; Gillett v. Sweat, 1 Gilm. 475; Morris’ Lessee v. Vanderen, I Dall. 67; New-ell v. Maybury, 3 Leigh, 350; Mills v. Starr, 2 Bailey, 359; Railroad Bank v. Lane, 7 Howard’s (Miss.) R. 414; Wilson v. Henderson, 9 Smeedes & Marshall, 375; Cariss v. Tattersall, 40 Eng. Com. Law R. 677.
    There are other circumstances, independent of the legal presumption, which fender the instrument suspicious:
    ]. The instrument shows upon it face a want of that deliberation which usually attends the execution of written contracts, inasmuch as three different and distinct understandings are created by the instrument, and it is fair to presume that parties, in reducing the evidence of their contracts to writing, would have agreed upon the extent and terms of the obligation before the execution of it, especially as the undertaking which is interlined is identical in character with the one first recited.
    2. The instrument must, in order to its validity, have been delivered to the plaintiff; he brings an action upon it, and it is fair to presume that he has always had possession of it.
    3. The alteration is material, and increases the liability of the defendant.
    4. Special pleadings not being required or even tolerated in justices’ courts, the • affidavit of the defendant put in issue the identity of the instrument sued on, and devolved on the plaintiff below, the obligation to explain satisfactorily the interlineation appearing on the face of the instrument. Rev. Stat. 319, § 31; ib. 325, § 66; Esp. Ev. 129, 130; Bre. 130.
    Even this was unnecessary. 1. An alteration operates as a discharge by matter subsequent to the execution of the note; hence, it was not necessary to deny the execution by oath. Henderson v. Wilson, 6 Howard’s (Miss.) R. 89, 90.

      2. An action at Law must be brought by the person who has the legal interest in the cause of action. The parties to a contract are the persons in whom the legal interest in the Subject of it is deemed to be vested, and who therefore must be the parties to the action which is instituted for the purpose of enforcing it, or recovering damages for its violation. Where it is not expressly stated to whom the promise is made, the general principle is, that it is deemed to be made to the person from whom the con ideration of the promise proceeded. Treat v. Stanton, 14 Conn. 445.
    Where a written instrument does not show upon its face to whom it is payable, no action will lie upon it without proof of title in the person who brings the action. Bre. 2, 155; Peniston v. Wall, adm’r, 3 J. J. Marsh. 37; Brown v. Gilman, 13 Mass. 158; Douglass v. Wilkeson, 6 Wend. 643.
    3. There being no payee or obligee named in this instrument, it is not a promissory note, or instrument in writing within the meaning of our statute. Therefore it is not evidence of a consideration, and plaintiff must prove one, or he cannot recover. Rev. Stat. 384, §§• 3, 4; 1 Scam. 207; Jerome v. Whitney, 7 Johns. 320; Saxton v. Johnson, 10 do. 418; Rann v. Hughs, 7 T. R. 350, note; Cook v. Bradley, 7 Conn. 57; Beverleys v. Holmes, 4 Munf. 95; People v. Shull, 9 Cowen, 778; Brunett v. Biscoe, 4 Johns. 235.

      S. T. Logan, for the appellee,
    commented on the authorities cited by the counsel for the appellant, and cited the following: 1 Greenl. Ev. 629, and note to the same; 1 Mete. 223; 13 Maine, 386 ; 6 Ala. 707; 20 Maine, 337; 11 Conn, 53 L
   The Opinion of the Court was delivered by

Trumbull, J.

Short sued Walters before a justice of the peace upon the following instrument in writing, to wit:

“Brown C’ty April the 1st 1847
Against the tenth day of July next I promise to deliver a't the
residence of James Short, Fifty dollars worth of good cattle, to be
two years old past, not more than two shall be heifers, any num- » thirty dollars worth .of saleable .cattle
ber above the fifty dollars worth will be received on the horse debt shall he delivered above the fifty $5 worth. all to be saleable cattle. Ezekiel Walters”

The words “thirty dollars worth of saleable .cattle shall be delivered above the fifty $5 worth” were interlined as above. The justice gave judgment in favor of Walters for costs. Short appealed to the Circuit Court, where, by consent, the case was tried by the Court without the intervention of a jury. Short offered in evidence the instrument of writing sued upon, the execution of which was denied by Walters on oath, whereupon witnesses were called who proved the signature of Walters to the instrument to be genuine, which he also admitted. This was all the evidence. The Circuit Court gave judgment in Short’s favor for 4-83163 and costs. Walters moved for a new trial, which was denied, and that denial is now assigned for error.

Two questions arise in this case i

First. Is it a presumption of law that the interlineation or alteration of a written instrument was made after its execution ; and if so, was it incumbent on Short, in this case, to explain, by evidence dehors the writing, the interlineations apparent upon it ?

Secondly. Is the instrument sued upon a promissory note, or such a writing as prima facie implies a consideration P

Upon the first point there is a conflict of the authorities^. Some Courts have held that, if nothing appears to the contrary, the alteration will be presumed to have been made contemporaneous with the execution of the instrument. 13 Maine, 390; 6 Ala. 707; 1 Mete* 223. The reason given by the Courts that have so decided is, that the law will never presume wrong, and that to hold an alteration to have been made after the execution of the instrument would be to presume the holder guilty of forgery. This reason has no foundation in this State so far, at least, as relates to instruments of writing upon which suits are brought, or which are set up by way of defence or set-off, the execution of which, by the fourteenth section of the eighty third chapter of the Revised Statutes, a party is not permitted to deny except on oath. When such denial is made on oath, as in the present case, the law would presume quite as great wrong in assuming that the party making oath that the instrument was not his had been guilty of perjury, as in assuming that the holder of the instrument had altered it after its execution. But we are not satisfied of the soundness of the rule independent of the statute.

By the Common Law, a party offering in evidence a written instrument is always bound to prove its execution, and as well might it be said, that the law which requires such proof presumes the holder to have been guilty of forgery, as to say that a party in offering in evidence a writing showing upon its face that it had been altered, was presumed to he guilty of forgery because he was required to explain such alteration. Written instruments are supposed to he the repositories of the intentions of the parties, but they would surely he very unsafe repositories of such intentions, if the party having possession of the instrument was at liberty to alter it at pleasure, and then call upon the other party to show that the alteration was made after its execution, or else he hound by its contents. Admitting that a note has been altered after its execution, how is the maker to show .that fact? The note has, of course, been in the possession of the payee — is often in his handwriting, and it will be a mere accident if the maker can procure evidence to show how the note was written. Which is the more reasonable, to require the holder of an instrument which has been altered to explain the alteration, or to require that he who executed and never saw it afterwards should show that the alteration had been made since its execution? It is easy for a party taking an instrument that has been interlined or altered, to have the interlineation or alteration noted in the attestation clause so as to show its existence at the time of execution, while it is very difficult for a party who has been out of possession of the instrument to prove that the interlineation was made after he signed it.

The rule is well settled in England and in many of the Courts of this country, that it is incumbent on the party offering in evidence an instrument which appears to have been ' altered to explain such alteration, and that in the absence of all evidence either from the appearance of the instrument itself, or otherwise, to show when the alteration was made, it must be presumed to have been subsequent to the execution and delivery of the ‘ instrument. 11 N. H. 395; 13 do. 386; 5 Bing. 183 ; 2 Manning & Granger, 909 ; 2 Harrington, 396; 22 Wend. 393; 2 Kelly, 128; 1 Greenl. Ev. § 564. Such we believe to be the true rule. The case of Knight v. Clements, 8 Adol. & Ellis, 215, goes still farther, for in that case it was held that the alteration was not sufficiently explained by the appearance of the instrument alone, upon inspection of which the jury had found that the alteration was made at the time of execution, but that some other proof dehors the writing was necessary. We are not prepared to go that far, but think the alteration may often be sufficiently explained by inspection of the instrument itself. In this very case, the Circuit Court may have been satisfied from an inspection of the writing, that the body of it and the interlineations were written in the same handwriting and with the same ink, or that they were both in the handwriting of the maker. If so, the finding of the Circuit Court upon this point was correct. Had the case been tried by a jury, Walters might have called upon the Court to instruct, that in the absence of any evidence, either from the appearance of the note or otherwise, as to when the interlineation was made, it must be presumed to have been subsequent to the execution of the instrument; and if so, the interlineation being material would render it void, -a refusal to give which instruction would have been error; but when the case is tried by the Court, there is no way of preserving such a question, as there is no means of knowing by what principles of law the Court may have been guided in arriving at its conclusion.

Upon the other point, however, we think the judgment of the Circuit Court erroneous.

A promissory note is defined to be “a promise or agreement in writing to pay a specified sum, at a time therein limited or on demand, or at sight, to a person therein named, or his order, or to bearer.” Chitty on Bills, 516. All notes must contain the name of the payee, unless payable to bearer. Bailey on Bills, 22. To make a note within the statute, it must be for a sum of money or article of personal property, and payable to some person or persons, who alone -can assign the same by an indorsement under their hands. Rev. Stat. 384, §§ 3, 4. The instrument sued upon is not payable to any person, and is not, therefore, a note within the statute, nor would it be assignable under the statute. It is simply a promise to deliver cattle to a certain amount at the residence of Short, but to whom they are to be delivered does not appear, nor is it shown how Short came in possession of the instrument.

It would doubtless have been competent for Short to have shown upon the trial, that the instrument was actually given to him, or to have proved circumstances from which that Fact might fairly be inferred, and had he done so, he would have been entitled to maintain a suit upon the instrument; but the single fact that he was the holder of it, was not sufficient to authorize a recovery.

An instrument which read “Good for one hundred and twenty six dollars on demand, Gilman & Hoyt,” was held not to import a promise to pay the holder without extraneous evidence. Brown v. Gilman, 13 Mass. 158; see, also, 6 Wend. 637; Bre. 2, 155.

There is another objection to the recovery in this case. The instrument not being a note under the statute, nor by &he Common Law, does not imply a consideration. It amounts at most to a special contract between the parties, when it is ascertained to whom it was given, and to authorize a recovery upon it, Short is bound to prove a consideration dehors the instrument, as well as that it was given to him. 10 Johns. 418; 9 Cowen, 780.

The judgment of the Circuit Court is reversed at the costs of the defendant in error, and the cause remanded for further proceedings.

Judgment reversed.


text:
    Joshua B. Simpson et al., appellants, v. Thomas Alexander, Jun’r, appellee.

      •Appeal from Putnam.
    An appeal is not pending in the Supreme Court until it is consummated by the filing of the bond.
    An appeal was prayed in the Circuit Court of one of the counties embraced within the Third Grand Division prior to the first day of April, A. D. 1848, the day on which the new Constitution took effect: Held, that the appeal was pending in the Supreme Court for that Division.
    This cause was entered upon the docket of the Supreme Court for the Second Grand Division, when a motion to dismiss the appeal was made by the counsel for the appellee.

      H. O. Merriman, for the appellee, in support of the motion.

      O. Peters, for the appellants, contra.

   The Opinion of the Court was delivered by

Treat, C. J.

On the 30th of March, 1848, Alexander recovered a judgment against T. R. & J. B. Simpson, in the Circuit Court of one of the counties embraced in the Third, Grand Division. On the same day, the defendants were allowed an appeal on their entering into bond within thirty days. The bond was filed on the 25th of April. The question arises, is the appeal pending in this Court? In remoeing a case into the Supreme Court, since the 1st of April, 1848, the record necessarily goes to the Court, held in the Division in which the judgment was rendered, except where all of the parties consent that the case may be heard by the Court in the adjoining Division. ( Owens v. McKethe, ante 79.) This case was not pending in the Supreme Court until the appeal was consummated by the filing of the bond. The allowance of the appeal was conditional, and no right was acquired under it until there was a compliance with the conditions. Branigan v. Rose, 3 Gilm. 123. The case is properly pending in the Court to be held in the northern Division, and must be there disposed of. This Court has no jurisdiction over it, and it must consequently be .dismissed from the docket.

Appeal dismissed.


text:
    Philemon B. Selby, appellant, v. Richard A. Hutchinson, adm’r. &c., appellee.

      Appeal from Knox.

    The general practice of the Supreme Court has been to require applications for a re-hearing to be made during the term in which the judgment is pronounced.
    Where the Opinion of the Court is filed after the close of the term, or so late in the term that counsel have not timeto prepare a petition for a re-hearing before the final adjournment, the application should be made at the earliest opportunity in the succeeding term.
    This suit was decided and the Opinion of the Court was delivered at the December term, 1847. See 4 Gilm. 319. At the present term of this Court, a motion was made for leave to file a petition for a re-hearing, based upon the following affidavit:
    State of Illinois, ss. Supreme Court.
    of Charles Teed, appellee. j Philemon B. Selby, appc Richard A. Hutchinson,
    Julius Manning, attorney for the said appellee, being duly sworn, says that the said cause was tried and. determined at the December term of the said Court, A. D. 1847; that the written Opinion of the Court therein was delivered on the 29th day of December, A. D. 1847; that this affiant read the said Opinion in a cursory manner before leaving Springfield-where he then was, and directly left Springfield to return to-his place of residence in Knox county, Illinois; that owing-to the almost impassable condition of the roads, this affiant could not, and did not arrive at his said place of residence, until five days after leaving Springfield as aforesaid ; that, although at the time of reading the said Opinion, it was in his judgment erroneous, this affiant did not consider that he was authorized to petition the said Court for a rehearing of the said cause, without further consultation with his said client, and that his said client resides between fifteen and twenty miles from this affiant’s place of residence, and did so at the time last aforesaid, and that this affiant could not consult with him before returning home. This affiant further states, that the said appellee had no counsel Swift Esq., then residing at Oquawka, Henderson county, Illinois; that the said Swift was not at Springfield during the last term of said Court, but was at Oquawka aforesaid, and that this affiant had no means of consulting with the said Swift in reference to the propriety of filing the said petition, until after this affiant’s said return home. That this affiant was extremely anxious to have the advice of the said Swift upon so grave a matter as requesting the said Court to reemployed in said cause except this affiant and Hiram E. verse its own decision, however erroneous such decision might be, and that this affiant did, directly after arriving home as aforesaid, write to the said Swift in reference to the said decision and the merits thereof, and as this affiant now recollect, in reference to the propriety of making application for a re-hearing as aforesaid; but, as the said Swift had not had opportunity to read the written Opinion of the said Court, this affiant does not recollect that said Swift gave any direct advice for or against said petition being presented.
    This affiant says further, that within a reasonable time after arriving home as aforesaid (but this affiant does not now recollect the precise number of days,) this affiant consulted with Ms said client in reference to the said decision, and the propriety of presenting said petition, and that upon this affiant stating the facts in relation thereto, his said client left it entirely to this affiant to determine whether said petition should be presented or not.
    That immediately thereafter, this affiant commenced preparing said petition, but that it necessarily occupied this affiant several days in preparing it; that immediately after the same was prepared, that is, on the 20th day of January A. D. 1848, this affiant mailed the same, directed to Charles Gilman, Esq., the Reporter of this Court, with a request that he would present the same to this Court at the then session of said Court; that the said Gilman would have done so, but that the said Court was adjourned .before the arrival of the said petition at Springfield, and the said Gilman had returned to his place of residence at Quincy, Illinois, where the said petition was afterwards forwarded to him; that the said petition so sent to the said Gilman, as aforesaid, is the same petition presented to the Court at this term of said Court, with the exception of two or three interlineations, and the addenda; that as there was no precise time fixed by law when the said Court should adjourn, this affiant supposed and believed, from the amount of business before said Court, at said last term, and the .usual time at which said Court adjourned, that he had forwarded the said petition in time to be filed at said last term, and this affiant believes that under the circumstances above stated, he used at least reasonable diligence for the purpose of having the same presented at said last term.
    This affiant further states, that from the fact of the record in the said cause being very voluminous as this affiant presumes, there are portions of the evidence in said cause being very material to the decision thereof, which the said Court appears to have entirely overlooked, and which, if it had not been overlooked by mistake, would have induced the Court to render a different decision in said cause, as this affiant believes.
    Therefore, for the furtherance of justice, and for the reason that this affiant by the use of reasonable diligence, under the circumstances of this case, could not file the said petition for a re-hearing at the last term of this Court, this affiant causes the said petition to be presented at this term of this Court, and prays the same may be heard.
    Julius Manning.
    Julius Manning, being duly sworn before me this day, says that the contents of the foregoing affidavit are true so far as they are stated on his own knowledge, and so far as they are not so stated, he has been informed and believes them true.
    Julius Manning.
    Sworn to and sub crib ed this 23d day of December, A. D. 1848, before me.
    W. B. Warren, Cl’k. S. C.

      C. Gilman, in support of the motion.
    The general rule of this Court is well understood. There are circumstances, however, which will induce the Court to relax the strictness of the rule. In such cases, the question depends upon the extent of the diligence exercised by the party applying for a re-hearing. In the present instance, we are inclined to believe that the affidavit discloses a state of facts which entitles us to the consideration of the Court. The counsel for the appellee, in the exercise of a proper discretion, used all the diligence that his peculiar situation permitted. Circumstances beyond his control caused the delay. There was no fault on his part, and, therefore, we think that we are entitled to the benefit of the exceptions to the general rule.

      B. S. Blackwell resisted the motion.
    1. A motion for a re-hearing in a cause must be made at the term in which the judgment is pronounced, or Opinion of the Court delivered. Lampsett v. Whitney, 3 Scam. 170; People v. Pearson, ib. 406; Delahay v. McConnell, 4 do. 157.
    2. An attorney has power to petition for a re-hearing without new authority from 1ns client, and if he believes the decision to have been erroneous, it is his duty to do so. In this case, the affidavit of the attorney, who appeared for the ap- ° pellee when this cause was heard at the last term, admits that on reading the Opinion he was satisfied that the Court decided wrong, but that he did not deem it proper to make the application for a re-he'aring without consulting his client, and his assistant'counsel in the Court below. This is no legal and sufficient excuse for not making the application at the last term. Grosvenor v. Danforth, 16 Mass. 74.
    3. Again, the attorney states that he wrote out a petition for a re-hearing, and sent it to Mr. Gilman, the Reporter, to be filed at the last term, but before it reached Springfield the Court had adjourned. But no notice appears to have been given to the appellant of the intended application; therefore, he did not comply with the rule of practice in this Court. 1 Scam. 16, Rule 25.
   The Opinion of the Court was delivered by

Treat, C. J.

The leave asked in this case must be refused. The decision was made when the counsel was present, and several weeks before the final adjournment of the Court. There was then ample time to have presented apetition for a re-hearing at that term. The general practice of this Court has been to require applications of this character to be made during the term in which the judgment is pronounced. We are inclined to adhere rigidly to this rule, and not to tolerate any departure from it, except in cases where the Opinion of the Court is filed after the close of the term, or so late in the term that counsel have not the time to prepare a petition before the final adjournment; and in such case, the application should be made at the earliest opportunity in the succeeding term, so that, if successful, the adverse party-may not be delayed in the consequent re-argument of the case. By this practice, suitors may know, with some degree of certainty, when the decision is final, and-their rights are definitely settled.

Motion denied.