text:
    John Flack, Plaintiff in Error, v. Wiley O. Harrington, Defendant in Error.
    ERROR TO JACKSON.
    If a magistrate officiously and without any complaint on oath or of his own knowledge, issues his warrant to apprehend a person, he will be liable in an action of trespass.
    This was an action of trespass, assault and battery, and false imprisonment, brought by Harrington against Flack, a justice of the peace, and one Johnson, who was deputed by Flack to serve a warrant on plaintiff below.
    The first count of the declaration states that Flack, as justice of the peace, irregularly and illegally issued a warrant against the plaintiff below and others, to answer the complaint of the people of the state of Illinois, for a breach of the peace said to have been committed on the body of one Edward Valentine, without any affidavit having been made before him, the said Flack, by any person against the said Harrington, and without any personal knowledge of the transaction above mentioned and complained of, or other legal information or accusation, whereon to have predicated his said warrant so issued as aforesaid, and whereby to justify his said proceedings. He the said Flack having no reasonable or lawful cause whatever to suspect that the said Harrington had been guilty of the said supposed breach of the peace, which warrant was delivered to Johnson, and the plaintiff below arrested on it by the advice and request of Flack. The second count is similar to the first.
    To this declaration Flack and Johnson demurred, which was overruled by the court below, whereupon they severally plead not guilty; and Johnson plead in addition, a special plea of justification.
    On the trial, Johnson was acquitted and Flack was found guilty, and judgment rendered against him for damages and costs.
   Opinion of the Court by

Justice Lockwood.

This case is clearly distinguishable from the case of Flack and Johnson v. Ankeny, decided this term. The allegation here is, that Flack officiously and without any complaint on oath, issued his warrant for the apprehension of Harrington. And these allegations are found true by the verdict of a jury upon a plea putting the facts directly in issue. Will the law tolerate such conduct in its officers ? This is clearly not a case of error in judgment in a case legally before the justice.

In fact, there was nothing before the justice to authorize him to act at all, for he made the case and then adapted his process to the assumed facts. A justice in issuing a warrant for the apprehension of a person for a criminal offense, acts ministerially, and can not, of his mere motion, institute such a proceeding, unless in particular cases, where he is present at the commission of the offense.

If he voluntarily acts, he is liable to an action, and trespass will lie. The law appears to be well settled on this point, as will appear from the following authorities. In Swift’s digest, page 800, the law on this subject is stated as follows :

If a justice of the peace, without complaint or information, should issue a warrant, and cause a person to be arrested, trespass would lie against him, for though he. is excused when he issues a warrant on a false accusation, yet it is otherwise where he issues his warrant without accusation. Swift cites Cro. El., 130. In the case of Wallsworth v. Mcullough, 10 Johns., p. 93, this was an action of false imprisonment; on the trial the following facts appeared. That the plaintiff was arrested by virtue of a warrant issued by defendant as a justice of the peace, on the complaint of the overseers of the poor, setting forth the examination of the mother, &c. The overseers, however, testified that they never made complaint, nor did they request the justice to issue the warrant.

They also stated that one Garley was occasionally employed by them to do their business, but they had not employed him in this case, and on whose application the warrant liad actually issued. The overseers appeared before the justice on the examination and agreed to the proceedings. The warrant issued without authority, because it was not issued upon the complaint of the overseers of the poor, or either of them. The justice, acting ministerially in this case, was responsible for issuing the warrant without the application required by the statute. The subsequent consent of one of the overseers, that the proceedings might go on, would not deprive the plaintiff of the action for the previous arrest, upon a warrant irregularly issued. And the same court in the case of Jones v. Percival, 2 Johns. Cases, 49, held, “ trespass for a false imprisonment lies against a justice of peace who voluntarily and without the request or authority of the plaintiff in an action before him, issues an execution against the body of the defendant who is privileged from imprisonment, who claims his privilege, and is taken on the execution.” The errors assigned are altogether technical and relate to form, and do not appear to require any examination. The judgment must be affirmed with costs, ,

Cowles, for plaintiff in error.

Eddy, for defendant in error.

Judgment affirmed.

       Vide Flack v. Ankeny, ante, page 187.

       See note to Moore v. Watts, ante, p. 42.


source: Caselaw Access Project

author: Justice Lockwood.

license: Public Domain

text:
    Richardson and Haggatt, Ex’rs. of R. Crow, deceased, Appellants, v. Samuel Prevo, Appellee.
    APPEAL PROM CLARK.
    If a bill for an injunction contains on its face no equity, it will be dissolved on motion. A defense at law, if a legal one, must be made before judgment.
    It is error to decree against a principal and security in an injunction bond, the amount of the judgment at law.
   Opinion of the Court by

Justice Lockwood.

This was a hill in equity, filed in the Clark circuit court, praying relief and for an injuction restraining the collection of a judgment at law. The injunction was dismissed on motion, before answer, and a judgment rendered against appellants and their securities in the injunction bond, for the original judgment and interest and damages. From which decision an appeal has been taken to this court. Two errors are assigned :

1. That the injunction was dissolved before answer, notwithstanding the bill on its face contains sufficient equity:

2. That the judgment was given against both principals and securities, for the whole amount of the judgment enjoined, together with damages and costs.

The first error was not much relied on in the argument, and from an inspection of the bill the court are satisfied that the injunction was properly dissolved on motion. If the intestate had any defense to the action on the bond, it was a legal one, and no sufficient reason is given why he did not defend the suit at law. His laches was therefore a har to the interference of a court of equity.

The second error is well assigned. This court has frequently decided that such a judgment as was rendered in this case, can not be given. The judgment of the court below must be reversed altogether, as to the securities in the injunction bond. It is also reversed as to the judgment against the complainants, for the debt and interest of the judgment at law, and affirmed as to the dissolution of the injunction, and for twenty-eight dollars and eighty cents, the damages and costs of the court below, as against the appellants. The court also are of opinion that the appellants recover the costs of this appeal, ,

         Vide Hubbard v. Hobson, ante, p. 190.

       See note (2) to the case of Reynolds v. Mitchell, ante, p. 177.


text:
    James J. Ryan, Plaintiff in Error, v. Abner Eads, Defendant in Error.
    ERROR TO WASHINGTON.
    A return to a writ by a person who signs himself " Deputy Sheriff,” without stating for A. B., sheriff, is erroneous. A deputy sheriff can only act in the name of his principal.

      Rev. Laws of 1827, p. 373, sec. 11.

   Opinion of the Court by

Justice Lockwood.

This is a writ of error to the Washington circuit court.

Several errors have been assigned, but it is unnecessary to notice more than one of them.

The second writ of scire facias was returned by a person who signs himself deputy sheriff. This was clearly erroneous. A deputy sheriff can only act in the name of his principal. The judgment having been entered by default, this irregularity can be assigned for error.' Judgment reversed for the irregularity of the proceedings below with costs, but the reversal not to operate to the prejudice of any future proceedings on the mortgage, ,

T. Reynolds, for plaintiff in error.

McRoberts, for defendant in error.

Judgment reversed.

       It is essential when a deputy is appointed, that he have all the powers of his principal. 3 Dane’s Dig., 89.
      A deputy has no interest in the office, but is only the shadow of the officer, in whose name he does all tilings. Jac. Law Dict., Title, Deputy.
      A return by the deputy sheriff in his own name as deputy sheriff, is not a return by the sheriff which the court can notice. Simonds v. Catlin, 2 N. Y. Term Rep., 66.
      In North Carolina, a return of the service of a writ made by the deputy sheriff' was held good, it being the immemorial custom of the state to receive their returns. McMurphy v. Campbell, 1 Hayw., 181. Peake’s Ev., 441.

       A return to a summons signed by a person as “ deputy sheriff,” without using the name of the sheriff, is erroneous and void. Ditch v. Edwards, 1 Scam., 127.
      If judgment by default be rendered against a defendant who has not been served with process, the proceedings are coram non judice, and in such case the cause will not be remanded. Ibid.
      A return of service of a summons is good, if signed by the sheriff, although the signature has not to it anything to indicate by what authority he served the process. Thompson v. Haskell, 21 Ill., 215.
      A court is presumed to know its own officers, and especially the sheriff. Ibid.
      The return of an officer to a writ, is only prima facie evidence of the facts stal ed in it. Owens v. Ranstead, 22 Ill., 161.
      See also on the subject of returns, the following cases : Sims v. Klein, post. Wilson v. Greathouse, 1 Scam., 174. Clemson v. Hamm, id., 176. Ogle v. Coffey, id., 239. Mitcheltree v. Stewart et al., 2 Scam., 20. Townsend et al. v. Griggs, 2 Scam., 366. Beaubien v. Sabine, id., 457. Belingall v. Gear, 3 Scam., 575. Montgomery et al. v. Brown et al., 2 Gilm., 584. Farnsworth v. Strasler, 12 Ill., 485. Sconce v. Whitney, id., 150. Morris v. Trustees of Schools, 15 Ill., 269. Turney v. Organ, 16 Ill., 43. Ball v. Shattuck, id., 299. Woods v Gibson, 17 Ill., 218. Cost v. Rose, id., 276. Boyland v. Boyland, 18 Ill., 551. Nelson et al. v. Cook, 19 Ill., 440. Orendorff et al. v. Stanberry et al., 20 Ill., 89. Beach et al. v. Schmultz, id , 185.
      The sheriff's return on a summons against Samuel B. Bancroft, was as follows : “ Served the within by reading the same to and in the hearing of S. B. Bancroft, June 21, 1858." This is insufficient. It does not show whether the date refers to the time of the service or the return. Nor does it show that service was made on Samuel B. Bancroft. S. B. may be the initials of a different person. Bancroft v. Speer, 24 Ill., 227.


text:
    John Giles, Plaintiff in Error, v. John Shaw, Defendant in Error.
    ERROR TO MADISON.
    Oyer can not be demanded of a record. A variance between the record declared on, and the one produced as evidence, can be taken advantage of by the plea of nul tiel record.

   Opinion of the Court by

Justice Lockwood.

This was an action of debt, commenced on a judgment recovered in the [then] territory, now state of Missouri. The declaration is in the usual form. Subsequent to the filing the declaration, the plaintiff filed a transcript of the judgment in Missouri. To which declaration the defendant having oyer given him of the record declared on,” says, that he is not bound to answer farther than by demand, (supposed to mean demurrer,) and plaintiff joins in demurrer. On this state of pleadings the circuit court of Madison gave judgment for defendant. To reverse which a writ of error has been taken to this court. The declaration was sufficient, prima facie, to sustain the action. Could the defendant then, crave oyer of the -transcript on file, and demur ? Such a course would completely exclude the plaintiff’s testimony, and in most cases work the greatest injustice. Oyer at common law is only demandable of specialties. Our statute has probably extended the rule, but clearly limits the right to demand oyer of instruments signed by the party, and can not apply to actions founded on judgments. The proper course for defendants would have been to have pleaded, either nil debet or nul tiel record. Nul tiel record it has been decided, is the proper plea to put in issue such a judgment as has been declared on, where the judgment is either domestic, or from a sister state. If, however, the defendant regarded the judgment as not coming within the purview of the constitution and law of congress, then the proper plea would have been nil debet. On the trial of either of these issues, the defendant could object to a material variance between the evidence offered and the declaration. The court do not decide which of these pleas would be proper, but are of opinion, that inasmuch as the declaration is sufficient on its face, that the court erred in sustaining the demurrer.

Cowles, for plaintiff.

Blackwell and Reynolds, for defendant.

Judgment reversed with costs and the cause remanded to Madison for further proceedings.

The court having been referred to some authorities since the above opinion was written, remark, that the demurrer ought to have been regarded by the court below as a nullity. The demurrer only states, that “ having oyer given him of the record declared on,” but does not proceed to set it out, or in any manner make the transcript a part of the demurrer. This was clearly erroneous. See 5 Bac. Abr. title, “ pleas and pleadings,” page 438, and the authorities there cited. It is by those authorities holden, “ that ifthe defendant, after praying oyer of a deed, do not set forth the whole of it, the plaintiff may sign judgment as for want of a plea, or the court will quash it; for that by craving oyer, the defendant undertakes to set out the whole verbatim, and if he do not do so the plea is bad.” That oyer is not, in strictness, demandable of a record, see 5 Bac. Abr., page 437. ,

Judgment reversed.

        Quere: Is nil debet a proper plea in any case to an action of debt upon a record ? See Chipps v. Yancey, ante, p. 19.

         The defendant shall not have oyer of a record when only conveyance to the action, as in escape; nor in debt on a recovery in an inferior court, for it remains there; nor of a record in another court, nor where he is party to it. 1 Saund., 9.
      One has no right to have oyer of a record, as of an original writ. 1 T. R., 150. 5 Com. Dig., 467.
      The defendant is not entitled to oyer of the original record, and if he prays oyer of it, the plaintiff may proceed without talcing notice of it. Douglass, 227, 477.

       A scire facias upon a recognizance issues after such recognizance is made a record, and oyer of it is not demandable; if the writ misdescribes the record, the proper plea is mil tiel record. Slaten v. The People, 21 Ill., 28.
      If a demurrer craves oyer of an instrument, it must be set out in haec verba, or the declaration will be judged as it stands. Young v. Campbell et al., 5 Gilm., 83.
      In order to take advantage oh demurrer, of a variance, between the note set out in the declaration, and the copy of the note filed with the same, oyer should be craved, and the note set out in haec verba in the demurrer. Bogardus v. Trial, 1 Scam., 63.
      To make a copy of a note, filed with a declaration, a part of the record for any purpose, oyer must be craved. Sims v. Hugsby, post. See Harlow v. Boswell, 15 Ill., 57. Collins v. Ayres, 13 Ill., 362.
      Where a judgment is declared on without a proferí, no oyer can be had. Hall v. Williams, 8 Greenl., 434.
      In Connecticut, oyer must be given of the record of the superior court, when required. Williams v. Perry, 2 Root, 462.
      'The proper mode of obtaining oyer is by prayer entered on record, to which the opposite party may counterplead, and thereby have a decision of the court whether oyer is to be given or not. Pendleton v. Bank of Kentucky, 1 Monroe, 171.


text:
    Belthazar P. Mellick, Plaintiff in Error, v. Justus De Seelhorst, Defendant in Error.
    ERROR TO MADISON.
    Any evidence that tends to prove a promise to take a case out of the statute of lira' itations, should be left to the jury with instructions from the court as to the law thereon.
    An unqualified promise to pay a debt barred by the statute will take it out of it. Where the promise to pay is accompanied with a qualification, it rests with the plaintiff to do away the qualification. An acknowledgment that the debt is still due and subsisting, is sufficient. So also proof of an actual payment of part of the debt, will be sufficient evidence for the jury to infer a promise to pay the balance.
   Opinion of the Court by

Justice Lockwood.

This was an action of assumpsit brought in the Madison circuit court. The plaintiff below declared on a promissory note, to which the defendant plead the statute of limitations, and the plaintiff replied a promise within five years. On the trial of the cause, after the plaintiff had adduced his proof, the court directed the jury “ to return a verdict for the defendant.” To this opinion the plaintiff excepted, and the cause is brought into this court by writ of error. Several errors have been assigned, but the court only deem it necessary to notice one of them, and that is, whether the court ought not to have permitted the evidence to go to the jury without the direction.

On this point we are of opinion that the circuit court erred in not permitting the evidence to go to the jury, with instructions as to the law arising on the case, and then left the jury to decide whether the proof came within the rule.

The case of Lloyd v. Maund, 2 Durnford & East’s Reports, 760, is an authority to show that the evidence ought to have been left to the jury.

As it will be necessary for this cause to go to another jury, the court feel themselves called upon to lay down what they consider the best construction of the statute of limitations in relation to the cases taken out of its operation.

In doing so, however, the court labor under much embarrassment from the great number of conflicting decisions that are to be found in the books of reports. These decisions are of so irreconcileable a character, that this court are at liberty to extract from all the cases such rules as will, in their opinion, most conduce towards effecting the intentions of the legislature in passing the law. An unqualified promise to pay the debt, has, by all the decisions, been held sufficient to take the case out of the statute. Where the promise to pay is accompanied with a qualification, or upon a contingency, the court are of opinion that the proof rests upon the plaintiff to do away the qualification, or show that the contingency has happened. Where the acknowledgement of the party is that the demand is still due and subsisting against him, this will be sufficient to infer a promise to pay. So, also, proof of an actual payment of part of the debt, by the party, or his authorized agent, will also be sufficient evidence for the jury to infer a promise to pay the balance. The court give no opinion whether the evidence contained in the bill of exceptions was sufficient for the plaintiff to recover. If a party wishes to refer the evidence to the court, it ought to be done by a demurrer to evidence.

Cowles, for plaintiff in error.

McRoberts, for defendant in error.

The judgment is reversed with costs, and the cause remanded to the circuit court, and a venire de novo awarded in that court, ,

Judgment reversed.

         An acknowledgment of the original justice of the claim is not sufficient to take the case out of the statute; the acknowledgment must go to the fact that it is still due. 8 Cranch, 72. Clementson v. Willams.

      An acknowledgment whieh will revive the original cause of action, and remove the bar created by the statute, must be unqualified and unconditional; it must show positively that the debt is due in whole or in part. Wetzel v. Bussard, 11 Wheat., 309.
      Vide Kimmel v. Schwartz, post, and the cases there referred to.

       Proof that the defendant had promised to pay a debt barred by the statute of limitations, is insufficient, without evidence of the original consideration of the indebtedness. The new promise only removes the bar, and leaves the case to be proved, as though the statute had not been pleaded. Kimmel v. Schwartz, post.
      The promise to pay must be absolute and unqualified, and is not to be extended by implication or presumption, beyond the express words of the promise. Ibid.
      A defendant stated to an agent of the plaintiff, that he thought the account shown to him by the agent was correct, and he would see the plaintiff and settle with him. This is not sufficient to take the case out of the statute. There was no promise to pay, express or implied. It is not enough that the party admitted the account to be correct, or that he got the things charged, or executed the note sued on there must at least be an admission that the debt is still due and unpaid. Ayers v. Richards, 12 Ill., 148.
      A promise to pay may be implied, from an unqualified admission that the debt is due and unpaid, nothing being said or done at the time, rebutting the presumption of a promise to pay. Ibid.

        In Keener, ex’r., &c. v. Crull & wife, 19 Ill., 189, the evidence was, “ that the defendant's testator, who was the father of the feme covert plaintiff, in a conversation with oneLongwith, said, he had agreed to give his daughter (plaintiff below,) two hundred dollars a year for her work, and he had not paid her yet, and she had gone to Ohio.” The evidence also showed she had worked for her father five years. On this evidence the court said: “ The new promise may arise out of such facts as identify the debt, the subject of the promise, with such certainty as will clearly determine its character, fix the amount due, and show a present unqualified willingness and intention to pay it, at the time acted upon and acceded to by the creditor, the promise. Like any other promise, having legal force and sanction, it must be made to the party seeking its benefits, or to some one authorized to act for him. A promise to a stranger is insufficient. Tested by these rules, the plaintiff can not recover. The language of the defendant’s testator was used to a stranger, having no concern in the matter, or right to act for the party in interest; the amount of the debt was not named, or in any manner indicated, nor was there any language unequivocally importing a present intention or undertaking to pay.”
      An indorsement of a partial payment on a note, made by the holder without the privity of the maker, is not, of itself, and uncorroborated, sufficient evidence of payment to repel the defense created by the statute of limitations. Connelly v. Pearson, 4 Gilm., 110.
      Although the statute of limitations may not, in terms, apply to courts of equity, yet by analogy equity will act on the statute, and will refuse the relief when the bar is complete at law. Manning v. Warren, 17 Ill., 267.
      Where a trust fund continues with the trustee, it is not subject to be barred by the statute of limitations, as between trustee and cestui que trust. King v. Hamilton, 16 Ill., 190.
      When the statute once commences running, it continues to run unless saved by the statute. The People v. White et al., 11 Ill., 350, and cases there cited. Chenot v. Lefevre, 3 Gilm., 637. Vanlandingham v. Huston, 4 Gilm., 128.
      Cases within the reason, bnt not within the words of the statute, are not barred by it. Bedell v. Jenney, 4 Gilm., 207, and numerous authorities cited in the opinion of the court.
      The statute of limitations should be specially pleaded, to all actions of a pergonal nature. Gebhart v. Adams, 23 Ill., 397.


author: Chief Justice Wilson.

text:
    Mary Ann Mears, Ex’rx of Wm. Mears, Plaintiff in Error, v. Wm. Morrison, Defendant in Error.
    ERROR TO RANDOLPH.
    The usual and appropriate mode of executing "a deed or other writing, by an agent or attorney, is for the agent or attorney to sign his principal’s name, and then his own, as agent.
   Opinion of the Court by

Chief Justice Wilson.

This is an action of covenant, brought by the plaintiff in error, against the defendant, upon the following obligation:

“I do hereby sell, deliver over, and transfer to William Mears, the time that a negro girl named Harriet, and her children, had to serve William Morrison, she being a daughter of a servant of said Morrison, indentured under the laws of this territory concerning the indenturing of slaves, for the sum of three hundred dollars, payable in twelve months, with interest from this date. Witness my hand and seal, 17th June, 1818.

Guy Morrison, Agent” [seal.]

Upon the trial, a verdict was found for the plaintiff in error, and upon motion of the defendant below, the court arrested the judgment, upon the ground that the instrument declared on created no liability on William Morrison. The correctness of this opinion is the only point to be decided.

J. & T. Reynolds, for plaintiff in error.

Breese, for defendant in error.

Something has been said by counsel, as to the sufficiency of this instrument to impose a liability upon any one. Upon this point the court will give no opinion; it is unnecessary, and indeed, it would be improper to determine upon the rights or obligations of persons not parties in the case. Has Morrison, then, bound himself in person or by his agent? The covenant is in the first person. The signing, by Guy Morrison, is also in the first person. In no part of the instrument is William Morrison referred to as covenanting, not even by recital.

What is the grammatical construction of the language used in the covenant ? It can not be that it is the defendant who covenants, when the covenant commences in the first person, and is signed, not by him, but by Guy Morrison, agent. By no construction of language, or principle of law, can the term agent, affixed to the name of Guy Morrison, be intended to import that he is the agent of William Morrison. The usual and appropriate mode of signing a deed by an agent or attorney, is for 'him to sign his principal’s name, and then to sign his own, as agent. Here, the seal is clearly not the seal of William Morrison, but of another person. There are numerous cases to be found im illustration of this rule. It was so decided in the cases of White v. Cuyler, 6 Term Reports, 176. Wilks v. Back, 2 East, 142. 4 Mass. Rep., 595. 5 Mass. Rep., 299; and 2 Wheat., 56. Duvall v. Craig. We are clearly of opinion that the circuit court decided correctly in arresting the judgment, and that its judgment ought to be affirmed, ,

Judgment affirmed.

         A draper of a bill may be liable personally, though known to all parties to be agent, as where he signs his name without any qualification. 11 Mass. Rep., 54.
      One who covenants for himself, his heirs, &c., and under his own hand and seal, for the act of another, shall be personally bound by his covenant, though he describes himself in the deed as covenanting for, and on the part and behalf of, such other person. Appleton v. Binks, 5 East., 148.

       Approved in Graham v. Dixon et al.., 3 Scam., 117. Pensonneau et al. v. Bleakley et al., 14 Ill., 16. Gray et al. v. Gillilan et al., 15 Ill., 454.


author: Justice Smith.

text:
    Michael Jones, Plaintiff in Error, v. Lloyd, Serrill and Oakford, Defendants in Error.
    " ERROR TO GALLATIN.
    A judgment in damages, where the action is in debt, is erroneous, and upon a verdict rendered for eight hundred dollars in damages where the action is debt, no judgment can be rendered.
    In such case the judgment ought to have been for the amount of the debt found to be due, and the damages sustained, which damages would be the amount o f interest on the sum found by the jury as the debt.
   Opinion of the Court by

Justice Smith.

This is an action of debt on a sealed negotiable note, assigned to the defendants in error. The declaration sets forth the amount of the note as the debt due, and alleges that the plaintiffs sustained damage, by the non-payment thereof, to fifty dollars.

The defendant plead several pleas, which it is not necessary to enumerate. Issues of fact were made up, the cause tried, and a verdict rendered for the plaintiffs, for eight hundred dollars and fifty cents, without specifying whether in debt, or damages. Upon this verdict, a judgment was entered up as follows: “ It is therefore considered by the court, that the plaintiffs recover against the said defendant, eight hundred dollars and fifty cents damages, by the jurors aforesaid, in their verdict aforesaid, assessed, and also their costs,” &c. Under the sixth assignment of errors, which is the only one it is considered necessary to notice, it is contended, the action being in debt, and the judgment in damages, that the judgment is improper, and wholly irregular. We think the judgment to be evidently erroneous. It ought to have been for the amount of the debt found to be due, and the damages sustained, which damages would have been the amount of interest on the sum found as the debt by the jury.

The verdict of the jury is therefore an improper finding and a judgment is incapable of being rendered thereon.

The plaintiff should, at thé trial, have required a correction of the verdict, and had the same put into form. Even then, the plaintiffs could not have recovered the whole amount found by the jury, that amount exceeding the amount of the note declared on, and the damages, as laid in the declaration. It is certain that the plaintiffs can not recover more than their declaration covers, for this would be to award him more than he asks himself. In cases of torts, where a jury have found more than the amount of damages laid, the courts have refused, on application, to permit the plaintiff to enlarge the amount of damages laid in his declaration, so as to avail himself of the verdict, and enter judgment thereon. Such has been the decision of the supreme court of New York. The practice is, where the amount found by the verdict exceeds the amount in the declaration, to enter a remittitur for the excess. This not having been done, and the judgment being in damages, is clearly erroneous. The remaining question is, whether this court has the power to afford the means of correcting it ? It has been the practice, in the courts of Kentucky, in cases very analogous to the present, for the party desirous of having the error amended when the proceedings are in the appellate court, to suggest a diminution of the record, and ask for a certiorari to the circuit court, to certify the diminution, and apply to the circuit court for leave to amend the proceedings in the mean time, so that, when the certiorari is returned, the error will appear to have been corrected in the court below. In this case, however, such a course, if it had ever been pursued, would have been unavailing, as it is not perceived how the circuit court could have either amended the verdict, or determined what portions of it were the debt, and what the damages, or what sum should have been relinquished. The error being then incurable, the judgment must, for this cause, be reversed, and the cause remanded to the circuit court of Gallatin county, with directions to award a venire de novo. The plaintiffs recover their costs.

Judgment reversed.

       Affirmed in Guild v. Johnson, 1 Scam., 405. Jackson v. Haskell, 2 Scam., 565. Pattison v. Hood, 3 Scam., 152. Heyl v. Stapp et al., id., 95. Frazier v. Laughlin, 1 Gilm., 358. Wilmans v. Bank of Illinois, id., 671. Mager v. Hutchinson, 2 Gilm., 266. Wilcoxon v. Roby, 3 Gilm., 476. O’Conner v. Mullen, 11 Ill., 59. Knox v. Breed, 12 Ill., 61. March v. Wright, 14 Ill., 248. Bowman v. Bartley, 21 Ill., 30.
      In debt on a penal bond, the jury should find the amount of the bond as debt, and the damages separately. The court then renders the judgment for the amount of the debt, to be discharged on the payment of the damages. Frazier v. Laughlin, 1 Gilm., 358. Toles v. Cole, 11 Ill., 563.
      In an action of debt, where the finding is only for a part of the debt due, upon which a judgment is rendered, it is not necessary to specify which part is debt and which is damages; it is all debt. Lucas v. Farrington, 21 Ill., 31.
      Where it can be ascertained from the record what part is debt and what damages, the supreme court will enter the proper judgment. Wilmans v. Bank of Illinois, 1 Gilm., 671.


text:
    Vincent and Bertrand, Appellants, v. Samuel Morrison, Appellee.
    APPEAL FROM ST. CLAIR.
    A special verdict must find facts, not the evidence of facts.
    In a sale of land, where there is no fraud, and the vendee has taken a deed with covenants, the same will be considered a sufficient consideration for notes executed for the purchase money of said land.
    In relation to covenants, the general rule is, that an administrator has no power to charge the effects of his intestate by any contract originating with himself, and his contracts, in the course of his administration, or for the debts of his intestate, render him liable de bonis propriis.

   Opinion of the Court by

Justice Lockwood.

This is an. action of debt on a sealed note, brought by Morrison in the St. Clair circuit court, to recover the sum of $466. The defendants pleaded four several pleas, to which the plaintiff below demurred; and the court decided that all the pleas were insufficient, and thereupon the following order was entered, to wit: “On motion of defendant’s attorney, leave is given to plead on the third Monday of July next, and the cause continued to next term;” at said term, defendants filed four new pleas, which were severally traversed, and issues joined. On the trial, a special verdict was taken, comprising the facts relied on by defendants to bar the action. On the special verdict, the court below rendered judgment for Morrison, and the cause is brought into this court by appeal. A number of errors have been assigned, but the court do not deem it necessary to examine them all in detail. In relation to the first set of pleas, they are of opinion that by the motion to plead generally, they were abandoned, and can not be relied on as subsisting defenses to the action. The second set of pleas, being all traversed, the special verdict presents all the questions that the court are called on to decide.

In order to enable the defendants below to get at their defense, it was necessary for them to prove in what the consideration of the note consisted; all we find in the special verdict on that point, is as follows : “We further find, that on the 4th day of October, 1821, the said S. Morrison and Olive Morrison executed the deed of conveyance for the houáe and lot, to the said Michael Vincent, set forth in the third plea of the said defendants, and that the same was delivered to him, and he accepted it, and that the said note or writing obligatory was made to the said Samuel at the same time, and that they are in the handwriting of the said John Hay.” In relation to special verdicts, it is a general rule that they must find facts, and not merely the evidence of facts. Jac. Law Dict., Title “Verdict.” In this verdict, there is no evidence whatever that the note was executed as the consideration for the deed. It is true that facts are stated, that possibly might have authorized the jury to have presumed the note was given, as the consideration for the deed. But as the jury have not found the fact, it would probably be a stretch of power in the court, if they should conceive the deed and note executed in consideration of each other. As the special verdict is defective, it would perhaps be the duty of the court to send back the case to the circuit court, with directions either to amend the special verdict, if it could be done, or award a venire de novo. Yet as the court, upon an inspection of the whole verdict, are satisfied that plaintiff below is entitled to recover, admitting the fact to exist, that the note was executed in consideration of the execution of the deed mentioned in the pleadings, sending back the case would only be attended with costs, without any benefit to the parties.

The special verdict does not find that Morrison and wife were guilty of any fraud in the sale to Vincent, and the law will not impute fraud to them. In the case of Abbot v. Allen executor of Allen, 2 Johns. Chan. Cases, 159, it was decided by the court of chancery, that “ a purchaser of land, who had paid part of the purchase money, and given a bond and mortgage for the residue, and is in the undisturbed possession, will not be relieved against the payment of the bond, or proceedings on the mortgage, on the mere ground of a defect of title; there being no allegation of fraud in the sale, nor any eviction, but must seek his remedy at law, on the covenants in his deed.” The same point is also decided in the case of N. J. & S. Bumpas v. Platner, Bay and Underwood, 1 Johns. Ch. Cases, 213. In the case under consideration, th'e verdict finds that one of the defendants received a deed from Morrison and wife, which contains a variety of covenants—that Vincent entered into possession of the house and lot, conveyed by said deed, and has continued to live in it ever since, and still is in the possession of the same. Upon the principle decided in the above cited cases, even a court of equity would not relieve, although the title was defective. The party having thought proper to take covenants to secure his title, he must resort to them in the first instance. It was, however, urged on the argument, that the covenants contained in the deed, were not personal covenants, but covenants in the character of agents. In order to ascertain how far it was the intention of Morrison to bind himself by"this deed, it will be necessary to examine the deed itself for the terms of the covenants. By the deed, Morrison and wife, in the capacity of administrators, covenant that the intestate died seized; that said Olive Morrison, administratrix, was duly licensed to make sale of the premises; that it was necessary to sell the same for the purpose of paying the debts of the intestate; that previous to the sale, she took the oath prescribed by law; that she gave public notice in the newspaper printed at Edwardsville, according to the directions of the law in such case made and provided, and of the court; and that one Frangois Olivier Valois offered the most for said premises, which were struck off to him for the sum of four hundred and sixty-six dollars. They also further covenant in their said capacity, that the premises are free from incumbrance, and that they will warrant and defend the same forever, against the claim or demands of all persons in law and equity, and Morrison and wife sign and seal the deed, without the addition of their representative character. Under these covenants, it was urged, that Morrison was not personally liable, but that the assets of the intestate were the only fund which could be reached to pay any damages that might arise from the breach of the covenants in the deed. > That the assets of the intestate can not be bound to answer a breach of the most of these covenants, is apparent from the nature of the covenants. Most of these covenants are, that the administratrix has done her duty as administratrix. If an administrator, in the course of his administration, is guilty of any improper conduct, the estate is not answerable for such malfeasance. In relation to covenants, the general rule is, that an administrator has no power to charge the effects of the intestate, by any contract originating with himself; and it seems from the current of decisions, that his contracts, in the course of his administration, or for the debts of his intestate, render him liable de bonis propriis. The whole doctrine relating to the liability of administrators, covenanting in their capacity of administrators in the sale of real estate, was very elaborately discussed by the supreme judicial court of Massachusetts, in the case of Sumner, administrator v. Williams and Williams, 8 Mass. Rep., 162. In that case, the administrators, in their capacity of administrators, covenanted that, as administrators, they were lawfully seized of the premises; that they were clear of all incumbrances, &c.; that they, in their said capacity, had good right to sell, &c., and that as administrators, they would warrant and defend the premises, and then signed and sealed the deed as administrators. The court held the administrators personally liable for a breach of these covenants. It is to be remarked, that a very material difference exists between the case in Massachusetts, and the one before this court, in this, that in the case in Massachusetts, there Avere no covenants that the administrators had proceeded in all respects according to the directions of the statute which, as the court has before observed, must from their very nature, be personal covenants. The court infer from the pleadings and verdict, that the gist of the defense to the action below, consists either in the fraud of the plaintiff, or a breach of the covenants— on the part of Morrison and wife, that she had proceeded according to law in making sale of the premises mentioned in the deed. In conclusion, therefore, the court are of opinion first, that there was a good consideration for the note, to wit: the deed with covenants; second, that there has been no failure of the consideration, because Vincent received the possession of the premises contracted for, and has remained in the quiet possession thereof, until the trial of the cause; third, that the verdict does not find that any fraud was practiced on the defendants; and lastly, if there has been any breach of any of the covenants mentioned in the deed, it is no bar to this action, but the party must resort to his covenant for damages. The judgment of the court below is affirmed,

Blackwell, for appellants.

Cowles, for appellee.

Judgment affirmed.

       A special verdict, to enable the court to act on it, must find facts, not merely state the evidence. Brown v. Ralston, 4 Rand., 504. Henderson v. Allen, 1 H. and M., 235. Seaward v. Jackson, 8 Cowen, 406. Laframboise v. Jackson, id., 589. Thompson v. Farr, 1 Speers, 93.
      The presiding judge may authorize the jury to find specially on any point arising at a trial. Dyer v. Greene, 10 Shep., 464.
      A special verdict may be found by consent of parties, or by the direction of the judge, or at the discretion of the jury, but can not be claimed of right by one party. Thompson v. Farr, 1 Speers, 93.

       The principle is well settled, that where a suit is brought on a note, a plea that the consideration of the note was an agreement to convey certain lands—that the conveyance has not been made, and that the payee has no title to the land, is a good defense to the note. Tyler v. Young et al., 2 Scam., 444. Mason v. Wait et al., 4 Scam., 135. Gregory et al. v. Scott, id., 393. Duncan et al. v. Charles, id., 566. Hall v. Perkins, id., 549. Davis v. McVickers, 11 Ill., 329. But where the conveyance lias actually been executed, it is not by any means clear that such is the rule. In New York, (and this appears to be the rule in most of the states,) if a purchaser who has a deed containing the usual covenants, has been evicted, he may, in an action by the grantor for the purchase money, show the eviction as a defense to the suit. Lamerson v. Marvin, 8 Barbour’s S. C. Rep., 11, and cases there cited. Hoy v. Talieferro, 8 Smedes and Marshall, 727. Clark v. Snelling, 1 Carter, 382. Wilson v. Jordon, 3 Stewart and Porter, 92. Rawle on Covenants for Title, 652. Where, however, there has been no eviction, though the evidence shows a want of title in the grantor at the time of making the conveyance, it is not so well settled, and the authorities are conflicting. Frisbie v. Hoffnagle, 11 Johns., 50, was one of the first prominent cases on this subject. In that cáse the defendant, in an action on two notes given for the purchase money of land sold with covenants of warranty, proved that the land had subsequently been sold under a judgment against the plaintiff, and a sheriff’s deed made .to the purchaser, but the defendant had not been actually evicted or disturbed in his possession. The court said: “ The consideration for the note has entirely failed, for the defendant has no title, it having been extinguished by the sale under the judgment. Here is a total, not a partial failure of consideration; for although the defendant has not yet been evicted by the purchaser under the sheriff's sale, he is liable to be so, and will be responsible for the mesne profits.” This decision, it is said, has been repeatedly overruled; but the principal objection to it has been that there was no eviction. It was however approved in James v. Lawrenceburg Ins. Co., 6 Blackford, 525, and Cook v. Mix, 11 Conn., 438. In Scudder v. Andrews et al., 2 McLean C. C. Rep., 464, McLean, J., said: “If the plaintiff had no title or claim to the land, which is asserted by the plea and admitted by the demurrer, the defendant has a right to set up that fact as a defense to an action on the note. Why should he be driven to his action on the warranty, if a warranty deed were given, of which, however, there is no evidence ? ”
      In Tallmadge v. Wallis, 25 Wendell, 113, Walworth, Chancellor, said: “ The question whether a total failure of title, upon a conveyance with warranty, is a, good defense to a suit upon the notes given for the purchase money, is one upon which judges have entertained different opinions.” Again, after speaking of an actual eviction so that the claim to damages would be equal to the full amount of the,purchase money: “ In such a case I can see no good reason why the defendant, to avoid circuity of action, should not bo permitted to plead such total failure of consideration as an absolute bar to the suit, in the same manner as if the note or bond had been given upon the sale of a horse warranted sound, which turned out to be unsound and entirely valueless.”
      On the other hand, in Lamerson v. Marvin, 8 Barbour’s S. C. R., 11, it was held, that as the defendant had received the possession from his grantor, and still retained it, until he had been evicted or compelled in some way to recognize the title of the person in whom it was alleged to be, he should not be permitted to draw in question the title of his grantor, Rawle says, in Covenants for Title, 652, after reviewing the New York decisions: “From the foregoing cases, it would seem to be settled in New York, that unless there has been an eviction, actual or constructive, of the whole subject of the contract, no defense to payment of the contract price can be set up in a plea in bar.” The cases referred to in the opinion of Judge Lockwood, and in the note of Judge Brebse, are to the same effect.

        See also Dix v. School District, 22 Vermont, 316. Oldfield v. Stevenson, 1 Carter, 153. Clark v. Snelling, id., 382. Wheat v. Dobson, 7 Arkansas, 699.
      In oar own courts the question was raised once incidentally and once directly, since the decision of the case of Vincent and Bertrand v. Morrison. In Furness v. Williams et al., 11 Ill., 229, in an action brought to recover the purchase money, the defendant pleaded that a part of the land conveyed had been sold for taxes— that the time of redemption had expired—and that therefore the consideration to that extent had failed. Tkeat, C. J., said: “ On every principle of correct pleading, he, (the defendant,) is bound to set forth the proceedings under which the lot was sold, so that the court can see that the covenant has been broken; or he must make the general averment that the sale was legally made, and the title thereby divested.” Probably we might infer from this, if the matter had been properly pleaded, the court would have held it a good defense; but the question not being directly before them, no further opinion is expressed by the court.
      The other case referred to is, Slack v. McLagan, 15 Ill., 242. There the cjurt held it a “ sufficient defense to an action upon a note to set up a breach of a covenant of warranty in a deed of land, for the price of which the note was given.” The opinion of the court was delivered by Scates, Justice, and in it no allusion is made to the case of Vincent and Bertrand v. Morrison, and the only authorities referred to are Gregory et al. v. Scott, 4 Scam., 392, and Tyler v. Young et al., 2 Scam., 446. These two cases we respectfully submit, do not sustain the position of Judge Scates. In each case no conveyance had been made; the defendants held only bonds for title, and the pleas alleged that the titles were defective, or that the plaintiffs had no title, and therefore the consideration of the notes sued on had failed. We have before attempted to show that in such cases our courts have invariably held it a good defense; but in none of those cases, except the case of Slack v. McLagan, has the question under consideration been decided by them. We therefore assert, from this review of the authorities, that it is not a settled principle, that such defense can be made where there has been a conveyance with covenants of warranty, and no eviction.

         Where a special verdict is imperfect by reason of any ambiguity or uncertainty, so that the court can not say for which party judgment ought to be given, a venire de novo should be awarded. 2 Mason, 31. 11 Wheat., 415.
      Where a promissory note is given for the purchase of real property, the failure of consideration, through' defect of title, must be total, to constitute a good defense to an action on the note. Greenleaf v. Cook, 2 Wheat., 13.
      Any partial defect in the title is not inquirable into in an action on the note in a court of law, but the party must seek relief, if any where, in chancery. Ibid.

      The guardian of an insane person who had given promissory negotiable notes for the proper debt of his ward, and expressed in the notes that he did it as his guardian, was held bound in Ms private capacity. Thatcher v. Dinsmore, 5 Mass. Rep., 299.
      If a deed contain the usual covenants, the vendee can not set up either a partial or total failure of title against the vendors’ suit for the purchase money. Phelps v. Decker, 10 Mass. Rep., 279. So in Maine, 1 Greenleaf, 352.
      In Pennsylvania and South Carolina a defect in the title or quality of the land may be given in evidence against a demand upon a bond or note for the consideration money of the deed. 1 Searg. and Rawle, 438. Hart v. Porter, 5 ibid., 204. Thompson v. McCord, 2 Bay, 76. Sumpter v. Welch, ibid., 558.
      A covenant by an executor on a conveyance of land of Ms testator, in his capacity of executor, “ and not otherwise,” is not binding on him in Ms individual capacity, although it may not be binding on the estate of the testator. Thayer v. Wendell, 1 Gallison, 37. Coxe’s Dig., 219.


text:
    Wm. C. Greenup and Clement C. Conway, Plaintiffs in Error, v. Philander Woodworth, Defendant in Error.
    ERROR TO RANDOLPH.
    In an action on a judgment against administrators, suggesting a devastavit, a judgment by default admits the truth of the allegations in the declaration, and a jury of inquiry is not necessary to ascertain the damages.
   Opinion of the Court by

Chief Justice Wilson.

This is an action of debt against the plaintiffs in error, upon a previous judgment against them as administrators. The declaration sets forth the previous judgment against them, and alleges that goods and chattels to the amount of said judgment came to their hands to be administered, and that they wasted them. Judgment was suffered to go by default, the court ascertained the amount of interest, and rendered judgment for the principal, interest and costs. The rendition of this judgment is assigned for error. The plaintiff’s counsel contends, that a jury ought to have been impanneled to ascertain the amount of assets that came to their hands, and also the fact of a devastavit. These are certainly material allegations in the defendant’s declaration, and if the plaintiffs here, had, by their pleadings, traversed them, the intervention of a jury would have been necessary. This, however, they have not done. The judgment by default, then, admits their truth, and must conclude them. Upon a judgment by default, in an action of assumpsit, or covenant, it is usually necessary to have a jury to inquire of damages, but it is never necessary upon a default in an action of debt, unless required by the plaintiff. In this form of action, the plaintiff recovers the sum in numero, and it is the constant practice of the court to tax the damages occasioned by the detention, as well as the costs of suit. 6 Johns. Rep., 287. The court is therefore of opinion that there ivas no error in the court below, and that the judgment be affirmed with costs.

Yowng, for plaintiffs in error.

Baker, for defendant in error.

Judgment affirmed.

       See note to Biggs et al. v. Postlewait et al., ante, p. 198.


text:
    Jonathan Cobb, Plaintiff in Error, v. D. Ingalls, Defendant in Error.
    ERROR TO MORGAN.
    Motions, demurrers, &c., should be determined by the court, in the order in which they are made, and a demurrer, while a motion to dismiss is undisposed of, is a waiver of the motion, and a plea of the general issue, the demurrer being undisposed of, is a waiver of the demurrer.
   Opinion of the Court by

Justice Smith.

Three grounds are relied on by the plaintiff in error, for the reversal of the judgment of the circuit court :

1. That the motion to dismiss the cause ought to have been acted on by the circuit court;

2. That permitting the plaintiff to amend his declaration, before acting on such motion, was erroneous;

3. That the court should have decided the demurrer before the issue in fact was tried.

The untechnical manner in which the record has been made up is calculated to lead to some confusion in the examination of the real merits of this case. As far, however, as we can give to it a fair interpretation, it would seem that the defendant, without assigning any grounds for cause of dismissal, upon the plaintiff’s being permitted to amend his declaration, abandoned his motion, and filed a general demurrer, and without insisting on a decision of'the demurrer, filed a plea of the general issue. We can not doubt that this demurrer to the declaration was a waiver of his motion to dismiss the cause, but whether it was or not, the grounds of that motion, not appearing on the record, can not, of course, be inquired into. By pleading in chief the general issue, the defendant equally waived his demurrer. If the causes of demurrer were thought by his counsel to have been sufficient, a decision on the demurrer should have been insisted on. Had the court refused, as was suggested on the argument, to decide the questions raised by the demurrer, the defendant should have rested his case, and not have plead to the merits. The court would then have been compelled to decide the question of law, and the defendant, if not satisfied therewith, .would have had the opportunity of having that opinion reviewed in this court. He, however, thought proper to waive that right, and thereby conclude himself by a trial on the merits. The jury rendered a verdict against him, and as there is no irregularity therein, we are bound to say that the judgment of the circuit court must be affirmed with costs.

Judgment affirmed.

       See note to Beer et al. v. Philips, ante, p. 44.


text:
    William Clary, Appellant, v. Thomas Cox, John Durley, and Thomas M. Neale, Appellees.
    APPEAL FROM SANGAMO.
    It is too late, after a judgment has been rendered on a bond, and fieri facias issued, to object that the party did not sign the bond. It is therefore erroneous to quash an execution issued on such judgment upon an affidavit affirming the non-execution of the bond.
   Opinion of the Court by

Justice Smith.

The only point made in this cause is, whether the circuit court erred in quashing the execution as to one of the defendants, upon his disclosure, by affidavit, of his belief that he did not execute the bond given, upon the granting of the writ of certiorari. This bond may be considered as analogous to the bond given, when an appeal is taken from the decision of a magistrate; and the circuit court seem so to have considered it, and entered up a judgment against the principal and' the securities in the bond, upon which judgment the execution against the defendants was issued, as is provided in the case of appeals, by the provisions of the sixth section of the act defining the duties of justices of the peace and constables, approved 18th February, 1823. It is not necessary to consider what the circuit court might have done, upon an application to have the judgment vacated, if they had. been satisfied of the truth of the facts contained in the affidavit of Durley, one of the defendants, or what would have been the powers of the court in reference to such an application. The execution, it is not pretended, does not follow the judgment, nor is any regularity on its face complained of. The matters disclosed, relate to the non-execution of the bond only; it was therefore manifestly erroneous for the circuit court to have quashed the execution for the causes alleged. Until the judgment was set aside or vacated, the execution was entirely regular: the party has mistaken his remedy, if he has one. The judgment of the circuit court in quashing the execution must, therefore, be reversed, with leave to the plaintiff, in the court below, to sue out a new execution, if necessary; he is also entitled to costs.

Judgment reversed.

         “ Appeals from the judgment of justices of the peace shall be allowed, &c., provided the party shall first give a bond as is required by the second section of the act entitled “An act regulating appeals from justices of the peace, and further defining their duties,” which bond so given shall have the force and effect of a judgment, and execution may be issued thereupon upon default of the condition of the said bond; a certificate of such bond having been given, shall be presented to the justice from the clerk of the circuit court; whereupon it shall be the duty of the justice to make out a transcript,” &c. Laws of 1823, page 189; section 6.


author: Per Curiam.

text:
    Wiley B. Green, appellant, v. Murray M’Connell, appellee.
    APPEAL FROM MORGAN.
    If the transcript of the record is not filed within the time required by law, and the rules of the court, the appeal will be dismissed.

      W. Thomas, for the appellee,
    on the 6th of December, being the fourth day of the term, filed the transcript of the record in this cause, and moved the court to dismiss the appeal, on the ground that the appellant had failed to file the record within the time required by law, and cited Rev. Laws of 1827, page 319, and the 12th Rule of this court.
   Per Curiam.

The appellant having failed to file a transcript of the record, within the time required by the 12th rule of this court, it is considered that the appeal be dismissed, and that a copy of this order be certified to the clerk of the Morgan circuit court, and that the defendant recover his costs.

Appeal dismissed.

       See note to Bebee v. Boyer, post.


author:
      Justice Smith.
      Chief Justice Wilson.

text:
    The County Commissioners of Randolph County, Plaintiff, v. Michael Jones, Defendant.
    AN AGREED CASE FROM RANDOLPH CIRCUIT COURT.
    An agreement to pay the county commissioners of Randolph county a certain sum of money, provided they will build a court-house on a particular lot, is not binding for want of mutuality, although they do build the court-house on the lot designated, the obligation to pay and to build not being reciprocal.

    A promise to pay the county commissioners to do an act which they are required to do by law, is against public policy, and therefore void.
    The county commissioners of a coimty have no power to contract only as a court.

       Where a statute fixed the seat of government at Springfield, on condition that the inhabitants of Springfield should subscribe a certain sum of money towards erecting a state-house, and execute their bonds for the payment of the same: Held, that a bond given under such statute was founded on a sufficient consideration, and was valid. Carpenter v. Mather, 3 Scam., 374.
      Where several persons sign a subscription paper, payable to a portion of their number, as trustees, whereby each one agrees to pay the sum set opposite his name, for the purpose of erecting a building, and the work is doiie by a mechanic, an action may be maintained by the trustees against any subscriber who refuses to pay his subscription. Robertson v. March et al., 3 Scam., 198.
      In the last case referred to, the court make a distinction between that and the case of Co. Com’rs, &c., v. Jones, but do not question that decision.

       The same principle held in County of Vermilion v. Knight, 1 Scam., 97.

   Opinion of the Court by

Justice Smith.

This is an agreed case, and is submitted to the decision of this court by the following agreement:

“It is agreed by the parties in this suit, that a transcript of the record in this cause be taken to the supreme court for a decision of this question: Whether the instrument set forth in any count of the declaration, can be made the foundation of an action at law, taking all the statements and averments in the said counts to be true ?

If decided in the affirmative, then judgment to be entered up in this court at the next term, for the amount of Jones3 subscription, and costs accordingly. If decided in the negative, then the said suit to be discontinued, and that the respective parties enter their appearance at the next term of the supreme court.33

The instrument declared on is in the following words:

“We, the subscribers, promise to pay to the county commissioners of the county of Randolph, or their successors in office, the sums annexed to our respective names, at such times, and in such proportions, as the said county commissioners shall require, for the purpose of defraying, in part, the expense of a court-house for the county of Randolph: provided, the said court-house shall be located and erected on a lot proposed to be granted to the said county by the Hon. Nathaniel Pope.”

The several counts in the declaration allege the consideration to have been the erection of the court-house on the proposed lot, and aver that the lot was granted to the commissioners—that the court-house was erected on the lot—and that the defendant was owner of lots and houses contiguous to such court-house; and assigns the breach a refusal to pay on demand.

The questions which present themselves for consideration, in determining th# validity and effect of the writing, seem to divide themselves into three distinct propositions:

1. The authority of the commissioners to enter into the agreement, or to accept one of its character ?

2. If they might legally do so, is the agreement mutual, or the obligation to pay, and to erect the building on the lot granted, reciprocal ?

3. Is there a sufficient consideration to support a promise ?

The authority of the commissioners to erect the courthouse, is derived solely from the act of the 24th March, 1819. It is made their duty, by the second section of that act, to cause to be erected a suitable court-house in their county, and where the county funds are insufficient for that purpose, they are required to levy a tax, and collect it agreeably to the act creating a revenue for this state. They are also authorized by the same section, to enter into contracts for the erection thereof, at any regular or special term of their court which they may appoint for that purpose. Have they pursued the powers thus granted to them ?

Their authority would certainly seem to be confined to entering into contracts with individuals, for the performance of the workmanship of the building, not for the purpose of raising a fund to defray the expense thereof, because such expense is to be paid out of the fund they are authorized to raise by taxation.

The law granting the power to erect the court-house, and making it compulsory on them so to do, gave the only power to raise the means to defray the expense thereof; and by so designating the power, would seem to exclude all other modes. It can not be contended that the act has in any of its parts, recognized the authority to receive gratuities or donations, for the purpose of forming a fund, out of which the commissioners are to discharge the debts which they might incur for the erection of the building. It is true, they are, nowhere forbidden, and although they might, with propriety, receive the donation of money for such an object, the inquiry whether a court of justice can legally enforce such an obligation, where the court are not authorized by law to enter into one of such character, is certainly a very different question.

To show more clearly that the second section of the act could not possibly authorize an agreement of the present character, the power to enter into the contract is to be exercised only at a regular or special term of the county commissioners’ court. Here, it is evident, from the terms of the agreement, that the commissioners did not conceive themselves acting under that section, nor even as a court. If they had, they would most certainly have required the proposition to have been made at the sitting of the commissioners’ court, and had it entered on their record; but instead of that, it is a mere agreement with the commissioners by that name, and really, one which they had no power to enter into out of court. The acceptance and assent of the commissioners to the agreement is their own act, which, in their character as commissioners, they had no power whatever to agree to, for it will not be denied, even admitting that they had no power in term time to agree, that out of term they have any authority to do any act whatsoever not expressly conferred on them by law. None having been conferred on them, it most clearly follows, that their act is altogether extra-judicial and void.

On the second point, the inquiry is presented, whether the agreement is mutual, or in other words, whether the obligation to pay and to erect the building, is reciprocal. For the reasons already stated, it will be perceived that no obligation was imposed on the county to erect the building on the lot proposed, and that neither the commissioners in their official or individual capacity, nor the county, could in any way be rendered liable for a refusal to do it. The obligation is neither mutual or reciprocal; it is a promise by one party only. No engagement of any character whatever is made to erect the building. The act is altogether on one side. Reverse the case, and suppose an action brought against the county for not erecting the building, could it be insisted that the county would have been at all liable for the assent of their commissioners under this agreement, if it were possible to suppose, from the writing, that such assent was given, and could it be liable even if agreed to, when the commissioners exceeded the powers and jurisdiction given to them by law ? Clearly not. It is certain that to every valid contract there must be parties capable of contracting. Were the commissioners capable of contracting in the manner stated ? If not, then there is an end to the .question. They could only contract in the manner authorized by law. This manner, most clearly, has not been pursued.

The law did not embrace the subject matter in the manner contracted for, if it be admitted that a contract was made, nor has the mode prescribed by law been observed. It therefore follows: First, that there is no evidence of a contract on the part of the county by their commissioners, and that therefore there is no mutuality of consideration, which is necessary to every contract. Second, that the commissioners had no power to bind the county in such a contract, and that they were bound by law to erett a courthouse.

Third, That a promise to them to pay money for the performance of an act they were obliged to execute by law, in the faithful discharge of their official duties, is illegal and against public policy, and therefore void. To the third question, whether there is sufficient consideration to support a promise, it is not perhaps necessary to say more than this, that the act of erecting a court-house, which was a duty imposed by law, could not be a consideration to support a promise. The fact of its location near the lands of the defendant, is of course the only ground upon which it could be contended that a consideration could be raised, and even this vanishes, when it is perceived that such a consideration is altogether equivocal and imaginary. It might or might not be of value to the defendant. No data can be assumed, by which it can be determined whether the erection of the building at the place proposed could benefit the defendant one cent or one hundred and twenty-five dollars, the amount of the subscription, nor whether it might not be an injury. It is not shown that any benefit has been experienced by the defendant from its location, nor injury sustained by the commissioners.

The consequences resulting from its location may have been an injury to other portions of the inhabitants, and upon the ground of public policy it is very questionable whether the court ought not to decide the contract void, for that reason alone.

I am of opinion that the present action can not be sustained on the writing set forth, and that the agreement of the parties to discontinue the suit, be'carried into execution,

T. Reynolds, for plaintiff.

Baker, for defendant.

Separate opinion of

Chief Justice Wilson.

I concur in the opinion that the agreement of the parties to discontinue this suit be carried into execution, but my opinion is founded upon the single objection, that it does not appear that the contract upon which suit is brought, was entered into by the county commissioners as a court; it is only in that character they are capable of contracting.

         Turn. Cor. v. Collins, 8 Mass. Rep., 298. Trustees of Phil. Lim. Academy v. Ezra Davis, 11 Mass. Rep., 113. See Religious Society in Whitestown v. Stone, 7 Johns. Rep., 112.

       Justice Lockwood gave no opinion.


text:
    Nance, a girl of color, Plaintiff in Error, v. John Howard, Defendant in Error.
    ERROR TO SANGAMO.
    Registered servants are goods and chattels, and can be sbld on execution.

    A poll tax is inhibited by the constitution of this state.

      •1) As the present constitution of this state does not permit slavery within the state, this decision is now of but little practical importance. The following points have, however, been decided by our courts, on the subject of slavery, some of which are of interest to the profession.
      The constitution of Illinois prohibits slavery; therefore, negroes within its jurisdiction are presumed to be free. Rodney v. Illinois Central Rail Road Co., 19 Ill., 42. Bailey v. Cromwell et al., 3 Scam., 71. Kinney v. Cook, id., 232.
      A contract made in Illinois for the sale of a person as a slave, who is at the time in the state, and to a citizen of the state, is illegal and void. Trumbull, Justice, in Howe v. Ammons, 14 Ill., 29.
      Slavery is the creation of municipal regulations in states where it exists, and such regulations have no extra-territorial operation or binding force in another sovereignty. Rodney v. Ill. Cen. R. R. Co., supra.

      The laws of other states recognizing slavery, being repugnant to the laws and policy of the institutions of Illinois, neither the law of nations, nor the comity of states, can affect the condition of a fugitive in Illinois, so as to give the owner any property in, or control over him, by force of any state authority. Ibid.

      The remedy in matters connected with fugitive slaves, is to be found under acts of Congress, and in the courts of the United States. Ibid.

       The present constitution of Illinois has the following provision: “ The general assembly may, whenever they shall deem it necessary, cause to be collected from all able-bodied free white male inhabitants of this state, over the age of twenty-one years and under the-age of sixty years, who are entitled to the right of suffrage, a capitation tax of not less than fifty cents, nor more than one dollar each.” Article 9, sec. 1, Constitution of 1848.

   Opinion of the Court by

Justice Lockwood.

The point presented to the consideration of the court in this case, is whether a registered servant is liable to be taken and sold on executurn ? By the act concerning judgmenss and executions, approved January 17,1825, “ all and singular, the goods and chattels, lands and tenements and real estate” of a judgment debtor, shall be liable to be sold on execution. The phrase, goods and chattels, means personal property in possession.

Before entering on this subject, it is necessary to lay down the true rule in relation to what kinds of property ought to be subjected to seizure and sale on execution. The dictates of honesty, as well as sound policy, require, as a general rule, that every description of tangible property of the debtor, should be liable to pay his debts, unless it be such articles of the first necessity, that the legislature, from motives of humanity to persons who have families, may reserve for their use. And such doubtless was the intention of the legislature, when they declared, that all and singular the goods and chattels, lands and tenements and real estate,” shall be sold on execution. The legislature, however, pursuing the dictates of an enlightened humanity, have, by the 19tli section of the above recited act, reserved for the use of families, a variety of articles of personal property of the first necessity, from sale on execution. But registered servants are not among the reserved articles. Are then registered servants, goods or chattels, within the meaning of the statute ? This is a question of mere dry law, and does not involve in its investigation and decision, any thing relative to the humanity, policy, or legality of the laws and constitution, authorizing and recognizing the registering and indenturing of negroes and mulattoes.

In order to ascertain the nature of the interest that the master possesses in his registered servants, it will be necessary to review the several statutes that have been passed by the legislature concerning them.

The first act, giving character to the interest of the master, is “ An act concerning executions,” passed 17th of September, 1807 ; the 7th section thereof recites, and whereas, doubts have arisen whether the time of service of negroes and mulattoes, bound in this territory, may be sold under execution,” it was therefore enacted “ that the time of service of such negroes and mulattoes may be sold on execution,” &c. This section, taken in connection with its preamble, must be considered eñs declaratory of what the law was, rather than introductory of a new rule. On the same day an act was passed subjecting bound servants,” with a variety of personal property, to taxation. By the third section of the “ act concerning servants,” passed also on the 17th of September, 1807, the benefit of the contract of service may be assigned by the master, with the consent of the servant, and shall pass to the executors, administrators and legatees of the master.

These three acts are all the statutes that have been found passed by the territorial legislature. These acts can bear no other construction than that the legislature considered this description of servants as property, for they rendered them liable to sale on execution, to be assigned by their masters with their consent, to pass to executors, administrators and legatees, and to taxation. By the 20th section of the 8th article of the constitution of this state, it is declared, “ that the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession.” A poll tax would seem from this feature in the constitution to be inhibited. The legislature, however, it will be seen, by examining their several acts relative to revenue, have invariably taxed servants, not by poll, but “by valuation.”

I refer to the acts passed 27th of March, 1819, 18th of February, 1823, and the 19th of February, 1827. The 15th section of the last mentioned act, and which is the law now in force for “raising a revenue,” is as follows: “ Whenever, in their opinion, the revenue arising to the county from the tax on lands shall be insufficient to defray the county expenses, the county commissioners’ court shall have power to levy a tax, not exceeding one-half per cent., upon the following descriptions of property, viz: On town lots, if such lots be not taxed by the trustees of such town, on slaves and indentured or registered negro or mulattoe servants, on pleasure carriages, on distilleries, on stock in trade, on all horses, mares, mules, asses and neat cattle, above three years of age, and on watches with their appendages, and such other property as they shall order and direct.” By this act, registered servants are expressly denominated property. Each of the execution laws, passed March 22d, 1819, and 17th of February, 1823, contain the following provision, to wit: “ That the time of service of negroes or mulattoes, may be sold on execution against the master, in the same manner as personal estate; immediately from which sale, the said negroes or mulattoes shall serve the purchaser or purchasers for the residue of their time of service.”

There is, however, no such provision in the act relative to executions passed 17th of January, 1825, and which act repeals all former acts; and hence it is argued that the legislature intended in future that registered servants should not be subject to seizure and sale on execution. This inference would no doubt be correct, if these servants were only made liable to execution by express enactment of the legislature, but from the review of the legislation in relation to indentured and registered servants, 1 am inclined to the opinion that" the legislature have always regarded them as property, and that the object of the legislature in expressly authorizing them to be sold on execution, was not to introduce a new rule, but to remove “doubts” that had arisen on the subject. If, then, the statutes concerning executions are only to be considered as declaratory of what the law was, then the omission of a similar provision in the act of 1825, can not be deemed decisive of the intention of the legislature. The intention must, therefore be sought in the “ several acts in pari materia and relating to the same subject.”

All these acts ought to be taken together, and compared in the construction of them, because they are considered as having one object in view, and as acting upon one system. This rule applies, though some of the statutes may have expired, or are not referred to in the other acts. 1 Kent’s Com., 433. By the 22d section of the act concerning attachments,” passed 24th of January, 1827, authority is given to the sheriff, when he “ shall serve an attachment on slaves, or indentured or registered colored servants, or horses, cattle or live stock,” to provide sufficient sustenance for the support of such slaves, indentured or registered colored servants and live stock, until they shall be sold or otherwise legally disposed of, or discharged from such attachment.”

There is no express provision in this statute to authorize a levy and sale of registered servants, but from this section no doubt can exist that the legislature acted upon the supposition that registered servants were regarded as property which might be seized and sold. And no good reason is perceived why these servants should be liable to attachments, and not be liable to sale on executions obtained by the ordinary prosecution of a suit. The proceeding by attachment, and by a common action, are intended to effect the same object, to wit: the sale of the debtor’s property, in order to pay the creditor his debt. I have, therefore, come to the conclusion that indentured and registered servants must be regarded as goods and chattels, and liable to be taken and sold on execution. In support of this opinion, I refer to the case of Sable v. Hitchcock, 2 Johns. Cases, 79.

That case was this. In the state of New York they have an act by which, in order to prevent the further importation of slaves into that state,” it is enacted “ that if any person shall sell as a slave within that state, any negro, or other person who has been imported or brought into that state after the first of June, 1785, he shall be deemed guilty of a public offense, and forfeit ¿6100, and the person so imported or brought into that state, shall be free.” The plaintiff had been imported into New York* after June, 1785, and after the death of the plaintiff’s master, she was sold by her master’s executors to defendant, against whom she brought her action to recover her freedom. The supreme court of that state decided, (and the decision was affirmed by the court of errors,) that a sale in the course of administration or by persons acting in auter droit, as executors, assignees of absent or insolvent debtors, sheriffs on execution, and trustees, would not be within the act, so as to subject the vendors to the penalty, or make the slave free. Judge Kent in delivering his opinion says, “ while slaves are regarded and protected as property, they ought to be liable to an essential consequence attached to property, that of being liable to the payment of debts. If it is otherwise, the debtor is possessed of a false token, and the creditor is deceived.” The analogy between the cases exists in several respects.

The masters, in each case, are, by law, secured in the services of the servants, in the New York case for life, and in this case for a period of years, but in each case the services are general and not restricted or limited to any particular trade or business. In neither case did the services arise out of any contract, or with reference to any special confidence reposed in the masters.

They were both slaves in the states from whence they were imported, and their services were held in the same manner that the services of absolute slaves are held, for the masters were entitled to all the fruits of their labor. The rights of the masters had no reference to the benefit of the servants ; hence they are in every essential particular personal property, and subject to most of its attributes and liabilities.

McRoberts, for plaintiff in error.

Cavarly, for defendant in error.

The only difference perceived between the two cases, is, that Sable, upon being brought into New York, became a servant for life to her master, but not subject to transfer and sale by the act of her master, with or without her consent. But Nance, upon being brought into the territory of Illinois, and being registered, became a servant to her master until she should arrive “ at the age of thirty-two years,” and she is, by law, liable to be sold by her master upon her giving her consent in the “ presence of a justice of the peace.”

This difference can not operate to exempt 'Nance from the rule applied to the case of Sable, and particularly as this very difference regards Nance more in the light of property than it does Sable.

A sale by Sable’s master, with or without her consent, would operate to emancipate her. Upon the whole, the court is of opinion that the judgment of the circuit court must be affirmed with costs.

Judgment affirmed.

       Laws of 1825, p. 151.

       Rev. Code of 1807, page 188, vol. 1.

       Rev. Code of 1807, vol. 2, page 647.

       Rev. Laws of 1827, p. 39.

       Laws of 1819, p. 313, sect. 3.

       Laws of 1823, p. 203, sect. 3.

       Rev. Laws of 1827, p. 331.

       Laws of 1819, p. 181, sect. 13.

       Laws of 1823, p. 173, sect. 9.

       Laws of 1825, p. 151.

       Rev. Code of 1827, p. 76.


text:
    Fanny, a woman of color, Appellant, v. Montgomery and others, Appellees.
    APPEAL FROM FAYETTE.
    Where the defendant in an action of trespass, assault and battery and false imprisonment, justifies under a certificate granted by a justice of the peace in pursuance of the act of congress respecting fugitives from labor, the plea must show that all the facts existed at the time of granting the certificate contemplated by that act.
    The plea should also state affirmatively, to whom the certificate was given, whether the person claiming the fugitive, or his agent, and if the agent, his name.
   Opinion of the Court by

Justice Lockwood.

This is an action of trespass, assault and battery and false imprisonment, brought to try the plaintiff’s right to freedom. The defendant plead in bar that plaintiff and others were taken before a justice of the peace in and for Bond county, as a person- held to labor and owing service in the state of Kentucky, to John Housten, and that the justice of the peace, upon proof to his satisfaction that the said Fanny with others, did owe service or labor to said Housten, in Kentucky, according to the laws thereof, and that the said Fanny and others, were fugitives from the service of him, the said Housten, Ac., did in pursuance of the constitution and laws of the United States, grant a certificate to said Housten, or his attorney, to have and take said Fanny, and that he take her where she belonged. Defendants further say that after the granting said certificate, and while it was in force, they assisted said Housten, or his attorney, to take said negroes, for the purpose of removing them as authorised by said certificate, they having no interest whatever in said negroes ; that no more force was used than necessary, and that this is the same trespass mentioned in the declaration, and which said certificate the defendants have now in this court, ready to be produced, Ac. To which plea the plaintiff demurred, and on joinder therein by defendants, the circuit court sustained the plea and gave judgment for defendants, and thereupon an appeal was taken to this court. A great number of errors have been assigned. I shall only, however, notice such of them as I deem important to the decision of the case as presented by the record. The first error assigned is, that it does not appear from the plea that the justice, in granting the certificate, had jurisdiction.

No principle in pleading is better settled than that where a party justifies under a power derived from an inferior court or magistrate, that he must show that such court or magistrate had jurisdiction of the subject matter. The authorities to this point are so numerous that it is unnecessary to cite them. Does it then appear from this plea that the justice had jurisdiction of the case ? The third section of the act of congress referred to in the plea, declares That when a person held to labor in any of the United States, or either of the territories, on the northwest or south of the river Ohio under the laws thereof, shall escape into any other of the said states or territories, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and take him or her, before any judge of the circuit or district courts of the United States, residing or being within the state, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof, to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken and certified by a magistrate of any such state or territory, that the person so seized or arrested, doth, under the laws of the state or territory from, which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be a sufficient warrant for removing the said fugitive from labor, to the state or territory from which he or she fled.” In order to give a magistrate jurisdiction under this act, it ought to appear that the person apprehended as a fugitive slave had escaped from the state or territory where the labor or service is due, into the state or territory where he or she is apprehended, and that proof, either by oral testimony or affidavit, be exhibited, that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labor to the person claiming him or her.

It does not appear from this plea that Fanny had escaped or fled from Kentucky; the allegations being that she was taken, &o., as a person held to labor and owing service in the state of Kentucky, to Housten. This is not sufficient, for the authority conferred to take and arrest fugitives from labor or service, is only granted where the fugitive has fled, or escaped from the service of his or her master.

But the plea is still more fatally defective in not stating that the proof was, that she now owes service and labor in Kentucky.

The words of the act are, doth owe service or labor. The proof exhibited may be true, that she did owe service, and yet show no right to her present service, for that service may long since have terminated; and, consequently, she would not be liable to be taken and carried back to Kentucky.

Under the attachment laws, an affidavit that a debtor hath absconded, being in the past tense, is insufficient; and such an error has been decided to render an attachment irregular, and all proceedings under it void. I consider the first assignment of error well taken and sufficient to reverse the judgment, but as this case will have to go to the circuit court again, I think it better to notice some of the other errors assigned. The seventh error assigned is, that the plea does not set forth to whom the certificate was given, but is in the alternative. The language of the plea is, that the certificate was granted to “ Housten or his attorney,” without naming who the attorney was. This, I think, altogether too uncertain ; it ought to have shown affirmatively to whom it was granted, and if granted to an attorney, who that attorney was. The plea is therefore bad in this respect. The ninth error assigned is, that it is not stated that either of defendants assisted Housten or his attorney, or that they acted under any legal authority. The words of the plea are, “ that defendants assisted Housten or his attorney, to take said negroes.” Who did they assist ? Housten, or his attorney ? and if the attorney, who was that attorney ? The plea does not answer this plain interrogatory with any kind of certainty; it is, therefore, too uncertain in this respect.

Hall and Cowles, for plaintiff in error.

McRoberts, for defendants in error.

For these and other reasons, I am of opinion that the judgment must be reversed, with costs, and remanded to the Fayette circuit court, with liberty to defendants to amend their plea, upon payment of the costs occasioned by the plea.

I have not deemed it necessary in making up an opinion in this cause, to give an opinion on the question, how far a certificate which is good, prima facie, can be inquired into. Whether such a certificate would be final and conclusive, does not arise on this plea. We are not required, from the state of the pleadings, to go into any such inquiry; on this point, therefore, I forbear; for “ sufficient unto the day is the evil thereof.”

Judgment reversed.

         Rev. Code of 1829, p. 242.


text:
    Finley and Creath, Plaintiffs in Error, v. John Ankeny, Defendant in Error.
    ERROR TO JACKSON.
    When the •circuit court, sitting as a court of chancery, grants a re-hearing, the first decree is thereby vacated, and the case stands as if no decree had been rendered in the cause.
    After the time of the replevy of a judgment has expired, the plaintiff may, if he chooses, proceed on Ms original judgment without issuing against the security in the repjevy.

       This law is now repealed by statute.

   Opinion of the Court by

Justice Lockwood.

This case presents the following facts. Judgment was obtained in the Jackson circuit court in favor of Ankeny against Finley and Creath, at November term, 1822. Subsequently, Finley and Creath filed an injunction bill, and at the August term, 1823, a decree was entered, perpetually enjoining the judgment. At the next term after said decree, a re-hearing was granted, and a different decree entered which dissolved the injunction, upon the complying with certain requisitions on Ankeny’s part, first to be performed. From this last decree, Finley and Creath brought a writ of error to the supreme court. At the December term, 1825, of the supreme court, the said decree was reversed generally, at the costs of the defendant in error. On the 18tli of October, 1826, Ankeny procured an execution on the judgment at law. At the April term, 1827, of the Jackson circuit court, a motion was made to quash said execution, upon the ground that the decision of the supreme court operated as a perpetual injunction of the judgment at law, which motion was overruled by the court, and the cause is brought into this court, by writ of error, to reverse the decision of the circuit court in refusing to quash the execution.

It may well be questioned, whether a writ of error will lie in a case situated as this is. If a party proceeds to take out an execution, in violation of an injunction, he can be attached for contempt. But without intending to decide whether a writ of error will lie or not, the court are of opinion that the circuit court decided right in refusing to quash the execution. When the circuit court, sitting in chancery, granted a rehearing in the suit in equity, the first decree was thereby vacated, and the case stood as if no decree had been rendered in the cause. By the reversal in the supreme court, of the second decree, without remanding the cause for further proceedings, or pronouncing such decree as the circuit court ought to have given, the suit in chancery was ended, and left the judgment at law in full force. Consequently, the issuing the execution could not be erroneous. The judgment of the circuit court is affirmed with costs. It was assigned.for error, that the execution does not follow the judgment. It appears, by an examination of the record, that previous to the filing the bill in chancery, an execution issued on the judgment, and the same was replevied by one Garner, who indorsed on the back of the execution, that he entered himself security for the debt; which indorsement, the statute declares, shall have the force and effect of a judgment, and after the expiration of said replevy, the like execution may issue in favor of the plaintiff, against the principal and security, as may issue on judgments at law. The variance relied on is, that the execution should have been on the replevin, and not on the original judgment. But it may be asked, who is injured by this course ? certainly no one.

The statute does not declare what effect the replevy shall have on the original judgment. If it had enacted, that upon the execution of the replevin security, that the original judgment should be considered satisfied, it would clearly have been unconstitutional. The only effect that the replevin can, or ought to have, is, to delay the plaintiff, and after the time has expired, he may proceed on his original judgment if he prefers that course. This then, is not error.

Cowles, for plaintiffs in error.

Baker, for defendant in error.

Judgment affirmed.