author: Trumbull, J. Treat, C. J.

text:
    William B. Warren, Pltff in Error, v. George M. Chambers et al., Defts in Error.
    ERROR TO 1IORGAM".
    When defendants who are sued as partners upon an instrument in writing, file a plea verified by affidavit denying its execution, such plea, also puts in issue the fact of joint liability.
    In all cases, whether the action be upon contracts express or implied, in writing or by parol, defendants who are sued as partners, can only put that fact in issue by a plea in abatement, specially denying the partnership or joint liability.
    When such a plea in abatement is filed the burthen of proving the partnership devolves on the plaintiff.
    If several are sued upon an instrument in writing, and wish to deny their joint liability, as well as the execution of the instrument, the joint liability of all will be admitted, who do not join in the affidavit denying the execution of the writing.
    But if the joint liability is put in issue by a plea in abatement, it will be sufficient to verify the plea by the affidavit of one of the defendants, or a third person.
    This action was commenced in assumpsit, in the Morgan Circuit Court, by the plaintiff in error against the defendants. The defendants filed the plea of the general issue, verified by the affidavits of all the defendants. At the trial the plaintiff insisted that he was not bound to prove the partnership, that fact not having been put in issue by the plea. This position was controverted by the defendants, who insisted that the plea of non assumpsit, verified by oath, put the partnership in issue, the Circuit Court so decided, and the plaintiff was forced to make proof of the partnership. The declaration declared against the defendants as partners. A verdict was found for the defendants, and judgment was entered accordingly. The cause was heard before Woodson, Judge, and a jury, at September term, 1850. The questions raised upon the instructions, not having been considered by this Court-, are omitted in the statement.
    M. McConnell and Wm. H. Herndon, for Pltff in Error.
    If the plea is the general issue, it is insufficient and uncertain. ■The plea should set out some facts, so as to let the Court judge, as to the law arising upon those facts, as to what constitutes a partnership, and of the liability for the act of one. 3 Kent’s Com., 23, 40, 43, 44 and 46; 15 Conn., 57; 7 Iredell, 4.
    If the plea is the general issue, proof of partnership is unnecessaxy. R. S., p. 233, §8; 2 Gilman, 715.
    The statute requires that a plea in abatement, verified by affidavit, shall be filed to put the partnership in issue. And if a ■plea in abatement was designed, it was waived by filing it with the general issue. Both cannot be pleaded at once. 1 Chitty’s PL, 457-8; 1 Green’s Iowa Rep., 165; 1 Eng. Ark., 173.
    D. A. Smith, for Defts in Error.
   Trumbull, J.

The declaration in this case is in assumpsit against the defendants as partners, and contains only the common count for money paid and advanced. The defendants pleaded the general issue, and annexed thereto their affidavits of its truth.

The record shows that the money was paid to one of the defendants, and the point in-controversy was, as:to the liability of the other défendants with him as partners. Both parties offered evidence upon the question of partnership, and the jury found a verdict for the defendants, who had judgment accordingly.

The correctness of the proceedings in the case, depends upon the construction of Sec. 8, Ch. 40, R. S., which declares: “In actions upon contracts express or implied, against two or more defendants, as partners, or joint obligors or payors, proof of the joint liability or partnership of the defendants, or their Christian or surnames shall not, in the first instance, be required, to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or the filing of pleas denying the execution of such writing, verified by affidavit, as required by law.” The foregoing section, as incorporated into the Revised Statutes, is a literal copy of the second section of an '“Act regulating evidence in certain cases,” ajjproved, February 17th, 1841, except that in the original act the section concludes with the words, “as required by the act concerning practice in courts of law, approved January twenty-ninth, one thousand eight hundred and twenty-seven,” in the place of the words “as required by law,” which conclude the section in the Revised Statutes. The change of these words cannot in the least alter the construction to be put upon the act. It is clear, therefore, that the phrase, “the filing of pleas denying the execution of such writing,” has reference to the plea required to be filed by Sec. 14, Ch. 83, R. S., to put in issue the genuineness of an instrument of writing upon which suit is brought. This Court so understood and treated the words under consideration in the case of Stephenson v. Farnsworth, 2 Gil., 715.

It was held in that case, that the statute in question “ was intended to change the rule of evidence respecting the proof of partnership, and place it on the same footing with the proof of the execution of written instruments.”

This language of the Court, must of course be understood with • reference to the case then under consideration, and as applying only to a case where the action is brought upon an instrument of writing, the execution of which, is put in issue as required by the practice act. When, therefore, the defendants, who are sued as partners upon an instrument of writing, file a plea verified by affidavit, denying its execution, such plea, according to the statute, also puts in issue the fact of the joint liability of the defendants.

In all cases, except when the foundation of the action is an instrument of writing, the execution of which is denied by plea verified by affidavit, whether the action be upon contracts express, or implied, in writing or by parol, defendants who are sued as partners can only put in issue that fact by filing a plea in abatement, specially denying the partnership or joint liability.

In this case no such plea was filed, consequently all the evidence upon the subject of the partnership of the defendants, was improperly admitted to go to the jury, as no-such question was in issue.

The-Legislature has an undoubted right to-change the rules of evidence and to declare that a fact which the plaintiff, to entitle-himself to recover at the common law, would have been obliged to prove in the first instance, shall be taken as admitted, unless its existence is denied by the defendants in a particular manner. When the plea in abatement is filed, the burden of proving the partnership devolves on the plaintiff, as was the case at the common law, when the general issue simply was pleaded.

When several are sued upon an instrument of writing, and they wish to deny their joint liability as well as the execution of the writing, according to the case of Stephenson v. Farnsworth,, the joint liability of all the defendants will be admitted, who do-not join in the affidavit denying the execution of the writing.

The rule, however, would be different, when the joint liability was put in issue by plea in abatement. In such a case,, it would be sufficient to verify the plea by the affidavit of one of the defendants, or- a third person.

In the view taken of this case, it becomes unnecessary to pass* upon the sufficiency of the evidence to warrant the verdict of the' jury, but we have looked into the1 proofs as contained in therecord, and are satisfied'that a verdict the other way would have been quite as consistent with- the evidence.

As the plea required to put the partnership of the defendants in issue, though in form in abatement, goes to the merits of the ease and defeats forever the right of action against the defendants jointly, and as both parties treated the plea filed on the former trial as putting this fact in issue, it will be proper when the case comes off again before the Circuit Court, to allow the defendants to withdraw the plea filed, and deny their partnership by plea in abatement, if they shall be so advised.

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

Judgment reversed.

Treat, C. J.

I do not concur in the construction put upon the statute. In my opinion, it was the real design of the legislature to permit defendants to put in issue the question whether they are liable as partners, either by plea in abatement or in bar, the truth thereof being verified by affidavit.


source: Caselaw Access Project

author: Caton, J.

license: Public Domain

text:
    John M. McConnel, Appellant, v. Joshua Gibson et al., Appellees.
    APPEAL FROM CASS.
    The Court will look at the material averments of a bill aiid from' thence determine its true character, and if the averments show that the complainant is entitled to relief, and the prayer will authorize the Court to grant the relief which he shows himself entitled to claim, no matter what name is given to the bill.
    A commissioner in chancery, appointed to sell, cannot become a purchaser at his own sale, either in his own name or in the name of a third person: if he should do so, the sale will be set aside at the instance of the person whose rights have been sold, if the application for that purpose is made within reasonable time.
    A fiduciary cannot be both seller and buyer at the same time, and a sale under such circumstances may be avoided, but not by the fiduciary.
    A sale fraudulently made, on a day different from that named in the notice of sale, Would furnish ground for setting aside the sale.
    A bill which seeks to set aside a sale, and an order confirming such sale, upon the ground of fraud, if filed within a reasonable time after the fraud is discovered, is not obnoxious to a demurrer.
    This was a suit in chancery brought by Saunders as treasurer of T. 18 FL, E. 12 W.,■ of Cass county, against W. W. Babb, and this appellant and others, in the Cass Circuit Court, to foreclose a mortgage, given by Babb to one John T. Jones who was school commissioner of Morgan county. Said mortgage is set out in this record and is upon a tract of land in T. 15 FT., E. 12 W.
    The appellant was made a party to this suit, and it was charged that Babb, subsequently to the giving of the mortgage to Jones, had given a mortgage to appellant upon the same-land.

      Appellant filed Ms answer to said Mil and alleged, that he had a mortgage given by Babb and set it out, showing that the land named in his mortgage was in T. 18 1ST., R. 12 W.
    The hill filed by Saunders set out the same land described in McConnel’s mortgage, and a decree was subsequently rendered in the case to sell the land described in McConnel’s mortgage to pay the debt due to Jones, and no notice was taken of the fact that the land mortgaged to Jones was a different tract of land, and did not appear from Jones’ mortgage to be situated in Cass county. A final decree to sell said land was made at the May term of the Cass Circuit Court in 1841, and one Edward Tull was appointed Master in Chancery to sell said land. At the October term, 1841, Tull reported that he had sold the land to one Lippincott for $950 00, and paid Jones’ debt and costs with the money, hut had not made a deed to the purchaser. At the May term, 1848, one Atwater was appointed to complete said sale by making a deed to Lippincott At the May term, 1845, of said Court, Atwater reported that he had completed.said sale by the making of a deed, which report was approved -by the Court, and thus on the 19th of May, at said May term, the decree of sale was finally carried into effect, and the suit was ended. On the 7th of March, 1849, McConnel and Babb, .two of the original defendants in said cause, filed this bill, called by them a “petition,” in the Cass Circuit Court, praying that .the orders of the Court, approving the making of the sale and of the deed be reviewed, and that they be set aside, for the following causes: 1st. Said petitioners, long after the 19th of May, 1845, and not before, ascertained that said Tull, who had been appointed by the Court to sell said land, had fraudulently and falsely reported to the Court, that he had advertised said land in the nearest newspaper, andhad sold it to Lippincott on the 27th of September, 1841, as the highest bidder, when in fact Tull was himself secretly the purchaser, and knocked it down to Lippincott fraudulently, and that the land was advertised in a paper out of the county 55 miles distant, when there was a nearer paper 25 miles distant ; and that no money was paid for the laud. 2'd, The laud was sacrificed at the sale by Tull, which was made at a different time and place than that specified in the notice of sala That these facts were unknown at the time and have been recently discovered.

      The defendants severed in their defence, some of whom demurred, one moved to dismiss, and another pleaded, that more than five years had elapsed between the final decree, and the filing of the petition. The Circuit Court, Woodson, Judge, presiding, at March term, 1850, dismissed the hill.
    M. McCohkel, for Appellant.
    This petition should be regarded as an original bill in the nature of a bill of review, impeaching the order of the Court affirming the sale and deed, for fraud, which hill may be filed without leave of the Court. Story’s Pleading in Equity, p. 340, § 426, and note 2, also p. 342, § 428.
    The limitation fixed as to the time for sueing out a writ of error, has no application to this case. This bill is not filed to reverse the order of the Court, for anything apparent of record. Story’s Pleading in Equity, p. 325, § 410, and pages 583-4, § 575, also p. 591, § 784; Hawley v. Cramer, 4 Cowen, p. 718; Coxe v. Smith, 4 John. Ch. Rep. 271; Hanison, admtr, &c., v. Picket, 2d Hill, 353.
    The allegations of the bill, being that the officer of the Court of Chancery had been guilty of fraud in the sale of the land, and had become the purchaser at his own sale, at a reduced price, to the injury of defendant Babb who owned the land, and of McConnel a mortgagee, the facts not coming to their knowledge until the filing of this bill; and all these allegations being admitted by the pleadings, the bill should not have been dismissed, but the sale should have been set aside. 4 Cowen’s Rep., p. 781; 5 H. S. Condensed Rep., 142 ; 3 Gilman’s Rep., 2 ; Story’s PI. in Equity, p. 625, § 815.
    Wi. Thomas, for Appellees.
   Caton, J.

We must look at the substance of this bill, and the grounds of equity set up in it, to determine its true character. It commences in the form of a petition, but subsequently assumes the form and substance of an original bill or of a bill of review, and is by the pleader sometimes called one thing, and sometimes another; but we must look at the material averments of the bill and from them determine its true character. Although the pleader may have given it a wrong name, still if the averments show that the complainant is entitled to relief, and the prayer will admit of our granting that which he shows himself entitled to claim, he ought not to be turned out of Court unheard.

Although many of the supposed irregularities in the sale and report may be quite unimportant, so far as the validity of the sale is concerned, y et some of the facts stated in the bill are of a more serious character, and if true, must vitiate the sale and consequently the order of the Court confirming the report of that sale. The bill states substantially that Tull, the commissioner, was in fact the purchaser at his own sale. That although Lippincott was the ostensible purchaser, in fact he purchased not for his own benefit, but for that of Tull. This, if true, was a fraud in law, and will avoid the sale, at the instance of the party whose property was sold or of one holding under him, if their remedy is sought within a reasonable time after the fraud is discovered. The law will not allow a man, who acts in a fiduciary capacity, to be both buyer and seller at the same time. It is true that such a sale is not absolutely void, for it may be confirmed by the party whose interest is affected or title transferred by such sale; and this acquiescence may undoubtedly be presumed, by the absence of any complaint for an unreasonable length of time, after the mode of sale is known. The purchaser cannot avoid the sale, for he shall not be allowed to complain of his own fraud or misconduct. These principles are too familiar to require authority for their support.

There is a charge also, that the sale was fraudulently made on a day different from that stated in the notice, and different from the time stated in the report. If these things were done for a fraudulent purpose, then they would afford sufficient ground for setting aside the sale and vacating the order confirming the report.

The true, object of this bill, is to set aside the sale, and to review, reverse and vacate the order of the Court confirming the report of the sale, whereby the final sanction of the Court was given to the sale. This is asked upon the ground of fraud. The bill shows, that a fraud was practiced upon those interested in the mortgaged premises, and upon the Court, which, had it been known to the Court at the time, would have prevented that Court from making the order approving the report of the sale, and would have induced the Court to have set it aside. This bill comes precisely within the definition of an original bill in the nature of a bill of review, as laid down by this Court in the case of Gregg et al., v. Gear, 3 Gilman, 2; and in Story’s Eq. P., § 426. The bill was filed in a reasonable time after the fraud was discovered. It was therefore not obnoxious to the demurrer. - The same relief substantially might, and undoubtedly would have been, obtained by a purely original bill, setting forth the fraud, and seeking to set aside the sale alone, without asking to have the final order of the Court approving of the report and confirming the sale to be reviewed and reversed; for a decree setting aside the sale, would necessarily have destroyed the effect of that final order. The difference between such a bill and the one before us, is only nominal when founded upon such facts as are stated here.

The authorities above referred to, show that the leave of the Court was not necessary to file the bill. It should not therefore have been dismissed for that reason.

So of the objection as to parties. The bill shows that all who could have had any interest adverse to the relief sought, or indeed in the question at all, were brought in.

The decree of the Circuit Court is reversed with costs and the suit remanded with leave to the- defendants to answer to the merits of the bill.

Decree reversed.


author: Treat, C. J.

text:
    Samuel Wiggins, Pltff in Error, v. Edward Lusk, Deft in Error.
    ERROR TO MORGAN.
    jn an action of ejectment, the patent is conclusive evidence of title, higher and better than a register’s certificate of a prior purchase. In equity, a certificate of purchase will prevail against a patent, if the right on which it is based is prior in point of time, to that on which the patent is founded.
    To render a deed operative to pass title, in addition to signing, sealing and acknowledging, delivery and acceptance are essential to its validity.
    Where a deed after being acknowledged was retained by the grantor, and found among his papers after his decease, it could not become orperative by a delivery after his-death.

      This case is fully stated in the opinion of the Court. The judgment was rendered by Woodson, Judge, at September term, 1850, of the Morgan Circuit Court, and the plaintiff below appealed. The errors assigned, are, the receiving the testimony of Waldo, stating conversations between the witness and I. J. C. Smith, at the time the deed was executed by said Smith, to McDowell; the receiving as testimony the record of the suit between Edward Lusk and Mary Lusk, against the heirs of Smith; in deciding that the plaintiff was only entitled to recover an undivided half of the land in controversy.
    Wm. Thomas, for Pltff in Error.
    The patent to Smith is conclusive evidence of title. Illinois Statutes of 1838, p. 196 ; Wilcox v. Jackson, 13 Peters, 498; Bagnell v. Broderick, ibid, 450; Patterson v. Winn, 5 Peters, 240.
    That if there was any fraud in the purchase by Smith from the United States, the only remedy of the injured party, by that fraud, is by suit in Chancery. Isaacs v. Steele, 3 Scam., 78; Bagnell v. Broderick, 13 Peters, 450.
    That Wiggins not being a party to the supposed fraud of Smith, either in purchasing or selling the land, and being a bona fide purchaser without notice of any fraud, is not affected by the fraud, if any existed. Boon v. Childs, 10 Peters, 210; 1st Story’s Eqt. Pl., 415; Prevo v. Walters, 4 Scam., 38.
    That neither Wiggins or McDowell being parties to the suit in Chancery in favor of Lusk and wife, the record of that suit is not evidence against them. 1 Greenleaf, 590.
    M. McConnel, for Deft in Error.
    The deed from Smith to McDowell was void, never having been delivered. If not void for that reason, it could not take effect until McDowell acted upon it and made the quit-claim deed to Wiggins on the 15th of March, 1839, up to which time the ■ land remained the property of the heirs of Smith, and therefore the decree in favor of Lusk and wife having intervened, took all right from them and McDowell, and left Mm nothing to convey. Strobhart’s Eqt., 349; Hulick v. Scovil, 4 Gilman, 159, 175-6; Richards v. Jackson, 4 Cowen, 617; Church v. Gilman, 15 Wend., 658; Jackson v. Phillips, 12 John R., 418; Herbert v. Herbert, Breese, 282; Church v. Gilman, 15 Wend., 556; Bryan v. Wash., 2 Gil., 557.
   Treat, C. J.

This was an action of ejectment brought by Wiggins against Lusk, to recover the possession of eighty acres of land, situated in Morgan county. On the trial, the possession of the defendant was admitted, and the plaintiff introduced the following evidence:—1st. A patent from the United States to Isaac J. C. Smith, dated the 15th of October, 1834, for an undivided half of the land. 2d. A certificate of the Register of the land office, showing the purchase by Winny Boswell of the whole tract, on the 3d of July, 1832 ; and likewise showing, that Smith proved a right of pre-emption to the land, and purchased an undivided half thereof, on the 23d of January, 1833. 3d. A deed from Smith to McDowell, for an undivided half of the land, dated the 27th of April, 1833, and recorded on the 26th of October, 1836. 4th. A quit-claim deed from McDowell to the plaintiff, dated the 15th of March, 1839, for an undivided half of the land. 5th. A deed from the defendant and wife to the plaintiff, dated the 5th of March, 1839, for an undivided half of the land.

The defendant produced the following evidence :■—1st. A deed from Winny Boswell to Isaiah Stiles, for the whole tract, dated the 15th of September, 1833, and recorded on the 4th of February, 1834. 2d. Proof that Stiles died intestate m September, 1834, leaving the wife of the defendant his sole heir at law. 3d. Proof that Smith died intestate in the year 1834. 4th. Proof that when the deed to McDowell was acknowledged, Smith stated to the justice, that he owed McDowell, who was his brother-in-law, and wished to secure him; that he wanted the matter kept secret, for he feared some claims would follow him from Indiana, and he wished to place the property out of the reach of those having the claims; that McDowell, who resided in Indiana, or the eastern part of this State, was not present, and the deed was returned to Smith; that after Smith’s death, his widow intermarried with John Ayers, who found the deed to McDowell among the papers left by Smith, at his decease, in the possession of the widow, and placed the same on record, and received it from the recorder. 5th. The record of a suit in chancery in the Morgan Circuit Court, commenced in March, 1836, in which the present defendant and his vrafe were complainants, and Ayres, and the widow and heirs at law of Smith were respondents, and in which a decree was entered requiring the respondents to convey to the complainants, all their right, title, and interest in the premises now in dispute. On their failure to perform the decree, the master in chancery conveyed their interest in the land to the complainants.

Upon this evidence, the Court gave judgment in favor of the plaintiff, for an undivided half of the land; and in favor of the defendant, for the other half. The plaintiff brings a writ of error.

In this action, the patent was -conclusive evidence of title in Smith, to an undivided half of the land. It was higher and better evidence of title, than the register’s certificate of a prior purchase by Boswell Wilcox v. Jackson, 13 Peters, 498. In -Equity, a certificate of purchase will prevail against a patent, if the right on which it is based is prior in point of time, to that on which the patent is founded. Isaacs v. Steele, 3 Scam., 97. But, at law, in the absence of fraud in the obtaining of the patent, the title derived from the patent is paramount.

If the deed from Smith to McDowell was ever delivered, so as to vest the legal estate in the latter, and that estate was not defeated, by the failure to record the deed, before the suit was commenced by the heirs of Stiles to divest the title, then the plaintiff, by virtue of the conveyances from McDowell and the defendant and wife, acquired the complete legal title to the whole ■of the premises in controversy. In our opinion, however, there was no valid delivery of the deed to McDowell To render a deed operative to pass title, there must be something more than the mere signing, sealing and acknowledging. A delivery of the deed by the grantor, and an acceptance thereof by the grantee, are essential to its validity. The grantor must deliver the deed to the grantee, or to some one acting on his behalf It must be accepted by the grantee, or by some one for him. It may be delivered to a stranger for the nse of the grantee, and the acceptance by the latter will be presumed, where he claims ^ under it. But the grantor must part with all control over the deed. It cannot take effect while it remains in his possession, and is subject to his control In this case, McDowell claimed title under the deed and it was in the possession of his grantee. This raised the presumption of a delivery to, and acceptance by him. And the presumption could not be overcome, except by clear proof that there had been no actual delivery of the deed by the grantor. The evidence introduced on the part of the plaintiff showed, that the deed, after being acknowledged, was retained by the grantor, and was found among his papers, after his decease. The grantee was not present when the deed was executed, and it is very evident that he was not aware of it§ existence, until after the death of the grantor. It is an irresistible inference from this proof, that the grantor never parted with the control over the deed; in other words, it effectually rebuts any presumption arising from the other facts of the case, that the deed was ever delivered to the grantor, or to any one for his use. It was, no doubt, at one time, the intention of the grantor to convey the land to McDowell, but he died without carrying the intention into effect. His design was but in part executed; it was never consummated, so as to give the deed any legal operation. It could not take effect while it remained subject to the control of the grantor. It went into operation while he was in life, if at all. If there was no delivery by the grantor, the deed could not become operative by a delivery after his death. It was mere waste paper, and it was not in the power of Ayers to give it vitality, by placing it on record, or delivering it to the grantee. The case of Herbert v. Herbert, Breese, 278, is strongly in point. In that case, T. E. Herbert executed a deed to his brother, J. C. Herbert, to whom he was largely indebted, and had the same acknowledged and recorded. The deed was found among the papers of the grantor after his death, and was delivered by his administrator to a third person. The Court held that there had been no valid-delivery of the deed. It said: “It is most manifest that there could have been no delivery of the deed to the grantee, so as to pass the estate. The act of recording a deed, cannot amount to a delivery, when, there does not appear an assent, or knowledge by the gr-ánter, óf the act. In this case, there is not a scintilla of evidence calculated to lead the mind to the belief, that the grantee ever knew of the existence of the deed until after the death of the grantor. There could then ® have been no acceptance by the grantee, because the possession of the deed, if such had been the fact, derived after the death of the grantor, could not amount to one, there having been no delivery during the life of the grantor.”

The judgment of the Circuit Court must be affirmed, with costs.

Judgment affirmed.


text:
    Inman H. Triplett Pltff in Error, v. David Scott Deft in Error.
    ERROR TO HANCOCK
    f A recovers judgment in his name for the use of B, the former cannot receive satisfaction of the judgment, although the legal interest is in his name, and if suit is brought on that judgment, it must be brought in his name.
    A payment to a nominal plaintiff, is not a satisfaction of the debt.
    This suit was originally commenced by Triplett in his name alone, against Scott, before a justice of the peace in Hancock county.
    The foundation of the suit was a judgment rendered before the same justice, entered in the name of “Dennis Clancey for use of Inman H. Triplett.” Triplett obtained judgment in his own name against Scott for the sum of $4 00, the amount of the judgment sued on.
    Scott appealed to the Circuit Court. In the Circuit Court of Hancock county, Minshall, Judge presiding, the cause was submitted to him upon an agreement of this substance.
    That the plaintiff was the owner of a note made by the defendant to one Clancey or bearer. That plaintiff sued it in the name of Clancey to his use. That Clancey, the nominal plaintiff, without the knowledge or consent of Triplett, the real plaintiff, receipted the judgment upon the docket of the justice.
    The Circuit Court, at September term, 1850, dismissed the suit. Triplett sued out this writ of error and seeks to reverse the judgment of the Circuit Court.
    Gr. Edmonds, jr., submitted the cause ex parte.

   Caton, J.

Triplett brought a suit against Scott in the name of Claneey, the record showing that it was for the use of Triplett. Without the knowledge or consent of Triplett, Scott paid the amount of the judgment to the nominal plaintiff, and took his receijjt therefor. Triplett then brought this suit upon that judgment in his own name, which the Circuit Court decided he could not maintain; and we think property. It is true that the payment by Scott to the nominal plaintiff was made in his own wrong, and, it may be admitted, did not satisfy the judgment. Still the legal title to the judgment remained in the nominal plaintiff, and Triplett could no more recover in his own name in a suit upon that judgment, than he could have sued in his own name upon the note upon which the first suit was brought. That note was payable to Claneey, and was transferred to Triplett without endorsement. Hence, Triplett had to sue upon that note in the name of Claneey because the legal title still remained in him, although the equitable title had passed to Triplett. The legal and equ^bty.titles to the judgment were the same as they had been to the note,- and .Triplett was under the necessity of enforcing his rjghts^n.the same way,-that is, by the use of the name of Clancey, the’trustee. The receipt of Claneey for the amount of the judgment could present no more impediment to the recovery in his name upon the judgment, than a receipt given by him for the amount due on the note, would have defeated a recovery on the note.

Thejudgment is affirmed with costs.

Judgment affirmed.


author: Trumbull, J.

text:
    The President and Trustees of the Town of Jacksonville, Appellants v. Murray McConnel, Appellee.
    AGREED CASE FROM MORGAN.
    A corporation, being a mere creature of the law, can. only exercise such powers as are conferred upon it by the act creating it. »
    A power to assess and collect a tax upon all personal estate, includes the power to tax money loaned.
    Under our constitution the legislature has not the power to exempt one species of personal property from taxation, while it collects a tax from another within the same jurisdiction.

      The agreed case, filed herein, is substantially as follows:
    An act the better to provide for the incorporation of the town of Jacksonville, passed by the legislature of said State, provides as follows: ‘ ‘ The board of trustees shall have power and authority to assess and collect taxes uniform, in respect to persons and property for corporate purposes, upon all the real and personal estate within said town, not exceeding one-half per cent, per annum upon the assessed value thereof, as ascertained and returned by the assessor of the corporation, and may enforce the payment of the same in any manner to be prescribed by ordinances not repugnant to the Constitution of the United States, and of this State, and such ordinances may provide for the advertisement, sale, and conveyance of any such real estate for taxes unpaid thereon to said corporation, and the time and mode in which the same mOT^ergdeemed from such sale in the manner prescribed of this State.” On the 9th of March, 1849, lpfi¡^f)pellants pls|ed an ordinance relative to the revenues of tBfe corno^ioru^iieh was duly published; which provides as foll(MaA^U^ordaine'|, by the President and Trustees of the TowrKof Jacjmimmtt^-ym all property, real and personal, within sanl wtoqrorcffcion wbjÉh. may be subject to taxation for state and oounT^S8Miaaa¿g**ffiv the laws of this State, shall be liable to taxation for the use of the corporation, and the lien of the corporation for such taxes shall attach from and after the date when the assessment list is received by the collector.” The appellee was an inhabitant of said corporation in 1849. For that year there was assessed against him amongst other taxes, a tax of 40 cents to the one hundred dollars, on four thousand dollars money loaned, or at interest, amounting to sixteen dollars.
    To restrain the collection of this tax the appellee filed his bill, and obtained a writ of injunction from Woodson, Judge. The appellants filed an answer, admitting the foregoing state of facts. The parties in the Circuit Court submitted to Woodson, Judge, the question, “whether the corporate powers of said town extend to the right to levy on the inhabitants of said town a tax for money loaned by them, in or out of said town.” The Court decided that, “the ordinance under which the assessment was made was not in accordance with authority granted by the charter, so far as it attempts to assess a tax on money loaned, and is to that extent void;” and perpetuated the injunction. From this decision the plaintiffs in error appealed and bring the case to this Court; and assign for error, that the Court below erred in deciding the aforesaid ordinance void, and that appellants had not a right to collect a tax on money loaned.
    P. A. Smith for Appellants.
    Mubbay McConwel for himself.
   Trumbull, J.

The right of the town of Jacksonville to levy and collect a tax upon money loaned by the inhabitants of said town, is the only question involved in this case.

That a corporation, which is a mere creature of the law, can only exercise such powers as are conferred upon it by the act of incorporation, is a well settled doctrine.

Let us then inquire what powers have been granted the town of Jacksonville, upon the subject of taxation.

The 9 th section of an act, the better to provide - for the incorporation of the town of Jacksonville, approved February 10,1849, declares, that “the Board of Trustees shall have power and authority to assess and collect taxes uniform in respect to persons and property, for corporate purposes, upon all the real and personal estate within said town.”

Here the power to assess and collect taxes is expressly given, but it is insisted that the power to assess and collect a tax upon all personal estoedoes not include the power to tax money loaned; in other words, that-money loaned is not personal estate. We cannot assent to this proposition. The term all.personal estate, in its ordinary sense, is understood to include loaned money, as well as every other species of personal property.

This view of the case is strengthened by the fact, that the general revenue law in force at the time the act in question was passed, expressly declares that"the term “personal property ”—a term of similar import to that of “ personal estate ”—shall be construed to include “all .moneys on hand and moneys'loaned whether within or without the State.”

When the legislature passed the act authorizing the Board of Trustees of the town of Jacksonville to assess and collect a tax, upon all the personal estate within said town, it is but reasonable to suppose that the term personal estate ” was understood to have the same meaning as had previously been given to a similar term, used in the general law, upon the subject of taxation.

There is another reason why the term personal estate,” should be construed to include money loaned, and every other species of personal property.

The constitution of the state expressly declares, that the mode of levying a tax shall be by valuation, “so that every person and corporation shall pay a tax in proportion to the value of his or her property.” Under this provision the legislature would have no power to exempt from taxation one species of personal property, while it collected a tax from another, within the same jurisdiction, and it is never to be presumed that the legislature intended to pass a law which should be contrary to the Constitution, either in its letter or spirit.

To restrict the term “personal estate” within narrower limits than would embrace every species of personal property, would, to say the least, render the validity of the law doubtful, if it did not make it wholly void, as being repugnant to the constitution.

We cannot doubt that the Board of Trustees of the town of Jacksonville had authority, under their act of incorporation, to assess and collect a tax upon money in hand, or money loaned in or out of said town, by the inhabitants thereof.

The decree of the Circuit Court, enjoining the collection of the tax in question, is therefore reversed, and the bill dismissed.

Judgment reversed.


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    Nancy J. Turney, Admrx of the estate of J. Turney, deceased, Pltff in Error, v. A. B. Gates, Deft in Error.
    ERROR TO JO DAVIESS.
    It is erroneous, in reviving a judgment against an administrator, to award an execution against the goods and chattels, lands and tenements of the intestate.
    In such a case, where execution was not issued on the judgment against the intestate within a year and a day, the lien on the lands of the intesiate was lost.
    The proper order would he to revive ttie judgment against the administrator, to he paid in the due course of administration.
    In the distribution of the assets of deceased persons, under our statute, judgment creditors without a hen, and simple contract creditors, stand upon the same footing.

      This was a proceeding by Scire Facias, in the Jo Daviess Circuit Court, to revive a judgment theretofore rendered in favor of the defendant in error, at the March term, 1842, of said Court, against John Turney, who afterwards deceased. The Sci. Fa. issued against the present plaintiff in error, as administratrix of John Turney. The cause was heard before Thomas C. Browne, Justice, at the October term, 1844, a default was taken, and a judgment was rendered against the plaintiff in error, reviving the former judgment, and ordering that execution issue “against the goods and chattels, lands and tenements, rights, credits, and effects of the said John Turney, in the hands of the said administratrix to be administered, with costs of suit,” &c.
    The administratrix brings the cause to this Court, assigning for error, the rendition of judgment on the Sci. Fa. against the lands and tenements of the intestate, and in awarding execution, &c. It does not appear that any execution had issued upon the judgment against the intestate within a year and a day.
    The writ of error herein, was issued in November, 1847.
    Van H, Higgins, submitted this cause to the Court, ex parte, on the errors joined.
   Treat, C. J.

Gates recovered a judgment against Turney, in March, 1842. No execution was issued thereon within a year. Turney died in 1844; and, in 1846, Gates sued out a scire facias to revive the judgment against his administratrix. An order was entered in that proceeding, that the judgment stand revived against the administratrix, and that the plaintiff have execution against the goods and chattels, lands and tenements of the intestate. The order was erroneous. The plaintiff was not entitled to execution on the judgment. He lost his lien on the lands of the intestate, by failing to sue out an execution within the year. The proper order would have been, that the judgment be revived against the administratrix, to be paid by her in the due course of administration. Welch v. Wallace, 3 Gilman, 490. In the distribution of the assets of deceased persons, under our statute, judgment creditors without a lien and simple contract creditors are put on the same footing. Paschall v. Hailman, 4 Gil., 285.

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

Judgment reversed.


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    William W. Gallimore, Appellant, v. William T. Dazey et al., Appellees.
    APPEAL FROM ADAMS.
    When a petition shows a case clearly within the spirit and letter of the statute, a party is permitted to avail himself of the privilege of a re-hearing of a decision by a justice of the peace, at any time within six months, by the aid of a writ of certiorari, and the filing of the petition with an order allowing the writ endorsed thereon, and an appeal bond approved, will give the Court jurisdiction, and the case is pending from that time in the Circuit Court, without the emanation of the writ.
    The trial is to be de novo as in cases of appeal, and no formal return is required to , the writ, and if the writ is served and returned, and its mandate is not complied | with, an attachment may be issued against the justice.
    Where the papers and a transcript of the proceedings are filed, the issuing of a certiorari is wholly unnecessary.
    There is no occasion for a bill of exceptions to the decision of a court dismissing a suit, upon a motion based upon facts appealing in the record.
    This was an action commenced by the appellees against the appellant in Adams county, before a justice of the peace. The judgment upon the motion to quash, was rendered by Minshall, Judge, at May term of the Adams Circuit Court, 1849. Gallimore prayed this appeal. The facts of the case are stated in the opinion of the Court.
    Warren & Edmunds, for Appellant.
    Williams & Lawrence, for Appellees.
   Treat, C. J.

Dazey and Shepherd brought an action against Gallimore, before a justice of the peace. The constable made return, that he was satisfied the defendant evaded service of the summons, and he “therefore served the same on the said Gallimore, by leaving a written copy at his place of residence, with old Mrs. Gallimore.” On the 16th of August, 1847, the justice rendered a judgment by default against the defendant for $46. On the 10th of February, 1848, the defendant obtained an order for a certiorari, to remove the cause into the Circuit Court, and filed a bond as in the case of an appeal. He swore, in his petition for the certiorari, that he was absent from the state, at the time of the commencement of the suit before the justice, and continued absent until more than twenty days had elapsed after the judgment was recovered, and that in the meantime, he had no knowledge or information of the pendency of the suit, or of the rendition of the judgment, and he could not, therefore, have taken an appeal in the ordinary way; and that he was not indebted to the plaintiff on any account whatever. A supersedeas was issued, and served on the justice. No writ of certiorari was ever issued. A certified transcript of the proceedings before the justice was filed in the Circuit Court, on the 19th of May, 1848. In May, 1849, the surviving plaintiff appeared and entered a motion to dismiss the proceeding, which the Court sustained. That decision is now assigned for error.

The statute allows a party, under certain circumstances, to remove a cause from a justice of the peace to the Circuit Court, by cet'iiorari, within six months after the rendition of, the judgment. He is required to set forth and show on oath, that the judgment was not the result of negligence on Ms part; that the same, in his opinion, is unjust and erroneous, specifying wherein the injustice and error consists; and that it was not in his power to take an appeal in the ordinary way, stating the particular circumstances that prevented him from so appealing. The officer allowing the certiorari, is required to endorse an order to that effect on the petition; and on the filing of the same in the Circuit Court, together with a bond conditioned as in the case of an appeal, a writ of certiorari is to be issued. The writ commands the justice to certify into the Circuit Court, a transcript of the proceeding had before him; and upon the return of the writ, the cause is to be proceeded with as in cases of appeal. E. S., Ch. 59, Sec. 72 to 74.

The Circuit Court erred in sustaining the motion to dismiss. The petition showed a case clearly within the letter and spirit of the statute. The defendant was absent from the state, when the action was commenced before the justice, and did not return, until the time allowed for an appeal had expired. During his absence, he had no actual notice of the pendency of the suit, or of the existence of the judgment, and he was not the debtor of the plaintiffs. If all this was true, and it must be so considered for the purposes of tMs case, he had a clear right to the remedy by certiorari. The judgment was not the result of negligence; it was wholly unjust; and it was out of his po^yer to have it reviewed in the Circuit Court in the usual mode. He had a defence on the merits, and no opportunity to interpose it. The statute was intended to provide for just such cases. It seems to be the design of the statute that every party, against whom a judgment has been rendered by a justice of the peace, may have the case re-heard in the Circuit Court. It accordingly allows an appeal in every case, except on a judgment confessed, provided the same is taken within twenty days from the date of the judgment. And where a party can show that injustice has been done him, not attributable to his own laches, and that he could not, by the exercise of extraordinary diligence, perfect an appeal within the twenty days, he is permitted to avail himself of the privilege of a re-hearing, at any time within six months.

It is insisted, however, that the issuing of a writ of certiorari, within the six months, is necessary to invest the Circuit Court with jurisdiction of the case. We think otherwise. It is the filing of the petition, with an order allowing a certiorari endorsed thereon, and an appeal bond approved by the clerk, which gives the Court jurisdiction. The case is from that time pending in the Circuit Court. The statute permits a party to take an appeal, by.entering into an appeal bond before the justice, and the latter is thereupon required to file the bond and the papers of the case, in the Circuit Court, within twenty days thereafter. Under this provision, it was decided, in the case of Little v. Smith, 4 Scam., 400, that the case was properly pending in the Circuit Court, from the time of the approval of the bond by the justice, although the papers were not sent up within the time required by law; that it was the giving of the bond by the party, and not the filing of the papers by the justice, which perfected the appeal, and conferred the jurisdiction. It was held, in the case of Owens v. McKethe, 5 Gilman, 79, that an appeal to this Court was perfected, by the filing of the appeal bond with the clerk of the Circuit Court. Those cases are not different in principle, from the one under consideration. The only office of the writ of certiorari is to bring up the papers of the case, and a transcript of the proceedings had before the justice, to be used on the trial in the Circuit Court. The trial is to be de novo, as in cases of appeals; and not upon the return of the inferior tribunal, as in common law cases of certiorari. The only command of the writ to the justice, is to certify and transmit the papers and proceedings of the case. He is not required to make any formal return to the writ. His only duty is to send up the papers and proceedings. The writ is directed to the sheriff, and is served and returned by him. If its mandate is not complied with, the sheriff’s return of service is a sufficient foundation for an attachment against the justice. Where the papers and a transcript of the proceedings are filed, the issuing of a certiorari is wholly unnecessary. The object of the statute is then fully answered, and the law will not require the performance of an unnecessary act. It is like the case of a writ of error from this Court, which is never sent out, where the plaintiff in error files a transcript of the record in the first instance; and like the case of the suggestion of a diminution of the record in a case before this Court, where a certiorari is not sent down to the keeper of the record, if either party will supply the defect, by filing a complete record. All that the appellee can require is, that he shall not be delayed in the trial of the case, by the neglect of the appellant to have a certiorari issued. If, when he appears, the papers of the case are in Court, no matter how they came there, he has no cause for complaint. In this case, the necessary papers were on file long before the plaintiff entered the motion to. dismiss, or even appeared in the case.

There was no occasion for a bill of exceptions to the decision of the Court, dismissing the suit. The motion was based on facts appearing in the record.

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

Judgment reversed.


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    Rescarick Ayers, Appellant, v. George M. Richards, Appellee.
    APPEAL FROM MORGAN.
    Where the introductory part of a declaration is in the appropriate f rm for debt! but all the counts are strictly and technically in assumpsit, it will be considered a declaration in assumpsit.
    Where the items of an account are read to a party, and he admits the correctness of each item and of the whole account, but as to certain items, stated that he thought the whole or a part of them, had been paid by his son, and that he thought the account was correct, and that he would see his creditor and settle , with him, such admissions do not show a new promise within five years.

      In order to take a case out of the statute of limitations, there must be a promise to pay the debt; sucli promise may be implied from an express and unqualified admission that the debt is due and unpaid, nothing being said or done at the time to rebut the presumption of a promise to pay; but the admis-ion of the debtor, that an account is correct, that he received the goods or money, or that he executed the note, will not be sufficient for the purpose, unless it is also; expressly admitted that the debt is still due and unpaid.
    In an action of assumpsit, on an open account, the last item of which accrued more than five years before the commencement of the action, the statute of limitations is a good defence.
    The declaration in this ease commenced as in debt, and concluded to the damage of the plaintiff of one thousand dollars. The body of the declaration had but six counts, which were all in assumpsit. To this declaration defendant replied, that he did not owe the sum of $1,000 00, demanded as debt in the plaintiff’s declaration, &c., and gave notice with his plea, that he would rely upon the statute of limitations of five years, as a bar to the plaintiff’s demand.
    By agreement, the cause was tried by the Court, Woodson, Judge, presiding, at September term, 1850, and a judgment was rendered for the plaintiff, for $429 "90, whereupon the defendant below appealed to this Court. Upon the finding of the issues for the plaintiff, defendant interposed a motion in arrest of judgment, which was overruled. The only testimony in the case shows, that the witness called upon appellant, and “showed him the account, and jead over to him each item of account, and as he read, Ayers admitted to tho correctness of every item, and of the whole account, but as to the items for the board of his son, he stated that he thought that item, or a portion of it, had been paid by his son. He further stated to witness, that the account was correct, and that 'he would see Richards, and settle with him. On his cross examination, the witness stated that Ayers never intimated to 'him that he had any offsets against account, or that it had been piaid, exccprt that he had supposed his son had paid for the board or a part of it. On being asked whether Ayers promised to piay the account, witness stated that he made no other promise than that he would see Richards and settle it.” The appellant moved the Court for a new trial, upon the ground “that on the evidence in the case, the Court ought to have given judgment in favor of the defendant, under the statute of limitations of five years,” which was also overruled.
    D. A. Smith, for'Appellant.

      M. McCootel, for Appellee.
   Caton, J.

The introductory part of this declaration is in the appropriate form for debt, but all the counts are strictly and technically in assumpsit. This, according to the cases of Cruikshank v. Brown, and McGinnety v. Laguereure, 5 Gilman, 75, and 161, is a declaration in assumpsit, and not in debt. The counts being all in assumpsit, there was no misjoinder, and the motion in arrest of judgment was properly overruled.

It can make no difference in the result here, whether we consider the testimony of McOonnel as so referring to the account filed with the declaration, as to enable us to look into that as a part of the evidence or not. By doing so, we see that more than five years had elapsed from the date of the last item in the account, and the commencement of this action, so that the statute of limitations constituted a good defence. Nor did the testimony of the witness show a new promise within the five years. He says he “read over to him each item of the account, and as he read, Ayers admitted to the correctness of every item, and of the whole account; but as to the items of the board of his son, he stated that he thought that that item, or a portion of it, had been paid by his son. He further stated, he thought the account was correct, and that he would see Richards and settle with him.” In order to take a case out of the statute of limitations, there must be a promise to pay the debt. Such promise may be implied, it is true, 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. It is not sufficient that the debtor admitted the account to be correct, or that he had received the goods or the money, or had executed the note sued on, but he must have gone further, and admitted that the debt was still due and had never been paid. The bare admission of the correctness of the account, or genuineness of the note sued on, is no more a satisfactory answer to the statute, than would be the testimony of .a witness proving the same facts. The statute presupposes the debt to have been .due, and that there is no evidence that it has ever been paid. It would be absurd to say, that a promise shall be implied, by the bare admission of the party of what the law itself supposes to be true. It has been even regretted by many learned Courts, that parol testimony has ever been allowed to do away with the express statute, and especially, that any implied promise has been allowed to have that effect, for it certainly offers great inducements to pervert and distort the statements of parties, in order to make out a new promise. There is certainly great discrepancy in the decisions of different Courts on this subject, and some Courts have undoubtedly allowed a looser rule to prevail, than the one which we have adopted, but we think the"weight of authority, and certainly the reason of the case, are in favor of the views which we have stated.

It is true here is an' inference, and a very strong inference, that this account had not been paid. But there should be an express admission of that fact, in order to infer the new promise. But one inference is. to be admitted. Ho more should be admitted, when dispensing with an express act of the legislature. An inference upon an inference would be too unsubstantial for such a result. By the rule which the current of decisions has compelled ns to adopt, the statute may be substantially repealed in the particular case. Were the question a new one, we should hold that no suit could be maintained upon the old cause of action, but only upon a new and express promise, for which the old cause of action might be a sufficient consideration, as in case of a debt which has been discharged by bankruptcy.

This being an action of assumpsit, on an open account, and the last item of the account having accrued more than five years before the commencement of the action, the statute of limitations was a good defence, and a new trial should have been granted.

If it be objected that the account, not being copied into the bill of exceptions, but only referred to by the witness, so that we cannot know what that account was, then we say, that as the evidence fixes no amount, except by reference to the account ■sued on, when that is withdrawn from view, there is no evidence whatever to justify the verdict. If we can look at the account filed with the declaration, and referred to by the witness, to ascertain the amount, then we cannot help seeing, that the last item bears date more than five years before the commencement of this suit.

Let the judgment be reversed and the cause remanded.

Judgment reversed.

Treat, 0. J., dissented.


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    Harrison Sconce et al., Pltffs in Error, v. James W. Whitney, admr, &c., Deft in Error.
    ERROR TO PIKE.
    In chancery, the summons mu~t be served by copy.
    Where the complainant chooses to proceed against infants under the statute, without service of process, it is the duty of the Court, to exact of the guardian a vigorous defence of their interests, and it is wrong to take a bill for confessed agaiust them, upder any circumstances.
    The hill in this case was filed to procure the re-conveyance of certain lands. The respondent died after the hill was Med, and proceedings were had against his survivors, and a decree entered upon the prayer of the hill in favor of the complainant. The heirs of the respondent, some of whom were minors, were never served with process, nor were they represented in the case. The widow of the first respondent married Sconce, one of the plaintiffs in error. The process was served upon one of the respondents hy copy, and upon others hy reading. The' decree was-rendered by Minshall, Judge, at the March term, 1850, of the Pike Circuit Court. A guardian ad litem was appointed for the infants, who did not appear or answer for them.
    C. L. Higkbee and J. Sibley, for Pltffs in Error,
    There ivas no service of process on Mary Sconce, the wife of plaintiff in error. Service on the husband is not s sendee on the wife, where her property is the subject matter of the suit. 2 John. Ch. R., 139; 9 Yesey Ch. R., 485; 6 Madd. Ch. R., 172.
    There is no appearance of the guardian, ad litem, of the infants before the final decree. No default or decree, pro confesso, can he entered against them. 3 Harrison, 603; 3 J. J. Marshall, 544; 5 Call, 459; 4 Gilman, 370.
    Browning & Busbnell, for Deft in Error.
   Caton, J.

There are objections to this decree which are insurmountable. Mrs. Sconce Avas never properly brought into Court. The most that can he said, is, that the process was served upon her hy reading, when the statute required that she should he served by copy. The infants Avere never served Avith process in any way, nor did their guardian file any answer in their behalf. The Court should have compelled the guardian to answer; and it was wrong for the Court to take the bill for confessed as to them, under any circumstances. It was the duty of the Circuit Court to see that the guardian performed his duty, for which service a provision is made for his compensation. Particularly where the complainant chooses to proceed against infants under the 47th Sec. of the 21st Chap. R. S., without service of process, as appears to have been the case here, it was the duty of the Court, to exact of the guardian a vigorous defence of the infants’ interests. In this case, so far from that having-been done, not even a formal answer by the guardian was required, but the bill was taken for confessed; precisely as if they were capable of protecting their own interests; and there was no duty resting upon the Court, or the guardian, to protect them. Were such a practice once sanctioned, there would be an end of all security to infants. If a complainant will take a decree under such circumstances, either through design or inadvertance, he must not expect to sustain it in this Court.

Let the decree of the Circuit Court be reversed, and the suit remanded.

Decree reversed.


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    The People for the use of Richard Markham et al., Appellants, v. John White, et al., Appellees.
    APPEAL FROM SCOTT.
    The legal questions arising in this case were fully settled in a former decision reported in 11 Illinois, 341. The question here presented, is purely one of fact, viz: whether the administrator of the estate of Rider accounted for all of the property that came to his hands as such administrator, and the decree of the Circuit Court finding he did not so account, and that his sureties,- the defendants, here were liable for his default, affirmed.
    This case having been presented to the Court at a previous term, all the facts of the case necessary to its elucidation will be found in the eleventh volume of Illinois Reports, page 341.

      D. A. Smith, for Appellants.
    , Wm. Thomas and Wm. Bbowh, for Appellees.
   Treat, C. J.

. This case was before this Court at the last term, and the decision will be found reported in 11 Ills., 341. Upon the remanding of the cause to the Circuit Court, the complainants amended their bill by making D. A. Smith, administrator do bonis non of Lewis Rider, a party defendant, who appeared and answered. Some additional proof was taken by the parties. The cause was then submitted, on this proof and the evidence previously taken, and a decree entered, that the complainants recover of the defendants, White and Webb, the sum of $329 38, to be distributed by the administrator of Rider in the due course of administration. The complainants being dissatisfied with the decree, have prosecuted an appeal for its reversal.

The legal questions arising in the ease were fully settled in the former decision. The only question now presented for our consideration, is purely one of fact. It was decided at the last term, that the defendants, White and Webb, as sureties on the administration bond of Parker, were liable in this proceeding for all of the estate of Rider that came to the hands of the administrator, and was not accounted for by him. The only property of Rider consisted of the effects of the firm of Webb & Rider, of which firm Rider was an equal partner at his decease. The whole of the partnership effects, except a house and lot and the debts due the firm, were inventoried and sold by Parker, as the administrator of Rider. The controversy now is, whether this property, in whole or part, was not subsequently surrendered up by the administrator to the surviving partner, to be .applied in the adjustment of the partnership affairs. In refer•ence to this question, it was said in the former opinion: “If, vupon a further investigation of the case, it shall turn out that Parker disposed of the partnership property with the assent or acquiescence of Webb, then, as administrator, he became chargeable with the proceeds; and if he has not faithfully accounted for them, Ms sureties must make good the loss sustained by the creditors. But, if on the other hand, it shall appear that the property, or any part of it, was surrendered up in good faith by the administrator to the surviving partner, on his claim of right to dispose of it in winding up the affairs of the partnership, then, the sureties are not to be held responsible for what was thus returned to Webb.”

The proof discloses substantially these facts. The property inventoried by the administrator was appraised at $1,022 66. It was sold by him at public auction, in October, 1838, on a credit of nine months, for the aggregate amount of $836 41. Webb, the surviving partner, bid off all of the property, but a part that sold for $199 18. James Linkins was the purchaser of one article for $3 12. The property stricken off to Webb consisted entirely of tools and materials used in the prosecution of the partnership. After the sale, Webb continued to carry on the same business, and in so doing, made use of this property. He also proceeded, to some extent, to settle the concerns of the partnership. The books and accounts were retained by him. Parker was well aware of the acts and purposes of Webb. The property purchased by Linkins was surrendered to Webb, with the assent of Parker. Parker died in April, 1839. Shortly before his death, an interview took place between him and Webb, in which the latter, as surviving partner, demanded the proceeds of all the property not bid off by him and Linkins, to enable him to wind up the business of the partnership. Parker admitted the justice of the claim, and said that on his return from St. Louis, they would have a settlement, and he would then turn over the notes to Webb in a legal way. He died on the trip to St. Louis. It does not appear that Parker ever accounted for any of the proceeds of the sale. Mor is there any proof that he ever received notes or other securities from Webb, for the payment of the property purchased by him.

On this state of case, the Circuit Court held the sureties liable for all of the property sold by their principal—except the part bid off by Webb and Linkins—and interest from the time the purchase money became payable. We are entirely satisfied with the decree. The production of the sale bill was sufficient, prima facie, to charge the administrator with the gross amount of the sales, but the other circumstances of the case clearly overcome this presumption, as respects the property bid off by Webb and Linkins. It is obvious, that the administrator never received any money or securities on account of this property. The only controversy between him and. Webb seemed to be in relation to the property purchased by other persons; and, as,to that, Parker promised to pass over the proceeds to Webb, but died without so doing. It is very evident, that Parker considered the claim of Webb to the property in question, as surviving partner, superior to his right, as administrator of the deceased partner; and that he, therefore, permitted Webb to retain it in that character, rather than ns purchaser. If such was the case, the sureties, on the principles of the former decision, ought not to be held responsible for the value of the property thus surrendered.

The decree must be affirmed, with costs.

Decree affirmed.


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    Trustees of Schools, for Township No. Two, &c., Pltffs in Error, v. Ezekiel Walters, et al., Defts in Error.
    ERROR TO BROWK
    The statute which provides that security for costs shall be given where actions are brought upon official bonds, applies to cases where the action is prosecuted solely for the benefit of a particular person or party; and not to cases where the object is to enforce a public duty.
    A motion to dismiss for-want of security for costs, even in cases within the statute, comes too late, after answering to the merits. It is a dilatory motion, and if not interposed in due time, it will be considered as waived. The objection, cannot be-raised after the time has passed for pleading in abatement.
    The facts of this case are stated in the opinion of the Court. The motion to dismiss was sustained, and the judgment of dismissal entered, by Minshall, Judge, at the August term, 1850, of the Brown Circuit Court. The Trustees of Schools prosecute this writ of error, and assign for error the dismissal of the suit, because security for costs had not been given.
    R. S. Blackwell and J. Bailey, for Pltffs in Error.
    1. This is not an action upon an “ office bond” for “ the use of any person” within the meaning of R. S. 126, §1.

      This law was intended to apply to the bonds of Sheriffs, (R. S., 514,) Coroners, (ib., 514,) Recorders, (ib., 431,) Clerks of the Supreme, (ib., 144,) Circuit, (ib., 147,) and County Courts, (ib., 131.) Justices, (ib., 314,) Constables, (ib., 315,) Notaries, (ib.7 392,) and others of a like nature; where an individual, aggrieved by the neglect or misconduct of a public officer, institutes a suit against such officer upon his official bond, in the name of the People, Governor, or County Commissioners, in whom the legal interest is vested, and who, though nominal parties to the record, have no beneficial interest in the subject matter of the suit. The object of this law was to prevent groundless and vexatious litigation upon official bonds, to indemnify the nominal plaintiff, and to secure to the defendant and the officers of the Court all of the costs, in case the plaintiff is unsuccessful.
    , But actions upon the official bonds of Public Printers (R. S., 442,) Public Binders, (ib., 425,) Collectors, (ib., 441,) Auditors and Treasurers, (ib., 77,) Attorney General and State’s Attorneys, (ib., 75,) Warden of the Penitentiary, (ib., 583,) School Commissioners, (ib., 498,) School Trustees, (ib., 505,) School Treasurer, (ib.,-,) and County Treasurer, are neither within the words or spirit of this statute. Not within the words, for such actions cannot be regarded as instituted for the use of any person, but for the use of the State, People, or County. In this case the suit is brought for the use of the inhabitants of township 2, S. 3 W., in Brown county, a municipal corporation for educational purposes, and the judgment when recovered forms a part of the school fund of the township. The suit then is not for the use of a person, but for the use of a particular fund.
    A law which in .general terms speaks plaintiffs, defendants and persons, applies to natural persons only, and States, Counties, and Municipal Corporations are not affected by its provisions, unless expressly named. Schuyler v. Mercer, 4. Gil., 20; Blair v. Worley, 1 Scam., 178.
    If the legislature had merely said, in “ all” actions upon “ office bonds," security for costs should be given and stopped, no doubt could arise; but they have gone farther, and used these restrictive words,. “office bonds for the use of any person'' clearly intending to dispense with security in all actions upon office bonds, not brought for the use of some person.

    It is a sound rule of construction, that every clause and ivord
      of a statute, shall be presumed to have been intended to have some force and effect. 22 Pick., 573.
    2. A motion to dismiss a suit for want of security for costs is a dilatory motion in the nature of a plea in abatement, and if not made in apt time, is waived by the party. Simonds v. Parker, 1 Metcalf, 511-12; Carpenter v. Aldrich, 3 ibid, 58; Clark v. Gibson, 2 Arkansas, 113-14; Robinson v. St. Clair, 1 Denio, 628; Duncan v. Stint, 7 Eng. Com. Law Rep., 234; Fonville v. Richey, 2 Richardson, 10; Robertson v. Co. Com., 5 Gil., 565.
    3. The judgment for costs against the plaintiffs is erroneous. R. S. 512, §87; Laws 1847, p. 148, §117 ; Laws 1849, p. 179, §89.
    Browsing & Busi-inell, for Defts in Error.
   Treat, C. J.

This was an action of debt brought by the Tnistees of Schools of township two south, in Brown county, against Walters and others, on a bond executed by Walters, as principal, and the other defendants, as sureties, made payable to the plaintiffs, and conditioned for the faithful discharge of the duties of the office of Treasurer of Schools for said township. The breach assigned was the failure of Walters, to pay over the school funds in his hands to his successor in office. At the first term, the defendants filed several special pleas, on which issues were formed. At the second term, the Court, on their motion, dismissed the suit because security for costs had not been given. The propriety of that decision is the only question in the case.

The statute provides that, “ In all actions on office bonds for the use of any person, actions on the bonds of executors, administrators or guardians, qui tarn actions, actions on any penal statute, and in all cases in law or equity, where the plaintiff, or person for whose use an action is to be commenced, shall, before he institutes such suit, file, or cause to be filed with the clerk of the Circuit or Supreme Court in which the action is to be commenced, an instrument in writing, of some responsible person, being a residen c of this State, to be approved by the clerk, whereby such person shall acknowledge himself bound to pay, or cause to be paid, all costs which may accrue in such action, either to the opposite party, or to any of the officers of such Court.” It further provides, “ If any such action shall be commenced without filing such instrument of writing, the Court, on motion, shall dismiss the same.” R. S., ch. 26, Secs. 1 and 2.

It is very clear that this case is not within the operation of the statute. The action, although on an official bond, was not brought “ for the use of any person.” It was brought by the obligees, for the purpose of recovering moneys belonging to a municipal corporation, of which they were the agents and trustees. It was not a suit on an official bond, for the benefit of an individual, within the meaning of the statute. The first clause of the statute applies only to that class of actions on official bonds, which are brought at the instance and for the benefit of particular individuals or parties, to obtain redress for private injuries resulting from the negligence or misconduct of public officers—such, for example, as actions on the bonds of sheriffs, for false returns, and for not paying over moneys collected on execution. The object of the suit must be to enforce a private right, and not a public duty. The action has to be brought in the name of the obligee, in whom the legal interest in the bond is vested, but it is subject to the control, and is prosecuted solely for the benefit of a particular person or party. If he is permitted to avail himself of the privilege of sueing on the bond, he should be held responsible for costs if he is unsuccessful. Not being a party to the record, no judgment can be entered against him. Hence the necessity of this provision of the statute. In this class of cases, the party, for whose use an action is prosecuted, is required to give security for costs, before commencing the action. The object of the requisition is to discourage unnecessary litigation on official bonds, and secure defendants and officers of Courts in the payment of their costs, where the prosecution is unsuccessful. But in all other actions on official bonds, security for costs need not be given. It manifestly was not the design of the legislature, to require security for costs to be given in actions instituted on official bonds, to enforce the performance of public duties. The statute declares, that in all actions commenced for or on behalf of the people of the State, or the Governor, or for or on behalf of a County, or in the name of any person for the use of the people, or a County, in which the plaintiff shall be unsuccessful, the defendant shall recover no costs whatever. R. S., ch. 26, § 14. And it also provides that, “ No justice of the peace, constable, clerk of a Court, or sheriff, shall charge any costs in any suit where any agent of any school fund sueing for the recovery of the same, or of any interest due thereon, is plaintiff, and shall be, from any cause, unsuccessful in such suit.” R. S., ch. 98, § 87. These provisions embrace every case in which actions can be brought on official bonds, for matters affecting the interests of the public, and they express^ exempt the plaintiffs in such actions from the payment of costs, in the event they are unsuccessful. If they are not compelled to pay costs, the legislature certainly never intended to require them to give security for their payment.

But, if this case was within the statute first recited, the decision of the Court was erroneous. The defendants were too late with the motion to dismiss, after answering to the merits of the action. It is a dilatory motion, in the nature of a plea in abatement, and if not made in due time, must be considered as waived by the party. The want of a bond for costs does not affect the jurisdiction of the Court. It is required to be given for the benefit of the defendant, and he may insist upon or waive his right. If he objects to the prosecution of the action, because no security for costs was given when it was commenced, he must interpose the objection before he attempts any defence on the merits. He cannot raise the objection, after the time has ¡oassed for pleading in abatement. A statute of Massachusetts declares that, “ All original writs, in which the plaintiff is not an inhabitant of the State, shall, before the entry thereof, be endorsed.” A non-resident commenced an action, without having the writ endorsed. At the second term, the defendant moved to dismiss the case for that reason. The Supreme Court held, that the motion was properly refused. They said: But it is perfectly manifest, that it is a provision made for the benefit of the defendant, and therefore he may waive it; and upon very strong grounds of justice and expediency, it has been adjudged, that if he does not take advantage of it in season, he does waive it.” Carpenter v. Aldrich, 3 Metcalf, 58. In Arkansas, under a statute similar to ours, it was decided that the failure of a non-resident plaintiff to file a bond for costs, was a matter in abatement only, and that the defendant, by pleading to the merits, waived it altogether. Clark v. Gibson, 2 Arkansas, 109. See also, the cases of Robertson v. Co. Com., 5 Gil., 559; Fonville v. Richey, 2. Richardson, 10; and Duncan v. Stint, 5 Barnewell and Anderson, 702.

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

Judgment reversed.


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    John E. Jackson, Pltff in Error, v. William S. Bailey, Deft in Error.
    error to McDonough.
    A debtor paying money, has the right to direct how it shall be appropriated ; and if tile creditor misapplies the payment, he. cannot complain if he loses the benefit of it. The application of the payment cannot be changed without the consent of the debtor.
    Bailey sued Jackson before a justice of the peace, in two suits at the same time, one for the balance due upon a note amounting to $10 85, and the other, to recover the amount of an account for $18 00. Judgment was rendered, by default in both cases, as follows: for $10 85 on the note, and for $8 00 on the account. Jackson paid the amount of the judgment on the account, and took an appeal from the judgment upon the note to the Circuit Court.
    On the hearing in the Circuit Court, it appeared that Jackson had paid Bailey ten dollars, which he directed should be endorsed upon the note; instead of doing this, Bailey had credited that sum upon the account, which was originally for $18 00, but was reduced by the credit to $8 00, for which sum the judgment was rendered. The Circuit Court, Minshall, Judge, presiding, at the May term, 1850, to whom the cause was submitted, affirmed the judgment of the justice of the peace.
    Jackson brings the case to this Court, and seeks to reverse the judgment of the Circuit Court; and assigns for error, the not allowing to him credit upon the note for the ten dollars, which he directed should be so applied; and the rendition of a judgment for eleven dollars, when only one .dollar was due upon it; and in not declaring that the judgment upon one suit, was a bar to a judgment in the other.

      Wabben and Edmunds, for Pltff in Error.
    Both suits were of the same nature, and together amounted to less than $100 00, and should have been consolidated, and the payment of one judgment satisfies both. A debtor may direct on what particular indebtedness money paid by him shall be credited. 2 Greenleaf’s Ev., 529-30; Pattison v. Hall, 9 Cowen, 747; 4 Phillip’s Ev., C. & Hill’s Notes, p. 131, note F, 371-2.
    R. S. Blackwell, for Deft in Error.
    1. The doctrine relative to the appropriation of payments was borrowed from the Civil Law, and adopted first by the Equity Courts, thence transplanted to Courts of Law. The doctrine is purely equitable, and each case must be governed by its own peculiar circumstances.
    The general rules are simple and of easy application. The debtor may appropriate it on what debt he pleases at the time of payment. If he neglect to do so, the creditor may, at any time, before litigation arises touching the appropriation. But if neither party exercises his right of appropriation until a controversy springs up, the law will apply it as justice and fair dealing may dictate, according to the intrinsic equity of the case. Bayley v. Wynkoop, 5 Gil., 449.
    But a party may waive his legal rights. Bank of Columbia v. Okely, 4 Whea., 235, 4 U. S. Cond., 439.
    Even after the debtor has exercised his right and directed the application of his payment-, the appropriation may be changed by the mutual consent of the parties; and in such case, the indebtedness first discharged, is revived by implication of law without an express promise by the party. Rundlett v. Small, 25 Maine, 29.
    And this assent may be implied from the acts of the parties. 25 Maine, 31; 5 Gil., 449.
    In this case the debtor directed the application, but his directions for some cause were disobeyed. The credit was placed on the account, instead of the note, and the creditor took his judgment for the balance of the account. This balance was paid by the debtor and the judgment satisfied. This is a waiver of his original rights.

      By allowing the credit on the note, also, injustice will he done, and another law suit will be the consequence.
   Treat, C. J.

We think the Court erred in not allowing the debtor credit, for the amount claimed to have been paid on the note. The amount in controversy was received by the creditor, with the written directions of the debtor to apply it on the note. It was, therefore, accepted as a payment on the note. It was, jpro tanto, a discharge of that particular indebtedness. It was the clear right of the debtor so to appropriate the money. He expressly exercised the right, and the creditor, in accepting the money, received it in part satisfaction of the note. The instant it was received, the. note, to that extent, was paid, whether the credit was ever endorsed thereon or not. "The creditor was not at liberty to disregard the appropriation made by the debtor, and apply the payment on another debt. The application of the payment could not he changed, without the consent of the debtor. Perhaps the parties might, by mutual consent, have transferred the credit to another demand, and, in that way, have revived the indebtedness originally discharged. But there is no evidence in the case to show, that the debtor ever assented to the payment being applied on the account the creditor held against Mm. The payment of the judgment recovered on the account, on which the ten dollars may have been credited, was no waiver by the debtor of his original rights, and no ratification of the ■change in the credit by the creditor. If he had, before the judgment was rendered, voluntarily paid the account, with knowledge that the payment was credited thereon instead of on the note, there would be more propriety in holding that he had assented to a transfer of the credit, and in not permitting him afterwards to insist on the benefit of the payment on the note. But this is a very different case. The payment of the judgment was compulsory. The debtor lost none of his defences to the note by paying the judgment. The creditor cannot complain, if he loses the benefit of the payment in question. It will be the result of his own wrongful misapplication of the appropriation.

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

Judgment reversed.


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    Ira Stout, Appellant, v. John Slattery, Appellee.
    APPEAL FROM ADAMS.
    If a party shows himself entitled to the remedy to be obtained By certiorari, the filing of the papers from the justice, before the plaintiff appears fir the Circuit Court, dispenses with the necessity of issuing the writ.
    If a notary public administer an oath, his signature to the jurat, without his seal of office, will be sufficient within the county of his residence; if to be- used out of the county, his seal of office, or some other evidence of his official character, will he indispensable.
    Our.s'atute does not make it the duty of a notary to verify his acts by his seal,, except in the acknowledgment of deeds.
    The Circuit Court of Adams county, Minshall, Judge, presiding, at May term, 1849, upon motion of the appellee, quashed the certiorari issued on behalf of the appellant. The facts- of the ease-are fully stated in the opinion of the Court,
    Warren & Edmunds, for Appellant.
    Williams & Lawrence, for Appellee.
   Treat, C. J.

Slattery sued out an attachment against Stout, from a justice of the peace. There was service on a garnishee, and a publication of notice to the defendant. On the 5th of February, 1849, a judgment was entered against the defendant, for $94 62, and, on the 12th of the same month, a judgment was entered against the garnishee in the same amount. On the 16th of March, 1849, the defendant obtained an order for a certiorari, and filed the same, and an appeal bond, in the Circuit Court. He stated, in his petition for the certiorari, that, by reason of absence from the State, he had no actual knowledge or notice of the pendency of the attachment, or of the rendition of the judgments therein, until the time allowed for an appeal had expired, and that he was not in any manner indebted to the plaintiff. The jurat to the petition was subscribed, u Calvin A. Warren, Hotary Public for said county of Adams.” Ho writ of certiorari was ever issued. A transcript of the proceedings before the justice was filed in the Circuit Court, on the 5th of April, 1849. In May, 1849, the plaintiff entered' a motion to dismiss the appeal, which was sustained by the Court; and that decision is now assigned for error.

This record presents but a single question, which did not-arise, and was not decided, in the case of Grallimore v. Dazey, ante, p. 143. On the principles of that case, the defendant clearly showed himself entitled to the remedy by certiorari; and the filing of the papers from the justice, before the plaintiff appeared in the Circuit Court, dispensed with any necessity for issuing a writ of certiorari.

The notary public, before whom the petition was verified, did not affix his seal of office to the jurat, and it is insisted, that his omission to do so, presents an insuperable objection to the proceedings ; in other words, that a notary can perform no official act, without evidencing it by his notarial seal. This position cannot be maintained. We are clearly of the opinion, that the failure of the notary to annex his official seal to the jurat, does not vitiate the proceedings based on the petition. Within the county of Adams, the addition of the seal was not necessary. If the petition was to be used in another county, the seal of the notary, or some other evidence of his official character, would be indispensable. In a case like this, the seal does not give validity to the act of the notary. It is only evidence of his authority to administer the oath. It is the usual mode of authenticating the act, but not the exclusive one. This is not like the case of process, which the law provides shall issue under the seal of the Court; nor the case of the performance of an act by an officer, which the law declares shall be done under his official seal. Our statute does not make it the duty of a notary to verify his acts by his notarial seal, except in the single instance of the acknowledgment of a deed. R. S., ch. 75; ch. 76, § 3 ; ch. 24, § 16. The rules of the common law may perhaps require some particular acts of a notary to be evidenced by his official seal, but the taking of affidavits is not one of them. The power to administer oaths is expressly conferred by statute, and is not one of the incidents of the office. The affixing of the notarial seal is not essential to the validity of his acts, except in cases where it is required by some rule of the common law, or some provision of the statute. In all other cases, his official acts, at least within the State, arc none the less valid, because they are-not authenticated by his notarial seal. The only difference relates to the proof of his authority. If the act is not evidenced, by the seal of the notary, his signature and official character-must be established by some other legitimate evidence. Clerks.of Courts are in the constant habit of taking affidavits, without attaching the seal of the Court to their jurats, and the validity of their acts, and the propriety of the practice, has never been questioned. It would hardly be contended, that perjury could not be assigned on such an affidavit, if the contents were material, and the party knew them to be untrue. And there is no difference in principle between the two cases. There is no more occasion for the seal in the one case than in the other. The oath is legally administered in either case. It is only when it becomes necessary to prove the making of the oath, that the seal of the officer, or some competent evidence of his authority, must be produced. The case of the Fund Commissioners v. Glass, 17 Ohio, 542, is an authority very much in point. A statute of . Ohio made it the duty of each notary to provide a notarial seal, with which to authenticate his official acts. By a subsequent statute, notaries were authorized to take the acknowledgment of deeds, and were required to make certificates of acknowledgment, and subscribe the same. It was held, that they need not affix their notarial seals to the certificates. The Court said: “ Under this law, the acknowledgment of this deed was taken, and to the certificate of acknowledgment the officer taking it did subscribe his name. This was all which the law under which he was acting required him to do.” It has been decided, that a Circuit Court will take notice who are justices of the peace, for the county in which it is held; and proof of the official character of these officers is never required, unless that particular matter is distinctly in controversy. Shattuck v. The People, 4 Scam., 477; Irving v. Brownell, 11 Ill., 402. The rule is one founded in reasons of public .convenience, and may with equal propriety be extended to notaries.

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

Judgment reversed.


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    James Boorman, Pltff in Error, v. William D. Freeman, et al., Defts in Error.
    ERROR TO MORGAN,
    If a defective appeal bond is filed in the Circuit Court, and the party applies for leave to file a new bond, he should be permitted to do so, within a reasonable time, to be named in the order granting leave.
    Boorman sued Freeman & Co. before a justice of the peace, upon an account. Freeman & Co. filed an account in set off, and recovered a judgment against Boorman for $24 38. From this judgment Boorman appealed to the Morgan Circuit Court; the appeal bond was signed by'an unauthorized agent in the name of Boorman. In the Circuit Court, Freeman & Co. moved to dismiss the appeal, because of the insufficiency' of the bond; Boor-man then filed a cross motion for leave-to file an amended bond, and that the cause be continued. Whereupon, the Circuit Court, Woodson, Judge, presiding, at November term, 1849, sustained the motion to dismiss, and overruled the motion to amend and continue, and dismissed the appeal.
    Boorman sued out a writ of error, and brings the cause to this Court; and assigns for error, the refusing the motion to continue the cause, and for leave to amend the appeal bond.
    D. A. Smith, for Pltff in Error.
    M. McConnel, for Deft in Error.
   Treat, C. J.

This case does not differ in principle from that of Bragg v. Fessenden, 11 Ill., 544. There, an agent executed the appeal bond in the name of the appellant, without authority under seal for that purpose. Subsequently and after the expiration of the time allowed by law for talcing the appeal, the appellant executed a power of attorney confirming the act of the agent. This Court held that the bond was sufficient, and reversed the judgment of the Circuit Court dismissing the appeal. Here the agent had no authority under seal to execute the appeal bond, on behalf of the appellant. But, when the appellee moved to dismiss the appeal, because of the defective execution of the bond, the appellant entered a cross motion for leave to file a new bond, which the Court refused. The two cases are identical in principle. In both, the agents had no competent authority to bind their principals. In one, the appellant was permitted to perfect his appeal, by the ratification of the defective bond; in the other, he offered to perfect his appeal, by the filing of a sufficient bond in place of the defective one. If a party can prevent the dismissal of an appeal, by confirming a bond executed without authority, he certainly should be allowed to accomplish the same result, by giving a new and valid bond. The statute provides : “If, upon the trial of any appeal, the bond required to be given shall be adjudged informal or otherwise insufficient, the party who shall have executed such bond, shall in no wise be prejudiced by reason of such informality or insufficiency ; provided, he will, in a reasonable time, to be fixed by the Court, execute and file a good and sufficient bond.” R. S., eh. 59, § 65. According to the construction put upon this statute, in Bragg v. Fessenden, and the cases there cited, this case is clearly within its provisions; and the Circuit Court erred in not giving the appellant leave to file a new bond. The proper order would have been, that he should file the bond within a reasonable time—the day to be named in the order—and in default theréof, that the appeal should be dismissed.

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

Judgment reversed.