text:
    Job Olcott et al., plaintiffs in error, v. The State of Illinois, defendant in error.

      Error to Lee.

    Words, figures and abbreviations may be used to designate lands against which a judgment is asked for the taxes, &c. due thereon, but the description must be so certain that a definite locality can be given them.
    A judgment against lands for taxes is not to he regarded as a unit, but as a several judgment against each particular tract of land ordered to he sold. The judgment is not in personam against the owners, for the satisfaction of which they are jointly liable, but merely a condemnation of each tract of land for the non-payment of the taxes due upon it. It may he valid as to a part of the lands returned by the Collector, and erroneous as to the rest.
    In cases of writs of error to judgments of the Circuit Courts directing a sale of lands for the non-payment of taxes, the Supreme Court will only inquire into the regularity and validity of so much of the proceedings as relates to the lands of the parties before the Court.
    Any number of persons interested in lands condemned by a judgment for taxes may join in a writ of error for its reversal, and if the judgment is valid as to part of the plaintiffs in error and erroneous as to the rest, it maybe aflirmed in part and reversed in part.
    All persons uniting in a writ of error to reverse a judgment against lands for taxes will he liable for the costs accruing thereon.
    Shit for taxes, in the Lee Circuit Court, at the April term, 1848, Hon. Thomas C. Browne presiding.
    A list of the lands against which taxes had been assessed and which were due and unpaid, and the printer’s certificate of publication of the notice of the intended application for a judgment having been filed, Stillman, Circuit Attorney, entered a motion for judgment. Heaton <k Hable appeared for the owners of the lands described in the list as being theOgée Reserve Section, and resisted the motion so far as those lands were concerned, but their objections were overruled by the Court, to which decision they excepted. Judgment was then entered in the usual form in such cases.
    The owners of the Ogee Reserve Section in their individual names, and of the Le Clere Reserve Section joined in a writ of error to reverse this judgment.
    The list exhibited in the record, embraced, among other lands, the following:

      The following errors were assigned :
    1. The Court erred in rendering judgment against the Ogee Reserve Section, and against the Pierre Le Clere Reserve Section, because the description in said list is uncertain and defective. ,
    2. The Court erred in rendering judgment for the taxes and costs for the years 1841, 1842, 1843, 1844.
    3. The Court erred in rendering the judgment aforesaid, because no notice had been given of the application for such judgment.
    4. That no suit for taxes was docketed, as required by
    the statute. ¡¡

    5. The Court erred in overruling the objections made to the Ogee Reserve Section, in township thirty seven north, range two east.

      6. The Court erred in rendering the judgment aforesaid in manner and form aforesaid.

      J. 0. Glover S' B. C. Coole, for the plaintiffs in error.
    In summary proceedings under a statute, its provisions must be strictly complied with. Day v. Cushman, 1 Scam. 476; Smith v. Hileman, ib. 325.
    The return of the officer does not show that these lands were omitted to be assessed for the prior years, but, on the contrary, it does show that they were assessed for those years.
    The suit was not properly docketed in the name of The State of Illinois v. Samuel Bowman et al. Rev. Stat. 445, § 57.
    Courts will not give the law a retrospective operation. Garret v. Wiggins, 1 Scam. 336; Robinson v. Rowan, 2 do. 563; Bruce v. Schuyler, 4 Gilm. 279.
    The judgment is void for uncertainty in the description of the lands recited in it.

      0. Peters, for the defendants in error.
    1. As to the first error, that the lands were insufficiently described:

      No mode of describing is required by statute. The 33d section of the Revenue Law of 1838-9 is re-enacted, (Rev. Stat. 446, § 62,) and it authorizes figures, &c. to be used in describing lands in advertisements and records for taxes, but does not require it. But any other description is sufficient. Such a description as would be good in an attachment or levy will answer here, Atkins v. Hinman, 2 Gilm. 451.
    Land may be described by name, as Black Acre, White Acre, &c. So here, the description by a name and not by lines or dimensions — “the Ogee Reserve Section.”
    2. As to rendering judgment against the lands for the years 1841-42-43-44:
    Whether the twentieth section of the Revised Statutes (Rev. Stat. 440,) is to have a retro-active operation or not, it has no application to these cases. That Act only applies to cases where there has been no assessment of taxes.
    Whether assessments were made upon these lands during these years does not appear from this record, except as it is to be inferred from the fact that the Circuit Court had jurisdiction of the subject matter and has rendered the judgment. To beget this jurisdiction, the return of the officer and the publication of notice to delinquents, is all that is required. Taylor v. The People, 2 Gilm. 350; Atkins v. Hinman, Ib. 446.
    The judgment of a Court of general jurisdiction is presumed to be right, unless the contrary is made to appear affirmatively. Graham v. Dixon, 3 Scam. 115.
    Nothing then appears on the record to show when the assessment was made. It is to be presumed to have been regularly made from year to 3rear, and before the passage of the Act of 1842-3 for the previous years. Were it otherwise however, the language of the Act is broad enough to give it a retro-active operation.
    3. As to there being no notice:
    The notice conforms substantially to what is required by the statute. These suits are not tobe defeated and the collection of the revenue delayed on mere technicalities. Atkins v. Hinman, 2 Gilm. 446; Bestor v. Powell, Ibid. 119.
    4. As to the objection that the suit was not properly docketed:
    The case of Atkins v. Hinman settles this question. In that case the cause was not entitled of any parties, and yet it was held sufficient.
    5. As to the fifth error assigned, no notice can now be taken of it. The bill of exceptions fails entirely to show what objections were made, or what proceedings were had in the Circuit Court. No particular error in law or fact is pointed out under this assignment, and the same may be properly said of the sixth assignment.
    6. It has been suggested that there was error in the amount of the judgment for costs.
    It is not made to appear by the record how the costs are made up. But the amount is in fact, no more than the statute allows.
    Costs of trial might have been added. If so, then the error is in favor of the plaintiffs in error; they cannot assign it for error here.
    It is a new question, but yet in analogy to other proceedings in rem, as in case of attachments, mechanics’ lien, &c., where the owner resists the judgment, the property becomes liable for the costs, and it is to be added to the debt, or claim for which the judgment is rendered. And we contend that under this statute, when an owner appears and contests, if judgment is rendered against the land, the costs of the trial will be added to the judgment with the other costs, and the land be sold for the whole.
    7. The owners of the land who entered their appearance in the Circuit Court, have waived the right of objecting to the sufficiency of the notice. The notice is merely for the purpose of compelling the appearance of the owner. If he appears without a regular notice, he waives all informalities. It is like appearances in attachments and other proceedings , in rem, in this respect.

      8. But what seems to us as decisive of this suit is the improper joinder of parties in this writ of error. We insist that each tract of land is to be considered as a separate defendant, and the owner of each tract must sue out his own writ of error. We would not say that the owner of several tracts may not sue out his writ of error as to all. Perhaps the case of Taylor v. The People may be authority for this, but it would violate all our ideas of writs of error, to tolerate the practice, that different owners, holding by different tenures, insisting perhaps upon entirely different grounds of defence, should be allowed to join in a writ of error.
    Though the statute prescribes the form of the judgment, which is to be general as to all the delinquent lands in the list, yet the effect is several, operating severally upon each tract. Besides, one owner may be quite willing to waive any error in the proceedings, so that the judgment may be good as to his lands until it is reversed — and yet, if this is to be treated as one general judgment for any error therein, one owner may reverse the judgment, so as to render the whole proceeding void as to all the lands. This result cannot be tolerated. The only way to avoid such a consequence is to adopt the rule that each owner must be put to his writ of error.
    Nor does the defendant waive the right to make this objection by joining in error.
    ./*/'*. H. Purple, for the plaintiff in error, in conclusion.
    The description of the lands is not sufficiently minute and specific. It is too general and uncertain.
    Lands omitted to be assessed one year cannot be assessed in another. There is no authority for such a proceeding in the statute. The Legislature never intend that an Act shall operate retrospectively, unless there is an express declaration to that effect. The Act referred to to establish this right is prospective merely.
    Counsel say that this Court will presume that the Circuit Court had jurisdiction. Jurisdiction in cases of this kind can only be obtained by the proper duties of the officers being performed. The appearance of the owners for the purpose of objecting to the judgment is not a waiver of any irregularities.
    This writ of error is prosecuted by several persons as plaintiffs, and this is objected to by the defendants in error. We can see no possible objection to proceeding in this manner. Cases of this character .are not governed by the general rules of pleading.
   The Opinion of the Court was delivered by

Treat, C. J.

There is a fatal objection to so much of the judgment as embraces the lands assessed to the plaintiffs in error. The judgment is void for uncertainty in the description of the lands in question. The description is so geneial and indefinite that the lands ordered to he sold could not be ascertained and located. Words, figures-and abbreviations may be used to designate the lands, but the description must be so certain that a definite locality can be given them. It is true that the section, township. and range — and as to a part of the lands, the half section, are given; hut what particular part of the section or half section was intended tobe assessed and sold as the property of one of the plaintiffs, there aré- no means of ascertaining. It is evident that the assessment and judgment were not designed to embrace the whole section or half section, because the same general description is several times used in reference to each section and half section. In every instance, the same tract is apparently assessed to several of the plaintiffs in error, and the judgment seems to pursue the assessment. The fact probably is that the plaintiffs in error are severally the owners of distinct portions of the reservations, but the record fails wholly to show of what portion and to what extent.

The question arises whether the judgment must he wholly reversed, or only s© far as it affects the rights of the plaintiffs in error. We do not regard the judgment as a unit, hut as a several judgment against each particular tract of land ordered to he sold. The judgment is not in personam., against the owners, for the satisfaction of which they are jointly liable, but merely a condemnation of -each tract of land for the non-payment of the taxes due upon it. The judgment may be valid as to part of the lands returned by tli.e collector, and erroneous as to the rest. In this case, if the preliminary proceedings were regular, so as to vest the Court with jurisdiction, the judgment may be good as to the lands properly described, and void as to the lands of the plaintiffs in error, by reason of uncertainty in the description. In cases of writs of error to judgments of the Circuit Courts directing the sale of lands for the non-payment of taxes, this Court will only inquire into the regularity and validity of so much of the proceedings as relates to the lands of the parties before the Court.

The only difficulty in the case is whether persons, not jointly interested, may join in the prosecution of a writ of error. This is purely a matter of practice, not affecting the rights of the parties, or the merits of the case, and we feel authorized to adopt the rule that will operate most conveniently in practice. We see no impropriety in permitting any number of persons interested inlands condemned by the judgment to join in a writ of error for its reversal. No evil can grow out of such a practice. If the judgment is valid as to part of the plaintiffs in error, and erroneous as to the rest, it may be affirmed in part and reversed in part. All uniting in the writ of error will of course be liable for the costs accruing thereon. Great inconveniences would result from the adoption of a different rule. The owners, of a large number of town lots or tracts of land would be compelled at an enormous expense to sue out as many writs of error, when in point of fact the whole matter could be the better settled in one proceeding. To hold that the present plaintiffs could not maintain this writ of error would involve the necessity of several distinct suits to test precisely the same question. The ordinary rules of practice do not seem to be strictly applicable or appropriate in this peculiar proceeding, so much unlike the common law actions.

We are not to be understood by this decision as sanctioning a departure by the State, in prosecuting a suit for taxes, from the ordinary mode of proceeding in other cases, except where the Legislature has otherwise provided, hut this decision is only intended to apply to the mode of bringing a case before this Court for decision.

So much of the judgment of the Circuit Court as relates to the lands assessed to the plaintiffs in error will he reversed.

Judgment reversed.


source: Caselaw Access Project

author: Caton, J.

license: Public Domain

text:
    Robert Hugunin et al., plaintiffs in error, v. Charles R. Starkweather, defendant in error.

      Error to Cook County Court.

    H. and K. purchased of C. certain lands, and executed their individual notes to C. and mortgages to secure the payment thereof, and on the same day, the notes were given up and an agreement in writing entered into hy them, wherein H. and K. stipulated that they would pay the amount of said notes upon certain notes of C. to 0. and others given for the same lands ; and C., on his part, agreed that, upon their malting such payments, the same should be applied upon, and be a discharge of their respective mortgages. C. subsequently assigned the agreement and the mortgages to M., who further assigned them to S. The latter filed a bill to foreclose, the payments not being made, to which there was a demurrer, which was overruled, and a decree pro confesso, &c., entered : Held, that it was the evident intention of the parties that the mortgages should still remain as subsisting securities for the payment of the debt; that it was not the intention to give to 0. and others any better security, but simply to provide for their own convenience in having C’s liabilities discharged in the manner prescribed in the agreement.
    Where a reference was made to a Master to compute the amount due upon certain notes, and he made his report to the Court, when no objections were made to its confirmation, and it was accordingly confirmed, but objections were made in the Supreme Court, it was held that they could not be inquired. into by the latter tribunal.
    Bill in Chancery to foreclose a mortgage, &c., filed by • the defendant in error against the plaintiffs in error, in the Cook County Court, and heard before the Hon. Hugh T. Dickey, at the. October Term, 1848. The defendant, Hugunin, demurred to the bill, and the demurrer was overruled, and a decree pro confesso, that the defendant pay the complainant the sum of $2475-89, &c„, reported by the Master, and in default thereof, that the mortgaged premises be sold, &c.
    A statement of the material facts appears in the Opinion of the Court.

      E> W. Tracy, for the plaintiffs in error.
    1. The giving up the note which the mortgage was given to secure, and taking in lieu of it an agreement to pay in different manner and at different times, operated to cancel the mortgage : And if the parties supposed otherwise, and supposed that the mortgage would continue in force as security to the new agreement, it was a mistake of law which a Court of Equity will not mend.
    2. The agreement set forth in the bill was an assignment of a debt by Case to Ogden, and Taylor, and McGregor, (his creditors.) If the mortgage operated to secure the performance of this agreement, then it must be considered as assigned to Ogden and Taylor and McGregor, the debt being the principal and the mortgage the incident, and the assignment of the debt carrying with it the mortgage as the incident to it, and consequently the equity is in Ogden and Taylor and McGregor, and they are the proper complainants.' Jackson v. Blodgett, 5 Cowen, 202.
    3. The agreement itself being an assignment could not be assigned by Case so as to give his assignee any right of action.
    4. If the mortgage has any force, it is to secure the payment of the note mentioned in the agreement, and the bill does not state that those notes are unpaid.
    5. Unless the complainant or his assignor has paid the notes mentioned in the agreement, he cannot combine the equities in himself.
    6. The decree should be for the amount of the notes mentioned in the agreement remaining unpaid, if for anything.

      J. Ii. Collins-, for the defendant in error.
    I. The surrender of the note was not an extinguishment of the mortgage.
    1. It was not so intended between the parties, but a new arrangement was made by which Hugunin agreed to pay the same debt to Ogden, Taylor & McGregor, instead of Case.
    2. The new agreement was substituted in the place of the note, and the new agreement expressly recognizes- the mortgage as a valid subsisting debt, and provides for the payment of it, in these words : “Now, therefore, I, Robert Hugunin, do hereby agree1 with said Case to pay the said $1,330-83 secured by my said mortgage, by paying one third part of said notes,” &c.
    II. The defendant in error was entitled to a decree for the sale of the premises on the ground of a lien for the purchase money.
    The agreement set forth in the bill shows that the debt for which the decree of foreclosure was granted was the consideration agreed to be paid by Hugunin to Case for the land described in the mortgage. It recites: “And whereas the said Calvin Case on the 13th day of July, 1836, conveyed one undivided third part of said lot of land to Robert Hugunin, and on the same day he also conveyed one undivided third of said lot of land to- Walter Kimball, in consideration of which conveyances, they respectively executed to the said Case as security for the purchase money, their individual mortgages on said land for $1,330-83.”
    The rule of law in relation to real estate is that the vendor has, without any express agreement for that purpose, a lien on the premises conveyed, even after possession . thereof is delivered to the purchaser, for the purchase money, provided he has not taken a distinct and independent security therefor, and the land has not passed by a bona fide sale to a third person. 6 Wend. 82 ; 3 Sug. Vend. 124, §§ 18, 20, 22.
    Upon the whole, therefore, it seems quite clear, that taking a bond or a note for the purchase money, or any part of it, will not discharge the vendor’s equitable lien on the estate. Ibid. 127, § 30.
    The assignee of a bond for the purchase money of land has a lien on the land, if the assignor had. 1 Barb. & Harr. Dig. 188, § 22; 4 Littell, 289.
    The assignee of a bond not negotiable may sue in a Court of Equity, butmustalways show that the assignment was for value. 1 Barb. & Harr. Dig. 196, § 83.
   The Opinion of the Court was delivered by

Caton, J.

Hugunin, on the 13th of July, 1836, executed his note and mortgage to Case, to secure the payment of the sum of $1330-83, and afterwards on the same day, by the agreement of the parties, the note was given up and in lieu thereof, Hugunin entered into an agreement with Case, to pay the same amount of money to Ogden, Taylor and McGregor, as follows :

“Whereas William B. Ogden, William Taylor and Alexander McGregor of the town of Chicago, Cook county and State of Illinois on the first day of July 1836, conveyed to Calvin Case 15 ig0 acres of land being part of the south fraction of the north west quarter of section numbered twenty eight, township thirty nine north, range fourteen east of the third principal meridian in Chicago land district, as by reference to said deed will more fully appear. And whereas the said Calvin Case as security of the consideration of the said conveyance executed his three individual notes to William Taylor and William B. Ogden each for $294-53, each note due two, three and four years after date with interest at seven per cent, payable annually. Also, his three individual notes of $499-06 each to Alexander McGregor, due at the same time of those to Taylor, all of the above notes payable at the Branch of the State Bank of Illinois in Chicago. Also, to McGregor, his (Case’s) two indorsed notes, the one due eight months after date for $261-25 and the other for $267-14 due twelve months after date and both negotiable and payable at the Branch of the State Bank in Illinois in Chicago; also to William Taylor his two indorsed notes, the one for $130-36, due eight months after date and the other for $133-57 due twelve months after date 5 also to William B. Ogden his two indorsed notes, the one for $130-36 due eight months after date, and the other for $133-57 due twelve months after date, the notes to both Taylor and Ogden negotiable and payable at the Branch of the State Bank of Illinois in Chicago; and whereas the said Calvin Case on the 13th day of July 1836 conveyed one undivided third of said lot of land to Robert Hugunin, and on the same day he also conveyed one undivided third of said lot of land to Walter Kimball, in consideration of which conveyances, they respectively executed to the said Case as security for the purchase money their individual mortgages on the said land for $1330-83.

Wow, therefore, I Robert Hugunin do hereby agree with the said Case to pay the said $1330*-83 secured by my said mortgage by paying one third part of the said notes given by the said Case as aforesaid, when they shall fall due, and I, the said Walter Kimball do hereby agree with the said Case to pay the said $1330-83 secured by my said mortgage by-paying one third part of the said fcnotes given by said Case as aforesaid when they shall fall due, and the said Case hereby agrees with the said Kimball and Hugunin, that upon their making such payment as aforesaid, the same shall apply upon, and be a discharge of their respective mortgages.

In witness whereof the said parties have hereunto subscribed their names, this 13th day of July, 1836.

(Signed) C. Case,

Rob’t. Hugunin.

Walter Kimball.”

In 1839, Case assigned this agreement and the mortgage to McGregor, and in 1846 he assigned both to the complainant. The bill further shows that about the sum of $1330-83, the principal sum mentioned in the condition of the mortgage, with interest thereon at the rate of seven per centum per annum from the 13th day of July, 1836, still remains due and unpaid, and asks a foreclosure of the mortgage. A demurrer was filed to the bill, which was overruled by the Court, and a decree, ordering the bill to be taken as confessed, entered, and a reference made to the Master to compute the amount due upon the mortgage. Upon the coming in and confirmation of the report, a decree was entered ordering the premises to be sold, &c.

It is insisted on the part of the defendant, Hugunin, that by giving up the note which was given for the same sum of money to secure which the mortgage was executed, the mortgage was canceled, and the party must rely alone upon the special agreement, which was executed in lieu of the note. This may be so unless it is manifest that the parties intended that the mortgage should still remain a subsisting security for the payment of the debt. When we examine this agreement with a view to ascertain the intent of the parties, no doubt can be left on that subject. The agreement recites certain notes which Case owed to Ogden, Taylor, and McGregor, and the execution of the mortgage as security for the specified sum, and then proceeds: “I, Robert Hugunin, do hereby agree with the said Case to pay the said $1,330'83, secured by my said mortgage, by paying one-third part of the said notes given by the said Case as aforesaid when they shall fall due.” And Case, on his part, agrees that such payments, when made, shall apply upon, and be in discharge of, said mortgage. It was certainly competent for the parties, by their agreement, to change the mode, or particular terms of payment, or even amount, and still retain the mortgage as security for the sum due, if they thought proper. Such an agreement was not immoral, and it violated no law; and it would be hard to assign any reason why parties capable of contracting might not enter into such an agreement. If they have not made such an agreement, then certainly a mistaken supposition on their part that they had made such an one can avail nothing. The question is, what is the fair construction and legal effect of this agreement? That depends upon the intent of the parties, as expressed in the agreement. The mortgage is spoken of as still subsisting as a valid security for the payment of the $1,330-83, and that payments made, according to the stipulations of the agreement, should apply upon, and be in discharge of, the mortgage. Should we hold that this mortgage was intended to be canceled by that very agreement, I am at a loss to know what meaning we should attach to these expressions. The intent of the parties that the mortgage should continue a subsisting security is so manifest from the whole tenor of the agreement, that it neither requires argument or construction. If such was the intention of the parties, as manifested in the writing, then that is their agreement.

Again it is said, that if this agreement did not extinguish the mortgage, then it operated as an assignment of it to Ogden, Taylor, and McGregor. But this was not the intent of the parties nor the legal effect of the agreement. It was not their intention to give Case’s creditors any better security, but it was simply to provide for their own convenience, that Hugunin should pay the money due to Case, to be applied on those outstanding notes. His failure to pay Ogden and others as he had agreed, gave them no right of action either upon the agreement or the mortgage, nor did the payment of .those notes by Case after their maturity extinguish the mortgage. The mortgage was not an incident to those notes, nor to secure them, but it was to secure the money mentioned in its condition, while the agreement authorized the mortgagor to pay the amount to other parties on account of Case. If Hugunin has performed his agreement by making the payments as he has stipulated, then he should have set that up as a defence; but not having performed that agreement, the mortgage is still subsisting, and the party has a right to have it foreclosed.

Whether the decree is for too much or too little, is not before us. It was referred to a Master to compute the amount due. He made his report, to which no exceptions were taken. It was ratified and confirmed by the Court, and cannot now be inquired into. It is hardly necessary to say that this is not the proper place to take an exception to the report of a Master for the first time. Indeed, the only question before us is whether the demurrer was properly overruled or not.

We find no error in the record, and the decree of the County Court is affirmed with costs.

Decree affirmed.


author: Treat, C. J.

text:
    James McKay, appellant, v. William Bissett et al., appellees.

      iAppeal from Lake..
    In a bill in Chancery to 'correct an alleged mistake, the complainant based his claim to relief on the ground of actual notice to a subsequent purchaser. • The answer positively denied such notice, and there was no proof to sustain the allegation. The complainant then insisted that he was not a purchaser for a valuable consideration, and that, therefore, proof of actual notice was unnecessary. There was no allegation to this effect in the bill: HeU, that the complainant, if he had intended to rely on this point, should have distinctly so stated and charged in the bill.
    A complainant must recover, if at all, on the case made by his bill. He cannot state one case in his bill, and make out a different one in proof. The allegations and proofs must correspond; the latter must support, and not be inconsistent with the former. Although a good case may appear in the evidence, yet if it be variant from that stated in the bill, the bill will be dismissed. The defendant has the right to answer and contest the case on which the complainant claims relief, and he is not required to explain or controvert what is not there stated as the foundation of the claim.
    Bill in Chancery, in the Lake Circuit Court, filed by the appellant against the appellees.
    The bill alleged that the complainant on or about the 13th day of September, 1842, became bound with Burleigh Hunt, as his surety, unto Jesse H. Foster in the penal sum of $800, on the condition following, to wit: “The condition of the above obligation is such that whereas the above bound Burleigh Hunt and James McKay has this day sold to the said Jesse H. Foster, his heirs & assigns, for the sum of $800, $799 in hand paid, the receipt of which is hereby acknowledged and one dollar to be paid on the 22d of September, A. D. 1843, all the following described lot or parcel of land, to wit: Lot numbered (29) twenty nine and the building thereon, being part of section sixteen, in township numbered forty four north, range numbered eleven east of the third principal meridian, designated on the map of the said section as made by the trustees of school lands within said township, the same being in the county of Lake and State of Illinois, upon the payment of said sum being made at the time and in the manner aforesaid to the said Burleigh Hunt and James McKay, their heirs, executors and assigns, covenant and agree to and with the said Jesse H. Foster, his heirs, executors, administrators and assigns to execute a good and sufficient deed of conveyance in fee simple, free from all incumbrances with full and proper covenants of warranty for the above described premises : Now if the said Burleigh Hunt and James McKay shall well and truly keep, observe and perform their said covenants and agreements herein contained on their part, then this obligation is to be void, otherwise to remain in full force and virtue.”
    The bill further alleged that said Hunt, at the request of said complainant and to save him harmless as surety .aforesaid, on or about the 20th of November 1842, procured William Bissett to convey by a deed of general warranty to complainant the following described land, to wit: The north half of the north east fractional quarter of section twenty eight, in fractional township forty five north, range twelve east of said third meridian, containing eighty acres, for the consideration of $100, as was expressed in the deed thereof; that the complainant, on the 25th day of said November, by his bond of that date bound himself in the penal sum of $10,000 to the said Hunt, to the purport that if the said Hunt should save the complainant harmless as aforesaid, the said complainant would, on request, on or before the first day of October then next convey to said Hunt, or his assigns, the land last mentioned; that on or about the 27th day of May, 1843, the bond first mentioned was canceled and delivered up by said Foster to the complainant; that after such delivery, to wit, on or about the 24th day of May, 1844, the complainant, at said Hunt’s request, conveyed said land to said Bissett, excepting and reserving lots two and twelve in block seven, and lot three in block one, and one square acre lying in the north east corner of said north east quarter of said section in McKay’s addition to the town of Little Fort.
    The bill further alleged, that during the time the complainant was holding said land under said deed from said Bissett to him, it was laid off by the complainant into town lots as an addition to said Little Fort, at the request of said Hunt and Bissett, and the plat thereof was recorded as “McKay’s addition;” that on or about the 26th day of June, 1844, Bissett conveyed said land, excepting and reserving said lots and the square acre aforesaid, to Rufus Tiffany for the alleged consideration of $2700, and that said Tiffany afterwards, on or about the 1st day of July then next ensuing, conveyed said land, excepting the said described lots, to William C. Tiffany, his son, for the alleged consideration of $5200; that the complainant, between the 1st and 24th day of May bought of, and paid for said lots so reserved as aforesaid, to wit: Lot No. three in block three, not block one as reserved in McKay’s addition, and that lots two and twelve in block seven, and one square acre aforesaid, were, at the request of said Hunt and with the knowledge and assent of said Bissett, conveyed by the complainant to other persons while he held the title as aforesaid.
    It was further alleged in said bill, that there was a mistake in the re-conveyance to said Bissett, to wit: “Lot No. three in Block No. one (1)” was so described by mistake, and was intended to be lot No. three in block No. three, and that there was no such lot as lot No. three in block No. one, and that the intention to reserve lot three in block three, was well understood by said Bissett at the time said ¡re-eonveyance was made known to him by complainant, but that he was not aware of the misdescription until after said re-conveyance was made, and that he repeatedly afterwards admitted that it was a mistake; that said Rufus Tiffany had notice from said Bissett of said mistake, and that his son also had actual notice, before taking the deed from him, of the reservation and the mistake; that said Rufus Tiffany, before the conveyance to his son, was repeatedly requested by the complainant to quit-claim said lot three in block three to him, and that after such conveyance, the said William C. Tiffany was similarly requested, but that both refused to accede to his said request.
    It was also alleged in said bill that a judgment was recovered by the State Bank of Illinois and others against said Hunt and others, and an execution sued out after said re-conveyance, and levied on said lot three in block three, &c.
    The bill concluded with a prayer for the correction of the alleged mistake, and that the said William C. Tiffany execute and deliver a deed to complainant, &c., and that the said plaintiffs in said judgment be enjoined from selling under said levy, &c.
    The defendants Tiffany, in their answer to the bill, admitted the conveyances from Bissett to Rufus Tiffany, and from the latter to William C. Tiffany for a valuable consideration. As to the alleged purchase by McKay from Hunt, &c., between the first and twenty first days of May aforesaid, the defendants stated that they had no knowledge of it, but believe that it was not true that such a purchase was made for a good or valuable consideration paid, and with the knowledge and assent of Bissett. They alleged that from an examination of the plat as originally made, a lot was regularly laid off and platted, which, they believe, in the regular order of numbering, would have been designated as lot three in block one, but that the lines appear to have been since erased, but by whom the same was done they do not know. The answer, which was joint and several, denies the notice and knowledge charged in the bill, and the allegations of the bill in this respect were not sustained by the proof.

      The answer claimed benefit and advantage of certain defects in the bill, want of proper allegations and of its general insufficiency to entitle the complainant to relief, and asked for the same benefit as if a demurrer had been filed to the bill for the same causes.
    The cause was submitted upon the bill, answers, replication and proofs, to the Hon. Hugh T. Dickey, then Judge of the Cook County Court, presiding in said Lake Circuit Court at the request of the Judge of said Court, who took the same under advisement. At the September special term, 1848, the issues having been found for the defendant, the bill was dismissed.

      B. S. Morris, for the appellant,
    among other points, contended that the Tiffanys were not purchasers for a valuable consideration paid before notice of complainant’s claim, and that they were not, therefore, injured in any way. They did not aver in their answer that either of them ever paid anything for the lands and tenements conveyed to either of them, either before or since notice, and that, therefore, their answer was wholly defective and insufficient for that purpose. He contended that a bona Jide purchaser is one who has not only obtained the legal title, but has also paid his money in full'before notice, and has proved it. In support of this proposition, he cited 1 Story’s Eq. Jur. 664 c; 2 do. 1502 ; Wood v. Mann, 1 Sumner, 506; Flagg v. Same, 2 do. 487; Thompson v. Mason, 4 Bibb, 198.

      E. W. Hoyt, for the appellees.
    The answer fully denies the allegation of notice, and the testimony of two witnesses at least, proving notice, is necessary to overcome this positive denial. Lube’s Eq. PI. 112.
    The only witness who assails this denial is Bissett, but by the testimony of a witness who, as Bissett swears, was present at the time of the notice alleged to have been given to Rufus Tiffany, the answer is fully sustained. He disproves the fact alleged.

      It is contended by the complainant that there is no proof that William C. Tiffany is a purchaser for a valuable con-, sideration, and that he is a mere trustee. The bill does not seek or ask for relief on this ground, but on the ground of notice. The complainant cannot thus change his position and claim that the conveyance is fraudulent or without consideration, not having so alleged in his bill. Story’s Eq. PL §§ 263, 264.
    It is also contended that the Tiffanys cannot be protected as bona fide purchasers without notice, because the full consideration has not been paid, and to sustain this position, the complainant’s counsel cites 1 Sumner, 506, 2 do. 487, and other authorities. But these eases do not sustain his position. They only show that the complainant may, under some circumstances, entitle himself to the balance or to a portion of the consideration money remaining unpaid. See 1 Sumner, 547-52; 2 do. 507-12.
    Again we say that if the complainant intended to rely upon this ground, he should have charged the facts instead of attempting to mislead by placing his claim upon the sole ground of notice. It is a material fact which the defendants were entitled to controvert, but upon which no issue could be taken unless charged in the bill.
    The case cited from 4 Bibb, was where the heir was allowed to set up the statute as a bar to the parol contract of his ancestor. So also may a devisee. May not a purchaser for a consideration, whether with or without notice P
   The Opinion of the Court was delivered by

Treat, C. J.

The question of notice is decisive of this case. The complainant alleges in the bill, that the defendant, William C. Tiffany, in whom the legal estate in the lot is vested, had actual notice of the mistake in the description of the lot in the conveyance to Bissett. This is made the basis of his right to relief as against this, defendant. The charge of notice is explicitly denied in the answer. There is no proof whatever to. sustain the allegation. It is insisted, however, by the counsel for the complainant, that this defendant was not a purchaser for a valuable consideration, and therefore proof of actual notice is unnecessary. It is a conclusive answer to this position to say that the bill does not place the right to relief upon this ground.- A complainant must recover on the case made by his bill. He is not permitted to state one case in the bill, and make out a different one in proof. The allegations and proof must correspond ; the latter must support, and not be inconsistent with, the former. Although a good case may appear in the evidence, yet if it be variant from the one stated in the bill, the bill will be dismissed. The defendant has the right to answer and contest the case on which the complainant claims relief. Harrison v. Nixon, 9 Peters, 483; Boon v. Chiles, 10 do. 177; 1 Smith’s Ch. Pr. 346; Doyle v. Teas, 4 Scam. 202. If the complainant intended to rely on the fact that the defendant was not a purchaser for a valuable consideration, he should have distinctly so- stated and charged in the bill. The defendant could then have shaped his case accordingly. As it is, he was not called on to explain and controvert such an allegation.

The decree of the Circuit Court is affirmed with costs.

Decree affirmed.


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    David Clay et al., appellants, v. Jacob Boyer, appellee.

      Jlppeal from Stephenson.

    In an action for cutting trees, the plaintiff must prove that he was the owner of the land on which the trespass was committed.
    In an action for cutting trees, the plaintiff proved by two witnesses that the land on which the trespass was committed belonged to him. No objection was made by the defendants to this testimony, but, after the cause had been submitted to the jury, their counsel asked the Court to instruct the jury that if the plaintiff had failed to prove by the production of paper title that he was the owner of the land on which the trees were cut, oral proof of such fact was not sufficient. The Court refused the instruction, because parol proof had been given and not objected to : Held, that the defendants, by not objecting to the introduction of the parol testimony, dispensed with the production of the higher evidence.
    This was a suit for cutting trees, originally commenced by the appellee against the appellants, before a justice of the peace of Stephenson county, and tried before a jury, who rendered a verdict in favor of the defendants below. The plaintiff appealed to the Circuit Court.
    At the April term 1849, the Hon. Benjamin R. Shelden presiding, the cause was submitted to a jury, and a verdict rendered in favor of the plaintiff in the appeal for thirty dollars, upon which there was judgment.
    The bill of exceptions set forth, in general terms, the testimony given on the trial in the Circuit Court, as also the instruction asked. The testimony was oral and showed that the land trespassed upon belonged to the plaintiff, to the introduction of which no objection was interposed. After the cause had been submitted to the jury, the counsel for defendants asked the Coúrt to instruct the jury that if the plaintiff had failed to prove by the production of paper title that he was the owner of the land on which the trees were cut, oral proof of such fact was not sufficient. The Court refused to give the instruction because parol proof of such fact had been given and not objected to.

      0. Peters, for the appellants.
    1. The instruction asked for by the defendants below, ought to have been given. Though generally, in an action of trespass, it is not necessary to show paper title, and perhaps, not even in a case for the penalty under the Act against trespassers, yet the instruction was made proper in this case, by the state of the evidence and the facts proved. The evidence failed to show possession in the plaintiff. The plaintiff was willing to rest his case on parol testimony, when it was necessary for him to show that he was the ownfer in fee simple. Wright v. Bennett, 3 Scam. 253.
    It is no answer to this to say that the defendants below let in the evidence without objection on their part; the evidence so far as it went was competent, admissible, and if it had been followed up by proof of possession, it might have been sufficient, but certainly the Court will not sustain a verdict when there is no evidence to support it, and this instruction was virtually saying to the jury that such evidence did not prove a fee simple in the land. Jarrot v. Vaughn, 2 Gilm. 138; Pittman v. Gaty, (ante 186); Whitesides v. Divers, 4 Scam. 336.
    But whether the instruction was rightly refused or not, the Court will look into the evidence, the whole record, and see if there is anything to sustain the verdict. Like an action of ejectment, if a verdict goes for the plaintiff, where the whole evidence shows that he has wholly failed to make a title, the Court will reverse it.
    There is nothing to show that there was anything malicious in the entry, or that there was anything more than a mere involuntary trespass, or acts done under a mistake of boundaries.

      E. S. Leland, for the appellee.
    The party should have objected to the parol testimony when it was offered. Nichols v. Hayes, 13 Cowen, 156. Not having done so, the objection was waived. Waldo v. Russell, 5 Missouri, 387; Dunham v. Simmons, 3 Hill’s (N. Y.) R. 609; House v. Low, 2 Johns. 378; McKee v. Nelson, 4 Cowen, 355; Phil. Ev. Cowen & Hill’s Notes, 1474.
   The Opinion of the Court was delivered by

Treat, C. J.

The plaintiff was bound to show that he was the owner of the land on which the trespass was committed. Wright v. Bennett, 3 Scam. 258; Whiteside v. Divers, 4 do. 336; Jarrot v. Vaughn, 2 Gilm. 132. The defendants permitted him to prove it in his own way, and without objection. The bill of exceptions does not set forth the evidence in detail, but states generally, in relation to this part of the case, that two witnesses testified that the land belonged to the plaintiff. If the testimony given by them would have been competent in any state of the case to prove the ownership, then the Circuit Court committed no error either in refusing to give the instruction or grant a new trigl. The question is not whether the proof was the best which the nature of the case admitted of, but whether it was relevant and tended to establish the fact of ownership.

The defendants by their silence, dispensed with the production of higher evidence, and allowed the plaintiff to prove this branch of his case by any legitimate testimony, although it might be of an inferior character. If they desired to hold the plaintiff to strict proof of title, they should have objected to the evidence when offered. By permitting it to be received they could not afterwards call upon the Court to exclude it or direct the jury to disregard it, unless it was manifestly irrelevant or incompetent. If it clearly appeared from the bill of exceptions that the testimony actually given by the witnesses was incompetent, then the allegation of ownership was not made out, and the defendants were entitled to a new trial. Pittman v. Gaty, (ante 186.) This, however, does not affirmatively appear. The precise character of the evidence is not given. It may have been proper. We can readily conceive how the plaintiff may have shown title to the land by the oral statements of the witnesses. Proof by them that he had the actual possession of the premises under claim of title would authorize the presumption that he was the owner.

The witnesses may have stated from recollection the contents of documentary evidence of title. Such proof, admitted without objection, would not be improper, because in a certain contingency — the loss of the original- — the recollection of witnesses might be the only evidence capable of being produced. The generality of the bill of exceptions, the phraseology of the instruction asked, and the reason assigned by the Court for refusing to give it, render it not improbable, that the testimony, though of an inferior grade, was not purely incompetent.

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

Judgment affirmed*


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    John S. Armstrong, appellant, v. Francis H. Cooley et al., appellees.

      Jlppeal from La Salle.

    It is not necessary, in order to maintain an action for damages for the destruction of stacks of grain and hay by reason of a fire set out by the defendant, that the plaintiff should be the owner of the freehold where such stacks were standing.
    If a fire be set out in the prairie by a servant under the direction of his master, j the latter is responsible for all of the consequences resulting from it, and he ■ cannot shield himself from such responsibility by showing that bis instruc- j tions were not strictly pursued by his servant in doing the illegal act Even' when the act is legal, he is responsible for the manner of its performance, if j done in the course of his employment, and not in wilful violation of his in- i structions. '
    Trespass on the Case in the La Salle Circuit Court, brought by the appellees against the appellant, for damages occasioned by setting out a fite on the prairie, heard before the Hon. John D. Catón and a jury, at the November term 1847.
    The substance of the pleadings in the case is stated in the Opinion of the Court.
    During the progress of the trial, the plaintiffs below asked, among other instructions, the following, which was given : “4. That if the jury believe from the evidence that Armstrong gave directions to McCawley and Austin to set out the fire that consumed the plaintiff’s stacks, and the fire was set out by them in pursuance of these directions, and would not have been set out if directions had not been given by Armstrong, that Armstrong is liable for the damage done plaintiffs, although McCawley and Austin may notj in all respects, have followed Armstrong’s directions.”
    The defendant asked that the following instruction be given to the jury, which the Court refused to give : “1. If the jury believe from the evidence that the fire was set out by Austin and McCawley with the wind in a different direction from the direction Armstrong told them to set it with, then that Armstrong is not responsible for their acts.” ■
    The jury returned a verdict of guilty, and assessed the plaintiff’s damages at $215-75, upon which verdict the Court rendered a judgment.

      J. C. Champlin, for the appellant, submitted the cause on his part without argument.

      Jl. Hoes, for the defendants in error, submitted the following brief:
    I. The matters alleged in the plea, if true, do not constitute a full defence to the causes of action set forth in the second, third and fourth counts, which the plea professes to answer. 6 Comyn’s Dig. 103-4-5; 1 Chitty’s PI. 543-4.
    II. The second assignment of errors cannot be sustained because—

      First. The exception taken was general to all of the instructions on the part of the plaintiff, and the defendant failed to specify the particular instructions to which he intended to except as erroneous.

      Second. The instruction is not erroneous, but lays down the law, as applicable to the case under consideration correctly. Joel v. Morrison, 25 Eng. Com. Law R. 511; Sleath v. Wilson, 38 do. 249; 19 Wend. 343.
    III. The third assignment of errors cannot be sustained because—

      First. The instruction asked was erroneous, and had a tendency to mislead the jury.

      Second. The third instruction given on the part of the defendant in the Court below, covered the whole ground, and lays down the law correctly, if this case is to be considered as standing on the same* footing as if Austin and McCawley had been employed in the transaction of lawful business. Bland v. The People, 3 Scam. 366; Hays v. Borders, 1 Gilm. 46-66.
    IV. The fifth assignment is embraced in the first, second, and third.
    All the evidence is not inserted in the bill of exceptions, and the only questions that can arise are upon the instructions and the demurrer to the plea of liberum tenementum.

    V. The act of setting out the fire.being an unlawful act, Armstrong is responsible as a joint wrong doer, and it is not necessary that the relation of master and servant should exist in order to charge him. Rev. Stat. 179, § 158 ; Whitney v. Turner, 1 Scam. 253.
   The Opinion of the Court was delivered by

Treat, C. J.

The plaintiffs by their declaration claim to recover damages for the destruction of certain stacks of grain and hay by reason of a fire set out in the neighborhood by the defendant. The second plea avers, that the land on which the stacks were standing was the freehold of the defendant, and not of the plaintiffs. The Court sustained a demurrer to the plea, and that decision is assigned for error. The plea is no answer to the declaration. The declaration proceeds not on the ground of an injury to the freehold, but for an injury to personal property standing thereon. The plaintiffs may well have been the owners of the personalty, and entitled to damages for its destruction, without having any interest in the realty.

The Court committed no error either in giving the fourth instruction asked by the plaintiffs, or in refusing the first instruction asked by the defendant. If the fire was set out by McCawley and Austin in pursuance of the directions of the defendant, he is responsible for all of the consequences resulting from it. Nor can he shift the responsibility by showing that they did not strictly pursue his instructions. If the destruction of the property was caused by his direc=tions, he must compensate the injured party. If the master instructs his servant to do an illegal act, he is liable for the consequences, although the servant in doing the act does not strictly adhere to his commands. Even when the act is lawful, he is .responsible for the manner of its perform-» anee, if done in the course of his employment, and not in wilful violation of his instructions. Johnson v. Barber, (ante, 425.)

The bill of exceptions does not purport to contain all of the evidence. We cannot, therefore, pass on the propriety of the finding of the jury, or the decision of the Court refusing to grant a new trial.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


text:
    The County of La Salle, plaintiff in error, v. William Simmons, defendant in error.

      Error to La Salle.

    Where payment of money is compelled by undue advantage taken of the situation of the party paying, and it is against equity and good conscience that the payment should be retained, the money so paid can be recovered back by the party paying it.-
    Thus, where County Commissioners gave notice that they would grant a certain Ferry License to the person who would donate the largest sum to the County, and, several offers being made, the person who had previously kept the ferry, and was an applicant for a license to continue the same, finally offered §500, which offer was accepted by the Commissioners and the money paid; Held, by the Court, that, inasmuch as the law in force at the time of this transaction, authorized County Commissioners, in granting a ferry license, to impose an annual tax not exceeding one hundred dollars, they had no right to annex conditions or impose restrictions not prescribed by the statute, and that the §500 was to be considered a compulsory payment which could be recovered back: Held, also, that interest can be recovered on a compulsory payment thus made.
    The declarations of County Commissioners are not evidence against the County unless made while officially representing the County and engaged in the transaction concerning which the declarations are made.
    A book kept in the Clerk’s office of the County Commissioners, under their direction, respecting the affairs of the County, though not a public record, is yet prima facie evidence against the County of the facts stated therein.
    Debt, in the La Salle Circuit Court, brought by the defendant in error against the plain tiffin error, to recover back the amount, with interest, of a payment alleged .to have been illegally enforced from the defendant in error by the plaintiff in error. The case was tried by the Court below and a judgment rendered for the plaintiff below for $500 debt and $292*50 damages.
    The pleadings and evidence are set forth in the Opinion of the Court.

      J. C. Champ lin, for the plaintiff in error.
    The finding in this case cannot be sustained, because — -
    I. The finding is based on incompetent testimony in regard to the payment of the money by Simmons.
    1. It is on hearsay testimony.

      2. It is on the admission of a book in evidence that is not a- record, nor an admission by the county, nor does it possess any character that can entitle it to be admitted as evidence in the cause. Phil. Ev. Cowen& Hill’s Notes, part 1, 168, n. 175; ib. 180, n. 182; ib. 562.
    IL But, admitting the evidence that was received to have been sufficient to establish the facts sought to be established by it, the whole record shows those facts to be insufficient to sustain the judgment. Because—
    1. Money, voluntarily paid, without fraud, and without mistake, the payment of which was not obtained by coercion, bad' faith, or undue means, nor for the procurement of a thing to which the person paying had a right without the payment of the money, is not such a payment as can be recovered back.
    ] U-. S-. Dig. 262, § 546, citing 1 N. Sc M. 45; 1 Wend. 360; 13: S. Sc R. 258; 4 Mass. 488; 1 Conn. 394; 7 Greenl. 134; 2.Denio, 33, and cases there cited in counsel’s brief, viz:. 2 Phil. Ev. 118; 9 Cowen, 674, 681; 1 Taunt. 144; 2 East, 469; 2 Starkie’s R. 85; 9 Johns. 370; Jacob’s Law Diet., Extortion2,Burr. 1012; 11 Mass. 368, 376.
    III. The defendant is estopped to deny that the money was paid as a donation:. because the proof of the payment and every part of that proof is coupled with proof that it was paid and received as a donation.
    IV. The judgment was for a larger amount than the proof warranted, assuming the proofs to be competent, Vide R. L. 294.

      T. L. Dickey and E. S. Lekmd, for the defendants in error,
    presented the following points and authorities. The exceptions to the competency of evidence in the bill of exceptions are too general, do not appear to have been taken in apt time or manner, and cannot be made available here. Clay v. Boyer, (ante, 506;) Waldo v. Russell, 5 Missouri, 387.
    The payment, sought to be recovered back herein, was made in furtherance of a transaction forbidden by the Statute passed for the protection of ferry keepers against extortion by County Commissioners. Gale’s Stat. 302, §§ 1,2 and

      14. In transactions prohibited by a statute passed to protect one set of men from another — the one being liable from their situation to be oppressed or imposed upon by the other — the parties are held not to be in pari delicto, and the injured party may recover. Browning v. Morris, Cowp. 790; Jacques v. Withy et al., 1 H. Black. 65; Williams v. Headly, 8 East, 378; Ferguson v. Sutphen, 3 Gilm. 547; Headly v. Dunn, 5 B. Monroe, 145; Wheaton v. Hubbard, 20 Johns. I Story’s Eq. Jur. 299, §§ 300, 302.
    This payment was not voluntary, but coerced by undue advantage taken of Simmons’ situation, and in such cases money may be recovered back. 1 U. S. Dig. 292, § 547 ;: Cazenove v. Cutler, 4 Metc. 246; Note in 2 Esp. Rep. 548, in Marriott v. Hampton; - v. Pigot, cited in Cartwright v. Rowley, 2 Esp. R. 723; Shaw v. Woodcock, 14 Eng. C. L. R. 14; Dew v. Parsons, 4 do. R. 640; Clinton v. Strong, 9 Johns. 370; Ripley v. Gibson, 9 Johns. 201; Boston & S. Glass Co. v. City of Boston, 4 Metc. 181; Morgan v. Palmer, 9 Eng. Com. L. R. 729.
    The Court will distinguish between immoral or criminal contracts and such as are merely illegal and void — being against public policy or prohibited by statute. Mount & Wardell v. Wait, 7 Johns. 434, and Ch. J. Kent’s Opinion in Vischer v. Yates, 11 Johns. 28.
    Interest is allowable by American decisions where money is fraudulently or wrongfully obtained — though there is no express agreement to pay..
   The Opinion of the Court was delivered by

Treat, C. J.

This was an action of debt brought by William Simmons against the County of La Salle. The declaration was for money had and received; the plea nildebet. The cause was heard by the Court. It was proved by the plaintiff that, in the year 1837, the County Commissioners of La Salle county gave notice that they would grant a license for a ferry across the Illinois river, at the town of Ottawa, to the person that would donate the largest sum of money to the county; that up to that time, the plaintiff had kept the ferry, and was an applicant for a license to continue the same; that on the day the license was granted, several offers were made for the franchise, when the plaintiff finally bid the sum of five hundred dollars. Several witnesses testified that they had heard the successors in office of the Commissioners who granted the license, declare that the plaintiff had paid the $500 to the county; and another witness testified that he had heard one or more of the Commissioners who granted the license, make a similar declaration. The plaintiff then produced in evidence a book, which the County Clerk swore was a book belonging to his office, in which the accounts of the treasurer were kept; and in which book, the treasurer was charged, under date of July, 1837, with the receipt of $500 from William Simmons as a donation to the county. The defendant objected to the introduction of all of the evidence, and excepted to the decision of the Court admitting it. On this state of case, the Court rendered a judgment for the plaintiff for $500 debt, and $292-50 damages — the amount of interest. The County sued out a writ of error.

The declarations of the Commissioners, respecting the payment of the money, were not competent evidence against .the County. They were not made by them while officially representing the County in this transaction. The declarations of an agent, while engaged in the business of his principal, respecting a particular matter then depending, are a part of the res gestas of the transaction, and binding on the principal; but those made out of the course of the agency, when the agent is not acting for the principal in the particular transaction concerning which they are made, are mere hearsay, and not admissible in evidence against the principal. 1 Greenleaf’s Ev. §§ 113-14; Story on Agency, §§ 134-5.

But the reception of this evidence did not prejudice the defendant, for the payment of the money was proved by other evidence to which there was no just objection. The book belonging to the Clerk’s office was not strictly admissible as a public record, because there was no law requiring such a book to be kept. It was no doubt kept by the direction of the Commissioners for the double purpose of exhibiting the true state of the fiscal concerns of the county, and operating as a check upon the treasurer. It was admissible because it contained memoranda made under the view and direction of the Commissioners respecting the affairs of the County, and of this particular transaction ; and the entry in question furnished prima facie evidence of the receipt of the money, subject, of course, to explanation on the part of the County.

The principal question in the case is, whether the money thus obtained by the County can be recovered back by the plaintiff. If the payment is to be considered as voluntarily made, it is very clear that he cannot recover back the money ; but if it is to be regarded in the light of a compulsory payment, it is equally clear that he is entitled to recover. The laws in force when this transaction took place authorize the County Commissioners to grant licenses for ferries, whenever considered necessary by them, and to impose an annual tax on each ferry not exceeding one hundred dollars. Rev. Stat. 1833, page 302. The law vested them with a sound discretion as to whether a ferry should be established, and as to whom the license should be granted unless the owner of the shores of the stream claimed the license; but it gave them no discretion as to the sum to be paid for the franchise further than to fix the amount of the annual assessment. It was their duty, however, to establish a ferry whenever the convenience of the public demanded it, for the law gave ‘to the owners of ferries the exclusive privilege of ferriage for hire. If they decided that the public interests would be promoted by establishing a ferry, they had then only to determine to whom the license should be issued, and what assessment should annually be made on the ferry. • They had no right to annex conditions or impose restrictions not prescribed by the statute. In this case, they decided to establish the ferry, but chose only to grant the license to the person that would pay the largest amount of money for the franchise in addition to the tax which they might legally impose. In other words, the privilege of ferriage was put up at public auction to the highest bidder. The law confered no such power on the Commissioners. In the granting of licenses, they were bound to keep within the provisions of the statute conferring the power, and regulating its exercise.

What was the condition of the plaintiff, and what effect did this unauthorized arrangement of the Commissioners have upon him? He had been keeping the ferry, and was anxious to secure a continuance of the privilege ; but instead of being permitted to have it by complying with the requisitions of the statute, and submitting to pay the highest tax which could be assessed on the franchise, he was compelled by the force of circumstances, over which he had no control, to advance a large sum of money in order to obtain the license. The illegal conduct of the Commissioners put the plaintiff in their power; and taking advantage of his peculiar situation, they obtained money from him to which the County had not the shadow of right. The money was unlawfully and wrongfully obtained, and cannot in equity and good conscience be retained by the County. The fact that the Commissioners chose to call it a donation does not change the real character of the transaction. It was merely a device to obtain money which the County had not the slightest right to demand. The money was exacted from the plaintiff under circumstances that strip the transaction of all the features of a voluntary payment. It was in law and fact a compulsory payment, as much so as the payment of usurious interest, which the lender exacts from the borrower; or the payment of illegal charges, which an officer demands as the condition of the performonce of official services.

A reference to a few authorities will show clearly that the decision of the Circuit Court was correct. In Irving v. Wilson, 4 D. & East, 485, where a revenue officer seized goods as forfeited, which were not liable to seizure, and took money of the owner to release them, the owner was allowed to recover it back on the ground that the payment was compulsory, the owner being in the power of the officer. In Ripley v. Galston, 9 Johnson 201, where the Collector refused to give a vessel a clearance unless the owner would pay tonnage duty, which was not properly chargeable, and the owner paid the money, the Court sustained an action to recover it back. In Cazenove v. Cutler, 4 Metc. 246, where the mortgagee of land, who was in possession for condition broken, required the mortgagor to pay more than was legally due in order to redeem, and it was paid to avoid a foreclosure, the Court held that the payment was compulsory, and might be recovered back. In Morgan v. Palmer, 2 Barn. & Cress. 729, where the Mayor demanded fees for renewing a license, to which he was not entitled, the Court held that the payment was not voluntary, and that the money could be reclaimed. Payment of taxes to a Collector, who has a warrant for their collection, is to be regarded as a compulsory payment, and if the taxes were assessed without ■authority, they may be recovered back in an action for money had and received. Glass Co. v. Boston, 4 Metc. 181. Money •paid to obtain the possession of property illegally withheld from the owner, may be recovered back on the ground that the payment was compulsory. 7 Barn. & Cress. 73, Shaw v. Woodcock. And money paid to liberate a raft of lumber, ■detained in order to exact illegal tolls, was held to be a compulsory payment. Chase v. Dwinall, 7 Greenl. 134. See also the cases of Astley v. Reynolds, 2 Strange, 915, and Clinton v. Strong, 9 Johns. 370.

It cannot, with any degree of propriety, be said that the parties were in pari delicto, and therefore that the plaintiff is not entitled to recover. There was a great inequality of condition between the parties. The plaintiff was in the power of the Commissioners, and compelled from the necessity of the case to advance the money in order to obtain the license. He was not par’tieeps criminis, because acting under constraint and not from choice. Jacques v. Withey, 1 H. Black. 65; Browning v. Morris, 2 Cowp. 790; Williams v. Headly, 8 East, 378; Jacques v. Golightly, 2 W. Black. 1073; Mount v. Waite, 7 Johns. 434; 1 Story’s Eq. § 300 et seq.; Ferguson v. Sutphen, 3 Gilm. 547.

The question is made whether interest is recoverable. The money was wrongfully obtained from the plaintiff in the first instance, and as a matter of course afterwards illegally withheld from him. In such case, the law is well settled in this country, however it may be in Great Britain, that interest may be recovered. The plaintiff was deprived of the use of his money without his fault, and he ought to receive compensation by the allowance of interest in the way of damages. Where a defendant fraudulently obtained or wrongfully detained the money of the plaintiff, he is chargeable with interest from the time of his so obtaining or detaining the same. Wood v. Robbins, 11 Mass. 504. Interest is recoverable against a man, who receives the property of another, and holds it against his consent. Commonwealth v. Crevor, 3 Binney, 121. Also on money received for property wrongfully converted. Chaney v. Yeates, 1 New Hamp. 151. And against a person intrusted with the collection of money, who converts it to his own use, from the time it ought to have been paid over. People v. Gasherie, 9 Johns. 71. Where money is obtained by fraud or deceit, and the party injured waives the tort and brings his action on the implied promise to restore it, interest may be allowed as damages. Selleck v. French, 1 Conn. 32; Savage, C. J., in Reid v. Renssellær, 3 Cowen, 393.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


author: Trumbull, J.

text:
    The Board of Trustees of the Illinois and Michigan Canal, appellants, v. Daniel Lynch, appellee.

      Jlpptal from Cools County Court

    L. entered into a contract with the Canal Trustees to perform certain work, which contract contained a stipulation that the chief engineer should determine the amount of the several kinds of work contracted to be done, and . decide any question which could or might arise relating to the execution of the contract by L., and that his estimate and decision should be final and conclusive. The contract having been afterwards relinquished by mutual consent, and payment made to L. according to the estimates of the engineer, L. then brought his action to recover additional payment on the ground that there was an error in the estimates, and an understanding between the parties at the time the contract was relinquished and settlement made, that the work should he subsequently re-measured, and payment made for any excess which might be ascertained: Held, that the Court which tried the case should have set aside the verdict found by the jury for L. because he wholly failed to prove such agreement for a re-measurement of the work. Held, further, that it was not competent for L. in this action to show a mistake in the estiontes of ths engineer, without first showing an agreement at the time of settlement to re-measure the work and rectify mistakes.
    In an action for work brought on a contract containing a stipulation like that above mentioned, neither party can impeach the estimate of the person by whose decision they have agreed to be governed, except for fraud, or offer other evidence of the amount of work done; but in case of an unreasonable refusal to cause the work to be estimated by the person agreed upon, the contractor can resort to other evidence.
    Assumpsit, in the Coolt County Court, brought by the appellee against the appellants for work done upon the Illinois and Michigan Canal, heard before the Hon. Hugh T. Dickey, and a jury at the October term 1848. The jury found a verdict for the .appellee for $1014-96. The appellant moved for a new trial, which motion was overruled and a hill of exceptions taken. The evidence, so far as it relates to the questions decided, is stated in the Opinion of the Court.
    JV. H. Purple, for the appellants.

      I. JV. Arnold, for the appellee.

      E. W". Tracy, concluded for the appellants.

      The abstracts of their arguments furnished by counsel, relate chiefly to the sufficiency of the evidence to sustain the verdict. The authorities quoted by them, on the questions of law presented, are referred to in the Opinion of the Court.
   The Opinion of the Court was delivered by

Trumbull, J.

This was an action of assumpsit brought by Lynch, a contractor on the Illinois and Michigan Canal, to recover for work done upon sections twenty one and twenty two ofsaid Canal. The declaration contains the common counts for work and labor, materials furnished, and the money counts. Plea non-assumpsit. Jury trial, and verdict of one thousand and sixteen dollars and seventy six cents for plaintiff below. The defendants entered a motion for anew trial, and excepted to the decision of the Court overruling the same, whereupon judgment was entered for the amount of the verdict. All the evidence in the cause is brought before us by bill of exceptions, and the errors assigned question the correctness of the decisions of the Court in admitting certain evidence, in overruling the motion for a new trial, and in giving and refusing instructions.

The evidence shows, that all the work done by Lynch was performed under a contract containing the following stipulation. “It is mutually agreed, that the said works during their progress, shall be subject to the examination and inspection of the Board of Trustees or their agents, and to prevent all disputes or misunderstandings, it is mutually agreed that the chief engineer shall determine the amount or quantity of the several kinds of work herein contracted to be done, and decide every question which can or may arise relating to the execution of this contract on the part of the said contractor, and his estimate shall be final and conclusive,” and also further stipulations, that payments should be made from time to time during the progress of the work at intervals of not exceeding three months, which payments should not be less than seventy per cent, of the amount certified by the chief engineer to be then due, and that whenever the contract in the opinion of the chief engineer should be completely performed, he should certify the same together with his estimate, and the Board of Trustees should, within sixty days after notice thereof, pay the amount due according to the contract. It will be unnecessary to refer to other provisions of the contract in the decision of this cause.

Prior to the commencement of the suit by Lynch, the contracts for the work had been relinquished by mutual consent, and Lynch had been paid in full for his work including the retained per-centage according to the estimates of the Chief Engineer, but he sought to recover in this action upon the ground, that there were mistakes in the estimates of the work, and that there was a mutual understanding between the parties at the time of the abandonment of the contracts, that the work was subsequently to be re-measured, and payment to be made for any excess of work that should be ascertained upon such re-measurement.

To sustain his action, the plaintiff first called as a witness William Gooding, who was chief engineer upon the Canal during the time plaintiff was engaged upon it, and who testified, in substance, that all the work performed by Lynch was done under certain contracts, which are set out at length in the record, and have been before referred to; that the work was relinquished by Lynch, with the consent of the chief engineer, with the understanding that Lynch was to be paid the retained per-centage, according to the estimates of the work previously made; that Lynch complained at the time that his work had not been correctly estimated, and was informed by witness that it could not then be more accurately measured, for the reason that a great part of it was covered with water, but if Lynch chose to defer the settlement for a short time till the water could be drawn off, witness would have the work re-measured, and Lynch would then be paid for every yard he had done; but that if a settlement was then made and the retained per-centage paid, it must be final; that Lynch concluded to settle upon the estimates made, and the settlement was considered final by the witness; that some time afterwards, upon application of Lynch, witness directed Mr. Lake, an assistant engineer, to remeasure the work to satisfy both himself and Lynch that justice had been done him, and to see what amount of work there was to be done by the Trustees; and that he did not tell Lynch that if, upon such re-measurement, his work should be found under-estimated, he should be paid. Robert Stuart, secretary of the Board of Trustees, was next called as a witness by Lynch, and testified that, as acting treasurer, he paid Lynch upon the estimates of the chief engineer; that Lynch settled at his own request, saying that he would receive the money on the estimates made and risk it; that he, Stuart, paid him the money including the retained percentage, which he would not and could not have done within the scope of his authority, except upon a final settlement.

The only evidence in the least conflicting with that of Gooding and Stuart, is that of Russell E. Heacock, who had formerly been an engineer upon the Canal, and who stated that he was present sometime after the contracts had been ■ abandoned, when Gooding wrote a letter to Lake, the resident engineer upon sections twenty one and twenty two, directing him to re-measure the work; that Gooding stated, “that at the time the work was measured, it was under water, and there might have been a mistake. He thought it was over-estimated. Lynch asked a re-measurement, and said that he had told Mr. Gooding at the time the contracts were relinquished, that he wanted a re-measurement, and that Mr. Gooding agreed it should be;” that the result of the conversation was, that Mr. Gooding would direct Mr. Lake to make a new measurement; that Gooding after-wards wrote to Lake to make a re-measurement, and gave the letter to Lynch ; that Gooding thought the re-measurement would show Lynch over-estimated. Lynch thought otherwise, and for the purpose of ascertaining or settling the matter, as witness understood, the re-measurement was ordered.

The foregoing is substantially all the testimony offered by the plaintiff in the Cook County Court to show that there was an agreement for a re-measurement of the work, at the time the contracts were abandoned. This agreement lies at the foundation of the action5 for unless there was such an agreement, it is admitted on all sides that the parties were concluded by the settlement made and the paying over and receiving the retained per-centage. It would not be competent for the plaintiff to show in this action a mistake by the chief engineer in his estimate of the quantity of work done, without first showing that at the time of the settlement an agreement for a re-measurement or to rectify mistakes in the former estimates was made. Without adverting to the testimony on the part of the defence, and the explanations subsequently given by Gooding as to the reasons for directing Lake to make a. re-measurement of the work, can any man read the evidence offered by the plaintiff himself, without being satisfied at once that he wholly failed to prove that the contracts were abandoned, and the payments made with the understanding that there was to be a re-measurément of the work ?

So far from proving such an understanding the plaintiff’s two witnesses, one of whom made the settlement, and the other paid over the money, both state, not only that there was not such understanding or agreement, but they go further, and show that such could not have been the understanding for the reason that the final certificates are never made out and the retained per-centage paid, except upon a final settlement.

To show that his own witnesses are mistaken as to the understanding when the contracts were abandoned, the plaintiff introduces in evidence his own statements made at a subsequent time, in which he contended to Gooding that he had promised to have the work re-measured. Gooding at that time neither admits nor denies it, but to satisfy both himself and Lynch, and to ascertain how much work remained to be done, directs a re-measurement, being of opinion, as he says, that the work had been over-estimated. Those circumstances as against the positive evidence of Gooding and Stuart, cannot be said to raise even a doubt as to what was the understanding of the parties at the time of settlement.

Suppose the Trustees of the Canal were plaintiffs in this-suit, seeking to recover on the ground that the work of Lynch had been over-estimated and he overpaid, which would be a much stronger case than this, because the declarations of Lynch would then be evidence against him, can there be a question that they would fail upon the testimony of the three witnesses, Gooding, Stuart and Heacock ? If not, the fact that Lynch is plaintiff with a weaker case, should not be permitted so to vary the rules of evidence as-to permit him to recover ; and although we feel reluctant to set aside a verdict where a jury have passed upon the facts, and the Judge presiding at the trial has refused to interfere, yet the verdict in this case is so manifestly and palpably contrary to> evidence, that the rules of law require it to be set aside.

The view we have taken of the case, renders it unnecessary to examine the mass of conflicting evidence contained-in the record relating to the actual amount of work done by Lynch; but as the cause will have to be remanded, and the questions of law growing out of the provisions, of the contract herein before referred to may again arise, it will he proper to put a construction upon these provisions.

The contract between the parties, so far as the record shows, was voluntarily and fairly entered into.. Neither-party is at liberty to disregard it, nor can the Court make-for the parties a contract different from that which the parties have made for themselves. By the terms of the contract under which the work was done, the determination of the chief engineer as to the amount or quantity of work done, is made final and conclusive. In an action for work done under the contract, the estimate of the chief engineer furnishes the only evidence of the amount of work done, and neither party is permitted to show such estimate to be erroneous, or to impeach it, except for fraud. If the Board of Trustees should unreasonably refuse to cause the work to be estimated by their chief engineer, the contractor would then have the right to resort to other evidence to show the amount of work done. Hotham v. East India Co. 1 T. R. 639. But neither party can resort to such other-evidence while the other observes and. insists upon the contract. Such we believe to be the law of this case, as made by the parties themselves, and as established by the cases of Easton v. The Pennsylvania and Ohio Canal Co. 13 Ohio, 79, and Randel v. Ches. and Del. Canal Co. 1 Harr. 233, where decisions are made upon contracts analogous in principle to those now under consideration.

In this case, therefore, before Lynch can be permitted to prove that the chief engineer’s estimate of his work is erroneous, he must first show said estimate to be fraudulent, or that the chief engineer unreasonably refused to make a re-estimate, after an agreement'between the parties that his former estimates should not be final, and that a re-measurement should be made.

The judgment of the Cook County Court is reversed and the cause remanded for further proceedings in accordance ■with this Opinion.

Judgment reversed.


text:
    The People of the State of Illinois, for the use of the Common-School Fund of Lake County, appellant, v. Elijah M. Haines et al., appellees.

      Jlppeal from Lake.

    If a School Commissioner, in loaning school money for a longer period than one year on real estate security, take the security on real estate to which the mortgagor has no title, and the Commissioner, by using due caution, could have ascertained this fact from the public records, or any other accessible source of information, he has violated the law, and is at once liable on his bond.
    In a suit brought on his bond in such cases, the measure of damages is, not merely the interest in arrear on the loan, but the full amount of the loan, with the interest in arrear.
    Debt, in the Lake Circuit Court, brought by the appellant against the appellees, on the official bond of one of the defendants below, as School Commissioner, for loaning the sum of fifty dollars of the school money for five years, without taking security by mortgage on unencumbered real estate, as required by the statute. The issues were tried by the Court, and found for the plaintiff below, and the Court assessed his damages at fourteen dollars, the amount of the interest in arrear on the school money loanee}. The plaintiff appealed. The facts appear in the Opinion of the Court.

      Cook Sc Hoyt, for the appellant.

      I. <7V*. Jlrnold, for the appellees.
   The Opinion of the Court was delivered by

Caton, J.

This suit was brought upon the official bond of the School Commissioner of Lake county; The bond was conditioned that the Commissioner should faithfully perform all the duties of his office, according to the laws then or which might thereafter be in force in relation thereto. One breach assigned is, that the Commissioner, contrary to the statute, loaned fifty dollars of school money in his hands, to one Gavin, for a term of five years, without taking security by mortgage on unencumbered real estate, but on the contrary took a mortgage of Gavin on a lot in which he had no interest, and to which he had no title at any time. Another breach is assigned, that he loaned fifty dollars of school money to Gavin without taking security as is required by Rev. Stat. ch. 98, § 27; by reason whereof, &c. That section authorizes the School Commissioners to loan certain school moneys,' and provides that “for all loans for more than one year, security shall be given by mortgage on real estate, unencumbered, in value double the amount loaned, with a condition that in case additional security shall at any time be required, the same shall be given to the satisfaction of the Commissioner for the time being.” The trial was by the Court, without a jury, who found for the plaintiffs, and assessed their damages to the sum of fourteen dollars, the amount of interest in arrear. The plaintiffs bring the record here, and complain that they were entitled to recover the full amount of the money illegally loaned, together with the unpaid interest.

It is the undoubted duty of the School Commissioner, under the statute referred to, when he loans money for a longer term than one year, to secure the loan by a mortgage on real estate, which, at a fair and reasonable cash value, is of double the amount of the loan, and he must resort to all accessible means of information, to satisfy himself that the title to the land is in the mortgagor, and is unencumbered. If the public records show such a title, and the Commissioner has no notice or reason to believe that there is any adverse or outstanding title or encumbrance, the nhe ought not to be adjudged guilty of a breach of his official duty, if unfortunately some latent claim or right should arise, which reasonable and careful vigilance could not have discovered, and defeat the security taken. The title must be such that a prudent and careful man would not hesitate to invest his own money upon it, at a full price. He must act at least with as much care and circumspection in securing this school money as a prudent and careful man would exercise in securing his own, relying alone upon the title. If the Commissioner neglects to do this, then the loan is not authorized by law, and he is, in legal contemplation, as much guilty of violating his official duty as if he had appropriated the money to his own private purposes. If the Commissioner acts in good faith, and with due caution and circumspection, then he does his duty and incurs no responsibility; but if he loans the money either in bad faith, or without such care and cir cuirisp e ction, then he diverts and misapplies it, and is responsible at once for the full amount thus misapplied. It will not do to say that he and his securities should only be held responsible for the ultimate losses upon such illegal loans. The intention of the law is, and so it is expressly-declared, that all sums loaned for a longer term than one year shall be secured by mortgage upon real estate, of value to double the amount of the loan. The Commissioner has no right to say that he and his securities will become guarantors for this loan while the law requires security on real estate; he has no right to violate the law, and then scythe public shall be content with personal security. If he violates the law in loaning the money, and thus incurs liability, he cannot postpone that liability by the terms of that very illegal loan. If he is liable at all, it is for the illegal loan, and necessarily the liability accrues as soon as the illegal act is done.

What then are the facts of this case, to which this law is> to be applied ? This loan was made to Gavin in palpable violation of his official duty. It was for a longer period than one year, and a mortgage was taken upon a lot to which the mortgagor never had the shadow of a title, which, if the School Commissioner did not know, he might have known with the least attention; and all this, too, when Gavin was notoriously and utterly insolvent. Here is a gross violation of official duty, and the Court should have assessed the plaintiffs’ damages to the full amount of the loan, together with the interest in arrear. As the case must go back for another trial, it may not be improper to remark, that the issues are very loosely presented. The declaration is probably obnoxious to a demurrer, when tested by the law as above laid down, although it may be sufficient after verdict; and the plea is not at all appropriate to such an action as this, while the notice may be utterly disregarded.

The judgment of the Circuit Court is reversed with costs against the appellees, and the cause remanded, with leave to both parties to amend their pleadings.

Judgment reversed.


text:
    Hamilton D. Risley, appellant, v. Elisha C. Fellows, appellee.

      Appeal from Will.
    The authority of an attorney to receive from the sheriff money collected on an execution in favor of his client, is-revoked by the death of his client. The sheriff máy retain such money till demanded by the personal representatives of the deceased, and an order of the Court that the sheriff pay over the money to the deceased party or his attorney, should be enjoined on the application of the sheriff.
    Judicial proceedings, commenced and prosecuted imthe name of a person deceased, are a nullity, and would constitute no bar to another proceeding, in the name of the personal representatives of the deceased, for the same cause.
    Bill in Chancery, for an injunction, filed in the Will Circuit Court by the appellant against the appellee, and heard at the October term, 1848, before the Hon. Jesse B. Thomas. The injunction was dissolved by the Circuit Court on motion, and the bill dismissed. The complainant appealed. The facts appear in the Opinion- of the Court.

      T. L. Dickeyi for the appellant.

      B. C. Cook, for the appellee.
    A Court will dismiss a bill on motion, where it is manifest that there is no equity in the bill.
    If a party neglects to make his defence at law, a Court of , Chancery will not relieve him. Moore v. Bayley, Bre. 61; Beaugenon v. Turcott, ib. 126; Greenup v. Brown, ib. 193; Elston v. Blanchard, 2 Scam. 422; Armstrong v. Caldwell, ib. 420; Buckmaster v. Grundy, 3 Gilm. 626; Abrams v. Camp, 3 Scam. 290.
    A Court of Equity will not undertake to question the correctness of a judgment at law for irregularity. Crafts v. Hall, 3 Scam. 132.
    Nor will Chancery review the determination of Courts of Law in relation to matters properly within their jurisdiction. Sampson v. Hart, 1 Johns. Ch. R. 91, 98; Foster v. Wood, 6 do. 87.
   The Opinion of the Court was delivered by

Treat, C. J.

At the May term, 1843, of the Will Circuit Court, Patrick Doyle recovered a judgment against Steele & Amer, for $113-96. E. C. Fellows. Esq., was the plaintiff’s attorney. An execution was issued on the judgment on the 16th of May, 1843, and placed in the hands of H. D. Risley, then sheriff, who returned it in August, 1846, satisfied in full. He settled the costs of the suit, and paid to Fellows $26-00 on account of the judgment. At the May term, 1848, Fellows, as the attorney of the plaintiff, moved the Circuit Court for a judgment against Risley for the amount collected on the execution and not paid over. Risley filed an answer to the application, in which he admitted the balance to be in his hands, expressed his readiness to pay it to any person authorized to receive it, but alleged as a reason why he had not paid it to Fellows, and why he could not safely pay it, that Doyle departed this life in the year 1844, and that no person had administered on his estate. At the same term, the Court made an order that Risley forthwith pay to the plaintiff, or to Fellows, the sum of $109-64, and interest at the rate of twenty per cent, per annum, from the return of the execution. Risley then filed a bill in Chancery against Fellows and the unknown legal representatives of Doyle, setting forth the foregoing state of facts, and reiterating the allegations in his answer, and praying that the judgment against him might npt be enforced. On this hill, he obtained an injunction. At the succeeding term, the Court, on the appearance of Fellows, sustained a motion to dissolve the injunction and dismiss the bill. From that decision, Risley prosecuted an appeal to this Court.

As the case is here presented, the allegations of the bill must be considered as true. Do they show sufficient cause for the interference of a Court of Equity, to prevent the enforcement of the judgment against the sheriff? The answer must be in the affirmative. The proceeding against the sheriff was carried on, and the judgment obtained, in the name of a dead man. There was, in fact, no plaintiff. The proper parties were not before the Court, so as to vest it with jurisdiction. The proceeding being without vitality, the judgment was a nullity. It would constitute no bar to another proceeding in the name of the personal representative of Doyle. The authority of Fellows to receive payment was revoked by the death of his client; and from that time, the legal right to the money was vested in the personal representative, in whose name alone it could be demanded, and proceedings instituted for its recovery. The sheriff could not safely do otherwise than retain the runds, until demanded by the personal representative. He is not in any default till such demand is made. The demand by Fellows established no official delinquency, for his/’authority to receive the money being at an end, the demand was nugatory. He had no personal interest in the collection of the money, for all claim on the plaintiff for professional services' in the case was fully discharged by the payment made him by the sheriff.

The cases cited by the counsel for the appellee, to show that this defence was available in the proceeding at Law, and therefore cannot be made the basis of a suit in Equity, have no application. There was no vitality in that proceeding ; the decision of it could neither conclude the sheriff, nor the representatives of Doyle.-

The decree of the Circuit Court will be reversed with costs, and the cause remanded for further proceedings, with leave to the defendant to answer.

Decree reversed.