text:
    Henry Curtis, Plaintiff in Error, v. John Doe, ex dem. Daniel Swearingen, Defendant in Error.
    ERROR TO WASHINGTON.
    A sheriff’s deed, which does not state the land was appraised, and unsupported by proof that it was appraised, is insufficient to entitle the lessor, claiming under it, to recover in an action of ejectment.
   Opinion of the Court by

Justice Lockwood.

This was an action of ejectment, brought to recover the undivided moiety of a tract of land in the county of Washington. A number of errors have been assigned, but from the view we have taken of the case, it will be unnecessary to decide more than the following question:—Was the sheriff’s deed to the lessor sufficient to convey Ryan’s interest in the premises? The objection taken to the deed is, that it does not appear from the deed, (and the plaintiff below did not prove by parol,) that the premises were appraised, and sold for two-thirds of the valuation. This question is one of great importance to the interests of the community, and deserves the most serious and attentive consideration of the court. Its decision will form a highly important rule in the transfer of real estate, that may affect the rights of a great number of individuals. The transfer of real property by a judicial sale, is unknown to the common law, but is authorized by the statutes of this state.

The legislature, in subjecting real estate to sale on execution, have clearly the right to prescribe the terms on which such sale may be made, and any material departure from the rules prescribed by the statute, will render the sale void. What, then, are the rules prescribed by our statutes in relation to sales on execution ?

It must be confessed that the court find some" difficulty in reconciling the 2d, 8th, and 22d sections of the act entitled “ An act subjecting real estate to execution for debt, and for other purposes,” passed 22d March, 1819. But whatever uncertainty might grow out of the attempt to reconcile the conflicting provisions of these sections, yet the court have no doubt that the legislature intended, by the 22d section, to require that all real estate should be valued before sale. This section is as follows :

“That all real estate that shall be ordered to be sold under the provisions of this act, shall be valued by three disinterested freeholders of the county in which- the same may be situated, who shall he appointed by the sheriff or other officer, and sworn to take into consideration the true value of such estate in cash, and the said sheriff or other officer shall then proceed to sell the same: provided, that the said land, or freehold, shall bring the amount of its valuation as aforesaid, or at least two-thirds thereof; but in case the said land or freehold shall not bring the amount of its valuation, or two-thirds thereof, then the said sheriff or other officer shall continue the sale until the same shall have been offered on three different days, allowing the space of twenty days between each day of sale, giving due notice thereof as before directed, unless the person in whose favor the execution issued, shall agree to take the same at the valuation made as aforesaid.”

This statute was amended by an act passed the 15th February, 1821, which seems to have escaped the notice of the counsel on both sides. By the third and fourth sections oí the amended act, the legislature assume the fact that real estate can not be sold on execution, unless it will bring two-thirds of its valuation. The third section is intended to authorize lands that have been already valued and not sold for want of bidders, at two-thirds of the valuation, to be sold for one-half of the valuation.

The fourth section of the amended act is:—“ That when any real estate shall hereafter be levied upon, by virtue of any execution hereafter to be issued, and shall have been twice offered for sale under the provisions of the act to which this is an amendment, and has not brought the amount of its valuation, or two-tliirds thereof, upon the third, or any subsequent offering, the sheriff, or other officer, shall proceed to sell it to the highest bidder for what it will bring in ready money, having first given fifteen days’ notice as aforesaid.” My conclusion is, that the sheriff was bound to proceed on the execution mentioned in this case, according to the directions of the 22d section of the original act, as modified by the fourth section of the amending act. From which it will result, that the sheriff’s duty was to have had the premises valued by three disinterested freeholders, on oath, and advertised for twenty days, when, if two-thirds was not bid, he should again have advertised for twenty days, and then if two-thirds was not bid, he could, according to the above recited fourth section, sell the premises for what they would bring in ready money, having first given fifteen days’ notice of the sale. Can the court presume that the sheriff complied with these express provisions of the law ? I think not. Would not every lawyer he startled at the proposition, whether the court would not presume in favor of a sheriff’s deed, that the sheriff had an execution ? And that the execution was based on a judgment ? Tet these presumptions appear as reasonable as the presumption that the sheriff has obeyed the mandates of the statute, without showing the fact. Every agent, whether public or private, must act within the powers delegated to him, and must show that in all essential particulars he has not varied from them. If a party is to be deprived of his property without his consent, the law that authorizes him to be dispossessed must be obeyed, and he has a right to call for proof that he has not been illegally divested of his estate. The argument that good policy requires that public sales shall be supported, whether the provisions of the statute have been substantially complied with or not, does not appear to be entitled to much weight.

Whether the land has been appraised or not, (and it is to this point that we confine our attention,) can be very readily ascertained, by the bidders calling for the valuation. We have hitherto considered this case with reference to our statutes, and upon general principles. We are, however, not without authorities on the very point. In the case of Patrick v. Gideon Oosterout, 1 Ohio reports, 27, two questions were submitted to the court: 1. Was it necessary under a sheriff’s deed to exhibit the appraisement? 2. Was the appraisement sufficient ? The objection to the appraisement was, that it did not appear to have been made on oath. The court, consisting of Judges McLean and Bubnet, held that a sale without an appraisement was void, and rejected the sheriff’s deed, because it did not appear that the appraisement was on oath.

They refused to presume that the oath had been taken. It has also been decided in Connecticut, (1 Day’s Repts. 109,) that in order to make out a title to land, by the levy of an execution, it must be shown that the appraisers were disinterested freeholders, and that they were sioorn according to laio.

In the case of Parker v. Rule’s lessee, 9 Cranch, 64, the supreme court of the United States decided, that, under the land tax act of the 14th July, 1798, c. 92, before the collector could sell the land of an unknown proprietor for non payment of taxes, it was necessary that he should advertise the copy of the lists of lands, &e., and the statement of the amount due for the tax, and the notification to pay, for sixty days, in four Gazettes of the state, if there were so many printed therein. Again, in the case of Stead’s executor v. Course, 4 Cranch, 403, and which arose under the tax laws of Georgia, the supreme court decided that an officer selling land for taxes, must act in conformity with the law from which his power is derived, and the purchaser is bound to inquire whether he has so acted. In the case of Williams v. Peyton, 4 Wheaton, 77, the same court held, that in the case of a naked power, not coupled with an interest, the law requires that every pre-requisite to the exercise of that power should precede it. That the party who sets up a title, must furnish the evidence necessary to support it. If the validity of a deed depends on an act in pais, the party claiming under it is as much bound to prove the performance of the act as he would be bound to prove any matter of record, on which the validity of the deed might depend. And in this last case the court decided that the collector’s deed was not prima facie evidence.

McRoberts, for plaintiff in error.

T. Reynolds, for defendant in error.

The court have examined the cases decided in the Kentucky courts, referred to in plaintiff’s argument, but think they have but little application to this case. One of the cases was a sale of personal property, which for obvious reasons, is governed by different rules from those of real property. Another of the cases referred to, was the sale of land for taxes. The facts of the case are, however, so imperfectly stated, that it is impossible to extract from the case any rule applicable to the decision of this case.

The last case cited, was a case of the sale of land on execution, and the court are perfectly willing to accede that the case was rightly decided under the Kentucky statute.

This court can not, however, accede to the argument of the court, as to what true policy dictates on this subject. We can not regard the question as altogether a question of policy, but as more a question of positive law. In relation to the cases cited from New York, the court are of opinion that they can have no application here, because, in New York, they have a positive statute, making sheriff’s sales valid, however palpable may be his departure from its provisions. The court feel themselves constrained to say, that the sheriff’s deed, unsupported by any proof that the land liad been valued, was insufficient to entitle the lessor to recover. The judgment must be reversed with costs.

Judgment reversed.

       Laws of 1819, p. 183.

       This is now changed by statute.

         The party who sets up a conveyance, must furnish the necessary evidence to support it. If the validity of a deed depends on an act in pais, the party claiming under it is as much bound to prove the performance of the act, as he would be bound to prove any matter of record on which the validity might depend. Williams et al. v. Peyton’s lessee, 4 Wheat., 77.


source: Caselaw Access Project

author: Justice Smith.

license: Public Domain

text:
    Daniel Gregg, Plaintiff in Error, v. James and Philips, Defendants in Error.
    ERROR TO MONROE.
    Debts to be set off, must be mutual, and between the parties to the record.

    A debt due individually by one co-partner, can not be set off in an action to recover a debt due the co-partnership.
    A payment to one partner is payment to both, unless stricly forbidden.

       A separate demand can not be set off against a joint one, nor can a joint debt be set off against a separate one. A demand to be set off must be owing from the plaintiff's to all the defendants. The demands must be mutual and between all the parties to the action. Hinckley v. West, 4 Gilm., 136. Burgwin v. Babcock, 11 Ill., 30. Hilliard v. Walker, id., 645. Ryan v. Barger, 16 Ill., 28. P. & O. R. R. Co. v. Niel, id., 269. Walker v. Chovin, id., 489. “ There may be an exception to this rule arising out of the agreement of the parties.” Walker v. Chovin, supra.

       Payment to one partner is payment to the firm. Major v. Hawkes, 12 Ill., 299. Coll. on Part., sec. 638.
      The giving a note payable to one of the partners individually, or the payment of a debt of an individual partner by a debtor of a firm, is not such a payment as is binding on the other partner, but is good as to the one to whom it is made. Granger v. McGilvra, 24 Ill., 152.
      After a dissolution of a partnership, either partner may receive a debt duo the firm, notwithstanding an agreement between the partners, of which the debtor has notice, that one of their number or a third person, shall alone collect and pay the debts. Gordon v. Freeman, 11 Ill., 14.

   Opinion of the Court by

Justice Smith.

This was an action of debt, on a sealed note, payable to James and Philips. Gregg, who was defendant in the court below, pleaded three pleas:

1. Payment generally.

2. That Philips and himself were mutually indebted to each other before the execution of the note ; that prior to the making of the note, they attempted a settlement of their respective claims, but Gregg, being unable then to establish his against Philips, executed the note in question to James and Philips, who had become partners in trade, it being given for the amount of Philips’s claim against him, leaving his, against Philips, unadjusted.

3. That the note was given to James and Philips to secure a debt due to Philips only, and that before the commencement of the suit, he paid it to Philips.

To the first and third pleas, the plaintiff took issue, and demurred to the second; to which demurrer the defendant filed his joinder. The court below sustained the demurrer. On the trial, Gregg offered to give in evidence, an account of his against Philips, which existed anterior to the making of the note given to James and Philips, which the court refused to permit.

To this decision an exception was taken. Two points are presented for the consideration of the court: First, that on the issues joined, it was competent for Gregg to give in evidence any debt due to him from Philips: Second, that the second plea was a bar to the action, and the demurrer should have been overruled.

We have no hesitation in saying that on both the points, the court below decided correctly. Nothing is better settled than that debts to be set off, must be mutual and between the parties to the record. If the issue on the third plea had been what the counsel for Gregg supposes it is, it might, perhaps, vary the question. But it will be seen that his allegation, that the consideration of the note was for a debt originally due to Philips only, is not noticed in the replication, and issue is-taken on the single point of payment only. That part of his plea is treated as a nullity, and must be considered as surplus-age. The only inquiry is, was the debt alleged to be due by Philips, a debt which could be set off.

The note is payable to co-partners, and the debt offered to be given in evidence, is due, if at all, by only one of the co-partners. The rule is, that a debt due individually by one co-partner can not be set off in an action to recover a debt due the co-partnership. It is not a mutual debt, nor is it between the parties to the record. The offer, therefore, to prove a debt due by one of the co-partners, and that confessedly created before the making of the note, was foreign to the issue before the court. It was in no way pertinent thereto: it was not what the parties had made the issue, viz.: had Gregg paid the note to Philips, for a payment to one was a payment to both, unless strictly forbidden. This reasoning is directly applicable to the second plea. It was not competent for Gregg to plead a state of facts, which in themselves amounted to no more than a right of setting off a debt due by Philips alone.

This plea was certainly not good, for he could not plead that, which in law, could be no defense. The court have examined the authorities quoted by the plaintiff’s counsel to support the positions assumed by him, but they are found to be in no way analogous. The demurrer was properly sustained. The judgment of the court below must be affirmed, and the defendants in error recover their costs,

Judgment affirmed.

         Dealings between the parties to the record only, can be set off. 1 Johns. Cas., 169.


text:
    Nomaque, an Indian, Plaintiff in Error, v. The People, Defendants in Error.
    ERROR TO PEORIA.
    It is necessary, in order to give the court the right to try a prisoner, “that the bill of indictment found by the grand jury, should be indorsed “ a true bill,” and signed by the foreman; an indictment without such indorsement is a nullity.  It is an act of great indiscretion in a court to permit the jurors to go at large after they are sworn, as well before the trial, as after.
    On the production of affidavits going to prove that one of the jurors had made up his mind against the prisoner, though he swore that he had not formed an opinion, if the fact is discovered after the trial, a new trial ought to be granted.
    A prisoner in a capital case is considered as standing on all his rights, and waiving nothing'on the score of irregularity; an agreement therefore between his counsel and the counsel for the people that the jury, if they agree, may deliver their verdict to the clerk, is irregular, and a verdict delivered in court under such an agreement, in the absence of the jury, ought to be set aside for such irregularity.
    A prisoner has a right to the presence of the jury when they deliver the verdict, as he is entitled to have them polled, and a verdict is not final, until pronounced and recorded in open court.

       Although this decision has been generally followed on the circuits of this state, and seems in one case to be approved by the supreme court, yeti am unable to see any good reason for it, and believe the current of modern authorities in other states is against it. The statute of this state on this subject is as follows :— “After the grand jury is impanneled, it shall be the duty of the court to appoint a foreman, who shall have power to swear or affirm witnesses to testify before them; and whoso duty it shall be, when the grand jury, or any twelve of them, find a bill of indictment to be supported by good and sufficient evidence, to indorse thereon ‘ a true bill;’ and when they do not find a bill to be supported by sufficient evidence, to indorse thereon ‘ not a true bill;’ and shall, in either case, sign his name as foreman, at the foot of said indorsement.” Purple’s statutes, p. 654, See. 3. Scate’s Comp., 681. The English law is nearly the same. 4 Black. Com., 305-6. The origin of this requirement is found in the practice in England of first preparing all bills that are submitted to the grand jury, they acting on no other offenses than those for which bills are so prepared; and such as they find to be true bills, they so indorse; but such as were not so found, were indorsed “ ignoramus,” or “ not found.” And while such practice existed, there was an evident propriety in so indorsing them. With us, although the letter of the statute would seem to require that bills of indictment should first be prepared and submitted to the grand jury before they act on the offense charged, the practice has always been not to draw the bill until the jury hear the evidence and agree to ijnd an indictment; the prosecuting attorney is then instructed to prepare it, and it is by them then returned into court in open court. The only object sought to be attained by indorsing an indictment “ a true bill,” was to distinguish it from such as were “ not found” by the jury; and if the reason for this practice has ceased, why continue it 7 It is a maxim that when the reason of alaw ceases, the law itself also ceases. Broom’s legalmaxims, 118. Until a bill is returned into court in open court, by the grand jury, and is received bythe court as such, it is not an indictment, although every juror may have voted for it, and it is indorsed by the foreman “a true bill;” and unless the records of the court show that it was so received by the court in open court, it will be void. Gardner et al. v. The People, 3 Scam., 84. McKinney v. Same, 2 Gilm., 540. Rainey et al v. Same, 3 Gilm., 71. Gardner v. The People, 20 Ill., 430. Our legislature have endeavored to do away with technical objections. “Every indictment or accusation of the grand jury, shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this code, or so plainly that the nature of the offense may be easily understood by the jury.” Purple’s statutes, p. 398, Sec. 208. Scates' Comp., 403. And again: “ All exceptions which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sustained, for any matter not affecting the real merits of the offense charged in such indictment.” Purple’s statutes, p. 398, Sec. 209. Scates’ Com. p. 403, Sec. 163. But we are not without authorities on this question. In the case of Gardner et al. v. The People, 3 Scam., 84, the record of the indictment contained an indorsement “a true bill,” but it did not appear to have been signed by the foreman. The opinion of the court was delivered by Judge Douglas, who said: “All that is necessary to appear on the record is, that the grand jury returned the indictment, in open court “a true bill.” The indictment, in this case, having been received by the circuit court, and entered of record as a true bill, and neitherthe prisoner nor his counsel making any objection at that or any other time during the progress of the trial, we feel constrained, in the absence of all evidence to the contrary, to give full faith and credit to tire record.” In the case of The State v. Freeman, 13 N. H. Rep., 488, after a full investigation of all the authorities, the court held such indorsement was not indispensable. In the case of The State v. Davidson, 12 Vermont Rep., 300, an indorsement “True bill” was held to be a compliance with the statute which required it to be indorsed “A true bill.” In a late case, Commonwealth v. Smyth, 11 Cushing’s Rep., 473, the court, in a very able opinion, came to the same conclusion. They said: “ These words obviously constitute no part of the description of the offense charged in the indictment. They are not indispensable to the due and legal authentication of the action of the grand jury. Their absence can subject the accused to no inconvenience 'or disadvantage. The reason upon which they are elsewhere held to be essential, does not exist in our practice; and therefore this omission in an indictment is simply the omission of a form, which, if oftentimes found convenient and useful, is in reality immaterial and unimportant.”
      If I am right in the assumption that the reason for this rule has long since ceased to exist—if a change in the practice has superseded the necessity or propriety of the requirement in question, unless the provision of the statute is imperative, I can see no propriety in adhering to it. If an indictment has been fairly and legally found, if the offense is charged in the manner required by the laws, if the court has received it from the grand jury as a true bill, and so entered it on its records, the omission of a useless form, the reason for which has, long since, become obsolete, ought not to intervene to prevent a fair and impartial trial on the merits.
      An indictment was indorsed “A true bill, George S. Rice, Foreman,” while the records showed that another person was appointed foreman of the grand jury. In the absence of anything on the record to negative the supposition, this court will intend that the first foreman was discharged, and another appointed in his place. Mohler v. The People, 24 Ill., 26.

   Opinion of the Court by

Justice Smith.

It appears from the record that the plaintiff in error was tried at a circuit court at the November term, 1825, in the county of Peoria, on a charge of having murdered a man by the name of Pierre Londri. Prom an inspection of the record, it also appears that the indictment, as set forth, was never found by the grand jury of that county ; no finding of any kind is made on the bill. It farther appears, that on the 15th of October, 1825, being the day of the commencement of the trial, nine of the petit jurors were impanneled and sworn, and permitted to go at large until the next day, when the panel was completed. After the trial had closed, an agreement in the following words was entered into, between the public prosecutor and the prisoner’s counsel, viz.: “ It is agreed by the attorney-general and the counsel for the defendant, that if in case the jury should agree on their verdict between this and to-morrow morning, that they may deliver their verdict to the clerk.” In pursuance of this agreement the clerk, on the morning of the 18th of October, 1825, as the record recites, presented to the court the following verdict, which had been handed him by the jury, viz.:

State of Illinois, Peoria county circuit court, November term, 1825. We, the traverse jury, in and for the county aforesaid, do find Nomaque, an Indian of the Pottawattomie tribe, guilty of the murder of Pierre Londri, November 17, 1825.

A motion was thereupon made for a new trial, on the ground of partiality in Dumont, one of the jurors, who, as is established by the oath of two persons, declared before he was sworn on the jury, that Nomaque was a damned rascal, and all those who took his part, and he would give five dollars to H. M. Gurry, to appear and assist to convict Nomaque of the crime charged, and pay it in surveying, or -hunting land.

The court below refused to grant a new trial, and an exception was taken to that decision. There are other objections which were made on the trial of the cause, but as they are not deemed important, we pass them by. No exception is taken in this court to the manner in which the proceedings come before the court, nor do we mean to say that any valid one could have been stated or urged.

Prom the preceding statement, which embraces, substantially, all the facts of importance in the case, the points which present themselves for consideration are, first, whether the prisoner could have been legally tried at all in the court below, it not appearing that there had been a finding of the grand jury, on the paper purporting to be an indictment; and whether he can now avail himself of the objection in this court, the question appearing not to have been made in the court below: Secondly, whether permitting the nine jurors impanneled and sworn, on the first day of the trial, to separate and go at large before the trial, would have formed sufficient cause for the circuit court to have arrested the judgment, or granted a new trial: Thirdly, whether the evidence offered to show that Dumont had, previously to the trial, expressed his belief of the guilt of the prisoner, or of his hatred to him, and was therefore not an impartial juror, was sufficient to establish either point, and authorize a new trial: Fourthly, whether the consent that the jury might deliver their verdict to the clerk, could have - been legally made by the prisoner’s counsel; and whether that agreement dispensed with the personal appearance of the jury, and the rendering of their verdict in open court.

On the first point, we are of opinion, that it was necessary, in order to give the court the right to try the prisoner, that the grand jury should have indorsed their finding on the bill of indictment, verified by the signature of their foreman. This was indispensable, and as it appears not to have been done, the proceedings were coram nonjudice. This objection going to the power of the court to try the prisoner on that indictment; may, although not noticed or urged below, be now urged as cause of error,

On the second point, we give no positive opinion, but it certainly was an act of great indiscretion in the court, to permit the jurors to go at large after they were sworn; because the reason of the rule, in keeping jurors together and apart from every other person, is as applicable, after they are chosen and sworn, and before the trial, as after they are charged with the’prisoner. The object certainly is, to keep them from receiving any other impressions in regard to the prisoner, than those which shall be made by the testimony given on the trial; if suffered to go at large at any time after they are elected to try the prisoner, the object might be wholly defeated.

As to the third point, it is very apparent that the prisoner has been tried by one who, so far from standing perfectly indifferent between the parties, as the law emphatically requires, was in a condition the very opposite. The state of his mind must have led him to look on the testimony against the prisoner with every view to a conviction, and his feelings, it would seem, could alone have been pacified with the surrender to him, by his fellow jurors,.of his victim. We are therefore constrained to say, that the circuit court ought to have awarded a new trial on the production of the affidavits, as they show sufficient grounds discovered after the trial. ,

The fourth point is, we think, easily settled. The prisoner, in a capital case, must be considered as standing on all his rights. He can not be considered as waiving any thing, nor could his counsel do it for him. They possessed neither the power nor right, and if ever there was a case in which an observance of the rule should be required, the present is one. The case of The People v. McKay, 18 Johns. Rep., 212, is conclusive on this point. The supreme court of New York, in that case say, that a paper purporting to be a venire, but without the seal of the court, is a nullity, and they declared that the prisoner in that case, who had been convicted of murder, and although he had challenged some of the jurors, who had been summoned under the supposed venire, did not thereby waive his right to object to the want of a venire. It is further said in that case, “ that it is a humane principle, applicable to criminal cases, and especially when life is in question, to consider the prisoner as standing on all his rights, and waiving nothing on the score of irregularity ”; and in that very case, the judge who delivered the opinion of the court relates a case analogous to the present. In Ontario county, New York, in 1814, a woman of color was indicted, tried, and found guilty of murder. The "jury had separated after agreeing on a verdict, and before they came into court, and on that ground a new trial was granted, and she was tried again. On the present occasion, this precise point is not necessary to be decided. The agreement extends no farther than to depositing the verdict with the clerk. It did not dispense with the personal appearance of all the jurors in court, and a rendition of the verdict by them. It can only be considered as authorizing the jury to separate when they agreed on their verdict until the next day, for their personal convenience. The prisoner had a right to have the jurors polled: this right could not have been exercised where the presence of the jurors was dispensed with. For a confirmar tion of the soundness of this doctrine, see the case of Blackley v. Sheldon, 7 Johns. Rep., 32, and 6 Johns. Rep., 68. Root v. Sherwood, where it is said, a verdict is not valid and final, until pronounced and recorded in open court; and before it is recorded, the jury may vary from their first offering of their verdict, and the verdict which is recorded, shall stand; and if the parties agree that a jury may deliver a sealed verdict, it does not take away the right of either to a public verdict.” If this be law, in a civil case, is it not important, under our system of jurisprudence, that it should be adhered to in a criminal case affecting life ? In the present case, the verdict was not even sealed; it was liable to alteration, and besides, the court had no legal evidence that it was the verdict of the jury.

Starr and Blackwell, for plaintiff in error.

James Twrney, attorney general, for defendants in error.

While on this part of the case the court feel it their indispensable duty to reprobate the tolerance of a practice which might lead to the most dangerous consequences, in a case affecting the life of an individual, and to express their disapprobation of it, in the present instance.

The judgment of the circuit court of Peoria must be reversed, and a supersedeas awarded; and as a flagrant crime has no doubt been committed, and possibly by the prisoner, and in order that public justice may not be evaded, the court make this additional order, that the prisoner remain in custody for thirty days from this day (21st December instant) in order to enable the local authorities to take measures to bring him again to trial.

Judgment reversed.

         In strict legal parlance an indictment is not so called, until it has been found “ a true bill ” by the grand jury; before that, it is named a bill, merely. Arch. Crim. Pl., 33.

         If a jury separate, after a case is committed to them, and before they have agreed upon their verdict, and afterwards return a verdict, a now trial will be granted. Lester v. Stanley, 3 Day, 287. Howard v. Cobb, ibid., 309. 4 Johns., 293.

       When one of the jurors, in a trial for treason, had previously made declarations, as well in relation to the prisoner personally, as to the general question of the insurrection, manifesting a bias or predetermination, a new trial will be awarded. United States v. Fries, 3 Dall., 515.

       As to the misconduct of jurors, or disqualifications, see Sawyer v. Stevenson, ante., p. 24. Sellers v. The People, 3 Scam., 413. Vennum v. Harwood, 1 Gilm., 659. Guykowski v. The People, 1 Scam., 480. Greenup v. Stoker, 3 Gilm., 222.
      If the parties choose to have their cause tried by a prejudiced juror, it is not for the court to refuse them that right. Van Blaricum v. The People, 16 Ill., 364.
      If an officer having charge of a jury permits any member of it to drink spirituous liquors after he is sworn, (but before the case is submitted,) he may be punished for it, but the verdict will not be vitiated. Davis v. The People, 19 Ill., 74.

       In the case of The People v. Scates, 3 Scam., 351, in speaking of the case of Nomaque v. The People, the court said: “ This case means nothing more than this—that a prisoner, in a capital case, is not to be presumed to waive any of his rights; but that he may, by his express consent, admit them all away, can he neither doubted nor denied. He may certainly plead guilty, and thus deprive himself of one of the most valuable rights secured to the citizen—that of a trial by jury.”

       At common law, in all capital cases, the verdict must bo received in open court, and in the presence of the prisoner. In misdemeanors, it may be received in his absence. Holliday v. The People, 4 Gilm., 114.
      The prisoner should bo personally present when the sentence is pronounced, ip. cases where corporeal punishment is a part of the sentence. Perry v. The People, 14 Ill., 500.


author: Justice Lockwood.

text:
    James M. Duncan, Appellant, v. Robert Morrison and Matthew Duncan, Appellees.
    APPEAL FROM FAYETTE.
    An injunction ought not to be allowed for more of the judgment than the complainant shows to he unjust.

    A party to a negotiable note, where there is no fraud, can not impeach it, either at law or in equity.

    If cither the maker or assignee of a note is to suffer a loss, natural equity points to the maker as the party on whom the loss should fall.
    Where an injunction upon a judgment at law is dissolved, it is erroneous to enter a decree for the amount of the judgment at law.

       Such is now the provision of our statute. “No injunction shall ho granted to stay any judgment at law, for a greater sum than the complainant shall show himself equitably not bound to pay, and so much as shall be sufficient to cover costs.” Purple’s Statutes, p. 769, sec. 21. Scates’ Comp., 147.

       This is the provision of the present statute of this state. Purple’s Statutes, p. 773, secs. 9, 10, 11. Scates' Comp., p. 292; and has been sustained by numerous decisions. Woods v. Hines, 1 Scam., 103. Mulford v. Shepherd, id., 583. Adams v. Wooldridge, 3 Scam., 256, Mobley v. Ryan, 14 Ill., 51. Harlow v. Boswell, 15 Ill., 56.

   Opinion of the Court by

Justice Lockwood.

The bill filed by the complainant, states that he executed his note to M. Duncan, and that by inadvertence or mistake, it was omitted to be inserted in the note, that it was to be paid in “state paper,” although it was agreed by the parties that it was to be discharged in that currency. The bill also states, that before the note became due, it was assigned to Morrison, who has brought suit, obtained judgment, and intends to exact specie. There is no allegation of fraud on the part of M. Duncan, or notice to Morrison that it was to have been paid in state paper. On this bill, an injunction was granted, and subsequently dissolved in the circuit court of Fayette county, and a decree rendered against complainant and his security in the injunction bond, for the whole amount of the debt, together with six per cent, damages and costs, and the bill dismissed. To reverse this judgment, an appeal has been brought to this court.

The injunction granted in this case was clearly wrong. It ought only to have been allowed for such portion of the judgment, as the complainant showed by his bill to have been unjust. (Laws of 1819, page 173.) The bill is also defective, in not showing the value of the state paper, and the extent of the discount lie claimed. But the main question is, whether such a case is presented by the bill, as to call for the equitable interference of a court of chancery ? Morrison, in this case, is to be viewed as the innocent indorsee for a valuable consideration. Can such a negotiable instrument, where there is no fraud, be impeached, either at law or in equity ? This question must depend upon the nature of such instruments, and our statutes making them negotiable. A party, when he subscribes his name to such instruments, knows that by the law he authorizes the payee to sell it to whomsoever will buy, and the purchaser has a right to believe, from the act of the maker, that there exists no latent equity, to prevent a recovery of the full amount. If either drawer or indorser is to suffer under such circumstances, which of these parties does natural equity point out as the proper party ? We have no hesitation in saying, that if a loss is to be sustained in this case, that equity would decide that it ought to fall on the maker of the negotiable instrument. But in this case, the court is not left to speculation to settle the merits of the cause. The statute making notes, &c., negotiable, declares that the sum of money mentioned therein shall be due and payable to the person to whom the said note, &c., is made, and that the indorsement shall absolutely transfer and vest the property thereof in the assignee. The second and third sections of the act point out the cases where the maker can defend, as against the indorsee. The complainant has not brought himself within either of these provisions. It is hardly to be presumed, if the legislature, while they were legislating on this subject, had believed that a latent equity, as between maker and indorsee, ought to be a defense between them, but that they would have so declared. Nor does this case come within the provisions of the act to regulate the practice in certain cases ; because here was not either a total want of consideration, or a total or partial failure of consideration. Whether on a total want of consideration, or a failure of consideration of a negotiable note, such facts can be set up as a defense, the court are not called on to give an opinion, nor do they intend to do so.

The court are, therefore, of opinion, that the injunction was rightly dissolved, and the bill properly dismissed, and affirm the decree so far, and for costs of the suit.

With regard to the construction of the 17th section of the act regulating the practice of courts of chancery, the court has met with considerable difficulty ; but as the counsel for Morrison appeared willing, on the argument, that the decree for the amount of the former recovery, together with the six per cent, damages, should be reversed, it is deemed unnecessary, at this time, to settle the true construction of the statute, except that the court are clearly of opinion that the decree for the amount of the judgment at law, is erroneous. The court further order, that the decree be reversed, as to the former judgment, and the six per cent, damages, and that each party pay one-half of the costs of this appeal,

Blackwell, for appellant.

Baker, for appellee.

      Laws of 1819, p. 1.

        Ibid., p. 59.

        Ibid., p. 273,

         A party to a negotiable note or instrument, which he has made or indorsed, is not competent to impeach its validity, although uninterested in the event of the suit. Winton v. Saidler, 3 Johns. Cas., 185. Coleman v. Wise, 2 Johns. Rep., 165. Walton v. Shelly, 1 T. R., 296.
      This rule extends only to negotiable instruments, and can apply only where the paper has been negotiated. Blagg v. Phœnix Ins. Co., 3 Wash. Cir. Court Rep., 5.
      That it is error to render a decree for the amount of judgment at law, see Hubbard v. Hobson, post.


author: Chief Justice Wilson.

text:
    Edward Coles, Plaintiff in Error, v. The County of Madison, Defendant in Error.
    ERROR TO MADISON.
    The legislature have the power, by an act of their own, to release a penalty accruing to a county, after verdict but before judgment. Such an act is not unconstitutional, it being neither an ex post facto law, or law impairing the obligation of contracts, and it can be pleaded, puis darrien continuance.

    Counties are public corporations, and can be changed, modified, enlarged, restrained, or repealed, to suit the ever varying exigencies of the state—they are completely under legislative control.
   Opinion of the Court by

Chief Justice Wilson.

This is an action of debt brought by the county commissioners of Madison county, for the use of the county, against Edward Coles, for $2,000, as a penalty for bringing into the county, and setting at liberty, ten negro slaves, without giving a bond, as required by an act of the legislature of 1819. To this action, Coles plead the statute of limitations, which plea was demurred to, and the demurrer sustained by the court, and the parties went to trial upon the issue of nil debet. A verdict was found against Coles, at the September term, 1821, of the Madison circuit court, but no judgment was rendered upon it, till September, 1825, the cause having been continued till that time, under advisement, upon, a motion for a new trial. In January, 1825, the legislature passed an act releasing all penalties incurred under the act of 1819, (including those sued for,) upon which Coles was prosecuted.

This act Coles plead puis darrien continuance, and renewed the motion for a new trial, but the court overruled the motion, and rejected the plea, and rendered judgment for the plaintiffs.

There are several causes assigned for error, but the one principally relied upon is, that the court rejected the defendant’s plea, (as a bar to the further prosecution of the suit,) alleging a compliance on his part with the act of January, 1825.

The only question for the decision of the court, from this statement of the case, is, Was the legislature competent to release the plaintiff in error from the penalty imposed for a violation of the act of 1819, after suit brought, but before judgment rendered? or in other words, could they, by a repeal of the act imposing the penalty, bar a recovery of it ? If the legislature can not pass an act of this description, it must be because it would be in violation of that provision of the constitution of the United States, (and which has in substance been adopted into ours,) which denies to the state legislatures the right to pass an ex post facto law, or law impairing the obligation of contracts. This is the only provision in that instrument, that has any bearing upon the present question.

Is the law of 1825, then, an ex post facto law, or does it impair the obligation of a contract ? The term ex post facto is technical, and must be construed according to its legal import, as understood and used by the most approved writers upon law and government. Judge Blaclcstone says, “ an ex post facto law is where, after an action (indifferent in itself) is committed, the legislature then, for the first time, declare it to have been a crime, and inflict a punishment upon the person who committed it.” This definition is familiar to every lawyer, and I am not aware of any case in either the English or American courts, hi which its correctness is denied.

It appears from the Federalist, a work which has been emphatically styled the text-book of the constitution, that the term was understood and used in this sense by the framers of that instrument. The authors of this work were among the ablest statesmen and civilians of the age,—two of them were members of the convention that framed the constitution, and would not have been mistaken in the meaning of the terms used in it. Judge Tucker, in his notes on the Commentaries of Blackstone,"also adopts it as the true one, and it is evident from the tenor of his comments upon the principles contained in that work, that if there had been any doubt of the correctness of this one, that it would not have been passed in silence, much less would it have received his approbation.

But that the term ex post facto is applicable only to laws relating to crimes, pains and penalties, does not rest upon the bare acquiescence of the courts, or the authority of elementary writers. It has received a judicial exposition by the highest tribunal in the nation. The decision of the Supreme Court of the United States, in the case of Calder and wife v. Bull and wife, 3 Dallas, 386, must be considered as having put this question to rest. The point decided in that case was, as to the validity of an act of the legislature of Connecticut, which had a retrospective operation, but which did not relate to crimes. All the state courts, through which that case passed, decided in favor of the validity of the law. It was then taken up to the supreme court of the United States, where the judgment was affirmed. The court was clearly of opinion, that the prohibition in the United States constitution was confined to laws relating to crimes, pains and penalties. Judge Chase, in delivering his opinion, says, “ every ex post facto law must, necessarily, be retrospective, but every retrospective law is not an' ex post facto law; the former, only, are prohibited by the constitution.” Patterson, Justice, said, “he had an ardent desire to have extended the provision in the constitution to retrospective laws in general,” and concludes his remarks by saying, “but on full consideration, I am convinced that ex post facto laws must be limited in the manner already expressed.” Sergeant’s Constitutional Law, 347. No higher evidence, I believe, can be adduced, of the existence of any principle of law, than is afforded by these authorities, that the law under consideration is not an ex post facto one. It is considered that it is retrospective, and that as a general principle of legislation it is unwise to enact such laws; yet it is not the province of a court to declare them void. No prohibition to the exercise of such a power by the legislature is contained in the constitution of the United States or of this state, and it is an incontrovertible principle, that all powers which are not denied them by one or other of those instruments, are granted. The next inquiry is, does this law violate the obligation of a contract?

This question is easily answered. A contract is an agreement between two or more, to do, or not to do, a particular act—nothing like this appears in the present case.'* If a judgment had been obtained, the law might, by implication, raise a contract between the parties; but until judgment, the defendant is regarded as a tortfeasor; he is prosecuted upon a penal statute for a tort; the action would die with him, which would not happen in the case of a contract. It is idle, therefore, to talk of a contract between the plaintiff and defendant, and it is only between the contracting parties that the legislature is prohibited from interfering. But in this case there is no contract between any parties, and all reasoning founded upon the idea of a contract, is nugatory. But it is said, the legislature could not pass this law, because the plaintiffs have acquired a vested interest in the penalty, by commencing suit, which can not be taken away.

The authorities relied upon to support this position, are not apposite. The decisions in those cases, turned on the construction of the laws, and not on the authority of the legislature to pass them. In the case of Coleman v. Shower, (2 Show.,) which was an action brought after the passage of the statute of frauds and perjuries, upon a marriage promise made by parol, the judges said, they believed the intention of the makers of that statute was only to provide for the future, and not to annul parol promises which were good and valid in law, at the time they were made. In the case of Couch qui tam v. Jeffries, (4 Burrow, 2460,) lord Mansfield placed his opinion on the intention of the legislature, which, he believed, was not to do injustice to the plaintiff, by subjecting him to costs. So, too, in Dash v. Van Kleeck, 7 Johns., 577, the same ground was assumed. The court did not intend to decide that the legislature could not pass a retrospective law, but that the one under consideration was not necessarily retrospective, and therefore ought not to receive that construction. In this opinion, the court was divided three to two. But had the plaintiffs a vested interest in the penalty before judgment? a vested right is one perfect in itself, and which does not depend upon a contingency, or the commencement of suit. Suit is the means of enforcing, or acquiring possession of a previously vested interest, but the commencement of suit does not of itself, even in a qui tam, or popular action, vest a right in the penalty sued for. The only consequence that results from the commencement of a popular action is, that it prevents another person from suing, and the executive from releasing the penalty. Blackstone, (vol. 2, p. 442,) in speaking of the means of vesting a right in chattel interests, says, “ and here we must be careful to distinguish between property, the right of which is before vested in the party, and of which only possession is recovered by suit or action, and property, to which a man before had no determinate title, or certain claim, but he gains as well the right, as the possession, by the process and judgment of the law. Of the former sort, are debts and choses in action.” In these cases the right is vested in the creditor by virtue of the contract, and the law only gives him a remedy to enforce it. “But,” continues he, “there is also a species of property to which -a man has not any claim or title whatsoever, till after suit commenced and judgment obtained in a court of law, where before judgment had, no one can say he has any absolute property, either in possession or in action; of this sort are, first, such penalties as are given by particular statutes, to be recovered in an action popular.” Here is an authority directly in point. In the present case no judgment had been rendered previous to the passage of the law releasing the penalty, consequently, no right to the penalty had vested in the plaintiffs, which this law directs. The right which the plaintiffs had acqxxired by the commencement of the suit was, according to Blackstone, “ an inchoate, imperfect degree of property,” which required the judgment of the court to consummate, and render it a vested right. Before judgment in a popular action, the property in the penalty is imperfect and contingent, liable to be destroyed by a repeal of the statute upon which suit is brought. This principle is settled in a variety of cases; in that of Seaton v. The United States, 5 Cranch, p. 283, Judge Marshall, in delivering the opinion of the court says, “ That it has been long settled upon general priixciples, that after the expiration or repeal of a law, no penalty can be imposed or punishment inflicted, for violations of the law committed while it was in force.” The same point was decided in the case of the Schooner Rachael v. The United States, 6 Cranch, 329; and in the case of the United States v. Ship Helen, 6 Cranch, 203, the doctrine is fully settled that, even after judgment of condemnation in rem for a breach of the embargo laws, provided the party appeals, or obtains a writ of error, he may avail5 himself of a statute repealing the penalty enacted subsequent" to such condemnation. In The People v. Coleman, the court unanimously awarded a new trial, in ordér that the defendant might avail himself of a defense given by a statute passed subsequent to the commission of the offense; and in the case of the Commonwealth v. Duane, 1 Binney, 601, the defendant had been indicted at common law for a libel: after a verdict, and before judgment, the legislature passed a law that, “after the passage of this act no person shall be prosecuted criminally for a libel.” The supreme court refused to give judgment on the verdict. The terms of this act were not retrospective, yet the court considered it so, and must necessarily have acknowledged the power of the legislature to pass such laws. (See also, Sergeant’s constitutional law, 348; 1 Cranch, 109, and 3 Dall., 279.) These cases require no comment. They are directly on the point under consideration, and have settled the doctrine, that a repeal of a law imposing a penalty, after verdict for the penalty, is a bar to a judgment on the verdict. The court has no longer any jurisdiction of the case. There is no law in force upon which they can pronounce judgment. If then, the legislature can, by a total repeal of the law of 1819, defeat a recovery for an infraction of it before judgment, can they not by the act of 1825, release all penalties incurred anterior to its passage? There is no rule of law which denies them the power of doing that indirectly, which they may do directly. In effect and in principle, there is no difference, and the power to do the greater act, includes the less.

It is said that the king can not remit an informer’s interest in a popular action after suit brought; this is no doubt true, but it is equally true that the parliament can. It is not pretended that the executive could remit the penalty in this case, but that the legislature may. Neither the constitution of the United States, or of this state, contain any prohibition to the exercise of such a power by the legislature, and their powers have no limits beyond what are imposed by one or other of those instruments, nor is it necessary that they should. They form an ample barrier against tyranny and oppression in every department of the government, and secure to the citizens every right in as perfect a manner as is compatible with a state of government. If they should, by mistake, or from any other cause, attempt the exercise of a power incompatible with the constitution, the obligation of a court to resist it is imperative. But “ it is not in doubtful cases, or upon slight implications, that the court should pronounce the legislature to have transcended their powers. In the present case, I am clearly of opinion, they have not done so. The law under consideration is not an ex post facto law, because the generally received and well settled import of the term is not applicable to a law of this character. It impairs the obligation of no contract, for the conclusive reason that no contract ever existed, and for the same reason it can not be said to destroy a vested right. 2 Dall., 304. 1 Cranch, 109.

The objection that this law works injustice to the county, is not well founded. All the rights of the county, contemplated to be secured by the law of 1819, are secured by this.

The object of the law of 1819 was to compel persons bringing slaves into this state for the purpose of emancipation, to give bond for their maintenance. This law requires the bond to be given, which has been done, and all costs of suit and damages incurred in any case to be paid, which the defendant has also offered to do in this case. The county, then, is secured, not only against prospective injury, but against all damages heretofore sustained. There is no ground of complaint, then, on the part of the county; they are secured in their rights, and lose nothing. In another point of view which this case is susceptible of, I am satisfied that the law under consideration, is not unconstitutional. On an inquiry into the different kinds of corporations, their uses and objects, it will appear that a plain line of distinction exists between such as are of a private and such as are of a public nature, and form a part of the general police of the state. Those that are of a private nature, and not general to the whole community, the legislature can not interfere with. The grant of incorporation is a contract. But all public incorporations which are established as a part of the police of the state, are subject to legislative control, and may be changed, modified, enlarged, restrained, or repealed, to suit the ever varying exigencies of the state. Counties are corporations of this character, and are, consequently, subject to legislative control.

Were it otherwise, the object of their incorporation wquld be defeated. It can not be doubted that Madison county, as a county, might be stricken out of existence, and her interest in a popular action thereby defeated. Upon what principle, then, can it be contended, that the legislature can not remit a penalty in a popular action brought for her benefit ? Every view I have been able to take of this interesting and important subject leads to the conclusion that the legislature have the constitutional power to pass the act of 1825, releasing Coles, upon the terms prescribed in that act.

The judgment of the court below must be reversed, and the proceedings remanded, with directions to the circuit court to receive the defendant’s plea upon his paying costs, Ac. ,

Starr, for plaintiff in error.

Turney and Reynolds, for defendant in error.

Judgment reversed.

         Justice Lockwood having been counsel in this cause, gave no opinion.

         In the case of Fletcher v. Peck, 6 Cranch, 138, the supreme court of the United States say, that an ex post facto law is one which renders an act punishable in a manner in which it was not punishable at the time it was committed. This definition, says Kent in the 1st volume of his Comm., page 382, is distinguished for its comprehensive brevity and precision, and it extends equally to laws inflicting personal or pecuniary penalties, and to laws passed after the act, and affecting a person by way of punishment, either in his person or estate.
      The legislature is competent to relieve from a forfeiture after judgment, and where the money goes to a county. Conner v. Bent, Missouri Rep., 235.

       In the case of The People v. Wren, it was said by the court, (approving of the case of Coles v. County of Madison,) “As the constitution of this state contains no restrictions, either express or implied, upon the action of the legislature in such a case, we hold that it has absolute control over municipal corporations—to create, change, modify, or destroy them at pleasure.” 4 Scam., 273. The same principle is held in Bradley v. Case, 3 Scam., 585. Bush v. Shipman, 4 Scam., 186. County of Richland v. County of Lawrence, 12 Ill., 8. Trustees of Schools v. Tatman, 13 Ill., 30. Gutzweller v. The People, 14 Ill., 142.
      Under the constitution of 1818, the governor had the power to grant a pardon to one convicted of a crime, and thereby not only release him from imprisonment, but also from a fine, which otherwise would have belonged to the county. Holliday v. The People, 5 Gilm., 216. And it is believed the present constitution does not lessen the power of the governor in this respect. Constitution of 1848, art. 5, sec. 8.


text:
    Adam W. Snyder, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees.
    APPEAL FROM ST. CLAIR.
    The debtors to the state bank can not raise the objection that the bank is unconstitutional.

    An averment in the scire facias issued to foreclose a mortgage given to the state bank, that “ S.” made his note to plaintiff for $760, is sufficient to show that he borrowed and received that amount.
    Judgment will be rendered against him who commits the first error in pleading.

       This is overruled by the case of Linn v. State Bank, 1 Scam., 87, which see and notes.

        Phœbe v. Jay, post. Davis v. Wiley, 3 Scam., 236. McDonald v. Wilkie, 13 Ill., 22. The People v. M. & A. R. R. Co., 13 Ill., 66. P. & O. R. R. Co. v. Neill, 16 Ill., 269.

        But the rale that a demurrer must he carried back and sustained to the first defective pleading, does not apply to a plea in abatement. If a plea in abatement is bad, although the declaration may also be defective, the demurrer will be sustained to the plea, and the defendant ruled to answer over. Ryan v. May, 14 Ill., 49.
      A demurrer to a special plea can not be carried back to the declaration, after a direct demurrer to it has been overruled, and the general issue pleaded. Brawner v. Lomax, 23 Ill., 496.

   Opinion of the Court by

Justice Lockwood.

The plaintiffs below brought a scire facias in the St. Clair circuit court, on a mortgage, executed to them under the act incorporating the state bank. The defendant below pleaded that the consideration of the mortgage was the paper of the state bank, and that the incorporation of said bank was in violation of the constitution of the United States, and that therefore he is not bound to pay said mortgage. To this plea, the plaintiffs below demurred. The circuit court sustained the demurrer, and rendered judgment for the amount due on the mortgage. From which judgment the defendant below has appealed to this court.

Reynolds, for appellant.

Cowles, circuit attorney for appellees.

The errors assigned are, 1. That the incorporation of the bank, and issuing the paper, are contrary to the constitution of the United States: 2. That there is no averment of money received by Snyder : 3. That there is no breach set out in the scire facias. As to the first point, the court are of opinion that the debtors of the bank can not raise the objection that the charter of the bank is a violation of the constitution. After having borrowed the paper of the institution, both public policy and common honesty require that the borrowers should repay it. It is, therefore, unnecessary to decide whether the incorporation of the bank was a violation of the constitution or not. As to the second assignment of error, the court are of opinion that the averment that Snyder made his note to plaintiffs for $760, is sufficient to show that he borrowed and received that amount.

The court, however, are of opinion that no breach has been assigned, and that the plaintiffs below by demurring to defendant’s plea, have opened the pleadings, so as to authorize the court to decide who committed the first error. For want then of a sufficient assignment of a breach of the note or mortgage, the judgment must be reversed with costs, and the cause remanded, with directions to permit an amendment of the scire facias, Sfc. Judgment reversed.

         Vide Craig v. The State of Missouri, where the constitutionality of the loan office of Missouri is discussed. 4 Peter’s Rep.
      Borrowers of loan office certificates are liable to pay the sum contracted for, and it is no defense to say that they are bills of credit. Missouri Rep., 452. Mansker et al. v. The State of Missouri.


text:
    David Rankin, Plaintiff in Error, v. William A. Beaird, Sheriff, Defendant in Error.
    ERROR TO ST. CLAIR.
    The legislature can by an act release a person from imprisonment who has been convicted of forgery, though one-lialf of the fine imposed against him, goes to the person attempted to be defrauded by the forgery. The sheriff releasing the convict, under such an act, is not liable for an escape.

      Blackwell, for plaintiff in error.

      T. Reynolds, for defendant in error.
   Opinion of the Court by

Chief Justice Wilson.

This action is brought against Beaird, as sheriff of St. Clair county, for $1000, for the escape of William D. Noble, who was committed to his custody upon a conviction of forgery, at the May term of the circuit court of St. Clair county, by which he attempted to defraud Rankin of $1000. The judgment of the court was, that he should be fined $2000, one half to Rankin, and stand committed till the fine and costs were paid. In January, 1823, the legislature passed an act requiring the sheriff of St. Clair county, who was Beaird, the defendant in error, to discharge Wm. D. Noble out of custody, which he accordingly did. On the trial of this cause, Beaird plead the act aforesaid in bar of the action, to which plea Rankin demurred, and the demurrer was overruled by the court, and judgment rendered for defendant. It is said that the statute relied upon by Beaird, is unconstitutional, because, by discharging Noble out of custody, it destroyed a vested interest which Rankin had in the judgment against him. It is unnecessary to inquire what interest Rankin had in the fine imposed on Noble, because, whatever interest he originally had in that, he has yet. It would be absurd to contend that he had a vested right in his imprisonment, and this act has no other effect than to discharge him from imprisonment.

It may be questioned whether Rankin had any vested interest in the fine till it was collected; but if it is admitted that he had, this act does not destroy it, but leaves him to his action. See the authorities referred to in the case of the County Commissioners v. Coles, to which this is in some respects analogous.

The judgment of the court below is affirmed.

Judgment affirmed.

       Ante, page 154.

       If a third person had acquired a vested interest in the fine, or in the costs of the suit, neither the legislature nor the Governor had power to divest him of it. Holliday v. The People, 5 Gilm., 216. Rowe v. State, 2 Bay, 565. Exparte, McDonald, 2 Wharton, 440. United States v. Lancaster, 4 Wash. C. C. R., 64, 5 Bac. Abr., 288.


text:
    Isaac Gilham and others, Appellants, v. Caldwell Cairns, Appellee.
    In chancery, all the parties in interest and whose rights may be affected, ought to be made parties to the bill, and if the court is called upon to dispense with the proper parties, some reason therefor ought to be disclosed in the bill.
   Opinion of the Court by

Justice Lockwood.

This was an appeal from the Monroe circuit court, sitting as a court of chancery, on a bill filed against the heirs of Gilham, deceased, for a specific performance of a contract executed by their ancestor to one Jacob A. Boyce, for the conveyance of a tract of land lying in Monroe county. The third error assigned is the want of proper parties to the suit, inasmuch as Boyce should have been a plaintiff or defendant, his interest being affected by the decree. The omission to make Boyce a party, is clearly erroneous. 2 Bibb’s Rep., 316, 184.. There is, no doubt, some discretion vested in a court of chancery, as to whom must be made parties, but where a court of chancery is called upon to dispense with the proper parties, some reason ought to be disclosed in the bill. In this case, for aught that appears, Boyce is alive, or if dead, has left heirs capable of protecting their rights. The court ought not to exercise a discretion in dispensing with parties who are interested, without sufficient cause being shown. For this cause, the decree must be reversed with costs. The court are also of opinion, that costs ought not to have been decreed against the defendants, admitting the decree to have been correctly made, as it does not appear that the defendants have ever refused to convey the premises, or that they have ever been requested to do it.

The court see no objection to the circuit court of Monroe county entertaining jurisdiction in this case, but on the contrary, they think there is a manifest propriety that the suit should be instituted there. They formed this opinion upon the effect given to decrees in chancery, by the 14th section of the act regulating the practice in chancery.

The other errors assigned, do not appear to be of sufficient importance to require an examination by this court. The decree of the circuit court is reversed, with costs, and the case remanded with permission to amend the bill by constituting Boyce a party, ,

Starr, for appellants.

T. Reynolds, for appellee.

Decree reversed.

      Laws of 1819, page 172.

         The want of proper parties is not a sufficient ground for dismissing the bill. It ought to stand over to make new parties. 3 Cranch, 320.
      The supreme court, in an equity cause, will not make a final decree upon the merits, unless all persons who are essentially interested are made parties to the suit, although some of those persons are not within the jurisdiction of the court. 7 Cranch, 69. 9 Wheat., 733. 10 Wheat., 152.
      All persons materially interested in the subject, ought to be parties to the suit. Hickock v. Scribner, 3 Johns. Cas. in error, 311.

       The general rule in equity requires all persons materially interested in the subject or object of the suit, however numerous, to be made parties, complainants or defendants, that all may be provided for and protected by the decree. Greenup v. Porter, 3 Scam., 65. Scott v. Moore, id., 315. Elstone v. Blanchard, 2 Scam., 420. Willis v Henderson, 4 Scam., 20. Spear v. Campbell, id., 426. Montgomery v. Brown, 2 Gilm., 581. Hoare v. Harris, 11 Ill., 24. Webster v. French, id., 254. Whitney v. Mayo, 15 Ill., 255.
      Where the parties áre numerous, and it would be very inconvenient to make all persons interested parties, bills are allowed to be filed on behalf of the complainants and all others interested. Martin v. Dryden, 1 Gilm., 209. Whitney v. Mayo, 15 Ill., 255. County of Pike v. The State, 11 Ill., 202. 4 Scam., 20.
      Courts will take notice of the omission of proper parties, though no demurrer be interposed for that purpose, where it is manifest that the decree will affect the interest of such as are not joined. Herrington v. Hubbard, 1 Scam., 573.
      In Scott, adm’r, v. Bennett, 1 Gilm., 647, the objection of want of proper parties was first made in the supreme court, and was held to be in time.


text:
    Josiah T. Betts, and Samuel Smith, adm’s of Michael Jones, dec’d, Plaintiffs in Error, v. Jesse Francis and Mary Ann his Wife, and Finley Rippy, by W. C. Greenup, his Guardian, Defendants in Error.
    ERROR TO RANDOLPH.
    The words, “ and the plaintiff doth the like,” can not be taken as a traverse of a plea of payment.
    A plea of payment is a good plea in an action of assumpsit, and without it evidence of counter demands can not be received.
    This was an action of assumpsit for money had and received, &c., brought by the defendants in error, as administrators of M. Jones, deceased. The defendants below pleaded non assumpsit, and payment, without concluding the plea with a verification, simply stating that the intestate in his life time had fully paid and satisfied, &c. Issue was joined upon the first plea, and to the plea of payment the plaintiffs added a similiter. Jury, and verdict and judgment for the plaintiffs below. To reverse that judgment a writ of error was prosecuted to this court.

      T. Reynolds, for plaintiffs in error.

      Stcvrr, for defendants in error.
   Opinion of the Court by

Justice Lockwood.

Several errors have been assigned in this cause which do not appear to merit consideration, except the fourth, which is, “ That no issue was joined on the plea of payment.” The words, “ and the plaintiff doth the like,” can not be taken as a traverse of a plea of payment. 1 Littell’s Rep., 64.

A plea of- payment is a good plea in an action of assumpsit, in order to enable the defendants to set off any demand they may have against the plaintiffs ; and without such a plea, evidence of counter demands could not be received.

From the record, this court cannot intend that the defendants were permitted to give evidence under the plea of payment. The judgment must therefore be reversed with costs, and the causo remanded with permission to the parties to amend their pleadings in the court below.

Judgment reversed.

       Although never expressly overruled by our court, yet at this time this decision can hardly be sustained. That a plea of payment is a good plea is true; but that evidence of payment could not be given under the general issue is, we think, incorrect. In Crews v. Bleakley, 16 Ill., 21, the court said that evidence tending to prove payment may be given under the general issue. And this is now the settled doctrine, 2 Greenl. Ev., p. 423, sec., 516.
      We apprehend the court was also in error in saying, “Brom the record, tins court can not intend that the defendants wore permitted to give evidence under the plea of payment.” Because the plaintiff had failed to reply to the plea, the defendants could not be prejudiced thereby. If the parties go to trial without filing a replication, it will be cured by the verdict. See note to Brazzle et al. v. Usher, ante, p. 35, whore the authorities are collected on this subject. See also Parmelee et al. v. Fischer, 22 Ill., 212. Stevenson v. Sherwood, id., 238.


text:
    Nicholas Beaugenon, Appellant, v. François Turcotte and François X. Valois, Appellees.
    APPEAL PROM ST. CLAIR.
    A party who asks equity must do equity: and where a party signed a note for specie, supposing it to be for state paper, though no fraud was practised, and a judgment was entered against him for the specie value of so much state paper as the note called for, chancery will not relieve against such judgment as it is equitable.
    If a defendant neglects to avail himself of a legal defense, a court of equity will not relieve him.
   Opinion of the Court by

Justice Lockwood.

This is an appeal from the equity side of the circuit court of St. Clair county. The bill filed in this cause alleges that the appellant when he executed the note, was deceived as to the kind of money in which it was payable, and was also deceived as to the language in which it was written. When the appellant executed the note, neither Turcotte or his agent was present, and there is no ground to charge either of them with any knowledge that any fraud or misrepresentation had been used in obtaining appellant’s signature to the note. The court below, however, acting under the impression that the appellant supposed that in executing the note he had made himself liable only to pay its amount in state paper, have reduced the judgment to the value of state paper at the time it became due. This is all that justice requires, for the appellant was willing, and agreed, according to his own showing, to become the security of Valois for the amount of the note in state paper. It perhaps might well be doubted, whether the testimony was altogether sufficient to establish the fact that any imposition was practised in obtaining the appellant’s signature to the note. But the court do not intend to disturb the decree of the court below, as we are satisfied that the appellant has received all the relief that he is entitled to, upon the most favorable view of the case. It is a well settled principle in equity, that a party who seeks relief in a court of chancery, must first do equity. In this case, neither Turcotte or his agent practised any fraud or deception. Turcotte was delayed in collecting his debt against Valois, in consequence of the appellant’s signature being by him affixed to the note, and the bill acknowledges his willingness and agreement to execute the note, supposing it to be payable in state paper. It is then no more than' equitable, that he should pay the value of state paper when the note became due. The imposition supposed to have been practised, hi representing the note to have been written in English, could produce no injury; the real imposition, if any, consisted in representing the note to be payable in paper instead of specie, for which relief has been granted. Strong doubts are entertained by the court whether the appellant was entitled to any relief. The object in a court of law in serving the process on the party, and filing a declaration ten days before court, is to apprize the defendant of the precise nature of the appellant’s demand against him, and if the defendant neglects to avail himself of the means thus furnished him, of ascertaining the cause of bringing the suit, courts of equity will seldom interfere to protect parties from the effects of such negligence, when the defense is a legal one. The authorities to this point are numerous. 1 Bibb., 173. 2 Bibb., 192.

Blackwell, for appellant.

Starr, for appellee.

Chancellor Kent, in delivering his opinion in the case of Duncan v. Lyer, 3 Johns. Ch. Rep. 356, says : “ It is a settled principle, that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” As Turcotte has not appealed, and as the court are satisfied, although the testimony is loose, that justice has been done, they will not disturb the decree, as pronounced in the court below. The decree must be affirmed with costs. ,

) Decree affirmed.

         Where a party, in an action at law, had notice of a defense in time to avail himself of it, but neglected to do so, he will not be allowed to litigate the matter in chancery, but is forever concluded by the judgment. 1 Johns. Cas., 436.
      There may be cases in which relief ought to be extended to a person who might have defended, but has omitted to defend himself at law; but such cases do not frequently occur. 7 Cranch., 332. Mar. Ins. Co. of Alexandria v. Hoopor.

      See Hubbard v. Hobson, and the cases there referred to.

       See note to Moore et al. v. Bagley et al., ante, p. 94.


text:
    Peter Kimmel, Plaintiff in Error, v. Conrad Shultz, Frederick Konig, and Lewis Mayer, Defendants in Error.
    ERROR TO JACKSON.
    Where a suit is brought against several joint debtors, a recovery must be had against all or none, unless one or more of the defendants interpose a defense which is personal to himself, such as infancy or bankruptcy.

    A judgment rendered in a sister state, is to be regarded in the same light here, as it would be in the state where it was rendered.

    The court can not notice a judgment record on which suit is brought, unless it is made a part of the record by bill of exceptions.

       In an action of debt or assumpsit against several, when all are served with process, the judgment must be against all or none, unless some of them interpose a defense personal to themselves, such as infancy or bankruptcy; and it is immaterial whether the liability is joint, or joint and several. Owen et al. v. Bond, ante, p. 128. Russel v. Hogan, 1 Scam., 552. Hoxey v. County of Macoupin, 2 Scam., 36. McConnell v. Swailes, id., 571. Tolman v. Spaulding, 3 Scam., 14. Frink et al. v. Jones, 4 Scam., 170. Wright et al. v. Meredith, id., 361. And if a writ is issued against several and served on part only of the defendants, the plaintiff must show a right of action against all, or he can not recover against such as are served with process.
      A judgment against several is a unit, and if erroneous as to one, must be reversed as to all. Brockman v. McDonald, 16 Ill., 112.

      ■ (2) Under the constitution of the United States, and the laws of Congress, the judgments in personam of the different states,-are placed on the footing of domestic judgments ; and they are to receive the same credit and effect, when sought to be enforced in different states, as they have by law or usage in the particular state where rendered. A judgment fairly and duly obtained in one state, is conclusive between the parties when sued on in another state. Bimeler v. Dawson et al., 4 Scam., 542. Welch v. Sykes, 3 Gilm., 199. Buckmaster v. Grundy et al., id., 626. Fryrear v. Lawrence, 5 Gilm., 325. McJilton v. Love, 13 Ill., 491. The cases of Mills v. Duryee, 7 Cranch, 481, referred to in the opinion of Justice Lockwood, and Hampton v. McConnel, 3 Wheaton, 234, are to the same effect.
      The defendant may show, in bar of an action on the record of a judgment, in another state, that the judgment was fraudulently obtained, or that, the court pronouncing it had neither jurisdiction of his person, nor of the subject matter of the action. If he succeed in establishing any one of these defenses, the judgment is entitled to no credit, and the plaintiff is driven to his suit on the original cause of action. See the cases cited above: also Harrod v. Barretto, 2 Hall, 302. Shumway v. Stillman, 6 Wend., 447. Starbuck v. Murray, 5 Wend., 148.
      In an action on a record which shows that the appearance of the defendant was entered by an attorney, the authority of the attorney will be presumed; but it may be shown by the defendant that the attorney had no such power, and thereby defeat a recovery. Thompson v. Emmert, 15 Ill., 415. And the same opinion is intimated in Welch v. Sykes, 3 Gilm., 197.
      The record of a judgment is used as evidence on the trial; and when introduced, affords conclusive evidence of the facts stated in it. Thus, if the record shows affirmatively that the defendant was personally served with process, or personally appeared to the action, it furnishes conclusive evidence of the fact stated, and the defendant can not controvert it. Rust v. Frothingham, post. Welch v. Sykes, 3 Gilm., 197. Thompson v. Emmert, 15 Ill., 415. Hall v. Williams, 6 Pickering, 232. 6 Wend., 447.
      In Owens v. Ranstead, 22 Ill., 161, the reasoning of the court is apparently in conflict with the cases above cited. They there held that the return of an officer to a writ, is only prima facie evidence of the facts stated in it; and in a proper case equity would relieve against the effects of it. Perhaps the better reason is, and consistent with the various decisions on the subject, that although, in an action at law on the record, the defendant can not controvert it, yet if it be untrue in fact, he may obtain relief in equity.

   Opinion of the Court by

Justice Lockwood.

This is an action of debt brought on a judgment obtained in the state of Pennsylvania against the plaintiff in error, and Henry G. Pius, and Henry A. Kurtz. The writ and declaration in this suit, are also against all of the judgment debtors, but this judgment is rendered against Kimmel only. It appears from the sheriff’s return, that the writ was executed on all the defendants, and ■no reason is assigned why the judgment was not rendered against the whole.

Several errors have been assigned, but it will be unnecessary to take notice of more than the second error, which is, that judgment was given against Kimmel on the plea of nul tiel record. This was clearly erroneous. The rule is well settled, that where a suit is brought against several joint debtors, you must recover against all the defendants or none, unless one or more of the defendants interpose a defense which is personal to himself, such as infancy or bankruptcy. Robertson v. Smith and others, 18 Johns. Rep., 459.

In this case it does not appear that Pius and Kurtz made any defense, consequently judgment ought to have been taken against them by default. The judgment for this error must be reversed with costs, and the cause remanded, with liberty to both parties to amend their pleadings.

As difficulty may arise in the further prosecution of this suit, the court think proper to remark, that according to the decision of the supreme court of the United States, in the case of Mills v. Duryee, 7 Cranch, 481, the plea of nil debet is not a good plea in an action of debt founded on a judgment recovered in any of the courts of the several states, and upon the principles assumed in that case, the third plea would be bad. Such judgments, according to that case, are to be regarded in the same light they would have been, had they been sued upon in the courts of the state where they were originally recovered. No other defense can here be made, but what could have been made in Pennsylvania, and if the common law doctrine in relation to judgments prevails in that state, the question in relation to the partnership of Kimmel, Pius and Kurtz, must be considered as conclusively settled, so far as regards this suit, by the judgment in Pennsylvania.

The decision in the case of Mills v. Duryee, has by courts of great respectability, in several of the states, been regarded as a harsh decision, and may lead to many oppressive consequences if adopted in extenso. The court, in delivering that opinion, seemed to be aware that there was a description of judgments, such as judgments obtained on attachments without notice, that ought to be an exception to their rule, and they appear to lay stress on the fact that in the case under consideration the defendant had notice and appeared in the suit.

Eddy, for plaintiff in error.

Cowles, for defendants in error.

It istherefore suggested by the court to the counsel for the defendants in error, whether it ought not to appear from the declaration what the notice in the original suit was, and what is the effect of the judgment in Pennsylvania. The laws of the several states are to be considered as facts, and in general, like other facts, ought to be averred and proved. If the law, however, presumes that the judgment was obtained upon sufficient notice of the pendency of the suit, it would probably be proper for the defendant, by plea, to allege such facts as would be sufficient to show that the judgment ought not to be clothed with its conclusive character as at common law.

The court would also remark that in case this suit should be brought again before them in regard to the effect and nature of the record produced in evidence, that the record ought to be brought up by a bill of exceptions. As it is presented to them in this case, they could not notice it. From any thing that appears on the record, it was received as evidence in the court below, without objection,

         See Browder v. Johnson, ante, page 96.


author: Justice Browne.

text:
    Josiah Wright, Plaintiff in Error, v. John Armstrong, Defendant in Error.
    ERROR TO MADISON.
    To maintain the action of replevin there must be an unlawful talcing from the actual, or constructive possession of the plaintiff.
    Armstrong, the plaintiff in the court below, sued out a writ of replevin against Wright for a horse, to which Wright pleaded non cepit; secondly, property in one Eliliu Mather ; thirdly, property in himself; and lastly, the statute of. limitations. On the trial a bill of exceptions was taken, from which it appears that the plaintiff proved that the horse in question was the property of his wife,—before her intermarriage with him, and while she was a minor, the horse strayed from her, and was not in her actual possession for five years before the commencement of the suit. The defendant proved that the horse in question was in the possession of Philip Creamer for about three years, who sold and delivered him to one Lock, who sold and delivered him to Elihu Mather, who sold and delivered him to the defendant. It was claimed that the horse had strayed from the plaintiff more than five years previous to the commencement of this suit, during a part of which time the plaintiff’s wife was a minor. No other taking was proved on the part of the defendant than the aforesaid sale and delivery, except that it was proved that Creamer took the horse into his possession after it strayed from plaintiff’s wife. The jury found the property in the plaintiff. A motion was made, on this proof, to direct a nonsuit, which the court overruled, but gave judgment on the verdict for the plaintiff, to reverse which judgment a writ of error was taken to this court, where it was assigned for error, that the court ought to have directed a nonsuit, for the reasons, first, because no actual taking of property in the plaintiff’s declaration mentioned, was proved to have been done on the part of Wright, the defendant; second, that no tortious taking of the said property was shown on the part of said Wright; and third, that no taking was proved from the plaintiff’s possession by any person.
   Opinion of the Court by

Justice Browne.

This was an action of replevin, brought against the plaintiff in error for the unlawful taking of a horse. The, defendant pleaded, besides property in himself and property in a third person, non cepit, and the statute of limitations. On the trial before the circuit court of Madison county, the defendant in error, the plaintiff helow, proved the horse was claimed to belong to plaintiff’s wife. That it was also claimed by Philip Creamer, who sold the horse to one Lock, who sold it to one Elihu Mather, who sold it to the defendant. This was all the evidence of taking by the defendant.

Starr and Cowles, for plaintiff in error.

Blackwell, for defendant in error.

To maintain the action of replevin, there must be an unlawful taking from the actual, or constructive possession of the plaintiff, which has not been proved. The judgment must therefore be reversed, ,

Judgment reversed.

         Replevin lies for any unlawful taking of a chattel, and possession by the plaintiff and an actual wrongful taking by the defendant, are necessary to support the action. Pangburn v. Patridge, 7 Johns. Rep , 140.
      _ The action of replevin is grounded on a tortious taking, and sounds in damages like an action of trespass. Hopkins v. Hopkins, 10 Johns. Rep., 369.
      At common law, a writ of replevin never lies, unless there has been a tortious taking, either originally or by construction of law, by some act which makes the party a trespasser ab initio. Meany v. Head, 1 Mason, 319.
      The plea of non cepit puts in issue the fact of an actual taking; and unless there has been a wrongful taking from the possession of another, it is not a taking within the issue; and a wrongful detainer after a lawful taking, is not equivalent to an original wrongful talcing. Ibid.

      A mere possessory right is not sufficient to support this action; there must be an absolute, or at least a special property in the thing claimed. 5 Dane’s Dig., 516.

       The present statute in relation to replevin is as follows : “ Whenever any goods or chattels shall have been wrongfully distrained, or otherwise wrongfully taken, or shall be wrongfully detained, an action of replevin may be brought for the recovery of such goods or chattels, by the owner or person entitled to their possession.” Purple’s Statutes, p. 868, Sec. 1. Scates’Comp., p. 226.


text:
    Alsworth Baker, Appellant, v. Samuel Whiteside, Appellee.
    APPEAL FROM MADISON.
    As a general rule, the terms of a written agreement can not be changed by parol, but the time of its performance may be extended.

    To a declaration on a contract to convey a lot of ground by deed, if one hundred and twenty-five dollars was paid at a certain time, a plea, that no demand was made for the deed, and that defendant was always ready and willing to execute it, and that the defendant offered to make the deed according to his covenant, and the plaintiff objected and said when he wished the deed he would apply for it, is good.

       The time of performance of a contract may be extended by a subsequent parol agreement, and no new consideration is necessary, where there are mutual acts to be performed by the parties. Wadsworth et al. v. Thompson, 3 Gilm., 423.
      , It is a familiar principle, that you may give evidence to explain, but not to vary, add to, or alter a written contract. This is a general rule. But if there is doubt and uncertainty, not about what the substance of the contract is, but as to its particular application, it may be explained and properly directed. Lane v. Sharp, 3 Scam., 573. Doyle et al. v. Teas et al., 4 Scam., 257. Scott, administrator v. Bennett, 3 Gilm., 254. Scammon v. Adams et al., 11 Ill., 577. O’Reer v. Strong, 13 Ill., 689. Harlow v. Boswell, 15 Ill., 57.

       In case of bond to convey land, the purchaser is not bound to prepare and tender a deed to the vendor to execute, unless such obligation can be fairly inferred from the terms of the contract. The rule may be different in England. Buckmaster v. Grundy, 1 Scam., 314. 2 Randolph, 20.

   Opinion of the Court by

Chief Justice Wilson.

This is an appeal from the Madison circuit court, in an action of covenant on a writing obligatory, executed by S. Whiteside to A. Baker, in the penalty of two hundred dollars, that if he, the said Baker, should pay to the said Whiteside one hundred and twenty-five dollars, on or before the first day of October next ensuing, he, the said Whiteside, would execute and deliver to the said Baker, a deed in fee simple, for a lot in the town of Bdwardsville.

Baker avers in his declaration, that he did pay the sum of one hundred and twenty-five dollars, according to agreement; nevertheless, the said Whiteside did not, on the first day of October, or at any time before or since, execute and deliver to the said Baker, a good and sufficient deed, although often requested so to do. To this declaration, the defendant pleaded two pleas :

1. That the plaintiff made no demand of the said defendant, for the deed specified, and that the said defendant was always ready and willing to execute the same.

2. That the said defendant offered to make the deed according to his covenant, and the said plaintiff objected, and said, when he wished the deed he would apply for it.

Starr, for appellant.

Cowles, for appellee.

Both these pleas are demurred to, and the question presented for our determination is, whether or not, the court below erred in overruling the demurrers.

As the second plea presents the strongest ground of defense, we will consider it first. If it is a correct principle of law, and that it is, the court is fully satisfied, that he who prevents a thing from being done, shall not avail himself of the non-performance he has occasioned, the demurrer was correctly overruled. The plaintiff’s conduct can be considered in no other light than a waiver of the condition of the bond so far as related to the time of its performance. As a general rule, it is true, that the terms of a written agreement can not be changed by parol, but that the time of its performance may be extended, is settled by a variety of cases; that of Keating v. Price, 1 Johns. Cases, 22, is directly in point. In that case, the defendant promised in writing, to deliver a quantity of staves, on or before the first day of May, 1796. The defendant, on the trial, proved, that in January, 1796, the plaintiff agreed to extend the time until the spring following. The court said, that an extension of time may often be essential to the performance of contracts, and there can be no reason why a subsequent agreement for that purpose, should not be valid, and proved by parol evidence.

The first plea, the court is of opinion, is also good. According to the true construction of the contract, no time is fixed for executing and delivering the deed; a demand by the plaintiff was therefore necessary, and as no such demand is averred specially, the demurrer to the plea was correctly overruled. The judgment of the court below is affirmed, and the cause remanded, with leave to the plaintiff to with-' draw his demurrer, and take issue on the pleas filed,

Judgment affirmed.

       Justice Smith having been counsel in this cause, gave no opinion.

         3 Durnford and East’s T. R., 591. Philip’s Evidence, 439. The time of the performance of the condition of a bond may be enlarged by a parol agreement between the parties. Fleming v. Gilbert, 3 Johns. Rep., 528. See also Thompson v. Ketchum, 8 Johns. Rep., 189.