text:
    Fidelio C. Sharp, plaintiff in error, v. Edward A. Bedell, defendant in error.

      Error to Hancock.

    An appeal bond contained a condition that if the defendants “should pay and satisfy whatever judgment might be rendered by the Circuit Court of Hancock county upon the dismissal or trial of a certain appeal,” &c. The appeal having been entered in that Court, the venue was changed to another county, where the judgment of the justice of the peace was affirmed. A suit was brought upon the appeal bond, when one only of the sureties Was served with process, and in the declaration, the breach assigned was the non-payment of that judgment. There was a demurrer to the declaration, which the Court sustained: Held, that the bond, not being in compliance with the statute, could not, under the circumstances, be enforced.
    The officers of the law have no authority to take or accept appeal bonds which do not conform to the statute j but if they are taken, the appellee should object to the appeal bond in the Circuit Court, and have it perfected. If he does not object, he must abide by his own neglect.
    In Courts of Law, the liability of a surety will not be extended by implication beyond the terms of the contract.
    Debt upon an appeal bond, brought by the plaintiff in error against the defendant in error and others in the Hancock Circuit Court, and heard before the Hon. Norman H. Purple, upon a demurrer to the declaration, at the September term, 1847. The demurrer was sustained, and a judgment rendered in favor of the defendant for costs.
    The condition of the bond declared on is set forth in the Opinion of the Court.

      li. S. Blackwell, and 0. H. Browning Sc «7V. Bushnell, for the plaintiff in error.
    It was the intent of the law to make the appellee in the Court below secure in his judgment in whatever Circuit Court it might be recovered. Rev. 8tat. 325, § 70; McConnell v. Swailes, 2 Scam. 571; Watts v. Waddle, 6 Peters, 389; 1 U. S. Dig. 180, § 441; ib. 183, § 536.

      G. Edmonds Jr. and C. Jl. Warren S' O. C. Skinner, for the defendant in error.
    The obligation of the defendant should be construed according to the general rules of construction, and is not to be extended beyond its terms. Davis v. The People, 1 Gilm. 409; Waters v. Simpson, 2 do. 570; The United States v. Dixey, 3 Wash. C. C. R. 15; Same v. Mitchell, ib. 95; Baylies v. Fettyplace, 7 Mass. 338; 1 U. S. Dig. 180, § 437; 9 Wheat. 380.
    There is a variance between the declaration and the contract of the defendant. Hart v. Tolman, 1 Gilm. 1; Curry v. Hinman, 3 do. 90.
    When the change of venue was prayed for, the obligee in the appeal bond should have required the bond to be perfected so as to conform to the statute. Wot having done so, he must abide by his neglect. Young v. Mason, 3 Gilm. 55.
   The Opinion of the Court was delivered by

Trumbull, J.

This was an action of debt brought against Cyril Call, Chester Loveland, Chauncy Loveland, and Edward A. Bedell, upon an appeal bond. Bedell was alone served with process.

The declaration, after setting forth the making of the bond, &c. in the usual form, alleges that it was subject to a condition, “that if the said Chester Loveland and Cyril Call should pay and satisfy whatever judgment might be rendered by the Circuit Court of Hancock county, upon the dismissal or trial of a certain appeal to the said Circuit Court taken by them from a judgment rendered by George Rockwell, Esq., a justice of the peace, within and for said county, on the 15th day of February 1845, where Fidelio C. Sharp was plaintiff, and Chester Loveland and Cyril Call were defendants, for the sum of ninety six dollars, debt, and six dollars and seventeen cents, costs of suit, in favor of the said plaintiff and against the said defendants, then said obligation was to be void, otherwise to remain in full force and virtue.”

The declaration then alleges that after said appeal was taken, an order was made by the Circuit Court of Hancock county, whereby the venue in said cause was changed to the county of McDonough; and that at the May term, 1847, of the Circuit Court of McDonough county, upon a trial of said cause, the judgment of the justice of the peace was affirmed for the sum of ninety six dollars and costs. The breach assigned is the non-payment of this judgment. The defendant, Bedell, filed a general demurrer to this declaration, which was sustained by the Court, and judgment rendered against the plaintiff for costs.

The sufficiency of the declaration is the only question for our consideration, and this depends upon the construction to be put upon thé condition of the bond as therein set forth. It is admitted that the declaration shows no breach of the condition of the bond in terms, as,the defendant never undertook in so many words, to pay any other judgment than such as might be rendered by the Circuit Court of Hancock county; but then it is insisted, that inasmuch as the law intends appeal bonds for the security of the appellee in case his judgment is affirmed, and inasrimch as the law authorizes changes of venue, the language used in the condition of the bond is to receive such a construction as will effectuate the legislative intention, which never could have been to allow the obligors upon an appeal bond to escape respon-. sibility, by procuring a change of venue from the Court to which the appeal was taken. In other words, it is insisted that the law in reference to changes of venue, entered into and became part of the contract, in the same manner as if it had been incorporated into the condition of the bond, and the defendant had obligated himself, in so many words, to pay whatever judgment might be rendered upon the dismissal or trial of said appeal, either by the Circuit Court of Hancock county or of any other county, to which the case might be taken by change of venue.

This would undoubtedly be the case, were the suit brought upon a bond conditioned as the law requires, but he who would call upon the Court to give such a construction to an obligation as will effectuate the legislative intention, must first show, on his part, an obligation in accordance substantially at least with the legislative intention. The plaintiff in this case does not show such an obligation. The condition of appeal bonds as prescribed by the statute, after setting forth that whereas a judgment has been recovered, an appeal taken, &c., is as follows, to wit: “Now if the said-shall prosecute his appeal with effect, and shall pay whatever judgment shall be rendered by the Court upon dismissal or trial of said appeal, then the above obligation to be void, otherwise to remain in full force and effect.”

Had the bond declared upon been conditioned according: to the statute, the case would have been free from difficulty, and neither a loose construction nor the aid of other statutes would have been invoked to authorize a recovery upon the bond. The declaration,.however, describes a bond essentially variant in its conditions from the one required by statute. It differs, first, by wholly omitting the condition, to prosecute the appeal with effect, and secondly, the obligors instead of binding themselves generally to pay whatever judgment might be rendered by the Court, upon dismissal or trial of the appeal, have limited their liability to the payment of such judgment as might be rendered by a particular Court, to wit, the Circuit Court of Hancock county. We may well suppose that in prescribing the form of the condition of appeal bonds, the Legislature may have had in view the possibility of changes of venue, and therefore used the words “the Court” which would apply to any Court to which the cause might be taken, instead of the words the “said Court,” or the Circuit Court of a particular county.

Several cases have been referred to by the plaintiff in error, which are supposed to be analogous to the present, but the one most relied upon is that of Watts v. Waddle, 6 Peters, 389, which, however, is clearly distinguishable from the present. That was a suit in Chancery for the specific performance of a contract to convey by warranty deed certain tracts of land, so soon as a final decree should be rendered by the United States’ Circuit Court for the District of Ohio, in a suit there pending in said Court, the object of which Was to vest the legal title in the vendor, so that he might be able to convey a perfect title to his vendee. The bill was filed in 1826. A final decree from which an appeal had been taken, was obtained in the Circuit Court in 1818, and it was insisted .that it was the duty of the vendor, at that time, to have executed the conveyance. The Court say: “In the contract there was a reference to the final decree of the Circuit Court, but as the decision of that Court was not final in the case, and as an appeal was actually taken, by some of the defendants to the1 Supreme Court, it may reasonably be inferred that this contingency was within the calculation of both parties at the time of the contract. * * There can be no difficulty in coming to the conclusion that both parties referred to a final decision of the case; and to such a decree as should vest the legal title in Watts,” who was the vendor; and the Court held that there was no negligence imputable to Watts till such a final decree was obtained in the Supreme Court, though for other reasons a specific execution of the contract was refused.

We have no fault to find either with the decision or the reasoning of the Court in the case of Watts. The question was, whether Watts had been guilty of such negligence as to prevent the relief he was then seeking. It was a mere question of time, which in Equity is not usually material, and as the object of delaying the execution of the conveyance until the final decision of the Circuit Court, was to enable Watts to obtain the legal title, so as to be able to execute a conveyance in compliance with his contract and the understanding of the parties, it is manifest, that the object was . not attained by a decree which was rendered nugatory by appeal, and was not, therefore, final according to the terms of the contract. Moreover, the rules of construction adopted by Courts of Equity in construing contracts and carrying into effect the intentions of parties, are widely different from those which prevail in Courts of Law in reference to the liabilities of securities. In the former Courts, defective instruments will sometimes be supplied and contracts reformed, so as to be made conformable to the precise intent of the parties. Equity does not regard the forms of instruments, but looks into the intent. It is not so in Courts of Law, so far as securities are concerned. Their liability is not to be extended, by implication, beyond the terms of the contract. To the extent, and in the manner, and under the circumstances pointed out in their obligations, they are bound, and no farther. 9 Wheat. 680.

The bond declared upon is not void, if voluntarily entered into, but the defendant is only liable according to its terms. His liability cannot be extended so as to make him responsible to the same extent as if he had entered into an obligation conditioned as the law directs.

It matters not that the parties executing the bond may have derived from it all the advantages which a perfect bond would have given them, or that they even intended to execute such a bond as the law requires. A statute of Massachusetts authorized a debtor confined in jail to obtain the liberty of the jail yard by executing bond in double the sum for which he was imprisoned. A bond for $1189 and only twenty four cents less than double was held by the Supreme Court of that State not to be a statutory bond, although it was insisted that the penalty being less than the statute authorized, the defendant, who was one of the securities upon the bond, was not injured by the variance, and that he ought not to be permitted to avail himself of a variance which was no injury either to himself or his principal. The Court say: “If the penalty be not double the sum for which the debtor is imprisoned, it is not a bond within the statute of 1784, ch. 41, and the debtor may be relieved against the penalty by a judgment for the sum for which he ■was imprisoned.” “It is probable that this bond was not made pursuant to the statute, from an error in computation not from design. Sheriffs should be careful in this respect.” “If the bond which the debtor gives, is not pursuant to the statute, and the sheriff, upon such authorized bond, grants the debtor the liberty of the yard, this will be an escape in the sheriff.” Clapp v. Cofran, 7 Mass. 98; Freeman v. Davis, ib. 200.

. The same language addressed by the Supreme Court of Massachusetts to sheriffs in that State, might with propriety be addressed to officers in this State who approve appeal bonds. They have no authority to take or accept bonds which do not conform to the statute. If, however, such bonds are taken, it is in the power of the appellee, in the Circuit Court where the appeal is pending, to object to the bond and have it perfected. If he make no objection, as was said by this Court in the case of Young v. Mason, 3 Gilm. 55, “he must abide by his own neglect.” The bond upon which Young brought suit in the case, omitted the words “on trial” after the word “dismissed” as required in the condition of the appeal bond, and this Court held, that the obligors upon said bond were not liable to pay the judgment rendered by the Circuit Court upon the trial of said appeal, although there was another covenant in the bond that the appellants should prosecute their appeal with effect. This covenant, it was held, only entitled the appellee to nominal damages, as there was no evidence that the non-prosecution of the appeal by the appellants had caused any damages. A similar decision had been made in Massachusetts, as to the-construction of the words, “to prosecute an appeal with effect.” Hobart v. Hilliard, 11 Pick. 143.

It has been decided in Maine, that a recognizance to appear and prosecute an appeal made to a higher Court, and abide the order of said Court thereon, and not depart without license, is not forfeited by a default at a subsequent term in the Court appealed to, the appeal having been duly entered at the first term and the appeal continued. The State v. Richardson, 2 Greenl. 115.

It would have required quite as little construction to have held the securities liable in the case of Young, or those referred to in Massachusetts and Maine, as it would to hold Bedell responsible in the present suit, and the same answer must now be given to Sharp that was given by this Court to Young. Bedell only bound himself to pay whatever judgment should be rendered by the Circuit Court of Hancock county, upon the dismissal or trial of the appeal. The re7 cord shows that the Circuit Court of Hancock county never dismissed the appeal, or tried the case, but that it was removed to the county of McDonough; consequently no breach of the condition of the bond is in terms shown, and the conditions of the bond not being in accordance with the statute, we are of opinion that Bedell cannot be held responsible by implication beyond the terms of his obligation, as therein expressed.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed»


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Benjamin Goddard et ux., appellants, v. Benjamin F. Hart et ux., appellees.

      Appeal from Stephenson.
    Oil the trial of a joint action of trespass against a husband and wife for an assault, the Court admitted evidence of an assault by the husband alone, and refused to instruct the jury that the plaintiff could not recover damages for such separate assault: Held, that the decisions were clearly erroneous.
    Trespass for an assault, brought by the appellees against the appellants in the Stephenson Circuit Court, and heard before the Hon. Thomas C. Browne and a jury at the August term, 1846, when a verdict was rendered in favor of the plaintiffs below for the sum of $534-16 damages.
    All the facts necessary to the determination of this case are concisely stated by the Court in the Opinion.

      S. T. Logan, for the appellants.

      0. Peters, for the appellees.
   The Opinion of the Court was delivered by

Treat, C. J.

This was a joint action against husband and wife for an assault. On the trial, the Court admitted evidence of an assault by the husband, in the commission of which the wife did not in any manner participate; and also refused to instruct the jury, that the plaintiffs could not recover damages for the separate assault by the husband. These decisions were clearly erroneous. The recovery in this case could not be pleaded in bar of an action against the husband for the separate assault.

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

Judgment reversed.


author: Trumbull, J.

text:
    Hiram G. Ferris, plaintiff in error, v. David Crow, defendants in error.

      Error to Hancock.
    A fee-bill, to have the force and effect of an execution, should run in the name of KThe People of the State of Illinois.11 The Legislature may prescribe its own means for the collection of fee-bills, but it cannot dispense with a constitutional provision, which becomes a matter of substance and must be pursued.
    Ejectment, in the Hancock Circuit Court, brought by the, plaintiff in error ¿gainst the defendant in error, and heard before the Hon. Norman H. Purple, at the September term, 1848, when a judgment was rendered against the plaintiff for costs.
    So much of the evidence as relates to the only point in controversy, and is necessary to the determination of the cause, is stated in the Opinion of the Court.

      C. Jl. Warren Sr O. C. Skinner, for the plaintiff in error,
    made the following points, and cited the Revised Statutes, p. 251, 39.
    1. A fee bill is not made an execution or process, but it is to have the force and effect of, do and perform the functions of an execution.
    2. The 28th section provides that a “copy or transcript of such bill of costs from the fee book shall have such effect. That process, in the sense contended for, as prescribed in the Constitution, is not intended by the Legislature, is apparent from the 29th section, where its objéct will be seen to differ from that of an execution which might have been issued with it. '
    3. The Legislature is competent to provide such means as its wisdom may deem expedient, and land may be sold without process, either by judgment alone, by decree, by the Master in Chancery, by precept, as in modern tax sales, or by the Auditor, as in old tax sales. Are such sales all void ?
    The fee bill would be neither copy or transcript of costs in book, if it did run as the book does not, “in the name of the People,” &e.

      Process, as recognized by the Common Law, is so intended by the Constitution.
    O. H. Browning Sr «V. Bushnell, for the defendant in error.
    The fee bill under which the sale of the land in controversy was made, was void, as not running in the name of the People, as required by the Constitution. R. L. 42, Art. IV, §7.
    The fee bill is by the statute made process. When delivered as an execution, it is declared t o have the force and effect of an execution, ib. 296, §§ 6, 7, 8. And it has, in several cases, been decided by this Court to be subject to the usual incidents, and subject to the various statutory provisions relating to executions. Ere. Ap. 16, 19, 20; The People, &c. v. Roper, 4 Scam. 560.
    An execution is final “process,” (3 Black. Com. 279,) or, as it is sometimes called, a judicial writ. 2 Duer’sPrac. 285.
    Where a Constitution or a statute in relation to Courts or process, &c., makes use of technical terms, the words will be taken as used in their technical sense. Merchant's Bank v. Cook, 4 Pick. 411; Bedell v. Janney, 4 Gilm. 205. The Common Law will determine their meaning. Ex parte Dorsey, 7 Ala. 303-4, 371; Mayo v. Wilson, 1 New Hamp. 55, 56.
    There is hence no ambiguity in the meaning of the words “writ” or “process,” and in such case the will of the people, as expressed in the Constitution,.must be carried out by the Courts. 2 Peters, 662; 3 A. K. Marsh, 489 ; 1 Pick. 45 § ib. 260; 9 Porter, 266.
    The requisition of the Constitution, that writs and process shall run in the manner specified, is not open to equitable construction. It is one of those purely arbitrary regulations in which form becomes substance, and must be literally pursued in the manner prescribed. ■ Bre. 4 ; 15 Verm. 72; 22 Pick. 387; 1 East, 64; lCowp.32; 1 Scam, 323; 20 Wend. 249; 11 Mass. 281.
    In pursuance of these principles, the question now before the Court has been frequently decided in this country. In every instance where the question has arisen, it has been uniformly decided that an execution or writ not running in the name of the People or State, where it was required by the Constitution, is null and void. 2 Gilm. 670; 1 New Hamp. 139; 9 Pick. 446; 1 Missouri, 537 ; 4 do. 27 ; 5 do. 227 ; 1 Ark. 53; ib. 131; 5 do. 104.
   The Opinion of the Court was delivered by

Trumbull, J.

This was an action of ejectment, and the plaintiff, in deducing title to the land in question, offered in evidence as the foundation of a Sheriff’s deed, a judgment ■and a fee bill under which the land had been sold.

The fee bill was a copy of the bill of costs from the fee book of the clerk, and contained a direction to the Sheriff to collect the amount thereof, but-did not run in the name of “ The People of the State of Illinois.55 The Circuit Court refused to admit the fee bill in evidence, whereby the Sheriff’s deed founded upon it became also inadmissible, and the plaintiff’s chain of title being thereby broken, judgment was rendered against him for costs.

The plaintiff assigns for error the refusal of the Circuit Court to admit the fee bill in evidence, and that is the only point in the case.

The Constitution provides, that all process, writs and other proceedings, shall run in the name of ‘ The People of the State of Illinois.’ ” This fee bill does not so run, but it is insisted that a fee bill is neither process .nor a writ, and that if it run in the name of -the “The People,” &c., it would not be a copy of the bill of costs, and hence, not consistent with the 28th sec. of the 41st ch. Rev. Stat., which authorizes the clerk to make out and deliver to the Sheriff, or any constable, “a copy or transcript” of the bill of costs, which shall have the force and effect of an execution and be collected as such.

Secondly, that the Legislature is competent to prescribe such means as its wisdom may suggest for the collection of -fee bills.

If a precept issued to a sheriff, which has the force and effect of an execution, and under and by virtue of which, /the sheriff collects the amount of money therein specified, is neither a writ nor process, we are at a loss to know what it is. Literally, it answers to the meaning of writ or process, and in law, it has the effect of an execution, which is certainly a writ or process, if there be such words.

It is a misapprehension to suppose that the fee bill would -cease to be a copy of the bill of costs because it had prefixed to it the words “ The People of the State of Illinois. ” It .might as well be contended that it was not a copy because it had annexed to it the certificate of the clerk, and a direction to the sheriff to make the money, which appear annexed to the fee bill in this very case, and which would render it void, if the position be correct that the fee bill must be a copy of the bill of costs from the fee book of the clerk, having neither beginning nor ending to show what it is. Such is not the meaning of the statute, nor is a fee bill any the less a copy of the items of costs, because it has prefixed to it the words “ The People of the State of Illinois, ” and has annexed at the foot the certificate of the clerk, stating it to be a copy from his fee book, and commanding the sheriff to make the money.

As to the authority of the Legislature to prescribe its own means for the collection of fee bills, it is certain that when a writ or process is issued for that purpose, it cannot dispense, if it would, which it' has not, with the constitutional requirement that such writ or process must run in the name of the People. This is not a question that admits of argument. It is enough that the Constitution has so declared; why it has so provided is not for the Courts to inquire, nor is it in the power of the Courts to dispense with the requirement. A particular form, when prescribed by the Constitution, becomes matter of substance, and must be pursued.

Although we feel no difficulty in determining, upon principle, that the fee bill in this case was void, and therefore properly excluded when offered in evidence, still, it may not be amiss, in addition to an authority in our own Court, (2 Gilm. 560,) to refer to several other cases decided in other States, upon similar provisions in their Constitutions.

The Constitution of Arkansas declares that “all writs and other process shall run in the name of the State of Arkansas. ” Writs which did not so run were held void, by the Supreme Court of that State. Gilbreath v. Kuykendall, 1 Ark. 50; Estell v. Baily, ib. 131.

The Supreme Court of New Hampshire, in the case of Hutchins v. Edson, 1 New Hamp. 139, in construing that clause of their Constitution which requires that “ all writs shall be under the seal of the Court whence they issue, ” held that a writ not under seal was “ no better warrant for an arrest than a piece of blank paper,” and that “an Act of the Legislature directing the Courts to issue writs without seal would be repugnant to the Constitution, and void.”

The Constitution of Missouri declared, “all writs and process shall run in the name of the State of Missouri. ” The Courts of that State have held, in a number of cases, that writs which did not so run, and all the proceedings founded upon them, were void. Fowler v. Watson, 4 Missouri, 27; Little v. Little, 5 do. 227.

If there was any doubt as to the effect of omitting to make a writ or process run in the name of the People, it ought surely to be removed, by reference to the foregoing decisions, made by different State Courts upon clauses in their Constitutions, in this respect precisely analogous to that in our own.

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

Judgment affirmed,.


text:
    Hugh W. McGinnity, appellant, v. Peter L. Laguerenne et al., appellees.

      Appeal from Peoria.

    In an action of debt, it was alleged in one count of the declaration, that the defendant, at &c., “by his promissory note of that date by him made, for value received, four months after the date of said note promised the said plaintiffs to pay them or their order without defalcation the sum of four hundred and ten dollars,” and the count concluded with the usual refusal and request to pay: Held, that the count was sufficient, and not bad as a count in debt, the word “promised” not being used by way of averment, but as a description of the instrument sued on.
    Another count in the same action alleged an indebtedness for money lent, goods sold, work done, &c., and concluded with an averment that the defendant “in consideration thereof promised the plaintiffs to pay them said last sum when thereunto requested,” &c.: Held, that the conclusion made it a count in assumpsit, the word “promised” being used instead of “agreed.”
    The only distinguishing feature between the common counts in assumpsit and in debt is, that in the former action the word “promised” is used, and in the latter the word “agreed.”
    Debt, in the Peoria Circuit Court, brought by the appellees against the appellant, and heard at the May term, 1848, before the Hon. John D. Catón, who found the issues for the plaintiffs below, and rendered a judgment accordingly for the sum of $518 debt, and $179-30 damages. The defendant entered a motion for a new trial, which was overruled.
    <7. Manning, L. B. Knowlton and E. G. Sanger, for the appellant.
    In this case a count in assumpsit is misjoined with a count in debt, for which cause the motion in arrest of judgment should have been sustained by the Court below.
    The general rule is, that when the same plea may be pleaded and the same judgment given on all the counts of the declaration, or wherever the causes of action are of the same nature and may properly be the subject of counts in the same species of action^ they may be joined; otherwise, they cannot. 1 Chitty’á PI. 229; 1 Tidd’s Pr. 11; Hays v. Borders, 1 Gilm. 50.
    In this case, if judgment had been rendered on the count in assumpsit in damages, (the proper form,) the judgment would have been arrested. Heyl v. Stapp, 3 Scam. 96; Mager v. Hutchinson, 2 Gilm. 270; Howell v. Barrett, 3 do. 434; Jackson v. Haskell, 2 Scam. 565. So that neither could the same plea be pleaded to the different counts, nor could the same judgment be rendered upon them; nor do they set forth different causes of action, in the same species of action.
    A count stating that the defendant was indebted to the plaintiff for work and labor, and being indebted he promised to pay, &c., is not a good count in debt, and cannot be joined with counts in debt. 1 Bouv. Bac. Abr. 71, title, Actions in General, (C.); Brill v. Neele, 5 Eng. Com. Law R. 264. The case of Brill v. Neele, as reported by Chitty, 18 Eng. Com. Law R. .180, is precisely similar to the present, where for the misjoinder of assumpsit and debt, the declaration was held bad.
    And this defect is not cured by the verdict. Cooper v. Bissell, 16 Johns. 146; Selby v. Hutchinson, 4 Gilm. 327;
      Corbett v. Packington, 13 Eng. Com. Law R. 170; Tarrells v. Page, 3 Hen. & Munf. 118.

      Q. Peters, for the -appellees.
   The Opinion of the Court was delivered by

Trumbull, J.

This was an action of debt, commenced by the appellees against the appellant, upon’a promissory note and an account. The declaration contains two counts, the first of which is special upon the note, and the second, the common money counts for goods sold, work done, &c., all in one count. After the issues were found for the appellees in the Court below, the appellant entered a motion in arrest of judgment, which motion was overruled and judgment entered in favor of appellees for five hundred and eighteen dollars debt, and one hundred and seventy nine dollars and thirty cents damages.

Several errors have been assigned, only one of which, the overruling the motion in arrest of judgment, we deem it necessary to notice, as that is decisive of the case. The declaration commences in debt, and the first count sets forth that the appellant on a certain day and year, at, &c., “by his promissory note of that date, by him made, for value received, four months after the date of said note, promised the said plaintiffs to pay them or their order without defalcation, the sum of four hundred and ten dollars,” and concludes with a request and refusal to pay. This count is sufficient. It sets forth the legal effect of the note sued upon, and the liability to pay arises from the character of the instrument; hence the usual allegation, “whereby the said defendant then and there became liable to pay^”&c. was wholly unnecessary. Nor is the count bad as a count in debt. The word promised is not used by way of averment to show the liability of the party to pay, but as descriptive of the instrument sued upon.

The second count, however, is of a different character. That is not a special count upon a contract which of itself creates a debt and raises a liability to pay, but the general in debitafus count upon the implied promises of the appellant,and after setting forth that the appellant was indebted to the appellees in a certain sum of money, for money lent, goods sold, work done, &c., it concludes by averring that the appellant “in consideration thereof, promised, the plaintiffs to pay them said last sum when thereunto requested,” &c. This conclusion makes the second a count in assumpsit and not in debt. Had the pleader intended it for a count in debt, he should have used the word agreed instead of the word “promised” or have stated the liability, so as to have avoided the use of the latter word. This case comes directly within the decision made at this term in the case of Cmile shank v. Brown, (ante, 75)]and because of the misjoinder of counts in debt and. 'assumpsit the judgment will have to be reversed. So long as the distinction between forms of action is kept up, parties must observe those distinctions or abide the consequences.

The only distinguishing feature between the common counts in assumpsit and in debt is, that in the one the word promised is used, and in the other it is not. If this distinction is disregarded, it'will be impossible for a defendant to know from the declaration in which form of action he is sued, and consequently he cannot know how to frame his defence, as the pleading as well as the judgment in the two actions is different, and what would be a good defence, as for instance the statute of limitations of five years, if the action were assumpsit, Would be no defence if the action were debt.

The judgment of the Circuit Court is reversed, and the cause remanded with leave to the appellees to amend their declaration.

Judgment reversed.


author: Caton, J.

text:
    The People of the State of Illinois, for the use of George T. Hoke, guardian, &c. plaintiff in error, v. Jefferson Ammons, defendant in error.

      Error to Clinton.

    In an action of debt upon a guardian’s bond, for the purpose of sustaining an issue made, the appointment of a second guardian signed by a person claiming to be a Probate 'ustice and tested with a scroll, was offered in evidence. There was no certificate from him that he had no official seal, nor from the County Commissioners’ Clerk of his official capacity. A witness was called for the purpose of proving the handwriting of the Probate Justice, and that he was recognized and acted in that capacity, as well as that there had been no public seal provided for his office. The Court did not permit the testimony to be given: Held, that the testimony was improperly excluded, as it would have shown that he was an officer de fació, and as such, his acts would have been as valid and binding where the interests of third persons or the public were concerned, as if he had been an officer de jure.

    Debt upon a guardian’s bond, in the Clinton Circuit Court, brought by the plaintiffs in error against the defendant in error, and heard before the Hon. Gustavus P. Koerner, at the May term, 1847, when a judgment was rendered for the defendant for costs.

      J. Gillespie, for the plaintiffs in error.
    It is sufficient to prove that Vernor was the Probate Justice of the Peace of Washington County de facto. Pritchett v. The People, 1 Gilm. 525. The fact cannot be inquired into collaterally.
    At No. 22, Appendix to the Revised Statutes, page 586, § 1 it is provided that all proceedings had before Probate Justices under the laws in reference to minors, &c. shall be good evidence in any other county.
    Probate Justices may use private seals where no public seal is provided for them. Rev. Stat. 428, § 11.

      B. Bond, and G. Trumbull, for the defendant in error.
    It was necessary for the plaintiff to have shown, by a certificate from the County Commissioners’ Clerk of Washington County, under the seal of the Court, that Vernor was, at the time of the date of the supposed letters of guardianship, Probate Justice for that county, as the letters were offered in evidence in another county.
    No private seal is attached to the paper, nor does Vernor state that he had not been provided with a public seal for said office.
    The case of Pritchett v. The People, cited by plaintiff’s counsel, has no application here, as it depended on á different state of case.
   The Opinion of the Court was delivered by

Caton, J.

But a single question is presented by this record. Upon the trial before the Court, for the purpose of sustaining the issue presented on the third plea, the plaintiffs offered the original appointment of Hoke, as guardian, signed by Z. H. Vernor as Probate Justice of the Peace of Washington county, and tested in his name with a scroll attached. There was no certificate by the Probate Justice that he had no official seal, nor was there any certificate from the Clerk of the County Commissioners’ Court that he was the Probate Justice. To obviate these difficulties, the plaintiffs offered to prove by a witness, that he was well acquainted with Vernor, and his handwriting, and at the time of said appointment and for some time before and after, he was the Probate Justice of the Peace of Washington county, and was universally recognized and acted as such, and that his signature to the letter of appointment offered was genuine, and that there was no public seal provided for said Probate Court. This evidence was ruled out by the Court and the letter of appointment rejected, to which the plaintiff excepted.

The law of 4th March, 1887, providing for the election of Probate Justices of the Peace, does not provide, nor does it contemplate, that they shall have a public-seal, and this letter of appointment was issued long before the passage of the law of March 1, 1845, which authorizes them to make certain certificates under such a seal. The latter law not having been in. force at the time the appointment was made which was offered in evidence, can have no effect upon it. It was the original, and not a certified copy, that was offered, which was not required to be under an official seal.

There is no law making the certificate of the County Commissioners’ Clerk the only evidence of the official character of the person professing to act as Probate Justice. We have no doubt it was competent to prove he was such Justice by parol, when the question arose between third •persons, and that in such a case such proof is just as satisfactory as the Clerk’s certificate. The proof offered would have shown that he was an officer defacto, and as such his acts were as binding and valid, when the interests of third persons or the public were concerned, as if he had been an officer de jure. The People v. Collins, 7 Johns. 548; McIntyre v. Turney, 9 do. 135; Berryman v. Muse, 4 T. R. 366; Gilliam v. Reddick, Iredell, 355; Fowler v. Bebee, 9 Mass. 331; Lowell v. Flint, 20 Maine, (7 Shepley,) 404; and in this Court, Schlencker v. Risley, 3 Scam. 485. Had the question arisen directly in a suit against the Justice and his right to the office involved, the rule would have been different.

In this case, it may have been true that there was some defect in his title to the office, which would have rendered it impossible to procure the certificate showing that he was an officer, de jure. If that were so, a third party should not have been prejudiced by it. The case of Pritchett v. The People, 1 Gilm. 525, is precisely in point.' Whenever the acts of an officer de facto are valid and binding upon the parties, then from necessity, it must be sufficient to prove that he is such officer. Any other decision would destroy - the rule.

The Court erred in excluding the evidence offered to prove that Vernor was the acting Probate Justice of the Peace of Washington county, at the time he issued this letter'of appointment, for which reason the judgment must be reversed and the cause remanded.

Judgment reversed.

      Trumbull, J. having been of counsel in this case, took no part in its decision.


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    David A. Smith, surviving partner, &c. appellant, v. John P. Sinclair, appellee.

      •Appealfrom Greene.

    The assignee of a subsequent mortgage, seeking to redeem from a foreclosure under a prior mortgage to which he was not a party, is not bound to pay for improvements made upon the land by the purchaser under the decree of foreclosure after the filing of the bill to redeem.
    Improvements by a mortgagee in possession have sometimes been allowed and sometimes not, such allowance, however, being made to depend upon the particular circumstances of the case, and is considered rather as an exception to a general rule than the rule itself.
    Bill in Chancery, in the Greene Circuit Court, brought by the appellant against the appellee, and heard before the Hon. Samuel D. Lockwood, at the April term, 1848, when a decree was rendered in favor of the appellee for $483-76, for a conveyance, &c.
    The following is a history of the case:
    On the 27th of April, 1838, the father of the appellee mortgaged to John Caldwell the east half of the south-west quarter of section fifteen, in township ten north, of range eleven west, to secure the payment of $298-80. This mortgage was foreclosed, the mortgagor being the only party defendant, and the assignees of the mortgagee the only parties complainant. The appellee became the purchaser oí the mortgaged premises on the 10th of September, 1844, which were conveyed to him by the Commissioner. On the 10th of August, 1838, the father conveyed to his son (who was then under age,) voluntarily and fraudulently, the foregoing and other tracts of land.
    On the 22d of August, 1838, and for a consideration which had accrued some months before, the father made a note and mortgage to one Zachariah Jones for $600, conveying the tract of land before specified, and another tract of 80 acres. At the April term, 1844, of the Greene Circuit Court, in a suit of said Jones to the use of, &c. against the said father only, a decree of foreclosure of said mortgage was rendered, and in June, 1844, Hardin & Smith, as joint tenants and not tenants in common, became the purchasers of the same, which were conveyed to them. They, on the 12th of August, 1845, filed a bill to redeem the tract of land first above specified from the appellee, and to set aside the conveyance to him by his father, as far as it interfered with their rights under their said purchase in June, 1844. The appellee was served with a summons to answer on the 14th August, 1845, and filed his answer on the 17th of December, 1845, to which said Hardin & Smith filed a replication on the 1st of April, 1846. At the September term, 1846, leave of Court was obtained to amend the bill and afterwards Smith suggested the death of Hardin, and filed an amended bill, claiming an account from the appellee of the rents and profits while in possession of the tract of land first above described. He filed an answer to the amended bill denying the right of the claimant to have such account stated, denying the complainant’s right to redeem, and claiming that if the complainant had such right, the defendant was entitled to payment for valuable improvements made on the land.
    , At the September term, 1847, there was an interlocutory decree, referring to the Master a statement of account of what was due on the Caldwell note and] mortgage, the value of the rents and profits of the mortgaged land since the defendant was in possession of the same, and the permanent and valuable improvements he made on the same, and when they were respectively made, — the parties reserving the right to except to any report the Master might make in the premises. During the mext vacation, in the absence of the parties, on the 1st of November, 1847, he stated the account, allowing the defendant, amongst other items, $200 for draining, fencing and breaking twenty acres of the tract of land first above named, between the 1st of September, 1846, and the 1st of September, 1847-; the greater part in 1847. On the coming in of the Master’s report, at the April term, 1848, the complainant excepted to the allowance of the said item of $200, which exception- was disallowed and the complainant excepted to such disallowance of his said exception, :and the Court decreed that the complainant had a right to redeem, &c. and to have conveyed to him a certain tract of land fraudulently conveyed to defendant by his said father, &c.

      I). /i. Smith, pro se.

    The only error relied upon by the appellant is the disallowance of his exception'to the Master’s report, so far as regards the said item of $200 for, &c. as aforesaid.
    The doctrine involved in this assignment of error is discussed in 4 Kent’s Com. 167, and note, (6th ed.) and from the following cases there referred to: Moore v. Cable, 1 Johns. Ch. R. 385; Russell v. Blake, 2 Pick, 505; Dougherty v. McColgan, 6 Gill & Johns. 275.
    It is respectfully contended that allowance to a mortgagee, or his assignee, for permanent improvements made during the pendency of a suit to redeem, by one having right ■to redeem, is unprecedented and illegal.

      W. Thomas, for the appellee.
    The assignment of errors brings before the Court but one question, viz : was the sum of two hundred dollars properly allowed?
    In the case in 1 Johns. 385, the mortgagor recovered in ejectment, and made improvements not allowed upon bill to redeem in behalf of mortgagor; no foreclosure or sale, nor ■rents growing out of improvements. The defendant was a volunteer. In the case before the Court, there was a decree of foreclosure and of sale, possession was taken under that sale, improvements' made, and rents allowed upon the whole.
    In 2 Pick. 505, the action was brought on the 14th June, 1819, and the improvements made in the autumn of 1819, pending the action. There was no sale under the mortgage.
    Gill & Johns. 275. The general rule is not without exceptions ; that mortgagor is not entitled to compensation. Here the mortgage executed; reasons not applicable, &c. Bill to redeem was filed on the 12th of August, 1845, and claim to rent was asserted on the 22nd of September, 1847.
    There is a diversity of opinion upon questions of payment for improvements, &c. Lasting improvements in building have been allowed in England under peculiar circumstances, &c. 4 Kent, 166, &e.
    In Entree v. Graves, 1 Vernon, 138, there was a decree for lasting improvements. In Talbott v. Bradhill, Ibid. 183, there was the same decree.
    The case, stript of all unnecessary verbiage, amounts to this : The defendant held a mortgage as assignee ; without notice, actual or constructive of the existence of a junior mortgage, he obtains a decree of foreclosure, purchases property and enters into possession. After several years, the plaintiff brings a suit to redeem, but makes no claim for rents and profits on suggestion of possession, &c. After improvements are made, another bill is filed, bringing this matter before the Court, and though it is admitted by the shape of the record, that defendant should be paid for improvements before suit, yet not after.
   The Opinion of the Court was delivered by

Trumbull, J.

The only question in this case is, whether the assignee of a subsequent mortgage seeking to re,deem from a foreclosure under a prior mortgage to which he was not a party, is bound to pay for improvements made upon the land by the purchaser under the decree of foreclosure after the filing of the bill to redeem.

The Master in stating the accounts 'between the parties, allowed the appellee two hundred dollars for improvements made under such circumstances, and his report was approved by the Court.

This was clearly erroneous. After bill filed, the appellee had full notice of appellant’s intention to redeem, and if, under such circumstances, he went on to make improvements by clearing and reducing to cultivation a portion of the land, he acted as a volunteer, and it would be unjust to compel the appellant to pay for such improvements.

To allow for improvements made under such circumstances would be establishing a principle that would put it in the power of the mortgagee in possession in many instances, even after suit brought, to defeat the redemption altogether, by making improvements that the party entitled to redeem could never pay for.

The law will nof allow one person to make another his debtor in this way. New improvements made by a mortgagee in possession have sometimes been allowed and sometimes not. When allowed, the allowance is made to depend upon the particular circumstances of the case, and is considered rather as an exception to a general rule than the rule itself. 4 Kent’s Com._167, and note; 1 Johns. Ch. R. 387; 10 Paige, 49; 6 Gill and Johns. 275.

We know of no case nor have we been referred to any, where a party entitled to redeem has been charged with improvements made after suit brought to redeem.

In this case no complaint is made of the allowance for repairs and improvements made before complainant filed his bill.

The decree of the Circuit Court is reversed at the costs of the appellee and the cause remanded, with directions to have the accounts between the parties re-stated, so as to reject the claim of defendant for clearing and improving land since this suit v/as instituted, and also so as to disallow the increased rents and profits arising from the land in consequence of improvements made since that time.

Decree reversed.


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    John L. Mariner, appellant, v. Hirah Saunders, appellee.

      Appeal from Fulton.
    As a general rule, when a paper from its ownership, nature and objects, has a particular place of deposit, or where, from the evidence it is shown to have been in a particular place or in particular hands, then that place must be searched by the witness proving the loss with the utmost good faith, and as thoroughly and vigilantly as if, were it not found, its benefit would be lost; or, in the other case, the person into whose hands the paper has been traced, must be produced. The evidence must satisfy the Court that the paper is destroyed, or cannot be found.
    The highest and most satisfactory degree of secondary evidence is an office copy, or a certified copy of a deed from the recorder’s office, and when such certified transcript of the record of a deed is offered, the statute dispenses with the strict proof of the loss of the original, which is required by the Common Law, and the party is only required to satisfy the Court that it is not in his power to produce it, as where it is shown to be in the possession of the opposite party, who, upon proper notice, refuses to produce it.
    The certificate and acknowledgment of a deed from a feme covert to convey her own lands is as much an essential part of the execution of the deed as her seal and signature, and without it, the law presumes that it was obtained by fraud or coercion.
    The execution of a lost deed must be quite as strictly proved as if the deed were produced in Court.
    Ilf a subscribing witness to a deed reside out of the jurisdiction of the Court, he need not be produced.
    The best accessible evidence must be produced, whether it be of a primary, or of a secondary character.
    Ejectment, in the Fulton Circuit Court, brought by the appellee against the appellant, and heard at the March term, 2848, before the Hon. Norman H. Purple and a jury, when a verdict and judgment were rendered for the plaintiff below.
    So much of the evidence in the case as was material to the determination of the questions of law raised by counsel, will be found in the Opinion of the Court.

      R. S. Blackwell, and C. B. Lawrence, for the appellant.
    1. Where a party brings ejectment for land, averring that he is “seized in his own demesne as of fee,” he makes an affirmative allegation which he must prove upon the trial by the highest and best evidence in his possession or power. 2 Greenl. Ev. 251, § 303.

      It is an established rule of the Common Law, that no estate of.freehold can pass but by deed. Jackson v. Wood, 12 Johns. 73; Rev. Stat. 102, § 1.
    Therefore the best evidence in support of his allegation of seizin in fee, is deeds and other documentary evidence of title. These are always presumed to be in his possession or power, and can be easily produced. Moson v. Park, 3 Scam. 533, 4; Jackson v. Todd, 3 Johns. 303.
    If he withholds the better evidence, the law presumes that if produced, it would make against the plaintiff. 1 Greenl. Ev. 97, § 82; Tayloe v. Riggs, 1 Peters, 595.
    But where such evidence is shown to be unattainable, the presumption of fraud ceases, and secondary evidence is admitted of necessity. U. S. v. Doebler, 1 Baldwin, 521.

      Proof of the existence or due execution, and loss of title papers, is sufficient to lay the foundation for the introduction of Secondary evidence. 1 Greenl. Ev. 623, § 558.
    This evidence is addressed to the Court, who are to determine as to its sufficiency. Jackson v. Frier, 16 Johns. 193.
    The loss bf the instrument is usually proved by circumstantial evidence, direct evidence being but seldom attainable. Taunton Bank v. Richardson, 5 Pick. 442.
    The circumstances usually relied upon to establish the loss of the instrument, is diligent search in those places where it would most likely be found, and such is the character of the evidence introduced and relied upon in the trial oc the case at bar. Palmer v. Logan, 3 Scam. 56; Rogers v Miller, 4 do. 334.
    Is the evidence offered in this case sufficient to establish tl e loss of the deeds P Unless it is, the Court below erred in permitting evidence of their execution and contents to go to the jury. Rees v. Lawless, 4 Littell, 219; Jackson v. Frier, 16 Johns. 193.
    Where there are suspicious circumstances', the Courts are more strict in requiring proof of loss. Renner v. Bank of Colombia, 6 Peters Cond. R. 700; Minor v. Tillotson, 7 Peters, 99; 5 Eng. Com. Law R. 291.
    All places where the supposed deed would most probably . be found must be thoroughly searched. Jackson v. Hasbrouck, 12 Johns. 192; Dan v. Brown, 4 Cowen, 483.
    And all persons who would probably know anything about the lost instrument must be inquired of. Jackson v. Hasbrouck, 12 Johns. 192; 2 Eng. Com. Law R. 328.
    Presumption that deed is in hands of Walters’ executor or the guardian of Ruth Walters, because legally entitled to it. Kent v. Weld, 2 Fairf. 461.
    Hearsay evidence of loss is inadmissible. The King v. Inhabitants of Denio, 14 Eng. Com. Law R. 102; Chapin v. Taft, 18 Pick. 379; Dan v. Brown, 4 Cowen, 483; Angell v. Felton, 8 Johns. 149.
    The persons who made the search must be called. Taunton Bank v. Richardson, 5 Pick. 436; Jackson v. Cris, 11 Johns. 437.
    Where the instrument is traced to the hands of a particular person, he must be called and sworn to give an account ©f it. The King v. The Inhabitants of Castleton, 6 T. R. 236; 3 Johns. 300; Parkins v. Cobbett, 11 Eng. Com. Law R. 394; The King v. The Inhabitants of Denio, 14 do. 102; Jackson v. Hasbrouck, 12 Johns. 192; Woods v. Garrett, 11 New Hamp. 442; Poignaud v. Smith, 8 Pick. 278; The Governor v. Barkley, 4 Hawks, 20, cited in 2 U. S. Dig. 265, § 1410.
    2. The execution of the originals ought to have been proved, before evidence of their contents was admissible. Elmendorf v. Carmichael, 3 Littell, 479; Jackson v. Frier, 16 Johns. 196; 3 do. 300.
    The subscribing witnesses should have been produced to prove the execution of the lost deed. 1 Greenl. Ev. 636, ¡ § 569; ib. 643, § 576; Gillespie v. Osburn, 3 A. K. Marsh. 80; Whittemore v. Brooks, 1 Greenl. 57; Morgan v. Marshall, 7 J. J. Marsh. 317; Griffith v. Husten, 7 do. 387; Kelsey v. Hammer, 18 Conn. 317, 318; Gillis v. Smither, 3 Eng. Com. Law R. 460; Kimball v. Morrill, 4 Greenl. 370; 4 Cowen, 489.
    3. The next best evidence was a copy from the record, and should have been produced; the parol evidence was therefore inadmissible. Brewster v. Countryman, 12 Wend. 446; 2 Peters’ Dig. 222, §767; ib. 233, § 772; Cowan v. The State, 4 Blackf. 241; Rhind v. Wilkinson, 2 Taunt. 237; Hilts v. Colvin, 14 Johns. 182; 1 Greenl. Ev. § 84, note; Dunlap v. Berry, 4 Scam. 330; Renner v. Bank of Columbia, 5 Peters’ Cond. R. 700; United States v. Britton, 2 Mason, 464, cited in 5 Peters’ Cond. R. 261, note; Riggs v. Tayloe, 9 Wheat. 483; 5 Peters’ Cond. R. 647.
    4. The evidence of the contents of the lost deed was too vague and uncertain to warrant the jury in rendering a verdict for the appellee. United States v. Britton, 2 Mason, 464; 5 Peters’ Cond. R. 261; Tayloe v. Riggs, 1 Peters, 600.
    5. The declaration avers, and the verdict finds that appellee was seized in fee. The evidence does not disclose what interest he had in the premises, and the verdict is therefore clearly not warranted by the testimony.
    6. The plaintiff claims, and the verdict finds for him title to the whole tract of land. The evidence only shows his. title to an undivided moiety.
    The patentee conveyed to Mooney and wife. The law is well settled that a conveyance to husband and wife does not constitute them joint tenants or tenants in common; they constituting but one person in law, they cannot take by moieties, but both are seized of the entirety, the consequence of which is, that neither can alien without the consent of the other, and on the death of one, the estate survives to the other. 2 Black. Com. 182 ; Coke’s Litt. 187; Doe, ex dem. Freestone v. Parrott, 5 T. R. 652; Shaw v. Hersey, 5 Mass. 521; Fox v. Fletcher, 8 Mass. 274; Jackson v. Stevens, 16 Johns. 115; Sergeant v. Steinberger, 1-4 Ohio Cond. R. 372; Ross v. Garrison, 1 Dana, 35; Motley v. Whittemore, 2 Dev. & Bat. 537; Doe v. Howland, 8 Cowen, 277; Den v. Hardenburg, 5 Halst. 42.
    It nowhere appears in evidence that Mooney and wife executed and acknowledged the deed to Walters in due. form of law, and that she was of age at the time the deed was executed. This must appear or her interest does not pass. Territorial Laws, 1807, p. 97-8'; Elliott v. Piersoll, 1 Peters, 328; Hepburn v. Dubois, 12 Peters, 345; Lewis v. Waters, 3 Har. & McHen. 430; Payne v. Parker, 1 Fairf. 178; Rhea v. Rhenner, 1 Peters, 109.
    Q. £7. Browning Sr TV*. Bushnell, for the appellee.
   The Opinion of the Court was delivered by

Caton, J.

We are first to inquire whether the proof of the loss of the two deeds,.from McCoy to Mooney and wife, and from them to Walters, was sufficient to admit secondary evidence of their contents. The plaintiff swore that the deeds were never in his possession, although he had been in pursuit of them for four years; that he had searched in the Recorder’s office, where he was informed that one Gerald might have had them; on applying to Gerald he was informed that the deeds had been taken from the Recorder’s office by the agent of Walters, to take them to him in New York, and that the agent had died in Indiana on his way thither; that he had sent an agent to New York to obtain proof on another branch of the case, and to inquire of the guardian of Ruth Walters for these deeds, who was unable to find them. He then employed an agent in New York who wrote him that he had made a thorough search for the deeds, but without success. He made no personal examination except at the Recorder’s office. Bryant, the agent, swore that he went to New York and inquired of the guardian of Ruth for the deeds, who stated that he could not find them after diligent search. Upon this the Court admitted secondary evidence of their contents.

From the nature of the subject there is some difficulty in laying down a general rule, defining the extent and vigilance of the search which a party must make, before the Court may conclude that the paper is destroyed or lost, so as to admit secondary evidence of its contents. As a general rule, however, we may say, that when from the ownership, nature or objects of a paper, it has properly a particular place of deposit, or where from the evidence it is shown to have been in a particular place or in particular hands, then that place must he searched by the witness, proving the loss, or the person produced into whose hands it has been tracep. The extent of the search to be made in such place or by such person, must depend in a great degree upon circumstances. Ordinarily, it is not sufficient that the paper is not found in its usual place of deposit, but all the papers in the office or place should be examined. But this need not always be done, when from the extent of the archives or office, it would be impracticable, and the order in which it is kept a more limited examination is equally satisfactory. In all cases the search must be made with the utmost good faith, and should be as thorough and vigilant, as, if the paper were not found, its benefit would be lost. On the whole, the Court must be satisfied that the paper is destroyed, or cannot be found. It is true, the party need not search every possible place where it might be, for then the search might be interminable; but he must search every place where there is a reasonable probability that it may be found. Nor must he produce every man upon the stand, into whose hands rumor alone may have traced it, for if the inquiry is only suggested by hearsay, it may be answered by hearsay. If, on the other hand, legal testimony shows it to have been in a particular place, or if the natural and legitimate presumption is that it is in certain hands, then it must be proved by legal evidence that it is not there.

We are aware that some cases may be found which seem to tolerate looser practice; but so far from establishing a general rule, they serve to admonish us of the danger of departing from well established legal rules, wdth the hope of meeting justice in a particular case.

In the case of Minor v. Tillotson, 7 Peters, 99, the party having first proved that the original grant was once in the possession of Gen. Wade Hampton, showed that his attorney had applied to him for it, who gave him a bundle of papers stating that they were all the titles of his (Hanna’s) lands in his possession; but the lost paper was not among them. The Court say: “The examination was made by the witness under all the advantages and prospects of finding the deed, that could have been afforded to Hampton himself. He was for this purpose in possession of all his papers, and not finding it, the inference was very strong that it was lost.

In determinining this, as any other question, the Court must act upon facts established by legal proof. How was it in this case? The paper had been in Gen. Hampton’s possession, when last heard of. He handed a bundle of papers to the plaintiff’s attorney, stating that they were all the title papers which he had relating to the property in question, among whicli the missing paper was not found. It would be difficult to assign any legal reason why Gen, Hampton’s bare word should be taken to establish a fact in a Court of Justice, when every other fact must be sworn to by a competent witness. With the same propriety might it have been shown that the lost paper was not in that bundle, by proving that the plaintiff’s attorney had said so. The fact admitted upon the hearsay of Hampton was as material as that established by the testimony of the attorney; and if one might be admitted upon hearsay, so might the other. And with the same propriety might all other facts have been proved in the same way. Had Hampton been in Court, his bare word would hardly have been taken. Nor, had the statement been sworn to, would it have been deemed sufficient without ascertaining that he had examined his other papers with particular reference to the one lost. It seems to us that the case shows a departure from the well established rules of evidence.

A reference to a few of the many cases, holding the law as we understand it on this subject, will be sufficient. In Parkins v. Cobbett, 11 Eng. Com. Law R. 394, the Court said: “You must, in all cases, give the best evidence of the loss of the original writing that the case admits.” Again: “But here it is traced to the defendant’s daughter, and therefore she must be called; and if she is not, secondary evidence cannot be given of the contents.” In Chapin v. Taft, 18 Pick. 379, the plaintiff swore that another who had had the letter told him it was lost, was held insufficient. The case of Woods v. Gassett, 11 New Hamp. 242, is equally in point. and then the Court quote with approbation what is said in 1 Phil. Ev. 456, where the rule is stated without qualification. And in Taunton Bank v. Richardson, 5 Pick. 436, the Court refused to admit secondary evidence of the contents of a letter, where the cashier who was sworn, could not say positively whether it was directed to him or one of the directors, who had said he had searched for it in vain. The witness suggested that it was probably destroyed by a fire. The Court said, as it might have been directed to the other, he should have been called.

Indeed, the general rule is too well settled to admit of discussion, although, after all, the Court must be vested with a Certain discretion, depending upon the peculiar circumstances of each particular case. If there is the least suspicion of fraud or design to be gathered from any part of the testimony, the Court cannot be too strict in the testimony required, especially as the party himself is a competent witness to prove the loss of the paper; and even where the utmost good faith is manifested, the search should be vigilant and thorough.

Testing this case by the law, as understood by us, we are satisfied that no sufficient foundation was laid to admit secondary evidence of the contents of these deeds, and especially of that from Mooney to Walters. Without saying whether the statement of the plaintiff that he had searched the Recorder’s office was sufficient to dispense with calling the Recorder, there can be no doubt that the executor, or other person having the custody of Walters’ papers since his death, should have been examined. This was not done. All we know is, that the guardian of Ruth Walters, who was the heir of the grantee, told Bryant that he could not find them after diligent search, and the hearsay of Madison that he had made extensive and unavailing inquiries. This is nothing but hearsay, and hence inadmissible to prove the loss of the deed to Walters. The same may be said of the deed from McCoy to Mooney, although as to that deed, the objection was obviated by the testimony of Mooney, when he was sworn in chief.

We will next inquire whether the execution of these deeds was sufficiently proved, for the execution of a lost deed must he quite as strictly proved as if the deed were produced in Court. It appears from the plaintiff’s testimony, that each of these deeds was attested by two subscribing witnesses, '■ all of whom resided in New York. This was sufficient to dispense with the production of the subscribing witnesses. But afterwards, when Mooney came to testify, while he corroborated the statement of the plaintiff as to the number and names of the subscribing witnesses, he shows that one of the witnesses to the deed from McCoy to himself and wife, resided in Quincy, which was within the jurisdiction of the Court. This destroyed the foundation upon which the Court had properly admitted the secondary evidence of the execution of that deed, which should then have been withdrawn from the jury, and the production of the witness required. 3 Littell, 479.

It is unnecessary to say whether Mooney was a competent witness to prove the execution of the deed by himself to Walters, without accounting for the absence of the subscribing witnesses, for both were proved to have been without the jurisdiction of the Court. But we have no doubt that under no circumstances was it competent for him to prove-the execution of the deed by his wife. As well might ¡a justice of the peace, or other officer, take the acknowledgment of his own wife to the execution of a deed where it has to be taken in the absence of the husband.

Nor do we think the contents of these deeds properly proved, admitting their loss and execution to have been established. The position assuméd by the counsel for the appellee, that there are no grades or degrees in secondary evidence, cannot be sustained upon principle or-by authority; although Park, J. in Brown v. Woodman, 25 Eng. Com. Law R., 358, is reported to have said, on a trial at JVisi Prius: “ There are no degrees in secondary evidence. If there had been a duplicate original, it might have been different. ” There are other cases from which we might infer that this rule was understood to prevail, but this is the only case which we have met with where it appears to have been expressly decided. The books, however, abound with decisions, expressly holding that the best accessible evidence must be produced, whether it be of a primary or of a secondary character.

In Riggs v. Tayloe, 5 Peters’ Cond. R., 646, the Court said that the party, after showing the loss of the original, “may read a counterpart, or if there is no counterpart, an examined copy, or if there should not be an examined copy, he may give parol evidence of the contents. ” And in the same book, (p. 691) the Court said : “Proof of the contents of a lost paper ought to be the best the party has in his power to procure, and, at all events, such as to leave no reasonable doubt as to the substantial parts of the paper. ” The same rule as in the two preceding cases is held in 2 Mason, 464, and the Court said, that “ when the proof is made out by parol, the witness should have seen and read the paper, and be able to speak pointedly and clearly as to its tenor and contents. ” Nor is it necessary, in all cases, that the proof should show affirmatively that there is such counterpart or copy, in order to exclude the parol proof; but the Court will often presume, from the nature and character of the paper, that one exists ; as in the case of Rhind v. Wilkinson, 2 Taunton, 237, speaking of the proof of the contents of a lost licence, the Court said: “ If the licence were under the sign manual, there was doubtless some register of it somewhere preserved; it was highly probable that Price had a copy, and, therefore, the Court could not say that the parol evidence was the best evidence that could be obtained, and the rule for a nonsuit must consequently be made. ” Hilts v. Colvin, 14 Johns. 182, affords another example where a similar presumption prevailed.

There is no case where the reason of the rule, that the best attainable evidence should be produced, applies with more force than in the proof of the contents of lost papers, nor is there any case where parol proof is more unsatisfactory or more likely to do injustice. Rarely, if ever, can a witness recollect the precise terms of a paper, or give more than his general impression of the substance from the perusal, when many important particulars may not have attracted his attention, and must, almost necessarily, have escaped his recollection. The highest and most satisfactory degree of secondary evidence is an office copy, as a certified copy of a deed from the Recorder’s office, — unless an exemplification of the record of a judgment, a Patent or a grant, which may be used, although the original be in Court, be considered secondary evidence — and when such certified transcript of the record of a deed is offered, our statute has dispensed with the strict proof of the loss of the original, which is required by the Common Law, and the party is only required to satisfy the Court that it is not in his power to produce it. It may be remarked, however, that this strictness of the proof of the contents of a paper is not required, where the original is shown to be in possession of the opposite party, who, upon proper notice, refuses to produce it 5 for the® every intendment, and indulgence must be taken against him who, by the production of the original, could remove all doubt.

In this case it did appear pretty satisfactorily, that better evidence could have been produced of the contents of these ’deeds, than the recollection of Mooney. Before this class of secondary evidence was resorted to, the plaintiff offered a certified transcript of the record of these deeds from the Recorder’s office, for the purpose of proving not only the contents but the execution of the orig-inals, which were ruled out, because the record did not show that they were properly acknowledged or proved. While these were not proper evidence for the jury, they still served to inform the Court that it was probably within the power of the party to have procured sworn copies of the deeds, after having proved their execution in some legal way. The danger of this parol evidence is illustrated in this very case, for the plaintiff swore that he claimed under deeds of which these papers were copies, and Mooney’s recollection makes both deeds good and operative, while the copy of one shows, at least without some more explanation than we have, that it was void for uncertainty. We are of opinion, that the plaintiff ought to have been required to produce sworn copies or show that the person who copied them into the Recorder’s books was dead or could not be produced, before allowing Mooney to speak of their contents.

But admitting everything proved that was insisted upon, .still the deed from Mooney and wife to Walters conveyed no sort of interest whatever to the grantee. The evidence showed that the deed from McCo3>- was to Mooney and wife, who thereby became neither joint tenants, nor tenants in common, but tenants of the entirety. In 2 Black. Com. 182, it is said : “If an estate in fee be given to a man and his wife, they are neither properly joint tenants nor tenants in common; for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seized of the entirety per lout et non per my, the consequence of which is, that neither husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.” The same rule is laid down in Coke’s Lit. 187; Tho’s Coke, 575. Where an estate was conveyed to husband and wife and daughter, it was held that the parents took one moiety as tenants of the entirety of the undivided moiety and the daughter the other. Bock v. Andrews, 2 Vern. 120; See also, 5 T. R. 652. In Ross v. Garrison, 1 Dana, 35, the rule was held as stated in Blackstone, and it was also held that the statute jus accrescejxdi did not apply, but the survivor took the whole estate. The case of Jackson v. Stevens, 16 Johns. 115, is precisely like the foregoing in every particular. In that case the Court say: “The statutory provision that no estate in lands shall be held or claimed under any grant, devise or conveyance unless the premises therein mentioned shall expressly be declared to pass, not in tenancy in common but in joint tenancy, does not extend to .this case, for the estate of the husband and wife is not a joint tenancy. More references would be unnecessary. It is apparent, then, that as Mooney and wife were tenants of the entirety, Mooney alone could convey no interest whatever in the estate to Walters, the ancestor of the plaintiff’s grantor. This brings us to the inquiry, whether the case shows that Mooney’s wife was a party to that deed, or in other words, whether as to her it ever took effect, for if it did not as to her, it could not as to her husband.

By the eleventh section of an Act of the Territorial Legislature, passed Sept. 17th, 1807, and by an amendment thereto, passed in 1813, the manner and before whom, a deed purporting to convey the estate of the wife shall be acknowledged by her is prescribed, and deeds thus acknowledged and certified are declared to be good and effectual as if the wife were sole. These statutes were in force at the time this deed purports to have been executed, and there is no pretence that there was any such certificate of acknowledgment as the law required. Without such acknowledgment the deed was absolutely void, and had no more vitality than a piece and of blank paper. Only by virtue of such acknowledgment certificate could the deed become operative. Its execution could be proved in no other possible way, and in no other way could she convey. The certificate of acknowledgment of a deed from a feme covert to convey her own lands is as much an essential part of the execution of the deed, as her seal or signature, and without it the law presumes that it was obtained by fraud or coercion. Jihis deed then being void as to the wife could convey no part of, or interest in the estate, she being entitled to the whole estate as survivor on the death of her husband. Whether this deed was so well executed by the husband, as to take effect and relate hack to the time of its execution, in case he survives his wife, we will not now undertake to say.

There are some other questions of minor importance pre« sented by this record which we deem it unnecessary to notice. The questions, however, which we have examined, being important, and new in this Court, and directly presented by the record, we have felt it our duty to settle them now.

The judgment of the Circuit Court is reversed and th© cause remanded for another trial.

Judgment reversed.


author: Treat, J.

text:
    Ambrose P. Edwards et ux., plaintiffs in error, v. William Patterson, survivor, &c., defendants in error.

      Error to Mason.

    Affidavits and other papers copied into a record do not thereby become a part of the record. To make them evidence, they should be incorporated in a bill of exceptions.
    Motion, in the Mason Circuit Court, to quash an execution and to set aside a sale thereon, because there was no seal on the execution. The cause came on for a hearing before the Hon. Samuel D. Lockwood, when the plaintiff in the execution entered a cross motion for leave to amend. At the May term, 1846, the latter motion was overruled, and the former allowed, quashing the execution and vacating the sale.

      M. Me Connell, for the plaintiff in error.

      M. Brayman, for the defendant in error.
   The Opinion of the Court was delivered by

Treat, J.

The Circuit Court refused a motion made by the plaintiffs in error to amend an execution ; and then, at the instance of the other party, quashed the execution and set aside a sale made under it. The evidence on which the Court acted is not in the record. We cannot, therefore, inquire into the propriety of its decision. The Clerk has copied an affidavit and some other papers, but they are not thereby made a part of the record. A bill of exceptions should have been taken embodying the evidence. Corey v. Russell, 3 Gilm. 366.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


text:
    Charles Peck, administrator of James W. Stephenson, plaintiff in error, v. Isaac P. Stevens et al., defendants in error.

      Error to Jo Daviess County Court.

    In a suit against an administrator, a judgment was rendered, and an award of execution against the goods, chattels, lands and tenements of the decedent in the hands of the administrator to be administered: Held, that the award of execution was erroneous.
    The Supreme Court, on reversing a judgment, may render such a judgment as should have been rendered by the Circuit Court.
    In this case, a judgment was rendered in the Jo Daviess County Court, at the November term, 1846, the Hon. Hugh T» Dickey presiding, in favor of the present defendants in error, for the sum of $6,321*34 upon the assessment of a jury of inquiry, the defendant not appearing. The form of the judgment concluded with an award of execution, thus ; “And that execution issue therefor against the goods, chattels, lands and tenements of the said Jas. W. Stephenson, deceased, in the hands of the said administrator to be administered,”

      T. Ford, for the plaintiff in error»

      V. H. Higgins, for the defendants in error.
    If there be error in this record, the Court will enter such judgment as the Court below should have entered. The 49th section of the Practice Act provides that the Supreme Court may enter final judgment, arid the 52nd section provides that the Supreme Court, in case of partial reversal, should give such judgment as the inferior Court ought to have given, and such has been the uniform practice of this Court. Pearson v. Hamilton, 1 Scam. 416; McConnell v. Swailes, 2 do. 572; Wilmans v. The Bank of Illinois, 1 Gilm. 670; Welch v. Wallace, 3 do. 496.
    If the judgment is erroneous, on the authority of the foregoing cases, this Court will enter judgment here for the defendants in error for $6,321-34 and interest, to be paid in the due course of administration.
   The Opinion of the Court was delivered by

Treat, C. J.

The Court rendered a judgment in favor of Stevens and Brown against Peck, administrator of Stephenson, for $6,321-34 and costs; and awarded execution therefor against the goods and chattels, lands and tenements of the estate of the decedent.

The award of execution was erroneous, as will clearly appear by reference to the decisions of this Court in the following cases: Greenwood v. Spiller, 2 Scam. 502; Burnap v. Dennis, 3 do. 478; McDowell v. Wight, 4 do. 403; Powell v. Kettelle, 1 Gilm. 491; Welch v. Wallace, 3 do. 490.

The judgment of the County Court will, therefore, be reversed with the costs of this writ of error, and a judgment will be entered in this Court in favor of the plaintiffs against the defendant for the sum of $6,321-34 and the costs in the Court below, and interest from the 29th of July, 1846, to b© paid in the due course of administration.

Judgment reversed.


text:
    Edward Fuqua et al., plaintiffs in error, v. David Robinson, defendant in error.

      Error to Warren.

    In a bill in Chancery for an injunction to stay proceedings upon a judgment at law, a payment of two specified sums thereon was alleged, one of which was admitted, and the other denied by the answer and not pioved. Both sums were decreed by the Circuit Court to be credited upon the judgment: Helá, that the decree was erroneous as to the latter sum.
    Bill for an injunction, &c., in the Warren Circuit Court, brought by the defendant in error against the plaintiffs in error, and heard before the Hon. Norman H. Purple. A decree was entered at the November term, 1846, allowing certain credits upon the judgment enjoined, &c. The defendants below prosecuted a writ of error thereon.
    .The defendant in this Court having neglected to comply with a rule requiring him to join in the errors assigned, the cause was argued ex parte by J. Manning for the plaintiffs in error.
   The Opinion of the Court was delivered by

Treat, C. J.

This case is 'free from difficulty. The bill alleges a payment of forty five dollars and forty cents on ■the judgment, on the ninth of June, 1842,-and a further payment of two hundred and fifty one dollars and fifty six cents, on the seventeenth of July, 1844. The first allegation is admitted by the answer; the second is positively denied. There is no proof in the case sustaining the charge of payment. The Circuit Court decreed that the judgment should be credited with both amounts. The decree was erroneous as respects the larger sum. It will be reversed, and the proper decree entered in this Court.

The following order and decree were entered accordingly: • This day came again the plaintiffs in error by their attorney, and the Court being now sufficiently advised in the premises, is of the opinion that in the record and proceedings had in this cause in the Circuit Court there is manifest error; it is therefore ordered and adjudged that the decree of the Circuit Court be reversed, and wholly for nothing esteemed; and this Court proceeding to render such decree as should have been entered by the Circuit Court, it is ordered and decreed, that the judgment in the pleadings in this cause mentioned in favor of Edward Fuqua, and against David Robinson and Matthew J. Cox, be credited with the sum of forty five dollars and forty cents, as of the ninth day of June, 1842; it is further ordered and decreed, that the • levy made by virtue of the execution issued on said judgment, on the fifth day of December, 1843, be set aside and for nought held, and that execution issue on said judgment for the balance due thereon. It is further ordered and decreed, that the defendant in error pay one half of the costs in the Circuit Court; and that the plaintiffs in error pay the remaining half thereof. It is- further ordered and decreed, that the plaintiffs in error recover of the defendant in error their costs in this behalf in this Court expended, and that they have execution therefor.