text:
    The Board of Trustees of the Illinois and Michigan Canal Pltffs in Error v. The People, ex relatione, John V. A. Hoes and others, Defts in Error.
    ERROR TO LA SALLE.
    An alternative mandamus becomes the foundation of all subsequent proceedings, and must show on its face a clear right to the relief demanded, by setting forth all the material facts, so that they may be admitted or traversed.
    The usual mode of taking advantage of a defective alternative mandamus, is by motion to quash. This may be the only mode of reaching mere formal defects. Objections to substantial defects may be raised at any time.
    This was a proceeding for a mandamus, commenced in the La Salle Circuit Court, by Hoes and others, to"enforce the construction of a bride over the Illinois and Michigan Canal. At the March term, 1849, T. L. Dickey, Judge, presiding, Hoes, on behalf of himself and others, filed an affidavit, stating that a public road, leading from the town of Ottawa, in said county of La Salle, leading across the canal, had been laid out and established by'the County Commissioners, in March, 1835, which road" was intersected by the canal, and had been used as a public highway since 1835, until it was obstructed by the opening of the canal in 1848. That a certain State road, authorised by an act of the Legislature of 1845, was laid out in that year, which was also obstructed by the canal at the same point. Also, that another road leading from Ottawa, which had been used and traveled since 1832, was also obstructed by the opening of the canal; all these roads were on section 10, T. 33 N., E. 3 east of 3d P. M. That an application had been made to the Canal Trustees, to remove the obstruction by the erection of a suitable bridge, which the trustees had neglected and refused to build. This affidavit was accompanied by exhibits, showing the laying out of said roads by the proper authorities. The Circuit Court thereupon directed that an alternative writ of mandamus should issue to the Canal Trustees, commanding them to construct a bridge, or show cause to the contrary, at the next term of the court.
    A writ was issued in the form as set out in the opinion of the court, on the seventh of May, 1849, which was served on the trustees, by copy. At the special term of the Circuit Court, in July, following, it was ordered, that a peremptory writ of mandamus issue, requiring and commanding the trustees to erect the bridge.
    The Canal Trustees sued out a writ of error, and brought the cause before this court, at Ottawa, but by consent of parties, the cause was continued to Springfield, for hearing and judgment.
    The errors assigned, state that there was no proper case or facts shown in the pleadings, which authorized the issuing of the writ. That the peremptory mandamus improperly emanated, and that the alternative was improperly served and was substantially defective.
    E. S. Blackwell, and I. 1ST. Arnold, for Pltffs in Error.
    The Canal Trustees, are not bound to erect the bridge in controversy, because no such duty is imposed upon them by law.
    At common law. Counties were bound to erect and repair bridges. And no person or corporation is compelled to build or repair them, unless by force of some statute, or in cases of tenure or prescription. 1 Bacon Abr., 533 & 534, Tit. Bridges; 1 Burns’ Justice, 250, citing 22 Hen. 8, c. 5; 3 Com. Dig., 34, Tit. Chimin, (B 1); Queen v. Inhab. of the Co. of Wells, 6 Mod. R. 307, case 400; Regina v. Justices of St. Peters, in York, 2 Ld. Raym. 1251; The King v. W. R. of York, 7 East Rep., 588; The King v. Inhab. of Bucks., 12 East, 192; see also 5 Bur. R., 2594, 13 East E. 220.
    This rule recognized in this country. 17 Johns., 452; 7 Wend., 477; 2 Comstock, 169, 170; also 2 N. H., 513.
    Same rule incorporated in our statutes. Territorial Laws, 1807, page 300, §15; Laws, 1819, page 301, §2; Eyman v. People, 1 Gilman, 7, 8, see also Pope’s stat., 1815, page 640, §15; Laws, 1835-6, page 207, §2; Rev. Stat. 1845, pages 482, 485, & 488, §15, 23, & 37. English Parliaments recognize Com. Law rule by requiring Canal and Railway Co’s to restore easements. 45 E. C. L. 161; 10 M. & W., 263, see also 13 East., 220; 16 East., 305; 6 M. & W., 699. Same provision in Union Canal Co., Pa. Union Canal v. Pinegrove, 6 W. & S. 560 cited, 1 Sup. U. S. Dig., 362, §24. Same provision in Erie Canal Bill. 20 Johns., 742, see also 3 Hill, 569; 25 Wend., 462. So in Massachusetts, 3 Mass., 263 ; 7 Metcalf, 70. And Hew Jersey. 1 Spencer, 324. And Connecticut. 4 Day, 208. Legislature of this State also, Laws, 1818, page 45, §4; page 119, §5 ; Private Acts, 1827, p. 27, §1; Private Acts, 1833, p. 81, §11; Wabash and Miss. Railroad Co., Laws, 1835-6, p. 42, §17; (Same session with Canal bill,) p. 145 ; Similar Charters in Laws of 1834, 1835, & 1836-7. Also in the only two Canal Acts ever passed. Beardstown and Sangamon Canal Co., Laws, 1835-6, p. 100, §10. Same session, Eock River Rapids Canal Co., Laws, 1845, p. 237, §4.
    Where provision is omitted, the charge is upon the Counties. King v. Inhabitants of Berkshire, 2 East, 342; Walesbury v. Clark, 4 Day, 208; City of Lowell v. Proprietors of Locks and Canals, &c., 7 Metcalf, 1; answer case in 1 Gill., 222; Kyle v. Auburn & Rochester R. R. Co., 2 Barbour, Ch. Rep., 489. This principle recognized. Laws, 1845, p. 90, §21.
    County of La Salle benefited by the Canal and ought to bear the charge. The right of way for the construction of the Canal was granted prior to the establishment of the roads obstructed, and the County is bound to erect the bridges. 3 U. S. Stat. at large, 659; 3 Story’s Laws, 1833 & 2062; 4 ibid, 234, c. 51; 4 ibid] 4 ibid, 662, c. 87.

      County Court no power to lay out a highway under such circumstances. Barbour v. Andover, 8 N. H. R., 398; Laws, 1835, p. 138, § 32.
    This grant accepted by Illinois Legis. Laws, 1829, p. 17, §10. Presumption in favor of Location and Survey. Laws, 1829, p. 15, §5; 8 Humph., 110. Right of way reserved by State. Laws, 1831, p. 43, §11; Laws, 1837, p. 42, §10; Reserved by Act of Congress, 13 Pet., 513.
    The survey, location, construction, and completion of Canal, worked an extinguishment or discontinuance of the Highways in controversy. Power of the Legislature adequate. 6 How. U. S. Rep., 507; 11 Verm., 198; 4<Pick., 463; 2 Peters., 245; 4 Humph., 315 ; 2 H. H. 24-5; 10 Eng. 0. L., 413.
    Roads have been repeatedly discontinued in this State by Legislature and County Courts. Ample power in Canal Trustees to discontinue. Laws, 1829, p. 17, §10; Laws, 1831, p. 43, §11; Laws, 1835, p. 225, §21 & 22; Laws, 1836, p. 148, §21 & 22. Trustees have same power. Laws, 1842, p. 56, §10; Laws, 1845, p. 31, §1. These Laws to be liberally construed. 4 Blaclcf., 505; 17 Conn. 46-23; 23 Pick., 49; 9 Metcalf, 553.
    The location, survey, and completion of Canal worked a discontinuance. 11 Verm., 198; 17 Conn., 463; 14 Pick., 279, 280; 12 Peters., 97. Hot sufficient facts shown in mandamus to justify the judgment awarding peremptory writ. 7 East., 345; 5 Eng. C. L. R., 266; 10 "Wend., 26; 25 Maine, 333; 51 Eng. C. L. R., 898. It does not show a legal Highway. User interrupted by State in surveying and constructing canal. Road of 1835, no width given. Laws, 1835, p. 131, §9 ; 5 Blackf., 462, 1-4 Ohio, 613; Laws, 184-5, p. 89, §21. Liability of Canal Trustees not shown. 3 Iredell, 411; 1 Hawkins, P. C., 705; 4 Iredell, 16; 1 Harrison, 222; 1 Green, 314; 5 Burr., 2700; 3 Chitty C. Law, 594-5. Does not show a fund provided by law for the erection. 1 Gilm., 570-1; 7 Mass., 187-8; 7 Wend,. 476-7; 1-4 Ohio Cond., 268; 6-7 Ohio Cond., 192. Precise place where bridge to be erected not designated. County of La Salle ought to have been relators. 25 Maine, 291; 16 Pick., 105-6; 11 HI., 202 ; 19 Wend., 56. Mandamus will not lie, right not legal. 12 John., 414; 19 AVend., 65; 5 Wend., 122; 9 S& M., 90. The rule is different where a way is obstructed by a private Corporation. Trenton Water Power Co., 1 Spencer, 659; Leopold v. C. & O. Canal Co., 1 Gill 222; King v. Inhabitants of Lindsey, 14 East, 317.
    N. H. Purple & J. V. A. Hoes, for Defts in Error.
    It is doubted whether a party in contempt is entitled to a writ of error. Mandamus is proper where the law has established no specific remedy, and where in justice and good government there ought to be one. Bacon’s Ab., 418 ; 1 Cowen, 423. The highway is a public easement, the legal right vesting in the people, and any one may enforce and obtain a mandamus in such a matter. People ex rel. Case et al. v. Collins. 19 Wend., 64. In the case at bar, mandamus is the proper and appropriate remedy. 19 Wend., 56. The Canal Trustees had no right in cutting their canal across this highway, utterly to destroy it; and are bound to unite, for the public accommodation, the highway thereby divided, by a reasonably convenient thoroughfare over or under their canal. Leopold v. Chesapeake & Ohio Canal Co. 1 Gill, 222. The case of Leopold v. Chesapeake & Ohio Canal Company, 1 Gill, 229, was decided upon the Charter granted by State of Maryland, in 1823. See Laws Maryland, 1823, p. 85. This law contains no provision requiring Company to build Bridges.
    The road laws of this State in force at the time of authorizing the construction of this canal, and those passed since, point out the method of vacating roads, and prohibit the obstruction of those established by “ placing any obstruction therein,” or “digging any ditch across the same.” Laws, 1835, §2, 8. This is in reply to the reference on the other side. To the laws authorizing the Companies to take “lands, &c.” The ditch is as good as those laws.
    The Legislature did not intend, in authorizing the construction and its numerous feeders, to repeal the Road Laws, or authorize the entire destruction of the numerous highways which must necessarily be crossed by them or they would have provided some remedy. Nor could they have intended to have imposed the heavy burthen of uniting the several highways thus divided, upon the people of the counties or districts in which they may chance to be. Th,e most the Legislature could have intended was to so far modify the Road Laws as to authorize the canal to intersect the roads; the public to be accommodated by a passage way over or under the canal to be provided by the canal authorities.

      That the Canal Trustees understood the law as requiring the erection of bridges by them, is a matter of public notoriety deemed proper to be referred to in presenting the case to the court. They have constructed bridges at nearly every point where the canal or its feeders intersect a highway, and are now maintaining them at the cost of the canal fund. Will the court discharge them from either building others where they have refused or neglected to build them, and where highways have been regularly established, and where the public accommodation requires them.
    The writ in this case is not substantially defective. The case referred to on the other side, (10 Wend., 25,) does not sustain the position that it is assumed to. The writ in this case contains all that is material. The command to do the particular thing required to be done, and the reason why “ the canal at that point obstructing the public highway," no reference to affidavits on file to help it out as in the case referred to. But admitting the writ to be defective, as is alleged. The parties have appeared, if that is necessary, it does not appear to be, and the peremptory writ has been awarded, and it is therefore now too late to take exception to the writ. 10 Wend., 25.
    The only question now for the court to determine is, whether there was sufficient appearing upon the record, (10 Wend., 33,) to authorize the court to award the peremptory writ.
   Treat, C. J.

This was a proceeding by mandamus to compel the trustees of the Illinois and Michigan Canal, to erect a bridge over the canal in La Salle county. Upon a petition and accompanying papers, the Circuit Court directed an alternative mandamus to issue. The writ, after reciting the term of the Court and the names of the parties, proceeded to state, that the Court “did order that an alternative mandamus issue out of said Court, directed to and commanding the said trustees, that immediately upon the receipt of said writ, they cause a bridge of suitable dimensions to be built over the Illinois and Michigan Canal, at the centre east and west of section ten, township thirty-three north, of range three east of the third principal meridian, in said county, the said canal at that point obstructing a public highway; or that they show cause to the contrary, before our said Circuit Court. Mow, therefore, we, being willing that full and speedy justice be done in this behalf, as it is just, command you, the said Trustees, that immediately after the receipt of this writ, you cause the said bridge to be built, or that you show cause to the contrary,” &c. The writ was served on the Trustees, but they failed to make any return thereto, and the Court awarded a peremptory mandamus. The Trustees sued out a writ of error from this Court.

It is insisted, that the alternative mandamus is too defective to sustain the judgment. An alternative mandamus becomes the foundation of all the subsequent proceedings in the case. It answers the same purpose as the declaration in ordinary actions. It must show on its face a clear right to the relief demanded by the relator. He must distinctly set forth all the material facts on which he relies, so that the same may be admitted or traversed. The defendant is called upon to perform the particular act sought to be enforced, or, by a return, deny the facts alleged in the writ, or state other matters sufficient to defeat the relator’s application. He is not required to answer the petition on which the writ is ordered. This is the well established practice in the proceeding by mandamus. The King v. The Bishop of Oxford, 7 East, 345; The King v. The Margate Pier Company, 3 Barnewell & Alderson, 220; Clarke v. The Company of Proprietors, 6 Adolplus & Ellis, N. S., 898; The Commercial Bank v. The Canal Commissioners, 10 Wendell, 26; The State v. Jones, 1 Iredell, 129; Hoxie v. The County Commissioners, 25 Maine, 333; The People v. Ransom, 2 Comstock, 490.

In this case, the alternative mandamus is fatally defective. It does not set forth the facts on which the relators rely. It does not apprise the defendants of the grounds upon which the remedy is sought. They are not permitted to traverse a certain state of facts, or admit the same to be true, and set up new matter in avoidance. The writ simply commands them to perform a particular act, or furnish an excuse for not doing it. It is not sufficient to uphold the proceedings. The judgment has no basis on which to stand.

The usual mode of taking advantage of a defective alternative mandamus, is by motion to quash. And that may be the only mode of reaching mere formal defects. But objections to substantial defects may be raised at any stage of the proceedings. This is like the case of a writ of error brought to reverse a judgment entered on a declaration showing no cause of action; or of a conviction on an indictment that does not charge the commission of an offence. The proceedings fall for the want of a proper foundation to sustain them. The following cases are in point, if authorities are needed in support of so plain a proposition. In the case of The King v. Overseers of Mallett, 5 Modern, 421, the writ was held ill after return made. In The King v. The Margate Pier Company, supra, the defendants were allowed to take advantage of a material defect in the writ, after their return was made. In Clarke v. The Company of Proprietors, supra, it was held by the Court of Exchequer, that, on demurrer to a traverse of the return to an alternative mandamus, the defendant might impeach the validity of the writ. In the case of The Commercial Bank v. The Canal Commissioners, supra, a demurrer to the return was carried back and sustained to the writ.

It is not necessary to express an opinion on the question, whether the Trustees are bound to construct and maintain bridges across the canal.

The judgment must be reversed, with costs, against the relators.

Judgment reversed,.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Susan P. Enos et al., Pltffs in Error, v. Jabez Capps, Deft in Error.
    ERROR TO SANGAMON.
    Neither a default, nor a decree pro confesso, can be taken against an infant. A guardian ad litem should be appointed, who should file an answer, after which the complainant must make full proof, whether the answer filed, admits or denies the allegations of the bill.
    In chancery, as at law, a decree jointly binding on several defendants, so that each is liable for the whole, if reversed at all must be reversed as to all; but where a decree in form is joint, but is several in its effect, it may be reversed as to a part of the defendants.
    This was a bill in chancery filed by Capps against the plaintiffs in error and others. The bill charges that Capps had an equitable interest in certain lands, which Pascal P. Enos held as trustee for one Moore, and of which he died seized. That Moore and the heirs of Enos, are combining, &c., to deprive Capps of the land. P. P. Enos deceased, and left a widow and several children, who were all made parties.
    This writ of error is prosecuted by Susan P. Enos and Julia R. Enos, who are respectively under the age of twenty-one years, acting by Pascal P. Enos the younger, as their next friend.
    The decree sought to be reversed, was rendered by Ford, Judge, at September term, 1836.
    Lincoln & Herndon, for Pltifs in Error.
    S. T. Logan, for Deft in Error.
   Treat, C. J.

This was a suit in chancery brought in 1884, by Jabez Capps against John Moore, William S. Hamilton, Salome Enos, widow of Pascal P. Enos, deceased, and P. P. Enos, Z. A. Enos, M. M. Enos, S. P. Enos, and J. R. Enos, his heirs at law. The heirs were then all minors. The bill set up an equitable title in the complainant to a tract of land, of which Pascal P. Enos died seized; and it contained a prayer that the heirs might be required to convey the legal estate to the complainant. Process was served on all of the defendants except Z. A. Enós, S. P. Enos, and J. R. Enos. At the October term, 1835, Salome Enos ivas appointed guardian cccl litem for the infant defendants; and at the September term, 1836, the bill was taken for confessed against all of the defendants, and a decree entered requiring Salome Enos to convey to the complainant all of the interest of the heirs in the land. In 1847, a writ of error for the reversal of the decree was sued out in the name of all of the defendants. The complainant pleaded, that more than five years had elapsed between the entering of the decree, and the suing out of the writ of error; to which the defendants replied, that two of the heirs were still infants, and within the saving clause of the statute. This Court sustained a demurrer to the replication, and dismissed the writ of error. The decision was put on the ground, that, as any one or more of the defendants might under our statute have removed the case into the Supreme Court by appeal or writ of error, and as some of them had lost their right to do so by lapse of time, they should not be permitted to avail themselves of the non-age of their co-defendants, to accomplish indirectly what the law would not allow them to do directly. See 4 Gilman, 315. This writ of error is prosecuted by S. P, Enos and J. R Enos, who are still minors, and within the protection of the statute.

The decree was unquestionably erroneous. No answer was ever filed by the guardian ad litem, nor was any proof introduced to sustain the averments of the bill. Neither a default, nor a decree pro •confesso can be taken against an infant defendant. There must be a guardian ad litem appointed for him, and the guardian must file an answer; and the complainant must then make full proof of his right to the relief claimed. Even where the answer of the guardian admits the bill to be true, the complainant must prove the truth of its allegations with the same strictness, as if the answer had interposed a direct and positive denial. McClay v. Norris, 4 Gilman, 370; Hough v. Doyle, 8 Blackford, 300. The decree, then, as to the present plaintiffs in error cannot be sustained.

The only remaining question is, whether the decree must be wholly reversed, or only so much thereof as relates to the plaintiffs in error. At law, it is well settled that a judgment against several defendants cannot be reversed as to one, and affirmed as to the others. The judgment is ah entire thing, and must be affirmed or reversed in toto. It is jointly binding on all of the defendants. Each is individually liable for its full payment. Where the same reasons apjjly to a decree in chancery, the same rule must be held applicable. A joint decree against several defendants for the payment of a particular sum of money, is undoubtedly a decree of that character. In such case, each defendant is personally liable for the performance of the entire decree. He cannot discharge himself from responsibility, by the payment of his aliquot share. If erroneous, the decree must be wholly reversed at the instance of a party bound to perforin it. But the decree in the present case is not of such a character. The land in question descended to the heirs as tenants in common, On the death of their ancestor, each became seized of an undivided fifth part thereof. Although their title was derived from a common source, each held a several and distinct estate in the land, which he could dispose of without the assent,, or concurrence of the other tenants in common. Each could maintain ejectment for the recovery of his portion. He could alien the and thereby make his grantee a tenant in common with the other heirs. Under this decree he could release himself from all responsibility, by a conveyance of his interest to the complainant. He might thus, as respects himself, fully satisfy the decree; and at the same time leave it in full force and effect as to his co-defendants. The decree, although in form a joint decree against the heirs, is in fact but a several decree against each of them. It establishes no joint liability. It operates only on the separate estates of each of the heirs. There is no more difficulty in reversing this decree as to the plaintiffs in error, and leaving it in full operation against the defendants who are barred by the lapse of time from reversing it, than there is in reversing a distinct part of a decree, and affirming another portion having no necessary connection with the part reversed. In the opinion of the Court, the decree should only be reversed as to the plaintiffs in error. They cannot complain of such a course. Their interests will not in any manner be affected by a partial reversal of the decree. It will leave the complainant a tenant in common with them, in the place of the other heirs. To this they cannot object, for if the decree should be wholly reversed, the other heirs might immediately, and without their consent, put the cpmplainant in the same position, by a conveyance of their portions to him. This decision will be in strict conformity to the well established practice in cases of appeals from decrees in chancery—an appeal being the only mode, in the absence of statutory regulation, of reviewing proceedings in chancery before a superior tribunal. A party aggrieved by one part of a decree cannot, by appeal, call in question another part of the decree in which he is not interested, although the terms of the appeal may be broad enough to embrace it. Cuyler v. Moreland, 6 Paige, 273; Hoxie v. Van Shaick, 7 Paige, 221. Nor can a defendant, who does not join in an appeal, have the benefit thereof, even though the result of it may show that the decree was erroneous, as well against him as the appellant. 1 Barbour’s Oh. Prac., 395; 3 Daniel’s Oh. Prac., 124.

So much of the decree of the Circuit Court as relates to the plaintiffs in error is reversed, with costs.

Decree reversed.


text:
    Joshua W. Jones, Pltff in Error, v. The People, Defts in Error.
    ERROR TO SCOTT.
    In a trial for larceny, if the Court instruct that possession of property recently stolen, is ptima facie evidence of guilt, it is wrong to refuse an instruction, based up-en the hypothesis that the accused had fairly acquired the property by purchase.
    Jones was indicted for larceny at the Sept. Term, 1848, of the Green Circuit Court, and obtained a change of venue to Scott county. At the September Term, 1849, of the Scott Circuit Court, Jones was tried and convicted. After hearing a motion for a new trial, and overruling the same, the Court sentenced Jones to one year in the Penitentiary.
    Jones brings the cause to this Court, by writ of error.
    W. I. Eerg-usoh", and M. McCohnel, for PM in Error»
    D. B. Campbell, District Att’y, for the People.
   Treat, C. J.

The plaintiff in error was convicted' on ana indictment for larceny. On the trial, the Court, at the instance; of the prosecution, instructed the jury that “possession of property, recently stolen, is prima facie evidence of the guilt of the' possessor, unless he shall make a satisfactory and uncontradictory account of how he obtained the possession.” The Court declined to give the following instruction, demanded by the prisoner : “ If the jury believe, from the evidence, that the defendant: bought the property, and paid for it in the city of Springfield, and' this pui’chase was open and public, unconnected with any suspicious circumstances of guilt, that is a satisfactory account off his possession of the property, and removes all presumption off guilt, growing out of his possession thereof.” The refusal to give • this instruction, is assigned for error.

The instruction is subject to no just exception. It asserts a correct legal proposition, and the Court erred in refusing.it; It is manifest, from the circumstances of the case, that the refusal, of the Court, to give the instruction, may have materially prejú- • diced the prisoner. The Court had already in effect, instructed the jury that, if the property was found in the possession of the prisoner soon after it was stolen, a prima facie case was made; against him, and he was bound, in order to discharge himself, to show satisfactorily how he Obtained the possession.

The instruction in question, supposed a state of case, which fully repelled any presumption arising from the mere fact that the property was found in the possession of the prisoner. It was based on the hypothesis that he had fairly acquired the property by purchase. If it came into his hands in that way, the ¡subsequent possession was entirely consistent with his innocence.

The refusal of the Court to give the instruction, may have left the impression on the minds of the jury, that the facts indicated therein, if appearing in evidence, were not sufficient to overcome the presumption of guilt, resulting from the possession of the property.

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

Judgment reversed.


author: Caton, J.

text:
    Elizabeth Hamilton, et al., Pltffs in Error, v. Winthrop C. Gilman, et al. Defts in Error.
    ERROR TO SANGAMON.
    A decree cannot be entered against infants, without proof to sustain the case.
    This was a bill against parties, some of whom were infants. No proof was taken in support of the bill.
   Caton, J.

This record does not show that any evidence was before the Court, to-sustain the case made in the bill. Without such proof, no decree could be entered, especially as against the infant, Defendant.

The decree is reversed, and the suit remanded, with leave to the Complainants, -to amend their bill.

Decree reversed.


text:
    Jonathan Prior, Pltff in Error, v. Joseph White, Deft in Error.
    ERROR TO HANCOCK.
    Parties may stipulate in a chattel mortgage in. such way as to limit or qualify the right of possession and use in the mortgagor, so as more effectually to secure the mortgagee.
    Notes may be given after the execution of a chattel mortgage, for a pre-existing debt, without vitiating the transaction.
    The declarations of a mortgagor as to his intention in executing the mortgage, unless knowledge of them is brought home to the mortgagee, are inadmissible in evidence, and. his connection with them must first be shown, before they can be offered as testimony.
    It is not error to refuse an instruction, when another instruction is given, whereby the party asking it, has the full benefit of the law as applicable to the conduct of the parties connected with the transaction.
    If evidence is admitted, competent for one purpose, which may have an improper effect, the party aggrieved, should ask an instruction explaining its legitimate effect; and then the views of the Court, admitting the testimony, may be canvassed.
    This was a trial of the right of property, before a Justice of the Peace of Hancock County. White was the claimant under a chattel mortgage from Daniel Prentiss. Prior claimed the property by virtue of an execution in his favor, against Prentiss. The cause was taken to the Circuit Court of Hancock County, and was tried before Minshall, Judge, and a jury at September Term, 1850, when a verdict and judgment were rendered for the complainant, White. Pi’ior, by writ of error, brings the cause to the Supreme Court, and assigns for error, the admitting of the chattel mortgage, the notes and notiee on the trial in the Circuit Court, the refusal of proof of the delarations of Prentiss, giving improper instructions, and refusing to give instructions asked for by claimant.
    White introduced a chattel mortgage for the goods in controveisy, dated and acknowledged April 25, 1850, recorded April 27, executed by Prentiss, to him, with these recitals and conditions :
    1. Provided, fyc., that if the said Prentiss shall well and truly pay, &c.,to the said Joseph White, the sum of $200, according to the tenor of 3 several promissory notes, bearing even date herewith, and payable in manner following, to wit: One for $80, payable in two years, &e., with interest, &c., then this mortgage to be void, &c.
    2. A stipulation in the usual form, that Prentiss should retain possession, &c.

      3. But if the same, or any part thereof, shall be attached or claimed by any other person or persons, at any time before payment, or the said Daniel Prentiss shall attempt to sell the same, without the authority and permission of the said Joseph White, or his assigns, in writing expressed, then it shall and may be lawful for the said Joseph White, or his assigns, to take immediate and full possession of the whole of said goods and chattels, to his and their own use, &c.
    The mortgage was properly entered on the Justice’s docket. Three notes under the mortgage, were also offered in evidence. Claimant proved by the constable, a seizure under the execution of a portion of the property described in the mortgage, found in the possession of Prentiss. White also introduced a notice from him to the constable, that he, White, claimed the property seized upon, by virtue of his mortgage.
    Prior offered proof, as to the declarations of Prentiss, in reference to his object in mortgaging his property, &c., and also, that the notes produced on the trial in the Circuit Court, were different from those produced on the trial before the Justice of the Peace.
    R. S. Blackwell, Williams & Lawrence, for Pltff in Error.
    Browning & Bushnell, for Deft in Error.
   Caton, J.

It has been held, that in case of a chattel mortgage, when under a provision in the mortgage, the mortgagor retains the possession and use of the property, he has such a legal interest in the property as may be seized and sold on an execution against him—the purchaser under the execution, succeeding to all the rights of the mortgagor, and no more. Bailey vs. Burton, 8 Wendall, p. 347. Where, however, the possession is transferred to the mortgagee, then the mortgagor has but an equitable interest in the chattel, which is not subject to an execution at law. Marsh v. Lawrence, 4 Cowen, 461.

In this State, the right of the parties to stipulate in the mortgage, that the mortgagor may retain the possession and use of the property for a certain time, is secured by statute, and we can see no reasonable objection to allowing the parties to limit or qualify this right of possession and use in the mortgagor, so as more effectually to protect the security of the mortgagee, as was done in this case. The provision here is, that the mortgag- or may retain the possession and use of the property; but in case the chattels, or any part thereof shall be attached or claimed by any other person, at any time before the payment of the money secured, or in case the mortgagor shall attempt to sell them without the consent of the mortgagee, then the latter shall have the immediate right to the possession of the whole of the said chattels, to his own use. We cannot perceive how this can be held to be fraudulent, as against the policy of the law, or in any way unreasonable. So long as the property is liable to be taken from the possession of the mortgagor, and transferred to that of a stranger, who might be disposed to remove it beyond the limits of the state, the security afforded by the mortgage, to say the least, must be extremely precarious. This is a contingency, against which, the party should have the right to protect himself. If he allows the mortgagor to retain possession of the goods, the parties may fix the limitation of that possession, which may as well depend upon the happening of an event, especially when that event may affect the stability of the security, as upon the lapse of a specified period of time. There was no error, then, in admitting the mortgage in evidence.

Nor do we think that the fact that the notes had not actually been executed at the time of the making of the mortgage, but were made subsequently, so as to correspond with the mortgage, rendered the transaction fraudulent per se. This was undoubtedly a circumstance tending to prove fraud; and as such, was properly submitted to the consideration of the jury 5 but if, as was stated in the claimant’s eighth instruction, the mortgage and notes were really given to secure a Iona fide pre-existing debt, they should be upheld and enforced. The cases referred to in Connecticut, were not at all parallel with this. Those were mortgages upon real estate, which purported to secure different liabilities from those actually existing between the parties. Those mortgages were postponed to subsequent encumbrances, because the policy of their recording laws, required the actual condition of the title to real estate to be exhibited upon the face of the conveyances, and spread upon the public records.

In our apprehension, the most important question in this case, is presented upon the decision of the Circuit Court, in ruling out the declarations of the mortgagor, made prior to the execution of the mortgage. We shall not stop to review all of the decisions referred to, and which have been examined on this question, but shall content ourselves with adverting to the two cases in Massachusetts. The first is Clarke v. Wade, 12 Mass. R, 438, where, for the purpose of proving a deed fraudulent, the declarations of the grantor, made before and subsequent to the execution of the deed,were offered and rejected by the Court, although the grantor had since died. After examining the question, the Court concludes: “ Upon the reason of the thing itself, as well as upon authority we are all of opinion that the evidence in the case at bar, was properly rejected."

In that case, like the one before us, there was no evidence tending to connect the grantee with the declarations offered to be proved, or showing that he was cognizant of them at the time he took the conveyance. This is a case directly in point, supporting the decision below.

On the other side, is cited the case of Bridge v. Eggleson, 14 Mass. R. 244. In that case, several conversations of the grantor, made before the conveyance, tending to show his expected insolvency, were proved. At one of these, the grantor was present, and the Court said: “ So far as the conversation tended to prove the insolvency or embarrassment of Goodwin, before he conveyed his estate, we think the evidence proper. The fact was essential to be proved, in order to establish a motive on his part, to make a fraudulent conveyance.”

This case does not profess to overrule or conflict with the former. In speaking of that case, the Court said: “ This decision does not establish the inadmissibility of declarations made before the deed, if connected with evidence of knowledge on the part the grantee."

Enough has been quoted, to show a striking distinction which the Court took between those two cases; and the same distinction exists between the case before us, and the one relied upon in the 14th Mass. R. Certainly the declarations of the mortgag- or, not made at the time of the execution and delivery of the mortgage, or in the presence of the mortgagee, and not relating to the title of the property, ought not, by the ordinary rules of law, to be admitted in a controversy between the mortgagee and a third person. They are not a part of the res gesta and are not made by a party to the suit. They are in every sense of the word hearsay evidence. Indeed, they are made by a party whose interest it is to defeat the mortgage, and to have the property applied to the payment of a judgment against him. But it is said, he could have no such interest or object before the execution of the mortgage. This may not be so; he may as well anticipate the existence of such an interest and be prompted by the same object, before the execution of the mortgage as after. Finding himself pressed to make the mortgage, he might have the same motives then, to make declarations which would tend to defeat it, which he would have afterwards, to postpone it in favor of an execution against him. It is admitted on all hands, that such declarations are not evidence against the mortgagee, unless they were brought to his knowledge prior to the execution of the mortgage. If they are not evidence against the mortgagee they cannot properly be admitted, for it is against him alone; and to prejudice his interests that they are offered. If a knowledge of a fraudulent intent by the mortgagor, is brought home to the mortgagee, that may be competent evidence against the latter, as tending to show his participation in the fraudulent design. Hearsay evidence, or the declarations or statements of third persons, may often be competent, when the party to be affected can be connected with them, but when that is the case, it is not competent to admit them till such connection be shown. It will not do to say that it was the absolute right of the party to have the declarations admitted, and then if he did not connect the claimant with them, that the court should instruct the jury that they were not evidence against him. In this, case there was no pretence that the claimant had any knowledge of these declarations, or that he had the least intimation of any fraudulent design on the part of. the mortgagor. Such being the case, had the evidence been admitted, the Court would have been obliged to have withdrawn it from the consideration of the jury, and we all know, in a case of this kind, how imperfect a security that often is, against the pernicious effect which such evidence is calculated to produce. The evidence once admitted and the mischief is done, which to a certain extent is often irreparable. In this case it was of no avail to prove that the mortgagor was actuated solely by fraudulent motives, unless the mortgagee participated in the fraudulent design. Here there was already, at least, as much evidence of fraud on the part of the former, as of the latter, and of what avail could it have been to have cumulated evidence of fraud against the former, so long as there was an insufficiency, as the jury have found against the latter. We are of opinion that the legal rights of the party were not prejudiced by the exclusion of this testimony, and that in this the Court committed no error.

We do not think the judgment should be reversed, for the error assigned upon the refusal of the court to give the second instruction asked for by the plaintiff in error. The princijDle of law which is there alluded to, so far as it is properly applicable to this-case, is more accurately stated in the seventh instruction for the plaintiff in error, which was given; so that the party had the benefit of the law, as applicable to the conduct of the parties at the time of the execution of the mortgage.

It was not denied on the argument, that the notice which was admitted, might be competent evidence to go. to the jury for some purpose, but then it was insisted that the party claimed for it an effect to which it was not entitled, and that the Court admitted it for a wrong reason. The decision of the Court consisted in the admission of the evidence, and it is with that, rather than the reason for the decision, which we are now to consider. Had the party anticipated that the jury would allow that evidence an improper influence or effect, it was the right of the party to ask an instruction, explaining its legitimate.effect. In that way the views of the court upon that evidence might properly have been brought before this Court for review.

Upon the evidence, we do not think a new trial should have been granted. There were undoubtedly some circumstances tending to show that the mortgagor designed to delay his other creditors, but still it may well have been, that he designed to produce that result, no further than would necessarily follow from his securing a bona fide debt due to White. This he had a right to do, and there is nothing connected with the claimant, showing, that he had any other design than to secure his own debt. As the jury found that the transaction was an honest one, we are not disposed to disturb their verdict.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    The County of Greene, Pltff in Error, v. Moses O. Bledsoe, Deft in Error.
    ERROR TO PIKE.
    Where the condition of a bond may be broken by the omission or commission of a single act, the breach may be assigned in the words of the covenant, but if it may be broken in various ways, the assignment should state the particular breach.
    Where the law requires a public agent, to take security in real estate of treble the value of the sum loaned, the duty is answered, if he has availed himself of the best means of forming a correct opinion of the value of the property, and believes it adequate.
    In order to prove a breach of duty, it should be shown, that the agent did not believe the security adequate, or that he was guilty of negligence by not informing himself.
    An appearance and cross-examination of witnesses is a waiver of objection to the sufficiency of notice.
    In depositions, it is not indispensable that the officer taking them, should literally follow the requirements of the statute, if the substance of the law is complied with.
    This was an action upon a school commissioner’s bond, brought against the defendant in error. The declaration contains several counts; in the first, the bond is set ont, and the averment that Bledsoe, as school commissioner, loaned one Eakin $1,232, of the school fund of Greene county, on mortgage security, and that “ the title to said real estate was not clear, unencumbered and indisputable, and that the said real estate was not in value treble the amount loaned, as aforesaid, at the time the said loan was made, nor hath been since; that proceedings were had by the successor of Bledsoe, to foreclose the mortgage; that judgment was obtained upon the bond; that executions were issued, and the whole sum realized upon the executions and the sale of the mortgaged premises was but $534 83; and so the plaintiff says that the said Moses 0. Bledsoe, as school commissioner and agent for, &c., hath in the premises forfeited and broken the condition of his said bond, contrary to the form of the statute in that case made and provided.” And avers loss of the plaintiff in the premises at $2,000.
    The second count avers that no more was made, because Eakin had not any unencumbered real property, out of which the judgment could be satisfied; avers breach of condition of bond contrary to the form of the statute, in this that Bledsoe did not faithfully loan and have secured the sum loaned, as required by the statute.
    The third count, like the second, averring that the Fii Fa. was returned, no property found. The fourth count, same as third, averring the insolvency of Bakin at the time the obligation taken by Bledsoe, as school commissioner, became due.
    To this declaration the defendant interposed several pleas, upon which issues were joined, viz.: That he did not unfaithfully and negligently loan the §1,232.
    That he did faithfully loan and have the money secured.
    That he had settled with the plaintiff, and fully paid and satisfied the plaintiff all that was due and owing.
    That he had resigned his office, delivered over his books and papers, &c., to plaintiff, and that he settled with the plaintiff, reported said loan and mortgage to the plaintiff, which was accepted and approved. A demurrer to this plea was sustained.
    That he faithfully performed his duties as school commissioner in loaning the money; that he had good reason to believe, and disbelieve that the mortgaged property was .worth treble the value of the sum' -loaned.
    . .That the property at the time of taking the mortgage was treble the valúe of .the sum loaned.
    That Joseph Eakin was not insolvent at the maturity of the mqrtgage'as alleged in declaration.
    That at the time the mortgage was executed he had good reason to believe and did believe that the mortgaged property was Worth three times the sum loaned. Also a plea of non est factum.

    A demurrer to the first count of the declaration was sustained by the Circuit Court.
    On the trial of the cause on the circuit, the jury found for the defendant; the county of Greene brought the cause to this Court.
    The exceptions to the manner in which the depositions were taken, it is not material to notice; the opinion of the court states them sufficiently.
    D. A. Smith, for Pltff in Error.
    Browning & Bushnell, for Deft in Error.
   Caton, J.

The first count of this declaration is upon a bond executed by Bledsoe and his sureties, conditioned that he should faithfully discharge his duties as school commissioner of said county, and should, at the expiration of his term of office, pay over to his successor, the funds in his hands. The count, after setting forth the bond and condition in the usual way, proceeds to aver, that the defendant Bledsoe, as such school commissioner, on the first of February, 1839, had in his hands the sum of $1,232, which he loaned to Eakin, to secure which he took a bond, together with a mortgage upon certain premises described. And it is averred that thé title to said real estate was not clear, indisputable and unencumbered, and that it was not in value of treble the amount of the sum loaned. The count then shows that the mortgage had been foreclosed and the mortgaged property sold for the sum of $533 33, which is all that has been made of said debt, “ and so the said plaintiff says that the said Moses 0. Bledsoe, as such school commissioner and agent for, &c., as aforesaid, hath in the premises forfeited and broken the condition of his said bond, contrary to the form offhe^tatue, &c.” A demurrer was sustained to this count^iWSE^T^^gd. for error. a

The averment that the title to the mortgaged i^renn not clear, indisputable and unencumbered, JP cient breach of the bond to render the defencEnts liable a covenant, or the condition of a bond may%e$¡ilJÍ$irT5y omission or commission of a single act, the assigned in the words of the covenant or condition, Ifut where the condition may be broken in various ways, the party in his assignment must specify the particular mode in which the condition has been broken. Here the title may have been encumbered in various ways, or it may have been disputable from various causes, and it was the right of the defendants to know how the land was alleged to be encumbered. The People v. Brush, 6 Wend., 454. Here it is not even shown, whether the complaint is that the mortgagor’s title was defective or whether it was encumbered, and the defendants are not advised what specific complaint or defect they are called upon to meet.

The other breach complained of, however, is of a different character. The averment there is, that the real estate taken in security, was not of treble the value of the amount of money loaned. The condition of the bond is, that the commissioner should faithfully perform all the duties which were or should be required of him by law. As the law then stood he was required to secure the loan upon real estate, in value, treble the amount of the loan. This duty could be violated in but one way, and hence it was sufficient to assign the breach, by negativing the words of the statute, which by adoption constituted a part of the condition of the bond.

In the case of the People v. Haines, 5 Gilman, 528, which was a suit upon a school commissioner’s bond, the complaint was that the mortgagor had no title to the mortgaged premises, and it was decided that: “If the commissioner acts in good faith, and with due caution and circumspection, then he does his duty and incurs no responsibility; but if he loans the money either in bad faith, or without such care and circumspection, then he diverts and misapplies it, and is responsible at once for all the money thus misapplied.” The principle of this decision is applicable to the case before us. If the commissioner had reason to believe, and did believe that the mortgaged premises were of treble the value of the sum loaned, then he has discharged his duty with fidelity, and is not responsible for the consequences. No standard is fixed, either by law or by public estimation, by which we can determine, with certainty, the value of real estate. It must necessarily be estimated by the judgments of men, and hence, at best, it is but matter of opinion, which we know must vary widely in the estimates of different individuals, and much more so here than in older States and in large cities. There, the rents and profits, to a very considerable extent, afford a standard of value, while here, the prospects of the future often, and indeed generally, have a much greater influence than the present income of the estate in determining its value, With us then, the value of real estate is peculiarly matter of opinion, and it is incapable of being determined with absolute certainty, and the Legislature never could have designed to require of the commissioner, that he should determine at his peril, and with absolute certainty, that which was incapable of demonstration. Doubtless, it was in view of this, and of the fallibility of human judgment, which induced them to require, what would be'exorbitant security if the thing mortgaged were of a fixed and unalterable value. The requirement of the law is answered, if the commissioner has availed himself of the best means of forming a correct opinion of the value of the property mortgaged, and believes that it is of the required value. To require more than this would make the law oppressive, and would render it extremely hazardous for any one to accept the office of shool commissioner.

If this is all the law demands of the commissioner to fulfil its requirements, then, in order to prove the breach which negatives the terms of the law, the plaintiff must show, to the satisfaction of the jury, either that the commissioner did not believe that the land was of the requisite value, or that he was guilty of a want of proper care in not ascertaining that it. was of inferior value. The objection that it should have been averred that the commissioner knew that the land was of less value than required by the statute, or that he might, with proper care, have known that fact, we think was not well considered. The case in 5 Gil-man, above referred to is directly in point against this objection. In that case these was no want of fidelity or vigilance charged in the declaration, and yet it was held that one of these must have been wanting to make the commissioner liable. We are of opinion that the demurrer to this first count should have been overruled.

Of the many questions which were presented relating to the depositions, but one or two require particular notice. Of the objections to immaterial testimony, it may be remarked, that most of the issues-joined, were entirely immaterial, and while the greater part of the depositions were entirely foreign to the real merits of the action, yet they were more or less applicable to these issues, and if parties will allow immaterial issues to be formed, they ought not to complain that they have been tried.

The appearance of the defendants and their cross examination of the witnesses was a waiver of all objections which they might have urged to the sufficiency of the notice to take the depositions.

We think the Circuit Court erred in rejecting the depositions of Reno and others, because the officer before whom they were taken, did not state in the precise place directed by the statute, that the witnesses were sworn. In the introductory part of the depositions, the officer states that the witnesses were sworn previous to their examination, as required by the statute, and in addition to that, at the foot of each deposition, is the signature of the witness, and an ordinary j urat signed by the officer, stating at what particular hour the witness was sworn and examined. The certificate at the foot of the depositions does not in express terms state that the witnesses were sworn, but the officer had already stated that fact twice, once in the caption to the depositions to which the closing certificate refers, and again in the jurat at the close of each deposition, where each witness signed his name. We cannot doubt that the depositions were taken strictly in conformity to the law, and the certificate we think is substantially sufficient. The statement that the witnesses were sworn at the proper time and place is under the official sanction of the officer, and although he has not followed the literal directions of the statute, as to the particular place or connection in which that statement is made, yet we think that is not sufficient to justify the conclusion that the depositions are not entitled to credence. This court has uniformly held, that where the substance of the statute has been complied with, the depositions should not be rejected, although the literal provisions of the law have been departed from. In the case of Ballance v. Underhill, 3 Scam., 453, a deposition was held to be admissible, although it was nowhere stated, that the witness was sworn before he gave his deposition, the Court holding that it would presume that the oath was administered at the proper time. In Hawks v. Lands, 3 Gilman, 227, the literal requirements of the statute were allowed to be more widely departed from, than in the case before us. The statute provides that in all cases, both where the interrogatories are sent out with a commission to take a foreign deposition, and where they are orally propounded in case of a domestic deposition, the officer taking the same, “ shall cause such interrogatories, together with the answers of the witnesses thereto, to be reduced to writing in the order in which they shall be proposed and answered, and signed by the witness.” In that case the deposition was of a non-resident witness, and the officer taking the deposition had not caused the interrogatories to be written down with the answers, but had merely referred to them as they were contained in the commission, and this departure from the statute was held not only proper but even commendable, as it saved expense and answered every beneficial purpose. The court could see by the reference, what question had been put to and answered by the witness, and that was as satisfactory as if they had been re-written in the deposition. So here, we can see that the witnesses were properly sworn, and at the proper time, and and when that is the case it would be altogether too technical to say that the -party should lose the benefit of théir evidence, because the officer did not certify that fact in the particular place directed by the statute. We think the Circuit Court erred in rejecting these depositions.

Whether the testimony which is really immaterial to the merits of the case, should be rejected upon another trial, will depend upon the state of the issues at that time. Should the counts on which the immaterial issues are formed be dismissed, then the immaterial evidence must be rejected. As the plaintiff has the right to dismiss those counts without the leave of this, or the Circuit Court, it is unnecessary to make any order upon his application for leave to do so.

The judgment of the Circuit Court is reversed, and the cause remanded, with leave to the defendants to plead to the merits of the first count of the declaration.

Judgment reversed.


text:
    Paris Mason, for use of Sarah Mason, Guardian of Martha M. Mason, Pltff, v. Tarleton F. Brock, Deft.
    AGREED CASE FROM JERSEY.
    In divesting a married woman of her real estate, the mode prescribed! by statute,. must be substantially complied with.
    A notary public cannot take the acknowledgment of a deed,.unless he‘authenticates-it, by his official seal
    The provision of law which authorized certain officers to use- their private- seals-until provided with public ones, has no application to Notaries Public..
    The agreed case presented to the .Court for- consideration,, states that plaintiff sued defendant on two notes, given in 1836,. for the price of certain lots in Grafton, sold by Sarah Mason as-guardian, &c. The defendant, for defence, relied upon the want of title at the time of the institution of this suit. For replication,. the plaintiff relied upon the fact, that Mrs. Allen, who had the title in fee to said lots on the 17th May, 1842, had, with her husband, William H. Allen, tendered a deed of that date, conveying the same to the defendant, before the institution of this suit; and offered in evidence a deed of that date, certified by Paris Mason, as Notary Public; said certificate concluding as. follows:

      “In witness whereof I have hereunto set my hand and private seal, at Grafton, Jersey county, this 17th May, 1842, no_ public seal having been furnished.

      [seal.] Paris Mason", Notary Public ”

    Said seal being a mere scrawl. Mrs. Allen and her husband were residents of said county on the 17th of May, 1842. Which certificate, in every other respect except the quotation above, was admitted to be in due form of law. Upon the foregoing issue and facts, the case was submitted to the Circuit Court at October term, 1850, Woodson, Judge, presiding, when a judgment was rendered for the defendant. The plaintiff below brings the cause to this Court. The error assigned was the refusal of the Circuit Court, to admit the deed from Allen and wife to Brock, in evidence.
    Henry H. Billings and Lewis B. Parsons, for Pltff in Error.
    Neither at common law nor by our statute,ris there any prescribed form for a notarial seal. R. S., 470. It .is even doubtful whether a notary’s signature is not sufficient without any seal. Bank of Rochester v. Gray, 2 Hill, 228.
    The reason of the old common law doctrine of seals having passed away, the law itself, at least in its strictness, has passed, and is not generally adopted’ in this country. At common law a seal must be impressed upon wax, wafer or other tenacious substance, and a mere stamp on paper is not sufficient. Warren v. Lynch, 5 John., 244. In Virginia, a scrawl, aside from statute, is a good seal. Jones & Temple v. Logwood, 1 Wash., 57. Same in Pennsylvania. 1 Sergt & Rawles, 72. In Maryland a scroll set opposite the name is a seal, if it was so intended, though nothing is said about a seal in the body of the instrument. Trasher v. Everhart, 3 Gill & John., 246. In New Hampshire an impression on paper is a sufficient seal. Whether a.scroll would be a .sufficient seal to a protest—quere? Center v. Burley, 9 N. H., 569. In Alabama, evidence of intention to make a scroll a seal, is sufficient to make it such. Lee v. Adkins, 1 Minor, 193. Also to same point, Alexander v. Jameson, 5 Binney, 244; 3 Phillips’ Ev., 1274, note 884; United States v. Coffin, Bee’s S. C. Reports, 1 McLean, 462; United States v. Exrs of Stephenson. Where an officer, taking an acknowledgment, styles himself such an officer as is authorized, it will be prima fade evidence of his being so. Willinch’s lessee v. Mills, 1 Peters’ C. C., 429; Johnson’s lessee v. Haynes, 1 Hammond, 55; 3 Phillips’ Ev., 1247. The cases above are decided without any particular statute varying the common law rule.
    The signature of the party is what now gives an instrument credit and authenticity. 1 Alabama, above cited; McDill v. McDill, 1 Dallas, 64. In Indiana, under a statute like our own, R. S., ch. 85, §56, a scroll upon an execution issuing from the Circuit Court, is decided to be a good seal. Dixon v. Doe, 5 Blackf., 106. Also in Kentucky, under a law requiring the officer to certify it (the acknowledgment) with the seal of his office annexed, where the officer uses nearly the same words as in the case at bar, a scroll is declared a sufficient seal. Collins v. Boyd, 5 Dana, 316. Courts will give a liberal construction to acknowledgments, and sustain them, if by a reasonable and liberal intendment, they can do so. Would not the same rule apply with greater force where the irregularity is .only in the testatum of the officer?
    D. A. Smith, for Deft.
    The question in this case, is as to the validity of a deed by a feme covert, conveying her fee simple estate, acknowledged before a notary public of Jersey county, and .certified under his band and private seal, no seal of office being provided. Our statute is plain, positive, and peremptory in its requirements, that the acknowledgment must be authenticated under the seal of office of the notary. In case, 11 His., 120, this Court holds the following emphatic language: “There is no room for construction, where the terms of a statute are clear and unambiguous. The legislature had an undoubted right to pass ,the law in question, and it is enough for the Court to know, .that thus it is written, 1 Quod scriptum, scriptumJ ” 1 Wash., 57; 2 Cond. R., 179. As .to office of notary public, and necessity of his notarial, or public and official seal to authenticate his acts, see 7 Porter, 529; 1 Ala., 527; 2 Hill, 230; 9 K H., 569; 13 Verm., 334; 4 Blaekf. 185; 6 id., 356; 3 Monroe, 238; 4 Dana, 329, 330.
   Treat, C. J.

The only question in this case, relates to the validity of a deed made by a husband and wife, for the purpose of conveying the real estate of the latter. A married woman can only be divested of her real estate in the mode prescribed by statute. The certificate of acknowledgment, is an essential part of the due execution of a deed, by which the real estate of a feme covert is to be transferred \ and unless it is in substantial compliance with the statute, no title passes. Mariner v. Saunders, 5 Gilman, 113; Hughes v. Lane, 11 Illinois, 123.

The only objection taken to the deed in question, is, that the certificate of acknowledgment is not properly authenticated. The conclusion of the certificate is as follows:

“ In witness whereof, I have hereunto set my hand and private seal, at Grafton, Jersey county, this 17th May, A. D. 1842, —no public seal having been furnished.

[seal.] Pajbis Mason, Notary Public.

The seal was a mere scrawl. The statute in force when this certificate was made, provides that deeds may be proved or acknowledged before “ any clerk of a Court of record, mayor of a city, or notary public; but when such proof or acknowledgment is made before a clerk, mayor, or notary public, it shall be certified by such officer, under his seal of office.” Bev. Laws of 1833, p. 138.

In our opinion, the certificate of the notary is fatally defective. The statute imperatively requires it to be under his official seal. It makes the affixing of the official seal an indispensable part of the certificate. Without the seal, the certificate is incomplete and imperfect. It has no validity or efficacy, unless the seal is added. It might as well be insisted, that a writ of error issued from this Court, which was not under the seal of the Court, would he valid, as to say that a certificate of acknowledgment by a notary, need not be evidenced by his notarial seal. The same authority that requires the process to be under the seal of the Court, directs the certificate to be under the official seal of the notary. The Courts have no more power to dispense with the requirements of the statute, in the one case, than in the other. It is only by force of the statute, that the certificate of a notary has any effect,, as evidence of the execution of a deed; and the statute requires it to be under the official seal of the officer. A certificate, which is not verified by his seal of office, derives no force or efficacy from the statute. We cannot say, that the seal is a mere formality, that adds nothing to the dignity or solemnity of the instrument. It is enough, that the law positively requires it. The propriety of the requisition rests with the legislature. A notary is empowered to take the acknowledgment of a deed, and certify the same under his official seal. He has no power to •do it in any other manner. If he has no notarial seal, with which to authenticate his official acts, he is destitute of any authority to certify the acknowledgment of a deed. He must procure au official seal, before the authority conferred on him to take the acknowledgment of deeds attaches. He cannot make use of a scrawl or private seal, for the purpose of authenticating a certificate of acknowledgment. The provision of law allowing certain officers to use their private seals, until they should be provided with public seals, had no application to a notary. He has to provide himself with an official seal. It is not furnished him by the public. The statute is silent as to the form and character of the seal. He may adopt a seal, with such an inscription as his judgment may dictate, or his fancy may suggest. It must, however, be capable of making a definite and uniform impression on the paper on which a certificate is written, or on some tenacious substance attached thereto, so that when a question arises as to the genuineness of an authentication, it may be determined by reference to the seal in the possession of the officer.

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

Judgment affirmed.


text:
    T. S. Brockman, Apellant v. William Aulger and Sidney Parker, Appellees.
    APPEAL FROM BROWN.
    In a bill for an account between partners, it is the duty of the master to state the accounts and include that statement in his report.
    In case of reference to a master to take and state an account between partners, the parties and witnesses should be examined on oath, and their statements reduced to writing.
    If the party or a witness refuses to appear before the master, or to answer; the Court, if informed, will punish for contempt.
    The master should require all books and other evidences to he presented, which will enable him to present a full statement, and strike a correct balance.

      After the report is prepared, it is proper for the master to hear exceptions, and correct bis report, and if he disallows exceptions, these should be reported to the Court, with the evidence relating thereto, to be heard.
    This was a bill in Chancery, filed to obtain an account of partnership transactions. The proceedings under the bill, are fully stated in the opinion of the Court. The third exception, taken in the Circuit Court, to the report of the master, is that, • “ no report is made of the accounts between the parties on the partnership books.”
    The decree was pronounced by Minshall, Judge, at the March term, 1850, of the Brown Circuit Court.
    FT. H. Purple and John Bailey, for Apellant.
    Jas. W, Singleton and E. S. Blackwell, for Appellees.
   Caton, J.

This was a bill filed for an account between partners. It states, that the complainant owned a carding machine, and that the defendant was a wool carder by occupation. That they entered into an agreement, by which the complainant was to furnish the machine and to pay all the expense of running the same, except manual labor and repairs. And to furnish lard to be sold to customers. The defendant was to run the machine at certain specified rates, and to have one-third of the compensation received for carding, and the complainant two-thirds. The defendant was to sell the lard furnished by the complainant to such customers as should want the same, and to pay the whole of the money received therefor over to the complainant. In pursuance of the agreement, the defendant run the machine during the time specified. That the complainant complied with the agreement, and paid for the repairs. The earnings of the machine amounted to the sum of $1,494 72, which was received by the defendant, two-thirds of which belonged to the complainant, and that the defendant received for lard belonging to the complainant, the sum of $40 66. That the complainant has repeatedly called on the defendant to account for the money thus received, and to pay over to him his proportion, but that he has refused to do so except the sum of $606 43, leaving the sum of $427 83, still due the complainant. That the defendant had the exclusive control of the business, and kept the books, and made the entries therein himself, to which reference is made, and of which a summary is filed with the bill.

. The bill also states that the defendant is indebted to the complainant in the sum of $124 20, for goods sold, work done, money loaned, a bill of particulars of which is exhibited. The bill charges that the defendant refuses to account and to pay to the complainant the amount due him.

The bill was taken for confessed and a reference was made to a master to take and state an account between the parties.

The master reported that he was attended by the parties and their solicitors, and that the complainant proved “two items in his account against the defendant Aulger, amounting to fifteen dollars. The defendant Aulger then and there introduced and proved his account against the complainant amounting to two hundred and eighty-four dollars. It therefore appears from the accounts proven, that the complainant is indebted to the defendant, Aulger, in the sum of two hundred and sixty-nine t6„%- dollars, all of which is respectfully submitted.”

Several exceptions were filed to this report, which were disallowed by the Court, and a decree rendered in favor of the defendant for the amount reported by the master to be due him.

We think that the third exception, at least, should have been sustained. Mo account is, in fact, stated by the master, as was required by the order of reference. The accounts of the parties taken before him should have been stated in the report. Indeed, it does not appear that any account of the partnership transactions was taken by the master, but we should infer from the report, that that was not done. The reasonable inference from the report is, that only some individual accounts between the parties were taken. Unless the defendant’s account, which was heard and allowed by the master, was stated and sent up by the master in his report, it was impossible for the Court to determine whether that was such an account as should have been allowed in the suit,, and on which the defendant had a right to a decree for the balance in his favor. The existence of the partnership and of partnership transaction, and his liability to account as partner, were admitted by the defendant, by allowing the bill to be taken for confessed. Whether the defendant’s account related to the partnership transactions or with any thing stated in the bill, it does not appear. As the case stood it was only upon such an accounting that the defendant could claim a decree for a balance in his favor.

As this case must again go before the master, it is not deemed improper to say a word in relation to the course proper to be pursued by him in taking the account. Particularly in ease of a reference to a master to take and state an account between partners, it is proper, and even necessary that witnesses, as well as either party, at the request of the other, should be brought before him and examined on oath, touching the partnership transactions, which examination should be carefully taken down by the master. And if a witness, or either party refuses to appear in obedience to the master’s summons, for that purpose, or refuses to answer a proper question, allowed by him, it is the duty of the master to report the contempt to the Circuit Court, whose duty it would be to punish the contempt.

The master should also require the production of all partnership books and papers, that by a full and patient examination, he may be able to state, with accuracy and precision, the true state of accounts between the parties. The report, too, should present a detailed, statement of the accounts of all the transactions on either side, showing what items are allowed, striking a balance in favor of the party entitled to it. After the draft of the report is prepared, it would be proper, although by our practice, perhaps not indispensable, that the parties or their solicitors should be again called before the master, to hear the report read, when either party has an opportunity to take exceptions to the report, which exceptions should be argued before the master who allows or disallows them, and in case he allows any of the exceptions, he reforms his report accordingly. When exceptions are disallowed by the master, if the excepting party desires it, he sends up the exceptions disallowed, together with all the evidence relative thereto, when the exceptions stand for hearing before the Court. This gives the master an opportunity of reconsidering the subject, before his report is finally made, and of making such alterations, as reflection and the suggestions of counsel may convince him are right; this saves much time and trouble in the Circuit Court, and frequently avoids the necessity of a re-reference. Although in our practice we have, by common consent, departed from the strict and technical rules of the English practice, in case of proceedings before the master, yet the substance of that practice is founded in reason and tends to promote more exact justice, and ought not to be widely departed from.

The decree of the Circuit Court must be reversed, and the suit remanded for farther proceedings.

Decree reversed.


text:
    The People, Pltff v. Henry M. Smith, et. al. Defts.
    ORIGINAL SUIT.
    A collector of revenue is discharged from liability to the State, if he pays the Treasurer, even if the Treasurer fails to report the fact to the Auditor. The remedy of the State is against" the Treasurer.
    This was an action of debt, brought against Henry M. Smith, and his sureties, on the bond of Smith as collector of Pulaski County.
    The facts of the case are stated in the opinion of the Court.
    D. B. Campbell, District Attorney for Pltffs.
    A. G-. Caldwell, for Deffcs.
   Treat, C. J.

This is an original suit in this Court, brought ón the bond given by the Collector of Pulaski County, for the collection of the taxes for the year 1847. It is submitted on an agreed state of facts, as follows: the collector, on the 12th of Jan., 1848, paid to Milton Carpenter, then. Treasurer of State, one hundred dollars on account of the revenue for the year 1847, and obtained the treasurer’s receipt therefor; but the receipt was not countersigned by the Auditor, nor was a duplicate filed with the auditor, in conformity with the uniform practice in such cases; in consequence of which, the collector has never been credited with the amount on the books of the auditor. The only question relates to the validity of this payment. By the law of March 2d, 1883, the treasurer was required to give duplicate receipts for payments made on account of the revenue; one of which was to be filed with the auditor, and entered on the books of his office; the other was to be countersigned by the auditor, and delivered to the person making the payment; and no payment was to be considered as made, until the treasurer’s receipt was countersigned by the auditor. Rev. Laws of 1833, p. 104, §6. In the revision of the laws in 1845, that provision was not retained. The statute, now in terms, only requires the treasurer to receive the proceeds of the revenue, keep a true account thereof, and “ report monthly to the auditor, the amount of money which he may have received, stating on what account the same was paid into the treasury.” E. S. ch. 13, §13-14. This change in the law seems to be conclusive of the question. The payment was made to the authorised agent of the State, and operated pro tanto to discharge the collector. The neglect of the treasurer to report the payment to the auditor ought not to prejudice the collector. The latter performed his whole duty by paying the money into the treasury. The remedy of the State is against the treasurer. We understand that the regulation prescribed by the act of 1833, has, notwithstanding the change in the law, been pursued until the present time; and this case forms' the only instance, in which payments have been made to the treasurer, without the filing of a duplicate receipt with the auditor. This practice, may with great propriety be sanctioned by the Legislature, by the re-enactment of the law of 1833. The practice operates as a salutary check on the treasurer. Under it, the books of the auditor will exhibit the true state of the receipts into the treasury, without regard to the monthly reports of the treasurer. The present case forcibly illustrates the propriety of the practice. ETo duplicate receipt was issued and filed with the auditor, and the treasurer failed to include the payment in his report to the auditor. In the settlement with the treasurer, the sum in question was not charged against him. If the treasurer omitted to report the payment, the State may yet recover the amount from his representatives, on the ground that it was not taken into consideration in the settlement.

Judgment must be entered for the defendants.

Judgment for defendants.


text:
    Abraham N. Ward, Appellant, v. William M. Owens et al., Appellees.
    APPEAL FROM CUMBERLAND.
    The statute authorizing testimony to he introduced orally in chancery, does not dispense with the necessity of incorporating the testimony in the record.
    This Court will not presume that any proof was made, that does not appear of record.
    All that is necessary for an understanding of this case, is set out in the opinion of the Court. The decree was ordered by Harlan, Judge, at the October term, 1850, of the Cumberland Circuit Court.
    Stuart and Edwards, for Appellant.
    Lincoln & Herndon, for Appellees.
   Treat, C. J.

This was a bill in chancery to set aside a conveyance. The answer denied the allegations of the bill, and the cause was at issue by the filing of a replication. A decree was entered for the complainant, which the defendant assigns for error. The record fails to show, that any evidence was given to sustain the averments in the bill. The statute authorizing testimony to be introduced orally at the hearing, was only designed to change the mode of taking proof in chancery cases, and does not dispense with the necessity of incorporating it into the record. The evidence, or the facts proved by it, ought to be stated in the record. This Court will not presume that any other proof was made than what appears in the record. Such was the express decision in the ease of White v. Morrison, 11 Illinois, 361. There is then no basis on which this decree can stand. It will be reversed, with costs, and the cause remanded for further proceedings.

Decree reversed.


text:
    Hathaway Linton, Adm’r, &c., of Royal A. Nott, dec’d, Pltff in Error, v. Valentine S. Anglin, Deft in Error.
    ERROR TO CLARK.
    Where a declaration avers that the cause of action arose in the county from which the process issued, and that the plaintiff resides in such county, process may issue to any other county.
    The Circuit Court having acquired jurisdiction to issue process beyond its territorial limits, the defendant may be served in any other county where lie may be found.
    Linton, as administrator of Nott, deceased, sued Anglin in the Clark Circuit Court, for the sum of $535 18, in an action of debt.
    The declaration avers that plaintiff resided in the county of Clark, at the time of the commencement of the suit. The process, which was a capias ad res: was issued to Coles county, and executed there. The pleadings were heard before Wilson, Justice, at May term, 1848. Linton sued out the writ of error. The errors assigned, are the overruling of the demurrer to the plea in abatement, and in not giving judgment for plaintiff, on the demurrer.
    S. T. Logan, for Pltff in Error.
    Lincoln & Herndon, for Deft in Error.
   Caton, J.

The declaration in this case, shows that the cause of action arose in the county .of Clark, and that the plaintiff was a resident of that county. This, according to the uniform decisions of this Court, authorized the process to be issued to a foreign county. The defendant filed a plea in abatement, averring that the writ was issued to, and served upon him in the county of Coles, and that he was not a resident of that county, to which a demurrer was filed, which was overruled by the ‘Court, and the plea held to be good.

This is assigned for error. The statute .provides that “ it •shall not be lawful for any plaintiff to sue a defendant out of the county where the latter resides, or may be found, except in ” certain specified cases, “when process may issue against the defendant, to the county where he resides.”

We have no doubt that the legislature intended to use the . word “ resides,” in such a sense as to include the place where the defendant, for the time being, might be, whether that was his permanent place of residence, or not. Were a different construction to prevail, transient persons would be placed on a better footing than permanent residents, which, taking the whole law together, we, think was not the intention of the legislature. The Court having acquired the jurisdiction to issue its process beyond its territorial jurisdiction, the object was to reach the defendant; and if he could only be reached at the place of his permanent residence, the object of the law in conferring the jurisdiction, would often be defeated. We think the demurrer should have been sustained. The case of Haddock v. Waterman, 11 111., 474, we think in point in this case.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    Albert G. Carle, Pltff in Error v. The People, Defts in Error.
    ERROR TO CHAMPAIGR.
    The proper mode of recovering a penalty from a person for voting, who does not possess the proper qualification, is by an action of debt.
    The facts of this case, are sufficiently stated in the opinion of the Court.
    A. Gridley and 0. Peters, for Pltff in Error.
    Ho indictment will lie against a person for voting, who is not qualified, but the remedy is by an action on behalf of the people to recover the penalty. Revised Stat., §20, ch. 88.
    The indictment is insufficient, because it does not show, that the election at which the voting took place was a legal election, or an election held in conformity to law: nor that the vote was received, or deposited in the ballot box, as required by the law of 1849; nor for whom he voted, whether for County officer or otherwise; nor that he knowingly, corruptly, or wilfully voted.

      McGuire v. The State; 7 Humph., 55; Lequat v. The People, 11 Ills., 330.
    The indictment does not show what was the want of qualification, whether non-age, non-residence, &c.
    D. Campbell, Dis-trict Atty., for the People,
    cited, Rev. stat, ch. 35, secs. 17, 20, 39, 40, 41; 2d Hawk’s, P. 0. ch. 25, §4; 1 Russel on Crimes, p. 9, 44, 47, 48, 49.-
   Treat, C. J.

The plaintiff in error was indicted and convicted, for voting at an election, without possessing the qualifications of a voter. The indictment was framed on the 20th sec. of the 37th chap, of the Revised Statutes, which reads thus: “If any person shall voto at any election, who is not a qualified voter, he shall forfeit and pay any sum not exceeding fifty dollars, nor less than twenty five, to be recovered in the same manner as other penalties under this chapter.” Upon a careful consideration of this section in connection with the other provisions of the chapter, we are clearly satisfied, that the penalty is not recoverable by indictment. By a reference to the other parts of the chapter, the intention of the Legislature will be apparent. There are five provisions in this chapter, in which penalties are imposed for the violation of particular duties connected with elections, in each of which it is declared, that the party offending, “shall forfeit and pay” a specified sum, “to be recovered by an action of debt.” The chapter also defines five distinct offences, which are punishable by indictment. Of one, it is provided that the offender “shall be fined, in the sum of one hundred dollars, to be recovered by indictment;” of three, “he shall be liable to be indicted,” and fined and imprisoned; and of the other, he “shall be liable to indictment,” and “fined in any sum not exceeding one thousand dollars.” The penalty in question falls directly within the first class of eases, and is recoverable in an action of debt, in the name of the People. The same language is employed in imposing this penalty, as in those for the recovery of which the action of debt is specifically given; and the direction as to the mode of recovering it, must be understood as ■referring to the remedy prescribed in these cases.

The judgment will be reversed.

Judgment reversed.


author: Trumbull, J.

text:
    Thomas Penny, Pltff in Error, v. Martin Graves, Assignee of John White, Deft in Error.
    ERROR TO SANGAMON.
    Although parol testimony is inadmissible to vary, contradict, or explain the terms of a -written agreement, a party may show by parol, that a note was given without consideration, or that the consideration has in whole or in part failed.
    Parol evidence may be received, to impeach the consideration of a note, but not to vary its terms.
    This suit was first commenced before a justice of the peace, and taken by appeal, to the Sangamon Circuit Court. On the trial of the cause in the Circuit Court, the plaintiff below offered in evidence, a note, with endorsements as follows:
    Alton, Dec. 30th, 1842.
    $52 13. Six months after date, for value received, I promise to pay George Wilson, and Andrew Beard, fifty-two, dollars—this being for 12 per cent, interest on account of hogs bought. Hiram Penny.
    Endorsement.—Feb’y 23d, 1844, for value received, we assign the within to James White, without any recourse back on us.
    G. Wilson.
    Andrew Beard,
    Endorsement.—For value received, I assign over the within note to Martin Graves, without any recourse back on me whatever. August 22d, 1849.
    James White.
    And closed his case.
    The defendant below, then introduced Bela C. Webster, who testified that the note was in his hand writing; that he was present at its execution, and knew all the circumstances under which it was given; recollected that the note was given to the payees, who were acting for themselves and some others, (of whom, Penny had purchased hogs, which he took to Alton,) with the distinct understanding, that in case certain notes, which were given by B. C. Webster & Co., to the persons from whom Penny bought the hogs, should be paid before, or at maturity, the amount in said note specified, nor any part thereof should be required to be paid by Penny, unless the persons aforesaid, should claim interest. The payees themselves, according to his recollection, stated they should not claim any of the amount of the said note, unless claimed by the others. The notes of Webster & Go. were paid before maturity. No one of the persons claimed interest, so far as he knew. Several of them, when being paid, or about that time, said that they were satisfied, without any interest from Penny. The note was executed at the suggestion of Penny, in order that satisfaction might be given to the persons, of whom the hogs were purchased, with the undertanding aforesaid.
    Alexander Penny was sworn, and testified to the same facts as Webster.
    Plaintiff objected to the testimony of these witnesses when offered. It was then agreed by the parties, that the testimony should go the jury, and they might render a verdict in the case, which, if for the defendant, should be subject to the opinion of the Court, as to the admissibility of the testimony of Webster and Penny. The jury rendered a verdict for the defendant. The judge, Davis, presiding, decided that .the testimony was inadmissible, and rendered a judgment for the plaintiff below, for the amount of the principal and interest of the note.
    To which opinion of the Court, excluding the testimony of Webster and Penny, and rendering a judgment for the note aforesaid, the said Penny excepted, and brought the cause to this Court.
    Stuart & Edwards, for Pltff in Error.
    Lincoln & Herndon, for Deft in Error,
    cited 1 Greenleaf’s Ev., §275, 281; 2 Gil., 266; 12 Metcalf, 138, 275, 545; 9 ibid., 39; 7 Blackford, 378, 491; 1 Denio, 400; 5 Hid., 166.
   Trumbull, J.

The difficulty in this case arises not so much in determining what the law is, as in applying it to the particular case.

The rule is well settled, that parol testimony is inadmissible to vary, contradict, or explain, the terms of a written agreement, and yet it is allowable to show by parol, that the consideration of a promissory note has wholly or in part failed, or that it was given without consideration. It is not always easy to distinguish between these two classes of evidence and determine to which, particular testimony belongs, but when that is determined, the law is well established.

Did the evidence offered in this instance, go to impeach the consideration of the note, or to vary its terms? If the former, it ought to have been admitted; if the latter, it was properly excluded.

The consideration of the note, was an extension of time to the maker within which to pay certain sums of money, which he was owing the payees and others, and that this was a good consideration cannot be questioned. The notes of Webster & Go., were on time, and Penny gave the note in question, in consideration that the persons he was owing would wait with him, till those notes fell due. The evidence offered did not go to show that Penny did not get the benefit of the extended time, or that it was in any manner abridged, consequently it did not tend to show that the consideration of the note had in any manner failed. The payment of the notes of Webster & Co., at or before maturity, had nothing to do with the consideration of the note in question. They were not parties to it, but it was given by Penny on account of an arrangement between him and the payees, with which Webster & Co., had nothing to do.

The effect of the parol evidence, was to show that the note,, although absolute in terms, was in fact conditional. The object of offering it, manifestly was to defeat a recovery altogether, and such would be the consequence if it were admissible. Had Penny intended, that the note should not be collected in case the notes of Webster & Co. were paid at maturity, and the persons from whom he had purchased hogs did not claim interest, he should have had such intention expressed upon the face of the-note; not having done so, he cannot now be permitted to vary or change the terms of his written contract by parol evidence, upon the familiar principle that the writing affords the only evidence of the terms and conditions of the contract. Lane v. Sharp, 3 Scam., 567; Mager v. Hutchinson, 2 Gil., 266; Ely v. Kilborn 5 Denio, 514; Erwin v. Saunders, 1 Cowen, 249; Graves v. Clark, 6 Blackford, 183.

Judgment affirmed..