text:
    Charles W. Hunter, Plaintiff in Error, v. Thomas Middleton, Defendant in Error.
    ERROR TO MADISON.
    The acknowledgment and recording of a town plat, vests the legal title to the ground appropriated to streets and alleys in the corporation of the town, for the uses and purposes of the public.
    The decision in the case of Canal Trustees v. Haven, 11 Ill. 554, cited and confirmed.
    The title to streets and alleys may revert to the original proprietor, on the destruction of the corporation, or on abandonment of the ground appropriated to streets and alleys, but until such reversion, the fee is out of the original proprietor.
    The person making such plat and dedication, not having the legal title nor exclusive right of possession, cannot bring an action of trespass for an injury to the soil or freehold, as in the case of highways.
    This is an action of trespass quare clausam fregit, brought by the plaintiff against the defendant, in the Madison County Circuit Court, at the August term, A. D. 1850, for erecting a lime kiln for the purpose of burning lime, and for quarrying and carrying away rock and converting the same to his own use, upon the close of the plaintiff; to which the defendant pleaded not guilty, and thereupon issue was joined to the country. A trial was had at the March term, A. D. 1851, by a jury before Underwood, Judge, which resulted in a verdict and judgment for costs, in favor of defendant.
    Upon the trial of the cause, it appeared, from the evidence introduced, that the plaintiff was the owner in fee simple, of a part of fractional section 13, township 5, north of range 10, west of the third principal meridian, particularly described by metes and bounds; that in the year 1820 he laid out and platted a part of said lands into blocks and lots with streets and alleys marked thereon, which plat was duly acknowledged in July, 1825, and recorded in the office of the Eecorder of Madison county, on the 17th day of August in the year 1825, as an addition to the town, now city of Alton; that in the year 1835 the land embraced in said plat was platted again with some alterations, but that these alterations were not upon the locus in quo, which new plat was acknowledged on the 15th day of February, 1837, and recorded in said Eecorder’s office in the same year; and that the trespasses complained of, were for quarrying, digging and carrying away large quantities of lime rock from a stone quarry in Pear street, between blocks numbered 27 and 28, and in an alley laid out and platted on the recorded plats of said addition, which alley extended through blocks 28 on said plats, and that the rock was quarried and taken away, for the purpose of being burned and made into lime by said defendant, without the consent of said plaintiff.
    Evidence was also offered by the plaintiff, to prove that the street and alley above described, were and are impassable (as such street and alley) without being improved; that large quantities of rock can be taken out of said quarries on the locus in quo, without operating in the least against the use of said street and alley, as public highways, and in fact, that the excavation and quarrying of said rock is absolutely necessary, in order to reduce said street and alley to the grade established by the city of Alton; to all which evidence defendant objected being heard, and moved that the evidence already introduced should be excluded from the jury, which objection the court sustained, and refused to let the evidence thus offered go to the jury, and excluded from the jury the evidence then already given; and there being no evidence before the jury of any trespass except as aforesaid, they returned a verdict for defendant; to all which decisions and opinions of the court, the plaintiff at the time excepted and now brings his case into this court.
    David J. and Henry S. Baker, for plaintiff.
    The dedication by the owner of lands which he lays out into town lots, streets and alleys, &c., of the streets and alleys to the public, as such, does not deprive him of his ownership in the minerals and quarries and strata of lime rock under the surface of such streets and alleys, and he can maintain an action against those persons who, without his license, dig out and carry away the minerals and rock; unless dug out and carried away by the authority of the town, for the purpose of grading and improving the streets and alleys, when such acts may be considered as authorized by and incident to the dedication.
    The lord or owner of the soil of the highway shall have an action of trespass for digging the ground. 2 Str. 1004; 8 E. 4, 9; Cortelyou v. Van Brunt, 2 Johns. R. 357.
    The law is well settled, that when a mere easement is taken for a public highway, the soil and freehold continue in the owner of the land, encumbered only with the easement, or right of passage in the public. Fairfield v. Williams, 4 Mass. 427 ; Pearley v. Chandler, 6 Id. 454; Stackpole v. Healey, 16 Id. 33; Mayor of Savanah v. Steamboat Company, R. M. Charlton’s Rep. 342; United States v. Harris, 1 Sumner, 21, 37. See the doctrine in 3 Kent, 432, 433, and notes.
    The dedication of a street to the public, is only a dedication of the right of passage to the public, so far as the public have occasion to use it, and was never understood, to be a transfer of an absolute property in the soil. City of Cincinnati v. Lessees of White, 6 Peters, 437.
    When a highway is laid out over the land of a private person* the public acquires no more than a right of way or easement and the title of the original proprietor continues; he may use the land in any way not inconsistent with the public right; is entitled to all mines, &c., and may maintain trespass or ejectment in relation to it. Jackson ex dem. Geates et al. v. Hathaway, 15 Johns. 447. Platt, J. delivering the opinion of the court in this case, says, “ Highways are regarded in our law as easements. The public acquires no more than the right of way, with the powers and privileges incident to that right, such as digging the soil and using the timber and other materials found within the space of the road, in a reasonable manner for the purpose of making and repairing the road and its bridges. When the sovereign imposes a public right of way upon the land of an individual, the title of the former owner is not extinguished, but is so qualified that it can only be enjoyed subject to that easement. The former proprietor still retains his exclusive right in all mines, quarries, springs of water, timber and earth, for every purpose not incompatible with the public right of way. The person in whom the fee of the road is, may maintain trespass, ejectment, or waste,” &c. See also Oakley v. Stanley, 5 Wend. 523; In the matter of Lewis Street, 2 Wend. 472; Noyes v. Chapin, 6 Wend. 464; Holiday v. Marsh, 3 Wend. 142; In the matter of Seventeenth Street, 1 Wend. 262; Livingston v. Mayor of New York, 8 Wend. 85.
    The fee of the soil remains in the original owner, where a public road is made upon it, but the use of the road is in the public. The owner parts with the use only; for if the road should be vacated by the public, he resumes the exclusive possession of the ground, and while it is used as a highway, he is entitled to the timber and grass which may grow upon the surface, and to all minerals which may be found beneath it. Barclay et al. v. Howell’s Lessees, 6 Peters, 498.
    The owner of the soil of a highway has the same remedies, by action of trespass or ejectment, to prevent encroachments and to defend his rights against the adverse occupancy of another as the owners of land not subject to any easement. Reed v. Leads, 19 Conn. R. 182, cited in 1 U. S Law Magazine and Examiner, 100.
    There is no evidence of the acceptance of the dedication of the locus in quo, either by the use thereof as such street and alley, or by the purchase of lots in said addition, and until the acceptance the plaintiff’s title and right of use remain as though no dedication had been proposed or marked on the plat.

      “ The mere laying out a town upon a man’s own land and by his own private act, and the making and recording a plan of the town, may not, and as we suppose, do not, of themselves, conclude him to any extent. The land, notwithstanding these acts, is still his own, and neither any other individual, nor the public, have any right to interfere with such use of it as any man may lawfully make of his own,” &c. Marshall, C. J., in the case of Rowan’s Executors v. The Town of Portland et al., 8 B. Mon. Rep. 236.
    Davis and Edwards, for defendant.
   Treat, C. J.

We adhere to the opinion, expressed in the case of the Canal Trustees v. Havens, (11 Ill. 554,) that the acknowledgment and recording of a town-plat vests the legal title to the ground embraced by the streets and alleys in the corporation of the town. The statute in substance declares, that these acts of the proprietor shall operate to vest the fee in the corporation, in trust for the uses and purposes of the public. By making and recording the plat, he voluntarily parts with the title to the streets and alleys, and transfers it to the corporation. The legal effect is precisely the same as if he had made a conveyance directly to the corporation. . The latter holds the legal estate for the benefit of the public. The title may, perhaps, revert to the former owners on the destruction of the corporation, or on the abandonment of the ground for the purposes of streets or alleys. But, until the estate is thus defeated, the fee is as completely out of him as if he had made an absolute and unconditional conveyance. While the fee continues in the corporation, he has no greater interest in the streets and alleys than any other person — the right of passage over them. Having neither the legal title nor the exclusive right of possession, he cannot bring trespass for any injury to the soil or freehold. He has no title to be assailed, no possession to be invaded. A party who conveys away a tract of land in trust, cannot maintain trespass or ejectment for any injury thereto until the purposes of the trust are accomplished and the title has reverted. And this case is not different in principle. The evidence clearly showed that the plaintiff had no cause of action. The acts complained of affected the corporation only, and for which it alone could seek redress. This is not like the case of a highway, in which the public acquire but a right of way or passage. The title still remains in the former proprietor, or his grantor, burdened only with the public easement, and he can maintain an action for any injury to the soil not resulting from the legitimate use of the highway.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    John Ross, Plaintiff in Error, v. Victor Buchanan et al., Defendants in Error.
    ERROR TO LAWRENCE.
    The filing of a bill in chancery is the commencement of a new suit before another tribunal, and the respondent must be brought into court by process, notwithstanding the bill may be connected with a suit at law between the same parties in the same court.
    A bill in chancery should be dismissed for want of equity if it does not disclose other grounds for relief in a suit at law than may be interposed as defences at law.
    In courts of concurrent jurisdiction, the one first obtaining jurisdiction will retain it, though a court of equity may interfere where there are equitable defences unavailable at law.
    Buchanan and others filed this bill in the Circuit Court of Lawrence county, and obtained an injunction upon it restraining Ross, who had brought suit as cashier of one of the branches of the Bank of Indiana, against the defendants in error.
    Harlan, Judge, at September term, 1850, sustained the bill, and entered the decree complained of and sought to be reversed by this writ of error.
    There were not any steps taken to bring Ross, the plaintiff in the suit at law in the Circuit Court of Lawrence county, into the case instituted upon the bill in chancery, and the decree appears to have been entered against him, upon the assumption that he was bound to take notice of it without service of process upon him.

      The bill charges that defendants became sureties for one William Baldwin for $2,500, by note dated in February, 1848, payable in four months to the Bank of Indiana, at Vincennes.
    When the note fell due, Baldwin, and defendants as sureties, renewed their note in liquidation of the first, and again at four months. On or about 12th October, 1848, Baldwin called on defendant Buchanan to sign another note in renewal of the last note, which he was still unable to pay, and he stated that it was his purpose to obtain the signature of defendant Vandermark. Defendant Buchanan signed this third note for that purpose, relying upon his so procuring Vandermark’s signature. Defendants heard no more of it until some time in March, 1849, when Baldwin committed suicide from supposed pecuniary embarrassments. Defendants discovered that said last note had never been presented to Vandermark, and that he had never-signed it. This, with information of the existence of such a note’s being held by the bank against all three, induced defendants to believe that Vandermark’s name had been forged at the second and last renewal.
    They had no notice, and heard nothing until November, 1849, when they received notice from the bank, and they attended at the bank in order to adjust the matter and prevent suit. Without particularly examining the note claimed to be held against them, they renewed the debt by giving then own note, and stood upon the note of the three for $2,134, dated 12th November, 1849, and due 120 days after date. They stated that the date of said last note had been altered without their knowledge or consent, and this knowledge of its alteration was first obtained after they had taken it up'by giving their own. Being ignorant of the effect of the alteration, they endeavored to collect the amount of the note of Baldwin’s administrator, two suits for which are now pending. That Ross, cashier of the bank, has instituted suit to recover their note, which is now pending in this court. That the note of Baldwin and defendants of 9th October, 1848, was not executed by defendants at that date, but was executed in June, 1848, and was presented by Baldwin to the bank, with four months’ interest on $2,500; but the bank refused to accept the note unless Baldwin would pay $500 on it. Baldwin was east at this time, and when he returned, that he and the officers of the bank concluded together, and without the knowledge or consent of defendants, changed and altered the date from 25th June, 1848, to 9th October, 1848, thereby charging defendants wrongfully. That Baldwin, and Ross, cashier, were guilty of fraud and collusion in so altering, &c., and it became void, and so the last note by defendants was without consideration and void by reason of fraud.
    Defendants offer to dismiss their suits against Baldwin’s administrator, and surrender Baldwin’s note to the bank. They pray that Ross be made a party and answer, &c. They also pray an injunction for the present, and to be made perpetual at the hearing, and said notes be annulled, &c., and for other relief and all necessary aid.
    Decree for perpetual injunction, and that said notes of defendants be cancelled, and that Baldwin’s note be returned to the bank without power or right to collect it of defendants.

      Assignment of Error.

    1st. There was no summons issued or served, and no appearance.
    2d. Decree against plaintiff of perpetual injunction, cancellation, and for costs.
    3d. There is no equity in bill, all the matters being defences at law.
    4th. There was no injunction-bond required or given.
    5th. Injunction ought to have been dissolved, bill dismissed, and costs given plaintiff.
    W. B. Scatbs and A. Kitchell, for plaintiff in error.
    A summons is required to bring the party into court. Rev. Laws, p. 93, § 5; 4 Paige, 439; 5 Paige, 85; 16 Vesey’s Rep. 338; 3 Brock. C. C. R. 476.
    The suit at law is a distinct one from the proceeding in chancery, and in a distinct court and jurisdiction.
    This is not a bill for a discovery; but admitting it to be so, defendants have no right to the disclosure, because it would criminate the plaintiff in the suit at law with forgery. Fonblanque’s Equity, 661, 662.
    Courts of equity will not interfere where the party has his complete remedy at law. Story’s Equity Pl. 505 to 518: see § 472 to 485 inclusive; Mitford’s Eq. Pl. 111, 112; 1 Madd. Ch. 193; 1 Vern. R. 441; 1 Dick. 55; 1 P. Wms. 117; 1 Atk. R. 571.
    A bill of discovery does not pray relief, and relief is never granted on such a bill, but merely discovery. Story’s Eq. Pl. § 311, 312, 321, 322, 324, 483.
    C. H. Constable, for defendants in error.
   Treat, C. J.

This decree must be reversed on two grounds:

First. The court proceeded to dispose of the case without obtaining jurisdiction of the person of the defendant. He was not served with process; nor did he enter his appearance. He should have been brought before the court by the service of process, if a resident of the State; or by the publication of notice, if a non-resident. The fact that he was the plaintiff in the action at law, did not dispense with the necessity of bringing him into court as a defendant in the suit in chancery. Such is the uniform practice in courts of equity, and it has not been changed by our statute. The filing of the bill was the commencement of a new proceeding before another tribunal, and the complainants were bound to bring the defendant regularly into court as in other cases. The two tribunals, although presided over by the same judge, possess separate and distinct jurisdictions.

Second. The bill makes no case for the interference of a court of equity. It discloses no ground for relief, of which the complainants may not equally avail themselves in the action at law. If the note was materially altered after its execution, and without their consent, they had a perfect legal defence to any action that might be brought upon it. If the fact was unknown to them when they executed the note in controversy, and if they are not thereby concluded from taking advantage of the alteration, they may still interpose the defence in the action at law. And the defence, if now available, can be as well made at law as in equity. A court of equity has not conclusive jurisdiction of the case made by the bill. If it has jurisdiction, it is but concurrent with a court of law. The rule in cases of concurrent jurisdiction is, that the tribunal which first acquires jurisdiction of the subject-matter, must proceed to a final disposition of the case. A court of equity will not assume jurisdiction where it has first been obtained by a court of law, unless there is some equitable circumstance in the case, of which the party cannot avail himself at law. See Mason v. Piggott, 11 Ill. 85, and cases there cited. The present case is not within the exception to the rule.

Nor can the bill be sustained as a bill for discovery. It has none of the distinctive features of such a bill. It does not call on the defendant to make discovery of facts to aid the complainants in establishing a defence to the action at. law, but it seeks to oust the court of law of its jurisdiction, and transfer the whole case to a court of equity.

The decree will be reversed, and the bill dismissed.

Decree reversed and bill dismissed.


author: Trumbull, J.

text:
    Valentine Owens et al., Plaintiffs in Error, v. The People, &c. for the use of Massac County, Defendants in Error.
    ERROR TO WILLIAMSON.
    The statute in reference to negroes and mulattoes, does not authorize the taking of a bond, until the negro or mulatto has produced a certificate of his freedom, and such only have the privilege of residing here as can furnish evidence of their freedom, and can give bond for their good behavior, and that they will not become a charge to the county.
    This was an action of debt, commenced in the Massac Circuit Court; and taken to the Marion Circuit Court on change of venue. The action was upon a bond executed to the people of the State of Illinois, by Thomas Hobbs, a man of color, and Valentine Owens as his security. Which bond had the following conditions: — That whereas Thomas Hobbs, a colored man, was brought into this State by a woman calling herself Hobbs, and there left; and said negro, to wit, Thomas Hobbs, is old, &c. Now if said Hobbs shall behave himself in a decent manner, and act as the law requires towards all the people of this State, and shall not become a county charge, then in that case this bond is to be void; otherwise to remain in full force and virtue.
    The declaration contains but one count in the usual form, with breaches in substance : That the defendants failed to keep the conditions of said bond. That the said county of Massac was compelled to lay out and expend some $37 for the support, nursing, and maintenance of the said Hobbs, after the execution of said bond. That the County Court of said county of Mas-sac made orders for the payment of nursing bills, doctor bills, &c., amounting to $37. To which declaration the defendants demurred, and craved oyer of the bond, which demurrer was overruled by the court.
    The defendants filed four pleas. 1st. That said Thomas Hobbs was, at the time of executing said bond, a slave, &c. 2d. That at the time said defendants executed said bond, the said Thomas Hobbs, one of the defendants, did not produce any certificate of his freedom authenticated as the statute requires; and that he was, in fact, a slave brought to this State by his mistress, and the bond was therefore void. 3d. The said defendant, Owens, for separate plea, says that soon after the execution of said bond, and before the commencement of this suit, and before Hobbs became a county charge, the said defendant, Hobbs, was offered to be given up by the defendant, Owens, to the proper authorities, but that they refused to receive him. 4th. That the law under and by virtue of which said bond was taken was unconstitutional, and therefore the bond was void.
    To which several pleas demurrers were filed. The demurrers were sustained by the court, and the defendants electing to stand by their pleas, the Circuit Court of Williamson county, Denning, Judge, presiding at September term, 1851, rendered judgment for one thousand dollars, the penalty of the bond; to which the defendants excepted. The plaintiffs in error assign for error, the sustaining the demurrers to pleas, rendering judgment without assessing damages or calling a jury for the purpose, and overruling motions in arrest of judgment and for new trial.
    T. G. C. Davis and R. F. Wingate, for appellants.
    The declaration is bad in substance. It appears, upon its face, that the contract, which is made the foundation of the action, was made in contravention of the provisions of the statute, entitled “ Negroes and Mulattoes,” § 1, 2, 3, 4, 5, 6, 8, and 9 of said act, Rev. Sts. 1845, p. 386,387. A demurrer may be for insufficiency, either in substance or in form. Stephen on Pleading, 138; 1 Chitty, Pl. 661, 665.
    The defendants’ demurrer to the declaration ought to have been sustained by the court, because it appeared on its face, that Hobbs was brought into the State by a woman calling her name Hobbs, and left here by her; and there is no averment or allegation in the declaration that Hobbs produced a certificate of his freedom to the County Commissioners’ Court, before or at the time of the execution of the bond counted on. See Rev. Sts. 1845, as above referred to. There is nothing in the bond, as set out in the declaration and other pleadings in the cause, which shows that Hobbs produced the certificate required by the act “ Negroes and Mulattoes,” nor is there an allegation of his freedom to be found in the declaration.
    The plaintiffs’ demurrers to the defendants’ pleas, open the whole record to the inspection of the court, and the judge ought to have given judgment for the party, who, from all that appeared in the record, was entitled to it. Stephen on Pleading, 143; 1 Chitty’s Pl. 668; 3 Cranch, 235; 4 Hen. & Munford’s Rep. 110.
    A fault in substance in pleading, is not cured by pleading over. 1 Chitty’s Pl. 671; Stephen on Pleading, 147.
    The defendants’ first and second pleas were clearly good. They showed, that the very foundation of the action was illegal and void. A bond made in contravention of the provisions of a statute or in violation of the public policy, is void. Chitty on Contracts, 694; 17 Mass. 280; 5 Dana, 261; 4 Hen. & Munford, 282.
    The Damages. When the parties have agreed, that the one shall pay to the other a specified sum of money, in the event of a breach of the provisions of the contract, the courts will, if possible, view the sum reserved as in the nature of a penalty. 8 Mis. 470; 5 Met. 61, 66; 5 Cowen, 144.
    R. S. Nelson, for appellees.
    Supposing the plaintiffs in error have a right to go back to the declaration in search of defects, on demurrers to their pleas, and after demurrers general and special to the declaration have been overruled, which is questionable, (see 4 Gilman, 40; 2 Ibid. 302; 9 S. & M. 451, 470; 9 Mis. 502,) it must not only be for matter of substance alone, but for matter intrinsic, and if they relied upon any extrinsic matter, such as a defect in the consideration of the bond, they ought to have craved oyer of it, and the neglect to do so is fatal. 1 Chitty’s Pl. 430, 431, 432; 2 Saunders, 60; Lord Raymond’s Rep. 1135; 1 Saunders, 9, 317 ; 2 Stephens, N. P. 1260.
    The plaintiffs in error cannot object, that the bond is not in exact compliance with the statute, because they have not set it out on oyer; but if they could, under the state of pleading, object for matter dehors the record, it cannot avail them to defeat the right of recovery in this action, for the bond is a good statutable bond. 3 Scam. 349; 1 Watts & Serg. 261; 3 Serg. & Rawle, 394; 1 U. S. Digest, 307; 17 Wendell, 502.
    The second plea is contrary to a conclusive presumption of law ; this presumption exists in all States where slavery is not tolerated. People v. Thornton, 11 Ill. 336; Prigg’s case, 15 Peters, R. 419; Law of Slavery, 370, 373, 374, 379; 8 Peters, 238.
   Trumbull, J.

Waiving a decision of the constitutional question which has been raised, it is clear, that the judgment in this case cannot be sustained. The statute in reference to negroes and mulattoes, (Rev. Sts. ch. 74,) was mánifestly designed to discourage the settlement of negroes within this State. The eighth section of that act, inflicts a penalty upon any person bringing a black or mulatto person into the State, in order to free him from slavery. The fifth section provides for arresting, imprisoning, and hiring out any such person found in the State, not having a certificate of his freedom; and, although this section has been held to be invalid, in the case of Thornton, 11 Ill. 332, by reason of its conflict with the exclusive jurisdiction of Congress over the same subject, still it is proper to refer to it, as indicating the design of the legislature in the enactment of the other sections of the same law.

The first section declares, that “ no black or mulatto person shall be permitted to reside in this State, until such person shall produce to the County Commissioners’ Court, where he or ghe is desirous of settling, a certificate of his or her freedom, which certificate shall be duly authenticated in the same manner that is required to be done in cases arising under the acts and judicial proceedings of other States. And until such person shall have given bond, with sufficient security, to the people of this State, for the use of the proper comty, in the penal sum of one thousand dollars, conditioned that such person will not, at any time, become a charge to said county, or any other county of this State, as a poor person, and that such person shall, at all times, demean himself or herself in strict conformity with the laws of this State.”

It is under this first section that the bond sued on was given. It differs somewhat from the bond required by the statute, by omitting to state, that it was given for the use of (Massac) the proper county, also the words, “ as a poor person,” and is in some other respects variant from the law.

It is unnecessary to determine upon the effect of these variances, because, to have authorized the taking of even a statutory bond, Hobbs, the negro, must first have produced to the County Commissioners’ Court, the requisite certificate of his freedom. The legislature never intended this State to become a rendezvous for negroes and mulattoes of every description, who could give the required bond, but limited the privilege of residing here to such only as could furnish • evidence of their freedom, and then give bond and security not to become a charge to the county as a poor person, and for their good behavior. The clerk had no authority to take or approve the bond of a black person, who did not first furnish the evidence of his freedom, which the law required; and a bond given by a negro not furnishing this evidence, would not have authorized his residence in the State, or have afforded him, or the person bringing him here, any protection.

The first plea alleges, in substance, that Hobbs, at the time of the execution of the bond sued on, was a negro slave ; and second, that he was a negro slave, brought to this State by his mistress, and that he did not produce any certificate of his freedom, as required by the statute.

These pleas, if true, which the demurrer admits, show, that the bond was taken in a case not authorized by law. Upon such a bond no recovery can be had, and the court erred in sustaining the demurrer to these pleas.

The third plea is clearIy defective, and to it the demurrer was properly sustained.

Judgment of the Circuit Court reversed, and cause remanded.

Judgment reversed.


author: Caton, J.

text:
    Daniel Hyde, Plaintiff in Error, v. Daniel F. Pryor, Defendant in Error.
    AGREED CASE EROM POPE.
    Under the estray laws, a party who has not given the required notice, cannot acquire the property, by lapse of time or continued possession.
    Nor can such a party recover the property by an action of trover, from another, to whom it has escaped, and who has advertised as the law requires.
    One who retains estrays, without giving notice as the law directs, is a tortfeazor.
    This case was submitted upon the following agreement:
    It is agreed, in this case, that the evidence showed, that an estray horse came to the possession of Pryor, where it remained more than a year, without being posted and advertised. That without having been posted and advertised, the horse escaped from Pryor’s possession, and went upon the premises occupied by Hyde, who knew that the horse had been and was in the possession of Pryor up to the time of his escape, and that Pryor had not posted and advertised him. That Pryor demanded the horse of Hyde, and that Hyde refused to give him up, because the horse was an estray when he came into the possession of Hyde, and Pryor had not posted or advertised the horse, although he had been in his possession more than a year. Hyde posted and advertised the horse immediately after he came into his possession, though not before Pryor demanded the horse. The Circuit Court gave judgment, the case having been submitted to the judge (Denning presiding,) for Pryor. Was not this judgment erroneous ?
    The cause was heard at May Term, 1850, of the Pope Circuit Court. The action was for trover and conversion.
    J. GK C. Davis, for Hyde,
    Cited 1 Chitty’s Pl. 170, 183; 7 Cowen, 328; 14 Johnson’s Rep. 132; Rev. Stats, p. 227, Title Estrays, § 1, 11.
    W. Sloan, for Pryor.
   Caton, J.

The animal, for the conversion of which the action was brought, was taken up as an estray, and retained by the plaintiff below, for more than a year, without his having posted and advertised it, as the laws required. It then escaped from the plaintiff, and went upon the premises of the defendant, who took it up, and advertised it as an estray; but previous to the advertisement, the plaintiff demanded the animal of the defendant, who refused to surrender it. In this he was perfectly justified. By neglecting to advertise the estray, the plaintiff not only acted in violation of law, but became liable to a penalty imposed by the statute. Sec. 16, chap. 39, Rev. Stats.

The eleventh section of that chapter provides, that “if no owner appear and prove his property, within one year after the publication is made, the property shall be vested in the taker-up.” But in this case, the plaintiff had never made the publication, and without that, no lapse of time or continued possession could vest the property in him. He neglected an important duty imposed by the laws, which was, to notify the owner of the property, that it was in his possession; and, after such neglect, his possession became tortious. To hold, that he could acquire a title to the property by his illegal act, would be offering a premium for the violation of the laws. The defendant did no more than his duty, by taking up the estrays and advertising them, that the- owner might recover his property.

Let the judgment be reversed with costs.

Judgment reversed.


author: Per Curiam.

text:
    The People, ex relatione Thomas J. Gillinwater, v. The Mississippi and Atlantic Railroad Company.
    ERROR TO EEEIEGHAM.
    A proceeding by quo warranto is a prosecution which must be carried on in the name of the people.
    A demurrer to a plea reaches a defect in the information.
    At September term, 1851, of the Effingham Circuit Court, Gillinwater filed an information against the Mississippi and Atlantic Railroad Company, commencing as follows : “ In the Circuit Court of said county, Alfred Kitchell, State’s Attorney for the Fourth Judicial District of the State of Illinois, who prosecutes in behalf of the people of the State of Illinois, on the relation of Thomas J. Gillinwater, of the county of Effingham, aforesaid, comes here into Court and gives the Court to understand and be informed,” that on, &c., a railroad company, named, &c., was formed in the town of Vandalia, &c., by the adoption of articles of association, in conformity with the act to provide for a general system of railroad incorporations. The information proceeds to set out the organization of the company, and the franchises usurped; and then closes as follows : “ And the said State’s Attorney upon the relation of the said Thomas J. Gillinwater, further gives the Court here to understand and be informed that the said president and directors of the said Mississippi and Atlantic Railroad Company are still continuing unlawfully to hold and usurp their offices and franchises aforesaid, and to unlawfully intrude upon and hold possession of the premises aforesaid, as is above stated, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Elinois.”
    To this information the company filed a plea, averring that their charter was not dissolved, denying all usurpation, &c. To this plea a demurrer was filed. The Court, Harlan, Judge, presiding, overruled the demurrer, and dismissed the information. The relator brought the cause to this court, assigning for error the overruling of the demurrer and the dismissal of the information.
    A. Kitghell, for the relator.
    W. B. Scates, C. H. Constable, E. Rust, and J. G. Marshall, for the defendants.
   Per Curiam.

The constitution declares that “ all prosecutions shall be carried on 1 in the name and by the authority of the people of the State of Illinois.’ ” This court held, in the case of Donnelly v. The People, 11 Ellinois, 552, that a proceeding by quo warranto was a prosecution within the intent and meaning of that provision. The information in this case does not run in the mode prescribed. It is, therefore, fatally defective; and it becomes unnecessary to inquire into the validity of the plea. If the plea should be held insufficient, no judgment could be entered against the defendants. The demurrer extends beyond the plea, and reaches the defect in the information.

Affirm the judgment.

Judgment affirmed.


text:
    Thomas T. Bonham, Plaintiff in Error, v. Andrew J. Galloway et al., Defendants in Error.
    ERROR TO WABASH.
    It is erroneous to enter a decree ascertaining the amount due a party and directing the payment of it, when that party is not in court.
    A cause of action against the principal debtor in favor of the surety, does not accrue until the surety has paid the debt.
    A gave a mortgage to B to indemnify B in case he should have to pay the debt of A, conditioned that if A should pay and satisfy his note, by renewal or otherwise, then to be void. A renewed his note with different securities; thereupon B assigned the mortgage to the new securities.

      Held, that the mortgage could not be assigned by B so as to cut off the intervening rights of other mortgagees, and that the rights of B ceased upon the renewal of the note, a transfer to others not having existed in contemplation of the parties at the time of the execution of the mortgage.
    All the parties in interest should be made parties to a bill in chancery, unless some reason is shown for not doing so.
    In this case the complainant filed his bill on the chancery side of the Wabash Circuit Court, praying the foreclosure of a mortgage. To such bill the defendant Galloway, who was the only defendant, presented his plea, setting forth the fact, that previous to the execution of the mortgage sought to be foreclosed, being indebted to the president, directors, and company of the State Bank of Illinois, he, the said defendant, applied to one James Mahon to become his surety to said corporation for the payment of his debt. That Mahon agreed to do so on the execution of a mortgage to him on the same premises set forth in complainant’s bill, and sought by him to be subjected to sale, conditioned to save him harmless; which was done, and such mortgage duly executed and recorded, and in full force at the time of the execution of mortgage to complainants. That afterwards said Mahon, wishing to retire from his position as surety, after the execution of complainant’s mortgage, and on the renewal of said defendant’s note to the bank, proposed to and procured one Elijah Harris and one Hiram Bell to become sureties for this defendant in his stead, they agreeing to do so on being seemed by a transfer of Mahon’s said mortgage of indemnity to them, and that such transfer was with defendant’s consent. That said Harris and Bell became sureties, and such transfer was made by Mahon. That the debt due the bank was still wholly due and unpaid, and that, therefore, said Harris and Bell should be made parties, co-defendants, with him, as he is advised, &c. All of which facts defendant avers to be true, &c., and prays the judgment of the court, &c. To this plea, the complainant, by his solicitor, demurred; upon joinder in which the demurrer was overruled, and leave given to complainant to amend his bill, and the cause continued. Afterwards, on the 24th June, 1845, filed in said court his amended bill, which sets sets forth an indebtedness from defendant, Galloway, to complainant, in the sum of five hundred dollars; and that, in order to secure the same, on the 23d of May, 1840, that the said Galloway executed a mortgage to the complainant, conveying, &c., upon the condition set forth, the northerly halves or moieties of inlots Nos. 313 and 315 in the town of Mount Carmel, county of Wabash, and State of Illinois. That the condition of said mortgage was broken, and the estate of complainant to said lands become absolute at law; that the whole of said five hundred dollars, with a large arrear of interest, was then due and owing on the security thereof, and charging that Galloway ought to pay the same, or the said lands sold, &e. The amended bill proceeds to set forth, further, that one James Mahon also holds a mortgage on said premises, dated the 11th day of March, A. D. 1840, duly recorded, &c., which was assigned by said Mahon to one Hiram Bell and Elijah Harris; and the complainant charges, that when such last-mentioned mortgage was so assigned, the same was fully discharged, and that such transfer was made in fraud of the right of complainant without his knowledge, and without any consideration moving from said assignees, or others for them. The prayer of the bill is in the usual form, asking an account of the sale of the mortgaged premises, &c.
    On the 18th day of April, 1846, Hiram Bell, one of the defendants, by E. B. Webb, Esq., his solicitor, filed his answer to said complainant’s bill, which by agreement is regarded as the answer of his co-defendant, Harris, also; by which answer, said defendants, Bell and Harris, neither admitting or denying complainant’s rights under his said mortgage, set up the mortgage to Mahon, the transfer of the same by Mahon to them and one Abner Armstrong, on their becoming sureties for and at the request of Galloway, to the bank in lieu of Mahon, who declined remaining his surety to such bank, as contemplated in said mortgage of indemnity, &c. That they renewed the note to the bank; and that, in consideration of such renewal and his release, said Mahon, on the 3d day of October, A. D. 1840, by indorsement, assigned his said mortgage to them. That such transfer was intended to place said defendants and Armstrong in the stead of said Mahon, as security, and to protect them by said mortgage, which was intended to be retained in full force. Said answer denies fraud, &c. It shows that Galloway has not paid the debt due the bank; but that the same and a large arrear of interest is in full force, and a judgment had therefor against Harris and Bell. The answer concludes by praying that in any disposition of the lands, the court may respect their prior lien; and that if such premises be ordered to be sold, that the court may direct that the bank debt, &c. be first paid out of proceeds, and defendant saved harmless, &c. This answer is duly sworn to by defendant Bell.
    On the 20th day of April, 1846, the said cause being called for hearing, said defendants, Galloway and Mahon, were defaulted, and the bill taken for confessed as against them; and the same coming on for final hearing on bill, answer, and exhibits, the same were referred to a Master in Chancery to take an account, &e., and report, &c., as well touching the debt due complainant, as also that due the bank as aforesaid.
    On the 19th September, 1846, on the report of the Master, that there was due complainant on his note and mortgage, $753.01, and to the bank aforesaid on the said judgment against Bell and Harris, which was had on said notes secured by said mortgage of Bell and Harris, $317.72, — It is ordered and decreed that Galloway pay the said several sums as due, and the costs of this suit, and that thereupon satisfaction be entered on said mortgages, &c.; but in default of his so doing, that the equity of redemption to said land be barred, &c., they sold; that a commissioner named sell them as directed; and out of proceeds he first purchase certificates, &c., and discharge the debt due the State Bank as aforesaid, and that he then pay the complainant’s debt, &c., and report, &c.
    Complainant, who is plaintiff in error, assigns for error:
    1st. The court below erred in treating the said mortgage from the said Galloway to the said Mahon and assigned to the said defendants Harris and Bell, as valid, and as a prior incumbrance on the said mortgaged premises; but should "have regarded the same as discharged and satisfied before such assignment.
    2d. The court below further erred in considering the condition of the said assigned mortgage as broken, and in ordering an account to be taken by the Master in Chancery to ascertain and report the amount due to the president, directors, and company of the State Bank of Illinois, and in regarding such debt as a prior charge on the premises mortgaged to complainant.
    3d. The court below further erred, on the final hearing of this cause, in the absence of any proof that defendants Harris and Bell had paid the debt due to the State Bank of Illinois, as securities for said Galloway, in taking into consideration the amount of such debt.
    4th. The court below further erred in making the payment of the debt due by Galloway to the State Bank any part of the condition upon which the relief sought by complainant should be granted, and in treating the said mortgage to Mahon as a security to said Bell and Harris, and as charging the said mortgaged premises to the extent of the satisfaction of the judgment against them on said note to said State Bank.
    5th. The court erred further in decreeing that the commissioner should, out of the proceeds of the sale of the said mortgaged premises, first purchase certificates of the State Bank of Illinois, and pay off and discharge the amount due to said president, directors, and company of the State Bank of Illinois, with interest up to date of said decree; and next, to pay over to complainant Bonham, the amount, &e. due on his said security, with costs, &c. -
    6th. The court below further erred in rendering any decree other than such as would have given to Bonham the relief prayed, and subject the said mortgaged premises to the full discharge of the debt reported by the Master in Chancery as due to Bonham on the security thereof.

      The decree was rendered at September term, 1846, of the Wabash Circuit Court, Wilson, Justice, presiding.
    C. Constable, for plaintiff in error.
    J. Gillespie, for defendants in error.
   Trumbull, J.

This was a proceeding in chancery to foreclose a mortgage executed to the complainant by the defendant Galloway in May, 1840. The bill is in the usual form as against Galloway, and malees Mahon, Bell, and Harris defendants, as claiming some rights under a mortgage of the same premises executed by Galloway to Mahon prior to the one executed to the complainant, which mortgage was subsequently assigned by Mahon to Bell and Harris, but which complainant insists is discharged as to him. The bill was taken for confessed against Galloway and Mahon. Bell filed an answer, which, by agreement, was taken as the answer of Harris also. Without denying complainant’s rights under his mortgage, the answer sets up as valid the mortgage to Mahon, the condition of which is, “ that if the said Galloway do well and truly, without defalcation, content, pay, satisfy, and discharge a promissory note of hand given by him and the said James Mahon, on the 26th day of February, A. D. 1840, to the president, directors, and company of the State Bank of Illinois, at their branch in Mount Carmel; that is to say for the sum of four hundred dollars, payable seven months after date, either by renewals or otherwise," so as to save the said Mahon harmless from paying said note or any part thereof, or any interest or cost accruing thereon, it being understood and agreed by and between the parties, that if the said Andrew J. QaM°way shall well and truly discharge said note agreeable to the true intent and meaning of the same, that then this indenture and every part thereof is to be null and void, otherwise to remain in full force and virtue.” The answer further alleges that Galloway did not pay the note to the bank; that Mahon, being desirous of being relieved from his liability as security for Galloway, the latter applied to the defendants Bell, Harris, and one Armstrong to become his securities, in the place of said Mahon, and renew his note to the bank, which they agreed to do on being made safe by a transfer of the mortgage to Mahon, to them; that they did accordingly become his securities, and renewed said note to the bank in the place of Mahon, who, in consideration thereof, on the 3d day of October, 1840, assigned said mortgage to them, the said Harris, Bell, and Armstrong ; that said Galloway had not discharged his debt to the bank, but that a large sum still remained due, for which judgment had been obtained against the said Harris and Bell; wherefore it was insisted that the court should respect the prior lien of the mortgage to Mahon in any disposition to be made of the mortgaged premises, and that the debt due the bank should first be paid out of the same.

The case was heard upon bill, answer, and exhibits, and a decree entered requiring the said Galloway to pay the amount found to be due upon said mortgages in twenty days, or, in default thereof, directing a sale of the mortgaged premises, and the application of the proceeds, first to the payment of the debt due the bank, and then in satisfaction of complainant’s claim.

That part of the decree foreclosing the mortgage to Mahon, and ascertaining the amount due the bank and directing its payment, is clearly erroneous. The bank was not a party to the proceeding, and would not be bound by the decree entered; and the defendants Bell and Harris had no right to proceed against Galloway till they had paid or discharged the debt for which they were his sureties.

The cause of action against the principal debtor in favor of the surety, accrues when the surety pays the debt, not before. Shepard v. Ogden, 2 Scam. 257.

The proper decree upon the assumption that the mortgage to Mahon was still in force, would have been to direct a sale of the premises subject to the lien of that mortgage.

These, however, are questions of minor importance, not affecting the real merits of the case, and which could be avoided in subsequent proceedings; but the great point in controversy is, whether the mortgage to Mahon was not discharged, when the note for which he was security was taken up, and he released from further liability.

The mortgage was not given to the bank as a security for the debt owed by Galloway, but to Mahon, to indemnify him in case he should have to .pay any part of that debt as Galloway’s security. The language of the mortgage is peculiar ; it was to be void in case Galloway should pay and satisfy his note to the bank, either by renewals or otherwise, so as to save the said Mahon harmless from having to pay the same. By the terms of the mortgage, it was clearly discharged the moment Mahon was released from his liability as a security on the note to the bank, and a new note given with different securities.

When the old note was taken up, and the renewed one substituted in its place, the mortgage ceased to be operative. Mahon had then been saved harmless, and discharged from all further liability, and the object for which the mortgage was given had been fully accomplished. It was not competent for him, at that time, after the rights of the complainant had intervened, to continue the mortgage in force by transferring it to other persons who had become sureties in his stead. It was Galloway, not Mahon, who applied to Bell, Harris, and Armstrong, to go his security upon the renewed note; and it was between these parties that the agreement was made for the transfer of the mortgage by Mahon. Galloway could not at that time have executed a new mortgage which would have had precedence over the previous one to the complainant; and if he could not thus directly give his new securities a preference over the complainant, could he accomplish the same thing by getting Mahon to transfer to them a mortgage which had ceased to be operative, by the very fact of Galloway renewing his note to the bank, so as to discharge Mahon from further liability ?

That Galloway and Mahon, at the time the mortgage was executed, did not contemplate its subsequent transfer as an indemnity to such persons as might afterwards become Galloway’s security upon a renewal of his note to the bank, is manifest from the language of the condition of the mortgage; and it was too late, after the rights of a third person had intervened, to change the original intent, design, and meaning of the mortgage to his prejudice.

We are aware of decisions to the effect that a surety on a note having a mortgage of indemnity, does not lose the benefit of his mortgage by renewing the note with his principal. Pond v. Clark, 14 Conn. 335; Brinkerhoof v. Lansing, 4 Johns. Ch. R. 73; Pomeroy v. Rice, 16 Pick. 22. Though a contrary doctrine was formerly held in Connecticut. Peters v. Goodrich, 3 Conn. 146. We know of no case, however, where a mortgage of this character has been held to be operative in favor of third persons who have been substituted as securities upon the renewed note, in the place of the original indorser and mortgagee, so as to overreach the rights of intervening creditors and purchasers of the mortgagor.

In the case of Pond v. Clark, overruling the decision in the third of Connecticut, the Court say in then: opinion, that had the indorser on the substituted note made his indorsement, at the request and upon the credit of new parties, the damage he finally sustained would not have been the consequence of his original indorsement, and would not entitle him to look to the mortgage for indemnity.

Mahon had no assignable interest in the mortgage at the time of the transfer, certainly no such interest, as against an intervening incumbrancer upon the same premises, and consequently the assignees took nothing by the assignment.

As the case will have to be remanded, it is proper to remark, that the transfer of the mortgage is to Harris, BeH, and one Armstrong, the last of whom, without any reason therefor appearing on the record, is omitted to be made a party. The same reason exists for making him a party as the other assignees, and the decree of the Circuit Court will be reversed, and the cause remanded, with leave to the complainant to amend his bill in this respect, if he shall be so advised, and with directions to the Circuit Court to take such further proceedings in the case, as to law and justice appertain ; and as are not inconsistent with this opinion.

Decree reversed.


text:
    Augustus M. S. McBain, Plaintiff in Error, v. Benjamin S. Enloe, Administrator of James Hoge, deceased, Defendant in Error.
    ERROR TO UNION.
    If the question of the propriety of the admission of a foreign judgment in proof, is to be tested, it must be set out in the bill of exceptions.
    It does not lie in the mouth of the party who has obtained a change of venue, to object to a trial in the court to which he has caused the case to be removed, if enough appears to give that court jurisdiction.
    An affidavit for a continuance, must state the facts necessary with such certainty that the opposite party may admit them, and go to trial. To state that the whole, or some part, of a debt, has been paid, is too indefinite.
    A refusal to admit a party to file supplemental affidavits for a continuance, cannot be assigned for error.
    The practice of amending affidavits for a continuance, discountenanced.
    This was an action of debt, commenced in the Massac Circuit Court, upon the record of a judgment purporting to have been rendered by a Court of Pleas and Quarter Session, in Obion county, Tennessee, wherein James Hoge was plaintiff, and the above-named McBain was defendant, at the January term of said court, A. D. 1835, for the sum of $385.19, and costs of suit.
    To this action the defendant filed pleas of payment, and nul tiel record, in the said Massac Circuit Court, at the May term, A. D. 1848, upon which pleas the plaintiff took issue. And at the same term, the cause was removed to the Union Circuit Court by change of venue, upon the defendant’s application. At the September term of the Union Circuit Court, 1848, and the next succeeding term, after the change of venue, the record was not filed therein, nor cause shown why.
    At the April term, 1849, of the Union Circuit Court, the record from Massac was filed therein, and the cause docketed, when the defendant moved to dismiss the suit for want of prosecution, which was overruled. A further motion was made by the defendant, at the same term, to compel the plaintiff to give security for costs, which was also denied by the court. A still further motion was made by the defendant, at the same term, to continue the cause, for want of a complete record from the Massac Circuit Court, which motion was granted, and a rule taken upon the clerk of said Massac Circuit Court to send up a full and complete record.
    At the May term of the Massac Circuit Court, 1849, a motion was made by the plaintiff, regular notice having been previously given, ten days before the first day of the term, to enter-up an order for a change of venue in said cause, nwnc pro twnc, which was argued by counsel on both sides ; but the Court not being fully advised, took time to consider until the next term of said court.
    At the September term of the Union Circuit Court, (which was holden previous to the Fall term of the Massac Circuit Court,) the amended record in said cause was filed therein, the case was docketed, and called for hearing, when the defendant made a motion for a continuance, founded upon the affidavits of defendant, contained in the bill of exceptions. But the motion was overruled, and exceptions taken.
    The plaintiff then offered the record from Tennessee in evidence, which was objected to by the defendant; but the objection was overruled, and the record admitted, which was all the evidence offered. The defendant offered no testimony.
    The jury then retired with the case, and returned a verdict for the plaintiff, for $385.19 debt, and $306.21 damages; upon which verdict judgment was rendered by Denning, Judge, at November term, 1849, of Union Circuit Court.
    C. G. Simons, for plaintiff in error.
    A court should exercise a sound discretion, in refusing or granting a continuance. And if a continuance is refused, and a party ruled to trial, and it appear, from facts stated in the bill of exceptions, that he was entitled to a continuance, the judgment obtained against him will be reversed in a superior court. See Hook v. Nanny, 4 H. & M. 157, note; Ross v. Norwell, 3 Munf. 170; Syme v. Montague, 4 H. & M. 180; Jacobs v. Sale, Gilm. 163.
    In Missouri, improper refusal of a continuance is matter of error. Riggs v. Fenton, 3 Miss. 28; Johnson v. Strader, 3 Miss. 359. See Smith v. Commonwealth, 2 Virg. Cas. 6; Holt v. Commonwealth, Id. 156; Certiorari, 51. These cases are found in 1 U. S. Digest, 571.
    In Indiana, an improper refusal to grant a continuance is ground of error. See Nixon v. Brown, 3 Blackf. 504; Van Claricum v. Ward, 1 Blackf. 50; Fuller v. State, 1 Blackf. 64.
    Reference is also made to section thirteen of the Practice act in Revised Statutes of 1845. The affidavits contained in the bill of exceptions, are founded on said section.
    R. S. Nelson and T. G. C. Davis, for defendant in error.
   Trumbull, J.

This was an action of debt on a judgment rendered in the State of Tennessee. Pleas nul tiel record, and payment. The suit was commenced in the Massac Circuit Court, and taken, by change of venue, to the Circuit Court of Union county, where it was finally tried, and resulted in a judgment against the defendant below, for six hundred ninety-one dollars and forty cents.

Numerous errors have been assigned for the reversal of the judgment, some of which have no foundation in the record. Such is the character of the seventh error, which is, that the court erred in submitting the issue of nul tiel record to the jury.” The record, in reference to this issue, is strictly formal and correct. It shows that it was submitted to, and tried by, the court.

Whether the transcript of the judgment in Tennessee was properly received in evidence, to prove the issue, this court cannot determine, as it is not set out in the bill of exceptions, and, consequently, is not before us. The fact that the clerk has copied into the record what purports to be a transcript pf the judgment upon which the suit was brought, does not make it part of the record. Petty v. Scott, 5 Gilm. 209.

The only issue before the jury was upon the plea of payment, and none of the instructions asked by defendant below, had any application to that issue, and for that reason, if none other, they were properly refused.

The error alleging that the court below erred in refusing a motion for a second change of venue, has been very properly abandoned, and there is nothing in the record to sustain the one complaining of the refusal to grant a new trial.

The remaining errors all resolve themselves into one — the refusal of the court to grant a continuance. Two causes were assigned for asking a continuance : First, that the record of the change of venue from Massac county, was not perfect; and, second, that defendant was not prepared for trial, on account of the absence of witnesses.

Upon the first point, it is impossible to conceive how the defendant could be prejudiced by the defects in the record complained of. The transcript of the record from Massac county, showed that the venue had been regularly changed on the defendant’s application, and it would have been improper to allow him, by affidavit, to contradict the truth of that record. If enough appeared to give the Circuit Court of Union county jurisdiction of the cause, what matter was it to the defendant, how the order making the change of venue was made up, how the papers were transmitted, or what motions, if any, were pending in the Massac Circuit Court, which could have had no jurisdiction of the case, after the venue was changed to Union county? It surely did not lie in his mouth to object to a trial in the court to which, at his own instance, the cause had been removed.

The other cause for a continuance was equally untenable. The affidavit stated that the defendant expected to be able to prove, by certain absent witnesses, whose testimony he had not had time to procure, that he had paid the whole, or some part, of the said sum of money in the said plaintiff’s declaration mentioned.” This was too indefinite. The affidavit left it wholly uncertain how much or what part the defendant expected to prove had been paid, and consequently put it out of the power of the plaintiff to avoid a continuance by admitting the amount. To entitle a party to a continuance under the statute, the facts expected to be proved by the absent witnesses should be set forth with such certainty that the opposite party can, if he thinks proper, admit them, and go to trial. Rev. Stat. ch. 83, § 13. The plaintiff might have been willing, for the sake of avoiding a continuance, to have admitted the payment of some part of his debt, but he had a right to know how much he would be admitting, by confessing the truth of the affidavit; and as the defendant failed to give that information, he had no right to demand a continuance.

The refusal of the court to allow the defendant to file new and further affidavits for a continuance, after the motion upon the affidavits filed had been denied, cannot be assigned for error. It was an application addressed to the discretion of the court below, and its decision upon it cannot be revised in this court; but as a general rule it would.be highly improper to allow a party whose affidavit for a, continuance had been held to be insufficient, subsequently to amend and make it good.

The judgment of the Circuit Court is affirmed, at the costs of the plaintiff in error.

Judgment affirmed.


text:
    Seth Allen, Appellant, v. Hans N. Scott, Appellee.
    APPEAL FROM RANDOLPH.
    A collector of taxes in a town, under an ordinance, must, in his proceedings, strictly follow the directions of it; and when acting under a special authority, he must show affirmatively the warrant for his proceeding.
    So much of the case of Shaw v. Dennis, 5 Gilman, 405, as construes section 35, chap. 89, of Rev. Sts. is overruled.
    Where a defence sets up matter of positive and absolute right, as the levy of an execution, &c., a special replication is required; hut where the defence amounts to an excuse for the act complained of, &e., the general replication, as de injuria, &c., is sufficient.
    Allen brought this action of trespass against Scott, for entering the close of Allen and seizing, taking, and driving away one yoke of oxen, &c., the goods of Allen, &c., and converting the same to his own use, &c. The declaration contains two counts; the second is for taking and carrying away the same goods, &c. To this declaration Scott pleaded not guilty, and a special plea, stating : That at the time when, &c., he, Scott, was collector of the corporation taxes for the town of Chester; that as such collector, he proceeded to collect the taxes of said town ; that Allen owed taxes; and as such collector, the taxes being due, Scott entered into, and upon said close for the purpose of seizing and taking, &c., and did take and seize, &c., said goods, as and for the taxes so due, winch are the trespasses complained of, &c.
    To the plea of not guilty, there was an issue to the country. To the special plea Allen replied, that Scott, in his own wrong, and not in the due execution of his office, committed the trespass, &c., because the ordinance required that the collector, if the taxes should not be paid when demanded, or within ten days thereafter, should proceed to collect the taxes by distraining the personal chattels of, &c., and selling the same, &c., and that Scott did not, ten days before the seizing and taking, &c., make such demand of the payment of said taxes, &c., and that Scott entered with force and in his own "wrong, &c.
    To these replications Scott demurred, to which there was joinder; the demurrer was sustained, and Scott had judgment for his costs. From this decision, rendered at September term, 1850, by Underwood, Judge, in the Randolph Circuit Court, Allen appealed.
    David J. and H. S. Baker, for appellant.

      De injurid, &c., is the proper form in matters of excuse ; but when it consists of, or comprises matter of title or interest in the land, &c., or the command of another, or authority derived from the opposite party or matter of record, in any of these cases it is improper, &c. Stephen on Pleading, 164, &c.; Id. 174, 264, 265; 1 Smith’s Leading Cases, 54.
    In trespass to persons, if the defendant has pleaded son assault, and self-defence, or defence of a father, &c., or any other plea merely in excuse, and not a justification under process of a court of record, the replication of de injurid is in general proper. 1 Chitty’s Pleading, 592, &c.
    The rule as laid down in Crogate’s case, (8 Coke, 66,) is that when a defendant justifies by a capias to the sheriff, and a warrant from him to defendant, de injwrid is no good replication; but the plaintiff may in such case reply de injurid, and traverse the warrant. The reason of its being bad is because the replication put in issue to the jury, matter of record, as parcel of the cause, i. e. matters of record cannot be replied to generally de injurid.

    The defendant may, however, admit the capias, and reply de injurid absque residuo causee. 1 Smith Leading Cases, 541; Saunders’s Rep. 294, note (a.) This rule is adopted in 5 Johns. Rep. 112.
    In an action for assault, &c., upon plaintiff in his own house, the defendant cannot justify on the ground that he is the owner of the house; that the possession was unlawfully withheld from him, and he only used sufficient force. to enter and overcome plaintiff’s resistance, and a replication de injwrid by plaintiff is good. 11 Pick. 379.
    Where the justification is under a writ, warrant, or other process of a court of record, plaintiff cannot reply de injurid, &c.; he may protest the writ, &c., and reply de injurid as to the residue. 1 Chitty, PI. 593, and following. See also 1 Chitty PL 597, where it states the process under which defendant justifies must issue from a court of record. A justification under proceedings in any court Which is not a court of record, de inju/rid is a good replication. 1 Chitty, Pl. 605.
    The general rule, that when the defence rests upon an authority of law, the replication must be special, as a general proposition, is inaccurate. 1 Chitty, 607, &c.; 1 Smith’s Leading Cases, 56.
    G. Koerner, for appellee,
    Cited, 5 Johnson, 112; 64 Id. 150 ; 12 Id. 491; 2 Pick. 359 ; 1 Chitty’s Pl. 10th edition, pages 592, 605, 606, 607, 608, 609, 610 ; 4 Wendell, 578; 5 Gilman, 419.
   Caton, J.

The defendant justified the trespass complained of, under the assessment list of the town of Chester, and under certain ordinances of the president and trustees of the town, by which it became his duty, as collector of the town, to collect a certain amount of taxes assessed against the plaintiff, and that for that purpose, he distrained the goods and chattels in the declaration mentioned. In his first replication to this plea, the plaintiff sets forth the sixth section of the town ordinances, which maltes it the duty of the collector to collect the taxes, for which purpose he should call upon such persons named in the list, as might reside or be found in the town, and proceeds; “ and if the tax upon any property shall not be paid by the person liable therefor, when demanded by the collector, or within ten days thereafter, he shall, forthwith, proceed to collect the same by distraining such of the personal chattels of the person from whom such tax is due, not exempt from execution, as will be sufficient to satisfy the tax, together with the costs of selling the same at public vendue.” The replication also avers, that the plaintiff was a resident of the town, and that the defendant did •not, ten days before he seized the goods and chattels, make a demand of him for the taxes. To this replication a demurrer was filed and sustained, and this is assigned for error. We now think this demurrer was improperly sustained. The authority of the collector to distrain for taxes depends entirely upon the ordinance, and he can only distrain at the time and in the manner which that authorizes. That gives him authority to distrain in a particular event, and after certain steps have been taken. He is first to call upon the resident tax-payer for the tax, and if it is not paid when demanded, or within ten days thereafter, then he shall proceed to collect by distress. The ordinance does not make it his duty to distrain till after the expiration of that time, nor is there a word of authority for him to do so, till the duty arises. There is no general authority for him to proceed at his discretion or convenience. The collector was acting under a special authority; and, in that case, he should be able to show, affirmatively, the warrant for his proceeding. He might as well have proceeded to make the distress, before he made the demand, as before the expiration of the ten days. The one was contemplated by the ordinance as much as the other, before the duty was imposed or the authority vested, to make the levy. We think the provisions of this ordinance are substantially the same as those of sec. 35, chap. 89, Rev. Stats.; and although, in the case of Shaw v. Dennis, 5 Gilman, 419, we thought that statute would bear a different construction, upon further reflection, we think it our duty to recall what was then said by the court, on the construction of that statute. Upon another ground, the objection to the pleas in that case was properly overruled.

To the same plea, the plaintiff also filed the general replication de injurié, &c., to which a demurrer was also sustained, and, we think, properly. It would be a useless labor to attempt to review all the cases where this replication has been sustained or overruled. To reconcile them all would be impossible. There are cases undoubtedly sustaining the rule insisted upon by the plaintiff’s counsel, that this replication is proper, except where the plea justifies by matter of record; and yet, cases are not wanting, where a special replication has been required to a plea, setting up a defence in no way depending upon matter of record. It must be admitted, that many of these distinctions are more artificial than substantial, and do not contribute very essentially to the promotion of the ends of justice. So long, however, as we are to look to the rules of the common law to govern us in pleading, we are not at liberty to disregard them. The most satisfactory and tangible rule is this: that where the defence sets up matter of positive and absolute right, as the levy of an execution, the service of a warrant, the collection of tithes or taxes, and the like, there a special replication is required; but where the matter set up in defence amounts to but an excuse for the act complained of, and is not the exercise of an affirmative right, as son assault demesne, there the general replication, de injwiá, &c., is sufficient. Lytle v. Lee & Ruggles, 5 Johns. 112; Coffin v. Basset, 2 Pick. 357; Coburn v. Hopkins, 4 Wend. 578.

Judgment reversed.


text:
    Isaac Sullivan, for use of James D. Carr, Plaintiff in Error, v. James D. Dollins, Defendant in Error.
    ERROR TO FRANKLIN
    A verdict will not be set aside, merely because the evidence might incline the mind of the court to a different result.
    Pleas under which evidence was admitted, though loosely and imperfectly drawn, and obnoxious to a demurrer, if they apprise the plaintiff of the defence, are cured by the verdict.
    Exceptions to instructions must be taken on the trial, if they are to be reviewed by the Supreme Court; they will not be so reviewed, upon an exception to a decision of the Circuit Court in refusing a motion for a now trial.
    The statute, which debars the maker of a note from showing a want Qr failure of- consideration, against an assignee, has no application to a case where the payee, having the legal title to the note, sues in his own name for the use of another.
    This was an action of assumpsit, brought by Sullivan, for the use of Carr, against Dollins, in the Franklin Circuit Court, to recover the amount of a note given by Dollins to Sullivan. The cause was tried before Denning, Judge, and a jury at April term, 1849, and resulted in a verdict and judgment for the defendant.
    Defendant pleaded,

      First. That if he executed the note, it was by, and under the influence of the fraud and misrepresentation of plaintiff, in this, that the consideration of the note was a certain stallion horse, which plaintiff represented to be of the stock and blood of the Leviathan, whereas he was of the worst scrub stock in the country.

      Second. That the consideration had failed in this, that plaintiff agreed to furnish a pedigree of said horse before the first season for standing him, whereas he has never furnished it, whereby the horse has become valueless.
    To the second and third counts, nil debet. Replications traversing fraud and misrepresentations.
    Plaintiff moved to set aside the verdict, and render judgment for the plaintiff, notwithstanding the verdict, which was overruled. Motion for new trial overruled.

      Plaintiff introduced the note, and proved that the same was in the possession of Carr before it was due, and that Dollins was aware of the fact.
    Defendant proved, that in the fall of 1845, Sullivan sold a stud horse to defendant for $300, and paid him $100, and executed the note sued on. That Sullivan represented to Dollins that the horse was begotten by the old Leviathan, and out of a Stockholder; and Sullivan agreed to send Dollins, by next spring, certificates of respectable men in Tennessee, proving that fact. Witness has seen Leviathan stock; they are fine horses. Does not know whether certificate was ever sent. Exception taken to all this. F. M. Vance saw Sullivan as he brought the horse to this country, and Sullivan told him he had a fine Leviathan horse to sell in this State or Missouri. Two or three weeks after, saw Sullivan and Dollins together, and Sullivan told him he had sold horse to Dollins, and was to send him a pedigree of the horse. Horse of a sorrel color, and that Sullivan told witness the horse was begotten by imported Leviathan. Exception to all this testimony.
    Henry Hays stated, that Sullivan had told him, he had sold a Leviathan horse to Dollins, and was to send him a pedigree to prove that fact. Exception to this.
    John Smothers stated, he knew the horse Dollins had was a sorrel, but did not know his blood; but believed he was the same horse he knew in Tennessee, named Rattler.
    O. C. Wilkerson knew Leviathan stock of horses, and does not believe Dollins’s horse of that blood. Leviathan stock stood high; were worth from one to three thousand dollars; difference between Leviathan and common stock is nine hundred to one thousand dollars. Dollins’s horse was worthless as a stallion. Knew horse from 1835 to 1839.

      Plaintiffrebutting. W. H. Eubanks stated, that Dollins said that the horse was a Leviathan, and that O. C. Wilkerson had tried to injure the character of the horse, but that his statements were not true. Dollins advertised the horse as a Leviathan in witness’s shop, but he did not believe it.
    O. C. Espy stated, that he knew the Leviathan stock; are generally of a sorrel color, and Dollins’s horse resembled them.

      A. M. Daniels stated, that Dollins stood the horse two seasons. Joseph Woston stated, that Dollins said the horse was worth what he paid for him, even if he was not of the Leviathan stock. D. Williams stated, that Dollins advertised the horse, in his neighborhood, as a Leviathan; and Dollins said, O. C. Wilkerson wanted to ruin his horse; but that if he was not a Leviathan, and was of the blood O. C. Wilkerson said he was, he, Dollins, would not take what he gave for him.
    James Bennett stated, he was acquainted with the Leviathan —they are of a sorrel color. Dollins’s horse resembled the stock in color and form.
    D. Hutson heard defendant say, that he believed he was of the Leviathan stock; but when he bought the horse Sullivan was to send him the pedigree.
    W. T. Cautrell heard Dollins say he hid not care whether the horse was of Leviathan stock or not; he would not take same amount for him ; witness does not think he resembles Leviathan stock, and would be worthless to him as a stallion. This was all the evidence in the case.
    W. B. Soates, for plaintiff in error.
    S. Breese, for defendant in error.
   Trumbull, J.

It is manifest, from the whole record in this case, that the consideration of the note sued on was a stallion of the Leviathan stock, together with certificates of respectable men in Tennessee proving the pedigree of the horse, which were to be furnished before the then next season. The evidence is somewhat loose as to the blood of the horse, and the failure to furnish the certificates; but the jury were clearly warranted to infer from it, that the certificates were never furnished, and that the horse was not of the blood represented. They might, without a manifest disregard of the evidence, have found either way, and in such a case, a verdict will not be set aside for the reason simply, that the evidence might incline the mind of the court to a different result.

The pleas under which the evidence was admitted were loosely drawn, and might have been obnoxious to a demurrer, but they fully apprised the plaintiff of the defence relied upon, and after verdict must be deemed sufficient. The rule is, that “where there is any defect, imperfection, or omission, in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer; yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed, that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission, is cured by the verdict.” 1 Chitty’s Pl. 673; Hendricks v. Seeley, 6 Conn. 176.

Here the whole evidence is before the court; and if it were admitted that the pleas did not allege with sufficient certainty, that the note was given in consideration of a horse of a particular stock, with certificates of his pedigree to be afterwards furnished, which was the consideration attempted to be set forth, still the court can see, from the evidence, without indulging in presumptions, that upon the trial, such was clearly shown to have been the consideration of the note; and the pleas after issue joined upon them were sufficiently specific to justify the introduction of the evidence.

The correctness of the instructions is not before us, as no exception was taken to them at the time they were given, and it has repeatedly been held, that to avail himself of an objection to an instruction, the party must except to it when given, and that he cannot do so afterwards in this court, on an exception to a decision of the court below in refusing a motion for a new trial. Leigh v. Hodges, 3 Scam. 15; Hill v. Ward, 2 Gilm. 293. The judge presiding at the trial would undoubtedly sustain a motion to set aside a verdict, which he was satisfied might have been obtained through a misdirection of his, although- not excepted to ; but in this court, a party, to avail himself of an objection to an erroneous instruction to the jury, must have excepted to it at the time it was given.

The statute debarring the makers of a note from setting up a want or failure of consideration as a defence to a note assigned before due, applies only to cases, where the legal title to the note has been transferred by assignment to a bond fide assignee, and has no application to a case like this, where the payee of the note, who has the legal title, institutes a suit in his own name for the use of another.

The judgment of the Circuit Court is affirmed at the cost of the plaintiff in error.

Judgment affirmed.


text:
    The Illinois Mutual Fire Insurance Company, Plaintiff in Error, v. John O’Neile, Defendant in Error.
    ERROR TO MADISON.
    The 18th section of the charter of the Illinois Mutual Eire Insurance Company, which declares that a double insurance, without the consent of the company, on a house or building, does not include an insurance upon goods.
    No usage of the company, or agreement of parties, made before or at the time of the execution of the policy, can be admitted to explain, modify, or control the written contract.
    This cause was tried at the Madison Circuit Court at March term, 1851, before Underwood, Judge, and a jury.
    Trumbull, Justice, being interested, did not sit at the hearing of this cause.
    This was an action of assumpsit, brought by said O’Neile against the said company upon a policy of insurance issued by them, in the sum of $1,900, upon a stock of goods, wares, and merchandise belonging to said O’Neile, in his store in Randolph county. The policy was for the term of six years, and was issued on the 15th day of May, 1848. On the 13th day of April, 1850, the store of said O’Neile was consumed by fire, and goods, amounting to the sum of $1,482.66, were consumed, and the loss sustained by him in goods, including what were damaged, amounted to the sum of $2,000.
    The whole stock on hand at the time the fire occurred, amounted to the sum of $9,922, and it was also shown that the said O’Neile, from the 1st of June, 1849, up to the time when said fire occurred, had purchased goods amounting to about the sum of $12,000. It was also proved that the said O’Neile gave due notice of his loss to the said company as required by the terms of his policy, and had regularly paid his assessments on his premium notes. The charter of the said company, which is annexed to the policy sued on, contains the following section, viz.:
    “ Sec. 18. If insurance on any house or building shall be and subsist in said company, and in any other office, or from and by any other person or persons, at the same time, the insurance made in and by said company shall be deemed and become void, unless such double insurance subsist by and with the consent of the directors, signified by indorsement on the back of the policy, signed by the President and Secretary.”
    The plaintiffs in error, in defence offered and read in evidence to the jury, the following letter from Moses G. Atwood, their secretary, to Amzi Andrews, who was proved to be one of the agents of said company residing in Randolph county, viz.

      Office of the Ills. M. F. I. Co., } Alton, April 23d, 1849. )
    Amzi Andrews, Esq.
    Dear Sir : — Yours of 6th inst. is at hand. Mr. J. O’Neile can retain insurance on but $1,400 of his stock after his removal to the store adjoining Mr. Perkins, as this company cannot insure more than $5,000 in any one exposure. He can send in his policy and have the balance of it cancelled, and his note will be reduced in proportion if he chooses. He can also obtain insurance in another office, by giving due notice to this company, provided, always, that he keep an amount at his own risk equal to that insured in this office, as this company never insure more than one half the value of personal property.
    Yours truly, M. G. Atwood, Sec.

    Also the following letter from the said defendant in error to the said Atwood, dated May 14th, 1849, viz.

      Chester, May 14, 1849.
    Sec’y Ills. M. F. Ins. Co.
    Sir:—Mr, Andrews has just handed me yours of April 23d, in reply to a letter he wrote you on the subject of insurance ; herewith I send you two policies, that I have taken at different times; you will please insure on $1,400 (the full amount you are willing to insure on) on my stock. I intend taking out an additional insurance in some other office, and shall advise you as soon as I do. I intend to insure on $10,000 stock, and storehouse, $2,500. The house cost $3,000, and the stock will average the $10,000. Mr. A., I understand, wrote you fully the location of the house. The wall that divides A. Perkins and myself is 13 inches, running up 14 inches above the roof; on the other side of me is a dry-goods store, with same thickness of wall. The front end of my second story is occupied as a tailor’s shop, the third story occupied once a week as a temperance hall, and once a week by freemasons. Whenever a flue passes through a partition, brick is built around it for eighteen inches. You will please make the alterations, and return policy at your earliest convenience. The insurance on my other house, I wish it all cancelled. ° Very respectfully,
    John O’Neile.
    Also the following letter from the said defendant in error to the said Atwood, dated April 19, 1850, viz.

      St. Louis, April 19,1850. Mr. M. G. Atwood, Sec’y I. M. F. Ins. Co. Alton.
    Sir: — On the morning of the 13th inst., my storehouse was destroyed by fire, and as near as I can arrive at the loss on goods, amounts to $2,500 or $3,000. My object in writing is, to ascertain what kind of evidence I shall have to produce to establish my loss. No. of policy, 3,612, insured nineteen hundred dollars. I have insured in Philadelphia $7,500 in addition to the amount insured in your office. Please write me immediately on the subject. I shall remain in this city a few days. If you write me here, please direct “ care of Chas. Tillman.”
    Very respectfully, John O’Neile.
    The plaintiffs in error then offered to prove by said Atwood, that in all cases where property, whether real or personal, was insured by them, they had always required notice to be given to them of any additional insurance upon the said property, as provided in the 18th section of their charter, and that this had been the invariable usage of said company; which testimony the court refused to allow them to give; to which refusal, the plaintiffs in error at the time excepted.
    It also appears, from the policy sued on, that on the 29th day of May, 1849, the said defendant in error procured the written assent of said company on the back.of his policy, to his removal of his goods to his new storehouse, mentioned in the foregoing letters.
    The jury, having found for the defendant in error the sum of $402.25, the plaintiffs in error moved for a new trial; which motion the court overruled. To which decision of the court, in overruling said motion, the plaintiffs in error at the time excepted ; and now bring this case by writ of error into this court, and make the following points upon the assignment of errors:
    1st. The defendant was bound by the 18th section of the charter to give the said company notice of the additional insurance made by him, and obtain the written assent of the company on his policy.
    2d. The said defendant in error had not, at the time of the fire, an amount of goods at his own risk, equal in value to the amount covered by the said policy, as required by the charter and usages of said company.
    3d. The testimony which the plaintiffs offered to make by Atwood, was proper and pertinent, and should have been allowed.
    Davis & Edwards and J. Gillespie, for plaintiffs.
    D. J. and H. S. Baker, for defendant,
    Cited, 23 Pick. 418; 2 Watts & Serg. 544; 5 Ohio, 466; 2 American Leading Cases, 343; 2 Phillips on Insurance, 62; 5 Hill, 298; 1 Marshall on Insurance, 146; 2 Wharton’s Dig. 54, § 11; 7 Hill, 122; 3 Comstock’s Rep. 124 to 127; 2 Id. 237, 241 to 244.
   Caton, J.

The questions in this case do not admit of a moment’s hesitation. After the policy before us was effected, the assured took out another policy, from another company, on his stock of goods, without advising the appellants of that fact, and without their sanction. ' This, they insist, avoids their policy, and rely upon the 18th section of their charter, which is as follows : “ If insurance on anv house or building shall be and subsist in said company and in any other office, or by or from any other person or persons at the same time, the insurance made in and by said company shall be deemed and become void, unless such double insurance subsist by and with the consent of the directors, signified by indorsement on the back of the policy, signed by the president and secretary.” Here, the insurance was on a stock of merchandise; and, although it was strenuously insisted upon by counsel, I cannot think that it is necessary to enter into an argument to prove that the property insured was not a “ house or building,” and that consequently that section does not apply in this case, but shall content myself with stating, that it is the opinion of this court that this stock of goods was not such an edifice.

The usage of the company in relation to additional insurance upon personal property, which was offered to be proved by Mr. Atwood, was properly excluded. No usage of the company, nor even the express agreement of the parties, whether made previous to, or at the time of, the execution of the policy, can be admitted to explain, modify, or control the written contract. Insurance Co. v. Hone et al., 2 Comstock, 235.

The judgment must be affirmed, with costs.

Judgment affirmed.