text:
    Jarret Garner, Plaintiff in Error, v. M. C. Willis, Defendant in Error.
    ERROR TO GALLATIN.
    The oldest execution first delivered to the officer, binds the personal property, though issued upon a junior judgment. An execution returned “ not levied,” is functus officio.

    If a purchaser, at a sheriff’s or constable’s sale, takes possession of the property purchased, without the consent and against the command of the officer, though the purchaser be the plaintiff, in the jfere facias under which the sale is made, he is a trespasser.
   Opinion of the Court by

Chief Justice Wilson.

This is an action of trespass, brought by Willis against Garner, and the following facts are submitted by the parties, for the opinion of the court as to the law thereon, viz.:

There were two judgments on a justice’s docket against John Huston, one in favor of Wight, the other in favor of Garner. Wight, the plaintiff in the oldest judgment, sued out an execution which was returned “ not leviedGarner then took out an execution on his judgment, which was levied by the defendant in error, Willis, who was a constable, on the horse of Huston, after which, Wight took out a second execution upon his judgment, which Willis also levied on the same horse, and sold him under both. Garner became the purchaser, and took possession of the horse without the consent and against the command of Willis. Now, it is agreed, that if Garner’s execution should, in law, be first satisfied, and also that Garner was guilty of a trespass in taking the horse, then judgment is to be given against him for nominal damages; but if the court should be of opinion that Wight’s execution bound the property, then judgment is to be given for its value and costs. The judgment of the court below was against Garner, and for the amount of Wight’s execution. To reverse this judgment, this writ of error is prosecuted.

In deciding this case, the court below seems to have gone upon the ground that the oldest execution created a lien upon the defendant’s personal estate, and that the lien was kept alive, and extended to a second execution issued upon the same judgment after the return of the first, and in exclusion to Garner’s execution issued after the return of Wight’s.

This position is not maintainable, either upon the principles of the common law, or the provisions of the statute. At common law, writs of execution had relation to their teste, and subjected the estate of the defendant from that time to be levied on and sold, wherever it might be found, between different plaintiffs against the same defendant; however, the law created no lien in favor of one to the prejudice of the other, on account of the age of their executions, but it imposed an obligation on the officer to act impartially, and of two executions in hand at the same time, to satisfy that first which was first received. If he departs from this rule, and levies the last execution first, he does it at his peril, and though a sale under that would be legal as respects purchasers, the officer would be responsible to the plaintiff in the first execution.

The statute of 1825, regulating judgments and executions, and which is the only one applicable to this case, provides, “ that no writ of execution shall bind the goods, &c., of any person against whom such writ shall be issued, but from the time such writ shall be delivered to the sheriff or other officer.”

This statute changes the common law only so far as to limit the commencement of the binding efficacy of the executions to the time of their delivery to the officer; it was certainly not intended to give them a more extensive operation than they had before its passage. Such is the construction given by the courts of England and Kentucky to a similar statute. They have repeatedly decided that an execution, after the expiration of the time when by law it should be returned, is officially dead, and that its delivery to an officer in the first instance, does not create a lien which can be preserved and continued to a subsequent execution issued after the return of the first. 4 Bibb, 29. Salkeld, 320.

Gatewood, for appellant.

Eddy, for appellee.

Upon this point the court below erred. The next inquiry is, as to the liability of Garner to an action of trespass, for taking the property out of the possession of the constable against his will, The general principle, that a sheriff or constable who seizes goods on an execution, has a special property in them, and may maintain trover or trespass against a wrong-doer, is well settled, and there are no circumstances in this case to take it out of the operation of this rule. Garner, being the plaintiff in one of the executions under which the horse was sold, gave him no interest in the property ; his only title to the possession was the sheriff’s sale, and his right under that was not complete until the terms of sale were complied with fiy the payment of the purchase money, or the delivery of the property to him by the officer. The sale being under both Wight’s and Garner’s executions, the constable might have applied the proceeds to the discharge of either, and his liability for a wrong application of it, affords no justification to Garner. It may also be observed that officers are entitled to retain their fees ; but the benefit of this principle would be defeated if a plaintiff in an execution, who becomes a purchaser, was entitled to more favor than a stranger. Under this view of the case, I am of opinion that Garner’s execution should have been first satisfied, and also, that he was guilty of a trespass in taking the property against the consent of the constable. The judgment of the circuit court is therefore reversed, and judgment rendered against the appellant for one cent damages and costs below, and that the appellant recover the costs in this court.

Judgment reversed.

       Rev. laws of 1829, page 86, sect. 6.

       Where two or more writs of fi. fa. are delivered at different times, either to the same or different officers, and no sale is actually made of the defendant’s goods, the execution first delivered must have the priority, though the first seizure may have been made on a subsequent execution. But where the goods are actually sold by virtue of a levy made under a junior execution, the sale will be good, and the property can not afterwards be taken from the purchaser by the senior execution. The only remedy of the party injured is against the officer. Rogers v. Dickey, 1 Gilm., 636.
      An execution becomes a lien on the personal property of the defendant from the time it is indorsed by the constable, and no subsequent sale by the defendant can affect the rights of the plaintiff. Marshall v. Cunningham, 13 Ill., 20.
      If a defendant dies between the teste of an execution and its delivery to the sheriff, the sheriff can not proceed to make a levy under it. People v. Bradley, 17 Ill., 485.
      An execution issued after the death of the judgment debtor, is void, and if a Sheriff sells land under it, his deed is a nullity. Laflin v. Herrington, 16 Ill., 301.

        The death of a defendant in execution, after its delivery to the sheriff, but before a levy under it by him, will not prevent that officer from proceeding to levy and sell. Dodge v. Mack, 22 Ill., 93.
      A title, acquired under an execution issued after the death of the defendant, is not prima facie void; it becomes so upon proof of the fact of the death. Finch et al. v. Martin et al., 19 Ill., 105.
      A return of an officer to an execution is not simply his indorsement upon the process, but is the actual placing it in the office from which it issued. Until then he may change the indorsement, and afterwards, only by permission of the court. Nelson et al. v. Cook, 19 Ill., 440.


source: Caselaw Access Project

author: Justice Smith.

license: Public Domain

text:
    Ignatius R. Simms, Appellant, v. Joseph Klein, Appellee.
    APPEAL FROM MORGAN.
    A sheriff’s return in this form: “ I. R. Simms summoned by reading ” and signed by the sheriff, and dated, is sufficient.
    Neither the law, nor the practice of the courts requires that the judgment should contain the amount of costs in numero.

    Ten per cent, damages allowed, where the appeal was evidently taken for delay.
    Klein brought an action of assumpsit in the court below against Simms, on a promissory note, and recovered a judgment by default, and the clerk assessed the damages. The declaration was in the usual form. The sheriff’s return to the original summons against Simms, was in this form, viz.: 611. It. Simms summoned by reading, this 17th day of August, 1830. S. T. Matthews, sheriff.”
    Several errors have been assigned, which are particularly noticed in the opinion of the court.
   Opinion of the Court by

Justice Smith.

The appellant relies on four errors assigned as cause for the reversal of the judgment :

1. The insufficiency of the return of the sheriff of the service of the summons.

2. The insufficiency of an allegation of a promise in the declaration to pay the sum demanded.

3. That the judgment by default is erroneous, because no evidence appears to show how the clerk assessed the damages.

4. That as the judgment does not include the costs in numero, it is error.

The .whole of the objections are considered untenable. The return shows that the defendant was regularly summoned, although his name is written “I. R. Simms," in the return, and the court will infer that it is the defendant, although his Christian name is not written out at length. The objection is considered frivolous. Equally so are the second and third objections. The declaration is sufficient, and even technically correct, and the mode of entering up the default of the defendant and assessing damages is the only one recognized by courts.

McConnel, for appellant.

Thomas, for appellee.

As to the last objection, that the judgment does not contain the amount of the costs in a particular enumeration of their amount, it is a sufficient answer, that neither the law, nor the practice of our court requires it to be done; and it is also manifest that, from our mode of proceeding in the circuit court, it would be impracticable to comply with such a form.

In every aspect in which this case can be viewed, it must be considered as having been brought here for delay, and as such, the court is of opinion that the judgment should be affirmed with ten per cent, damages and costs.

Judgment affirmed.

       See note to Ryan v. Eads, ante, 217.


author: Chief Justice Wilson.

text:
    Solomon Blue, Plaintiff in Error, v. Weir and Vanlandingham, Defendants in Error.
    ERROR TO GALLATIN.
    A justice of the peace has no jurisdiction if the whole claim of the plaintiff exceeds one hundred dollars, though it may be reduced by credits before suit brought to a sum less than one hundred dollars.
    The defendants in error brought suit before a justice of the peace, against the plaintiff in error, on an account which amounted to two hundred and eighty-four dollars and eleven cents, but which was reduced, by credits, to eighty-four dollars and eleven cents, and recovered a judgment against him for that sum, from which judgment the plaintiff in error appealed to the circuit court of Gallatin county. On the trial of the cause there, a motion was made by the plaintiff in error to dismiss the suit, and reverse the judgment, on the ground that the account sued on exceeded the jurisdiction of a justice of the peace; the court overruled the motion, and affirmed the judgment of the justice; to reverse which judgment this writ of error is prosecuted, and the refusal of the court to dismiss the suit and reverse the judgment is, among other things, assigned for error.
    Webb, for plaintiff in error.

      Eddy, for defendant in error.
   Opinion of the Court by

Chief Justice Wilson.

One of the errors assigned for the reversal of this judgment is, that the cause of action exceeded the jurisdiction of a justice of the peace.

The statute of 1827 giving jurisdiction to justices of the peace in civil cases, enumerates, among other causes of action, any debt claimed to be due upon open and unsettled accounts between individuals, where the whole amount of the accounts of either party shall not exceed one hundred dollars. The account offered in evidence before the justice in this case by the plaintiff below, was an open and unsettled account amounting to two hundred and eighty-four dollars and eleven cents. Credits, it is true, are given at the foot of the account to the defendant, which reduce the amount purporting, by the account, to be due the plaintiff, below one hundred dollars. These credits are given by the plaintiff himself; the balance was not ascertained by a settlement between the parties as contemplated by the statute. To ascertain the balance due the plaintiff, it was necessary for the justice to investigate an account greatly exceeding one hundred dollars. This power is not conferred by the statute, and the justice exceeded his jurisdiction in assuming it. The judgment of the court below must be reversed for want of jurisdiction in the magistrate,

Judgment reversed.

       Revised code of 1827, p. 259.

         Vide Clark v. Cornelius, ante, 46. Maurer v. Derrick, ante, 197. Ellis v. Snider, ante, p. 336.


text:
    Philander Woodworth, Plaintiff in Error, v. Enoch Paine’s Administrators, Defendant’s in Error.
    ERROR TO RANDOLPH.
    Notwithstanding the act of 1823, regulating' the distribution of an intestate’s estate, a judgment obtained before that time against the intestate in his life time, is entitled to preference in the payment of his debts out of his personal assets, even if the estate is insolvent.
    A statute enumerating things or persons of an inferior dignity, shall not be construed to extend to those of a. superior dignity.
    The plaintiff in error obtained a judgment in the Randolph circuit court, against Paine in his life time, in 1822; and after his death, sued out a scire facias to revive it against his administrators. The plea to the sci. fa. was in the following words: “ The said defendants come and defend the wrong and injury, when, where, &e.; and for plea say that the plaintiff (actio non) because they say that the whole amount of assets which have come to their hands to be administered is one thousand fifty-six dollars ninety-nine cents; that the burial expenses and the expenses of the last illness of the said Paine, deceased, the allowance made by the judge of probate to the widow, and the expenses of administration amount together to the sum of three hundred eighty-two dollars forty-four three-fourth cents, leaving for distribution among the several creditors, the sum of six hundred seventy-four dollars fifty-five cents. These defendants aver that the amount of claims and demands against the estate of said Paine, deceased, entitled to a distributive share of the said assets, is three thousand six hundred fifty-three dollars thirty-seven and a half cents, and that the actual amount paid upon the said claims and demands by these defendants, exclusive of the sum of three hundred eighty-two dollars forty-four and three-fourth cents aforesaid, is eight hundred eighty-three dollars sixty-two and a half cents. That the amount of the claim and demand of the plaintiff aforesaid, is about nine hundred eighty-eight dollars in state paper, and three hundred twenty-nine dollars in specie, or thereabouts, and these defendants aver that they have paid to the said plaintiff, on account thereof, the sum of one hundred fifty-five dollars sixty-eight cents, and that the said plaintiff hath obtained a judgment against these defendants in their individual character, for the sum of two hundred and fifty dollars, a part of which has been made of the sale of the property of these defendants by execution, and a part whereof is not paid, to wit, the sum of-dollars, for which last mentioned sum of-dollars, the plaintiff now has execution levied; wherefore, these defendants say that the said plaintiff has received his distributive share of the assets aforesaid, and this they are ready to verify, wherefore, they pray judgment, &c. This plea was demurred to, and the demurrer was overruled by the circuit court, and a writ of error prosecuted to reverse that judgment.
   Opinion of the Court by

Chief Justice Wilson.

Wood-worth, the plaintiff in this case, sued out a scire facias against Greenup and Conway, administrators of Enoch Paine, deceased, to revive a judgment obtained against Paine in 1822, for the sum of one thousand fifty-six dollars sixty-one cents.

To this sci. fa. the defendants pleaded, among other things, outstanding claims against the estate of their intestate, exclusive of the judgment of the plaintiff, greatly exceeding the amount of assets that remained in their hands, but neither the nature of those claims, whether judgments, specialties or parol, nor the time of the death of Paine, are set forth. To this plea there was a demurrer, which was overruled by the court. ’ For the defendants it is contended that the statute of 1823, relative to deceased persons’ estates, placed all demands against the estates of such persons (except funeral expenses) upon the same footing, as well judgments as debts by specialty and parol, and that each claim was entitled to a- distributive share of the assets according to its amount, without regard to the nature of the claim.

The statute of 1823 referred to, is clearly prospective in its operation, and was so decided in the case of Betts and Smith, administrators of Jones v. Bond. If the position of the defendants was true as regards judgments against persons dying since the passage of that act, it was incumbent upon them to have shown the death of their intestate subsequent to that time. According to the construction of the statute for which they contend, this is a material fact which should have been affirmatively stated. The plea in this respect is bad ; it leaves the time of the decease of Paine uncertain, and the rule is that a plea which has two intendments, shall be taken most strongly against the party pleading it. Chitty Pl., 521.

The imperfections of the defendant’s plea are sufficient to reverse the judgment of the court below, but as this case has to be remanded for further proceedings, it becomes necessary to inquire whether the act of 1823 was intended to apply to judgments rendered previous to its passage. After enumerating several descriptions of claims that shall he entitled to a preference in the distribution of an intestate’s estate where the same is insufficient to pay all the debts, it provides “ that executors, &c., shall then pay the balance on the legal demands, in equal proportions, according to their amount, without regard to the nature of said demand, not giving preference to any debts on account of the instrument of writing on which the same may be found.” Judgments, it will be perceived, are not mentioned in the statute, and it is a rule of law that an enumeration of things or persons of an inferior dignity, shall not extend to a superior. A judgment is a demand, but it is not a demand evidenced by an instrument of writing as contemplated by the statute. It is a debt of record created by operation of law, in which the original demand, whether evidenced by oral testimony or specialty, is merged. At common law, debts were to be paid by executors, &c., according to their dignity. Our statute was intended to establish a more equitable rule, and, without taking from the judgment creditor the fruits of his diligence, required other debts to be paid pro rata, regardless of the kind of testimony by which they were to be established. 1 Bl. Com., 88. 3 Burr. Rep., 1548. 3 Bl. Com., 389. 2 Bl. Com., 465.

According to the law in force, at the time the judgment upon which this sci. fa. issued was obtained, a judgment bound the real estate of a defendant from its rendition, and the personal from the delivery of an execution into the hands of an officer. No sale or transfer made by a defendant of his property, after that time, could divest the plaintiff of the lien which the law gave him on tlié property, for the purpose of satisfying his debt. Without inquiring into the power of the legislature to divest a party of a right thus acquired, it is sufficient for the present case, that they have not attempted it by naming judgments, or using any other terms that will necessarily include them ; and a previous right or remedy can not be taken away without a positive enactment; it is never done by implication. 19 Vin., 514. Dane’s Abr., Chap. 196.

The same legislature that enacted the statute relative to the distribution of intestates’ estates, a few days after its passage, reenacted the law of 1821, which made judgments bind the property of a defendant. If then the defendant’s construction of the first law be right, the second one, as regards judgments against persons subsequently dying, is a nullity, even though an execution had been issued and levied, previous to his death. This certainly can not be true. If, however, either, statute conflicts with, and repeals part of the other, it is the defendant’s position which is taken away by the reenactment of the law of 1821. If the view I have taken of this subject be correct, then both statutes may have an operation without violating legal principles, or doing injustice to any, and two laws of the same session, and in part on the same subject, each evidently intended by the legislature to have full operation, will be reconciled and preserved. Eor these reasons, the judgment of the court below must be reversed with costs, and the cause remanded, with leave given the defendants to plead over.

Breese and Baker, for plaintiff in error.

Hall, for defendants in error.

Judgment reversed.

       Laws of 1823, p. 127.

        Ante, p. 287.

       Statutes which treat of things or persons,of an inferior rank, can not, by any general words, be extended to those of a superior. Hall et al. v. Byrne et al., 1 Scam., 140.
      Now we have the following statute on this subject: “The word ‘person’ or ‘persons/ as well as all words referring to, or importing persons, shall be deemed to extend to and include bodies politic and corporate, as well as individuals.” Scates’ Comp., 722, sec. 29.
      Corporations are included in the word “person” in the attachment law. Mineral Point R. R. v. Keep, 22 Ill., 9.


author: Justice Lockwood.

text:
    Bryan Teague, Plaintiff in Error, v. Lansing S. Wells, Defendant in Error.
    ERROR TO MADISON.
    On an appeal taken by the defendant from the judgment of a justice of the peace, the circuit court can not rule the plaintiff to give security for costs.
   Opinion of the Court by

Justice Lockwood.

This was an action commenced by the plaintiff before a justice of the peace, in which court he recovered a judgment for nine dollars and twenty-eight cents. The defendant took an appeal to the circuit court, and there, on filing an affidavit that the plaintiff was unable to pay the costs, obtained a rule that the plaintiff should give additional security for costs, or that the suit would be dismissed, and the judgment of the court below reversed. The plaintiff having failed to file. the required security, the suit was dismissed at the plaintiff’s costs, and the judgment of the justice of the peace reversed. To obtain a reversal of the judgment of the circuit court, a writ of error has been brought to this court.

Semple, for plaintiff in error.

Blackwell, for defendant in error.

The only question presented for the decision of this court is whether the first section of the act concerning costs, passed 10th January, 1827, applies to appeals taken from a justice of the peace to the circuit court. We are of opinion that the legislature only contemplated requiring voluntary plaintiffs to give security for costs by this section. In this case the plaintiff was satisfied with the decision of the magistrate, and it seems unreasonable to compel him to give security to prosecute a suit against his inclination and interest. Such a principle does not comport either with the act or with justice.

The judgment, therefore, of the circuit court, must be reversed with costs, and the cause remanded for further proceedings.

Judgment reversed.

       Rev. Code of 1827, p. 103, sec. 1, title “Costs.”

       Affirmed in Campbell v. Giblin, 19 Ill., 54.


text:
    Francis Prince, Plaintiff in Error, v. Levi Lamb, Defendant in Error.
    ERROR TO GALLATIN.
    Variances between the writ and declaration, can only be taken advantage of by plea in abatement—they are not reached by a general demurrer, nor can they be assigned for error.
    It is not essential to entitle a party to recover interest on a judgment rendered in another state and sued on here, that the declaration should allege that by the laws of the state where the judgment was rendered, interest is recoverable.
    A judgment rendered for “ interest on the amount,” without stating what the amount is, by way of damages, is uncertain, and therefore erroneous.
    Where this court have the power to render such a judgment as the court below ought to have rendered, it will do so, without sending the parties back for that purpose.
    This was an action of debt in the Gallatin circuit court, brought on a record of a judgment obtained in the state of Kentucky, against Prince. The first declaration and writ demanded a debt of 206 dollars and 50 cents, and 150 dollars damages. The alias writ is for the same demand, but the amended declaration demands a debt of 206 dollars and 50 cents, and interest from the 25th of December, 1820. The defendant below, the plaintiff in error here, pleaded nul tiel record and payment. The court, by consent, tried both issues, and gave judgment for the plaintiff below, for 206 dollars and 50 cents, with interest on 200 dollars, from the 25th day of December, 1820, until paid. The points relied on by the plaintiff in error, are fully stated in the opinion of the court.
   Opinion of the Court by

Justice Smith.

The points relied on for a reversal of the judgment of the circuit court, are :

1. That the judgment was for a greater amount than the sum named in the writ, or demanded in the declaration.

2. That in the absence of an averment that by the laws of Kentucky, judgments bear interest, the court below could not give judgment for the interest specified in the Kentucky judgment.

3. That the judgment is uncertain, being for a constantly accruing interest on a part, and silent as to another part.

4. That the court did not inquire into the value of Kentucky bank paper.

5. That the Kentucky judgment is not correctly stated, in the declaration, in respect to the amount of costs, and should have been rejected on the plea of nul tiel record.

I shall consider the points raised as they are stated. Under the first, it is contended that the judgment was for a greater amount than was specified in the writ and declaration, and that therefore the judgment is erroneous. The variance, if there be one, between the writ and declaration, should have been taken advantage of before plea pleaded. It is now too late to urge that, as error, here. Variances between the writ and declaration are matters pleadable in abatement only, and can not be taken advantage of, even upon a general demurrer. Duval et al. v. Craig, 2 Wheat., 45. Garland v. Chattel, 12 Johns. Rep., 430. Chirac et al. v. Rencher, 11 Wheat., 280.

On the second point it is deemed only necessary to remark, that it is not essential to entitle k party to recover interest on a judgment, that it should be shown, in the declaration, that by the laws of the state where the judgment is recovered, interest is allowed thereon by statute.

The judgment is a debt, and may be assimilated to a contract to pay a sum certain with interest. Such interest is recoverable as a part of the contract, in the present case, by way of damages for the detention of the debt, the interest being a part of the judgment. Interest is recoverable on an ordinary judgment which contains in itself no award thereof, by way of damages.

The fourth objection, that the court did not inquire into the value of Kentucky paper, is readily disposed of. There was no obligation on the plaintiff to receive the Kentucky bank paper, in conformity with the indorsement made on the execution, except under it. The defendant having neglected to avail himself of that offer at the proper time, can .not now avail himself of it. The judgment is for dollars, and the court could only recognize by that judgment the standard value of the legal currency of the United States, without discount or abatement of value.

The variance between the declaration and the record, produced as evidence to rebut the plea of nul tiel record, will be considered. The declaration alleges that the defendant is indebted unto the plaintiff in the sum of 206 dollars and 50 cents, and also interest thereon, to be computed after the rate of six per centum per annum, from the 25th day of December, 1820. The judgment adduced as evidence, is for 200 dollars debt, with interest thereon, to be computed after the rate of six per cent, per annum, from the 25th day of December, 1820, until paid, and also six dollars and fifty cents for costs. The question of variance is, then, whether the six dollars and fifty cents are to be considered as a part of the debt or not. This case is distinguishable from the case of Giles v. Shaw, in this, that here the record of the proceedings show that the six dollars and fifty cents which are the costs, are a part of the record itself, duly certified under the hand of the clerk to be so, the award of the execution and the execution itself being inserted in, and made a part of the record, in which the costs are recited to have been the actual costs awarded to the plaintiff. In the case of Giles v. Shaw, there were not so shown, nor was there any evidence that they formed any portion of the record, and were, for that reason, considered as entirely dehors the record. It is then manifest, that the record produced in evidence negatives the plea of nul tiel record, and the judgment for the plaintiff on the plea was therefore correctly given.

The objection that the judgment is uncertain, being for interest on the amount, without rendering that amount into a precise sum in damages, is well taken. In this particular, the judgment is manifestly erroneous for want of certainty.

Eddy, for plaintiff in error.

W. Thomas and Rowan, for defendant in error.

The judgment must, therefore, be reversed in that portion of it which gives the interest on the amount of the original judgment in Kentucky. But still, as the court here have the power to render such judgment as the court below ought to have rendered, and as the amount of interest is readily computable, the error is. to be remedied without sending the parties back for such purpose. The amount of damages can be ascertained by the clerk of this court, which should be allowed for the interest, and the judgment is to be entered in conformity with this view of that part of the case, at the costs of the defendant in error. ,

       See note 1 to Rust v. Frothingham, ante, 331.

         Ante, p. 125.

         A narr. in debt for 860l. 12s. Id., founded on a decree in chancery for that sum, with interest from a certain day, to the day of rendering the decree, is fatally defective. 1 Cranch, 259.

       Affirmed in Wilmans v. Bank of Illinois, 1 Gilm., 667.


text:
    N. Buckmaster, Plaintiff in Error, v. Henry Eddy, Defendant in Error.
    ERROR TO GALLATIN.
    A bond for the conveyance of land executed on the 9th day of January, 1819, is not assignable. The statute of 1807 governs in such case.
   Opinion of the Court by

Chief Justice Wilson.

This is an action brought in the circuit court of Gallatin county by H. Eddy, as assignee of William Grundy, upon a bond executed by Buckmaster to Grundy on the 9th day of January, 1819, and which is alleged in the declaration to have been assigned to Eddy on the same day. The penalty of the bond is eight hundred dollars, conditioned to be void upon Buck-master’s making a deed to Grundy to a certain tract of land. The defendant below, after having taken several exceptions to the proceedings, suffered judgment to go by default, and then moved in arrest of «judgment, on the ground that the instrument upon which suit was brought was not assignable, which motion was overruled by the court. This is assigned here, for error, and is principally relied on to reverse the judgment.

Gatewood and Semple, for plaintiff in error.

Eddy, for defendant in error.

It is not pretended that at common law, this bond is assignable. Has the statute then of 1807, which was the only one in force relative to the assignment of writings at the time this was executed, embraced it ? The first section of that statute makes all notes in writing for the payment of money, assignable ; the fifth section provides that “ the assignments of bills, bonds or other writings obligatory for the payment of money, or any specific article shall be good,” and the assignee may maintain an action in his own name. The writing upon which this action is brought, is for the conveyance of land, and does not come within the description of assignable instruments specified in the statute. The word “ property ” has been decided to be a general term, including every visible subject of ownership, but this comprehensive meaning of the term may be circumscribed, by coupling with it other terms which from their common acceptation, as well as their grammatical construction, are applicable to one class of property, in contradistinction to another. In the statute under consideration, however, the word property is not used ; the language is, “ money, or any specific article.” These are not technical terms, including as well real, as personal property. On the contrary they are terms applicable to objects of a personal nature, and can not, by a fair construction, be made to embrace real estate. The judgment of the court below must be reversed.

Judgment reversed.

       Rev. Code of 1807, p. 48.

       A deed containing mutual covenants, on the one part to lease a house and machine, and keep the machine in order ; and on the other, to pay the rent and return the machine, is not assignable so as to transfer the legal interest. Beezley v. Jones, 1 Scam., 34.
      The lessor can not assign a lease by indorsement, so as to give the assignee such a legal interest as can be enforced in his name, although the assignee may, in that way, acquire an equitable title to the rents. Chapman v. McCrew, 20 Ill., 101. Dixon v. Buell, 21 Ill., 203.
      Equity treats the assignee of a contract not assignable at law, as the party in interest, and will afford him relief in a proceeding instituted in his own name. Id.
      A judgment is not assignable so as to authorize an execution to issue in the name of the assignee; it should still issue in the name of the assignor. Elliott v. Sneed, 1 Scam., 517. McJilton v. Love, 13 Ill., 495.


text:
    Hampton Pankey, Plaintiff in Error, v. Stephen Mitchell, Defendant in Error.
    ERROR TO GALLATIN.
    An alteration made in a note without the knowledge or assent of the payor, renders the note void. The proper plea in such case is non est factum.

    Mitchell sued Pankey before a justice of the peace of Gallatin county for a debt of thirty-seven dollars, and recovered a judgment against him for that amount, and costs. Pankey appealed to the circuit court where the judgment of the justice was affirmed. On the trial there, a bill of exceptions was taken to the opinion of the court, from which the following facts appear, viz.: The plaintiff was sworn and stated that he had a note on the defendant, signed also by one Stephen Roach, for thirty-seven dollars, due about the first day of June, 1830, which was lost. The plaintiff then swore three witnesses, and examined one as to the description and contents of said note, and rested his case. The defendant then examined one of these witnesses, and proved that the defendant, with Roach, at his own house, executed a note to plaintiff for the sum of thirty-seven dollars, and that the consideration thereof was, that the plaintiff should lend to Roach thirty-seven dollars in money. Another of these witnesses testified that he was present at the plaintiff’s shop, when Roach came with the note in question to plaintiff to get the money, and saw plaintiff pay the money. The defendant was not present. The witness further stated that when the note was first brought, the plaintiff objected to receiving it; alleging that the sum was not large enough. The plaintiff and Roach went together to plaintiff’s house and got the money. The defendant then introduced testimony to prove that the plaintiff acknowledged that he had altered the note executed by the defendant and Roach, from thirty-seven dollars to forty-four dollars and fifty cents. It was also proved that a note was afterwards seen in the possession of the plaintiff for forty-four dollars and fifty cents, signed by Roach and the defendant, which appeared to have had the amount that was first inserted, erased, so that it could not be read, and “forty-four dollars and fifty cents,” inserted in lieu, and plaintiff remarked, that was the note in controversy between him and defendant. This was all the testimony. The defendant thereupon then offered to plead non est factum, and deny on oath that he had executed a note to plaintiff with Roach, for forty-four dollars and fifty cents, or that he had given any authority for the alteration of the note for thirty-seven dollars. To this, the plaintiff, by his attorney, objected, because the merits had been gone into, and no such plea had been filed, or notified to the plaintiff, and the court sustained the objection, refused to receive the plea, and affirmed the judgment of the justice. The exception was to this opinion, and the case brought up by writ of error.
    Gatewood, for plaintiff in error.
    Eddy, for defendant in error.
   Opinion of the Court by

Justice Smith.

In this case it is clear from the evidence that the plaintiff in the court below made an alteration in the amount of the joint note signed by Pankey and Eoach, increasing the sum from thirty-seven dollars to forty-four dollars and fifty cents, without the consent of Pankey. This rendered the note itself void ; and on it no recovery could be had. The note is sued on as a lost note, and until it was produced, or evidence offered to prove the alteration, the defendant in the court below could not be supposed to be in a condition to plead non est factum. The offer to do so so soon as the evidence disclosed the fraud, was sufficiently in time, as the proceedings were not in writing, being an appeal from the justice’s decision to the circuit court, and therefore the court erred in not permitting the plea to be received.

But upon the whole evidence, as disclosed by the bill of exceptions, without even the tender of the plea, we are of the opinon that the judgment ought, on the ground of the alteration and fraud,.to have been for the defendant. The judgment of the circuit court is reversed with costs.

Judgment reversed.

       In Gilleett v. Sweat, 1 Gilm., 489, the court say: "We need not cite authorities to prove that any material alteration of a note by which any of the parties to it would be prejudiced, or where its terms are changed, so as to alter the relative liabilities of the parties, will destroy the legal effect of the entire instrument.”
      The rule is well established in England, and in many of the courts of this country, that it is incumbent upon the party offering in evidence an instrument which appears to have been altered (as by interlineation,) to explain such alteration; and in the absence of all evidence, either from the appearance of the instrument itself, or otherwise, to show when the alteration was made, it must be presumed to have been subsequent to the execution of the instrument. “And such,” says the court, “ we believe to be the true rule.” Though the alteration may be explained by the appearance of the instrument upon inspection, and does not necessarily require proof dehors the instrument. Walters v. Short, 5 Gilm., 258. Montag v. Linn, 23 Ill., 551.
      The party receiving a paper interlined in a material part, should see that the interlineation is noted in the attestation. Such interlineations must be explained by those who claim the benefit of them. Hodge v. Gilman et al., 20 Ill., 437.
      An obligee may make immaterial alterations in a bond, if they are consistent with the true contract of the parties. Reed v. Kemp, 16 Ill., 445.
      Adding the words “ten dollars and fifty interest” immediately after the words “ value received,” in a promissory note, is not a material alteration ; such words would be construed to mean that a portion of the value received by the makers, consisted of ten dollars and fifty cents of interest. Gardiner v. Harback, 21 Ill., 129.


text:
    William A. Beaird, Appellant, v. Mary Foreman and others, Appellees.
    APPEAL FROM ST. CLAIR.
    If an officer acts illegally or oppressively in executing process, the remedy against him is at law, and a court of equity can not interfere.
    The defendant in an execution, who desires a levy upon any particular tract of land, should exhibit to the officer all the evidences of his title to it. The officer is not bound to take any loose memorandum of title which the defendant may show him.
    Where the plaintiff in an execution, and the officer serving it, are made parties to a bill for an injunction by the defendant, if they do not participate in the acts of the officer in making the levy, &c., they need not answer the bill; the answer of the officer is sufficient to authorize the court to proceed and make a decree.
    As a general rule, a court of chancery will not adjudge executions regular on their face, void, at least until an attempt is made in the tribunal from which they issued, to obtain relief against them.
    The defendant, together with Jonathan Lynch, Mary Ann Chartrand, John Norton and Thomas Baldwin, who were judgment creditors of the appellant, issued executions upon their several judgments against the appellant who was then sheriff of St. Clair county, and placed them in the hands of Pulliam, the coroner of that county, to be executed. Pulliam, by direction of the defendants, levied said executions upon the personal property of Beaird, but before the sale, Beaird obtained an injunction from the judge of the fifth judicial circuit, to stay all proceedings on said executions, setting forth in his bill, that he had real estate unincumbered, in Madison, St. Clair and Randolph counties, which ought to be first taken in execution and sold, before resort could be had to his personal property, and relied on the proviso in the 9th section of the “act concerning judgments and executions,” approved Jan. 17, 1825, which declares, “that the plaintiff in any execution, may elect on what property he will have the same levied, except the land on which the defendant resides, and his personal property, which shall be last taken in execution.” Pulliam, the coroner, alone answered the bill, denying that Beaird had any title to the lands specified by him as lying in St. Glair county, except Ms homestead, and that they were mortgaged, prior to the judgments on which these executions issued, to the State Bank, and alleging that Beaird never surrendered to him the lands in Madison and Randolph, or the title papers to the same, to satisfy said executions, and that all his lands lying in St. Clair county, except his homestead, had been previously sold on executions against him. On' filing this answer, the defendants moved to dissolve the injunction and dismiss the bill. The court dissolved the injunction, but refused to dismiss the bill, and thereupon, by consent, the bill was dismissed and an appeal taken by Beaird to the supreme court. The circuit court awarded damages in favor of the appellees, though some of them were not served with process, had not appeared or answered. Some exceptions were also taken to the validity of the executions in virtue of which the levy complained of was made.
   Opinion of the Court by

Justice Smith.

The points presented for the consideration of this court in the present case are, that the circuit court erred in dissolving the injunction:

1. - Because a part of the defendants were never served with process, and another portion never answered; and

2. Because the executions were not shown to the defendant in the court below, and that the same are void, and conferred no authority to" the coroner to proceed under them.

To understand these objections fully, it may be necessary to recapitulate the objects of the bill.

The complainant sought to enjoin perpetually, all the defendants to the bill, who were several judgment creditors, except the coroner, in their separate and individual capacities, from proceeding to collect their several judgments by execution, because he alleges that, under the laws of this state, the property so taken in execution by the coroner was not liable to be sold, being personal property. The authority of the coroner is not disputed as such coroner, but that the appellant having real estate sufficient to satisfy the executions in his hands, it was the duty of the coroner to have levied on that, and sold it first, before he could resort to the personal estate. This ground was assumed in the argument, though it will be perceived it is not assigned as one of the causes of error, nor could it have been sustainable, when it is remembered that, if there had been any oppressive or illegal act of the coroner in the levy on the property, the circuit court possessed sufficient power to stay the proceedings under the execution and remedy the evil if one had existed. That this power is a necessary incident to all courts to prevent abuses of process, will not be denied, and that it is the proper mode to which to resort, rather than a court of equity, seems equally certain. The complainant having then a full and perfect remedy at law, the bill could not properly be sustainable for that reason.

But, on examining the answer of the coroner, it is clearly shown, that all the real estate in St. Clair county of the complainant, except the tract on which he resided, had been sold previously by the coroner upon other executions, or was subject to incumbrance by mortgage, and that the complainant neither offered the lands on which he resided, nor did he exhibit his title deeds, or manifest any desire to deliver any estate whatever, either real or personal, to be sold in satisfaction of the executions, previous to the levy made by the coroner on his personal estate. Without then deciding whether the defendant in a judgment, or the plaintiff, has the right of selecting the personal property, or the lands upon which the defendant resides under an execution issued under such judgment, it will be apparent that the complainant has not shown that at any time before the levy upon Ms personal estate, or even at that time, did he offer his real estate to be sold upon the executions of the defendants.

It will surely not be contended that an officer is bound to take any loose memorandum which a defendant may offer as evidence of his title to lands, and thereupon expose the same for sale. Every reasonable evidence of title should be exhibited, and the officer satisfied that he was not proceeding to expose to sale the property of another person before the exemption could be claimed for the personal estate if that exemption be allowed by law; but which is not now decided, because the complainant has not shown himself entitled thereto, even if the statute be so construed. There is, then, no ground of equity disclosed, by which the complainant should be entitled to relief on this part of the case.

The error relied on in the first point, is readily met, when it is seen that the coroner could alone answer to the allegations of the bill as to the manner of the levy, and the property taken, which is the sole ground relied on for the equitable interposition of the court. The judgment creditors were entire strangers to the acts of the coroner, could not in any way be supposed to have participated therein, and if called on to answer as to that part of the bill, could only have avowed that the coroner had done what he distinctly states he has done. Their answer or appearance would then have been wholly unimportant for the decision of the question before the court on the motion to dissolve the injunction, and for that reason, the objection fails entirely as a ground of error. The coroner’s answer to the main allegations of the bill, relied on for relief, fully meets those allegations, negativing some of the most important ones, and particularly as to the time when the levy was made. The second ground, that of not showing the executions, and the mode of levying them are already anticipated by the remarks on the power of the court below on motion, to have remedied all irregularity, if any existed; and indeed, if the process of execution was void, or used oppressively for malicious purposes, the officer would no doubt be liable for whatever injury might be sustained.

McRoberts, for appellant.

Blackwell, for appellees.

If, however, the executions were void, and conferred no authority to the coroner to proceed under them, it is certain that all the parties concerned would be answerable as trespassers. But it is not by any means certain that this court would proceed to adjudge executions apparently regular upon their face, void, at least until an effort had been made in the tribunal from which they issued, for relief, in conformity to the views herein already expressed on that point. No attempt has been made to the law side of the circuit court to set aside or quash those executions as having been irregularly issued, or as being void on their face, and it will not be denied if either exist, that relief at law by making such application also exists.

The bill having been dismissed by the consent of parties, after the dissolution of the injunction, no question is now made, whether the dissolving an injunction is a mere interlocutory order from which no appeal or writ of error lies.

Upon a full view of all the grounds presented in this case, it is the opinion of the court that there are no sufficient equitable grounds of relief disclosed by the complainant to entitle him to the interposition of a court of equity, and that the circuit court did not err in dissolving the injunction and dismissing the bill. The judgment of the circuit court is, therefore, affirmed, with costs.

Judgment affirmed.-

      Ante, Reynolds v. Mitchell and others, 177.

       See note to Greenup v. Brown, ante, 252, and More et al. v. Bagley et al., ante, 94. Dunlap v. Berry, 4 Scam., 327.
      The statute now in force, prescribing what property shall be first taken in execution, is nearly identical with that of 1815. Purple's statutes, 643, sec. 9,


author: Lockwood, J.,

text:
    James Semple, Appellant, v. Thomas S. Locke, Appellee.
    APPEAL FROM ST. CLAIR.
    It is erroneous to take a judgment by default, when there are pleas filed by defendant, in compliance with a rule against "him to plead; in such case, the plaintiff has no right to have the defendant called.

       See note to White v. Thompson, ante, p. 72.

   Lockwood, J.,

delivered the opinion of the Court. This was an action of debt on a record from a foreign state, brought in the St. Clair circuit court, by Locke against Semple and another. Semple was alone served with process. On the first day of the term to which the process was returnable, the plaintiff obtained a rule that defendant should plead on the next day ; and thereupon the defendant filed his pleas of nul tiel record, and payment. The record then states, that the defendant being called, came not, but made default, and upon which the court gave judgment for the debt. Prom this judgment, the defendant has appealed to this court, and has assigned for error the entry of a judgment by default, without noticing the pleas put in.

This was clearly erroneous, according to the case of White v. Thompson, decided by this court in Nov. term, 1823, ante, p. 72. When the defendant filed his pleas, he had complied with the rule obtained against him, and the plaintiff had no right to have the defendant called. There was no act in court for the defendant to perform, until the plaintiff had demurred or replied. It was, therefore, error to enter a judgment by default in a case so situated.

Prickett and Semple, for appellant.

Cowles, for appellee.

The judgment must be reversed with costs, and the cause remanded to the St. Clair circuit court for further proceedings not inconsistent with this opinion.

Judgment reversed.


text:
    Kerr and Bell, Plaintiffs in Error, v. William B. Whiteside, Defendant in Error.
    ERROR TO MADISON.
    A judgment by default set aside, after the term at which the judgment was rendered.

    A sheriff's return contradicted by his own affidavit and that of the defendant.

    Upon a division of the court, the judgment below is affirmed.
    The plaintiffs in error brought their action on the case in the Madison circuit court against the defendant in error, former sheriff of said county, for a false return upon an execution in favor of the plaintiff's against one Joseph Meacham. At the March term, 1824, the defendant’s default was entered, the process against him being returned served, and a jury of inquiry impanneled, who assessed the plaintiff’s damages to $517 81-100, for which the court rendered judgment. At the March term, 1825, the defendant moved the court to set aside the judgment by default, on an affidavit of merits. The affidavit also stated that he had not been summoned to appear, and had no knowledge that a suit was pending. The defendant also produced the affidavit of the sheriff of the county, as to the service of the summons, from which it appeared, together with his own affidavit, that the defendant did not know that he had been served with process. This motion was continued until the August term, 1826, when the court set aside the judgment by default, and the cause was continued from term to term, until the July term, 1827, when the defendant pleaded not guilty; and upon the plaintiffs being called, they made default, a nonsuit entered against them, and a judgment rendered for the defendant for the costs.
    The plaintiffs sued out a writ of error, and assigned for error, 1st, that the court below erred in setting aside the judgment by default; 2d, because they received the affidavit of the sheriff, contradicting his return of service on the defendant; 3d, because the court erred in receiving the defendant’s affidavit, contradicting the sheriff’s return of service on the defendant; 4th, because the court set aside a regular judgment, and regularly obtained, at a term subsequent to the term at which it was obtained.

      Cowles, for plaintiffs in error,
    in support of the errors assigned, cited the following authorities: 6 Mass. Rep., 325. 4 ib., 478. 10 ib., 313. 1 Peters’ Rep., 155. Serg. Cons. Law, 382-3. 1 Tidd’s Practice, 508. 2 Dunlap’s Prac., 764-6. 1 Dunl., 321-2. Ib., 378-80.
    Semple, contra,
    made the following points:
    Where any error has been committed by the officers of the court, or gentlemen of the bar, it may be corrected on motion, at a succeeding term of the court. 1 Hen. and Munf., 204. 1 Salk., 50, in note.
    In civil cases, a special verdict may be corrected by notes of counsel, after a writ of error brought. 1 Salk., 47, and cases there cited. A judgment may be amended after the term at which it is signed, and even after error brought, and in nullo est erratum pleaded. 2 Arch. Prac., 276, and cases there cited.

      A judgment by default can be set aside after a fieri facias has issued. 3 Salk., 224.
    This motion is in the nature of a writ of error coram vobis; or an audita querela. 1 Bac. Ab., 194. 2 ib., 215. 1 Strange, 606-690, and cases there cited. 2 Wash., 135. 4 Munf., 377.

       See note, Morgan v. Hays, ante, 126.
      In Garner v. Crenshaw, 1 Scam., 143, the court held that an application to set aside a default is addressed to the sound discretion of the court, and no writ of error will lie to correct its exercise.
      It is too late to make an application to set aside a default after one term of the court has intervened between-the term at which the default was taken, and that at which the motion was made. Ibid.

       There is great contrariety in the decisions of the different states, on the question whether the return of an officer is conclusive, or whether it may be shown by a party interested to be false. In the following cases, it has been held to be conclusive: Hawks v. Baldwin, Brayt., 85. Purrington v. Loring, 7 Mass., 388. Wilson v. Loring, id., 392. Bots v. Burnell, 11 id., 163. Boston v. Tileston, id., 468. Wellington v. Gale, 13 id., 483. Lawrence v. Pond, 17 id., 433. Whitaker v. Sumner, 7 Pickering, 551, 555. Diller v. Roberts, 13 S. and R., 60. Stinson v. Snow, 1 Fairf., 263. Lewis v. Blair, 1 N. Hamp., 68. Henry v. Stone, 2 Rand., 455. Zion’s Church v. St. Peter’s Church, 5 Watts and Serg., 215. Gardner v. Small, 2 Harr., 162. Rose v. Ford, 2 Pike, 26. While in the following cases it has been held not to be conclusive: Butts v. Francis, 4 Conn., 424. Watson v. Watson, 6 id., 334. Cunningham v. Mitchell, 4 Rand., 189. Chapman v. Cumming, 2 Harr., 11. And in our own state they have lately held it was only prima facie evidence, and may be questioned by plea in abatement. Mineral Point Railroad Co. v. Keep, 22 Ill., 9. Owens v. Ranstead, id., 161.
      But this is understood as applying only to the parties to the suit. It would not be applicable in a proceeding against the officer for a false return, nor between persons not parties to the suit; then it would never be held more than prima facie evidence.

   Lockwood, J.,

delivered the opinion of the Cowrt. In this case, the court are equally divided in opinion, and therefore the judgment of the court below is affirmed,

Judgment affirmed.

         Whenever the supreme court shall be equally divided in opinion on hearing an appeal or writ of error, the judgment of the court below shall stand affirmed. Rev. Laws of 1827, p. 319, sec. 36.


author: Smith, J.,

text:
    The Auditor of Public Accounts, Plaintiff, v. James Hall, late Treasurer, Defendant.
    Notice of a motion by the auditor against a delinquent treasurer must be certain and specific, and must ask for a judgment.
    This was an original suit brought in the supreme court by the auditor against James Hall, late treasurer of the state, in pursuance of the act defining the duties of auditor and treasurer, approved March 24, 1819. The notice for the motion was in the following words :
    To James Hall, late treasurer of the state of Illinois. Take notice, that before the next supreme court, to be held in Vandalia on the first Monday of December, 1831,1 shall move against you for default, in not paying over the sum of fourteen thousand eight hundred ninety-nine dollars, ninety-six cents, which was in your hands as treasurer, in January, 1831, as appears by your report to the last legislature.
    October 22,1831.
    Alfred Cowles, Circuit Attorney,

      For the Auditor of Public Accounts.

    On this notice the sheriff of Payette county made the following return : “ Delivered a copy of the within notice to James Hall, Oct. 24,1831.” •
    The defendant moved the court to dismiss the motion on the following grounds : First. The notice filed in this case does not apprize the defendant that the plaintiff will move for any judgment.

      Second. The motion does not specify for what the plaintiff will proceed by motion against him.

      Third. There is no account or other instrument or copy thereof as the foundation of the motion filed in the cause.

      Fourth. The motion does not lie in this case at the suit of the auditor, and the auditor has not given any notice.

      Cowles, state’s attorney, for plaintiff.

      Blackwell and McRoberts, contra.

      Laws of 1819, p. 242.

   Smith, J.,

delivered the opinion of the court. A majority of the court is of opinion that this motion be dismissed for insufficiency of the notice. The notice is defective in not setting forth the cause of action with sufficient certainty—no particular judgment is asked for, nor does the notice show how, or at what time defendant was indebted, nor is the reference to the report certain, to remove these objections.

Motion dismissed.


author: Browne, J.,

text:
    J. and M. Littleton, Appellants, v. Moses, a man of color, Appellee.
    APPEAL FROM UNION.
    A judgment will not be reversed, if the court give instructions to the jury, substantially as asked for.

    It is not error in the court below to refuse a new trial.
    This was an action brought in the Union circuit court by Moses, a man of color, for a trespass, assault and battery, and false imprisonment; to which the defendants pleaded not guilty. The jury found a verdict for the plaintiff for forty dollars in damages. On the trial, the defendants moved the court to instruct the jury, that there must be proof of actual restraint at the time of action brought, or a claim to restrain plaintiff, before the plaintiff can recover in this form of action.

      Second. That there is nothing in the pleadings in this case different from a common action of assault and battery and false imprisonment, and the question of freedom or slavery is not involved in the pleadings.

      Third. That by virtue of our constitution, the plaintiff was a free man, and had a right, by virtue of the laws, to hire himself to whom he pleased.

      Fourth. That for the services rendered by the plaintiff, he can recover in an action of assumpsit, but not in this action.

      Fifth. That the fact of seeing plaintiff working for defendants is not sxxfficient in law to establish an illegal restraint.
    The court instrxxcted the jury that the mere fact of the plaintiff’s woi’king for the defendants, and under their control, was not of itself sufficient (unconnected with other circumstances) evidence of his being restrained of his liberty ; and further, tlie coxxrt instructed the jury that in this form of action, the plaintiff could not recover for services rendered, unless the jury should be satisfied from the evidence that there was restraint or force used to compel him to work, or to abridge him of his liberty. The court further instructed the jxxry, that if they should be satisfied from the evidence, that the defendants had exercised restraint or force over the person of the plaintiff, that they should find for the plaintiff a verdict. The coxxrt also instructed the jury, that from the state of the pleadings it was not different from the common action of assault and battery and false impi’isonment. The defendants moved for a new trial, which the coxxrt overruled, and excepted to the opinion of the court in refxxsing to give the instructions asked for, and in refxxsing anew trial, and brought the case, by appeal, to the supreme court.

      Brcese, for appellants,
    assigned for error, that the court did not give the instructions as asked for by the defendants below; 7 Cranch, 506. That the count erred in giving the instructions they did give; and also erred in giving judgment in this action, if brought to try the plaintiff’s right to freedom, for more than nominal damages. 2 Call, 343.
    Baker, contra.

       See note 2, to the case of Humphries v. Collier et al., ante, p, 297.

   Browne, J.,

delivered the opinion of the court. This was an action of trespass and false imprisonment, in the circuit court of Union county, and brought here by appeal. The defendants, by their counsel in the court below, pleaded not guilty. Tlie counsel for the defendants moved the coxxrt to instruct the jury on certain points of law, which was substantially given by the court as asked, so far as they had any relation to the points before the court. The jury returned a verdict for the plaintiff below for forty dollars in damages. The counsel for the defendants then moved the court for a new trial, which was overruled, to reverse which opinion this appeal was brought.

It is a principle well settled, that the refusing to grant a new trial is no cause of appeal, and it has been so decided, frequently, in this court. Clemson v. Kruper, ante, 210, and the cases there referred to. This court is, therefore, of the opinion that the judgment of the court below be affirmed.

Judgment affirmed.

       See pote to the case of Sawyer v. Stevenson, ante, p. 24,


author: Smith J.,

text:
    Josiah T. Betts, Appellant, v. Pierre Menard, Appellee.
    APPEAL FROM RANDOLPH.
    The ferry law of Feb. 12, 1827, does not authorize a county commissioners’ court to grant alicense to ferry to a corporation.
    The county commissioners’ court is a mere creature of the statute, and though created by the constitutution, its powers and duties are defined by the law, and in some instances are ministerial, and in others judicial.
    In a legislative act where “ persons” are spoken of, none other than natural persons are meant.
    The act of incorporation, creating the trustees of Kaskaskia a body corporate, no where confers the power to take a grant of a ferry license.
    A corporate body can act only in the manner prescribed by the act of incorporation which gives it existence.
    This suit was originally brought by Menard, before a justice of the peace of Randolph county, by motion and notice, under the eleventh section of the act of February 12, 1827, to recover certain penalties, alleged to have accrued to him as proprietor of a ferry across the Kaskaskia river, from Betts, who at the time of the notice and motion was engaged in running a ferry boat within one mile of the ferry of Menard, across the same river, under a license granted to the trustees of the town of Kaskaskia, under whom said Betts acted, by the county commissioners’ court of Randolph county, at the August term, 1830, of said court. The justice of the peace, on a hearing of the cause, gave judgment against Menard, which was taken by appeal to the circuit court of Randolph county, and there reversed, and a judgment entered in favor of Menard, for ninety dollars, the amount of the several penalties accrued and the costs. From this judgment Betts appealed, and assigned for error, among others, the decision of the circuit court, declaring that the ferry license granted by the county commissioners’ court to the board of trustees of Kaskaskia, was void, and that the circuit court erred in deciding that a party who had a license to ferry, was as much amenable to the penalties of the law, as one who had no such license, and that the court erred in deciding that the legislature of the state could grant an exclusive right to the use of any of the public highways of the state.
    Breese, in support of the errors assigned, insisted upon the following points: First, the license granted by the county commissioners’ court to the trustees of the town of Kaskaskia, was valid, and conferred a right to ferry on tiie board, of trustees. The act of 1827, gives the county commissioners’ court exclusive jurisdiction and control over ferries. Rev. Laws of 1827, p. 220, et seq. That court is a court of record, though of limited jurisdiction, and when such court has decided upon any matter within their jurisdiction, that decision can not be reversed in any collateral way, or in any action indirectly bringing into review their acts. Laws of 1819, p. 175; 3d Cranch, 300; Ooxe’s Dig., 407; 3d Wheat., 246, 315. Having such jurisdiction, that court had a right to decide upon all the facts, without the existence of which no license could be granted by them. Their decision as to the right of the trustees to have a ferry license, is final and conclusive as to that right, so far as the present motion is concerned, and not void. 6 Wheat., 109 ; Coxe’s Dig.,408,409, 411.

      Second. Though the county commissioners’ court may have decided erroneously in granting a license to the trustees to keep a ferry, yet, having jurisdiction of the subject matter, their decision is not void. Coxe’s Dig., 409, 410 ; 1 Dane’s Abr., 579; 3 ib., ch. 75, Art. 4.

      Third. The act of 1827 authorizes the county commissioners’ court to grant a ferry license, and as many of them, without regard to distance, as the public exigencies may require. Rev. Laws of 1827, p. 220.

      Fourth. The lltli section of the act of 1827 was only intended to punish those who, without any color of right, should establish a ferry within one mile of a licensed ferry. The act excepts those ferries which may hereafter be licensed. Jb., 224.
    Fifth. The ferry law, or the 11th section of it, is penal ip its character, and must be construed strictly. Black. Com. and other elementary writers, passim.

      Sixth. The act of 1827, (the ferry act,) so far as it designs to grant an exclusive privilege to use or navigate the public navigable waters of the state, is null and void. Ord. of 1787, art. 4.

      Seventh. The act of 1829, supplemental to the act of 1827, does not embrace cases where a person has a regular license to ferry. Rev. Laws of 1829, p. 73.

      Eighth. The acts of the legislature clearly refer to two kinds of ferries—the one licensed, and the other unlicensed. Rev. Laws of 1827, p. 220, &c.; Rev. Code of 1829, p. 73.
    Hall, contra,
    contended that the county commissioners’ court is authorized by the act of Feb. 12,1827, to grant ferries to ixidividuals, not to corporate bodies. They transcended their powers in granting a ferry license to the trustees of Kaskaskia. The trustees are not shown to have any power to accept a ferry license. They have no such power by the act of incorporation.
    The county courts are forbidden by the statute of 1829, from establishing any ferries within one mile of those established before the passage of that act. Rev. Laws of 1829, p. 73; 2 Kent’s Com., 226, 239: 1 Cond. Rep., 374, 376; 2 ib., 501, were cited in support of the positions assumed.
    Baker, in reply.
   Smith J.,

delivered the opinion of the court

Several points have been presented by the counsel for the appellant, upon which it is contended that the judgment of the circuit court ought to be reversed.

It will however be unnecessary to examine but one question presented by the record and bill of exceptions, and upon which this case must entirely depend.

The appellant justified the keeping up and maintaining his ferry in the action in the circuit court, under the license granted by the county court to the trustees of the town of Kaskaskia -as a body corporate, as their agent constituted in writing. The date of the license granted to the trustees, is the 15th of August, 1830, and that of the agency, the 30th of the same month. It appears that the appellant actually conducted the ferry, and transported the passengers on the times, and in the manner and number as alleged by the plaintiff, and it is conceded that the amount of the judgment is not the point in controversy, but the right to maintain and exercise, the ferry privileges as granted to the corporation.

The accuracy then of this decision, necessarily involves the question, whether the county court possessed the power to grant a license to a corporate body to exercise ferry privileges ? and if so, whether the corporation could legally accept a right thus offered to be conferred ?

The county commissioners’ court is the mere creature of the statute, which gave to it all the powers which it exercises; and although it is directed to be created by the constitution of the state, as a court, still its whole powers and duties are also directed by that instrument to be, and in fact are, defined by law. The fourth section of the act defining its duties, and declaratory of its powers, restricts their exercise within the county, enumerating, among other special powers, the right to grant licenses for the erection of ferries, leaving it, doubtless, to the exercise of its legal discretion, to determine in what cases it should be done, as restricted by various legislative acts.

It will not then be doubted, that although it is a court of record, still its jurisdiction is special and limited in its character ; and from the various anomalous duties it • is by law required to perform, it will be seen that those duties and powers are in some instances ministerial, and in others judicial. The several acts relative to the powers and duties of the county commissioner’s courts, which have been passed at various times by the legislature of the state, have invariably defined the manner of making the application for such license, and also prescribed the mode of granting, and to whom, and upon what conditions.

Those acts, and particularly the act of the 17th February, 1827, Rev. Laws, 1827, page 220, being the one under which the license to the trustees was granted, speaks of “ persons” only, and this act in the first section, speaks of granting licences to “ qualified persons,” and has so restricted the granting tcf such persons. The proviso to this section reserves the right of preference, however, to the proprietors of the lands adjoining to, or embracing the water course over which the ferry is proposed to be erected.

The second section requires, when such license shall be granted, the party receiving the grant shall give bond and security to be approved by the court, in a sum not less than $100, nor more than $500, payable to the county commissioners of the county, conditioned that “he, she, or they,” will keep _sucli ferry according to law. The third and fifth sections provide how such ferries shall be kept, and imposes certain duties on their owners, particularly as to the expediting the passage of public messengers, and expresses, and inflicts penalties and fines for a non-observance of such requisitions.

The ninth section declares such privileges shall be exclusive, and the twelfth section gives certain privileges to ferry keepers, and exemption from the performance of militia, jury and other duties, in consideration of giving free passage to public messengers and others. It can not then be doubted, that the legislature never intended to authorize the county commissioners’ court to grant licenses to keep ferries to any other than natural persons. It is impossible to draw from the whole context of this act, or any other existing law on the same subject, in connection with the whole or any of the several parts thereof, the inference that a grant could be authorized to be made of a ferry license to a corporation.

It will not, we apprehend, be denied that in the enactment of legislative bodies, where persons are spoken of, any other than natural persons are intended, unless it be absolutely necessary to give effect to some powers already conferred on artificial persons, and which it is necessary should be exercised by them to carry into effect the objects contemplated in their grant or charter. In the present case, however, the requisition of the bond, security and other acts required to be done, and penalties imposed for the non-observance of the provisions of the law, are such that they could scarcely be complied with by a corporation, and not in any way by the trustees in the present case, and evince most conclusively, that not even by implication, can it be contended, such a body could have been intended, as entitled to require the granting of a license to carry on a public ferry. Hartford Fire Ins. Co., 3 Conn. Rep., 15. It is also impossible to conceive the idea that if the county court had the general powers to determine in what instances they might issue a license, and to whom, and that such an act was legally done, that the trustees in this case were in any way capable of taking the grant.

The act of incorporation, creating the trustees a -body politic, no where confers the least semblance of such a power, much less, an authority to delegate the right to others. The right to take such a grant is entirely beyond the sphere of their action, which relates to other duties connected with the town. The corporation is a public body, for certain defined and specified objects, and must act within, and can not legally in any instance, transcend its limits. Its orbit is defined, and in its action, it can not revolve beyond it. It can not compromit its members by engaging in an act wholly unauthorized, and never in any way contemplated in its charter. To do that would be to expose the inhabitants of the town to possible onerous burdens, expenses and losses which might most seriously affect them. A corporate body can act only in the manner prescribed by the act of incorporation which gives it existence. It is the mere creature of the law, and derives all its powers from the act of incorporation, and is incapable of exerting its faculties only in the manner that act authorizes. 2 Cranch, 127, 167.

The exclusive privilege of a ferry is a monopoly, and can it be seriously contended that monopolies may be conferred by implied powers, and received in a case where no right whatever is given to take, to the direct injury of another, on whom the law has already conferred the exclusive right ?

It is too obvious to doubt that the county commissioners’ court had no direct or even implied power to make the grant in question, and it is equally certain that the trustees of the town had not the least power conferred on them by their act of incorporation, to accept it. The license, we are satisfied, was absolutely void, as granted without authority, and consequently? the justification set up under a void license, necessarily fails.

The judgment of the circuit court is therefore afíirmed; and the appellee must recover his costs in this court, and in the court below.

Judgment affirmed.

       Chief Justice Wilson did not sit in this cause.

       See note to Woodworth v. Paine’s admr., ante, 374,

       A corporation must strictly pursue the law creating it, or giving it power to act. Fitch et al. v. Pinckard et al., 4 Scam., 79.
      A corporation, which is a mere creature of the law, can only exercise such powers as are conferred upon it by the act of incorporation. Trustees, &c. v. McConnel, 12 Ill., 140.
      Corporations are artificial persons, created with limited powers and capacities, and subject to the general laws and legislation of the state, as natural persons are. Bank of the Republic v. Hamilton County, 21 Ill., 53.


text:
    Philip Hargrave, Appellant, v. David Penrod, Appellee.
    APPEAL FROM UNION.
    It is the duty of an officer to whom an execution is directed and delivered, to make reasonable exertions to levy it on the property of the defendant, and if he is guilty of gross negligence in this, he will be liable.
    The mere want of knowledge of the debtor’s having estate or effects, or an averment that the plaintiff did not point them out to him, on which to levy, is not sufficient to excuse the sheriff.
    The right of action of a judgment creditor against a sheriff for not levying a Ji. fa. is not taken away by his discharging the debtor from a ca. sa. issued at his instance, although such discharge might be a satisfaction of the judgment; the creditor’s remedy against the sheriff was perfect before such discharge.
    It is not error to permit clerical errors to be amended on trial.
    Eee-bills are governed by the same rules as executions, and after ninety days they are fundi officio.

    The omission to state a sum at the end of the narr. as the damages, can be taken advantage of only in the court below. An objection on that account is purely technical.
    This is an appeal from a judgment rendered in the Union circuit court, in favor of the appellee, and against the appellant, who sued the appellant in an action on the case. The damages were laid in the summons at $300. There were two counts in the declaration, both of which are substantially the same; in each of which the appellee complained, that on the 20th day of April, 1830, he recovered a judgment in the Union circuit court in his favor, against one William Lamar, for $147.06J damages and costs, upon which judgment on the 12th day of May in the same year, he sued out his fieri facias for the obtaining of satisfaction of said judgment, which writ was directed and delivered to the appellant as sheriff of Union county, to be executed; and that being such sheriff, and while he had the writ in his hands, Lamar had goods and chattels of which the money might have been made; of which goods, &c., the first count alleges, the appellant had notice, but the second count does not; and that appellant neglected to levy the execution on those goods, &c., whereby the appellee was deprived of the means of collecting his judgment, to his great damage, but no sum is named as the amount of the damage. To this declaration, the appellant pleaded, besides the general issue, the following special pleas, to wit: And for further plea in this behalf, the said defendant says actio non, because he says that he did levy on and sell, by virtue of said execution and for the satisfaction of the same, all the goods and chattels, &c., belonging to the said Lamar, and which were known and notified to the said defendant, all which, &c.
    And for further plea in this behalf, the said defendant says, plaintiff aforesaid actio non, because lie says, that after the return by this defendant into the office of the clerk of the circuit court, of the said writ of execution mentioned, and before the commencement of this suit, he the said plaintiff caused to be issued and put into the hands of this defendant as sheriff as aforesaid, a certain other writ of execution in his said plaintiff’s favor, against the said William on said judgment, which writ is commonly called a writ of capias ad satisfaciendum, on which said writ, he, said Lamar, was arrested by his body and taken into the custody of this defendant ; and after being and remaining in such custody for a long time, was by the said plaintiff discharged from custody and permitted to.go at large; and this he is ready to verify, &c., wherefore, &c. To these pleas the plaintiff demurred generally, which the court sustained. The issue on the plea of not guilty was tried, and a verdict rendered for the appellee for $155.55, for which the court rendered judgment.
    On the trial, the plaintiff, after reading to the jury the record of a judgment in the Union circuit court for $147.064 damages, and $21.064 costs, offered in evidence an execution for $147.064 debt, and $21.064 costs, to the reading of which to the jury, the defendant objected; whereupon the plaintiff moved the court for leave to amend said execution, by erasing the word debt, and inserting the word ' damages; which amendment the court permitted, and then admitted the execution in evidence, to which the defendant excepted. The defendant then offered in evidence a certain fee-bill, put in his hands as sheriff for collection, against Lamar, and in his hands at the same time the execution in the declaration mentioned was in his hands, which fee-bill, and the return thereon showed, that the defendant had levied it upon a certain horse belonging to Lamar, and sold the horse and applied the proceeds in satisfaction of the fee-bill. The levy on the horse was made after ninety, days from the date of the fee-bill, as the defendant acknowledged before the court and jury. To the reading of this fee-bill in evidence, the plaintiff objected, because it was levied after the ninety days, which objection was sustained by the court; to which opinion of the court the defendant also excepted, and appealed to this court.

      Baker, for appellant,
    insisted that the first special plea contains a sufficient answer to the plaintiff’s declaration, and the facts stated in it are admitted to be true by the demurrer. If it be said that it lacks form, and that it amounts to the general issue, the answer is, that the objection can only be taken advantage of by special demurrer.- 1 Ch. Pl., 498. 10 Johns., 289. 5 Bac. Abr., 370, and note [a] in margin. 8 Cranch, 30.
    The second plea is a full answer to the declaration, and is a complete bar to a recovery in this case. It shows that subsequently to the return of the writ of fieri facias, the appellee has been satisfied the amount of his judgment against Lamar. He contended that taking Lamar into custody on the ca. sa., and his discharge by the appellee, was a full, absolute and complete discharge and satisfaction of the judgment, and cited 4 Burow, 2482; 1 T. R., 557, 715. 6 ib., 525. Coxe’s Dig., 582. 5 Johns., 364. 1 Dane’s Ab., 591. 5 Com. Dig., 762. Toller’s Exrs., 151. 2 East, 243.
    The court ought to have permitted the defendant to read the fee-bill to the jury to show what disposition was made of the horse belonging to Lamar, and which was a principal article of property in his hands, in respect to which the defendant was charged. No time is expressly limited for the return of fee-bills put into the sheriff’s hands for collection. Rev. Laws of 1827, pages 107, 207, 218; nor is any time specified in the fee bill within which it shall be returned. The law, it is true, declares that such fee-bill shall have the force and effect of an execution, and that the sheriff shall levy the same on the goods and chattels, <fcc., and proceed thereon in all things as on a writ of fieri facias. If it is admitted that the provisions of the statute give the party in whose favor the fee-bill issues, the right to. call upon the sheriff to return it after ninety days, it does not follow that the sheriff can not act, and even make a levy by virtue of it after that time. Admitting that the fee-bill was functus officio after ninety days, still the court should have permitted the defendant to read it in evidence, because it was not competent for any person but the person against whom it was issued to make objection. If the fee-bill was put into the hands of the sheriff before the plaintiff’s execution, it was entitled to a preference over the execution in being first satisfied out of Lamar’s goods, as it became a lien upon his property from the time of its delivery to the sheriff. Rev. Laws, 1829, p. 86. And further, the defendant might have shown a levy upon the horse under the plaintiff’s execution, or any other put into his hands after the fee-bill and before its return. And if this identical horse was levied upon by the plaintiff’s execution put into his hands after the fee-bill, it was the duty of the sheriff on selling it, to apply the money arising from the sale, in payment of the fee-bill ; by prior delivery it was entitled to the preference. He further contended that the declaration was bad, as it did not claim any sum in damages.

      Grant, contra,
    contended that the demurrer to the two special pleas was correctly sustained, because the first plea was an insufficient answer to the declaration. A sheriff is bound, and presumed to know all the property subject to execution belonging to a defendant, or at least, to use reasonable diligence to ascertain it, and the plea excuses him on the ground that he levied upon and sold all of which he was notified, without showing any such diligence.
    The second special plea is likewise insufficient, because the liability of Hargrave had been incurred before the issuance of the ca. sa. under which Lamar was taken into custody and discharged, and which is set up as the defense. The plaintiff’s effort to obtain his debt from Lamar is no waiver of his remedy against the sheriff for the delay occasioned by his negligence in the discharge of his duty.
    The exclusion of the fee-bill was correct, because as the fee-bill is to be proceeded on in all respects as a fi. fa., and as a fi. fa. could not be levied after its return day, the levy under the fee-bill was illegal and void, and any person interested may make the objection, especially the appellee in this case.
    The omission of the amount of damages in the declaration could he taken advantage of on special demurrer only.

      Breese, in reply.
   Smith, J.,

delivered the opinion of the court. The appellant relies on the following points for a reversal of the judgment of the court below.

First. The error as alleged in sustaining the demurrer to the second and third pleas of the defendant in the court below.

Second. The variance between the execution given in evidence on the trial, and the one described in the declaration, and suffering the same to be amended, and given in evidence to the jury.

Third. That the fee-bill offered in evidence ought not to have been rejected.

Fourth. The omission of damages in the conclusion of the declaration of the plaintiff.

There is little difficulty in deciding on the questions arising under the demurrer. An essential ingredient is wanting in the first plea, to constitute it a good one. In no part of it does the defendant aver that he used any exertion or diligence to ascertain what chattels or estate the defendant in the execution had, nor whether he made the least inquiry in relation thereto. We can not doubt that it is the duty of an officer to whom an execution is directed and delivered, to make at least reasonable exertions to levy the same on the property and estate of the debtor, and that if he is guilty of gross negligence in this, he is liable. The mere want of knowledge of the debtor’s having estate or effects, or an averment that the plaintiff did not point out the estate or effects of the debtor to him, on which to levy, is not sufficient to excuse him. The demurrer was therefore properly sustained. Equally correct was the sustaining of the demurrer to the second plea.

The liability of the sheriff for his negligence had attached before the issuing of the capias ad satisfaciendum, and whether the voluntary discharge of the defendant therefrom operated as a satisfaction of the creditor’s judgment or not, it could not take away the creditor’s remedy against the sheriff for his negligence, which was perfect before such discharge. The right of action of the creditor against the sheriff for his misconduct was in no way affected by such discharge. The plea was then a defective defense, and wholly immaterial.

The second point of variance is not, in our judgment, tenable. The court had the right to suffer the amendment to be made, it being a mere clerical error, and the variance was, even without such amendment, unimportant; because the description of the judgment record set out in the declaration was only as inducement to, and not the gist of the action. Numerous authorities may be found of adjudged cases, supporting this doctrine.

On the third point, relative to fee-bills, the same rules are to govern as in cases of execution. They are declared by the statute creating them, to have the force and effect of an execution, and are to be returned in the same manner. The ninety days having expired before the levy under the fee-bill, it was, necessarily, functus officio, and, consequently, the levy void. It was then properly rejected.

The objection under the last point ought to have been taken advantage of, in the court below. It is merely .and purely k technical, and even then, it might be questioned whether the damages in the recital to the declaration, as appears in the record, has not cured the error, if it were one available in the court below. The judgment of the circuit court is affirmed with costs.

Judgment affirmed.

       It is the duty of an officer having an execution in his hands against the property of a defendant, to make reasonable exertions to levy upon the property of the defendant in his county; and if he fails to use due diligence in the discharge of his duty in this respect, he is responsible for whatever loss or detriment the person who commits the execution to his hands may sustain, in consequence of such failure. Dunlap v. Berry, 4 Scam., 327.
      In this case the circuit court instructed the jury, that if they believed the defendant in the execution had property in the county sufficient to pay the execution, or part thereof, and if the sheriff, by reasonable diligence and exertion, could have made the amount of the execution, or part thereof, they should find for the plaintiff. Held, that the instruction was correct. Id., 331.
      A sheriff is not bound to notice bare assertions of individuals, as to their claim to property in the possession of a defendant in an execution; he is only required to notice legal claims, fairly exhibited. Ibid.

       A fee-bill is “ process,” and governed by the same rules as executions. Redick v. Cloud’s Adm’r, 2 Gilm., 678. Ferris v. Crow, 5 Gilm., 96. Newkirk v. Chapron, 17 Ill., 344.
      If an officer neglects to return a fee-bill within ninety days from its date, he becomes liable to pay it. The People v. Roper, 4 Scam., 560.

       Where the plaintiff showed, in the body of his declaration, a claim for damages greater than the verdict, but had omitted the ad damnum, at the end of the declaration, it was held to be cured by the verdict. Burst v. Wayne, 13 Ill. 599. Mattingly v. Darwin, 23 Ill., 618.


author: Per Curiam.

text:
    Chauncey Beebe, Appellant, v. John Boyer, Appellee.
    APPEAL FROM GREENE.
    Appeal dismissed if copy of the record is not filed at the time required by law.

      Hall, for appellee,
    on the 8th day of December, being the 4th day of the term, filed the transcript of the record in this cause, and moved the court to dismiss this appeal, for the reason that the appellant had failed to file a copy of the record at the time required by law and the rules of this court, and cited the 12th Rale, and the 33d section of the Practice act, Rev. Laws of 1827, p. 319.
   Per Curiam.

Let the appeal be dismissed at the costs of the appellant.

Appeal dismissed.


text:
    William Rager, Appellant, v. William Tilford, Appellee.
    APPEAL FROM SANGAMO.
    A correct construction of the 33d section of the Practice act, requires that a party must make application for further time to file the transcript of the record, in cases of appeal, within the three days within which the transcript should be filed.

      W. Thomas, for the appellee,
    on the seventh day of the term presented to the court a transcript of the record • and proceedings of the court below, and stated to the court that the transcript had been received by the clerk of the court by mail, on Saturday, the 6th day of the term ; that it was not known whether the transcript had been made for the appellant or appellee, and thereupon moved the court to dismiss the appeal, for the reason that the appellant had failed to file a transcript of the record within the time required by law, and cited in support of his motion the 33d section of the Practice act, Rev. Laws of 1827, p. 319, and the 12th Rule of this court.

      M’Roberts, contra, for appellant,
    made a cross-motion for leave to file the transcript presented to the court, as the transcript of the record, and stated that it was owing to the delay of the mail that it was not received here earlier.
   Per Curiam.

The court is of opinion that this appeal be dismissed. A correct construction of the 33d section of the Practice act, would require that a party must make application for further time to file the transcript, within the three days, within which the record should be filed. The words of the act are imperative; they are, “ unless the party shall have obtained further time.” As the appellant did not obtain further time, within the three days, his motion to file the transcript now is overruled.

Appeal dismissed.