text:
    John L. Clarke, James Hutchinson, Sarah F. Clarke, Mary T. Sommerville, Henry J. Kuntz, and the unknown heirs of John Vyvian Sommerville, appellants, vs. Peter Lott and Joseph Arters, appellees.

      •Appeal from Madison.

    The only divorce authorized by our statute, is a vinculo matrimonii. It is granted, as well for causes arising after, as for those existing before the marriage.
    The effect of a divorce under our statute, upon the rights of the wife, where it is granted for her fault or misconduct, is the destruction of jointure, loss of dower and all rights secured by marriage settlements.
    The legitimacy of the issue is not affected by a divorce, unless the marriage is declared void, on the ground of pre-contract.
    A decree of divorce is conclusive evidence of the existence of the cause for which it was granted, in all collateral actions.
    A voluntary trust will not be enforced in a Court of Equity.
    On the second day of December, A. D. 1847, Peter Lott and Joseph Arters filed their bill in chancery, in the Madison Circuit Court, complaining that, on or about the 17th day of April, A. D. 1841, Fitzroy Sommerville, or, as he sometimes styled himself, John Vyvian Fitzroy Sommerville, and one Mary Turn-hull Milburn, contemplated intermarriage; that said Sommerville, in order to induce Mary to marry him, represented himself as a person of wealth, and also as the sole surviving child and heir'of one Admiral Sir John Fitzroy Sommerville, and that he would, by virtue of the will of Sir John, upon the death of his mother, he entitled to all the real and personal property of which Sir John died possessed; and that said property consisted of certain sums of money in the three per cent, consolidated hank annuities of the Bank of England, to be found described upon the hooks of that institution; also, certain sums of money in the capital stock of the Governor and Company of the Merchants of Great Britain, trading, &c., commonly called South Sea Stock; also, a variety of turnpike bonds for £100 each, secured upon the turnpike leading from St. Albans, through Dunstable, in Hertfordshire, England; that said Fitzroy represented himself as the owner in possession of a plantation of seventy-three acres of tea ground in the province of Assam, Bombay, in the East Indies; and also of a tract of two hundred acres near Collins-ville, Madison county, Illinois.
    The hill further sets forth, that, in consideration of the agreement of the said Mary to marry him, said Fitzroy made and entered into an agreement between himself, herself, and the complainants, whereby said Fitzroy and Mary agreed, in consideration of the premises, to assign and transfer unto the complainants and a person called John Pewtriss, within six moths from the death of the mother of said Fitzroy, all their interest in said bank stock, annuities, turnpike bonds, and South Sea stock; and also, within sixty days from the date of the agreement, (which was dated April 17, 1841,) to convey to the complainants and said Pewtriss the said lands in Assam and Illinois ; which property and lands were to be held by the complainants in trust, as follows : That said Fitzroy, or assigns, during his natural life, was to have &c., to his own use &c., all the dividends &c., accruing or arising from said lands or stocks; and in case of the death of said Fitzroy, leaving said Mary, the trustees were to permit and suffer her and her assigns, during her natural life, to take and receive said dividends, profits, rents, &c.; and in case of her subsequent marriage, said dividends, profits, &c., not to be subject to the control of her husband, but to remain for her exclusive use ; and after the death of said Fitzroy and Mary, if leaving children from said marriage, then said trustees to assign &c., and dispose of the property amongst the said children, share and share alike, at such time and in such manner as said Fitzroy should by will direct; in case of the death of said Fitzroy and Mary, without children from said marriage, then said trustees to convey said property to Rebecca Bartlett, the betrothed wife of Charles Milburn of Quincy, during her natural life ; and in case of issue from said marriage of said Rebecca and Charles, after the death of said Rebecca, said property to be conveyed by the trustees to said issue; and in case of no issue from said last named marriage, then said property to be conveyed by said trustees to Charles Milburn, during his natural life, if he survived said Rebecca; and after the death of said Charles, under the circumstances set forth, then said property to be distributed according to the English law of descents, among the heirs and legal successors of said Fitzroy, in England. Said agreement, which was substantially set forth, was made part of the bill, and purported to have been signed by said Fitzroy Sommerville, Mary Turnbull Milburn, Joseph Arters, and Peter Lott.
    The bill further sets forth, that complainants executed the agreement in good faith, &c.; and that April 22,1841, said Fitzroy and said Mary intermarried as contemplated ; and the same day said Charles Milburn and Rebecca Bartlett intermarried.
    The complainants allege there never was any such person as the said Admiral Sir John Eitzroy Sommerville, or Anna Sommerville, as represented by said Eitzroy, nor had said Fitzroy descending to him anjr bank stock, turnpike stock, or South Sea stock, as represented by him as aforesaid; and that the whole transaction was designed to impose upon Mary, and to induce her to consent to said marriage;' and that all of said statements of said Fitzroy were a fabrication, except as to the one hundred and sixty acres of land near Collinsville, Madison county, Illinois, which property is described as the south-east quarter of section twenty-one, in town three north, range eight, west of the third principal meridian, and was owned by said Fitzroy, and is the identical land mentioned by said Fitzroy as the two hundred acres near Collinsville. The bill further alleges that there was no such person in existence as James Pewtriss, or if there ever was, he died long since, and Fitzroy knew the same.
    The bill further alleges, that the marriage of said Fitzroy and Mary was extremely unfortunate; and that, owing to thediscocovery of the imposition upon her, and the intolerably, bad temper of said Fitzroy, said Mary, shortly after the marriage, was compelled to leave him, and return to her brother’s house, where she has since remained. The complainants allege that the transfers, &c., have never been made, as stipulated in the agreement; that the said Mary is ready and willing to make a transfer of the lands near Collinsville, as agreed, but that said Fitzrojr, in his life-time, refused to unite with her in so doing, or to comply with the terms of said agreement, which was one of the reasons of her refusal to live with him; that said Fitzroy died on or about August 28, 1847, after having made a pretended will, by which he devised all his real estate, embracing the land near Collinsville, to James Hutchinson and John L. Clarke, and their survivor, in trust for one Sarah Fitzroy Clarke, a minor, styled in said will his god-daughter; that said agreement was recorded in Madison county, June 22, 1841, long before the will, which bears date June 15, 1844; that said Hutchinson, John L. Clarke, and Sarah F. Clarke, had full notice of the agreement &c.; that said Sommerville styled himself in the will John Yyvian Fitzroy Sommerville, and is the same who made the agreement, and married said Mary; that said Hutchinson and John L. Clarke are in possession of the land near Collinsville, under said will; that said will was never duly signed and executed as required by law, and if ever made by said Fitzroy, was defectively executed; that there never was any issue from the marriage of said Fitzroy and said Mary; that said Rebecca, who intermarried as aforesaid, deceased about October 16,1842, leaving a son named Charles Milburn; that said Mary and the said child have a right to the execution of transfers &c., to the complainants, which complainants are entitled to enforce; that one Henry J. Kuntz claims title to the land. The bill then contains a prayer for relief &c., and waives answer under oath. Annexed to the bill is a copy of the will of said Fitzroy, deceased, and the affidavit of Charles Milburn, of search after the heirs of said Fitzroy, which proved futile. A subpoena was issued upon the above bill, and served upon John L. Clarke, Sarah F. Clarke, and James Hutchinson and Henry J. Kuntz ; and the unknown heirs of said Fitzroy were brought into Court by publication.
    At the March term, 1848, John L. Clarke filed his answer, stating he was ignorant of the execution of the agreement set forth by complainants, though he admitted its being recorded as stated, and insisted upon proof of its genuineness, execution and delivery; that he knew nothing of the representations alleged to have been made by said Fitzroy, or the identity of the person making such representations and said Fitzroy; admits that John Yyvian Fitzroy Sommerville married Mary Turnbull Sommerville early in 1841, and that he has heard her maiden name was Milburn; insists that if the persons named in complainants’ bill, and those known by him, were the same, and if the agreement is genuine, the consideration of said agreement was not merely the submission to the marriage ceremony, and the assumption of the marriage vows, by said Mary, but also the agreeing to keep and the actual keeping of said vows, by said Mary; knows nothing of the marriage of Charles Milburn and Rebecca Bartlett, or of the death of William, or that a child was left, or whether there ever were such persons as Admiral Sir John Fitzroy Sommerville, or Anna Maria Sommerville, or James Pewtriss, but asks proof of the death of said Pewtriss; does not know that said John Y. F. Sommerville was ever called upon to make a conveyance as averred, and denies the said allegation; admits the said John Y. F. Sommerville owned the one hundred and sixty acres of land described as the south-east quarter of section twenty-one, town three north, range eight, west of third principal meridian.
    Said answer further states, that a few weeks after the marriage of said John V. F. and said Mary, said Mary broke her marriage vows, and wilfully deserted her said husband, and absented herself for more than two years, without any reasonable cause; and that October 2, 1843, said John V. F. Sommerville filed his petition for a divorce from said Mary, in the Madison county Circuit Court of the state of Illinois, praying for a divorce, upon the ground said Mary had wilfully deserted and absented herself from said Sommerville, without reasonable cause; in which said bill said Sommerville averred he had always conducted himself towards said Mary as a kind and affectionate husband; that upon the filing of such bill, a subpoena was duly issued, returnable &c., and personal service thereof was duly made upon said Mary; that subsequently, at the May term, 1844, of said Court, said application for divorce came up for trial, but said Mary did not appear; and upon such trial a decree was granted and made, by which the Court ordered, decreed and adjudged, that the bonds of matrimony between said John V. F. Sommerville and said Mary T., should be dissolved, and forever held for naught; avers the identity of the persons divorced with those named in complainants’ bill as Mary T. Sommerville and John Vyvian Fitzroy Sommerville.
    The answer further insists, that by said divorce said Mary T. forfeited all claim to dower in the estate of her husband, as also all claim to the enforcement of any agreement for jointure, arising from said marriage, as also all claim to the benefit of the agreement set forth by complainants.
    The answer further, shows, that said John Y. F. died August 28, 1847, leaving a will, a copy of which is annexed to complainants’ bill, by which said John L. Clarke and James Hutchinson were appointed executors, and by which all the real estate of said John Y. F., embracing the one hundred and sixty acres within named as near Collinsville, were devised as stated by complainants; that said will was duly executed according to law, and after the decease of the said John Y. F., upon the first day of October, 1847, was duly probated and allowed, and recorded by and before the probate justice of the peace of said Madison county, and the same day letters executory were duly granted said respondent, said Hutchinson declining to act, and the respondent duly qualified himself, &c. A copy of the letters executory is annexed to the answer.
    The answer further denies said Mary was forced to leave her husband’s house, and insists she is estopped by said decree of divorce from denying that said divorce was on account of a breach of her marriage rows, as stated in the petition then filed. Respondent knows of no real estate which was of said John Y. F., other than the land near Collinsville.
    On the 28th day of August, 1848, Sarah F. Clarke, minor, by her guardian ad litem., E. Keating, filed her answer, in substance the same as the answer of John L. Clarke, insisting upon strict proof of the allegations of which she is ignorant; and further insisting, that not only said Mary, but all other persons claiming through the agreement set forth by complainants, forfeited their claims by said divorce; and that the trusts sought to be established were thereby destroyed, and all interest of the complainants divested, and the rights and interest of John Y. F. Sommerville restored.
    The answer, in addition, says that said agreement was made without any consideration between said John Y. F. and Charles Milburn, or any' other person than said Mary'; and that said consideration had wholly failed, as within stated; also denies that said Mary was compelled, by bad treatment, or from the temper of said John V. F., or from any other cause on his part, to leave her husband, but insists that he conducted himself as a good, kind and affectionate husband, towards said Mary; also denies all fraud on the part of said John Y. F. in obtaining said marriage, but insists that said Mary, before said marriage, came to Madison county, and spent several days in examining said John V. F.’s property; and so far from fraud on the part of said John Y. F. towards said Mary, it was rather a matrimonial speculation on her part.
    On the 31st of August, 1848, the complainants filed their exceptions to the answers of the respondents; objecting—
    1. To the sufficiency of the facts set forth in the answers.
    2. That the rights of the other persons in the agreement could not be affected by the acts of said Mary.

      3. That said John Y. F., being guilty of fraud previous to the marriage, the respondents, under the circumstances, could not avail themselves of the divorce.
    4. That the consideration of the agreement, i. e. marriage, was superior to that in favor of devisee.
    5. That complainants, having an equitable estate prior to the devisee, and being trustees for persons other than said Mary, cannot be affected by her acts, or by the acts of the said John Y. F.
    6. That the answers present no defence.
    The exceptions were heard, and pro forma overruled; and the complainants then filed their replication.
    On the 20th March, 1849, an agreement was made between the parties to the suit, by which the identity of the parties divorced, and the Fitzroy Sommerville and Mary T. Milburn, named in complainants5 bill, was admitted ; also, that the divorce was granted as stated in the answers ; also, that the facts set forth in the bill, which were not denied in the answers, and the facts-set forth in the answers, were true. These admissions were not, however, to conclude the parties, except in the Supreme Court; and their object was stated to be to obtain a decision of the Supreme Court upon the effect of the divorce upon the marriage agreement or covenant set forth in the bill; and all the facts necessary to bring that question before the Court are admitted to be established.
    At the August term, 1849, a rule was entered upon the defendants Hutchinson, Mary T. Sommerville, and Henry J. Kuntz, to plead by 12 o’clock; and subsequently, the Court to whom the other defendants and the complainants had submitted their cause at the March term, Underwood, Judge, presiding, rendered a final decree in favor of the complainants, setting aside the will of said John V. F., deceased, as to complainants, and directing said Hutchinson, John L. and Sarah F. Clarke, to join in a conveyance of said one hundred and sixty acres to the complainants ; and upon their failure, the said conveyance to be made by the master in chancery; the same to be held and proceeded in by the complainants, in the fulfilment of the trusts set forth in the marriage articles; and that complainants pay costs out of the profits of the land. And, upon the 23d day of August, 1849, the parties made the following further agreement: ££ It is further stipulated that this suit shall go by appeal to (1st district, at Springfield,) the Supreme Court, without any appeal bond being filed.”
    Errors assigned : That decree should have been for respondents in the Court below. Second, the Court below decided that the divorce set up by appellants was no bar to the aid and relief sought for in complainants’ bill.
    E. Keating, for appellants :
    1. Marriage is not merely a civil institution, but a contract of the most high and important character; the parties to which possess rights, and are liable to disabilities, corresponding to the observance or breach of the duties belonging thereto. 2. A jointure is a bargain and contract of livelihood, adjoined to the contract of marriage, being a competent provision of freehold, lands, &c., for the wife, to take effect after the death of the husband, if she herself is not the cause of the determination or forfeiture of it. 2 Tomlin’s Law Die., 27, title, “Jointure;” 1 Institutes, 86; 3 Bacon’s Ab., 710; Jacob’s Law Die., title, “Jointure;” 1 Cruise, 199. 3. Elopement by a wife, without subsequent reconciliation, bars dower. 3 Comyn’s Dig., 490; 2 Bacon’s Ab., 384; Clancy on the Rights of Married Women, 201. 4. Adultery is a bar. Hethington vs. Graham, 19 Com. Law Rep., 31. 5. A Court of Equity will not assist a wife to recover property settled to her separate use, where she elopes. 3 Comyn’s Dig., 502; Hill on Trustees, 411; Carr vs. Estabrook, 4 Ves., 148; Bullock vs. Menzies, 4 Ves., 798; Moor vs. Moor, 1 Atkyns, 277; Watkins vs. Watkins, 2 Atkyns, 96. Clancy on Rights of Married Women, 380, 568. 6. Marriages are dissolved by divorce a vinculo matrimonii, and such divorce renders the marriage void ab initio. Clancy on the Rights of Married Women, 201; 2 Bacon’s Ab., 370; Reeve’s Dom. Relations, 55; 1 Cruise, 165; Bays et ux. vs. Gillespie, 2 J. R., 117. 7. Dower is an incident of marriage, and is barred by a divorce, a vinculo. 3 Comyn’s Dig., 490, title, “Dower;” 1 Cruise, 165; Clancy on the Rights of Married Women, 197; 2 Bacon’s Ab., 370, title, “Dower;” Coke Lit., 33, b.; 1 Rob., 681; 1 Hilliard’s Ab., 60, 61. 8. Marriage articles and agreements are barred by a divorce, a vinculo. 2 Kent, 100, note; Chanand vs. Chanand, 1 N. Y. Leg. Observer, 134. 9. The articles of agreement pass no legal title, but require the aid of a Court of Equity, to enforce them. This will be refused. First, on account of the misconduct of the wife. See former authorities above cited. Second, by the divorce there is a failure of consideration, and the wife stands here as a volunteer, and as such, aid must be refused. Hill on Trustees, 83, 127; 2 Sugden on Vend., 169; 1 Madd. Ch., 414; Ellison vs. Ellison, 6 Ves., 662; Webb vs. A. M. and F. Ins. Co., 5 Gilman, 223. Third, complainants are mere volunteers. See authorities above cited; 1 Hilliard’s Ab., 202. 10. The complainants are not proper parties complaining, and the wife is improperly made defendant. 11. A complainant should not delay seeking aid. Hill on Trustees, 168.
    J. Gillespie, for appellees :
    1. Marriage is a consideration of the highest character in law. 7 Peters, 393; 2 Kent, 172, note c.; 4 Dallas, 306. 2. The statute of Illinois of 1833, only bars dower. See R. L. Ill. 1833, page 238. 3. As to whether, under the provisions of said section, any other misconduct will bar dower than adultery. See sec. 12, R. L. Ill. 1833, page 238; 3 Peere Williams’ Rep., 276. 4. The divorce in this case was not a divorce a vinculo, as defined by the English law. See 1 Black. Com., 440. 5. Adultery, either before or after agreement made in consideration of marriage as a jointure, will not bar the jointure. 1 Ball & Beaty, 204; 13 Vesey, 442; 3 P. Williams, 276; 4 Kent, 55; 4 Bos. & Pul., 121; 1 Cruise’s Digest, 219, sec. 3, 4, 5 and 6. 6. Articles entered into before marriage, in consideration of marriage, vesting certain land, &e., upon the wife, will be enforced in equity, even if the wife be guilty of adultery. 1 Atkyns, 272; 4 Vesey, 146, 798. 7. In New York, jointure is forfeited, on account of adultery, by statute. 4 Kent, 55, note c.
   Opinion by Treat, C. J.:

The object of this bill is to enforce the specific execution of an agreement made in consideration of a marriage that was subsequently solemnized. It is contended that the decree for a divorce, obtained by the husband on account of the misconduct of the wife, extinguished all right on her part to insist on the performance of the agreement.

By the English law, divorces a vinculo matrimonii were only, granted for causes existing prior to the marriage—such as precontract, consanguinity, affinity,, and corporeal infirmity. The sentence of divorce pronounced the marriage void, as havings been unlawful ab initio. It avoided the marriage from the. beginning, and remitted the-parties to their original rights.

Divorces a mensa et fhoro were granted for causes arising after the marriage. The effects of such a. divorce were very different. The sentence did not dissolve the marriage, but only-provided for'the separation of the parties. The marriage, relation, and most of the rights and- duties growing out of it, still continued. The obligation of the husband to support the wife,, and his marital rights to her property, still subsisted. The. rights of the wife to dower and a marriage settlement were unimpaired.

The only divorce authorized by our statute is a vinculo matrimonii. It is granted as well for causes arising after as for-those existing before the marriage.. The consequences are,, however, much modified by the statute. The legitimacy of the. issue is not affected, except where the marriage is declared void, on the ground of a prior marriage. The wife does not lose her dower, nor the benefit of a jointure,, unless, the divorce is granted for her fault or misconduct. The Court granting the divorce-may allow her alimony. The decree does not avoid the marriage ab initio, except in the case of pre-contract, but only annuls it from the time the decree is pronounced. But, subject to these qualifications, the divorce is absolute. The marriage is dissolved, and all rights and obligations dependent on the existence of the marriage relation, are extinguished. The parties are no longer husband and wife, but are permitted to marry at pleasure. The husband is released from all obligation to maintain the wife, and his right to her separate property is at an and. The rights of the wife to his estate, and to receive a support from it, further than they are saved by the statute, or allowed by the Court in the way of alimony, are determined. It follows that this suit cannot be maintained. The sole object of the agreement, so far as the wife was concerned, was to provide her a support as the widow of Sommerville. Before any estate was vested in the trustees, the marriage was dissolved, for her misconduct, and she ceased to be his wife. He was no longer legally or morally bound to support her, or to carry into effect any provision previously intended for that purpose. His duty to support her was extinguished by the dissolution of the marriage, and with it fell her right to demand the execution of the trust. It is only in the capacity of wife, or widow, that she can compel the performance of the agreement. This must be the basis of her right to relief. She stands in neither relation. Ceasing to be the wife of Sommerville when living, she could not become his widow by surviving him.

If the estate had been conveyed to the trustees, in pursuance of the agreement, it is possible that her right to receive the income, would not be lost by the divorce; but upon this question we express no opinion. If there had been children of the marriage, it is probable that the agreement might be enforced for their benefit. But it would be done for the sate of the children, and not on account of the mother.

The statements in the bill, respecting the conduct of Sommerville, cannot be considered. It cannot now be insisted that he was not entitled to the divorce. The decree must be held Conclusive of the matter in this collateral proceeding.

Nor can the suit be maintained for the benefit of the heir of Charles and Rebecca Milburn, to whom the estate was to go, in default of issue of the marriage. Neither the parents, nor the 'child, participated in the consideration on which the agreement was founded. It was a voluntary trust as to them. The principle is well settled, that a Court of Equity will not lend its aid to establish a trust at the instance of mere volunteers. If the transaction, on which a voluntary trust is attempted to be established, is still executory or incomplete, the Court will decline all interference in the matter.

The decree of the Circuit Courtmust be reversed, with costs, and the bill dismissed.

Decree reversed.


source: Caselaw Access Project

author: Opinion by Mr. Justice Trumbull :

license: Public Domain

text:
    Michael O’Conner and Richard Boyd, plaintiffs in error, vs. John Mullen, defendant in error.

      Error to Sangamon.

    Action against two defendants, service upon one only, default was entered against the <( defendants ; " a judgment that the plaintiff recover of and from the u defendant/’ held bad for uncertainty.
    In an action upon a bail bond, where the defendant makes default, the clerk does not assess the debt. The default admits the debt, which is the penalty of the bond. The assessment is of the damages, occasioned by the breach of the condition, which will bo the amount of the recovery in the suit in which the bond was given.
    An amendment of a judgment, at a term subsequent to that in which it was rendered, without notice to the opposite party, will not avail the party making the amendment.
    This was an action upon a hail bond, returned into the Sangamon county Circuit Court, at November term, 1848. The return of the summons showed service upon Boyd, and that O’Conner was not found. During the same term the following order and judgment was entered: “This day came the plaintiff, by his attorney, and it appearing to the satisfaction of the Court that the defendants has been regularly served with process, and he being three times solemnly called, came not,” &c., “ it is ordered by the Court that the plaintiff recover of and from the said defendants the debt in the plaintiff’s declaration mentioned. But because the debt is unknown to the Court it is ordered that the clerk make an assessment, and he having assessed the same to the sum of two hundred dollars,” &c., “ it is, therefore, ordered and adjudged by the Court, that the plaintiff recover of and from the defendant the sum of two hundred dollars, the debt aforesaid,” &c. This judgment was before Treat,, Judge.
    At the August term, 1849, of the said Sangamon Circuit Court, before Davis, Judge, on motion of the plaintiff, the judgment was amended so as to make it a judgment against Richard Boyd only; and, also, so as to show that it was referred to the clerk to assess the damages, and that he reported that the damages amounted to two hundred dollars; and also to make it a judgment for two hundred dollars debt, &c., he discharged by the payment of two hundred dollars in damages.
    Boyd sues out the writ of error, and assigns for error : That the declaration is insufficient, not showing any cause of action } that the judgment is erroneous, being rendered for the whole debt without any assessment of damages} that the judgment was against both defendants, one only having been served; that the court below had no power to make an amendment of the record, without notifying defendants; and that the clerk had no power to assess the damages.
    E. N. Powell, for plaintiffs in error:
    The objections to the declaration are, that it does not show that the ca. sa. rightfully issued; it not appearing that any affidavit was made, that defendant, O’Conner, refused to surrender &c. Rev. Stat., 282, sec. 1. It does not appear that O’Conner was lawfully held to bail in the original action; there being nothing to show that he refused to deliver up his estate for the benefit of his creditors, or that there was a strong presumption of fraud. Old Const., sec. 15, art. 8; Rev. Stat., pa. 38. The bond was given to release from an unlawful custody, and was void. The declaration shows that the original judgment against O’Conner was in damages, but the declaration alleges also that the suit was in debt. There is no sufficient averment to give the Court jurisdiction. The return shows service of the summons on Boyd only. The language of the judgment is loose, but it clearly makes a judgment against both defendants. The judgment being against both defendants, only one of whom was properly in Court, the whole judgment must be reversed, and cannot be affirmed as to one and reversed as to the other. Hays’ Adm’rs vs. Thomas etal., Breese, 137; 14 John. R., 417. Notice not having been given to defendant in the Court below, of the amendment sought to be made to the judgment, that amendment goes for nothing. The clerk had not authority to make the assessment.
    S. T. Logan, for defendant in error:
    The clerk is authorized to make the assessment. Practice act, Rev. Stat., sec. 15, page 415. The condition of the bail bond is, that the security will pay the judgment, if he does not surrender his principal. The only assessment to be made was, for the clerk to compute the amount due on the judgment. The amendment of the judgment was properly made. Notice to the defendant would have been useless : he could not do any thing in Court by producing evidence. The correction was of a mere clerical mistake, apparent upon the record, and to be corrected by it. The defendant was not in any wise injured; the amendment was only necessary for the perspicuity of legal proceedings.
    E. N. Powell, in reply:
    The bond in question was not for the payment of money only. The clerk had to resort to other evidence than the bond, from which to make up his assessment. This case does not come within the purview of the fifteenth section of the practice act.
   Opinion by Mr. Justice Trumbull :

This was an action of debt upon a bail bond. Boyd alone was served with process." Judgment by default was entered against the ££ defendants,” for the debt, in the declaration mentioned, and the record then recites that, ££ because the debt is unknown to the Court, it is ordered that the clerk make an assessment,” which he did, and reported the same to be two hundred dollars ; whereupon the Court adjudged, ££ that the plaintiff recover of and from the defendant the sum of two hundred dollars aforesaid, together with his costs.”

This judgment was clearly erroneous. It was error to enter a judgment by default against both defendants, when only one had been served with process ; and the final judgment, although against but one defendant, leaves it uncertain which.

It was also erroneous to direct the clerk to assess the debt. The default admitted the debt, which was the penalty of the bond, and an assessment should have been directed of the damages, occasioned by the breach of the condition of the bond, which would be the amount of the recovery in the suit, wherein the bail bond was given.

This judgment, which was rendered at the November term, 1848, of the Sangamon Circuit Court, wras amended at the August term, 1849, of the same Court, so as to be a judgment against Boyd alone, and was also made formally correct; but the amendment was made on motion of the plaintiff below, without notice to the opposite party, and cannot, therefore, avail him, upon the authority of the case of O’Conner vs. Mullen, decided at the present term.

The judgment of the Circuit Court is reversed and the cause remanded. Judgment reversed.


author: Opinion by Mr. Justice Trumbull:

text:
    Jeremiah Smith, who sues for the use of Warburton & Rosseter, plaintiffs in error, vs. Major Robinson.

      Error to Hancock.

    Section 1, chap. 26, Revised Stat., requires the Court to dismiss a. suit on motion, whenever the plaintiff, or in case the suit is brought in the name of one for the use of another, whenever that other is a non-resident of the state, and fails to file security for costs.
    Security for costs must he given in all cases, where the real plaintiff is a non-resident; and in all cases where the persomfor whose use a suit is commenced, is a non-resident.
    This was a suit originally commenced by the plaintiffs in error against the defendant in error, before a justice of the peace, in Hancock county. The plaintiffs recovered a judgment, and the defendant took an. appeal to the Circuit Court.
    At the September term, 1849, of the Hancock Circuit Court,, the defendant, upon affidavit filed, moved to dismiss the appeal, on the ground that the plaintiffs for whose use the suit is brought, are non-residents of the state, and that they had not filed a bond for costs. Minshall, Judge, sustained the motion to dismiss, and the plaintiffs brought the case to this Court by writ of error.
    In this case, a similar motion to dismiss, grounded upon similar affidavit, was entered; which was allowed by the Court.
    G. Edwards, jr., for the motion, cited 3d Gilman, Buckmaster, use of Denham us. Beames p.. —; 1 S'cammon, 192; Revised Stat., p. 126, section 1.
    R. S. Blackwell, contra, cited 1 Scammon, S81; 3d Gilman, p. 1; Revised Stat., p. 128, section 16.
   Opinion by Mr. Justice Trumbull:

The defendant moves to dismiss this writ of error, for the reason as shown by affidavit, that Warburton & Rosseter, for whose use it is prosecuted, are not residents of the state, and because no security for costs has been filed.

Section 1, ch. 26, R. S., declares, that “in all cases in law or equity, where the plaintiff, or person for whose use the action is to he commenced, shall not he a resident of this state, the plaintiff, or person for whose use the action is to be commenced, shall, before he institutes such suit, file, or cause to he filed, with the Clerk of the Circuit or Supreme Court in which the action is to be commenced,” security for costs; and the second section of the same chapter declares, that “ if any such action shall be commenced without filing such instrument of writing, the Court, on motion, shall dismiss the same.”

These provisions of the statute are plain and positive, requiring the Court to dismiss a suit on motion, whenever the plaintiff—or in case the suit is brought in the name of one for the use of another—whenever that other is a non-resident of the state, and fails to file security for costs.

The Court has no discretion in the matter, and there is no room for construction, where the terms of a statute are clear and unambiguous. The legislature had an undoubted right to pass the law in question, and it is enough for the Court to know, that thus it is written.

It is, however, insisted, that a different construction has been put upon this statute in the case of Catón vs. Harmon, 1 Scam., 581. That case was unlike this. There the objection was, that the nominal plaintiff—not the person for whose use the suit was brought—was a non-resident. A proper construction of the statute, in connection with the decisions that have been made, requires security for costs in all cases, where the real plaintiff is a non-resident; or in case the suit is instituted by one person for the use of another, where the person for whose use the suit is commenced is a non-resident. The statute does not require a non-resident nominal plaintiff, suing for the use of a resident, to file security for costs, and this is all that is decided by the case :of Catón vs. Harmon, but it does require that the person for whose use the action is to he commenced, should, if a nonresident, file security for costs, “before he institutes suit,” thereby treating the person, for whose use the suit is brought, for this purpose, as the real party instituting it.

This construction reconciles all the decisions that have been made—Seward vs. Wilson, 1 Scam., 192; Ripley vs. Morris, 2 Gil., 381—and gives force and efficacy to the statute, while a different decision would render wholly nugatory one, of its plainest requirements.

The motion to dismiss the writ of error must be allowed.

Motion sustained.


author: Opinion by Treat, C. J.:

text:
    William F. Barrows, plaintiff in error, vs. The People.

      Error to Madison.

    If an applicant for a change of venue swears that information of the facts which were made the basis of the application, came to his knowledge on the day the petition was prepared, and the notice was given that the motion would be made, it is equivalent to stating that he had then received the information for the first time.
    Perjury might be assigned on such an oath, and the guilt of the accused established, by proving that he had a knowledge of the facts, prior to the day on which the petition was verified.
    It is error to deny a change of venue, where the prisoner has shown a clear right to it, and in such a case, all subsequent proceedings of trial and conviction will be set aside, and the cause remanded, and the prisoner placed in statu quo.
    An indictment for larceny was found against Barrows at the March term, 1849, of the Madison Circuit Court. Barrows pleaded not guilty, and entered his motion for a change of venue; having given the prosecuting attorney written notice of his intention to make such motion. Notice of the application was given the day prior to the making of the motion, and the day on which the petition was verified.
    The motion for a change of venue was grounded upon the following petition and affidavit:

    “ Of the August term of the Madison Circuit Court, A. D. 1849.
    “ William F. Barrows would respectfully represent and shew unto your honor, that he verily believes he will not receive a fair and impartial trial in the above entitled cause, on account that the minds of the inhabitants of the county of Madison, Illinois, are prejudiced against him. He further states, that information of the facts came to his knowledge to-day. Wherefore he prays that said trial may be removed to the next county, where the causes above complained of do not exist.
    “William F. Barrows.

    “ William F. Barrows, being duly sworn according to law, deposes and says, that the facts set forth in the above petition are true, in substance and in fact, according to the best of his knowledge and belief. “William F. Barrows.

      t{ Subscribed and sworn to before me, this 22d day of August, A. D. 1849. “W¡u. T. Brown, CP),’c”

    The Court overruled said motion for a change of venue, for the reason that the notice had not been given in time, and because the affiant did not state when the knowledge of the prejudice of the inhabitants of Madison county first came to his knowledge. To this decision defendant excepted, and a bill of exceptions was filed. And on the 24th August a trial was had, before Underwood, Judge, and a jury, and a verdict of guilty was found. Motion for a new trial was entered and overruled. Barrows sues out this writ, and assigns for error the refusal to allow the change of venue.
    J. Gillespie and W. T. Martin, for plaintiff in error:
    The act requiring changes of venue is imperative, and when a party brings himself within its terms, the motion must be granted. Freleigh vs. State, 8th Missouri, 611. The statute of Missouri provides, that reasonable notice of an application for a change of venue must be given to the prosecuting attorney. An application made on the day of trial is in time, if defendant could not have given it sooner. Reed vs. State, 11 Missouri, 379-82-3. Courts have no discretion as to awarding changes of venue in criminal cases, where the applicant can bring himself within the statute. 1 Scam., 120, Clarkes. People. Plea should be filed before change of venue is granted. Gardner vs. People, 3 Scam., 83. In 2d Kent’s Com., pa. 12, note a, it is laid down, that a party will not be tried a second time, where there was a good indictment and a competent jury. In 1 Scam., 120, there were two objections taken to the judgment: First, that the Court below refused a change of venue; second, that the indictment was substantially defective, and the Court discharged the prisoner. This must have been for the reason that the Court below refused to change the venue, for the fact that the indictment was defective would have been a reason for a new trial, according to the authority in Kent, and so it must follow that after the Court has tried a case, where the venue should have been changed, the prisoner must be discharged.
    D. B. Campbell, prosecuting attorney for 8th Circuit:

      This error is not to be distinguished from other errors. The prisoner is not entitled to a discharge. He must stand committed for another trial.
   Opinion by Treat, C. J.:

The Court should have granted the motion for a change of venue. The prisoner swore that information of the facts, which were made the basis of the application, came to his knowledge on the day the petition was prepared, and the notice was given to the state’s attorney that the motion would be made. It is equivalent to a statement that he then received the information for the first time. It negates every inference that the information had been previously acquired. If he had before obtained knowledge of the existence of the facts, the information did not come to his knowledge on that day. We do not entertain a doubt but that perjury might be assigned on the petition, and the guilt of the prisoner established, by proving that he had knowledge of the facts prior to the day on which the petition was verified.

The prisoner having shown a clear right to a change of venue, which the Court denied him, the subsequent proceedings in the case were erroneous, and must be reversed. On the authority-of the case of Baxter vs. The People, 2 Gilman, 578, the cause will be remanded to the Madison Circuit Court, where the prisoner must appear and answer to the indictment; and where he may insist on or withdraw the application for a change of venue, as he shall deem proper. Judgment reversed.


author: Opinion by Mr. Justice Trumbull: Mr. Justice Catón

text:
    John Hughes and George Cummings, plaintiffs in error, vs. Margaret Lane, defendant in error.

      Error to Madison.

    A certificate of acknowledgment of a deed, by a feme covert, will be held sufficient to convey her title and interest in a lot of wbicb she was the owner in fee; which shows that the requirements of the statute have been substantially complied with. (Totiam Curiam.)

    But this is not to be understood as sanctioning a departure, in any essential particular, from the requirements of the law, inasmuch as a married woman can only be divested of her real estate in the mode and manner which the Legislature has prescribed.
    The words "does not wish to retract/* areno part of the acknowledgment; but they are inserted in the statute, to afford a married woman an opportunity to avoid a deed conveying away her real estate, which she has voluntarily executed, if at the time the officer takes the acknowledgment, she thinks proper to retract what she has done.

      This was an action of ejectment, brought by Margaret B. Lane, to recover the possession of lot six, in block three, in the city of Alton. The cause was submitted to the Court upon an agreed state of facts. The Court, Underwood, Judge, at the March term, 1849, found the defendants guilty, and that the plaintiff was entitled to an estate in fee simple to the lot in question. A motion for a new trial was made, and overruled.
    The agreed case is substantially as follows: That one Ninian Edwards, the father of the plaintiff, was the owner in fee simple of the premises in the declaration mentioned, and died possessed thereof; that by operation of his will the plaintiff became entitled in fee simple to the lot in question; that the plaintiff and her husband, James S. Lane, then residing in Alton, Madison county, Illinois, made a deed of said property, purporting to convey to one Caleb Stone, for a valuable consideration, in fee simple, the premises mentioned, together with another lot, to wit, lot five, in block three, to which the defendant in error had only a right of dower; that when said conveyance was made by James S. Lane and the defendant in error, to said Stone, the said James S. Lane, husband of the defendant in error, took back a mortgage from said Stone to himself, to secure a part of the purchase money for said lot, which was due from Stone; that afterwards the husband foreclosed the mortgage given by Stone, on the lot in question, for the money due by the mortgage, and by regular proceedings in chancery, by a decree of strict foreclosure, became the owner of all the title to the said lot, which had been conveyed by Lane and the defendant in error to Stone; that afterwards one Joseph Asken and John Wordenheimer obtained a judgment, in the Madison Circuit Court, against the said James S. Lane, and that by a legal sale of said lot, upon an execution issued on said judgment, said Wordenheimer purchased all the title that said James S. Lane had in the said lot, and received a sheriff’s deed duly executed therefor; that the defendants are in possession of the said lot, holding under the said Wordenheimer; that after the said purchase of the said lot by the said Wordenheimer, and after obtaining his deed therefor from the sheriff, and after he had taken possession of the said lot, but before the commencement of the present action, the said James S. Lane, the husband of defendant in error, departed this life.

      The point to be decided in this case is, whether the defendant in error, by joining her husband in the deed made to Caleb Stone, conveyed away all her title to the said lot, or only the interest which she might hold as a married woman. The acknowledgment is set out at length in the opinion, and need not be again set out here.
    Hughes & Cummings assign the following errors :
    That said Court erred in not rendering a verdict for the defendants, and a judgment on such verdict, upon the testimony offered to the Court, and contained in the agreed state of facts. The Court erred in not granting anew trial, as asked for by the defendants. The Court erred in finding a verdict for the plaintiff below, and rendering a judgment thereon for said plaintiff.
    W. T. Martin, for plaintiffs in error:
    The deed made by defendant in error does pass her land. A certificate of acknowledgment, to a conveyance of land of a feme covert, owned in her own right, which substantially complies with the requisitions of the law, is sufficient. 3 McLean’s Rep., 245; 3 Dana, 111; 5 Blackford, 481; 6 Blackford, 475; 1 Iredell, 313; 15 Ohio Rep., 423; 16 Ohio Rep., 599, 639, 799.
    L. Davis and N. Edwards, for defendant in error:
    The certificate of acknowledgment to the deed in this case, is not in the form prescribed by the statute, so as to convey the fee simple of the appellee. Rev. Laws 1833, 134. Where a married woman joins with her husband in a deed conveying her land, the certificate of acknowledgment must substantially, at least, conform to the mode prescribed by the statute. Elliott et al. vs. Piersol, 1 Peters, 338; 3 Harris & McHenry, 432; 1 Harris & Johnson, 588, 751; 5 Mason, 67; 3 Dana, 289 ; 6 J. J. Marshall, 532; 5 Gilman, 125. The certificate of acknowledgment to the deed in this case, does not contain the words, “ she did not wish to retract,” nor any language equivalent thereto. These, or equivalent words, are indispensable, and the deed is, therefore, inoperative to convey the fee simple of the appellee. The certificate of acknowledgment is in the form prescribed for a relinquishment of dower, and can only have the effect to release her dower in the lot mentioned in the deed, to which she had only a right of dower, and cannot be construed to convey the other lot which she owned in fee simple.
    B. F. Edwards, on same side :
    It is unnecessary to cite authorities to show that, by the common law, the deed of a married woman is void. It is only by the force of statutory provisions that she is enabled to convey her interest in lands. The certificate of the acknowledgment of a conveyance by her, is as much a material part of the execution of the deed, as her seal or signature. Without it the law presumes it was obtained by fraud or coercion. Mariner vs. Saunders, 5 Gilman, 125. The certificate to this deed is substantially defective, first, in not showing that “the contents of the deed were made known and explained to ” Mrs. Lane, and, second, in not containing the declaration by the wife, “ that she does not wish to retract.” Both of which facts the statute imperatively requires should expressly appear in the certificate. Rev. Laws 1833, page 134; 1 Hilliard’s Abridgement, 55, sec. 15; Nantz vs. Bailey, 3 Dana, 115; Good vs. Zercher, 12 Ohio, 364; Meddock vs. Williams, ibid, 381. The decisions in Ohio and Indiana, referred to by Mr. Martin, are not applicable. They only show the construction given by those Courts of their own statutes. The construction so given, I deem clearly erroneous. But the requisitions of our statute are materially variant from the statutes of those states.
   Opinion by Mr. Justice Trumbull:

James S. Lane and his wife, Margaret B. Lane, who is the defendant in error, in 1836, executed and delivered to Caleb Stone, a deed of conveyance for two lots of land, situated in the city of Alton. The fee in one of the lots belonged, at the time, to Mrs. Lane, and in the other, she had only a right of dower.

The only question in the case—the facts having been agreed upon by the parties—is, whether the acknowledgment of the deed by Mrs. Lane, was sufficient to convey away her title and interest in the lot, of which she was the owner in fee, and for the-recovery of which, she instituted this action of ejectment, after the decease of her husband. According to the terms of the agreed case, judgment was to be given for the plaintiff below, that she recover the possession of the premises sued for, in case the certificate of acknowledgment was held insufficient, otherwise the defendants were to have judgment. The Circuit Court held the acknowledgment insufficient, and gave judgment for the plaintiff.

The statute authorizing a husband and wife, residing in this state, to convey the real estate of the wife, and providing the manner of acknowledging the.deed, declares, that they may execute any deed conveying such estate, and “ if, after the execution thereof, such wife shall appear before some Judge, or other officer, authorized by this act to take acknowledgments, to whom she is known, or proved by a credible witness to be the person who executed such deed or conveyance, such Judge or other officer shall make her acquainted with, and explain to her the contents of such deed or conveyance, and examine her, separate and apart from her husband, whether she executed the same voluntarily, freely, and without compulsion of her said husband; and if such woman shall, upon such examination, acknowledge such deed or conveyance to be her act and deed, that she executed the same voluntarily and freely, and without compulsion of her husband, and does not wish to retract, the said Judge or other officer shall make a certificate, endorsed on, or annexed to such deed or conveyance, stating that such woman was personally known to the said Judge or other officer, or proved by a witness (naming him) to be the person who subscribed such deed or conveyance, and setting forth that the contents were made known and explained to her, and the examination and acknowledgment aforesaid; and such deed, (being acknowledged or proved according to law, as to the husband) shall be as effectual in law as if executed by such woman while sole and unmarried.” R. L. 1833, page 134, sec. 13.

The acknowledgment upon the deed in question is as follows :

“On this eighteenth day of June, A. D. 1836, personally appeared before the undersigned, a justice of the peace in and for the county aforesaid, James S. Lane, and Margaret B. Lane, his wife, known to me to be the identical persons described in, and who executed the within deed, and acknowledge that they severally signed, sealed and delivered the same as their free acts and deeds, for the uses and purposes therein mentioned. And the said Margaret B. Lane being by me made acquainted with the contents of the within deed, and being by me examined, separate and apart from husband, acknowledged that she executed the same freely and voluntarily, without any compulsion of her husband, and that she relinquishes her dower in the lands and tenements hereby conveyed. All which I hereby certify under my hand and seal, the day and year last above written.

“William Martin, (l. s.”)

No objection is taken to the form of the deed, but two objections are taken to the acknowledgment. First, that the certificate omits to state “ that the contents of the deed were made known and explained to her;” second, that it omits the words “ does not wish to retract.”

It has been frequently decided by this Court, that a certificate of acknowledgment is sufficient, which substantially complies with the requirements of the statute. McConnell vs. Johnson, 2 Scam., 523; McConnell vs. Read, 2 Scam., 371; Livingston vs. Kettelle, 1 Gil., 116; Vance vs. Schuyler, ibid, 160; Delaunay vs. Burnett, 4 Gil., 454. None of these cases, however, had reference to the acknowledgment of a deed by husband and wife, conveying the real estate of the wife. But if a literal compliance with the statute is unnecessary, in taking the acknowledgment of persons laboring under no disabilities, and when, if the certificate were defective, no serious injury would be occasioned thereby, as the execution of the deed might be otherwise proved, there would seem to be equal propriety in requiring nothing more than a substantial compliance with the statute, in taking the acknowledgment of a married woman to a deed conveying her real estate ; as the certificate of acknowledgment in such a case, constitutes a part of the conveyance, and if held to be sufficient and perfect upon its face, the feme covert may still avoid it, by showing that any compulsion, or undue influence, was used to induce her to sign and execute the deed, and that the certificate does not truly state the facts; while, on the other hand, if the certificate of acknowledgment is held to be defective, it can never be perfected, although the parties may have intended to execute a good and perfect conveyance, and the defect has been occasioned by the ignorance or mistake of the officer whose duty it was to make a valid certificate. Accordingly, in other states, where questions have arisen upon statutes similar to our own, as to the sufficiency of certificates of acknowledgment, in cases where the land of the wife is sought to be conveyed, we find that the Courts have uniformly held, that the form of the certificate is immaterial, provided the directions of the law are substantially complied with. Kottman and wife vs. Ayer, 1 Strobhart’s Law Rep., 571; Gregory vs. Ford, 5 B. Monroe, 481; Chesnut vs. Shane, 16 Ohio, 599; Shaller vs. Brand, 6 Binney, 438; Talbot vs. Sampson, 1 Pet. C. C., 188. It may even be questionable whether some of the Courts, in their anxiety to uphold conveyances of this kind, which would be void, if the certificates of acknowledgment were held to be defective, have not really dispensed with what might properly be regarded as a substantial requirement of the law. In the case of McIntyre vs. Ward, 5 Binney, 296, the Court go very far to sustain a conveyance made by husband and wife, of the real estate of the wife. The statute of Pennsylvania required that the person taking the acknowledgment in such a case, “ should read to the wife, or otherwise make known to her, the full contents of the deed ;55 and this the certificate omitted to state. The Court decided the certificate to be sufficient, and held, that “ no particular form was necessary; that the words of the act need not be used, if its directions are substantially complied with; ” that the “Court would be departing from the line of its duty, if it were studious to avoid conveyances by objections founded merely upon form;55 and, as it appeared from the certificate, that the wife had acknowledged the granted premises to be “ the right, title, interest and property of the within named Samuel Todd, (the grantee) his heirs and assigns forever,” it was fairly to be presumed, that she knew that the land was conveyed to Todd in fee simple; and if she had this knowledge it was all that was material. In Indiana, a similar decision has been made. The statute of that state, R. C. 1824, p. 334, declares that the person taking the acknowledgment, “ shall examine the wife, separate and apart from her husband, and shall read, or otherwise make known, the full contents of such deed or conveyance, to the said wife, and if, upon such separate examination, she shall declare that she did, voluntarily and of her own free will and accord, and as her act and deed, seal and deliver the said deed or conveyance, without any coercion or compulsion from her husband, every such deed or conveyance shall be, and the same is hereby, dedared to be good and valid in law, &c.; Provided, that the judge, justice or recorder, taking the same, shall, under his hand and seal, certify the same upon the back of such deed or conveyance.” Under the foregoing statute, the Supreme Court of Indiana, in the case of Stephens vs. Doe, 6 Blackf., 475, held a certificate of acknowledgment sufficient, which simply stated that the husband and wife personally appeared before the officer, and that the wife “ being examined separate and apart from her husband, as the law directs, and acknowledged the above deed of conveyance to be their voluntary act and deed, for the uses and purposes therein mentioned.” In pronouncing their opinion, the Court say: It will be presumed, the contrary not appearing, that the officer did his duty as to the separate examination of the wife, and the making her acquainted with the contents of the deed.” The case of Nantz vs. Bailey, 3 Dana, 111, is to the same effect. The Kentucky statutes required that the wife should be privily examined, separate from the husband; that the deed should be shown and explained to her; that she should acknowledge the same when apart from her husband, and that there should be a certificate of such privy examination, and of the declarations and consent of the wife ", yet a certificate, which stated that the deed was acknowledged by the husband and wife, and that the wife being examined separate and apart from the husband, ££ declared that she relinquished her right of inheritance to the land contained in this deed, of her own free will and accord, without the threats or persuasion of her husband, and wishes not to be retracted,” was held a valid acknowledgment to convey the estate of the wife, although it was objected that the certificate did not state that the deed was acknowledged by Mrs. Nantz, when apart from her husband, or that she had acknowledged that she had signed and sealed the same, or that the deed was, on privy examination, shown and explained to her. The Court, in expounding the statute, say: ££ The object of the foregoing provision was to afford a reasonable opportunity for ascertaining that the wife had freely executed the deed, and understood the nature and consequences of her act. And any certificate which, by clear interpretation, imports that she had been privily examined by a proper person, and had freely acknowledged the deed, and understood, or had the legal means for understanding, what she did, would, whatever might he its form, be sufficient. In the case of McKeen vs. Delaney, 2 Cond., 179, a certificate of acknowledgment, admitted not to be in compliance with the law under which it was taken, was held valid upon the ground alone that it had been the practice under the law to take acknowledgments in that manner. Many other cases might be cited to the same effect, and however unwilling we might be, if this were á new question, to sanction a departure from the very words of the statute, we feel authorized and required, in view of the numerous decisions which have been made, in our own and sister states, upon similar statutes, and of the consequences which would result if a strict literal compliance with the statute were required, to hold any certificate of acknowledgment sufficient which shows that the requirements of the statute have been substantially complied with. In laying down this rule, we are not to be understood as sanctioning a departure, in any essential particular, from the requirements of the law. On the contrary, we hold that a married woman can only be divested of her real estate in the mode and manner which the Legislature has prescribed.

Tested by this rule, we will now examine the certificate in question. That certificate states that Mrs. Lane “was made acquainted with the contents of the within deed,55 which, in our judgment, is equivalent to setting forth, “ that the contents were made known and explained to her.55 How is it possible that the officer taking the acknowledgment, could make her acquainted with the contents of the deed, without its contents being known and explained to her ? The substantial requirement of the law in this respect is, that the party should be informed as to what she was executing, and that she was so informed, is most manifest from the certificate. To hold this acknowledgment insufficient for the reason assigned, would be to require the very words of the statute to be incorporated into the certificate, which would be in conflict with every decision to which we have been referred; and the consequence of such a decision would be, to render invalid nearly every deed in the state, executed by husband and wife for conveying the real estate of the wife ; for we all know, that scarce a certificate of acknowledgment can be found which literally conforms to the statute; although it would certainly be safer and better if officers, in making their certificates, would adopt the language of the act.

Upon the second point, as to the necessity of inserting in the certificate the words, “ does not wish to retract,” we do not understand that those words necessarily constitute any part of the acknowledgment, or that the statute requires them to be set forth in the certificate. The officer taking the acknowledgment is not required to examine the wife as to whether she wishes to retract. He is only to examine whether she executed the deed voluntarily, freely and without compulsion of her said husband,” and to require him to insert in the certificate the words, “ does not wish to retract,” would be requiring the insertion of something in the certificate, about which he had made no examination. The officer is bound to examine the wife as to her free and voluntary execution of the deed, without the compulsion of her husband; and though she acknowledge these facts, the law even then puts it in her power to avoid the deed, by informing the officer that she wishes to retract what she has done; and, in that event, the officer could not make the requisite certificate. It will be observed that the words, “ does wish,” are in the present tense, and if in supplying the nominative to those words, which is understood, we insert the words, “ if she,” before “does,” the meaning of the sentence is made apparent. In our view, therefore, the words does not wish to retract,” are not necessarily a part of the acknowledgment, but they are inserted in the statute to afford a married woman an opportunity to avoid a deed, conveying away her real estate, which she had voluntarily executed, if, at the time the officer takes her acknowledgment, she thinks proper to retract what she has done. At all events, we think the statute capable of this construction, and it is the duty of the Court, if possible, to adopt such a construction as will uphold rather than destroy titles.

The question whether a certificate of acknowledgment, showing that the feme had relinquished her dower only, would be sufficient upon a deed whereby husband and wife were conveying only the real estate of the wife, does not arise, and is not decided in this case. To one of the lots embraced in the deed in question, Mrs. Lane had only a right of dower, and the statement in the certificate upon the deed that she relinquished “ her dower in the lands and tenements 55 thereby conveyed, was proper as applied to that lot, but that statement need not, necessarily, and cannot without involving an absurdity, be applied to the lot which she owned in fee, and in which she had no right of dower to relinquish. It is a rule in the construction of all writings, that they are to be so understood, as to have a legal and actual operation; and a construction is never to be adopted which would be senseless in view of the circumstances of the case, or wholly inapplicable thereto. Story on Contracts, sec. 640. Lord Coke says, “whenever the words of a deed, or of the parties without deed, may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken.55 1 Thomas Coke, 620-42, b.

The words “ lands,55 “ tenements,55 though in the plural, are general terms, used indiscriminately in certificates of acknowledgments, whether the deed contains one or several tracts of land. A deed cannot probably be found, the certificate upon which states that the feme relinquishes her dower in the land and tenement thereby conveyed. The statute, in providing the mode of relinquishing dower, uses the words “ lands and tenements,55 in the plural number, and it was never supposed necessary or proper to use those words in the singular, in a certificate to a deed embracing but one tract of land. So much of the certificate in this case as relates to relinquishing dower, should, therefore, be considered as applying only to the lot in which there was a right of dower to relinquish. The certificate is not in the form prescribed by statute, nor in the one usually adopted in ease of relinquishment of dower merely. The statute providing the mode of acknowledging a deed by a married woman, so as to release dower, declares : “If she acknowledge that she executed the same, and relinquishes her dower in the lands and tenements therein mentioned, voluntarily, and freely, and without the compulsion of her husband, the Judge,55 &c. R. L. 1833, p. 133. The certificate upon the deed in question states, that Mrs.'Lane “ acknowledged that she executed the same, freely and voluntarily, without any compulsion of her husband, and relinquishes her dower in the lands and tenements hereby conveyed.55 It is the execution of the deed, not the relinquishment of dower, that is acknowledged to have been made freely and voluntarily, without any compulsion of the husband, and this, together with the other statements of the certificate, as to privy examination and acquaintance with the contents of the deed, was sufficient to pass Mrs. Lane’s interest in the land which she held in fee; but whether the statement simply that she “ relinquishes her dower in the lands and tenements hereby conveyed,” without stating that the relinquishment was made voluntarily and freely, and without compulsion of her husband, is sufficient to bar her dower in the lot belonging to her husband, is not now a question before us.

Being of opinion that both objections to the certificate of acknowledgment are untenable, and that the certificate contains all the essential requisites of the law to pass the inheritance of Mrs. Lane, the judgment of the Circuit Court is reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Catón

dissented, and gave the following reasons :

I agree that a substantial compliance with the statute, in taking the acknowledgment and giving the certificate, is sufficient. In this case, I do not think there has been such a compliance. A married woman is incapable of conveying her lands, or releasing her dower, except as she is authorized by the statute, and then it must be done in the mode directed by the Legislature, and in no other. There are two sections of our statute which authorize a married woman to join in a conveyance with her husband. The first is the 17th section, which authorizes a married woman to join with her husband in conveying her fee simple interest in lands. The other is the 21st section, which authorizes her to release her dower. These sections require different examinations to be made by the officer, and different certificates to be given, in order to give effect to the act of the wife; and I conclude that the Legislature intended to make a substantial difference, or else both cases would have been provided for in the same section, and in the same language. It seems to me that the Legislature did intend that the acknowledgment should be taken with more care, and that the certificate should be in a different form in the one case than in the other. The first requires that the officer shall certify, “ that the contents were made known and explained to her.” The other only requires the officer to certify, “ that she was made acquainted with the contents thereof;” that the expressions, “ the contents were made known and explained to her,” and “ she was made acquainted with the contents,” are the same in substance, is undoubtedly true; but the addition of the words “ and explained to her,” which are required by the 17th section to be in the certificate, is something more, in substance. The officer is not only required to make known, but he must explain the contents of the deed. And there is a substantial reason for this. In the one case, she is conveying a present, substantial existing title; in the other, she is releasing an uncertain, contingent expectancy, which is no estate whatever in the land. Blain vs. Harrison, post. The form of the conveyance may be the same; the effect, however, is very different, and this is what the Legislature intended the officer should explain. It was not done in the present case. There is another reason for this difference, which will be alluded to hereafter.

In other respects these two sections materially differ in the certificate required, according to the object to be effected by the conveyance. The section authorizing the wife to convey her fee, provides that “if such woman shall, upon such examination, acknowledge such deed or conveyance to be her act and deed, that she executed the same voluntarily and freely, and without compulsion of her husband, and does not wish to retract the same” said judge, &c., shall certify “said acknowledgment.” Now, what is she to acknowledge ? First, that she executed the deed; second, that it was voluntary, and third, that she does not wish to retract. It seems to me clear that these three things are substantive requirements of the statute, and if they are not in the certificate there is a substantial omission. I do not say they must be there in the words of the statute, but something equivalent to each must be there, or the law has not been complied with. The first two are in the past tense, because they refer to the execution of the deed, which had been already done. The third is in the present tense, because it refers to the present condition of her mind, which it is deemed important to ascertain, and commemorate in the acknowledgment, which the statute requires shall set forth “ the examination and acknowledgment aforesaid.” This I understand to mean the substance of the whole acknowledgment. If the officer may omit one part, then he may another, and thus we may fritter away the whole statute. This is a statute loosening the securities of the common law, by which the wife’s estate was guarantied to her, and should not be extended beyond its manifest intent.

The other section, providing only for the release of dower, is different in form and substance, and less particular in its requirements. The Legislature, with good reason, considered the release of dower of less importance than the conveyance of her estate, and has required less solemnity and deliberation in the act. This last section provides, that ££ if she acknowledge that she executed the same, and relinquishes her dower in the lands and tenements therein mentioned, voluntarily and freely, and without the compulsion of her husband, such Judge,” &c., shall certify that ££ she acknowledged such deed as aforesaid.” In this certificate, the effect of the act, that is the release of dower, is mentioned, and there is nothing said about her wish to retract. Here we may see another reason why the officer is not required to explain the deed, for the very form of the examination and certificate explains to the woman that it is only her right of dower that she is parting with. The acknowledgment before us is precisely and technically in the form required by the statute, for the release of dower; and yet it is held sufficient to pass the wife’s estate- If the acknowledgments may he the same, why are these two sections so widely variant ? It is said that the object of the first section is, to prohibit the officer from making the certificate, when the wife volunteers the information that she then wished to retract, although she had previously executed the deed voluntarily. I would inquire whether the officer would be justified in making the certificate, in case of a release of dower, where the wife stated that, although she had voluntarily executed the deed, she had changed her mind, and then wished to retract, and that she appeared before the officer only through fear of her husband ? Such, I imagine, would not be held to be the law so long as we hold the deed inoperative as to the wife, until a voluntary acknowledgment and certificate are made. I believe the Legislature intended this additional circumspection and solemnity, in case of the conveyance of the wife’s estate, should be substantially observed. There is a reason for it, and I think the statute enjoins it. I do not think it necessary to go into an examination of the decisions of other Courts which may tend to support my view of the case, or to review those which are supposed to sanction a more loose construction. In none of them, as it seems to me, has the intention of the Legislature been so manifestly departed from, with such unerring lights to determine what that intention was. With consequences I have nothing to do, where I think the law is manifest. It may be, and I presume is most generally the case, that the insufficiency of acknowledgments are attributable to the ignorance or carelessness of the officer, rather than the unwillingness of the wife to part with her interest, and yet it may sometimes happen that the wife’s estate will be illegally and unjustly taken from her. Her inexperience in business, her desire for domestic peace, her liability to he persuaded by a misplaced confidence, her dependant position, her exposure to imposition, and the constraining influences with which she is surrounded, all conspire to render it peculiarly proper that both the Legislature and the Courts should protect her interests against deception or coercion.

In this very case it may not be improbable, that both Mrs. Lane and the officer supposed that she was only doing what she professed to do, that is, releasing her dower. In one of the tracts of land mentioned in the deed, she had but a dower interest, and as to that, the deed was effectual, hut as to the other, I think it was inoperative. This would give full effect to the acknowledgment, so far as it professed to operate, and makes it mean precisely what it says. I am of opinion that the judgment should be affirmed.


text:
    Ignatius R. Simms, appellant, vs. Nelson H. Clark and Sarah W. Clark, appellees.

      •Appeal from Morgan.

      A party wlio innocently pays away a counterfeit hill, is not bound to take it back, unless it is returned upon him within a reasonable time, after it is discovered to be spurious.
    But what shall be considered a reasonable time, must necessarily depend upon the situation of the parties, and the facts and circumstances of the particular case.
    Y» here a party who has paid out a eounteríeit note as genuine, on being notified within a reasonable time, of its want of value, states that he will not take the note back, unless compelled by law, such statement dispenses with an offer at that time to return the note*

      The defendants in error brought, their action in debt, at the March term, 1849, of the Morgan county Circuit Court, upon a judgment theretofore obtained in the said Court, for the sum of six hundred and eighty-four dollars and eight Gents, against the plaintiff in error. To this action Simms pleaded payment and satisfaction of said judgment. To this plea the defendants in error replied, that Simms paid a bank note to the plaintiffs, of the denomination of fifty dollars, being of the Miners’ Bank of Potts-ville, in the county of Schuylkill, in the state of Pennsylvania, (particularly describing it;), which said bank note was part and parcel of the said sum of six hundred and eighty-four dollars and eight cents, which the said defendant, in said plea, pretends to have paid in satisfaction of said judgment. The said plaintiffs averred said note to be counterfeit, and that the same was returned to defendant in a reasonable time, &c. Three rejoinders were interposed to this replication. 1. That defendant did not pay to the plaintiffs any bank note of the Miners’ Bank of Pottsville, of the denomination of fifty dollars, in manner and form as in said replication was alleged. % That defendant did not pay any counterfeit bank note of the denomination of fifty dollars as the replication alleged. 3.. That said plaintiffs did not use due diligence to determine whether said note, &c., was genuine or not; nor did they, within any reasonable time, give notice to the defendant that said note was counterfeit, &c. Issue was joined, and the cause was tried before Woodson, Judge, and a jury, at March term, 1849, and verdict and judgment for plaintiffs below, for fifty-two dollars and thirty-seven cents, debt and damages. There were two. trials. A motion for a third trial was overruled, and the defendant appealed. The facts of the case are stated sufficiently in tire opinion of the Court.
    D. A. Smith, for appellant.*
    The only question submitted to the Court is, the propriety of granting a new trial. It is insisted that the verdict is against the instructions of the Court and the evidence. Graham on New Trials, chap. 15, 4th head, p. 555. The evidence shows that the counterfeit hank note, which was passed off innocently, was not returned to the appellant within a reasonable time, after it was discovered that the note was fraudulent. Gloucester Bank vs. Salem Bank, 17 Mass., 42 to 46; Bank of United States vs. Bank of Georgia, 6 Peters’ Cond. Rep., 120; Wilson vs. Alexander, 3 Scammon, 394; Starkie on Evidence, 450 to 457, and notes. The principle laid down in Starkie, at the close of page 455, has been unjustly applied by the jury.
    J. Evans, for appellees::
    1. That the instructions given for Simms, -in the Court below, were not in accordance with the law of the case, and if this Court should be of opinion that said instructions should not have been given then, a new trial will not be granted, even if it should appear that the jury found against said instructions. 2. The facts, as proven in the case, did not warrant the jury in finding a verdict in accordance with the instructions given for the defendant, Simms, below, even if those instructions had been the law in the case. 3. The question whether the plaintiffs in the Court below returned said counterfeit bill, within a reasonable time, is purely a question of fact, to be decided by the jury. No general rule can be laid down to govern the case, as each Case must depend upon the particular facts and circumstances attending it; and, as in this case, the jury has decided that fact, the Court will not interfere with their verdict. 1 Starkie Ev., 452 to 458. 4. And if the question, whether the plaintiffs below returned said counterfeit bill to the defendant in a reasonable time, is a mixed question of law and fact, the jury, acting under the advice and instructions of the Court, have found a verdict for the plaintiffs twice, and not against the facts nor the law of of the case. 1 Starkie Ev., 452 to 458.
    The Judge who tried the cause below, being satisfied that substantial justice had been done, refused to grant the defendant a second new trial, and this Court have decided it a correct rule in this Court not to disturb the verdict in such cases.
   Opinion by Mr. Justice Trumbull :

This was an action of debt, brought by the appellees to recover from the appellant the amount of a fifty dollar counterfeit bill, which the latter had paid them upon a judgment which the}' held against him. The jury found for the plaintiffs below, and the refusal of the Court to set aside their verdict is now assigned for error. The plaintiffs alone introduced evidence before the jury, which it is insisted was insufficient to warrant their finding. The facts as disclosed by the record are briefly these : Simms, who was indebted to the appellees in the sum of six hundred and eighty-four dollars and eight cents, paid said indebtedness between the 27th of June, 1846, and the 7th of September following, to Judge Brown, who was acting at that time gratuitously as the mutual friend of both parties, and as part of the money so paid, he gave him a fifty dollar counterfeit bill. The appellees at that time resided in the state of Mississippi, but they had an agent, one Branson, residing at Jacksonville, which was also the residence of Simms and all the parties through whose hands the bill passed as hereinafter set forth, except of Campbell, the Auditor of State, who resided at Springfield. The counterfeit note was paid to Brown on the 24th of July, or 8th of August, and on the same day it was paid, or the day following, was handed over to Branson, and he deposited the same in the safe of one Johnson, who examined the note with reference to a counterfeit detector, not of late date, and pronounced it good. The note remained in the safe of Johnson till September 14th, when it was loaned to Neely, the deputy sheriff of Morgan county, on account of the principal sheriff, Davenport, who, the day following, transmitted it to Springfield to the Auditor of Public Accounts, with whom it was deposited on account of said Davenport as collector. The Auditor detected the note to be counterfeit, notified Davenport of it by letter, and requested him to take it up, which he did October 10th. Davenport, immediately upon receiving the notice from the Auditor, notified Neely, who immediately notified Branson, who immediately notified Brown, and requested him to notify Simms, that the note was counterfeit, and would be returned; which Brown did, but could not tell how long it was after the note was returned to Jacksonville: it might have been one or twenty days. He called upon Simms, and told him, without any offer to return the bill, that he, Brown, had received the bill of him, and that Simms would be expected to take it back, to which Simms replied, that if he had paid the note it had been a long time since; that from lapse of time he had lost the run of the note, and bis opportunity of recourse, and that he would not take it back unless compelled by law. On the 4th of November, 1846, Branson called upon Simms with the bill, and requested him to take it back, which he refused to do, saying that Judge Brown had previously spoken to him on the subject. It was, also, in evidence, that during the year 1846, Simms kept the Western House, in Jacksonville; that one McKay was his clerk, and while so, that he presented said note to a merchant in Jacksonville to get it changed, or examined as to its genuineness; that said merchant examined the bill with reference to a recent counterfeit detector, pronounced it a counterfeit, and so informed McKay.- It was further proved, that the note might have been taken up at Springfield, and returned to Simms at Jacksonville, in three days after it was discovered to be counterfeit. It is objected to this evidence that there has been such delay and neglect in returning the note to Simms, as thereby to discharge him from all obligation to take it back. The law undoubtedly is, that a party who innocently pays away a counterfeit bill is not bound to take it back, unless it is returned upon him in a reasonable time after it is discovered to be spurious, and the reason of the rule is, to enable him to trace out and fall back upon the person from whom he received it. Thomas vs. Todd, 6 Hill, 340. But what shall be considered a reasonable time, must necessarily depend upon the situation of the parties, and the facts and circumstances of the particular case. No negligence is imputable to any of the parties into whose hands this bill fell, for not detecting in the first instance its want of value, because the means of ascertaining its genuineness may have been, and probably were, absent from all the parties. Markle vs. Hatfield, 2 John., 455. In this case there is no pretence of negligence, unless it arises out of the failure of Branson, immediately after the note was returned to him, to notify Simms. The note was returned to Jacksonville about the 10th of October, and Branson immediately requested Brown, through whom the money had been paid, to inform Simms of it. This was done, but when, does not appear. Brown, at the time of the trial in 1849, could not tell whether it was within one or within twenty days. It was certainly before November 4th, as Simms at that time, when the note was offered to him by Branson, stated that Brown had previously spoken to him upon the subject. Under this evidence, the jury were justified in finding that Brown notified Simms within a reasonable time after the note was returned to Jacksonville, or perhaps the very next day, as was most likely the case, he having been requested to do so, and the parties both residing in the same village. The statement of Simms to Brown, that he would not take the note back unless compelled by law, dispensed with an offer by Brown at that time to return it.

In our judgment this is not a case in which the verdict is so manifestly contrary to evidence, as to warrant its being set aside; nor is it a case in which there is a manifest want of evidence to sustain the cause of action.

Judgment affirmed.


author: Opinion by Mr. Justice Catón :

text:
    James Gordon, appellant, vs. William Crooks, appellee.

      Appeal from Morgan.

    Where it is apparent that the jury either mistook the evidence, or that they misunderstood the law as applicable to the evidence, a new trial will be granted.
    This was an action of debt, brought in the Morgan county Circuit Court, by Crooks against Gordon. The declaration avers, that Gordon, the defendant, at Lynnville, to wit, at the county aforesaid, on the 30th day of June, 1842, made to the plaintiff, and one Alexander Renton, who has since, to wit, on or about the 22d January, 1845, departed this life, his, the said defendant’s, promise and undertaking in writing, in the words and figures following, to wit:
    “ Rec’d, Lynnville, June 30th, 1842, of William Crooks and Alex. Renton, debts for collection, amounting to the sum of two hundred dollars, which I promise duly and faithfully to collect, and to pay as soon as collected, and to give up all the uncollected debts whenever called for by the aforesaid William Crooks and Alex. Renton, or pay the sum of two hundred dollars.
    “James Gordon.”
    Which promise and undertaking is in the possession of the defendant, or has been destroyed by him; and the plaintiff avers that defendant has collected the sum of seventy-five dollars-, “ which the plaintiff, through the agency of one of his attorneys, David A. Smith, demanded special payment of ” on, &c»; “and that the defendant should give up the remainder of said debts uncollected,” which defendant refused to do, whereby an action accrued, &c., to the damage of plaintiff, of two hundred dollars.
    To this declaration defendant pleaded several pleas. By the first plea he says he received said claims of the said Renton and Crooks, as a justice of the peace, for collection, to return, &c., and to pay over, &c., averring that Renton never did, in his lifetime, nor has Crooks, by any person having authority, demanded the money collected, or the claims uncollected, before the commencement of the suit; concluding with a verification. The second was a plea of non est factum, verified by defendant. The third plea avers the payment by him to Renton and Crooks, of all the money collected. The fourth plea was a plea of set-off. The fifth plea avers that the plaintiff, and one Turner, were partners in trade, at Lynnville, &c., under the name and firm of Turner & Crooks, and that defendant had loaned to said Turner, for the use of Turner &. Crooks, one hundred dollars, or thereabouts, and that Turner & Crooks were indebted to him for the rent of a room, in which they did their business, and that acting by their agent, Renton, and by themselves, for the purpose of paying their indebtedness to him, they placed these claims in his hands for collection; that these claims were due to Turner & Crooks, and not to Renton; admits that he collected a part of the claims, and avers that Turner, Crooks and Renton collected a part of these claims; that many of the claims were against insolvent debtors; and that after he had collected all that could be collected out of said claims, he accounted with Crooks and Turner and Renton, as their agent, and settled with them; and by consent of all parties, the amount collected by Gordon was applied to the payment of the amount due from Turner & Crooks to him, &c. The sixth plea avers that the claims received by defendant for collection, were the property of and due to Crooks and Turner, and that Renton had not any interest in them; that defendant had accounted with Crooks and Turner for the amount collected, and offered to return the claims uncollected, &c., and that all the claims had been accounted for, to and settled with Turner, &c. The seventh was a plea of nil debet.

    Upon all these pleas issue was joined, and a trial by jury, and judgment by Woodson, Judge, for $43 30, at Nov. term, 1848. A motion for a new trial was denied. The defendant then prayed his appeal, and filed his bill of exceptions, containing the evidence. The opinion of the Court contains so much of the evidence as is necessary to a full understanding of the question of law decided.
    M. McConnel, for appellant:
    That instruction on the plea of non est factum, was wrong, inasmuch as that plea changes the issue, and imposes upon plaintiff a burthen which would not otherwise belong to him. That the instruction in relation to the contract, stating that it could not be explained, &c., was wrong. It cut off the issues raised on the fourth and fifth pleas. That instruction in relation to the testimony of Turner was wrong; his testimony not being attacked or impeached. The motion for a new trial ought to have been allowed, as this case comes strictly within the rule laid down in the case of Dawson vs. Robbins, 5 Gilman, 72. No authority is shown in any person to institute the suit, or to make the demand of defendant upon the instrument in writing. The defendant was not bound to recognise the demand; it did not come from any person authorized to make it. If the authority was sufficient for some purposes, it did not authorize the collection of money due to Crooks and Turner, or to Crooks and Renton, but to Crooks alone. The authority, such as it was, was improperly before the jurjq it not having been read in evidence. Whitney vs. Whitman, 5 Mass., 404; Taylor vs. Sorsby, Walker’s Miss. Reps., 97.
    D. A. Smith, for appellee:
    Courts will not lightly disturb the verdicts of juries, particularly where there has been contradictory evidence. 5 Gilman, 569.
   Opinion by Mr. Justice Catón :

We are satisfied, after a very careful examination of the testimony in this case, that the jury either mistook the evidence, or that they misunderstood the law, as applicable to the evidence.

We think the jury were warranted in believing, that the receipt upon which the suit was brought, in terms, was given to Crooks and Renton. Mrs. Renton had inspected it recently, and taken a copy of it, which she produced in Court, while Turner, who says it was given to Turner & Crooks, had never seen it since it was originally given, and could not pretend to speak of its contents except in general terms. Although, as Turner says, it may have been given for accounts due to Turner & Crooks, yet there are some circumstances rendering it probable that it may have been given in the form as stated by Mrs. Renton. Turner says that he was about to leave the state, and the receipt was to be left with Renton, who was doing business for Crooks, and who, it is probable, was expected to settle with Gordon, for the accounts mentioned in the receipt. It may have been thought convenient, therefore, to insert the name of Renton in the receipt, instead of the name of Turner.

Besides Turner, there are four witnesses, who swear that Turner & Crooks had been carrying on business in partnership, and that Renton, in his life-time, admitted that Turner & Crooks were indebted to Gordon for money loaned, and that these accounts were placed in his hands, to provide for the payment of the lent money. This is substantially the same account that Turner himself gives of the transaction. There are two other witnesses, who testified that the accounts for which the receipt was given, were in the hand-writing of Turner, one of the members of the firm of Turner & Crooks.

There is no pretence that there was more than one receipt given by Gordon; and although that expressed on its face to be given to Crooks and Renton, we think it established, beyond controversy, that it was, in fact, given for accounts due to Turner & Crooks, and to provide for the payment of a debt due from the firm to Gordon; and we see no reason to doubt the statement made by Turner, that he subsequently settled with Gordon; which settlement was approved by Crooks. That Turner, as one of the members of the firm to whom the accounts belonged, was authorized to make such settlement, and discharge the defendant, cannot be doubted, and as this does not appear to have been explained to the jury, it is probable that they supposed, as the receipt was given to Crooks and Renton, Turner, although interested in the subject matter, had no right further to interfere with it. The mistake was a natural one, and, we think, explains a verdict which would otherwise appear unaccountable. We are of opinion that a new trial should have been granted. Several other errors are assigned, but we do not think it necessary to investigate them.

The judgment of the Circuit Court is reversed, with costs, and the cause remanded. Judgment reversed.