text:
      John Hahn, Appellant, v. Henry Ritter, Appellee.
    APPEAL PROM 'ST: CLAIR.
    It ia ¡i general- rule ¡fraction's -for tñrt"a;.'tliát hikttCrs in discharge ¿r.justi¿'catión.of the alledged tort, must be' specially pleaded, and cannot be given' in evidence under tbégeneral'issue.' ' ....... ....
    In action's of trespass;-aAormer recovery itiuat' be specially pleadedj and cannot be'insisted upon under the plea of not guilty' .
    On the 7th of- Juné, 1849, plaintiff below,'filed his declaration in trespass (luare'ddmhm'f'regit, againstdefendañt'belbt^", contain-' ing two counts.
    1st count charges, that defendant on the 1st day of June, 1845, and on divers other days between thht day and the commencement of this action, broke the close of plaintiff, &c., broke down the fence and erected buildings, &c.
    2d count, charges that on the 1st day of June,, A. D. 184,8, and'at' divers other times, from that' time until the commence-, xnent- ofitliis action,'Deft'broke the close of plaintiff,"&c. '
    Defendant filedffhree- pleas; '
    ' 1st. '"'Gfenetál'-issue/ '
    2d. That-plaintiff as to imy trespass prior'to the 21st day of" March;-1848;'(when1 the first'action whs commenced,) áctio non,' becaüSé of:'-the'committing offthe said Supposed'trespass,"plain- " tiff sited !Mt& for-'the shrhe'ih-trespass'" and defendant was acquit*-' ted.
    8d. ■Idbei'um tmbmenlurri. "'

    Plaintiff joined issue ofi-first plea.'

      Replied to second, that the trespasses in the first count mentioned, are not the same, for which judgment was obtained.
    Replied to third plea by general traverse.
    The case upon these issues being submitted to the jury, they found a general verdict of not guilty for the defendant.
    Plaintiff moved for a new trial, which motion was overruled, and judgment given for costs in favor of defendant.
    The cause was heard before" Underwood, Judge, and a jury, at April Term, 1850.
    The plaintiff below prayed this appeal, and assigned for error, that judgment was for the defendant That the Court erred in giving instructions, and in overruling the motion for a new trial. That the Court erred in submitting the issue arising on the second plea, to the jury.
    G. Koeker for Appellant.
    The evidence not only preponderated in favor of the pltff, but was all in his favor. The jury mistook the law and the facts of the case, and the Court will give a new trial in such a case. 11 Ill. Rep., 142.
    The first instruction was clearly erroneous, because it presented to the jury a question of fact, as to whether the same trespasses were complained of in the same suit between the same parties; and one of laiu, as to whether the title was distinctly put in issue at the former trial This .latter question, was to be collected from the legal character of the pleadings, and was a question for the Court to decide. In an action of trespass quare clausum fregit, neither the general issue, nor liberum tenementum, puts the title to the freehold in issue.
    In order to create a bar, in an action quare clausum fregit, by plea of former acquittal, an issue must have been taken and found upon a traverse of a precise fact, material to the right in question. 8 East., 2d. of new edition, 174 & 8, 182, notes; 15Pick-ering, 276; 4 Conn., 276; 5 Conn., 127; 3 Wend., 36, 35, 38, 40; 8 Wend., 20, 23, 24, 25; 2 Gilman, 355; 6 Price, 146.
    3. The second instruction, as well as the first, is erroneous, because they contain at best mere abstractions; had not á particle of testimony to rest upon, and were eminently calculated to mislead.

      As to the second instruction in particular, the mere agreement would be void under the Statute of Frauds. 2d Gilm., 423. Instructions entirely abstract are erroneous. 1 Dana, 35 & 273; III, U. S. D., 568, §485, §504; 3 A. K. Marshall, 86.
    G. Trumbull for Appellee.
    An agreement by parol, for the settlement of a boundary line, is effectual, and not liable to any objection on the score of the Statute of frauds and perjuries. Jackson v. Dysling, 199, 200; Boyd’s lessee v. Graves et al. 4 Cond. R., 525; 4 Philips Ev., 232; 12 Wend., 130; Law Library, vol. 38, top p. 65; Crowell v. Mangles, 2 Gil., 423. That the award is conclusive; Doe &c., v. Roper, 2 East., 23; Jackson v. Gager, 5 Cow., 383, 387; 4 Phil. on Ev. 232, and cases there cited; Law Library, vol. 38, p. 338, 342.
    The defendant under the general issue may show title in himself. 2 Greenleaf’s Ev. p. 583, 8 T. R,, 403.
    When a former recovery is given in evidence, it is equally conclusive in its effect, as if it were pleaded by way of estoppel. 1 Greenleaf’s Ev. 635 and note, and p. 636 ; 10 Wend., 82, 84; 4 Phil. Ev. p. 31, 32, up to 35. Such is the rule in Virginia and Maryland. Brockway v. Kinney, 2 John., 210; Gardner v. Buckbee, 3 Cow., 127; Shafer v. Stonebreaker, 4 Gill. & John., 345; 7 Cranch, 565; 8 Wend., 21, 43, 45. To show that same matter was in issue in both cases, 5 Conn., 550.
    A judgment will not be reversed, because the Court has given a mere abstract legal proposition, or because the jury found against the weight of evidence. Corbin v. Shearer, 2 Gil., 483; Pate v. the People, ibid, 661; Granger v. Warrington, ibid, 310; Bates et al. v. Bulkley, 2 Gil., 394.
    Ancient reputation and possession, in regard to boundaries of streets in a town, are entitled to more respect in deciding on the boundaries of lots, than any experimental survey, that may afterwards be made. Ralston v. Miller, 3 Rand., 44.
   Treat, C. J.

In March, 1848, Hahn brought an action of trespass quave clausum fregit, against Ritter. The latter pleaded not guilty, and liberum tenementum. The case resulted in a verdiet and judgment in favor of Ritter. In June, 1849, Hahn brought another action for trespass on the same premises. The declaration contained two counts; in the first, the acts complained of were laid as committed before the first action was commenced; in the second, as committed after the bringing of that action, Ritter pleaded liberum tenementwm to both counts, the former recovery to the first count, and not guilty to the second count. The proceedings in the former action were read in evidence on the trial. The Court, at the request of Ritter, charged the jury, “that if they believe from the evidence, that the former suit was brought for the same identical trespass, for which this action is brought, and that the title to the land was then distinctly put in issue by the parties, they must find for the defendant.” The verdict and judgment were for Ritter, and Hahn brings the case into this Court.

It is a general rule in relation to actions for torts, that matters in discharge or justification of the action, must be specially pleaded, and cannot be given in evidence under the general issue. A former adjudication of the same cause of action, falls directly within this principle. It is distinctly held in the action of trespass, that a former recovery must be specially pleaded, and cannot be insisted upon under the plea of not guilty. 1 Chitty’s Pl., 10th Am. Ed., 506; Coles v. Carter, 6 Cowen, 691. Apply this rule to the present case, and the instruction was clearly erroneous. Ritter only relied oh the former adjudication, as a bar to a recovery on the first count of the declaration. The proceedings in the first action, were only admissible in evidence to sustain the plea to that count. The jury had no right to take them into consideration, in determining the issues on the second count. The instruction should therefore, have been restricted to the first count. It was erroneous, when applied to the whole declaration. But, if specially pleaded to both counts, the recovery in the first action, constituted no defence to the acts committed after that action was commenced. The finding, in that case, was general. It may have been for the defendant on the issue of not guilty. But,- if on the other issue, it did not necessarily determine the question of title' to the close, further than at the time of the commission of the acts complained of. The plea of liberum tenementumj in the former action, simply alledged that the locus in quo was the close of the defendant. It may have been Ms close when the trespass in that suit was committed, and yet his rights therein may have wholly determined before the suit was tried. The plaintiff may have had no interest whatever in the premises, prior to the bringing of the first action, and still have acquired an estate in fee simple, before the commission of the second trespass.

The judgment of the Circuit Courtis reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.


source: Caselaw Access Project

author: Caton, J.

license: Public Domain

text:
    Amy Davidson, Admtx, &c., et al., Pltffs in Error, v. Benjamin Bond, et al., Defts in Error.
    ERROR TO OLIITTOir.
    A party may have his judgment reversed, if the judgment below was exparte, and the errors which render it inoperative are patent.
    It is error to render judgment against a part of the defendants, while the cause remains undisposed of as to the others.
    The record in this case shows, that William Russell, now deceased, in his life túne, by his attorney filed in the office of the clerk of the Circuit Court of Clinton County a precipe and declaration in assumpsit, on the 16th day of June, 1846, against several defendants. A summons was issued, returnable at the September term, 1846, of that Court, which was returned served, on four of six defendants, on the return day of the summons, and returned not served on the other two. On the following day, an appearance was entered for four of the defendants, and subsequently a default for failing to plead was entered, and judgment was rendered against four of the defendants without making any order as to the other two.
    The plaintiffs below sued out this writ of error, to procure a reversal of their own judgment.
    Gr. Trumbull, for plaintiffs, made the following points :
    The Court erred in rendering judgment at thé return term of 'the process against the defendants in the judgment, they not having been served with process ten days before the commencement of the term of Court, and the ten days’ notice not having been waived by the defendants against whom the judgment was entered. Gore v. Smith, Breese, 206; R. S. 1845, p. 413, Sec. 5; Teal v. Russell et al., 2 Scam., 321; Tidd’s Prac., 1188.
    It was error to render judgment against part of the defendants, and make no order as to the other defendants who were served with process. Ladd et al. v. Edwards, Breese 139; O’Connor, et al. v. Mullen, 11th Ills. Reps., 116.
    That a plaintiff may reverse a judgment for his own errors, see Capron v. Van Norden, 1 Cond. Reps., 370; 2 Scam., 321; Jones et al. v. Wright et al., 4. Scam., 338; 2 Tidd’s Prac., 1134.
    S. Beeese, for Deffcs in Error.
   Caton, J.

On the return day of the summons it was served

on all of the defendants. During the term to which the summons was returnable the appearance of four of the defendants was entered. At the same term a default was entered and judgment rendered against the four defendants whose appearance had been entered, and no notice taken of the other two defendants who had been served with process. This was unquestionably erroneous. At the common law, in action upon a joint contract or obligation, the judgment must be rendered against all or none of the defendants, and this has only been changed by our statute, by allowing the plaintiff to take judgment against a part of the defendants, who alone had been served with process. This case should have been continued until the next term, when all of the defendants might have been proceeded against.

Here there was an error, for which the defendants might, at any time within five years from the rendition of the judgment, bring the case to this Court, and have the judgment reversed. And while this is the case, it is not an open question in this Court, since the decisions in the cases of Teal v. Russell et al., 2 Scam., 319, and Jones v. Wright et al., 4 Scam., 388, that the plaintiffs may bring the record here, and rid themselves of a judgment, which while it presents a bar to their obtaining a regular one, still affords them no sufficient security.

Inasmuch however, as their intestate was chargeable with the error which renders the judgment defective, they must pay the costs of getting it reversed. Jones v. Wright et al., 4 Scam., 338.

Let the judgment be reversed at the cost of the plaintiffs, to be paid in due course of administration.

Judgment reversed.


author: Trumbull, J.

text:
    John T. Knox et al., Pltffs in Error, v. Daniel B. Light et al., Defts in Error.
    error to franklin.
    Where a. plea of tender alone is interposed, but the money is not brought into Court, and the defendants refuse to comply rvitli the order of the Court directing the money to be brought in, the Court will either disregard the plea, or. strike the same from the files of the Court, and enter up judgment, as by default.
    This was an action of debt, brought by defendants in error, upon a promissory note, in the Franklin Circuit Court. A plea of tender was interposed, which was disposed of as stated in the opinion of the Court. A judgment was rendered for defendants in error, before Denning, Judge, at the April term, 1850. The defendants below sued out this writ of error.
    W. K. Parrish and Casey & Montgomery, for Pltffs in error.
    R. E. Wingate, for Deft in Error.
   Trumbull, J.

This was an action of debt upon a promissory note. All the questions in the case, arise out of the proceedings upon a plea of tender.

The plaintiffs in the Circuit Court after filing a replication to the plea, to which the defendants demurred, asked and obtained leave to withdraw their replication, and obtained a rule upon the defendants to pay the money into Court as alleged in their plea. The defendants refused to comply with the order, whereupon, the Court disregarding the plea, entered judgment against the defendants. In all this there was no error.

It was clearly within the discretion of the Circuit Court to allow the plaintiffs to withdraw their replication, and enter their motion for a rule upon the defendants to pay the money into Court. When they refused to comply, it would be strange indeed, if they could still have the benefit of their plea of ten■der. To make a tender good, the party must at all times have the money ready, so that the creditor may at any moment receive it, and stop the litigation.

To allow a party to defeat a recovery upon the ground that he had tendered and was then ready to pay the demand against him, when at the same time he refused to pay over the money when requested, would he trifling with the rights of the creditor.

The question whether the money was ready in Court, as stated on the plea was not a question of fact, to be determined by the jury, but a question to be determined on inspection by the Court.

When the Court saw that the money was not present and the defendants refused to produce it, it was manifestly right and proper for the Court, either to strike the plea from the files or disregard it altogether.

Judgment affirmed at the cost of the plaintiffs in error.

Judgment affirmed.


text:
    William S. Burkett, Pltff in Error, v. John Bond, Deft in Error.
    ERROR TO EDWARDS.
    In an action, the gist of which is carelessness, negligence, or imprudence on the part of a defendant, it is proper to admit any testimony, which tends to prove that a prudent man would have acted in the same manner.
    'The correctness of instructions asked in fire Circuit Court will not he inquired into, unless they were excepted to at the time.
    Burkett sued Bond in an action of trespass on the case, for so negligently and carelessly driving a mare out of his close, in which she was trespassing, as to cause her death. Bond filed a plea of the general issue. The cause was heard before Harlin, Judge, and a jury, at the April term of the Edwards Circuit Court, when a verdict was found and a judgment rendered for the defendant.
    A motion for a new trial was denied. The plaintiff filed a bill of exceptions and brings Ms case to this Court, by writ of error. Errors assigned, are the .admission of improper testimony, the refusing to give instructions to the jury, and refusing a motion for a new trial.
    D. Constable, for Pltff in Error.
    The evidence of character of animal, that she was breachy, was calculated to mislead the jury, andmuch more so when the judge intimated his opinion of its bearing to the jury, by saying that it was material Reel v. Reel, 2 Hawks, 63; Sneed v. Creath, 1 Hawks, 309.
    The instruction asked by plaintiff, refused by the Court, was-such as should have been- given. 2 Sup. U. S. Dig., p. 445, Sec. 349; Walton v. Stallings, 4 Dev., 56.
    The new trial should have been granted for the causes assigned in the Court below.
    1st. Because Court admitted improper testimony. Ellis v. Short, 21 Pick., 142; Clark v. Vorce, 19 Wend., 232.
    2d. Because Court refused a legal and proper instruction, and because verdict was contrary to evidence. Wendall v. Safford, 12 N. Hamps., 171; Grimke v. Housman, 1 McMullen, 131; Williams v. Barfield, 9 Serg., 270, Gordon v. Crook, 11 Ill., 142.
    U. F. Linder, for Deft in Error.
   Caton, J.

This action was brought to> recover tire value ©f a mare which belonged t©>the plaintiff. The evidence shows that the mare was in the defendant’s com field. The defendant told one of the witnesses, that in scaring her out of the field he turned Ms coat over Ms head and ran at her, and wished she might break her neck. In jumping the fence she broke her thigh.

Where she jumped the fence it was eight rails high ; in other places the fence was poor. In the opinion of the witnesses the mare was worth from forty to- forty-five dollars. The jury returned a verdict of not guilty. In the course of the trial, one Orr, testified that the mare was breaehy, that she was raised on Ms place “ as a trespassing animaland that he told the plaintiff so when he bought her. The plaintiff requested the Court to withdraw this testimony from the consideration of the jury as irrelevant; which the Court refused to do, saying “ it was. material.” To this the defendant excepted. We are of opinion with the Circuit Court, that this evidence was material., The* gist of this action was carelessness, negligenee or imprudence, on the part of the defendant in driving ©at the mare.

We understand a breaehy horse to. be one, which is in the habit of jumping ordinary fences.. It is manifest that a prudent man, might not hesitate'to drive an animal over a fence which he knew it was in the constant habit of jumping, when he would not tMnk of frightening one,, to attempt such a leap, which he-knew was not unruly. It certainly was not improper to allow the defendant, to show that a prudent man might have driven the mare over the same fence, and this evidence tended to show that fact, and was properly admitted.

An objection was made to the refusal of the Court to give an instruction asked for by the plaintiff, but as the decision of the Court refusing the instruction was not excepted to, it is not before us for examination.

As to whether the defendant acted imprudently in driving the mare out of his field, was a question peculiarly appropriate for the consideration of the jury. It was a subject with which the jurors are probably better acquainted than we are, and we feel no disposition to disturb their finding. We cannot say that they decided erroneously.

The judgment of the Circuit Court must be affirmed with costs.

Judgment affirmed.


text:
    Hamilton Wade, Appellant, v. Nelson Wade and Harvey D. Brown, Appellees.
    appeal from perry.
    A party may lay tie' foundation by his own oath for the introduction of secondary evidence, to prove the contents of a note which has been lost.
    A Court of Equity will not interfere to set off an unliquidated claim, against a judgment, except under special circumstances; though it may interfere to set off one judgment against another, if a party be unable to enforce his judgment at law.
    This was a hill in chancery filed by appellant in the Eranldin Circuit Court, but the judge of that Circuit having been of counsel for one of the parties, the venue was changed to Perry county, where by consent of parties, the cause was heard by S. Breese, Esq., sitting as Judge, and a decree was pronounced dismissing the bill at the cost of complainant, at October term, 1850.
    The bill shows that ¡Nelson Wade, one of the respondents, recovered a j udgment against the complainant on the 3d of September, 1845, in the Franklin Circuit Court, for the sum of $843 75. That before and at the time of the rendition of that judgment, .Nelson Wade was indebted to complainant in the sum of $2121 33, upon a promissory note made on the 14th day of August, 1841, payable twelve months from its date, which still remains unpaid. That after the commencement of the suit against complainant by Nelson Wade, in which judgment was obtained, and, before the judgment was obtained, complainant “searched diligently among his papers and could not find said note for the reason that the same was mislaid. And that since the said trial and judgment, by accident the said note has been found, and can now be produced.” That Nelson Wade does not live in this state, and has no property herein, and unless complainant is permitted to set off the amount due on the note against the judgment in favor of Nelson Wade, he will in all probability lose the same. That after the rendition of the judgment in favor of Nelson Wade, an execution was issued thereon, upon which the lands of complainant were sold, and that H. D. Brown, the other appellee, became the purchaser thereof, with full knowledge of all the facts set out in the bill, and that the bill was read to him before the purchase, and that Brown paid nothing for said lands of his own funds.
    The bill prayed that the amount of this note should be set off against the judgment of Nelson Wade, and for general relief, &c.
    Nelson Wade did not answer. Brown answered, admitting the judgment, the issuing of execution, the sale of the land, the purchase thereof by himself as alleged in the bill, but denies that he paid nothing of his own funds for the land, admits that he had notice of the facts alleged in the bill, but alleges that he bought the judgment in question of Nelson Wade, and that on the th'rieen'-.h of May, 1846,-the same was assigned to him by a written assignment, and that from that time he, Brown, has ybeen the sole and absolute owner of said judgment, and that he never knew that complainant had a claim against Nelson Wade, until the day the land was bought at sheriff’s sale.
    Proof was made of the execution of the note, which was an exhibit in the cause, and also that Nelson Wade was not a resident of the state, nor had he been for six years past, and that it was not known that he had any property within the state.
    Hamilton Wade prayed the appeal, and assigned for error, the dismissing of the bill without granting the relief prayed.

      W. II. Underwood, for Appellant.
    The ground upon which the bill was dismissed in the Court below, was that the complainant should have filed his bill immediately after suit brought against him and before judgment. I do not find any case that goes thus far. In the early case of Gainsborough v. Gifford, 2 Peere Williams, 425-6, no such extreme diligence was required. Nor in the case of Buckmaster v. Grundy, 3 Gil., 631. Courts of Equity will relieve against a judgment at law, where there has been fraud or injustice done, not attributable to the laches or neglect of the defendant. Abrams v. Camp, 3 Scam., 291. To a set off, which, by accident, could not have been presented in the suit at law, or where the defendant has no redress within the jurisdiction, equity will give relief. Simpson v. Hart, 14 John., 64; 6 B. Monroe, 119, 120; Hughes v. McCann’s admr, 3 Bibb, 254, 248; Pond v. Smith, 4 Conn., 302; Lindsay v. Jackson, 2 Paige, 581; Davis v. Tilcson et al., 6 Howard, 114.
    The assignee of a chose in action, as a judgment, is in no better position than his assignor. Chamberlin v. Day, 3 Cowen, 353; Webster v. Wise, 1 Paige, 319; Gay v. Gay, 10 Paige, 376, 377; Scott v. Schrieve, 6 Condsd. R., 664-5; Brashcar v. West, ' 7 Peters, 616; Livingston v. Hubbs, 2 John., 511, The right of the complainant to a set off existed anterior to the obtaining of the judgment, and the supposed assignment thereof And it was out of his power to set off his note on the trial, as it was mislaid, and not lost. Rogers v. Miller, 4 Scam,, 334.
    The plaintiff in the judgment at law, was and is a non-resident, and had no property within the jurisdiction, whereby the only remedy afforded the complainant is by bill in chancery. Lindsay v. Jackson, 2 Paige, 583; Robbins v. Hawley, 1 Monroe, 194; Prior v. Richards’ admr, 4 Bibb, 356.
    R. Wingate, for Appellees.
   Caton, J.

Ho satisfactory reason is shown by this bill, why the complainant did not set off his note in the action at law in which the judgment was obtained against him. The reason which he assigns for not having done so is, that he “searched diligently among his papers and could not find said note, for the reason that the same was mislaid.” If this was not sufficient to lay the foundation for the admission of secondary evidence of the contents of the note, it was certainly in his power, by making a more thorough search to have done so. His own oath was sufficient for this purpose, and he does not pretend that he was <, unable to prove the existence and contents of the note. This is not a case in which it is necessary to prove the destruction of the note, as in Rogers v. Miller, 4 Scam., 333. In the present case the note was made payable to the complainant or his order, was over due at the time of the recovery of the judgment against him, and had not been assigned, so that there was no danger that the maker would be made liable to pay the note a second time. With proper diligence the present complainant might have set off this note in that action; he had the option of doing so. He does not state any circumstance in his bill, which shows that his right to enforce the payment of the note, is not as available now, as it was then. It is alleged that the respondent is not a resident of the state, and that he has not any means from which the amount of the note can be collected, but we have not anything presented to us, which shows that this was not equally the case when the judgment was rendered. The demand sought to be set off against the judgment is unliquidated and open to controversy, and we are asked first to try the suit upon the note and then to set off the amount found to be due, against the judgment. It is not within the ordinary jurisdiction of this Court to try an action of assumpsit upon a note, and then set off the judgment recovered upon it against another judgment, merely because the maker of the note has not available means to satisfy his creditor, and this will not be done unless some special circumstance is presented to justify the proceeding. If the party seeking to make the set off, shall have established his claim at law, we will in accordance with the decision in the case of Buckmaster v. Grundy, in 3 Gilman, 626, set off one judgment against another, if one party is unable to enforce his judgment at law. In the case referred to, other claims were investigated, and the amount ascertained to be due was set off, but the claims so investigated partook of the nature of partnership transactions between the contesting parties, and although they might possibly have been within the jurisdiction of a Court of law, yet they were not inappropriate for the consideration of an equitable forum.

We think the Circuit Court decided correctly in dismissing this bill, and therefore its decree is affirmed with costs.

Decree affirmed.


author: Treat, C. J.

text:
    John Purcell, Pltff in Error v. Ninian T. Steele et al. Defts in Error.
    ERROR TO CRAWFORD.
    A forthcoming bund given by the defendant in an attachment suit, which stipulated that if he “failed to substantiate his claim, shall render up and have forthcoming the said property attached, <Src., is in effect a statutory bond, and is assignable.
    A person claiming the property attached, should interplead, when a jury will enquire into the right of property, and if the finding shall be for the claimant, it will furnish a good excuse for not surrendering the property.
    This was an action, brought in the Crawford Circuit Court by the pltff in error, against the defendants in error, upon a forthcoming bond. The facts of the case arc set out in the opinion of the Court. The plaintiff standing by his demurrer to the plea, the Circuit Court, Harlan, Judge, presiding, at Sept, term, 1850, gave judgment for the defendant, dismissing the suit.
    C. Constable, for Pltff in Error.
    The condition to substantiate claim, though not required by the Statute, does not vitiate the bond, such condition not being illegal ; and the only result is, that, no breach of such condition can he assigned and recovery had on such breach, and it is to be taken as not expressed in the bond. Ho performance, or readiness to perforin such condition can he pleaded in discharge of bond. U. S. Dig. Vol. 1, § 55, p. 435; Hall v. Cushing, 9 Pick., 404; Peters C. C. R. p. 47; 1 Pen., 120; 2 Pen., 500; United States v. Hipkin, 2 Hall’s Am. Law Jour., 80; 1 Gallison, 87; Sanders v. Rives, 3 Stewart, 109.
    Part of condition to this bond is prescribed by the Statute, and is easily divisible and very distinct from that part not prescribed, and we can recover on such prescribed condition after breach. U. S. Dig. Vol. 1, § 62, p. 335; Vroom v. Smith, 2 Green's N. J. R., 479; 7 Monroe, 317; 4 Wash. C. C. R. 620; 1 Gallison C. C., 99; 2 Bailey, (So. Car.) 501.
    U. F. Lestdeb, for Defts in Error.
   Treat, C. J.

Purcell sued out an attachment against Bogard, which was levied on a quantity of corn. Steele and Harness, as principals, with Bishop as surety, executed a forthcoming bond to the Sheriff, the condition of which, after reciting the issuing and levying ofthe attachment, and stating that Steele and Harness claimed to be the owners ofthe corn, is as follows: “Now if the said Ninian J. Steele and Andrew P. Harness fail to substantiate said claim, shall render up and have forthcoming the said property, attached as aforesaid, to answer the judgment which shall be rendered by the court, in the said suit instituted by the said John Purcell against the said Harrison H. Bogard, in the said county of Crawford, then, and in that case, this obligation to become void, otherwise to be and remain in full force and virtue.” Purcell recovered a judgment in the attachment suit; and, as assignee of the Sheriff, brought an action against Steele and Harness on the forthcoming bond. The declaration assigned for breach, that Steele and Harness did not substantiate their claim to the property, and did not surrender the same to the Sheriff to answer the judgment. The defendants pleaded that the corn, when levied on by the Sheriff, was their property. The court overruled a demurrer to the plea, and judgment was entered for the defendants.

It is insisted by the defendants, that the declaration shows no cause of action, and, therefore, that the demurrer was properly overruled, without reference to the character of the plea. They contend, that the bond does not pursue the statute, and is, therefore, not assignable, so as to authorise the plaintiff to sue thereon in his own name. The 9th section of the 9th chapter of the Revised Statutes provides, that the officer serving an attachment, shall retain the -custody of the property attached, unless the person in whose possession the same may be found, shall enter into bond to the officer, conditioned that the property shall be forthcoming to answer the judgment that may be-rendered in-the suit; and the 10th section provides, if the bond be forfeited, that the officer may assign the same to the plaintiff, who may bring an action thereon in his own name. The bond in question complies with the requisitions of the Statute in all respects, except in the addition of the provision that the obligors may substantiate their claim to the property. Butl the insertion of this clause does not vitiate the bond, or change its legal effect. The rights of the parties would be precisely the same, if it was omitted. A bond pursuing the Statute exactly, would imply every thing that is contained in this instrument. The 21st section of the chapter before referred to, authorises any person, other than the defendant in the attachment, to interplead and claim the property attached, and, in such case, the court is required to direct a jury to be empannelled to inquire into the right of property. Under this section, the defendants- might have had their claim to the property investigated before the judgment was rendered against Bogard, or, at least, by interpleading before the judgment was entered, they might have avoided a forfeiture of the bond, until the right of property was determined. They had this right independent of the peculiar provision in the bond. The provision secures them no additional or greater right. It does not mean that the doctrine of the right of property, shall be a condition precedent to the forfeiture of the bond. Uor does it reser ve to the defendants the right to substantiate their claim to the pro¡> erty, in an action on the bond. If they had interpleaded in the attachment suit, and claimed the property, and the right had been ° found in their favor, the finding would have been a good excuse for not surrendering the property, and could have been pleaded in bar of an action in the bond. But, neglecting to interplead, and in that, way substantiate their claim, they were bound to deliver the property to the Sheriff, to answer the judgment recovered against Bogard. The declaration is good, and the plea is no sufficient answer to the breach assigned on the bond. "Whether the defendants may not still put the right of property in issue, in an action of trespass against the Sheriff or the plaintiff, for the seizure of the corn, is another question which does not now arise.

The judgment of the Circuit Court must be reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.


text:
    Moses G. Atwood, Appellant, v Albert G. Caldwell et al., Appellees.
    APPEAL FROM MADISON.
    The laws for the liquidation of the Bank of Illinois, were designed to vest the assignees with authority to sell the real estate of the bank at public or private sale, and they are not bound to sell to the person who first offers to pay the appraised value. And if the assignees exercise the right within a reasonable time and offer to sell, there is then no cause of complaint with their action.
    The bill in question was filed for an injunction against the assignees of the Bank of Illinois, to prevent their selling certain lands, and to enforce a conveyance of title of the same lands to the complainant, plaintiff in error.
    The bill states, that in accordance with the 12th section of an act of the Legislature, passed Feb. 25, 1843, entitled “An act to reduce the public debt,” &c., the Judge of the Madison Circuit Court appointed appraisers to appraise the real estate of the Bank of Illinois, in Madison County. That a majority of said appraisers, appraised on the 16th day of Oct., 1849, Blocks 30, 31, and 32, in Smith’s addition to the city of Alton. That on the 19th of Oct., 1849, complainant tendered said appraisement with $500, (being more than the amount of the appraisement,) of the certificates of said Bank, to defendant, Smith, for himself, and assignees, and demanded • a deed for said Blocks. That said assignees refused to make a deed, and afterwards advertised for sale and struck off said Blocks, to other persons, as purchasers. That complainant gave notice of his rights at the time of last pretended sale. Bill prays an injunction to prevent execution of deeds to any other person than complainant, and that said assignees make complainant a deed of said Blocks.
    The answer of Caldwell et al., assignees, &c., denies that the appraisement was made in compliance with said 12th section of the statute—because not made at the instance of the assignees, but that of complainant, defendant Dow, and one Robert Smith; and because the certificate of surveyor does not give the quantity of land in each Block; states that complainant made no tender personally, but admits that said Smith did make tender as the agent of complainant; denies violation of said statute in refusing to make deed, &c.; states that assignees, about the 30th óf November, 1849, caused an appraisement of said Blocks by two of the appraisers, who appraised the same at $25 per acre; which assignment was returned duly to said assignees ; that said Blocks were advertised and sold at public sale, to wit:
    Block 30, to defendant Ingham, for.....$1589 25
    “ 31, ' “ Dow, “...... 382 50
    “ 32, “ Garbut, “..... 150 75
    Payable in Bank certificates; that deeds are partly made out for such purchasers, &c. The purchasers of the above lots are all made parties to the bill.
    Agreement made in case.
    “ It is agreed between the parties in the above entitled cause, that the appraisement set forth in complainant’s bill, was made at the request of the complainant and not at the instance of the assignees of the Bank. It is also admitted, that the tender was made by complainant to said assignees, as is set forth in said bill.
    Upon this agreement of facts, it was submitted to the Court whether, under the 12th section of the act putting the Bank of Illinois into liquidation—approved Feb. 25th, 1843—the complainant is entitled to a deed from the said assignees for the property mentioned in complainant’s bill.
    Cause heard by agreement on Bill and Answer. Bill dismissed, and Appeal taken by complainant.
    The 12th section of the act putting the bank in liquidation, above referred to, is as follows:

      “ The real estate of said bank shall be appraised by three householders, or a majority of them, on oath, to be appointed by the Judge of the Circuit Court of the county where the real estate may be situated; said real estate, when so appraised, shall be subject to sale, and shall be sold whenever thereafter the appraised value shall be offered for the same; the real estate of the said Bank shall not be sold on execution for less than two-thirds of its appraised value, to be ascertained as aforesaid.”
    Bill heard before Underwood, Judge, at March term, 1850, of" Madison Circuit Court.
    Billings & Parsons, for Appellants.
    Statutes are to receive such a construction as must evidently have been intended by the legislature; and to ascertain this, the Court called upon to give the construction may look to the object in view—the remedy intended to be afforded, and the mischief intended to be remedied. Winslow v. Kimball, 25 Maine, 493; Kilby Bank Petitioners, 23 Pick., 93.
    As to the true construction of the 12th section of the act, “ to reduce the public debt one million of dollars, and to put the . Bank of Ulinois into liquidation, laws of 1842-3. Reference is made to section 10 of said act, and sections 8 and 10 of an act entitled, “ An act to put the Bank of Illinois into liquidation.” Laws 1842-3, p. 27. Also to the ninth section of an act entitled, “An act to diminish the State debt, and put the State Bank in liquidation.” Laws 1842-3, p. 21, Sec. 10, of an act supplemental to an act to reduce the public debt, &c. Laws of 1845, p. 246; Webster et al. v. French et al., 11 Ills., 274-5.
    Davis & Edwards and D. A. Smith, for Appellees.
   Treat, C. J.

We are satisfied with the decree of the Circuit Court. The bill proceeds on the ground, that the assignees have no discretion in disposing of the real estate of the corporation, but are bound to sell the same to the person who first offers to pay the appraised value. We cannot acquiesce in such a construction of the several laws providing for the liquidation of the Bank. It would prevent the assignees from realizing the benefit of any advance upon the appraisement, and might materially lessen the amount which the creditors and stockholders of the institution would otherwise receive. In our opinion, the legislature designed to vest the assignees with authority to sell the real estate of the Bank, either at public or private sale, as they should deem most beneficial to those interested in the settlement of its affairs. The assignees having the right to sell the land in question, at public auction, and having exercised that right within a reasonable time, and thereby afforded the complainant an opportunity to become the purchaser, he has no just cause to complain of their action in the matter.

The decree is affirmed with costs.

Decree affirmed,


text:
    Christian Keaggy, Appellant, v. Andrew Hite, Appellee.
    APPEAL FROM MARION.
    When the record discloses a case in which the jury have manifestly found against the evidence, the verdict will be set aside.
    Accounts cannot be adjusted, nor will a set off be allowed, in an action of trover.
    In trover, if the plaintiff recover, he is entitled to a verdict for the full value of the property converted, at the time of the conversion.
    This was an action in trover "brought by the appellee in the Marion Circuit Court, for the value of a promissory note' for $412, and a mortgage to secure the same, given to one Marshal "Wautland, by appellant, and assigned by Wautland to Hite, which came into the hands of appellant, in the manner set out in the opinion. To the declaration the appellant filed the general issue, and a verdict for $200 was found for appellee.
    The cause was tried before Denning, Judge, and a jury, at August term, 1850. A motion for a new trial was denied. The defendant below prayed the appeal.
    W. B. Scates and T. F. Houts, for Appellant.
    The Court erred in permitting plaintiff below, to ask his own witness for his own declarations and the witness to answer. 1 Greenleaf’s Ev., p. 255, §201; 1 Phil. Ev., 340-1.
    The instruction given for Hite was erroneous, the measure of damages in trover was the value of the property converted. 4 Pick., 467; 17 Pick., 1; 1 Metcalf, 172; 8 Wendell, 508; 8 Pet., 191; 3 Carr and Paine, 344; 2 Hill, 132; 8 Dana, 192; 2 Tidd’s Prac., 872-3. A new trial should have been granted; the verdict is against the evidence; 12 John., 346-7; 9 Cowen, 53-5 & 6; 15 John., 205, 349; 16 John., 159; 1 Hanxp., 199; 1 Yeates, 19; 3 S. & R. Rep., 509; 3 Stephens’ FT. P., 2702; 2 Camp, 5; 1 T. R. Í53.
    J. D. Haynie, for Appellee.
    If a part of a conversation is given, the party calling a witness, as well as the other party, is entitled to have the whole conversation stated. 1 Phil. Ev., 340-1.
    The instruction was, “if the jury believe that the notes in controversy were delivered as a pledge or security for money, yet if there has been an actual conversion by defendant, thejury must find for the plaintiff damages,” &c. This was proper. Any use, misuse, or assumption of property in the goods of another is a conversion; and this, although .a party have legal possession of the property of another, misuser of it is a conversion, and trover will lie. A bailee cannot put property hailed beyond his control; if he does, trover will lie. 1 Chitty’s PI., 154; 6 Ship., 382; 12 N. H., 382; 2 TJ. S. Dig., 879, §122; 16 Vermont, 390; 2 Ü. S. Dig., 876; 1 Chit. PI., 154.
    A verdict will not be set aside on account of an instruction which cannot prejudice the party complaining. 23 Wend., 79; 21 Wend., 354.
    To induce the granting of auSliy trial, there should be strong probable grounds to believe that thxe merits of the case have not been fully and fairly tried, and that injustice has been done. 2 Scam., 348; 7 Miss., 601; 2 Scam., 535; 4 Ship., 200; 3 How. Miss., 219.
   Trumbull, J.

Hite sued Keaggy in trover for a note and mortgage, executed by the latter to one Wautland, and by him assigned to Hite, who delivered the same to Keaggy. Whether the note and mortgage, were delivered to Keaggy as a pledge or security for a debt, or absolutely to be cancelled and accounted for, in a future settlement between the parties, is the main point in controversy.

The only evidence, tending to show that the note and mortgage were delivered to Keaggy as a pledge, is that of a single witness, who' testified as follows: that “she knew they were given up to the defendant, that the reason why plaintiff gave them to defendant, was, that defendant was calling upon plaintiff for money ; that during the conversation she heard something said about security, but did not know what was intended to be secured, but that they were given up as security, and that defendant said at the time, that if upon a final settlement he fell behind anything, he would make it good to the plaintiff.”

This evidence, by itself, leaves it extremely doubtful in what capacity Keaggy got possession of his note and mortgage. While the witness in one part of her testimony says, that “they were given up as security,” it would appear from the statement of the defendant made at the time, that he received them on account of the claim he was endeavoring to collect, and was to account for them on a final -settlement between the parties. Independent of any evidence, the presumption of law would be, that a note was satisfied when it was given up by the holder to the maker.

The case thus left in doubt by the evidence of the plaintiff, is made perfectly clear, by the testimony subsequently introduced by the defendant.

Two witnesses testified, that they were present when the plaintiff demanded the note and mortgage of the defendant; that defendant refused to deliver them up, and requested plaintiff to state how defendant came in possession of them, which plaintiff declined to do; and when asked by defendant, if the note and mortgage had not been given up to him, for what plaintiff owed him on the estate of John Hite, deceased-—-the balance, if anything, was due on final settlement, to be made good by defendant—he admitted that such was the contract.

How the jury with this evidence before them, could return the verdict they did, is matter of surprise. The testimony as it appears in the record, preponderates altogether in favor of the appellant, and though this court is reluctant to set aside a verdict as contrary to evidence, which the judge who presided at the trial has refused to disturb, yet when the record discloses a case in which the jury have found so manifestly against the evidence as in this instance, it would be doing injustice to permit their verdict to stand.

As this question disposes of the case, it is unnecessary to pass upon the propriety of -the instruction given to the jury. It may not, however, be amiss to remark, that the defendant cannot be allowed a set off, nor the accounts between the parties be adjusted, in an action of trover.

The plaintiff, if entitled to recover at all, is entitled to a verdict for the full amount due upon the note and mortgage, at the time of the conversion. Costelyon v. Lansing, 2 Caines’ Cases in Error, 200.

The judgment of the Circuit Court is reversed, and the cause remanded,

-Judgment reversed.


text:
    The People of the State of Illinois, ex relatione, Henry L. Brush, v. Joseph B. Wells, State Trustee of the Illinois and Michigan Canal.
    A feeder of the Illinois and Michigan Canal was constructed in 1838, and passed across the land of B. The act of 1843, under which the banal was transferred to the Board of Trustees, authorized the State Trustee to settle existing claims, for damages arising from the construction of the canal, by issuing certificates of state indebtedness to the claimants. A law of 1841 required all unliquidated claims against the state, for damages growing out of the construction of the canal, to be proved before the State Trustee, and filed with the Secretary of State, before the first of January, 1849. In 1848, B. made application for damages to the State Trustee, who heard the proofs, and made a certificate, stating that B. produced satisfactory proof that he was the owner of the land, and that the same had been injured by the construction of the feeder, in a certain amount. The proof and certificate were filed in the office of the Secretary of State before the first of January, 1849. Held, that the State Trustee, in hearing the proof, and making the certificate, acted under the law of 1841, and not under the act of 1843; and that B. could not, by mandamus, compel him to issue a certificate of state indebtedness. Held, also, if a settlement was designed, it was not so far perfected, as to be binding on the state.
    This was an application for a peremptory mandamus. The facts of the case sufficiently appear in the opinion of the Court.
    This application was made to the Court, in the Third Division, but by consent of parties it was heard and decided in the First Division.
    N. H. Purple, J. C. Champlin, and Glover & Cook, for the Relator.
    Judd & Wilson, for the State Trustee.
   Treat, C. J.

It was made the duty of the Canal Commissioners, by an act passed on the 2d of March, 1887, to “construct a navigable feeder from the best practicable point on Fox River, to the Illinois and Michigan Canal, at the town of Ottawa.” Acts of 1837, p. 41, §8. By the 8th section of that act, and the 16 th section of the “Act to amend the several laws in relation to the Illinois and Michigan Canal,” approved, February 26th, 1839, it was made the duty of the Judge of the Circuit Court of each county, through which the canal passed, to appoint a board of assessors, for the appraisement of all damages, which might arise from the construction of the canal. The assessors were required to make a written report in each case to the Circuit Court, and, if the report was approved by the Court, an order was to be entered directing the commissioners to pay the damages awarded.

The 4th section of the “ Act to amend the several laws in relation to the Dlinois and Michigan Canal,” approved, February 1st, 1840, declares: “It shall be the duty of the commissioners, when any person or persons claim damages that they may have sustained, by the construction of the Illinois and Michigan Canal, to settle with any such person or persons, for the damages they may have received, and pay the same: Provided, if the commissioners are of the opinion the claim is too high, and the claimant will not take a fair compensation, they shall call the appraisers as required in the act to which this is an amendment, and they shall proceed as required in said act.”

By the provisions of the “Act to provide for the completion of the Illinois and Michigan Canal, and for the payment of the Canal debt,” approved, February 21st, 1843, the canal and the unsold lands and lots belonging to the canal, were granted to the “Board of Trustees of the Illinois and Michigan Canal,” as security for the payment of the loan authorized by that act. Two of the trustees were to be appointed by the subscribers to the loan, and the other by. the state. The trustees were to possess all the powers, and perform all the duties imposed on the canal commissioners by previous laws. Trustees were appointed, to whom the canal property was conveyed. The 10th section of that act, after exempting from the operation of the grant to the trustees, the lands and lots previously sold by the canal commissioners, provides, that the state trustee “is hereby authorized and required to settle all accounts due to contractors and others (except for such damages as are hereinafter provided for) by issuing certificates of indebtedness, which, together with the certificates of indebtedness, scrip, and acceptances heretofore issued by the canal commissioners, shall be received by said trustee, or other officer or officers, in payment for said lots and lands, whenever they may be presented for that purpose.” The exception, referred to in this section, embraced the prospective damages of contratas.

The “Act to authorize the bringing of suits against the state trustee of the Illinois and Michigan Canal,” approved, February 28th, 1847, provides, that in cases where individuals or corporations had a right, under the former laws of this state, or any of them, relating to the Illinois and Michigan Canal, to prosecute suits against the board of commissioners of said canal, while said board was in existence, such individuals or corporations shall hereafter have the right to prosecute suits in all competent courts of this state, against the “State trustee of the Illinois and Michigan Canal, by that name and style,” and “judgments obtained against said trustee shall be of the same nature and have the same effect as judgments heretofore rendered against s'aid board of commissioners.”

The 1st and 2d sections of the “Act to limit the time to bring claims against the State of Illinois,” approved, March 1st, 1847, are as follows: “Sec. 1. That all persons having unliquidated claims against the state of Illinois, from any cause whatever, shall make out all the vouchers, and present the claim, together with his own affidavit of the correctness of the same, previous to the first" day of January, eighteen hundred and forty-nine, and have the same filed in the office of the Secretary of State, so that future legislatures may know what unliquidated claims do exist against the state, and the grounds upon which they are founded.” “Sec. 2. The unliquidated claims arising from the canal, shall all be proved up by witnesses, before the state trustee on said canal, which shall embrace all the testimony relating to said unliquidated claims, and no further testimony shall be allowed to be brought in to substantiate said unliquidated claims, after they are once filed as above.” By the 3d section, all unliquidated claims growing out of the internal improvement system and other causes, are required to be proved before the Auditor of Public Accounts, and filed with the Secretary of State. By the 4th section, all unliquidated claims against the state, that are not so proved and filed, before the 1st of January, 1849, are barred. The 5th section provides, that “the person hereby empowered to hear testimony, shall certify all proceedings had before him, under his hand.”

In May, 1837, Henry L. Brush became seized in fee simple of one undivided half of the east half of the south-east quarter of section 2, in township 33 north, range 3 east, in Lasalle county, containing eighty acres. The Fox River feeder, which was constructed in 1838, passes across this tract of land.

In December, 1848, Brush presented his claim for damages to ithe state trustee, when the following proceedings were had:

“ Application of Henry L. Bush for damages done by the Fox River feeder of the Illinois and Michigan Canal, to the undivided half of the east half of the south-east quarter of section two, (2,) town thirty-three, (33,) north, range three, (3,) east, 3d P. M. The said Brush exhibited to me sacisfactory evidence of his title to said tract, being the certificate of the Register of the land office, of the entry of said tract by John Bascom, and the deed of said Bascom to him. Henry L. Brush sworn, says, that the Fox River feeder of the Illinois and Michigan Canal runs diagonally across the said tract of land; that about thirty acres of the eighty lies on the north side of the feeder, and the balance, about fifty acre's, on the south side; that the land where the feeder crosses said tract is underlaid with a strata of coal, from eighteen inches to two feet in thickness; that witness has been informed, and has no doubt of the truth of the information, that the coal found in the prism of the feeder was taken out, by or under the direction of the agents of the State, and sold for the benefit of the canal fund; that the coal upon an acre of said tract, will not vary or fall short of a hundred thousand bushels; that the coal in the ground is worth, at least, the sum of a cent and a half per bushel; that much of the coal has been sold by this affiant, for two cents per bushel in the ground; that the coal so sold lay on the north side of the feeder, and the mining of it was and is rendered more difficult, in consequence of the construction of the feeder, by reason of the water being dammed up in the land, and continually leaking through the ground from the feeder; that about two and one-half acres of the coal has been either actually used by the feeder and its banks, or rendered useless or valueless, by reason of earth taken from the prism of the feeder, having been piled up on both sides of said feeder; that the said undivided half of said eighty is also injured by the construction of said feeder, by reason of its separating said tract into two parts, rendering the north part of comparatively little value, and by reason also of the large quantity of surplus earth placed along its banks; that the feeder, not being navigable, is of no benefit whatever to the land; that the feeder aside from the coal is of, at least, one thousand dollars damage to the said forty acres, making an aggregate damage to said part of land of, at least, four thousand seven hundred and fifty dollars. Hestet L. Beush.”

Subscribed and sworn to before me, this 20th day of December, A. D. 1848. Charles Oakley, State Trustee.

John V. A. Hoes sworn, says, that the statements and facts set forth in the above affidavit of Henry L. Brush, are true, to the best of his knowledge, information and belief.

John V. A. Hoes.”

Subscribed and sworn to before me, this 20th day of December, A. D. 1848. Charles Oakley, State Trustee.

“ State of Illinois, ) q , La Salle County, f

I, Charles Oakley, State Trustee of the Illinois and Michigan Canal, do hereby certify that on the 20th day of December, 1848, the above named Henry L. Brush, claimant, appeared before me and adduced his title papers, and satisfactory evidence that he was and is the owner of the said tract of land, and also satisfactory proof that the said land had been injured, by the construction of said feeder, in the sum of four thousand and seven hundred and fifty dollars.

Charles Oakley, State Trustee.

These proceedings were filed in the office of the Secretary of State, before the 1st of January, 1849.

During the June term, 1850, Brush presented a petition to this Court, setting forth the foregoing facts, and alleging that his claim for damages was settled and adjusted by the former State Trustee, under and by virtue of the 10th section of the act of February 21, 1843 ; that said trustee promised to issue a certificate of indebtedness for the amount of the claim, but died without doing it; that the present State Trustee refuses to recognize the settlement, and petitioner therefore prays that he may be compelled by mandamus, to issue a certificate of indebtedness. He also makes the following affidavit a part of his petition.

“ John V. A. Hoes sworn, says, that he was present at the taking of the proof and settlement of the claim of the relator, by the said Charles Oakley, on the 20th day of December, A. D. 1848, referred to in the petition herein; that George H. Norris, surveyor of La Salle county, Joseph H. Wagoner, deputy surveyor, William Reddick, and this affiant were produced as witnesses by the relator, in support of his said claim; that the said affidavit of the said relator filed herein, does not embody all of the testimony adduced by the relator, in support of his said claim; that the material facts set forth in the said affidavit of the said relator, in support of his said claim, were proven by one or all of the said witnesses above named; that .the affidavit of the relator was not intended to embrace the proof submitted, but only a statement of the claim, and the grounds upon which it was based, to be filed in the office of the Secretary of State, to avoid the running of the statute of limitations of March 1, 1847, against him; that the relator regarded his claim as settled and liquidated by said Oakley, by his said certificate, and by his said verbal promise to pay the amount on his return from Springfield, made in the hearing of this affiant, at the time of signing said certificate. Jons Y. A. Hoes.”

Subscribed and sworn to before me.

Philo Lindley, CVh La Salle Oir. Court.

An alternative mandamus was issued and served on the State Trustee, who appeared and entered a motion to quash the same.

Without undertaking at this time to determine the question, whether the act of the 1st of March, 1847, did, by necessary implication, take away the authority of the State Trustee, to settle claims for damages growing out of the construction of the canal, and issue certificates of indebtedness in payment therefor— and we should, as at present advised, be strongly inclined to hold the affirmative, if the result of this case was to depend on the decision of that question—we are well satisfied, upon the case made by the relator, that there has been no adjustment of his claim that is binding on the State, or the present State Trustee. It seems very clear to us, that the former State Trustee, in entertaining the application of the relator, and in hearing the proof adduced by him, was acting solely under the provisions of the act of March 1st, 1847; and not by virtue of any authority conferred by the 10th section of the act of Eebruary 21st, 1843, to settle claims of this character, and issue certificates of indebtedness in liquidation thereof. We entertain no doubt, but that he heard the proof under the 2nd section of the act of March 1st, 1847, and certified the same under the 5th section, for the information and action of the Legislature. There is nothing on the face of the proceedings, or in the acts of the parties, to indicate that the certificate in question was regarded as a final settlement of the claim, which was to conclude the State, or the Trustee. If the Trustee intended to adjust the claim, why was not the certificate of indebtedness then issued, and a receipt taken from the relator for the amount? If a settlement was designed, and anything interfered to prevent its consummation at the time, it may fairly be inferred, that the intention would have been manifested, by some unequivocal declaration to that effect in the certificate delivered to the relator. If the relator understood it to be a final adjustment of Ms claim, for the satisfaction of which he was entiled to receive from the Trustee a certificate of indebtedness, why did he forward the proceedings to the Secretary of State? In such case, the filing of the papers with that officer was wholly unnecessary, and not required by any existing law. Indeed, his office was not the proper depository for them. They properly belonged to the office of the state trustee, and should have been placed on the files of that office. The limitation contained in the act of March 1st, 1847, did not apply to claims of this character, unless that act, by necessary implication, repealed so much of the 10th section of the act of February 21st, 1843, as conferred power on the state trustee to make settlements. The certificate annexed to the proof is but a statement of the trustee, that the relator exhibited satisfactory evidence that he was the owner of the land, and as such had sustained damages to a certain amount by the construction of the feeder. It contains no intimation that he had settled the claim, and agreed to issue a certificate of indebtedness in discharge thereof. The fact that he admitted the proof to be satisfactory, does not, of itself, show that he was adjusting the claim. It can only be considered as an expression of opinion by the trustee, that the relator was entitled to receive from the state a certain amount in the way of damages; and not ns an undertaking on his part to pay the same. There is, in •addition, very strong evidence on the face of the proceedings, that the trustee did not consider himself as concluding the state by his action in the matter. While the relator in his application only claimed to be the owner of an undivided half of the land, the .estimate of damages covers the entire injury to the whole tract. We cannot avoid the conclusion, that the claim would hwe been more closely scrutinized, and the certificate more guarded, and pointed in its terms, if the trustee had regarded his action as obligatory on the state. And yet, it is seriously insisted by the relator, that he is entitled, by force of this certificate, to recover from the canal fund, on account of damages sustained by him as the owner of a moiety of the land, the sum of $4,750, when, in point of fact, and upon his own showing, under oath, before the former trustee, that amount embraced the aggregate of damages to the whole tract. The evidence fails altogether to convince us, that there -was any adjustment of the relator’s claim, that can be enforced against the present trustee. On the other hand, we cannot look upon the action of the former trustee in any other light, than as a hearing of the proof produced by the relator in support of his claim, and a certifying of the same for the consideration of the legislature.

But, if a settlement was ever designed, the case fails to show that it was so far perfected, as to be binding on the state, or the trustee. The statute prescribed a particular mode, in which a settlement was to be made. It was to be done, “by issuing certificates of indebtedness” to the claimant. The issuing of a certificate of indebtedness was a necessary part of a valid settlement. Without it, a settlement would be essentially incomplete and imperfect. No rights could vest in the claimant, until the settlement was consummated by the delivery of the certificate of indebtedness. Up to that time, the negotiation would be open and unconcluded, and it would be in the power of the trustee to break it off entirely, and refuse to proceed further in the matter.

In the opinion of the Court, the present state trustee was acting strictly in the line of his official duty, in declining to regard the action of his predecessor as a settlement of the claim, and issue a certificate of indebtedness to the relator. The latter must seek relief at the hands of the legislature.

The motion of the defendant will be sustained, and the pro ceeding dismissed, with costs against the relator.

Petition denied.


text:
    John Lee, Pltff in Error, v. Stephen Abrams, Deft in Error.
    ERROR TO SCOTT.
    In an action of account under our statute, the Court is not authorized to enter judgment on the declaration for the amount claimed therein, or for any amount; nor is the plaintiff limited in his recovery by the amount stated in it. The judgment upon the declaration is interlocutory, that the defendant account, and the final judgment is upon the report of the auditors.
    In pleading to this action, the better rule is to require the defendant to file before the Court in the first instance, every defence which shows that he is not then liable to account.
    The Circuit Court has the right to approve or disapprove of the report of the auditors, and to re-commit the case to them.
    After the interlocutory judgment to account is rendered, a party cannot discharge himself from accounting, by proof that he has before fully accounted; or that he is not indebted, but he may show by his account that the plaintiff has been paid, or that he owes him nothing; but he cannot allege a fact and thereby avoid rendering an account.
    To sustain the plea of pie tie computavit, the pleader must show an actual accounting, and a balance struck no matter which way, between the parties. To sustain the issue of nothing in arrear, the party must show by an exhibition of the accounts that nothing is due the plaintiff.
    By omitting to file the pica of plate computavit, the defendant loses the benefit of a settlement which may have been made, and must account anew before the auditors. The auditors are not bound by any previous accounting of the parties, though if parties had agreed upon particular items, or if rests had been made in a running account and balances struck, but no final accounting had taken place, the auditors would be concluded by the balances as struck by the parties, and to carry unpaid balances into the future account.
    Although it is not competent for a party to prove before the auditors, that he has had a final settlement, and is therefore not bound to account; yet he may prove a payment on account, which should be deducted from any sum due the plaintiff.
    A plea of payment may be interposed before auditors; but formal pleadings are not advisable.
    A judgment of quod computet does not determine that all the allegations in a declaration are true; beyond a liability to account, nothing is determined, nor is anything except this admitted, by suffering such a judgment to go against a party.

      Abrams sued Lee in an action of account, alleging in his declaration, that they had been mercantile partners, that at the dissolution, Abrams left Lee in possession of all the assets of the firm, which consisted of goods, wares, &c., money, and produce to a large amount, and a great number of claims, consisting of notes, bills of exchange and books of account. That Abrams sold all his interest in the goods then in the store, and to the accounts unpaid on the store books for goods actually sold, and agreed to and did receive §900 00 for his interest in said goods and accounts, and a release of all the accounts and claims, that said firm had against Abrams individually. That in addition to said goods and accounts, the said Lee received at the said dissolution, a large sum of money on hand, and a large amount of produce, and cash notes, and bills receivable. That the agreement of said Abrams and Lee at said dissolution was, that Lee should collect said demands and sell said produce, and render an account of sales, and an account of said money on hand, and the sums collected to the said Abrams, and to pay the one-half thereof to him, so soon as said sales could be effected and collections made. Avers that Lee has sold all the produce, and collected the demands, to the amount of §5,000 00, but that Lee refuses to account to Abrams or to pay him his half, &c. Concludes with a prayer for an account, &c.
    At the appearance term, Lee filed two pleas, one of which was dismissed on demurrer, the other sustained. The plea sustained was to the effect that the §900, referred to in the declaration, was in full of all the right, title, and interest of Abrams of, in and to the effects of the late firm. Lee afterwards withdrew this plea, and gave notice that he should rely upon it, in defence before the auditors. Interlocutory order of quod computet was then made, and auditors apjtointed. The parties rendered their accounts and appeared before the auditors with their witnesses. Lee by his counsel filed the same plea, previously filed before the Court, Abrams objecting thereto, no issue of law or fact was taken on the plea.
    The auditors reported that Lee contracted with his partner to buy him out entirely, and that if Abrams reserved anything, the reservation was not expressed in the contract, and that Lee owed Abrams nothing.
    The Circuit Court set aside this report of the auditors and overruled a motion for Abrams, for judgment for §2,500 00, and again referred the case to the same auditors, to state the accounts according to the demands of the declaration in this case, as to the indebtedness of the defendant to the plaintiff, for the money on hand and the account of produce and cash notes, and bills receivable, received on the dissolution of the partnership, not being a part otj or included in the goods in the store, nor the accounts unpaid on the store books, for goods actually sold by the parties before their dissolution.
    At the same term of the Circuit Court, Lee filed two special pleas, one similar to that above referred to, and the other that he had fully accounted before the auditors, and moved for a rule upon plaintiff to reply. The Court refused the rule and struck these pleas from the files.
    Afterwards two of the auditors re-stated the account, with reference to the restricted instructions of the Court, finding that the items referred to in the declaration as excepted to, amounted to §850 00, and that Lee had paid Abrams §425 00 for the one-half of §900, and that according to the claims of the declaration, Lee owed Abrams nothing.
    On the coming in of this report, on motion of Abrams, the Court struck out so much of it as surplusage, as stated that Lee was entitled to a credit of $425, and gave judgment against Lee for that sum.
    Cause heard before Woodson, Judge, at September term, 1850. Lee appealed to this Court, and by agreement both parties assigned errors. Lee assigned for error, the setting aside the first report of the auditors and re-referring the cause to them. In striking his pleas in bar from the file. In not rendering final judgment in favor of Lee on the first report of the auditors. And in entering a judgment in favor of Abrams for $425, when it appeared from the report of two of the auditors that Lee was not indebted to Abrams in any amount. Abrams assigns for error, the overruling of his motion for a judgment for the sum claimed in the declaratien, after overruling the first report of the auditors. The sending of the case back to the auditors without the request of the parties, instead of giving Abrams a judgment for the half of five thousand dollars claimed by his declaration.
    D. A. Smith, for Pltff in Error.

      The action of account is so rare in the proceedings of our courts, although allowed by statute, I think it not amiss to direct the attention of the Court to 1 Bacon’s Ab., 43; Greenleaf’s Ev., Tit. Account. As to judgment quod computet and practice in account. 1 Bacon’s Ab., 52, 53, 54; 2 Greenleaf's Ev., Tit. Acc.
    In a decree to account, both parties are actors, and the party • to whom a balance is due is entitled to final decree for such balance. 3 Atkyns, 692; 1 P. Williams, 263. Under our statute, title Accounts, §10, both parties are actors and “ the auditors or a majority of them, shall liquidate and adjust the accounts, and state the balance and to whom due.”
    I suppose that Lee had the right to have his pleas tried, unless it should be answered that that was a matter in the mere discretion of the Court. This right especially applies to the plea of phne computavit before auditors, which is a good plea. 2 Green-leaf’s Ev., p. 28, note at bottom of page.
    M. McConnell, for Deft in Error.
    Defendant in error claims, that the plea filed before the auditors, was a plea in bar, which should have been filed before the Court, and tried by a jury. That after a judgment declaring that defendant should account, he could not go behind the judgment and deny before the auditors that he was bound to account. That by filing said improper plea before the auditors, defendant refused to obey the interlocutory order of the Circuit Court, and thereby the plaintiff became entitled to have the Court make the interlocutory a final judgment in favor of the plaintiff, for the sum claimed by his declaration. Godfrey v. Saunders, 2 Wilson, 90 to 117 inclusive; 7th section R. S. in relation to the action of account.
    If this Court should be of opinion that the Circuit Court had power, after overruling the plea filed before the auditors, and setting aside their report made thereon, to re-commit the cause to the auditors, to be considered and reported upon by them, then the Court had power and authority to give the judgment it did give,-and to disregard that portion of the report of the auditors, wherein they depart from the questions referred to them, and disobey the order of the Court under which they were then adjudicating.
   Trumbull, J.

Abrams sued Lee in account alleging in his declaration that they had been mercantile partners; chat the partnership was dissolved; that he, Abrams/for $900 which had been paid him, sold to Lee all his interest in the store goods, and accounts for goods sold, and that by agreement of parties, there was reserved from the sale a large amount of produce, money, bills receivable, and cash notes, for which Lee was to render an account.

Lee having appeared to the action, there was judgment by nil dicet that he account, and auditors were appointed to take and state the account between the parties. Both parties appeared before the auditors, and Lee filed a plea, alleging that the $900, admitted by the plaintiff in his declaration to have been received, was in fall of all his interest in the partnership.

The plaintiff objected to the filing of this plea and no issue was taken upon it, but the parties produced their respective accounts and were examined on oath. Other witnesses were also examined, and the auditors made an elaborate report setting forth the dealings of the parties from the commencement of the partnership to its dissolution, and showing that the fair value of each partner’s interest in the concern at the time of dissolution was about $900. They conclude their report by awarding that the defendant had “fully accounted to his said co-partner as alleged in his plea.”

Upon the coming in of the report, the plaintiff moved to set the same aside; that the plea filed before the auditors be stricken from the files, and for final judgment against the defendant for one-half of five thousand dollars, the amount claimed in the declaration. The Court set the report aside, struck the plea from the files, refused to enter final judgment as asked, and recommitted the cause to the auditors with directions to audit and state an account according to the demands of the declaration. Upon a second examination of the parties and their witnesses, the auditors stated the account between the parties showing that the plaintiff’s interest in the partnership property, exclusive of the goods in the store and unpaid accounts upon the store books for goods sold, amounted to $425, and that he had received a like amount from the defendant on account thereof, being part of the $900 agreed to be paid at the time of dissolution. They accordingly reported that the defendant was not indebted to the plain- ■ tiff. On this report, the Courtnpon plaintiff’s motion,.gave judgment in his favor for $425.

By agreement both parties have assigned errors in this Court,

We will first dispose of the error assigned by the appellee, - which is, that the Court erred in refusing to enter judgment ■ upon the first report Of the auditors, for the half of five thousand dollars demanded by the;plaintiff in his declaration, and in re-committing the case to the auditors.

There is no foundation for this assignment of error, and to have entered the judgment demanded would have been most manifestly unjust. The plaintiff in his account before the auditors only claimed a balance in his favor of $1,492 25, and to have given him a judgment'under such circumstances for $2,500 would have been palpably erroneous, as well as unjust.

The statute, in case the defendant refuses'to account before the auditors, authorizes them to receive a statement of the account from the plaintiff, and award to him the whole sum he claim's to be due. B. S., ch. 2, § 8. In no event would the Court be authorized to enter judgment for the amount claimed in the declaration, ’or for any amount upon the declaration; nor is the plaintiff limited in his recovery to the amount stated in his declaration. . 1 Bac. Ab., title accbmpt Gr.; Gratz v. Philips, 5 Binney, 564.

The judgment upon the declaration is interlocutory, that the defendant account, and the final judgment is upon the report of the auditors. Assuming for the present, that the Circuit Court committed no error in setting aside the first report of the auditors, it certainly had the power after the report was set aside to re-commit the case to them. The case of Spencer v. Usher, 2 Day, 116, is a direct authority to this point.

The appellant complains that the Court erred in setting aside the first report of the auditors, in striking his plea from the files, and in rendering the judgment for the plaintiff upon -the last report.

In disposing of these assignments of error, it becomés necessary -to enquire somewhat into the nature of this action. The ele'mentary books'which treat of-the- action of account, • ahd almost every reported case of account, inform -us'that fit is a,n action "seldom brought. In England it sé'ems to 'have fallón, 'almost ' entirely into disuse,'and although e'xpiessly authorized by -Our ' Statute,'a case is ’seldom to be metwith'in" our courts; nor is-it surprising that the action should have become nearly obsolete, when the obstacles and delays incident to its prosecution are considered.

As to the pleadings in the action, and what should be pleaded in bar before the Court, and what may be pleaded before the auditors, there is much confusion in the books.

The authorities all agree, that such defences as deny the character in which the defendant is sued, or his liability at any time to account, must be pleaded before the Court and cannot be insisted upon before the auditors. It is also laid down as a rule by some authorities, that all defences which admit that the defendant was once liable to account, but go in his discharge, must be insisted upon before the auditors and cannot be pleaded in bar of the action. 1 Comyn’s Dig., tit. accompt E.; 1 Bac. Ab., tit accompt E. and F. The difficulty arises in the application of these rules. It is said in Bacon, that “ Plene compu■tavit, and a release, are the only pleas which admit the plaintiff to be accountable, that can be pleaded in bar to the action; and these are allowed because they are total extinctions of the right of action.” This is the rule laid down in the case of Godfrey v. Saunders, 2 Wilson, 114.

In another paragraph in Bacon under the same title, it is said that an award may be pleaded in bar.

In the case of Bishop v. Baldwin, 14 Verm., 145, it was held, that if the party was once liable to account, all defences must be pleaded before the auditors, except plene compuiwvit, release, arbitrament and award, former recovery, accord and satisfaction, and the statute of limitations.

In this confusion of authorities we feel at liberty to adopt that rule which appears to us most conducive to the ends of justice, and in so doing, we prefer following the most liberal rule as to the allowance of pleas in bar before the Court, and for this reason: To require a party to plead a matter in discharge before the auditors, is at last but to bring the plea before the Court; for if an issue either of law or fact is taken upon it, the auditors cannot dispose of the question, but must refer it to the Court and await its determination before proceeding to state the account. Bac. Ab., tit. accompt F.; Crousillot v. McCall, 5 Binney, 432.

This is allowing the defendant to work in a circle and to protract the case to an indefinite period, and is probably one reason why the action has so generally and justly fallen into disuse. The better rule, undoubtedly," is to require the defendant to file before the Court in the first instance every defence, which shows that he id not then liable to account to the plaintiff, whether it be that he never was so liable, or that some act has been done-which has discharged him from that liability, admitting that it once existed.

The plea filed by the defendant in this case before the auditors was of this character. An issue upon it, if found in Ms favor, would have been decisive of the case, and no judgment to account could have been rendered against Mm. The plea was therefore properly stricken from the files, when attempted to be made before the auditors, after the judgment of quod computet had been entered.

The Circuit Court undoubtedly had the right in the- exereiseof a sound discretion,' to approve or disapprove the first report of the auditors. The statute declares, that “if such report shall be approved by the Court, the Court shall render judgment for the amount ascertained to be due.” Why .say, if the report shall he approved by the Court, if the Court has no power over it, but is bound to enter up judgment at all events as the auditors shall report? The Court may not have the power to remodel or change the report so as to alter the result, any more than it would have to alter the verdict of a jury, but it is certainly within its province to approve or disapprove it. Such is more-ever the well settled practice. Spencer v. Usher, 2 Day, 116; Smith v. Brush, 11 Conn., 359.

The only remaining question, is as to the correctness of the judgment as entered. To determine this, it becomes necessary to inquire as to the effect of the judgment, quod computet, and how far a defendant who has suffered such a judgment to go against him, is precluded from availing himself of a defence which he might have had the advantage of, by filing a proper plea in bar before the Court.

The judgment to account, as before remarked, is merely interlocutory. It establishes nothing, except the defendant’s liability to account. This he cannot afterwards deny before the auditors, nor can he discharge himself from rendering an account, by proof that he has before fully accounted, or of any other fact which shows that he is not then indebted to the plaintiff! ' He may show by his account that the plaintiff has been fully paid, or that he owes him nothing, but he is bound to show it in that way, and cannot allege a fact and thereby escape from rendering an account. By filing the plea of plene computavit before the Court, the defendant would, if the issue was found in his favor, be entitled to a judgment against the plaintiff for costs, and the plaintiff would be driven to seek redress in another form of action, although the proof should show, that a large sum had been admitted to be due him upon such accounting.

The difference between the proof necessary to sustain the plea of plene computavit on the part of the defendant, and that which is requisite to sustain the issue of nothing in arrear, is this: In the former case, the defendant must show an actual settlement or accounting between the parties, and a balance struck, it matters not in favor of which party, while in the latter case, he must show by an exhibition of the accounts, that nothing is due the plaintiff. Pickett v. Pearsons, 17 Verm. 470.

By omitting to file the plea of plene computavit, the defendant loses the benefit of a settlement which may have been made, and is compelled to account anew before the auditors. They are not bound by the accounting which the parties may have had, though if the parties had agreed upon particular items of the account, or if rests had been made in a running account at particular periods and balances struck, but no final accounting of all the dealings of the parties had taken place, the auditors would no doubt be concluded by the balances as struck by the parties; and it would be their duty, if such balances remained unpaid, to carry them into the future account. Smith v. Brush, before cited; also 16 Yerm. 169. So in this case, although it was not competent for Lee to prove before the auditors, that he had a final settlement with Abrams, and thereby discharge himself from his liability to account, yet he was at liberty to prove as he did, that he had paid Abrams $900 since the dissolution; and when the auditors found upon a statement of the accounts of the parties, that part of this $900 was paid on account of the plaintiff’s interest in the matters about which the defendant was adjudged to account, it was their duty to deduct such part from the sum due the plaintiff. They made such deduction, and showed by a statement of the accounts and their report, that nothing was due the plaintiff. The Court, however, disregarding the credits allowed the defendant, gave judgment against him for $425. In this we think there was error.

The judgment, quod computet, did not determine that the $900 mentioned in the declaration was paid on account of the goods in the store, and the accounts on the store books for goods sold. The defendant admitted nothing upon that subject by suffering such a judgment to go against him. The rights of the parties were precisely the same, as if the declaration had been silent upon the subject of the sale of the store goods and accounts to the defendant. That part of the declaration was surplusage, and really had nothing to do with the case. It was surely competent for the defendant, when called upon, to account for certain money, produce, bills and notes in which the plaintiff had an interest, to show that the plaintiff had received all that he was entitled to; and it would be strange indeed, if the defendant was to be precluded from showing that fact, because the plaintiff had thought proper to.insert in his declaration a matter that had no business there. The authorities all agree, that the plea of payment may be interposed before the auditors, and that it cannot be pleaded in bar before the Court, unless the payment has been received in satisfaction, when it would amount to a settlement of the account. In this case it was not allowable for the defendant to plead before the auditors, that the $900 paid the plaintiff, was received by him in full discharge and satisfaction of his interest in the money, produce and bills, and thereby avoid accounting in reference to those matters; but he was obliged to account, and when he did so, was entitled to claim credit for all money that he could show that he had paid the plaintiff, whether it was paid upon a final settlement between the parties, or without any settlement. By omitting to plead the receipt of money by the plaintiff, in satisfaction of his interest in the subject matter of the account, the defendant lost the benefit of the purchase or settlement, if any had been made, but he did not lose the benefit of the money he had paid. The plaintiff cannot be permitted to say to the defendant in one breath, you must account to me for my interest in certain property, and in the next, refuse the defendant credit for any money he may have paid, because it was received by the plaintiff in discharge and satisfaction of his interest in such property. The case will be better understood, by laying entirely out of view what is said in the declaration, about a sale of the store goods and accounts to the defendant for $900, for it is this allegation in the declaration, which is mere surplusage, that seems to have embarrassed the case. The case then is this: The defendant is called upon to account for certain produce, &c. He omits to plead a matter before the Court which, if true, would have discharged him from rendering such account, and thereupon judgment, quod computet, passes against him. In rendering his account before the auditors, he claims a credit for $900, which he shows that he has paid the plaintiff. This he certainly has the right to do, and this is the whole case on the part of the defendant. The plaintiff, however, says you paid me this $900 for something else, and the question is then for the first time raised by the plaintiff, as to what account the $900 was received upon. The auditors inquire into this fact, and find that part of it, was paid on account of the plaintiff’s interest in the property about which the account is sought, and upon giving the defendant credit for that part, they find that the defendant is not in arrear. When the case is viewed in this light, which is really the whole of this branch of it, no one can doubt, that the auditors properly gave the defendant credit for so much of the $900, as properly applied tó the matters for which he was adjudged to account. In this case no formal plea was filed nor was it necessary. The defendant, in the statement of the accounts, was entitled to credit for all payments he had made on account of the matters about which he was sued, without filing a plea for that purpose. Had such a plea been filed and issue taken upon it, the issue, according to the authorities, must have been referred to the Court for trial. The better practice would seem to be for the parties, in stating their accounts before the auditors, not to make up formal pleadings, otherwise the proceedings in this action may become interminable.

The judgment of the Circuit Court is reversed, and in accordance with the stipulation of the parties, a judgment will be entered in this Court against the appellee for the costs of this and the Circuit Court.

Judgment reversed.


text:
    John Williams et al., Exrs of George Trotter, deceased, Pltffs in Error, v. Eli C. Blankenship et al., Admrs of Archibald Trailor, deceased, Defts in Error.
    ERROR TO SANGAMON.
    A probate justice of the peace, when acting in that capacity, must affix the seal of that court to the process issued by him; when acting as.an ordinary justice, be is governed by the rules applicable to proceedings before such officer.
    Justices of the peace, in actions by or against executors or administrators, have only jurisdiction to the amount of twenty dollars. Consent cannot confer jurisdiction.
    The opinion of the Court contains a statement of the case. The judgment appealed from was rendered by Davis, Judge, at the January term, 1850, of the Sangamon Circuit Court.
    Lincoln & Herndon for Pltffs in Error.
    Justices of the peace have jurisdiction only where the statute gives it, and as against executors or administrators, where the claim falls below twenty dollars. R. S., p. 316, § 11; 1 Scam., 249; 3 Gilman, 286; 5 Pike, 385; R. L. of 1833, p. 415.
    This judgment was for fifty dollars, therefore, the court below had no jurisdiction, and the judgment is void. 1 Scam., 249; 3 Gilman, 286 ; 1 Scam., 237.
    S. T. Logan for Defts in Error.
   Treat, C. J.

The administrators of Trailor brought a suit against the executors of Trotter. The process was in the prescribed form of a justice’s summons, and was subscribed “ Thomas Moffett, Pro. Justice Peace. L. S.” After a hearing of the parties, he rendered a judgment in favor of the administrators, for $43 18. He kept a separate docket for the entry of suits before him as a justice of the peace, in which the proceedings and judgment in this case were entered. He supposed that he had jurisdiction of the action as an ordinary justice of the peace, and considered himself as acting in that capacity. A citation subsequently issued out of the county court, requiring the executors to show cause why they should not pay the judgment. They appeared- and moved to dismiss the proceeding, because the justice had no authority to render the judgment. The county court refused the motion, and made an order directing the executors to pay the judgment. They appealed to the Circuit Court, and that Court, on an agreed state of facts, as before set forth, affirmed the order of the county court. The executors assign that decision for error.

The only question in the case is, whether the officer rendering the judgment had jurisdiction of the action; and that depends altogether on the fact, in what capacity he was acting. If in the exercise of his functions as judge of the probate court, his right to hear the case and enter the judgment cannot be questioned; but, if in the character of a justice of the peace, there was an excess of jurisdiction, and the judgment is a nullity. It was decided in the case of Dunlap v. Ennis, 3 Gilman, 286, that the powers of a probate justice are of a two-fold character; first, he is to perform the duties pertaining to the probate court, and when acting in that capacity he must affix the seal of that court to the process issued by him, or his private seal, where no public seal has been provided; second, he is vested with the jurisdiction of justices of the peace in civil cases, and when exercising these powers, he is to be governed by the rules applicable to proceedings before such officers. Applying the principle of that decision to this case, it is manifest that the officer was not acting in the capacity of judge of the probate court, but was acting strictly in the character of a justice of the peace. The seal of the probate court was not attached to the process, and the proceedings were entered in the docket kept by him as a justice of the peace. Besides, he considered himself as engaged in the discharge of duties properly belonging to an ordinary justice. There is. nothing in the case to indicate that he was exercising any authority vested in him as judge of the probate court.

The only remaining inquiry is, had he jurisdiction of the case as a justice of the peace. The statute, after conferring jurisdiction in general terms on justices of the peace, in all actions for the recovery of debts and demands, in which the amount claimed does not exceed one hundred dollars, and for which debt or assumpsit will lie, declares that they shall also have jurisdiction, “ in all actions in which an executor or administrator is plaintiff, or for property purchased at an executor’s or administrator’s sale, where the amount claimed doés not exceed one hundred dollars;” and “ in all actions in which an executor or administrator is defendant, where the amount claimed does not exceed twenty dollars.” R. S., ch. 59, § 17. If these two clauses had been left- out of the statute, the preceding provisions might he construed-as conferring jurisdiction on justices of the peace, in actions by or against executors or administrators, to the extent of one hundred dollars; but being introduced, they must be understood as qualifying and restraining the operation of the general provisions, to cases in which neither executors nor administrators are parties. As the law stood before the revision, justices of the peace had jurisdiction of actions against executors and administrators, to the amount of twenty dollars. From the manner in which previous laws wore incorporated into the Revised Statutes, we are satisfied the Legislature did not design to increase the jurisdiction of justices in this respect. The justice, therefore, exceeded his jurisdiction. The fact that the parties appeared before him and contested the merits of the case, can have no bearing on the proper decision of this question. It is a familiar doctrine that consent cannot confer jurisdiction.

The judgment of the Circuit Court is reversed, with costs against the administrators to be paid in due course of administration.

Judgment reversed.