text:
    The President and Directors of the State Bank, Plaintiffs in Error, v. Nathaniel Buckmaster, Defendant in Error.
    ERROR TO MADISON.
    The omission in a writ, of the words, “ The people of the state of Illinois to the coroner,” &c., is a mere misprision of the clerk and is amendable.

    This was a scire facias brought by the plaintiffs in the circuit court of Madison county, against the defendant, then sheriff of said county, to foreclose a mortgage executed by him to the State bank. A motion was made by defendant’s counsel, to dismiss the suit on the ground of irregularity in the scire facias, the words, “ the people of the state of Illinois to the coroner of Madison county,” having been omitted. A motion was also made by the plaintiffs’ counsel to amend the scire facias, which the court overruled, and sustained the motion of defendant to dismiss. The errors assigned are, in dismissing the scire facias and in disallowing the amendment.

       The present constitution is identical with that of 1818, so far as relates to this case. Article 5, sec. 26, of Constitution of 1848. In McFadden v. Fortier, 20 Ill., 515, which was a demurrer to a scire facias, the defendant objected that it did not run in the name of “ The People of the State of Illinois; ” but the court said: “It has, however, been decided by this court, (State Bank v. Buckmaster,) in precisely such a case as this, that the omission of these words in a writ of sci. fa. is a mere misprision of the clerk, and is amendable after a motion is made to dismiss on account of the omission. Here no motion was made to amend.”
      A fee-bill is a process, and must conform to the requirement of the constitution, that “All process, writs and other proceedings, shall run in the name of “ The People of the State of Illinois,” or it is void. Ferris v. Crow, 5 Gilm., 96.
      The precept under which the sheriff makes sale of lands for non-payment of taxes, is not a process, and therefore need not run in the name of “ The People.” Scarritt v. Chapman, 11 Ill., 443. Curry v. Hinman, id., 420. See also Harris v. Jenks, 2 Scam., 475.

   Opinion of the Court by

Justice Lockwood.

The only question submitted in this case is, whether the court ought to have suffered the amendment asked for. The mistake committed in the scire facias is clearly a clerical error, and upon the principle assumed by late cases, that the court will amend all such errors, the court below ought to have permitted it. The mistake in this case could not lead to any misapprehension or in the least tend to surprise the party. The doctrine of amendments is well calculated to advance justice and prevent delay. The constitution requiring that writs, &c., shall run “in the name of the people of the state of Illinois,” seems to be directory to the clerk or person issuing the process, and the omission of the words is a mere misprision of the clerk and ought not to work an injury to the plaintiffs. ' The court therefore erred in dismissing the scire facias and entering judgment against plaintiffs for the costs. The judgment is reversed with costs, and the cause remanded to the circuit court of Madison, for further proceedings,

Cowles, states’ attorney, for plaintiff in error.

J. Reynolds, for defendant in error.

Judgment reversed.

       Article 4, section 7.

         Generally, all amendments are within the discretion of the court, and are allowed in furtherance of justice, under the particular circumstances of the case. 6 Dane’s Dig., 280. A writ amended by adding the clerk’s name on paying costs. Id., 295.
      A ca. sa. on which the defendant had been taken was allowed to be amended by adding the testatum clause. 3 Johns. Rep., 144. 5 Johns. Rep., 163. 2 Term. Rep., 737. 5 Johns. Rep , 100. 1 Johns. Cas., 31. 3 Johns. Rep., 443.
      Amendments are reducible to no certain rule. Each particular case must be left to the sound discretion of the court. The best principle seems to be that an amendment shall or shall not be permitted, as it will best tend to the furtherance of justice. 1 Bin., 369. Clerical errors may be amended in a criminal as well as in a civii case. 2 Bin., 514. Mistakes and misprisions of the clerk may be amended at any time. Hanley v. Dewes, Miss. Rep., 17. Vide, 2 Tidd’s Prac., 1036. 2 Bos. & Pull., 275. 9 Johns. Rep., 386. 1 Bos. & Pull., 31, 137, 329. 5 id., 103.


source: Caselaw Access Project

author: Justice Lockwood.

license: Public Domain

text:
    Thomas Reynolds, Appellant, v. James Mitchell and others, Appellees.
    APPEAL FROM ST. CLAIR.
    Where judgment is rendered by a justice of the peace, for a greater amount than the defendant owes, his remedy is not by application to a court of equity, but by appeal to the circuit court.
    It is right to dissolve an injunction and dismiss the bill, without compelling an answer from all the defendants.
    This was a bill in chancery, filed by Reynolds against Mitchell and others. The bill states that Reynolds made his note in 1821, to one Wm. Small, for one hundred state paper dollars, or bills of the State Bank of Illinois, which Small assigned in the same year to Mitchell, who is made defendant to the bill, and that said Mitchell, as assignee of said Small, afterwards brought his action on said note, before one Edmund F. Wilkinson, a justice of the peace for St. Clair county, on the 21st of September, 1822, and obtained a judgment on said note for 99 dollars and 99 cents, and that said Wilkinson, who is also made defendant, combining and .confederating with the said Mitchell to defraud said Reynolds, rendered judgment on said contract for so much specie, when the said paper, when the note became due, was worth only 40 cents to the dollar, and that the justice had no power to give judgment for the nominal amount of the note in specie. The bill further alleges that Reynolds, at the time the judgment was rendered, offered to the justice the amount of the note in bills of the State Bank, which were refused— that an execution has issued on said judgment for specie which Reynolds replevied for three years, after the expiration of which, another execution issued for specie, which was levied on the personal property of Reynolds. The bill prays for an injunction, and the defendants to answer, &c. Mitchell alone answered the bill, admitting the purchase of the note from Small, and the rendering judgment thereon, and the replevy, &c.,but denies that Reynolds ever offered to the justice the amount of the note before the judgment, averring his willingness to take it before the judgment, but not after, and contended that as Reynolds did not pay the note in State Bank paper before the judgment, and when it was due, that he was entitled, therefore, to recover the value of the amount of said state paper, at the time the note fell due, and that said justice had a right to determine judicially what that value was, and that he did determine it to he 99 dollars and 99 cents, as stated in the bill. He also pleads the judgment and replevy in bar of all equity—denies that state paper was not worth more than 40 cents to the dollar, and all fraud, combination, &c. Upon filing this answer, a motion was made to dissolve the injunction and dismiss the bill, which was sustained by the court, and an appeal taken to this court. It was assigned for error that the court erred in dismissing the bill and dissolving the injunction, for the reason, First, because the justice had no right, by law, to render a judgment for specie, on the note ; and Second, because a decree was made, and the injunction dissolved, when the parties in interest, and charged in said bill, had not answered, to wit, the justice Wilkinson.
   Opinion of the Court by

Justice Lockwood.

The court are of opinion, that the appellant has misconceived his remedy. If the judgment before the justice was rendered for too great an amount, the remedy was an appeal to the circuit court. The plaintiff having neglected to take an appeal, can not now be relieved in equity. The court had a right to dismiss the bill, and dissolve the injunction, without compelling an answer from all the defendants. The judgment is affirmed with costs.

Cowles, for appellant.

Blackwell, for appellee.

Judgment affirmed.

       In Sims v. Hugsby, post, a default was entered against the defendant, and the clerk ordered to assess the damages. The clerk, in making the computation, overlooked a credit indorsed on the note sued on, and thereby entered the judgment for more than was due. The supreme court, in that case, said: "If the clerk, in the discharge of that duty, (assessing damages,) should allow either too much or too little, the court, under whose direction it is made, will, upon motion, correct it. To that court, then, and not to this, the application should be made.” And again in Wilcox v. Woods et al., 3 Scam., 51, “It is alleged that the court erred in rendering judgment for a larger amount than the note, as set out in the declaration, shows the plaintiff entitled to recover. This can not be assigned for error. The proper remedy of the party was by motion in the court below, where the error could have been corrected.” This was again repeated in Smith v. Lusk, 3 Scam., 411. But I can not satisfy myself that the principle intended to be established by these cases is correct. In the cases referred to, the decisions were correct so far as they related to those particular cases, because the notes not being a part of the declaration, and not being preserved in any manner in the record, the court could not see that the assessments were too large. But suppose a note is set out in hcec verba in the declaration, thereby making it a part of the declaration, and the record shows the judgment to be for more than the plaintiff sued for, why is it not error that the supreme court can reform ? Suppose a verdict to be found by a jury; the evidence is preserved by a bill of exceptions; and from that the court sees the plaintiff has obtained a verdict to which he was not entitled, and will set it aside without hesitation. And why? Because the record shows the verdict is too large. Now if the clerk, instead of a jury, assess the damages, and commits an error, and the record shows the error, why is it not the duty of the appellate court to correct it as well as if it had been the fault of a jury ? Can there be any reason why the court will interpose to correct the errors of a jury, and not of a clerk, when the record in both cases shows the error ?
      In a late case, Sexton v. School Com’r, 19 Ill., 51, the court in fact decided in accordance with these views, although the report does not show that this question was raised. The action was on a note executed to the school commissioner. A default was entered, and the clerk in assessing damages included twelve per cent, interest, and this was reversed, although the error was not preserved in the record in any other manner than the statement made in the declaration, and the judgment. See also, 6 Mass. Rep., 272. 2 Wash. Rep., 173.
      An injunction may be dissolved, on motion, before answer, where there is no equity on the face of the bill. Richard et al v. Prevo, post. Puterbaugh v. Elliott et al., 22 Ill., 157. Beaird v. Foreman, post.


author: Chief Justice Wilson.

text:
    Henry Hayes, Adm’r. Appellant, v. John Thomas and others, Appellees.
    APPEAL FROM ST. CLAIR.
    The computation of the civilians is adopted to ascertain who are next of kin to an intestate.
    Where a person dies leaving no issue or father, but mother, brothers and sisters, the mother is the heir to her son's whole estate.
    If the court, in looking into the whole record, find a decree has been entered in favor of persons not entitled to it, this court is bound to reverse it.
    An entire judgment against several defendants can not be affirmed as to one, and reversed as to the others, and the same rule should prevail as to plaintiffs.
    This was a suit in chancery, brought by the appellees against the appellant for a share of the estate of an intestate, to whom they claimed to be the heirs at law.
   Opinion of the Court by

Chief Justice Wilson.

The first question" presented in this case is, who are the next of kin in equal degree to the intestate. It appears from the bill, that the intestate died without issue, but that he left a mother, brothers and sisters.

According to the computation of the civilians, the father and mother are related to their children in the first degree, and brothers and sisters in the second. According to the rule of Hilhouse v. Chester, 3 Day’s Rep., 166, 210, the computation of the civilians is adopted, to ascertain who are next of kin, and this rule prevails, whether the expression is used in relation to the descent of real or personal estate. The court thinks that the civil law mode of ascertaining who are next of kin, ought to be adopted in construing our statute, as being more agreeable to the nature of things, and more conformable to adjudged cases. The mother is therefore to be considered the next of kin to the intestate, and entitled to the whole of her son’s estate. It is, however, objected, that it is now too late to take the advantage, that persons are complainants in the bill in whose favor a decree has been made, who are not by law entitled to such decree, because no objection was taken below to 'the improper joinder of parties who have no interest in the suit. This objection can not prevail, however much the court may regret that so much expense has been incurred before the discovery of the error. The court is bound to look into the whole record, and if they find a decree has been made in favor of persons who are not entitled to it, they are bound to reverse it. 4 Hen. and Munf., 200. 16 Johns. Rep., 348.

Cowles, for appellant.

Blackwell, for Appellee.

A further question arises here, whether the decree may not be reversed in part, and affirmed in part. This may be done where the decree or judgment is in distinct parts, but in this case, the decree is for an aggregate sum to all the complainants. It has been decided that an entire judgment against several defendants can not be affirmed as to one, and reversed as to others, 14 Johns. Rep., 417; and the same rule should prevail as to plaintiffs. The decree must therefore be reversed. The court have, however, a discretion as .to costs, and inasmuch as the defendant did not avail himself of the error below, and the mistake appears to be mutual, the court order that each party pay his own costs, both here and in the court below, Decree reversed.

       Lockwood, J., having been counsel in this cause, gave no opinion.

       This is now changed by statute, which provides, that when there are no children of the intestate, nor descendants of such children, and no widow, the estate shall go to the parents, brothers and sisters, in equal parts among them; and if one of the parents be dead, the survivor shall take a double portion. The same statute also provides that the computation among collateral relations shall be according to the rules of the civil law. Purple’s Statutes, p. 1200, sec. 46. Scates’ Comp., p. 1199.
      A posthumous child will inherit directly from the parent, with the same effect as if it had been born at the time of the decease of the parent. Detrick v. Migatt, 19 Ill., 146. McConnel et al. v. Smith, Adm’r, etc., 23 Ill., 611.

         The next of kin are those who are so determined by the civil law, by which the intestate himself is the terminus a quo the several degrees are numbered. Under that rule the father stands in the first degree, the grandfather and grandson in the second, and in the collateral line, the computation is from the intestate up to the common ancestor of the intestate, and the person whose relationship is sought after, and then down tcfrthat person. According to that rule, the intestate and his brothers are related in the second degree, the intestate and his uncle in the third degree. 2 Kent’s Comm., 339.
      The court of king’s bench declared in the case of Blackborough v. Davis, 1 P. Wms., 41. 2 Vesey, 215, that the father and mother had always the preference before the brothers and sisters, in the inheritance of the personal estate, as being esteemed nearer of kin.
      Under the statute of distributions, claimants take per stirpes only when they stand in unequal degrees, or claim by representation, but when they are all in equal degree, as three brothers, three nephews, &c., they take per capita, or each an eqflal share. 2 Kent’s Comm., 342.
      Our statute of distributions passed in 1829, (Laws of 1829, page 206,) declares that where there shall be no children of the intestate, nor descendants of such children, and no widow, then the estate goes to the parents, brothers and sisters of the deceased person and their descendants, in equal parts among them; if there be a widow and no child, or descendants of a child, then the one-half of the real estate, and the whole of the personal estate shall go to the widow as her exclusive estate forever. If there be no children or descendants of children, and no widow, no parents, brothers or sisters, or descendants of brothers and sisters, then the estate descends in equal parts to the next of kin to the intestate, in equal degree, computing by the rules of the civil law.
      Prom this law it will be perceived that the rule of distribution as declared in the case of Hays v. Thomas, is now altered.
      Where a judgment is entire, there must be a total affirmance or reversal. 12 Johns. Rep., 434.


author: Justice Smith.

text:
    Ladd and Taylor, Plaintiffs in Error, v. Ninian Edwards, Defendant in Error.
    ERROR to pope.
    If a suit is brought against three or more obligors in a bond, on some of whom process is not served, the regular course is, to take judgment against those on whom process has been served, and by sci.fa. against those not served.
    Where a party defendant appears and pleads by attorney, without process, it is error to proceed to judgment against those who have been served, without also taking judgment against him who thus appeared by attorney.
    If such defendant should die after plea filed, and before jddgment, his death should be noticed on the record.
   Opinion of the Court by

Justice Smith.

This is an action against three joint and several obligors.

The principal error relied on by the counsel for the plaintiff in error is, the discontinuance of proceedings as to one of the defendants on whom process was not served, but,who appeared by attorney. Several decisions of the supreme court of Kentucky are cited as supporting the objections urged. Those decisions are inapplicable to the present case, because they relate to cases of a different character from that before the court. The 31st section of the act of 22d of March, 1819, regulating the practice in the supreme and circuit courts of this state, provides that the plaintiff may proceed to judgment against those on whom process is served; and by scire facias against those on whom it may not be served. There is, however, a discontinuance after the appearance of the defendants, which can not be cured, and which is clearly error. The statute can afford no means of curing it. One of the defendants was not served with process, yet he appeared by attorney and pleaded. Against him no judgment has been entered. As this court must presume this appearance to have been authorized, and as no proceedings have been had against him after his appearance and plea, and the judgment has been entered against the other two defendants only, it is most evidently erroneous. If, as was remarked in the argument, he died after plea filed, and before the entry of the judgment, the suggestion of his death should have appeared on the record. The court can not pass beyond the record to ascertain the fact. Let the judgment be reversed with costs, and the cause remanded to the court below, with leave to the plaintiff to proceed anew.

Starr, for plaintiffs in error.

Cowles, for defendant in error.

Judgment reversed.

       Lockwood, J., having been counsel in this cause, gave no opinion.

       Laws of 1819, page 147.

       See note (1) to the case of Kimmel v. Shultz, ante, p. 169.


text:
    Thomas Mason, Appellant, v. The President and Directors of the State Bank of Illinois, Appellees.
    APPEAL FROM EDWARDS.
    To authorize an inquiry by the sheriff into the right of property, it is necessary there should be a taking of personal property by a writ of execution regularly issued at the suit of a plaintiff against a defendant, and a claim interposed by a third person. And in case of an appeal to the circuit court, all the proceedings before the sheriff are to be transmitted; if they are not, the circuit court can not exercise jurisdiction.
   Opinion of the Court by

Justice Smith.

The extremely imperfect state in which this cause is presented to the court by the record, has led to some embarrassment as to the course which ought to be adopted in the disposition to be made of it. Whether from its manifest imperfections and omissions it ought not to be dismissed as presenting no absolute question for the determination of this court, or whether by determining from the record itself that no case is presented of which the court below had jurisdiction, to reverse the judgment of the court below for that cause.

It is alone by inference that this court can imagine what the real cause of inquiry and adjudication was intended to have been in the circuit court. It would seem to relate to an appeal from some inquiry had before a sheriff as to the right of personal property taken in execution at the suit of some one under the act of 10th of January, 1825, amendatory of an act prescribing the mode of trying the right of property in certain cases, approved the 7th of February, 1823. But whether or not such was the case, we are, from the record, left entirely to conjecture.

By the second section of this act, it is made the duty of the sheriff, whenever property is taken by him under execution, and shall be claimed by a person not a party to the writ of execution, to ascertain the right of property through the intervention of a jury of twelve men, before whom the respective parties may exhibit their evidence, reserving to either party the right of appealing from such decision to the circuit court of the county where such decision may be had. In case of an appeal from the decision had before the sheriff, it is made the further duty to transmit to the clerk of the circuit court of the county of which he is sheriff, ten days before the first day of the term of the court next following the time of such inquiry had before him, all the proceedings by him had in such case, and the circuit court may review the same in such manner as it shall direct.

From the provisions of the law it clearly follows that there must have been a taking of personal property under a writ of execution regularly issued at the suit of a plaintiff against a defendant, and a claim interposed by a third person to authorize an inquiry by the sheriff, and that in case of appeal, all the proceedings are to be transmitted to the circuit court in the manner directed by the act. In the present case, nothing appears to show that the sheriff could assume jurisdiction of the inquiry, if it be admitted by the proceedings set forth by the record, (which is certainly very doubtful,) that such an inquiry was ever made.

For ought that appears to this court, no writ of execution ever issued at the suit of any one, no personal or other property was ever taken from the possession of the defendant, or third person, nor have proceedings relative to such an inquiry ever been returned into the circuit court of Edwards county. How then could the circuit court of Edwards county ever assume jurisdiction of the supposed controversy, when none appears to have existed before the sheriff? The circuit court could alone entertain jurisdiction of the matter of inquiry before the sheriff, as an appellate court, and in proceeding to review the inquiry before the sheriff, is it not indispensable that the proceedings had before him should have been returned to the court to enable it to exercise jurisdiction in the case ? It is urged, that the parties, by their appearance, have given the court jurisdiction. This to a certain extent is true, if the court had jurisdiction of the subject matter ; but that subject matter must be presented to the court in a form sufficiently definite for it to judge whether or not it has such jurisdiction. Here the difficulty arises, that although the parties did appear and proceed to a hearing, no cause or subject matter appears to have been presented, upon which the court would give a judgment. It is the want of this that vitiates the whole proceedings in the circuit court. The irregularity in omitting to show the character of the proceedings before the sheriff, and the entire absence in the record of any description of complaint which could form the subject of a judicial investigation, is too manifest to warrant a doubt of the want of jurisdiction in the circuit court, notwithstanding the appearance of the parties.

Eddy, for plaintiff in error.

Robinson, circuit attorney, for defendant in error.

I am therefore of opinion that the judgment be reversed and that the plaintiff in error recover his costs.

Judgment reversed.

       Lockwood, J., having been counsel in this cause, gave no opinion.

      Laws of 1825, page 69,

       On the trial of the right of property, levied on under an execution, the claimant objected to the execution on the ground that it was a. nullity, having been issued by a court not having jurisdiction. It was held, that if the execution was a nullity, the claimant ought to have brought an action of trespass, replevin, or trover, for the goods, against the officer, and not have required a trial of the right of property. By requiring such trial, he admitted the validity of the execution and only claimed that it had been levied on his property, and not on that of the defendant in the execution. Harrison v. Singleton, 2 Scam., 21.
      An officer, after having levied an execution, may have a controverted title tried by a jury, whose verdict will be a guide and warrant for his future action. Wentworth v. The People, 4 Scam., 555.


text:
    Anson Collins, Appellant, v. John Waggoner, Appellee.
    APPEAL FROM MADISON.
    Trespass will lie if the process is abused, or if after it has done its office, the officer proceeds to act under color of it by direction of the plaintiffs, they become both liable as trespassers.
   Opinion of the Court by

Chief Justice Wilson.

The only question presented by this case for the decision of the court is, whether the proper form of action has been adopted.

The facts in the case are, that Waggoner sued Collins in replevin for a cow, upon which issue was taken, and a verdict and judgment for Waggoner. Collins also pleaded a judgment against Waggoner on which an execution issued, by virtue of which a constable took the cow and sold her, and he became the purchaser. To this plea Waggoner replied that the cause of action upon which the judgment was rendered, accrued before the first of May, 1821, that there was no indorsement on the execution to take the notes of the -state bank; that before and after the cow was taken by the execution, he offered to pay it in notes of the state bank, or replevy it for three years, and that Collins would not permit it to be done, but directed the constable to levy. To this replication there was a demurrer which was overruled ; the case was then tried upon the issue of non cepit, and a verdict and judgment for Waggoner. It is contended that trespass will not lie for any act done under a process regularly issued from a court having competent jurisdiction. This rule is true as regards acts in conformity with the authority conferred by the process, even though there should be malice in the manner of executing it. But if the process is abused, trespass will lie, or if, after having done its office, the officer proceeds to act under color of it by the direction of the plaintiffs, they both become liable as trespassers.

In this case before the justice, the statute permitted the defendant to discharge the execution in the notes of the state bank, or replevy it for three years, which he offered to do, but the plaintiff in the execution refused to permit it to be done. If he had stopped here he would not have been liable as a traspasser, but he became so by the subsequent levy of the execution by the constable, under his directions, because it had spent its force and was officially dead. The taking of the cow, therefore, was tortious and no more authorized by the execution than the taking property of a third person. The judgment of the court below is affirmed, ,

Starr, for appellant.

Cowles, for appellee.

Judgment affirmed.

       Justices Lockwood and Smith having been counsel in this cause, gave no opinion.

       If a sheriff levy an execution after the return day, by the direction of the plaintiff and his attorney, they are all trespassers. Vail v. Lewis, 4 Johns. Rep., 450.
      An execution, after the expiration of the time within which it is made returnable, is of no force, and an arrest under it is a trespass. Stoyel v. Lawrence & Adams. 3 Day’s Rep , 1.

       See note to Moore v. Watts et al., ante, p. 42, where the decisions on this question are fully referred to.


text:
    John Flack and Robert B. Johnson, Plaintiffs in Error, v. John Ankeny, Defendant in Error.
    ERROR TO JACKSON.
    A warrant which states in substance, that A. B. had made complaint on oath that C. D. and others had violently assaulted and beaten him, and the officer required to arrest them and bring them before the justice, contains every thing essential to a valid warrant.
    At common law, a justice may authorize any person he pleases to be his officer, and under the act of 22d March, 1819, a magistrate can appoint a constable in a criminal case, where there is a probability that the criminal will escape.
    Where a justice has jurisdiction, but proceeds erroneously, he is not a trespasser, but where he has not jurisdiction, he is.
   Opinion of the Court by

Justice Lockwood.

This is an action of trespass and false imprisonment, brought by Ankeny against Flack, a justice of the peace, for illegally issuing a warrant, and against Johnson for executing it. The defendants below demurred to the plaintiff’s declaration, on which demurrer, judgment was given for the plaintiff, and his damages assessed by a jury of inquiry. The only question presented in this case is, whether the plaintiff below has set out a sufficient cause of action in his declaration.

The declaration states that Flack, as justice of the peace, unlawfully issued a warrant in substance as follows, to wit: “ Commanding any constable of Jackson county, to take the body of Ankeny and others, and bring, &c., to answer the complaint of Edward Valentine in a case of assault and bat-; tery, and threats of his life, on the night of the 18th of this instant, wherein he has this day personally appeared before me, and solemnly swore that they struck, kicked, and whipped him, so as to mangle his body most cruelly,” and given under the hand and seal of the justice. The declaration further states, that “ on said warrant is the following indorsement, to wit: “I depute Robert B. Johnson, constable,” which warrant so unlawfully issued as aforesaid, was by the said Flack directed to, and handed over to the said Johnson, deputed as aforesaid, and that Johnson executed the same, by arresting the said Ankeny. This is the substance of the complaint.

This warrant contains every thing that is essential to a valid warrant. It states, in substance, though perhaps not very formally, that Valentine had made complaint, on oath, that he had been violently assaulted and beaten, by Ankeny and others, and the officer was required to arrest the offender and bring him before the justice. See 1 Ch. Crim. Law, 38 to 64. The justice had jurisdiction over the offense charged against Ankeny, and he seems to have fully complied with the 27th section of the act entitled “An act to regulate and define the duties of justices of the peace and constables,” approved 18th Feb., 1823. So far, then, as issuing the warrant is concerned, the justice acted within the pale of his authority, and the court do not see any thing very objectionable in deputing Johnson to serve it. At common law, a justice may authorize any person whom he pleases, to be his officer, 1 Ch. Crim. Law, 38; and by the fourth section of the act providing for the appointment of constables, approved March 22d, 1819, it is provided, “ that nothing in this act shall be so construed as to prevent any magistrate in the state from appointing any suitable person to act as constable in a criminal case, where there is a probability that the criminal will escape,” &c. The only possible objection that is perceived to the appointment of Johnson, is, that in the deputation, it is not stated that “there is a probability that the criminal will escape:” If magistrates were always held liable for every trifling mistake they commit in the performance of their various official duties, few persons would be found willing to accept an office of so little profit, and attended with such great risk. Courts, therefore, from necessity, are bound to view their acts with reasonable indulgence, and if they are governed by good faith, and act within their jurisdiction, they ought not to be held liable for errors of judgment in matters of mere form. The justice had power, at common law, to make the appointment in the manner he did, but if it should be supposed that the statute has impliedly taken away this power, still, as the justice has the power to make the appointment on a certain contingency, it seems no unreasonable presumption that the contingency existed that gave him the power to appoint in the manner he has done.

Cowles, for plaintiffs in error.

Young and Hall, for defendant in error.

The rule, applicable to cases of this kind, is well laid down by the supreme court of New York, in the case of Butler v. Potter, 17 Johns. Rep., 145. The court there say, “we have decided that where a justice has jurisdiction to issue an attachment, but proceeds erroneously in doing so, he is not, therefore, a trespasser. The distinction is this: where the justice has no jurisdiction, and undertakes to act, his acts are coram non judice, but if he has jurisdiction, and errs in exercising it, then the act is not void, but voidable, only.” The declaration does not negative the idea, but that the justice acted upon the belief of “ the probability that the criminals would escape.” For any thing that appears in the declaration, the justice acted perfectly right in deputing Johnson to serve the warrant, but if he erred in this respect, still it can not be said but that he had jurisdiction over the question, and this is sufficient for his justification. If the justice is not liable, there can be no pretense for sustaining the action against Johnson. The judgment must be reversed with costs, ,

Judgment reversed.

       Laws of 1823, p. 184.

       Laws of 1819, p. 163.

         No action of false imprisonment lies against a judge of a court of record for any act done by him as judge, or in the execution of his office, nor for any error in judgment. 5 Dane’s Dig., 586. Nor a judicial officer, 3 id., 60.
      It is incomprehensible to say that a person shall he considered as a trespasser, who acts under the process of the court, per Ld. Kenyon, Gh. Just., in the case of Belk v. Broadbent, 3 D. & E., 185.
      It is a general rule, the plaintiff is liable to false imprisonment, if the court exceed, or pursues not its jurisdiction, and any power to commit must be strictly pursued. So it lies if a magistrate has power to commit, and proceeds irreqularh. 5 Dane’s Dig., 587.
      If the court has no jurisdiction, its warrant, when given, affords no gxcuse to the officer for the arrest. Ibid., 589. The jurisdiction of" courts and magistrates is a part of the law of the land, and this, the officer, and everybody else, is bound to know. 3 Dane’s Dig., 65.
      It is a clear rule, that if a court not having jurisdiction, order an officer to do an act, and the officer obeys the order, his act is not justified. Ibid., pp. 66, 68, 69.

       See note to last case.
      The following is the provision of the present statute in relation to the appointment of constables : “ Any justice of the peace may appoint a suitable person to act as constable in a criminal or other case, where there is a probability that a person charged with any indictable offense will escape before application can be made to a qualified constable; and the person so appointed shall act as constable in that particular case, and no other; and any temporary appointment so made as aforesaid, shall be made by a written indorsement, under the seal of the justice deputing, on the back of the process, which the person receiving the same shall be deputed to execute.” Purple’s Statutes, p. 676, sec. 86. Scates’ Comp., 714.
      There is also the further provision: “ Whenever there shall be no constable in any precinct, any justice of the peace in such precinct may appoint one, who shall be qualified as in other cases, and hold his office until superseded by an election. Purple’s Statutes, p. 662, sec. 16. Scates’ Comp., 686.
      In Gordon v. Knapp, the justice appointed a constable pro tem. to serve a summons ; the appointment was not on the back of the summons, but on a separate paper. The court held the" appointment not to be a compliance with the statute, and said: “ As a justice is an officer of inferior and special powers, the existence of the causes which would justify him in deputing an officer to execute process, should be shown; and the kind of process, and the mode of appointing the officer to execute it, should be in strict accordance with the statute, otherwise the appointment is void, and the service of the process a nullity.” 1 Scam., 489.


text:
    Adolphus P. Hubbard, Appellant, v. Jonathan Hobson, Appellee.
    APPEAL FROM GALLATIN.
    As a general rule, a court of equity will not interfere to relieve a defendant who has neglected to make his defense at law. But if he did not know of his defense until after the judgment, a court of equity will relieve.
    It is erroneous to enter up a decree against the security in the injunction bond for the amount of the judgment at law and the costs in that suit, and interest on the judgment, and six per cent, damages, and the costs of the suit in equity.
   Opinion of the Court by

Justice Smith.

Hubbard filed liis bill in the court below for relief against a judgment at law obtained by Hobson in the Gallatin circuit court, on a record of a judgment against Hubbard in the Warren circuit court, in the state of Kentucky. The court below, on a hearing, dissolved the injunction, and dismissed the complainant’s bill, and also decreed that Hobson should recover the amount of the judgment at law, with interest and costs, and six per cent, damages from Hubbard and his security. To reverse this decree the present appeal is prosecuted.

The counsel for the appellant, on the argument, assumed four grounds on which they contended that a reversal ought to be had:

1. That Hubbard being only a co-security with Hobson, in the note which Hobson had been compelled to pay, no more than a moiety could be recovered from Hubbard.

2. That by the conveyance to Hobson, by Gatewood, of 200 acres of land, to which Hubbard had an equitable interest for a moiety, the claim had been liquidated as far as Hubbard could be liable to Hobson as a co-security.

8. That Hobson had, previously to the rendering of the judgment in the Gallatin circuit court, received full satisfaction for his claim against Hubbard, even if Hubbard should be considered as the principal in the note which Hobson had been compelled to pay by the acceptance of 200 acres of land from Gatewood in discharge of his claim against Hubbard and Gatewood.

4. That in dismissing the bill, and subsequently rendering a decree against the complainant and his security in the injunction bond, the court exceeded its powers.

To this it was replied that the answer of the defendant in eqxxity, was conclusive, and that the complainant not having availed himself of the matters set forth in his bill by way of defense in the ti'ial at law, was now precluded from offering them in equity, and that that court would not interpose to relieve him.

From a very deliberate and minute examination of this case, three propositions arising out of the third and fourth points made by the appellant’s counsel, naturally present themselves as the only important grounds for consideration ; the first and second points being deemed untenable and unsupported by the facts embraced in the case ; first, has the claim of the appellee been released or discharged by his acceptance of property from Gatewood in satisfaction, or has he indemnified himself oxxt of the avails of the property of Gatewood which may have come to bis possession ?

Second, ought the appellant, if Hobson accepted property in discharge, or indemnified himself out of the property of Gatewood, to have made this a defense to the action at law, and can he now, not having done so, assert it in eqxxity ?

Third, is the form of the entry and character of the judgment warranted.

In order to arrive at a correct conclusion as it regards the first pi’oposition, I have examined the allegations of the bill, and the denials in the answer, with great care, nor has the evidence of the several parties wlxich has been adduced, been less diligently or caxxtiously observed. I confess there is much obscxxi'ity and want of precision in many parts of the testimony, but from the best analysis I have been enabled to make of it, I have been led to consider it as establishing pretty clearly that Hobson accepted from Gatewood the surrender of two hundred acres of land lying on the Nashville road, in Kentucky, for the purpose of either enabling him to create a fund out of which he might indemnify himself for the liability he had incurred by joining in the note given by GateWood, Hxibbard, and himself, to Hays, or as a satisfaction for the responsibility he had incurred in that transaction. That he subsequently came into possession of the land, and conveyed it to one Shackelford,‘for what consideration does not appear, but its value is established at the time of such sale, to have been of a greater amount than Hobson’s claim, and that he allowed Gatewood seven hundred dollars for it, the exact amount of the note he had joined in as a co-security, and had received the land on account of that transaction.

It also appears that Hobson admitted to one of the witnesses that the claim in question had been settled out of the property and effects of Gatewood, and that when charged with having received the two hundred acres of land in satisfaction of that claim, he did not deny it. It is true, the appellee in his answer, denies most positively that the claim had been paid out of the effects of Gatewood, or that he had ever received any tract of land to secure or discharge him from his liability created by his securityship, and one of the appellant’s witnesses stands manifestly impeached, if his testimony were not clearly supported in most of its material parts, by three other witnesses. The rule of evidence in equity is too well settled, and the reason of it too well founded, to lead to the least embarrassment in this state of the case, in deciding, that' notwithstanding the positive denial of the appellee, and even admitting the witness alluded to should be considered as impeached and his testimony consequently rejected, that the testimony of three of the other witnesses, so far as it regards the point under consideration, must prevail. This being the state of the evidence, it must be conceded that the first point is affirmatively established, and that the appellant has made out a case requiring the interposition of this court, unless, indeed, he is precluded by his own acts of negligence or folly ; which leads us to the consideration of the second point. It is no doubt a well settled general principle in courts of equity, that they will not relieve, where the party might have availed himself of the same matter in defense in the suit at law, but to this general rule it is conceived there are some exceptions.

It is not understood that if the matter offered as ground for relief in equity might have been admitted in a trial at law as a defense, that therefore a court of equity will not interpose its jurisdiction and power, but that the party must also have been in a situation to have made such defense, and that through negligence, inattention, or some other cause which he might have controlled, he has omitted to do so.

By the establishment of the general principle, it surely was not intended to preclude a party from interposing a defense in equity, of the knowledge of which he only became possessed, since the determination of the suit at law, or the truth of which, he had only found himself capable of establishing since such determination. Believing that this exposition of the rule requires only to be stated to be admitted, I proceed to inquire whether the appellant comes within the rule as it is interpreted. In the bill, he alleges that he only came to the knowledge of the transfer of the land by Gate-wood to Hobson, since the judgment in the suit at law, and that not until after such judgment was rendered, did he become possessed of the means of establishing the fact. It does not appear that this statement is in any way discredited or denied. Can it then be said that here is not a case precisely within the just interpretation of the rule, and that the facts, as they are presented, do not furnish just cause for allowing to the appellant the right of offering, as a ground for relief, that which, true it is, would have been matter of legal defense in the suit at law, but of the existence of which and the means of establishing, he only became possessed at a period when, in such suit, it was wholly unavailing and could not be heard ?

It is then clear that he was in a state of moral incapacity to make such defense in the court below, and the reasoning that he ought to have done so and can not therefore now be relieved, is too unsound to need further illustration, and if it be at all necessary to refer to authorities in support of the correctness of the construction I have given to the rule, among the numerous ones which may be found, reference may be had to two of very modern date—Holt’s executors v. Graham, 2 Bibb, 192, and Cunningham v. Cadwell, Hardin, 123. It is apparent that the appellant could not have made the matter now presented the basis of the relief he asks, or a subject of defense in the court below, and that he has therefore in no way deprived himself of the right of asserting it in equity. The remaining question regards the form of entry and character of the decree.

It appears from the record that the court below dissolved the injunction, dismissed the bill, and then rendered a decree in the same cause against the appellant here and his security in the injunction bond, who was no party to the suit, for the amount of the judgment and costs in the suit at law, with interest thereon, and six per cent, damages, and the costs of the suit in equity. The entry of this decree, after the court had adjudicated the cause and dismissed the bill, is thought to be an anomaly in the history of judicial proceedings, and has doubtless arisen from a natural misconception of the provisions of the statute under which the entry is supposed to be authorized, and is, very probably, an error in the clerk. From an examination of the 17th section of the act of 22d of March, 1819, regulating the practice of the courts of chancery in this state, which is the statute referred to, and the uniform rule of proceedings in courts of equity, it is not perceived, where the complainant’s bill is dismissed as not affording sufficient ground for the interposition of the court, that he can be amerced in any other way than being adjudged to pay the costs of the suit, for, (as it is technically said,) his false clamor. What the precise form of the proceedings ought to have been after the dismissal of the bill, under the statute, is, perhaps, not so easily settled. It is provided in the statute quoted, that on the dissolution of the injunction, the complainant shall pay six per cent., exclusive of legal interest, besides costs, and that judgment shall be given against the sureties in the injunction bond, as well as the complainant, and that the clerk shall issue an execution for the same when he issues an execution on said judgment; meaning, doubtless, the judgment at law. Now, if this admits of any interpretation, it must clearly sanction the idea of two separate judgments, or why provide for two separate executions? If one judgment would embrace the whole, it could not be necessary to have separate executions. If the court is authorized to enter a judgment on the bond, in a summary manner, against the obligors in that bond without notice, which I am rather inclined to doubt, it should at least form a separate proceeding from the order or decree in the suit in equity; as it now stands, there are two distinct orders or decrees in the same cause of directly opposite characters; one dismissing the complainant from- the presence of the court, and which is supposed to have terminated all proceedings in the cause, and put him beyond the power of the court; and the other rendering on the other hand a large decree in the same suit against him, in favor of the defendant who has never prayed for i|. Whether a judgment is authorized to be entered up without notice, or whether the clerk is authorized to issue an execution, without even entering the common form of a judgment, as has been sometimes practised in this state on replevin bonds, it is not necessary now to determine ; but that the form and character of the decree is incorrect, and that two decrees or orders, so opposite in their nature and consequences, can not be made in the same case, nor justified in practice, or warranted by the forms of law, I can not doubt. Again, if this decree is to stand, in what situation does it leave the complainant ?

Eddy, for appellant.

McLean, for appellee.

Upon a review of the whole case, I feel constrained to say, that the claim of Hobson has been extinguished by the receipt and disposition of the property of Gatewood, if the whole current of the testimony in the cause is to be credited. That the attempt to compel the appellant to pay it again, is, to say the least, against the clearest principles of moral justice, and the soundest rules of equity; and that putting out of view the evidently erroneous entry of the decree of the circuit court, the judgment of that court ought to be reversed, and a perpetual injunction awarded, enjoining the plaintiff in the action at law from proceeding’ on that judgment, and that the appellant recover his costs,

The judgment at law stands open, unsatisfied and in full force and effect against him.

In equity, the court have made a decree against him for the identical amount of this judgment with the interest on that judgment, the six per cent, damages and costs of suit. Is this monstrous absurdity and injustice of subjecting him to satisfy these two judgments to be countenanced for a moment ? Undoubtedly not. The erroneous entry of the decree is then, from this view alone, too manifest to require further exposition. The decision in this court, in the case of Duncan v. Morrison, is, as it relates to this irregularity, directly in point, and has settled the question.

Decree reversed.

       Laws of 1819, p. 173.

         Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not avail himself at law, or of which he could have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery. 7 Cranch, 332, 336.

       Ante, p. 151.

       See note to the case of Moore et al. v. Bagley, ante, p. 94.


text:
    R. Blackwell & Co., Appellants, v. The Auditor of Public Accounts, Appellee.
    APPEAL FROM FAYETTE,
    Where a contract is made with the state to print the laws, &c, for so much in state paper “ at its specie value, when the same shall become due and payable,” the amount to be paid by the state is not to be ascertained by an arbitrary valuation of the paper, made by the officers of the state, under a law passed subsequent to the contract, but by the market or current value of the paper?
   Opinion of the Court by

Justice Lockwood.

This is an action of assumpsit, brought by the plaintiffs on a special contract to print the laws and journals at a specified rate.

The only question in the case is, whether the plaintiffs were hound to receive state paper at an arbitrary valuation fixed upon it by the legislature, subsequent to the making of the contract. In the contract made with plaintiffs, the state agreed to pay them state paper, “ at its specie value, when the same shall become due and payable.”

The facts in the case show that plaintiffs had in all respects performed «their part of the contract, and that had they failed, they would have been liable to a heavy penalty. The case also shows that state paper was only worth thirty cents on the dollar when the contract was completed and the money became due, and that the auditor, under a statute passed subsequent to the making of the contract, paid plaintiffs the paper at the rate of thirty-three and one-third cents on the dollar. As the contract appears to have been entered info in good faith, and in the ordinary manner of making such contracts, the court can not believe that it was the intention of the legislature to violate the contract. The law requiring state paper to be issued out of the treasury at a fixed rate, does not necessarily apply to this contract, inasmuch, as the plaintiffs were to be paid out of the contingent fund, a fund over which the governor has exclusive control, and could have paid the plaintiffs their demand according to the contract, and, no doubt, the legislature supposed the plaintiffs would be paid, in that manner, the full sum they were entitled to. The officers of government have, however, put a construction upon the law, by which the plaintiffs have not received the amount stipulated to be paid them.

This being a case not foreseen by the legislature, and which, had they foreseen, they would have provided for; the court feel constrained to say, that justice and good faith require that the plaintiffs should recover the difference between the value of the paper and the rate they received it at. The judgment must therefore be reversed.

Blackwell, for appellants.

Cowles, circuit attorney, for appellee.

Judgment reversed.


text:
    Andrew Maurer, Appellant, v. John Derrick, Appellee.
    APPEAL FROM CLINTON.
    Although the accounts of the plaintiff may originally have amounted to more than 100 dollars, yet, if the defendant admits a balance to be due to plaintiff of less than 100 dollars, and promises to pay it, a justice of the peace has jurisdiction.
   Opinion of the Court by

Justice Lockwood.

This action was originally commenced before a justice of the peace and brought into the circuit court of the county of Clinton, by certiorari. On the hearing of the cause the circuit court decided that the judgment below should be reversed, because the justice of the peace had not jurisdiction of the cause. The action before the justice was commenced on a contract or account, specified as follows, to wit:

“ John Derrick,

To Andrew Maurer, Dr.

March 4, ) To 67 dollars which you owed to me—and 1826. j specially promised to pay.”

This debt was acknowledged to be due on account of horses before that time by said Maurer, sold to said Derrick. On the trial in the circuit court, it was proved that the defendant had promised to pay plaintiff sixty-four dollars. It further appeared in evidence that the promise of defendant was made in consideration of a note held by plaintiff against defendant, for upwards of 100 dollars, and that the note had subsequently came to the hands of defendant without payment in full, leaving a balance of sixty-four dollars.

A jury impanneled in the circuit court brought in a verdict for plaintiff for that amount. The circuit court granted a new trial, because the justice had not jurisdiction, and then gave judgment for defendant. The question is, whether the justice had jurisdiction. The only case decided in this court, on this subject, is the case of Clark v. Cornelius, page 46. In that cause, the plaintiff exhibited a charge before the justice of 176 dollars, and admitted a credit of seventy-seven dollars, and this court decided that the justice had not jurisdiction. The present case is, however, different. The plaintiff here sues on a balance acknowledged to be due, and the proof supports the assumpsit. There was no necessity for the justice to investigate the accounts of the plaintiff beyond the specific sum acknowledged to be due, and which the defendant, upon sufficient consideration, promised to pay. The statute giving the justice jurisdiction, is, that he shall have it “ over all debts and demands not exceeding 100 dollars, where the amount or balance is claimed to be due, on any contract, specialty, note or agreement, or for goods, wares and merchandise sold and delivered, or for work or labor done, or on account of any sums of money not exceeding 100 dollars.” The court are of opinion that the justice had jurisdiction in this case. The judgment below must be reversed.

Cowles, for appellant.

Blackwell, for appellee.

Judgment reversed.

       See note to Clark v. Cornelius, ante, p. 46.


text:
    Biggs and others, Appellants, v. Postlewait and others, Appellees.
    APPEAL FROM ST. CLAIR.
    A judgment can not be rendered against the security in an administration bond, nor is he liable to an action, until a devastavit, by suit, has first been established against the administrator.
   Opinion of the Court by

Chief Justice Wilson.

This action is brought for the use of Joseph Payne, one of the heirs at law of John Payne, deceased, against the administrator of the estate of said Payne, deceased, and his securities, upon an administration bond, taken in pursuance of a territorial statute. The administrator and his securities are both declared against, but one of the securities only is brought into court. The breaches assigned in the declaration are, that the administrator had not returned an inventory or sale bill —that he had not administered, but wasted the assets, &c., and avers, that goods and chattels to a large amount, came to the hands of the administrator, but does not aver any judgment against the administrator. To this declaration there is a demurrer and joinder, which was sustained by the court. The question is, as to the correctness of the decision of the court, upon the demurrer.

Blackwell, for appellants.

Cowles, for appellees.

The statute, that requires the bond to be taken, upon which this action is brought, is intended for the security of the intestate’s estate, and the benefit of heirs and creditors; but they must bring themselves within its object and intent, before they can claim its benefit. A person claiming to be an heir, and entitled to a distributive share of the intestate’s estate, must show himself to be thus entitled, in the ordinary course of law, by a judgment, or decree against the administrator, establishing the amount of his demand, and a devastavit by the administrator. Until these facts are established, the security is not liable—his undertaking, as regards claims against the intestate’s estate, is collateral, and can only be enforced, upon its being made to appear that the administrator has failed to do that, which by law, he was required to do. See 1 Wash., 31.

There is no averment in the declaration, that any judgment has ever been obtained against the administrator. This, I think, is essential, in order to support the present action. It would be unreasonable, and against principle, to make a third party liable in an action for a default, which it is not pretended he has committed. The judgment of the court below is affirmed, ,

Judgment affirmed.

       It is necessary, after a judgment against an executor or administrator, as such, to establish a devastavit by means of a second suit, before an action can be maintained on the administration bond. Gordon’s administrators v. The Justices of Frederick, 1 Munford’s Rep., 1.
      It seems, that the executor or administrator must be convicted of a devastavit by a verdict in a second suit, finding that he has wasted the assets, or has eloigned, disposed of, and converted the same to his own use, before an action can be sustained against the sureties. Catlet and others v. Carter’s executors, 2 Munford, 24.

       This decision was followed in the cases of Greenup v. Woodworth, post, and same v. Brown, post. But the act of 1829, (Purple's statutes, 1218, Sec. 126, Scates' Comp., 1207,) dispenses with the necessity of first establishing a devastavit before the administrator or executor, or his securities can be made liable. The People v. Miller et al., 1 Scam., 86.


author: Justice Browne.

text:
    Jonathan Mayo, Appellant, v. John Chenoweth, Appellee.
    APPEAL FROM EDGAR.
    No action can be maintained upon an instrument of writing for the payment of money, unless the instrument shows upon its face to whom it is payable.
    Robinson, for appellant.

      Cowles, for appellee.
   Opinion of the Court by

Justice Browne.

This was a suit originally brought before a justice of the peace of Edgar county by John Chenoweth against Jonathan Mayo, on an instrument of writing of the following description: “ This shall oblige me to pay thirty-five dollars on a judgment in the hands of Lewis Murphy, Esq., against Mark A. Sanders, in favor of John Chenoweth, with interest from this date till paid. Jonathan Mayo.”

April 18,1823.

A judgment was obtained against the said Jonathan Mayo by the said John Chenoweth, before a justice of the peace, for the sum of thirty-five dollars, from which judgment the said Jonathan Mayo appealed to the circuit court of Edgar county, in which court the judgment of the justice of the peace was affirmed, and from the judgment of the circuit court of the aforesaid county, Jonathan Mayo takes an appeal to this court.

The court below erred in rendering judgment below for the then plaintiff, John Chenoweth, against the defendant, Jonathan Mayo, in this, that it is not shown by the said instrument of writing upon which the action was founded, to whom it was made payable. For which reason, the court is of the opinion that the judgment below be reversed, ,

Judgment reversed.

         Vide Smith v. Bridges, ante, page 18.

       See note to Smith v. Bridges, ante, p. 18.


text:
    Fail and Nabb, Appellants, v. Goodtitle, ex dem., Hay and Lagow, Appellees.
    APPEAL FROM LAWRENCE.
    A purchaser’s right under a sheriff's deed is not affected under the act of 1819, by its not being acknowledged in court. It is well acknowledged, if it be acknowledged before the circuit court of the county of which he is sheriff, and where the land lies.
    A certificate of the register of a land office is not evidence,

         See Rev. Laws of 1827, page 199.

   Opinion of the Court by

Justice Lockwood.

This is an action of ejectment tried at the Lawrence circuit court. On the trial a verdict was found for the plaintiff below, and judgment rendered thereon. Several errors have been assigned, but on a careful inspection of the record, the court are of opinion that the record does not present facts on which to found most of the errors assigned. The bills of exceptions taken on the trial, furnish all the causes of error that can be assigned, and they are either so inartificially drawn as not to present the points intended to be relied on by the counsel for the defendants below, or such points do not exist in the case.

The court can not but regret that they are so frequently called upon to adjudicate on cases that are so imperfectly presented, that they are unable, with all the sagacity they possess, to ascertain from the record the real questions decided below. In the case now under consideration, the court however, have this satisfactory reflection, that in case they should be so unfortunate as not to decide on the real matter in dispute between the parties, their decision will not be final. Another action may be commenced, in which the rights of the parties may be presented in such a manner as, eventually, to obtain a decision on the merits. On the trial below, the plaintiff offered in evidence a sheriff’s deed, to the reception of which the defendants below excepted. The exception is in these words: “ which was opposed and objected to by the defendants, by their counsel, because it was acknowledged before the Lawrence circuit court, and not before the Crawford circuit court; which objection was overruled by the court, to which opinion the defendants, by their counsel, object and except,” &c.

The only question here presented is, whether the reason given why the deed should not be read in evidence, is a valid one. The objection is not general but special.

The parties are therefore confined to the identical objection which they made. Had other objections existed, it is fairly to be presumed, that the objection would have been general, or that the other objections would have been specified. As the bill of exceptions does not purport to give all the testimony in the case, it is also fairly presumable, that the objections taken in the assignment of errors to the reception of this deed in evidence, were either waived or obviated by proof on the trial. The court can not, therefore, inquire any further than as to the correctness of the decision on the point raised on the trial, as it is found in the bill of exceptions, and that is, whether it were essential to the validity of this deed, that it should have been acknowledged by the sheriff of Lawrence county before the Crawford circuit court ? The only statute that requires a deed to be acknowledged in court, is the statute of 22d of March, 1819. The second section says, “ that upon such sale, the sheriff or other officer shall make return thereof indorsed or annexed to the said writ of execution, and give the buyer a deed, duly executed and acknowledged in court, of what is sold,” &c. The legislature doubtless intended this requisition to the sheriff, for the benefit of the purchaser. In this view of the subject, the acknowledgment may be dispensed with altogether, without affecting the purchaser’s right under the deed.

It would be attended with great inconvenience and expense to compel the sheriff to go to a distant county, to acknowledge the execution of a deed for lands lying in the county of which he is sheriff; and as the statute does not designate the court, we are also of opinion that there has been a sufficient compliance with the statute. The second and third bills of exceptions are to the rejection of the deed of the executors of T. Dubois, deceased, and the certificate of the register of the land office at Vincennes. The objections taken to the reception of these papers in evidence are general, and were sustained by the court. In relation to the deed, the ground of objection does not appear, but, taken in connection with the offer to prove the location made of the premises by the certificates of the register of the land office, which were rejected, it is presumable, that the rejection of the deed was founded upon the ground that no title was proved to exist in the executor’s testator.

Robinson, for appellants.

Eddy, for appellee.

As the objection was general, and it does not appear that there was any offer to prove the execution of the deed, the deed was also properly rejected on that account. In relation to the certificate of the register of the land office, the court are of opinion, that it was properly rejected. The signature of registers of land offices can not be known, officially, to the court. They have no public seal to authenticate their signature; proof ought therefore to have been given of the hand writing of the register. The court have strong doubts whether the certificate of a clerk of the register can be received at all, but if received, it ought to be accompanied with proof, that the person who gave the certificate is clerk, and of his hand writing. As these bills of exception present all the grounds that can be assigned for error, and from the view taken of them, they do not furnish sufficient reasons to reverse the judgment of the court, the judgment is therefore affirmed with costs.

Judgment affirmed.

      Laws of 1819, page 177.

       The following is the statute now in force in relation to acknowledgment of deeds by sheriff. “ All deeds which may be executed by any sheriff or other officer, for any real estate sold on execution, upon being acknowledged or proven before any clerk of any cotut of record in this state, and certified under the seal of such court, shall be admitted to record in the county where the real estate sold shall be situated.” Purple’s statutes, p. 160, sec. 29. Scates’ Comp., 975.

       Certificates of the Register of the Land office are made admissible as evidence by the following provision: “ The official certificate of any register or receiver of any land office of the United States, to any fact or matter on record in his office, shall bo received in evidence in any court in this state, and shall be competent to prove the fact so certified. The certificate of any such register, of the entry or purchase of any tract of land, within his district, shall be deemed and taken to be evidence of title in the party who made such entry or purchase, or his heirs or assigns, and shall enable such party, his heirs or assigns, to recover the possession of the land described in such certificate, in any action of ejectment or forcible entry and detainer, unless a better legal and paramount title be established for the same.” Purple’s statutes, p. 541, sec. 4. Scales’ Comp., p. 255. This is substantially the provisions of the act of 1827, cited in the note of Judge Bbbese; but in 1839, the following additional act was passed: “A patent for land shall be deemed and considered a better legal and paramount title in the patentee, his heirs or assigns, than the official certificate of any register of a land office of the United States, of the entry or the purchase of the same land.” Purple’s statutes, 541, Sec. 5 Scates’ Comp., 255.
      Under these statutes we have had the following decisions:
      The receipt of a receiver of a land office, of the receipt of the purchase money, for a tract of land, is not evidence of title. Carson et al. v. Merle et al., 4 Scam., 363.
      The register having the custody of all the record books, and plats relating to the sales of land in his district, is the only officer whose certificate could be safely received as evidence of title, and is made so by statute. Roper v. Clabaugh, 3 Scam., 166.
      The receiver’s certificate is made evidence of any fact or matter on record in his office, but the register’s certificate is made evidence of title, id.
      The official certificate of the register of a land office, is made evidence, by the express terms of the statute. Turney v. Goodman, 1 Scam., 185.
      Where a record shows that the certificate of the register of a land office was received in evidence, the court will presume that proof of his official character and hand writing were previously made, unless a contrary statement is contained in the bill of exceptions. Russell v. Whiteside, 4 Scam., 7.
      In McConnell v. Wilcox, 1 Scam., 344, it was held that “the certificate of the register of the land office, of the purchase of a tract of land from, the United States, is of as high authority as a patent.” This was decided before the passage of the act of 1839, referred to above, and was taken to the Supreme Court of the United States, and by that court reversed, which caused the passage of the act of 1839. 13 Peters, 498. In that court, among other things, the court held:
      Nothing passes a perfect title to public lands, with the exception of a few cases, but a patent. The exceptions are, where Congress grants lands in words of present grant.
      The act of the legislature of Illinois, giving a right to the holder of a register’s certificate of the entry of public lands, to recover possession of such lands in an action of ejectment, does not apply to cases where a paramount title to the lands is in the hands of the defendant, or of those he represents. The exception in the law of Illinois, applies to cases in which the United States have not parted with the title to the land, by granting a patent for it.
      A state has a perfect right to legislate as she may please in regard to the remedies to be prosecuted in her courts; and to regulate the disposition of the property of her citizens, by descent, devise, or alienation. But Congress is invested, by the constitution, with the power of disposing of the public land, and making needful rules and regulations respecting it.
      Where a patent has not been issued fora part of the public lands, a state has no power to declare any title, less than a patent, valid, against a claim of the United States to the land; or against, a title held under a patent granted by the United States.
      Whenever the question in any court, state or federal, is, whether the title to property which had belonged to the United States, has passed, that question must be resolved by the laws of the United States. But whenever the property has passed, according to those laws, then the property, like all other in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.
      In another case the same court held the following:
      Congress have the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the government in reference to the public lands, declares the patent to be the superior and conclusive evidence of legal title. Until it issues, the fee is in the government; which, by the patent, passes to the grantee, and he is entitled to recover the possession in ejectment.
      When the title to the public land has passed out of the United States by conflicting patents, there can be no objection to the practice adopted by the courts of a state to give effect to the better right, in any form of remedy the legislature or courts of the" state may prescribe.
      No doubt is entertained of the power of the states to pass laws authorizing purchasers of lands from the United States, to prosecute actions of ejectment upon certificates of purchase, against trespassers on the lands purchased; but it is denied that the states have any power to declare certificates of purchase of equal dignity with a patent. Congress alone can give them such effect. Bagnell et al. v. Broderick, 13 Peters, 439.
      Upon the effect of the register’s certificate, see also the following cases Bruner v. Manlove et al., 1 Scam., 157. Whitesides et ux. v. Divers, 4 Scam., 337. Delannay v. Burnett, 4 Gilm., 454.


text:
    Shadrach Bond and Pierre Menard, Plaintiffs in Error, v. Josiah T. Betts, adm’r, Defendant in Error.
    ERROR TO RANDOLPH.
    In a declaration on a note of the following form : “ Six months after date I promise to pay Shadrach Bond and Pierre Menard, agents for Warren Brown, the sum of nineteen dollars and twenty-five cents, for value received. Witness my hand and seal,” &c.; the plaintiffs described themselves “ as agents for W. B.” It was held to be merely a description of the persons, and that those words “ as agents,” &c., might be rejected as surplusage.
   Opinion of the Court by

Justice Smith.

This case is presented to the court on a judgment on a demurrer to the plaintiffs’ declaration. The demurrer is general, and therefore every inquiry is precluded, whether causes which might have proved fatal, might not have been specially assigned for causes of demurrer. Equally untenable are the objections to the jurisdiction, no plea to the jurisdiction of the court having been pleaded. The declaration shows complete jurisdiction.

The real and only question is, whether the action on the note can be sustained in the manner and form set forth in the declaration. The note is in the following words, viz.: “ Six months after date I promise to pay Shadrach Bond and Pierre Menard, agents for Warren Brown, the sum of nineteen dollars and twenty-five cents for value received. Witness my hand and seal this 20th day of February, 1823.” The promise to pay is directly to the plaintiffs, and the consideration, by the note itself, is, by every fair, and grammatical construction of language, expressed to be received of them.

The addition to the names of the plaintiffs of the words, agents for Warren Brown,” in the note, is mere description of the person; it is therefore surplusage, and can not affect the promise. It is evident the words were only used for the purpose of showing, to whose use the money was to be received, and would not control the express promise to pay it to the plaintiffs. The contract and the consideration are expressed without ambiguity or doubt. The language is not susceptible of any equivocal meaning. The distinction taken by the defendant’s counsel in error, in the use of the words “ agent of,” and agent for,” is really not understood, nor where the difference lies, which could alter the sense of the language and meaning of the parties. It is supposed that to describe a person as agent of, or agent for another, is synonymous in language and import. The various cases cited by the defendant’s counsel have also been examined. They are considered altogether inapplicable.

T. Reynolds, for plaintiffs in error.

Baker, for defendant in error.

The general principle, in cases of the description within the range of which the present case seems to fall, is, that the words thus used, are mere description of the character or person of the obligee or promisee, and can in no way control, or alter the obvious import of the contract, and intent of the parties to it. This principle is very clearly illustrated in the case of Buffin v. Chadwick, 8 Mass. Rep., 103. The declaration in that case recited the plaintiff’s name, and as suing in the character of “ Agent of the Providence hat manufacturing company,” and the defendant, by the note, promised to pay to the plaintiff as agent of said company, and expressed the value to have been received of the company. Yet the court held that the action was rightly brought, and that the plaintiff, styling himself agent in his declaration, was merely descriptive of the person. The present case, then, is clearly much stronger than that, and the correctness of the principle more apparent. In that case, the consideration' is admitted to have proceeded from the company, in this, from the obligees themselves.

The promise, in the case before the court, being directly to the plaintiffs, the consideration therefor, being expressed to have been received of them, there can be no doubt that the action ought to be sustained.

The addition of “ agents,” is mere description and surplus-age, and can not affect the right to recover. The judgment on the demurrer must therefore be reversed, and the proceedings remanded to the circuit court of Randolph.

Judgment reversed.

       The payee of a note which has been assigned, may sue on it in his own name, without a re-assignment. And if he describes himself in the declaration as assignee, that may be rejected as surplusage. Brinkely v. Going, post.
      A declaration on a note stated that it bore date “ on the twenty seventh day of April, one thousand eighteen hundred and thirty-seven.” Held, that the words “one thousand” were mere surplusage, and no ground for arresting the judgment. Bequette v. Lasselle, 5 Blackford, 443.
      If a plaintiff states, in his writ, “ that he sues by a conservator,” and if his appearance is recorded in the usual form, and nothing appears from the record that he is under any disability, those words may be rejected as surplusage, and judgment in his favor will not be erroneous. Woodford v. Webster, 3 Day, 472.
      The principle of law relative to immaterial averments, extends alike to all the pleadings in a case; and a declaration, plea, or replication, will be sustained, rejecting mere surplusage, if the pleadings would be substantially good without it. Boone v. Stone et al., 3 Gilm., 537.

        Unnecessary allegations must be proved, if they are relevant to the grounds of the action. The distinction is between what is immaterial merely, and what is wholly irrelevant. The former can not be rejected as surplusage. Commissioners v. Brevard, 1 Brevard, 11.
      See also the following cases: Shirtliff v. The People, 2 Scam., 7. Manlove v. McHattan, 4 Scam., 96. Walker et al. v. Welch et al., 14 Ill., 278. Burnap v. Wight, id., 302.


text:
    Henry Curtis, Appellant, v. Daniel S. Swearingen, Appellee.
    APPEAL FROM CLINTON.
    Joint tenants may make a subdivision of time for the exclusive occupancy of the whole of a tract of land.
    The certificate of the sheriff, of the sale of land, without producing the judgment, and proving the regularity of the sale, is no evidence of title in the purchaser.
    This was an action of trespass quare clausum fregit, commenced in the Clinton circuit court by Swearingen against Curtis. The locus in quo is described in the declaration, as the south-east quarter of section 11, in township 2 north, of range 4, west of the 3d principal meridian, and ten acres from the north-west corner of the south-west quarter of section 12 adjoining, on which was a grist and saw-mill, &c. The defendant pleaded not guilty, with leave to give title in evidence. The jury found a verdict for the plaintiff, and 75 dollars in damages. The facts in the case, as proved, were as follows: The plaintiff, to prove his title to the premises, read in evidence a patent from the U. S., dated in 1823, granting them to Slade, Herbert’s heirs, and the plaintiff. The plaintiff claimed one-third, and John Smith two-thirds, by lease from Slade—that by agreement with plaintiff and Smith, they had some time before the trespass complained of, occupied the mills alternately; Smith for two weeks, and the plaintiff for one week, and so on regularly; that on plaintiff’s week, his occupation of the mill was always exclusive, and that during Smith’s two weeks, his occupation was exclusive—that it was their practice to commence their week or two weeks’ occupation on Monday morning, about the usual time of going to work—that one of them always used and occupied the mill, if he chose, through Sunday, and up to Monday morning, until the other would come to commence his week; that the two#weeks preceding the 26th of December, 1825, (which day was Monday,) were Smith’s two weeks for occupying the mill. Plaintiff’s son, on the preceding Sunday night, fastened the gate of the mill-race, with a chain and lock—that it had not been usual to lock the gate—that the gate was not on the land mentioned in the patent, though a part and parcel -of the mill-tract, and that they occupied it, alternately, as they did the mill. The defendant proved that some time in the week preceding the 26th of December, 1825, he applied to Smith to get possession of the mill and premises, and that Smith, for a stipulated price, let defendant have all • the possession that he, Smith, had in the same, and that he, defendant, entered upon and occupied and used the same from some time about the middle of the week next preceding said 26th of December, and continued to occupy it during that week—that defendant, a little before day on the morning of said 26th, (Monday,) and which would have been plaintiff’s week, went to the mill, and forced off the chain from the gate then in the water, opened the gate, and continued to occupy the mill with Smith, alternately, from that day to the commencement of the suit. The defendant offered in evidence, to prove a right of entry, a certificate from the sheriff of Clinton county, of the purchase of the premises under a sheriff’s sale, and also three several executions against the plaintiff, and proposed to prove by the sheriff’s return on them, and other evidence, that the sheriff had levied the executions on the plaintiff’s interest in the premises, and had sold them to defendant as mentioned in his certificate, to which evidence the plaintiff objected, and the court sustained the objection. It was further stated by a witness, that when plaintiff’s son put the chain and lock on the race-gate, on Sunday night, he was with him, that they did not go into the mill, but went past it, and that he did not see any person in it. Another witness said that no person was in the mill on Sunday, as the water was scarce ; and another witness said, he went past the mill on said Sunday, and believed that defendant or some of his family was in it, but was not certain—he knew defendant occupied it through Saturday, the 24th. This was all the evidence.
    The defendant moved the court to instruct the jury, that if they believed, from the evidence, that plaintiff’s possession was not continuous, he could not recover in this action but for the first entry, and first week’s occupation of the premises by defendant—that if they believed, from the evidence, that defendant entered under Smith by contract, the week preceding the said 26th December, and occupied for that week as Smith had a right to do, that his entry was lawful, and that retaining possession by defendant on Monday, the 26th, and thenceforward, did not make him a trespasser, and that they should find for the defendant.

      The court refused to give the instructions asked for, but instructed the jury that the plaintiff had a right to the possession of the premises on Monday, the 26th, in pursuance of their agreement, and that if defendant held the possession against the plaintiff on that day, he was a trespasser. The defendant excepted to this opinion, and moved for a new trial, which the court overruled.

      Blackwell, for appellant.

      Mills, for appellee.
   Opinion of the Court by

Justice Smith.

This was an action of trespass, for breaking and entering the close of the plaintiff. This case presents for consideration this question, whether persons may make a subdivision of time for the exclusive occupancy of the whole of a tract of real estate ?

Joint tenants may make subdivisions of premises, and of the occupancy thereof, and may maintain several actions. According to this decision, it is thought that the subdivision of time'for the occupancy is analogous, and may be legally done. The premises in question were alternately occupied by Swearingen, and another person of the name of Smith, a joint owner of two-thirds of the premises with Swearingen.

Smith occupied for two weeks, and Swearingen for one, in succession. From the evidence, it appears that Swearingen came into his possession by the locking of the gate of the mill, on the last evening of Smith’s two weeks, by his agent. The holding of possession, therefore, under color of the previous entry under Smith, whose right expired with the two weeks, was tortious, and the court below properly instructed the jury that Curtis was a trespasser.

The offer to give in evidence the three executions against Swearingen, was, we think, properly rejected; there was no offer to show a judgment, and the regularity of the sale, and it is not pretended that any deed was ever executed by the sheriff to Curtis, as the purchaser of the premises in question. I am of opinion the judgment should be affirmed. ,

Judgment affirmed.

         A sheriffs deed can not be given in evidence without producing the judgment and execution under which the sale was made; without them, the sheriff has no authority to sell. Den v. Wright et al., 1 Peters’ C. C. Rep., 64.

       The general doctrine in regard to the sale of land by a sheriff is, that his deed is inadmissible in evidence, unless the judgment and execution under which the sale was made, be produced, to show the sheriffs authority to sell. Bybee v. Ashby, 2 Gilm., 163. Davis v. McVickers, 11 Ill., 329.

        The act of February, 1841, (Purple’s Statutes, 646, sec. 21; Scates’ Comp., 609,) provides that the sheriff's deed shall be evidence that the provisions of law in relation to sales of land on execution were complied with, until the contrary be shown; but this does not dispense with the necessity for the production of the judgment and execution, which are still necessary before the deed can be read in evidence. Bylee v Ashby, supra.
      When land is sold on execution, and a sheriff's deed thereon is executed, but no judgment is shown to support such execution, no title passes to the purchaser. In this case the execution described the judgment as having been rendered in 1844. The judgment offered was rendered in 1843. The variance was held to be fatal. Pickett v. Hartsock, 15 Ill., 283.
      A sheriff’s deed must convey the land levied on and sold; and if the levy is so uncertain in its description of the premises levied upon, that it can not be understood what they are, the sale will be void. The deed can not remedy it. Fitch et al. v. Pinckard et al., 4 Scam., 84.
      There should be entire uniformity in the return to the execution, the certificate of sale, and the deed, where real estate is sold by the sheriff, or the deed will be invalid. Dickerman et al. v. Burgess et al., 20 Ill., 266.
      A certificate of sale by a sheriff to another person than the purchaser, as shown by his return to the execution, is a void act. Id.


text:
    Eli B. Clemson, Plaintiff in Error, v. Henry Kruper, Defendant in Error.
    ERROR TO ST. CLAIR.
    A refusal to grant a new trial can not be assigned for error.

    A bill of, exceptions can not be taken, unless the exception be made on the trial, and before the jury is discharged, and it lies for receiving improper, or rejecting proper testimony, or for misdirecting the jury on a point of law.

       See note to Sawyer v. Stevenson, ante. p. 24.

       The object of a bill of exceptions is to place upon the record some fact, or ruling of the court, which would not appear without it. But where the question already appears on the record, a bill of exceptions is unnecessary. Thus, a bill of exceptions taken to the overruling of a demurrer is improper; the point saves itself; the judgment is part of therecord. Hough v. Baldwin, 16 Ill., 293. Hawk v. McCullough, 21 Ill., 220. Kitchell v. Burgwin et ux., id., 40. Swift et al. v. Castle, 23 Ill., 209. Van Dusen v. Pomeroy, 24 Ill., 289.
      Where a motion is made for a new trial on the ground that the verdict is contrary to evidence, it will not be considered in the supreme court, unless the bill of exceptions contains all the evidence. Wheeler v. Shields 2 Scam., 350. Rogers v. Hall, 3 Scam., 6. McLaughlin v. Walsh, id., 185. Stickney et al. v. Cassell, 1 Gilm., 420. Rowan v. Dosh, 4 Scam., 460. Bruce v. Truett, id., 455. Culbertson v. Galena, 2 Gilm., 131. Granger v. Warrington, 3 Gilm., 310. Webster v. Enfield, 5 Gilm., 302. Buckmaster v. Cool, 12 Ill., 76. Armstrong v. Cooley, 5 Gilm., 512. 2 Scam., 506. Id., 256. 3 Scam., 381. 4 id., 33, 60. 5 Gilm., 186. 16 Ill., 138. Id., 277. Id., 390.15 Ill., 297. 17 Ill., 321. Trustees, &c. v Lefler, 23 Ill., 90.
      The supreme court will not examine any question that does not appear on the record, unless it is preserved in a bill of exceptions. Burlingame v. Turner, 1 Scam., 588. Thomas v. Leonard, 4 Scam., 557. Lyon et al., v. Boilvin, 2 Gilm., 629. Selby v. Hutchinson, 4 Gilm., 326. Petty v. Scott, 5 Gilm., 209. Eaton v. Graham, 11 Ill., 620. McBain v. Enloe, 13 Ill., 78. Moss v. Flint, id., 572. Reeve v. Mitchell, 15 Ill., 297. 3 Scam., 381. Id., 411. 4 Scam., 419. 2 Gilm., 728. 3 id., 366. 5 id., 126. 11 Ill., 586. 12 Ill., 380. 15 Ill., 329. 24 Ill., 187, 262, 598.
      Where a default is taken against a defendant, he may cross-examine the plaintiff's witnesses, but can not take a bill of exceptions. Morton v. Bailey et al., 1 Scam, 215. Should improper testimony be allowed, or wrong instructions given, the proper course is to apply to the court to set aside the inquisition, and grant a new inquest. Ibid.
      When a party voluntarily takes a nonsuit, he waives his right to except. Barnes v. Barber, 1 Gilm., 405. The People v. Brown, 3 Gilm., 88. The exception must be taken at the time the decision is made which is complained of: thus, for giving improper instructions, it must be when the instructions are given; it is too late after verdict. Leigh v. Hodges, 3 Scam., 17. Vanderbilt v. Johnson, id., 49. Gibbons v. Johnson, id., 63. Hill v. Ward, 2 Gilm., 293. Dickhut v. Durrel, 11 Ill., 84. Id., 587. Martin v. The People, 13 Ill., 342. Dufield v. Cross, id., 700. Charlesworth v. Williams, 16 Ill., 338. Armstrong v. Mock, 17 Ill., 166. Hance v. Miller, 21 Ill., 636.
      Although the exception must be made at the time of the error complained of, it is not indispensable that it should be committed to writing at that time. It may be done at a future time by the agreement of parties, or by an order of the court, entered on the record. Evans v. Fisher, 5 Gilm., 456. Burst v. Wayne, 13 Ill., 666. 23 Ill., 416. 24 id., 43.
      If a judge refuses to sign a bill of exceptions when properly presented to him, the Supreme Court will, by mandamus, compel him to sign it. Bristol v. Phillips, 3 Scam., 287.

   Opinion of the Court by

Justice Lockwood.

Kruper, the plaintiff below, brought an action of assumpsit in the St. Clair circuit court. The defendant below plead non assump sit, and issue was thereon joined. On the trial a verdict was found for Kruper.

A motion was then made for a new trial which was overruled, and a bill of exceptions, containing the evidence given on the trial, was taken to the opinion of the court overruling the motion for the new trial. Judgment having been rendered on the verdict, a writ of error has been brought to this court to reverse the judgment, and the error relied on is, that the court below erred in overruling the said Clemson’s motion for a new' trial, on the ground stated in the bill of exceptions, and because the damages were excessive.” It is objected on the part of the defendant in error, that refusing to grant a new trial can not be assigned for error.

This objection, the court think, well taken, both on the score of adjudged cases, and on principle. A bill of exceptions can not be taken, unless the exception be made on the trial, and before the jury is discharged, and it lies for receiving improper or rejecting proper testimony, or misdirecting a jury on a point of law. The bill of exceptions taken in this case was not for any decision that occurred during the progress of the trial, and was therefore improperly allowed.

If this case had come before the court in a correct form, they are rather inclined to the opinion that the defendant below ought to have had a new trial, but as it is unnecessary to decide this point, they have not made up a definitive opinion on the subject.

As the court are of opinion that the bill of exceptions was not correctly taken, to relax the rule in a real or supposed hard case, would be establishing an innovation in the proceedings of courts that would in practice prove extremely inconvenient, if not dangerous. If, however, the decision of the court below has worked serious injustice to the defendant, it is possible a court of equity, upon a proper case, might grant relief. The court, therefore, barely suggest, without deciding the point, if the counsel for the defendant misapprehended the law or practice in relation to taking bills of exception, that it might afford ground for granting a new trial by a court of equity. The judgment must be affirmed with costs,

Blackwell, for plaintiff in error.

Cowles, for defendant in error.

Judgment affirmed.

         Cases of new trials. Sawyer v. Stephenson, p. 24. Cornelius v. Boucher, p. 32. Collins v. Claypole, post. Street v. Blue, post.
      No bill of exceptions is valid which is not for matter excepted to at the time of the trial. It is not necessary that the bill of exceptions should be formally drawn and signed before the trial is at an end; it is sufficient if the exceptions be taken at the trial and noted by the court with the requisite certainty, and it may after-wards, during the term, according to the rules of the court, be reduced to form and signed by the judge. In all such cases, however, the bill of exceptions is signed nunc pro tunc, and it purports on its face to be the same as if actually reduced to form and signed, pending the trial, and it would be a fatal error if it appeared otherwise. Walton v. United States, 9 Wheat., 651.
      An exception to the opinion of the court is necessary only, when the alleged error can not otherwise appear on the record. Macker’s heirs v. Thomas, 7 Wheat., 530.


text:
    Augustus Collins, Appellant, v. Abraham Claypole, Appellee.
    APPEAL FROM MADISON.
    A refusal to grant a new trial can not be assigned for error.
   Opinion of the Court by

Chief Justice Wilson.

The first question, and the only one necessary to be decided in this case, is, whether the refusal to grant the new trial asked for is ground of error. That point has been settled in the case of Clemson v. Kruper.

The court was unanimously of opinion in that case that it was not a ground of error. This case depends upon the same principle, and must be decided in the same way.

Judgment to be affirmed as of the last term.

Judgment affirmed.

       Justices Lockwood and Smith gave no opinion,

         Sawyer v. Stephenson, page 24. Cornelius v. Boucher, page 32. Clemson v. Kruper, ante, p. 210.