author: Justice Wilson.

text:
    The President and Directors of the State Bank, Plaintiffs in Error, v. John Kain, Defendant in Error.
    ERROR TO FAYETTE.
    Tho receipt of the cashier of the State Bank, for money received of an-individual, is evidence of a deposit by that individual, and the cashier had a right to receive such deposits.
   Opinion of the Court by

Justice Wilson.

The only question presented in this case for the opinion of the court is— whether the receipt of Kelly, the cashier of the Bank, is evidence of a deposit in the Bank. It is said that it is not, because lie was not authorized by the letter of the law, nor by any order of the Board of Directors of the Bank, to receive money on deposit. It is conceded that he might receive state paper on deposit, but not gold or silver, because the language of the law is, that “the Bank shall at all times receive money on deposit,” &c. The word Bank is not made use of here to designate the house, the cashier, or the directors, but the institution generally; and the cashier is the officer or agent of the institution, with authority derived from the law, and the nature of this, as well as of every other Bank is, to receive money on deposit, receipt for the same, enter it upon the books of the Bank, and pay it out again when called for, without compensation. Tho question whether the directors can control the cashier is not involved in this case. From this view of the case, the court is of opinion that the judgment below ought to be affirmed,

Blackwell, for plaintiffs.

Kane and McRoberts, for defendant.

Judgment affirmed,.

         The acts of a cashier of a Bank, done in the ordinary course of the business actually confided to such an officer, are prima facia evidence that they were within the scope of his duty. Fleckner v. Bank of United States, 3 Wheat., 338.


source: Caselaw Access Project

author: Chief Justice Reynolds.

license: Public Domain

text:
    Richard Ackless, Appellant, v. Timothy Seekright, ex dem. of the heirs of George Lunceford, deceased, Appellee.
    APPEAL FROM MONROE.,
    By the ordinance of 1787, but two of the subscribing witnesses to a will are required to prove it, and a will attested by three, one of whom is a devisee in the will, is valid.
    M. devised and bequeathed by will, all his estate to his daughter, R., but if she died before she became of age, then to his friend G-. S. R. died before she came of age, and Gr. S. died before R. It was held that the devise to Gr. S. was a good executory devise, and that the estate passed to his heirs.
   Opinion of the Gowrt by

Chief Justice Reynolds.

This was an action of ejectment, commenced by the defendant here in the court below, to recover the possession of certain lands lying in the county of Monroe. The ability with which this case was argued, and the magnitude of the claim, has induced this court to bestow more time on its investigation than in any ordinary case. Four errors have been assigned as causes for reversing this judgment, and if either of them is well taken, the plaintiff in error must prevail.

1. The will set out in the record was not legally attested by three witnesses, one of the witnesses being a devisee.

2. The will was not proved according to law.

3. By the will, George Lunceford took nothing.

4. The contingency upon which the devise was to take effect did not happen.

We will consider these questions in the order in which they are presented: and 1. The will was not legally attested by three witnesses, one of the witnesses being a devisee. Without deciding how far this would affect the validity of a will where it was required that three “ subscribing”, witnesses should prove it, it is a sufficient answer, that by the law which governs in this case, but two of the subscribing witnesses are required to establish the execution of a will, and when thus proven, is good to all intents and purposes: 2.

The will was not proved according to law. In answer to this objection, the court need only add, that the will was proven by two competent witnesses, (the said devisee not being one of them) before the proper officer, and in such manner as comported with the statute. Having disposed of the two first errors assigned, the court will consider the two last together. Daniel McCann, by his last will and testament, dated the 27th day of January, 1806, after ordering his legal debts to be paid, devised his estate as follows:.

“I give and bequeath all my residue and remainder of my personal and real estate, goods, chattels and credits, and lands, and tenements, and hereditaments of what kind and nature soever, to my beloved daughter, Rebecca, and it is my further will and desire, that should the Almighty take away my said beloved daughter, Rebecca, before she comes of age to receive the said legacy, then and in that case the same personal and real estate to return to my beloved friend George Lunceford, to whom I bequeath the same on the proviso above mentioned.”

George Lunceford, the executory devisee, was by said will appointed one of the executors, and died in the year 1808. The testator died in possession of the premises in the year 1806. Rebecca McCann, the devisee, died in the year 1815 or 1816, and under the age of twenty-one years. It was contended for by the counsel for the plaintiff in error, that by the devise to Rebecca McCann, she took an estate in fee simple, "and that therefore the limitation over to George Lunceford was void, being repugnant to the previous estate granted, and in support of this position the case of Jackson v. Robbins, 16 Johns. Rep., p. 537, was cited and relied upon. We have examined this case minutely, but can not say it will warrant this conclusion. One of the principles there decided, grew out of the effect to be given to lord Sterling’s will. He devised his estate to his wife, and then said, “in case of the death of my wife without giving, devising, and bequeathing by will or otherwise, selling or assigning the estate or any part thereof, he doth give and devise all such estate as should so remain unsold, undevised, or unbequeathed, to his daughter, lady Catharine Duer.” This limitation over was there adjudged (whether considered as a remainder or as an executory devise) bad. That case differs materially from the one before the court. In the first, an express power was given to lady Sterling to dispose of the estate in such manner as she should think proper. In the lattes no such power is given to the first taker, but the interest of the executory devisee is made to depend entirely upon the contingency of the first taker dying before she “ becomes ” of age to receive the legacy. This power of disposing of the estate given to the first taker, has been considered even from the time of lord Coke, as carrying the absolute fee, except when coupled with a life estate; then it is said, that a power to sell creates no greater interest. If the power of absolute disposal had been given to Rebecca McCann, we might well question the validity of the limitation over, for the very essence of an executory devise, consists in the inability of the first taker to destroy it by disposing of the estate devised. In the emphatic language of the books, it can not be created, and it can not live under such a power in the first taker.

Hence, and hence only, do we account for the decision in the case referred to in 16 Johns. Rebecca McCann surely took a fee, but a fee conditional, subject to be defeated upon her dying before she arrived at full age, and not as was supposed by the counsel, a fee absolute.

There is no doctrine better settled than that a fee may be limited after a fee, and this happens, says justice Blackstone in his second Vol. Com., p. 172, “ when a devisor devises his whole estate, in fee, but limits a remainder thereon to commence on a future contingency, as if a man devises land to A. and his heirs ; but if he dies before the age of twenty-one, then to B. and his heirs, this remainder, though void in a deed, is good by way of executory devise.” See 12 Mod., 287. 1 Vern., p. 164.

Another very strong case is reported in second Wilson, p. 29, Goodright, ex. dem, &c., v. Searle and wife. The devise was to P., his heirs and assigns forever, but if he should die before he should attain the age of twenty-one years, leaving no issue at the time of his death, then the same was devised to C., her heirs and assigns forever. This the court held to be a good executory devise, and surely the words of inheritance are equally as strong as in the case before the court. Having disposed of this branch of the subject, we will next inquire whether the circumstance of George Lunceford dying before the contingency happened upon which he was to take, destroyed his interest, and if not, whether he had such an interest as would descend to his heirs at law. As evidence that at common law, contingent remainders and executory devises are transmissible and will descend to the heirs of the person to whom they are limited, although he chance to die before the contingency happens, (without further reasoning) the court refer to Pollexfen, 54; 1 Rep., 99; Cas. Temp. Talbot, 117; 7 Cranch, 469; P. Williams, 564; 2 Munford, 479. Let the judgment below.be affirmed and the defendant recover his costs,

Kane, for plaintiff.

Starr and Baker, for defendant.

Judgment affirmed.

         4 Kent’s Comm., 257 to 275, as to the history, variety, qualities, &c. of executory devises.


text:
    David Everett, Appellant, v. William Morrison, Appellee.
    APPEAL FROM ST. CLAIR,
    An undertaking by parol by which a third person obtains credit, is collateral, within the statute of frauds and perjuries, and not binding.
    This case came into the circuit court of St. Clair county by appeal from the judgment of a justice of the peace in favor of Everett against Morrison. The circuit court reversed the judgment of the justice and gave judgment in favor of Morrison, and from which Everett appealed to this court. The bill of exceptions taken on the trial in the circuit court, presents the following state of facts: William Padfield, a witness sworn on the part of Morrison, stated that in August, 1817, he was selling goods as agent for Morrison, at witness’ house in St. Clair county—that Bailey applied to witness to purchase goods on credit, which was refused. Bailey then produced Everett, who agreed to go Bailey’s security for the amount of goods Bailey wanted, with which agreement witness was satisfied, and sold to Bailey goods out of the store to the amount of the account sued on, to wit:

      “August 9, 1817.
    Isaac J. Bailey, Dr.
    To William Morrison,
    Eor goods delivered by William Padfield—David
    Everett, security. .... $46.50
    William Padfield, sen’r.
    Witness told Everett that he would charge the goods to "Bailey, and set him, Everett, down as security, which he accordingly did by charging the goods to Bailey in a book, and placing the name of “ David Everett, security,” at the top of the account. Witness stated that he would not have given credit to Bailey for the goods, but sold them on the credit of Everett. The goods were sold on a credit of four or six months. Bailey remained in the county about eighteen months after the sale, but no attempt was made by Morrison to coerce payment from him. On the part of the defendant it was proved that sometime in the summer of 1819, at the house of Padfield, Everett told Padfield that Bailey was then in St. Clair county, and had property enough to pay the debt, and desired Padfield to coerce payment; and Robert Thomas proved that early in that summer he was at Padfield’s and saw Bailey there with a valuable horse, which witness knew to be'the property of Bailey, and that Bailey also had a wagon load of flour, &c. Everett also offered in evidence this receipt: '

      “August 28, 1819.
    Received of David Everett, $16.25, the amount of his account in the store at my house.
    William Padfield,
    for William Morrison.”
    The witness, Padfield, testified that that receipt embraced only Everett’s private account. This was all the evidence in the cause ; upon which Everett insisted that his undertaking being by parol, was within the statute of frauds and perjuries, and not binding. The court, however, gave judgment for Morrison, to reverse which Everett appealed, and assigned for error the misdirection of the court in deciding that he was liable on the undertaking as above set forth.
   Opinion of the Court by

Justice Wilson.

The judgment of the court below is reversed, because it appears that the undertaking of Everett was only collateral, and as such, came within the statute of frauds and perjuries.

To this opinion of the court, Justice John Reynolds dissents., and delivers the following opinion.

The bill of exceptions in this case presents a state of facts not very satisfactory. It is really difficult to know if Everett be the security of Bailey or the principal in this transaction. But from the best consideration I am capable of bestowing on this case, I conclude that Everett was the person to whom the credit was given, and therefore liable. The witness states expressly that he would not give credit to Bailey, but that the credit was given to Everett, yet in the same deposition he says, Everett was the security of Bailey, and the charge is so made. There being no writing in the case, it was contended that Everett was not" liable, as it was within the statute of frauds and perjuries. I am of opinion, according to the whole state of facts as shown, that Everett is liable,

Blackwell, for appellant.

Kane, for appellee.

Judgment reversed.

         Where the promise is an original undertaking it need not be in writing. 2 Johns, cas., 52. Where the promise to pay the debt of another is made at the same time with the contract to which it is collateral, it is incorporated into it and becomes a part of it—the whole is one entire contract, and the want of consideration, as between the plaintiff and the guaranty can not be alleged. 8 Johns., 29. If the whole credit is given to the person who comes in to answer for another, his undertaking is not collateral. Ibid. Per. Kent, Ch. Just.

       Parties may make valid contracts, though not in writing, to pay the debt of another; but the new or original contract must be declared on; and this must be founded on a new and original consideration moving to the party making the promise, and the debt of the original debtor must not be the consideration for the promise. Hite v. Wells, 17 Ill., 88. See Scott v. Thomas, 1 Scam., 59.
      A promise made by A. to B. to pay a debt which B. owes to C. is not within the statute of frauds. Prather v. Vineyard, 4 Gilm., 40. Eddy v. Roberts, 17 Ill., 505. Brown v. Strait et al., 19 Ill., 88. Bristow et al v. Lane et al., 21 Ill., 194.
      A verbal contract, not to be performed within a year, will not sustain an action. Comstock v. Ward, 22 Ill., 248.
      The statute of frauds is presumed to have been pleaded in an action before a justice of the peace. Id.
      The statute of frauds in reference to parol contracts for the sale of lands, if relied on as a defense, must be pleaded, otherwise it will be held to be waived. Lear v. Choteau et al., 23 Ill., 39.


text:
    Charles W. Hunter, Plaintiff in Error, v. Samuel Gilham, Defendant in Error.
    ERROR TO MADISON.
    Under the practice act of 1819, bail bonds should be taken to the sheriff and suits on them should be brought in his name. The act gives him no power to assign them to the plaintiff in the action.
    Hunter brought an action of debt in the Madison circuit court, against Gilham, on two bail bonds executed by Gilham to the sheriff of Madison county, in cases in which Hunter was plaintiff. The defendant demurred generally to the declaration, which the court sustained, and Hunter brought his writ of error to reverse that judgment, assigning for error, the sustaining the demurrer.
   Opinion of the Court by

Chief Justice Reynolds.

The thirty-fourth section of the act entitled “An act regulating the practice in the supreme and circuit courts of this state, and for other purposes,” approved March 22d, 1819, authorizes the sheriff to take bail bonds to “ himself.” Such was the fact in this case. The bail bonds were taken in the name of the sheriff. The sheriff and the defendant were the legal parties to the bonds, and there being no law of this state authorizing the sheriff to assign such bonds to the plaintiff in the judgment, the action should have been commenced in the name of the sheriff, and not in the name of Hunter, who was no legal party to the bonds. The judgment below must be affirmed, and the defendant recover his costs.

Starr, for plaintiff.

Smith, for defendant.

Judgment affirmed.

      Laws of 1819, p. 148, sec. 34.

       The statute now provides that when a bond is taken to the sheriff as in this case, the bail “ may be proceeded against by an action of debt, in the name of the plaintiff in the original action, as in the case of a recognizance of bail.” Purple’s Statutes, p. 124, sec. 4. Scates’ Comp., 237.


text:
    James & Paris Mason, Plaintiffs in Error, v. Christian Eakle, Defendant in Error.
    ERROR TO MADISON.
    A contract to pay a sum. of money with twenty per cent, interest, is merged in the judgment rendered upon such contract, and the judgment is then controlled by the statute and not by the contract.
    An execution issued upon such judgment for “ twenty per cent, interest from its rendition,” will be quashed.
   Opinion of the Court by

Chief Justice Reynolds.

The only error assigned in this case is, that the court below erred in refusing to set aside an execution which had issued in favor of the defendant, against the plaintiffs. It was agreed upon the argument, that the note upon which judgment was rendered, stipulated for the payment of twenty per cent, interest.

The judgment was rendered for the amount of the principal, with the twenty per cent, interest to the time of the rendition of such judgment, but was silent as to any rate of interest thereafter to be recovered. The execution commanded the sheriff to make the amount of the judgment with twenty per cent, interest from the rendition of the judgment. The court are of the opinion that the court below erred in refusing to set aside the execution. The statute, it is true, makes legal any rate of interest for which the parties contract, but the statute also declares, that judgments shall bear but six per cent, interest. When a judgment is obtained upon a contract, that contract ceases to be, and is merged in the judgment, and the judgment is operated upon, and controlled, not by the contract, but by the statute.

The judgment must be reversed, the cause remanded with instructions to the court below to set aside the execution. The plaintiffs must recover their costs.

Starr, for plaintiff in error.

Smith, for defendant in error.

Judgment reversed.

       Affirmed in Pearsons v. Hamilton, 1 Scam., 415.


text:
    John T. Lusk, Appellant, v. Daniel P. Cook, Appellee.
    APPEAL FROM MADISON.
    In a suit by the assignee, against the assignor, seeking to recover on the ground that he has used due diligence to recover of the maker, the rule is, that he must show that he brought his action against the maker, at the first term of the court after the note fell due.
    A general demurrer to a narr. containing several counts, some of which are bad, and one good, ought not to be sustained.
    So too, when a count contains two distinct averments, one good and the other bad, the bad averment should be disregarded, as it does not vitiate the whole count—the rule is, “ utile, per inutile non vitiatur.”

    This was an action commenced by the appellant, the plaintiff below in the Madison circuit court, against Cook, upon his liability as assignor of two promissory notes. The declaration contained but one count, and avers, 1. That the maker of the note was, at the time it became due and payable, insolvent and unable to pay it, and so continued to the commencement of the suit: 2. A showing of due diligence by suits to enforce payment, and the prosecution of the maker to insolvency. There was a general demurrer to the declaration, which the court sustained, and gave judgment thereon for the defendant. The only error assigned is that which questions the.correctness of the judgment of the court below, sustaining a general demurrer to the declaration.
   Opinion of the Court by

Chief Justice Reynolds.

The second averment in the declaration, is an attempt to show the use of due diligence by suits to enforce payment of the maker, and prosecuting him to insolvency. This averment can not be considered sufficient, for the reason that the plaintiff has not availed himself of the earliest means which the law afforded him, but suffered himself to sleep until one or two terms of the court had elapsed after the notes became due, before prosecuting his suits against the maker. The law is, that where the assignee seeks to recover of the assignor, on the ground that he has used due diligence to obtain the money of the maker, but has failed, he must show that he commenced his action against the maker, at the first term of the court, which happened after the note became due, provided there be proper time for the service and return of the writ.

As to the first averment, the court has nothing further to say, than what was said in the ease of Thompson v. Armstrong, ante., page 48.

They have neither seen or heard any thing that has induced them to disturb that opinion. The two cases are entirely apposite. The first averment then, must be deemed to contain a good cause of action, and the demurrer being a general one, ought to have been overruled. There is no principle in pleading better settled than when a declaration contains several counts, one of which is good and the others bad, that a general demurrer to the whole declaration can not be sustained. So too, where a count contains two distinct averments, one of which gives a cause of action and the other does not, the bad averment must be regarded as immaterial, and does not vitiate the whole count or declaration, and a general demurrer thereto ought not to be sustained.

We have shown that the second averment in the declaration does not constitute a sufficient ground of action, and therefore is not, according to the technical doctrine of the law, double. It must be esteemed as surplusage, and wholly immaterial, and the defendant below should have disregarded it and taken issue upon the first averment, which is the substantive cause of action, as determined in the case before cited, the rule being that utile per inutile non vitiatw. The judgment below must be reversed and the cause remanded, with liberty to the defendant to withdraw his demurrer and take issue upon the first averment in the declaration.

Smith and Starr, for appellant.

Lockwood, for appellee.

Judgment reversed.

       See note to the case of Mason v. Wash, ante, p. 39.

       Affirmed in Stacy v. Baker, 1 Scam., 421. Cowles v. Litchfield, 2 Scam., 356. Fitch v. Haight, 4 Scam., 52. Prather v. Vineyard, 4 Gilm., 40. Young v. Campbell et al., 5 Gilm., 82. Israel v. Reynolds, 11 Ill., 218. Governor of Illinois v. Ridgway, 12 Ill., 15. Stout v. Whitney, id. 231. Walter v. Stephenson, 14 Ill., 77. Anderson v. Richards, 22 Ill., 217. Tomlin v. T. and P. R. R. Co., 23 Ill., 429.

         Where there is a demurrer to the whole declaration, but one count is good, the plaintiff must have judgment. Whitney v. Crosby, 3 Caine’s Rep., 89, id. 263.

       Vide Thompson v. Armstrong, p. 48. Mason v. Wash, p. 39. Tarlton v. Miller, p. 68.


author: Justice John Reynolds.

text:
    The Administrators, Widow, and heirs of T. Ernst, deceased, Plaintiffs in Error, v. The President and Directors of the State Bank of Illinois, Defendants in Error.
    ERROR TO FAYETTE.
    A debt due the State Bank secured by mortgage, is a debt due the state, which the state can release.
    Ferdinand Ernst, in his lifetime, on the 31st day of August, 1821, and Mary Ann his wife, made their mortgage to the defendants, to secure the payment of eight hundred dollars, twelve months after the date, according to the tenor of a certain note made by Ernst on that day, for the use of the people of the state of Illinois. This mortgage not being satisfied, nor the money secured thereby paid, the defendants in error sued out of the circuit court of Fayette county, a writ of scire facias on the mortgage. At the return term of the scire facias, the plaintiffs in error appeared and pleaded a release of the mortgage debt, by an act of the general assembly of this state, entitled “ An act to authorize the administrators of F. Ernst to sell certain real estate.”
    To this plea there was a demurrer and sustained, and judgment for the mortgage debt.

      Starr, for the plaintiff in error
    contended, first, that it was competent to the legislature to release and discharge the mortgage debt; and second, the bank was nothing more than a trustee for the people, and the cestui que trust may release a debt due to the trustee.

      Blackwell, contra.
   Opinion of the Court by

Justice John Reynolds.

This was a scire facias upon, a mortgage. Ernst, in his lifetime, loaned from' the state bank of Illinois, eight hundred, dollars, and to secure the payment of that sum, executed the mortgage deed, as alleged in the scire facias. The bank obtained judgment in the circuit court of Fayette county against the plaintiffs in error, to have the mortgaged premises sold, and to reverse that judgment this writ of error is prosecuted.

In the court below the plaintiffs in error pleaded a statute passed Feb. 18, 1823, by the general assembly of this state, in bar of this demand. To this plea there was a demurrer, which presents to the court the statute above referred to.

On a full and correct examination of the above recited act, it appears to the court to embrace this case. It was the intention of the legislature to release the estate of Ernst, from all debts due the state. The above debt is due the state. The judgment of the court below must be reversed at the costs of the defendants in error,

Judgment reversed.

       Laws of 1823, page 177.

         The part of the act of 1823 referred to, is as follows: “And the estate of the said E. Ernst, deceased, is hereby released from the payment of any debt due by said estate to this state.” Laws of 1823, page 178.
      The act establishing the state bank, at page 85, (laws of 1821) requires that the notes and mortgages shall be made “ payable to the president and directors ” of the bank, “ for the use of the state.”


author: Justice Smith.

text:
    Richard W. Chandler, Plaintiff in Error, v. John H. Gay, Defendant in Error.
    ERROR TO ST. CLAIR.
    The circuit court can not arrest or interfere with the proceedings on an award where the submission has been by bond or rule of court, except for the causes expressly stated in the statute, to wit: that the award was obtained by “fraud, corruption, or undue means.”
    It is error for the circuit court to enter up a judgment on an award. The proper course is, under the statute of 1819, for a rule of court to be entered up on filing the submission and award, requiring the parties to abide by the award. A disobedience to this rule would be a contempt. (See act of 1827, Rev. Laws, p. 64.)
   Opinion of the Court by

Justice Smith.

This was a proceeding under a statute of this state, authorizing and regulating arbitrations, approved 25th February, 1819. The plaintiff in error applied, in the court below, by his counsel, to set aside the award made in this case, on the ground of uncertainty, want of mutuality, as not embracing the matter submitted, and as not final. ■

He gave the defendant here, notice in the court below, of his intention to make such application. It appears that the circuit court entertained this motion, though after hearing it overruled the same, and directed the bond and award to be. filed; confirmed the award, and made it a judgment of the court, and that Gay should recover the sum of thirty-eight dollars and seventy-five cents.

The statute under which these proceedings were, as it is contended, correctly taken, provides “ that the submission of the parties may be made a rule of court, and after making an award, a true copy thereof shall be delivered to each of the parties, and if either of the parties refuse or neglect to obey the award or umpirage, the other party may return the same with the submission or arbitration bond, and the same award or umpirage so returned shall be entered on record and filed by the clerk, and a rule of court thereupon made, and after such rule is made, the party disobeying the same shall be liable to be punished for a contempt of court on motion, and that process shall issue accordingly, which process shall not be stayed or impeded by order of any court of law or equity, until the parties shall in all things obey the award or umpirage, or unless it shall be made to appear on oath, that the umpire or arbitrators misbehaved, and that such award or umpirage was obtained by fraud, corruption or other undue means: provided, that before such rule shall be granted, the party moving therefor shall produce to the court satisfactory evidence of the due execution of the arbitration or submission bond, and that the party refusing or neglecting to obey the award or umpirage, hath been furnished with a true copy thereof.”

It is alleged for cause of error, that the court below erred in not setting aside the award for the reasons set forth in the notice of the plaintiff of his motion, and in rendering judgment for the defendant in error on the award, before deciding on the said motion of the plaintiff in error.

The force of the reasoning of the counsel, is not perceived, as to the error of the court below, in deciding on the application to file the arbitration bond—and award, before pronouncing an opinion on the motion of the counsel in the court below to set aside the award; nor can it be perceived why the judgment can be erroneous, if warranted by the statute, because of the order of precedence given to it over a motion clearly cor am non judice. It is very apparent that the application by notice and motion, before the filing of the submission or arbitration bond and award, was wholly irregular, there being no record or evidence in the court below of any proceedings upon which to base such notice and motion.

The statute in question has very clearly provided the mode and order of proceeding, and had the present plaintiff desired to have resisted the filing of the bond and award, he could have done so at the time of the application to file it, and have shown to the circuit court the causes on which he predicated such resistance.

If the reasons assigned came within the causes of objection recited in the statute, it would have been the duty of the court to have suspended the entry of the rule on the submission and award, and if satisfied by evidence, that the award had been produced by fraud, corruption or other undue means, to have arrested the proceedings or quashed the award.

The language used in the act forbids the idea that the circuit court could arrest the proceedings, or interfere therewith, except for the causes expressly therein stated, and the same prohibitions extend equally to this court unless for manifest error appearing in the record.

Thus far then, it is not perceived but what the proceedings on the part of the defendant in error were correct, but it is an important inquiry in this case to ascertain the nature and extent of the order taken and entered upon filing the 'submission or arbitration bond and award.

The circuit court, it appears, confirmed the award, declared it to be a judgment, overruled the motion to set aside the award, and adjudged that Gay should recover against Chandler thirty-eight dollars and seventy-five cents, as awarded.

Is this entry of the judgment in conformity with the provisions of the statute ? If not, was the court authorized to enter such judgment ? Will it be contended that the judgment is the one contemplated by the statute ? The statute, it will be seen, directs a rule of the cpurj; to be entered on filing the submission and award, leaving it uncertain, it is true, as to the precise form of that rule, or its extent.

For in the sentence immediately following, it declares that the party disobeying such rule, after it is made, shall be liable to be punished for a contempt. The only rational construction then, of the terms of the statute, must be, that the rule to have been made, should have been one directing a compliance with the award, leaving the party to his remedy in case of refusal, by attachment for contempt.

The court are therefore of opinion that the decision of the court below confirming the award be affirmed, and that so much thereof as declares it to be a judgment of the court directing the recovery of the sum of thirty-eight dollars and seventy-five cents, being erroneous and not warranted by the statute, be reversed. The cause is remanded to the circuit court with leave to the defendant in error to perfect his proceedings agreeable to the provisions of the statute, and that each party pay one-half of the costs of the proceedings in this court, ,

         Duncan v. Fletcher, post. Cromwell v. March.

       By the statute now in force in this state it is enacted (after providing the manner in which arbitrations may be entered into,) that the parties “may in such submission, agree that a judgment of any court of record competent to have jurisdiction of the subject matter, to be named in such instrument, shall be rendered upon the award made pursuant to such submission.” Purple’s statutes, p. 88, Sec. 1. Scates’ Comp., p. 209.
      By virtue of this statute if the submission and award are in pursuance of it, and the submission so provides, a judgment may be entered on the award. Low v. Nolte, 15 Ill., 368; Thorpe v. Starr, 17 Ill., 199.
      A judgment on an award can only be entered by a justice of the peace when it is on a suit pending before him, and is by the parties referred to arbitrators. Weinz v. Dopler, 17 Ill., 111; Shirk v. Trainer, 20 Ill., 301.
      A parol submission and award are binding in aU cases except where a writing is required to pass the title to the thing in controversy. Smith v. Douglass, 16 Ill., 34.
      If there is neither fraud or misconduct on the part of the arbitrators, the award is final. Merritt v. Merritt, 11 Ill., 565; Root v. Renwick, 15 Ill., 461; Ross v. Watt, 16 Ill., 99.
      Unless the submission requires it, it is not necessary that an award should be published, or that notice of it should be given to the parties. Nor need it be in writing. Denman v. Bayless, 22 Ill., 300.
      An award must be so certain that it can be easily comprehended, and be carried into execution without the aid of extraneous circumstances. Howard v. Babcock, 21 Ill., 259.
      A court of equity may rectify a mistake of arbitrators, in omitting the name of the person from an award to whom certain land was to be conveyed, if the proof is clear and explicit as to what was intended by the arbitrators. Williams v. Warren, 21 Ill., 541.


text:
    Abraham Taylor and Benjamin Parker, Plaintiffs in Error, v. Thomas Kennedy, Treasurer, &c., Defendant in Error.
    ERROR TO CRAWFORD.
    A variance between the instrument declared on, and the one set out on oyer, is fatal on demurrer.
   Opinion of the Court by

Justice Smith.

This was an action on a security bond, given for the faithful performance of the duties of Taylor, one of the defendants, as a constable for the county of Crawford.

It is unnecessary to notice more than one of the several causes assigned for error. The declaration, in setting forth the bond, does not allege that the bond was executed on any particular day or month, but generally in the year 1819. Oyer of the bond being prayed and given, Shows the bond to have been executed on the day of 1825.

The defendants in the court below, after reciting the bond given on oyer, demurred to the declaration as insufficient. The question of variance is then the simple and only question to be decided. Was this omission of the recital of time in the declaration fatal ? On this point the court can not entertain a doubt.

The court need not enter into the reasoning which governs decisions on the subject of variance between the instrument set out in the declaration and the one offered on oyer, nor is it necessary to elucidate by comparison, that this was one essential in its character, and might be important in its bearing on the ultimate liability of the parties and in the decision of the cause.

The court are therefore of the opinion that the court below erred in overruling the demurrer, and that the judgment below ought to be reversed and that the plaintiffs recover their costs, ,

Judgment reversed.

        Connally v. Cottle; Rust v. Frothingham and Fort; Prince v. Lamb.

       As to craving oyer, see Sims v. Hugsby, post.; Bogardus v. Trial, 1 Scam., 63; Collins v. Ayers, 13 Ill., 362; Harlow v. Boswell, 15 Ill., 57; and note to Mason v. Buckmaster, ante, p. 27.
      A note was described in the declaration as being payable “ on or before,” &c.; the note offered in evidence was payable on the day named, and not on or before : Held that this did not constitute a variance between the declaration and the proof. Morton v. Tenny, 16 Ill., 494.
      Where a note offered in evidence differed in amount a half cent from the one declared on, it was held to be a variance, and that it could not be received in evidence. Spangler v. Pugh, 21 Ill., 85.
      Where an instrument is not truly described in its material parts, it can not be read in evidence under a special count. Higgins v. Lee, 16 Ill., 495.
      See also, Baxter v. Knox, 19 Ill., 267; Crittenden et al. v. French, 21 Ill., 598; Van Court v. Bushnell et al., id., 624; Freeman's Digest, p. 1317.


author: Justice Lockwood.

text:
    John Johnson, Appellant, v. Richard Ackless, Appellee.
    APPEAL FROM ST. CLAIR.
    The statute regulating appeals from a justice of the peace, in providing that no continuance shall be allowed to either party after the second term, was not intended to prohibit the court from taking such cases under advisement after the trial.
    In appeal cases, where the judge acts both as court and jury, a bill of exceptions taken after the judgment of the court is rendered, is regular and in time.
    This was originally a suit brought before a justice of the peace by Ackless against Johnson, and taken by Johnson by appeal to the circuit court of St. Clair county. From the bill of exceptions taken in the cause, it appears that the suit was brought before the justice to recover the sum which Johnson received of one Divers, for a certain tract of land, over and above the sum of four hundred dollars, and it was proved by the testimony of John Divers, that about three years ago Johnson had sued Ackless before Divers for a part of the purchase money which Ackless owed Johnson for a certain tract of land, for which land Ackless had before agreed to pay Johnson $800, and had paid $400, and that $400 remained unpaid. That at the trial before Divers, Ackless stated that he was unable to pay for the land, and would give up to Johnson what he had paid if Johnson would take the land and release him from paying the residue; that after some conversation Johnson agreed to Ackless’ proposition, and delivered up to Ackless the notes which Johnson held on him for the $400, the residue of the purchase money for the land, and Ackless delivered up to Johnson the bond he held on him for the title to it, and the contract of purchase was fully rescinded. Afterwards, and before the company separated, Johnson offered to sell the land, and called on the company to take notice that it vas his intention to give Ackless all he could get for the land over and above the sum of $400, and that Divers afterwards purchased the land of Johnson for $453, one "hundred and fifty of which was paid in cash, and the balance in horses. On this evidence, Johnson insisted that the testimony showed a naked contract, without any consideration to support it, but the court was of a different opinion and rendered judgment for Ackless, The attorney for Ackless protested against any bill of exceptions being presented at that term (August term, 1824,) for the reason that the evidence upon which the judgment was rendered was heard at August term, 1823 ; but this objection the court overruled.
   Opinion of the Court by

Justice Lockwood.

This is an appeal from the circuit court of St. Clair county. The cause originated before a justice of the peace, and was brought into the circuit court by appeal, the appeal was tried at the second term after taking of the appeal, but was not decided until the fourth term. The record states that the continuance after the trial was at the instance of the court, and because the court was not sufficiently advised what judgment to give. It is objected on the part of the appellee that the court had no power to continue this cause after the trial. This objection can not be entitled to any weight. The statute could only have intended to restrict continuances at the instance of one party when opposed by the other. And such has been the practice of the circuit courts ever since the state courts have been established. The plaintiff in the appeal had regularly brought and prosecuted his appeal, and it would consist neither with law nor common sense, that the delay of the court should defeat his appeal. Should, however, the objection prevail, the consequence would be that the judgment of the circuit court must be reversed. But for the reasons above given, the court do not consider it to be erroneous for the court to take cases under advisement after two terms have elapsed since the taking an appeal from the decision of a justice of the peace. The appellee also objects that the bill of exceptions was irregularly taken. The bill of exceptions was taken at the term judgment was pronounced. The appellant had no opportunity of taking it sooner, for until the decision he could not know that he should have any ground of exception. The court in the decision of appeals perform the duty both of court and jury, and until the case is decided it can not be known whether it will be necessary to except. The trial of appeals in the circuit court is an anomaly in the law, and the rules of taking bills of exceptions in ordinary trials by jury, can not apply. It therefore appears to the court that the bill of exceptions was properly taken. The only question on the merits of this case is, whether there was any consideration for the promise of the appellant. On this point the court can not for a moment entertain a doubt. The promise given in evidence was entirely gratuitous, it was a nude pact. The judgment therefore must be reversed.

Blackwell, for appellant.

Cowles, for appellee.

Judgment reversed.

       The cases of Swafford v. Dovener, 1 Scam., 165, and White v. Wiseman, id., 169, are cited in Freeman’s Digest, p. 1178, Sec. 13, as conflicting with this ease; but in the first of those cases the court refer to this case, and expressly say the question here decided is not the one presented there. But it is now settled by the act of 1837 in accordance with this decision. Purple’s Statutes, p. 824, Sec. 22 ; Scates’ Comp., p. 263. County of Crawford v. Spenney, 21 Ill., 290; Stevenson v. Sherwood, 22 Ill., 238.


text:
    More and Bates, Appellants, v. Bagley, Borer and Robbins, Appellees.
    APPEAL FROM GREENE.
    If a party neglects to make Ms defense at law, a court of chancery will'not relieve him.
   Opinion of the Court by

Justice Lockwood.

It appears from the bill exhibited in this cause, that an action was commenced before a justice of the peace on a promissory note, and that on the trial of the cause, the defendants offered to prove by their own oaths the fact, and called on plaintiffs below to disprove, that the consideration of the note was for the sale of an improvement on public lands. The bill also states that the justice overruled this defense, and gave judgment for the plaintiffs. Without intending to decide whether this defense ought to have availed the defendants if they had proved it, it is sufficient for this court to say, that the complainants have mistaken their remedy. The defense set up by the complainants before the justice was purely a legal one. Their only remedy, in case the justice decided erroneously, was to appeal to the circuit court. The complainants having neglected to avail themselves of this remedy, can not now ask the interposition of a court of equity. The allegation in the bill, that complainants could only prove the facts in what the consideration of the note consisted, either by their own oath, or the oath of the plaintiff, can be no reason for not prosecuting an appeal from the justice’s decision. Had an appeal been taken, the complainants could, by filing a bill of discovery, have obtained the necessary proof. In the case of Duncan & Lyon, 3 Johnson’s Chan. cases, 351, chancellor Kent says, that “ it is a settled principle that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report (of referees) by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” The decree below must therefore be reversed, ,

McRoberts, for defendants in error.

Decree reversed.

         The court of chancery will not relieve a party on the ground of his having proceeded to trial at law without sufficient evidence, when it was in his power to have obtained that evidence by a bill of discovery. 4 Johns. Rep., 510.

       It was said by the court in Propst v. Meadows, 13 Ill., 169, that “It is within the ordinary jurisdiction of this court to grant relief against judgments at law, either by granting new trials, or by perpetual injunction, if it shall appear that the judgment complained of was obtained by fraud, or resulted from inevitable accident, and that the courts of law can not grant adequate relief.” See Beaugenon v. Turcotte, post; Hubbard v. Hobson, id.; Beames et al. v. Denham et al., 2 Scam., 58; Wierich v. DeZoya, et al., 2 Gilm., 388; Scott v. Whitlow, 20 Ill., 310.
      A party who seeks to set aside a judgment by a proceeding in chancery, so as to obtain a new trial, must show himself clear of all laches, and also that every effort on his part was made to prevent the judgment against him. Ballance v. Loomis et al., 22 Ill., 82.
      The rule that equity will not relieve against the neglect of a party in a suit at law, who has not made a proper defense, or to move for a new trial, will depend upon the fact that he knowingly had a day in court. Owens v. Ranstead, 22 Ill., 161.


text:
    Jonathan Browder, Appellant, v. Jeremiah Johnson, Appellee.
    APPEAL FROM WASHINGTON.
    This court can not and will not look at things the clerk may, without authority and irregularly, incorporate into the record.
   Opinion of the Court by

Justice Smith.

This was an action of covenant for rent, and a verdict was rendered against the appellant in the court below, who applied to the court for a new trial, on the grounds that the verdict was against law and evidence, that the damages were excessive, and that the jury acted under mistaken impressions as to the right of the parties. This application was refused. The.imperfect state of the pleadings and the record, render it extremely difficult to say what ought to be done in reviewing the cause. It seems, by looking into the pleas and replications, that a perfectly immaterial issue has been made between the parties, and is in some measure the cause of the novel manner in which the record recites the proceedings had in the cause. Whether the court ought to look into a question which would naturally present itself in this state of the pleadings when it is not assigned for error, and was not noticed in the argument, is a matter on which they will not now decide, nor what effect it might have had in determining this cause. The only question which the counsel on both sides have presented for the consideration of the court is, whether the court below acted correctly in refusing the application for a new trial. From the state of the record, as the evidence on the trial has not been embodied in a bill of exceptions, and the affidavit of one or more of the jurors could only have been regularly brought before this court by being also incorporated in the exception of the counsel to the decision of the coart in refusing a new trial; on that ground, the court can not perceive the most distant means of ascertaining whether the court could have erred, in its refusal to grant the new trial. It becomes therefore impossible, from the manner in which the question is presented, to inquire into the causes of error. It is true, the clerk has, without authority, and very irregularly, incorporated the affidavit in the record, but still the court ought not, and can not notice it, though if they were disposed to overlook the irregularity in the present case, they could not say that the court below ought to have received the affidavit of the jurors, to impeach or set aside their verdict. There then being no point regularly before the court, and being in this instance not disposed to examine into causes of error not assigned nor noticed in the argument, (though if injustice were likely to happen, they do not say that they would not feel it their duty to examine and decide points of importance which may have escaped the examination of counsel,) they must affirm the judgment of the court below with costs.

Starr, for paintiff in error,

McRoberts, for defendant in error.

Judgment affirmed.

         See Sawyer v. Stephenson, ante, page 24. Forester, &c. v. Guard, Siddell & Co., page 74.

       In relation to an affidavit, copied into the record but not preserved by a bill of exceptions, the court used the following language: “ We have often and uniformly held, that to entitle papers and proceedings of this character to notice in this court they must either be copied into, or so specifically referred to by the bill of exceptions, as to leave no doubt of their identity, and that the party intends to rely on them in support of his case.” Hatch v. Potter, 2 Gilm., 725. And to the same effect are Rust v. Frothingham, et al., post. Sims v. Hugsby, id. McLaughlin v. Walsh, 3 Scam., 185. Cummings v. McKinney, 4 Scam., 59. Saunders v. McCollins, id., 419. Corey v. Russell, 3 Gilm., 366. Edwards v. Patterson, 5 Gilm., 126. Petty v. Scott, id., 209. Holmes v. The People, id., 480. Mann v. Russell, 11 Ill., 586. Magher v. Howe, 12 Ill., 379. McBain v. Enloe, 13 Ill., 78. Moss v. Flint et al , id., 572. McDonald v. Arnout, 14 Ill., 58.


text:
    Joseph Cornelius, Appellant, v. Robert Wash, Appellee.
    APPEAL FROM ST. CLAIR.
    Where the relation of client and counsel is created, the counsel must contribute his own legal knowledge and assistance in the suit, and aid in conducting it to a final determination.
    The confidence reposed in counsel is of a personal nature, and can not be delegated to another without the consent of the client. The client is entitled to receive the identical legal services he contracted for.
    Wash sued Cornelius before a justice of the peace in St. Clair county, for his services as attorney and counsellor, and recovered a judgment against him, from which judgment Cornelius appealed to the circuit court of said county. Trial and verdict in the circuit court for Wash for $59 in damages. A motion was made by defendant for a new trial, which was overruled, and thereupon a bill of exceptions was taken, from which it appears, that on the trial of the cause in the circuit court, the plaintiff, Wash, read in evidence to the jury, the following obligation, viz.:

      Belleville, Nov. 9,1819.

      Whereas, I have employed R. Wash in the suit instituted by George, a black man, against Robert Whiteside and E. Bradshaw, for the recovery of his freedom, I hereby promise and oblige myself to pay to said R. Wash or order, the further sum of fifty dollars, as witness my hand and seal.
    Joseph Cornelius, [seal.] as the foundation of his action, and proved by H. Starr, that the suit in the obligation mentioned, had been removed to the Randolph circuit court, and was there tried in the fall of 1820, and decided in favor of George, the black man in the obligation mentioned, and his right to his freedom thereby established; but the plaintiff did not prove that he rendered any service in said suit as counsellor or attorney for said George. This was the evidence on the part of the plaintiff. The defendant, by his counsel, then moved the court to instruct the jury as in case of a nonsuit, because the plaintiff’s evidence did not show that he had rendered any service in said suit as attorney for George, and was not entitled, therefore, to recover on the obligation. The court refused to give the instructions asked for, but instructed the jury that if they believed that the obligation imposed on Wash the duty of rendering services in the action as attorney, they should find for the defendant; but if they believed that by the contract specified in the obligation that Wash was to have the fifty dollars on George’s recovering his freedom, whether Wash rendered services in the cause or not, then they must find for the plaintiff'; and the court left the construction of the contract thus far, to the jury. Mr. Starr was then cross-examined by the defendant, and stated that the suit in question was tried in the St. Clair court at the June term, 1820; that he had no recollection that Mr. Wash was at court, or had any thing to do with the management of the cause, but that Mr. Peck appeared for George and managed the cause with ability; that a verdict was rendered for George for more than four hundred dollars, and that the verdict was set aside and a new trial awarded, and that the cause was removed to Randolph county, and there tried as above stated; that he appeared for George as attorney there, that George employed him, and that Mr. Wash was not there. It was further proved that the suit in the obligation mentioned, was commenced in the St. Clair court in July, 1818, by the late Mr. Mears, and in all the steps taken in the cause, Wash’s name no where appeared as attorney. It was further proved by D. Blackwell and J. Turney, that on the trial in June, 1820, on calling the cause, that Mr. Wash did not appear on being called, and that Mr. Peck and Mr. Carr, both lawyers, voluntarily told the court that they would attend to the cause for Mr. Wash, and they did attend to it at that time. It was further proved that Mr. Carr became the partner of Mr. Wash in the spring of 1820, but there was no proof that either Mr. Peck or Mr. Carr, was employed by Mr. Wash to represent him in the cause. The defendant proved by his own oath, that Carr exacted a fee from him for those services of twenty-five dollars, which he had paid, and said nothing about his being concerned with Wash as a partner. The plaintiff then gave in evidence the following writing under seal, viz.:
    Belleville, Nov. 9,1819.
    Three months after date I promise to pay E. Wash, or order, sixty dollars for value received, as witness my hand and seal, t Joseph Cornelius, [seal.]
    and proved that it had been given to him by defendant at the same time, to secure a fee in the same suit for his services as attorney, Ac., and that at the last term of the St. Clair court an action was tried on the note between the present parties, and that defendant relied on a failure of consideration on the ground that Wash did not render any services, and the jury found a verdict for him, Cornelius. Here the evidence closed, and the court instructed the jury further, that although the plaintiff did not in person attend to the suit for George, yet if Peek and Carr did. attend to it for him as well as Wash could have done, Wash would have a right to recover, and they ought to find for him. The defendant excepted to this opinion, and appealed to this court.
   Opinion-of the Court by

Justice Lockwood.

Two questions are presented in this case: 1. What is the true construction of the obligation made by the plaintiff in error to the defendant in error? 2. Ought the instructions prayed for to have been given to the jury ? On the first point, the court are of opinion that by the true construction of the contract of the parties, the relation of client and counsel was created, and that it became necessary for Mr. Wash either to have contributed his legal knowledge and assistance in the suit of George against Whiteside and Bradshaw, or have been ready and willing at the trial to have aided and conducted the suit to its final termination. The confidence reposed in counsel is of a personal nature, and can not be delegated without the consent of the client. The evident object of the party in making this contract being to obtain the legal services of Mr. Wash in prosecuting the suit, the court ought to have instructed the jury that, unless they believed Cornelius had dispensed with the personal services of Mr. Wash, they ought to find for Cornelius.

In relation to the second charge given to the jtiry, to wit: “ that although the plaintiff did not in person attend to the suit for George, yet if Peck and Carr did attend to it for him, as well as he, Wash, could have done, Wash would have a right to recover.” If the court is right in their construction of this contract, this instruction was clearly wrong. In the employment of counsel to manage a cause, the client is governed by a variety of considerations which relate to the character, learning and skill of the lawyer, and whether the client exercises a sound judgment in his selection, is a matter in which he alone is interested, but he is entitled to receive the identical legal services he has contracted for. It may, with propriety, be asked, by what rule could a jury decide whether Peck and Carr did render the same services that Wash might have done, had he been present? It is only sufficient to state the question to show the utter impracticability of its being determined by a jury. They can have no data on which to predicate an opinion. The judgment must be reversed with costs, with permission to the defendant in error to have the cause remanded to the circuit court for further proceedings, not inconsistent with this opinion.

Blackwell, for plaintiff.

Starr, for defendant.

Judgment reversed.

       If attorneys who are co-partners, accept a retainer, the contract is joint, and continues to the termination of the suit, and neither can be released from the obligations or responsibilities assumed, cither by a dissolution of then- firm, or by any other act or agreement between themselves. Walker v. Goodrich, 16 Ill., 341.
      An attorney agreed with a father to institute proceedings for the division and sale of land held by the lather and his daughter in common, and the father agreed to pay for such services five hundred dollars when the land should be sold and the purchase money become due, or the usual fee in case the attorney should fail to procure the division. The father died after an order for the sale had been entered by the court, but before the sale had taken place; and the guardian of the daughter had the suit dismissed. Held, that the attorney was only entitled to the usual fee for his services. Bunn et al. v. Prather et al., 21 Ill., 217.
      Contingent fees to attorneys are not against law or public policy. Newkirk v. Cone, 18 Ill., 449.


text:
    James C. Wright, Plaintiff in Error, v. The People, Defendants in Error.
    ERROR TO MADISON.
    It is not an indictable fraud to separate the condition from the penalty of the bond—it is not such an act as common prudence can not guard against.
    The act of 1819, respecting crimes and punishments, has fully provided for cases of this description.
   Opinion of the Court by

Justice Smith.

The early adjudication in England on indictments for frauds, appear, from the reports of the cases, to have been unsettled and contradictory. The leading case, which seems to have settled the doctrine, and to have established a channel through which the difficulties and perplexities arising from those decisions might be avoided, is the case of The King v. Wheatley, decided in February, 1761, and reported in 2d Burrow, 1125.

The distinction laid down in that case, between public and private frauds, has, it is believed, been the great criterion which courts of justice have adopted, by which to judge of the criminality of the act, and whether the perpetrator was liable to indictment and punishment, under the common law. The very lucid opinion of Lord Mansfield in that case, and unanimously concurred in by all the judges present, although not obligatory on this court, will yet certainly be respected, when the elevated characters and great legal attainments of the persons who composed that tribunal are considered. The opinion of Lord Kenyon was, that that case established the true boundary between frauds that were, and those that were not, indictable at common law. That case required that the fraud should be of such a nature as would affect the public, or that it should be a deception that common prudence and care could not guard against, or that false tokens should have been used, or a conspiracy entered into to cheat. The offense, in the language of Lord Mansfield, to be indictable, must be such an one as affects the public; as, if a man uses false weights and measures, and sells by them, to all or to many of his customers, or uses them in the general course of his dealing. So if a man defrauds another under false tokens—for these are deceptions that common prudence and care are not sufficient to guard against. So if there be a conspiracy to cheat—for ordinary care and caution is no guard against this. The cases here put are certainly more than mere private injuries, they are public offenses. This doctrine has been fully recognized by the supreme court of New York, in the case of The People v. Babcock, 7th Johns., 201.

In the present case it is a mere private injury—the public could in no way be affected by the act; nor is it a case of false tokens, which is necessary to be shown in a fraud on a private individual. The act of separating the condition written underneath the obligation, which was to determine the time of payment and liability of the parties to it, can not be considered as an act which common prudence might not have guarded against. It might have been avoided in various ways. By taking from Wright an instrument expressive of the condition upon which the obligation was given, instead of having it underwritten, or by having the condition inserted in the body of the obligation, according to the most common and usual method in practice.

The form of the obligation and defeasance, serves only to show with reference to the present case, that the obligors reposed great confidence in the person to whom they gave it. I feel more confirmed in the general view taken of the case, upon an examination of the sixth section of the acts of the legislature of this state of the 23d March, 1819, respecting crimes and punishments, which has fully provided for the defacing of instruments, obligations, &c., to which class of cases the present one might safely be arranged. The judgment of the circuit court must therefore be reversed.

Judgment reversed.

       Lockwood, justice, having prosecuted the defendant in the court below while attorney general, gave no opinion.

         The sixth section of the act respecting crimes and punishments, approved March 23d, 1819, p. 215, provides, “ That whoever shall forge, deface, corrupt, or embezzle any charters, gifts, grants, bonds,” &c., shall be deemed guilty of forgery, and shall be fined, put in the pillory, and rendered infamous.