text:
    Samuel S. Guyer, plaintiff in error, vs. Lemuel Andrews, defendant in error.

      ■Error to Rock Island.

    A collector of taxes, although he may not have taken an oath of office in the manner prescribed by the statute, may be an officer de facto, so far as the public and third persons are concerned, while he retained the office and exercised the duties of it.
    Where the jurisdiction of an officer is of a special and particular character, a person acting under a warrant from him, in order to justify himself, must show that the officer who issued the warrant acted within his jurisdiction, and was authorized to act in the particular case.
    A collector need not show the copy of the assessment list in justification of his acts, until he has laid the foundation for it, by showing the original assessment.
    This was an action of trespass, tried before a justice of the peace of Rock Island county, and taken by appeal to the Circuit Court. On the trial in the Circuit Court, Andrews, who was plaintiff below, proved that Guyer took certain personal property from him, and proved its value. Guyer then proved, that at the time of the taking of such personal property, he was the acting collector of taxes for said county, where the property was taken; and for the purpose of justifying the taking of such property for the non-payment of taxes, he introduced the assessor’s book of said county, for the year 1849. He proved that William Holloway was the acting assessor for said county for that year; that the said book was returned to the office of of the clerk of the County Commissioners’ Court, as the assessor’s return of the valuation of the taxable property for 1849 in that count}'', and that the book now belonged to, and constituted a part .of the records of the office of the County Court. The book purported to contain the assessment so made by the said Holloway.
    On the first page of the book was attached an affidavit, in these words:

    “ I, William Holloway, do solemnly swear that I will faithfully, diligently and impartially perform all the duties required of me by law, as assessor of taxable property in the county of Rock Island, and that I will in no instance value any lands as low as at three dollars per acre, which I believe to be worth more.”

      The oath was taken before the assessor entered upon the duties of his office. The affidavit was not attached to the said book until April 12, 1850, but was left in the clerk’s office.
    Guyer then offered the book in evidence, and offered to read therefrom the assessment against Andrews, but the Court excluded this evidence from the jury. Judgment was rendered against Guyer for $ 47. A motion for a new trial was made and overruled. The cause was heard before Kellogg, Judge, at May term, 1850.
    The assignment of errors questions the correctness of the decision of the Court, in excluding the assessment as evidence for the collector, Guyer.
    J. Manning, for plaintiff in error.
    N. H. Purple, for defendant in error.
   Opinion by Mr. Justice Catón :

Although there may be no difference, in substance, between the oath prescribed by the act of 1845 and that of 1849, yet we are not prepared to say that the taking of the former was a compliance with the latter law. When the Legislature changed the form of the oath, that change became a material although it may not have been a substantial one. But, notwithstanding the collector did not take the oath prescribed by the statute, we think as an officer de facto he could make an assessment which was binding, so far as the public and third persons were concerned. It is true, that the law of 1849 provides that “ a refusal or neglect of the treasurer to qualify and act as assessor, shall vacate his office as treasurer, and the County Court shall thereupon appoint some suitable person to fill such vacancy, who shall hold his office until his successor is elected and qualified; ” still, so long as he retained the office, and exercised the duties of it, he was an officer in fact. It was no part of the collector’s duty to inquire and determine whether the assessor was rightfully in office, and had duly qualified or not. So long as the County Court, the tribunal appointed by law for that purpose, did not treat the office as vacant, and fill it by appointment, it was not for the collector to refuse to perform his duty, because he might conceive that the assessor had not taken the proper official oath. It was enough for the collector to know, that the assessment was duly made, by an acting assessor, who was in the open and notorious exercise of the duties of the office. He was no more bound to inquire whether the assessor had been duly qualified, than he was to see that the clerk, who furnished him with the copy of the assessment, had taken his proper official oath. The case of The People vs. Collins, 7 John. R., 549, is in point. There, commissioners of highways, before they entered upon the duties of their office, were required to take an oath, which should be filed with the town clerk, and the law provided that a neglect to do so should be deemed a refusal to serve in the office, and that the town might proceed to choose others. The commissioners, without having taken and filed the oath, as required, laid out a road, but the town clerk refused to record the survey; insisting that their office was vacant, for the reason that they had not taken and filed the oath, and that they could not act. The Court, however, decided that they were officers de facto, and as such, their acts were good, and compelled the clerk to record the survey of the road.

Another question is raised by the defendant in error, and that is, admitting the assessment to have been valid, still the book offered showing the assessment was immaterial, as the collector could only justify himself under the warrant of authority by virtue of which he collected the tax, and behind which it was not necessary for him to go. The county clerk is required to deliver to the collector a copy of the list of taxable property returned by the assessor, and this constitutes his authority for collecting the tax. The jurisdiction of the clerk to issue this warrant of authority to the collector, is of a special and particular character, and the law is well settled, that he who would justify himself, when acting under such a warrant, must show that the officer issuing it acted within his jurisdiction, and was authorized to issue it in the particular case. This rule has been, often applied to the cases of warrants issued for the collection of taxes, by particular persons or officers, whose duty it was to issue such warrants when a proper assessment had been made. Suydam vs. Keys, 13 John. R., 444; Brewster vs. Hyde, 7 N. H. R., 209. Here the clerk had no authority to issue the copy of the assessment list, unless an assessment had been made. The hook, which was ruled out by the Court, was the original assessment list, and was of indispensable importance to the defendant below; for without it the copy under which he must have acted, was issued by the clerk without authority, and could not justify the collector. It is true, the collector did not show the copy of the assessment list, nor was he bound to do so, until he had been permitted to lay the foundation for it, by showing the original assessment.

The judgment is reversed, with costs, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Opinion by Mr. Justice Trumbull :

license: Public Domain

text:
    Ruel Ambrose, plaintiff in error, vs. Anson Root, defendant, in error.

      Terror to Kane.

    Courts will not lend tbeir aid to enforce a contract, entered into with a view of carrying into effect any thing that is prohibited by law. But an agreement which provides that if certain conditions are not complied with by one of the parties, that the other would have the right to enter and take possession of certain premises, and should not be regarded as a trespasser, nor his entry as anywise unlawful, in case force should be necessary to obtain the possession, is not an agreement to do an unlawful act.
    If greater force was used than was necessary, in taking such possession, the party offended against should reply the excess, or give evidence thereof, under the general replication of de injuria.

    A party acting under such an agreement would still be liable criminally, for a breach of the peace.
    This was an action of trespass for an assault and battery, brought in the Kane Circuit Court, by Ambrose against Root and several others. The defendants pleaded not guilty, and several pleas in bar. The fifth plea sets up two instruments in writing for the sale of certain premises by Root to Ambrose; in the second of which agreements it is covenanted between Ambrose and Root, that if Ambrose, by a day named, made default in paying a certain instalment, that Root “ might enter and take possession of the premises, using all the force necessary to obtain the actual possession thereof; and such entry should not be regarded as a trespass, nor sued for as such, nor in anywise unlawful; ” and that Ambrose made default in the payment of the money, and thereupon Root, and the other defendants, as his servants and assistants, took possession of said premises, using all the force necessary for that purpose, and no more. To this plea plaintiffs below demurred, and Catón, Justice, presiding, overruled the demurrer. The plaintiff below brought the case to this Court.
    B. S. Morris and R. S. Blackwell, for plaintiff in error.
    I. G. Wilson, for defendants in error.
   Opinion by Mr. Justice Trumbull :

This was an action of trespass, for an assault and battery of the plaintiff. The defendant pleaded among other defences, certain articles of agreement between the plaintiff and the said Anson Root, from which it appears that the former purchased of the latter an interest in certain mill property, for which he was to pay in instalments, and of which he took possession. The last article of agreement, which extends the time for payment as fixed by the first, contains this clause : In default of paying said instalment on or before the said 2Sd day of July, the said Ambrose covenants and agrees to and with the said Root, that he, said Root, may enter and take possession of said mill, using all the force necessary to obtain the actual possession thereof; and such entry shall not be regarded as a trespass, nor sued for as such, nor in anywise unlawful.” The agreements are set out at length in the plea, which then alleges that the plaintiff did not pay the said instalment; that the said Anson Root and the other defendants, as his servants and assistants, and at his request, entered and took possession of said mill, using no more force than was actually necessary to enter and take possession thereof; in doing which they did necessarily a little beat and ill treat the plaintiff, which are the same trespasses complained of. To this plea the plaintiff demurred, and the overruling of the demurrer is the only question in the case.

An objection of a formal character is first taken to the plea, that it does not distinctly allege that the plaintiff resisted the defendant, Anson Root, in taking possession of the mill. It avers, that the injury complained of was occasioned in taking the possession, and that no more force was used than was actually necessary to accomplish that object. Had the plaintiff not violated his engagement, by attempting to withhold the possession of the mill, there would have been no necessity to use violence towards him; and if there was no such necessity, the plea was untrue, and issue might safely have been taken upon it. In point of form we do not think the plea obnoxious to a general demurrer. But the main objection taken to the plea is, that it sets up an agreement that is illegal and void. The principle is admitted, that a Court will not lend its aid to enforce a contract, entered into with a view of carrying into effect any thing that is prohibited by law. But is this such an agreement, or had the parties to it a violation of the law in contemplation, when it was made ? It simply provides that Anson Root, who, if the agreement were not complied with by the plaintiff, would have the right to enter and take possession of the mill, should not be regarded as a trespasser, nor his entry as anywise unlawful, in case force should be necessary to enable him to obtain the possession.

This \&ds not an agreement to do an unlawful act. It cannot be supposed that the parties had it in contemplation at the time of executing the contract, that the plaintiff would wrongfully attempt to retain the possession, or that there would be any occasion to resort to force to put him out. The agreement was not made for the purpose of committing an illegal act, nor with a knowledge that one would be committed, and had the defendant complied with his obligation, as the law will presume was his intention at the time, none would have followed. If greater force was used than was necessary, the plaintiff could have replied the excess, or given evidence of it, according to the authority of the case of Ayres vs. Kelley, ante, page 17, under the general replication of de injuria.

This agreement does not release the defendants from a prosecution for a breach of the peace, if they committed one, but it does release them from the payment of damages to the plaintiff, for injuries that may necessarily have been inflicted upon him, In obtaining that possession, to take which he had expressly authorized one of the defendants, Anson Root, and by necessary implication, the other defendants acting under his direction. At the common law, whenever a right of entry existed, the disseizee might lawfully regain the possession by force. 1 Chitty’s Gen. Practice, 646. In the case of Hyatt vs. Wood, 4 John., 150, the Court says: “If the entry in such case be with a, strong hand or a multitude of people, it is an offence for which the party entering must answer criminally 5 but it would be absurd to say that he must also be responsible in damages, as for an injury to the person who has no right, but is himself a wrongdoer.”

Under our statute of forcible entry and detainer, a party having by law a right of entry, has no authority to make such entry by force; but this statute provides a civil remedy, which the wrongdoer in possession may at any time waive. My neighbor has no right to break open my dwelling and take therefrom my watch, yet if I authorize him to do it, the act becomes lawful, and he is released from any liability to me in so doing. So in this case, Root had no right by force to enter and turn the plaintiff out of the mill, yet the plaintiff having given him authority to make the entry, using all the force necessary to obtain the actual possession, such entry by force became lawful as to the plaintiff, and he cannot recover damages for that which was done by his own authority, nor can he complain that he was pushed aside, when he wrongfully stood in the way. Had the agreement been made with a view to authorize the beating of the plaintiff, it might have been void, because of the unlawfulness of the act, but it was made for the purpose of accomplishing a lawful object in a lawful manner—that is, to enable the defendant, Root, by the consent of Ambrose, to take the possession 'of his own premises. But for the unforeseen wrongful act of the plaintiff himself, nothing unlawful would have followed the carrying of the agreement into execution.

The following distinction has been taken as to when a promise to indemnify against a trespass will or will not be valid: “If an act directed or agreed to be done, is known at the time to be a trespass, an express promise to indemnify would be illegal and void j but if it was not known at the time to be a trespass, the promise of indemnity is a good and valid promise.” Stone vs. Hooker, 9 Cowen, 154; Coventry vs. Barton, 17 John., 142.

The judgment of Circuit Court is affirmed.

Judgment affirmed.


author: Opinion by Treat, C. J.:

text:
    Elizabeth Ballard, plaintiff in error, vs. Patrick McCarty, defendant in error.

      Error to Jo Daviess County Court.

    On an appeal from a justice of the peace, the Circuit Court is to hear the case on its merits, unless it shall appear from the evidence that the justico had no jurisdiction over the subject matter of the action.
    An appeal from the decision of a justice of the peace should not he dismissed, until it appears from the evidence that the matter litigated was without the jurisdiction of the justice.
    This was an action commenced by appellant against appellee, before a justice of the peace in Jo Daviess county. A judgment was obtained before the justice of the peace by appellant, for fifteen dollars. An appeal was prayed by appellee to the Jo Daviess County Court. On motion of appellee, Hugh T. Dickey, Judge, presiding, the Court dismissed the appeal, for the want of jurisdiction in the justice of the peace. Ballard appealed from the decision of the Jo Daviess County Court.
    J. P. Stevens and M. Y. Johnson, for appellant.
    Thompson Campbell, for appellee.
   Opinion by Treat, C. J.:

This action was commenced before a justice of the peace. The writ required the defendant to answer the complaint of Elizabeth Ballard, for trespass and damages, by entering and driving the stock of the plaintiff out of a certain field or farm, which the said plaintiff rented of the said defendant.” The defendant filed an affidavit for a change of venue, in which he described the suit as an action of trespass to personal property. The suit was so entered on the docket of the justice who tried the case. A trial resulted in a judgment for the plaintiff for fifteen dollars. On appeal, the Court dismissed the suit, for the want of jurisdiction in the justice.

We think the Court erred in sustaining the motion to dismiss. A justice of the peace has jurisdiction in actions of trespass to personal property. It was held in the case of Rogers vs. Blanchard, 2 Gilman, 335, that, in cases of appeal, the question of jurisdiction was not to be determined by reference to the process issued by the justice, but by the facts of the case as established by the evidence; in other words, that it was the duty of the Court to hear the case on the merits, without regard to the proceedings before the justice, unless it appeared from the evidence that he had no jurisdiction of the subject matter of the action. The law, under which that decision was made, is substantially incorporated into the Revised Statutes. R. S., ch. 59, secs. 66 and 67. The phraseology is somewhat variant, but the two statutes being in substance alike, ought to receive the same construction. The principle of the statute is, that a cause is to be heard and determined in the appellate Court on the merits, without reference to informalities or irregularities in the process or proceedings before the justice, unless it affirmatively appears that the justice had no jurisdiction of the subject matter really litigated before him. Where the facts show that the justice had jurisdiction of the matter actually in controversy before him, the cause is to be retained and decided according to the justice of the case. In the present case, the process left it doubtful whether the action was brought to recover damages for a trespass to the plaintiff’s close, or for a trespass to personal property found therein. But the proceedings sufficiently indicated what was the subject matter of the controversy. The defendant, as well as the justice, understood it to be an action of trespass to personal property. We think the case was clearly within the scope and design of the statute. At all events, the Court should not have dismissed the action until it appeared from the evidence, that the subject matter of the litigation was without the jurisdiction of the justice.

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

Judgment reversed.


text:
    Jonas Conkling et al., plaintiffs in error, vs. Robert W. Carson et al., defendants in error.

      Error to Jo Daviess County Court.

    An assignment by an insolvent debtor is illegal aid fraudulent, which requires creditors who shall become parties and share in its proceeds, to receive their dividends in full satisfaction of their demands against the assignor.
    Such an assignment is not absolutely void, but is voidable by the creditors of the assignor, but as between the parties, it is valid and operative; the title to the property passed thereby to the assignee ,* and a sale by him to a bona fide purchaser, before the creditors had taken steps to defeat the assignment, would be valid.
    The deed of assignment being voidable only at the instance of judgment creditors of the assignor, may he made good by matter ex yost facto, And when an assignment is so modified and changed as to divest it of its objectionable features, by the consent of all the parties thereto, prior to the time that any of the creditors are in a position to attack the original assignment, it must stand, and the rights of the creditors must be governed by it.
    A clause which provides that any surplus remaining, after the claims of the creditors, parties to the assignment, have been satisfied, shall be paid over to the assignor, does not invalidate the assignment.
    This was a hill in chancery, filed in the Jo Daviess County-Court, by the creditors of Carson & Games, against them and Artemas L. Holmes, praying that an assignment made by them to Holmes of their goods, &c., for the benefit of their creditors, should be set aside, as fraudulent and void, and that Holmes should be decreed to pay over to all the creditors of Carson & Games, pro rata, all of the moneys received by him from the property assigned, and for general relief. The respondents filed their demurrer to a part of the bill, and their joint and several answers to the residue. At the November term, 1848, of the Court, Hugh T. Dickey, Judge, sustained the demurrer, and decreed that the complainants take nothing by their bill.
    The complainants bring the cause to this Court, and assign for error, the decree of the County Court sustaining the demurrer and dismissing the bill.
    The bill was, in substance, as follows :
    That complainants, in the month of March, 1845, trading and doing business in the city of New York, sold a certain quantity of merchandize to the defendants, Carson & Games, at that time and up to the 22d day of June, 1846, trading as merchants, under the firm of Carson & Games, in the city of Galena; and that the said complainants also sold certain other goods to the said defendants, Carson & Games, in the months of June and September, 1845, and in the month of April, 1846; for which purchases Carson & Games executed six promissory notes to the said complainants, payable in different sums and at several periods. The last note was due on the 3d day of December, 1846. That on the promissory note first due a payment of $ 300 was made ; and that on the 10th day of November, 1846, the complainants obtained a judgment in the Jo Daviess County Court against the defendants, Carson & Games, on a portion of said indebtedness. Upon which said judgment an execution was issued December 7th, 1846, and returned March 7th, 1847, “not satisfied.” The bill charges that the defendants, Carson & Games, at the time when said merchandize was so sold to them as aforesaid, made large purchases of merchandize of other merchants in New York, Philadelphia, and elsewhere, which they caused to be transported to Galena, their place of business ; that John C. Games, one of the firm, visited the eastern cities to purchase goods for the firm, and that at that time the said firm were largely indebted to eastern merchants for purchases previously made ; which indebtedness amounted to a sum exceeding $ 7,000 ; which said firm of Carson & Games were then totally unable to pay.
    Complainants further charge, that no one of said notes were ever paid to the complainants. Bill further states, that the firm of Carson & Games was largely indebted at the time said Games went east for the purpose of purchasing goods ; and that he did make such purchases in the eastern cities to the amount exceeding $ 10,000, and forwarded them to their place of business in Galena; which goods, so purchased in the spring of 1846, by the said Games, was done upon representations by him that the firm of said Carson & Games were abundantly able to meet their liabilities, and pay for the same ; when, in fact, at the time of said representations, the said Carson & Games were utterly insolvent, and unable to pay the debts then due or to be paid thereafter; which fact was well known to Carson & Games. Bill further states, that said Games, after having made the purchases of goods, as above stated, returned to Galena, the place of business of said firm of Carson & Games, about the 22d day of April, 1846, and shortly afterwards, to wit, about the 20th of June, 1846, one J. R. Malony, representing himself as agent of certain creditors of said Carson & Games, induced the said Carson & Games to make an assignment to Artemas L. Holmes, one of the defendants; which said assignment the complainants charge hy their hill was and is void and fraudulent in law, and a fraud upon said creditors of Carson & Games. It is further charged by said hill, that the defendants, Carson & Games, and also said A. L. Holmes, knowing that said deed of assignment, executed on the 22d of June, 1846, by said Carson & Games, on the 16th day of July, 1846, attempted to give validity and legality to the same, hy a certain instrument in writing, the contents of which original assignment, as well as the instruments subsequently executed, are succinctly as follows : The original assignment to A. L. Holmes, dated June 22,1846, between Carson & Games, of the first part, and A. L. Holmes, of the second part, and the several creditors who have executed, or who shall hereafter execute or accede to the same, within sixty days from the date of the third, after reciting that Carson & Games are unable to pay the immediate demands against them, &c., conveys all their property, of every name and nature, real and personal, except household furniture and property exempt hy law from levy and sale, to A. L. Holmes, in trust, to sell and dispose of said property, &c., at his reasonable discretion, &c., to compound for the same, and the proceeds to apply: 1st. To pay the expenses, &c., of the assignment, &c., of trust. 2d. To pay James Carter & Co. $ 600, and save harmless E. W. Strother, surety for same; and a judgment of E. C. Sloan & Co., of $ 165 ; and a judgment of Lindsey & Co., for $ 378 5 and an acceptance of Spears & Vanderhoff, of $ 278 87, indorsed hy Malony. 3d. To pay certain creditors, eighteen in number, naming them, and specifying the amounts, (about $ 10,000 or $ 11,000,) pro rata. 4th. To pay the remainder of said property and proceeds among all the other parties of the third part; and if there he any surplus, after paying the same in full, then, fifth, to pay such surplus to Carson & Games.
    The assignment appoints Holmes attorney to carry into effect the objects of the assignment.
    Holmes accepted the trust, and agreed to perform faithfully, but not to he liable for loss, &c., except for wilful default or negligence. The creditors are to- accept the property, &c., assigned, in full payment, &c., of their debts and demands, and fully release Carson & Games. The creditors, hy signing, are to express their assent to the assignment, and accept the provisions made for them. This original assignment purports to be signed by Carson, Games, Holmes, and by ten of the eighteen creditors, by an agent. Recorded, June 23d, 1846.
    The addition, alteration and amendment, of July 16th, 1846, after reciting the making of the original assignment: That at the time of making the assignment Carson & Games believed that the property conveyed by the assignment would pay all their debts, and, in consideration thereof, a provision was inserted for a release by the creditors who became parties thereto, of their debts due from Carson & Games, and a discharge, &c.. That since the making of the assignment, on taking an inventory of the goods and merchandize and property assigned, they do not think there is enough to pay all their just debts. That Carson & Games agree with all creditors who have executed said assignment, (any thing therein notwithstanding,) or who shall hereafter do so, that the said deed and its provisions shall not operate, nor any thing therein, as a payment, discharge, &c., of the debts, &c., of the creditors, or of any of them, nor of any damage, loss, &c., upon their respectively becoming parties thereto or not; but all the creditors, parties, or to become parties thereto, shall be entitled to the avails of the assignment, without releasing Carson & Games. Carson & Games, in conclusion, agree to pay all their creditors, parties or to become parties to the assignment, or not. Recorded, July 17th, 1846. This purports to be signed by Carson & Games, alone.
    The second addition, alteration or amendment, of 28th July, 1846, after reciting the making of the assignment on the 22d of June, and the making of the instrument of the 16th of July, by which the original was altered and modified, by discharging and doing away with the provision as to the release, &c.: That said instrument of the 16th July, was made with the assent and concurrence of the trustee, and all other then parties thereto, and that such assent does not appear by said instrument. That it be known that the addition of 16th July, altering, &c., the assignment, was made with the assent and concurrence, at the time, of the trustee and creditors who had become parties thereto ; and they hereby assert and concur in the alteration and amendment made by the instrument of 16th of July, and consent and agree to the execution of the trusts, &c., as modified and altered by the instrument of 16th of July, 1846; and for the purpose of giving the creditors of Carson & Games, who have not yet signed the original, and become parties thereto, as modified, &c., the time for signing is extended to sixty days from this date. This purports to be signed by Carson, Garnes, Holmes, and the ten creditors who signed the original assignment.
    The said bill further charges, that the goods and effects transferred in the said original deed of assignment, were the goods obtained from the creditors of said Carson & Garnes, and among others, from the complainants; and that the said goods and effects, so assigned, constituted all the property, real and personal, of said Carson & Garnes. That in pursuance of said assignment, the said Carson & Garnes delivered over to Holmes, the trustee, and the said Holmes received all the goods, effects and property mentioned in said assignment. That since the assignment, Holmes has proceeded to execute said trust, and sold the property and effects mentioned in the assignment; that he has paid over the moneys so received by him to the parties designated in the assignment. That said trustee was only authorized to pay over moneys received by him as trustee, to those persons who had assented to said assignment, by becoming parties thereto.
    Bill charges, that the said trustee had paid over large sums of money to divers persons who had not assented to the assignment, and names to whom thus paid, and the sums paid to each.
    Further it is charged, that a suit and judgment and execution at law, so far as complainants and other creditors of Carson & Garnes are concerned, have been utterly unavailing, for the reason that the property, credits and effects transferred by the assignment, were placed entirely beyond the reach of an execution; the said trustee having sold the property transferred by the deed of assignment.
    It is further charged, that at the time of said assignment, Carson & Garnes were indebted to an amount exceeding $ 24,000; that the amount of the money to be first paid to the creditors particularly named in the assignment, exceeded the sum of •$ 11,000; that the goods, credits and effects assigned were not worth more than $ 14,000; that after deducting expenses, costs charges of executing the trust, &c., there would be nothing remaining to pay the creditors not particularly preferred.
    Bill further charges, that on the 18th day of July, 1846, the complainants, on their own behalf and on that of other creditors of Carson and Games, gave a written notice to A. L. Holmes, trustee, that the said deed of assignment was fraudulent and void, and not to sell or dispose of the goods and merchandize conveyed by said assignment, and of the intention of the complainants to apply for an injunction, and to take legal steps to have said assignment set aside and declared null and void.
    Bill further charges, the said Carson & Games were wholly irresponsible, and had no means to pay their debts, except the proceeds of the goods and property conveyed by said assignment. And further, that unless said assignment be set aside as fraudulent and void, and the proceeds ordered to be divided among all the creditors of Carson & Games, pro rata, that the complainants and other creditors not preferred by the deed of assignment, would wholly lose their demands against Carson & Games.
    Hempstead & Washburne, and J. H. Collins, for plaintiffs in error.
    J. P. Hoge, for defendants in error.
   Opinion by Treat, C. J.:

The deed of assignment of the 22d of June, 1846, was illegal and fraudulent as against the existing creditors of Carson & Games, because of the provision requiring creditors, who should become parties to it, and entitled to share in the proceeds of the' property assigned, to receive their dividends in full satisfaction and discharge of their respective demands against the assignors,-’ The law does not allow a debtor to impose such harsh and onerous conditions upon his creditors. A debtor in failing circumstances has an undoubted right to prefer one creditor to another, and to provide for the preference, by assigning his effects ; but he is not permitted to say to any of his creditors that they shall not participate in his present estate, unless they will release all right to satisfy the residue of their debts out of his future acquisitions. It is unnecessary, however, to discuss the question, as the cases of Howell vs. Edgar, 3 Scammon, 447, and Ramsdell vs. Sigerson, 2 Gilman, 78, are directly in point, as to the invalidity of the original assignment.

But that assignment was not absolutely void, and therefore incapable of confirmation. It was fraudulent, per se, as to the existing creditors of the assignors, and liable to be avoided by them, but by them only. As between the parties, it was valid and operative. The title to the property passed to the assignee, subject, indeed, to be defeated by creditors in a condition to reach the property by the process of the law. A sale by the assignee to a bona fide purchaser, before the creditors had pursued their legal remedies, would be valid and effectual. The deed, then, being Voidable only at the instance of a creditor having a judgment against the debtors, could be made good by matter ex post facto. It was in the power of the parties to purge it of all obnoxious provisions. The deed was capable of confirmation, before the rights of creditors intervened to prevent it. Murray vs. Riggs, 15 Johnson, 571; Sterry vs. Arden, 1 Johnson’s C. R., 261; Hone vs. Woolsey, 2 Edward’s C. R., 289. The complainants were not in a position to attack the assignment, until long after the execution of the agreements of the 16th and 28th of July, 1846. Those agreements were executed by the assignors and assignees, as well as by all of the creditors who had signified their assent to the original assignment; and they so modified and changed the terms of that assignment, as to divest it of the objectionable clause. The creditors were left free to become parties to the assignment, and participate in its benefits, without impairing their right to proceed against the assignors, for any balance that might remain due them after the execution of the trust. The assignment, thus purged of the exceptionable feature, must stand, and the rights of the creditors, in respect to the property assigned, must be governed by it, unless it contains some other provisions that may render it invalid. The only other objection taken to the assignment, is the clause providing for the payment to the assignors, of the surplus that may remain after the satisfaction of the debts of such creditors as shall become parties to it. This provision does not invalidate the assignment. The precise question arose in the case of Cross vs. Bryant, 2 Scammon, 36. In that case, the debtors made an assignment for the benefit of their creditors, which declared that the proceeds of the property remaining in the hands of the assignee, after the payment of such of the creditors as should, within sixty days, execute the deed of assignment, should be paid over to the assignors. It was contended that this provision vitiated the assignment, but the Court held otherwise. The Court said : “ The provision in the deed requiring the payment over of any surplus, should there be such, to the assignors, was not an improper condition. It was but the declaration of a resulting trust, which the law would raise, had it not been inserted.” We are disposed, without a reinvestigation of the question, to adhere to that decision. It was made many years since, and important rights may have been acquired on the faith of it, which would be seriously affected by a contrary determination. Nor do we perceive that any considerable injustice or inconvenience can result from sustaining such an assignment. The clause in question permits the creditors to come in under the assignment, within a reasonable time, and partake of its benefits, without discharging their debtor from the payment of any balance that may remain due them. If they decline to do so, they are at full liberty to pursue their remedies against the debtor. If there is any surplus, after the payment of the claims of the assenting creditors, it may be reached either in the hands of the trustee or the debtor. If there, was no such provision in the assignment, the trustee would be authorized, after a reasonable time had elapsed for creditors to come in and claim the benefit of the assignment, to restore the surplus to the debtor.

Not one of the numerous cases referred to on the argument, as establishing a different doctrine, goes the length of holding an assignment fraudulent, per se, because of the insertion of a provision like the one in question, although the expressions used by judges in some of them, would seem to authorize such a conclusion. The strongest cases, and in fact the only cases in which the question can be said to have arisen, are Burd vs. Smith, 4 Dallas, 69; Mackie vs. Cairns, 5 Cowen, 547; and Austin vs. Bell, 20 Johnson, 440. In the first case, the assignment provided that the shares of such of the creditors as should not, within nine months, signify their acceptance of its provisions, should be paid to the assignor, “to the intent that he might therewith compound with and satisfy such creditors.” The Court—three judges against two—held the assignment fraudulent as to a creditor who had obtained a judgment against the debtor, before the deed was delivered to the assignees, and before any of the creditors had assented to the assignment. The decision was clearly right. The deed was not operative, at least against the creditor, until it was delivered to the assignees. In the second case, the Court held an assignment fraudulent and void as to creditors, which reserved to the debtor out of his estate an annual sum of $ 2,000, for the support of himself and family, for the period of four years, unless he should be sooner discharged from all his debts. This decision was unquestionably correct. The reservation was absolute, not depending, as in this case, on the voluntary acts of the creditors. In the last case, an assignment was held invalid, as it clearly should have been, which required the creditors to release the debtor from all their demands; and which reserved to him the shares of such, of the creditors as declined to become parties to the assignment, as well as the sum necessary for the support of himself and family.

It will thus be seen, that in all of these cases the assignments might have been declared invalid, without impugning the principle which we are inclined to sustain. We do not therefore consider them as authorities in point on the question involved in the case before us. ,

The decree of the Court below is affirmed, with costs.

Decree affirmed..


text:
    Frederick Stahl and Nicholas Stahl, plaintiffs in error, vs. Thomas Webster and others, defendants in error.

      Error to Jo Daviess.

    A Court has control over its records, to alter or amend them, during tbe term at which they are entered.
    The word “ property3> embraces money, debts, and choses in action, of every kind, as well as things that are visible or tangible.
    The twenty-sixth section of the attachment act, contemplates not only that the avails of the property attached, when converted into money, but, also, that a debt due from a garnishee, is liable to he apportioned among the attaching and judgment creditors, specified in that section.
    The proper practice is, to enter a judgment against the garnishee, in favor of the defendant in the attachment, for the benefit of such attaching and judgment creditors as are entitled to share in its proceeds. If the judgment exceeds what is due the attaching and judgment creditors, the excess will be for the benefit of the defendant in the attachment.
    This was an action commenced by a writ of foreign attachment against Webster, by tbe plaintiffs in error, and returned into the Jo Daviess Circuit Court. Several parties were served as garnishees. Interrogatories were filed against one of the garnishees, and judgment was rendered against him in favor of the plaintiffs, for the sum of one thousand eight hundred and thirty-six dollars and eighty-six cents, subject, however, to the order of the Court rendered on the same day. Judgment was previously rendered against the defendant in the attachment. On the day of the rendition of that judgment, the following order was entered by the Court, to wit:
    “ In the matter of Frederick 'Stahl, and Nicholas Stahl and Patrick Strachan, and William D. Scott, attaching creditors of Thomas Webster & Co., doing business, &c., against James Carter, impleaded with Patrick Strachan, garnishees of said Thomas Webster & Co.
    “ For as much as it appears that Frederick Stahl and Nicholas Stahl have recovered judgment on yesterday, as of this term, for the sum of fourteen hundred and twenty-three dollars and six cents, and Patrick Strachan and William D. Scott recovered judgment at the same time for the sum of four thousand seven hundred -and ninety-six dollars and twenty-one cents, against said Thomas Webster & Co., doing business, &c., on attachments made returnable at this term of the Court, and that in both cases process has been served on the same garnishee, and he in both cases came into Court and acknowledged the same indebtedness to the said defendant, Thomas Webster, the clerk is directed, according to the statutes in such case made and provided, to make an estimate of the several amounts the attaching creditors, the said Frederick and Nicholas Stahl, and the said Strachan and Scott, are entitled to, out of the credits attached, in the hands of the said garnishee, and the clerk report the following estimate : that out of the credits in the hands of the said garnishee, the said Frederick and Nicholas Stahl are entitled to the sum of four hundred and twenty dollars and thirty-one cents, and the said Strachan and Scott are entitled to the sum of fourteen hundred and sixteen dollars and fifty-five cents ; and it is ordered by the Court that the said sum of eighteen hundred and thirty-six dollars and eighty-six cents, be distributed accordingly, and that the clerk certify the same in each case to the sheriff.”

      This was upon the 14th day of March, 1850. There was no other suit at this time brought against the said Webster to this term of the Court, nor any suit pending in this Court, except the said suits of attachment of the said Strachan and Scott, and of these plaintiffs.
    After the said proceedings had taken place in this attachment suit, and in the case of Strachan and Scott, on the 19th day of March, as yet of the March term of the said Court, the attorney of William and James Moir, filed a warrant of attorney of the said Thomas Webster, authorizing a judgment to be entered in favor of the said Moirs, in the sum of eight thousand dollars; which was on that day entered accordingly.
    After the rendition of which judgment, a motion was made and allowed, directing the clerk to make an estimate of the several amounts each attaching and judgment creditor of the defendant, rendered at that term of the Court, would be entitled to out of the property attached, either as money or other property, in the hands of garnishees, or otherwise; and that he should apportion said amount in proportion to the respective demands of said attaching and judgment creditors.
    The only property attached was the indebtedness of Carter, the garnishee. The attaching creditors objected to the entering of this second order, which is as follows :

      “ In the matter of Frederick Stahl and Nicholas Stahl, and Patrick Strachan and William D. Scott, attaching creditors, and William and James Moir, judgment creditors of Thomas Webster & Co.
    “ The Court having fully considered, and being fully advised, upon the motion of the said William and James Moir, heretofore filed by their attorney, to direct the clerk to make an estimate of the several amounts each attaching and judgment creditor of the defendant, rendered at the present term of this Court, will be entitled to, out of the property attached, either as money or other property, in the hands of garnishees, or otherwise, after the same shall be secured by the sheriff: The Court thereupon directs the clerk to make an estimate of the several amounts each of the attaching and judgment creditors of this term will be entitled to, out of the money of the said judgment debtor, garnisheed in the hands of James Carter, after the collection thereof by the sheriff, calculating such amount in proportion to the amount of the several judgments, with cost, as the same will respectively bear to the amount in the hands of the said garnishee. And the said garnishee having heretofore answered to the interrogatories filed by the said Frederick and Nicholas Stahl, and Patrick Strachan and William D. Scott, by their attorneys, that he was indebted to the said Thomas Webster & Co. in the sum of $ 1,800 86.
    “The clerk thereupon estimates the amounts each of the attaching and judgment creditors are entitled to as aforesaid, as follows, to wit:
    “ Frederick and Nicholas Stahl one hundred and eighty-three dollars and eighty-three cents; Patrick Strachan and William D. Scott six hundred and nineteen dollars and fifty-eight cents; William and James Moir one thousand and thirty-three dollars and fifty-five cents; which estimate is approved by the Court. It is, therefore, considered by the Court that the clerk certify the said several amounts to the sheriff; and it is further ordered, that so much of the order of the Gourt heretofore entered at this term, on the 14th day of March, A. D. 1850, directing the clerk to make an estimate of the several amounts to which said attaching creditors are entitled, in the said cases of Frederick and Nicholas Stahl vs. Thomas Webster & Co., and Patrick Strachan and William D. Scott vs. Thomas Webster & Co., and previous to the judgment of William and James Moir, as is inconsistent with or conflicts with this order, be rescinded and set aside.”
    The plaintiffs in error, who were the plaintiffs in the attachment suit, bring the cause to this Court; and assign for error the rescinding and setting aside of any part of the first order, and in making the estimate in favor of Moirs, the judgment creditors.
    The proceedings were had before Sheldon, Judge, at March term, 1850.
    J. P. Hoge, for plaintiffs in error.
    Thompson Campbell, for defendants in error.
   Opinion by Mr. Justice Trumbull :

This is a controversy between the attaching and judgment creditors of Webster, as to the distribution'of the amount due from the garnishee, in the attachment suits. F. and N. Stahl and Straehan and Scott, sued out attachments against Webster, returnable to the March term, 1850, of the Jo Daviess Circuit Court; and in both cases the same person was summoned as garnishee. At the return term, judgments were entered against the defendant in the attachment suits, and also against the garnishee, for the amount he acknowledged himself indebted to the defendant. An order was then entered, directing the clerk to make an estimate of the amount which each attaching creditor was entitled to, out of the credits attached in the hands of the garnishee. Subsequently, but during the same term of the Court, a judgment was entered against said Webster, on a warrant of attorney to confess judgment, in favor of 'William and James Moir, and thereupon a motion was made in behalf of the Moirs, for an apportionment between them and the attaching creditors, of the sum due from the garnishee, in proportion to the amount of their respective judgments ; which motion was allowed, and the previous order of the Court directing the sum due from the garnishee to be distributed between the attaching creditors, rescinded. F. and N. Stahl now bring the case here, and assign for error, the rescinding the first order of distribution, and allowing the plaintiffs in the judgment by confession to share in the proceeds to be collected from the garnishee.

It is a familiar doctrine, that a Court has control over its records, to alter or amend them, during the term at which they are entered. If, therefore, the last order of distribution was proper, the Court committed no error in rescinding the first.

The plaintiffs in error insist, that the twenty-sixth section of the attachment act, R. S., 69, providing, under certain circumstances, for an equitable division of the proceeds of the property attached, among various creditors of the defendant, does not apply to a case where the attachments are served on a garnishee, hut only to cases where they are levied upon visible, tangible property. The language of the act is, that, “in all cases where more than one attachment shall he issued against the same person or persons, and returnable to the same term of the Court to which they are returnable, or when a judgment in a civil action shall also be rendered at the same term against the' defendant who is the same person and defendant in the attachment or attachments, the Court shall direct the clerk to make an estimate of the Several amounts each attaching or judgment creditor will be entitled to out of the property of the defendant attached, either in the hands of any garnishee or otherwise, after the sale and receipt of the proceeds thereof by the sheriff, calculating the amount in proportion to the amount of their several judgments, with costs, as the same will respectively bear to the amount of the sum received; so that each attaching and judgment creditor will receive his just part thereof, in the proportion to his respective demand.” The language of this section expressly authorizes the creditors therein specified to share pro rata in the proceeds of the property attached, whether in the hands of a garnishee or otherwise. Why confine this equitable distribution to the proceeds of the attached property, which are moveable and tangible P Is there any reason why a party obtaining a judgment in a civil action, should be permitted to divide with the attaching creditor the money collected by virtue of his attachment upon visible property, and not permitted to share with him the money collected by virtue of the same attachment, from a garnishee ? Before drawing such a distinction, the Court should be clearly satisfied that the Legislature intended to make it. The word “property” embraces money, debts and choses in action of every kind, as well as articles that can be seen and handled. A debt due from another, is as much property, and as effectually attached, when the person owing it has been summoned as a garnishee, as is any visible species of property upon which the attachment may have been levied.

The law is the same as to what property shall be apportioned between attaching creditors, as it is as between them and a judgment creditor in a civil action, and no complaint is made in this case, that the first order of distribution between the attaching creditors was not proper. The words “after the sale and receipt of the proceeds thereof by the sheriff,” have reference to the time when the clerk is to make the estimate. He is not required, and cannot properly do this, till the property attached has been turned into money; for till then, he cannot know how much will be collected. The Court directs the clerk how to make the estimate, and the making of it is a mere ministerial act, to be performed afterwards. If the words under consideration should be held to limit the distribution to the proceeds of such property as had been attached and sold, then when an attachment was levied upon the money of the defendant, no apportionment could take place, because it would not be liable to be sold. Such could not have been the intention of the Legislature. Looking at the object had in view, in the enactment of the twenty-sixth section, and taking all its provisions together, it is clear that the avails of the property attached, when turned into money, whether they are the proceeds arising from a sale of property or from the collection of a debt due from a garnishee, are all liable to be apportioned among the attaching and judgment creditors, which the section specifies.

It is, however, insisted that this construction is impracticable j that the judgment of the attaching creditor may be for a less amount than the garnishee owes; that such creditor may, at any time, enter his judgment satisfied, or the defendant may pay the judgment 5 in which event, the garnishee will be released, and the Court will have no means of collecting the debt due from him and applying it towards the satisfaction of the judgment in the civil suit, inasmuch as no execution can issue upon that judgment against the garnishee. All these difficulties are just as formidable, if the construction contended for by plaintiffs’ counsel be given to the statute.

In this very case, F. and N. Stahl, the attaching creditors, only obtained judgment against Webster for $ 1,423 06, and yet a judgment is entered in their favor against the garnishee for $ 1,836 83. What authority, it may be asked, had the Court to enter a judgment against the garnishee, in favor of F. and N. Stahl for a greater amount than they had recovered against the defendant in the attachment ? It wa's done, no doubt, so as to be able to collect from the garnishee the whole amount he was owing, that it might be apportioned between the different attaching creditors. It so happened, in this particular case, that both attachments were served upon the same garnishee. But suppose this had not been the case: how is the money due from a garnishee to be collected, when it exceeds the judgment obtained by the creditor who has attached it, against the defendant in the attachment? Or suppose different attachments, returnable and returned to the same term, levied upon different articles of property : in such a case, it must be admitted, that the attaching creditors are entitled to share pro rata in the proceeds of all the property attached; and yet, how can all the property attached be sold, and its proceeds received by the sheriff, when it happens that numerous articles are levied upon by only one attachment, the half of which are sufficient to satisfy it ? Each attaching creditor, in cases of judgment by default, is confined in his execution to the particular property he has attached, and has no authority to issue execution against property attached by another creditor of bis debtor. In the case supposed, the debtor may think proper to pay off the small attachment, or the creditor may enter it satisfied, and how, in such an event, are the other attaching creditors, entitled by law to share pro rata, in the proceeds of all the property attached, to reach that which has been released by the creditor, where attachment was alone a lien upon it ?

In carrying out the provisions of the twenty-sixth section, difficulties present themselves, let the construction be what it may; but they are not diminished by adopting the one contended for by the plaintiffs.

The law is plain, that different creditors, under certain circumstances, are entitled to a pro rata distribution of the property of their debtor which has been attached, and the Courts, in applying it, must adopt such proceedings as will best effectuate the legislative intention.

All Courts must have the power to give effect to the orders that they are required to make, and in giving a practical application to the provisions of the twenty-sixth section of the act under consideration, the Courts must, if necessary, depart somewhat from the usual mode of proceeding, in order to give effect to the law. The practice" has been, to enter the judgment against the garnishee, in favor of the attaching creditor, and yet, there is a manifest impropriety in entering a judgment as in this case, in favor of the attaching creditor for a greater amount than he has recovered against the defendant, in the attachment. How such a result is to be sometimes avoided, if the judgment against a garnishee is to be in favor of the creditor whose attachment has been served upon him, we do not well see. The proper practice would, therefore, seem to be, to enter the judgment against the garnishee, in favor of the defendant in the attachment, for the benefit of such attaching and judgment -creditors as are entitled to share in its proceeds. They would then have the right to control;the judgment, and the money, when collected from the garnishee, would be liable to be distributed among the several creditors, according to the directions received from the clerk. By entering the judgment in favor of the defendant in the attachment, the objections which have been suggested in giving practical effect to the provisions of the twenty-sixth section are obviated; nor is any violence done to any other part of the attachment act, by entering the judgment in this form. The statute declares, that it shall be lawful to enter up judgment and award execution against a garnishee, but does not specify in whose favor the judgment shall be. There is a peculiar fitness in entering the judgment in favor of the party with whom the debt was contracted, and to whom it is due ; and if the judgment exceeds what is due the attaching and judgment creditors, the balance will be for his benefit.

This Court being of opinion that the Moirs were entitled to share pro rata in the amount to be collected from the garnishee, as decided by the Circuit Court, the judgment is affirmed.

Judgment affirmed.


author: Opinion by Mr. Justice Catón :

text:
    Robert McLagan, plaintiff in error, vs. John H. Brown and James W. Brown, defendants in error.

      Error to Jo Daviess.

    If a judgment debtor disposes of his equity of redemption, before a second judgment becomes a lien upon the premises, and the purchasers of the equity fail to redeem the premises, the judgment creditors under the second judgment may redeem after the twelve and before the expiration of the fifteen months from the day of the fii*3t sale.
    A judgment creditor who redeems from a prior sale, acquires a valid title to the premises redeemed, even though the judgment, by virtue of which he acquired the right to redeem, may be subsequently reversed.
    No one but the defendant in the judgment reversed, or his assignee, can claim any benefit on account of such reversal.
    A mechanic's lien does not attach until the work shall have been performed, or the materials shall have been furnished, for which the lien is claimed.
    A petition for mechanic's lien should make judgment creditors parties to the suit, if it is designed to affect or defeat their rights.
    This was an action of ejectment brought by the defendants in error against the plaintiff, to recover the possession of lot seventy-five, on Water street, on the prairie, in the city of Galena. The action was in the usual form, and the plea not guilty. The cause was submitted to the Court, Sheldon, Judge, presiding, at May term, 1850, when a verdict was found for the defendants.

      Both parties claimed title to the premises in question, through one John J. Cruikshank. The plaintiffs on the trial produced the record of a judgment in the Jo Daviess County Court, in favor of Artemas L. Holmes against Cruikshank, for the sum of $ 245 20, and costs of suit, rendered on the 9th day of October, 1845, An alias fi. fa. issued on this judgment, dated 17th June, 1846, which was levied on the lot in controversy, on the first day of August following, and the same was sold by the sheriff on the 29th of that month, Holmes, the plaintiff in the execution, becoming the purchaser, and receiving a certificate of purchase from the sheriff. The plaintiffs also produced and read in evidence a judgment in their favor, against said Cruikshank, rendered in the Circuit Court of Jo Daviess county, dated the 10th March, 1847. Execution issued thereon on the 27th day of November, 1847, and levied on said lot, claiming to be judgment creditors of Cruikshank, and on the same day paid to the sheriff the amount of Holmes’ bid, with interest. The lot was put up and sold by the sheriff, under the redemption made by the Browns, the plaintiffs in the execution, and purchased in by them on the 21st December, 1847, at the amount of redemption paid by them to the sheriff, and no more. And the sheriff executed to them a deed, which was acknowledged and recorded.
    It also appeared that the judgment obtained by the Browns, and under which they redeemed, was reversed by the Supreme Court, at the December term, 1848. The last day of the term at which the Browns obtained their judgment against Cruikshank, was the 22d day of March, 1847. The defendant admitted he was in possession of the premises when the suit was brought.
    The defendant produced and read in evidence a deed, duly acknowledged, &c., from Cruikshank to J. and William Holmes and Mary Burgess, for the lot in dispute, dated 10th March, 1847, conveying to them a fee simple estate, with covenants of warranty, excepting the judgments in favor of Holmes, and Morris and Osborne. Sale for the consideration of $ 2,700. The defendant also produced and read as evidence, the certificate of purchase from the sheriff to Holmes, under his judgment, with an assignment of the same to C. Cooney, on the 29th of August, 1847, and an assignment from Cooney to Johnson, on the 24th of November, 1847, and a sheriff’s deed to Johnson, on said certificate and assignments, after the judgment in favor of the Browns had been reversed. The defendant also produced the records, &c., showing that Osborne and Morris had each recovered judgment against Cruikshank, for work done and, materials furnished upon a building upon the lot in controversy; that the lot was sold on each of said judgments, and that Johnson, by virtue of assignments, had the sheriff’s deed to the lot, under each of these sales. The judgments upon the mechanic’s liens were rendered one in Mareh and one in April, 1847.
    McLagan brings the case to this Court, and assigns for error, that the Court Improperly considered as evidence in the cause the reversed judgment of Brown et al., they being the plaintiffs in the judgment, and purchasers had notice of all irregularities ; that Brown et al. were not judgment creditors as to this property, and had no right to redeem, and the overruling the motion for a new trial.
    M. Y. Johnson, for plaintiff in error.
    Thompson Campbell and R. S. Blackwell, for defendants in error.
   Opinion by Mr. Justice Catón :

The premises in question were sold to A. L. Holmes, under his judgment, on the 29th of August, 1846, who assigned his certificate of purchase to Cooney, on the 27th day of August, 1847, and he assigned to Johnson, on the 24th of November, 1847. On the 10th of March, 1847, the judgment debtor conveyed the premises to W. Holmes and Mary Burgess. On the same day the Browns obtained their judgment, which, however, did not become a lien upon the debtor’s real estate till the 22d of the same month. They redeemed from the sale to A. L. Holmes, on the 27th of November, 1847, two days within the fifteen months from the date of that sale, and resold the premises on the 21st of December, 1847, and purchased them in at the amount of the redemption money, and took a sheriff’s deed. Their judgment, under which they redeemed, was reversed at the December term of this Court, 1848.

It will be seen, that the judgment debtor sold his equity of redemption to W. Holmes and Burgess, before the Brown judgment became a lien upon the premises. They, however, never redeemed, and the question is, could the last judgment creditors redeem from the first sale, after the expiration of the twelve months, within which the purchasers from the judgment debtor might have redeemed? We think, according to the decision in Sweezy vs. Chandler, ante, 445, they did possess that right. In principle, there is no difference between that case and this, so far as this question is concerned. There the Chandlers were held to be the assignees of the judgment debtor, and as such, bound to redeem within the twelve months, although they obtained their title under a sheriff’s sale. Certainly Holmes and Burgess are none the less such assignees, because they obtained their title by a voluntary conveyance from the debtor. The rights acquired and duties imposed under either purchase were the same. Both had a right to redeem, which was paramount to the right of any judgment creditor, who had not acquired a lien, before the date of their purchases; which right, however, they were bound to exercise within the twelve months ; and if they neglected to do that, their rights of redemption were entirely and forever gone. They ceased to have any more rights or interest in the premises than as if they had never possessed the right of redemption. That right had expired by the lapse of time, and could not with propriety be thrust in between the conflicting claims ■ arising under the sale upon the first judgment, and the right to redeem claimed under the last. Upon the termination of their rights, the case stood as if they had never existed, and had there been no assignment of the equity of redemption, the right of the subsequent judgment creditors to redeem would never have been questioned. Allowing the right of redemption to the last judgment creditors, is doing no violence to those who have no rights to violate, and the purchaser under the first judgment cannot complain, for he purchased with the express condition imposed by the statute, that “ any judgment creditor” might redeem affer the expiration of twelve, and within fifteen months, from the date of his purchase. Why should the first purchaser claim a benefit from the temporary existence of a right in third persons, which they have thrown away, and in which he had no interest, and with which he had no connection? But it was insisted, that to allow a judgment creditor to redeem, whose judgment was obtained after the sale by the judgment debtor, is, in effect, saying that the latter shall not sell the equity of redemption because the title conveyed is liable to be overreached by a subsequent judgment creditor, who is thus allowed to redeem from the prior sale. This is misapprehending the effect of the decision altogether. It is only when the purchaser of the equity of redemption has lost his right, by neglecting to redeem, that the right of redemption attaches to the subsequent judgment. In this state, at least, the principal estate continues in the judgment debtor, after the sale on execution, so long as the equity of redemption continues, and indeed until the sheriff’s deed is executed, and if he or his assignee redeems from the sale, or purchases the certificate of sale, the rights acquired under the first purchaser being thus united with the principal estate, are merged in it, and the right of redemption to subsequent judgment creditors is thus cut off, even before it ever attaches. If the redemption is made by the judgment debtor, who continues to hold the estate, of course it is subject to a subsequent judgment, but if redeemed by a bona fide assignee of the judgment debtor, the title as clearly would not be held subject to the subsequent judgment. He would hold a perfect title, discharged from all prior liens, and there would be nothing to which a subsequent judgment could attach—no existing rights to which it could reach back. In case a junior judgment were obtained before the assignment of the equity of redemption, then as the lien would attach to the equity of redemption while in the hands of the judgment debtor, the creditor’s rights would be secured, by virtue of the lien, as effectually and upon the same principle that they would have been had the judgment debtor owned the entire estate and sold it after the judgment.

But the judgment under which the redemption was made was afterwards reversed, and as the judgment creditors were the purchasers at the second sale, it is insisted that they acquired no title, or if they did, it was defeated or extinguished by the reversal of their judgment. As a general rule, it was not denied that a purchaser at a sheriff’s sale, upon an execution which is issued upon a judgment which is not absolutely void, but only irregular or erroneous, gets a good title, although the judgment may be afterwards reversed for such irregularity or error. But it is insisted that it is not so where the plaintiff in the irregular judgment becomes the purchaser, because he is Responsible for and is supposed to be cognizant of all the irregularities and errors in his judgment. To a certain-extent this may he, and indeed, we think is true, notwithstanding the eases referred to in Kentucky, holding a different.doctrine ;-butclearly, the rule ought not to be extended beyond what the interest of the debtor or his grantees may require. No one else should-he allowed to question the title acquired by the purchaser, who 'was the plaintiff in the reversed judgment; and even with-this-limitation, the principle may have a tendency, to a certain-extent, to diminish -'competition at sheriff’s sales, which is against-the policy -of the law, as being prejudicial to both debtors and' 'creditors. But then, it-is but right and reasonable, that upon’ 'the -reversal -of -a judgraentythe judgment debtor should be restored to what he has-lost'by- reason of the erroneous judgment,-, as far as possible, without injury to innocent parties, and for that purpose the general policy-of the law may be allowed to yield to a certain extent. But in- ,Uo event should gross and manifest injustice be perpetrated, -even to one who has obtained and enforced an-erroneous judgment. When an innocent party is the purchaser, only the money produced by the sale can be restored to the judgment -debtor, without injustice to the purchaser; but, as a general rule, -when the plaintiff in the erroneous-judgment has purchased, he should restore the specific property, for it is his duty to make all the reparation in his power,-to-one whose property he has wrongfully sold. But certainly no one but the defendant, or his assignee, should be allowed to complain, or claim any benefit on account of such reversal. Although he may reverse the judgment, the defendant may not choose to complain of or may even prefer to affirm the sale. It may he for his interest to do so. Suppose the chief value of the estate sold consisted in improvements which had, through the carelessness of the purchaser, or by accident, burned down, so that when the judgment was reversed it was not worth one fourth of the amount of the sale, can it be tolerated for a moment that'a stranger may assert a supposed right of the debtor and defeat the purchaser’s title, and thus prevent the defendant from- recovering the price for’ which the premises sold, instead of the premises themselves ?' The proposition would be as absurd in reason as revolting to justice. A stranger cannot thus use my right for his benefit to my injury. We cannot go the length of saying that the title acquired by the plaintiff under the judgment is absolutely divested and defeated, as to all the world, by the reversal of the judgment. It is time enough to say that the purchaser acquired no title, when the party injured complains. Here the defendant below did not connect himself with the judgment debtor, and it is not for him to say that a wrong has been done.

But this is not like the ordinary case of a sale to a plaintiff under his judgment,, which has been reversed. Although it may be, that in form, the last sale was upon an execution issued upon the junior judgment, yet in substance the transaction was somewhat different. The main question is, had the plaintiff in that judgment a right to redeem from the previous sale ? At the time of the redemption that judgment was in full force, and the right to redeem under it we have already attempted to show. Nor can we appreciate the propriety of saying that the reversal of that judgment defeated the rights acquired by virtue of that redemption and the subsequent sale and conveyance. A right without an interest is not easily appreciated, and neither the defendant in that judgment nor his grantee had any possible interest in defeating the title acquired, for, as before shown, all his right was entirely gone before the judgment creditor could redeem ; so that the only conflicting rights must arise between the purchasers under the two judgments or their assigns. Who has' the better right, as between them, can admit of no doubt. In order to redeem, the redeeming creditor must pay the full amount for which the premises were first sold, and if we say that he shall lose his title, by reason of the reversal of the judgment, his loss is not confined to the title alone, but he must also lose the redemption money, for there is no provision made for restoration to him. And for whose benefit are all these rights and interests of the redeeming creditors to be sacrificed P Not for the benefit of the judgment debtor,, for if the title is not allowed to remain with the redeeming creditor, it must go to the purchaser under the first judgment, who has already been refunded the purchase money which he paid, and out of the pocket, too, of the man from whom he wrests the title; and not by reason of any merit of his own, but because a judgment has been reversed, to which he was not a party, and in which he had no interest. Shall the one who pays for the land not get it, and he who gets the pay retain the premises ? It would require ingenious reasoning to reconcile an upright mind to such justice. If the judgment debtor, or his assignee, has any interest in the controversy, in such a case it must be to sustain the right of redemption, for then he has a chance of realizing something from the second sale, while in no contingency can it result in any injury to him; and yet if a stranger or the purchaser under the first judgment, shall be allowed to defeat the right of redemption, by reason of the reversal of the judgment, it can only be upon the ground that the judgment debtor’s rights have been sacrificed, under the judgment, while it remained in force. ■

But we are not obliged to rely upon this manifest sense of justice to sustain the title acquired under the last sale. The statute directing the conveyance to be made to the redeeming creditor directs the sheriff “to execute a deed to such creditor as the original purchaser, and such deed shall be as valid and effectual in law as if such creditor had been the original purchaser.” From this it is manifest that the title acquired by the redeeming creditor does not depend alone upon the validity of his own judgment, but rather upon the judgment under which the original purchase was made. His own judgment, it is true, must be sufficient to entitle him to redeem, but when that is the case, then he succeeds to all the rights of the first purchaser, and his title would seem to be as invulnerable as it would have been in the hands of the purchaser from whom the redemption was made. This statute clearly excludes the idea that the last purchaser’s title may be defeated by the reversal of the judgment under which the redemption was made.

The outstanding title attempted to be shown in Johnson, which he derived under the judgments obtained in the two lien suits, may be disposed of in few words. We have no doubt that the lien provided for by chapter 65, R. S., does not commence or attach antecedently to the doing of the work or furnishing the materials ; and, in this case, the first judgment became alien upon the premises before any of the work was done or materials furnished, for which those judgments were obtained; so that the title derived under that judgment must necessarily take.priority to that derived under them, at least so far as the lot is concerned ; and under the latter judgments they did not attempt to sell the building separate from the lot, even admitting that they could have done so. But none of these judgment creditors were made parties to those lien suits, and consequently they are not hound by nor can their rights be prejudiced by those judgments. They might have been made parties, (Kimball vs. Cook, 1 Gilman, 423,) when they would have had an opportunity to defend their interests; but as it is, those adjudications were ex parte, as to them, and the Circuit Court' very properly held that they could not affect the title acquired under the Holmes judgment.

We perceive no error in the judgment, and it will have to be affirmed, with costs.

Judgment affirmed.


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    Martin Gray, plaintiff in error, vs. Calvin Rawson, defendant in error.

      Error to Jo Daviess.

    The goods of a sub-lessee, of a part of demised premises, are not liable to be distrained for the rent reserved in the original lease.
    This was a proceeding under the landlord and tenant act, commenced in the Jo Daviess Circuit Court, wherein Gray filed his distress warrant against Rawson, to recover seven months’ rent then due said Gray, for premises in the possession of said Rawson and two others, hut which had been demised by said Gray to Charles H. Wheeler, by written lease, under whom said Rawson and the others held possession of said premises. Gray, by his attorney, moved the Court to assess the amount due him by virtue of the facts above stated. Upon which the Court, Browne, Justice, presiding, at the March term, 1848, of said Court, found for the said appellee, Rawson, that no rent was, at the time of the levy of the distress warrant, due from him to the appellant, Gray, and that Gray took nothing by his writ. To this finding Gray excepted, and brought the cause to this Court.
    T. Campbell, for plaintiff in error.
    M. Y. Johnson, for defendant in error.
   Opinion by Treat, C. J.:

The seventh section of the sixtieth chapter of the Revised Statutes declares, that “In all cases of distress for rent, it shall be lawful for the landlord, by himself, his agent or attorney, to seize for rent, any personal property of his tenant that may be found in the county where such tenant shall reside; and in no case shall the property of any other person, although the same may be found on the premises, be liable to seizure for rent due from such tenant.” Under this provision, the Circuit Court held that the goods of a sub-lessee of a part of the demised premises were not liable to be distrained for the rent reserved in the original lease. The propriety of that ruling 'is the only-question in the case. By the common law, any goods found by the bailiff on the premises, irrespective of the ownership, were liable to seizure for rent. The statute limits the right of distress to the goods of the tenant. A sub-lessee is not, in a general sense, the tenant of the original lessor. He is not personally liable to the latter for the payment of the rent. There is no privity of contract between them. The owner of the premises cannot maintain an action against a sub-tenant for a breach of the covenants contained in the lease. Archbold’s Landlord and Tenant, 69; Halford vs. Hatch, Douglas, 183. Nor can he maintain assumpsit for the use and occupation of the premises, for the law, in such case, implies no promise on the part of the sub-lessee to make compensation to the first lessor. An under-tenant is only liable to his immediate lessor. 4 Kent, 96. The statute restricts a landlord, in the exercise of the remedy by distress, to the seizure of the goods of the party who is personally responsible to him for the rent reserved. For the purposes of this remedy, the relation of landlord and tenant exists only between the parties to the demise. It is true that a sub-tenant is sometimes called the tenant of the original lessor, but it is in reference to a very different question than the liability to pay rent. There is a privity of estate, not of contract, between them. If the relation of landlord and tenant once attaches, it binds all who may acquire the possession of the premises, from or through the tenant, immediately or remotely. The possession of an under-tenant is in subservience to the title of the original lessor, and he can do no act in disparagement of that title. He cannot acquire a possession adverse to the first lessor, for the law regards his possession as the possession of the lessor. These principles are applied only for the purpose of protecting the title to the estate.

The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.


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    Hiram Brown, impleaded with John J. Griswold et als., plaintiff in error, vs. Matthew Throckmorton, defendant in error.

      Error to Kendall.

    A right of pre-emption does not confer upon the person having it any title to the land or to the timber standing thereon. It is but a license from the government to occupy the land, and the right to purchase the same, within a specified time, at the mini-rmim price.
    This was an action of trespass de bonis asjjortatis, brought by Throckmorton against Brown and others, to recover the value of certain rails, which had been cut upon land to which Brown claimed a pre-emption, but to which he did not acquire any title from the government until after the rails had been made.
    Brown, in defence, offered to prove his occupancy of the land upon which the rails were cut, and his right to a pre-emption of the same under the law of the United States, and also a certificate from the land office of the purchase of the land, but obtained after the rails were cut; which testimony was excluded by the Court, Catón, Justice, presiding. The cause was submitted to a jury, who found a verdict for $ 12. Brown sued out this writ, and assigns for error, the excluding of the testimony from the jury which went to show his claim of pre-emption to the land, and in excluding the certificate of purchase.
    S. W. Randall, for plaintiff in error.
    T. L. Dickey and W. H. L. Wallace, for defendant in error.
   Opinion by Treat, C. J.:

This was an action of trespass, brought by Throckmorton against Brown and others, to recover the value of certain rails. It appeared in evidence that Throckmorton, during the winter of 1844, made the rails in question from timber cut by him on a quarter section of land belonging to the United States, and that Brown took and carried them away, in March or April following. It also appeared that Brown resided on the land from the first of April, 1843, up to the time of the trial.

The defendants offered to read in evidence certified copies of certain papers from the records of the land office at Chicago, for the purpose of showing that Brown was entitled to and claimed a pre-emption on the quarter section of land, from the time of his residence thereon; and also a certificate of the register, showing that he entered the same on the 12th of April, 1844. The Court rejected this evidence, and the propriety of that decision is the only question in the case.

The evidence admitted showed a prima facie right in the plaintiff to recover the value of the rails; and the evidence offered by the defendants, and excluded by the Court, neither tended to rebut the case thus made, nor establish any defence to the action. The timber out of which the rails were made belonged to the United States and not to Brown. Admitting that Brown had at the time a valid pre-emption, that did not confer on him any title to the land or the timber standing thereon. He had, at most, but a license from the government to occupy the land, and the right to purchase the same, within a specified time, at the minimum price. On the entry of the land, he acquired no interest in the rails previously made by the plaintiff thereon. The timber was severed from the freehold, and became personal property, and did not pass with the land to Brown by the grant from the United States. But it is needless to discuss the question, as the case of Wincher vs. Shrewsbury, 2 Scammon, 283, is expressly in point, and perfectly decisive of this case. In that case, Shrewsbury made a quantity of rails from timber growing on land of the United States, and left them piled up on the land. Wincher afterwards purchased the land, and converted the rails to his own use. Shrewsbury then brought an action of trespass against him, and recovered a judgment for the value of the rails; which was affirmed in this Court. The Court said : “ Had the defendant any title to the rails in question, and how hid he acquire it? At the time the trespass was committed by the plaintiff, the land, and consequently the timber growing on it, of which the rails were made, belonged to the government. The cutting of the timber was therefore an injury and a trespass against the government, and it had a legal remedy. Therefore, the defendant had'neither a right of property, nor a right of action, at the time of the plaintiff’s trespass, in making the rails. To what then did he acquire title, by a subsequent purchase of the land? Certainly not to a right of action for a previous trespass; nor to the timber which had previously been severed from the land, and converted into rails, farming utensils, furniture, or any thing else.”

The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.


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    Leopold Massure, plaintiff in error, vs. Joseph D. Noble, defendant in error.

      Error to Jo Daviess County Court.

    A witness, who had been an attorney in a petition for partition, was permitted to give in evidence his conclusions as to the correctness and sufficiency of the proceedings. This was held to be erroneous; he should have stated the facts only.
    A stranger is not bound by nor can he take advantage of an estoppel.
    This was an action of ejectment, commenced in the Jo Daviess County Court, to recover lot number forty-three, in the city of Galena. The cause was submitted to the Judge, Hugh T. Dickey, for trial, without the intervention of a jury; and verdict and judgment were entered for the defendant below, the defendant in error here. Several errors were assigned; but as one only is noticed in the opinion, the others will be disregarded. The decision of the Court furnishes a sufficient statement of facts, as to the point decided.
    M. Y. Johnson, for plaintiff in error.
    Hempstead & Washburne, for defendant in error.
   Opinion by Mr. Justice Trumbull :

The only question necessary to a determination of this case, arises out of the introduction of parol evidence by the defendant, to show the contents of a petition for partition, which had been lost from the files of the Court. A witness was permitted to testify, that, as attorney, he filed the original petition, and sued out process; that the same was duly served, “ and that the petition and all the proceedings were regular and in proper form, and that the petition set forth all that was necessary as to the rights of the parties, and other matters necessary and proper.” The admission of this evidence was clearly improper. The witness should have been required to state the contents of the petition, that the Court might determine its sufficiency. His opinion that it contained all that was necessary and proper may have been erroneous. At all events, he was not the proper judge of that matter; and the Court erred in admitting in evidence the conclusions of the witness, instead of requiring him to state facts. But, in no event, was the evidence of this witness sufficient to supply the lost paper. Neither the judgment in partition, the report of the commissioners, nor the order of sale, contains any description of the premises sought to be divided, except by reference to the “lot described in said petition.” The witness, called to testify as to the contents of the lost petition, gives no description of the land described therein. How, then, could the Court know that the proceedings in the partition suit, sought to be set up by the defendant in bar of the plaintiff’s recovery, had any thing to do with the land in controversy P It is, however, insisted, that the plaintiff has ratified these proceedings, by executing to the commissioners who made the sale of the premises in question, and the purchasers from them, a release, and that he is thereby estopped from denying that the proceedings were not regular and the sale valid. This might and probably would be the case, if the release were set up by one who was a party or privy to it; but so far as the record shows, the defendant is a stranger to the transaction, who does not connect himself, either with the purchasers, the commissioners, or the title derived from them; and the principle is well settled, that a stranger shall not be bound by or take advantage of an estoppel. 7 Bac. Ab., 620.

The judgment is reversed, and the cause remanded.

Judgment reversed.


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    Rachel Skiles, et al., appellants, vs. Abraham G. Switzer, et al., appellees.

      Appeal from Winnebago.

    All persons to "be affected by a decree in chancery, should be made parties to the proceeding»
    This was a bill in chancery, filed by Switzer and others against the appellants, to set aside certain conveyances and mortgages, made, as is alleged, in fraud of creditors.
    At the December term, 1849, of the Winnebago Circuit Court, the cause came on to be heard, before Henderson, Judge, who decreed in favor of the appellees, complainants against the appellants. The case was brought by appeal to this Court by the respondents to the bill; but as the case is decided upon a question not involving the merits of the case, it is not deemed necessary to give an extended statement of the case.
    R. S. Blackwell and N. H. Purple, for the appellants.
    Marsh & Wright, for the appellees.
   Opinion by Mr. Justice Catón :

It is a fatal objection to this decree, that the infant heir of Udell was not a party. The legal title to the property in controversy descended to her, and although her father held it in trust, yet no decree, divesting her of that legal title, could be binding upon her, unless she was properly represented by a guardian appointed to protect her interest. The primary object of the decree was to divest her of the legal title, and as that was not legally done, the balance of the decree, which provides for the disposition of the proceeds of the property, must necessarily be reversed also, for there is nothing upon which it can operate. When an issue shall be formed between the complainants and the infant defendant, new or additional proofs may be taken; and as the evidence, when the suit is again brought to a hearing, may be very different upon the various questions which have been controverted here, it is manifest that it would be improper for us to proceed to examine and decide them, while it is possible they will not arise again, and which, at any rate, may not and probably will not be again presented in the precise form in which they are now before us. We might, it is true, lay down the rules which are to govern in the delivery of deeds, but that would be of but little use here, where the principal controversy is in relation to the facts.

The decree of the Circuit Court is reversed, with costs, and the suit remanded for further proceedings.

Decree reversed.


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    Joseph Reynolds, appellant, vs. Joseph Perry, appellee.

      Jlppeal from Livingston.

    Where an appeal has been improvidently granted, the appellee, by filing a transcript of the record in this Court, may, after notice to the opposite party, on motion, have the appeal dismissed.
    This was an action of replevin, commenced in the Circuit Court of Livingston county, which was submitted to a jury, who found a verdict for the plaintiff, on all the issues joined. Thereupon, the defendant below prayed an appeal to this Court; which was allowed. The plaintiff below and appellee here filed a copy of the transcript, and moved the Court for a dismissal of the appeal ; which was allowed by the Court.
    A. Hoes, for appellee.
    Glover & Cook, for appellant.
   Opinion by Treat, C. J.:

Perry brought an action of replevin against Reynolds, and recovered a judgment therein for costs. The Court granted Reynolds an appeal to this Court. The judgment was entered on the 18th of May last, and the appeal bond was filed on the 11th of June. The appellee, having given notice to the counsel for the appellant, now files a copy of the record, and enters a motion to dismiss the appeal, because an appeal will not lie in such a case. It is very clear that the order for the appeal was improvidently granted. Appeals are only allowed in cases u where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of twenty dollars, or relate to a franchise or freehold.” R. S., ch. 83, sec. 47. Thirty days not having intervened between the date of the order granting the appeal and the first day of the present term of this Court, the appellant is not required to file the record before the third day of the next term. R. S., ch. 83, sec. 48; Vance vs. Schuyler, 4 Scammon, 286. It is therefore insisted, that the appellee cannot interpose this motion until the record is filed by the appellant. We are inclined to hold that the motion is properly made. It is true, that the appellee could not enter a motion to dismiss the appeal for the want of prosecution, until the time had elapsed for the appellant to file the record. But, we think, the appellee should be permitted, on filing a copy of the record, and giving reasonable notice to the appellant, to make a motion to dismiss an appeal, which was improvidently granted, and which improperly restrains him from collecting his judgment. No injustice will result to the appellant. If he has obtained an appeal in a case which the law does not authorize, he cannot complain of its dismissal. If he has merits in his case, he can enjoin the collection of the judgment, by suing out a writ of error, and obtaining a supersedeas. It is not the filing of the record by the appellant which gives this Court jurisdiction of an appeal. The case is, in contemplation of law, pending in this Court the moment the appeal bond is executed and filed with the clerk of the Circuit Court. Owens vs. McKethe, 5 Gilman, 79; Simpson vs. Alexander, ibid, 260.

The appeal will be dismissed, with costs.

Appeal dismissed.