text:
    Joseph M. Blackerby et al., County Commissioners of Pike County, v. The People of the State of Illinois, ex rel. Benjamin B. Metz.

      Motion to dismiss suit.

    A party against whom a peremptory mandamus had been awarded, presented a copy of the record in the case to one of the Justices of the Supreme Court, and obtained an order for a supersedeas-on entering into bond, &c. The bond was executed and filed in the Circuit Court, but the record was never filed in the Supreme Court, nor was a writ of error issued. The counsel for the opposite party, supposing the case to be pending in the Supreme Court, moved to dismiss it for want of prosecution. The motion was overruled.
    An order allowing a supersedeas does not operate as a suspension of the judgment of the Circuit Court until the bond is filed in the office of the Clerk of the Supreme Court, and a writ of error is issued.
    Motion to dismiss the above entitled suit for want of prosecution, entered by M. Hay, counsel for Metz, the Relator.
    The proceedings in the Circuit Court are briefly stated in the Opinion of this Court.
   The Opinion of the Court was delivered by

Treat, C. J.

The Circuit Court awarded a peremptory mandamus against the County Commissioners of Pike county, to compel them to make an order on the county treasurer for the payment of $125 to B. B. Metz. The Commissioners presented a copy of the record to one of the Justices of the Supreme Court, and obtained an order for a supersedeas on their entering into bond. The bond was executed and filed in the Circuit Court, but the record has never been filed in this Court, nor has a writ of error been sued out. The counsel for Metz, on the supposition that the case is pending in this Court, has entered a motion to; dismiss it for want of prosecution. The motion cannot be entertained. The case is not before this Court. The judgment of the Circuit Court is not superseded, but process can at any moment issue to enforce it. A writ of error must be sued out before the ease can be considered as pending in this Court. The order allowing a supersedeas does not operate as a suspension of the judgment, until the bond is filed and the writ of error issues. Rev. Stat. 421, § 54. The bond must be filed with the Clerk of this Court. Rule 5, 1 Scam. 12. When these proceedings are had, the Clerk issues the certificate prescribed by the’6th rule of this Court, the object of which is to notify those interested that all proceedings on the judgment are to be stayed until the determination of the writ of error.

Motion overruled.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Robert Smith, plaintiff in error, v. John Irwin, defendant in error.

      Error to Madison.

    Under the Revised Statutes, there cannot he a trial of an appeal in the Circuit Court until the appellee is before the Court by the service of process, or the entry of an appearance.
    The 64th section of the 59th chapter of the Revised Statutes does not embrace the case of an ordinary appeal, but only applies to cases in which the appeal is prosecuted by one of several parties to a judgment, where, as to the parties not joining in the appeal, the cause may be beard at the second term.
    This was a suit originally commenced by Irwin against Smith, and heard before a justice of the peace of Madison County, when a judgment was rendered in favor of Smith. Irwin appealed to the Circuit Court, and a summons was issued to the appellee to appear, &c. which was returned “not found.” An alias was issued returnable to the next term of the Circuit Court, upon which the sheriff made a - similar return. At the said term, (March term, 1847,) the lion. Gustavus P. ICoerner presiding, the appeal was tried and a judgment rendered in favor of the appellant for $79-75. To reverse that judgment, Smith prosecuted a writ of error.

      L. Davis Sr JV. G. Edwards, for the plaintiff in error.
    There is but a single point made by the assignment'of errors. The Court erred in proceeding to try the cause at the second term, there having been no service of process upon the appellee.
    Under the law as it existed prior to the enactment of the Revised Statutes, this course would have been correct; but that provision was not incorporated into the revision. Actual service upon the appellee was, therefore, necessary, before a judgment could be rendered against him. See R. L. 395, §§ 32, 33; Rev. Stat. 345, § 61.. *
    The 64th section of the Revised Statutes applies only to cases where one of several parties takes an appeal.

      J. Gillespie, for the defendant in error.
    The Circuit Court did not err in the construction of the statute. In order to arrive at a proper conclusion, all the statutes upon the same subject should be construed together.
    Foi; the proper rule of construction, see Bryan v. Buckmaster, Bre. Ap. 24; Rev. Stat. 473, §36.
   The Opinion of the Court was delivered by

Treat, C. J.

This judgment must be reversed. The Court had no jurisdiction over the person of the plaintiff in error. The former provision of the statute, authorizing the trial of an appeal case at the second term after the taking of the appeal, whether the appellee be summoned or not, was not incorporated into the Revised Statutes; and .as the law now stands, there cannot be a trial of an appeal case until the appellee is before the Court by the service of process or the entry of an appearance. The 64th section of 59th chap. Rev. Stat. does not embrace the case of an ordinary appeal, but only applies to cases in which the appeal is prosecuted by one of several parties to a judgment, where, as to the parties not joining in the appeal, the cause may be ¡ heard at the second term. The former provision, no doubt inadvertently left out of the revision, was a salutary one in practice, and may with much propriety be re-enacted by the Legislature.

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

Judgment reversed.


text:
    Justus Vairin et al., plaintiffs in error, v. Francis H. Edmonson, defendant in error.

      Error to Sangamonf

    The proper rule for the computation of time, under the section of the Attachment Act, requiring that sixty days should intervene between the first publication of notice and the term of Court, is to exclude the day on which the notice was first inserted in the newspaper, and include the day on which the term commenced.
    The published notice of the pendency of a suit, accompanied by the publisher’s certificate forms a part of the record of the case, and takes the place of an officer’s return of service.
    To sustain a judgment by default, the record should affirmatively show that the defendant was regularly served with process, or in the case of an attachment, that he was duly notified of the proceeding. *

    Foreign Attachment, in the Sangamon Circuit Court, brought by the defendant in error against the plaintiffs in error, and S. M. Tinsley and others as garnishees.
    The principal defendants were not personally served with process, but a notice of the pendency of the suit was published in a newspaper, the first insertion of which was on the 27th day of May, A. D. 1842. The first day of the return term of Court was the 25th day of July ensuing, and on that day judgment was rendered against the principal defendants. A judgment was rendered against tha garnishees at a subsequent day of the same term.

      S. T. Logan, for the defendant in error.
    By the law then in force, (See Revised Laws, 1833, page 78, proviso to § 11,) in cases of foreign attachment, “if sixty days shall not intervene between the first insertion of such notice, and the first term of the Court, then the cause shall be continued until the next term of the Court.
    Did sixty days intervene between the first insertion of the notice and the next term of the Court?
    The mode of computing time in this case is by including one day and excluding the other, either the day of insertion, or the day on which the term was held. Bigelow v. Wilson, 1 Pick. 485; Jackson v. Van Valkenburgh, 8 Cowen, 260; Homan v. Liswell, 6 do. 659; Ogden v. Redman, 3 A. K. Marsh. 234. See, also, 5 Johns. 232; 10 Wend. 422 ; 2 A. K. Marsh. 264; 4 Scam. 421.
    The first insertion was on the 27th of May, and from that to the 25th of July inclusive, only fifty nine days intervene. Therefore, it was error to enter judgment at the first term. At the second term, a successful -defence would have been made.

      J. C. Conhling, for the defendant in error.
    The plaintiffs in error cannot, under the present state of the record, take advantage of a Want of proper publication, because the published notice is no part of the record, and can only be made so by a bill of exceptions. Besides, there is no statement in the record that it contains all the evidence. Sims v. Hugsby, Bre. Ap. 27; Smith v. Lusk, 3 Scam. 411; Voorhees v. The Bank, &c. 10 Peters, 449; Parker v. Miller, 9 Ohio, 108.

      Logan, in reply.
    The statute makes it the duty of the clerk, on the return of an attachment, to prepare a notice of the pendency of the suit, for publication, and to cause the same to be published in order to bring the party into Court. It, therefore, necessarily becomes a part of the record.
   The Opinion of the Court was delivered by

Treat, C. J.

This was a foreign attachment sued out in March, 1842. The statute then in force provided that the defendant should be notified of the pendency of the attachment by the publication of a notice in a newspaper for four weeks successively; and in case sixty days should not intervene between the first insertion of the notice and the first term of the Court, the cause should be continued. Rev. Laws, 1833, 87, § 11. The only question presented by the record is whether the requisite notice was given. The notice was first published on the 27th of May, and the succeeding term of the Court commenced on the 25th day of July. The proper rule for the computation of time in such case is to exclude the day on which the notice was first inserted, and include the day on which the term commenced. Ewing v. Bailey, 4 Scam. 420. By this rule, but fifty nine days intervened. The'Court, therefore, should have continued the cause instead of proceeding to enter a judgment by default. It is insisted for the defendant in error that the notice and the accompanying certificate of the publisher form no part of the record of the case. We think otherwise. The statute makes the certificate of the publisher with a eipy of the notice annexed, sufficient evidence of the fact of publication. Rev. Laws, 1833, 62. The notice stands in the place of process, and performs the same office. If is issued by the clerk, and the certificate of the publisher maybe likened to the return of an officer. The defendantis not before the Court until the notice has been regularly given, and the time allowed him to appear has expired. The Court has no more authority to enter judgment against him till this has transpired, than it has to render a judgment against a defendant in an ordinary action who was not served with process ten days prior to the commencement of the term. The record should show that the notice was given and for the length of time required by the statute. To sustain a judgment by default, the record ought affirmatively to show that the defendant was regularly served with process, or in the case of an attachment, that he was duly notified of the pendency of the proceeding. ■ The cases of Voorhees v. The Bank, 10 Peters, 449, and Parker v. Miller, 9 Ohio, 108, are not in point. There, the question of the regularity of the proceedings arose collaterally, and not directly, as in this case.

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

Judgment reversed.


text:
    Alexander Sargeant, who sues for the use of Alonzo Huntington, plaintiff in error, v. Sherman Kellogg et al., defendants in error.

      Error to Kendall.

    The possessory claims of settlers on the public lands have been recognized as valid, and the proper subject matter of sale and transfer, by various statutes and decisions in this State.
    Where a note is assigned after maturity, the maker is permitted to interpose the same defence against the assignee, which he might make in an action brought in the name of the payee.
    Under the statute of this State, unliquidated damages arising out of contracts, express or implied, may be set off in actions ex contráctil. This, however, cannot be done, where the claim for unliquidated damages is totally disconnected with the plaintiff’s cause of action.
    Where various objections may be made to evidence, some of which may be removed by other proof, the party making the objection should point out special y those insisted on, and thereby put the adverse party on bis guard and afford him an opportunity to obviate them.
    To constitute a valid claim to unsurveyed public lands, the claim must be so plainly marked and designated, as to be distinguished from adjacent lands.
    Debt, in the Kendall Circuit Court, brought by the plaintiff in error against the defendants in error, and heard before the Hon. John D. Catón and a jury, at the August term, 1813, when the issues were found for the defendants.
    A statement of the pleadings and evidence in the case will be found in the Opinion of the Court.

      0. Peters, for the plaintiff in error.
    1. The written instrument showing the sales of the claim or improvements was improperly admitted as evidence, because,
    1. The defence set up is, that the consideration of the note has failed, or that it was without consideration. To show this, the defendants aver that the consideration was the sale of a claim on Government land. The written instrument shows that it was given for improvements. It was therefore inadmissible as not tending to "prove the issue, but rather disproving the issue. The Court must try the issues as the parties make them. Phelps v. Jenkins, 1 Scam. 48.

      2. There was no proof of the execution of the instrument. This is not a case where its execution must be denied under oath, but its execution must be proved. Rev. Stat. 415.
    II. So, also, the parol proof offered and permitted to go to the jury was inadmissible, for the reason that the written instrument shows that the note was given, not for a claim as alleged in the pleading, but for improvements. Proving failure of title to the claim or fraud in the sale of the claim, in no way tended to show a failure or want of consideration of a note given for an entirely different subject matter, viz: improvements upon the public lands. These improvements are made a good consideration for a note or contract by statute. Rev. Stat. 366, § 1; R. L. 420.
    III. The parol proof was also inadmissible, because it contradicted the written instrument introduced by the plaintiffs themselves.
    That instrument was conclusive that there was no such failure of consideration, or want of consideration as is set up in the defence. The parties are bound by the recitals in the deed.
    The evidence related wholly to a tract of land which did not constitute any part of the consideration of the note, thus attempting to contradict and vary the terms of the contract which the defendants themselves had read in evidence. The rule is too well settled to require a reference to authorities to sustain it.
    IV. The whole defence set up in the notice is insufficient, because it no where appears that the defendants were ousted of their possession, or that Pierce ever asserted any right to the claim, or ever was in possession thereof, or that defendants have in any way suffered from the supposed fraudulent representations, or are likely to do so.
    V. The decision of the Court was erroneous in refusing the instruction asked for by the plaintiff, and in giving the instruction asked for by the defendants.
    The objection to this instruction is based on the statute of 1837, re-enacted in the Revised Statutes. Rev. Stat. 336, §§ 2-4. The statute requires that the claim shall be “so plainly marked that it can be plainly designated and distinguished from adjacent lands.” To say that a natural object is marking out the claim is an absurdity. The object and language of the statute requires that some affirmative act should be done. Doing nothing and leaving the land as nature left it would not notify those wishing to make adjacent claims how far to extend them, or when they were encroaching upon another’s claim. The intention of the Legislature must have been that the party claiming by constructive possession should do something to indicate his intention.
    The set-off ought not to be allowed. None of the cases go so far as to allow it. The set-off here claimed does not arise out of the contract of sale and giving of the note, but out of an alleged fraud inducing to the contract.
    In Edwards v. Todd, 1 Scam. 463, the set-off claimed, arose out of the conduct of the captain of the vessel in the execution of the contract. He had contracted to carry the goods, the law implying proper diligence in the fulfillment of the contract; the loss by the negligence and carelessness in doing what he had agreed to do, is subject matter of set-off. The Court say: (p. 465,) “The investigation, then, is confined to an ascertainment of the performance of the contract between the parties, according to its legal import and effect,” and whether the contract has been performed, &c. The Court, also, (on p. 467,) place the decision on the ground that the master or owner would be liable in an action of assumpsit for the loss of the goods.
    In Nichols v. Ruckels, 3 Scam. 298, which was an action to recover an account, the set-off claimed grew out of a written contract for the sale of a lot, and does not reach this case.
    I rely on the case of Hawks v. Lands, 3 Gilm. 227, 232, to show that this set-off should not be allowed. This action was assumpsit for money lent, &c., and account stated; set-off pleaded of amount of the value paid for a lot, &c., and the Court say, that the cases have only gone the length, that damages arising out of the contract on which the suit was brought, are properly the subject of set-off, and that no warrant is found for extending it further. The contract in this case was for the sale of improvements on public lands, and for an unimproved claim. This suit is not brought for any breach of this contract of sale, or in any way to enforce it. The amount here claimed as a set-off, is in the nature of damages for a false representation of title, inducing to the sale. The remedy for this, for the defendants would be, not an action of assumpsit, but an action on the case for the deceit. Ward v. Wiman, 17 Wend. 193.
    In Massie v. Crawford, 3 Mon. 219, the Court say: “In an action founded upon a deceit in the sale of a thing, the declaration must necessarily be in tort.” 1 Com. Dig. 358, A. 11; see, also, 1 U. S. Dig. (Supplement,) 517, title, Deceit.' This undoubtedly is the rule. The pleas (notices) in the case at bar, set up a fraudulent representation as to the sale. .This, if anything, is a tort, for which assumpsit will not lie. It does not grow out of it, nor from any act under it. It precedes it, and is not within any of the cases allowing off-sets, that have been decided in this Court.
    As it is said in Hawks v. Lands, 3 Gilm. 232, such construction would involve irremediable injustice and endless confusion; “it would invest justices of the peace with full jurisdiction over questions involving the title to, and covenants concerning real estate,” &c.
    It is true, that the unliquidated damages claimed as a set-off, grew out of transactions between these" parties. But they do not arise out of that part of their transactions for which the note in suit was given; that was for improvements. The damages claimed are for the misrepresentation relative to the claim — the unimproved land — another subject matter of contract entirely. But if it were otherwise, as it is a tort, and the remedy is only by an action for a tort, it ought not to be set off; and especially só, when it is clear that it is a claim not for any act under the contract, but merely inducing to it. .

      It seems to me that the distinction between a case where a party is seeking to recover, as in the case of the vessel, and this case, is quite apparent.

      B. F. Fridley, and M. Brayman, for the defendants in error.
   The Opinion of the Court was delivered by

Treat, C. J.

This was an action of debt, brought by Alexander Sargeant against Sherman and George W. Kellogg. The declaration was on a promissory note for $770, made by the defendants to John Sargeant on the 20th of October, 1837, payable in one year, credited with $220, paid on the 25th of October, 1837, and assigned by the payee to the plaintiff on the 7th of February, 1838.

The defendants pleaded nil debet, and gave notice of set-off ; first, that the note was assigned after it became due, and that the payee was indebted to them in the sum of one thousand dollars, for money had and received, and for money paid ; and second, that the note was assigned after it became due, and that the payee, at the date thereof, sold the defendants a claim on Government land for the sum of $1500, $730 of which was then paid, and the note given for the payment of the residue ; that to a part of the claim, the part unimproved, of the value of $1000, the payee at the time fraudulently represented that he had a good title and right of possession, except as against the United States; whereas, in fact, he had no title, claim, or right of possession whatever.

On the trial, the plaintiff read in evidence the note and indorsements without objection. The defendants introduced evidence tending to show that the note was assigned after it became due. They then offered in evidence an agreement under seal, between John Sargeant of the first part, and themselves of the second part, bearing date the 20th of October, 1837, and declaring, “that the said party of the first part has this day sold and quitclaimed and set over unto the said party of the second part, all right, title, interest, and claim, which I may have, either in law or equity, to the claim of land hereinafter described and bounded, for and in consideration of the sum of fifteen hundred dollars, payable as follows, to wit: six hundred and fifty dollars in money to me in hand paid, and one gray mare, for which I acknowledge the receipt of eighty dollars, which is received and paid for the unimproved ,part of the claim of land bounded as follows, to wit: On the southwest by Fox River, and by John Pierce’s claim on the south, running west one mile, thence running north about one hundred rods; thence running parallel with Gorton’s claim back to the river to the place of beginning supposed to contain about two hundred acres, be the same more or less : also a timber lot formerly owned by Wm. Wilson, and bounded as follows, to wit: situate on the east side of Fox River, nearly opposite Gorton’s flouring-mill, beginning at a small burr oak tree and running on Wm. Wilson’s old line, supposed to be an east course, to a forked hickory tree adjoining Daniel Pierce’s, thence a south course to a white oak tree marked, and thence running a west course to a white oak stump and a red oak stump on the bank of Fox River, opposite Gorton’s mills, except three acres of said timber running on the bank of said river, both of which claims are situate in"Kane county, and State aforesaid, and the further sum of seven hundred and seventy dollars, which the party of the second part have this day given their note, payable one year from date, for the improvements on the claim aforesaid.”

The plaintiff objected generally to the introduction of the agreement, but the Court overruled the objection, and permitted it to be read in evidence.

The defendants then offered evidence tending to show • that, at the date of the agreement, John Sargeant represented to them that he was the owner of a settler’s claim to the whole of the tract first mentioned in the agreement, and that the representations were falsely and'fraudulently made ; that one Pierce had at the time a settler’s claim to about one hundred acres thereof, worth six or seven hundred dollars ; and that he, at the time of the assignment, stated that he assigned the note, and ante-dated the assignment, for the purpose of avoiding any defence. This evidence was admitted against the objections of the plaintiff.

The plaintiff asked the Court to instruct the jury: “That in order to constitute a valid legal claim of Pierce to cover part of the claim of Sargeant, it must have been plainly marked by artificial marks on all sides thereof, so that it could be designated.” The Court refused the instruction, and in lieu thereof gave the following : “That a natural boundary, as a river, or other natural object, which, in the opinion of the jury, would sufficiently designate the said tract from the adjacent land, would be sufficient.” The jury found for the defendants.

The several decisions of the Court in admitting evidence, and in giving and refusing instructions, are assigned for error.

The bill of exceptions does not purport to contain all of the evidence introduced on the trial, but enough of the case is reported to show clearly that the jury was authorized to find that the note was assigned after it became due, and that the payee, at the time of the assignment, was indebted to the makers for money had and received, on a consideration that had failed in an amount equal to the balance then due on the note.

The possessory claims of settlers on the public lands have been recognized as valid, and the proper subject matter of sale and transfer, by various statutes of this State, and the repeated decisions of this Court. Acts of 1831, p. 82; Acts of 1836-7, p. 154; Acts of 1838-9, p. 124; Rev. Stat. ch. 61; Turney v. Saunders, 4 Scam. 527; French v. Carr, 2 Gilm. 664; Switzer v. Skiles, 3 do. 529. It is but fair to conclude from the evidence that the defendants, in parting with their money, relied on the representations of Sargeant, and believed they were acquiring a valid claim to the land, such a claim as the laws recognized, and the. Courts would enforce against all but the United States and its grantee. If the representations were untrue, and they in fact acquired no right by the purchase, an action accrued to them to recover back the amount advanced, as so much money paid on a consideration that had failed. The chief question is, whether this demand could be set-off in the action on the note. Where a note is assigned after maturity, the maker is permitted to interpose the same defence against the assignee, which he might make in an action brought in the name of the payee. Rev. Stat. ch. 73, § 8. Under our statute, unliquidated damages arising out of contracts, express or implied, may be set off in actions ex contractu. Edwards v. Todd, 1 Scam. 462; Nichols v. Ruckels, 3 do. 298; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15. This, however, cannot be done, where the claim for unliquidated damages is totally disconnected with the plaintiff’s cause of action. Hawks v. Lands, 3 Gilm. 227. The demand here interposed by way of set-off, arose out of contract, a contract implied in law to refund the amount advanced by the defendants, in the event they did not obtain that for which they parted with the money. It is true, they might have sued the seller in case for deceit in thé sale ; but they had the right to waive the tort, and sue in debt, or assumpsit for so much money had and received by him to their use, which in equity and good conscience he ought not to retain. Nor is the demand, as in the case of Hawks v. Lands, of a matter wholly disconnected with the plaintiff’s cause of action. It had its origin in the same transaction. The payment of the money and the giving of the note were in part execution of the same contract, the whole relating to the land and the improvements thereon. In the opinion of the Court, this demand was the proper subject matter of set-off to the extent of the amount due on the note. Of course, the defendants could not in this action recover any balance due them from the payee. They could only prevent the assignee who received the note subject to all of the defences existing against it in the hands of the payee, from recovering a judgment, when, in point of fact, the payee was indebted to them.

The agreement was properly admitted in evidence. It was a part of the transaction out of which the note and set-off arose. The general objection to its introduction must be understood as only raising the question of the relevancy of the agreement as evidence. If objected to because the preliminary proof of its execution was not made, that special obj ection should have been taken. Where various objections may be made to evidence, some of which may be removed by other proof, the party making the objection ought to point out specifically those he insists on, and thereby put the adverse party on his guard, and afford him an opportunity to obviate them. He ought not to be permitted, after interposing a general objection, to insist on particular objections in this Court, which, if even suggested in the Court below, might have been instantly removed. A due regard to the character of the Courts and the rights of suitors will not for a moment tolerate such a practice.

To constitute a valid claim to nnsurveyed public lands, the claim must “be so plainly marked and designated, as to be distinguished from adjacent lands.” Rev. Stat. Ch. 61, § 4. The object of this requisition is to notify the public what lands are located, so that all conflicting claims among settlers may be avoided. The claim is to be so designated by the owner as that its precise locality and extent may be ascertained. When this can be readily done, the whole design of the provision is accomplished. Natural objects may be us'ed where they fully answer the purpose. A claim, so marked on three sides as to point the inquirer directly to a river or other natural object as the boundary on the other side, might be as easily ascertained and defined, as a claim in the open prairie entirely surrounded by a furrow, or a claim in the timber indicated by marked trees the entire extent of the line. The instruction thus asked for, goes the length of invalidating every claim not artificially marked on all sides, whether such marks are necessary to distinguish it from the adjacent lands or not. The instruction given by the Court in its stead, we think, asserts the more reasonable rule.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


author: Trumbull, J.

text:
    Aaron V. Burnell et al., plaintiffs in error, v. Daniel M. Robertson, defendant in error.

      Error to Marshall.
    Where two sales of personal property have been made, both equally valid, his is the better right who first obtains possession of the property.
    An attaching creditor stands in the light of a purchaser, and as such is to J>e protected. ,
    Where personal property was sold at private sale, the property being at a distance from the place of sale, and was subsequently attached by a creditor of the vendor, and before it was taken into possession by the purchaser, it was held to be subject to the attachment.
    Replevin,, in the Marshall Circuit Court, brought by the plaintiffs in error against the defendant in error, and heard before the Hon. John D. Catón and a jury at the March term, 1848, when a verdict and judgment were rendered for the defendant.
    The particular instruction to the jury excepted to, is recited in the Opinion of the Court.

      E. JV'. Powell, for the plaintiff in error, filed the following argument in writing:
    The only question to which I shall call the attention of the Court, is the instruction given by the Court.
    The proof, as appears by the bill of exceptions, shows that O. Hinton & Co., the former owners of the property in question, on the 10th of February, 1847, made an absolute bill of sale of all the property owned by the company on the different lines of mail routes in the States of Illinois, Iowa, , and Wisconsin; that this sale was made in St. Louis, Missouri; that the vendees, by the terms of sale, were authorized to take possession of all the property sold ; that immediately after the execution of the said instrument, the plaintiffs by their agents, started on the line, taking possession of the property as they went along; that they arrived at Peoria on the 13th of February, in the night, and immediately proceeded on the line of the route to Lacón, where they found the property attached.
    The question of law involved in this case is, whether there was such a transfer of the property in this case as would defeat an attaching creditor levying before it was reduced into the actual possession of the vendee.
    It is a general rule, that in a sale of personal property, there must be a delivery as to the subsequent purchasers, or attaching creditors. But it is also well settled, that where goods are sold, and from their condition no actual delivery can be had, the sale is valid if the vendee take proper measures to obtain the possession of the property sold without unnecessary delay. Ricker v. Cross, 5 New Hamp. 570; Whipple v. Thayer, 16 Pick. 25; Truxworth v. Moore, 9 do. 347; Jewett v. Warren, 12 Mass. 300; Rice v. Austin, 17 do. 197; Badlam v. Tucker, 1 Pick. 389; Damon v. Osborn, ib. 476; Chaplin v. Rogers, 1 East, 192.
    . The cases of Rice v. Austin, 17 Mass. 197, and of Chaplin v. Rogers, 1 East, 192, are directly in point. The Court in the former case said : “ It is not necessary to effect the transfer of bulky articles that there shall be a manual delivery of them. The delivery of things which may be considered as the proper indicia of the property is sufficient. And in the case at bar, the fact of possession may be inferred from the plaintiff’s undertaking to deal with the propty as his own, by the indorsement upon the bill of lading. ”
    The same principle is decided in the latter case, which was assumpsit for a stack of hay. The plaintiff was put to the proof of the delivery of it, which he maintained by showing that the defendant had sold a part of the hay to one who had taken it away.
    The case in Massachusetts was an action of trespass against a sheriff for taking property on an attachment issued against the vendor, and in this respect is precisely like the present case.
    The proof, then, is clear that at the time the property was sold, it was impossible to take actual manual possession, and that the plaintiffs used all reasonable diligence to take actual possession. This was sufficient to pass the title in them.
    In the case in New Hampshire, which was an action of trover for a chaise and harness, attached by a sheriff, it appeared that A. assigned to B., among other things, a chaise and harness, which at the time were at a distance, in the possession of C. Before B. could obtain possassion, and while the chaise and harness were in the possession of C., D., a sheriff, by virtue of a process against A., attached the same. It was held that the assignee was entitled to hold the same against the sheriff. The Court there say : “An actual delivery by the vendor to the vendee is not in all cases necessary. It is enough if the delivery be such as the situation of the property admits. ” It is added, further, that “ when the chattels sold are so situated that there can be no delivery at the time of the sale, the case forms an exception to the general rule, and it is sufficient, if the vendee, without any gross laches, take possession, and assert his title in a reasonable time after he has an opportunity to take possession. ”

      H. 0. Merriman also filed a written argument in behalf of the plaintiffs in error.

      Q. Peters, for the defendant in error.
    It is conceded that O. Hinton & Co. were the owners of the property in controversy till February 10, 1847. It is also conceded by the defendant, that the bill of sale of that date, was sufficient to pass the property as between vendor and vendee. But, as between the vendors and their creditors, we insist there was no sufficient delivery of the property.
    It is admitted in the argument for the plaintiffs, that there was no actual delivery by them to their vendees. Nor is it contended, that there was any delivery of one article of the property sold, in the name and in behalf of the whole; but there was, at most, an authority given by the bill of sale to the vendors to take possession; and the case shows that all the possession taken by the plaintiffs of the property was taken, not by virtue of a symbolical delivery, but by virtue of the authority contained in the bill of sale to take possession. This, it is admitted, is sufficient so far as the plaintiffs actually got possession before the seizure upon the attachment. Here it is not pretended there was any symbolical act as a substitute for a delivery of the whole. Even the bill of sale was not delivered as a symbol, but merely as a bill of sale, with an authority to take possession.
    This, we insist, was not a sufficient delivery to defeat the attachment. Aside, then, from any question as to the bona jides of the transaction between the parties to the bill of sale, we insist, that the rights of the attaching creditors vested by their attachment. A leading case on this subject is that of Lanfear v. Sumner, 17 Mass. 110.
    In Shumway v. Butler, 7 Pick. 56, where a bill of sale of property was made of property two miles distant, and an attachment levied after the delivery of the bill of sale, arid before possession taken of the property, it was held that the attachment was good. See, also, Lamb v. Durant, 12 Mass. 57.
    In Carter v. Willard, 19 Pick. 1, where there was a bill of sale without a delivery of all the property, it was held that the part attached before a delivery of that part, was good as against the vendee. So in Williams v. Moore, 5 New Hamp. 235, it was held that a delivery of part of the property in one place, would not operate as a delivery of another part in another place. See, also, Gardner v. Howland, 2 Pick. 603; Shurtleff v. Willard, 19 do. 202. The case at bar presents a case of a race between creditors. The law favors the vigilant; “leges vigilanlibus, non dormientibus subveniunt.”
    No wrong is done to other creditors. It is immaterial where a debtor’s property goes, so that it is applied in payment of his debts. If none of it is secreted or misapplied, the law is satisfied. All bona fide creditors have equal equities; each has a right to grasp his share, either by purchase or legal process. In such cases of a race between creditors, “the race is to the swift.” Cushing v. Hurd, 4 Pick. 254; Worden v. Adams, 15 Mass. 223.
    As to the knowledge of these attaching creditors of the sale of O. Hinton & Co. to the plaintiffs, the most that can be said is, that the evidence was doubtful and uncertain, and proper for the jury to consider, and they having passed upon it, the Court will not interpose to disturb the verdict.
    We might well question the bona Jides of this sale to the plaintiffs, resulting from an inspection of the bill of sale itself. A conveyance of such a large amount of property without valuation, purporting to be in payment of a large amount of debts and liabilities, which debts and liabilities are -specifically stated, and yet all, or nearlj' all of which are stated in round numbers, by hundreds and by thousands, cutting off all other creditors, reserving to them no surplus, and requiring no obligation from them to pay and discharge the debts for which they were sureties, are circumstances which might well excite suspicion; and show, at least, that the Court ought not to interfere, unless peremptory and arbitrary rules of law require it.
    But the authorities cited on the other side to show that the property was so far delivered as to avoid the attachment, fail entirely, with oné exception, of sustaining the point for which they are cited.
    They are all clearly distinguishable, unless it be that of Ricker v. Cross, 5 New Hamp. 570. The Court here overrule the case of Lanfear v. Sumner, but entirely disregard the distinction of goods and vessels at sea. Yet that distinction is well maintained by the authorities, and there is strong reason for the rule. Without this distinction, the commerce of the country would be embarrassed.
    Had an innocent purchaser bought this property of an agent of O. Hinton & Co. without knowledge of the contents and execution of the bill of sale, and before its delivery, can it be doubted but such purchaser would have holden it?
    This is really a contest between two sets of creditors. The officer is merely an instrument by which one set of those creditors is to enforce their rights. This doctrine has been fully recognized by this Court. The whole case, therefore, must depend upon the fact whether there was a sufficient delivery of the property, taking into consideration the acts of the parties, and the terms of the bill of sale.
   The Opinion of the Court was delivered by

Trumbull, J.

This was an action of replevin, in which the question involved was the title to the property replevied, consisting of a number of stage horses, their harness, &c. O. Hinton & Co., mail contractors, were the former owners of the property, and on the 10th day of February, 1847, at St. Louis, conveyed it and a large quantity of other property upon different stage routes in Illinois, Iowa and Wisconsin to the plaintiffs as creditors, who, immediately after the execution of the bill of sale, proceeded as fast as practicable to take possession of the property conveyed; but before they had taken the possession of the property in question, which was upon the stage route between Peoria and Ottawa, it was seized in the county of Marshall by the defendant, on the 14th of February, 1847, as an officer, under various writs of attachment sued out in said county of Marshall against O. Hinton & Co.

Upon the trial in the Circuit Court on an issue of property in the plaintiffs, the Court instructed the jury as follows, to wit: “ If either of the attachments were levied before the property was taken into actual possession of the plaintiffs in this suit, or their agents, the property was liable to such attachment, unless the attaching creditor knew of the transfer of the property to the plaintiffs, in which casedt was not so liable, provided the transfer of the property is proven by the bills of sale. ” The plaintiffs excepted to so much of this instruction as related to the delivery of the possession of the property attached, and the-necessity of notice to all the attaching creditors. The jury found a verdict for the defendant, whereupon the plaintiffs moved for a new trial, which was denied, and an exception taken.

The refusal to grant a new trial is assigned for error, and it is insisted that the fair inference from the evidence is, that the attaching creditors had notice of the transfer of the property to the plaintiffs at the time of the levy of said attachment. If the testimony shows that said creditors had notice, the verdict was erroneous, but it is clear that notice to at least one of the attaching creditors was not positively shown, and the jury were justified by the evidence in finding, as they did, that he had no notice, and the Court did not consequently err in refusing to set aside the verdict upon that ground. Whether those creditors, when attachments were not levied until after they had notice of the transfer of .the property, can gain any advantage by the previous levy of an attachment upon the same property by a creditor who had no notice, is a question not now before us. The officer is protected if he had in his hands a single writ that would justify his taking and detaining the property, although he may, at the same time, have been in the possession of an hundred other writs that would have afforded him no justification for the act.

The main question in the case, however, is, whether an actual delivery of the property was necessary to vest the title in the plaintiffs, so as to protect it against the other creditors of O. Hinton & Co. The contest is really between different creditors of that firm, the plaintiffs claiming the property by virtue of the sale, and the attaching creditors by virtue of the legal proceedings they had instituted, under which the officer in their behalf got possession of the property before it was delivered to the plaintiffs.

The general rule that in the sale of personal chattels there must be a delivery of possession as to subsequent bona fide purchasers or attaching creditors is admitted, but then it is insisted that such a delivery only is necessary as from the nature of the case can be made, and that inasmuch as the property conveyed in this case, was scattered over a large extent of country, and the plaintiffs were proceeding with all reasonable dispatch to get possession, that therefore it forms an exception to the general rule and the sale is valid. To sustain this view of the case, we have been referred to numerous cases where a symbolical or constructive delivery has been regarded as equivalent in its legal -effects to an; actual delivery. Such are the cases where the key of the warehouse containing the goods sold was delivered to the vendee, or where the documentary evidence of the title has been delivered, as in the case of a ship or goods at sea, or where the weight and magnitude of the article has rendered any other than a constructive delivery impossible, as where the possession of a column of granite or a raft of logs was held to be taken by the eyes and the declared intention. But none of these cases are like the one at bar. Here there was no .documentary evidence of title to the articles sold, to be transferred, nor was the property at sea one of such a character as to render an actual delivery 1 impracticable.

The only obstacle to a delivery in this case was the absence of the property to be delivered. There was no evidence of a delivery of any portion of the property conveyed at the time of the sale, and hence it cannot be insisted that a part was at that time delivered in the name of the whole.

The bill of sale authorizes the plaintiffs to proceed along the various mail routes and take possession of the property sold, in whose soever hands it might be found. It is manifest from this clause in the bill of sale, that the parties themselves considered some other act necessary than the execution of the writing to vest the property absolutely in the plaintiffs. Suppose an agent of O. Hinton & Co. at Lacón, who had possession of the property attached and authority to dispose of it, had made sale of the same to a bona fule purchaser on the day after the bill of sale was executed to plaintiffs at St. Louis. Could it be insisted that the purchaser acquired only a title subject to be taken away by a previous purchaser from the principal in another part of the country ? We think that such is not the law, but that in case of two sales of personal property, both equally valid, his is the better right who first gets possession of the property, and the attaching creditor stands in the light of a purchaser and is to be protected as such. Martin v. Dryden, 1 Gilm. 188.

The only case to which we have been referred that at all conflicts with the foregoing views is that of Ricker v. Crow, 5 N. H. 570. In that case, one Whitehouse being indebted to the plaintiffs, transferred to them for their benefit as creditors a chaise and harness and various other articles of personal property. Previous to the transfer, the chaise and harness had been let to hire and was then at a distance, but the rest of the property was delivered in the name of the whole. Before the plaintiffs obtained actual possession of the chaise and harness, and while it was in the hands of the bailee, it was attached at the suit of various creditors of Whitehouse, and the Court held that the chaise and harness were not liable to the attachment. There is a distinction, however, between the case of Ricker and the one at bar, in this, that in the former, a part of the property and all that was accessible was actually delivered at the time of the sele, in the name of the whole; but the case itself is of doubtful authority, and is admitted by the C ourt to be in conflict with some other cases.

The cases of Rice v. Austin, 17 Mass. 197, and of Chaplin v. Rogers, 1 East, 192, have been much relied upon, but they are not like this. In the first of those cases, the documentary evidence of title (the bill of lading) was in the possession of the plaintiff, and he had undertaken to deal with the property as his own, by the indorsement of the bill of lading before the levy of the attachment, and besides, the transfer of a ship or goods at sea is admitted to form an exception to the rule requiring an actual delivery of personal property to vest the title in the vendee ; and in the case in East, the vendee had exercised acts of ownership over the property, a stack of hay, by selling a part of it which had been taken away. Had the plaintiffs in the case nqw before . us been able so far to get possession of the property as to have exercised acts of ownership over it before the levy of the attachment, their title would have been undoubted ; or had notice been given to the driver or agent who had the property in possession, and he had agreed to hold the same for plaintiffs, the delivery would have been sufficient. But it would be going too far to hold that the title to personal property situated at a distance from the place where the sale is made, passes absolutely to the vendee without a delivery so as to defeat the title of a subsequent bona fide purchaser who first gets possession of the property. Such a rule, it seems to us, would operate most injuriously upon the trade and commerce of the country, as a person could never he safe in the purchase of personal property if his title was liable to be defeated by a prior sale of his vendor, made in some remote part of the country. If either purchaser is to suffer in such a case, it ought to be the one who purchased the property, knowing it to be at a distance and that possession could not be obtained at once, rather than the one who sees and takes possession of the property at the time of the sale. The former knows the risk which he runs of not being able to get possession of the property before it may be sold and delivered to another, while the latter can -never know whether the property may not before have been traded to some one who has been unable at the time to receive it. Possession of personal property has always been regarded as evidence of ownership, and public policy requires, that while personal chattels remain in the possession of the former owner, they should as to third persons be regarded as his.

A reference to a few authorities analogous in principle to the case before us, will be sufficient to show that a sale of personal property without delivery is insufficient to vest the title as against any one but the vendor. In the case of Whitney v. Lynde, 16 Verm. 579, it was held that where personal property is sold, which is at the time in the possession of a third person, it will be subject to attachment at the suit of the creditors of the vendor, unless the person having possession be notified of the sale and agree to hold the property for the vendee.

In the case of Cobb v. Haskell, 14 Maine, 303, where a bill of sale was made of a quantity of boards to secure a debt due, and the vendor pointing toward the boards which lay in several piles in a lumberyard in sight, said to the vendee, there are your boards, take care of them and make the most of them 5 and the vendee suffered them to lie in the same place for two months without any further act on his part, when they were attached as the property o"f the vendor, it was held that there Was no sufficient delivery as against the attaching creditor.

The case of Lanfear v. Sumner, 17 Mass. 110, is directly in point. In that case, one Wain who was the owner of a quantity of teas which had been shipped at Canton for Boston, being at Philadelphia, sold said teas to Lanfear, not knowing at the time whether they had arrived at Boston or not, arid-having no bill of lading or documentary evidence of title, he gave Lanfear a written transfer of the teas, which the latter transmitted by due course of mail to his agent at Boston, who, within a.half hour after its receipt, made a demand of the teas which had arrived at Boston a few days previous and been seized by the defendant, Sumner, as an officer under an attachment at the suit of the creditors of said Wain. The attachment had been levied before the receipt of the transfer at Boston, but not till after its execution at Philadelphia, and the Court held the property subject to the attachment. Had the teas been consigned to Wain, and5 he having possession of the bill of lading had indorsed it to Lanfear, the case would have come within the exception in favor or the sale of goods at sea or in a distant port, the-title to which becomes perfect by the transfer of the documentary evidence of title, without an actual delivery. See, also, Carter v. Willard, 19 Pick. 1, and Shumway v. Ritter, 7 do. 56, which are analogous in principle to the one at bar.

There being then no error in the instructions of the- Circuit Court, the judgment is affirmed with costs.

Judgment affirmed.


text:
    Joseph Smith, appellant, v. James E. Killeck et ux., appellees.

      Appeal from Cook Co. Court.

    In an action, of forcible detainer, there is no precise form for a complaint. It is sufficient, if the complaint show the relation of landlord and tenant to have existed, that the time for which the premises were let has expired, and that the tenant persists in holding the premises after demand made in writing for for the possession thereof.
    In an action of forcible detainer, the jury simply found the defendant “guilty Held, that the verdict was sufficient, though it would have been more formal to have been “in manner and form as alleged in the complaint.”
    Forcible Detainer, brought by the appellees against the appellant, before a justice of the peace in Cook county, when a verdict was rendered for the complainants below. The defendant appealed to the Cook County Court, and the cause was heard before the Hon. Hugh T- Dickey and a jury, at the October term, 1847, when a verdict was again rendered for the complainants.
    The substance of the complaint will be found in the Opinion of the Court.
    The cause was submitted in this Court upon the written arguments of Morris &? Brown, for the appellant, and of JV\ B. Judd, for the appellees.
   The Opinion of the Court was delivered by

Trumbull, J.

This was an action of forcible detainer, commenced by the appellees against the appellant.

The complaint alleges, “that on or about the 26th day of March, 1844, Joseph Smith entered into the following premises, viz: Lots number thirty three and thirty four, of Wabausia addition to Chicago, under an agreement to purchase the same; that failing to comply with said agreement, it was then further agreed, that he should retain possession of said premises, until the rent amounted to enough to pay for his improvements; that said time had long since expired, and the said Joseph Smith wilfully and without force, after the expiration of said term, holds over and continues in possession of said premises, without the permission of the complainants, notwithstanding demand has been made in writing by the complainants upon, the said Joseph Smith, to quit and deliver up possession to them; and complainants further say that the title to said premises is in the said Sarah Ann Killeck, wife of said James Killeck.”' The complaint was made on the 9th of April, 1847, and upon the trial before the justice of the peace, the defendant was found guilty, and a wri'i of restitution awarded.

Smith appealed to the Cook County Court, when a motion was made to dismiss the suit for wank of sufficient complaint. The motion was overruled,, and upon trial had, the jury found the defendant guilty,, whereupon he entered a motions for a new trial, which was overruled, and a writ of. restitution awarded. During the progress of the trial, the plaintiffs offered in evidence deeds of’conveyance for the premises in question to Mrs. Killeck, and proved substantially the allegations in the complaint,, as to the sale to Smith, and his subsequent occupation of the premises as the lessee ©f th© plaintiffs long enough to pay for: the improvements he had made-, also the giving of notice in writing and demand fop-possession, of the premises before suit brought. The defendant showed that before suit brought he had leased"the premises to two different persons, and to one of them, by th© assent of plaintiffs, for a term not expired at the time of the commencement of this suit; but the testimony further showed" that the leases made by Smith had both been canceled and" surrendered up before the commencement of this suit, and it is therefore unnecessary to notice them particularly.

The errors- assigned are,

1. The overruling the motion to dismiss for want of a sufficient complaint;

2. The admission in evidence of the deeds to Mrs. Killeck;

3. The refusal to grant a new trial; and

4. Insufficiency of the verdict to warrant a judgment of restitution.

The complaint is certainly indefinite as to the time when the contract of sale was rescinded, and the defendant began to occupy the premises as the lessee of the plaintiffs; also, as to the value of the improvements made by defendant, and of the rent of the premises; but there is no precise form for a complaint of this character, nor ought unreasonable strictness to be required. It is enough if the complaint show the relation of landlord and tenant to have existed; that the time for which the premises were let has expired, and that the tenant persists in holding the premises after demand made in writing for the possession thereof. This complaint contains all these allegations, though somewhat vaguely set forth, and in accordance with the doctrine established by this Court in the case of Ballance v. Frisby, 3 Gilm. 291, we are disposed to consider the complaint sufficient. See, also, Barton v. Osborn, 6 Blackf. 145.

The title deeds to Mrs. Killeck, were doubtless offered in evidence to show the reason for joining her as a party to the complaint, and with this view they were properly admissible. Whether the deeds offered were sufficient to establish her title, it is unnecessary to determine. There is enough in the case to show that Killeck took possession of the premises under the sale from Scammon to his wife, and dealt with the property as his wife’s in his subsequent transactions with Smith, and she was not, therefore, improperly made a party to the complaint.

The reasons assigned for a new trial, are very similar to those urged for dismissing the suit. If the complaint was sufficient the verdict was right, as the only witness who was called to testify as to the sale to Smith, his subsequent agreement to occupy the premises till paid for his improvements, and that he had done so, fully proved those facts.

As to the sufficiency of the verdict, there can be no question. The jury found the defendant guilty, and though it might have been more formal to have added “in manner and form as alleged in the complaint,” still the verdict as rendered was sufficient, and has the same meaning as if rendered in a more formal manner.

The judgment of the County Court is affirmed with costs.

Judgment affirmed.


author: Caton, J.

text:
    Elizabeth C. Duncan et al., plaintiffs in error, v. George W. Finch et al., defendants in error.

      Error to Pike.

    A bill in Chancery for an injunction, &c., was filed and the writ issued in vacation. It did not appear from the record that the summons was ever served or returned into Court. One of the defendants, however, appeared, and filed his answer, to which there was no replication. A bond for costs was filed and the cause continued to the next term, but no steps were taken to bring the other defendant into Court. At the second term, the case was called in its order, the defendant again appearing, and no one appearing for the complainant, the bill was dismissed and the injunction dissolved for want of prosecution, but without prejudice: Held, that the Court proceeded strictly in conformity with its duty in dismissing the bill and dissolving the injunction.
    Bill in Chancery for an injunction, &c., in the Pike Circuit Court, brought by the plaintiffs in error against the defendants in error. The cause came on to be heard at the August term, 1847, the Hon. Norman H. Purple presiding, and the complainants npt appearing, the bill was dismissed and the injunction dissolved.

      W. Thomas, for the plaintiffs in error.

      M. McConnell, for the defendant Finch.
   The Opinion of the Court was delivered by

Caton, J.

This bill was filed by the administrators with the will annexed, and the infant heirs of Joseph Duncan, deceased, against the defendants upon which an injunction was issued in vacation. The summons was returnable to the March term, 1847, but which it does not appear was ever served or returned. At that time one of the defendants, Finch, appeared and filed his answer to which no replication was ever filed. At that term, the next friend of the infant complainants filed a bond for costs for them, and the cause was continued to the next term, no steps having been taken by the complainants to bring the other defendants into Court. At the August term, 1847, the suit was called in its order, the defendant appeared, but no one appearing for the complainants, the suit was dismissed for want of prosecution, but without prejudice. The complainants bring the record here, and complain that there is error in this decree.

We think the Circuit Court proceeded strictly in con* formity to its duty in dismissing the bill and dissolving the injunction. The complainants’ solicitor was manifestly guilty of negligence in not preparing the suit for a hearing. He should have taken some; measures to get a return of the summons, and if it had not been served on the other defendant, to issue an alias, and to have done all in his power to to have brought the cause to a hearing, that the defendant, who had appeared, need not continue under the injunction without a hearing any longer than was absolutely necessary. Instead of that, the complainants having obtained an injunc* tion, gave themselves no further concern about the suit, but left it to its fate. The excuse why no appearance was made at the August term is, that the suit was not ready for a hearing, and consequently there was no necessity for the at* •tendance of counsel, as the case could not have been argued. Even if counsel had attended at' that time, it might have been the duty of the Court to have dismissed the suit, be* cause no steps had been taken at the former term to bring in the other defendant, and thus advance the suit. It was the duty of the complainants to speed the cause with diligence, and if they would not do that, they must suffer the just penalty of their negligence. Even with the utmost diligence, the procrastination in Chancery cases often becomes oppressive, and affords grounds for a just reproach against our system of Chancery jurisprudence, and it is the duty of Courts, as well as parties, to see that there is no unnecessary delay. In consideration of some of the complainants’ being infants, the Court might possibly have been justified in further delay, had it been satisfied from an inspection of the record, that their interests might have suffered irreparable injury by a dismissal of the bill; but at most it was but matter of discretion with the Court below, which we think was very properly exercised. A new bill may be filed when the complainants get ready to go on with their case."

The decree of the Circuit Court is affirmed with costs.

Decree affirmed,


text:
    Samuel Webster, appellant, v. John Enfield, appellee.

      •Appeal from Warren.

    Where one party is guilty of a failure to perform his part of a special agreement, whether sealed or not, — such a failure as prevents the other party from performing, — the latter may abandon the contract, and sue in assumpsit for what he has done under it, whenever that action might be maintained but for the special agreement'.
    The Court will not attempt to determine a question of fact, where the bill of exceptions does not purport to set forth all the evidence in the case.
    Evidence tending to show what the parties to a contract considered a reasonable time, is proper for the consideration of the jury.
    If evidence tends to prove two things, one of which is proper, and the other improper, it should go to the jury with an explanation from the Court of its legitimate bearing.
    Assumpsit, the Warren Circuit Court, brought by the appellee against'-th% 'appellant, and heard before the Hon. Norman H. Purple ana á jdry, at the November term, 1846, when a verdict -and judgment were rendered in favor of the plaintiff below for $446-50'.
    So much of ihé evidence given on the trial in the Circuit Court and contained in the bill of exceptions as is material to the determination of the case, will be found embodied in the Opinion of this Court.

      E. S. Blackwell, for the appellant.
    1. Assumpsit upon a quantum meruit will not lie, where the parties have made a sealed agreement, under which the labor was done, (the work agreed to be done being in part finished,) though the plaintiff was prevented from fulfilling his undertaking by the defendant; but the action must be brought on the agreement itself. Young v. Preston, 4 Cranch, 239; Wood v. Edwards, 19 Johns. 205; Andrews v. Montgomery, ib. 162; Toussaint v. Martinnant, 2 Term R. 100-5; Codman v. Jenkins, 14 Mass. 95; 4 B. & P. 104; 1 M. & S. 573; 14 Mass. 93, 99; 5 Cowen, 195; Hawkes v. Young, 6 New Hamp. 300.
    2. Where there is a special agreement which has been fully performed, or where defendant has prevented a performance, plaintiff cannot maintain a general assumpsit, if the agreement was to pay in property and not in money. Burlingame v. Burlingame, 7 Cowen, 92; Cochran v. Tatum, 3 Monroe, 404; Spratt v. McKinney, 1 Bibb, 595; Watson v. McNairy, ib. 356; 1 J. J. Marsh. 394; 3 do. 689; Clements v. Eslava, 4 Porter, 502; 5 H. & I. 45; 14 Johns. 326.
    3. The omission-of defendant tofurnish such lumber as was required in framing the timbers for the mill was at most but a breach of the contract, and plaintiff has his remedy by action. It is not every breach of a contract", which will authorize the party not in fault to rescind, and sue on an implied assumpsit for his labor, &c. It is only where the- act of the defendant is such as necessarily to prevent the other party from-performing his part according to the terms of the agreement. Selby v. Hutchinson, 4 Gilm. 33 Com. Law R. 160; 21 do. 250.
    4‘. All antecedent and con ments, conversations, &c., are tract. Lane v. Sharp, 3 Scam 7.

      J. Manning, for'the appelle.
    1. Where there has been aor not, and it is partially performed by one party and he is* prevented from completing the performance of his part.by the default of the other party, he may treat the contract as-rescinded, and recover the value of what he has done in.assumpsit. Butts v. Huntley, 1 Scam. 410; Herrington v. Hubbard, ib. 569; Reed v. Phillips, 4 do. 40; Bannister v. Read, 1 Gilm. 100; 10 Johns. 36; 4 Wend. 290; Selby v. Hutchinson, 4 Gilm. 3281
    2. It is argued that evidence concerning the time when-Webster was to>have his sawmill done was improperly permitted to go to the jury; but this, with the explanation of the Judge accompanying it, was only evidence of what was a reasonable time within which Webster should complete his saw mill. And what is reasonable time may be a question-for the jury to determine up on. the facts-of the case. I Starkieon Ev. 450, et seq. et in notis; Eaton v. Southby, Willes, 135; Bell v. Wardell, do. 202; 1 Starkie on Ev. 451, note (p); ib. 454, note.(u); Hilton v Sheperd, 6 East, 14, note; 2 Eng. Com. Law R. 152; 1 Starkie on Ev. 458-9; Joy v. Sears, 9 Pick. 4.
    3. The bill of exceptions does .not purport to -set out all the evidence given in the case, and, therefore, a new .trial ¡cannot be granted on the ground that the verdict is against .the weight of evidence. Hall v. Rogers, 3 Scam. 5; Rowan v. Dosh, 4 do. 461; Bates v. Bulkley, 2 Gilm. 394; Granger v. Warrington, 3 do. 310; 2 J. J. Marsh. 123.

      O. H. Browning concluded the argument in behalf of the ¡appellant.
   The Opinion of the Court was delivered by

Caton, J.

The law is too well settled in this State to admit of discussion by this Court, that when ene party is guilty of a failure to perform his part of a special-agreement., whether sealed or not, such .a failure as prevents the other party from performing, the latter may abandon the contract, and bring assumpsit for what he has done under it, whenever til at action might be maintained, but for the special agreement. Selby v. Hutchinson, 4 Gilm. 319; Bannister v. Read, 1 do. 100; Reed v. Phillips, 4 Scam. 40; Herrington v. Hubbard, 1 do. 969; Butts v. Huntly, ib. 413. Whether this action .could be sustained depended upon the question of fact, whether the defendant had been guilty of such a violation of the contract, although, judging from the evidence sent up, -we might :be disposed to concur with the jury in their conclusion that the .defendant was guilty -of such violation, we are precluded from an examination.of that question on account of .the incomplete bill of exceptions -found in the record. After setting forth certain testimony it proceeds : “And defendant avers that this bill of exceptions contains all the evidence offered or given on the part of the plaintiff to maintain the issues on his part. The evidence being closed, the plaintiff asked the Co,u.rt to instruct the jury,” &cf. It is impossible for this Court to determine understandingly, whether the facts were correctly found or not, unless we have all the evidence which was acted upon in the Court below. There is no pretence that any is given here except that introduced by the plaintiff, and before we could say that the finding was unsupported by the evidence, we should have to determine, judicially, that nothing could have come from the defendant’s witnesses, which could have supported the finding. Besides, the Judge who tried the cause does not vouch for the truth of the averment, that all of the plaintiff’s evidence is inserted. All that is affirmed by him is, that the defendant avers, that all the evidence for the plaintiff is given. With the repeated and explicit decisions of this Court on this subject it could not have been anticipated, either by the counsel who prepared this bill of exceptions, or by the Judge who signed it, that it would be' understood here as containing all the evidence in the case.

The only remaining question is, whether the Court erred in permitting certain evidence to go to the jury. By the special contract proved, the defendant was to finish a certain saw-mill, then in progress of erection, within a reasonable time, by means of which he was to furnish certain sawed lumber to be used in the erection of the grist-mill. What was that reasonable time was an important inquiry for the jury. As tending to prove this, the plaintiff offered to show by one witness, that about the time the article of agreement was made, a little before or a little after, he, the witness, understood from the parties, that the saw-mill of Webster was to be started about the first of June, 1846 ; and by another witness, who had had a conversation with Webster, that he had told him that the saw-mill was to be started by that time. This evidence the Court permitted to go to the jury, at the same time stating, that it was only proper for the purpose of showing what the parties considered a reasonable time for the completion of the saw-mill. For this purpose we have no doubt the evidence was proper. It certainly was not admissible, to prove by parol, for the purpose of varying the written agreement, a previous or contemporaneous understanding, different from that evidenced by the written contract, and for that purpose, that evidence would have been inadmissible. But there was another purpose for which this evidence was proper. If evidence tends to prove two things, one of which is proper and the other improper, it must go to the jury with an explanation from the Court of its legitimate bearing. From this testimony we learn that it was the expectation of the defendant that the saw-mill would be in operation by the first of June, 1846; and hence we may infer at least, that he thought that a' reasonable time within which to finish it. This, taken only as the expression of aif opinion, was not conclusive upon -him like an express stipulation, but he was still at liberty to show that he was mistaken in that opinion — that untoward circumstances had prevented him from completing it within that time, as that it could not, with reasonable diligence, have been done so soon. This evidence may not have been sufficient, of itself, to have required the jury to find that till the first of June was a reasonable time; but at least it was proper to be considered by them, in connection with the other evidence in the cause, to determine what was a reasonable time within which to complete the mill; and the Court took a very proper precaution to prevent its having an improper influence upon them, not only at the time the evidence was given, but subsequently in his instructions.

As we find no error in the record, the judgment must be affirmed with costs.

Judgment affirmed.


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    James Love, appellant, v. Arthur Fairfield, &c. appellee.

      Appeal from Madison.

    A suit in attachment was brought in the name of Fairfield, for the use of Field and Hall. The bond was executed by Field and sureties,F reciting the form of the action, and containing the following condition: KNow if the said Alexander P. Field and David M. Hall shall prosecute said suit with effect, or in case of failure therein, shall well and truly pay and satisfy the said James Love all such costs in said suit and damages as shall be awarded against the said Field and Hall, their heirs, executors and administrators, in any suit or suits, which may hereafter be brought for wrongfully suing out the attachment, then,” &c.: Held, that the bond was in conformity to the statute.
    A suit was brought upon a judgment in the name of A. for the use of B. and C. to whom it had been assigned. At the trial, the defendant moved for a continuance because no copy of the assignment was filed with the declaration. The motion was overruled: Held, that it was not necessary to file such copy, the suit being upon the record of the judgment and not upon the assignment.
    Attachment, in the Madison Circuit Court, brought by Fairfield, for the use of Alexander P. Field and David N. Hall, against Love.
    The attachment bond was executed by Field and sureties, the condition of which is recited in the Opinion of the Court. A motion to quash the attachment for an alleged insufficiency in the bond was made at the August term, 1848, the Hon. Gustavus P. Koerner presiding, which was overruled. A motion for a continuance was also made, because no copy of an assignment of the judgment sued on was filed with the declaration, which motion was also overruled. The cause was then tried by the Court, and judgment rendered for the plaintiff below.

      J. Gillespie, for the appellant.

      L. Davis ¿r A. G. Edwards, for the appellee.
   The Opinion of the Court was delivered by

Caton, J.

There are but two questions to be examined in this case. The first is, whethér the motion of the defendant below should have been sustained to quash the writ of1 attachment for the insufficiency of the attachment bond, and the other is, whether the motion for a continuance should have been allowed. The objection is, that the condition of the bond is not in conformity to the statute. The condition recites that Field and Hall had sued out an attachment at the suit of Fairfield to their use, and against the estate of Love, &c. “Now if the said Alexander P. Field, and David N. Hall shall prosecute said suit with effect, or in case of failure therein, shall well and truly pay and satisfy the said James Love all such costs in said suit, and damages as shall be awarded against the said Field and Hall, their heirs, executors and administrators, in any suit or suits which may hereafter be brought for wrongfully suing out the attachment, then,” &e. This bond is in all respects a literal transcript from the statute, merely filling up the blanks. Rev. Stat. 64, § 5. But it is insisted for the plaintiff in error, that inasmuch as the preceding section provides that the bond shall be “conditioned for satisfying all costs which may be awarded to such defendant, or to any others interested in said proceedings,” that something more is required.

Had not the Legislature prescribed this form for "the bond, we might have held this insufficient to secure the rights of those “others interested in said proceedings” if any such there could be, as appears to be contemplated in the fourth section. This being a statutory bond, should the question ever arise, It would be construed to have the effect ascribed to it by the Act, as the law enters into and forms a part of it in legal contemplation. It must be an extraordinary case indeed, when the Court shall hold that that bond is insufficient to authorize the issuing of an attachment, which the attachment law itself says shall be sufficient.

The defendant moved to continue the cause, because no copy of the assignment of the judgment from Fairfield to Field and Hall, had been filed with the declaration. This motion was properly overruled. It was not necessary that this should have been filed. The suit was not brought upon the assignment, but upon the record of a judgment. So far from its being the foundation of the suit it was not necessary to prove it at the trial; nor could the suit have been defeated by proving that no such agreement had ever been made; Fairfield was the plaintiff on the record, and the statement in the declaration, that the suit was prosecuted for the use of Field and Hall was not traversable.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.


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    John G. Lane, plaintiff in error, v. The People of the State of Illinois, defendants in error.

      Error to Morgan.

    On the trial of one indicted for larceny, the counsel for the prisoner asked the Court to give the following instruction to the jury: “If the jury believe from from thcevidence, that the prisoner found the trunk in the road, they are bound to find him not guilty, although they may believe that he afterwards broke it open and disposed of its contents to his own use.” The Court refused to give it as asked: Held, that the instruction stated the law correctly, and should have been given.
    If a person find a trunk, or other article of personal property in the highway, and convert the same to his own use, not knowing the owner, he is not guilty of larceny. Aliter} if he knows the owner when he acquires the possession, or have the means of identifying him mstanter, by marks which he understands.
    Where a judgment in a criminal case is reversed at the instance of the accused, he will not, in legal contemplation, have been in jeopardy, but he may again, be indicted and tried for the same offence.
    Indictment for larceny against tlie plaintiff in error, heard in the Morgan Circuit Court, at the October special term, 1848, the Hon. David M. Woodson presiding, when the jury rendered a verdict of guilty.
    So much of the evidence and instructions as is material to the determination of the case is briefly stated in the Opinion of the Court.

      M. McConnell, and J. W- Evans, for the plaintiff in error,
    cited 2 Russell on Crimes, 100 ; Tyler v. The People, Bre. 227; The People v. Cogdell, 1 Hill’s (N. Y.) R. 95; Same v. Anderson, 14 Johns. 294, and cases there cited ; Archbold’s Crim. Pl. 173.

      D. B. Campbell, for the defendant in error.
   The Opinion of the Court was delivered by

Treat, C. J.

The prisoner was indicted for stealing various articles of personal property belonging to William Graves. The evidence showed that Graves was traveling along the public highway inMorgan county, with a trunk containing the articles alleged to be stolen. He missed the trunk on arriving at Jacksonville, and, on a search, found it near the road broken open, and the contents abstracted. A part of the goods were soon after sold in the county by a person, who, on being pursued, abandoned the rest and escaped. The evidence tended strongly to show that the prisoner was along the road on the day Graves passed, and that he was the same person who afterwards sold the goods.

The counsel for the prisoner asked the Court to give this instruction: “If the jury believe from the evidence, that the prisoner found the trunk in the road, they are bound to find him not guilty, although they may believe that he afterwards broke it open and disposed of its contents to his own use.” The Court refused the instruction, and gave in lieu thereof, the following: “If the jury believe from the evidence, that the prisoner found the trunk in the road, they must find him not guilty, unless they believe that at the time he took it from the road, he took it with the intention of stealing its contents.”

-'-The law is thus stated in 2 Russell on Crimes, 100: “There is one case in which it has been holden, that the taking will not amount to a larceny, though it be accompanied with the animus furandi; namely, where the taking is by a finding of the property. Thus, it is laid down in the books, that if one lose his goods, and another find them, though he convert them animo furandi to his own use, yet it is no larceny, for the first taking was lawful. And again, if A. find the purse of B. in the highway, and take it and carry it away, with all the circumstances that usually prove the animus furandi, as denying it, or secreting it, yet it is not felony.” The same doctrine is laid down in 1 Hawkins’ PL- ch. 19, § 2; 3 Bac. Abr. 132; and in Archbold’s Criminal Law, 173. In the case of The People v. Anderson, 14 Johns. 294, a trunk was lost from a stage-coach in the highway, and taken and carried away by the prisoner. The jury found that he first took the trunk with the intent to steal it; but the Court decided that it was not a case of larceny, and refused to sustain the conviction. Jn the case of The People v. Cogdell, 1 Hill, 94, Warren lost his pocket-book, containing a large amount of bank notes, in the highway, which the prisoner found and immediately concealed with the intent to convert the whole to his own use. The Court held that it was a case of trover and conversion, and not of larceny. The Court also asserted the principle, that to render 7the finder of lost property guilty of larceny, he must know who the owner is when he acquires the possession, or have the means of identifying him instanler, by marks then about the property which the finder understands. In Regina v. Mole, 47 Eng. C. L. 416, where the prisoner picked up the purse of the prosecutor in the public road, and converted the purse and contents to his own use, the Court held that he was not liable criminally, but admitted if there had been ■marks on the purse by which the owner could have been known, it would have been otherwise. In the case of Tyler v. The People, Bre. 227, where the prisoner was convicted of stealing a pair of saddle-bags, found in the highway without any marks by which the owner could be ascertained, this Court reversed the conviction on the ground that the original taking could not have been felonious.

These authorities proceed on the principle, that there cannot be a felonious intent in taking a chattel from the highway which has no marks about it to designate the owner, the finder in such case having the right to take and retain the possession against every one but the owner; and the original taking being lawful, the subsequent appropriation of it by the finder to his own use, only renders him guilty of a trover and conversion. Whether there is any good reason for this distinction, we are not" called onto decide. It is enough for us that the law is so settled. It is not our province to make the law, but to declare and enforce it. If the rule is wrong, the Legislature must interpose and change it.

The instruction demanded by the counsel of the prisoner stated the law correctly, and should have been given. If the prisoner came into the possession of the trunk by finding simply, he was not technically guilty of the crime for which he was indicted. If, on the other hand, he took it from the carriage, or from the highway knowing the owner, he was in either case guilty of larceny. The jury should have been permitted to determine under which state of circumstances he acquired the possession, and to acquit or convict him as their conclusions from the facts warranted.

As the judgment will be reversed at the instance of the prisoner, he will not, in legal contemplation, have been in jeopardy, and may again be indicted and put on his trial for the same offence. The People v. Girard, 3 Scam. 362.

The judgment of the Circuit Court is reversed, and the prisoner discharged.

Judgment reversed.


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    Jonathan H. Smith, appellant, v. John J. Brown, apellee.

      Appeal from Brown

    Ths general rule in Equity is, that time is not necessarily deemed of the essence of the contract, unless the parties have expressly so regarded it, or it necessarily results from the nature and circumstances of the contract.
    The parties to a contract may make time of the essence of their agreement, and when this clearly appears to have been their intention, and no peculiar circumstance has intervened to prevent or excuse a strict performance, it must be so. considered and treated in Equity. The right to make such agreements cannot be denied, and it is the duty of the Courts to enforce them as made, and not to make new contracts for the parties. The real intention of the parties must govern, and that is to be ascertained from the contract and surrounding circumstances.
    Bill in Chancery, &c., in the Brown Circuit Court, brought by the appellee against the appellant and others. The material portions of the bill and proceedings are set out in the Opinion of the Court.
    At the April term, 1846, the Hon. Norman H. Purple presiding, a demurrer to the bill was interposed and overruled by the Court. The defendants neglecting to put in an answer, a default was entered, and the bill taken as confessed, &c.

      II. S. 'Blackwell, for the appellant.
    I. The mortgage from Smith to Pauley, by its terms, was not to take effect unless Pauley paid off and extinguished the mortgage from Parker to the Bank on or before the 15th of October, 1843. This provision constitutes a condition precedent, the performance of which was essentially necessary in order to vest the estate described in the mortgage to Pauley. The bill does not aver a performance of that condition, and therefore shows no title in the complainant to the relief sought. 2 Cruise’s Dig. title 13j Condilion, chap. 1, § 6; Bac. Abr. title, Condition, J; 2 Story’s Eq. Jur. § 1306.

      A strict performance by Pauley in point of time was necessary to save a breach of the condition, time in such a case being of the essence of the contract. The great rule in the interpretation of contracts is, to put such construction upon them as will effectuate the intention of the parties, if such intention be consistent with the principles of law. If the time for performance is made a substantial part of the contract, and not a mere formal circumstance, and enters into the essence of the contract, it cannot be dispensed with by a Court of Law or Equity, any more than any other stipulation the parties may have made, but must be strictly observed. In this case, it is evident from the language used by the parties, that time was contemplated by both as a material and substantial part of the contract. Tyler v. Young, 2 Scam. 445; Wells v. Smith, 2 Edwards Ch. R. 78.
    If. Equity cannot relieve from the consequences of a condition precedent unperformed. But upon the breach of a condition subsequent which would work a forfeiture or divest an estate, a Court of Equity, acting upon the principle of compensation, will interfere and prevent the forfeiture or divestment, if compensation in damages would be equitable. This seems to be the true distinction regulating the jurisdiction of Courts of Equity relative to conditions. Wells v. Smith, 2 Edwards’ Ch. R. 78, cited in 1 Barbour and Harr. Dig. 304; 2 Story’s Eq. Jur. §1324.
    III. The bill attempts to avoid the above positions by alleged fraud and mistake in the execution of the mortgage. To which we answer,
    1. The charge of fraud is too general. The circumstances constituting the fraud must be specifically set forth, in the bill. 2 Scam. 420.
    2. The bill does not state with sufficient precision and certainty in what manner the mistake arose. This want of certainty is so great as to make it impossible to grant the relief prayed for.
    3. The decree does not proceed on the ground of mistake, inasmuch as it does not attempt to reform the instrument by rectifying the mistake, making the mortgage conformable to the true intention of the parties and granting relief upon the instrument as reformed.

      J. S. Bailey, for the appellee.
    Time, in this case, is not material, nor was it made so by the agreement of the parties, the intention being the removal of the Bank mortgage. Sugden on Vendors, 516, appendix No. 6.
    As to penal obligations, see Pothier on Obligations, 68.

      Ji. Williams, for the appellant, in conclusion.
    The condition of the mortgage expresses thatPauley should pay the incumbrance held by the Bank upon the property by a specified time. The averments of the bill are defective in not stating when the money paid by Pauley was paid. Pauley was to make a perfect title to the property, but the bill contains no averment that he has done so.
   The Opinion of the Court was delivered by

Treat, C. J.

This was a suit in Chancery brought by Brown against Smith and Pauley.

The bill discloses this state of facts. On the 23d of May, 1843, Pauley sold certain lands to Smith for the consideration of $2,640, of which amount $2,000 was paid, $320 was to be. paid on the 25th of July, 1844, and a like sum in one year thereafter. On the same day, the lands were conveyed by Pauley to Smith, the deeds containing covenants of warranty and against incumbrances. There was, at the time, a subsisting mortgage on the lands, made by one Parker to the State Bank of Illinois. On the 25th of July, 1843, Pauley mortgaged certain town lots to Smith to secure the payment of the mortgage to the Bank by the 14th of October, 1843; and Smith executed a conveyance to Pauley subject to a condition in these words : Provided, always, that these presents are upon this express condition, that if the said Pauley, his heirs, executors, administrators or assigns, shall on or before the 15th day of October, A. D. 1843, pay or cause to be paid to the said State Bank of Illinois, a certain mortgage given by Sidney Parker, A. D. 1836, to the State Bank of Illinois, for the sum of $1200, the said mortgage being upon the said premises aforesaid, which mortgage is recorded in Schuyler county, which mortgage, held by said State Bank, is to be paid by said Pauley, or his heirs, assigns, executors to the said Bank, lawful attorney or attorneys, their heirs, executors, administrators or assigns, the sum of $1200, together with the interest that may accrue thereon at the rate of ten per cent, per annum from the date of said mortgage ; a full satisfaction of the Bank mortgage is to be obtained by the said Paule)*-, which is now alien upon the premises aforesaid, which the said Smith bought of said Pauley; also a good, legal and equitable title is to be completed to the said Smith ; that is to say, if the said Pauley does remove and make out and complete a good, legal and equitable title to the said Smith, that then and from thenceforth this mortgage shall remain in full force in law and equity against the said Smith for the said $600; but if the said mortgage is not removed, and a good, legal and equitable title completed to said Smith, as aforesaid, then this mortgage shall be null and void to all intents and purposes, the law to the contrary notwithstanding; the said $600 is to be paid as follows, to wit: $300 is to be paid in one year from this date, and $300 two years from this date, without interest for the first year, after the first year interest at ten per cent.; provided, the said Pauley does perform the covenant aforesaid, that is, to satisfy, in full, the Bank mortgage of $1200 aforesaid, on the 15th day of October, A. D. 1843, and complete the title to said Smith as aforesaid, then this mortgage, if the said Pauley does perform said covenant, shall remain in full force in law and equity; but if the said Pauley does not perform the covenant aforesaid, in removing the said Bank mortgage of ¡fil2Q0 and interest aforesaid, which is a lien or incumbrance upon the farm said Smith bought of said Pauley, then this mortgage of $600 is to be from thenceforth, these presents and everything herein contained shall cease and be null and void, anything herein contained to the contrary notwithstanding. This mortgage was assigned to Brown by Pauley on the 27th of July, 1843.

The bill then alleges in general terms that the only object of this mortgage was to secure Pauley in the payment of the balance of the purchase money, and that the other conditions and covenants in the mortgage were fraudulently inserted by Smith; that Pauley paid off the Bank mortgage except the sum of $222-38, which the complainant tendered to the Bank on the 20th of July, 1845, and was then informed that it had been paid by some other person. The bill charges that Smith paid this balance to the Bank with notice that complainant intended to pay it; and that Smith has acquired a complete legal and equitable title to the land purchased of Pauley. The prayer of the bill is for a foreclosure of the mortgage from Smith to Pauley, and for general relicf.

Smith filed a demurrer to the bill, which the Court overruled. The bill was then taken for confessed for the want of an answer, and a decree of .foreclosure entered. To reverse this decree, Smith prosecutes an appeal.

The allegations of the bill will not authorize a decree amending and reforming the mortgage. No mistake is alleged in the writing of the instrument, nor are any facts or circumstances stated which show that the real understanding of the parties at the time is not correctly expressed. The charge is, that Smith fraudulently inserted provisions in the mortgage variant from the agreement of the parties. If such was the case, why was the mortgage accepted and assigned by Pauley? In what did the fraud consist, and how was it perpetrated ? The mortgage must be considered as containing the real contract of the parties.

The question then arises, is the instrument an operative security for the payment of the balance of the purchase money due from Smith to Pauley. Brown can assert no greater right under it than Pauley. He is bound by all the stipulations appearing on its face.

The general rule in Equity is, that time is not necessarily deemed of the essence of the contract, unless the parties have expressly so regarded it, or it necessarily results from the nature and circumstances of the contract. The parties may make time of the essence of their agreement, and when this clearly appears to have been their intention, and no peculiar circumstance has intervened to prevent or excuse a strict performance, it must be so considered and treated in Equity. The right to. make such agreements cannot be denied, and it is the duty of the Courts to enforce them as made, and not to make new contracts for the parties. The real intention of the parties must govern, and that is to be ascertained from the contract and surrounding circumstances. 1 Sug. on Vend. 444; 2 Story’s Eq. Jur. § 776; Benedict v. Lynch, 1 Johns. Ch. R. 370; Coslake v. Till, 1 Russell, 376; Williams v. Edwards, 2 Simons, 78; Andrews v. Sullivan, 2 Gilm. 327. There is no difficulty in ascertaining the intentions of the parties to this instrument. Its provisions are clear and explicit. It is manifest that the parties intended that in the payment of the Bank debt, time should be of the essence of the contract; and «that in the event of the non-performance of this condition by a specified day, the mortgage should cease to be operative for any purpose, or in other words, the estate created by the mortgage should be defeated. This is the express stipulation of the parties. The conveyance is to operate as a valid security if the Bank mortgage is discharged by a prescribed time; and if not so discharged, the conveyance is declared “null and void to all intents and purposes, the law to the contrary notwithstanding.” The fact, whether the land was to continue to be held in pledge for the payment of the purchase money was made expressly to depend on the prior payment of the Bank debt. If paid within the stipulated time, the mortgage was to become absolute as a security. Pauley did not perform the condition, and thus render the mortgage valid and effectual. No excuse is pretended for omitting the performance. The mortgage, therefore,, cannot be enforced as a subsisting security, and Pauley must resort to his action at Law to recover the purchase money unpaid.

The decree of the Circuit Court is reversed with costs, and the bill dismissed.

Decree reversed.

      Trumbull, J. having been of counsel in this case, took no part in the decision.