author: Per Curiam.

text:
    Wiley B. Green, Appellant, v. Eunice Atchison, Appellee.
    APPEAL FROM PIKE.
    Appeal dismissed if copy of record not filed within three days.
    Reynolds, for appellee,
    on the 13th day of January, 1829, moved the court to dismiss this appeal, for the reason that the appellant has not filed a copy of the record within the time required by law, and the rules of this court, and cited the 12th Rule of Court, and Rev. Laws of 1827, page 319.
   Per Curiam.

This appeal is dismissed, and the appellee must recover her costs.

Appeal dismissed.

       The present statute in relation to filing records in cases of appeal to the supreme court is as follows: " The appellant shall lodge in the office of the clerk of the supreme court, an authenticated copy of the record of the judgment or decree appealed from, by or before the third day of the next succeeding term of said supreme court, provided, that if there be not thirty days between the time of making the appeal and the sitting of the supreme court, then the record shall be lodged as aforesaid, at or before the third day of the next succeeding term of said supreme court, otherwise the said appeal shall be dismissed, unless further time to fill the same shall have been granted by the supreme court upon good cause shown.” Purple’s Statutes, 828, sec. 48. Scate’s Comp., 264. And this is a transcript of the act of 1827.
      In Hagar v. Phillips the appellant filed the record, and moved that the appellee join in error. The appeal was prayed within thirty days of the commencement of the term. The motion was refused. The appellant was not bound to file the record before the next term, and the appellee ought not to be compelled to appear before that time. 13 Ill., 292.
      Under the foregoing act it is held that “ Where thirty days intervene between the date of the order of the court granting the appeal, and the first day of the next term of the supreme court, the record must be filed within the first three days of that term, although the time between the filing of the bond and the next term of the supreme court may be less than thirty days.” Vance v. Schuyler et al., 4 Scam., 286.
      Where an appeal is taken to the supreme court, unless the record is filed within the first three days of the next term, which happens thirty days after the appeal is taken, or an extension of the time for filing the same is obtained within the three days, the appeal will be dismissed. It is not sufficient to file a motion for this purpose within the three days. Frink v. Phelps, 4 Scam., 480.


source: Caselaw Access Project

license: Public Domain

text:
    Adam Smith, Appellant, v. James A. James, Appellee.
    APPEAL FROM MONROE.
    Further time to file record on an affidavit that it was through the negligence of counsel that the record was not filed in time, refused.

      McRoberts, for appellee,
    on the 16th of January, 1829, entered his motion to dismiss this appeal, because the appellant had failed to file a copy of the record within the time prescribed by law and the rules of court, and relied upon the 12th Rule and the 33d Section of the Practice Act, Rev. Laws of 1827, page 319.

      Ford, contra,
    read an affidavit stating that it was not owing to the negligence of the appellant that the record was not filed, but to that of his counsel, and asked further time to file the record.
   Per Curiam.

Let the motion for further time to file the record be overruled, and the motion to dismiss the appeal be sustained, and the cause remanded, so that the appellee may have his execution upon his judgment in the Monroe circuit court, and also that he recover his costs against the appellant.

Appeal dismissed.

       See note to last case.


author: Justice Browne.

text:
    John Tyler, Plaintiff in Error, v. The People, Defendant in Error.
    ERROR TO JEFFERSON.
    Larceny can not be committed of goods and chattels found in the highway, where there are no marks by which the owner can be ascertained; one ingredient of larceny is wanted in such case, to wit: a felonious taking.
   Opinion of the Court by

Justice Browne.

This was an indictment against John Tyler, for a supposed larceny. He was tried and a verdict of guilty found against him in the court below, upon which judgment was rendered; to reverse which, he has brought this writ of error.

The whole of the evidence establishes clearly that the article of property for which he is charged with stealing, was found in the highway, and was a pair of saddle-bags. It was further proven, that there were no marks by which the owner could be ascertained.

The question then is, can an individual commit larceny at all, where the property is found on the highway, and no marks or brands by which the owner could be distinguished.

Larceny is defined by the books to be “ the felonious taking, and carrying away of the personal goods of another.” The original taking then, in this case, can not by any possible construction that can be given to it, be construed to be with a felonious intent.

Gatewood, for plaintiff in error.

Eddy, state’s attorney, for defendant in error.

The court is therefore of opinion that the judgment of the court below be reversed, and the prisoner set at liberty, ,

Judgment reversed.

       A bona fide finder of an article lost, as a trunk containing goods, lost from a stage coach, and found on the highway, is not guilty of larceny by any subsequent act in secreting, or appropriating to his own use the article found. The People v. Anderson, 14 Johns., 294.
      To constitute larceny, the possession of the goods must have been acquired animo furandi in the first instance; an intention afterwards formed, of converting them to the party’s own use, is not felonious. Ib.
      If a man lose goods, and another find them, and not knowing the owner, convert them to his own use, this is no larceny, even although he deny the finding of them or secrete them. Archbold’s Crim. Pl., 119.
      Where the defendant saved some of the prosecutor’s goods from a fire which happened in his house, and took them home to her own lodgings, but the next morning she concealed them and denied having them in her possession, the jury finding that she took them originally from a desire of saving them from the fire, and that she had no evil intention until afterwards, the judges held, it was a mere breach of trust, and not felony. Rex v. Leigh, 2 East. P. C., 694.

       If a person find an article of personal property in the highway, and converts the same to his own use, not knowing the owner, he is not guilty of larceny. It is otherwise if he knows the owner when he acquires the possession, or has the means of identifying him instanter, by marks he understands. Lane v. The People, 5 Gilm., 305.
      If the owner of goods, alleged to have been stolen, voluntarily parts with the possession and title, then neither the taking or conversion is felonious. But if he parts with the possession, expecting that the identical thing will be returned, or that it shall be disposed of on his account, or in a particular way, then the thing may be feloniously converted, and the bailee be guilty of a larceny. Welch v. The People, 17 Ill., 339.
      Where a bill is put into the hands of a person to procure change, and he appropriates it, it is larceny. Farrell v. The People, 16 Ill., 506.


author: Justice Smith.

text:
    Vernon, Blake & Co., Plaintiffs in Error, v. W. L. May, Defendant in Error.
    ERROR TO MADISON.
    A writ of error will not lie upon a refusal to grant a new trial.
   Opinion of the Court by

Justice Smith.

This case comes before the court on a bill of exceptions to the opinion of the court, in refusing to grant a new trial. It will be altogether unnecessary to consider the grounds upon which a new trial was refused in the court below, because this court has decided, in the case of Clemson v. Kruper, ante, page 210, that a refusal to grant a new trial is no ground of error, it being entirely a matter of sound discretion in the court below, to grant or refuse a new trial. The court, in several other cases, decided since the case of Clemson v. Kruper, have adhered to this principle, and no reason can be perceived why the present case should be exempted from the operation of the rule laid down. The judgment of the circuit court must, therefore, be affirmed with costs. ,

Starr, for plaintiffs in error.

Turney, for defendant in error.

Judgment affirmed.

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

         See cases in relation to new trials in note to the case of Clemson v. Kruper, ante, p. 210.

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


author: Justice Lockwood.

text:
    Nathan Cromwell, Plaintiff in Error, v. Enoch C. March, Defendant in Error.
    ERROR TO MORGAN.
    Where parties agree to submit their differences to arbitration, and agree that “ the award is to be entered of record and made a rule of court at the next term, and which award, when entered, is to have the force and effect of a judgment,” it is irregular and erroneous for the circuit court to enter up a judgment on the award.
   Opinion of the Court by

Justice Lockwood.

The facts of this case are, that March and Cromwell, having several matters of difference, agreed to arbitrate the same, and in their agreement is the following clause, to wit: “ Which award is to be entered of record and made a rule of court at the next term of the Morgan county circuit court, and which award when entered, is to have the force and effect of a judgment.” Subsequent to the making of the award, March served notice of his intention to apply for a judgment on the award, and the circuit court of Morgan county gave judgment by default, at the April term, 1829, on the award. A writ of error has been brought to reverse this judgment. Several errors have been assigned, but the court only deem it necessary to decide, whether the circuit court had jurisdiction over the case, so as to give any judgment on the award. By the “ act regulating arbitrations and awards,” passed January 6th, 1827, it is enacted that where persons are desirous to terminate disputes by arbitration, agree that their submission to arbitrate shall be made a rule of the circuit court,” and “ insert such, their agreement, in the submission, or in the condition of the bond or promise; ” which agreement, on producing an affidavit of the due execution thereof, and filing it in court, may be entered of record, and a. rule of court shall thereupon be made that the parties shall submit to and be finally concluded by such arbitration. It is further enacted, “ that where the award shall be for the payment of money only, the same being returned into and accepted by the court, judgment shall be rendered thereon for the party in whose favor the award is made, to recover the sum awarded to be paid to him, together with the costs of arbitration and the costs of court,” <fcc. It is contended that the agreement that the “ award ” shall be made a rule of court, does not bring the case within the statute. The English statute on this subject contains the same phraseology, “ that the consent expressed in the bond or agreement, must make the submission a rule of court,” and under their statute it was decided, if the agreement be to make the award a rule of court, it is not within the act. 2 Sellon’s practice, 244, cites Strange, 1178. Upon the authority of this case, the court are of opinion that the circuit court of Morgan county erred in taking cognizance of the case. The judgment must therefore be reversed with costs; In giving this judgment the court do not express any opinion as to the validity of the award. The arbitration and award will therefore stand, and the rights of the parties under them, in the same manner as if no judgment had been rendered on the award.

Breese and McConnell, for plaintiff in error.

W. Thomas, for defendant in error.

Judgment reversed.

       Rev. Code of 1827, p. 64.

       See note to Chandler v. Gay, ante, p. 88.


text:
    Edward Humphreys, Appellant, v. Collier and Powell, Appellees.
    APPEAL FROM RANDOLPH.
    On a note made in Missouri and assigned there the lex loci of Missouri as to the liability of the assignor, is to govern.
    The deposition of a witness, .stating the contents of a record or written instrument, will be rejected upon the general principle that such things can not be proved by parol, if they are in the power of the party to be produced.
    It is irregular for the court to instruct the jury as to the weight of evidence.
   Opinion of the Court by

Justice Smith.

It does not become important to examine critically more than one of the grounds relied on as error, to arrive at. a correct determination of the present cause. The action is on an assigned note made in Missouri on the third of April, 1822, and payable five months after date. The declaration contains the usual counts on a promissory note, and avers the assignment to have been made on the first day of June, 1825. It also contains a count for goods, wares and merchandize, and the money counts. The defendant plead the general issue. It is conceded that the lex loci of Missouri is to determine the liability of the assignor.

By the laws of the state of Missouri, to show due diligence, it is rendered unnecessary to prosecute the maker of a promissory note to insolvency, “ if it shall appear to the court or jury that the institution of such a suit would be unavailing; ” see Laws of Missouri, vol. 1, p. 143. Under the provisions of this law, the plaintiff in the court below attempted to show that such suit would have been unavailing, because of the insolvency of the maker of the note, after the assignment thereof, and before the institution of the present action. From the bill of exceptions it appears, that for such purpose the deposition of a witness taken in Missouri was offered in evidence, and to a part of the interrogatories and answers of the witness, on his direct examination, the defendant, on the trial, objected to their being read in evidence to the jury. The answers of the witness speak of the maker of the note having, in the year 1823, been discharged under the insolvent laws of the state of Missouri, of the schedule of his property, and the incumbrances' on the same as stated by the insolvent, according to the witness’ recollection, in the schedule.

The court refused to suppress the interrogatories and answers objected to, and permitted them to be read in evidence. The exception on the trial to the admission of this testimony, I think well taken. No part of the rules of evidence is better settled than the one that parol evidence can not be given, of the contents of a written instrument or record in the power of the party to produce, because it is neither the highest nor best of which the case is susceptible. The evidence of insolvency, or of the uselessness of a prosecution against the maker of the note, might no doubt have been proved by facts tending to show such insolvency connected with general reputation as to that point; or it might have been proved by the introduction of the record of his discharge under the insolvent laws of Missouri, and his subsequent poverty and inability to discharge the note in question, but the witness ought not to have been permitted to speak of the contents of a record which must necessarily have involved the correctness of his own recollection.

The application to suppress such portions of the deposition was correctly made, and ought, I think, to have been granted. Under the count for goods, wares and merchandize, the evidence offered, so far from sustaining that count, directly negatives the indebtedness of Humphreys in the character of purchaser. The testimony is clear, that the note was received, at least, in payment for the goods, with the usual recourse against the indorser or assignor, and if any inference is to be drawn from the statement of the witness, that it was given and received at a discount, as he understood from both the parties, of ten per cent., it would seem to authorize not only that presumption, but that it was intended to have been in full, without recourse to the assignor afterwards. The instructions of the judge to the jury as to the weight of evidence, was perhaps unnecessary and irregular, but as he subsequently instructed them that they were the sole judges of the testimony and its character, it does not become necessary to decide on that point. The judgment of the circuit court must be reversed, the case remanded to the court below with instructions to cause a venire de novo to be issued,

Hall, for appellant.

Breese, for appellee.

Judgment reversed.

      l) See note to Bradshaw v. Newman, ante, p. 133.

       The act of February, 1847, provides that “ hereafter, no judge of the circuit court shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing.” Purple’s Statutes, p. 829, sec. 60. Scates’ Comp., 261.
      Under this statute it is held that the court is not prohibited from giving instructions of its own accord, such as are applicable to the case, provided they are given in writing. Brown v. The People, 4 Gilm., 441. Bloomer v. Sherill, 11 Ill., 484. Galena and Chicago Union Railroad v. Jacobs, 20 Ill., 478.
      A judge has no authority on the trial of a cause, to affect or change the law as stated in the written instructions, by any expression not in writing. Ray v. Wooters, 19 Ill., 82.
      An instruction asked for, which has no application to the case proved, is abstract and should not be given. Riley v. Dickens, 19 Ill., 29.

        Instructions not based on evidence should not be given. Chicago, Burlington & Quincey R. R. v. George, 19 Ill., 510. Hosley v. Brooks, et ux., 20 Ill., 115. Coughlin v. The People, 18 Ill., 266.
      Where substantial justice has been done, even if improper instructions have been given, a judgment will not be disturbed. Newkirk v. Cone, 18 Ill., 449. Dishon et al., v. Schorr, 19 Ill., 59. Elam v. Badger, 23 Ill., 498. Howard Ins. Co. v. Cornick, 24 Ill., 455.
      The right of a party to ask instructions must have some limit, and the supreme court will not sanction the abuse of it. Fisher v. Stevens, 16 Ill., 397.
      A judge may, of his own motion, instruct the jury, and it may often be his duty to do so. Stumps v. Kelly, 22 Ill., 140.
      The practice of instructing a jury to find for the defendant, as in case of a non-suit, is not adopted in this state. Ibid.
      It is objectionable that instructions be drawn at great length, and have “ injected ” into them an argument of the case. They should be concise, and briefly present the points of law on which the party relies. Merritt v. Merritt, 20 Ill., 65.
      Instructions should be as few and simple as possible, otherwise they are more likely lo mislead the jury. Springdale Cemetery Association, v. Smith, 24 Ill., 480.
      We have cited above the case of Ray v. Wooters, 19 Ill., 82, but with all due respect to the opinions of the court, we can come to no other conclusion than that the case was improperly decided. It was admitted that the qualifications made by the judge were immaterial. The cases of Newkirk v. Cone, 18 Ill., 449, and Dishon et al. v. Schorr, 19 Ill., 59, expressly assert, that although errors may have been committed in the evidence or instructions, yet if substantial justice has been done, a case will not be reversed. It is said the statute provides that a judge shall give no instructions except in writing. So the statute also provides a judge shall do many other things, the not doing of which will not, unless a party has been prejudiced thereby, be grounds of error. A negro or Indian is called by a plaintiff as a witness. Instead of testifying for the plaintiff, his testimony is entirely for the defendant. The statute says he shall not be a witness; but the defendant can not assign as error that he was allowed to be called as a witness, because he is not injured by it. Suppose in this case the qualifications of the judge, if material, were wholly in favor of Kay, and still the jury found against him. He could not complain, and why? Because it was an error in his own favor, and it has always been held that a party can not except to an error in his own favor. Smith v. Williams, 22 Ill., 357. We can not but think that the point on which this case ought to have turned was overlooked by the court.

         The court may give an opinion to the jury upon the weight of evidence, or may decline so to do; and if the evidence is doubtful, it is most proper to leave it to the jury. Consequa v. Willings et al., 1 Peter’s C. C. R., 225.


text:
    David Ingalls, Appellant, v. George T. Allen, Appellee.
    APPEAL FROM MORGAN.
    To say of the plaintiff in an action of slander, “that he, or somebody, had altered the credit, or indorsement on a note, from a larger to a less sum, and that the note would speak for itself,” is not actionable, as the charge is not positive, but in the disjunctive, and for aught that appears, he may have altered the credit or indorsement on his own note and violated no law in doing it.
   Opinion of the Court by

Justice Browne.

This was an action of slander, in which there are several counts laid in the declaration, one of which charges these words: “He, (meaning the plaintiff,) forged the indorsement of a credit on a promissory note made by said defendant to said plaintiff, by which the same was changed from a greater to a less amount.” The other counts are in substance the same. The defendant below, pleaded not guilty. The jury brought in a verdict in favor of the plaintiff below, for fifty dollars, upon which judgment was entered, and to reverse which, an appeal is brought to this court. The following bill of exceptions shows all the evidence given in the trial below: “That upon the trial, Bice Dunbor, the first witness introduced on the part of the plaintiff, stated that he was present when the plaintiff told the defendant that he, the defendant, had charged him, the plaintiff, with forgery, by having altered the signature of a note or the indorsement, but did not recollect which. The defendant replied, that he did not know that he had said so, but that the note would show for itself, and that he would not take back his words. Abram Vance, a witness introduced by plaintiff, stated, that he met with defendant in the street, and that the defendant told the witness that the plaintiff had altered the signature, or the indorsement, on the note, but could not recollect which. Murry McConnell, also introduced as a witness on the part of the plaintiff, stated, he heard defendant say that he, plaintiff, or somebody, had altered the credit or indorsement on a note, from a larger to a less sum; that the note speaks for itself. Charles F. Morgan, who was likewise introduced as a witness on behalf of the plaintiff, stated, that he was present at the conversation between plaintiff and defendant, as stated by the first witness, Mr. Dunbor, and stated that Mr. Ingalls said the note had been altered, and that it would show for itself.” This was all the evidence. From the whole of the evidence, the party might have altered the indorsement or credit, and still, no criminalty attach to his conduct. The charge is not positive, but is in the disjunctive; he is charged with being guilty of one thing or another. For aught that appears, he may have altered the indorsement, or credit, on his own note, and violated no law in doing it. The judgment of the court below must therefore be reversed.

McRoberts, for appellant.

Me Connell and Thomas, for appellee.

Judgment reversed.

       In McKee v. Ingalls, 4 Scam., 30, the words were, “you are a damned thief.” “If you have got money you stole it.” “I believe you are a damned thief. I believe you will steal.” The cojrvt instructed the jury, “ That the words ‘If you have any property you stole it; JT believe you will steal;’ and other similar conditional expressions, are not such words as will sustain this action; and the jury can not find a verdict against the defendant for using such words.” The supreme court held the instruction to be correct.
      It is not actionable to charge a man with an intent to commit a crime. Id.
      The words, “I have every reason to believe he burnt the barn,” and “I believe he burnt the barn,” are actionable. Logan v. Steele, 1 Bibb, 593.
      To say, “My watch has been stolen in widow Miller’s bar room, and I have reason to believe that Tiny Miller took it, and that her mother concealed it,” is actionable. Miller v. Miller, 8. Johns., 74.
      To say of a person, “It is the general opinion of the people in J’s neighborhood, that he burnt C’s gin house,” is actionable. Waters v. Jones, 3 Port., 442.
      Charging a person with being a mulatto, and “ akin to negroes,” is not actionable. Barret v. Jarvis, 1 Hammond Rep., 83. Otherwise in South Carolina. Eden v. Legare, 1 Bay, 171. Atkinson v. Hartley, 1 M’Cord, 203. King v. Wood, 1 N. & M., 184.
      Words calculated to induce the hearers to suspect that the plaintiff was guilty of the crime alleged, are actionable. Drummond v. Leslie, 5 Blackf., 453.
      Ambiguous words are slanderous, if the hearers understood them to impute a crime. Dorland v. Patterson, 23 Wend., 422.


author: Chief Justice Wilson.

text:
    Ignatius R. Sims, Appellant, v. Joseph Klein, Appellee.
    APPEAL, FROM MORGAN.
    Fraud vitiates every contract, but every false affirmation does not amount to a fraud.

    A plea to an action on a note for the payment of money, alleging that “ it was obtained by fraud and circumvention, in this, that the plaintiff represented himself to be the owner of 100 head of hogs, and 54 head of cattle running in the neighborhood of his farm, and that they were worth $300, being the property for which the note was given, when in truth, plaintiff had not that number, nor were they good and valuable as represented,” is bad, inasmuch as it does not allege that plaintiff used any means to deceive or circumvent defendant, and it was in his power by ordinary precaution to have ascertained the value and number.

    A plea of failure of consideration should allege specially in what the failure consisted, and the extent of it. The statute authorizing pleas to the consideration of a note, enumerates four grounds of defense : 1. Where the bond is entered into without any good or valuable consideration : 2. Where the consideration has wholly failed: 3. Where fraud and circumvention have been used in obtaining it, setting forth the facts which constitute fraud, &c., and 4. Where there has been a partial failure of consideration, setting forth in what it consisted. Precision as to the extent of the failure of the consideration is necessary to enable the court to give judgment for the residue.

       See note (1) to the case of Bryan et al. v. Primm, ante, p. 59.

       Fraud which will vitiate a negotiable instrument in the hands of a bona fide assignee, must be in obtaining the making or execution of the note. A fraud in the consideration will-not be sufficient. Woods v. Hines, 1 Scam., 103. Mulford v. Shepherd, ib., 583. Adams v. Wooldridge, 3 Scam., 256. See note 3, to Mason v. Buckmaster, ante, 27.

       See note to Taylor v. Sprinkle, p. 17. Wood et al v. Goss et al., 21 Ill., 604.

   Opinion of the Court by

Chief Justice Wilson.

This is an appeal from a judgment of the Morgan circuit court. The action was commenced in the court below, by Klein against Sims, upon a note under seal. The defendant filed two pleas, both of which were demurred to, and the demurrers sustained by the court, and judgment was rendered for the plaintiff upon the note, from which judgment Sims appealed to this court, and now assigns for error the decision of the court, in sustaining the demurrers to the pleas. The first plea alleges that the note upon which the action is brought, was obtained by fraud and circumvention, and charges the fraud and circumvention to consist in the plaintiff’s representing himself to be the owner of a hundred head of hogs and fifty-four head of cattle running in the neighborhood of his farm, and that they were worth 300 dollars, being the property for which the note was given, when in truth the plaintiff had not that number of hogs and cattle, nor were they good and valuable as represented.

The court recognize the principle, that fraud vitiates and renders void every contract by which it is obtained, but every false affirmation does not amount to a fraud. A knowledge of the falsehood of the representation must rest with the party making it, and he must use some means to deceive or circumvent. This plea contains no charge of this kind, it only alleges the number and value of the cattle and hogs to be less than was represented by the plaintiff, Klein. As regards their value, that was clearly a matter of opinion, and by an ordinary degree of precaution the defendant might have ascertained the number. To this plea then, the demurrer was properly sustained. The second plea is of a two-fold character; it commences as a plea of part failure of consideration, which goes to only a portion of the action, and concludes as a plea of fraud, which is a defense to the whole action. It contains two distinct grounds of defense, which, if properlypleaded, though in the same plea, could not for its duplicity be taken advantage of, upon general demurrer. But is it not defective in substance ?

The statute under which this plea is filed , enumerates four grounds of defense to an action upon bonds or other writings, for the payment of money, &c.

1. Where the bond is entered into without any good or valuable consideration.

2. Where the consideration has wholly failed.

3. Where fraud and circumvention have been used in obtaining it; and

4. Where there has been a part failure of the consideration.

These are all separate and distinct grounds of defense, and should be so pleaded. If a bond is given without any good or valuable consideration, that fact may be pleaded generally. If fraud is relied upon, the plea must set forth facts which constitute fraud. If a total failure of consideration is relied on, the manner must be shown, and where a partial failure of consideration is relied on, as is the fact in this case, it is necessary to set forth in what the failure consisted. The plea should be as broad as the evidence, and upon the same principle, the extent of the failure of consideration should be specially alleged.

The plea in this case alleges fraud, but does not specify in what; it also alleges a part failure of consideration, and does partially show in what it consisted, but the extent is not specified ; in this respect the plea is substantially defective. Precision as to the extent of the failure of the consideration, is essential, in order to enable the court to render judgment for the residue. The judgment of the court below is affirmed with costs. Judgment affirmed.

Cowles, for appellant.

W. Thomas, for appellee.

       Rev. Laws of 1827, p. 322, sects. 5, 6.

         Cases of failure of consideration, &c. Taylor v. Sprinkle, ante, p. 17. Cornelius v. Vanorsdall, ante, p. 23. Poole v. Vanlandingham, ante, p. 47. Bradshaw v. Newman, ante, p. 133.
      Where the vendee purchases a chattel on sight which the vendor affirms to be worth much more than its real value, no action lies, there being neither fraud nor warranty. Davis v. Meeker, 5 Johns. Rep., 354.
      A mistaken opinion of the value of property if honestly entertained, and stated as opinion merely, unaccompanied by any assertion or statement untrue in fact, can not be considered as a fraudulent misrepresentation. Hepburn et al. v. Dunlop et al., 1 Wheat., 179, 189.


text:
    John Doe, ex dem. Moose and others, Plaintiffs, v. Samuel Hill, Defendant.
    AGREED CASE FROM MONROE.
    A confirmation made by the governor of the North-west Territory, on the 12th of February, 1799, to a person claiming a tract of land in said territory, is, under the resolutions and instructions of congress, of June and August, 1788, valid, and operates as a release, on the part of the United States, of all their right.
    Under this power to confirm, the governor was not limited to any definite number of acres, but could confirm to the extent claimed by the settler.
    A confirmation so made by the governor, can not be'nullified by any act of congress. It is not necessary that it should be proved that the premises claimed lie within the limits prescribed by the resolutions of congress, passed in 1788, because by the resolutions of 28th of August, 1788, the improvements of the settlers were reserved for them, whether they were within or without the reserved limits.
    In order to show the deed of confirmation, it is not necessary that any evidence should be given of them title to the land, because the power of the governor was plenary, and his decision on the claims presented to him is binding on the United States.
    By the deed of cession of 1784, from Virginia to the United States, congress were obliged to confirm the settlers in their possessions and titles.
   Opinion of the Court by

Justice Lockwood.

This is an action of ejectment, commenced in the Monroe circuit court, for the recovery of a tract of land situate in Monroe county. On the trial, a special verdict was found, which contains in substance the following facts: That on the 12tli day of February, 1799, Arthur St. Clair, then governer of the territory north-west of the river Ohio, granted his deed of confirmation or patent to Nicholas Jarrot, to the premises set out in the plaintiff’s declaration, which deed of confirmation is as follows, to wit:

a Territory of the United States, north-west of the Ohio. Arthur St. Clair, governor of the territory of the United

States north-west of the Ohio, to all persons who shall see these presents, greeting:

Know ye, that in pursuance of the acts of congress of the 20th of June, and 28th of August, 1788, and the instructions to the governor of the said territory, of the 20th of August of the same year, the titles and possessions of the French and Canadian inhabitants, and other settlers in the Illinois country, and at St. Vincennes, on the Wabash, the claims to which have been by them presented, have been duly examined into, and Nicholas Jarrot lays claim to a certain tract or parcel of land, lying and being in the county of St. Clair, and bounded in manner following, to wit: (here the governor’s confirmation sets out the boundaries:) to which, for anything appearing to the contrary, he is rightfully entitled, as assignee of Philip Engel. Now, to the end that the said Nicholas Jarrot, his heirs and assigns, may be forever quieted in the same, I do, by virtue of the acts and instructions of congress, before mentioned, confirm unto Nicholas Jarrot, his heirs and assigns, the above described tract or parcel of land, lying and being in the county of St. Clair, and containing 778 acres and 131 perches, together with all and singular, the appurtenances whatsoever, to the said described tract or parcel of land with the appurtenances, to him, the said Nicholas Jarrot, to have and to hold, to the only proper use of the said Nicholas Jarrot, his heirs and assigns, forever: saving, however, to all and every person, their rights to the same or any part thereof, in law or equity, prior to those on which the claim of the said Nicholas is founded.

In testimony whereof, I have hereunto set my hand, and caused the seal of the territory to be affixed, at Cincinnati, in the county of Hamilton, on the 12th day of February, A. D. 1799, and of the independence of the United States, the 23d.

Arthur St. Clair.

Registered: Wm. H. Ha/rrison, secretary of the territory.' Recorded 19th of October, 1804.

The verdict further finds, that on the 2d day of January, 1801, Jarrot conveyed the above mentioned premises, by deed of bargain and sale, to one George Lunceford. That the lessors of the plaintiff are the only heirs at law of said George Lunceford; that the premises mentioned in the governor’s confirmation were surveyed by Daniel McCann, who was lawfully authorized to survey such claims, and was after-wards surveyed by Wm. Rector, deputy surveyor of the United States, for the said George Lunceford, prior to the year 1812. The jury also find, that after the above recited confirmation and surveys were made, that the board of commissioners at Kaskaskia, who were empowered by the act of congress, bearing date the 20th day of February, 1812, to revise and re-examine the confirmations to land made by the governor of the north-west territory, did, in pursuance of the said act, after an examination of the said claim, make a report thereon to the government of the United States, whereupon the government of the United States, by its proper officers,. did reject the same.

The jury also find, that the said premises were afterwards exposed to public sale by the government of the United States, and that the defendant, Samuel Hill, became the purchaser of about 320 acres thereof, and has paid therefor, and obtained a patent from the United States.

Now, if the court should be of opinion that the law of the case is with the defendant, then the jury find him not guilty; but if the court should be of opinion, from the whole statement of facts here found, that the law is in favor of the plaintiff, then the jury find the defendant guilty of the trespass in the declaration mentioned, and assess the plaintiff’s damages at one cent. On this verdict, the circuit court rendered judgment for the defendant, and the cause is brought into this court by consent. On the part of the plaintiff, it was contended :

1. That the governor had full power to make the confirmation, and thereby a title in fee simple in the premises was vested in Nicholas Jarrot, which no subsequent act of the government of the United States could divest.

2. That congress had, by their legislation, recognized the confirmations, and thereby had, if there was any defect of power in the governor, made his acts valid.

On the part of the defendant it was urged:

1. That the governor had no power to make the confirma‘tion.

2. That he had exceeded his authority.

3. That congress have the power, admitting the governor acted in pursuance of law, to nullify his acts.

4. That the verdict is defective, because it does not appear that the premises lie within the limits prescribed by the resolution of congress, passed in 1788 ; and

5. Because the verdict does not find that plaintiff had a previous estate, for the confirmation to act on.

I propose to examine the correctness of the several positions advanced by the counsel for each of the parties. It was conceded on the argument that the United States were the original proprietors, and the source from whence the title of both parties were derived to the premises.

It is a principle in the action of ejectment, that let the defendant’s title be ever so defective, still it is incumbent on the lessors of the plaintiff to furnish evidence of a good title in themselves. Has such evidence been produced ? In order fully to understand the nature of the title exhibited on the part of the lessors, it will be necessary to take a concise view of the history of this country, and the legislation growing out of it.

The whole territory north of the river Ohio, and west of Pennsylvania, extending northwardly to the northern boundary of the United States, and westwardly to the Mississippi river, was claimed by Virginia to be within her chartered limits, and during the revolutionary war her troops conquered the country, and Virginia came into the possession of the French settlements situated on the Mississsippi river. New York, Connecticut and Massachusetts, also claimed portions of the same territory. Other states, whose limits contained but small portions of waste and uncultivated lands, contended that a portion of the uncultivated lands claimed by Virginia, New York, &o., ought to be appropriated as a common fund to pay the expenses of the war. , Congress, to compose these conflicting claims and opinions, recommended to the states having large tracts of waste unappropriated lands in the western country, to make a liberal cession to the United States of a portion of their respective claims, for the common benefit of the Union. Virginia, in pursuance of this recommendation, on the 1st of March, 1784, yielded to the United States all her right, title and claim to the territory north-west of the river Ohio, upon certain conditions.

One of the conditions contained in the deed of transfer from Virginia to the United States, and acceded to by the United States, is as follows : “ That the French and Canadian inhabitants, and other settlers of the Kaskaskias, St. Vincents, and the neighboring villages, who have professed themselves citizens of Virginia, shall have their possessions and titles confirmed to them, and be protected in the enjoyment of their rights and liberties.” The acceptance on the part of the United States of the deed transferring this country, imposed on them the duty to have the possessions and titles of the inhabitants of the country confirmed to them; but no steps were taken by congress relative to this subject until the year 1788, when George Morgan and his associates presented a memorial to congress, proposing to purchase a large tract of land in Illinois, on the Mississippi river, including all the French settlements on that -river, and the premises in question.-

On this memorial, a committee of congress made a detailed report to that body, on the 20th June, 1788, which was agreed to by Congress, and thereby the recommendations of the report became a law, such being the manner in which congress, under the confederation enacted laws. See 1st Vol. Laws of United States, 580.

The committee in their report say that “ they are of opinion that from any general sale which may be made of the lands on the Mississippi, there should at least be a reserve of so much land as may satisfy all the just claims of the ancient settlers on that river, and that they should be confirmed in the possession of such lands as they may have had at the beginning of the late revolution, which have been allotted to them according to the laws and usages of the • governments under which they have respectively settled.” The committee then recommend that separate tracts be reserved, embracing within their limits all the claims of the inhabitants, as was supposed, for satisfying the “ claims of the ancient settlers,” and for donations “ for each of the families now living at either of the villages of the Kaskaskias, La Prairie du Eocher, Kahokia, Fort Chartres, and St. Phillips.”

They further recommended “ that measures be immediately taken for confirming in their possessions and titles the French and Canadian inhabitants, and other settlers on those lands, who on or before the year 1783 had professed themselves citizens of the United States, or any of them, and for laying off the several tracts which they might rightfully claim within the described limits.” The report concludes as follows: “ that whenever the French and Canadian inhabitants, and other settlers aforesaid, shall have been confirmed in their possessions and titles, and the amount of the same ascertained, and the three additional parallelograms for future donations, and a tract of land one mile square on the Mississippi, extending as far above, as below Fort Chartres, and including the said Fort, the building and improvements adjoining the same, shall be laid off; the whole remainder of the soil, within the reserved limits above described, shall be considered as pertaining to the general purchase, and shall he conveyed accordingly.” “That the governor of the western territory be instructed to repair to the French settlements on the Mississippi, at and above the Kaskaskias; that he examine the titles and possessions of the settlers, as above described, in order to determine what quantity of land they may severally claim, which shall be laid off for them at their own expense; and that he take an account of the several heads of families living within the reserved limits, in order that he may determine the quantity of land that is to be laid off in the several parallelograms, which shall be laid off accordingly by the geographer of the United States, or his assistant, at the expense of the United States.”

This report was subsequently re-committed to a committee, who, on the 28th of August, 1788, reported to congress some alterations in the terms of the contract between Morgan and his associates and the United States, but no essential variations were made in relation to the French and other settlers on the land, except as follows: “ That in case there are any improvements belonging to the ancient French settlers without the general reserved limits, the same shall also be considered as reserved for them in the sale now proposed to be made.” This report was adopted by congress. It may be here remarked that the contemplated sale to Morgan and others was never effected. On the report of another committee, instructions were given by congress to the governor of the western territory, dated 29th of August, 1788, from which I make the following extracts :

“ Sir : You are to proceed without delay, except while you are necessarily detained by the treaty now on hands, to the French settlements on the river Mississippi, in order to give despatch to the several measures which are to be taken, according to the acts of the 20th June last, and the 28th inst., of which a copy is inclosed for your information.” “ When you have examined the titles and possessions of the settlers on the Mississippi, in which they are to be confirmed, and given directions for laying out the several squares, which the settlers may decide as they shall think best among themselves, by lot, you are to report the whole of your proceedings to congress.”

Whether the governor took any immediate steps to perform the duties enjoined on him by this letter of instructions, and the acts of Congress of the 20th June and 28th of August, 1788, does not appear from the verdict, and I am not acquainted with any public document to ascertain the fact. But, that congress did not consider that the power of the governor should cease upon his failure to proceed without delay” to attend to his business, is evident from the act of congress entitled “ An act for granting lands to the inhabitants and settlers at Vincennes, and the Illinois country, in the territory northwest of the Ohio, and for confirming them in their possessions,” passed 3d March, 1791.

From a hasty perusal of this act, it might be inferred that it was intended as a substitute for the acts of the 20th June, and 28th August, 1788, and consequently a virtual repeal of them. I am, however, satisfied from a careful perusal of the act, that such was not the intention of congress, but that this act was intended to embrace cases not included in the former acts, and repeals a part of the act of 28th August, 1788. That this is the object of this act, will appear from the following abstract of the different sections : Section one gives 400 acres to each of those persons who, in 1783, were heads of families at Vincennes, or in the Illinois country on the Mississippi, and who, since that time, have removed from one of the said places to the other.” This section gives the donation, notwithstanding a removal from one place to another. ' By the second section, heads of families at Vincennes, and the Illinois country in 1783, who afterwards removed without the limits of the territory, are, notwithstanding, entitled to the donation of 400 acres, made by a resolve of congress on the 29th of August, 1788, and the governor is directed to cause the same to be laid out for such heads of families, or their heirs, and to cause to be laid off and confirmed to such persons, the several tracts of land which they may have possessed, and which, before the year 1783, may have been allotted to them according to the laws and usages of the government under which they may have respectively settled. Provided, that if such persons, or their heirs, do not return and occupy the said land within five years, such land shall be considered as forfeited to the United States.”

One branch of this section gives the donation of 400 acres, notwithstanding the settler had moved out of the territory ; and the other branch authorizes a confirmation of lands that may have been possessed, according to the laws and usages by allotment, but without a legal title to the fee. But in both cases the grant to be forfeited, in case the settler or his heirs do not return and occupy said lands in five years.

This section can not be considered a compliance with the obligation resting on congress to confirm the French settlers in their possessions and titles in pursuance of the deed of cession from Virginia. The confirmation contemplated by the cession, was an absolute assurance of the land to these “ persons, whether they occupied them or not. The third section of the act relates to other matters.

The fourth section is as follows : “ That where lands have been actually improved and cultivated, at Vincennes, or in the Illinois country, under a supposed grant of the same, by any commandant or court, claiming authority to make such grant, the governor of said territory be, and he is hereby empowered, to confirm to the persons who made such improvements, their heirs or assigns, the lands supposed to have been granted as aforesaid, or such parts thereof as he, in his discretion, may judge reasonable, not exceeding, to any one person, 400 acres.” This section evidently embraces only such cases as from defect of power in the granting authority left the settler without any valid title to support his possession, and hence it only operates on cases where the settler had actually improved and cultivated the land, and limits the extent of the confirmation to 400 acres. This, clearly, is not the confirmation contemplated by the deed of cession. The deed of cession intended to secure the inhabitants in their titles, whether they cultivated the land or not, and whatever might be the extent of their claim. This section then, does not embrace the possessions and titles contemplated by the deed of cession. The 5th, 6th and 7th sections relate to other matters.

The eighth and last section repeals “ so much of the act of congress of 28th August, 1788, as refers to the location of certain tracts of land directed to be run out and reserved for donations to the ancient settlers in the Illinois country and “ the governor of the said territory is directed to lay out the same agreeably to the act of congress of the 20th of June, 1788.” This section clearly recognizes the act of 20th June, 1788, as in full force. From this review of the act of 1791, it will be perceived that all its provisions are in addition, and not repugnant to, nor in lieu of, the provisions of the act of the 20th of June, 1788.

That portion of the act of 1788 that relates to the confirmation of the titles of the settlers, was in compliance with the obligation of duty; the act of 1791 was prompted by a spirit of liberality towards persons who had recently, by the fate of war, become subjects and citizens of a government to which they were strangers, and was, no doubt, intended to conciliate and secure their attachment to the United States. If then the act of June 20th, 1788, is to be regarded as in force, notwithstanding the act of 1791, what power did it confer on the governor of the northwestern territory ? -Doubtless upon the change that was effected in the government, when the French settlements were conquered by the troops of Virginia, many fears would be excited in the minds of the inhabitants, that the grants that had been made to them by the French and British governments, would not be recognized by their conquerors. To allay any such fears, was probably the reason that induced Virginia .to require the confirmations of the titles and possessions of the French settlers; and to effect so desirable an object, some act was required to be performed in pais, which would completely quiet all apprehensions. Could this be done by any thing short of an acknowledgment, on the part of the United States, that they never would disturb such titles and possessions as their agents should determine to be valid ? A deed of confirmation, or patent, would release all the interest of the United States in the titles and possessions of the settlers, and effectually answer the wise and benevolent object that Virginia doubtless had in view in requiring that the United States should confirm these titles and possessions.

That congress intended to clothe the governor with power to make confirmations of the possessions and titles of the French inhabitants of the Illinois country, is sufficiently apparent from the language of the acts and instructions of 1788. Should any doubt, however, exist on the subject, the act of 1791, being a subsequent exposition of their intention and meaning, would remove it. By the fourth section of the act of 1791, “where any lands have been actually improved and cultivated, at Vincennes, or in the Illinois country, under a supposed grant of the same, by any commandant or court claiming authority to make such grant, the governor of the said [north-west] territory, hereby is empowered to confirm to the persons who made such improvements, their heirs or assigns, the lands supposed to be granted as aforesaid, or such parts,” <fcc.

That the governor should be empowered to confirm claims which rested on the liberality of congress only, and not those founded on previous right, and which the United States were bound to confirm by a solemn compact, is so inconsistent with reason that congress ought not to be supposed to have intended any such distinction. A reference to this statute, being in pari materia, is proper to ascertain the probable intention of congress, if the acts and instructions of 1788 are 'not sufficiently clear in themselves.

That other statutes on the same subject may be consulted in construing what is doubtful, see 4 Bac. Abr., 647, 1 Kent’s Comm., p. 433.

The intention of the legislature should also be regarded, though seeming to vary from the letter. 4 Bac. Abr., 643. From the letter and spirit then of the acts of 1788, and the instructions of the same year, it appears sufficiently clear that the governor had power to make deeds of confirmation to the French, and other inhabitants of the Illinois country.

These deeds of confirmation must also be considered at least as prima facie evidence that they were rightfully made. The governor was authorized to confirm to the settlers their possessions and titles, and if his acts are not to be regarded prima facie, as honestly and fairly done, what benefit would result to the settlers ?

If in order to show their deeds of confirmation they must first give evidence of the title to their land, then the confirmations of the governor would be a farce, and the settlers would have been at the expense of surveying their lands for no useful purpose. But in truth, these confirmations were to be a benefit to the United States, as well as to the settlers. For by the settlers surveying their lands, and exhibiting their claims to the governor, the United States became apprized of the extent of those claims, and were thus enabled to ascertain what lands remained to them subject to be sold. It was a convenient mode of dividing the lands of individuals from the lands of the nation, and as an inducement for the settlers to survey their claims and adduce their titles to the governor, he was authorized, should he, upon examination find them honest and fair, to relinquish all claim on the part of the United States to those lands. “A confirmation at common law, is of a nature nearly allied to a release, and is a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased.” 2 Bl. Com., 325. Upon this definition of a confirmation, the confirmor, or those claiming under him, would not be permitted to deny the pre-existing estate in the confirmee. The confirmor, and those claiming under him, would be estopped by his deed. But from an examination of the several acts of congress relative to governors’ confirmations, a higher character has been given them than that of mere confirmations.

By the fourth section of the act entitled “An act supplementary to an act entitled an act making provision for the disposal of the public lands in the Indiana territory, and for other purposes,” passed 3d March, 1805, it is enacted “ that the lands lying within the districts of Vincennes, Kaskaskias, and Detroit, which are claimed by authority of French or British grants legally executed, or by virtue of grants issued under the authority of any former act of congress, by either of the north-west or Indiana territories, and which have already been surveyed by a person authorized to execute such surveys, shall, whenever it shall be necessary to resurvey the same for the purpose of ascertaining the adjacent vacant lands, be surveyed at the expense of the United States, any act to the contrary notwithstanding.” Third Vol. Laws U. S., 671. As I have been unable to find any act of congress which gave to the governors of the north-west territory any power to make “grants,” except the acts of 1788 and the act of 1791, I thence infer that the “ confirmations ” contemplated by those acts were regarded by congress in the nature of grants, so far as the United States were concerned; and if grants, a subse-r quent sale of the granted lands by the United States, although followed by a patent, is void. In the act entitled “An act respecting the claims to land in the Indiana territory and state of Ohio,” passed 21st of April, 1806, the confirmations authorized by the acts of 1788 and 1791, are called “patents,” and this probably is the more correct name by which to designate the instruments granted by the governor under the acts of 1788 and 1791.

The second proposition of the plaintiff is, that congress had recognized by their legislation the confirmations, and thereby had, if there was any defect of power in the governor, made his proceedings valid. The authority of the governor to confirm the titles and possessions of the settlers under the acts of 1788 and the act of 1791, continued until the 26th of March, 1804, a period of nearly sixteen years, when a board of commissioners were appointed to sit at Kaskaskia, to hear proof relative to British and French grants, and report to the secretary of the treasury.

This board virtually superseded the powers of the governor. But nothing appears from the acts of congress in disapprobation of the proceedings of the governor, until the passage of an act on the 20th February, 1812, which authorized the register and receiver of the land office at Kaskaskia and another person to be appointed by the president of the United States, to examine and inquire into the validity of claims to land in the district of Kaskaskia, which are derived from confirmations made, or pretended to be made, by the governor of the north-west and Indiana territories respectively, “ and they shall report to the secretary of the treasury, to be laid by him before congress at their next session, their opinion on each of the claims aforesaid.” It will be recollected that the governor was directed by the instructions of the 29th of August, 1788, to report his proceedings to congress, and it is fair to presume that he kept congress, from time to time, advised of his doings, for congress had the subject repeatedly before them, and passed several acts which, if they do not expressly sanction the proceedings of the governor, do so impliedly ; at all events, as the governor continued to act for so long a period, with at least the tacit, approbation of congress, and his acts remaining unimpeached for a period of more than twenty years from the time his authority commenced, and the lessor’s ancestor being an innocent purchaser, the soundest principles of policy, as well* as of good faith, require that the governor’s “ confirmations ” should be considered at least prima facie, valid. Upon both grounds then, the plaintiffs are entitled to recover, unless the defendant has shown an older title derived under a French or British grant, or some fact that will invalidate the deed of confirmation offered in evidence on the part of the plaintiffs. The first objection urged against the plaintiff’s right to recover is, that the governor had no power to make the confirmation. But if the views, above taken are correct, the governor was authorized by the resolutions and instructions of June and August, 1788. The second objection is, that the governor exceeded his authority. It was urged in support of this objection, that if the governor had power to confirm, he was limited to 400 acres.

From the review however, of the act of 1791, it appears that the limitation of 400 acres applies only to donations and defective claims, and not to confirmations of valid pre-existing rights. The third objection is, that congress have the power to nullify the acts of the governor, admitting he had power to make confirmations.

This position is too outrageous in a government of laws, to merit any consideration. Congress have not, however, exercised any such power. The act of 1812 only authorized the register and receiver to inquire into the validity of the governor’s confirmations, and were to report their opinion to the secretary of the treasury, who was to lay the same before congress, and it does not appear that congress ever passed any law on the subject of those confirmations on which the commissioners reported an unfavorable opinion. The secretary of the treasury however, considered these confirmations void, and directed the sale of the land. But the secretary had no power to order the sale of any lands except those belonging to the United States. If the governor’s deeds of confimation or patents were obtained by fraud or misrepresentation, the deed of confirmation or patent is good until set aside by due course of law. The remedy of the second patentee in such cases is by scire facias, or a bill or information in a' court of chancery. See the case of Jackson v. Lawton, 10 Johns. Rep., 23, where it was decided that “ if a patent has been issued by fraud, or on false suggestion, unless the fraud or mistake appears on the face of the patent itself, it is not void, but voidable only by suit for that purpose.” The fourth objection is, that the verdict is defective, because it does not appear that the premises lie within the limits prescribed by the resolutions of congress passed in 1788. The answer to this objection is, that such proof was unnecessary, for by the resolution of 28th of August, 1788, the improvements of the settlers “ were reserved for them,” whether “ the improvements were within or without the reserved limits.”

J. Reynolds, for plaintiffs.

Ford, for defendant.

The last objection is, that the verdict does not find that the confirmee had a previous estate in the premises for the deed of confirmation to act on.

I am clearly of opinion, for the reasons heretofore given, that the confirmation was a release of the interest of the United States, and that the presumption was, that the deed of confirmation was made in a case authorized by the resolutions of June and August, 1788. If the governor’s patent is to be considered as a technical deed of confirmation, then the confirmor, and all claiming under him,-are estopped. Upon the whole, the law arising on the special verdict being in favor of the -lessors of the plaintiffs, the judgment of the circuit court must be reversed with costs, and the cause remanded to the circuit court of Monroe county, with directions to enter judgment for the plaintiffs agreeably to this opinion, and the circuit court of Monroe county will make such order in relation to improvements on the premises, if any there are, as the statute and the facts of the case will warrant.

Judgment reversed.


text:
    The Administrators of Ferdinand Ernst, deceased, Appellants, v. Mary Ann Ernst, Appellee.
    APPEAL FROM FAYETTE.
    A debt due to the state bank is a debt due to the state, which the state can release.
   Opinion of the Court by

Justice Smith.

The bill in this case alleges that the intestate, in the year 1822, died indebted to the state of Illinois, and to the state bank, in the sum of twenty-two hundred and thirty-two dollars, as by reference to the records of the said county, and to the records of the circuit court of Fayette county, will appear. That the intestate died seized of certain real estate enumerated in the bill, and other interests in certain town lots in Vandalia, and public lands purchased by him of the United States.

That the legislature of this state at their session of 1828, passed an act releasing the said intestate’s estate from the payment of such debts, and did direct the administrators to sell the same lands, and to pay the avails thereof to the complainant. That the administrators, disregarding such law, have applied to the circuit court aforesaid, to grant an order to sell such lands for the benefit of the common creditors of the said intestate, and refuse, when the same are sold, to apply the avails thereof to her, as she alleges she is entitled to them, under the provisions of the aforesaid law.

The bill designates what part of the lands were mortgaged to the bank, and the two lots, 4 and 8, are the ones on which the indebtedness of Ernst accrued, and were the consideration of the note on which the judgment was founded. The answer recites an account of the disposition of the personal estate of Ernst, and alleges that there are debts due and unsatisfied to an amount of nearly twenty-eight hundred dollars.

It also alleges, that by an order of the circuit court of Fayette, the lands described in the complainant’s bill were, at the preceding term of the said court, ordered to be sold for the payment of the debts of the said Ernst; that they have been sold on a credit.

That the title of the said Ernst was not complete to a portion of the property sold by them, but which part is not designated, and they, therefore, sold only his interest therein; they allege that the law is unjust, and not binding, and pray that whatever decree is made, may be made with reference to such portion as the title was incomplete to.

Tfie circuit court decreed, that out of the proceeds of the sale of such property, the appellants should pay to the complainant, when collected, the sum of seven hundred and forty-two dollars and eighty-eight cents, being the proceeds of the sales of said property after deducting the expenses thereof. To reverse this decree, the present appeal is prosecuted.

To a correct determination of this question, it will be necessary to premise, that by a decision of this court, in an action prosecuted against the administrators of Ernst, by the state bank, and for the very debt due by mortgage, it was determined that a debt due to the bank, was a debt due to the state, and that under the provisions of the recited act, the debt thus due by Ernst, was released. By the provisions of that act the state released the estate of Ernst from the payment of any debts due the state, and transmitted all their interest therein to the complainant. How far it was competent for them to authorize a sale of all the real estate and equitable interests of the intestate in lands, to be appropriated to the contemplated beneficent objects of the statute, is worthy of consideration.

The phraseology of the act is general, aiid includes all the lands and equitable interests of the intestate therein, except parts of sundry lots contracted to be conveyed before the death of the intestate. It must readily be perceived the state could not, rightfully, authorize the sale of the estate of the intestate, for the purposes expressed in the law, only so far as the state had a legal interest in them. This interest no where appears in the act itself, but the allegations of the bill show, that to a portion of it the bank held a mortgage, and to another portion the state had the title in itself. So far, then, as the bank had a lien by mortgage, and to as much as the fee in the lands was in the state, no doubt can remain of the power of the state to order the sale, and direct the appropriation of the proceeds of the sale to the benevolent purposes intended by the passage of the law. It does not appear from the proceedings, that any of the lots enumerated in the bill, are the parts of sundry lots contemplated in, and excepted from sale by the second section of the act. If such were the fact, the appellants should have shown it in their answer, to have exempted them from the operation of the decree.

They, however, only aver, that to a portion of the -property sold, the intestate had no legal title, and that they only sold the interest of the intestate, and ask, therefore, that the proceeds of such parts, without specifying what parts in particular they are, be exempted from the operations of the decree. It is not perceived that the decree, from an inspection of the proceedings themselves, which are in many particulars too general and indefinite to a critical understanding of the rights of the parties, is not warranted by the state of facts presented by the bill and answer, except in appropriating the proceeds of the sale of the three quarter sections of land purchased of the United States, on which the first installment has only been paid. These appear to have been sold for the sum of one hundred and five dollars, and ought not to have been included, and for so much, the decree is, necessarily, erroneous.

But to the remainder, it seems that any other decision would involve a construction of the act of 1823, at war with its whole spirit and manifest intent.

The proceeds of the property can not be supposed, upon any principle of justice or right, to have been intended to revert to the creditors of Ernst in common. The state has furnished the fund, and had a clear right to direct its appropriation ; and from the moment of the passage of the act, the administrators must be considered as vested with the interest of the state, in the lands mortgaged to the bank, and that, to which the state had not parted with its title, as trustees for the complainant. The vesting of the lands in the administrators for the purposes of sale, and the release of the debt, are contemporaneous acts, and although, as to the intestate, the debt was released, the lien on the mortgaged lands was not thereby released.

The law never contemplated, even if the lots, to which the intestate had no more than an equitable interest, are the parts of sundry lots authorized to be conveyed by the administrators, and which have not been conveyed, because the individuals to whom they were sold by the intestate have not complied with their agreement, should be sold by the administrators, and the proceeds thereof appropriated to the payment of the claims of the common creditors, because the state never could have contemplated such an act of extraordinary generosity as to appropriate its own property to the payment of the debts of any individual. Neither the letter nor spirit of the law warrants such an inference.

The court are, so far as they can consistently with the language of the statute, bound to give it such an exposition as will best carry its intentions into effect. This can only be done by giving to the complainant the benefit of the proceeds of the sales of the property, as made by virtue of the order of the circuit court, with the exception of the three quarter-sections named.

The judgment or decree of the circuit court, for the sum of eight hundred and seventy-three dollars, sixty-six cents, to be recovered of the defendants in the court below, is affirmed, to be paid out of the proceeds of the sale of the property named in the bill, excepting the N. E. qr. 24, 6 N. 1 W., S. E. 12, 6 N. 1 W., N. E. 36, 7 N. 1 W., which sold for 105 dollars; and so much of the decree as directs the proceeds of these lands to be paid to the complainant, is reversed. The costs of the appeal to be divided between the parties, and judgment entered in conformity to this opinion.

Brown, for appellants.

Cowles, for appellees.

       Laws of 1823, p. 178.

       Wilson, Ch. J., dissented from this opinion, and Lockwood, L, gave no opinion.


text:
    John McLean, Appellant, v. Joseph B. Emerson, Appellee.
    APPEAL FROM GALLATIN.
    The act of the 22d March, 1819, respecting replevin bonds, declaring that such bonds shall be executed to the sheriff, does not mean that the sheriff shall be the obligee in such bonds, the word “ executing ” meaning nothing more than a making and delivery to the officer named, and such bonds, made payable to the plaintiff in the original action, are legally executed.
    In a replevy bond, the fees of the officer are correctly inserted, and it is regular, though it should be for more than double the amount of the judgment.
   Opinion of the Court by

Justice Smith.

This is an appeal from the decision of the Gallatin circuit court, on a motion to quash a replevin bond entered into by appellant in 1819, as security, which motion the circuit court overruled.

The grounds of error relied on for the reversal of the judgment of the court below, may be embraced in two points:

1. Whether the bond is void because taken in the name of the plaintiff in the original action.

2. Whether, in other respects, the provisions of the statute of 1819, respecting replevin bonds, have been complied with.

By the first section of the act for the relief of debtors, approved March 22d, 1819, it is declared “ that all executions which now are or hereafter may be issued on any judgment or judgments, which heretofore have been, or hereafter may be recorded or given, the defendant or defendants shall be permitted to replevy the same for twelve months, upon executing bond, in double the amount of the execution, with sufficient security or securities, to the sheriff of the county, conditioned for the payment of the amount of such execution, with legal interest, and all costs that may accrue thereon,” unless the plaintiff has previously authorized the sheriff to take certain bank notes, enumerated in the statute, which bond is to be deposited by the sheriff in the office of the clerk of the circuit court. It is further provided, that such bond shall have, in all respects, the force and effect of judgments of record, and be subjected to be proceeded on in like manner. Under the first section, it is contended that the bond should have been taken in the name of the sheriff, and that being in the name of the plaintiff, it is, for that reason, void.

The act declares that the bond shall be executed to the sheriff, but does it, because the statute requires it to be executed to the sheriff, necessarily imply that the sheriff is to be the obligee in the bond? Does the term “ executed” imply any thing more than a making and delivery of the bond to the officer named, and is it not used in a synonymous sense ? Can the term “executed” imply that the sheriff, who is no party in the original action, and who has no interest in the judgment, shall thus become the plaintiff in a judgment to be subsequently entered up upon the bond, and become entitled to control that judgment, receive the avails thereof, and no provision be made for his accounting to the creditor, for the proceeds of the judgment to be thus received ?

The statute, it will be perceived, has not required the sheriff to make an assignment of the bond, as is always provided where bonds are taken by a sheriff for the benefit of third persons in his name, and in the absence of such a provision, and when no possible reason can be given, why the legislature should have intended that the sheriff should be the obligee in the bond, it is seriously contended that the bond is void, because the name of the plaintiff in the original cause, is inserted in the bond as the obligee.

If such a construction were sanctioned, it would involve the incongruity of subjecting the defendant, in the first action, to two judgments for the same cause, in right of different parties, and place the legal rights of the creditor under the disposal and entire control of one, having no possible right or interest in the original judgment.

The legislature could never have contemplated such an absurdity, and it ought not, from any ambiguity in the statute, to be inferred.

The objects and reasons of the statute clearly imply that the sheriff is only to receive the bond, and by executing the bond to the sheriff, no more than a making and delivery to that officer of a bond could have been intended, supposing •that it would be in the name of the plaintiff in the original execution, of course. This inference is also to be drawn from the provision requiring him to deposit the bond in the clerk’s office. The taking of the bond in the name of the plaintiff in the original cause, is conformable to the relation and right of the respective parties, and is in accordance with the spirit and intention of the statute. Such has been the constant, and I believe, uniform practice under the statute, and the correctness of it has never before been questioned. Such is the course pursued in the state of Kentucky; and one provision of their statutes relating to replevins is, in this very point, equally ambiguous ; indeed, it says that the party may replevy by “ giving bond with approved security to the officer, to pay the amount of debt, interest, and costs of such execution to the plaintiffAccording to the construction contended for by the appellant, it might with the same propriety be urged that the bond, under this clause of their statute, ought to be taken to the officer. Yet neither under this clause of the Kentucky statute', nor any other relating to replevin bonds, is it the practice.

Under the second point, it is also urged that the bond is taken for more than double the amount, and that the sheriff’s fees are included. The fees of the officer are correctly inserted. The statute authorizes all costs arising on the execution to be included, and the insertion of a sum greater than required, has been assented to by the obligors in the bond, and can not now be urged by them as error. Independently of these considerations, the appellant has clearly concluded himself by his own act and gross neglect. The replevin bond was executed in September, 1819, and in November, 1820, execution was sued out; between this time and up to the 7th of March, 1826, a period of more than five years, various other executions were sued out and levied on the property of all the defendants, and in one instance the appellant caused the property of the principal debtor to be released from execution, and tendered real estate of his own for such purpose, and in lieu thereof, which was received. It also appears, that under some of these executions the sum of 330 dollars has been collected. Under every view of the facts in this case, and the statute under which the bond has been taken, we are constrained to say that the bond has been rightly taken, that nothing appears to vitiate it, and that, more especially, from the great delay and acquiescence of the appellant himself in the proceedings, he has himself waived all possible benefit of the exceptions taken, even if they were tenable.

Eddy, for appellant.

Gatewood, for appellee.

The judgment below is, therefore, affirmed with costs.

Judgment affirmed.

       Laws of 1819, p. 159.


text:
    James M. Duncan, Plaintiff in Error, v. Clement B. Fletcher, Defendant in Error.
    ERROR TO FAYETTE.
    Parties who agree to submit their case to arbitration, will be governed by their agreement, and if one party stands by and suffers judgment to be entered on the award, to which technical objections could be made, this court will not interfere to reverse the judgment.
    Where no fraud is charged or injustice alleged, the court will presume that the referee was sworn, if the fact does not appear on the award.
   Opinion of the Court by

Justice Smith.

This is a case of reference of a suit in the circuit court of Fayette, by consent of parties, under the fourth section of the Act regulatingarbitrations, and references,” approved 6th of January, 1827, and brought into this court by writ of error. Two grounds are assumed as cause of error and relied on, for the reversal of the judgment of the circuit court:

1. That it does not appear on the face of the award that the arbitrator was sworn.

2. It does not appear on what day the award was made.

To determine the questions presented for the decision of the court, it will be necessary to refer to the terms of agreement under which the reference was made. The agreement is in the words following, viz.:

It is agreed between the parties in this case, that the same be referred to James Black, and that the books of C. B. Fletcher shall be evidence of the correctness of said account on the part of the plaintiff, and so far as they may make for the defendant, and that the award of the said James Black, shall be entered up as the judgment of the court. It is further agreed that said accounts shall be adjudicated, upon Saturday, the 29th of September, instant, whether the said parties are or are not present. And it is further agreed that all evidence which might be received in this court, shall be examined by the said arbitrator who may call in a proper officer to swear witnesses.

J. M. Duncan.

Signed, W. H. Brown, for plaintiff.

By this agreement it does not appear that the parties required the referee to be sworn, before acting on the matters submitted to him ; nor by his report does it appear, affirmatively, that he was not sworn. If the reference be considered as a mere matter of consent and not under the statute, then, so far as it regards the necessity of the referee being sworn before acting on the matters submitted to his decision, the parties have themselves, manifestly, waived that necessity by their agreement. But I am disposed to consider the reference as made under the fourth section of the act above quoted.

By the sixth section of that act, it is declared that each arbitrator and referee shall, before proceeding to the duties of his appointment, take an oath or affirmation, faithfully and fairly to hear, examine and truly to award or report, on the matters submitted to him. It was necessary, no doubt, that he should have taken the oath required, but whether such oath has, or has not been taken, can not be ascertained from the face of the report of the referee; it may, or may not, have been done.

If the defendant in the court below wished to have ascertained that fact, and considered it material to the decision of the cause, the objection ought to have been there made, because it did not so appear; or he might by affidavit, have shown the fact himself and thus impeached the report; or he should at the time of filing the report, have objected to the rendition of a judgment upon it, because of the absence in the report of an averment that the referee had been sworn. This was not done ; neither course was pursued.

The court is in justice bound to presume that the requisition of the law has been complied with, after the party has stood by and neglected to make his exceptions, which are in a great measure merely technical.

It ought to presume in a case like the present, where no injustice is charged to have been done, where no fraud, partiality or mistake is alleged in the conduct of the referee, or his determinations, and for aught that appears, the report is both accurate and just as to the amount awarded, that the oath required has been taken.

It was in the power of the party in the court below to have raised the objections, and indeed to have contradicted the report, or impeached the conduct of the referee, if just cause had existed. He, however, lies by and suffers judgment to be entered without opposition. Had the objections been raised in the court below it would have given the plaintiff an opportunity to have made the report in respect to the objections urged, conformable to the fact, and to have inserted in the report, the averment of the oath having been taken.

Hall, for plaintiff in error.

Brown, for defendant in error.

The same view is taken of the second objection. The award is not required to be made on any day, but the adjudication, as it is termed in the agreement, is to be on a particular day, whether the parties are present or not, and the evidence to be examined is the books of the plaintiff only, and by which the precise amount due is to be determined by the referee. The report does not aver that the referee did adjudicate the matter in dispute on that day, it is true, but was it really necessary that it should be done ? The necessity for it is not perceived, and even if it were, the objection ought to have been made in the court below, so as to have afforded the plaintiff an opportunity to have shown the fact. The defendant might have shown, as has been before suggested, that it was done on a different day, and thus impeached the report; it has not been done, and the absence of the averment ought not now, when such opportunity could not be afforded, to operate to the prejudice of the plaintiff. The court is bound to presume that the condition prescribed for the observance of the referee has been complied with. In support of this rule I refer to a case decided in New York, reported in 17 Johnson, 461, where it is determined, “ that in a cause referred by the agreement of the parties to three referees, who, or any two of them were to report, and two only of the referees signed the report, which stated that the subscribers having heard the proofs and allegations of the parties, find,” &c., on a writ of error brought on a judgment entered on the report; it will be presumed that all the referees met and heard the parties, though two only signed the report, nothing appearing to the contrary on the record; but if the fact were otherwise, the objection ought to be raised in the court below on the coming in of the report, and not in the court of error, which can only look to the record. The present case, manifestly falls within the reasons of this decision, and is indeed a case analogous in principle. The judgment of the circuit court must, therefore, be affirmed with costs, ,

Judgment affirmed.

       Rev. Code of 1827, p. 65.

        Chandler v. Gay, p. 88. Cromwell v. March, p. 295.

       See note to Chandler v. Gay, ante, p. 88.


text:
    Nathan Cromwell, Plaintiff in Error, v. Enoch C. March, Defendant in Error.
    ERROR, WITH SUPERSEDEAS, TO MORGAN.
    The bond upon which a supersedeas had been obtained, was executed by “ M., attorney for the plaintiff,” on a motion to dismiss the writ of error for that cause, the court overruled it, but quashed the supersedeas, and awarded aprocedendo.

      W. Thomas, for the defendant in error,
    moved the court to dismiss this writ of error, on the ground that the plaintiff in error did not execute a bond as the statute required, and showed that the bond which had been executed, was executed by “ Murray M’ Connel, attorney for the plaintiff.”
   Per Curiam.

The motion to dismiss the writ of error is overruled. Let the supersedeas be quashed, for the reason that it does not appear that McConnel was authorized to sign the bond as attorney, and let a procedendo issue to the clerk of the Morgan circuit court.

Motion overruled.

       Where a bond was executed in order to make a writ of error a supersedeas, it appeared to be signed by the party, by his attorney in fact; the authority of the attorney was presumed, and the supreme court refused to inquire into the fact, unless it was shown by affidavit, that no such authority existed. Campbell v. State Bank, 1 Scam., 423. But now, rule 2d of the supreme court, adopted at the November term, 1858, (see 19 Ill. Rep.,) provides: “ Whenever a bond is executed by an attorney in fact, the clerk shall require the original power of attorney to be filed in his office, unless it shall appear that the power of attorney contains other powers than the mere power to execute the bond in question; in which case, the original power of attorney shall be presented to the clerk, and a true copy thereof filed, certified by the clerk to be a true copy of the original.”
      The supreme court will presume that a bond, executed by an attorney in the name of his principals, and filed in the court below, was executed by a person duly authorized, and that the court below was satisfied of that fact, unless the contrary appears. Sheldon v. Reihle et al., 1 Scam., 519.


text:
    Alexis Phelps, Appellant, v. Robert R. Young, Appellee.
    APPEAL FROM ADAMS.
    Under the attachment law of 1827, which requires that the amount and nature of the indebtedness should be specified in the affidavit, it is sufficient to state that the non-resident "is justly indebted to the plaintiff in the sum of$-, by his certain instrument in writing signed by him.
    Upon an order for a change of venue and granted, but before the record is removed, an affidavit of the materiality of witnesses for the purpose of taking their depositions, is properly made in the circuit court of the county where the suit is brought, and the computation of time aud distance must be made from that county.
    It is not necessary that the magistrate should state the time and place of taking the depositions.
   Opinion of the Court by

Justice Smith.

This is an appeal from the Adams circuit court. The grounds relied upon for a reversal of the judgment of the circuit court, are,

1. The insufficiency of the affidavit required by the provisions of the act authorizing the suing out of attachments.

2. The alleged irregularity in the mode of taking the depositions which were read on the trial.

The proceeding must be considered as one against a nonresident debtor, and all the forms of the statute appear to have been complied with, unless the affidavit upon which the attachment was sued out, should be defective in not sufficiently specifying the nature of the indebtedness. The statute requires that the plaintiff in the attachment shall specify in his complaint, on oath or affimation, the amount and nature of the indebtedness of the defendant. The deposition sets out that Phelps is justly indebted unto the plaintiff “ in the sum of fourteen hundred dollars by his certain instrument of writing signed by him;” and the question is thus presented for determination whether this is the description of specification intended by the statute. It would seem at a first examination of the object of the act, that there was not that compliance with its spirit in the specification given, as its framers intended, but when it is recollected that the plaintiff has filed his declaration, in which the entire cause of action is fully set forth, the objection loses its force; and the more completely so, as the defendant did, at no time in the court below, except to the sufficiency of the affidavit for the cause now alleged, or for any other.

The objection, as to the irregularity in taking the deposition, is equally untenable. Upon the death of the magistrate before whom the depositions were to have been taken, the magistrate to whom the docket of the deceased magistrate was transferred, might have proceeded to take them, but the plaintiff took the precaution to give a further notice of the death of the magistrate, and that the examination of the witnesses would take place before another magistrate at the same place and hour, and to whom the docket and papers of the deceased magistrate had been transferred. The affidavit of the materiality of the witnesses, was properly filed in the circuit court of Jo Daviess county, before the removal of the record, although the change of venue had been awarded to Adams county. The witnesses were there to have been examined, and the computation of time and distance must be computed from that county, and not from Adams county. The further objection that the magistrate did not state the time and place of taking the depositions, is wholly immaterial.

As the proceedings are manifestly against a non-resident debtor, the objection, that it is not stated in the affidavit of the plaintiff, that “ the defendant had departed from this state with the intention of having his effects' and personal estate removed without the limits of this state,” is wholly inapplicable and untenable.

I am of opinion that the cause has been rightly decided, and that the judgment of the circuit court ought to be affirmed with costs.

Wm. Thomas, for appellant.

Strode and Cavarly, for appellee.

Judgment affirmed.

       Rev. Code of 1827, page 66,

       Rev. laws of 1827, p. 175, sect. 3.

       See note to Clark v. Roberts, ante, p. 285.


text:
    The People, &c., Plaintiffs in Error, v. Fernando D. Slayton, Defendant in Error.
    ERROR TO ADAMS.
    Upon an indictment found, a recognizance entered into by a person as surety for the appearance of the party indicted, who has not been served with process and who does not appear, is not obligatory upon such person. Where the person indicted has once entered into a recognizance, a separate one afterwards from a surety might be binding.'
   Opinion of the Court by

Justice Smith.

The question presented to the court in this cause is one of some novelty. From the record, it appears that the defendant in error in the court below became bound in a recognizance, for the appearance of one McCrany, before the circuit court of Adams county at a future day, at his own request, the defendant not appearing. Whether the principal in the indictment had ever been arrested or appeared in court, is not to be collected from the record, and the court can not presume that he was ever in custody. If it were so, the record should have shown it, but the presumption is, that as the recognizance follows the caption in the record, it is not so, and for the further reason that the recognizance is given by the defendant only.

To the scire facias sued out on this recognizance, the defendant filed a general demurrer, and a joinder was filed on behalf of the plaintiff. The circuit court sustained the demurrer because the principal was not joined with the security in the recognizance.

As it can not be ascertained whether the defendant was ever in custody, we are constrained to say that there was no obligation on the part of the principal to enter into a recognizance with a surety, and as the principal was not bound, the mere voluntary act of a third person in doing so is not obligatory. If it were otherwise, it might place the individual indicted under a condition to which he had never assented. The surety is the keeper of the person of his principal, and might control his person without his assent, if the principle be recognized, that one, without the assent of the principal, may thus enter into a recognizance for his appearance. It might be carried further. The principal being under no obligation tó appear at' the time required by the condition of the recognizance thus entered into, he is rightfully absent, and yet a forfeiture of the recognizance happening, and a recovery for the breach being had against the voluntary surety, he may recover back of the principal the amount of the forfeiture, if the recognizance be obligatory on the part of the surety. Such consequences, it would seem, must inevitably flow from a decision which should establish the validity of a recognizance entered into under such circumstances.

Attorney General, for plaintiff in error.

Cavarly, for defendant in error.

It is not, however, to be understood that where the principal has ever entered into a former recognizance, the taking a separate one afterwards from a surety would not be binding, because cases might arise in which it might be impossible to procure the attendance of the principal, and where it might be attended with great hardship, and be productive of oppression. In such cases, if from sickness or other unavoidable casualties, the principal can not appear, and a surety is willing to enter into a recognizance for his appearance to save the forfeiture of a former one, there can be no doubt that it would be obligatory. The present case, however, being clearly distinguishable from such an one, the judgment of the circuit court must be affirmed.

From this opinion Justice Lockwood dissents.

Judgment affirmed.

       A sheriff may take a recognizance after indictment found, of a prisoner in his custody, although a writ has not issued from the circuit court commanding an arrest. Sloan et al. v. People, 23 Ill., 77.
      Where money is deposited with a sheriff as security for the appearance of a prisoner, who makes default, it is proper to treat the money as if it had been recovered on recognizance. County of Rock Island v. County of Mercer, 24 Ill., 35.
      See also Shattuck et al. v. The People, 4 Scam., 481. Besimer et al. v. The People, 15 Ill., 439.
      A recognizance taken before an officer not having judicial power, as the president of a town, is without binding force. Solomon v. The People, 15 Ill., 291.
      A recognizance is not vitiated because it is taken for a less sum than is indorsed on the writ. Chumasero v. The People, 18 Ill., 405.