text:
    Elisha B. Hitt, Appellant, v. Joseph W. Ormsbee et al., Appellees.
    APPEAL FBOM SCOTT.
    The admissions of one of several parties to a bill in chancery are not competent evidence against others, whose interests are adverse.
    Where a party is indebted, and makes ample provision for the payment of those debts, and in the meantime makes a provision for his family, his indebtedness does not afford evidence of a fraudulent intent.
    Hothing can be admitted, but everything must be proved against an infant.
    Hitt filed his bill in the Scott Circuit Court, to perfect his title to a lot of land, and to establish the right of Ormsbee to the lot, and to get possession of the land in his own right.
    Hitt sets out that in October, 1847, he recovered -a judgment at law, in the Scott Circuit Court, against Ormsbee, and sued out an execution, and levied upon and sold a house -and lot in Exeter, in said county, and purchased the same as the property of Ormsbee. In fifteen months after the sale the sheriff made a deed to Hitt, conveying to him all the right of Ormsbee to said premises.
    That the lot was purchased and paid for by Ormsbee in 1840, at which time he took possession, and built a house and made other improvements thereon, using his own funds in all instances for that purpose. That on the 30th of April, 1842, Ormsbee was in possession of said property, using it and claiming it as his own, and was in possession at the filing of the bill, which was in May, 1849, and that his debt to Hitt was contracted on 30th April, 1842, although the note sued on was not given for several months afterwards. It appears that when the lot was purchased, a deed was taken conveying the same in these words, “ grant, bargain, sell, and convey, and confirm unto the said Frances Heath, her heir Mary S. Heath, now the wife of J. W. Ormsbee, and the heirs of the said Mary S. by the said Ormsbee, forever.”
    It appeals that Frances Heath is the mother of Mary L. Heath, who is the wife of Ormsbee, and that she resides in Virginia, and never had possession of the land or the deed, or claimed any interest in the property.
    It is in proof that when Ormsbee purchased and paid for the property, that he admitted he was in debt in this state, and to persons in other states.
    It was proven by the defendant, Ormsbee, that at the time he purchased said property, and for some time afterwards, he was xeputed in this state to be unembarrassed, and to be worth two or three thousand dollars, and that this property was believed to be his. But none of the witnesses had any personal knowledge of his circumstances. It is in proof that a large debt for which he was liable as a member of a firm, has since been paid by the members of that firm, and that Ormsbee is insolvent, and that many of his debts are still unpaid.
    'The bill alleges that the purchase was for the benefit of Ormsbee, and that he procured the deed to be made as it was, to • defraud his creditors.
    Ormsbee and Frances Heath, by their answers, admit the truth of the charges in the bill, except the charge that the property was bought to defraud creditors. The answer states that Ormsbee bought the property for the benefit of his family, to save them from the extremity of bad fortune.
    Upon the hearing of the cause, Woodson, Judge, at Juno term, 1850, refused the relief prayed for and dismissed the bill.. Hitt appealed to this Court, and assigns, said decision for error.
    M. McCoknel, for Appellant.
    That as Ormsbee was in possession, and Mrs. Heath had no-right to it, the projjerty was subject to be sold to satisfy Ormsbee’s debts. The intention of Ormsbee in connection with the deed makes no difference whatever. That from the recording of the deed and the admissions of the answers, and the terms of the grant, it is clear that this is a conveyance in trust to the mother of Ormsbee's wife, &c., for his use, bought with his money, and that he would have the right to establish the title in him as the cestui qui trust, and if he could do so, his creditor having all his right, could do the same thing. Macubbin v. Cromwell, 7 Gill. & John., 157; Boyd v. McLane, 1 John., 582; Botsford v. Burr, 2 John., 409; Livingston v. Livingston, 2 John., 540.
    Ormsbee paid the money; the deed having been taken in the name of his mother-in-law, creates a resulting trust in Ormsbee, which interest is subject to execution. Perry v. Head, 1 A. K. Marshall, 47; 4 J. J. Marshall, 592; Elliott v. Armstrong, 2 Blackf., 198; Jennison v. Graves, 2 Blackf., 440; Doyle v. Sleeper, 1 Dana, 536; Hamson v. Battle, 1 Dev. Equity Rep., 537; Kellogg v. Wood, 4 Paige, 578; Ontario Bank v. Root, 3 Paige 478.
    D. A. Smith, for Appellees.
    The bill in this case assails the deed by Edwards for the benefit of Ormsbee’s wife and her heirs by his body, as actually fraudulent against his creditors. I submit that. as the debt was not contracted until some time after the execution of the deed, that the deed is a bona fide post nuptial settlement that cannot be called in question by Hitt as a subsequent creditor. 1 American Leading Cases, pp. 40 to 46, 55, 56; 1 Story’s Eq. Juris., sections 855 to 865 inclusive.
   Caton, J.

J. The admissions of Ormsbee, as testified to by the witnesses, are not competent evidence against the other defendants. In contemplation of law, at least, his interests were adverse to theirs. It does not appear that those admissions were made at a time when it was against his interest to make them, even if that would render them competent. The only indebtedness proved against Ormsbee, at the time he purchased the premises in question, except by such admissions, was his indebtedness as a member of the late firm of McConnel, Ormsbee, & Co. Although his legal liability for those debts still continued, those liabilities were provided for by the undertaking of the other members of the firm to pay them. In pursuance of that undertaking they have since been paid. Ho doubt has been suggested of the entire responsibility of the other members of the firm, to fulfil that undertaking, and the result shows, that that provision was amply sufficient. Ho doubt that he considered at the time, and such appears to have been the fact, that those debts were as amply provided for, as if they had been secured by a mortgage. It, then, could not have been in his contemplation, at the time he made this provision for his family, to defraud those creditors, any more than as if those debts bad been secured by a mortgage ; and the rule seems to be well settled, that where debts are thus secured, they do not afford evidence of a fraudulent intent.

As to the infant defendant, the case is still more defectively made out. As to him, nothing can be admitted, but everything must be proved. Beyond the admissions of the answers, there is no evidence that the premises were purchased with the funds of Ormsbee. As to the infant, there is no evidence of the judgment against Ormsbee, or of the subsequent proceedings under which the complainant claims title. Except by the admissions contained in the answers of Ormsbee and Heath, there is not the shadow of a case made out.

The decree of the Circuit Court dismissing the bill was proper, and it must be affirmed, with costs.

Judgment affirmed.


source: Caselaw Access Project

author: Trumbull, J.

license: Public Domain

text:
    William Hodson et al., Appellants, v. Murray McConnel, Appellee.
    APPEAL FROM MORGAN".
    Where an appeal is allowed to sereral defendants, and there is a joinder in the errors assigned by all, it is too late for the appellee to urge the objection, that only -a part of the defendants haVE appealed.
    If a judgment is obtained in the name of one party, but for the use of another, the judgment debtor cannot be garnisheed, nor can the interest of the equitable owner of the judgment be defeated by such proceeding.
    A defendant being notified that a judgment against him belongs to a person other than the plaintiff on the record, he is as much bound by the notice, as if the record stated the judgment to be for the use of such person.
    In June, 1844, McConnel obtained judgment in the Morgan Circuit Court against Hodson, upon which execution was issued and returned no property found. In March, 1849, McConnel filed the requisite affidavit, and obtained an order for summons against R. & J. McDonald as garnishees. In March, 1849, a judgment was entered in the same Court in the name of Hodson against the McDonalds. The proceeding of McConnel was for the purpose of obtaining a judgment against the McDonalds, as garnishees, for the amount of the judgment against them in favor of Hodson. In November, 1849, the McDonalds and Hodson filed their answers in the premises, which are in substance, that several years before that time, the McDonalds became indebted to Hodson, and gave him a note, upon which the judgment in Ms favor was rendered. That before suit was brought against them on the note, it was sold, in payment of a liability of said Hodson, and was delivered to an attorney and held by Mm for the use of the persons in whose favor the liability existed, of which the McDonalds had notice, and that they paid said judgment to said attorney, and that they supposed that satisfaction of the judgment had been regularly entered. That said judgment was satisfied by a new note given to a third party. That the McDonalds had been informed when they gave the second note, that McConnel had obtained an order for garnishee process against them, but did not know the process had been issued, until it was served.
    Upon this answer, McConnel moved for a judgment against the garnishees, and at March term, 1850, Woodson, Judge, presiding, a judgment was rendered in favor of McConnel against the McDonalds, for the amount of the judgment against them in favor of Hodson, and judgment given against Hodson for the costs arising out of the garnishee proceeding. The present appellants excepted, and bring the cause to this Court. The McDonalds did not join with Hodson in the appeal bond. The appellants assign for error, the rendition of the judgment against the McDonalds upon their answers, no issue having been made upon the facts stated in them.
    William Thomas, for Appellants.
    That by the 12th section of the attachment law, R. S., p. 307, it was the right of the appellees, to appear and answer on oath, &c., and upon filing the answer by the garnishees, they should have been discharged from further proceedings; unless the plaintiff alleged that the garnishees had not answered fully, in which case, the Court should have directed an issue, to be tried by a jury, as provided by the 19th section of the attachment law.
    The answers in this case show, that Hodson had parted with his rights and interest in the judgment against the McDonalds, long before the garnishee proceeding wras commenced, and there being no allegation of fraud, the judgment of the Circuit Court should have been for the defendants. Stockton v. Hall, Hardin’s Rep., 160; Keegin v. Dawson, 1 Gilman, 89.
    Hpon the merits and facts of the case, the only question for the decision of the Court, is, with reference to the facts; was Hodson entitled to the money on the judgment against the McDonalds, at the time they were served with notice as garnishees? And with reference to the law, will the Court compel the garnishees to pay money, which it appears, does not belong to the debtor? Dix et al. v. Cobb, 4 Mass., 510; Cushing’s Trustee Process, 73, 74.
    M. McConnel, pro se.

    The McDonalds, who are the real parties in interest, have not joined in the appeal, and are not complaining of the judgment.
    Hodson was not summoned in the case and is a mere volunteer, and is not authorized to defend in the Court below, or to appeal to this Court. It is apparent that his debt to appellee has not been paid, and that is the only question he can make; he cannot assign for error the judgment against the garnishees, the judgment against them in his favor, being applied to pay his debt.
    It appears affirmatively, that the judgment against the,garnishees, was in favor of Hodson, and not of any other person, which fact being a matter of record, cannot in a proceeding at law be denied, by going behind the judgment, and showing that it was for the use of another.
   Trumbull, J.

This was a garnishee proceeding, instituted by McConnel, under E. S., ch. 57, §38, against John and Eichard McDonald, as debtors of William Hodson.

The Circuit Court gave judgment against the McDonalds for the sum due from them to Hodson, and against Hodson for costs.

It was objected, upon the argument, that Hodson alone had appealed, and that he could not be permitted to assign errors in the judgment against the McDonalds.

In point of fact, an appeal was allowed to all the defendants in the Court below, and they have all united in the assignment . of errors, to which there is a joinder in error. After this, it is too late for the appellee to insist that only a part of the defendants below had appealed, and it is wholly immaterial, whether Hodson has a right to complain of the judgment against the McDonalds. They certainly have that right, and have availed themselves of it.

The record shows, that the note upon which the judgment in favor of Hodson against the McDonalds was obtained, did not belong to him, but to the heirs of one Swain, for some of whom he was guardian, and to all of whom he was indebted, and that it was delivered to the attorney -who brought suit upon it, to collect for their benefit. Hodson had, therefore, no real interest in the judgment, although it was in his favor, as it had to be, the note never having been assigned. The fact that the record did not state that the judgment was for the use of the heirs of Swain, does not alter the case. The object of making such a statement upon the record, is, to notify the defendant and third persons who the real party in interest is, so that his rights may not be prejudiced by any transaction with the nominal plaintiff. If a defendant has notice that a judgment against him belongs to a person other than the plaintiff upon the record, he is as » much bound by such notice, as if the record stated the judgment to be for the use of such other person.

In this case, the record shows that the McDonalds were informed of the transfer of the note, and that Hodson had no interest in it, before suit upon it was commenced.

The doctrine is well settled, that courts of law will notice and protect the interests of the equitable owners of choses in action, and particularly so, in the matter of a garnishee proceeding, which is of an equitable character.

According to the answers of the garnishees and the admissions of the parties, contained in the record, it is manifest that Hodson was not entitled to the benefit of the judgment in his favor, consequently his creditor, McOonnel, could have no claim upon it.

Judgment reversed.


author: Caton, J. Trumbull, J.,

text:
    John A. Chesnut, Appellant, v. Ebenezer Marsh, Appellee.
    APPEAL FROM MACOUPIFT.
    A judgment under which lands are sold for the payment of taxes, is good, if it contain the substance of the form required by statute.
    A judgment rendered by a Court having full j urisdiction, is obligatory until reversed, though such judgment may be irregular and erroneous.
    In a collateral proceeding, a judgment for the sale of lands for the payment of taxes, cannot be impeached because the same judgment is against the owners of the land ; the latter part will be regarded as surplusage.
    This was an action of ejectment brought by Chesnut against Marsh in the Macoupin Circuit Court, at September term, 1848, to recover possession of the east half of the south-west quarter of section 21, in town 10, range 7, west of the third principal meridian.
    The title of Chesnut was derived from a sale of the land for taxes. The only question decided by the Court, was as to the sufficiency of the judgment ordering the sale of the lands; and this judgment is sufficiently set out in the opinion of the Court.
    The cause was heard before Woodson, Judge, and a jury, at October term, 1850.

      On the hearing of the cause in the Circuit Court, the Judge excluded the j udgment for taxes, referred to in the opinion, ordering the sale of the lands in controversy, which was rendered in 1839, and the other proofs offered by the appellant. The exclusion of these proofs is assigned for error. Chesnut appealed.
    E. S. Blackwell, for Appellant.
    1. The Circuit Courts of this State, in the exercise of the judicial power conferred upon them by the revenue law of 1839, are not to be regarded, quo ad hoc, as Courts of special jurisdiction, within the meaning of the rule, requiring the records of such Courts to show affirmatively that all of their proceedings are strictly in accordance with the statute giving the power. The Circuit Courts, before this additional jurisdiction was conferred upon them, were Courts of Eecord, possessing a general jurisdiction, having a public seal, established terms, organized process, a permanent location, judicial and executive officers, and their functions do not cease on the execution of a particular power. Mo change has been made in the organization or character of the Courts by the revenue laws. But they exercise a general jurisdiction, under a public statute, and are to be regarded in all respects as Superior Courts without limitation, as to the subject matter or mode in which they are to exercise their authority. When therefore their jurisdiction appears, the same liberal intendments are to be made in support of a judgment under the revenue law, as in the judgments of the Circuit Courts, rendered in the due course of the common law. Doe ex dem, Obert v. Hammel, 3 Harrison N. J. R., 73; Kempe v. Kennedy, 2 U. S. Cond. Rep., 223; Raymond v. Bell, 18 Conn., 87-9; Gregnoir v. Astor, 2 Howard U. S. R., 319.
    But if the Circuit Courts, in the exercise of this power, act as Courts of special and limited jurisdiction, as laid down in Thatcher v. Powell, 6 Whea., 119, still those Courts, following this rule, have repeatedly decided, that if the record shows jurisdiction in the Court, then, however erroneous their proceedings may be, their judgments cannot be impeached in a collateral action, but are regarded as conclusive upon parties and privies, until reversed upon writ of error or appeal. Voorhees v. U. S. Bank, 10 Peters, 449; Thompson v. Tolmie, 2 Peters, 157; Weyer v.
      Zane, 1 Ohio Cond. Rep., 589; Adams v. Jeffries, 12 Ohio, 272; Young v. Lorrain, 11 Ill., 636-9; Wyman v. Campbell, 6 Porter, 236-243; Doe v. Wise, 5 Blackf., 402; M’Ilvoy v. Speed, 4 Bibb, 85; Fridge v. Slate, 3 Gil. and John., 103; Van Wormer v. Mayor of Albany, 15 Wend., 262; Paine v Moreland, 15 Ohio, 444-5.
    The Court in this case had jurisdiction.
    This Court will presume that the collector did his duty in making his report. Taylor v. People, 7 Ill., 349, (2 Gil.)
    And the record recites the notice required by law. This recital is prima facie evidence that notice was given. Rust v. Frothingham, 1 Ill., 258, (Breese;) Banber v. Winslow, 12 Wend., 102.
    The judgment is not regular, and could have been reversed upon writ of error. But the substantial requirements of the statute are recited in the judgment, and appear to have been complied with, and the judgment cannot be impeached collaterally. Swiggert v. Harber, 5 Ill., 371; Rigg v. Cook, 9 Ill., 348-9; Atkins v. Hammin, 7 Ill., 450; Laws 1838-9, p. 14, § 30.
    Billings & Parsons, for Appellee.
    1. It is a well settled principle, that in an action of ejectment to recover possession of land, purchased at a sheriff’s sale for taxes, the plaintiff, before he can introduce the sheriff’s deed in evidence, must first exhibit a valid judgment against the land. Atkins v. Hinman, 2 Gil., 437.
    2. Judgments are the sentence of the law, pronounced by the Court upon the matters contained in the record. 3 Blackstone’s Com., 395.
    A judgment, though pronounced by the Judge, is not his determination, but the determination and sentence of the law. Tested by this rule, the judgment attempted to be rendered in this case, is void. Laws 1839, § 26, 29, and 30.
    Where a summary remedy is given by statute, a person seeking to avail himself of it, must be confined strictly to its provisions, and shall take nothing by intendment. Logwood v. Planters’ Bank, 1 Minor, 25; Bates v. Planters’ and Merchants’ Bank, 8 Porter, 100; Roberts v. State Bank, 9 Porter, 317; 6 Blackf., 37; 7 Hill, 25; 1 Greene, 306; 4 Halsted, 20.

      3. As to what are voidable, and what void judgments. Buckmaster v. Carlin, 3 Scam., 106; Ellicottt et al., v. Piersol, 1 Peters, 340; Thompson v. Tolmie, 2 ibid, 162; Swiggart v. Harber, 4 Scam., 371; Woodruff v. Taylor, 20 Vt., 76; Bradstreet v. Neptune Ins. Co., 3 Sumner, 607, Sanford v. Dick, 17 Conn., 216; Anderson v. Miller, 4 Black., 419; Miller v Bartoloo, 3 Eng., (Ark.,) 321.
   Caton, J.

In this case we are only called upon to decide upon the effect of the judgment, under which the premises in question were sold, for the non-payment of taxes. That the Court hafd jurisdiction, there is no doubt. It is not disputed, that the exigencies are shown to have existed, which called upon the Court to act, to adjudicate, and to procceed to render a judgment. The rule of law is well settled, that when a judgment is rendered by a Court thus possessing jurisdiction, although the judgment may be irregular and erroneous, it is obligatory until reversed. Young v. Lorraine, 11 Ill, 624. This principle is applicable to the case before us, for although the statute authorizes a judgment for taxes, in effect to be defeated by the proof of certain facts in a collateral action ; as no attempt is made to prove any of those facts, that provision of the statute has no application, as we will hereafter attempt to show.

The only question then would seem to be, is this such a judgment as the Court had authority to render ? The statute prescribes a form for these judgments, which form is directed to be adopted as near as the nature of the case will permit. This form contains certain recitals, after which follows the judgment of the Court, which is in favor of the State and against the several tracts of land contained in the previous recitals, for the taxes, interest and costs due severally thereon, concluding with an order, that they be sold to pay the same. The recitals in this order set forth in detail the matters, the substance of which is only required to be recited in the statutory form. After the recitals, follows a judgment against the several owners of the different tracts in favor of the State of Illinois, for the amount of taxes, interest and costs due upon each tract; and it is further considered and adjudged, that each of said lots of land, or so much thereof as will be sufficient to satisfy and pay the judgment, be sold; and this judgment is to be entered as a several judgment against the owners of each lot of land, described in the report and list, and the land itself, for the taxes, interest and costs due upon the same.

All of that part of this order, which professes to render a judgment against the owners of the land, is void, for in this proceeding the Court has no authority to render a personal judgment. The whole proceeding is against the land itself. But the order does not stop with the judgment against the owners. A judgment is also rendered against the land itself. The order, in fact, contains two judgments, for the same demand and for the same amount—-the one against the owners, and the other against the lands. The first was without authority; the other was what the Court was authorized and required to do. We do not think that the judgment, which was rendered against the land by authority of law was made void, because in the same order is contained a judgment against the owners, which was rendered in the exercise of an usurped authority. This latter was as void and harmless as if it had never been written. In this collateral proceeding, at least, that part of the order may be treated as surplusage. It being utterly harmless, as against the party, he ought not to claim a benefit from it, by insisting, that it vitiated that which was done by the Court within the pale of its authority, and which was otherwise obligatory.

Some question was made upon the argument, whether any judgment was in fact rendered against the land, because the technical words of a judgment are not used in its condemnation, and because the verb is placed in the infinitive instead of the indicative mood. This, however, we think, is but a cavil about terms.

After a judgment is rendered against the owners of the land, the order declares that “ this judgment is to be entered against the land itself, for the taxes, interests and costs due upon the same.” The intention and understanding of the Court in using these words—admitting that the form of expression is that of the Court instead of the clerk—cannot be doubted. The idea intended to be expressed, and which is unavoidably understood, is, that by that order of the Court a judgment was rendered against the land. We cannot avoid this understanding, any more than as if the most technical language had been employed in rendering the judgment against the land. Bad grammar does not vitiate. But by supplying a word which may be fairly understood,- even this objection to understanding this order as final, is obviated. Read the expression: “ This judgment is to be considered as entered, as a several judgment against,” &c.; and all idea of a subsequent order, to make-the judgment final and complete, at once disappears. We do not understand, and are not willing to hold, that a judgment is void, because the technical language of approved forms, is not used in expressing it. A judgment, like all other writings, is designed to convey ideas, and consists in the ideas conveyed, and when those ideas are so expressed as to be clearly understood, we are not at liberty to say there is no judgment, because the same ideas were not expressed in more technical or grammatical language.

Rejecting, then, as surplusage, that part of this order which pretends to render a personal judgment against the owners of the land, and we have left all of the substance of the judgment, which the statute requires to be entered up in such a case, although the precise form given in the statute is not used. And now we will inquire whether that precise form was indispensable.

After giving the form, the statute declares: “ The form, as herein before set forth, shall be pursued as near as the nature of the case will permit.” It is not pretended that the Circuit Court supposed, that this departure from the form given, was rendered necessary, by anything peculiar in the nature of the case.

It is a well settled rule of the common law, that neither irregularity nor informality will render a judgment void. Egarton v. Hart, 8 Verm., 208. Our legislature has afforded a most conclusive reason for determining, that want of form shall not vitiate judgments, rendered in favor of the State for taxes due her, any more than in an ordinary case between individuals. The 12th section of the statute of jeofails, which is as follows: This chapter shall extend to all suits in any Court of record, for the recovery of any debt due the State, or any duty or revenue thereto belonging, and also to all writs of mandamus and informations of the nature of quo warranto and proceédings thereon.” This judgment was rendered in a suit for the recovery of revenue due .the State, and is necessarily included in the express provisions .of this statute. And there is a fitness and propriety, too, in -providing, that the interests of the State, in suits affecting her pecuniarily, should not suffer, for the want or lack of form, any more than the rights of parties, in suits between individuals. To suppose otherwise, would be opposed to all the well known instincts of legislative bodies.

Should we hold that a departure from the prescribed form renders the judgment in this proceeding a nullity, we should have to carry the same principle into other proceedings, the forms of which are prescribed by the legislature. It would be difficult to contemplate the extent of the mischief which would result from such a rule. The statutes abound in forms, which are prescribed as peremptorily as is the form of this judgment, a departure from which, has never been held to vitiate the proceeding. We will only advert to the statute concerning justices of the peace and constables. That statute, creates an inferior jurisdiction, in whose favor no presumptions are indulged, and where a strict conformity to the law conferring the jurisdiction is required. In that statute, the form of the 'summons, and of the warrant to hold to bail, and of the subpoena for witnesses, is given and required to be used in precisely the same language, by which the Court is directed to enter the judgment, in the form given in the statute under consideration. It has never been contended, and probably never will be, that a departure from those forms, if the substance is expressed in those writs, would render the proceeding before the justice utterly void and him a trespasser. In the same statute, and in still more positive language, is the form of the venire for jurors given. The 45th section says: “ The following shall be the form of the writ , for summoning jurors, vizAlthough there is no latitude given for a particle of variation from the form, yet we do not think a juror would be at liberty to disobey the mandates of the writ, substantially the same as that given in the statute, but varient in form. In these laws the legislature never intended to prescribe an iron, unyielding rule, any deviation from which, would break the law. We think it cannot be maintained, that the form of the judgment given here is of the essence of the law. The substance of the statute is, that the order of the Court shall show that certain preliminary steps have been taken, and that a judgment shall be rendered in favor of the State against the land for thé amount of the taxes, interest and costs due the State, and that the land be ordered to be sold to pay the same. When the judgment, as in this case, contains these essential elements, we cannot say that it is a nullity, however improper and unadvised it may be to depart from the prescribed form.

But, on this subject, we are not without authority directly in point, in our own Court. In Atkins v. Hinman, 2 Gil., 437, the judgment omitted the following important words, which are contained in the statutory form, to wit: “That the taxes thereon remained due and unpaid on the day of the date of the said collector’s return.” The report of the collector, which showed the non-payment of the taxes, being copied into the judgment, was held sufficient evidence of that fact, without the recital required by the form. Another omission was, that the day on which the collector had made his return was not inserted, and that was held not to be fatal, inasmuch as that fact could be ascertained by reference to the files of the Court. Some matters were also inserted in that 'judgment, not required by the form, but the objection on that account was not sustained. On the subject of the departure from the given form, the Court said: “The omissions and variations in the judgment are merely in matters of form, and evidently clerical mistakes, which ought not to vitiate the judgment, especially when it is apparent from the face of the proceeding, that the Court had jurisdiction of the subject matter, and proceeded to make the proper adjudication.” It is not to be denied, that so far as the essentials of the judgment required by the statute are concerned, there were more omissions in that judgment, thanhn the one before us, and the case establishes beyond controversy, that it is not indispensable to pursue the form given in the statute.

The case of Hinman v. Pope, previously decided in 1 Gilman, 131, in nowise conflicts wich the view we have taken. One of the questions decided in that case was, as to the validity of the precept or process issued to the collector, and upon which the sales were made. By the statute, the clerk was required to make out and deliver to the collector a certified copy of the collector’s report, together with the order of the Court thereon, which should constitute the process on which all lands should be sold for taxes. In that case, no such paper, either in form or substance, had been furnished by the clerk.. On the contrary, he issued an order on his own responsibility, commanding the collector to make the sale, without any intimation that it was issued in obedience to an order of the Court, or that the Court had ever entered any judgment against the land, or that even the subject matter had ever been before the Court in any way. Upon its face the paper was void. It was neither a good common law execution, nor such a process as the statute required. The Court said: “ The paper offered in evidence was not such process, either in form or substance, as is required to be issued by the 31st section, and was consequently void. It does not recite that any judgment has ever been rendered by the Court. It is a mere mandate of the clerk, to sell certain lands for taxes, to be found in a collector’s list, appended to the paper. An execution to be valid must show on its face, that such a judgment has been rendered by a competent Court as will justify its emanation.” Here we see the defect was of a substantial and not of a formal character. That case was not put upon the ground, that the process Avas issued in a special proceeding, which required greater strictness than in the exercise of a common law jurisdiction, but the process Avas held to be void, because it would have been void in a common laAV proceeding.

As the question is now presented, the validity or effect of this judgment is in nowise impaired, for the reason that it is not clothed Avith the same conclusive attributes, which attach to an ■ordinary judgment. The statute, it is true, allows it to be attacked collaterally, or rather allows the title acquired under the sale to be defeated, by proving any one of four specified things, to wit: “Either that the said land Avas not subject to taxation at the date of the sale; that the taxes had been paid; that the land had never been listed or assessed for taxation ; or, that the same had been redeemed. By proving either of the three first, an attack is made upon the judgment itself, and by the last, the tax title is defeated by something subsequent to the judgment. In this case, no question arises under these provisions of the statute. • Ho attempt has been made to impair the effect of the judgment, in any mode authorized by laAV. Except it be attacked in the mode thus authorized, it is as conclusive as if no provision had been made authorizing it to be questioned collaterally. There is no difference between prima facie and conclusive evidence, where there is nb rebutting or countervailing testimony adduced. There can be no pretence here, that the judgment, as against the lands, does not prove what it purports to establish, but the complaint is that there is no such judgment. Ve, however, think otherwise. We are of opinion, that this order of the Court shows all the facts, which the statute requires should he shown by the judgment, and that it does contain a judgment, in favor of the State, against the lands for the proper -amount, to satisfy which the lands are ordered to be sold. That the order also contains a separate personal judgment against the owners of the lands, may he admitted: but, as the right now claimed does not at all depend upon that part of the order, we entertain no doubt that it may, in this action, be rejected as surplusage, and that it does not render void that part of' the order which is otherwise valid. What effect it would have, were the question raised directly by writ of error or appeal, we express no opinion.

Let the judgment be reversed and the cause remanded.

Judgment reversed.

Trumbull, J.,

dissenting. I cannot assent to the foregoing decision.

The judgment offered in evidence is, according to my understanding, simply a judgment in personam against the owners of the lands, and not a judgment against the lands themselves, which alone the Court had jurisdiction to render. It reads as follows; “ It is considered and adjudged by the Corad, that the State of Illinois do severally recover of the. several owners of the lands, described in the report and list aforesaid, the taxes due upon each of said lots of land, being the same set down in figures opposite to each lot of land, together with the interests and costs due thereon, and the costs of this proceeding; and it is further considered and adjudged, that each of said lots of land, described in the list aforesaid, or so much thereof as will be sufficient, be sold, to satisfy and pay this judgment and the costs of sale, and this judgment is to he entered as a several judgment against the owner of each lot of land, described in the report and list, and the land itself, for the taxes, interest and costs due upon the same.”

The judgment against the owners of the lands is confessedly void, for the reason that the Court had no jurisdiction over their persons, and we look in vain into this order for any other judgment than the one against the owners. It is true, that the order contains a direction for the entry of a several judgment against-the land itself, but where is that judgment ? Surely not in this order, unless the direction to enter a judgment and the entry of it mean one and the same thing—a proposition to which I cannot assent.

But if it were admitted, that the direction to enter judgment against the land itself for the taxes, interest and costs due upon the same”—which is all that is left of the order after striking out that part which refers to the personal judgment—was equivalent to the entry of such a judgment, I still think the judgment would be void. It would not conform even substantially to the form of the judgment required by statute, and would be uncertain both as to what land it was against, and for what amount of taxes, as it would contain no reference to the reported list from which those facts could be ascertained, and if it did, the judgment would not be for the amount of tax there reported, but for the amount due, whether reported or not. Such a judgment would be void for uncertainty.

The legislature, in conferring jurisdiction upon the Courts, to enter judgments against delinquent lands, has prescribed the form of such judgments, and required the Courts to pursue it, as near as the nature of the case will admit. This requirement of the law, was wholly disregarded in the entry of the judgment under consideration. It is admitted, that the form of the judgment, without anything in the nature of the case to require it, is wholly.varient from the one prescribed by statute. In my opinion, the Court was as much bound to comply substantially with the requirement of the law, prescribing the form of the judgment, as in any other particular. I think the Circuit Court decided rightly, in excluding the judgment from the consideration of the jury.


author: Treat, C. J.

text:
    David A. Smith et al., Assignees, &c., Pltffs, v. James Dunlap, Deft.
    AGREED CASE FROM SANGAMON.
    There is a wide difference between a note for the payment of a certain sum, winch may be discharged by the maker, on the day it matures, by an equal amount of state indebtedness, and a note for the payment of a certain amount in state indebtedness. In the former case, if the maker neglects to pay the note at maturity in the manner specified, he is liable to pay in specie the whole amount of the note. In the latter case, he is only liable for the value of the state indebtedness at the time of the maturity of the note.
    Where a promisor undertakes to pay a certain number of dollars in specific articles, he must deliver the articles on the day named, or he will be hound to pay the sum stated, in money. But if he agrees to pay in bank notes or other evidences of indebtedness, purporting to be and which can be counted as dollars, he must pay the number of dollars named, of the securities described, in default of which, he is responsible only for their real value.
    The measure of damages, in the case of a breach of contract, for the sale of a chattel, is the cash value of the article at the time it should have been delivered.'
    This suit was presented for tlie consideration of this Court, upon an agreed case, stating that on the 20th day of February, 1843, Dunlap made his note for payment to the Bank of Illinois, for the sum of $131,480 52, in state of Illinois indebtedness, which matured and became due on the 20th day of April, 1843, and is unpaid. On the 10th of April, 1845, the officers of said Bank, pursuant to an act of the legislature, entitled “An act supplemental to an act to reduce the public debt one million of dollars, and to put the Bank of Illinois into liquidation,” in force, February 28, 1845, under their corporate seal and the signature of their President (the said defendant) and Cashier, assigned said note as a stock note to John J. Hardin and Samuel Dunlap, since deceased, as assignees of said Bank, and that the said plaintiffs are successors in office of said deceased, and entitled to a judgment or decree, (if this Court has chancery jurisdiction of this case,) as assignees as aforesaid, for anything legally due and recoverable in the ¡memises. At the maturity of said note, the marketable value of Illinois state indebtedness was twenty cents to the dollar, including interest in arrear on the same, and the value of notes of said Bank was about thirty seven cents to the dollar, and the value of certificates of said bank was about eighteen cents to the dollar. Since the maturity of said note, the highest and present marketable value of Illinois state indebtedness, has been, and is, Canal bonds issued before date of said note, including interest in arrear, is about thirty cents to the dollar, and Internal Improvement bonds issued since said note became due, including interest in arrear, is about forty-two cents to the dollar, the present value of notes and certificates of said Bank is about forty to forty-three cents to the dollar.
    The question submitted to the Court was: what were the said plaintiffs entitled to have a judgment or decree for, if the Court has chancery jurisdiction in the case, this Court to render such final judgment or decree in the premises, as should seem meet.
    The cause was heard upon a like agreed case, before Davis, Judge, at December term, 1850, of the Sangamon Circuit Court, who rendered judgment for the plaintiffs for the sum of $38,361 93.
    Williams & Lawrence, who appeared for the creditors of the Bank of Illinois, made the following points:
    Where, in a special verdict, the essential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, the Court will not render a judgment upon such an imperfect general verdict, but will remand the cause to the Court below, with directions to award a venire facias de novo. Barnes et al. v. Williams, 6 Pet. Cond. R., 369; Bellows v. President of Hallowell and Augusta Bank, 2 Mason, 31.
    The agreement in this case stands in the place of a special verdict, and if the facts are so imperfectly stated that the Court cannot render judgment according to the substantial merits of the case, then the parties should be required to make a more perfect statement, or the case should be dismissed without prejudice to either party.
    If this is a stock note, and the term stock note has any meaning, then it stands in the place of $131,480 52, which the charter of the bank required to be paid into the bank in gold and silver coin, as the basis of its promises to pay, and the only security which the creditors of the bank had, for the payment of its debts. G-ale’s Stat. p. 99, §2 and 3, p. 102, §8, p. 103, §8, p. 107, §1, p. 108, §6; Acts of 1842, p. 21, and Acts of 1845, p. 247, §9.
    Lincoln & Herndon, for Pltff.

      The measure of damages for not paying stock according to contract, is the value at the time it should have been returned, or at the time of the trial, at the option of the payee. 19 Conn., 212; 2 Gfreenleaf’s Ev., §261; 2 Comstock, 443; 2 East. 211; 11 Eng. Com. Law, 436.
    Where a note is payable in State Bank paper, it should be paid in State Bank paper at its real value, and not at its nominal value. 4 Ohio Oond., 222.
    Our statute, allowing debtors to pay the bank in State Bank paper, either before or after the commencement- of the suit, has no reference to stockholders. They are not entitled to its benefits. Statutes 1842-3, page 21; 5 Sm. & Marshall, 428.
    Browning & Bushnell, on same side.
    We insist, that tins was not a note for the delivery of state indebtedness, nor for the payment of state indebtedness at its nominal value, but that it was a note for the payment of money; that the s.um mentioned in the note was the value received, and which was to be re-paid; that Dunlap had, by the pontract, the privilege of paying that amount in state bonds, at their actual marketable value, at the time the note fell due, but in default .thereof, he become liable to pay in money, the face of the note and interest.
    The note imports value; Dunlap, therefore, retains in his hands the money of the plaintiff. The Illinois state indebtedness has been paid for in advance, and the rule of damages above adverted to, always applies in cases of notes payable for a specific sum in goods or other personal property.
    In an ordinary contract for the sale and delivery of goods, the measure of damages depends upon whether the goods have been paid for in advance or not. Where no money has been paid, the measure of .damages is the value of the article at the time and place of delivery. 1 Greenleaf’s Ev., §261; Gainsford v. Carroll, 2 B. & C., 624; (9 E. C. L., 204;) Boorman v. Nash, 9 B. & C., 145; (17 E. C. L., 344;) Shaw v. Nudd, 8 Pick., 9; Swift v. Barnes, 16 Pick., 194, 196; Shepherd v. Hampton, 4 Cond. R., 233; Douglass v. McAlister, 3 Cranch, 298; Dey v. Dox, 9 Wend., 129; Davis v. Shields, 24 Wend., 322.
    But where the goods have been paid for in advance, the plaintiff may recover the highest price of the goods at any time between the time fixed for the delivery and the time of the trial. West v. Wentworth, 3 Cow., 82; Clark v. Pinney, 7 Cow., 681; Chitty on Contracts, 352 note 2; Baker v. Wheeler, 8 Wend., 505; Shepherd v. Hampton, 4 Cond. R., 233; Williamson v. Dillon, 1 Har. & Gill., 444, 463-4; Commercial Bank v. Korlwright, 22 Wend., 348, 366-7. And the same principle is always applied to the cases of contracts for the delivery of stocks. Shepherd v. Johnson, 2 East., 211; McArthur v. Seaforth, 2 Taunt., 257; Harrison v. Harrison, 11 E. C. L., 436; Downs v. Bash, 2 E. C. L., 407; Commercial Bank v. Korlwright, 22 Wend., 348, 366-7; West v. Pritchard, 19 Conn., 212; Wilson v. Little, 2 Comstock, 443.
    Massachusetts seems to be an exception to the general rule; there, there seems to be no distinction taken, between pre-payment and non-payment. But the Courts there admit that this is not in accordance with the general rule, but have adopted it for convenience and uniformity. Sargent v. Franklin, 8 Pick., 90.
    But this is not an ordinary contract for the delivery of goods. It is a note for money payable in goods of a particular description. The payor may pay in goods at his option when the note becomes due, if he fails to do so, it becomes an absolute note for money; and the sum mentioned in it, and the interest, is the measure of damages. The sum specified in the note is considered the value of the consideration. Brooks v. Hubbard, 3 Conn., 58; Smith v. Smith, 2 John., 235; Gleason v. Pinney, 5 Wend., 393-4 & 5; Gleason v. Pinney, 5 Cow., 152, 411; Harrison v. Wells, 12 Verm., 505, 509; Cowner v. Graham, 1 Ohio, 150, 160. There is a great difference in the construction of the contract, between a contract for the payment of dollars in property, and a contract for the delivery of property. 5 Wend., 401-2. The stipulation to pay in property is for the benefit of the payor; if he does not avail himself of it, he must pay in money. Chipman on Cont., 34-5, 32.
    This express point has been decided, in the case of a note payable in so much money in certain bank notes, must be paid in the amount specified in the note in money. Edwards v. Morris, 1 and 4 Ohio, 222.
    Bank bills pass under a bequest of money; stocks, or other securities for money, do not. Mann v. Mann, 1 John. Ch., 231, 236; Dowson v. Garkoin, 2 Keen, 14; 2 Williams Ex., 861-2; Holham v. Sutton, 15 Ves., 327. Nor does a legacy of “stock” fall within the head of “pecuniary legacies.” Douglass v. Congreve, 1 Keen, 410, 424. Stocks are always treated as property, subject to the same rules and incidents of other choses in action or personal property—they are “goods, wares and merchandise,” they pass, and pass only by devise, assignment, and like other personal property or choses in action. Trisdale v. Harris, 20 Pick., 9, 12, 13, 14; Gray v. Portland, 3 Mass., 389; Sargent v. Franklin, 8 Pick., 90, 95; Jumel v. Marble Head Social Ins. Co., 10 Mass., 476, 482. They could not be, nor are they taxed as “money,” but as “public stocks.” R. S., 1845, p. 436, §3.
    Bank bills, on the contrary, pass by delivery as money, without assignment or formality. They are not to be compared with stocks. They are totally dissimilar in constitution, object and use. Stocks may assume the form of personal property, or of securities for money; in whichever form, they are wholly unlike bank bills or bills of credit, which are money, in common parlance, in contracts, and in legal contemplation. The two are not to be compared in legal reasoning, and every analogy drawn from the comparison of things so dissimilar is false, and the conclusion equally so. Wherever it became necessary, the Courts have always carefully distinguished between them. Miller v. Race, 1 Burr, 452, (top p., 173;) Craig v. State of Missouri, 4 Pet., 410, 431-2; Angell & Ames on Corp., 500-1 and note.
    And in all the reasoning of the Courts, on the question of damages on the breach of stock contracts, the Courts have always treated such contracts as subject to the same considerations, as other contracts relating to the sale, payment, or delivery of other articles of personal ¡eroperty. Sedgwick on Damages, 276; Sargeant v. Franklin, 8 Pick., 90, 100; Gray v Portland Bank, 3 Mass., 364, 390; See English Stock Cases before cited.
    Treating this, then, as a note for money payable in other commodities, it should have been paid in those commodities when due. Dunlap not having availed himself of this privilege, the note has now become absolute for the note and interest.
    On the other hand, treating the note as a contract for the delivery of stock, a failure to comply with the contract on the part of Dunlap, authorizes the plaintiff to rescind the contract and to recover back the original consideration of the note.

      The note is prima facie evidence of a consideration equal to the sum expressed in it. It is an acknowledgment of a debt due to that amount, and this prima facie indebtedness can be recovered back in an action for money had and received, or in an action on the contract itself. Smith v. Smith, 2 John., 240; Brooks v. Hubbard, 3 Conn., 62; Pinney v. Gleason, 5 Wend., 400, 403; Bush v. Canfield, 2 Conn., 485; Clark v. Pinney, 7 Cow., 681; Stephens v. Syford, 7 N. H., 360, 364; Sedgwick on Dam., 273, 276.
    The law requires the assignment to trustees of the property and effects of the bank. Stock notes were to be collected only on certain contingencies. In performing their duties under the law, it was proper and even necessary for the officers making the assignment, to designate the stock notes for the information of the assignees. A mistake in this respect might doubtless be shown, but in the absence of proof, the act of Dunlap, in assigning this as a stock note will be taken as true. Laws of 1845, sections 3 and 9, p. 246.
    S. T. Logan, for Deft.
   Treat, C. J.

First. What is the proper construction of this contract? Is it a note for the payment of §131,480 52, which the maker may discharge on the day it matures, by an equal amount of the obligations of the state of Illinois? Or, is it a contract, by which he only assumes to pay that number of dollars of state indebtedness? If the former, it is the privilege of the debtor to make payment on the day named, in the indebtedness of the state, but, if he fails thus to discharge the obligation, he is bound to pay the sum specified in specie; if the latter, he is, in any event, only liable for the actual value of the indebtedness agreed to be paid. There is a wide difference between the two classes of contracts. Where the promisor undertakes to pay a certain number of dollars in specific articles, such as grain, cattle, or other commodities, he must deliver the property on the day named in the contract, or he becomes absolutely bound to pay the sum stated in money. The sum expressed in the obligation indicates the true amount of the debt; and the other provision is inserted for the benefit of the debtor, and relates exclusively to the mode of payment. If he does not Avail himself of the privilege of discharging the debt in property, the obligation becomes a naked promise to pay the amount in money. But where the promisor agrees to pay a certain sum in bank notes, or other evidences of indebtedness, which purport on their face to represent dollars, and can be counted as such, the sum is expressed to indicate the number of dollars of the notes or evidences to be paid, and not the amount of the debt or consideration. The obligation is in fact but a promise to deliver so many dollars, numerically, of the securities described. If the debtor fails to deliver them according to the terms of the contract, he is responsible only for their real, not their nominal value. Their cash value is the true amount of the debt to be discharged. And beyond the damages directly resulting from the breach of the contract, the creditor is not entitled to recover.

The contract in question falls directly within the latter definition. It is an undertaking to pay a given number of dollars of the indebtedness of the state oBIllinois. This indebtedness consists of obligations issued by the state, for the payment of specified sums of money to its creditors. The amount in dollars is expressed on the face of the instruments, and can be at once ascertained by inspection. The debt secured to be paid by this note, was no doubt the market value of the amount of state indebtedness specified, as understood and ascertained by the parties. If they intended that the indebtedness should be received at any other rate than its nominal value, they certainly would have so provided in the contract.

This construction of the contract is sustained by the adjudged cases, some of which will be noticed. In Clay v. Huston’s admrs, 1 Bibb, 461, the expression in a note “thirty pounds in militia certificates,” was construed to mean that number of pounds in certificates as specified on their face, and not an amount 'of certificates equal in value to thirty pounds in specie. In Anderson v. Ewing, 3 Littell, 245, a note for the payment of “eight hundred dollars, on or before the first day of September, 1820, in such bank notes as are received in deposite at that time in the Hopkinsville Branch Bank,” was held to be a contract to pay eight hundred paper dollars of the description mentioned. The Court said: “It is true, an instrument drawn, stipulating the payment of a certain number of dollars in cattle, wheat, or other commodities, is construed to mean so much of these articíes as will amount to that sum in specie. But the reason of this is evident. The commodities themselves cannot be counted by dollars, as that name is never applied to them. But this is not the case with bank notes. They engage to pay so many dollars, and are numerically calculated by the numbers they express; so that the expression ‘eight hundred dollars in bank paper’ is universally understood to mean that much money, "when the numbers expressed on the face of the notes are added together, and not as including so many more, superadded, as will make them equal to eight hundred dollars in specie.” In Philips v. Riley, 3 Connecticut, 266, a note for “ Eighty-eight dollars in current bank notes, such as pass in Norfolk between man and man,” was decided to be a contract to pay bank notes of the kind described, to the nominal amount of eighty-eight dollars. In Robinson v. Noble’s admrs, 8 Peters, 181, in an action on an agreement to pay freight at the rate of one dollar and fifty cents per barrel, “in the paper of the Miami Exporting Company, or its equivalent,” the Court held, that the specie value of the paper, when the payment should have been made, was the proper measure of damages. In Hixon v. Hixon, 7 Humphrey, 33, a note for “One hundred dollars, in Georgia, or Alabama, or Tennessee bank notes, or notes on any good men,” was decided to be an obligation for the payment of that many dollars of the notes specified. In Gordon v. Parker, 2 Smedes & Marshall, 485, a note for “five thousand dollars, payable in Brandon money,” was determined to be a contract to pay that number of dollars of the kind of money described. In Dillard v. Evans, 4 Pike, 175, the Court held a note payable in the “common currency of Arkansas,” to be a contract to pay so many dollars of the bank paper then current in the state.

Nor is the view we are inclined to take of this contract, in conflict with the cases of Pinney v. Gleason, 5 Wendell, 393, and Brooks v. Hubbard, 3 Connecticut, 58. The former was an action on a note for the payment, of “seventy-nine dollars and fifty cents, on the first day of August, 1822, in salt, at fourteen shillings per barrel;” and the latter was an action on a note for “two hundred and fifty dollars, in brown shirting, at the price of thirty cents per yard, for every yard in length, and to average three-fourths of a yard in width.” It was determined in each of these cases, that the measure of damages was the sum mentioned in the note, and not the value of the articles designated for payment. The sum was stated to express the amount of the indebtedness; and the remaining provision was inserted to give the debtor the option to pay in specific articles, at a stipulated price. The price of the articles was fixed to obviate the necessity of resorting to parol evidence to ascertain the value, and that the debtor might know how much he would be bound to deliver, and the creditor how much he would be entitled to demand, in the event the articles should be tendered. If the note in question contained a provision, that the state indebtedness should be received at a particular rate to the dollar, the cases might be alike in principle; but as it does not, those decisions form no just criterion for the determination of this case.

Second. What is the true measure of damages for the breach of this contract? It is well settled, in the case of a contract for the sale or delivery of a personal chattel, that the proper criterion by which to measure damages for the breach of the contract, is the cash value of the article, at the time it should have been delivered. If the consideration has not been paid, the purchaser is only entitled to recover the difference between the contract price, and the market value of the article when the delivery ought to have been made. Leigh v. Patterson, 8 Taunton, 540; Gainsford v. Carroll, 2 Barnewell & Cressell, 624; Shepherd v. Hampton, 3 Wheaton, 200; Shaw v. Nudd, 8 Pickering, 9; Stevens v. Lyford, 7 New Hampshire, 360. To this general rule, the British Courts have made a single exception. In actions on contracts to replace stocks, the measure of damages is held to be the market value of the stocks, at the time they should have been returned, or on the day of trial, at the option of the plaintiff. Shepherd v. Johnson, 2 East, 211; McArthur v. Seaforth, 2 Taunton, 257; Downs v. Buck, 1 Starkie, 318; Harrison v. Harrison, 1 Carrington & Payne, 412. This exception has been recognized in New York, and the principle extended to contracts for the delivery of property, where the price has been paid in advance. In such cases, the vendee is permitted to recover the highest market price, between the period of delivery and the day of trial. West v. Wentworth, 3 Cowen, 82; Clark v. Pinney, 7 ibid, 681; Commercial Bank v. Kortwright, 22 Wend., 348; Wilson v. Little, 2 Comstock, 443.

But independent of these cases, and occasional dicta to be

found, in a few reported cases, the general rule seems to remain unimpaired by judicial decisions. In the cases of Clay v. Huston’s admrs, Anderson v. Ewing, Hixon v. Hixon, and Gordon v. Parker, before cited, in all of which the consideration of the notes had been advanced, the measure of damages was held to be the cash value of the paper, at the time it was payable. In Smith v. Berry, 18 Maine, 122, which was an action on a note for one hundred and thirty casks of lime, paid for in advance, the Court decided that the payee could not recover beyond the market value of the lime, when it should have been delivered, and interest. In Sargeant v. The Franklin Ins. Co., 8 Pickering, 90, which was an action for refusing to transfer shares of stock, the measure of damages was declared to be the market value of the shares, at the time they should have been transferred. In Smethurst v. Woolston, 5 Watts & Sargeant, 106, which was an action on a contract for the delivery of specific articles, paid for in advance, the value of the articles at the time of the breach was held to be the proper measure of damages. Chancellor Kent, in referring to this subject, holds this language: “I do not regard the distinction alluded to as well founded or supported. It is disregarded or rejected by some of the best authorities cited. The true ride of damages is the value of the article at the time of the breach, or when it ought to have been delivered. That is the plain, stable, and just rule within the contract of the parties. Damages for the breaches of contracts are only those which are incidental to, and directly caused by the breach, and may reasonably be supposed to have entered into the contemplation of the parties, and not speculative profits, or accidental or consequential losses, or the loss of a fancied good bargain.” 2 Kent’s Com., 6th Ed., 480, notes. Mr. Sedgwick, in liis Treatise on the Measure of Damages, at page 277, after a thorough examination of the authorities, seems to arrive at the same conclusion.

The weight of authority manifestly supports the general rule before laid down, and is against any discrimination in favor of cases in which the price has been paid in advance. It has been applied by this Court to contracts for the conveyance of real estate, where the vendee has advanced the purchase money, On the breach of such contracts, the value of the land at the time it should have been conveyed, is the measure of damages. Buck-master v. Grundy, 1 Scammon, 310; McKee v. Brandon, 2 ibid, 339. We have no hesitation in holding the rule applicable to contracts for the sale or delivery of personal property, without regard to the circumstance, whether the price has been paid or not. If unpaid, the purchaser recovers the difference between the price he agreed to pay, and what the commodity was worth, when it should have been delivered; if paid, he is entitled to> recover the market value of the article, when the delivery ought to have been made, and interest in the way of compensation for the delay. This is as full an indemnity as can well be accorded, consistent with the policy of the law. Legal rules ought to be general in their application, so far as to-embrace all cases depending on the same principles.. There is-no- more reason for exempting cases like the present from- the operation of the generl rule, than there is for holding in the case of the breach of a contract to pay money, that the creditor may recover damages beyond the amount agreed to be paid and interest. He may be, and in point of fact generally is, as seriously injured by the neglect of his debtor to pay a money demand on the day it falls due, as he is by his failure to perform promptly a promise to pay a debt in specific articles. And yet, it would not for- an instant be contended, in the case of the obligation, to pay money, that the sum specified, does not form the only criterion for estimating-the damages. It is as much within the understanding of the parties, that the value of the specific articles is to be the measure of damages, for the breach of the contract to deliver them, as it is that the sum stipulated to be paid is to be the measure of damages, for the breach of the contract to pay money. We hold, therefore, that the true measure of damages for the non-fulfilment of this contract, is the market value in specie of state indebtedness, on the day it should have been paid, and interest thereon to the day of trial. This was the- decision of the Circuit Court, and its- judgment must be affirmed.

Judgment affivmed„


text:
    Thaddeus Eames, Admr, &c., Pltff in Error, v. David Blackhart, Deft in Error.
    ERROR TO HENDERSON.
    When a person, just before his death, delivers his money to another to be paid over by him to his family, and the person who so receives the money is afterwards sued by the administrator of the deceased, on the ground that he had not accounted for all the money so received; Held, That it was erroneous in the Court to instruct the jury in this care, “that it was not incumbent on the defendant to account for what the deceased did with his money.” That it was for the jury, and not the Court, to determine, whether the facts and circumstances in evidence satisfied them that the deceased, at the time of his death, had more money in his possession than had been accounted for by the defendant; and whether or not there was sufficient prima facie evidence in the case against the defendant, to call upon him to explain how it was that he received no more money from the deceased.

      Held, also, that, as a general rule, it was true that one man was not bound to show what another had done with his money, yet that such a state of circumstances might exist, as to make it incumbent on a person who would discharge himself from liability, to show what another has done with his money. Held, also, that it was not the province of the Court to draw inferences from the evidence, or determine what it does or does not prove.
    This was an action of assumpsit, brought by the plaintiff" in error against the defendant in error, in the Henderson Circuit Court, in February, 1850, and was tried at the last April term, of said court, before Minshall, Judge, and a jury.
    The tieclaration contained only the common money counts for money loaned, money had and received, and also a count for interest on money over-due and forborne, and for work and labor. To all of which the defendants plead the general issue.
    Evidence was given on both sides which is of a character not easily abridged, so as to exhibit a fair view of the case. After the evidence was closed, the Court, at the instance of the defendant, instructed the jury as follows, to wit: “The Court will instruct the jury that it is not incumbent on the defendant, to account with what Joseph Eames did with his money, and unless they believe from evidence, that the said defendant received more money from Joseph Eames than he delivered to the plaintiff, they will find for the defendant.” To the giving which instruction the plaintiff excepted. The jury then retired and brought in a verdict for the defendant,. The plaintiff moved for a new trial, and assigned several reasons. The Court overruled the motion for a new trial, and rendered judgment for costs against the plaintiff, and awarded execution to be paid in. the course of administration; to all of which the plaintiff excepted,..

      He now insists that the foregoing instruction, under the facts of the case, was erroneous; that the verdict was contrary to evidence, and that on both of these grounds a new trial ought to have been granted. s
    Browning & Bushnell and R. S. Blackwell, for Pltff in Error.
    An instruction which assumes the existence of a fact, is erroneous. Reed v. Hurd, 7 Wend., 408; Fitzgerald v. Alexander, 19 Wend., 402; Lightburn v. Cooper, 1 Dana, 273; Dallam v. Handley, 2 A. K. Marshall, 424; Adams v. Tiernan, 5 Dana, 395. So an instruction which withdraws from the consideration ■of the jury any proof tending to establish the principal fact. Sullivan v. Enders, 3 Dana, 67; Planters' Bank v. Bank Alexandria, 10 Gill. & John., 357; Tiffany v. Savage, 2 Gill., 129; Speed v Hewen, 4 Mo. Rep., 356. So an instruction calculated to divert the attention of the jury from the facts upon which their verdict ought to rest. Reed v. Greathouse, 7 Mon., 560; 11 Wend., 83; 9 Conn., 107; 12 Pick., 177; 5 Day, 479; 5 Mass., 365. Province .of the jury and Court ably discussed in the following cases. Anderson v. State, 2 Kelly, 379; Steel v. Glass, 1 Kelly, 486-9.
    Williams & Lawrence, for Deft in Error.
    The credibility of witnesses is a matter peculiarly within the province of juries, and a Court will not set aside a verdict as against evidence, except in those cases where the verdict “strikes the mind, at first blush, as manifestly and palpably contrary to the evidence;” Dawson v. Robbins, 5 Gil., 72; Kincaid v. Turner, 2 Gil., 620; Evans v. Fisher, 5 Gil., 572.
   Trumbull, J.

Joseph Eames, a resident of Oquawka, on his return home from St. Louis, died suddenly of the cholera on ■board -a steamboat upon the Mississippi river. Just before his death, he delivered up to the defendant his money, and requested ■him to "‘keep and deliver it to his family. The deceased and the defendant had gone down to St. Louis together a few days previous, were both residents of Oquawka, and, so far .as the evideuce shows, were the only persons from that place upon the boat at the time of Eames’ death.

After his return, the defendant paid over to the plaintiff, who is administrator of the said Joseph Eames, deceased, two hundred and fifteen dollars in gold, and twelve dollars in paper money. This suit was brought upon the ground that defendant did not pay over all the money he received from the deceased.

A variety of facts were proven upon the trial, mostly of a circumstantial character, tending to show that the deceased had more money with him, and that the defendant received a larger sum than he had accounted for.

The defendant requested the Court.to instruct the jury as follows : That it is not incumbent on the defendant to account for what Joseph Eames did with his money, and unless they believe from the evidence, that the said defendant received more money from Joseph Eames than he delivered to the plaintiff, they will find for the defendant.” This instruction the Court gave, and the giving of it is now assigned for error.

That one man is not bound to show what another has done with his money, is true, as a general proposition, and yet such a state of circumstances may exist as to make it incumbent on a person, who would discharge himself from liability, to show what another has done with his money.

The first part of the foregoing instruction, as applied to the facts and circumstances of this particular case, was, we think, erroneous, for the reason, that it assumed that the evidence offered was not sufficient to justify the inference of such & prima facie case against the defendant, as to call upon him to explain how it was that he received no more money from Eames. We do not say that such a case was made out, and the Circuit Court had no right to say there was not, but should have left the jury to determine from all the circumstances in evidence, whether more money had been traced to the possession of Eames just before his decease, than the defendant had accounted for, and if there had been, whether enough was not shown in connection with the other evidence to make it incumbent upon the defendant to show what became of the balance of the money that Eames had.

The substance of the instruction was, that the plaintiff’s evidence was insufficient to warrant the inference, that Eames, about the time of his decease, had more money than defendant had paid over, so as to throw upon him the burden of accounting for such excess. Had the defendant been able to show that Eames shortly before his death, lost, paid out, or in any manner used any considerable sum of money, such circumstance would have been greatly in his favor. That he was bound to introduce such evidence we do not mean to intimate. He was clearly not liable for more money than he received from Eames, but in determining how much he did receive, it was for the jury to say whether the evidence satisfied them that Eames had in his possession, about the time of his decease, a larger sum of money than defendant had accounted for, and which must have gone into his possession, unless he could show that Eames otherwise disposed of it.

The instruction was calculated to mislead the jury, by withdrawing from their consideration part of the evidence in the case.

It is not the province of the Court to draw inferences from the evidence, or determine what it does or does not prove, and if it do so in a manner calculated to mislead the jury, its judgment will be set aside and a new trial granted.

Judgment reversed and cause remanded.

Judgment reversed.


text:
    Reuben Rowley, Pltff in Error, v. George W. Berrlan, Deft in Error.
    ERROR TO ADAMS.
    'The characters “R. P„” clearly indicate the office of Rotary Public.
    In attachment cases, the affidavit, if sworn to within the state, may be made before any officer authorized by the laws of this state to administer oaths, and the •Courts will take notice who are authorized to administer oaths within the county in which suit is brought. If the oath is taken in another county, the authority of the person administering it, must be established by evidence competent for the purpose. In other states the same officers who are authorized to take acknowledgments of deeds to be recorded in this state, may take affidavits to be used in cases of attacliment, and their acts in either case are to be authenticated in the same manner.
    The plaint & in attachment, where the defendant is not before the Court, is not entitled to a judgment for a greater sum than that claimed in the affidavit, together with coste and interest. »

      Aliter if the defendant is before the Court.

      This was an action of debt brought in attachment, by the defendant in error against the plaintiff in error. The affidavit for the attachment was in the words and figures following, to wit:
    “State of Illinois,) %„
    Adams County, j
    “George W. Berrian, being first duly sworn, deposes and says that Reuben Rowley is indebted to him in a sum exceeding •twenty dollars, on a promissory note, of which .the following is a copy:
    $212 57-100. New York, Api 4th, 1840-
    Sixty days after date I promise to pay George W.. Berrian, Two Hundred and Twelve 57-100 dollars, for value received
    R. Rowley, 96 Nassau st.
    “That there is now due from the .said Rowley, to him the said Berrian, on said note, $212 57-100 principal, with interest thereon at seven per cent, from June 6th, 1840, ($113 25,) and cost of protest, (75 cts.,) besides damages on protest. Said affiant further deposes and says that said Rowley is a non-resident of the state ofjllinois, and further deponent saith not.
    G. W. Berrian.
    “ Subscribed and sworn to before me, this 17-th day of January, 1848.
    W. H. Bennison, N. P.,
    For the city of Quincy, in Adams county, Hlinois."
    A bond was filed in the penal sum of $650. Writ was issued for the sum of $326 57, besides damages on protest, and returned levied upon real estate. Publication was made, and a copy of the advertisement filed, which sets forth that a writ of attachment has been issued for the sum of $326 57. Judgment was rendered before Purple, Judge, and a jury, at May term, 1848, by default for $212 57 debt, and $152 18 damages, making the amount of the judgment $364 75. Execution was issued, and land sold in full satisfaction. The defendant in the Court below, brings the cause to this Court.
    Williams & Lawrence, for Pltff in Error.
    Browning & Bushnell, for Deft in Error.
   Treat, C. J.

This was a foreign attachment sued out by Berrian against Bowley, on the 17th of January, 1848. The affidavit, on which the attachment was founded, after reciting, a promissory note, made by the defendant to the plaintiff, bearing date at Hew York, on the 4th of April,. 1840, for $212 57, payable in sixty days, proceeded as follows: “That there is now due from the said Bowley to him the said Berrian on said note, $212 57 principal, with interest thereon at the rato of seven per cent, from June 6th, 1840, $118 28, and costs of protest, 75 cts., besides damages on protest.” The jurat was subscribed, “W. H. Bennison, H, P., for the city of Quincy, in Adams- county, Illinois” The writ of attachment was levied on real estate. There was a publication of notice of the pendency of the proceeding, in which the amount claimed to be recovered was stated to be $826 57—the aggregate of the sums specified in the affidavit The plaintiff in his declaration claimed to recover in addition, fourteen per cent, on the amount of the note, as-damages allowed by the law of Hew York on account of'the protest for non-payment. The defendant was not served with process, nor was his appearance entered. On the 80th of May, 1848, a judgment was entered in favor of the plaintiff, for $364 75 and costs, with an award of execution against the property attached. The defendant now assigns error on the record.

It is contended, that the affidavit was not made before an officer competent to administer oaths. The characters H. P. aro an abbreviation of the term notary public. They are in common use, and well understood. They as clearly indicate the office of notary public, as do the characters J. P. that of justice of the peace; and this Court has repeatedly decided that such is the meaning of the latter initials. Shattuck v. The People, 4 Scammon, 477; Livingston v. Kettelle, 1 Gilman, 116. It sufficiently appears from the record, that the affidavit was made before a notary public of the county in which the action was commenced. Proof of Ms official character was not required. A Circuit Court will take notice who are notaries for the county in which it is held. Stout v. Slattery, ante, 162. But it is objected, that a notary cannot take an affidavit, which is to become the foundation of an attachment, unless he authenticates the same under his seal of office; and the 32cl section of the 9th chapter of the Bevised Statutes is referred to as sustaining this position. That section declares, that “The affidavit required in the first section of this chapter may be sworn to before any officer authorized by the laws of this state to administer oaths, or by any officer of any state, territory or district of the United States; the fact that the person administering such oath is duly authorized, to be proved in the same manner as in the acknowledgment and authentication of deeds.” We understand this provision as embracing two classes of cases. First. The affidavit may be made before any officer authorized by the laws of this state to administer oaths, and when so made, the official character of the individual administering the oath may be proved as in other cases. If made in the county in which the suit is brought, proof of the official character of the jierson administering the oath is not ordinarily required. The Courts will take notice who are authorized to administer oaths within the county. If the oath is taken in another county, the authority of the person administering it must be established by evidence competent for the purpose. Second. The affidavit may be made out of the state, before any officer authorized by the statute to take the acknowledgment of deeds to land lying in this state; and when thus made, the same proof of the official character of the person administering the oath "must be made, as in the case of the acknowledgment of a deed. The same officers in other states, who are authorized to take the acknowledgment of deeds to be recorded in this state, may take affidavits to be used in cases of attachment; and their acts in either case arc to be authenticated in the same manner. The statute allows deeds to be proved or acknowledged before any judge of the” courts of the United States, any commissioner to take the acknowledgment of deeds, and any judge of the supreme, superior, or circuit courts of any of the states or territories of the United States; and no other proof, than a statement to that effect in the certificates of these officers, is required of their official character. Such a certificate affords primet facia proof of the authority of the person making it. Deeds may also be acknowledged before a clerk of a court of record, mayor of a city, and notary public of another state, but these officers are required to certify the acknowledgments under their seals of office. Deeds may also be acknowledged before a justice of the peace of another state, but the proper clerk must certify his official character. Acts of 1847, p. 37.

It is insisted, that the judgment is erroneous, because it is for a greater amount than the sum claimed in the affidavit, and set forth in the notice of publication. We are inclined to regard this objection as well taken. The proceeding by attachment is in derogation of the common law, and in the nature of a proceeding in rem; and where, as in this ease, there is neither personal service on the defendant, nor appearance by him, and the regularity of the proceeding arises directly and not collaterally, a substantial compliance with the requirements of the statute ought to appear on the face of the record.. The law requires the plaintiff to file an affidavit, setting forth particularly the nature and amount of the indebtedness; and the advertisement to the defendant must apprise him of the amount claimed by the plaintiff. The writ of attachment commands the sheriff to attach so much of the estate of the defendant, as will be sufficient “to satisfy the claim sworn to, with interest and costs of suit.” The judgment can only be satisfied out of the property levied on. It is not, for any- other purpose, even prima facie evidence of indebtedness. It is evidently the design of the statute, that the plaintiff shall be restricted to the particular demand set out in his affidavit. The Court may upon satisfactory proof enter a judgment for the plaintiff, for the amount claimed in the affidavit and accruing interest, and subject the estate attached to the satisfaction thereof, and the costs of the proceeding. Beyond this, the Court has no authority to adjudicate upon the rights of the parties. It only has jurisdiction of the person of the defendant, for the purpose of subjecting the property attached to the payment of the particular cause of action specified in the affidavit. This precise question arose in the case of Henrie v. Sweazy, 5 Blackford, 273. There, the plaintiff in his affidavit for the attachment claimed a certain amount to be due him, and he recovered a judgment by default for a larger sum. In holding the judgment to be erroneous, the Court remarked: “The plaintiff in attachment is not entitled to a j udgment for a greater sum than he demands by his affidavit, together with interest, if the debt be such as to draw interest.” The cases in Maine and Massachusetts, referred to as establishing a different doctrine, have no application to this proceeding. Those decisions were made in actions in personam. Where a defendant in attachment is before the Court, either by the service of process, or by the entry of an appearance, the suit then becomes a proceeding in per sojiam; and, if the defendant does not take advantage of the variance between the writ and declaration by motion or plea in abatement, the plaintiff may declare on other causes of action than those specified in the affidavit, and the judgment will have the like force and effect of a judgment in an ordinary action. But this is not such a case. The defendant was not before the Court, and the judgment includes a demand not stated in the affidavit. Although growing out of the note sued on, it is for the purposes of this case another and distinct demand. It was mentioned generally in the affidavit, but no specific sum was claimed to be due in respect of it, and the advertisement did not notify the defendant that such a claim would be insisted on. The reference to this demand in the affidavit, not being specific, must be disregarded. It is as if no allusion had been made to it. Allowing the plaintiff interest on the amount sworn to be due up to the rendition of the judgment, and there is a considerable excess, which was no doubt caused by including the damages claimed in the declaration on account of the protest of the note. Eor this error the judgment must be reversed, with costs, and the cause remanded.

Judgment reversed.


text:
    Thomas Hollowbush et al., Pltffs in Error, v. Murray McConnel et al., Defts in Error.
    ERROR TO MORGAN.
    The only mode by which the final decision of a case in the Supreme Court can be reversed or set aside, at a subseauent term, is bv netition for a reliearinir.
    This cause has been before this Court on several different occasions, and will be found reported in 4 Gilman, p. 511, and in 11 Illinois, p. 61, from which all the facts in the case can be ascertained. The present unit of error was issued to the Morgan Circuit Court, and by agreement errors were assigned by both parties. The decree in the Circuit Court was at September term, 1850, Woodson, Judge, presiding.

      D. A. Smith and A. Williams, for Pltffs in Error.
    M. McConnel, pro se.

   Trumbull, J.

This case was before the Court a year ago, and all the legal questions involved in it were then settled. 11 111., 61.

The case was remanded, for the purpose of ascertaining the value of the rents and profits of the premises in question, and also of the improvement erected thereon; if it could be shown to be for the benefit of the estate, and to have been made in good faith. After an amendment of the pleadings in the Circuit Court, so as to present the question of the improvement, the case was referred to a master to state an account. The appellee filed exceptions to portions of the master’s report, which were overruled and the report approved. Whereupon a final decree was entered, from which an appeal has been taken by the defendants below, and in this Court, by consent, both parties have assigned errors.

The appellants complain, that the Circuit Court erred in decreeing, that the appellee had the right to redeem the mortgaged premises, and in allowing him anything for the rents and profits of the Naples ferry.

Both these questions were substantially settled when the case was here before. The first one was the very point then decided, and the Court has now no power, if it had the inclination, to reverse that decision. There is no mode provided by law, except it be upon a rehearing, whereby the final decision of a case in this Court can be reversed or set aside at a subsequent term.

There must be an end of litigation somewhere, and there would be none if parties were at liberty, after a case had received the final determination of the Court of last resort, to litigate the same matter anew, and bring it again and again before the Court for its decision. Washington Bridge v. Stewart, 3 Howard, 413; Booth v. Commonwealth, 7 Metc., 286.

Waiving, however, for the moment, the former decision establishing McOonnel’s right to redeem, which cannot now be legally-questioned, we will, for the sake of the counsel who has argued against this right with such evident sincerity, briefly re-state the grounds of that decision.

The case has been treated as if it were a bill' to redeem, after foreclosure and sale of the mortgaged premises by the mortgagee. Such is not the fact. The sale made was set aside, and the decree reversed under which it was made. Before the time for making the sale under the last decree arrived, this bill was filed. The right of the mortgagor, or his grantee, to pay off the mortgage and redeem the premises, before the day arrives when by the decree the sale is to be made, cannot surely be questioned. The real question is, whether in redeeming, McConnel, under the peculiar circumstances of this case, has the right to claim, as a credit upon the mortgage, the value of the rents and profits of the mortgaged premises while in possession of the appellants. If he has that right, it is upon the ground alone, that he could not avail himself of it as a defence against the bill to foreclose.

What are the facts ? In 1844 a decree is entered, that the mortgaged premises be sold. The sale takes place, and they are purchased by the assignee of the mortgagee; claiming under ■whom the appellants, in 1845, take possession of the mortgaged premises, including the Naples ferry, and continue to receive the rents and profits thereof till 1848, when the decree entered in 1844 is reversed, and the sale under it set aside by a decision of this Court. Manchester v. McKee, 4 Gil., 511. The Circuit Court to which the cause was remanded, without opening the case so as to afford McConnel, the grantee of the mortgagor and a defendant in that suit, an opportunity to present any defence that had arisen after 1844, when the case was set for hearing, entered another decree directing a sale of the mortgaged premises, in default of the payment of the sum due in ninety days, consequently it was out of McConnel’s power to show in that case, that the present appellants, who are the assignees of the mortgagee, had been in possession of the mortgaged premises (receiving the rents and profits) from 1845 to 1848, and that thereby the mortgage had, in fact, been paid. No such defence existed in 1844, when the case was set for hearing, and the decree then entered was never afterwards opened, so as to allow McConnel to interpose it. Why then should he not be allowed, at any time before the decree of 1848 was carried into effect, to show that circumstances had occurred, after the case was set for hearing, that amounted to a discharge of the sum for which the decree was rendered ? Admitting the allegations of his bill to be true—and McConnel certainly had rights—how, under the peculiar circumstances of this case, was he to avail himself of them, except by filing a new bill—not as has been alleged for the purpose of undermining or setting aside a former decree, but for the purpose of bringing before the Court facts that arose after the former case was heard, and showing that the amount due by the decree then entered, had been partly or wholly paid ? From the necessity of the case he must have had the right to file such a bill.

The appellants next object, that they are improperly charged with the rents and profits of the Naples ferry, because, as they say, it constitutes no part of the mortgaged premises.

After both parties have all along, during this protracted controvery, treated the Naples ferry as appertaining to the mortgaged premises—the complainant alleging in his bill, that the defendants, claiming as purchasers under the mortgage, had taken possession of the land and ferry, and the defendants, in their answer, admitting the possession, and speaking of the ferry as appertaining to the mortgaged premises—-after this Court had acted upon this understanding of the parties in its former disposition of the case, it is now too late for the appellants to insist, for the first time, that the ferry constitutes no part of the premises which the appellee is seeking to redeem.

No such objection was urged when the case was here before, nor was it then pretended that McConnel was not entitled to an account of the rents and profits of the ferry, in case he was permitted to redeem. In fact the very foundation of his case as it now stands, the appellants having been shown to be solvent, depends upon their receipt of the rents and profits of the ferry, which was the only income derived from the premises. The amount of waste, shown to have been committed by the appellants, is so small, being but twenty dollars, that it would not of itself justify the maintainance of a suit of this character, in reference to property so valuable.

This Court, then, in deciding that McConnel had the right to redeem, necessarily passed upon the question of his right to claim the rents and profits derived from the ferry by the appellants, while in possession of the same, and we are not now at liberty to re-investigate that question.

The appellee, in his assignment of errors, asks to have the decree modified in various respects. He complains, that appellants are. not charged with the rent of the ferry from 1843 instead of from 1845 ; that too small a sum, according to the evidence, was charged against them for the profits of the ferry, while they had possession; and, that they ought not to have been allowed at all for the warehouse.

According to the former decision of this Court, the appellants were only chargeable with the rents and profits of the ferry from June, 1845, and that was manifestly the proper time from which they should have been charged, because that was the time when they took possession, under their purchase, from the assignee of the mortgage, and it is only because they got possession of the ferry by virtue of their claim of title, derived from the mortgagee, that they are to be charged with the rent of the ferry at all in this suit.

It is difficult, or rather impossible, to determine from the evidence in the record, what the precise value of the ferry per annum has been since 1845. The testimony upon that point is contradictory, and some of it not very pertinent.

Upon the whole, we are not prepared to say, that the master erred in his report upon that subject.

The warehouse is shown by the evidence, to have been a judicious improvement, put upon the premises by the appellants in good faith, when they supposed that they were the owners of the land, and according to the previous decision of this Court they were properly allowed for its erection.

The decree of the Circuit Court is affirmed.

Decree affirmed,