Volume 12 — Illinois Reports

This was a hill filed in the Lawrence Circuit Court, by Eichland County, for the purpose of obtaining from the former for the benefit of the latter County, a portion of the fund appropriated by the legislature in 1837 for the benefit of such Counties as had not any railroad or canal passing through them.

Elisha W. Dunn, on the eleventh day of February, 1850, entered into a recognizance before Charles Cook, a justice of the peace for Madison county, with Andrew Mather, the plaintiff' in error, as his surety, to appear at the next term of the Madison Circuit Court, to answer a charge of having in his possession counterfeit coin, and apparatus for making the same.

This was an action of debt, upon the official bond of a clerk of the Circuit Court brought against himself and his sureties, in the Jefferson Circuit Court, which was dismissed upon a general demurrer, heard before Denning, Judge, at the August term, 1849, of the Jefferson Circuit Court. The facts of the case necessary to a full understanding of the opinion are stated in it.

This was an action of trespass on the case, brought by plaintiff in .error against the defendant in error in the Madison Circuit Court.

This bill was filed, in the Washington Circuit Court, by William Stoker, praying that the sale of certain lands might be set aside as being unlawful and oppressive.

This was an action commenced before a justice of the peace of Johnson county, to recover a penalty for a failure on the part of the defendants in error to discharge their duties as public millers, under the act regulating mills and millers. A judgment was rendered by the justice for a peralty of five dollars, against the defendants below, by default. The defendants below prayed an appeal to the Circuit Court of that county.

This was an action, trespass quare clausum freget, brought by Godfrey against the City of Alton.

This is an action of ejectment to recover possession of an easement in a lot in the city of Alton, brought by the city to try the right of the public to the same as a public highway, landing or common, dedicated to the public use,—described as that lot which is embraced within the following boundaries, to wit: Beginning at a point on the South side of Front street, in said city, 120 feet West of the West side of Easton street, in said city; thence on the said South line of…

This was an action commenced before a justice of the peace in White County, by a capias ad respondendum, and taken by appeal to the White Circuit Court. The cause was heard before Harlan, Judge, at September Term, 1850, who rendered a judgment for defendant in error.

This was an action commenced by the Trustees of Schools for T. 2 S., R. 2 E., before a justice of the peace, against the plaintiff in error and two others as joint makers of a promissory note. Service was only made on Walter. A judgment was recovered against Walter, who prayed an appeal to the Circuit Court of Jefferson county.

This was an action originally commenced before a justice of ri£he peace, and taken by appeal to the Circuit Court of Wayne county. The cause was there tried before Harlan, Judge, and a' jury, at March term, 1849, when a verdict was found and a judgment thereon entered for the defendants. The note sued on is set out in the opinion of the Court.

The bill of -complaint filed in this cause by Geines, shows tbat he was indebted to Selby in December, 1842, in the sum of §200, on a note drawing twelve per cent, interest, which Selby wished to have secured by a mortgage on a farm, which was agreed to be given upon the conditions, that if Selby should attempt to enforce payment by foreclosure, that the land should be sold in a body, after it had been appraised by three disinterested individuals, and provided it brought…

This was an appeal from a justice of the peace to the.Circuit Court of Jefferson County. - The fact’s of the cáse are fully set out in the opinion of the Court. The -cause was heard before Denning, Judge, and a jury •at the August Term, 1850, of the Circuit Court, and resulted in a verdict for the- plaintiff, and a judgment for $40 and ’ costs. A motion for a new trial was overruled.

This was an action of trespass quare clausum fr eg it, commenced in. the Madison Circuit Court, by appellee against appellant, and charges that the trespass complained of was committed on the 1st day of September, with a continuendo to the 1st day of February, 1850. The appellant pleaded the general issue and two special pleas. Issue was taken upon the pleas, but as the decision of the Court does not turn upon the pleadings, it is unnecessary to recite them.

This was a proceeding instituted before a justice of the peace, upon a complaint for an assault- and battery. A trial was had and a fine of ten dollars was inflicted upon the plaintiff in error; whereupon he prayed an appeal to the Circuit Court, which was allowed. A bond was executed in the penal sum of $42 00, reciting that the judgment was fora like sum. In the Circuit Court, a motion was made to dismiss, because the appeal bond did not conform to the requisitions of law.

This was an action of trespass, vi et armis, brought in the St. Clair Circuit Court by the appellee, which was tried by a jury Underwood, Judge, presiding, at the September term, 1850. A verdict was found for the appellee for sixty dollars. A motion for a new trial was entered by appellants.

On the 7th of- Juné, 1849, plaintiff below,'filed his declaration in trespass (luare'ddmhm'f'regit, againstdefendañt'belbt^, contain-' ing two counts. 1st count charges, that defendant on the 1st day of June, 1845, and on divers other days between thht day and the commencement of this action, broke the close of plaintiff, &c., broke down the fence and erected buildings, &c. 2d count, charges that on the 1st day of June,, A. D. 184,8, and'at' divers other times, from that'…

The record in this case shows, that William Russell, now deceased, in his life túne, by his attorney filed in the office of the clerk of the Circuit Court of Clinton County a precipe and declaration in assumpsit, on the 16th day of June, 1846, against several defendants. A summons was issued, returnable at the September term, 1846, of that Court, which was returned served, on four of six defendants, on the return day of the summons, and returned not served on the other two.

This was an action of debt, brought by defendants in error, upon a promissory note, in the Franklin Circuit Court. A plea of tender was interposed, which was disposed of as stated in the opinion of the Court. A judgment was rendered for defendants in error, before Denning, Judge, at the April term, 1850. The defendants below sued out this writ of error.

Burkett sued Bond in an action of trespass on the case, for so negligently and carelessly driving a mare out of his close, in which she was trespassing, as to cause her death. Bond filed a plea of the general issue. The cause was heard before Harlin, Judge, and a jury, at the April term of the Edwards Circuit Court, when a verdict was found and a judgment rendered for the defendant. A motion for a new trial was denied.

This was a hill in chancery filed by appellant in the Eranldin Circuit Court, but the judge of that Circuit having been of counsel for one of the parties, the venue was changed to Perry county, where by consent of parties, the cause was heard by S. Breese, Esq., sitting as Judge, and a decree was pronounced dismissing the bill at the cost of complainant, at October term, 1850.

This was an action, brought in the Crawford Circuit Court by the pltff in error, against the defendants in error, upon a forthcoming bond. The facts of the case arc set out in the opinion of the Court. The plaintiff standing by his demurrer to the plea, the Circuit Court, Harlan, Judge, presiding, at Sept, term, 1850, gave judgment for the defendant, dismissing the suit.

The bill in question was filed for an injunction against the assignees of the Bank of Illinois, to prevent their selling certain lands, and to enforce a conveyance of title of the same lands to the complainant, plaintiff in error.

This was an action in trover brought by the appellee in the Marion Circuit Court, for the value of a promissory note' for $412, and a mortgage to secure the same, given to one Marshal Wautland, by appellant, and assigned by Wautland to Hite, which came into the hands of appellant, in the manner set out in the opinion. To the declaration the appellant filed the general issue, and a verdict for $200 was found for appellee.

This was an application for a peremptory mandamus. The facts of the case sufficiently appear in the opinion of the Court. This application was made to the Court, in the Third Division, but by consent of parties it was heard and decided in the First Division.

Abrams sued Lee in an action of account, alleging in his declaration, that they had been mercantile partners, that at the dissolution, Abrams left Lee in possession of all the assets of the firm, which consisted of goods, wares, &c., money, and produce to a large amount, and a great number of claims, consisting of notes, bills of exchange and books of account.

The opinion of the Court contains a statement of the case. The judgment appealed from was rendered by Davis, Judge, at the January term, 1850, of the Sangamon Circuit Court.

This action was commenced in assumpsit, in the Morgan Circuit Court, by the plaintiff in error against the defendants. The defendants filed the plea of the general issue, verified by the affidavits of all the defendants. At the trial the plaintiff insisted that he was not bound to prove the partnership, that fact not having been put in issue by the plea.

This was a suit in chancery brought by Saunders as treasurer of T. 18 FL, E. 12 W.,■ of Cass county, against W. W. Babb, and this appellant and others, in the Cass Circuit Court, to foreclose a mortgage, given by Babb to one John T. Jones who was school commissioner of Morgan county.

This case is fully stated in the opinion of the Court. The judgment was rendered by Woodson, Judge, at September term, 1850, of the Morgan Circuit Court, and the plaintiff below appealed.

This suit was originally commenced by Triplett in his name alone, against Scott, before a justice of the peace in Hancock county. The foundation of the suit was a judgment rendered before the same justice, entered in the name of “Dennis Clancey for use of Inman H. Triplett.” Triplett obtained judgment in his own name against Scott for the sum of $4 00, the amount of the judgment sued on. Scott appealed to the Circuit Court.

The agreed case, filed herein, is substantially as follows: An act the better to provide for the incorporation of the town of Jacksonville, passed by the legislature of said State, provides as follows: ‘ ‘ The board of trustees shall have power and authority to assess and collect taxes uniform, in respect to persons and property for corporate purposes, upon all the real and personal estate within said town, not exceeding one-half per cent, per annum upon the assessed value…

This was a proceeding by Scire Facias, in the Jo Daviess Circuit Court, to revive a judgment theretofore rendered in favor of the defendant in error, at the March term, 1842, of said Court, against John Turney, who afterwards deceased. The Sci. Fa. issued against the present plaintiff in error, as administratrix of John Turney.

This was an action commenced by the appellees against the appellant in Adams county, before a justice of the peace. The judgment upon the motion to quash, was rendered by Minshall, Judge, at May term of the Adams Circuit Court, 1849. Gallimore prayed this appeal. The facts of the case are stated in the opinion of the Court.

The declaration in this ease commenced as in debt, and concluded to the damage of the plaintiff of one thousand dollars. The body of the declaration had but six counts, which were all in assumpsit. To this declaration defendant replied, that he did not owe the sum of $1,000 00, demanded as debt in the plaintiff’s declaration, &c., and gave notice with his plea, that he would rely upon the statute of limitations of five years, as a bar to the plaintiff’s demand.

The hill in this case was filed to procure the re-conveyance of certain lands. The respondent died after the hill was Med, and proceedings were had against his survivors, and a decree entered upon the prayer of the hill in favor of the complainant. The heirs of the respondent, some of whom were minors, were never served with process, nor were they represented in the case. The widow of the first respondent married Sconce, one of the plaintiffs in error.

This case having been presented to the Court at a previous term, all the facts of the case necessary to its elucidation will be found in the eleventh volume of Illinois Reports, page 341.

The facts of this case are stated in the opinion of the Court. The motion to dismiss was sustained, and the judgment of dismissal entered, by Minshall, Judge, at the August term, 1850, of the Brown Circuit Court. The Trustees of Schools prosecute this writ of error, and assign for error the dismissal of the suit, because security for costs had not been given.

Bailey sued Jackson before a justice of the peace, in two suits at the same time, one for the balance due upon a note amounting to $10 85, and the other, to recover the amount of an account for $18 00. Judgment was rendered, by default in both cases, as follows: for $10 85 on the note, and for $8 00 on the account. Jackson paid the amount of the judgment on the account, and took an appeal from the judgment upon the note to the Circuit Court.

The Circuit Court of Adams county, Minshall, Judge, presiding, at May term, 1849, upon motion of the appellee, quashed the certiorari issued on behalf of the appellant. The facts- of the ease-are fully stated in the opinion of the Court,

Boorman sued Freeman & Co. before a justice of the peace, upon an account. Freeman & Co. filed an account in set off, and recovered a judgment against Boorman for $24 38. From this judgment Boorman appealed to the Morgan Circuit Court; the appeal bond was signed by'an unauthorized agent in the name of Boorman.

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 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.

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.

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.

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.

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.

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.

This is a suit in chancery, wherein the said Simeon Ryder is complainant, who filed his bill against Buckmaster and others, to foreclose a mortgage assigned to him by the State Bank of Illinois ; in which bill he alleges, that one Sigerson & Harrison, in August, 1840, being indebted to the Bank $4,196 00, made four notes to secure that sum, payable in two, three, four and five years from date, and gave the mortgage sued on, to the Bank to secure these notes; that Sigerson &…

The defendant, Kinsey Virgin, was administrator of an estate. At the sale of the personal property of said estate by said Virgin, the plaintiff in error bought two horses, and gave the note sued on. The suit was brought before a justice of the.peace, and a judgment rendered against Ray for the amount of the note, and he took an appeal to the Circuit Court.

This was an action of covenant brought on an agreement between the parties, which will be found in the following count, which was the fourth of the declaration. Demurrers were filed to each of the counts to which there was a joinder, and the Circuit Court of Adams County, Miushall, Judge, presiding, sustained the demurrers, whereupon the plaintiff in the Court below sued out this writ of error. The judgment in the Circuit Court was rendered at October term, 1850.

This was a bill filed to foreclose a mortgage. The process served, was not attested by any seal. At the return term, the bill was taken for confessed, and a decree was entered by Treat, Justice, at November term, 1847. The plaintiff in error now seeks to reverse the judgment of the Circuit Court, and assigns for error, the want of a seal to the summons.

This was a proceeding by motion in the Cass Circuit Court, to set aside an execution issued upon a judgment in favor of Watkins, against McHenry and another, upon the ground that the judgment upon which the execution had been issued was satisfied.

This was an action of debt brought in the Christian Circuit Court, to recover a penalty under the statute for cutting trees.

This was an action of assumpsit, brought by Denman against Bloomer, in the Adams Circuit Court. The cause was tried at October term, 1850, before Minshall, Judge, and a jury, and resulted in a verdict and judgment for the plaintiff, of $391 39, with costs. The facts necessary to a full understanding of this controversy, will be found in the opinion of the Court; and by reference to the 11th Ills., 177, where the same case is reported.

This was a proceeding for a mandamus, commenced in the La Salle Circuit Court, by Hoes and others, toenforce the construction of a bride over the Illinois and Michigan Canal.

This was a bill in chancery filed by Capps against the plaintiffs in error and others. The bill charges that Capps had an equitable interest in certain lands, which Pascal P. Enos held as trustee for one Moore, and of which he died seized. That Moore and the heirs of Enos, are combining, &c., to deprive Capps of the land. P. P. Enos deceased, and left a widow and several children, who were all made parties.

Jones was indicted for larceny at the Sept. Term, 1848, of the Green Circuit Court, and obtained a change of venue to Scott county. At the September Term, 1849, of the Scott Circuit Court, Jones was tried and convicted. After hearing a motion for a new trial, and overruling the same, the Court sentenced Jones to one year in the Penitentiary. Jones brings the cause to this Court, by writ of error.

<p>ERROR TO SANGAMON.</p> <p>A decree cannot be entered against infants, without proof to sustain the case.</p>

<p>This was a trial of the right of property, before a Justice of the Peace of Hancock County. White was the claimant under a chattel mortgage from Daniel Prentiss. Prior claimed the property by virtue of an execution in his favor, against Prentiss. The cause was taken to the Circuit Court of Hancock County, and was tried before Minshall, Judge, and a jury at September Term, 1850, when a verdict and judgment were rendered for the complainant, White. Pi’ior, by writ of error, brings the cause to the Supreme Court, and assigns for error, the admitting of the chattel mortgage, the notes and notiee on the trial in the Circuit Court, the refusal of proof of the delarations of Prentiss, giving improper instructions, and refusing to give instructions asked for by claimant.</p> <p>White introduced a chattel mortgage for the goods in controveisy, dated and acknowledged April 25, 1850, recorded April 27, executed by Prentiss, to him, with these recitals and conditions :</p> <p>1. Provided, fyc., that if the said Prentiss shall well and truly pay, &c.,to the said Joseph White, the sum of $200, according to the tenor of 3 several promissory notes, bearing even date herewith, and payable in manner following, to wit: One for $80, payable in two years, &e., with interest, &c., then this mortgage to be void, &c.</p> <p>2. A stipulation in the usual form, that Prentiss should retain possession, &c.</p> <p>3. But if the same, or any part thereof, shall be attached or claimed by any other person or persons, at any time before payment, or the said Daniel Prentiss shall attempt to sell the same, without the authority and permission of the said Joseph White, or his assigns, in writing expressed, then it shall and may be lawful for the said Joseph White, or his assigns, to take immediate and full possession of the whole of said goods and chattels, to his and their own use, &c.</p> <p>The mortgage was properly entered on the Justice’s docket. Three notes under the mortgage, were also offered in evidence. Claimant proved by the constable, a seizure under the execution of a portion of the property described in the mortgage, found in the possession of Prentiss. White also introduced a notice from him to the constable, that he, White, claimed the property seized upon, by virtue of his mortgage.</p> <p>Prior offered proof, as to the declarations of Prentiss, in reference to his object in mortgaging his property, &c., and also, that the notes produced on the trial in the Circuit Court, were different from those produced on the trial before the Justice of the Peace.</p>

This was an action upon a school commissioner’s bond, brought against the defendant in error.

The agreed case presented to the .Court for- consideration,, states that plaintiff sued defendant on two notes, given in 1836,. for the price of certain lots in Grafton, sold by Sarah Mason as-guardian, &c. The defendant, for defence, relied upon the want of title at the time of the institution of this suit.

This was a bill in Chancery, filed to obtain an account of partnership transactions. The proceedings under the bill, are fully stated in the opinion of the Court. The third exception, taken in the Circuit Court, to the report of the master, is that, • “ no report is made of the accounts between the parties on the partnership books.” The decree was pronounced by Minshall, Judge, at the March term, 1850, of the Brown Circuit Court.

This was an action of debt, brought against Henry M. Smith, and his sureties, on the bond of Smith as collector of Pulaski County. The facts of the case are stated in the opinion of the Court.

All that is necessary for an understanding of this case, is set out in the opinion of the Court. The decree was ordered by Harlan, Judge, at the October term, 1850, of the Cumberland Circuit Court.

Linton, as administrator of Nott, deceased, sued Anglin in the Clark Circuit Court, for the sum of $535 18, in an action of debt. The declaration avers that plaintiff resided in the county of Clark, at the time of the commencement of the suit. The process, which was a capias ad res: was issued to Coles county, and executed there. The pleadings were heard before Wilson, Justice, at May term, 1848. Linton sued out the writ of error.

<p>The facts of this case, are sufficiently stated in the opinion of the Court.</p>

This suit was first commenced before a justice of the peace, and taken by appeal, to the Sangamon Circuit Court. On the trial of the cause in the Circuit Court, the plaintiff below offered in evidence, a note, with endorsements as follows: Alton, Dec. 30th, 1842. $52 13. Six months after date, for value received, I promise to pay George Wilson, and Andrew Beard, fifty-two, dollars—this being for 12 per cent, interest on account of hogs bought. Hiram Penny.

This was an action brought on a bond executed by Compher, as collector of Peoria county. The other defendants were his sureties. The bond was executed on the 24th of Sept., 1849, and is in the usual form. The defendants pleaded, first: that on the sixth of Nov., A. D. 1849, the General Assembly of the State, without the consent of the defendants, changed the time for the rendition of judgment against delinquent tax payers.

The defendants in error sued Major, in the McLean Circuit Court, to recover an indebtedness due to them as co-partners. Major proved the payment of his indebtedness to Hawkes, one of the co-partners, after the publication of a notice of dissolution, by mutual consent. A verdict was found on the circuit, against Major, and he brings the cause to this Court by writ of error. The cause was heard before Davis, Judge.

This was a petition for Mechanic’s lien, by the defendant in error, Abel Harrington, against the plaintiff in error, Robert Dawson, filed in the Brown Circuit Court. The bill sets forth, that Dawson, by his agent, G. W. Robbins, engaged Harrington to work in a certain mill, which Dawson was building, Dawson to pay Harrington $1 83, per day. Bill alleges, that he worked one hundred days and had received thirty dollars, and thus there was still due $143 00.

After the decision of this case as reported in the 11th of Illinois page 254; on the case being remanded to the Circuit Court, the complainants, plaintiffs in error, filed a supplemental bill, to which answers were filed by all the respondents. But as the case turns exclusively upon the time, within which the bid-dings in controversy were offered, it is not necessary that the pleadings and proofs should be set out.

This application is grounded upon ¡the.following petition: “ That on the first day of January, A. D. 1851, your petitioner, being the legal holder of certain state indebtedness of the State of Illinois, other than the canal and school indebtedness of said state, to wit: Mew Internal Improvement Stock, to the amount of one hundred and seventy-one thousand eight hundred dollars, did, on said first day of January, present the same to the Auditor of the State of Illinois, Thomas…

This was an action of ejectment, commenced in the Peoria Circuit, for a small piece of ground in the city of Peoria, brought by appellee against a servant of the appellant, who was in possession. The lot claimed was a part of the land known as the French claims, being parts of lots 7 and 8 of Bigelow and Underhill’s survey. There is nothing peculiar in the declaration, plea, verdict or judgment.

This was an action of ejectment brought in the Peoria Circuit Court, to recover the possession of certain village lots in Peoria, being a part of the French Claims. The declaration and other pleadings are in the usual form. The action was brought against other parties by Mr. McFadden, but Gray was made defendant in their stead, he having admitted himself to be in possession of the premises, at the time of the commencement of the suit.

This was an action of ejectment brought in the Peoria Circuit Court, to recover possession of a lot containing 27,449 square feet and T|7 of a square foot, surveyed and designated as covered by claim number thirty-three, in the south west fractional quarter of section nine, in township eight north, of range eight east of the fourth principal meridian, Illinois, according to the survey approved first of September, 1840, by the Surveyor of the Public Lands, in the States of…

This cause was tried before Kellogg, Judge, and a jury, at the May term, 1851, of the Peoria Circuit Court. The facts connected with this trial are stated by the Court.

This was an action of assumpsit brought by plaintiff in error, against defendant in error, at November term, 1849, La Salle Circuit Court, Spring, Judge of the Cook County Court, presiding. The case was submitted to a jury for trial, when a verdict was found for the defendant. A motion for a new trial was overruled. Bill of exceptions shows that on the trial, the plaintiff read the note declared on in evidence, and rested his cause.

The County of La Salle sued the Town of Ottawa in assumpsit, to recover for licenses which had been granted for selling liquor, &c. It was agreed that the sum of §312,50 had been received by the town from divers persons for such licenses, in the years 1847 and 1848. That this sum had been demanded, and payment thereof refused. That the county of La Salle was organized under the law of 1849, providing for township organization.

This was an action of assumpsit commenced in the Peoria Circuit Court, by William H. Fessenden against Francis P. Kingsley. During the pendency of the action Fessenden diedr and John Hamlin, as Administrator, was substituted as plaintiff in the suit. The action was founded upon a promissory note given by Francis P. to George 0. Kingsley, and by George 0. Kingsley endorsed to Fessenden in his lifetime. The plea of F. P. Kingsley sets out, that at the request of George 0.

This action was tried at March term, 1851, before T. L. Dickey, Judge, and a jury, when a verdict was found and a judgment rendered for the plaintiff.

This suit was brought by Taylor against Crook on three promissory notes payable to Taylor, and signed “George A. Crook, per George Spurck.” Crook pleaded the general issue and denied the execution of the notes under oath. George Spurck, who had executed the notes for Crook, was called as a witness by the plaintiff, and being objected to as incompetent, was sworn touching his interest. He testified, that he signed the notes for Crook, and had. authority so to do.

This was an action originally commenced before a justice of the peace. From his decision, an appeal was taken to the Circuit Court of Jo Davies, and came on for trial, without the intervention of-a jury, before Sheldon, Judge, at the March term, 1850, of said Court. An issue was found for appellant, and a judgment was rendered against Foster, for the sum of thirty-three dollars, and seventy-three cents. A motion for a new trial was overruled.

Oarleton & Oo. commenced their action in assumpsit, in the Jo Davies Circuit Court, by attachment against George Cribb, a non-resident. Held: subject to the order of the Circuit Court of Jo Davies, if he was, under the circumstances, bound to pay that sum as garnishee, to Oarleton & Co. A judgment was rendered in favor of Oarleton & Co., against Cribb, in the Jo Davies Court, at May term, 1850.

This was an action of covenant, brought by the City of Chicago on a bond given by Ross, who had been elected Marshal of the City of Chicago, as principal, and the other defendants as his sureties. The declaration alleged a breach of the covenant, in two several counts. Several pleas were filed, upon which issue was joined.

This was an action of assumpsit on the common counts, for work and labor, brought by appellee against appellants, to recover wages due liim for sailing the steamer Pacific, as Captain. During the progress of the trial, the defendants in the Court below, introduced the Harbor Master of the port of Chicago, as a witness to show that the plaintiff managed the vessel unskillfally, in order to reduce the amount claimed.

This was an action of assumpsit brought by the defendants in error in the McHenry Circuit Court. Several pleas in addition to the general issue, were filed by the defendants; to the special pleas, demurrers were filed, which were sustained by the court, and the defendants standing by their pleas, judgment was rendered for the plaintiffs for the sum of $530 42, without any notice of the issue joined upon the plea of non-assumpsit.

This was an action of assumpsit, brought by Rattle in the Circuit Court of Mo Henry county. The declaration contained a count upon an endorsed note, and the common counts. The process issued against John E. Dow, and William Dow. The return showed service on John E. Dow, William Dow not being found.

This was an action of trespass; brought by the plaintiff against the defendants in the Winnebago Circuit Court. The declaration alleges, that the defendants forcibly entered the house of the plaintiff; and carried him therefrom, maltreated in many respects-, and finally covered him with tar and feathers. To this declaration, the plea of not guilty was interposed and issue was joined.

This was an action of replevin in the Lake Circuit Court, brought by plaintiffs in error, and tried before Dickey, Judge, and a jury, at October term, 1850; and a verdict and judgment for the defendant. ■ Damages for $15.85' with costs, and a return of the property replevied, were awarded by the judgment. A motion for a new trial was overruled, and a bill of exceptions taken.

This was a judgment by confession, entered at the April term, 1850, of the McHenry Circuit Court, Henderson, Judge, presiding.

McGhee sued Wilcoxon in the Stephenson Circuit Court, in an action on the case. The declaration contained three counts. The first count charged the defendant with having maintained, kept up and continued a mill dam across Eichland Creek since the first day of October, A. D. 1846, causing the water to overflow the plaintiff’s land, describing it.

This was an action of trespass, originally brought by appellee against the appellant, before a justice of the peace, to recover a penalty under the statute for taking property under an execution against the ajspellee, which was exempt from execution. The case was taken into the Circuit Court of Woodford, by appeal, and a trial by the Court, Davis, Judge, presiding, without a jury, and judgment rendered against said appellant, for $99 00 and costs, at April term, 1851.

This was an application to the Supreme Court for a peremptory mandamus. Held: and the officers have been elected, qualified and commissioned, and are discharging their duties.

This action was brought in the McIIenry Circuit Court, by Cross against Dufield; and was tried before Henderson, Judge, and a jury, at April term, 1850; and resulted in a verdict and judgment in favor of Cross, for the sum of §160.00. The facts necessary to a full understanding of the opinion of the Court, are set forth in it.

The facts of this case, and the judgment rendered upon it, will be found, ante page 184.

This was a proceeding by petition, on the part of the city of' Chicago, for the purpose of widening an alley, into a street eighty feet in width.

This action was commenced before a justice of the peace, and appealed to the Circuit, at the trial in the Circuit Court, before Sheldon, Judge, at September term, 1850, a jury being waived, the appellee, plaintiff below, offered, an assigned note in evidence, which was objected to, on the ground that it was assigned after it became due, and because it was a partnership transaction, for which one of the partners had given a receipt, which would defeat the assignment.

This action of ejectment was tried at the March term, 1850, of the Peoria Circuit Court, before Kellogg, Judge, and a jury, and resulted in a verdict and judgment for the plaintiff below. The defendants below, sued out this writ of error. The lot sought to be recovered, was number four, in block fifty, of Bigelow and Underhill’s Addition to Peoria.

This cause was heard before Kellogg, Judge, and a jury, at May term, 1851, of the Peoria Circuit Court, verdict and judgment for the defendants in the Court below. Plaintiff below, brings the cause to this Court.

This was aa action of assumpsit in the Cook County Court of Common Pleas, brought by Schuttler against Piatt, to recover from the latter the amount of a promissory note given by one Armstrong, to him or order, and endorsed by Piatt to Schuttler. At February term, 1851, of the Court, Spring, Judge, presiding, the cause was submitted to him, without the intervention of a jury, and a verdict and judgment was entered for the defendant. Schuttler thereupon appealed to this Court.

This was an action of ejectment, brought in the Peoria Circuit Court, and tried before Kellogg, Judge, and a jury, at May term, 1851, of that Court. The jury found Ballance guilty of withholding possession of the undivided one-fourth of the lands and tenements described in the declaration, and that the title of the plaintiff to that undivided fourth part is a fee simple title.

This was a bill in chancery, filed in the Mason Circuit Court by defendant in error, and alleges in substance, that in the year 1835, Drury S. Field, father of complainant, then residing in Fayette County, Tennessee, entered into an agreement with Holmes, the plaintiff in error, to famish him with $12,500.00, to be expended in entering land in Hlinois; Holmes to enter the lands, and bear Ms own expenses; and after the entering thereof, the lands to be divided—one-fourth to…

This case was decided at Ottawa, at June term, 1850, and was reported in the 11th Illinois, p. 603 ; at the succeeding June term of the Court, in 1851, a petition for a rehearing; the case having been decided on the last day of the preceding term, was presented, and the prayer was allowed. At that term, the case was again argued, and the following opinion was pronounced.

This was an action of ejectment commenced by Voris and another, in the Peoria Circuit Court, to recover possession .of lot seven, in block twenty-eight, in the city of Peoria. The pleadings are in the usual form. At March term, 1850, Kellogg, Judge, presiding, the cause was tried by a jury, which found the defendant, Thomas, not guilty of the trespass or ejectment laid to his charge.

This was an action of trespass on the case, for breach of promise of marriage. The plea denied the promise and undertaking.

Joseph J. Jared sued Foster in assumpsit, on a promissory note.

Leonard brought an action against Hough, before a justice of the peace. The summons was in the usual form,, on which was indorsed, “demand fifty dollars, justice's fee 75, constable’s fee, 30. A judgment was rendered against Hough, after a trial, for fifty dollars and costs. Hough appealed to the Circuit Court.

This was an action of covenant, brought in the Putnam Circuit Court by the plaintiff in error, as executrix of William Smith, against Dysart. The defendant pleaded, seven pleas. To the first, second, third and fourth, there was a replication and issue to the country. To the fifth, sixth, and seventh pleas there were demurrers, which were overruled. The fifth plea alleges, that plaintiff is not executrix.

This was an action brought by appellee before a justice of the peace, and taken by appeal to the Circuit Court of Tazewell county.

This was an action on promises, tried before Hon. Hugh Henderson and a jury, at the December special term, ] 850, between the appellee plaintiff and the appellants defendants, which resulted in a verdict and judgment for the appellee. The declaration was upon two promissory notes'made by the defendants. First plea. General issue. Second plea.

This was an action of assumpsit, brought in the Jo Davies Circuit Court, by Robert S. and James M. Harris, against Orrin Smith and others, on a promissory note.

This was an action of replevin, brought in the Marshall Circuit Corirt, Low, the plaintiff below, took a change of venue ¡to Stark county. The action was founded upon the contract set out in the opinion of the Court. The defendants filed two pleas, first, that they did not wrongfully detain, &c.; second, property in themselves. The cause was tried before Kellogg, Judge, and a jury, at ¡November term, 1850.

This was an action of forcible detainer, originally commenced before a justice of the peace, of Peoria county, and afterwards brought into the Circuit Court of said county, by appeal; and a trial was had at the September term of said Court, A. D., 1850; which trial resulted in a verdict and judgment against said plaintiffs in error, who were defendants below, for the possession of the property described in the petition.

This was an action on the case for not delivering goods, received by Moss as a common carrier. Plea, general issue, with notice that Moss would prove that he was prevented by the act of God, from delivering the goods. Lowe proved the ownership of the goods, and their shipment on board of the boat of Moss, in good order and condition.

The town of South Ottawa, brought an action in the La Salle Circuit Court, against the board of supervisors of that county, to recover the sum of one hundred dollars, for the support and care of a pauper, from June 1st, 1850, to March 25th, 1851. A jury was waived, and the cause was submitted to the Court for trial. T. L. Dickey, Judge, presided, the finding was for the plaintiffs, damages assessed at fifty-two dollars and fifty cents,, and a judgment accordingly.

This was a bill filed by the administrator and administratrix of the estate of Henry Schneider, deceased, showing that at April term, 1849, a decree obtained against Terah B. Farnsworth, ordering and adjudging that he should pay them in their representative capacity, $187 50, and costs of suit, for pay and compensation for a building and improvements, put upon lot twenty-two in the town of Galena, by said Schneider, in his life time.

Brainard filed his bill in the Cook County Court, setting forth that in October, 1841, one James H. Scott obtained from the agent of the canal lands a permit or right to occupy the north-west quarter of section twenty-one, in township thirty-nine, north range fourteen, east of the third principal meridian, at which time he executed a bond to the State, in the penalty of one thousand dollars, conditioned as the law directs.

This was a bill in chancery, filed by Dyer and others, to secure the pre-emption right to the south-east fractional quarter of section twenty-one, in township thirty-nine, range fourteen, east •of the third principal meridian, being canal land. The points of •discussion in this case, were precisely the same as those raised in the preceding case of the Canal Trustees v. Brainard.

<p>In the year 1835, Joseph Duncan, whose representatives are the defendants in this case, became one of the sureties of William Linn, receiver of public moneys- at Vandaba, in this State The principal having failed to comply with the duties imposed on him by law, the sureties became liable on the bond given to the United States.</p> <p>At the June term, 1841, of this Court, the United States recovered three several judgments at law, against the sureties. Duncan among others, for the aggregate sum of $29,191 05. At the time these judgments were obtained, none of the sureties, except Duucan, had any available property, and Linn, the principal, was insolvent.. On the 22d of December, 1843, the United States realized on these judgments, the sum of $23,532 65.</p> <p>In January,'1844, Joseph Duncan died, disposing, by will, of his real and personal estate, but making no provision, other than the usual one' for the payment of his debts, for the amount due the United States. At the time of his death, he was seized of a great many tracts of land lying in different counties of this State and in Morgan county, his place of residence.</p> <p>It was conceded that the judgments of 1841, rendered in this Court, were a lien on all the real estate of Duncan, within the State, that the decree of June term, 1848, operated to the same extent, upon the real estate in the hands of the heirs, devisees executors, &c., of Duncan ;* and that the judgments of the Morgan Circuit Court, operated only upon real estate within the county of Morgan. The judgments and decree entered in the Circuit Court of Morgan county, are yet in force, not being paid or satisfied, except some partial payments hereafter mentioned.</p> <p>Joseph Duncan, at the time of his death, did not possess sufficient property, including real and personal, to discharge the debt he owed the United States, the lands out of Morgan county, not bein' of value enough to satisly the decree of June term, 1846. And it does not appear that there was more than sufficient property in Morgan county, to meet the balance due on the judgments of 1841, of this Court.</p> <p>The petition of Matthews is, in all respects similar to that of McConnel et al.</p> <p>On the 23d of December, 1847, Doremus & Nixon, and A. Ransom, & Co. likewise filed a petition setting forth most of the facts hereto 'ore mentioned, and alleging that this Court had taken full administration of the estate of Duncan; that their decree of the Morgan Court of November, 1847, had been rendered useless; that there was no priority of payment to the U. S. till the estate was ready to be disbursed; that taxes and costs of administration were to be first paid; that under the circumstances they stood as the State and individuals, and were elected with then- rights; that there was more real estate to be sold, and their partnership fund had increased the amount to be disbursed in this cause, and asking that their decree be paid out of moneys received from the sale of real and personal estate, or, if that be not proper, that the commissioner of this Court be ordered to sell land enough to satisfy the sum named in their decree, and pay it over to them.</p> <p>The petition of O’Donoghue, which was filed on the 10th of January, 1849, states that he bad purchased a lot of land at a. sale made by the commissioner in this cause, which lot was sold as a part of the estate of Duncan; that he paid the commissioner for it, and that Duncan had no title to it, having before his death by deed duly recorded, conveyed it to the Illinois College. And he seeks to have the sale by the commissioner to him annulled, and to have the money paid by him reimbursed out of the fund in Court.</p> <p>On the part of the petitioner, the Court was referred to Lansing v. Quackenbush, 5 Cowen, 38; a case where the defendant had represented he Avas the owner of lots, Avhich the party purchased, and it turned out he Avas not. On application to the Court, they said there was a remedy, but that it was in equity. Here was a false statement, and if the plaintiff were not a party to it, the remedy would be against the defendant. Adams v. Smith, 5 Cowen, 280, was also referred to. In this- case, the sheriff had sold personal property Avhich did not belong to the defendant, and the real owner sued the sheriff and plaintiffjointly and recovered. The Court allowed the amount made on the sale, and endorsed on the execution, to be stricken out, and an execution to issue for the amount of the original judgment. In this case, it Avas personal property, and the owner resorted to the remedy which the laAV gave him, the property remaining with the purchaser. Both cases are very shortly reported and clearly distinguishable from the present. But the Supreme Court of Hlinois have held under somewhat similar circumstances, there was no remedy against the plaintiff in the execution. A party purchased some property under an execution. A stranger sued for and recovered the property from the purchaser. The latter then brought suit against the plaintiff in the execution, to recover back the purchase money. The Court decided that the plaintiff was not liable. England v. Clark, 4 Scam., 486. These were all cases of personal property, but in a sale of real estate under execution no action is brought, because if the property of A. is sold on an execution against B. the title to the property is unchanged, and A. ordinarily suffers no wrong.</p> <p>Let us now proceed to consider the petition of Doremus & Nixon, and A. Ransom & Co. They insist that, inasmuch as there was a partnership between James M. and Joseph Duncan, and the executor of Joseph Duncan, had used the partnership goods to pay the taxes on his real estate, and the expenses of administration, they, as creditors of the partnership, have a right to be repaid out of the fund in Court.</p> <p>It has been decided that the priority of the United States does not reach the property of a partner in partnership effects. so as to pay the separate debt of one of the partners, (he being the debtor of the United States,) where the partnership property is not sufficient’ to pay the debts of the firm. U. S. v. Hack, 8 Peters, 271. But that proceeds upon the presumption that they are partnership effects. It is plain, if they had ceased to be such, and had become the separate property of the one indebted to the United States, the doctrine would be different. The true test would seem to be, whether the property belonged to the firm or the individual.</p> <p>Now it is to be remarked, that these petitioners did not ask the Court of Morgan county to do more than to declare the partnership, and to decree the payment of the partnership debt, out of assets which were at that time, or thereafter to be, in the hands of the administrator. They claimed at most, not a lien on the estate, but a priority of payment out of the estate. And the Court, though it expresses the opinion, that the proceeds of the partnership effects were liable to the debts of the petitioners, wherever they could be traced, decides they were to be paid out of the estate of the testator. Accordingly, in whatever light we may regard this decree of the Circuit Court of Morgan county, it is clear it intended that payment of the debts was to be made out of Duncan’s estate, when there should be sufficient assets for that purpose in the hands of the administrator. The Court does not even decree that the petitioners shall be first paid; but there is an alternative, that they may be paid when the administrator, upon the settlement of his accounts as such, shall have money then remaining in his hands. The decree did not create any lien, specific or general, upon any fund, nor upon the real estate of the testator, as it probably could not; and it does not vary essentially from the usual judgment against an administrator, for the debt of a deceased party.</p> <p>At the time of Joseph Duncan’s death, his indebtedness to the United States, except the balance due on the judgments at law of this Court of 1841, did not constitute a lien upon his real or personal estate. The plaintiffs had only a right to a priority of payment. And it may be admitted, for the purpose of this argument, that their priority did not extend, in point of law, so as to operate upon the real estate of which Duncan died seized, in the hands of heirs or devisees. But at the time the petitioners filed their bill in the Circuit Court of Morgan county, there was a judgment of this Court against William Thomas as the administrator, with the will annexed, &c., of Duncan; and at the time the final decree was rendered in the Circuit Court of Morgan county, there was, and had been, for more than a year, a decree standing in this Court, which took effect upon all the real estate of Duncan within the state, and directed it all to be sold for the payment of the debts of the United States, first paying prior liens. When this decree was rendered, in June, 1846, the claims of the petitioners were certainly not a prior lien, binding the estate. If, then, we give effect to the decree in the State Court, we are not the less bound to give full effect to the judgments and decree in this Court; and we will now proceed to show, that it must be considered subject to those of this Court; that under the law and by virtue of the proceedings here, the decree of the Circuit Court of Morgan county could not become operative until the claims in this Court were satisfied.</p> <p>The doctrine that where a man owns different parcels of land, and transfers some of them, himself also retaining some, all the parcels being subject, before the transfer, to a general incumbrance made by him, the part which he still retains shall be applied to the payment or discharge of that general imcumbrance, rather than that which he has transferred, is founded on the plainest principles of equity. It would he manifestly unjust that those persons to whom he had made transfers, should be compelled to pay off the incumbrance, when he held land which would satisfy it. Accordingly, it has been held, under such circumstances, that the property transferred is only liable, in the event of the part remaining in the owner not being sufficient to discharge the incumbrance. On the other hand, the doctrine already mentioned, as settled in New York, that land consisting of different parcels, subject to a general incumbrance, is in equity to be charged in the inverse order of the alienation of the several parcels, has been sometimes questioned, and Judge Story thinks it is not maintainable upon principle; and inclines to the opinion that there should be contribution, in such cases, according to the relative value of the estates. Story’s Equity Jurisp., §§634 a, 1233 a.</p> <p>In that case, the owner of the parcels of land—one at Coxsakie, the other at Redhook—having encumbered both by judgments and eách by mortgages, on the 28th of May, 1840, mortgaged the Coxsackie property, and on the 7th of July following mortgaged it again to another person. On the 9th of June, of the same year, he mortgaged the Redhook property, and again on the 12th of the same month, this last being given to the same person that held the mortgage of the 7th of July on the Coxsackie property. On the 3d of June, 1840, a judgment was docketed, which was a lien on both. ■ The parties who held the mortgage of the 7th of July on the Coxsackie property, and those who held the mortgage of the 9th of June on the Redhook property, at different times and in different Courts, filed bills for foreclosure, and at different dates obtained the usual decrees for' sale of the property, the master having reported as to the priority of the several liens. On the 2d of March, 1841, the Red-hood property was sold for an amount sufficient to satisfy all the hens on it prior in point of time to the mortgage of the 28th of May, 1840 on the Coxsackie property. On the 23d of March, 1841, this last property was sold for an amount not sufficient to pay the costs of foreclosure and the mortgage of 28th of May, if the previous judgments, as well as the prior specific liens on that property, were paid out of such sale. Under these circumstances, the holder of the mortgage of the 28th of May made application to the Court for a modification of the original decree so as to throAV the judgments on the surplus proceeds of the Redhook property, after satisfying all liens thereon prior to his mortgage. The Court alloAved the application, on the ground that as the Redhook property was more than sufficient to pay all liens on it prior to the date of the applicant’s mortgage, in case the judgment creditors, who held liens at that time, sought to enforce them on the Redhook property, if the applicant paid them, he would have a right in equity to insist on an assignment of them, so that he might have a repayment out of the surplus proceeds, in preference to those who had liens on that property accruing after the date of his mortgage. For instance, the judgment creditors had hens on both properties, when his mortgage was taken on one. (Coxsackie.) If, in enforcing those liens, it would prejudice his mortgage, he would have a right in equity to compel them to go upon the Redhook property, because, certainly, he could be in no better position by taking an assignment of the judgments, than those who held them. Let us suppose the case put, had actually happened; that the applicant had purchased the judgments; then he would be the holder of judgments binding on both properties, and of a mortgage on one. The doctrine of the Court is, that in this condition, he could go upon the Redhook property to satisfy his judgments, in preference to one who had a lien on that property accruing after his mortgage. The Court illustrated it by saying, if there had been a mortgage on both properties, and it had been forclosed, the decree would require the property to be sold separately, and the proceeds so to be marshalled as to pay general liens on the whole out of that part of the fund arising from the sale of the Redhook property, thus far giving the applicant the benefit of his priority on the Coxsackie property, over a subsequent incumbrancer of.' the Redhook property.</p> <p>The case of Schry ver v. Teller, if we admit that it was rightly ruled, must be regarded as deciding that a general lien will be thrown upon a particular parcel of land so as to give a party having a mortgage the benefit of his priority over subsequent incumbrances, either of the whole or a part; that is, where the question is dependent upon priority of time alone. But it does not follow that this would be the rule where there is a priority of right, that is in a case where the parties, as such, do not stand upon an equality of right.</p> <p>The application was presented in this case, after a levy had been made by the United States, upon lands in Morgan county, under executions issued on the judgments of 1841. The lands were sold and the moneys appropriated upon those judgments, •subsequefit to the filing of the original petitions, as appears by the supplemental petitions. This Court did not interfere with the proceedings under the executions, but suffered them to continue, and directed that there should be reserved a sufficient fund to meet the claim of the petitioners, from what might be made by the sale of lands in this case. The rights of the petitioners ought, perhaps, for that reason, to be considered the same as if the money arising from the sale of the Morgan lands had been paid into Court, subject to its order herein. And, apparently; it should be governed by the same principles as if the petitioners, instead of pursuing the course they have, had applied to a court of equity to restrain the proceedings on the executions, waiving for the purpose of the supposed case, all objections on account of sovereignty, and the United States had come and given, in answer, the decree of 1846; the indebtedness of Duncan’s estate; in fine, stating all the facts and claiming a priority of payment under the law.</p> <p>•The petitioners had taken out executions on their judgments, within a year after they were rendered; on one some real estate, not in question here, had been sold; on the other, a small payment had been made; as to the balances due on them respectively, the judgments became general liens.</p> <p>This case was particularly examined and reviewed in Conard v. The Atlantic Insurance Company. It is there said, that Thelluson v. Smith was a case where a judgment creditor sought to recover the proceeds of a sale of land made under an adverse execution, on the ground that he had a general lien by judgment on the land; and in such, circumstances the action was not maintainable. The real ground of the decision, the Court says, was, that the judgment creditor had never made his lien specific; that he had no title to the proceeds as his property; and if they were to be deemed general funds of the debtor, the priority of the United States attached; that a mere lien on land did not convey the legal title to the proceeds of a sale, made under an adverse execution: the ease did not establish the principle, that a specific lien could be displaced by the priority of the United States; because that priority was not, of itself, equivalent to a lien. Judge Johnson, in his separate opinion, says, that he never acknowledged the authority of the case of Thelluson v. Smith, on the point supposed to be decided by it—the precedence of the debt of the United States, as to a previous judgment, in the ease of a general assignment; and that he concurred in it, only because of the want of priority between the parties. He thought the sale of the Sedgeley estate under the execution was a nullity, because the assignment of Crammond divested all Ms interest, so as to place it beyond the reach of the execution issued on the judgment of the United States. Suppose, however, the assignees in whom the estate had vested—admitting it had vested—had sold it notwithstanding the lien; then, according to my understanding of the case of Thelluson v. Smith, even as corrected and explained in Conard v. The Atlantic Insurance Company, the proceeds of the sale in the hands of the assignees, would have been subject to the priority of the United States. As, in this case, if the lands in Morgan county had been sold by the executors or administrator, under the authority of the will or of the law, the proceeds would have been liable, not to the judgment creditors, (the petitioners,) but to the United States; it being understood in all such cases, that the executor or administrator in whose hands the proceeds were, had notice of the debt due the government.</p> <p>In Conard v. The Atlantic Insurance Company, the Court are careful to say, the priority of the United States does not affect any specific lien; but in the ease of Brent v. The Bank of Washington, 10 Peters, 596, the Court state, that it has never been decided that the priority of the United States affects any lien, general or specific, existing when the event happened which gave them priority.</p>