Dodge, Adm'r, etc., v. Mack. time of the deceased, in each of these cases, the property thus bound may be sold after the debtor's decease, in satisfaction of the debt. In each of these cases the creditor has acquired a lien, and the specific property has been appropriated either by the debtor, or by the law, for its satisfaction, and the death of the debtor can in nowise affect the rights of the creditor. Then does the lien acquired by a delivery of the fieri facias to the officer, bind the property at all events, or only upon the condition that a levy is made in the lifetime of the defendant? The 8th sect., chap. 57, R. S. 1845, provides that no execution shall bind the goods and chattels of any person, against whom such writ shall issue, until it shall be delivered to the sheriff, or other officer, to be executed, and this section is a transcript of the 16th sec., 29 Car. 2, ch. 3, and under that statute the decisions of the English courts have been uniform, that, when execution has been delivered to the sheriff in the lifetime of the defendant, the officer may proceed to levy and satisfaction although the defendant may have died before any other steps were taken. Parsons v. Gill, 1 Ld. Ray. 965; Odes v. Woodward, 2 ib. 850; Robinson v. Yonge, 3 P. Wm's. 398; Lord Kinnaird v. Lyall, 7 East, 296; Bragner v. Langmead, 7 T. R. 20; 2 Bac. Abr., title Execution, C. 4. The construction given to the 29 Charles the 2d, is that the provision was intended to protect purchases, but in no way affected the rights of the parties to the judgment. And this was the obvious intention of the legislature in adopting the 8th section of the 57th chapter of the Revised Statutes. The lien created by the first section of that statute, on real estate, by the 37th section of the same chapter is not destroyed, but is only suspended, by the death of the defendant, for one year, when a sale may be had by giving notice to the executor or administrator in the manner prescribed. The issuing of an execution and placing it in the hands of the proper officer, by which the lien on the property subject to execution is perfected, is the commencement of execution, which being an entire thing, may be completed by levy and sale after the defendant's death. And while it is true, that the executor or administrator takes the property as such, by grant of letters, it is subject to liens and in the same situation in which it was held by his testator or intestate. If it is incumbered by chattel mortgage, a pledge or other lien, he takes the title subject to such burthens. The death of the debtor does not discharge the lien. If a levy or sale were made before the death of the defendant, it will be conceded, that, the death of the defendant would not stop the officer from making a sale on the levy, or paying over the money realized on the sale, and yet the title to the property in the one case, or the money in the other, would Riley v. Loughrey, Adm'r, etc. not be vested in the plaintiff. The title in the property or the money would vest in the executor or administrator by grant of letters, but it would be subject to the payment of the debt for which it had been levied. It would be in the custody of the law, until sold, and the money paid over, and the personal representative would be entitled to any balance. And as the lien had as fully attached under the execution, as if a levy had been made, or a mortgage given, or a pledge perfected, no reason is perceived why the 115th section of the statute of Wills should destroy this lien, and require the judgment to be satisfied out of the assets as other debts, any more than it does these other liens. And we cannot see why, if this lien created by a delivery of execution to the officer, is held to have been destroyed by the defendant's death, as being within the statute of Wills, that the same should not be held of all mortgage and other specific liens of every description, which would be manifestly against the legislative intention. That act undoubtedly did intend to prevent preferences of any other kind than those therein specified, if the creditor resorted to the probate court, for a satisfaction of his debt. That court could not regard such lien, but could only direct the payment as that of any other claim, falling within the same class, and the claimant would have to look to his other securities, to acquire a preference. The law favors the vigilant, and will not postpone the prior in right, even to a superior equity. But in this case, it is a question between the judgment creditor, and the administrator acting for the benefit of all the creditors and distributees, who have not a superior equity, and are subsequent in right, and have no right to defeat this creditor or even to postpone his remedy. We are for these reasons, of the opinion that the levy of the execution on these goods was regular, and that the court below committed no error in refusing to quash the execution and levy, and that the judgment must be affirmed. Judgment affirmed. 98 38a 339 PAUL RILEY, Appellant, v. ANDREW LOUGHREY, Administrator of the Estate of Mary Loughrey, Appellee. APPEAL FROM BUREAU. It is no defense to an action on a note, that it was given to the payee in lieu of three other notes, given to the husband of the payee. The widow might be acting as executrix, in her own wrong, or might be the heir; in either case the notes surrendered would be satisfied. Riley v. Loughrey, Adm'r, etc. When there are several counts in a declaration, and a special plea with the plea of nil debet, it is error on overruling a demurrer to the special plea, to proceed to render judgment upon the cause of action. THIS was an action of debt, commenced by appellee against appellant, in the Circuit Court of Bureau county, to the January term, 1858. Appellee filed his declaration in the case, containing three special counts, and the common counts. The special counts are on a sealed note, alleged to have been given by the appellant to Mary Loughrey, the intestate, on the 16th of February, 1852, for $184.18, with interest at ten per cent. from date. The common counts are for money had and received, etc., to the use of Mary Loughrey, the intestate; and declaration concludes with averments of the issuing of letters of administration on Mary Loughrey's estate to the plaintiff. Defendant filed four pleas with notice of set-off, to wit: First, nil debet, and three special pleas. The plaintiff demurred to all the pleas, and the court sustained the demurrer to the special pleas, and the defendant asked and obtained leave to file amended pleas, and at the September term, 1858, he filed an amended special plea to the first, second and third counts of the declaration, alleging that the notes mentioned in said counts were one and the same, and that the note was given without any valid consideration whatever; that the note was given under the following circumstances: that in 1848 defendant gave his three several notes to one Loughrey, husband of the said Mary Loughrey, which amounted to $300; that said notes were given for a valuable consideration, and remained in the hands of the said Loughrey, as his property, from the time the same were given, until his (L.'s) death, which occurred in 1853; that no letters of administration or testamentary were ever issued upon the estate of said Loughrey, and that after his death, the notes came to the hands of said Mary Loughrey, without any legal right or title to the same; and that while said. notes were so wrongfully in the hands of said Mary, she having no title to the same, the defendant renewed said notes, and attempted to cancel the same by giving to the plaintiff the note sued on, in lieu of said three old notes; that the consideration of said notes sued on, in the declaration, was the said three notes, made to said Loughrey, and no other consideration; and that defendant is still liable for the amount of said three notes to the representatives of said Loughrey's estate, and that said. Mary Loughrey, of whose estate plaintiff is administrator, had no legal right to cancel the old notes above mentioned, and de Riley v. Loughrey, Adm'r, etc. fendant is still liable to pay the amount of said old notes to the legal representatives of said Loughrey, deceased, etc. To this plea plaintiff filed a demurrer, assigning as a special cause that it stated conclusions of law and not facts. The court sustained the demurrer, and the defendant abided by his plea, and withdrew his plea of the general issue, and notice of set-off. The court, without the intervention of a jury, and without any order to the clerk to assess, and without the cause having been submitted to the court, or a jury waived, considered that plaintiff ought to recover of defendant $184.18, debt, and $121.24, damages, for the detention of the same, and rendered judgment against defendant for $184.18, debt, and $121.24, damages and for costs. The defendant prayed an appeal, which was allowed. The errors assigned are as follows: 1st. The court below erred in sustaining the demurrer to appellant's amended plea. 2nd. The court below erred in rendering judgment without the intervention of a jury, and without an order to the clerk to assess. 3rd. The court erred in rendering said judgment in manner aforesaid. W. H. L. WALLACE, for Appellant. PETERS & FARWELL, for Appellee. BREESE, J. The amended special plea sets up no legal defense to the action on the note, even if it was well pleaded. A surrender by the widow of the payee of the notes, and taking the note sued on to herself, would be good and binding on the appellant for quo ad hoc, she may be regarded as an executrix de son tort. Whatever is honestly done by one acting in that character, and not contrary to law, is binding between the parties. A settlement made in good faith with such an executor is valid. Bacon's Abr., Executors and Administrators, 27; Hawkins v. Johnson, 4 Blackf. 21. But there is another ground on which her title may be based. The plea does not allege there were any children of the marriage, or creditors, and we will intend therefore, there were none. The widow then, is the heir to all the personal estate of the intestate, choses in action included. Being such statutory heir, her right to the notes is unquestioned, and her surrender of them and taking the note sued on in place of them, cannot be disputed. There being other counts in the declaration besides the special count on the note, and the plea of nil debet having been pleaded, Garfield v. Douglass. it was error for the court on overruling the demurrer to the special plea, to give judgment in chief, and assess the damages. The issue presented by the plea, should have been tried by a jury, and the damages assessed by them. For this error the judgment is reversed and the cause remanded for further proceedings, in conformity to this opinion. Judgment reversed. JAMES W. GARFIELD, Appellant, v. JOHN G. Douglass, Appellee. APPEAL FROM LA SALLE. The entry of a justice of the peace, in his docket, cannot be controverted by parol testimony; the record is more trustworthy than parol testimony. If the justice acts corruptly, he can be made to answer, criminally and civilly. THIS suit was commenced before a justice of the peace. The plaintiff's cause of action was the following note: La Salle, June 14th, 1854. "$100. Eight months after date I promise to pay to the order of John Coles, one hundred dollars, without defalcation, for value received, at the Bank of Heman Baldwin. J. W. GARFIELD." The note was endorsed to plaintiff. Garfield denied the execution of the note, by plea in writing, under oath, and also insisted that a former suit tried before that time, between same parties, was a bar to this suit. The justice decided in favor of Garfield, and Douglass appealed to the Circuit Court. Defendant gave in evidence a transcript from the docket of Edwin R. Moffatt, police magistrate of the city of La Salle, in said county, which was as follows: "JOHN G. DOUGLASS vs. Nov. 25th, 1855. Summons issued JAMES W. GARFIELD. |