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Opinion of the Court.

To reverse this judgment, the defendants bring the case here by writ of error, and assign several errors: First, that the writ is defective, and did not authorize a judgment upon it; second, that the record shows, that before the institution of the suit, Darius Small had transferred and assigned the note and mortgage to Isaac Small, thereby parting with all his interest therein, and therefore was not entitled under the statute to the writ of scire facias to foreclose the mortgage; third, that it was error to render judgment against Elizabeth Camp; and fourth, that the amount of the judgment greatly exceeds the principal and interest of the note.

On this last point it is sufficient to say, there is no evidence preserved in the record except the note and mortgage, on which the verdict was found. The note bore interest at ten per cent, and was payable with exchange on New York. To what that may have amounted, we have no means of knowing, as the evidence is not preserved. In its absence, we must presume proof was made of the amount due for exchange.

On the point that judgment was entered against Elizabeth Camp, this court said, in Gilbert and Wife v. Maggord, 1 Scam. 471, on a similar objection being made, that we perceive no good reason why she, having signed the mortgage, should not have been made a defendant in the proceeding. On the contrary, there appears to be irresistible reasons why she should be joined and made a co-defendant, as she was one of the mortgagors, and it was necessary, to foreclose her equity of redemption and right of dower, that a judgment should pass against her. The judgment is not in personam, but in rem, and is only for the sale of the mortgaged premises to satisfy the debt, damages and costs of suit. To the same effect is the case of Wright v. Langley, 36 Ill. 381. In that case, which was in equity, a decree was taken, ordering and adjudging that the defendants, of whom the wife of mortgagor was one, pay to, and for the use of complainant, the sum found to be due on the mortgage to the master in chancery. It was held, it was not a personal decree upon which the mortgagor would be liable, nor could an action and recovery at law be had against her on the

Opinion of the Court.

decree. This judgment in this record is nothing more than a judicial ascertaining of the amount due, to pay which the mortgaged premises can alone be sold. The .wife can never be molested by reason of it.

On the second point, the assignment of the note and mortgage did not prevent a foreclosure by scire facias, in the name of the mortgagee for the use of the assignee of the note. The assignment of a note secured by mortgage, only carries the equitable interest in the mortgage, and if this proceeding had been upon the note, the plea that plaintiff had assigned his interest in it before suit brought might have availed. But the proceeding is on the mortgage, the legal right to which is in the mortgagee, and he alone can institute the proceeding. In equity the assignee of the note could file his bill to foreclose.

As to the first point made that the scire facias is defective in substance, we are unable to see wherein. A demurrer was interposed to it, and overruled, and the defendants pleaded over. It is the doctrine of this court, that, if a party does not abide by his demurrer, he cannot avail, on error, of any defect in the pleading. We take this occasion to say, that neither of the pleas on which issues were made up was pleadable in this case. It was a proceeding by scire facias, to subject mortgaged premises to sale. It has been held time and again by this court that no defense can be interposed except the defense of payment, discharge, release or satisfaction, or that the mortgage was never a valid lien on the land. White v. Watkins, 23 Ill. 480; Carpenter v. Mooders, 26 id. 162. In this last case it was held that a plea of usary could not be allowed against it. In Johnson v. The People, 31 id. 469, it was held the plea of non est factum was not a proper plea to a scire facias upon a recognizance which had become a matter of record, and for the reason that it is a record.

As to the forın of the judgment it is substantially like the one in Russell v. Brown, 41 Ill. 183, which was held to be proper.

Perceiving no error in the record, the judgment must be affirmed.

Judgment affirmed.

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10 162 353

GEORGE WELLS, impleaded with John Ryan and ISAAC

W. SWAN,

40 82a 121

V.
THE PEOPLE OF THE STATE OF NEW YORK.

ATTACHMENT — what facts manifest a residence. Whether a person who moves from New York to Illinois gains a residence in this State, within the meaning of our attachment law, is a question of intention deducible from facts and circumstances.

In 1859 a party, formerly a resident of Medina, New York, came to DeKalb county, Illinois, and purchased a farm which he cultivated and lived on from the spring of 1861 to August 1864, but never moved his wife thereto from Medina.

While thus living on his farm he voted in this State and spoke of Illinois as his residence, and declared his intention to make the farm his permanent home, and said his wife would join him on the decease of her mother, who was then too old to be removed. In May, 1864, his property was attached on the ground that he was not a resident of Illinois.

Held, that these facts and circumstances manifest a residence, and, therefore, that the attachment would not lie.

WRIT OF ERROR to the Circuit Court of DeKalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.

The case is sufficiently stated in the opinion of the court.

Mr. R. L. DIVINE, for the plaintiff in error.

Mr. GEORGE C. CAMPBELL, for the defendants in error.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

The only issue tried in this cause in the court below was whether the appellant, Wells, was a non-resident of the State of Illinois, on the 2d of May, 1864. A jury was waived, and the court found that he was a non-resident. A good deal of evidence was taken by the parties, which we have carefully examined, and it shows, substantially, the following state of facts: Wells was formerly a resident of the town of Medina, in the State of New York. In the year 1859, he came to De

Opinion of the Court.

Kalb county, in this State, and purchased a farm. From that time until 1861 he was on the farm on different occasions, but did not occupy it. In the spring of 1861, he began to live upon and cultivate it, having a house, and keeping it as his own, with the aid of a female relation to take charge of the domestic affairs. He was a housekeeper, and not a boarder. This state of things continued up to the 2d of May, 1864, when the attachment in this suit was sued out, at which time he was living on the farm, and continued to reside there until August 1864, when he sold his farm and went away. He had no children, but did have a wife, who continued to live and keep house in Medina after his own removal from New York. She was living there in the same manner when the plaintiff's depositions were taken in August, 1865, though it does not appear that Wells has settled there since he sold his farm in De Kalb county, in August, 1864. He has been engaged in no business in Medina since the winter of 1860–61. He voted there in 1861, but subsequently voted in this State. From the time he began to live upon his farm, in the spring of 1861, to the sale in August, 1864, he steadily occupied and cultivated it, making one visit, and perhaps more, to his wife in Medina, in the winter. During all that period, however, he was not in Medina more than from six weeks to two months. While living on his farm, he spoke of Illinois as his residence, and declared his intention to make the farm his permanent home. He made improvements on the house with that view, and said his wife would join him on the decease of her mother, who was too old to be removed.

Under this state of facts we think it clear that Wells was, on the 2d of May, 1864, a resident of Illinois and not amenable to the process of attachment. The only circumstance in the record pointing to a contrary conclusion is the fact that his wife still continued to live and keep house, as formerly, in the State of New York. But he was living and keeping house here, engaged in steady and permanent business, and manifesting, in all those modes by which such an intent is ordinarily manifested, the design of making this his permanent hoine,

Syllabus.

He was living here in fact, and living here, so far as the record discloses, animo manendi. He left no children behind him, and why the fact that his wife kept house in New York should have any greater weight in determining the question of his residence than the fact that he kept house here, we are unable to perceive. The reason of her remaining in New York was given by him to his friends in Illinois, with the further statement that she intended to join him on her mother's death. Whether that was the true reason of their separation or not is immaterial. The fact that he gave this reason shows that he no longer regarded Medina as his residence, and that he considered his home to be where he was then actually living and doing business. See Board of Supervisors v. Davenport, 40 Ill. 197.

On the facts appearing in this record we have no hesitation in saying the issue should have been found by the court for the defendant.

Judgment reversed.

44 42 23a 306

42 110 634

42 45a 623

LUDWIG BAKER and CAROLINE BAKER

42 58a 49

42 65a 433

V.

AUGUSTA YOUNG. 42 850 340 1. PRACTICE — SLANDER — allegations and proof. In actions for slander, the 44 42 plaintiff, to recover, must prove the language laid in the declaration, or as much 115a '352, at least as fully proves the charge ; equivalent words in meaning will not

suffice. All of the words need not be proved, if those which are proved fully establish the slander, but words proved which limit or qualify the meaning of those counted on, will defeat a recovery. If all of the words laid are necessary to constitute the slander, then all must be proved as laid.

2. SAME. Where the words charged were that plaintiff " was in the family way, and Rink and his wife took her to a Chicago doctor to have the child worked off," held, that proof that defendants said that plaintiff “was in the family way by Tom Beal” sustained the averment. The declaration proceeds for a slander in charging the plaintiff with fornication, and the language proved proves enough of the words to make out the slander. Held, that the additional words laid in the declaration, or those proved, did not alter or modify the charge of fornication. Also held that there was no variance.

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