Dewolf v. Long

• Court: Illinois Supreme Court
• Writing for the Court: CATON
• Citation: Dewolf v. Long, 2 Gilman 679, 7 Ill. 679, 1845 WL 3985 (Ill. 1845)
• Decision Date: 31 December 1845
• Parties: WILLIAM F. DEWOLF et al.v.GEORGE W. LONG.

2 Gilman 679

7 Ill. 679

1845 WL 3985 (Ill.)

WILLIAM F. DEWOLF et al.

v.GEORGE W. LONG.

Supreme Court of Illinois.

December Term, 1845.

BILL IN CHANCERY for an injunction, etc., in the Madison circuit court, filed by the defendant in error against the plaintiffs in error. The cause was heard at the May term, 1843, when, among other things, a decree was rendered, making the injunction, previously granted, perpetual.

The substance of the bill, answer and decree is stated by the court.

J. W. CHICKERING, for the plaintiffs in error.

E. KEATING, for the defendant in error.

CATON, J.

The bill in this case states that the bank of Illinois, on the 30th of September, 1842, recovered a judgment in the circuit court of Madison county, against the complainant and two others for the sum of $385.50 and costs, on a note payable to the bank, when the judgment should have been $364.40, on which judgment the bank caused an execution to be issued on the 28th day of October, 1842, which was delivered to the sheriff on the 29th day of the same month; and that on the 16th day of December following, the complainant tendered to the sheriff in notes of the said bank, the sum of $380 and $15 in specie, and demanded a receipt from the sheriff for the same, but that he refused to receive said notes on the execution, and informed complainant that the judgment had been assigned by the bank to the present plaintiffs in error, who had directed him to receive nothing but specie on the execution.

The bill further states, that the complainant has ever been ready and willing, and still is ready and willing to pay the amount of said judgment and interest in the bills of the bank and the amount of the costs in specie, “and now offers to bring into court the said sum of three hundred and eighty dollars of said bills and fifteen dollars in specie, for the acceptance of said sheriff or owners of said judgment.” The bill further states, that the sheriff has levied the execution on real estate in the county of Madison, and threatens to sell the same, and prays that the defendants answer under oath and for an injunction.

Chickering and DeWolf answer and admit the rendition and assignment of the judgment, and the issuing and levy of the execution as stated in the bill. They further answer that they have no knowledge “that the said complainants tendered at any time to the sheriff the sum of $380 in bills of the said bank, and fifteen dollars in specie. The answer further states, that soon after the said assignment, the defendant, Chickering, notified the complainant and H. Loomis of the said assignment, and that the property in said judgment was in the defendants below, and that payment thereof must be made to them; that the said assignment was made for a full and adequate consideration. None of the other defendants answered, nor was the bill ever taken as confessed as to them.

No replication was filed and the case was heard on bill and answer, and a decree was entered making the injunction, which had been previously awarded by the master according to the prayer of the bill, perpetual, “and that the owners of the said judgment receive the amount in said bill alleged, to be tendered in bills or bank notes of the president, directors and company of the bank of Illinois, in full satisfaction of said judgment, etc.” To reverse this decree, a writ of error is prosecuted.

Admitting the sufficiency of the tender made to the sheriff, yet the complainant has not entitled himself to the relief sought, by keeping his tender good. He should have brought the money into court and deposited it with the clerk when he filed his bill, so that the other parties might at any time have accepted the tender, and put an end to the litigation. This is indispensably necessary as well in courts of chancery as in courts of law. This question has been distinctly settled by this court in the case of Doyle v. Teas, 4 Scam. 267; and we think it unnecessary to discuss the question at length at this time. There is no pretence that that was done in this case. The bill states that the complainant is now ready and willing, and ever since the time of making the said tender continued ready and willing to pay to the sheriff or owners of the said judgment the amount thereof as it was tendered, “and now offers to bring into court the said sum of $380 of the bills or bank notes, and...