Opinion of the Court.

out this writ of error. They gave a bond conditioned that if the decree of the Appellate Court should be affirmed, payment should be made by the administrators "in due course of administration."

The defendant in error, Dennison, now enters his motion. for a rule on plaintiffs in error to file herein a new supersedeas bond, with satisfactory sureties, to secure the payment to defendant in error of the decree by him recovered, absolutely, and not "in due course of administration," as by the bond hereinbefore filed.

Mr. J. L. HIGH, for the motion.

Messrs. SMALL & MOORE, contra.

Per CURIAM: The writ of error was sued out by the plaintiffs in error in their capacity as administrators. We see nothing in the circumstances of this case that should take it out of the rule that an administrator may, in all proper cases, for the protection of the estate, take an appeal or sue out a writ of error, and to that end may execute an appeal bond or a supersedeas bond in his capacity as administrator, without incurring any personal liability in respect to such bond. The fact that this decree was entered in the Superior Court after the death of Wallace, but as of a date prior thereto, can make no difference. The administrators stood in the same relation to the decree that they would if it had been entered against them. In that case they would have been directed to make payment in "due course of administration." They ought not to be required to incur any larger liability in their efforts to protect the estate by seeking the reversal of a decree which appears to have been rendered against their intestate in his lifetime. The condition of the bond, that in the event the decree should be affirmed the plaintiffs in error would make payment thereof "in due course of administration," is all that can be required.

Motion denied.

RELEASE OF ERRORS-agreement to pay decree. In a suit in chancery, upon presentation of the decree, which found the defendant liable to pay a certain sum of money, the defendant moved to amend the decree by extending the time for payment, agreeing to pay the money in case further time should be given. The decree was amended accordingly, and so entered. It was held, this agreement to pay the amount decreed against the defendant was not to be considered so far voluntary on his part as to operate as a release of errors, if any existed in the proceedings which resulted in the decree fixing his liability.

APPEAL from the Appellate Court for the First District.

This was a suit in chancery, brought in the circuit court by Jacobson, as receiver of the Bank of Chicago, against Hatch, as a shareholder in the bank. A decree was rendered against Hatch for $10,000, which, on his appeal to the Appellate Court, was affirmed. He thereupon appealed to this

court.

The certificate of evidence recites that "upon the hearing of this cause the said Hatch moved to amend the decree as presented, by extending the time of the payment of the sum therein found due, from ten to thirty days, and agreed in open court, in case of such amendment, to pay the said sum of $10,000 within said thirty days, under any decree protecting said Hatch from suits at law for the same liability, and thereupon the said amendment was made by the court."

The decree then entered gave to Hatch thirty days within which to pay the money, and declared that this payment "shall be full, final and complete discharge of all liability of the said Hatch as shareholder or otherwise of the said Bank of Chicago, to any and all creditors of said bank,”—and that upon Hatch paying this sum, certain specified creditors

Opinion of the Court.

and "all other creditors of said bank shall be perpetually enjoined from further prosecuting said Hatch upon his liability as such stockholder."

The appellee enters his motion to dismiss this appeal, alleging that Hatch was estopped to appeal by reason of the agreements by him made, as recited, and the performance of the conditions upon which he made the agreements.

Messrs. MATTOCKS & MASON, for the motion.

CRAIG, J.: The substance of the agreement made by Hatch was, that if the time for the payment of the money for which the decree found him liable, should be extended, he would pay the amount. He did not agree to waive any error that might have intervened in the proceeding which resulted in that decree; nor should the agreement to make payment be regarded as so far voluntary as to operate as a release of errors, if any existed. The case of Richeson v. Ryan, 14 Ill. 74, is quite analogous to this. In that case Ryan recovered a judgment against Richeson. The latter paid the judgment before an execution issued, and then sued out a writ of error to reverse it. The defendant in error pleaded a release of errors, alleging that Richeson had voluntarily paid the judgment against him. In sustaining a demurrer to the plea, the court said: "If the judgment had been collected by execution, there would not be a doubt of the right of Richeson to prosecute the writ of error. A payment made under such circumstances would be compulsory, and would not preclude him from afterwards reversing the judgment, if erroneous, and then maintaining an action to recover back the amount paid. The payment in question must equally be considered as made under legal compulsion. The judgment fixed the liability of Richeson, and he could only avoid payment by procuring its reversal. He was not bound to wait until payment should be demanded by the sheriff. He was at liberty to pay off the judgment at once and thereby prevent the accumulation of interest and costs. By so doing he did not waive his right to

Opinion of the Court.

remove the record into this court for the purpose of having the validity of the proceedings tested and determined.”

That case was even stronger than the one at bar. Here was a mere promise to pay, which, so far as appears, has not been complied with. There, payment was actually made.

The appellant is not estopped by reason of anything contained in his agreement to pay the amount of the decree, from alleging error in respect thereto. The motion to dismiss the appeal is denied.

Motion denied.

DAVID PRESTON et al.

v.

FREDERICK GAHL.

Ottawa, March Term, 1880.

APPEAL FROM APPELLATE COURT-in forcible detainer. In an action of forcible detainer, which does not involve a franchise, a freehold or the validity of a statute, and in which the amount involved does not exceed $1000, an appeal will not lie from the Appellate Court to this court, there being no question of law certified from the Appellate Court.

APPEAL from the Appellate Court for the Second District.

This was an action of forcible detainer. Mr. THOS. P. BONFIELD, for the appellee, moved to dismiss the appeal upon the ground that there was no question of law certified from the Appellate Court, there being no other matter involved which could give the right of appeal to this court.

SCHOLFIELD, J.: The case does not involve a franchise, a freehold, or the validity of a statute,-nor does the amount involved exceed $1000, so, in the absence of any question of law being certified from the Appellate Court, there is no right of appeal to this court. The appeal will be dismissed.

Appeal dismissed.

Opinion of the Court.

THE PEOPLE ex rel. Kirchner

v.

MASON B. LOOMIS, County Judge.

Ottawa, March Term, 1880.

MANDAMUS-practice in the Supreme Court. A motion was made in this court for an order to show cause why a peremptory writ of mandamus should not issue to compel a county judge to sign a bill of exceptions. The motion was based merely upon an affidavit of one of the attorneys in the case, and the bill of exceptions which the judge had refused to sign. The motion was denied upon the ground that, according to the practice in this court, a petition should have been presented showing the grounds of the application. Such a writ can not be awarded upon mere motion.

This was a motion in behalf of Kirchner, in this court, for an order that Mason B. Loomis, county judge of the county of Cook, show cause why he should not be compelled to sign a certain bill of exceptions which had been tendered to him for that purpose, and which he had refused to sign,-and why a peremptory writ of mandamus should not issue to compel him to sign the same. In support of the motion an affidavit of one of the counsel, and the bill of exceptions which had been tendered to the county judge, were filed.

Messrs. FAIRCHILD & BLACKMAN, and Messrs. BRUSH & LELAND, for the motion.

CRAIG, J. This is an application to this court to award a writ of mandamus to compel a judge to sign a bill of exceptions. The application is based upon a mere motion. No petition has been filed,-nothing but a statement. That is not sufficient. The practice in this court has always been to require a petition to be filed, setting forth the grounds of the application. We will not consider the application upon mere motion.

Motion denied.