Dinet v. Eilert. The plaintiff was therefore subject to the burden of overcoming that prima facie case by evidence sufficient to rebut it. To do so, he introduced evidence to the effect that August 4, 1880, Dinet issued his distress warrant to a constable, authorizing him to distrain upon the goods, etc., of said Charles Schmidt, liable to distress, to satisfy him for $199.47, rent due July 1, 1880, from Schmidt to him, of the same premises. The constable, whether by Dinet's directions or not does not appear, levied that warrant upon the property in question, as Schmidt's property; and, after the bringing of this present suit, it seems that a justice of the peace issued an order or special execution, for the sale of the property in question, and that it was sold, as appears from the evidence. Appellee's counsel claim that Dinet is by such proceedings estopped to show that Schmidt in fact had no title to the property. The plaintiff below undertook to give these proceedings in evidence, as showing Dinet estopped thereby. We are of opinion that they do not show ground for holding Dinet as estopped thereby as res judicata. (1) The judgment itself was not introduced. (2) The matters introduced failed to show the court had jurisdiction of Schmidts person. There was no service of summons or recital of service. There was no constructive service shown, because there was no affidavit under section 19 (R. S. 1874, p. 666). (3) The right of Schmidt to the property was not in issue, and was not adjudicated in that proceeding. In order that the judgment operate as res judicata, it is essential that the court have jurisdiction of the person and subject matter. Bigelow on Estoppels, p. 13, et. seq. It is also essential to an estoppel that it be mutual. So that the same parties are privies might be bound by, and take advantage of it. Bigelow on Estoppel, 47. The plaintiff in this action of trover was not a party to the distress proceedings; neither is he in any sense a privy to the judgment, if valid. The doctrine of estoppel in pais will not apply, because it is not pretended that the plaintiff was induced by the proceeding on the part of Dinet to alter his situation in any respect. So that the whole matter is reduced to the question Dinet v. Eilert. whether Dinet, by causing his distress warrant to be levied on the property in question on the 6th of August as Schmidt's property, is thereby estopped to show that it was not his property; or to be more accurate, estopped to show that it was not his property when he gave the mortgage to Glanz, April 30, 1880. Counsel have furnished us no aid in the investigation. But from the examination we have been able to give to the question, we find that the courts have not carried the doctrine of estoppel to that extent. The act is regarded as operating no farther than as an admission, which is frequently founded on erroneous information, and therefore not conclusive like an estoppel. Loomis v. Green, 7 Greenleaf, R. 386; Morris v. McCamey, 9 Ga. 160; Patterson v. Lytle, 11 Pa. St. 53; Cassel v. Williams, 12 Ills. 387; Stimson v. Farnham, Law. R. 7 Q. B. 175. The court below did not instruct the jury that such proceedings by Dinet amounted to an estoppel, but told them that, "evidence that the defendants have caused the property to be levied upon under attachment, before a justice or distress warrant, if such is the fact, or that Dinet has made any statement implying that the property in suit was the property of Schmidt, if such is the fact, tend to rebut the presumption that the property in suit belonged to Dinet." Now the attachment thus referred to was one which was sued out by Niehoff, the other defendant, in his own name. There was no evidence tending to show that Dinet was in any respect connected with the issuing or levying such attachment. It was solely Niehoff's act, whose interest was adverse to that of Dinet. So that it was not only erroneous, not being based upon any evidence, so far as Dinet was concerned, but very prejudicial to him. It is too clear for argument that this act of Niehoff could have no tendency to rebut the presumption that the property belonged to Dinet. We think, also, that the court erred in refusing instructions asked on behalf of Dinet. But for the error indicated, the judgment must be reversed and the cause remanded for a new trial. Reversed and remanded. INDEX. ACCEPTANCE.-See SALE. ACCORD AND SATISFACTION.-See PLEADING. ACTIONS. CHOICE OF. 1. Law or equity.-The remedy for an injury to the property of a married woman by her husband, although formerly in equity, is now at law, and is not the proper subject for equitable interference unless it be to prevent irreparable injury. The statute of 1861 and amendments thereto gave to married women a legal standing in courts of law that they did not before possess. Larison v. Larison, GENERALLY. 27 2. Commencement of suit.-The suing out of a summons and delivering to the proper officer for the purpose of making service, is the commencement of a suit, but it is necessary that it should be delivered or transmitted to the officer for the purpose of service. Hecla Ins. Co. v. Schroeder, 472 3. Popular.-A suit in the name of the People for the use of a county, to recover a penalty, is not a popular action within the meaning of the statute requiring security for costs. The People v. Coultas, 39 PENAL. 4. Prosecutions under ordinance.-An action to recover a penalty for a failure to take out a license as required by an ordinance, is in the nature of a penal action, and the burden of proof is upon the plaintiff to prove every step in the chain of facts upon which its right of recovery rests. Bull et al. v. City of Quincy, CIRE FACIAS. 127 5. Judgment upon.-A judgment upon a scire facias, that the defendant "be made a party to the judgment rendered at the April term A. D. 1879, and that execution issue thereon," while not strictly formal, is not a nullity, and can only be attacked by direct proceeding. Parker v. Singer Mfg. Co., 383 6. Rights of surety under —Where a surety is made a party to a judgment against the principal by scire facias, and suffers default, he cannot, by a subsequent proceeding in equity, enjoin such judgment on the ground of an agreement between the principal and the judgment creditor to extend the time of payment. Such defense should have been presented in the proceedings upon the scire facias. Parker v. Singer Mfg. Co., 383 ACTIONS. Continued. SURVIVAL. 7. Stockholder's liability.-An action under the statute to enforce a personal liability against a stockholder of an insurance company, is in the nature of a penal action, and dies with the person. Diversey v. Smith, ADMINISTRATION OF ESTATES. GENERALLY. 437 1. Suit against heirs.—Under the statute of this State, if no person administers upon the estate of a deceased person within one year after his death, a separate suit may be maintained against the heirs or devisees of such decedent, on all his contracts and undertakings. Dodds et al. v. Walker et al., ADULTERY.-See CRIMINAL LAW. AFFIDAVITS.-See PRACTICE. AGENCY. GENERALLY. 37 1. Payment to agent.-An agent employed merely to solicit orders, the orders being filled direct from the home office, has no authority to make collections, and a payment to him is no defense to an action by the principal for the amount due on the sale. Greenhood v. Keator, 183 2. What will create.-Where A, having left a horse in charge of B, asked C if he would take possession of the horse and sell it for his benefit if he should write him to do so, and was told by C that he would, and afterwards A wrote C to sell the horse, there was a complete contract of agency, and A is bound by C's acts. Garvey v. Scott, ALLEGATION.-See PRACTICE-PLEADING. AMENDMENTS. GENERALLY. 19 1. Whether stating new cause of action.-Where a plaintiff, within the time limited by the statute, declared against a railroad company for damages for causing the death of his intestate, but his declaration was defective, an amendment made after the statute limitation had run, setting up that the deceased left surviving him a widow and children, is not a setting up of a new cause of action so as to bring it within the statute. Haynie v. C. &. A. R. R. Co., 105 ANIMALS. 1. Liability of owners.-In the case of domestic animals there is no presumption that the owner or keeper has knowledge that they are vicious or dangerous, and he cannot be made liable for injuries done by them unless he is proved to have had notice of their inclination to commit such injuries. Moss v. Pardridge, 490 APPEALS.-See PRACTICE-Courts-JURISDICTION. DISMISSAL. 1. Allegation of.-In a suit upon an appeal bond, an allegation that |