MORGAN CO. IL
COURT RECORDS
 

"Reports of Cases Argued and Decided in The Supreme Court of the United States, Book XI, Containing Howard Vol.1, 2, 3 and 4;" by Stephen K. Williams; Vol.11 Lawyers Edition pgs.64 to 69; Vol.1 Howard, January term 1843, pgs.104 to 118; by Benjamin C. Howard (El Dorado Co. CA Law Library 10/2003)
      THE UNITED STATES, Plaintiffs in Error, v. WILLIAM LINN et al; Supreme Court of the United States; 42 U.S. 104; 11 L. Ed. 64; 1 HOW 104; January 26, 1843, Decided
      THIS case came up by writ of error from the Circuit Court of the United States for the district of Illinois, and is a sequel to the case between the same parties reported in 15 Peters, 291, et seq. The circumstances are sufficiently set forth in the opinion of the court.
      This case comes up on a writ of error from the Circuit Court of the United States for the district of Illinois. The writ or summons issued in the cause purports to be in a plea of debt for one hundred thousand dollars. And the declaration contains three counts upon the following instrument, which upon oyer craved by the defendants is set out upon the record.
      "Know all men by these presents, that we, William Linn, David B. Waterman, Lemuel Lee, James M. Duncan, John Hall, William Walters, Asahel Lee, William L.D. Ewing, Alexander P. Field, and Joseph Duncan, are held and firmly bound unto the United States of America, in the full and just sum of one hundred thousand dollars, money of the United States, to which payment, well and truly to be made, we bind ourselves jointly and severally, our joint and several heirs, executors, and administrators, firmly by these presents, sealed with our seals, and dated this first day of August, in the year one thousand eight hundred and thirty-six." They also crave oyer of the condition of the said supposed writing obligatory, and it is read to them in these words: "The condition of the foregoing obligation is such, that whereas the President of the United States hath, pursuant to law, appointed the said William Linn receiver of public moneys for the district, of lands subject to sale at Vandalia, in the state of Illinois, for the term of four years, from the 12th day of January, 1835, by commission bearing 12th February, 1835. Now, therefore, if the said William Linn shall faithfully execute and discharge the duties of his office, then the above obligation to be void and of none effect, otherwise it shall abide and remain in full force and virtue.
      Sealed and delivered in the presence of Presley G. Pollock, as to Wm. Linn, D.B. Waterman, Lemuel Lee, J.M. Duncan, John Hall, Wm. Walters, Asahel Lee, Wm. L.D. Ewing, and A.P. Field; A. Caldwell as to Joseph Duncan.
      WILLIAM LINN, D.B. WATERMAN, LEMUEL LEE, J.M. DUNCAN, JOHN HALL, WM. WALTERS, ASAHEL LEE, WM. L.D. EWING, A.P. FIELD, JOSEPH DUNCAN, GENERAL LAND OFFICE. Approved, August 30, 1836. ETHAN A. BROWN."
      ... The defendant, Joseph Duncan, put in the following plea.
"And the said Joseph Duncan impleaded as aforesaid, by Logan and Brown, his attorneys, comes and ... says, that protesting that he executed the supposed written instrument, ... he says that after he had signed said instrument, and delivered it to his co-defendant, Linn, to be transmitted to the plaintiffs; and after the securities to the said written instrument had been affixed (approved) by the Hon. Nathaniel Pope, Judge of the District Court of the United States for the state of Illinois, it was, without the consent, direction, or authority of said Joseph Duncan, materially altered in this -- that scrawls, by way of seals, were affixed to the signature of said Joseph Duncan to said written instrument, and to the signatures of the other parties to said written instrument.
      Upon the trial, after reading the bond to the jury, the defendants called a witness, who testified in substance, that he saw the bond after it had been signed by the obligors, in the hands of William Linn, the obligor first named therein, after it had been returned from the district judge with his certificate endorsed of the sufficiency of the sureties. That the district judge, in a note in writing, accompanying the bond, had pointed out the omission of seals to the names of the signers of the instrument; and said Linn, saying he would obviate that difficulty, took a pen, and in the presence of the witness, added scrawls, by way of seals, to each name subscribed, as makers of the instrument. ...
      ... the instrument as of the date of the 1st of April, 1836. That Linn's commission bears date the 12th of February, 1835, and that he was appointed receiver for four years from the 12th of January, 1835. And the count then alleges that after the making and delivering the said instrument in writing, and after the appointment of the said Linn, he entered upon the duties of his office; and that within four years from the said 12th day of January, and while he was receiver of public moneys, there came into his hands, as receiver, the sum of four millions of dollars, which it was his duty to pay over to the plaintiffs when requested, yet the said William Linn hath not, nor would he, although often requested so to do, to wit on the 2d day of April, in the year 1838, account for and pay over to the said plaintiffs the said sums of money or any part thereof, but hath wholly neglected and refused so to do. It is said this [charge] is bad, because from the time stated in the count he might have received the money after the 12th day of January, 1835, the commencement of his office, and before the 1st day of April, 1836, when the instrument signed by the sureties bears date, and that the sureties cannot be responsible for any moneys received before they became sureties.
      The judgment of the Circuit Court must accordingly be reversed, and the cause sent back for further proceedings.
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"Reports of Cases Argued and Decided in The Supreme Court of the United States, Book X, Containing Peters Vol.13, 14, 15 and 16;" by Stephen K. Williams; Vol.10 Lawyers Edition pgs.290 to 318; Vol.15 Peters pgs.742 to 752 (El Dorado Co. CA Law Library 10/8/2003)
      THE UNITED STATES, Plaintiffs in Error, v. WILLIAM LINN et al, Defendants in Error; Supreme Court of The United States; 40 U.S. 290; 10 L. Ed. 742; February 22, 1841, Decided. Similar to above.
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"The Federal Cases, comprising cases argued and determined in the circuit and district courts of the United States from the earliest times to the beginning of the Federal Reporter, arranged alphabetically by the titles of the cases and numbered consecutively" Cases 14,692 to 15,243, U.S. v. Burr - U.S. v. Grace Meade; Vol.25, pgs.926, 927 to 937, 937 to 938 (California State Law Library 12/2003)
      UNITED STATES v. DUNCAN et al.; Case No. 15,005, Circuit Court, D. Illinois; 25 F. Cas. 938; 4 Mc Lean 207; June, 1847, Term.
      Judgments were obtained in this court in 1841, which are a lien on the lands of the ancestor of the defendants, throughout the state. In 1846, there was a decree against the same, in favor of the plaintiffs, for forty-nine thousand dollars. Certain judgments have been subsequently entered against the same person, in Morgan county state court, for about six hundred dollars, which create a lien upon the lands in that county. Executions have been issued on the judgments of the United States, and a motion is now made to direct the other lands of Duncan's heirs in the state, to be sold, in satisfaction of the judgments and decrees above stated.
      The court order, that should the land in Morgan county sell for more than the amount of the judgments of the United States, entered in 1841, the solicitor or agent of the United States, shall retain in his own hands such surplus, subject to the order of this court. Or, should such lands sell for less than the balance of said judgments, and the other lands subject to the decree shall sell for more money than the amount of such decree, the surplus shall be held by the solicitor and agent of the United States, subject to the disposition of the court.
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      UNITED STATES v. DUNCAN et al.; Case No. 15,002, Circuit Court, D. Illinois; 25 F. Cas. 926; 4 Mc Lean 99; June, 1846, Term
      This bill was filed by the United States to subject the lands of Gen. Duncan, deceased, to the payment of liabilities incurred by him as a security for Linn, who was a receiver of public moneys at Vandalia, and who was a defaulter to a large amount, for which a judgment was obtained against Duncan. And this bill was brought to investigate the title to the lands of Duncan's estate, ascertain the extent of his interests, and remove all embarrassments. The question now raised and discussed, and which we are to decide, is, whether the widow of Gen. Duncan is entitled to dower. That the statute gives her dower in all the real estate of her deceased husband, as well that which he held by contract as that which he held by deed in fee simple, is not disputed; but it is alleged that she is barred under the will. By the will, Mrs. Duncan received a considerable amount of personal property, and, it seems, she has not renounced this right to claim her dower under the statute. On the part of the government, it is contended that where at common law a devise is made in lieu of dower, in a reasonable time, the widow must make her election to claim dower, or she will be barred. He says, "It is likewise settled, that a collateral satisfaction, consisting of money or other chattel interests, given by will and accepted by the wife after her husband's death, will constitute an equitable bar of dower." She may make her election to claim dower, some years after her husband's death, and where she has received that which was intended to be in lieu of dower, if she acted in any degree in ignorance of her rights. But where she has acted with a full knowledge of her rights, in the acceptance of the testamentary provision instead of her dower, she will be bound by her acceptance.
      But the question is, whether the bequest referred to, was given, or intended to be given, in lieu of dower. Certain real estate had been conveyed to Mrs. Duncan, to secure her against contingencies, which was greatly below the estate she brought to her husband. This can in no sense be considered operating against her claim of dower. It was only returning to his wife a part of the estate which she had in her own right, and which he came into the possession of by marriage.
      It is argued that it was the intent of the testator to give personal property in lieu of dower. But there is no expression in the will which authorizes such an inference, unless it be the simple fact, of bequeathing the personal property. In deciding this question, regard must be had to the condition of the parties. Gen. Duncan was a man of large property, and at the time of his death, in all probability, expected to be relieved, in some form, from a part of his suretyship. He seems only to have been embarrassed on this account. It is true, the Revised Statutes of Illinois of 1833, p. 624, "declare that any provision by will bars dower, unless it be otherwise expressed in the will, and unless the widow in six months renounces the provision." Now this provision must have a reasonable construcation. Will it be contended that any bequest in the will to the wife, however small, will bar dower? Such could not have been the intention of the legislature. And if this construction be not sustainable, is there any other rule than that the bequest should be such as would be a reasonable compensation for dower in the real estate? Can the wife be divested of her dower, which is a legal right, on any other principle? Is she barred of her dower, if she accept a gift of five or twenty dollars, or some piece of furniture under the will from her dying husband, as an evidence of his affection? Certainly she is not. Where any property was bequeathed to the wife, which from the amount, might be presumed under the statute to be in lieu of dower, and there was nothing in the will to contradict this presumption, she would be bound by it, ordinarily, unless her election of dower were made in six months. This appears to be a reasonable construction of the statute, which will effectuate the intention of the legislature. In treating upon this subject, Mr. Justice Story, in his treatise on Equity (section 1088), says: "If a testator should bequeath property to his wife, manifestly with the intention of its being in satisfaction of her dower, it would create a case of election. But such an intention must be clear and free from ambiguity. And it would not be inferred from the mere fact of the testator's making a general disposition of all his property, although he should give his wife a legacy; for he might intend to give only what was strictly his own, subject to dower. There is no repugnancy in such a bequest." "Besides," he says, "the right to dower being in itself a clear, legal right, an intent to exclude that right by a voluntary gift, ought to be demonstrated, either by express words, or by clear and manifest implication." This is the substance of the authorities on this subject. ... It is said, "What is given by a will, ought, from the character of the instrument, ordinarily be deemed as given as a mere bounty, unless a contrary intention is apparent on the face of the instrument," "or, as it has been well expressed, whatever has been given by a will is prima facie, to be intended as a bounty or benevolence." But there seems to have been a renunciation under the will after the lapse of eighteen months, which, it is contended, is too late, as the statute requires it to be done in six months. Here, too, the statute must receive a reasonable construction. Suppose the widow remains in utter ignorance of the estate of her husband, and has no means within the time limited, to ascertain the facts which would enable her to make an election. It has often been held, that years, under certain circumstances, may be allowed for this election. That the widow may file her bill to obtain a knowledge of the estate. That where she has been in possession of the bequest for years, under an ignorance of the estate, she may renounce under the will and claim dower.
      From the nature of the case, it must be perceived that there are cases in which the election could not be made in six months, and it would not be extending the principles of equity beyond their legitimate limits, in such cases of hardship, to relieve the widow. The estate of Gen. Duncan was large, and by the suretyship named, much embarrassed. It was impossible to understand the extent of the property and the nature of his liabilities, it would seem, in six months, so as to determine this matter.Upon the whole, when we consider the small amount of the personal property bequeathed, one-third of which belonged to the widow, the presumption can not arise, that the bequest was given in lieu of dower. And no fair construction of the statute would bring such a case within it. We think Mrs. Duncan is indowable of the lands of her husband, and commissioners will be appointed to set it off, unless an arrangement on the subject shall be made.
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      UNITED STATES v. DUNCAN; Case No. 15,003, Circuit Court, D. Illinois; 25 F. Cas. 927; 12 Ill. 523; 4 Mc Lean 607; December, 1850, Term
      Petitioner creditors sought relief against defendant decedent's representatives and plaintiff federal government, seeking recovery from the estate of the decedent for alleged liens and debts owing to them, while the federal government argued that under the Act of March 3, 1791, 1 Stat. 515, and other applicable law its claims had priority.
      In the year 1835, Joseph Duncan, whose representatives are the defendants in this case, became one of the sureties of William Linn, receiver of public monies at Vandalia, in this state. The principal having failed to comply with the duties imposed on him by law, the sureties became liable in the bond given to the United States. At the June term, 1841, of this court, the United States recovered three several judgments at law against the sureties. Duncan, among others, for the aggregate sum of $29,191.05. At the time these judgments were obtained, none of the sureties, except Duncan, had any available property, and Linn, the principal, was insolvent. On the 22d of December, 1843, the United States realized on these judgments the sum of $23,532.65. In January, 1844, Joseph Duncan died, disposing by will, of his real and personal estate, but making no provision other than the usual one for the payment of his debts, for the amount due the United States. At the time of his death, he was seized of a great many tracts of land lying in different counties of this state, and in Morgan county, his place of residence. The judgments of 1841, in this court, not covering the defalcation of Linn, the plaintiffs instituted suit at law, to the December term of this court, 1844, against William Thomas, as administrator, etc., of Joseph Duncan, the executors having resigned or ceased to act; and at that term recovered judgment against the administrator, de bonis testatoris, for the sum of $48,151.61. In February, 1846, the United States filed a bill in this court, setting forth most of the facts detailed above, and asking for a discovery of the title papers and estate of Duncan; insisting upon the priority of the plaintiffs; and praying for an account of the money due the United States; of the personal estate of Duncan; and of the value, rents and profits of the real estate; and that if the personal estate was not sufficient, the real estate might be sold to pay the debt due the plaintiffs. To this bill, the widow, heirs, executors, devisees, etc., of Duncan were made parties. During the progress of the cause, the value of the widow's dower was agreed upon and amicably settled, and she relinquished. [See Case No. 15,002.] Answers were put in by the defendants, and at the June term, 1846, a decree was rendered in favor of the United States for the sum of $49,156.15 (that being all that was due except what had not been collected under the judgments of 1841), and ordering the real estate of Duncan to be sold, and the proceeds to be paid to the United States, "first paying prior liens, if any." Under this decree, various sales of real estate out of Morgan county have taken place, under the direction of a commissioner, for which very considerable sums have been realized, part of which have been paid over to the United States, but there remains the sum of $4,052 subject to the order of the court. [See Case No. 15,005.] Personal property to the amount of $300 was sold under the judgment of 1844.
      There were two judgments recovered against Duncan in his life time, in the circuit court of Morgan county, of this state, one by McConnell and others for $333.76, in November, 1841, and the other by Matthews for $497.35 in March, 1842. On the 10th of November, 1845, Doremas, Suydam & Nixon filed a bill in the same court against William Thomas, administrator, etc. of Duncan's estate, alleging that certain personal property which the executors of Duncan had sold, and the proceeds of which, amounting to $960.60, it seems they had applied to the payment of taxes on real estate and expenses of administration, belonged to a firm of which one James M. Duncan and Joseph Duncan, in his life time, were partners, and that the plaintiffs were creditors of that firm, and claiming that they (Doremas, Suydam & Nixon) should be re-paid the money so used by the executors, and that they should be substituted in their place; insisting it was a former claim. James M. Duncan, also one of the sureties of Linn, was a party to this bill, but he was insolvent. The administrator in his answer denied the partnership, and referred to the claim of the United States and their priority, and to the proceedings in this court, which he set forth at length; but the circuit court of Morgan county, by a decree rendered on the 17th November, 1847, found that the partnership did exist, as stated in the bill; that at the death of Duncan, the goods and chattels referred to, and the proceeds of which had gone into the hands of the executors, were liable for the partnership debts, wherever traced, and ordered that the plaintiffs should be paid out of the estate of Duncan. To Doremas & Nixon, $766.48; to Wm. A. Ranson & Co., 194.12. The latter had been made parties and Suydam had died pending the suit. The court further adjudged that inasmuch as it did not appear the administrator had any assets in his hands, he should pay the above sums out of assets thereafter to come into his hands, or which might remain in his hands after the settlement of his accounts as administrator. It is proper to add, that an objection was made in the answer of Thomas, because the United States were not made parties, but the court decided that it was not necessary to make them parties.
      It was conceded that the judgments of 1841, rendered in this court, were a lien on all the real estate of Duncan within the state; that the decree of June term, 1846, operated to the same extent, upon the real estate in the hands of the heirs, devisees, executors, etc., of Duncan; and that the judgments of the Morgan circuit court operated only upon real estate within the county of Morgan. The judgments and decrees rendered in the circuit court of Morgan county, are yet in force, not being paid or satisfied, except some partial payments hereafter mentioned. The judgments at law of this court recovered in 1841, being only paid in part, the United States in 1847 issued alias executions on those judgments, and the marshal levied them on lands lying in Morgan county of which Duncan had been seized, and they were sold by the plaintiffs.
      Joseph Duncan, at the time of his death, did not possess sufficient property, including real and personal, to discharge the debt he owed the United States, the lands out of Morgan county not being of value enough to satisfy the decree of June term, 1846. And it does not appear that there was more than sufficient property in Morgan county, to meet the balance due on the judgments of 1841 of this court. In this condition stood the case, when, on the 15th of June, 1847, McConnell et al. and Matthews filed their petition in this court. The petition of McConnell et al. alleges that under the decree of 1846, sales of lands without the county of Morgan had taken place, upon which had been made $3,555.20, which, it insists ought to be, as to the lien of their judgment, a credit on the judgments at law of the United States of June, 1841 -- that there are lands out of the county of Morgan more than sufficient to satisfy those judgments, and that the United States are proceeding to sell real estate in Morgan county. The petition calls for the interposition of the court to arrest the sale; to marshal the securities so as to give them the benefit of their lien, by throwing the judgments of the United States of 1841, upon lands out of Morgan county and that the sum made $3,555.20 be applied upon those judgments. The petition of Matthews is, in all respects, similar to that of McConnell et al. A fi. fa. had issued on the judgment of McConnell, and $60.00 had been obtained on it. A fi. fa. had also issued on the judgment of Matthews, and real estate had been levied on, and $393.00 made by the sale of it. The executions in each case were issued within a year after the judgments were obtained respectively. On the 23d of December, 1847, Doremas & Nixon, and A. Ranson & Co., likewise filed a petition setting forth most of the facts heretofore mentioned, and alleging that this court had taken full administration of the estate of Duncan -- that their decree of the Morgan court of November, 1847, had been rendered useless -- that there was no priority of payment to the United States, till the estate was ready to be disbursed -- that taxes and costs of administration were to be first paid -- that under the circumstances they stand as the state and individuals, and were clothed with their rights -- that there was more real estate to be sold, and their partnership fund had increased the amount to be disbursed in this cause -- and asking that their decree be paid out of money received from the sale of real and personal estate, or, if that be not proper, that the commissioner of this court be ordered to sell land enough to satisfy the sum named in their decree, and pay it over to them.
      Various supplemental petitions were filed by all the parties, from time to time, bringing before the court the proceedings that have since taken place in this cause, and particularly stating that other lands, out of Morgan county had been sold, under the decree of June, 1846, and the money received, and that the sum of $3,789.56 was made by sale of land in Morgan county under the judgment of 1841. The petition of O'Donoghue, which was filed on the 10th of January, 1849, states that he had purchased a lot of land at a sale made by the commissioner in this cause, which lot was sold as a part of the estate of Duncan; that he paid the commissioner for it, and that Duncan had no title to it, having before his death by deed duly recorded, conveyed it to the Illinois College, and he seeks to have the sale by the commissioner annulled, and to have the money paid by him reimbursed out of the fund in court. When these petitions were presented, this court, without determining the questions sought to be raised by them, ordered that a sufficient fund should be reserved to satisfy their claims, which was to be paid to the petitioners, provided the court should be of opinion upon the final disposition of the cause, that the parties were entitled to receive the amounts they sought. And there is now a fund of more than four thousand dollars awaiting the decision of the questions presented by these petitioners.
      These are the material facts: The applications were once heard before the former judge of this court, but no decision was given or order entered. They have therefore been fully argued before me, and it now becomes my duty to announce my opinions upon the different questions presented. ... Admitting that the question is not free from difficulty, yet I have not been able to come at any other conclusion than that which is here announced. It is sometimes a hard rule, undoubtedly, upon individual creditors and upon families, that a man's whole estate should be swept away to pay a debt due to the government, but courts of justice can only expound and apply the law, and if upon a fair and impartial examination of the subject they can ascertain its intent and meaning, their duty is simply to administer it, as it becomes applicable, in the various relations of life, to the rights and interests of the parties before them.
      The court granted judgment in favor of the federal government and against the creditors.
 

"Reports of cases argued and determined in the Supreme Court of the State of Illinois" ("Illinois Reports" [Vol.] 10 GILMAN) by Charles Gilman, Vol.V; Vol.10, pg.296 to 297 (California State Law Library, Sacramento, 12/2003)
      ELIZABETH C. DUNCAN et al plaintiffs in error v. GEORGE W. FINCH et al defendants in error; Supreme Court of Illinois, at Springfield; 10 Ill. 296; 5 Gilm. 296; December, 1848, Decided.
      Error to Pike. BILL IN CHANCERY, for an injunction, etc., in the Pike circuit court, brought by the plaintiffs in error against the defendants in error. The cause came on to be heard at the August term, 1847, the Hon. Norman H. Purple presiding, and the complainants not appearing, the bill was dismissed and the injunction dissolved.
      Opinion of the court by CATON, J. This bill was filed by the administrators with the will annexed, and the infant heirs of Joseph Duncan, deceased, against the defendants, upon which an injunction was issued in vacation. The summons was returnable to the March term, 1847, but which it does not appear was ever served or returned. At that time one of the defendants, Finch, appeared and filed his answer to which no replication was ever filed. At that term, the next friend of the infant complainants filed a bond for costs for them, and the cause was continued to the next term, no steps having been taken by the complainants to bring the other defendants into court. At the August term, 1847, the suit was called in its order, the defendant appeared, but no one appearing for the complainants, the suit was dismissed for want of prosecution, but without prejudice. The complainants bring the record here, and complain that there is error in this decree.
      We think the circuit court proceeded strictly in conformity to its duty in dismissing the bill and dissolving the injunction. The complainants' solicitor was manifestly guilty of negligence in not preparing the suit for a hearing. He should have taken some measures to get a return of the summons, and if it had not been served on the other defendant, to issue an alias, and to have done all in his power to have brought the cause to a hearing, that the defendant, who had appeared, need not continue under the injunction without a hearing any longer than was absolutely necessary. Instead of that, the complainants having obtained an injunction, gave themselves no further concern about the suit, but left it to its fate. The excuse why no appearance was made at the August term is, that the suit was not ready for a hearing, and consequently there was no necessity for the attendance of counsel, as the case could not have been argued. Even if counsel had attended at that time, it might have been the duty of the court to have dismissed the suit, because no steps had been taken at the former term to bring in the other defendant, and thus advance the suit. It was the duty of the complainants to speed the cause with diligence, and if they would not do that, they must suffer the just penalty of their negligence. Even with the utmost diligence, the procrastination in chancery cases often becomes oppressive, and affords grounds for a just reproach against our system of chancery jurisprudence, and it is the duty of courts, as well as parties, to see that there is no unnecessary delay. In consideration of some of the complainants being infants, the court might possibly have been justified in further delay, had it been satisfied from an inspection of the record, that their interests might have suffered irreparable injury by a dismissal of the bill; but at most it was but matter of discretion with the court below, which we think was very properly exercised. A new bill may be filed when the complainants get ready to go on with their case.
      The decree of the circuit court is affirmed with costs.
 

"Reports of cases argued and determined in the Supreme Court of the State of Illinois from November term 1850 to June term 1851" ("Illinois Reports") by E. Peck, Counsellor at law; Vol.12, pg.523 to 545 (California State Law Library, Sacramento, 12/2003)
      THE UNITED STATES v. E. C. DUNCAN et al; Supreme Court of Illinois, at Ottawa; 12 Ill. 522 [523]; December, 1850, Decided.
      Opinion, delivered December 27, 1850. In the year 1835, Joseph Duncan, whose representatives are the defendants in this case, became one of the sureties of William Linn, receiver of public moneys at Vandalia, in this state. The principal having failed to comply with the duties imposed on him by law, the sureties became liable on the bond given to the United States.
      At the June term, 1841, of this court, the United States recovered three several judgments at law, against the sureties, Duncan, among others, for the aggregate sum of $29,191.05. At the time these judgments were obtained, none of the sureties, except Duncan, had any available property, and Linn, the principal, was insolvent. On the twenty-second of December, 1843, the United States realized on these judgments the sum of $23,532.65.
      In January, 1844, Joseph Duncan died, disposing, by will, of his real and personal estate, but making no provision, other than the usual one for the payment of his debts, for the amount due the United States. At the time of his death, he was seized of a great many tracts of land, lying in different counties of this state and in Morgan county, his place of residence.
      The judgments of 1841, in this court, not covering the defalcation of Linn, the plaintiffs instituted suit at law, to the December term of this court, 1844, against William Thomas, as administrator, etc., of Joseph Duncan, the executors having resigned or ceased to act; and, at that term, recovered judgment against the administrator, de bonis testatoris, for the sum of $48,151.61.
      In February, 1846, the United States filed a bill in this court, setting forth most of the facts detailed above, and asking for a discovery of the title papers and estate of Duncan; insisting upon the priority of the plaintiffs, and praying for an account of the money due the United States, of the personal estate of Duncan, and of the value, rents and profits of the real estate; and that, if the personal estate was not sufficient, the real estate might be sold to pay the debt due the plaintiffs. To this bill, the widow, heirs, executors, devisees, etc., of Duncan, were made parties. During the progress of the cause, the value of the widow's dower was agreed upon and amicably settled, and she relinquished. Answers were put in by the defendants, and at the June term, 1846, a decree was rendered in favor of the United States for the sum of $49,156.15 (that being all that was due, except what had not been collected under the judgments of 1841), and ordering the real estate of Duncan to be sold, and the proceeds to be paid to the United States, "first paying prior liens, if any."
      Under this decree, various sales of real estate out of Morgan county have taken place, under the direction of a commissioner, from which very considerable sums have been realized, part of which have been paid over to the United States, but there remains the sum of $4,052.00, subject to the order of the court.
      Personal property to the amount of $300 was sold under the judgment of 1844.
      There were two judgments recovered against Duncan in his life time, in the Circuit Court of Morgan county, of this state, one by McConnel et al., for $333.76, in November, 1841, and the other by Matthews for $497.35, in March, 1842. On the tenth of November, 1845, Doremus, Suydam & Nixon, filed a bill in the same court against William Thomas, administrator, etc., of Duncan's estate, alleging that certain personal property which the executors of Duncan had sold, and the proceeds of which, amounting to $960.60, it seems they had applied to the payment of taxes on real estate and expenses of administration, belonged to a firm of which one James M. Duncan and Joseph Duncan, in his life time, were partners, and that the plaintiffs were creditors of that firm, and claiming that they (Doremus, Suydam & Nixon) should be repaid the sum so used by the executors, and that they should be substituted in their place; insisting it was a favored claim. James M. Duncan, also one of the sureties of Linn, was party to this bill, but he was insolvent. The administrator, in his answer, denied the partnership, and referred to the claim of the United States, and their priority, and to the proceedings in this court, which he set forth of length, but the Circuit Court of Morgan county, by a decree rendered on the seventeenth of November, 1847, found that the partnership did exist; as stated in the bill; that at the death of Duncan, the goods and chattels referred to, and the proceeds of which had gone into the hands of the executors, were liable for the partnership debts, wherever traced, and ordered that the plaintiffs should be paid out of the estate of Duncan. To Doremus & Nixon $766.48; to William A. Ransom & Co., $194.12. The latter had been made parties, and Suydam had died pending the suit. The court further adjudged, that inasmuch as it did not appear the administrator had any assets in his hands, he should pay the above sums out of assets thereafter to come into his hands, or which might remain in his hands after the settlement of his accounts as administrator. It is proper to add, that an objection was made in the answer of Thomas, because the United States were not parties, but the court decided it was not necessary to make them parties.
      It was conceded that the judgments of 1841, rendered in this court, were a lien on all the real estate of Duncan within the state, that the decree of June term, 1846, operated to the same extent, upon the real estate in the hands of the heirs, devisees, executors, etc., of Duncan, and that the judgments of the Morgan Circuit Court operated only upon real estate within the county of Morgan. The judgments and decree entered in the Circuit Court of Morgan county are yet in force, not being paid or satisfied, except some, partial payments hereafter mentioned.
      The judgments at law of this court, recovered in 1841, being paid only in part, the United States, in 1847, issued alias executions on those judgments, and the marshal levied them on lands lying in Morgan county of which Duncan died seized, and they were sold by the plaintiffs.
      Joseph Duncan, at the time of his death, did not possess sufficient property, including real and personal, to discharge the debt he owed the United States, the lands out of Morgan county not being of value enough to satisfy the decree of June term, 1846. And it does not appear that there was more than sufficient property in Morgan county to meet the balance due on the judgments of 1841, of this court.
      In this condition stood the cause when, on the fifteenth of June, 1847, McConnel et al., and Matthews, filed their petitions in this court.
      The petition of McConnel et al. alleges that under the decree of 1846, sales of lands without the county of Morgan had taken place, upon which had been made $3,555.20, which, it insists, ought to be, as to the lien of their judgment, a credit on the judgments at law, of the United States of June, 1841; that there are lands out of the county of Morgan more than sufficient to satisfy those judgments, and that the United States are proceeding to sell real estate in Morgan county. The petition calls for the interposition of the court to arrest the sale; to marshal the securities so as to give them the benefit of this lien, by throwing the judgments of the United States of 1841 upon lands out of Morgan county, and that the sum made, $3,555.20, be applied upon these judgments.
      The petition of Matthews is, in all respects, similar to that of McConnel et al.
      A fi. fa. had issued on the judgment of McConnel, and $60 had been obtained on it. A fi fa. had also issued on the judgment of Matthews, and real estate had been levied on and $393 made by the sale of it. The executions were issued in each case within a year after the judgments were obtained respectively.
      On the twenty-third of December, 1847, Doremus & Nixon, and A. Ransom & Co. likewise filed a petition setting forth most of the facts heretofore mentioned, and alleging that this court had taken full administration of the estate of Duncan; that their decree of the Morgan court of November, 1847, had been rendered useless; that there was no priority of payment to the United States till the estate was ready to be disbursed; that taxes and costs of administration were to be first paid; that, under the circumstances, they stood as the state and individuals, and were elected with their rights; that there was more real estate to be sold, and their partnership fund had increased the amount to be disbursed in this cause, and asking that their decree be paid out of moneys received from the sale of real and personal estate, or, if that be not proper, that the commissioner of this court be ordered to sell land enough to satisfy the sum named in their decree, and pay it over to them.
      Various supplemental petitions were filed by all the parties, from time to time, bringing before the court the proceedings that have since taken place in this cause, and particularly stating that other lands out of Morgan county had been sold under the decree of June, 1846, and the money received, and that the sum of $3,789.56 was made by sale of land in Morgan county under the judgments of 1841.
      The petition of O'Donoghue, which was filed on the tenth of January, 1849, states that he had purchased a lot of land at a sale made by the commissioner in this cause, which lot was sold as a part of the estate of Duncan; that he paid the commissioner for it, and that Duncan had no title to it, having before his death, by deed duly recorded, conveyed it to the Illinois college. And he seeks to have the sale by the commissioner to him annulled, and to have the money paid by him reimbursed out of the fund in court.
      When these petitions were presented, this court without determining the questions sought to be raised by them, ordered that a sufficient fund should be reserved to satisfy their claims, which was to be paid to the petitioners, provided the court should be of opinion upon the final disposition of the cause, that the parties were entitled to receive the amounts they sought. And there is now a fund of more than four thousand dollars awaiting the decision of the questions presented by these petitioners.
      These are the material facts.
      The applications were once heard before the former judge of this court, but no decision was given or order entered. They have, therefore, been fully argued before me, and it now becomes my duty to announce my opinions upon the different questions presented.
      The counsel of the United States not denying the allegations contained in the petitions, insists that the petitioners are not entitled to the relief they seek, nor to any relief. (MAD: much more omitted here)
      As the petition of O'Donaghue stands upon a footing entirely different from the others, it may be convenient to consider that first. ... It will be seen, therefore, from these principles and authorities, the petitioner, while he has no claim upon the fund now in court, has a remedy against the estate of Duncan. That it may be unavailing is his misfortune. If the petitioner obtain the money he has paid, it must be by the voluntary act of the plaintiffs, and not by the order of this court.
      Let us now proceed to consider the petition of Doremus & Nixon, and A. Ransom & Co. They insist that, inasmuch as there was a partnership between James M. and Joseph Duncan, and the executor of Joseph Duncan had used the partnership goods to pay the taxes on his real estate, and the expenses of administration, they, as creditors of the partnership, have a right to be repaid out of the fund in court. (more omitted here)
      Admitting that the question is not free from difficulty, yet I have not been able to arrive at any other conclusion than that which is here announced. It is sometimes a hard rule, undoubtedly, upon individual creditors and upon families, that a man's whole estate should be swept away, to pay a debt due to the government; but courts of justice can only expound and apply the law; and if, upon a fair and impartial examination of the subject, they can ascertain its intent and meaning, their duty is simply to administer it, as it becomes applicable, in the various relations of life, to the rights and interests of the parties before them.
 

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