#### The President and Directors of the State Bank of Illinois, Plaintiffs in Error, v. Hazle Moreland, Defendant in Error.

ERROR TO GALLATIN.

It is regular, under the act of 1825, concerning judgments and executions, to proceed to foreclose a mortgage for money borrowed of the state bank, by scire facias.

Opinion of the Court by

Justice Lockwood.

This action was commenced by scire facias in the Gallatin circuit court, on a mortgage executed to plaintiff, and recorded according to law.

The defendant demurred to the scire facias, and judgment was rendered for defendant. The cause was brought into this court by writ of error. The error relied on is, that the circuit court decided erroneously in sustaining the demurrer to the scire facias.

It is understood by the court, that the circuit court, in sustaining the demurrer, went upon the ground that the bank mortgages do not contain an absolute promise to pay the money, but in order to charge the mortgagor, it is necessary to refer to a promissory note, dehors the mortgage, in order to assign a breach of the condition of the mortgage. If this constitutes a valid objection to proceeding by scire facias on the mortgage, then the demurrer was properly sustained. By the 18th section of the act concerning judgments and executions, passed 17tli of January, 1825,* it is enacted, “that if default be made in the payment of any sum of money, secured by mortgage on lands and tenements, duly executed and recorded, and if the payment be by installments, and the last shall have become due, it shall be lawful for the mortgagee, his executors, or administrators, to sue out a writ of scire facias, from the clerk’s office of the circuit court in which the said mortgaged premises may be situated, or any part thereof, directed,” &c. If language is comprehensive enough to authorize this proceeding by scire facias, the legislature have certainly employed it in this statute. *283Whenever default is made in the payment of any sum of money secured by mortgage, and the last installment is due, the mortgagee is allowed to proceed by scire facias. The payment of the money borrowed of the bank was certainly secured by mortgage, and consequently the plaintiffs were authorized to proceed by scire facias. The court are at a loss to perceive any solid objection to this mode of recovering the money due the bank.

Eddy, for plaintiff in error.

The judgment must therefore be reversed, with costs, and the cause remanded to the Gallatin circuit court for further proceedings. (1)

Judgment reversed.

*

Laws of 1825, p. 157.

(1)

See note to Cox v McFerron, ante, p. 28,