#### Thomas Reynolds, Appellant, v. James Mitchell and others, Appellees.

APPEAL FROM ST. CLAIR.

Where judgment is rendered by a justice of the peace, for a greater amount than the defendant owes, his remedy is not by application to a court of equity, but by appeal to the circuit court.

It is right to dissolve an injunction and dismiss the bill, without compelling an answer from all the defendants.

This was a bill in chancery, filed by Reynolds against Mitchell and others. The bill states that Reynolds made his note in 1821, to one Wm. Small, for one hundred state paper dollars, or bills of the State Bank of Illinois, which Small assigned in the same year to Mitchell, who is made defendant to the bill, and that said Mitchell, as assignee of said Small, afterwards brought his action on said note, before one Edmund F. Wilkinson, a justice of the peace for St. Clair county, on the 21st of September, 1822, and obtained a judg*178ment on said note for 99 dollars and 99 cents, and that said Wilkinson, who is also made defendant, combining and .confederating with the said Mitchell to defraud said Reynolds, rendered judgment on said contract for so much specie, when the said paper, when the note became due, was worth only 40 cents to the dollar, and that the justice had no power to give judgment for the nominal amount of the note in specie. The bill further alleges that Reynolds, at the time the judgment was rendered, offered to the justice the amount of the note in bills of the State Bank, which were refused— that an execution has issued on said judgment for specie which Reynolds replevied for three years, after the expiration of which, another execution issued for specie, which was levied on the personal property of Reynolds. The bill prays for an injunction, and the defendants to answer, &c. Mitchell alone answered the bill, admitting the purchase of the note from Small, and the rendering judgment thereon, and the replevy, &c.,but denies that Reynolds ever offered to the justice the amount of the note before the judgment, averring his willingness to take it before the judgment, but not after, and contended that as Reynolds did not pay the note in State Bank paper before the judgment, and when it was due, that he was entitled, therefore, to recover the value of the amount of said state paper, at the time the note fell due, and that said justice had a right to determine judicially what that value was, and that he did determine it to he 99 dollars and 99 cents, as stated in the bill. He also pleads the judgment and replevy in bar of all equity—denies that state paper was not worth more than 40 cents to the dollar, and all fraud, combination, &c. Upon filing this answer, a motion was made to dissolve the injunction and dismiss the bill, which was sustained by the court, and an appeal taken to this court. It was assigned for error that the court erred in dismissing the bill and dissolving the injunction, for the reason, First, because the justice had no right, by law, to render a judgment for specie, on the note ; and Second, because a decree was made, and the injunction dissolved, when the parties in interest, and charged in said bill, had not answered, to wit, the justice Wilkinson.

Opinion of the Court by

Justice Lockwood.

The court are of opinion, that the appellant has misconceived his remedy. If the judgment before the justice was rendered for too great an amount, the remedy was an appeal to the circuit court. The plaintiff having neglected to take an appeal, can not now be relieved in equity. The court had a right to dismiss the bill, and dissolve the injunction, without compel*179ling an answer from all the defendants. The judgment is affirmed with costs. (1)

Cowles, for appellant.

Blackwell, for appellee.

Judgment affirmed.

(1)

In Sims v. Hugsby, post, a default was entered against the defendant, and the clerk ordered to assess the damages. The clerk, in making the computation, overlooked a credit indorsed on the note sued on, and thereby entered the judgment for more than was due. The supreme court, in that case, said: "If the clerk, in the discharge of that duty, (assessing damages,) should allow either too much or too little, the court, under whose direction it is made, will, upon motion, correct it. To that court, then, and not to this, the application should be made.” And again in Wilcox v. Woods et al., 3 Scam., 51, “It is alleged that the court erred in rendering judgment for a larger amount than the note, as set out in the declaration, shows the plaintiff entitled to recover. This can not be assigned for error. The proper remedy of the party was by motion in the court below, where the error could have been corrected.” This was again repeated in Smith v. Lusk, 3 Scam., 411. But I can not satisfy myself that the principle intended to be established by these cases is correct. In the cases referred to, the decisions were correct so far as they related to those particular cases, because the notes not being a part of the declaration, and not being preserved in any manner in the record, the court could not see that the assessments were too large. But suppose a note is set out in hcec verba in the declaration, thereby making it a part of the declaration, and the record shows the judgment to be for more than the plaintiff sued for, why is it not error that the supreme court can reform ? Suppose a verdict to be found by a jury; the evidence is preserved by a bill of exceptions; and from that the court sees the plaintiff has obtained a verdict to which he was not entitled, and will set it aside without hesitation. And why? Because the record shows the verdict is too large. Now if the clerk, instead of a jury, assess the damages, and commits an error, and the record shows the error, why is it not the duty of the appellate court to correct it as well as if it had been the fault of a jury ? Can there be any reason why the court will interpose to correct the errors of a jury, and not of a clerk, when the record in both cases shows the error ?

In a late case, Sexton v. School Com’r, 19 Ill., 51, the court in fact decided in accordance with these views, although the report does not show that this question was raised. The action was on a note executed to the school commissioner. A default was entered, and the clerk in assessing damages included twelve per cent, interest, and this was reversed, although the error was not preserved in the record in any other manner than the statement made in the declaration, and the judgment. See also, 6 Mass. Rep., 272. 2 Wash. Rep., 173.

An injunction may be dissolved, on motion, before answer, where there is no equity on the face of the bill. Richard et al v. Prevo, post. Puterbaugh v. Elliott et al., 22 Ill., 157. Beaird v. Foreman, post.