Fayette County IL Archives Court.....Ernst, Heirs Vs. President State Bank 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:23 pm

Source: Reports Of Cases Illinois
Written: 1819-31

November Term, 1824, VANDALIA.


The Administrators, Widow, and heirs of T. Ernst, deceased, Plaintiffs in 
Error, v. The President and Directors of the State Bank of Illinois, 
Defendants in Error.

ERROR TO FAYETTE.

A debt due the State Bank secured by mortgage, is a debt due the state, which 
the state can release.

Ferdinand Ernst, in his lifetime, on the 31st day of August 1821, and Mary Ann 
his wife, made their mortgage to the defendants, to secure the payment of 
eight hundred dollars, twelve months after the date, according to the tenor of 
a certain note made by Ernst on that day, for the use of the people of the 
state of Illinois. This mortgage not being satisfied, nor the money secured 
thereby paid, the defendants in error sued out of the circuit court of Fayette 
county, a writ of scire facias on the mortgage. At the return term of the 
scire facias, the plaintiffs in error appeared and pleaded a release of the 
mortgage debt, by an act of the general assembly of the state, entitled "An 
act to authorize the administrators of F. Ernst to sell certain real estate."

To this plea there was a demurrer and sustained, and judgment for the mortgage 
debt.

Starr, for the plaintiff in error contended, first, that it was competent to 
the legislature to release and discharge the mortgage debt; and second, the 
bank was nothing more than a trustee for the people, and the cestui que trust 
may release a debt due to the trustee.

Blackwell, contra.

Opinion of the Court by Justice John Reynolds. This was a scire facias upon a 
mortgage. Ernst, in his lifetime, loaned from the state bank of Illinois, 
eight hundred dollars, and to secure the payment of that sum, executed the 
mortgage deed, as alleged in the scire facias. The bank obtained judgment in 
the circuit court of Fayette county against the plaintiffs in error, to have 
the mortgaged premises sold, and to reverse that judgment this writ of error 
is prosecuted.

In the court below the plaintiff's in error pleaded a statute passed Feb. 18, 
1823,* by the general assembly of this state, in bar of this demand. To this 
plea there was a demurrer, which presents to the court the statute above 
referred to.

On a lull and correct examination of the above recited act, it appears to the 
court to embrace this case. It was the intention of the legislature to release 
the estate of Ernst, from all debts due the state. The above debt is due the 
state. The judgment of the court below must be reversed at the costs of the 
defendants in error. (a)

Judgment reversed.

------------------
* Laws of 1823, page 177.

(a) The part of the act of 1823 referred to, is as follows: " And the estate 
of the said F. Ernst, deceased, is hereby released from the payment of any 
debt due by said estate to this state."  Laws of 1823, page 178.

The act establishing the state bank, at page 85, (laws of 1821) requires that 
the notes and mortgages shall be made "payable to the president and directors" 
of the bank, "for the use of the state."

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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