7 Ill. 414 | Ill. | 1845
The Opinion of the Court was delivered by
This was a bill in chancery filed by Ladd and others against Thomas Morgan. On a final hearing of the cause, a decree was rendered directing, among other things, the payment to Morgan of $92-54, brought into Court by the complainants and deposited with the clerk. Morgan has brought the record into this Court, and assigned errors. The defendants in error have filed a plea, averring, that after the entering of the decree, and before the sueing out of the writ of error, Morgan accepted the said sum of $92-54, and thereby released all errors. To this plea, Morgan has filed a replication, alleging, that after the receipt of the money by him, he tendered back the same to the clerk, who refused to receive it; and offering to bring the money into this Court to be subject to its order and direction. There is a demurrer to this replication.
The plea is good. The acceptance of the money op eraste d as a release of errors. The case of Thomas v. Negus & Robbins is in point, and subsequent reflection has but confirmed us in the propriety of that decision. The replication presents no valid answer to the plea. It admits the receipt of the money, but seeks, by restoring it; to avoid the effect of the plea. We think this cannot be done; counsel may have inferred otherwise, from an incidental expression in the case before referred to. The remark was not intended as the expression of an opinion by the Court; this question was not there decided or considered. As it has now arisen, we have attentively considered it, and are disposed to adhere strictly to the rule laid down in that case, that a party, who voluntarily receives the benefit of a decree, shall not be allowed afterwards to allege that it was erroneous. The errors are released by his voluntary act; when thus waived, he cannot again assert them.
The demurrer will be sustained, and the writ of error dismissed with costs.
Writ dismissed.
