This is a proceeding by scire facias to foreclose a mortgage. To the writ a general demurrer was filed, which the court overruled, and leave was given to withdraw the demurrer and plead.
The defendant then filed three pleas, and to one of them, the third, there was a demurrer, which was sustained, and leave given to amend; and to this amended plea there was also a demurrer, which was also sustained.
The errors assigned question the correctness of these decisions.
The proceeding by scire facias to foreclose a mortgage, is a proceeding in rem, and the writ is considered both as process and declaration, and defects therein can be reached by demurrer. Marshal v. Maury, 1 Scam. R. 231.
The defect in the writ is very apparent. It does not run in the name of “ the People of the State of Illinois,” as the constitution declares all writs and process shall run. The writ is void on its face, and the objection can be raised by general demurrer, though it would be more proper to reach it by motion to quash.
This court has decided that a fee-bill, which by law has the force and effect of an execution, is void, if it does not run in the name of the People of the State of Illinois. Reddick v. Cloud’s Adm’r, 2 Gilm. R. 678; Ferris v. Crow, 5 ib. 100; and cases there cited. So in a criminal case, if the indictment does not contain the words “ in the name and by the authority of the People of the State of Illinois.” Breese R. 4.
The court should have sustained the demurrer to this scire facias. But as the party withdrew the demurrer and pleaded over, he cannot assign this as error, for by pleading, the demurrer is waived. Buckmaster v. Grundy, 1 Scam. R.; Gilbert v. Haggard, ib. 471. It has, however, been decided by this court, (the President and Directors of the State Bank v. N. Buckmaster, Breese R. 133,) in precisely such a case as this, that the omission of these words in a writ of sci. fa. is a mere misprision of the clerk, and is amendable after a motion is made to dismiss, on account of the omission. Here no motion was made to amend.
On the trial, the mortgage was introduced as evidence, which, showed an instrument under seal. That set out in the scire facias, is not under seal. The variance is apparent, and the mortgage therefore should have been excluded.
It is urged by the appellant that the demurrer to the amended plea should be carried back to the declaration, although a demurrer had been overruled as to the scire facias.
As a general rule, when the declaration or scire facias is so defective that the judgment would be arrested, the demurrer would be carried back to it, and judgment given against the party committing the -first error. But in this case the judgment would not be arrested on account of the imperfection of the writ, for appearance and pleading cures the defect; and this is the rule even in the case of void process like this. Easton v. Altum, 1 Scam. R 250.
The demurrer was properly sustained to the third plea amended, because it does not allege that he confided in and relied upon the representations of the plaintiff as set out in the plea. It is not shown they were the causes which induced the execution of the deed.
The rule adopted for computing the interest was correct.
The rule is now nearly universal, that in casting interest on notes, bonds, etc., upon which partial payments have been made, every payment is to be first applied to keep down the interest, but the interest is never allowed to form a part of the principal so as to carry interest.
The correct rule in general is to calculate interest whenever a payment is made; to this interest the payment is first to be applied, and if it exceeds the interest due, the balance is to be applied to diminish the principal. If the payment falls short of the interest, the balance of interest is not to be added to the principal so as to produce interest, but is to be set apart, to be extinguished, together with the accumulated interest, by the next payment, and so on until final payment or judgment, the principle of the rule being that interest is to be first paid.
There is great uniformity in the courts of the different States on the propriety of this rule. Lightfoot v. Price, 4 Hen. & Mun. R. 431; Smith v. Shaw’s Adm’r, 2 Wash. C. C. R. 167 ; Penrose v. Hart, 1 Dallas R. 379 ; 8 Serg. & R. 458; 1 Pick. R. 194; 17 Mass. R. 417.
For the variance, however, between the mortgage set out in the sci. fa. and the one offered in evidence, the judgment is reversed and the cause remanded.
Judgment reversed.