delivered the opinion of the court:
It was not error to refuse to set aside the submission of the cause to the court without a jury. The parties stipulated that the cause should be submitted to and heard by Judg*e Stein upon the printed abstract of the record upon which the cause was submitted to this court upon a former appeal, and upon the original files and papers referred to in the said abstract, or the bill of exceptions from which the abstract was prepared, and that no other evidence should be introduced, and it was so submitted. The cause was decided upon the evidence thus stipulated, and none other, nor did either party express any desire to introduce any further or other testimony.
The original replication averred, the agreement that the lien of the execution should be subordinated to that of the writs of attachment was entered into with the plaintiff, Ives, the constable, and the additional replication averred that the attaching creditors, Geddes and Graff, were also parties to the same agreement. Ives, the plaintiff, in his capacity as constable, was but the representative of Geddes and Graff, plaintiffs in the attachment writs, and his agreement, if made with the consent of the attaching creditors, was but their agreement, and the issues were in no material legal aspect changed by the averment of the additional or amended replication that the plaintiffs in the attachment proceeding's were also parties to the agreement. Certainly, in the absence of any indication that the appellants desired, or that the issue made by the amended replication made it necessary, to produce any testimony other than that already before the court by the stipulation of the parties, there was no reason the court should have set aside the submission of the case and directed that a jury should be impaneled to determine the cause which had already been decided by the court. We do not think the issues were in fact changed by the additional replication, nor that such replication was at all necessary to enable the court to properly apply the evidence which the parties had stipulated should be the only testimony heard in the case. The additional replication, if necessary, was, in effect, but an amendment of the original replication, allowed for the furtherance of justice, and was authorized by the provisions of section 1, chapter 7, of the Revised Statutes, entitled “Amendments and Jeofails.”
There is no force in the suggestion the decision of this court in the former appeal is conclusive upon any point now appearing" in the record. We held on the former appeal, that as a matter of law the lien of the execution was superior to that of the attachment writs, and that whether such lien had been made secondary by agreement of the parties was a question of fact for the determination of the jury before whom the former trial was had, and that the trial court erred in assuming", by an instruction, to determine that question of fact for the jury. Hanchett v. Ives, 183 Ill. 332.
The position of counsel for appellants that a breach of the agreement to postpone the lien of the execution could have no other effect than to entitle the party damnified to an action to recover damages, is not tenable. The appellants took the stallion from the possession of the appellee, and sought to justify such taking by pleading the superior lien of the execution. It was competent for the parties to be benefited by such superior lien to contract to postpone it, and if they did so they could not plead the advantage which they had contracted away as a justification for seizing the horse. The seizure of the horse was a trespass, unless justifiable, and was not justifiable if the right relied upon had been destroyed by a legal contract. Such a contract, to be available, must, of course, be supported by a sufficient consideration. The pleadings averred, and the evidence tends to show, the attaching creditors claimed that the judgment upon which the execution was issued had been confessed when no debt really existed, and was fraudulent and void, and their agreement they would not contest the validity of the judgment if the priority of the execution should be abandoned supplied the requisite consideration. The compromise of an asserted doubtful right is a sufficient consideration for a promise. (McKinley v. Watkins, 13 Ill. 140; Honeyman v. Jarvis, 79 id. 318; 1 Chitty on Contracts,— 11th Am. ed.—p. 46.) In Honeyman v. Jarvis, supra, the question was fully discussed, and the principle has been so frequently decided in other cases in this court it must be regarded as settled law.
It was not essential to the sufficiency of the agreement as a legal consideration for the contract to postpone the lien of the execution, it should have appeared from the testimony the supposed grounds of attack upon the judgment were well founded. Upon that question this court in Honeyman v. Jarvis, supra, quoted with approval the remarks of Lord Hardwicke, 1 Atkyns, 12, as follows: “An agreement entered into upon a supposition of a right, or of a doubtful right, though it after comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties, for the right must always be on the one side or the other, and therefore the compromise of a doubtful right is a sufficient foundation of an agreement.”
Nor can we assent to the insistence of counsel for appellants that the judgment cannot be maintained as against appellant Hanchett, the sheriff, on the ground he was protected by the execution, and was not a party to, had no knowledge of and was not bound by the agreement. Whether he was a party to the agreement or had knowledge or notice of it was a question of fact, which we are precluded from considering by the judgment of the Appellate Court, there being evidence tending to make him a party to the agreement. The levy endorsed upon the execution by the deputy sheriff in express terms recognized the agreement, and purported only to be a levy secondary to that of the constable made by virtue of the attachment writs. Section 12 of chapter 125 of the Revised Statutes, entitled “Sheriffs,” expressly declares the act of a deputy sheriff “shall be held to be the act of the sheriff.”
It was not error to sustain the demurrer to the rejoinder of the Statute of Limitations to the additional replication. The replication first filed set up in defense, to the plea of justification an agreement that the lien of the execution should be postponed to that of the writs of attachment. The additional replication but re-státed the same ground of avoidance of the plea of justification, and alleged that the agreement relied upon in the first replication was that of the attaching creditors as well as that of the plaintiff, the constable. It did not introduce new and different matter in avoidance of the plea of justification, but only re-stated the original ground. Illinois Central Railroad Co. v. Cobb, Christy & Co. 64 Ill. 128; Dickson v. Chicago, Burlington and Quincy Railroad Co. 81 id. 215; Mitchell v. Milholland, 106 id. 175.
The objection that there is no evidence to support the averment in the replication is not well taken. We find testimony tending to support the agreement set forth in the replication, and the affirmance by the Appellate Court of the judgment of the lower court must be accepted by us as establishing that it was proven by the preponderance of the evidence.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.