text:
    Village of Jefferson v. Georgia Chapman.

      Municipal Corporations — Personal Injuries — Defective Sidewalk— Agency — Notice—Evidence—Instructions—Practice.
    1. A municipal corporation, incorporated under the general law, is liable to any party injured, while exercising ordinary care, by reason of a breach of its duty to keep its streets and sidewalks in a reasonably safe condition for traveling in the ordinary modes.
    2. A municipal corporation can not escape liability for an injury caused by the use of defective material in restoring a cross-walk over a ditch, on the ground that the work was done by an independent contractor, if the reinoval of the walk was a necessary incident of the work which he was directed to perform.
    3. Where it is sought to hold a municipal corporation liable as the direct author of the nuisance complained of, notice by lapse of time or otherwise is unnecessary.

      4. It is proper to reject evidence which is inadmissible for the purpose for which it is offered, although admissible for other purposes. The party making the offer will be confined in this court to the offer made at the trial.
    5. It is proper to refuse instructions touching an issue which is immaterial upon the theory of the case as tried.
    [Opinion filed June 13, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.
    This was an action by the appellee against the village corporation, appellant, to recover for a personal injury to the former, while traveling on the sidewalk along St. Charles Avenue after dark December 2, 1885, occasioned by the sudden tipping of a loose plank of a defectively constructed crossing over a ditch at the intersection of said street with Center Street in said village.
    The declaration contained three counts, of which the first, after setting out the legal duty of the corporation, charged the defendant with having negligently suffered the said cross-walk to be and remain in a bad and unsafe condition on account of the plank thereof being unfastened and insecure, and to so continue for such a period of time before said injury, as that defendant might, by the use of reasonable care and diligence, have discovered the defects and repaired the same, setting out the special circumstances of the injury.
    The second count avers that defendant, having removed a cross-walk at the place in question for the purpose of repairing the street and improving the drainage, in restoring the same, negligently used decayed and broken planks, placed and left the same without nailing or fastenings, etc.
    The third count charged, in substance, that defendant negligently caused said cross-walk to be constructed of decayed and broken planks and left the same across said ditch without being nailed or otherwise fastened, etc.

      The evidence tended to show that a few days before the injury to plaintiff, persons employed by the defendant had been at work regulating the grade, cleaning out and deepening the ditch at the place in question; that the removal of the apron made of planks, and being the crossing over said ditch, which had been there and used as a crossing previously, was a necessary incident to the doing the said work; that it had been removed as a part of said work by said persons, and without such crossing the street was dangerous to travelers on foot; that just before the time of plaintiff’s injury, said persons doing said work, attempted to reqdace the apron or crossing over said ditch; that some of the planks used were rotten at the end, were unfit for the purpose, were improperly laid and left without reasonably safe supports or fastenings; that on the evening of December 2, 1885, a little after dark, the plaintiff, while traveling along St. Charles Avenue, being wholly unapprised as to the situation of said apron or crossing, and in the exercise of due care, walked upon the said apron as a part of the street crossing, when a plank thereof, on which she had stepped, suddenly tipped out of its proper place, by reason of which her right foot and leg went down toward the bottom of the ditch while her body was thrown violently backward and down upon the planks, thus inflicting a severe, painful and probably permanent injury, involving the spinal and uterine regions of her body.
    The defendant introduced evidence tending to show that the work in question was done under a verbal contract between it and one Goven, and asked of one of the trustees of the village, who had been called as a witness, “what was the contract ? ” Upon objection by the plaintiff’s counsel, the counsel for defendant thereupon stated to the court: “ We want to show that this-work was done by contractors without any supervision of the village authorities; that this apron was placed in its dosition and in the condition in which it was at the time of this accident by the contractors, without any supervision, or without any influence, or without consent of the village authorities.” The court excluded the offer, and defendant excepted. Counsel for defendant thereupon made the following offer of evidence:
    Mr. Cox: How, we offer to prove by this witness, as one of the trustees of the town of Jefferson, and Henry WoIffe> as another trustee, that they were authorized by the board of trustees of the village of Jefferson to make a contract for the grading of St. Charles Avenue and Center Streets, at the point where the accident is alleged to have occurred; that, in accordance with this authority, they made a contract with one Coven for the grading of such streets; that said Coven, acting under said contract, proceeded with the work of grading said street, and that he, in the prosecution of that work, removed the apron over the ditch where the accident was alleged to have occurred; that the village retained by the contract no control or supervision over the work; that said contractor proceeded with said work until the close of the!2d day of December, 1885, and on the evening of said day, prior to the accident, replaced the apron in the condition in which it remained at the time of said accident.
    This offer was likewise excluded by the court, and the defendants excepted. Ho other evidence upon the points was offered.
    The defendant requested the court to give the following, among other instructions, but the court refused to give the same:
    “The jury are instructed, that in order for the plaintiff to recover, she must show that the village had actual or constructive notice of the defect in the sidewalk; and that when a dangerous place is made in the sidewalk by third parties, unknown or without the knowledge or consent of the village authorities, the village can not be deemed negligent until knowledge or notice of such defect is brought home to the officers of the village, unless the dangerous place has existed for such a length of time before the injury, that the village authorities might or ought to have known of its existence by the use of reasonable diligence.
    “If the jury believe, from the evidence, that the sidewalk in which the defect is alleged to have been, and where the plaintiff is alleged to have been injured, was properly and safely constructed and laid down, and prior and up to or about the time of the alleged injury, it appeared to be in proper and safe condition, then, if there be no evidence that the defendant had actual knowledge of such defect, or that the defect existed for such a length of time before the injury that the defendant might or would have known it by the use of reasonable diligence, the jury should find the defendant not guilty.
    “Notwithstanding the jury may believe from the evidence that the sidewalk at the time of the alleged injury was defective, yet this fact alone would not be sufficient evidence of negligence on the part of the defendant. In order to charge the defendant with negligence, it must appear from the evidence not only that the sidewalk was defective at the time of the alleged injury, but it must further appear that such defect was actually known to the village through some of its officers, agents or sei'-vants, or that the defect had existed for such a length of time prior to the alleged injury that the village, in the exercise of ordinary care, would or should have known of the defect.”
    There was a verdict for plaintiff, and damages assessed at §6,000, and the judgment thereon is brought here by appeal, the appellant assigning for error, among other things, the exclusion of said offers of evidence and refusal to give said instructions.
    Messrs. Jesse Cox and William M. Starlet, for appellant.
    The question fairly arose for the jury as to whether the cross-walk was, at the time of the accident, in the condition it was claimed to be in by the appellee, and whether, if it was then in such condition, it had been in such a condition for such a length of time that the authorities of the village ought, in the exercise of reasonable diligence, to have discovered the defect and repaired the walk. City of Chicago v. Murphy, 84 Ill. 224; City of Gilman v. Haley, 7 Ill. App. 349; City of Aurora v. Dale, 90 Ill. 46; City of Aurora v. Hillman, 90 Ill. 61; City of Chicago v. McCarthy, 75 Ill. 602.

      The evidence showed, or tended to show, that the defect in the walk was not caused by any act of the contractor, but that it existed, if it existed at all, prior to the removal of the walk by the contractor, and was due to the rotting of the planks, and the natural and ordinary wear and tear of the cross-walk. The fact, therefore, that this contractor removed and replaced the cross-walk in question prior to the accident, furnished no excuse for the court refusing to give the fourth, fifth and sixth instructions asked for by the appellant. The appellant -was entitled to an instruction upon any theory of the case which it might adopt, if there was any evidence which might support such theory. Bennett v. Connelly, 103 Ill, 50; Peoria M. & F. Ins. Co. v. Anapow, 45 Ill. 86; Wooters v. King, 54 Ill. 343.
    Aotiee to the contractor or his men of the alleged defect in the cross-walk was not in any sense notice, either actual or constructive, to the village authorities. He was neither officer, agent, nor servant of the defendant corporation. City of Chicago v. McCarthy, 75 Ill. 602; Hale v. Johnson, 80 Ill. 185; City of East St. Louis v. Griblin, 3 Broad. 219.
    While it may be admitted that a municipal corporation is bound to use due diligence to see that work authorized to be done under contract, is done in such a manner as not to expose others to injury, in a case where, from the character of the work to be done, danger necessarily ensues, yet it is well settled that where the work authorized is not necessarily dangerous, where the injury results not from the dangerous nature of the work itself, authorized by the corporation to be done, but from the negligent manner in which it is done by the contractor, the municipal corporation is not liable. Pack v. The Mayor, 8 N. Y. (4 Selden), 222; Kelly v. The Mayor, 11 N. Y. (1 Kernan), 432; 2 Dillon on Mun. Corp., Secs. 1027 to 1033, and cases cited in notes.
    And especially is this true where, as in this case, the obstruction or defect in the street (if any there was), causing the injury, is wholly collateral to the contract work, and is charged by the plaintiff to be entirely the result of the negligent and wrongful acts of the contractor, sub-contractor or his servants. In such a case a municipal corporation is not liable. 2 Dillon on Mun. Corp., Sec. 1030; Robbins v. The City of Chicago, 4 Wallace, 657. The eases of the City of Springfield v. LeClaire, 49 Ill. 476, The City of Chicago v. Johnson, 53 Ill. 91, Storrs v. The City of Utica, 17 N. Y. 104, do not at all conflict with the doctrine contended for.
    The statute limits the amount of damages for loss of life to §5,000, and certainly by analogy, in cases where life is not lost, where the capacity of labor remains, and where it does not certainly appear that the injuries will be permanent, a verdict of §6,000 for an injury of the kind claimed in this case is certainly excessive. In this State, we insist that the courts have uniformly discountenanced verdicts of this amount in cases of this kind. Kepperly v. Ramsden, 83 Ill. 354; Ill. Cen. R. R. Co. v. Welsh, 52 Ill. 183; City of Chi cago v. Langlass, 52 Ill. 256; Chicago, R. 1. & P. R. R. Co. v. McAra, 52 Ill. 269; Chicago & N. W. R. R. Co. v. Jackson, 55 Ill. 492.
    ■Messrs. Monk & Elliott, for appellee.
    A municipal corporation is liable, without notice, for a defect caused by its own negligent act.
    It is only when the defect results from natural wear and decay, or some other cause, for which the corporate authorities are not responsible, that notice is essential to recovery for injuries occasioned thereby. A party is not entitled to notice of his own acts. Springfield v. Le Claire, 49 Ill. 476; City of Chicago v. Johnson, 53 Ill. 91; Alexander v. Mt. Sterling, 71 Ill. 366; City of Chicago v. Brophy, 79 Ill. 277; Burso v. Buffalo, 90 N. Y. 679; Russell v. Inhabitants of Columbia, 74 Mo. 480; Mayor v. O’Donnell, 53 Md. 110; Circleville v. Nenbing, 41 Ohio State, 465.
    Municipal corporations are under an affirmative duty to see that the streets are kept free from such dangerous places, and are bound to exercise a reasonable degree of care and oversight to that end. The fact that work is being done upon the streets is no excuse for surrendering the control and supervision of them to a contractor. When such work is let to a contractor, it is the duty of the corporation to retain and exercise sufficient control and supervision to enable it to see that the work is carefully and properly done. City of Springfield v. Le Claire, 49 Ill. 476; Lesher et al. v. Wabash Navigation Co., 14 Ill. 85; Hinde v. Same, 15 Ill. 72; Chicago, St. Paul & Fond du Lac R. R. Co. v. McCarthy, 20 Ill. 385; Scammon v. The City of Chicago, 25 Ill. 424; City v. Brophy, 79 Ill. 277; City of Chicago v. Johnson, 53 Ill. 91; R., R. I. & St. L. R. R. Co. v. Heflin, 65 Ill. 366; Cairo & St. Louis R. R. Co. v. Wolsey, 85 Ill. 370; West v. St. L., V. & T. H. R. R. Co, 63 Ill. 545; Mayor, etc., v. Brown, 9 Heiskell, 1; Mayor v. O’Donnell, 53 Md. 110; Circleville v. Nenbing, 41 Ohio St. 465; City of Detroit v. Corey, 9 Mich. 165; Russell v. Inhabitants of the Town of Columbus, 74 Mo. 480; Mayor v. Donnelly, 71 Ga. 258; McWilliams v. Detroit City Mills Co., 31 Mich. 274; Stores v. City, 17 N. Y. 109; Robbins v. City of Chicago, 4 Wall. 657.
    It is submitted that the authorities cited are decisive of this case. Nor do these decisions rest upon mere arbitrary dictum. They depend upon and enunciate a principle founded in justice and reason. The village was made a body politic upon the condition that the trust confided to it be duly executed. Valuable franchises and powers were conferred upon a known and responsible body, and it would be intolerable if, while retaining the franchise, the obligations imposed for the benefit of the public could be shuffled off upon transient and irresponsible contractors. Georgia Chapman had no voice in the selection of the contractors who should do this work, nor in determining what precautions should be observed to have it done in a careful and prudent manner. She had nothing to say as to what provision should be made for the indemnity of the village against lawful claims arising from their negligence. All of these matters were in the hands of the village authorities, and if they surrendered the control of the street into the hands of irresponsible parties, without taking any security for the indemnity of the village, it was their own fault, and they should be answerable for it.
   McAllister, J.

The village of Jefferson, the appellant, is a municipal corporation, created under the general statute relative to cities and villages in this State, by which the corporation is invested with ample powers in trust for the purpose, and from which the legal duty to the public arises, of keeping its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by day as well as by night, by all persons in the exercise of ordinary care. 2 Dillon on Mun. Corp., 3d Ed., See. 1019. And it is the general, well settled law in this State, that such corporation is liable to any party injured while exercising such care, by reason of a breach of that duty. Browning v. City of Springfield, 17 Ill. 143; City of Bloomington v. Bay, 42 Ill. 503; City of Rockford v. Hildebrand, 61 Ill. 161.

We are of opinion that the verdict in this case was fully justified by the evidence. Counsel for appellant contend, that if the work upon the street and ditch in question was done by an independent contractor over whom, in doing such work, the village authorities had no control, and the work contracted to be done was not itself dangerous, then the village would not be liable and the remedy must be held that the trial court erred in rejecting the respective offers of evidence on defendant’s behalf to that effect.

The difficulty with the counsel’s position is, that one essential element is wanting in each of the offers made. Neither of them can fairly be construed as embracing any proposition to prove anything beyond the mere facts of there being a contract between defendant and Goven for doing the work in question; that it was done by the latter under such contract; and that, by the terms of the contract, the defendant had no control over the contractor as to its performance. On neither offer was there any intimation of a purpose or desire to prove that the work contracted for was not of itself dangerous, or would not necessarily render the street defective or unsafe or dangerous for travel, or that the removal of the apron, which formed a part of the cross-walk over the ditch was not a necessary incident to the doing the work contracted for.

The evidence tended to show that the removal of said apron was a necessary incident, and that it would render the crossing defective and dangerous, especially in the night time, on account of the width and depth of the ditch.

If the removal of the apron was a necessary incident of the work directed to be done, and it would necessarily render the street defective and dangerous for the purposes of travel, unless such apron was restored in a reasonably safe condition, or the place provided with guards or protection, then the defendant was subject to the statutory obligation or duty to the public to make such restoration or provide such guards or protection; and failing therein, the defense that the work was done by an independent contractor is wholly inadmissible-The defendant, under such circumstances, must, in the eye of the law, be regarded as the direct author of the nuisance which resulted in the injury to the plaintiff. 2 Dillon, supra, Secs. 1029, 1030 and 1031; City of Springfield v. Le Claire, 49 Ill. 476; Joliet v. Harwood, 86 Ill. 110; Lockwood v. Mayor, 2 Hilt. 66; Storrs, v. Utica, 17 N. Y. 104; Savannah v. Waldner, 49 Ga. 316; Murphy v. Lowell, 124 Mass. 564.

If we are correct in the above views of the law, then it must follow that there was no error in rejecting said offers of evidence, because,' taking them as they were respectively made, the evidence proposed was immaterial, and it was not admissible for the purpose for which it was offered. If it was admissible for any other purpose, or by having some other matter coupled with it, then it was the duty of the counsel making the offer to specify such other purpose or matter, and failing to do so, the exception must fail. The party making the offer must be confined in the Appellate Court to the specific offer which lie made at the trial. Wheeler v. Rice, 8 Cush. 208, and cases there cited; Beard v. Dedolph, 29 Wis. 136; Jones v. The State, 11 Lea (Tenn.) 468.

The only other point we deem worthy of mention, is the refusal to give the several instructions asked for defendant and set out in our statement of the case. The pith of them all is as to the requirement of notice to the defendant corporation of the obstruction or defect in the street, as an element of the cause of action.

It is true that the first count in the declaration sets out a cause of action wherein such requirement is a necessary element. But the second and third counts respectively charge the defendant as the direct author of the nuisance in the street and as for acts of positive misfeasance. In such a case, notice to the corporation by lapse of time or otherwise, is unnecessary. City of Chicago v. Johnson, 53 Ill. 91.

The case was tried on behalf of plaintiff wholly upon the theory of the defendant being the direct author of the nuisance, and the evidence supported that theory. In each of the instructions in question, that feature of the case is wholly ignored; for that reason they were properly refused. To have given them would simply be the giving instructions calculated to mislead the jury.

We think the merits of the case were clearly with the plaintiff-; that ihe verdict is well supported by the evidence ; and that, taking the instructions all together, the jury was fairly and properly instructed as to every material point of law. The judgment should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Moran, P. J.

license: Public Domain

text:
    John J. McGillis and Henry W. King, Impleaded, Etc., v. F. W. Bishop.

      Trespass de Bonis Asportatis — Sheriff—Attachment Writ, as Justification — Jurisdiction—Pleading—New Assignment — Trespass ab Initio— Joint Verdict — Damages.
    L Where the declaration states a case of trespass de honis asportatis, the wrongful seizure of the goods and chattels described is the gist of the action, the conversion of the goods alleged being mere matter of aggravation.
    2. Where the justification of a trespass is under a writ, warrant or other process of a court of record, and it is claimed that the defendant has been guilty of any illegal conduct or undue violence, the plaintiff should reply the facts or new assign. Matter showing that the defendant by subsequent misconduct became a trespasser ah initio should he specially replied.

      3. Where a joint verdict against two defendants must be set aside as to one of them, it can not stand as to the other.
    4. In an action of trespass against a sheriff and another to recover damages for an alleged wrongful levy on a stock of goods, it is held: That the sheriff may justify under an attachment writ regular on its face, although the subsequent proceedings were without jurisdiction because of an insufficient service or a defective return by the sheriff; that the attachment writ and evidence tending to show that the plaintiff was a fraudulent purchaser, were improperly excluded; that the pleadings furnished no foundation for the contention that the sheriff, by turning the plaintiff out and selling the goods under a void execution, became a trespasser db -initio; and that evidence touching the value of the good will of the plaintiff's business was improperly admitted and an instruction thereon improperly given.
    [Opinion filed June 14, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    This action was brought to recover against appellants for levying on a certain stock of goods which was in the possession of appellee at Peshtigo, in Wisconsin. The levy was made and the goods seized by McGillis as sheriff of Marinette Comity, under attachment writs from the Circuit Court of said county against Ferdinand Armstrong, one of the writs being in favor of King and his partners. The declaration contained two counts. The first alleged that plaintiff was possessed in his own right, at Peshtigo, in the State of Wisconsin, of a certain stock of general merchandise, together with store fixtures and business equipments, and was carrying on a general merchandising business, which property was of great value; that the said defendants, wrongfully and without just cause or excuse, entered upon the premises, then and there being occupied by the plaintiff as aforesaid, and seized, took and carried away all of the said stock of merchandise, store fixtures, etc., then and there being, and which were then and there the property of the plaintiff, and converted the same to tjieir own use; to the great wrong and injury, etc.
    Second count: ■ Plaintiff was at the day and year aforesaid, and at the place aforesaid, carrying on a business of great value, from conducting of which plaintiff was securing great profits, and was well entitled to carry on said business without hindrance; nevertheless defendants wrongfully and unjustly and without proper cause or excuse therefor, entered upon the premises then being occupied b.y plaintiff, and then and there seized and carried away all the goods, wares, fixtures, etc., then in the possession of, and owned by plaintiff, which were then and there of great value, and converted the same to their own use, and thereby broke np and destroyed said business of the plaintiff, by means whereof plaintiff sustained great loss and damage, etc.
    Appellant King pleaded not guilty; second plea, that property was the property of the plaintiff; and third, property in Ferdinand Armstrong.
    MeGrillis pleaded not guilty, and a special plea setting out the issuing from the Circuit Court of Marinette County, Wisconsin, on October 23, 1884, in an action commenced therein by King et al. against one Fred Armstrong, of a writ of attachment directed to the sheriff of said, county, commanding said sheriff to attach and safely keep all the property of said Armstrong within Ms county, or so much thereof as should be sufficient, etc., as security for the satisfaction of sucli jndganent as said King and others might recover in said action, which said writ of attachment was, on said October 23, 1884, delivered to said defendant, who then and there was sheriff of said county, to execute according to law. By virtu© of which said writ -of attachment and for the purpose of executing the same, said defendant on the day aforesaid peacefully entered the said premises, doing no unnecessary damage, and seized the said goods and chattels in the said declaration mentioned and removed the same im execution of said writs, which are the supposed trespasses above complained of. And said defendant further says that the said goods and chattels in the said declaration mentioned at the said time when, etc., were the property of the said Fred Armstrong, and not of the said plaintiff, and were subject to attachment, and said defendant says that the said writ of attachment was by him duly returned into said Circuit Court of Marinette County according to law, etc.

      A second special plea, substantially the same as the forsgogoing, was also filed by McGillis. To these special pleas plaintiff filed a replication de injuria and a traverse of the allegation in the pleas that tli.e goods were the property of Armstrong, and not of the plaintiff. Upon the issue thus formed the ease was submitted to a jury, and a verdict rendered in favor of appellee for $7,500, on which verdict judgment was entered, and this ease is brought to this court by appeal.
    Messrs. Tenney, Bashfokd & Tenney, for appellant.
    Messrs. W. P. Black and Fairchild & Fairchild, for appellees.
   Moran, P. J.

The declaration states a case of trespass de Imnis asportatis. The wrongful and unlawful seizure of the goods and chattels described is the gist of the action, just as in trespass quare elausum the breaking and entering the close is the gravamen of the charge. The conversion of the goods alleged in the declaration is but aggravation. Taylor v. Cole, 3.Tenn. 155; Gelston v. Hoyt, 3 Wheat. 326.

The defendant, McGillis, justified the seizure of the goods under a writ of attachment, and alleged that the goods were the property of the defendant in the attachment. Plaintiff put the whole plea in issue by his replication, and thus treated the plea as good in law, and as an answer to the whole declaration.

To establish his defense under this state off pleadings it was only necessary for McGillis to- prove that he seized the goods under a valid writ of attachment, and that the goods were the property of the defendant in the writ, and liable to attachment at the suit of a creditor. The writ of attachment offered in evidence was valid and regular in form, and the return of the sheriff thereon was, in our opinion, in strict conformity with the requirements of the Wisconsin statute relating to proceedings in attachment. See. 2736, R. S. of Wis.; Hopkins v. Laugton, 30 Wis. 379.

The court below excluded the writ from the consideration of the jury, and also excluded the evidence offered by defendants which tended to show that the goods and chattels levied on were the property of the defendant in the writ, and thus deprived defendant of all grounds of defense, and left no issue to be determined by the jury save the amount of the damages.

The ruling of the court in excluding the attachment writ and denying to the officer who executed it the justification which its command afforded to him, is sought to be supported on this appeal on two grounds. It is contended: First, that, the Circuit Court of Marinette County, from which said attachment issued, never obtained jurisdiction of the defendant in the suit in which said writ was issued, and that the judgment entered in the case was therefore void; and that the writ and levy were also void, for the reason that there can be no valid writ and no valid levy where no jurisdiction over the defendant has been acquired by the court. Second, that if the writ is to he treated as valid and as affording a protection to the officer for the seizure made under its authority, yet, after the levy, the sheriff was guilty of such a gross abuse of his attachment process — because he expelled the plaintiff from the store where the goods were seized, and assumed entire possession and control over the same from October 2oth till January 3d following, and then sold the goods under avoid execution- — th at he became in law a trespasser ah initio, and forfeited any justification which the writ would otherwise furnish him.

As a basis for the first contention, it was shown by the introduction of the entire record of the suit in Marinette County, Wisconsin, that there was a defective return of service upon the summons issued against the defendant in said suit. The return which was made by the defendant, McGillis, as sheriff, stated that the summons was served on the defendant, F. Armstrong, the 28th day of October, 1884, “ by then and there leaving a true copy thereof at his last and usual place of abode, in presence of Chas. Armstrong, his son, a member of his family of suitable age and discretion, to whom I explained the contents thereof.”

The statute of Wisconsin authorizes service of summons, in the manner stated in this return, oniy where the defendant is not found, and the return should show that the defendant was not found, and if such statement is omitted from the return, jurisdiction of the defendant is not shown. Knox v. Miller, 18 Wis. 397; Northrup v. Shepard, 23 Wis. 5-13.

The counsel in this case have devoted much discussion to the question whether the judgment entered on this service was void or voidable, and whether the return was amendable in the court where the judgment was rendered. The rule generally recognized is, that an officer will be permitted, in the discretion of the court, to amend his return according to the facts and in support of the judgment, and such we understand to be the practice in Wisconsin. Rehmstedt v. Briscoe, 55 Wis. 617.

It is contended by appellants that if" the return might he amended in the Circuit Court of Marinette County, then the jurisdictional facts could be shown in the trial of this case by parol and an offer was made to show by McGillis, that at the time of the service and return of the summons, Armstrong could not be found in the county. We are not prepared to give assent to this contention, but do not find it necessary at this time to express any final judgment on the point.

If it he admitted that the court failed to obtain jurisdiction of the defendant, and that no valid judgment was entered in the suit, yet the sheriff would not he thereby deprived of the protection of the attachment writ. The attachment writ hears date October 23, 1884, and the sheriff’s return on it shows that the goods were seized under it October 24th. The return on the summons shows that the service was made on the 2Sth of October. Grant that the service was invalid, or that the return, which was not made till Bovenmer 10th, was not such as to show the jurisdiction of the court to proceed to judgment, how can the failure to obtain jurisdiction have a retrospective effect, and render the writ, which was a legal authority and mandate to the officer, at the time he seized the property in execution of it, impotent as a protection to him when he is sued in trespass for acts done in obedience to its command?

The law is not so. The writ was valid and regular in form and issued from a court having authority to issue it, and it became the duty of the sheriff when it was delivered to him, to levy it on the property of the defendant therein named ■promptly and unhesitatingly, and because he was obliged to obey its mandate the facts on its face must constitute his justification. “As a general rule an officer may justify under a writ regular on its face, whether the court had jurisdiction or not, although the writ be void.” Davis v. Wilson, 65 Ill. 529.

This is not the question whether the officer will be deprived of the protection of his writ when he does acts which make him a trespasser ah initio. That question we will discuss under the second point. The question here is whether the officer must, in order to make out a justification under the writ of attachment, show that proceedings in the cause subsequent to the levy were regular and resulted in a valid judgment.

In an early case in Vermont it was held, where an officer had attached property, but made a return on the writ so defective that the suit was abatable, that the attachment was valid, and the officer could maintain trespass against subsequent attaching creditors who took the goods, and it was further held that even though the officer should be guilty of conduct which might render him a trespasser ah initio, yet his attachment, being originally lawful, would not be affected by his subsequent acts of omission or commission so as to make his levy void. Newton v. Adams, 4 Vt. 437.

In Eaton v. Cooper, 29 Vt. 444, it is said by Redfield, C. J., speaking for the court, that the taking of property by virtue of a writ of attachment may be justified by the officer and creditor’s attorney without showing regular subsequent proceedings in obtaining judgment, taking out execution,” etc.

In Grafton v. Carmichael, 48 Wis. 660, the question now being considered was decided. There the defendant in a trespass suit directed and aided the officer in seizing property-under an attachment writ. The writ was regular and valid in form, but the judgment was invalid by reason of a failure to cause notice to the attachment defendant to be posted or published as required by law. It was insisted that the seizure could not be justified under the writ because the proceedings did not terminate in a valid judgment, but the court held otherwise, saying: “It will be borne in mind that the original taking was under lawful writs, and with this taking the agency of the defendant in the matter ends, unless on account of the defect in the subsequent proceeding, which was not owing to his fault, he is liable to be treated as a trespasser ab initio, and we do not think he can be held liable on that ground, there being no proof of any positive wrong on his part which would tend to show that the original taking, though lawful, was for some other indirect or unjustifiable purpose.” It is argued that this case is to be distinguished in this point from the one just cited, for the reason that the failure to show jurisdiction and a valid judgment in this case is due to the act of the sheriff himself in failing to properly serve the defendant in the suit, or to make a sufficient return of service. But suppose he had utterly failed to make a return of the summons or had entirely failed to servo it. That would, at most, be a nonfeasance, and it is well settled, as stated by Spencer, C. J., in Gates v. Lounsbury, 20 Johns. 427, that, “when an act is lawfully done, it can not be made unlawful, unless by some positive act incompatible with the exercise of the legal right to do the first act.”

We must conclude, therefore, that the attachment writ, offered, as it was, in connection with evidence showing that the plaintiffs in the writ were creditors of the attachment defendant, and with evidence tending to show that the purchase by plaintiff of said goods and chattels seized under the writ was fraudulent and void as to creditors, was proper and competent evidence under McGillis’ pleas of justification, and that it was error for the court to exclude said writ, and the evidence tending to show that plaintiff was a fraudulent purchaser of said goods.

Second. But it is said, McGillis, by turning plaintiff out of the store in which the goods were, and by subsequently selling the goods under a void execution, became a trespasser ab initio, and by his said wrongful acts lost the protection of his writ. The difficulty with this contention of counsel is, that assuming it for the present purpose to be sound, there is no foundation laid for it in the pleadings. As before stated, McGillis’ pleas answered the trespass stated in the declaration, i. e., the wrongful seizure of the goods. The conversion of the goods or their spoliation was mere aggravation. Plaintiff took issue on the plea by the replication, de injuria, but did not new assign.

It is a fundamental rule of pleading stated in all the text hooks on common law pleading and illustrated by numerous decisions, that, where the justification of a trespass is under a writ, warrant, or other process of a court of record, and it is claimed that the party has been guilty of any illegal conduct or undue violence, the plaintiff should reply the facts or new assign, and matter which shows that the defendant by subsequent misconduct became a trespasser ah initio should be specially replied. 1 Chitty on Pl. 16, Am. Ed. 620; Graham Pr. 258. In trespass for breaking and entering the plaintiff’s house and expelling him therefrom, the breaking and entering are the gist of the action and the expulsion is merely aggravation; therefore a justification will cover the whole declaration; and if the plaintiff means to insist on the expulsion, as making the defendant a trespasser ah initio, he must new assign it. Taylor v. Cole, 3 Tenn. 155. See also Gelston v. Hoyt, supra; Shortland v. Govett, 5 Barn. & C. 485; Butman v. Wright, 16 N. H. 219; Stoughton v. Mott, 25 Vt. 668; The Six Carpenters’ Case and notes, Smith’s Lead. Cas. 274.

The plaintiff not having specially declared by way of new assignment for the expulsion or for the sale of the goods, could have no benefit from the proof introduced by him under the counts of his declaration which were answered by the pleas; and, furthermore, the court could not properly rule out the writ of attachment on the ground that the sheriff was a trespasser ah initio, even if the pleadings were in a proper condition to present that question. Whether the officer becomes a trespasser ah initio is a question for the jury to determine upon the evidence under proper instructions from the court.

The verdict is joint against McGillis and King, and as it must be set aside as to McGillis it can not stand as to King.

As the case must go back for a new trial, we will notice the error assigned as to the admission of evidence of the value of the good will of the business.

The bill of sale from Armstrong to appellee did not purport to convey the good will of the business, and there was nothing in the sale of the stock which prevented Armstrong from opening a. store adjacent to the one occupied by appellee, and continuing the business which he had theretofore conducted. Appellee had no interest in the good will, so far as the evidence shows, and there was, therefore, no basis for the assumption that he would make in the future the same profits in conducting the business that Armstrong had made in the past. The value of the goods and fixtures taken was the true measure of damages, and the jury might, if warranted in an action of trespass by the proof made, give exemplary damages to punish a wanton or malicious proceeding. Ho claim for such punitive damages was made in this case, however, but a claim for the value of the good will was made, and the court instructed the jury to find from the evidence the profits of the business to Armstrong during the previous year, and from that and other evidence to ascertain the value of the good will of the business, and to allow such value as damages in addition to the value of the goods. This was error. Kussell v. Jzevor, 2 Til. App. 243. The value of the good will was not involved, and •where the property is taken under a claim of right, the real dispute being as to the title, and the trespass is not accompanied by any circumstances of aggravation sufficient to justify exemplary damages, the law applies in all cases the same uniform measure of relief for property taken, to wit, the value of the property at the time of the conversion and interest thereon. Oviatt v. Pond, 29 Conn. 479; 3 Sutherland on Dam. 472.

For the errors indicated the judgment must be reversed and the cause remanded.

Reversed and remanded.


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    F. M. Atkinson v. Frank Foster.

      Creditor's Bill — Beciicer—Proxy to Vote Stock — Poirer of Court to Order Execution of.

    Where a receiver has been appointed in proceedings on a creditor’s bill, and the property assigned includes stock of a corporation, the court may oí der the defendant to execute a proxy or power of attorney enabling the receiver to vote the stock at meetings of the stockholders of the corporation.
    [Opinion filed July 3, 1888.]
    Appeal from tho Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Appellee recovered a judgment against the appellant, and, after the return of an execution no property found, a creditor’s bill was filed against appellant, and such proceedings were had that a receiver was appointed and appellant ordered to execute an assignment to said receiver of his property. The receiver afterward, on the 31st day of August, 1887, filed his petition in the court, in which it was alleged that the petitioner was a ppointed receiver and that said Atkinson executed an assignment of his property in the usual form, and was at that time the owner of 450 shares of the capital stock of the Chicago Tyre and Spring Works, which then and now stands in the name of Atkinson upon the books of the company; that at the time of the appointment Atkinson was entitled to vote upon said 450 shares at all the meetings of the stockholders of the company; that petitioner as such receiver is advised that by such appointment as between him and Atkinson, he succeeded to all the rights of Atkinson in or concerning said stock, including the right to vote thereon at such meetings; that bj’ the by-laws of the company no transfer is recognized by the company until made upon the hooks of the company by the surrender of the certificate to the assignee; that the certificates of said 450 shares, or any part thereof, have not been surrendered, nor have any new certificates been issued therefor to petitioner as assignee. That by reason thereof the receiver’s right to vote upon said stock at the meetings of the stockholders will not he recognized by the officers or stockholders; that the regular annual meeting of the stockholders has been called to convene September 5, 1887; that the petitioner will not be in a position to vote upon said stock unless the same be properly transferred to him upon the books of the company, or unless Atkinson shall execute to him as such receiver a proxy authorizing him to vote this stock; that he believes it to be important to the value of the stock and the interest of the estate committed to his charge that he should attend this meeting and be able to vote thereat upon this stock; that the affairs of the company by dissensions among its stockholders have become very much disordered; that there are now two rival boards of directors, each claiming to have authority, to act as such; that said disorders and dissensions have resulted in the appointment by this court of a receiver of the affairs and assets of the company, af the instance of its creditors, and it has been brought to the verge of insolvency, and unless some action is taken toward electing an undisputed set of officers and directors and taking the assets from the hands of the receiver, the petitioner believes the stock will become worthless; that Atkinson, since the appointment of the receiver of the company, seems to be indifferent if not hostile to its interests; that petitioner is informed that Atkinson, shortly after the appointment of the receiver, started and is now president of another corporation known as the Atkinson Car Spring Works; that since the organization of the new company Atkinson has been .working against the old, as will more fully appear from circulars which petitioner is informed and believes Atkinson caused to be printed and sent to the customers of the spring works; and petitioner believes that if defendant Atkinson were to vote said stock he would so act therein as to continue rather than remove the obstacles which have disordered the affairs of the spring works; that petitioner is informed and believes that Atkinson is president of the spring works, and either Charles H. Ferry or Eli Smith is secretary and treasurer thereof; that by the by-laws the company’s certificates issued for stock must be signed by the president and secretary and treasurer; that Atkinson placed the stock certificates book in the possession of his attorney, Allan C. Story.
    Petitioner prays that Atkinson, as president, and Smith or Ferry, as secretary and treasurer of the spring works, be directed to issue to petitioner new certificates for 450 shares of the stock upon the surrender of the present certificates, and for that purpose that Atkinson and Story give access to the transfer certificate book, or that Atkinson execute and deliver to petitioner, within a short time to be fixed, a proxy authorizing petitioner to vote upon the 450 shares of stock at the meeting of the stockholders and any adjournment thereof, or at meetings that may be held of the stockholders, until the further order of the court, and that Atkinson be restrained from interfering with petitioner in so voting said stock under said proxy, or from voting or attempting, either by himself or his agents, etc., to vote thereon.
    The petition was verified by the oath of the receiver, and had attached to it, as the exhibits referred to, copies of certain circulars. Atkinson filed his answer to the petition, in which lie claimed that the note on which the judgment was taken against him as the basis of the creditor’s bill, had been paid, as set forth in his answer to the creditor’s bill, and he made said answer part of his answer to the petitioner.
    The receiver supported the allegations of his petition by proof, and the court entered the following order:
    “This cause coining on to be heard upon the petition of E. A. Filkins, the receiver in above entitled cause, filed herein on the 31st day of August A. D. 1887, asking for a transfer or proxy to vote upon certain stock therein mentioned and described, and upon the answer of the defendant, F. M. Atkinson, thereto, and upon due notice to Allan 0. Story, the court having heard the counsel for the respective parties, and being fully advised in the premises, it is ordered that said defendant, F. M. Atkinson, do, before 10 o’clock a. m. on Friday, the 2d day of September, A. D. 1887, execute and deliver to E. A. Filkins, the receiver, a certain proxy or power of attorney in the following form, as near as may bo:
    “Know all men by these presents, that I, Frederick M. Atkinson, of the city of Chicago, county of Cook, and State of Illinois, do hereby appoint Edward A. Filkins, of said county and State of Illinois, to be my substitute and proxy for me and in my name and behalf, to vote at any election of the stockholders of the Chicago Tyre and Spring Works, a joint stock company, and at any meeting of the stockholders of said company, as fully as I might or could, were I personally present.
    “ In witness thereof, I have hereunto set my hand and seal the--day of September A. D. 1887.
    . “ Authorizing said Filkins as such receiver to vote in the name, place and stead of said Atkinson upon the 450 shares of stock of the Chicago Tyre and Spring Works mentioned in said petition and represented by certificates of stock issued by said Chicago Tyre ahd Spring Works to said E. JML Atkinson, and numbered 18, 19, 5, 6, 7, respectively, at the annual meeting of the stockholders of said company to be held on the 5th day of September A. D. 1887, and any adjournment thereof, and all other meetings of said stockholders, until the further order of this court, and that said Atkinson, his agents and attorneys, do refrain from interfering with said Filkins in his voting upon said stock under said proxy or power of attorney, and from voting or attempting, either by himself or by his agents, to vote upon said 450 shares of stock at said meeting, or any of them.
    “ It is further ordered that said defendant, F M. Atkinson, do within five days execute upon the back of said certificates an assignment thereof in due form to said Filkins as such receiver, and that said Filkins do as soon as practicable thereafter cause said certificates to be surrendered to said Chicago Tyre and Spring Works, and new certificates issued to him as such receiver, in lieu of such certificates so surrendered, and that said defendant, the Chicago Tyre and Spring Works, by its proper officers, do upon demand of said Filkins execute and issue to him such new certificates.

      “ And it is further ordered that Allan 0. Story do allow the proper officers of said Chicago Tyre and Spring Works access to the stock certificate book of said company for the purpose of issuing such new certificates.”
    This appeal is prosecuted to reverse that order.
    Messrs. G. W. & J. T. Krbtzingee, for appellant.
    Messrs. Cook & Upton, and Trumbull, Dobbins & Trumbull, for appellee.
   Moran, P. J.

The order appealed from is interlocutory, but is reviewable under section 1 of “ An act to provide for appeals from interlocutory orders and granting injunctions or appointing receivers,” in force July 1, 1887.

The question made is as to the power of the court to compel appellant to execute to the receiver a power of attorney enabling him to vote the stock in such manner as should seem to him to be for the best advantage to the property. A receiver appointed on a creditor’s bill does not merely take property and hold it for the benefit of the party finally successful, as is the case where the dispute is over the title to the property.

The receiver in a creditor’s suit is appointed to take the property of the judgment debtor and dispose of it and apply the proceeds in satisfaction of the judgment under the direction of the court, and, as is said in Beach on Deceivers, See. 639, “it is a well established rule of law that, as to all the property and rights of property of the judgment debtor and as to all lawful transactions with his property, the receiver stands only in the place of the judgment debtor.”

Where, from the peculiar nature of the property coming to the hands of the receiver, some further conveyance than the usual assignment from the debtor to the receiver is necessary to vest in the receiver the complete legal title and enable him to dispose of the property to advantage, and to protect it while he holds it, the court 62! necessitate must have the power to compel the judgment debtor to execute such further conveyance.

From the allegations of the petition it appears that an exigency liad arisen, in which, without the proxy to vote the stock, the receiver would be unable to protect it against the efforts of the judgment debtor himself to render it worthless.

We think that under such circumstances the court had the power to require the judgment debtor to execute any instrument, which was necessary for the protection of the res. It was just and proper that the stock should be so used as that its value should not be diminished or destroyed, and it is well known that officers of a corporation who desire to accomplish that end can soon wreck a corporation, and render stock in it of no value. The receiver was the one to protect the stock by voting it at the election, and it was proper to clothe him with the legal means of doing so. The power of the court to compel the execution of a proxy or power of attorney to vote stock, has been exercised, and rests on the same foundation as its power to compel the execution of any other instrument. In Vowell v. Thompson, 3 Cranch, C. C. 428, a bill was filed to compel the mortgagee to give to the mortgagor a power of attorney to vote .on certain stock at an election of directors of the corporation, and the court granted the relief.

We are of the opinion that the court had full power to enter the order appealed from, and that, under the circumstances,it was discreetly and providently exercised.

The order will therefore be affirmed.

Order affirmed.

Gabnett, J., took no part in the determination of this case in this court.


author: McAllister, J.

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    Arthur W. Windett v. The Connecticut Mutual Life Insurance Company et al.

      Mortgages — Forecl sure — Bill in Nature of Bill of Review — Jurisdiction — Former Adjudication — Absohite Conveyance as Mortgage — Parol Agreement — Evidence.

      1. An original bill in the nature of a bill of review, as well as a bill of review proper, must be brought in the court in which the decree sought to he reviewed was rendered.
    2. A former adjudication by a court of competent jurisdiction is not only final as to the matter actually determined, but as to every other matter which the parties were bound to litigate and bring to a decision as an incident to, or essentially connected with, the subject-matter in litigation.
    3. Where the mortgagor has permitted a decree pro eonfesso in the United States Circuit Court, upon a bill to foreclose a mortgage, filed in violation of an agreement to extend the time of payment, he can not maintain, in a State court, an original bill in the nature of a bill of review to redeem from the sale under such foreclosure.
    4. In the case presented it is held: That a strong presumption arises that the former relation between the parties of mortgagor and mortgagee was terminated by the foreclosure proceedings; that the testimony to overcome such presumption must be strong, positive and convincing; and that the evidence does not sustain the contention of the complainant that such arrangement was continued by parol agreement made pending such proceedings.
    [Opinion filed July 3, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding,
    Messrs. W. C. G-oudy and John Woodbridge, for appellant.
    Messrs. Isham, Lincoln & Beale, for-appellees.
   McAllister, J.

In March, 1879, Windett being indebted to the Connecticut Mutual Life Insurance Company in the sum of 894,500 as principal, besides accrued interest, for moneys theretofore loaned to him by said company and which had been secured by mortgages given by him to said company, upon different parcels of real estate situate in and about the city of Chicago, as to which he had made default in payment, the said company, for the purpose of foreclosing said mortgages, brought two suits in equity in the United States Circuit Court for the Northern District of Illinois against him, in each of which there was due personal service of process. The first of said suits was begun March 15, 1879, and a decree jpro eonfesso was entered November 23, 1880, with reference to a master to ascertain the amount due, and July 16, 1881, the usual decree finding the amount due and for sale and foreclosure was entered. November 17, 1881, the master’s sale under the decree was made, said company being the purchaser. And, no redemption having been attempted, February 20, 1883, the master’s deed of the premises so sold- was issued to said company as the purchaser. In the other case suit was brought March 17, 1879, in which a decree fro confesso and of reference was entered ¡November 23, 1880, followed by decree finding the amount due and for sale and foreclosure entered June 22, 1881. Under that decree the master’s sale was made September 23, 1881, and there having been no attempt to redeem, the master’s deed was issued January 30, 1883, to said company, the purchaser at such sale. All of which proceedings were followed by the order of the court confirming the same.

June 17, 1885, Windett filed Ms bill in the Cook County Circuit Court against the said company, in this present suit to redeem, which appears to be framed in two aspects: First, in the aspect of an original bill in the nature of a bill of review, for the purpose of setting aside the decrees of the Federal court so far as they affect his right of redemption, on the ground that while such suits were pending, he entered into an agreement with said company to extend the time of payment of the whole indebtedness as respects principal, for five years, and to reduce the interest from the rate of nine per cent, per annum, as provided for in the mortgage, to six per cent, only, such reduction to take effect from January 1, 1S78 ; that said company, in bad faith and in violation of said agreement, caused said decz-ees to be entered before the expiration of said five years and fc>r the original, instead of the reduced rate of intez-est. Secondly, in addition to such agreement for extension of time of payznent and reduction of iziterest, there was an agreement made between the parties pending said suits in the Federal court, to the effect that the defendant therein should have the right to redeezn the mortgaged premises irrespective of what was done by the plaintiff in said suits, by paying the amount actually due; and that by the assurances, promises and representations made by the officers and agents of said company to him, said Windett, that he should have such right, he had been induced to, and did rely upon the same and was thereby prevented from appearing in said cases to protect his rights or redeem said property within the time allowed by law for so doing, wherefore said company was now estopped from denying such right of redemption.

At the hearing upon pleadings and proofs the hill was dismissed on the grounds that if there had been, in fact, such an agreement to extend the time of payment of the whole principal debt for the period of live years, and to reduce the rate of interest from mine to six per cent, as was alleged, Windett should have availed himself of whatever rights he had ¡under that agreement by coming into the cases in the United States court, at some proper time, and presenting the same to that court for its consideration, and, not having done so, he is precluded from assailing those decrees in this collateral way, because they are conclusive upon him as to all said matters. That so far as his alleged right of redemption is based upon agreement between him and the company, or said several ¡matters of estoppel, the proof was too unsatisfactory to overcome the presumption arising from the decrees of the Federal court, and the sales and deeds thereunder. From that decree of dismissal Windett has appealed to this court.

In one respect, the hill in this case partakes of the character of an original bill, in the nature of a hill of review. The decrees sought to be reviewed were rendered by the Federal Circuit Court, and this bill is in the Circuit Court of the State. The inflexible rule is that both a bill of review proper and an original bill in the nature of a hill of review must be brought in the same court in which the decree sought to be reviewed was rendered. Griggs v. Gear, 3 Gilm. 10.

The court below had no authority or jurisdiction to review the decrees of the Federal Circuit Court. Wetherbee v. Fitch, 117 Ill. 67. The adjudication in the Federal Circuit Court was not only final and conclusive as to the matter actually determined, but as to every other matter which the parties were bound to litigate and bring to a decision as an incident to, or essentially connected with the subject-matter of litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and defense. Ashuelot R. R. Co. v. Cheshire R. R. Co., 59 N. H. 409, citing Clemens v. Clemens, 37 N. Y. 59-74; Malloney v. Horan, 49 N. Y. 111-116; Cromwell v. County of Sac, 94 U. S. 351; Case v. Beauregard, 101 U. S. 688; King v. Chase, 15 N. H. 9-15, and other authorities. .

Mr. Windett claims that the contract to extend the time of payment for the period of five years, and reduce the interest from the rate of nine to six per cent., was entered into between him and said company March 18, 1879, and subsequently. It was even before his time expired for answering the bills in the Federal Circuit Court. Mow, if such an agreement was in fact made, and it was valid and operative, it would control as to the question of condition broken, as respects the mortgages and the right of foreclosure, and bear directly upon the question of the amount due. Those were matters necessarily involved in those suits. He filed no answer; and when the decrees were pntered, which he alleges were acts by the company in violation of said agreement and in bad faith, he became immediately cognizant of wliat had been done, but made no application to the court, at any time, to be relieved touching such acts. Such an application was his only proper remedy (Brown v. Frost, 10 Paige, 243), and not having resorted to it, the decrees in question are conclusive upon him as to that matter.

But it is contended that this ease comes within the doctrine of equity allowing an absolute conveyance to be turned into a mortgage by parol evidence, and Mr. Windett claims that while the foreclosure suits were pending there was an oral agreement made between him as mortgagor and the said company as mortgagee, in substance and effect that the foreclosure proceedings should not operate as such, hut that the relations between them should continue, notwithstanding such proceedings, to be that of mortgagor and mortgagee, and that he should have the right to redeem after the time for redemption allowed by law had expired, and that he relied and acted upon that agreement. That question is the only remaining one in the case.

In considering that question under the head of equity, to which it belongs, what are to be regarded as governing rules? It is indisputable that from the decrees of foreclosure, the sales thereunder and deeds to the company as purchaser, a strong presumption arises that the former relation between the parties of mortgagor and mortgagee had been thereby terminated and that the said company had become the absolute owner of the property in accordance with the terms of the said deeds. It is a further rule applicable to such case that the burden rested upon Mr. Windett to overcome that presumption; that in order to overcome that strong presumption the testimony must be clear, positive and convincing beyond reasonable controversy. And some cases hold that the unsupported testimony of the party in interest is not sufficient to support a decree. Howland v. Blake, 97 U. S. 626; Kent v. Lasley, 24 Wis. 654; McClellan v. Sanford, 26 Wis. 595; Oswald v. Sproehnle, 16 Ill. App. 368, and cases cited.

The testimony in the ease is very voluminous and conflicting. We can not undertake to state and discuss it and it would be a fruitless task if we did. But, after examining and duly considering all the evidence in the case, we are forced to the conclusion that it falls far short of being of that clear and convincing character which the law requires in such a case. The witness, whose testimony tends to prove the alleged oral agreement, was Mr. Windett himself. He claims, and which is probably true, that while his entire indebtedness under the mortgages amounted to only about $100,000, yet the property in question was worth $300,000, and was continually appreciating in value. His interest in the result was, therefore, very great. We can find in the record no substantial corroboration of his testimony as respects such oral agreement, either by way of facts and circumstances or direct evidence; hut do find that he is flatly contradicted as to nearly every statement tending to prove such agreement, by witnesses equally credible with himself. And besides, the case shows many deliberate acts on his part, done from time to time during the whole transactions in question, which are utterly inconsistent with the theory of the concurrent existence of such an oral agreement.

It would have been far more agreeable to our humane instincts if we could have found in this record such a case, so supported by evidence, as that, under established rules of law, Mr. Windett would have been entitled to the relief prayed; for we regard the case as one of great hardship so far as he is concerned, and the result of misfortunes for which he is in no wise responsible. But for the reasons stated the decree must be affirmed.

Decree affirmed.


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    J. Young Scammon v. The Commercial Union Assurance Company.

      Insurance — Mistake of Law — •Estoppel—Practice.
    In an action involving the right of the plaintiff to recover on a policy of fire insurance, the Supreme Court having reversed the judgment on the ground that this court had failed to certify whether a subsequent policy was issued in lieu of the policy in question, it is held: That said subsequent policy was not so issued; that the defendant issued said policy and paid the loss thereunder to a third person claiming under a fraudulent sale under a mistake of law; and that a decree settling the rights of the plaintiff and such third person, furnishes no element of estoppel that can be invoked by the defendant in this action.
    [Opinion filed July 3, 1888.]
    Appeal from the Circuit Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Charles F. White and Martin L. Wheeler, for appellant.

      Messrs. Miller, Lewis & Judsoh, for appellee.
   Moran, P. J.

This case was heard by this court at the October term, 18S6, and an opinion filed covering all the questions in the case to which the attention of the court was at that time called, which opinion is reported in 20 111. App. 500. After the opinion was filed the remanding order was stricken out, and a finding of facts was made, and final judgment was entered in favor of said Scammon in this court, in order that the questions of law involved might be passed on by the Supreme Court. The case was taken to the Supreme Court by appeal and the judgment of this court was at first affirmed, but on a re-hearing the judgment was reversed, on the ground that this court had failed to certify the facts as to one of the issues contested on the trial in the Circuit Court.

That issue as stated by the Supreme Court is as follows: “ Whether a policy of insurance upon the same property and for the same amount, issued by the defendant to one Babcock, subsequent to the issuing of the policy upon which this suit is brought, and the loss upon which was fully paid before this suit was brought, was issued in lieu of the policy upon which this suit is brought, with the consent of Scammon.” We have carefully examined the record upon the question thus presented and considered the suggestion of counsel thereon, and while we find it true that a policy of insurance was issued upon the same property and for the same amount to ono Babcock subsequent to the issuing of the policy on which this suit is brought, and that the loss thereon was paid before this suit was brought, yet said policy was not issued in lien of, or as a substitute for the one on which this suit is brought. Scammon was never consulted, and never consented that a policy should be issued to any person for his benefit or otherwise, to stand in lieu of or to be substituted for the policy on which he is now claiming.

The company issued the policy and paid the loss thereunder to Babcock, acting on a legal opinion, in which Babcock and the agent of the company concurred, that Babcock had title to the pro} erty, and that Scammon had by the sale under the mortgage lost all title and interest therein, and the policy of insurance which Scammon held was therefore not enforcible against the company. Scammon never assented to this view, but at all times asserted to the company his ownership of the property, and his claim to the insurance on his policy. The company paid the Babcock policy with full knowledge of the facts, and the only mistake it fell into was one of law.

It is true the chancery court mulcted Babcock in the amount of insurance which he had obtained while clothed, by reason of the fraudulent sale, with the apparent title, but we fail to perceive in that circumstance a ground of defense to this suit. Such fact furnishes no element of estoppel that can be invoked by the insurance company as against Scammon in this action. The terms which the chancery court saw fit to impose on Babcock, can furnish no ground either of defense or recovery in this action of law.

We stand upon the opinion heretofore filed and above referred to on the other questions in the case, and are of the opinion that there is nothing in this additional point which should defeat Scammon’s claim on the policy in suit.

The judgment of the Circuit Court will therefore be reversed and a judgment will be entered in this court for the amount due upon said policy.

Judgment reversed.


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    Julius Willer v. Charles S. French.

      Forcible Entry and Detainer — Juried!,Dion^-Confession of Judgment upon Warrant of Attorney in Lease, Unauthorized.

    1. The action of forcible entry and detainer is a special statutory proceeding, summary in its nature and in derogation of the common law. The statute conferring jurisdiction must, therefore, be strictly pursued in the method of procedure prescribed by the statute.
    2. The Circuit and Superior Courts, in taking cognizance of cases under the statute of forcible entry and detainer, exercise a special, statutory and extraordinary power, and stand upon the same ground and are governed by the same rules as courts of limited and inferior jurisdiction. In such cases nothing is within the jurisdiction but that which expressly so appears upon the face of their proceedings.
    3. The entry of a judgment by confession upon warrant of attorney contained in a lease is impliedly prohibited by the particular mode of proceeding prescribed by the forcible entry and detainer act.
    4. The practice of entering judgment by confession upon warrant of attorney without process in actions of tort did not obtain at common law.
    [Opinion filed July 3, 1888.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    A judgment in forcible entry and detainer against appellant and in favor of appellee was entered in the Superior Court by confession and without the issuing or serving of process. The lease (a copy of which is attached to the pleadings in the case) contains a clause by which the lessee appoints any attorney of a court of record “to be his attorney for him and in his name and stead, to appear in and before any court of record, at any time after any default or failure made by the party of the second part in the performance of any of the covenants of this lease, to waive the issuing and service of process, and to file a cognovit and confession of judgment for the possession of the whole of said demised premises, and for the costs of suit in an action of forcible entry and detainer in favor of said first party, its successors and assigns, and against said second party, his heirs, executors, administrators and assigns, and to file a waiver and release, in writing, of all errors in entering such action or judgment, and a consent in writing that a writ of restitution may be issued and executed immediately,” etc.
    A motion was made to set aside the judgment by appellant, who entered a special appearance for the purpose of making said motion. The motion was denied by the court, and an appeal taken and error assigned.
    Messrs. Moses & Hewman, for appellant.

      Messrs. Williams & Thompson, for appellee.
    A warrant of attorney to confess judgment does not depend for its validity upon positive enatitment of the Legislature, but is a -valid power, whose exercise has been recognized repeatedly by the common law, independent of any statute.
    In the Supreme Court of this State, Sheldon, J"., says:
    “ A warrant of attorney to confess judgment is a familiar common law security. The entry of judgment by cognovit thereunder is a proceeding according to the course of the common law which courts have ever entertained in the ordinary exercise of their authority as courts of general jurisdiction. The fact that the statute has regulated the mode of procedure does not convert the proceeding into one of such a special statutory character that the same presumptions do not obtain as in the ordinary judgments of superior courts of general jurisdiction. The point was directly so ruled in Osgood v. Blackmore, 59 Ill. 261.” Bush v. Hanson, 70 Ill. 480, 483.
    The He vised Statutes of 1845, Chapter 78, Section 27, provide for confession of judgment for a debt bona fide due, but say nothing about confession on a note before its maturity. It was held, however, by the Supreme Court in 1850, that judgment might be confessed on a note not due by its terms, the power which was exercised purporting to authorize such confession. The court say: “We see no good objection to the enforcement of such a contract.” “ The defendant has no right to complain of the judgment, for he authorized it to be entered.” Here is a case of the exercise of power to confess judgment, while an affirmative statute authorizing confessions was in existence, but where the exercise, upheld by Supremo Court, was not in accordance with provisions of such statute. Sherman v. Baddely, 11 Ill. 622.
    The exact case at bar ca ne up before Judge Blodgett in the UnitedStates Circuit Coin-;. Conn. Mut. Life Ins. Co. v. Sea. The attorneys for the tenant, defendant, objected to the entry of judgment under a warrant of attorney precisely similar to the present, as being illegal and unconstitutional. Judge Blodgett said that if the defense could show him any authority or reason why the judgment should not be entered he was willing to give them a reasonable time, The question was afterward argued and Judge Blodgett adhered to his view that judgment might be entered, and this was accordingly done. Judge Drummond took the same position.
    As to general doctrine, that whatever may be done in gorop>ria persona may be done in court by an attorney, see Hall v. Hamilton, 74 Ill. 437.
    When the regularity of sale on execution was questioned subsequently to sale, on ground that confession on which execution issued was unsupported by affidavit, Ogden, J., says:
    “ The Court of Common Pleas, by its common law powers, had jurisdiction over the person of the defendant, and over the subject-matter of the "judgment, independent of the provisions of the statute, which directs that an affidavit shall be produced at the time a judgment by confession is signed.”
    Refused to avoid judgment and sale resting on warrant. Doe ex dem. Vandeveere v. Gaston, 42 N. J. L. 820. See, also, Ely v. Parkhurst, 25 N. J. L. 188; Doe ex dem. Rees v. Hawell, 12 Ad. & E. 696; Locke v. Franklin, 7 Taunt. 9; Secrist v. Zimmerman, 55 Pa. St. 446.
    “The amicable action and confession of judgment is according to ancient and established practice existing before the act of 1806, as well as since.” Judgment in ejectment by confession, sustained. Flanigen v. City of Philadelphia, 51 Pa. St. 491. See, also, Durham v. Brown, 24 Ill. 93.
    The objection that the action of ejectment rests on a tort lias not been allowed to prevail in any of the numerous cases cited, and none can be found where such objection has prevailed. The true solution of the difficulty lies in the fact that, while the actions of both forcible entry and detainer and of ejectment present some suggestions of having been founded in tort, yet they are really both sui generis. It is misleading to call them actions in contract or in tort, for they are neither. Forcible entry and detainer resembles ejectment most closely in its processes and results, and the lines already developed in ejectment are those which should be followed in the action of forcible entry and detainer.
    In the present case the record shows that the relation of landlord and tenant existed; that the lease expired, and that the tenant persisted in holding the premises after a demand made in writing by the proper person for the possession thereof. This was sufficient to give the court jurisdiction. Dunne v. Trustees of Schools, 39 Ill. 578; Smith v. Killeck, 5 Gilm. 293.
    This court, therefore, must find in the present case, that the facts necessary to give the lower court jurisdiction existed-The whole of the appellant’s case, consequently, comes to this: Ho summons in forcible entry and detainer was issued to, or served on the (then) defendant Wilier, and the statute of forcible entry and detainer is said to provide for the issue and service of summons. The Practice Act, section 1, requires that in all actions the first process shall be a summons. Will it be said, on the strength of this provision, that no judgment may be entered in any cause where summons has not issued ? In this case what becomes of the constant practice of waiving the issue and service of process, as defendants so constantly do, by warrant of attorney or otherwise, and consenting that judgment be entered up?
    Errors, .if any, are released in power contained in lease; and in such case the Appellate Court will affirm without examination. Frear v. Com. Nat. Bank, 73 Ill. 473; Hall v. Hamilton, 74 Ill. 437.
   Moran, P. J.

The complaint filed in the court below contained allegations sufficient to entitle appellee to the remedy sought under the forcible entry and detainer act. In this respect this case differs from the case of Burns v. Nash, decided by this court and reported in 23 Ill. App. 552. The sole question for us to determine on this record is whether the Superior Court obtained jurisdiction of the person of appellant by means of the filing óf the cognovit in pursuance of the warrant of attorney contained in the lease.

It is contended by counsel for aq>pellee that a warrant of attorney to confess judgment is a familiar common law security, and cases are cited which it is asserted show that it was the practice at common law to enter judgments in ejectment upon confession under a warrant of attorney, and that the practice has also obtained in Pennsylvania and been sustained by the Supreme Court of that State. There is some misapprehension as to the practice at common law. There were at common law, besides the judgment by default, two methods of obtaining judgment without trial. One by a confession of judgment under a warrant of attorney, and the other upon a cognovit actionem signed by the defendant in the action.

The warrant of attorney authorized the attorney named therein to appear for the defendant and receive a declaration in an action for debt, and to confess the action or suffer judgment by nil (licit or otherwise to pass. “A warrant of attorney,” says Chi tty, g£is more frequently given independently of any action, and very generally as prospective security, and although, at the time it is executed, nothing is due from the party. It is in that respect a convenient collateral security to bankers and others, in consideration of their agreeing to make pecuniary advances, or to suffer a customer to overdraw his account.” 3 Chitty’s Gen. Prac. 669.

The cognovit actionem was not an authority given before the action commenced, but was a confession signed by the defendant after the process was issued.

u When a writ has already been issued against a defendant, a cognovit actionem, or, in other words, a written confession of the action subscribed by the defendant but not sealed, and authorizing the plaintiff to sign judgment and issue execution for a named sum, is a very usual mode of saving the expenses of further proceedings in the action.’’ 3 Chitty’s Gen. Prac. 664. How, two at least of the eases cited by counsel to show that confession of judgment was permitted in ejectment, are cases in which the judgments were entered'on a cognovit actionem.

In Doe dem. Locke v. Franklin, 7 Taunt. 9, the plaintiff obtained from the defendants in possession a cognovit of the action, and a retraxit of the plea, so that not only -was" there no warrant of attorney to appear and confess, but the defendants who did confess the action were already in court, by service of process, and also by plea filed. Doe dem. Rees v. Howell, 12 Adol. & E. 696, was also a case where the defendant signed a cognovit confessing the action. These cases give no support to the contention that a warrant of attorney to appear and confess judgment was a recognized mode of procedure in ejectment at common law.

Kingston v. Kingston, 1 Dow, N. S. 263, appears to have been a rule nisi to set aside a judgment entered upon a warrant of attorney in an action of ejectment, for the reason that there was no attestation clause to the warrant of attorney in conformity with a statute then recently enacted. Patteson, J., held that the statute had no application to actions in ejectment, and in that was clearly wrong, as the same statute was .held applicable to actions of ejectment in Doe dem. Rees v. Howell, supra, where the question was decided by four of the judges of the Court of King’s Bench.

The point as to the right to enter the judgment under a warrant of attorney was not raised in the case, but the implication that it was a recognized practice, which might be drawn from the fact that the point was not made, is negatived in the subsequent case of Beaumont v. Beaumont, 2 Dow N. S. 972, where, in moving for leave to enter up a judgment on a warrant of attorney authorizing the landlord to sign judgment in ejectment, upon the determination of the tenancy by a notice to quit, counsel admitted that no case of a similar description was to.be found in the boobs, but contended there could be no objection to such a warrant of attorney. Coleridge, J., said : “If a party enters into such an agreement, I see no reason why it should not be enforced;” but for lack of a sufficient affidavit no judgment was entered in the case, and therefore it is no precedent, but it shows that as late as 1843 no such practice had obtained in England.

The fact that no reference to such a method of proceeding in ejectment is found in works on common law practice (so far as we have been able to examine), goes to show pretty conclusively that such a practice was unknown to the courts and to the profession.

It appears from cases in Pennsylvania that there is known in that State a practice of entering what, are termed amicable actions, and that such actions and judgments by confession in them may be entered by the court on agreement by the parties. McCalmont v. Peters. 13 Serg. & R. 196; Cook v. Gilbert, 8 Serg. & R. 567.

In Flanigen v. The City of Philadelphia, 51 Pa. St. 491, the lease provided that it might be terminated on the violation of any covenant by a notice of five days, and that on such termination any attorney might sign an agreement for entering an amicable action in ejectment against the lessee. Such an action was entered and judgment confessed, and on motion to set it aside on the ground that it was not entered in compliance with a rule of court governing the entry of judgment on warrants of attorney, the court said: “It nowhere appears in this record that the confession by the attorney of the defendant was in pursuance of a warrant of attorney. The amicable action and confession of judgment is according to ancient and established practice, existing before the act of 1806, as well as since.”

The practice seems to be peculiar to the State of Pennsylvania; at least., our attention has not been called to a similar practice elsewhere. We do not think it can be regarded as establishing the proposition that the practice of confessing judgment upon warrant of attorney and without process having issued obtained at common law in actions of ejectment.

In Secrist v. Zimmerman, 55 Pa. St. 446, cited by counsel, there was no warrant of attorney and no question of a confession on a warrant of attorney made or decided in the case. The action of ejectment was brought against the defendant for the land, and a year after its commencement the defendant confessed judgment to the plaintiff for the land in dispute and costs. The court held the judgment conclusive as to the parties and their privies, on the ground that the most important interests, not only of property and liberty but life itself, are habitually concluded, judicially, by solemn confession made by the party in interest in the face of a court of justice.

The confession of which the court is speaking in that case was made in open court in the face of the court after service of process, and it has never been doubted that such a confession would authorize the judgment, and probably no one would say that such a confession would not be good in a forcible detainer case.

An examination of all the cases counsel have been able to find seems to us to confirm what was said by this court in Burns v. Nash, supra: “ That the practice of entering judgment by confession upon warrant of attorney without process in actions of tort did not obtain, and there is no precedent for it, at common law.”

The practice of entering judgments in debt on warrants of attorney is very old, so old that the date of its origin is unknown. Chitty says: “How or when this peculiar security for a debt authorizing a creditor, as it were, persaUum^ to sign a judgment and issue execution, without even issuing a writ, was first invented, does not appear, but it has now become one of the most usual collateral securities on loans of money, or contracts to pay an annuity and for debts, but usually accompanied with some other deed or security.” 2 Gen. Practice, 334.

It was early found that unconscionable advantage was taken of debtors by creditors by means of such warrants of attorney obtained when the debt was incurred, and when the debtor was hopeful, and executed with harshness against him in the hour of his distress, and the courts were compelled to prescribe rules and the Parliament to enact statutes to limit the operation of such warrants and restrain the injustice to which the use of them frequently gave rise. Bnt if it were established that confession of judgment upon warrant of attorney obtained as a practice at common law in an action of ejectment, or in other actions in form of tort, it would not authorize the practice in an action of forcible entry and detainer under the law of this State. This action is a special statutory proceeding, summary in its nature and in derogation of the common law, and it is a rule of universal application in such actions that the statute conferring the jurisdiction must be strictly pursued in the method of procedure prescribed by it or the jurisdiction will fail to attach, and the proceeding be coram non judice and void. Davis v. Davis, 115 Pa. St. 261; Burns v. Nash, supra, and cases there cited.

While forcible entry and detainer is a civil proceeding for restitution, it is based upon, and has by modern legislation been evolved from the English forcible entry and detainer which was a criminal proceeding merely. Ejectment, from its slow progress, was an inadequate remedy to a landlord, and the Legislature provided the summary remedy by which a speedy recovery of possession may be secured, but to prevent hasty action, and to secure tenants and their families from the danger and inconvenience of being forcibly ejected without notice and reasonable time for preparation, certain safeguards were provided by the statute.

A demand for possession is required to be made upon the tenant before the commencement of the action; a complaint in writing must be filed before summons issues; service of the summons is to be made in a manner different from the service in other actions at law, and if judgment is rendered against the tenant, the statute provides that “no writ of restitution shall be issued in any case until the expiration of five days.” There is in the statute a policy discernible, as was said by Mr. Justice McAllister in Burns v. Mash, “based upon humane considerations of oppression and hardships which might issue; if families, in any kind of weather, at anytime of day or night, be forcibly ejected from their homes with all their effects, without notice or warning,” which forbids the conclusion that a landlord, by exacting from his tenant a power of attorney in his lease, can obtain the right to an immediate judgment without having demanded possession, or having process issued or served, and to an immediate writ of restitution, and to avail himself of the remedy against his tenant furnished by a statute, every provision of which with reference to procedure he has set aside by contract, and thus to proceed to the ejection of the occupants and the recovery of possession “by leaps,” as the creditor was enabled by a similar warrant to sign judgment and issue execution against his debtor at common, law, without affording an opportunity to the tenant of raising any objection or making any defense'. What wrong might be perpetrated were such a practice to be established is illustrated by the operation of the “amicable ejectment” proceeding in Pennsylvania, as shown in Grossman’s Appeal, 102 Pa. St. 137, where, after the death of the lessee and the acceptance of a month’s rent in advance from his widow and before the expiration of the month, the landlord, on an unfounded rumor that the widow had assigned the lease and thus broken the covenant against assignment, confessed a judgment against the dead man under the terms of the lease, and without previous noticé of the judgment or execution, the widow and heirs were dispossessed “ at the early hour of eight o’clock in the morning in February.”

Whatever may be thought of the public policy of such a practice, it can not become engrafted upon our forcible detainer proceedings without the consent of the Legislature.

The act provided a new remedy and the course of procedure to obtain it, and no remedy or mode of procedure can be pursued except that directed by the act. “If the act has prescribed the remedy for the party aggrieved, and the mode of prosecution, all other remedies and modes are excluded.” Miller v. Taylor, 4 Burr, 23 and 24; Smith v. Lockwood, 13 Barb. 217.

Parties can not, by their contracts, vary the procedure in courts of justice prescribed by the statute. This was expressly decided by the Supreme Court of Iowa in a case which we consider in point and decisive of the question under consideration. A judgment was entered up in the District Court under a warrant of attorney in a judgment note made in Pennsylvania, which authorized any attorney in any court of record within the United States, to confess judgment against the maker of the note. A petition was filed by the maker of the note to have the judgment 'declared void, and the court so ordered. On appeal, the Supreme Court said : “It is claimed by appellant that the principles of the common law authorizing a warrant of attorney to confess judgment are in force in this State, and that the provisions of our code respecting the recovery of judgment by action and confession of judgment are merely cumulative. We do not think this position is correct. The whole subject of recovery and rendition of judgment is fully reviewed in the code, and the course to be pursued in obtaining a judgment is specifically pointed out. * * * A confession of judgment pertains to the remedy. A party seeking to enforce here a contract made in another State must do so in accordance with the laws of this State. Parties can -not, by contract made in another State, engraft ‘upon, our procedure here, remedies which, our laws do not contemplate nor authorizes Hamilton v. Schoenberger, 47 Iowa, 385.

A-fortiori, parties within the State can not, by contract, engraft upon the procedure prescribed for a summary proceeding, a remedy or a practice, not warranted by the statute. While parties by consent may waive rights, they can not thus amend the law. A fundamental requisite to the validity of a judgment is that the court should have had jurisdiction of the subject-matter and of the parties.

A judgment against a defendant who has not been served at all with process and who has not appeared, is a nullity. The record shows no process to the defendant and no appearance by him, but shows a departure from the course specifically pointed out by the Stoke, and an. attempt to give jurisdiction of the defendant and enter judgment against him in a manner which the statute does not contemplate nor authorize. A confession of judgment upon a warrant of attorney in an. action of forcible detainer in a court of record is as irregular and unauthorized as it would be in a justice court. Such court of record does not proceed in forcible detainer by virtue of its power as a court of general jurisdiction, but derives its authority wholly from the statute, and in such proceeding is therefore to be treated as a court of special and limited jurisdiction. Phillips Ev., p. 946, Cowen & Hills Notes; Burns v. Nash, supra.

A court of special and limited jurisdiction, like a justice court, has no authority to enter a judgment by confession on a warrant of attorney, even in a case where such judgment would be authorized in a court of record by the common law. Alberty v. Dawson, 1 Binn. 105.

From no point of view are we able to sustain the authority of the court to enter the judgment appealed from. We liave carefully examined the question and re-examined the views expressed in the opinion of Mr. Justice McAllister in Burns v. Nash, supra, and such ré-examination has tended to confirm ns in the position there announced. The court liad no power to enter the judgment in this form of proceeding on the warrant of attorney contained in the lease, and the judgment is therefore coram non judice and void, and must be reversed.

Judgment reversed.