author: Treat, C. J. Dissenting Opinion of Justice Trumbull.

text:
    Eber B. Ward, et al., Appellants, v. Oney Salisbury, Appellee.
    APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.
    In an action of assumpsit, brought to recover wages due for sailing a vessel by a captain, it was held that the defendants in such an action, for the purpose of mitigating damages, might introduce the testimony of a Harbor Master, although be was not skilled as a navigator, to show any fact within his knowledge respecting the management of the vessel, and to give his opinion whether such management wao skillful or unskillful.
    This was an action of assumpsit on the common counts, for work and labor, brought by appellee against appellants, to recover wages due liim for sailing the steamer Pacific, as Captain. During the progress of the trial, the defendants in the Court below, introduced the Harbor Master of the port of Chicago, as a witness to show that the plaintiff managed the vessel unskillfally, in order to reduce the amount claimed. The facts of the case, upon which the opinioi is based, are sufficiently stated in it.
    The cause was tried before Spring, Judge of the Cook County Court of Common Pleas, at the October special term, 1850, of that Court.
    Several questions were presented in argument, which, not being referred to in the opinion of the Court, are not noticed here.
    H. G. Shumway, for Appellants.
    The interrogatory propounded to Durfee the Harbor Master-calls for facts in reference to the management of the Pacific. A witness not a professional man, may give his opinion in evidence, with the facts on which this opinion is founded. 17 Vermont, 499; 7 ibid, 158.
    J. H. Collins & I. N. Arnold, for Appellee.
   Treat, C. J.

This was an action of assumpsit brought by-Salisbury against the owners of the steamer Pacific, to recover compensation for services performed as master of the vessel. It appeared in evidence, that he commanded the boat during the year 1848. From May until October, she ran between Detroit and Buffalo; during the months of October and November, between Chicago, St. Joseph and Milwaukee. The defendants attempted to show in mitigation of damages, that the plaintiff exhibited a want of skill in conducting the vessel. A witness testified, that he did not manage the boat well, particularly in. going in and out of harbors. The defendants called a witness, who testified, that he was harbor master of the port of Chicago during the year 1848; that he had a good deal of knowledge of vessels, and knew something of sailing them, but did not understand the science of navigation, and was not a practical sailor. They then asked him, “How did the plaintiff manage the Pacific, in coming in and going out of the Chicago harbor?” The plaintiff objected to the question, on the ground that the witness was incompetent from the want of knowledge of navigation. The Court sustained the objection, and the defendants excepted.

The mode in which the plaintiff managed the boat, was a material inquiry on the trial. ■ The value of his services depended chiefly on the manner in which he discharged his duties as master. Any evidence, therefore, that tended to show negligence or unskillfulness on Ms part, was properly admissible in mitigation of damages. In this point of view, the Court erred in excluding the testimony of the harbor master. The interrogatory did not necessarily call for the opinion of the witness. It was clearly competent for him to state any facts within his knowledge respecting the management of the vessel. And, we think, his opinion, in connection with such facts, was admissible. He was charged with the execution of the harbor regulations. In the exercise of Ms duties, he necessarily became familiar with the character and condition of the harbor, and the manner in which vessels were brought into and taken out of port. His position would enable him. to detect any want of skill in the management of a particular vessel. If he witnessed the operations of the Pacific, while - entering and departing from the harbor, his opinion might go as far to enlighten the jury, as that of a professional seaman founded upon facts detailed by witnesses. It might, indeed, from the circumstances in which he was placed, be entitled to greater weight, than the mei'e opinion of an experienced navigator having no personal knowledge of the facts He should have been permitted to state the facts that came under Ms notice respecting the management of the vessel, and his opinion whether that management was skillful or unskillful. The question was relevant to a material issue in the case, and the answer might have had a controlling influence on the verdict. The ruling of the Court was erroneous, and, as it may have operated to the prejudice of the defendants, the judgment will be reversed, and the cau-se remanded.

- Judgment reversed.

Dissenting Opinion of Justice Trumbull.

In my judgment, the question propounded to the witness was incompetent, for two reasons. First, Because it assumed, that the witness had seen the Pacific coming in and going out of Chicago harbor, when there is no evidence in the record, that he ever saw the Pacific enter or leave that harbor. No proper foundation was laid for the question. The fact that the counsel objected to it for a wrong reason, would not prevent the Court from excluding it for a right one. The judgment is not surely to be reversed, because the Court below refused to permit an improper question to be asked, although the attorney may have urged a wrong reason for his objection.

Secondly. I am of opinion, that the question was improper for the reason assigned by the counsel. The object of the question clearly was, to draw out the opinion of the witness, as to how the plaintiff managed the boat.

The witness had shown by his previous testimony, that he did not understand the science of navigation; and I am not aware that it is any part of the duty of a harbor master, to take steamers in and out of port, or that he must necessarily have any knowledge upon that subject.

As a general rule, the opinions of witnesses are not admissible an evidence; and when they are admitted, it is upon the principle, that the witness from his profession or business, is supposed to possess some peculiar knowledge or skill in reference to the matter, about which his opinion is sought. The witness in this -case, is not only not shown to have possessed any such knowledge, but it is negatively .shown that he did not possess it.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Thomas Bell et al., Pltffs in Error v. Henry Sheldon et al., Defts in Error.
    ERROR TO McHENRY.
    It is erroneous to enter final Judgment against a defendant, when the issue presented by a plea has not been tried.
    This was an action of assumpsit brought by the defendants in error in the McHenry Circuit Court. Several pleas in addition to the general issue, were filed by the defendants; to the special pleas, demurrers were filed, which were sustained by the court, and the defendants standing by their pleas, judgment was rendered for the plaintiffs for the sum of $530 42, without any notice of the issue joined upon the plea of non-assumpsit.
    The cause was heard before Henderson, Judge, at April term, 1851.
    C.. McClure, for Pltffs in Error.
    J. Loop, for Hefts in Error.
   Treat, C. J.

This judgment must be reversed. After sustaining a demurrer to several special pleas, the Court proceeded to render a final judgment against the defendants, without noticing a plea of non-assumpsit.

The issue presented by that plea had to be tried and found against the defendants, before the plaintiffs were entitled to judgment.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    John E. Dow, impleaded with William Dow, Pltff in Erorr, v. Samuel Rattle, Deft in Error.
    ERROR TO Me HENRY.
    It is error to enter a final judgment, before disposing of the issue tendered by a plea. It is error to enter a judgment against one of several defendants, without disposing of the case as to the others.
    Where there are several defendants before the Court, the case has to be tried as to all, before any final judgment can be properly entered.
    This was an action of assumpsit, brought by Rattle in the Circuit Court of Mo Henry county. The declaration contained a count upon an endorsed note, and the common counts. The process issued against John E. Dow, and William Dow. The return showed service on John E. Dow, William Dow not being found.
    A demurrer was filed to the first count of the declaration, averring, “ And the said defendants comes and defends and says,” &c., and that the “ plaintiff ought not to have his action against them, and that they are not bound,” &e., signed 0. McClure, Defts. Atty, plea of the general issue was filed by both defendants, to the remainder -of the declaration. Issue was joined to the demurrer and plea. The demurrer was overruled. The defendants stood by their demurrer, and the Clerk assessed the damages of plaintiff at two hundred and twenty-eight dollars and thirty-nine cents, and judgment was rendered against John E. Dow, for that amount. No notice was taken of the other defendant or of the plea of the general issue.
    John E. Dow, sued out this writ of error, and assigns the following grounds of error. The overruling of the demurrer. The rendition of the judgment-against John E. Dow, on the demurrer, when the demurrer had been filed by the defendants jointly. The rendition of the final judgment, without disposing of the plea of the general issue.
    CL McClure, for Pltff in Error.
    James Loop, for Deft in Error.
   Treat, C. J.

Assumpsit against two; one only served with process. The defendants demurred to the first count, and pleaded non-assumpsit to the second. The Court overruled the demurrer, and without noticing the plea, rendered judgment against the defendant served with process. That judgment must be reversed on two grounds. It was error to enter final judgment for the plaintiff, before disposing of the issue tendered by the plea. It was also error to enter judgment against one of the defendants, without disposing of the case as to the other: Both were before the Court, and the case had to he tried as to both, before any final judgment could properly be entered.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    Jonathan Weldon, Pltff in Error, v. William Burch et al., Defts in Error.
    ERROR TO WINNEBAGO.
    When an offence, as against a witness who was an accomplice, is barred by the statute of limitations, he is bound to testify.
    A witness will not be excused from testifying to a fact, material to the issue, because his testimony might subject him to disgrace or reproach.
    This was an action of trespass; brought by the plaintiff against the defendants in the Winnebago Circuit Court. The declaration alleges, that the defendants forcibly entered the house of the plaintiff; and carried him therefrom, maltreated in many respects-, and finally covered him with tar and feathers.
    To this declaration, the plea of not guilty was interposed and issue was joined. Pleas, setting up the statute of limitations of two years, as to some of the counts in the declaration were also interposed, and issue joined thereon.
    The case came on for trial at the April term, 1845, before Mr. Justice T. C. Browne, and a jury. On the trial, several witnesses were called and sworn, on the part of the plaintiff, who declined to answer the interrogatories propounded, because their answers might implicate them in the transaction, for which the suit was brought, and subject them, moreover, to indictment and punishment. To which it was answered by the counsel for the plaintiff, that the statute of limitations had run upon the offence-. The Court decided that this did not take away the privilege of the witness, as the Court could! not judge whether all prosecutions were barred. And that the witness could not be compelled to give evidence, which would tend to implicate them in the transactions in question. The jury found for the defendants. The plaintiff excepted to the ruling of the Court, and brings his cause to this Court, by writ of error, and assigns for error, the allowing of the privilege claimed for the witnesses.
    E. S. Lelajstd, for Plaintiff in Error.
    Where the offence, in relation to which the witness refuses to answer questions, is barred by the statute of limitations, the witness cannot claim the privilege, because he cannot be punished for the offence. Close v. Olney, 1 Denio, 319; The People v. Mather, 4 Wend., 255; U. S. v. Smith, 4 Day, 121; Parkhurst v. Lawton, 1 Merivale, 400; Henry v. Salina Bank, 1 Comstock, 83.
    When the question requires an answer,- which would be directly material to the issue, and is not asked for the purpose of impeaching the witness only, the witness must answer, if the answer would not render him liable to punishment, though he would thereby be degraded morally. Cowen & Hills’ notes to Phillips, Ev. part 1. N. 521 to p. 279; Candell v. Pratt, 1 Moody & Malkin, 108; King v. Edwards, 4 T. R., 440; Harris v. Tippet, 2 Camp., 638, Peake’s Ev., 129, 1 Starkie’s Ev., 168; Lohman v. People, 1 Comstock, 385; 1 Green., Ev., §454, Swift's Ev., 80.
    Although a witness may not be bound to' answer a question, the answer to which, would directly show his moral turpitude, . he is bound to answer all questions in relation to the subject, which only tend to show it, but do not require him directly to admit it. People v. Mather, 4 Wend., 250; Parkhurst v. Lawton, 1 Merivale, 400; McBride v. McBride, 2 Esp., 242.
    J. Marsh, for Defts in Error.
   Treat, C. J.

This was an action of trespass for an assault and battery. It was tried in April, 1845. It appeared in evidence, that, on the night of the 26th of February, 1842, the plaintiff was forcibly taken from his house, by some ten or twelve persons in disguise, and carried some distance, and much maltreated. For the purpose of identifying the defendants with the commission of the outrage, the plaintiff called in succession several witnesses, who resided in the neighborhood where the occurrence transpired, and still continued to reside there, and asked them whether they had seen any of the defendants on the night in question. The witnesses declined to answer, on the ground that they could not do so, without subjecting themselves to indictment and punishment. The plaintiff insisted that the offence was barred by the statute of limitations. The Court decided that the witnesses were not bound to answer, and the plaintiff was deprived of the benefit of their testimony.

The witnesses were not exempt from testifying. Any criminal offence growing out of the transaction in question, was clearly barred by the statute of limitations. If a riot, as it probably was, the offence was barred in eighteen months; if the graver offence of burglary, as suggested by counsel, it was barred in three years. The statute operated as a complete bar in either case. More than three years intervened between the commission of the act, and the time of trial. The witnesses were not within the exception in the statute, for they had not fled from justice. See E. S., ch. 30, §200. Lapse of time had secured them a perfect defence to any attempt to prosecute them criminally. The reason of the rule, that a party shall not be compelled to give testimony that may tend to subject him to a criminal prosecution, had no application to these witnesses. They could not. therefore, claim the benefit of the rule. They would not have incurred the least hazard by testifying. The cases of Close v. Olney, 1 Denio, 319; The People v. Mather, 4 Wend., 229, and The U. S. v. Smith, 4 Day, 121, fully support the position, that the witnesses were not privileged.

But, it is contended, that they were not bound to answer, because their testimony might have had a direct tendency to degrade their character. The authorities all agree, where the question is asked respecting a matter collateral to the issue, "or with a view to impair the credibility of the witness, that he is not bound to give testimony that will directly tend to disgrace him. There is, however, much conflict of opinion on the point, whether he is bound to testify concerning a matter material to the issue. Such being the case, we are at liberty .to adopt the rule that may best promote the rights of parties, and subserve the ends of justice. The views of Mr. Greenleaf on this subject, are so forcible and sound, as to justify a quotation at some length. He says: “On this point, there has been a great diversity of opinion, and the law still remains not perfectly settled by authorities. But the conflict of opinions may be somewhat reconciled by a distinction, which has been very properly taken, between cases where the testimony is relevant and material to the issue, and cases where the question is not strictly relevant, but is collateral, and is asked only under the latitude allowed in a cross-examination. In the former case, there seems great absurdity in excluding the testimony of a witness, merely because it will tend to degrade himself, when others have a direct interest in that testimony, and it is essential to the establishment of their rights of property, of liberty, or even of life; or to the course of public justice. Upon such a rule, one who had been convicted and punished for an offence, when called as a witness against an accomplice, would be excused from testifying in any of the transactions, in which he had participated with the accused, and thus the guilty might escape. And, accordingly, the better opinion seems to be, that where the transaction forms any part of the issue to be tried, the witness will be obliged to give evidence, however strongly it may reflect on his character.” 1 Greenlf on Ev. §454 (4). We have no hesitation in adopting the rule thus laid down. A party ought not to be deprived of the benefit of testimony material to the issue in the case, nor ought the course of public justice to be defeated, merely because a witness may subject himself to disgrace or reproach. The privilege of the witness ought not to be considered as superior to the rights of individuals, or the demands of public justice. He is required to speak of a transaction in which he voluntarily participated. If he sustains a loss of reputation in consequence of his disclosures, it is but the result of his own wrong. In the present case, the testimony sought was clearly" material to the issue on trial. In either point of view, the witnesses were bound to testify, and the Court erred in excusing them.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    Reuben Vose, et al., Pltffs in Error, v. James Hart, Deft in Error.
    ERROR TO LAKE.
    The plea of non cepit, in an action of replevin, only puts in issue the taking of the property, and does not authorize a judgment of retorno hdbendo.

    This was an action of replevin in the Lake Circuit Court, brought by plaintiffs in error, and tried before Dickey, Judge, and a jury, at October term, 1850; and a verdict and judgment for the defendant. ■ Damages for $15.85' with costs, and a return of the property replevied, were awarded by the judgment. A motion for a new trial was overruled, and a bill of exceptions taken. The only plea filed, denied the taking of the goods in the said declaration mentioned, or any of them, in manner and form, as the said plaintiffs alleged. Issue was joined on this plea.
    T. S. Dickey & H. W. Blodgett, for Pltffs in Error.
    The judgment of the Circuit Court was erroneous in awarding a return of the property, upon the finding of the issue of non cepit, in favor of the defendant. Anderson et al. v. Talcott, 1 Gill., 871; 2 Starkie’s Ev., 715; 1st Williams’ Saunders, 347: 1 Chitty’s Pl., 537; Johnson v. Howe, 2 Gil., 342; 2 Saunders’ Pl. and Ev., 287; 2 Greenleaf’s Ev., sec. 562, p. 532.
    The plea of non cepit admits the property in the plaintiff, and only puts the taking in issue. 8 Monroe, 421; Selwyn’s Nisi Prius, 1028; 3 Wendell, 671; Whitwell v. Wells, 24 Pick., 28.
    Perry & Searls, for Deft in Error.
   Treat, C. J.

Declaration in replevin. Plea non cepit. Verdict for the defendant. Judgment that he recover his costs, and have a return of the 'goods replevied. The judgment cannot be sustained. It is broader than the issue. The defendant was only entitled to a judgment for costs, the right of property not being in issue. The plea of non cepit admitted the right of property to be in the plaintiffs, and merely put in issue the taking of the goods. If the defendant desired a return of the goods, he should have put the right of property in issue, by formally traversing the plaintiff’s allegation of right, or by pleading specially that the right was in some other person. In one of these ways only, could he controvert the plaintiffs’ claim, and impose on them the burden of showing that the goods replevied were their property. As the case stood, the jury had only to pass on the matter of the caption by the defendant. Anderson v. Talcott, 1 Gilman, 365. The Court erred, therefore, in awarding a writ of retorno hdbendo. The judgment will he reversed, and the cause remanded, with leave to the defendant to put the right of property in the goods in issue, by the filing of additional pleas.

Judgment reversed.


text:
    Lester H. Magher, survivor, &c. Pltff in Error, v. Calvin W. Howe et al., Defts in Error.
    ERROR TO Me HENRY.
    A warrant of attorney to confess a judgment is no part of the record, nor is an affidavit, showing the death of one of the makers of it; to make them such, they should be embodied in a bill of exceptions.
    This was a judgment by confession, entered at the April term, 1850, of the McHenry Circuit Court, Henderson, Judge, presiding.
    The plaintiffs in the Court below, produced a note signed L. H. Magher, and N. W. Birge, with a warrant of attorney, authorizing a judgment to be confessed thereon; upon this note a declaration was filed, and a plea confessing, &c., the affidavit proving ihe signatures to the warrant of attorney, states that Noah W. Birge lias, since the making of the said note and power of attorney, departed this life. Magher sued out this writ of error, assigning, that it was error in the Circuit Court, to enter the judgment by confession, upon the warrant of attorney, signed by Birge after his decease.
    Loop & Hurlbut, for Pltff in Error.

      Warrants of attorney are special powers, and to be strictly pursued. 18 Johns., 363; 13 Johns., 307. Joint and several warrant of attorney, one dies, judgment against survivor, held to be without authority. Hunt v. Chamberlain, 3 Halsted, N. J. R., 336; cited 7 Am. Com. Law Cases, 395. To the same point. 15 East, 592; 7 Taunt., 453; 1 Chitt., 322; cited Graham’s Prac., 771.
    Fuller & Burgess, for Defts in Error.
    There is nothing in the record proper, in this cause, upon which the errors assigned can be brought before the Court.
    The warrant of attorney and affidavit are no part of the record. They are papers upon which the motion for judgment is founded. See forms of records upon judgment by confession. Arch. Forms, 331, and Tidd’s Prac., 500; 2 East, 136, where the rule adopted, requiring them to be filed.
    The proper mode of taking advantage of want of authority in an attorney to appear for a party, is by motion in the Court below. Ransom v. Jones, 1 Scam., 293. Then the matter comes up on bill of exceptions, embodying papers filed in the cause.
    The Court below can give such relief in cases of this sort, as to justice belongs. Lyon v. Boilvin, 2 Gil., 635; 6 Johns., 300.
    The warrant is sufficient authority. It is a covenant or agreement under seal, see 11 Ills., 622, by makers of note with the plaintiffs below, (executed at the same time and on the same sheet of paper as the note,) that a judgment by confession may be entered on note, when due, if not paid. It is therefore under our statute, 299, §3, several as well as joint, and remains good as to the survivor, in all its parts and powers.
    The death of Birge happened during the term, and after the first day. Judgment might have been entered againtet both, at any time during that term. Tidd’s Practice, 496 ; 6 T. B., 368, 7 T. E., 21; 2 Strange, 882, 1081.
   Treat, C. J.

This record presents this state of case. A declaration against Magher, as survivor of Birge, on a promissory note, made by Magher and Birge. A plea, confessing the cause of action, and consenting that judgment may be entered. Then follows an order of the Court, which recites the production and proof of a warrant of attorney, authorizing a confession of judgment against the defendant, and proceeds to enter a judgment accordingly. It is now insisted, that it was irregular and erroneous to enter up a judgment against the surviyor, on a warrant of attorney, executed by the debtors jointly. It is contended, that a warrant of attorney to confess a judgment, is a special power that must be strictly pursued, and several English cases are referred to, which seem to sustain the position. But this question is not legitimately presented by the record, and it is, therefore, useless to enter upon its discussion. The warrant of attorney is not properly in the record. We do not judicially know that it was executed by both of the makers of the note. The conclusion that it was executed by Magher after the death of Birge, is perfectly consistent with the statements of the record. The clerk has copied into the transcript a warrant of attorney, purporting to be executed by both of the debtors, and an affidavit showing the death of Birge, on a subsequent day. But these papers do not thereby become a part of the record. They constituted the evidence on which the Court acted in entering the judgment, and, like any other evidence produced during the progress of a case, form no portion of the record, unless introduced into it by a bill of exceptions. If the defendant desired to present the question, he should have tendered a bill of exceptions to the decision of the Court, and in that way have incorpo3’ated the papers into the record of the case. Saunders v. McCollins, 4 Scam., 419; Corey v. Russell, 3 Gil., 366 ; Petty v. Scott, 5 ibid, 209. The judgment is affirmed.

Judgment affirmed.


author: Trumbull, J.

text:
    Rezin Wilcoxon, Appellant, v. Thomas McGhee, Appellee.
    APPEAL EEOM STEPHENSOK.
    A settler upon the public lands, cannot overflow other public lands by dams, or otherwise obstructing a stream, running through lands he may eventually purchase; he doe's not acquire this right by a subsequent purchase of the land, such a privilege not having been contemplated in making the grant.
    The subject matter of the grant, is the land, having a fixed and definite description, nothing passes as parcel of the granted premises, beyond what is included within the boundaries expressed in the patent, or such as is necessarily and naturally annexed to the land.
    The right to overflow adjoining lands, is not an appurtenance agreeing in nature or quality with land itself; but such an easement more properly appertains to somethiag that has been put upon the land.
    Where a mill and its appurteuances are conveyed, the mill beitig the subject matter of the grant, the right to continue to overflow the lands of the grantor will continue to the same extent, as when the grant was made. But this rule does not apply to grants of land from the government.
    McGhee sued Wilcoxon in the Stephenson Circuit Court, in an action on the case. The declaration contained three counts. The first count charged the defendant with having maintained, kept up and continued a mill dam across Eichland Creek since the first day of October, A. D. 1846, causing the water to overflow the plaintiff’s land, describing it. The second count charged the defendant with having obstructed the water of Eichland Creek, causing it to overflow the plaintiff’s land. The third count charged the defendant with having erected a mill dam on his own land across said creek on the 1st day of October, A. D, 1846, and with having continued it, thereby obstructing the natural course of the water of said creek, causing it to overflow the plaintiff’s land.
    To this declaration the defendant filed the general issue, and three special pleas. The first special plea, avers a purchase from the U. S. on the tenth day of July, A. D. 1844, of the land upon which the mill and dam are situated. That the dam and mill were erected before his purchase, and that the plaintiff purchased his land subsequently, and that the land purchased by the plaintiff as well as that purchased by the defendant, was overflowed at the time of the purchase.
    The second special plea avers that on, and for a long time previous to the tenth day of July, 1844, there was and had been erected ,on the land of the defendant, a saw mill, and a mill dam across the said creek, which caused the .water of said creek to flow the land of the defendant and also the land of the- plaintiff, and that the water raised by the dam was used to carry the said saw mill; that on the 10th day of July, A. D. 1844, the defendant purchased of the U. S. the tract of land on which the rnill and dam stood, with all the rights, privileges, immunities, and appurtenances thereto belonging; that at the time he purchased the land, the U. S. owned the land of the plaintiff, and that the plaintiff purchased of the IT. S. with notice of the above facts, and subsequent to the purchase of the defendant.
    The third plea is substantially the same as the second, with the additional averment that the mill and dam had been lawfully erected, &c., and also averring that the tracts of land covered by the mill pond had been surveyed and platted by the U. S. as a mill pond.
    A demurrer was hied by the plaintiff to the special pleas of the defendant, which was sustained by the Court.
    A trial was had upon the general issue, and a verdict and judgment for the plaintiff for the sum of $12 50. There was a motion for a new trial, and in arrest of judgment, which were denied. The cause was heard before Sheldon, Judge, and a jury, at November term, 1849.
    The appellant assigns for error, the sustaining the demurrer of the appellee to the special pleas of the appellant, and in overruling the motions in arrest of judgment and for a new trial.
    M. P. Sweet, made the following points,
    and cited the following authorities in support thereof:
    The defendant, by his patent from the U. S., acquired all the title of the government to the mill and dam, as well as the soil, and with the mill and dam, all things appurtenant to them. Angell on Water Courses, pp. 1, 2, 4, 39, 44, 45; New Ipswich Woolen Factory v. Batchelder, 3 N. H., 190; 5 S. & Rawle, Pa. Rep., 107, 169; 2 Hill, 620; 2 Black. Com., 16, 17; 10 Pick., 138, 141; 17 ibid. 23; Co. Litt., 307; 1 Sum. U. C. C. R., 492.
    The pond was appurtenant to the mill. In legal parlance, the term appurtenance is used to signify something belonging to another thing as principal, and which passes as an incident to the principle thing. Bouvier’s Law Diet., 119; 10 Peters, 25; An•gcll on Water Courses, 43; 1 Serg. &. Rawle, 169; 3 Saunders, 401. The defendant, as the grantee of the government, had the right to enjoy the property granted, in the same condition in which it was, at the time of the grant. 5 Wend., 523.
    The government sustains to its grantees, the same relation as grantor, that private persons do. 2 U. S. Dig., 926; 2 Hill, 620; Angelí on Wat. O., 1, 2. It matters not what the intention of the grantor may have been, if by the terms of his deed, the right is conveyed. 6 Cowen, 518; Angelí on W. C., 4.
    Where a right is granted by a riparian proprietor, to abut a mill dam on his shore, the grantee has prima facie a right to all the water raised by the erection of the dam. Bliss v. Rice, 17 Pick., 23. A mill includes not merely the building in which the business is carried on, but includes the dam and other things annexed to the freehold and necessary for its beneficial enjoyment. Whitney v. Olney et al., 3 Mason’s C. C. Rep., 280.
    The principle that an incorporeal right appurtenant to land, without an express grant of such incorporeal right or of the privileges and appurtenances, will pass by a deed of the land, is well established. Angell on W. C., 39; Co. Litt, 307, (a); 10 Pick., 138; 21 Wend., 290.
    On the sale of the public lands, the patent transfers to the purchaser the entire legal estate and seizin, to the same extent the government held them. Cook et al., v. Foster, 2 Gil., 652 to 656.
    In the grant of a thing, whatever is parcel of it, or of the essence of it, or necessary to its enjoyment, in common intendment, is included in it, and passes to the grantee. 3 Mason, 272, 284. If after the annexation of peculiar qualities, he alien one part of his heritage, it seems but reasonable, if alterations -thus made are palpable and manifest, that a purchaser should take the grant burthened or benefitted as the case may be, by the qualities which the previous owner had given to it. 8 Penn., 383,
    Thos. J. T üE2íeb, for Appellee.
    ' The plea of the appellant which alleges that the U. S. were the owners of the W. g FT. W. £ S. 11, T. 27, R. 7, and the E a E. E. a S. 10, T. 27, R 7, and that they had a mill and dam on the W. g- E. W. 1 S. 11 aforesaid, which caused the water to flow back upon the E. a E. E. -j- S. 10 aforesaid, is no answer to that part of the declaration, which charges the appellant with flowing other lands of the appellee than the E. a of E. E. a S. 10 aforesaid. 3 Scam., 510; 5 Gil., 548.
    All the rights of the grantor pass to the grantee, as well the right to remove injuries, as to recover rights, and the remedy lies to the grantee of the party first injured as well as against the grantee of the party first injuring. Angelí on W. C., 148.
    The government of the II. S. selling to the appellee the W. \ E. W. f S. 11, T. 27, R. 7, conveyed no right to continue -to drown the E. a S. E. a S. 10, nor any other land than the tract sold. 1 Sum. 492; Í0 Peters, 25; 2 U. S. Dig., Sup., 926.

      Under the land system, of the U. S., the government selling to an individual, conveys the naked title to the tract sold, and no appurtenances pass by such sale except those attached to the soil of the particular tract. 2 U. S. Dig., Sup., 926. The U. S. cannot build saw mills, nor mill dams, within the limits of a state, nor sell mills, dams, or water power within a state without express authority from the State. 2 Public Land Laws, p. 5, No. 7.
    The purchaser of a tract of land from the U S. is entitled to the land free from all incumbrance; and the grantee of the U. S. acquires the right of action, to recover damages, for the continuance of a nuisance erected previous to his purchase from the U. S. The building of the dam mentioned in the declaration, was a trespass upon the domain of the U. S., and a grantee of the-U. S. acquires the right of action for continuing the dam, against the person who continues it. The purchasers of government land take the streams in common. Pub. Land Laws, Part 1, p.. 54, §9, p. 56, §6.
    Appurtenances only pass by grant, by a common person; if" the government grants, they do not pass. 4 Bac. Ah., 534;', Plow., 251. The government cannot sell except under a law,, and a sale adverse to the law is void. Mattel’s Law of Nations,. 116. A reservation of a mill site, reserves the soil for the site.. 6 Cowen, 677; 2 Caines’ Cases, 87; 4 Bac. Ab., 585. So of a. sale of a mill site. Land is not appurtenant to land.
   Trumbull, J.

This case presents the single question, of” the right of a purchaser of a tract of public land, having upon it,, at the time of the purchase, a mill and dam, which cause the water of a stream running through it to flow back upon other-public lands, to continue the dam so as to overflow such other ■ lands after they have been entered by individuals.

It does not appear from the record, that the person entering the land upon which the mill stood, paid anything additional on account of the mill, or for the privilege of flooding other lands;. but he made the entry and received a patent in the usual form..

The manner in which the public lands are disposed of, the character of the parties to the grant, and its subject matter, are all circumstances proper for consideration in arriving at the intention of the parties; and when we look to these circumstan.ces, there can be little difficulty in determining what rights -are acquired by a patentee of public land, especially when it is recollected that grants by the government are construed favorably for the grantor, and pass nothing by implication. , 2 Bl. Com., 347; 5 Cruise’s Digest, Tit. King's grant, §25 et sequeter; United States v. Arredondo, 6 Peters, 738; Charles River Bridge v. Warren Bridge, 11 Peters, 545.

Although the general government in its liberality permits a person to enter upon and subsequently to purchase a tract of public land at the minimum price, yet- it could never have been its intentioq in granting this favor, to bestow also upon the settler, the privilege perpetually to inundate and render valueless, other tracts of public land, by damming up a stream running through the one which he might eventually purchase. The purchaser under such circumstances, pays nothing for the privilege of overflowing other lands, it is not a right necessarily or naturally appertaining to the land he purchases, and could never be presumed to have entered into the contemplation ‘ of the government, in making the grant.

The subject matter of the grant, is the land, having a fixed .and definite description, and nothing passes as parcel of the .granted premises, but what is included within the boundaries expressed in the patent, or is naturally or necessarily annexed to the land. Grant v. Chase, 17 Mass., 443; Manning v. Smith, 6 Conn., 289.

Regularly “nothing can be appendant or appurtenant, unless it agree in nature and quality with the thing whereunto it is appendant or appurtenant.” Bac. Ab., Tit. Grants, I, 4. The right to overflow adjoining lands, is not an appurtenance agreeing in nature or quality with land itself, and though perhaps a ■.convenience, is not absolutely necessary, to the enjoyment of the land; but such an easement more properly appertains to something that has been put upon the land, as in this instance, to the mill.

In the case of the conveyance of a mill and its appurtenances, and where the subject matter of the conveyance and principal thing granted is the mill, the right to continue to overflow the lands of the grantor, to the same extent as when the grant was made, would pass with the mill, as necessary to its use and enjoyment; but here, the subject matter of the grant was the land, and the right to overflow adjoining lands belonging to the government, was not an appurtenance annexed to it by any natural or legal necessity.

Let the judgment be affirmed.

Judgment affirmed.


text:
    Robert J. Cassell, Appellant, v. Elisha Williams, Appellee.
    APPEAL FROM WOODFORD.
    A trial of right of property which results in a verdict against the claimant, does not establish or confirm a right to th¿ property in the defendant in execution.
    The case of Arena v. Reihle et al, 1 Scammon, 340, examined and explained.
    In an action against an officer to recover three times the value of property sold upon execution, which is exempted by law, the plaintiff must he the owner of the property sold.
    If an officer levies upon property, as the property of the defendant, he is not therefore estopped from subsequently denying that it is his property ; his return of the levy, is only prima facie against him.
    If a party transfers his property fraudulently before, or in good faith, after execution issued, he cannot claim the property as his own, and recover of the officer selling it, upon the ground that it was exempt from execution.
    This was an action of trespass, originally brought by appellee against the appellant, before a justice of the peace, to recover a penalty under the statute for taking property under an execution against the ajspellee, which was exempt from execution.
    The case was taken into the Circuit Court of Woodford, by appeal, and a trial by the Court, Davis, Judge, presiding, without a jury, and judgment rendered against said appellant, for $99 00 and costs, at April term, 1851.
    The appellee proved the judgment, upon which execution issued to appellant, the execution, delivery thereof to appellant, a constable, and levy upon a mare and sale thereof; that the property was claimed by George Kingston, that a trial of the right of property was had, and the property found to be subject to the execution; that he had only about $25, worth of property, besides the mare, except some little kitchen and household property, scarcely sufficient for the appellee’s family; that he was a householder, living with his family; that he was present at said trial of the right of property, and then, and previous thereto, ■denied that he owned the mare, and after said trial, and before sale, he notified the constable that he claimed the property as exempt from execution.

      The execution was dated, January 24, 1850. The levy was made, March 11, 1850. The trial of the right of property, March 16, 1850. The sale was made, March 28, 1850. The mare worth $83.00.
    The appellant proved, by George Kingston, the claimant of the property, that he supposed himself to be the owner of the property; he had a mortgage on it, and it was forfeited and given up to him, but he let it remain with appellee; and previous to said trial of the right of property, appellee told witness that the mare was levied upon; thg,t he, appellee, admitted and declared the mare was not his property.
    The mare sold for $11.60 above the execution, which was paid to appellee by appellant, and he received it under a stipulation that it should not affect this suit.
    The Court rendered judgment against appellee, from which he appealed to this Court, and in the Court below filed his bill of exceptions.
    The appellant assigns for error the decision of the Court below, in rendering said judgment.
    H. O. Merrimax, for Appellant.
    Refers to Cook v. Scott, 1 Gil., 333; McClusky v. McNeely, ibid, 579.
    1ST. H. Purple, for Appellee.
    Refers to Arenz v. Reihle, 1 Scam., 341.
   Trumbull, J.

Williams sued Cassell, in trespass, to recover three-fold the value of a mare, taken by the latter, as constable, on an execution against the former.

The record shows, that the execution was issued and came to the hands of Cassell, on the 24tli day of January, eighteen hun ■ dred and fifty ; that he made a levy upon the mare in controversy, as the property of Williams, on the eleventh of March following; that he, Kingston, claimed the mare as his property, whereupon a trial of the right of property was had, which resulted in a judgment against the claimant; that the mare was in the possession of Kingston, to whom she had been given up by Williams on a forfeited mortgage, at the time of the levy, though he permitted Williams to use her when he pleased; that previous, to the trial of the right of property, Williams disclaimed all ownership of the mare, and said that she belonged to Kingston; that Williams was the head of a family, residing with the same, at the time of the levy and sale, and had not, exclusive of the necessary household furniture and the mare in controversy, which was valued at thirty-three dollars, exceeding twenty-five dollars worth of property; that he gave notice to Cassell, some three or four days after the trial of the right of property, and before the sale, that he claimed the mare as exempt from execution, but that Cassell disregarding the notice, proceeded to sell the mare on the execution.

Upon this state of facts, the Circuit Court found the defendant guilty, and gave judgment against him for three times the value of the mare.

This finding and judgment was clearly erroneous. The evidence showed that Williams had no such title to the mare, as would authorize him to maintain this action. As between the plaintiff in the execution, and Kingston, the right of property was found against the latter, but it by no means followed, that it belonged to the execution debtor. When property levied upon is claimed by a third person, the question to be tried, is “whether the right of such property be in such claimant or not.” R. S ch. 91, §1. The judgment is conclusive only upon parties and privies. It does not determine that the property belongs to the defendant in the execution, for it often happens, that property not his own at the time, is liable to be taken in satisfaction of an execution against him.

The case of Arenz v. Reihle, 1 Scam., 340, has been referred to, as deciding that a judgment against a claimant upon the trial of a right of property, is conclusive evidence, that the property levied upon belongs to the defendant in the execution, but sucli is not the point decided in that case, though the language of the Court would, at first view, seem to justify such an inference. The question in that case, was whether the record of a trial of the right of property, wherein judgment had been given against the claimant, was admissible in evidence against Arenz, who had received the property from such claimant, after it had been attached, and a bond given to the Sheriff for its return, in case a return should be adjudged, for the purpose of showing that the property belonged to the defendant in the attachment, so far as to be liable thereto; and the Court very properly held it admissible for that purpose, upon the principle, that Arenz was privy, to the judgment upon the trial of the right of property, and bound by it.

The Court said, it is true, that “the record was not only the best evidence, but conclusive,” that the property belonged to the defendant in the attachment. This language must, however, be understood in reference to the case then under consideration, and means no more than that, in the case then before the Court, it was conclusive, as against Arenz, that the property was subject to the attachment.

It was insisted upon the argument, that Cassell having levied upon the mare, as the property of Williams, is estopped from subsequently denying that fact. If this argument be correct, then he would have been liable to Williams, even had the right of property, been found for the claimant, and in all cases where an officer, by mistake, levies upon the property of a stranger, he will become twice liable; first, to the owner, whose goods he wrongfully seizes, and secondly, to the defendant, whose goods he has admitted by his return, that he seized, though he never took them. Such cannot surely be the lav/.

The endorsement of the constable, is at most, in this action, but^nma facie evidence against him, that Williams owned the property, and that he did not in fact own it, is clearly established by proof of his own declarations, as well as the other evidence in the case.

If a party fraudulently transfer his property for the purpose of avoiding the payment of his debts, or even sell it for a valuable consideration, after it has become subject to the lien of an execution against him, he cannot afterwards claim the property as his, and recover from the officer selling it, three times its value, upon the ground that it was exempt from execution against him.

Let the judgment be reversed, and the cause be remanded.

Judgment reversed.


author: Caton, J.

text:
    The People ex relatione William K. Stephenson, v. Samuel S. Marshall, Judge of the Twelfth Judicial Circuit.
    APPLICATION FOR MANDAMUS.
    O
    The legislature cannot abolish counties, and form the territory of which they were composed into one or more counties, without submitting the act to a vote of the inhabitants affected by the change.
    A county seat cannot be removed without the affirmative vote of the inhabitants of the county.
    Territory cannot be taken from one county and added to another, except by the vote of a majority of the inhabitants of the counties to be changed
    This was an application to the Supreme Court for a peremptory mandamus. The petition of William K. Stephenson, sets ■out, That by an act of the General Assembly, approved February 25th, 1847, the county of Gallatin was divided, and that the county of Saline, forming a part of it, was organized, and a county seat established at Raleigh, in said county. That the petitioner was a resident of, and voter in the county of Saline. That said county of Saline has been recognized as a county, and that by law, Circuit Courts were held in Saline county, on the next Monday after they were held in Gallatin county; the county of Saline, being one of the counties composing the third Judicial Circuit. That afterwards by virtue of ail act of the General assembly, the county of Saline was made a part of the twelfth Judicial Circuit, the Courts therein, to be held at Raleigh, on the Mondays following the sitting of the Courts in Hamilton county. That by virtue of an act of the General Assembly, entitled “An act to create the county of Gallatin out of the counties of Gallatin and Saline,” approved February 11th, 1851, it was enacted, that the said counties of Gallatin and Saline be abolished, and that all the territory therein embraced, should compose one new county, to be styled and known as the county of Gallatin, and that the county seat of said new county of Gallatin, should be permanently located at Equality. That said act further provided for the election of county officers for said new county of Gallatin, and the permanent organization thereof, which said elections have been held, and the officers have been elected, qualified and commissioned, and are discharging their duties. That Samuel S. Marshall, presiding Judge of the said twelfth Judicial Circuit, has organized his court in Gallatin, pursuant to the last abovementioned law, and is proceeding with the business thereof, in violation of the Constitution of the State. That there is criminal and civil business pending, and undetermined, in the Circuit Court, in Saline county, and that the time for holding the Circuit Court therein has arrived. That the County Court of Saline county, regarding the last named law as unconstitutional and void, have notified and requested the Judge, to hold and convene a regular term of the Circuit Court, at Raleigh, in Saline county, without regard to the last named law, which the Judge has refused to do. Praying a mandamus ordering the Judge to hold the Court in Saline county, &c. To this petition, Judge Marshall answers, that it had been presented to him on the 26th day of May, 1851, at the sitting of the Gallatin Circuit Court, at Equality, and with a view to a speedy adjudication of the question, enters his appearance thereto, waives an alternative mandamus, or other process, and all technical objection. That he does not deny any matters of fact alleged in the petition, but admits them to be true. That he has refused to hold Court at Raleigh, in Saline county. That he will regard the provisions of the law, uniting the two counties of Gallatin and Saline, as constitutional and directory to him, until, by the order and judgment of the Supreme Court, he should be otherwise commanded.
    After hearing of the cause, a peremptory mandamus was awarded.
    A Lincoln & R. Wingate, for the Relator.
    A. G-. Caldwell & H. B. Montgomery, for the Respondent.
   Caton, J.

The Legislature, undoubtedly, was competent to pass this law, unless the exercise of such a power is clearly inhibited by the constitution. The first section of the seventh article of the constitution, provides, that “No new county shall be formed or established by the General Assembly, which will * reduce the county or counties, or either of them, from which it shall be taken to less contents than four hundred square miles, nor shall any county be formed of less contents; nor shall any line thereof pass within less than ten miles of any county seat of the county or counties proposed to be divided.” The second section provides, that “No county shall be divided, or have any part stricken therefrom, without submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of a county voting on the question, shall vote for the same.” The fourth section provides, that “There shall be no territory stricken from any county, unless a majority of the voters living in such territory, shall petition for such division; and no territory shall be added to any county, without the consent of the majority ' of the voters of the county to which it is proposed to be added.” Section five provides, that “No county seat shall be removed, until the point to which it is proposed to be removed, shall be fixed by law, and a majority of the voters of the county shall have voted in favor of its removal to such point,” These are all the provisions of the constitution which, it is supposed, inhibited the passage of the law' under consideration. The first section quoted, certainly is not offended by the passage of this law, either „. j-n letter or spirit. The object of that section is to prevent the deduction of large counties to small ones, or the creation of small counties, and also to prevent the running of new county lines too near county seats, already established. The effect of the law in question, would be to secure a larger county, instead of smaller counties, and hence the design of the convention, in framing the first section, is not disappointed. That section makes no provision for a vote of the people on the subject, and but for subsequent provisions, we think no question could he made, as to the validity of this law. This element, however, is introduced into the next section. That section, expressly inhibits the division of a county, or the taking any part therefrom, without an affirmative vote of the people of the county. The fourth section forbids, substantially, the same thing, unless a majority of the voters in the territory, which, it is proposed, shall be detached from one county and added to another, petition for the change; and then before the act can take effect, a majority of the voters of the county to which the territory is proposed to be attached, must consent thereto. By force of these two sections, territory cannot be changed from one county to another, without, in the first place a petition of a majority of voters in the territory, and then the separate affirmative vote of both counties to be affected by the change. No rational mind can doubt, after the perusal of these provisions, that it was the unequivocal intention of the convention, that county-lines already established, should not be changed, except by the deliberate vote of the people who might be affected thereby. To secure this right, and to prohibit all such changes of county lines, against the wishes of the people, was manifestly a cherished object of the convention, in framing the constitution, and of the people in adopting it.

What then are the provisions, what the object, and what the effect, of the law under consideration ? It provides for the abolition of the counties of Gallatin and Saline, and for the creation from their territory of the county of Gallatin. Its object and effect was to unite the two counties into one—to attach one county to the other, without the approbation of the people of the two counties. The design of the constitution is to prohibit things, not names. It is to forbid results and effects, and not the form of expression to be used in accomplishing them. A substance was sought after, and not a shadow. A real power was designed to be reserved to the people, and not the mere hope of a right.

We were asked if the legislature may not abolish a county organization, and then, from very necessity, attach the disorganized territory to another county, or form a new one? We answer unhesitatingly, that the legislature may not destroy a county, if the object, or necessary result, is to accomplish an unconstitutional purpose. Should the time ever arrive when any county in this State becomes entirely depopulated, then the legislature might repeal the law of its organization ; or, should we acquire new territory, from that, a new county might well be organized by the legislature alone, but to disturb county lines, already established, without a vote of the people, would be doing that which the constitution has forbidden in terms which, it seems to us, cannot be mistaken. The legislature cannot do indirectly, that which it is forbidden to do directly. This is a rule dictated by reason, and supported by the highest authority. Craig v. The State of Missouri, 4 Peters, 410. To be sure, it should not be applied, unless the end proposed to,be accomplished is manifestly the very thing forbidden, but when that is clearly the case, no circumlocution can give validity to the forbidden act. Should this act be sustained, let it once be established, that the legislature may destroy old counties as it pleases, and from their territory create new ones, and every conceivable change of county lines may be effected, and that too, without any reference to a vote of the people, if the new county is of the requisite size.

The same legislature which passed this a'ct, also passed an act creating the county of Kankakee, out of territory to be taken from the counties of Will and Iroquois, and whence the necessity of submitting that act to a vote of the people of those counties, when, if this act is constitutional, the same thing could have been accomplished by abolishing the counties of Will and Iroquois, and then from their territory oganizing three new counties, giving to each precisely the same boundaries which they now have. So, too, in the same way might the county of Oregon have been created out of territory taken from the counties of Morgan, Sangamon and Macoupin, without a vote of the.people of those counties. Nothing was requisite but to abolish those three counties and to create four new ones, and the desired end would be accomplished at once, and yet this same legislature, no doubt, in obedience to the provisions of the constitution, thought proper to submit the act creating the county of Oregon, to a separate vote of the people of the three counties, from which the territory of the new county was to be taken. Suppose the legislature had passed an act, simply providing that the territory of the county of Saline, should thereafter be attached to, and form a part of the county of Gallatin. Would it be pretended that such a law would be valid, without a vote of the people, simply because it transferred the whole county, instead of a part of it ?

The object and effect of the law under consideration, is precisely the same as the one supposed. What possible difference is there, whether the two counties be abolished or annihilated, and of the same territory a new one formed, or one county is attached to the other? If the legislature cannot do the one, then it is prohibited from doing the other. No change of county lines can be made without, in effect, abolishing the old county organization, and creating a new one, so far as the territory transferred is concerned; and no additional authority is acquired, by affecting to do indirectly, what they must of necessity do, substantially, in all cases of the kind. This right of abolition or annihilation of county organizations, and the consequent results, if admitted as claimed in this case, would utterly destroy every provision of the constitution, the object of which, is to secure to the people interested, a direct control over legislative action affecting existing county organizations. If the constitution is still to be regarded as an instrument of that sacred character which has hitherto always been attributed to all American constitutions,— if it is still to be considered as a law to the law makers, as well as to the citizens, a law which cannot be compassed or evaded, then, it is our duty to see that its material aud substantial provisions are not frittered away by establishing a rule, which will in every instance, allow its provisions to be disregarded, which will permit the legislature to do the precise and identical thing which the constitution, in most express and unequivocal terms, has declared shall not be done, without the vote of the people interested.

There is, no doubt, a certain degree of plausibility in the course of argument, by which this law is attempted to be sustained. It is truly said that the constitution is a restraint upon legislative powers, and there is no doubt but this law might be passed, unless prohibited by the constitution. From this it is argued that, as there is no express prohibition to abolish counties, it is within the power of the legislature to do so, and from necessity, there must be authority to organize the disorganized territory. But this reasoning is more specious than sound. As we have before seen, it leads inevitably to the overthrow of the paramount law of the State. No means can be constitutional, which effect an unconstitutional object. While we would not extend the prohibitions of the constitution, so as to embrace measures and objects, not manifestly and clearly within the design of its framers, yet where that is undeniably the case, then by no means whatever, sho.uld it be allowed to be evaded. We cannot doubt that the objects designed to be accomplished by this act, cannot be effected without the affirmative vote of the people of the counties of Saline and Gallatin; and for the reason that no provision is made for such a vote, we think it is in derogation of the constitution, and that it must continue inoperative, till an election shall have been provided for by law, and an affirmative vote obtained from the voters of each of the counties affected by the law.

The act in question, not only attempts to unite the county of Saline with the county of Gallatin, without the constitutional sanction of the people, but in effect, it also provides for the change of the county seat of Gallatin county, without the vote provided for in the fifth section of the seventh article of the constitution. This section, which I have quoted, forbids the removal of a county seat without a vote of the people of the county. This law, practically undertakes to remove a county seat by legislative action alone. For the reason, then, that no provision is made for taking a vote of the people upon the removal of the county seat from Shawneetown to Equality, the law is also incomplete. The act in question, remaining inoperative as it does, the old county organizations continue, and it is the duty of the Circuit Judge to hold Circuit Courts in both counties, the same as if it had not been passed, and a peremptory mandamus must be awarded according to the agreed case.

Mandamus awarded.


text:
    James Dufield, Appellant, v. Elisha A. Cross, Appellee.
    APPEAL FROM McHEHRY.
    It ¡3 erroneous to instruct a jury in such language, as assumes that a settlement can only be proved by the admissions of the plaintiff in the suit.
    The declarations of a party are admissible in evidence against him, and are to be received and considered by the jury. Although such declarations are not made deliberately, the jury must determine what weight ¡-ball be given them.
    The right of action for services rendered by a minor, is in the parent or guardian.
    This action was brought in the McIIenry Circuit Court, by Cross against Dufield; and was tried before Henderson, Judge, and a jury, at April term, 1850; and resulted in a verdict and judgment in favor of Cross, for the sum of §160.00.
    The facts necessary to a full understanding of the opinion of the Court, are set forth in it.
    T. L. Dickey and Strode & McClure, for Appellant.
    Loop & Hurlbut, for Appellee.
   Treat, C. J.

This was an action of assumpsit for work and labor. It appeared from the evidence, that, in 1838, the plaintiff was placed by his mother with the defendant, to remain until he should become of age. He continued with the defendant until the spring of 1849, when he received a horse of the value of $140, and went, to Wisconsin. He afterwards returned, and performed some further service. He became of age in the latter part of 1848. While with the defendant, he was treated as a member of his family. The plaintiff introduced evidence of the value of Ms services, as well before, as after he attained Ms majority. The defendant proved some payments, and also admissions of the plaintiff, made on several occasions and under different circumstances, to the effect that a settlement had taken place, and that he was to wait on the defendant for the balance found due him until the falVof 1851. At the request of the plaintiff, the Court instructed the jury, “that unless they believed from the evidence, that the plaintiff in this suit deliberately and distinctly admitted, that he had settled up with defendant all matters involved in this case, which settlement was agreed at the time to be in full of all demands, then the plaintiff is not cut off from recovering for his work and labor, not included in the settlement, such amount as the jury considers proved.”

, The instruction was erroneous, and calculated to mislead the jury. It is subject to several exceptions. It assumed that a settlement could only be proved by the admissions of the plaintiff. But as the evidence tending to show a settlement consisted mainly of the declarations of the plaintiff, this branch of the instruction may not have prejudiced the defendant. Again: the instruction applied an improper test to the-admissions. It in effect wholly excluded them from the jury, unless they were deliberately and distinctly made. The declarations of a party are admissible in evidence against him, on the principle, that what he says against his interest may be considered as true. They are, indeed, often of an inconclusive and unsatisfactory character, depending very much on the circumstances under which they are made. But they are to be received and considered by the jury, in connection with the other evidence in the case. It is the province of the jury to determine what weight shall be given them. If the jury are satisfied that the declarations are true, then they are bound to regard the facts as proved, and decide accordingly. The true test in this case was whether the admissions satisfied the minds of the jury that a settlement had been made, and not whether the admissions themselves were made in a particular manner. There is another objection to the instruction. It left the jury at liberty, in the event they came to the conclusion than there had been no final settlement, to take into consideration the services of the plaintiff while a minor. The plaintiff had no legal claim to compensation for those services. The right of action, if any existed, was in the mother, who was entitled to the labor of her son, and who put Mm in the service of the defendant. From the amount of the verdict, it is very evident that something was allowed the plaintiff on account of services performed before he was of fall age. The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    James Dunlap, Appellant, v. David A. Smith, et al., Assignees of the Bank of Illinois, Appellees.
    APPEAL FROM SANGAMON.
    A debtor of the Bank of Illinois is authorized to discharge bis indebtedness in the notes and certificates of the Bank; unless it shall appear, that the indebtedness arose as a subscription for bank stock.
    The term stock note has not a technical meaning.
    The facts of this case, and the judgment rendered upon it, will be found, ante page 184.
    After the decision in this Court had been returned to the Sangamon Circuit, Dunlap entered his motion, that satisfaction of said judgment be entered, to the extent of twenty-eight thousand one hundred and twenty-seven dollars and thirty-five cents, or such part thereof as he may be entitled to a credit for, and in support of said motion, filed an agreement of the parties, made since the rendition of said judgment; whereupon the plaintiff, in resistance of said motion, produced in evidence the record of said judgment, with the previous agreed case (see ante 184) and all the papers and entries in the cause; and after argument, the Circuit Court, Davis, Judge, presiding, at March term, 1851, overruled the motion and gave costs against Dunlap. And thereupon, on motion of Dunlap, an appeal was granted. The bill of exceptions taken oh the motion, in addition to the agreed case, (ante 184,) states, that it is agreed that since the rendition of said judgment, to wit, on the 13th day of January, 1851, the plaintiffs have received on account of said judgment, of and from the defendant, in the notes of the Bank of Illinois, §10,311.00, and in the certificates of said Bank, in substance and form as provided in the sixteenth section of the act concerning said Bank, passed February 15th, 1843, $17,816.35; and that said defendant (Dunlap) claims the right to pay said judgment in the notes and certificates of said Bank, at par, which claim the plaintiffs deny; that said defendant shall enter a motion in the Court aforesaid, to have satisfaction of said judgment entered, to the extent of the notes and certificates received, or either of them as aforesaid; that when the Court decides said motion, the losing party may take the case to the Supreme Court, sitting at Ottawa in June [then] next, by writ of error or appeal, without bond or security; that if the Supreme Court decide that said motion should be sustained, so it is to be; and if it decide that said motion should be overruled, the said plaintiffs are to hold said' notes and certificates, subject to the order of said defendant.
    S. A. Douglas, S. T. Logax & J. A. MoCLEEtíAtrn, for Appellant.
    A. Listcoln', for Appellees.
   Trumbull, J.

This same case came before the Court at its last term, at Springfield, and the amount of Dunlap’s liability was fixed by the decision made at that time.

He now claims the right to discharge the judgment then entered against him in the notes and certificates of the Bank, which is the only question now involved in the case. In determining this question, it becomes important to look to the nature and origin of Dunlap’s indebtedness, and also to the laws in force at the time it was incurred.

On the 22d of December, 1842, the Legislature passed “An act in relation to the State Bank of Illinois and Bank of Illi-nois,” which delares, “That all debts and demands due, by note or otherwise, unto the president, directors, and company of the Bank of Illinois, or to the State Bank of Illinois, or that may hereafter become due unto cither of said banks, may after or before suit brought thereon, be discharged and paid in the notes and bills of said banks respectively, to which said debt or demand may be due, whether the same be in the possession of said bank or banks, or assigned or transferred to any corporation, person or persons.”

The contract which was the foundation of the judgment against Dunlap, bore date February 20, 1848, nearly two months after the foregoing act was passed; and he would clearly have the right to discharge it according to the provisions of that act, unless there was something in the character of the contract, to make it an exception to the general provisions of the law. Such it is insisted is the case, from, the fact that the contract is described in the transfer of the assets of the bank, as a stock note. All the information we have upon that subject, is what is contained in the agreed ease upon which the judgment was rendered. That agreement states, that the president, directors, and company of the Bank of Illinois, on the tenth day of April, 1845, pursuant to an act of the Legislature passed “Feb. 28, 1845, under their corporate seal and the signature of their president [the said Dunlap] and cashier, assigned said note as a stock note ” to the assignees of said bank. Admitting that by the assignment thus made, Dunlap is estopped from denying that the note was a stock note, and the question arises, How does it change his right to discharge the amount due upon it, in the notes of the bank?

It will be borne in mind, that the record is wholly silent as to the consideration of the note, or the circumstances under which it was given. All we know is, that it was assigned as a stock note. The record does not even contain a copy of the note, and whether it was given on account of an original subscription for stock, or on a purchase of stock which the bank may have been authorized to sell, does not appear.

If it could be gathered from the record that it was given on account of a subscription to the stock of the bank, made previous to the passage of the law of Dec. 22, 1842, and upon the faith of which bills had been issued and liabilities incurred by the bank, which still remain unpaid, we should have no hesitation in holding that it was not a debt or demand within the purview of the act of Dec. 22, 1842, and which the debtor could discharge in the notes of the bank. The stock of a bank paid in and subscribed for, constitutes a fund for the payment of the liabilities of the bank. To allow a stockholder, who at the time of his subscription was required by the charter of the bank to pay for his stock in specie, subsequently to discharge that subscription, after the bank had become insolvent, in its depreciated bills, would be equivalent to allowing him to withdraw a part of that fund upon the faith of which the bills had been issued, and would be manifestly unjust, as well to stockholders who were not in debt for their subscriptions, as to the creditors of the bank. To such a case much of the reasoning in the case of King v. Elliott, 5 Smedes & Marshall, 428, would be applicable.

The record before us, however, discloses no such case, and it is.nof for the Court to make a case for the plaintiff. The term stock note has no technical meaning, and may as well apply to a note given on the sale of stock which the bank had purchased or taken in the payment of doubtful debts, as to a note given on account of an original subscription to stock.

Here the record not only fails to show, that the consideration of the note was an indebtedness for stock, existing prior to the passage of the act of Dec. 22, 1842; but in the absence of all evidence, the presumption is, that the consideration was a liability incurred for the first time, at the date of the note. If so, the law under which the contract was made became part of it, and Dunlap’s right to discharge it according to the provisions of that law, is unquestionable.

On the 25th day of February, 1843, five days after the date of the note given by Dunlap, and before it became due, an act was passed for putting the Bank of Illinois into liquidation; which provides, among other things, for paying out the specie of the hank then on hand pro rata, among its creditors, and for issuing certificates for the balances due; which certificates, the act declares, shall be received in payment for any debt due or to become due the hank. By this act, certificates are placed upon the same footing as notes in the payment of debts; in fact there is now no difference between them, certificates having the same market value as notes.

The judgment against Dunlap comes directly within the terms of the acts authorizing the debtors of the bank to discharge their liabilities in its notes and certificates; and as has been already shown, there is nothing in the nature of the judgment or the contract upon which it is founded, as disclosed by the record, to. distinguish it, so far as relates to the mode of payment, from the ordinary debts due the bank.

The case of King v. Elliott is distinguishable from this, in several particulars. In that case, the delinquent stockholder was garnisheed by a creditor of the bank, before the passage of the act providing that garnishees who were indebted to it should have the right to discharge their indebtedness in the notes of the bank; moreover, it did not appear in that ease, that the garnishee held the notes of the bank, when he was garnisheed; and as the claim was then transferred by law, no offset subsequently acquired could avail him.

It is to be regretted that, in so important a case as this, the parties have not thought proper to bring before the Court the whole transaction out of which Dunlap’s indebtedness arose.

Had this been done, it is possible that the Court might be called upon to pronounce a different judgment; but as the case is presented in the record, by which alone the Court must be governed,

Dunlap’s right to discharge the judgment in the notes and certificates of the bank, is clear.

The judgment of the Circuit Court is reversed, and the cause.remanded.

Judgment reversed,.


text:
    The Trustees of the Illinois and Michigan Canal et al., Pltffs in Error, v. The City of Chicago, Defts in Error.
    ERROR TO COOK.
    „It is error, in a proceeding for opening a street in the city of Chicago, to include the ■ costs in the assessment.
    The real estate, belonging to the Trustees of the Illinois and Michigan Canal, is liable to assessments, for opening streets and other improvements of a like character.
    Assessments for improvements, are not a charge upon an estate -which reduces its value, and are distinguishable from taxes
    The State cannot now be considered as the owner of the Canal lands, the trustees • are invested with the legal title, but the State has such a beneficial interest in the Canal and Canal property, as may give her the right to insist that the trustees shall faithfully execute the purposes of the trust.
    This was a proceeding by petition, on the part of the city of' Chicago, for the purpose of widening an alley, into a street eighty feet in width. The prayer of the petition was allowed and commissioners were named to examine and report upon the necessity of the appropriation, the value of the land to be condemned, and. the injury to the owner or owners thereof, and to assess and apportion the damages and expenses of the improvement on real estate, which they might deem benefited thereby, apportioning injury and benefits, &c. A portion of the property claimed by the Canal Trustees, was included in the assessment of the commissioners.
    At the May term, 1849, Dickey, Judge, presiding, the report of the commissioners, recommending the enlargement of the alley, and including the assessments for improvements, &c., was accepted, and the order for enlarging the street was entered of record. The costs of assessing, &c., were included in the report, which was confirmed. Several errors were assigned, which are not noticed in the opinion of the Court.
    The errors discussed by the Court are, that the costs of the proceeding, consisting of attorneys’, clerks’ fees, &c., were assessed upon the property in violation of law. The Canal Trustees assign for error, that the canal lots and lands are by law exempt from taxes and assessments, and the proceeding against them was therefore illegal and void.
    I. H. Arnold, for Pltffs in Error,
    S. S. Hates, for Deft in Error.
    We concede that the judgment of the Court below must be reversed, for the reason that the costs of the proceeding are included with the expenses of the improvement, that being the point decided in Morris v. Chicago, 11 Illinois R., 650.
    We desire, however,"a decision on the question of the liability of canal lands to be assessed for local improvements.
    The general power is given the city to assess on all the property benefited. Chicago Incorporation Act, 1837, §38.
    The Canal Trustees are a corporation. The property of corporations is included, though not specially mentioned. 11 Wheat. B., 392; 15 Johns., 382.
    The canal lands lying between Horth and South Water streets, •are expressly exempted, showing the intention to charge the rest. Act ’37, §38. ■
    The words “ of every description,” give no greater extent to the word “taxation” in §13, Canal Law, ’43, than it would have without. See B. S., p. 27, do. 437.
    This is only an exemption from taxes, which are burdens imposed by legislative authority for the public good, not from assessments, made on real estate, of the value added to it by an improvement for local convenience and advantage. 3 Tomlin’s Law Dic. Tit. Tax; Matter of Corporation of New York, 11 Johns., 77; Bleecker v. Ballou, 3 Wend., 263; Sharp et al. v. Speir, 4 Hill’s R., 76; Northern Liberties v. St. John’s Church, 13 Penn. State R., 105; Ross v. Mayor of New York, 3 Wend., 333.
    There is nothing in the nature and objects of the incorporation, in the fact that the State is remotely interested, to distinguish the present case. The fee simple is not in the State.
    It does not alter the case, that the State has a reversionary interest, instance escheats, or that she may pay off the debt and take the canal, instance any railroad charter, where this power is reserved, or (if it were so) that the means of the State may be lessened by the assessment, instance where a State is a joint owner in a bank, the property of which is taxable.
    This is land belonging to a commercial corporation. Canal Law, ’43, §16. As such, it is not covered by the prerogative of the State, though the State be the beneficial owner. McCulloch v. State of Maryland, 4 Wheaton, 316; Bank U. S. v. Planter’s Bank of Georgia, 9 Wheaton, 904; Bank S. Carolina v. Gibbs, 3 McCord, 377.
   Treat, C. J.

This proceeding was instituted for the purpose of opening a street in the city of Chicago. Commissioners were appointed to report as to the necessity of the measure, and the value of the ground to be appropriated; and alsp to assess and apportion the expenses of the improvement, against the real estate to be benefited thereby. They reported in favor of opening the street, and included in their assessment of the expenses, the costs of the proceeding, amounting to $120. The report was approved. This Court held, in the case of Morris v. The City of Chicago, 11 Illinois, 650, that jt was error to include the costs of the proceeding in the assessment. For this error, the judgment must be reversed.

The case presents the question, whether the real estate belonging to the trustees of the Hlinois and Michigan Canal is liable to assessments of this character, and, as both parties are desirous that the question may be settled, I shall proceed briefly to state the conclusions of the Court on the subject. The 13th section of the act, by virtue of which the canal lands were granted to the trustees, declares, that “the said lands and lots shall be exempt from taxation of every description, by and under the laws of this State, until after the same shall have been sold and conveyed by the said trustees, as aforesaid.” It is contended, that the assessment in question, falls within this exemption. In our opinion, the exemption must be held to apply only to taxes levied for state, county and municipal purposes. A tax is imposed for some general or public object. It is an exaction made for the purpose of carrying on the government .directly, or through the medium of municipal corporations, which are but parts of the machinery employed in conducting the operations of the government. It is a charge on an estate that lessens its value. In the projjortion in which the owner is required to pay, is his pecuniary ability diminished. This is the sense in which the term taxation is used and understood. A reference to two or three adjudged cases will not be inappropriate. In the matter of the Mayor of New York, 11 Johnson, 77, an exemption in favor of churches from being “taxed by any law of the State,” was held to refer only to general taxes for the benefit of a town, comity, or the State at large, and not to extend to special assessments on the property of churches, for benefits resulting thereto by the opening, enlarging, or improving of streets. In Bleecker v. Ballou, 3 Wendell, 263, a covenant on the part of a lessee to pay “ all taxes” on the demised premises, was held not to embrace a special assessment for pitching and paving a street in front of the property. In the case of the Northern Liberties v. St. John’s church, 13 Penn. State Eep., 104, a general law exempting churches “from all and every county, road, city, and school tax,” was construed not to extend to an assessment for laying water pipes along the grounds of a church deemed to be benefited thereby. Those cases cannot be distinguished in principle from the one before us. The assessment in question has none of the distinctive features óf a tax. It is imposed for a special purpose, and not for a general or pmblic object. It is not a charge on the estate which reduces it in value. It substraéis nothing from the means or resources of the canal. The improvement is made for the convenience of a particular district, and the property there situated is required to bear the expense in the proportion in which it is benefited. The assessment is precisely in the ratio of the advantages, accruing to the property in consequence of the improvement. It is but an equivalent or compensation for the increased value the property derives from the opening of the street.

It is insisted, however, that the canal lands are to be regarded as the property of the state, and therefore exempt from the payment of the assessment. This position cannot be maintained. The state, for a valuable consideration, has granted these lands to the board of trustees. The latter are invested with the legal title to the lands, with the full power to alien and convey the same, and apply the proceeds to the payment of the loan of $1,600,000, made for the purpose of completing the canal, and, when that is discharged, in the extinguishment of the debts previously incurred in the construction of the canal. The State cannot now be considered as the owner of the lands. She cannot resume the grant, without the payment of the indebtedness, for which the canal and its resources stand pledged. Until this indebtedness is discharged, the property is beyond the control of the State. She has, indeed, a beneficial interest in the canal and canal property, and in its management by the trustees; and that interest may give her the right to insist that the trustees shall faithfully carry out the purposes of the trust. But her rights of property are subordinate to those of the trustees, and the subscribers to the loan.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    William Hudson, Appellant, v. Charles M. Dickinson, Appellee.
    APPEAL PROM LEE.
    A party wishing to raise an issue on the assignment of a note, in a trial before a justice of the peace, must file an affidavit.
    This action was commenced before a justice of the peace, and appealed to the Circuit, at the trial in the Circuit Court, before Sheldon, Judge, at September term, 1850, a jury being waived, the appellee, plaintiff below, offered, an assigned note in evidence, which was objected to, on the ground that it was assigned after it became due, and because it was a partnership transaction, for which one of the partners had given a receipt, which would defeat the assignment.
    Glover & Cook, for Appellant.
    T. L. Dickey, for Appellee.
   Caton, J.

All that is necessary to be decided in this case, was settled in the case of Archer v. Bogue. There it was decided that the act of 2d March, 1839, entitled “An ad to amend the several laws in relation to practice in courts of law,” is applicable to proceedings before justices of the peace. In that case as in this, the suit was brought by the assignee of a promissory note against the maker, and there was no affidavit filed, questioning the genuineness of the assignment. This Court said, Upon the first assignment óf error, we do not deem it necessary to look into the testimony admitted, relative to the note, as the question of assignment was not in issue.” If no issue is formed upon the assignment, without the affidavit, of course, the evidence offered on that subject was immaterial, and we cannot examine its sufficiency, in this case, any more than the Court could in that. It was the duty of the defendant, if he intended to'dispute the as-! signment, to notify that fact to the Court and the opposite party, in the mode pointed out by the statute. In the absence of the affidavit, the plaintiff would not have been justified in subpoenaing witnesses to-prove the assignment, and he is protected from a surprise at the trial by evidence, tending to question the assignment. The Circuit Court decided correctly, and its judgment is affirmed.

Judgment affirmed.