text:
    Charles Ballance, Appellant, v. Edward P. Tesson et al., Appellees.
    APPEAL FROM PEORIA.
    So much of the land, within the ancient viHage of Peoria, as was confirmed to the-settlers and inhabitants by the act of Congress, of 3 823, was withdrawn from sale, and no title, as against the claimants and then' legal representatives, could he acquired by pre-emption.
    The land covered by the French Claims, at Peoria, were taxable in 1845.
    The title to the French Claims, at Peoria, was vested in the claimants on the approval of the Survey, in September, 3840.

      The Government may make a perfect grant, without the issuing of a patent or any other evidence of title.
    An act of Congress, containing provisions clearly indicating an intention to pass the fee unconditionally and absolutely, operates ipso facto to vest the title in the grantee.
    This was an action of ejectment brought in the Peoria Circuit Court, to recover possession of a lot containing 27,449 square feet and T|7 of a square foot, surveyed and designated as covered by claim number thirty-three, in the south west fractional quarter of section nine, in township eight north, of range eight east of the fourth principal meridian, Illinois, according to the survey approved first of September, 1840, by the Surveyor of the Public Lands, in the States of Illinois and Missouri. At the March term 1851, Ballance claiming to be in possession of the premises, was admitted to defend. At May teim, 1851, the cause was heard before Kellogg, Judge, and a jury, and resulted in a verdict and judgment against Ballance.
    The statement of the evidence offered is fully set out in the opinion of the Court.
    C. Ballance, for himself.
    N. H. Purple & 0. Peters, for Appellees.
   Treat, C. J.

This was an action of ejectment brought by Tesson and Rankin against Ballance, to recover a lot of ground in the city of Peoria, covered by French claim thirty-three. On the trial, the plaintiff introduced the. following evidence : 1. The act of Congress, of the 15th of May, 1820, entitled, “ An act for the relief of the inhabitants of the village of Peoria,- in the State of Illinois.” 2. The act of Congress of the third of March, 1823, entitled, “An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois.” These two acts are set forth at large in the case of Ballance v. McFadden, reported ante 317. 3. A patent from the United States, dated the 29th of June, 1846. It recited, that the claim of Antoine Roi, was enteredtin the report of the register of the Land Office, at Edwardsville, made on the 10th of November, 1820, pursuant .to the provisions of the act-of the 15th of May, 1820, as number thirty-three; that Roi was the settler and inhabitant, within, the purview of the act of the 3rd of' March, 1823; and it then proceeded; to grant the lot, as designated and surveyed according to the 2d section of that act, to “ the legal representatives of the said Antoine Roi, and to their heirs.” 4. The deposition of Madeline Glodon, showing that Antoine Roi died about thirty years ago, leaving Mary Roi, since intermarried with Toussant Gendron, his only descendant. 5. Á power of attorney, from Gendron and wife, to Narcisse Pensoneau, dated the 3rd of March, 18.49, authorizing him to sell and convey the lot in question. 6. A deed from Gendron and wife, by their attorney, in fact, Pensoneau, to the plaintiffs, dated the 20th of June, 1849, for the same premises. 7. A certified copy of the plat and survey of the French claims, in Peoria, approved the 1st of September, 1840.

The defendant introduced the following evidence. I. A certificate of the register of the Land Office, at Quincy, showing that the defendant, on the 28th of July, 1832, established a right of pre-emption to the south west quarter of section nine, township eight north, of range eight east, which tract embraces the premises in controversy. 2. A certificate of the same officer, showing that the defendant entered the quarter section, on the 29th of November, 1837. 3. A patent from the United States to the defendant, for the same tract, dated the 24th of January, 1838, and containing this clause: “ subject, however, to the right of any and all persons claiming under the act of Congress of 3rd of March, 1823, entitled, “, An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois.”

He then offered in evidence, a judgment of the Peoria Circuit Court, of the May term, 1846, against certain real estate on which taxes were due and unpaid, for the year 1845, amongst which were 105 acres of the quarter section before described ; also, a precept issued on the judgment, directed to the Sheriff of Peoria county, dated the 10th of June, 1846; and a deed from the Sheriff to the defendant, dated the 10th of November, 1850, showing a sale to the defendant, on the 16th of June, 1846, of nine acres off’ of the east side of the 105 acres, and including the premises in dispute, for the amount of the taxes and costs. This evidence was rejected.

The claim in question was thus described in the report of the register of the Land Office, at Edwardsville. “No. 33. Antoine Roi, claims a lot in Peoria, containing about one half of an arpent of land, and bounded northwardly by a lot of Charles Le Donb, eastwardly by a street separating it from the Illinois river, southwardly by unoccupied land, and westwardly by a street.”

The plaintiffs had a verdict, and judgment for the premises demanded.

Has the defendant the better legal title to the premises in controvesy ? If so, he must prevail in the action of ejectment. The equities of the parties cannot be adjusted in this proceeding. His entry, in 1837, was not in terms made subject to any rights acquired under the act of Congress of the 3d of March, 1823. The condition to that effect in the patent issued to him in 1838, appears to have been then for the first time imposed. The persons whose claims were confirmed by the act of 1823, did not acquire the legal title anterior to the approval of the survey in 1840. It was not the design of Congress to vest the title absolutely in the claimants, before the survey of the claims should be made and approved. The defendant, therefore, has the elder legal title, unless that part of the quarter section covered by the confirmed claims, was in effect appropriated, or reserved from sale, by the act of 1823. We are inclined to the opinion, that so much of the land within the ancient village of Peoria, as was confirmed to the settlers and inhabitants by the act of 1823, was, by the terms of that act, necessarily withdrawn from sale, or further appropriation; and consequently, that the defendant acquired no title as against the claimants, or their legal representatives, by virtue of his pre-emption and subsequent entry. The lots claimed were, by the provisions of that act, set apart and appropriated to a particular purpose. They were thereby severed from the mass of the public lands. They ceased to be the subject matter of public sale, or private entry. The act of the 15th of May, 1820, required all persons claiming lots in the village of Peoria, to give notice of their claims to the register of the land office at Edwardsville by the 1st of October thereafter; and it was made the duty of the register to report to the secretary of the treasury, the claims so presented, and the substance of the evidence adduced in their support; and his report was to be laid before Congress for consideration. Various claims were presented to the register, and by him reported in detail. The lots claimed were specifically described, so that their precise locality could be ascertained by a survey. The size of the lots and their boundaries were generally given. Such was the case with the claim in question. The act of the 3d of Mareh, 1823, with certain qualifications and restrictions not material to be now noticed, confirmed the claims contained in the report of the register ; and directed the surveyor general uto cause a survey to be made of the several lots, and to designate on a plat thereof the lot set apart and confirmed to each claimant, and forward the same to the secretary of the treasury ;” who was required to “ cause patents to be issued to such claimants as in other cases.” This action of Congress clearly amounted to an appropriation of the lots claimed by the settlers. It was a reservation of them from sale, or any further appropriation, by necessary implication. The lots were granted to the claimants. Nothing remained to be done to render the grant operative and effectual but the survey. And on the approval of the survey, the title eo instanii passed to the claimants, or to their legal representatives. In. the interval of time between the passage of the confirmatory act, and the survey of the lots pursuant to its provisions, no person could acquire a valid title as against the claimants. The claims confirmed were not of a floating or uncertain character. A survey alone was required to give them a fixed and determinate locality; and the means of making the survey were contained in the confirmatory act, and in the report of the register to which it referred, and on -which it was based. The claimants were to have no further agency in the location of their claims. They had already given them a definite location, by their improvements, and by the description of them in their notice of claims- to the register. But it was insisted on the argument, that there was no such reservation or appropriation of these lots, as to be binding on subsequent purchases from the government; and the case of Menard’s Heirs v. Massey, 8 Howard, 293, was relied on as supporting the position. In that case, Cerre, in 1799, obtained an unsurveyed concession from the Lieutenant Governor of Hpper Louisiana, for thirty-five hundred and twenty-eight arpens of land, 11 on the big spring of the river Maramee, so as to include said spring;” and, in 1806, he exhibited his claim for the same premises to the board of commissioners for confirmation. An act of Congress of the 3d of March, 1811, declared that “ no tract of land shall be offered for sale, the claim to which has been, in due time, and according to law, presented to the recorder of land titles in the District of Louisiana, and filed in his office, for the purpose of being investigated by the commissioners appointed for ascertaining the right of persons claiming lands in the Territory of Louisiana.” The township including the big spring of the river Maramee,” was offered for sale in 1823, and sold. In 1833, the commissioners reported that the claim of Oerre ought to be confirmed; and, in 1836, Congress confirmed the claim according to the report. A controversy then arose between the representatives of the claimant and the purchasers at the sale. The Court held that the purchasers had the superior title; and in answer to the position, that the land was reserved from sale by the act of 1811, said •„ “ In reserving lands from sale, it was necessary to know where they were situated, and how far they interfered with the public surveys. Either the President, or some other officer, must have had the power to designate the lands as those adjoining to salt springs and lead mines; or it must have appeared in some public office appertaining to the land Department what the boundaries of reserved lands were; and if it did not appear, no notice of the claim could be taken by the surveyors, nor by the registers and receivers when making sales. This was a conclusion that has from necessity been acted on at the land offices; and as Cerre’s claim was not surveyed before the confirmation took place, no boundaries of his tract could be recognized when the public surveys were made and the lands sold. He claimed no tract of land. The laws refer to specific tracts that are claimed ; it is not material whether the boundaries are proper, and according to the concession, or the claim be just or otherwise, so that the tract claimed be certain. This was also decided in the cases just cited. Certainly, a mere floating claim, founded on a concession that was ordered to be located by survey, and where no survey or location had been made, was not protected by the act of 1811. An actual survey is not indispensable; but boundaries must appear, in some form, from the notice of claim, and the accompanying evidences filed with the recorder. E¡ from these, the tract of land could not be laid down on the township surveys, then the land could not be reserved from sale; although by the concession, and by the notice, a particular spot, ( as the big spring of the Maramee,) was referred to in general terms as the place where the land should lie.” That case was, without doubt, rightly decided. The land claimed was described in so loose and indefinite a manner, that it could not be considered as withheld from sale. A surveyor could not have located it from the description given in the concession, or in the claim afterwards presented to the commissioners. It required some further act of the party, to give the tract claimed a definite form and location. But the case was widely different with these French claims. The lots were situated within the limits of the village of Peoria, a well known locality. They had been occupied and improved by the claimants. Their extent and boundaries were stated, from which the exterior lines could be easily ascertained. There could be but little difficulty in determining their precise locality.

Was the land covered by their claims subject to taxation for the year 1845 ? This presents the question, when the title vested in the claimants. We answer, on the approval of the survey in September, 1840. The grant then became operative and complete. The confirmees, or their legal representatives, were from that time invested with the full legal estate in the lots as surveyed. The issuing of patents was not necessary to transfer the titles. It had already passed out of the United States. The patents are but evidence of title in the patentees. The law is well settled, that the government may make a perfect grant directly, and without the issuing of a patent, or any other evidence of title. An act of Congress, containing provisions clearly indicating an intention to pass the fee unconditionally and absolutely, operates ipso facto to vest the title in the grantee. A reference to one or two adjudged cases in the Supreme Court of the United States, upon grants made by the government, will fully establish this position. In Geignon’s Lessee v. Astor, 2 Howard, 319, it was decided that an act of Congress requiring patents to be issued to persons, “whose claims are contained in the report transmitted to the secretary of the treasury, and-which have been reported favorably on by said commissioners; and such persons are hereby confirmed in their claims, agreeably to any surveys heretofore made, or the lines and boundaries established by the claimants respectively,” vested the legal estate presently in the confirmees. The Court said: “but the title became a legal one by its confirmation by the act of Congress of February, 1823, which was equivalent to a patent. It was higher evidence of title, as it was the direct grant of the fee which had been in the United States by the government itself, whereas the patent was only the act of its ministerial officers.” In Strother v. Lucas, 12 Peters, 410, the Court remark: “ That a grant may be made by a law, as well as a patent pursuant to a law, is undoubted; and a confirmation by a law, is as fully to all intents and purposes a grant, as if it contained in terms a grant de novo.” The act of the 3d of March, 1823, provides : “ That there is hereby granted to each of the French and Canadian inhabitants and other settlers in the village of Peoria, in the State of Illinois, whose claims are contained in a report made by the register of the land office at Edwardsville, in pursuance of the act of Congress, approved May the fifteenth, one thousand eight hundred and twenty, and who had settled a lot in the village aforesaid, prior to the first day of January, one thousand eight hundred and thirteen, and who have not hereto - fore received a confirmation of claims, or donation of any tract of land or village lot from the United States, the lot so settled upon and improved.” This portion of the act contains words of present grant, and in connection with the further provision , directing the lots to be surveyed, manifests a clear intention on the part of Congress, to vest the title absolutely in the claimants on the completion of the survey. Patents were required to be issued not for the purpose of transferring the fee, but merely as evidence that the title had passed to the patentees.

The provision in the ordinance of 1818, that all lands sold by the United States within this State, should be exempt from taxation for the term of five years from the sale, did not apply to the claims' in question. The lots were not sold by the United States. They were granted as a bounty to the settlers.

We hold that the premises in controversy were taxable in 1845, and that the Circuit Court erred in excluding the evidence offered by the defendant of the sale for taxes.

The judgment is reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    John Rankin, Appellant, v. Alfred G. Curtenius et al., Appellees.
    APPEAL FROM PEORIA.
    A patent which is not issued to the real claimant, or to the legal representatives of a claimant, of lands in the old village of Peoria, is void.
    A motion to set aside a nonsuit is addressed to the discretion of the Court, and the decision upon it cannot be assigned for error.
    If a plaintiff is dissatisfied with the ruling of the Court, he should submit his case for trial, and take exceptions; and if the finding is against him, he can then test the correctness of the decision.
    The Circuit Court has no authority to nonsuit a plaintiff, or to instruct the jury to find against him as in case of a nonsuit.
    This cause was tried before Kellogg, Judge, and a jury, at the May term, 1851, of the Peoria Circuit Court. The facts connected with this trial are stated by the Court.
    1ST. H. Purple & E. S. Blackwell, for Appellant.
    B. H. Powell & H. 0. Merriman, for Appellees.
   Treat, C. J.

This was an action of ejectment brought by Eankin against Curtenius and others, to recover the possession of a lot in the city of Peoria, covered by French Claim seventy. On the trial, the plaintiff introduced the following evidence: 1. A patent from the United States, dated December 11th, 1849. It recited, that claim seventy was entered in the report of the register of the Land Office at Edwardsville, made pursuant to the act of Congress of the 15th of May, 1820, “in the name of Louis Pensoneau under Augustine Laroche”; that Laroche was the settler within the purview of the act of Congress of the 3d of March, 1823; and it then proceeded to grant the lot, as surveyed under the 2d section of that act, to “the legal representatives of the said Augustine Laroche, and to their heirs.” 2. A deed for the lot from Laroche to Louis Pensoneau, junior, dated the 8th of May, 1819. 3. A deed for the same premises, from Harriet S. Pensoneau and Louis P. Pensoneau to the plaintiff, dated the 1st of May, 1849. 4. Proof that Louis Pensoneau, junior, died about the year 1825, leaving Harriet S. Pensoneau and Louis P. Pensoneau his only heirs at law. 5. A copy of the plat and survey of the French Claims in Peoria, approved 1st of September, 1840. The possession by the defendants was admitted. The defendants read in evidence the report of the register of the Land Office at Bdwardsville, of the 10th of November, 1820, in which the claim in question is thus described: “No. 70. Louis Pensoneau claims a lot in Peoria, bounded northwardly by a lot of Pierre Lavapieurdit Chamberlain, eastwardly by a street separating it from the Illinois River, southwardly by a cross street, and westwardly by a back street.” The Court then, ■at the instance of the defendants, excluded the whole of the evidence from the jury; and the plaintiff submitted to a nonsuit, with leave to move to set the same aside. He afterwards entered .a motion to set the nonsuit aside, which the Court denied, and he now assigns that decision for error. '

The judgment of the Circuit Court must be affirmed on two grounds. First. The evidence was properly excluded. The patent was obnoxious to the same objections, as the one relied on in the cases of Ballance v. McFadden, and Gray v. McFadden, ante. It was not issued to the real claimant of the lot, or to his legal representatives. Louis Pensoneau, the elder, was the sole •claimant; and he claimed the lot in his own right, and not as a representative of Laroche. The confirmation operated exclusively to his benefit, if to the benefit of any one; and the "patent should have been issued to him alone, or to his legal representatives. Laroche never claimed the lot, and, consequently, was not entitled to the patent. If Louis Pensoneau, the younger, claimed the lot by virtue of the conveyance from Laroche, he should have become a claimant before the register. The patent having been issued without authority of law, the evidence did not tend to prove title in the plaintiff, and was, therefore, rightfully excluded.

Second. The refusal of the Court to set aside the nonsuit cannot be assigned for error. The motion was addressed to the discretion of the Court. The plaintiff voluntarily submitted to a nonsuit, and he cannot now complain that the Court refused to set it aside. He might, notwithstanding the ruling of the Court, have submitted the case to the jury. And not until a verdict was returned against him, and a judgment in bar entered thereon, could he call in question the decision of the Court excluding the evidence. Under our practice, the Court has no authority to nonsuit a plaintiff, or to instruct a jury to find against him, as in case of a nonsuit. If he suffers a nonsuit, it is purely vol-notary. Amos v. Sinnott, 4 Scammon, 440. And he cannot afterwards compel the Judge to sign a bill of exceptions. The People v. Browne, 3 Gilman, 87. By submitting to a nonsuit, he is precluded from prosecuting an appeal or writ of error, for the purpose of reviewing the decisions of the Court. Barnes v. Barber, 1 Gilman, 401. The case of Lombard v. Cheever, 3 Gilman, 469, was precisely such a case as this. The plaintiff, on the exclusion of certain evidence, suffered a nonsuit, under permission to move tb set it aside. The motion was afterwards made, and denied. This Court, after citing the case of Barnes v. Barber, said: “Nor does the fact, that the nonsuit was taken with leave to the plaintiff to move to set it aside, vary the result.”

The judgment is affirmed.

Judgment affirmed,.


text:
    John Buchenau, Pltff in Error v. Patrick Horney, Deft in Error.
    ERROR TO LA SALLE. •
    A party cannot rescind a contract of sale and at the same time retain the consideration he has received. If he rescinds, he must return the property purchased, in as good condition as when he received it, unless it is entirely worthless.
    A tender is stricti juris, and must he clearly proved.
    A contract of sale cannot be affirmed as to part and rescinded as to the residue.
    A vendor, if a sale is to be rescinded, must be put in as good a condition as he was before the sale, by a return of the property.
    This was an action of assumpsit brought by plaintiff in error, against defendant in error, at November term, 1849, La Salle Circuit Court, Spring, Judge of the Cook County Court, presiding. The case was submitted to a jury for trial, when a verdict was found for the defendant. A motion for a new trial was overruled.
    Bill of exceptions shows that on the trial, the plaintiff read the note declared on in evidence, and rested his cause.
    The defendant called Edward Fanning, who testified that about the time of the date of the note, defendant and witness were in plaintiff’s bakery. Defendant asked, where he could buy a team; witness stated that plaintiff had one to sell. Plaintiff and defendant then made a bargain for the sale of a team, wagon and harness. Defendant asked witness to draw a note, lie drew one, and defendant refused to sign it; witness drew another which defendant refused to sign, and then witness left. Kotliing was said at the time in relation to the ownership of the property. That the horses had been used by Conrad Dash in his life time, and that said Dash had been in possession of the hoi'ses and wagon up to the time of his death, claiming ownership. The widow of Conrad Dash was the sister of plaintiff. She was insane at the time that plaintiff had acted in selling the property, and in paying the debts and funeral expenses of said Dash.
    Defendant then called Henry Deuehart, who testified that lie.' was present at the giving of the note. That the note was given for a span of horses, wagon- and harness, sold by plaintiff to-defendant. That during the negotiation for the sale, nothing was said about the ownership of the property. This was in the evening. The- next day, at 3 or 4 o’clock in the afternoon, defendant came to the bakery of the plaintiff with the team, and told witness lie had brought back the team. Witness asked “ what team ?” Defendant said, “ the team you sold me.” Witness replied, “ I sold you no team. I have nothing to do with it.” The plaintiff was not present at that time. Defendant then, hitched the team to a post in front of the residence of Mr. Tyler a neighbor of plaintiff. The place where the team was hitched, was as convenient a place to hitch a.team as any in the vicinity of plaintiff’s bakery, and on the evening of that day witness communicated the fact that the team had'been brought back to the plaintiff. Conrad Dash had those horses and wagon in his possession, claiming ownership prior to, and up to the time of his death. On cross-examination, witness stated that when the team was brought back by defendant, as above stated, witness was casually in the bakery of plaintiff, and was not employed by, or authorized to do business for plaintiff, and when the team was - so returned, one of the horses was entirely ruined and spoiled', by having one of his legs corked, and the cord badly cut.
    It was admitted that no letters of administration had been-issued on the estate of Conrad Dash.

      Glover & Cook, for Pltff in Error,
    There was no fraud; there might have been an implied warranty or title, but the plea sets up fraud and not warranty, and .the allegatee and probatee must agree. 24 Wend, 102; 19 John. R., 77; Stanly v. Norris, 4 Blackford, 353; Thompson v. Ashton, 14 J. R., 317; Evertson’s ex. v. Mills, 6 J. R., 138. There was n© return of the property. Norton v. Young, 1 Greenleaf, 30; Coxe, 174; 10 East, 101; 18 Conn., 18; 15 Wend, 638. The plaintiff was not bound to take the property injured in value. 23 Pick., 283; 1 Dcnio, 69.
    E. S. Lelahl, for Deft in Error.
   Treat, C. J.

A party cannot rescind a contract of sale, and at the same time retain the consideration he has received. He cannot affirm the contract as to part, and avoid the residue, but must rescind it in toto. He must put the other party in as good a condition as he was before the sale, by a return of the property purchased. There may be an exception where the subject matter of the sale is entirely worthless. But if it is of any benefit to the seller, the purchaser must restore it before he can put an end to the contract. In this case, the defendant rested his defence solely on the ground that there was fraud in the sale, and that he had disaffirmed the contract by restoring the property. The proof failed to show that it was returned. The defendant called at the plaintiff’s shop and stated to a person, casually there, that he had brought back the team, and then fastened it in the vicinity. He did not declare the purpose for which it was brought back, or for whom it was intended. The plaintiff was soon after informed that the team was there, but he was not apprised of the purpose for which it was left. He was not even notified that the defendant was dissatisfied with his purchase. It does not appear that he ever took charge of .the property, or attempted to exercise the least' control over it. The defendant should have tendered the property to the plaintiff or Ms agent, and at the same time made known his object in so doing. A tender is stricti juris, and oright to be made out clearly. But if there was a tender of the property, the plaintiff was under no obligations to receive it. It was not in the condition in which the defendant received it. He did not offer to place the plaintiff in as good a condition as he was before he parted with the property. One of the horses had in the meantime become valueless. On either ground, the verdict was unauthorized, and a new trial should have been granted.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    The President and Trustees, of the town of Ottawa, Pltffs in Error, v. the County of La Salle.
    ERROR TO LA SALLE.
    The act of 18S8, empowering the president and trustees of incorporated towns to grant licenses, and requiring them to pay all moneys derived from this source into the county treasury, does not repeal special laws previously passed empowering particular corporations to grant licenses, and to retain moneys so obtained for their own use.
    These two acts are seemingly repugnant. They should, if possible, be so construed that the latest one shall not operate as a repeal by implication, of one previously passed.
    A subsequent law, which is general, does not abrogate a former one which is special ; nor docs a general law operate as a repeal of a special law on the same subject passed at the same session.
    An agreement in a case, is a part of the record for all purposes, if for any.
    The County of La Salle sued the Town of Ottawa in assumpsit, to recover for licenses which had been granted for selling liquor, &c.
    It was agreed that the sum of §312,50 had been received by the town from divers persons for such licenses, in the years 1847 and 1848. That this sum had been demanded, and payment thereof refused. That the county of La Salle was organized under the law of 1849, providing for township organization. At May term 1850, T. L. Dickey, Judge, presiding, the cause The President and Trustees of the Town of Ottawa, brought the cause to this Court.
    H. Gr. Cotton and A. Hoes, for. Pltffs in Error.
    E. S. Leland and W. H. L. Wallace, for the County.
   Treat, C. J.

The act of the 12th of February, 1831, authorized towns containing a population of not less than one hundred and fifty inhabitants, to become incorporated for municipal purposes. Corporations formed under this law possessed no power to license groceries. The power remained in the County Courts. The town of Ottawa was incorporated by a special act passed on the 21st of July, 1837. The charter expressly conferred the power to license and regulate groceries within the limits of the corporation. The 7th section of “An act regulating tavern and grocery licenses,” approved March 2nd, 1839, was as follows: “The president and trustees of incorporated towns shall have the exclusive privilege of granting licenses to groceries within their incorporated limits; and all sums of money, which may be received for licenses as aforesaid, shall be paid into the county treasury.” Between the passage of this law and üfct&y 1848, the town of Ottawa received the sum of $312,50, for licenses granted to keep groceries within its limits. The county of La Salle brought an action to recover the money thus received; and the Circuit Court, on the foregoing state of facts, rendered a judgment against the town for the amount thereof. That decision is assigned for error.

The special act incorporating the town of Ottawa conferred upon it the power to license and regulate groceries within its limits, and the right to retain to its own use the moneys received for licenses. This right continued in the corporation, unless it was taken away by the general law of the 2nd of March, 1839. In our opinion, that law should not be so construed as to defeat the right. We think the section before quoted was designed to apply to towns incorporated under the law of 1831, and which possessed no power to license groceries, and not to extend to' corporations created by special acts, on which the power to license groceries had already been conferred. The object was to confer this power on the former class of corporations, and at the same time to retain the money in the county treasury, where it had hitherto been paid. It was simply a transfer of the power to license groceries, from the County Courts to the authorities ©f incorporated towns. The first clause of the section had no application to the town of Ottawa, for it already possessed the same power under a special law. By this construction, there is no

inconsistency between the two laws, bnt the .provisions of both may remain in fall force. To adopt a different construction, would be to hold that the legislature intended to repeal so much of the charters of cities and towns, as conferred authority to grant licenses to keep groceries. There is nothing on the face ■of the law of 1839, except the general language of the 7th section, that indicates any design to interfere with the powers previously granted to such corporations. If there is a repeal, it is by implication only. It is a maxim in the construction of statutes, that the law does not favor a repeal by "implication. The earliest statute continues in force, unless the 'two are clearly inconsistent with, and repugnant to each -other, or -unless in the latest statute, some express notice is taken of the former, plainly indicating an intention to repeal it. And where two acts are seemingly repugnant, they should, if possible, be so construed, that the latter may not operate as a repeal of the former by implication. Dwarris, 674; Bacon’s Ab. Tit. Stat. D.; Bowen v. Lease, 5 Hill, 221; Bruce v. Schuyler, 4 Gilman, 221; Kinney v. Mallory, 3 Alabama, 626; Planter’s Bank v. The State,6 Smedes & Marshall, 628. So, a subsequent statute which is general, does not abrogate a former statute which is particular. Dwarris, 674. And a general law does not operate as a repeal of a special law on the same subject, passed at the same session. 4 Pike, 410. These authorities arc decisive of the question. There is no necessary repugnancy "between the general law and the special act, but they can be 'easily reconciled, and allowed to stand together. Full effect maybe given "to both, without impairing the provisions of either.

The case was heard in the Court below on a'n agreed statement of facts, and no bill of exceptions was taken to the decision of the Court. It is now insisted, that the agreement is not before this Court. A question arising in the case was, at the urgent request of the parties, submitted and decided at the last term, and they then treated the agreement as part of the record. See 11 Illinois, 654. It is now too late to raise the objection. The •agreement is a part of the record 'for all purposes, if for any.

The judgment is reversed»

Judgment reversed.


author: Caton, J.

text:
    John Hamlin, Admr, &c., Pltff in Error, v. Francis P. Kingsley, Deft in Error.
    ERROR TO PEORIA.
    A. gave his note to B., in consideration that B. should pay one-half of a note previously executed by A., for money borrowed for both; whichB. failed to do. B. assigned the note of A. to 0., who knew the facts. Heidi That in a suit by C. against A. on the note, A. might set up the facts in defense.
    This was an action of assumpsit commenced in the Peoria Circuit Court, by William H. Fessenden against Francis P. Kingsley. During the pendency of the action Fessenden diedr and John Hamlin, as Administrator, was substituted as plaintiff in the suit. The action was founded upon a promissory note given by Francis P. to George 0. Kingsley, and by George 0. Kingsley endorsed to Fessenden in his lifetime. The plea of F. P. Kingsley sets out, that at the request of George 0. Kingsley, he borrowed $320. of their sister, for which he gave a note which-George 0. was also to sign, and delivered one-half of the money to George 0. Kingsley, in pursuance of a verbal agreement between the two- brothers, the loan having been made for their mutual benefit. . That a settlement of all accounts between George 0. and Francis P. Kingsley was subsequently had, upon which George 0. Kingsley was paid what was due him. Upon this settlement George 0. agreed to pay off and satisfy the note to the sister; and the note sued on, which was for $160., was given to George 0., for the one-half of the money borrowed which Francis P. retained for his own use. That George 0. refused to pay off or become liable to pay off the note for $320., and therefore the consideration of the note sued on had failed. That the note sued on had been assigned to Fessenden after it became due, and Fessenden had knowledge of this defence.
    At March term, 1850, of the Peoria Circuit Court, Kellogg, Judge, presiding, the cause was submitted to a jury, and a verdict was.found and judgment entered for the defendant below, and the plaintiff in that Court sued out this writ of error.
    Merrimans & Johnson for Pltff in Error.
    0. Peters for Deft in Error.
   Caton, J.

The evidence shows, that about five years previous to the date of the note on which this suit was brought, the defendant had borrowed of his sister three hundred and twenty dollars, for which he gave her his note, and of which he let George 0. Kingsley, the payee in this note, have one-half, upon the agreement that he should pay one-half of the note given to their sister. This he has never done. When the note in controversy was given, the testimony shows that it was agreed between the parties to it, that it should not be paid unless George 0. Kingsley fulfilled his agreement to pay the half of the first note.

While it may not be competent, to show by parol the agreement made at the time of the execution of the last note, for the purpose of proving a want or failure of consideration, or to vary its terms; still, the first transaction shows an advance by the defendant, of one hundred and sixty dollars to the payee of this note; which, with interest thereon, amounts to more than is due upon the note, and might properly be set off against it, unless Fessenden, the plaintiff’s intestate, was a bona fide holder of the note. We think, after a careful examination of the record, that the evidence given at the trial was sufficient to warrant the conclusion to which the jury arrived, that the note was not assigned to Fessenden bona fide, and that so much of the amount which was due from the payee to the maker of the note, on account of the advance of the one hundred and sixty dollars, as was necessary to satisfy this note, was properly allowed as a setoff against it. To detail all of the evidence, both direct and circumstantial, which in our opinion justifies this conclusion, would be both tedious and unprofitable, and we do not think it necessary to •do so.

The judgment is affirmed.

Judgment affirmed^


text:
    William Fisher, Appellant, v. Levi F. Clisbee, Appellee.
    APPEAL FROM MARSHALL.
    Ferrymen, are common carriers, and subject to the same liabilities.
    The rights and liabilities of ferrymen considered.
    This action was tried at March term, 1851, before T. L. Dickey, Judge, and a jury, when a verdict was found and a judgment rendered for the plaintiff". The declaration contains two counts, charging that the defendant was the owner and occupant of a ferry across the Illinois river, at Lacón, that the plaintiff, by his servant, went upon the ferry boat to cross the river, that the boat was so managed and conducted, that plaintiff’s horse, buggy, and harness were precipitated into the river, when the horse was drowned, and the buggy and harness became injured.
    Defendant pleaded the general issue. By the bill of exceptions it app'ears, that the plaintiff proved the licensing of the defendant to keep tke°ferry, &c., and that one Kuhn came upon the boat in February, 1850, with the horse, &c., and while crossing the river the horse became restive, backed off the boat into the river, went under the ice and was drowned, and that the buggy and harness were injured.
    The defendant proved, on his part, that his boat was strong, well built, and decked over, that when Kuhn came on the boat with others, he requested them to take their horses from their carriages. That the owner of the forward team did so. One of the others said his horse was kind, &c., and he did not remove him from the vehicle. That Kuhn did not unloose his horse, nor make any remark. That Kuhn’s horse backed once, but was brought forward again; that defendant told Kuhn, he had better unloose his horse from the buggy, which he did not do. That when the horse backed, Kuhn stood by his horse’s head and took hold of one of the bridle reins, the same being hitched bade on the hook in the saddle, and pulled forward, and thereby the horse’s head was pulled round, and back, that the horse continued to back, Kuhn holding on and pulling on the check rein till the horse went off the boat into the river. That witness would not say positively that Kuhn heard defendant, the wind was blowing hard, &c.
    Defendant also offered to prove, that had Kuhn unloosed the horse, there would not have been any hazard, that it was not customary to have chains or bars across the ends of ferry boats on the Illinois river; and that it is usual and customary for passengers to take charge of their own horses, &c. This testimony was objected to, and the objection sustained by the Court. The Circuit Court permitted the evidence in relation to the conversation connected with unloosing the horse, to go to the jury subject to objections.
    The sixth instruction, as asked by defendant, was, “ If the jury believe, from the evidence, that Kuhn so held the horse, or pulled the reins of the horse, as to cause him to go back and run off the ferry boat, they will find a verdict for the defendant,” which the court modified, and gave in the following language: "If the jury believe from the evidence, that Kuhn so held the horse, or pulled the reins of the horse as to cause him to go back and run off the ferry boat, and that the horse would not have backed off, if Kuhn had not touched him, then they should find for the defendant.”
    0. Peteks for Appellant.
    Ferrymen are not common carriers so as to be responsible for the loss of animals or vehicles placed on their ferries for transportation, at all events, unless caused by the act of God, the public enemy, or the act of the party suffering the loss.
    That such is the rule in relation to common carriers of goods and merchandise is not now disputed. Ferrymen are rather carriers of the public travel for toll, on a certain passage, with no duty of delivery at the end of it, and not carriers of goods and merchandise, to be by them transported and delivered, unless specially delivered to, and accepted by them for carriage on freight They are, Or are like, carriers of passengers, and only liable for some negligence or fault in transporting passengers with their Vehicles and teams ; they may be holden to strict or extraordinary care and diligence, but are not responsible for injuries to passengers or their vehicles or teams, without some neglect or fault on their part. Some of the distinctions between ordinary common carriers and ferrymen are quite apparent:—
    Common carriers transport property for hire, as a public employment, and not persons; or if they carry persons, they are not subject to the rigid rules applicable to common carriers. Ferrymen carry passengers and such vehicles as passengers use for traveling, and their business is not, principally, to carry merchandise. Common carriers of merchandise are not obliged to take passengers to transport. Ferrymen are. Common carriers of merchandise, receive the property to be transported into their possession, and have the sole and exclusive control over it during the transit. Ferrymen do not have the sole and exclusive control over the persons, animals and vehicles that they receive upon their boats, and from the nature of the case, cannot have. Common carriers, are obliged by their calling, to deliver the property to the consignee, or at the place of consignment. Ferrymen are under no obligation to deliver at all, and it is no part of their duty to deliver, unless a usage to that effect is shown, and then they may be charged as common carriers of goods for hire; though this is the result of the usage or implied undertaking, and not ipso facto resulting from their character or employment as ferrymen. Walker v. Jackson, 10 Mees, and Wus. R., 166-7. Passenger carriers even, may be liable as common carriers, by usage or contract, or by implication, but not merely as passenger carriers.

    Dwight v. Brewster, 1 Pick. R. 50; Citizens’ Bank, v. Nant. S. Boat Nav. Co; 2 Story’s R. 16.
    Our statute fixes the duties of ferrymen, R. S., 251. Ferrymen, proprietors of toll gates and turnpike roads, are placed on the same footing, and derive their powers from the same source. Before either can exercise any exclusive privilege, there must be an adjudication, that the convenience of the public requires it; they must be licensed; they must pay a tax in advance ; they must pay an annual tax. R. S. 251, § 1, 2, 3, 14; Lombard v. Cheever et al., 3 Gil., 469.
    Passenger carriers, by land or water, are not subject to the rigid rules applicable to common carriers. They are, at most, held to strict diligence, and are not liable, unless guilty of some negligence or fault. Story on Bailment, § 608, 609, 590, 607, 602, 376-7; Stokes v. Saltonstall, 13 Peters, 190.
    Passenger carriers are not liable for loss of slaves. Buyer v. Anderson, 2 Peters. R. 154; for they cannot be packed away like merchandise, or inanimate objects, and the same rule is measurably applicable to cattle taken on board of carrier ships and other conveyances, and for the same reason. Lawrence v. Anderson, 7 Eng. C. L. R., 88; Galwy v. Sloyd, 10 Eng. C. L. R., 359; Luxford v. Large, 24 Eng. C. L. R. 393; Miles v. Cottle, 9 Eng. C. L. R., 221. Passenger carriers, by land and water, are now held liable for the baggage of passengers. Vehicles and teams of passengers are not in any sense baggage; nor is money, or things not usual for one’s personal use and accommodation in traveling. Orange Co. Bank, v. Brown, 9 Wend. R., 85; Hawkins, v. Hoffman, 6 Hill’s R., 586; Porter v. Drew, 25 Wend. R., 459.
    And to make a passenger carrier liable, there must be a complete delivery to the carrier, and he must have exclusive control of the baggage or article of property. Loven v. U. & S. R. Road Co., 7 Hill’s R., 47; Miles v. Cottle, ut supra.

    If ferrymen are common carriers, in any sense, they may limit their duties and liabilities, either by special contract, or by a general notice, or by a well established usage or custom, which recognizes such a limitation. So that, whether ferrymen are common carriers or not, their liability is, or may be, limited by well established exceptions. 1 Ex. Animals having sense and will sufficient to occasion losses by their own act. And this must necessarily, on principle, extend to loss of carriages and their contents attached to horses, as well as to the horses themselves. 2 Ex. Articles of personal property, not delivered specifically into the exclusive charge and custody of the carrier, but retained by the owner or his servant, wholly or partially, under his own personal care and government. Tower v. U. & S. R. R. Co., 7 Hill’s R. 47; Rogers v. Prink, Eng. C. L. R. 3 Ex. Personal property lost or damaged through the negligence, carelessness or fault of the owner himself, or his servant or agent. Pardee v. Drew, 25 Wend. R., 459; 2 Greenl. Ev., § 215-220; White v. Winnimissett Ferry Co., Law Reporter, May No. 1851, p. 32. The Supreme Court of Massachusetts held, in this case, 1. That ferrymen are not liable like common carriers, unless they take the property under their exclusive control. 2. That they are not liable, even if in fault, unless the plaintiff exercises ordinary care. 3. That their liability is like that of a toll bridge owner, rather than that of a common carrier; or like those passing the highway, and must be without fault, or not entitled to recover. See also Churchill v. Rosebuck, 15 Conn. R., 329; Monroe v. Leech, 7 Met., 275; Smith v. Smith, 2 Pick. R., 621. 1 Moo. & Malk., 21; 4 Carr. & Pay., 106; Butterfield v. Forrester, 11 East, R., 6; Rathbun v. Payne, 19 Wend. R., 400.
    The Circuit Court should have given the first, second and third instructions, asked by the defendant; they contained the correct rule of law as applicable to passenger carriers by land and by water.
    The second instruction given for the plaintiff was erroneous. The conversation between the plaintiff and the ferryman should have been considered by the jury. Kuhn was directed to unloose his horse. Those who travel with passenger carriers by water are subject to the orders and control of the master of the boat or vessel, and must obey him. 3 Kent's Com., 183; 1 Camp. B., 38. It was a question for the jury to determine, whether the plaintiff was in fault, and to what extent.
    The evidence offered by defendant and excluded, should have been admitted. This evidence proved that the loss would not have happened if Kuhn had taken the horse from the buggy, as directed by the ferryman. That the defendant’s boat was one of the best and safest on the Illinois river. That it was not customary to have chains or bars across the ends of ferry boats. That it was customary for passengers crossing with teams to take care of their own horses and prevent their going off. All this was competent evidence to prove an implied contract with every passenger, as well as to show want of proper care on the part of Kuhn. The parties themselves could have made a contract that would have removed any liability of defendant; these facts would have authorized the jury to infer such a contract. F. & M. Bank v. Champlain Trans. Co., 18 Verm. R., 13; Van Santwood v. St. John, 6 Hill's R., 158. Opinion of Walworth and the Senators concurring. Kelsey v. Brown, 3 Day’s R., 346; Renner v. Bank of Columbia, 9 Wheat. R., 582, 90, 91, and note at the end of that case; 17 Wend. R., 305; 10 Verm. R., 161; 4 Pick. 371; Cowen & Hill's notes, part 2, pp. 1410-11-12, et seq.

    The sixth instruction asked by defendant, was intended to present to the consideration of the jury, the naked question whether Kuhn caused the loss by his mismanagement of the horse. Defendant was entitled to this instruction without qualification. It was sufficient if it affirmatively appeared to the satisfaction of the jury, that he caused the loss; this was a complete defence; and it was unnecessary and improper for the Court to encumber them with the belief of a negative. The true question was, did Kuhn cause the loss ? and the defendant was entitled to have this question submitted to the jury, disencumbered of any other matter; but the rider which was stuck on by the Circuit judge, put them to guessing what would have happened, if another and suppositious state of facts had existed.
    N. H. Purple, for Appellee,
    cited Stokes v. Saltonstall, 13 Peters, 191; Story on Bailments, 323; Jones on Bailments, 106, 107, 108; 2 Kent’s. Com. 464-5 ; Mors v. Slue, 1 Mod. R., 85; Allen v. Small, 2 Wend., 327, 340.
   Caton, J.

The main question in this case, requires us to determine the character and extent of the liabilities of ferrymen. We find the law too well settled to admit of doubt or dispute, that they arc common carriers, as to all property which they transport in tlicir boats, whether accompanied with passengers or not. This is the law as laid down by all of the elementary writers, whom we find treating on the subject, as well as the adjudged cases, and to this rule, we have not met with a single exception. We may refer to Jones on Bailment, 10G; Story on Bailment, 828 ; 2 Kent’s Com., 589, and we find it stated, in 2 U. S. Dig., 424, §25, that it was held in Cohen v. Hume, 1 McCord, 439, that “ as soon as a carriage is fairly on the drop or slip of a flat, though it be driven by the owner’s servant, it is in the ferryman’s possession, and he is liable for any subsequent damage that happens to it or the horses.” We regret that we have not access in this Division, to the report of this case, but at any rate, we have enough to show that the law, as applicable to common carriers, is applied to ferrymen in North Carolina. As such seems to be the well settled doctrine in England, and as we know of no State where a different rule has prevailed, we feel bound to consider the principle not now open to controversy; and certainly there is as much reason in holding the carrier, who transports travelers and their property across responsible, as him who conveys them up and down the river. Indeed, if there is any difference, there is more propriety in applying the strict rule to the former, than to the latter, for he enjoys a franchise,'—a special privilege, which is granted to him. in consequence of his superior qualifications to fill a public trust, of great responsibility, while the latter enjoys no special privilege, but is engaged in a business open to all. A distinction was attempted to be drawn upon the argument, between ferrymen and other common carriers, because it was said they are not ordinary carriers of merchandise, but of the pfiblie travel, where the owner is usually along with his property. Upon the same principle, all packet boats, whose chief business it is to carry passengers and their baggage, should be exempted from the strict responsibility of common carriers. But no such distinction is any where recognized in the books, that we are aware of, and pr’obably because there is no reason for it. We are clearly of opinion then, that the defendant’s liability was properly held by the Circuit Court to be that of a common carrier. This liability is very strict. They are held liable for all damage to goods intrusted to their care, unless the loss is occasioned by inevitable accident, not brought about by human agency, the public enemy, or the owner of the goods. It makes no difference whether the carrier has done all in his power to prevent the loss or not; his responsibility is still the same. He is the absolute insurer of the property against all losses, except those occasioned by the causes above specified. Forward v. Pillard, 1 T. R., 33; Hyde v. Navigation Co., 5 T. R., 389. As he is supposed to be better qualified, than even the owner himself, to take care of the property while in transitu, he has the absolute control over it, and can make such disposition of it as he sees proper, and he must see to it that he carries it safely. Such is the authority and such the liability of a ferryman as to property which he transports. He may determine when it is safe and proper to go,—the number of teams which he can safely carry, and may assign to each its order and proper position, and when once received on board his boat, all are in his possession and under his control, and he has the right to make such disposition of them as prudence may dictate, and their safety require. His dominion over them is as complete as over Ms own property. He may even have the right, in case of peril, to command the services of his passengers. It is true, he may be liable for a wrongful exercise, or an abuse of his powers, as if he should refuse to go when he could safely do so, or should refuse to take a traveler when he could with propriety. It is true, that travelers usually have a care, and to a certain extent take charge of their own teams and property while on the ferry boat, but this is in subordination to the ferryman himself. If they do not manage or dispose of them as he thinks best, he may take them entirely out of their hands and arrange them according to the dictates of his own judgment, for he is responsible for their safety. It is true, if the owner, by his wilful and perverse conduct, occasions a loss which would not otherwise have happened, then he cannot charge the ferryman with a loss, for which he alone is responsible. But while acting in good faith, and not in violation of the ferryman’s commands, the owner may be considered as his servant so far as he does manage the property, after it has once got into the boat, and thus come into the possession of the boatman.

A distinction has been drawn between the transportation of slaves, and that of other property, but this was on account of their intelligence as human beings.

We were asked to extend the same rule to other animals when transported. But the same reasons do not apply. The former partake of the character of passengers, while the latter are purely freight. There may be a reason, in one respect, for drawing a distinction between animals and inanimate freight, and that is where the animal is of such a disposition, that he cannot be safely transported in a boat, and where no prudent man would intrust him in such a conveyance. In such a case, should the animal ■be lost on consequence of such disposition, when every precaution had been taken in the construction and management of the boat, and in the arrangement of the freight, I should be inclined to held, that the loss might be attributed to the misconduct of the owner, in improperly putting such an animal on board a beat. But there is no pretence that this horse was of such a disposition. There were no guard chains or bars across the ends of the boat, and the testimony shows, what every man’s own judgment would dictate, that the boat would have been much safer, had it been thus provided. Had this reasonable precaution been taken, in all human probability, this accident would never have happened. Indeed, it is matter of surprise, that all ferry boats are not provided with such safeguards, and it is equally surprising, that more accidents do not occur for the want of them. If ferrymen were more generally aware of the nature and extent of their liabilities, it is most likely that ferry boats would more commonly be provided with bars or chains, at the ends, to protect teams from getting into the river.

The instructions given to the jury, held the defendant liable as a common carrier, and without reviewing them particularly, we are satisfied that the law was properly laid down by the Court.

During the trial, evidence was given by the defendant, tending to show, that Kuhn, who was driving the plaintiff’s horse at the time, and who at the request of one of the ferrymen, was holding the horse by the head, was requested by those having charge of the boat, to unhitch the horse from the carriage, to which he made no reply, and did not do so. Kuhn swears he has no recollection of having heard any such direction, and one of the ferrymen says he thinks he must have heard it, although he says there was a strong wind blowing at the.time, and that Kuhn was to the windward of the person giving the direction. This testimony, the jury were instructed to disregard, and in this we think there was no error. Even if Ku.hu had heard the direction, he was not bound to obey it. The horse and carriage were in the possession and control of the ferrymen, and Kuhn was under no more legal obligation to unhitch the horse, than he was to assist in propelling the boat. It was strictly the business of the ferrymen, to do all that was needful for the safe transportation of the property intrusted to their care. This evidence did not tend to show that Kuhn did anything improper, which contributed in any degree to bring about the accident, but only that he omitted to do that which he 'was not bound to do¡. .even if he had heard the direction.

We think the defendant cannot complain of the qualification to the sixth instruction. Kuhn was holding the horse at the request of the ferrymen, and in doing this, he was acting as his agent, and while he acted in good faith and to the best of his abilities, the latter was responsible for the ultimate consequences. The sixth instruction, as qualified and given, laid down a rule even more favorable for the defendant than this, for the Court held, that if Kuhn so held the horse or pulled the reins, as to cause the horse to get off of the boat, and ff he would not have backed off, if Kuhn had not touched him, they should find for the defendant. This at the very most, was all that the defendant could ask. Certainly he ought not to claim any advantage, because Kuhn, obeyed in good faith the directions given him to hold the horse, more than he would have done, had the man disobeyed him, especially when the result, as the qualification supposes, was not changed by what he did. In the first place, the defendant seeks to avoid responsibility, because Kuhn did not obey orders, which most likely he never heard, to unhitch the horse, and next because he did obey orders, to hold-, the horse. It is more than likely, that if Kuhn had heard and obeyed the order to disengage the horse from the carriage, the same accident would have happened, while he was thus engaged, and then with the same propriety the defendant might have urged, that Kuhn did not proceed with sufficient presence of' mind or dispatch; or if he had not left the horse’s head, he w-'ould not have backed off the boat. We are well satisfied, that, if either party failed to do that which it was his duty to do, if: was the ferrymen, and not Kuhn, but if the former did all they could and were guilty of no negligence whatever, still as a common carrier, the defendant is just as liable in point of law, as if “ there had been negligence.

The judgment of the Circuit Court must be affirmed.

Judgment affirmed.

Trumbull, J., dissented.


text:
    George A. Crook, Appellant v. George H. Taylor, Appellee.
    APPEAL FROM PEORIA.
    A partner who is not joined as a defendant, may be called as a witness by the plaintiff, to prove the cause of action against the partner sued.
    This suit was brought by Taylor against Crook on three promissory notes payable to Taylor, and signed “George A. Crook, per George Spurck.” Crook pleaded the general issue and denied the execution of the notes under oath.
    George Spurck, who had executed the notes for Crook, was called as a witness by the plaintiff, and being objected to as incompetent, was sworn touching his interest. He testified, that he signed the notes for Crook, and had. authority so to do. That at the time of signing the notes he was a partner of Crook, in buying and selling merchandise, and in part for town lots in Peoria. He was objected to as incompetent. Objection was overruled. Spurck was then sworn in chief, and testified in substance to the same facts as above stated.
    The cause was heard before Kellogg, Judge, and a jury, at August term, 1850. Verdict and judgment for plaintiff in the Circuit Court. A motion for a new trial was made and overruled, and an appeal taken by Crook. Appellant assigned for error, the permitting of Spurck to be sworn as a witness in the case, -and the .denial of a motion for a new trial.

      N. H. Purple, for Appellant.
    H. O. Mérrimas-, for Appellee.
    The witness, Spurck, signed the notes in suit, as by procuration ; and although a partner, he was a competent witness to testify for the plaintiff below, to prove the acts of the firm, whether he was competent to testify to the fact of partnership or not. Collier on Partnership, p. 457; 2 Phillip’s Ev., 108, and cases there cited.
    The question of competency as a witness, for any purpose, here arises. Ho exception is taken to any of the evidence given in chief, consequently, if competent to prove the execution of the notes, the Court properly admitted his evidence.
    The question of partnership is not in issue, as no plea of abatement is filed.
    Spurck was a dormant partner, and pretended to act by procuration, and as to third persons he was an agent, and not necessarily made a party to the suit. 2 Phil. Ev., 128, and cases cited.
    An agent is competent to prove his agency and acts,- from whatever source that agency is derived, from partnership or otherwise.
   Treat, C. J.

This action was brought by Taylor against Crook, to recover the amount of three promissory notes, signed e‘ George A. Crook per George Spurck.” The defendant pleaded non est factum, verified by affidavit. The plaintiff, to prove the execution of the notes, offered Spurck as a witness, who being sworn touching his interest, stated, that the notes were signed by him in the name of Crook, and that he had authority so to do; that Crook and himself were partners in baying and selling merchandise and real estate, and the notes were given for merchandise and town lots; that the business of the partnership was transacted in the name of George A. Crook, and witness was in the habit of using the name of Crook in the same way, and Crook had recognized his acts. The defendant objected to the competency of the witness, but the Court overruled the objection, and permitted him to testify. That decision is now complained of.

It is well settled by the authorities, that a partner who is not joined as a defendant, may be called as a witness by the plaintiff, to prove the cause of action against the partner sued. Hudson v. Robinson, 4 Maule & Selwyn, 475; Blackett v. Weir, 5 Barnwall & Cresswell, 385; Hall v. Curyon, 9 ibid, 646; Brooks v. McKinney, 4 Scammon, 309. He is interested in defeating the action, for if it succeeds, the defendant may compel him to contribute. He has no interest in sustaining the action, for if it fads, and he is sued and made liable for the whole debt, he may enforce contribution from his partner. In any point of view, the witness was clearly competent.

The judgment is affirmed.

■Judgment affirmed.


author: Trumbull, J.

text:
    John F. Gilpatrick, for the use of Joseph Cowgill, Pltff in Error, v. George Foster, Deft in Error.
    ERROR TO JO DAVIES.
    An endorsement upon a note is like a receipt, subject to explanation, and where wholly uncertain, unless explained, must be rejected as a nullity.
    This was an action originally commenced before a justice of the peace. From his decision, an appeal was taken to the Circuit Court of Jo Davies, and came on for trial, without the intervention of-a jury, before Sheldon, Judge, at the March term, 1850, of said Court. An issue was found for appellant, and a judgment was rendered against Foster, for the sum of thirty-three dollars, and seventy-three cents. A motion for a new trial was overruled.
    The bill of exceptions shows a note executed by Foster to Gilpatrick, as follows: “ one day after date I promise to pay John F. Gilpatrick or bearer, ninety-seven dollars and T\\, for value received,” dated 3d January, 1848, which was the only evidence offered by the plaintiff. The defendant insisted upon the allowance of certain sums endorsed upon the note as credits •, which endorsements are as follows :
    “May 17, 1848.. Eeceived on the within 14 70 cents.”
    “ August the 4th, 1848. Eeceived on the within, 50”
    “April 18, Eeceived on the within, 5,00.”,
    The plaintiff asked leave of the Circuit Court to amend the endorsement on the note, which reads, “Eeceived on the within 50,” so as to make it read fifty cents; which was denied. All the endorsements were read by the defendant, which was all the testimony offered. The error assigned was the allowance of a credit of fifty dollars by the Circuit Court upon the strength of the endorsement made on 4th August, 1848.
    Higgins & Strother, for Pltff in Error.
    The note constituted a good cause of action for the amount. The endorsements thereon were in the nature of receipts, and if there was any ambiguity whatever in the case, it was on the part of the defence.
    The endorsement was no part of the note. 21 Vermont, 222; McDaniels v. Lapham, 1 Aiken, 311; 2 Mass., 397; 5 Iredell, 276.
    The endorsement is in the nature of a receipt and is ambiguous. 15 Verm., 215; 1 D. Chip. R., 227.
    T. Campbell & E. S. Leland, for Deft in Error.
   Trumbull, J.

This was an action originally commenced before a justice of the peace, on a promissory note for ninety - seven dollars and seventeen cents. The only question in the case arises out of an endorsement on the back of the note which is as follows: “August the 4th, 1848. Received on the within, 50” There is no dot or mark of any kind either before or after the “50” to determine whether it means fifty dollars, fifty cents, or fifty something else.

There were some other credits upon the note, but not in any manner connected with the one in question, so as to afford the least clue to its meaning. The only evidence in the case was the note with its endorsements, and the Circuit Court held the endorsement in question to mean a credit of fifty dollars, which still left a balance due the plaintiff, after deducting the other credits about which there was no controversy. Nothing can be more uncertain than a credit of “50” on the back of a note. It may mean fifty pounds, fifty bushels, or fifty anything else, though it was most probably intended for fifty dollars or fifty cents, but which, if either, we cannot tell, and because it is wholly uncertain, the credit, unless explained, must be rejected as a nullity. “ If an agreement be so vague and indefinite, that it is not possible to collect the full intention of the parties, it is void; for neither the court nor jury can make an agreement for the parties.” Chitty on Contracts, 73; Wainwright v. Straw, 15 Vt., 219.

An endorsement of a credit upon the back of a note, is no part of the note itself. The plaintiff’s cause of action, was made out by the production of the note, and though the defendant was entitled to the benefit of the credits endorsed upon it, if intelligible, yet it was no part of the plaintiff’s case to explain them for the benefit of the defendant.

The endorsement of the credit upon the note being in the nature of a receipt for money, is subject to explanation by parol, and if the defendant can explain what it means, he will be entitled to the benefit of it, otherwise, it must be rejected as a nullity.

Judgment reversed and cause remanded.

Judgment reversed,.


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    Marshall B. Pierce, Appellant, v. Charles G. Carleton, et al., Appellees.
    APPEAL FROM JO DAVIES.
    A garnishee may inquire into the legality and regularity of the previous proceedings against a defendant in attachment; because if such proceedings are unauthorized and void, he would not be protected in the payment of an unauthorized judgment.
    If the record in an attachment case, shows that the .notice was published in time, it may be shown by parol, in aid of the publication, the place and manner of it, and this Court will presume, that the necessary proof was made on the < lircuit. Surplus money made on execution in the hands of an officer, belonging to the defendant, may be garnisheed in the hands of the officer.
    The answer of a garnishee until disproved or contradicted, must be considered as true. If judgment is asked upon the answer of a garnishee, unless his answer clearly makes him chargeable, he should be discharged.
    Oarleton & Oo. commenced their action in assumpsit, in the Jo Davies Circuit Court, by attachment against George Cribb, a non-resident. The writ issued against several persons-, (among others, the present appellant) as garnishees. Pierce was a deputy under the IJ. S. Marshal, for the- District of Illinois. As such deputy he had levied upon divers goods &c., as the property of Cribb. Pierce returned to the Court the list of the goods upon which he had levied. One Robinson and others, by interpleader, claimed the goods garnisheed in the hands of Pierce, and which he had attached as deputy marshal. The case on interpleader was heard, and the decision was against the claimant. Pierce, in answer to interrogatories propounded to him as garnishee, responded, that he had no money in his hands belonging to Cribb. except as follows r That as Deputy Marshal of the U. S. Circuit Court, he had two executions from said Court against Cribb, by virtue of which he had levied upon certain goods as belonging to Cribb, which wei% sold, and the proceeds exceeded amount of executions about $249,07, which sum was in his hands at the time of the service of the garnishee process. That he, Pierce, had been directed by the marshal to return this excess, with the executions, to the Clerk of the U. S. Circuit Court. That he, Pierce, had the excess of $249,07 in his hands,, which he held, subject to the order of the Circuit Court of Jo Davies, if he was, under the circumstances, bound to pay that sum as garnishee, to Oarleton & Co.
    A judgment was rendered in favor of Oarleton & Co., against Cribb, in the Jo Davies Court, at May term, 1850. At the October term, following, a judgment was rendered against Pierce as garnishee, condemning him to pay to Carleton & Co., the said sum of $249,07.
    The proceedings were had before Sheldon, Judge.
    The notice of publication for bringing the defendant, Cribb, into Court at the suit of Carleton & Co., had the following certificate annexed: 11 We hereby certify that the annexed advertisement was published in the North Western Gazette, four consecutive weeks, the first of which publications, was on the (20) twentieth day of March, (1850,) eighteen hundred and fifty.
    Houghton & Springer.”
    E. S. Leland, with whom was M. Y. Johnson, for Appellant.
    There being no proper proof of publication as to the affidavit in attachment, the garnishee may avail himself of this irregularity. Being a trustee, he is to see that the proceedings against the defendant in attachment are regular, otherwise he will not be protected by the attachment, in case of a suit against him. 2 Howard, 649 ; 1 Binn., 25.
    The money in the hands of Pierce, could not be reached by the garnishee process, because it was in the custody of the law. 4 East, 510; 9 East, 48; 9 Miss., 382; 8 Scam., 451; 1 Crunch, 117; 1 Dallas, 854; 1 Ham., 275.
    Courts will exercise a control over surplus moneys in the hands of their officers.' 1 Wend., 87; 7 Wend., 259; 8 Caine’s R., 84; 5 John. R., 167.
    The garnishee in this case, could only have been charged on the facts in his answer. If there was not enough stated to show an indebtedness, the plaintiffs in this attachment should have propounded further interrogatories.
    The facts stated in the garnishee’s answer, render it uncertain whether the surplus money belonged to Cribb or not. Before he should have been charged, there should have been an issue made, to settle whether the property sold on the execution, from the U. S. Circuit Court, was Cribb’s, and whether he alone, was entitled to the surplus. The fact of indebtedness by the said Pierce, to the said Cribb, not appearing clearly to exist, the garnishee should have been discharged. 1 Supp. U. S. Digest, p-14, sections 118, 120, 121, 152, 164, 216; 3 S. & M., 296; 4 Gil., 355.
    There must be an indebtedness shown from Pierce to Cribb. If the garnishee was liable to Cribb, his liability was in tort; there was no indebtedness. Although Cribb might waive the tort, and sue in assumpsit, it is a personal privilege, to which the creditor is not entitled. Sewell on Sheriffs, 254; 1 Supp. IT. S. Digest, p. 14, §117.
    E. S. Blackwell, for the Appellee.
    A garnishee upon writ of error, cannot question the regularity of the proceedings against the principal debtor in the attachment suit. If the Court has jurisdiction, he will be protected in all payments under the order of the Court, however irregular the proceedings may be. Though the proceedings may be reversible on error brought by the principal, they cannot be impeached collaterally by any one. 4 S. & M., 704; 12 ibid., 475; 9 Missouri, 421; Lawrence v. Lane, 4 Gil., 361-2; Sessions v. Stevens, 1 Branch, 233; Tubb v. Madding, Minor’s Rep., 129; Stebbins v. Finch, 1 Stewart, 180.
    In this case the Court acquired jurisdiction by the seizure of the projDerty, and service of the process upon the garnishees. The neglect of the clerk to make publication, was a mere irregularity, which cannot operate to defeat that jurisdiction, which had already attached by the seizure, &c. The jurisdiction in no wise depends upon the publication. Paine v. Moreland, 15 Ohio, 435; R. S., 66, § 13, 14. If publication is essential in order to confer jurisdiction, it is sufficiently made out in this case by recital and presumption. The record recites that due proof of publication was made, which is at least prima facie evidence of that, fact. Barbour v. Winslow, 12 Wend., 102; Selin v. Snyder, 7 Serg. & Rawle, 166; Raborg v. Hammond, 2 Harr. & Gill, 42; Rust v. Frothingham, Breese, 258.
    A party, in making proof of publication, is not confined to-the mode pointed out by the statute. He may resort to the common law mode, and this Court will presume, that such proof was-made, to the satisfaction of the. Court below. R. S., 47, § 1;. Broome’s Maxims, 427.
    The principal question in the case is, whether a surplus of money remaining in the hands of a deputy marshal, after satisfying the several executions directed to him, can be reached by the process of garnishment, as the money of the defendant in execution? The words of our statute are broad and comprehensive, and differ widely from the statutes of other States. The statute provides that the sheriff shall “summon dll persons, &c., whom the creditor shall designate as having amj property, effects, or cho-ses in action, in their possession or power, belonging to the defendant, or who are in any wise indebted to such defendant, &c.” E. S. 66, §12. This is a remedial statute, intended to enlarge the right and power of the creditor, to reach the effects and credits of his debtors, and should be liberally construed. It is the policy of our laws to subject the entire estate of the debtor, whether in possession, or action, to the payment of his debts, and such a construction should be placed upon this statute as will advance that policy.
    The cases relied upon by the counsel for the appellant may be classed as follows:
    1. Where the defendant in execution attached the money while in the hands of the officer, under pretence of a debt due him by the plaintiff in the execution; such were the cases of Reddick v. Smith, 3 Scam., 451; Wilder v. Bailey, 3 Mass., 289; Dawson v. Holcombe, 1 Ohio, 275; Ross v. Clark, 1 Dallas, 354.
    2. Where the officer sought to apply moneys which he had collected under process, upon executions in his hands against the creditor for whom he received the money; this was the detail of facts in First v. Miller, 4 Bibb, 311; Conant v. Bicknell, 1 Chipman, 50; Turner v. Fendell, 1 Cranch, 117; Thompson v. Brown, 17 Pick., 462.
    3. Where the money was collected by the Sheriff under execution, remained in his hands, and was attached by another officer as the money of the execution creditor. Marvin v. Hawley, 9 Missouri, R., 382. It will be perceived that in each one of these cases, the money was seized or garnisheed as the money of the creditor, while it remained in the hands of the officer who collected it. The reasons assigned for these decisions are, that the money was in the custody of the law; that the creditor had no property in the specific money collected, until it was paid over to him; that it would lead to delay in the execution of judgments, and bring different judicial tribunals into collision with each other. These reasons are unanswerable, when applied to that class of cases, and are all founded upon the plain and imperative mandate of the writ, which commands the officer to levy a specific sum of money, and bring into court on a day therein mentioned. 2 Lilly’s Entries, 581; 2 Harris’ Entries, 426.
    The case at bar is clearly distinguishable from the cases cited. The writ does not command him to bring the surplus into court; in fact the law does not contemplate that there will be a surplus. He must levy the precise sum named in the writ. 2 T. B., 157. And this at his peril, if the levy is insufficient, he is liable to the plaintiff for the residue of the debt. If he levy more than is called for by the writ, though he will not be liable as a trespasser, unless the levy is grossly excessive, yet in-selling the goods he is bound to stop the moment the money, named in the writ, is raised. If he sells more, he is liable in trover, at the suit of the defendant, for the excess. Sewell on Sheriffs, 254; Cook v. Palmer, 13 E. C. L. R., 305. He must not return the surplus money into Court, but retain it in his hands. Sewell, 254. And it is his duty to pay it over to the defendant immediately. Fieldhouse v. Croft, 4 East., 510. In no sense, then, can this surplus be regarded as money in the custody of the law. Even if brought into court by the officer, it cannot be reached by a creditor of the debtor upon motion. 4 East, 510. And it is to all intents and purposes the property of the defendant, and he may have an action for money had and received against the officer.
    The right to reach this surplus, by the process of garnishment, is fully sustained by the following authorities. Jaquets v. Palmer, 2 Harrington, Del. R., 144; King v. Moore, 6 Ala., 160; Tucker v. Atkinson, 1 Humph., 800; Watson v. Todd, 5 Mass., 271; Crane v. Freese, 1 Harrison, 305; Hurlbut v. Hicks, 17 Vermont, 193; Woodbridge v. Morse, 5 N. H. R., 519. There can be no collision between this and the Federal Courts, for the latter has no jurisdiction over the surplus. Ho execution is delayed by this proceeding; nor can any litigation be expected to follow a judgment in favor of the appellee.
    It is said, however, that if trover lies at the suit of Cribb against the marshal for an excessive sale, we have no right to waive for him the tort, and treat the surplus as money had and received for his use, and thus subject it to garnishment. To which we answer the money is 11 effects" belonging to Cribb, and whether it came to the possession of the officer by contract or tortionsly, our right to the money is not impaired. It might be different under the Massachusetts statute which requires the money to be “intrusted and deposited" before the holder can be summoned as a trustee. Besides this, if Cribb should sue the marshal in trover, the recovery in this case would be allowed in mitigation of damages, if not as an effectual bar to the suit.
   Treat, C. J.

The first question arising on this record is, whether a garnishee, who sues out a writ of error to reverse a judgment rendered against him, may inquire into the legality and regularity of the previous proceedings against the defendant in attachment. In one respect, he unquestionably can. In a suit by attachment, the Court must acquire jurisdiction, and proceed to enter a judgment against the defendant, before it can pronounce any judgment against a party summoned as garnishee. If the previous proceedings are unauthorized and void, there is no sufficient basis to support the judgment against the garnishee. He would not be protected in the payment of a judgment obtained under such circumstances. It would be regarded as a voluntary and not a compulsory payment, and the defendant might compel him to pay a second time. It is clear, therefore, that a garnishee should be permitted to inquire into the validity of the previous proceedings in the case. If such proceedings arc void, the judgment against the garnishee may for that cause be reversed on error. But, if the Court had jurisdiction, its errors and irregularities can only be called in question by the defendant, and that too in a direct proceeding for the purpose. They affect him only, and he may waive or insist on them. The garnishee has no cause to complain, for he will be protected in the payment of the judgment. Whithead v. Henderson, 4 Smedes & Marshall, 704; Matheny v. Galloway, 12 ibid, 475; Insurance Co. v. Cohen, 9 Missouri, 421.

In this case, the garnishee assigns for error, that no notice of the pendency of the attachment was given to the defendant. Waiving any discussion of the question whether the publication of notice is necessary'to confer jurisdiction on the Court in proceedings by attachment, it is enough for the decision of this case, that it sufficiently appears from the record that the requisite notice was given. The record states that the plaintiffs filed proof of publication, and then follows a notice in due form, with a certificate of Houghton & Springer attached, in which they state that the notice was published in the North Western Gazette, for four weeks consecutively, the first publication being on the 20th of March, 1850. The judgment against the defendant was entered on the 20th of May, so that sixty days intervened between the first insertion of the notice and the date of the judgment. It is true that Houghton & Springer do not describe themselves in the certificate as publishers or printers of the Gazette, nor do they state where the paper was published. But it was clearly competent for the plaintiffs to prove by parol, that the paper was published in the State, and that Houghton & Springer were the publishers thereof. The presumption should be indulged, that this was done to the satisfaction of the Court.

The record also presents the question, whether moneys remaining in the hands of an officer after the satisfaction of the execution against the defendant in attachment, can be reached by the process of garnishment. The statute is very broad in its provisions. It provides that the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor, of every kind, in whosesoever hands or possession the same may be found, may be reached by attachment. This Court decided in the case of Reddick v. Smith, 3 Scam., 451, that money in the hands of a Sheriff, collected on execution, cannot be attached as the property of the plaintiff in the execution, because the money is in the custody of the law, and subject to the control of the Court from which the execution emanates; and because to allow it to be done, might bring different tribunals into collision, and cause much embarrassment to officers concerned in the execution of final process. We adhere to that decision, but we are not inclined to extend the rule to cases like the present. The same reasons do not apply to a case where an execution has been satisfied, and there is a surplus in the hands of the officer belonging to the defendant. The command of the writ does not require the officer to bring the surplus into Court. When the amount due on the judgment is returned into Court, or paid over to the plaintiff, the execution has accomplished its office, and if there is any surplus it is the duty of the officer to pay it over to the defendant. It is not strictly in the custody of the law, but the officer holds it as so much money had and received to the use of the defendant. Courts do not assume any control over a surplus, except under peculiar circumstances, as in the case of Vanitest v. Yeomans, 1 Wendell, 87, where, on a sale óf real estate under a senior execution, the Court directed the Sheriff to pay the surplus to a junior judgment creditor having a lien on the same property. See Fieldhouse v. Croft, 4 East., 510; Jacquet's Admrs. v. Palmer, 2 Harrington, 144.

The remaining question relates to the correctness of the judgment against the garnishee. The answer of a garnishee until disproved or contradicted, must be considered as true. If the plaintiff declines to put it in issue, but asks for j udgment thereon, the answer ought clearly to disclose a state of facts on which the garnishee is chargeable. In such case, if the answer leaves it doubtful whether the garnishee is indebted to the defendant, he should be discharged. Judgment should not be entered against him, where there is reason to believe that he may bo compelled to pay the same demand to another }Darty.

It is insisted, that the answer of the garnishee did not authorize a judgment against him. He states in substance, that, as deputy marshal, he received two executions against the defendant, and levied the same on a lot of merchandise in the possession of Campbell; that the goods were claimed by Robinson, and on a trial of the right of property, a verdict was returned against the claimant, on the ground that the executions were a lien on the goods before they came to the possession of the claimant; that he thereupon proceeded to sell so much of the goods as he supposed would be sufficient to discharge the executions, but there was found to be a surplus in his hands, which is the foundation of the judgment in question. It might, perhaps, be inferred from the answer, that Robinson was entitled to the surplus. The case, however, shows that the residue of the goods levied on by the garnishee, were attached in this case as the property of the defendant; that Robinson interpleaded claiming them as his, and that the right of property was adjudged against him. The case further shows that Robinson, subsequently came into Court, and released on the record, all claim to the goods attached and their proceeds. It is evident from the whole case, that his claim, whatever it was, was the same as to all of the goods. The right of property, as well in the goods sold by the marshal, as those levied on in this case, was determined against him; and if he was not entitled to the goods as against the attaching creditor, he certainly was not entitled to the surplus, for that was but the proceeds of a portion of the same goods.

The judgment is affirmed.

Judgment affirmed.


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    Richard C. Ross, et al., Appellants, v. The City of Chicago.
    APPEAL FROM COOK.
    A plaintiff has no right to a nonsuit after a case has been submitted to a jury.
    This was an action of covenant, brought by the City of Chicago on a bond given by Ross, who had been elected Marshal of the City of Chicago, as principal, and the other defendants as his sureties. The declaration alleged a breach of the covenant, in two several counts. Several pleas were filed, upon which issue was joined. At the November term, 1849, of the Cook Circuit Court, the cause was tried before H. T. Dickey, Judge, and a jury; when all of the issues were found for the defendants, and a judgment was entered, that the defendants do have and recover of the said plaintiff their costs and charges, by them about their defense in this behalf expended, and have execution therefor. A motion for a new trial was made, and overruled. A motion was subsequently made by the plaintiff, to set aside the verdict of the jury entered in the cause, and for leave to submit to a nonsuit; which motion was sustained by the Court. To this decision the defendants in the Circuit Court excepted, and prayed this appeal. The errors assigned, complain of the decision of the Circuit Court in setting aside the verdict after judgment, to enable the plaintiff to submit to a nonsuit.
    N. B. Judd and Mahniere & Meeker, for Appellants, made the following points:
    The 29th section of the Revised Laws of 1845, entitled Practice, provides: That every person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the bar.
    The power of the Judge to grant new trials is a discretionary one, growing out of some injustice done by the jury on the merits, and is never granted except in the plainest cases. That no injustice was done in this case, is manifest from the fact, that a new trial was refused on the merits.
    This judgment involves a palpable evasion of the statute, and in effect a repeal of it; since, if a nonsuit may be obtained after verdict, in a case where a party should have suffered nonsuit before the jury retired, then he is not barred as the statute declares he shall be.
    Chickerisg- & Lull for Appellee.
    Courts at their discretion may allow a nonsuit, "where a plaintiff cannot claim it as a right. Haskell v. Whitney, 12 Mass. Reports, 47; Lock v. Wood, 16 ibid, 307.
    The Practice act is confined to proceedings uon trial;” that is, that the plaintiff, when such case is “on trial,” shall not be permitted to suffer a nonsuit as of right, unless he do so before the jury retires; thus confining its provisions to the particular trial, and not extending them to subsequent proceedings, where for any cause there has been a mistrial, or an erroneous verdict. For the exercise of such a discretion, error cannot be assigned.
   Treat, C. J.

This was an action of covenant brought by The City of Chicago against Dyer and others. The defendants pleaded several pleas, on which issues of fact were formed. The jury returned a verdict for the defendants, on all of the issues. A motion for a new trial was made and refused. The Court then sustained an application to set aside the verdict, and permit the plaintiff to submit to a nonsuit. That decision is assigned for error.

There was a trial on the merits, and a finding in favor of the defendants on all of the issues. No error had intervened to the prejudice of the plaintiff, and a motion for a new trial was denied. In this state of case, the defendants were clearly entitled to a judgment on the verdict—a judgment conclusive of the matters submitted to the jury. Instead of entering such a judgment, the Court sustained an application to set aside the verdict, and allow the ¡Dlaintiff to suffer a nonsuit; thereby depriving the defendants of their right to a final judgment, and leaving the whole subject matter of the suit open and undetermined. This action of the Court cannot be considered as a reconsideration and allowance of the motion for a new trial. It was not the understanding of the parties, nor the design of the Court. The verdict was vacated for the sole purpose of enabling the plaintiff to suffer a non-suit. It was in effect permitting the plaintiff to dismiss the case after verdict. A plaintiff has no right to a nonsuit after the case has been submitted to a jury. The statute provides, that “Every person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the bar.” E. S., ch. 83, § 29. But it is insisted, that it is within the discretion of the Court to permit a plaintiff to become nonsuit after verdict. The Court possesses no such discretion. In the case of Price v. Parker, 1 Salkeld, 178, it is said: “Upon a motion to discontinue upon payment of costs, the Court held, that after a general verdict there can be no leave to discontinue; for that would be having as many new trials as the plaintiff pleases; but that after a special verdict there may, because that is not complete and final; but in that case it is a great favor.” In the case of the Judge of Probate v. Abbot, 13 New Hampshire, 21, where the authorities on this question arc collected and considered, the Court came to the conclusion that a plaintiff could not become nonsuit after verdict.

The judgment is reversed, and the cause remanded, with directions to the Court to enter final judgment for the defendants on the verdict.

Judgment reversed.