author: Trumbull, J.

text:
    The County of Richland, Pltffs in Error v. The County of Lawrence, Defts in Error.
    ERROR TO LAWRENCE.
    The money appropriated by the act to establish and maintain a general system of Internal Improvements, approved Feb’y 27, 1837, to the counties through which no railroad or canal was provided to be made, was subject to legislative control, and until definitively appropriated might have been resumed or diverted at the will of the legislature, prior to the passage of the law of 1845, which gave the money absolutely to certain counties.
    The state may make a contract with, or a grant to a municipal corporation, which it cannot impair or resume.
    A grant made to a public corporation for purposes of private advantage, although the public derives a common benefit therefrom, stands on the same footing that it would have done, had it been made to any body of persons.
    Public or municipal corporations, existing only for public purposes, possessing only such powers as are granted to them, are subject at all times to the control of the legislature.
    This was a hill filed in the Lawrence Circuit Court, by Eichland County, for the purpose of obtaining from the former for the benefit of the latter County, a portion of the fund appropriated by the legislature in 1837 for the benefit of such Counties as had not any railroad or canal passing through them. By virtue of this law, Lawrence County received the sum of $11,125 00; subsequently to this appropriation, Eichland County was created out of the County of Lawrence and the County of Clay. After the County of Eichland was created, the legislature passed a law, directing that Lawrence County should pay out of the fimd received as aforesaid, to Richland County, such proportion of the fund, as the population of Richland County or that part of the territory taken from Lawrence County, as compared with the whole population, should show Richland County entitled to have. '
    Lawrence County refused to pay any portion of the fund for the benefit of Richland County. This bill was filed to compel Lawrence County to pay over the money. The bill was dismissed for want of equity, at the September Term, 1849, of the Lawrence Circuit Court.
    Richland County sued out this writ of error, assigning for error the dismissal of the bill.
    A. Kitchell, for County of Richland.
    It is insisted that the statute in question violates Sec. 10, Art. 1 of the Constitution of the U. S., because it impairs the obligation of a contract. And that it violates Sec. 1, Art. 1 of the State Constitution, because it is an assumption of judicial powers. A statute should never be decided to be unconstitutional, except in cases of clear necessity. Dorman v. Lane, 3 Scam. 240; The People v. Marshall, 1 Gil. 688.
    The act does not impair the obligation of a contract. The County is a public corporation and subject to legislative control, she cannot enter into a contract with the state.
    Sec. 4 Schedule of the Constitution; 1 Greenleaf Ev. § 331; 2 Kent, 274, 305; 3 Story’s Com. on Const. 260; The People v. Wren, 4 Scam. 273-4; Coles v. The County of Madison, Breese 120; Commonwealth v. Bent, 1 Missouri, 170-1; Bush v. Shipman, 4 Scam. 191; The People v. Morris, 13 Wend. 337; Holliday v. The People, 5 Gil. 216; Dartmouth College case, Peters’ Condsd. Rep. 538, 556, 561.
    The entire subserviency of a county to legislative control being -established, the power to interfere with, take and dispose of the funds, follows necessarily. Shaw v. Dennis, 5 Gilman, 417; Thomas v. Leland, 24 Wend. 63.
    Admitting the county could not be deprived of moneys or funds, which belong to the county for ordinary purposes of expenditure; yet the fund in question Was a special public fund, deposited with the County for special purposes. The. county was but the trustee for the public use. The legislature continued to exercise control over this appropriation, until 1845, when it was given up wholly to the Counties. Acts of 1845, p. 50; Acts of 1839, p. 44, 81, 258, 261; The People v. Moon, 3 Scam. 126; The County of Pike v. The State, 11th Ills. R. 203.
    The act, is not an assumption of judicial powers. Shaw v. Dennis, 5 Gil. 407; People v. Moon, 3 Scam. 126; Thomas v. Leland, 24 Wend. 65.
    The power of the legislature is only limited by the constitution of the state, and of the U. States. While her acts are kept within those limits, her power is omnipotent for all purposes of legislation. Sawyer v. The City of Alton, 3 Scam. 127; Mason v. Wait et al., 4 Scam. 134.
    W. B. Scates & U. F. Líítdek, for the County of Lawrence.
    This money has long since been paid to Lawrence County by the state, and disposed of by her, as shown by the bill.
    Counties are created bodies “ corporate and politic,” and authorised to sue and be sued, in the name of each county respectively. R. L. 1833, p. 139, sec. 1; 1 Scam. 97; 5 Gil. 513.
    They are made capable of talcing, holding, and disposing of lands, chattels, &c., by deed, &c. R. L. 1833, Secs. 2, 3, 4; 1 Scam. 97; 5 Gil. 513.
    Also to appoint agents, &c., whose contracts are binding upon the county. R. L. 1833, Sec. 5.
    County Commissioners are agents of the “county,” in the management of their suits, &c. R. L. 1833, Sec. 1, 3; 1 Scam. 97; 5 Gil. 513.
    Fines and penalties are given to the Commissioners’ Court for the use of the county treasury. R. L. 1833, p. 141, sec. 1.
    The legislature has also organized a separate, distinct jurisdiction for municipal and political purposes, viz: “the County Commissioners’ Court,” and invested it with certain limited judicial and ministerial powers, to be exercised for the benefit of the inhabitants of the county, for public, political, municipal, and police purposes. R. L. 1833, p. 142, Secs. 1 to 12.inclusive.
    ■ “ Public and municipal corporations may stand,, as to grants made to them by the state, on the same footing as would any individual or private corporation, upon whom like special Iranchise may have been conferred.” Angel & Ames on Corp. 30, 31; Bailey v. Mayor, &c. N. Y., 3 Hill, 531.
    A public municipal corporation, besides the powers granted for public purposes, may also have other powers and rights in relation to property, and these powers and rights ought not to be confounded. 3 Hill, 531; Modalay v. East India Co., 1 Brown Ch. R., 469; 1 Scam., 97; 5 Gil., 513.
    The legislature may alter, modify, or destroy the corporation and its powers, but it has no more constitutional power over its rights of property, its contracts, &c., than it has over those of individuals and private corporations. Angel & Ames on Corp., 31, note 1; Bowdoinham v. Richmond, 6 Greenleaf, 113; 2 Kent Com., 305 and 306, note b.

    But the legislature has no power to impair the obligation of a contract, and this applies equally to property in possession, under contracts executed, or to “grants,” and whether by the state or individuals. 3 Story Com. Const., 241, 242, 243, sec. 1370 to 1374 inclusive; State of Maryland v. Balt. & Ohio R. R. Co., 3 How., 548.
    So grants of land by the state are irrevocable, whether made to “ parishes, towns, or private” persons. 3 Story Com. Const., • 257-8; Terret v. Taylor, 3 Cond., 259; Town of Pawlet v. Clark et al., 3 Cond., 418; Fletcher v. Peck, 2 Cond., 208.
    And so, by a parity of reason, would be a grant or gift of money or property.
    The defendant claims, therefore, that by the grant of this money by the state, and after its receipt, it became the property of Lawrence County, for the use of the inhabitants of the county for the objects intended by the gift, and consequently beyond legislative Assumption, without a violation of the Constitution of the United States and of this state. Clause 1, Sec. 10, Art. 1, Const. U. S.; Sec. 1, 2, Art. 1, Const.Ills.; Sec. 16, Art. 8, Const. 111.
    The act of Eeb. 21,1843, which gives Richland County a portion of this money, is unconstitutional and void, being in violation of both Constitution’s. Ibid.

    It adjudges Lawrence County to 'be indebted to Richland County, and imposes a penalty for non-payment, and therefore is unconstitutional and void. Sec. 1, 2, Art. 1. Const. Ills.; Sec. 16, Art. 8, Const. His.
    The legislature cannot take the property of one individual, county, or corporation, and give it to another, or apply it to public uses without just compensation, or by consent; which is here attempted. Sec. 8,11, Art. 8, Const. Ills.; County of Hampshire v. County of Franklin, 16 Mass., 75; Bowdoinham v. Richmond, 6 Greenleaf, 112; 2 Wend., 135; 16 Conn., 171, 172; 4 Mass., 329, 390.
    Meither can the legislatore adjudge an individual, county, town, or corporation, to be indebted to another. Dorman v. Lane, 3 Scam., 240; Sec. 1, 2, Art. 1, Const. Ills.; 16 Mass., 75; 6 Greenleaf, 112.
    Mor can' they eonstitutionaBy act, where the consequences of the act lead to the creation of a debt, or the fixing of a liability -or debt upon another—as by legalizing the marriage of a female pauper, they cannot change her residence to that of her husband, and so charge another town with her maintenance. Inhabitants -.of Brunswick v. Inhabitants of Litchfield, 2 Greenleaf, 28.
    So in this ease, by the organization of a new county, partly i®nt of the County of Lawrence and partly ©nt of Clay, the legislature cannot create an indebtedness from Lawrence to the new County.
    The state has no power, without .the consent of parties, to compel them to submit to a special, certain mode of adjustment and settlement by arbitration of disputes about property, though Hie state be a party. Little v. Frost, 3 Mass., 116.
    Mor suspend a particular provision of law for the benefit of «one individual, by which a liability of another is revived. Holden v. James, admr., 11 Mass., 396.
    Having established these positions and principles by the foregoing authorities, the defendant would present the foBowing cases, an which it was holden that property was vested in the irihábi¡íants of towns by dedications of the proprietors to public uses.
    Lebanon v. Warren County, 9 Ohio, 80; Le Clerc et al. v. The Trustees of Gallipolis, 7 Ohio, 217; The State of Maryland v. The Baltimore & Ohio R. R. Co., 3 Howard, 548; New Orleans v. The United States, 10 Peters, 720.
   Trumbull, J.

The County of Richland filed a bill in chancery against the County of Lawrence, aBeging that the latter was one of those counties through which no railroad or canal was provided .to be mad§, by the act to establish and maintain a Gen-

eral System of Internal Improvements, approved Eeb’y 27,1837; that the 15th division of sec. 18 of said act declared, “There shall be appropriated the sum of two hundred thousand dollars of the first moneys that shall be obtained under the provisions of this act, to be drawn by the several counties in a ratable proportion to the census last made, through which no railroad or canal is provided to be made at the expense or cost of the State of Illinois ; which said money shall be expended in the improvement of roads, constructing bridges, and other public works;’’ that the County of Lawrence, in November, 1838, received her ratable proportion of said fund, amounting to eleven thousand one hundred and twenty-five dollars; that in 1841, the County of Rich-land was created, being formed in part from the County of Lawrence; that at the time of the formation of the County of Rich-land but a small portion of the fund received by Lawrence County had been expended; and that the legislature by an act entitled, “An act for the relief and benefit of Richland County,” approved Eeb’y 21,1843, provided as follows: “ That the County of Richland shall be and is hereby authorized to demand and receive from the County of Lawrence her proportion of said appropriation, according to the following terms and conditions: first, the census for the state of Illinois, for one thousand eight hundred and forty, shall be taken as the ratio of population in said counties; second, that part of the County of Richland which was taken off the County of Lawrence, shall be entitled to receive of the fund which the County of Lawrence received of said appropriation, a proportionate share, according to the relative number of inhabitants in said part of Richland County, compared with the inhabitants of the present County of Lawrence, as exhibited in the State census, for one thousand eight hundred and forty.” The act further goes on to provide that if any portion of said fund had been expended in that part of Lawrence County which was stricken off to Richland, that it should be deducted from the sum due Richland, that Lawrence should be entitled to pay the balance in notes; that Richland should bear her proportion of the losses which Lawrence might have sustained in loaning the fund; that the county commissioners of the respective counties should meet and make a settlement, and that in case the County of Lawrence refused to comply with the requisitions of the act, the County of Richland should be entitled to bring suit, &c.

The bill alleges a refusal by Lawrence County to comply with the foregoing act, and prays for a settlement and payment to Richland County of the sum due her under the provisions of said laws.

The Circuit Court dismissed the bill for want of equity. A single question has been submitted for the consideration of this Court, which is, the constitutionality of the “Act for the relief and benefit of Richland County."

It is insisted on the part of the County of Lawrence, that the legislature having omitted in the act creating the County of Richland to provide for a distribution of said fund, could not do so by a subsequent act; that by the receipt of the money it became - the property of Lawrence County for the use of the inhabitants thereof, and was beyond legislative control.

The provisions of the Constitution supposed to be violated are Sec. 10, Art. 1, of the Constitution of the U. S., and Sec. 16, Art. 8, of the old Constitution of Illinois, which inhibit the passage of any ex post facto law, or law impairing the obligation of contracts: also the 1st and 2d sections of the 1st Art .of the Constitution of this state, which provide for a distribution of the powers of government into three distinct departments, and that one department shall not exercise the powers belonging to either ot the others. Without determining whether it is competent for the legislature to control all the funds and projeerty belonging to a public municipal corporation, like a county, it is clear that they had the right to control this fund. The case showed that the greater portion of it, and more than sufficient to pay Rich-land County what might be coming to her, was still unexpended.

The law did not grant the money to Lawrence County or the inhabitants thereof, but simply appropriated it to be drawn by the county and expended in the improvement of roads, constructing bridges, and other public works. To hold that the money belonged absolutely to Lawrence County would be a misinterpretation of the act making the appropriation. As well might it be insisted, that the millions of dollars appropriated by the same act and directed to be expended in the construction of railroads throughout the state, belonged to the board of commissioners of public works, who were to make the expenditure.

The money in this instance was appropriated out of the funds received by the state for purposes of InternalTmprovement, and was directed to be drawn and expended by the county officers in a particular manner. Before its expenditure, we cannot doubt that the legislature had entire control over the fund, either to resume it altogether, or to change the purposes for which it was originally designed to be expended.

There was no contract here between the State and Lawrence County, either at the time the appropriation was made, or when the county received the money. The county was the mere agent of the state, for the disbursement of a certain amount of the money of the state as she directed.

That the state may make a contract with, or a grant to a public municipal corporation, which it could not subsequently impair or resume, is not denied; but in such case, the corporation is to be regarded as a private company. A grant may be made to a public corporation for purposes of private advantage, and although the public may also derive a common benefit therefrom, yet the corporation stands on the same footing as respects such grant, as would any body of persons upon whom like privileges were conferred.

Public or municipal corporations, however, which exist only for public purposes, and possess no powers except such as are bestowed upon them for public, political purposes, are subject at all times to the control of the legislature, which may alter, modify, or abolish them at pleasure. 2 Kent’s Com., 305; Bailey v. City of New York, 3 Hill, 531.

The case of Hampshire v. Franklin, 16 Mass., 76, so much relied upon in argument, was wholly unlike the present.

In that case the money sought to be recovered by the new county had belonged to the old one before the division; was never the property of, or received from the state, yet in that very ease, although the Court held that it was not competent for the legislature to create a debt from one corporation to another, it was at last decided that Franklin was entitled to recover, upon the ground of assent on the part of Hampshire, though the evidence of such assent as shown by the case is not, to say the least, very apparent.

Had the fund appropriated by the Internal Improvement Act of 1837, to be drawn by the counties through which no public works were to be constructed, been absolutely given to the counties, to be by them applied to any and all purposes, as it subsequently was by an act of the legislature passed in 1845, there would be much more plausibility in contending that the legislature could not afterwards resume the fund.

The act of 1845 cannot, however, have any bearing upon the case under consideration, because the portion of the fund claimed by Richland County had been previously directed to be paid to her by a specific act, which is not repealed or affected by the general law of 1845. The County of Pike v. The State, 11 Illinois, 203.

The other objection to the act for the benefit of Richland County is, that the legislature in its enactment undertook to exercise judicial powers.

The act does not profess to fix the amount that Richland County shall receive, and if it did, we do not know that it would be objectionable in a constitutional point of view; but it simply provides for the equitable distribution of a fund over which the legislature at the time had entire control, and authorizes the bringing of suit in case the County of Lawrence should refuse to settle as provided by the act. "We can see nothing of a judicial nature, or which the legislature might not properly do in the act in question.

The decree of the Circuit Court dismissing the bill is reversed and the cause remanded for further proceedings.

Decree reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Andrew Mather, Pltff in Error, v. The People of the State of Illinois, Defts in Error.
    ERROR TO MADISON.
    The death of the principal in any recognizance, after forfeiture thereof, but before judgment rendered upon the Scire Facias issued thereon, may be pleaded by the securities, in discharge of such recognizance.
    Elisha W. Dunn, on the eleventh day of February, 1850, entered into a recognizance before Charles Cook, a justice of the peace for Madison county, with Andrew Mather, the plaintiff' in error, as his surety, to appear at the next term of the" Madison Circuit Court, to answer a charge of having in his possession counterfeit coin, and apparatus for making the same.
    At the next term of the said Court, being the March term, 1850, an indictment for counterfeiting was found against said Dunn, and he failing to appear, the recognizance was forfeited, and a scire facias ordered, returnable to the next term. At the next term of the Circuit Court, being the August term, 1850, the said Andrew Mather appeared, and waived service of process (no scire facias having been served on him) and plead in discharge of his recognizance, that the said Dunn, since the last term of the Court, to wit, on the 18th day of April, A. D. 1850, departed this life. To this plea the prosecuting attorney interposed a demurrer, which was sustained by the Court, and a judgment rendered against Mather for the amount of the recognizance. To reverse this judgment, rendered by Underwood, Judge, at August term, 1850, Mather brings the case to this Court by writ of error, and assigns for error, that the Court below should have overruled the demurrer and given judgment for the people.
    Davis & Edwards, and J. Gillespie, for Pltff in error.
    The term bail applies as well to criminal as to civil proceedings. Jacobs’ Law Diet. vol. 1, p. 208; Bouvier’s Law Diet. vol. 1, p. 163-4; 8th Amendment to the Constitution of the U. S.
    The 10th section of the act concerning bail, E. S. of 1845, p. 83, applies to all cases, criminal as well as civil. The 8th, 12th, and 13th sections are expressly made applicable to civil cases. The 10th section extends by its terms to all cases.
    if) however, the above is not correct, it is still insisted th a the 196th section of the criminal code, E. S., p. 187, enters into and forms part of the recognizance, and gives to the surety the right to deliver up the principal, in discharge of his recognizance, at any time before the judgment is entered up against him upon the Sci. Fa. People v. Manney, 8 Cowen, 297.
    Where a man is prevented by the act of God, from the performance of an act or duty, he shall be discharged.
    P. Fowke, Dist. Att’y, for the people.
    To show that the statute relating to bail does not apply to criminal cases, 1 Scam., 25; 3 Gilman, 355; 3 U. S. Dig., p. 324, §24, §49, §83; 2 Supp. U. S. Dig., p. 693, §39; 3 Harrington, 333.
   Trumbull, J.

This case presents the question, whether the death of the principal, subsequent to a forfeiture of his recognizance, discharges the bail.

The statute declares, R. S., ch. 30, §196: “In all cases of bail for the appearance of any person or persons charged with any criminal offence, the security or securities of such person may, at any time before judgment is rendered upon scire facias to show cause why execution should not issue against such security or securities, seize and surrender such person or persons, charged as aforesaid, to the sheriff of the county wherein the recognizance shall be taken; and it shall be the duty, of such sheriff on such surrender, and the delivery to him of a certified copy of the recognizance by which such security or securities are bound, to take such person or persons, so charged as aforesaid, into custody, and by writing acknowledge such surrender, and thereupon the security or securities shall be discharged from any such recognizance, upon payment of all costs occasioned thereby.”

This law must be deemed to be within the purview of the recognizance, as much as if it were incorporated therein.

What, then, is the obligation which the security takes upon himself? It is; that in case the recognizance is forfeited, he will either pay the amount thereof, or surrender up the principal before judgment is entered upon the scire facias to show cause. The surrender of the principal within the time thus prescribed, is a matter of right, and the surety could clearly plead it in bar of proceedings upon the scire facias. Beers v. Houghton, 9 Pet., 330; Champion v. Noyes, 2 Mass., 480.

Such being the right of the security, it only remains to inquire, whether when by the act of God the principal is taken out of the custody of his bail, so as to prevent his being surrendered, it is equivalent to a surrender.

It is said in Co. Lit., 206, a: “If a man be bound by recognizance or bond with condition that he shall appear the next term in such a court, and before the day the conusee or obligor dieth, the recognizance or obligation is saved.” The reason givqn is, that “the bond or recognizance is a thing in action, and executory, whereof no advantage can be taken till there be a default in the obligor; and therefore in all eases where a condition of a bond, recognizance, &c., is possible at the time of the making of . the condition, and before the same can be performed, the condition becomes impossible by the act of God, or of the law, or of the obligee, there the obligation is saved.”

Under our law the obligation of the security may be regarded as executory, until the rendition of judgment against him upon the scire facias. He has till then to surrender the principal, but if the principal dies before that time and before surrender, that which it was possible for him to have performed in discharge of his obligation, is made impossible by the act of God. The forfeiture of the bond does not absolutely fix the liability of the security. He still has the right to a discharge upon the surrender of the principal, and ought not to be prejudiced by his death before his liability is absolutely fixed. At the common law, the bail in civil suits were said to be fixed, if the principal died after the return of non est inventus upon the writ of capias ad satisfaciendum issued against him, although before the time indulged by the rules of Court for his surrender had elapsed. If, however, the principal obtained a certificate in bankruptcy between the return of the ivrit and the time allowed for his surrender, the surety was entitled to his discharge.

In several of the States, under statutes authorizing a surrender of the principal in discharge of the bail at any time before judgment on scire facias against them, a similar distinction has been drawn as to the effect of the death of the principal and his discharge by operation of law. Champion v. Noyes, 2 Mass., 480; Olcott v. Lilly, 4 John., 407; Hamilton v. Dunklee, 1 N. H., 172.

In other States the Courts have recognized no such distinction, but have held that the death of the principal at any time before the expiration of the period allowed by law for his surrender, could be pleaded by the securities in their discharge. In the case of The Bank of Mount Pleasant v. Pollock, 1 Ohio, 27, it was held that the death of the principal could not prejudice the right of his bail, who had till the return of the scire facias to make the surrender. The Court say in that case: “The bail do not undertake for the life of the principal, but for his surrender if alive. They are discharged by his death. The limitation of the English rule is not adopted by the legislature, and the Court have no authority to insert it by interpolation.” So in Georgia, bail may surrender their principal in discharge of their liability, at any time before final judgment against them, but not after-wards ; and it is held, that the death of the principal before such judgment, discharges bail. Griffin v. Moore, 2 Kelly, 831. In this state it is expressly declared by statute, that “in all actions against bail, it shall be lawful for the bail to plead in bar of such actions, the death of the principal before the return day of the process against the bail.” R. S., ch. 14, §10.

This statute, however, has no application to proceedings against bail upon a recognizance in a criminal case. The only question therefore is, whether in the absence of any statute expressly authorizing it, the bail can plead in discharge of their obligation the death of the principal, when it occurs before the time for his surrender has expired.

The authorities all agree, that the discharge of the defendant by operation of law, would be a good defence for the bail in such a case, but some of them hold that his death would not. The reason for this distinction is not very obvious. Particularly when the person only of the debtor is discharged under an insolvent law, as was the case in 9 Peters, 330, before referred to, where it was expressly held that the bail could plead such discharge in bar of proceedings against them. It can make but little difference to the bail whether the principal is taken from his custody by operation of law or by the act of God. In either event he is beyond his control. Whatever might be the rule in proceedings upon bail bonds given in civil suits in the absence of any express statute upon the subject, we think it clear, that no such distiction should exist as to the liability of bail in a criminal case.

The ease of The People v. Manning, 8 Cowen, 297, was analogous in principle to the present. There the action was against the bail upon a recognizance of the sheriff to appear and answer for a contempt, and it was contended in that case, as in this, that the recognizance was analogous to that of bail in a civil suit, where the death of the principal after the bail are fixed, cannot be pleaded. The Court, however, held that the cases were not analogous. That the bail were not fixed by the failure of the sheriff to appear, and that his bail could plead his subsequent death in bar of a suit against them.

The bail in a civil suit undertake, that the defendant shall pay or surrender his body in execution, or that they will pay for him, while in a criminal case, the undertaking is simply that the accused will appear and answer. The accused may never be convicted of the offence, or if convicted he is discharged from human punishment quite as effectually by death, as he could possibly be of his debts by a certificate of bankruptcy. The liabilty of the principal undoubtedly became fixed by the forfeiture of his recognizance, but the statute gives his security further time within which to discharge themselves, and of the benefit of this provision they ought not to be deprived by the death of the principal.

The demurrer to the plea of the security was therefore improperly sustained, and for that reason, the judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    The Governor of the State of Illinois, for the use, &c., Pltiff in Error, v. Edward H. Ridgway, et al., Defts in Error.
    ERROR TO JEFFERSON.
    If a declaration contains one good count, a demurrer to the whole declaration will be overruled, although some of the counts are defective.
    A general assignment of a breach of covenant which is sufficient to apprise the defendant on what account he is sued, is admitted.
    A "breach which seeks to make a party liable for the failure of his principal, acting as clerk, to account for and pay over fines without alleging that the fines were ever paid to or received by the clerk, is insufficient.
    A party is not responsible upon his official bond, for failing to do what the law did not require.
    The sureties of any officer upon his official bond, conditioned for the faithful performance of the duties of an office, are liable for the performance of all duties imposed upon him, which come within the scope of his office, whether those duties were required by laws enacted prior or subsequent to the execution of the bond.
    The sureties of a clerk of the Circuit Court are liable for the failure of their principal to collect and pay into the county treasury all jury and docket fees, which by the use of ordinary diligence could have been collected.
    The presumption is, that when a docket fee has been taxed, that it was legally done.
    This was an action of debt, upon the official bond of a clerk of the Circuit Court brought against himself and his sureties, in the Jefferson Circuit Court, which was dismissed upon a general demurrer, heard before Denning, Judge, at the August term, 1849, of the Jefferson Circuit Court. The facts of the case necessary to a full understanding of the opinion are stated in it.
    S. Breese and L. Casey for Pltffs in Error.
    W. B. Scates and R. Wingate for Defts in Error.
   Trumbull, J.

This was an action of debt against Ridgway and his sureties, as clerk of the Circuit Court of Jefferson County, on his official bond.

The condition of the bond is, that the clerk shall “well and truly do and perform all the duties required to be performed by him in all things faithfully as clerk, &c.”

The declaration contains two counts, and under the second, a number of distinct breaches are assigned. The Circuit Court-sustained a demurrer to the whole declaration, and that decision is assigned for error.

If a declaration contains one good count, a demurrer to the same will be overruled, although there may be other counts which are defective. That the first count was good we entertain no doubt. It is objected on account of the generality of the breach, which is, that the said Ridgway, while clerk, received the sum of seven hundred dollars as docket fees, jury fees and fines in the several cases determined in the Circuit Court of Jefferson County, while he was clerk thereof, and did not pay over and account for the same.

These allegations were amply sufficient to apprise the defendants on what account they were sued, and it tvas wholly unnecessary to set forth the names of the parties and the particular cases in which the money was received. This general assignment is sufficient, and is admitted to avoid a cumbersome prolixity upon the record. Hughes v. Smith, 5 John., 168.

As this disposes of the case, it would be unnecessary to notice the questions involved in the assignment of breaches under the second count, but for the fact, that the case will have to be remanded and upon the trial those questions will necessarily arise and have to be determined. It becomes, necessary, therefore, to settle them now. These breaches set forth the cases in which docket and jury fees were taxed, and fines imposed, during the time that Ridgway was clerk, and allege that he failed and neglected to collect and pay over the docket and jury fees into the county treasury, or to account for and pay over the fines to the county commissioners’ court or the county treasury. None of these breaches allege that the fees or fines were ever paid to the clerk or came into his hands. As it respects the fines imposed by the Circuit Court, there is no statute making it the duty of the clerk of that Court to account for and pay them over, at all events, it is not his duty unless they are paid to him; of which there is no allegation in the breaches under consideration. Section 192, chap. 30, R. S., requires the clerk at the end of each' term to issue execution for every fine which may have been imposed by the Court during the term, and which remains unpaid; and section 171 of the same chapter declares that the fines, when collected, shall be paid into the county treasury, but by whom is not specified. In the absence of any statutory provision directing who shall pay over the money, it becomes the duty of the officer who collects or receives the fine to pay it into the county treasury, or account for and pay it over to the County Commissioners’ Court, as required by section 30, chap." 27, R. S. It follows that the breaches which seek to make the defendants liable for the failure of the clerk to account for and pay over fines, without alleging that they were ever paid to or received by him, are insufficient.

In determining as to the. liability of the defendants for the failure of the clerk to collect and pay over the docket and jury fees, it will be necessary to look at the laws upon those subjects, in force at the time the bond was executed, and during the time that the declaration charges such failure. The bond bears date November 29th, 1841, and the statute at that time required the docket and jury fees to be paid to the clerk, and that he should pay them over to the treasurer of the county: acts ’35—’SS. By virtue of other statutes then in force, the clerk was authorised to issue process for the collection of these and other fees, and on request of jury officer interested he was required to issue such process: Revised Laws of 1833, p. 298, sec. 8. It was also made the clerk’s duty by section 14 of the same act to issue fee bills in all cases of judgments upon which execution should issue, whether requested, or not. This continued, to be the law till September 10th, 1845, when sec. 19, chap. 56 of the Revised Statutes went into force, making it the duty of the clerk to collect and pay into the county treasury the docket and. jury fee. Till this act became a law, the clerk was not required to collect those fees, and it is clear that he is not responsible upon his official bond for failing to do, what the law did not require.

Several of the breaches assigned under the second count are, however, for failing to collect and pay over these fees, since it became his special duty to make the collection, and the question arises, whether he and his sureties are liable upon his official bond for a failure to comply with a duty imposed upon him by a law passed subsequently to the date of the bond. This is an important question. It is a well settled juinciple that the contracts of sureties are to be construed strictly, and that their liabilities are not to be extended by implication, bejmnd the terms of the obligation thejr have entered into. If the collection of the docket and jury fees was an entire new duty, not usually appertaining to the office of clerk, which had been imposed upon him subsequent to the date of the bond, and having no connection with his previous duties, there could be no question that his sureties would not be liable for his failure to perform it. Reynolds v. Hall, 1 Scam., 35; The People v. Moon, 3 Scam., 123.

But such was not the character of the new duty imposed upon the clerk in this instance. The clerk had previously been authorized to collect, and required to receive the docket and jury fees and pay them over to the county treasurer. These sureties undertook that he should faithfully perform all the duties required to be performed by Mm as clerk; that is, they became responsible for the faithful discharge of all duties properly appertaining to the office, whether those duties were prescribed by law at the time they signed the bond, or should afterwards be imposed upon him.

There was no implied obligation on the part of the State, at the time the bond was entered into, that the laws prescribing the duties of the clerk of the Circuit Court should remain unchanged during his continuance in office, which at that time was for an indefinite period often extending to life. On the contrary, the sureties, in view of the frequent legislation required, by the everchanging circumstances of the country, must have anticipated that the duties of clerks would- be liable to bo modified and changed,, from time to time, as-the public interests might require. They must have entered into the bond with this understanding, and by the very terms of the obligation they bound themselves to the faithful performance, by their principal, of all the duties-required to be performed by him in the capacity in which they went his security. The requirement of the law, that the clerk should collect that which was before to be paid to him, and which he was before authorized to collect, was not the imposition of such a new duty, disconnected with any duty previously enjoined upon him,, as to discharge his sureties; on the contrary, it was the imposition of a duty entirely consistent and in perfect harmony with what was before required.

In the case of the Bank of Mil. and Brandywine v. Wollaston, 3 Harring, 90, it was held, that the sureties of the cashier of the bank were not discharged by an increase of the capital stock of the bank, subsequent to the date of the bond. The Oourt say, “ The sphere of his duties was the same, although the subject matter of his charge might be increased, which is no more than what happens from day to day from fluctuations in the amount of deposits.”

It was decided in the case of White v. Fox, 22 Maine, 341, which was an action against the clerk of a court and his sureties upon his official bond, that a provision of law enacted subsequent to the date of the bond, by which it was declared in the case of a failure to pay over money for which the clerk was accountable, he should pay interest thereon at the rate of twenty-five per cent.,” did not discharge the sureties. It is said by the Court in that case: “ The sureties were bound for the faithful performance of the duties of the office, that is, for tlje faithful performance of such duties, as the laws for the time being should require to be performed by the clerks of the judicial courts. If the sureties in the official bonds of persons holding offices created by laws, were to be discharged by every change of the laws relating to their duties, it would in these days of ever frequent change he to little purpose to trouble the officers to obtain sureties. There is little of similarity between such cases, and those arising out of offices or trusts, where duties are assigned or regulated by contract.”

So in Kentucky it has heen held, that a sheriff’s bond conditioned that he will execute the duties of his office, extends to duties imposed by statute after the execution of the bond. Bartlett v. The Governor, 2 Bibb, 586.

The cases of Portage Co. v. Wetmore, 17 Ohio, 330, and of Kindle v. The State, 7 Blackf., 586, maintain the same doctrine.

The principle deducible from these cases taken in connection with another class of cases in which it is held, that if the creditor or obligee does any act varying the terms of the obligation the surety is thereby discharged, is this, that the sureties of an officer upon his official bond are liable for the faithful performance of all duties imposed upon such officer, whether by laws enacted previous or subsequent to the execution of the bond, which properly belong to and come within the scope of the particular office, and not for those which have no connection with it, and cannot be presumed to have entered into the contemplation of the parties, at the time the bond was executed.

It is the opinion of the Court, that the defendants are liable for the failure of Ridgway to collect and pay into the county treasury all jury and docket fees, which by the use of ordinary diligence could have been collected, accruing while he was clerk, and subsequent to September 10th, 1845, the time when it was made his duty by law to collect such fees, and that they are not responsible for his failure to collect the jury and docket fees which were taxed prior to that date.

It was objected upon the argument that the declaration should aver that the docket fees claimed were legally taxed, since there are some cases in which no docket fee is allowed by law. This objection is not tenable.

The presumption is when a docket fee has been taxed, that it was legally done. If such was not the fact, it is matter of defence for the defendants to show.

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

Judgment reversed.


author: Caton, J.

text:
    Arba Nelson, Pltff in Error, v. Benjamin Godfrey, Deft in Error.
    ERROR TO MADISOK
    is a familiar principle, that when .a person exercises or enjoys a peculiar privilege productive of benefit to him alone, the law requires that he shall exercise extraordinary car.e to so use or enjoy such special privilege, that no injury whatever chalí r.esult through such use or enjoyment, to other parties.
    This was an action of trespass on the case, brought by plaintiff in .error against the defendant in error in the Madison Circuit Court. The declaration contained several counts, as follows:
    The first count states that plaintiff was possessed of a warehouse, in the city of Alton, containing goods, and merchandise; that defendant, being possessed of a lot near said warehouse, did, ¡on an subsequently to the 1st day of May, 1850, dig a cellar upon said lot, in so careless and negligent a manner, that on the 23d of May, 1850, a large quantity of rain water flowed into the same, and from thence down upon the premises of plaintiff, thereby greatly injuring the said merchandise, &c. The second ¡count differs from the first, in stating, that defendant dug a cellar under the sidewalk, on the west side of State street, and near plaintiff’s warehouse, in so careless and negligent a manner, that the water flowed into it, and thence upon plaintiff’s premises. The third count differs from the previous, in stating that, defendant dug said cellar, in the sidewalk aforesaid, the same being a public highway, in said city—wrongfully and unlawfully; but not alleging any negligence. The fourth count differs -from the others, in stating that defendant did stop up, and entirely obstruct the gutter on the west side of State street, near the said warehouse of plaintiff; the said gutter being a public gutter, in which the water was accustomed to run, by means of which stoppage and obstruction, the water ran down upon plaintiff’s premises and merchandise. The fifth count states, that there was, on the west side of State street, aforesaid, and adjoining the sidewalk thereon, the same being a public highway in said city, a public gutter, or passage-way, for draining off the rain water which might flow down said street, and in which it was accustomed to flow, and of right ought to flow; that said gutter was paved on the bottom with stone, and on the side next the sidewalk, there was a line of curb stones placed, to protect and strengthen the sidewalk and gutter; that defendant caused the pavement to be removed from a part of said sidewalk, near plaintiff’s warehouse, and did dig a cellar, in and under said sidewalk, and extending to said curbing stones and gutter, in so negligent, improper, and careless a manner, that the said curb stones were left without sufficient earth to support them, and were so much injured and weakened thereby, that the rain water, running down the said gutter, forced, and washed out said curb stones, at the place where said cellar was dug, and thence flowed into plaintiff’s warehouse, &c. The sixth count states, that there was, on the west side of State street, adjoining the sidewalk, the same being a public highway, a gutter for draining off the water; which was paved at the bottom, and a line of curb stones at the side of the sidewalk, so as to protect and strengthen said sidewalk and gutter; that the defendant caused the pavement to be removed from a part of said walk, near to plaintiff’s warehouse, and dug a cellar in and under the sidewalk, and extending to the curb stones and gutter, in so careless, improper, and negligent a manner, that the curb stones were left without sufficient earth to support them, and were so much injured and weakened, that the water forced, and washed out said curb stones, where the cellar was dug, and thus flowed down upon the warehouse of plaintiff, &c.
    Damage of plaintiff, $1000.
    The defendant plead the general issue.
    The cause was tried before Underwood, Judge, and a jury, at August term, 1850, and resulted in a verdict for the defendant. The plaintiff moved for a new trial, which was denied. A bill of exceptions was taken, and the cause brought to this Court by writ of error.
    Billings & Parson and Davis & Edwards, for Pltff in error.
    The maxim, “sic utere tuo ut alienum non leudas ulterum,” is of universal application, and in this case applies with peculiar force. Sutton v. Clarke, 1 Com. Law Rep., 500; Hooker v. The New Haven & Northampton Company, 14 Conn., 146; Brighton v. Carter, 18 J. R. ,404; Thurston v. Hancock et al., 12 Mass., 220 and note; Runnells v. Bullen, 2 N. H., 532; Bush v. Brainard, 1 Cowen, 78; Law of Easements, by Gale & Whatley, pp. 163-4, 168-9, 175, 180, 184; The King v. The Com’rs of Sewers, 15 Com. Law Rep., 239; Broom’s Legal Maxims, 25; Law Library, pp. 90, 118, 122; Clark v. Lake, 1 Scam., 229. A purchaser of a town lot, designated upon a recorded plat, only acquires a title to the land included within the actual limits of the lot as designated. The Board of Trustees v. Haven et al., 11 Ills. 554.
    W. Martin, J. Gillespie, and E. Keating, for Deft in error.
    In actions for damages where the matter is peculiarly proper for the consideration of a jury, their verdict should not be disturbed, unless at first blush, it appears to be erroneous, and ought not to be sustained by the evidence presented.
    The verdict here should be sustained. The evidence is conflicting as to whether the defendant was chargeable with negligence in using the street, the use of which caused the damage. Although the weight of testimony is, as we think, in favor of defendant.
    All the law applicable to the case was given to the jury, in the instructions, hence a new trial should not be allowed.
   Caton, J.

This action, was brought to recover damages resulting to the plaintiff by reason of an excavation for a coal cellar, made by the defendant, in the sidewalk in front of his premises on State street, in the city of Alton, through which the water from the gutter of the street passed into the defendant’s cellar, and thence through several other cellars, into that of the plaintiff, and did the damage complained of. We think the plaintiff was clearly entitled to recover, and had the jury understood the law as applicable to the case, they could not have avoided rendering a verdict in his favor.

The case shows that in April last, the excavation was made in the sidewalk for the coal cellar, by which all of the earth was removed from behind the curbstone which formed that sjde of the gutter next the sidewalk. The curbstone was at first supported in its place by wooden props, and afterwards an eighteen inch wall was built up on the side of the excavation next to the street, so that a part of the curbstone rested upon the edge of the wall, which was extended up from four to eight inches against the back or lower side of the curbstone, which was two feet in ■depth. This wall was sufficient to support the curbs tone in its jolace when no extraordinary pressure was applied to it from without In this condition the work upon the wall was suspended. This wall might have been raised to within four inches of the top of the curbstone in one day, when it would have been ready to have received the flagging for the sidewalk, and when it would have afforded a perfect support to the curbstone, and effectually secured it against accident. The work was allowed to remain in this insecure condition for ten days or more, when an unusually heavy rain occurred in the night time, and the water rushing down the gutter in large quantities, undermined and forced in the curbstone, and even prostrated the wall, which had been erected partially under and back of it. All the witnesses agree, that if the excavation had not been made, or if the curbstone had been made sufficiently secure, the water would not have got into the cellar, and no damage would have resulted.

We are not prepared to admit, that the defendant could, by reason of his ownership of the adjoining property, claim the absolute right to take .up the sidewalk and extend his coal cellar •under it, but as such a privilege is of great convenience in a city, and may with proper care be exercised with little or no inconvenience to the public, we think that authority to make such «cellars may be implied iu the absence of any action of the corporate authorities to the .contrary, they having been aware of the progress of the work. But while we infer a license thus to use a part of the public street, it is on the condition that the person doing so, shall use more than ordinary care and expedition in the prosecution of the work. Neither the public or other individuals can derive any possible advantage from such a use of the sidewalk, but it is solely for the defendant’s benefit, and he must see to it that he does not endanger the safety of others, and •.that he incommodes the public as little as possible. It is a familiar principle, that when one-enjoys a privilege as a matter of favor, in consideration that he alone can enjoy the benefit, he is required to use extraordinary care in the exercise of the privilege. A familiar instance of the application of this rule, is the bailment of a horse. If the horse is loaned without compensation, the bailee is bound to take extraordinary care of the horse, but if he pays for .the use of the horse, he is not responsible for Ms loss, if ordinary care is exercised. In tMs case but for the favor extended to the defendant, the plaintiff would not have sustained this loss. The defendant alone could reap a benefit, and he ought to be responsible for all damages which might have been avoided by special vigilance and care. Here is a palpable case of the want of even ordinary care. When the work of one day would have secured everything from all danger, he suffered the work to remain in an unfinished and insecure condition for nearly two weeks. It is no excuse that he thought it secure, when he must have known that there was a liability, if not a probability of injury from it. A week before the accident occurred, the defendant was admonished of the danger in case of a heavy rain, which he admitted, and promised to provide against it. TMs he neglected to do; and upon every principle of law and justice he ought to suffer the loss, rather than have it fall upon an innocent party, who could not derive any possible benefit from the work, and who had no control over it. Before the defendant disturbed the sidewalk at all, he should have had all the material on hand and a sufficient number of workmen to have finished it in the shortest practicable time. Had he done tMs, private property would not have been endangered, and but little inconvenience would have resulted to the public.

The judgment must be reversed with costs, and the cause remanded for further proceedings.

Judgment reversed,


text:
    Darius Greenup, Appellant, v. William Stoker, Appellee.
    APPEAL PROM WASHINGTON.
    A sale of a tract of land upon execution will not be set aside, merely because it was sold at a sacrifice, and was not offered in sep' rate parcels; something should be shown to satisfy the Court, that the land sold, was susceptible of advantageous division, and that the sale was injudicious.
    In case of a vacancy in the office of sheriff, the coroner may go on and finish the execution of a process, directed to the sheriff.
    This bill was filed, in the Washington Circuit Court, by William Stoker, praying that the sale of certain lands might be set aside as being unlawful and oppressive.
    The bill sets forth, that a judgment for costs was rendered against Stoker for the sum of $106 20, upon which execution was issued, and placed in the hands of an under sheriff', who levied on the south east quarter of section 35, Town 1 south, range 3 west, which execution was by the under sheriff placed in the hands of the coroner, who proceeded to sell the land to the highest bidder, under the levy made by the under sheriff The land being 160 acres more or less, was offered in a body, and struck off for the sum of ten dollars, by the under sheriff who made the levy. That the land sold is good timbered land, upon which there is a good rock quarry, and that the land was worth $800 00. That no money passed from the purchaser to the coroner, but that the purchaser applied the bid to fees due him as under sheriff. That he sent ten dollars to his brother, Jacob Stoker, for the purpose of having the land redeemed, hoping that his brother would pay the interest in addition and redeem the land, which he did not do. That complainant was absent in Mexico. That the sheriff who succeeded the sheriff that made the levy, executed a deed for the land, within fifteen months from the date of sale, to wit in 14 months and 4 days, to a brother of the purchaser. That the father of complainant offered the purchaser of the land $20 00, to obtain a title therefor.
    Greenup admits generally the allegations of the bill, says that the purchaser was not under sheriff at the time of the purchase of the land, and that the title of Stoker to the land was distrusted, and that it was only worth about $300 00; that the sheriff resigned and thereupon the coroner was authorized to act.'
    The cause was heard upon bill, answer, and replication, and oral proof, by Underwood, Judge, at October term, 1849, and a decree entered setting aside the sale, &o. The respondent, Greenup, prayed an appeal, and assigns for error, the want of equity in the bill, and that decree should have been for the appellant.
    G. Trumbull, for appellant.
    G. Koerxer, for appellee.
   Caton, J.

Another objection was taken upon the argument. And that is, that the coroner had no authority to make the sale. But the bill is not framed with a view to obtaining relief upon that ground. The coroner was authorized to act as sheriff, in case of a vacancy in that office, and there is no averment in the bill that there was a sheriff, nor is it even averred in any way, that the coroner was not authorized to make the sale. Att’y G-en’l v. The Mayor of Norwich, 2 Mylne & Craig, 407, (14 Eng. Ch. Reports.)

At any rate, it was insisted, that the coroner could not go on and complete the execution of a process, which had been directed to, and partly executed by the sheriff, before the vacancy occurred. By Chap. 99, Sec. 18, of R. S., it is provided, “In case of a vacancy in the office of sheriff, by death, resignation, removal, or otherwise, the coroner shall do and perform all the duties pertaining to the office of sheriff,” &c. We think by a fair construction of this statute, the coroner may go on and finish the execution of process directed to the sheriff, the same as a new sheriff might, who succeeds the old one, by an election.

The decree of the Circuit Court must be reversed with costs, and the suit remanded, with leave to the complainant to amend his bill, and for further proceedings.

Judgment reversed,.


author: Treat, C. J.

text:
    Richard S. Adams, Pltff in Error, v. Frederick Miller et al., Defts in Error.
    ERROR TO JOHNSON.
    The statute requiring security for costs to be given before commencing penal actions, applies to actions of that character, prosecuted before justices of the peace.
    If security for costs should not be given, a motion should be made to dismiss before the justice; if refused by the justice, it may be renewed in the Circuit Court; but being of a dilatory character, such an objection must be presented on the first opportunity.
    This was an action commenced before a justice of the peace of Johnson county, to recover a penalty for a failure on the part of the defendants in error to discharge their duties as public millers, under the act regulating mills and millers. A judgment was rendered by the justice for a peralty of five dollars, against the defendants below, by default. The defendants below prayed an appeal to the Circuit Court of that county.
    In the Circuit Court, the defendants below appeared, and entered a motion to dismiss the suit, because the plaintiff below had failed to give security for costs, before commencing suit. The plaintiff thereupon moved for leave to file a bond nunc pro tunc. The Circuit Court refused the latter motion, and dismissed the suit upon the motion of the defendants. The plaintiff below prosecutes this unit of error, and assigns for error, the decision of the Circuit Court, in refusing to permit him to file security for costs nunc pro tunc, and in dismissing the suit.
    The cause was tried by Denning, Judge.
    J. Jack, for Pltff in error:
    Urged that security for costs should only be given in penal actions, before the Circuit and Supreme Courts. R. S., p. 126: Allen v. Belcher, 3 Gil., 594. That suit could not be dismissed, unless it appeared that the plaintiff was a non-resident. That the statute under which the action was brought is remedial as well as penal. Hyde v. Crogan, Doug., 673; Wynne v. Middleton, 1 Wilson.
    B. E. WiKG-ATE, for Deffcs in error:
    This being a penal action, the plaintiff should have filed a bond for costs, at the time of the commencement of the suit before the justice. R. S., p. 126, sec. 1; 5 Gil., 559.
    The judgment having been rendered by default against the defendants in error, in the justice’s court, they had a right to move to dismiss the suit on appeal in the Circuit Court. The defendants could not have waived their right to dismiss in the Circuit Court, since they did not appear before the justice, and the return on the summons before the justice, not being sufficient to give the justice jurisdiction over third persons, which return is in these words and figures: “Served on the defendants on the 9th instant.”
   Treat, C. J.

. Adams brought an action against Miller and others, before a justice of the peace, to recover a penalty of five dollars, for a violation of the statute respecting mills and millers. Process was served on the defendants, and failing to appear before the justice, judgment was rendered against them for the amount of the penalty claimed and costs. The defendants prosecuted an appeal to the Circuit Court, where the suit was dismissed, on their motion, because the plaintiff omitted to give security for costs. On the principle of the case of Robertson v. The County Commissioners, 5 Gilman, 559, the plaintiff should have given security for costs before the commencement of the action. At the time of the passage of the act of the 10th of January, 1827, which is incorporated into the 26th chapter of the Revised Statutes, justices of the peace had no jurisdiction of this kind of actions. Bowers v. Green, 1 Scammon, 42. But the jurisdiction was subsequently conferred on them. R. S., ch. 71, §15. And after it was conferred, the statute requiring security for costs to be given in penal actions, applied to actions of that character prosecuted before justices. If the defendants had raised the objection before the justice, the suit should have been dismissed; but it came too late for the first time in the Circuit Court. If urged before the justice, and overruled by him, it might have been renewed in the Circuit Court. Robertson v. The County Commissioners, supra. The objection is of a dilatory character, and must be insisted on at the earliest opportunity. The defendants, by neglecting to make the motion before the justice, waived the right to interpose it in the Circuit Court.

The Circuit Court erred in dismissing the suit; and the judgment must be reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.


text:
      Benjamin Godfrey, P1tff in Error, v. the City of Alton, Deft in Error.

      ERROR TO MADISON.

      If the owners of land agree upon a place, and make a survey, and lay off ground for public use, as a street or landing, aod make sales in reference thereto, it amounts to a dedication of such ground to the public. A map is not essential to the validity of the dedication.

      The statute of frauds does not apply to the dedication of ground to the public.
    A dedication may be made b^ grant, or written instrument; it may be evidenced by acts and declarations without writing, no particular form being required to establish its validity, it being purely a question of intention.
    A dedication may be made by survey and plat alone, without any declaration, either oral or on the plat; when it is evident from the face of the plat that it was intended to set apart certain grounds for the use of the public.
    A dedication must be understood and construed, with reference to the objects and purposes for which it was made.
    All accessions to a public landing, must necessarily attach to and form a part of it.
    When an easement is granted to the public, upon the margin of a navigable stream, the right to use and treat it as a landing is undoubted.
    If the banks of a navigable river are dedicated, the dedicator has no interest in the bed of the stream which he can reserve, to the prejudice of the public easement over it.
    After verdict found upon several pleas, one may be withdrawn, the defendant being o entitled to a judgment, if the verdict can be sustained on any one of the pleas. An erroneous verdict as to one plea does not vitiate the finding upon the others.
    This was an action, trespass quare clausum freget, brought by Godfrey against the City of Alton.
    The declaration alleges that defendant broke and entered the close of plaintiff, described as follows: “ A certain lot of land lying within the corporate limits of the city of Alton, and situated within Godfrey’s and Gilman’s addition to the town, now city of Alton; being in front of block number ninety-two, and separated therefrom by a forty foot street, and bounded on the North by said forty foot street; on the South, by the Mississippi river ; on the East, by the lot known as the Ferry lot, at the foot of State street; and on the West, by the land known as the Penitentiary Tract, in said city of Alton.”
    Damages, three thousand dollars.
    1st Plea—Not Guilty.
    '2d Plea—That the close was a public highway.
    3d Plea—Liberum Tenementum.

    4th Plea—Dedication of said close, by Winthrop S. Gilman, to the public street.
    5th Plea—Dedication of said close, by Winthrop S. Gilman and Benjamin Godfrey.
    Issues to the Country upon all the pleas.
    Upon the trial the defendant admitted the commission of the acts, upon the premises, as set forth in the declaration; and it was proven that the damages were at least twenty-five dollars.
    The plaintiff proved title to the fractional quarter section extending to the river, upon which the locus in quo is situated.
    Abraham Breath, witness for plaintiff, testified, that Godfrey and Gilman occupied from 1832 to-1811 the warehouses situated upon lots 1 and 2, in block 92, and in front of the locus in quo ; used the land in front of said block—-it being the locus in quo— for receiving and shipping goods from and on board steamboats, in common with others. That for the last two years past, Capt. Lamothe had wood upon the locus in .quo, in several places; that he occupied the same by consent of the plaintiff.
    Pork-packers used the same for shipping; Lamothe had his wood on the premises for nearly two years; the porlc-packers had their barrels thereon from four to six weeks at a time; that Lamothe held the premises under the plaintiff; that the premises were used as a public landing, and by all persons; that the space between block 92 and the river, has been covered over with stone hauled by the State of Illinois.
    The defendant produced George Smith, as a witness, who testified, that he had known the property in dispute for the last 30 years. That in 1832, most, if not all the land in dispute, was in the Mississippi river. There was then between -10 and 60 feet of land between the warehouse on block 92 and the river, at low stage of water ; at high stages of water it might have come to the warehouse. That in 1832, and since the witness had 0 known the locus in quo, it had been used by the jeublic as a steamboat landing, passage for drays, and other purposes, without interruption, until plaintiff commenced building. Buildings were commenced upon other lots in block 92, in 1835 and ’36. That the occupation by the plaintiff, of the premises in question, by a building, would diminish the value of the opposite property in block 92. The landing in front of block 92, has been exteilded outwards, towards the river, by natural and artificial means, by the State and City.
    At the date of the survey testified to by Spaulding, the title was shown to have been in Godfrey & Gilman, who had sold portions of block 92.
    Lewis J. Clawson, testified, that he had known the property in dispute, since 1831; that it has continued to be a public highway. In the year 1831 the space between block 92 and the river, was Lorn 30 to 50 feet. The first building on the west end of the block was erected in 1831; a building adjoining was put up in 1833, and a third in 1835; all the other buildings upon the block were erected in 1835 and 1836. That at this time, 8 lots of the 12 composing the block, are built upon. The levee in front of block 92, has been filled out into the river 40 or 50 feet, and raised 8 or 9 feet; part of which was done by the State of Illinois and part by the city of Alton; that it is covered with stones—a kind of rough McAdamizing; that it has been used for a street and landing. In 1832 all the ground in front of block 92 was called Front street.
    In the year 1832 the land in front of block 92 was not over 35 feet wide; it is now 60 or 80 feet wide—about 40 feet has been filled out. Godfrey & Gilhnan occupied a building on block 92, from 1831 to 1841; they were forwarding, commission, and selling merchants. They filled out a part of this landing in front of their store, for a steamboat landing; they threw out the spawls from their building in 1833, and that was the most convenient place to put them; and they used the same until they quit business in 1841, and so did others.
    Samuel Avis, testified, that he had been acquainted with the locus in quo for 19 years, and during all that time it has been occupied as public property, for road and hauling; block 92 near the river, when witness first knew it, except near the west end, a rock run out into deep water; this rock is now under the landing. In the year 1837, a line 40 feet south of block 92, and running parallel thereto, would have been in the river. In the year 1837, the buildings were 30 feet from the river; they are now 70 feet therefrom; in 1832, they were 20, perhaps 30, feet distant. Godfrey & Gilman filled out a part of this land when building; they were merchants from 1832 until 1841, when they quit business; they used the landing in common with others; other persons building between Godfrey & Gilman, filled in, in front of their lots; a 66 foot road would in 1837 have taken 20 or 30 feet from the buildings.
    William Hayden, testified, that he had known the premises in dispute, 18 years, occupied and used by every body as a public landing. When Lamothe was ordered off by the defendant, he asked permission of the city to continue his wood thereon. In the years 1836 and 1837, a fine 40 feet south of block 92, would have been in the river; and at an ordinary stage of water, boats would have landed in the 40 foot street. Godfrey & Gilman built a bulk-head of stone, on a part of the premises.
    The tax books of the county of Madison, for the years 1844,

      Mo, M6, M'7, and. M8, were produced in. evidence to show that said land had not been listed by plaintiff when called upon, as above, for a list of his property.
    D. A. Spaulding, testified, that he had been acquainted with the premises for 30 years. In 1832, Alton was extended and laid off by witness, at the request of the owners, Russell, Gilman, Godfrey, and Hayden. Russell came after witness, and he, and the others in interest, agreed on the plan, and witness made the survey. Front street was located as far up as the Penitentiary, The front line of Godfrey & Gilman’s warehouse, was to be on the north line of Front street; and we measured out to see how far it was to low water. Front street was to extend into the river. It was laid out for a public highway and landing. The matter was talked over. It was anticipated and understood, that Front street was to be extended out into the river. Gilman made the block 92 as near to the river as he could. Witness thought he was very anxious to crowd out into the river, and make the purchasers of lots fill up. Opposite to block 92, and between that block and the river, the ground has been used as a public landing ever since I have known it. The space between the north line of Front street and the river was in some places 20, and in some 30 feet. It would not average more than 25 feet, A street along there 66 feet wide from the river, in 1833, would extend some 40 feet into the lots, as they now exist. In the fall of 1832, the county road on this ground, a little time after this survey, was to run where the points were fixed, on the’ corner of lot 1, in block 92, and extend 50 feet to the river.
    Joseph Burnap, testified, that he made the plot of Godfrey and Gilman’s additions to the town of Alton, in the fall of 1836, embracing block 92, and at the time he made the survey, most of the buildings now on block 92 were erected. (See plat of block 92.)
    L. J. Clawson, testified, that the City put on rock on premises, but he did not know who paid for it.
    Verdict for the defendant upon the 1st, 2d, 3d, 4th, and 5th pleas. Thereupon defendant waived a verdict upon the 3d plea of liberum tenementum, and leave was given to the defendant by .the Court to withdraw said plea. Plaintiff moved the Court for a new trial.
    The cause was heard before Underwood, Judge, and a jury, at August term, 1850, when a judgment was rendered for the defendant. Godfrey brings the case to this Court by writ of error.
    Billings & Parsons and William Martin, for Pltffin error.
    1. The Court had no power to order a waiver of the verdict on the issue of liberum tenementum. 10 Bacon’s Abridgment, Title Verdict, 362; 1 H. Blackstone, 79; 10 N. Hampshire, 304; 19 Wend., 628.
    2. The possession or enjoyment on which a prescriptive title is founded, must be open, peaceable, continued, and unequivocal; it must also be adverse, of a nature to indicate that it was claimed as a right, and not from indulgence, or of any compact short of a grant. 2 Greenleaf’s Cruise, 222 and note 1; 14 Mass., 49; 2 McCord, 445; 5 Condsd. Rep., 243 and note; 10 Mass., 151, 407; 4 Pick., 222; 9 Pick., 251; 5 Pick., 131; 11 Pick., 217; Angel on Limitations, 442.
    3. A dedication in specific terms, on the recorded plat; of a town, is not to be affected by parol proof of the intention of the donors. Brown v. Manning, 6 Ohio, 129; Cincinnati v. White, 6 Peters, 441; Dummer v. The Board of Selectmen, &c., 1 Spencer, 86; 8 B. Munroe, 252.
    It is contended in this case that the evidence was not sufficient to show that Godfrey & Gilman intended to dedicate the land in controversy to the public. There are two modes of establishing by evidence the fact of dedication;' one by length of public use, the other, by some unequivocal act—showing that the owner intended to appropriate the land to public use. 6 Peters, 504; 5 Taunton, 127; 7 Com. Law Rep., 158; 11 Metcalf, 241; 24 Pick., 71, 80; 3 Metcalf, 239.
    Where the width of a street, marked by right lines, is given in a town plat, surplus land, between the street and the low water mark of a river, is not thereby dedicated to the use of the town. McLaughlin v. Stevens, 18 Ohio, 94; Barclay et al. v. Howell’s Lessee, 6 Peters, 498; Conner v. The President and Trustees of New Albany, 1 Blackf., 43.
    D. J. Baker, J. Gillespie, and E. Keating, for Deft in error.
    The verdict was regular, and the Court properly allowed the defendant to waive the verdict on the plea of liberum tenementum. 10 Bacon’s Ab., 328, 349, 330; Sutton v. Dana, 1 Metcalt, 382; French v. Hanchett, 12 Pick., 15; 19 Pick., 25; Jones v. Kennedy, 11 Pick., 125.
   Caton, J.

We shall rest our decision, upon the single claim of dedication, arising from the survey made by Spaulding, without investigating the various other claims insisted upon in behalf of the City.

Spaulding swears, that in 1832, Alton was extended and laid off by him at the request of the several owners, who agreed upon the plan, and that he made the survey. He surveyed block 92, and Front street. He says, “Front street was to extend into the river. It was laid out as a public highway, and landing. The matter was talked over.” Front street extended from block ninety-two, down to and into the river. Ho pretence seems to have been made at that time, nor until several years after, of any intention by Godfrey and Gilman to reserve to themselves, any thing south of Front street. They went on and made sales in block ninety-two, in reference to, and recognizing that street, and improvements were also made upon that block. This clearly amounted to a dedication of the space, thus made common for a street and public landing, according to the plan agreed upon among the proprietors, and the survey of Spaulding. The street and landing were laid off, and the owners of the soil proclaimed the purposes to which it should be devoted. All the other proprietors of the town, with whom the plan was agreed upon, as-well as those who purchased with reference to that plan and. survey, paid a consideration for the dedication, and had a direct, interest in insisting upon its perpetuity. It is true, that it does-not appear that any map was made of this survey, but that was not essential to the validity of the dedication. The statute of' frauds does not apply to the dedication of ground to the public.. Such a dedication may be made by grant, or other written instrument, or it may be evidenced by acts and declarations, without writing. Ho particular form is required to the validity of á dedication. It is purely a question of intention. A dedication maybe made by a survey and plat alone, without any declaration,, either oral or on the plat, when it is evident from the face of the-plat, that it was the intention of the proprietor, to set apart certain grounds for the use of the public. An examination of the cases referred to on the argument, will show, that dedications have been established in every conceivable way, by which the intention of the dedicator could be evinced. And great importance is frequently attached to the fact, that investments or improvements have been made, either by individuals or the public, in reference to a dedication, and with the knowledge of the proprietor.

A dedication must be understood and construed, with reference to the objects and purposes for which it was made. This is peculiarly the case with a public landing upon a navigable water course. That is necessarily inseparable from the margin of the water, however that may fluctuate. Without this, its enjoyment would be precarious, and often destroyed. All accretions to a public landing, must necessarily attach to and form a part of it, otherwise we should- have the novel spectacle, of a public landing, separated ftom the water, as is in fact attempted in this case. Such a proposition does not require refutation.

The only question that arises here is, -was it the intention to make this a public landing? That was the declared intention of the owners of the land, and their agreement with the other proprietors. But in the absence of any such expression, I should be equally clear, from the manner in which the ground was laid off, that it was for a public landing, as well as for a street. On the north side, it was bounded by block ninety-two, and on the south by the river, varying in width according to the meanderings of the stream. This stream was a public highway, in contact with this, another easement is granted and the very location of it, shows that it was designed for the purpose of lading and unlading freight and landing passengers from the water communication, as much as the laying out of an interior street, would show that it was designed for the use of travellers by land. The street and landing thus laid off, was subsequently—as it had been previously—-used and enjoyed by the public, and was improved and extended into the river, both by natural accretions, and by artificial means, and no pretence of any claim appears to have been set up on the part of any one, adverse to the full enjoyment of the public landing, until 1836, when the addition of Godfrey-& G-ilman to the town of Alton was platted by Bur-nap. By the marks upon this plat, we see for the first time, a claim set up to a portion of the bed of the stream, in front of this landing. The landing has since been filled up and extended into the river, so that it now covers the place designated on that plat as claimed by the proprietors of that addition. For this claim we can see no pretence whatever. As we have already seen, long previous to this time, the entire space between block ninety-two and the river, had been dedicated for a street and for a public landing, and to separate such a dedication from the river would destroy it.

But even if there had not been any previous dedication, we think the same construction should be given to the plat made in 1836. At that time, Front street, as laid out on that plat, covered the margin of the river and extended twenty or thirty feet into the stream, and it was beyond this, that a claim was indicated, of the premises in question.

When an easement is granted to the public, upon the margin of a navigable stream, the right to and treat it as a landing is undoubted. Having dedicated the banks of the river, this united the two easements, each of which was essential to the full enjoyment of the other, they had no interest in the bed of the stream which they could reserve, to the prejudice of the enjoyment of the public easement over it.

Exceptions were taken to the instructions. These are very numerous and some of them very long, and not very perspicuous, and may not have tended much to the enlightenment of the jury. It would be tedious and unprofitable to review them separately. Although some verbal alteration might well have been made to one or two of them, still on the whole, we think the law was not improperly laid down to the jury.

A verdict was returned for the defendant upon all the pleas, after which the plea of liberum tenementum, was allowed to be withdrawn, and this is assigned for error. In this there was nothing improper, nor was there anything prejudicial to the rights of the plaintiff. That plea may not have been sustained by the evidence, yet the defendant was entitled to a judgment, if the verdict upon any one of the pleas could be sustained. Because the verdict upon one plea was erroneous, it would not vitiate the finding upon the others.

The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.