text:
    John L. Eaton, appellant, vs. Samuel Graham, appellee.

      •Appeal from Bureau.

    This Court) will presume that the Circuit Court decided correctly in denying a rule for security for costs, unless the ground of tbe application appears upon tbe record.
    The statute requiring justices to indorse the amount of the plaintiff's demand on the hack of the summons is directory; an omission to do so, will not operate to defeat the action, especially if the objection is first taken in the Circuit Court. If the justice does indorse the amount of the plaintiff's demand, tbe recovery will he limited to that amount.
    The repeal of a statute imposing a penalty, at any time before judgment rendered, will take away the right of action.
    If the power to change a law is delegated, no chango is thereby ij^e, until the power is exercised, by changing the law.
    This was an action originally commenced before a justice of the peace, in Bureau county, to recover a penalty of the appellant, for permitting hogs to run at large. There was no indorsement of the amount claimed on the back of the summons. In the Circuit Court, the appellee recovered a judgment against the appellant for ninety dollars, who, thereupon, prayed this appeal. A motion was made in the Circuit Court to abate the suit, because the law authorizing the recovery of the penalty had been repealed by the law authorizing township organization. The cause was tried at April term, 1850, of the Bureau Circuit Court, by a jury, T. L. Dickey, Judge, presiding.
    E. S. Leland, for appellant.
    Glovek & Cook, for appellee.
   Opinion by Mr. Justice Catón :

We presume the Circuit Court decided correctly, in denying the application for a rule on the plaintiff for security for costs.There is nothing to show that that decision was wrong. The affidavit upon which the rule was asked, is not in the record, and the presumption is, that no sufficient cause for the rule was shown. For aught that appears, sufficient security may already have been given, for by his certificate the clerk does not profess to have sent up a complete copy of the record. Nor can the party take any thing by his objection1, that the plaintiff’s demand was not indorsed on the back of the summons. The statute requiring the justice to indorse the amount of the plaintiff’s demand on the back of the summons was directory, and when he has omitted to do so altogether, it ought not to operate to defeat the action, especially when the objection was first taken in the Circuit Court. Swift vs. Woods, 5 Blackf. R., 97. Had the justice, in pursuance of the directions of the statute, indorsed the amount of the plaintiff’s demand upon the summons, then his recovery would have been limited to that amount. Dowling vs. Stewart, 3 Scam., 193.

But the important question is, was the law of the 10th of February, 1849, which imposed this penalty, repealed, as to Bureau county, either bjgae passage or by the adoption by that county of the township law, which was approved two days after ? Without determining that question, we will assume that this law was adopted by Bureau county the day before this cause was tried; and if the law of the 10th of February, was thereby repealed, then there yeas no law imposing the penalty, and no judgment for the penalty could legally be rendered. The repeal of the statute, at any time before judgment, would take away the plaintiff’s right of action. Commonwealth vs. Kimball, 21 Pick. R., 373; Lewis vs. Foster, 1 N. H. R., 61.

The first law prohibits hogs from running at large in Bureau county, and imposes upon the owner a penalty of one dollar for each hog suffered to run at large in that county. By the fourth section of the third article of the township law, the electors of each town, at their annual town meeting, are authorized, among other things, “to determine the time and manner in which cattle, horses, mules, asses, hogs, sheep or goats, shall be permitted to go at large, and what animals shall not be permitted to go at large;” and also to impose penalties for the violation of town regulations. The last section repeals “ any former statutes, or parts of statutes, which conflict with any of the provisions of this act.” If the former law is inconsistent with the latter, then it is repealed, but not otherwise. The former law says, that hogs shall not run at large, but the latter law does not say they may. By the latter law, power is delegated to the towns to legislate on certain subjects, but that cannot affect the force of laws previously made on those subjects, until, in the exercise of the power delegated, another law is prescribed. The power to make a new law, necessarily implies the power to change an existing one on the same subject; but the grant of power does not of itself change the law. The power to change this law always rested somewhere; and what matter is it, as to the continuing force of the law, whether the power to change it continues exclusive in the Legislature, or be transferred to an inferior body? Even a change of the sovereignty of a country does not, of itself, repeal the general laws in force there, unless they be inconsistent with some general law of the new sovereign; but it only confers upon the new sovereignty the power to change the laws when it shall see fit. How much more, then, should a law remain in force, which the sovereign power has enacted, and has then conferred the power to change it upon a subordinate authority—a creature of its own creation ? It cannot be that the mere act of conferring power to make a law on a particular subject, of itself, annuls immediately all existing laws on that subject. Suppose the Legislature should confer upon this Court authority to fix the times when the Court should be holden, (and, by the way, I think such a law would be a convenient one,) would it be contended that the law now existing on the subject would be thereby repealed, and immediately cease to operate ? Until we should pass an order changing the terms, writs would be returnable as now prescribed by law. But it is useless to multiply, illustrations, in proof of so plain a proposition. We have been referred to a class of cases establishing the principle that a subsequent law, revising the whole subject matter of a former law, and evidently intended as a substitute for it, will repeal, by implication, the former act; or, where a subsequent law is passed, which is inconsistent with the former one, then, as both cannot stand together, the former must yield to the latter. These principles are not disputed; but we conceive that they do not apply in this case. Here has been no revision of the subject matter of the first law, nor has any new law been passed on the subject, the provisions of which are inconsistent with that. Authority has been given to the towns to adopt regulations on the subject, which may be inconsistent with the existing law, but, till they exercise that power, there can be no conflict of laws, any more than if the power to pass the new law had remained exclusive in the Legislature.

We wish further time for reflection, before we decide whether the Courts will take judicial notice of the adoption of the township law in the counties which have adopted it, or whether that is a fact to be proved. In this case the decision would be the same, whichever way that question should be determined.

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

Judgment affirmed.


source: Caselaw Access Project

author: Opinion by Treat, C. J.:

license: Public Domain

text:
    Oren Sherman, appellant, vs. John W. Baddely, appellee.

      Jlppeal from Gook County Court of Common Pleas.

    Where a debtor gires a note and a warrant of attorney, authorizing a confession of judgment to be made for the amount specified in the note, before the time given for the payment of the note shall have elapsed, it is not error to render a judgment at any time, upon such confession.
    This was a judgment, entered by confession, in the Court of Common Pleas for Cook county, at the May term, 1849, Spring, Judge, presiding. At the same term, the appellee, defendant below, entered his motion to set aside the judgment, and filed his affidavit, in support of his motion—the ground of which was, that the note upon which the judgment was rendered, was not due at the time of the rendition of the judgment. The motion was resisted by appellants, who also filed affidavits, in showing cause against the allowing of the motion. The Court below set aside the judgment, and the plaintiff appealed to this Court. The note was dated 25th May, 1849, payable ninety days after date, given for $ 453 60. A power of attorney, under seal, authorizing a judgment to be confessed upon the note, “ at any time from and after the date thereof,” was given at the same time with the note, and both were on the same paper.
    T. L. Dickey, for appellant.
    J. Y. Scammon and George Manniere, for appellee.
   Opinion by Treat, C. J.:

The affidavits copied into the transcript, not being incorporated in a bill of exceptions, do not properly form a part of the record. The ease must, therefore, be determined without taking them into consideration. The only question is, whether the judgment was properly entered in the first instance; for, if it was, the subsequent order of the Court, vacating it, was clearly erroneous. We do not perceive any valid objection to the judgment. It wag based on a warrant of attorney, executed by the defendant, expressly authorizing a confession of judgment for the amount of the note. The note and warrant of attorney, having been executed at the same time, and in reference to the same subject matter, must be construed together, and considered as forming but one transaction. It amounts to this : the debtor is to have a credit of ninety days, with the right on the part of the creditor, if he chooses to assert it, of having a judgment entered up at any moment for the amount of the debt. It is like the case of a note payable on a certain day, with a condition that it shall be considered as falling due before that time, on the happening of a particular contingency. The creditor says to his debtor, “ I will take your note, payable in ninety days, if you will permit me, in case I shall find it necessary for the protection of my interests, to take a judgment previously for the amount of the debt.” The debtor accedes to the proposition, by executing and delivering to the creditor a warrant of attorney, expressly stipulating that the judgment may be taken. We can see no good objection to the enforcement of such a contract. It is true, the payment of the obligation may depend on the pleasure of the creditor; but that is not a valid objection, if the contract was fairly made. It is in the power of a debtor to make his obligation payable on the happening of a contingency, It may be in this very case, that the plaintiff refused the credit altogether, unless the warrant of attorney should be executed in connection with the note; in other words, he was willing to accept the note of the defendant at ninety days, if he could have the legal right, in case he should consider it necessary for his own security, to enter up a judgment before the time should expire. The defendant has no right to complain of the judgment, for he deliberately authorized it to be entered. The note was due, for the purposes of the judgment, by the express stipulation of the maker. Having a valid judgment, the plaintiff was entitled to an execution thereon.

The order of the County Court, setting aside the judgment, and dismissing the suit, will be reversed, with costs; and the cause will be remanded, with directions to that Court to enter a judgment in favor of the plaintiff for the amount due on the note.

Judgment reversed.


author: Opinion by Mr. Justice Catón :

text:
    Alexander Young et al., plaintiffs in error, vs. John Lorain et al., defendants in error.

      Error to Jo Daviess County Court.

    Prior to the passage of the act of the 13th of April, 1849, a guardian could not, as a matter of right, resign his trust. Still, when, previous to the passage of said act, a guardian tendered his resignation of his guardianship to the Prohate Court, which resignation was accepted by the Court, and his letters of guardianship were revoked, and another guardian appointed in his place, held, that the validity of such revocation, and the appointment of another guardian, could not be collaterally called in question. The Court of Probate had the power to remove the guardian, for good and sufficient reason, and, admitting, that upon an appeal, the sufficiency of the reasons of the removal might be inquired into, yet, in a collateral action, this Court cannot pronounce them insufficient. The Probate Court had jurisdiction, and its judgment upon the sufficiency of the reasons for the removal is binding, however erroneous, until it is reversed.
    When the Probate Court appointed a guardian to two orphan minors, under the age of fourteen years, for the full time until they should respectively attain the age of eighteen years. held, that the appointment was valid. And, admitting that the said minors might, under the statute, when they arrived at the age of fourteen years, choose a guardian for themselves, who would supersede the guardian so appointed by the Probate Court, still, in the event of their neglecting or refusing to choose a guardian for themselves, at the proper age, the guardian already appointed by the Probate Court would continue to act in his office until the said minors attained their majority.
    In order to give the Circuit Court jurisdiction, to order the sale of the real estate of a ward, on the application of his guardian, under the tenth section of the act relative to guardian and ward, it must appear on the face of the record or proceeding itself, that the contingency provided for in said section existed, which authorized the Court to proceed under it and make the order. Hence “ the inquiry is not whether the proof was sufficient, but was such a case presented to the Court, as called upon it, under the statute, to act, to deliberate and to decide ?99 (s Was its aid properly invoked ? 93 If so, then tbe Court acted within its jurisdiction, and every presumption is in favor of its judgment. Indeed, nothing can be alleged against it in a collateral proceeding.
    Where the guardian avers in his petition, “ that no personal property of the wards had ever come to his hands/' held, that this departure from the expressions of the statute was not fatal to the jurisdiction of the Court, although the averment was somewhat equivocal. Held, also, that all objections taken to the notices of the sale, posting them, and other matters involved in the adjudication of the Circuit Court, either in granting the original order of sale, or in the final order, confirming the report of the guardian, could avail nothing in this collateral action.
    Where there were ambiguities in the conveyance executed by the guardian, in the description of the grantees, and also in omitting the number of the block, in describing the premises, held, that parol evidence was competent, in both cases, to remedy the defect. Held, also, that a subsequent deed, executed by the said guardian, for the purpose of explaining the first deed and correcting the mistakes therein, was improperly admitted in evidence, as it amounted, at most, only to the declarations of the said guardian, made some years after the transaction, and when he could not," by such declarations, affect the interests of his wards. His power was exhausted when he had made the sale and conveyance, and his acts were approved by the Court.
    Where a ward subsequently acquires from the government of the United States a patent to the premises which had been sold by his guardian, at a guardian's sale, under the statute, held, that his independent title, subsequently acquired, did not inure to the benefit of a previous purchaser at a guardian's sale; nor was he estopped by the guardian's deed from setting up such subsequent title. Held, also, that the guardian could not insert any covenants in the deed, which would be binding on his ward. If the guardian chooses to insert covenants in the deed, he may be held personally responsible upon themand to him alone must the granteelook.
    This suit was commenced in the Circuit and taken by change of venue by consent to Jo Daviess County Court. Heard before Hugh T. Dickey, Judge, and a jury, at January term, A. D. 1850. Declaration with three counts. The first count sets forth the seizin in fee of said Alexander Young and Elizabeth his wife, of the one undivided half, in the right of the said wife, of the north half of lot five, and south half of lot six, both in block twenty-nine, on the east side of Fevre river, in the city of Galena, county of Jo Daviess, and state of Illinois 5 and also the seizin in fee of said Julia Ann Bates, of the one undivided half of said north half and south half of said lots five and six—■ dispossession by the defendant, and unlawful withholding, &c. The second count is a several count, by Young and wife, setting forth the possession of the one undivided half of said north half of lot five and south half of said lot six, by said Young and wife— a dispossession and withholding by the defendant; that the said Young and wife claim the said undivided half of said lots in fee, in right of the said wife, Elizabeth. The third count is a several count, by Julia Ann Bates, setting forth the possession of the one undivided half of said north half of lot five and south half of said lot six, by said Julia Ann Bates—a dispossession and withholding by defendant; that said Julia Ann claims the one undivided half of said north half of said lot five and south half of lot six in fee.
    Plea of the general issue and similiter. Francois Marchildon made a party, by a suggestion of his marriage with Julia Ann Bates.
    Evidence on the part of the plaintiff showed a patent from the United States, granting to Elizabeth and Julia Ann Bates, heirs at law of Nehemiah Bates, deceased, according to the act of Congress, &c., said north half of lot number five and south half of said lot six, in block number twenty-nine, among other lots; which said lots had been purchased by said Elizabeth and Julia Ann, and granted to said E. and J. A., their heirs and assigns forever, as tenants in common, and not joint tenants. Patent dated 12th September1, 1845; which was admitted by the Court as evidence. Proof was introduced, showing that Elizabeth Young and Julia Ann Marchildon were the heirs at law of Nehemiah Bates.
    Defendant’s counsel then admitted that said halves of said lots five and six, at the time of the service of the declaration and notice, were vacant and unoccupied lots, and claimed by defendant in fee simple.
    On part of defendant, Richard Seal testified—he is clerk of the County Court of Jo Daviess county—keeper of the records of the Probate Court. He produced one of the records of said late Probate Court, of its acts, &c., and testified that the entries on pages seventy-one and seventy-two were in the handwriting of Elijah Charles, who was probate justice during the year 1840, and at date of 'said entries on pages seventy-one and seventy-two, signed “Elijah Charles;” that said signature is the proper signature of said Charles; that said Charles is now deceased. Defendant offered in evidence said entry; which is as follows, to wit:
    “ At a special term of the Court of Probate, held at the court house, in Galena, and county of Jo Daviess, and state of Illinois, on the 23d day of May, 1840, the following proceedings were had, to wit: Present Elijah Charles, prohate justice of the peace in and for said county. Robert B. McDowell, heretofore appointed guardian for Elizabeth and Julia Ann Bates, minor heirs of Nehemiah Bates, deceased, personally appeared in open Court, and tendered, in writing, the following resignation: To Elijah Charles, probate justice of the peace in and for the county of Jo Daviess, and state of Illinois: Sir—I this day resign the office of guardianship for Elizabeth and Julia Ann Bates; and whereas, the Court having accepted said resignation, and revoked the letters heretofore granted to said McDowell, and it appearing to the satisfaction of the Court that the said minors are possessed of real estate, do therefore appoint Thomas Drum guardian for said Elizabeth and Julia Ann. Said letters are in words and figures, to wit:

    “ The people of the state of Illinois to Thomas Drum of said county, greeting : Whereas Robert B. McDowell, guardian for Elizabeth Bates, of the age of eleven years, in February last, and Julia Ann Bates, of the age of nine years, minor heirs of Nehemiah Bates, deceased, has on this day filed in the office of Probate Court his resignation as such guardian; and the said Court having accepted said resignation, and revoked the letters heretofore granted to said McDowell, do, therefore, hereby appoint you guardian of the said Elizabeth and Julia Ann Bates, persons and property, until they shall arrive at the age of eighteen years. Witness, Elijah Charles, probate justice of the peace in and for said county, at his office, in Galena, this the 23d day of May, A. D. 1840.

      il Elijah Charles, Prolate J. PP

    To the admission of this entry the plaintiff’s counsel objected; which objection the Court overruled, and plaintiffs excepted. Defendant offered and read in evidence a bond, executed by said Drum, as guardian, with sureties, in the penal sum of $5000, dated 23d May, 1840, conditioned for faithful discharge of office and trust of guardian, &c., &c. . The defendant then offered evidence that notice of sale was printed in four numbers of the Galena Sentinel, the first insertion on 11th February, 1843, and the last 11th March, 1843. The notice was dated Galena, February 14th, 1843, and set forth that Drum was guardian of said Elizabeth and Julia Ann, minors j that they were seized of certain lots and parcels of land, and among them said lots number five and six, in said block twenty-nine ; it was necessary for the support and education of said wards, and would be conducive to their interests, to have said lots or some portion of them sold ; that it was his intention to petition the Circuit Court, at Galena, on second Monday of March, then next, for license and authority to sell the same, or so much as should be necessary for their support and education. To the admission of which notice and certificate the plaintiffs’ counsel objected; which objection was overruled, and the notice and certificate admitted ; and plaintiffs excepted.
    The defendants then offered in evidence a petition, signed “ Thomas Drum, guardian,” addressed to the Associate Justice of Supreme Court and Judge of the Circuit Court, &c., which represented and set forth that said Drum was guardian of said Elizabeth and Julia Ann Bates, minors, &c., by the appointment of the probate justice for said county; that his said wards were each seized of an undivided half of certain tracts of land, (describing them, and, among others, the said lots five and six, in block twenty-nine;) that said Drum was so appointed guardian on the 22d May, 1840 j “that at the time of his said appointment, nor at any time before or since, had there come into his hands or possession any personal property of said wards ; ” that from time to time since said appointment, said petitioner had advanced moneys for the support, maintenance and education of said wards, as appears by account annexed ; that they were then indebted to him for such moneys; that there was no money, personal property, or means in his hands, for the support, maintenance and education of said wards; that it is necessary for their support and education, and will be conducive to their interests to sell said lots or part of them j that notice had been given to all concerned, by publication in the Galena Sentinel, printed in Galena, for three weeks, successively, before the sitting of the Court—certified copy annexed : Wherefore he prays the Court to order a sale of said lots, or as many as shall be deemed necessary by said petitioner, for the support and education of said wards ; and that petitioner, on making sale, at such time and place, and on such terms as this Court shall order, be authorized to convey the same to the purchasers, by good and sufficient deeds, according to the statute in such case made and provided. Signed “ Thomas Drum.” To the admission of which petition, the plaintiffs5 counsel objected; which objection was overruled by the Court, and the plaintiffs’ counsel excepted. Defendants’ counsel offered in evidence an entry in said record of said Circuit Court, at its March term, 1843, setting forth that Thomas Drum, guardian, &c., came, &c.; that proof of publication had been filed according to law, and the Court being satisfied as to the facts stated in said petition, and that there were just and reasonable causes for the sale of the real estate therein described, ordered and decreed that said Drum, guardian, &c., should sell at public sale the lots or tracts of land mentioned in said petition, belonging to said wards, (setting forth a number of lots, and among them said lots number five and six, in block twenty-nine,) or so many of said lots as might be deemed necessary or expedient by said guardian, for the purpose set forth in said petition, on Saturday, 22d April, then next, between nine o’clock in the morning, and six in the afternoon of said day, to the highest bidder. Notice to be given by guardian in a newspaper in Galena, for three weeks successively $ the last publication to be at least ten days before the sale. Sale to be on the premises. Terms : one-third of purchase money cash, one-third in six months, one-third in twelve months, with interest from date of sale 5 the purchasers to execute a mortgage, on the premises sold, to said guardian, for security for notes taken for balance. The petitioner being authorized to execute, acknowledge and deliver good and sufficient deeds for the premises sold, conveying all the right and title of his said wards. And it is further ordered, that he make a return of his doings in this behalf to the next term of this Court. To the admissibility of which, the plaintiffs’ counsel objected. The objection was overruled, and the plaintiffs’ counsel excepted.
    Plaintiffs admitted that Elizabeth and Julia Ann were residents of Galena, at the time of the presentation of said petition and order of sale, and waived proof thereof.
    The defendants then offered in evidence a printed notice and certificate of H. C. McGrew, publisher of the Galena Sentinel 5 that said notice had been published in said paper, printed in Galena, for three weeks in succession, in three different numbers of said paper—the first, March 17th, 1843—the last, April 8th, 1843; which said printed notice was headed “Guardian’s Sale,” dated March 16th, 1843, and signed “Thomas Drum,” reciting that, by virtue of a decree of the Circuit Court of Jo Daviess county, Illinois, at March term, 1843, the undersigned, Thomas Drum, guardian of E. and J. A. Bates, minors, &c., would sell at public sale, on Saturday, 22d April, then next, between the hours of nine o’clock A. M. and six P. M., on the premises, to the highest bidder, all the right and title of his said wards in and to property described, and, amongst others, the said north half of lot number five, and south half of lot number six, both in block number twenty-nine, east of Fevre river, Galena, Illinois, for the purposes set forth in the petition to said Court. To the admission of this notice, &c., plaintiffs’ counsel objected; which objection was overruled by the Court, and plaintiffs’ counsel excepted.
    The defendants then offered in evidence the return of said Drum of said sale, in words and figures, which was entitled, “ In the matter of Thomas Drum, guardian of E. and J. A. Bates, minors, &c., on petition for sale of real estate. In Circuit Court, to the October term, A. D., 1843 ;” which recites the order of Court hereinbefore set forth, and that in pursuance thereof, said Drum sold at public sale, 22d April, 1843, between nine A. M. and six P. M., on the premises, to the highest bidder, the real estate set forth in the petition and order—giving the names of purchasers, numbers of lots, and amount bid—among others, as follows: “ Lorain & Co., the north half of lot five, in block twenty-nine, for $135; Lorain. & Co., the south half of lot six, in block twenty-nine, for $ 115.” That notice of time and place had been given, &c., and a printed copy of the notice and certificate of printer annexed, and marked “ A,” hereinbefore set forth; that the terms were the same hereinbefore last mentioned ; that said terms were complied with by each purchaser, as aforesaid, and that deeds were executed, &c., to purchasers, for premises purchased, conveying all the right of said wards; and that said Drum prayed the Court to accept and approve of said return and report of his proceedings, and to order it to be recorded according to statute in such cases made and provided. Signed, “ Thomas Drum, guardian,” and filed October 28th, 1843. Which return was objected to; which the Court overruled, and plaintiffs’ counsel excepted.

      Defendants then offered, in evidence, two entries on the records of the Circuit Court—one made at June term, 1843, and the other at October term, 1843. Entry of June term, 1843, recites the filing by said Drum of a motion to extend the time for reporting his proceedings in this matter to the next term of Court, as follows : “ Now at this day came the petitioner, by his attorney, and presented a report of the proceedings in this behalf: which is accepted by the Court, and ordered to be filed, and is in words and figures following, to wit:” (Reciting the return verbatim—the contents are given above.) To last entry plaintiffs objected. Objection overruled, and plaintiffs excepted.
    Defendants then proved that defendants, on the 22d of April, 1843, and before and after, composed the firm of Lorain & Co. The defendants then offered in evidence the following deeds, &c.: “ Thomas Drum, guardian, to Lorain & Co.”—Deed dated 22d April, A. D. 1843; acknowledged 3d May, 1843, and recorded May 24th, 1843. Recites order of Court, notice of sale, and sale of the said minors’ right, title and interest in north, half of lot five and south half of lot six, being a sale of all the right and title of said minors; special warranty against all persons claiming under said Drum, in his capacity aforesaid ; signed, “Thomas Drum, (seal.)” No block is mentioned in this deed.
    In connection with and explanatory of said deed, defendants offered in evidence : First, a mortgage, as follows : “ John Lo-rain and Shewell S. Lorain, partners, under the style of Lorain & Co. to Thomas Drum”—Dated 22d April, 1843; acknowledged 4th May, 1843 ; recorded May 13th, 1843—consideration $ 166 66—north half lot number five and south half lot number six, in block twenty-nine—conditioned to secure $ 166 66, with interest, in manner specified in two promissory notes, for $ 83 33 each, one payable in six months, and one in twelve months. Second, an entry on record of mortgages of recorder’s office of Jo Daviess county, of mortgage last above; and the following marginal note: “Know all men, that I hereby acknowledge payment and satisfaction in full of the within mortgage, and do hereby declare the same cancelled, and of no further force or effect whatever. Galena, May 23d, 1844. Thomas Drum.” Signed with the proper and genuine signature of Thomas Drum. Drum at time of trial was dead. Third, “Thomas Drum to John Lorain and Shewell Lorain”—Deed, dated 23d January, 1847; acknowledged 28th January, 1847; recorded 2d February, 1847. This deed is like the first from Drum to Lorain & Co., and names the block twenty-nine. Recited this deed to be a correction of that deed, as to the said block and the individual names of the grantees.
    To the first named deed from Drum to Lorain & Co., plaintiffs objected. The mortgage was objected to by plaintiffs’ counsel. The said entry in said record of mortgages was objected to. The marginal memorandum, signed Thomas Drum, was objected to. The said second deed by said Drum to said John and Shewell Lorain, dated 1847, was objected to. Each and all of which objections to said deeds, mortgages, entry and marginal memorandum, were overruled—plaintiffs excepting.
    Plaintiffs then produced a witness, who testified that he was clerk of the Circuit Court in and for Jo Daviess county, Illinois, and had been for about ten years; that there were no other papers on file, nor had been in his office, to his knowledge, in the matter of the said application of said Drum for the said sale of said realty, except: First, the petition, signed Thomas Drum, above described, and the contents given; second, printed notice, signed Thomas Drum, and certificate of printer, above set forth, and contents given; third, motion by said Drum, at the June term, 1843, for an extension of the time for the return of said proceeding till next term ; fourth, the return described above; fifth, the printed notice, signed Thomas Drum, and certificate of printer.
    Hoge & Wilson, for plaintiffs in error.
    Thompson Campbell, for defendants in error.
   Opinion by Mr. Justice Catón :

We will dispose of the questions arising in this case, in the order in which they have been presented upon the argument. On the 23d of May, 1840, Mr. McDowell, the former guardian of Elizabeth and Julia Ann, presented to the Probate Court a resignation of his guardianship, which that Court accepted, and revoked his letters of guardianship, and appointed Thomas Drum guardian of the same wards. It is objected that the former guardian had no right to resign; that the Probate Court could not legally accept his resignation and appoint a successor, and that hence the appointment of Drum was a nullity. It may be admitted, that until the passage of the law of the 13th of April, 1849, a guardian could not, as a matter of right, resign his trust; nor, it is most probable, would the mere acceptance of the resignation, of itself, vacate the office. But we think that under the power given by the seventh section of chapter forty-seven, of Revised Statutes, the Court might consider a resignation a sufficient cause for removal. That section provides, that “the Court of Probate, in all cases, shall have power to remove guardians, for good and sufficient reasons, which shall be entered on record, and to appoint others in their place,” &c. Now it may be well to remember, in the outset, that the objections which are presented to the action of the Probate Court, as also of the Circuit Court, are urged in a collateral proceeding, and not upon an appeal to reverse those orders and proceedings. That the Court of Probate had power to remove the guardian, for good and sufficient reason, is clear, for it is so expressly written j but the statute does not specify any particular reasons, but leaves the sufficiency of the cause with that Court. Admitting that upon an appeal the sufficiency of the reasons might be inquired into, yet, in this collateral action, we are certain that we cannot pronounce them insufficient. That Court had jurisdiction to remove, and was called upon to exercise its judgment, on the sufficiency of the reasons for the removal; and its judgment is valid and binding, until it is reversed, no matter how erroneously the Court may have judged in the exercise of its jurisdiction. The Probate Court considered the resignation sufficient cause for the removal, for immediately it proceeded to revoke the letters of guardianship, which necessarily operated as a removal of the guardian. The appointment of Drum was made in a proper case, and he was a legal guardian, unless the other objections to his appointment shall be sustained.

At the time of Drum’s appointment, one of the wards was nine and the other eleven years of age, and his letter of appointment expressed to be for the full term, until they should respectively attain the ages of eighteen years. It is objected, that here was an excess of jurisdiction, exercised by the Probate Court, and for that reason the appointment was void. Were we to admit that the guardianship of one who is appointed while the ward is within the age of choice, cannot continue beyond that period, still we do not think it would entirely vitiate the appointment, because it professed to be for too long a time. Within the time for which he might have been appointed, his acts would be good. It is not like the case of a lease made by a guardian of the ward’s estate, for a longer term than he had authority to lease it. In such case, the lease might be void, as' being in express violation of the law; and there is a manifest reason why it might not be binding; for the entire term would enter into and constitute one of the principal moving considerations for the tenancy. When void for a part of the term, it might well be considered of no validity. But no such consideration enters into the appointment of a guardian. The letter of appointment might fix its duration, until it should be revoked; and yet, because that might never happen, it would be unreasonable to say that the appointment was good for nothing. That objection, at least, is untenable. Now let us see whether the appointment necessarily ceases when the ward arrives at the age of choice. This appointment was made under the first section of our statute which provides : “ Courts of Probate, in their respective counties, shall admit orphan minors, above the age of fourteen years, the father being dead, to make choice of guardians, and appoint guardians for such as are under the age of fourteen years.” The next section requires the Court of Probate, when informed that there is a minor within the county, over fourteen years of age, without a guardian, to notify the infant to appear and choose a guardian; and if he refuses to do so, the Court shall appoint one for him, the same as if the minor were under that age. The question in this case arises under the first section, and it might admit of a reasonable doubt, whether the right of choice is given to a minor, after he arrives at the age of fourteen, if he then has a guardian holding under a previous appointment. The statute certainly does not limit the appointment to that time, nor does it say that after that time the minor may choose another guardian in place of the former. However, as the statute was framed upon the supposition that, at the age of fourteen, the minor is of sufficient discretion to choose a guardian, and as that discretion would not be likely to be impaired by his having a guardian before that time, we may consider it a part of the policy of the law to allow minors, in all cases, to make choice of guardians, after that time. But there is no intimation that, until that right is exercised, the former appointment shall be superseded. But the reverse may be fairly .intended, from the expressions and provisions of both sections. The first section says, the Court shall admit the minor of the age of fourteen to make choice, &c. ISiow it is under this section, if at all, that minors, having guardians, .may, when they attain that age, have the right to choose others ; and, at most, they are admitted to do so. The Court is not required to call upon them to make a choice, nor is the Court authorized, in case they do not choose, to make appointments, as is provided for another class of cases in the next section. So that, unless the old guardian holds over, the minor will be without a guardian, until the infant shall appear in Court and make a choice. We think it is manifest that the second section was never intended to embrace a case where a guardian had once been appointed. That section provides, that whenever it shall be represented to the Court that there is, within the county, an orphan minor, over the age of fourteen years, who has not a guardian, he shall be notified to appear and choose a guardian; and if he does not do so, the Court shall appoint a guardian for him, “ as if said minor were under the age of fourteen years.55 This evidently contemplates a new case, of which the Court has had.no.previous jurisdiction or knowledge ; and it even seems to require'ibe representation of a third person to set the Court in motion, aníLis not a case where the minor has been under the supervisory control of the Court. Under this section, if the minor refuse to choose, the Court shall appoint, as if the infant had not attained the age of choice. And, in such a case, how long shall the appointment continue ? In terms, at least, until the minor shall attain his majority, and undoubtedly the guardian might continue till that time, unless the infant should sooner choose another, if he should be held to have that right. If sueh must be the terms of such an appointment, why should they be variant, where the infant is under fourteen, when the statute says that the appointment, in that case, shall be the same as in this? We entertain no doubt, that it was the intention of the Legislature that a guardian appointed for an infant under the age of fourteen, should continue in his appointment after that time, unless superseded, by one selected by the infant himself. There are no terms of limitation in the act, and nothing from which a necessary limitation can be inferred. At most, we may infer that the Legislature intended to admit the ward to choose another, if he should see fit to exercise that right. And the policy of such a provision cannot be doubted. By this construction, no interregnum would occur, either from necessity or inadvertence, and it is the policy of the law that every infant shall be constantly provided with a guardian, to take care of his person and to superintend his estate. We have not thought it necessary to go into an examination of the learning displayed at the bar, relating to the different kinds of guardians known at the common law, and their incidents, rights and duties, nor yet to review the decisions of the Courts of other states—all made upon statutes materially differing from ours, for, at last, we should return from our research with but little light to aid us in the construction of our own statutes, and it-is upon that the decision of the question must at last depend.

We hold, then, that Drum was the legal guardian of these minors, and we will address ourselves to the examination of the third objection, which, to our apprehension, presents more difficulties. This relates to the proceedings before the Circuit Court which granted the order under which the premises were sold. This proceeding was under the tenth section of the statute already-referred to, which provides, that “the Circuit Court may, for just and reasonable cause, being satisfied that the guardian has faithfully applied all the personal estate, order the sale of the real estate of the ward, on the application of the guardian, by petition, in writing, stating the facts,” &c. That section, after providing for the notices, proceeds, “ such order may enable the guardian to sell and convey the real estate, for the support and education of the ward, or to invest the proceeds in other real estate.” This is a proceeding not according to the course of the common law, but is a special jurisdiction, conferred by the statute, and, although in a Court of general common law and chancery jurisdiction, yet when the Court undertakes to exercise this extraordinary jurisdiction, which is not in conformity to either, it must appear upon the face of the record or proceeding itself, that the contingency existed, or at least, was alleged, which authorized it to proceed under the statute, and make the order. Upon a cursory examination of the many decisions which were produced upon the argument, where this question has been elaborately discussed by learned Courts, great incongruity might be supposed to exist in the opinions of different judges, yet upon a more studied investigation, it will be found that they all agree in stating substantially the same rule, and the apparent discrepancy will be found to have originated in the fact, that the force of the argument is always directed either for or against the jurisdiction, according as the decision may be one way or the other. They all agree that enough must appear, either in the application or the order, or, at least, somewhere upon the face of the proceeding, to call upon the Court to proceed to act; and all agree, that when that does appear, then the Court has properly acquired jurisdiction, or, in other words, is properly set to work. When the jurisdiction is thus established, and the Court is authorized to hear, it follows, as a necessary consequence, that it is authorized to adjudge, and that judgment being thus entered by authority of law, no matter how erroneous it may be, or even absurd—though it be made in palpable violation of the law itself, and manifestly against the evidence—is, nevertheless, binding upon all whom the law says shall be bound by it, that is, upon all parties and privies to it, until it is reversed in a regular proceeding for that purpose. While it remains a judgment, it cannot be inquired into, nor its regularity questioned, in any collateral proceeding. In another action the inquiry is not whether the Court acted properly, but had it a right to act at all? Was the judgment rendered in the exercise of an usurped power, or of a conferred authority ? If the former, the whole proceeding is utterly void, every where. If the latter, it is always obligatory, till reversed. The rule, then, is a very simple one, and, ordinarily, of easy application. The inquiry is not whether the proof was sufficient, but was such a case presented to the Court as called upon it, under the statute, to act, to deliberate, and to decide? Was its aid properly invoked? If'so, then the Court acted within its jurisdiction, and every presumption is in favor of its judgment. Indeed, nothing can be alleged against it now.

This statute is far from possessing that clearness, or even consistency, in reason and expression, which might be desired in one of its character and importance ; still we must give if the most reasonable construction of which it will admit, endeavoring, on the one hand, to prevent the rights of infants from being wantonly sacrificed, in violation of the law, and, on the other, to protect the rights of innocent purchasers, when acquired in good faith, under the law. The statute sets out with authorizing the Court, “ for just and reasonable cause, being satisfied that the guardian has faithfully applied all the personal estate,” to order the real estate to be sold; and in a subsequent part of the section, it provides that the sale may be ordered for either of two purposes: first, for the support and education of the ward, and, second, that the proceeds of the sale may be invested in other real estate. Now, by the literal expressions of the act, it might seem that the personal estate must be exhausted before a sale could be ordered, where the sole object was to invest the proceeds in other real estate, but we can hardly believe that such could have been the design of the Legislature, for, certainly, the existence of personal estate could have nothing to do in determining the question whether the interest of the ward would be promoted by a change of the investment in real estate. It would seem to be more reasonable to suppose that the “just and reasonable cause,” which is required to be shown, and the facts of which the statute requires to be stated in the petition, should govern the Court in determining whether the interest of the ward required a change of the investment, without regard to the existence of personal estate. But it is unnecessary to discuss the difficulties which may be found in that part of the statute, or to undertake to explain them, for in this case the application for the sale was not made for the purpose of investing the proceeds in other real estate.

After stating the guardianship, and that the premises belonged to the wards, the petition shows, “ that at the time of the said appointment, nor at any time since, has there come into the hands or possession of your petitioner any personal property of his said wards,” and “ that there is no money, personal property, or means in his hands, for the further support, maintenance or education of his said wards; and that it has, therefore, become necessary, for their support and education, and will be conducive to their interests, to have the same, or some part thereof, sold,” &c. These are the reasons, and these the purposes, for which an order for the sale of these premises was asked; and the sufficiency of these is not impaired by the further statement, that the guardian had already made large advances out of his own funds, for their support and maintenance, and. that there were no means for reimbursing him. The petition does not ask that any portion of the proceeds of the sale should be applied in payment of those advances. In the prayer of the petition, the Court is asked to order a sale of the property, “ for the support and education of his said wards,” and no other purpose is expressed, either in the petition or in the order of the Court. This petition, the averments of which the Court found to be true, states every thing which the statute requires to give the Court jurisdiction, except that instead of averring “ that the guardian has faithfully applied all the personal estate,” it states that no personal property of the wards had ever come to his hands. We do not think this departure from the expressions of the statute fatal to the jurisdiction of the Court, although it must be admitted that the averment is somewhat equivocal. The meaning of the statute is, that the guardian should have faithfully applied all of the accessible personal estate 3 and we are disposed to hold that the averment here was equivalent to that 5 for if there never was any personal estate, that statement must be equally satisfactory. The statute undoubtedly requires the guardian faithfully to seek for personal estate, and the Court should refuse an order of sale, if it appears that there was personal property which the guardian might have made available, by the exercise of proper diligence, and which, by his neglect, he has not obtained and applied. It is true, that such may have been the case here, but we do not think that we ought to intend that it was so, for the purpose of denying the jurisdiction of the Court, and defeating the titles acquired by the purchasers. We are of opinion that the order of the Court, directing the sale of these lots, was valid, and that it cannot be impeached in this collateral action.

Several objections were taken to the notices of the sale and other matters involved in the adjudication of the Circuit Court, either in granting the original order of sale, or in the final order, confirming the report of the guardian; but they can avail nothing. That Court having had jurisdiction to hear and determine, it cannot be permitted now to deny that it proceeded properly and determined correctly. And as to the proceedings in pais, as the posting of the notices of the sale, there are several cases which were referred to on the argument, deciding directly that the same presumption applies to them. The objection, that the report of the guardian was not confirmed by the Court, cannot be sustained. The order made upon the return was a substantial and sufficient confirmation.

There are two supposed ambiguities in the conveyance executed by the guardian. First, the grantees are described as Lorain See. 3 ” also, the premises are imperfectly described, the number of the block having been omitted. Admitting that there is more than one block in the town with lots bearing the same, numbers as these, then here is a latent ambiguity. Parol evidence was competent, in either event, to have remedied the defect, and such proof was adduced, showing who the grantees were. In order to explain the second, a mortgage was offered in evidence, dated the 22d of April, 1843, executed by the defendants to Thomas Drum, and also the entry of satisfaction of the mortgage, dated the 23d of May, 1844. These were objected to, admitted, and an exception taken. This evidence was improperly admitted. It was not shown to have had any connection whatever with the deed, to explain which it was admitted. Although'it describes the same premises as the deed, with the addition of the block, and corresponds with it in date, and' may be for the balance of the purchase money due at the time the mortgage bears date, yet that did not prove that it was given for the security of the balance of the purchase money; and, above all, it did not prove that this mortgage was upon the same property which was sold by the guardian. It does not even appear that the mortgage was given to Drum, as guardian. On its face it was a private matter of his own, and there is nothing to show that it was otherwise. Also, for the purpose of explaining the first deed, a subsequent one was offered, executed by Drum to the defendants, dated on the 23d of January, 1847. This deed, which professes to be executed for the purpose of correcting the mistakes in the first deed, gives the proper names of the grantees, and describes the property in controversy. This deed, we also think, was improperly admitted in evidence. At most, it amounted to the declarations of Drum, made some years after the transaction, and when he could not, by such declarations, affect the interests of his wards. If it was designed as a confirmatory conveyance, it was equally improper, for it was made at a time when he was not authorized to convey, or do any act affecting the first conveyance. After his report of the sale had been approved by the Court, thereby giving effect to the sale and conveyance which he had made under the order of the Court, his power was exhausted, so far as it related to that sale and conveyance. His authority to make that conveyance was derived from the order of the Court. That order constituted his warrant of attorney. By that order he was made the agent of the law, and when he had fulfilled that appointment to the satisfaction of tire Court, and his acts were approved, his authority, thereby conferred, was exhausted, and his agency was determined, and any act of his, relating to that appointment, done afterwards, was void.

The only remaining question, which we deem it important to notice, arises under the assignment of error, which questions the finding of the Court upon the evidence before it. The title shown by the plaintiffs was a patent from the United States, dated the 12th of September, 1845, granting the premises in question to them, by the description of Elizabeth and Julia Ann Bates, heirs at law of Nehemiah Bates, deceased. This patent, it will he observed, hears date subsequent to the accruing of the title under which the defendants claim the premises 3 and there is no evidence in the case, showing that whatever interest the plaintiffs may have had in the premises, at the time of the sale under the order of the Court, had any connection with the title subsequently acquired from the government. There can he no just grounds for saying that an independent title, subsequently acquired by the ward, inures to the benefit of a previous purchaser at a guardian’s sale. The ward cannot be estopped by the guardian’s deed from setting up such subsequent title. The guardian can insert no covenants in the deed, which are binding upon the ward. Mason vs. Caldwell, 5 Gilman, 196. And, hence, there can he nothing in the deed which can operate by way of estoppel. If the guardian chooses to insert covenants in the deed, he may be held personally responsible upon them, and to him alone must the grantee look for redress. Whiting vs. Dewey, 15 Pick. R., 428. It was insisted upon the argument, that the patent was issued upon an entry which was made by or for the patentees, anterior to the proceedings in the Circuit Court, which resulted in the sale of their interest in the premises, by the guardian. If this be so, then, indeed, as the patent was but the perfection of a title, which, in fact, had previously accrued, and which, by our statute, is regarded as a legal and disposable title, we have no doubt that the patent could not be used to defeat the estate previously acquired. But there is no sufficient evidence in this record, showing that such was the case, and certainly the Court could not presume that it was so, without evidence. As the case stood, the plaintiffs were entitled to a verdict upon the evidence.

The judgment of the Circuit Court is reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.


text:
    Alexander Young et al., plaintiffs in error, vs. Edward Keogh, defendant in error.

      Error to Jo Daviess.

    Upon a sale of land by a guardian, the title is defective, unless the guardian shall make a report of bis proceedings, and have the same confirmed by the order of the Court authorizing the sale.
    This was an action of ejectment, in the usual form. Plea of the general issue and similiter. Jury returned a verdict of not guilty, upon the trial of the cause, before Hugh T. Dickey, Judge, at the January term, A. D. 1850, of the Jo Daviess County Court. As will be seen by the opinion, this case presents much the same state of facts, and same points of discussion, as the preceding case between Young et al. vs. Loraine.
    Hoge and Wilson, for plaintiffs in error.
    Thompson Campbell, for defendant in error.
   Opinion by Mr. Justice Catón :

The title set up by the defendant in this case, is claimed under a sale made by the same guardian as in the case of Young vs. Lorain, and for the same wards, and made upon an order of the game Court, passed in 1846, and most of the questions arising here are precisely like those decided there, and any further examination of them now is unnecessary.

The petition, however, which was produced in this case, and upon which the Circuit Court ordered the premises to be sold, differs somewhat from the one produced in the other case, and yet we think enough was shown here to give the Court jurisdiction. In fact, all that was shown in the first petition is also shown in this. And besides that, there are further statements contained in this petition, which lead to serious apprehension that these infant’s estates were squandered, or, at least, most extravagantly expended in their support and education, and yet, that is a question which cannot be properly investigated in this collateral proceeding. It would be unsafe and unjust to try that matter in a suit contesting the title to the land, in the hands of third parties, unless fraud could he shown; and here there is no proof establishing that. That the Circuit Court, in ordering the sale of this property, may have acted improvidently, and even erroneously, may be admitted, but the purchaser is not responsible for that error, nor can we correct it here. The law has enjoined it upon the Circuit and Probate Courts, at least in the first instance, in their appropriate spheres, to watch over and look after the interests of infants, and to see that they are not plundered, or their estates squandered, by their guardians or others, and with them must rest the responsibility, so long as they act within their jurisdiction, unless their proceedings are brought before us directly for review. It is only then that we can correct their erroneous judgments.

There is one fatal defect in the defendant’s title, in this case, which did not exist in the other, and that is, the guardian never made a report of his proceeding, under the order of sale, as that order directed, and as the statute required. The statute declares, “ it shall be the duty of the guardian making such sale, as soon as may be, to make return of such proceedings to the Court granting the order, which, if approved by the Court, shall be recorded, and shall vest in the purchaser or purchasers all the interest the ward had in the estate so sold.” There is no avoiding the conclusion that the title does not vest in the purchaser till the report is made and approved. The language of the statute is so explicit and unequivocal, that it neither admits of doubt or argument. It is not like the case of the return of a sheriff to an execution, as was insisted at the bar, for there it is not the return which vests the title. In this case, had the statute merely-required a return to be made, the want of it might be overlooked, and even the approval by the Court might, possibly, be dispensed with, so far as the validity of the purchaser’s title is concerned, were it not for the further provision of the statute, that the approval and recording of the return a shall vest in the purchaser” the interest of the ward. If the conveyance, with • out these proceedings, could vest the title, then these proceedings could not again vest it. Neither the guardian or the Court could contrive to vest the title in any other mode than that provided by the statute. If authority were required for a proposition so plain, it will be found in the cases of Rea et al. vs. McEachron, 13 Wendell, 465; Lessee of Curtiss vs. Norton, 1 Ohio R., 136.

The judgment of the Circuit Court is reversed, with costs, and the cause remanded for another trial.

Judgment reversed.


author: Opinion by Treat, O. J.:

text:
    Lauren P. Hilliard, appellant, vs. Almond Walker, appellee.

      •Appeal from Cook County Court of Common Pleas.

    Joint in'lcbteilness cannot be sot off against a separate demand; only suck demands can be set off as are mutual between the parties to the suit.
    This was an action of assumpsit, tried in the Cook County Court of Common Pleas, wherein Almond Walker, the appellee, was plaintiff, and a judgment rendered for $ 1,814. 80, Spring, Judge, presiding. Before the trial, the defendant below, and appellant in this Court, moved for a continuance of the cause, upon his affidavit, setting forth thatE. E. Griggs and two others were important witnesses for his defence, and that they were absent, &c., and that he expected to prove by them the collection by said Almond Walker and one Charles Yfalker, who were copartners, of several sums of money, on his account, which were used and appropriated by said firm of C. & A. Walker, two-thirds of which money collected belonged to the defendant below. This application for a continuance was refused. This is the principal error assigned hy the appellant.
    B. S. Morris, for appellant.
    Arnold & Lay and Larned & Bentley, for appellee.
   Opinion by Treat, O. J.:

The application for a continuance was properly denied. The facts sought to be proved by the absent witnesses would not have benefited the defendant. The evidence would only have showed that the firm of C. & A. Walker, of which firm the plaintiff was a member, was indebted to the defendant. That joint indebtedness could not be set off against a separate demand due to one of the partners. Demands cannot be set off, unless they are mutual, and between the parties to the action. Burgwin vs. Babcock, ante, 28.

The record fails to show that the defendant excepted to the giving of the instructions complained of. No question, therefore, arises as to their correctness.

The motion for a new trial was properly refused. The finding of the jury was clearly authorized by the evidence. The plaintiff read in evidence two promissory notes, the principal and interest of which, at the time of the trial, amounted to about $2,283. There was a credit on one of the notes of $101 95 j and the defendant proved that the plaintiff had assumed the payment to him of $ 270 or $ 300, for goods furnished to a third person. The verdict was for $ 1,814 80.

The judgment will be affirmed, with costs.

Judgment affirmed.


author: Opinion by Treat, C. J.;

text:
    Grant Goodrich et al., plaintiffs in error, vs. Alonzo Huntington, defendant in error.

      Error to Cook.

    On the dismissal of a suit, the parties are out of Court, and all further proceedings are unau* thorized, until the judgment of dismissal is vacated, and the cause reinstated.
    The appearance of a defendant, on a subsequent day of the term, and obtaining leave to withdraw his plea, does not authorize the Court to enter judgment by nil dicil.

    In order to sustain a judgment entered subsequent to the dismissal of the suit, the record should show that the order of dismissal had been vacated, or some act of the party clearly indicating that the cause should be heard and determined.
    This was an action of covenant, brought in the Cook Circuit Court, at the April term, 1841. An alias summons was issued, returnable at the October term of that year, which was served upon two of the defendants, who appeared. The declaration contained eight counts, to each of which demurrers were filed. The cause remained without further proceedings, and was continued from term to term, until November term, 1845; on the seventh day of which term, the following order was entered : “ Ordered by the Court, that this cause be dismissed, each party paying his own costs.55 Afterwards, on the 22d day of November, 1845, the defendants who had been served, came and withdrew their pleas; whereupon, a judgment was entered against them for $5,148 40, and costs. The plaintiffs in error complain of this judgment, and assign it for error.
    B. S. Morris and J. C. Champlin, for plaintiffs in error.
    J. M. Wilson, for defendant in error.
   Opinion by Treat, C. J.;

This was an action of covenant, brought by Huntington against Goodrich and others. Goodrich and Fullerton, only, were served with process. They pleaded several pleas. The record then shows this entry: Ordered by the Court, that this cause he dismissed, each party paying his own costs.55 Some two weeks afterwards, hut during the same term, an entry was made on the record, which, after reciting that, u this day comes the said plaintiff, in his own proper person, and the defendants, Alexander N. Fullerton and Grant Goodrich, who, alone, have been served with process, by their attorney, also come, and withdraw the pleas filed therein,” proceeded to enter a formal judgment, by nil dk.it, against the defendants, for $ 5,198 40. The rendition of that judgment is assigned for error.

The record presents the strange anomaly of a judgment rendered in a proceeding which had previously been dismissed, without the order of dismissal having been set aside. On the dismissal of the suit, the parties were out of Court, and all further proceedings were unauthorized, until the judgment of dismissal was vacated, and the cause reinstated. It does not appear that this was done. The fact that the defendants appeared on a subsequent day of the term, and obtained leave to withdraw their pleas, conferred no authority on the Court to enter the judgment. It does not follow that the defendants treated the case as still pending and undisposed of, merely because they made this application. They may have had a very different object in view, in withdrawing the pleas from the files. In order to sustain a judgment entered subsequent to the dismissal of the suit, the record ought either to show that the order of dismissal was first set aside by the Court, or such acts of the parties, as clearly indicated a design on their part, that the cause should he heard and determined, without reference to the previous proceedings. This record will not justify either of such conclusions. It simply states an appearance in Court by the defendants, for the purpose of withdrawing certain papers from the files of the case ; hut it fails to show that the Court had reinstated the cause, or that the parties had consented that it might be proceeded with, as if no order of dismissal had been entered. No reasonable intendment will sustain this judgment. If sustained, it must he done upon vague inferences as to what was the real state of the case.

The judgment of the Circuit Court will he reversed, with costs.

Judgment reversed.


text:
    Charles Waterman and Reuben Barrett, appellants, vs. Frederick T. Peet and Samuel H. Hitchcock, appellees.

      •Appeal from Kane.

    In a declaration on a contract specifically made payable in the county where the action is brought, it is not necessary to aver that the plaintiff resides in such county, to justify the emanation of process to a foreign county. The place of payment controls the jurisdiction.
    The statements of an agent, made to a stranger to a transaction, at another time, and after the transaction was concluded, are not admissible, to affect his principals. But his declarations, made at the the time of a transaction, might bind his principals, and would therefore be evidence.
    This was an action of assumpsit, brought in the Kane Circuit Court, by appellees against appellants, to recover the amount of a promissory note, made payable at the office of Ed. E. Harvey, at Elgin, Kane county, Illinois. Process was issued to the counties of Stephenson and Winnebago, where the defendants below resided and were served. The declaration averred, ££ that the said promissory note upon which this action is commenced, was and is made specifically payable in the county of Kane aforesaid, and within the jurisdiction of this Court.” The defendants pleaded, in defence to the action, that the note was fraudulently obtained, for a sum too large by $ 100, by the aid of one Harvey, acting as the agent of the plaintiffs below. To support this plea, defendants proposed to prove admissions to a witness, not a party to the notes, made by-Harvey the next day after the note was given, as to how the execution thereof was obtained. This was objected to, and objection sustained. Cause heard before Theophilus L. Dickey, Judge, and a jury, at the December special term of the Kane Circuit Court, 1849, and a judgment recovered for $ 357 50. Defendants below prayed this appeal.
    Loop & Hurlbut, for appellants.
    Manniere and Meeker, for appellees.
   Opinion by Treat, C. J.:

The objection to the jurisdiction of the Circuit Court, if the appellants can now insist upon it, is not well taken. It was decided in the case of Key vs. Collins, 1 Scammon, 403, that, in a declaration on a contract specifically made payable in the county where the action was brought, it was not necessary to aver that the plaintiff resided in such county, to justify the emanation of process to a foreign county. The Court, in such case, has jurisdiction, without regard to the residence of the parties. It is the place of payment which controls the jurisdiction, and authorizes process to issue to a foreign county against the debtor.

It is assigned for error, that the Court erred in refusing to dismiss the suit, because the summons was made returnable to a special term, appointed in vacation. It is a sufficient answer, to say, that this question is not presented by the record. The record shows that the process was made returnable to a special term, but it fails to show how that special term was appointed. The statute expressly provides, that suits- may be brought and process made returnable to a special term, appointed at the preceding regular term of the Court. R. S., ch. 29, sec. 43. Whether process may issue, returnable to a special term, ordered by the judge in vacation, is another question, about which we shall not now intimate an opinion. If the term in question was appointed in vacation, the appellants should have introduced the evidence of that fact into the record, by a bill of exceptions, or otherwise.

The Court decided correctly in excluding the declarations of Harvey. Plis statements were mere hearsay, not a part of the res gestae, and were, therefore, not binding on the appellees. They were not representations made to the appellants, on the faith of which they acted, but declarations made to a third person, having no interest in the subject matter about which they were made. The declarations of Harvey, made when the settlement took place and the notes were executed, may have influenced the conduct of the appellants, and were, therefore, binding on the appellees, and admissible as original evidence; but his statements to a stranger, made at another time, and after the particular transaction was concluded, were not the acts of his principals, and, therefore, inadmissible. 1 Greenleaf on Evidence, sec. 113; Story on Agency, sec. 135.

We perceive no error in the instructions of the Court.

The judgment is affirmed, with costs.

Judgment affirmed.


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    Buckner S. Morris et al., appellants, vs. The City of Chicago, appellee.

      Jlppeal from the Cook County Court of Comtrion Pleas.

    An appeal can be prosecuted from a judgment which relates to a freehold, although the act under which the judgment may have been rendered, is silent in regard to the right to appeal.
    In a proceeding under the acts incorporating the city of Chicago, which authorizes the common council to lay out streets, &c., and to make assessments, &e., in that behalf, it is erroneous to superadd the costs of such proceeding, in addition to the damages awarded to the owner of the ground.
    This was an application by the City of Chicago to the Cook Common Pleas, to have Madison street, in said city, between Wells and State streets, widened. The application was allowed, commissioners were appointed, proofs heard, and report of commissioners was filed. At February term, 1850, Spring, Judge, presiding, after hearing the exceptions to the report, the report was confirmed, and the land necessary to the opening of said street was condemned. The parties interested in'the land assessed, took exceptions to the ruling of the Court, and prayed this appeal. The points in controversy are stated in the opinion of the Court.
    J. M. Wilson, for appellants.
    J. W. Ciiickering, for appellee.
   Opinion by Treat, C. J.:

The eleventh section of the “ Act supplementary to the act to incorporate the city of Chicago, approved March 4th, 1837,” declares, that the common council shall have power to lay out, make and assess, streets, alleys, lanes and highways, in said city, and make wharves and slips at the ends of streets, and to alter, widen, contract, straighten and discontinue the same.” It further declares, whenever the common council shall desire to take or appropriate any land, or town lot, or any part thereof, not the property of the city, for any of the purposes aforesaid, they shall cause an application to he made, in writing, to some Court of record in the county of Cook, or Judge thereof in vacation, for the condemnation of such land, or town lot, or part thereof, for such purposes, and shall give notice of such application, by publishing a notice thereof, for thirty days, in the corporation newspaper. And upon such application and proof of publication of such notice being filed in the office of the clerk of said Court, the said Court or Judge shall appoint three commissioners to examine and report upon the necessity of such appropriation, and the value of such land, town lot, or part thereof, and the injury to the owner or owners thereof, respectively, in consequence of such appropriation, and at the same time to assess and apportion the said damages and expenses of said improvement on real estate deemed by them benefited thereby, as nearly as may be in proportion to the benefit resulting therefrom, after taking into consideration and making due allowance for any benefit which said owner or owners may derive from such improvement, and shall describe the real estate upon which such assessment is made. If there be any building on any land taken for such improvement, the owner thereof shall have ten days, or such time as the common council may allow, after the final assessment of the commissioners and the proceedings of the Court are confirmed by the common council, to remove the same, and in case such owner remove such building, the value thereof to the owner to remove shall be deducted from the amount of damages to be awarded to the owner thereof, and such value shall be, at the time of the assessment, determined by the commissioners, and in case of removal deducted pro rata from the assessments upon the real estate deemed benefited by such improvements.” The same section further provides, that the commissioners shall report their proceedings to the Court, and the Court may, if the proceedings are found to he fair and regular, confirm the same, and condemn the land for the purposes intended. The proceedings are then to be certified to the common council, and, if the same shall be approved by the council, an order shall he entered at large upon the records of the common council, confirming the same, and directing a warrant to he issued to the collector, for the collection of said assessment, as in other cases, and the same proceedings shall he had, in all respects, for the collection of the same, as for the collection of other taxes or assessments.”

Under the authority of these provisions, the common council presented a petition to the Court of Common Pleas, representing that they desired to widen Madison street, and for that purpose to take and appropriate a portion of certain lots bordering thereon, and praying for the appointment of commissioners to report upon the necessity of the improvement, the value of the land to be appropriated, and the injury to the owners in consequence thereof, and also to assess and apportion the damages and expenses of the improvement on such real estate as would be benefited thereby. Commissioners were appointed, in pursuance of the prayer of the petition, who reported in favor of widening the street, and the appropriation of the land for the purpose. They estimated the damages to the owners of the lots to be appropriated, to the sum of $8,740 17. To this amount they added the sum of $ 96, as compensation to the city attorney, printer, surveyor, clerk of the Court, and the commissioners, for their services in connection with the proceedings—the commissioners considering this amount as part of the necessary expenses of the improvement. The aggregate of these sums, $8,836 17, was then assessed and apportioned against the lots in the vicinity, deemed to be benefited by the widening of the street. They also reported that the buildings on the land to be appropriated, would be worth to the owners for the purpose of removal, $ 3,500, which sum they did not deduct from the aggregate of $8,836 17.

The Court made an order, confirming the report of the commissioners, and condemning the land for the purposes of the street, as prayed for by the corporation. To reverse this order, some of the parties interested have prosecuted an appeal to this Court.

It is contended by the counsel for the corporation, that an appeal will not lie in such a case. The act, under which the proceeding was had, is silent in this respect, and, if an appeal can be prosecuted, it must be by virtue of the general provision regulating appeals. The statute provides, that appeals shall be allowed in all cases, where the judgment or decree appealed from be final, and shall amount, exclusive of costs, to the sum of twenty dollars, or relate to a franchise or freehold.” R. S., ch. 83, sec. 47. In our opinion, the case is clearly within this provision of the statute. The judgment complained of clearly ¿relates to a freehold. It is a condemnation of real .estate, by which the title of the owner may be divested, and transferred to and vested in the corporation. The very object of the corporation was to acquire the fee in the land, and the order of the Court acts directly on the title. The title was necessarily drawn in question, for a party is not entitled to recover damages for the appropriation of land to public uses, unless he is the owner thereof. The commissioners had, therefore, to determine the question of title to the land, and assess damages to the proprietors, for the loss sustained by reason of the appropriation. The judgment of condemnation, if permitted to stand and be carried into effect by the corporation, would as effectually conclude the parties from afterwards asserting title to the land, as would a sale on execution, or a recovery in ejectment. We have not the slightest doubt of the right of the parties to have the proceedings reviewed in this Court.

There is a fatal objection to the proceedings of the commissioners. In addition to the damages awarded to the owners of the ground appropriated, they have added the costs of the proceeding—the whole of which is embraced in the assessment against the proprietors of the lots benefited by the widening of the street. Costs are not given by the statute regulating this proceeding; and they cannot be recovered, unless expressly given to the corporation. The damages and expenses of the improvement are only to be assessed and apportioned. The commissioners had no authority to superadd the costs of the proceeding. The owners of the property benefited by the widening of a street, can only be charged with the damages awarded to the proprietors of the ground taken for the purposes of the street, and the necessary expenses of opening the same. The words “ and expenses of said improvement” do not embrace the costs of the proceeding, but only the expenses necessarily incurred in putting the street in a proper condition to be used by the public—such as the removal of buildings, the grading of the street, and the like. The costs of the proceeding must be borne by the corporation, in the absence of any statutory provision requiring them to be taxed against and collected from the owners of the adjacent property. For this error, the order of the Court, confirming the report of the commissioners, and condemning the land for the purposes of a street, must be reversed.

A question of much importance was made on the argument, and perhaps arises in this case—involving the right of the corporation, under the constitution, to collect from the owners of adjacent property the real value, for the purposes of removal, of the buildings standing on the ground appropriated, where the owners fail to remove the same—but as it was not necessary to the decision of the case, the question has not been investigated, and, consequently, no opinion will be expressed respecting it.

The judgment of the Court of Common Pleas will be reversed, with costs ; and the cause will be remanded, to the end that further proceedings may be had in the matter. The effect of the reversal will be to vacate all of the proceedings subsequent to the filing of the petition by the corporation. The Court must, therefore, commence de novo, by the appointment of commissioners.

Judgment reversed.


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    The Town of Ottawa, plaintiff in error, vs. The County of La Salle, defendant in error.

      Error to La Salle.

    The annual meeting of the board of supervisors, under the law authorizing township organization, is in bTovomber. And the board may elect a temporary chairman, whether there is a regular chairman in existence or not.
    Any meeting of the board of supervisors, at which a quorum is present, must bo regarded as /valid.
    That portion of the law which confers jurisdiction over the county affairs upon the board of supervisors, went into operation on the first Tuesday in April, 1850.
    The county corporation was not abolished by this law. Its name was changed, but suits instituted in the old name, do not therefore abate.
    The question presented for the consideration of the Court by the parties was as to the abatement of the suit. The points raised and discussed are fully presented by the opinion of the Court.
    A. Hoes and H. G. Cotton, for plaintiff in error.
    E. S. Leland and W. H. L. Wallace, for defendant in error.
   Opinion by Mr. Justice Catón :

This suit was brought by the county against the town, previous to the adoption of the township organization law, in November last, and the cause was tried and judgment rendered in favor of the county, since the first Tuesday in April last. It is now objected, for the plaintiff in error, that the old political corporation of the county of La Salle was abolished by the adoption of the township law, and a new political body was created, by the name of the hoard of supervisors of the county of La Salle, and that hence the suit abated, upon the adoption of that law. We agree with the counsel for the defendant in error, that the annual meeting of the board of supervisors does not take place till November. The time of that meeting is made to depend upon the time of the general election. The first section of the sixteenth article of the law provides, that the board of supervisors “ shall meet annually in their respective counties, for the despatch of business ;” and the next section declares, that “the annual meetings of the hoard of supervisors shall be held on the first Monday after the general election,” &c. By determining the time of the general election, we fix the time of the annual meeting of the hoard. The ninth section of the sixth article of the constitution says, “the general elections shall he held on the Tuesday next after the first Monday of November, biennially, until otherwise provided by law.” The Legislature has not attempted to change the times of the elections, hut, by an irresistible implication, they have changed the general elections from biennial to annual, so that all of the regular November election are considered general elections. Requiring annual meetings of the board, which are to be held immediately succeeding the general elections, implies that there shall be annual general elections. Unless the general elections occur annually, the law could not have been adopted so as to go into operation at the time prescribed by the Legislature. The first section of the law provides, that the qualified voters of each county may vote for or against organization under the law, at the next general election after its passage j and the fourth section declares, that it shall go into operation on the first Tuesday in April, 1850, in the counties in which it shall be adopted. The first general election held under the new constitution, was in November, 1848, and the law was passed in February, 1849. Between that time and April, 1850, the law was authorized to he voted for, at a general election, while, according to the provisions of the constitution, no general election would occur till November, 1850. Now, unless it shall be held that the Legislature has provided for the occurrence of general elections oftener than is prescribed by the constitution, then we must say that the time has not yet arrived at which the voters could express an opinion for or against the law, for that could only be done at a general election. Requiring the people to vote at a general election, between February, 1849, and April, 1850, is, in effect, providing that a general election shall occur during that period; and as the only election which was provided for, during that time, was to take place in November, 1849, that, of course, was the general election contemplated by the law. Indeed, the second section of the election law, which was approved on the same day with the law under consideration, may be fairly construed to provide for annual general elections, for that declares, in substance, that all state and county officers shall be elected at general elections, on the Tuesdays next after the first Mondays in November, whether they are elected quadrennially, biennially or annually. We hold, then, that the Legislature has, in the exercise of the authority conferred by the constitution, provided for annual general elections ; and that, as the law now stands, at least, for all the purposes of this act, the annual November elections are general elections, and, hence, that the annual meetings of the board of supervisors must be held on the Mondays succeeding those elections. It was suggested that it might have been the intention of the Legislature that the annual meeting of the board of supervisors should be held on the Mondays succeeding the April elections provided for by the act, instead of the November elections. This, however, cannot be, for, by the first and fourth sections of article nineteen, the assessments are to be made between May and August; and by the first, sixth and seventh sections of the twentieth article, the assessment rolls are to be examined and corrected by the board of supervisors, at their annual meeting, and a warrant issued for the collection of the taxes by the fifteenth of December.

Admitting that the annual meeting of the board of supervisors cannot take place till after the November election, it was argued that, as a board, they cannot act till that time, because there is no provision of law authorizing them to organize until their annual meeting. As we have before seen, that the first section of the sixteenth article requires the board to hold annual meetings, and that it further provides, that, as a board of supervisors, they may also hold special meetings, at such times and places as they may find convenient, and shall have power to adjourn from time to time, as they may deem necessary.55 The third section says, “ the board of supervisors of each county in this state shall have power, at their annual meetings, or at any special meetings,55 to exercise the jurisdiction in that section conferred, and to perform all other duties which may be enjoined on them by any law of this state,55 &c. The sixth section declares, that ee they shall, at each annual meeting, choose one of their number as chairman, who shall preside at such meeting, and in all other meetings held during the year. In case of his absence, at any meeting, the members present shall choose one of their number as a temporary chairman.55 From this it is argued, that the board cannot hold and organize a special meeting until it is organized at an annual meeting, and that its jurisdiction cannot attach until it can organize and exercise it. That the board can only organize by the election of a chairman, may be conceded, but the argument which is drawn from the peculiar language of this section, that the board can only choose a temporary chairman after a regular chairman has been chosen, proves too much. The extent of that argument is, that as the board can only choose a temporary chairman in the absence of the regular chairman, there must be a regular chairman in existence, who may be absent, and whose place may be temporarily supplied, or else the supervisors cannot select one of their number to preside over them temporarily. Under that construction of the law, if the chairman elected at the annual meeting should die immediately after the adjournment, then no other meeting could be held during the year, for there would be no regular chairman in existence, who could be absent. An absent regular chairman being necessary to authorize them to choose a temporary one, no such choice could be made, for the want of that contingency. Indeed, by giving the law this construction, we should hold that the board will always be in a state of disorganization, and incapable of organizing or acting, between April and November, in every year, for the chairman who is elected in November goes out of office in April, and there is no more authority for electing a temporary chairman between April and November, 1851, or any subsequent year, than there is during the same period in 1850. So long as the Legislature has given the board power to hold special meetings, at such times and places as they may find convenient,” we do not think that it was intended that they should be incapable of doing so for seven months in each year. The mode of calling a special meeting is not specified in the act, and hence there is no means of testing the legality of the call, and any meeting of the board, at which a quorum is present, must be regarded as valid. Special meetings cannot be regarded as those which are held by adjournment from the annual meetings of the board, for adjourned and special meetings are both spoken of and recognized in the sixth section of the ninth article.

One of the most important provisions of this law is, that which confides the management of the county affairs to the board of supervisors, instead of the County Court. And the fourth section of the first article provides, that the county voting in favor of the adoption of the law “ shall be governed by and subject to the provisions of this act, on and after the first Tuesday in April, 1850.” This strong expression manifests an intention on the part of the Legislature, that the entire act, so far as it relates to the government of the county, should go into complete operation at that time. It is true, that an express provision, in another part of the act, postponing the operation of any portion of the law, would have the effect to defer it, but a mere failure to provide specifically for the immediate organization of the board ought not to have that effect. We are very clearly of opinion, that that portion of the act which confers jurisdiction over the county affairs upon the board of supervisors went into operation at the time specified in the fourth section of the first article ; and, even if express authority had not been given to the board to hold special meetings, that authority would have been implied, if special meetings should be found necessary, in order to carry out the provisions of the law.

But did the suit necessarily abate, upon the adoption of this new law ? We think not. The old political corporation, known as the county of La Salle, was not abolished by the law. The same artificial existence continued after as before. Sufficient of the provisions of the law has already been referred to to show this. The name by which suits should be brought to enforce the rights of or liabilities against the county, was changed, it is true, but it is only that designation that is changed, and not the corporation itself. Formerly suits by or against a county were required to be brought in the name of the county commissioners of the county. That was changed by a law which required such suits to be brought simply in the name of the county; and now we have another change, which requires them to be brought in the name of the board of supervisors of the county. But during all these changes, the county has remained the same, even in name. There are no words in the act manifesting a design to abolish the old corporation, or to create a new one. Let us look at the consequences of the construction contended for, and consequences may be considered, when seeking to arrive at the intention of the Legislature. If the corporation was abolished, as there is no provision of law conferring its rights and imposing its liabilities upon the new corporation supposed to have been created, those rights are gone, and those liabilities extinguished ; and all its real estate would revert to the grantors, because, as the party in whom the title was vested is annihilated, and has no successor, in whom the title can vest, that must necessarily go back through the same channel by which it came, to find a resting place. Hooker vs. Utica and Hudson Turnpike Company, 12 Wend., 371; Haywood et al. vs. The Mayor, &c. L., N. Y. Legal Observer, 244.

The Legislature certainly never intended to produce such a result, and we ought not to hold that they have done so, where the language of the act will reasonably bear a different construction. Here even the name of the county is not changed, but merely a change of the title in which suits shall be brought, without any change of existence or change of right in the plaintiff in the suit. But if the name of the county had been changed, the suit might still continue. The change of the name of the plaintiff in a suit would not, of itself, abate the suit. Suppose an act were passed changing the name of a natural person, who has a suit pending, would the suit thereby abate ? While the party remains the same, the suit may continue. It would be proper, no doubt, to suggest the "change upon the record, and to make the title of the cause conform to it; but if this is not done, and the defendant chooses still to go on and answer to the cause, under its former title, he ought not to be allowed to raise the objection in this Court, when his liability has been established. We are of opinion that the suit did not abate.

As, by the agreement of the parties, the other questions arising upon the record were to be continued for argument until the next term of the Court, the question of costs will be reserved till that time.