author: Trumbull, J. Separate Opinion op Catón, J.

text:
    James Kenney and Wife, Appellants, v. William Greer, Appellee.
    APPEAL EROM PIKE.
    If a court transcends the limits which the law has prescribed for it, and assumes to act where it has no jurisdiction, its decisions will be utterly void.
    The circuit courts of this State, are superior courts of general jurisdiction.
    Nothing shall he intended to be out- of the jurisdiction of a superior court, except that which specially appears to be so; on the contrary, nothing shall he intended *° '"'ithin the jurisdiction of an inferior court unless it is so expressly alleged.
    The statute which prohibits the suing a defendant out of the county where he resides or may be found, .gives him a privilege which he will he regarded as having waived, unless he malees his objection in apt time.
    Unless a defendant, when sued in a foreign county, insists upon the privilege which the statute gives him, either by motion or plea in abatement, it will be presumed either that he has waived his right, or that the facts existed, which authorized a suit against Mm in a foreign county.
    The cases of Key v. Collins, 1 Scam. 403; Gillet v. Stone, Ibid. 547; Evans v. Crozier, Ibid. 548; Shephard v. Ogden, 2 Scam. 257; Wakefield v. Grundy, 3 Scam, 133; Clark v. Harkness, 1 Scam. 56; Clark v. Clark, 1 Gilman, 33; Boilvin v. Edwards, 4 Gilman, 115; Semple v. Anderson, 4 Gilman, 546, reviewed, considered, and partly overruled.
    Thís was an action of ejectment by appellants against appellee, at March term, 1851, of Pike County Court.
    Declaration and notice served 29th of March, 1851, for the following premises, in Pike county, Illinois : “A piece or parcel of land, in the town of Greggsville, commencing at a stone 11 chains 75 links south, 89| east, from comer of sections 14,15, 22, 23, and running south 89§ east, 8.50 chains to a stone, thence south 6.75 chains to a stone, thence north 89?,- west, 8.50 chains to a stone, thence north 6.75 chains to the place of. beginning, containing 5®-, more or less, in town 4 south, range 3 west, 4th principal meridian.”
    Plea, not guilty, filed, and joinder thereon.
    At October term, 1851, jury sworn to try cause; verdict, under instructions of court, for defendant.
    Motion for new trial. Motion overruled, and judgment against plaintiffs for costs. Bill of exceptions taken. Appeal, prayed, and allowed.
    Bill of exceptions admits possession of defendant, at the time of service of declaration, of premises described above. Admits that James A. Kenney, one of appellants, is husband of Mary Kenney, the other appellant. Admits that, at the time of rendition of judgments, making of copy and execution of sheriff’s deed, hereinafter set forth, Uriah Brown, the defendant in said judgment and execution, was the owner in fee-simple of premises described in plaintiff’s declaration; and that plaintiff then offered in evidence a record of Circuit Court, Pike county, Illinois, in a suit therein, wherein Thomas G. Little was plaintiff, and Uriah Brown, aforesaid, was defendant, in which suit judgment was rendered against said Brown.
    1. Summons to sheriff of Schuyler county, with return of service, by reading, to Brown, by sheriff of Schuyler county, on 22d August, 1843.
    2. Declaration in said cause on seven promissory notes.
    3. At September term, A. D., 1843, of said Pike Circuit Court, the following judgment was rendered in said cause.
    Thomas G. Little v. Uriah Brown.
    This day came the plaintiff, by his attorney, and the defendant, having been duly served with process, and being called and not appearing, but therein making default: It is considered by the court, that plaintiff recover of defendant nine hundred and nine dollars. The debt, in declaration mentioned, also the damages sustained by reason of non-payment of said debt. And because Said damages are unknown, and depend upon computation of interest only, the clerk is ordered to assess the same, who forthwith reports that said damages amount to $156.10, which report, being approved, it is considered that the plaintiff recover of the defendant the damages aforesaid, also his costs.
    The plaintiff then offered in evidence an execution in the usual form issued upon said judgment, to the sheriff of Pike county, on 13th June, 1848, and the levy thereon, indorsed by said sheriff, on 15th June, 1848, on the premises described in said declaration in ejectment herein, as property of Uriah Brown5 the defendant in execution. Also, indorsement and return by said sheriff on said execution of sale of premises hereinbefore described to Mary Kenney one of appellants, for $65.65, on Sept. 9, 1848.
    The Court, on motion of defendant’s counsel, refused to permit said judgment, execution, levy, and sale thereon, to be read in evidence before the jury, and excluded the same; to which several opinions and decisions of the court in refusing to permit said plaintiff to read said judgment, execution, levy, and sale thereon, in evidence to the jury, and in excluding the same from the jury, plaintiff then and there excepted.
    Plaintiff then offered in evidence a deed, with the certificates thereon indorsed, for the premises described in plaintiff’s declaration from Daniel D. Hicks, sheriff of Pike county, aforesaid, to Mary Kenney, one of the appellants, in the usual form, dated August 12th, 1850, reciting the rendition of the foregoing judgment to Uriah Brown, and tjie execution, levy, and sale, herein-before set forth; said deed was duly acknowledged, and was recorded in Recorder’s office of Pike county, aforesaid, on 12th of August, 1850.
    J. Grimshaw and R. S. Blackwell, for appellants.

      Facts. This was an ejectment by plaintiffs in error against defendant in error for a parcel of land in Griggsville, Illinois. On the trial, plaintiffs, to show title, offered the record of the Pike Circuit Court, September term, 1843, in the case of Thomas G. Little v. Uriah Brown, which was an action of debt §909, damages §600. Summons was directed to sheriff of Schuyler, and there duly served on Brown. Declaration counts on eight promissory notes, and avers that the cause of action accrued in Pike, but makes no averment that plaintiff resided there. Brown made default, and judgments for §909 debt and §146.10 damages, which recites due service of process. An execution issued regularly, levied on the land in controversy. Sold to Mary Kenney, one of the plaintiffs in this suit. Sheriff’s deed duly executed. At the time of the judgment, levy, and sale, Brown was the owner in fee. Defendant in possession when suit commenced. Judgment for defendants.
    The question is whether the judgment in Little v. Brown is void for want of jurisdiction in the Circuit Court of Pike county ?
    It is admitted, that to constitute a valid judgment it must have been rendered by a tribunal having jurisdiction of the subject-matter of the suit and over the person of the defendant.
    A court has jurisdiction of the subject-matter where by law power and authority are conferred upon it to hear and determine the particular cause of action in controversy between the parties to the suit. And it has jurisdiction of the person of the defendant when he voluntarily appears to the action, or is personally served with process, or has constructive notice of the pend-ency of the suit. Gilman v. Thompson, 11 Verm. R. 648.
    There is no pretence but that the Circuit Court in this instance had jurisdiction of the subject-matter. The statute expressly confers upon the court power to hear and determine “ all matters and suits at common law and in chancery arising in each of the counties in their (the judge’s) respective circuits, where the debt or demand shall exceed twenty dollars.” Rev. Laws, 1833, p. 151, 152, § 18.
    And the court acquired jurisdiction over the person of the defendant by the service of process upon him. Kennedy, et al. v. Georgia State Bank, 8 How. U. S. Rep. 611.
    It is true the court acquired this jurisdiction irregularly, and its judgments might have been reversed upon writ of error or appeal; but it cannot be impeached collaterally.
    The act of December 20, 1828, provides, “that hereafter it shall not be lawful for any plaintiff to sue a defendant out of the county where the latter resides or may be found, except where the debt, contract, or cause of action accrued in the county of the plaintiff, or where the contract may have specifically been made payable,” &c. R. L. 1833, p. 145.
    This privilege of the defendant is not strictly the subject of a plea to the jurisdiction of the court, but is rather to be classed among pleas in abatement to the person of the defendant. Harrison v. Rowan, Peters, C. C. R. 489; Logan v. Patrick, 2 U. S. Cond. R. 259; Cleveland v. Welsh, 4 Mass. R. 591; Hughes v. Martin, 1 Ark. R. 463.
    It was never intended as an exception to the general grant of jurisdiction, conferred upon the Circuit Court by R. L. 1833, p. 151, § 18.
    The object of the act was to restrain a previous practice which had obtained of sending process from one county to another to bring the defendant into a county where he did not reside, and was productive of much oppression. Brewster v. Scarborough, 2 Scam. 282.
    According to the rules of pleading, and the practice of the superior courts of England, a plea to the jurisdiction, or in abatement, on account of the infringement of the personal privilege of the defendant, was necessary to raise the objection. 1 Chit. Pl. 441-445; Wood v. Mann, 1 Sumn. R. 578; Hughes v. Martin, 1 Aik. R. 463; Cleveland v. Welsh, 4 Mass. R. 591.
    This was the established practice in every superior court. But our court departed from it, and laid down the rule, which has ever since been adhered to, that to authorize the court to issue its process to a foreign county, there should be an averment in the declaration, “that the cause of action accrued in the county where the suit is brought, and that the plaintiff resided there.” Clark v. Harkness, 1 Scam. 56.
    This case was founded upon the authority of Turner v. Bank of North America, 4 Dall. R. 8, in which case Ellsworth, C. J., treated it as a technical question, and said, “ It is exceedingly to be regretted that exceptions which might be taken in abatement and often cured in a moment, should be reserved to the last stage of a suit, to destroy its fruits.”
    The soundness of the practice of this coiu't has been questioned in a recent decision, in Haddock v. Waterman, 11 Ill. R. 477, 478. Catón, C. J., says, “ Were the question before us for the first time, we might and probably should follow the rule indicated in the case of Foot v. Stevens, 17 Wend. 483, and hold that none of these averments were necessary, upon the familiar principle that every presumption is in favor of the jurisdiction and proceedings of superior courts of general jurisdiction.”
    This was the doctrine of the Court of King’s Bench in England, where the question arose upon writ of error. Peacock v. Bell, 1 Saund. R. 73. This case was recognized and its doctrine applied to a writ of error in Hart v. Seixas, 21 Wend. R. 40.
    The case of Turner v. Bank of North America, 4 Dali. 8, had no adjudged case to support it, and none was cited by the court in its opinion; and the case of Ld. Coningsby, 9 Mod. 95, relied upon by Ingersoll for plaintiffs in error, was relative to a special jurisdiction, and arose upon a demurrer to a bill in equity. The case of Bingham v, Cabot, 3 Dall. 382, had no authority to support it. But, taire the cases as they stand in our court and in those of the United States, the doctrine has settled down into a mere technical question.
    An appearance and pleading is a waiver of the privilege; and on demurrerthedeclarationmay be amended. 3 Scam. 134. Shepherd v. Ogden, 2 Scam. 260. Besides, the averment need not be proven.
    If the court had no jurisdiction when the process issued, it is difficult to conceive how a declaration afterwards filed can confer it.
    And it is still more difficult to understand why it is when the defendant demurs for want of jurisdiction ; the defect can be cured by amendment. The true rule now is, and always was, that, upon writs of error to reverse the judgments of a superior court of general jurisdiction, their jurisdiction will be presumed.
    Is not the “ Circuit Court” a superior court of general jurisdiction ? It is created by the constitution, anc^.a portion of the judicial power of the government is vested in it. Its jurisdietion is general “ over all matters and suits at common law and in chancery.” R. L. 1833, p. 152, § 18. It has “power and authority to hear and determine all cases of treason, and other felony, crimes, and misdemeanors whatsoever.” R. L. 1833, p. 152, § 20. Its jurisdiction is exclusive of all other courts in the State, save in a few excepted cases. It exercises a general superintending authority over all inferior tribunals, by appeal certiorari, mandamus, and procedendo. They exercise all of the powers of the King’s Bench and Common Pleas in England. Brinkerhoff v. Beaubien, 2 Scam. 273, 274. It is a court of record, and proceeds according to the course of the common law. Its records import absolute verity. A writ of error lies upon its judgments. Intendments are indulged in by this court, to support its judgments. A party complaining of its errors upon the trial of a cause must procure the evidence to be placed upon the record by bill of exceptions, and put his finger upon the error relied upon. Its judgment is conclusive between parties and privies. On plea it may determine its own jurisdiction. It has a seal which proves itself; a permanent location; established terms ; organized process; executive officers; has its regular attorneys and solicitors ; and its functions do not cease with the determination of a particular cause. And shall it be said to be an inferior court, in the technical sense of that term? It is true the court is one of limited jurisdiction; so are the Supreme, Circuit, and District Courts of the United States; so are the King’s Bench and Common Pleas in England. 9 Mod. 95.
    The term, limited, is ambiguous, and is often confounded with the word special. Every court is limited in its jurisdiction by the constitution and laws. This court is limited to ■ appellate jurisdiction only, except in certain specified cases.
    The true distinction is between such courts as possess a general, and such as have only a special jurisdiction, for a particular purpose, or clothed with special powers for the performance of specific duties, beyond which they have no manner of authority, and these specific powers to be exercised in a summary way, either by a tribunal already existing for general purposes, or else by persons appointed for the special purpose. Den v. Hammel, 3 Harrison, N. J. Rep. 78, 79.
    Such a court is entitled to every presumption necessary to uphold its authority. And it is for the party objecting to the jurisdiction to establish the contrary. The distinction is well expressed in Thatcher v. Powell.
    The authority of a court of general jurisdiction is presumed. But the record of a court of special powers must show upon its face the jurisdictional facts.
    Where a court has no jurisdiction, the judge, the plaintiff, and the civil officers executing its judgments, are trespassers, and liable in damages to the injured party. Den v. Hammel, 3 Har. R. 78; Bigelow v. Stearns, 19 Johns. 39; Egerton v. Hart, 8 Verm. 208. The courts will indulge in no criticisms where such results are to follow.
    Suppose no declaration is filed at all, yet a judgment is pronounced in the cause. Is it void, or merely voidable 1 Or suppose a declaration was filed, but lost. Before the declaration is filed, a capias ad respondendum is issued, .and the defendant arrested. Is the officer a trespasser ? Where does the jurisdiction attach ?
    Every court is the guardian of its own jurisdiction. Kendrick v. M’Quary, Cooke, R. 480. And is bound in every case to inquire whether the facts presented by the record give jurisdiction. Stamps v. Newton, 3 How. Miss. R. 34. The presumption of law is that they have done so. Gregrion v. Astor, 2 How. U. S. R. 319. And their decision upon the question of jurisdiction is as binding, until reversed, as any other adjudication during the progress of the cause.
    A defendant may have his writ of error. If he lies by for five years, he is concluded. This is conclusive of his acquiescence in the judgment. Evans v. Perciful, 5 Ark. 429, 430, 431; Vorhees v. United States Bank, 10 Pet. R. 449; Swiggart v. Harber, 4 Scam. 377.
    Pleas to the jurisdiction are never favored. The declaration in this case avers that the cause of action accrued in Pike. The Circuit Court decided it had jurisdiction.
    This very question has arisen in the United States courts collaterally, and the case in 4 Dali. 8, cited in support of the position that the judgment waá void; and the court denied the proposition to be law. M’Cormack v. Sullivant, 6 U. S. Cond. 71; Kempe v. Kennedy, 2 U. S. Cond. 225; Watkins’s Case, 3 Pet. R. 193 ; Kennedy v. Georgia State Bank, 8 How. U. S. R. 610 - 612, and 614. Cases on the same point: Williams v. Armroyd, 2 U. S. Cond. 556; Van Wormer v. Albany, 15 Wend. 262; Huntington v. Charlotte, 15 Verm. 46; Fudge v. The State, 3 Gill & J. 112; Haner’s Appeal, 5 Watts & Serg. 473, 474; Prigg v. Adams, 2 Salk. 674; Gorrill v. Whittier, 3 N. H. R. 265; Paine v. Moreland, 15 Ohio, 435; Vorhees v. United States Bank, 10 Pet. R. 449; Cochran v. Loring, 17 Ohio, 431, 432; Gilman v. Thompson, 11 Verm. R. 643.
    You blow up with gunpowder the whole jurisdiction, if such a purchaser is not protected. Windham v. Windham, 3 Oh. Rep.. 12; Bostwick v. Perkins, 4 Geo. R. 50. The general rule is that jurisdiction is presumed, and it must affirmatively appear that the court had no jurisdiction.
    A purchaser is not bound to look behind the judgment or decree of a court of general jurisdiction. Gregrion v. Astor, 2 How. U. S. R. 340-343.
    Let it be remembered, that all of the former decisions of this court were upon writ of error; that this case arises collaterally; that at common law it must have been pleaded in abatement; that even on writs of error the presumption was indulged in to support the jurisdiction; that the former decisions were on a question of practice. This presents it as a rule of property. Then apply Judge Caton’s rule, “ we are not disposed to extend ” the doctrine. 11 Id. 478.
    Warren & Edmonds, for appellee.
    Court proceeded extraterritorially. Want of jurisdiction presumed unless directly averred. 11 Ill. 476; 1 Scam. 4045; 1 Scam. 57; 2 Scam. 259, 260, 274; 3 Scam. 134; 4 Scam. 303; 4 Gilm. 508, 509.
    Court may collaterally inquire into the jurisdiction of the court rendering a judgment under which any benefit is sought to be derived, 19 J. R. 33, 39 to 43; 3 Denio, 28; 3 Coms. 137; 8 How. 541, 542, 543; 9 Cowen, 228, 229; 8 J. R. 90, 194, 197; 6 Wend. 453; 6 Hill, 416, 417; 15 J. R. 141; 11 Wend. 652; 11 Mass. 513; 1 Peters, 474, 475, 477 ; 2 Coms. 466, 467, 468; 4 Scam. 371; 3 Scam. 107, 108; 4 Peters, 471, 472; 10 Peters, 474, 475, 477; 2 Peters, 163, 169; 2 McLean, 511, 514; 11 N. H. 191,198, 299, 305, 306, 309; 8 S. & M. 505, 517, 518, 519.
    The court having sent its process out of its county, is notice to a purchaser of a want of jurisdiction, and sufficient to put him upon inquiry. Pelman v. Gaty, 5 Gilm. 186.
   Trumbull, J.

The chief difficulty in this case arises from decisions of this court heretofore made, respecting the jurisdiction territorially of the Circuit Court. Were the question now for the first time presented, it could scarcely admit of doubt, that the proper decision would be to hold that the Circuit Courts of this State were courts of general, superior jurisdiction, and that every case should be presumed to be within their jurisdiction, unless the contrary affirmatively appeared.

The only objection to the record offered in evidence was, that it did not appear upon the face of the proceedings, that the plaintiff resided in the county in which the suit was brought. The action was instituted in the county of Pike, and the process sent to and served upon the defendant in the county of Schuyler. The declaration alleged that the cause of action arose in the county of Pike, but contained no averment, nor was there any thing in the record to show that the plaintiff resided in that county, nor that the defendant resided in the county of Schuyler, where he was served with process.

The second section of the Practice Act, Rev. St. 413, which is but a reenactment of previous statutes, declares: “ It shall not be lawful for any plaintiff to sue a defendant out of the county where the latter 'resides or may be found, except in cases where the debt, .contract, or cause of action accrued in the county of the plaintiff, or where the contract may have been specifically made payable ; when it shall be lawful to sue in such county, and process may issue against the defendant to the sheriff of the county where he resides. And in every species of personal actions in law or equity, when there is more than one defendant, the plaintiff commencing his action where either of them resides, may have a writ or writs issued, directed to any county or counties, where the other defendants, or either of them, may be found.” Under this statute, as expounded by this court in the cases of Key v. Collins, 1 Scam. 403; Gillet v. Stone, 1 Scam. 547; and Clark v. Clark, 1 Gilm. 33, the Circuit Court had no jurisdiction of the case, the record of which was offered in evidence. It was expressly decided in those cases, that an averment that the cause of action arose in the county where the suit, was brought, was not sufficient to give the court jurisdiction to send its process to a foreign county, without the further averment that the plaintiff resided in the county where the action was commenced. These cases were based upon that of Clark v. Harkness, T Scam. 56, where the court say, “ a Circuit Court, however, is of limited jurisdiction, and has cognizance, not of causes generally, but of such only as arise within the county. This renders it necessary, because the proceedings of no court can be deemed valid, further than its jurisdiction appears, or may be fairly presumed, to set forth upon the record the facts which give the jurisdiction expressly, or such as by legal intendment may render that jurisdiction certain.”

The principle of these decisions has been recognized in several other cases. Evans v. Crozier, 1 Scam. 548; Shepard v. Ogden, 2 Scam. 257; Wakefield v. Grundy, 3 Scam. 133; Boilvin v. Edwards, 4 Gilm. 115, and Semple v. Anderson, 4 Gilm. 546.

In this last case the court went a step further than in any of the others, and held that the court had not jurisdiction in a case where one of two defendants was served with process in the county where suit was brought, and the other in a different county, without an averment in the declaration to show that the defendant served in the county where suit was brought, resided in that county. In none of the cases was a plea to the jurisdiction interposed; but they were all decided upon the broad ground, that it was a presumption of law, that the Circuit Court did not have jurisdiction to send its process to a foreign county, unless the facts to give the jurisdiction affirmatively appeared upon the face of the proceedings.

If the principle of these decisions is to be adhered to, and the Circuit Court, as was said in the case of Clark v. Harkness, is of limited jurisdiction, and has cognizance, not of causes generally, but of such only as arise within the county,” and if it be a presumption of law, in the absence of any averment in the record, that such court acts without authority whenever it sends its process to bring in a defendant beyond the limits of the county from whence it issues, it inevitably follows, that in such case its proceedings are nullities, and void even collaterally. No principle is clearer than, if a court transcends the limits which “the law has prescribed for it, and assumes to act where it has no jurisdiction, its decisions will be utterly void, and entitled to no consideration, either as evidence or otherwise; and most emphatically is this so in reference to the decisions of a court of limited jurisdiction, as the Circuit Court has been denominated in the cases already referred to. Borden v. Fitch, 15 Johns. 121; Mills v. Martin, 19 Id. 33; Shaeffer v. Gates, 2 B. Mon. 453; Gwin v. McCarrol, 1 S. & M. 368; Bigelow v. Stearns, 19 Johns. 39; Lessees of Snyder v. Snyder, 6 Bin. 48; Smith v. Rice, 11 Mass. 507; Sherman v. Ballou, 8 Cow. 304.

There is sometimes difficulty in determining whether a court has or has not jurisdiction of a particular case; but, that once determined, the consequences that are to flow from the decision are well understood, and the want of jurisdiction being established, the proceedings of such court are absolute nullities, except perhaps so far as they may, under some circumstances, be resorted to as a protection to an officer executing their process.

Reference has been made to several cases decided by the Supreme Court of the United States, for the purpose of showing that a judgment is not void, when it comes in question collaterally, although the court had no jurisdiction to render it. Those cases do not establish such a principle; but they do settle this principle, that the judgments of the Circuit Courts of the United States are not to be presumed to have been entered without jurisdiction, because the facts to give such jurisdiction do not aflh'matively appear upon the face of the proceedings ; and that court decided the same way, that the want of jurisdiction was a matter of abatement, and that the jurisdiction would be presumed, although not stated, even in a direct proceeding, if the party failed to make the objection for want of jurisdiction, till after a case had once been remanded by the Supreme Court. Washington Bridge Company v. Stewart, 3 Howard, 413; Skillern’s Executors v. May’s Executors, 6 Cranch, 267. This court, however, decided differently, in the case of Semple v. Anderson, and held, that after a case had been remanded to the Circuit Court, with directions to overrule a motion in arrest of judgment, it was not too late to object1 to the jurisdiction.

I am unable to appreciate the reason why the presumption of law as to jurisdiction, should be one way when the record is viewed in a direct proceeding, and directly the contrary when the same identical record is inspected collaterally. If it be a presumption of law, that the court acts without authority unless the facts to give it jurisdiction appear upon the face of its proceedings, then, whenever1 such proceedings' come in question, and there is an omission to aver the facts that give jurisdiction, the court is bound to intend affirmatively, just as much as if the facts showing the want of jurisdiction were set forth upon the face of the record, that it acted without authority, and in such case there could be no doubt that the proceedings would be void.

The decisions, however, in this State, as to the character of the Circuit Courts, and the necessity for showing affirmatively, in all cases where process is sent out of the county, the facts which, under the statute, would authorize sending it abroad, have not been uniform, and in my opinion the whole foundation of the decisions quoted has long ago been swept away.

In the case of Brewster v. Scarborough, 2 Scam. 282, the court use this language: “ The circuit courts are courts of general original jurisdiction, and are exclusively vested with jurisdiction in civil cases, except those of justices of the peace, whose jurisdiction is limited to sums of one hundred dollars.”

In the case of Wells v. Mason, 4 Scam. 88, the court held that a case formerly pending in the Municipal Court of the city of Alton, had been legally transferred to the Madison Circuit Court, although there was nothing in the record showing that the contingency had happened, which would authorize the Circuit Court to take jurisdiction of the case, upon the principle that “every presumption is to be made in favor of the jurisdiction of a court of general jurisdiction.”

In the case of Beaubien v. Brinkerhoff, 2 Scam. 272, the court say, “ In relation to superior courts, or courts of record, the law is, that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court, but that which is expressly alleged.” The court then inquire to what class of courts the circuit courts of this State belong, arid say, “ The circuit courts are the only superior courts in the State, that possess original and unlimited jurisdiction. They exercise within their respective counties all the powers and jurisdiction of the courts of King’s Bench and Common Pleas, in England; and although these courts are inferior to the Supreme Court, because appeals and writs of error lie from their decisions to the Supreme Court, yet this circumstance does not constitute them inferior courts, in the common law sense of the term. Courts not of record, are denominated inferior courts ; because, if their proceedings are questioned in the superior courts, they must specially show that they acted within their jurisdiction. The circuit courts are preeminently the superior courts of this State ; and as the Municipal Court of the city of Chicago possesses concurrent jurisdiction within the city of Chicago and the county of Cook, with the Circuit Court, it must be considered a superior court. Now, for any thing that appears in the declaration at bar, the Municipal Court may have had jurisdiction. The note may have been executed in Chicago, which would have given jurisdiction. The plaintiff and defendant may also have resided in Chicago, or the county of Cook. In one of these ways the Municipal Court may rightly have had jurisdiction, both of the person and of the cause of action; and, as it does not appear from the declaration but that some one of the facts existed, which would have given the Municipal Court jurisdiction, this court, upon the rule laid down above, is bound to intend, that the Municipal Court had jurisdiction, both of the person and of the subject-matter of the action.”

This case, in my judgment, lays down the correct doctrine, and although professing to be in harmony with the decision in the case of Key v. Collins, it establishes an entirely different principle.

Is the Circuit Court any the less a superior court or a court of record, when it sends its process to a foreign county, than when it is directed to the sheriff of the county where it sits ? Does not the statute expressly authorize process to issue to foreign counties in certain cases, and is it not the doctrine of this case, that nothing is to be presumed to be out of the jurisdiction of a superior court, but that which specially appears to be so ? For any thing that appeared upon the face of the proceedings in the case of Key v. Collins, or that appears upon the record offered in evidence in this case, the cause of action may have arisen, and the plaintiff have resided in the county where the suit was brought; and if so, why, upon the principle laid down in the case of Beaubien v. Brinkerhoff, did not the court have' jurisdiction ?• If the Circuit Court is a superior court of general jurisdiction, when its process issues to the county where it sits, I cannot perceive how it becomes an inferior court of limited jurisdiction, the moment it issues process to some other county.

In the cases of Hubbard v. Hubbard, 2 Scam. 299, and Hunter v. Sherman, 2 Scam. 544, the court hold expressly, that a superior court of general jurisdiction will be presumed to have jurisdiction till the contrary is made to appear.

There is another class of cases in which it has been decided, that even when process is sent to a foreign county, the facts authorizing it to be sent to such county need not affirmatively appear to give the court jurisdiction. The cases of Gillet & Gordon v. Stone, 1 Scam. 539; and Haddock v. Waterman, 11 Ill. 474, could not have been sustained, if it were necessary to the jurisdiction that all the facts authorizing a defendant to be sued out of the county of his residence should appear upon the face of the proceedings. The declaration in neither of those cases contained any allegation respecting the residence of the defendant, and according to the terms of the statute it is just as essential that the process should be sent to the county where the defendant resides, as it is that the cause of action should have arisen in the county of the plaintiff. The distinction attempted to be drawn between the case of Haddock v. Waterman and some of the other cases, is more artificial than sound. Why should the jurisdiction depend upon the existence of facts within the county where it is exercised, any more than upon their existence in the county to which the process is sent, when the law makes no such distinction? or why should the residence of the plaintiff be any more potent in determining the jurisdiction of the court than that of the defendant, when the statute uses the same language as to both ? If an averment that the plaintiff resides in the county where the cause of action arose, is necessary to authorize the issuing of process to a foreign county, it would seem to be equally necessary to aver that the defendant resided in the county to which the process was sent, when the statute in such a case only authorizes process to “ issue against the defendant to the sheriff of the county where he resides.” That the residence of the defendant is as important as that of the plaintiff, in determining the jurisdiction of the court, is expressly decided in the case of Semple v. Anderson, where the only objection to the jurisdiction was, that the declaration did not show that Semple was a resident of the county in which the suit was brought, and where he was served with process. The case of Linton v. Anglin, 12 Ill. 284, is also directly at war with the decision in the case of Semple v. Anderson. In the former case, where it appeared by the record that the defendant did not reside in the county where he was served with process, the court nevertheless sustained, jurisdiction, construing the word resides, “ to include the place where the defendant, for the time being, might be, whether that was his permanent place of residence or not,” while in Semple v. Anderson the court intended, in the absence of all evidence of the fact in the record, that the defendant did not reside in the county where he was served with process.

In view of all"these decisions, which it must be admitted conflict in principle with each other, I feel at liberty to treat the question now presented unembarrassed by any of them. The jurisdiction of the circuit courts of this State, and of the judges thereof in their respective circuits, is extended by statute u over all matters and suits at common law and in chancery, arising in each of the counties in their respective circuits, where the debt or demand shall exceed twenty dollars.” Rev. Stat. ch. 29, § 29. By a fiction of law, all transitory actions are supposed to arise in the county where the action is brought. The practice in pleading is, after setting forth truly the place where the contract was entered into or the liability incurred, to aver under a videlicet, that such place was within the county wherein the suit is pending, and by this allegation which is not traversable, though untrue in' point of fact, all causes of action of a transitory character are brought within the jurisdiction of the Circuit Court of the" particular county where the plaintiff may choose to sue.

Power is given to the Circuit Courts by § 30, Id., “ to award throughout the State, and returnable in the proper county, writs of injunction, ne exeat, habeas corpus, and all other writs and process that may be necessary to the due execution of the powers with which they are or may be vested.” § 31. “ The said courts shall respectively have power to hear and determine all cases of treason and other felony, crimes, and misdemeanors of whatever kind, that may be committed within any county or place within their respective circuits, and that may be brought before them by any rulés and regulations provided by law.” The Circuit Court is also a court of record, has a seal and clerk. Id. § 35, 40.

. If these various statutory provisions, and they have been substantially the same since 1819, do not constitute the Circuit Courts in this State superior courts of general jurisdiction, I know ‘ not what would. They are the only courts of general, original jurisdiction in civil and criminal matters in the State, and possess every attribute of courts of record of géneral jurisdiction proceeding according to the course of the common law.

Assuming, then, that the Circuit Court of Pike county is a court of general jurisdiction, and I take the rule to be abundantly settled, it is to be presumed to have had jurisdiction of every case adjudicated by it, till the contrary appear.

In the case of Peacock v. Bell, (1 Saund. R. 74,) which is a leading case upon the question of jurisdiction, it is said, “ The rule for jurisdiction is this, that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so; and, on the contrary, nothing shall be -intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.”

- The rule thus clearly laid down has been recognized and adopted—I had almost said universally — by all courts from that day to this. Wheeler v. Raymond, 8 Cow. 311; Foot v. Stephens, 17 Wend. 483; Bloom v. Burdick, 1 Hill, 139; Sir Thomas Cooke Winford v. Powell, 2 Lord Raymond’s Rep. 1310; Mills v. Martin, 19 Johns. 33; Bac. Ab. tit. Courts, D. 3.

. Apply the rule, above laid down, to the record of the Pike Circuit Court, offered in evidence, and there cannot be a doubt that the objection that the case was not within its jurisdiction is wholly untenable.

In the absence of any thing in the record to show where the parties resided, the presumption of law is that their residences were such as to give the Circuit Court of Pike county jurisdiction over their persons. Unless such be the presumption, there is no distinction in this respect between courts of general and of limited jurisdiction.

If it be necessary to set forth upon the face of the proceedings the facts which authorized the Circuit Court of Pike county to send its process to a foreign county, then the rule that courts of general jurisdiction are to be presumed to have had jurisdiction till the contrary appears, means nothing, for there is no need of presumption where there is direct proof.

The statute prohibiting the suing a defendant out of the county where he resides or may be found, except in certain cases, was passed subsequently to the acts conferring upon the Circuit Court general jurisdiction of all actions arising in the county, and was enacted for the benefit of defendants, not to limit the jurisdiction of the Circuit Courts. Its object was to restrict a practice which had before obtained of suing the defendant in any county of the State which the creditor might elect, and thereby prevent vexation to a defendant in being wantonly sued in a remote county.

The statute gives the defendant a privilege, and being a privilege he has consequently the right to waive it, and must be regarded as having done so unless he makes his objection to the writ in apt time; for the exception is not to the jqrisdiction of the Circuit Court, which, as before shown, has cognizance of all transitory actions, but to the writ as sued out and returned in a wrong county. Cleveland v. Welsh, 4 Mass. 591; Briggs v. Bank of Nantucket, 5 Mass. 94; Hughes v. Martin, 1 Ark. 433.

It was enacted- by a statute of Alabama, as follows: “ No freeholder of this territory shall be sued out of the county of his permanent residence; ” and the courts of that State have held that the proper mode of taking advantage of this statute by n defendant, when sued in a foreign county, is to plead in abatement.-

So in New Hampshire, under a statute which declares “ that all personal or transitory actions, where both parties are inhabitants of this State, may be commenced in the county wherein either of the parties to the suit may be an inhabitant, and not elsewhere in this State,” the courts of that 'State hold, that if the objection appear on the face of the writ, the writ may be quashed on motion; otherwise the objection must be taken by plea in abatement. Evans v. Carlisle, 3 N. H. Rep. 130. Unless, therefore, the defendant, when sued in a foreign county, insists upon the privilege which the statute gives him, either by plea in abatement or by motion at the proper time, the court is bound to presume, either that he has waived his right of being sued in his own county, or else that' the facts existed which authorized a suit against him in'the foreign county.

So far from holding that the record offered in evidence was void for want of jurisdiction over the person of the defendant, we are of opinion, that the objection that the defendant was sued out of the county of his residence could not have been taken advantage of by the defendant in the original action except by plea in abatement, or perhaps by motion interposed before pleading to the merits of the action; and the cases heretofore decided conflicting with this view, must be regarded overruled.

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

Separate Opinion op Catón, J.

I agree that this judgment-must be reversed, and I have no difficulty in arriving at that conclusion, without disturbing any of the former decisions of this court. It is not a light thing, in my estimation, to. overturn a uniform class of decisions, running through nearly every volume of our reports during the last nineteen years. And when, in a new case, I can arrive at correct conclusions without doing so, I much prefer it. In my judgment the decisions of this court have been uniform, that where the Circuit Court has sent original process beyond the county, the declaration must show that those facts exist within the county, which by the statute authorized the court to exercise such extraterritorial jurisdiction, whenever the question has arisen directly on appeal or writ of error. This was attempted to be shown in the opinion of this court, in the case of Waterman v. Haddock, 11 Ill. 474. In that case I took occasion to express my regret that it had ever been decided that it was necessary to aver in the declaration any of those facts which authorizes a resident of one county to be sued in the Circuit Court of another, and that the doctrine of those decisions should not be extended beyond the rule which the facts and decisions in those cases absolutely required. If it is ever pardonable to draw subtle distinctions, it is when we are seeking not to extend a doubtful or erroneous doctrine, and where that doctrine is too well settled by authoritative decisions to allow us to subvert it. If the distinction there drawn was not sound, and that case was the same in principle as those which had gone before, then was the time to have overruled them, when the question was raised directly, and just as it had arisen in all the previous cases, and not to give those cases additional sanction by recognizing their validity, instead of waiting for a subsequent occasion, when the question is raised in an entirely different and collateral way, and when there is abundant authority, directly in point, for arriving at the conclusion which we all think proper, without touching those decisions at all. The case of Beaubien v. Brinkerhoff, 2 Scam. 273,1 do not think conflicts at all with the decisions previously or subsequently made. There the statute had expressly conferred upon the Municipal Court concurrent jurisdiction with the Circuit Court of Cook county, and consequently it had a right to send its process wherever that court might have done under the same state of pleading; and as the process was not sent beyond that county, no special averments were required to support the authority. The case of Clark v. Harkness, 1 Scam. 56, was the first decision made on this subject, and there the court relied upon the decision of the Supreme Court of the United States, made in the case of Turner v. Bank of North America, 4 Dallas, 8. Considering that a just analogy exists between the circuit courts of this State and those of the United States. In the case of Clark v. Harkness, the Court quotes from the opinion of the Supreme Court of the United States, as follows: The facts upon which the jurisdiction arises must be either expressly set forth, or in such a manner as to render them certain by legal intendment.” And such is the settled doctrine of that court, where the question is raised directly on appeal or writ of error. With equal uniformity, that court has held, where the judgment has been questioned collaterally, that the jurisdiction of the court would be presumed in the absence of all averment of the facts which show the jurisdiction. In the case of McCormick v. Sullivant, 10 Wheat. 192, a decree of the Circuit Court of the United States was pleaded in bar to another suit, to which a replication was filed, showing that the proceedings in that suit did not show the necessary facts to give the Circuit Court jurisdiction, and that consequently the suit was coram non judice, and the decree void. In deciding the question thus directly raised, the court said: “ But this reason proceeds upon an incorrect view of the character and jurisdiction of the inferior courts of the United States. They are all of limited jurisdiction ; but they are not on that account inferior courts in the technical sense of those words, whose judgments, taken alone, are to be disregarded. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may, upon a writ of error or appeal, be reversed fpr that cause. But they are not absolute nullities. This opinion was strongly intimated, if not decided, by this court, in the case of Kemp’s Lessee v. Kennedy, 5 Cranch, 185, and was afterwards confirmed by the decision made in the case of Skillen’s Executors v. May’s Executors, 6 Cranch, 267.” This has ever since been the settled doctrine of that court. If we have followed the decisions of that court, in holding judgments erroneous for the want of the averments in the declarations of the jurisdictional facts, the decisions of that same court are certainly sufficient authority for holding that the absence of such averments will not render the judgments void, when presented collaterally. Doubting, as I ever have, the propriety of going with that court so far as even to hold such judgments erroneous, I am surely justified in not extending the doctrine beyond the decisions of that court. They have held such judgments obligatory, though erroneous. On their authority we have held them erroneous, and on the same authority we may well refuse to treat them as void.

Upon an examination of the cases cited at the bar, it will be found that the decisions in the various States of the Union and in England are contradictory, and quite inconsistent with each other upon analogous questions; and should I review the whole, I should still find myself at liberty to follow the authority upon which I rely, and which is the only class of decisions directly in point. Being thus fortified in the conclusion to which I have arrived, without touching the numerous decisions of this court, none of which have been made where the judgr ment has been drawn in question collaterally, as in this case, I do not think it my duty to go out of my way to overrule those decisions. In them nothing but a question of practice was involved, which could have but a very limited influence upon the rights of parties. Here it becomes a rule of property, and as such presents entirely different considerations. As it is, I shall cheerfully acquiesce, in the future, in the determination to which the other members of this court have arrived, especially as by it we are brought back to what I believe should have been the rule originally adopted. This I think is demonstrated in the opinion of the majority of the court, by reasons which are unanswerable; and but for the repeated and uniform decisions of this court, in which we have all acquiesced and participated, and which I think have thus become obligatory upon the court as a rule of interpretation, I should most cheerfully concur. As it is, I concur in the decision which is made, but for different reasons, relying upon authority which to me is satisfactory.


source: Caselaw Access Project

author: Trumbull, J.

license: Public Domain

text:
    James M. Pottle, for the use of Christopher S. Luce, Plaintiff in Error, v. Solomon McWorter.
    ERROR TO PIKE.
    Where a bill of exceptions contains all the evidence in the ease, which is insufficient to warrant the finding of the jury, yet if no exception was taken to the decision of the court, overruling the motion for a new trial, at the time it was announced, that decision cannot be assigned for error.
    It is not competent to impeach an award, in an action at law, by proof that the arbitrators have erred in judgment or committed mistakes.
    The facts of this case are stated in the opinion of the court, The cause was heard before Minshall, J., and a jury, at the March term, 1851, of the Pike Circuit Court. Verdict and judgment for the defendant. Plaintiff below sued out this writ of error.
    R. S. Blackwell, for plaintiff in error.
    Browning & Bushnell, for defendant in error.
   Trumbull, J.

This was an action of assumpsit upon a promissory note. The defendant pleaded,

1. Non assumpsit.

2. That the parties had been partners; that a dispute arose about their partnership matters and accounts, which was referred to arbitrators; that the arbitrators awarded that the defendant should pay the plaintiff $392.91, and that he execute three promissory notes for the same, in equal amounts, payable in three, six, and nine months; that the defendant discovered that the arbitrators, in mailing their award, had made a mistake in the computation of figures to the amount of $400, and pointed the same out to the arbitrators; that said arbitrators and the plaintiff then agreed that if defendant would execute his notes, the arbitrators would meet again and examine and correct said mistake; that the defendant, relying upon said agreement, executed the notes; that the arbitrators afterwards met, and one of them was satisfied of the mistake in the computation, and desired to correct the same, but that the other refused to act, and no correction took place; that the note declared upon is one of the three before mentioned; that it was given under the foregoing circumstances, and that the consideration therefor has wholly failed.

3. That the parties had been partners, and in settling their partnership affairs a mistake took place in the computation of their accounts, whereby it was made to appear, that the defendant was indebted to the plaintiff, when in fact the defendant was not so indebted, and it would not have so appeared had not a mistake occurred in the computation of the partnership accounts; that the note sued upon was executed for part of the sum so erroneously found to be due from the defendant to the plaintiff, and for no other consideration, and that by means of the premises the consideration had wholly failed.

4. That the note was given without any consideration.

Issues were made upon all the pleas, and a jury trial had, which resulted in a verdict for the defendant. The plaintiff moved for a new trial, which was denied. The bill of exceptions contains all the evidence in the case, and it is wholly insufficient to warrant the finding of the jury; but as no exception was taken to the decision of the court overruling the motion for a new trial at the time it was announced, that decision cannot be assigned for error.

The record shows that portions of the evidence offered by the defendant to support the issues on his part, were objected to by the plaintiff, the objections overruled, and exceptions taken, in proper time, to the decisions of the court admitting the same. Some of the evidence thus admitted was clearly improper, and did not tend to prove either of the issues in the case ; and it is impossible to account for the finding of the jury, except upon the supposition that they were influenced by this irrelevant testimony. One of defendant’s witnesses testified that he was present as a witness the first day of the arbitration, and “ that he had, at the request of the defendant, looked over the books and accounts, and believed there was a mistake of about three hundred dollars. He knew of no mistake in the computation of said arbitrators, but he believed that the arbitrators awarded that amount too much, against the said defendant. That he did not know what evidence was heard by the arbitrators on the said, second day, or the grounds of then award.”

This evidence did not tend to show that the arbitrators had made a mistake in the computation of figures as alleged in the second plea, but that they had erred in judgment, and made an improper award. The propriety of their judgment was not, however, a question before the jury, and all evidence tending to impeach their award for an error in judgment was improperly received. It is not competent to impeach an award, in an action at law, by proof that the arbitrators have erred in j ndgment or committed mistakes; and if it were, there was no issue in this case to justify the admission of such evidence, unless upon the point that they had made a mistake in the computation of figures. The jury must have regarded the testimony of this witness as proving that the award was, not by a mistake in the computation of figures but in other respects erroneous, and that therefore the notes given by the defendant for the amount found to be due by the arbitrators were without consideration ; but there was no such issue before the jury, nor could such an issue have been properly made, and the plaintiff’s objection to the testimony offered to prove such a state of facts was therefore improperly overruled.

Judgment reversed, and cause remanded.

Judgment reversed.


text:
    John H. Harris, Appellant, v. Joseph L. Shaw et al., Appellees.
    APPEAL PROM TAZEWELL.
    If a party, by a deed absolute in its terms, conveys premises, with covenants of warranty, to commissioners and their successors in office, for the use of a county forever, in consideration of one dollar, and that the county seat had been located on the said premises, he cannot recover them back if the legislature shall subsequently change the county seat to another part of the county.
    Had the land been granted upon condition that it should be used for a particular purpose, it might revert to the donor when it should cease to be thus used.
    This was an action of ejectment, brought by the plaintiff in error against the defendants in error, in the Circuit Court of Tazewell county, for the recovery of “ that part of the addition made by the county of Tazewell to the town of Tremont, in said county, known as the public square, together with the buildings thereon,” and being part of the north-west quarter of section 19, township 24, north range 3 west of third principal meridian.
    The declaration is in the usual form, and contains two counts. The first describing the premises as above. The second describing the premises by metes and bounds.
    At the April term, A. D. 1851, the defendants pleaded the general issue in the usual formato which the “ similiter” was added by plaintiff. The case was, by consent, tried by the court, upon the following agreement of the facts of the case.
    That prior, and up to, the 1st day of December, A. D. 1835, the plaintiff was the owner in fee of the premises in the declaration described, and also of the whole of west half of the northwest quarter of section 19, in township 24, north of range 3 west of the third principal meridian, which eighteen-acre tract embraces the land in controversy in this suit. That on the day last aforesaid, the plaintiff, together with his wife, conveyed said premises in said declarations described to the county of Tazewell by deed, in the words and figures following, to wit:
    John H. Harris, to Thomas F. Railsbaek et al. Deed recorded December 12th, 1851.
    This indenture, made the first day of December, in the year of our Lord one thousand eight hundred and thirty-five, between John H. Harris and Catharine his wife of the one part, and Thomas F. Railsback, Thomas Fletcher, and Richard N. Cullom, Esquires, county commissioners for Tazewell county, or their successors in office, whatever name they may be called, of the second part, (all the parties to these presents being of the county of Tazewell, and State of Illinois,) witnesseth, that whereas the honorable the Legislature of the State of Illinois, did, in an act passed at its last session, appoint commissioners to locate the said seat of justice on the land of any person or persons, who might be the owners thereof, provided such person or persons, being the proprietors thereof, shall donate and convey, with covenants of general warranty, to the county commissioners of said county, for the sole use and benefit of the said county of Tazewell, a quantity of land not less than twenty acres.
    Now, in consideration of the location of the said seat of justice having been made upon the premises hereinafter described, and also, for and in consideration of the sum of one dollar to me in hand paid, by the said county commissioners of Tazewell county, the receipt whereof is hereby acknowledged, I have given, granted, aliened, enfeoffed, and confirmed, and by these presents do give, grant, aliene, enfeoff, and confirm unto the said county commissioners for Tazewell county, and to their successors in office, by whatever name they may be called, twenty acres of land, situate, lying, and being in the north-west quarter of section number nineteen, town twenty-four north, and range three west, which twenty acres of land is more particularly described as follows, to wit:
    Commencing at a post two hundred feet south of the south line of Tremont, and centre of James street, and running from thence east twenty poles, thence south eighteen poles, thence west forty poles, thence north eighty poles, thence east twenty poles to the place of beginning, to have and hold the same, and all and singular the premises above mentioned, and every part and parcel thereof, with the appurtenances, unto the said county commissioners for Tazewell, or their successors in office, and to the only proper use and behoof of the said county of Tazewell forever. And the said John H. Harris, for himself and his heirs, forever will warrant and defend the above-described premises, and every part thereof from the claim of him, the said John -H. Harris or his heirs, against the claim or claims of all and every other person or persons whatever.
    In witness whereof we have hereunto set our hands and seals, the day and year first above written.'
    John H. Harris, [l. s.] Catharine H. Harris, [l. s.]

      Benjamin Briggs, Tazewell County, ss. Theodore Harris, Tazewell County, ss.
    On the fifth day of December, 1835, before me, Benjamin Briggs, one of the justices of the peace in and for the said county, came the above-named John H. Harris and Catharine his wife, both personally known to me to be the same whose names are signed to the above indenture, and acknowledged the same to be their free act and deed, for the purposes therein expressed, and desired that the same might be recorded as such, the said Catharine being of full age, and by me duly examined separate and apart from her said husband, and the contents hereof being first made known to her, declared that she did reluctantly sign, seal, and deliver the foregoing deed of bargain and sale, and does hereby make a voluntary relinquishment of her right of dower, to and in the foregoing-described premises or any part or parcel thereof; and that the same has been done without any fear, threat, or compulsion of her said husband.
    In testimony whereof I have hereunto set my hand and seal the day and year first above written.
    Benjamin Briggs,

      Justice of the Peace for Tazewell County.

    That the act of the General Assembly, referred to in said deed, shall be considered as in evidence in this cause ; that after said conveyance to said county, said county erected a court-house on the public square mentioned in the declaration, and used and occupied it as a seat of justice until the 20th day of July, A. D. 1850. During which time said Harris caused a large portion of said eighty acres to be laid out into town lots, and sold many of said lots to divers persons, and received pay for the same; that on the 2d day of February, A. D. 1849, the General Assembly of the State of Illinois passed an act entitled An act to provide for the location of the county seat of Tazewell, and the erection of public buildings,” which act at full length is to be considered as in evidence in this cause ; that in pursuance of said last mentioned act, an election was held at Tremont, and by which election it was decided to remove the county seat of Tazewell from Tremont to the town of Pekin; that in pursuance of said decision and the law last aforesaid, a court-house was erected in Pekin, by the citizens thereof, and vicinity, and the seat of justice of said county, was in fact transferred from the old court-house on the premises in the said declaration described, to said new court-house in Pekin, on the 20th day of July, A. D. 1850, where it has ever since remained as a permanent location ; that for the purpose of conveying the said premises according to the 7th section of the act last aforesaid, the County Court of Tazewell county, and the county of Tazewell, by Benjamin F. James, a county commissioner, commissioned by the supervisors of said county, duly appointed, on the 21st day of August, A. D. 1850, made and procured to be made, deeds in the words and figures following, to -wit:
    This indenture, made and entered into this, the twenty-first day of August, in the year of our Lord one thousand eight hundred and fifty, between Benjamin F. James, Joseph Stewart, and Lawson Holland, judges of the County Court of-Tazewell ' county, and State of Illinois, of the one part,-and Joseph.L. Shaw, Wells Anderson, Lyman Porter, Thomas P. Rogers, and William S. Mans, of the county of Tazewell, and State of Illinois, of the other part, witnesseth, that whereas, on the second day of February, in the year of our Lord one thousand eight hundred and forty-nine, a law was enacted by the people of the State of Illinois, represented in General Assembly, for the re-location of the county seat of Tazewell" county, and the erection of public buildings, which act, among other things, provided, if said seat of justice should be removed to Pekin, the County Court of Tazewell county was authorized and empowered, and made the duty of said court, to convey by deeds of trust, to Joseph L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, the courthouse in Tremont, for the use of the inhabitants of the county of Tazewell, to be used and occupied exclusively for the purpose of education; and whereas, also, the said seat of justice having been removed to Pekin, according to the tenor and effect of said law, now, therefore, the said Benjamin F. James, Joseph Stewart, and Lawson Holland, judges of the County Court as aforesaid, and by virtue of their authority, and in consideration of the premises and one dollar to them in hand paid, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell, and convey, unto Joseph L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, and their successors in office, forever, all that certain tract of land on which the court-house is situated, in the county addition to the town of Tremont, together with all and singular the said courthouse, the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to have and to hold, to receive and take the same to the said Joseph L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, and their successors in office, to the proper use and behoof of the said Joseph L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, forever, in trust, however, and to the interest and purpose that the said Joseph L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans shall hold the court-house aforesaid for the use of the inhabitants of the county of Tazewell, for ,the purposes of education.
    In testimony whereof, we, Benjamin F. James, Joseph Stewart, and Lawson Holland, judges of the County Court aforesaid, have hereunto set our hands' and seals, this the twenty-first day of August, in the year of our Lord one thousand eight hundred and forty.
    Benjamin F. James, [l. s.] Lawson Holland, [l. s.] Joseph Stewaet, [l. s.J

      State of Illinois, Tazewell County, ss.
    I, William B. Parker, notary-public, in and for the county aforesaid, do hereby certify, that Benjamin F. James, Joseph Stewart, and Lawson Holland, whose names appear as having executed the same, this day personally appeared and acknowledged (they all being personally known to me) that they had signed, sealed, and delivered the same for the uses and purposes therein expressed.
    Given under my hand and seal of office, this the 21st day of August, in the year of our Lord, one thousand eight hundred and fifty.
    William B. Parker, Notary-Public, [l. s.]
    This indenture, made and entered into this the twenty-first day of August, in the year of our Lord one thousand eight hundred and fifty, between Benjamin F. James, of the county of Tazewell, and State of Rlinois, a special commissioner appointed at the August special session of the Board of Supervisors of the county of Tazewell, and State of Illinois, of the one part, and Joseph L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, of the county and State aforesaid, of the other part, witnesseth, that, whereas, on the second day of February, in the year of our Lord one thousand eight hundred and forty-nine, a law was enacted by the people of the State of Illinois, represented in the General Assembly, for the re-location of the county seat of Tazewell county, and the creation of public buildings ; which act, among other things provided, if said seat of justice should be removed to Pekin, the County Court of Tazewell county was authorized and empowered, and made the duty of said court to convey by deeds of trust to Joseph L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, the court-house in Tremont, for the use of the inhabitants of the county of Tazewell, to be used and occupied exclusively for th e purposes of education; and whereas, also, the said seat of justice having been removed to Pekin, according to the tenor and effect of said law; now therefore the said Benjamin F. James, commissioner as aforesaid, and by virtue of said authority, and in consideration of the premises, and the sum of one dollar, to him in hand paid, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell, and donate and convey unto Joseph L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, and their successors in office forever, all that certain tract of land on which the court-house is situated, in the county addition to the town of Trernont, together with all and singular the said courthouse, hereditaments, and .appurtenances thereunto belonging, or in' any wise.appertaining, to have and to.hold, to receive and to take the same to the said'Joseph L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, and their successors.™ office, to the forever use . and behoof. of the said Joseph "L. Shaw, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, and their successors in office forever; in trust, however, and to the interest and purpose that the said Joseph L. Shaw, Wells. Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans, shall hold the court-house aforesaid, for the use of the inhabitants of the county of Tazewell, for the purpose of education'.
    In testimony whereof I, Benjamin F. James, commissioner as aforesaid, have hereunto set my hand and seal, this twenty-first day of August, in the year of our Lord- one thousand eight hundred and fifty.1 Benjamin F. James, Corner.

      State of Illinois, Tazewell County, ss. .
    I, William B. Parker, a notary public in arid for the county aforesaid, do hereby certify, that on this day personally appeared before me Benjamin F. James, whose name appears subscribed to the foregoing deed of conveyance, as having executed the same," and who I personally know to be the real person who and in whose name the acknowledgment is proposed to be made, and acknowledged the execution thereof as his act and deed, for the uses and purposes therein expressed.
    Given under my hand and seal of office, this the twenty-first day of August, in the year of our Lord one thousand eight hundred and fifty.
    William B. Parker, Notary-Public, [l. s.]
    That the persons in fact executing said deeds had at the time of executing them all the authority to do so that the county might or could confer; that in pursuance and by the authority of said deeds, and the law last aforesaid, the defendants took possession of the premises described in the first count of the declaration, which possession they held at the time of the commencement of this suit, and still hold.
    On the foregoing state of facts the court is to render judgment, and the unsuccessful party is to be considered as having duly excepted to said judgment, and to be allowed to appeal without bond to the Supreme Court sitting at Springfield; and it is further agreed, that the clerk in making up a transcript of the record to send to the Supreme Court, shall only insert therein the declaration, the plea and joinder, this agreement, with the deeds in' their proper places, and the judgment of the court in the cause.
    And now afterwards, to wit, on the eighth day of said term of said Circuit Court last aforesaid, being the 18th day of said month of September, the following proceedings were had in the cause: ■—

      John H. Harris v. Joseph L. Shaiu, Wells Andrews, Lyman Porter, Thomas P. Rogers, and William S. Mans.'

    This cause having been submitted to the court for trial upon the within agreement of the parties, and the court being now fully advised in the premises, doth find the defendants not guilty of unlawfully withholding the possession of the premises in the plaintiff’s declaration mentioned; wherefore, it is considered and adjudged by the court, that the said defendants have and recover of the said plaintiff their costs and charges by them in this suit expended, and that execution issue therefor.
    Wherefore, the plaintiff prays an appeal to the Supreme Court, which is allowed according to the agreement filed in this cause; The error assigned is,
    The court erred in finding for the defendants and giving judgment in their favor, and in not finding for the plaintiff and giving judgment in his favor for the recovery of the premises. f
    S. T. Logan, A. Lincoln, and Stuart & Edwards, for appellant.
    N. H. Purple, for appellees.
   Trumbull, J.

The deed from Harris to the county commissioners of Tazewell county is absolute in its terms, and conveys the premises in question, with covenants of warranty, to them and their successors in office, for the use of said county forever. It purports to have been made in consideration of the county seat, having been located upon the premises, and of one dollar, the real consideration no doubt being the location of the county seat upon an eighty-acre tract of land, of which Harris was the owner. The legislature, by the act of February 12,1835, appointed commissioners permanently to locate the seat of justice of Tazewell county, with authority to locate the same on private property, upon condition that the proprietor thereof should donate and convey to the county commissioners of said county, for the use thereof, a quantity of land not less than twenty acres, upon which to erect the public buildings, with covenants of general warranty; otherwise the location was to be made upon public land in said county. When Harris made this conveyance, he did so under this law. He accepted the proposition made to him by the commissioners under the law, believing, no doubt, that he would be amply compensated for the twenty acres by the increased value which the location of the county seat would give to the balance of the eighty-acre tract which he still owned, and he seems not to have been disappointed in his expectations; for the record shows that he subsequently laid out a large portion of the tract into town lots, many of which he sold and received the money for. He now seeks to recover back the twenty acres, upon the ground that the county seat, after remaining for fifteen years, as located in 1835, was in 1850 removed to the town of Pekin, under an act of the legislature, passed February 2, 1849. It was no part of the contract made between Harris and the county in 1835, that the county seat should forever remain as then located; on the contrary he must have known, when he made the deed, that the legislature at that time possessed the power to change the location of county seats at pleasure. He must, therefore, be considered in legal contemplation as having made the deed in view of the liability, at least, of a change of the county seat at some future time.

Had the land been granted upon condition that it should be ( used for a particular purpose, it would unquestionably have reverted to the donor when it ceased to be thus used. But it was competent for the legislature to make it a condition precedent to the location of the county seat upon the land of any individual, that he should convey twenty acres of the tract in fee-simple absolute to the county. The owner was .not obliged to accept such a proposition, but having done so, and made his deed accordingly, he cannot complain when the legislature, to promote the public good, and in the exercise of an undoubted right, subsequently provide for a change of the county seat.

The record shows that the twenty acres have not been converted to private purposes, but the court-house, in accordance with a provision contained in the act under which the county seat was changed, has been conveyed to trustees for the use of the inhabitants of the county of Tazewell, to be used and occupied exclusively for the purpose of education, and it may be questionable whether the plaintiff may not derive as great a benefit from the new use to which it has been appropriated, as if it had continued to be used as a court-house; but be that as it may, the case comes directly within the decision of this court in the case of Adams v. The County of Logan, 11 Illinois, 336, and the judgment must be affirmed.

Judgment affirmed.


author: Treat, C. J.

text:
    Charles Benjamin, Plaintiff in Error, v. Joab Stremple, Defendant in Error.
    ERROR TO PIKE.
    Although, by the common law, one tenant in common of a chattel cannot maintain trover against a co-tenant, although the latter obtains possession of the article, and excludes the former from all participation in its use, our statute has so far modified this rule as to allow one tenant in common to maintain trover against a co-tenant who assumes exclusive control over the property.
    In an action of trover by the bailee of a chattel, or one having a special property therein, against the real owner, the plaintiff can recover his special property only; but if the action is against a stranger, he is entitled to recover the full value of the article, and he holds the balance beyond his special interest, in trust for the general owner, to whom he is responsible.

      The members of a voluntary association being strictly tenants in common of the effects owned by the association, each having an equal interest therein, deposited the same with a person for safe keeping, and he became responsible as a bailee; this gave him such an interest in the effects as would authorize him to maintain trover against a stranger and recover their full value, for the benefit of the owners. But as against a part-owner, he can only recover the interests which belong to the others, and the value of the interest of the party sued should be excluded in the assessment of damages.
    This action was commenced by Stremple before a justice of the peace in Pike county, and taken by appeal to the Circuit Court. The bill of exceptions taken at the trial of the cause in the Circuit Court, shows, that a son of Benjamin, under pretence of desiring to borrow some nails, entered the workshop of one Craig, from whence he to ole a chest which contained the regalia of the New Salem Division, No. 304, of the Sons of Temperance; and that said Charles Benjamin and his son, the said Stremple, and eighteen others, were members of said division ; that said chest was kept in the shop of Craig, where the division met, but that Stremple kept the key; that Benjamin told his son to take away the chest, because the division owed him and he had taken that course to get his money. The regalia of the division was worth forty dollars. That under the rules and regulations of said division, the said chest and its contents, consisting of the regalia of said division, were placed in the charge and possession of an officer of said division called a conductor, which office Stremple held at the time the chest was taken and at the time of the institution of the suit; that the division held Stremple responsible for the safe keeping and delivery of the said property at the expiration of his term of office.
    The cause was heard before Minshall, Judge, and a jury, at October term, 1851, of the Pike Circuit Court, and resulted in a verdict and judgment in favor of Stremple for the sum of $¡40 and costs. Benjamin brought the cause to this court by writ of error.
    D. A. Smith, for plaintiff in error.
    M. Hay and G. Edmonds, for defendant in error.
   Treat, C. J.

The facts of this case admit of no dispute. Twenty-one persons were members of a voluntary society established for their mutual benefit. They were without corporate existence, and held some property in common. It was placed in the hands of the plaintiff, one of the members, who was responsible for its safe keeping. It was taken from his possession by the defendant, also a member, and converted to his own use. . The plaintiff then brought an action of trover, and recovered the entire value of the property.

The law of the case is equally plain. By the common law, one tenant in common of a chattel cannot maintain trover against a co-tenant, although the latter obtains possession of the article, and excludes the former from all participation in its use. The reason is, that the possession of one is regarded as the possession of both. But if one tenant destroys the chattel, or does any equivalent act, his co-tenant may bring trover and recover the value of his share. Brown v. Hedges, 1 Salk. 290; Heath v. Hubbard, 4 East, 110; Fennings v. Grenville, 1 Taunt. 241. Our statute has' so far modified the common-law rule as to allow one tenant in common to support trover against a co-tenant who assumes exclusive control over the joint property. Rev. Stat. ch. 56, § 2. In an action of trover by the bailee of a chattel, or one having a special property therein, against the real owner, the plaintiff can recover the value of his special property only; but if the action is against a stranger, he is entitled to recover the full value of the article, and he holds the balance beyond his special interest in trust for the general owner, to whom he is responsible over. Lyle v. Bartlett, 5 Binn. 457; Ingersoll v. Van Bokkelin, 7 Cowen, 670; Spoor v. Holland, 8 Wend. 445; White v. Webb, 15 Conn. 302; Chamberlain v. Shaw, 18 Pick. 278; Liroville v. Black, 5 Dana, 176; Strong v. Strong, 6 Alab. 345.

In this case, the members of the association were strictly tenants in common of the property, each having an equal interest therein. They deposited the. same with the plaintiff for safe keeping, and he became responsible to them as a bailee. This gave him such an interest in the property as would authorize him to maintain trover against a stranger, and recover its full value for the benefit of the owners. In such case, he would represent the entire interest in the property. But this action is against a part-owner, and he is not entitled to recover the value of his share. He only represents the interests of the other tenants in common, and he can only recover to the extent of their interests in the property. The value of the defendant’s share should be excluded in the assessment of damages. It would be a great absurdity to permit the plaintiff to recover the whole value of the property, when he would hold a portion of the amount recovered as so much money had and received to the use of the defendant. To avoid circuity of action, the law allows the value of the defendant’s share to go in mitigation of damages. Upon the evidence, the plaintiff was clearly entitled to recover the full value of the property, after deducting the value of the defendant’s interest therein. But the court charged the jury, that they might find for the plaintiff the entire value, and they acted upon the instruction. The damages were therefore excessive; and the judgment must be reversed, and the cause remanded.

Judgment reversed.