author: Mr. Justice Craig

text:
    Charles W. Boynton v. Plowden H. Ball.

      Filed at Ottawa March 28, 1883.

    1. Bankruptcy—stay of suit until discharge. An.alleged bankrupt, under the act of 1867, might, on application, have procured a stay of any suit pending against him, to await the determination of the proceeding in bankruptcy, and on obtaining his discharge he might have pleaded the same in bar of the action. If he should fail to avail of this remedy, and suffer judgment to go against him pending the proceedings in bankruptcy, he will not be discharged from the same by subsequently obtaining his discharge in bankruptcy.
    2. Same—judgment after adjudication, becomes a new debt. A judgment obtained against one after he is adjudged a bankrupt, creates a new debt, which can not be proved in bankruptcy, because the judgment is a merger; and the creditor can not interpose to prevent the discharge, because he has no provable debt, and because the discharge will be no bar to his judgment.

      3. Same—staying judgment. Where a defendant, pending an action against him in the State court, makes his application in bankruptcy, and is adjudged a bankrupt in the United States District Court, after which, and before his discharge, he -voluntarily goes to trial in the State court, and judgment is therein rendered against him, he will not be entitled, after his discharge in bankruptcy, to have an order entered in the State court for a perpetual stay of proceedings under the judgment. By suffering such judgment to be rendered he waives his right to be discharged therefrom.
    4. Merger—in judgment or decree. Every cause of action, when a recovery is had thereon, is merged in the judgment or decree, which thereafter represents the rights of the parties.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.
    Messrs. Swett, Bates & Haskell, for the appellant:
    The revival of the decree against Boynton by putting it into a new judgment after his being adjudged a bankrupt, and before his discharge, was an unlawful act. U. S. Stat. secs. 5067, 5106, 5117, 5118, 5119.
    A motion to stay, perpetually, the execution issued upon the judgment unlawfully obtained, is, among others, a proper procedure. The summary remedy by motion has superseded the ancient writ of audita querela. Chambers & Garner v. Neal, 3 B. Mon. 257; Davis v. Shapley, 1 B. & A. 54; Barrow v. Poyle, id. 629; Humphrey v. Knight, 6 Bing. 572; Alcott v. Avery, 1 Barb. Ch. 347.
    The safest course for a bankrupt having a judgment ostensibly in force against him, is to take some affirmative action to secure the benefit of his discharge. Freeman on Enforcement of Judgments against Bankrupts, 37. See, also, Coburn v. Spence, 15 Ala. 549; Borden v. Jaco, 17 id. 344; Westenberger v. Wheaton, 8 Kan. 169; Murphy v. Smith, 22 La. Ann. 441.
    The rule of the English cases is uniform, and bears upon two branches of the case: First, that the relief sought may be obtained in a summary manner by motion or rule to show cause; and secondly, it shows' that the defendant having obtained a certificate of discharge, is relieved, not only from the debt which might have been proved, “but from all remedies for the recovery of such debt.” The following text writers and cases support the views above stated: Freeman on Judgments, 245; Coburn v. Spence, 15 Ala. 549; Borden v. Jaco, 17 id. 344; Westenberger v. Wheaton, 8 Kan. 169; Murphy v. Smith & Nicholson, 22 La. Ann. 441; Bump on Bankruptcy, (9th ed.) 285; Hamilton v. Wood, 34 N. J. L. 305; Lloyd v. Ford, 7 Halst. (N. J.) 151; Boteflour v. Coates, 1 Cowp. 25; Blandford v. Foot, id. 138; Scott v. Ambrose, 3 M. & S. 326; Willett v. Prindle, B. & P. 190; Dams v. Shapley, 1 B. & A. 54; Barrow v. Poyle, id. 629; Imlay v. Carpenter, 14 Cal. 173; In re Brown, 3 N. B. 585; In re Vickory, id. 637; In re Crawford, id. 171; In re Stephens, 4 id. 369; In re Rosey, 8 id. 509; Bump on Bankruptcy, 10th ed.) 82; McDowgold v. Reid, 5 Ala. 810; McDonald v. Ingraham, 30 Miss. 394; Downer v. Rowell, 26 Vt. 400; Rogers v. Western Marine and Fire Ins. Co. 1 La. Ann. 160; Moore v. Upton, 5 N. Y. 596; Johnson v. Fitzhugh, 3 Barb. Ch. 372; Mechanics’ Banking Association v. Lawrence, 1 Sandf. 659; Shurtliff v. Thompson, 63 Maine, 118; Cornell v. Dakin, 38 N. Y. 253; Mizell v. Moore, 7 Ired. (N. C.) 255; Matter of Allen, 5 Law Rep. 362; Goodall v. Bachelder, 17 N. H. 386; Bump on Bankruptcy, (6th ed.) 411; Blake v. Bigelow, 5 Ga. 437; Turner v. Gatwood, 8 B. Mon. (Ky.) 613; Curtis v. Slosson, 6 Pa. St. 265; Wood v. Tunstall, 2 Bax. (Tenn.) 319; Dick v. Powell, 2 Swan, 632; Peatross v. McLaughlin, 6 Gratt. 64.
    Mr. J. A. Chain, for the appellee:
    The neglect of Boynton, after he had gone into bankruptcy, to apply for a stay of proceedings, and resting his defence on other grounds, whereby he allowed judgment to be entered against him-, 'constitutes such laches on his part that he can not now -be- heard:- to- set: up his discharge against .the: judgment. • - ; ." ..-'i : - . "
    The original cause -of action was merged in the judgment pending the proceedings in bankruptcy, and no. longer exists. The judgment now constitutes the debt, and having no exist-’ ence at the time of the adjudication in bankruptcy, is not provable against the bankrupt’s estate. Holbrook v. Foss, 27 Maine, 441; Pike v. McDonald, 32 id. 418; Sampson v. Clark, 2 Cush. 173; Kellogg v. Schuyler, 2 Denio, 73; Faxon v. Baxter, 11 Cush. 35; Carrington v. Halibird, 17 Conn. 580; In re Gallison, 2 Lowell, C. C. 74; Fisher v. Foss, 30 Maine, 459; Woodbury v. Perkins, 5 Cush. 86; Walcott v. Hodge, 15 Gray, 547; Ellis v. Horn, 28 Maine, 385; Uran v. Houdlette, 36 id. 15; Ewing v. Peck & Clark, 17 Ala. 341; Medbury v. Swan, 46 N. Y. 203; Monroe v. Upton, 50 id. 594.
    An adjudication in bankruptcy does not divest the State court of its jurisdiction of a pending suit. The bankrupt may have the proceedings stayed until his discharge is granted, when he may plead the same. If he does not, and allows judgment to go against him, the judgment will bind him, notwithstanding his discharge thereafter. Steadman v. Lee, 61 Ga. 59; Everts v. Hyde, 51 Vt. 102; Hersey v. Jones, 128 Mass. 472; Miller v. Clements, 54 Texas, 351; 49 id. 16; 42 id. 1; Bradford v. Rice, 102 Mass. 473; Sampson v. Clark, 2 Cush. 173; Woodbury v. Perkins, 5 id. 86; Holden v. Sherwood, 94 Ill. 92; In re Mansfield, 6 Bank. Reg. 303.
   Mr. Justice Craig

delivered the opinion of the Court:

Plowden H. Ball brought an action of debt against Charles W. Boynton, at the September term, 1877, of the circuit court of Stephenson county, to recover the amount of a decree which had been rendered in the circuit court of that county several years prior to the commencement- of the action. At the following April term, 1878, of the court, .the defendant, by his attorney, filed a plea of the general issue. On the 15th day of April, 1878, Boynton was adjudged a bankrupt in the United States District Court for the Northern District of Illinois. At the December term, 1879, of the court, the cause was called for trial, and the parties appeared by thefr attorneys, waived a jury, and a trial was had before the court, which resulted in a judgment in favor of the plaintiff for the amount of the decree, together with the interest thereon. After the rendition of the judgment,. and on the 23d day of December, 1880, Boynton received his final discharge in bankruptcy, - and on the 25th day of March, 1881, he filed this petition and motion in the Stephenson circuit court for a perpetual stay of proceedings on the judgment, on the ground that' he had received his discharge ■ in- bankruptcy. The motion was heard by the court, and overruled. An appeal was taken to the Appellate Court, where the-'judgment of the circuit court- was affirmed, and - Boynton appealed to this court.

Whether a perpetual stay of proceedings to enforce the collection of the judgment against the bankrupt, shall be granted, depends upon the construction to be placed upon the Bankrupt act of 1867. Section 5106 declares: “No creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law or. equity therefor, against the bankrupt, until the question of the debtor’s discharge shall have been determined; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed to await the determination of the court of bankruptcy on the question of the discharge: Provided, there is no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge: And provided, also, that if the amount due the creditor is in dispute, the suit, by leave of the court in bankruptcy, may proceed to judgment, for the purpose of ascertaining the amount due, which amount may be proved in bankruptcy, but execution shall be stayed.” Section 5117 provides that no debt created by fraud or embezzlemént of the bankrupt, or by his defalcation as a public officer or while acting in a fiduciary character, shall be discharged. Section 5118 declares that no discharge shall release or affect any person liable for the same debt for or with the bankrupt. Section 5119 provides that “a discharge in bankruptcy, duly granted, shall, subject to the limitations imposed by the two preceding sections, release the bankrupt from all debts, claims, liabilities and demands which were or might have been proved against his estate in bankruptcy. ”

It will be observed that Boynton, after he was'adjudged a bankrupt, did not appear in the- circuit court, where the action was pending against him, and enter a motion for a continuance of the cause, or a stay of proceedings, until the determination of the court of bankruptcy on his discharge, as he might have done under section 5106 of the Bankrupt act; and on account of a failure on the part of Boynton to procure such stay of proceedings, it is contended that the judgment rendered against him was not affected by his final discharge, subsequently obtained.

The question involved has led to much discussion among law writers, and although it has often arisen in the courts of England and the United States, the decisions are by no means harmonious. We have been referred to a large number of cases decided in England, where the courts hold that a judgment rendered against a bankrupt after he was declared a bankrupt, and before the final discharge was obtained, upon a preexisting debt, is released by the discharge. Among the number is Blandford v. Foot, 1 Cowp. 138, which is a leading case on the subject. We do not question the rule in England,—it is uniform; but the decisions in England can not be relied upon as authority here, for the reason they are predicated on a provision in the statute of that country which does not exist in our Bankrupt law. The substance of the statute is, that if the creditor did obtain judgment before final discharge, and take the debtor in execution, he should be discharged on motion. (See dissenting opinion of Bronson, Ch. J., in Clark v. Rowling, 3 N. Y. 225, and opinion of the court in In re Gallison, 2 Lowell, C. C. 74, where the statute of England is quoted and considered.) If our Bankrupt law contained the same provision as that of England, then the decisions of that court might be regarded as authority. But such is not the case. As stated before, in the United' States the decisions on the question are in direct conflict. Under the Bankrupt act of 1841, in Maine, Massachusetts, and some other States, it was held that a discharge in bankruptcy did not release a judgment rendered against the bankrupt pending the proceedings in bankruptcy; that where a judgment is recovered on a debt provable under the bankrupt proceedings against the bankrupt, the original debt becomes merged and extinguished in the judgment, which is not provable against the bankrupt. (Holbrook v. Foss, 27 Maine, 441; Fisher v. Foss, 30 id. 459; Pike v. McDonald, 32 id. 418; Sampson v. Clark, 2 Cush. 173; Woodbury v. Perkins, 5 id. 86; Faxon v. Baxter, 11 id. 35.) In New York, Vermont, and some other States, it has been held that if the debt upon which the judgment was rendered was one provable against the bankrupt, and would be cut off by the discharge, the judgment rendered upon such a debt would be barred and cut off by the discharge. Harrington v. McNaughton, 20 Vt. 293; Downer v. Rowell, 26 id. 397; Dresser v. Brooks, 3 Barb. 429; Church v. Rowling, 3 N. Y. 116.

We shall not, however, stop to determine what is the correct rule under the act of 1841, as there is, in our judgment, a marked distinction existing between the act of 1841 and the act of 1867. The act of 1841 made no provision whatever for the postponement of an action pending against a bankrupt between the time he was adjudged a bankrupt and the time he received a final discharge. This seeming defect in the act of 1841 was cured by the provision contained in section 5106 of the act of 1867, in these words: “Any such suit or proceeding shall, upon the application of the bankrupt, be stayed to await the determination of the court of bankruptcy. on the question of the discharge. ” Here is a complete remedy provided, if the bankrupt desires to avail of it, to prevent a judgment from being rendered against him until he can procure a final discharge. The object, of course, was to prevent a judgment which the discharge might not relieve the bankrupt from, as held by the courts of Maine and Massachusetts, until the discharge should be granted, which the bankrupt could then plead in bar of the pending action against him, and thus prevent the rendition of a judgment in the court in which the action might be pending.

Under section 5119, Boynton’s discharge relieved him of all debts which were or might have been proved against his estate in bankruptcy. Was the judgment in question a debt of that character ? Obviously, the section means all indebtedness existing at the time Boynton was declared a bankrupt, which was April 15, 1878. At this date the judgment was not in existence, as it was not rendered until December, 1879. But it is said the debt upon which the judgment was rendered was in existence at the time Boynton was adjudged a bankrupt, and as the original indebtedness was provable, and would have been barred by the discharge, the judgment stands in the same position. It may be regarded a well settled and uniform rule of law, that every cause of action will, if recovered upon, merge into the judgment or decreé. (Freeman on Judgments, sec. 216.) If the action is upon a simple contract, a bond, or a judgment of a court of r'ecord, in either case, when a recovery is had the cause of action is merged into the judgment, when a judgment has been rendered. Freeman, in his work on Judgments, sec. 217, says: “Every judgment is, for most purposes, to be regarded as a new debt,, the chief, and perhaps the only, exception being in cases where the technical operation of the doctrine of merger would produce manifest hardship,—and even these cases are by no means universally excepted. This new debt is not, in general, affected by the character of' the. old one. ” The author, in sec. 245, however, says: “In no class of cases has the technical operation of the doctrine of merger been so frequently limited as in those where the effect of a discharge under laws for the relief of insolvents had to be determined.”

An able discussion of this subject may be found in Gould v. Hogden, 63 Ind. 448, where a judgment had been rendered in a court of record in that State, and afterwards a recovery was had on the judgment in the State of Ohio. The question was, whether the first judgment was so merged and absorbed in the second judgment as to destroy the lien and validity of the first judgment. It is there said: “The plaintiff may enforce its collection by the process of the court in which he obtained his judgment, or he may, if he may elect so to do, use his judgment as an original cause of action, and bring suit thereon in the same or some other court of competent jurisdiction, and prosecute such suit to final judgment. This procedure he may pursue as often as he elects, using the judgment last obtained as. a cause of action on which to obtain the next succeeding judgment; but the very freedom with which this-may be done, ad infinitum,—and we know of no law or legal principle which would prevent its unending repetition,—is, to our' minds, a convincing and conclusive reason why each successive personal judgment ought to, and must, be regarded as a complete merger and extinguishment of the preceding, judgment, with all its qualities and incidents. Each successive personal judgment is a new ‘debt of record,’ in which the precedent debt, though theretofore evidenced by a judgment, is as completely merged and absorbed as it would have been if it had been evidenced by note, bill, bond, or any other evidence of debt. ”

In the case of In re Gallison, 2 Lowell, C. C. 74, Lowell, J., in discussing this question, after reviewing various authorities, says: “For the reasons given, and upon careful examination of the decisions, I am of opinion that a judgment obtained after the adjudication in bankruptcy, creates a new debt, which can not be proved in bankruptcy, because the judgment is a merger and creates a new debt, and that the judgment creditor can not oppose the discharge because he has no provable debt, and because the discharge will be no bar to the judgment. ”

There are cases which hold a contrary view. While the general doctrine of merger is admitted, it is held that the rendition of a judgment does not, within the meaning of the law, create a new debt. Such are Dresser v. Brooks, 3 Barb. 429; Dawson v. Hartsfield, 79 N. C. 334; In re Stephens, 4 N. B. 369; In re Brown, 3 id. 585. But we are satisfied the better doctrine, and that, too, established by the later decisions, is, that a judgment rendered after an adjudication in bankruptcy, creates a debt which can not be proved against the bankrupt’s estate,—that the indebtedness existing prior to the recovery becomes merged in the judgment.

If, however, we are not correct in this view, there is another ground which will preclude the bankrupt from impeaching the judgment, which has been clearly stated by the Supreme Court of Massachusetts in Bradford v. Rice, 102 Mass. 472. The court, after holding that a debt provable against the bankrupt, when reduced to judgment, pending the proceedings, is merged and extinguished, then says: “The creditor, by taking judgment, and so changing the form of his debt, and securing to himself the benefit of conclusive and permanent evidence of it, and an extension of the period of limitation of an action thereon, is held, on his part, to have elected to look to the debtor personally, and to abandon the right to prove against his estate; and the debtor, on the other hand, who might have protected himself by moving the court in which the action was pending for a continuance, in order to afford him an opportunity to obtain and plead a certificate of discharge, is held, by omitting to make such a motion before judgment, to have waived the- right to set up his certificate against the plaintiff’s claim,— and therefore the rights of both parties must be governed by the judgment which the one has moved for and the other has suffered to be rendered. ”

What right has Boynton to complain that a judgment was rendered against him in the Stephenson circuit court ? He was served with process, appeared, and pleaded to the action. He knew the action was pending when he was adjudged a bankrupt, and he knew that he could obtain a stay of proceedings, by entering a motion for that purpose, until he could obtain a discharge and plead it in bar of the action, and yet he made no effort whatever to procure a stay, but, on the other hand, voluntarily submitted to a trial. It was his own negligence which led to the judgment which he now seeks, by motion, to avoid. A motion for relief, as against a judgment of this character, may be treated as an equitable proceeding; and it is a well established rule that a party who fails to make a defence at law shall not be permitted to come into equity and have such defence allowed, unless he can show he was prevented by accident, mistake or fraud, which is not pretended in this case. (Twine, Admr. v. Osgood, 57 Ill. 345.) The circuit court did not lose jurisdiction of the case because Boynton was adjudged a bankrupt, but, as was held in Eyster v. Goff, 1 Otto, 521, it was the duty of the court to proceed with the cause, until, by some pleadings, the court was informed of the changed relations of the parties. (See, also, Holden v. Sherwood, 84 Ill. 92.) The circuit court could do nothing less than proceed with the case to final judgment, and as the judgment is to be regarded as the joint act of Boynton, who, of his own choice, allowed it to be rendered, and of the plaintiff, upon whose motion it was rendered, the rights of these two parties must be regarded as finally settled by that judgment. We are not aware of any case that holds that where a defence might have been made to a pending cause of action, but was not set up solely through the negligence of a defendant, such defendant may afterwards interpose the same defence to the judgment which has been rendered against him. It is ordinarily enough that a party has had a day in court, and an opportunity to plead his defence. The Bankrupt act in clear terms provides for the stay of an action which may be instituted against the bankrupt, until 'his discharge is passed upon. This statutory provision was incorporated into the law for the purpose of enabling a defendant, situated as was appellant, to plead his discharge in bar of the action; but as appellant gave no heed whatever to the law, and through his own negligence allowed a judgment to be rendered against him, what reason can be urged for holding that the judgment shall not be binding upon him? None is perceived.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Chief Justice Scott, and Mr. Justice Dickey: We do not concur in this opinion.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    William C. Buchanan v. Sophia Meisser.

      Filed at Mt. Vernon January 31, 1883.

    1. Stockholders—individual liability. The effect of a provision in the charter of a bank making its stockholders liable to creditors of the bank on its default, to an amount equal to the amount of stock held by them, is to withdraw from the stockholders, to the amount of their stock, the protection of the corporation, and leave them liable to that extent as partners.

      2. Same—right of stockholder to set off debt due him from the corporation, as against a creditor. In an action by a creditor of a corporation against a stockholder to enforce his individual liability to the amount of bis stock, he can not plead as a set-off an indebtedness of the corporation to himself, as such debt is not that of the party suing. Debts, to be set off at law, must be mutual, and between the same parties.
    3. Same—extinguishment of stockholder's individual liability. The recovery of a judgment by a creditor of a corporation against a stockholder for a sum equal to the amount of his stock, that being the limit of his liability for the corporation, will extinguish his liability. So, it is not doubted, will a voluntary payment by him to such a creditor of the corporation who has the right to sue him and recover judgment at law on his liability.

      Í. But a payment of a sum equal to his stock to the firm of which he is a member, in satisfaction of a debt due from the corporation to his firm, will not release him from his liability as a stockholder of such corporation, or bar a suit by another creditor, as the firm could not maintain an action at law against him.
    5. Same—contribution among stockholders, in equity. A stockholder of a bank who pays the amount of his individual liability to a firm in which he is a partner for a debt due such firm from the bank, thereby acquires an equitable right against his co-stockholders, recognizable and enforcible only in equity.
    6. Action—not by a firm against a partner. A partnership firm, as a creditor of a corporation, can not maintain an action at law against one of such firm to enforce his individual liability as a stockholder to the creditors of the corporation, since he can not be both a plaintiff and defendant.
    7. Partnership—one partner can not pay his own debt from partnership effects. One partner has no authority to apply partnership effects to the satisfaction or extinguishment of his own debt, without the express consent of his co-partners.
    Appeal from, the Appellate Court for the Fourth District; —heard in that court on appeal from the circuit court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    This was an action of debt, by Sophia Meisser, a creditor of the People’s Bank of Belleville, against William C. Buchanan, as stockholder in that bank.
    Among other things, it is alleged in the declaration that it is provided by the 9th section of the charter of that bank, that “whenever default shall be made in the payment of any debt or liability contracted by said corporation, the stockholders shall be held individually responsible for an amount equal to the amount of the stock held by them, respectively, and such liability shall continue until three months after an assignment of the stock, and publication of a notice thereof in a newspaper published at the * * * city of Belle-ville ; ” that the bank is indebted to the plaintiff for various specified amounts, for.money deposited; that when these debts were contracted the appellant owned thirteen shares of the capital stock of the bank, of the par value of $100 each, and that on April 22, 1878, the bank became insolvent, and made an assignment of all its effects, and any demand for the payment of the indebtedness to plaintiff would, therefore, have been unavailing. The general issue was pleaded by the defendant, and by agreement of parties the cause was tried by the court upon the following stipulation:
    “It is agreed that this cause may be tried by the court, a jury being waived, upon the following admitted state of facts: That all the material allegations of plaintiff’s declaration are true, and that when the People’s bank made the assignment it was indebted to Harrison & Co. in the sum of $4560, for money deposited in the bank by Harrison & Co. before that time; that Harrison & Co. was a partnership firm, consisting of defendant, Theophilus Harrison, Hugh Harrison, and Cyrus Thompson, and the firm was not a stockholder in the bank, although defendant and the two Harrisons were. Defendant, in order to cancel his double liability under the bank charter, and for that purpose, was, with his consent, charged by Harrison & Co., before this suit was commenced, the sum of $1300, and Harrison & Co. credited the bank’s indebtedness with a like amount. ”
    The court, in effect, excluded this defence, and thereupon gave judgment for the plaintiff for $1300, and costs, after overruling a motion for a new trial, to all of which defendant excepted. Defendant appealed from this judgment to the Appellate Court for the Fourth District, and that court affirmed the judgment of the circuit court. This appeal is from the last named judgment. The errors assigned bring before this court the question of whether, on the facts alleged and proved, plaintiff was entitled to judgment.
    Mr. Charles W. Thomas, for the appellant:
    The Appellate Court held in Meisser v. Thompson, 8 Bradw. 369, the statute was passed solely for the benefit of creditors who were not stockholders, and a stockholder can not discharge his liability by payment to a creditor who is also a stockholder; nor can one stockholder, who is a creditor, sue another at law to enforce his statutory liability; nor can a stockholder who is a creditor set off the debt due him from the bank in discharge of any portion of his liability,—citing in support thereof Bailey v. Bancker, 3 Hill, 188; Weber v. Frickey, 47 Md. 200; Beers v. Waterbury, 8 Bosw. 399; Thayer v. Union Tool Co. 4 Gray, 75; Richardson v. Abendroth, 43 Barb. 165. These cases do not sustain the ruling.
    The stockholder may discharge .his liability by payments to creditors of the corporation, and it is not material how that liability is discharged. (Jones v. Wiltberger, 42 Ga. 575.) And he may set off his judgment against the corporation, if fair and honest, against his individual liability to another creditor of the company. Boyd v Hall, 56 Ga. 563; Briggs v. Penniman, 8 Cow. 386.
    A stockholder who is also a creditor of a corporation will not be held liable, individually, to other creditors, if the aggregate of all the other stock liabilities is sufficient to pay the debts of the company. Bank of Poughkeepsie v. Ibbotson, 24 Wend. 73; Garrison v. Howe, 17 N. Y. 458.
    Mr. William C. Kueffner, for the appellee:
    This statutory liability of stockholders is for the protection of creditors of the corporation, and not the stockholders. They are left to such remedies as were previously provided for the adjustment of partnership transactions. To the extent of their stock they are liable as partners. Meisser v. Thompson, 9 Bradw. 369; Bailey v. Bancker, 2 Hill, 190; Fuller v. Ledden, 87 Ill. 313.
    A stockholder in a corporation having a claim against it for which the stockholders are individually liable, can not recover upon it in an action against one of the stockholders alone, but must set it up in a proper action against the stockholders generally, for contribution. (8 Bosw. 395; Bailey v. Bancker, 2 Hill, 190; Richardson v. Abendroth, 43 Barb. 165.) And the remedy is in equity. (Thayer v. Union Tool Co. 4 Gray, 80.) He may sue another stockholder if he has discharged his individual liability so that he can not be called on for contribution. Weber v. Frickey, 47 Md. 200.
    A stockholder may not discharge himself by paying the amount for which he is individually liable, to the corporation, nor can he, when sued by a creditor, set off a debt due him by the corporation. Thompson on Liability of Stockholders, secs. 381, 386, 387; Sawyer v. Hoag, 84 U. S. 623.
    The charter will be construed most strongly against the corporation. Mills et al. v. County of St. Clair, 2 Gilm. 198; Northwestern Fertilizing Co. v. Hyde Park, 70 Ill. 634.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The only question arising upon this record for our determination is, whether the circuit court properly excluded the defence sought to be interposed upon the trial.

The language of the 9th section of the charter of the People’s bank, under which suit was brought, provides, that “whenever default shall be made in the payment of any debt or liability contracted by said corporation, the stockholders shall be held individually responsible for an amount equal to the amount of the stock held by them, respectively. ” The effect of this is simply to withdraw from the stockholders, “to an amount equal to the amount of stock held by them, respectively,” the protection of the corporation, and leave them liable-as partners. Fuller v. Ledden, 87 Ill. 310; McCarthy v. Lavasche, 89 id. 270; Wincock v. Turpin, 96 id. 143; Corning v. McCullough, 1 Comst. 47; Wiles et al. v. Suydam, 64 N. Y. 176.

It is quite clear that to an action at law brought by a creditor of the corporation against a stockholder, under this section, the stockholder can not plead, as a set-off, an indebtedness of the corporation to himself, because such indebtedness is, in no sense, that of the party suing; and debts, to be set off at law, must be mutual, and between the same parties. Gregg v. James, Breese, (Beecher’s ed.) 143; Hinckley v. West, 4 Gilm. 136; Sawyer v. Hoag, 17 Wall. 610; Thompson on Liability of Stockholders, sec. 381, et seq.

Undoubtedly, the recovery of a judgment by a creditor of the corporation against a stockholder, for an amount equal to the amount of stock held by him, will extinguish his liability, for this is its limit; and since a person owes a duty to pay, where liability exists, as well without as with suit, we doubt not that a voluntary payment will equally extinguish his liability, in all cases where, otherwise, the creditor may sustain an action at law against him. But Harrison & Co. could maintain no action at law upon their claim without making appellant one of the parties plaintiff therein, and it is therefore impossible that such an action could have been maintained against him, since he could not be both plaintiff and defendant in the same suit at law, however nominal his interest theréin, either on the one side or the other, may have been. Dedman v. Williams, 1 Scam. 154; Bracken v. Kennedy, 3 id. 559; Chadsey v. Harrison, 11 Ill. 151; Dicey on Parties, 176, *156; Bailey v. Bancker, 3 Hill, (N. Y.) 188; Richardson v. Abendroth, 43 Barb. 165; Thayer v. Union Tool Co. 4 Gray, 80. The debt of the corporation to Harrison & Co., therefore, was one which, at law, appellee could not have been compelled to pay, and which he was not required to pay.

Whether the mere fact, per se, that a stockholder is a creditor of a corporation to an amount equal to the amount of stock held by him, at law extinguishes his liability to creditors of the corporation, it is unnecessary to now decide. No such case is before us. The indebtedness of the.corporation to the firm of Harrison & Co. was not an indebtedness to appellant, individually. Not only did this not extinguish any individual liability of his, even if .he had owed such to the corporation, but he had no authority to apply partnership effects to the extinguishment of his individual debts, without the express consent of his co-partners. Casey v. Carver, 42 Ill. 225; McNair v. Platt, 46 id. 211; Rainey v. Nance, 54 id. 29.

' All that there can be any reasonable ground for claiming that appellant acquired by the arrangement disclosed by t'he stipulation, is an equitable right against his co-stockholders for contribution, recognizable and enforcible in equity only. He thereby acquired no right which a court of law is competent to enforce or protect, and, consequently, which it will notice.

The judgment of the .Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    James Maulding, Sheriff, v. Thompson B. Steele.

      Filed at Mt. Vernon March 30, 1883.

    Purchases at sheriff’s sale—liability for loss on a resale—notice. To hold a purchaser of real estate at sheriff’s sale on execution liable for not completing the sale, and for the loss on a resale, he must have notice that a resale will be made and he held liable for any loss, so that he may protect his interest at the second sale as best he may. The rule is different in the case of a resale of personal property.

      Writ of Error to the Circuit Court of Hamilton county; the Hon. William C. Jones, Judge, presiding.
    Mr. James McCartney, Attorney General, and Mr. John C. Edwards, for the plaintiff in error:
    A sheriff, in making a sale of land under execution, has no power to guaranty or warrant the title, and the maxim of caveat emptor applies if no misrepresentations are made to induce oneto.bid. Lampkin v. Crawford, 8 Ala. 154; Morris et al. v. Robey, 73 Ill. 462; Rogers v. Smith, 2 Carter, 526.
    A purchaser at such sale purchases with notice of all defects in the title. Richardson et al. v. Wicker et al. 74 N. C. 878; Boggs v. Hargrave, 16 Cal. 564; Smith v. Painter, 2 S. & R. 225; Weidler v. Farmers' Bank, 11 id. 134; Dean v. Morris, 4 Green, (Iowa,) 312; Cameron v. Clark, 8 Iowa, 434; England v. Clark, 4 Scam. 486; Owings v. Thompson et al. 3 id. 502.
    No notice to the purchaser of the resale was necessary. As bearing on the point, see Ullman v. Kent et al. 60 Ill. 271; Matthews v. Clifton, 13 Miss. 330; Gaskell v. Morris, 7 Watts & Serg. 32; Gray v. Case, 51 Mo. 463.
    As to the general liability of a purchaser at a sheriff’s sale for the amount of his bid, or the loss upon resale, see Adams v. McMillan, Exr. 7 Porter, 88; Sexton v. Slade, 6 Ala. 204.
    The measure of damages is the difference between the purchase price and what the property brought on resale. 2 Addison on Contracts, p. 61, sec. 528; 2 Parsons on Contracts, 677; Saladin v. Mitchell, 45 Ill. 79; Ullman v. Kent et al. 60 id. 271; Sanborn v. Benedict, 78 id. 309; Railroad Co. v. Evans, 6 Gray, 25; Allen v. Plummer, 4 Greenlf. 258; Franchot v. Leach, 5 Cow. 506; Mowry v. Adams, 14 Mass. 327.
    Among the numerous cases holding" the purchaser at a sheriff’s sale liable for the amount of his bid, or the difference between his bid and the amount which the property brought upon a resale, the court is referred to the following cases: Harvey v. Fish, 9 Cal. 93; Wright’s Appeal, 25 Pa. St. 373; Spang v. Schneider, 10 id. 193; Lampkin v. Crawford, 8 Ala. 153; McKee v. Lineberger, 69 N. C. 217; Townshend v. Simon, 88 N. J. L. 239; Hand & Huddleson v. Grant, 5 S. & M. 508.
    Mr. William Hamill, and Mr. Thomas M. Eckley, for the defendant in error:
    Plaintiff in error contends that no court has ever held that the purchaser should be notified that a resale would be made at his risk and expense, in the absence of such a statutory provision. We understand the rule to be exactly the reverse. In Illinois,- North Carolina and Ohio there is no statute on the subject. In these States the courts have held that such notice was necessary to hold the bidder liable in chancery sales, and in the'two last States that such notice is necessary on execution sales. In the matter of Yates, 6 Jones’ Eq. 212; Harding v. Yarbrough, id. 214; Hill v. Hill, 58 Ill. 239; Grier v. Youtz, 5 Jones’ Law, 371; Galpin v. Lamb, 29 Ohio, 529.
    In the sale of personal goods, where the buyer refuses to take the goods, the seller may, on notice, resell the goods, and hold the buyer for the difference. Saladin v. Mitchell, 45 Ill. 79.
    The law is well settled that a purchaser at a sheriff’s sale of land to which the defendant had no title, may recover back the amount of his bid from any one who has it, except the plaintiff in the execution. Hawkins v. Miller, 26 Ind. 172; Mur v. Craig, 8 Blackf. (Ind.) 293; Dunn v. Frazer, 8 id. 432; Preston v. Harris, 9 Ind. 1; Pennington v. Clifton, 10 id. 172; Howard v. North, 5 Texas, 316; McGhee v. Ellis, 4 Littell, (Ky.) 244; Walford v. Phelps, 2 J. J. Marsh. (Ky.) 35; Bartlett v. Landon, 7 id. 641; England v. Clark, 4 Seam. 486.

      The bidder has a right to beware,—to avail himself of the doctrine of caveat emptor at any time before he pays his money. Walford v. Phelps, 2 J. J. Marsh. (Ky.) 35; Bartlett v. Landon, 7 id. 641.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action of assumpsit, brought in the Hamilton circuit court, for the recovery of damages claimed to have been sustained by plaintiff in error, as sheriff of that county, by reason of defendant in error having become the purchaser of a tract of land at sheriff’s sale, and refusing to pay for it. The declaration contains averments that an execution came to the hands of the sheriff, against James M. Blades, and others, issued on a judgment recovered against him as collector of taxes; that it was levied on a tract of land, and when offered for sale by the sheriff it was bid off by defendant in error, at the price of $1200; that on a certificate of purchase being tendered to him, he refused to pay the purchase money and complete the purchase. The land was again advertised, and sold under a writ of venditioni exponas, for the sum of $40. This action is for the recovery of $1160, —the difference between the price bid by defendant in error and the sum for which the land was resold under the writ of venditioni exponas. Defendant interposed a demurrer to the declaration, which was sustained by the court, and a judgment rendered for costs against plaintiff, and he prosecutes a writ of error to this court.

This court held, in the case of Ullmann v. Kent, 60 Ill. 271, that on the sale of chattels,- and the purchaser refused to receive and pay for them, the vendor might resell the goods and recover the difference in the price, if there was a loss on resale, without notice to the purchaser that a resale would be made,—and this decision was made on a review of the authorities, American and English, the weight of which establishes that doctrine. But in the case of Hill v. Hill, 58 Ill. 239, where lands were sold under a decree by a master in chancery, and the bidder refused to pay his bid and receive a deed, an.d the master reported the fact to the court, and the court ordered a resale of the property, and the master did resell at a loss, and the purchaser was sued for the difference between the bid at the first sale and the sum realized at the subsequent sale, it was held that a recovery could not be had in such a case unless the bidder at the first sale had notice that a resale would be made and he held liable for any loss of price that should be sustained on a resale, thus establish- . ing a distinction between sales of personal and real estate. The distinction and the reason for it seem to grow out of the . different kinds of property. A chattel is more liable to perish, and the price is more fluctuating, and it is a subject of commerce to a greater extent than realty. It passes from hand to hand more frequently, and upon its sale in market depends a large portion of the commerce of the world, and necessity forbids that it should be held from sale by the delay of finding the delinquent purchaser, and notifying him that a resale will be made. On the other hand, real estate is not an article of general commerce, is not perishable, and is not so liable to depreciate in price. There is, then, less necessity for a speedy resale, and hence the requirement that such a delinquent purchaser should have notice, that he may protect his interest as best he may. This latter case is the same in principle as this. They were both forced sales under process, and by legal authority. Nor can it, in principle or reason, matter whether the sale be made "by the master, as the agency used by the court, or the sheriff, as the agent of the law, to make the sale and enforce the payment of money due from the defendant to the plaintiff. The case of Hill v. Hill, supra, must therefore be held decisive of this case.

Perceiving no error in the record, the judgment of the court below must be affirmed.

Judgment affirmed.


author: Mr. Justice Dickey

text:
    The Joliet Manufacturing Company v. Andrew F. Dice.

      Filed at Ottawa March 28, 1883.

    1. Invention—-m whom is the property when made while in the service of another—construction of a contract of employment. The general rule is, that when a mechanic, in laboring for an employer in the construction of a machine, invents a valuable improvement, the invention is the property of the inventor, and not that of his employer. It may be that when the employer hires a man of supposed inventive mind to invent for the employer an improvement in a given machine, under a special contract that the employer shall own the invention when made, the invention, if so made, would in equity become the property of the employer.
    2. A workman, while in the employ of a company engaged in the manufacture of “shelters and powers,” invented a “check rower,” his contract providing that future improvements in the manufacture of “shelters and powers” made by him should belong to the company, and that he would work for the best interests of the company in every way he could, and that such aid, in whatever way given, should belong to the company,—“that is, future improvements he may cause to be made,” etc: Held, that the company was not entitled, in equity, to have the invention as to “check rowers” transferred to it as its exclusive property, and compel the inventor to assign away his right to a patent. The words “future improvements, ” have reference only to improvements in shelters and powers, and not to “check rowers.”
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.
    Messrs. Garnsey & Knox, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is a suit in chancery, brought by the appellant, seeking to compel Dice to assign to it a certain invention for a device in the construction of what are called “check rowers, ” of which the bill charges that Dice is the original inventor, and also seeking to enjoin Dice from selling or assigning the same to any other person or persons. On hearing, the circuit court granted the relief sought. The complainant appealed to the Appellate Court, where the decree was reversed and the cause remanded, with directions to dismiss the bill. Complainant appeals to this court.

The bill charges that on October 18, 1881, the parties made a written contract, as follows:

“Articles of agreement entered into between the Joliet Manufacturing Company, of Joliet, Illinois, and Andrew F. Dice, now residing at Aurelia, Iowa: The said Andrew F. Dice agrees to work for the company named for the term of five years, from the 1st to the 15th of November next, in such capacity pertaining to the manufacturing of shellers and powers, and disposing of the same, as the company may consider for their best interest, as may be assigned by the president of the company; that he will work for the best interest of the company in every way that he can, and in whatever way such aid can be given shall belong to the company,—that is, improvements (previous to this date not included) that he may make or cause to be made. For which services the Joliet Manufacturing Company agree to pay the said Andrew F. Dice twenty-seven and one-half cents per hour, and agree to give him the privilege to make his time full,—that is, that time can be averaged so as to make ten hours per day the. year round,—for all such labor performed, computing that time every month, and pay the same the 10th of the following month.
“October 18, 1881.
The Joliet Manufacturing Co.,
By A. H. Shreffler, Prest.
A. F. Dice.”

The bill further charges that Dice entered the employment of the company in pursuance of this agreement, and a few months after this, and while Dice was so employed under this agreement, complainant (appellant) added to its business the manufacture of “check rowers, ”(an attachment to a machine for planting corn,) and that Dice was assigned to the superintendence of said manufacture of “check rowers, ” and entered upon this employment “as part of and in performance of” the above agreement, and so continued for some months; that during this service Dice made known to complainant that he had conceived an improvement in “check rowers, ” and upon the suggestion of Dice the complainant directed him to employ his time, in the interests of the company, in perfecting the invention for its benefit, complainant furnishing the materials and mechanical labor in experimenting and perfecting the improvement, and that this was done,—Dice, in the meantime, receiving full pay for his time and services, according to the ternls of the written contract, and thus the invention was perfected and developed, and is the proper subject for a patent. The bill was answered by Dice., claiming to own the invention, and replication filed. The proofs tend to sustain the allegations of the bill, and also to show that Dice, while at work in making experimental structures in the shops of complainant, said that the improvement in the “ check rowers ” was being wrought out for the benefit of complainant. This some of the proofs contradict.

Assuming the facts to be as claimed in the bill, we think the decree of the circuit court was properly reversed. The general rule is, that where a mechanic, in laboring for an employer in the construction of a machine, invents a valuable improvement, the invention is the property of the inventor, and not that of his employer. It may be true that where the employer hires a man of supposed inventive mind to invent for the employer an improvement in a given machine, under a special contract that the employer shall own the invention when made, and under such employment such improvement is invented by the person so employed, such invention may, in equity, become the property of the employer. But the law inclines so strongly.to the rule that the invention shall be the property of its inventor, that nothing short of a clear .and specific contract to that effect will vest the property of the invention in the employer, to the exclusion of the inventor. In this case the bill sets up no specific contract that Dice should invent an improved “check rower,” the invention of which should be the property of complainant. The only specific contract set up is the written contract. That provides, in substance, that future improvements in the manufacture of “shelters and powers” to be made by Dice, “shall belong to” complainant.

It is said that the provision of the written contract, “that he will work for the best interests of the company in every way that he can, ” and that such aid, in whatever way given, “shall belong to the company,—that is, future improvements that he may cause to be made, ”—is broad enough to include the invention of the improved “check rowers.” Taken in connection with the context,—the preceding provisions,— these words clearly have reference only to improvements to be made in “shelters and powers, ” and have no reference to “check rowers.”

Nor do we think that when Dice consented to devote part of his time in superintending the manufacture of “check rowers, ” and also to devote part of his time to the making of an improved “check rower, ” he thereby necessarily contracted that the invention, when perfected, should be the exclusive property of complainant. The circumstances set up may render the machine actually made the property of complainant, and in equity may really amount to a license to complainant to use the machine made, and possibly to a license to make and use other like machines. Of this latter we express no opinion. But it seems clear that the facts alleged give to complainant no title, either legal or equitable, to the invention, of such a character as' to make it the duty of Dice to assign to the complainant the right to the invention, and to a patent which may issue for the invention.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    School Directors of District No. 5 v. School Directors of District No. 1.

      Filed at Mt. Vernon January 31, 1883.

    1. Limitation—in chancery, for money had and received by school directors. Where a township treasurer by mistake pays the moneys arising from taxes levied in one school district to the directors of schools of another district, the Statute of Limitations will bar a bill in equity by the directors of the district entitled to the funds after the lapse of five years from the last payment so made to the wrong district, by analogy to the limitation at law for money had and received.
    2. Same—school funds—whether held in trust. Money belonging to a school district while in the hands of the township treasurer is a trust fund, but when he pay's it out to the directors of another district, on their orders, by mistake, without fraud or collusion, or notice to the recipients that it belonged to another district, it can not be held to be a trust fund in their hands which will exclude the operation of the Statute of Limitations.
    3. Same—applies to municipal corporations. In an action on contract or for a tort, a municipal corporation may plead or have pleaded against it the Statute of Limitations.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Mr. F. A. Conaughy, and Mr. A. S. Wilderman, for the appellant:
    A court of equity has jurisdiction, on the ground that the moneys sued for are trust funds. School Directors v. School Directors, 73 Ill. 249; Hopkins v. Granger, 52 id. 504; Jackson v. Norris, 72 id. 364; Parker v. Garrison, 61 id. 250; Pooley v. Rudd, 7 E. L. & E. 290; Dillon on Mun. Corp. secs. 909, 910. Also, to compel the restoration of public trust funds misappropriated by fraud or mistake. Jackson v. Norris, supra; Stokes v. Frazier, 72 Ill. 428; Norton v. Hixon, 25 id. 439; Pool v. Docker, 92 id. 501. Also, because the action for money had and received will not lie, there being no remedy at law. Hall v. Carpen, 27 Ill. 386; Carpen v. Hall, 29 id. 512.
    The moneys sued for here being public trust funds, created by the exercise of the powers of taxation for the maintenance of the public schools of the appellant district, the Statute of Limitations does not run against this suit. Logan County v. City of Lincoln, 81 Ill. 156; County of Piatt v. Goodell, 97 id. 84; Chicago, Rock Island and Pacific R. R. Co. v. City of Joliet, 79 id. 25; Dillon on Mun. Corp. (3d. ed.) sec. 675.
    Appellant had no power to actively misapply or give away the funds sued for in this case, nor would its negligence, or even its willful disobedience of law, be binding, so as to deprive it of its funds, hence the Statute of Limitations does not run. Sherlock v. Village of Winnetka, 59 Ill. 389; Jackson v. Norris, 72 id. 364; Detroit v. Weber, 26 Mich. 284; Supervisors v. Jones, 19 Wis. 51; Supervisors v. Knipfer, 37 id. 496.
    Courts of equity interfere in many cases to prevent the bar of the Statute of Limitations, where it would be inequitable or unjust, which it is submitted it would be in this case. 2 Story’s Eq. Jur. sec. 1521, and notes.
    Mr. Charles W. Thomas, and Mr. R. F. Wingate, for the appellee:
    The money, after it reached the persons to whom paid upon appellee’s directors’ orders, was no longer a trust fund, unless the payee directors acted collusively with the township treasurer. Steele v. Clark, 77 Ill. 471; Trustees v. Trustees, 81 id. 470; Moore et al. v. Fessendeck et al. 88 id. 422.
    No recovery can be had in this case for want of a privity of contract, express or implied. Steele v. Clark, 77 Ill. 471; Bloomer v. Denman, 12 id. 240; Rogers v. Kelly, 2 Camp. 123; Trumbull v. Campbell, 3 Gilm. 502; Williams v. Everett, 14 East, 582.

      The fact that appellant is a school district does not prevent the bar of the Statute of Limitations. It runs against municipal corporations as to cases of contract or tort. County of Piatt v. Goodell, 97 Ill. 84.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in equity, filed September 6, 1880, by School Directors of District No. 5 Union, in townships 2 and 3 north, range 9 west, in St. Clair and Madison counties, Illinois, against School Directors of District No. 1 Union, in townships 2 and 3 north, range 9 west, in St. Clair and Madison counties, Illinois.

The bill alleges that complainant had been levying taxes for school purposes each year, since 1869, on property in its district, and that the treasurer of said town 2, by mistake, from confusing the names of the two districts, placed to the credit of District No. 1 Union, and paid out, on its orders, funds arising from taxes levied and collected from sections 1 and 2 in complainant’s school district; that this was done for the four consecutive years, 1870, 1871, 1872 and 1873, the amount of such taxes so diverted being the sum of $1981.63 ; that in those years the said School District No. 1 Union, being in receipt of taxes arising from levies on said sections 1 and 2 in said District No. 5 Union, did not make any tax levy on property in its district, but carried on its schools out of funds collected from taxes levied by complainant district. The object of the bill was the recovery of the above named sum of money. The circuit court, on hearing, decreed in favor of the complainant. On appeal to the Appellate Court for the Fourth District the decree was reversed, and complainant appealed to this court.

We are of opinion that the Statute of Limitations of five years, relied upon by appellee in its answer, is a bar to any recovery in this suit. The bill shows upon its face that more than five years had elapsed between the last payment of any of this money and the filing of the bill. There is nothing proved or alleged that would tend to justify this delay.

Appellant sets up the claim that the moneys sought to be recovered are public trust funds, and that for that reason the Statute of Limitations does not run against the suit. The trustee in this case was the township treasurer, and as long as he held the money it was a trust fund in his hands, but when he paid it out to appellee, or on its orders, it was not a trust fund in appellee’s hands which would exclude the operation of. the Statute of Limitations. There "was no proper trust relationship between appellant and appellee, arising from the mere receipt by the latter of trust funds belonging to the former, without anything of fraud or collusion on the part of appellee, or notice of the money belonging to appellant. It would be but the ordinary case of money had and received for the use of another; and in any such case of a personal claim, equity requires relief to be sought within the period prescribed for personal suits of like nature at law. (1 Story’s Eq. Jur. secs. 64a, 529; Hancock v. Harper, 86 Ill. 445.) The analogous suit at law would be an action of assumpsit for money had and received, the limitation for which is five years, and we think the same limitation should be applied to this suit in equity for the recovery of the money.

In an action on contract or for a tort, a municipal corporation may plead or have pleaded against it the Statute of Limitations. 2 Dillon on Mun. Corp. sec. 675; Logan County v. City of Lincoln, 81 Ill. 156; County of Piatt v. Goodell, 97 id. 84.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    The Chicago and Alton Railroad Company v. The People, for use of David D. Pierson.

      Filed at Springfield March 29, 1883.

    1. Railroads—what is a “regular passenger train" which is required to stop at county seat stations. A through passenger train, equipped and operated in the same manner as other passenger trains on the same road, carrying passengers and baggage as other trains, and running upon the official time table of the company the same as its other passenger trains do, the only difference being that the other trains stopped at all the stations while this did not, is held to be a “regular passenger train,” within the meaning of the act approved May 29, 1879, which requires all such trains to stop at county seat stations a sufficient length of time to receive and let off passengers with safety. The act does not, perhaps, include a wild train, a freight or excursion train, or a special train.
    2. Same—act requiring regular passenger trams to stop at county seats is a proper police regulation. The act of May 29, 1879, requiring all regular passenger trains to stop at county seat stations long enough to receive and let off passengers with safety, is not a regulation of inter-State commerce, and therefore inhibited by the constitution of the United States, though the line of the road may pass through different States. Such a law is but a proper exercise of the police power of the State.
    3. Same—subject to.reasonable police regulations. A railroad company takes its charter upon the implied condition that its franchises shall be exercised subject to the power of the State to impose such reasonable regulations upon it as the comfort, safety or welfare of society may require.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Greene county; the Hon. Albert G. Bubb, Judge,' presiding.
    Mr. Henry C. Withers, for the appellant.
    Mr. James R. Ward, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought against the Chicago and Alton Bailroad Company to recover a penalty for a failure to stop one of its passenger trains at its station at Carrollton, the county seat of Greene county, a sufficient length of time to receive and let off passengers, as required by an act approved May 29, 1879. (Laws of 1879, page 225.) The act provides : “Every railroad corporation shall cause its passenger trains to stop upon its arrival at each station advertised by such corporation as a place for receiving and discharging passengers upon and from such trains, a sufficient length of time to receive and let off such passengers with safety: Provided, all regular passenger trains shall stop a sufficient length of time at the railroad station of county seats to receive and let off passengers with safety. ”

On the 11th day of December, 1879, (the time the railroad company was charged with the omission of the duty imposed by the law,) the company was operating three passenger trains on its line of road through Carrollton. These trains passed through the town each way daily. Two of these trains stopped regularly at the station, but the other, known as the “Kansas City Express, ” which passed through, going south, at 5 o’clock A. M., and returned, going north, at 11:32 o’clock P. M., made no stop whatever at Carrollton, except on Sundays the .train was stopped to deliver and receive the mail. It is contended by the plaintiff that the train which passed through Carrollton at 11:32 o’clock in the night of ■December 11, 1879, was a regular passenger train, within the intent and meaning of the statute, and because the company failed and refused to stop this train at Carrollton and receive passengers who desired to take passage, it is liable for the penalty imposed by the law. On the other hand, it is claimed by the railroad company that this being a through train from St. Louis to Kansas City, conveying through passengers, was not, under the circumstances, a regular passenger train, within the meaning of the statute, and that the company was not bound to stop at Carrollton, although it was a county seat.

The train in question was equipped and operated in the same manner as any other passenger train on the road. It carried passengers and baggage as did other trains. It run upon the official time table of the company as other trains did. Indeed, the only difference between this and the other passenger trains on the road was, that the other two stopped at all the stations while this did not. On account of this difference, can the train, within the meaning of the statute, be regarded other than a regular passenger train ? We think not. The language of the act would not, perhaps, include a wild train, a freight train, an excursion train or a special train; but where a train was engaged in carrying passengers, running regularly every day upon an advertised time card of the company, equipped as all other passenger trains are, we are satisfied such a train was designed by the legislature to fall within the terms of the act, “all regular passenger trains.” Had the legislature intended to except a fast train or a through train from the operation of the law, it would have been an easy matter to have framed the law in such a way that no doubt could have existed in regard to the intention, and if such had been intended, language of a different character would no doubt have been used.

But it is contended that if the act is broad enough to include the train in question, then its effect is a regulation of commerce between the States, and hence is inhibited by the constitution of the United States. The act does not undertake to regulate commerce between States. It imposes no restriction upon the introduction or transportation of any article of commerce whatever. A State regulation which requires all passenger trains to stop at railroad crossings, at draw-bridges, and requires the speed of trains to be reduced when running through incorporated towns and cities, has never, so far as we are informed, been regarded as a regulation of commerce, although the line of railroad thus regulated may pass through several States. And if the legislature has ■ the right to require all trains to stop at- a railroad crossing, and'to require the spéed of all trains'to be reduced when running through a city or incorporated town, on the same principle, and- for a like reason, it has the power to require all regular trains to stop at the station in all county seats. A law of this character is but a proper exercise of the police power of the State, which has always been upheld and sustained by the courts.

This railroad company accepted its charter upon the implied condition that its franchises would be exercised subject tó the power of the State to impose such reasonable regulations as the comfort, safety or welfare of society might require. Numerous cases might be cited in support of this principle. In Galena and Chicago Union R. R. Co. v. Loomis, 13 Ill. 548, a law requiring a bell or whistle to be attached to each engine upon a railroad, was sustained, and the court held that “the legislature had the power, by the enactment of general laws, from time to time, as the public exigencies may require, to regulate corporations in the exercise of their franchises, so as to provide for the public safety. ” In Ohio and Mississippi R. R. Co. v. McClelland, 25 Ill. 140, an act requiring all railroads then in operation to be fenced, and imposing a' penalty for non-compliance, was sustained, and it was held that acts of incorporation are subordinate to general police regulations. In speaking of railroad corporations it is there said: “They are subject to be controlled for the general good, * * * and for that purpose the legislature may, beyond all doubt, regulate the speed of their trains, require them to place guards at bridges and other points of danger, and they may, as they have done, require the sound of a whistle or a bell at road crossings, for the safety of passengers, together with their property. ” See, also, Thorp v. R. and B. R. R. Co. 27 Vt. 150. A reference to other cases will not be necessary.

If the legislature had the right, in the exercise of the police power of the State, to provide for the regulation of railroad corporations in the respects named in the cases cited, there can be no doubt in regard to the validity of the law in question. Did the act contribute to the comfort, safety or welfare of the public ? If it did, and did not deprive the company of any essential right conferred by its charter, its passage was a proper exercise of the police power. (Cooley on Const. Lim. 577; Potter’s Dwarris on Statutes and Const. 458; Lake View v. Rose Hill Cemetery, 70 Ill. 191.) In the enactment of the law requiring all regular passenger trains to stop at county seats, the legislature, no doubt, had in view the great benefit the public would derive in the increased facilities for reaching the county seat, to aid in the dispatch of business in courts, in the prompt arrest and prosecution of criminals who might he indicted in the courts, in the attendance of witnesses, grand and petit jurors,—indeed, the prompt and efficient transaction of all business in the courts held at the county seat, and the facility for the examination of the records on the sale and conveyance of property. These and various other matters pertaining to the welfare of the public doubtless led to the enactment of the law, and in its enactment we are fully satisfied that the legislature transcended none of its powers, nor did it violate any chartered right of the railroad company.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author:
Mr. Chief Justice Scott
      Mr. Justice Walker,

text:
    The People ex rel. A. H. Bell v. Charles S. Zane, Circuit Judge.

      Filed at Springfield March 29, 1883.

    1. Mandamus —jurisdiction of Supreme Court—change of venue. This court has jurisdiction to hear and decide an application for a writ of mandamus against a circuit judge, to direct him to try a defendant for an alleged crime on a change of venue from another county.
    2. Courts—power to vacate and amend their orders and records during term. The doctrine, by the common law, is, that during the term at which any judicial act is done, the record thereof remains under the control of the court, and is subject to change by the judge, but after the term is past no alteration of the record is allowable. This rule is alike applicable to criminal and civil causes.
    3. Same—power to amend or vacate an order awarding a change of venue. The circuit court awarding a change of venue in a criminal case still has jurisdiction of the cause until the change is perfected by transfer of the original and other necessary papers in the case, and before this is done, the court, during the same term, has the rightful power to change its former order as to the county to which the cause shall be sent, or it may, if the accused so desires, vacate the order for the change of venue, and allow him to withdraw his application. • .
    4. Change op venue—reviewing proceedings had in the court awarding the change. Where a change of venue has been awarded in a criminal cause, the court to which the cause is sent can not review the proceedings in the court awarding the change, and for mere error or irregularity therein refuse to take.cognizance of the cause, when the prisoner himself makes no objection to the jurisdiction of the court.
    5. Same—conditions to the jurisdiction of the court to which the change is awarded. The court to which a cause is sent by a change of venue can not proceed, if the accused objects to its jurisdiction, until it has obtained possession of the cause,—that is, until the transcript of the record from the court making the order, and the original papers which the statute requires to be sent with it, shall have been lodged with the court. Until this is done the jurisdiction of the court does not appear from its own record.
    6. Where, on the application of one indicted for murder, the venue was ordered to be changed to another county, but during the same term at which such award was made, and while the record and original papers remained with the court making the order, the court, on the motion of the accused, set aside such order, and directed the venue to be changed to a different county, to which the prisoner was sent, with a transcript of the record and original papers, and. the accused asked for a trial in such court, offering to waive all objection there might be to the jurisdiction of such court, it was held, that the latter court had jurisdiction of the cause, notwithstanding the amendment of the order as mentioned, and a mandamus was awarded, directing the judge of that court to proceed with the trial of the accused, under the indictment.
    This was a petition in this court by the relator, for a mandamus, against Charles S. Zane, judge of the circuit court of Sangamon county, to require him to take cognizance of an indictment preferred by the grand jury of Macoupin county against one Lewis Biggs, in which cause the venue had been changed, and the cause sent to the circuit court of Sangamon county, and to require such judge to try the cause. The material facts are fully stated in the opinion of the court.
    Mr. James McCartney, Attorney General, and Mr. Alexander H. Bell, for the relator:
    The propriety of proceeding by mandamus in this cause is approved by this court in People v. Scates, 3 Scam. 351, and Brennan v. People, 15 Ill. 512.
    We maintain, paradoxical as it may seem, that while the court to which a change of venue is ordered ad quern acquires jurisdiction upon the making of the order, it was, nevertheless, coupled with the condition that the court granting the change should adjourn without setting aside its order. To make its jurisdiction complete, the adjournment or non-action of the court making the order must first transpire. Bowles v. State, 5 Sneed, 360; Logston v. State, 3 Heisk. 414; 2 Meigs’ Digest, 1286.
    We take our position on the broad doctrine that the court has control of its own records during the term. During the term the records are in the breast of the court, and may be by him changed, annulled or modified, as may seem proper under the circumstances. Freeman on Judgments, chap. 4, sec. 69.

      Mr. R. H. Hazlett, and Mr. John Mato Palmer, for the respondent:
    When the order was made in the case in the Macoupin circuit court changing the venue to Christian county, the jurisdiction of the first named court was divested, and. the jurisdiction of the latter' court at that time attached, and hence the subsequent order of the Macoupin circuit court changing the venue to Sangamon county was coram non judice, and void. Billingall v. Duncan, 2 Gilm. 593; Hunter v. People, 1 Scam. 454; Wight v. Kirkpatrick, 4 id. 339; Goodhue v. People, 94 Ill. 47; Frazier v. Fortenberry, 4 Ark. 162; Stringer v. Jacoby, 9 id. 498; Henderson v. Henderson, 55 Mo. 543; State v. Hopper, 71 id. 427; Farr v. Fuller, 12 Iowa, 83; Green v. State, 19 Ark. 178; Stone v. Robinson, 4 Eng. 474.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

At the January term, 1883, of this court, leave was given to file a petition, in the name of the People of the State, for a mandamus, to require the Hon. Charles S. Zane, judge of the circuit court of Sangamon county, to take jurisdiction of the case of the People against Lewis Biggs, being an indictment for murder, and to proceed to try the cause so soon as the same could be done with justice to the parties concerned. Accordingly such a petition was filed, in which were set forth all the facts on which the judgment of the court is invoked.

No question is made as to the jurisdiction of this court to afford the relief prayed for in the petition. Respondent, by his answer, asks the court to “take cognizance of the cause, and hear and determine the same, and render such judgment therein as to the court may seem meet and proper, and in accordance with law. ” But had the jurisdiction of this court in the premises been challenged, its jurisdiction in such cases is manifest from its previous decisions. The People v. Scales, 3 Scam. 351; Brennan v. The People, 15 Ill. 511.

Concerning the facts of the ease there is no disagreement, as they all appear in the pleadings, by the admission of respondent. At the February term, 1882, of the Macoupin circuit court, Lewis Biggs was indicted by the grand jury of that county for the crime of murder. At the September term of that court next after the indictment was found, the accused presented his petition for a change of venue in the cause, on the ground the 'inhabitants of the county were prejudiced against him, and asked that the venue of the cause be changed to some county where the same prejudice did not exist. The prayer of the petition was granted, and an order entered to change the venue to the county of Christian, and the usual other orders in aid thereof were made. After-wards, and while the prisoner still remained in the custody of the sheriff of Macoupin county, and the records and all original papers in the cause still remained in that court, on the application of the accused, made at the same term of court at which the order just recited was entered, the circuit court of Macoupin county set aside its former order entered to change the venue of the cause to the county of Christian, and by an order entered of record at the same term of court, changed the venue of the cause to the county of Sangamon, and made the usual further orders as to sending the prisoner, and the records and papers in the cause, to that county. The transcript of the record and the original papers in the cause were transmitted, by the clerk of the Macoupin circuit court to the Sangamon county circuit court, and the sheriff, as was his duty, transferred the prisoner to the custody of the sheriff of Sangamon county. When the cause came up for trial in the county to which it had been sent, the State’s attorney of that county entered a motion to remand the cause to the county of Macoupin, for the reason the circuit court of Sangamon county had no jurisdiction to try the cause. The accused being present, in proper person and by written consent waived all objections to the jurisdiction of the court, and offered thereby to submit to its jurisdiction, but the court allowed the motion so far as to refuse to assume jurisdiction of the cause, and ordered the clerk to transmit the papers of the cause to the clerk of the circuit court of Macoupin county, and directed the sheriff to deliver the body of the prisoner to the sheriff of Macoupin county without delay.

On the facts, as they are admitted to be, no reason is perceived why the circuit court of Sangamon county should not have taken cognizance of the cause submitted to it, since the prisoner waived all objections to its jurisdiction, and to have caused the accused to be tried for the crime alleged against him, according to law, so soon as the same could be done with justice to the parties concerned. The statute authorized the circuit court of Ma'coúpin county to change the venue of the case then pending before it, for certain reasons specified, on the application of the accused. Its jurisdiction in such matters is obvious, and it acted within statutory power when it made the order changing the venue on the application of the prisoner, as was done in this case. The utmost that can be claimed is, the venue was improperly changed by the court in which the indictment was found against the prisoner. But can the circuit court of the county to which the cause is sent inquire into that fact, and if, in its opinion, the proceedings changing the venue were irregular, for that reason refuse to take cognizance of the cause, if the prisoner himself makes no objection to the jurisdiction of the court? This question seems to be fully'settled, both by. the statute and the previous decisions of this court. Section 35 of the Venue act, Rev. Stat. 1874, declares, “all questions concerning the regularity of proceedings in obtaining changes of venue, and the right of the court to which the change is made to try the cause and execute the judgment, shall be considered as waived after trial and verdict.” In the case of The People v. Scates, supra, although the point was not definitely passed upon because it was not necessary to the decision, it was said the court to which the cause is sent is not a court to review and reverse the decision of the court making the order changing the venue of a cause, and for that reason has no authority to inquire into the regularity of such order. This view conforms to the obvious meaning of the statute. Irregularities in obtaining a change of venue, where they exist, concern no one but the party asking it, and if he simply fails to make objection, before going to trial, to the jurisdiction of the court to try his cause, all irregularities that may have intervened are, by the provisions of the statute, considered waived. This construction of the statute would seem to exclude the idea the court to which the cause is sent may, of its own motion, refuse to take cognizance of the cause. In Brennan v. The People, supra, it was held that even if the venue was improperly changed, the defendants could not complain of what was done at their instance, and that all irregularities in obtaining the change of venue might be waived by the defence,—and that was a capital case. In its opinion in the Brennan case, the court recognized the rule declared in The People v. Scates, that although the venue may have been improperly changed, it was the duty of the court to which the case was sent to assume jurisdiction to try the cause, unless objections were made by defendant himself. It was there distinctly held that as the defendants in that case made no objections in the court below to the change of venue, they were concluded, by statute, from making any in the Supreme Court. In Logston v. The State, 3 Heisk. 414, it was said by the court in considering the jurisdiction of the court to which a case was sent on a change of venue: “The indictment being presented, and no objection made by the accused or his counsel, the court was authorized and obliged to proceed with the trial.” There are obvious reasons in support of the rule adopted in such cases. Should the court to which the cause is sent be permitted, of its own motion, to refuse to take cognizance of the ease when the prisoner himself makes no objection, it might greatly embarrass the administration of the criminal law, and lead to most unprofitable controversies between courts of equal jurisdiction.

But the decision may be placed on the broader ground that while the record and the original papers in the cause remain in the possession of the court making the order, that court, on the application of the accused, may change its previous order in respect to the venue, if done at the same term, and may change its order as to the county to which the cause should be sent, or if the accused demand it to be done, the court might vacate the order to change the venue, and allow him to withdraw his application. This proposition, as will appear in the sequel, has for its support both principle and authority. Undoubtedly the law is, it is the order of the court changing the venue that gives jurisdiction to the court to which the cause is sent. That jurisdiction in no sense or degree depends on any ministerial act of the clerk of the court making such order. But it is equally well settled that the court to which the cause is sent can not proceed, if the accused objects to its jurisdiction, until it has obtained possession of the cause,—that is, until the transcript of the record from the court making the order, and the original papers which the statute requires shall be sent with it, shall have been lodged with the court. Unless that is done the jurisdiction of the court to which the cause is directed to be sent is not so complete, by the mere entry of the order to change the venue, that it may proceed to try the cause over objections by defendant. It is for the obvious reason the jurisdiction of the court does not appear from anything on its own records. Text writers uniformly state the doctrine to be, that by the common law, at the term at which any judicial act is done the record' thereof remains in the breast of .the judge of the court, and is subject to change at that term by the judge, but after the term is past no alteration of the record is allowable. (3 Blackstone’s Com. 407; Freeman on Judgments, chap. 4, sec. 69.) Amendments and changes in judgments and decrees are permitted at the same term at which they are entered, on the hypothesis the record still remains with the court, and has not passed from its control. After the close of the term the record is complete,, and having passed from its control there remains no power in the court or judge to make changes in it. The rule in this respect is recognized wherever the common law prevails, as applicable alike-to criminal and civil causes, and is- so reasonable it commends itself to the common understanding. Without power in the courts to allow amendments to its records there would often be a failure of justice.

It would be quite difficult to assign any good reason why this doctrine of amendments, so indispensable in many instances to the attainment of justice, may not be applicable to orders changing the venue in causes as well as to other judicial acts, while the record and original papers remain with and under the control of the court. The application of the rule to the dismissals of actions is a matter of almost daily occurrence in the courts, and its correctness has never-been called in question. Under the practice that prevails, an order dismissing a cause may be set aside, and the cause reinstated at the same term of court. Obviously the order of dismissal, if suffered to become absolute by the adjournment of the court for the term, would operate to dispossess the court of all jurisdiction over the casé; but it is commonly conceded the reinstating order, if made at the same term, gives the court the same jurisdiction it originally had in the premises. The reason and necessity for the application of the rule to matters of venue is the same, and it would seem the same principle ought to control. So long as the record and original papers remained with the court making the order, the accused acquiescing in its jurisdiction, that court, on principle, would appear to have the same control over venue orders as it would have over any other record in its possession. Confessedly the court may change orders in other judicial proceedings at the term when the same are entered, and why may it not do the samé thing touching orders concerning venue, at any time, until it shall have lost control of the case by adjournment, or otherwise ? If any distinction exists in this respect, it should rest on some reason that can be appreciated by the common judgment, or otherwise none should be tolerated.

It will be remembered the court to which the first order entered directed the- case to be sent, never, in fact, obtained possession of the cause or the custody of the accused. The record and the original papers remained with the court making the order, and it seems clear that court, on the application of the accused, might change its order as it did in respect to the venue, as it still had control of the cause, upon satisfactory reasons being shown for so doing. As has been seen, the accused could not complain of what was done on his own motion, and the court to which it was subsequently sent would have jurisdiction to try the cause according to law. A case analogous in principle with the one being considered is Sevalius v. Pickel, 30 Wis. 507.

Had the record and the original papers in the cause passed to the possession of the circuit court of Christian county, under the order changing the venue to that county, or had the court adjourned for the term, then the circuit court of Macoupin county would have lost all jurisdiction over the ease, and could thereafter make no order in it. Observing this distinction, all difficulty suggested in the practical application of the rule adopted would be obviated, and there could ■ be no conflict between courts of equal jurisdiction.

The peremptory writ of mandamus must be allowed, and if will be so ordered.

Mandamus ordered.

Mr. Justice Walker,

dissenting:

I am unable to concur in the judgment awarding a writ of mandamus in this case. I hold that when the circuit court of Macoupin county entered the order changing the venue to Christian county, the former court lost all jurisdiction, and the latter became invested with full and complete jurisdiction; and had the latter court" proceeded the next day to try the case, and judgment had been rendered, could the Macoupin circuit court, by vacating the order changing the venue before that court adjourned, have vacated that judgment and compelled a new trial, notwithstanding an acquittal ? I presume no one would contend that could be done, although the term had not adjourned at which these orders were entered.

I presume no one will deny that it is the law, operating through the judge, that gives force and effect to the sentences of the court. I know of no other means through which the judicial power of the State can be exercised. That function can alone be exercised by the judge, and the change of venue must and can alone be granted by the judge or the court. If, then, it be said the venue is not changed until the clerk of the county from which the venue is sought to be taken lodges the papers in the case with the clerk of the court to which it is taken, then that is to hold it is the clerk, and not the court, that grants the change of venue. (White v. The People, 94 Ill. 604.) Or if it be held that the venue is not changed until the court granting it has adjourned, then, in practice, the entering an order for a change of venue at the beginning of a term operates as a stay of proceedings till the end of the term, and it would be error to try it before that time, although the term might continue three months or more. Did the legislature intend to create such delays, when adopting this law? Most assuredly not. Such could not have been nor was it intended.

But there is another view of the question, which, although requested, was not discussed by counsel, and that is, whether . or not the order of the circuit court of Sangamon county, conceding that court was fully invested with jurisdiction to proceed with and try the ease, did not, by its order remanding the case, change the venue of the case back to Macoupin county. That court was invested with full power to change the venue of this and any other case, and can any one doubt, that, having that power and jurisdiction of the subject matter and the parties, and an order is made changing the venue, the order would be binding and conclusive until the order should be vacated or reversed, however erroneous? Such an order, made without being asked, or even against the objection of both parties, would be binding and conclusive so long as it remained, in force. Of this, I believe, there can be no question. Whatever the form, it operated as and was a change of the venue of the case from Sangamon to Macoupin county.

Here there is an order, unimpeached, returning the case to Macoupin county for trial or other proceedings. Can there be the shadow of a doubt that, even' if the case was, when the order was made by the Sangamon circuit court, properly in that court, the venue' was changed back to Macoupin county by that order? We must look to the substance, and not the mere form, of the order. It purported, and its purpose was, to reinvest the circuit court of Maqoupin county with jurisdiction, and if rightfully pending in the Sangamon circuit court its manifest and undeniable effect was to change the venue to Macoupin county. It may be there was gross error in making the order, but that can not be inquired of in this proceeding. Then how can it be that there can be the slightest pretense that the Sangamon circuit court has the shadow of legal right, jurisdiction or power to try this ease with that order standing in full force? The term.at which the order was made having closed, there is no power in that court to vacate that order, nor can we reverse it in this proceeding. If the accused shall be tried and convicted in the face of .that order, and he were to bring the case to this court, would it be possible to sustain the conviction, notwithstanding the peremptory writ of mandamus? For these reasons I dissent to the awarding of the writ.