author: Mr. Justice Craig

text:
    James W. Schofield et al. v. Frank C. Pope.

      Filed at Ottawa September 27,1882.

    1. Appeal—from trial cowrt to Supreme Cowrt—in forcible detainer. Unless the validity of a statute is involved in a proceeding in forcible detainer, an appeal will not lie from the judgment of the circuit court to this court, the title to the land not being in question.
    2. Same—whether validity■ of a statute is involved. In an action of forcible detainer brought before a justice of the peace in Cook county, the venue in the justice’s summons was, “State of Illinois, Cook county,” and “Chicago'district,” and the writ was directed to “any constable Of said district.” The defendants appeared without objection to the process and went to trial, and also on their appeal another trial was had on the merits in the circuit court, and judgment rendered against the defendants: Held, that the validity of the statute of May 30, 1881, purporting to divide Cook county into two justice’s districts, was not involved in an appeal from the judgment of the circuit court, and hence such appeal would not lie directly from that court to this court.
    3. Justice of the peace —jurisdiction by appearam.ce. No irregularity in the summons issued by a justice of the peace can affect his jurisdiction of the subject matter, and such irregularity in the process, or service thereof, is waived by the appearance of the defendant and going to trial on the merits. Such appearance confers jurisdiction of the person of the defendant, even if there is no summons or no service whatever.
    4. Same—appeal cures defects in proceedings before justice. By am appeal from the judgment of a justice of the peace to the circuit court, the defendant so appealing enters his appearance to the cause in the circuit court, and by so doing waives all defects in the process, the want of process, defects in the service of or want of service, before the justice.
    Appeal from the Circuit Court of Cook county; the Hon. John Gr. Rogers, Judge, presiding.
    Messrs. M. A. Rorke & Son, for the appellants:
    Appellants’ motion to quash the justice’s summons and dismiss the suit involves the constitutionality and validity of the act of May 30, 1881, relating to justices of the peace. The justice’s summons shows it was issued under that act, which this court has held unconstitutional. People v. Meech, 101 Ill. 200.
    The validity of a statute being involved, this court has jurisdiction of the appeal. Gross v. People, 95 Ill. 366. See, also, City of St. Louis v. Trustees, 7 Bradw. 295; City of Cairo v. Bross, 7 id. 296; Falch v. People, 8 id. 351; Rosenstein v. Case, 9 id. 482; People v. Holtz, 92 Ill. 426; Gage v. Busse, 94 id. 590.
    The motion to dismiss was the proper practice to present the objection to the justice’s jurisdiction. Brown v. Killer, 32 Ill. 151; Stolberg v. Ohnmacht, 50 id. 442; Doran v. Gillespie, 54 id. 368; Leary v. Pattison, 66 id. 203; Center v. Gibney, 71 id. 557; Evans v. Bouton, 85 id. 581; Beel v. Pierce, 11 id. 92.
    Mr. James F. Meagher, for the appellee;
    A proceeding under the Forcible Detainer act does not involve a freehold, and hence no appeal lies directly to this court. McGuirk v. Burry, 93 Ill. 118; Preston v. Gahl, 94 id. 586.
    The use of the word “district, ” in the justice’s summons, instead of “county,” could not affect the jurisdiction of that officer to try the action. But there can be no serious question as to the jurisdiction of the circuit court. By appealing, the defendant waives all informalities and defects in the process issued by the justice, or the service, and submits himself to the jurisdiction of the circuit court. Sec. 72, chap. 79, Rev. Stat.; Swingley v. Haynes, 22 Ill. 216; Burns v. Nichols, 89 id. 480; Buettner v. Norton and Dickinson Manf. Co. 90 id. 415.
    The justice’s jurisdiction of the subject matter of the suit does not depend upon the act of the legislature declared unconstitutional in the Meech case, but upon another statute, the validity of which can not be questioned.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of forcible detainer, commenced on the first day of June, 1881, before a justice of the peace in and for the tora of South Chicago. The defendants appeared before the justice of the peace, a trial was had, and judgment rendered in favor of the plaintiff. The defendants then appealed to the circuit court of Cook county, where the causo was again tried before a jury, and a like judgment was rendered in favor of plaintiff. To reverse the judgment of the circuit court the defendants appealed to this court.

An appeal from the circuit court to this court does not lie unless the case involves a franchise, a freehold, or the validity of a statute, or unless the case relates to the revenue. It is not claimed that a franchise is involved, or that the case involves any question in regard to the revenue, and in McGuirk v. Burry, 93 Ill. 118, and Preston v. Gahl, 94 id. 586, this court expressly held that a proceeding in forcible detainer did not involve or call in question the title to land.

But it is urged that the case involves the validity of a statute, and upon this ground the appeal conferred jurisdiction on this court. This position is predicated on the alleged fact that the justice proceeded under the act of May 30, 1881, which purports to divide Cook county into two districts. The only ground, however, for supposing that the justice proceeded under the act of May 30, 1881, is, that the venue in the summons, in addition to the usual words, “State of Illinois, county of Cook, ” contains also the words, “Chicago district, ” and the summons is directed to the sheriff, or any constable of said “district.” The complaint was made under chapter 57, Bev. Stat. 1874, page 535, entitled “Forcible Entry and Detainer,” which conferred jurisdiction of the subject matter on the justice of the peace, and the entire proceedings were had under and in conformity to this statute. If the summons was irregular for the reason that the venue contained the words “Chicago district,” and it was directed to any constable of said “district,” when it should have been directed to any constable of the countyj such fact could not affect the jurisdiction’of the justice over the subject-matter involved in the litigation. If the summons was irregular or defective, or had defendants failed to appear, it may be the justice would not have acquired jurisdiction of the person, and hence could not have proceeded; but when the defendants appeared and proceeded with the trial, the jurisdiction of the justice over the person was complete, however defective the summons may have been. After the complaint was filed, if the defendants had appeared and gone to trial without any summons, the jurisdiction of the justice could not have been called in question. The act of May 30, 1881, does not profess to confer jurisdiction, in this class of cases, upon justices of the peace. The jurisdiction comes from chapter 57, Eev. Stat. 1874, supra.- And when the defendants appeared before the justice and proceeded with the trial, the act of May 30, 1881, had no bearing whatever on or relation to the case.

Again, after the trial before the justice the defendants appealed to the circuit court, and a trial was had before a jury, verdict returned, and judgment entered upon it. This court has often held that an appeal by a defendant from the justice to the circuit court is a waiver of all' defects in the process issued by the justice. Swingley v. Haynes, 22 Ill. 216, is in point, where it is said: “When the defendant files his appeal bond, he thereby enters his appearance to the cause in the circuit court, and by so doing waives all defects in the process, the want of process, defects in the serving of, or want of service, before the justice. ”

As the proceedings in this case did not depend upon, and were not conducted under, the act of May 30, 1881, we perceive no ground for holding that the validity of that act is called in question.' The validity of no law, therefore, being involved, the appeal will be dismissed.

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    John Jenkins v. Elizabeth Jenkins.

      Filed at Ottawa September 27, 1882.

    1. Separate maintenance—living apart mtist be without wife’s fault. In order to authorize a decree against a husband for the separate maintenance of his wife, she must show that her living apart from him is “without her fault. ” Where the wife had for twelve years subjected her husband to vexatious suits on groundless charges of extreme cruelty, and to» another on a groundless charge of adultery, and while the latter suit was still pending she voluntarily went to his house with a party of her friends, and he ordered her and her friends to leave, refusing to give her supper and forbidding her to enter a bedroom, saying she could not stay that night, and this was all the evidence to show her living apart from her husband was without her fault: Held, that the evidence, under the circumstances, was not sufficient to justify a decree of an allowance for a separate maintenance.
    2. After such a state of affairs and course pursued by the wife, she should, on her return to his house, have distinctly told her husband that she proposed to abandon the litigation against him, and live in peace with him, and have given him the opportunity of considering her proposal to return; before she could put him in default.
    - Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. Arthur D. Eioh, for the appellant:
    The courts will not encourage married persons to live apart, otherwise than under the authority of a judicial decree. 1 Bishop on Marriage and Divorce, see. 550.
    If a wife abandons her husband without justifiable cause, or is living apart from him without his consent or fault, he will not be liable for her separate maintenance. Wahle v. Wahle, 71 Ill. 510; Ross v. Ross, 69 id. 569; Angelo v. Angelo, 81 id. 251; Bevier v. Galloway, 71 id. 517.
    While a husband is guilty of no cruelty towards.his wife, and is willing to provide her a home and all necessaries there, he is not bound to furnish them elsewhere. McCutcheon v. McGahay, 11 Johns. 282; Rutherford, v. Cox, 11 Mo. 347; Ross v. Ross, 69 Ill. 569; 1 Bishop on Marriage and Divorce, sec. 573.
    If at the time a wife, after having left her husband, offered to return, he had good grounds for a divorce against her for desertion, it was quite proper for him to refuse to condone her offence and refuse to let her remain with him. If her divorce suits which she had instituted were not brought in good faith, her desertion for that purpose will not be excused in law. Doyle v. Doyle, 26 Mo. 545; Simons v. Simons, 13 Texas, 468; 1 Bishop on Marriage and Divorce, sec. 802.
    Messrs. E. & A. Van Burén, for the appellee,
    commented upon and reviewed the evidence, to show that appellee’s offer to return and live with her husband was made in good faith, and contended that his refusal to receive her back gave her the right to a separate maintenance. Also, that the finding of the facts by the Appellate Court justified the decree, and that such finding of the facts was conclusive in this court, citing Hurd’s Stat. p. 820, sec. 88; Gravitt et al. v. Davis, 92 Ill. 193; Laird v. Warner, id. 204; Carr v. Miner, id. 604; Morris v. Preston, 93 id. 215; Illinois and St. Louis R. R. Co. v. Cobb, 94 id. 55; Germania Fire Ins. Co. v. McKee, id. 494; Hewitt v. Board of Education, id. 528; Albin v. Kinney, 96 id. 214; Brandt v. Lill et al. id. 608.
   Mr. Justice Dickey

delivered the opinion of the Court: '

This is a suit by Mrs. Jenkins against her husband for separate support, upon the ground, as alleged, that she is living separate from her husband without her fault. The record shows that the parties were married in 1867. Soon after the marriage the parties had a difficulty, and she filed a hill for divorce upon a charge of cruelty. That bill was dismissed. In 1872 she filed another bill seeking a divorce upon the ground of alleged cruelty. On hearing, this bill was dismissed by the court. The complainant at once returned to his house, and lived in his house for a time, and again filed a bill for divorce,- charging her husband with adultery. This was in May, 1875. In this case the circuit court made the decree sought. That- decree was reversed upon the merits by this court, in an opinion filed January, 1878. (See 86 Ill. 340.) This bill was filed June 7, 1878. She now claims to be living separate and apart from her husband without her fault, upon the allegation that he wrongfully refuses to permit her to live with him at his home. This allegation she attempts to support by proving that on May 5, 1878, she, in company with some friends (the chief of whom was a Mrs. Smith), went without notice to the dwelling of her husband, and entered the house when he was absent; that soon he came in and found them there, and seemed very much surprised, and ordered her and her friends to leave; that in the interview she asked for her supper, which was refused, and attempted to enter a bedroom with a traveling bag in her hand, and he forbade it, and told her she could not stay there that night.

On reading all the proofs, it seems plain to our minds that the complainant’s separate living from her husband is not shown to be “without her fault. ” The circumstances of Ibis visit to the house of her husband excite strongly the suspicion that what she sought was not a home in the house of her husband, where she might live as a dutiful wife, but rather evidence of a refusal on his part of shelter, so that she might institute a suit for separate maintenance. Be this as it may, it is plain that a wife who had been at war with her husband for twelve years, and who has subjected him to a vexatious suit on a groundless charge of extreme cruelty, and who had also subjected him to another vexatious suit upon a groundless charge of adultery,—who, while the latter suit was still pending, and after a voluntary absence from her husband’s home for years, should suddenly arrive with a party of friends at his house, and say and do exactly what she says she did say and do, and no more,—has no right to complain that her husband refused to permit her in his house. She did not say to him, “I have returned seeking shelter under your roof as your wife, hoping to live in peace.” She did not retract her .groundless charges of cruelty and of adultery. After such a history she should at least have distinctly told her husband that she proposed to abandon the war and to live in peace, and she should, to put him in fault, and before she could have adequate excuse for separate living, have giving him the opportunity of considering her proposition to return, so that he might, as he had a right to do, determine what room or rooms she should take.

The decree of the circuit court, we think, is not warranted by the proofs, and ought to have been reversed by the Appellate Court. The judgment of the Appellate Court is therefore reversed, and the cause remanded, that the bill may be dismissed.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    Lazarus Silverman v. Mason B. Loomis.

      Filed at Ottawa September 27,1882.

    1. Covenants—contracts—cancellation of. corresponding covenants each to the other. Where A conveys to B' land upon which there is an incumbrance of record, with covenants against incumbrances and of warranty, and B subsequently reconveys to A with like covenants, the several' conveyances between them will, by operation of law, cancel or extinguish the covenants in B’s deed as to all incumbrances covered by A’s deed to B, to avoid circuity of action. In such case the law construes such covenants as mutually canceling each other, so that no action can be maintained by either of the parties or their assigns.
    2. Purchaser—rights and liabilities as to prior covenants. Where a grantee in a deed covenants therein to'take up and surrender certain notes to a third person as a part payment of the consideration, and subsequently conveys the premises by quitclaim deed, his 'grantee will take the land burdened with this covenant, and in equity will be required to perform the covenant. The assignee of a grantee can not recover on a covenant made by the grantor of the latter, where, by reason of matter apparent upon the record of deeds in the line of his title at the time of the assignee’s" purchase, .the grantee himself could not have recovered. The assignee in such case occupies no better position than the original covenantee through whom he claims.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon..George. Gardner, Judge, presiding.
    The facts material-, to a proper: understanding of this case are, in substance, as follows: On the 10th of May, 1871, Eben F. Eunyan, being the owner in fee of a certain lot of ground in Chicago, Cook county, mortgaged the same to Iza H. Scribner, to secure a loan of $2000, the mortgage being filed in the proper office for record the day it was executed. On the 12th of July-following, for the consideration of $7000, Eunyan sold, and conveyed by warranty deed, the same property to Mason B. Loomis, the appellee, the latter having constructive, but no actual, knowledge of the Scribner mortgage. Loomis paid $500 cash on his purchase, and executed to Eunyan thirteen notes, of $500 each, payable at intervals of six months, the last maturing on July 12, 1878. These •notes were secured by a deed of trust on the purchased property. Loomis took possession of the premises at the time of his purchase, and occupied the same until May 1, 1875, having in the meantime paid the first six of said notes. On the day last mentioned, for the consideration of $7500, Loomis sold, and reconveyed by warranty deed, the property to Eunyan, the latter agreeing, in part payment of the consideration, to take up and surrender to Loomis the remaining seven notes, which were then outstanding in the hands of other parties, and this stipulation was set forth in the conveyance, which" was. duly recorded about the date of its execution; The" seventh and eighth notes were taken up and surrendered by Eunyan in pursuance of the stipulation in the deed. The remaining five notes had already been transferred by Eunyan to Lazarus Silverman, who subsequently transferred them, for value, to L. C. Paine Freer.
    On the 23d of June, 1876, Eunyan contracted and sold the premises in question to Silverman, but at the instance of the latter the conveyance was made to Bernhard Moos, who subsequently, on the 2d of April, 1879, by quitclaim, deed, conveyed the property to Silverman, the real purchaser. By a stipulation .in the deed from Eunyan to Moos, the grantee covenanted and agreed, as a' part of the .consideration, to take up and surrender to Loomis the remaining notes given by the latter to Eunyan on his original purchase, which were then outstanding in the hands of Freer. Silverman took up the ninth, tenth, eleventh and twelfth of these notes, as provided in the deed, on his purchase from Eunyan, but declined to surrender them to Loomis, on the ground he had been compelled to redeem from a sale under the Scribner mortgage, at an expense of $2655.91, which he claims appellee is bound to make good to him by reason of his covenant against incumbrances in his deed of reconveyance to Eunyan, as heretofore stated. Appellee denying, all liability on. account of his covenants in that deed, suits at law were commenced against him by Silverman on the four notes last mentioned, and by Freer on the thirteenth of said notes, and the present bill was filed by appellee to enjoin these suits. On the hearing, the circuit court of Cook county rendered a decree perpetually enjoining Silverman from further prosecuting his suit upon the four notes taken up by him, and directing that the same be canceled and delivered to Loomis within ten days, and that Silverman, within thirty days,‘pay the amount of the thirteenth note to Freer, arid upon such payment surrender the said note, canceled, to Loomis. From this decree Silverman appealed to the Appellate Court for the First District, where the same was affirmed, and Silverman brings the case to this court by appeal.
    Mr. Frank J. Crawford, for the appellant:
    A covenant against incumbrances runs with the land, and is available for the benefit of the heirs or assigns of the covenantee, upon whom - the burden of the incumbrance ultimately falls. 3 Washburn on Real Prop. (4th ed.) 459; Richards v. Burt, 59 Ill. 38.
    The measure of damages on such covenant is the amount of the loss, not exceeding the purchase-money. Bawle on Covenants for Title, (4th ed.) 288; •• Delavergne v. Norris, 7 Johns. 358; Braman v. Bingham, 26 N. Y. 483; Spring v. Chase, 22 Me. 505; The City v. Bissell, 46 Mo. 160; Batchelder v. Sturgis, 3 Cush. 205; Brady v. Spurck, 27 Ill. 478.
    If the covenant passes to the assignee with the land, it can not be affected by the equities existing between the original parties, any more than the title to the land itself.' Suydam v. Jones, 10 Wend. 180; Greenvault v. Davis, 4 Hill, 643; Rawle on Covenants, 351.
    There was no release here of Loomis’ covenants by Bunyan. A release must be by an instrument of equal solemnity with that containing the covenants, and recorded, in order to affect a subsequent purchaser. Bawle on Covenants, 349, 352; Rogers v. Payne, 2 Wils. 376; Susquehanna Coal Co. v. Quick, 11 P. F. Smith, (Pa.) 339.
    Mr. E. A. Otis, and Mr. Chas. H. Wood, for the appellee:
    The conveyance by Bunyan to Loomis, and the reconveyance by Loomis to Bunyan of the same premises by a like deed, operated to extinguish the covenants in the deed • of Loomis, both as against Bunyan and his grantee, Silverman. 2 Coke on Littleton, sec. 743; Shepard’s Touchstone, 201; 10 Bacon’s Abridg, (Bouvier’s ed.) 414, “Warranty Deed;” Brown v. Metz, 33 Ill. 339; 3 Washburn on Real Prop. *661; Goodell v. Burnett, 22 Wis. 565; Kellogg v. Wood, 4 Paige, 578.
    Silverman, by the covenant in the deed from Bunyan, assumed to pay and surrender up the last five notes of Loomis. That agreement is binding on him. Taylor v. Dace, 59 Pa. St. 436; Sawyer v. Weaver, 2 McArthur, D. C. 1; Lamb v. Tucker, 42 Iowa, 118; Ricard v. Sanderson, 41 N. Y. 179.
    The acceptance by the grantee of a deed conveying lands subject to a specified mortgage, and providing that he shall assume and pay the mortgage, binds him as effectually as though the deed were inter partes, and executed by both grantor and grantee. The mortgagee- may treat both the mortgagor and his grantee, under such a promise, as principal debtors, and may have a formal decree against either or both. Crawford v. Edwards, 33 Mich. 354; Snyders. Robinson, 35 Ind. 311.
    As to the mortgagor, the party who assumes the mortgage debt is the principal, and he is a surety only. Pruden v. Williams, 26 N. J. Eq. 210; Marsh v. Pike, 10 Paige, 695; Calvo v. Davis, 8 Hun, (N. Y.) 222; Jones on Mortgages, sec. 742.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Silverman, on his purchase from Bunyan, having agreed to take up and surrender to Loomis the notes sued on, it is clear he was bound to do so unless he was relieved from the performance of that undertaking by reason of having been compelled to redeem the premises from sale under the Scribner mortgage, and whether he was so relieved or not, of course depends upon whether Loomis is liable to Silverman on the covenants in the former’s deed to Bunyan, and upon the decision of this question the case depends. The circuit court held, and we think properly, that the conveyance and reconveyance of the premises between Eunyan and Loomis by operation of law- canceled or extinguished the covenants in the latter’s deed as to all incumbrances covered by Runyan’s deed to Loomis. The object of the parties in having a covenant against incumbrances inserted in appellee’s deed upon his reconveyance to Eunyan, was doubtless to assure the property to the latter in the same condition it was in when conveyed by Eunyan ■ to Loomis, and nothing more; and to give it a wider range, by extending it to matters covered by Runyan’s covenants to Loomis, would be to make the parties severally, liable to each other on account of the same incumbrance. The enforcement of this liability by legal proceedings would give rise to circuity of action, and an unnecessary and useless expenditure of money in vexatious litigation, which the law ever abhors. To avoid these consequences, the law wisely construes such covenants as mutually canceling each other, so that no action can be maintained on them by either of the parties or their assignees. The assignee of a grantee can not recover on a covenant made by the latter’s grantor, where, by reason of matters apparent upon the record of deeds in the line of his title at the time of the assignee’s purchase, the grantee himself could not recover. The assignee, in such.,case, occupies no better position than the original covenantee through whom he claims.

Silverman, having purchased with constructive notice of these two deeds, is conclusively presumed to have known and understood at the time of his purchase their legal effect, and he has no cause, therefore, to complain. The view here presented we understand to be fully sustained by well recognized legal principles. 2 Coke on Littleton, sec. 743; Brown v. Metz, 33 Ill. 339; Kellogg v. Wood, 4 Paige, 578.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    The International Bank of Chicago et al. v. Robert E. Jenkins et al.

      Filed at Ottawa September 27, 1882.

    1. Writ of error—when it lies to Appellate Court—judgment—when final. On demurrer to a plea of the Statute of Limitations filed to a writ of error in the Appellate Court, the judgment of the court is necessarily final as to the only issue tendered. If the plea is good, a final judgment dismissing the action follows, and if it is bad, the entire defence fails, and on sustaining the demurrer a judgment of reversal will be entered, which is final, although the cause.may be remanded; and a writ of error lies from this court to review such judgment when the amount involved exceeds $1000.
    2. Same—statutes construed. Section 8 of the Appellate Court act, and section 90 of the Practice act, having been enacted on the same day, and having taken effect at the same time, must be construed in pari ¿materia, and given the same effect as if both were embraced in the same act. The first named section only allows an appeal or writ of error when the order, judgment or decree is final, while section 90 allows an appeal or writ of error not only when the judgment of the Appellate Court is final, but-also when the judgment, etc., is such that no further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court.
    3. Same—is a new suit. The suing out of-a writ of error in the Appellate Court to review the proceedings in a cause in the circuit court, is the commencement of a new suit, and not the continuation of the suit below, to which it relates.
    4. Limitation—for and against assignee in bankruptcy. Under section 5057 of the United States Statutes, the limitation of two years, of suits by or against an assignee in bankruptcy is confined to cases between such assignee and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee.
    5. Same—when interest is adverse to assignee. A bank filed a bill to foreclose a mortgage given by A to B to secure certain notes, which B indorsed, and pledged to the bank as collateral security for a loan to him, and also as a security for any and all indebtedness the bank might hold against him after the payment of the loan. B, by his answer and cross-bill, set up that his indebtedness to the bank had been paid, and claimed various payments of usury, which he asked to have applied on his indebtedness, and that if so applied his entire indebtedness would be satisfied. He also prayed for an account to be taken, and for a decree for the return of the collaterals. The circuit court having found in favor of the bank, B’s assignee in bankruptcy sued out a writ of error from the Appellate Court to reverse the decree: Held, that the claim of the bank and that of B were not only adverse, but hostile, within the meaning of the United States law limiting suits by or against assignees in bankruptcy, and that the writ of- error was barred if not brought within two years from the time the cause of action accrued to the assignee.
    6. Sake—practice—how presented in Appellate Court. The bar of the Statute -of Limitations to a writ of error may be presented by motion to dismiss as well as by plea, when it appears on the face of the record that the writ is barred, and no circumstances are alleged to take the case out of the statute.
    Writ of Error to the Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
    Messrs. Rosenthal & Pence, for the plaintiffs in error:
    A writ" of error is a suit at law or in equity, within the meaning of the two years limitation in the Bankrupt law. Powell’s App. Ct. Proc. 46, 326; Ripley v. Morris, 2 Gilm. 381; Hickman v. Haines, 5 id. 20; Smith v. Robinson, 11 Ill. 119; Roberts v. Trustees, 32 id. 474; 1 Tidd’s Prac. *1196; Wadhams v. Gay, 73 Ill. 421; Union Canal Co. v. Woodside, 11 Pa. St. 176; Weston v. City Council, 2 Pet. 449; Bailey v. Glover, 21 Wall. 346.
    A"s to the proper construction to be given to sec. 5057 of the Revised Statutes of the United States, and holding the limitation therein provided applies to writs of error by an assignee in bankruptcy, see Bailey v. Glover, 21 Wall. 342; Marshall v. Knox, 16 id. 551; Cleveland v. Bocrum, 24 N. Y. 613; Wilson v. Childs, 8 Bank. Rep. 527; Coit v. Robinson, 19 Wall. 285.
    •A plea of the Statute of Limitations to a writ of error is not required when the record discloses that the time has elapsed for bringing the suit. A motion to dismiss is the proper practice in such a case. Brooks v. Morris, 11 How. 204; Bertrand v. Taylor, 87 Ill. 235; Parkhurst v. Race, 100 id. 558; Henry County v. Winnebago Drainage Co. 52 id. 454; Humbert v. Trinity Church, 7 Paige, 195; Bailey v. Glover, 21 Wall. 342.
    A plea of the Statute of Limitations in the Appellate or Supreme Court is a plea of confession and avoidance, and if overruled, the judgment is to be reversed. Page v. People, 99 Ill. 418.
    The order of the Appellate Court sustaining the demurrer to the plea of the Statute of Limitations was final, and no further proceedings upon the subject matter of the plea could be had in the circuit court, and hence a writ of error lies from this court to review such order. Baber v. Pittsburg, Cincinnati and St. Louis R. R. Co. 93 Ill. 342; O’Doivd v. Russell, 14 Wall. 402; Martin v. Hunter, 1 Wheat. 352; Holmes v. Jennison, 14 Pet. 562; Weston v. City Council, etc. 2 id. 464; Johnson v. Humboldt Ins. Co. 91 Ill. 92; Fleischman v. Walker, 91 id. 321.
    Mr. W. T. Bubgess, for the defendants in error:
    The only question made in the pleadings was, whether Walker owed the bank anything. 'He did not deny the pledge, and unless he did, there was no property right involved. Walker sought to have an account taken between him and the bank, which was denied by dismissing his bill. In this there is no “adverse interest touching any property or rights of property transferable to or vested in” the assignee. The assignee took the equity of redemption of Walker, and no more. Bump on Bankruptcy, 500, sec. 5044.
    In the cases cited by the plaintiffs in error, the title to the property was set up in bar of the right to redeem, and have no application to a case where the right to redeem is admitted. Price v. Phillips, 3 Robertson, (N. Y.) 448; Smith v.
      Crawford, 4 N. B. 38; Will v. Stickney, 15 id. 23; Sedgwick v. Casey, 4 Bank. Rep. 496; Carr v. Lord, 29 Maine, 51.
    When the complainants below, by bill in equity, asserted their right to foreclose, they necessarily thereby affirmed Walker’s right to redeem, and his assignee stands in his shoes. Locke et al. v. Caldwell, 91 Ill. 421; 1 Hilliard on Mortgages, sec. 2.
    That an appeal does not lie from, or a writ of error issue upon, the judgment of the Appellate Court upon a plea in bar of the Statute of Limitations sustaining a demurrer to the plea, and reversing and remanding the cause for further proceedings in the court below before final judgment, counsel cited the provisions of the statute,—secs. 2, 11, art. 6, of the constitution, and sec. 9, chap. 110, Bevised Statutes; Jenkins v. Greenbaum, 95 Ill. 11; Jenkins v. International Bank, 97 id. 568; Knox v. Exchange Bank, 12 Wall. 379.

       This case and three others, between substantially the same parties, numbered 19, 22 and 23, were considered together, and the opinion in this case applies to them all.

   Mr. Justice Craig

delivered the opinion of the Court:

This was a writ of error to reverse a judgment of the Appellate Court for the First District, and a motion has been made to dismiss the suit on the ground that the judgment of the Appellate Court was not final.

. The facts, so far as may be necessary to obtain a proper understanding of the question involved, are these: The International Bank of Chicago obtained a decree in a proceeding to foreclose a mortgage against Samuel J. Walker, in the circuit court of Cook county, on the 25th day of April, 1878. Walker was afterwards adjudged a bankrupt, and Jenkins appointed assignee. On the 21st day of April, 1881, the assignee, Jenkins, sued out a writ of error from the Appellate Court to the circuit court, to reverse the decree of foreclosure which had been rendered in the circuit court in 1878. The International Bank appeared in the Appellate Court and filed a plea of the United States Statute of Limitations in bar of the suit, under section 5057 of the Bankrupt act, which declares: “No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to, or vested in, such an assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not, in any case, revive a right of action barred at the time an assignee is appointed. ” To this plea the assignee filed a general demurrer, which the court sustained, and entered a judgment reversing the decree of the circuit court, and remanded the cause.

The question presented by the motion to dismiss the writ of error is, whether this is to be regarded as a final judgment, within the meaning of the statute which authorizes an appeal or writ of error to review a judgment which is final.

Section 8 of the Appellate Court act provides: “In all cases where the amount involved is less than $1000, in actions ex contractu, and the judgment is affirmed, it shall be final. ” The amount here is over $1000. It then declares : “In all other cases appeals shall lie, and writs of error may be prosecuted, from the final judgments, orders or decrees of the Appellate Courts to the Supreme Court. ”

Section 90 of the Practice act provides: “In all criminal cases, * '* * and in all other cases where the sum or value in controversy shall exceed $1000, exclusive of costs, which shall be heard in any of the Appellate Courts upon errors assigned, if the judgment of the Appellate Court be that the order, judgment or decree of the court below be affirmed, or if a final judgment or decree be rendered thereon in the Appellate Court, or if the judgment, order or decree of the Appellate Court be such that no further proceedings can be had in the court below, except to carry into effect the mandate of the Appellate Court, any party to such cause shall be permitted to remove the same to the Supreme Court by appeal or writ of error. ” As was held in Baber v. Pittsburg, Cincinnati and St. Louis R. R. Co. 93 Ill. 342, section 90 of the Practice act, and section 8 of the Appellate Court act, having been enacted by the legislature on the same day, and having taken effect at the same time, must be construed in pari materia, and given the same effect as if both were embraced in the same act. Section 8, as will be seen upon an examination of its language, only allows an appeal or writ of error when the order, judgment or decree is final, while section 90 seems to go a step further, and not only allows an appeal or writ of error when the judgment of the Appellate Court is final, but also when the judgment, order or decree of the Appellate Court be such that no' further proceedings can be had in the court below except to carry into effect the mandate of the Appellate Court.

■In order to determine whether the judgment in the Appellate Court falls within the terms of the section of the statute last quoted, it may be necessary to consider the nature of the issue tendered by the plea, and the character of the judgment rendered on that issue. The suing out of the writ of error in the Appellate Court was the- commencement of a new suit, as held in Roberts v. Fahs, 32 Ill. 474. The defendant in the suit interposed but one defence to that action—that the suit was barred by the Statute of Limitations. Now; when a demurrer was filed, of necessity there could be but one of two judgments rendered on the issue tendered, either of which would be final, so far as the issue involved was concerned. If the plea was good in law, then the writ of error would have to be dismissed. If, on the other hand, the plea was bad,—not sufficient in law,—as no other defence was interposed, the judgment or decree of the circuit court would have to be reversed—in other words, the plea confessed the error, but sought to avoid it by the operation of the Statute of Limitations.

In so far, then, as the only issue involved in the action was concerned, the judgment could not be otherwise than a final judgment. If the plea was good, a final judgment dismissing the action would be rendered; if bad, the entire defence to the action failed, and the court would render a final judgment of reversal in sustaining the demurrer. It is true the court remanded the case to the circuit court, but when it reaches that court no action whatever can be had on the issue which was decided in the Appellate Court, in so far as the Statute of Limitations is concerned, which was the sole defence in the Appellate Court. When the cause comes on for trial, the circuit court can do nothing but follow the mandate of the Appellate Court.

In Johnson v. Humboldt Ins. Co. 91 Ill. 92, where an action was brought on a policy of insurance, the insurance company interposed a plea of limitations,—that the suit was not brought within twelve months from the time the loss occurred, according to the terms and conditions of the policy. The plaintiff in the action demurred to the plea, and the Superior Court sustained the demurrer, and rendered a judgment on the policy in favor of the plaintiff. On appeal to the Appellate Court it was held that the plea presented a defence to the action, and reversed the judgment of the circuit court. The plaintiff in the action, for the purpose of reversing the decision of the Appellate Court, took an appeal to this court. The appeal was entertained, and the judgment of the Appellate Court affirmed. It is true that the jurisdiction of this court to entertain the appeal on the ground that the decision of the Appellate Court was not a final judgment, was not raised by counsel or discussed in the opinion; still the appeal was entertained by this court, and the case decided on its merits. This would not have been done had the court considered that it had no jurisdiction to entertain the appeal, as it has been the uniform practice in this court to dismiss on appeal, at any progress of the case, when it appears the court has no jurisdiction.

In the case cited there was hut one question presented in the Appellate Court for decision, viz., was the action barred. When a final decision was rendered on that question, this court entertained jurisdiction, because it regarded the judgment as one under which no further proceedings could be had in the court below, except to' carry into effect the mandate of the Appellate Court. The same principle which led to the decision in the case cited, must control in this case. Here, the Appellate Court made a final decision on the only question before it, viz., the bar of the Statute of Limitations, and no further proceedings could be had in the court below, so far as this question was concerned, except to carry into effect the mandate of the Appellate Court. The Supreme Court of the United States has had occasion to pass upon section 25 of the Judiciary act (now section 709 of the Revised Statutes of the United States), which is similar in terms, in regard to a final judgment or decree that may be reviewed on appeal or writ of error, to our own statute. And the views here expressed will be found to be fully sustained by the decisions of that court. O'Dowd v. Russell, 14 Wall. 402; Weston v. City of Charleston, 2 Pet. 464; Haines v. Fennison, 14 id. 562; Martin v. Hunter, 1 Wheat. 352. The motion to dismiss the appeal will be overruled.

As stated before, the court sustained a demurrer to the plea of the Statute of Limitations, and that decision is relied upon as error. This question involves a construction of section 5057 of the United States Statutes, which is as follows: “No suit, either at law or in equity, shall be maintainable, in any court, between an assignee in bankruptcy and a person claiming an adverse interest touching any property, or rights of property, transferable to of vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not, in any case, revive a right of action barred at the time an assignee is appointed. ” The proper construction to be placed upon this statute presents a question not free from difficulty,—one upon which courts may well disagree.

As respects the first part of the section, that is, whether a writ of error may be regarded as a suit at law or in equity, we are satisfied that the issuance of a writ of error is the commencement of a new suit. In Ripley v. Morris, 2 Gilm. 382, a motion was made to dismiss a writ of error on the ground that the plaintiff in error was a non-resident, and no bond for costs had been filed under the statute, which required a bond in all cases, in “law or equity, ” where the plaintiff was a non-resident of the State. The motion was resisted on the ground that the writ of error was a continuation of the suit commenced in the circuit court, and not a new suit. In the decision of the question the court said: “A writ of error, like a scire facias, is considered a new action, (2 Tidd’s Practice, 1141,) and the statute relative to costs requires the court to dismiss the suit whenever a non-resident commences an action, either in the circuit or Supreme Court, without filing security for the costs. ” See, also, Hickman v. Haines, 5 Gilm. 20, and Smith v. Robinson, 11 Ill. 119, where the same doctrine is announced. This question, that the writ of error was the commencement of a new action at law or in equity within the intent and meaning of the statute, we think is fully settled by the former decisions of this court, and we are fully satisfied that these decisions are in harmony with the current of authority on the question.

But it will be observed that by the terms of the section the limitation of two years is confined to cases between an assignee in bankruptcy and a person claiming an adverse interest touching any property, or rights of property, transferable to or vested in such assignee, and it is contended that the matters involved between the parties do not present a case which falls within the terms of the statute,—that there is no claim of an adverse interest. From an examination of the record, it appears that the International Bank filed a bill in equity to foreclose a trust deed executed by Henry N. Walker to secure the payment of a promissory note, payable to the order of Samuel J. Walker. This note S. J. Walker indorsed to the bank to secure three notes, of $4000 each, given for money loaned, and also made an agreement with the bank that it should hold the notes as a general collateral for any and all indebtedness the bank had against him after the payment of the three notes. Samuel J. Walker answered the bill, and set up that his indebtedness to the bank had been paid. He also set up that all his transactions with the bank were usurious. He offered to pay legal interest, and prayed that usurious interest should be applied upon his indebtedness, and if the interest was so applied, his entire indebtedness would be satisfied and paid. He asked that an account be taken, and that a decree be rendered for the return of the collaterals held by the bank. He also filed a cross-bill, in which he set up the same matters, and prayed that he might redeem the securities held by the bank. ■ A decree was rendered which found the amount due on the collateral notes to be $23,116.66, amount due on the three principal notes, $17,092.86, and the amount due on the entire indebtedness from S. J. Walker to the bank, $172,474. The decree directed a foreclosure, and sale of the property, and the proceeds applied first in the payment of the principal indebtedness for which they were pledged, and the residue on the general indebtedness due from Walker to the bank.

It will be observed that the notes and mortgage which the bank filed the bill to foreclose were executed by Henry N. Walker, and they were held as collateral security for a debt of Samuel J. Walker. The bank claimed to own these collaterals, and the right to foreclose the mortgage, while on the other hand the assignee of Samuel J. Walker claims that the indebtedness of Samuel J. Walker has been paid to the bank, and that it has no right to hold the collaterals or foreclose the same¿ but they ought to be surrendered. Is not this claim set up by these parties adverse, within the meaning of the statute? We are of. opinion that it is not only adverse, but hostile in its nature. Each of the contending parties asserts title to this property,—one claiming the right to foreclose and appropriate the proceeds of the foreclosure to his own use, the other that it should be delivered to him as owner thereof, to be used in such manner as he may deem proper. Where a person takes possession of a tract of land, claiming to be the owner, although he may in fact have no title, his possession is regarded as adverse to all the world, and if he occupies the land for a prescribed period, his possession will ripen into an absolute title. Upon the same principle, where a person is in possession of any other species of property; claiming to be the owner, his title will be regarded as adverse. The whole controversy in the case by Walker and his assignee is, that the title of the bank to the notes and mortgage has terminated,—that the bank in fact has no title to the securities, and they should be surrendered up to them as owners thereof,—and we perceive no ground upon which it can be held that this is not a suit between an assignee and a person claiming an adverse interest touching property or rights of property. . The object of the statute doubtless was to require a speedy settlement of a bankrupt estate, and thus prevent the assets from being wasted in costs, and long, tedious litigation.

In Bailey v. Glover, 21 Wall. 342, the Supreme Court of the United States, in discussing this section of the statute and its policy, after referring to the evil consequences likely to flow, which might protract litigation by an assignee, said: “To prevent this as much as possible, Congress has said to the assignee, you shall commence no suit two years after the cause of action has accrued to you, nor shall you be harassed by suits when the cause of action has accrued more than two years against you. Within.that time the estate ought to be settled up and your functions discharged, and we close the door to all litigation not commenced before it has elapsed. ”

In Cleveland v. Borem, 24 N. Y. 613, the Statute of Limitations in the Bankrupt act of 1841, which does not differ from the present act, came before the court for consideration, and in the discussion of the question the court said, per Sutherland, J.: “In my opinion the two years’ limitation by section 8 of the Bankrupt act (Acts of Congress, 1841, 5 Stat. at Large, p. 446,) is a bar to this action. It is provided by section 8 that ‘no suit at law or in equity shall, in any case, be maintained by or against such assignee, or by or against any person claiming an adverse interest touching the property and rights of property aforesaid (the property of the bankrupt vested in the assignee by the decree), in any court whatsoever, unless the same shall be brought within two years after the declaration and decree of bankruptcy, or after the cause of suit shall have accrued.’ I think the interest or claim of the mortgagees touching the mortgaged property, under the mortgage, was adverse to the legal title and interest in- the property vested in Waddell, the assignee, by the declarations and decrees of bankruptcy, within the meaning of this provision. The mortgage was due, and was a charge or lien on the legal title or interest vested in the assignee by the decrees of bankruptcy; and although possession under the mortgage before foreclosure and sale would not have been adverse to the mortgagors or those claiming under them, yet I think the interest of the mortgagees was an adverse interest touching the mortgaged property at the time of the making of the decrees of bankruptcy, within the meaning of the 8th section of the act above quoted. I think the interest of the mortgagees may be said to have been an adverse interest touching the property to the extent of the amount due on the mortgage, for there was no right of redemption without paying, or offering to pay, the amount due on the mortgage. ” This decision, although rendered by a State court, was referred' to with approval in Gifford v. Holmes, 98 U. S. 252.

From what has been said it follows that the decision of the Appellate Court in the two cases, docket Nos. 16 and 23, in which pleas were filed, will have to be reversed.

In two eases (docket Nos. 19 and 22) no plea was filed, but a motion was made in the Appellate Court to dismiss the writs of error, on the ground that it appeared, on the face of the record that the writs were not sued out within two years. In the Supreme Court of the United States the uniform practice has been to dismiss on motion, where it appears on the face of the record that the suit is barred. (Brooks v. Noris, 11 How. 204.) The English practice required a plea setting up the statute, but we perceive no good reason why the bar of the Statute of Limitations may not be presented by motion to dismiss as well as by plea, where it appears on the face of the record-that the suit is barred, and no circumstances are alleged to take the case out of the statute. Henry County v. Winnebago Drainage Co. 52 Ill. 456.

The decision of the Appellate Court will therefore, in Nos. 16, 19, 22 and 23, be reversed, and the causes will be remanded.

Judgment reversed.

Mr. Chief Justice Scott, dissenting.


text:
    The People ex rel. Elizabeth A. Davis v. William W. Foster.

      Filed at Ottawa September 27,1882.

    1. Habeas corpus—not allowed to correct mere errors. A party committed to jail, by a court having jurisdiction, until a fine imposed on a conviction for an offence and the costs of the prosecution are paid, is not entitled to a discharge on habeas corpus, on the ground the court erroneously refused to discharge him under section 455 of the Criminal Code, and erroneously refused to admit proper evidence on his application for such discharge.
    2. ■ A writ of habeas corpus does not lie from this court to review a decision of a court having competent jurisdiction to act and decide, for the purpose of correcting merely an alleged error in the ruling of the inferior court. The order of such court, however erroneous it may be, if it had jurisdiction, can not be set aside or reversed on an application for a discharge under the Habeas Corpus act. In such application this court can only act when the court below has proceeded without or has exceeded its jurisdiction.
    3. Same—grounds of discharge when applicant is detained under legal process. Under the statute a person imprisoned or detained by virtue of legal process can be discharged on habeas corpus only on some one or more of the grounds enumerated in section 22 of the act, and no court or judge, on the return of the writ, can in any other matter inquire into the legality or justice of a judgment or decree of a court legally constituted.
    This is an original application by the relator in this court to be discharged from imprisonment in the jail of Macon county. The grounds relied on 'for the discharge are sufficiently -stated in the opinion.
    Mr. D. Hutchison, and Mr. J. 0. Buckingham, for the relator.
    Mr. W. 0. Johns, for the respondent.
   Mr. Justice Mulkey

delivered the opinion of the Court:

- This is a .proceeding under the. Habeas Corpus act. It appears from the papers before us, upon which the case is submitted for our determination, that at the December term, 1881, of the Macon county circuit court, the petitioner, Elizabeth A. Davis, was tried and convicted on three several indictments, for the respective offences of selling intoxicating liquors, maintaining a nuisance, and keeping a house of .ill-fame; that on failure to pay the" fines assessed by the court in these several eases, which amounted in the aggregate to about $2500, the petitioner, by order of the court, was committed to the county jail, there to remain until the fines and costs were paid; that several executions were sued out on these judgments, one of which was returned satisfied by sale of real estate belonging to petitioner, and the others were levied upon lands the title of which appears to be in third parties, but which lands, it is claimed, are in truth and in fact the property of the petitioner, and that they were conveyed by her to such third parties for the express purpose of preventing the collection of these judgments; that although the return day of said executions has long since passed, no return of the same has ever been made by the sheriff; that upon the levy of these executions a creditor’s bill, on behalf of the People, was filed in the Macon county circuit court, for the purpose of subjecting the lands so levied upon to the payment of said judgments and costs, and that said hill is still pending and undetermined.

It further appears, that after the above proceedings had transpired, and before suing out the present writ, the petitioner made application to the circuit court of Macon county to be discharged from her imprisonment, under the 455th section of the Criminal Code. That section is as follows: “Whenever it shall be made satisfactorily to appear to the court, after all legal means have been exhausted, that any person who is confined in jail for any fine, or costs of prosecution, for any criminal offence, hath no estate wherewith to pay such fine and costs, or costs only, it shall be the duty of said court to discharge such person from further imprisonment for such fine and costs, which shall operate as a compíete release of such fine and costs: Provided, that nothing herein shall authorize any person to be discharged from imprisonment before the expiration of the time for which he may be sentenced to be imprisoned as part of his punishment. ”

Upon the hearing of the above application, the petitioner, as she alleges in her petition, “offered to show to said court that she had no estate wherewith to pay said fine and costs, or costs only; but because said sheriff had not returned said executions she was not permitted to make proof of her inability to pay said fine and costs, or costs only, and thereupon said circuit court overruled and denied her said application. ” The petitioner now asks to be discharged from her imprisonment on substantially the same grounds which were deemed insufficient upon her previous application to the circuit court of Macon county, the only difference being that in the present application she complains of an alleged erroneous ruling of that court in refusing to permit her to make proof of her inability to pay the fines and costs in question.

To allow this application would be simply tó review, upon habeas corpus, the decision of that court, for the purpose of correcting merely an alleged error, which we are not permitted to do. It is, therefore, unimportant to inquire whether the ruling of the circuit court in rejecting petitioner’s evidence was proper or improper; for, conceding it was erroneous, this is not a proceeding in which we are authorized to correct it. It is clear that court had jurisdiction both of the subject matter of the suit and of the parties before it, and hence the order in the case, however erroneous, can not be set aside or reversed on an application of this kind. In this proceeding we can only act when the court has acted without or exceeded its jurisdiction. It is not pretended that such is the case here. Hurd on Habeas Corpus, (2d ed.) p. 327; Hammond v. The People, 32 Ill. 446.

The third section of the Habeas Corpus act requires the petition to set forth the cause or pretense of the imprisonment complained of, and to show that the petitioner “is not committed or detained by virtue of any process, judgment, decree or execution specified in section 21 of the act. ” The latter section provides, that “no person shall be discharged under the provisions of the act if he is in custody * * * by virtue of a final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such j udgment or decree, unless the time during which such party may be legally detained has expired. ”

The 22d section specifically enumerates the cases in which one detained by virtue of legal process may be discharged upon writ of habeas corpus. They are as follows: “First, where the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum, or person; second, where, though the original imprisonment was lawful, yet by some act, omission or event, which has subsequently taken place, the party has become entitled to bis discharge; third, where the process is defective in some substantial form required by law; fourth, where the process, though in proper form, has been issued in a case or under circumstances where the law does not allow process or orders for imprisonment or arrest to issue; fifth, where, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him; sixth, where the process appears to have been obtained through false pretense or bribery; seventh, where there is no general law, or any judgment, order or decree of a court, to authorize the process, if in a civil suit, or any conviction, if in a criminal proceeding. ” And it is expressly provided in the same section, that “no court or judge, on the return of a habeas corpus, shall in any other matter inquire into the legality or justice of a judgment or decree of a court legally constituted. ”

It is clear, from a bare inspection of these provisions of the statute, the petitioner has failed to bring herself within either of them, and hence this court has no power or authority, on habeas corpus, to discharge her from imprisonment. Her application is therefore denied, and she is remanded to the custody of the sheriff of Macon county, to be held by him in conformity with the orders of the circuit court of said county until she is discharged by law.

Application denied.