text:
    Samuel M. Hitt, impleaded, &c., Appellant, v. Aaron Q. Allen, Appellee.
    APPEAL FROM WINNEBAGO.
    All objections to the jurisdiction, arising out of a defective certificate of proceedings, in cases of change of venue, will be considered as waived, if the parties proceed to trial without having taken exception.
    The statute requisition, that all the parties shall join in an application for a change of venue, extends only to such of them as have a trial pending, defendants in default, need not join in the application; the whole cause will be removed and final judgment will be rendered for or against all in the court to which the cause is taken. -
    A defendant who has tendered an issue, and has waived his right to object to the change of venue, cannot insist that the change was irregular as to a co-defendant who is in default.
    {Admissions by one of several partners, or one of several having a joint interest, if made while the partnership or joint interest existed, are evidence against the others. Such admissions, if made after dissolution, are sometimes evidence as to copartners, but as a general rule they are not evidence against those who had a joint interest which has ceased to exist.
    Interest in actions purely ex contractu, and where there is nothing tortious in the character of the indebtedness, can only be recovered in the cases specified in the statute, or where there has been an express promise to pay interest, or where such a promise can be inferred from circumstances, or from the particular mode of dealing between the parties, or the usage of trade in which they dealt.
    Interest does not run upon money due upon a parol contract, unless the debtor has caused unreasonable and vexatious delay in payment, by throwing obstacles in the way of collection, or by his using circumvention and management, to induce his creditor to prolong the collection of his debt.
    Interest is allowed on money due by contract in writing, or on money due on the settlement of accounts.
    This cause was heard before Henderson, Judge, and a jury, at the December term, 1850, of the Winnebago Circuit Court, on a change of venue from the county of Ogle, and resulted in a verdict and judgment for the appellee.
    Hitt, one of the defendants below, brought the cause to this court by appeal.
    The pleadings and facts of the case are sufficiently stated in the opinion of the court.
    W. H. L. Wallace and T. L. Dickey, for appellant.
    B. C. Cook, for appellee.
   Trumbull, J.

This was an action of debt, commenced in 1847, in the Ogle Circuit Court, by Allen against Hitt and Swingley, to recover for services rendered by him as a schoolteacher, in the years 1838, 1839.

The declaration contained the common counts for work and labor, materials furnished, money lent, &c.

Both defendants were served with process. Hitt alone pleaded to the action, and judgment, by default, was entered against Swingley.

Subsequently, in pursuance of an agreement between Allen and Hitt, the venue was changed to the county of Winnebago, where a trial was had and judgment rendered against both the defendants, for the sum of two hundred dollars debt, and the sum of one hundred and thirty-six dollars and twenty-three and one third cents, in damages, for the detention thereof.

Numerous errors have been assigned upon this record; and, among others, it is insisted that the Circuit Court of Winnebago county had not jurisdiction of the cause, the record of the proceedings in Ogle county not being properly certified by the clerk of that court.

It is clear that Hitt has waived all objections of this kind, by going to trial without objection in the Winnebago Circuit Court. It is declared by statute, that “ 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.” Rev. St. ch. 105, § 15; Gardner v. The People, 3 Scam. 87. But the judgment in this case is a joint judgment against both the defendants; and if the Circuit Court of Winnebago county had no authority to enter it against Swingley, it is erroneous as to both defendants.

Whether the Circuit Court had authority to change the venue, on the application or by the consent of Hitt above, after the entry of the default against Swingley, depends upon the proper construction of section seven of the statute before referred to. That section declares, “ In civil causes, wherein there are two dr more plaintiffs or defendants, a change of venue shall not be granted unless the application is made by or with the consent of all the parties, plaintiffs or defendants, as the case may be.” After judgment by default against one of several defendants, on a joint obligation or undertaking, such party has admitted the cause of action ; and, as to him, there is nothing to try, though final judgment cannot be rendered against him till the issues tendered by his co-defendant are disposed of, and then only for the amount which shall be found due from such contesting defendant. The jury, impanelled to try the issues in such a case, should also be sworn at the same time, to assess the damages as to both the defendants, and then a joint judgment is entered against both for the same amount. Wight v. Merideth, 4 Scam. 360.

After judgment by default against a defendant, there is strictly no trial to be had as to him, and it is only in cases where a party can state on oath that he fears he will not receive a fair trial in the court where the cause is pending, that he is entitled to a change of venue. Unless, therefore, the defendant contesting the suit can obtain a change of venue on his own application where his co-defendant has been defaulted, it is clear that he cannot have the change at all, because his co-defendant is not in a position to join with him in the application.

The statute requiring all the parties to join in an application for a change of venue must therefore be understood, when the application is made by the defendants, as applying only to those defendants between whom and the plaintiff a cause is pending wherein a trial is to be had, and when a change of venue is awarded under such circumstances, the whole cause is removed, and final judgment must be entered against or in favor of all the defendants, as the case may be, in the court to which the cause is taken. No final judgment can be entered against the defaulted defendant unless one is obtained against his co-defendant litigating the suit, and the venue as to the former is an incident to, and necessarily goes along with, the case to the county where the trial between the contesting parties is to be had. It follows, if the defendant tendering issues has waived his right to object to the change of venue as he has in this case, he cannot insist that it was irregular as to his co-defendant, since the venue must necessarily be the same as to both, and that of the defaulted defendant follows the cause wherever the issues are to be tried and the final judgment entered.

There are two other errors assigned which it becomes necessary to notice. One arising out of the admissions in evidence of the declarations of Swingley, and the other out of one of the instructions given to the jury on behalf of the plaintiff.

, The rule in reference to admissions by one of several partners, or others having a joint interest in a particular subject, is this, that such admissions, in respect of that subject-matter, made while the partnership or joint interest existed, are evidence against the rest. 2 Starkie’s Evidence, 25.

For some purposes the admissions of one copartner, after the dissolution of the copartnership, are evidence to bind the other partner, but as a general rule admissions made by one of several having had a joint or a community of interest, after such interest has ceased, are not evidence to charge the others.

In this case the employment of the plaintiff by both the defendants jointly being first established to the satisfaction of the court, the declarations made by Swingley in respect to such employment, while it continued are admissible in evidence against Hitt, but admissions made by Swingley subsequently and after the employment of the plaintiff had ceased are not admissible against him.

It has. been strenuously insisted that the admissions of Swingley even to this extent are inadmissible. A moment’s consideration will show that this position cannot be maintained. The evidence irrespective of any admissions proved to have been made by Swingley, shows that the defendants jointly employed the plaintiff to teach a school at a salary of $400 a year. Now supposing the plaintiff had failed to comply with his engagement, can there be any doubt that he would have been liable to both the defendants jointly for the breach of the contract, and that the damages which they could have recovered would have gone to them equally ? Again suppose the tuition received from those attending the school exceeded the salary paid the plaintiff, would not the defendants equally have been the gainers thereby, and if the tuition fell short of that amount, was it not their loss? Can there be any question then, that they had a joint interest in the employment of the plaintiff and in the school taught by him, and having such an interest the law is too well settled to require discussion, that the admissions of either party, made while such joint interest existed in reference thereto, are admissible in evidence to charge the other.

The instruction objected to, and which it is important to notice, reads as follows: “ If the jury believe, from the evidence, that there was a particular sum due from the defendants to the plaintiff, by the terms of a contract between them, on the fourth day of June, 1839, then the plaintiff is entitled to interest on such sum from that time, or on whatever balance the jury shall find after deducting payments.” It has been decided, at the present term, in the case of Sammis v. Clark, ante, 544, that interest in actions purely ex contractu and where there is nothing tortious in the character of the indebtedness, can only be recovered in this State in the cases specified in the statute, or where there has been an express promise to pay interest, or such a promise can be inferred from the circumstances, the particular mode of dealing adopted by the parties, or the usage of the trade in which they dealt.

That there was any express agreement in this case to pay interest, or any thing from wThich such an agreement could be inferred, is not pretended; nor is the instruction based upon any such hypothesis. It simply asserts that if, on a certain day, a particular sum was due from the defendants to the plaintiff, by the terms of a contract between them, then the plaintiff is entitled to interest from that day. The statute, however, does not allow interest on money after it becomes due by the terms of a contract, unless such contract is in writing, or unless the money is due on the settlement of accounts between the parties, neither of which need have been the case to entitle the plaintiff to interest according to the terms of the instruction. If any thing was shown to be due in this case, it became so by virtue of the terms of a parol contract, and upon money thus due interest does not run, unless there has been an unreasonable and vexatious delay of payment, which is not made the ground on which the plaintiff is entitled to interest by the instruction, and if it were, there is no evidence in the record to show any thing more than mere delay to make the payment, which was held, in the case of Sammis v. Clark, before referred to, not sufficient of itself to authorize a recovery of interest under this clause of the statute. To make the delay both unreasonable and vexatious, the debtor must in some way have thrown obstacles in the way of the collection of the demand, or, by some circumvention or management of his own, have induced the creditor to prolong taking proceedings to collect the debt longer than he would otherwise have done.

Judgment reversed and cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Catón, J.

license: Public Domain

text:
    Asa B. Searls, Plaintiff in Error, v. The People, Defendants in Error.
    ERROR TO LEE.
    In order to constitute the crime of fornication, the parties must dwell together openly and notoriously, in illicit intimacy.
    Circumstances to raise the presumption of unlawful intimacy, should amount to enough to produce a belief or conviction of the judgment, that the parties have been cohabiting.
    Searls was convicted in the Lee Circuit Court, Wilkinson, Judge, presiding, of the crime of fornication. The trial was had at March term, 1852.
    The errors upon which the judgment is reversed are stated in the opinion of the court.
    H. G. Cotton, for plaintiff in error.
    B. C. Cook, for the people.
   Catón, J.

Searls and Amanda Hedley were indicted for living together in an open state of fornication. Searls alone was tried. On the trial, the court, at the request of the State’s attorney, gave to the jury the following instructions: “ That the offence with which the defendant is charged in this prosecution is legally and sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy; that in order to constitute this offence, even one act of sexual intercourse need not be proved by positive testimony, but that the offence is sufficiently proved by any circumstances which raise the presumption of unlawful intimacy, and sexual and adulterous intercourse.”

It does not clearly appear that the giving of the first instruction was excepted to, but as to the second there is no doubt. To this, therefore, we shall confine ourselves. It was unquestionably erroneous. In order to constitute-this crime, the parties must dwell together openly and notoriously, upon terms as if' the conjugal relation existed between them. In other words, they must cohabit together. There must be an habitual illicit intercourse between them. The object of the statute was to prohibit the public scandal and disgrace of the living together of persons of opposite sexes notoriously in illicit intimacy, which outrages public decency, having a demoralizing and debasing influence upon society. They may indeed live together in the same family, but if apparently chaste, regularly occupying separate apartments, a single instance of illicit intercourse surely would not constitute the crime of living together in an open state of fornication. And yet, if this instruction were law, the jury were authorized to convict the defendant under such a state of facts. They were told that the offence were sufficiently proved by any circumstances which raise the presumption of unlawful intimacy, and sexual and adulterous intercourse. This was made out, if but a single delinquency were proved, even though the parties did not live together at all. From the very nature of the case, the offence must generally be proved by circumstances, and the statute provides that it “shall be sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy; ” but this presumption must be something more than a mere suspicion. It must amount to a reasonable belief or conviction of the judgment, not only of unlawful intimacy, but also of cohabitation. This measure of proof was not required by this instruction, and in giving it the court erred. The judgment must be reversed.

Judgment reversed.


author: Treat, C. J.

text:
    John L. Burst, Appellant, v. Harley Wayne, Appellee.
    APPEAL FROM McHENRY.
    It is too late, after verdict, to take advantage of an omission to claim a specific sum in damages at the conclusion of a declaration, where the body of the count shows that the plaintiff claimed damages to an amount exceeding the verdict.
    This cause was heard before Wilson, Judge, and a jury, at September term, 1851, of the McHenry Circuit Court, and resulted in a verdict and judgment for the appellee.
    The facts of the case are stated in the opinion.
    T. L. Dickey and C. McClure, for appellant.
    Church & Willard and Glover & Cook, for appellee.
   Treat, C. J.

This was an action of assumpsit brought by Wayne against Burst in July, 1850. A demurrer was sustained to the first count of the declaration; and the defendant pleaded non assumpsit to the second and third counts. A trial resulted in a verdict and judgment in favor of the plaintiff for $382.60. The defendant prosecuted an appeal to this court; and he has assigned for error that the declaration does not support the judgment. The second count, after setting out an agreement between the parties, and alleging a non-performance thereof on the part of the defendant, and averring that the plaintiff has sustained damages by reason of the premises to the amount of $1,200, concludes, “ to the damage of the said plaintiff of twelve hundred , and therefore he brings suit.” The third count alleges that the defendant, on the 1st day of September, 1850, was indebted to the plaintiff in the sum of $1,200, for work and labor before that time performed, and, being so indebted, promised to pay, &c. There is no ad damnum at the end of the declaration. The only objection taken to the third count is, that no specific sum in damages is claimed thereby. In our opinion this count is amply sufficient to sustain the judgment. The omission in question might perhaps have been a cause of demurrer in the court below, but it is too late to take advantage of it in this court. It is one of those defects that are cured by verdict. The body of the count shows that the plaintiff claimed damages to an amount far exceeding -the verdict. The case of Peltier v. Britton, (4 Blackf. 502,) is an authority in point. In that case, the amount of damages claimed by the plaintiff was left blank in the declaration. On error, thejudgment was affirmed. The court said: “ With regard to the omission to lay the amount of the damages in the conclusion of the declaration, it may be sufficient to say, that from the writ and declaration it appears that the sum sued for exceeds the amount assessed by the jury. The sum being right in other parts of the record, the omission is cured by the statute; and it is too late after inquisition to take advantage of it.” It will not be necessary to inquire as to the sufficiency of the third count. The jury were authorized to assess the damages on the second count; and after verdict, if necessary to sustain the judgment, it should be intended that they did so assess them.

The judgment is affirmed.

Judgment affirmed.


text:
    Roswell E. Goodell, Plaintiff in Error, v. Charles D. Townsend, Defendant in Error.
    ERROR TO LA SALLE.
    The sheriff in whose custody a prisoner may he at the time of his conviction, if the prisoner is sentenced to the penitentiary, is required to discharge the duty of, and is entitled to the compensation allowed for, conveying the prisoner to the penitentiary.
    This cause was submitted, by agreement of parties, to Wilson, Judge, presiding, in the La Salle Circuit Court, at a special term held in June, 1852.
    The facts of the case are stated in the opinion.

      T. L. Dickey and W. H. L. Wallace, for plaintiff.
    Glover & Cook, for defendant.
   Treat, C. J.

Cummings was indicted in the county of La Salle for the crime of larceny. The venue was changed to the county of Kendall, where he was convicted and sentenced to the penitentiary. The sheriff of Kendall county conveyed the prisoner to the penitentiary, and received from the State $78.46 for performing the service. The sheriff of La Salle county then brought an action of assumpsit against him, claiming to recover this amount as so much money had and received to his use. On this state of facts, the Circuit Court entered a judgment in favor of the defendant.

The decision was clearly right. The statute declares, that “it shall be the duty of the sheriff of the county where the conviction was had, to employ a sufficient force to guard all convicts to the penitentiary; and the sheriff shall be responsible for the safe delivery of such convicts.” Rev. St. ch. 81, § 36. This provision expressly imposes the duty on the sheriff of the county in which the accused is convicted, and it clearly follows that he is entitled to the compensation given by the statute for performing it. The fourteenth section of ch. 105, Rev. St., does not embrace this case. That section only applies to cases where the prisoner is to be punished by imprisonment in the county jail. In those cases, the ■county in which the offence was committed is responsible for the expense of keeping the prisoner, and he is therefore remanded into the custody of the sheriff of such county. But the charges for conveying a prisoner to the penitentiary are borne by the State; and the sheriff, in whose custody he may be at the time of conviction, is required to discharge the duty, and is consequently entitled to the compensation.

Thé judgment is affirmed.

Judgment affirmed.


text:
    Erastus Tefft, impleaded, &c., Appellant, v. Frederick Ashbaugh, Appellee.
    ERROR TO BARE.
    Where the evidence clearly fails to make out a case for the plaintiff, the defendant has the right to ask the court to instruct the jury to find for him, and it is error to refuse such an instruction.
    An officer will be protected in the proper execution of process, unless it appears on its face that it was issued by a court not having jurisdiction of the person, or unless he had notice in some other way, that the process was issued without authority of law.
    This cause was heard before Wilson, Judge, and a jury, at May term, 1852, of the Kane Circuit. Court.
    The facts of the case will be found in the opinion of the court. Tefft appealed.
    S. Wilcox and B. C. Cook, for appellant.
    T. L. Dickey, for appellee.
   Treat, C. J.

This was an action of trespass, for false imprisonment, brought by Ashbaugh against Tefft, Heath, and Vining. The latter was not served with process. The other defendants filed a plea of not guilty, and also a special plea of justification. On the trial, the plaintiff proved by the jailer of the county, that he received the plaintiff from Heath, and retained him in custody for six or eight days, when he was discharged on habeas corpus; that Heath was at the time a constable, and held the plaintiff under a writ of capias ad satisfaciendum; that witness subsequently had a conversation with Tefft, in which the latter said he was absent in New York when the plaintiff was arrested; that Baird had caused the arrest to be made, and had sent witness five dollars to pay the board of plaintiff while in jail; that witness afterwards accounted to Tefft for the five dollars, and Baud was a" clerk in Tefft’s store. The plaintiff also proved that the services of the attorney who procured his discharge on habeas corpus were worth $25, and closed his case. The defendants then asked the court to instruct the jury, that the plaintiff had failed to adduce sufficient evidence to sustain his action, and it was their duty to find the defendants not guilty. The court refused to give the instruction, and the defendants excepted. The jury returned a verdict against Tefft for $73.75, and the plaintiff had judgment thereon.

On the evidence adduced by the plaintiff, the court should have instructed the jury to find for the defendants. The evidence was not sufficient to justify a verdict against either of the defendants. It appeared that Heath arrested the plaintiff by virtue of a capias ad satisfaciendum, and placed him in the custody of the jailer. This proof showed, prima facie, that he was acting within the limits of his official duty. The writ protected him, unless it appeared on its face that it was issued by a court having no jurisdiction of the person of the plaintiff, or unless he had notice in some other way that it was issued without authority of law. Barnes v. Barber, 1 Gilm. 401. The presumption was in favor of the validity of the process, and the jury, from the evidence before them, had no right to conclude that it illegally issued. The evidence did not tend to prove that Tefft was in any degree responsible for the imprisonment of the plaintiff. The only proof against him consisted of his declaration, that he was absent from the country when the arrest was made, and that it was caused by a clerk in his store. It by no means followed, from this statement, that the plaintiff was arrested under his direction, or by his authority or consent. It did not even appear that the writ issued in a case to which he was a party, or in which he had the slightest interest. ■ The inference was that it issued on a judgment in favor of Baird, rather than on one in favor of Tefft. Before resting his case, the plaintiff should have proved that the arrest was unlawful, and have connected Tefft with it in some way, either by showing that he was plaintiff in the judgment, or that he had incited or aided in the arrest. Under our practice, when the plaintiff has gone through with his evidence, the defendant cannot call upon the court to nonsuit the plaintiff; but where the evidence clearly fails to made out the plaintiff’s case, the defendant has the right to ask the court to instruct the jury to find for him, and it is error to refuse such an instruction.

The judgment is reversed, and the cause remanded.

Judgment reversed.


text:
    David Kelley, Appellant, v. Moses Hemmingway, Appellee.
    APPEAL PROM DU PAGE.
    A note made payable to a person “when he is twenty-one years old,” is not a promissory note, and negotiable nnder our statute.
    This cause was tried by Henderson, Judge, without thé in- . tervention of a jury, at the special term in June, 1851, of the Du Page Circuit Court, and resulted in a judgment for Hemming-way, the assignee of the note for the sum of $75.73 damage^ and costs. Thereupon Kelley appealed to this court.
    The facts of the case are stated in the opinion.
    Farnsworth and Ferguson and T. L. Dickey, for appellant.
    Glover 5c Cooic, for appellee.
   Treat, C. J.

This was an action brought by Hemmingway against Kelley before a justice of the peace, and taken by appeal to the Circuit Court. On the trial, in the latter court, the plaintiff offered in evidence an instrument in these words: —

“ Castleton, April 27th, 1844.

“ Due Henry D. Kelley fifty-three dollars when he is twenty-one years old, with interest.. David Kelley.”

On the back of which was this indorsement:

“ Rockton, May the 21st, 1849. “ Signed the within, payable to Moses Hemmingway.

“Henry Kelley.”

The plaintiff proved that the payee became of age in August, 1849. The defendant objected to the introduction of the instrument, because it was not negotiable, but the court admitted it in evidence, and rendered judgment for the plaintiff.

Our statute makes promissory notes assignable by indorsement in writing, so as absolutely to vest the legal interest in the assignee. Was the instrument in question a promissory note? /To constitute a promissory note, the money must be certainly payable, not dependent on any contingency, either as to event, or the fund out of which payment is to be made, or the parties by or to whom payment is to be made, f If the terms of an instrument leave it uncertain whether the money will ever become payable, it cannot be considered as a promissory note. Chitty on Bills, 134. Thus, a promise in writing to pay a sum of money when a particular person shall be married, is not a promissory note, because it is not certain that he will ever be married. Pearson v. Ganet, 4 Mod. 242; Beardesley v. Baldwin, 2 Strange, 1151. So of a promise to pay when a particular ship shall return from sea, for it is not certain that she will ever return. Palmer v. Pratt, 2 Bing. 185; Coolidge v. Ruggles, 15 Mass. 387. In all such cases, the promise is to pay on a contingency that may never happen. But if the event on which the money is to become payable nipst inevitably take place, it is a matter of no importance how long the payment may be suspended. A promise to pay a sum of money on the death of a particular individual, is a good promissory note, for the event on which the payment is made to depend will certainly transpire. Colehan v. Cooke, Willes, 393; S. C. 2 Strange, 1217.

In this case, the payment was to be made when the payee should attain his majority — an event that might or might not take place. The contingency might never happen, and therefore the money was not certainly and at all events payable. The instrument lacked one of the essential ingredients of a promissory note, and consequently was not negotiable under the statute. The fact that the payee lived till he was twenty-one years of age makes no difference. It was not a promissory note when made, and it could not become such by matter ex post facto. The plaintiff has not the legal title to the instrument. If it presents a cause of action against the maker, the suit must be brought in the name of the payee. The case of Goss v. Nelson, (1 Burr. 226,) is clearly distinguishable from the present. There, the note was made payable to an infant when he should arrive at age, and the day when that was to be was specified. The court held the instrument to be a good promissory note, but expressly on the ground that the money was at all events payable on the day named, whether the payee should live till that time, or die in the interim; and it was distinctly intimated, that the case would be very different had the day not been stated in the note. It tyas regarded as an absolute promise to pay on the day specified, and no effect was given to the words that the payee would then become of age.

The judgment must be reversed. Judgment reversed.


text:
    Charles B. Wells, Appellant, v. Angus McCullock et al., Appellees.
    APPEAL PROM KANE.
    An acquittal, or other legal discharge of a party indicted under the criminal code, absolves him from the payment of all costs.
    This was an appeal from the decision of the Circuit Court of Kane county, made by T. L. Dickey, Judge, at November term, 1850, upon a motion to quash a fee-bill issued by the appellant, who was clerk of the Circuit Court, against appellees, who had been indicted, tried, and acquitted for malicious mischief.
    The indictment was found in the Kane Circuit Court, and taken by change of venue to McHenry county.
    The fee-bill was issued for fees due to the clerk of the Kane Circuit Court. The fee-bill was levied by the sheriff of Kane county after thirty days’ demand, on certain land which was sold and purchased by the clerk of the court, the present appellant. After the sale of the land, the defendants in the indictment not having paid the fee-bill, nor replevied the same under the statute, made their motion to quash the fee-bill, because there was no judgment, because they were not liable, and’ because the clerk had not authority to issue a fee-bill against them. The Circuit Court sustained the motion to quash; which is the error assigned by Wells, who brings this appeal.
    Glover & Cook, for appellant.
    Champlin & Wallace, for appellees. •
   Catón, J.

The single question in this case is, whether a party who is indicted, under the criminal code, and" is acquitted upon trial, is liable for costs which he has made in his defence. We think the statute has exempted him from the payment of such costs. In the eighth section of ch. 41, Rev. St., this provision is found: “And in all criminal cases where the defendant shall be acquitted, or otherwise legally discharged without payment of costs, the clerk shall receive such compensation as the county commissioners shall order, not exceeding thirty dollars per annum.” In connection with this statute, it may be proper to refer to the ninth section of the thirteenth article of the new Constitution, which, so far as I shall quote, was substantially copied from the ninth section of the eighth article of the old Constitution which was in force at the time this law, and one I shall hereafter refer to, were passed. It is as follows: “ That in all criminal prosecutions the accused hath a right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face ; to have compulsory process to compel the attendance of witnesses in his favor,” &c. The design of this provision of the Constitution was to secure to every one prosecuted for a crime every just facility for a fair trial, and that he should have the means of making his defence, whether he was able to pay for it or not; and to withhold from him compulsory process to compel the attendance of his witnesses, until he had paid for such process, would be a manifest violation of this provision, which, with the one hereafter referred to, by a reasonable construction also secure to him the right to have such process served and obeyed upon the same terms. The legislature, in the same spirit of justice and liberality which prompted the insertion of this provision of the Constitution, saw fit to exempt innocent parties who are wrongfully prosecuted for criminal offences from the payment of all costs, and to throw the burden of the defence as well as of the prosecution upon the counties, which are required to make an annual allowance, in lieu of the taxable costs in such eases. In the fourteenth section of the same chapter of Eev. St. we find substantially the same provision in relation to sheriffs’ costs. It is as follows: “ In all criminal cases, where the defendant shall be acquitted or otherwise legally discharged without payment of costs, the sheriff shall not be allowed any fees; but the Commissioners’ Court shall annually allow the sheriff such compensation for ex officio services, not exceeding thirty dollars a year, as they shall think proper.” The language of the statute is a little stronger, in relation to sheriffs, than it is in relation to clerks of the Circuit Court; but the intention of the legislature was manifestly the same. Neither shall be entitled to any fees where the defendant shall be acquitted or otherwise legally discharged, without payment of costs, but in lieu thereof, an allowance is to be made by the county. An acquittal, or other legal discharge, absolves the defendant from the payment of all costs. Such is the obvious meaning and true interpretation of the law.

The case of Carpenter v. The People, (3 Gilm. 147,) does not conflict but is in harmony with this view of the statute. There, it was held that a party who was convicted in the Circuit Court was liable to the clerk of this court for costs which he had made in the prosecution of a writ of error to obtain a reversal of the judgment. That decision was placed expressly upon the ground that there is no statute exempting parties from the payment of such costs, and the difference between that case and this, is particularly adverted to in the opinion of the court. It is said, “ there are some special provisions of the statute relative to the fees of the clerks of the circuit courts and sheriffs, in cases where the defendant is acquitted, but there are none which apply to the fees of the officers of this court in such cases.”

It is the opinion of this court, that the Circuit Court decided properly in sustaining the motion to quash this fee-bill; and its judgment is affirmed. Judgment affirmed.


text:
    Peter A. Misner, Plaintiff in Error, v. Joseph Lighthall, Defendant in Error.
    ERROR TO LA SALLE.
    The rale of the common law, which requires the owner of cattle, &e., to keep them upon his own land, is not in force in Elinois; and in order to maintain trespass, the owner of the close must show that it was protected by a good and sufficient fence.
    The opinion of the Court embodies a statement of the case.
    This cause was heard before Catón, Justice, at March term, 1848.
    A. Hoes, for plaintiff in error.
    E. S. Leland, for defendant in error.
   Treat, C. J.

This was an action of trespass, brought by Lighthall against Misner. The declaration alleged, that the defendant’s hogs entered the plaintiff’s close, and destroyed the corn growing therein. The second plea alleged in substance, that the plaintiff’s close was situated adjoining a large tract of unimproved land, which was not surrounded by a fence, or in the actual possession of any person, but was lying open and common to the stock of all persons residing in the neighborhood; that the defendant resided in the neighborhood of the plaintiff’s close, and suffered his hogs to run at large upon the adjoining uninclosed land; that the hogs, without his knowledge and against his will,"entered from the same into the plaintiff’s close, through the defects and insufficiency of the plaintiff’s fence; and that the plaintiff’s close was not protected or separated from the adjoining uninclosed land by a good and sufficient fence. The third plea alleged generally, that the plaintiff’s close was not surrounded by any good and sufficient fence, wherefore the defendant’s hogs, without his knowledge and against his will, entered upon the close, through the defects of the fence, and committed the injury complained of. The Court sustained a general demurrer to the pleas; and the plaintiff had a verdict and judgment on the issues of fact formed in the cause.

This court decided, in Seeley v. Peters, (5 Gilm. 130,) that the rule of the common law, which requires the owner of cattle, horses, sheep, hogs, &c., to keep them upon his own land, has never been in force in this State; and that in order to maintain an action for the trespass of such animals to one’s close, the owner of the close must have it surrounded by a good and sufficient fence. On the principle of that case, the pleas presented a good defence to the action. The hogs were lawfully upon the uninclosed land, contiguous to the close of the plaintiff, and it was his duty to have protected himself against them by a sufficient fence. If he neglected to keep up a fence sufficient ordinarily to prevent stock from going upon his land, and the hogs entered thereon for the want of such a fence, he must abide the consequences. The case might be different, if the defendant had driven them into the close; but the pleas fully negative any such conclusion. They show that the injury resulted from the insufficiency of the fence, and not from any fault on the part of the defendant. The court erred in sustaining the demurrer; and the judgment must be reversed, and the cause be remanded.

Judgment reversed!.


author: Trumbull, J.

text:
    John D. Jennings, Plaintiff in Error, v. Ichabod Gage et al., Defendants in Error.
    ERROR TO COOK.
    A party cannot rescind a contract and at the same time retain the consideration, in whole or in part, which he has received under it. He must rescind the contract in toto, or not at all.
    If goods are simply contracted to a party, but never actually sold and delivered to him, he has no right to the possession, till the contract is consummated; and if he, under such circumstances, obtain possession of them surreptitiously and without the consent of the other party, such other party can recover the possession without a rescission of the contract.
    There is a material distinction between a sale and delivery of goods, and a mere contract for a sale. In the one case, the title to the goods passes to the vendee; in the other it remains with the original owner.

      It is only when a vendor seeks to avoid the contract under which he has parted with his goods, that a retnrn of the consideration he has received under such contract becomes necessary.
    The good faith of a transaction is a matter peculiarly appropriate for the consideration of a jury.
    The loss of title to goods, as between parties equally innocent, should fall upon him who has voluntarily transferred to another such possession of them as enabled him to commit the fraud, even in cases which would authorize a rescission of the sale and a recovery of the goods from the vendee.
    It is a universal and fundamental principle of the law of personal property, that no man can be divested of it without his consent. 'But if he consent to the transfer of such property, though such consent be temporary only and obtained by fraud, and therefore revocable as against such unfair purchaser, an honest purchaser from him will be protected, and the first owner must bear the loss.
    The facts of this case are sufficiently stated in the opinion of the court.
    This cause was heard before T. L. Dickey, Judge, and a jury, at May term, 1851. Jennings sued out this writ of error.
    Arnold & Lay, for plaintiff in error.
    G. Goodrich, for defendants in error.
   Trumbull, J.

Gage, Dater, and Massey, merchants in the city of New York, sold to Van Valin a bill of goods, talcing in payment his notes at four, six, and nine months, secured by a mortgage on real estate in Wisconsin. -The goods to be shipped to Chicago, but not to be delivered to Van Valin till he gave an indorser on the notes satisfactory to J. H. Burch. The goods were accordingly forwarded to Van Valin, care of James Peck & Co., warehousemen, Chicago, who were instructed by Burch not to deliver them without directions from him. Van Valin, however, paid the charges and obtained the possession of the goods without giving the indorser, and subsequently sold them to Jennings, the defendant in the court below.

Gage, Dater & Co. demanded the goods of Jennings, and on his refusal to deliver them brought trover for their value, and recovered a judgment for $1339.74.

Among other instructions the defendant asked the court to give to the jury the following: “ If the jury believe, that plaintiffs in this case contracted to sell the bills of goods sued for in this case to Henry Van Valin, defendant’s vendor, and received the notes of Van Valin, part secured by mortgage on property, in Wisconsin and the balance to be secured by a good indorser, or that an indorser in addition to the security given by mortgage was to be given for the whole amount of the goods, still if the mortgage was given by Van Valin, before the plaintiffs would be entitled to recover of the defendant, the plaintiffs must show that they have restored the mortgage, or cancelled the same, or offered to cancel the same, and if they have not done either, the law is with the defendant.”

“ If the jury believe, from the evidence, that Jennings purchased the goods in good faith of Van Valin, and that at the time of such purchase Van Valin had actual possession of such goods, and that they were marked in New York by plaintiffs with Van Valin’s name, and transmitted to him at Chicago and there actually delivered to him by the plaintiffs’ agent and consignee, then as against Jennings the plaintiffs cannot recover.”

The first of the above instructions the court refused to give, and gave the second, with this qualification : “ If however the agreement between the plaintiffs and Van Valin was, that the goods were only to be delivered to Van Valin upon the condition of his giving security for the price, then if the possession was obtained by Van Valin without giving the security agreed upon and in violation of- the agreement, then he derived no title to the goods which he could sell to Jennings, even if Jennings was a purchaser in good faith and for a valuable consideration.”

The refusal to give the first instruction and the giving of the other with the qualification, present the only questions arising in the case.

It is a rule that a party cannot rescind a contract and at the same time retain the consideration, in whole or in part, which he has received under it. He must rescind the contract in toto, or not at all. Hogan v. Weyer, 5 Hill, 390; Moyer v. Shoemaker, 5 Barb. Sup. Ct. Rep. 322; Buchenau v. Horney, 12 Ill. 336.

The first of defendant’s instructions was not however, based upon the supposition that Van Valin received the goods under the contract of purchase, and unless he did so receive them, that instruction and several others of precisely similar character were properly refused as inapplicable to the facts of this case.

If the goods were simply contracted to Van Valin but never actually sold and delivered to him, he had no right to the possession till such contract was consummated; and if, under such circumstances, he obtained the possession surreptitiously and without the consent of the plaintiffs, they could recover it again without a rescission of the contract.

There is a material distinction between a sale and delivery of goods, and a mere contract for a sale. In the one case, the title to the goods passes to the vendee ; in the other it remains with the original owner. Upon the hypothesis assumed in the instruction, that the goods were merely contracted to be sold to Van Valin, as applied to the facts of this case, it is clear that the title to the property was not changed, and the plaintiffs had the right, without the rescission of a contract which did not change the title to the goods, to recover their possession or value against one who had wrongfully taken them away.

It is only when the vendor seeks to avoid the contract under which he has parted with his goods, that a return of the consideration he has received under such contract becomes necessary.

The right to recover in this case,,-upon the supposition that there was simply a contract for the sale of the goods, which were not to be delivered except further security was given, did not depend on the rescission of such contract; hence it was unnecessary that the plaintiffs, before bringing suit, should have cancelled the mortgage which had been given in part security for the price of the goods, as they were not seeking to avoid the contract for their sale or to recover in opposition to it, and defendant’s instructions upon this branch of the law were properly refused, as inapplicable to the case.

The questions of law arising upon the other instruction, and the qualification annexed, are of a different character. That instruction is based on the supposition that Jennings was a purchaser of the goods in good faith and for a valuable consider- ■ ation. Whether the evidence would have justified the jury in finding that he was such a purchaser is not now the question. The good faith of the transaction was a matter peculiarly appropriate for the consideration of the jury, and as such the defendant had the right to have it submitted to and passed upon by them.

As between plaintiffs and Van Valin there is no question that the title to the goods would not pass on the state of case supposed in the instruction; but it is insisted that, as between the plaintiffs and Jennings, the law is different, and that as between them, both parties being innocent, the loss should fall upon the owners, who, by intrusting Van Valin with the possession of the goods enabled him to commit the fraud, —rather than upon Jennings, who is presumed to have acted in good faith and with proper caution. This is unquestionably the law where the owners, with the intention of sale, have voluntarily parted with the possession of the goods, and clothed the vendee with the indicia of ownership, though under such circumstances as would authorize a rescission of the sale and a recovery of the goods as against the vendee. Mowry v. Walsh, 8 Cow. 238; Rowley v. Bigelow, 12 Pick. 307. But this principle does not apply to sales upon condition and where the original owner has never consented to the transfer of the property. Bradeen v. Brooks, 22 Maine, 463; Dresser Manuf. Co. v. Waterston, 3 Met. 9; 2 Kent, 497. It is a universal and fundamental principle of the law of personal property that no man can be divested of it, without his own consent. Salters v. Everett, 20 Wend. 275; Ash v. Putnam, 1 Hill, 303. If he consent to the transfer of the property, though such consent be temporary only, and obtained by fraud, and therefore revocable as against such unfair purchaser, still an honest purchaser from him, will be protected, and the first owner must bear the loss. Does the instruction, as qualified by the court, exclude the idea of Van Valin having obtained possession of the goods by the consent of the plaintiffs l If it does, the instructioii was correct, otherwise it was erroneous. A moment’s consideration will show that all the facts, stated hypothetically in the qualification, may be true, and still Van Valin 'may have got the possession of the goods temporarily, by the consent of the plaintiffs. He may have obtained the possession under the false and fraudulent promise that he would afterwards furnish the security, or he may even have furnished an indorser upon the notes satisfactory to Burch, when in fact the signature of the indorser was forged; and there are many ways in which it is possible that he may fraudulently have obtained possession of the goods without giving the security agreed upon, and in violation of his agreement, and yet by the plaintiffs’ consent, for the time being. Under such circumstances a bond fide purchaser from Van Valin would be protected.

The qualification of the instruction was therefore erroneous, and the judgment must for that reason be reversed.

Judgment reversed and cause remanded.

Judgment reversed.


text:
    Salmon C. Colton et al., Plaintiffs in Error, v. James H. Hanchett et al., Defendants in Error.
    ERROR TO OGLE.
    The act to provide for township organization does not give the board of supervisors authority to appropriate the county funds in aid of the construction of toll-bridges, or to aid a private individual in the construction of a free bridge; nor does the securing to the county a right of way for county officers, grand and petit jurors and witnesses-in criminal cases alter the powers of the supervisors.
    The law fixes the compensation and defines the privileges and immunities of county officers, and they have no right, by the use of county funds, to secure to themselves or to any other particular class of individuals, immunities not granted by the statute.
    A bill to enjoin the board of supervisors from misapplying the money of the county, is a proper remedy.
    The facts of this case are sufficiently stated in the opinion of the court.
    The pro formd decree upon the agreement of the parties was entered at March term, 1852, of the Ogle Circuit Court, Wilkinson, Judge, presiding.
    J. Marsh and T. L. Dickey, for plaintiffs in error.
    E. 8. Leland, for defendants in error.
   Trumbull, J.

The complainants, who were tax-payers of Ogle county, filed a bill in chancery to enjoin the board of supervisors of said county from granting to James H. Hanchett, one of the defendants, the sum of one thousand dollars, to aid him in the construction of a toll-bridge across Rock River, at Oregon city, in said county.

Hanchett had been authorized to build the bridge by a special act of the General Assembly, enacted February 17, 1851; and the board of supervisors of Ogle county, by an order passed January 28, 1852, resolved that, on the completion of said bridge by Hanchett, an order should be drawn on the treasurer of said county, in his favor, for the sum of one thousand dollars. Provided, that the order was not to be issued till Hanchett should execute to the county a good and sufficient right of way across said bridge for all the officers of said county, while employed on the business of the county, for all grand and petit jurors, and all witnesses attending criminal trials, to continue for the term of twenty years.

The case was heard on bill and answer, and a pro formé decree entered dismissing the bill. By a stipulation between the parties, two questions only are submitted to this court for adjudication. “ First, the right of the defendants to issue the order, for the purpose specified in the bill and answer; and, secondly, whether the complainants have sought the proper remedy.”

The act to provide for township organization, approved February 17,1851, art. 15, § 2, declares as follows: “ No county, under this organization, shall possess or exercise any corporate powers except such as are enumerated in this act, or shall be specially given by law, or shall be necessary to the exercise of the powers so enumerated or given.”

Under this provision of the statute, which is merely declaratory of what the law was before, it is manifest that the board of supervisors had no authority to appropriate the county funds to aid a private individual in the construction of a toll-bridge, or for any other purpose, unless it was given by the general law providing for township organization, or was necessary to the exercise of some power therein enumerated, for it is not pretended that there is any special statute conferring the power.

The township law will be searched in vain for any provision specially authorizing the board of supervisors to appropriate county funds in aid of the construction of toll-bridges. The only part of the act which can afford a pretext for the exercise of such a power is the fourth clause of the fourth section of art. 16, which authorizes the board of supervisors to appropriate funds to aid in the construction of roads and bridges, in any part of their respective counties, whenever a majority of the whole board of the county may deem it proper and expedient.”

The meaning of this general provision is to be ascertained by reference to the other provisions of the act, upon the principle that, in the construction of a statute, the whole act is to be taken together ; and indeed all statutes upon the same subject are to be construed in reference to each other.

By article 22, the care and superintendence of highways and bridges are conferred on the commissioners of highways in the respective towns; but such commissioners have no more authority under this law to erect toll-bridges, than they have to put up gates, and charge toll on any of the ordinary highways of the county, which it will not be pretended that they have authority to do.

The roads and bridges, in aid of the construction of which the board of supervisors is authorized to. appropriate funds, must be understood to be such roads and bridges as the act authorizes to be built; that is, free roads and free bridges, the jurisdiction over which is given to the towns through their commissioners of highways. The board of supervisors would have no authority to appropriate county funds to aid a private individual in the construction of even a free bridge; much less have they authority to donate a sum of money to aid him in the building of a bridge for his own private advantage.

The circumstance, that the money was not to be paid Hanchett till he secured to the county a right of way for county officers, grand and petit jurors, and witnesses in criminal cases, does not alter the case. The law fixes the compensation, and defines the privileges and immunities of county officers; and they have no right, by the use of county funds, to secure to themselves, or for any other particular class of individuals, immunities not granted by the statute.

The other question involved in the case relates to the remedy which the complainants have chosen.

It was not in their power to take appeal from the order of the board of supervisors, for the statute has not made provision for appeals in such cases.

They could not resist the payment of their taxes upon the ground that the board of supervisors were about to misapply part of the county revenue; for the whole revenue would be collected together, and it would be impracticable to determine how much of the tax assessed against each individual-was on account of the illegal application of part of the county funds. It has been suggested, that an action on the case would have lain against the supervisors, or that there was a complete remedy by the commón-law writ of certiorari. It is possible that partial redress, at least might have been obtained in either of the ways indicated; but to have resorted to one of them would have led to a multiplicity of suits; and the other, if available at all, would most likely have been less prompt and efficacious than that which was adopted. No objection was taken to the jurisdiction in the answer; and, as the right to appropriate the funds of the county in the manner proposed was a question affecting the public interest, the remedy by bid, to enjoin the board of supervisors from misapplying the money of the county, was the most direct, speedy, and efficacious which could have been adopted, and we see no objection to chancery entertaining jurisdiction of such a bill.

The decree of the Circuit Court is reversed and the cause remanded.

Decree reversed.

Catón, J., dissented.


text:
    John King et al., Plaintiffs in Error, v. Addison Ramsay, Defendant in error.
    ERROR TO MARSHALL.
    Where a bond is the foundation of an action of debt, nil debet is not a good plea. It is otherwise where the instrument is but inducement to the action.
    A defendant who is sued upon a replevin-bond, who wishes to show, under the statute, that the merits of the case have not been determined in the trial of the action in which the bond was given, must affirmatively state, in his plea, why the merits were not so determined; enough of the proceedings in the former action should be set forth to enable the court to decide, on demurrer, whether the right of property has been determined.
    If the right of property is put in issue by a defendant, and the finding is in his favor, the award of a retorno hdbendo is a matter of course, whether prayed for by the plea or not.
    In an action upon a replevin-bond, the defendants (obligors) have the right to show in mitigation of damages, that the plaintiffs in replevin, in the original action, were the general owners of the goods; and the true measure of damages, if the property was worth that much, was the amount necessary to discharge the liens upon it.
    The facts of this case are stated in the opinion of the court.
    The cause was heard before T. L. Dickey, Judge, without a jury, at April term, 1850, of the Marshall Circuit Court. • Judgment for Ramsay on the bond, for eight hundred dollars. The defendants in the court below excepted to the finding of the court, and sued out this writ of error.
    H. O. & A. L. Merbiman, for plaintiffs in error.
    O. Peters and Ramsay, for defendant in error.
   Treat, C. J.

This was an action of debt, brought in the name of Ramsay, sheriff of Marshall county, against Burnell, King, Yonts, Earl, and Vinecore. King, Earl, and Vinecore ■ only were served with process. The declaration was upon a replevin-bond, executed by the defendants to the plaintiff, on the 8th of March, 1847, in the penalty of ¡$800, conditioned for the return, if return should be awarded, of eight horses and eight harnesses, which had been taken by the plaintiff in an action of replevin, instituted by Burnell and others against Robertson; and it alleged a trial of the action of replevin, a verdict and judgment therein in favor of Robertson, and the award of a writ of retorno habendo; and assigned for breach that the defendants had not made return of the property.

The defendants, King, Earl, and Vinecore, pleaded several pleas. The first plea was non est factum, on which issue was taken. The second plea was nil debet, to which a demurrer was sustained. The third plea was nul tiel record, on which there was an issue. The fourth plea alleged, that the property replevied in the original action was the property of the plaintiffs therein, and that the merits of the case were not fully determined on the trial of that action. The fifth plea alleged, that Robertson, the defendant in the action of replevin, ás constable, held possession of the goods replevied, by virtue of several attachments issued by George Snyder, a justice of the peace, against O. Hinton & Co.; one in favor of Denby, for $82.75; one in favor of Mosher, for $49.64; one in favor of Gapeer, for $23.88; one in favor of Williamson, for $10.25; one in favor of J. Waugh, for $70 ; one in favor of S. Waugh, for $90 ; and one in favor of Fisher & Co., for $20; that the trial in the action of replevin only determined, that Robertson had the right to retain the goods to satisfy the attachment in favor, of Denby; and that the right of property, as to the other attaching creditors, was not determined; and that the plaintiffs in replevin were the owners of the goods, and entitled to the possession thereof, as against all of the attaching creditors except Denby. The sixth plea was like the fifth, with the additional averment, that the defendants, prior to the commencement of this suit, fully paid and satisfied the judgment in favor of Denby. The seventh plea was similar to the fifth, with the additional allegation, that the plaintiffs in the action of replevin purchased the goods in question of O. Hinton & Co. prior to the issuing of the attachments, of which all of the attaching creditors but Denby had notice before the attachments were levied. The eighth plea alleged, that the award of a writ of retorno habendo in the action of replevin was wholly void, because the defendant in that action did not, by his plea, pray for a return of the property. The court sustained a demurrer to the fourth, fifth, sixth, seventh, and eighth pleas.

The cause was submitted to the court at the April term, 1850. The plaintiff read in evidence the replevin-bond described in the declaration; also the record of the judgment in the action of replevin; also the writ of retorno hdbendo issued on the judgment, and the return of “not found” thereon; and he proved that the goods replevied were worth $350.

The defendants then read in evidence the declaration, plea, and replication in the action of replevin. The declaration was in the usual form. The plea alleged that on the 14th of February, 1847, O. Hinton & Co. were indebted to P. J. Mosher in the sum of $49.64, to C. C. Gapeer, $23.88, to J. H. Williamson, $10.25, to J. Waugh, $70, to S. Waugh, $90, to J. Denby, $82.75, and to Fisher & Co. $20; that on that day each of said creditors sued out an attachment before George-Snyder, a justice _ of the peace, against O. Hinton & Co. for the amount of his debt, all of which attachments were delivered to the defendant, a constable, and were by him on the same day levied on the goods in question as the property of O. Hinton & Co., and that the same were then the property of O. Hinton & Co., and not the property of the plaintiffs; and that such proceedings were afterwards had in the attachment cases that each of the attaching creditors recovered a judgment against O. Hinton & Co. for the amount of his demand. The replication simply denied that the goods in question were the property of O. Hinton & Co., and affirmed that the same were the property of the plaintiffs.

The defendants then produced the several attachments, and the judgments entered thereon, and offered to read them in evidence, in connection with proof that the plaintiffs in replevin were the general owners of the goods, for the purpose of showing that the lien of the defendant in the action of replevin was less than the value of the goods; but the court rejected the evidence, and the defendants excepted.

The defendants then offered to prove, in mitigation of damages, that at the time of the issuing of the attachments and the commencement of the action of replevin, the plaintiffs in replevin were the general owners of the property, by virtue of a prior purchase from O. Hinton & Co., and that all of the attaching creditors except Denby had notice of such purchase and ownership before the suing out of their attachments; but this evidence was excluded, and the, defendants excepted.

The court found the issues for the plaintiff, and assessed his damages at $350; and judgment was then entered against all of the defendants for the penalty of the bond, to be discharged on payment of the damages assessed and the costs of suit. At the October term, 1851, after notice to the defendants, the record of the judgment was so amended as to show a judgment against King, Earl, and Vinecore only.

Where a bond is the foundation of an action of debt, nil debet is not a good plea. It is otherwise where the instrument is but inducement to the action. 1 Chitty’s Pl. 518; Warren v. Consett, 2 Lord Raym. 1500; Jansen v. Ostrander, 1 Cowen, 670; Allen v. Smith, 7 Halsted, 159; Davis v. Burton, 3 Scam. 41. The bond was clearly the foundation of the present action, and the second plea was properly held bad on demurrer.

The fourth plea was evidently framed with reference to the provisions of the act of the 1st of March, 1847, in these words: “ That in all actions upon replevin-bonds, where the merits of the case have not been determined in the trial of the action of replevin in which the bond was given, the defendant may plead the above facts, and also his or her title to the property in dispute in the said action of replevin.” The plea was clearly defective, in not showing why the merits of the case were not determined in the action of replevin. A party claiming the benefit of the statute must affirmatively show by his plea that the case is within its provisions. Mere general averments will not suffice. Enough of the proceedings in the former action should be set forth to enable the court to decide on demurrer whether the right of property has already been determined. If the suit was dismissed, that fact should be stated. If there was a trial, the plea ought to show what were the issues, and how they were disposed of. The plea was also defective in professing to answer the entire cause of action. Even if the goods replevied belonged to the plaintiffs in the action of replevin, and the right of property was not determined in that suit, the obligee would still have a cause of action on the bond, and be entitled to recover nominal damages, for a failure to make return of the goods, as required by the judgment of the court.

The same objections apply to the fifth, sixth, and seventh pleas. These pleas allege generally that the right of property as to all of the attaching creditors but Denby, was not determined in the action of replevin. The proceedings in that suit should have been set out, so that the court could determine whether the defendants were entitled, under the statute, to have the right of property inquired into in this action.

The eighth plea was clearly bad. When an action of replevin is dismissed, or the right of property is adjudged against the plaintiff, the court is required to give judgment for a return of the goods replevied, and damages for the detention thereof. Rev. Stat. ch. 88, § 6. If the right of property was put in issue by the defendant, and the finding was in his favor, the award of a retorno habendo was a matter of course, whether he prayed for a return in his plea or not.

The judgment in the former action did not conclude the plaintiffs in replevin from afterwards insisting that they were the general owners of the goods replevied. The goods were claimed by the constable by virtue of certain attachments levied thereon; and the real issue in that action was whether those attachments were valid liens on the property. The finding on that issue determined nothing more than that the constable had a special property in the chattels to the extent of the judgments in favor of the attaching creditors. In that respect only was there any adjudication of the right of property. The question of the general ownership of the goods was left open and undetermined. The constable was entitled to the possession and control of the property, to enable him to satisfy the liens upon it. But after the liens should be discharged, he would hold the residue of the property, if any, in trust for the general owner. If the goods had been returned to him, and the sale of a part only had satisfied the judgments, the plaintiffs in replevin might assert title to the remaining portion. The replevin-bond was given for the indemnity of the officer and the attaching creditors. By a discharge of the liens on the property, the object of the bond would be fully answered. And there would be no propriety in allowing the obligee to recover more than would be necessary to accomplish that result. If permitted to recover the full value of the property, he would hold the balance remaining after discharging the liens, in trust for the general owner; and the latter might hold him liable for such excess, in an action for money had and received. To avoid circuity of action, the obligee should only be allowed to recover against the general owner the value of his special interest in the property. This view is fully sustained by the cases of Belt v. Worthington, 3 Gill & Johns. 247, and Wallace v. Clark, 7 Blackf. 298. In those cases the actions of replevin had been dismissed, and judgments entered for a return of the goods replevied. In actions afterwards brought on the replevin-bonds, the obligees were permitted to prove, in mitigation of the damages, that the'plaintiffs in replevin had title to the property. In this view of the case, the defendants had the right to show, in mitigation of damages, that the plaintiffs in the original action were the general owners of the goods; and the true measure of damages, if the property was worth that much, was the amount necessary to discharge the liens upon it. But the case clearly shows that the defendants were not prejudiced by the exclusion of the evidence. The plea in the action of replevin set out the judgments rendered in the attachment suits, and they were not put in issue by the replication. The existence and amount of the judgments stood admitted on the record; and the only question left open for determination was whether the judgments were liens on the property. The amount of principal and interest due on the judgments at the time of the trial of this case much exceeded the value of the goods; in point of fact the damages recovered are not sufficient to satisfy the judgments. It would be a useless ceremony to reverse the judgment for an erroneous ruling of the circuit judge, when this court can clearly see that the decision could not possibly have injured the defendants.

The offer of the defendants to prove that all of the attaching creditors but Denby had notice, at the time the attachments were sued out, of the prior purchase of the goods by the plaintiffs in replevin from O. Hinton & Co., was properly refused. The judgment in the former action was conclusive of that question. The fact that the good? were bound by the attachments had already been determined, and could not be drawn in question in this suit. The attachments were all specially relied on by the constable in his plea, and there was a general finding in his favor. The plea was bad in setting up several distinct defences; for a single attachment, if valid, would have entitled the officer to a return of the property. The plaintiffs in replevin, instead of joining issue on the plea, should have compelled the defendant by demurrer to sever in his defences. There would then have been as many issues as there were attachments, and a separate finding on each. If such a course had been pursued," and Denby’s attachment only had been sustained, the amount of his lien would have been the measure of damages in the action on the replevin-bond.

The judgment, as originally entered, was erroneous in embracing two defendants who were not before the court, either by service of process or appearance. But the subsequent amendment of the record entirely removed the objection.

The judgment is affirmed.

Judgment affirmed.


text:
    Henry L. Crosby, Appellant, v. Henry Loop et al., Appellees.
    APPEAL FROM BOONS.
    A lessor may grant the whole or any part of premises out of which rent issues, and. the lessee will be bound to pay the whole or a proportionate share of the rent to the grantee, and the latter has all the remedies to enforce payment which the lessor had.
    If a lessor makes an unqualified grant of leased land, the rent passes to the grantee as an incident of the reversion. But the lessor may sever the rent from the reversion, by reserving it, of he may, by a grant of a part of the land to one person, or of the whole land to several persons, create a necessity for an apportionment of the rent between the different owners.
    On the death of a lessor, rent has to be apportioned among the heirs, on whom the estate is cast.

      In all cases of apportionment of rent, it is the duty of the tenant to pay each party the proportion of rent to which he is entitled.
    This suit was originally commenced by the appellees against the appellant before a justice of the peace. A judgment was recovered before the justice for sixty-five dollars and costs. Crosby, the appellant in this suit, and defendant before the justice, appealed from this decision to the Circuit Court of Boone county.
    At December term, 1851, of the Boone Circuit Court, Wilson, Judge, presiding, the cause was submitted to him without the intervention of a jury. A judgment was again rendered in favor of the appellees for $68.25 damages and costs. A motion for a new trial was overruled. Crosby excepted, and brought the cause to this court by appeal, and assigned errors.
    Fuller & Burgess, for appellant.
    Loop & Hurlbut, for appellees.
   Treat, C. J.

This was an action of assumpsit, brought by Loop and others against Crosby. The evidence disclosed this state of case. The defendant was the owner of an undivided half of the “ Crosby Mills.” On the 7th of November, 1847, he leased the same interest therein to Robinson & Co., for the term of five years' and nine months, at an annual rent of $300, payable quarterly, one third in cash, and two thirds in trade. On the 25th of February, 1850, he conveyed the one undivided third part of the mills to the plaintiffs, for the consideration of $3000. The deed contained this provision: Subject, yet nevertheless to a lease of land and premises made by said party of the first part to Robinson & Co., rents and profits of which the said party of the first part reserves to himself; hereby agreeing to and with said parties of the second part, to draw orders on the said Robinson & Co., for the sum of two hundred dollars, payable annually during the continuance of said lease, payable to said parties of the second part, 'in quarter-yearly instalments, one half in flour, and one half in cash.” And on the same day, he drew an order in favor of the plaintiffs in these words:

Belvidere, February 25th, 1850. Messrs. Robinson & Co.: — Gents. You will please pay Henry Loop, John Loop, and George Loop, or order, two hundred dollars yearly from the date of' this order, out of moneys accruing due under the lease of the property, known as the Crosby Mills, near Belvidere, made by me to you, to be paid in quarter-yearly payments of fifty dollars, and payable one half in cash and the other in flour, for the term of time that the said lease runs, and fractions of year and quarter to be paid in the same proportion, commencing February 7th, 1850.

Henry Crosby.”

This order was presented by the plaintiffs to Robinson & Co., and payment demanded of the two' instalments, respectively due on the 7th days of August and November, 1850; but pay-was refused, and the defendant had notice. The action was brought to recover §68, a balance due on the instalments before mentioned. On this evidence, the court rendered judgment in favor of the plaintiffs for the amount claimed. That decision is assigned for error.

The lessor may grant the whole or any part of the premises out of which the rent issues, and the lessee is bound to pay the whole or the proportionate share of the rent to the grantee. The latter has all of the remedies to enforce the payment of the rent which the lessor had. If the lessor makes an unqualified grant of the land, the rent passes to the grantee as incident to the reversion, but he may sever the rent from the reversion by a grant of the land reserving the rent, or by a grant of the rent retaining the reversion. He may grant a part of the land to one person, or the whole to several persons, and' thereby create the necessity for an apportionment of the rent between the different owners. On the death of the lessor, the rent has to be apportioned among the hens on whom the estate is cast. In all cases of apportionment of rent, it is the duty of the tenant to pay each party the proportion of the rent to which he is entitled. This liability of the tenant forms an exception to the rule that an entire contract cannot be apportioned, and that a debtor cannot be compelled to pay a single demand in parcels to several persons. The exception had its origin in reasons of policy and convenience, and has been long and firmly established. It is in the power of the tenant to avoid several suits and distresses, by the prompt payment of the rent as it falls due. 3 Kent’s Com. 469; Bacon’s Ab., title Rent, letter M.; Crabb’s Law of Real Property, § 210, &c.

But for the reservation contained in the deed from the defendant to the plaintiffs, it is very clear that two thirds of the rent reserved in the lease to Robinson & Co., would have passed to the plaintiffs as an incident of the reversion, and it would have been the duty of the tenants to make payment accordingly.- It would have been a clear case for the apportionment of the rent between the plaintiffs and the defendant. The plaintiffs could have maintained an action against the tenants to recover their share of the rent; or they might have coerced payment by dis-training the goods and chattels of the tenants. But the reservation in the deed was a severance of the rent from the reversion. It evinced a certain intention oil the part of the defendant, not to dissolve the relation of landlord and tenant, subsisting between him and Robinson & Co. He expressly reserved to himself the whole of the rent, and as a matter of course he continued to be the landlord, and entitled to all the remedies given by law for the collection of the rent. The drawing of the order in connection with the grant of the reversion, did not amount to an assignment of two thirds of the rent to the plaintiffs. The order was the single direction of a creditor to his debtor, to pay a third person a certain sum out of a particular fund. The legal interest to any portion of the fund did not pass to the plaintiffs. If the order had included the whole of the rent reserved by the lease, it might have amounted to an equitable assignment of the fund, to'recover which the plaintiffs could have sued in the name of the defendant; and perhaps they would have been compelled to use all reasonable diligence to obtain payment from the tenants, before they could have recourse against the defendant. But the present is a very different case. The whole of the debt was not embraced by the order, and Robinson & Co. were not bound to discharge it in fractions to different persons. The plaintiffs could not have maintained an action against them in the name of the defendant. The principle that an entire contract cannot be apportioned and performance enforced in fragments, would have presented an insuperable bar to a recovery. Mandeville v. Welch, 5 Wheat. 277; Chapman v. Shattuck, 3 Gilm. 49. The plaintiffs having demanded payment of Robinson & Co., and notified the defendant of their refusal to pay, had a clear right to recover from him the amount claimed.

The judgment is affirmed.

Judgment affirmed.


text:
    The People, Plaintiffs, v. James Long, Defendant.
    ORIGINAL SUIT.
    The county treasurer, under the law to provide for township organization, is allowed a commission of two per cent, on all sums received and paid into the State treasury, whether the money is paid to him by the town collector, the owner of the property, or the purchaser at a tax-sale. The commission allowed the treasurer is in full of the compensation he is to receive from the State for the performance of his duties.
    The term, fees, as used in the township law, must be understood as referring only to the costs allowed the collector, for preparing the delinquent list for publication, for selling the lands under the order of the court, and for maldng conveyances thereof to the purchasers, which are to be paid by the owners of the property or the purchasers at the tax-sale.
    A collector is reimbursed, by the sale of the lands, for the printer’s fees; he has no legal claim for any of these fees, except for the portion charged on lands forfeited to the State.
    This was an original suit, submitted to the court, upon an agreed state of facts between the auditor and the defendant, at June term, 1852.
    B. C. Cook, for the people.
    J. N. Arnold, for the defendant.
   Treat, C. J.

This is an original suit brought in this court, in the name of the People of the State of Illinois against James Long. It is submitted to the court on an agreed state of facts, in substance as follows: The defendant was treasurer of Cook county, and ex officio collector of the taxes thereof, for the year 1850, the township law being in force in that county; the whole amount of the State tax collected by him, including the amount1 received from town collectors, and on the delinquent real estate, was $44,127.46, on which the auditor has allowed him a commission of two per cent. ($882.25); the auditor has also allowed him the sum of $33.72, the amount of printer’s fees on sales of delinquent lands to the State ; the defendant, in pursuance of instructions contained in a circular of the auditor, of the 2d of April, 1851, advertised the list of delinquent real estate for judgment at the July term, 1851, of the Cook County Court, but the court refused to enter judgment against the lands, because, in its opinion, the advertisement was not made for the proper term; the defendant then readvertised the list for the September term, and paid printer’s fees therefor $108.70; the defendant, in addition to the two per cent, commission allowed him by the auditor, claims a commission of three per cent, on the amount of the taxes on the delinquent lands, ($9,940.62,) making the additional compensation thus claimed, $298.21; he also claims a credit for •*$133.68, the amount of printer’s fees for the first advertisement of the delinquent list; if he is not entitled to either of the credits claimed, a judgment is to be entered against him for $221.84, the balance due the State, as shown by the books of the auditor; if he is entitled to the credits claimed, or either of them, then such judgment is to be entered as the court shall deem proper.

First. The act of the 17th of February, 1851, “ to provide for township organization,” requires the collector of each town to collect all taxes levied on property within its limits, and pay over the State and county tax to the county treasurer, after retaining three per cent, for his compensation. He is also required to return a list of the delinquent real estate to the county treasurer; and it is made the duty of the latter to collect the taxes charged against such real estate,- and, for that purpose, he is vested with the same powers that collectors possess in counties which have not adopted the township system. The act further provides, that the county treasurer shall be allowed two per cent, on the amount of State tax received and paid over into the State treasury.” Thus far, there can be no doubt as to the compensation of the treasurer, for receiving and paying over the State’s portion of the revenue. He is allowed a commission of two per cent, on all sums received and paid into the State treasury. He equally receives the tax, whether it is paid to him by the town collector, the owner of the property, or the purchaser at a tax-sale. But it is insisted that the treasurer is entitled to an additional compensation for collecting the taxes on the delinquent real estate, under another provision of the township law, in these words: “ Said treasurer shall be entitled to like fees for delinquent real estate, and for travelling to the seat of government, as county collectors are entitled to under the revenue laws.” This clause has reference to sect. 108, ch. 89, Rev. St., and to sect. 15 of an amendatory act, passed on the 27th of February, 1847. The former section provided, that “ the following fees and compensation shall be hereafter allowed to the following officers and persons herein named, for services rendered under the provisions of this chapter. To each collector, for collecting and paying over taxes, five per cent, on the first thousand dollars, and three per cent, on all additional sums paid over that amount. For each collector’s deed, twenty-five cents; and when more than one tract or lot is included therein, five cents for each additional tract or lot, to be paid to the collector by the person receiving such deed.” The latter section provides, that “the collector shall be allowed ten cents for each tract of land, and three cents for each town lot sold, and for making the delinquent list for publication, two cents for each tract of land, and one cent for each town lot, to be collected as other costs.” The term, fees, as used in the township law, must be understood as referring only to the costs allowed the collector, for preparing the delinquent list for publication, for selling the lands under the order of the court, and for making conveyances thereof to the purchasers; and not as referring to the compensation of the collector for collecting and paying over the taxes. The township law allows the county treasurer a commission on all taxes received by him and paid into the State treasury; and-that commission is in full of the compensation he is to receive from the State for the performance of his duties. The clause in question was inserted in the township law, in order to secure him the fees which collectors are allowed on the sale of delinquent real estate. The term fees is used in reference to the costs allowed the collector, and which are paid by the owner of the property or the purchaser; while the term compensation applies to the commissions of the. collector, which are paid by the State. In our judgment, the treasurer is not entitled to the additional commissions claimed.

Second. The 15th section of the act of the 27th of February, 1847, gives the printer, for publishing the delinquent list, ten cents for each tract of land, and three cents for each town lot, to be taxed as costs against the property. ' The 16th section of the act of the 6th of November, 1849, requires the collector to pay the fees of the printer; and the 18th section directs the auditor to credit the collector with the amount of the printer’s fees on the real estate sold to the State. The fees for publication are charged as costs against the property, and collected as such. The collector pays them in the first instance, and he is reimbursed by the sale of the lands. He has no legal claim against the State for the costs thus advanced, except the portion charged on the lands forfeited to the State; and to that extent the treasurer has been credited in this case. We do not deem it material to inquire whether the circular of the auditor was correct, or whether the court erred in refusing to enter judgment on the first advertisement. Be that as it may, neither the auditor nor this court has any authority to allow the treasurer a credit, for more than the amount of the printer’s fees on the lands purchased by the State. If he has any cause for complaint in this matter, he must seek relief from the legislature.

Judgment must be entered against the defendant for $221.84.

Judgment for the People.


text:
    Churchill Edwards et al., Plaintiffs in Error, v. John H. Vandemack, Defendant in Error.
    ERROR TO LAKE.
    Where there is no hill of exceptions in a case, and neither the summons nor any part of the record, upon a proceeding before a justice of the peace, discloses the nature of the action, this court cannot inquire whether the Circuit Court properly dismissed an appeal or not.
    Whenever it is made to appear to the Circuit Court, that an appeal from a justice of the peace is improperly depending before it, it is the duty of that court to dismiss it.
    The right of appeal from an inferior to a superior tribunal, for the purpose of obtaining trials de novo, is unknown to the common law, and only exists where it is expressly given by statute.
    The statutory provision, that “appeals from judgments of justices of the peace to the Circuit Court, shall be granted in all cases, except on judgments confessed,” has reference to judgments in civil proceedings, where the action is brought to redress some private injury, and embraces all such cases, whether the jurisdiction is conferred by the same general act, or by other statutes passed either before or since.
    Affidavits copied into the transcript by the clerk, form no part of a record, unless they are contained in a bill of exceptions.
    The order dismissing the appeal in this case was entered by H. T. Dickey, Judge, at the June term, 1851, of the Lake Circuit Court.
    The facts of the case are stated in the opinion.
    Ferry and Searls, for plaintiffs in error.
    T. L. Dickey, for defendant in eiTor.
   Trumbull, J.

This was an action commenced before a justice of the peace, and taken by appeal to the Circuit Court, where, on motion, the appeal was dismissed.

The record presents only one of the questions sought to be raised by the assignment of errors, and that is, the correctness of the decision dismissing the appeal.

The summons issued by the justice is in the usual form, requiring the defendants to answer the complaint of the plaintiff, “ for a failure to pay him a certain demand, not exceeding one hundred dollars.” There is no bill of exceptions in the case; and neither the summons, nor any part of the record legitimately before this court, discloses the nature of the action.

The motion in the Circuit Court was, as the record shows, to dismiss the appeal, for want of jurisdiction of said Circuit Court.

There is one class of cases in which an appeal from the judgment of a justice of the peace is expressly prohibited by statute. Rev. Stat. ch. 70, § 45; Yunt v. Brown, 1 Scammon, 264.

The record does not show that the judgment appealed from, in this instance, may not have been of this character. If so, of which fact it was competent for the Circuit Court to receive evidence, its decision was clearly right.

It will be observed that it was the appeal, and not the suit, which was dismissed. The provision of the statute, requiring the Circuit Court to dismiss the suit, whenever it is made to appear that the justice had no jurisdiction of the subject-matter of it, has, therefore, no application to this case.

Whenever it is made to appear to the Circuit Court, that an appeal from a justice is improperly depending before it, either because no appeal lies in the particular case, or because it was not taken in time, or for any other cause, except it be one which the appellant is entitled to amend, it is the duty of the court to dismiss it.

The right to appeal causes from an inferior to a superior court, for the purpose of obtaining trials de novo, is unknown to the common law, and only exists where it is expressly given by statute. Schooner Constitution v. Woodworth, 1 Scam. 511.

The statute conferring a general jurisdiction on justices of the peace in all civil actions, (Rev. Stat. ch. 57, § 58,) declares, that “ appeals from judgments of justices of the peace to the Circuit Court shall be granted in all cases except on judgments confessed.”

This provision, evidently, has reference to judgments in civil proceedings, where the action is brought to redress some private injury. ■ Clark v. The People, Breese, 266. And we are inclined to hold, that it embraces all such cases, whether the jurisdiction is conferred by the same general act which has granted the right of appeal, or by other statutes passed either before or since. There are, however, many cases of the imposition of fines and penalties for public offences of which justices have jurisdiction; and, in most instances, there is in such cases a special provision for an appeal. From judgments entered by justices of the peace, in «some few cases of this character, as for penalties for obstructing fordable streams, and for exhibiting shows without license, (Rev. Stat. 520,593,) the statute creating the offence and giving the justice jurisdiction is silent on the subject of appeal; and the consequence may be that no appeal lies in such cases, there being no general provision of law granting appeals from the judgments of justices in criminal, as there is in civil proceedings, for the enforcement of private rights.

In this case, there is copied into the transcript an affidavit of the" justice who tried the cause, showing that the action-was brought, under ch. 35, of Rev. Stat., against drovers for driving off the cattle of plaintiff, and if we could look to this affidavit, the judgment of the Circuit Court would have to be reversed, as it would there appear that it was a case coming within the general provision of the statute allowing appeals from judgments of justices of the peace; but it has frequently been decided, that affidavits, copied into the transcript by the clerk, form no part of the record, unless contained in a bill of exceptions. Hatch v. Potter, 2 Gilm. 727; Edwards v. Patterson, 4 Gilm. 126.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.