author: Opinion by Mr. Justice Catón :

text:
    Jerome Sweezy, appellant, vs. Abiel Chandler, et al., appellees.

      Jlppeal from Henderson.

    An assignee of a judgment, under our statute giving the right of redemption of realty sold under an execution to judgment creditors, within fifteen months after sale, is in contemplation of law a judgment creditor, and as such is entitled to redeem.
    When real estate was sold under an execution issued on the second, in point of time, of three judgments, and afterwards an execution was issued on the oldest of the three judgments, and levied upon the same real estate which was sold, held that the purchaser under the execution issued upon the second judgment, neglecting to redeem within twelve months of the sale, under the execution on the oldest judgment, was precluded from redeeming as a judgment creditor, inasmuch as by his sale under his execution, he was no longer a judgment creditor. Hel d, also, that the creditor holding the junior of the three judgments, had the right of redemption under the sale on the execution issued on- the1 oldest judgment, without having redeemed from the sale on the execution issued on the second of said judgments. Held, also, that the title acquired by redemption under the sale on the execution issued on the oldest judgment, would hold said realty in preference to the purchaser under the sale made on the execution issued on the second judgment.
    Under our statute, it is not essential that a judgment should he a lien upon the estate, in order to authorize the judgment creditor to redeem from a previous sale.
    This was an action in ejectment, submitted to the Judge of the Henderson Circuit Court, upon the following agreed state of facts :
    The action was brought to recover lot fourteen and the east hálf of lot fifteen, in block sixty-eight, in the town of Oquawka, in said county.
    It was agreed that the plaintiff showed on the trial the following title, to wit, a judgment in the Circuit Court of Warren county, rendered on the 13th November, A. D. 1843, in favor of J. B. Camden et al., against John Harris, for the sum of $2,103; a sale on the 15th day of August, 1844, of said lots, to the plaintiffs below, upon an execution issued on said judgment from the Circuit Court of Warren county, and a deed from the sheriff, made on the 18th day of August, 1846; and that said judgment, levy and sale, were in all respects regular. It was agreed that the defendant below showed on the trial the following title, to wit, a judgment against the said John Harris, rendered on the 27th May, 1842, and a sale by virtue thereof on the 9th day of August, 1845, to one Henry Jennings, of the lots in controversy, upon an execution dated 17th July, 1845, issued from the Circuit Court of Henderson county; also, a judgment in the Henderson Circuit Court in favor of Martin Thayer against the said John Harris, rendered June 3,1844, and an assignment of the same to Charles M. Harris, on the 12th February, 1846; also, an execution, in due form of law, on said judgment, dated 6th November, 1846, directed to the sheriff of Henderson county, and a certificate of redemption, which redemption was made by virtue of said judgment and execution; also a levy of said execution, in due form of law, on said lots, and a sale of said lots by the sheriff, by virtue of said execution, to the said Charles M. Harris, on the 22d January, 1847 ; also a deed, in due form of law, from the sheriff of Henderson county to said Charles M. Harris, for said lots, dated 24th March, 1847, executed, by virtue of the sale to him, on the 22d January, 1847.
    It was admitted that executions were issued upon all the aforesaid judgments, within a year and a day of the rendering of each. It was admitted that the levy made on the execution, in favor of Camden et al., was duly recorded in Henderson county. It was also agreed, that possession of the defendant below was under one Charles M. Harris, and that plaintiffs and defendant claim title from John Harris, the father of Charles M. Harris.
    Upon this agreed case, Purple, Justice, found against the defendant, and rendered judgment accordingly, at May term, 1849. Defendant below appealed, and assigns for error, the judgment against him, and in deciding that he had no right to redeem from the sale, and the judgment in favor of Hughes.
    Williams & Lawrence, for appellant.
    Browning & Bushnell, for appellees.
   Opinion by Mr. Justice Catón :

The decision of this case involves a construction of our statute authorizing judgment creditors to redeem. The premises in controversy are situated in Henderson county, and originally belonged to J. Harris, against whom three judgments were obtained. The first was recovered by Hughs, in the Henderson Circuit Court, on the 27th of May, 1842. The second was in the Warren Circuit Court in favor of the Chandlers, and recovered on the 13th of November, 1843; and the third was in favor of Thayer, and recovered in the Henderson Circuit Court on the 3d of June, 1844. An execution was issued on the second judgment, which was levied on the premises in question, and a certificate of the levy filed with the recorder of Henderson county, on the 20th of November, 1843, and the premises sold, on the 15th of August, 1844, to the plaintiffs below, who obtained a sheriff’s deed on the 18th of February, 1846. On the 17th of July, 1845, the plaintiff in the senior judgment issued an execution, which was levied on the same premises, and under which they were sold to Jennings on the 9th of August, 1845. On the 12th of February, 1846, Thayer, the plaintiff in the youngest judgment, assigned the same to C. M. Harris, who, on the 6th of November, 1846, issued an execution, and on the same day redeemed from the sale under the oldest judgment, and levied his own execution upon the same premises, under which they were again sold, and he became the purchaser on the 22d of January, 1847, and took a sheriff’s deed on the 24th of March following.

The question is, had the assignee of the youngest judgment a right to redeem from the sale under the senior judgment, and thus cut out or overreach the title acquired under the second judgment. The levy under the second judgment was prior to the date of the youngest judgment, which, however, become a lien upon the premises before the sale under that levy, but from that sale no redemption was ever attempted. The redemption from the sale under the senior judgment, by the assignee of the youngest judgment, was after the expiration of twelve months and before the expiration of fifteen months from the date of that sale. The purchasers under the first sale never redeemed the premises from either the sale under the oldest or the youngest judgment. By the sale under the second judgment that became satisfied, and the plaintiffs ceased to be judgment creditors, and became purchasers, and as such alone had they a right to redeem from the sale under the senior judgment. Hence their right of redemption was gone, and the title which they had acquired irrevocably lost, at the expiration of the twelvemonths, although they have still a right to insist upon their title until a better one is legally obtained under the senior judgment, and therefore they contest the right of the assignee of the youngest judgment to redeem from, and thus acquire a title under the oldest judgment.

By section 14, chapter 57, R. S., it is provided that 44 after the expiration of twelve months, and at any time before the expiration of fifteen months, from the sale of any lands or teñe-, inents under the provisions of the preceding sections hereof, it shall be lawful for any judgment creditor to redeem the same in the manner following.” The section then directs the same course to be pursued which was followed in this case. The sixteenth section provides that “any judgment creditor or creditors may redeem the whole or any part or portion of the lands or tenements previously sold upon execution.” The twenty-second section provides that it shall be the duty of the sheriff, when a redeeming creditor shall be entitled to a deed, “ to execute a deed to such creditor as the original purchaser, and such deed shall be as valid and effectual in law as if such creditor had been the original purchaser.”

Two objections are urged why the defendant below was not authorized to redeem: first, because the statute does not authorise an assignee of a judgment to redeem; and second, that the lien of the youngest judgment was extinguished by the sale and expiration of the time of redemption, under the second judgment, and that without such lien he had no right to redeem. The.firs.t'Objection is answered by the case of Van Rensalaer vs. Sheriff, &c., 1 Cowen, 443, where it was held that the assignee of a judgment was'a judgment creditor in contemplation of law, and as such entitled to redeem. This decision was made before the statute of New York authorized, in terms, such assignee to redeem, and'is an authority directly in point, with the reasoning of which we are satisfied. In support of the second objection, numerous decisions of the Supreme Court of New York have been referred to, the facts of some of which are, as to this question, precisely analagous to the facts of this case, where it has been held that the right of the youngest judgment creditor had been cut off by the sale under the intermediate judgment. Ex parte Stevens, 4 Cowen, 133. But the decisions to which we have referred are all put expressly upon the ground that the judgment creditor claiming to redeem had lost his lien upon the premises. By the New York statute a lien is expressly required, but by ours it is not. Now, do they both mean the same thing ? That is the question. Our statute, and that of New York making judgments liens upon the defendant’s real estate, are alike, except as to the duration and territorial extent of the liens created. Both create liens upon the lands of defendants, but after a limited time the liens shall cease as against bona fide purchasers and subsequent incumbrances. See R. S. Ill., chap. 57, sections 1 and 2; R. S. N. Y., Part 3, chap. 6, sec. 3. But, as before remarked, their statute authorizing judgment creditors to redeem, differs very widely from ours, for that requires that the decree or judgment “ shall be a lien and charge upon the premises sold,” while ours authorizes “any judgment creditor” to redeem. We do not feel authorized to add to our statute the substantive and important requirement which is omitted here, and inserted there. Should we construe our statute like that of New York, and allow no judgment creditors, but those whose judgments are liens upon the premises sold, to redeem, we should cut off the right of redemption to creditors whose judgments are in other counties than that in which the land lies; for in this state the liens of judgments do not extend beyond the counties in which they are rendered. It may be answered that such judgment creditors may take their executions into the foreign counties, and by making a levy entitle themselves to the right of redemption. But this is not so, for thew^could not thereby make their judgments liens. NoJpp^^^^^^feeven by the actual levy of such an executiomypn&ijKl? sucnr^Kbecome effectual as to creditors and bonurcha^iftíjwe shall presently see, until a certificate of i^i^wimfgic recorder. In Such a case it would be ihljlevy and e certificate that would create the lien, (if % jndjKM) and not the judgment; and to the former aWp. title relate back. There was, then, a most substantial reason why the legislature should not make the right of redemption depend upon the existence of a lien created by the judgment. When, as in this state, judgments are only docketed in the counties where they are rendered, the lien could not be extended beyond the county, else no person could safely purchase real estate without examining the records of judgments of every county in the state; and yet to allow the right of redemption only to judgment creditors within the county, would riot be affording the full measure of relief contemplated. The object of the legislature in allowing judgment creditors to redeem, was to prevent a sacrifice of the defendant’s estate, and to make it pay as many of his debts as possible; and to allow as many of his judgment creditors as could, to secure the payment of their judgments, by making an advance, which the defendant could not or would not make himself. When this beneficial purpose can be effected, without injury to the rights of others, it should be allowed, so far as the provisions of the statute will fairly authorize it.

The twenty-fifth section of the act provides, that when an execution is issued to a foreign county, and is levied on lands-, the sheriff shall make and file in the recorder’s office a certificate of the levy, “ and until the filing of such certificate such levy shall not take effect as to creditors and bona fide purchasers without notice.” This shows that a judgment in another county never can become a lien, although the levy may “take effect.” But should we adopt the New York statute, and then, to help it out, hold that by filing the certificate of the levy the judgment become a lien from that date, the difficulty would be but partially removed. For then a creditor with a judgment in another county, prior to the Chandler judgment, or even senior to that of Hughs, would be cut off from redeeming from the sale under the latter altogether; for he could not have levied his execution for the purpose of redeeming until after twelve months from the date of the sale, for before that time a judgment creditor would have no right to redeem, and after that time had expired the title under the Chandler judgment had become perfect, and hence his levy could never take effect, for then the judgment debtor had no estate left upon which it could operate, and so no lien could ever be created under the judgment.

Suppose, in this case, that the premises had- not, upon the first sale, sold for enough to satisfy the second judgment, the Chandlers would still have been judgment creditors as to the portion of their judgment which was unsatisfied; yet, by the sale, the entire lien of that judgment upon the premises would have been lost, as was decided in ex parte Stevens, above referred to, and hence, according to the New York rule, their right of redemption as judgment creditors was gone with it. They could only have redeemed as purchasers, and within twelve months from the date of the sale under the senior judgment. It would have been the same thing under their statute if a third person had purchased and acquired a title under the first sale ; and yet, if such purchaser had allowed the twelve months to expire without redeeming, we can see no good reason why the Chandlers ought not to be allowed to redeem, and thus secure the payment of the balance due on their judgment. The purchaser at their sale who, although he had the first right to redeem, having neglected to avail himself of it, could not complain, for he could not be prejudiced, and the purchaser under the senior judgment would have no more right to complain than as if there had been no sale under the second judgment, for by that sale his rights were not diminished, nor should they be augmented. All the reasons which could be urged in support of the right of the Chandlers to redeem, for the unsatisfied portion of their judgment, apply with equal-force in favor of the right of the junior judgment creditor to redeem, in this case. They would be judgment creditors, and so was he. His lien had been extinguished, and so was theirs. Harrison vs. Deggert, 8 John., 393; ex parte Stevens, 4 Cowen, 133. Their claim would be no more meritorious than his. Both would be equally within the words of the statute.

It was urged, with great apparent plausibility, that before the execution on Hughs’ judgment was levied on these premises, they had ceased to be the “ lands, tenements or real estate” of the judgment debtor, by the sale under the Chandler judgment, and that it is only where the defendant’s estate has been sold, and there is some interest of the defendant upon which the redeeming creditor’s execution can be levied, that the latter is authorized to redeem and again sell the premises. But it was satisfactorily answered, that the judgment creditor can never redeem until the judgment debtor’s rights are entirely gone, by the expiration of the twelve months within which he might have redeemed. The redemption, therefore, is never of the defendant’s present estate, nor is the sale under the junior judgment of the defendant’s interest. The whole proceeding is the exercise of a statutory right, which has been provided as well for the benefit of the judgment creditors generally as of the debtor. But the words of the act authorizing the redemption, as well as the whole scope and intention of the law, answer the objection. The fourteenth section authorizes any judgment creditor to redeem “from the sale of any lands or tenements under the provisions of the preceding sections,” &c. The generality of these words would seem to make it immaterial whether the creditor had any remaining interest in the premises or not.

The New York Courts have given their statute a most liberal construction, so as to extend the right of redemption as far as possible, (ea; parte Perry Iron Co., 7 Cowen, 540,) and we should not deny the right to the party whose case is within the words of the act and the manifest objects of the law. The question undoubtedly is an important one, as calling upon us, for the first time, to construe a statute which must exercise so important an influence over the rights of parties. It may be that cases may arise in which it will be necessary to limit the very general expressions of this act, but this, we are clear, is not such a case. We do not wish to be understood, however, as deciding any thing beyond the case before us.

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

Judgment reversed.


source: Caselaw Access Project

author: Opinion by Treat, C. J.:

license: Public Domain

text:
    Seth Austin, administrator of Elijah Austin, plaintiff in error, vs. The People of the state of Illinois, for the use of Haney Burr, et al., defendants in error.

      Error to Edgar.

    In an action on a bond, the jury must find as well the amount of the debt as the damages, and the proper judgment is, that the plaintiff recover the amount of debt found to be discharged by the payment of the damages and costs.
    This was an action of debt, brought by the defendants in error against Austin, on a guardian’s bond. The penalty of the bond, as described in the declaration, was $600. The cause was heard at the May term, 1845, of the Edgar Circuit Court. The jury found the defendant guilty,' and assessed the plaintiffs’ damages at $636 47. The plaintiffs, at that term, remitted $36 47, and judgment was rendered for $600 debt, and $600 damages. The damages laid in the declaration were $500. Defendant pleaded non est factum and nil debet. At the succeeding October term, the plaintiffs remitted a further sum of one hundred dollars.
    S. T. Logan and C. Emerson, for plaintiff in error.
    Lincoln & Herndon, for defendants in error.
   Opinion by Treat, C. J.:

The cases of Frazier vs. Laughlin, 1 Gilman, 347, and Hinckley vs. West, 4 Gilman, 136, are directly in point, and decisive of this case. The debt was not admitted by the pleadings. It was, therefore, the duty of the jury to have found as well the amount of the debt as the damages. This is regarded as a matter of substance, and not of form. The proper judgment for the plaintiff in such an action is, that he recover the amount of the debt found by the jury, to be discharged by the payment of the damages and costs. The verdict was not broad enough to sustain such a judgment.

The judgment of the Circuit Court must be reversed, and the cause remanded for further proceedings.

Judgment reversed.


text:
    Albert Tibbetts, appellant, vs. Jeremiah Job, et al., appellees.

      Appeal from Madison.

    If a party rebuts the presumption arising from tbe Auditor's deed, that land sold for taxes has been duly listed, the party claiming under such deed must prove, affirmatively, that the revenue laws in relation to the listing of land for taxation have been complied with.
    A listing of lands in one class did not authorize the Auditorio charge the land with taxes in a different class. The classification of the land was the basis of the right to charge and collect the taxes, and that must be strictly pursued.
    This was an action of ejectment, brought in the Madison Circuit Court, to recover the south fractional half section thirty-three, in township five north, range nine west, of said county.
    The cause was heard before Underwood, Judge, and a jury, at August term, 1849, of said Court. The jury found for the defendants, a motion for a new trial was denied, and the plaintiff below brings the cause to this Court, upon the following agreed state of facts:
    Plaintiff, to sustain his case, introduced a deed from the Auditor to John Dement, of date January 24, 1835, reciting the sale of said land for the sum of three dollars and fifty-one cents, the amount of tax for the year 1832, with interest and costs. It was admitted by defendants, that plaintiff connected himself with Dement’s title for eleven-thirteenths of said land, excepting forty acres to be taken off the east side of said land, which plaintiff did not claim. Defendants admitted possession, claiming title to the whole of the land at the time of suit brought.
    The defendants then offered in evidence the deposition of Thomas H. Campbell, contained in the record of this case when before the Supreme Court at its December term, 1848, together with the diagrams from the Auditor’s office, thereto attached; to the admission of which in evidence to the jury the plaintiff objected. Objection overruled, and deposition read. The plaintiff at the time excepted to the decision of the Court. It was agreed by the parties that the depositions contained in the record, heretofore before the Supreme Court, might be referred to, and taken as part of this record.

      Deposition of Thomas H. Campbell.—I am Auditor of Public Accounts—have held the office since March, 1846—was clerk in said office from February, 1843, to March, 1846. The land in controve-rsy was entered in the book containing a list of the district lands subject to taxation from the year 1828 to 1834, as appears from the diagram marked A, and taxed as is therein represented. Diagram A is correctly copied from the tax book in my office, and contains every thing in said book relating to said land. There is no heading to any of the columns of said book, except for the year’s tax, as is shown in the diagram. The first entry in the diagram is copied from, and is the first entry on page 177, of said book. This land is not listed in any other book for taxation from the year 1828 to 1834. It no where appears in said book that said land was classed or listed as first, second or third rate, unless the figure (1,) in the ninth column of the diagram marked A, checked with red ink, denotes the rate or class.

      Cross Examination.—The figures 204, immediately succeeding the figure (1,) in the ninth column of diagram A, refer to page 204 of Non-resident Land Book C, as will more fully appear by diagram marked B. Diagram B is a correct copy from book C, page 204, so far as relates to the tracts of land therein described. The headings to the columns, as represented by diagram B, are the same as in book C, except that in said book the name of land district is written at the head of some of the pages. The letter A, and the figures 7 and 108, in the tenth column of diagram B, refer—the letter A to Nonresident Land Book A, figure 7, of said book, and figure 108 refers to page 108, of said book—as will more fully appear by-reference to diagram marked C ; the same being a correct transcript from said pages of said book, so far as relates to the lands described in the diagram. The books from which the diagrams A, B and C are made are the books in which non-resident lands were listed by the Auditor. Figure (1,) in the ninth column of the diagrams marked A and B, in my opinion denotes the rate or class in which the land was listed for taxation. The original lists, with the affidavits accompanying them, furnished by nonresidents previous to the year 1833, are not among the files of my office. Think that for the tax of 1832 this land was not taxed in the first class, on account of the amount of tax charged.

      pages seven (7) and one hundred and eight (108) of non-resident land book marked A, so far as the records in said books relate to the lands therein described—the other lands described in said book being omitted in the said diagram—and that the headings, ruling, figures, notes, &o., are correctly copied from the books aforesaid. The note in the margin, on page 7, refers to all the lands included in the bracket, part of •which is omitted in the diagram.
    In testimony whereof, I have hereunto subscribed my name, and af[seAL.] fixed the seal of my said office, the day and Year above written. THO. H. CAMPBELL, Auditor P, A.

    Levi Davis, on the part of plaintiff, testified, that he was Auditor of Public Accounts from 1835 to 1841; that there are numerous land books in Auditor’s office ; when one hook is filled up, another is opened. Heading and classification not usually carried forward into the new hooks—only the description of the lands, the name of the patentee, and present owner when known; thinks the figures 1st, 2d and 3d, on the diagrams, indicate the class. After the year 1830, or 1831, thinks alllands were charged with taxes as if in second class ; and rated by the Auditor as of that class, by charging an amouut of tax that would make the land belong to that class, although no figures or marks were used to denote the class, except the amount of tax. As appears from the diagram and witness’ best recollection, and from the amount charged against this tract of land for the year 1832, has no doubt it was charged as of the second class; and the interest and costs added to make up the amount of $3 51. Thinks that the figures $3 51 were not inserted in the book from which the diagram was taken till after the sale, when the amount of taxes, with interest and costs, was put down. Thinks it was not customary, before he was Auditor, to put down in said book the amount of taxes due on any land, except as they were paid ; and all lands on which taxes were not paid were copied into a separate book before sale, and the amount of taxes, interest and costs then was charged in said book, opposite said tract, and sold for the same. That after such sale, the transcript of amount, &c., was entered upon the book from which the diagrams were taken. Has no distinct recollection as to the tract of land in question, hut speaks from his knowledge of the manner business was done in the office while he was Auditor, and from his opinion as to the manner it was done in 1832. Believes there was, before, and during the time he was in office, no other mode of assessment than as before stated, or to charge the amount of taxes from year to year; nothing to show rate of taxation for that year but old books; no evidence from the diagram to show land was classed in second class, except the amount charged, of $3 51; and but for the amount charged, should judge from the diagrams for previous years, that the tract belonged to first class.
    The foregoing was all the testimony in the case.
    Among other instructions, the plaintiff asked the following :
    Although diagram A shows that the proper headings were not placed to this land for 1832, that fact does not prove but that it was properly listed before that time; which said instruction the Court refused to give ; to which decision the plaintiff accepted.
    The plaintiff also excepted to the giving of the second instruction asked for on the part of the defendants, to wit, that if the jur3' believe from the evidence that the land in question was not listed, classed or charged for taxes for the year 1832, till after it was sold for the taxes of that year, and that the amount of the sale was put down opposite the tract of land, as the amount of taxes due upon it, and is the only listing or classification that was ever made of said land for that year, they will find for the defendants.
    H. W. Billings and L. B. Parsons, jr., for appellant.
    J. Gillespie and George Trumbull, with whom were Williams & Lawrence, for appellees.
   Opinion by Treat, C. J.:

The plaintiff read in evidence an Auditor’s deed to John Dement, reciting a sale of the land in question, on the 19th of January, 1833, for the taxes due thereon for the year 1832; and then by proof connected himself with the deed. He thus made out a prima facie case of title.

The defendants produced a deposition of the present Auditor, for the purpose of showing that there had been no valid listing of the land for taxation. The Auditor stated that the diagram A contained all of the evidence to be found in the records and files of his office that the land was listed for the year 1832, or the four preceding years. It appears from this diagram that taxes were charged against the land in each of those years ; but it fails to show any listing or classification of the land, either by the owner or the Auditor. This proof rebutted the presumption, arising from the Auditor’s deed, that the land liad been duly listed, and compelled the plaintiff, in order to sustain the deed, to prove affirmatively a compliance with the requirements ©f the revenue laws in relation to the listing of land for taxation. Graves vs. Bruen, ante, 431.

Whether he succeeded in so doing is the chief question in the case. At his instance, the Auditor attached to his deposition the diagrams B and C. These diagrams embrace the entries made in the books of the office, relating to the land in question, from 1818 \o 1827, inclusive. The most that can be claimed for them is, that the land was listed by Rufus Easton, in the first class, in the year 1819. The Auditor was of the opinion that the land was originally listed in that class, but was charged with taxes in a different class for the year 1832. The plaintiff called a former Auditor as a witness, who testified that, from the best of his recollection, after the year 1830, or 1831, all lands were charged with taxes as of the second class. He concurred in opinion with the present Auditor that the land was originally listed in the first class, but was taxed in another class in 1832,

On this state of case, the jury returned a verdict for the defendants—thereby affirming that there was no listing of the land for 1832, and no prior listing that authorized the sale of the land for the taxes charged against it for that year. In the opinion of the Court they were clearly justified in so finding. It is evident from the amount of tax charged in 1832, that the land was not then considered as belonging to the first class—the class in which it was originally listed for taxation by the owner, if at all, and in which, up to that year, it had been charged with taxes. We look in vain through the evidence for any authority in the Auditor to charge the land with taxes in the second class. If a new classification was not necessary after the passage of the act of the 1st of January, 1831—abolishing the third class— the Auditor was still bound to adhere to the former listing. A listing in one class gave him no power to charge the land with taxes in a different class. The classification is the basis of the right to charge and collect the taxes, and must be strictly pursued. It may be that a new listing was made after 1831, either by the owner or the Auditor; but if so, the proof of it should distinctly appear, and not be left to inference or conjecture.

The judgment of the Circuit Court must be affirmed, with costs.

Judgment affirmed.


text:
    Robert Schuyler, et al., plaintiffs in error, vs. Leicester Hull, defendant in error.

      Error to Pike.

    Whore the defendant in ejectment, in resisting a tax title, repels the presumption by proof that the land in controversy has been duly listed, the plaintiff will be required to prove, affirmatively, that there was such a listing as authorized the Auditor to charge the taxes and sell the land.
    The defendant, Hull, was summoned to answer Robert Schuyler et al., in an action of ejectment, returned to the April term, 1846, of the Pike Circuit Court, brought to recover the possession of the south-east quarter of section thirty-two, in township number four, south of the base line, and in range six, west of the fourth principal meridian, which they claimed to own in fee. A plea of not guilty was interposed.
    At September term, 1849, this cause was tried by the Court, Minshall, Judge, presiding, a jury having been waived, and the Court found the issue joined in favor of the defendant.
    The plaintiffs moved for a new trial, which was denied, and judgment was entered against the plaintiffs for costs. The plaintiffs then filed their bill of exceptions, showing that they produced and read in evidence to the Court a deed éxecuted by the Auditor of state, in due form of law, dated the 31st day of January, A. D. 1834, to Stephen B. Munn, for the land in controversy, in pursuance of a sale of said land made on the 4th day of January, A. D. 1832, by the Auditor of state, for the taxes, interest and costs due thereon, for the year A. D. 1831; which said tax deed has never been recorded in the recorder’s office in the said county of Pike and state of Illinois. The plaintiff also proved that the said Stephen B. Munn had conveyed the said premises, in fee simple, to the plaintiffs, by his deed of conveyance, in due form, and properly executed and acknowledged by him, on the seventh day of December, A. D. 1835, and that said deed and the certificate of acknowledgment were properly recorded in the recorder’s office for said county of Pike, on the 8th day of August, 1836. The plaintiffs then proved that the defendant was in possession of the premises in controversy at the commencement of the suit, and rested their cause.

      The defendant, in order to prove a seven years’ possession of said premises, previous to the commencement of this suit, under a connected title within the limitation law of 1835, produced and read in evidence to the Court a patent from the United States for the land in controversy, to Richard Coming’s, dated the 6th day of January, 1818, duly executed by the President of the United States, and which patent was recorded in the recorder’s office of Pike county on the 14th day of November, A. D. 1839; and also a deed from Richard Comings to Samuel Shaw, for the same land, and dated the 20th day of January, A. D. 1837; which deed and certificates were recorded in the recorder’s office of the county of Pike on the 14th November, A. D. 1839. The defendant also exhibited a deed from Samuel Shaw and his wife to Sewall P. Hart, the landlord of the defendant, dated the 26th day of March, A. D. 1839, duly acknowledged, and conveying to said Hart the land in controversy; which latter deed and certificate were recorded in the proper office. To the introduction of all which title papers plaintiffs excepted, but the Court overruled exceptions. The defendant then proved, that in the fall of the year 1838, said Sewell P. Hart, the grantee in the last mentioned deed, was living on a part of the premises in controversy, as a squatter, and that while so living on a part of said premises in the said year 1838, he contracted with said Shaw for a purchase of said premises, and took a title bond, which was never recorded; that Shaw was to send Hart a deed, which he neglected to do until the spring of 1839. The defendant also proved that said Hart, from the time he so contracted with said Shaw, occupied said land, by himself or tenants, until the commencement of this suit. All which was also excepted to, and exceptions overruled. The defendant then produced and offered to read in evidence to the Court the deposition of Thomas H. Campbell, and a diagram referred to in said deposition marked B.

      The deposition of T. H. Campbell is omitted, but a duplicate of it can be seen ante, page 431, in the case of Graves vs. Bruen.
    The plaintiffs below prosecute this writ of error.
    Browning & Bushnell, for plaintiffs in error.
    Williams & Lawrence, with whom was R. S. Blackwell, for defendant in error.
   Opinion by Treat, C. J.:

The plaintiffs made out a prima facie case, by the production of the Auditor’s deed to Stephen B. Munn, reciting a sale of the premises in question, on the 4th of January, 1832, for the taxes due thereon for the year 1831; and the proof that Munn had regularly conveyed to them. To rebut the presumption, arising from the deed, that the revenue laws had been complied with in the sale of the land, the defendant read in evidence a deposition of the Auditor. He stated that the diagram, attached to his deposition, contained all of the evidence appearing in the records and files of his office, that the land was listed for taxation for the year 1831, or the three preceding years. The diagram shows that taxes were charged against the land: but it wholly fails to show any listing, either by the owner or the Auditor, dui’ing those years. Nor does it furnish the least intimation of a previous listing. This case falls directly within the principles of the decision in the case of Graves vs. Bruen, ante, 431. The proof offered by the defendant repelled the presumption that the land had been duly listed for taxation; and required the plaintiffs to prove affirmatively that there was such a listing as authorized the Auditor to charge the taxes, and sell the land for the non-payment thereof. Failing to offer any evidence to sustain the deed, they were not entitled to recover.

The judgment of the Circuit Court will be affirmed, with costs.

Judgment affirmed.


text:
    JUNE TERM, 1850, AT OTTAWA.
    The President and Managers of the New Hope Delaware Bridge Company, plaintiffs in error, vs. Theodore Perry and Boville Shumway, defendants in error.

      Error to Cook County Court

    Bank notes being negotiable by delivery merely, are not within the operationof our statute, and need not be endorsed, to enable tbe holder of them to maintain an action on them. The possession of such notes is evidence of ownership, unless it he shown that the holder obtained such possession malajida.

      A plea to an action brought against a hank, to recover the amount-of notes issued by it, which recites a contract between the hank and A and B, by the terms of which the bank, on the security of an assignment of $ 90,000 of its stock, loaned $ 60,000 in its notes, to A and B, for one year, who agree to make such use of the notes as would best prevent their return to the bank for redemption, and to provide funds for such of them as should he presented to the bank for payment, <fec., and avers that the notes sued on were delivered to A and B, in pursuance of such contract, were fraudulently delivered by them to the plaintiffs, to be put in suit for the benefit of A and B, does not constitute a bar to a recovery on the notes.
    Sn an action against the maker of a note, made payable on demand, at a particular place, it is not necessary to aver and prove a demand at such place. The readiness to pay at the time and place, may he pleaded in bar of damages and costs.
    This was an action brought by the defendants in error to recover of the plaintiffs in error the amount of certain bank hills, issued by the latter, being an insolvent hanking corporation, in New Jersey. The cause came on to he heard before H. T. Dickey, Judge of the Cook County Court, and a jury, at May term, 1849, and a verdict found and judgment rendered for plaintiffs below, for the sum of $ 8,017. The questions submitted to and adjudicated by the Court, are sufficiently stated in the opinion.

      Arnold & Lay, for plaintiffs in error.
    Larned and Bentley, for defendants in error.
   Opinion by Treat, C. J.:

The principal question in this case is, whether the holder of bank notes, made payable to bearer, or to a particular person or bearer, can maintain an action on the notes against the corporation issuing them. The statute provides that, all promissory notes, bonds, due-bills and other instruments in writing, made or to be made, by any person or persons, body politic or corporate, whereby such person or persons promise or agree to pay any sum of money or articles of personal property, or any sum of money in personal property, or acknowledge any sum of money or article of personal property to be due to any other person or persons, shall be taken to be due and payable; and the sum of money or article of personal property therein mentioned, shall, by virtue thereof, be due and payable to the person or per-s ms to whom the said note, bond, bill or other instrument in writing is made. Any such note, bond, bill or other instrument in writing, made payable to any person or persons, shall be assignable, by indorsement thereon, under the hand or hands of such person or persons, and of his, her or their assignee or assignees, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee or assignees successively.” R. S. ch. 78, secs. 3 and 4. It was decided by this Court, in the case of Hilborn vs. Artis, 3 Scammon, 344, that, under this statute, a promissory note, payable to a particular person or bearer, could not be transferred by delivery merely, so as to authorize the holder to sue thereon in his own name ; in other words, that an action on the note could only be maintained in the name of the payee, or the person to whom it had been transferred by indorsement. The note, in that case, was one made in the ordinary course of business between individuals. It is contended that bank notes are equally within the provisions of the statute, and consequently subject to the decision in Hilborn vs. Artis. We purposely forbear, at this time, any discussion respecting that decision, as the result of this case does not at all depend on its correctness. The statute of 3d and 4th Anne, ch. 9, which made promissory notes transferable in the same manner as bills of exchange were, by the custom of merchants, was never in force in this state. R. S. ch. 62, sec. 1. Hence the necessity of our statute, in order to render promissory notes negotiable. Without the aid of legislation, they could not be so transferred as to vest the legal interest in the assignee. The object of the statute was to put promissory notes, as respects their negotiability, on the footing of bills of exchange. Such was the scope and design of its provisions. It is a remedial, not a restraining statute. It applies only to instruments that were not negotiable by the common law, or the custom of merchants. Bank notes were negotiable at common law, without reference to any British statute. They were regarded as cash, and passed from hand to hand, without any other evidence of title in the holder than what arose from the possession. In the leading case of Miller vs. Race, 1 Burrow, 452, it was decided that a bank note, though stolen from the owner, became absolutely the property of the party who had received it for value, without notice of the robbery. Lord Mansfield, in delivering the judgment of the Court, said : It has been very ingeniously argued by Sir Richard Lloyd, for the defendant. But the whole fallacy of the argument turns upon comparing bank notes to what they do not resemble, and what they ought not to be compared to, viz : to goods, or to securities, or documents for debts. Now they are not goods, not securities, norMocuments for debts; nor are so esteemed, but are treated as money, as cash, in the ordinary course and transaction of business, by the general consent of mankind; which gives them the credit and currency of money, to all intents and purposes. They are as much money as guineas themselves are, or any other current coin, that is used in common payments, as money or cash. They pass by a will, which bequeaths all the testator’s money or cash, and are never considered as securities for money, but as money itself. Upon Lord Ailsbury’s will, £ 900 in bank notes was considered as cash. On payment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes. So on bankruptcies, they cannot be followed as identical and distinguishable from money, but are always considered as money or cash.” See, also, to the same effect, 1 Salkeld, 126, pl. 5; and Wright vs. Reed, 3 Durnford & East, 554. Banknotes, then, being negotiable by the common law, by delivery merely, are not within the operation of our statute. The possession of such notes affords prima facie evidence of title in the holder; and he is entitled to maintain an action on them, unless it is shown that he obtained the possession mala fide.

The next question relates to the sufficiency of the second plea, as amended. This plea recites a contract between the bank and Curtiss & Mitchell, by the terms of which, the bank, on the security of the assignment of $ 90,000 of its stock, loaned $ 60,000, in its notes, for one year, to Curtiss & Mitchell, who agreed to make such use of the notes as would best prevent their return to the bank for redemption, and provide funds to redeem such of them as should be presented for payment; and the bank was to pay an interest of six per cent, on all sums deposited with it for the redemption of the notes until used for that purpose, and Curtiss & Mitchell were to pay three per cent, interest on all the notes put in circulation by them. The plea then alleges, that the notes sued on were received by Curtiss & Mitchell in pursuance of the contract, who, instead of putting them in circulation, in the manner best calculated to prevent their return to the bank, and providing funds for their redemption, fraudulently delivered them to the plaintiffs, by whom they were so received, for the purpose of being put in suit against the bank, in the name of the plaintiffs, but for the exclusive benefit of Curtiss & Mitchell. In our opinion, the facts stated in the plea constitute no bar to a recovery on the notes. By their delivery under the contract, the notes became the property of Curtiss & Mitchell. As the owners, they had the legal right to dispose of them in any way they pleased. The fact that they did not fulfil the stipulations of the contract, which were to be performed after the receipt of the notes, did not divest them of their title, nor disable them from transferring that title to others. The notes were loaned to Curtiss & Mitchell, as so much cash, not deposited with them for a special purpose. The delivery was absolute, not qualified; the title was complete, not conditional. The title carried with it a present legal right of action against the bank. If Curtiss & Mitchell failed to perform the covenants in the contract, they are liable to the bank for the damages it sustained thereby; but the breach of those covenants cannot be pleaded in bar of an action on the notes. It may be that the damages could be set up by way of set-off, if this suit was, in fact, brought for the benefit of Curtiss & Mitchell. But that question is not presented. The plea attempts to defeat the action solely on the ground that Curtiss & Mitchell have not complied with some of the stipulations of the contract— stipulations that were to be performed after their title to the notes was acquired, and upon the fulfilment of which the continuance of that title in no degree depended.

There is another question reserved on the record. Some of the notes are payable on demand, at the office of the bank; and, as to them, it is insisted, that no cause of action can accrue until the notes have been there presented and payment demanded. It is well settled in this country that, in an action against the maker of a note, made payable at a particular place, it is not necessary to aver or prove a demand of payment at such place. If the maker was ready at the time and place to make payment, he may plead that fact as he would plead a tender, in bar of damages and costs, by bringing the money into Court. Butter-field vs. Kinzie, 1 Scammon, 445: Wallace vs. McConnell, 13 Peters, 136; Caldwell vs. Cassidy, 8 Cowen, 271; Ruggles vs. Patten, 8 Mass., 480. Nor is a presentment necessary on a bank note, payable on demand at a particular place. The bringing of a suit is a sufficient demand of payment. If the bank, in such case, shows that it was ready to make payment at the place, when the suit was commenced, and brings the money into Court, it discharges itself from interest and costs. Haxton vs. Bishop, 3 Wendell, 13.

We are satisfied with all of the rulings of the County Court, and affirm its judgment, with costs.

Judgment affirmed.


author: Opinion by Mr. Justice Trumbull :

text:
    David Humphreys, plaintiff in error, vs. Henry Matthews, defendant in error.

      Error to Cook.

    The benefit of the attachment act is not confined to any particular form of action. It is applicable to actions of account,- and joint tenants, tenants in common, and co-parceners may enforce rights under it.

      Humphreys sued out an attachment against Matthews, returnable into the Cook Circuit Court, upon an affidavit, in substance, as follows : That in the year 1846 the plaintiff and defendant purchased 3,682 bushels of wheat, on joint account. That said wheat was sent to Oswego, in the state of New York, by agreement, and was there received by the defendant, upon an agreement with plaintiff that said defendant would have the wheat ground and turned into flour. In consideration for which it was agreed that defendant should receive out of the wheat, for himself, all that should not be required to produce 736 barrels of flour; the defendant agreeing to produce that number of barrels of flour, of superfine quality, and to sell the same, free from any charge for storage at Oswego, for the joint profit of both, and to render a just account of the sale of the flour—plaintiff to have one half of the proceeds. That plaintiff, on the 23d of July, 1847, received from defendant a letter, containing the account of sales of the flour. That said flour had been sold on joint account in the cities of Troy and Boston. That the flour was sold during the month of May, 1847, and after the fifteenth of the month. That the average value of flour in the city of Troy, at that time, as near as can be ascertained, was not less than eight dollars per barrel, and that its value in Boston, on the 29th of May, was $ 8 25 per barrel. That defendant represented to plaintiff that 220 barrels of the flour were sold in Troy and the residue in Boston. That all expenses incurred in the sale of said flour, “as near as can be ascertained,” did not exceed $ 800, after deducting which from the proceeds of the sales of the flour, the remainder should be divided between them. That defendent has never paid to the plaintiff to exceed $ 2,546 08, for his share of the nett proceeds of the flour. “ By means of all which, said plaintiff deposes and says, that the said defendant is indebted to the said plaintiff in the sum of four hundred and fifty-three dollars and fifty-four cents; and said plaintiff further deposes and says, that said Henry Matthews, the said defendant, is not a resident of the state of Illinois.” Upon the return of the attachment, a motion was made to dismiss it, upon the insufficiency of the affidavit upon which it was founded; which motion, Judge Thomas presiding, was sustained, at the June term, 1848, and the attachment dismissed. Humphreys brings the cause to this Court, and assigns for error the dismissal of the attachment.
    J. M. Wilson and E. W. Tracy, for plaintiff in error.
    N. B. Judd and Manniere & Meeker, for defendant in error.
   Opinion by Mr. Justice Trumbull :

Can an action of account be commenced by attachment, and if so, was the affidavit upon which the writ in this case issued sufficient P

The Circuit Court, on motion of the defendant, dismissed the proceeding, and that decision is now assigned for error.

Our attachment act is very broad, and the benefit of its provisions is not confined to any particular form of action. Any creditor is authorized, under certain circumstances, to sue out an attachment, and the statute is silent as to the nature or form of the action in which the writ may issue. The law was designed to furnish a creditor with the means of collecting his debt, in a case where he would be unable to do so in the ordinary mode of proceeding, and we can see no reason why it should not be as applicable to actions of account as to any other class of cases. The claim of a joint tenant, tenant in common or co-parcener is just as sacred as that of any other creditor; and because he cannot resort to the more usual common law actions to enforce his rights, affords no reason why he should be deprived of the benefit of the attachment act, when he presents a case that would authorize an attachment, were he permitted to sue in debt or assumpsit.

As to the sufficiency of the affidavit, there can be no question. After setting forth the dealings between the parties, and the nature of the indebtedness, with great particularity, it alleges that the defendant, by means of the premises, is indebted to the plaintiff in the sum of four hundred and fifty-three dollars and fifty-four cents, and that said defendant is not a resident of the state. Upon such an affidavit an attachment may properly issue.

The judgment of the Circuit Court, dismissing the attachment, is reversed, and the cause remanded, at the costs of the defendant in error. Judgment reversed.


text:
    Alfred Haddock, for the use of B. W. Raymond et al., plaintiff in error, vs. James Waterman, defendant in error.

      Error to Kane.

    The right of jurisdiction depends upon facts existing in the county in which it is exercised.
    When the right to entertain a suit and send abroad process is once established, by proper averments in the declaration, the presumption is, that the process was sent to the proper county.
    When the right to commence a suit in a particular county depends upon residence, it must he averred; but when that right depends upon other facts, these must be averred in the declaration, and then the residence need not be averred.
    The plaintiff in error commenced an action of assumpsit in the Kane Circuit Court, to recover $ 150, and sent his process to the sheriff of DeKalb county to execute, which was returned served on the defendant in error. Judgment by default was entered against the defendant, at the April term of the Kane Circuit Court, for the amount claimed. At the same term defendant entered his motion in arrest of judgment, on the ground that the Court had not jurisdiction over the defendant, because there was not an averment in the declaration as to the residence of the defendant. The declaration averred, that the cause of action accrued in Kane county, and that the plaintiff resided in that county at the commencement of the suit. The Court, Theophilus S. Dickey, Judge, sustained the motion, and arrested the judgment. To this the plaintiff excepted, and brought his writ of error.
    That portion of the practice act, under which this question arises, is as follows : “ It shall not be lawful for any plaintiff to sue a defendant out of the county where the latter resides, or may be found, except in cases where the debt, contract or cause of action accrued in the county of the plaintiff, or where the contract may have specifically been made payable; when it shall be lawful to sue in such county, and process may issue against the defendant to the sheriff of the county where he resides. And in every species of personal actions, in law or equity, when there is more than one defendant, the plaintiff, commencing his action where either of them resides, may have a writ or writs issued, directed to any county or counties where the other defendants or either of them may be found.”

      I. G. Wilson, for plaintiff in error, cited Rev. Stat., ch. 88; 1 Scam., 57; ibid, 539; ibid, 405 ; 5 Gilman, 546.
    Glover & Cook, for defendant in error, cited 3 Scam., 133 ; 1 Scam., 56; 4 Scam., 302; 1 Scam., 403; 2 Scam., 259; 1 Gilm., 33, 4 Gilm., 546.
   Opinion by Mr. Justice Catón :

The declaration in the case of Gillit vs. Stone, 1 Scam., 539, was precisely like this, and there the averments were held sufficient to give the Court jurisdiction; and we are disposed to adhere to that decision. But it is supposed that that case was overruled by the subsequent one of Semple vs. Anderson, 4 Gilm., 546. It was not so understood or intended by the Court, in making the latter decision. Although, in the opinion of the Court, the former case is not particularly mentioned and commented upon, yet it could not have been overlooked, for it was pressed upon the consideration of the Court, at considerable length, in the argument of the counsel for the defendant in error, as will be seen on page 553 of the report. The decision in this case professed to be in accordance with all the previous decisions on this subject; and, certainly, it was not intended to overrule any thing which had previously been determined. The decisions in these cases can only be reconciled upon the ground that the right of jurisdiction does not depend upon the existence of any fact beyond the county where the suit is brought, but exclusively upon facts existing in the county where the jurisdiction is exercised. What is the right of jurisdiction, as here understood ? It is simply the right to entertain the suit of a plaintiff in one county, and to send the process of the Court to reach a defendant beyond that county. When the right to entertain the suit and send abroad the process is once established by proper averments in the declaration, the presumption is, that the process was sent to the proper place; or, in other words, when the jurisdiction is once established, the presumption will be, that the jurisdiction is properly exercised.

Three classes of cases are provided for in sec. 2, ch. 83, R. S., in which the Court may send its process beyond its immediate ordinary jurisdiction. In the first, two facts must concur, and be averred in the declaration, to confer this authority; while in the last, but one fact is required to exist; which must also be averred. The first is, where the suit is brought against a defendant who does not reside in the county where the suit is instituted. In that case it is required to be averred, to give the Court jurisdiction, that the suit is brought in the county of the plaintiff, and also that the contract or cause of action accrued there. These facts, and these alone, are required by the statute to exist, to authorize the commencement of the suit and sending the process beyond the county; and the case of Gillet vs. Stone decides that the declaration need only state these facts; and the cases of Clark vs. Harkness, 1 Scam., 56; Key vs. Collins, ibid, 403; Shepherd vs. Ogden, 2 Scam., 259; Wakeful vs. Grundy, 3 Scam., 133; Brown vs. Bodwell, 4 Scam., 302, and Clark vs. Clark, 1 Gilm., 33, determine that these facts must be averred. The second case provided for is, where the contract upon which the suit is brought is specifically made payable in a particular county. In that event, the suit may be commenced in that county, irrespective of the residence of any of the parties, and the process may be sent to a foreign county. The case of Key vs. Collins, and some of the other cases referred to, show that only one fact need be averred in the declaration, to give the jurisdiction. The third case is, where the suit is brought against two or more defendants, residing in different counties, when the action may be brought in a county where either of them resides, when the process may be sent beyond the county to reach the other defendants. Here the jurisdiction, or right to entertain the suit and send abroad the process, depends upon the existence of but one fact, and that is, that one of the defendants resides in the county where the suit is brought. The case of Semple vs. Anderson decides that this one fact, upon which the jurisdiction of the Court thus depends, must be averred in the declaration. How, it will he observed, that upon the existence of certain facts within the county, the statute authorizes the commencement of the suit there, and the issuing of process to another county; and the principle of all these cases seems to be, that the declaration must aver the existence of these facts within the county, and that it is unnecessary to aver the existence of any fact beyond that county, and upon which the right to commence the action is not made to depend. It is true that the statute also states where the process may go—that is, in the first case, to the county where the absent defendant resides, and, in the second case, to the county where the absent defendant may be found. But the eases show that the residence of the absent defendant, to reach whom the process is issued, need not be averred; and this must be upon the ground, as before intimated, that the facts being shown which confer the jurisdiction to entertain the suit and issue the process, the presumption is, that the jurisdiction is properly exercised by issuing the process to the place authorized by law. In this very case it is objected, that the declaration does not show that the defendant was a resident of the county to which the process was sent, although both the facts which the statute requires to authorize the commencement of the suit, are shown to exist. Should we sustain this objection, then, by the same rule, it would be necessary, when a suit is brought under the other clause of the statute, to hold that the declaration should aver, in addition to the fact required in the case of Semple vs. Anderson, that the absent defendant was or would be found in the county to which the process issued. It was urged that, as in Semple vs. Anderson, the return of service upon Semple in St. Clair county was not sufficient to show that he resided there, so as to dispense with the averment of that fact in the declaration, so here the service upon Waterman should not be held sufficient to show that he was a resident of the county where he was served. But the question is one of pleading and not of evidence. Admitting that the service might be considered proof of Semple’s residence, still that would not dispense with the averment of that fact in the declaration, as his residence in that county was the fact upon which the plaintiff’s right to bring his suit in that county depended. Hence the necessity of averring it in the pleading. Not so here. This suit is brought under the other clause of the statute, and the right to bring it depended upon other facts than the residence of the defendant, which are averred in the declaration. Had they not been averred, no proof of their existence would suffice. Where the right to commence the suit depends upon residence, then it must be averred. But when that right depends upon other facts, then the residence need not be averred, but only those other facts. The propriety of this distinction we will not stop to investigate. It is sufficient that we find it indicated by the decisions. Were the question before us for the first time, we might and prohahly should follow the rule as indicated in the case of Foot vs. Stevens, 17 Wend., 483, and hold that none of these averments were necessary, upon the familiar principle that every presumption is in favor of the jurisdiction and proceedings of superior Courts of general jurisdiction. But as it is, we think it our duty to follow the previous decisions which govern this case. The rule, however, which they prescribe, we are certainly not disposed to extend, and require other averments than have been formerly held necessary. As a question of practice, one rule may be as well as another on this subject, and it is far better that rules of practice, when once settled by the tribunal of last resort, should be adhered to, than to keep them constantly fluctuating and uncertain.

Let the judgment be reversed, with costs, and the cause remanded.

Judgment reversed.


text:
    The People of the State of Illinois, on the relation of William Davenport, appellants, vs. Welcome B. Brown, Judge, William E. Buckingham and William C. Poynter, Associate Justices, and Edgar Babcock, Clerk of the County Court of Woodford County, appellees.

      Appeal from Woodford.

    The right of a county to adopt township organization, under the provision of our constitution, is expressly made to depend upon an affirmative vote of a majority of all the citizens within the county, entitled to vote on the question.
    The Legislature does not possess the power to provide any other mode of township organization, than under and by virtue of the sixth section of the seventh article of the constitution.
    The power of the County Court over the business of a county, continues until the township organization is adopted, by an affirmative vote of a majority of all the legal voters of a county.
    The law of the twelfth of February, 1849, is in full force in such counties as have adopted the township organization, by a majority of all the legal voters of the counties.
    That portion of the fourth section of the township law, which is inconsistent with the constitution, may be disregarded, without invalidating the whole law.
    This was a petition for a peremptory mandamus, filed by the appellants, to the end that the county judge of Woodford county, and his associate justices and their clerk, might be commanded to make and transmit an abstract of the votes, &c., of that county, to the Auditor of state, and that notices, &c., be given, designating a suitable time and place for holding an election in each of the towns of said county, for the purpose of organizing the same, &c.
    The appellees, on showing cause, denied that a majority of the votes of those entitled to vote upon the question, had been cast for township organization. That at the general election at which the votes upon the question were given, upwards of six hundred legal votes were cast, and that only one hundred and fifty-three of the number were for township organization.
    Upon a hearing of the parties, the Court, Davis, Judge, presiding, denied the petition; thereupon the relator prayed this appeal. Other questions were raised by the petition and answer, but as they were not considered in the opinion, reference will not be made to them. The error assigned was, the judgment of the Court dismissing the petition.
    O. Peters, for appellants.
    N. H. Purple, for appellees.
   Opinion by Treat, C. J.:

The sixth section of the seventh article of the constitution declares, that “ The General Assembly shall provide, by a general law, for a township organization, under which any county may organize, whenever a majority of the voters of such county, at any general election, shall so determine; and whenever any county shall adopt a township organization, so much of this constitution as provides for the management of the fiscal concerns of the said county by the County Court, may be dispensed with ; and the affairs of said county may be transacted in such manner as the General Assembly may provide.”

On the 12th of February, 1849, the Legislature passed a law, entitled “An act to provide for township and county organization, under which any county may organize whenever a majority of voters of such county, at any general election, shall so determine.” The first section of the act provides, “ that at the next general election to be held in the several counties in this state, the qualified voters of each county may vote for or against township organization in their respective counties.” The fourth section declares, that if it shall appear by the returns of said election that a majority of all the votes cast for or against township organization is for the township organization, the county so voting in favor of its adoption shall be governed by and subject to the provisions of this act, on and after the first Tuesday in April, 1850.”

At the ensuing general election, in the county of Woodford, one hundred and fifty-three votes were given for, and one hundred and seven votes against township organization, while more than six hundred votes were cast in the county.

The question arises on this state of case, whether the township organization was legally adopted by the people of that county. The section of the constitution before recited is free from all doubt or uncertainty. The language is clear and explicit, and admits of but one meaning. It does not mean a majority of those voting on the question to be submitted, but a majority of all the legal voters of the county. The right of a county to organize, under a law to be passed in pursuance of this provision of the constitution, is made expressly to depend upon an affirmative vote of a majority of all the citizens of the county entitled to vote on the question. But one-fourth of the voters of Woodford county cast their suffrages in favor of township organization. It is clear, therefore, that the township law has not been legally adopted in that county.

The fourth section of the township law, in terms, only requires an affirmative vote of a majority of those voting on the question. This provision, not being as broad as the requirement of the constitution, cannot for a moment be sustained, if the validity of the law is to depend on its being in accordance with the constitution. If such be the case, an affirmative vote of a majority of the legal voters of a county is absolutely necessary, in order to give any vitality to the township law in respect to such county.

But it is insisted that the Legislature had full power to enact the law in question, independent of the provisions of the constitution. It is said that this section of the constitution is mandatory to the Legislature to enact a particular law, and submit it to the people of each county for adoption or rejection, and is not in exclusion of the power of the Legislature to pass any other law upon the same subject matter. It would seem to be very apparent from the peculiar title of the act, and the fact of the submission of the question of township organization to the people of each county, that the Legislature designed to act in obedience to this provision of the constitution. But, be that as it may, we will proceed to inquire whether the Legislature possesses any authority to provide any other mode of township organization, than under and by virtue of this section of the constitution. A state constitution is not considered as a grant of powers to the Legislature, but rather as a limitation upon its powers. As a general principle, a Legislature may lawfully exercise all powers that are not expressly or by necessary implication forbidden by the constitution of the state, or inhibited by the constitution of the United States. Are there any restrictions in our constitution in the way of the exercise of the powers claimed for the Legislature ? A bare reference to some of the provisions of the constitution will only be necessary for a satisfactory solution of this question. The second article of the constitution is as follows : “ The powers of the government of the state of Illinois shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. No person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted; and all acts in contravention of this section shall be void.” The first section of the fifth article provides, that “The judicial power of this state shall be and is hereby vested in one Supreme Court, in Circuit Courts, in County Courts, and in justices of the peace;” and the nineteenth section of the same article declares, that “ The county judge, with such justices of the peace in each county as may be designated by law, shall' hold terms for the transaction of county business, and shall perform such other duties as the General Assembly shall prescribe.”

In the distribution of powers among the different departments of the government, the jurisdiction over the county business is vested in the County Court. The Court is created and its jurisdiction conferred by the constitution. The jurisdiction cannot be taken away from the Court, nor transferred to any other tribunal, except in the mode prescribed by the constitution. The fifteenth and sixteenth articles of the township law confer on the board of supervisors, to be chosen from the several towns in a county, all of the powers and jurisdiction over the business concerns of the county, which were previously vested in and exercised by the County Court. The latter Court, established by the constitution for the purpose of transacting the county business, is superseded by the provisions of this law, and ceases, for such purpose, to have any further existence. The leading object of the township organization is to place these powers under the control and direction of another tribunal.

By a recurrence to the provisions of the sixth section of the seventh article of the constitution, it will be seen, that the constitution, after creating the County Court and confiding to it the management of the county business, has prescribed the modem which that jurisdiction may be divested. The jurisdiction may be dispensed with and conferred on such other tribunal as the Legislature may direct, whenever the township organization contemplated by the constitution shall be adopted. But until such an organization is effected, the jurisdiction over the business affairs of the county remains in the County Court, and cannot be lawfully exercised by any other tribunal. It can no more be assumed by the Legislature and transferred to a different tribunal, than can the powers properly belonging to the Legislature be assumed and exercised by the executive or judicial departments of the government. The power of the County Court over the business of a county continues until the township organization is adopted by an affirmative vote of a majority of all the legal voters of the county. Such a vote is, by the constitution, made a condition precedent to the divesting of the jurisdiction of the County Court, and the exercise of any power by the Legislature to vest that jurisdiction in the board of supervisors of a county, or the local authorities of the town. As respects the county of Woodford, the contingency has not happened. Its County Court is not divested of jurisdiction. The township law has no operation within its limits.

It is the opinion of the Court, that the Legislature cannot constitutionally pass any law providing for a township organization, that will operate to change or affect the jurisdiction of the County Court over county business, until the law has been submitted to the people, and adopted by an affirmative vote of a majority of all the legal voters of a county.

It is also the opinion of the Court, that the law of the 12th of February, 1849, is in full force in such counties as have adopted the township organization by a majority of their legal voters. That portion of the fourth section of the township law which is inconsistent with the constitution, may be entirely disregarded, without invalidating the whole law.

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

Judgment affirmed.


text:
    Robert Bloomer, appellant, vs. John Sherrill, appellee.

      Jippeal from Jo 'D'aviess.

    J.n order to reverse a judgment, because tbe testimony' a particular witness was excludes? from the jury, it must be shown that the testimony was material.
    When the Court lays down the law by which the jury ars to be governed in their deliberations, he must instruct them in writing.
    This was an action of trespass, for assault and battery, brought by the appellee against the appellant, and heard before •Sheldon, Judge, and a jury, at March term, 1850, and a verdict and judgment for $500. The defendant below (Bloomer,) prayed the appeal.
    J. P. Hoge, for appellant.
    J. P. Stevens, for appellee.
   Opinion by Mr. Justice Catón :

Had the testimony of the witness, Byrne, been allowed to remain before the jury, we should not have complained \ and yet we cannot say that the Court erred in withdrawing it from them as immaterial. It is true, that great latitude is allowed on both sides, in cases of this kind, in the evidence to be admitted, calculated to affect the question of damages ; yet even here, testimony, the materiality of which cannot be pointed out, should be rejected. The testimony of the plaintiff below, showed that the defendant had pushed him down and broken or dislocated one of his wrists, by reason of which he was sick and unable to work for several months; and it may be that, to some extent, the injury was permanent. Byrne testified, that some time after the assault, the plaintiff showed him a lump or knot above the elbow, on one of his arms, which was the consequence of an injury he had received by falling against the door post, while working for Leiginger, but there is no pretence that the plaintiff complained of any inconvenience from that hurt, or that the injury ever had been in any degree serious. Sherrill had worked for Leiginger, both before and since the assault for which the suit was brought was committed; and whether he fell against the door post before or after that assault was committed, does not appear. It may have been years before the assault, or but a few days before the conversation. At most, it could only have been a flesh wound, and no jury would have been authorized to find, from the testimony of Byrne, that it had produced a permanent injury. Besides, it does not even appear that it was on the same arm, the wrist of which had been broken or dislocated by Bloomer. What argument could have been urged upon this testimony, had it been admitted ? Was it designed to show that Sherrill was in the habit of falling and hurting himself? Admitted, and the case is not helped, for it is certain that upon this occasion he did not fall accidentally, but that Bloomer pushed him down. Was it designed to show that the permanent injury complained of might have originated in the fall against the door post? As before remarked, the evidence was not of such a character as would warrant that conclusion. A verdict affirming that fact from this evidence could never be seriously asked. We cannot appreciate any legitimate bearing which this evidence could have had upon the finding of the jury; and yet to reverse this judgment, we must be able to say that it was material, and to point out its materiality. This we cannot do, and hence we cannot say that the Court erred in rejecting it.

The statute requiring the instructions to the jury to be given in writing, did not require the Circuit Court to deliver a written opinion, in deciding the motion of the plaintiff to exclude this testimony from the jury. This question merely concerned the admissibility of evidence, and had nothing to do with the law, as applicable to the evidence before them for consideration. When the Court lays down the law by which the jury are to be governed in their deliberations, then he must instruct them in writing.

The injury was a serious one, and we cannot say that the damages were assessed so high as to call upon this Court to interfere, because they were excessive.

The judgment of the Circuit Court must be affirmed, with costs.

Judgment affirmed.


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    Justin Butterfield, appellant, vs. George W. Smith, appellee.

      Appeal from Cook County Court.

    A quit-claim deed is as effectual for the purpose of transferring real estate as a deed of bargain and sale, unless there are words in the deed showing an intention on the part of the grantor to mate limitations to his conveyance; if there are, then the grantee is bound by all the limitations it contains.
    This was an action of ejectment, brought by appellant to recover thirty-five acres of the west half of the south-east quarter of section two, in town thirty-nine north, range twelve, in Cook county: described by metes and bounds. The cause came on to be heard at the May term of the Cook County Court, in the year 1848, before Hugh T. Dickey, Judge, and a jury. A verdict was found for the defendant. Both parties adduced title from the same source, to wit, George E. Walker. The plaintiff below prayed this appeal. The opinion of the Court exhibits enough of the case to elucidate the questions involved.
    N. H. Purple and E. W. Tract, for appellant.
    John C. Champlin and P. Ballingall, for appellee.
   Opinion by Mr. Justice Trumbull :

Walker, who had once owned the land in controversy, by a quit-claim deed, dated January 1, 1844, and recorded January 20, 1844, released his interest in the same, and some fifteen other tracts, to one George Smith, under whom the plaintiff claims. The deed is in the usual form of quit-claim deeds, conveying all the right, title and interest of the grantor in the land's described, except that after the description of the lands, it contains this clause : Intending to convey such only as are now owned by said Walker, and not any that may have been conveyed to any one else.”

The defendant gave in evidence a deed of bargain and sale, with covenants of warranty, from Walker to E. D. Taylor and others, embracing the land sued for, dated May 13, 1837, but not recorded. In the County Court the defendant had judgment. Unless Taylor and others were required to record their deed, as a protection against the subsequent quit-claim, under which plaintiff claims, the judgment must stand. To determine that question, it is only necessary to look to the language of the quitclaim deed, and ascertain what was intended to be conveyed by it. Such a deed is just as effectual for the purpose of transferring real estate, as a deed of bargain and sale; and had there been no words in the deed under consideration, showing an intention on the part of the grantor not to convey the land in question, there can be no doubt that the plaintiff would have been entitled to recover. The deed, however, contains a clause showing that the grantor did not intend to transfer by it any interest in lands which he had previously conveyed. It was competent for the grantor to insert such a limitation in the deed; and the grantee, by accepting such a deed, is bound by all the limitations it contains. The intention of the parties is the polar star by which Courts are always to be guided in the construction of contracts ; and can there be any question that Walker did not intend by his quit-claim deed to convey any land which he did not then own, or which might have been conveyed to any one else, when he has expressed that intention in the deed itself, as clearly as language could make it? It is clear, therefore, that no interest in the land in question passed by the quit-claim deed, because Walker had previously conveyed the same land to Taylor and others. He says that it was his intention to convey only such lands described in the quit-claim deed as he then owned, and his ownership over the land in controversy was as effectually parted with, as to him, as it would have been if Taylor and others had immediately placed their deed upon record.

To construe the clause under consideration as extending only to such lands as Walker had previously conveyed to persons who had put their deeds upon record, would be to give it no meaning whatever. His second conveyance could in no way affect their rights. It is probable that Walker, being at the time a large operator in lands, did not precisely recollect what tracts he had sold, and hence inserted a clause in his quit-claim deed, that would protect all who had purchased from him, whether their deeds were recorded or not, even though he should make a second conveyance of the same land.

We cannot doubt that it was Walker’s intention not to embrace in his quit-claim deed the land in controversy; and if a proposition so plain needed authorities to support it, it will be found to be abundantly sustained by the cases of Brown vs. Jackson, 3 Wheaton, 449, and McConnell vs. Reed, 4 Scammon, 117.

The judgment of the County Court is affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    Anonymous.
    Where an appeal has not been filed in this Court, within the first three days of the term, the statute is peremptory that damages must be allowed.
    A motion was made, founded upon an affidavit, requesting the Court to remit the damages of five per cent, allowed against the appellant, because he had not filed his record within the first three days of the term.
   Per Curiam.

This motion must be denied. The statute does not leave any discretion in the Court; its language is peremptory. The judgment for five per cent, damages must stand.


text:
    Anonymous.
    Where an attorney sues out a writ of error, without the authority of the parties named as plaintiffs iii the writ, the process will be dismissed at his costs.
   Per Curiam.

This was a motion to dismiss the writ of error, founded upon the affidavits of the plaintiffs in error, setting forth that the process had been issued without their sanction or direction. The motion will be allowed, and the writ dismissed, at the cost of the attorney who sued out the process.


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    Ruel Ambrose et al., appellants, vs. Charles W. Weed et al., appellees; and Anson Root, impleaded with Ruel Ambrose, appellant, vs. Asher Rossitter, appellee.

      Appeal from Kane.

    A levy upon personal property, apparently of sufficient value to satisfy the judgment, is not an absolute satisfaction, but sub modo only ,* for until the levy is disposed of, it cannot be certainly known thatit will produce an absolute satisfaction.
    So where the property is withdrawn from the custody of the officer, by the execution of a delivery bond, and the condition of the bond is not complied with, neither the defendant, nor his surety upon an appeal bond, can set up the levy as a bar to an action upon the appeal bond.
    The perfection of an appeal suspends all proceedings under the judgment.
    The above causes were submitted upon precisely similar questions. The appellees recovered a judgmexxt in the Kane Circuit Court, against Ruel Ambrose, one of the appellants, for the sum of $ 833 32, and on the 23d of April, 1845, execution issued upon said judgment, and was delivered to the sheriff of Kane county; by virtue of which he levied upon personal property of the said Ambrose, of the value of $ 1,500; thereupon Ambrose executed a forthcoming bond, with the other appellant as surety, conditioned for the return of the property on the day of sale; after the levy and execution of the delivery bond, and before the day of sale, Ambrose perfected an appeal to this Court, and executed an appeal bond, with his co-appellant as security, conditioned in the usual form; which appeal was afterwards dismissed.
    This action was brought upon the appeal bond, and the usual breaches assigned. To which the appellants pleaded, in bar, the levy aforesaid; and appellees replied thereto, the execution of the delivery bond aforesaid, perfection of the said appeal, dismissal of the same, and the breach of the delivery bond. To which replication appellants demurred. The Circuit Court overruled the demurrer, and appellants bring the cause to this Court, assigning for error the overruling of the said demurrer.
    The cause was heard before Theophilus L. Dickey, at January term, 1850, and a judgment rendered for the appellees, for the sum of $ 1,300 debt, and $ 602 47, damages.
    Wilson & Wilcox, for appellants, cited 4 Mass., 402; 12 Johnson, 207; 4 Cowen, 417; 14 Wendell, 260; 2 Lord Raymond, 1072; 3 Scam., 611; 1 U. S. Digest, 450; 1 A. K. Marshall, 15; 7 John., 426; 8 Smedes & Marshall, 505; 4 ibid, 459; 7 ibid, 791; 6 Howard, Miss., 513; 1 ibid, 64; 12 Johnson, 205; 5 J. J. Marshall, 676; 10 Peters’ U. S. Rep., 400.
    R. S. Blackwell, for appellees, cited 23 Wendell, 497; Revised Statutes, 306, secs. 30, 31.
   Opinion by Treat, C. J.:

Weed, Masters and Weed recovered a judgment against Ambrose, and an execution issued thereon was, on the 23d of April, 1845, levied on personal property of value sufficient to discharge the judgment. On the 26th of the same month, the property was restored to Ambrose, on his executing a delivery bond, with Root as surety, conditioned for the return of the property to the sheriff on the 1st of June thereafter. On the 28th of the same month of April, Ambrose perfected an appeal from the judgment to the Supreme Court, by the execution of an appeal bond, with Root as surety. The appeal was dismissed in December following. This action was brought upon the appeal bond; the breach assigned being the non-payment of the judgment.

It is insisted that the levy amounted to a satisfaction of the judgment, and constitutes a full defence to the action. It is well settled that a levy on the personal property of the debtor, sufficient in value to pay the judgment, operates, while the levy is undisposed of, as a satisfaction of the judgment. The property is in the custody of the law, and beyond the control or disposition of the debtor. The creditor has caused a seizure of enough of the effects of his debtor to discharge the judgment, and it is his own fault, if he does not thereby obtain an actual satisfaction. Such a levy, however, is not an absolute satisfaction of the judgment, but a satisfaction sub modo only; because, until there has been a sale, it cannot be known with any degree of certainty how much may be realized from the property. It may turn out that, from prior liens on the property or other causes, the proceeds of the sale will not be sufficient to pay the judgment. It would be wrong, therefore, to hold that the mere seizure of the property amounted to an extinguishment of the judgment. It would be equally wrong to suffer the debtor to be harrassed by any other proceedings, until it is ascertained that the levy is ineffectual for the satisfaction of the judgment. Until the levy is disposed of by a sale of the property, or a return of it to the debtor, the seizure may be treated as a satisfaction of the judgment. In the meantime, the right of the creditor to another execution, or to an action on the judgment, is suspended. If he sues out a fresh execution, it will be set aside, on motion; if he brings an action on the judgment, or on any collateral security for its payment, the levy may be set up as a defence to the further maintenance of the suit. If a sale of the property fails to produce a satisfaction of the judgment, or the property is returned to the debtor, or the levy is discharged from any other cause, the creditor is remitted to all of his legal remedies for the enforcement of the judgment. These principles are laid down in the well considered case of Green vs. Burke, 23 Wendell, 490, where all the leading authorities on this subject are examined.

In the present case, the property levied on was, by the voluntary act of the debtor, withdrawn from the custody of the sheriff, and has never been restored. The debtor is not deprived of the possession or control of the property, and the creditor has not, by virtue of the levy, the right to subject the property to the payment of his judgment. Under these circumstances, the levy cannot be set up as a satisfaction of the judgment. The statute authorizes a debtor to retain the possession of property seized on execution, by the giving of a delivery bond; and if the property is not forthcoming on the day specified in the bond, the sheriff may proceed with the execution as if no levy had been made; and in case sufficient property of the debtor cannot be found, he may seize and sell the property of the surety in the bond. R. S., ch. 57, secs. 30 and 31. Where property has been levied on, sufficient in value to discharge the judgment, the giving of a delivery bond suspends all further proceedings in the case, until the time has elapsed for the return of the property into the custody of the sheriff. If the property is not restored, the sheriff may proceed with the execution as if no levy had been made, or bring an action on the delivery bond; or both of these remedies may be pursued at the same time, although a satisfaction of one would operate as a satisfaction of both. The perfection of the appeal superseded all of the proceedings under the judgment. There was no forfeiture of the delivery bond, until the appeal was dismissed. The obligors, however, might have returned the property to the sheriff at the time fixed by the bond, and thereby discharged themselves from all liability on the bond. On the dismissal of the appeal, and the failure of the debtor to restore the property, the creditor was at liberty to sue out a new execution, and bring actions on the appeal and delivery bonds. The sheriff could not have proceeded to make a fresh levy on the old execution, because the return day of the process had passed.

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

Judgment affirmed.


text:
    Henry Eaton, appellant, vs. Jonathan S. Fullett, appellee.

      Jlppealfrom Jo Daviess.
    Where a sheriff has returned a summons into the Court from which it emanated, with his return thereon, his authority to-execute it is determined, and the force of the writ is spent, and cannot he revived hy a redelivery of it to him.
    Although a defendant pleads to an action, he does not waive the right to take advantage of the want of service of the summons, if, hy the stipulation of the parties, the right to test the validity of the service is reserved.
    This was an action of debt, commenced by the appellee, in the Jo Daviess Circuit Court, against the appellantand one Rudsell. Appellant moved to dismiss the cause in the Circuit Court, upon the agreed state of facts, hereafter set forth ; which motion was denied by the Court, Sheldon, Judge, presiding, at March term, 1849. Upon which appellant was ruled to plead, which he did, and the cause proceeded to a hearing, and judgment was rendered for the appellee. Several exceptions were taken to the ruling of the Court below; but as the ease was decided upon the point reserved, as to the sufficiency of the service, this alone will be a sufficient statement of the case.
    The motion to dismiss was submitted to the Court upon this agreed statement of facts ;

    ££ It is agreed in this case, between the parties, that the summons was duly issued and placed in the sheriff’s hands, on the 5th day of September, 1848, and made returnable on the 2d day of October, 1848. That the sheriff, on Saturday, the 30th day of September, aforesaid, not having served said process, but preparatory to returning the same, on Monday, the return day thereof, made this indorsement on the writ: £ The within named Anson Rudsell and Henry Eaton not found in my county; returned this 2d day of October, ’48. M. B. Pierce, sheriff.’ And on Monday morning, the return day thereof, handed the same to the clerk in said Court, or laid it on his desk; thereby intending to return the same. In a short time after, the plaintiff’s attorney asked the sheriff if he had executed the process on Eaton j being answered he had not, the attorney directed the sheriff where he might be found, and wished him to go and serve the writ on him. The attorney then picked up the writ from the clerk’s table, and handed it to the sheriff, who erased the return made on Saturday, and proceeded immediately to execute the same, and return it as indorsed.
    ££M. Y. Johnson, plaintiff’s attorney.

      “ T. Drummond, for defendant Eaton.”

      “ It is agreed in the foregoing statement of facts, if the Court shall be of opinion that the process has been legally served on the defendant, that he shall be ruled to plead; if, on the other hand, the Court shall be of opinion that process has not been legally served, that the suit is to be dismissed at plaintiff’s cost; either party to have the right to except.
    ££ DRUMMO'ND,t/b?’ Eaton.

    ££ M. Y. Johnson, attorney for plaintiff”

      J. P. Hoge, for appellant.
    M. Y. Johnson, for appellee.
   Opinion by Treat, C. J.:

By the agreement of the parties, the right of the plaintiff to proceed with the case, was made to depend on the validity of the service of process on the defendant. They stipulated that the suit should be dismissed, if the defendant had not been legally served with process. They referred that single question to the Court, with liberty to either party to except to the decision. We think the Court erred in not sustaining the motion to dismiss. There was no valid service of process on the appellant. Before the service was made, the sheriff returned the summons into the Court from which it emanated, with the indorsement that the defendants were not to be found in the county. He thereby parted with all control over the process, and his authority to execute it was fully determined. The force of the writ was wholly spent, and could not be revived by again delivering it to the sheriff. The delivery of the summons conferred no new authority on the sheriff, and his acts under it were nullities. But it is insisted, that the defendant, by pleading to the action, waived all right to take advantage of the want of service. How that might be, but for the stipulations of the parties, we will not now undertake to decide. But there was an express agreement that the suit should be dismissed, if there was no legal service of process ; and that an exception might be taken to the decision of that question. This amounted to a reservation of the right to test the validity of the exception, by appeal or writ of error. The appellant has the right, by force of the agreement, to assign the decision for error.

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

Judgment reversed.