text:
    Seth F. Hanchett, use, etc. v. Seneca D. Kimbark et al.

      Filed at Ottawa June 12, 1886.

    1. Evidence — cross-examination — restrictions, and when a greater latitude may be allowed. The rule is, that the cross-examination of a witness shall be restricted to such matters and things as he may have been examined upon in his direct examination.
    2. But greater latitude is allowed on cross-examination, when the witness is one of the parties in interest, or an unwilling witness, than in the case of an ordinary witness. It is a matter of discretion to allow a wider range to the cross-examination of a party, and not confine it strictly to the matters elicited on the direct examination, and its exercise can not be assigned for error unless such discretion has been abused.
    3. So where the court allowed a witness, who was a party to the suit, in his cross-examination, to be interrogated upon other subjects than those he testified about in his direct examination, and it did not appear that any injury resulted therefrom, it was held no ground to reverse the judgment.
    4. Same—admissions and statements of the holder of a note, etc., as affecting the title of his subsequent assignee. If thq holder of a note, or other evidence of indebtedness, then due, which is claimed to be fraudulent as to other creditors of the maker, admits or states that the maker in fact owes him nothing, and afterward transfers the same to another, his admission is proper evidence against his assignee, who takes subject to all the equities against the assignor.
    5. Same—statements of vendor of goods, in disparagement of his vendee’s title. The admissions of the vendor of goods in disparagement of his title, after the sale, are not admissible to defeat the title of his vendee to the property.
    6. Same—statements of vendor after sale—to impeach him. While it is true that the declarations of a vendor, after the sale of property, is not competent evidence against the vendee, yet if the vendor, when on the stand, denies having made declarations in respect to the fairness and genuineness of the sale, his attention being called to the time and place of making the same, it is competent to prove he did make such statements, for the purpose of impeaching his testimony.
    7. Same—evidence to show fraud in purchase of goods. On the question of the right of a vendor of goods to rescind the sale for fraudulent representations of the vendee as to his financial circumstances, and his intention, at the time of the purchase, not to pay for them, the vendor will have the right to show the circumstances under which the goods were obtained, And the manner in which the vendee disposed of them.
    8. And when the vendee, after his purchase, confessed a judgment in favor of his brother, and then sold all his goods, including those so purchased, to another creditor, who took an assignment of the judgment, and who had knowledge of facts tending to charge him with notice of the fraudulent intent of the vendor, it was held proper to admit evidence that the assignor claimed that before the confession of judgment his safe was opened by burglars, and $6000 or $7000 taken therefrom, and also to show that this claim was false, and only a pretence, as tending to show the intention of the Assignor in obtaining the goods.
    9. Impeaching judgment confessed in fraud of creditors. If a judgment is confessed by a part)7, for the fraudulent purpose of hindering, delaying and defrauding bona fide creditors, or a vendor of property purchased by him, such judgment is not to be taken as conclusive as between such fraudulent debtor and others attempted to be defrauded by him.
    10. And so, when the evidence tends to show that a judgment confessed by a failing debtor to his brother is fraudulent, and not bona fide, but color-Able, merely, an instruction that the records of the court introduced in evidence are conclusive, is properly refused. The party contesting the validity of such judgment has the right to show it was entered up with a fraudulent intent, and such an instruction might be taken as holding the judgment conclusive for all purposes.
    11. Purchaser from, fraudulent vendor—with and without notice. A purchaser of goods, for the purpose of satisfying his own claim against the vendor, when he takes without notice of fraud, or the fraudulent title of the vendor, or without notice of facts sufficient to put him on inquiry, is entitled to protection. /
    12. But if a person fraudulently obtains the possession of goods by purchase, with intent not to pay for the same, a purchaser from him, with notice of facts sufficient to put a reasonably prudent person on inquiry with regard to the fraud, will not be protected as an innocent bona fide purchaser. Actual notice of the fraud is not necessary.
    13. Same—of facts to charge a purchaser with notice of the fraudulent title of his vendor. A creditor, at the time of taking a bill of sale of all the goods and effects of a failing debtor, knew that his vendor was indebted to .another for goods then in the vendor’s shop; that he claimed to have been robbed; that his account of the robbery was improbable; that he had confessed a judgment in favor of his brother, and was endeavoring to put his property out of his hands for the purpose of defrauding his creditors, and such creditor, before his purchase, had charged the debtor with fraud: Held, that these facts, so known to the creditor to whom the bill of sale was made, were sufficient evidence of notice to him of fraud in the original purchase of the goods by the debtor, as to submit the question of notice to the jury.

      14. Fraudulent conveyance—preference of creditor. It is lawful ior a debtor to prefer one creditor and pay him in full. Both parties to a sale must be cognizant of or participate in the intent to defraud creditors, to Tender the sale void.
    15. Instructions—a single one giving all the law of the case. The practice of giving the jury, in one charge, all the law demanded by the facts of the case, instead of numerous isolated instructions, is sanctioned as a good one.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Messrs. Shuman & Depress, for the appellant:
    In case of a sale and delivery, the title to the goods passes to the vendee. Jennings v. Gage, 13 Ill. 613; Mowry v. Walsh, 8 Cow. 238; Rowley v. Bigelow, 12 Pick. 307.
    If goods are obtained by fraud, of the true owner, and fairly sold to an innocent purchaser having no notice of the fraud, the latter will be protected. Mowry v. Walsh, supra; Parker v. Patrick, 5 T. R. 175; McCarty v. Vickery, 12 Johns. 348; Hollingsworth v. Napier, 3 Caines, 182.
    A person who has sold and delivered goods, upon credit, ■obtained by fraud, is bound to elect between a rescission of the contract and bring his suit in trover or replevin, or an affirmance of the contract and sue in assumpsit for the price ■of his goods. If a party rescinds for fraud, it must be in toto, and he can not have the benefit of both remedies in one ■action. Kellogg v. Turpie, 93 Ill. 265; Bowen v. Shuler, 41 id. 193; Ryan v. Brant, 42 id. 78; King v. Mason, id. 223; Allen v. Ford, 19 Pick. 217.
    Although the object of a grantor may be to prevent his wendor from obtaining a reconTeyance for fraud, this will not defeat the title of the grantee, if he purchased in good faith, without notice of the equities of the original owner. Grant v. Bennett, 96 Ill. 513; Brown v. Riley, 22 id. 45; Gridley v. Bingham, 51 id. 153; Myers v. Kinzie, 26 id. 36.

      This court has said that the fraudulent design of a debtor in making an assignment, must be proved, and can not be established by mere suspicion, (Blow v. Gage, 41 Ill. 208,) and that the jury could not, from the mere fact that a mortgage had been made to hinder and delay creditors, infer that the purchaser of property was a party to it or had notice of it. Brown v. Riley, 22. Ill. 45.
    Kimbark, as a simple contract creditor, could not question the bona fieles of the transfer of this property, he not having a judgment, and an execution thereon returned nulla bona. Stone v. Manning, 2 Scam. 530; Bigelow v. Andress, 31 Ill. 322; McConnell v. Dickson, 43 id. 99.
    An insolvent debtor has the right to prefer one creditor to others, by making him a sale of all his stock of goods, in payment of the debt, or in part payment. Goembel v. Arnett, 100 Ill. 34; Tomlinson v. Matthews, 98 id. 178; Cross v. Bryant, 2 Scam. 43; Howell v. Edgar, 3 id. 417; Powers v. Green, 14 Ill. 387; Wilson v. Pearson, 20 id. 87; Finley v. Dickerson, 29 id. 9; Hesing v. McCloskey, 37 id. 344; Morris v. Tillson, 81 id. 607.
    Messrs. Hutchinson & Partridge, also for the appellant:
    When a witness is called by the plaintiff to prove a single fact, the defendant can not go into a general examination of the witness. The cross-examination must be confined to the examination in chief. Stafford v. Fargo, 35 Ill. 486; Hurlbut v. Meeker, 104 id. 542; Jackson v. Feather River Co. 14 Cal. 24; Warren v. Rowan, 3 Washb. 580; Bell v. Prewett, 62 Ill. 366.
    Statements made by William Morrison were only hearsay, and Huston’s testimony as to such statements should not have been admitted. 1 Greenleaf on Evidence, sec. 180; Parker v. Grout, 11 Mass. 157; Jones v. Witter, 13 id. 304; Dunn v. Snell, 15 id. 481; Page v. Cagen, 7 Hill, 361.

      Statements made by John Morrison subsequent to his sale to plaintiffs, were not competent evidence against plaintiffs, and the court erred in admitting them. Gridley v. Bingham, 51 Ill. 153; Bennett v. Stout, 98 id. 47; Fyffe v. Fyffe, 106 id. 646; Benson v. Lomly, 50 Iowa, 265; Clews v. Kehr, 90 N. Y. 633; Bridge v. English, 14 Mass. 245; Clarke v. Waite, id. 439.
    Messrs. Flower, Bemy & Gregory, for the appellees:
    It is not controverted that the cross-examination of a witness should be confined to the matter of his direct examination. But the rule has its exceptions. A witness may be cross-examined to show his interest or test his credibility. As to a party testifying, the rule permits a much more liberal and extended inquiry, limited only by the discretion of the trial court. Even in ease of undue extension of the liberty of cross-examination of a witness, merely, a judgment will not be reversed. Bell v. Prewett, 62 Ill. 366.
    Where fraud is alleged, courts should ever be liberal in allowing a searching cross-examination of the interested parties, when placed on the witness stand. Brosseau v. Warren, 6 Bradw. 450.
    Greater latitude is allowed in respect to a party. Railway Co. v. McMath, 1 Bradw. 429; Rea v. Missouri, 17 Wall. 532; Cramer v. Cullinane, 2 McArthur, 197; Holbrook v. Mix, 1 E. D. Smith, 154.
    The admissions of a predecessor in title are admissible against those claiming under him, if made when he was in possession. 2 Wharton on Evidence, secs. 1156, 1163.
    It is contended that the court erred in permitting Huston and Miller to testify to admissions made by John Morrison after his sale. This testimony was offered and received for the purpose of impeachment, and was properly received.
    The rule is well settled that a sale made on credit, and with a fraudulent intent not to pay for the goods, may be avoided, even though no fraudulent representations were made as an inducement to it, and that in determining whether such fraudulent purpose exists, all circumstances attendant, upon the sale, and the conduct of the - purchaser thereafter,, may be considered by the jury. Hennequin v. Naylor, 24 N. Y. 129; Byrd v. Hall, 2 Keyes, 647; Johnson v. Morrell, id. 655; Devoe v. Brandt, 53 N. Y. 462; Tolcott v. Henderson, 31 Ohio St. 162; Gray v. St. John, 35 Ill. 222; Lockwood v. Doane, 107 id. 235.
    As to the notice to be brought home to a purchaser in order to charge him with knowledge of any defects in his vendor’s title, see Doyle v. Teas, 4 Scam. 202; Rupert v. Marks, 15 Ill. 540; Merrick v. Wallace, 19 id. 486; Morrison v. Kelly, 22 id. 610; Hatch v. Bigelow, 39 id. 546; Harper v. Ely, 56 id. 179; Babcock v. Lisk, 57 id. 327; Burt v. Coleman, 89 id. 364; Railroad Co. v. Kennedy, 70 id. 350; Life Ins. Co. v. Ford, 89 id. 252.
   Mr. Justice Craig

delivered the opinion of the Court:

This .was an action of debt, brought by the sheriff of Cook county, for the use of Kelley, Maus & Co., on a replevin bond,, executed by appellees to the sheriff, in an action of replevin,, brought by S. D. Kimbark, against Kelley, Maus & Co., to recover certain goods which had been purchased by John Morrison from Kimbark, through, as is alleged, such fraudulent, representations as to the financial standing of said Morrison,, as to authorize the vendor to rescind the sale and recover the-goods. After the goods had been recovered under the writ, Kimbark dismissed his action of replevin, and this suit was brought by the sheriff, on the bond, to recover the value of the goods. As a defence to the action, Kimbark set up that the purchase of the goods by John Morrison was fraudulent ; that the sale from Morrison to Kelley, Maus & Co. was fraudulent, for the purpose of covering up the property for the-benefit of Morrison, and that the circumstances under which Morrison sold to Kelley, Mans & Co. were sufficient to charge them with the fraudulent character of his purchase from Kimbark. On a trial of the cause, before a jury, the issue presented was found in'favor of Kimbark, and the plaintiffs recovered only nominal damages. On appeal the judgment was affirmed in the Appellate Court, and the plaintiff in the action, for the purpose of reviewing the decision of the Appellate Court, has prosecuted an appeal to this court.

When the case was presented at a former term, upon the argument presented, we entered an order reversing the judgment and remanding the cause for another trial. Under the rules of the court, Kimbark presented a petition for a rehearing, which was considered, and a rehearing ordered. The cause has again been argued, and upon further consideration of the case, as presented on the re-argument, we have arrived at a different conclusion from that reached when the case was first presented.

In order to determine properly whether the decision of the circuit court on the admission of evidence and the giving and refusing of instructions, which was approved in the Appellate Court, was correct or incorrect, it seems proper to allude to some of the leading facts in the case as established by the evidence.

In the month of January, 1883, John Morrison, who was engaged in the manufacture of carriages in Chicago, pur-, chased, on credit, of Kimbark, a wholesale dealer in iron in Chicago, a bill of goods amounting to about $2500. The goods were delivered in different quantities and at different dates, from the time of purchase, during January, February and the first part of March. At the time of the purchase Kimbark required a statement from Morrison as to his financial condition, which was given, showing that his liabilities did not exceed' $300, and that he was worth some $20,000, consisting of a farm in Michigan and property in Chicago. From the time the bill of goods was ordered he continued business in Chicago until April 13, 1883, when, claiming that his safe had been robbed of some $6000 in currency, he confessed a judgment in favor of William Morrison, a brother, for some $2500. Execution was issued on this judgment, and levied on Morrison’s goods. He then was taking steps to make an assignment, when he was induced by Kelley, Maus & Co., to whom he was indebted in the sum of $2500, to make' a sale of his goods to them. They at the same time purchased the judgment which had been confessed in favor of William Morrison, and assumed the payment of $400 or $500 due Morrison’s workmen. When the-terms of the purchase were agreed upon, Kelley, Maus & Co. took a bill of sale and went into the possession of the goods,—amounting in value to between $6000 and $7000. They knew at this time that Morrison was in failing circumstances, and that he did not have sufficient property to pay his debts ; that a part of the goods contained in the bill of sale had been purchased from Kimbark; that Morrison was attempting to defraud his creditors. There was also evidence introduced tending to prove that under the arrangement made with Kelley, Maus & Co., Morrison was to have whatever overplus should remain on sale of the goods, after the firm debt, and such advances as they made, should be paid.

On the trial, Charles B. Kelley, one of the plaintiffs, was called as a witness in behalf of the plaintiffs, for the purpose of proving the value of the property, the expenses incurred in the action of replevin, and that the property was not returned, and his examination in chief was confined to these subjects. On the cross-examination the court permitted the defendant to interrogate the witness upon other subjects, and this is relied upon as error. There is no doubt in regard to the general rule on this subject. It is well established by a uniform current of authority that the cross-examination of a witness is restricted to such matters and things as the witness may have been examined upon in his direct examination. (Stafford v. Fargo, 35 Ill. 486; Hurlbut v. Meeker, 104 id. 542.) But while we fully concede the general rule on the subject, cases may arise where a strict observance of the rule will not always be required. More latitude is always allowed in cross-examination, where the witness is one of the parties in interest, or where the person is an unwilling vritness, than in the ease of an ordinary witness, and we think it safe to say, that a circuit court may, in its discretion, where a party in interest is a witness, allow the cross-examination to take a wider range; and where the cross-examination has not been confined strictly to the examination in chief, it will not be held error unless it appears that there has been an abuse of the exercise of a sound legal discretion. (Rea v. Missouri, 17 Wall. 533.) Here, much latitude was allowed on the cross-examination of the witness, but, so far as appears, no injury whatever was done to the plaintiffs, and we do not think that the judgment ought to be reversed unless it was apparent that the plaintiffs had been injured by the ruling of the court.

It is also claimed that the court erred in allowing the defendant to prove, by William Huston, the declarations of William Morrison, which were made four days before the sale of the goods, to the effect that John Morrison at that time owed him nothing. William Morrison was not a party to' the suit, and it is claimed that his declarations were mere hearsay. It will, however, be remembered, that William Morrison, at the time the admissions were made, held a past due note against John Morrison, upon which a judgment was entered by confession, four days later, for some $2500, which was subsequently transferred to Kelley, Maus & Co, and they claimed that the judgment formed a part of the consideration for the purchase of the goods from John Morrison, while on the other hand, the defendant insisted that the note and judgment were fraudulent. The judgment may be treated as over-due paper, which Kelley, Maus & Co. took subject to all defences that might be made against it, the same as if it had remained in the hands of John Morrison, and we are inclined. to hold, that declarations made by him while he held the note- and judgment, were admissible, under the doctrine laid down: in 2 Wharton on Evidence, see. 1163, as follows: “Where-A, the possessor of a chattel or chose in action, assigns it to-B, B takes it charged with equities which could have been maintained against A, supposing that B has notice, or ought-to take notice, of such equities; and from this it follows, that B, under such circumstances, is as’ much exposed to the ad-mission against him of A’s self-disserving declarations as to-such equities, as he would be to the admission of any other-legal evidence going to establish such equities.” See, also, Vennum v. Thompson, 38 Ill. 144.

It is also contended, that the statements made by John Morrison, in the presence of William Huston, after the sale, in regard to the note which he had given to his brother, and in regard to the burglary, were not competent evidence. The-admissions of John Morrison, in disparagement of his title-to the property, after the sale, were not admissible to defeat, the title of Kelley, Maus & Co. to the property, under the-well known rule that declarations of a vendor after the sale-of property are not competent evidence as against the vendee. But when John Morrison was on the stand as a witness, he denied that he had made certain statements in relation to-the robbery, and the note given to his brother at a certain time and place, in the presence of Huston and Miller, and his statements were proven for the purpose of impeachment, and for this purpose the evidence was proper.

It is also argued, that the evidence is not sufficient to sustain the verdict. That was a question of fact for the jury, upon which the judgment of the Appellate Court, affirming; the judgment of the circuit court, is conclusive here.

Evidence in reference to the alleged burglary of Morrison, tending to prove that his claim in this regard was false, was. admitted, and this is claimed to be error. Embark claimed the right to rescind the contract of sale under, which Morrison obtained the goods, and upon this branch of the case he had the right to show the circumstances under which the goods were obtained, and the manner in which Morrison disposed of them. (Lockwood v. Doane, 107 Ill. 236.) On the night before the judgment was entered in favor of William Morrison, John Morrison claimed that his place of business was entered, and $6000 or $7000 in currency taken from his safe. This pretence doubtless led to the entry of the judgment, and the judgment and contemplated assignment led to the sale of the goods to Kelley, Mans & Co., and the admitted evidence in relation to these transactions was competent, as bearing on the intention of Morrison in obtaining the goods.

The court refused all instructions asked by the plaintiffs, and embodied all the law thought to be applicable to the ease in one charge to the jury, and it is claimed that plaintiffs’ instructions 2, 8, 9 and 12 were proper and should have been given. No. 2 in substance informed the jury that the records of the court, introduced in evidence, are conclusive as to the facts therein contained, and can not be disputed by other evidence. This instruction was not proper, under the evidence before the jury. The defendant had the right to show that there was no foundation for the Morrison judgment,—that it was fictitious, and entered up with a fraudulent purpose; and yet, if the instruction had been given, the jury might have been justified in concluding that the record of the judgment was final and conclusive for all purposes.

As to instruction No. 8, its substance, or at least all of it proper for the consideration of the jury, Avas embraced in the-charge which the court gave to the jury.

As to the ninth refused instruction, it was bad in one respect, at least,—in this, that it required proof of actual notice to Kelley, Maus & Co. of the fraud in the purchase of Morrison from Embark. If they had notice of facts sufficient to put a reasonably prudent person on inquiry in regard to the fraud, this was enough to charge them with notice of fraud.

As to the instruction No. 12, we think its substance was contained in the charge given to the jury by the court, found at the foot of page 33 of the abstract. The charge directs the jury that it is lawful for a debtor to prefer one creditor and pay him in full, as does the instruction. It also announces the principle, that a purchaser, with the intention -of satisfying his own claim, where he purchases without notice of fraud or of facts sufficient to put him on inquiry, is entitled to protection. The instruction declares substantially the same thing in different language, declaring that both parties to the sale must be cognizant of and participate in the fraud. The instruction refused is perhaps somewhat broader in its terms than the charge, but at the same time we think the charge contained all that was required for the jury to comprehend their duty in considering the facts put in evidence, on this branch of the ease.

It is also contended that certain portions of the charge given by the court to the jury were erroneous,—that it was complex, intricate and voluminous. That the charge is somewhat voluminous we readily concede. The court, however, instead of following the practice which usually obtains, of giving a large number'of isolated instructions for each of the parties, gave to the jury in one charge all the law which it was thought the facts of the case demanded, and we are not prepared to say that there is any well founded objection to a practice of this kind, but, on the other hand, we think it a good one.

The principal objection made to the charge, as we understand the argument, is, that there was no evidence that Kelley, Maus & Go. had notice of any fraud in the purchase of the goods by Morrison from Kimbark, or notice of any fact sufficient to put them on inquiry, and consequently there was nothing upon which that part of the charge could be properly based. If there was no evidence whatever on that branch of the case, an instruction would have been improper, as all instructions to the jury should be predicated on the evidence. But when the bill of sale was made, Kelley, Mans & Co. knew that Morrison was indebted to Kimbark for goods then in Morrison’s shop. They knew that Morrison claimed to have been robbed; that his account of the robbery was improbable; that he had confessed a judgment in favor of his brother; that he was endeavoring to put his property out of his hands for the purpose of defrauding his creditors. They, through their attorney, charged Morrison with fraud, and threatened him with an action of attachment if he refused to settle with- them. These and kindred facts were known to Kelly, Mans & Co. when they took an assignment of the goods from Morrison, and they were enough at least to authorize Kimbark to go to the jury on the question of notice of the fraud in the purchase of the goods by Morrison. It may be that the charge to the jury is not entirely free from slight error, but as a whole we regard it substantially correct, and we are satisfied that the jury was not misled by it.

The questions involved on the trial in the circuit court were closely contested, and were questions purely for the determination of a jury, and the finding, approved, as it has been, in the Appellate Court, can not be disturbed, unless the circuit court erred in questions of law, which we are not satisfied is the case.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: -Mr. Justice Sheldon

license: Public Domain

text:
    The Peoria, Decatur and Evansville Railway Company v. Joseph T. Goar, Treasurer.

      Filed at Springfield October 6, 1886.
    1. Taxation op railroads—assessment of railroad track—by whom. Under the Revenue law, the exclusive power to assess “railroad track, ” which includes right of way, with the superstructures of main, side or second track and turn-outs, and the station and the improvements thereon, is conferred upon the. State Board of Equalization, and therefore an assessment of the property used as railroad track, by the local or township assessor, is void.
    2. And where a railway company, in good faith, in its schedule to go before the State Board of Equalization, attempts to return all of its right of way, the fact that the correct number of acres thereof is not given, will not' justify the local assessor in assessing any part of such right of way.
    3. Same—mistake in return by railway company, in not properly including lohat is “railroad track”—estoppel. Where lots and blocks of a railway company, constituting,what the statute call§ “railroad track, ” are, by mistake of the company’s general manager or agent, returned to the county clerk and the State Auditor as real estate other than “railroad track, ” and the same are assessed by the State Board as well as by the local assessor, the company, on bill to enjoin the collection of taxes extended on the assessor’s valuation, will not be estopped from showing the mistake, and thus avoid double taxation on such lots and blocks.
    4. Same—machinery—whether realty or personalty—and by whom to be assessed. Fixed and stationary machinery attached to railroad shops on the railway company’s right of way, is part of the real estate or railroad track, and as such is assessable only by the State board. But a steam engine and boiler not permanently attached to the realty, are personal property, and as such it is properly assessed for taxation by the local assessor.
    Appeal from the Circuit Court of Coles county; the Hon. James F. Hughes, Judge, presiding.
    Messrs. Stevens, Lee & Horton, and Messrs. Wiley & Neal, for the appellant:
    The local assessor should so describe the property assessed by him as not to embrace any of the railroad track. Railroad Co. v. People, 99 Ill. 467.

      An assessment made by a person not authorized by law,-is •void. Railroad Co. v. People, 98 Ill. 350; Railroad Co. v. People, 4 Bradw. 468.
    As to what is “right of way” and “railroad track,” see Railroad Co. v. People, 98 Ill. 350; Railroad Co. v. People, 99 id. 464; Railway Co. v. Wiber, 96 id. 443; Railway Co. v. Miller, 72 id. 141; Railroad Co. v. Siders, 88 id. 325.
    A court of equity will enjoin the collection of a tax when "those levying the same transcend their powers or act without legal warrant, and in all other eases where the tax is void. Moore v. Wayman, 107 Ill. 192; Glass Co. v. McCabb, 88 id. 556.
    The difficulty in the present case is not a simple irregularity, but it is the assessment of property by one who had no power to make it, and the levy of a tax upon such assessment must be considered as absolutely void. Railroad Co. v. People ex rel. 99 Ill. 464; Railway Co. v. Miller, 72 id. 144; DuPage County v. Jenks, 65 id. 287; Darling v. Gunn, 50 id. 424; Cleghorn v. Postlewaite, 43 id. 428; Vieley v. Thompson, 44 id. 9; Allwood v. Cowen, 111 id. 481.
    Mr, S. M. Leitch, for the appellee, after stating and commenting upon the facts, made the following points:
    First—That the assessment of the lots in controversy by -the local assessor was not void, but that the act of appellant made it his duty to assess them.
    Second—That appellant is estopped by its schedules, filed •with the Auditor of Public Accounts and the county clerk, from denying that the lots are real estate.
    Third—That if the local assessor had not the right to assess 4hem, the circumstances are such that his assessment was not -void, and their only remedy is a legal' and not an equitable one.
    Fourth—That the presumption of law is, that the assessor •did his duty, and there is no evidence to overcome that presumption as to the assessment of the personal property.
   -Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, filed by the Peoria, Decatur- and Evansville Bailway Company, on May 22, 1882, for the-purpose of restraining the collection of a tax assessed against the company upon assessment made by the local assessor of Mattoon township, upon certain lots and blocks, and the build-, ings and improvements on them, in the city of Mattoon.

The bill avers, that on and prior to May 1, 1881, all of said lots and blocks were occupied by the railway company with its shops, depot and other buildings, with a large number of' railroad tracks, and used exclusively for railway purposes, and. that as such they were all embraced in the return of tracks,, side-tracks, railroad right of way, and improvements thereon, made by complainant, as required by law, to the State Board, of Equalization, and ,were by it assessed according to law -y that the assessment by said board for the year 1881, against complainant’s property in Coles county, including all the-property above described, except the buildings, was $45,500, and upon the buildings described, including the shops and all machinery therein, was $10,800, the taxes upon which assessments have been paid by complainant; that the machinery assessed was stationary, fixed machinery, and included a stationary boiler and engine. The bill further avers, that the local assessor, without right or authority, assessed the-property, on which a tax was levied against the company, upon the lots and improvements before described, of $1579.61, and. upon the fixed machinery in said shops, including the said engine and boiler, was assessed a tax of $696.09, making in. the aggregate a tax on the local assessment against complainant, of $2275.70. This last is the tax the collection of which is sought to be enjoined. On hearing, the circuit co.urt dismissed the bill, and this appeal was taken.

Section 42 of the Bevénue law, (Bey. Stat. 1874, p. 865,)> in respect to railroad property, provides: “Such right of way* including the superstructures of main, side or second track, and turn-outs, and the station and improvements of the railroad company on such right of way, shall be held to be real estate for the purposes of taxation, and denominated ‘railroad track,’ and shall be so listed and valued.” By section 50, the property denominated “railroad track” is required to be assessed by the State Board of Equalization. In Chicago and Alton Railroad Co. v. The People ex rel. 98 Ill. 350, it was decided that under the Revenue law the exclusive power to assess railroad track and rolling stock of railways is conferred upon the State Board of Equalization, and that an assessment of property used as railroad track, by the local township assessor, is void.

There is no doubt, from the proof, that the property upon which this assessment by the local assessor was made, was of the class denominated “railroad track, ” and alone assessable by the State Board of Equalization, and that it was assessed by such board, and the tax under that assessment paid, so that the assessment by the local assessor was null and void. But it is claimed that the appellant is estopped, by its schedules filed with the Auditor of Public Accounts and the county clerk, from saying that the property in question was railroad track. It does appear by schedule ‘D,’ filed by the company, that the lots and blocks in question are real estate other than railroad track. Upon this point the testimony of the witness Bradbury, by whom, as general manager of the company, the schedules are signed, is as follows : “All of the property specified on schedule ‘D’ sheets, except lots in block 143, in Noye’s addition, was used for right of way purposes alone, for tracks, depot and shops, as the general yards of the company, for the general purposes of the railway company as their right of way, and for no other purpose. All of the property listed on schedule ‘D’ except the lots in 143, were specified on said sheets ‘D’ by an error, and should have been specified on schedule ‘A,’ denominated railroad track.” Block 143 is not involved here. The property being thus in the open and visible use and occupation of the railway company for the above purposes, the mistake must have been palpable to the assessor. He must have known the lots to be “railroad track, ” and property which he had no authority to assess. No injurious result, in any respect, has followed from the error in the schedule, more than the slight trouble caused the local assessor in making the assessment, which he had no authority to make, and must have so known. We do not think there is any foundation here for the application of the doctrine of estoppel, as claimed.

In The People ex rel. v. Atkinson, 103 Ill. 45, referred to by appellee’s counsel, where an assessment by the assessor of the township in which the tax-payer resided, instead of, as required by law, by the assessor of another township in which the property was situated, was sustained, the assessor had the power to assess that species of property, but here the local assessor had no authority to assess this kind of property.

Some point is made upon the number of acres embraced in their right of way, as returned by the company in their schedule, it being called 94^°^ acres, when a calculation of appellee’s counsel, founded on the length and average width ■of the right of way, makes it to be 130 acres. All the right of way of the company was intended to be embraced within the return made, and if the correct number of acres was not stated, that would not justify the local assessor in assessing any portion of the right of way.

With respect to the boiler and engine, their assessment as personal property, by the local assessor, is admitted by appellant’s counsel to have been proper, under the decision in Johnson, Collector, v. Roberts, 102 Ill. 655, and the 25th section of the Bevenue law requiring assessors to assess as personal property “every steam engine, including boilers.” The fixed and stationary machinery attached to the shops, we regard as constituting a part of the machine shops, and as embraced in the return made to the Auditor, of machine shops situated on the right of way, and in the assessment of machine shops made by the State Board of Equalization, and as not assessable by the local assessor. The assessment having been made by a- person who had no authority by law to make it, and therefore void, the bill should have been sustained. Allwood v. Cowen, 111 Ill. 481; Searing v. Heavysides, 106 id. 85; Kimball v. Merchants' Savings, Loan and Trust Co. 89 id. 611; Anderson v. Chicago, Burlington and Quincy Railroad Co. 117 id. 26.

The decree will be reversed, except as to the engine and boiler, and the cause remanded for further proceedings in conformity with this opinion..

Decree reversed in part and in part affirmed.


author: Mr. Chibe Justice Scott

text:
    John L. Morrell v. Union Drainage District No. 1.

      Filed at Springfield October 6, 1886.

    1. Drainage law — drainage district — legality of its organisation assumed. On bill to enjoin the collection of special assessments made by drainage commissioners, on the ground of misconduct, etc., where no charge is made or proved affecting the jurisdiction to organize the district, it will be assumed, in a collateral proceeding, that the district was legally organized.
    2. Same—apportioning assessment for benefits according to the entire cost—the statute construed. The words, “but in no event shall any tract of land be assessed for benefits in a greater amount than its proportionate share of the estimated cost,” etc., in section 14 of the Drainage act of May 29, 1879, mean, that each tract of land shall pay a tax in the proportion the benefits it would receive will bear to the entire cost of the drainage. Such assessment does not necessarily find the full benefits the land will sustain.
    3. Same—of an additional assessment, in case of a deficit. Where the original assessment, under section 14 of the Drainage law of 1879, proves inadequate to complete the work undertaken, the commissioners are, by section 32 of the same act, authorized to levy an additional assessment to enable them to pay the deficit. In doing so, each tract of land must be assessed such proportion of the additional cost as its original assessment bore to the total original assessment. Ho additional assessment of benefits is necessary.
    4. Same—remedy in ease of improper assessment. The statute relating to drainage, gives any party who feels himself aggrieved by the assessment against his land, an appeal, by which any errors may be corrected; and where the commissioners, in making an assessment, have jurisdiction, and the party affected thereby fails to avail of his legal remedy, by objecting to its confirmation. or appealing, a court of equity will not interpose to vacate the judgment of confirmation, or grant other relief against the assessment.
    Writ oe Error to the Circuit Court of Christian county; the Hon. James A. Creighton, Judge, presiding.
    Mr. A. McCaskill, and Mr. J. C. McBride, for the plaintiff in error;
    Land can not be specially assessed for drainage in a greater amount than it will be benefited. Rev. Stat. chap. 42, sec. 112, Starr & Curtis’ ed.; Huston v. Clark, 112 Ill. 344; Crow v. Tolono, 96 id. 255; Crawford v. People, 82 id. 557.
    It is essential that the extent of the benefits shall appear equal to the assessments. Crawford v. People, supra; Crow v. Tolono, supra; Chicago v. Larned, 34 Ill. 203 ; Lee v. Ruggles, 62 id. 427.
    A court of chancery will take jurisdiction, and restrain the collection of taxes levied or assessed without authority of law. Bank v. Cook, 77 Ill. 622; Drake v. Phillips, 40 id. 388; Vieley v. Thompson, 44 id. 9.
    Mr. H. M. Vandeveer, and Mr. James M. Taylor, for the defendant in error.
   Mr. Chibe Justice Scott

delivered the opinion of the Court:

• The bill in this case is for an injunction and relief, and was brought by John L. Morrell, against the drainage commissioners of Union Drainage District No. 1, of the towns of Harvel and King, in Montgomery and Christian counties, and also against the treasurer of such drainage district, and against the treasurer and ex officio collector of Christian county. It appears that, upon a petition presented for that purpose, signed by the required number of land holders owning lands in the proposed district, a drainage district, comprised of lands lying in Harvel and King towns, was organized by the commissioners of highways of the respective towns, under the act of May 29, 1879, in relation to the construction, maintenance and repair of drains and ditches by special assessment. Misconduct is alleged against the drainage commissioners, touching their official action in making assessments for benefits, and otherwise, but nothing is charged or proved that affects the jurisdiction of the commissioners to organize the district for drainage purposes, as was done. It will therefore be assumed, in a collateral proceeding, as this is, the drainage district was legally organized under the provisions of the statute.

It seems that under the provisions of the 14th section of that act, the drainage commissioners assessed the benefits that would accrue to complainant’s land by the construction of the proposed drain, at the sum of $1800. Of this sum the commissioners, at the time of confirmation, directed that ten per cent should become due immediately, and that the remainder should be paid in equal installments, to become due at dates definitely fixed. The first assessment made against complainant’s lands was for fifty per cent of the amount of- benefits assessed, which was equivalent to $900. This sum was to be and was credited by small sums allowed for damages for land taken, and for an old drain or ditch utilized, and the balance of this first assessment was fully paid, and as to it no controversy now exists. A second assessment of fifty per cent on the amount of benefits, that is, the further sum of $900, was made. No appeal was ever taken by complainant from the order confirming this last assessment of $900, and, as it was never paid, judgment was subsequently rendered upon it in the county court, on the application of the county collector. That-judgment is still unsatisfied, and one branch of the relief asked is, that this judgment may be set aside and its collection enjoined. Later on, the commissioners made another assessment against the lands of complainant, of twenty-four per cent on the sum assessed to complainant for benefits, which amounted to the sum of $432. This last assessment, it is alleged, was made without authority of law, and is for that reason void. The other relief demanded by the bill is as to this particular assessment. All charges of misconduct against, the drainage commissioners were specifically denied in the answer made by them, to which there was a rejilication. The motion to dissolve the injunction previously awarded, was sustained, and the bill dismissed. It is recited in the bill of exceptions, the motion to dissolve the injunction “was determined on the bill, answer and replication in this cause, and said affidavits, and that no other or further affidavits were read or evidence-offered on the hearing of said motion. Complainant brings, the case to this court on appeal.

It is so evident that no relief can be granted to complainant as to the judgment rendered in the county court for the-second assessment of $900, that branch of the case need not. be elaborated. The commissioners clearly had jurisdiction to make that assessment, and if any irregularities intervened that rendered it invalid, such defence could have been interposed when the commissioners came to make the order of confirmation, or on the application, in the county court, for judgment. The statute having given a remedy at law, chancery will not interpose to vacate the judgment, or grant other-relief as to such assessment.

The principal question in the case arises on the following-allegation contained in the amended bill: that the assessment of benefits made by said drainage commissioners on. June 29, 1883, in the sum of $1800, was the only assessment of benefits to said tract of land ever made or attempted to be made by such commissioners, and said $1800 was, in fact, the full amount of all benefits that did, could or have, in any manner, accrued, or can accrue, to complainant’s said tract, of land by reason of said ditch or drainage system, when fully completed.

The argument proceeds on the theory, that inasmuch as-the first and second assessments, of $900 each, equal the whole amount of the assessment for benefits, viz., $1800, there could be no further special assessment or tax levied upon the complainant’s land, and hence it is said the special tax of $432, attempted to be levied on January 22, 1884, was without authority of law, and void. The limitation that is said to exist on the power of the commissioners to make the third or last assessment, is thought to be contained in the 14th section of the Drainage act, cited supra. That section provides that “at the earliest practicable day after the organization of the district, the commissioners shall proceed to view the line or lines of the proposed work, and determine the cost of the same, and shall view the lands to be benefited thereby, and ascertain, to the best of their judgment, the amount of the benefit that will accrue to each tract of land to be affected thereby, and shall assess to each tract of land its proportionate share of the entire cost of such work; but in no event shall any tract of land be assessed for benefits, in a greater amount than its proportionate share of the estimated cost of the work and all expenses of proceedings, nor in a greater amount than it will be benefited by the proposed work, according to the best judgment of the commissioners.”' It may not be very clear what is meant by the expression, “its proportionate share of the entire cost of the work.” No doubt, it is proper this section should be read in connection with other sections of the same act, to ascertain its meaning. It will be seen, it is made the duty of the commissioners to examine the map and report of the engineer, and if, from their own examination, and such map and report, if there be any, it shall appear the lands included in the proposed district will be benefited for agricultural, sanitary or mining purposes by the construction of a drain or combined system of drainage, they shall so find, “unless they shall find, from the evidence of witnesses then introduced, that the cost of the proposed work will exceed the benefits to be derived therefrom. ” In this case, the engineer selected by the commissioners to make an examination of the work to be done, and estimate the cost, reported, that while the expenses of construction may possibly exceed the estimates made by him, it was believed the benefits that would accrue to the lands comprised in the proposed district would far exceed the cost of construction. The commissioners, from their own examination, and from the examination of the map and report made by the engineer, found the lands included in the proposed district would be benefited for agricultural purposes by the construction of the drain or ditch, and they further found that the benefits that would accrue to the lands in such district by the proposed drainage, will largely exceed the cost of constructing the proposed drain in such district. Thereupon the commissioners ordered that such drainage district be organized, and it was accordingly so done. Having organized the district, it became the duty of the commissioners, at the earliest practicable day, to view the route proposed for the drain or ditch, and determine the cost of the same, and then ascertain, to the best of their judgment, the amount of the benefits which will accrue to each tract of land affected, and to assess to each tract “its proportionate share of the entire cost of the work.” Then comes the limitation clause of section 14, “but in no event shall any tract of land be assessed for benefits in a greater amount than its proportionate share of the estimated cost of the work, * * * nor in a greater amount than it will be benefited by the proposed work, according to the best judgment of the commissioners.” Evidently it was meant that each tract of land should pay a tax in the proportion the benefits it would receive would bear to the entire cost of constructing the proposed drainage. That would be its “proportionate share”.of the entire estimated cost of the work. That was done in this case. The commissioners determined the “proportionate share” of the entire cost of the proposed work that should be assessed on complainant’s land to be $1800, and accordingly they assessed it for benefits in that sum, which sum, it must be assumed, they also determined was not in excess of the ben«fits it would sustain. The statute is imperative, the commissioners could not assess complainant’s land for benefits in excess of its “proportionate share” of the entire cost of the proposed work, whatever that might be. The finding of the commissioners that complainant’s land would be benefited in a sum equal to its “proportionate share” of the estimated cost of the proposed work, is not a finding such land will-not be benefited in any greater sum by the construction of such drainage. The commissioners found no such fact. All they did find, was, that the “proportionate share” of the estimated cost of the proposed work did not exceed the benefits the land would sustain, in the best judgment of the commissioners, and nothing more. It may be the benefits the land would sustain would far exceed the sum of $1800, the “proportionate share,” as first estimated, the land should bear of the estimated cost of the proposed work; but by the statute the commissioners are prohibited from assessing benefits in excess of “its proportionate share” of the estimated cost of the work.

It is believed this is the proper construction of these provisions of section 14, and if so, they can have no effect upon the 32d section of the same act, which gives authority for additional assessments in ease the “proportionate share” each tract should bear of the estimated cost of the entire work, as^ first determined, should prove to be inadequate to complete the work to be done. It was no doubt expected the primary-estimates of the cost of such undertaking- might often prove inaccurate. In this case the engineer reported the cost of the work might exceed the estimates, but the benefits would, be far in excess of the cost. By the 32d section, provision, is made for the happening of such a contingency, where it is-declared, “when the assessments hereinbefore made shall be-inadequate to complete the work proposed, * s * each, tract of land shall be assessed such proportion of the additional cost as its original assessment bore to the total original assessment, and the said additional assessment shall be made-by the commissioners in the same manner as the original assessment was made.” The original assessment was found to be inadequate to complete the work undertaken, and the-commissioners levied an additional assessment to enable them to pay the deficit. In doing so they conformed to this section, of the statute, and assessed no more against complainant’s, land for the additional cost than the proportion its original assessment bore to the total original assessment. This additional assessment was made precisely as the original assessments had been, and was confirmed in the same way. In case a party whose land has been assessed, and that assessment confirmed by the commissioners, is dissatisfied, the statute gives him an appeal, where any error that has intervened that would work a hardship to the owner, may be corrected. It is not denied complainant could have had an appeal from the first and second assessments made upon his land, had he so desired. There is no reason why he could not have appealed from the confirmation of the third or last assessment as well as the other assessments. It can hardly be doubted, the commissioners had jurisdiction, under the statute, to-make additional assessments when the original assessments-proved to be inadequate to complete the work proposed, and any error that might intervene in their action could only be corrected on the appeal provided by statute.

It is said great hardship will come upon complainant if the second and third assessments shall be collected. That may be; but such hardships result, if at all, from the.imperfect application of the law through the commissioners, and such results can not be controlled by a court of equity. An appeal is given by statute for the correction of all errors that may be committed by the commissioners, in making assessments or otherwise. No reason is, shown why complainant could not take an appeal, under the statute, from either assessment against his lands, which is now alleged to be burdensome and oppressive, as is held might be done in Drainage Commissioners v. Hudson, 109 Ill. 659.

The Drainage act construed in Huston v. Clark, 112 Ill. 350, is not the one under which the district in this case was organized, and what was said in the opinion in that case can have no application in the case being considered. It was the act of May 29, 1879, known as the “Levee act, ” for the formation of a drainage district. (Sess. Laws, 1879, p. 120.) Nolis there anything in the opinion in Drainage Commissioners v. Hudson, supra, inconsistent with the views here expressed. On the contrary, that case is in entire harmony with the conclusions reached in this case.

No ground is perceived for equitable relief, and the decree of the circuit court must be affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    James M. Petty v. The People of the State of Illinois.

      Filed at Springfield October 6, 1886.

    1. Recognizance—requisites—as to the court, and the term at which to appewr. While it may be, a recognizance which wholly fails to specify the ■court and the term of the court at which the principal is required to appear, would be deemed to be void, yet it is not essential to the validity of the re■cognizance that the legal, technical name of the court shall appear-. It will be sufficient if the court is so described that the accused may know the one intended.
    2. A recognizance taken in Adams county was conditioned that the accused should appear “before the criminal court of said county * * * on the first day of the next term thereof, to be holden in the court house in Quincy, on the third Monday of January, 1885. ” By an order of court, the January term of the circuit court, which commenced on the third Monday of January, was set apart as a criminal term exclusively. But there was no court in that county technically known as the criminal court: Held, that under sections 9 and 18, division 3, of the Criminal Code, the defect of form in not giving the true legal name of the court did not render the recognizance void, it being evident that the circuit court was the court intended.
    3. Soibe facias on recognizance—to whom to be directed—of service out of the county. There is no provision of law requiring a scire facias upon a forfeited recognizance to be sent out of the county in which the court is held, for service, and it is properly directed to the sheriff of that county for service therein.
    4. Ror is there any law authorizing a sheriff to serve the scire facias issued upon a forfeited recognizance outside of his county, and without an express provision of the statute to that effect he has no right to do so. Therefore, such process will not be void because it directs the sheriff to serve the defendants if found within his county.
    5. Same—effect of one nihil, as being equivalent to actual service. Under a former statute, actual service, or the return of two nihils, was necessary to give the court jurisdiction of the persons of the defendants in a proceeding to enforce collection of a forfeited recognizance, but under the present statute one nihil is sufficient, and is equivalent to actual service.
    6. Same—variance between the writ and the recognizance, as to the term at which to appear. An averment in a scire facias, on a recognizance, that the accused was recognized to appear in the court to answer a criminal charge “ on the first of the then next term of the said court, ” where certain terms of the court are set apart exclusively for civil business, and other terms for criminal matters, will be held to mean the first or next term at which, under the law and rules of the court, the accused could be lawfully tried, and hence a recognizance conditioned for the appearance of the accused on the first day of a given term, which is in fact the next term for criminal business, will not be variant from the averment.
    7. Coubts—designating terms for criminal business, and for the civil docket. Under section 91, chapter 37, of the Bevised Statutes, a circuit judge is authorized to designate, by an order to be entered of record, what term or terms shall be devoted exclusively to criminal business, and what .to civil business only, and to direct that all process, etc., shall be made returnable to the appropriate terms as thus designated..
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.
    Mr. J. N. Sprigs, and Messrs. Carter & Covert, for the appellant:
    The writ of scire facias addressed to the sheriff of Adams county, and thé return thereon, should be quashed. Rev. Stat. chap. 38, sec. 310.
    The scire facias is a judicial writ, founded upon matter of record, and must pursue the terms of the record. Hicks v. State, 3 Ark. 313.
    ' A variance between the record declared on and the one introduced iú |6vidence is fatal. Giles v. Shaw, Breese, 87.
    The recognizance offered in evidence is void. Coleman v. State, 10 Md. 168; State v. Johnson, 13 Ohio, 176; State Treasurer v. Danforth, Brayt. (Vt.) 140; Corne v. Bolton, 1 S. & R. 328; State Treasurer v. Wells, 27 Vt. 376; State v. Sullivan, 3 Yerg. 281; Butler v. State, 20 Miss. (12 S. & M.) 470; Adams v. People, 12 Bradw. 380; Manes v. People, 20 Texas, 38; Coleman v. Edwards, 4 Bibb. 357.
    It was not conditioned for appearance at the next term of the circuit court, after the same purports to have been entered into. Rev. Stat. chap. 38, sec. 294; chap. 37, sec. 78.

      It is also a variance from the recognizance averred in the scire facias.

    It is not conditioned for appearance at the same couyt. State v. Johnson, 13 Ohio, 176.
    It purports to be sealed, and is not averred to be under seal in the scire facias. McFaddon v. Fortier, 20 Ill. 509; Chilton v. People, 66 id. 503.
    The supposed forfeiture offered in evidence is in the nature of a final judgment, and is a variance from the averment in the scire facias. Sans. v. People, 3 Gilm. 331; Kennedy v. People, 15 Ill. 418; Banta v. People, 53 id. 436; Weese v. People, 19 id. 643; People v. Watkins, id. 120.
    Mr. Oscar P. Bónney, States Attorney, for the appellee:
    The writ of scire facias was properly addressed to the sheriff of Adams county. Rev. Stat. chap. 38, sec. 310.
    The return of the sheriff, indorsed thereon, was sufficient and proper. Chickering v. Failes, 26 Ill. 507.
    There were no defects apparent upon the face of the scire facias to Adams county, or the return thereon. Rev. Stat. sec. 310, chap. 38.
    The demurrer to the third plea was properly sustained, because the scire facias issued upon a record which shows that the recognizance was taken, approved and certified, and the plea seeks to contradict the record. It amounts to a plea of nul tiel record, and is not good pleading. Mooney v. People, 81 Ill. 135.
    That the recognizance was delivered to the clerk of the court before which the accused was bound to appear, is a question which can not be raised except by plea of nul tiel record. Bulson v. People, 31 Ill. 409.
    The proceeding by scire facias in this case could be maintained only in' the court in which the recognizance was taken or acknowledged, or to which it was by law returnable. Crisman v. People, 3 Gilm. 351; Adams v. People, 12 Bradw. 380;
      Commonwealth v. Downey, 9 Mass. 520; Commonwealth v. Duggett, 16 id. 447.
    The pleadings determine what the issue is. In this proceeding it is formed on the replications to the pleas of nal tiel -.record. That issue is properly determined by the court from .an inspection of the record. 1 Chitty’s Pl. 557, 600; 3 id. 994, 1181; 8 Serg. & Rawle, 293.
    Any defect in the return of the officer, or the service of the ■writ, has been cured by the appearance of the defendants. Smith v. Byrd, 2 Gilm. 412; Radcliff v. Noyes, 43 Ill. 318 ; Bills v. Stanton, 69 id. 51; Abbott v. Sample, 25 id. 107; O’Brien v. Haynes, 61 id. 494; Wesson v. Cone, 86 id. 46.
    The execution of the recognizance admits the official character of the party taking the same. People v. Meacham, 74 Ill. 292.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 18th day of October, 1884, before John A. Allen, a justice of the peace of Adams county, Thomas J. Petty, as principal, and James M. Petty, as surety, entered into a recognizance to the People of the State of Illinois, in the sum •of $1000, conditioned as follows:

“The condition of this recognizance is such, that if the above bounden Thomas J. Petty shall personally be and ■appear before the criminal court of the said county of Adams •on the first day of the next term thereof, to be holden in the •court house in Quincy, on the third Monday of January, A. D. 1885, and from day to day, and from term to term, thereafter, ■until discharged by order of said court, then and there to answer to the said People of the State of Illinois, on said •charge of larceny of a horse, and then and there answer and •abide the order and judgment of said court, and thence not ■depart the same without lawful permission, then, in that case, -this recognizance to become void, otherwise to remain in full force and virtue.”

This recognizance was filed in the Adams circuit court ort the 19th of December, 1885, and at the. May term of said court, to-wit, on the 23d day of May, 1885, the accused not-appearing, said recognizance was adjudged and declared forfeited, and an order to that effect was duly entered of record.

On the 4th of August, 1885, a writ of scire facias was issued upon said judgment of forfeiture, directed to the sheriff of said Adams county, for service, and the same was by him subsequently returned into said court with the following indorsement thereon:

“I can not in my county find the within named Thomas-J. Petty and James M. Petty, as I am within commanded.
This 21st day of September, A. D. 1885.
Ben Heckle, Sheriff of Adams county.”

The appellant, James M. Petty, alone appeared and plead to the scire facias. A motion to quash having been overruled, the defendant interposed, altogether, twelve pleas to the scirefacias. Issues of fact were formed upon the first, second, fifth and sixth, all of which were determinable by the record. Demurrers were sustained to the remaining pleas. When the' cause was reached, upon the call of the docket, the court, upon- an inspection of the record, found the issues in favor of the plaintiff, and thereupon entered judgment against the-defendants, and in favor of the People, for the sum of $1000, the amount specified in said recognizance, and costs of the-proceeding, which, on appeal, was affirmed by the Appellate' Court for the Third District. The inquiry here 'is, whether the record of the proceedings in the circuit court discloses-any errors of law for which the judgment in that court should have been reversed by the Appellate Court.

It is first objected, that the circuit court erred in overruling: the motion to quash the scire facias, and the return thereon. It is insisted the writ is void, because it, in express terms, confines the sheriff, in making service, to the limits of his own. county, and that the return is insufficient because, for aught that appears from it, the sheriff might have found and served the defendants within the State, though outside of Adams county. This view of the matter is without force. The procedure in cases of this kind, so far as the issuing, service and return of the writ are concerned, is governed by the 369th section of the Criminal Code. (Starr & Curtis’ ed. Eev. Stat. 837.) That section directs, that “the court, upon declaring the recognizance forfeited, shall issue a scire facias against the principal and his sureties, returnable on the first day of the next term of the court, to show cause why such judgment should not be rendered against such person and his sureties for the amount of the recognizance, which scire facias shall be served by the sheriff of the county where the court is held, upon such person and his sureties, at least five days before the first day of the term to which the same is returnable, and in case the person aforesaid can not be found by the sheriff, he shall make return of that fact to the court. The court shall thereupon enter judgment, by default, against the defendants, for the amount of the recognizance, unless the defendants shall appear and defend such cause, ” etc. There is no provision of law requiring the scire facias to be sent outside of the county in which the court is held, for service. Nor is there any law authorizing a sheriff to serve it in any other county than his own, and without an express provision of the statute to that effect he clearly would have no right to do so. The return of the sheriff, therefore, was entirely proper. Under a former statute, actual service, or a return of two nihils, was necessary to' give the court jurisdiction of the persons of the defendants. One, however, is now sufficient, and is equivalent to personal service. We see nothing defective, or even irregular, in the respects mentioned.

As to the ruling of the court in respect to the several pleas to which a demurrer was sustained, we think the appellant has no ground to complain. Without going into detail, it may be said, in general terms, that in so far as those pleas were not mere attempts to impeach a record, which, of course, can not be done by mere averment, the matter set up in them was clearly covered by the other pleas upon which issues were formed and passed upon by the court, and consequently the appellant could not have been injured or prejudiced by the ruling in question.

It is next contended, there is a variance between the scire facias and the recognizance, in this, that the former charges that Petty, the 'defendant, was required by the recognizance to appear in said court to answer said charge “ore the first day of the then next term of the circuit court to be held in said county of Adams, ” etc., whereas the recognizance, which, as will be remembered, was given on the 18th of October, 1884, required the defendant to appear at the January term, 1885, notwithstanding there was an intervening term, commencing on the 27th of October, 1884, only nine days after the taking of the recognizance. If nothing further appeared, this point would seem to be well taken. It appears, however, that the circuit court of Adams county, at its. September term, 1879, made and caused to be entered of record the following order:

“Ordered, that hereafter no grand jury will be required for the March, June and October terms of this court, the same being hereby dispensed with at each of said terms, and that no People’s docket be made up by the clerk .for the use of the court or bar, nor any criminal case or proceeding placed upon any docket for trial or action to be had herein at either of said terms of court, and that all process that may issue, and all proceedings to be had in any civil matter or cause, shall be made returnable to and done at said March, June and October terms, respectively. And it is also ordered that the January, May and September terms of this court be devoted to criminal business exclusively, or to the trial and disposition of such cases and proceedings as are usually placed upon the People’s docket; that all writs, subpoenas, recognizances, appeals, and proceedings in or relating to the same, shall be made returnable to and done at said January, May and September terms, respectively, and no civil proceeding shall be placed on the docket for trial, or any action be had therein, at such January, May and September terms, or either of them; and all such causes or proceedings as may be pending at the September term, 1879, shall, without any special or further order therein, stand continued until the October term, 1879 ; and it is further ordered that said March, June and October terms of this court shall be devoted exclusively to civil business.”

The power to make this order is clearly conferred by the 91st section of chapter 37 of the Revised Statutes. (Starr & Curtis’ ed. 713.) Indeed, the authority of the court to make it is not questioned. In passing upon the question under consideration, this order, and the section of the statute just referred to, must be considered in connection with section 369 of the Criminal Code; above cited. Construing the averment in the scire facias in the light of these sections of the statute, and the order of the court in question, we do not think it would be going beyond the bounds of fair and legitimate construction to say that the words, “on the first day of the then next term, ” etc., must be taken to mean “the first or next term,” etc., at which, under the law and rules of court, the accused could be lawfully tried or compelled to answer. For the purposes of the offence the accused was recognized to answer, the intervening October term was the same as no term at all, and, as already indicated, we think it should be so treated in construing the averment in question. Taking this view of the matter, it follows the recognizance was properly admitted in evidence.

The only remaining point urged as a ground of reversal, which we deem worthy of special notice, is one which assails the validity of the recognizance itself. By recurring to the condition of the recognizance, as above set forth, it will be perceived that it does not, in express terms, require the accused to appear before the circuit court of Adams county. The exact language used is, that he “shall personally be and appear before the criminal court of said county of Adams on the first day of the next term thereof, to be holden in the court house in Quincy on the third Monday of January, 1885.” This court will take judicial notice that there is no court in Quincy, or Adams county, called or known as the criminal court of Adams county. The word “criminal,” therefore, must have been used in that connection to describe the court, rather than to designate it by its supposed name, the word having reference to the character of the business,—that is, criminal business,—to be transacted at the term of the court to which the accused was required to appear. We do not doubt at all that a recognizance which does not in substance specify the court, and the term of the court, at which the accused is required to appear, is inoperative and void for that reason, yet Ave think this may be done without giving the technical name of the court by which it is legally called and known. In the present case, it must be conceded the legal and technical name of the court does not anywhere appear in the recognizance. The object of naming the court is obviously to enable the accused to knoAV of a certainty before what tribunal he must appear. This would seem almost indispensable where two or more courts exercising the same jurisdiction are in session at the same time and place. But after all, if in any case sufficient appears in the recognizance to enable the accused to know, beyond a reasonable doubt, the tribunal before which he is required to appear, the object of naming the court in express terms is fully answered, whether so named or not. Such, we are of opinion, is the case here. The time and place of appearing are specifically stated in the recognizance, and no other court recognized by law having power or jurisdiction to hear or determine a charge of horse stealing could lawfully have been in session, or entitled to convene at that time and place, except the circuit court of Adams county. Had the accused appeared at the time and place specified in the recognizance, about which there was no uncertainty whatever, he would have found that court,— the only one in the world authorized to hear and determine the charge against him,—in session, ready to consider the charge in due course of business. We are satisfied the accused has not been misled by reason of the alleged defect in the recognizance, and to allow the objection to prevail, would be, in our -judgment, to defeat the ends of justice by a mere technicality. This ought not to be done. The tendency of legislation, as well as the decisions of the courts, is to have legal controversies of all kinds disposed of on their merits, and not upon mere technicalities.

The view we have taken of this case comes not only within the spirit but the very letter of sections 361 and 370 of chap-38 of the Revised Statutes, and is fully warranted by the provisions of those sections.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    Lewis W. Leach v. The People ex rel. O. P. Patterson, Collector.

      Filed at Springfield October 6, 1886.

    1. Practice in the Supreme Court—extension of time to file record. After the second day of the term of this court, when twenty days have intervened between the last day of the term at which the judgment appealed from was rendered, and the first day of the next term of this court, it is too late to enter a motion for an extension of the time in which to file a transcript of the record.
    2. Same—of record showing when court adjourned. To show how long before the sitting of this court the court from which an appeal was prayed had adjourned, a paper purporting to be a transcript of the record of the court below was filed, which simply stated when the term of that court commenced, who was present, and that the court adjourned on a certain day, but set out no order of adjournment, and was not certified as being a transcript: Held, that it could not be received as evidence of the time such court adjourned.
    Appeal from the County Court of Wayne county.
    Messrs. Hopkins, Bell & Green, for the appellant.
    Mr. George Hunt, Attorney General, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

Section 72 of the Practice act, as amended by the act of 1879, (Sess. Laws, p. 221,) provides: “Authenticated copies-of records of judgments, orders and decrees appealed from,, shall be filed in the office of the clerk of the Supreme Court- * * * on or before the second day of the succeeding term of said court: Provided, twenty (20) days shall have intervened between the last day of the term at which the judgment,, order or decree appealed from shall have- been entered, and the sitting of the court to which the appeal shall be taken ; but if ten (10) days, and not twenty (20) days, shall have-intervened, as aforesaid, then the record shall be filed, as aforesaid, on or before the tenth (10th) day of the succeeding term, otherwise the said appeal shall be dismissed, unless further time to file the same shall have been granted by the-court to which said appeal shall have been taken, upon good, cause shown. ” No authenticated copy of the record in this cause was filed in the office of the clerk of this court- on or before the second day of the term to which the alleged appeal was taken. On the third day of the term a motion was made-for an extension of time, in which to file such copy of the-record, but that motion was denied, for the reason it was not-made in apt time, as required by the uniform practice in this-court. It was not made until after the second day of the-term, and it has always been held that is too late. -No such. motion will be entertained after the second day of the term, unless in that class of cases where ten days, and not twenty days, have intervened the last day of the term at which the judgment, order or decree appealed from shall have been entered, and the sitting of this court. Afterwards it was suggested that an additional transcript had been filed, which disclosed the fact that ten days, and not twenty days, had intervened the last day of the term at which the judgment appealed from was entered, and the first day of the present term of this court, and the cause was then taken for decision. On looking into what purports to be an additional transcript of the record, it is seen it contains no adjourning order of the court. The paper filed is marked “placita, ” and simply states when a term of the county court of Wayne county convened, who was present, and that the court adjourned on a certain day. Even that is not certified to be a copy of any record remaining in the office of the clerk of the Wayne county court. Indeed, it is not certified at all. What is called the “placita” to a record does not usually state when the court adjourned. That can only be made known by an authenticated copy of the order of adjournment. The transcript of this record contains no adjourning order, so it can not be known, from anything it contains, that ten days, and not twenty days, have-intervened the last day of the term at which the judgment appealed from was entered, and the first day of the present term of this court, and as no authenticated copy of the record was filed in the office of the clerk of this court on or before the second day of the term, the statute is imperative the appeal shall be dismissed.

But there is another conclusive reason why the present appeal shall be dismissed. The appeal prayed by the objector was granted on condition he would file an appeal bond, in the sum of $100, within ten days from the date of allowing the appeal. The transcript of the record lodged in the office of the clerk of this court contains no appeal bond whatever. There is a statement in the transcript, presumably made by the clerk, as follows: “Bond in sum of $100, filed and approved May 27, 1886.” That is all the transcript contains in regard to the appeal bond. There can be no appeal unless it is perfected by giving bond as required by the order of the court granting the appeal, and that fact can only be made to appear by a copy of the appeal bond itself. Pickering v. Mizner, 4 Gilm. 334.

The appeal will be dismissed.

Appeal dismissed.


author: Mr. Justice Scholfield

text:
    Eugene Dougherty v. The People of the State of Illinois.

      Filed at Springfield October 6, 1886.

      1. Criminal law—proof of the venue—how far necessary. Where the record in a criminal case purports to contain all the evidence, it must affirmatively appear, from the evidence so preserved, that the offence charged was committed in the county alleged in the indictment, or a judgment of conviction will be reversed.
    2. On the trial of one upon the charge of murder, alleged to have been committed in Cook county, Illinois, the witnesses, as their evidence was recited in the bill of exceptions, referred to streets and localities by name, without indicating in what county, or even in what city, they are, and did not mention any fact or circumstance showing, by necessary inference, that such streets or localities must be in the city of Chicago, or elsewhere in Cook county: Held, that as the record failed to show any proof of the venue of the crime, a conviction therefor could not be sustained on error.
    3. Amending bill of exceptions—after the term—as to matters to amend by. An amendment of a bill of exceptions, incorporating therein evidence not in the original bill, should not be allowed at a term subsequent to that at which the trial is had, unless there is something in the record by which to amend; and the memorial paper or minute by which a record may be amended, must be made and preserved as a part of the record, pursuant to law.

      4. Where, after the time allowed for the signing and filing of a bill of exceptions had passed, a bill of exceptions was amended by the court, incorporating therein other and further evidence, not by anything appearing of record, but upon the testimony of witnesses as to the evidence given on the trial, it was held, that such amendment was unauthorized, and could not be considered.
    Writ op Error to the Criminal Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. John Gibbons, for the plaintiff in error:
    The court below had no power, after the expiration of the term, to change the bill of exceptions, except by consent entered of record. Railway Co. v. People, 106 Ill. 652; Wallahan v. People, 40 id. 103; Burst v. Wayne, 13 id. 664; Evans v. Fisher, 5 Gilm. 453.
    As to the meaning of the words, “something to amend by, ” see Bacon’s Abridg. title “Amendment F; ” Wynne v. Thomas, Willis, 563; King v. King, 7 Mod. 250; Albers v. Whitney, 1 Story, 310; Hamilton v. Burch, 28 Ind. 233.
    As to amendments of record after the term has elapsed, see Goucher v. Patterson, 94 Ill. 526; Savings Institution v. Nelson, 49 id. 171; Becker v. Santer, 89 id. 596; Cook v. Wood, 24 id. 295; Church v. English, 81 id. 442; Railroad Co. v. Holbrook, 72 id. 419.
    A bill of exceptions signed by the judge can not be subsequently changed, unless made before adjournment, and while the matter is in fieri. (Posey v. Beale, 69 Ala. 32.) It can not be signed after the term without a written agreement to that effect. (Ex parte Mayfield, 63 Ala. 203.) The court has no power to amend the bill by incorporating therein “and this was all the evidence. ” (Seig v. Long, 72 Ind. 18.) When the judge has signed the bill he has exhausted his power. He can not subsequently alter it. (Jones v. State, 64 Ga. 697.) When the bill of exceptions is signed by the judge, and filed in the cause, it becomes a part of the record, and is not subject to amendment. If wrong when made a part of the record, it must remain so, for no authority "exists for its correction, either by the Supreme Court or the court who signed it. Bridges v. Kendall, 58 Miss. 828; Bank v. Kinsey, 5 Ala. 9; Kitchen v. Moye, 17 id. 394; People v. Romero, 18 Cal. 89; Heard v. Heard, 8 Ga. 380; Georgia v. Powers, 14 id. 388 ; Hamilton v. Burch, 28 Ind. 233; Givens v. Bradley, 3 Bibb. 192; Shepard v. Hull, 42 Maine, 577; Stimpson v. Railroad Co. 3 How. 553.
    Mr. W. D. Munhall, also for the plaintiff in error:
    In a criminal ease the record must show that the crime was committed in the county charged in the indictment, or the judgment must be reversed. Rice v. People, 38 Ill. 435 ; Jackson v. People, 40 id. 405; Sattler v. People, 59 id. 68.
    This is an essential and substantial part of the law of the-land, and it could not be otherwise. Rooks v. State, 65 Ga. 330; State v. Hughes, 71 Mo. 633; State v. Hartnett, 75 id. 251; Wharton on Crim. Ev. (8th ed.) sec. 107, and cases cited; Wharton on Crim. Law, (8th ed.) sec. 278.
    Omission to prove venue, is fatal. Wharton on Grim. PL. and Pr. 139.
    Mr. George Hunt, Attorney General, for the People:
    It is sufficient if the proof show that the crime was committed in the county and State where the indictment was-found and trial had, even though the name of the county or State be not formally stated in the evidence. -
    When the court below allows an amendment, in the absence-of anything showing to the contrary, it will be presumed there was something to amend by. Wallahan v. People, 40 Ill. 103.
    As to the power of the trial court to allow an amendment, of a bill of exceptions, reference is made to Devine v. People, 100 Ill. 290; Goodrich v. City of Minonk, 62 id. 123; Newman v. Ravenscroft, 67 id. 496.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The defendant and others were indicted by the grand jury of Cook county for the crime of murder, committed in that county, and on trial in the Criminal Court of Cook county, at its March term, A. D. 1883, the defendant was convicted of the crime, and sentenced to the penitentiary for the term of his natural life. The court, at the same time, made an order that the defendant have sixty days within which to file a bill of exceptions, and accordingly a bill of exceptions was signed by the judge before whom the trial was had, and filed in the office of the clerk of the Cook circuit court, on the 22d of May, A. D. 1883. The evidence preserved in that bill of exceptions fails to show where the crime was committed. The witnesses, as their evidence is therein recited, refer to streets and localities by name, without indicating further, however, in what county, or even in what city, they are; nor do the witnesses mention any fact or circumstance showing, by necessary inference, that such streets or localities must be in the city of Chicago, or elsewhere in Cook county. True, there may be streets and localities of the same names in the city of Chicago, but so there also may be in other cities, and no rule of law requires us to judicially know that those referred to by the witnesses are in the city of Chicago, or elsewhere in Cook county. The same names will often be found to be applied to streets and public localities in different cities. The principle is as well settled as is any other applicable to criminal trials, that where the record brought to this court on writ of error, in a criminal case, purports to contain all the evidence given on the trial below, it must appear affirmatively, from the evidence, that the offence charged was committed in the county alleged in the indictment, otherwise a judgment of conviction will be reversed. Rice v. The People, 38 Ill. 435 ; Jackson v. The People, 40 id. 405; Sattler v. The People, 59 id. 68.

The People, however, claim to have obviated this objection by an amended record, filed in this court on the 6th day of January, A. D. 1886. In this record, an order of court is made at the December term, A. D. 1885, of the Cook Criminal Court, (which, it will be observed, is some two years and three-fourths after the expiration of the term at which the defendant was convicted, and more than two years and a half after the expiration of the time from which the defendant was allowed to and did file his bill of exceptions,) in which order it is recited that “the said bill of exceptions be and hereby is amended, by adding thereto the fact that the crime for which the said defendants in the said above entitled cause were tried, was perpetrated and committed in the city of Chicago, county of Cook, and State of Illinois.” The general rule, as recognized by this court, is, the bill of exceptions must be taken and signed during the term at which the cause was tried, except in cases where counsel consent, or the judge, by an entry on the record, directs, that it may be prepared in vacation, and signed nunc pro tunc. (Evans v. Fisher, 5 Gilm. 453; Burst v. Wayne, 13 Ill. 664; Wabash, St. Louis and Pacific Ry. Co. v. The People, 106 id. 652.) In Wallahan v. The People, 40 Ill. 104, we said: “An amendment of a bill of exceptions, incorporating evidence alleged to have been omitted from the original bill of exceptions, should not be allowed at a term subsequent to that at which the trial was had, unless there is something in the record to amend by. ”

It clearly appears from this amended record, that there was nothing here, in the record, to amend by. There was no memorial paper or minute in the case from which what was actually proven on the trial can be clearly ascertained and known, which is indispensable in such cases, (Albers v. Whitney et al. 1 Story, 310; 1 Bacon’s Abridgment, title “Amendment, F.”) The memorial paper or minute, by which a record may be amended, must be made and preserved as a part of the record, pursuant to law. A private memorandum of a witness is not sufficient. The amended record here affirmatively shows that this amendment to the bill of exceptions was made alone upon the testimony of witnesses as to their recollection of what evidence was given on the trial. If bills of exceptions may be thus amended, what is the limit to the time ? And may not the amendment itself, in like manner, be subsequently amended, thus leaving the matter of bills of exceptions to rest entirely in the frail, and, it might often be, corrupted, memory of witnesses ? The common law rule in this respect is in force here, and under it no such amendment is admissible. Hamilton et al. v. Bursch et ux. 28 Ind. 233; Bridges v. Kuykendall & Bro. 58 Miss. 828; The People v. Romero, 18 Cal. 89.

The motion to strike j¿he amended record from the files is sustained, and for the error in the record in failing to show in what county the offence was committed, the judgment is reversed, and the cause remanded for a new trial.

Judgment reversed.


author: Mr. Justice Craig

text:
    Moses Deere v. Isaac Cole et al.

      Filed at Springfield October 6, 1886.

    1. Highway—changing the line of the road—power of the commissioners. Where the petition, survey and order establishing a public highway, all describe the road as on a section line, the commissioners of highways will have no power to open the same except upon the line so described. They will have no right, in opening the highway, to take lands not actually condemned, or change the line of the road.- If they attempt to do so they may be enjoined.
    2. Presumption—in support of finding of facts. Where the evidence in a suit in chancery as to the location of a disputed corner of four sections of land is conflicting, and of such a character as to render it difficult to find on which side it preponderates, this court will not reverse the decision of the. Appellate Court in affirming the decree of the circuit court.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Champaign county; the Hon. J. W. Wilkin, Judge, presiding.
    Messrs. Gebe & Beabdsley, for the appellant:
    In this case the burden of proof is upon the appellees to justify their acts, by showing that they were entering appellant’s land on the section line, as that is the line on which the record calls for the road. McIntyre v. Stoney, 80 Ill. 127; Owens v. Crossett, 105 id. 354.
    It is admitted by all that the corner for sections 4, 5, 8 and 9 is a lost corner. There is no witness who undertakes to say that the location of the original corner can be identified by one who saw the government monument.
    The statute law of this State provides that county surveyors, in making their surveys, shall make the same in accordance with the original surveys and the laws of the United States governing surveys. Rev. Stat. sec. 5, chap. 133.
    The act of Congress, approved February 11, 1805, provides that “the boundary lines actually run and marked” in the field, shall be established as the proper boundary lines of the sections or subdivisions for which they were intended; and the length of such lines, as returned by the surveyors, shall be held and considered the true length thereof, etc. 2 U. S. Stat. at Large, p. 313, sec. 2396.
    As to the true and proper survey to establish a lost or disputed corner, see Martz v. Williams, 67 Ill. 306; McCormick v. Hughes, 78 id. 363; McClintock v. Rogers, 11 id. 279; Francois v. Maloney, 56 id. 399; Jones v. Kimble, 19 Wis. 429; Moreland v. Page, 2 Iowa, 139; Thomas v. Patton, 13 Maine, 329; Wolfe v. Scarborough, 2 Ohio St. 363.
    The survey filed constitutes the written, permanent record evidence of the exact land taken. Mills on Eminent Domain, sec. 116.:

      If the road has been once opened and used, the. question •would be, where is the place where the road was opened ? If not yet opened, it must be opened according to the record. Commissioners v. Killham, 58 Ill. 347.
    Mr. Francis M. Wright, for the appellees:
    The survey of the road, as it was actually made, must govern. Hines v. People, 34 Ill. 297.
    The issue was, whether appellant had obstructed a public highway, and to determine that fact it was necessary to find the precise line or place where the road was actually located. Hines v. People, 34 Ill. 297.
    As to the mode of ascertaining a lost corner section,, coun•sel examined the eases cited by appellant, and the evidence ■on that point.
    A complainant is confined to the grounds of relief stated In his bill. Page v. Greeley, 75 Ill. 400; Morton v. Smith, 86 id. 117; Morris v. Tillson, 81 id. 607; Tuck v. Downing, 76 id. 71.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by appellant, Moses Deere, do enjoin the commissioners of highways of the town of Sidney, in Champaign county, from opening a certain highway which had been laid out from the north-east corner of the west half of the north-west quarter of section 10, running thence west on section line between sections 3 and 10, and •4 and 9, to intersect a certain road running north and south between sections 4 and 5, 8 and 9. The complainant in the bill owned and occupied the south-west quarter and the west half of the south-east quarter of section 4, in the town of .Sidney, and it is claimed by him that the highway'which the ■commissioners were attempting to open, was not on the section line, but some fifty feet north of it, at the east line of his land, and two hundred feet north of the line, at his west line. The petition for the highway upon which the commissioners acted, prayed for the location of the road upon the-section line. The survey of the route made by the surveyor-employed by the commissioners, professed to locate the highway on the section line, and the order establishing the road ordered that the highway be laid out according to the prayer of the petitioners, as shown by the plat and survey of said road.

The petition, the survey, and the order establishing the highway, all unite in laying the road on the section line, and we think it is manifest that the commissioners had no authority to open the road except upon the line where it was establiskedThe land actually condemned for public use may be taken and appropriated by the commissioners of highways for the purpose for which it was condemned, but the commissioners had no right whatever, in opening the highway, to take other land, or change the line of the road, and open it upon land where it had not been laid out. The commissioners contend that-the road was laid on the section line, and that the lands upon, which they entered to open the highway were on the section line, while, on the other hand, the appellant insists that the commissioners had departed from the true section line, and were attempting to open the highway over and upon other-lands. The point at which the road started is at a recognized corner, upon which both parties agree, but the dispute-arises as to the western terminus of the road,—the section corner of sections 4, 5, 8 and 9. This original corner can not be found, and its location is a question upon which surveyors of equal skill and ability do not agree. On the hearing in the circuit court, much evidence was introduced by both parties in regard to the location of this disputed corner, and upon the evidence the circuit court found in favor of the defendants, and entered a decree dismissing the bill. On appeal, this decree was affirmed in the Appellate Court.

"VYe have given the evidence contained in the record a careful consideration, and while there may be some doubt in regard to the decision of the circuit court on the evidence, yet there is no such preponderance of the evidence in favor of the complainant, and against the decree, as would justify a reversal of the decision of the Appellate Court affirming the decree of the circuit court. It would serve no useful purpose to enter upon a discussion of the evidence introduced by the respective parties as to the location of the corner in dispute. There is much conflict in the evidence, and it is somewhat difficult to determine upon which side of .the controversy the evidence preponderates. Under such circumstances, it is not the duty of this court to reverse the decision of the Appellate Court. If it was clear, from the evidence, that the location of the corner in dispute was at the point claimed by complainant, then we should not hesitate to reverse; but such is not the case.

The record presents no error, and the decision of the Appellate Court will be affirmed.

Decree affirmed.