for a failure of Graves to account for and pay over money and property received by him in his official capacity as conservator. December 20, 1916, "pursuant to the order of court heretofore entered on the 9th day of December, 1915," Graves filed an amended inventory, in which he listed cash on hand $2015.22. The inventory was approved by the probate court. On the same day he filed his final account, charging himself with cash received $2015.22 and with cash disbursements $72.50, which was approved by the court. Under the caption "Recapitulation" in the final account are the statements, "Cash in bank ready to be turned over, $42.50;" "Balance due from Charles H. Graves individually, $1900.22." Graves made no settlement with the executrix, and on May 21, 1917, the probate court entered an order reciting that a rule had been entered by the court December 20, 1916, against Graves to show cause by January 10, 1917, why he had not paid the executrix $1942.72, shown by his final account to be due and unpaid, and that after the court had heard the testimony of witnesses examined in open court and arguments of counsel, it was ordered that Graves pay to the executrix, within thirty days, said sum of $1942.72. No appeal was prosecuted from that judgment or order and it remains unreversed. Graves was willing to pay the executrix $42.50 but failed and refused to pay the balance of the sum he was ordered to pay, and thereupon this suit was brought against the surety, plaintiff in error here.

Plaintiff in error denies it is liable as surety for Graves because, as stated, it is claimed the money never came into the hands of Graves in his official capacity as conservator but that it is an individual debt he owed Laura E. Williams before he became her conservator, and it never was received by him or came into his hands as such conservator. The further claim is made that Graves was insolvent at the time he was appointed conservator and has ever since remained insolvent and unable to pay the money. This was a dis

puted question, upon which evidence heard by the court on the trial of this case was not entirely harmonious. However, in the view we take of the case that is not an important question and was incompetent under the state of this record. A number of courts in this country have held that where a debtor is appointed administrator of his creditor's estate the debt is considered paid and the administrator is chargeable with receiving the amount of it, regardless of his financial condition. Some other States have not adopted that rule in its entirety and have held it permissible for the administrator to show he was insolvent at the time of his appointment and so remained during his term of office, and thereby relieve himself from liability, as administrator, to pay over the debt he owed the estate. (Wachsmuth v. Penn Mutual Life Ins. Co. 241 Ill. 409.) But a different situation is here presented. No proof was offered in the probate court on the question of the insolvency of Graves. That court had jurisdiction of the subject matter and the parties at the time it rendered judgment, May 21, 1917. It was a valid, binding judgment until reversed by appeal or writ of error. The attempt to prove the insolvency of

Graves on the trial of this case in the circuit court amounted to a collateral attack on the judgment of the probate court and was not competent. Until that judgment was reversed in a direct proceeding for that purpose it was a determination of the amount due from the conservator to the executrix, was binding on him and his sureties, and cannot be impeached except for fraud in a suit on the conservator's bond. McDonald v. People, 222 Ill. 325; Frank v. People, 147 id. 105; Nevitt v. Woodburn, 160 id. 203.

The judgment of the Appellate Court is affirmed.
Judgment affirmed.

(No. 13079.-Reversed and remanded.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. HENRY W. PETRIE, Plaintiff in Error.

Opinion filed October 23, 1920.

I. CRIMINAL LAW-when record may be amended to show grand jury was sworn. A cause may be continued to enable the Attorney General to have the record amended to show that the grand jury was sworn as of a certain date, where the record of the court shows that on the day following said date, which was in the term at which the conviction was had, the grand jury, "chosen and sworn as aforesaid," made their report in open court.

2. SAME-record should show defendant was instructed as to consequences of pleading guilty. A judgment of conviction on a plea of guilty cannot be sustained where the record contains no reference to the explaining of the consequences of such plea.

3. SAME-amendment of the record after term must be based upon official memorandum. The record in a criminal case may be amended after the term at which it was made, but the amendment must be based upon some official or quasi official note or memorandum remaining in the files of the case or upon the records of the court, and not upon recollection of the judge or other person nor upon ex parte affidavits or testimony after the event has occurred.

4. SAME-reporter's notes cannot be made basis for amending record after term. It is not the statutory duty of the shorthand reporter to keep notes for the judge or memoranda from which the clerk may subsequently write up the record proper, and the reporter's notes, supported by his affidavit, cannot be made the basis for amending such record after the term.

CARTER and THOMPSON, JJ., dissenting.

WRIT OF ERROR to the Circuit Court of DuPage county; the Hon. MAZZINI SLUSSER, Judge, presiding.

G. BERNHARD Anderson, George F. Anderson, GusTAV E. BEERLY, and CHARLES P. R. MACAULAY, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, CHarles W. HADLEY, State's Attorney, and FLOYD E. BRITTON, for the People,

Mr. JUSTICE DUNN delivered the opinion of the court: On a plea of guilty to an indictment charging abduction Henry W. Petrie was sentenced by the circuit court of DuPage county, at the January term, 1918, to serve an indeterminate term in the penitentiary and has sued out a writ of error to reverse the judgment.

The errors assigned include one that the grand jury which returned the indictment was not sworn, and another that the court neglected to explain to the plaintiff in error the consequences of the plea of guilty.

The cause was continued to enable the Attorney General to have the record amended, and at the January term, 1920, of the circuit court the record of the empaneling of the grand jury was amended by inserting therein as of January 16, 1918, the words: "The said grand jurors are duly sworn and charged by the court according to law." The record of the court showed the following on the 17th day of January: "Now on this day comes the said grand jury, chosen and sworn as aforesaid, into open court and make final report of their proceedings," etc. This recital of the previous swearing of the grand jury was a sufficient basis for the court's correcting the record, if any correction was necessary, in the way it did, as to the empaneling of the grand jury.

The original record of the defendant's sentence shows that on March 2, 1918, he withdrew his plea of not guilty, and "being arraigned for plea says that he is guilty as to abduction as charged in the indictment herein. And now neither the said defendant, nor his counsel for him, say anything further why the judgment of the court should not now be pronounced against him on the plea of guilty heretofore entered in this cause, therefore it is ordered and adjudged by the court" that the defendant be sentenced to an indeterminate term of imprisonment in the penitentiary. The circuit court ordered this entry amended by inserting after the plea of guilty the words: "And the court there

upon duly instructed and admonished said defendant, Henry W. Petrie, according to law, as to the consequences of his plea, and upon being so instructed and admonished the said defendant, Henry W. Petrie, persisted in his plea of guilty." The record as originally made containing no reference to the explaining of the consequences of his plea of guilty to the defendant was insufficient to sustain the judgment. (Krolage v. People, 224 Ill. 456; People v. Harney, 276 id. 236.) There was no minute or memorial paper upon which the court based this amendment. It was founded wholly upon an affidavit of the court reporter, together with a transcript of his notes taken at the time the plaintiff in error was sentenced. In Hubbard v. People, 197 Ill. 15, we held that the record in a criminal case may be amended after the term at which it was made but that the amendment must be based upon some official or quasi official note, memorandum or memorial paper remaining in the files of the case or upon the records of the court and not upon the recollection of the judge or other person or upon ex parte affidavits or testimony after the event has occurred. It was also held that it is not the duty of the shorthand reporter to keep notes for the judge, or memoranda from which the clerk may subsequently write up the record; that his notes, therefore, cannot be made the basis for amending the record, and that his affidavit is of no more force for that purpose than that of any other bystander.

Other errors assigned and argued on behalf of the plaintiff in error have been decided against his contentions in People v. Doras, 290 Ill. 188, and People v. Connors, 291 id. 614.

The amendment of the record in regard to the explanation of the consequences of the plea of guilty was not authorized. For the failure of the record to show that the consequences of his plea were explained to the defendant the judgment is reversed and the cause will be remanded. Reversed and remanded.