22 236 58a 107.

Greenleaf, School Commissioner, etc., v. Township Trustees.

We cannot avoid remarking here upon the apparent negligence of the State's attorney in taking a judgment under such circumstances. On discovering the defect, which he should have done, he should have moved for a continuance for the purpose of having the lost record supplied and then have brought up the amended record by certiorari. It is possible this may yet be done and a good judgment rendered in the Recorder's Court.

Judgment reversed.

WILLIAM GREENLEAF, School Commissioner, etc., Plaintiff in Error, v. TRUSTEES OF TOWNSHIP No. 41 N., R. 14 E., Defendants in Error.

ERROR TO COOK.

The legislature may unite or divide townships, and their school funds, at discretion.

THIS was a petition by H. B. Hurd, one of the trustees of Town 41 N., R. 14 E. of 3rd P. M.

The petition states that W. L. Greenleaf is school commissioner of Cook county, and has moneys in his hands as such, etc. That George H. Reynolds and others are trustees of T. 41 N., R. 14 E., etc.

That by the laws of this State, of 16th February, 1857, it was provided that each congressional township, is established a township for school purposes.

That by a law of 17th of February, 1857, it was enacted, "That the town of Evanston comprises all of fractional township forty-one North, of Range fourteen East, and Sections 12, 13, 24, 25, 36, of Township 41 West, of Range 13 East, the Archange Oalmet Reserve, and fractional Sec. 22-26 and 27, in Township 42 North, Range 13 East, and that the same form and constitute a township for school purposes, to be known as Township 41 N., R. 14 E.

"That all acts conflicting therewith are repealed."

Petitioner claims that said sections above stated, and the acres and number of children therein, should be added to and made a part of the basis of distribution of said school funds to the township 41 North, Range 13 East, 3rd P. M., and that the school commissioner for Cook county, divide to the last mentioned township, whatever proportion of said school money will

Greenleaf, School Commissioner, etc., v. Township Trustees.

be coming to said township, after the same has been so added. Prayer that a mandamus issue, commanding the school commissioner to pay same accordingly.

The answer of W. L. Greenleaf states, that he is advised that so much of the 2nd section of the act entitled "An act to establish the town of Lakeview, in Cook county, and to change the name and boundaries of the town of Ridgeville, and to constitute the same a township for school purposes," approved February 17, 1857, as purports to create a township for school purposes, by the name of "Township 41 North, Range 14 East," is repugnant to the act of Congress, approved April 18, 1818, which provides that section 16 in every township, etc., etc., shall be granted to the State for the use of the inhabitants of such township for the use of schools; and also to the act of Congress, approved February 15, 1843, in relation to school lands.

Demurrer by petitioner to the answer of the school commissioner. To this, there was a joinder.

The court, MANIERRE, Judge, presiding, sustained the demurrer, and ordered, that the money in the hands of the commissioner, be distributed in accordance with the prayer of the petition. From this decision this appeal was taken.

E. VAN BUREN, for Plaintiff in Error.

H. B. HURD, for Defendants in Error.

CATON, C. J. In the objection which is urged to this law, a very erroneous view is presented, of the power of the legislature. The donation is made to the State, for a specified use. The title to the fund is vested in the State, as completely as if the use was not declared in the law making the grant, and the administration of the fund is left to the State. This is so necessarily. Without State legislation, there is no mode of administering the fund. The State then, has complete control over it, to administer it as she pleases, in promotion of the objects of the grant. The faith of the State is no doubt impliedly pledged to apply the fund according to the trust declared in the act, but the legislature must exercise its best judgment, as to how that object can be best accomplished. No sovereign State would accept such a grant upon any other terms. Neither Congress or any court, has ever undertaken to interfere with a State government, in the administration of the school funds, arising from congressional grants. The public faith of a State, has ever been, and ever will be, a sure guarantee that these funds will be administered in good faith, and in the most beneficial manner, in promotion of the objects of the grant. To say that the legisla

22 238 58a 197

Stevenson v. Sherwood.

ture cannot, when it is deemed for the best interests of the cause of education, unite two townships in one, or make a township of parts of several, is asserting an impotency in a sovereign State, which would deprive it of the power to discharge the trust, as the best interests of the objects of the trust may frequently require. We have no doubt that the legislature may unite or divide townships, and their school funds, as it thinks best. The judgment must be affirmed.

Judgment affirmed.

JOHN D. STEVENSON, Appellant, v. DELEVAN O. SHERWOOD,

Appellee.

APPEAL FROM OGLE.

To justify the continuance of a cause by reason of the absence of a witness, something more than the writing of letters and making inquiries is required.

A court trying a case in place of a jury, if on announcing a finding, a motion for a new trial and in arrest are interposed, may render a judgment at a future day, after the motions are disposed of.

If the matters alleged in a special plea, may be offered in defense under the general issue, it will be presumed they were so offered.

THIS was an action of assumpsit on an assigned note, brought by appellee against appellant. The declaration has one special count declaring on a note, given by Stevenson to one T. Sweet, for $700, with twelve per cent. interest, dated 16th July, 1841, and by Sweet indorsed to Sherwood.

There was a plea of the general issue, and a special plea of payment of the note to Sweet, while he was holder and owner of it. To the special plea, there was not any replication.

At June term, 1857, defendant moved for a continuance, and in support of his motion read the following affidavits :

John D. Stevenson, the above defendant, first being duly sworn, on his oath states, that he cannot safely proceed to the trial of said cause, owing to the absence of one William H. Andrews, whose attendance or deposition it is out of the power of this affiant to have or produce at the present term of this Court; that this affiant asks to refer to his affidavit of the last term, and make it a part of this his application for a continuance. And affiant further, upon his oath, states, that immediately after the last term of this court, (not having been fully advised by said Andrews, or any one else, of the name of a proper person to act as commissioner, for the purpose of taking the deposition

Stevenson v. Sherwood.

of said Andrews,) wrote said Andrews, requesting him to give the name of a proper person to act as commissioner. To this letter affiant received an answer from a friend of said Andrews, stating that the said Andrews, a few days before, had left that section for Kansas, stating no particular place or part of Kansas the said Andrews had removed to. That affiant thereupon. wrote to the post master, and friend of said Andrews, residing in said Spencer, Massachusetts, to learn, if possible, the residence or post office address of said Andrews, in Kansas. That affiant has been unable up to this time to learn the whereabouts of the said Andrews. That he has used every consistent means in his power to obtain said knowledge, and has hitherto failed. That affiant knows of no witness by whom he can prove the payment aforesaid, but by said Andrews. And that this application is not made for delay, but that justice may be done, and that he hopes to be able to procure the attendance of said witness or his deposition, at next term of this court.

John D. Stevenson, the above defendant in this suit, first being duly sworn, on his oath deposes and says, that he cannot safely proceed to trial of the above cause, at this term of court, owing to the absence of William H. Andrews, whose attendance or deposition it is out of the power of this defendant to have at this term of court. That this affiant expects to be able to prove by the said Andrews, that the note on which the above action. has been brought, has been fully paid and satisfied by this affiant. That from the time of the commencement of this suit up to the present time, this affiant has made use of the utmost vigilance to learn the residence of the said Andrews. That said Andrews, some years since, did live in the vicinity of Davenport, Iowa, which was the last knowledge this affiant had of him at the commencement of this suit. That after the commencement of this suit, he wrote to an acquaintance at Davenport, and to other places in the vicinity. That he was advised by answer he received, that said Andrews had removed to the western part of Iowa, but what particular place this affiant could not learn. This affiant further states, that after the September term of this court, 1855, affiant was advised by one Daniel Higley, who was a connexion of said Andrews, that the said Andrews was still somewhere in the western part of Iowa, and that said Higley was a brother-in-law, residing in Iowa, from whom he could learn the residence of the said Andrews. That some time afterwards said Higley advised this affiant that he had heard from his brother-in-law, who advised him that said Andrews has removed to the State of New York, but what place, said Higley was unable to advise affiant; and from that time to the present, affiant has used the utmost diligence, by inquiry and writing, to learn the residence or whereabouts of the said Andrews, none

Stevenson v. Sherwood.

of which proved favorable; and that affiant had despaired of learning the residence of said Andrews, when a son of said Andrews, a young man of some eighteen years of age, came to the residence of affiant, some three weeks since, and advised him that his father, the said Wm. H. Andrews, now resides in the town of Spencer, in the State of Massachusetts; that thereupon affiant wrote to said Andrews in regard to the matter of the payment of said note, and also to get from said Andrews the name of a suitable person to act as commissioner; and that within the last three days, this affiant has received a letter from said Andrews, but that he has been unable to procure his deposition at the present term of court; but that affiant will be enabled to procure it before the next term of this court; that this application is not made for delay, but that justice may be done; and that said Andrews is the only witness within the knowledge of this affiant, by whom the payment of said note could be proved.

The court overruled the motion, and defendant excepted.

There was a trial by the court, and the issue was found for plaintiff, whereupon defendant entered his motion in arrest of judgment, and for a new trial.

These motions were overruled.

Judgment rendered for $76.40, debt, and $153.80, damages and costs.

Defendant appealed, and for errors, assigned the following: 1st. The court erred in trying the case with the third plea unanswered.

2nd. The court erred in overruling motion for continuance. 3rd. The court erred in rendering the judgment aforesaid.

B. C. Cook, for Appellant.

M. B. LIGHT, for Appellee.

BREESE, J. The point made on the unanswered plea is disposed of by the decision of this court, in the case of Parmelee v. Fischer, ante, 212. As to the diligence used to obtain the testimony the appellant desired, we think none such was shown as to justify a continuance. He should not have been content with merely writing. In these days of rapid communication and cheap traveling, something more than letters and inquiries, will be required.

This case was tried by the court in place of a jury, and on announcing that the issue was found for the plaintiff, a motion for a new trial and in arrest of judgment was interposed, which on being overruled after argument at a subsequent day of the term, the court pronounced judgment for the plaintiff for seven