Iverson et al. v. Loberg.

Jan. 10, 1851, administrator presented inventory and appraisal bill, showing that all the personal property consisted of household furniture, etc., appraised at $151.34; cash in hand, $12.90; one claim good, $3.50; total, $167.74. Same day, adminis trator presented a sale bill, from which it appears, that on Oct. 17, 1850, he had sold all personal property for $172.50. On same day, claims were allowed as follows: Funeral expenses, $21.75; physicians' bill, last sickness, $41.86; claim of $6.62; Sept. 8, 1851, another claim, $33.67; which comprise all the claims allowed against said estate.

Administrator paid, as expenses of administration, $38.67, incurred previous to said proceedings, which does not include expense of the sale of said land. September 20, 1852, an appraisers' bill was filed, by which the appraisers report certain articles allowed to family of deceased, and appraise their value at $342.50, which was ordered recorded September 23, 1852. October 9, 1852, an order was entered, awarding to the family of deceased, said sum of $342.50. June 8, 1858, administrator rendered account and produced vouchers, from which it appears that a portion of said claims against the estate, amounting to $56.371, was paid before the presentation of said petition. Said administrator died in 1858. Admitted that at the time of the order of sale, all the children were minors, and that there is nothing in the records or in the papers on file, further than what has been mentioned or referred to, going to show that a guardian ad litem, was appointed for said minors, or that the administrator presented an account of the personal estate and debts of the deceased.

The plaintiff objected to the deed of the said administrator, and to all the proceedings of the said County Court, in reference to the said petition for said sale, for the reason that the said County Court had no authority or jurisdiction in the premises, and the proceedings thereof in their behalf were void, for the following reasons, to wit:

1st. Because it does not appear by the petition, that the administrator had filed either an inventory, appraisement bill or sales bill, or that he had first applied the personal estate towards the payment of the debts of said intestate.

2nd. Because in the proceedings to sell said premises, no guardian ad litem was appointed for said minors or either of them, nor were they in any way made parties thereto.

3rd. Because it does not appear by said petition, that the personal estate was insufficient to pay the just claims against the said estate; and by the agreed statement of facts, it appears affirmatively, that the personal estate was sufficient to pay all just claims against said estate.

Wilder et al., impl., etc., v. City of Chicago.

4th. Because the administrator, previous to obtaining said order of sale, failed to make a just and true account, or any account, of the personal estate and debts of said intestate.

The court overruled the objections, admitted the deed, sustained the proceedings of the County Court, and rendered judgment for defendant. Plaintiffs excepted, and exceptions allowed.

The errors assigned are, that the court admitted the deed in evidence; that the court sustained the proceedings of the County Court; that the court gave judgment for the defendant and against the plaintiffs, whereas the judgment, by law, should have been for the plaintiffs, or for a portion of them.

J. S. PAGE, for Appellants.

FARWELL, SMITH & THOMAS, for Appellee.

CATON, C. J. We are obliged to affirm this judgment much against our inclination. This sale was no doubt a great outrage, and we should as at present advised, not hesitate to reverse the proceeding, were it directly before us. But here it comes up collaterally, and we cannot disregard that proceeding unless it was void for the want of jurisdiction. We cannot hold that such was the case. The petition stated enough to require the court to act in the premises,-to set it in motion, and that was sufficient to give the court jurisdiction, and whatever was done under it, was not in the exercise of an usurped power, but of one conferred by law, and although the court may have exercised that power erroneously, its orders and decisions are binding till reversed. If we are to look into any errors in that proceeding, it must be brought before us by writ of error. The judgment must be affirmed.

Judgment affirmed.

NATHANIEL P. WILDER, and GURDON S. HUBBARD, impleaded, etc., Appellants, v. THE CITY OF CHICAGO, Appellee.

APPEAL FROM COOK.

The Common Council of the city of Chicago, had power to appoint one or more collectors, in addition to the one elected by the people.

The collector was required to pay the money collected by him into the city treasury, and he could not retain any part of it for any purpose.

Wilder et al., impl., etc. v. City of Chicago.

THIS was a suit on an official bond against a city collector and two of his sureties. The eighth plea is called a plea of set-off, and sets forth that the city of Chicago was indebted to said Russell in a larger sum than the amount claimed in the declaration, for so much commissions of right due to him upon the amount of special assessments collected during the term of his office in said city, by said special collector, appointed by said city, contrary to law, to make such collections. To which a demurrer was sustained.

There was a judgment against the appellants for the amount of the bond, to be discharged on payment of the damages, etc.

J. P. CLARKSON, for Appellants.

J. L. KING, for Appellee.

BREESE, J. The questions raised upon this record, are not new to this court. They were presented, substantially, in the case of Russell et al. v. The City of Chicago, 22 Ill. 285, and there fully argued and decided, without, as we understand, the intimation of a doubt, by this court, of the propriety of the ruling. We there decided that the Common Council of Chicago, had power expressly granted to them to appoint one or more collectors, in addition to the one to be elected by the people of the city. Those to be appointed by the city were to be appointed by ballot by the council. The idea is, that under its charter the city was required to have at least one collector, but if a greater number should be found to be necessary, the common council by ballot, could appoint the requisite number, one or more. When thus appointed, they were clothed with all the rights, powers, and privileges and duties in collecting the dues to the city, as fully as they appertained to the collector elected by the people. Their power and jurisdiction would extend all over the city, if not limited by some law or regulation of the common council. Being such collectors, they had power to collect the special assessments. These points are fully decided in the case referred to. That case decides further, that, if the council had not this power, about which, however, not the slightest doubt was entertained or suggested, that did not justify the collector elected by the people to hold on to the moneys he had collected by virtue of his office, belonging to the city. The form which the same defense has now assumed, by claiming these fees as a set-off, cannot affect the merits of the question in any manner. If the defense was not available when presented in the sixth plea in the case referred to, it cannot by any legerdemain, be made available under the eighth plea in this case.

26 184

31a 652

26 184 35a 593

26 184

44a 527

Franey". True et al.

Forms are nothing-substance is everything. The sixth plea, as the eighth plea does here, distinctly presented the question, of the power of the common council to appoint additional collectors; that power being denied, the defendant insisted on his right to retain moneys in his hands belonging to the city, to an amount equal to the fees he could have made on the collections of which he had been deprived. In that plea, he justified under the right to retain moneys for these fees; under the eighth plea in this case, he proposes to set off those fees against the claim of the city. We cannot see that the form of the present eighth plea, presents the defendant's claim in any stronger or better light for him, and is disposed of by the ruling in the case cited.

We will not now attempt to put a construction on the various provisions of the charter so minutely examined, by the counsel for the appellants. It is not necessary in this case. The record shows that during the term of office of the defendant, Russell, an ordinance of the common council concerning the assessment and collection of taxes, was in full force, by which the collector was required to pay into the city treasury, all moneys collected by him as fast as collected, and at least as often as every Monday, and in the identical funds received. This being his duty, he had no right to retain a dollar, for any purpose. The judgment is affirmed.

Judgment affirmed.

THOMAS FRANEY, Appellant, v. WILLIAM M. TRUE et al.,

Appellees.

APPEAL FROM LA SALLE COUNTY COURT.

The copy of an instrument indorsed on a declaration is no part of it, and a bill of exceptions is requisite to inform the court in relation thereto.

A special and not a general demurrer, is the proper mode of taking objection to a pleading that is double.

In an action by an indorsee of a note, if the indorsement is correctly set out in the declaration, a copy of the name of the indorser need not be given with a copy of the instrument.

THIS was a declaration on a note of $155, dated August 28, 1857, due one year after date, and made by plaintiff in error, and payable to S. Bell, and indorsed by him.

Franey v. True et al.

Copy of note and account, but no copy of indorsement was given with the declaration.

Motion by defendant below for a continuance, for want of a copy of the indorsement on the note, overruled.

General issue and joinder.

Second plea, of entire failure of consideration; setting forth that the note was assigned after due; that Bell, the payee, was a manufacturer of reaping and mowing machines; that the only consideration of said note was a machine; that Bell warranted the machine to be a good article, and that the sickle would not clog in grass or grain, and that the machine would answer the purpose for which it was bought; that the plaintiff in error, relying on said warranty, bought the machine and gave the note therefor; that the machine was not a good article, and the sickle would clog in grass and grain, and would not answer the purpose for which it was bought; that the pitman and boxes were not properly made, and were not of good material, and kept breaking; and that the machine was thereby worthless.

Third plea, of entire failure of consideration, and same as the second plea, except (as to the allegations of warranty) it alleges that said Bell promised that the machine was made in a workmanlike manner, and was worth the money paid for it; that relying on said promise of said Bell, plaintiff in error bought the machine and gave note; that said machine was not made in a workmanlike manner, and the sickle clogged in grass and grain.

Fourth plea, of partial failure of consideration; otherwise in substance same as above.

First replication, denying indorsement after due. Similiter. Second replication, in words following: "And for further replication to the said second, third and fourth pleas, and each of them severally, by leave of the court, plaintiffs say, that the consideration of the note mentioned in plaintiffs' declaration has not failed in manner and form, as in either of said pleas is alleged, and of this they put themselves upon the country."

A demurrer to the second replication was overruled, and plaintiff then excepted, and abided by his demurrer.

Judgment for plaintiffs below, of $175.92.

Motion for new trial overruled.

Assignment of errors, as follows:

1st. Court erred in overruling the motion to continue for want of a copy of the indorsement on the note.

2nd. Court erred in overruling the demurrer to the second replication.

3rd. Court erred in overruling the motion for a new trial. General assignment of errors.

4th.