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Jackson o. Haskell.

John Jackson, plaintiff in error, v. WILLIAM H.

HASKELL, defendant in error.

Error to Peoria.

A blank endorsement upon a promissory note is under the control of the assignee,

and may be filled up with his name, before or at the trial of a suit upon the note. In an action of debt, by petition and summons, it is error to render verdict and judgment for damages.

S. T. Logan, for the plaintiff in error.
O. Peters and Jacob Gale, for the defendant in error.
Breese, Justice, delivered the opinion of the Court :

This is an action commenced by petition and summons, by Haskell against Jackson. The petition describes a note executed by Jackson to one Z. Philips, and alleges, “on which note are the following assignments,” to wit : “ Zachariah Philips,” “Onslow Peters,” and concludes with a prayer of judgment for bis debt and damages, &c.

The summons is in debt, and an issue was made up on the plea of nil debet, which, by consent, was tried by the Court without a jury. The Court“ find the issue for the plaintiff, and assess the damages by reason of the premises, to two hundred and fifty dollars,” and judgment accordingly, for the damages so assessed.

The assignment of errors questions first, the correctness of the judgment, it being in damages, when it should have been in debt, and secondly, the right of the plaintiff below to recover, the note being endorsed in blank only.

The second error assigned has been repeatedly held to be none.

The note is in the power of the assignee, and under his control, and before or upon trial, the blank can be filled up with his (1.)

The first error is well assigned. The proceedings are in debt, and consequently a verdict and judgment in damages, as in this case, is erroneous. (2.)

This error, although manifestly the result of inadvertence, is sufficient to reverse the judgment, which is done accordingly, with costs, and the cause remanded, with instructions to set aside the judgment, and award a venire de novo.

Judgment reversed.

(1) Bayley on Bills 104; Gillham o. State Bank of Illinois, Ante 245. (2) Jones o. Lloyd et al., Breese 174.

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THE PEOPLE OF THE STATE OF ILLINOIS, ex relatione

James M. DUNCAN, Clerk of the Supreme Court, v. John G. McHATTON, Sheriff of Schuyler County.

Motion for Attachment.

An order or rule upon an officer to return process should be served by copy.

In this case the relator produced the order of the Court requiring the defendant to return certain fee bills and executions for costs, which, it appeared by affidavit, had been committed to him for collection, and which he had failed to return. The return to the copy of the rule, was as follows:

“ Served this rule, by reading, on John G. McHatton, the 230 day of January, 1841.

" SAMUEL Mason, Coroner of Schuyler County.J. Y. SCAMMON, for the relator, moved that an attachment issue against the defendant.

M. McConnel objected.
Per curiam :

The rule should have been served by copy. The return is insufficient. The motion must be denied.

Motion denied.

THE PEOPLE OF THE STATE OF ILLINOIS, ex relatione

James M. Duncan, Clerk of the Supreme Court, v. Moses HALLETT, late Sheriff of Jo Daviess County.

Motion for Attachment.

Where a rule to show cause why an attachment should not issue against an offi

cer, for neglecting to return process, was served twenty days before the return day, by leaving a copy of the rule with the officer, and he acknowledged the service, and no cause was shown, an attachment was awarded against him.

March 1, 1841. On this day, the relator produced the order of this Court, requiring the defendant to show cause why an attachment should not issue against him, for neglecting to return certain fee bills and executions for costs, heretofore committed to him for collection ; and a copy of the order with the following return endorsed thereon :

The People o. The Auditor.

“ Served the within upon Mo ses Hallett, this 5th day of February, 1841, by his acknowledging service, and leaving him a copy of the within.

“ ALEXANDER Young, Sherif Jo Daviess County.
J. YOUNG SCAMMON, for the relator.
Per curiam :
The proceedings seem to be regular. Let the attachment issue.
Attachment awarded.

Note. See The People o. Needles, Ante 361.

3 567 156 545

28 567 THE PEOPLE OF THE STATE OF Illinois, ex relatione 102a +371

John DAVLIN, v. THE AUDITOR OF PUBLIC AC-
COUNTS.

Motion for Mandamus.

Under the statutes in relation to the sale of school lands, the school commissioner

may be considered the legally constituted agent, both for the State and the purchaser, to receive the patents, and when they are delivered to him, in compliance with the statute, the title is divested out of the State, and becomes vested

in the purchaser. Where lands were sold by a school commissioner, one fourth of the purchase

money being paid in hand, and a credit of one, two, and three years given on the balance, and certificates delivered to the purchasers, containing a stipulation, that, upon the payment of the remainder of the purchase money, patents should be issued to the purchasers : Held, that the certificates could not be understood, as in any manner affecting the provisions of the act of 1829, requiring the Auditor to forward the patents when he received the returns of the school commissioner, or as restraining him from issuing them, before the expiration of the

term of credit. Where the law authorizing the sale of school lands, on credit, required the com

missioners to take a mortgage upon the land sold, and also personal security for the payment of the purchase money, the Court will presume that they were

taken. The presumption is that a public officer discharges his duty, until the contrary is

shown. An assignee of a certificate of the purchase of a portion of school land, assigned

subsequently to the issuing of the patent to the original purchaser, and its de-
livery to the school commissioner, is not entitled to receive the patent in his
own name, under the act of 1837. That act permits a palent to be issued to the

Jast assignee, only when a patent has not issued to the first purchaser.
Semble, tha where a patent has been improperly issued by the Auditor, to a person

not entitled to receive the same, the Supreme Court will not compel the Audi.

tor, by mandamus, to issue another. A patent cannot be set aside or vacated, upon a motion for mandamus against the

Auditor, requiring him to issue another patent for the same land.

J. YOUNG SCAMMON, for the relator.
J. LAMBORN, Attorney General, for the respondent.

The People o. The Auditor.

BREESE, Justice, delivered the opinion of the Court:

On the 22d day of February, a motion was submitted by J. Y. Scammon, on behalf of John Davlin, the relator, for a rule upon the Auditor of Public Accounts, to show cause why he should not issue a patent to the relator, for certain lots of school land sold by the school commissioner of Cook county. Notice having been given to the Auditor, of this motion, the attorney, in support of it, presents the certificate of the school commissioner of Cook county, to the Auditor, showing that John B. Beaubien bought the lands in question, on the 23d day of October, 1834, at the sale of the school lands at Chicago; that since the sale, Beaubien has sold, assigned, and transferred all his right, title, and interest to the relator, by assignment on the back of the certificate of purchase granted to him ; that the relator has paid up the full amount of the purchase money due for the lots, and is entitled to receive a patent for the same from the Governor of the State, under the act of the 16th of January, 1837. (1) He also exhibits a paper purporting to be the original certificate of purchase to Beaubien, showing the purchase by him, on the 23d of October, 1834, and that one fourth of the purchase money was paid at the time of the sale, and the residue of the payments to be completed in one, two, and three years, after which he should be entitled to a patent. This certificate purports to have been assigned to the relator, by Beaubien, on the firsi day of March, 1839. He also exhibits the certificate of the attorney of the school fund, &c., dated Feb. 1, 1841, showing that the amounts due on the original purchase have been paid in full, but by whom is not stated.

He further exhibits his own affidavit, made at the time of submitting the motion, setting forth, that he, as the attorney of the relator, presented the original certificate of purchase and assignment to the relator, to the Auditor of Public Accounts, and requested him to issue a patent to the relator for the lots of land mentioned therein, which the Auditor refused to do, on the ground that the patent was issued in 1836, to Beaubien, the original purchaser, and forwarded to the school commissioner of Cook county. The affidavit further states that the patents were issued without any request from the school commissioner, and that Beaubien was not entitled to the same, nor did he claim any title to them; that he had not paid for the lots, and that the patents have never been delivered to him, but remain in the office of the school commissioner, and concludes by stating, that at the time of the purchase of the lot of land, it was not the practice to issue patents until the lots were paid for.

In answer to the rule, the Auditor returns, that his refusal to issue the patent to the relator, is caused by the fact that the patent was issued to the original purchaser before the assignment to him, and

(1) Acts of 1837, 153, 154 ; Gale's Stat. 156.

The People o. The Auditor.

before the passage of the act of the legislature, authorizing patents to issue to the assignee of such certificates; and that it has been forwarded to the school commissioner of Cook county, for the original purchaser.

Upon this return, the relator moves for a peremptory mandamus to compel the Auditor to issue the patent to him.

The determination of this motion renders necessary an examination into the legislation of the State, on the subject of the school lands.

The first act applicable to this case, is that of the 22d of January 1829. (1)

The sixth section of which provides, that the lands shall be sold under the direction of the school commissioner, at public auction; the seventh that payment shall be made in cash, and that the commissioner shall give a certificate thereof to the purchaser, or a receipt, particularly describing the land by its subdivisions, the price it sold for, and the purchaser's name and place of residence. The eighth section provides that the commissioner shall make, to every regular term of the County Commissioners' Court of his county, a return, in writing, of all the lands sold, the price, quantity, &c., and the name and residence of the purchaser, which he shall record in a book; and the County Commissioners are required to make out and forward, every three months, to the Auditor, a similar statement and return, which shall be recorded by the Auditor, in like manner; and it is made the duty of the Auditor to make out, in the name of the Governor, patents for the lands sold, which shall vest in the purchaser the fee simple; and the Auditor is required, after having made an entry of their date, to forward them to the proper school commissioner, to be by bim delivered to the persons entitled to them, on presentation and surrender of the original certificates.

On the 12th of January, 1833, an act was passed, (2) authorizing sales of school lands on a credit of one, two, and three years, the purchaser giving a mortgage on the land, and good personal security for the payment of the purchase money, to be approved by the County Commissioners' Court.

It will be observed, that this law makes no other change in the mode of disposing of the lands, and none in the acts to be performed by the school commissioner, County Commissioners, and Auditor, so far as vesting the title in the purchaser is concerned.

The former act, in these particulars, is unchanged, and the duty of the Auditor, to send the patents to the school commissioner, for delivery to the purchasers, on the receipt of the return from the County Commissioners, remaining the same.

By the act of 1833, a mortgage on the land sold, and personal security, were substituted for cash; and it might be good policy

(2) Ibid. 19.

(1) Dig. School Laws 9, 10. VOL. II.

72

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