Dart et al. v. Hercules. copartnership was admitted, and its affairs were unsettled. The Circuit Court stated an account between the parties, and rendered a decree for the sum found due. There was no allegation or evidence of any outstanding debts or liabilities of the firm, and no account was required touching them. The court had power to perform the duties ordinarily performed by its master in stating the account between the parties. No injustice was done to either party, as each had the same rights before the court in regard to the production of books, examination upon interrogatories, &c., that they would have had before the master. 29 Ill. 500; Jewett v. Cunard, 3 Wood & Min. 277. We are satisfied that the decree does the plaintiff in error no injustice, and it is affirmed. Decree affirmed. 34 395 30a 55 34 395 152 52 1. GEORGE F. DART and A. J. LOTHERY v. CHRISTOPHER HERCULES. APPEARANCE - cures defective service of process. In ejectment, the filing of the plea of not guilty is a full appearance, and waives the want of an affidavit of service; nor is the appearance withdrawn by withdrawing such a plea with leave of court. After withdrawing the plea, and before another is filed, plaintiff would be entitled to judginent nil dicit. 2. PATENT - Swamp lands. Under the act of congress, entitled "an act to enable the State of Arkansas, and other states. to reclaim swamp lands within their limits," the title to such lands vested as fully in the states as if they had been conveyed by patent. 3. SWAMP LANDS-lists certified by auditor. The act of the general assembly, entitled an "act to dispose of swamp and overflowed lands, and to pay the expenses of selecting and surveying the same," provides that a certified list of such lands, made out by the auditor of public accounts, shall be filed in tho county clerk's office of each county, which shall be of the same force and effect as patents for school lands; and certified copies are made evidence. These certificates are evidence of title in the state and county, without conveyance or patent. 4. CONVEYANCE- County may convey by commissioners. Under the general law a county may convey land by a special commissioner appointed for that purpose. And under an act of the 16th of February, 1857, Livingston county was authorized to appoint a special commissioner to sell and convey its swamp Dart et al. ". Hercules. lands; and having appointed such a commissioner, his deed passed the title of the county to the purchaser. 5. ALLEGATIONS AND PROOFS. Where a declaration in ejectment counts for lands by the numbers of the government surveys, and also as being in the county of the court in which suit is brought, the proof of the land in controversy by the fraction of the section, the township, range and meridian, will be sufficient, unless it appears to be in a different county. APPEAL from the County Court of Livingston county, the Hon. JOHN DUFF, County Judge, presiding. This was an action of ejectment for the recovery of the N. W. N. E. 18, T. 27 N., R. 8 E., 3d principal meridian, commenced by Christopher Hercules against George F. Dart and A. J. Lothery, in the Livingston County Court. Service of the declaration and notice was proved to have been made on defendants on the 21st day of May, 1863. The declaration and notice were filed on the 1st day of June following. Afterwards, in vacation, the defendants pleaded to the action, and at the September term of the court, by leave, withdrew their plea. At the same term a rule was entered requiring defendants to plead in twenty days; and on the 10th day of the following December they filed a plea of not guilty. At the same term defendants moved the court to dismiss the suit for the want of service, which was overruled; but leave was given the plaintiff to file an affidavit of service nunc pro tunc, which he did. Α trial was had at the March term, 1864, of the court; and on impanneling a jury to try the cause, defendants challenged the panel because they were citizens of Livingston county, but the court overruled the objection, and the defendants excepted. On the trial below, plaintiff read, against the objection of defendants, a certified copy of the list of "swamp lands" in Livingston county, made and returned by the State auditor duly certified, from which it appeared that the land in controversy was embraced in and formed a part of the list. Plaintiff then produced the record of the proceedings of the board of supervisors of Livingston county, and read an order of the board therefrom, against the objections of defendants, appointing J. B. Woolverton a commissioner to sell and convey the swamp Dart et al. v. Hercules. lands, also orders from the same record showing his confirmation as a commissioner, his bond and oath as such; all of which were excepted to by defendants. Plaintiff then read a deed executed by the commissioner on behalf of the county, conveying the land in controversy to plaintiff; to the reading of which defendants excepted. The jury returned a verdict of guilty, and also found that plaintiff was the owner of the land in fee. Defendants thereupon entered a motion for a new trial, which was overruled by the court, and defendants excepted. The court rendered a judgment on the verdict, from which defendants appeal to this court. The questions presented for decision are, whether, after pleading to the merits of the action, defendants, by withdrawing their plea, also withdrew their appearance, and whether plaintiff could recover without producing a patent for the land from the United States government; whether the county could convey this land by a special commissioner, and whether proof of the location of the land by the numbers of the section, township and range, without specific proof of the county in which it is situated, proves the venue laid in the declaration. Messrs. CLARK and KELLER, for the appellant. 1. We submit that the court erred in not dismissing the said cause and discharging the rule to plead that was entered at the September term of said court, 1863, for the reason that there was no evidence before the court to authorize the court to act, and therefore the court had no jurisdiction of the defendants. The court is also referred to 1 Purp. Stat. 505, sec. 13 of the Ejectment Act; O'Donnell v. Howes, 27 Ill. 510. 2. We submit that the court erred in granting leave to the plaintiff below to swear to and file his affidavit of service of the declaration and notice after the defendants had moved the court to dismiss the cause, and after the entering of the rule to plead in said cause. 3. We submit to this court that the court below erred in not granting the motion of the defendants to strike the affidavit of plaintiff of service from file, for the reason that the same Dart et al. v. Hercules. was not filed till after the declaration and notice was filed and the rule entered to plead. 4. We submit to the court that the County Court of Livingston county should have overruled the motion of the plaintiff below, in which he asked leave to file the affidavit of service nunc pro tunc, first, for the reason that at the time the declaration and notice was filed, as the record in this cause shows, there was no form of an affidavit attached to the said declaration and notice. And we submit that there was nothing to warrant the said court in acting in the matter. 5. The County Court erred in overruling the objection of the defendants below to the jury, for the reason that they were residents of the county of Livingston. And as the court will see from the record in this cause that it was admitted by the plaintiff that they claimed title through the county, and therefore, we insist, they were not competent and legal jurors in said cause; first, from the fact that there is nothing in the act that created the said court, so far as we have been able to find, that made them competent. And we call the attention of the court to the act, and to the case of John B. F. Russell et al. v. Richard J. Hamilton, 2 Scam. 56, the court uses the following language: "That the court overruled objections to persons sitting on the jury who were inhabitants of township thirty-nine north, range fourteen east." The court erred. We ask the court to examine that case, for we think it was conclusive of the question, and that this cause should be reversed for that reason if for no other. The court is asked to examine, on the same point, The Rock Island and Alton R. R. Co. v. Thomas Lynch, 23 Ill. 645, in which the court uses this sort of language: "A challenge of a juror for such cause cannot be overruled; it must be allowed." Now, we find that in this case there was no power vested in the said court to overrule the said motion. Russell v. Hamilton, 2 Scam. 56; Rock Island R. R. Co. v. Lynch, 23 Ill. 645; 2 Johns. 191. 6. The court will see, by looking into the record, that there is no evidence to show that the government had parted with its Dart et al. . Hercules. title to the land. We suppose that is no pretense, but the general government is the owner of all the titles in Illinois. The plaintiff in this cause claiming title in fee to the land, we must lay the foundation to prove title to this tract by showing a patent from the government to some person through whom he could purchase his title. And the court will see, by examining the evidence, that the plaintiff did not do so, and there is not any proof that the government has at this day parted with her title; and if so, then the plaintiff had no right to recover in this cause a fee simple title, minus a complete and absolute title to the land. The court, on that subject, is referred to 1 Scam. 381; 1 Freeman's Dig. 548; 1 Cruise's Dig., Title, Real Estate, 844; 14 Ill. 309. 7. We submit that the court erred in overruling the objec tion of the defendants to the evidence of the plaintiff in this cause, because it did not tend to prove the issue in this cause, and because the issue was, that the plaintiff was the owner in fee of the said land, and that defendants were not guilty of detaining the same contrary to law. Now, we say that the plaintiff was bound to prove his title as laid in his declaration. Mr. S. L. FLEMING for the appellees: 1. Appellants, by first, second, third and fourth errors. assigned, claim that the court erred in allowing the filing of the affidavit of service of the declaration and notice, nunc pro tunc, at the December term, 1863. And as authority, in addition to the statute, refer to O'Donnell v. Howes, 27 Ill. 510, in which it appears the declaration and notice was served by the sheriff, who made his return in the ordinary form, not making oath to the same; a rule to plead was entered at the March term, 1861, and defendant not appearing, a judgment by default was entered at the ensuing June term. But in this case it appears from the record that defendants had filed their plea prior to the September term, 1863, (the same having been filed in vacation,) and at said September term defendants, by their attorney, John Clark, appeared in the case. The appearance being gene |