Opinion of the Court.

days' advertisement, or, that the land was not sold until a day or two after the day appointed, will not vitiate the sale.

See, also, Turner v. McCrea, 1 Nott & McCord, 11; Jones v. Fulgham, 2 Murphy, 364.

We have been referred to some cases which hold that a deed of the officer is void because the sale was not made in conformity with the statute.

Curtis v. Swearingen, Breese, 139, and Smith v. Cockrill, 6 Wallace, 756, are in conflict with the view we have taken; but the more recent rulings of this court are in harmony with the rule we have announced; and the statute in force at the time the case in Breese was decided, was wholly different from the present statute.

The facts in the cases of Thornton v. Boyden, 31 Ill. 200, and Botsford v. O'Conner, 57 Ill. 72, did not require the allusion made in them to a sheriff's sale, and we must regard the remark as obiter dictum.

The one was in regard to a trustee's sale, the other an administrator's sale, and it is apparent that the remark relied upon was made merely to illustrate the principle enunciated. The second point can be more briefly disposed of.

It is contended that the defendant in the writ of attachment had only an equitable interest in the land; that the writ could not be levied upon such an interest; and therefore no title passed to the purchaser.

Without reference to the facts-that the defendant in the writ entered his appearance; that a judgment in personam was rendered, and that he had received a patent prior to the rendition of the judgment-we do not think that the certificate of the register of the purchase of the land, evidenced only an equitable interest.

The statute in force at the time declared that the certificate of the register should be deemed evidence of title, and should be sufficient to entitle the purchaser to recovery of the possession of the land, in any action of ejectment or forcible detainer. R. S. 1833, 280.

Opinion of the Court.

When the patent did, in fact, issue, it related back to the inception of the right of the patentee, created by the certificate. Stark v. Storrs, 6 Wallace, 402.

The debtor had a title, upon which he could recover in ejectment; which he could alienate; which could be sold on execution; which he could devise, and which could only be defeated by a bare possibility.

In the chapter entitled "Judgments and Executions," it is enacted, that the lands, tenements and real estate of every person shall be liable to be sold upon execution; and, in section three, it is provided, that the legal holder of any certificate of purchase of lands, from the United States, shall be deemed to be within the true intent and meaning of the chapter. R. S. 1845, 301.

The attachment law itself, in the first section, says that the "lands and tenements" shall be attached. But in giving the form of the writ, the officer is commanded to "attach so much of the estate, real and personal," etc.

In view of the entire legislation in reference to these certificates, we may safely hold, that, if they do not constitute a strictly legal title, they are entirely different from a mere equitable interest in land.

A reasonable construction must be given to these various statutes; and it evidently was the object of the legislature to subject lands, purchased from the United States, and for which a certificate had been issued, to levy by attachment as well as by execution.

In Gray v. McCance, 24 Ill. 344, it is said, that a party, purchasing land of the United States, to which no pre-emption rights attach, acquires in it a vested right; and that the land becomes the property of the purchaser, and may be aliened and disposed of by him.

In Carroll v. Safford, 3 How. U. S. 459, it was held, that, upon payment for the land, and the issue of the certificate, the land was no longer the property of the United States, but of the purchaser; that, though technically the fee might be in

Syllabus.

the United States, the land was real estate in the hands of the purchaser; descended to his heirs, and not to his executors; was subject to tax, "as lands owned by non-residents;" and that the purchaser was protected as fully under the certificate, as under the patent.

If real estate, thus purchased and owned, can be sold "as lands," for taxes, why is it not subject to levy by attachment for debt?

We are of opinion that the levy of the writ of attachment was valid.

There is no necessity to advert to the other questions presented.

The plaintiffs showed paramount title, and are entitled to

recover.

The judgment is reversed, and the cause remanded.

Judgment reversed.

JOHN B. SMITH

V.

THE BOARD OF SUPERVISORS OF PEORIA COUNTY.

1. BOND-its execution-surety. Where a person signed an official bond as a surety, and it was agreed between him and the principal in the bond that it should not be delivered to the obligee until another person, who was named as a surety, should sign the bond, but it was delivered without obtaining his signature: Held, that when the surety thus signed and delivered it to the principal, having intended to execute an operative bond, the obligee has the right to presume, in the absence of notice, that the surety had conferred full general authority to deliver the bond. Such an agent may bind his principal to the extent of his apparent authority.

2. AGENT-of his authority. A special agent's authority is that which is given by the terms of his appointment, or that with which he is apparently clothed by the character in which he is held out to the world, although not strictly within his commission, and whatever is done under an authority thus manifested, is within the authority, and the principal is bound for that reason. He is equally bound by the authority which he

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actually gives, and by that which by his own acts he appears to give. The principal is responsible for the appearance of authority.

3. When one of two innocent persons must suffer by the act of a third person, he who has enabled such person to occasion the loss, must sustain it.

4. NEGLIGENCE. In such a case, it is not negligence in the obligee to fail to go to the surety and make inquiry whether there are any secret agreements between them not complied with. The surety had reposed confidence in his principal, and the obligee was not required to suspect that the principal was acting fraudulently. The surety, in such a case, runs the risk of the fraud of the principal whom he has intrusted with the delivery of the bond. It is his duty, under such circumstances, to see that the authority he has delegated is not abused, and it is not just or reason. able to permit him to take advantage of its abuse.

5. BOND-its execution-notice of escrow. Where such a bond is executed and delivered as an escrow, and the condition is not performed, that fact can be shown in defense, or where it is agreed by the principal and surety that the bond shall not take effect until a particular person also signs as surety, and the obligee has notice of the agreement, the fact that such person did not sign as a surety, may be shown in defense. And it is error for the court to refuse to permit the defendant to make proof of such facts, under the plea of non est factum.

6. SURETY ON TREASURER'S BOND-liability of. Where a county, under legislative authority, levies a tax to build a jail and an alms house, and issues bonds to be sold to raise money for such purpose, and the tax is collected, and the bonds placed in the hands of the treasurer and sold, and the money from both sources comes to the hands of the treasurer, his sureties are liable on their bond for any delinquency in failing to pay out the money according to law. And where county orders, drawing interest, are issued and placed in the hands of the county treasurer, to be sold, and the proceeds applied in redeeming other county orders, and they are sold by the treasurer, the money has been legally raised, and is in his hands as treasurer, and his sureties are liable for its misapplication.

7. SURETY-on official bond-increased liability. Where, after a county treasurer has been elected and given bond, the county authorities, under laws existing at the time, and a special act of the general assembly subsequently passed, authorizing the levy of a tax and the erection of an alms house, proceeded to levy the tax and to construct such a building, such action did not impose such additional liability as would release the sureties on the treasurer's bond. They will be presumed to have become sureties, knowing that such acts could and might be done during the official term of the treasurer. Such sureties are liable for the faithful performance of all duties of such an officer, whether imposed by laws enacted previous or

Syllabus. Opinion of the Court.

subsequent to the execution of the bond, only so that it comes within the scope of his official duty.

8. PAROL EVIDENCE-settlements-balances and general results. In such an action, where books and papers given in evidence are voluminous, it is not error to permit a witness, who has made computations therefrom, to testify to balances and the results of such computations, and to settlements made by the treasurer and the board of supervisors, but it is error to permit him to testify to a report of the finance committee made in the absence of the treasurer, and in which he had not participated, and to which he had not assented.

APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

Mr. JULIUS S. STARR and Mr. S. D. PUTERBAUGH, for the appellants.

Mr. H. GROVE, and Messrs. JOHNSON & HOPKINS, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of debt, brought by the board of supervisors of Peoria county, against John B. Smith as one of the sureties on the official bond of Thomas A. Shaver, late county treasurer of Peoria county, to recover for an alleged defalcation of said treasurer.

The bond bears date December 18, 1867, and is joint and several; the name of Richard S. Cox is inserted in the body of it, as one of the sureties, but it is not executed by him. Shaver continued in office, exercising its duties, until November, 1869. The non-execution of the bond by Cox, is made the first ground of defense.

The 15th, 25th, 26th, and 27th pleas, set up that the bond was signed by the defendant, on condition that it should also be executed by Cox as a co-surety, before the same should be delivered; that Cox failed to execute the bond; that in violation of said condition, the bond was delivered to the plaintiff without the knowledge or consent of the defendant.