51 Wis. 115 | Wis. | 1881
The real question in this case is, whether the county board had any authority to accept the note and mortgage in satisfaction of, or as security for the payment of, the judgment rendered against Sullivan in the criminal prosecution, and thereupon discharge him from imprisonment. If they had no such power, then the whole transaction was void, and the note and mortgage cannot be enforced against either said Sullivan or the other appellants, who claim the mortgaged premises under him.
An examination of the statutes regulating criminal actions of this kind clearly shows that the county board has no control of any kind over actions of this kind, or over the judgments rendered in such actions. Section 2, ch. 183, R. S. 1858, provided as follows: “Any person convicted of an assault and battery, in a justice’s court, shall be punished by imprisonment in the county jail for a term not exceeding three months nor less than twenty days, or by a fine not exceeding fifty dollars nor less than one dollar, together with the costs of prosecution, at the discretion of the justice; and in all cases where judgment for fine and costs of prosecution is rendered, the defendant shall be committed until the judgment is satisfied.” Section 35, ch. 121, R. S. 1858 (Tay. Stats., 1413), provides
If section 30, ch. 120, R. S. 1858, applied to a case of conviction for an assault and battery, which is at least doubtful, still the case would not be altered as to the power of the supervisors to interfere with the judgment or imprisonment of a person convicted of such offense. The provision of that section would only lessen the term of imprisonment, and would not confer any power of interference on the part of the board of supervisors. The act of the board of supervisors was simply an unauthorized and unlawful interference with the proceedings and imprisonment of the appellant Sullivan. There was
It was said by this court in the case of Montgomery v. Supervisors, 22 Wis., 70-72, involving the power of the board to employ assistance for the district attorney at the expense of the county: “It is very clear that the law has not confided the management of criminal cases to the county supervisors.” And it is certainly equally clear that the law has not confided to the board the power to release persons imprisoned upon a criminal commitment, upon taking security that they will at some future day pay the amount of the fine and costs.
The law having provided that' a person imprisoned for the non-payment of a fine may be released from such imprisonment by the payment thereof to the sheriff, or that, if he is unable to pay the same, he may be released as a poor convict, under the provisions of section 20, ch. 190, R. S. 1858, and the constitution having provided that he may be released by the executive pardon, there does not seem to be any good reason for inferring, in the absence of any law tending to give the power, that the several county boards of supervisors may also release from such imprisonment,, upon such terms as they may deem just. Butler v. Milwaukee, 15 Wis., 493.
The mortgage being void in its inception as against the mortgagor, it is void as to his grantees who do not, either expressly or impliedly, take the estate subject to the payment of the same. Newman v. Kershaw, 10 Wis., 334, 345; Weed Sewing Machine Co. v. Emerson, 115 Mass., 554; Maher v. Lanfrom, 86 Ill., 513, 519.
It is objected by the learned counsel for the appellants, that the judgment was irregularly entered, and should be reversed for that reason. The objection is, that the formal judgment
We think the oral testimony of the witness Treat, who was the district attorney at the time the note and mortgage were given, detailing the circumstances and purposes for which they were given, was properly admitted.
The judgment having been regularly entered, there being no error in receiving the evidence objected to, and the mortgage being clearly void, the judgment of the circuit court in favor of the defendants was correct, and must be affirmed.
By the Court.— The judgment of the circuit court is affirmed.