| Ill. | Apr 15, 1865
delivered the opinion of the Court:
This was a petition for a mandamus, on the relation of Kill-ham and others, to compel the Commissioners of Highways of the town of Lyons, in the county of Cook, to lay out a certain road in that town.
We shall not go into a very particular examination of the merits of the case, having come to the conclusion that the judgment must be reversed on one ground which is fatal. It is this. The court below rendered a judgment for costs against the Commissioners in their individual capacities, and not, as they should have done, against the town of Lyons. The defendants were acting in a representative character—they representing the town of Lyons, in this matter, having no personal interest whatever in the proceeding. The judgment for costs should have been against the town of Lyons, and the amount would become a town charge. (Scates’ Comp. 335.)
It appears that from the time this road was ordered to be laid out, the parties have been in litigation about it, until the five years within which, by the statute, it should have been opened, have expired. It is now insisted by the appellants, that it is impossible to carry into effect the order of the Supervisors, on account of this efflux of time. On this point we are satisfied, from the analogies of the law, the time consumed in litigation must not be estimated as a part of the five years. Walsh et al. v. Horine, garnishee, decided at November term, 1864, and reported in 36 Ill.
As to the allowance of amendments of the writ of mandamus, that was wholly discretionary with the court. The alternative writ is like a declaration, and is, generally, open to amendment.
The peremptory mandamus is all right if it be possible to locate the road under the order of the Supervisors laying it out. We have been unable to do it, from the calls and distances given in the record.
On the next trial the Circuit Court will call surveyors ánd receive proof on this point of location, and if they are satisfied with the proof that the road can he located as laid out by the Supervisors, they will order accordingly.
For the reason given, that costs have been awarded against appellants as individuals, the judgment is reversed and the cause remanded, with directions as above.
Judgment reversed.