Reddick et al. v. President, etc., State Bank of Illinois. adjudged by the court, that the complainants' said bill of complaint be taken pro confesso against said defendants. And thereupon this cause coming on to be heard, on bill and exhibits, and it appearing to the satisfaction of the court that default has been made in the payment of the sum of money secured by the indenture of mortgage and promissory note, in said bill of complaint mentioned, and that, in fact, the sum of two hundred dollars, the principal debt in said indenture of mortgage and promissory note mentioned, and the further sum of thirty-eight and fifty one-hundredths dollars, interest thereon, amounting in all to the sum of two hundred and thirtyeight and fifty one-hundredths dollars, remain due and unpaid on the said indenture of mortgage and promissory note, to the said complainants; it is therefore considered, adjudged and decreed, that the said complainants recover of the said defendants the sum last aforesaid, together with their costs, etc. Time, until the first day of December ensuing, is given, within which to pay the money, "and in default thereof, the right and equity of redemption of the defendants in the land in the indenture of mortgage mentioned and described, is forever barred and foreclosed, and a sale ordered, by a commissioner appointed for that purpose." At the May term, 1842, the commissioner made his report of sale, which was approved. The complainants were the purchasers. This is the substance of the record, on which the heirs of Reddick assign these errors: 1. That there was no summons against the defendants, and the record does not show how they were served, and the summons ought to be a part of the record. 2. There was no mortgage or note, or other evidence, to show the liability of the defendants to complainants, and no evidence thereof appears of record. 3. The records do not show any facts to justify the court in entering a decree against the defendants. 4. That the defendants were infants, and no confession or answer of guardian ad litem could bind them, but strict proof of every fact alleged against them should have been made. The record is very barren, and we must take it as it appears. Upon the first error assigned, this court has decided that a complainant is not entitled to a decree pro confesso, until the defendant has been served with process, or has been regularly notified of the pendency of the suit, and that it is not enough for a decree to recite that the defendant has been duly served with process, or that he has been regularly notified of the pen Reddick et al. v. President, etc., State Bank of Illinois. dency of the suit, but the summons or advertisement should appear in the record, so that this court may determine whether the statute has been complied with. This is the ruling in the case of Randall v. Songer, 16 Ill. 27, and in the previous case of Vairin v. Edmonson, 5 Gilm. 272, and which we think, on mature consideration, requires some modification, in view of the vast interests to be affected by it. It does not seem reasonable to require a party who has purchased land under the judgment of a court of competent jurisdiction, bona fide, and with no notice of any such defects as the absence of a summons or notice, to be put in jeopardy of his title, or be required to take the risk of the loss or abstraction of a loose paper from the files, when the decree, or judgment of the court recites the fact, that process was duly served, or the required notice duly given. These are facts lying at the very threshold of the case, and on which the court is required to be informed and to pronounce, just as much as upon any other facts which may be developed, and no reason can be perceived why the rights of parties, depending upon those facts, should not be as secure, as upon any other adjudicated facts in the cause, especially after the lapse of many years. It is to be presumed no court would state of record, the existence of facts which had no existence, or pass a decree, or render a judgment, unless proof of service or notice was actually produced. The record therefore, stating such facts, and nothing to the contrary appearing, it should be received as evidence of their existence. We think the rule which has obtained, should be thus modified, and this disposes of the first error assigned. As to the second error assigned, this court has repeatedly decided, that in chancery causes, we are not allowed to presume that any evidence was given in the cause in the court below except what appears in the record. White v. Morrison, 11 Ill. 361; Ward v. Owens et al., 12 Ill. 283; Osborne et al. v. Horine, 17 Ill. 92; Cost v. Rose, id. 276. And so far as infants are defendants, it has been settled by the court that strict proof is required, and the record must furnish evidence to sustain a decree against them, whether the guardian answers or not. Masterson et al. v. Wiswould and Wife, 18 Ill. 48; Reavis and Reavis, Minors, v. Fielden, id. 77. The remaining errors assigned, are disposed of by the decision upon the first two. No facts are shown to justify a decree against these plaintiffs, and no confession by their legal guardian could bind them, and strict proof of all facts necessary to make them liable, should have been made. Cochran v. McDowell, 15 Ill. 10; Hitt v. Ormsbee, 12 Ill. 169; Hamilton v. Trumbull v. Nicholson. Gilman, id. 260; Tuttle v. Garrett, 16 Ill. 354; Greenough v. Taylor, 17 Ill. 602. The record does not show the whole case upon which the court below decided. Taking it as it is, on its face, there is not sufficient to sustain the decree, on the principles established by the cases cited. The decree must be reversed, and the cause remanded. Judgment reversed. BENJAMIN M. TRUMBULL, Plaintiff in Error, v. Aaron ERROR TO SANGAMON. An attorney has no power to receive depreciated money, in satisfaction of a judgment. If an attorney should accept from the sheriff depreciated money, in satisfaction of an execution, the owner of the judgment is not bound by such acceptance; and may compel the sheriff to return the amount in legal currency. If the sheriff has been injured by the conduct of the attorney, he must look to him for redress. An assignment of a judgment, is a revocation of the authority of the plaintiff's attorney to receive the money on the execution, or to control the judgment. THE plaintiff in error moved the Sangamon Circuit Court for a rule upon the defendant in error, who was the sheriff of Logan county, to return an execution in his hands, in favor of the plaintiff in error and against one Thomas G. Taylorwhich rule being granted, and the execution returned, indorsed, "satisfied in full," a motion was entered at the same term, for a rule upon the sheriff to bring into court the money made on the execution. The facts upon which this motion was based, are fully stated in the opinion of the Court. The court ordered the sheriff to bring or return into court the money collected on the execution, or pay it to the plaintiff, except the amount of the two checks (which was $231) sent by the sheriff to Zane. To which decision the plaintiff in error excepted, and brings the case to this court. W. H. HERNDON, for Plaintiff in Error. J. C. CONKLING, for Defendant in Error. CATON, C. J. Even if we should come to the conclusion, that the attorney was authorized to receive depreciated bank 27 149 168 391 Trumbull v. Nicholson. bills, in satisfaction of the judgment, without special authority so to do from his client or the owner of the judgment, and that what he did was an acceptance of the currency and check in satisfaction, still the court should have ordered the sheriff to bring the whole into court, for it was at the bank, under his control, and only through him could the judgment debtor touch it. This was so, as much in regard to the proceeds of the check as in regard to the currency, which the court did order him to bring in, so that the order should have covered the whole or nothing. But we do not think the attorney was authorized to receive the funds, sent by the sheriff, in satisfaction of the execution. The facts are these: Zane, an attorney at law at the city of Springfield, obtained a judgment in the Sangamon Circuit Court, at the October term, 1860, for Benjamin M. Trumbull, against Thomas G. Taylor, upon which an execution issued, which was received by the sheriff by mail from Zane, in December of the same year. Zane states, in his affidavit, that about the first day of April, 1861, Benjamin M. Trumbull, the plaintiff in the judgment against Taylor, informed him that he had sold the judg ment to his brother, Lyman Trumbull, and that the same, with the execution, would from that time be subject to Lyman's control, and that Lyman would receive the money on the same. Lyman also informed him the judgment was his. Zane also states, in his affidavit, that on the sixteenth day of May, 1861, about five months after the execution had been placed in the sheriff's hands, and about a month and a half after he was informed the plaintiff had sold the execution to his brother, a package was delivered to him, by the United States Express agent, at Springfield, Illinois, which he found to contain said execution, one hundred and twenty-five dollars, in bank notes, and two checks for current bank notes on the Springfield Marine and Fire Insurance Bank, amounting to $231, making in all the sum of $356, being the amount of the judgment and costs; and being unable to find Trumbull, he took the package to the bank, on which the checks were drawn, and the cashier counted out the bánk notes on the checks. Upon further inquiry for Trumbull, he was informed that he was absent from the city, and would return on the night train, but that he deposited at Bunn's bank. Zane then went to the bank, and was there informed that he did not deposit there, and that bank notes would not be taken on general deposit, except from a regular depositor. Banking hours being about to close, he left the package containing the execution and bank notes, for safe keeping until morning, at the bank. Before banking hours, on the next morning, he saw Trumbull v. Nicholson. Trumbull, who demanded the specie in satisfaction of the execution, and refused to receive bank notes. He then went to Bunn's bank, and as soon as it was open, got the package containing the execution and notes and took it to the Springfield Marine and Fire Insurance Bank, and proposed to return the currency he had received on the checks the preceding evening; which the cashier refused to do, and said it was the only currency the bank would pay out on them; and that the bills were current, and that he could not return the check. Zane then put the execution and the bank notes in an envelope (both those he had received from the sheriff, as well as those paid on the checks) and sent the package to said sheriff by the first express returning to Logan county after he had received it, being on the first morning subsequent to the evening he had received it; and on the next returning express it was returned by the sheriff to him. He then took the package containing said execution and bank notes from the express agent, and deposited it in the Springfield Marine and Fire Insurance Bank, subject to the order of the sheriff of Logan county, and immediately wrote to the sheriff, informing him that he had deposited the package sent him by the sheriff in said bank, subject to his order, and that the said sheriff could get the same whenever he desired, and that he (Zane) would have nothing further to do with it. To which letter he received an answer from the sheriff, duly acknowledging the receipt of the letter; since which time he has seen nothing of the package. The assignment of the judgment, notice of which was given to the attorney, was undoubtedly a revocation of his authority to receive the proceeds of the execution. If his principal had parted with the right to control the judgment, it can hardly be questioned that the power of the attorney closed with it. And he seems to have received no new power or employment from the assignee of the judgment. But admitting that he retained all his original powers, yet he was not authorized to receive anything but money, or at least that which was equivalent, and actually treated as coin, in satisfaction of the judgment. This principle has been recognized by this court, in the case of Nolen v. Jackson, 16 Ill. 272, and it is a principle indispensably necessary to the protection of parties against the imprudence or the misconduct of the attorney. The attorney might as well take cattle or corn, as anything but money, or he might take less than the amount of the judgment, in full satisfaction, as to take depreciated currency. If the sheriff had been injured by what the attor |