Dequindre and Others v. Williams. personal estate of wards, as was required in cases of administration, and gave the guardian power to sell such property. Then section thirty-four reads, "The circuit court, upon the application of any guardian, who may be appointed under the provisions of this act, praying for the sale of any real estate of his ward, ** shall decree the sale of such real estate, and after the confirmation of any sale by the court, as in case of sales made by executors or administrators, the conveyance shall be made.” Executors and administrators, upon discovering the insufficiency of the personal estate to pay the debts of the deceased, were required to make an inventory of the real estate and have it appraised, and file the inventory in the circuit court (meaning, certainly, the court which appointed the executor or administrator), and then, upon suggestion, and summoning the heirs, the court (the same court, surely) would decree the sale of the whole, or so much as might be necessary; but the court was to approve the sale before a conveyance should be made (sec. 10). The thirty-fifth section required an inventory and appraisement of the ward's real estate to be filed before a sale thereof should be decreed, and a bond with sureties conditioned that the guardian should faithfully apply the proceeds of sale under the direction of the court. The thirty-eighth section required executors, administrators, and guardians to deposit, from time to time, in the court from which their authority was derived, "all inventories, with the valuations, memoranda of sales, and other papers containing important transactions in the management of their trusts." This evidently referred to inventories and sales of real estate, as well as of personal property. It seems, in view of all these provisions taken together, that the circuit court which appointed the executor, administrator, or guardian, was the one to which application must be made for the sale of the real estate. Otherwise, these various requirements could not be performed. Now, the Dequindre and Others v. Williams. jurisdiction over sales of real estate by guardians, which the Court of Probate, created the next year, undertook to exercise, was the precise jurisdiction which before, by the act of 1824, belonged to the circuit court. And this was the jurisdiction which the legislature, as has been shown, afterwards recognized as lawful and proper, and, by the act of 1829, authorized to be continued over "probate business" until the new Probate Court, then created, should be ready for business; and it was under that authority that the Court of Probate acted in decreeing this sale. By an examination of the session laws of the State prior to 1824, it will be seen that no settled policy had been adopted as to the territorial jurisdiction of courts over such sales, either by administrators or guardians. It is a mere question of policy and convenience, which at that day had not been. very well defined. It is believed that prior to 1824 authority had not been conferred on any court, by statute, to direct the sale of the real estate of wards generally; it was confined to houses and lots in towns and villages; and the court of any county had jurisdiction to direct such sales of lots wherever situated in the State. Acts 1818, p. 148, sec. 34. And yet, by the same act (sec. 24), lands of decedents could only be sold by direction of the court of the county where the land was situated. By the act of 1825 (Acts, p. 56), if letters testamentary or of administration were taken in a county in which were lands of the decedent, the court granting the letters could order the sale of those lands or any other lands of the decedent within the State. By the act of 1827 (Acts 1827 p. 49), the court granting such letters could direct the sale of a land office certificate for lands in any other county; though by the act of 1818 (Acts 1818, p. 144), only the court of the county where the land was situate could do it. By the revised statutes of 1831 and 1838, only the court appointing an executor or administrator could direct the sale; though as to the sales by guardians, the matter was not made definite. But we need not further multiply references to statutes. Dequindre and Others v. Williams. It appears from those already made, that there was no settled policy which might afford aid in construing a statute silent as to the particular county in which the court should take the jurisdiction. It was only at a day comparatively recent that an action denominated, at common law, transitory, could not be brought in any county where the defendant might be found and served with process. Wynn v. Kiser, 7 Blackf. 299. Where jurisdiction to order the sale of lands is given without limit express or implied as to territory, it is difficult to find a satisfactory reason for holding that its exercise shall be confined to lands within the county. Counties are created for the convenience of municipal government, and courts are organized within them that justice may be readily at hand. Where process is required and cannot go to the sheriff of another county, as is sometimes the case, the jurisdiction is limited, in consequence. But here no process was necessary. Upon the whole, the majority of the court (our brother ELLIOTT dissenting upon this point) are of opinion that the court in Knox had jurisdiction to direct the sale of the land in Allen. And we all agree that the doctrine of relation applies-that this treaty operated instantly, in law, as a grant, the subsequent location of the land merely ascertaining the specific thing which was granted. 6. The next question in order is, whether the Probate Court, upon its organization, had authority to take jurisdiction of matters then pending in the Court of Probate, and conduct them to a conclusion. We are of opinion that this question must be answered in the affirmative. There was no express enactment to that effect, but we think that the act of 1829 and the act of 1830, already referred to, imply that such was the legislative intention. 7. Though a bond was required by law to be given before entering the order of sale, yet the failure to require it was not an error rendering the proceeding void. 8. The approval of the President was not necessary to the validity of the guardian's deed of conveyance. The The Board of Commissioners of Morgan County v. Johnson. treaty did not require it in such a case. That clause was intended as a protection against imposition practiced upon the grantee and his heirs. It is commonly found in Indian treaties of that day, but has never been held applicable to conveyances made under the direction of courts. Judgment affirmed, with costs. L. M. Ninde, R. S. Taylor, W. H. Coombs, and W. H. H. Miller, for appellants. J. L. Worden, J. Morris, W. H. Withers, D. D. Pratt, and R. Brackenridge, for appellee. THE BOARD OF COMMISSIONERS OF MORGAN COUNTY v. JOHNSON. COUNTY CLERK.-Fecs where Nolle Prosequi is Entered.-A county is not liable to its clerk for fees taxed by him for services rendered in a criminal prosecution disposed of by a nolle prosequi being entered. APPEAL from the Morgan Circuit Court. The facts of the case, so far as it is necessary to state them to a proper understanding of the questions involved, are these:— Johnson filed an itemized claim against Morgan county, before the board of county commissioners, amounting to $936.92, for fees claimed to be due to him as clerk of the Morgan circuit court, in criminal prosecutions in which the defendants were acquitted on trial, or the indictments and informations were disposed of by nolle prosequi. The commissioners refused to allow the claim, or any part of it, and Johnson appealed to the circuit court. In the latter court a motion to dismiss for want of jurisdiction was overruled. A demurrer to the claim was then filed, which was also overruled. A general denial was filed, and the cause was submitted 31 463 160 632 The Board of Commissioners of Morgan County v. Johnson. to the court for trial. The court found as follows: "That there is due the plaintiff from the defendant for fees and services rendered by the plaintiff since the first of April, 1865, in State cases in which there was an acquittal, the sum of three hundred and forty dollars; for fees and servi ces rendered by the plaintiff since the first of April 1865, in State cases which were disposed of by nolle prosequi, the sum of $718.75; and from these facts the court finds for the plaintiff and assesses his damages at the sum of one thousand and fifty-eight dollars and seventy-five cents.” A motion for judgment in favor of the appellant on the finding of the court was overruled. A motion for a new trial was interposed by the appellant, and overruled, and judg ment was rendered on the finding. To all of which rulings proper exceptions were taken by the appellant. ELLIOTT, J.—The appellee having entered a remittitur for three hundred and forty dollars, the amount found for costs in cases of acquittal, since the case was appealed to this court, the only question for our consideration is, is the county liable to the clerk for fees taxed by him for services rendered in a criminal prosecution in which a nolle prosequi is entered and the case thereby disposed of? As there seems to be some confusion in some of the previous adjudications on this subject, a review of the legisla tive enactments may serve to present the question in a proper light. Reference is made in argument to the twenty-fifth section of the act of 1852, providing for the organization of county boards, &c., (1 Rev. Stat. 229) authorizing the board of commissioners to allow the clerk a compensation for extra services; but as it has been held, and we think correctly, that that section was repealed by the act of 1855, "regulating the fees of officers and repealing former acts in relation thereto" (1 G. & H. 328), we need not discuss its provisions. The Board of Com'rs of Vermillion Co. v. Potts, 10 Ind. 286; Fifield v. The Board of Com'rs of Porter Co., 29 Ind. 593. |