410

FlllDERAL REPORTER.

ment, although more than seven years have elapsed since its rendition. As to the last point made, that the bonds issued by the town for a portion of the interest upon which this judgment was rendered. were subsequently held to be invalid by the supreme court, it seems to me sufficient to say that the 'questions as to the validity of this indebtedness were all raised in this suit, and this court held that the indebtedness was valid, and rendered judgment against the town. This judgment was never appealed from, and remains unreversed. and no error has been adjudged in reference to this particular case. Decisions of the supreme court in other suits on the same series of bonds or indebtedness do not reverse or affect this judgment. It is true that under the rulings of the supreme court, as to the law under which these bonds were issued, it may be said that this court erred in rendering this judgment, but this judgment was conclusive until reversed for such error by an appellate court. This state of things results from the rule limiting the right of review of cases in this court by the supreme court to judgments where the amount involved exceeds $5,000. This judgment, having been rendered for less than $5,000, has never taken to the supreme court, and therefore remains unreversed. Nor do I think there is any force in the argument made by respondent's counsel that this judgment cannot be enforced by mandamus because the town had no authority to create the debt in question, and therefore has no authority to levy a tax for its payment; because when the judgment was rendered against the town it became a charge against it as completely as if it had been l'endered for a debt which the town had full authority to contract. After a judgment has been rendered by a court of competent jurisdiction, even if the court erred in so rendering it, the judgment is binding upon the town until it is reversed by an appellate court, and the board of town authorities have no discretion, but must audit it as a town charge. Town of Lyons v. Cooledge, 89 Ill. 529. The only place where the question of the validity of these interest . warrants could be raised was in the suit wherein this judgment was rendered, and on that question the town has had its day in court, and the question was adjudged against them. It can be said that a town has no right to commit a tort against an individual, but if a tort is committed, and a judgment recovered for damages by reason of such tort, the town is bound to pay the judgment; aJ;ld so in regard to any judgment which is rendered. The moment a judgment is pronounced. that moment it becomes the duty of the town to pay it, and of the town officers to see that it is paid by taking steps for the levying and collecting of a sufficient tax; and town officers cannot, after judgment, be heard to question the validity of the indebtedness for which the judgment was rendered. The demurrer to the answer is sustained, and a'writ of peremptory mandamus awarded. .

BENNJIl'r.t'

(I· ·'GILLAN.

411

BENNETT

and others v.

MOGILLAN.'

(Oircuit OOUrt. No

n. Illinois.

July 26,1886.)

PAYMENT-APPROPRIATION OF PAYMENTS-SALE.

A counter-claim of purchaser against seller, of which the time of payment is not expressly fixed by the contract of sale, should be deducted from an earlier, rather than a later, cash payment to be made by the purchaser. This is so, although the purchaser had the option to make such earlier payment in cash, or in land at a fixed valuation, and the subsequent payment was to be in cash or negotiable notes.

At Law. McCoy, Pope McCoy, Mr. Johnson, and Mr. Peake, for plaintiff. House ct Fry and Mr. Kline, for defendants.
BLODGETT, J. Thi£ is a suit to recover a balance claimed by plaintiffs to be due them from defendant upon &he sale of a cattle ranoh, with the outfit, fixtures, and oattle pertaining thereto, in the Indian Territory. This case was tried by the court without a jury, and depends mainly upon the legal construotion to be given to the contract, rather than on any disputed faots. The material faots, as they appear in the proof, are that, on or about the sixteenth of April, 1885, the plaintiffs entered into a oontract with the defendant, whereby they agreed to sell to the defendant, for the sum of $400,000, their ranch, cattle, horses, wagons, mules, hogs, and ranoh outfit, located in the Indian Territory, at or near the junotion of the Arkansas and Cimaron rivers, more particularly described as follows:

head of cattle, to be oounted, and averaging in age and sex about as follows: 3,000 head of three, four, and five year old steers; 3,000 head of two-year olds, mixed; 5,000 head one-year old. mixed; 1,500 head of cows and bulls,-calves born in 1885 not to be counted; 125 head of horses; and all the mules, wagons, harness, hogs, and ranch outfit, located on the said ranch, and used in connection therewith; and :&:1 their right, title, and interest in and to a certain lease for 128,000 acres of land, known as the' Cherokee Lease,' dated October, 1883, and running five years from the date thereof, at a yearly rental of two and a half cents per acre; also all their rigbt, title, and interest in and to the said lease for 127,265 acres of land known as the ·Pawnee Lease,' dated June 1, 1884, and running five years from date, at an annual rental of three cents per acre; and to deliver possession of all said property to defendant on or the fifteenth day of July,

1885." Should the number of oattle delivered exceed 12,500 bead, the defendant was to pay in oash the sum of $25 per head for such excess; and should the said number fall ahort of 12,500 head, plaintiffs were to oredit defendant on the amonnt to be paid at the rate of $25 pel' head for such defioit. The sum of $400,000 for said ranoh
1 Edited

by Russell H. Curtis, Esq., of the Chicago bar.