■ Application for a Writ of Mandamus.
The Board of Canal Commissioners are liable to pay costs out of the canal fund, in suits commenced by the board, for the benefit of the fund, the same as other litigants.
The relator and I. N. Morris, the President of the Board of Comissioners of the Illinois and Michigan Canal, filed an agreed case in this Court, from which it appeared that the People, by the agent for protecting canal lands, appointed by the canal board, instituted several suits against trespassers upon the canal lands, and the defendants commenced an action upon a note given to said board in settlement for such trespasses. One of the cases was discontinued before trial; in another the defendant was acquitted, and a judgment for costs rendered against the plaintiff; and in the last a judgment was. rendered for the plaintiff for damages and costs. The relator served the summonses and subpoenas in each case, and called upon the canal board for his fees. The questions submitted to the Court, upon this motion, were,
1. “ Whether the relator is entitled to receive fees for his said services ?”
2. “ Whether the Board of Commissioners of the Illinois and Michigan Canal ought to pay said fees f” •
Caton, Justice,
delivered the opinion of the Court:
The only question presented in this case is, whether the Canal Commissioners are liable for costs in suits commenced by them for the benefit of the canal fund. We think they are bound to pay such costs out of the canal fund, the same as other parties. The case of The People v. Rockwell, (1) is precisely analagous and controls this case. An alternative mandamus must go on the case presented in the agreement.
Alternative Mandamus awarded.