text:
    Mary M. D. Cory, Appellant, v. Charles W. Pullen et al., Appellees.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Mortgages, § 269

      —what is power of trustee in trust deed as to release of lien. The trustee in a trust deed given to secure the payment of notes has the power as to third parties to release the lien created by such deed so as to reinvest the title in the grantor, even though he does so without the consent of the holder of the indebtedness which such deed was given to secure and in violation of the obligations of the trust.
    2. Mortgages, § 269*—when trustee in trust deed may release lien created iy deed. The trustee in a. trust deed given to secure the payment of certain notes may release the lien created by such deed even though the indebtedness secured thereby is not due.
    3. Mortgages, § 1*—what is nature of mortgage securing note. A mortgage securing the payment of a note is but an incident to the debt.
    Appeal from, the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by Mary M. D. Cory, complainant, against Charles W. Pullen and others, defendants, to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    William Abbot, for appellant.
    Lane, Dryer & Brown, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the.court.

4. Mortgages, § 163 —what constitutes equitable transfer. Whatever is sufficient to transfer the title to a debt will also transfer in equity a mortgage given to secure the debt, and the mortgagee will hold the title for the assignee of the debt.

5. Mortgages, § 168*—what rights conferred by assignment. The assignment of a mortgage does not convey or transfer the legal ownership, but gives an equitable right only.

6. Mortgages, § 207*—when notice to grantor in trust deed necessary. One purchasing notes and a trust deed securing them must give notice to the grantor if he desires to preserve his rights under the trust deed against payments made to the former holder.

7. Bills and notes, § 237*—necessity of notice of assignment of note. The assignee of a note is negligent in not giving notice of the assignment.

8. Mortgages, § 227*—what is effect of assumption by grantee of mortgage indebtedness. A grantee in a deed assuming therein the payment of a mortgage indebtedness becomes the principal debtor and the prior debtor only a surety.

9. Mortgages, § 239*—what is primary fund for payment of mortgage debt. Property subject to a mortgage indebtedness becomes the primary fund for the payment of the debt.

10. Mortgages, § 163*—when purchaser of note negligent in not taMng and recording assignment of trust deed. Where a party purchased a note secured by a trust deed and the note was duly assigned and the trust deed delivered to him, held that he was negligent in not taking and recording an assignment also of the trust deed.

11. Mortgages, § 245*—when assignee of mortgage protected as to payments made by subsequent purchasers. The rule requiring the assignee of a mortgage securing notes indorsed in blank to give notice, actual or constructive, in order to protect himself against payments by the mortgagor to the mortgagee does not extend to subsequent purchasers of the property who assume and agree to pay the incumbrance, and notwithstanding the assignee has not recorded the assignment or given notice thereof to any one, he is entitled to protection against payments made by the purchasers to the mortgagee in the belief that he still owned the indebtedness.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Broadway Bank of St. Louis, Missouri, Appellant, v. McGee Creek Levee & Drainage District, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Courts, § 92

      —extent of jurisdiction in drainage matters. In drainage matters the County Court is a court of limited jurisdiction.
    Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by Broadway Bank of St. Louis, Missouri, complainant, against the McGee Creek Levee & Drainage District, defendant, to vacate and set aside a certain order of the County Court abating the excess of a certain assessment of benefits for certain construction work of defendant over a certain bond issue based on such assessment, and to declare the original order for the assessment to be in full force, and a certain warrant for $7,000 issued by defendant for money borrowed on account of such work a lien against such assessment. From a decree dismissing the bill for want of equity, complainant appeals.
    George J. Breaker and Anderson & Matthews, for appellant; William M. Fitch, of counsel.
    Williams & Williams, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, eame topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

2. Courts, § 95 —when no presumption as to jurisdiction. There is no presumption in favor of the jurisdiction of the County Court in a statutory proceeding even when the attack on the jurisdiction is collateral.

3. Drainage—what are requisites of petition to vacate order of County Court as to abatement of assessments. In a proceeding in the County Court under the drainage statute, to vacate an order of the County Court abating the excess of an assessment of benefits for construction work over a bond issue based on such assessment, the statute must be literally complied with both as to the subject-matter and the person, and if the petition is not sufficient to confer jurisdiction the appearance and consent of the landowners do not have that effect.

4. Bills and notes, § 102*—what not negotiable paper. A drainage warrant is not negotiable paper.

5. Contracts, § 345*—when assignee of drainage warrant may sue in own name. The assignee of a drainage warrant may maintain suit thereon in his own name subject to the equities between the original parties.

6. Drainage, § 57*—when warrant lien on assessment. Under section 38 of the Levee Act (J. & A. jf 4419), a warrant for borrowed money is a lien on the assessment.

7. Drainage, § 55*—what warrants payable out of. A drainage warrant for borrowed money is only payable out of assessments made when the order authorizing the warrant was issued.

8. Drainage, § 7*—what is nature of district organised under Levee Act. A district organized under the Levee Act is a body politic and corporate, subject to sue and to be sued as any other municipal corporation.

9. Drainage, § 51*—what must be alleged as' to nature of district in suit against it. In suing a district organized under the Levee Act it is not necessary to allege in terms that it is a corporation, but it is sufficient to allege facts which show it to be a corporation.

10. Drainage, § 51*—who not necessary parties in suit against district. A district organized under the Levee Act represents the property owners, and such owners are not necessary parties to a suit in equity against the district.

11. Equity—when party’s contentions ineffective. A party’s contentions in a suit which are inconsistent and evasive are ineffective in equity.


text:
    The People of the State of Illinois, Defendant in Error, v. Chipman Ratcliff, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    Malicious mischief—when evidence sufficient to show lack of malice or interference with school property. In a criminal prosecution for maliciously destroying a well and pump of a schoolhouse, evidence held sufficient to show that the well and pump were not appurtenant to the school site but upon land separated therefrom by a public highway and belonging to an estate of which the defendant was an heir, and that he took possession of the land without malice and without creating any disturbance after reasonable notice to the school directors that a license for the use of the land by the school was revoked.
    Error to the County Court of Adams county; the Hon. Lyman McCabl, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Chipman Ratcliff, defendant, for wilfully, maliciously and without cause destroying and injuring a well and pump appurtenant, to a certain schoolhouse. Prom a judgment finding the defendant guilty and imposing a fine of three dollars, defendant brings error.
    Leroy Adair and William Schlagenhaue, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    City of Sullivan, Appellee, v. J. T. Henry, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Justices of the peace, § 189

      —when appeal bond insufficient. Where an appeal bond on an appeal from a justice of the peace was executed by a defendant in a criminal case and filed with the circuit clerk, and cash to the amount of the bond was deposited with and accepted by the clerk as security on the bond, and the bond was approved, held that such was not a full compliance with the form of the bond as given in the statute relating to appeals from justices of the peace.
    Appeal from the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Prosecution by the City of Sullivan, plaintiff, against J. T. Henry, defendant, for the violation of an ordinance of plaintiff. From a judgment finding the defendant guilty and imposing a fine of sixty-five dollars, defendant appeals. Case consolidated in Appellate Court and heard with two other cases (Gen. Nos. 6651, 6652), in which similar proceedings were had, by agreement of parties.
    Vattse, Hughes & Kiger, for appellant.
    W. R. Huff, C. R. Patterson and E. J. Miller, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

2. Justices oe the peace, § 193*—what is effect of amending defective hond. Even if an appeal bond on appeal from a justice of the peace is defective and has been accepted and approved by the proper officer, the party endeavoring to appeal should not be prejudiced by any informality or deficiency in the bond if he will, when objection is made, remedy the defect.


text:
    In the Matter of the Estate of Jacob Brown, Deceased. Calvin J. Brown and Harvey R. Brown, Appellants. Nannie E. Howe, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Executors and administrators, § 543

      —when order approving report of administrator void as to unsettled matters and discharge of administrator. An order approving the report of an' administrator and declaring the estate settled and the administrator discharged, where the report showed that the major part of the widow’s award and the claims allowed were unpaid and that there was nothing remaining available to pay the balance of such award and claims, held to be effective only to close the account to the time of its approval, and to be void as to unsettled matters and discharge of the administrator.

      Appeal from the Circuit Court of Pulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    In the matter of the estate of Jacob Brown, deceased. From an order appointing an administrator de bonis non, Calvin J. Brown and Harvey R. Brown appeal.
    Harvey H. Atherton, for appellants..
    W. Scott Edwards and Marvin T. Robison, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

2. Homestead, § 76 —what interest conveyed by widow. A conveyance by a widow of land set off to her for her homestead conveys only her interest and not that of heirs or creditors.

3. Executors and administrators—when deed inadmissible on application for appointment of administrator. A deed by a widow of land set off to her for her homestead, held inadmissible in evidence on application for appointment of administrator, as the question of the effect of such deed could not be tried until such appointment.

4. Homestead, § 94*—when may not be sold. When the widow of a decedent is in possession of premises as a homestead which do not exceed in value $1,000, the premises cannot be sold to pay debts until termination of the homestead estate.

5. Executors and administrators—when holder of unsatisfied claim may apply for sale of homestead. The holder of an unsatisfied claim against an estate may wait until the homestead estate, when its value does not exceed $1,000, is extinguished before applying for a sale of the property, even though more than twenty years may have elapsed since the claim was allowed.

6. Executors and administrators, § 25*—what is discretion of court as to appointment of administrator. It is a matter in the discretion of the court making the appointment of an administrator as to which one of the heirs shall be appointed.

7. Executors and administrators, § 616*—when administratrix of estate properly appointed administratrix de bonis non. The administratrix of the estate of a decedent’s widow held not disqualified by reason of such office held by her for appointment as administratrix de bonis non of the decedent’s estate, where there was an unpaid balance of the widow’s award or such administratrix was herself an heir of the decedent.


text:
    Charles B. Graff, Appellee, v. Earl E. Fox et al. Dan Gorman, Appellant.
    1. Chattel mortgages, § 216

      —what are rights of indorsee of note secured by chattel mortgage. Under the statute (J. & A. jf 7602), the indorsee of a note before maturity which states on its face that it is secured by a chattel mortgage takes it subject to all defenses existing between the payee and the payor.
    2. Principal and surety, § 56*—what is effect of judgment against principal and surety. The fact that a judgment is rendered against two makers of a note, one of whom was a surety only for the other, does not change the relationship of the parties to each other.
    3. Bills and notes, § 177*—what are rights of surety against indorsee. A party signing a note as surety for his comaker is entitled to all the rights of a surety against an indorsee having knowledge of such suretyship.
    4. Bills and notes, § 431*—when evidence inadmissible to vary terms of note. Evidence tending to show that at the time a certain note sued on was made there was an agreement between the parties that one maker signing as surety for the other should be released from liability when a certain mortgage should subsequently be made by the principal maker of the note, held inadmissible, as such agreement would be inconsistent with the terms of the note and such evidence is an attempt to vary such terms by a previous or contemporaneous verbal agreement.
    5. Evidence, - § 160*—when evidence of compromise should be excluded. Admissions of a party are never conclusive against him, and when made for the purpose of effecting a compromise of the matter in dispute should be excluded as evidence on the ground of public policy.
    6. Payment, § 14*—what are rights of creditor and debtor as to application of. A debtor may control the application of voluntary payments made by him, and if he does not direct their application the creditor may.
    7. Principal and surety, § 60*—when surety may not direct application of payments by principal. A surety has no right to direct the application of voluntary payments made by his principal to the debt for which such surety is liable.
    8. Chattel mortgages, § 269*—when creditor may apply proceeds of sale to most precarious debt. Where a chattel mortgage does not provide how the proceeds on a sale of the mortgaged property shall be applied, the creditor may apply same to the most precarious debt.
    9. Chattel mortgages, § 269*—application of proceeds of sale. Proceeds of the sale of mortgaged chattels should be applied to the mortgage debt unless a sufficient legal excuse is shown'for their application otherwise.
    Appeal from the Circuit Court of Morgan county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1916.

      Reversed and remanded.
    Opinion filed April 16, 1917.
    W. T. Wilson and John M. Butler, for appellant.
    Worthington, Beeve & Green, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number*

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Charles B. Graff brought this suit in assumpsit against Earl E. Fox, Edith M. Fox and Dan Gorman. The declaration consists of one count on a promissory note executed by the defendants for $1,500, dated at Jacksonville, Illinois, February 10, 1915, payable to the order of H. J. Bodgers one year after date with interest from date at seven per cent, per annum. The note recites that it is secured by a chattel mortgage and was indorsed by the payee to the plaintiff on February 8, 1916. Defendant Gorman filed the general issue and special pleas averring (1) that he was a surety on the note, which was known to the payee when the note was executed, and that when the note was delivered it was agreed that if he would sign the note as surety the payee would take a chattel mortgage on a crop of corn to be planted by the principal debtor and the surety should thereupon be released from all liability and that said mortgage was taken by the payee; (2) that he as surety was discharged by the failure of the mortgagee to apply the proceeds of the mortgaged property to the payment of the mortgage indebtedness; (3) that he was an accommodation maker and it was agreed that he should he released when a mortgage was taken on the principal maker’s corn crop; and (4) a plea of payment. Issues were joined on the pleas. The case was tried before the court without a jury. Judgment was rendered against all the defendants for $1,653.42. The defendant Gorman prosecutes this appeal.

There is no dispute concerning the following facts: On February 6, 1915, the First National Bank of Waverly, Illinois, held a judgment note for $3,000 against E. E. Fox and his wife, Edith M. Fox, and another for $1,500 against the Foxes and Gorman, on which judgments were entered on that day against the makers. Fox is a tenant farmer, who raised grain on shares, his landlord receiving one-half of the grain at the market. Gorman is also a farmer. They both reside between Franklin and Waverly. H. J. Rodgers is vice president of the Ayres National Bank of Waverly. Fox, after the entering of the judgments, went to Rodgers and asked for a loan of $5,500 to pay off the judgments, and offered to give a chattel mortgage on all his personal property. Rodgers declined to loan the money on the security offered, without additional security, and asked Fox if he could not get Gorman to sign a note with him. Fox got in communication over the telephone with Gorman, who lived nineteen miles from Jacksonville, and had him come to Jacksonville. Gorman refused to sign a note with Fox. Rodgers told Gorman that if he signed a note he would not be in any worse position than he was in already. The result was that Rodgers made the loan on a note of. $4,000 executed by Fox and his wife, and the note sued on in this case executed by Fox, his wife and Gorman. The notes bear the same date and became due one year after date. Fox and his wife at that time also executed to Rodgers a chattel mortgage, securing the two notes, on a field of winter wheat and all his personal property except Ms household goods. It was also agreed at that time that Fox should further secure the notes hy a chattel mortgage on the corn he should plant the next season. Rodgers, out of this loan, paid the sheriff $5,029.77 in satisfaction of the judgments, gave Fox a check for $413.13 and the remaining $57 was applied in payment of a small note that Rodgers held against Fox.

On June 2, 1915, Fox executed and delivered to Rodgers another chattel mortgage on 307 acres of corn growing on a farm rented by him described as the Moxon farm, securing the said two notes, and also a note for $1,000 made that day by Fox to Rodgers, due at the same time as the other notes. The $1,000 npte was given for $300 advanced to Fox by Rodgers May 1, 1915, and $700 the day the last note and mortgage were executed. Rodgers made further advances to Fox of $150 on September 21st; $100 on October 23rd; $100 on November 14th; $100 on December 13th, for which notes were taken and on January 29, 1916, he paid a life insurance premium for Fox of $82.20. Rodgers also was rurming a blacksmith shop in which work amounting to $105.43 was done for Fox. It thus appears that Rodgers advanced to Fox, in cash and blaeksmithing, $635.85 in addition to the $1,000 for which the note of June 2nd was given and which was secured by the chattel mortgage on the com.

The half of the winter wheat that belonged to Fox, that was covered by the mortgage dated February 10th, was sold for $949.88, Rodgers received $500 of the proceeds of the wheat and permitted $449.88 to he paid to Fox. The grain merchant, who bought the corn covered by the chattel mortgage of June 2nd, testified that he paid $2,058.99 of the proceeds of the com to Rodgers and $949.88 to Fox, and that Rodgers authorized him to make certain payments from the proceeds of the corn to Fox. The merchant states that he overpaid Fox but the sums paid to Rodgers and Fox are less by a small sum than the amount paid to the landlord. There is also evidence tending to show that Fox received $1,000 from the proceeds of the corn. The grain merchant may have quoted erroneous figures, when he stated the amount Fox received from the corn was identical with the total proceeds of the wheat. Rodgers also received from the foreclosure of the first chattel mortgage, not including the proceeds of the winter wheat, net $2,566.87.

. Rodgers applied the proceeds from the mortgaged com received by him, first to the payment of the notes taken by him for advances to Fox and interest thereon, the blacksmith bill, the insurance premium and the $1,000 note, and the balance $374.17 was credited on the $4,000 note. The moneys received by Rodgers from the sale of the wheat and the foreclosure of the first mortgage were also credited on the $4,000 note, leaving a balance of over $800 on that note and the entire $1,500 note and interest thereon, the note sued on, unpaid.

The note on its face stated that it was secured by a chattel mortgage, and under the statute appellee, as indorsee of the note, took it subject to all defenses existing between the payee and the payor. Jones & Addington Stat. jf 7602.

It is contended on behalf of appellee that Gorman was not a surety on the note as between Fox and appellee. The fact that a judgment had been rendered on the note held by the First National Bank of Waverly did not change the relationship between Fox and Gorman. It was said in Trotter v. Strong, 63 Ill. 272, which was a suit at law, that the judgment merely changed, the form of the obligation. The statements made by Rodgers to Gorman, when he said he would be in no worse position if he signed the note than he was already in, and to Fox, “Would Dan secure your note again?” show that Rodgers knew that appellant was a surety, and, in addition thereto, Fox was the party who applied for the loan and Rodgers gave him a check for $412.13 of the proceeds, and also applied $57 in the payment of a note held by him against Fox. We have no doubt from the evidence that appellant was only a surety for Fox and that Rodgers knew that fact. Appellant is therefore entitled to all the rights of a surety as against Rodgers.

The appellant introduced evidence that tended to prove the pleas, that at the time the note was made there was an agreement that the appellant should be released from liability, when a mortgage should be made by Fox to Rodgers on the corn to be planted by him. This evidence tended to show a verbal agreement only, and it was admitted over the objection of appellee. The verbal agreement attempted t,o be proved was inconsistent with the terms of the note and was improperly admitted for the reason that it was seeking to vary the terms of the note by a previous or contemporaneous verbal agreement. Mager v. Hutchinson, 7 Ill. 266; Harlow v. Boswell, 15 Ill. 56; Murchie v. Peck Bros. & Co., 160 Ill. 175; Schultz v. Meyer, 181 Ill. App. 335. The admission of the erroneous evidence introduced by appellant was harmless error, since the trial court found against him:

Rodgers was also permitted to testify to a conversar tion that was held early in February, 1916, between himself, Gorman and Moxon, in reference to an adjustment and extension of time of payment of the note in suit. The evidence was admitted on the theory that it was an admission of liability on the part of appellant and a contradiction of his claim that he had been released. The conversation was an attempt to settle the controversy between the parties. Admissions of a party are never conclusive against him, and, when made for the purpose of effecting a compromise of the matter in dispute, should be excluded as evidence on. the ground of public policy. Rochafellow v. Newcomb, 57 Ill. 186.

It is also contended by appellant that the entire proceeds of the mortgaged property should be credited ratably on the $4,000 note and the $1,500 note. In case of voluntary payments by a debtor, he may, if he chooses, control the application of the payment, and if he does not direct the application the creditor may exercise that right. “Where a surety is liable for a part only of the entire indebtedness of the principal to the creditor, and the principal makes a payment on account of his indebtedness, he is entitled to designate to which particular part of the indebtedness it shall be applied, regardless of the wishes of the creditor, or of the surety; and, after application has been made to a debt for which the surety was liable, it cannot be changed, ’ ’ and if the debtor omits to designate how he wishes the money applied the creditor may apply it to any part of the indebtedness. The surety has no right to insist upon its application to the debt for which he is liable. 32 Cyc. 170. “A creditor holding collateral securities from the principal to secure several notes is entitled, in the absence of any stipulation or agreement, to apply them or their proceeds, in the event that sufficient is not realized to discharge the whole amount of the indebtedness to such of the .notes as he may select. Nor is it material that some of the notes so secured bear the names of sureties while others do not. The creditor has the election, subject, to agreement, to apply such securities or the proceeds thereof to the payment primarily of such of the notes as do not bear the name of sureties.” Colebrooke on Collateral Securities, sec. 219; Brandt on Suretyship, sec. 442; National Bank v. Bigler, 83 N. Y. 51; Field v. Holland, 6 Cranch (U. S.) 8; Wilcox v. Fairhaven Bank, 7 Allen (Mass.) 270. The payments were not voluntary, they were made from the sale of mortgaged property. The law required that the proceeds he applied to the debt secured thereby. The debtor not having designated in the mortgage how the proceeds of the mortgaged property should be applied, it was the right of the creditor to apply the payment to the most precarious debt. Hansen v. Rounsavell, 74 Ill. 238; Monson v. Meyer, 190 Ill. 105; Monson v. Meyer, 195 Ill. 143; Plain v. Roth, 107 Ill. 588. This contention of appellant cannot be sustained.

It is further contended that the court erred in not crediting on the notes dated February 10, 1915, the sum of $1,635.85, part of the proceeds of the mortgaged corn that was applied by Eodgers to the payment of items claimed to have been advanced by him to Fox to aid in running the farm, and the sum of $449.88 received by Fox from the sale of the wheat and $949.88 received by him from the proceeds of the com. Of the sum of $1,635.85, $1,000 was advanced and secured by the mortgage on the corn. No reason is shown why Eodgers is not entitled to the payment of that note and interest thereon, from the proceeds of the corn, since it was secured by the mortgage. The money paid as premium on a policy of life insurance for Fox, the blacksmith bill and the other advances were not secured by either mortgage. The chattel mortgage executed at the time the note executed by appellant was made covered the winter wheat. It was the duty of Eodgers to see that all the mortgaged property was applied on the notes secured thereby. Appellant is entitled to have the $449.88 received by Fox from his share of the winter wheat applied on the mortgage- debt. The remainder of the $1,635.85, with any interest collected thereon, together with the part of the proceeds of Fox’s share of the com that was paid to Fox by the grain merchant, with the consent of Eodgers, should be credited on the mortgage debt, unless a sufficient legal excuse is shown for the applica7 tion of such proceeds of the corn as they were used. The testimony of Rodgers that he advanced such moneys for expenses is the statement of a conclusion. There is neither any competent evidence in the record tending to show for what the said sums were used nor any evidence tending to show any agreement by Gorman that such advances should be made and paid out of the mortgaged property.

It is also argued that the court erred in its rulings on propositions of law presented by the parties. The questions presented have already been reviewed. For the errors pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    S. O. Smith and T. H. Cherry, Trustees, Appellees, v. H. W. Knemoeller, Sheriff, Appellant.
    (Not to be reported in full.)
    Appeal from the County Court of Macoupin county; the Hon. Andbew J. Duggan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action in replevin by S. 0. Smith and T. H. Cherry, trustees for the People’s Bank of Girard, plaintiffs, against H. W. Knemoeller, sheriff, defendant, to recover certain horses and a heifer levied upon as the property of and taken from the possession of Fred Holtje, under an execution issued upon a judgment against him. From a judgment for plaintiffs, defendant appeals.
    Abstract of the Decision.
    1. Fraudulent conveyances, § 124

      —when retention of possession renders sale invalid. A sale of chattels, where possession remains with the vendor, is fraudulent per se and void as to creditors where the property is of such a nature that possession can be taken from the vendor and removed at the time of the sale.
    2. Fraudulent conveyances, § 3*—what constitutes as to creditors. There is no difference in effect between a sale made with actual intent to defraud creditors and one fraudulent by operation of law.
    3. Fraudulent conveyances, § 3*—when notice of sale not binding on creditors. Notice of a sale made with actual intent to defraud creditors or of one fraudulent by operation of law is only notice of an illegal transaction and not binding upon a creditor.
    Truman A. Snell and Victor Hemphill, for appellant.
    Jesse Peebles, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Henry W. Oetgen, Appellee, v. Jesse Lowe, Appellant.
    (Not to be reported in full.)
    Abstract of the "Decision.
    1. Appeal and error, § 450

      —when objection as to inadmissibility of evidence may not be raised. An objection to evidence that it was not admissible under the pleadings cannot be made for the first time on appeal.
    2. Appeal and ebbob, § 452*—when question whether stipulation is inadmissible in evidence not saved for review. Where a stipulation, admitted in evidence without objection, stated that a certain party would testify that he was the owner of certain land, that certain parties had contracted with him to pay certain drainage assessments levied against the land, that he never released the contract, and that he had not paid any assessments, the question whether the court erred in admitting the stipulation in evidence because the contract referred to could only be proved by the writing itself and the statement that “he never released” was a conclusion, held not saved for review.

      Appeal from the Circuit Court of Schuyler county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Henry W. Oetgen, plaintiff, against Jesse Lowe, defendant, to recover under a certain contract by defendant to drain certain of plaintiff’s lands in a certain drainage district and to protect same from overflow and to pay certain assessments on other lands of plaintiff in said district. From a judgment for plaintiff for $328.57, defendant appeals.
    L. A. Jarman and Glass & Bottenberg, for appellant. '
    B. 0. Willard, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

3. Instructions, § 159*—when instruction to consider all instructions proper. An instruction held proper which required the jury to consider all of the instructions on the question of a release pleaded to the contract sued on.

4. Instructions, § 154*—when modification proper. Modification of instructions to conform to facts in evidence, held proper.


text:
    Sophia A. Jones, Appellee, v. John E. Bryant and Charles F. Bryant, Appellants.
    1. Appeal and error, § 742

      —when original Mil part of record on appeal from decree on cross-Mil. Where appeal was filed from a decree on a cross-bill, rendered on demurrer thereto, the com. plainant standing on the demurrer, held that the original bill was properly incorporated in the record, as the court in passing on the demurrer must consider the bills together for the reason that the cross-bill must be germane to and an auxiliary of the original bill and pray for affirmative relief concerning matters in litigation under the original bill.
    2. Equity, § 493*—when cross-Mil necessary. If a defendant relies on the equities of his case for anything beyond a defense, in a suit in equity, and seeks affirmative relief, he must file a cross-bill asking for such relief.
    3. Equity, § 194*—when cross-Mil sufficient. Where an original bill filed by certain heirs of a testate decedent asked only that the testamentary appointment of a certain trustee be confirmed, and a cross-bill was filed seeking the appointment of another person as trustee, based upon allegations of facts not alleged in the original bill, held that the relief sought by the cross-bill was not merely incidental to that sought by the original bill, and the facts alleged therein were not only a defense to part of the relief sought by the original bill but called for affirmative relief based upon facts not alleged in the original bill.

      4. Trusts, § 125

      —when testamentary trustee may he removed. A trustee appointed by will may be removed where the relations between the trustee and the cestui que trust are such as to interfere with the beneficial administration of the trust.
    5. Trusts, § 125*—power of courts to remove trustees. A court of equity has power to remove a trustee for sufficient reason, hut that power should be exercised sparingly when the appointment is by a will.
    6. Wills, § 363*—when will not construed as authorizing devisee to have possession and management of property. The fact that a will directed that a certain party should receive the part of the estate of which such party had the life use, over and above the value of the residence included in such person’s interest, held to not necessarily mean that such party should have the possession and the management of it.
    7. Parties—division of. Parties to actions are divided into necessary or indispensable parties and proper but not indispensable parties.
    8. Parties—who are necessary. Necessary parties are those without whom the court will not proceed to a decree even as to the parties before it.
    9. Equity, § 97*—when devisees necessary parties to suit to determine question of value of property. Where a will directed that a certain party should have a certain residence property and that same should he charged at its market value against such party’s gross share in the estate, held that all devisees under tlie will would be interested in the decision of the question of the value of such residence property and necessary parties to a suit to determine the question.
    10. Trusts, § 126*—who necessary parties to suit to remove testamentary trustee. All the cestuis que trust, in a trust created by will, are necessary parties to a chancery suit to remove the trustee appointed by will, and the removal of a trustee named ip a will and appointment of a new one would be invalid as to beneficiaries named in the trust who were not made parties.
    Appeal from the Circuit Court of De Witt county; the Hon. George A. Sestee, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Statement by the Court.
    John E. Bryant and Charles F. Bryant, children of John B. Bryant, who died testate February 13, 1916, filed a bill in chancery in the Circuit Court of DeWitt county, praying that the last will of John B. Bryant may be construed; that the appointment of John E. Bryant as trustee under the will of John B. Bryant be confirmed; that the rights of Sophia A. Jones and of her children under said will may be determined; that the court determine and direct the manner of procedure in the trust matters; that an account be taken of all the trust funds received by any of the defendants arising out of the trust property, and that it may be determined what property and funds are trust property. The bill sets forth a copy of the will; it alleges inconsistency in the will with reference to Lot 12 in Block B in Carle’s second addition to Clinton, which the testator owned and on which Sophia A. Jones, a daughter resides, and with reference to the money bequest to her. Sophia A. Jones, Philo S. Jones, her husband, Clinton Jones and Rhea Jones, her children, George W. Bryant, a son of Jacques G. Bryant, who was a son of the testator, Mamie Bryant, the widow of Jacques G. Bryant and L. DeBoice, administrator with the will annexed, are made parties defendant.
    Sophia A. Jones filed an answer and cross-bill. The cross-bill sets forth a copy of the will of John B. Bryant, the second clause of which the original bill seeks to have construed. That clause is: “After the payment of my just debts, including funeral expenses, I hereby will, devise and bequeath unto my son John E. Bryant, in trust for the purposes hereinafter stated, all of my estate, real, personal and mixed, and wheresoever situated; and hereby direct and empower my said son, John E. Bryant, to convert my estate, real, personal and mixed, and wheresoever situated, into money within two years from the date of my death. It is my will and I hereby empower my son, John E. Bryant, as trustee, with full authority to execute and deliver to the purchaser or purchasers of my said estate, or the several parts thereof, a good and sufficient deed or deeds, or evidence of conveyance, to convey the title to said property. It is my will that my said trustee shall be the sole judge of the price for which my said estate, or any part thereof shall be sold; and that he shall sell said estate and convert it into money either by public or private sale as he shall deem best.
    “When said estate is so converted into money; and all my just debts, including funeral expenses, are fully paid, and the expenses of administration, it is my will that my said trustee pay to my son Jacques G-. Bryant, my son Charles F. Bryant, and my son John E. Bryant, each the equal one-fourth (%) part of the net proceeds of my estate. And that my said trustee, John E. Bryant, out of the remaining one-fourth (%) part of my estate purchase the property where my daughter Sophia A. Jones now lives in the City of Clinton, Illinois, for my said daughter Sophia A. Jones, conveying said property to said Sophia A. Jones for and during her natural life, and to the children of my said daughter, Sophia A. Jones, that may be living at the time of her death, equally share and share alike. And that the remainder, if any, of the remaining one-fourth part of my estate to be paid to my said daughter Sophia A. Jones to be loaned by my said daughter Sophia A. Jones, to be secured by a real estate mortgage on lands in the County 'of DeWitt and State of Illinois, and not to be loaned at any one time for a longer period than five years during the lifetime of my said daughter Sophia A. Jones; my said daughter Sophia A. Jones simply to have the interest and income from said money, and at her death the principal to go to her children who may survive her, equally share and share alike.
    “It is my further will that any and all notes and evidences of indebtedness that I may hold or be possessed of at the time of my death against any of my said children, be deducted from the respective share of such child or children against whom I hold or possess any notes or evidence of indebtedness.”
    It further alleges that the testator died seized of Lot 12 in Block B in Carle’s second addition to the City of Clinton and that under the terms of the will the apparent intention of the testator is to give the cross complainant said Lot 12, and that she should be charged the reasonable market value of said property out of her fourth interest in the estate; that from the language of the will it appears the trustee should sell said premises and buy it back, fixing the price of the sale and the repurchase, but that .the intention of the testator was that she should be charged with the market value of said property; that it is of the value of $1,800, but said trustee has stated that it is cheap at $3,000; that John E. Bryant is not a proper person to administer the trust imposed on him by the will when his judgment can be used to the advantage or detriment of cross complainant, and that he is a man of violent temper and very hostile to her and boasts that he has not spoken to her in a friendly manner for twelve years.
    It is also alleged that the testator bought said property a few years before his death for a residence property for cross complainant, and requested her to reside therein; that a conservator had been appointed for the decedent before his death and that John E. Bryant harassed the conservator to sue cross complainant for rent and to eject her from said premises.
    It makes John E. Bryant and Charles F. Bryant parties defendant and prays that a discreet and unprejudiced person may be selected and appointed to carry out. the trust, and that commissioners may be appointed to appraise Lot 12, and that cross complainant may be charged with the equitable value of said Lot 12, and the same deducted from her fourth, and that the remainder of her fourth under the will he paid to her.
    The defendants demurred to the cross-bill and assign, among others as special cause of demurrer, that George W. Bryant, heir at law of John B. Bryant, a devisee, is a necessary party.
    The court overruled the demurrer to the cross-bill and defendants abiding by their demurrer the court entered a decree, finding that all the material allegations of the cross-bill are true; that the second clause of the will which is sought to be construed is, etc.; that it was the intention of the testator that Sophia A. Jones should be charged with the market value of said Lot 12 against her interest in the estate; that the discretionary powers given the trustee affect the interest of Sophia A. Jones, and the trustee appointed by the will is not a proper person to administer the trust, and decrees that the trustee named in the will be removed, and that Weldon Ward be appointed to carry out the terms of the trust.
    William Booth, Herrick & Herrick and F. K. Lemon, for appellant.
    W. F. Gray, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The original bill seeks a construction of the will of the decedent and that John E. Bryant, appellant, who is named in the will as executor and trustee, be confirmed as trustee. DeBoice, defendant in the original bill, is alleged to be administrator with the will annexed. The executor appointed by the will, for some reason that is not alleged, has not qualified. The estate is alleged to consist'of personal estate of the value of $25, fifty-four acres of land, and Lot 12 in Block B in Carle’s second addition to Clinton.

The appellee questions the propriety of incorporating the original bill in the record on an appeal from the decree on the cross-bill. The court in passing on the demurrer to the cross-bill must consider the bills together for the reason that the cross-bill must be germane to and an auxiliary of the original bill and pray for affirmative relief concerning matters in litigation under the original bill. Story’s Eq. Pl. & Pr. sec. 63; Shipman Eq. Pl. 406.

The only allegations contained in the cross-bill, that are not in the original bill, are those regarding the ill-will between John E. Bryant and Sophia A. Jones; the alleged statements by John E. Bryant concerning the value of the residence property and the allegation that the trustee named in the will is not a proper person to carry out the trusts committed to him by the testator.

The original bill does not ask for the appointment of a trustee, 'but only that the appointment of the trustee made in the will be confirmed. It is only by inference from that request that the contention might be made that, if he is not confirmed, he is to be removed and a new trustee appointed. That was not the purpose of the suit. The cross-bill does not ask that the trustee appointed by the will be removed except inferentially by asking that a trustee be appointed. If a defendant relies on the equities of his case for anything beyond a defense, and seeks affirmative relief, he must file a cross-bill asking for "such relief. 5 Encyc. of PI. & Pr. 632. It cannot be said that the relief sought by the cross-bill is merely incidental to the relief sought by complainants in the original bill. On a refusal to confirm the trustee appointed in the will, the original bill might be dismissed by complainant. Without an order removing the testamentary trustee and appointing another trustee, if such action should be required by equity, there would be a serious question whether the appointment of the trustee by the will is or is not in force, since he is not acting as executor. The facts alleged are not only a defense to part of the relief sought by the original bill, but call for affirmative relief based upon facts that are not alleged in the original bill. Wing v. Goodman, 75 Ill. 159; Hook v. Richeson, 115 Ill. 431.

We do not express any opinion concerning the merits of the case, yet a trustee appointed by a will may be removed, where the relations between the trustee and the cestui que trust are such as to interfere with the beneficial administration of the trust (Lorenz v. Weller, 267 Ill. 230), or the interest of the trustee is such as to be antagonistic to the cestui que trust because of his personal interest in the estate. (39 Cyc. 263; Yates v. Yates, 255 Ill. 66.) A court of equity has the power of removing a trustee for sufficient reason, but that power should be exercised sparingly when the appointment is by a will. There was no error in overruling the general demurrer.

From the will it appears that Jacques G. Bryant, a son of the decedent, was given a fourth interest in the estate. ' He is neither made a party to the cross-bill, nor does it explain why he is not made a party. The original bill states that he died before the testator, leaving a son George W. Bryant, who is a defendant to the original bill.

The children of Sophia A. Jones, the cross complainant, are by the will given the remainder in the fourth of which Sophia A. Jones is given the life use. The cross-bill does not state either that she has children or that she has none, neither does it give any reason for the omission. The original bill states that she has two children and makes them parties.

The valuation of the premises to be taken by the cross complainant is of much interest to all the parties interested in the estate. A high price increases the amount to be received by the son of Jacques G. Bryant, and decreases the value of the remainder in the estate to be received by the children of cross complainant after her death and vice versa. The fact that the will directs that she receive the part of the fourth of the estate of which she has the life use over and above the value of the residence does not necessarily mean that she shall haVe the possession and the management of it. Cort v. Massie, 171 Ill. App. 123.

Parties to actions are divided into necessary or indispensable parties, and proper but not indispensable parties. Necessary parties are those without whom the court will not proceed to a decree even as to the parties before it. “This class includes all persons who have an interest in the controversy of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Accordingly, persons whose interests will necessarily be affected by any decree that may be rendered are necessary and indispensable parties.” 15 Encyc. of Pl. & Pr. 610. The cross-bill asks the court to determine the value of said Lot 12. That question will have to be determined either by the original trustee, if his appointment is confirmed, or in some other manner, and all the devisees under the will are interested in the decision of that question, and if it be done under the direction of the Circuit Court, then all interested parties must be parties to that proceeding or to any action preparatory to the determination of the value of the lot.

The objection of a want of necessary parties was made by the demurrer and was apparent on the face of the bill. It was made at the earliest opportunity. All the cestuis que trust, in a trust created by will, are necessary parties to a chancery proceeding to remove the trustee appointed by the will, and the removal of trustees named in a will and the appointment of new ones are invalid as to beneficiaries named in the trust who are not made parties. Butler v. Butler, 164 Ill. 171; Chandler v. Ward, 188 Ill. 322; LaForge v. Binns, 125 Ill. App. 527. The court erred in overruling the special demurrer which urged a want of necessary parties.

It is not proper at this time to discuss the decree rendered, which, without any prayer therefore in the cross-bill, construed the will without regard to the issues joined on that question on the original bill.

The decree is reversed because, of the error in overruling the special demurrer, and the cause is remanded with instructions to sustain the special demurrer on the ground that there is a lack of necessary parties.

Reversed and remanded with directions.


text:
    William C. Bell, Administrator, Plaintiff in Error, v. John A. Egelhoff et al., Defendants in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Jersey county; the Hon. Nobman L. Jones, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by William C. Bell, administrator of the estate of John Egelhoff, deceased, complainant, against John A. Egelhoff, Magdelena Grroppel and Joseph Schmeider, defendants, to foreclose a vendor’s lien and for accounting. From a decree dismissing the bill for want of equity, complainant brings error.

      Abstract of the Decision.
    1. Vendor and purchaser, § 259

      —when subsequent deed operates as release of liens for sums unpaid by purchasers. Where complainant’s intestate executed a certain deed conveying to two of the defendants certain property upon consideration, in part, of certain future payments to be made by such defendants during the intestate’s life, and later said intestate joined with such defendants in a second deed conveying the property to one of such defendants and a third defendant, held that the second deed was in effect a release of all liens for any sums whatever to be paid under the first deed.
    2. Vendor and purchaser, § 269*—when foreclosure of vendor’s lien not allowed. Where complainant’s intestate executed a deed conveying certain property “in consideration of $5,000, the receipt of which is hereby acknowledged,” and other consideration, to certain of the intestate’s children, held that there was no stipulation in the deed that the sum of $5,000 should be paid by the grantees, and no foreclosure of the vendor’s lien would lie because of nonpayment
    3. Annuities—what is effect of death of annuitant before day of payment. If an annuitant dies before the day of payment, his representatives cannot claim any portion of the annuity for the current term.
    4. Vendor and purchaser, § 273*—when evidence sufficient to show no indebtedness in suit to foreclose lien. Evidence, held sufficient to sustain the finding that defendants were not indebted to the estate of deceased, in a suit by an administrator to foreclose a vendor’s lien for certain payments to be made by grantees of property purchased from intestate and for an accounting.
    Hamilton & Hamilton, for plaintiff in error.
    Thomas F. Ferns, Sumner & Reardon, F. A. Du Hadway and W. J. Chapman, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    The People of the State of Illinois, Defendant in Error, v. Johanna Unkel, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Disorderly house, § 2

      —when evidence sufficient to sustain conviction for keeping. The testimony of three detectives who visited defendant’s hoarding house, held sufficient to sustain defendant’s conviction, in a prosecution for keeping a common, ill-governed and disorderly house.
    2. Criminal law, § 532*—when erroneous admission of evidence harmless error. The erroneous admission of evidence which was of small importance and had little hearing on a criminal case, held not to he reversible error.
    Error to the County Court of Vermilion county; the Hon. Lawrence T. Allen, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Johanna Unkel, defendant, for keeping a common, ill-governed and disorderly house. From a judgment of conviction and fine of one hundred and fifty dollars and costs, defendant brings error.
    Charles M. Crayton and John M. Boyle, for plaintiff in error.
    John H. Lewman, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    E. C. Creamer, Plaintiff in Error, v. John Schmidt et al., Defendants in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Roads and bridges, § 59

      —what is character of statutory provisions as to notice of proceedings to lay out road. The statutory provisions as to notice of proceedings to lay out a road are mandatory and jurisdictional and unless complied with the commissioners of highways have no authority to act, and any action so taken by them is without jurisdiction and void.
    2. Roads and bridges, § 78*—when order laying out road is nullity because of failure to give notice. Where commissioners of highways, upon the filing of a petition for a new road, gave the required ten days’ notice under the statute [Rev. St. ch. 121, sec. 76, Cal. Ill. St. Supp. 1916, ¶ 10000(76)] by posting, but failed to serve a certain railroad company with notice ^s required by the statute [Rev. St. ch. 121, secs. 103, 104, Cal. Ill. St. Supp. 1916, ¶ 10000(103), 10000(104)], held that an order laying out the road entered by the commissioners on such proceeding was a nullity and of no more effect than if it had not taken place.

      Error to the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Petition for certiorari by E. O. Creamer, petitioner, against John Schmidt, J. E. Messman and John Henry, respondents, for return of record in a proceeding by the respondents as commissioners of highways for assessment of damages against petitioner upon laying out a new road. Prom a judgment denying petitioner’s motion to quash respondents’ return and quashing the writ, petitioner brings ,error.
    W. A. Perkins, for plaintiff in error.
    Little & Finfrock, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

3. Roads and bridges, § 73 —when order vacating prior void order laying out road ineffectual. An order of commissioners of highways purporting to vacate a prior order laying out road which was void and a nullity in law, held to be of no importance or effect.

4. Roads and bridges, § 64*—ivhen no jurisdiction obtained by justice of peace over person of defendant in proceeding for assessment of damages upon laying out road. In a proceeding before a justice of the peace for assessment of damages upon laying out a road by commissioners of highways, where the s.ummons against a defendant omitted the year oh the date of the summons and the words “Justice of the Peace” after the name of the justice who signed it, held that such omissions went to the jurisdiction of the person of the defendant.

5. Roads and bridges, § 64*—when jurisdiction of subject-matter acquired in proceeding for assessment of damages for new road. In a proceeding before a justice of the peace for assessment of damages upon laying out a new road by the commissioners of highways, jurisdiction of the subject-matter is acquired by the filing of the commissioners’ certificate.

6. Courts, § 51*—when jurisdiction of-person acquired. Where a defendant in a proceeding before a justice of the peace for assessment of damages upon laying out a new road by commissioners of highways personally appeared on the trial, prayed an appeal to the County Court, there appeared personally 'on another trial, moved for a new trial, and upon granting of such motion dismissed his appeal, held that the defendant submitted his person to the jurisdiction of the court in such proceeding.

7. Appeax, and error, § 1817*—when procedendo may be issued. A procedendo, upon dismissal of a party’s appeal, may be issued at any time upon motion of either party.


text:
    Claus Tomhave, Appellant, v. Richard H. Vortman, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Licenses, § 29

      —when evidence insufficient to show license to cut trees. Evidence held insufficient to show a license by plaintiff to defendant to cut certain trees standing on plaintiff’s land, in an action to recover damages for such cutting, the only testimony as to such license being that of defendant, denied by plaintiff, that plaintiff in a certain conversation stated that they would let the trees in question grow up for posts and each take one-half.

      Appeal from the Circuit Court of Morgan county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action of trespass by Clans Tomhave, plaintiff, against Richard H. Vortman, defendant, to recover for cutting of plaintiff’s hedge trees. From a judgment for defendant, plaintiff appeals.
    The appeal was transferred by the Supreme Court, to which it was originally taken, to the Appellate Court by the opinion in Tomhave v. Vortman, 274 Ill. 28, to which reference is made for statement of facts and issues.
    John J. Reeve and Kirby, Wilson & Brockhouse, for appellant.
    William N. Hairgrove and William L. Patton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

2. Licenses, § 34*—when revocable at will. A license given by a party to another to cut trees on the licensor’s land, held to carry no interest in the realty and to be revocable at the will of the licensor.


text:
    Anna M. Niederer, Appellee, v. Edward H. Niederer, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cass county; the Hon. Cut R. Williams, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by Anna M. Niederer, complainant, against Edward H. Niederer and others, defendants, to recover for advancements made by complainant on defendants’ account under a certain contract between them for improvements upon lands owned by them in common, for accounting, and to declare a lien as to such advancements and enforce same. From a decree in favor of complainant in accordance with the prayer of the bill, defendant Edward H. Niederer appeals.
    Thomas D. Masters, for appellant.
    Charles AS. Martin and A. A. Beeper, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Tenancy in common, § 5 —when evidence sufficient to show that material and labor represented fair, cash market value of improvements. Evidence held sufficient to show that the material and labor which went into certain improvements on lands owned by complainant and defendants in common represented the fair, cash market value thereof, in a suit to recover from defendants their share of the cost of such improvements advanced by complainant under a contract between them to secure such advancements.

2. Interest, § 20*—when allowed. Interest is allowable upon money advanced by one party for another’s use under a contract between them for such advancement.

3. Assignments, § 15*—when chose in action assignable in equity. A chose in action is assignable in equity and will be enforced therein together with the lien securing it.

4. Tenancy in common, § 13*—who proper party complainant in suit to recover share of expense of improvements made by deceased tenant. Where tenants in common entered into a contract for certain improvements upon the land so owned by them and to share the expense of such improvements equally and that any one advancing more than his share should, on completion of the work, be secured for the excess and have a lien therefor upon the interests of those who did not advance their full share, and one of such tenants who made such excess advancements died, leaving another of such tenants as sole legatee and devisee of the estate of such decedent, held that such legatee and devisee, and not the executor of the will of decedent, was a proper party complainant in a suit to enforce such contract as to such excess advancements made by the decedent.

5. Tenancy in common, § 10*—when cotenant not innocent purchaser without notice of lien for improvements. W'here tenants in common entered into a contract for certain improvements upon the land so owned by them and to share the expense of such improvements equally, and that any one advancing more than his share should, on completion of the work, be secured for the excess and have a lien therefor upon the interests of those who did not advance their full share, one of such tenants who purchased the interest of another would not be an innocent purchaser without notice as to any lien existing under the contract on such interest but would be bound to ascertain whether such lien existed.


text:
    The People of the State of Illinois, Defendant in Error, v. Louis Klun, Plaintiff in Error.
    1. Intoxicating liquors, § 145

      —when sale of liquor as shift or device to evade law against Keeping place open on Sunday question for jury. Under an information charging the defendant with keeping open a tippling house, or place where liquor is sold or given away, on Sunday, in violation of section 259 of the Criminal Code (J. & A. If 3946), where the defendant, claiming to act as agent for his wife, to whom a United States Government wholesale liquor stamp was made out, conducted a business of selling beer in five-gallon kegs and forty-eight bottle cases on land, just outside of anti-saloon territory, occupied by defendant and his wife, which beer was taken from his building where sold to a tent about one hundred feet away erected by him and there drunk by people who congregated there for that purpose, held that this tended to show but a shift or device to evade the law so as to make it a question of fact for the jury whether defendant was guilty.
    2. Intoxicating liquors, § 161*—when judgment in criminal prosecution for illegal sale erroneous. A judgment, upon conviction under four counts of an information under section 259 of the Criminal Code (J. & A. If 3946), for keeping open a tippling house, or place where liquor was sold, on Sunday, for “$400, being the sum of $100 upon the first, second, fourth and fifth counts in said information,” held to be informal and erroneous in that it was for the gross sum of $400, as there should be a several judgment upon each count.
    3. Intoxicating liquors, § 161*-—what proper form of judgment for conviction on several counts. Each count of an indictment under section 259 of the Criminal Code (J. & A. If 3946), for keeping open a tippling house, or place where liquor is sold, on Sunday, presents a different offense and the court must assess a fine, upon conviction, under each count as for so many different offenses.
    Error to. the County Court of Montgomery county; the Hon. T. J. McDavxd, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Smith & Friedmeyer, for plaintiff in error.
    J. Earl Major and Hill & Bullington, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Plaintiff in error was found guilty under the first, second, fourth and fifth counts of an information filed by the State’s Attorney of Montgomery county, which charged him with keeping open a tippling house, or place where liquor is sold or given away, upon the first day of the week, commonly called Sunday, in violation of section 259 of the Criminal Code (J. & A. 3946). The court denied a motion for a new trial and entered judgment as follows: “And thereupon gave judgment on the verdict against the defendant and in favor of the plaintiff in the sum of Four Hundred ($400.00) Dollars, being the sum of One Hundred ($100.00) Dollars upon the first, second, fourth and fifth counts in said information, together with the costs of said prosecution, and that the People have execution for their said costs and fine. The court further orders that said plaintiff stand committed to the county jail until said costs and fine are fully paid.”

The City of Litchfield became anti-saloon territory under the Local Option Act but the rest of the township, in which the city was located, was not. Just outside of the city limits on a tract of land consisting of about eight acres was located a building occupied by plaintiff in error and his wife. A United States Government wholesale liquor- stamp was made out in the name of the wife. From this building plaintiff in error, who claims that he was acting solely as the agent of his wife, conducted a wholesale liquor business by selling beer in kegs of five gallons or more and in cases containing forty-eight bottles. The evidence shows that his wife had very little, if anything, to do with the business but that it was practically wholly under the management of plaintiff in error. Plaintiff in error and his family lived in-the City of Litchfield and did not reside upon the tract of land mentioned, though in a small way he farmed the same in connection with the beer business. About one hundred feet from the building he had erected a tent, and on Sunday kegs and cases of beer were taken from the building to this tent and drunk there by people who congregated at the tent for that purpose. The beer was taken to the tent sometimes by plaintiff in error and sometimes by other persons. The evidence further shows that on occasions there was disorder and drunkenness in and about the tent. The defense was that plaintiff in error only sold the beer in wholesale lots, viz., in quantities of five gallons or more, and consequently could not have been guilty of keeping a tippling house within the meaning thereof as defined in the Dramshop Act. The evidence fairly tends to show that the taking of the kegs and cases to the tent and the permitting of persons to drink the same upon his premises was but a shift or device to evade the law, at least the circumstances are such that it was a question of fact for the jury to determine whether the plaintiff in error was guilty of violating said section of the Criminal Code.

There was no reversible error in the giving or refusing of the instructions nor in the admission of evidence, but the judgment, however, is informal and erroneous. The judgment is for the gross sum of four hundred dollars. The judgment should be a several judgment upon each count of the indictment. Each count presents a different offense, and in cases of this character the court must assess a fine under each count as for so many different offenses. Borschenious v. People, 41 Ill. 236; Kroer v. People, 78 Ill. 294; People v. Elliott, 272 Ill. 592. There being no error in the record up to the time of the entry of the judgment, the judgment is reversed and cause remanded with directions to the County Court to render a proper judgment on the verdict. Elliott v. People, supra; Johnson v. People, 83 Ill. 431.

Reversed and remanded with directions.


text:
    William A. Compton, Defendant in Error, v. Mary Pearl Compton, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Divorce, § 12

      —what constitutes extreme and repeated cruelty. Cruelty, under the divorce statute, means physical acts of violence, bodily harm such as endangers life and limb, such acts as raise a reasonable apprehension of bodily harm and show a state of personal danger incompatible with the marriage state; and bad temper, petulance of manner, rude • language, want of civil attentions, or angry or abusive words are not sufficient grounds for divorce for extreme and repeated cruelty.

      Error to the Circuit Court of McDonough county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by William A. Compton, complainant, against Mary Pearl Compton, defendant, for divorce on the ground of desertion for more than two years, and cross-bill by defendant against complainant for divorce on the ground of extreme and repeated cruelty. From a decree dismissing the cross-bill for want of equity and granting a divorce on the original bill, defendant brings error.
    H. W. Masters and E. L. Masters, for plaintiff in error.
    Charles W. Flack and George D. Ttothiclief, for defendant, in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

2. Divorce, § 12 —what does not constitute extreme and, repeated, cruelty. In a suit for divorce on the ground of extreme and repeated cruelty, where the only acts of cruelty shown were nine years apart, one of which was a mere slapping in the face, not producing any bruise, after which the parties continued to live happily together for many years, and the other occurred while complainant was trying to get a stick pin away from defendant, when he turned and knocked her down, apparently not in anger, held, that the court did not err in directing a verdict for the defendant.

3. Instructions, § 120*—when properly refused. An instruction which ignores undisputed evidence is properly refused.

4. Divorce, § 11*—when consent to separation may he withdrawn. Consent to a separation between a husband and wife may be withdrawn at any time within the two years under the divorce statute as to desertion.

5. Appeal and error, § 1560*—when refusal of instruction harms-less error. Refusal to give an instruction as to the credibility of witnesses, held not reversible error in view of other instructions given.


text:
    The People of the State of Illinois, Defendant in Error, v. Chris Jensen, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the County Court of De Witt county; the Hon. Frederick C. Hill, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Proceeding by the People of the State of Illinois, plaintiff, against Chris Jensen, defendant, for contempt of court. From a judgment committing defendant to jail for four months and imposing a fine of one hundred dollars, defendant brings error.
    Abstract of the Decision.
    Contempt, § 5

      —when court no jurisdiction to enter order for. In a proceeding against a defendant for contempt of court, based upon a petition filed by his wife charging that he had failed to pay certain sums for the support in a certain boarding school of their children pursuant to an order of court, and that he had forcibly taken possession of one of said children from petitioner, to whom another order of court had awarded its custody, where the record failed to show the nature of the proceedings in which such orders were entered, or what such orders were, or to whom said sums- were to be paid, or that there was an order awarding to petitioner the custody of the children, or that defendant had any notice of such an order, held that no jurisdiction of the County Court to enter such orders or such judgment for contempt appeared.
    W. F. Gray, for plaintiff in error.
    L. 0. Williams, for defendant in error; E. B. Mitchell, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    W. H. Whitaker, Appellant, v. T. W. Ginger, Appellee.
    (Act to be reported in full.)
    Abstract of the Decision.
    Chattel mortgages, § 216

      —what are rights of assignee of note stating on face to be secured by chattel mortgage. Under Rev. St. ch. 95, sec. 1 (J. & A. ¶ 7602), the assignee of a note which states on its face that it is .secured by a chattel mortgage takes the note subject to all the defenses that existed between the maker and the payee at the time of the assignment, and he is not a holder without notice of the defenses thereto.
    Appeal from, the County Court of Christian county; the Hon. C. A. Prater, .Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Judgment by confession in favor of W. H. Whitaker, plaintiff, against T. W. Ginger, defendant, for $766.35 and $50 attorney fees on a judgment note for $749.15, bearing seven per cent, interest, payable to the order of H. M. Monroe and by him indorsed, and stating on its face “secured by chattel mortgage.” From a judgment for the defendant on a trial after opening up of the judgment by confession with leave to plead and plea of general issue with notice of defense that entire principal of the note was for usury, plaintiff appeals.
    J. E. Hogan and W. S. Greer, for appellant.
    George T. Wallace and L. G. Grundy, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Mary C. Gordin and Edward B. Gordin, Executors, Appellees, v. G. W. Karr, Executor, et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Ford county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Bill by Mary C. Gordin, and Edward B. Gordin, executors of the estate of Hannah J. Martin, deceased, complainants, against G. W. Karr, executor of the estate of Josephus Martin, deceased, Emma B. Collison, Mary E. Collison, Effie Ireland, Edna Duncan, Walter Karr and Charles Karr, defendants, to set aside an antenuptial contract entered into by the said Hannah J. Martin, then Hannah J. Amm, deceased, and said Josephus Martin, deceased. From a decree setting-aside the contract and directing payment of the widow’s award and one-third of the personal estate of the decedent Josephus Martin, defendants appeal.
    Upon prior hearing and appeal to the Supreme Court, an opinion was rendered, Martin v. Collison, 266 Ill. 172, to which reference is made for statement of facts and issues as then appearing.
    Barry & Morrissey and Schneider & Schneider, for appellants.
    Cloud & Thompson, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

Husband and wife, § 29 —when evidence insufficient to show that alleged antenuptial contract was entered into after marriage. Evidence held insufficient to show that the alleged antenuptial contract sought to be set aside was executed after the parties thereto had entered into a marriage agreement and that a confidential relation between them then existed,


text:
    Harley E. Shride, Appellant, v. Estate of William P. Abraham, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Claim by Harley E. Shride, claimant, against the estate of William P. Abraham, deceased, defendant, for a one-fourth part of certain chattel property belonging to claimant’s mother and alleged to have been appropriated by the decedent and never accounted for by him as executor of her estate. From a decree on appeal from the Probate Court disallowing the claim, claimant appeals.
    Chapee, Chew & Baker, for appellant.
    Whitaker, Ward & Pugh, for appellee.

      See Illinois Notef Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

Husband and wife, § 69 —when gift by wife to husband of personalty inferred. Where a wife mingled her separate personal property with that of her husband and the two used and disposed of the combined properties in common, and she by her will disposed only of certain cash on hand belonging solely to herself, no part of which represented the value of the proceeds of any of such personal property in their common use and disposal, held' that the husband did not hold such separate personal property of his wife’s which had been mingled with his own and so used and disposed of by them in common in trust for her, but that a gift from her to him of same would be inferred in the absence of a contrary agreement.


text:
    Nicholas Berns, Appellant, v. Oscar S. Perry, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Nicholas Berns, plaintiff, against Oscar S. Perry, defendant, to recover on a note for $260.50. From a judgment for defendant upon a verified plea denying the execution of the note, plaintiff appeals.
    W. C. & T. M. Header-, for appellant.
    Whitaker, Ward & Pugh, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Bills and notes, § 80 —how forged instrument may he ratified. A forged instrument may be ratified either directly or by implication under certain circumstances.

2. Bills and notes, § 80*—when forged instrument deemed ratified. A party can only be held to have ratified a forged instrument when he acted with full knowledge of all the material facts.

3. Bills and notes, § 80*—when ratification of forged instrument not implied. Ratification of a forged instrument will never be implied from a doubtful state of facts.

4. Estoppel, § 37*—when estoppel in pais created. The doctrine of estoppel in pais is to prevent injuries arising from conduct or declaration which have been acted on in good faith and which would be inequitable to permit the party to retract, and in order to create such estoppel the party estopped must have induced the other party to occupy a position which he would not have occupied but for such acts and declarations, and which also must be such as would ordinarily lead to the result complained of.


text:
    William T. Ross, Appellant, v. Estate of James H. Ross, Deceased, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Claim by William T. Ross, claimant, against the estate of James H. Ross, deceased, defendant, for $626 for lodging, board and nursing of the deceased during his lifetime. From a judgment on appeal from. the County Court for the defendant, upon a directed verdict, plaintiff appeals.

      Abstract of the Decision.
    1. Parent and child, § 63

      —when existence of agreement by parent to pay for board and lodging question for jury. Under a claim filed by a son against the estate of his deceased father for board and lodging furnished his father during the latter’s lifetime, held, if there was any evidence from which, standing alone, the jury could, without acting unreasonably in the eye of the law, find that there was an understanding or agreement between claimant and his father that the latter should pay for such board and lodging, the court should have permitted the cause to be submitted to the jury.
    2. Witnesses, § 22*—when witness not incompetent. A witness is not rendered incompetent to testify merely because he has been found to be a distracted person and incapable of transacting his business affairs.
    3. Evidence, § 154*—when admissions of distracted person admissible. The admissions of a distracted person who is incapable of transacting his business affairs are not incompetent evidence for that reason.
    4. Witnesses, § 22*—when insane person not incompetent as witness. An insane person is not incompetent to testify if his mental derangement does not affect the subject-matter of the testimony either at the time of testifying or at the time of the occurrence.
    5. Witnesses, § 48*—when objection to incompetency must be made. Where objection is made to the competency of a witness to testify on account of his mental condition, the objection must be made before he has given any testimony.
    6. Witnesses, § 50*—competency as qtiestion for court. It is for the court to determine upon the competency of a witness to testify.
    7. Witnesses, § 50*—determination of competency in absence of jury. Evidence in regard to the competency of a witness to testify should not, in the first instance, he taken in the presence of the jury.

      Carl E. Epler and Bollard Wagrer, for appellant.
    Johr E. Wall, E. C. Peter and S. A. Hubbard, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

8. Witnesses, § 50*—applicability of rules as to determines tion of competency to admissions. The same rule as to determining the competency of a witness to testify because of his being a distracted or insane person applies where admissions made by such person are sought to be introduced in evidence.


text:
    Thomas D. Smith, Appellant, v. Thomas Freeman and Martha Freeman, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 688

      —when evidence sufficient to sustain -finding as to construction of scaffold by employee or knowledge

      of defective condition. Evidence held sufficient to sustain the finding either that plaintiff constructed the scaffold by the breaking of which he was injured, or had full knowledge of its construction and condition before he went upon it, in an action to recover damages for such injuries sustained while plaintiff was working as a carpenter in building a porch for defendants.

      Appeal from, the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Thomas D. Smith, plaintiff, against Thomas Freeman and Martha Freeman, defendants, to recover damages for personal injuries sustained by plaintiff while working as a carpenter in building a porch for defendants. From a judgment for defendants, plaintiff appeals.
    Walter T. Gunn, for appellant; Thomas A. Graham, of counsel.
    Tilton & Taylor, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

2. Instructions, § 159*—consideration as series. The instructions taken as a series held to have fairly instructed the jury.


text:
    George B. Jones, Appellee, v. William F. Gaumer, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Vendor and purchaser, § 352

      —when evidence sufficient to show contract for deed to land to be subject to only one mortgage of

      specified amount. Evidence held sufficient to sustain the finding that defendant had contracted with plaintiff to deed to him a certain eighty acres of land subject to a single mortgage of $2,000, in an action to recover damages for breach of such contract by defendant deeding said eighty acres subject to two mortgages, each for $2,000.

      Appeal from the Circuit Court of Edgar county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by George B. Jones, plaintiff, against William F. Ganmer, defendant, to recover damages for breach of a contract for the exchange of real estate. From a judgment for plaintiff for $2,250, defendant appeals.
    W. H. Clinton, for appellant.
    A. B. Dennis and Harvey Gross, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    S. D. Dole, Appellant, v. J. D. Hardinger and Anabel Alexander, Appellees.
    1. Statutes, § 196

      —what considered in ascertaining intention of Legislature. In attempting to ascertain the intention of the Legislature for the purpose of construing the meaning of a statute, a court will have regard to existing circumstances or contemporaneous conditions prevailing at the time of its enactment, the law existing prior to its passage, and the mischief sought to be remedied.
    2. Animals, § 12*—what is liability at common law for injuries by dogs jointly. At common law separate owners of several dogs will not jointly be liable for damages done jointly by the said several dogs.
    3. Animals, § 12*—what is liability under statute of owners of dogs jointly doing damage. Under the Act approved February 11, 1853, “providing for the payment of damages done by dogs” (J. & A. HIT 406, 407), the owner of each of several dogs jointly doing damage is liable for the whole amount of the damage.
    Appeal from the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Vause, Hughes & Kiger, for appellant.
    O. E. Patterson and E. J. Miller, for appellee J. D. Hardinger.

      Edward C. Craig, Donald B. Craig and James W. Craig, Jr., for appellee Anabel Alexander; Fred H. Kelly, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant sued appellees jointly in an action on the case by virtue of an act entitled, “An Act providing for the payment of damages done by dogs” (approved February 11, 1853, J. & A. fifí 406, 407), for damages done to his flock of sheep by the dogs owned by the defendants.

The amended declaration avers, in substance, that appellant was, on November 12, 1915, the owner of three hundred sheep which were upon his own lands; that upon the same day each of the appellees was the owner of a dog; that upon said day said dogs killed sixty-three of appellant’s sheep and chased and wounded the remainder of them; that the dogs attacked the sheep pursuant to a common purpose and design, and acted as a common pack simultaneously, each aiding and abetting the other, and killed and chased said sheep; that it is unknown to appellant, and he is unable to prove, which dog killed or chased or wounded each particular sheep.

To this declaration appellees severally demurred and the demurrers were sustained by the court and appellant having elected to abide by his declaration, judgment was rendered in bar of the action. To reverse this judgment this appeal is prosecuted.

The Act of 1853 mentioned provides as follows:

“The owner of any dog or dogs shall be liable in an action on the case for all damages that may accrue to any person or persons in this State, by reason of such dog or dogs killing, wounding, or chasing any sheep or other domestic animal belonging to such other person or persons.”

The contention of appellees is, and the court below so held, that a joint action against separate owners of dogs for killing sheep will not lie under this statute.

The statute does not say the “owner or owners” of any dog or dogs shall be liable, but uses the word “owner” in the singular. It is elementary, that in attempting to ascertain the intention of the Legislature for the purpose of construing the meaning of a statute, a court will have regard to existing circumstances or contemporaneous conditions prevailing at the time of its enactment, the law existing prior to its passage and the mischief sought to be remedied. Chapter 131, Rev. St. (J. & A. ft 11102 et seq.), provides that general provisions, terms, phrases and expressions in statutes shall be liberally construed in order that the true intent and meaning of the Legislature may be fully car-. ried out and, if it is necessary to accomplish this, words implying singular number may extend and be applied to several persons and things. At common law separate owners of several dogs will not jointly be liable for damages done jointly by the said several dogs. Denny v. Correll, 9 Ind. 72; VanSteenburgh v. Tobias, 17 Wend. (N. Y.) 562; Russell v. Tomlinson, 2 Conn. 206; Buddington v. Shearer, 20 Pick. (Mass.) 477; Cooley on Torts (3rd Ed.), vol. 1, p. 249. If this act should be given the construction contended for by appellees, then there was no necessity for its passage and no mischief remedied by its enactment, except the abrogation of the necessity of proving scienter on the part of the owner.

Section 1620, Statutes of Wisconsin 1898, provides as follows:

“The owner or keeper of any dog which shall have injured or- caused the injury of any person or property or killed, wounded or worried any horse, cattle, sheep or lands, shall be liable to the person so injured and the owner of such animals have all damages so done without proof or notice to the owner or keeper of such dog or knowledge by him that his dog was mischievous or disposed to kill, wound or worry horses, cattle, sheep or lands.”

The substantive part of this statute is practically the same as the statute of this State, and the Supreme Court of Wisconsin in the case of Nelson v. Nugent, 106 Wis. 477, in answer to the same contention made in that case as is presented in the case at bar, held:

“As we read it, the statute has changed the common-law liability of the owners of dogs for injuries done by them. * * * The danger of damage to sheep from dogs, and the difficulty of protecting flocks, is so great that it was deemed necessary to adopt stringent measures for that purpose. It is a well-known fact that dogs which have the propensity of killing sheep often travel in pairs and make their attacks together. It is practically impossible, in most cases, to tell what damage was done by one dog and what by the other. The difficulty of apportioning the damage led the Legislature to adopt the language set forth in the statute, making the owner or keeper of a dog doing injury to sheep liable for all the damage so done. The circumstance that another dog was engaged in the same act does not lessen the liability, unless we are able to apportion the damage done by each dog. The impossibility of doing so is manifest. It cannot be done unless some arbitrary rule is adopted, as was done in a few of the cases cited by the defendant. Partenheimer v. Van Order, 20 Barb. 479; Powers v. Kindt, 13 Kan. 74. In Wilbur v. Hubbard, 35 Barb. 303, two dogs killed sheep of the value of $19. The dogs were of unequal size, and, the defendant’s being the larger, a verdict for $12 against him was sustained on the ground that the jury had a right to say that the smaller dog did not do as much damage as the larger one.

“We must decline to follow the rule laid down by these cases. It is quite contrary to the terms and spirit of the statute. When these things are considered, it is but reasonable to hold that each owner of a dog engaged in doing the damage is liable for the whole amount of damage done. Any other holding would tend to emasculate the statute and deprive the sheep owner of the protection the statute was designed to give. Suppose two dogs, with different owners, together attack and frighten a traveler’s horse, and damage ensues; under the rule sought to be invoked, the injured party could recover a fraction of his damages from one owner, to be measured according to the size of his dog, and the remainder from the other. This hardly accords with the true meaning and intent of the statute. The construction given this statute by the trial court, and here approved, finds support in the following cases: Kerr v. O’Connor, 63 Pa. St. 341; Worcester County v. Ashworth, 160 Mass. 186.”

While other jurisdictions hold a contrary view, we are of the opinion that the rule as announced by the Supreme Court of Wisconsin is the more reasonable and logical one. Any other construction would make the act abortive of any additional remedial relief except as heretofore noted. Under the common law, if two dogs owned by different- persons joined in the killing or worrying of sheep, the owner of the sheep has no remedy unless he can prove just what damage each particular dog did and sue its respective owner therefor. Such proof is substantially never possible to obtain, and it was evidently the intention of the Legislature to remedy this defect in the common law by enacting the statute in question.

The judgment is reversed and the cause remanded with directions to override the demurrers to the declaration.

Reversed and remanded with directions.