text:
    Ira M. Cobe, Appellee, v. Edward H. Guyer et al., Appellants.
    Gen. No. 4,905.
    1. Equity practice—effect of answer after demurrer overruled. By answering over after demurrer a party waives the right to assign error on the ruling of the court on his demurrer, but" it does not waive a defense which he may make and does make by his answer and which requires no demurrer.
    2. Superior Court of Cook County—jurisdiction of. The Superior Court of Cook County is a court of general jurisdiction, has concurrent jurisdiction with the Circuit Court of Cook County and has jurisdiction of the subject-matter of appointing receivers for homestead and loan associations.
    3. Jurisdiction—presumptions which aid. In a collateral proceeding it is a rule of uniform application that in relation to courts of general jurisdiction nothing is to be presumed to be out of their jurisdiction but that which specially appears to be so.
    4. Homestead loan associations—what does not establish usury. A bonus or bribe, no part of which goes to an association, from which the association has received no benefit, and of which the association has no knowledge, will not render a loan usurious.
    5. Homestead loan associations—statute with respect to prü ority of loans construed. The statute with respect to priority of loans is self-enforcing and requires no by-laws to aid it, when the by-laws fix the rate of interest and premium and thus in effect provide that all loans shall be on the level premium plan.
    Foreclosure. Appeal from the Circuit Court of Rock Island County; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement by the Court. On August 15, 1896, Edward H. Guyer, Charles H. Pope, Charles E. White and George W. Walker were the owners of one hundred shares of the capital stock of the Masonic Mutual Savings and Loan Association, a corporation chartered on the 21st day of April, 1891, under the homestead and loan association laws of Illinois under the name of the First National Masonic Mutual Savings Association, the name of which was subsequently changed to the Masonic Mutual Savings and Loan Association. On that date they applied for and obtained from the association a loan of $10,000 and executed a bond to the association for said sum,. signed by each of them, binding themselves jointly and severally to pay said sum to said association, its successors and assigns, as follows: from and after the date of said bond $50 dues on said stock, $50 as interest on said loan and $50 as premium on said loan, all and each on or before the first day of each and every month in advance, until said stock shall mature and said bond shall be paid in accordance with the charter and by-laws of said association. On the same day Edward II. Guyer and Constance K. Guyer executed a mortgage to said association on certain real estate in the county of Eock Island securing said bond. The borrowers wrote a letter to the association on August 22, 1896, directing it how to pay over the money loaned, and the money appears to have been paid as directed. Default was made in keeping np the monthly payments, and in August, 1898, the amount delinquent amounted to $2,600. On August 30, 1898, the four ¡makers of the original loan subscribed for tweuty-six additional shares of stock in the association, and obtained an additional loan of $2,600- on this stock, secured hv an additional bond and mortgage, and applied this loan in payment of the delinquent installments due under the former mortgage.
    On July 1, 1899, the borrowers being in default on both mortgages and the association threatening to bring suit to foreclose them, an accounting with the association was had in which it was found that the amount owing on both mortgages was $13,379.60. This amount was at that time paid by crediting the withdrawal value of the 126 shares of stock $1,328 and by Guyer, Pope and White obtaining a new loan, evidenced by five notes signed by them for $12,000, four of said notes being for $300 each, due in one, two, three and four years, and one for $10,800 due in five years, all bearing interest at the rate of 7 per cent per annum payable on the first day of each and every month. The said five notes were secured by the mortgage executed by Edward H. Guyer and Constance K. Guyer involved in this case; this mortgage was on property that was included in the original mortgage. The balance of the $13,-379.60 was paid by the association accepting the unsecured note of Guyer, Pope, and White for $51.60 due in sixty days. The association at that time cancelled and discharged the two bonds executed by Guyer, Pope, Whi-te and Walker and the mortgages securing them.
    On January 29, 1901, in a suit brought in the Superior Court of Cook county, entitled Carry et al. v. Masonic Mutual Savings and Loan Association et al., a decree was entered declaring the association insolvent and appointing a receiver, and on February 16, 1901, an additional decree was entered accepting the resignation of the receiver first appointed and appointing the Equitable Trust Company. On April 6, 1901, the association by its deed conveyed to the Equitable Trust Company as receiver all its property, real and personal, including all notes, bonds and mortgages relating to the business of the association. This deed was executed by the association by its president and secretary under the seal of the corporation, and was duly acknowledged. The making of this deed was hy the direction of four of the five directors of the association, as appears from a memorandum on the deed signed by them. On November 21, 1902, the Superior Court of Cook county entered an order of record in the case in which the receiver was appointed, authorizing the receiver to sell all the assets of the association to Cobe, the appellee, for $33,000. In pursuance of this order the Equitable Trust Company executed a deed assigning the note and mortgage in controversy with oilier assets to appellee, and on January 22, 1903, the Superior Court of Cook county entered an order approving the report filed on that day, reciting the transfer and conveyance of all its assets to Cobe. During the pendency of the receivership Guyer, Pope and White' applied to and obtained from the receiver a large number of partial releases, releasing portions of the premises included in the mortgage, and subsequent to the sale and conveyance of the mortgage to Cobe they obtained from him similar partial releases. On September 9, 1904, Cobe filed a bill to foreclose the notes dated July 1, 1899, remaining unpaid and the mortgage securing them. The defendants demurred to the bill, and thereupon an amended and supplemental bill was filed. The defendants again demurred, the demurrer was' overruled and the defendants answered over. The answers state that appellants and Walker in August, 1896, were in debt in the sum of $4,426.53 and that appellants applied to the association for a loan to pay these debts and that the association loaned them $8,925.04 and demanded as a condition precedent that appellants and Walker subscribe for one hundred shares of stock and make a bond reciting the loan of $10,-000; that the difference between the $8,925.04 loaned and the $10,000 mentioned in the bond was made up of the following items: membership fee $100; six months dues $300; attorney’s fees $35; interest on loan to September 1, 1896, $189.96, and $500 commissions, a total of $1,074.96, which was a bonus to the association and was usury; that the loan was not bid for in open meeting of the shareholders as required by statute, but said interest and premium were arbitrarily fixed by the association for the purpose of corruptly exacting usury; that there was no by-law of the association dispensing with offering money to loan in open meeting, the preference to be decided by priority of application; that on August 30, 1898, after the making of said loan the association claimed appellants and Walker were-in default in the sum of $2,600 and threatened to foreclose, and proposed that appellants and Walker should subscribe for twenty-six additional shares of stock, and make a bond and mortgage for $2,600 and appellants to prevent loss and to obtain time complied therewith; that on July 1, 1899, the association claimed a default on both bonds and threatened to foreclose, and that appellants made the notes and mortgage under threats and duress, but they deny that it was agreed that $12,000 was then due. The answers further deny the jurisdiction of the Superior Court of Cook county in the proceedings in which the receiver was appointed, and say that the same are null and void, and deny the title of appellee to the notes and mortgage, and deny that appellants ever asked for or obtained any release from appellee or paid any money to him, and deny that anything remains due on said notes and mortgage. The appellants filed a cross-bill, setting up the giving of the notes and mortgage as is set forth in the answers alleging usury and payment of the principal sum loaned, and praying a surrender and cancellation of the notes and mortgage. Appellee answered the cross-bill denying its allegations. Replications were filed and a reference to the master was made on both bills, to take the evidence and report the same with his conclusions. The master reported that Guyer, Pope and White were indebted to appellee in the sum of $5,657.55 with interest on $4,676.83 from January 23, 1907. The objections heard before the master were permitted to stand as exceptions in the Circuit Court, and on a hearing the exceptions were overruled and a decree of foreclosure was entered, from which decree this appeal is prosecuted.
    J. T. Kenwobthy and S. R. Kenwobthy, for appellants.
    S. W. Swabey, for appellee; W. R. Moose, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

The appellants challenge the right of the appellee to bring this suit to foreclose the mortgage on the ground that the appellee is not the owner of the notes and mortgage. It is argued that the Superior Court of Cook county had no jurisdiction in the suit begun in that court to wind up the affairs of the insolvent Masonic Mutual Savings and Loan Association, and that the appointment of a receiver in that court and all acts of such receiver are null and void. The appellants filed a special demurrer to the amended and supplemental bill, the sixth ground of demurrer being: “This bill shows complainant predicates title by virtue of decree of Superior Court appointing a receiver which is a nullity for want of jurisdiction of the subject-matter.” Appellants assign for error and insist that the court erred in overruling the demurrer and appellee insists that the appellants haring by their demurrer raised the question of law as to the jurisdiction of the Superior Court of Cook county in the suit in which the receiver was appointed should have stood by their demurrer, but having answered over that they have abandoned and waived their right to insist on that defense. Neither contention can be sustained. “By answering over after a demurrer a party waives the right to assign error on the ruling of the court on his demurrer, but it does not waive a defense which he may make, and does make, by his answer and which requires no demurrer.” Bauerle v. Long, 165 Ill., 340; Anderson v. Olsen, 188 Ill., 502.

It is insisted by appellants that because section 25 of the homestead and loan act provides that “receivers may be appointed whenever nine or more shareholders of any association shall file a petition in the circuit court of the county in which the principal office of such association is located, setting forth the facts relied upon for the appointment of a receiver. Such petition shall be subscribed and sworn to by such petitioners,” etc., therefore the Superior Court of Cook county did not have jurisdiction of the subject-matter of appointing receivers of such associations having their principal office in Cook county. The Supreme Court of Illinois, in construing sections 23 and 24 of article VI of the Constitution of 1870, has held that the Superior Court of Cook county has precisely the same jurisdiction as circuit courts, and that the judges of that court are vested with the same powers as judges of the Circuit Court; that when these provisions of this article are considered together, “it is apparent the intention of the framers of the Constitution was, to give the several judges of these respective courts identically the same powers and place them precisely upon the same footing; and that it was not the intention to make these courts otherwise than circuit courts, hut composed of branches corresponding with the number of judges, each judge, while holding such branch, having all the powers of a circuit court.” “Both courts originated from the same sovereignty, and they have co-ordinate jurisdiction in civil cases in Cook county.” Jones v. Albee, 70 Ill., 34; Samuel v. Agnew, 80 Ill., 553; Berkowitz v. Lester, 121 Ill., 99; C. & N. W. Ry. Co. v. C. & E. R. R. Co., 112 Ill., 589; Salomon v. Chicago Title & Trust Co., 115 Ill. App., 194. The Superior Court of Cook county is a court of general jurisdiction and has jurisdiction of the subject-matter of appointing receivers for homestead and loan associations. The proceedings of that court are only relied upon to give the appellee title to the instruments sought to be foreclosed, and those proceedings are only collaterally involved. It is a rule of uniform application that in relation to courts of general jurisdiction nothing is to be presumed to be out of their jurisdiction but that which specially appears to be so. “This rule is limited to collateral proceedings, and where the record of a judgment or decree is relied on collaterally, jurisdiction must be presumed in favor of a court of general jurisdiction, although it be not alleged or fails to appear in the record.” Swearengen v. Gulick, 67 Ill., 208; Field v. Peeples, 180 Ill., 376. “This presumption which the law indulges in favor of its jurisdiction can only be overcome in a collateral proceeding where the record itself shows there was no jurisdiction.” Osgood v. Blackmore, 59 Ill., 261.

There was introduced in evidence a decree, in the case of Carry .and others against the Masonic Mutual Savings and Loan Association and others, entered in the Superior Court of Cook county in January, 1901, which recites that that case came on to be heard upon the bill of complaint as amended, the answers of the defendants and replication thereto, with the evidence heard in open court; the various findings of the court as to the organization of the association ; that the nine complainants, naming them, were stockholders in said association; the various proceedings of the association and facts showing insolvency; that equity requires that a receiver should be appointed; that the affairs of the association should be wound up, and decreeing that the association transfer and deliver all its assets to a receiver, and appointing a receiver. Afterwards a further decree was made authorizing the Equitable Trust Company as receiver to sell all the assets of the association for $33,000. Under this decree the receiver did execute a deed assigning the assets including the notes and mortgage in controversy to appellee, and an order of court was made approving the action of the receiver. The burden was on the appellants to show a lack of jurisdiction of the Superior Court to make said decrees and orders. A lack of jurisdiction was not shown, and wc conclude that appellee had title to the notes and mortgage sought to be foreclosed.

The record also shows that the Masonic Mutual Savings and Loan Association by its officers and under the seal of the association, by the authority of the board of directors, executed a deed conveying to the Equitable Trust Company all the assets of the association, and that the Equitable Trust Company executed a deed assigning the notes and mortgage in controversy to the appellee.

The remaining questions are, was there usury in the notes and mortgage sought to be foreclosed and has the bond been paid. It is not claimed that there was any usury in the present notes and mortgage sought to be foreclosed, but it is claimed that the original bonds and mortgages were usurious which the notes and mortgage sought to be foreclosed were given in payment of; first, because the secretary of the association, and a sub-agent Bowker, were paid $500 out of the original loan as a commission for procuring the loan; second, because the by-laws of the association under which the loan was made provided, “Every loan of this association shall be made upon a non-negotiable note or bond, bearing interest and premium each at the rate of 6 per cent per annum and secured by first mortgage on real estate, which security shall be satisfactory to the board and shall be accompanied by a transfer and pledge of the shares of the borrower to the association,” the association having no' by-law providing that the preference or priority of the loans shall be decided by the priority of the application for loans by its shareholders. ' D. D. Hunt, who was president of the association when the original loan was made, testified that the priority of awarding loans was determined by the date of filing of the application of borrowers. At the time the original loan was made the appellants, Edward H. Guyer, Charles H. Pope, and Charles E. White, with George W. Walker, were partners in a land and town lot company under the name of the East Moline Company. The correspondence shows that the loan association was directed to issue checks on account of the loan for the following items:

To Henry Curtis......... .........$1,200.00

<( H. C. Connelly........ ......... 702.91

Ci H. L. Velie............ ......... 293.85

ÍÍ C. H. Deere.......... ......... 265.44

U W. J. Entrilcen ......... ......... 200.00

a Oloff Atkinson ........ ......... 2,273.33

u Pope ................ .......... 1,000.00

$5,926.53

The remainder was directed to be paid to E. H. Pope under instructions contained in a letter signed by the four borrowers. On August 28, 1896, C. H. Pope wrote a letter acknowledging the receipt of $4,598.51 “being the balance in full of proceeds of $10,000 loan.” The answer sets up that the association retained out of the loan $100 membership fee; six months dues $300; $35 attorney’s fees; interest on the loan to September 1, 1896, $139.96, and $500 commissions. If checks were drawn as directed and a check given for the receipt of $4,598.31 then the association paid $525.04 more than the amount loaned. If the $1,000 check directed to be drawn by Pope was not drawn and the others were, including one for the sum of $4,598.51, and the items set up in the answer as having been retained -were properly retained, still the company would have paid more than the amount of the loan. The evidence does not show that the association received any part of the $500 claimed to have been paid as a commission for procuring the loan. It does tend to show that Pope, who is the assistant treasurer of Deere & Go. of Moline, and Guyer, who is an attorney and secretary and manager of a Eock Island Loan Association, agreed to pay Hull, who was secretary of the Masonic Mutual Savings and Loan Association and a sub-agent named Bowker, $500, to influence them to make the loan. The proof is mostly confined to what was to he done, except that Guyer and Pope testified that the only money received from the original loan was $8,925.14, hut do not give the items that make up that sum. Gnyer testified that a bonus of $1,074.96 was kept out, and that sum was made up of $500 for commissions and $574.96 for interest, membership fees, dues and attorney’s fees. The evidence is so contradictory that it is not possible for us to determine with any certainty what are the facts as to how much money was advanced on the loan. It is insisted that the sum of $500 claimed to have been paid to Hull and Bowker as commissions, makes the contracts usurious. The association received no part or benefit from such payment and knew nothing of it being made. It was paid apparently as a bribe to procure something that the parties making the payment otherwise would not have received, and naturally would he concealed from the directors of the association. In Chicago Fire Proof Co. v. Park Nat. Bank, 145 Ill., 481, it was held that the fact that a president of a hank entered into an agreement in his individual capacity by which he secured a commission above the legal rate of interest, on a loan by his bank, where the bank has nothing to do with the agreement and receives no part of the money paid by the borrower as commission, did not establish usury on the part of the bank. In Cox v. Massachusetts Mutual Life Ins. Co., 113 Ill., 382, it was held that the fact that an agent, without the authority, consent or knowledge of his principal, upon loaning the money of the latter exacts from the borrower a sum in excess of lawful interest does not make the loan usurious. The same rule is held in Massachusetts M. L. Ins. Co. v. Boggs, 121 Ill., 119; Boylston v. Bain, 90 Ill., 283; Gantzer v. Schmeltz, 206 Ill., 560; Goodwin v. Bishop, 145 Ill., 421; Ballinger v. Bourland, 87 Ill., 513; Phillips v. Roberts, 90 Ill., 492. See also 29 Am. & Eng. Encyc. of Law (2d ed.), 502.

On August 19, 1891, section 1 of article VI of the by-laws was amended by the stockholders, making it read: “Every loan of this association shall be made upon a non-negotiable note or bond, hearing interest and premium each at the rate of six per cent per annum and secured by first mortgage on real estate, which security shall be satisfactory to the board and shall be accompanied by a transfer and pledge of the shares of the borrower to the association. The shares so pledged shall be held by the association as collateral security for the performance of the conditions of said note or bond and mortgage * * * and provided further that all premiums shall be paid in equal monthly installments on or before the 20th day of each and every month during the continuance of the loan.” It is insisted by appellants that in Borrowers, etc., Assn. v. Eklund, 190 Ill., 257, the Supreme Court announced the law to be that, where the by-laws do not provide that the preference or priority of loans shall be determined by the priority of the application of shareholders for loans, the only way loans could be made drawing more than the lawful rate of interest was by competitive bidding in open meeting of the association. A careful reading of the Eklund case does not lay down the rule contended for. The proviso in the statute regarding the level premium plan of loans hy such associations is: “Provided, That any such association may, hy its hy-laws, dispense with the offering of its money at a rate of interest and premium fixed hy its by-laws, and either with or without premium, deciding the preference or priority of loans hy the priority of the applications for loans of its shareholders.” (First proviso of section 85, chapter 32, Hurd’s Stat., 1905.) The by-law is that “every loan of this association shall he made” in accordance with its terms, so that it dispensed with all offering its money for bids as completely and clearly as if those words were in the hy-laws, and it makes every loan “bearing interest and premium each at the rate of 6 per cent per annum.” The statute law enacts that in all such cases the priority or right of loan shall he decided hy priority of application for loans. It is argued hy counsel that without that kind of a provision in the hy-laws, it was in the power of the directors arbitrarily to make the loans to such parties as suited them without any regard to priority of application. The provision of the statute law of the State is clear that on the level premium plan the priority of loans shall he decided hy priority of application. If the statute would not control and govern a board of directors when its provisions are as clear as are the provisions of this statute in that regard, then no law or by-law would control them. If the hoard of directors and officers would disregard a statute as plain in its mandate as this one is, a by-law would not add anything to the statute that would make it more binding. We hold that that part of the statute in reference to priority of loans is self-enforcing and requires no hy-laws to aid it, when the hy-laws fix the rate of interest and premium and thus in effect provide that all loans shall he on the level premium plan. Proof •was made hy the officers of the association that, from the time this by-law was passed to the time the receiver was appointed, all applications for loans were numbered and “priority in awarding loans was determined hy the date of filing the application of the borrower; first come first served.” The bylaw fixed the interest and premium, and the statute fixed the priority of right to a loan, so that all shareholders were upon an equality. The by-law and the statute were followed. The loan was not usurious because there was no by-law reenacting that part of the statute as to the right of priority.

It is insisted by appellant that under the rule laid down in Ryan v. Newcomb, 125 Ill., 91; Puterbaugh v. Farrell, 73 Ill., 213, and Tottle v. Singer, 118 Iowa, 533, the purchase of the interest of Walker by the other three partners, and the participation by them in the claimed usurious profits and earnings of the stock on which the original loan was made in the settlement of the old bonds, and the making of new notes signed by the remaining three partners in such a settlement of the transaction, was such a settlement of the original indebtedness that appellants cannot now set up usury against the new loan, if there was any in the former transaction. Entertaining the views we have expressed, that there was no usury in the original loan, it is unnecessary for us to pass upon this contention. Appellee being the owner of the notes and mortgage, and the same being free from usury the decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Ira M. Cobe, Appellee, v. Edward H. Guyer et al., Appellants.
    Gen. No. 4,906.
    This case is controlled by the decision in Cobe v. Guyer, ante, p. 580.
    Bill in equity. Appeal from the Circuit Court of Rock Island County; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement by the Court. This is a bill in equity filed by Ira M. Cobe in the Circuit Court of Rock Island county to foreclose a mortgage dated September 1, 1899, given by Edward H. Guyer and wife, Constance K. Guyer, to secure a bond of the same date for $10,000 executed by E. H. Guyer, C. H. Pope and C. E. White to the Masonic Mutual Savings and loan Association. The bill alleges that said association was duly incorporated as a building, loan and homestead association under the laws of Illinois, with its principal office in Chicago, Cook county, Illinois, and that it continued to do business until January 29, 1901; that it had a charter and by-laws, a copy of which is attached and made a part of the bill; that on September 1, 1899, Guyer, Pope and White, being the owners of 100 shares of stock of said association, and being indebted to it for $10,000 for money at that time loaned to them by the association under its by-laws, executed and delivered to the association a bond in which they promised to pay said association $50 as monthly installments upon its shares of stock, and $58.34 monthly interest at I per cent upon said sum, until the principal loan with interest be paid in accordance with the charter and by-laws of said stock having reached par value. A copy of the bond is attached and is as follows:
    “Know all men by these presents, That Edward H. Guyer, Charles H. Pope and Charles E. White, members of the obligee herein, all in the County of Rock Island and State of Illinois, do hereby acknowledge ourselves to be indebted to the Masonic Mutual Savings and Loan Association, a corporation duly organized and existing under and by virtue of the laws of the State of Illinois, in the principal sum of Ten Thousand Dollars ($10,000.00) for money borrowed under the charter and by-laws of said association on one hundred shares of the capital stock of said association issued to said Edward II. Guyer, Charles H. Pope and Charles E. White, in consideration whereof we do hereby hind ourselves * * * jointly and severally to pay to-said association, its successors or assigns, the sum of fifty dollars each month as monthly dues upon said shares ofsfoek, and also the sum of fifty-eight and 34/100 dollars as interest upon said sum of ten thousand dollars, all and each on or before the first day of each and every month from and after the date hereof in advance until the said principal sum shall have been paid in full in accordance with the charter and by-laws of said association by said shares of stock before mentioned having reached their par value,” etc.
    The bill also alleges that the 100 shares of stock were transferred to the association as collateral security, and that Edward H. Guyer and Constance K. Guyer, his wife, on September 1, 1899, made a mortgage to secure said bond, and contains the usual allegations of a bill of foreclosure. It'is further alleged that on January 29, 1901, Joseph C. Carry and eight other shareholders of the association, filed a bill of complaint in the Superior Court of Cook county on behalf of themselves and others against the association, alleging its insolvency, praying for a receiver, etc.; that the Equitable Trust Company was appointed receiver; that the receiver qualified; that the association was decreed to be insolvent and its assets placed in the hands of the receiver; that the court decreed that said association be wound up; that the receiver was directed to sell the assets of said association, and that the bond and mortgage were sold to complainant and that there now remains due $5,708.39 with interest thereon at 5 per cent since date of insolvency.
    The defendants in their answer deny that the association was duly incorporated under the laws of Illinois as a homestead and loan association, and charge that the organization was a fraud and an unlawful attempt to collect usurious interest, and assert that the defendants did not make the loan alleged in the bill for building and improving homesteads, “but it was in truth and in fact a loan solely for the purpose of speculating” in real estate; they admit they applied for a loan of $10,000 and subscribed for 100 shares of stock, and that they agreed to pay $50 each month as dues and $58.34 as interest each month, and made the bond and mortgage, but say they only received $9,556 on the loan; they say that the money was not offered in open meeting to stockholders who should bid the highest premium for priority of a loan, and that there was no by-law to dispense with the bids in open meeting, the preference to he decided by priority of application, and assert the difference between the bond of $10,000 and the $9,556 received was a bonus for the loan, and that the said difference, $443.89, and $58.34 agreed interest and $50 per month dues on said $10,000 exceed the rate of 7 per cent per year for the forbearance of $100 and is usury, and that the agreement for interest is void; they also assert that they have repaid $7,000 of the sum borrowed. The answer sets up a provision in the bond, that when twelve or more stock payments should be made they should be deducted from the loan, and allege that it makes the transaction usurious per se, and that this provision is a device to collect usurious interest. The answer denies that there was default for six months in the payment of interest, and denies any knowledge of the suit begun by Carry and others against the association and denies that the Superior Court of Cook county had any jurisdiction in the matter, and asserts that such proceedings are void and denies that complainant has any right in said bond and mortgage. A replication was filed to the answer and the cause referred to the master to take the evidence and report the same with his conclusions. After a re-reference the master finally reported the evidence, with his conclusions that the defendants were on September 1, 1899, indebted to the Masonic Mutual Savings and Loan Association, a corporation duly organized under the laws of Illinois, in the sum of $10,000 for money borrowed under the charter and bylaws of the association on one hundred shares of the capital stock of said association, and that they had executed the bond and mortgage as alleged in the bill; that payments had been made amounting to $6,311.40; that by decree dated January 29, 1901, said association was directed to be liquidated and wound up; and that on January 10, 1903, the Equitable Trust Company, as receiver of said association, in pursuance of a decree of the Superior Court of Cook county made on Uovember 21, 1902, in the case of Carry et al. against the Masonic Mutual Savings and Loan Association, by its deed of assignment, transferred the bond and mortgage sought to be foreclosed to Ira M. Gobe; that on account of the insolvency of said association and the various orders and decrees of said Superior Court the whole of the principal sum so advanced to defendants, after deducting the whole amount paid, had become due and that there is due to complainant from defendants as follows:
    On December 17, 1903.......................$5071.12
    Interest from Dec. 17, 1903, to Kov., 1906....... 728.96
    Solicitor’s fees.............................. 300.00
    Total debt, interest and solicitor’s fees..........$6100.08
    Exceptions to the master’s report were overruled and a decree approving the report and of foreclosure made. Erom that decree the defendants appeal.
    J. T. Kenworthy and S. E. Kenworthy, for appellants.
    S. W. Swabey, for appellee; W. E. Moore, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellants by their answer insist that they only received $9,556 out of the $10,000 loan, and that the difference, $143.89, was retained by the association as a bonus for the loan and is usury, as the bond called for 7 per cent interest. The correspondence introduced in evidence shows that the appellants directed the money to be paid out as follows:

Membership fee.................... $25.00

Attorney’s fee..................... 10.00

Abstract continuation and recording fee Six months’ stock dues............. 300.00

Interest, Sept.................'..... 38.89

To E. L. Vielie.................... 1022.00

Annette G. Kimball............... 2991.33

Eudolph Weyerhauser.......... 882.50

O. H. Deere....................... . 769.86

Connolly .................... 1895.57

C. H. Pope....................... 2064.85

$10,000.00

The evidence does not show but what it was so paid out by the association, although there was some delay in getting the loan closed because of delay of appellants in securing some releases. The deduction of the attorney’s fee for examination of the record does not constitute usury (Ammondson v. Ryan, 111 Ill., 506), neither is the payment of dues on stock in advance illegal. Lurton v. Jacksonville Assn., 187 Ill., 141. The burden of proving usury is on the party alleging it, and unless the proof shows that money was retained for the purpose of exacting a greater compensation than, the law allows for the purpose of collecting illegal interest it is not usury. The proof concerning the payment of the money by the association does not justify the charge of usury.

There are two other questions raised by appellees in this suit, first, the right of appellee Cobe to maintain the action is questioned, and second it is claimed that the bond secured by the mortgage sought to be foreclosed is usurious because of the nature of the by-laws of the association when the loan was made. The record shows the same state of facts in this case regarding the ownership of the claim by appellee as in the case of Guyer et al. v. Cobe, ante, p. 580, and what is there said is conclusive in this case as to Cobc’s right to maintain this action. Upon the second question, the only difference between this case and the preceding case is, that since the making of the loan in the former suit and before the making of this loan the by-laws of the association were again amended by abolishing all premiums and making the rate of interest 7 per cent. What was said by this court in case number 4905 (ante, p. 580), upon the question of the by-laws is applicable to this case. The decision of this court in the former case being decisive of the questions raised in this case, the decree is affirmed.

Affirmed.


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    Paul Kerz, Appellee, v. Galena Water Company, Appellant.
    Gen. No. 4,909.
    1. Appeals and errors—when must be taken from order refusing to dissolve injunction. An appeal from an order refusing to dissolve an injunction must be taken within thirty days and perfected within sixty days from the entry of the order.
    2. Injunction—when may be granted without bond. It is within the discretion of the court to grant an injunction without bond in a case where the public interest is involved.
    3. Injunction—when granting of, without bond, cannot be complained of. After a hearing on the merits in which an injunction is made permanent, a party cannot be heard to complain that the temporary injunction was issued without notice and without bond.
    4. Franchise—how ordinance granting, construed. In construing a franchise ordinance, the courts will give effect to the interpretation placed thereon by the party to whom the franchise was granted where such interpretation is contrary to the contention of such party in the particular case under consideration.
    5. Corporations—duty of quasi-public. Public service corporations must not discriminate; they should accord to every individual entitled to its service equal rights and privileges.
    Bill in chancery. Appeal from the Circuit Court of Jo Daviess County; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed in part, reversed in part and remanded, with directions.
    Opinion filed March 11, 1908.
    Statement by the Court. This is a bill in chancery brought by Paul Kerz against the Galena Water Company on April 29, 1902, to restrain the defendant from shutting off the water supply to complainant’s residence in the city of Galena. The bill alleges that complainant is a resident taxpayer and property owner in the city of Galena and interested in the proper enforcement of any contract or franchise for the supply of water for public or private use; that on August 3, 1886, said city passed an ordinance authorizing the construction and operation of waterworks by Henry S. Raymond or assigns for a supply of water for public and private use; that section 10 of said ordinance is as follows;

      “Sec. 10. The said Henry S. Raymond, or assigns shall not charge to customers during the existence of the franchise granted by this ordinance exceeding the following maximum annual bates. But he shall have the right at his will, at any time to insert a water meter into the service pipe of any customer, and to supply him at meter rates. The connection between the mains and the consumer shall be made at the expense of the consumer, and the lowest annual rates in any case shall be $5.00.
    ANNUAL RATES.
    Banks, one self-closing faucet. ................. $8.00
    Banks, one self-closing faucet with hose connections and one wash basin................... 10.00
    Bakeries, daily average of each barrel of flour used, per bl. per annum. ......................... 3.50
    Barber shops, one chair and basin. ............. 1.50”
    (Here follow fifty-seven other items ranging in price from two cents to forty dollars.)
    “METEB KATES.
    100 to 1000 gallons per day, at rate of 1000 gallons $0.50
    1000 to 2000 gallons per day, at rate of 1000 gallons. . 0.40”
    (Here follow five other items reducing prices according to quantity from 35 to 15 cents.) The bill further alleges that in pursuance of said franchise a waterworks system was constructed, operated and maintained, and water was supplied to the city and its inhabitants until this day by defendant ; that one William R. Holder is at present and for some years past has been manager for the defendant and makes all contracts with consumers and collects charges; that in April, 1901, complainant fitted his residence with water fixtures and a water meter at his own expense and had the same connected with the service pipe of defendant in such a way that every gallon of water used by complainant was registered; that appellee began to use water May 8, 1901, and on September 27th Holder presented a bill for $2.75 for 5,520 gallons of water used by complainant, being at the rate of fifty cents per 1,000 gallons, which bill was there paid; that on January 1, 1902, defendant presented a bill for $3 for 2,770 gallons of water used; that complainant tendered $1.38 to defendant, being pay at the rate of fifty cents per 1,000 gallons consumed, which payment defendant refused to accept; that defendant claimed and insisted that the minimum annual rate through a meter is $12 per year or $3 for three months; that on April 9, 1902, defendant again presented a bill for $3 for three months although complainant had only used 3,712 gallons for which defendant was entitled to $1.86 when the water was charged for at the ordinance rate of fifty cents per 1,000 gallons; that complainant has continued to use water and tender pay at the rate of fifty cents per 1,000 gallons, and defendant insists upon payment at the rate of $3 every three months as the minimum rate regardless of the small quantity of water used; that complainant has tendered to defendant the sum due for water as registered by the meter at the rate of fifty cents per 1,000 gallons, with the sum of forty-two cents, the minimum monthly ordinance rate, in advance, but the defendant refuses to accept the same and has notified complainant that after April 30, 1902, it will refuse to furnish any water to him unless he shall pay at the rate of $12 per annum; that defendant in attempting to collect $12 as the minimum annual rate is violating section 10 of said ordinance and is arbitrarily and unjustly refusing to furnish water at the rate provided by the said ordinance, and is discriminating between complainant and other consumers who are using water through a meter under like conditions with complainant. The bill prays for an injunction restraining defendant and its agents from shutting off the water supply from complainant’s premises, and that said injunction be issued without notice, for the reason that if notice is given to defendant it would cut off the supply of water at once. There being no circuit judge in the county a temporary injunction was issued by the master in chancery, the order being that the injunction be issued without bond. Thereafter a supplemental bill was filed setting up an ordinance passed by said city May 1, 1902. At the February term, 1906, a second supplemental bill was filed setting forth that the defendant had filed a bill in chancery in the Federal Court and obtained a temporary injunction restraining the enforcement of the ordinance of May 1, 1902. At the May term, 1902, a motion was made by the defendant to dissolve the temporary injunction and dismiss the bill. On February 28, 1906, the motion to dissolve the temporary injunction was overruled. Ho appeal was taken from the order overruling the motion to dissolve the injunction. The defendant answered the bill, and the cause was referred to the master to take the evidence. The final decree entered June 22, 1907, recites that the cause was heard on the bill, answer, replication and report of the master, and makes the temporary injunction permanent and approves a bond of the complainant that day filed. The defendant appeals from the final decree.
    Siieean & Siieean, for appellant.
    Jones & Kebz, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

It is first insisted that there was error in refusing to dissolve the temporary injunction and dismiss the bill for the reason the injunction was issued without notice and without-bond. E"o appeal was taken from the order overruling the motion to dissolve the injunction. An appeal from an order refusing to dissolve an injunction must- be taken within" thirty days and perfected within sixty days from the entry of the order. Hurd’s Statutes, 1905, page 234, section 52. The bill was sworn to and set forth a good cause for issuing the temporary injunction without notice. If notice of the application had been served the appellant might have shut off appellee’s water supply and accelerated the mischief the injunction was intended to prevent.' The first sentence in appellant’s argument is “The importance of the question involved in this case is not measured by the amount of money in controversy between appellant and appellee, but in the right to charge all consumers of water through a meter a sum not less than $12 per annum.”

It is within the discretion of the court to grant an injunction without bond in a case where the public interest is involved, as it is in this case, but there should have been some showing in that regard before the injunction was granted. Kohlsaat v. Crate, 144 Ill., 14. The appellant cannot be heard to complain that the temporary injunction was issued without notice and without bond, after a hearing on the merits in which the injunction is made permanent. Brown v. Leuhrs, 79 Ill., 576; O’Kane v. West End Dry Goods Co., 72 Ill. App., 297.

The meritorious question involved is what rate did the appellant have the right to charge water consumers for water supplied through a meter. The contention of appellee is that the highest rate appellant might charge is at the rate of fifty cents per 1,000 gallons of water used, the annual charge however to be not less than $5 per annum to any consumer, while on the other hand the appellant insists it had a right to require every customer to have a meter and that every customer having a meter must pay for not less than 100 gallons per day at the rate of fifty cents per 1,000 gallons if the customer did not use to exceed 1,000 gallons per day. The ordinance under which appellant is supplying the citizens of Galena with water provides, that the said Henry S. ¡Raymond shall not charge to customers during the existence of the franchise exceeding certain fixed maximum annual rates, but he shall have the right at his will at any time to insert a water meter into the service pipe of any customer and to supply him at meter rates, and the lowest annual rate in any case shall be $5. There is a tabulated scale of rates for about sixty different occupations varying from $60 for a fountain with an “ orifice five-sixteenths of an inch” down to “making mortar and wetting brick per 1,000” two cents. This table of annual rates is followed by “Meter Bates 100 to 1,000 gallons per day at rate of 1,000 gallons, $0.50,” with other rates, the price decreasing with the amount used.

The maximum price allowed to be charged for meter rates is fifty cents per 1,000 gallons. No price is fixed for meter rates where less than 100 gallons per day is used. The ordinance concerning rates contains the provision: “But lie (appellant) shall have the right at any time to insert a meter into the service pipe of any customer and to supply him at meter rates.”

Appellant insists that it has the right to charge every person in -whose service pipe there is a meter with the use of 100 gallons per day whether that much or only a single gallon is used. If that is the correct construction to be placed on the ordinance, then appellant having the right to order the insertion of a meter in the service pipe of any customer, which insertion, under the rules of appellant, is made at the expense of the customer, has the right to charge every customer with 36,500 gallons per annum at the rate of fifty cents per 100 gallons, or an annual charge of $18.25 per annum, no matter how little water the customer may use. Such a construction is not a reasonable one, when the entire rate section is considered together. “It is the duty of a court in construing a contract to discover and give effect to the intention of the parties where it is practicable to do so, so that the performance of the contract may be enforced according to the sense in which it was mutually understood at the time it was made, and greater regard should be paid to the clear intent when ascertained than to any particular words which may have been used in the expression of that intent.” Field v. Leiter, 118 Ill., 26; Massie v. Belford, 68 Ill., 290; Richmond v. Brandt, 118 Ill. App., 624; Elzas v. Elzas, 72 Ill. App., 94; Whalen v. Stephens, 92 Ill. App., 235. “Where the terms of a contract are uncertain and the parties by their conduct have placed a reasonable construction thereon, such construction will be adopted by the court, and in seeking the intention of the parties to the written contract regard will be had to any practical construction which the parties by their acts .have put upon it.” Whalen v. Stephens, 193 Ill., 121; Mueller v. Northwestern University, 195 Ill., 236; Carroll v. Drury, 170 Ill., 571; Jamieson v. Wallace, 167 Ill., 388; Windmiller v. People, 78 Ill. App., 273.

“Courts, in construing or interpreting a statute, give much weight to the interpretation put upon it at the time of its enactment and since by those whose duty it has been to construe, execute and apply it.” Bruce v. Schuyler, 4 Gilm., 221; Bunn v. People ex rel., 45 Ill., 396; People ex rel. v. Loewenthal, 93 Ill., 191; Nye v. Foreman, 215 Ill., 285; Cook County v. Healy, 222 Ill., 310; Brennan v. U. S., 136 Fed. R., 743; Cooley’s Const. Lim., 82 (citing Stuart v. Laird, 1 Cranch, 299); 26 Am. & Eng. Ency. of Law (2d ed.), 633.

It appears from the record that the appellant is a corporation and is supplying the citizens of Galena with water under the ordinance giving that right to Iiaymond and assigns. It is a public service corporation using the streets of the city of Galena in the performance of a business public in its nature and ujDon which a public interest is impressed. “It is well settled that parties who carry on a business which is public in its nature must serve all who apply on equal terms and at reasonable rates.” City of Danville v. Danville Water Co., 178 Ill., 299; Wagner v. City of Rock Island, 146 Ill., 139 ; Munn v. People, 69 Ill., 80; Munn v. Illinois, 94 U. S., 113; 29 Am. & Eng. Encyc. of Law (2d ed.), 12. A corporation existing by the grant of public franchises and supplying the great conveniences and necessities of modern city life, as vrater, gas, electric light, street cars and the like, is doing a business affected with a public interest, and while it is not bound to treat all its patrons with absolute equity it must treat all fairly and without unjust discrimination. “The law will not and cannot tolerate discrimination in the charges of these guasi-public corporations. There must be equality of rights to all and special privileges to none.” Inter-Ocean Co. v. Associated Press, 184 Ill., 438; Stock Exchange v. Board of Trade, 127 Ill., 153; People v. Suburban R. R. Co., 178 Ill., 594; Snell v. Clinton Electric Light Co., 196 Ill., 626; Cincinnati, Hamilton & Dayton R. R. Co. v. Village of Bowling Green, 49 N. E. R., 121; Griffin v. Goldsboro Water Co., 122 N. C., 206; Owensboro Gaslight Co. v. Hildebrand, 42 S. W. R., 351.

Substantially ever since the grant of this right to Raymond, when a meter was installed in a customer’s service pipe, the appellant has only charged for the water actually used at the rate of fifty cents per 1,000 gallons, even where the customer used less than 100 gallons per day. This is a construction of the meaning of the ordinance which must be held binding’ on the appellant. The appellee alleges that he offered to pay for all the water he used at the meter rate and to pay such sum at least as would make up the minimum sum of $5 per year. This is the reasonable construction of the ordinance, and is a more favorable construction for appellant than appellant had placed upon it with other customers. The Circuit Court correctly held that appellant was bound by its own construction of the ordinance ; that a consumer of water through a meter could not be made to pay for 100 gallons per day if he did not use that quantity, but could only be compelled to pay the minimum charge of $5 per annum, unless he used more than that amount when charged at the rate of fifty cents per 1,000 gallons.

The decree however is too broad. It restrains the appellant from turning off the water from appellee’s residence or doing or performing any other acts which would unduly prejudice the rights of appellee. The court below is directed to so modify the decree as to enjoin appellant from turning off the water from appellee’s residence so long as he pays at the rate of fifty cents per 1,000 gallons for the water he uses, paying not less than $5 per year, payments to .be made at such times as the ordinance or general rules of the company may prescribe, and so long as he shall comply with all other reasonable rules and regulations of the appellant, and so long as said ordinance remains in force.

Affirmed in part, reversed in part and remanded -with directions.


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    Mary Perry, Appellee, v. City of Oregon, Appellant.
    Gen. No. 4,912.
    Damnum absque injuria—when city not liable for destruction of private property. Where city officials destroy private property in the interests of the public health and to prevent the spread of contagion, no liability arises against the city.
    Trespass. Appeal from the Circuit Court of Ogle County; the Hon. Richard S. Fabrand, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed March 11, 1908.
    W. J. Emerson and Feed B. Silsbee, for appellant.
    Feanc Bacon, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action of trespass begun in the Circuit Court of Ogle county against the city of Oregon. The declaration alleges that the defendant with force and arms broke and entered the dwelling house of the plaintiff and took, carried away and converted to its own use divers goods and chattels of the plaintiff. A plea of the genéral issue and special pleas were filed but afterwards it was stipulated that any and all the defenses that might properly be presented under any special plea might be interposed under the general issue. At the close of all the evidence the defendant offered a peremptory instruction directing a verdict for the defendant, which was refused. A verdict for $140 was returned in favor of plaintiff. Motions for a new trial and in arrest of judgment were interposed and overruled. Judgment was rendered on the verdict and the city of Oregon appeals to this court. '

It appears from the record that in the spring of 1905 smallpox, a contagious disease, was prevalent in the city of Oregon. Dr. H. H. Sheets was employed and paid by the city to care for persons afflicted with that disease. Mary Perry, the appellee, was taken with the disease and was attended through her affliction in her own home by the physician employed by the city. Afterwards, when the appellee was convalescent, the city physician consulted with the mayor of the city as to what he should do towards disinfecting the property and premises of appellee, and was told by the mayor “that he should do whatever the sanitary laws and scientific rules indicated as a proper thing to do in such cases.” The physician, with the assistance of the husband and son of appellee, proceeded to disinfect the property, and in so doing found it necessary to destroy some of the wearing apparel, carpets, bedding and other household goods belonging to appellee. The proof shows that the property destroyed could not be disinfected and that the only safe way to prevent the spread of the disease was to burn the articles destroyed, and that this was done in accordance with the recommendation of the State Board of Health.

The city officials in disinfecting or burning the property of the appellee were not acting in the interest of the city in its private or administrative capacity, but in the interest of the public in its police or governmental capacity. It is well settled that a city is not liable for the acts of its officers in attempting to enforce police regulations. “Police regulations, it has frequently been said, include the making and enforcement of all such laws, ordinances and regulations as pertain to the comfort, safety, health, convenience, good order and welfare of the public, and that all persons officially charged with the execution and enforcement of such police ordinances and regulations are, quod hoc, police officers.” “Where acts are done by the officers of towns and cities in their public capacity in the discharge of duties imposed by the laws for the public benefit and for the promotion and preservation of the public welfare, no private action lies unless the right to bring it is expressly conferred.” Evans v. City of Kankakee, 231 Ill., 223, same case 132 Ill. App., 488, and cases cited; Chicago v. Williams, 182 Ill., 135; Tollefson v. City of Ottawa, 228 Ill., 135, 129 Ill. App., 139. The appellant is not liable for the acts of its officers under the facts proven in this case. The jury should have been instructed to find a verdict for the defendant. - The judgment is reversed.

Reversed.


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    First National Bank of El Paso, Appellant, v. M. L. Miller et al., Appellees.
    Gen. No. 4,920.
    1. Appeals and errors—when propriety of appeal not considered. In this case the action was in assumpsit, against several defendants, one of whom was in default; that no judgment was taken against such defendant in default and the jury passed only on the issues between the plaintiff and the defendant appearing. This irregularity in proceeding was not called to the attention of the Appellate Court, and it is held that the parties having tried the cause as if it had been severed by first entering judgment against the defendant in default, the propriety of the appeal will be ignored on review.
    2. Practice—right of cross-examination upon assessment of damages. A defendant in default has the right to cross-examine witnesses on the question of the amount of the damages but has no right to cross-examine with respect to matters which go to the merits of the action.
    3. Practice—effect of failure to complete issue. Where the parties go to trial without formally joining issue, the irregularity is cured by verdict.
    4. Negotiable instruments—when not error to exclude proof as to protest fees. Protest fees can only be recovered where the suit on the note is sustained and it is not error to have excluded evidence thereof where the note in question was held void.
    5. Contracts—what not competent to establish invalidity as in violation of gambling statutes. It is not competent to show transactions in grain are in violation of the gambling acts by showing the intention of one of the parties thereto. In order to establish the invalidity of a transaction with respect to grain, it must appear that there is a mutual intention on the part of the buyer and seller that the grain is not to be received or delivered.
    6. Contracts—when void as against gambling statutes. Held, that the evidence in this case clearly showed that transactions in grain in question were in violation of the gambling acts and that the note in suit given in connection with such transaction was void.
    7. Evidence—what competent to show validity of note. A letter written by the maker of a note in suit claimed to be void as in violation of the gambling acts, which states that such notes are “all right,” is competent. Held, in this case, that the exclusion of such letter was harmless error.
    Assumpsit. Appeal from the Circuit Court of Livingston County; the Hon. George W. Pattox, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement by the Court. This is an action of assumpsit brought July 16, 1906, in the Circuit Court of Livingston county by the First Mationel Bank of El Paso against M. L. Miller and H. B. McGregor, upon a promissory note dated March 9, 1905, for $1,000 payable to the order of H. B. McGregor, six months after date, with 5 per cent interest. The note is signed by M. L. Miller and was indorsed by McGregor to the bank before maturity. The declaration declares specially upon the indorsed note and also contains the common counts. The defendant Miller filed a plea of the general issue and special pleas alleging in various forms that the consideration for the note was moneys lost in illegal speculations and gambling on the market price of grain, options to buy and sell grain at a future time, puts and calls, and margins for differences, etc. A replication was filed traversing the special pleas. After issue was joined the defendant Miller by leave of court withdrew the general issue; McGregor having failed to plead an order of default was properly entered against him. A jury was sworn to “try the issues herein joined.” On the second day of the trial, on the coming in of the court after the noon recess, counsel for the bank asked that F. G. White be admitted as counsel with him to assist in the trial. Counsel for Miller objected and “the court sustained the objection for the reason that during the time the jury was being examined as to their competency by Mr. Morton, Mr. Mcllduff wanted to know whether Judge White was to be counsel in the case and thereupon Judge White who was sitting inside the bar said, “No, I am not in the case.” The court stated to appellant’s counsel that if he was physically unable to proceed with the case he would adjourn until morning. The jury returned a verdict, “We the find the issues for the defendant Miller.” A motion for a new trial was overruled and judgment rendered, “that said defendant Miller do have and recover of and from said plaintiff his costs and charges.” The plaintiff prosecutes this appeal from that judgment. Ho judgment was rendered for or against McGregor, and the bill of exceptions certifies none was ever asked for.
    A. C. Horton, for appellant.
    Thomas Kennedy, John F. Bosworth & MoIldttef & Thompson, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The judgment appealed from is a judgment in favor of Miller against the appellant for costs. The appellant as assignee of a note brought the suit against the maker and indorser of a promissory note jointly under the negotiable instrument act as amended in 1895 (Hurd’s Stat., 1905, pages 1408-9) which authorizes all or any number of the parties liable on a promissory note either as makers or indorsers to be sued in one action. Section 76 of that act provides: “In any suit mentioned in the preceding section a separate judgment may be entered by default against any defendant or defendants severally liable who have been served with summons, and against whom the plaintiff would be entitled to judgment had the suit been against such defendant or defendants only. The suit shall thereby be severed and shall proceed to trial against the other party or parties in the same manner as if it had been commenced against such other party or parties only, and if the plaintiff recover judgment shall be entered against such one or more of the defendants as arc found liable to him, but in no event shall the plaintiff be entitled to more than one satisfaction.” Before this act, judgment could only be rendered at the same time against the defendants liable, and the judgment had to be against all the defendants served with process, except such as might make a personal defense, such as infancy, bankruptcy, etc., in a suit in assumpsit begun in a court of record. Appellant did not take judgment against McGregor, as it might have done and thereby have severed the suit as against the two defendants and then have proceeded to trial against Miller. The jury was sworn to try the issues joined. They passed only on the issues between appellant and Miller, and the court only rendered a judgment between appellant and Miller. Judgment not having been entered against McGregor the jury should have been sworn to try the issues joined and to assess the damages against McGregor. McDonald v. Fairbanks, Morse & Co., 161 Ill., 124. The parties however tried the case the same as if it had been severed by first entering judgment against the defaulting defendant, and have raised no question as to the propriety of this appeal.

It is insisted that the court erred in refusing to permit McGregor to cross-examine the witnesses. The only question tried was whether or not the affirmative pleas, that the note was given for losses incurred in illegal speculation in gambling on the market price of grain without any intention of either buying or selling any actual grain, were true. No evidence was offered on any other question. McGregor having been defaulted had the right to cross-examine on the question of the amount of damages but did not have the right to- cross-examine the witnesses who testified only to matters in support of the pleas. Foreman Shoe Company v. F. M. Lewis & Co., 191 Ill., 155; Cook v. Skelton, 20 Ill., 107. No evidence was offered in reduction of the amount due on the note, hence there was no evidence that it was proper for him to cross-examine upon, and there is no judgment against McGregor, hence he is not injured by the refusal of lu£ request to assist the plaintiff.

It is also assigned for error that the court improperly refused to allow the plaintiff to prove the protest fees. It is necessary to protest a note to hold the indorser, and the fees were properly recoverable in this suit under the common counts, provided there was a recovery on the note. If there was no liability against Miller on the note, then there could not be a liability against him for the costs of protest. The jury having found the note void, there was no reversible error in excluding that evidence.

The proof shows that McGregor, who resided at Pontiac, came to El Paso and opened an office in an upper back room in a building known as the Hendron Block. In the room he had a few chairs and benches, a telephone, a telegraph instrument with an operator, and a blackboard on which were put market quotations on stocks and grains. He had no elevator or scales. He circulated cards representing himself as. the manager of “The Corn Belt Commission Co., correspondents of the Hammond Elevator Co., of Hammond, Ind.” “I bid for Indianapolis Grain Co., Indianapolis, Ind., and Thos. S. Clark & Sons, Baltimore, Md.” Miller is a farmer living in El Paso. McGregor who was a stranger to Miller, met the latter on the street, told him he was doing a commission business and solicited him to come and do some business with him. Miller testified that McGregor told him no person should know what he was doing, it was to be strictly confidential and should not be known about town; that he was given number “27” so that if any person should get hold of McGregor’s books or papers Miller would not be known as connected with the business; that he could buy or sell grain on margins, carry it as long as he wanted to and then dispose of it and settle the difference whichever way it was, gain or loss; that the grain was not expected to -be delivered. McGregor denies some of these statements, but the proof shows by Miller and several others, some of whom transacted their business by a number instead of their own name, that that was the way the business was actually done. Blank forms of orders to the Corn Belt Commission Co. were offered in evidence by appellant, and other, orders were offered by the appellee, some of which are signed “27” and others “M. L. Miller per Mc.” These orders all had printed on them “Actual delivery contemplated.” The first deal Miller had with McGregor was December 7, 1901, and the last May 15, 1905. Two deals were closed out soon after Miller went into this business, in which Miller had a profit of $65.63; he received no money, but was given credit for it by McGregor. Notes tvere given at different times by Miller to keep np bis margins. On March 9, 1905, the note sued on was given to take up a number of other notes. At that time Miller was carrying 14 deals of 10,000 bushels of grain each, amounting to between $75,000 and $100,000.

The court permitted Miller to testify that he had no intention of receiving or delivering grain. Appellant insists this was error. Miller testified to the conversations, in addition to his intentions. Miller’s intentions alone would not render the transactions illegal. In order to bring purchases and sales for the future delivery of grain within the provisions of the statute regarding gambling in grain and gaming contracts, there must be a mutual intention on the part of the buyer and seller that the grain is not to be received or delivered; such intention may be established by the assertion of the parties. Pratt & Co. v. Ashmore, 224 Ill., 587; Staninger v. Tabor, 103 Ill. App., 330.

Error is assigned upon the admission of the testimony of third parties who did business with McGregor while Miller was doing business with him. In Gardner v. Meeker, 169 Ill., 40, where the issue was the same as in this suit, it was held that evidence of a chain of similar transactions between the parties, covering a period of three months after the giving of the note sued on, is relevant and competent; also that evidence of prior transactions is relevant. The evidence of Miller in his own behalf and McGregor for the appellant was in direct conflict as to the character of the business which resulted in the giving of the note. It may be true that this evidence of transactions by third parties was immaterial. It was evidence res inter alios acía and tended to raise collateral issues. In Carroll v. Holmes, 24 Ill. App., 453, and Jamieson v. Wallace, 167 Ill., 388, such evidence was held to be “wholly immaterial or merely a circumstance of corroboration.” In Staninger v. Tabor, 103 Ill. App., 330, it was held, that the gambling intention may be proved not only by the assertions of the parties “but by all the attending circumstances, which may include similar transactions made with other persons at the same time and place.” The intent of the maker and payee of the note in the transactions out of which it arose-was the gist, of this controversy. In such a case evidence of other acts of a similar nature are admissible to show the intent. Standard Manufacturing Co. v. Brons, 118 Ill. App., 632, and cases cited therein. We hold the evidence was proper in the discretion of the trial court in corroboration of appellee.

It is also argued that after Miller had testified that the note was given for a gambling consideration the court refused to permit appellant to show by Stitt, cashier of appellant, that Miller told him it was given for money loaned. This is an error of counsel; the question asked Stitt in the record was what McGregor told appellant when it bought the note.

A letter written by Miller to A. C. Morton on April 27, 1905, in which he said, “I have given some notes to H. B. McGregor for value received and in case he should offer any of them to you, you can safely accept them; they are all right,” was offered in evidence by appellant and objection sustained. It should have been admitted. It was offered to contradict Miller, and as an admission that the note was all right. From all the evidence, both that offered by appellant as well as that of appellee, in connection with the facts and circumstances surrounding the transaction, and the extraordinary care taken to impress upon the business the appearance of legitimate transactions, it clearly appears that the deals between Miller and McGregor were all speculations on the market price of grain, without any intention on the part of either party to deliver or receive any commodity or to pay anything therefor except the margins. The exclusion of this evidence was not reversible error, for the reason that its admission could not have changed the result. Hill v. Parsons, 110 Ill., 107; Root v. Curtis, 38 Ill., 192; Goddard v. Enzler, 123 Ill. App., 108.

There are a number of minor criticisms argued by appellant which we have examined, and do not find them of. sufficient importance to review at length, as they are not sustained. The most important of these minor matters is that counsel for the appellant requested the court to give an instruction directing a verdict for the plaintiff at the close of all the evidence. lie now claims he was entitled to a verdict on the common counts because there was no formal plea to them. The law is that if parties go to trial without formally joining issue the irregularity will be cured by the verdict. Brazzle v. Usher, Beecher’s Breese, 35; Graham v. Dixon, 3 Scam., 115; Supreme Court of Honor v. Barker, 96 Ill. App., 490.

Error is assigned upon the modification of some instructions and the refusal of others. The seventeenth refused is based on the claim that at the time the note was given, “there was in the hands of Miller $65.63 which he had won from McGregor in a gambling deal, then even though you believe from the evidence that the note in suit was given for an illegal consideration,” the jury should find that sum for plaintiff. The first difficulty with the instruction is that there is no evidence to base it upon, except the fact that Miller had won that much on his first two deals. It was not paid to him, but only placed to his credit long before the note was given and then lost on succeeding deals. The second is, it had nothing to do with the note. The only recovery there could be in this case was upon the note or upon a joint liability of McGregor and Miller to the bank. Th<common law is still in force in that regard. There is no statute in this State other than the negotiable instrument act-permitting a recovery against one defendant alone in a suit in assumpsit where the action is against two defendants in a court of record, where both defendants are served with process. Griffith v. Furry, 30 Ill., 251; Powell Co. v. Finn, 198 Ill., 567; Black on Judgments, section 120. The bank had no connection with or interest in the $65.63; that was a matter between Miller and McGregor. The instruction was properly refused. We find no error in the refusal of any instructions, for the reason that the jury were fully and properly instructed on every proposition of law involved in the case. What was proper in the refused instructions was contained in the given instructions, and instructions should not be repeated. Some of the refused instructions were properly refused for the reason that they were not applicable to the ease. Finding no reversible error the judgment is affirmed.

Affirmed.


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    Gertrude Brown et al., Appellees, v. Phoebe Saathoff et al., Appellants.
    Gen. No. 4,921.

      Wills—when debts payable from particular fund. If from the whole will, either by express language or from necessary implication, it appears that a particular portion of the estate is to be the primary fund for the payment of debts, the remainder of the estate will be exonerated from that burden.
    Bill in chancery. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed in part, reversed in part and remanded.
    Opinion filed March 11, 1908.
    A. 0. Horton, for appellants.
    C. C. & L. F. Steawn, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

This is a bill in chancery filed in the Circuit Court of Livingston county for the partition of real estate owned by George Franks at the time of his death. George Franks died December 21, 1895, leaving a last will and codicil. The will was made June 12, 1894, and the codicil January 16, 1895. The codicil is not material to the questions involved in the case. The provisions of the will are:

“First. I will and desire that all my just debts be paid at my death, including funeral and burial expenses.

“Second. I will and devise to my beloved wife the use and control of all the property that I may own at my death, the name of my said wife being Alargare! Franks/ during her lifetime and until her death.

“Third. I give, bequeath and devise to my children, one daughter Phoebe Saathoff and one son Frank G. Franks, onelialf of all property that I may be possessed of at my death, subject only to the first and second bequests heretofore made, to be divided equally between them, share and share alike.

“Fourth. I will, devise and bequeath to the children of my said wife by a former husband and marriage, and my son Frank G. Franks, and the living at my death children of my wife’s deceased daughter Anna Westemian. The said children to receive the same amount as one of the children of my said wife by a former marriage and no more. I will and bequeath the residue and remainder of my entire estate of every name and nature to the children of my wife by a former marriage to the children of her daughter to have a share equal to the amount received by any of my wife’s children, born while living with a former husband. The said property to be divided equally between them share and share alike as above set forth.”

On March 1, 1895, George Franks executed a note to Fred Brumm for $2,000 due March 1, 1898, with interest at the rate of 6 per cent and secured said note by a mortgage on part of the land sought to be partitioned. On January 29, 1899, Frank G. Franks, one of the devisees, conveyed his interest in the land to appellant, A. C. Morton, and on January 2, 1904, Lucas H. Brown, another devisee, conveyed his interest in the lands to Fred G. White. There was administration upon the estate of the testator and the administrator has been discharged. The note secured by mortgage being unpaid, the controverted question is whether the devise to Phoebe Saathoff and Frank G. Franks, is liable for the payment of the whole of this indebtedness, or should the indebtedness be paid out of the entire property and Plicebe Saathoff and A. C. Morton, assignee of the interest of Frank G. Franks, take one-half the residue of the estate after the payment of the indebtedness; and this involves the construction of the will of George Franks.

By agreement of the parties the commissioners having reported that the land could not be divided, it was sold and the mortgaged indebtedness paid out of the proceeds, the question being reserved for future decision against whose shares the payment should be charged. Afterwards a decree was made that the entire mortgage debt should be paid out of the half of the property devised to Phœbe Saathoff and Frank G. Franks. A. C. Norton, purchaser of the interest of Frank G. Franks, and Phcebe Saathoff appeal from that decree and assign for error that the court should have decreed the indebtedness payable out of the entire estate, and not out of their half.

The first clause in the will is a direction that all debts and funeral expenses be paid; the second is a devise to his wife of all his property during her lifetime. The wife of the testator died shortly before the filing of the bill for partition. The third clause gives and devises to Phœbe Saathoff and Frank G. Franks “one-half of all property that I may be possessed of at my death subject only to the first and second bequests heretofore made, to be divided equally between them share and share alike.” The fourth clause gives and devises the residue of the estate to certain grandchildren and children of his wife by a former husband without any clause in it that it is subject to the payment of any part of his debts.

“In the administration of testate estates the personal property is the primary fund for the payment of debts and general legacies, unless a contrary intention on the part of the testator satisfactorily appears. It is sometimes difficult to determine whether or not such contrary intention does appear. But it is no longer necessary that it should be shown by express words; it may be implied from the whole will taken together.” Dauel v. Arnold, 201 Ill., 570; Reid v. Corrigan, 143 Ill., 402. “An express direction by the testator that a particular piece of real estate shall be taken subject to the debts, will exonerate the personal property from its primary liability. The testator need not, in express language, declare his debts to be a charge upon his real estate and that his personal property is to be exempt from their payment, for the intention may be gathered from all the context.” Underhill on Wills, section 375. If from the whole will either by express language or from necessary implication it appears that a particular portion of the estate was to be the primary fund for the payment of debts, the remainder of the estate will be exonerated from that burden. A direction in the will that a devise shall be taken "subject to payment of my debts" if it is adequate for that purpose, will exonerate the personal estate. Underhill on Wills, sections 375 and 380; Hines v. Spruill, 2 D. & B. Eq. (N. C.), 101; Young v. Young, 29 Beav., 522; Forrest v. Prescott, L. R. 10 Eq., 545. The devise in the will of George Pranks gives to Phoebe Saathoff and Frank G. Franks “one-half of all property that I may be possessed of at my death subject only to the first and second bequests to be divided equally between them.” The first bequest is the clause concerning debts, and the second is the gift to the wife. The third clause clearly charged the payment of the debts of the testator upon the half of the property given to Mrs. Saathoif and Frank G; Franks; the other half of the estate was devised free from the debts, if the half devised subject to the payment of the debts was adequate for that purpose. The Circuit Court correctly construed the will.

The decree in directing the distribution of a certain sum of $750 remaining undistributed, by inadvertence omitted the name of Fred G. White, who had been found in the original decree to have purchased and obtained a deed to the interest of Lucas H. Brown, who was the owner of a one-eighth interest in the estate, and who was entitled to a portion of said sum of $750. Appellees concede this error and that the cause must be reversed and remanded to amend the final decree of distribution and direct the payment to White of the interest he had been found entitled to.

The decree is affirmed as to its construction of the will. That portion of the decree directing the distribution of the $750 is reversed and the cause remanded to the Circuit Court with directions to include Fred G. White as one of the distributees and give him his proportion of said sum.

Affirmed in part, reversed in part and remanded with directions.


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    The People ex rel. James A. Mahoney et al., Appellee, v. School Directors of District No. 248, La-Salle County, Appellants.
    Gen. No. 4,930.
    1. Mandamus—what petition for, must show. A petition for mandamus must show upon its face a clear right to the relief demanded and that it is the legal duty of the party sought to be coerced to do the thing he is called upon to do. It must set forth all the material facts relied upon so that the same may be traversed or admitted. It must negative any facts which might defeat the right to the writ.
    2. Mandamus—when demurrer should he carried hack to petition. If there is a defect in a petition for mandamus, such that the judgment should be arrested, a demurrer to a subsequent pleading should be carried back to the petition.
    3. Mandamus—when petition for, defective. A petition for mandamus to compel the borrowing of money to build a school house by issuing bonds and to erect a school house upon a new school site, is defective in failing to allege that the district is not indebted to the full extent of the constitutional limit or that it has no money on hand available for building such school house; also in failing to allege that the voters of the district have voted upon the amount of the bonds, etc.
    4. Schools—what preliminary to issuance of bonds to erect school house. Since the statute of 1889 it is necessary as a preliminary to the right to borrow money and issue bonds to erect a school house that the voters of the district vote upon the proposition as to the amount of the bonds to be issued, the time of payment thereof, etc.
    Mandamus. Appeal from the Circuit Court of La Salle County; the Hon. Edgab Bldredge, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    Butters, Armstrong & Ferguson, for appellants; Egbert Carr, of counsel.
    Edward J. Kelly, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is a proceeding for a writ of mandamus. The petition is filed in the name of the People of the State of Illinois ex rel. James A. Mahoney and others, against the Directors of School District No. 248 in township 35, range 3, in LaSalle county, to compel the directors to borrow sufficient money to build a school house by issuing bonds of said district and to erect a school house upon a new school site. The directors filed a demurrer to the petition but afterwards abandoned the demurrer and filed an answer consisting of twenty-five paragraphs attempting to set forth several defenses to the petition. The relators filed a demurrer to certain paragraphs and a motion to strike others. The court sustained the demurrer to several paragraphs and struck others, leaving five paragraphs answering the petition. The directors afterwards withdrew the five paragraphs and an order of default was entered against them for failure to comply with a rule to answer. Judgment was entered awarding a peremptory writ ordering the directors “to proceed forthwith with the erection of a school house” on the site described in the petition “and to borrow sufficient funds for the erection of such school building and issue bonds of the said school district therefor as provided by law.”

The assignments of error question the action of the court in striking the parts of the answer that were stricken, the sustaining of the demurrer to the paragraphs of the answer to which it was sustained and insist that it should have been carried back and sustained to the petition, and that the petition is not sufficient to sustain the judgment awarding the writ.

A petition for mandamus must show upon its face a clear right to the relief demanded and that it is the legal duty of the party sought to be coerced to do the thing he is called upon to do. It must set forth all the material facts relied upon so that the same may be traversed or admitted. Board of Supervisors v. The People, 222 Ill., 9; Lavalle v. Soucy, 96 Ill., 467; People v. Perrin, 103 Ill. App., 410. It must negative any facts which might defeat the right to the writ. Gormley v. Day, 114 Ill., 185; 13 Encyc. of Pl. & Pr., 679. If there is a defect in the petition such that the judgment should he arrested the demurrer to a subsequent pleading should be carried back. People ex rel. v. Crabb, 156 Ill., 155.

The petition in this case does not set forth that the district is not now indebted to the full extent of the constitutional limit, or that said district has any money on hand so available for building a school house. It does allege that the voters of the district voted “in favor of issuing the bonds of said district for the purpose of raising money wherewith to build such school.” It neither alleges that the voters voted upon the amount of the bonds, nor when said bonds shall become due. Prior to the statute of 1889, it was not necessary that the amount of the bonds should be voted upon. People v. Sisson, 98 Ill., 335. That case was decided while section 47 of chapter 122,. of the statute, passed in 1874, was in force regarding borrowing money by school districts. In 1889 the entire school law was revised, and section 4 of article IX of that revision (Hurd’s Stat., 1905, chapter 122, section 218, page 1826) provides a form of notice to be given. This section provides:

“4. Whenever it is desired to hold an election for the purpose of borrowing money as provided for in this article of this act, the directors of the district in which such election is to be held shall give at least ten days’ notice of the holding of such election by posting notices in at least three of the most public places in such district. Such notices shall specify the place where such election is to be held, the time of opening and closing the polls, and the question or proposition to be voted upon: Which notice may be substantially in the following form, viz.:

Notice of Election.

Public notice is hereby given that on the - day of ■—-—■, A. D. - an election will be held at —■— school district Ho. —'—, in township Ho. —■—, range Ho. -, of the principal meridian in - county, Illinois, for the purpose of voting Tor’ or Against’ the proposition to issue the bonds of said school district Ho. -to the amount of ■-dollars falling due (Here insert the times of payment, giving the amount falling due each year, if the bonds mature at different dates), which bonds are to bear interest at the rate of-per annum, payable-annually.”

The remaining part of the notice concerns the time of opening and closing the polls, the date of the notice, and the signature of the directors. The form of the notice is a part of the legislative, act. There is nothing contradictory between the form of the notice and the preceding part of the section. “It is an established rule, in construing a statute, that the intention of the law giver and the meaning of the law are to be ascertained by viewing the whole and every part of the act. One part of a statute must be so construed by another that the whole may,. if possible, stand; and that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.” Broom’s Legal Maxims, 521; Williams v. People, 17 Ill. App., 274; 26 Am. & Eng. Encyc. of Law (2d ed.), 616. The form in the act in question must be considered as a legislative exposition of the question or proposition to be voted upon.

The petition fails to plead either what notice was given for the election or what amount, if any, of bonds was to be issued. The only allegation in that regard is that there was a vote in favor of issuing bonds to build a school house. Ho case had been cited, decided since the passage of the act of 1889, wherein the voters did not vote upon the amount of bonds to be issued. The petition was insufficient in not alleging the amount of bonds that was voted to be issued, and that the amount to be issued wuuld not make the indebtedness of the district beyond the constitutional limit. It is unnecessary to pass upon the other question argued. The demurrer should have been carried back and sustained to the petition. The cause is reversed and remanded with directions to sustain the demurrer to the petition with leave to petitioners to amend.

Reversed and remanded with directions.


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    Dennis McMahon, Appellant, v. Joseph B. Feldman, Executor, et al., Appellees.
    Gen. No. 4,924.

      Insurance—act of June 22, 1893, entitled “an act to incorporate companies to do business of life or accident insurance on the assessment plan,” construed. A policy issued by a company organized under the act of June 22, 1893, entitled “An act to incorporate companies to do the business of life or accident insurance on the assessment plan,” may be made payable to the estate of the insured and may be transferred by the insured by a will to a beneficiary having an insurable interest in the life of the insured.
    Bill of interpleader. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Putebbaugh, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement hy the Court. The Peoria Life Association is a corporation organized and doing business under “An act to incorporate companies to do business of life or accident insurance on the assessment plan,” approved June 22, 1893. On August 15, 1902, the association issued its policy Ho. 724 on the “ordinary life plan” to John J. McMahon in the sum of $500 on his life, payable within ninety days after the receipt of proof of death of John J. McMahon, the insured; “such payment to be made to estate herein called the beneficiary; or if the insured survive the aforesaid beneficiary then to the administrator, executor or assigns of the insured.” The insured was an unmarried man, and paid all the premiums which accrued up to the time of his death. On May 7, 1904, the insured executed a last will, by which he bequeathed all his estate, including policy No. 724, for $500, in the Peoria Life Association, payable to his estate, to Joseph B. Feldman. The insured died on May 7, 1904. He was at that time a resident of Salt Lake City, Utah. The will was admitted to probate in Salt Lake county, Utah, and letters testamentary were issued to Joseph B. Feldman, who made proof of death of the insured and claims the amount of the policy as executor and legatee. The amount payable on the policy is also claimed by both Frank T. Miller, public administrator of the county of Peoria, Illinois, and by Dennis McMahon, the brother and only surviving heir of the deceased. The association filed a bill of interpleader in the Circuit Court of Peoria county, setting up the facts, and brought the money into court, made all the claimants parties, and prayed that they might interplead and that the court might decree to whom the money should be paid. The defendants answered, and the court upon a hearing decreed that the money be paid to Joseph B. Feldman, as executor, with the limitation that it should not be used to pay debts of the deceased. Dennis McMahon prosecutes this appeal from that decree, but does not question the correctness of the limitation concerning the use of the money.
    Sucher. & Wilhelm, for appellant.
    Charles Schaerer and Wm. A. Potts, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

The appellant, Dennis McMahon, assigns' a number of errors, but the only question involved is whether a policy issued by a corporation incorporated under the act of June 32, 1893 (Hurd’s Statutes 1905, page 1214), entitled “An act to incorporate companies to do the business of life or accident insurance on the assessment plan,” may be made payable to the estate of the insured, and may be transferred by the insured by a will to a legatee, or may policies issued by conqpanies chartered under said act only be payable either to the families, heirs, blood relations or dependents' of the deceased, no matter who may be the beneficiary therein named. The only limitation in this act regarding the proceeds is that contained in section 25, which provides that the money paid by any corporation doing business under this act shall not be liable to be taken by legal process to pay any liability of the policy holder or beneficiary. The act nowhere provides that the beneficiary, or the insured, if his estate be the beneficiary, may not voluntarily direct what use shall be made of the proceeds. Section 7 of this act provides that nothing contained in this act shall be applicable to organizations conducting their business as fraternal societies on the lodge system. An act entitled, “An act to provide for the organization and management of fraternal beneficiary societies for the purpose of furnishing life indemnity or pecuniary benefits to beneficiaries of deceased members,” etc. (Hurd’s Statutes of 1905, page 1222), was passed at the same time with the act under which the Peoria Life Association was organized. The “Fraternal Benefit Societies” Act contains a provision that death benefits thereunder “shall only be paid to the families, heirs, blood relations, affianced husband or affianced wife of, or to persons dependent upon the member,” and that such benefits shall not be willed, assigned or otherwise transferred to any other person. The two acts are distinct; policies issued by a company incorporated under either of these acts are not controlled by the provision of the other act, and decisions construing the effect of policies under one act are no authority as to the construction of policies under the other.

The policy involved in this case is an ordinary life insurance policy payable to the estate of the insured. The insured had an insurable interest in his own life and had the right to procure a policy and have it payable to bis estate or to any one whom he might appoint by will or any other mode. Bloomington Mutual Benefit Association v. Blue, 120 Ill., 121; Martin v. Stubbings, 126 Ill., 387; Delaney v. Delaney, 175 Ill., 187; Underhill on Wills, section 56. The charter of the Peoria Life Association authorized it to transact “life insurance upon the assessment plan, thereby affording financial benefits and assistance to its policy holders during their lives, and after their death to their widows, orphans, heirs, devisees, assigns or other beneficiaries, who may have an insurable interest in the life of the insured.” The only statutory limitation on the proceeds of the policy is that it cannot be taken by operation of law for debts of the insured, but he might so apply it if he saw fit, and the charter authorizes it to be paid to devisees or assigns. It is insisted that appellant, Dennis McMahon, because he was the only brother of the insured, had an insurable interest in the life of the insured, and that the proceeds could only be payable to him. If the association was doing business under the fraternal beneficiary act there would be reason in that contention. There is nothing in the record showing that the appellant had any insurable interest in his brother’s life. Guardian M. L. Insurance Co. v. Hogan, 80 Ill., 35; Chicago Guarantee F. L. Society v. Dyon, 79 Ill. App., 100. An insurable interest is a pecuniary one in the continuance of the life of the insured. The proof shows that the deceased was affianced to Mrs. B. Bateman; that fact would negative any presumption of an insurable interest in the appellant. Even a fraternal insurance policy is not assignable at law, still all beneficial interest may therein be transferred and equitable rights thereunder enforced in equity. Ptacek v. Pisa, 231 Ill., 522, and cases cited. The decree properly ordered the money paid to the devisee as directed by the will of the insured and it is affirmed.

Affirmed.