text:
    William W. Foss v Mabel C. Foss.
    1. " Separate maintenance—Alimony pendente lite.—In proceedings under the statute, by a married woman for a separate maintenance, alimony pendente lite should not be allowed. The sole object of the suit being for alimony or the obtaining of a sum of money for separate maintenance, such relief should be granted only upon a full hearing of the cause. It was not the intention of the legislature that the relief provided by this statute should be obtained on a preliminary motion made in the progress of the case, and which has the effect of shifting the burden of proof.
    2. Attorneys’ pees—Presumptions .—The allowance of fees to complainant’s solicitor, was a preliminary finding by the court which it had a right to make, and in the absence of any showing that such allowance was excessive, this court will indulge the presumption that the court below had before it such facts and circumstances as warranted the order in that respect.
    Appeal from the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
    Messrs. Grant & Swift, for appellant;
    that this was purely a statutory proceeding, and the law should be strictly construed, cited Rev. Stat. 1877, Chap. 68, § 22; Rev. Stat. 1877, Chap. 40, § 15; Trotter v. Trotter, 77 Ill. 510.
    The statute gives the court no right to decree a separation on final hearing. The most that it can do is to decree a separate support to the wife so long as she continues to live separate from her husband: 2 Bishop on Marriage and Divorce, § 861.
    Mr. S. K. Dow, for appellee,
    cited Petrie v. The People, 40 Ill. 334.
   Murphy, P. J.

The appellee filed her bill in the Circuit Court of Cook county, on the chancery side thereof, against her husband, the appellant, setting up, among other things, that she was living separate and apart from her said husband, but without fault on her part. That such separation of herself from him was made necessary by the cruelty and ill treatment of her husband, and prays for a decree against him for her separate maintenance. This bill was filed pursuant to the provisions of “Section 1 of an act in relation to Married Women, approved May 17th, 1877,” Bradwell’s Session Laws of 1877, 115, which reads as follows, to wit:

“Beit enacted, etc., * * that married women, who, without their fault, now live or hereafter may live separate and apart from their husbands, may have their remedy in equity in their own names respectively, against their husbands, for a reasonable support and maintenance while they so live or have so lived separate and apart; and in determining the amount to be allowed, the court shall have reference to the condition of the parties in life, and the circumstances of the respective cases; and the court may grant allowance to enable the wife to prosecute her suit, as in cases of divorce.” It will be seen that the sole object of the bill is alimony, and not the same as in bills for divorce, where the prime object of the proceeding is a decree of divorce between the parties, in respect to which alimony pendente lite is an incident—an unavoidable incident—■ to enable the wife to litigate with her husband the prime and grave question of divorce. Whilst the case was pending in the court below, and on the 12th day of July, 1878, on motion of counsel for the appellee, the court ordered the appellant to pay to appellee §100 for her solicitor’s fee, and the further sum of $50 per month as alimony, pendente lite, and awarded execution for the collection of the same, if not paid within the time fixed by the order for its payment. To the order, as made, the appellant excepted and prayed an appeal to this court, and brings the record here, and assigns, among other errors, that the court erred in granting appellee temporary alimony. 3d. That the amount of solicitor’s fees is excessive.

It will not be necessary for us to consider any other alleged errors. It is urged by the appellee that the statute above' quoted properly construed, authorizes the court to grant appellee alimony pendente lite in this proceeding, the same as it could do in proceedings for divorce, and that the concluding sentence of said section, that “the court may grant allowance to enable the wife to prosecute her suit as in cases of divorce,” means to adopt in cases of this character the same practice in all respects provided for by statute in applications for divorce. If this construction of the statute be correct, then it follows that the order made in this case is correct. It is section 15, chapter 40 of the Eevised Statutes of 1874, which provides for the practice in divorce cases, which so far as material to this question, reads as follows, to-wit:

Section 15. “ In all cases of divorce the court may require the husband to pay to the wife, or pay into court for her during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit; and in every suit for divorce, the wife when it is just and equitable, shall be entitled to alimony during the pendency of the suit.” * ':f Under the provisions of the last mentioned statute, the practice in all the courts of chancery in the State, approved by the Supreme Court, has been uniform. In applications for divorce orders of the character of the order in this case have, been made in proper cases almost as matter of course. The question of law then raised for our determination, is whether the practice and power of the court is the same in the proceeding provided for by each of these statutes. We think obviously not.

The first sentence of said last mentioned act makes it' the duty of the court in application for divorce, in a proper case, to provide the wife with two distinct funds, by order on the husband, for two separate and distinct purposes: one, to enable her to maintain or defend the suit, and one for her support and maintenance during the pendency of such suit. Keeping clearly in view the distinct character of the two funds thus provided for by section 15, and recurring to the concluding paragraph of the act first above mentioned, that “ the court may grant allowance to enable the wife to prosecute her suit as in cases of divorce,” and it is manifest that such provision has respect—and only has respect—to the provision in said section 15, which provides for a fund to enable the wife to maintain or defend the suit, and that by no legal interpretation will it bear a construction which will give it a wider scope. We think it .unambiguous and plain, when the two statutes are considered together, that in a proceeding such as this was—for a separate maintenance and not divorce—that it was error in the court below to award alimony pendente lite. The legislative intent in passing the act of IVlay 17,1877, is plainly manifest that the only question to be litigated in the case should not be decided on a preliminary motion and without evidence. The effect of such a law would be practically to grant the prayer of the bill, on a preliminary motion, and so long as such a state of case can be maintained of course the complainant could ask nothing better; and as a consequence the burden of proof shifts, and the defendant is compelled to take the laboring oar and endeavor to relieve himself from a decree, which it' granted at all, should only be granted upon a full hearing of all the evidence, and final disposition of the case.

We think this construction of the Statute conducive to good morals, domestic peace, and in conformity to an enlightened and elevated public policy. We are unable to say from this record that the fee allowed to the appellee’s solicitor is excessive. It was a preliminary finding, by the court which it has the legal right to make, and in the absence of a showing to the contrary, we will indulge the presumption that it had before it such facts and circumstances as warranted the order in that respect. For the above mentioned error the decree of the court below is reversed, and the cause remanded for further proceeding not inconsistent with the opinion.

Decree reversed.


source: Caselaw Access Project

author: Murphy, P. J.

license: Public Domain

text:
    Lewis A. Brown v. Frederick Kragel, use, etc.
    Vekdict against evidence.—Appellee brought suit against appellant for a balance claimed to be due for work on a house, done under a special contract, and for extra work. Appellant defended on the ground that the work was not well done, whereby damage had ensued to him, and as to the claim for extra work, pleaded the Statute of Limitations. This court finds from a review of the testimony, that the preponderance of evidence showed that the work was so unskillfully done as to result in damage to appellant, which he was entitled to have set-off against appellee’s claim, and that the claim for extra work was barred by the statute. The verdict being against the weight of evidence, a new trial should have been granted.
    Appeal from the Circuit Court of Cook county; the Hon. John Gf. Rogers, Judge, presiding.
    Mr. J. Henry Truman, for appellant:
    that where the verdict is against the weight of evidence a new trial should be granted, cited Booth et al. v. Hynes et al. 54 Ill. 363; Reynolds v. Lambert, 69 Ill. 495; Ill. Cent. R. R. Co. v. Chambers, 71 Ill. 519; C. C. & I. C. R. R. Co. v. Troesch, 57 Ill. 155; C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; Chicago v. Lavelle, 83 Ill. 482; Carney v. Tully, 74 Ill. 375.
    Messrs. Avery & Comstock, for appellee;
    that when the verdict is supported by a fair construction of the evidence, the court will not disturb it, cited Farr et al. v. Scott, 50 Ill. 490; Am. Ex. Co. v. Bruce, 50 Ill. 201; White v. Clayes, 38 Ill. 325; Umlauf v. Bassett, 38 Ill. 96; C. & R. I. R. R. Co. v. Coal & Iron Co. 36 Ill. 60; Tolman v. Race, 36 Ill. 472; Harbison v. Shook, 41 Ill. 142; First Nat. Bank v. Mansfield, 48 Ill. 494.
    The bill of exceptions does not show all the evidence in the cause, and this court cannot pass upon the sufficiency of the evidence without having it all produced: McKee v. Ingalls, 4 Scam. 30; Harmon et al. v. Thornton, 2 Scam. 351; Rogers v. Hall, 3 Scam. 5; McPherson v. Nelson et al. 44 Ill. 124; Prout et al. v. Grant et al. 72 Ill. 456.
   Murphy, P. J.

This was an action of assumpsit commenced in the Circuit Court of Cook county by the appellee against the appellant, to recover an alleged balance due him on a contract for doing the carpenter work on a house which was then being constructed in Chicago by the appellant. A trial of the cause resulted in a verdict and judgment against the appellant for the sum of $860.60, to which he excepted, and prayed an appeal to this court. He brings the record here and assigns for error that the verdict is not supported by the evidence, and that the court erred in refusing a new trial.

It appears that on the 27th day of February, 1872, a contract in writing was entered into between the appellant and appellee, whereby the appellee agreed, in consideration of §2,235, to be paid as the work progressed, to complete all carpenter and joiner work on a certain house named, in a 'workmanlike manner, etc., to be completed by May 1st,-1872. That as the work progressed payments were made until the completion of the job, when, as was alleged, $735 of such price remained unpaid, to recover which this suit was brought. At the trial Iiragel, the appellee, testified in general terms that he'had performed the contract according to the plans and specifications, except as to some delay in time which he claims was caused by the other contractors on the job; that he did a good job, and did extra work, specifying the same, on said house to the amount of $139. William Meyne and Frederick Saltzman testify as to how the delay in the time of completing the work was caused, but give but little satisfaction as to the real cause, which was substantially all the testimony on the subject of the performance offered by the appellee at' the trial.

The appellant relied upon the Statute of Limitations, and insisted that the work done on the house was not well done, nor in any true sense according to the plans and specifications, and that his damage caused thereby exceeded any balance which might appear to be due to the appellee. In support of such defense, the appellant introduced Gustav Bolton, the architect who prepared the plans, who identified the draught present in court as the originals from which he took drawings. The bids, he testifies, were made on both; that he wrote the specifications. The appellant also identifies the plans then in court as the ones by which the work was to be done.

Harall M. lían son, an architect of twelve years’ experience, testifies that he had examined the plans, and also the building as left by the appellee; that by reason of insufficient sleepers, the floors had settled from one and a half to two inches in all the stories; that to screw them up and put them in proper level would cost from $250 to $300; that the portico in front of the house was not properly put in, and that it would cost $15 to correct the defect.

He also testifies that it was a had job, and in addition to all the items specified, the whole work was worth $300 less than it would have been if it had been done in proper and workmanlike manner. This is not all the testimony tending to show that the work was not done according to the contract and that the appellant was damaged thereby; but it is enough to show by the manifest weight of the testimony that the work was not done according to the plans and specifications, and that it was a damage to the appellant to an amount very nearly or quite as large as the claim of the appellee, aside from the claim of $139 for extra work which was barred by the Statute of Limitations at the time this suit was brought. We are unable to see how the jury should have arrived at the verdict it did without substantially ignoring the testimony of .the appellant.

It is manifest that the appellee. has recovered for the extra work, $139. If that was ever .a meritorious claim at any time,, then it accrued on the first day of May, 1872, and being an open account, would be barred by the Statute of Limitations, in five years from that date. This suit was not commenced until the 9th day of May, 1877. But by a manifest preponderance of the evidence, the appellant was entitled to a material deduction from said claim, even though the jury should find the claim meritorious. This we think he has not had, and that the jury either misapprehended or disregarded the testimony in this respect. The circumstance that this claim was allowed to slumber from the 1st of May, 1872, until the 9th of May, 1877, is a circumstance wdiich, unexplained, should have some weight in determining the question of whether another trial would not promote the ends of justice.

In the light of these views, we think the motion for a new trial should have been sustained, .and that it was error to refuse it. For which error the judgment of the court below is reversed and the cause remanded.

Judgment reversed.


text:
    Samuel O. Walker et al. v. Martha A. Walker.
    Doweb—Assessment by joey.—In a proceeding for dower, where the ■commissioners report that the premises are not susceptible of division, and a jury is empaneled to inquire of the yearly value of the dower therein, the verdict of the jury is like the finding of a fact at law; is alone the foundation of the decree, and is binding upon all the parties until vacated and set aside by the Court. It is not like the trial of a feigned issue out of chancery which the Court may approve or reject in whole or in part, as may appear to him most equitable.
    Appeal from the Superior Court of Cook county; the Hon. S. It. Moore, Judge, presiding.
    Messrs. Small & Moore for appellants;
    that the statute allowing a jury to assess the value of dower, is imperative, and the court must enter a decree in conformity with the verdict, or, if erroneous, set it aside and direct a new trial, cited Rev. Stat. chap. 41, §39; Meeker v. Meeker, 75 Ill. 268.
    The words “ may ” and “ shall ” in the statute are inter-changeable, and when the rights of parties are involved, the •statute'is imperative: Fowler v. Perkins, 77 Ill. 373.
    Without consent of parties, the court was not authorized to disregard the finding of the jury: Story’s Eq. §§72, 624; Scribner on Dower, 674; Perry v. Goodwin, 6 Mass. 498; Martin v. Martin, 2 Green, 125.
    Messrs. Isham &.Lincoln, for appellee;
    that it was the duty of the court to reject so much of the verdict as was irrelevant, and enter judgment on the proper part of the verdict; cited Armstrong v. The People, 37 Ill. 459.
    As to the measure of damages in dower: Hitchcock v. Harrington, 6 Johns. 294.
    It is the duty of the heirs to pay off incumbrances paramount to dower, and when so paid, dower revives in the whole: Brown v. Lapham, 3 Cush. 551; Sandford v. McLean, 3 Paige Ch. 122; Rossiter v. Cossitt, 15 N. H. 38; Mathewson v. Smith, 1 Angell, 22; 1 Scribner on Dower, 525.
    The purchase by the attorney of the heirs of certain liens and incumbrances upon the estate come within the rule, that the lien paid formed part of the consideration, and so was paid by the estate, and dówer in the whole was thereby established: Carter v. Goodin, 3 Ohio St. 76; Hitchcock v. Harrington, 6 Johns. 292; Bolton v. Ballard, 13 Mass. 227; Coates v. Cheever, 1 Cow. 460; Wedge v. Moore, 6 Cush. 8; 1 Washburn on Real Property, *190.
   Murphy, P. J.

On the 18th day of August, 1874, the appellee exhibited her petition in the Superior Court of Cook county, praying for the assignment of dower in several parcels of land, of which Martin O. Walker died seized, including lots number 16 to 24 inclusive, in block 9, in Fort Dearborn addition to Chicago. . She alleged that she was married to said Martin O. Walker on the 7th day of May, 1874, and that he departed this life the 28th day of the same month; that the premises in which she claims the right of dower, are claimed by the heirs-at-law of said Walker, to wit: Samuel 0. Walker and Edward L. Walker, and that the defendants wrongfully withheld her rightful estate in dower. Upon the answers of the defendant’s general replications thereto, the cause was brought on to he heal’d; when on the 13th day of January, 1877, an interlocutory, decree was made. This decree, among other things, adjudged that the appellee was entitled to dower in several parcels of property, among which are lots 16 to 21 inclusive, in block 9, in Fort Dearborn addition to Chicago. By this decree, commissioners were appointed in pursuance to the statute, to ad-measure and set off to the appellee her said dower. These commissioners subsequently reported back to the court that the premises were of such a character as not to he susceptible of division without damage to the whole. Thereupon, on motion of the counsel for the appellee, a jury was called and impaneled to i n quire of the yearly value of the dower of appellee in said premises, which, after hearing the evidence and instructions of the court, returned into court the following verdict, to wit:.

The jury find for the plaintiff, as her annual dower in the above described property, the sum of $1,500.00, subject to the following provision: Should the so-called Tucker, Brown & Co. mortgage be held legal, and a lien on the above described property, then we find no dower in said property.”

Upon this verdict the court decreed for the appellee, that the sum of $1,500.00 per annum, from and after thé 20th day of February, 1878, be paid to the appellee, payable in quarterly payments of $375 each, on the 21st day of the months of August, .November, February and Hay, occurring thereafter, during her natural life. To this decree the appellants excepted, and prayed an appeal to the court. They insist that the court erred in disregarding the verdict of the jury in relation to said property. That the court erred in making the annual dower on said property payable forthwith, in the manner required by the decree 'in said cause; because the decree in said cause is inconsistent with said verdict.

This proceeding is instituted and carried on under and by virtue of section 39 of chapter 41, of the Bevised Statutes of 1874,427. It reads as follows, to wit: “ When the estate out of which dower is to be assigned, consists of a mill or other tenement which cannot be divided without damage to the whole; and in all cases where the estate cannot be divided without great injury thereto, the dower may be assigned out of the rents, issues and profits thereof, to be had and received by the person entitled' thereto as tenant in common with the owners of the estate, or a jury may be impaneled to inquire of the yearly value of the dower therein, who shall assess the same accordingly; and the court shall thereupon enter a decree that there be paid to such person as an allowance, in lieu of dower, on a day therein named, the sum so assessed as the yearly value of such dower, and the like sum on the same day of each year thereafter, during his or her natural life, and may make the same a lien on any real estate of the party against whom such decree is rendered.”

It will be observed that the foregoing section has application only in cases where the property in which dower has to be assigned is not susceptible of division without injury to the whole. It provides for two methods or modes of procedure in such cases. One is by assigning to the party entitled thereto a proper proportion of the rents, issues and profits of the premises, and the other is to impanel a jury to inquire of the yearly value of the dower therein, and it is for the applicant for such assignment to elect which one of these methods they will adopt; and if, as in this case was done, they elect to impanel and take the verdict of a jury, we think that must constitute the foundation of the decree, and that in such a case no decree is sustain-' able except such a one as is warranted and sustained by the verdict. It is not like the trial of a feigned issue arising out of chancery, merely advisory to the chancellor, a thing he may approve or reject in whole or in part, as may appear to him most equitable. It is a statutory finding by the jury, which, like the finding of a fact at law, is binding on all parties until vacated and set aside by the court. As we have seen, the verdict alone is the foundation for the decree; an important question necessarily arises on the sufficiency of the' verdict to sustain and justify the decree.

The record discloses the fact that for the purpose of securing a contingent liability to Tucker, Brown & Co. the said Martin O. Walker, in his life-time, the appellee joining him therein, executed a certain deed of trust on the premises in controversy, dated April 15,1874, to Charles E. Brown, of Buffalo, Mew York, for their use, for the sum of $119,000, which said trust deed was recorded in the recorder’s office of Cook county, Illinois, in volume 413, page 13, and still subsists of record, an apparent lien upon said' property. It is this trust deed to which the jury in the verdict referred as the “ so-called Tucker, Brown & Co. mortgage.” The jury has found for the appellee that she received the sum of $1,500 per annum, subject to the following provision or condition: “That is, if the Tucker, Brown & Co. mortgage be held invalid, then the appellee should be entitled to the said sum of $1,500 per annum, as dower. But if said mortgage be held a valid lien, “ then we find no dower for the plaintiff, in said property.” Thus it appears that the jury did not intend to give a verdict for the appellee except upon condition that the Tucker, Brown & Co. mortgage be first declared invalid, and no lien on the property —a verdict we think the jury had no legal warrant for making. The jury was impaneled to inquire of the yearly value of the dower in said property. That from all the evidence and circumstances in the case, the jury should have found, and found some definite sum, and unconditionally fixing such sum as she was fairly, under the circumstances, entitled to. This the jury has not done, but has found a verdict predicated upon a condition which they knew did not exist, namely: the cancellation of the Tucker, Brown & Co. mortgage, and which thus- works its own defeat. The court did not have the question of the “ bonafides ” of the Tucker, Brown & Co. mortgage before it. Neither the pleadings nor proofs raised that question; and hence the court was powerless to make such a decree in respect thereto, as would, under the verdict, enable the court to decree dower; so we think the court should have set the verdict aside, as being bad for uncertainty; and that it was error to refuse, and as a consequence, it was error to make the decree for dower as it did, predicated on such verdict.

In the light of these views, the decree of the court below will be reversed and the cause remanded, with directions to that court to set the verdict of the jury aside, and permit the appellee to so amend her bill, if she desires, as to raise the question of the validity of the Tucker, Brown & Co. mortgage. If such course is not desired by her, then for further proceedings in the case.

Decree reversed.


author: Bailey, J.

text:
    Sylvester S. Bliss, Impl’d, v. Samuel S. Gardner et al.
    1. Landlobd and tenant—Assignment by lessee—Receipt oe bent ekom assignee.—Where a tenant has assigned his interest in the lease, and the landlord has recognized the assignee as his tenant and accepted rent from him, the lessee is no longer liable to the lessor in debt, for the rent. The assignment and acceptance by the lessor destroys the privity between the lessor and lessee necessary to support the action of deht.
    2. Parol assignment—Statute oe frauds.—Although the assignment was by parol, yet it having become executed and the assignee accepted by the landlord as a tenant, the statute of frauds can have no application, and the landlord is in no position to avail himself of the statute.
    Appeal from the Circuit Court of Cook county; the Hon. W. IL McAllister, Judge, presiding.
    Mr. David Falls, for appellant;
    that the action of deht is not maintainable against a lessee after an assignment and acceptance of rent from the assignee, cited Taylor’s Landlord and Tenant, §618; Wadham v. Marlow, 8 East 314; 1 Salk. 81; Misch v. Brace 2 Cro. 334; Wall v. Hinds, 4 Gray 256; Fletcher v. McFarlane, 12 Mass. 43.
    The parol assignment having been executed, is not within the Statute of Frauds: Swansey v. Moore, 22 Ill. 65.
    The fact that demised premises are found in the possession of parties not named in the lease, raises a presumption that they are assignees and not under-tenants: Acker v. Witherell, 4 Hill, 112.
    As to proof sufficient to establish the relation of assignee: Carter v. Hammett, 18 Barb. 608; Armstrong v. Wheeler, 9 Cow. 88.
    Appellees by proving their claim in bankruptcy against the assignee of the lease, and giving a receipt in full therefor on payment of dividend have released the lessee: Sherman v. Cook, 2 B. & A. 119; Walker v. Richardson, 2 M. & W. 882.
    Messrs. Tulet, Stiles & Lewis, for appellees;
    contending-that a tenant is liable for rent after assignment, though the landlord has accepted the assignee as his tenant, cited Frank v. Maguire, 42 Pa. St. 77; Shaw v. Partridge, 17 Vt. 626; Bailey v. Wells, 8 Wis. 141; Hunt v. Gardner, 39 N. J. Law, 530; Flitchen v. McFarlam, 12 Mass. 43; Wall v. Hinds, 4 Gray, 256; Mills v. Auriol, 4 T. Rep. 94; Boot v. Wilson, 8 East. 311; Taylor’s Landlord and Tenant, § 438.
    Acceptance of the assignee as tenant does not amount to proof of surrender: Hunt v. Gardner, 39 N. J. Law, 530; Bailey v. Wells, 8 Wis. 141.
    Covenant will lie on a lease under seal: Taylor’s Landlord and Tenant, §§ 428, 620.
    Or assumpsit on lease not under seal: Root v. Wilson, 8 East. 311.
    In this State assumpsit will lie in either case: Practice Act, § Í9.
    Debt is also an appropriate remedy: Bouvier Law Die. title, “Debt.”
    The lease being, for more than one year, the assignment should have been in writing: Taylor’s Landlord and Tenant, § 247; Woodfall on Landlord and Tenant, 204.
    The lessor could not enforce the covenants of the lease against the assignee: Cox v. Bishop, 8 DeG. M. & G. 815.
    A lessee cannot by his own act, without the assent of the lessor, destroy the tenancy: Wadham v. Marlowe, 8 East. 314.
   Bailey, J.

This suit was brought by appellees against appellant and one Thomas F. Torrey, co-partners, under the name of Bliss & Torrey, to recover certain rents claimed to be due upon a lease from appellees to them of certain premises in Chicago. As originally brought the action was covenant, but by leave of the court it was afterwards changed to debt, and in that form of action issues were joined and a trial had before the court without a jury, resulting in a judgment against appellant for $431.67 and costs.

The lease, which is in writing though not under seal, bears date February 4, 1873, and demises to Bliss & Torrey the premises in question, from the first day of March, 1873, to the first day of May, 1878, for certain rent payable monthly during said term. The rent claimed to be in arrears and for which suit is brought, is a portion of that payable for the months of •June, July and August, 1876. The evidence shows that in April, 1873, more than three years before the rent in question ; accrued, the firm of Bliss & Torrey was dissolved, said Bliss retiring therefrom and transferring all his interest therein, as well as in said lease, to one Bradley, who had previously been in the employ of the firm, and that thereupon said Bradley and said Torrey formed a co-partnership under the name of Torrey & Bradley, and as such took possession of the demised premises and paid to appellees the rent thereon as the same accrued until June, 1876, at which time said Torrey & Bradley were adjudicated bankrupts. After such adjudication appellees proved their claim in the court of bankruptcy against the estate of said bankrupts for the identical rent sought to be recovered here. Subsequently, as a result of composition proceedings, said bankrupts were discharged upon the payment of thirty per cent, of their debts, whereupon appellees received and receipted for thirty per cent, of their said claim, it being expressed in said receipt that said thirty per cent, was in full of their claim against said bankrupts under the order of said court of bankruptcy.

It is insisted by appellant that under the facts thus shown he is not liable to an action of debt for the rent in question. The principle seems to be well supported by authority, that after a lessee has assigned his lease and the lessor has recognized the assignee as his tenant and accepted rent from him, the lessee is no longer liable to the lessor in debt for the rent, although he may still remain liable to an action of covenant or assumpsit. Thus, Mr. Taylor states the law applicable to this proposition, as follows: “The lessee, as well as his executors and administrators, remains liable to an action of debt by the lessor or his assignee so long as the term continues, and he cannot discharge himself from liability by his own act; if, therefore, the lessee assigns the lease, he or his executor still remains liable for rent in this action; but if the lessor accepts rent from the assignee and recognizes him as his tenant, an action of debt will not lie against the original lessee, though covenant may.” Taylor’s Landlord and Tenant, § 620. This is upon the principle that the assignment and acceptance of the assignee destroys the privity between the lessor and lessee necessary to support the action of debt. Id. § 618.

It is not disputed that immediately after the assignment by appellant to Bradley the latter went into possession of the premises as tenant jointly with Torrey, the other partner, or that from that time up to June, 1876, a period of over three years, Torrey & Bradley in fact paid appellees the rent. Appellees, however, dispute their knowledge of the assignment, and claim that during all this time they presented their bills for rent made out against Bliss & Torrey, and receipted for rent in that form—they all the while being ignorant of the fact that Bradley, who was formerly an employee of Bliss & Torrey, had become a partner in the concern. Apart from the great improbability of appellees remaining for more than three years ignorant of Bradley’s relations to the firm, while they were all the time collecting from the firm their rent each month, their acceptance of Bradley as their tenant is, we think, conclusively shown by their proving their claim for rent against the estate of Torrey & Bradley after the adjudication in bankruptcy, and receiving the dividend declared in the composition proceedings.

It is claimed by appellees that the assignment of the lease to Bradley not being in writing, is void by the Statute of Frauds, and so cannot be set up to defeat the present action. We are unable to perceive how appellees can avail themselves of the Statute of Frauds, or how, after the parol assignment has been executed and the assignee accepted by the lessors as their tenant, the Statute of Frauds can have any application.

It is insisted by appellant that appellees, by proving their claim in bankruptcy, and afterwards giving a receipt therefor in full on receiving their dividend, have discharged appellant from all liability in any form of action. Upon this proposition we express no opinion, but being satisfied that he is not liable in debt, the judgment must be reversed and the cause remanded.

Judgment reversed.


text:
    The Lake Shore and Michigan Southern Railway Company v. Abraham Berlink, by his next friend, etc.
    1. Railroads—Running at prohibited speed—Contributory neg ligence.—Apart from the provisions of the statute, that railroads running their locomotives at a greater rate of speed than is permitted by any ordinance of a city, such railroad shall he liable for all damage done to a person by the negligence of such railroad or its agents, and such injury shall he presumed to have been done by the negligence of such corporation, it is unquestionably the law of this State that a plaintiff whose negligence has materially contributed to the injury of which he complains, cannot recover therefor unless it appears that his negligence was slight, and that of the defendant gross in comparison.
    2. Liability as appected by the statute.—As affected by the statute above cited, the liability of the railroad company is absolute only in the absence of proof rebutting the statutory presumption of negligence; and when the proof establishes contributory negligence on the part of the plaintiff, the presumption of liability raised by the statute ceases, and as in other cases, the plaintiff can recover only where his negligence is slight, and that of the defendant gross.
    3. Instruction—Giving undue prominence to testimony.—An ins'ruction that singles out and gives prominence to portions of the testimony is erroneous, i
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. C. D. Boys, for appellant;
    that the plaintiff must show that he exercised due care and diligence, cited Ill. Cent. R. R. Co. v: Hetherington, 83 Ill. 510.
    Where the plaintiff has been guilty of gross negligence an action will not lie unless the injury was willfully or wantonly inflicted: C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; L. S. & M. S. Ry. Co. v. Hart, 1 Chicago Law Jour. 298; Ill. Cent. R. R. Co. y. Godfrey, 71 Ill. 500; Ill. Cent. R. R. Co. v. Hall, 72 Ill. 222; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; L. S. & M. S. R. R. Co. v. Miller, 25 Mich. 274; Wharton on Negligence, § 384; Galena, etc. R. R. Co. v. Loomis, 13 Ill. 548.

      It is the duty of a person approaching a railroad crossing to look in every direction before attempting to cross, and a failure to do so is gross negligence: C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. R. I. & P. R. R. Co. v. Bell, 70 Ill. 102; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; C. B. & Q. R. R. Co. v. Damerell, 81 ill. 450; C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; Ill. Cent. R. R. Co. v. Green, 81 Ill. 19; C. & A. R. R. Co. v. Jacobs, 63 Ill. 178; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; Ill. Cent. R. R. Co. v. Godfrey, 71 Ill. 500; R. R. Co. v. Houston, 5 Otto, 697; T. P. & W. R. R. Co. v. Riley, 47 Ill. 514.
    The fact that the engine was running at a prohibited rate of speed does not relieve the plaintiff from the exercise of ordinary care, nor is it alone a sufficient reason for holding that the injury was willful or wanton: C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Artz v. C. R. I. & P. R. R. Co. 34 Iowa, 153; R. R. Co. v. Hunter, 33 Ind. 335; R. R. Co. v. Houston, 5 Otto, 697.
    Where an infant insists upon his right of action, it is incumbent upon him to show compliance with the conditions upon which such right is based, irrespective of his age: Heinzberger v. Second Ave. R. R. 40 N. Y. 570; Burke v. Broadway & Seventh Ave. R. R. Co. 49 Barb. 529; Lafayette & Indianapolis R. R. v. Hoffman, 28 Ind. 287; C. & A. R. R. Co. v. Becker, 76 Ill. 25.
    Instructions must be based on evidence: G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478.
    The negligence of the plaintiff must be slight and that of the defendant gross: Ill. Cent. R. R. Co. v. Goddard, 72 Ill. 567.
    A failure to sound bell or whistle will not excuse the plaintiff from exercising due care in crossing the track: C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501; Ill. Cent. R. R. Co. v. Maffit, 67 Ill. 431.
    An instruction to the effect that if the track was unobstructed and nothing to prevent the plaintiff’s view, he is guilty of negligence if he failed to look both ways before attempting to cross, should have been given as asked by defendant: T. W. & W. R. R. Co. v. Miller, 76 Ill. 278; C. & A. R. R. Co. v. Engle, 76 Ill. 317; Tefft v. Ashbaugh, 13 Ill. 602; Amos v. Sinnot, 4 Scam. 440; Pleasant v. Plant, 22 Wal. 116.
    Eights which accrue under a statute and are not concluded by judgment, are lost by its repeal: Van Inwagen v. Chicago, 61 Ill. 31; Wilson v. O. & M. R’y Co. 64 Ill. 542.
    Statutes will be interpreted so as to best promote the object intended: R. R. I. & St. L. R. R. Co. v. Heflin, 65 Ill. 366; Decker v. Hughes, 68 Ill. 33.
    The verdict was against the weight of evidence: C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; Q. A. & St. L. R. R. Co. v. Wellhœner, 72 Ill. 60; R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398; T. W. & W. R. R. Co. v. Miller, 76 Ill. 278; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; Davenport v. Springer, 63 Ill. 276; C. B. & Q. R. R. Co. v. Parks, 18 Ill. 460.
    Mr. Adolph Moses, for appellee;
    that the negligence of a child is not to be measured by the standard of an adult, cited C. & A. R. R. Co. v. Becker, 76 Ill. 25; C. & A. R. R. Co. v. Murray, 71 Ill. 601; Kerr v. Forgue, 54 Ill. 482; C. & A. R. R. Co. v. Gregory, 58 Ill. 226.
    The instruction given for plaintiff upon the liability of a-railroad company by reason of running their engines at a prohibited rate of speed, was proper: P. C. & St. L. R. R. Co. v. Knutson, 69 Ill. 103; Rev. Stat. 1877, 773; Kissinger v. R. R. Co. 56 N. Y. 538; St. L. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; T. W. & W. R’y Co. v. O’Connor, 77 Ill. 391; I. & St. L. R. R. Co. v. Peyton, 76 Ill. 340.
    Upon the question of loss of rights accruing under a statute by a repeal of a statute: Rev. Stat. 1877, 960; Farmer v. The People, 77 Ill. 322; Roth v. Eppy, 80 Ill. 283.
    If the negligence of the plaintiff is slight and that of defendant gross, a recovery may be had: G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478; C. & A. R. R. Co. v. Gretzrier, 46 Ill. 76; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300.
    A less degree of negligence is required in a case where an infant is injured: Isabel v. Railroad Co. 60 Mo. 475; R. R. Co. v. Stout, 17 Wall. 660; R. R. Co. v. Gladmore, 15 Wall. 406; R. R. I. & St. L. R. R. Co. v. Delaney, 82 Ill. 198; Maher v. R. R. Co. 67 N. Y. 52; Wharton on Negligence, § 314; C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 255.
    The witnesses for defendant, being employes, all stand in the position of persons more or less accountable for the accident, and the jury are justified in giving their testimony less weight than that of others: C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 484; C. B. & Q. R. R. Co. v. Cauffman, 38 Ill. 427.
    Plaintiff need not aver that he was free from negligence: C. & N. W. R’y Co. v. Koss, 73 Ill. 394.
   Bailey, J.

This was an action on the case brought by appellee against appellant to recover damages for a personal injury alleged to have been received by appellee, in consequence of the negligence of the agents and servants of appellant. At the time of the injury, appellee was a boy eleven or twelve years old, residing with his parents in the city of Chicago, about a block and a half distant from the point where appellant’s railroad crosses Harrison street. It appears that on the 2d day of September, 1874, at about eight o’clock in the evening, appellee was sent by his father on an errand to a point on the other side of appellant’s railroad, and that while standing upon, or attempting to cross the railroad track at Harrison street, he was struck by one of appellant’s engines and knocked down and severely injured. On the trial below, the jury found a verdict for appellee, and assessed his damages at $4,000, for which sum and costs judgment was rendered against appellant.

The record shows that at the time of the injury, there was in force an ordinance of the city of Chicago, providing, that no locomotive engine should be driven or run upon any railroad track within said city at a greater speed than six miles per hour, and evidence was introduced at the trial, on behalf of appellee, tending to show that at the time of the injury, the engine was being run at a rate of speed prohibited by said ordinance. Under these circumstances the court gave to the jury, at the instance of appellee, the following instruction:

“ The court instructs the jury, that the laws of the State of Illinois provide, that whenever any railroad shall run any locomotive engine at a greater rate of speed than is permitted by any ordinance of snch city, such railroad company shall be liable to the person aggrieved for all damages done to such person by the neg!igence_of the railroad or its agents, and such injury shall he presumed to have been done by the negligence of such corporation; but such presumption may be rebutted by such railroad company by satisfactory evidence before the jury; so, if the jury believe from the evidence in this case, coming from the witness, or appearing from circumstances in evidence bearing upon such point, and considering the time and distance traveled by defendant’s engine after crossing Harrison street going north, and re-crossing south, that at the time of the accident in question, said locomotive engine was running across Harrison street at a greater rate of speed than six miles per hour, and that the plaintiff was injured on said Harrison street by said engine, then the law presumes such injury to have been done by the negligence of the defendant company, unless it appears from the evidence to the satisfaction of the jury that the plaintiff’s negligence was gross and willful.”

Apart frorq the provisions of the statute alluded to in this instruction, the law of this State unquestionably is, that a plaintiff whose own negligence has materially contributed to the injury of which he complains, cannot recover damages for such * injury unless it appear that his negligence was slight, and that of the defendant gross in comparison therewith. The instruction, however, lays down the rule that in cases coming within the purview of the statute, the plaintiff’s right to a recovery is defeated by no degree of negligence on his part less than that which is gross or willful.

This statute (R S. 1874, chap. 114, § 62,) is a modification of the act of February 16, I860 (Pub. Laws, 1865, p. 103). Section 1 of the last named act provided that any railroad company running its trains or engines through the limits of any incorporated city or town at a greater rate of speed than that permitted by the ordinances of such city or town, should be liable to each individual sustaining damage done by such train or engine to the full extent of such damage. Section 2, provided, that if any live stock should thereby be killed, the same should be presumed to have been done by the negligence of the company or its agents. By the revision of 1874 these two sections are combined in one, and it is now provided that, whenever any railroad corporation shall run any train, locomotive, engine or car through the incorporated limits of any city, town or village at a greater raid of speed than is permitted by any ordinance of such city, town or village, such corporation shall be liable to the person aggrieved, for all damages done the person or property by such train, locomotive, engine or car, and the same shall be presumed to have been done by the negligence of such corporation or its agents.

The act of 1865 was construed by the Supreme Court in the case of the Pittsburgh, Cincinnati & St. Louis R. W. Co. v. Knutson, 69 Ill. 103. It was there held that the first section of the act was designed to change the common law liability of railroad companies so as to render them absolutely liable for all injury done to person's when running at the prohibited speed, unless the negligence of the person injured was gross or willful. The second section, however, the court remarked, created only a presumption of negligence. Such presumption undoubtedly was susceptible of being rebutted by proof, and merely shifted from the plaintiff to the defendant the burden of proof as to such negligence. Kow that both of these provisions are embodied in the same section, and made applicable to injuries to both persons and property, the question arises, whether in the absence of gross or willful negligence on the part of the person injured, the liability of the company remains absolute, or whether under the present statute such liability may not be rebutted by affirmative proof of such degree of negligence on the part of the plaintiff as would in other cases bar his recovery. If the former of these constructions is to prevail, it is difficult to perceive that any force whatever is given to the clause imported into the present statute from the second section of the act of 1865. Giving both clauses their proper and legitimate force, we are inclined to the opinion that, as the law now stands, the liability of the railroad company is absolute only in the absence of proof rebutting the statutory presumption of negligence. It follows that where the proof establishes contributory negligence on the part of the plaintiff, the presumption of liability raised by the statute ceases, and as in other cases, the plaintiff can recover only where his negligence is slight, and that of the defendant gross. If we are correct in this construction of the statute, the instruction above recited is clearly erroneous.

The construction we have adopted seems to be fully supported by the decision of the Supreme Court in Illinois Central R. R. Co. v. Hetherington, 83 Ill. 510. In that case the evidence tended to show that the injury from which the plaintiff’s intestate died, was ■ received from one of the defendant’s trains while running within the city of Chicago at a rate of speed prohibited by the same ordinance in evidence in this case. The Court, reversing a judgment for the plaintiff, say:

“ While the rule is well settled in this State that a recovery may be had by a party who has been guilty of contributory negligence, where his negligence is slight and that of the defendant gross, yet the authorities all agree that it is an indispensable element to the right of action in every case, that the plaintiff, or party injured, must have exercised ordinary care, such as a reasonably prudent person will always adopt for the security of his person or property.” And again:
“While it is true the railroad company was running its train at a greater rate of speed than allowed by the ordinance of the city of Chicago, yet that fact did not relieve the deceased from the exercise of ordinary care, nor can the speed of the train alone be regarded as furnishing'a sufficient reason for holding that the injury was willful or wanton.”

We think this instruction is further objectionable in that it singles out and gives undue prominence to a portion of the evidence bearing upon the question of the speed at which the engine was running at the time the plaintiff received the injury. The engine was a switch-engine, and was at the time being used to move a passenger train" from a point south of Harrison street to appellant’s passenger depot, situated a little over two hundred feet north of said street. The engine had just moved a portion of the train into the depot, and at the time of the accident was returning for the residue. A considerable number of witnesses, including those in charge of the engine, and others standing within view, testify with more or less definiteness, as to the rate of speed at which the engine was moving. Some evidence also was given tending to show the length of time occupied in going to the depot and returning, and upon this evidence a computation is sought to be made from which to determine the speed. Hone of the witnesses pretend to have timed the interval with a watch or otherwise, and their estimates for such a purpose are manifestly of very little value. The instruction singles out the evidence bearing upon the time and distance traveled by the engine, and ignores that of the witnesses who saw and estimated the rate of speed at the time. It has been repeatedly held that an instruction which singles out and gives undue prominence to certain facts, ignoring other facts proved and of equal importance to a proper determination of the case, is erroneous. Calef v. Thomas, 81 Ill. 478; Homes v. Hale, 71 Id. 552; Hewett v. Johnson, 72 Id. 513; Evans v. George, 80 Id. 51.

It is further insisted by appellant that' the verdict of the jury is against the clear preponderance of the evidence. As the case must be submitted to another jury, we do not deem it advisable to discuss the evidence further than to say, that we have carefully examined the record, and are of opinion that the preponderance of the evidence is clearly with the defendant, and that for that reason the verdict of the jury should have been set aside.

A number of other errors are assigned which we do not deem it necessary to consider, but for the errors above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.


text:
    Robert W. Healy et al. v. The Joliet & Chicago Railroad Company et al.
    1. Navigable Streams.—Those rivers must be regarded as public, navigable rivers in law, which are navigable in fact, and they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade or travel are or may be conducted in the customary modes of trade and travel on water.
    2. User not necessary.—Where a water-course in its natural condition is susceptible of being advantageously used for purposes of transportation by water, it is in law a navigable stream, and this conclusion is not affected by the fact that the stream has never been actually used for that purpose to any great extent. The public easement depends not so much upon actual user as upon the capabilities of the stream for advantageous use as a public highway.
    3. Nuisance—Where the charter of a railroad company gives it the right to construct its road across a water-course only on condition that the same should be restored to its former state, or in such manner as not to impair its usefulness, a bridge erected over such water-course which does not fulfill this condition of the charter, is both a public and private nuisance, as much so as if it had been erected without legislative authority.
    Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
    Messrs. Sweezy & Ives, for plaintiffs in error;
    that a court of equity has jurisdiction in this case, cited Wood’s Law of Nuisance, § 647 ; 2 Story’s Eq. Jur. § 921; 2 Waterman’s Eden on Injunctions, 264; City v. Alexandria Canal Co. 12 Pet. 91; State v. Wheeling Bridge Co. 13 How. 518; Frink v. Lawrence, 20 Conn. 117; Knox v. Mayor, 55 Barb. 404; Mayor v. Baumbeger, 7 Robt. (N. Y.) 219; Hudson River R. R. Co. v. Loeb, 7 Robt. (N. Y.) 418; Davis v. Mayor, 14 N. Y. 506; Park v. C. & S. W. R. R. Co. 23 Iowa, 636; Ewell v. Greenwood, 26 Iowa, 377; Wahle v. Reinback, 76 Ill. 322; State v. Mayor, 5 Porter, 279; Mayor v. Jaques, 30 Ga. 506; Savannah R. R. Co v. Sheils, 33 Ga. 601; Barnes v. City, 4 Wis. 454.
    As to what constitutes navigable waters and the rights of persons owning lands bordering thereon: The Montello, 20 Wall. 430; The Daniel Ball, 10 Wall; 557; Pennsylvania v. Wheeling Bridge Co. 13 How. 518; Berry v. Carle, 3 Me. 269; Brown v. Chadburne, 31 Me. 9; Veazir v. Dwinel, 50 Me. 479; Gerrish v. Brown, 51 Me. 256; Lancey v. Clifford, 54 Me. 487; Scott v. Wilson, 3 N. H. 321; Thompson v. Androscoggin Co. 54 N. H. 545; Commonwealth v. Charlestown, 1 Pick. 179; Charlestown v. Middlesex, 3 Met. 202; Morgan v. King, 35 N. Y. 454; People v. Vanderbilt, 26 N. Y. 287; Blanchard v. Western Union, 60 N. Y. 570; Brown v. Scofield, 8 Barb. 239; Moore v. Sanborn, 2 Mich. 519; Thunder Bay Co. v. Speechly, 31 Mich. 336; Barnes v. Racine, 4 Wis. 454; Oleson v. Merrill, 42 Wis. 203; Delaplain v. C. & N. W. R. R. Co. 42 Wis. 214; Packet Co. v. Peoria Bridge Co. 38 Ill. 467; City v. McGinn, 51 Ill. 266; Am. River W. P. Co. v. Amsden, 6 Cal. 443; Weise v. Smith, 3 Ore. 445; Felger v. Pearsons, 3 Ore. 455; Stuart v. Clark, 2 Swan, 9; Hickox v. Hine, 23 Ohio, 523; Angell on Watercourses, § 535.
    The bridge is maintained in violation of the provisions of the charter of defendants, and should, be abated as a nuisance: C. R. I. & P. R. R. Co. v. Moffit, 75 Ill. 524; Cott v. Lewiston R. R. Co. 36 N. Y. 214; Plummer v. Lumbering Asso’n, 67 Me. 363; Dugan v. Bridge Co. 3 Casey, 303; Bacon v. Arthur, 4 Watts, 437; Brown v. Cayuga, etc. R. R. Co. 12 N. Y. 486.
    Mr. Geokhe W. Smith, for defendants in error;
    that navigability in law is derived from navigability in fact, cited The Genesee Chief, 12 How. 443; The Daniel Ball, 10 Wall. 557; The Montello, 11 Wall. 411; The Montello, 20 Wall. 440; Ingraham v. C. B. & M. R. R. Co. 34 Iowa, 255.
    The test of navigability is that it shall be beneficial to the public for purposes of trade or agriculture: Glover v. Powell, 10 N. J. Eq. 211; Rowe v. Granite Bridge Co. 21 Pick, 344; Gilbert v. Morris, etc. Canal Co. 8 N. J. Eq. 495; Luther v. Winnisimet Co. 9 Cush. 171; Hubbard v. Bell, 54 Ill. 110; Wadsworth v. Smith, 11 Me. 281; American Water Co. v. Amsden, 6 Cal. 443; Veasie v. Dwinel, 50 Me. 479.
    When a stream is not meandered, the presumption is that it is not navigable: Clute v. Briggs, 22 Wis. 607; Hubbard v. Bell, 54 Ill. 110.
    Ho case is made for an injunction: Laney v. Jasper, 39 Ill. 46; Stetson v. C. & E. R. R. Co. 75 Ill. 74; P. & I. R. R. Co. v. Schurtz, 84 Ill. 135; Dunning v. City of Aurora, 40 Ill. 481; Bliss v. Kennedy, 44 Ill. 81; Wahle v. Reinbach, 76 Ill. 322.
   Bailey, J.

In this case, the plaintiffs in error and two others, being the owners in fee of a portion of lot six, block one, in Canal Trustees’ subdivision of Sec. 29, T. 39, K. B. 14, in the city of Chicago, fronting on a branch arm of the South Branch of the Chicago Biver, known as the Healy Slough, exhibited their bill in chancery in the Circuit Court of Cook county, against the Joliet and Chicago Bailroad Company, and the Chicago and Alton Bailroad Company, to compel the removal of a permanent bridge, constructed and maintained by said railroad companies across said arm or branch of the" river, and the erection and maintenance of a draw-bridge in lieu thereof. On the hearing of the cause in the court below, on bill, answers, replication and proofs, the bill was dismissed at the cost of the complainants for want of equity.

The record shows that the south branch of the Chicago Biver, at the mouth of the Healy Slough, runs in a direction nearly east and west, and that the Healy Slough, from its point of confluence with the river, extends in a southerly direction to a point a half of a mile or more south of the premises owned by the complainants. The track of the railroad, now used and occupied by the Chicago and Alton Bailroad Company, runs nearly parallel with the river, and crosses Healy Slough by means of the bridge in question, at a point three hundred and eighty-three feet from the river. Two hundred' and eighty-five feet south of the railroad track, Archer avenue, one of the public streets of Chicago, also running nearly parallel with the river, crosses Healy Slough by means of a permanent bridge. The premises owned by the complainants comprise the land lying between the railroad and Archer avenue, fronting‘on the easterly side of the slough.

The complainants are the heirs-at-law of one Bobert Healy, deceased, and derive their title to said premises from him by descent. Eobert Healy acquired the right of pre-emption to said premises in 1837, and afterwards purchased the same from the Canal Trustees, who, by deed dated June 15, 1855, conveyed said premises to him in fee. Said Eobert Healy continued to own the same until his death, which occurred in April, 1871, whereupon the title descended to and became vested in the complainants.

The Joliet and Chicago Eailroad Company was created by an act of the General Assembly, approved February 15, 1855, and authorized to locate and construct a railroad from Chicago to Joliet. By said act it was provided that whenever it should be necessary for the construction of said railroad to intersect or ci’oss any water-course, it should be lawful for the corporation to construct its railroad across or upon the same, provided the corporation should restore the water-course thus intersected to its former state, or in a sufficient manner not to have impaired its usefulness. Said company, shortly after its creation, proceeded to locate and construct the railroad in question, and completed the same within two or three years thereafter. As originally constructed, the ■ railroad crossed Healy Slough by means of a draw-bridge, capable of being turned upon the approach of vessels, so as to admit of the passage of the same along said slough. This bridge was maintained and operated until some time in 1864, when it was removed and the present immovable bridge erected in its place.

The Chicago & Alton Eailroad Company was incorporated under an act of the General Assembly, approved February 18, 1861, and on or about January 1, 1864, said company obtained from the Joliet & Chicago Eailroad Company a perpetual lease of its said railroad, including the bridge in question, under which lease the said Chicago and Alton Eailroad Company has since that time held possession of and operated said railroad.

The complainants, by their bill, insist that the Healy Slough is a navigable stream or water-course, and a common highway, to which the bridge in question is an unlawful obstruction. Eelief is asked -upon two distinct grounds. It is insisted, first, that the bridge being an unlawful obstruction to a common highway, is a public nuisance, from which the complainants, as riparian proprietors, sustain special and peculiar damages; and, secondly, that the water-course thus crossed by the railroad, not being restored in such a manner as not to have impaired its usefulness, the bridge is erected and maintained in violation of the express mandate of the statute, from which the authority to construct and maintain it is derived. As the record discloses no material respect in which said watercourse has not been restored to its former usefulness, except so far as relates to its capability of being utilized for purposes of navigation, both of the grounds for relief set up in the bill involve a consideration of one and the same question, namely, whether said water-course is, in point of fact, a navigable stream.

It may be remarked that none of the streams or water-courses within this State are navigable in the sense of the common law. Ho rivers, by the common law, are navigable above the ebb and flow of the tide; and as this State is situated many hundred miles above the highest point at which the tide ebbs and flows in the Mississippi and St. Lawrence, to which all our waters are tributary, it is manifest that the classification of waters into navigable and non-navigable by the common law rule, at least so far as relates to the public easement, can have no application here. In the case of The Daniel Ball, 10 Wallace, 557, the Supreme Court of the United States says: “ The doctrine of the common law as to the navigability of waters, has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all, of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide; and from this circumstance tide-water and navigable water there signify substantially the same thing.. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as-they are below the limits of tide-water; and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must therefore be applied to determine the navigability of our rivers, and that is to be found in their navigable capacity.”

The .rule applicable to the \yaters of this country is stated in the same case, as follows: “Those rivers must be regarded as public, navigable rivers in law, which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

In like manner the Court of Appeals of New York, in Morgan v. King, 35 N. Y. 454, lays down the rule as follows: “ The true rule is, that the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting in a condition fit for market the products of the forest or mines, or of the tillage of the soil upon its banks. If it is so far navigable or floatable in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported.”

It is conceded that the Chicago River, including the South Branch of said river, to a point considerably above the mouth of the Healy Slough, is a navigable stream within the rules of law recognized in this country. Indeed, during the whole commercial history of Chicago, this river and its branches have been the channel through which the commerce of the Great Lakes has reached the wharves, docks and warehouses of the city. Whether the Healy Slough is navigable in such sense as to constitute it a common highway, must depend upon its capabilities in its natural state, and ordinary volume of water, of being utilized for the proposes of commerce or transportation. This presents a mere question of fact, to be determined by the evidence in the record.

The testimony in the case relating to this question is voluminous, and we do not deem it necessary to examine it in detail. A large number of witnesses are examined who have been acquainted with this water-course, and some of them are able to describe its condition at a period as early as the year 1834. It appears substantially without contradiction, that in its natural state it partakes partly of the nature of a stream of water, draining a considerable extent of the adjacent country, and partly of the nature of a bayou or arm of the river, receiving its supply of water from the river itself. The witnesses describe it as having a well-defined course, outlines and banks, with a hard bottom, and filled with clear water, well stocked with fish, and having a nearly uniform depth of from four to six feét, and a width of from eighty to one hundred feet, all the way from its mouth to the vicinity of a certain stone quarry, situated a considerable distance above the complainant’s premises. There is some conflict, it is true, as to the depth of the water—some of the witnesses placing it at less than is here stated, and others making it still deeper; yet the witnesses who seem to have been' most familiar with the stream in its original condition, and whose observations and measurements were taken before the character of the channel had been disturbed or altered by the city improvements, and whose testimony is, in our opinion, most satisfactory, sustain the conclusion that originally its depth was at least as great as stated above.

One of the witnesses testifies, that from the latter part of July to some time in September of the year 1834, for a period of about six weeks, he was engaged in boating stone from the stone quarry, which is situated near the banks of the Healy Slough and from sixty to one hundred rods from its mouth, employing, in such transportation three boats, two of them scows—one sixty and one seventy feet in length, and carrying, one six and the other seven cords of stone. The other boat was an “ ark,” as the witness denominates it, being a boat seventy feet long and thirty feet wide, and carrying ten or twelve cords of stone. These loads of stone were transported by the witness down the Healy Slough, and thence down to the mouth of the Chicago Biver, and used in the construction of the piers then being erected at that place. During all' this time the witness made one trip a day with his boats, from the mouth of the Chicago Biver to the stone quarry and back, and sometimes more. It does not appear that while these transactions were going on the stage of water in the river was higher than ordinary, and the witness is of opinion that it was not. There is other testimony tending to show that at various times, from the year 1834 up to the time of the erection of the bridge complained of, this stream was actually used to some extent for purposes of navigation.

The facts thus proved, we think, fully'warrant the conclusion that the water-course in question, in its natural state and ordinary condition, was susceptible of being advantageously used for purposes of transportation by water. This conclusion cannot be successfully met, by the fact that the stream has never been actually used for that purpose to any great extent. The public easement depends, not so much upon actual user, as upon the capabilities of the stream for advantageous use as a public highway. Very much weight also is due to tile fact that the stream is immediately connected with that very important highway of commerce, the Chicago River. While its natural adaption to purposes of navigation is not thereby affected, the necessity of supporting the public claim to its use is greatly enhanced.

The record shows that since the building of the railroad, that portion of the stream in question lying between the railroad and Chicago River has been widened and deepened, so that it now serves as a slip, in which vessels from the lake are run for the purpose of being loaded and unloaded. That portion in front of complainant’s premises has in like manner been excavated, and is now capable of serving the same useful purpose were the obstruction caused by the bridge removed, and the widening and deepening of the stream carried across the right of way belonging to the railroad company. The interests of the complainants injuriously affected by the obstruction, as will be seen, are of very considerable value, and their damages are of such special and peculiar nature that we think a case is made_ out for equitable interference on their behalf.

The charter of the defendants give them a right to construct tlieir railroad across this water-course only on condition that the same should be restored to its former state, or in such manner as not to impair its usefulness. This condition not having been fulfilled, the bridge is both a public and private nuisance, as much as though it had been erected without legislative license or authority. The charter is a sufficient warrant for the erection and maintenance of the bridge only when the bridge is erected in accordance with its terms and conditions.

The decree of the court below will be reversed, and said court directed to enter a decree requiring said defendants within ninety days after the entry of such decree, to remove said bridge, and restraining them from erecting in place thereof any other bridge which shall not be so constructed as to admit of the free passage of boats and vessels along the water-course in question across the right of way of said defendants, such decree to be otherwise not in conflict with this opinion.

Decree reversed.


author: Pleasants, J.

text:
    The Village of Hyde Park v. Horace F. Waite et al.
    Assessment under defective ordinance—Curative ordinance.— Judgment on a special assessment for laying water pipes was refused on account of a defect in the ordinance. Another ordinance was subsequently passed to cure the defect in the first, and a new assessment made. Held, that the decision of the court refusing judgment on the first assessment was not res adjudicata; that while the last ordinance was thought to be made necessary by what was held to be a defect in the first, yet as authority for the new assessment it was wholly independent of the first, and the proceedings under it were de novo as to the objectors In neither case was the question of power involved, and hence the first judgment could not be a bar to the second.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, judge, presiding.
    Hr. O. H. Willett, for appellant;
    that the doctrine of res adjudicata does not apply, cited Chicago v. Ward, 36 Ill. 9; Stillwell v. The People, 49 Ill. 45; Forsyth v. Chicago, 62 Ill. 304; Union Bld’g Ass’n v. Chicago, 61 Ill. 439; Phillips v. Quick, 68 Ill. 324; Wadams v. Gray, 73 Ill. 415; Wells v. Chicago, 66 Ill. 280: Rev. Stat. 1874, 239, §46; Cooley on Taxation, 322.
    The second assessment was in accordance with the statute: Rev. Stat. 1874, 239, § 48; Chicago v. Ward, 36 Ill. 9; Union Bld’g Ass’n v. Chicago, 61 Ill. 439; Harrison v. Chicago, 61 Ill. 459; Wells v. Chicago, 66 Ill. 280; Bickets v. Hyde Park, 85 Ill. 110.
    A new trial should have been granted: Bills v. Stanton, 69 Ill. 51; Chicago West Div. R’y Co. v. Chicago, Sup. Ct. Ill. Sept. T. 1877.
    Where the trial is by the court without a jury, a motion for new trial need not be made: Metcalf v. Fents, 27 Ill. 110; Mabury v. Davis, 44 Ill. 288; Jones v. Buffum, 50 Ill. 277; Smith v. Gillett, 50 Ill. 290; Mendota v. Fay, 1 Bradwell, 418.
    One owner cannot make objections for another: Ottawa v. Marcy, 20 Ill. 420.
    The ground of objections should be specified: Smith v. Chicago, 57 Ill. 497; Jerome v. Chicago, 62 Ill. 285; Purington v. The People, 79 Ill. 11.
    The judgment of the court upon the question of benefit to property assessed not being appealed from, that question cannot be raised in this court: Cushing v. The People, Sup. Ct. Ill. 1876; Lehmer v. The People, Sup. Ct. Ill. 1876.
    Mr. John Wilson and Mr. J. W. Wattghop, for appellees;
    cited Union Bld’g Ass’n v. Chicago, 61 Ill. 439; Chicago v. Wright, 80 Ill. 479.
   Pleasants, J.

Under an ordinance passed January 4,1876, directing that certain wafer pipe “ be laid and constructed ” along one of its streets as therein particularly set forth, the village of Hyde Park levied a special assessment, which the County Court confirmed by default as against the property of all parties concerned except the appellees. Upon their objection its confirmation was refused as to them, and judgment was entered in their favor for costs, “ upon the sole ground that 2874- feet of cast-iron water supply pipe mentioned in said ordinance had been laid prior to the passage of said ordinance.”

From this judgment an appeal was prayed and allowed, but afterwards withdrawn “ by order of the County Court, without prejudice, to make a new assessment.”

In December following another ordinance was passed, reciting the former one, the proceedings under it, the completion of the work as described, and the failures to collect a portion of the assessment, ordering a new assessment upon the delinquent property for the amount of the deficiency, and appointing commissioners to make the required estimates. Said commissioners accordingly reported the actual cost of the work and of the original assessment therefor, of the work alone, the amount of the deficiency, and the estimated cost of the new assessment.

Upon the petition of the village the County Court then appointed commissioners to make the new assessment, who duly certified and filed their roll, showing how much of this deficiency and estimated cost was levied upon the village and upon the delinquent property respectively.

To the confirmation of this assessment also numerous objections were interposed on behalf of the appellees, of which, however, the following only is here in question:

“ There has already been an assessment for this identical work, and the same presented to this Court for confirmation, and confirmation thereof was refused by this Court, and that judgment was and is final and conclusive in this case; and the said village is estopped from proceeding, except on the record of the former proceeding and judgment, from which they should have taken an appeal.”

The County Court overruled it, but the Superior Court sustained it, and gave judgment against the village, from which the latter appealed.

Was the objection valid? The argument in support of it is based on the assumption that the issue in the County Court, upon the application for confirmation of the first assessment, was upon the power of the village to assess for an improvement in part made before the passage of the ordinance; and the position taken is that the finding for the objectors on that issue, whether right or wrong, must be conclusive against every attempt to assess for this improvement until it shall be reversed in a direct proceeding.

We find in the record no sufficient warrant for this assumption. As already stated, the ordinance described the improvement for which it directed the assessment as certain pipe to be laid, while the proof showed that a portion of that for which the assessment was made had been laid. And upon this ground alone the court refused the confirmation; but whether because it adjudged, as matter of law, that the village liad no power to assess for such an improvement, or that such an improvement was not what was described in the ordinance under which the assessment was made, does not appear. We are not to assume the former, especially since the Supreme Court had declared the law to be to the contrary. Rickets v. The Village of Hyde Park, 85 Ill. 110. If the latter, the infirmity was cured by the last ordinance. The issue on the application for confirmation of the first assessment was upon the sufficiency of the first ordinance and of the proceedings under it, as on the application for confirmation of the new assessment it was upon the sufficiency of the last ordinance, and of the proceedings under it.

While the last ordinance was thought to be made necessary by what was held to be a defect in the first, yet as authority for the new assessment it was wholly independent of the first, and the proceedings .under it were da novo as to the objectors. In neither case was the question of power involved, and hence the judgment on the first application could not be a bar to the second. The City of Chicago v. Ward, 36 Ill. 9; Laffin v. The City of Chicago, 48 Ill. 449; The Union Building Assoc’n v. The City of Chicago, 61 Id. 446; Wells v. The Same, 66 Id. 283.

We express no opinion upon any other question suggested, by counsel here, because we do not see that any other was passed upon by the ¡Superior Court; but for what we deem its error in the particular above stated, we reverse the judgment and remand the cause.

Reversed and remanded.


author: Davis J.

text:
    Catharine Wheelan v. Ellen Fish.
    1. Forcible detainer—Demand for possession.—Under the statute relating to forcible detainer the party claiming the right to possession must show not only that she is entitled to the possession, hut that the defendant unlawfully withholds such possession after demand made. So, where appellee claimed the right to1 possession by virtue of á sale under a foreclosure against the husband of appellant, she being also a party defendant in the foreclosure proceedings, it was held that appellee had brought herself within the provisions of the statute, except that she did not make demand and commence proceedings against the husband and wife, who were both parties to the foreclosure, and were both in possession of the premises.
    2. Demand upon wife—Legal possession in husband.—When the trust deed through which appellee acquired her rights was executed, the husband was seized in fee of the premises, and the wife joined in the conveyance only to pass her right of dower and homestead. The husband was then legally in possession, and it appears that such possession has continued—the husband and wife occupying the premises as their joint home. While the marital relation continued, the possession was that of the husband, and the wife had no right, and could not he required to give up that which did not belong to her; she had no possession to surrender, and hence a demand for possession upon her alone was not sufficient to base an action of forcible detainer, and a separate action cannot he maintained against her.
    8. Trying title in this action.—Upon the trial, appellant offered to show that subsequent to the sale to appellee, the premises in suit had been conveyed to appellant by sheriff’s deed, based upon a sale upon execution against her husband. This evidence was refused—the court below very properly refusing to allow the validity of title to the land to be tried in this proceeding.
    Appeal from the Circuit Court of Macoupin county; the Hon. C. S. Zane, Judge, presiding.
    Mr. Balfour Oowen and Mr. Horace Gwin, for appellant;
    contending for the right to show an outstanding title in appellant, and that such title did not enure to her grantor, she having signed the trust deed only to pass dower and homestead, cited Strawn v. Strawn, 50 Ill. 256; Botsford v. Wilson, 75 Ill. 132; Oglesby Coal Co. v. Pasco et al. 79 Ill. 164; Gonzales v. Hukil, 49 Ala. 260; Jackson v. Vanderheyden, 17, Johns. 167; Herman on Estoppel, 433; 20 Am. R. 282.
    Mr. J. G. Kobster, for appellee.
   Davis J.

This was an action of forcible detainer, commenced by Ellen Fish against Catharine Wheelan, a married woman, to recover the possession of a tract of land described in the complaint filed in this case.

The record discloses that in June, 1873, James Wheelan, and Catharine his wife, the appellant, executed their deed of trust to Henry Fish for the land in controversy to secure the payment of a promissory note made by the husband, for $500, due one year after date.

After the maturity of the note, the appellee obtained a decree in chancery at the December term, 1875, of the Macoupin Circuit Court against the said J ames Wheelan and Catharine, his wife, for the foreclosure of the deed of trust. Under that decree the land was sold by the master in chancery, and after the expiration of the time to redeem, a deed was executed by him to the appellee, who was the purchaser at the sale, conveying to her the land in dispute. Afterward, and before the commencement of this suit, the appellee demanded of the appellant the immediate possession of the land so purchased by and conveyed to her.

Upon the trial below, the appellant attempted to show that after the execution of the deed of trust, and after the master in chancery had executed his deed to the appellee for the land in controversy, the same was conveyed to the appellant by Seymour C. Wilcox, who had, on the 30th day of May, 1876, received a conveyance of the same from the sheriif of Macoupin county, under a sale on execution issued on a judgment obtained against the said James Wheelan at the August term, 1870, of the Circuit Court of Macoupin county. But the court very properly refused to permit the appellant to make such defense, or in any manner to try the validity of the title in this proceeding..

On the case made by the appellee, the court below found in her favor, and gave judgment that she recover the possession of the premises, and that she have a writ of possession therefor. In so finding and giving judgment for the appellee we think the court erred.

This proceeding was based on the sixth clause of section 2 of chapter 57 of the Revised Statutes of 1874, entitled “Forcible Entry and Detainer,” which provides, “ that the person-entitled to the possession of lands or tenements maybe restored thereto when land has been sold under the judgment or decree of any court in this State, or by virtue of any sale made under any power of sale in any mortgage or deed of trust contained, and the party to such judgment or decree, or to such mortgage or deed of trust, after the expiration of the time of redemption, when redemption is allowed by law, refuses or neglects to surrender possession thereof, after demand in wilting by the person entitled thereto, or his agent.”

The appellee brought herself within the provisions of this-act in all respects, except that in making a demand and commencing her proceeding to recover possession, she did not make that demand and commence the proceedings against the husband and wife, who were both parties to the chancery cause in which the decree of foreclosure was obtained, and were both in possession of the premises claimed by appellee.

Under this statute, to enable the appellee to recover she must show, not only that she was entitled to the possession, but that the appellant unlawfully withheld that possession on demand made. When the trust deed was executed, James Wheelan, the husband, was seized in' fee of the land, and it was given to secure the payment of a debt due by him alone, and the wife joined in the conveyance only to pass her right of dower and homestead in the land.

At that time the husband was legally in possession of the premises; and while it is not. shown directly that he was occupying them as his home, it does appear from the whole case that the husband and wife were then living together upon the premises, and have since occupied and enjoyed them as their joint home.

While the husband was thus living there in his own home, the wife surely had the right to live with him, and that right could not be disturbed while the marital relation existed between them.

When the demand of the appellee was made on the appellant "for the possession of the premises, the appellant had no possession to surrender. The possession was that of the husband, and the wife had no right, and could not be required, to ¿give up that which did not belong to her. The husband being legally in the possession of the premises in controversy, and -the wife being there with him, as she had the right to he, she -.did not unlawfully withhold the possession of the premises on demand made, and the separate action against her cannot be -maintained. The judgment against her must he reversed.

Reversed and remanded.


author: Lacey, J.

text:
    Charles M. Bodley v. Lewis Anderson.
    1. Chattel mortgage—Right to hold property—Maturity oe debt.—Appellant took possession of certain personal property by virtue of a chattel mortgage, acting as the agent of the holder of the note. An action of replevin in the detinet was brought by appellee, for the recovery of the property. The court, at the request of appellee, instructed the jury that if they found that at the time possession was taken of the property, the note and mortgage had not matured, they should find for appellee; and further instructed them to the effect that a note was not due until three days after the day expressed on the face thereof. Held, that neither of these facts were material to the issue, this being an action in the delinet, for at the time of bringing this suit the note and mortgage had long since matured.
    2. Indemnity fob existing debt—Payment of original debt.—A note and chattel mortgage were made to indemnify C. for becoming security on a note payable to W. Both the original and indemnifying note and mortgage were endorsed by W. to L., with the understanding that he would sell the property and apply the proceeds to the payment of the original note. Held, that L. could hold the property described in the mortgage; that the original note, and note and mortgage having become united in the same per: son, a collection on the latter satisfied the former pro tanto; that it was immaterial whether C. first paid off the original note and then foreclosed the mortgage, or turned the note and mortgage over to L., who held the original note.
    Appeal from the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding.
    Mr. C. H. Wood, and Messrs. Okay & Swan, for appellant;
    that the instructions given for appellee were erroneous and misled the jury, cited Ill. Cent. R. R. Co. v. Cassell et al. 17 Ill. 389.
    The court must give construction to the contract; the jury are to find the fact of a contract having been made: McAvoy v. Long, 13 Ill. 147; Sigsworth v. McIntyre, 18 Ill. 126; Mitchell v. Fond du Lac, 61 Ill. 174.
    The right of possession, not of ownership, was put in issue by the pleadings: Warner v. Matthews, 18 Ill. 83; Hinckley v. West, 4 Gilm. 136.
    The mortgage had matured and the legal title vested in the mortgagee, and he had a right to hold the property: Simmons v. Jenkins, 76 Ill. 479.
    If the action of replevin he defeated solely because prematurely brought, a judgment retorno will not he ordered: Martin v. Bagley, 1 Allen, 381; Hilliard on Remedies for Torts, 82.
    The question of damages should have been passed upon by the .jury: Austin v. The People et al. 11 Ill. 452.

      Mr. A. Sample, for appellee;
    that the same defense could he interposed against the assignee of the mortgage that could have been against the mortgagee, cited Herman on Chattel Mortgages, 429; Olds v. Cummings et al. 31 Ill. 189; Barbour et al. v. White et al. 37 Ill. 164; Petillon v. Noble, 73 Ill. 567.
    A surety to whom a mortgage is given as indemnity, or his assignee, cannot foreclose it, not having paid the debt: Darst v. Bates et al. 51 Ill. 439; Bonham v. Galloway et al. 13 Ill. 68; Sheppard v. Ogden, 2 Scam. 257; Cornwell et al. v. McGowan et al. 53 Ill. 365; Lewis v. Richey, 5 Ind. 152; 1 Hilliard on Mortgages, 344; Sheppard v. Sheppard, 6 Conn. 37.
    Where the action is not maintainable in any view of the evidence, the judgment will not be reversed: Mann v. Brady, 67 Ill. 95; Peoria Ins. Co. v. Frost, 37 Ill. 333.
    Error in instructions will not reverse if it is apparent that on a re-trial the verdict must be the same: McConnel v. Kibbe, 33 Ill. 176.
   Lacey, J.

This was an action of replevin, commenced by the appellee against appellant in the Ford county Circuit Court, March 1, 1877. The declaration was filed in the detinet, and plea of non detinet. Also there was a special plea filed by the appellant, that he took the goods described in the declaration as the agent of Joseph Loose, by virtue of a chattel mortgage executed by Lewis Anderson and Peter Peterson to Emanuel Collins to secure a note of $1,100, due Feb. 16, 1877, and that the note was indorsed by Collins to Jos. S. Loose.

Special replication to said plea, being second replication, i. e., that the note was given to indemnify Collins for signing a note as security for the makers of the mortgage to George Wright; and that said Collins had never paid the note. A demurrer was overruled to this replication.

It appears from the record that the cause was tried by a jury, who found verdict for appellee—“ We, the jury, find for plaintiff.” A motion was made by appellant for a new trial, which was overruled, and the court rendered judgment finding the property in the appellee, and ordering a return.

The court gave second and third instructions for appellee in substance; 2d. That if the note described in the mortgage (given to Collins) did not mature till the 19th day of February, A. D. 1877, and that appellant took possession on the 17th day of February, A. D. 1877, then the jury would find for plaintiff.

3d. That promissory notes in this State have three days of grace; that in law a note was not due until three days after the day expired on the face of the note.

On the trial of the cause a note, as the evidence showed, signed by appellee and Peter Peterson, payable to Emanuel Collins, for the sum of $1,100, due Feb. 16,1877, dated August 16, 1876, also chattel mortgage in the usual form, signed by the makers of the note, duly executed and recorded, for the property in question, given to Collins to secure the note, were in evidence.

The evidence showed that the only consideration of the note and mortgage was for indemnification to Collins for signing with them, as security, a note dated August 2, 1876, to said Wright, due in six months after date, for $816, drawing 3 percent. interest per month, and for $80 attorney’s fee.

The principal note, payable to Wright, had been indorsed to said Loose, and Loose had recovered a judgment, and had execution issued thereon, and afterward, about the time the note made payable to Collins became due, he indorsed that note, to Loose also, with the agreement with Loose that he would sell the property and make it bring as much as he could, and apply the proceeds in discharge of the judgment rendered on the Wright note.

■ The Collins note and mortgage was then by Loose put into the hands of appellant for the purpose of taking the property into possession — which appellant did on the 16th or 17th of Feb. 1877.

The giving of the second and third instructions for appellee the appellant assigns for error.

According to these instructions the jury was compelled to find for appellee, as the evidence was clear that either the note and mortgage had not matured, or that the three days of grace had not run when appellee took possession of the property.

Heither of these facts were material to the issue, for at the time this suit was commenced the note and mortgage had long since matured, and the appellee had a perfect right to retain the goods under the mortgage. This was an action in the detinet, and even were it an action in the oejpit there could be no return of the property. Simmons v. Jenkins, 76 Ill. 479.

But it is claimed by appellee’s counsel that Loose nor his agent, the appellee, would have a right to take possession of the property or forclose the mortgage until Collins had paid off the debt for which he was security; and various authorities are cited to support this position — especially the case of Bonham v. Galloway et al. 13 Ill. 68.

In that case, the mortgage sought to be foreclosed was given on real estate, and the condition contained in it was, that in-case the security was kept harmless, the mortgage was to be void, otherwise the condition was broken. The condition according to its terms was not broken, and the complainant had no right to foreclose it until he had paid the debt.

In this case the condition of the mortgage is quite different. By its terms, when the $1,100 note mentioned in it became due, then the condition was broken, and the mortgagee had a right to, and must take possession of the mortgaged property, or lose his security. This was the contract appellee had made.

In addition to this, the Wright note and the Collins note and mortgage had united in one and the same person — any collection on the latter satisfied the former to that extent. Hence appellee would be saved from loss. By the collection of the Collins note and mortgage the Wright note would also be satisfied.

The agreement between Collins and appellee was, that the former, in signing the latter’s note as security, was to be kept harmless; he was only to pay if appellee did not.

It was a matter of indifference to appellee whether Collins first paid off the Wright note, and then by virtue of the chattel mortgage took possession of the property and foreclosed it, or turned the note and mortgage over to Loose, the holder of the Wright note, in the first instance.

The mortgage note was assignable, and when turned over to the holder of the Wright note and was collected, it paid the debt of appellee, and relieved Collins from the very burthen he had agreed should never be imposed upon him.

As the second replication to the second special plea set up no legal bar to that plea, the demurrer should have been sustained to it. The court below should have granted anew trial.

For the above reasons the cause is reversed and remanded.

Reversed and remanded.