text:
    Jacob Schiek et al. v. Trustees of Schools of Township, etc.
    1. Official bond — Sureties signing — Breach of condition.— Where sureties sign an official bond which the statute requires the principal to execute, and permit their principal to take it under the agreement and condition that he shall sign it before delivery, and they give no consent that it shall he delivered without his signature, the sureties would not he bound by such bond if it were delivered by the principal without signing, and accepted by the obligees in violation of such condition.
    2. Burden of proof. — Where an official bond, signed by sureties, bub not signed by the principal, who is required by the statute to execute it, is accepted by the obligees, the burden is upon the obligees to show that the sureties expressly consented to its delivery without its being executed by the principal.
    3. Implied authority. — It can not be said, in such case, that the possession of the obligation by the principal is an implied authority to deliver it in such condition.
    Appeal from the Circuit Court of Will county; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed February 5, 1885.
    Messrs. Hill & Dibell and Messrs. Haley & O’Donnell, for appellants;
    that where the name of an intended co-obligor appears on the face of a bond, who has not executed it, the bond is incomplete and not a binding instrument, cited Curtis v. Moss, 2 Rob. 367; Villers v. Brognier (La.), 3 Mart. O. S. 349; Wells v. Dill, 1 Mart. (La.), N. S. 592; Fletcher v. Light, 4 Bush (Ky.), 303; Smith v. Moberly, 10 B. Mon. 266; Hall v. Smith, 14 Bush, 604; Sharp v. U. S., 4 Watts (Pa.), 21; State Bk. v. Evans, 3 J. S. Green (15 N. J.), 155; Deordorff v. Foreman, 24 Ind. 481; Webb v. Baird, 27 Ind. 368; Dair v. U. S., 16 Wall. 5; Evans v. Bainbridge, 34 E. L. 397; Wood v. Churn. 18 Gratt. (Va.), 801; Nash v. Fugate, 24 Gratt. 202; State v. Potter, 16 Am. Law Reg. N. S. 170; Fletcher v. Baxter, 11 Vt. 447; Hall v. Parker, 37 Mich. 590; Johnston v. Kimball Township, 39 Mich, 187; City of Chicago v. Gage, 95 Ill. 618-620; Cawley v. People, 95 Ill. 258; Allen v. Marney, 65 Ind. 398; Rhode v. McLean, 101 Ill. 472.
    As to non-execution by the principal: 2 Pothier on Obligations, Ch. 6, § 1, p. 365; 1 Theobald on Principal and Surety, 1; Curtis v. Moss, 2 Rob. (La.), 367; Ferry v. Burchard, 21 Conn. 602; Martin v. Thomas, 24 How. 315; Bean v. Parker, 17 Mass. 603; Wood v. Washburn, 2 Pick. 24; Russell v. Anable, 109 Mass. 72; Hall v. Parker, 37 Mich. 590; Bunn v. Jelmore, 10 Cent. L. J. 137; Knight v. Hurlbut, 74 Ill. 133.
    Mr. James Frake and Mr. B. W. Ellis, for appellees;
    that where a bond is required and the form is prescribed by statute, and the bond is voluntary, if the exact statutory form is not followed, the bond will still be obligatory, cited Pritchett v. People, 1 Gilm. 525; Fournier v. Faggott, 3 Scam. 347; Ballingall v. Carpenter, 4 Scam. 306.
    And if not good as a statutory bond it will still bo binding as acommon law obligation: Coons v. People, 76 Ill. 383; Richardson v. People, 85 Ill. 495; Board of Education v. Fonda, 77 N. Y. R. 350.
    A bond is none the less obligatory upon those who sign it because others whose names are Avritten in the body of the bond do not sign it: Burger v. Belsley, 45 Ill. 72; Keys v. Keen, 17 Penn. 330; Haskins v. Lumbard, 16 Me. 142; Scott v. Whipple, 5 Greenleaf, 336; Cutter v. Whitmore, 10 Mass. 444.
    The surety is none the less bound, because the one whose name was in the body of the bond, but who did not sign, Avould have been the principal in the bond: Loew v. Stocker, 68 Penn. 326; State of Ohio v. Bowman, 10 Ohio, 445; Miller v. Turnis, 10 Upper Canada, 423; Williams et al. v. Marshall, 42 Barb. 524; Herrick v. Johnson, 11 Metcalf, 34; Adams v. Bean, 12 Mass. 139; Parker v. Bradley, 2 Hill, 584; Wild Cat Bank v. Ball, 45 Ind. 213; Comyn’s Digest, title Bail, 92.
   Pillsbury, J.

Action in debt against the appellants as sureties upon the bond of one Philip Reitz, a defaulting town treasurer, by the trustees of the township, with a recovery for §4,627.08.

The bond was in the usual form with the penalty of $60,-000, the name of the treasurer being inserted in the obligatory part of the bond as well as in the condition of it, but the bond was not signed by him. The defense of the sureties is, that the bond is not binding upon them as it is incomplete without the signature of the principal thereto, as he is recited as being the principal, and the trustees should not have accepted the bond in such condition without inquiring whether the sureties assented to being bound by it without he was also bound with them. They also set up that when they signed the bond it was upon the condition that it should not be delivered to the obligees until he had executed it with them.

The existence of such a condition imposed by the sureties upon Reitz, and his assent thereto at the time the bond was signed by them, is clearly established by the proofs, and was also found by the court below, as appears from the special findings of facts incorporated in the record.

At the time Reitz presented the bond for approval to the board of trustees it was read over by them, and one of them noticed that Reitz had not signed it but supposed it was not necessary he should do so, as his name appeared in the body of the bond.

It also appears from the evidence that Knapp, one of the trustees, was present when some of the sureties signed the bond, and then heard of the condition that Reitz was to sign it before it should be delivered.

There is no proof in the record that these appellants ever consented to the delivery of the bond or to being bound by its terms without the signature of Reitz, the principal.

This case has twice been before this court prior to the present appeal. The first timé a judgment against Reitz and his sureties xvas reversed because the bond was not executed by Reitz, who pleaded nonest factum verified, 3 Bradwell, 448, but no opinion was then expressed as to the liability of the sureties. Upon the case being remanded, the suit was dismissed as to Reitz and the declaration amended so as to declare against tire sureties alone, whereupon they demurred, and the court holding the bond void, the demurrer was sustained and judgment rendered for the defendant.

The declaration averring that the defendants, the sureties, delivered the bond as the official bond of Reitz, and was received by the trustees and approved by them as such, and the demurrer admitting this allegation, this court held, 10 Brad-well, 51, that “we must presume from the allegations of this declaration, and admitted by the demurrer to be true, that the defendants in this cause delivered said bond to the trustees, and such delivery was absolute and unconditional, intending to be bound without the signature of the principal thereto, and if they did so, in our opinion said bond is obligatory upon them. It was further said that “ we are not permitted to assume, in the present state of this record, that the delivery of this bond to the obligees was accompanied by any conditions or stipulations that Reitz was also to sign it before it should be binding upon the defendants as his sureties. Whether any facts exist in this case which will exonerate the defendants or show their non-liability upon the bond for want of delivery thereof, must be made to appear at a subsequent stage of the proceedings, by proper pleadings and evidence in the case.”

The judgment of the court below was therefore reversed and the canse remanded to the circuit court where a trial was had upon proper pleadings, denying the delivery of the bond and settingup the conditions above stated upon which Reitz was authorized to deliver the bond, resulting in a finding by the court, who tried the cause without a jury, in favor of the obligees and a judgment upon such finding from which the sureties appeal.

A further examination of the case has led ns to believe that the rule announced by us in 10 Brad well, 51, is the correct one, and should be applied even in cases of official bonds where the statute provides for the execution of such bond by the principal, and the evidence shows the sureties voluntarily assented to be bound by it without such execution by the officer.

The question however here presented is whether sureties who sign such bond and permit their principal to take it under the agreement and condition that he shall sign it before delivery, and who give no consent that it shall be delivered without his signature, are bound by it if it be delivered by the principal without signing, and accepted by the obligees in violation of such condition.

The effect of an agreement between a surety and his principal that before delivery of an obligation some other party shall become also an obligor therein, has frequently been before the courts for determination under varying circumstances peculiar to the particular case, and it must be admitted that the decisions even in analogous cases are not entirely harmonious.

It may perhaps be said that the more modern doctrine is, that any agreement between a surety and principal that other surety shall be obtained before the one signing shall be bound, will not avail as a defense if such bond be delivered in violation of such agreement to the obligee and there be nothing upon the face of the bond, nor in the attending circumstances, to apprise the obligee that such further signature was essential to complete the bond, as in such case the surety signing is estopped from denying that the principal had authority to deliver the bond as he had invested his principal with apparent authoritjr to do so. State v. Potter, 63 Mo. 212; State v. Peck, 53 Me. 284; Nash v. Fugate, 24 Gratt. 202; Deordorff v. Foreman, 24 Ind. 481; Daire v. United States, 16 Wall. 1; Smith v. Moberly, 10 B. Mon. 266.

All the cases, it is believed, quite agree that if the obligee when he accepts the bond had notice of such agreement or condition or of such facts and circumstances as would put a prudent man upon inquiry, the defense can be successfully interposed.

If lie had actual notice it is clear he would not be an innocen t holder, but in the absence of such notice, what facts and circumstances should be held as equivalent thereto has been a fruitful source of litigation and has led to a contrariety of decisions in the courts of the several States.

The most common form in which the question of constructive notice has come before the courts appears to have risen upon the face of the obligation itself, as where more persons are named in the body of it as obligors than sign it, and the sureties signing it'set up the defense that such named co-sureties were also to sign before delivery. In such cases many courts have held that it was open to the defendant to show that the obligation was not to be delivered by the principal until the condition upon which he received it from the surety had been performed. Such defect in the bond or other obligation has been held sufficient to put the obligee upon inquiry whether those signing had consented to its being delivered without the signatures of the others named in it as co-sureties in the following cases:

Fletcher v. Austin, 11 Vt. 447; Pawling v. United States, 4 Cranch, 219; United States v. Leffler, 11 Pet. 860; Johnson v. Baker, 4 B. & A. 440; Mood v. Churn, 18 Gratt. 801.

And in others it is held that the bond was invalid upon its face as from such defect the law presumed that those signing did so upon condition that the other obligors were also to sign it, and as they did not do so the bond was not the obligation of those signing it: Curtis v. Moss, 2 Rob. La. 367; Wells v. Dill, 1 Mart., N. S. (La.) 592; Hall v. Smith, 14 Bush. 604; State Bank v. Evans, 3 J. S. Green, 15 N. J. 155.

On the.other hand equally respectable courts have held that the fact that one of a number of eo-sureti.es named in the body of the obligation does not sign it, is not in itself sufficient notice to let in proof of snch conditional delivery to the principal; that notwithstanding such defect, the obligee without any other notice has a right to rely upon the presumption that the surety, having entrusted the obligation to his principal, has by that act made him his agent to deliver it to the obligee in that condition, intending to be bound by.it without its execution by the others: Williams v. Marshall, 42 Barb. 524; Town v. Kellett, 11 Geo. 286; Grimm v. School Directors, 51 Pa. St. 219; State v. Lewis, 73 N. C. 138; Smith v. Board of Supervisors, 59 Ill. 412.

In this last case it was held, upon demurrer to pleas alleging that the defendant signed the bond upon the condition that it should also be signed by Cox as a co-surety (his name appearing in the body of the bond), and that Cox did not execute it, that the incompleteness of the bond in that particular was but evidence of notice and not conclusive in its character, and of itself was not sufficient to overcome the reasonable presumption that the actual authority of the principal was coextensive with the apparent authority conferred upon him by those signing, to act for them in the delivery of the instrument.

It is urged by appellee that this case has been overruled by the subsequent case of Chicago v. Gage, 95 Ill. 618, but an examination of that case we think will show that it is not to be treated as having that effect What was there said upon this point was in commenting upon cases holding a different rule from Smith’s case, and distinguishing such cases from that under consideration by the court, and instead of indicating any dissatisfaction with the former case it is expressly referred to by the court as an authority upon some of the questions arising in Gage’s case.

The holding of the court that “ the obligee was justified in assuming and acting upon the assumption that Gage really possessed the authority with which he was apparently clothed,” was a direct affirmation of the doctrine in Smith’s ease. And there are good reasons for saying that in case of non-execution of a bond by some of the co-sureties named in it, the rule held by our court is the just one, and more conducive to the preservation of public interest than the one that casts all the burden and loss upon the obligee, by declaring all such obligations invalid.

In the absence of any law fixing the number or qualifications of sureties to a bond, the obligee has no duty to perform in that regard and is not interested in determining who or how many shall execute it as sureties. His duty and interest only extends to seeing that the bond is sufficient to accomplish the purpose intended. It is immaterial to him who the sureties are so they are able to respond to their obligation. Hp to the time he accepts their bond the sureties are strangers to him, not having as yet entered into any privity of contract with him. He owes them no duty to see that their agent is not committing a fraud upon them by violating some secret agreement between him and themselves. He is not called upon to suspect the agent in whom they have reposed confidence.

Owing no duty to a surety to see that a co-surety also signs, he has a right to presume that the actual authority of the agent is measured by his apparent authority.

But are the same presumptions to be indulged in where the principal is the one who has omitted to execute the bond? And especially in cases of official bonds, where the official should, in obedience to the law, become the principal obligor therein, and the obligee, by virtue of the same law, has the duty imposed upon him or them of seeing that the law is complied with in that regard?' In such case has the obligee the right to assume that the surety intends to be bound by an obligation not signed by his principal? Has he the right to infer from the fact that the principal presents the bond for approval, that he is authorized to deliver it as the valid obligation of his sureties without the principal being also bound by it?

By our statute, Sec. 55, Ch. 122, Rev. St., the township treasurer, appointed by the board of trustees, is required to execute a bond with two or more freeholders who shall not be members of the board, as sureties, payable to the board of the township of which he is appointed treasurer, conditioned, etc., which bond shall be approved by the majority of the board at least, and shall then be delivered to the county superintendent, whose duty it is to carefully examine the same, and if found in all respects according to law, and the sureties good and sufficient, to approve the same; but if found in any respect defective he shall return it for correction. Sec. 15, Same Ch., B. S.

From these provisions of the statute it is clear that it is the duty of the principal to execute the bond, and the duty is imposed upon the board of trustees and the county superintendent of schools to see that he does so; for it must be admitted that without his signature thereto it is informal and defective.

The effect of non-execution of bonds by a principal, upon the rights of a surety thereto, has also passed in review before the courts, and. as in case of co-sureties, there is some conflict of opinion as to the liability of those signing the obligation. Thus in Bean v. ParkeT and others, 17 Mass. 603, a bail bond was held incomplete and void without the signature of the principal; and in Bussell v. Annable, 109 Mass. 72, the court went still further, and held that where the principal obligors constituted a firm and the bond was signed in the firm name, a surety thereon was not liable unless it be shown that the partner signing the firm name was authorized by his co-partner to thus sign and seal the obligation.

A bond purporting to be the obligation of an administratrix, but not signed by her, was adjudged void as to the sureties, in Wood v. Washburn, 2 Pick. 24. So in Terry v. Burchard, 21 Conn. 602, it is held, that the nature of an undertaking of a surety is such that there can be no obligation on his part unless there is an obligation on the part of the principal. In People v. Hartley, 21 Cal. 585, an official bond not signed by the principal was held a nullity as to the sureties.

In Bunn v. Jetmore, 70 Mo. 228, one Hazleton was elected constable. The statute of that State provided that before entering upon the duties of his office a constable should execute a bond with two or more sureties, etc., and it appearing that Hazleton had not signed the bond, although named in it as principal, it was held that the sureties, Jetmore and others, were not liable thereon, although the bond had been approved by the proper officials and Hazleton had acted under it. We might refer to other cases announcing the same rule, but it is not deemed necessary. Of course the courts which hold that the non-execution of a bond by contemplated co-sureties avoids the obligation as to other sureties signing, would for weightier reasons hold the same bond void when not executed by the principal.

When this case was before us on the former appeal, on the demurrer to the declaration, had we considered that the above cases correctly announced the rule as it should be held in this State, we should have affirmed the judgment of the court below", as it appeared upon the face of the declaration, that Reitz, although named as principal obligor, had not executed the bond; but, as it then appeared to us, there was no law preventing a party from binding himself in a penal bond, conditioned that a principal should perform certain duties without his principal being likewise bound, if he saw proper to voluntarily enter into such obligation and assume such responsibilities. That the obligation was not per se void, but whether the sureties were liable thereon, depended upon the proof of the fact alleged in the declaration, that they delivered it intending to be bound without the signature of Reitz thereto.

We therefore remanded the cause, that the plaintiff should have an opportunity of proving the averments of their declaration in that regard, and which they have not done, but on the contrary it is clearly established that it was not only expected but agreed, that before delivery the bond was to be signed by Reitz. We still think that the burden of proof was upon the plaintiffs to affirmatively establish by the evidence that the sureties delivered this bond intending to be bound in the absence of its being executed by Reitz.

The statute requires him to execute it as principal; it is recited in the body of the bond that he is such and bounden by it; by the statute the plaintiffs as well as the county superintendent of schools are charged with the duty of seeing that it conforms to the law, and in such case, the sureties signing have the right to presume that they will discharge their duty and not accept a bond, without their express consent, in "which he is not also bound with them. Fletcher v. Light, 4 Bush, 303.

When the obligee neglects a plain duty imposed by the statute he ought not to be permitted to- say in absence of proof supporting the assertion, that the surety lias voluntarily waived the performance of such duty upon his part.

An official bond not signed by a principal, who is required by statute to execute it, ought to raise upon its face the implication that the sureties signing it did so upon the assumption that the principal should also execute it and that the obligee would not violate his statutory duty by accepting it without its execution by him. Neither can it be said in such case that the possession of the obligation by the principalis an implied authority to deliver it in such condition; by intrusting the bond to him, signed by them, it can scarcely be said that they impliedly authorized him and the obligee to violate the law. The presumption arising can go no further than this, that when they have fulfilled their legal duty the bond shall be valid.

As we have said in case of co-sureties not executing the bond, the obligee is not bound to presume the agent of the sureties will violate his duty to them, so here the sureties are not bound to presume the obligee will violate his duty to the public and to them. We still believe the conclusion reached by us upon the former appeal, that the bond would be binding if it was shown that the sureties delivered it, intending to be bound by it, is the correct one, and founded upon better reasons than those cases holding the obligation void, thereby in effect precluding persons from making their own contracts when they are neither immoral nor illegal, and we are not without authority supporting our conclusion.

Sharp v. United States, 4 Watts (Pa.), 21, was a suit upon abend given under an act of Congress, requiring two sureties, and the bond was prepared for two who were named in if, but was signed by the principal and one surety, Sharp, only, and in that condition was delivered by the principal to the Obligee who accepted it. Sharp defended upon the ground that the act of Congress recited in the bond had not been complied with in having the other surety named in it also execute it, and it was held by the court, that though the act required two sureties, this provision could be waived by the parties, but when Sharp signed the bond with these names and a reference to the act in it, he had the right to believe that it should be taken in strict conformity with the act of Congress and that the other surety should also execute it; that his signature was conditional, and unless it could be shown that the condition — the execution of the bond by the co-surety — had been dispensed with by him, he had a good defense to the action. It was further said that “ unless the plaintiff can show that Sharp was informed that W. L. (the co-surety) had not signed the bond, and agreed that he alone would be liable, the plaintiff can not recover.”

The ease of Grim v. School Directors, 51 Pa. St. 219, does not, as is suggested, conflict with the above case. In the latter case the court noted a marked distinction between them; that in Sharp’s case the statute required two sureties, but in Grim’s case there was no law fixing the number of sureties, nor who they should be, and the bond was therefore held frima facie valid.

In Hall v. Parker, 39 Mich. 237, the suit was upon a cost bond reciting that L. H. was principal obligor, but was not signed by him, and the surety defended upon that ground and the court held, “ that there was no presumption that sureties had agreed to waive the signature of a principal whose name appeared as an obligor with theirs in the bond, and that, if such bond could be established as a liability against them without his signature, it could only be by positive proof that they had delivered it to become operative as against themselves alone.” And in the same case when it was before the court on a former appeal (37 Mich. 500), the court said that the obligee must be taken to have been fully cognizant of the form it bore and to have had notice of the fair and reasonable import of such form.

Johnson v. Kimball Township, 39 Mich. 187, is a case very like the one at bar. There the suit was upon the official bond of a township treasurer which he never signed, and the sureties defended. The statute of Michigan, as stated by the court, plainly contemplates that such officer shall be a party to his own bond. The court held that in such case the law presumes that the party signing it did so upon the condition that the principal should also sign, and where he purports to be obligor and does not sign the bond, there must be positive evidence that the sureties intended to be bound without requiring his signature before they can be held responsible. The court also says: “Here the bond shows on its face that the principal has not signed a paper in which he was positively set forth as the person whose signature is to be that of the primary debtor, whose fellow obligors only promise that he shall do his duty.

The State of Ohio v. Bowman et al., 10 Ohio, 445, is re-referred to as announcing a contrary doctrine from that in the last cited cases. That was a suit upon a county treasurer’s bond not executed by him, and it was argued that the bond was void. This position was not sustained by the court, great stress being placed upon the fact that by their statute the treasurer was only required to “give” bond with sureties, which the court says, may well be construed “by sureties,” and that the completeness of the bond strieti juris depended simply upon the question whether it was “given ” by him, of which last fact the court had no doubt from the evidence. The court further held that the bond being found in the hands of the legal depositary the presumption, in the absence of proof to contradict it, was very strong that the sureties had dispensed with the execution by the principal. To the extent that it casts upon the sureties the burden of proof to show that they did not dispense with the signature of the principal obligor, it may be said to be in conflict, but upon the question of the validity of the bond it supports those cases as well as our holding in 10 Brad well, supra. Again in that case no defense of a conditional delivery to the principal was made, and it can hardly be claimed that the court in that case denied the validity of such defense or that the defects in the bond would not be notice thereof if it existed.

From the best consideration that we have been able to give this case, in the light of all the authorities bearing upon the questions raised, we are disposed to hold as the law of the case that the obligees owed to these sureties a duty under the statute of having their own appointee sign the bond in suit, and that the sureties had a right to have that duty performed and the fair and reasonable expectation that the obligees would not neglect it. And as it appears from the face of the bond that the obligees, as well as the principal obligor, have failed to perform a plain statutory duty, they should take the burden of showing that these sureties expressly assented to being bound alone by such obligation, or which is tantamount thereto, that they consented to its delivery without its being executed by .Reitz.

That there existed no implied authority in Reitz to deliver it, nor in the trustees to accept it as an obligation binding upon the sureties without his signature, and therefore it is open to them to show as a defense, if they desire to interpose it, that he had no actual authority to deliver it except upon complying with the condition upon which it was intrusted to him, viz., that he was also to execute it before delivery. Having the right to rely upon the proper discharge of their legal duty by the obligees to see that a proper bond was executed they were not in fault in dismissing all oversight over it, as they might well suppose their principal had signed it before it was approved by the trustees and the county superintendent of schools.

As we find the fact fully established by the evidence that these appellants signed the bond and intrusted it to Reitz upon the condition and restriction that it should not be delivered until he also executed it, and the obligees having accepted the delivery of the bond without such condition being complied with after full examination of the bond, from which they must beheld to have notice that it was not executed by him, we must hold that the defense is made out and no recovery can be had against the appellants.

This conclusion disposes of all the questions made upon the propositions submitted to and held or refused by the court below.

The judgment of the court below will be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Pillsbury, J.

license: Public Domain

text:
    E. Essley et al. v. John Sloan et al.
    1. Usury, defense of — Contract with mortgagee. — Where the grantee took land subject to the payment of the trust deed, not by operation of the law merely, but by the express agreement of the parties to the conveyance and without any authority from the grantor to interpose the defense of usury; in such ease the defense can not be made, as the vendee can not be allowed to say that the contract of the vendor with the mortgagee was not obligatory upon him.
    2. Bill to redeem — Tender.—Where a bill states the existence of the mortgage, and that the complainant is the owner of the equity of redemption, it is sufficient prima facie to constitute a good bill for redemption. Where parties make a tender of the amount they claim to be due, whether a sufficient amount has been tendered, will only affect the question of costs, and is not conclusive upon the right of redemption. The bill in this case contains every allegation necessary to entitle appellant to redeem.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Opinion filed February 5, 1885.
    This is a bill in equity'filed in the circuit court by appellants against appellees, the averments of which briefly stated are substantially as follows: That Essley, on January 15,1872, borrowed of one McKinney the sum of two thousand dollars, payable in one year, for which he gave bis note bearing ten per cent, interest from date. That said loan was usurious, stating the terms of the loan showing that fact. That to secure such loan he executed a trust deed with power of sale upon the land in the bill to the appellee Bassett. That he paid to said McKinney various sums of money, giving amounts and dates, at different times from the date of said note up to February, 1878. That said Bassett and McKinney on the 3rd day of April, 1875, released fifty acres of said premises from the lien of said trust deed. February 8, 1878, Essley conveyed said premises to one William Drury by general warranty deed, except as against the trust deed to Bassett, and other incumbrances enumerated in the deed. That said Drury conveyed said premises on February 25, 1878, to one Bigelow, by warranty deed subject to same trust deed and other liens thereon, and that Bigelow made certain payments to McKinney, and that in January, 1881, the interest of said note was reduced, by agreement between Bigelow and McKinney, to eight per cent, per annum. That March 24, 1884, said Bigelow conveyed by quit-claim deed all said premises to Ballard, one of the complainants. That January 4, 1884, said McKinney assigned said note to the defendant John C. Sloan, who has presented the same to defendant Bassett and requested him as trustee to sell said premises under the power contained in said trust deed, for non-payment of the note, and that Bassett in pursuance of said request had advertised all said premises for sale on the 14th day of June, 1884. The bill further alleges that there had been paid on said note the sum of $2,459.66 and after computing six per cent, upon the amount actually received upon said note by Essley, viz., $1,940, there remains due thereon the sum of $425 only, and that on the 11th day of June, 1884, the complainants tendered to said Sloan the sum of $500, and demanded the surrender of the note and a release of the trust deed whiclq Sloan refused to receive.
    The bill then states that: “ Complainants bring the said $500 into court, and hereby offer to deposit the same with the clerk of this court, or at any other place that the court may direct, to be subject to the use of the'defendant, as the court may direct. And the complainants stand ready to bring forward or deposit and pay, any further sum that this court order or find equitably due to the defendants. Prays that the defendants, Bassett and Sloan, may be enjoined from selling said real estate; that they may be summoned to answer the bill of complaint, but not under oath, and that an account may be taken of the amount paid on said note and that the loan be declared usurious, and the payments go in discharge of the principal, and that the amounts found to be due on the same, may be, by this court, ordered to be paid to the said defendants by the complainants, and that the complainants shall have a decree, commanding the said Sloan to deliver to the complainant, Elisha Essley, the said promissory note, and the said Bassett and Sloan to release said real estate, not heretofore released from said deed of trust, and to forever refrain from selling or offering to sell the same under said trust, and for such other and further relief as is right and meet.
    The defendant Sloan filed a general demurrer to the bill, which was sustained by the court, and a decree entered dissolving the temporary injunction, which had been ordered in vacation by the master,-and dismissing the bill as to both the defendants, and the complainants appealed.
    Messrs. Bassett & Wharton, for appellants;
    that when the demurrer is general, if any part of the bill is good, the demurrer should be overruled, cited Story’s Eq. Pl. §443; 1 Daniell’s Ch. Pr. 651; Robinson v. Guild, 12 Metcalf, 327; Dimmock v. Bixby, 20 Pick. 368; Brown v. Hogle, 30 Ill. 119; Gooch v. Green, 102 Ill. 511; Verplank v. Caines, 1 John. Ch. 59; Higginbotham v. Burnet, 5 Johns. Ch. 184; Beach v. Beach, 11 Page, 161; Rowland v. Doty, Harrington Ch. (Mich.) 3.
    The mortgagor may convey and authorize his grantee to take advantage of the usury: Valentine v. Fish, 45 Ill. 462; Pike v. Crist, 62 Ill. 461; 1 Jones on Mortgages, §644.
    A purchaser of the land may interpose the defense: Shufelt v. Shufelt, 9 Paige, 138; Bennett v. Keehn, 57 Wis. 582; Gunnison v. Gregg, 20 N. H. 100; Berdan v. Sedgwick, 44 N. Y. 626; Bullard v. Raynor, 30 N. Y. 197; Banks v. McClelland, 24 Md. 62; McAllister v. Jerman, 32 Miss. 142; Doub v. Barnes, 1 Md. Ch. 127.
    As to equity of redemption: 2 Jones on Mortgages, §§ 1013, 1023; Brown v. Gaffney, 32 Ill. 251; Roberts v. Fleming, 53 Ill. 198; Henry v. Davis, 7 Johns. Ch. 40; Gibson v. Crehone, 5 Pick. 146.
    Mr. John C. Pepper, for appellees;
    as to usury, cited Tyler on Usury, Ch. 31; Adams v. Robertson, 40 Ill. 45; Daub v. Engleboch, 109 Ill. 267; Thompson v. Dearborn, 107 Ill. 87; Rogers v. Herron, 92 Ill. 583; Flagg v. Geltmacher, 98 Ill. 293; Johnson v. Zink, 51 N. Y. 355; Green v. Kemp, 7 Am. Dec. 169; Engle v. Harris, 43 Am. Dec. 624.
   Pillsbury, J.

We quite agree with the court helow that, under the averments of this hill, Ballard, the owner of the equity of redemption in the mortgaged premises, is in no position to derive any benefit from the fact that the loan from McKinney to Essley was tainted with usury. The copies of the deed from Essley to Drury .and from Drury to Bigelow, made a part of the bill by direct reference, shows, presumptively at least, that the amount of the trust deed to Bassett ivas deducted from the purchase money.

The conveyance by Essley is made subject to such trust deed by its terms, and nothing appearing upon the record to disclose usury in the loan, it must he presumed that Essley intended to subject the land to the payment of the trust deed according to its terms. There does not appear to have been any concealment tty Essley from his grantee of the nature of the incumbrance, nor that no deduction was made from the purchase price because of it.

The grantee, therefore, took the land subject to the payment of the trust deed, not by operation of the law merely, but by the express agreement of the parties to the conveyance, and so far as it appears, without any authority from Essley to interpose the defense of usury, thus bringing the case within the principles announced in Henderson v. Bellew, 45 Ill. 322, and Valentine v. Fish, Ibid. 462, where it is held that in such case the defense can not be made, as the vendee can not be alloived to say that the contract of the vendor with the mortgagee was not obligatory upon him.

While it is said in some of the earlier cases that it was essential to the right of the vendee to plead usury that he should be expressly authorized hy the mortgagor so to do, it would seem from the later decisions that this authority may be implied as well as expressed — Maher v. Lanfrom, 86 Ill. 522, where it is held that such authority will be implied when the grantee takes the land subject to the mortgage by operation of law alone, having no actual notice of the incumbrance, and there being no account taken of it in fixing the amount to be paid for the premises.

From the arguments of counsel filed in this court it would seem that the question of the right of Ballard to rely upon the defense of usury was made the principal issue between the parties in the court below upon the argument of the demurrer, and the other questions arising upon the face of the bill, and affecting the equities of the complainants, were treated as of minor importance; otherwise we can not account for the action of the court in refusing to retain the bill.

The bill states the existence of the mortgage and that Ballard is the owner of the equity of redemption which, under the authority of Barnard v. Cushman, 35 Ill. 451, is sufficient prima, facie to constitute a good bill for redemption. But this bill goes further; it alleges a tender of the amount complainants claim to be due and avers a readiness and willingness to pay any sum the court may find equitably due, and asks the court to ascertain the amount, and upon payment of the same the note be surrendered and the trust deed discharged. Whether a sufficient amount has been tendered will only-affect the question of costs, and is not conclusive upon the right of redemption. Barnard v. Cushman, supra.

The right of redemption is so firmly engrafted upon the law of mortgages, and so fully protected and enforced, that the mortgagor’s solemn agreement that upon non-payment the estate shall be forfeited is held utterly void in equity: 2 Story’s Eq. Juris., § 1019; and in East India Co. v. Atkyns, Comyns, 374, it is said that if a man make a mortgage and covenants not to bring a bill to redeem, nay, if he goes so far as in Stisted’s case, to take an oath that he will not redeem, yet he shall redeem. See also, Willets v. Burgess, 34 Ill. 494.

His only remedy after condition broken is in a court of equity. His estate at law is gone. He, in our State, is not the owner of the fee after breach of condition, and can not defend in ejectment nor maintain ejectment if the mortgagee be in possession. And therefore, in case of trust deeds with power of sale, he must either submit to pay whatever the cestui que trust may demand, or have his equity of redemption sold beyond any power of reclamation if he can not appeal with success to the court of equity to protect that right which originated in that tribunal. Under the strictest rules of equity we think this bill contains every allegation necessary to entitle Ballard to the right to redeem, and that it was error not to retain the bill, ascertain the amount due by reference to the master, and enter a decree that upon payment of such amount by him by a certain time to be fixed by the court, that the lien of the trust deed be discharged, or in default of its payment that the bill stand dismissed.

The point has been made that Essley is not a proper party to the bill. As the bill shows that he made various payments upon the note and account is asked, we think he is a proper party enough, although perhaps not a necessary party. 2 Jones on Mortgages, Sec. 1098; Valentine v. Fish, supra. The fifty acres released by Bassett was also advertised to be sold with the residue of the premises, and it is admitted by the demurrer that it would have been sold if the defendant had not been enjoined. The averments in the bill show that Ballard bought this fifty acres with the other land, but the deed from Essley to Drury does not seem to include it. If Essley still owns it, his right to an injunction would seem to be clear, in order to prevent a cloud upon his title, and the same may be said of Ballard if he purchased it. However, as the decree will be reversed, the bill, in this particular, can be amended so as to make the matter clear.

For the reason stated the decree will be reversed and the cause remanded.

Decree reversed.


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    City of La Salle v. The Matthiessen & Hegeler Zinc Co.
    1. Cities, towns and villages — Town plat. — The acknowledgment and recording of a town plat vests the legal title to the ground embraced by the streets and alleys in the corporation. The title may perhaps revert to the former owner on the destruction of the corporation or on the abandonment of the ground for the purpose of the streets and alleys. But until the estate is thus defeated, the estate is as completely out of the former owner as if he had made an absolute and unconditional conveyance.
    2. Where plat not acknowledged. — The fact that the plat of a city was not acknowledged by the canal trustees would not affect its operating as a conveyance in fee, to the city, of the streets and alleys.
    3. Streets' — Encroachments under sureaoe. — Appdlee claimed the right, as (he owner of a coal shaft located outside the city limits as originally plaited, and the owner by subsequent purchase of coal underlying certain lots and blocks in the city, without the consent of the city authorities, to enter into, mine and remove the veins of coal underlying the streets and alleys of the city, for the purpose of connecting the shaft with the coal owned by appellee under such lots and blocks. Held, that the city, as owner in fee and in possession of the land within the limits of the streets, has vested in it by law the power to prevent encroachments upon them by individuals, and is not limited, in the exercise of this power, to the surface of the ground; that the sale of the coal by the lot owner to appellee, and the right to mine and remove the same, can not have the effect of authorizing an entry into the lands of others, either upon or below the surface.
    Appeal from the Circuit Court of La Salle county; the Hon. J. McRoberts, Judge, presiding.
    Opinion filed February 5, 1885.
    The appellee filed its bill in the circuit court against tl e appellant and others, in which it sets forth its incorporation, and that it was engaged in the city of La Salle in the manufacture of zinc spelter and sheet zinc, and for the purpose of obtaining the coal for carrying on such business had sunk a coal shaft, and was then mining coal for use in its manufactory and raising it through such shaft.
    The bill then avers*. That the city of La Salle is duly ineorporated under the laws of the State of Illinois, and that the original plat of said city is located upon section 15, in township 33 north, range l,enst of the third principal meridian; that the original plat of said city of La Salle was made by the trustees of the Illinois and Michigan Canal, and duly certified by them to be accurate, on the 18th day of June, A. D. 1838, and the same was filed for record in the recorder’s office of La Salle county, June 23, 1838, under the power conferred upon such trustees by the laws of said State; and that said trustees in making said plat of said city, located thereon certain streets and alleys for the use and benefit of the inhabitants of said city of La Salle, and that said streets and alleys were dedicated by said' trustees to the public, and the title thereof became and was vested in said city of La Salle, upon its incorporation, for the uses and purposes designated by said canal trustees, and for no other purpose whatsoever. That by virtue of such dedication the said city of La Salle was vested with the right to use said streets and alleys as public highways, for the purposes for which they were thus dedicated, and that they have no right to use the same for any other purpose whatsoever.
    And that such streets and alleys were dedicated as aforesaid by the said canal trustees to the said city of La Salle for the use of the public at large, and more especially for the use of the owners of the lots and blocks adjoining such streets and abutting thereon, and the lots and blocks upon which such alleys were situated and located; and that subject to the right of the public to use the same as public highways, such streets and alleys became and were appurtenant to the adjoining owners of lots in said city of La Salle.
    “Your orator would further represent unto your honors, that by purchase from the rightful owners thereof your orator has become seized in fee simple of all the bituminous and stone coal, with the right to nine the same, underlying the following described lots and blocks in the city of La Salle.” After describing the lots, the bill further sets forth that the complainant is desirous of mining the coal under said lots from and through its shaft, and in order to do so it is necessary to make certain entries and passage ways from lot to lot and block to block along, beneath and underneath said streets, thereby connecting the coal under the lots with the shaft, and that such mining under the streets will not interfere with the surface of the streets, nor in any manner impair the usefulness of the same as public ways; and avers the right and intention to so mine under said streets and remove the coal from the street for the purpose stated, and if not allowed so to do the coal under the lots will be lost to it, but that the city claims to own such coal under the streets with the power to sell the same, and threatens to prevent complainant thus mining under said streets, and to bring suits against it, if the complainant should proceed as it desires to do.
    The bill further alleges that in 1866 the city of La Salle entered into a contract with Michael Byrne, Richard Cody and Midiólas Duncan, in which it granted them the right to mine all the coal underlying the streets and alleys in the original plat of the city, which contract the said Byrne (the said Cody and Duncan having died since the date of said contract) claims to be still in force, and that if complainant should mine such coal he will insist upon its paying him for the value thereof; avers that said contract is invalid for lack of power in the city to thus sell and dispose of the coal, and in order to prevent a multiplicity of suits, it is necessary that the rights of the various parties should be determined in equity. Makes the city of La Salle, the said Byrne, and the heirs at law of Cody and Duncan, defendants to the bill and asks that the complainant may be decreed the free and unobstructed right to run said entries and passage ways under and along said streets for the purpose aforesaid, and that said Byrne and his associates be enjoined from removing any of said coal under said contract, and that on final hearing said injunction be made perpetual, and for general relief.
    The city of La Salle appeared and answered that part of the bill setting up its contract with Byrne, Duncan and Cody, admitting its execution and invalidity as claimed, and demurred to the residue of the bill. The bill was taken as confessed by the other defendants, the demurrer of the city overruled, and a decree entered in accordance with the averments and prayer of the bill, giving the complainant the right to mine and remove the coal from, the streets and alleys, doing no injury to the surface, and enjoining the defendants from in any way interfering with the complainant in so doing.
    The city alone appeals.
    Mr. G. S. Eldridge, for appellant;
    as to fee in the streets passing by dedication tc the city, cited Trustees v. Haven, 11 Ill. 554; Nevins v. R. R. Co., 21 Ill. 252; Hunter v. Middleton, 13 Ill. 50; Stephani v. Brown, 40 Ill. 431; Chicago v. McGinn, 51 Ill. 273; R. R. Co. v. Hartley, 67 Ill. 442; St. John v. Quitzow, 72 Ill. 336; Gebhardt v. Reeves, 75 Ill. 301; Chicago v. Rumsey, 87 Ill, 349; Stetson v. C. & E. R. R. Co., 75 Ill. 75, §2.
    Mr. E. F. Bull and Messrs. Leland & Gilbert, for appellee;
    cited R. S. 1829, p 184; R. S. 1833, p. 600; R. S. 1874, §5; Ch. 109, §3; Canal Trustees v. Haven, 11 Ill. 554; Schurmeir v. R. R. Co., 10 Minn. 104.
    The grant is in trust for street and alley purposes and for no other use or purpose: City of Alton v. Ill. Trans. Co., 12 Ill. 60; City of Jacksonville v. Jacksonville Ry. Co., 67 Ill. 540; City of Quincy v. Jones, 76 Ill. 231; Stack v. City of East St. Louis, 85 Ill. 377; Kreigk v. City of Chicago, 86 Ill. 407.
   Pillsbury, J.

Neither of the parties to this cause questions the correctness of that portion of the decree of the circuit court declaring the contract of the city with Byrne and others void, and enjoining them from claiming any rights under it. We are therefore not called upon to inquire whether, under the laws of this State, the city has power to sell or dispose of any coal or other mineral underlying the streets and alleys in the city, or to mine the same for its own profit.

The simple question here presented is whether the appellee has the right, as the owner of a coal shaft located outside the city limits as originally platted, and the owner of coal underlying certain lots and blocks in the city, without the consent of the city authorities, to enter into, mine and remove the veins of coal underlying the streets- and alleys of the city, for the purpose of connecting the shaft with the coal owned by complainant under such lots and blocks.

It is not very clear what interest the appellee claims in the streets upon which it bases its right to cut tunnels a.ong and across the streets and to remove the coal therefrom in order to mine the coal from the lots and blocks described; but if we understand its position, it maintains that by making, certifying and recording the plat, by the canal trustees, the municipality became invested with the title to the streets and alleys marked thereon and dedicated to public use, as a trustee for the adjoining lot owners, as well as for the public; and such lot owners have an equitable title in and to the soil of the streets, in the nature of a resulting trust, and, subject to the public use of such streets as public ways, such lot owner has absolute dominion over the soil within the limits of such public thoroughfares, and may remove the subjacent soil therefrom, for his own benefit, if it can be done without detriment to the public use of the surface, and is necessary for the proper enjoyment of his estate in the adjoining lots and blocks. Is this claim well founded?

The effect of a plat properly acknowledged and recorded by the proprietor of the lauds, was passed upon by the Supreme Court in the cáse of the Canal Trustees v. Haven, 11 Ill. 554, where it is said: “Under the provisions of this statute the legal title to the land embraced by a street is vested in the corporation of the town or city for the use and benefit of the public. It is not in the power of the proprietor of the lots to transfer the fee in the streets to the grantee. The acknowledgment and recording of the plat has all the force of an express grant. It operates by way of estoppel, and concludes the former owner, and all claiming through or under him from asserting title. It is a solemn dedication of the ground to the corporation, to be held in trust for the uses and purposes of the public. In the recording of the plat the fee in the street eo instanti, passes to the corporation.”

In Hunter v. Middleton, 13 Ill. 50, where a like question was made, the court said: “ We adhere to the opinion expressed in Canal Trustees v. Haven, supra, that the acknowledgment and recording of a town plat vests the legal title to the ground embraced by the streets and alleys in the coi’poration. The legal effect is precisely the same as if he had made a conveyance directly to the corporation. The latter holds the legal estate for the benefit of the public. The title may perhaps revert to the former owner on the destruction of the corporation, or on the abandonment of the ground for the purpose of the streets and alleys. But until the estate is thus defeated, the, estate is as completely out of him as if he had made an absolute and unconditional conveyance.”

This doctrine has beer, recognized .and re-affirmed in subsequent cases, as in Railroad v. Hartley, 67 Ill. 442; Chicago v. McGinn, 51 Ill. 273; St. John v. Quitzow, 72 Ill. 334; and in Gebhardt v. Reeves, 75 Ill. 301.

It is urged that, as ti e plat of the city of La Salle was not acknowledged by the canal trustees, it did not operate as a conveyance in fee to the city of the streets and alleys.

This position is fully answered by the case of City of Chicago v. Rumsey, 87 Ill. 349, which was a suit brought by Rumsey against the city of Chicago to recover damages by reason of the construction of a tunnel in the street in front of his property abutting upon the street. By its construction the intervening space between the property and the tunnel was only sixteen feet, and the sidewalk was reduced to eight feet in width. The property in question was 'a part of the canal trustees’ subdivision, and the street was indicated by the plat made by the trustees. Upon the question under consideration the court held, that “ had the land belonged to any party other than the State, this would have been necessary to vest the fee in the streets. But that the State being sovereign, no acknowledgment could add to the force and effect of the plat in this regard;” and further (p. 354): “But the statute of 1833 has one very important bearing upon the question. It shows that it was a policy of the State to vest the fee of the street in cities, towns, etc., for the public use, divested of all claims of private ownership. This'being the declared policy of the State, the presumption would follow that no discrimination in this regard should exist between cities, towns, etc., laid ont by the State and those laid out by other proprietors. A general policy being once established, it devolves upon those claiming exceptions to clearly prove their existence. No reason is perceived why an exception should have been desirable which would have left the legislature with less unquestioned authority to control the improvement of the street for public purposes in the cities, towns, etc., of which the State is the proprietor, than in others, and the circumstances connected with the sale and conveyance of canal lots have no tendency to prove that such exception was intended. The commissioners had no authority, by law, to sell anything but lots where towns were laid out. And the patent issued by the governor could only include what the commissioners sold.” The court also said in the same case: “We are satisfied that the fee of La Salle street adjacent to Rumsey’s land is either in the State or in the city of Chicago, for the use of the public, and therefore Rumsey can have no legal interest in it except in common with the public.”

These authorities would seem to be conclusive against the claim advanced that the owners of the lots and the appellee as owner of the coal underlying the lots, have a present legal interest in the streets of the city different from that of the general public. There is nothing shown in the bill that would overcome the presumption arising from the other facts alleged, that the boundaries of the lots and blocks are limited to the description in the plats, and that the lots and blocks as thus described constituted the entire interest in the land platted, purchased by individuals from the canal commissioners. They were not authorized by the statute to convey to purchasers any special interest in the streets, either legal or equitable, and it is not to be presumed that they did so in absence of averment to the contrary.

For the same reason it is clear that the owner of the lot can have no reversion in the streets, contingent or otherwise. His title does not extend beyond the limits of his lot. His interest in the street is in common with the public. He has no such equity in the soil of the street, that in case of a vacation or abandonment of it as a way, it would, to the center thereof, revert to him underjiis conveyance of the adjoining lot.

At the time the streets and alleys of the city of La Salle were dedicated to public use by the canal commissioners, the law recognized the original proprietor of the site as the owner of the possible reversion in the street. That interest being a vested right in him, subsequent legislation attempting to apportion such reversion among the owners of the adjoining lots, upon the termination of the estate vested in the public, is inoperative as to him, and his prior interest remains unaffected by it. This was so held in St. John v. Quitzow, 72 Ill. 334, and re-affirm ed in Gebhardt v. Reeves, 75 Ill. 301, where the court says: “ The streets and alleys having been vacated by an ordinance, and the use of them abandoned, the question arises, what becomes of the fee that was in the city? Does it revert to the original owner, or does it go to his grantee of the adjacent lots? Under the previous decisions of this court, the inquiry admits of but one answer- — it reverts to the original owner.”

The sale of the coal to 1he appellee by the lot owner with the right to mine and remove the same, under the authority of Ewing v. Mining Co., 110 Ill. 290, may have conferred upon if, as incident to the gram;, the right to go upon the land of the grantor and dig for the coal, but in no sense can it be said that such grant can have the effect of authorizing an entry into the lands of others, either upon or below the surface, for such purpose. The grantor, as we have seen, had no such interest as would justify him in making such entry and he could not transfer any such rigl t to appellee.

The city is the owner iii fee and in possession of the land within the limits of the streets, with the power vested in it by the law to prevent encroachments upon them by individuals and we find no warrant in the law for limiting the city in the exercise of this power to the surface of the ground.

In our opinion, the citj of La Salle should have been left free to assert any legal means it may possess to prevent the threatened acts of appellee averred in the bill.

The motion to dismiss the appeal, retained until the hearing has been considered and we have come to the conclusion that a freehold is not so directly involved in this cause as to deprive this court of jurisdiction, and the motion is therefore overruled.

For the reasons stated, the decree of the court below, in so far as it is based upon that portion of the bill demurred to, is reversed and the cause remanded with directions to the circuit court to sustain the demurrer of the city of La Salle, dissolve the injunction against the city, and dismiss the bill so far as the relief asked is based upon the allegations to which the demurrer is so sustained, and the decree is affirmed in other respects.

Decree reversed in part and affirmed in part and cause remanded.


text:
    Angelina Sommers v. Henry W. Sommers.
    Divorce — Jurisdiction.—Where the defendant in a hill for divorce in the pending cause, raises the question of the jurisdiction of the court to proceed to a decree, and the evidence shows that the alleged jurisdictional facts are untrue or not maintained, the court should dismiss the bill, however the question is made, or at what stage of the proceedings. As the evidence shows that complainant was not a resident of the county where the proceedings were instituted, the motion of defendant after answer to dismiss the bill for want of jurisdiction, is sustained.
    2. Evidence. — The court is of opinion that the great weight of evidence upon the question of desertion is in favor of the defendant.
    Appeal from the Circuit Court of Will county; the Hon. J. McRoberts, Judge, presiding.
    Opinion filed February 5, 1885.
    This is a bill for a divorce filed in the Circuit Court of Will county by the appellee against the appellant, alleging that the parties were married in Germantown, Pennsylvania, in 1872, and that they lived together until May, 1875, when the defendant, at the city of Chicago, willfully deserted the complainant without cause, and still absents herself, refusing to live with him; that one son is the only issue of such marriage, who is under the care and custody of complainant.
    The defendant answered the bill, admitting the marriage, but denied the charge of desertion or that she had refused to live with him; but, on the contrary, alleges that in the early part of 1875 she went with him to Chicago, where they lived together as husband and wife until May of that year, when the complainant persuaded her to accompany him back to Germantown on a visit to her father’s house, and that he then left her there with the promise to soon return and take her to a new home, which he said he would provide for her. And from that time until February, 1884, he visited her at her father’s house on several occasions, living and cohabiting with her at such times; and in February, 1884, he visited her and remained for one week, when he left for Chicago, promising with every assurance cf love and affection that he would speedily send for her to return to him and his home in Chicago; and while she was remaining at Germantown, and relying upon such promise, she was served with a copy of the bill in this case; that the son is and always has been under her care. Proofs were taken, and upon hearing the court granted the jjrayer of the bill, and the defendant appealed.
    Mr. H. S. Oakley and Mr. J. K. Wilson, for appellant;
    as to jurisdiction, cited Haywood v. Collins, 60 Ill. 333; Way v. Way, 64 Ill. 410.
    It was error to render the decree upon the testimony before the court: Shillinger v. Shillinger, 14 Ill. 147; Flagg v. Stowe, 85 Ill. 169; Davis v. A. & F. Ch. Un., 100 Ill. 313; Gage v. Busse, 7 Bradwell, 433; Kelsey v. Starkey, 11 Bradwell, 84; Danforth v. McIntyre, Id. 417.
    Mr. George W. Cothran, for appellee;
    as to what is sufficient to confer jurisdiction, cited Parker v. Parker, 61 Ill. 369; Way v. Way, 64 Ill. 406; Wallace v. Cox, 71 Ill. 548; Pool v. Docker, 92 Ill. 501.

      As to sufficiency of evidence: Carter v. Carter, 62 Ill. 439; Kennedy v. Kennedy, 87 Ill. 250.
   Pillsbury, J.

The first point made by appellant for a reversal is, that the proof shows that the bill was not filed in the county where the complainant resides, and the court for that reason should have sustained the motion of appellant to dismiss the bill for want of jurisdiction. The appellee insists that having answered to the merits, such objection has been waived, as the appellant should have pleaded to the jurisdiction before answer. The bill avers that the complainant is “ of Will county,” and for five years last past has been an actual resident of the State of Illinois, which has been held sufficient upon the face of the bill to give the court jurisdiction. Way v. Way, 64 Ill. 407; Parker v. Parker, 61 Ill. 369.

In the latter case the allegation of residence was substantially as in this, and a motion being made before answer to dismiss the bill on the ground that the complainant was a resident at the time of instituting her suit, of DeKalb county, supported by affidavits, the motion was overruled and the Supreme Court held that such motion was improper unless the want of jurisdiction appeared upon the face of the bill. After stating that the bill sufficiently averred the jurisdictional fact of residence in the county, the court says: “And plaintiff in error failing to plead facts showing want of jurisdiction, and answering to the merits of the bill, the court below did right in proceeding with the trial of the cause. It was held in the ease of Peeples v. Peeples, 19 Ill. 269, that an objection of this kind was dilatory in its character, and should have been raised before answer.”

The case of Way v. Way, supra, would seem to announce the rule that such objection can be taken on the trial, by an instruction to the jury.

The offense of the wife for which the divorce was sought, was alleged to have been committed in Cook county, and the bill was filed in that county, and the answer of defendant raised the question of the residence of the complainant in this State, and the court was asked to instruct the jury that if the complainant did not have an actual residence in Ooolc county at the time of filing the bill, he'was not entitled to recover, which the couit refused to do, but did instruct them that the residence in the county and State was not necessary if the act of adultery was committed in the county in which the suit was brought.

The court says “ It is contended that the objection to the jurisdiction should have been taken before the trial on the merits. This could not have been done, for the bill alleged all the facts necessary to confer jurisdiction. The question of jurisdiction then became one of fact, to be determined upon the hearing. It might, perhaps, have been presented by motion after the evidence was heard; but it was raised by an instruction asked and refused. When the want of jurisdiction clearly appeared during the progress of the trial; it was the right and duty of the court under the pleadings, to have dismissed the bill. * * * In this case the court had jurisdiction, if the bill was true. Its truth being denied, and when the complainant failed to sustain his allegations by proof, the question of the jurisdiction of the court for the first time arose. * * * If by a proper construction of our statute the court had not jurisdiction, then even consent of the parties would not give it.”

The court conceded that there was sufficient evidence to justify the inference tint the defendant had committed adultery in the county of Cook, and conceded in the case that such fact would dispense with the residence of the complainant for one year in the State before filing the bill, under section three of the Divorce Act, but still the question remained under section two of the same act, whether it was not essential to the jurisdiction of the court that the complainant should be an actual resident of the county where the proceedings were instituted.

Sections two and throe of the act construed in that case are the same as sections five and two of Ch. 40, R. S. 1874, under which the proceedings a this case were had, and of course the same construction wouli apply. Section five of the present act being section two of the former act, provides that “ The proceedings shall be had in the county where the complainant resides, but process may be directed to any county in the State.” It was contended in Way v. Way that section two was but a mere rule of practice not essential to jurisdiction.

Upon this point the court says: “Mo reason has been assigned why this provision is a mere rule of practice, and a compliance with it not essential to jurisdiction; and we apprehend none can be given. The language is comprehensive enough to embrace all suits for divorce, whether for offenses committed without or within the State. The construction contended for would fritter away one section of the statute as to non-residents and make it operate as to residents. The legislature certainly never intended the distinction, that the resident must sue in the county of his residence and the nonresident might sue in any county of the State.”

After referring to analogous statutes where jurisdiction is only acquired by compliance with their terms, and to some of the rules which govern in the construction of statutes, the court continues: “ What then, was the intention in the enactment of the last clause of section two? The words are simple and expressive, and the meaning would seem to be obvious. The bill shall be filed in the county in which the complainant resides. The language is imperative, and excludes the right to commence proceedings in any other county than the one in which the residence of the complainant is fixed. Residence is made a prerequisite to the existence of the right to file the bill.”

It is believed that this ease has been considered by the circuit courts of this State as settling the question of the necessity of the complainant proving upon the hearing, whether it be ex parte upon a default, or upon a contest upon answer, the jurisdictional facts alleged in the bill, viz., the actual residence in the county where the venue is laid, and a year’s residence in the State when it is required by the statutes; and that it also allows the defendant to insist that such proof be made where an answer is filed as well as though the question was raised by plea. Such we understand to be the plain purport of the opinion, and even if it appears to conflict with the earlier cases as to the proper manner of bringing the question of jurisdiction to the attention of the court, we would consider it our duty to follow it as the later adjudication upon the subject. Besides, we think it states the proper rule. The question made is one that goes beyond the mere jurisdiction of the parties to the cause. 11 challenges the power of the court to adjudicate upon the rights of the parties and dissolve the marriage relation. It relates to the jurisdiction of the court over the subject-matter of the controversy, and in such case, it can scarcely be said that t íe defendant can not insist upon the want of jurisdiction w lenever it appears during the progress of the trial.

Where the record of the case shows all necessary jurisdictional facts and no objection is made to the action of the court, it may well be that the adjudication would be held conclusive in all collateral proceedings regardless of the evidence upon wdiich the decree is based, but when the defendant in the pending cause raises the question of the jurisdiction of the court to proceed to a decree, and the evidence shows that the alleged jurisdictior al facts are untrue, or not maintained, we think the court should dismiss the bill, however the question is made, or at what stage of the proceedings. An examination of the proofs in tnis case conclusively shows to us that the complainant was net a resident in Will county at the time of filing his bill, but on the contrary, since 1875 has resided in Cook county, where .it the time of the trial he still resided, as he states in his testimony given in open court.

Although in our view the want of jurisdiction is fatal to the present decree, we have examined the evidence in the record bearing upon the quest, on of desertion alleged in the bill and denied by the answer, and find that the great weight of evidence is in favor of the; defendant. The complainant testifies that the defendant left him in 1875, since which time she has refused to live with him This is denied by the defendant, and she also swears to the truth of the facts alleged in the answer concerning his frequent visits to her while living at Germantown, and as late as February, 1884, he remained with her for about a week and cohabited with her, and on leaving, promised to send for her and have her come to Chicago to live with him. That while on his last visit he purchased some furniture and carpets for their bedroom, paid two months’ rent for the house, bought a ton of coal and some cooking utensils. That at that time he seemed to be more affectionate than at any time during their married life. The defendant is very fully corroborated in nearly all her statements, and especially concerning his visits to her and the fact that they occupied the same room while he -was there at the several times mentioned by her, by a brother and sister who were living with her in Germantown, and by Mrs. Bessie Grout, at whose house they boarded a short time in 1877, when they occupied the same bedroom, and who also testified to his other visits and to the fact that they seemed to be happy together; and also by Mrs. Lillian Griffith, who testified to the visit in February, and knows they occupied the same bedroom at night as she could hear them talking together from- her room. All these witnesses testified to his furnishing the room while he was there.

The defendant, in rebuttal, admits he was there in February and furnished the room but claims it was for his son, and says that he did not remain a single night with his wife, after his work was done there, invariably going to his mother’s to spend the night. lie further says that every statement of the other witnesses about his occupying the same room with his wife is false. As the testimony of the witnesses for the defense was contained in depositions, and the complainant and his counsel must have known their contents before trial, it seems singular, to say the least, that, if he remained nights at his mother’s house while in Germantown, he should not have taken measures to have his statement supported by her deposition. He is, however, entirely unsupported in his entire testimony upon this most vital question, and we do not feel at liberty to rely upon it and discard the testimony of four witnesses who have no pecuniary interest in the result and two of whom are in no wise related to the parties, especially as his statement bears upon its face evidence of great improbability. Our conclusion is that the bill is not proved and it should have been dismissed by the court beloxv, and as this was not done the decree of that court will be reversed and an order entered in this court dismissing the bill.

Decree reversed and bill dismissed.


author: Lacey, J.

text:
    Chicago, Burlington & Quincy R. R. Co. v. John Stafford.
    1. Negligence oe co-si:rvant. — One of two employes of the same master, while engaged in the same line of general duty, can not recover for any injury received on account ol the negligent acts of the other, unless the common master has been guilty of some negligence, either in the employment of such servant or in retaining him in such service after notice of his unfitness for such employment.
    2. When servant mat recover. — If the complaining servant enters into the employment ¡of such common master, or remains in it after notice of the character of his co-servant for recklessness or carelessness, and he receives any injury in consequer ce of the negligent acts of his co-employe, he can not recover unless he han notified the master of the character of such servant, and the master has iromised to remove him and has failed, while the servant was engaged with such employe for a reasonable time on the faith of such promise.
    Appeal from, the Circuit Court of Peoria county; the Hon. H. M. Laws, Judge, presiding.
    Opinion filed February 5, 1885.
    The appellee arid Robert Mack were both in the employ of the appellant on and prior to the 11th day of June, 1883, when the accident complained of happened, the one the switch-man or helper, and the other the engineer of the switch engine, which they were both operating and working together in the appellant’s yard in Peoria, Ill., engaged in switching cars, and the two had been together, so operating, for about one month. They were what the law denominates fellow servants of the same master, engaged in the same line of employment. While the appellee was engaged with Mack, on that day, in coupling a certain passenger car, and in his proper place on the foot board in front of the engine, and Mack was in his proper place on the engine, driving and conducting the engine, the latter failed to stop the engine in time to prevent it from striking the car in front of it, by means of which the draw-bar or coupling was broken, and the front part of the engine was forced against the end of the car, and appellee was caught and crushed between the locomotive and car and greatly injured, sustaining an oblique fracture of the right femur in the upper third, also a com minuted fracture of the left femur in the lower third, and the intervening part of the bone was shattered, the muscles and tissues considerably bruised, and he sustained some injury to the muscles of the chest and abdomen. The result of the injury was that his right leg is shorter than the left, that he is bow-legged, and that he will never be able to resume his duties as a switchman.
    The gravamen of the complaint is that Mack, the engineer, was incompetent and unskillful in operating and controlling this engine, as well as others under his control, and that through his negligence and carelessness the injury occurred; that he was at the time, and had for a long time before, been incompetent to properly manage and control that engine and others; that the appellant had notice of this and had had such notice for a long time; that the appellee did not have such notice.
    The cause was tried in the court below and resulted in a verdict and judgment in favor of the appellee, and an appeal is taken to this court.
    Messrs. Jack & Moore, for appellant;
    cited Wood on Master and Servant, §§ 416, 419; Summersell v. Fish, 17 Mass. 312; Warner v. Erie R. R Co., 39 N. Y. 470; Caldwell v. Brown, 53 Pa. 457; Beaulien v. Portland Co., 48 Me. 294; Harrison v. R. R. Co., 31 N. J. 293; Hard v. Vt. Cent. R. R. Co., 32 Vt. 473; O’Connell v. B., etc., R. R. Co., 20 Md. 212; Thayer v. St. L., etc., R. R. Co., 22 Ind. 26; Morgan v. V. of N. Ry. Co., 12 B. 154; Feltham v. England, 22 B. 33.

      Messrs. Wilson & Baum, and Messrs. Stevens, Lee & Horton, for appellee;
    as to notice, cited Mich. Cent. R. R. Co. v. Gilbert, 46 Mich. 176; Davis v. Detroit, etc., R. R. Co., 20 Mich. 124; Cooley on Torts, 559.
   Lacey, J.

There are several points raised by appellant’s counsel and urged as grounds for reversal, such as the improper admission of testimony of witnesses who were allowed to give their opinion rs to whether Mack was a careful, competent and safe enginser or not, and as to whether specific acts of negligence on .he part of Mack to show his carelessness and to show not ce to the company were competent, and as to whether certain of appellee’s instructions were properly given and cer sain of appellant’s offered were properly refused, but as we have concluded to reverse the judgment of the court below on tli b ground, that there was not sufficient evidence to support the verdict, it will not be necessary and we will not pass upon ‘hose questions.

We shall simply not ce this feature of the case:

The declaration charges that the engineer, Mack, was habitually careless and negligent and for a long time had been, and that this fact was know i to the appellant; hence the inference of law that it was negligent in retaining him in its employment, and therefore resoonsible for all the negligent acts of the engineer, even for injury resulting to its own employes working with him and in the same line of employment. It is again averred that appellee had no notice or cognizance of such fact. If he had, i‘. must be admitted that he can not recover even if the first two averments have been established. It admits of serious do lbt from the evidence whether Mack was so reckless and incompetent that an ordinary prudent man, knowing his character, would not have retained him in like service, and also whether appellant should be charged with notice; but it is qi ite clear that the appellee had as full notice of Mack’s chara iter as an engineer as the appellant, and this is deduced from the testimony of appellee himself.

The main complaint against the competency of Mack -is that he was too lively ir running his engine when coupling cars, that he ran it habitually too fast, thereby subjecting it to the hazard of running into the car he was attempting to couple to, in fact the very hazard that caused this accident, in all probability. Ho other point of carelessness or incompetency is charged against him. Ill's character as to the manner of switching seemed to be generally well understood among all the railroad men with whom he worked — some of whom considered his mode of switching dangerous and some did not. It seems that he had a remarkable power of stopping his engine suddenly and saving any danger of collisions, and in all probability would have stopped this one at the time when the accident happened, save for the railroad track being wet so that the wheels did not cause sufficient friction on the track to enable him to stop in time.

Did the appellee have notice of this trait of character in Mack? He himself settles that point fully. He had been working with him about a month before the accident in this very business. He says:’ “Mack always handled his engine pretty fast; he always did good work and made good stops until this time, he didn’t stop.” * * * “ Always before this he would come up pretty lively and pull his engine over and stop from six to ten feet before he would get to the car, then throw her into the forward motion and come up so that I could make the coupling.” * * " Before this he always came up to the car carefully after he would stop. He approached the car pretty fast and a man that was not used to him, or acquainted with him, would think he would run into a car most every time” * * “ would think the engine would get away, because he came up at pretty good speed, and handled his engine lively, and a man had to work pretty lively with him.” The appellee testified that he had been a railroad man ever since the war and worked as a switch-man at yard work for several years. He twice worked in the P. & P. H. By. yards, alongside defendant’s yards. He swears that, “ During the month preceding the accident in which I assisted in making up these trains, Mr. Mack was engineer all the time except one half a day. I was familiar with Mr. Mack’s way of handling the trains; I knew he was in the habit of running up rapidly and stopping just before he got to the car and then slowing it up. He made this coupling this day in the same manner In always did except this time his engine did not stop, for some 'eason. I did not notice that he came up more rapidly that lay than usual; I do not know as he started up from the sw itch any faster than he had been in the habit of doing.” * * “I had done this same kind of work with him three tines a day, and he did it that morning in the same manner as usual, except that his engine did not take a halt. He was a man who handled his engine quickly and well, and one that I always had a great deal of confidence in and had at that tine; he did good work and made good stops until this time. I never knew him to fail except in this instance.”

It is seen from this testimony of appellee himself that he had full and complete notice of the very faults that Mack had, which is relied on alono to show that he was habitually incompetent and reckless in 1 unning his engine. The information that appellee had was the same that appellant could have been informed of and no other. If that was sufficient to compel the discharge of Mack by appellant at the peril of its being responsible to his' emp oyes for all damages that they might receive on account of his negligent acts, then it was sufficient to bar the right of recot ery of appellee if he received injury on account of such negl gence.

The law in this Stat 3 is that one of two employes of the same master, while engaged in the same line of general duty, can not recover for any injury received on account of the negligent acts of the other, unless the common master has been guilty of some negligence, either in the employment of such servant or in retaining 1 im in such service after notice of his unfitness for such employment; and if the complaining servant enters into the employment of such common master or remains in it after notice of the character of his co-servant for recklessness or carelessn 3ss, and he receives any injury in consequence of the negligent acts of his cc-cmploye, he can not recover unless he has no :ified the master of the character of such servant, and the master has promised to remove him, and has failed, while the servant was engaged with such employe for a reasonable time on the faith of such promise.

The Supreme Court seems to have laid down the law fully on this point in Missouri Furnace Co. v. Abend. 107 Ill. 44. The court say: “ The questions raised and discussed on this record have not heretofore been considered by the court in the exact form now presented, and the court is at liberty to determine them as of first impression.” * * * “Should the employe discover the service had become more hazardous than usual, or than he had anticipated, by reason of defective machinery, the retaining of unfaithful fellow servants, or for any other cause, the general rule is, he must quit the service or assume the extra risk to which he is exposed. The rule of law rests in this respect on a correct principle.” After deciding that notice of the discovery of new perils must be given to the master, the court further says: “ The relation of master and servant imposes no obligation on the master to take more care for the servant than the servant is willing to observe for his own personal safety.” Then the court goes on to give the exception, where there is a notice and promise on the latter’s part to remedy the wrong complained of. But as appellee gave no notice or made any complaint it is not necessary to notice this exception to the rule further.

This being the law, whether wisely or unwisely, it must be enforced and not allowed by the courts to be evaded. It is indeed a sad accident that has befallen the appellee, and there is no one who could fail to have the deepest sympathy for him in his misfortune, and in consequence we have given the case unusual attention and have come to the conclusion which we have announced, that it falls clearly within the rule of the law that forbids a fellow servant of a common master from recovering damages from such master for injuries received by reason of the negligence of his servant while engaged in the same line of duty — and the evidence in the case fails to show by any possibility that the appellee’s case falls within any exception to the general rule at present recognized by the laws of the State.

The judgment of the court below is therefore reversed.


text:
    Jacob Greenhood, etc. v. Jerman S. Keator.
    This case is reversed, a the verdict is entirely unsupported by the evidence.
    Appeal from the Circuit Court of Bock Island county; the Hon. John J. Glenn, Judge, presiding.
    Opinion filed February 5, 1885.
    Mr. Eugene Lewis, for appellant.
    Messrs. Sweeney & Walkee, for appellee.
   Lacey, J.

This wa a suit brought by appellant against appellee for the price -f a safe sold and delivered by appellant to appellee. The ordt r for it was obtained by one Barclay, agent for appellant to >btain orders. The defense is that appellee paid Barclay ti 3 price of the sate agreed upon, sixty dollars. The case was tried by the court and a.jury, and the verdict was for the defendant and judgment on the verdict. It appears, however, t tat accompanying the bill of lading was a written direction to pay by draft or remittance to appellant, and that appellee received such direction and promised to do so. Yet the appi llee, after Barclay was discharged from appellant’s employmer t and without his having any authority at the time, or his eve • having had any authority to receive the money, paid it to dm on His application, he claiming to have authority to coll ict it. There is no evidence that Barclay ever had any anti ority to collect the money, or that appellant ever held him ( ut as an agent having authority to collect money on his acco mts. The contract of appellant with Barclay gave him no such authority. The evidence shows that Barclay did not pi y the money over to appellant, which he collected of appellee, but used the same for liis own benefit. This case was here on a former appeal from a former judgment in favor of appellee, and was reversed by this court for reasons set forth in the opinion in that case, which will be found reported in 9 Brad well, page 186. The facts and circumstances of the case as well as the law are fully set out in that opinion and it is not necessary again here to recount the facts, and the law is fully explained there. The case made by the appellee on the trial in the court below was no better than it was on the former trial. Tire court improperly refused to instruct the jury to find for appellant in the manner asked for by him. The verdict is entirely unsupported by the evidence and the judgment is therefore reversed, and because there is no shadow of defense to the right of appellant to recover for the amount of his claim, and to save costs and further litigation, judgment is hereby rendered in this court in favor of the appellant against appellee for the amount of his claim, $75.25 damages, and all the costs in this court and the court below, and that the clerk enter it up in due form.

¡Reversed, and judgment in this court.


text:
    William Cockeram v. Catharine Cockeram et al.
    Appeals — Bill not dismissed. — Where there has been no final disposition of a bill in the court below, and the bill has never been dismissed and no final order made, an appeal will not lie.
    Appeal from the Circuit Court of Grundy county; the Hon. J. McRoberts, Judge, presiding.
    Opinion filed February 5, 1885.
    Messrs. Doud, Wing & Carter, Mr. J. H. Sampson and Mr. A. R. Jordan, for appellant.
    Messrs. Hill & Dibell and Mr. E. Sanford, for appellees;
    that no appeal lies from any interlocutory order, cited Hunter v. Hunter, 100 Ill. 5 9; Gage v. Eich, 56 Ill. 298; Pentecost v. Magahee, 4 Scam. 327; Frederick v. Savings Bk., 106 Ill. 147; R. & M. R. R. Co. v F. L. & T. Co., 70 Ill. 249; Fleece v. Russell, 13 Ill. 32; Hayes v. Caldwell, 5 Gilm. 33; Atkins v. Huston, 5 Bradwell, 626.
   Lacey, J.

The appellant, William Cockeram, filed his bill in the circuit court March the 3d, A. D. 1881, seeking to set aside the will of Si tnuel Cockeram, deceased, the father of appellant, dated Av rust 2, 1879. The appellees were the widow, sons and dam liters of the deceased and their husbands.

During the May term of this court, counsel for appellee entered their motion to dismiss the bill for the reason that there had never bet ti any final disposition of the bill, that the bill had never 1 een dismissed by the court below , that the case was still pen ling in the circuit court, and that no appeal would lie until an order of dismissal was entered in that court. This mot on was not acted on at the time hut it was taken with the ca ;e to be decided with it. The appellees now insist on the r motion, and it becomes necessary for us to consider it.

It appears from the record that an issue of fact in accordance with the provisic is of the statute was made to try the questions whether or : ot the paper offered in evidence purporting to be the last >vill and testament of Samuel Cockeram, deceased, was his last' dll and testament. The case was entered on the law docket and the cause tried at the March term of court, A. D. 1884, on ucli issue. All the entries by the court wore made on the law docket and show that the case was tried by a jury and the verc ict of the jury was rendered in favor of appellees; that the pa >er offered in evidence was the last will and testament of Sami el Cockeram deceased; that there was a motion by appellant ft r anew trial; that the motion was overruled, and that judgim nt was by the court entered on the verdict and appeal by apj ellant prayed to this court and allowed by the circuit court. But no entry was made on the chancery side of the court and ti e bill was never dismissed by any order or decree entered c T record.

It appears that there was no final disposition made of the case. The bill has never been dismissed and no final order made. Until this is done no appeal is possible and one can not be taken to this court.

We think the authorities cited by appellees’ counsel fully sustain the rule of law contended for. See Woodside v. Woodside, 21 Ill. 207; Hunter v. Hunter, 100 Ill. 519; Gage v. Eich, 56 Ill. 298; Pentecost v. Magahee, 4 Scam. 327; Frederick v. Savings Bank, 106 Ill. 147; R. & M. R. R. Co. v. F. L. & T. Co., 70 Ill. 249; Fanning v. Russell, 94 Ill. 390; S. C. R. R. Co. v. Toomer, 9 Rich. (S. C.) 270; Fleece v. Russell, 13 Ill. 32; Hayes v. Caldwell, 5 Gil. 33; and Atkins v. Huston, 5 Brad. 326.

The motion is therefore sustained and the appeal dismissed.

Appeal dismissed.