text:
    Logan A. Gridley et al., Appellees, v. John H. Wood et al. Paul F. Beich, Appellant.
    1. Tenancy in common, § 23

      —when tenant may not bind cotenants by lease. One tenant cannot bind Ms cotenants by a lease of the whole estate without written authority from them to do so, unless such lease is ratified by them.
    2. Tenancy in common, § 23*—when ratification by cotenants of lease by one tenant presumed. A ratification of a lease by one tenant in common of premises owned by tenants in common by cotenants will be presumed when the nonexecuting cotenants have knowledge of such leasing, make no objections thereto and share in the rents arising from the lease.
    3. Tenancy in common, § 23*—when ratification of lease by co-tenant not presumed. The rule that a ratification of a lease by one tenant in common of premises owned .by tenants in common by the cotenants will be presumed when the nonexecuting cotenants have knowledge of such leasing, make no objections thereto and share in the rents arising from the lease, is inapplicable as to a cotenant who is not sui juris when the lease is made.
    4. Guardian and ward, § 23*—when ward not bound by ratification of renewal of lease. A conservator of a tenant in common, without authority from the County Court, cannot bind the ward by his consent to or ratification of a renewal of a lease of the premises by another tenant in common.
    5. Tenancy in common, § 23*—when cotenant leasing premises is bound. A cotenant, by a lease of the “Whole premises, cannot prejudice the rights of the other cotenants, but such lease will be valid as to himself and his undivided interest therein.
    6. Tenancy in common, § 23*—when cotenants bound by lease of premises. Cotenants who have ratified a lease of the whole premises by a tenant in common are bound thereby.
    7. Appeal and error, § 369*—when different theory of case may not be advanced. A litigant cannot try a case upon one issue or theory in the trial court and upon an entirely different one on appeal.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    Livingston & Bach, for appellant.

      W. W. Whitmore and Barry & Morrissey, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Mary Ann E. Gridley, in her lifetime, owned certain parcels of real estate in McLean county, among which were two business properties in the City of Blooming-ton, one known as 109 and 111 East Front street, and the other as 113 East Front street.

On May 13, 1900, she executed a lease whereby she demised to Paul F. Beich, appellant, the store building known as 109 and 111 East Front street, for a term of ten years from January 1, 1901, to January 1, 1911.

On November 22, 1900, Mary Ann E. Gridley died and, upon her death, Logan A. Gridley, Mary G. Bell and Edward B. Gridley each became seized in fee of an undivided one-third interest in all the real estate mentioned, including the business properties aforesaid, as tenants in common.

On August 28, 1907, Edward B. Gridley, individually in his own name and xnthout any authority from his cotenants, executed a written agreement in regard to the said lease executed by Mary Ann E. Gridley of the property known as 109 and 111 East Front street, whereby he purported to give to said Beich the privilege of subletting said property and also the option of renewing the said lease for five or ten years upon giving notice of such intention sixty days prior to January 1, 1911, the date of the expiration thereof. On October 21, 1907, Edward B. Gridley, individually, though designating himself as “agent,” but without any authority from his cotenants, executed a lease whereby he purported to demise to said Beich the other property, known as 113 East Front street, for a period of three years from January 1, 1908, for the sum of $300 per year, with the option of a renewal of said lease for five or ten years at a rental of $360 per year, upon giving notice of such intention sixty days prior to January 1,1911, the date of the expiration thereof.

Sometime prior to October 19, 1910, the exact date not appearing anywhere in the record, the People’s Bank of Bloomington, Illinois, was appointed conservator of said Mary G. Bell. On October 19,1910, said Beich gave written notice to said Logan A. G-ridley, Edward B. Gridley, Mary G. Bell and to the People’s Bank, conservator of said Mary G. Bell, that he would avail himself of the privilege of extending the said lease of the property known as 109 and 111 East Front street, for the period of ten years, pursuant to the extension agreement of August 28, 1907, and also of the privilege of the extension of the lease of the property known as 113 East Front street, for ten years pursuant to the option provision in the lease of said last mentioned property.

On May 6,1909, Edward B. Gridley conveyed all his interests in the said real estate to John H. Wood. On January 7, 1914, Edward B. Gridley died testate.

On July 13, 1915, Logan A. Gridley and Mary G. Bell, by her conservator, the People’s Bank, filed their bill for partition of all the real estate of which Mary Ann E. Gridley died seized. The bill sets out many facts and transactions in regard to the undivided one-third interest owned by Edward B. Gridley in his lifetime and also seeks to quiet title, no questions concerning which are involved in this appeal. Paul F. Beich was made a party defendant and he alone appeals from the decree, which found that he had no interest in the two business properties mentioned.

■ It is alleged in the bill that the said extension agreement of August 28,1907, and the said lease of October 21, 1907, executed by Edward B. Gridley to Beich are void under the Statute of Frauds for the reason that said Gridley was never authorized in writing by his co-tenants to make the same, and that said Beich acquired no interests in the properties by virtue thereof. Beich in his amended answer to the bill seeks to avoid the effect of the Statute of Frauds by averring that after the death of Mary Ann E. Gridley, Edward B. Gridley conducted the business of her estate and also the business of the common property owned by complainants and Edward B. Gridley. as tenants in common, and was their agent for all purposes in reference to said real estate; that he executed said extension agreement and lease as the agent of his cotenants; that Beich entered into possession of said premises and made improvements thereon relying upon said agreement and lease, of which said complainants had full knowledge and never made any objections thereto; that he paid one-third of the rents to said Logan A. Gridley, one-third to Mary G. Bell or to the People’s Bank her conservator, and one-third to Edward B. Gridley during his lifetime, which were received by said respective parties, and that his rights as tenant were recognized by them'; that on October 9, 1910, he served written notices upon said parties that he had elected to renew said leases as aforesaid and that they made no objections thereto; that he had made improvements on the properties and sublet the same; that it was not until after the buildings on said premises had been destroyed by fire did complainants question his right to possession under said leases and the extensions thereof ; that complainants are now estopped from asserting said leases are void by virtue of the Statute of Frauds.

Exceptions by the complainants to this part of the amended answer seeking to avoid the application of the Statute of Frauds were sustained by the chancellor.

Beich also filed a cross-bill wherein it is averred that the lease of Mary Ann E,. Gridley, demising the premises known as 109 and 111 East Front street, contained a provision that in case the building thereon shall be partially damaged by fire, the same shall be repaired as soon as possible by the lessor, and in ease the damage shall render the building entirely untenantable, the rent shall cease until the building shall be put in repair; that on November 3, 1911, the building was partially destroyed by fire; that it has never been repaired nor made tenantable by said tenants in common; that said premises had been sublet at a great increase of rent and the failure to repair the same had caused Beich to suffer damages in the loss of the difference in such rents to the amount of $15,000; that said cotenants be ordered to account for said damages, and to specifically perform the covenants of the lease to repair said building.

A demurrer was sustained to the cross-bill and it was dismissed for want of equity. The decree entered upon the hearing on the bill and amended answer ordered a partition of the premises and found that Beich had no interest therein.

The theory of the answer and cross-bill of Beich is that appellants, who were the cotenants of Edward B. Gridley in his lifetime, by their acquiescence in the extension agreement in regard to the lease of the premises known as 109 and 111 East Front street, and in the lease of those known as 113 East Front street, both executed by said Edward B. Gridley, and their acceptance of their respective portions of the rents under said leases, ratified the said extension agreement and said lease, and are estopped from pleading that the same are void under the Statute of Frauds.

One cotenant cannot bind his cotenants by a lease of the whole estate without written authority from them to do so, unless such lease is ratified by them. A ratification by the remaining cotenants of a lease so executed by the other cotenant will remove it from the effect of the Statute of Frauds, and in such case ah the cotenants will be bound by its terms. Such a ratification will be presumed when the nonexecuting co-tenants have knowledge of such leasing, make no objections thereto and share in the rents arising from the lease. Schwartz v. McQuaid, 214 Ill. 357. This rule can apply, however, only to such cotenants as are sui juris when the contract or lease is made. A person who is non compos or otherwise under disability cannot make such ratification, nor in such case can it be presumed. The exact date of the appointment of the conservator for Mary G. Bell is not shown by the record, but it appears by the answer of Beich that on October 19, 1910, he served notice on said conservator of his election to renew both leases for a further period of ten years from January 1, 1911. The extension agreement executed by Edward B. Gridley was but an option, without consideration, granting to Beich the privilege of renewal of the first lease, and was without force until availed of by him. At the time he sought to accept the benefit of the option, Mary G- Bell was under disability, was not bound by it, and could not give her consent thereto. Neither could- she be bound by the consent or ratification of the renewal by her conservator, unless the latter had been authorized to agree to such renewal by the County Court. Section 19, ch. 86, vol. 4, J. & A. Ann. St. ¶ 7303, provides: “The conservator may lease the real estate of the ward, upon such terms and for such length of time as the County Coupt shall approve.” The statute is but declaratory of the general rule of law, which is stated in 22 Cyc. 1186, as follows: “The guardian or committee cannot, without leave of. court, sell, mortgage, or lease the lunatic’s real property, and his acts, so long as they are unauthorized and unsanctioned by the court, can have no effect in divesting the lunatic’s title to real estate.” It is apparent that the conservator of Mary G. Bell, without having been authorized by the County Court, could not lease the interest of his ward in the property in question, and much less ratify the extension agreement or the lease executed by Edward B. Gridley.

It is urged, however, that while this might be true as to the interest of Mary G. Bell, yet Edward G. Gridley, having executed the extension agreement and the lease (together with any person subsequently acquiring his interest), and also Logan A. Gridley, having ratified the acts of Edward B. Gridley, would be bound thereby. A cotenant, by a lease of the whole of the common property, cannot prejudice the rights of the other cotenants, but such lease will be valid as to himself and his undivided interest therein, and on the same principle any of the other cotenants who may have ratified such lease will be bound thereby. Zeigler v. Brenneman, 237 Ill. 15. In the case at bar no such theory was advanced by appellant Beich, either in his answer or cross-bill, and no such contention was made in the court below. A litigant cannot try a ease upon one issue or theory in the trial court and upon an entirely different one on appeal. Cassem v. Kennedy, 147 Ill. 660; Rogan v. Arnold, 233 Ill. 19. For this same reason also this court cannot consider the further contention of appellant that if the extension agreement and the lease are of no effect, then in law appellant Beich became a tenant from year to year, as this proposition was neither raised by the pleadings nor advanced in the court below.

The court did not err in sustaining the exceptions to the answer or the demurrer to the cross-bill and the decree must therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Emma Forwood Denny, Appellant, v. John J. Cox, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Vendor and purchaser, § 124

      —when sufficiency of abstract is to be determined. The- sufficiency of an abstract of title, upon a bill for specific performance of a contract for the sale of real estate, is to be determined as of the date fixed by the contract or by the agreement of the parties when the party was to furnish the abstract and the deal was to be closed, and not at some time subsequent to the filing of a bill for specific performance.
    2. Vendor and purchaser, § 124*—when abstract is insufficient. A sufficient abstract of title is not furnished where it was necessary for the vendor to bring a suit to quiet title, and the only service that could be nad on the defendants was by publication and it would be necessary to allow three years to pass before the right óf such defendants to open up the decree would be barred.
    Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Emma Forwood Denny, complainant, against John J. Cox, defendant, for the specific performance of a written contract for the sale of real estate by complainant to defendant. From a decree dismissing the bill for want of equity, complainant appeals.
    Jesse Peebles, for appellant.
    James H. Murphy and Charles C. Terry, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Louis Monasterolo, Appellant, v. Superior Coal Company, Appellee.
    1. Mines and minerals, § 191

      —when instruction on liability for failure of examiner to mark dangerous place is erroneous. In an, action by a miner for injuries received due to the falling of loose stone from the rib of a manway near the roof of the mine, an instruction that the law does not require a mine examiner to be infallible or to mark a place as dangerous in a coal mine unless it is in fact dangerous at the time of examination; that his failure to mark a dangerous place is not a violation of law unless wilful, and that in order that the company may be held liable for injury to a miner the failure to make such examination must be conscious, held to be erroneous.
    2. Mines and minerals, § 108*—when mine owner cannot excuse himself from liability for failure to mark dangerous place. The owner or operator of a mine cannot excuse himself from liability growing out of a wilful violation of the Mining Act in failing to properly examine the mine and mark a dangerous place which is known, or ought to be known, on the ground that the mine examiner thought in good faith that the place was safe, and he acts at his peril in not marking such a place.
    Appeal from the Circuit Court of Macoupin county; the Hon. Frank W- Burton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    Andrew J. Duggan, Edward L. Beebe and Jesse L. England, for appellant.
    Edward C. Knotts, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.-

This suit grows out of an injury sustained by appellant on the 7th day of July, 1915, while employed as a loader of coal in mine No. 3, owned and operated by appellee. A verdict was returned finding appellee not guilty, on which verdict judgment was rendered.

The declaration contains two counts. The first is based upon the Mines & Mining Act and, after averring the rejection of the provisions of the Workmen’s Compensation Act by appellee, charges that there was, over the place where the .appellant stopped to wait Ms turn to enter the cage for the purpose of leaving said mine, a dangerous place, to wit, a quantity of loose stone at the point where the rib of the manway joined the. roof thereof, and that this dangerous condition was known to appellee, or had existed for such length of time that the same, by the exercise of ordinary diligence, might have been known to appellee, and the same was not marked as dangerous contrary to the provisions of the statute in such case made and provided. The second is a common-law count and avers a failure to furnish a reasonably safe place for appellant’s use in passing to and from his work in the mine.

The evidence tends to show that there was cut through the coal, on the east side of the main haulage way, a passageway from the main haulage way to a run-around and known as the east manway. The employees, including appellant, who worked in the part of the mine in question, on leaving the same, were required to pass through the run-around on the east side into the manway and to remain there in regular order awaiting their turns to take the cage and ascend from the mine. This manway was eqMpped with benches for the men to occupy while waiting to be hoisted out of the mine at the end of each day’s work. There were about six hundred men employed in the mine, and formerly when they came to the cage to be hoisted out they would crowd each other in endeavoring to reach the cage first, thereby endangering their safety. To avoid this danger, several years before appellant was injured, appellee had caused the manways to be equipped with benches on which the men could sit while they awaited their turns, and had painted a white mark six or eight inches in width, with the words “Dead Line” in black letters, about four inches in height, on the roof of the manway and about twenty-five feet in from the mouth thereof. A rule was promulgated requiring the workmen to wait in the respective manways back of this dead line until called in groups of fourteen from the manways alternately, and then to proceed in single file along the sides thereof to the cage at the bottom to receive them, fourteen men being the number allowed by law to be hoisted at one time in the cage. Appellee, at the time he was injured, was sitting by the rib awaiting his turn to be called to the cage to be hoisted out of the mine, when a piece of slate or stone fell from the rib near the roof and struck him on the head causing the injuries complained of. At the time he was injured he was sitting several feet beyond the dead line. The evidence further tended to show that two mine examiners had examined the place where the fall of rock occurred about ten o ’clock on the night of July 8th, and that one of them had examined it again between half past four and five o’clock on the morning of July 7th, and they testified that no dangerous condition was found. Appellant entered the mine for work about seven o’clock on the morning of July 7th. It was contended on the trial that appellant could not recover because he violated the rule in passing beyond the dead line before he was called to enter the cage. There was some evidence tending to show that the rule was habitually violated by the miners. There was also evidence tending to show that there was a checkboard four or five feet beyond the dead line and that the miners were permitted to go as far as the checkboard.

The principal contention of. appellant is that the court erred in giving instruction No. 11, on behalf of appellee. This instruction is as follows:

“The Court instructs you that the law does not require a mine examiner to be infallible or to mark a place as dangerous in a coal mine unless such place is in fact dangerous at the time when the mine examiner makes the examination; nor is the failure by a mine examiner to mark a dangerous place in a coal mine a violation of the law unless such failure is wilful on the part of the mine examiner. The honest mistake or the mere negligence of a mine examiner in failing to discover or mark a dangerous place in a coal mine, is not sufficient to make the company employing him liable if one is injured on account thereof, but such failure must be a conscious failure on the part of the mine examiner before the company can be held liable for any injury resulting therefrom.”

It is insisted by appellee that if the place in question was examined by the mine examiner and he in good faith concluded the place was not dangerous, this constituted a defense to the action, and that mere negligence in failing to discover a dangerous condition is not sufficient to constitute liability, and the case of Cook v. Big Muddy-Carterville Min. Co., 249 Ill. 41, is cited as sustaining the rule of law laid down in the instruction. It must be conceded that this case does sustain the rule of law as announced in the instruction, and the question is whether that case is conclusive as to the construction to be given to the statute. The first case in which it was attempted to define what was meant by wilful violation of the statute was Aetitus v. Spring Valley Coal Co., 246 Ill. 32, where there was a very thorough and exhaustive discussion of the question and it was held :

“We do not think the owner or operator of a mine can excuse himself from liability growing out of a wilful violation of the Mines and Mining Act,—that is, from a conscious violation of the act,—in failing to properly examine the mine and mark dangerous places therein which are known to him, on the ground that his examiner or manager in good faith thought the place was not dangerous. If this were the law, the right of recovery would not rest upon a conscious violation of the statute but upon the opinion of the owner or operator or his vice principal,—that is, his examiner or manager,—as to whether the mine was safe or in a dangerous condition. It has been repeatedly held by this court that it is the duty of the owner or operator of a mine to have his mine examined and if it is in a dangerous condition to have the dangerous places designated by the statutory marks, and if he fails in either particular, with knowledge of its dangerous condition or with knowledge of facts from which he ought to know of its dangerous condition, he is liable to a person in the mine under his employ who is injured as a result of his wilful failure to obey the mandates of the statute. If the mine is in a dangerous condition, and the owner or operator has failed, with knowledge of its condition, to comply with the statute, he is liable, and he cannot excuse himself on the ground that he had the mine examined and in good faith thought it was not dangerous. His liability does not rest upon the ground that in good faith or bad faith he thought there was no danger in the mine, but upon the ground that he has, knowing the facts which made the mine dangerous, failed to have the statutory marks properly placed in the mine. When the mine owner or operator is advised of the conditions in the mine, he must place in the mine, if it is dangerous, the statutory marks, and if he fails to do so he acts at his peril, and he cannot excuse himself because he or his examiner or manager may think the mine safe. To so hold would be to permit the mine owner or operator, or his examiner or manager, to usurp the functions of the court and jury, and to pass upon a question which, in every case like this, is a matter of proof and is to be determined as a fact by the jury.”

The opinion in the Cook case, supra, does not refer to nor mention the Aetitus case, and the latter was evidently not called to the attention of the court. The Aetitus case is cited and sustained in the case of Piazzi v. Kerens-Donnewald Coal Co., 262 Ill. 30, and in the still later ease of Schultz v. Henry Ericsson Co,, 264 Ill. 156. And neither in the opinion in the Piazzi case nor in the Schultz case is the Cook case mentioned or referred to. As the Piazzi and Schultz cases are the last expressions of the Supreme Court upon this question, and as they both reaffirm the rule as originally announced in the Aetitus case, we must hold that the construction placed upon the statute as announced in the last-mentioned case must obtain. It is clearly apparent therefore that the instruction was erroneous, and it being vital to plaintiff’s 'case, the giving of it was reversible error. The judgment is reversed and cause remanded.

Reversed and remanded.


text:
    In the Matter of the Estate of Emily C. Rusk, Deceased. Emma C. Felter, Plaintiff in Error, v. Martha D. Erwin, Administratrix, Defendant in Error. Emma C. Felter, Plaintiff in Error, v. Martha D. Erwin, Administratrix, Defendant in Error.
    1. Gifts, § 15

      —when valid gift of certificate of deposit is made. A valid gift of a bank certificate of deposit is made where the donor indorses the certificate on the back and gives it to the donee and tells her to keep it as her own property.
    2. Gifts, § 30*-—What constitutes a gift causa mortis. A gift causa mortis is a gift of personal property in expectation of death from a present disorder or peril.
    3. Gifts, § 1*—what constitutes a gift inter vivos. In order to constitute a gift inter vivos it is essential that the gift be absolute and irrevocable; that the giver part with all present and future dominion over the property given; that the gift go into effect at once and not at some future time; that there be a delivery of the thing given to the donee, and that there he such a change of possession as to put it out of the power of the giver to repossess himself of the thing given.
    4. Gifts, § 9*—what is effect of delivery to agent. While a delivery of. a gift may be made to a third party in order that the latter may deliver the subject of the gift to the donee as the agent of the donor, the gift is not complete until there is an actual delivery to the donee; and until the gift is completed by delivery, the donor can revoke the agent’s authority and resume possession of the gift.
    5. Gifts, § 9*-—what is effect of delivery to trustee. Where a delivery of a gift is to a trustee for the benefit of the donee, such delivery is good and the death of the donor will not revoke it.
    6. Gifts, § 9*—when hank holds certificates of deposit as agent of donor. A bank holds certificates of deposit as agent of the donor and not as trustee under an arrangement whereby it is authorized by the donor to hold certain certificates of deposit payable to the donor or another person or the survivor, in escrow, and in the event of the donor’s death before that of the donee to pay the amount due on such certificates to the donee for her special use and benefit, even though the bank without authority pays the interest and parts of the principal to the donee before the death of the donor.
    7. Gifts, § 18

      —what constitutes a testamentary disposition and not gift. A written instrument whereby the donor of certificates of stock, payable to the donor and donee, authorizes the bank issuing them and to which they are delivered, in the event of the donor’s death, to pay the amount due to the donee for the latter’s sole use and benefit, and signed by the donor and witnessed by one person, is a testamentary disposition, good only when made by a valid will.
    Error to the Circuit Court of Jersey county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with directions.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    Statement by the Court. Emily C. Rusk departed this life intestate on the 8th day of May, A. D. 1914, leaving surviving her, defendant in error, Martha D. Erwin, her daughter and now administratrix of her estate, and the plaintiff in error, Emma C. Pelter, the only child of a deceased daughter, as her sole and only heirs at law.

      Emily C. Rusk at the time of her death, and had for a number of years prior to that time, resided in her own home in the City of Jerseyville. For more than thirty years her daughter, Martha D. Erwin, the defendant in error, and James Rhoads, the son of Martha D. Erwin by a former husband, had made their home with Emily C. Rusk and neither of them had paid any board nor in any way contributed to the expense of the maintenance of the home. Upon the death of Emily C. Rusk, Martha D. Erwin was appointed administratrix of her estate and asked for and was allowed an award in the sum of $750.
    Plaintiff in error filed objections to the final report of the administratrix by which she objected to the allowance of the award to Martha D. Erwin and also because the administratrix had not accounted to the estate for certain moneys deposited in the State Bank of Jerseyville and evidenced by certain certificates of deposit.
    The first certificate of deposit is as follows:
    “The State Bank of Jerseyville. No. 308.
    “Jerseyville, 111., Novem. 2, 1905.
    “This certifies that Mrs. Emily C. Rusk has deposited in this bank two, thousand dollars ($2,000.00) payable to the order of herself or Mrs. Miartha D. Erwin, or the survivor of either six months after date, with interest to maturity only at the rate of 3 per cent per annum on return of this certificate.
    S. H. Bowman, President.
    “No interest after maturity.
    “Certificate of deposit.
    “Not subject to check.”
    The bank executed the following receipt:
    “Jerseyville, 111., November 2nd, 1905.
    “Received of Emily C. Rusk, time certificates of deposit No. 308 issued by the State Bank of Jerseyville, for the sum of two thousand dollars; said certificate of deposit is payable to Mrs. Emily C. Rusk or Martha D. Erwin or the survivor, and in the event of the death of Emily C. Busk before the death of Martha D. Erwin, the State Bank of Jerseyville is authorized by Emily 0. Busk to pay the amount due on said certificate of deposit to Martha D. Erwin.
    The State Bank of Jerseyville.
    By S. H. Bowman.”
    The second certificate, numbered 371, dated December 20, 1905, is for the sum of $600, and is otherwise in the same language as certificate 308. On this date Emily 0. Busk executed the following document:
    “Jerseyville, 111., Dec. 20th, 1905.
    “To the State Bank of Jerseyville:
    “You are authorized to hold your time certificates Nos. 308 for $2,000, and No. 371 for the sum of $600, both payable to myself or Martha D. Erwin, or the survivor, in escrow, and in the event of my death before the death of Martha D. Erwin, you are instructed to pay the amount due on said certificates to said Martha D. Elrwin for her sole use and benefit.
    Emily 0. Busk.
    “Witness,
    S. H. Bowman.”
    The bank on the same day executed the following receipt:
    “Jerseyville, Ill., December 20th, 1905.
    “Received of M“rs. Emily Busk our time certificate No. 371 for the sum of six hundred dollars, payable to herself or Martha D. Erwin, or the survivor; said certificate of deposit is to be held in escrow, and in the event of the death of Mrs. Emily Busk before the death of Martha D. Erwin, the amount due thereon is to be paid to said Martha D. Erwin.
    The State Bank of Jerseyville,
    By S. H. Bowman, President.”
    The third certificate, numbered 1535, dated November 5, 1907, is for the sum of $1,200, and otherwise is in the same language as the others. On this day Emily C. Busk executed a similar document and the bank executed a similar receipt as the previous document and receipt executed December 20, 1905.
    The fourth certificate, numbered 3478, dated Decern-, ber 22, 1909, is for the sum of $800, and otherwise is in the same language as the others. Emily C. Busk on said date executed a similar document and the bank gave a similar receipt as the previous ones.
    The fifth certificate, numbered 3483, dated December 24, 1909, is for the sum of $600, and otherwise is in the same language as the previous certificates but no document nor receipt was executed by Mrs. Busk op the bank in regard to this certificate.
    / It was held by the court below that Martha D. Erwin /was entitled to the award of $750, that the certificates of deposit mentioned were her individual property and were not assets of the estate of Emily C. Busk, and the objections of plaintiff in error to the report of the administratrix were overruled. On the back of each certificate are indorsements of interest paid every six months, and the evidence shows that the interest was paid by the bank to Martha D. Erwin. On two occasions part of the principal was indorsed as paid on two of the certificates, which the evidence tends to show was paid by the bank to Martha D. Erwin. The bank had in its possession all of these certificates at the time of the death" of Emily C. Busk with the exception of the last certificate, numbered 3483, for the sum of $600, and the evidence tends to show that on the date of this certificate Mrs. Busk indorsed her name on the back thereof, gave it to Mrs. Erwin and told her it was her’s and the latter took the certificate and kept it as her own property.
    Fred A. Du Hadway, W. J. Chapman and P. M. Hamilton, for plaintiff in error.
    Thomas F. Ferns and Sumner & Reardon, for defendant in error.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

We have no doubt that by indorsing certificate No. 3483 and delivering the same by Mrs. Busk in her lifetime to Mrs. Erwin with the assertion that it was Mrs. Erwin’s property, a valid gift of the certificate from Mrs. Busk to Mrs. Erwin was consummated. As to the other four certificates, however, no title ever passed to Mrs. Erwin.

Title to the certificates in Mrs. Erwin cannot be supported upon the theory that the transactions mentioned constituted gifts either causa mortis or inter vivos. A gift causa mortis is a gift of personal property in expectation of death from a disorder or peril then present. There is absolutely no evidence in the record to sustain the theory of gifts causa mortis. Telford v. Patton, 144 Ill. 611; Rosenthal v. People, 211 Ill. 306; First Nat. Bank of Chicago v. O’Byrne, 177 Ill. App. 473; Lounsberry v. Boger, 193 Ill. App. 384.

In order to constitute a gift inter vivos it is essential that the gift be absolute and irrevocable; that the giver part with all present and future dominion over the property given; that the gift go into effect at once and not at some future time; that there be a delivery of the thing given to the donee, and that there be such a change of possession as to .put it out of the power of the giver to repossess himself of the thing given. Telford v. Patton, supra. A gift inter vivos is defined in 20 Cyc. 1192,- as follows:

“A gift inter vivos is a contract which takes place by the mutual consent of the giver, who divests himself of the thing given in order to transmit the title of it to the donee gratuitously, and the donee who accepts and acquires the legal title to it. It operates, if at all, in the donor’s lifetime, immediately and irrevocably; it is a gift executed; no further act of parties, no contingency of death or otherwise, is needed to give it effect.”

While a delivery may be made to a third party in order that the latter may deliver the subject of the gift to the "donee as agent of the donor, the gift is not complete until there is an actual delivery to the donee; and until the gift is completed by delivery, the'donor can revoke the agent’s authority and resume possession of the gift. If the delivery is to a trustee for the benefit of the donee, such delivery is good and the death of the donor will not revoke it. In the case of Trubey v. Pease, 240 Ill. 513, it was said:

“The law is well settled that title to personal property by gift may be passed by delivery of it by the owner to another as trustee for the donee. In such case, delivery to the trustee is deemed, in law, delivery to the donee, and divests the donor of all control over or right or title in the property, and the gift is irrevocable. When a trust has been perfectly created it is not revocable by the death nor at the will of the party who created it. (Taylor v. Harmison, 179 Ill. 137; Telford v. Patton, 144 id. 611; Light v. Scott, 88 id. 239; Lawrence v. Lawrence, 181 id. 248.”)

Mrs. Busk never lost dominion over or control of these certificates or the money represented by them. She could at any time before her death have revoked the written authority given to the bank to pay the certificates to Mrs. Erwin in the event that she should die before Mrs. Erwin did. Mrs. Erwin never acquired any right, title or interest in or to the certificates during the lifetime of Mrs. Busk and never could have acquired any except in the event that Mrs. Busk should die be-, fore she did. \The bank did not hold the certificates as a trustee for Mrs. Erwin but simply as the agent of the donor.’ Some stress is laid upon the fact that some of the interest as it accrued was paid to Mrs. Erwin by the bank and that at two different times parts of the principal were paid to her as showing an intention on the part of the donor to pass title to the certificates to the donee. This contention has no force in view of the evidence. The bank had no lawful right to pay Mrs." Erwin any part of the interest or principal until after the death of Mrs. Busk without express authority from the latter to do so, and of this there is no evidence. No action of the bank in violation of its authority could change the character of the transaction. The president of the bank testified that Mrs. Rusk was not able to go to the bank very often in the latter years of her life and he thought he was paying the interest to Mrs. Erwin as the agent of Mrs. Busk, and this undoubtedly was the case. The fact that the word escrow was used in the directions to the bank is of little or no importance, as the circumstances show that the certificates were not in fact delivered in escrow. It is practically conceded by counsel for defendant in error that the title of the defendant in error to these certificates cannot be sustained on the theory that they were gifts either inter vivos or causa mortis. Counsel in their argument, state: “We contend that there never was any delivery in escrow; but that there was an absolute present interest vested in Mrs. Erwin as of the date of said certificates. The interest vested in Mrs. Erwin was either a joint.tenancy with Mrs. Busk; or, Mrs. Busk and Mrs. Erwin were tenants in common for life, with a contingent limitation to the survivor.” If this proposition should be entitled from any point of view to serious consideration, it would at least be dependent upon a valid delivery of the certificates. So long as Mrs. Busk had control and dominion of the subject of the gift and the power of revocation, Mrs. Erwin could acquire no rights whatever therein. The whole transaction shows clearly that Mrs. Busk was attempting to make a testamentary disposition of her property without the formality of a will.

In the case of Barnum v. Reed, 136 Ill. 388, it was held:

“If the gift does not take effect as an executed and completed transfer to the donee, either legally or equitably, during the life of the donor, it is a testamentary disposition, good only when made by a valid will. (Basket v. Hassell, 107 U. S. 602; Comer v. Comer, 120 Ill. 420; Cline v. Jones, 111 Ill. 563; Walter v. Ford, 74 Mo. 195; McCord v. McCord, 77 id. 166; Gano v. Fisk, supra [43 Ohio St. 462].”)

In Taylor v. Harmison, 179 Ill. 137, it was held:

“If the intended gifts did not take effect as executed and completed gifts, but were to be completed by delivery after his death, it would be an attempted testamentary disposition of the notes. In order to complete the gifts it was necessary that there should be a delivery by which Whitnah parted with all control over the notes, reserving no right to reclaim or repossess himself of them. Such a delivery must be absolute, and the donor must part with all his present and future interest and control over the property. (Barnum v. Reed, 136 Ill. 388; Telford v. Patton, 144 id. 611; Williams v. Chamberlain, 165 id. 210.”)

Plaintiff in error has not argued the assignment of error in regard to the allowance of the award to Mrs. Erwin, and it must be considered as waived. The judgment of the Circuit Court is reversed with directions to enter an order in accordance with the opinion herein expressed. The cost's are taxed against Martha D. Erwin in her personal capacity.

Reversed with directions.


author: Mr. Justice Graves

text:
    Lindsey Corbly, Defendant in Error, v. Lida Corbly and Fred M. Corbly. Lida Corbly, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Continuance, § 21

      —when motion for on ground of ill health of defendant is properly denied. A motion for continuance based on the ground that the health of one of two defendants was such as to render it inadvisable for her to attend the trial as a witness is properly denied within the discretion of the court, where there is no sufficient showing as to when her health is likely to be such as to warrant her in appearing in court, or of any diligence in securing her deposition between the date when the case was first continued and the date to which it was then continued, or of any reason why the same was not taken, or of why it would not have been satisfactory.
    Error to the County Court" of Ford county; the Hon. John H. G-illan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    Statement of the Case.
    Action of forcible entry and detainer by Lindsey Corbly, plaintiff, against Lida Corbly and Fred M. Corbly, defendants. From a judgment for plaintiff, defendant Lida Corbly brings error.
    Kerr & Lindley and Schneider & Schneider, for plaintiff in error.
    Dobbins & Dobbins, Acton & Acton and Oscar H. Wylie, for defendant in error.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Continuance, § 31*—discretion of court. A motion for a continuance on the ground of ill health of a party defendant is addressed solely to the discretion of the trial judge.

3. Appeal and ebbob, § 1350*—when exercise of discretionary power by court is not error. The exercise of a discretionary power by a court is never error unless it is clearly abused.

4. Continuance, § 49*—when affidavit for is insufficient. An affidavit for a continuance because of the ill health of one of two party defendants, showing that the instrument sued on is a forgery and that no one can testify as to - such fact except such defendant, is insufficient where the plea of defendant is not verified, as under section 52 of the Practice Act (J. & A. f 8589), providing that no person shall be permitted to deny the execution of an instrument in writing sued on unless he shall verify his plea by affidavit, such party would not have been allowed to testify that the instrument was a forgery if she had been in court.

5. Landlobd and tenant, § 473*—when no notice to quit or demand for rent is necessary. Where a tenant claims title adverse to his landlord, no notice to quit or demand for rent is necessary before bringing suit to dispossess him.

6. Landlobd and tenant, § 474*—when notice or demand for rent is sufficient. Where notice of the landlord’s election to terminate the tenancy for nonpayment of rent and for immediate possession is given, no other notice or demand for rent is necessary before beginning an action of forcible entry and detainer.

7. Tbial, § 198 —when direction of verdict for plaintiff is proper. There is no error in instructing a jury in a forcible entry and detainer action to find the issues for plaintiff where all the essential elements necessary to plaintiff’s right of recovery are proven and uncontroverted.


text:
    Chicago Savings Bank & Trust Company, Plaintiff in Error, v. L. H. Coleman et al., Defendants in Error.
    Mortgages, § 703

      —what determines right of redemption 6y judg-. ment creditors. The right of priority of judgment creditors to redeem from a mortgage foreclosure sale after the expiration of the twelve-month period in which the mortgagor has the right of redemption is determined by the date of the original judgment, whether that judgment is rendered in the county where the property sought to be redeemed is situated or some other county of the State, and it is immaterial that a transcript of the prior judgment in another county is not filed in the county in which the land is situated before the rendition of another judgment in such latter county.
    Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    Keithley & Keithley, for plaintiff in error.
    Barber & Barber, for defendants in error.

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

   Mr. Justice Graves

delivered the opinion of the court.

On May 13, 1915, certain lands of one John S. Level in Sangamon county, Illinois, were sold at foreclosure sale. The mortgagor did not redeem the premises from that sale.

At the time of the sale there were.in existence four judgments against the mortgagor as follows:

One in favor of John 0. Chrystal recovered in the Circuit Court of Cook county, Illinois, on December 7, 1912, a transcript whereof was filed in the office of the clerk of the Circuit Court of Sangamon county on December 14, 1912; one in favor of Arthur H. Renaud recovered in the Municipal Court of Chicago, Illinois, on February 3, 1914, a transcript whereof was filed in the office of the clerk of the Circuit Court of Sangamon county on August 27, 1914; one in favor of L. H. Coleman recovered in the Circuit Court of Sangamon county, Illinois, on November 9, 1914; and one in favor of the Chicago Savings Bank & Trust Company recovered in the Circuit Court of Cook county, Illinois, on January 28, 1913, a transcript whereof was filed in the office of the clerk of the Circuit Court of Sangamon county, Illinois, on November 10, 1914.

Neither John C. Chrystal nor Arthur H. Benaud has ever made any attempt to redeem the land in question under their judgments and they are in no way interested in these proceedings.

The sole question here involved is which of the holders of the other two judgments has the prior right to redeem.

It is claimed on the part of the Chicago Savings Bank & Trust Company that the right of priority is determined by the date of the original judgment, whether that judgment is rendered in the county where the property sought to be redeemed is situated or some other county in the State, while the contention of the representatives of the Coleman judgment is that in- order that a judgment in a county other .than the one in which the land is located can be held to have the prior right to redeem, not only must the judgment itself be prior to any judgment in the county where the land is located, but that the transcript of it must be filed in the office of the Circuit Court in such county prior to the date of any judgment there recovered. The Circuit Court held that defendant in error had the prior right to redeem, and entered an order accordingly.

Section 18, ch. 77 (J. & A. ¶ 6764), provides that the defendant, his heirs, administrators, assigns, or. any person interested in the premises, through or under him, may redeem twelve months after the premises are sold.

Section 20 of the same chapter (J. & A. ¶ 6766) provides that if those mentioned in section 18 do not redeem within twelve months after the sale, then that any judgment creditor, or those claiming under or through them, may redeem within fifteen months after the sale.

Section 24 of the same chapter (J. & A. ¶ 6770) provides: “"When there are several decree or judgment creditors, the creditor having the senior judgment or decree shall have the preference to redeem during the first two days next after the expiration of the twelve months, and the other creditors shall respectively have preference to redeem during a like time, in the order of seniority of their several judgments or decrees; but where two or more judgments or decrees bear equal date, the creditor first paying the redemption money shall have preference.”

The language of that statute is certainly clear. By its terms it gives to judgment creditors priority in the matter of redemption in the order of the dates on which thoir judgments were recovered. Defendant in error however insists that these sections must be read and construed in connection with section 1 of chapter 77 (J. & A. ¶ 6747), and that when these sections are all read together the word “judgment” must be construed to mean the lien of the judgment and the right to have an execution issue in the county where the land lies. The section 1 referred to provides: ‘ Upon the filing in the office of the clerk of any court of rec-' ord in any county in this State, of a transcript of a judgment or decree rendered in any other county of this State, such judgment shall have the like force and effect, and shall be a lien upon the real estate of the party against whom the same is obtained in said county where filed, and execution may issue thereon in zsaid county, in like manner as in the county where originally obtained. ’ ’

It may be conceded for the purpose of this case, although we are not deciding that point, that, since the passage of the last section above quoted, a judgment in a county other than the one where the land is located will not furnish a basis for redemption until, by the filing of a transcript of such judgment in the county where the land is, the right to have an execution issue there exists, but it seems certain that the priority of the right to redeem still depends on the date of the judgment proper and not upon either the date of the filing of the transcript or. of the issuing of the execution. The law authorizing the filing of transcripts of foreign judgment in the various counties of this State certainly was never intended to restrict or limit the rights of judgment creditors as theretofore existing, as would be the case if such a construction should prevail, but was rather intended to give additional rights and a surer means of collecting claims. The filing of a transcript of a judgment in a county foreign to the one where the judgment was recovered does not give a new judgment in such county. It gives to such foreign judgment the same force and effect in the county where the transcript is filed as it has in the county where it was obtained. If it is void for want of jurisdiction originally, or is for any other reason voidable or irregular, such defects or irregularities are not cured by filing the transcript somewhere else. The judgment itself is all the time local in the county where it was recovered. It is only its force and effect that is carried into a foreign county by the filing of a transcript there.

The Supreme Court in Heinroth v. Frost, 250 Ill. 102, said:

“The right of a creditor to redeem does not depend upon any lien on the property, but exists solely by reason of section 20 of chapter 77 of the Revised Statutes of 1874. ■ * * * The only requirement of that section is that the creditor shall have a judgment upon 'which an execution is authorized to issue, and it may be in any county or any court in the State. Any such judgment creditor may redeem by following the course directed by the statute.”

The right of plaintiff in error to redeem was prior to that of defendant in error. The order of the Circuit Court is reversed and the cause is remanded to that court with directions to enter an order in accord with the views here expressed.

Reversed and remanded with directions.


text:
    McNeil & Higgins Company, Appellant, v. Greer College, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied July 2, 1917.
    Statement of the Case.
    Action by McNeil & Higgins Company, a corporation, plaintiff, against Greer College, a corporation, defendant, to recover on account for groceries sold to one E. L. Bailey, who was running such college for his personal profit, and styled himself as “President.” From a judgment for defendant, plaintiff appeals.
    Oliver D. Mann and Acton & Acton, for appellant.
    Walter T. Gunn and Jay Briggs, for appellee.

      Abstract of the Decision.
    Colleges and universities—■when college is not liable for goods sold to person running institution for personal profit. In an action against a college on a note for groceries sold to the self-styled president, who ran a dining hall in connection with the institution and ran the college under an arrangement with the trustees, who kept' the buildings in repair and charged no rent and allowed defendant the profits made and a certain sum out of the endowment fund, where it appeared that the trustees did not know of the extension of credit to defendant until after payments became delinquent, or of his ordering goods as president of the institution until after suit was brought on the note of such president and there was no proof that such president was allowed to buy anything on the credit of the college, held that a verdict for defendant was properly directed.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    William Ryan, Appellee, v. L. E. Brown, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Tazewell county; • the Hon, Theodore N. Green, .Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied and opinion modified and refilled July 2, 1917.
    Statement of the Case.
    Action by William Ryan, plaintiff, against L. E. Brown, defendant, to-recover the purchase price paid for a colt sold by defendant to plaintiff. From a judgment for plaintiff for $180, defendant appeals.
    Curran & Dempsey, for appellant.
    Prettyman, Velde & Prettyman, for appellee.

      Abstract of the Decision.
    1. Sales, § 262*—what constitutes warranty of animal. The statement in the advertisement of a horse for sale that the horse is “sound” constitutes a warranty and not a mere representation, especially where the seller offers to return the money paid for any horse which is shown by certificate of the examining veterinarian to have any other unsoundness or blemish than that pointed out before the sale.
    2. Sales, § 269*—where horse is not sound. A horse which is afflicted with distemper at the time of sale is not sound.
   Mr. Justice Graves

delivered the opinion of the court.


author: Mr. Presiding Justice Thompson

text:
    Childers & Lillienstein, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Carriers, § 248

      —when evidence does not show injury to horse by carrier. In an action by a shipper of a car of horses to recover for injury of a horse, evidence • held insufficient to show Siat the horse was injured while in the possession of defendant.
    2. Carriers, § 241*—when evidence is insufficient to show waiver of notice of injury to stock. In an action by a shipper of a car of horses to recover for injury of a horse, evidence held insufficient to show that the shipper served the notice required by the shipping contract providing that no claim for loss or damage shall be valid unless made within ten days from the time the stock is removed from the car, or that such notice was waived.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of facts.
    Opinion filed July 14, 1917.
    Graham & Graham, for appellant; John G. Drenan, of counsel.
    Smith & Friedmeyer, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Childers & Lillienstein, plaintiff, is a corporation. Its principal oEce is in Springfield, Illinois. The business of the corporation is buying, selling and shipping live stock. On August 5, 1915, plaintiff shipped part of a carload of horses from Cooksville, Illinois, consigned to Guyton & Harrington at Bast St. Louis, over the defendant railroad, with directions to stop the car at Springfield, Illinois, to finish loading. Plaintiff began this suit November 22, 1915, before a justice to recover damages for injury to one of the horses claimed to have been injured when unloaded at Bast St. Louis. Prom the judgment of the justice an appeal was taken to the Circuit Court, where on a trial before a jury a verdict was returned in favor of plaintiff for $54, on which judgment was rendered. The defendant prosecutes this appeal.

The shipment was made under a uniform limited liability live stock contract, signed by an agent of appellee, which was introduced in evidence by it. The contract contains an agreement by the shipper that no claim for loss or damage against the carrier shall be valid unless made in writing, verified by aEdavit and delivered to an agent of the carrier within ten days from the time the stock was removed from the car. Eli Lillienstein testified that he had been engaged in the business thirty-five years and there is no pretense or claim on the part of appellee that the contract was not knowingly and understandingly entered into by its agent.

Appellant urges that appellee is barred from a recovery by reason of its failure to comply with the provisions of the contract concerning notice, and that the evidence fails to show that the horse had been injured when it was removed from the car. The evidence shows that the horse was in good condition when the shipment left Springfield. There is no evidence that the horse was injured either before it was removed from the car or while it was being removed from the car at East St. Louis. The evidence shows that some time after the horses had been unloaded, and while they were in Harrington’s yard, the horse involved in this suit was found to have his hock cut.

There is no proof in the bill of exceptions that appellant ever served the notice required by the shipping contract or that the appellant in any way waived the provision of the contract concerning, notice of claim.

Appellant contends that a limitation within which suit must be brought or claim filed is valid if reasonable and that a five-day limitation for filing a claim is reasonable, and failure to file claim within the time limit and terms of a live stock shipping contract is fatal to a recovery, and cites as authority for such propositions: Baxter v. Louisville N. A. & C. Ry. Co., 165 Ill. 78; Black v. Wabash, St. L. & P. Ry. Co., 111 Ill. 351; Missouri K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 671; Mays v. Wells Fargo & Co., 199 Ill. App. 443; Sweetser v. Chicago & A. R. Co., 196 Ill. App. 623; Baltimore & O. S. W. R. Co. v. Ross, 105 Ill. App. 54. _

_ Appellee concedes the validity of the uniform shipping contract introduced in evidence by it but insists that it was waived. There is no evidence in the bill of exceptions that tend to show any waiver.

The judgment must be reversed with a finding of facts that the evidence does not show the horse was injured while in the possession of the defendant, and also that no notice was filed within ten days as required by the shipping contract.

Reversed with finding of facts.


text:
    Childers & Lillienstein, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, $ 804

      —What evidence not considered. Evidence not preserved in the bill of exceptions may not be considered by the Appellate Court.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with a finding of fact.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Action by Childers & Lillienstein, a corporation, plaintiff, against the Illinois Central Railroad Company, defendant, to recover for the loss of a mule which was sick when it arrived at the destination and died three days later. From a judgment for plaintiff for $120, defendant appeals.
    This is one of a series of cases arising out of the same accident as in No. 6,646, ante, p. 535.
    Graham & Graham, for appellant; John G. Drennan, of counsel.
    Smith & Friedmeyer, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Childers & Lillienstein, Appellant, v. Illinois Central Railroad Company, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and ebbob, § 1241

      —when instructions may not Be complained of. A party may not complain of instructions announcing the same propositions that were requested and given at its instance.
    Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Action by Childers & Lillienstein, a corporation, plaintiff, against the Illinois Central Railroad Company, defendant, to recover damages for injury to a mare shipped over defendant’s railroad. From a judgment for defendant, plaintiff appeals.
    This is one of a series of cases arising out of the same accident as in No. 6,646, ante, p. 535.
    Smith & Friedmeyer, for appellant.
    Graham & Graham, for appellee; John G. Drennan, of counsel.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


author: Mb. Presiding Justice Thompson

text:
    Childers & Lillienstein, Appellant, v. Illinois Central Railroad Company, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Action by Childers & Lillienstein, a corporation, plaintiff, against the Illinois Central Railroad Com-, pany, defendant, to recover damages for injury to a mare in course of shipment over defendant’s railroad. From a judgment for defendant, plaintiff appeals.
    This case is governed by the decisions in cases Nos. 6,646, 6,660, ante, pp. 535, 539.
    Smith & Friedmeyer, for appellant.
    Graham & Graham, for appellee; John G. Drennan, of counsel.
   Mb. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Lola Hester, Defendant in Error, v. Fred Hester, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Equity, § 547

      —how evidence preserved. A decree in chancery granting affirmative relief must be supported by evidence preserved by a certificate of evidence or by a finding of facts in the decree itself.
    2. Divorce, § 77*—when findings are insufficient to support decree on ground of cruelty. A general finding in a decree for divorce that the defendant is guilty of extreme and repeated cruelty, as alleged in the bill of complaint, and that the allegations of complainant’s bill are true, is insufficient as a finding of facts to sustain the decree.
    Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Bill by Lola Hester, complainant, against Fred Hester, defendant, for a divorce on the ground of extreme and repeated cruelty. From a decree granting a divorce and directing the payment of $100 alimony in quarterly instalments and awarding the custody of the child to complainant, defendant brings error.
    Ralph B. Holmes, for plaintiff in error.
    Crayton & Boyle, for defendant in error.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Tillman Phillips, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Criminal law, § 220

      —when witnesses whose names are not indorsed on back of indictment may be examined. It is within the discretion of the trial court in a criminal case to permit witnesses whose names are not indorsed on the back of the indictment to be examined on behalf of the People.
    2. Intoxicating liquors, § 151*—when evidence is sufficient to sustain conviction for making sale in anti-saloon territory. In a criminal prosecution for selling liquor in anti-saloon territory, evidence of the issuance of an internal revenue special tax stamp to defendant and another as retail liquor dealers at a certain location and of sales of liquor on the premises to different persons at different times, held sufficient to sustain a judgment of conviction.

      Error to the Circuit Court of Champaign county; the Hon. Frank-lot H. Boggs, Judge, presiding. Heard in this court' at the April term, 1917.
    Affirmed.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Tillman Phillips, defendant, for selling intoxicating liquor in anti-saloon territory. From a judgment sentencing defendant to fifteen days’ imprisonment in jail on each count, etc., and to pay a fine of $50 on each count, defendant brings error.
    C. M. Mathews, for plaintiff in error; W. G. Spurgin, of counsel.
    Louis A. Busch and Harold D. Roth, for defendant in error.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

3. Criminal law, § 460*—when necessary to incorporate all instructions in abstract. The instructions given in a criminal case are considered as a series, are not tlie instructions of the'parties and should all appear in the abstract where a particular instruction is complained of.

4. Intoxicating liquors, § 158*—when instruction is not misleading. An instruction in a criminal prosecution for the sale of liquor in anti-saloon territory is not erroneous and misleading because not telling the jury that they may find the defendant guilty on one count and not on all counts, where the jury are fully instructed on the subject in other instructions.

5. Intoxicating liquors, § 158*-—when instruction is not erroneous as singling out testimony. An instruction in a criminal prosecution for the sale of intoxicating liquor in anti-saloon territory that* prima facie evidence is sufficient to establish a fact unless that evidence is rebutted, is not erroneous on the ground that when taken with another instruction in the language of the statute that the issuance of an internal revenue special tax stamp by the United States in anti-saloon territory shall he prima facie evidence of the sale of intoxicating liquor by such person receiving the stamp at the place where it is posted; it singles out testimony as defined.


text:
    The People of the State of Illinois ex rel. Truman Mitts, Plaintiff in Error, v. John Ham and Charity Ham, Defendants in Error.
    1. Marriage, § 7

      —when voidable. Unless expressly made so by statute, a marriage, one or both of the parties to which are under the age of consent, is not void but is voidable at the option of the party under disability. ° ,
    2. Marriage, § 29*—what is necessary to render void a marriage where party under age of consent. A judicial decree is required to void a marriage entered into by parties, one of whom is under the age of consent.
    3. Marriage, § 8*—when statute as to requirements construed as merely directory. Unless a statute expressly declares a marriage contracted without the necessary consent of the parents, or other requirements, to be a nullity, such statute will be construed to be directory only in this respect, so that the marriage will be held valid although disobedience of the statute may entail penalties on the licensing or officiating authorities.
    4. Marriage, § 8*—when without consent of parents of girl is not void. Inasmuch as neither the statutes of Illinois' nor Missouri declare that marriage under a certain age without the parents’ consent are void, a marriage between a girl fifteen years of age and a man forty-three years of age, both of whom are residents of the State, in the State of Missouri without the consent of the parents of the girl, is not void, but is voidable only by some direct proceeding by the wife herself.
    5. Parent and child, § 56

      —when emancipation is effected. The marriage of an infant effects an emancipation of the minor from the custody of the parents.
    Error to the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded with directions.
    Opinion filed July 14, 1917.
    Robert H. Patton and William J. Shaw, for plaintiff in error.
    Barber & Barber, for defendants in error.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a writ of error to review an order of the Circuit Court of Sangamon county, dismissing a petition for a writ of habeas corpus filed by Truman Mitts, the relator, to secure the release from restraint of Ethel Ham, a daughter of the defendants in error, claiming her as his wife.

The undisputed facts as averred in the petition and answer, and admitted by stipulation are: On April 6, 1916, the relator, a widower forty-three years of age with children of his own, having seduced the defendants’ daughter, Ethel Ham, who was attending the public school with relator’s children, and who was then but fifteen years and eight months of age, persuaded her to accompany him to St. Louis, Missouri, where a marriage license was procured and a marriage ceremony had between them. No affidavit as to the age of persons applying for a marriage license is required in Missouri. After the marriage ceremony, they at once returned to Sangamon county, Illinois, where all the parties reside, and the relator took her to his home and lived with her until a warrant was issued charging him with abduction and rape, when she was taken back to her parents, who restrain and prevent her from returning to the relator and living with him as his wife. Relator was afterwards bound over on a preliminary hearing and indicted for abduction and now awaits trial. On October 12, 1916, she gave birth to a fully developed child which died in childbirth. The petition for habeas corpus was filed on-November 20, 1916, and the order dismissing same entered December 19, 1916.

The contention of plaintiff in error is that the .marriage in Missouri was a valid marriage, while the defendants in error insist that the alleged marriag’e is one which would have been void if the ceremony had been performed in Illinois, and hence is made void by the Uniform Marriage Evasion Act in force ip this State July 1, 1915. Sections 19 and 20 of this Act [Hurd’s St. 1916, ch. 89, Cal. Ill. St. Supp. 1916, ¶¶ 7363(1), 7363(2)] are:

19. “That if any.person residing and intending to continue to reside in this State and who is disabled or prohibited from contracting marriage under the laws of this State shall go into another State or country and there contract a marriage prohibited and declared void by the laws of this State, such marriage shall be null and void for all purposes in this State with the same effect as though such prohibited marriage had been entered into in this State.”
20. “No marriage shall be contracted in this State by a party residing and intending to continue to reside in another State or jurisdiction, if such marriage would be void if contracted in such other State or jurisdiction, and every marriage, celebrated in this State in violation of this provision shall be null and void.”

The relator introduced in evidence the statutes of the State of Missouri concerning marriage and also a certified copy of the marriage proceedings, including the license, the certificate of the marriage issued by the justice of the peace and a certificate of the officials of the State of Missouri showing the official character of the justice of the peace.

Section 8279 of the Statutes of Missouri declares marriage is a civil contract to which the consent of the parties capable of contracting is essential.

Section 8280 declares that marriages between certain relatives, between white persons and negroes and between white persons and mongolians are “prohibited and declared absolutely void.”

Section 8281 provides that marriages, where either of the parties has a former wife or husband living, “shall be void” unless the former marriage shall have been dissolved.

If there is any other provision of the Missouri statutes declaring any other marriage null and void it was not introduced in evidence by either party and has not been brought to the attention of the court.

Section 8282 authorizes marriages to be solemnized by a justice of the peace, and certain other parties.

Section 8283 requires a license to be obtained previous to any marriage.

Section 8284 requires the recorder of the several counties “when applied to by any person legally entitled to a marriage license” to issue the same.

Section 8289 provides that no recorder shall issue a license authorizing the marriage of any male under twenty-one years of age or any female under eighteen, except with the consent of his or her father or mother or guardian, which consent shall be in writing, and the recorder shall state whether the parties, or either or both, are of age, or whether either or both are minors, and if a minor the name of the father, mother or guardian consenting.

Section 8290 provides a penalty for any recorder issuing a license contrary to the statute, and for any person solemnizing a marriage before the parties have obtained a license as required, and also makes such officials liable to a civil action.

The plaintiff in error offered in evidence a certified copy of a marriage license, No. 201967 issued by the recorder of St. Louis, authorizing a marriage to be celebrated between Truman Mitts of Cantrall, Illinois, who is over twenty-one years of age and Miss Ethel Ham of Cantrall, Illinois, who is over eighteen years of age, dated April 6, 1916, with a certificate attached by a justice of the peace of the City of St. Louis, that he had on April 6, 1916, married said parties, with a certificate of the recording of the license and certificate of marriage on April 20, 1916.

The sole question involved is the validity of the alleged marriage of the relator and Ethel Ham, who was then under sixteen years of age; although the license and certificate of marriage state she was over eighteen years of age and no consent had been given by any person authorized to give one.

. Section 1 of chapter 89 of the Statute of Illinois (J. & A. 7345) declares marriages between certain relatives to be incestuous and void. Section 4 of the same chapter (J. & A. 7,348) declares “that all marriages comm only known as ‘Common Law Marriages’ hereafter entered into shall be and the same are hereby declared null and void,” and section la of chapter 40 (Divorce Act, J. & A. 4216) declares that in every case in which a divorce has been granted for any of the causes contained in section* 1 of said act, neither party shall marry again within one year from the time the decree was granted, and every person marrying contrary to the provisions of'this act shall be punished by imprisonment in the penitentiary and said marriage shall be held absolutely void. The only other marriages declared void by the statute of Illinois are those declared void by the “Uniform Marriage Evasion Act,” that is, marriages contracted by parties residing or intending to reside in this State who are disabled or prohibited from contracting marriage in this State and go into another State or country and there contract a marriage prohibited and declared void by the-laws of this State, in which case such marriage shall be null and void for all purposes in this State the same as though it had been entered into in this State.

The only marriages declared void by the statutes of Missouri are marriages between relatives, marriages between white persons with negroes or mongolians, and marriages where either party has a former husband or wife living and the former marriage has not been dissolved. .

Neither the statutes of Illinois nor the statutes of Missouri declare that the marriage of an adult with a minor or of two minors shall be void. The státutes of Illinois declare that a female person of the age of eighteen years and upwards may contract a legal marriage, and a female person of sixteen years and upwards may contract a legal marriage, if the parent or guardian gives consent to such marriage, and the person giving consent is required to appear before the county clerk and make an affidavit concerning the date, place of birth and residence of the minor, as a prerequisite to-the issuing of a license, and any person making a false affidavit to induce a county clerk to issue a license permitting persons to be married, who are legally incapable or who have not the right to be joined in marriage, shall be punished by a fine or imprisonment or both. (

The statutes of Missouri provide that a license to authorize the marriage of a female under eighteen shall not be issued without the consent in writing of a parent or guardian duly attested, and any person solemnizing a marriage, where a license has not been obtained as provided by the act, and any recorder issuing a license contrary to the provisions of the statute, shall be deemed guilty of a misdemeanor and also subject to a civil action.

The only difference between the'statutes of Illinois and Missouri, so far as the marriage of a female minor is concerned, is that in Illinois parents are not authorized to consent to the marriage of females under the age of sixteen years, and in Illinois the parties authorized to consent are required to make an affidavit as to the age of the minor, while Missouri only requires an attested signature.

“At common law the marriage of an infant over seven years of age and under fourteen was merely voidable and subject to disaffirmance or ratification. If a boy within those ages were married he might, when he came to the age of consent, declare, the marriage void without any divorce, but if at the age of consent the parties agreed to continue together as husband and wife, it was not necessary to be married again.” (Sokel v. People, 212 Ill. 244.) The age of consent at common law in the case of males was the age of four-ten and of females the age of twelve. (26 Cyc. 842.) Unless expressly made so by statute, a marriage, one or both the parties to which are under the age of consent, is not void but is voidable at the option of the party under disability (26 Cyc. 842), and a judicial decree is required to void it. State ex rel. Scott v. Lowell, 78 Minn. 166.

■In Illinois, “the general rule is that unless the statute' expressly declares a marriage contracted without the necessary consent of the parents, or other requirements of the statute, to be a nullity, such statutes will be construed to be directory, only, in this respect, so that the marriage will be held valid although disobedience of the statute may entail penalties on the licensing or officiating authorities.” Reifschneider v. Reifschneider, 241 Ill. 92; Campbell v. Beck, 50 Ill. 171; Olsen v. People, 219 Ill. 40, and 26 Cyc. 835.

Neither the statutes of Illinois nor Missouri declare that marriages under a certain age without the parents’ consent are void. The provisions fixing the age of consent, requiring the consent of the parents and imposing penalties on the clerk for issuing a license and on officers for celebrating a marriage in violation of the provisions of the statute, are only directory and not prohibitive. Reifschneider v. Reifschneider, supra; State v. Bittick, 103 Mo. 183; Bishop on Marriage & Divorce, secs. 423-449 and 551-556. The marriage of the relator and Ethel Ham must be held to be a valid marriage until declared void by some direct proceeding.

The marriage of an infant effects an emancipation of the minor from the custody of the parent. 22 Cyc. 517; Commonwealth v. Graham, 157 Mass. 73; Stale ex rel. Scott v. Lowell, 78 Minn. 166; Bishop on Marriage & Divorce, sec. 275. The marriage of Ethel Ham "freed her from the control of her parents. It is admitted by the parties to this suit that she desires to turn to her husband. We are constrained to hold that the court erred in dismissing the petition. The judgment is reversed and the cause remanded with directions to the trial court to enter an order granting the prayer of the petition.

Reversed and remanded with directions.


text:
    John R. Abbott, Appellant, v. John T. Inghram, Edward W. Peters, County Treasurer, and Will J. Smith, County Clerk of Adams County, Appellees.
    1. Equity, § 97

      —who are necessary parties. All persons who have any legal or equitable interest in the subject-matter and result of a suit should be made parties.
    2. Counties, § 89*—when county-is necessary party. In a suit against the board of supervisors, clerk and treasurer of a county to restrain the payment of county funds on order of the board to a special county attorney, whose services are contracted for by the hoard of supervisors, the county is a necessary party.
    Appeal from the Circuit Court of Adams county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed July 14, 1917.
    Roy D. Johnson, for appellant.
    Leroy Adair, S. A. Hubbard and C. H. Wood, for appellees.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

On October 11, 1916, John B. Abbott, of Adams county, on behalf of himself, as a taxpayer in Adams county, and all other taxpayers who desire to join with him, filed a bill in chancery alleging that the Board of Supervisors of the County of Adams, at its anrtrml meeting on September 12, 1916, through its finance committee, entered into a written agreement with John T. Inghram, an attorney at law of the City of Quincy, by which it employed John T. Inghram as a county attorney for the year ending September 1,1917, at a compensation of $1,200 per annum, and $300 to apply on the services of a stenographer in such employment, said sums payable in quarterly instalments. The contract recites that Inghram is retained as special attorney and counsel for the county of Adams to attend to all legal matters concerning the county, to prosecute all litigation instituted by said county and defend said county in all suits now pending or which may be instituted against it, and to represent the county in all suits it may be necessary to prosecute or defend to enforce the collection of taxes, and to render to the county board, its several committees and the county officers, such legal advice in and about the business of the county as may be requisite, and to perform all duties pointed out in a certain rule of the county board. The rule referred to requires the county attorney to advise all county officers and the supervisors concerning their official duties, to prepare or approve before execution all contracts entered into by the county, to attend to all litigation the county may be interested in, to see that the necessary proceedings are taken to prevent the county giving aid to paupers who have relatives able to support them and to attend to State inheritance tax matters and the collection of county revenue, etc.

The bill further alleges that Inghram was not the State’s Attorney of Adams county and that Fred Gr. Wolf is the State’s Attorney and said State’s Attorney has never failed to efficiently perform any duty required of him under the law; that it is the duty of the acting State’s Attorney of the county of Adams to render all the services mentioned in said agreement and that the board of supervisors is not authorized to create and maintain the pretended office of county attorney or to levy or collect any tax to pay a salary to such county attorney or to retain legal counsel in the manner set forth.

It is further alleged that the board of supervisors at its September meeting appropriated and recommended a tax levy to defray the expenses of said county, and among the sums so appropriated is $1,500 to be used in paying the salary and expenses of said county attorney, as set forth in said agreement, and charges that said appropriation is unlawful ana void.

The bill further alleges that Will J. Smith is county clerk and Edward W. Peters is the county treasurer of the county of Adams and that the board of supervisors states that it will order county warrants to be issued by the county clerk directing the county treasurer to pay Inghram the pretended salary under said pretended contract unless restrained by injunction. The bill prays for an injunction restraining the Board of Supervisors of the County of Adams and its members from maintaining the pretended office of county attorney and the members of the county board from ordering the payment of said $1,500, or any part thereof, to Inghram, and Will J. Smith, county clerk, from issuing any order for, and Edward W.. Peters, county treasurer, from paying any part of, said $1,500 from the county funds, and Inghram from collecting any part of said sum from the county treasurer. The board of supervisors and its individual members in their own names, Will J. Smith, county clerk, Edward W. Peters, county treasurer, and John T. Inghram are made parties defendant to the original bill, and process is prayed for against all the defendants.

There was a special and limited appearance for the board of supervisors by Fred Gr. Wolf, the State’s Attorney of the county of Adams, attacking the jurisdiction of the court on the ground that there was not proper service of summons and a motion that the return be quashed. Thereupon the complainant dismissed the bill as to the board of supervisors and the bill was amended accordingly, leaving Smith, the county clerk, Peters, the county treasurer, and Inghram the only defendants.

The defendants demurred both generally and specially to the bill as amended.

The special grounds .of demurrer are that the bill shows that the county of Adams is a party to the contract, the performance of which is sought to be enjoined,- and is a necessary defendant, and that the proper method of questioning the existence of an officer is by quo warranto. The court sustained the demurrer and complainant, standing by his bill, it was dismissed for want of equity. The complainant appeals.

The contract, the carrying out of which is sought-to be énjoined, purports to be executed by “The county of Adams,” by its finance committee, and John T. Inghram. The county of Adams was not made a party defendant to the bill. By statute the corporate name of a county is “The county of........,” and by that name it may sue and be sued. Statute, eh. 34, sec. 22 (J. & A. ¶ 2766). Section 23 (J. & A. ¶ 2767 provides: “The powers of the county, as a body corporate or politic, shall be exercised by a county board, to wit: In counties under township organization (except the county of Cook), by the board of supervisors.” The county'is interested in knowing whether .the county board may make a contract of the. nature of the one in controversy. If a contract that had been executed by two parties may be declared void and its performance enjoined on the application of a third party,, without both the parties to the contract having an opportunity to be represented, contracts would be mere scraps of paper. It is a well-established rule in equity that all parties who have any legal or equitable interest in the subject-matter and result of a suit must be made parties. No citation of authority is necessary on this question. Appellant argues that because, the State of Illinois was not made a party defendant in Fergus v. Russel, 270 Ill. 304, that the decision in that case is authority for its position that the county of Adams is not a necessary party. Counsel have overlooked the proposition of the State Constitution which provides that the State of Illinois shall never be made a party defendant in any court of law or equity, hence that case has no bearing on the question of necessary parties in this suit.

In a suit to enjoin the payment of county funds upon the order of the county board, the county is a necessary party. Bradley v. Gilbert, 155 Ill. 154. The county board directs the issuance of county warrants under which the funds of the county are disbursed and its debts paid. Tffi clerk issues the orders after he has Leen instructed lo do so and the treasurer pays the orders. It is very necessary, to avoid, conflict among the county officials, that the county and the officials that issue and pay the orders should be -made parties defendant that they may be heard in support and defense of their legal rights. The parties who made the contract are the ones most deeply interested. The county not being a party and the appellant standing by his bill, the court could not do otherwise than dismiss it. The decree is affirmed.

Affirmed.'


text:
    Della Robinson, Guardian, Plaintiff in Error, v. W. D. Smith et al., Defendants in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    Guardian and ward, § 80

      —when guardian not liable for compound Interest. A bill by the guardian of a minor child against its father, the former guardian, for an accounting, alleging that if the interest on the fund had been collected annually from the borrower and reloaned, instead of being allowed to accumulate, a sum amounting to about fifteen per cent, of that claimed by the former guardian to be due would have been realized, is properly dismissed as without equity where the father, as guardian, paid all the expenses of the estate and of his child from his own funds, which payments amount to very much more than he is sought to be charged with, although he was a poor man, and made no claim for guardian’s compensation.

      Error to the Circuit Court of Coles county; the Hon, John H. Marshall, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Bill in equity by Della Robinson, guardian of Gather Smith, complainant, against W. D. Smith, her former guardian, his surety, Frank L. Osborne, and F. J..Trimble, heir of a deceased" surety, defendants, for an accounting, claiming that, if interest had been collected annually by the guardian and reloaned, the ward would, from the compound interest, have had $180 more at the time the guardian was discharged. From a decree dismissing the bill for want of equity, complainant brings error.
    Albert C. and Ben F. Anderson, for plaintiff in error.
    Charles C. Lee and John T. Kincaid, for defendants in error.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.