text:
    Town of Geneva v. S. J. Peterson and Christina Peterson.

      Municipal Corporations — Street Improvement — Injury to Private Property — Measure of Damages — Special Benefits — Instructions—-When (Great Accuracy is Required.

    1. In an action against a municipal corporation for damages alleged to have resulted from a street improvement to private property, the jury should take into consideration the special benefits to the plaintiffs, distinguished from the benefits to the public in general.
    2. Where the testimony is conflicting, the instructions should be accurate and clear. It is not sufficient that a necessary qualification of an instruction given may be found in the instructions given for the opposite party.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kane County; the Hon. Charles Kellum, Judge, presiding.
    Mr. Charles Wheaton, for appellant.
    The only question in this class of cases upon the measure of damages is: Is the property in fact depreciated in value by the grading? The question to be determined is: What would the property have sold for unaffected by the grading, and what would it sell for as affected by it; would it sell for less? Page v. C., M. & St. P. R. R. Co., 70 Ill. 324; Eberhart v. C., M. & St. P. R. R. Co., 70 Ill. 347; J. & N. W. R. R. Co. v. Walsh, 106 Ill. 253; C. & E. R. R. Co. v. Jacobs, 110 Ill. 414.
    Any benefits conferred, as Avell as injury inflicted, should" be considered in estimating the damages. City of Elgin v. Eaton, 83 Ill. 535; C., M. & St. P. R. R. Co. v. Hall, 90 Ill. 42; Shawneetown v. Mason, 82 Ill. 337; C. & P. R. R. Co. v. Francis, 70 Ill. 238. The jury in such case should always take into consideration the special benefits in contradistinction to the benefits upon the public in general.

      The plaintiffs’ instructions must stand by themselves, and if they, or any one of a series of them, are erroneous, then for such error a judgment will be reversed. In a case where the evidence is conflicting, the fact that the law is accurately stated on one side will not obviate errors in instructions given on the other side. I. C. R. R. Co. v. Mafflt, 67 Ill. 431; Village of Warren v. Wright, 3 Ill. App. 602.
    An instruction which ignores a principle involved in the case is erroneous. C. & N. W. R. R. Co. v. Clark, 70 Ill. 276; Thorne v. McVeagh, 75 Ill. 81; C., B. & Q. R. R. Co. v. Griffin, 68 Ill. 499 ; Am. Ins. Co. v. Crawford, 89 Ill. 62; Cushman v. Cogswell, 86 Ill. 62 ; Wabash Ry. Co. v. Henks, 91 Ill. 406; Mendota v. Fay, 1 Ill. App. 418.
    Where a verdict is against the weight of evidence, or is too large, or the evidence is conflicting, and the instructions for plaintiffs had a tendency to mislead the jury, the judgment will be reversed. Adams v. Smith, 58 Ill. 417; Carter v. Carter 62 Ill. 439; Herrick v. Gary, 65 Ill. 101; Frautz v. Rose, 89 Ill. 590; Cushman v. Cogswell, 86 Ill. 62.
    Messrs. R. N. Botsford and Hopkins, Aldrich & Thatcher, for appellees.
    The instructions as a whole, fairly and correctly stated the law of the case. At least the defendant has no ground of. complaint on that score.
    Complaint is made that the second instruction given for the plaintiffs is not the law. Standing alone, the criticism of counsel for the defendant upon it may be just; but the court should bear in mind that all through the trial, witnesses, both on the direct and cross-examinations, with one or two exceptions, were closely directed to the damages as affecting the market value of the property by the improvement. All the other instructions given on both sides kept this fact prominently in view.
    If all the instructions are considered, it will be found that the prominent, positive and controlling idea all through them is to direct the jury with unerring certainty to the proper measure of damages.
    In criminal cases the Supreme Court holds that “it is sufficient when the instructions, considered as a whole, substantially present the law of the case fairly to the jury.” Ritzman v. People, 110 Ill. 362; and this has been the rule incivil cases, Gilchrist v. Gilchrist, 76 Ill. 281; Lovenguth v. City of Bloomington, 71 Ill. 238.
    There was no pretense on the trial, nor does the record show that any special benefit to the public generally or other property owners on this street, was sworn to by any witness who testified in the case.
    On the other hand it is claimed, and the proof is, that plaintiffs’ property was specially damaged and depreciated in its market value by the grading, and these were the only damages claimed on the trial or sought to be recovered for.
   Welch, J.

This was a suit brought by the appellees, as owners of a lot on State Street, in the Town of Geneva, to recover damages claimed to have been caused to the premises by the grading of State Street and lowering the sidewalk in front of the premises. A verdict for the sum of §725 for appellees was rendered by the jury. A remittitur of §325 was entered by the appellees, and judgment entered for the sum of §400 and costs, from which this appeal is taken. Various errors are assigned. Art. 2, Sec. 13, of our present Constitution, declares that private property shall not be taken or damaged for public use without just compensation. The property in this case was private and the improvement being made was for public use, and if the appellees’ property was damaged thereby, they are entitled to just compensation for such damages. The question then presents itself, what was the measure of damages? In the case of Shawneetown v. Mason, 82 Ill. 337, it was said: “ The true question is, whether the property was injured by the improvement; if not, then there is no damage^ and can be no recovery. If there is, then the recovery must be measured by the extent of the loss. If the property is worth as much after the improvement as before, then there is no damage done the property. If the benefits received from making the improvement are equal to or greater than the loss, then the property is not damaged for public use. We apprehend that there can be no damage to property without a pecuniary loss. City of Elgin v. Eaton, 83 Ill. 535. “ The jury should always in such cases take into consideration the special benefits, in contradistinction to the benefits to the public in general.” There was in this case a sharp conflict in the evidence on the question as to the amount of damages, if any, sustained by the appellees. In such a case the law should be accurately stated in the instructions. It is insisted by counsel for appellant that the second instruction given for appellees ignored the idea of any special benefits to appellees being considered by the jury. And the jury was told by that instruction that the appellees were entitled to recover for all damages sustained, if any, over and above the benefits to the public generally. The instruction is as follows:

2d. . The court further instructs the jury that under the law of this State as it was at the time said grading was done on State Street, private property could not be taken or damaged for the benefit of the public, without making compensation therefor to the owner of such property. Hence, in this case, if the jury believe from the evidence that in consequence of the grading of the street the plaintiffs were damaged over and above any benefits shared by them with the public generally, then they are entitled to recover in this action for such damages, and the jury should so find and fix the amount by their verdict at such sum as the proof shows, if any, they are entitled to receive.

It is conceded by counsel for appellees that that instruction standing alone, the criticism of counsel for appellant upon it may be just. It is insisted that the eighth instruction given for appellees cured the error in the second. The eighth instruction is as follows : Eighth. The question for the jury in this case is, were the premises of the plaintiffs damaged by the grading of State Street? and if the jury believe from the evidence that said premises by reason of such grading were damaged over and above any benefits received by such grading, and that such damages are permanent and substantial damages to said premises, then the jury should find for the plaintiffs such a sum as the proofs show they have sustained, not exceeding the amount claimed in the declaration.

What benefits are referred to in this instruction is not stated. The jliry would naturally infer that the benefits referred to meant the same as stated in the second instruction, supra, to wit: “Benefits to the public generally.” The right of the jury to regard special benefits to the property as against any claim for damages, is not distinctly stated in any of the instructions given for appellees. It is, however, insisted by counsel for appellees that it is sufficient when the instructions, taken as a whole, substantially present the law of the case to the jury, and we are referred to the following authorities: Lovenguth v. City of Bloomington, 71 Ill. 238; Gilchrist v. Gilchrist, 76 Ill. 281; Ritzman v. People, 110 Ill. 362. The rule announced in 71 Ill. 238, was: “ A judgment will not be reversed on account of an instruction given which is not applicable to the case, when it appears it could do no " harm, and the party objecting to it has not been prejudiced by it.”. The rule announced in 76 Ill. 281, was: “Although there may be objections to part of the instructions given when criticised, yet if taking them together as a whole the law of the case is fairly presented and justice is done by the verdict, the judgment will not be reversed.”

The same rule as in 76 Ill. 281, is announced in Ritzman v. People, 110 Ill. 362. We do not understand the authorities above to conflict with the rule announced by the Appellate and Supreme Court of the State.

Where the testimony in a case is conflicting, the instructions should be accurate, clear and perspicuous. It is not sufficient that the necessary qualifications of them may be found in the instructions given for the opposite party. Village of Warren v. Wright, 3 Ill App. 602 ; Harvey, Wolfe & Co. v. Miles, 16 Ill. App. 533 ; Peoria & Pekin Union Ry. Co. v. O’Brien, 18 Ill. App. 28; Denman v. Bloomer, 11 Ill. 177; Keokuk Packet Co. v. Henry, 50 Ill. 264; I. C. R. R. Co. v. Maffit, 67 Ill. 431; Cushman v. Cogswell, 86 Ill. 62; Wabash Ry. Co. v. Henks, 91 Ill. 406. Under the rule as announced in the authorities, supra, this judgment must be reversed for the error • of the Circuit Court in giving second instruction for appellees.

We do not deem it proper to comment upon the evidence further than to say it was highly conflicting. We do not consider the objections to the admission of evidence well taken. For the errors herein iudieated this judgment is reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Welch, J.

license: Public Domain

text:
    City of Aurora v. Benjamin F. Parks.

      Municipal Corporations — Sidewalks—Personal Injuries Caused by Slipping on Snow and Ice — Liability—Instructions—Where Great Accuracy is Required.

    1. To render a municipal corporation liable for personal injuries caused by slipping on snow and ice on its sidewalk, the ice and snow must have accumulated to such an extent as to cause an obstruction. Mere slipperiness and unevenness, caused by tramping, thawing and freezing, where the ice and snow has not accumulated to suchjan extent as to make it an obstruction, does not create a liability..
    2. Where the testimony is conflicting, the instructions should be accurate and clear.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kane County; the Hon. Charles Kellum, Judge, presiding.
    Messrs. Charles Wheaton and C. L. Allen, for appellant.
    A city is not required to have its sidewalks so constructed or kept in such condition as to secure immunity from injury in using them, nor is it bound to employ the utmost care and exertion to that end. It is only required to see that its sidewalks are reasonably safe for persons exercising ordinary care and caution in using them. City of Chicago v. McGiven, 73 Ill. 347; Chicago v. Bixby, 84 Ill. 82; City of Macomb v. Smithers, 6 Ill. App. 470.

      A city is not an insurer against accidents. City of Chicago v. Bixby, 84 Ill. 82; Gibson v. Johnson, 4 Ill. App. 288 ; City of Macomb v. Smithers, 6 Ill. App. 470.
    Obstructions or defects in the streets or sidewalks of a town or city, to make the corporation liable for injury occasioned thereby, must be of such a nature that they are in themselves dangerous and can not be readily detected, or such that a person exercising ordinary prudence can not avoid danger or injury in passing over them. City of Quincy v. Barker, 81 Ill. 300.
    The mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not such a defect as will make the city liable for damages occasioned thereby. City of Chicago v. McGiven, 78 Ill. 347; Village of Gibson v. Johnson, 4 Ill. App. 288; City of Macomb v. Smithers, 6 Ill. App. 370.
    A corporation is not liable for injuries occasioned by slipping on ice or snow on sidewalks, unless the walks have become notoriously dangerous thereby. Stanton v. Springfield, 12 Allen, 566; Nason v. Boston, 14 Allen, 501; Stone v. Hubbardstown, 100 Mass. 50; Smyth v. Bangor, 72 Me. 249 ; Landolt v. Norwich, 37 Conn. 615; Borough of Mauch Chunk v. Kline, 100 Pa. St. 119; .Cook v. Milwaukee, 24 Wis. 270; Ward v. Jefferson,. 24 Wis. 342.
    A small ridge of snow and ice of inconsiderable size is not an obstruction, within the meaning of the law. Street v. Holyoke, 105 Mass. 32; Mauch Chunk v. Kline, 100 Pa. St. 119.
    In a case where the evidence is conflicting the fact that the law is accurately stated on one side will not obviate errors in instructions given on the other side. I. C. R. R. Co. v. Maffit, 67 Ill. 431; Village of Warren v. Wright, 3 Ill. App. 602.
    Each instruction must be in itself correct in this class of cases. Village of Warren v. Wright, 3 Ill. App. 602; C. & A. R. R. Co. v. Murray, 62 Ill. 326 ; Baldwin v. Killian, 63 Ill. 550 ; C., B. & Q. R. R. Co. v. Payne, 49 Ill. 449 ; Quinn v. Donovan, 85 Ill. 194; Ill. Linen Co. v. Hough, 91 Ill. 63; Joliet v. Walker, 7 Ill. App. 267.

      Messrs. R. N. Botsford, T. C. Moore and N. J. Aldrich, for appellee.
    The burden was upon the City of Aurora to maintain sidewalks and keep them from being obstructed, and in such a condition that a person using ordinary care and prudence could pass over them in safety. The Supreme Court of this State has in a number of cases held that such was the rule of law; and also, that if the sidewalk was dangerous and appellee was using ordinary care in passing over it, -and was injured while so doing, the appellant is liable to the full extent of such injury. And the law is so well settled that it hardly seems necessary to quote any cases, but we will suggest the following: Centralia v. Scott, 59 Ill. 129; Sterling v. Thomas, 60 Ill. 264; Bloomington v. Bay, 42 Ill. 503; Champaign v. Patterson, 50 Ill. 61; Aurora v. Pulfer, 56 Ill. 270; Aurora v. Dale, 90 Ill. 46; Aurora v. Hillman, 90 Ill. 61.
    It is the duty of the City of Aurora to keep its sidewalks free from obstructions by snow and ice that impede travel and render them dangerous, and the occupants or owners of adjoining premises can not be compelled to keep the walks in front thereof free from snow and ice. Gridly v. Bloomington, 88 Ill. 554; City of Chicago v. O’Brien, 111 Ill. 532.
    Aside from the decisions in our own State, the following cases have determined the liability of cities to persons falling from icy sidewalks, so formed by the freezing of melted snow, making a rough and uneven surface. McSully v. Boston, 113 Mass. 503; Cook v. Milwaukee, 24 Wis. 270; Luther v. Worcester, 97 Mass. 268; Hutchins v. Boston, 97 Mass. 272; Hall v. Lowell, 10 Cush. 260; Shea v. Lowell, 10 Allen, 136; Payne v. Lowell, 10 Allen, 147; Providence v. Clapp, 17 How. 164.
    Although an instruction considered by itself is too general, yet if properly limited by others given on the other side, so that it is not probable it could have misled the jury, judgment will not be reversed on account of such instruction. Kendall v. Brown, 86 Ill. 387; Skiles v. Caruthers, 88 Ill. 458; Edwards v. Cary, 60 Mo. 572; T., W. & W. Ry. Co. v. Ingraham, 77 Ill. 309.
   Welch, J.

This was an action brought by the appellee against appellant to recover damages for an injury received by him from a fall upon one of the appellant’s sidewalks on the evening of the 6th of January, 1884. There was a verdict for the appellee for $5,000. Motion for a new trial; motion overruled and judgment, from which this appeal is taken; various errors are assigned.

The appellee in his declaration avers that the appellant, in gross violation of its duty, permitted snow and ice to accumulate on its sidewalk, near the corner of Galena and River Streets, on the west side of River Street, so as to form an obstruction and become dangerous to travel; that he, in passing over and along said sidewalk, at about 7 o’clock p. m., January 6, 1884, in the exercise of reasonable care and caution, fell, by reason of the accumulation of ice and snow thereon, and injured his left hip and the sciatic nerve thereof permanently. There is no defect in the construction of the walk claimed. The evidence shows that the walk, where the appellant fell, was much used; that the appellee had, during the month of December, and up to the time he fell, passed over that walk from four to five times daily, and on the day he fell had passed over it five times; and that during the month of December and up to the 6th of January there had been a snow fall of twenty-three and three-tenths inches. The evidence in regard to the amount of snow and ice that had accumulated on the sidewalk was conflicting. The evidence on the part of the appellant tended to show that there was not snow or ice upon the walk sufficient to cause an obstruction to travel; that there might have been an inch as stated by some, and, as stated by others, a thin coating of ice and snow was formed upon the walk of the thickness of a boot sole.” All of these witnesses had passed over this walk several times daily. Some of the evidence on the part of appellee tended to show that the snow as it fell was packed down by pedestrians until it became smooth, icy and slippery, with little knolls worn smooth, and that there was from two to three inches of snow in the center of the walk. If this was the condition of the walk there was no liability on the part of appellant. Tet, under the 4th and 5th instructions given for the appellee the jury may have believed that this was the condition of the walk, and have been justified under these instructions to find for the appellee. The instructions were as follows :

4th. “ If the jury believe from the evidence that the plaintiff was injured by reason of the defendant negligently failing to keep the sidewalk in question in a reasonably safé condition for travel over the same but allowed snow and ice to accumulate thereon, so as to make the same unsafe and dangerous to persons using ordinary care and prudence having occasion to pass over the same, and suffered the same to so remain, with notice thereof, or for such length of time as by proper care and diligence they might have known of its condition, then the city is liable in this action, and the jury should so find.”
5th. “If the jury believe from the evidence that the sidewalk in controversy, at the point where the alleged injury occurred, on the 6th day of January, A. D. 1884, the time when said injury occurred, had become dangerous from deposits of ice and snow, and the surface of said walk had become rough and uneven on account thereof, and that such had been the condition for an unreasonable ’ length of time before the alleged injury, and was so at the time of the injury, and that plaintiff, while passing over the same, and in the exercise of ordinary care and prudence, slipped and fell and injured his leg or hip, then the plaintiff is entitled to recover damages for such injury, and the jury should so find.”

They authorized the jury to find for appellee, if the sidewalk was unsafe and dangerous from ice and snow accumulated thereon, even though it had not accumulated to the extent to cause an obstruction. There may have been sufficient ice and snow on the walk to make it slippery, rough, uneven, dangerous and unsafe, and yet the appellant not be liable. To render the appellant liable, the ice and snow must have accumulated to such an extent as to cause an obstruction. Mere slipperiness and unevenness caused by the tramping, thawing and freezing, where the ice and snow has not accumulated to such an extent as to make it an obstruction, does not create a liability.

These instructions are in conflict with the rule announced by the Appellate and Supreme Courts of this State. The Village of Gibson v. Johnson, 4 Ill. App. 288; City of Macomb v. Smithers, 6 Ill. App. 47; City of Chicago v. McGiven, 78 Ill. 347; City of Quincy v. Barber, 81 Ill. 300; City of Chicago v. Bixby, 34 Ill. 82. They should not have been given.

The evidence being conflicting,- the law should have been accurately stated. Ill. Central R. R. Co. v. Maffit, 67 Ill. 431; Village of Warren v. Wright, 3 Ill. App. 602.

It is also insisted by the appellant that the damages are excessive. We do not feel called upon to examine or discuss that question, as this case will have to be re-tried. For the errors indicated, the judgment is reversed and cause remanded, and venire de novo awarded. •

Reversed, and remanded.


text:
    Lester P. Wood v. John Clark et al.

      Replevin — Sale, by Agent of Debtor in Failing Circumstances, to Sureties —Preferences—Authority of Agent — Construction of Contract — Coniingen cy —Fraud—Instructions—Practice.

    1. Fraud is not to be presumed but must be proved by facts and circumstances in tbé case. The law presumes any business transaction to be honest until the contrary is shown.
    2. It is not error to refuse an instruction though it may contain a correct proposition, when its substance is contained in another instruction, given at the instance of the same party.
    8. In an action of replevin, brought by certain creditors of the original owner of goods claimed by them as purchasers from the agent of said owner, against an officer who holds under writs of attachment sued out by other creditors of said owner, it is held: That the agent was authorized to make any disposition of the property which his principal might have made; that the principal, though in tailing circumstances, might in good faith have preferred particular creditors, and made a sale to them in consideration of claims; that he might have given preference to his sureties upon their obligations; that said sureties had the right to secure payment of their obligations in preference to other creditors; that the contract of sale made by the agent was subject only to the contingency of other creditors successfully contesting it; that the evidence does not show said transaction to have been fraudulent or entered into with the intent to hinder and delay creditors, and that there was no error in giving or refusing instructions.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of De Kalb County; the Hon. C. W. Upton, Judge, presiding;
    Statement of the case by Welch, J. Peter H. Evans, prior and up to the 29th day of January, 1885, had been engaged in the sale of agricultural implements, wagons, sewing machines, lumber, etc., at Somonauk in De Kalb County, Illinois. During the time he was thus doing business he had procured John Clark and Stephen D. Wright, two of the appellees, to sign notes for him as sureties. Clark had signed three notes, each for the sum of 8875, and interest, payable to John McNamara, Wright had signed as surety for him a note for §1,000 and interest, payable to Anthony Harmon. Evans had also become indebted to the Somonauk Bank on a note for §340 and interest. He was also at the time indebted to a number of other parties, among them the attaching creditors, The McCormick Harvesting Machine Company, J. J. Budlong & Co., Kelley, Rathbone .& Co. and C. C. Thompson & Walkup Co. On the 29th day of January, 1885, he left Somonauk, leaving his brother, John F. Evans, in full charge of his business, saying to him when he left that he w-as in a had condition financially, and that if he could not get out of it he wanted to be sure and have John Clark and Stephen D. Wright secured; that if he did not make satisfactory arrangements in Chicago he would send him authority from there to settle up his business satisfactory to his wishes. He never returned and his whereabouts is unknown. On the 31st of January he sent to his brother from Chicago a letter, inclosed in which was the following paper, which is marked “Exhibit A.”

      Somonauk, Jan. 26, 1885.

      “ This is to certify that my brother, John F. Evans, has my consent and is authorized to transact all of my business while I am away, and I shall be responsible for the same.
    (Signed) P. H. Evans.”
    On the 4th of February John Evans met with John Clark, Stephen D. Wright and Harrison Wright who represented the Somonauk Bank at the house of John Clark. The meeting was for the purpose of securing John Clark and Stephen D. Wright as the sureties on the notes of P. H. Evans, and to secure the Somonauk Bank for the note due from P. H. Evans. The amount of the notes and interest which was to be secured amounted to the sum of $4,197. The amount of the property turned over to the appellees by John F. Evans for P. H. Evans at the invoice price was $4,696.86. The sum of $500 was deducted from the invoice price, owing to the unsalable character of a large amount of the property. A bill of sale was given to the appellees for the property thus turned out, signed P. H. Evans, by John F. Evans, agent.
    The property was taken possession of by the appellees the next morning, and was in their possession when seized by the appellant under writs of attachment on the 7th day of February.
    Messrs. John L. Pratt, A. J. Hopkins, N. J. Aldrich and F. H. Thatcher, for appellant.
    Messrs. Charles Wheaton and Luther Lowell, for appellees.
   Welch, J.

This was an action of replevin, by appellees against the appellant, to recover this property. Appellant tiled several pleas : Non cejpit, non detinet, property in P. H. Evans, and justification as Sheriff under writs of attachment. Replications were filed to the pleas. Trial, verdict for the appellees and judgment on the verdict. From which judgment this appeal is taken, and various errors are assigned.

The question in controversy in this case is, as to who was entitled to tlie property. It is insisted by the counsel for the appellant that John F. Evans did not have authority to dispose of this property to the appellees in the manner that he did, and that the transaction was fraudulent, and was made to hinder and delay the creditors of P. H. Evans. There seems to have been two directions given by P. H. Evans t.o John F. Evans, one verbally, the other in writing.

John F. Evans states that at the time his brother, P. H. Evans, left him in charge of his business, he told him of notes signed by him, on three of which Jolm Clark was surety, and on one of which Stephen D. Wright was surety, and that he was in a bad condition financially, and that if he could not get out of it he wanted to be sure and have John Clark and Stephen D. Wright secured, and that he had a paper written out, which, if he did not make the arrangement in Chicago satisfactorily, he would send him the paper, so that he could have authority to settle up. his business satisfactorily. That he told him to be sure and secure these two parties, then settle with the rest of them the best he could. The written authority is that contained in exhibit “A.” We hold that under the authority given by P. H. Evans to John F. Evans, that John F. Evans had a legal right to make any disposition of the property of P. H. Evans that P. H. Evans could have made himself. He was made his general agent, and left in full possession and control of the business and property. He. had verbal directions and authority what to do in regard to the sureties of P. H. Evans and his creditors. He had also full powers conferred by the written authority contained in the exhibit “ A.” P. H. Evans had the legal right, acting in good faith, to prefer a particular creditor, and to have made a sale to a creditor who was seeking to secure his debt in good faith in preference to other creditors of his. Morris v. Tillson, 81 Ill. 607. He had the right to have given preference to a surety upon his obligation. Nicholas Welsch et al. v. Anton Werschem, 92 Ill. 115. There is no question as to the bona fide character of their claims and demands. Clark and Wright were his sureties to the extent claimed, and his indebtedness to the Somonauk Bank was of the amount claimed. The appellees had the right to be secured or paid in preference to any other of the creditors of P. H. Evans, and P. H. Evans or his agent, John F. Evans, had the right to secure or pay them in preference to any of the creditors.

Was the transaction fraudulent and done for the purpose of hindering and delaying the creditors of P. H. Evans ? We have held that the claims were Iona fide, and that the appellees had the right to be secured or paid. Was the property turned out for the real purpose of paying or securing them ? The value was fixed to each article of property turned over, at the original invoice price, and after an amount equal to that of appellees’ demands was reached it was insisted by John F. Evans that appellees should accept that amount. They refused, and Clark told him that he would be willing to give §1,000 if any one would let him out of it sooner than take any of the property. It was then agreed that they should have the property at the invoice price, to the amount of $500 more than their claims amounted to, for the reason as stated “ that a large amount of the stuff was unsalable.”

This property was received and accepted by the appellees on these terms.

“We hereby agree that if the title to the property this day sold us by P. H. Evans, per his agent, John F. Evans, shall remain in us and not be replevied or attached, or levied upon by other creditors of P. H. Evans, or said sale to us declared void by a jury or the courts, that we will as soon as all of said property shall have been sold by us, deliver to said P. H. Evans three notes, signed by John Clark as surety with said Evans, now amounting to $2,835; also, one note .signed by S. D. Wright, as surety with said Evans, now amounting to $1,007; and also one note in the Somonauk Bank, now amounting to $355, signed by P. H. Evans and John McNamara.
John Clabk,
S. D. Weight,
John Clabk, President, for Somonauk Bank.
Somonauk, III., Feb. 4, 1885.”

This differs from a technical pledge only in the fact that there was to be no redemption by the person turning out the property, and in case of the contingency mentioned in the writing not happening, the property was to be taken in full liquidation of the debt, and notes given up for which it was turned out. It provides that as soon as all the property shall have been sold the notes were to be delivered up.

It is insisted by counsel for appellant, that by the terms of this contract, if any other creditor replevied or attached the goods now in controversy, it was no sale, and the property reverted to P. H. Evans. We hold that the contract is susceptible of no'such construction; the construction to be given to the contract is, that if the appellees should not be deprived of the title to the property, but the title should remain in them, and they should have the' benefit of the property or its proceeds, then the notes were to be given up, and they were to take the property for the amount of the claims. There, was but one contingency, and that was that the property should not be taken away from them and they deprived of the benefits of it.

We are unable to perceive from the evidence in this record that this transaction was fraudulent, or entered into with the intent to hinder and delay the creditors of P. H. Evans. This was a proper question for the jury, and we concur in the conclusion reached by them. It is further insisted by counsel for appellant that the court erred in giving the fourth, fifth and seventh instructions for the appellees, and refusing certain instructions asked by appellant. We will consider the fourth and seventh instructions given for the appellees together, as they each involve the question of authority. The seventh was-predicated on the paper marked “ Exhibit A,” and the jury was told that that paper authorized John F. Evans to transact all of the business of P. IT. Evans, and that under that authority John F. Evans would have a right to pay or secure the creditors of P. H. Evans, the same as P. H. Evans would if he was transacting the business, and the fourth instruction directed the jury that if they believed John F. Evans had authority front P. EL Evans to attend generally to his business, that that was sufficient authority to make the disposition of .the property he did.

These instructions are in harmony with what we have heretofore said in regard to the authority given by P. H. Evans to John F. Evans, and what John F. Evans had the right to do under that authority. There was no error in giving them. The fifth instruction in effect informed the jury that fraud is not to be presumed, but must be proved by facts and circumstances in the case, and the law presumes any business transaction to be honest until the contrary is shown by proof or circumstances proven in evidence. This instruction announced the law correctly. Appellants could not have been injured by said instruction under the evidence in this case, as there was no evidence tending to show fraud. The first and fifth instructions refused for appellant, gave this instruction to the paper signed by the appellees and the bill of sale signed P. H. Evans, by John F. Evans to appellees, that on the levy of the attachments set up by appellant that the appellees were relieved from all liability to pay P. H. Evans for said property, and such conveyance became and was void as to attaching creditors. We do not feel called upon to say more than we have heretofore said as to the proper construction of said paper. These instructions being in conflict therewith, we hold that they were correctly refused.

The third refused instruction for appellant was properly refused. There was no evidence on which to base the question of reasonable time. ■ The appellees came into possession of the property on the 5th day of February, and it was levied on by the appellant on the 7th of February. It had only been in their possession two days. The fourth refused instruction for the appellant, so far as it announced the law, had been given in other instructions, and the same maybe said of the sixth refused instruction. It is not error to refuse an instruction though it may contain a correct proposition, when the substance of it is contained in another instruction, given at the instance of the same party. Curtis W. Boylston et al. v. Samuel Bain et al., 90 Ill. 283.

There was no error in the giving or in the refusal of instructions. The law was correctly given to the jury. The verdict .of the jury gave substantial justice. The judgment is affirmed.

Affirmed.


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    The Northwestern Benevolent and Mutual Aid Association v. Bridget E. Cain.

      Life Insurance — Statements as to Condition and. Habits — Whether Representations or Warranties — Distinction—Review of Authorities — Instruct, tions — Practice—Examination of Witness out of Order — Discretion-
    1. In an action upon a certificate of membership in a mutual aid association, it is held; That the statements made by the insured in regard to his condition and habits are representations, and not warranties; that it is sufficient if they were made in good faith, although some one or more of them may have been untrue, and that there was no error in the refusal of the court below to give certain instructions which treated such statements as warranties.
    2. An instruction asked by the defendant which is more comprehensive than any of his pleas should be refused.
    3. Whether the examination of a witness shall be permitted out of the usual and regular order is within the discretion of the trial court.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court" of Marshall County; the Hon. T. M. Shaw, Judge,, presiding.
    Statement of the case by Welch, J. This was an action of assumpsit brought by appellee against appellant upon a certificate of membership issued by the appellant to Thomas W. Cain, on the 14th day of May, 1883, by which the sum of $2,500 was to be paid within sixty days after the death of said Cain, to his wife, the plaintiff below and present appellee.
    The certificate of membership at its conclusion contains the following clause: “ This certificate is issued upon the condition that the said Thomas W. Cain shall comply with the constitution and by-laws of this association and that the statements in the application for this certificate are true.” To the declaration the appellant filed several special pleas, in which it was set up by way of defense that "the certificate issued was based upon the application in writing for membership in the said association made by said Thomas W. Cain, in which, among other things, he made untrue representations in regard to his condition and habits as follows:
    1. To the question, do you believe yourself to be free from all disease, hereditary or otherwise, tending to shorten life ? A. Yes.
    2. Has your general health been uniformly good for the past ten years? A. Yes.
    3. If you use alcholie or other stimulants, opium or other narcotics, state which one, how long, and to what extent; answer fully. A. Beer, moderately.
    4. Have you personally consulted a physician, been prescribed for, or professionally treated within the past ten years ? A. Yes.
    If so, give dates, and for what disease. A. For nervousness, about ten years ago.
    Name and residence of that physician ? A. Dr. Downey, Wenona.
    5. Do you agree that the habitual use- of alcholie drinks, opium or other stimulants to an excess, liable to permanently injure your health, shall render this contract null and void? A. Yes.
    To the pleas setting up the- untruthfulness of the representations made in the application, in respect to the questions and statements above quoted, replications were filed taking issue.
    Verdict and judgment for the appellee, from which this appeal is taken.
    Messrs. MoNulta & Weldon, Hamilton Spencer and John H. Jackson, for appellant.
    The first question which arises in this case is, whether the statements made by Cain, in his application for membership, are warranties, and if they were in any respect untrue, whether such want of truthfulness avoids the contract between the parties. If those statements are warranties, then, by the terms of the contract between the parties as shown by the agreement contained in the application and the condition in the certificate of membership, whether bearing directly or not upon the risk, will be sufficient to avoid the contract of insurance. The parties chose to make a contract for themselves. They fix its terms and conditions, and agree as to what false representations shall render the contract void. This agreement no court has power to change or modify. We think this proposition is abundantly established by the cases cited below. Hartman v. Keystone Ins. Co., 21 Pa. St. 466; Jeffreys v. Economical Ins. Co., 22 Wall. 47; Anson on Contracts, 141; May on Insurance, Sec. 156.
    Ho particular form of words is necessary to constitute a warranty. Any statement or stipulation upon a literal’ truth or fulfillment of which, in the intention of the parties, the validity of the contracts is made to depend, whether appearing as a condition or warranty, or however otherwise, amounts to a warranty. Whenever the statements made in the application are referred to in the policy itself, and by express terms are made part of it, or they are declared to be the basis upon which it is made, or the policy is declared to be issued upon the faith thereof, there can be no doubt that such statements and stipulations are embraced in, and constitute- part of the policy. May on Insurance, Sec. 158, and’ cases cited.
    But even assuming that these statements are to be treated only as representations, and not warranties, they, nevertheless, are material representations, and the difference in legal effect between representations thus made and warranties is important, if indeed there be any. Price v. Phoenix Ins. Co., 17 Minn. 497.
    Messrs. Edwards & Evans, for appellee.
   Welch, J.

The first question which we shah consider is whether the statements made by Gain in his application for membership are warranties, and if they were in any respect untrue, whether such want of truthfulness avoids the contract between the parties.

The application in the case of the Illinois Masons Benevolent Society v. Charles E. R. Winthrop, Adm’r etc., 85 Ill. 537, contained this provision : “ It is hereby declared that the above are true and fair answers to the foregoing questions, in which there is no misrepresentation or suppression of known facts, and I acknowledge and agree that the above statements shall form the basis of the agreement with the society.” This was held to be a representation and not a warranty. In the policy in the case of Price v. Phoenix Mutual Life Ins. Co., 17 Minn. 497, it was provided, and “ declared to be the true intent and meaning of this policy, and the same is accepted upon these express conditions, that * * * if any of the declarations or statements made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, then and in every such case this policy shall be null and void.”

The court in that case held the answers to the questions in the application to be representations and not warranties and ■ that it was sufficient if they were substantially true. In Campbell v. Now England Mutual Life Ins. Co., 98 Mass. 381, the court say: “In considering the question whether a statement forming a part of the contract is a warranty it must be borne in mind as an established maxim that warranties are not to be created or extended by construction. They must arise, if at all, from the fair interpretation and clear intendment of the words used by the parties.

“ When, therefore, from the designation of such statements as statements, or as representations, or from the form in which they are expressed, there appears to be no intention to give them the force or effect of warranties, they will not be so considered.”

In that case it was provided that the amount of the policy should be payable upon the following conditions (among others):” “If the statements by or in behalf of or with the knowledge of the said assured to said company as the basis of or in the negotiation for this contract shall be found in any respect untrue then the policy shall be null and void.” After answering the various questions propounded in the application to him he said, “the foregoing arc full, fair and true answers to the questions proposed,” and it was signed by him. These statements of the policy and application combined were held to give the answers in the application only the force of representations and not warranties. In the case of Monlor v. American Life Ins. Co., 111 U. S. 335, the application contained the following agreement:

“ It is hereby declared and warranted that the above are fair and true answers to the foregoing questions ; and it is acknowledged and agreed by the undersigned that this application shall form part of the contract of insurance, and that if there be in any of the answers herein made, any untrue or evasive statements, or any misrepresentation or concealment of facts, then any policy granted upon this application shall be null and void, and all payments made thereon shall be forfeited to the company.”

The Circuit Judge on the trial of this case before a jury held the statements in this application warranties, and charged that if his answers were untrue to certain questions, and notwithstanding he may have ignorantly and honestly made the answers, the policy was void and no recovery could be had upon it. This charge the Supreme Court say was in effect holding the statements in the application to be warranties, and that in so doing the Circuit Court erred. In the view we take of this' case in the light of the foregoing authorities, we hold that the statements made by Cain in his application are representations and not warranties, and that if the statements were made in good faith, although some one or more of them may have been untrue, if the misstatement was not intentional, but was made in good faith and under a belief that the statement was true, the misstatement did not operate to avoid the policy.

It is sufficient if representations be substantially true. In view of what we have said there was no error in the refusal of the first instruction asked by the appellant. It is as follows:

1. The court instructs the jury on the part of the defendant that the statements made by Thomas W. Cain in his application for membership in the defendant association, as to the facts relating to his health or his habits of temperance, are warranties, and not merely representations, and if any of those statements were untrue, whether Cain knew them to he false or not, the contract of insurance is thereby rendered void, and if the jury believe from the evidence that the statements made in the application for membership were really false, they must find for the defendant.

It is also insisted by the counsel for the appellant that the court erred in refusing to give the fourth, fifth, and sixth of the appellant’s instructions. The fourth and fifth were based upon the answer to question Ho. 4 in the application. Each of them was predicated upon the idea of the absolute truth of these answers, treating them as warranties and not as representations.

There was no error in their refusal. The sixth instruction was as follows:

6th. “ If the jury believe, in this case, that the preponderance of the evidence shows that Thomas W. Cain, during the last four years of his life, at any time immoderately indulged in the use of alcoholic stimulants of any kind, they will find for the defendant.”

It is insisted by counsel for appellant that this instruction was proper under the plea which alleges that Cain falsely and fraudulently represented to the appellant that he used alcoholic or other stimulants, opium or other narcotics, only by using beer moderately; whereas, in fact, at that time and for a long period before, said Cain had used alcoholic and other stimulants immoderately and to great excess. This instruction was more comprehensive than the plea; it not only embraces the period at the time and prior to the application, but included the period subsequent thereto down to his death. This instruction was not proper under the other plea charging that he was addicted to the use of alcoholic stimulants so that he was permanently injured. It ignored the permanent injury. There was no plea under which that instruction was proper.

It is also insisted that the court erred in not allowing Dr. Potts to testify. The question was one of discretion with the trial court, and we do not think the discretion Avas improperly exercised. After a careful consideration of this case we are satisfied there was no error in the law as .given by the court, or in the conclusion rendered by the jury. Substantial justice has been done.

Judgment affirmed.


text:
    Charles S. Dole v. David Clow.

      Action to Recover Damages for Orerflotving Lands-^Conflict of Evidence —Questions for Jury — Instructions—Pleading.
    1. Where the evidence is conflicting and there is enough to support the finding, this court will not interfere with the verdict on the ground that it is against the evidence. In such a case the court will not attempt nicely to weigh the evidence on each side, and will grant a new trial only when the verdict is manifestly against the evidence.
    2. The plaintiff in his declaration must clearly state the nature of the defendant's liability, and must clearly prove that liability as laid.
    3. In an action to recover damages for overflowing plaintiff’s land, it'is held: That, although the evidence is conflicting, the proof sustains the declaration; that the questions involved were for the jury, and that the instructions given for the plaintiff properly submitted the controverted questions to the jury.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of McHenry County; the Hon. Charles Kellum, Judge, presiding.
    Messrs. T. D. Murphey and Paddock & Aldis, for appellant.
    The court erred in giving instructions Nos. 3 and 5 for the plaintiff in the court below.
    Concerning the natural height of the lake, they are in obvious conflict with the instructions given for the defendant on that subject, and do not give the correct legal rule, and we insist must have misled the jury. By the third instruction the jury are told to find the defendant guilty if they found from the evidence that by.the dam or slaslnboards the waters of the lake were raised and elevated above their natural and usual height during the summer months of the year. By the fifth instruction the jury are told, by the court, that they should find the defendant guilty, if from the evidence they found that by his act he had maintained the waters of said lake above their natural and usual height during any summer month during the last four years. This does not naturally or necessarily refer to a raising during the summer months of the lake above its natural and usual height. Such is not the ordinary significance to be derived from language so arranged. But obviously it lays down a different rale as to the rights of the defendant from that laid down in the defendant’s instructions, and hence in conflict with it. The fifth instruction so reads as to manifestly limit the height to which the defendant must confine the water to the minimum height in summer, which, as shown by the evidence, is at a low stage of water. At such stage the water did not flow out of the lake through its outlet, and off by the natural stream or water-course leading from it to Fox Biver. And yet, the defendant, under the law and the defendant’s instructions, had the right to leave the lake up and keep it up to the very point where the lake waters would flow out through its natural outlet, and away over his soil.
    We claim that the instructions complained of took from the defendant below the exercise of a natural right that belonged to him as a riparian owner; namely, of keeping his hanks and consequently the lake at the height which nature fixed, and that the instructions in effect stated that if the water exceeded the level during any of the summer months, when the water was low in the lake, the defendant was liable for any damage resulting therefrom, even though the level at which he kept the lake in these months was not as high as the natural level of the lake when it flowed through its natural outlet and ran away in a well defined channel through the water-course called Crystal Lake outlet. Plumleigh v. Dawson, 1 Gil. 544.
    The jury could not correctly decide which set of instructions was correct and which erroneous. That they were in flat conflict with each other was obvious, and it was error to so instruct the jury, for which, if for no other reason, we respectfully insist the judgment must be reversed. Ill. Linen Co. v. Hough, 91 Ill. 63; Quinn v.. Donovan, 85 Ill. 194; Morris v. Gleason, 1 Ill. App. 510; Joliet v. Walker, 7 Ill. App. 267; Ottawa, O. & F. R. R. Co. v. McMath, 4 Ill. App. 356; Sweet v. Leach, 6 Ill. App. 212; Gale v. Eector, 5 Ill. App. 481.
    The defendant was a riparian proprietor, and therefore had the legal right to have the water in the lake come to his bank and flow out, as it naturally would at any and all seasons, undiminished in quality and in quantity. Angell on Water Courses, Secs. 100a, 101a and 102; Wood on Nuisances, Sec. 350; 3 Kent’s Comm., 537; Plumleigh v. Dawson, 1 Gil. 544; Gould on Waters, Sec. 204; Evans v. Merriweather, 3 Scam. 494.
    The defendant was under no legal obligation to lower the lake for the purpose of enabling the plaintiff to drain his land by artificial ditches. The plaintiff has no claim upon any one to lower the water in Crystal Lake by artificial means, to thereby create ,a receptacle for the waters proceeding from his wet marshy lands through artificial ditches. Peck v. Harrington, 109 Ill. 611; Angell on W. C., Sec. 108; Goodale v. Tuttle, 29 N. Y. 469.
    Mr. M. D. Brown, for appellee.
    The owner of a servient heritage has no right by embank, ments or other artificial means, to stop the natural flow of the surface water from the dominant heritage and thus throw it back on the latter. Gormley v. Sanford, 52 Ill. 158; Gillham v. The Madison County R. R. Co., 49 Ill. 484; Tuttle v. Riddle, 26 Pa. 154; Williams v. Sandbeak, 47 Pa. 154; Laney v. Jasper, 39 Ill. 46; Livingston v. McDonald, 21 Iowa, 160.
    The plaintiff could maintain his action if his lands were overflowed any season of the year, by a dam raising the water beyond its usual and ordinary height. Marh v. Shultz, 29 N. Y. 346 ; Gerrish v. New Mfg. Co., 10 Foster (N. H.), 478. These authorities apply to and clearly support the third and fourth instructions given by the appellee.

      A man has no right to erect a mill-dam on his own land so as to throw the water back to his neighbor’s line in the ordinary stage of the stream, and thus cause his neighbor’s land to be overflowed by the natural swelling of the stream at certain seasons of the year. McCay v. Dunby, 20 Pa. St. 85. This case also supports the third and fifth instructions.
   Welch, J.

This was an action on the case brought by the appellee against the appellant to recover damages for injuries claimed to have been caused by the damming up by appellant of the outlet of Crystal Lake, and thereby flooding the land of appellee. The lands of appellee claimed to have been injured comprise about fortv-iive acres of a farm of about two hundred acres lying and bordering on the north shore of said lake. This lake is about one and three quarter miles east and west and about three fourths of a mile north and south. A portion of this farm has a lake shore front on the north of about three quarters of a mile. This forty-five acres claimed to have been injured is separated from the lake by a ridge of loose sand, gravel and pebble stones, some three feet in height. The outlet of the lake is situated at its.southeast corner. The appellee had a ditch on liis lands from the lake, connecting with his forty-five acres. The appellant was the owner of all the lands bordering upon and around the lake, except that owned by the appellee and a small piece of land owned by James Crow, near the northeast corner of said lake. The declaration contains two counts. The first count avers that the appellant “ wrongfully stopped up, dammed up, obstructed, raised and elevated said waters of said Crystal Lake, and then and there and thereof, and by reason thereof, from thence, during all the time aforesaid, unjustly and wrongfully made and caused to be made and kept and continued, and still doth make, keep, cause and continue, large quantities of the said waters of said Crystal Lake to run and flow to, into, upon and over the said messuage, lands and premises of the said plaintiff, and thereof unlawfully, unjustly and wrongfully, by means thereof, greatly injured the plaintiff,” etc. The second count avers that the appellant “ doth cause, procure and continue largo quantities of water to run upon, into and over, and to flow upon and into the lands of the plaintiff.” It is first insisted by the learned counsel for the appellan t that the proofs made do not agree with the case alleged, and do not support it.” If this position is true, then no recovery could be sustained in this action. Under the well established rule of pleading, the plaintiff must in his declaration clearly state the nature of the defendant’s liability, and that liability must be proved as laid. We have carefully examined the record in this case, and while we find a sharp conflict in the evidence, we are not prepared to say that the proof does not sustain the declaration. We do not deem it necessary to refer to the testimony in detail. The evidence for the appellee tended strongly to prove that the placing of the flash hoards by the appellant, in 1877, at the natural outlet of said lake, had caused the waters in said lake to rise some two feet higher than it was prior thereto; that the lands claimed to have been overflowed had, prior to the placing of the flash boards, been dry and could be cultivated, and that since they were placed at the outlet the waters of said lake had flowed to, over and upon the said land of appellee, causing said land to be overflowed and rendered worthless for crops. There was also evidence for the appellee tending to prove that the placing of the flash boards by the appellant at the outlet of said lake had caused the waters in said lake to rise some two feet higher, and thereby had impeded, dammed and 'stopped the flow of the water from appellee’s ditch into said lake, and had caused the same to flow back to, on and over the appellee’s lands, thereby causing said lands to be overflowed. The evidence for the appellant tended to prove that the placing of the flash boards did not cause the waters in said lake to rise higher; that the escape of the waters from said lake had not been impeded, and that no water from said lake had flowed to, over and upon the lands of appellee, and that the escape of the water through the ditch of the appellee into the lake was not dammed, stopped or impeded by the placing of the flash boards. In this conflict of evidence the Supreme Court has uniformly held, that the verdict will not be disturbed on the ground the verdict is against the evidence, where there is enough to support the finding.” In such a case the court will not attempt to nicely weigh the evidence on each side, and will only grant a new trial when the verdict is manifestly against the evidence. White v. Clayes, 32 Ill. 325; Tolman v. Race, 36 Ill. 472; Umlauf v. Bassett, 38 Ill. 96; Harbison v. Shook, 41 Ill. 141; Stickle v. Otto, 86 Ill. 161; Addems v. Suver, 89 Ill. 482; Howett v. Estelle, 92 Ill. 218. There was no question as to the placing of the flash boards by the appellant at the outlet of said lake, but whether the waters of said lake were raised thereby and caused to flow from and over the lands of appellee from said lake, or whether the water from the ditch of the appellee was impeded, dammed and stopped, and caused to flow back to, on and over appellee’s, lands in consequence of the placing of said flash boards, were all questions of fact. It was the province of the jury to find the facts and to determine the weight and credit to be given to the testimony. Bishop v. Busse, 69 Ill. 403. The objection to the 3d and 5th instructions given for appellee is not well taken. All of the controverted questions arising in the case were by these instructions clearly submitted to the jury. The fixing of the time at the summer months as to the height of the waters in said lake, prior to the placing of the flash boards, was correct. The question-for the jury to determine was so stated, supra. We find no error in the law as given. Substantial justice has been done.

Judgment affirmed.


author: Lacey, J.

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    The H. B. Pitts’ Sons’ Manufacturing Company v. The Commercial National Bank.

      Covenant not to Sue within Limited, Time — Plea in Bar in Action before . Expiration of Time — Demurrer—Abatement.
    1. A covenant not to sue within a limited time can not he pleaded in bar to an action brought before the time has expired, although contained in a composition agreement in which the rights of third parties are involved.
    2. In the case' presented it is held that the plea is clearly in bar and - can not be treated as a plea in abatement.
    [Opinion filed December 11, 1886.]
    In error to the Circuit Court of La Salle County.
    Statement of the case by Lacey, J. This cause of action is based on three promissory notes of date January 2, 1883,-for $1,192.16, due December 15, 1885, with interest at six per cent., executed by the H. A. Pitts’ Sons’ Mfg. Co. to A. B. Meeker & Co., and by them indorsed to the appellee; and another note dated March 21, 1885, for $654.61, due in ninety days, also executed by and to the same parties, and also indorsed to appellee; the third note was of date April 16, 1885, due in five months, executed by and to the same parties and indorsed to appellee, and was for the amount of $466.26.
    To this cause of action appellant filed a plea in bar setting up that the appellee was not the bona -fide holder of either of the notes, but held them in trust for Meeker & Co., the payees. That on the 1st of December, 1885, appellant being in embarrassed circumstances and unable to meet its financial obligations, and the said A. B. Meeker & Co. then threatening to sue appellants on said notes, and the said appellants being at the same time indebted in large sums to other creditors then due, who were also threatening to sue, the firm of Meeker & Co., at the request of defendants, and in consideration that the other creditors would withhold suits against appellants, by-giving further time of payment, agreed with appellants and with their other creditors to withhold suit.against them, and to extend the' time of payment on said notes as follows: One fourth of the amount of each of the notes till 15th December, 1886; one fourth of the amount of each until the 15th day of January, 1887; one fourth of the amount of each till the 15th day of December, 1887, and one fourth of the amount of each till.the 15th day of January, 1888, and not to sue said appellants on either of said notes until default of payments on the said further days aforesaid. That the - said other creditors did, in pursuance of them agreement, withhold suits according to agreement.
    This suit was commenced and plea filed before either of the said installments became due in accordance with the said agreement. Appellee interposed a demurrer to the said plea which was sustained by the court, and appellants abiding by their plea, the court rendered judgment against them-on the notes for $2,571.47, from which judgment this appeal in taken, and appellants assign for error the sustaining of the demurrer and rendering of judgment as aforesaid.
    Messrs. Bull, Straws & Ruger, for plaintiff in error.
    The Supreme Court, following the tendency of modern decisions to disregard a meaningless technicality; and in the plain furtherance of justice, and with the object of avoiding useless litigation, holds that a plea setting up a covenant not to sue within a limited ‘time may be pleaded in abatement, if not in bar.
    In this case the plea may properly be considered a plea in abatement. A judgment upon it would be no bar to an action after the extension had expired. It was pleaded at the first opportunity and was verified by affidavit. It is immaterial whether the plea concludes “wherefore it prays judgment, etc.,” or “wherefore it prays judgment of the said writ and that the same may be quashed.” Drake v. Drake, 83 Ill. 526.
    It presented a defense calculated to protect not only the rights of plaintiff in error, but the rights of creditors who had been lulled into security by the mutual covenant to withhold suit, and who had kept their agreement in good faith and lost whatever advantage might have been acquired by immediate action. It was, therefore, a substantial and meritorious defense, and the court properly allowed it to be amended. Drake v. Drake, 83 Ill. 526.
    In none of the cases is it held that an agreement between a creditor and debtor that involves the rights of other creditors, or, in other words, a composition agreement between creditors and a debtor to extend the time of payment, can not be pleaded in bar. We believe that this amended plea was a good plea in bar, to protect the rights and interests of third parties. Perkins v. Lockwood, 100 Mass. 249 ; Farrington v. Hodgdon, 119 Mass. 453; Eaton v. Lincoln, 13 Mass. 424; Sage v. Valentine, 23 Minn. 102 ; Paddleford v. Thatcher, 48 Vt. 574 ; Fellows v. Stevens, 24 Wend. 294 ; Mellen v. Goldsmith, 47 Wis. 573 ; Pontius v. Durflinger, 59 Ind. 27 ; Renard v. Tuller, 4 Bosw. 107; Browne & Co. v. Stackpole, 9 N. H. 478; Pierson v. McCahill, 21 Cal. 122; Tatlock v. Smith, 6 Bing. 339; Austey v. Marden, 4 B. & P. 124; Wood v. Roberts, 2 Starkie, 417; Norman v. Thompson, 4 Exch. 755 ; Bradley v. Gregory, 2 Campb. 383; Butler v. Rhodes, 1 Esp. 236; Good v. Cheeseman, 2 B. & Ad. 328; Boyd v. Hind, 1 H. & N. 938; Steinman v. Magnus, 11 East, 390; Cockshott v. Bennett, 2 T. R. 763; Reay v. White, 1 Cr. & Mees. 748; Boothby v. Sowden, 3 Campb. 175 ; Belshaw v. Bush, 11 C. B. 190.

    Mr. D. B. Snow, for defendant in error.
    Inasmuch as our own Supreme Court have recognized and adopted the rule that a covenant not to sue within a limited time can not be pleaded in bar to an action brought before the time has expired, the Circuit Court surely committed no error in following the admitted precedents. Guard v. White-side, 13 Ill. 7, and authorities therein cited; Perkins v. Gilman, 8 Pick. 229; Cent. Bank v. Willard, 17 Pick. 150; Winans v. Huston, 6 Wend. 471; Thimbleby v. Baron, 3 Mees. & W. 210.
   Lacey, J.

The question involved here is, can a plea in bar be sustained to an action in a case where the time for the payment of the debt due had been extended by a new agreement between the parties based on a valid consideration, and that time has not expired before suit brought ? And was there in this case a valid consideration? The first of these propositions has been settled in the negative by our Supreme Court in a number of cases. In Guard v. Whiteside, 13 Ill. 7, the court says : “ A covenant not to sue within a limited time can not be pleaded in bar to an action brought before the time has expired. The remedy of the party is a direct action on the covenant. The law on this subject is too well established to admit of a doubt or discussion. * * * There is a very satisfactory réason why a plea in bar of the action should not be sustained.' A judgment for defendant on such a plea would forever conclude the plaintiff from bringing another action.” It was intimated, however, at the close of the opinion, that perhaps such agreement might be pleaded in abatement.

In Archibald v. Argall, 53 Ill. 207, and Canlan v. Johnson, 90 Ill. 91, it was held that such matter was in abatement and not in bar. We think that these authorities are conclusive of the case here. The plea was in bar and not in abatement. The demurrer, therefore, was properly sustained for that reason. The numerous authorities cited on page 9 of the brief of the plaintiff in error, we think not in point, as those were cases of composition agreements, where either there was an agreement to take less than the full amount of the debt or to take a third party for it, and in such cases the demand would be for the new amount agreed upon or against the third party.

The case of Drake v. Drake, 83 Ill. 526, is cited by plaintiff in error as authority for the doctrine contended for, that the plea in question though commencing and concluding as a plea in bar may be treated as a plea in abatement. We do not understand that the rule contended for goes to that length or that the case cited supports such, claim. The plea in that case was a plea properly to the jurisdiction of the court on the grounds that service was had in Oook County where the defendant resided, and not in DeKalb where the defendant did not reside and where the suit was brought, and that the cause of action was not local. The commencement and conclusion of the plea in the casé above cited was a prayer of “judgment of the writ and declaration and that the same be quashed,” in form a plea in abatement, and not “ whether the court ought to have further cognizance of the writ,” which would be in form of a plea to the jurisdiction of the court, which latter in order to preserve technical accuracy it should have been. A demurrer to the plea was sustained by the court, which action of the court was assigned for error. The court held the assignment, good, and in deciding the case said, quoting a-clause in the opinion in a former case, Humphrey v. Phelps et al., 57 Ill. 132 : “But the right of a party to be sued in the county where he resides and to have his cause tried there is statutory and he ought not to be denied that right, a right to him in many instances of the utmost importance, by any technical and metaphysical bearing in regard to pleas in abatement.” The court also decided that the plea was amendable under Sec. 23 of the Practice Act of July, 1872. But we do not understand that the court has ever gone to the length of holding that a plea clearly in bar can be treated as a plea in abatement. In fact the case of Guard et al. v. Whiteside, and the other cases cited, expressly negative such an idea. The fact that this was a composition agreement to extend time can, as we conceive, make no difference. It is the same as though the contract had been to extend time for some other valid consideration such as for money above the debt due or interest in advance, etc. The fact, that the consideration here, which we are inclined to hold good, was that others should also give time, could not change the rule. All that is done by this agreement is to extend time. There is no composition of the debt or displacement of the original contract as was the case in Gillfillan v. Farrington, 12 Ill. App. 101. If in this case, as above said, this plea is good in bar, the appellee would be forever concluded of its cause of action if the defense was made good under such plea, which would work a great hardship and be in the highest degree unjust. Perceiving no error the judgment of the court below is affirmed.

Judgment affirmed.


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    Branson Murray v. Lizzie D. Gibson et al.

      Action to Mecover Damages Caused by Digging Ditch along Highway adjoining Plaintiff's Land — Commissioners, no Power to Grant Might— Such Might can not be Granted by Parol — Parol License from Plaintiff-Condition — Ignorance of Law — Mevocation—Practice—Instructions to be Abstracted — Objections, Maised.too Late.

    1. The right to lay a tile drain for private purposes along a highway, is one which the Commissioners of Highways have no power to grant.
    2. The right to dig and maintain such a drain is such a right and interest in land as can not be given by parol but must be created by deed.
    3. In the case presented, it is held: That the jury must be presumed to have found the issue of fact as to whether the plaintiff granted permission to dig the ditch in question, in favor of the defendants; that the jury must also have found that the condition as to obtaining the consent of the Commissioners was complied with; that such finding is not manifestly against the weight of the evidence; that the evidence sustains a finding that there •was no revocation of the parol license prior to the commencement of this suit; that-it is sufficient that the plaintiff gave his consent to the digging of the ditch, although he was ignorant of his legal right to forbid it; that such consent or parol license until revoked was a complete bar to all suits for trespass on account of digging and maintaining said ditch; that said license protected any who assisted in digging the ditch, and that the claims, that the ditch was not properly constructed and that it should have been tiled at once, were for the jury to determine.

      4. Instructions must be abstracted as required by the rules of this court, and if objections are to be made to them they must be presented in the argument in chief. This court will not consider objections raised and argued for the first time in the reply brief of the appellant.
    [Opinion filed December 11, 1886.]
    In error to the Circuit Court of Livingston County; the Hon. N. J. Pillsbury, Judge, presiding.
    Mr. H. H. McDowell, for plaintiff in error.
    A parol license to overflow the land of another is an interest in the land, and is revocable at the will of the party granting it. Woodward v. Seely, 11 Ill. 157; Tanner v. Volentine, 75 Ill. 624; Kuhlman v. Hecht, 77 Ill. 570; Forbes v. Balenseifer, 74 Ill. 183 ; Washburn on Easements, 23.
    Every license, therefore, that authorizes such acts as not only require to be performed upon the land, but which gives some usufruct of the land itself, is properly a grant of an incorporeal hereditament, and must be created and transferred by deed. Kamphouse v. Gaffner, 73 Ill. 454; Woodward v. Seely, 11 Ill. 157; Cook v. Stearns, 11 Mass. 535; Morse v. Copeland, 2 Gray, 302; Hattield v. Central R. R. Co., 5 Dutcher, 571; Eggleston v. New York R. R. Co., 35 Barb. 162 ; Houston v. Saffer, 46 N. H. 505 ; Foster v. Browning, 4 R. I.47.
    The use of the highway for such a purpose is a new and additional burden upon the fee, and for such additional burden the owner of the fee is entitled to compensation. Board of Trade Telegraph Co. v. Barnett, 107 Ill. 507; L. B. & W. R. R. Co. v. Hartley, 67 Ill. 439.
    Messrs. Straws & Patton, for defendants in error.
   Lacey, J.

This was a suit originally commenced before a Justice of the Peace to recover for injury to appellant’s land by means of a ditch dug by defendant John T. Gibson, along the east end of appellant’s eighty-acre tract of "land, but within the public highway. The appellant recovered before the Justice, but upon appeal to the Circuit Court was defeated, the jury finding verdict for defendant, and upon motion for new trial being overruled judgment was rendered against appellant for costs, from which judgment this appeal is taken.

The facts of the case, as far as they are undisputed, are, that appellant was the owner of the N. ½ S. E. ¼ Sec. 19, T. 28, R. 5, E. 3d P. M., upon which tract a railroad was located east and west on the north line, and it had dug a deep ditch on the south side of the road in the right of way in order that appellant’s land might be drained into it, there being a fall eastward down the railroad and northward from appellant’s land to the ditch-. Appellant had been engaged and had nearly completed a system of tile drains of four-inch tile on his land about ten rods apart, running north into the railroad ditch, the water from the tiles beipg carried off east along in the railroad ditch. There was also a public highway along the east end of the appellant’s eiglity-acre tract running north and south, of which appellant owned the land over which the road ran, subject to the easement of the road.

John T. Gibson, one of the appellees, owned a seventy-acre tract just south of appellant’s eighty-acre tract,, the fall to which was northward, the same as appellant’s, but there was no well defined channel across appellant’s land, and, in fact no channel. Gibson was desirous of draining his land across that of appellant into the railroad ditch, and made application to appellant for leave to put a tile across his land. Appellant was willing, but upon terms to which the appellee John T. Gibson would not agree; but upon failure to agree he said to appellant, “I think you will hardly stop me going down the road,” and appellant replied, “Ho ; it will be between you and the Commissioners for that.” Appellant testifies that what he said was: “He wanted to know if I was willing he should lay a tile drain down the highway, and I told him that that matter belonged to the Highway Commissioners to settle.”

This was all the evidence on the question of this parol license. Appellee John T. Gibson dug the ditch along the highway in April, 1884, as he claims in pursuance of this permission, and for consent of the Highway Commissioners he shows a record of the Board of Highway Commissioners in June following, showing that it recognized the digging of the ditch that had been dug as proper, and made an appropriation to help pay for it. The Commissioners had never objected to the ditch being cut.

It is claimed that this ditch was improperly excavated at the mouth, being out at right angles with the railroad ditch, by reason of which by filling that ditch with a current of water shooting across it and by filling it with debris it caused the water to set back in the railroad ditch west past appellant’s land and thereby fill and cover the mouth of his tile with water, preventing him from draining his land and causing damage; also that the ditch had been improperly constructed in other. respects, so as to saturate and wet his land along the east end along which the drain ran. In the appellant’s opening brief the grounds relied on for reversal are that the verdict of the jury was not supported by the evidence, and that the court erred in allowing in evidence the record of the Board of Commissioners of Highways above referred to, at the same time arguing the state of the law on the effect of the parol agreement, the doctrine of revocation and the right of the Highway Commissioners to grant permission to dig the drain complained of.

Ho objection is made to any instructions, and in fact the instructions are not even abstracted as the rules of this court require. In the reply brief for the first time, several of the appellees’ instructions are objected to and elaborate argument is made to show their erroneousness. We cannot consider this argument. This practice can not be tolerated. First, the instructions must be abstracted, and secondly, in fairness to the opposite party, if there is to be any objection urged to instructions it should be brought forward in the argument in chief so that appellees may have an opportunity to answer them. Any other course would be unfair to the opposite counsel as well as embarrassing to the court in its consideration of the case.

In the opening brief for the appellant he denies that any parol license was ever granted by him to John T. Gibson to dig the ditch, by either himself or the Commissioners of Highways, and avers that no such license was proven, but adds, “but granting that plaintiff did give a license to dig the ditch, at most it was only parol, and that was revocable at the pleasure of the licensor; and when plaintiff instituted suit, this license if it ever wras given was then and there revoked as he had a right to do under the law.”

As to the law in the case, we think it is clear that the Commissioners of Highways had no right to grant to Gibson the privilege to dig the ditch in question, “as it -would be imposing an additional burthen and servitude on appellant’s land,” as is fully decided in I., B. & W. R. R. Co. v. Hartley, 67 Ill. 439, and Board of Trade Telegraph Co. v. Barnett, 107 Ill. 507.

It is also clear that the right to dig and maintain such ditch' is such a right and interest in the land that it would have to be created by deed and could not be given by parol. It is an easement and must be governed by the Jaw bearing upon the conveyance of such rights. Woodward v. Seely, 11 Ill. 157; Tanner v. Volentine, 75 Ill. 624 ; Kuhlman v. Hecht, 77 Ill. 570 ; Forbes v. Balenseifer, 74 Ill. 183; Kamphouse v. Gaffner, 73 Ill. 454; St. L. Stock Yards v. Wiggins Ferry Co., 102 Ill. 520. The doctrine in Russell v. Hubbard, 59 Ill. 335, is overruled or only has application in case of a party wall or some peculiar case in equity. See Kamphouse v. Gaffner, 73 Ill. 453, 461; Hayes v. Moynihan, 60 Ill. 409, is not in point. An easement was not involved in that case.

But the issue of fact as to whether appellant granted permission to dig the ditch was before the jury, and the jury may have, and we must presume, found the issue thereon in favor of appellees, and we are not prepared to say that such verdict was manifestly against the weight of the evidence. It is true it was conditional, and the jury must find that the condition was complied with by the appellee, John T. Gibson, getting the consent of the Commissioners, which it appears from the record he did, as they recognized the right to dig the ditch by paying for a portion of the expense for digging it.

The evidence shows no revocation of this parol license till the suit was commenced, at least the jury was justified in so finding by their verdict. It does not matter that the appellant did not at the time he gave his consent to the digging of the ditch, know that he had the right under the law to forbid it, nor that his ignorance of the law was the reason that he did so. It was sufficient that he gave his consent. Ignorance of the law would not excuse him or for that reason render his consent void.

And any argument urging that inasmuch as appellant did not understand the law and was not aware of his rights, he therefore could not have given his consent, would be more forcibly urged to the jury than here. We do not deem it sufficiently strong to overturn the verdict, as the jury has not seen proper to give it the weight that it is thought it deserved. The very fact, that appellant was under the impression that he had no right to object in case the Commissioners gave their consent, may have been the controlling cause of his giving his assent.

If he gave it, as the jury by their verdict thought he did, he would be bound by it. Such consent or parol license until revoked was a complete bar to all suits for trespass on account of digging and maintaining the ditch, and such license was not revoked till the bringing the suit. Appellee could not be made a trespasser from the beginning by means of the revocation. The fact that appellee Mrs. Gibson assisted in surveying and leveling tbe ditch would not make her a trespasser any more than it would John T. Gibson. If he had authority at the time to dig it, he might employ others to assist him without rendering them liable as trespassers. They would be protected under his license. The claim that the ditch was not properly constructed and that it should have been tiled at once, was also submitted to the jury whose verdict we deem justified by the evidence as well on this as all other questions of fact. Seeing no error in the record the judgment of the court below is affirmed.

Judgment affirmed.


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    The Alabama Insurance Company v. Kingman & Company.

      Equity Jurisdiction to Enjoin Judgments at Law — Judgment by Default on Insurance Policy — Service on “ Late Agent ” — Sufficiency of — Fraud.
    1. As a general rule a court of equity will not take jurisdiction to enjoin judgments at law where there is an adequate remedy at law. It will not review a judgment at law as a court of errors.
    2. The practice of resorting to courts of equity to enjoin judgments at law should not be encouraged.
    • 3. Upon a bill to enjoin a judgment by default on a policy of insurance, on the grounds that service on a “ late agent ” of the complainant company was insufficient and that said policy had been fraudulently altered, it is held: That the remedy at law by writ of error is complete, and that if the. judgment was obtained without jurisdiction, it is void even in a collateral proceeding.
    [Opinion filed December 11, 1886.]
    In error to the Circuit Court of Peoria County; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Cratty Bros., Fuller & Gallup, for plaintiff in error.
    Messrs. Foster & Kellogg, for defendant in error.
   Lacey, J.

Bill in equity by the plaintiff in error against defendant in error, brought in the Circuit. Court, showing that in 1884 plaintiff in error isáued a policy of insurance to defendants in error upon merchandise stored in East St. Louis. That after the delivery'of the policy it was fraudulently altered hy defendants in error, -without the knowledge of plaintiff in error, by changing the limit of other insurance to be permitted, from $15,000 to $25,000. Plaintiff was not awáre of it till 1885. That at the time the merchandise was destroyed by fire, the defendant in error had other insurance on the merchandise to the amount of $20,000, in violation of the terms of the policy as issued and in fraud of plaintiff in error’s rights, and that the policy was void, and some other grounds, but this was the main one.

That on November 17, 1884, defendant in error began a suit in assumpsit in the Circuit Court of Peoria County, based on said insurance policy, and on January 5, 1885, obtained judgment by default for $2,334.43 and costs of suit against plaintiff in error, claiming the property insured had been destroyed by fire, June 29, 1884. That plaintiff in error knew nothing of this till long afterward. The bill further avers that plaintiff in error was not in court by proper service or otherwise; that said judgment was rendered without jurisdiction and was void. The only pretended service - there was in the pase was by service of summons on Charles F. Bacon of Peoria, Illinois, and Mrs. M. It. Smith of Chicago, Illinois. The return on the summons made by the Sheriff of Peoria County was that the Sheriff had served it on him by delivering a true copy' of the writ to him designating him as the “ late agent ” of the plaintiff in error and that no president, clerk, secretary or director or other agent of the plaintiff in error was found in the said county. Done on 10th ¡November, 1884.

A similar return was made on the summons suit to the Sheriff of Cook County by the Sheriff of that county on Mrs. M. ¡R. Smith dated 19th November, 1884. That these were the only processes served.

The bill avers that at the time of the said pretended service on said Bacon and said Smith, neither of them was agent of plaintiff in error for the transaction of business in the State of Illinois; nor was either of them at any time the attorney or agent of complainant for the transaction of its business, or for the purpose of securing service of process on complainant in said estate; that neither of them gave any notice to plaintiff in error of the pendency of said suit — claims the service not binding on plaintiff in error and asks that the judgment be set aside and it allowed to plead to the merits of the suit; prays for a writ of injunction against the Sheriffs of Peoria and Cook Counties restraining each of them from collecting any fieri facias issued on said judgment.

An amendment was made to the bill that Mrs. Smith had been garnisheed, and she admitted that there was in her hands money to the amount of $548.68 belonging to plaintiff in error, and judgment was rendered and execution issued against her ; and that a transcript of the record had been taken and sent to Mobile, Alabama, and.suit brought on it at that place in the United States Cvurt where the case was being pressed for trial; offers to subm.i tc the jurisdiction of the Peoria Circuit Court and pay any judgment that might be rendered against it so far as able; avers it has property in this State subject to execution.

To this bill a general demurrer was filed, and upon healing the court sustained the demurrer for the want of equity on the face of the bill and rendered decree against the plaintifE in error, and from this decree this writ is brought to this court.

The main point urged in this case for reversal is that in the suit in assumpsit on the said insurance policy by the defendant in error, there was an entire failure to get legal services of process on plaintiff in error, and that sncli fact appears on the face of the record, the two Sheriff’s returns not showing a valid legal service.

The particular defect pointed out in such return is, that neither of the returns make a statement that the person to whom the true copy of the writ was given was the agent of the plaintiff in error, but was the “late agent.” It is urged that this is not a compliance with Sec. 4 of the Practice Act in this State. The cases of Ill. & Miss. Tel. Co. v. Ill. 319, and Mich. State Ins. Co. v. Abcns, 3 Ill. App. 499, are conclusive authority on this point of their contention.

On the other hand the defendant in error combats this claim and insists that, as the bill does not show that the plaintiff had not complied with the law of this State in reference to foreign insurance companies doing business in this State, it must be presumed that it had done so. In that case the defendant in error, also a corporation, contends that the service of process is good under Sec. 22, Chap. 73, Laws 1869, because such" service may be had on the agent after the insurance company ceases to do business in the State; and that service on the “ late agent ” is good. It is also insisted by defendant in error that the plaintiff in error, in case the service is void as alleged, lias a complete remedy at law by writ of error direct to the Appellate Court, and that therefore a bill in equity will not be entertained. Without stopping to pass on the sufficiency of the service of the summons we are inclined to hold that the point is well taken. If the service is void the remedy is com-. píete by writ of error, and if it is valid there is no pretense that the plaintiff in error has any grounds for relief; for if it was properly in court, its negligence in not making defense in the assumpsit suit would bar this action. It is generally held that in cases of fraud, accident and mistake, equity will take jurisdiction to enjoin a judgment at law even if the defendant may have a remedy at law. It is the fraud that gives the jurisdiction. Fraud, accident and mistake are original heads of equity jurisdiction. But the instances of resorting to a court of equity to enjoin judgments at law are not frequent, and the practice ought not to be encouraged. Foote v. Despain, 87 Ill. 28. See also Owens v. Ranstead, 22 Ill. 160. For other cases bearing remotely on the question, see Hoagland v. Creek, 81 Ill. 506; Blackburn v. Bell, 91 Ill. 434. We think it may he safely said that it is a general rule that courts of equity will not take jurisdiction to enjoin judgments where there is an adequate remedy at law.

In this case -we find no cause for exception to the general rule. It is nothing more than to ask a court of equity to review the judgment at law as a court of errors, and such practice is never allowed. • Again, if this judgment is void, as insisted, it should not need any reversal; for a judgment obtained without jurisdiction of the person is void, even in a collateral proceeding.

Seeing no error in the action of the "Circuit Court in sustaining the demurrer and dismissing the bill, the decree of the court below is affirmed.

Decree affirmed.


author: Per Curiam.

text:
    Jeremiah S. Moyer et al. v. Caroline Swygart.

      Jurisdiction — When a Freehold is Involved — Bill to Contest Will Devising Beal Estate.

    1. Where the primary object of the suit is the recovery of a freehold estate, the title whereof is directly put in issue, and where the suit, if prosecuted to a final determination, will, .by virtue of the judgment or decree renderecl therein as between the parties, result in one gaining and the other losing the estate, a freehold is involved.
    2. Upon a bill to contest the validity of a will which devised all of a tract of land to the defendant, it is held that this court is without jurisdiction, the question at issue being, whether the defendant shall have a freehold interest , in all the land or only an aliquot part as an heir of the testator.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Lee County.
    Mr. Sherwood Dixon, for appellants.
    Messrs. W. & W. D. Barge, for appellee.
   Per Curiam.

This was a bill in equity filed by appellee to contest the validity of the proposed will of John Moyer, deceased, which had been admitted to probate on the 9th April, A. D. 1884, and letters testamentary granted to John D. Crabtree-

It is alleged in the bill that in and by the said will the testator bequeathed portions of his estate, real and personal, to, as follows: To said Jeremiah S. Moyer, one of the appellants, the S. E. ½ of section 18, T. 22 N., range 9, east of the 3d P. M., in said Lee County, to have and to hold to him, his heirs and assigns forever, and also a certain horse, called Prince,” and carriage and carriage harness. That at the time of the pretended execution of the said pretended will the said John Moyer, the testator, was not of sound mind and memory, but on the contrary was in his dotage and his mjnd and memory so impaired as to render him wholly incapable of making any distribution of his estate. That the said Jeremiah 8. Moyer used and exercised many undue arts and fraudulent practices, and resorted to falsehood and misrepresentations to induce the said John Moyer to execute said paper, and if he did execute the same he was under improper restraint and undue influence from said arts and fraudulent practices.

The bill makes said Jeremiah S. Moyer, John E. Moyer, Eva Kline and John D. Crabtree respondents, and prays that said will and probate be set aside. The executor and John S. Moyer filed answers denying the incapacity of the said testator and that he was under undue influence as charged in the bill. The other respondents also filed answers putting in issue the charge of incapacity and undue, influence. This issue of fact was submitted to .the jury, and .their verdict was that the writing in evidence was not the will of the said John Moyer, deceased. Motion by appellants for a new trial which was overruled, and decree setting aside the will and awarding costs against appellants, was passed by the court. From such decree the appellants appealed to this court.

The appellee, by her attorneys, moves this court to dismiss the appeal in this case for the reason that a freehold is involved and the court has no jurisdiction to pass upon the issues involved herein. The decision of this motion was by the court reserved to the hearing. We find no case decided by the Supreme Court exactly in point with the case at bar, but we think the principle has been decided by that court. The rule announced in C., B. & Q. R.R. v.. Watson, 105 Ill. 217, we think is broad enough to cover this case. It is there laid down as a rule that “where the primary object of the suit is the recovery of a freehold estate the title whereof is directly put in issue, and where the suit, if prosecuted to a final determination, will, by virtue of the judgment or decree rendered therein, as between the parties, result in one gaining and the other losing the estate, a freehold is involved.”

In Gage v. Scales, 100 Ill. 218, it was held, in a case where the original owner of real estate filed a bill to set aside as a, cloud on his title, a tax deed held by another, on the grounds that the real estate had been redeemed from the sale upon which the tax deed was based, that a freehold was invol ved. The court say, that “if a redemption was made, that defeats the appellant’s title; if, on the other hand, no redemption was effected, then the title of the property passed under the deed. It seems plain that within the meaning of the statute a freehold is involved.”

In the Chicago Theological Seminary v. Gage, 103 Ill. 175, the same rule is announced and the doctrine adhered to, though opposed to the views of Judge Mulkey, the writer of the opinion, he adhering to the rule on the ground of judicial precedent. The decision in the case at bar settles the question of the validity of the proposed will of John Moyer, deceased, and in consequence the claimed ownership of a freehold interest of Jeremiah S. Moyer in the quarter section of land bequeathed to him by the will. It settles the question beyond any power on his part to avoid it, whether he shall have a freehold interest in all the land described or only an aliquot part as heir of John Moyer, deceased. We know it has been the practice to dismiss suits of precisely the character of this, by some other’ of the Appellate Courts, for the want of jurisdiction, and the case afterward taken to the Supreme Court on error and jurisdiction by that court retained, though probably the point of jurisdiction was not raised before it. We cite Freeman v. Easley, 117 Ill. 317, which was appealed directly to the Supreme Court from the Circuit Court and was a case of contest of will by bill in chancery. We are of opinion that a freehold estate is involved; therefore the motion to dismiss the appeal for want of jurisdiction is sustained, and leave is given to appellant to withdraw the record.

Appeal dismissed.