author: Lacey, J.

text:
    Chase Glidden v. Cenia Nelson.
    Bastard child—Liability of father for support.—It is necessary to show that the father of an illegitimate child made an express promise for his necessary maintenance, or adopted him as his own, or proceedings were held under the bastardy laws to render the father legally liable to support such child.
    Appeal from the Circuit Court of De Kalb county; the lion. Charles Kelltjm, Judge, presiding.
    Opinion filed August 20, 1884
    Tills was an action of assumpsit commenced by appellee against appellant in the circuit court in April, 1883, to recover for the care, nurture and maintenance of the bastard child of the appellee which she claimed was begotten by the appellant, out of wedlock, and while she was an unmarried woman.
    It appears from the evidence that some time from 1872 to 1875 the appellee entered service in the family of James Glidden, the father of appellant, as a house servant, and was there in that capacity at various times from that date up to a few months before this suit was brought. During that time James Glidden was absent from home more or less, and appellant, his son, lived at home and had charge in part of the farm and work. The wife of James Glidden, the appellant’s mother, was at home nearly all the time and had charge of the house. The appellant is now thirty years old and was married in 1882. The appellee testifies that the child was three years old July 17, 1883, and that it was begotten by appellant while she was an inmate of his father’s family, and that in consequence of her pregnancy in the spring of 1880, she was requested by appellant to go away, and that if she did not go away he would have to leave, and that she accordingly went to the State of Wisconsin, and there, at the home of her sister, Mrs. Mason, gave birth to the child. She afterward returned to Glidden’s.
    The appellant denies all knowledge of the child until about a month after he was married, and denies having had sexual in-’ tercourse with the appellee, and denies any intimacy with her, and his father and mother testify that they never saw appellant have any improper intimacy with her, and the mother saw nothing different between appellant and appellee while at her house from the ordinary way in which an ordinary hired girl is treated, and did not know she was in the family way. Appellee had a husband, but she thinks he was dead and had been dead about ten years at the time she testified—got killed on a railroad. She got a letter from him that he was coming to see her on the train and there was an accident on the train that he was to come on, and she never heard from him after the letter. There was no express promise on the part of appellant to pay for the care and nurture of the child and he never adopted it as his own, and no proceedings in bastardy were ever commenced against him by appellee. There was a recovery of $000 by appellee, which judgment is appealed from. There is the evidence of appellee that appellant promised to send her money to Wisconsin, made just before she left Glidden’s, but it clearly appears that this promise referred solely to her wages and nothing more.
    Messrs. Cabres & Denton, for appellant;
    that a complaint under the Bastardy Act must be filed by an unmarried woman, cited Durham v. People, 49 Ill. 233; Cook v. People, 51 Ill. 143; Volksdorf v. People, 12 Bradwell, 534.
    There is no liabilitj' on the part of a father of an illegitimate child to support such child, except on an express promise or on proceedings instituted under the bastardy laws: 5 Wait’s Actions and Defences, 49; Cameron v. Baker, 1 C. & P. R. 268; Furillio v. Crowther, 7 D. & R. R. 612; Moncrief v. Ely, 19 Wendell, 405: Wiggins v. Keizer, 6 Ind. 252; 2 Kent’s Com. 215; Schouler’s Domestic Relations, 2d Ed. 384; 1 Parsons on Contracts, 260.

      Messrs. Jones & Bishop, for appellee;
    cited Cameron v. Baker, 1 C. & P. 268; Hesket v. Going, 5 Ep. 131; Linnegar v. Hood, 5 C. B. 437; 1 Jacob’s Fisher’s Digest, 1018; Gore v. Hawsey, 3 F. & F. 507.
   Lacey, J.

Three main points are made by appellant as grounds for reversal. First, that there was no sufficient proof that the husband of the appellee was dead at the time of the alleged act of bastardy. Second, that there is no preponderance of proof that the appellant was the father of appellee’s child, and thirdly, that under the proof there can be no recovery for want of an express promise on the part of the appellant to pay for the care and nurture of the child. It is claimed that there is not sufficient proof that seven years had elapsed from the time appellee last heard of her husband, to the time of the conception of the child, and hence no proof of the death of the husband; and as to the second point, that the evidence that appellant was the father of the child, rests alone on the testimony of appellee, contradicted by the positive denial of appellant, who, it is claimed, is corroborated by circumstances testified to by the appellant’s father and mother, and that this proof is insufficient.

However this may be, we have not deemed it necessary to determine, as the decision of the case must rest on the third point made.

As to the third point, we find no evidence in the record to show that the appellant at any time made any express promise to pay for the care, nurture and expenses attending the birth of the child, or for any other matter concerning the maintenance of it; nor is there any proof that the appellant ever adopted the child as his own, or that any proceedings in bastardy were ever had against appellant by appellee.

We find upon examination, that the authority cited by counsel for the appellant fully sustains the doctrine contended for, that unless the father voluntarily adopts the child as his own, which he may do with the consent of the mother, he will not become liable for its necessary maintenance. That in other cases he is not liable except on an express promise or an order of affiliation. This is the common law rule on the subject. But upon the strength of the natural or moral obligation arising out of the relation of the putative father to his child, an action at common law lies for its maintenance and support upon an express promise. Wait’s Actions and Defences, Vol. 5, p. 49; Cameron v. Baker, 1 Carrington & Payne, 268; Furillio v. Crawther, 7 Dowling & Rylands, 612; Moncrief v. Ely, 19 Wend. 405; Wiggins v. Keizer, 6 Ind. 252; 2 Kent’s Coin. 15; Schouler on Domestic Relations, 2d Ed. 384; Parsons on Con tracts, Vol. 1, page 260. In the absence of statutory regulations, the father is under no legal obligations to support his illegitimate child. The statute prescribes the only legal mode by which this support can be obtained. Simmons v. Hull, 21 Ala. 501; Marlett v. Wilson, 30 Md. 240.

This being the law, under the proof in this case there could be no cause of action, and the verdict of the jury was entirely without evidence to support it. The judgment will therefore be reversed.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Adelbert B. Kipp et al. v. Nicholas Massin.
    1. Contract for building house—Prevented from completing by party to the oontbaot.—The court is of opinion that the evidence shows that appellants substantially complied with their part of the contract and wouldhave completely performed it, had it not been for the refusal of appellee to allow them to proceed, and that appellants having been prevented by appellee from completing the building on the time agreed, they are entitled to recover the contract price, less the amount that it would take to complete the work, together with interest from the time when they were prevented by appellee from proceeding.
    2. Costs.—The rale in regard to costs governing in chancery cases does not apply in proceedings under the statute to enforce a mechanic’s lien. The matter of costs in such cases is controlled by statute.

      Appeal from the Circuit Court of Livingston county; the Hon. Feanklin Blades, Judge, presiding.
    Opinion filed August 20, 1884.
    The appellants contracted with appellee, September 19, 1884, to construct a dwelling house on his farm, about six miles east of the town of Minonlc. The appellee was to do all the excavating necessary for the laying of all the walls, including cellar, cistern walls and piers, and deliver all materials necessary for the construction of the building on the ground ready and handy for the workmen. The appellants were to construct and lay the foundation walls 12 inches in thickness for the main building, which was to be 16x28 feet on the ground and an eight inch brick wall under the L part which was to be 14x16 feet; the wall under the main bpilding was to be six feet and that under the L part three feet high; piers were to be laid to support the porch foundation on each side of the L. The main building was to be eight feet high. The first and second stories to be connected by a box stairway landing in a hall above. The L part was to be 12 feet high with a porch and small room constructed on each side of it. The L to be constructed with and a part of the main building. The upper and lower floor joists to be 2x8 inches. All studding and upper ceiling joists to be 2x4 inches and 16 inches from center to center. All the floors, main and upper floor in the L, were to belaid with first common hard pine flooring. The kitchen floor to be laid with maple flooring wainscoted 2 feet 8 inches high. The siding to be cl ear-rafters, to be 2x4 inches and two feet apart, sheeting under the shingles to be Ho. 2; fencing shingles to be Star A. Star A, laid four and one half inches to the weather; cornice to be made of B box boards. The house to be sheeted throughout with dry second common boards. There are other specifications not necessary to name in regard to the windows, blinds and outside and inside doors, and in regard. to the plastering and painting, and chimneys, spouting, cistern and privy. The building to be completed by the 20th Hovember, 1881. To be finished in a plain and substantial manner.

      The appellee was to pay to appellants $1,451.17, cash in hand, on the completion of the job, and the appellee was to provide board for the workmen while engaged in the construction of the house.
    The appellants filed their petition in the circuit court to enforce a mechanic’s lien, and the petition and amended petition set forth the contract, and that the work had been fully completed according to the contract, together with the changes made at request of appellee, except ten days’ work for one man and some paint and plastering materials, and that he was ready to complete the same, but that on May 1, 1882, appellee forbade them to come upon the premises to work on the building, and so discharged them; charges that the time for the completion of the said building had been extended by appellees on account of the delays caused by the latter to comply with the contract on his part; that the work and materials done and furnished, an itemized account of which with the prices set opposite to each was attached to the bill, amounted to $1,564.53; that no part had been paid by appellee. The appellee set up in answer" by way of defense that he had not been guilty of laches on his part in not fulfilling his part of the contract, or that he had extended the time of completion of the building, or waived it, and denies he was to pay any thing for the changes on the building, or that the changes caused any extra work or expense for which he should pay.
    The appellee admits that he refused to allow appellants to complete the building because complainants had not complied with their contract in workmanship or materials, or time. The cause was referred to the master in chancery to take the proof and report the same with his conclusions to the court by Sept. 20, 1883. The master afterward reported to the court in compliance with the order in regard to the points in dispute as well as others. That in pursuance of said contract the appellants commenced the erection of the buildings; that soon thereafter the plan of the dwelling house was changed so as to materially enlarge some portions thereof, at. the suggestion of appellee, who agreed to pay appellants the-additional costs above the contract price; that appellants' continued to perform their part of the contract until the appellee, without fault on their part, prevented them from proceeding or from coming onto the premises; that the appellants were readjr to perform, but were prevented by appellee; that appellants did all they were required to do, but six days’ work for one carpenter and five days’ work for one mason, and three days’ work for one painter; that there was due appellants the sum of $1,552.33; that the master’s costs were $123.86.
    The appellants excepted to the master’s report because no interest was 'allowed by the master.
    The court, in its final, decree, found that the building was not in compliance with the terms of the contract as to workmanship and materials, and that by reason of such deviation from the terms of the original contract and specifications the appellee had suffered damages to the amount of $651.17, and that by reason thereof, appellants only were entitled to the sum of $800; set aside the master’s report and gave decree for the latter sum, and decreed that appellants pay all the costs of the suit. Trom that decree an appeal was taken to this court.
    Mr. W. 0. Simpson and Messrs. Barnes & Muir, for appellants;
    cited Taylor v. Renn, 79 Ill. 181, 185; Eyster v. Parrott, 83 Ill. 517; Vermont M. E. Church v. Brose, 104 Ill. 206; 2 Sutherland on Damages, 521.
    Mr. C. C. Strawn, for appellee.
   Lacey, J.

After a careful review of the testimony and a full consideration of that portion of it bearing on the controverted points in issue, we think the court erred in finding the issues on those points in favor of appellee; we are satisfied that the appellants' substantially complied with their part of the agreement and would have completely performed it had it not been for the refusal of appellee to allow them to proceed.

We think that the delays were caused by appellee, and that the appellants were not in fault in not completing the building within the time fixed in the contract, and hence that the appellants lost none of their rights under the contract by reason of any delays in the completion of the building.

The weight of the evidence seems to be that the materials and workmanship were as good as the contract called for. The appellee may have been somewhat disappointed with the material in not fairly understanding when the contract was made just what kind of materials and workmanship was contracted for, but it appears that the specifications in the contract required to be performed by appellants were substantially complied with.

The contract price was §1,451.17 and the work was all completed with the exception of a small amount of work and materials, and the appellants having been prevented from completing the building by appellee, they are entitled to recover the contract price, less the amount that it would take to complete the work, together with interest from May, 1882, the time when they were prevented by appellee from proceeding, the basis of the claim being in writing. Sanger et al. v. The City of Chicago, 65 Ill. 506. The amount allowed by the master appears to be the original amount and interest as near as we can determine, his finding not being itemized nor the basis of the calculation, as shown by the abstract. We do not think the claim for extras made out. The contract price and interest less the amount it would have required to finish the house would be the proper basis of recovery and was near the amount found by the master.

We think the court erred in decreeing the costs against the appellants. The rule in regard to costs governing in chancery-cases does not apply in case of proceedings under the statute to enforce a mechanic’s lien. The matter of costs in those cases is controlled by statute. Sec. 27, Chap. 82, provides as follows:

“ The costs of proceeding as between creditors claiming liens and the person against whom the lien is intended to be enforced shall abide the event of the suit, and the costs as between creditors aforesaid in contests relative to each others’ claims shall be subject to the order of the court, and the same rule shall prevail in respect to costs growing out of proceedings against and between incumbrances.”

The court having found that complainants were entitled to receive $800, the costs under this statute should have been given in their favor.

It shonld have abided the event of the suit; the suit having terminated in favor of appellants they should have recovered their costs from appellee.

For these errors committed on the part of the court below the decree is reversed and the cause remanded.

Reversed and remanded.


text:
    George H. Forbes, Adm’r, etc., v. Lillie Williams.
    Promissory note—Girt without consideration.—A suit based up'n the following instrument: “Whereas my niece, Lillie Williams, has performed for me personal services for a long period of time, for which I desire" she should receive ample compensation from my estate, and not feeling able at present to fully compensate her, I therefore and hereby acknowledge myself indebted to her in the sum of twenty-five hundred dollars with interest, but not to be due until my death, unless at my option. Delilah Deeds.” After Mrs. Deeds’ death this suit was brought. The only services the evidence showed were performed by appellee for Mrs. Deeds, and for which the note is c’aimed to have been given, were while appellee was at Mrs. Deeds’ residence, from April to October, 1875, when she was treated as a guest and member of the family, and performed no labor to speak of. Held, that the mention of services was a mere sham; that the note was a gift without consideration, and in the nature of a testamentary bequest, and that no jury will be supported by this court in finding a verdict for appellee on the evidence as set forth.
    Appeal from the Circuit Court of Jo Daviess county; the , Hon. John V. Eustace, Judge, presiding.
    Opinion filed August 20, 1884.
    Mr. Robert D. Russell, for appellant;
    cited Smith v. Nare, 13 Johns. 258; Mills v. Wyman, 3 Pick. 207; Oertel v. Schroeder, 48 Ill. 133; Gates v. Winslow, 1 Mass. 63; Story on Promissory Notes, 7th Ed. Ch. 5, § 185; Kirkpatrick v. Taylor, 43 Ill. 207; Hamor v. Moore, 8 Ohio, 239; Forbes v. Williams, 13 Bradwell, 280; Blanchard v. Williamson, 70 Ill. 647; Arnold v. Franklin, 3 Bradwell, 141; Gage v. Lewis, 68 Ill. 614; Oertel v. Schroeder, 48 Ill. 137; G. W. Ins. Co. v. Rees, 29 Ill. 272.
    Mr. M. D. Bkowrt and Mr. Jacob Fawcett, for appellee;
    that the jury are the judges of the credibility of the witnesses and the weight to be given their testimony, cited Stampofslci v. Steffins, 79 Ill. 303; Wallace v. State, 28 Ark. 531; Halloway v. Com., 11 Bush, 341; Ashlock v. Linder, 50 Ill. 169; Graff v. Simmons, 58 Ill. 440; Graves v. Colwell, 90 Ill. 612; City of Aurora v. Hillman, 90 Ill. 61.
   Lacey, J.

This suit was a claim filed in the county court, and upon being rejected by that court was appealed by appellee to the circuit court, and is based on the following instrument in writing, signed by Delilah Deeds, deceased, of whose estate the appellant is administrator, to wit:

Pleasant Valley, Ill., Oct. 25, 1875.

“ Whereas my niece, Lillie Williams, has performed for me personal service for a long period of time, for which I desire she should receive ample compensation from my estate, and not feeling able at present to fully compensate her, I therefore and hereby acknowledge myself indebted to her in the sum of twenty-five hundred dollars, with interest, but not to be due until my death, unless at my option.

“Delilah Deeds.”

This claim is the same in character as that in controversy in the cas» of the same appellant here against Mary J. Williams, reported in 13 Bradwell, 280. The two claimants are sisters, and both papers were written by Beuben Miekel, who is the main witness to support each claim. They were written at the same time and were a part of the same transaction. There is some difference in the two notes, particularly in expressing the consideration. The Mary Williams note mentions “ a loan of $'50 ” and sundry services and acts of kindness,” while the note in controversy here only expresses for consideration “ personal services.” The only witness introduced in this case besides Mickel, for (appellee, was her sister, Mary J. Williams, and the only one introduced in the other case, outside of Mickel, by Miss Mary J. Williams, was the appellee.

There are several grounds for error assigned by the appellant, and among them is that the verdict was manifestly against the weight of the evidence, and as we have concluded to sustain this assignment, we will not occupy time in the consideration of the other questions. The main question is, was there a consideration for this note? The note expresses “ personal services ” already performed as the consideration for it. But the testimony of Mickel goes to the point that services performed and to be performed, was the consideration of the note. We think that it is clearly deducible from all the evidence, that there was no consideration for the note, and that was clearly understood by appellee, Mrs. Deeds, and Mickel, at the time it was drawn up, and that all the talk about services rendered and to be rendered, and the form of the note, was simply a device of Mickel, who was the main adviser in the transaction, to try to make the note legal and binding, while it was understood by him that it would not be binding unless a valuable consideration could be shown, aud that the note was in reality a gift in the nature of a testamentary bequest. The mention of services was a mere sham.

The only service that the evidence shows was performed by the appellee for the appellant, and for which the note is claimed to have been given, was while the appellee remained at the house and residence of Mrs. Deeds, from April, 1875, to the date of the note, Oct. 15, 1875. During that whole time appellee lived and boarded with Mrs. Deeds without performing any labor to speak of, and nothing except as she pleased, and was treated throughout as one of the family and as a guest. Mrs. Deeds'was sixty-three years of age, and we are fully satisfied that whatever services were performed, it was with no expectation or intent by either party that it should be paid for, and there was certainly no express agreement to that effect.

In law, implied contracts are sudh as reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform. Blackstone, Book 2, pp. 442, 443. All the services, if any, performed by appellee prior to the giving of the note, would not pay for her hoard and lodging, and hence nnder the circumstances, reason and justice would not require Mrs. Deeds to pay her anything, nor would the law imply a debt against her. Hence there being no debt or demand, the note was a mere gift. Mrs. Deeds acknowledged by the note that she “ did not feel herself able to fully compensate ” appellee, and that therefore she postponed the debt to be paid out of her estate. When it is seen that the services were not worth a dollar over and above her board, how absurd such a statement appears. It shows that the note was drawn in such form for a purpose, and that evidently was to make it answer in place of a will. There is little dispute as to the evidence, and it is not necessary for us to consider it in detail; but these are the conclusions we arrive at after a full consideration of all of it. We therefore find that the note was a mere gift without consideration and in the nature of a testamentary bequest, and that no jury would he supported by this court in finding a verdict for appellee on the evidence. The judgment of the court below is therefore reversed.


author: Lioey, J.

text:
    William Offield, use, etc., v. Frank Siler et al.
    1. But, os "sxcBmoífS, w$tE$t sor neóísssauv.—When the record shows that the grounds of the motion, as well as the grounds of dismissal, Were that the court below had no jurisdiction, it is sufficient to bring up the decision for revision, and no bill of exceptions is necessary.

      2. Jurisdiction.—Where a suit was brought in the county court by appellant against appellees to recover damages of five hundred dollars sustained by him by reason of the killing of his sheep by appellees’ dog, and the court had jurisdiction of appellees. Held, that the court had jurisdiction of the subject-matter. The action was based on Ch. 8 of the R. S., and § 24 of that chapter gives a justice of the peace jurisdiction to a certain amount, and § 7, Ch. 87 R. S. gives the county court jurisdiction to the amount of $1,000 in all cases where a justice of the peace had jurisdiction.
    Appeal from the County Court of Will county; the Hon. Charles B. Garnsey, Judge, presiding.
    Opinion filed August 20, 1884.
    Messrs. Olin & Phelps, for appellants;
    that the county court had jurisdiction, cited H. S. Ch. 79, § 13, Ch. 8, § 24.
    Messrs. Hill & Dibell, for appellees;
    that the motion, ruling and exception are not before the court because not preserved and presented by a bill of exceptions, cited Buettner v. Horton Mfg. Co., 90 Ill. 415; Hyatt v. Brown, 82 Ill. 28; Thompson v. White, 64 Ill. 314; Horn v. Neu, 63 Ill. 539; Gaddy v. McCleave, 59 Ill. 182; Douglass v. Parker, 43 Ill. 146; Daniels v. Shields, 38 Ill. 198; Lucas v. Farrington, 21 Ill. 32; Parsons v. Evans, 17 Ill. 238.
   Lioey, J.

This suit was brought in the County Court of Will county by the appellant against the appellees, tc recover damages sustained by him by reason of the killing of lus sheep by the latter’s dog.

The declaration charged that on March 9, 1883, the appellees were the owners of a certain dog, and the appellant was the owner of 200 sheep worth $1,000, which had been farmed out to Frank Lamb to keep and use for two thirds the increase and yearly fleeces, under which Lamb was to pay to appellant one half the value of all sheep killed by dogs; and that on the 9th of March, ’83 (appellees knowing that the dog was accustomed to kill sheep) the dog killed one sheep and chased and worried the rest, and thereby caused the death of thirty more and the death of thirty lambs, prematurely dropped in consequence of said chasing, to the damage of appellant of $500.

The appellees, without pleading, entered their motion to dismiss the suit for want of jurisdiction in the county court to try the cause. Tiie court sustained the motion and dismissed the suit for want of jurisdiction, at appellant’s costs, and appeal is taken to this court, and the action of the court is assigned for error. It is urged on the part of the appellees that the question can not be raised in this court, for the reason that there was no bill of exceptions preserved showing the grounds of the motion or an exception to the ruling of the court in sustaining the motion. The appellant denies that under the facts of the ease any bill of exceptions was necessary.

We have fully examined the decisions of the Supreme Court in reference to the question, and are of the opinion that no bill of exceptions was necessary. We observe that the grounds of the motion as shown by the record as well as the grounds of dismissal were that the court had no jurisdiction. In Randolph v. Emerick, 13 Ill. 344, it was held that where the record showed the grounds of the motion and for dismissal it was sufficient to bring up the decision for revision, and that no billFof exceptions was necessary; and the correctness of this decision was recognized in Blair v. Ray et al., 103 Ill. 615; nor was it necessary that an exception be preserved by bill of exceptions if,as in this case, it was shown by the record and probably not even necessary to preserve'one at all. Zimmerman v. Cowan, 107 Ill. 637.

If, as the record discloses, the groundofthe dismissal was want of jurisdiction, there could be no extrinsic matter shown to inform the court of the fact, more than appeared from the declaration and summons. It must be that the court lacked jurisdiction, if at all, either of the person of the appellees, or of the subject-matter of the suit; and as it would be improper to dismiss the suit for want of jurisdiction of the person, it must be determined from the declaration whether the court had jurisdiction of the subject-matter; and this must necessarily have been the question upon which the court was called on to pass.

Then did the court have jurisdiction? The appellees were duly in court and the court had jurisdiction of their persons and the cause of action was based upon Chap. 8, entitled “Dogs,” R. S., and section 24 of that chapter gives a justice of the peace jurisdiction to a certain amount; and by Chap. 37 Sec. 7, R. S.,the county court is given jurisdiction to the amount of $1,000 in all cases where a justice of the peace has jurisdiction. Thus the county court had jurisdiction in this case of the subject-matter and it is not necessary to decide whether or nota justice of the peace would have jurisdiction of the subject-matter of the suit under Sec. 13 of the Justice and Constable Act.

It follows, therefore, that the court erred in dismissing the suit for want of jurisdiction. The judgment of the court is reversed and the cause remanded.

Reversed and remanded.


author: Laoev, J.

text:
    Village of Chebanse v. James McPherson.
    Police regulation op village—Prohibiting trade on Sunday.— Under paragraph 66, Article 3, Section 1, of the act in relation to cities villages and towns, which provides that the board may pass ordinances to regulate the police of the city or village, and pass and enforce all necessary ordinances, a village ordinance was passed prohibiting the ke- ping open in said village, places of business for the purpose of vending goods, wares and merchandise on Sunday, with certain exceptions named. Held, that the regulation of labor, trade'and traffic on Sunday is a part of tLe legitimate powers of a city or village, within the meaning of the act, and that the ordinance in question is valid.
    Error to the County Court of Iroquois county; the Hon. Stephen G-. Bovie, Judge, presiding.
    Opinion filed August 20, 1884.
    Mr. Tracy B. Harris and Mr. Thomas S. Sawyer, for plaintiff in error;
    cited Dillon on Municipal Corporations, §§ 329, 330.

      Mr. William Potter, for appellee;
    cited Calder Navigation Co. v. Pilling, 14 M. & W. 76; Dillon on Municipal Corporations, §§ 263, 518; City of Cairo v. Bross, 101 Ill. 475; City of Alton v. Hartford Fire Ins. Co., 72 Ill. 328; Schott v. People, 89 Ill. 195; Town of Petersburg v. Metzker, 21 Ill. 205.
   Laoev, J.

This suit was commenced by the plaintiff in error against the defendant in error in an action of debt to recover a penalty against the defendant for the violation of a certain ordinance of the village prohibiting the keeping open in the said village, places of business for the purpose of vending goods,'wares and merchandise on Sunday, with certain exceptions named in the ordinance. The declaration was in proper form, showing the passage and proper publication of the ordinance and its violation by the defendant in error, «who was engaged in the business of vending goods, wares and merchandise in said village by keeping open his place of business in said village for the purpose of vending and for vending goods, wares and merchandise therein on Sunday, and that he came within none of the exceptions provided for in the ordinance, claiming the penalty provided for in the ordinance of not less than five and hot more than fifty dollars for each offense, and amounting as declared for in the declaration to $150. The declaration was demurred to by the defendant in error, the demurrer sustained by the court, and the plaintiff in error abided its declaration; and judgment having been rendered against it for costs, the ease was brought here by writ of error and the action of the court below in sustaining the demurrer assigned for error.

The village was organized under the general incorporation law, and the power is claimed on the part of the plaintiff in error to pass the ordinance.under paragraph 66, Art. 5, Sec. 1, in the act in relation to cities, villages and towns, which provides that the board may pass ordinances to regulate the police of the city or village, and pass and enforce all necessary ordinances. It is denied on the part of the defendant in error that such statute authorizes the passage of the ordinance in question. It is claimed also that the passage of such an ordinance would not be in accordance with the general statute law cm the same subject, to wit, Sec. 261 of the Criminal Code, which prohibits the disturbance of the public peace on Sunday by labor, and the case of Richmond v. Moore, 107 Ill. 429, which decides that making and executing a contract on Sunday is not a violation of the above statute and that such contract is valid.

The question in this case hinges upon the proper construction of said paragraph 66 in the general incorporation act. If the right to pass the ordinance in question is within the proper exercise of the power conferred by that act to pass ordinances to regulate the police of the city or village, then the court below erred in sustaining the demurrer, notwithstanding the general statute on the same subject may not go so far, and only prohibits the doing of work or labor by which the public peace and quiet is disturbed. The charter in question does not provide that all the ordinances in the city or village shall conform either in their scope or penalties to the general statute law on the same subject, as the charter of Petersburg did, as seen by Town of Petersburg v. Metzker, 21 Ill. 205. And we may remark that it is not so sure that the selling generally of goods in a village in the ordinary way of carrying on business or trade, would not be held to be labor within the meaning of the general statute, though it is not necessary to decide this point here. In deciding this case we are necessarily compelled to determine the sense and meaning of the term police” as used in the portion of the general charter in question. It is not claimed nor could it be with any show of legal precedent, that the legislature of the State might not pass a law prohibiting the sale of goods on Sunday the same as the ordinance has done under the general police powers of the State legislature. . The general police power of the State legislature to pass laws for the benefit of the people and society generally is very comprehensive and is used in an enlarged sense, permitting the passage of laws for the protection of life, liberty and property, or laws for the general welfare, only limited by the provisions of the constitution; but the word has a more limited and restricted sense as used in said Par. 66, Sec. 1, Article 5 of the general incorporation act in relation to cities, towns and villages, and may be regarded as restricted to those subjects pertaining to the health, morals and good order of the people within the city, town or village. Hawthorn etal. v. The People, 109 Ill. 302; Harman v. Chicago, tiled at Ottawa, June, 1884. We think that the regulation of trade on the Sabbath certainly pertains to and affects the good order of society, at least in the opinion of the majority of the people. The Christian Sabbath in the opinion of all believers in the truths of the Christian religion is a day which God appointed to be observed as a day of rest from all secular labor or employments, and to be kept holy and consecrated to His service and worship, and is observed in commemoration of the resurrection of Christ on that day, by which the work of redemption was completed, and Sunday in this ordinance is used as synonymous with the Christian Sabbath. All people in this State, with scarcely an exception, observe the day as a day of quiet and rest. We regard the regulation of labor, trade and traffic on that day as'a part of the legitimate powers of the city or village within the meaning of the act, and therefore the village had the power to pass the ordinance, and that the ordinance in question was valid. We cite the following authorities in support of this view, which we think fully sustains the doctrine:

1 Dillon on Municipal Corporations, 600, Sec. 329, 330; St. Louis v. Cafferathe, 24 Mo. 94; State v. Cowan, 29 Mo. 330; State v. Almes, 20 Mo.214; Frolischstein v. Mobile, 40 Ala. 725; Hudson v. Georcy, R. I. 485; Specht v. The Commonwealth, 8 Penn. St. 312; Cin. v. Rice, 15 Ohio, 225; Korwitch v. Atlanta, 44 Geo. 204; City Council v. Benjamin, Strob. S. C. 508; McGovern v. Commonwealth, 2 Met. (Ky.) P. 3; State v. Welch, 36 Conn. 215.

The judgment of the county court is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Town of Whitfield v. William Horrocks.
    Dedication of road—Acceptance—Injunction —The court is of opinion that the evidence clearly establishes a dedication of the road by appellee to the public and an accep’ance of it by the town prior to the conveyance of the property to appellee’s son, and since there was at the time of trial a legally established highway, it was error for the court below not to make the injunction restraining appellee from interfering with the road perpetual as to appellee’s wife, to whom the son had conveyed the property, as well as appellee.
    Appeal from the Circuit Court of Marshall county; the lion. John Burns, Judge, presiding.
    Opinion filed August 20, 1884.
    The bill shows that there was óf record in the town clerk’s office of the town of Whitfield, an order made by the commissioners of highways of said town on the 9th day of March, 1866, laying out the road in controversy; a plat of the road is made an exhibit. That about the year 1860, the owners of the lands along the route of the road were desirous of having it defined and of record, and where not traveled on the same route since white men first came, to locate it as near the bluff as practicable.
    That within a year after the road was laid out, it was open to travel by the highway commissioners with the consent of the several owners of the land over which it passed; that no damages were assessed or claimed, or paid; that the land was donated by the several owners to the public for a highway; that the road had remained open to travel to the time of filing the bill as a highway, with some trivial changes; that such changes have been all on the land of the respondent Horrocks;, that the road had been closed upon Horrocks’ land since about the 1st day of December, 1880, to the time of the filing of the bill; that about the 1st day of February, 1879, Horrocks moved his fence in westerly, and into the east side of the road, about eight or ten feet at the point of greatest intrusion; that thereupon the commissioners of highways went to Horrocks, and it was agreed then and there by them and Horrocks that the road should remain as altered by Horrocks, and that afterward Horrocks worked said road on his land, fenced the same on both sides, leaving out the road as a lane on the route of the road, and for his work the commissioners paid him out of the road and bridge fund in their hands. That Horrocks is in possession of about fifteen acres off of the north end of the N. E. one quarter of the N. E. one quarter, and E. one half S. E. one quarter N. E., all in Section 26, T. 13, H. 9, E. 4 P. M., over which said road passes. That the road was largely traveled. About November, 1880, William Horrocks obstructed the road by building a fence across it, and had continued the obstruction to time of filing the bill, and wholly obstructed travel; that after notice to him to remove obstructions, the commissioners commenced an action against him in the name of the town, for a penalty under the statute for such obstructions, and the continuance of the same; that the suit was prosecuted, and on Nov. 23, 1880, before one Disoway, a justice of the peace of said county, a recovery was had against Horrocks for $330 penalty and $52.10 costs; that the judgment was then in force and unpaid beciuse of the pecuniary irresponsibility of Horrocks. The bill prays for an injunction, which was granted, to restrain the defendant from further obstructing the highway passing over his lands, or in any manner interfering with the use of the same by the public as a highway until the further order of court, and upon final hearing the same might be made perpetual and the road be declared a public highway. The grounds for the injunction were irreparable mischief, impecuniosity of defendants, and to save a multiplicity of suits. The amended bill shows that August 30, 1879, the defendants, .William and Frances Horrocks conveyed the land to George Horrocks, a son, and it was recorded Sept. 4, 1881, and on Jan’y 8, 1881, George conveyed the same to Frances. That those conveyances were without consideration, merely colorable and without change of possession.
    The answer denies the main allegations’.^ the bill, and states that they did not own the land in 1866, and denies former declaration. The court upon the final hearing found that there was no legally established highway as set out in the bill, and dismissed the bill as to Frances Horrocks, and assessed damages to her on the injunction bond in the sum of $110. The injunction as to William Horrocks was made perpetual; that William Horrocks pay one fourth the costs and the town the remainder.
    Mr. Feed. S. Pottee and Messrs. Mayo & Widmee, for appellant.
    Mr. Joseph E. Long and Mr. Chas. 0. Jones, for appellees;
    as to what constitutes a dedication, cited Town of Princeton v. Templeton, 71 Ill. 68; Kelley v. City of Chicago, 48 Ill. 388; Fisk v. City of Chicago, 38 Ill. 322; Rees v. City of Chicago, 38 Ill. 322; Harding v. Town of Hale, 61 Ill. 192
   Lacey, J.

We have carefully examined the evidence in the case, and think that the allegations in the bill are substantially proved. The evidence shows that there had been a traveled track across the land as far back as 1840, and in 1866 the commissioners had the road surveyed, and located the same from ten to forty rods further west, up near the foot of the bluff. In 1870 or 1871 appellee, William Horrocks, lived on the land, and built his fence very near the east line of the surveyed road, and also built a house west of it and also lots, leaving a lane for the road, and the public used the road from that time to the time it was obstructed in 1880, and worked it and expended money on it. Wm. Horrocks, prior to the conveyance to his son, worked the road at public expense, and even told the commissioners of highways that they could have the road on the line where it then was or on the surveyed line. In 1879 Wm, Horrocks and wife, Frances, conveyed the land to their son George, and in January, 1881, George conveyed the land back to his mother. In 1880 the road Was fenced up, and in Rovember, 1880, William was fined for obstructing it,

We think the evidence clearly establishes a dedication of the road by Win. Horrocks to the public, and an acceptance of it by it, prior to the conveyance to-his son George by Wm.. Horrocks, and that there ivas at the time of trial a legally established highway, and that the court below erred in not making the injunction perpetual as to Frances, as well as William Horrocks.

The decree of the circuit court is therefore reversed and the cause remanded.

Reversed and remanded.


author: Lacey J.

text:
    Comm’rs of Highways of Pre-emption v. Benjamin Whitsitt.
    1. Watercourses—Drainage.—The owner of a dominant heritage may, by ditches or drains, drain his own land into the natural channel or watercourse, even if the quantity of water thrown upon the servient heritage is increased, and it is not necessary that such watercourse should have a definite channel, usually flowing in a particular direction and discharging into some other stream or body of water; but if it be surface water flowing in a regular channel, it will be a sufficient watercourse. Peck v. Herring-ton, 109 Ill. 611. i vi
    2. Same—Can not create new channels in servient estate.— The owner of the superior estate has the right to drain his lands through any regular channel on his own land, as may be required by good husbandry, which carries the water from the upper to the lower field, although the flow of water is increased, ,but can not drain it so as to create new channels on the servient estate.
    3. Same—Draining op ponds.—When there are natural ponds, merely the collection of surface water from rain or melting snow which fall upon the land, and there is such a descending grade that by filling up the ponds with dirt, there would be a flow of water toward and onto the servient estate, such ponds for the purpose of husbandry may be drained either by tile or other drains into any natural watercourse existing on the superior estate, and caused to flow over the servient estate, though the flow of the water may be increased thereby; though it may be that the owner of the superior estate would have no right to drain a large body of water or lake upon the land of an adjoining owner, and destroy it.

      4. Road drainage.—The court is of opinion that the same rules are to b; applied to road drainage as to farm drainage. Such damages as those vomp'ained of by appellee must be regarded as having been settled in the act of granting the right of way; for the owner of lands about to grant the right of way must know that highways will be drained and improved in the manner attempted.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Opinion filed Aug. 20, 1884.
    This is a bill for injunction for the purpose of restraining the appellants from digging, excavating and establishing any ditch, drain or waterway by means of which the water could be discharged from sections 2 and 3, and the north part of 10 and 11 down upon the lands of the appellee. The bill avers that appellee was the owner of E. one half of the S. E. one quarter,'section 10, and S. W. one quarter, section 11, in T. 2, M., JR. 2, W., in Mercer county, Ill., and had been at expense in draining and erecting a water-ram; that to the north of his land in and about the village of Pre-emption and the north part of sections 10 and 11, and south part of sections 2 and 3, there was a basin or bottom where large quantities of surface water accumulated and sought an outlet through regular and natural waterways and courses, or sank away and evaporated, and large quantities sank into the ground; that the natural outlet for such water was to the north, to Black Hawk river. That the appellants, the commissioners and overseers of highways, had determined to turn the said water from its natural course north, southwardly from the village of Pre-emption, by means of drain tile underground, and turn it over upon and across the lands of appellee, to his lasting and irreparable injury and damage. That the said ditch will collect water under ground for about 180 rods; that on account of said ditch the volume to pass over the petitioner’s land will be nearly doubled. That it would be cheaper to drain the low lands to the north. That appellee had established a watering-ram for watering stock, and such increase of flow of water would injure the workings of the water-ram and render it useless for a portion of the year. The answer of the commissioners admits that surface water accumulated in the highway running southwesterly from the village of Pre-emption, but denies that the water sought an outlet through regular and natural waterways and courses to the north or in a northerly direction and that it was cheaper to drain the water to the north; and avers that the natural and proper outlet for such water is in a southerly direction, but after heavy rains or snows the surface water remains in the highway so that the road during certain seasons of the year becomes almost impassable for the public use, and that the cheapest and easiest way to drain the road is southwardly along the highway leading from Pre-emption to a natural ravine which crosses the highway where the surface water naturally flows; denying that the intended drain would receive any water from sections 2, 3 and 10 of said township and only such portion of section 11 as was in the public highway and for the sole purpose of improving the highway. That petitioner was present when they commenced the construction of the drain, and offered no objection until 80 rods of the drain had been constructed and so much of it as benefitted his farm had been completed. That the increased flow of the water would not be perceptible in amount and would not injure the water-ram. The court upon hearing found for appellee and ordered the preliminary injunction to be made perpetual, and that appellants pay the costs.
    Messrs. Parks & Pleasants, for appellants;
    cited Angell on Watercourses, 138, § 108 L; Angell on Highways, 241, 235, 245; High on Injunctions, 464, 473; City of St. Louis v. Gurno, 32 Mo. 415; White v. Yazoo, 27 Miss. 357; Flagg v. Wooster, 13 Gray, 603; Turner v. Dartmouth, 13 Allen, 291; Martin v. Riddle, 26 Penn. 417; Mellor v. Pilgrim, 7 Bradwell, 306.
    Mr. John C. Pepper, for appellee;
    that the remedy to prevent the improper diversion of surface water is by injunction, cited Hicks v. Silliman, 93 Ill. 255; Herrington v. Peck, 11 Bradwell, 63.

      As to the rights of the servient and dominant heritage: Nevins v. City of Peoria, 41 Ill. 502; Rudd v. Williams, 43 Ill. 385; Gillham v. Madison Co. R. R. Co., 49 Ill. 484; Gormley v. Sanford, 52 Ill. 158; T. W. & W. R. R. Co. v. Morrison, 71 Ill. 616; Johnson v. Rea, 12 Bradwell, 332; Mellor v. Pilgrim, 3 Bradwell, 476; Doud v. Guthrie, 11 Bradwell, 194; Herrington v. Peck, 11 Bradwell, 63.
   Lacey J.

The evidence shows that between the village of Pre-emption and the point of discharge of the tile drain, a railroad crosses the highway and drain, and that it is about eighty rods north of the mouth of the tile drain, and that the tile had been laid to a point north of the railroad before appellee made any objections or sued out the .writ of injunction. That the highway at the mouth of the tile drain on section 11 is crossed by a ravine or swail running from west, to east, and over which there is a culvert in the road where this natural watercourse passes under the highway. That about thirty rods west, and up this ravine the appellee’s water-ram is located, which is rendered useless at times when there is much water, and when it backs up this ravine from the road to the ram. The appellee guesses-the flow of water in the ravine will be increased one third by the completion of the drain, and that it will damage the working of his water-ram, which he claims cost him from four to five hundred dollars. Appellee testifies that he did not object to the tile as far as it was laid, but objected to its continuance further north.-

The evidence of the engineer shows that the length of the proposed tile drain from the place where it empties into the ravine and where the work of laying it commenced, to the upper end, is twenty-eight hundred feet; fromjtlie point of commencement north to the point of the proposed ending of it there was an up grade twenty and forty-five one hundredths feet from the surface of the ground at commencement to the surface of the ground at the upper end, and in no place was the ground higher than at the upper end. There was a regular descending grade from the upper to the lower end with some intervening higher land along the line in some places than in others, but if the surface of the land had all been.tilled up level, there would have been a regular flow of water all the way from the upper to the lower end of the drain, so that under the rule in Peck v. Herrington, 109 Ill. 611, the appellee’s land would be the servient estate to the land covered by the highway north of appellee’s. The tile was simply laid and to be laid to absorb and carry off the surface water lying in ponds along the line of the road and on the right of way and would only take off the water underground, and as the water was discharged into a natural watercourse running across the land of appellee and discharged on the right of way of the highway into such watercourse, the appellants had a right to so discharge it, and in law there could be no damage resulting to appellee, no matter how much actual damages were suffered by him by means of an increased flow of water. Peck v. Herrington, supra. But the evidence shows that the damages were insignificant at best, and the existence of any was a mere matter of speculation, even if a right of recovery had existed. We think that the preponderance of the evidence shows that the damages would have been merely nominal in case the drain had been completed as projected, and that no irreparable loss would have been sustained.

By Peck v. Herrington these rules appear to be established:

1. That the owner of a dominant heritage may, by ditches or drains, drain his own land into the natural channel or watercourse, even if the quantity of water thrown upon the servient heritage is increased; and that it is not necessary that such watercourse should have a definite channel usually flowing in a particular direction and discharging into some other stream or body of water; but if it be surface water flowing in a regular channel it will be a sufficient watercourse. 2. The owner of the superior estate has the right to drain his lands through any regular channel on his own land,'as maybe required by good husbandry, which carries the water from the upper to the lower field, although the flow of water is increased, but can not drain it so as to create new channels on the servient estate. 3. Where there are natural ponds, merely the collection of surface water from rain or melting snow which fall upon the land, and there is such a descending grade that by filling up the ponds with dirt there would be a flow of water toward and onto the servient estate, such ponds, for the purpose of husbandry, may be drained, either by tile or other drains, into any natural watercourse existing on the superior estate and caused to flow over the servient estate, though the flow of the water may be increased thereby; though it may be that the owner of the superior estate would have no right to drain a large body of water or lake npon the land of an adjoining owner and destroy it. Just how large the lake or body of water must be is not clearly defined.

If the same rule is to be applied to road drainage as to farm drainage we see no reason under these rules why the appellants did not have a right to drain a road in the manner proposed. We can see no reason why the same rule should not govern as well in the one case as the other. Certainly, road drainage is fully as important as farm drainage, and those rules as to such drainage have been established by the courts out of considerations of public policy for the public good. Such damages as those complained of by the appellee must be regarded as having been settled in the act of.granting the right of way. For the owner of lands about to grant the right of way must know that highways will be drained and improved in the manner this was attempted. a

Under the more liberal view of the law in regard to drainage in the furtherance of the interest of good agriculture, as taken by the Supreme Court in the Peck-Herrington case, than was understood by many to have been held in the Hicks-. Silliman case, 93 Ill. 255, and the Turney-Smith case, 86 Ill. 331, and other cases by analogous reasoning, applying the same principles to the facts in this case, we think that the appellee had no grounds for complaint and no basis for his prayer for injunction.

The decree of the court below is reversed and the cause remanded.

Keversed and remanded.


text:
    Ephraim Palmer et al. v. William O’Donnell.
    Draining pond—Commissioners of highways.—A was the owner of land through which a public highway passed, and his land was as to appellee’s the dominant or superior estate, and the commissioners of highways, in order to render the road good, constructed a tile drain on A’s land to drain a pond there, which formerly had been drained by ditches. The course of the water was changed, but it emptied into the same place on appellee's land ns formerly, and the flow of water over appellee’s land was not increased, and no actual damage done him by the change m the course. Held, if A had the right to drain his own land by means of this tile, so had the commissioners, and the fact that the water did not come from the same direction could make no difference to appellee.
    Appeal from the Circuit Court of La Salle county; the Hon. G-. T. Gilbert, Judge, presiding.
    Opinion filed August 20, 1884.
    Messrs. Bushnell & Fullerton, for appellants;
    cited Peck v. Herrington, 109 Ill. 611.
    Messrs. Haley & O’Donnell and Messrs. Dugan & O’Oonoe, for appellee;
    that acts done under a legal sanction, where no negligence or unskillfnlness is shown in the doing of the work, afford a right of action if injury to private property results therefrom, cited T. W. & W. Ry. Co. v. Morrison, 71 Ill. 618; Rigney v. Chicago, 102 Ill. 73.
    For every invasion of an absolute right, at least nominal damages can be had: Pfeiffer v. Grossman, 15 Ill. 53; Plumleigh v. Dawson, 1 Gilm. 544; Wood’s Mayne on Damages, 9-12.
    If the proprietor of an upper field, even in the course of the use and improvement of his farm, discharge surface water by artificial means, increased in quantity or in a manner different from the natural flow, or in an unaccustomed place, "upon the lower lands of another, to the injury of such lands, he is liable for all damage done. And the liability of a private corporation is in this respect the same as that of an individual: Washburn on Easements and Servitudes, §§353 and 356; Stout v. McAdams, 2 Scam. 67; Gillham v. Mad. Co. R. R. Co., 49 Ill. 484; Laney v. Jasper, 39 Ill. 46; I. C. R. R. Co. v. Middlesworth, 46 Ill. 500; Livingstone v. McDonald, 21 Iowa, 160.
    A city has no more power over its streets than an individual has over his own land; and it can not, under the plea of public convenience, be permitted to exercise its dominion to the injury of the adjacent property in a mode that would render a private individual liable in damages, without being itself liable: Nevins v. Peoria, 41 Ill. 502; Aurora v. Gillett, 56 Ill. 132; Aurora v. Reed, 57 Ill. 33; Jacksonville v. Lambert, 62 Ill. 519; Bloomington v. Brokaw, 77 Ill. 194; Dixon v. Baker, 65 Ill. 518; Pekin v. Brereton, 67 Ill. 477; Alton v. Hope, 68 Ill. 167; Pettingrew v. Village of Evansville, 25 Wis. 223; Tearney v. Smith, 86 Ill. 391.
   Lacey, J.

This was' an action on the case by appellee against the appellants, for breaking and entering the close of appellee. On the trial, in November, 1883, the appellee recovered a verdict and judgment against appellants for eight dollars and costs of suit. The appellants, Ephraim Palmer and David Terry, were commissioners of highways ini the territory comprising the land of appellee and of John Dobbins, another of the appellants. John Dobbins was the owner of the land through which the road passed and in which the tile drain complained of by appellee was laid, and he did the work of laying the tile under the employment of the commissioners.

The lands of Dobbins and of appellee and the road were situated as to each other as follows: appellee owned a farm bounded on the north by an east and west road known as the town line road, and bounded on the west by a north and south road. Appellant Dobbins owns eighty acres of land lying west of appellee’s land, the length of the eighty being east and west. North of this last eighty and north of this town line road, Dobbins also owns the land.

Eighty rods west of the northwest corner of appellee’s land, and about opposite the line dividing the east and west forties of Dobbins’ eighty, is Dobbins’ residence, north of the town line. West of.this house and on the northwest corner of this plat is the pond in question, lying both in the north field and in the town line road. This pond was a wet weather pond, and was created and supplied by surface water. It covered about three fourths of an acre of land, and except in high water had no drainage. It was two to three feet deep in places. This pond was formerly drained to some extent southwardly across Dobbins’ land, by means of a ditch to about the center of Dobbins’ south eighty acre tract, and then, by a continuation of the drain eastwardly to the north and south road, to appellee’s west line, and then northerly on the west line of the road to a culvert under the road, and through such culvert onto appellee’s land, and thence southeasterly, through lowground and a ditch, to Buck creek, which runs across appellee’s land northwardly and southwardly. Before the present tile drain complained of, this system of ditches was the only outlet for the pond, though of late years the ditch running southwardly from the pond had become filled up, and caused the pond to fill and back over the east and west road, rendering it at times unfit for travel.

In the spring of 1882 the appellants dug the drain conplained of, three and one half feet deep east from this northwest pond along the highway, about one third of the way to Buck eveelc, and let it empty into a ditch running across the northeast comer of Dobbins’ south eighty to the west line of the north and south road, to the west line of appellee’s land, thence down the west side of the said road to the same culvert where the water had formerly discharged onto appellee’s land through the system of ditches or drains commencing to run south from the pond drained by the tile. Hence the water was discharged onto appellee’s land at the same place that it had been accustomed to flow for a great number of years. (The map of the situation is as follows: * * *)

The testimony shows that the flow of the water over appellee’s land was not increased in any perceptible degree, and no actual damage was done him by the change of the course of the water from where it had run to the tile drain east down the road, and then across Dobbins’ land to the same place where it had formerly emptied onto appellees land.

By means of this tile the road was drained of the pond and the road rendered good and appellee not injured. From the bottom of the pond in question to Buck creek the fall was nearly seven feet. There was a natural fall from this pond along the line of the tile drain to appellee’s land, though in order to drain the pond, some slight elevations would have to be cut through. The commissioners of highways would have the same right to drain the road as Dobbins would have had to drain his land. If Dobbins would have had a right to drain his own land by means of this tile drain, so would the commissioners. Nevins v. City of Peoria, 41 Ill. 509; and see also what was said by this court in Comm’rs Pre-emption, etc., v. Whitsitt, ante, decided atthepresent term. The land of Dobbins as it was situated, including the pond in question, was, as to that of appellee, the dominant or superior estate, and that of appellee was the servient estate, and the point where the water from this pond was discharged onto appellee’s land was the usual and customary place where the water had been wont to flow on his land, and the fact that it did not come from the same direction could make no difference to him.

In the interest of good husbandry, Dobbins would have had the right to increase the original flow by means of drains, in order to drain any ponds or depressions on his land, and the appellee could not complain of such increase or recover for any damages tor it. It appears to us that the principle that should govern this case is fully settled by the case of Peek v. Herrington. 109 Ill. 611, whatever may have been thought of the law prior to the time that opinion was rendered. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


author: Pleasants, P. J.

text:
    Michael Brahm et al. v. Mary Dietsch.
    1. Strict foreclosure.—In view of the policy of our statute, strict foreclosure is exceptional, and not favored. It may he de :reed, however, in the discretion of the court, where the inteiests of both parties manifestly require it, but not otherwise.
    2. Necessary averments in bill for strict foreclosure.—Every bill for a strict foreclosure should aver that the property does not exceed in value the amount of the mortgage debt. Quaere, whether it should also aver that, notwithstanding it is of less value, the complainant is willing to take it in fu 1 satisfaction of the debt.
    3. Chancery—Evidence.—Where the record showed reference to the master to take and report proofs, proofs so taken and reported and the iv port approved, and that the cause thereupon was immediately heard upon bill and proofs taken, and the master’s report showed that the property was worth considerably more than the mortgage debt. Held, that a court can not presume from the recital in the final decree that “ the cause came on io be heard upon the bill of complaint and proofs taken,’’ that other proof on the subject of the value of the property which supported the finding was also taken. Without still other expression indicating the proofs taken, or other proofs otherwise appearing, the presumption is that only those taken and reported by the master were heard.
    4. Bill taken pro confesso—Evidence.—Upon a bill taken pro confesso, the court may find the facts averred without requiring any proof, and the defendant can not object to the finding nor to the appropriate decree thereon; but where, upon a bill so taken, the court deemed it requisite to require Ihe complainant to produce evidence to prove the allegations of her bill, and such evidence affirmatively and clearly proved that the value of the property mortgaged was more than the mortgage debt. Held, that it was error to disregard such evidence.
    5. Strict foreclosure—Time for payment.—Where, in a bill for a strict foreclosure, the decree ordered that defendants pay complainant the amount found due within one month, or, etc. Held, that the time limited for the payment was too short. The reason of the rule, in case of sale without redemption, applies with equal force to a case of strict foreclosure.
    Error to the Circuit Court of Bock Island; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed August 20, 1884.

      Messrs. Sweeney & Walker, for plaintiffs in error;
    as to what must be proved in case of a strict foreclosure, cited Farrell v. Parlier, 50 Ill. 275; Sheldon v. Patterson, 55 Ill. 513; Boyer v. Boyer, 89 Ill. 449; Rourke v. Coulton, 4 Bradwell, 271; Greenemeyer v. Deppe, 6 Bradwell, 491.
    In chancery cases it is not to be presumed that any evidence was given in the cause in the court below, except what appears in the record: Kennedy v. Merriam, 70 Ill. 231; McIntosh v. Saunders, 68 Ill. 130; Cooley v. Scarlett, 38 Ill. 316; Boyer v. Boyer, 89 Ill. 449.
    Mr. M. M. Corbett and Mr. J. T. Kenwortiiy, for defendant in error;
    as to strict foreclosure, cited Johnson v. Donnell, 15 Ill. 97; Stephens v. Bichnell, 27 Ill. 434; Hilliard on Mortgages, 4th Ed. 31; Jones on Mortgages, § 1545.
    A strict foreclosure only pays or discharges the debt pro tanto: Vansant v. Allmon, 23 Ill. 33; Jones on Mortgages, §§ 950, 1567, 1597; Hilliard on Mortgages, Ch. 36, §§ 1-10; Edgerton v. Young, 43 Ill. 464; Spencer v. Harford, 4 Wend. 381; Morgan v. Plumb, 9 Wend. 287.
    Where a decree is taken pro oonfesso, it is discretionary with the chancellor to render a decree without proofs, and the defendant can not make any objection that the proofs do not sustain the allegations of the bill: R. S. 1874, Ch. 22, § 18; Manchester v. McKee, 4 Gilm. 511; Smith v. Trimble, 27 Ill. 152; Stephens v. Bichnell, 27 Ill. 434; Harmon v. Campbell, 30 Ill. 25; Benneson v. Bill, 62 Ill. 408.
    Where an objection is urged to a decree that the evidence is insufficient to support it, and the decree does not purport to give the evidence in the record, but merely states that a hearing was' had upon the proofs and the necessary facts are found by the decree, it will bind: Preston v. Hodgen, 50 Ill. 56; Mauck v. Mauck, 54 Ill. 281; Morgan v. Corlies, 81 Ill. 72; Wright v. Troutman, 81 Ill. 374; Darst v. Thomas, 87 Ill. 222.
   Pleasants, P. J.

This was a bill filed April 27, 1883, to foreclose a mortgage executed by plaintiffs in error to one J olm Bey ser to secure a note of said Michael for §450, payable in one year with interest at eight per cent, per annum, assigned to defendant in error. The mortgaged premises are a house and lot in the city of Bock Island, and the homestead of the mortgagors, which was waived.

Besides the usual averments the bill alleges that said Michael Brahm is insolvent and unable to redeem the property, and that it is scant security for and insufficient to pay the amount due with costs of this proceeding; and prays for a strict foreclosure.

The defendants having been defaulted the cause was referred to the master “ to take proofs of complainant’s bill and state the account.”

On June 9th he filed his report, setting forth the documentary evidence and the testimony of a single witness, the mortgagee, who stated as follows: “I know the mortgaged property (describing it)—think it not worth more than $600. I have known him (defendant Michael Brahm), for six or seven years. I know about his business. I believe he is unable to redeem said premises from the mortgage to me, now assigned to complainant. In my judgment the premises are scant and meager security for said indebtedness, including the costs.” Upon the note was indorsed a credit of one year’s interest, and the amount found due was $491.70. On the same day this report was approved, the cause set for hearing instanter, and the final decree filed. It recites that the cause was heard upon the bill of complaint and proofs taken ”—finds the amount due to be as reported, and that the defendant Michael Brahm is insolvent and unable to redeem the mortgaged premises; that they are scant security for the debt and costs and that no benefit can inure to the defendants or either of them from a sale thereof, and orders that they pay complainant the amount so found due and the costs, within one month, or in default thereof be barred and foreclosed from all equity of redemption and claim of, in and to said premises, and complainant be let into possession. Defendants sued out this writ of error.

In view of the policy of our statute providing for sale under certain decrees as well as judgments and allowing the right of redemption therefrom to the debtor, his heirs, assigns and creditors—which is to make the property pay, in their interest, all it is really worth—strict foreclosure is exceptional and not favored. Still it may be decreed, in the discretion of the court, where the interests of both parties manifestly require it; but not otherwise. Johnson v. Donnell, 15 Ill. 97; Stephens v. Bicknell, 27 Ill. 434. That of the debtor includes his obligation to other creditors and subsequent purchasers. Hence where there are other incumbrancers, creditors or subsequent purchasers, this kind of decree will not be allowed Farrell v. Parlier, 50 Ill. 274; Ronoke v. Colton, 4 Bradwell, 257. So, where the property exceeds in value the amount of the mortgage debt and costs it is obvious that to take it for the debt can not be for the interest of the debtor. Hence every bill for a strict foreclosure should aver that this value does not exceed that amount. See, besides the cases supra, Sheldon v. Patterson, 55 Ill. 507, 513; Boyer v. Boyer, 89 Id. 447; Greenemeyer v. Deppe, 6 Bradwell, 490; Miller v. Davis, 5 Id. 474; Murphy v. Stith, Id. 562.

Whether it should also aver that notwithstanding it is of less value the complainant is willing to take it in full satisfaction of the debt, is perhaps not settled in this State. In Vansant v. Allmon, 23 Ill. 33, and Edgerton v. Young, 43 Id. 470, it was said that according to the weight of authority strict foreclosure in such a case operates to extinguish the debt only pro tanto. -But the precedents there referred to (for none are cited) are believed to be mainly from jurisdictions in which such decrees are not exceptional; and later cises indicate that whether it is or is not an imperative rule of equity, our courts, in the exercise of their discretion, will require him to accept it as a discharge in full. Farrell v. Parlier, Boyer v. Boyer, Miller v. Davis, Murphy v. Stith—all above cited. This works no hardship to the creditor, because the debtor is shown as part of the case, to be insolvent. We are not now called on to express a more decided opinion on this point, since there are other grounds above indicated upon which with greater confidence .we reverse this decree.

The evidence preserved in the master’s report must be held, as against the complainant, to be that the property was worth $600, which is considerably more than the debt and costs. So far as appears this is the uncontradicted testimony of her own witness, the mortgagee and her assignor.

Counsel contend that upon the recital in the final decree this court should presume, in its favor, that other proof on this subject which supports the finding was also taken. That recital is that “ the cause came on to be heard upon the bill of complaint and proofs taken; ” and it is said that since this does not refer in terms to the master’s report it ought not to be so limited. But interlocutory orders relating to this report also appear in the record, and being as much a part of it as is the final decree, should be considered in connection with i ts recital as if they also were recited in it. The record, then, shows a reference to the master to take and report proofs, proofs so taken and reported,' the report approved, and the cause thereupon immediately heard upon bill and proofs taken. Without still other expression indicating the proofs taken or other proofs otherwise appearing, the presumption is that only those taken and reported by the master were heard. Boyer v. Boyer, 89 Ill. 449.

It is further urged that upon a bill taken pro confesso the court may find the facts averred, without requiring any proof, and therefore the defendant can not object to the finding nor to the appropriate decree thereon, for insufficiency of proof. We so understand the law. Manchester v. McKee, 4 Gilm. 517; Stephens v. Bichnell, 27 Ill. 444; Boston v. Nichols, 47 Id. 357—8 and cases there cited. For that reason we have not noticed the question of the insolvency of Brahm. The fact was averred and the finding, as to that, is beyond the reach of objection. It is not unreasonable to believe an averment not denied by the party interested to deny it if untrue, although the proof offered be not of itself sufficient to establish it, notwithstanding we think the proof of it rather insufficient. But in respect to the value of the premises as compared with the amount of the debt, a different question is presented. The circuit court did not see fit to dispose of this ease upon the bill taken as confessed, but deemed it “ requisite” in the language of the statute (R. S. Chancery § 18) “to require the complainant to produce documents and witnesses to prove the allegations of her bill.”

The evidence so produced touching the allegation in question was not merely insufficient to prove it, but affirmatively and clearly disproved it; and it is unreasonable to believe an averment that is disproved, even though it be not denied by the party interested to deny it. The fact alleged being necessary to support the decree, we think it was erroneous to override or disregard the proof, and inequitable to give to complainant property of the defendant worth $600, for a debt of less than five hundred. Besides it is neither averred nor proved that there was no other creditor or purchaser having an interest subject to the mortgage.

We are also of opinion that the time limited for the payment was too short. The reason of the rule in case of sale without redemption applies with equal force to a case of strict foreclosure. Farrell v. Parlier, 50 Ill. 275.

For these errors the decree of the circuit court is reversed and the cause remanded for further proceedings in conformity herewith.

Reversed and remanded.


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    O. E. Daniels v. Albert Smith.
    Election of causes of action—Estoppel.—Where appellee, who had sold appellant some heifers, claimed that appellant had taken a Durham which he did not buy, had his election to treat the transaction as a valid sale or a wrongful conversion, and he elected to hold it a valid sale, and brought suit in assumpsit, and" appellant pleaded a tender of §175, and after the evidence was all in and the trial nearly closed plaintiff took the money tendered and dismissed the suit. Held, that appellant was estopped from bringing an action in trover for the conversion of the Durham.
    Appeal from the City Court of Elgin; the Hon. A. H. Bakrt, Judge, presiding.
    Opinion filed August 20, 1884.

      Mr. Ezra Rue and Mr. J. W. Ranstead, for appellant:
    cited Bridge Corporation v. City of Lowell, 4 Gray, 474; Herrington v. Hubbard, 1 Scam. 569, 572; Yourt v. Hopkins, 24 Ill. 326; Hooker v. Hubbard, 97 Mass. 175, 177; Sanger v. Wood, 3 John. Ch. 416, 432; Turner v. Flanigan, 1 Black, 492, 493; Brewer v. Sparrow, 7 B. & C. 310; Lythgoe v. Vernon, 5 H. & N. 180; Bigelow on Estoppel, 1st Ed. 578-586; Cooley on Torts, 1st Ed. 94.
    Mr. Frank Crosby and Mr. W. H. Wing, for appellee;
    that the voluntary dismissal was not a final determination of the case, and appellee was not thereby precluded from recovering on the sazne cause of action, cited Newznan v. Dick, 23 Ill. 338; Holmes v. C. & A. R. R. Co., 94 Ill. 439.
   Pleasants, P. J.

Appellant bought some heifers of appellee to butcher for beef. Appellee, claiming that he had taken one not bought—a Durham—and differing as to the amount due, sued him in assumpsit on the common counts. Appellant pleaded a tender of $175, in full, and brought the money into court. When the evidence was all in and the trial nearly closed, plaintiff took the money tendered and dis7 missed his suit.

Afterwards ho brought this action, in trovei’, for the convei’sion of the Dui’ham heifer; and defendant, in addition to the general issue, filed a special plea setting up the facts above stated. To this special plea a demurrer was sustained. Defendant, abiding* by the plea, went to trial on the general issue and thereunder offered evidence of the same facts; which the court excluded. A verdict was rendered for the plaintiff for $35,40; motion for new trial ovez-rnled and judgznent entered.

Appellee hei*e maintains that the plea was bad because it did not aver a final adjudication upon the issue joined in the former suit; that inasmuch as there was no such adjudication, but the suit was dismissed, he was at liberty to institute another for the same cause of action; and that in this suit the defendant received the full benefit* by credit, of the amount tendered in the former,

We think he misapprehends the situation. The special plea was not by way of traverse, nor of confession and avoidance, but of estoppel—and that not by adjudication but by the facts therein averred. Were they sufficient? When he commenced the fqrtner suit lie knew the fact, if it was a fact, that he had not sold the Durham heifer, and that defendant had taken, butchered and sold her; and presumably he knew his right, which was to affirm this sale by defendant as rightful and recover from him the money proceeds of it, or to hold it as tortious and recover the value of the animal at the time of such conversion, which might be more or less than the proceeds received. He could have his election to treat it as a valid sale or as a wrongful conversion, and make either the ground of his action. But he could not be permitted to assert both, because both could not be true; and they are no less inconsistent when asserted consecutively than when asserted concurrently. With a full knowledge of the facts he made his election to hold it a valid sale of his property, and so asserted it in the form of a solemn and deliberate action at law as the ground of his right to the proceeds. Therefore he could not then nor can he now be permitted to assert that it was not, as a ground of action for the value of the animal irrespective of the amount of the proceeds.

These causes of action are not the same. They are not even of the same nature, but as already observed, different and inconsistent. Hence the fact that the former suit was dismissed without an adjudication on its merits on the issue made, does not leave the plaintiff at liberty to maintain this. In Herrington v. Hubbard, 1 Scam. 569, the suit at law to recover the consideration paid on the contract to convey had been dismissed before the bill to enforce performance was filed; but the court held that the suit, though dismissed, was an election to treat the contract as rescinded, and this being inconsistent with the averment that it was still obligatory, the bill could not be maintained. See also Yourt xr. Hopkins, 24 Ill. 330. We also transcribe from the brief of counsel for appellant the following citations, from several of which quotations are therein made, asserting the rule to be the same and well set-tied at law and in equity: Cooley on Torts, (1st Ed.) 94; Addison on Torts, 33; Bigelow on Estoppel, (1st Ed.) 578, 581, 584 to 86; Hooker v. Hubbard, 99 Mass. 569, 572; Sanger v. Wood, 3 John’s Chy. 416,422; Turner v. Flannigan, 1 Black. 492 to 3; Brewer v. Sparrow, 7 B. and C. 310 (14 Eng. Com. L. E. 144); Lythgoe v. Vernon, 5 H. and N. 180 (29 L. J. Exch. 164). For the errors in sustaining the demurrer to the special 'plea and overruling the motion for a new trial the judgment is reversed and the canse remanded for further proceedings in conformity herewith.

Reversed and remanded.


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    Timothy Moshier v. Henry D. Shear et al.
    1. Intere.t, when recoverable.—Where a demand is in good faith disputed or nothing has been done to hinder or delay proceedings for its collection, 1 here can be no recovery of interest upon it as for an unreasonable and vexatious delay of payment, although such demand be really due. A delay of' settlement :'s not necessarily a delay of payment.
    2. Evidence.—The court is of opinion that the allowance of an alleged payment of §300 was clearly against the evidence.
    Appeal from the Circuit Court of Knox county; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed August 20, 1884.
    Messrs. Sanford & Carney, for appellant;
    as to the allowance of interest, cited Clement v. McConnel, 14 Ill. 155; Myers v. Walker, 24 Ill. 133; Sammis v. Clark, 13 Ill. 547; Hitt v. Allen, 13 Ill. 596; Thompson v. Fullinwider, 5 Bradwell, 555; Aldrich v. Dunham, 16 Ill. 403; Devine v. Edwards, 101 Ill. 142; West Chi. Al. Works v. Sheer, 104 Ill. 589.
    Messrs. McKenzie & Calkins, for appellees.
   Pleasants, P. J.

This suit was commenced by appcllmt, January 19,1882, to recover the balance claimed to be due on two promissory notes of appellees, of March 9,1861, for $400 each, at two and four years respectively, given with four others of same date and amounting in all to $3,000, for the price of land to be conveyed upon their payment according to the contract of purchase. Pleas of the general issue and set-off were filed, but during the progress of the trial the former was withdrawn. A verdict was rendered for the defendants for $236.59, and judgment entered thereon, from which plaintiff appealed.

This controversy has been twice submitted to arbitrators. The first award was set aside by agreement, and the second upon a bill filed for that purpose, after a review of the proceedings here and in the Supreme Court (102 Ill. 169). Thereupon this suit was brought.

When these six notes were given appellant held a like series of six others for the same amount, bearing date January 10, 1857, and being for the price of another tract of land then purchased.

Payments were made from time to time in money, checks, cattle, corn and other articles, for all of which appellant claims lie'gave full credit by surrender or indorsement of one or more of the notes, or by both, though some of the credits included several items and were given upon settlements had at the dates thereof respectively.

The account filed with the plea of set-off embraced all the items of payment claimed by appellees, being twenty-four in number and running from November 22, 1864, to March 9, 1867. Many of them are undisputed and fully accounted for by the surrender of notes or by indorsements on those retained. Appellees claim, however, that some are not accounted for, and the verdict is made up of such as were so found, in excess of the amount remaining due after deducting the payments credited, and interest on such excess. An instruction for defendants authorized the jury to allow such interest, for unreasonable and vexatious delay of payment, if from the evidence they should find that there was any such excess and such delay by the plaintiff in the payment thereof.

The last payment made or claimed was on March 9, 1867, when appellant credited it as being $1,986.40, while appellees say it was in fact $2,000. Previous to that time—but just when or whether later than 186'4 does not appear—five of the twelve notes had been surrendered; and this payment, as was agreed on the trial, extinguished five others according to the indorsements thereon, and reduced the aggregate amount due on the remaining two here in suit, according to the indorsements on them, to $384.45, which, with the interest thereon as reserved, would make at the time of trial, December 11, 1883, the sum of $1,028.32. It appears that the jury allowed interest at six per cent, per annum from the date of that payment; and as the time is sixteen years and nine months, it would jnst about equal the principal. They must therefore liave found that the payment exceeded the amount then remaining due to appellant by about the sum of $118.

We have been unable to discover in the record any evidence of an unreasonable and vexations delay of payment by appellant. The testimony of appellee Henry D. Shear, is certainly the strongest, if not the only evidence against him on this point, and taken by itself, we think, is insufficient to support the instruction or the finding. The utmost that it tends to show is that appellant on two or three occasions which had been appointed for a settlement, postponed it; which may have been quite vexing to appellee without being vexations on the part of appellant; and of the cireu id stances and reason which prompted it we are not informed. Nor is a delay of settlement necessarily a delay of payment. Shear says .that whei. he paid the $2/)00 he told Moshier he was satisfied he was paying hitn more than was due; hut this was evidently no more than a suspicion or gness, for he afterward says that he had no means of knowing, at any time within a year thereafter, how much he liad overpaid, because Moshier had the notes. He made the payment voluntarily, and as a payment. Moshier thought it made them so “nearly even” that he was willing to make the deed, thus enabling appellee to execute a mortgage on the land in order to get the very money he paid, and to settle as soon as should be convenient thereafter. But he never intimated an apprehension that the balance on settlement might be against him. On the contrary he always expressed a belief that something was still his due. That belief was verified by his calculation as soon as he made it, showing the balance remaining to be $384.75. He vehemently denied every item of payment claimed that had not been credited, as soon as it was made known. He made every appointment lor a settlement that was made, and once wrote to Shear for that purpose. Shear made no attempt, demand or request for it except during the first year after the payment, until 1874, a month before the first arbitration. Moshier never in any way prevented, hindered or delayed a proceeding by Shear to collect whatever he thought was due him, but gave him every facility by furnishing copies of the notes and indorsements, and rather provoked it by his own claims and denials and the manner of them, and at last became himself the actor. All this is shown by the testimony of Shear; from which it is manifest that when Moshier postponed a settlement he thought he was delaying receipt and not payment.

This is still more apparent in the light of the other evidence on this subject, to which it is unnecessary here to refer. So that on the whole there is not only no evidence tending to show him guilty of an unreasonable and vexatious delay of payment—nor a fact to impeach the good faith of his claims, denials and appointments, except the fact of postponement; hut the proof is affirmative and clear that he was not so guilty. The instruction was therefore erroneous, and the finding unsupported. Where a demand is in good faith disputed, or nothing has been done to hinder or delay proceedings for its collection, there can be no recovery of interest upon it as for an unreasonable and vexatious delay of payment, although such demand be really due. Clement v. McConnel, 14 Ill. 155; Myers v. Walker, 24 Id. 133; Aldrich v. Dunham, 16 Id. 403; Sammis v. Clark, 13 Id. 547; Hitt v. Allen, Ibid. 596; Devine v. Edwards, 101 Id. 142; West Chicago Alcohol Works v. Sheer, 104 Id. 589.

But was there anything due to appellees? As above shown the jury found there was, to about the sum of $118. It is conceded that they allowed an alleged payment of $300 as of February 21, 1865, without which a balance of nearly $200 of principal due after the payment of ^Marcli 9, 1867, must have been found the other way. We think this allowance was so clearly against the evidence that it ought not to stand.

Mo other payment between the 16th of December, 1864, and the 19tli of May following is pretended upon the evidence. David Shear, a son of appellee, testified that in February, 1865, as he thinks, but fixes no date, he paid $300 which his father had counted out and given him for that purpose, to appellant, in the road, south of town; and Josiah Multy, his uncle, stated that he was with him, and corroborated him as to the fact, but fixed the time no nearer than the latter part of February. It is shown without contradiction that between the 20th and 25th of that month, Henry D. Shear and appellant were together at the latter’s room with notes lying on the desk before them, and were talking about pasturage of some cattle for which Shear claimed pay, and about a settlement; and that he then paid appellant some money. It also appeared that on one of the notes was this indorsement: “Received February 21,1865, $400 as interest.” Moshier has no recollection of the circumstance now, but is satisfied from his indorsement that he then received that money or its equivalent. Appellee says nothing about it; though he was fully examined in chief upon all the items of his account of which he had ^knowledge, disputed and undisputed, and said he had kept memoranda of his payments in his diary, to which he constantly referred to refresh his memory. The fullness of this examination was explained on the ground that he did not know what items had been credited. He did not, then, rely on the indorsement for proof, and would have testified to this credit himself if he had known of any such payment as other and different from that made about that time by David. He has had the benefit of this credit of $400, of which he furnished no proof or explanation, upon the evidence of its indorsement. Ought he also to be allowed credit for the $300? To our minds the only reasonable inference from the testimony is that this indorsement covers the payment by David—that that payment was made before the 21st and not immediately credited because it was made on the road—while Moshier was going we know not where and to be gone we know not how long—-and afterward, on the 21st, appellee made a settlement with him, in which he was allowed some amount for pasturing and paid some amount in cash,"which, added to that paid by David, made up the $±00 then indorsed. Or, it would be easier to believe that after so many years David had forgotten and understated the amount he paid, or that Moshier on his return—■ through ignorance, forgetfulness or inadvertence—misstated it in his indorsement, than that two payments of such large sums were made on or about the same day and neither appellee, with his diary, nor anybody else should now know of but one.

It is unnecessary to speak of the testimony relating to other disputed items, and we only add that the evidence of King’s statements in the absence of appellant was improperly admitted, and the foundation for the contradiction of Severance not well laid.

For the errors above noted the judgment must be reversed and the cause remanded.

Reversed and remanded.