text:
    George W. Ridings et al., Defendants in Error, v. Thomas Hynds et al., Plaintiffs in Error.
    Gen. No. 5243.
    Negotiable instruments—defenses to accommodation paper. The nature of accommodation paper presupposes that there was no consideration given for it and no recovery can ever he had thereon by the original payee against the accommodation maker; that while the accommodation maker can impose any restrictions upon the use of such paper that he may see fit at the time it is issued, still, unless such restrictions are written upon the paper or otherwise brought to the knowledge of the transferee for value before he has purchased the paper, such restrictions constitute no defense to the paper, and the same rule with reference to fraudulent representations which do not go to the execution of the paper but only apply to the reasons which prompted the maker to lend his credit, must apply to accommodation paper which applies to other commercial paper, and unless knowledge of such fraudulent representations is brought home to the transferee before he purchases the paper, he will take it as an innocent purchaser, free from the defense of fraud.
    Bill in equity. Error to the Circuit Court of Grundy county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    J. L. O’Donnell and T. F. Donovan, for plaintiffs in error.
    Tom H. Milner and Charles F. Hanson, for defendants in error.
   Mr. Justice Willis

delivered the opinion of the court.

F. M. Ridings, who was engaged in buying and shipping live stock, had a line of credit with and became indebted to the Marengo Savings Bank of Marengo, Iowa, in the sum of $31,000. On March 31, 1903, he delivered to the bank a deed to'a section of land in North Dakota, executed by his brother, O. W. Ridings, and was allowed a credit of $7,000, and also gave the bank his four notes aggregating $25,000, which left $1,000 to his credit. He promised to give in the place of these notes, notes for an equal amount, secured by other members of his family, and on April 4, 1903, gave his notes for $5,000 each, two of them signed by F. M. and Gr. W. Ridings and three by Gr. W. and F. M. Ridings, and took up the first four notes. These last five notes were taken up by five notes for $5,000 each, executed and delivered to the bank October 22, 1903, one signed by F. M. Ridings and Gr. W. Ridings, one by Gr. W. and F. M. Ridings, one by Gr. W., F. M. and Anne Ridings, one by F. M., Gr. W. and Anne Eidings, and one by Anne, F. M. and Gr. W. Eidings. On March 29, 1904, these last notes were renewed by giving five notes of $5,000 each, two of which were signed by G. W. Eidings and three by Anne Hidings, all payable to the order of F. M. Hidings and secured by a trust deed on a farm of 160 acres in Grundy county, Illinois, owned by Anne Eidings, valued at from $175 to $180 per acre, on which there was a prior mortgage of $4,800. This trust deed was acknowledged March 12, 1904, and on that day filed for record in said county by G. W. Hidings, and the same day, with the notes, taken by him to the Marengo Sav- . ings Bank. On March 15, 1904, the notes were endorsed and the trust deed assigned by F. M. Eidings to the Marengo Savings Bank. The notes were payable five years after date with interest at three per cent per annum, and the trust deed contained a clause providing that there should be no forfeiture for nonpayment of interest until the maturity of the notes.About December 6, 1906, the bank sold the notes and assigned the trust deed to Thomas Hynds and Douglas J. Hynds, brothers, for $12,000 cash, and gave the assignees of the notes a written guaranty that they were acquired by the bank for a full and valuable consideration, no part of which had been paid. December 23, 1906, Anne Hidings died testate, leaving surviving five sons and two daughters, and on March 7, 1907, her will was admitted to probate, and George W. Eidings and Alice B. Eidings, now Alice B. Quigley, two of her children, qualified as executors thereof.) In February, 1908, one of the notes signed by Anne Eidings was filed against her estate by Hynds Brothers and judgment was entered thereon by the County Court of Grundy county July 13,1908, from which the executors appealed to the Circuit Court of said county.

On July 1, 1905, the executors, with other children of Anne'Hidings, filed a bill in equity in the Circuit Court of Grundy county against the Marengo Savings Bank, Thomas Hynds, Douglas J. Hynds, Frank W. Eidings and George Eidings. William A. Hidings was later made a defendant. The bill admitted the execution and delivery of the notes and trust deed by Anne Ridings to Frank M. Ridings and alleged that it purported to be given to secure the payment of five notes dated March 10, 1904, each for the sum of $5,000; and also alleged that the assignment of the notes and trust deed to the Marengo Savings Bank was made for the purpose of enabling the said bank to increase its apparent assets in order to. pass inspection by the banking authorities of the State of Iowa; that it was falsely represented to Anne Ridings by Frank M. Ridings and the officials of said bank that the notes and trust deed were to be used for a temporary purpose and then surrendered to her and canceled; that the real purpose for which they were to be used was not disclosed to her; that the purpose was known only to Frank M. Ridings and the officers of said bank; that at the time the notes and trust deed were executed, Anne Ridings was not indebted to Frank M. Ridings or to the bank in any sum; that it was agreed between the officers of the bank and Frank M. Ridings that said bank should retain said notes and trust deed until after inspection of its assets and liabilities by the bank authorities of the State of Iowa; that it was further agreed by the officers o.f the said bank that they woiild cancel and return said trust deed and notes to the said Frank M. Ridings as soon as said inspection should be made, but that said agreement was never made known to the said Anne Ridings and that she had no knowledge of it; that said bank, by a pretended assignment, delivered said trust deed and notes to Thomas Hynds and Douglas J. Hynds, who had full knowledge and notice of the purposes for which they were obtained; and further averred that Anne Ridings never received any consideration for said trust deed and notes from Frank M. Ridings or from said bank or from any other person. The bill prayed that the notes be canceled and surrendered and the trust deed canceled, surrendered and released of record. Thomas Hynds and Douglas J. Hynds answered the bill admitting the execution of the trust deed by Anne Ridings; that it was given to secure the notes described therein, and the assignment thereof by the bank to them; and denied that said assignment was pretended, or that said notes and trust deed were assigned to the bank for the purpose of enabling said bank successfully to pass inspection; and averred that they only increased the assets of said bank; and denied that it was falsely represented to Anne Ridings by Frank M. Ridings and the bank officials that said notes and trust deed were to be used for a temporary purpose and in thirty days to be surrendered to her and canceled; and denied that the real purpose for which said trust deed and notes were to be used was not disclosed to the said Anne Ridings and was known only to Frank M. Ridings and the bank officials; and averred that said notes and trust deed were procured, executed and delivered for the sole purpose of securing a bona fide indebtedness and that at the time of the execution of said trust deed, Anne Ridings was indebted to said bank in the sum of at least $15,000, George W. Ridings in the sum of $10,000 and F. M. Ridings in the sum of more than $25,000; and that his indebtedness was the same indebtedness due from Anne Ridings and George W. Ridings; and denied that, at the time of the assignment of said trust deed and notes by Frank M. Ridings to the bank, it was agreed between the bank officials and Frank M. Ridings that the bank should retain said trust deed and notes until after the inspection of the assets and liabilities of said bank by the bank authorities of the State of Iowa, and that as soon as such inspection should be made the officials would determine and cancel said trust deed and notes. The bank answered the bill and alleged that at the time of the execution of the notes and trust deed, Anne Ridings, F. M. Ridings and George W. Ridings were indebted to the bank in the sum of $25,000, of which sum Anne Ridings was indebted for $15,000, which indebtedness was evidenced by said notes, secured by said trust deed; and denied that it held the trust deed and notes otherwise than as security for a bona fide indebtedness, and denied that it agreed to deliver up and cancel said notes and trust deed after it had exhibited the same to the bank authorities of Iowa. It was stipulated that the suit on the note against the estate of Anne Eidings pending in the Circuit Court might be consolidated and tried with the chancery case, and that the evidence introduced on either case might be considered as offered in the other case, and as competent and relative thereto. Upon the hearing, complainants obtained leave to, and amended the bill, by setting up that Hynds Brothers paid $12,-000 for these notes and trust deed, and averred that they were ready and willing to pay Hynds Brothers that sum with interest at five per cent from December 5,1906, until paid; and asked that upon payment of the same, the five notes be canceled and the trust deed set aside. The court found in favor of complainants and ordered that they pay Hynds Brothers, within one hundred and thirty days, $12,000, with interest at the rate of five per cent, and upon payment of the same, the trust deed and the three notes executed by Anne Eidings be null and void, and that, the interest of Frank M. Eidings and George W. Eidings in the estate of Anne Eidings be used in liquidation of the $12,000 and interest thereon. Thomas Hynds and Douglas J. Hynds sued out this writ of error to review the decree.

The theory' of the bill as amended seems to be, that the notes in question were issued by Anne Eidings without a consideration moving to her and delivered to her son, Frank M. Eidings, as accommodation paper with the understanding that they were to be used by him in dealing with the bank temporarily, and that certain restrictions as to the use of the notes in future were imposed; but it is not claimed that such restrictions were written into the notes or stipulated for in the trust deed. The proof utterly fails to show that plaintiff in error had any knowledge that there were any restrictions claimed when they purchased the notes and took the assignment of the trust deed. It is true that Frank M. Hidings testified that the notes and trust deed were made and delivered to the bank to help the bank deceive the bank authorities or to help the bank evade the law, but he did not deny that he owed the bank at least that amount of money when the notes were made, and in a letter written to the bank July 22, 1905, he expressly admitted an indebtedness of $25,000, and would not deny on the trial that he owed them $50,000 in the fall of 1904. He also attempted to convey the idea that there was an arrangement between Anne Hidings and Henderson, the cashier of the bank, by which the notes and trust deed were to be returned to her within thirty or sixty days, or as soon as he could sell some cattle, and that Henderson made a statement to that effect to Anne Hidings. On July 22, 1905, he addressed a letter to the bank that read in part: “You do not seem to be aware of the fact that at the time this instrument was given on my mother’s farm to secure some of my indebtedness it was clearly and distinctly understood as one of the conditions of this security that not until the expiration of the five years was she in no way to be molested in this matter of principal or interest and further I was to pay the interest as nearly as possible when due, but was to be allowed an additional time even on the interest if I so desired.” George W. Hidings testified that Henderson told Anne Hidings that anything she might give would be held as a temporary paper and would be returned; and that as Frank sold his cattle there would be no difficulty in his paying any overdraft he might have; but his examination disclosed that this conversation was had when the earlier notes were made which the notes in controversy were given to take up. He also wrote a letter to Henderson and the bank at variance with his statements as a witness. Taking into consideration the pecuniary interest of Frank M. and George W. Hidings, the' apparently irreconcilable difference between their verbal testimony and the statements in their letters written before a law suit was contemplated, we are of the opinion that defendants in error’s proof fails to establish the averments of the bill that the bank obtained the notes and trust deed by reason of deception practiced upon Anne Eidings. Again, George W. Eidings testified on direct-examination and reiterated the statement on cross-examination, that Henderson, the representative of the bank, told Anne Hidings before she executed the notes preceding the notes in controversy that they were to be used to make the bank authorities think the bank was in better condition than it really was, to satisfy them. We seriously doubt the truth of this statement attributed to Henderson, but if such statement were made to Anne Eidings and she executed the notes for the unlawful purpose of aiding Frank M. Hidings and the bank officials in deceiving the bank authorities of the state of Iowa, she nor her estate will not be discharged from liability when the notes appear in the hands of innocent purchasers for value.

The amendment to the bill and the offer to pay plaintiffs in error the amount paid for the notes with interest, seems to suggest that the theory of defendants in error was that the notes were accommodation paper and that Anne Eidings was the accommodation maker, and that the transferee of accommodation paper can recover only the amount paid for the notes. It is difficult to see how Anne Eidings can be an accommodation maker of the notes signed by George Eidings alone, and secured by the trust deed. But from the view we take of the law applicable to the facts appearing in this record, it is not necessary to consider this last suggestion, but assuming that she was an accommodation maker, there are no restrictions as to their use written on their face or in the trust deed, and no proof of notice of any restrictions as to their use, or any preponderance of proof of fraudulent representations made to Anne Eidings at the time the notes and trust deed were signed. In Naef v. Potter, 226 Ill. 628, it was said that the nature of accommodation paper presupposes that there was no consideration given for it and no recovery can ever he had thereon by the original payee against the accommodation maker; that while the accommodation maker can impose any restrictions upon the use of such paper that he may see fit at the time it is issued, still, unless such restrictions are written upon the paper or otherwise brought to the knowledge of the transferee for value before he has purchased the paper, such restrictions constitute no defense to the paper, and the same rule with reference to fraudulent representations which do not go to the execution of the paper but apply only to the reasons which prompted the maker to lend his credit, must apply to accommodation paper which applies to other commercial paper, and unless knowledge of such fraudulent representations is brought home to the transferee before he purchases the paper, he will take it as an innocent purchaser, free from the defense of fraud. “A note, tainted with fraud or other infirmity, passing into the hands of an innocent purchaser, not chargeable with notice, and for a valuable consideration, he acquires it purged of the defense.” Woodworth v. Huntoon, 40 Ill. 131. When a promissory note has been assigned, the presumption will be indulged that it was for value and bona fide. Persons questioning the fairness of the transaction, to defeat the assignment must prove that it was not for value or that it was made for a fraudulent purpose. Wightman v. Hart, 37 Ill. 123; Keenan v. Blue, 240 Ill. 177.

The proof is clear that Anne Hidings gave her notes and the trust deed to secure money owing the bank; and that the bank received these five notes in place of other notes, and sold them to plaintiffs in error in due course of business. The evidence shows that plaintiffs in error, Hynds Brothers, paid considerably less than their face value, but they had over two years to run and bore only three per cent interest, and the trust deed was so worded that it could not be foreclosed in default of the payment of interest until the maturity of the notes, and they might have to protect themselves against the prior incumbrance of $4,800 with the interest accruing thereon, and pay the taxes and make necessary repairs. As Anne Eidings did not write into the notes or trust deed any conditions or limitations of her liability, Hynds Brothers as transferees are entitled to recover the face value thereof.

The decree is reversed and the cause remanded and the Circuit Court is directed to enter judgment for the amount of the principal and interest due on the note in the cause there pending on appeal from the County Court, and that the bill in the chancery case be dismissed for want of equity at the costs of complainants.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    James W. Myers, Plaintiff in Error, v. Martha Ruddy, Executrix, Defendant in Error.
    Gen. No. 5247.
    1. Interest—when recoverable under provision respecting money due on written instruments. Liability accruing by virtue of a lease is a liability which carries interest under the statute providing for the collection of interest on written instruments.
    2. Landlord and tenant—“assessments” contained in lease providing for payment by latter construed. A provision which obligates
    a lessee to pay such charges against the demised premises as taxes and assessments does not include special assessments.
    3. Landlord and tenant—when latter cannot remove improvements. If a lessee retains by the lease a right to remove improvements provided he has observed the covenants of his lease, the observance of such covenants is a condition precedent to his right to remove such improvements.
    Contested claim in court of probate. Error to the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    Hopkirs, Peppers & Hopkirs, for plaintiff in error.
    Baymord & Newhall, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

On December 21, 1881, James W. Myers, plaintiff in error, leased lot six, block eight, Newberry’s addition to Chicago to James and Watson Buddy from the 1st of March, 1882, to the 1st of March, 1902. The lease was in writing and contained a provision that in addition to the annual rental agreed upon, the lessees should pay all water rates and taxes and assessments levied or assessed upon the demised premises including the taxes and asesssments of 1881, and if such water rates, taxes and assessments were not paid, the amount thereof should be considered as so much additional rent. The lessees did not pay the taxes for the years 1899, 1900 and 1901, nor a special assessment for grading, curbing and paving the street in front of the premises, and the premises were sold to satisfy the judgment. Myers paid the delinquent taxes, redeemed the demised premises from the special assessment sale, and filed a claim against the estate of James Buddy, deceased, in the Probate Court of Kane county, for the full amount of the taxes and special'assessments, including penalties and costs, and obtained a judgment for $571.29. From this judgment Martha Buddy, defendant in error, executrix of the estate of James Buddy, prosecuted an appeal to the Circuit Court of said county, and on a trial before the court without a jury, Myers obtained a judgment for' $559.89, the amount of the delinquent taxes and special assessment, not including interest, penalties and costs. He sued out this writ of error to review the record, and assigned as error the refusal of the court to allow interest on the several amounts. The executrix of Buddy’s estate, by leave ,of this court, assigned cross errors as follows: that the court erred in allowing the amount of the special assessment, $201.29, and in entering judgment for costs; and that the judgment was contrary to law and the evidence.

By the terms of the lease, the lessees contracted to pay the taxes. In consequence of their failure so to do, they were paid by plaintiff in error for the years 1899, 1900 and 1901, and the amount so paid under the terms of the lease, then became liquidated as rent; and under section 2, chapter 74 of our statute providing for the collection of interest on instruments in writing, and the authority of Walker v. Hadduck, 14 Ill. 399, and Heissler v. Stose, 131 Ill. 393, we entertain no doubt that plaintiff in error was entitled to recover interest on the amount paid for taxes in consequence of the default of the lessees.

In construing the terms of the lease, in order to give effect to the intent of the parties signing it, it is necessary to ascertain the sense of the words used; and in our opinion, in allowing the amount paid by plaintiff in error to redeem the premises from the sale for the special assessment, the court misconstrued the word “assessments” used in the lease.' In City of Chicago v. Fishburn, 189 Ill. 367, it was said: “The meaning of the term ‘assessment’ in connection with taxation is well understood. It is an official valuation of property for the purpose of fixing the proportion of taxes which each one shall pay. Judge Cooley in his work on the law of Taxation (page 258), defines it as follows: ‘An assessment, strictly speaking, is an official estimate of the sums which are to constitute the basis of an apportionment of a tax between the individual subjects of taxation within the district. As the word is more commonly employed, an assessment consists in the two processes of listing the person’s property, etc., to be taxed, and of estimating the sums which are to be the guide in an apportionment of the tax between them.’ ” “There is a clear and manifest distinction between a tax and a special assessment. A tax is imposed for a general or public purpose. It is levied for the purpose of carrying on the government. It is a charge on lands and other property which lessens their value, and in the proportion in which the owner is required to pay is his pecuniary ability diminished. This is the sense' in which the term ‘taxation’ is used and understood.” De Clercq v. Barber Paving Co., 167 Ill. 215. The word “assessment” frequently appears in the revenue act and we are of the opinion that it does not enlarge the scope or extent of the meaning of the word “taxation” as defined in the above case. On the other hand a special assessment contains none of the distinctive features of a tax. It is, as the same indicates, levied for a special purpose and not for a' general purpose. “It is not a charge on an estate which reduces its value.” The assessment is made on the ratio of advantages accruing to the property in consequence of the improvement. In no case can the assessment exceed the advantage accruing to the property assessed. It is therefore regarded hut an equivalent or compensation for the increased value the property will derive from the improvement which the assessment is levied to discharge. City of Chicago v. Baptist Theological Union, 115 Ill. 245. In County of McLean v. City of Bloomington, 106 Ill. 209, it was held there was a distinction between taxation and special assessments—that an exemption from taxation was not exemption from special assessments. Cooley on Taxation, 1st ed., 146,147. “Indeed, the distinction between a tax and a special assessment is so well. understood that the law may be regarded as well set-tied that an agreement on the part of a lessee to pay the taxes on the demised property would not include a special assessment. When, therefore, the parties, in making this lease, used the word ‘taxes,’ it will be presumed they intended it should have the same meaning which has been placed upon it by the courts.” De Clercq v. Barber Paving Co., supra.

To hold in this case that the word “assessments” appearing in this lease was intended to include special assessments levied for the benefit of the property, would be to hold that the parties intended that the lessees should pay for all the increase in value of the demised premises made by way of special assessment during the term of the lease, which would be unreasonable.

The lease contained provision that if its covenants were observed, the improvements put upon the premises should belong to the lessees at its expiration, removable at their cost within sixty days after the expiration of the lease. Defendant in error contends that it was the duty of plaintiff in error under the terms of the lease to sell such improvements for the unpaid rent and general taxes and pay the surplus, if any, to defendant in error, and that she should be permitted to set-off the value of the improvements against the claim. Plaintiff in error replies that the failure of the lessees to pay the taxes and assessments as stipulated for in the lease, was such a failure to fulfil its covenants as to bar defendant in error from the right to recover the value of the improvements. There is proof in the record that there were improvements of certain value on the premises, but no proof that they' were placed there by the lessees; nor was there any provision in the lease that would compel the landlord to sell the improvements, deduct the rent and taxes for the money received therefor, and account to the lessees for the surplus. It does not appear that any effort was made by the lessees or their representatives to remove the improvements, or that they ever asked permission to remove them and were refused. Moreover, they had no right to do so until they had complied with the provisions of the lease in full; and as they have not yet done so, such right has not yet accrued to them. We hold that defendant in error has no set-off for the value of the improvements against this claim, and we are not called upon to decide whether a recovery can be had of the difference between the value of the improvements and the amount of the delinquent taxes and interest. That right, if any exists, must be enforced in some other action.

The court erred in refusing to enter judgment for interest on the amount paid for taxes and in awarding judgment for the amount of the special assessment.

The judgment is reversed and the cause remanded. Bach party will be adjudged to pay one-half of the costs in this court.

Reversed and remanded.


text:
    Arthur Keithley, Appellant, v. Interstate Bank & Trust Company, Appellee.
    Gen. No. 5252.
    1. Foreclosure—scope and nature of deficiency decree. A deficiency decree is a money judgment as completely as a judgment at law for the recovery of a sum of money, and an execution issued thereon has the same force and effect as an execution to recover a money judgment in an action at law.
    2. Foreclosure—effect of redemption 6y judgment creditor. A redemption does not obliterate the prior sale; it simply substitutes the party redeeming for the original purchaser and gives to the party redeeming all that the original purchaser had.
    3. Foreclosure—what creditors may redeem. A complainant in a foreclosure proceeding who has become the owner of a deficiency decree in this State has a right to redeem irrespective of the fact that such a decree may not constitute a lien against the property foreclosed, and if pursuant to redemption undertaken under such deficiency decree a sale is made which results in the obtaining of a sum of money to pay such deficiency decree the money so received by the sheriff is properly paid to the owner of such deficiency decree rather than to another judgment creditor.

      Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Arthur Keithley, for appellant.
    Jack, Irwin, Jack & Miles, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Mrs. Mae Elizabeth Dutch, joined by her husband, executed a trust deed upon real estate owned by her, securing a debt of herself and her husband to the Interstate Bank & Trust Company, appellee herein, and later a second trust deed on the same premises to secure a debt to Arthur Keithley, appellant herein, and still later another trust deed on the same premises to secure another debt to appellee. Appellee after-wards brought suit to foreclose its said securities, making Mrs. Dutch and her husband and appellant and others defendants, and had a decree for the foreclosure of said mortgages and the sale of said premises, which decree provided that after payment of costs, the master, out of the proceeds of said sale, should pay, first, the debt secured by appellee’s first trust deed; second, the debt to appellant; and third, the debt secured by appellee’s last trust deed; and that if the amount realized at the sale should be insufficient to pay the several amounts due appellee, it should be entitled to a deficiency decree therefor. Under that decree the master sold the premises on July 10, 1907. The sale satisfied the amount due appellee under its first trust deed and paid a part of the sum found due appellant under the second trust deed. The property was' purchased by Edgar A. Strause. The sále was confirmed on September 11, 1907, and appellee then had a deficiency decree against Mrs. Dutch and her husband, the terms of which were that appellee have and recover from the said defendants, Mae Elizabeth Dutch and Charles C. Dutch, $2,686.92, “and that complainants have execution therefor as upon a judgment at common law.” The twelve months which the statute gave to the owner of the equity of redemption expired on July 10, 1908, and she did not redeem. The statute then gave judgment creditors three months in which to redeem from said sale, which time expired on October 10, 1908. On August 15, 1908, appellee sued out an execution on its deficiency decree, paid to the sheriff the amount required to redeem from the master’s sale (which redemption money Edgar A. Strause accepted), and caused the execution to be levied upon said real estate. On September 4, 1908, appellant recovered two judgments by confession, one against Mae Elizabeth Dutch and her husband, and the other against the same parties and one other party. It seems to be conceded that one of those judgments, at least, was for the same indebtedness secured by appellant’s second trust deed above described. On September 12, 1908, appellant sued out executions upon said judgments and placed them in the hands of the sheriff, who already held appellee’s execution under its deficiency decree. On October 30, 1908, after the expiration of the fifteen months, the premises were sold to Flora D. Strause under appellee’s execution for a sum sufficient to pay the redemption money deposited with the sheriff and nearly all of appellee’s deficiency decree, so that appellee’s execution was returned satisfied. Appellant notified the sheriff to apply the money upon his executions instead of appellee’s execution, and notified appellee that the money received by the sheriff at said execution sale belonged to appellant upon his executions, and notified appellee not to receive the money from the sheriff. The sheriff paid the money to appellee. Thereupon appellant' brought this suit against appellee and sought to recover from appellee under the common counts in assumpsit so much of the money realized upon appellee’s execution as would have satisfied appellant’s executions if it had been applied thereon. Appellee filed the general issue, a jury was waived, the cause was tried, and there was a finding and a judgment for appellee. This is an appeal by plaintiff below from that judgment. Appellant contends that the deficiency decree was a part of the decree of foreclosure and was satisfied by the master’s sale, that the execution after-wards issued for the deficiency was void, that appellee had no right to redeem because of said deficiency decree and execution, that the redemption was purely voluntary and that Edgar A. Strause was not compelled to accept it, but, as he did accept it, the title to the property was restored to Mrs. Dutch, free from all the trust deeds and from the deficiency decree; that the executions in favor of appellant were the only executions upon which said real estate could be lawfully sold, and that the money arising from the sheriff’s sale should have been applied in satisfaction of appellant’s executions.

The provision in the decree of foreclosure, that if the sale did not satisfy appellee’s liens, it would be entitled to a deficiency decree was not itself a deficiency decree. Cotes v. Bennett, 84 Ill. App. 33, and 183 Ill. 82; Thomson v. Black, 208 Ill. 229. The deficiency decree, which was rendered at a later term, on September 11, 1907, against Mrs. Dutch and her husband for a specific sum of money with an order for an execution as at common law, was such a money decree or judgment as is authorized by section 16 of chapter 95 of the Bevised Statutes, entitled Mortgages. That section authorizes an execution for the collection of the balance found due the complainant in a foreclosure suit with the same effect as when the decree is solely for the payment of money. This was therefore a money judgment as completely as a judgment at law for the recovery of a sum of money, and the execution issued thereon had the same force and effect as an execution to recover a money judgment in an action at law. Section 18 of chapter 77 of the Bevised Statutes, concerning Judgments, Decrees and Executions, authorizes the owner of the equity of redemption to redeem within twelve months from such sale under an execution or decree and, upon such redemption, the sale becomes null and void. Ho redemption was here made under that section. Section 20 of the same act provides that if such a redemption is not made within twelve months, then after the expiration of twelve months and within fifteen months after the sale any decree or judgment creditor may redeem the premises in the manner there described, which method was pursued by appellee in this case. A redemption under said section 20 does not restore the owner of the equity of redemption to his title. That is already gone. In this case, if no redemption had been made, Edgar A. Strause would have obtained a deed at the end of fifteen months and would have become the owner of the property. As said of a redemption under section 20 in Herdman v. Cooper, 138 Ill. 583: “The redemption does not obliterate the prior sale—it simply substitutes the party redeeming for the original purchaser and gives to the party redeeming all that the original purchaser had.” Smith v. Mace, 137 Ill. 68.

It is said that appellee could not redeem from its own sale, and some authorities so hold, and notably Hervey v. Krost, 116 Ind. 268, and Horn v. Bank, 125 Ind. 381. That decision, however, was under a statute enacted in 1881, and prior to 1881 such a redemption as this was held authorized in Indiana in Green v. Doane, 57 Ind. 186, and other cases. 2 Freeman on Executions, section 317, shows that in most states this right of redemption is given only to creditors who have a lien upon the premises sought to be redeemed and that the rule that a creditor cannot redeem from his own sale is applied to cases where the lien has been exhausted by the sale' and the creditor has no further or other lien, and that where the deficiency results in a new and independent judgment the original sale does not destroy the right to redeem under the new deficiency judgment. In this state the junior judgment, which is used to make redemption, need not be a fien upon the property to be redeemed, for in the redemption it is the lien of the senior judgment that is enforced. Smith v. Mace, supra. In Tewalt v. Irwin, 164 Ill. 592, one Lagow, the owner of a note secured by a mortgage, foreclosed the mortgage and the premises were sold and were not redeemed within twelve months. Afterwards a claim was allowed in the Probate Court in favor of Lagow against the estate of the mortgagor who was then deceased. He assigned this claim to his attorney who sued out a special execution, deposited with the sheriff the amount necessary to redeem from the foreclosure sale, levied on the land and bought it in at execution sale and obtained a deed. It was argued that this assignment to the attorney and the redemption by him were in the interest of Lagow, and that Lagow could not redeem. It was held that Lagow was a judgment creditor, and he should not be placed in a more unfavorable position than other creditors. The court said: “A creditor may have several liens affected with different rights of priority, but he does not lose rights under a junior lien because of his ownership of a superior one. The redemption resulted in a sale at an enhanced price, which inured to the benefit of Tewalt’s estate, and we see no objection to it.” If we hold that appellee could not redeem in this case, we must by construction restrict the force and effect of this deficiency decree, which is in its terms a straight money judgment against persons over whom the court had jurisdiction and which by force of the language of the deficiency decree and of the statute authorizing it should have the full force and effect of an ordinary money judgment. The redemption is permitted to appellee, not because its deficiency decree is a lien upon these premises, but because it is a judgment creditor, and the statute permits any judgment creditor to redeem after the expiration of twelve months without redemption, and thus to acquire an enforcement in its favor of the lien of the senior judgment or decree. Smith v. Mace, supra, and authorities there cited. Our conclusion is that under the statutes of this state the redemption was valid, and that the sheriff could not do otherwise than pay the money to appellee, and that it is not necessary to consider whether if the law were as appellant contends, he could recover the money from appellee under the common counts in assumpsit, after the latter had received it from the sheriff under a claim of right.

Appellant could have protected himself by bidding at the master’s sale a sum sufficient to pay his debt in the order of distribution established. He could have redeemed from the execution sale under appellee’s deficiency decree. He chose to let appellee pay the large sum of money required to redeem from the original foreclosure sale and to rest his rights upon the position that that redemption was by a volunteer and was in effect a donation to him. That position being untenable, we are of opinion that his suit must fail.

Affirmed.


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    The People of the State of Illinois, Appellant, v. W. J. Helmel et al., Appellees.
    Gen. No. 5258.
    1. Quo wabkanto—power of court to grant or refuse leave to file information. The granting or refusing leave to file an information in the nature of a quo warranto rests in the sound legal discretion of the court acting upon the application therefor.
    2. Ordinances—when repeal by implication results. If two ordinances are inconsistent and cannot be reconciled and both given effect, the later ordinance operates as a repeal of the earlier one.
    3. Dbam-shops—section 5 of act construed. Section 5 of the Dram-shop Act does not require a person licensed to run a dram-shop to be a freeholder.
    4. Dbam-shops—what does not invalidate license. A license to conduct a dram-shop is not invalidated by the fact that other parties are interested in the business of such licensee.

      Quo warranto. Appeal from the Circuit Court of Rock Island county; the Hon. William H. G-est, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Statement by the Court. The state’s attorney of Rock Island county, on the information of F. Q. Johnson presented to the Circuit Court of said county during the May term, 1909, a petition in the name of the people asking leave to file an information in the nature of a quo warranto against W. J. Helmel, Max D. Rosenfield, Charles Vandegenachte and the United Breweries Company.
    The proposed information alleged that the respondents without legal license had conducted for the twelve days last prior thereto, and still did conduct, a dram-shop at No. 624 Fifth avenue, in the city of Moline, in said county, and that they usurped the right contrary to law.
    The relator’s affidavit set up section 1, chapter XX of the Revised Ordinances of Moline passed and approved November 7, 1892, and an ordinance passed and approved June 2,1902, amending said section, and also an ordinance passed March 23, 1908, approved March 30, 1908, amending said section, and alleged that from the date of the passage of the ordinance of November 7, 1892, to May 3, 1909, the date of issuing of the pretended license, no saloon had been kept or licensed to be kept at 624 Fourth avenue; and that no building was used for saloon purposes or license granted for the same in the block where said building was located; that on May 3, 1909, the mayor of said city issued to respondent Helmel a pretended license to keep a saloon at 624 Fourth avenue, since which time he and the other respondents had kept á saloon at said number; that Helmel was an agent of the Breweries Company and not a resident of the state of Illinois; that Vandegenachte was an agent and employe of the Breweries Company; that no application was made in writing to the mayor or city clerk; that no petition signed by the owners of at least 50% of the property on both sides of the street on which it was proposed to open such saloon, and within 150 feet of the center of the front of the building in which the saloon was to be located, accompanied said application nor was presented to the mayor or filed with the city clerk.
    Respondents made a motion to deny the petition for leave to file the information, accompanied by the affidavits of Rosenfield and Helmel. Rosenfield’s affidavit set up the ordinance of November 7, 1892, and that of June 2, 1902, and alleged that they were the only ordinances relative to saloon licensing in force in Moline until September 16, 1907, when an ordinance amending section 1, chapter XX of the Revised Ordinances of the city of Moline of the year 1892, was passed and approved September 17, 1907, authorizing the mayor to grant a license under certain conditions therein set out; and that it repealed the ordinance of November 7, 1892, as amended by the ordinance of June 2, 1902, and substituted the ordinance of September 16, 1907, for the ordinance so amended and in force up to September 16, 1907; that in said last mentioned ordinance there was no provision requiring a petition signed by at least 50% of the property owners, etc., but that this requirement which was a part of section 1 of the ordinance of 1892, was entirely omitted; that the ordinance of March 23, 1908, approved March 30, 1908, was passed at a meeting of the council held on March 23, 1908, at which all members were present except one; that the ordinance of ¡March 23, 1908, did not require a petition to accompany the application and did not contain a provision that no license should be granted to any person for conducting a saloon in any block where there was no building used for saloon purposes or licenses granted for the same, and that this ordinance was substituted for all ordinances passed prior to that time and was the only ordinance in force from March 23, 1908, to May 3, 1909; and that on May 3, 1909, there was no ordinance requiring the application to be accompanied by a petition. The affidavit farther stated that on May 3, 1909, Helmel applied to the mayor in writing for a license; that Helmel was not an agent or employe of the Breweries Company and that Vandegenachte was not an employe or agent of Rosenfield or of the Breweries Company but was an employe of Helmel; that the saloon did not belong to affiant or to the Breweries Company but to Helmel.
    Hehnel’s affidavit affirmed the truth of Rosenfield’s statements, and presented as exhibits certified copies of the record of the meeting of the city council of March 23, 1908, and his application for a license to conduct a saloon at 624 Rourth avenue in the city of Moline for the first period of the municipal year commencing the third Tuesday of April, 1909. Upon a hearing the court denied leave to file the information, and dismissed the petition at the costs pi the relator. The relator excepted and prosecutes this appeal.
    Lawrence M. Magill, Gr. A. Shallberg and J. T. and S. R. Keeworthy, for appellant.
    Joseph L. Haas, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

The granting or refusing leave to file an information in the nature of a quo warranto rests in the sound legal discretion of the court acting upon the application therefor. In the case at har the court refused to allow the information to be filed upon a consideration of the allegations of the affidavits. The material facts were not disputed, and the main question presented by the affidavits for the determination of the trial court, was whether the ordinance of June 2, 1902, was repealed by the ordinance of March 23, 1908. The question was purely one of law, and it is manifest, could receive as careful consideration on this application as could be given it in case leave to file the information had been granted. It is also fair to assume that upon the same facts, the decision would have been the same on the final hearing of the quo ivarranto as upon the petition for leave to file the information. It is for us to determine whether under the law and the circumstances of the case, the court below decided this point correctly.

Counsel for appellant argue that it should not be assumed that the ordinance of 1908 was ever adopted. It is true that the record of the proceedings of the city council attached to Helmel’s affidavit does not show a legal adoption of the ordinance, but relator’s affidavit alleges that the ordinance of 1908 was adopted and approved and went into force and still is in force, and appellant cannot be heard to deny the. statements contained in his own affidavit.

Section 1, chapter XX of the ordinances of 1892, provided that the mayor was authorized to grant licenses for the sale of intoxicating liquors to persons of full age and good character who should apply to him in writing, upon such person giving a bond in the sum of $3,000 with at least two good and sufficient sureties to be approved by the mayor, who should be freeholders in Bock Island county; that the municipal year beginning on the third Tuesday in April should be divided into two periods: from the third Tuesday of April to the third Tuesday in October to be known as the first period, and from the third Tuesday in October to the third Tuesday in April to be known as the second period; that the applicant should pay the city clerk a fee of $1 and for the term of one year should pay $500; for the first period $250, and for the second period $250. This ordinance was amended June 2, 1902, by adding that the application be accompanied by a petition signed by the owners of at least 50% of the property on both sides of the street, and within 150 feet of the center of the front of the building; that every application, where it was made necessary that a petition should accompany the application, should be filed in the office of the city clerk; that no license should be granted for opening or conducting a saloon in any block where there “is now” no building used for saloon purposes or license granted for the same. September 16, 1907, an ordinance was passed and approved September 17, 1907, amending section 1, chapter XX of the ordinances of 1892. March 23, 1908, an ordinance was passed which was approved March 30, 1908, entitled, “An ordinance amending section one (1) of chapter XX of the Revised Ordinances of the city of Moline for the year A. D. 1892,” which provided that said section “be amended so as to read as follows: ’ ’ By it the mayor was authorized to grant a license for keeping a saloon within the city of Moline to any person who should apply to him in writing and furnish satisfactory evidence of good character and give a bond of $3,000 with at least two good and sufficient securities to be approved by the mayor, who should be freeholders in Rock Island county; that such applicant should advance to the city clerk a fee of $1,000 and a fee of $1; that the license year be divided into two periods; the first period from the third Tuesday of April to the third Tuesday of October, and the second period from the third Tuesday in October to the third Tuesday in April; that for a year the applicant should pay $1,000, for the first period $500, and for the second period $500, all in advance; that upon compliance with these requirements a license signed by the mayor should be issued under the corporate seal; that the ordinance should go into effect upon its approval and that all ordinances in conflict therewith were repealed, and particularly an ordinance passed September 16, 1907, and approved September 17, 1907, amending section 1, chapter XX of the Revised Ordinances of 1892. Thus it is not necessary to consider the ordinance of 1907. By the ordinance of 1908 the matter of licensing saloons was left entirely to the mayor and all parts of the city were opened to a saloon license, while the ordinance of 1902 required a petition of property owners to accompany the application and positively forbade the issuance of a license in some parts of the city. Thus the two ordinances were inconsistent, and the rule is familiar that where two statutes are so repugnant that they cannot be reconciled and both given effect, the later statute will operate as a repeal of the earlier statute. Board of Water Commissioners v. People, 137 Ill. 660; David v. Commercial Mutual Accident Co., 243 Ill. 43. The rules for the construction of statutes and municipal ordinances are the same. In re Yick Wo., 68 Cal. 294.

It is also true that when an act is passed .providing that a prior statute shall be amended “so as to read as follows” it is elementary that the statute as amended is a substitute for the original, and repeals those parts of the former law which are left out of the substitute. Shadewald v. Phillips, 75 N. W. Reporter 717.

In Ashland Water Co. v. Ashland County, 87 Wis. 209, it was said: “It is, no doubt, a well settled rule in the construction of statutes that, where a statute provides that a certain former statute ‘is hereby amended so as to read as follows, ’ any provision of such former statute which is not found in the new statute is repealed. State v. Ingersoll, 17 Wis. 651; Goodno v. Oshkosh, 31 Wis. 127; Sydnor v. Palmer, 32 Wis. 406; State ex rel. Tervy v. Keaough, 68 Wis. 135-144; 21 Am. & Eng. Ency of Law, 1001. The object of construction is to conform the statute or the ordinance to the intention of the body enacting it. It is assumed that the enacting body intended to omit from the law those provisions of the old statute or ordinance which are not preserved and re-enacted in the new.”

In Palmer v. City of Danville, 166 Ill. 42, the court said: “The amendatory act declared that the statute should be amended to read as therein provided, and this operated to repeal the original section.” People v. Young, 38 Ill. 490; Kepley v. People, 123 id. 367; Louisville & Nashville Railroad Co. v. City of East St. Louis, 134 id. 656.

We conclude that the ordinance of 1908 repealed the ordinance of 1892, and repealed the ordinance of 1902 by implication.

There is no force in the contention of counsel for appellant that none but freeholders can be licensees. Section 5 of the Dram-shop Act from which municipalities derive their authority to license dram-shops, provides that no person shall be licensed to keep a dram-shop unless he shall first give a bond in the penal sum of $3,000 with at least two good and sufficient securities, freeholders of the county in which the license is granted, to be approved by the officer who may be authorized to issue it, but it does not require the licensee to be a freeholder. In People v. Matthews, 53 Ill. App. 305, relied on by counsel, the term “freeholders of the county” is discussed only as applying to sureties and the case does not support the contention of counsel.

We regard the allegation in relator’s affidavit that the other respondents besides Helmel, were interested in the business, as immaterial. The license was issued to Helmel and that he may have had business relations with others would not invalidate the license.

Although the suggestion is not made by counsel, the fact that the information related to a saloon at 624 Fifth avenue and the application for a license and the affidavits to a saloon at 624 Fourth avenue, was, of itself, a sufficient ground for refusing leave to file the' information.

The judgment of the Circuit Court is affirmed.

Affirmed.


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    O. G. Cummings, Appellant, v. Frank Elsholtz, Appellee.
    Gen. No. 5265.
    1. Landlord and tenant—when issuance of distress warrant unauthorized. The remedy by distress is statutory and the landlord has no right to issue a warrant unless predicated upon a claim for rent and nothing else.
    2. Trial—power of court to hear cause out of order, “for good and sufficient cause.” It is within the power of the trial court to hear a cause out of its order on the docket.
    3. Practice—when failure to observe section 26 of Practice Act will not reverse. The fact that the agreement to submit a case to the circuit judge was not in writing in accordance with the requirements of section 26 of the Practice Act of 1907 will not reverse if it appears that substantial justice has been done.
    Distress for rent. Appeal from the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    V. S. Lttmley and O. B. Hazelhubst, for appellant.
    J. F. Casey, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

O. G-. Cummings leased a dairy farm in McHenry county to Frank Elsholtz. The lease was in writing and provided, among other things, that Cummings was to put fifty milch cows on the farm, each party to stand one-half of all loss or gain by reason of changing- or death of cattle; that each party was to furnish one-half the seed, also to pay one-half the threshing bill and have one-half of everything produced on the farm during the term of the lease; Cummings was to draw all milk dividends and settle at the end of each month. On March 18, 1907, the sheriff of said county received a distress warrant issued by the landlord for rent claimed to be due and unpaid under the terms of the lease. He already held an execution against Elsholtz in favor of McBride Bros, and a chattel mortgage given him to foreclose by Warren C. Cummings and executed by Elsholtz upon the crops grown upon the leased premises. He levied the distress warrant and advertised the property for sale. Thereupon, the attorneys for the landlord, mortgagee and execution creditors entered into an oral agreement that the sheriff should sell the property and hold the proceeds awaiting the decision of the circuit judge to whom the parties agreed to submit the question of the priority of liens in the distress proceedings without the formality of pleadings. On April 28, 1909, on the motion of the attorneys for the mortgagee, in the absence of the landlord, the circuit judge heard the cause without a jury and found for the tenant and that the mortgagee was entitled to the first lien on the property distrained and rendered judgment against the landlord for costs. Later, the landlord entered a motion to vacate the judgment, and in support thereof, filed his own and the affidavit of T. S. Huntley, attorney for McBride Bros. Huntley’s affidavit related to the obtaining of the McBride judgment and to a conversation which affiant had with the landlord’s attorney relative to an agreement as to the sale of the property and the determination of the rights of the parties. The landlord’s affidavit related to the agreement as to the sale of the property and the determination of the rights of the parties and to the lease, and stated that there was a large amount of money due affiant from Elsholtz, paid out by affiant in the exchange of cows, but it did not state the amount, and nowhere set up that there was any rent due. The court denied the motion to vacate the judgment and the landlord prosecutes this appeal.

Elsholtz testified that there was no rent due and unpaid, and appellant’s affidavit shows that he did not claim that any rent was actually due him, but that there was money due him which he had paid out in the exchange of cows which the tenant should have paid. It will be observed that the distress warrant was not issued to recover unpaid rent but money due the landlord arising from a breach of a covenant of the lease providing for the adjustment of losses sustained on cows. The remedy here sought to be enforced is statutory. That the landlord shall have authority to issue the process, the claim must be for rent due and nothing else. His process, in so far as it claims for rent due, is valid, and in so far as it is for any other matter or claim, is beyond the authority of the landlord to issue it. It is familiar law that parties cannot confer jurisdiction by agreement. In this case, the parties could not, by their stipulation that the tenant was to stand half the loss by changing or death of cattle, convert any loss sustained thereby into rent and thereby confer authority upon the landlord to issue a distress warrant for that which was not rent.

It is assigned for error but not argued, that the court heard the cause out of the regular call, without the agreement of all the parties concerned, and in violation of a rule of the court regulating the order of the trial of causes. There is nothing in the record to show us that this was done, but, even if the case were set for trial out of its order upon the docket, section 21 of the Practice Act 1907 gives the court the right to take such action for good and sufficient cause. That section provides that causes shall be tried in the order they are placed on the docket, “unless the court for good and sufficient cause, shall otherwise direct.” It nowhere appears in the affidavits that the court did not have good and sufficient cause for its action, if such were taken.

The agreement to submit the cause to the circuit judge was not in writing in accordance with the requirements of section 26 of the Practice Act of 1907, and there may be some question as to whether or not an oral agreement conferred jurisdiction. We would not be justified in reversing the judgment for that reason since we think that substantial justice has been done, as there is nothing in the evidence to show that the landlord had any right to issue a distress warrant, and McBride Bros, did not appeal from the judgment.

In our opinion there was no reversible error in overruling the motion to set aside the judgment. The judgment is affirmed.

Affirmed.


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    Lafayette Upthegrove, Appellee, v. Chicago Great Western Railway Company, Appellant.
    Gen. No. 5271.
    1. Evidence—when results of experiments incompetent. If the conditions are similar when the experiment is made with those existing at the time the fact sought to he illustrated occurred, the result of such experiment is competent if- it is relevant to any issue in the cause.
    2. Tbial—when remarks of counsel ground for reversal. If remarks of counsel are improper they are ground for reversal even though objections thereto were sustained, as the mere sustaining of an objection unaccompanied by a rebuke does not cure the harm resulting from the impropriety.

      Action in case for personal injuries. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscab E. Heard, Judge, presiding. Heard in this court at the October term, 1909. Reversed and remanded.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.
    D. J. Leetehaet and Sheeah & Sheean, for appellant.
    T. J. Fitzpatrick and F. J. Campbell, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Lafayette Upthegrove, appellee, head brakeman on a freight train going east on appellant’s railway, was riding in the engine cab with the conductor, fireman and engineer, when just west of Fox station, Kane county, the engine came in contact with a dump car which was being used by a steel gang, servants of appellants, who were engaged in replacing a frog or switch and extending a passing track at Fox station. Just before the train reached the dump car, appellee jumped to the ground. He later brought this suit in the Circuit Court of JoDaviess county to recover damages for injuries claimed to have been thereby sustained. The declaration contained appropriate averments for the admission of the evidence offered. A plea of not guilty was filed, and on a trial Upthegrove had a verdict and judgment for $12,500 from which the railway company appeals.

The train consisted of twenty-seven loaded and thirteen empty cars, the first thirty-five cars next the engine being equipped with air brakes. The engineer had received orders at Sycamore, twenty miles west, to slow down to fourteen miles an hour at this point. The proof tends to show that the train was running twenty-five or thirty miles an hour as it approached this place and ten or twelve miles an hour when it struck the dump car.

Appellant contends that the negligence of the crew of the freight train, the 'conductor, engineer and appellee, caused the collision, and that as they are fellow-servants, appellee cannot recover; that the verdict is excessive and that this is due to the prejudicial remarks of counsel for appellee. Appellee claims that appellant, through the foreman of the steel gang, was negligent in failing to put out proper guards, flags or torpedoes a sufficient distance west to warn the crew of the freight train; that the engineer and conductor of the freight train were not negligent in any particular and that if they were to any extent negligent, that such negligence was but a concurring act of negligence operating .with the negligence of appellant through the foreman of the steel gang, and that in either case there can be a recovery. These claims were sharply contested and as this judgment must be reversed and the cause tried by another jury, we refrain from expressing an opinion as to whether the accident was caused by the negligence of appellant through the train crew or the foreman of the steel gang, or was the result of their combined negligence.

Appellant complains of the action of the court in refusing to permit it to show the result of tests made to ascertain the distance in which a train running over this track at this point could be stopped. The rule as we understand it, is, that if the conditions are similar when the experiment is made with those existing at the time the fact sought to be illustrated occurred, the result of the experiment could have a bearing on an issue and be admissible. Elgin, Aurora & Southern Traction Co. v. Wilson, 217 Ill. 47. It was held competent in Elgin, Joliet & Eastern Railway Co. v. Reese, 70 Ill. App. 463, to show by experiments conducted under similar conditions how far a train can be seen approaching the crossing of a highway. The evidence shows that these experiments were not made with the same engine and the train did not contain either the same number of loaded cars or the same number of empty cars, nor that the same number of cars were air equipped as the train upon which appellee was riding. These conditions were so dissimilar that we do not think the court erred in refusing to admit it.

At the close of all the evidence appellant moved the court to instruct the jury to return a verdict of not guilty, which motion was denied and the instruction refused. Thereupon one of appellee’s counsel, in addressing the jury, said that the court had decided that they had made out a case the jury must decide; that the preliminaries had been decided by the court, and that the court had decided that the declaration entitled plaintiff to recover. Another of appellee’s counsel, in his closing argument, said that Everall, appellant’s claim agent at the time of the accident, and its assistant general attorney at the time of the trial and a witness for appellant, sat there as much as to say to the conductor that if he testified to anything against the company he would lose his job; that if the jury brought in a verdict for the railroad company, they said to the people of Illinois, that if their relative goes out and gets hurt his family can go begging from door to door under this great commonwealth of Illinois; that if the engineer and conductor who testified for appellant had been negligent they would not have worked for appellant one hour; that if any one on the steel gang had been hurt, appellant would have had forty experts there to show that the engineer and conductor were not negligent; that when you go to those railroad doctors you must have a lump on you as big as a meat axe before they can see it; that the railway company thought that because the plaintiff had domestic trouble they had a right to break his neck. To each of these statements objections were interposed and sustained and counsel were admonished by the court to confine themselves to the evidence. These statements were indefensible and calculated to prejudice the jury against appellant. The effect of such an attack may be obviated in some cases by the action of the court, while in others it may be effective in arousing passion and prejudice notwithstanding the direction of the court. Wabash Railroad Company v. Billings, 212 Ill. 37. Here the court did not tell the jury that the remarks were improper and that they should disregard them and decide the case according to its merits and the law as given by the court. The mild ruling of the court without a severe rebuke was not calculated to allay the prejudice of the jury, and in our opinion did not. They returned a verdict of $12,500 which we think was grossly excessive in view of the injuries the evidence shows appellee sustained, and we can account for its size only on the theory that the jury were influenced by prejudice and swayed by passion, which it is- only reasonable to presume were aroused and aggravated by the inflammatory and unwarranted statements of counsel, and these elements may have entered into, and probably did enter into, the finding of other facts important to the issue, if not the issue itself. The language was highly improper, used intentionally and for an improper purpose, and we are sure that counsel guilty of the impropriety expected and intended to excite the passions and prejudices of the jury to their advantage, and may not now complain nor may their client, that we credit the size of the verdict to their improper and effective appeal in argument.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


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    Supreme Council of the Western Catholic Union, Appellant, v. Jennie Murrin et al., Appellees.
    Gen. No. 5277.
    1. Fraternal benefit societies—when but one liability. If there was but one membership in the society and but one set of premiums paid, there can be but one liability by the society.
    2. Interpleader—when bill lies. The equitable remedy of inter-pleader depends upon and requires the existence of the following four elements: “First, the same thing, debt or duty must be claimed by both or all parties against whom the relief is demanded; second, all their adverse titles or claims must be dependent upon or be derived from a common source; third, the person asking the relief—the plaintiff—must not have or claim any interest in the subject-matter; fourth, he must have incurred no independent liability to either of the claimants—that is, he must stand perfectly indifferent between them, in the position, merely, of a stakeholder.”
    Bill of interpleader. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    McEriry & McEriry, for appellant.
    J. T. and S. E. Kerwobthy and, Seable & Marshall, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

On March 31, 1902, one John J. Murrin, then unmarried, was admitted a member of the Supreme Council of the Western Catholic Union, appellant, a fraternal life insurance company organized under the laws of Illinois, and it issued to him a certificate of insurance for $2,000 payable at his death to his sister, Jennie Murrin, one of the appellees. He afterwards married, and died April 15, 1907, leaving a widow, Carrie Murrin, the other appellee. The certificate was then in force and the sister presented the proofs of his death and demanded the $2,000. The widow also demanded the $2,000 basing her claim on section four of the company’s constitution and by-laws which provides that “benefit certificates shall be made payable only to the wife or children. In case there be no wife or children then to any of his heirs, blood relations or to persons depending upon the member.”' The president of the company wrote to an officer of its local branch at Rock Island acknowledging the receipt of the claim of the sister and statiug also that he had received a letter from the attorneys of the widow saying* that she demanded the benefits. The letter also contained the following, “Now if Brother Murrin leaves a widow, then we will have to pay to her the amount of the benefit certificate.” The officer of the local branch acquainted the sister with the contents of the letter, and advised her that it would be better for her and better for the widow if they would settle between themselves. September 5, 1907, the widow brought suit in the Circuit Court of Rock Island county to recover the $2,000. September 6, 1907, the sister brought suit in said court to recover the $2,000; and at the January term 1908, the company filed a bill of interpleader, setting up the above facts and making the plaintiffs in the suits at law, Carrie Murrin and Jennie Murrin, defendants thereto and asking that they be required to litigate their claim. The bill also alleged that the demand of the sister and that of the widow were the same demand arising by virtue of the certificate issued to John J. Murrin, and that the company was ready to pay the amount of the certificate to such person or persons as are lawfully entitled to it; and that the company had not colluded with the claimants or either of them touching the matter in controversy nor was it in any way indemnified by the claimants or either of them, nor had it exhibited the bill of interpleader at the request of either of them, but of its own free will, to avoid being harassed touching the subject-matter thereof. The bill asked permission to bring the $2,000 into court to there abide the adjustment of the rights of the claimant thereto, and accompanied such request with an offer so to do, and prayed that the defendants answer specifically, and for process, and an injunction restraining the prosecution of the suits at law. After the defendants had answered the bill and the company had replied thereto, the court temporarily restrained the defendants from proceeding further with their suits at law, and referred the cause to the master to take the proofs, bearing on the allegations of the company’s willingness to pay the amount stipulated in the certificate, and as to whether it had in any respect colluded with either of the defendants touching the matters in controversy, and as to whether the bill was exhibited at the request of the defendants or either of them or of its own will or if it was in any manner indemnified by the defendants or either of them. The master took the proof and reported, first, that the company had always been ready and willing to pay the amount due on the certificate; second, that the supreme president acting for the company determined that the widow was entitled to the fund, thereby showing that it entertained no doubt as to which of the claimants was entitled to the fund, nor did such determination show indifference on its part between the claimants or ignorance of their respective rights; third, that while such acts did not show actual collusion they showed, to say the least, constructive collusion which would deprive it of the right to call upon the defendants to interplead. Exceptions were filed to this report and overruled. The bill was dismissed for want of equity, the injunction was dissolved, and the company appealed.

Appellees contend that under the facts shown they are each entitled to recover $2,000 from appellant, and that therefore they are not claiming the same fund but different funds and cannot be required to inter-plead. The certificate was made payable to the sister, and she testified that she had paid all the premiums, and in this she is not disputed. It is the contention of appellees that this gives her an absolute right to the $2,000. It is contended that the widow is also entitled to recover $2,000 irrespective of the terms of the certificate, because section four of appellant’s constitution and by-laws requires the company to pay the widow or children if there is a widow or children. It is also contended by the widow that the letter of the president to the officer of the local branch advising him of the view or opinion which the president entertained that that section of the constitution and bylaws would make the money payable to the widow, and gave her a right of action therefor; that it was a promise to pay her upon which she could recover. There was but one membership in the company, but one certificate, and but one set of premiums paid. Therefore, there was but one liability of the company and that was for the sum of $2,000 only. The meritorious question is whether by virtue of section four of the constitution and by-laws of the company, the marriage of Murrin, after he became a member and received the policy, took the fund from the sister, the beneficiary named therein, and made the widow the beneficiary instead. This question, however, is not for us to decide on this appeal.

In Platte Valley Bank v. Nat. Bank, 155 Ill. 250, the court said: “It is laid down in 3 Pomeroy’s Equity Jurisprudence, section 1322, that the equitable remedy of interpleader depends upon and requires the existence of the four following elements: ‘First, the same thing, debt or duty must be claimed by both or all parties against whom the relief is demanded; second, all their adverse titles or claims must be dependent on or be derived from a common source; third, the person asking the relief—the plaintiff—must not have or claim any interest in the subject-matter; fourth, he must have incurred no independent liability to either of the claimants,—-that is, he must stand perfectly indifferent between them, in the position, merely, of a stakeholder.’ ” This was approved in Morrill v. Manhattan Life Ins. Co., 183 Ill. 260.

These elements co-exist in the bill in question. It alleged and the proof shows that the sister claims the fund and the widow also claims the fund. The common source of the title claimed is alleged and proved to be the certificate issued by the insurance company. The company disclaims all interest in the fund, and has none beyond seeing that payment is made to the person entitled to receive it. It has incurred no independent liability to either of the claimants, and the evidence shows that it has not colluded with either party.

We are of the opinion that the facts were sufficient to support a bill of interpleader and that the conflicting claims therein set up should have been determined, and that the court erred in dismissing the bill for want of equity.

The decree of the court below is reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.


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    Frank Lynch, Appellant, v. Harry Smith, Appellee.
    Gen. No. 5284.
    Landlord and tenant—ivho not purchaser of crops in good faith. One purchasing grain of a known tenant of another with knowledge that such grain was raised upon the demised premises is not a purchaser in good faith.
    Action in case. Appeal from the Circuit Court of La Salle county; the Hon. Richard M. Skinner, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and judgment here.

      Opinion filed March 11, 1910.
    Stricken from rehearing docket April 13, 1910.
    Robert Carr and R. A. Greeh, for appellant.
    McDottgall & Chapman, for appellee. ■
   Mr. Justice Willis

delivered the opinion of the court.

For a number of years prior to 1907, George Lynch rented a farm from Frank Lynch, appellant, on shares, but for that year it was agreed that he should pay $800 money rent. In January, 1908, he delivered to Harry Smith, appellee, a warehouseman, seven hundred and ten bushels and fifty pounds of grain raised on the premises during the season of 1907, and received therefor a check for $735.68, dated January 11, 1908. The rent had not been paid, and the landlord sued the warehouseman to recover the value of the grain. His defense was that he purchased the grain in good faith. The cause was heard by the court without a jury and a judgment was rendered for appellee, and that' the landlord pay the costs. This appeal is prosecuted by the landlord.

The evidence shows that appellee knew when he bought the grain that George Lynch was a tenant on appellant’s farm, and that the grain was raised on the leased premises/ This knowledge was sufficient to put biin on inquiry as to whether or not the rent had been paid. Reinhardt v. Blanchard, 78 Ill. App. 26. He was bound to know that the Landlord and Tenant Act gave the landlord a lien for rent on the crops raised on the demised premises, which he might enforce as to all except purchasers in good faith. If he failed to make inquiry he was not a purchaser in good faith. Watt v. Scofield, 76 Ill. 261; Prettyman v. Unland, 77 Ill. 206; Carter v. Andrews, 56 Ill. App. 646. He made no inquiry of the landlord concerning the rent, but testified that he learned from the tenant that it had been paid. The only conversation with the tenant that he testified to, was one had in January, 1907, before the grain was grown or the term for which money rent was paid, begun, in which the tenant told him he had rented for cash, payable in advance, and needed $500 to see him through, and asked appellee to loan him that amount, which he did. If appellee understood that this $500 was to be used in paying the rent, then he did not understand that the rent had been paid. If he did not understand that this money was to be used in paying the rent, then he understood only that the tenant said in January before the term began, that he had rented for $800 cash rent, payable in advance. That was not equivalent to saying that the rent had been paid, and could not have been so understood by appellee. His statement that he learned from the tenant that the rent had been paid, made when pressed on cross-examination, without any detail as to when or where or in what language the fact was conveyed to him, is not entitled to be believed as establishing the proposition that the tenant told bim the rent was paid. We must conclude that he did not inquire of the tenant whether or not the rent was paid, and since he was well* acquainted with the landlord, and for four preceding years had sent him the proceeds of his share of the crop delivered at his warehouse by the tenant,' thus protecting himself by seeing to it that the rent was paid, it seems to be a just inference from the evidence, that in this instance, he decided to collect his own debt. We are also of the opinion that an inquiry of the tenant alone would not have been sufficient, but that he should have inquired of the landlord. In payment for the grain, appellee gave the tenant an instrument called a check which he testified was a regular form he used to protect him from ‘‘scalawag renters” which contained a representation that the grain was not subject to any landlord’s lien, apparently intended to be signed by the seller. This instrument was not signed on its face by the tenant bnt was endorsed “Geo. Lynch” on the back. The inference that we draw therefrom, is, that either the tenant was not inquired of as to whether the rent was paid or asked to sign the paper; or that he told appellee when inquired of that it was not paid and would not sign the paper. That it was not paid was the fact, and the presumption is that the tenant would have told the truth.

There is no force in appellee’s argument that he had a right to rely upon the statements of the tenant as appellant had held him out as his agent, since there is abundant proof that appellee acted entirely under appellant’s directions in handling appellant’s share of the grain delivered at appellee’s warehouse in previous years by the tenant, and in remitting the proceeds of sale thereof, and there is nothing in the record from which such an agency can be implied.

We therefore hold that appellee did not establish his defense that he purchased the grain in good faith, and that he should not be allowed to protect himself under the plea that the tenant told him that the rent had been paid.

Therefore the judgment of the Circuit Court is reversed, and the judgment will be entered here for appellant and against appellee for $735.68.

Reversed and judgment here.


text:
    Edward Hauk, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5288.
    1. Contributory negligence—when person crossing trades guilty of. A person 33 years of age, of ordinary intelligence, familiar with the locality, who seeks to cross railway tracks diagonally, knowing at the time that cars were operating up and down the street upon which such tracks were located, held, under the evidence in this case, guilty of contributory negligence.
    2. Evidence—effect of positive and negative. Positive evidence as to the fact that a bell was rung or a whistle sounded, or any otter fact, not improper in itself, is entitled to more weight than negative evidence in relation to such facts.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed wth finding of facts.
    Opinion filed March 11, 1910.
    Pinkney & McRobebts, for appellant.
    Dailey & Miller, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellant, the Peoria Railway Company, operates as a part of its railway system in the city of Peoria, a double track electric street railway line on Hamilton street from Jefferson avenue to Monroe street, a distance of two blocks. Hamilton street runs in a direction substantially east and west intersecting Jefferson avenue on the east and Monroe street on the west at right angles. At Jefferson avenue the tracks run from Hamilton, street to Jefferson avenue and thence southerly to other portions of the city. At the intersection of Hamilton street with Monroe street, the tracks run in a northerly direction. On August 3, 1908, appellee, who had been for a number of years engaged in driving a truck and baggage wagon between hotels and depots, drove his team and wagon out of a public alley in the rear of a hotel on to Hamilton street and then in an easterly direction for fifteen or twenty feet on appellant’s up track, at which point he pulled his team and wagon across the down track, and a car operating down Hamilton street towards Jefferson avenue struck the end gate which was hanging down in the rear of the wagon, and appellee brought this suit to recover damages for injuries claimed to have been thereby sustained. The declaration contained three counts. The first count charged that appellant, through its servants, negligently drove the car at a high and dangerous rate of speed. The second count charged that appellant’s servants failed to ring a bell or sound a gong on the approaching car within one hundred feet of the intersection of Hamilton street and Jefferson avenue, as required by a city ordinance. The third count charged appellant’s failure to stop the car on the first appearance of danger, as required by an ordinance of the city. Each count alleged that appellee was in the exercise of due care for his own safety when injured and that he was injured because of the negligence charged in the various counts. There was a trial and verdict and a judgment for appellee for $1,000, and the company appeals.

Appellee testified that when the car struck the wagon he was sitting on the seat with the lines in his hand, one foot was back of him, and that he did not leave his seat. Other witnesses testified he was standing up in the wagon back of the seat. He stated that he received quite a blow; that his back was hurt in the center and twisted; that his shoulders were jerked out of place, “pretty near;” that he had not had the use of them since; that the board on the seat struck him across the hips and fractured his hips and joints; that his neck seemed to be cracked; that he could not hear out of one ear; that his neck was injured and he could not twist his head.

Appellee was thirty-three years old, of ordinary intelligence, and was familiar with the locality, having driven a baggage wagon thereabouts for ten years. He undertook to cross both tracks diagonally, when he knew, according to his own testimony, that cars were operating up and down this street every few minutes. He testified that when he started to cross the tracks, he looked back and there was no car in sight. The place where the car turned on to Hamilton street was a block and a half back of him and he said his mules were going on a trot. The car, therefore, must have been in sight when he says he looked back. He either did not look back at all or else he looked back and saw the car coming and thought he could get across ahead of it or that he could force the motorman to stop. “The law will not tolerate the absurdity of allowing a person to testify that he looked, but did not see the train, when the view was unobstructed, and where, if he had properly exercised his sight, he must have seen it.” Chicago, Peoria & St. Louis Ry. Co. v. DeFreitas, 109 Ill. App. 104; Chicago, Rock Island & Pacific Ry. Co. v. Jones, 135 Ill. App. 380. If he looked and saw the car coming and drove upon the track with the intention of compelling the car to stop, then he was guilty of contributory negligence. “If teamsters generally, may drive across street car tracks between street intersections, knowing that a collision will be inevitable unless a car is stopped, and intending to take precedence over the car and compel those in charge of the car to stop it, the rights of a street car company on its track and of the general traveling public would be invaded and practically destroyed. (North Chicago Electric Railway Co. v. Peuser, 190 Ill. 67.) The law does not permit one in such a place to drive in the path of a moving car, relying upon those in charge of the car to stop it and protect him from injury.” Chicago Union Trac. Co. v. Jacobson, 217 Ill. 404. Other people who did not even look knew the car was coming. Three women engaged in conversation in the hath room of a dwelling house, who testified for appellee, stated that they knew that the car was coming. If appellee drove across these tracks without looking back, knowing as he did the frequency with which cars ran there, he was guilty of contributory negligence.

The proof shows conclusively that he was not thrown from the wagon; that after the collision he got off the wagon and went back and took the number of the car and swore at the conductor, and then went forward to his mules and found only a neck-yoke strap broken; and that he did not consult a physician until seven days later and that the physician found no evidence of injury except a little bruise on the back, aside from subjective symptoms based on appellee’s self-serving declarations. Appellee testified that when he first saw the car it was about ten feet away from him and was running about ten miles per hour. Four witnesses testified for appellant that it was running down Hamilton street about five miles per hour. The motorman testified that when appellee started across the track the car was going two or three miles per hour, and that when it hit the wagon, about one mile per hour. One witness testified that, at the time it struck the rig, it was almost at a stop. No mark was • made on the car and the preponderance of the evidence is to the effect that the only injury to the rig or team was the breaking of the pole strap. It is clear that the car was not running at a high and dangerous rate of speed when it approached appellee’s wagon; therefore the negligence charged in the first count was not proven. Appellee testified that the bell did not ring and a number of witnesses testified for hitT) that they did not hear it ring. Their testimony was only negative. The conductor, the motorman and the only passenger on the car, testified that the motorman commenced to ring the bell before he came to the alley and kept ringing it until the car struck the wagon. Their testimony was positive. “The rule as laid down by the courts in this state is that positive evidence as to the fact that a bell was rung, or a whistle sounded, or any other fact not improbable in itself, is entitled to more weight than negative evidence in relation to such facts. Chicago & Alton Railroad Company v. Gretzner, 46 Ill. 83; C. B. & Q. R. R. Co. v. Stumps, 55 Ill. 367; C. R. I. & P. R. R. Co. v. Still, 19 Ill. 499.” Chicago, Rock Island & Pacific Railway Company v. Jones, supra. When the motorman saw appellee and his team was just stepping on the up going track, he rang his bell, threw off his power and pulled up on his brake. As he rang his bell, appellee swung his team and started down the opposite track. The motorman then released his brake and started his car and got within ten feet of the wagon when appellee swung in front of the car and pulled his team diagonally across the track. The motorman then put on his brake again and pulled his reverse. It is, therefore, apparent the appellant’s servant in charge of the operation of the car used all the means and appliances within his command to prevent the collision. From this it is plain that appellant was not guilty of the negligence charged in the second and third counts of the declaration.

There is nothing in the evidence to show that the accident was of such a nature as would naturally cause serious injuries to appellee nor does the evidence justify the conclusion that he suffered serious injuries as a result of it. He did afterward go to the hospital and complained of certain ailments, but we do not think the conclusion warranted that they were caused by this car, when it had nearly stopped.

The evidence" failing to show any liability on the part of appellant, the judgment will be reversed.

Reversed.

Finding of facts, to be incorporated in the judgment: We find that appellee was guilty of negligence which contributed to the injury, and that appellant was no.t guilty of negligence.