text:
    George L. Horn, Appellant, v. J. D. Andrews et al., Appellees.
    Appeals and errors—when findings of chancellor not disturbed, bindings of fact by a chancellor where snch chancellor has had the opportunity of seeing witnesses upon the stand and hearing them testify, will not be disturbed unless the Appellate Court can say that the same are clearly and palpably erroneous.
    Bill in equity. Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed. October 14, 1911.
    Rehearing denied November 8, 1911.
    Emery Andrews, for appellant.
    Craig & Kinzel, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decree dismissing upon hearing a hill in equity, the substantial averments of which were, that on June 10,1906, one Belting and wife, as principals, and the defendants and complainant as sureties, executed and délivered to the First National Bank of Mattoon, a promissory note for the sum of $500 due in ninety days and drawing interest at the rate of seven per cent; that the said Beltings neglected to pay said note at its maturity, and that the complainant paid the sum of $508.85, being the amount thereof with legal interest, in full discharge and satisfaction of the same; that at the maturity of said note, the said Beltings were and had continued to be insolvent, and that a suit against them, or either of them, would be unavailing: The bill prays that the defendants may each respectively be decreed to pay to the complainant an equal one-fourth of the amount so paid by him in satisfaction of said note.

The defendants, Andrews and Clark, answered denying the allegations of the bill, and alleging that whilé they signed said note as sureties for the Beltings, that Theodore Belting paid the same by the transfer of certain property to the complainant, in consideration of which the complainant assumed payment of said note, and that in accordance with such agreement with said Beltings, he did pay said note, whereby the sureties thereupon were relieved from any liability. Replications were filed to said answers. The defendant Hamilton filed a plea of former adjudication, alleging that he, Hamilton, had theretofore brought suit in the circuit court of Coles county upon an open account, against the complainant, and that in that suit the complainant filed a plea of general issue, with notice of set-off, by which he set up the payment by him of the note now in question, and that Hamilton, as co-surety, was indebted to him for an aliquot part of the amount so paid; that a trial of said suit resulted in a verdict and judgment against the complainant, ■ and that the question of his liability to the complainant as co-surety upon said note was thus finally determined.

The only question argued in this court, is whether the chancellor was warranted in finding that the complainant agreed with Belting to assume and pay the note upon which he and the defendants were sureties, in consideration of the transfer by Belting to him of certain real estate. If he did, it is manifest that neither defendant is liable to contribute as prayed. The evidence, which was conflicting, was heard by the chancellor in open court. He had the opportunity of seeing the witnesses upon the stand and hearing them testify. Under these circumstances this court is not at liberty to disturb his findings upon questions of fact, unless it can be said that the same are clearly and palpably erroneous. Dyas v. Dyas, 231 Ill. 367; Beall v. Dingman, 227 Ill. 294; Heyman v. Heyman, 210 Ill. 524; Lurie v. Sabath, 208 Ill. 401; Bodelsen v. Swensen, 206 Ill. 68; Bouton v. Cameron, 205 Ill. 50; Grreensfelder v. Corbett, 190 Ill. 565. We have carefully considered the whole evidence and do not feel justified in so holding.

The decree of the circuit court is accordingly affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    John B. Fuller, Appellant, v. Illinois Central Railroad Company, Appellee.
    1. Common carriers—when responsibility attaches. The responsibility of a common carrier for goods received by it begins as soon as the same are delivered and ready for immediate transportation. If the shipper captiously withholds shipping directions the company into whose possession the goods have come is only liable as a warehouseman during the period of the withholding of such directions.
    2. Railroads—discretion as to location and maintenance of stations. Railroad companies are vested with considerable discretion as to the location and maintenance of their stations and whether or not they are bound to maintain a' station depends upon a variety of facts and eireumstances. There is no presumption of law that a railroad company is required to maintain a station at a particular point merely because it had formerly kept one thereat.
    3. Railroads—when deed does not impose obligation to maintain station. A deed in order to impose the obligation upon the grantee railroad company to maintain a station on the land conveyed, must contain a stipulation to that effect which constitutes a personal covenant or a condition subsequent.
    Action in case. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    Herrick & Herrick and John Fuller, for appellant.
    Lemon & Lemon, for appellee; John Gr. Drennan, of counsel.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action on the case, for the recovery of damages occasioned by the alleged delay of the defendant in carrying certain live-stock of the plaintiff from Fullerton, Illinois, to the stock-yards at Chicago. At the close of the plaintiff’s evidence, the court directed a verdict in favor of the defendant, upon which judgment was rendered in bar of action and for costs.

The evidence shows that the defendant had maintained a station and an agent at Fullerton for many years prior to March 1, 1909; that the duties of such agent were to receive the billing for stock and deliver shipping contracts; that during such time the defendant had maintained side-tracks and chutes for the purpose of receiving and discharging live-stock at such station, and that the plaintiff for many years had shipped stock over the defendant’s road to the Chicago market; that during said period, the defendant’s agent at Fullerton had, at the plaintiff’s request, from time to time, procured cars to be set upon its sidetrack at the chutes, for shipment of such stock, and had received the hilling therefor and delivered contracts with him for the shipping of said stock.

The evidence further shows that Fullerton is a flag station on the defendant’s road, situated two miles from Parnell, a regular station; that after March 1, 1909, the defendant discontinued said station and thereafter had no agent there, of which fact the plaintiff was aware; that on March 9th, the defendant, at the request of the plaintiff, set two cars on its side-track at the chutes in Fullerton, into which the plaintiff loaded his live-stock; that said stock remained in said cars until about noon of the second day, when they were unloaded and fed, and in the evening re-'loaded, at which time one of the conductors of a freight train of the defendant received the billing for the stock and delivered the contract of shipment to the plaintiff. The stock was taken to Chicago that night, arriving in time for the market the next day. There is' evidence tending to prove that by reason of the delay, the live-stock suffered a heavy shrinkage in weight, and that by reason of their condition they failed to sell for the same price that they otherwise would have sold.

The evidence introduced by the plaintiff further shows, that at the time he ordered the cars from the agent of the defendant at Parnell, said agent endeavored to obtain from him billing directions, but that the plaintiff refused to furnish such information unless said agent would go to Fullerton and there receive such directions and information; that on the evening of the day after the stock were loaded, the agent at Parnell again endeavored to induce the plaintiff to give him the billing instructions and sign the contract, but that the plaintiff again refused to do so; that the agent then gave the necessary papers to the conductor of a freight train, who upon the arrival of his train at Fullerton, received from the plaintiff billing directions, and exeeuted the shipping contract, whereupon the stock was loaded upon the next following train, taken to Chicago and there delivered to the consignee.

The fair inference to he drawn from the evidence, is that the plaintiff resented the discontinuance of the station and agent at Fullerton, and captiously refused to give hilling instructions or sign a shipping contract at any other place than at Fullerton, under the erroneous belief that the defendant had no right in law to abandon such station. We think the trial court properly directed a verdict.

As a general rule, the responsibility of a common carrier for goods received by it begins as soon as the same are delivered and ready for immediate transportation. But on the contrary, if the goods, when so deposited, are not ready for immediate transportation, and the carrier cannot make arrangements for their carriage to the place of destination until something further is done, or some further direction is given or communication made concerning them by the owner, the deposit must be considered to be in the meantime for his convenience and accommodation, and the receiver, until some change takes place, will be responsible only as a warehouseman. The party bringing the goods must first do whatever is essential to enable the carrier to commence or to make needful preparation for commencing the service required of it before it can be made liable or subjected to responsibility in that capacity. The rule is well settled that the liability of the carrier, as such, does not begin until the duty to immediately transport the goods arises. More on Carriers, p. 130; 4 Elliott on Railroads, Sec. 1403; R. R. Co. v. Montgomery, 39 Ill. 335.

The stock in question was not delivered to the appellee as a common carrier until the billing directions were given. The railroad company is engaged in both warehouse and transportation business. Where goods are deposited either in a warehouse or otherwise placed in its custody as a mere accessory to the carriage, and for the purpose of facilitating it, its liability begins at once as a carrier, although the goods or property may not be actually transported for some time afterward. But where the shipment is delayed because of orders of the shipper or consignee, or, what is the same thing, by the failure or refusal of the shipper to do something that is essential as a condition precedent to the performance of the duty of the carrier, and delay is occasioned thereby and consequent injury results, the liability of the receiver is that of warehouseman and not of carrier; the reason of the rule being that there has never been a complete delivery of the property to the carrier in its capacity as such. In the case of Illinois Central Railroad Company v. Smyser, 38 Ill. 354, cited and relied upon by counsel for appellant, there was a complete and absolute delivery of the goods to the company, and the case is therefore not in point.

But aside from the above rule, in the case at bar, even if there had been a delivery of the stock to the defendant as a common carrier, the plaintiff, by captiously refusing to give the billing directions and thereby causing the delay in the shipment and the injury complained of, could not recover upon any reasonable theory of the case. It does not follow that because the defendant had formerly kept an agent at Fullerton, to there receive the billing of stock, it was bound in law to continue such practice. Bailroad companies are vested with considerable discretion as to the location and maintenance of their stations, and whether or not they are bound to maintain a station, depends upon a variety of facts and circumstances. There is no presumption of law that it was required to maintain a station at a particular point merely because it had formerly kept one thereat. R. R. Co. v. People, 132 Ill. 559; R. R. Co. v. People, 152 Ill. 230.

We do not think the deed by a former owner, conveying to the grantor of the defendant the land upon which the station of Fullerton was located, wherein it is recited that the consideration for such conveyance is that the grantee will maintain a switch and flag station at Fullerton, was material to the issues in this case, such stipulation being neither a personal covenant nor a condition subsequent. Traction Co. v. Warrick, 94 N. E. 833. Moreover, the abstract fails to show that said deed was offered in evidence, or that the court ruled upon its admissibility, or that there was any exception taken.

The judgment of the circuit court will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, ex rel W. R. Bradley et al., Appellee, v. City of Champaign, Appellant.
    Local improvements—section 34 of act construed. While a city council is not required to adopt any particular ordinance and is at liberty in its discretion to provide how an improvement shall be made, how the cost thereof shall be raised and the other necessary details, it is bound when the essential preliminary steps provided by section 34 have been taken, to adopt an ordinance of some nature looking toward an improvement of the kind requested by the property owners.
    Mandamus. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.
    B. M. Price and F. B. Hamill, for appellant.
    A. E. Campbell and O. B. Dobbins, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Appellee filed a petition for a writ of mandamus commanding the mayor and city council of the city of Champaign to meet in regular or special session at a time to be designated by the court, and to pass an ordinance for the improvement by paving and draining, of a part of Prospect avenue in said city. The court overruled a general and special demurrer to such petition, and the defendant having elected to abide by its demurrer, entered judgment on demurrer and awarded a writ of mandamus in accordance with the prayer of the petition. The petition alleges in detail the necessary preliminary proceedings to be had by section 34 of the Local Improvements Act (Eev. Stat. 1909, page 462). The controlling question presented for determination is whether it then became the imperative duty of the city council to pass the ordinance petitioned for by the property-owners as provided by said section, or whether such body is vested with discretionary power in the matter.

In Givens v. City of Chicago, 188 Ill. 348, 352, the court referring to the section in question says:

“Section 34 contains the only provision which makes it the duty of the corporate authorities to adopt an ordinance providing for the improvement recommended by the board, and that is confined to cases where the owners of the greater part of the property in any one or more contiguous blocks abutting on the street or public place to be improved shall petition for the improvement. # * * This provision does not make it the duty of the city council to pass an ordinance providing for the improvement because the board of local improvements has recommended it, but because primarily the owners of the abutting property had petitioned for it. Nor is it made the duty of the council to adopt the 'draft of an ordinance’ prepared and presented by the board, bnt only to pass ‘an ordinance for the said improvement.’ * * * We are of the opinion that the statute does not violate the provisions of the constitution above set out in the respect mentioned. ’ ’

It follows from the foregoing views that the word “shall” as used in said section 34, is mandatory and not directory; that it should be given an imperative 'Construction. While the city council is not required to adopt any particular ordinance, and is at liberty, in its discretion, to prescribe how the improvement shall be made, how the cost thereof shall be raised, and the other necessary details, it is bound, when the essential preliminary steps provided by section 34 have been taken, to adopt an ordinance of some nature looking toward the improvement of Prospect avenue in the manner requested by the property owners.

The other objections raised to the sufficiency of the petition are without merit.

The judgment of the circuit court is affirmed.

Affirmed.

Mr. Justice Philbrick took no part in the consideration of this case.


text:
    American Surety Company of New York, Appellant, v. Hillsboro Building & Improvement Association, Appellee.
    1. Homestead loan associations—section SI of act construed. A bond of an officer of a loan association so far as its provisions are not authorized by this section of the statute, is absolutely void, and the association is not estopped from attacking such provisions as ultra vires.

    2. Homestead loan associations—when lond ultra vires. A provision of a bond given by a surety company to protect an association from defalcations made by one of its officers insofar as it provides that in a certain contingency money paid to make good the defalcation of such an officer should be in part refunded to the surety company, is ultra vires and void.
    Assumpsit.' Appeal from the Circuit Court of Montgomery county; the Hon. J. 0. McBride, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 14, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    D. B.. Kinder, for appellant; Norcross & Norcross, of counsel.
    Miller & McDavid, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit. The cause was tried by the court without a jury, upon the common counts, demurrer having been sustained to the special counts. The issues were found in favor of the defendant, and judgment rendered against the plaintiff in bar of action and for costs.

The evidence shows that James E. Colvin, who was secretary of the defendant association, as principal, and the plaintiff as surety, executed to the defendant a bond and continuance certificate, by the terms of which the plaintiff bound itself to pay such pecuniary loss, not exceeding the sum of $7,000, as the defendant should have sustained of its funds or other personal property stolen or embezzled by the said Colvin during the performance of his duties as secretary of the defendant association, during the terms commencing July 19, 1905, and ending July 19, 1907. The bond contained the following provision: ‘ ‘ That in the event of any such loss by the employer and of any claim being made against the surety, the surety shall be entitled to share with the employer pro rata on the basis which the surety’s loss bears to the employer’s total loss, in any recovery by the employer, upon or by reason of snch loss, from any source other than the surety, excepting any recovery upon or from other suretyship of such employer.”

Upon the death of Colvin, June 1, 1907, investigation of his accounts was made, and on October 11,1907, it was discovered that he was an embezzler to the extent of $29,228.60. Notice of the shortage was given the plaintiff October 16, 1907, and on October twenty-' third following, it paid to the defendant the full amount of the bond, to-wit: $7,000. The investigation was continued, and finally completed in November, 1907, and it was learned that the total amount of the defalcation was $34,689.03. The defendant then notified the plaintiff of, the total amount of the shortage, and further, that it would file its claim against the estate of Colvin for the sum of $27,689.03, being the difference between the total shortage and the amount paid to it by the plaintiff. It did so, and the claim was allowed by the county court,' as of the sixth class, and paid. The plaintiff also filed a claim against said estate, for the amount paid by it to the defendant, with interest, which was allowed, in the sum of $7,021.52, as of the seventh class. The assets of the estate were insufficient to pay any part of the plaintiff’s claim.

By the special counts of the declaration, to which demurrer was sustained, the foregoing facts are recited, in substance. It is further alleged therein that the plaintiff, by reason of the execution of said bond by the plaintiff and its acceptance by. the defendant, and the demanding and receiving the sum of $7,000 from the plaintiff, became liable to pay to the plaintiff the pro rata aforesaid of the amount which it received from the estate of Colvin.

It is first urged as ground for reversal, that the court erred in sustaining the demurrer to the special counts. This raises the question as to whether the agreement between the parties, whereby the defendant agreed to share with the,plaintiff pro rata on the basis which the loss of the plaintiff sustained to the total loss of the defendant, other than suretyship, was ultra vires the defendant, and if ultra vires, whether it could receive and retain the benefits of the contract and not comply therewith, and if not, whether it must not restore to the plaintiff that which it received. It is urged that inasmuch as the Statute governing loan associations does not provide the conditions of bonds to be given by officers of such associations, but the same is left to the discretion of the directors thereof, that the directors of the defendant in the present case, therefore, had power to agree with the surety upon any terms and conditions they saw fit.

“It is well settled that the powers of a corporation organized under a legislative charter are only such as the Statute confers, and the enumeration of these powers implies the exclusion of all others. The rule of construction applicable to the statutory provisions is that every power that is not clearly granted, is withheld, and that any ambiguity in the terms of the grants must operate against the corporation and in favor of the public. .If the power claimed is withheld it is regarded as a prohibition against the exercise of such a power.” Fritze v. Equitable Society, 186 Ill. 183.

“A corporation can exercise no other powers than those which are expressly conferred upon it by its charter, or which may be necessarily implied therefrom. If the corporate act is Feyond its power, it cannqt be ratified, and it is not estopped to raise the defense of ultra vires.” Converse v. Emerson, 242 Ill. 619.

■ “The doctrine that a corporation cannot avail itself of the defense of ultra vires where a contract has been in good faith performed by the other party, and the corporation has had the full benefit of its performance, has no application where snch contract is immoral or illegal or prohibited by Statute, or where its enforcement would be against public policy.” Fritze v. Equitable Association, supra.

Section 5b of the Loan Associations Act provides that “Every person appointed or elected to any position requiring the receipt, payment, management or use of money belonging to such association, shall within thirty days after such appointment, become bonded with two or more good and sufficient securities, or with some good and responsible fidelity or insurance company, in such sum as the directors shall require and provide. ’ ’ The same section further provides that “the bond shall be sufficient in amount to protect the association from any loss by reason of malfeasance in office or failure to faithfully perform and discharge the duties of his position.” By the by-laws of the defendant association the secretary is authorized “to receive all moneys paid to the association, and to pay the same over to the treasurer. ’ ’

“A contract of a corporation which is ultra vires in the proper sense of that term—that is to say, outside of its creation, as defined by the laws of its organization, and therefore beyond the powers conferred upon it by the legislature,—is not only voidable, but wholly void and of no legal effect. The objection to the contract here is, not merely that the corporation ought not to have made it, but that it could not lawfully have made it. The contract could not be ratified by either party because it could not have been authorized by either. No performance by the parties could give the unlawful contract validity or become the foundation of any right of action upon it. When a corporation acts within the general scope of the powers conferred upon it by the legislature, it, as well as all persons contracting with it, will be estopped to deny that it has complied with the legal formalities which are prerequisite to its existence or to its action because such prerequisites might, in fact, have been complied with. But when the contract is beyond the powers conferred upon it by existing laws, neither the corporation nor the other party to the contract can be estopped, by assenting to it or by acting upon it, to show that it was prohibited by those laws. The powers delegated by the State to corporations are matters of public law, of which no one can plead ignorance. A party dealing with a corporation having limited and delegated powers is chargeable with notice of those powers and their limitations and cannot plead his ignorance of their existence. ’ ’ Steele v. Fraternal Tribunes, 215 Ill. 190.

We conclude from an examination of the Statute and the' authorities above cited, that the Statute expressly provides the terms of bonds to be given by officers of loan associations; that the bond now under consideration, so far as it complies with the Statute, is valid and enforceable, but that the provision referred to not being authorized and being contrary to the spirit of tlie Statute, is prohibited thereby, and wholly void, not voidable. We are further of the opinion that although there has been full performance on the part of the plaintiff, the defendant, by assenting to the provisions, or acting upon or receiving the benefit of the bond, is not estppped to insist that such provision is void. It seems clear that the board of directors had no legal right or power to agree with the surety company that money paid to make good the defalcation of an officer, should be in part refunded to the surety company. The special' counts in question, therefore, did not state a good cause of action, and the demurrer thereto was properly sustained.

We are not prepared to hold that a recovery could be had under the common counts upon the theory that the defendant holds money which in equity and good conscience belongs to the plaintiff. While the defendant lias received the full benefit of the bond in question, it has in fact received no more than the plaintiff, by its obligation, in consideration of the premium paid, agreed that it should receive. The plaintiff agreed, for a good consideration, to pay any loss that the defendant might sustain by reason of the embezzlement of Colvin. The defendant has been fully reimbursed, and no more. To hold that the plaintiff is relieved from the full performance of its obligation because of the provision in question, would be to defeat the very purpose of the bond, and impose upon the defendant a duty and obligation unwarranted by either law, equity, sound reason or public policy.

The foregoing views we think dispose of the vital questions in the case. The judgment of the circuit court is affirmed.

Affirmed.


text:
    H. W. Riley, Appellee, v. L. J. Lamson et al., Appellants.
    1. Appeals and errors—what must he preserved hy hill of exceptions. A motion to dismiss, predicated upon lack of jurisdiction of the person of the defendant, in order to be preserved for review, must be incorporated in the bill of exceptions.
    2. Appeals and errors—when hill of exceptions must he filed. A bill of exceptions must be presented, allowed or signed at the term at which the orders excepted to were entered or else there must be some provision by order entered at such term that the bill of exceptions may be presented at a subsequent term.
    3. Appeals and errors—when pleas must he preserved hy hill of exceptions. Pleas in abatement presented with a motion for leave to file the same are not preserved for review unless incorporated in the bill of exceptions.
    4. Jurisdiction—what waives question of. If defendants prior to raising a question of jurisdiction of their persons appear and plead to tlie merits sueli jurisdictional question is waived.
    5. Practice—section 6 of Act construed. This section which provides that no judgment in a personal action shall be rendered against a non-resident defendant who has been served out of the county when the action has been dismissed as to a defendant or defendants resident in the county, is not to be construed so as to render the court absolutely powerless to enter a judgment against non-resident defendants even though they consent that the trial shall proceed and the case determined on the merits.
    6. Gambling-—what essential to establish illegality of transactions in grain. In order to establish that transactions in grain were illegal and gambling in character it must be shown by a preponderance of the evidence that the intention not to deliver or receive delivery was mutual and common to the parties to the transaction.
    Assumpsit. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbbiok, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 20, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Henry I. Green and Moses, Rosenthal & Kennedy, for appellants; Joseph W. Moses, of counsel.
    LeForgee, Vail & Miller, Craig & Kinzel and H. Leonard Jones, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit brought to the September term, 1908, of the circuit court of Champaign county against S. L. Rufty and L. J. Lamson, ~W. A. Lamson and L. F. Gates. Service was had upon the defendant Rufty in Champaign county, and upon the other defendants in Cook county.

The original declaration consisted of three special counts, and the common counts. The first special count .charges that on and prior to April 23, 1907, the plaintiff was engaged in the grain business in Tolona, Illinois, and that the defendants were engaged in business in Chicago, Illinois; that at their instance and request, the plaintiff agreed to sell the defendants large quantities of grain, corn, wheat and oats, to he by him delivered to the defendants within a reasonable time thereafter, for which the defendants agreed to pay the reasonable market value; that upon various dates from August 28, 1907, until September 19, 1907, the plaintiff delivered into the hands of the defendants large quantities of grain, which they accepted and received, and that the reasonable market value thereof was the sum of, to-wit, $5,000, which the defendants became bound to pay but which they had refused to pay. The second and third special counts were superseded by the amended counts hereinafter set out. To this declaration the defendants, L. J. Lamson, W. A. Lamson and L. F. G-ates, pleaded the general issue, the Statute of Limitations, and denial of joint liability with the defendant Eufty. At the succeeding term of court, a demurrer to the latter plea was sustained by the court, and leave given to amend the same by the following morning. The court then dismissed the suit as to the defendant Eufty, and entered a rule upon the remaining defendants to plead thereto instanter. The said defendants thereupon entered a written cross-motion, upon their limited appearance, to dismiss the cause as to them, on account of the dismissal as to Eufty, and because of the fact, appearing from the records and files in said cause, that neither of the defendants was found or served in Champaign county, and that the action was not local in that county. This cross-motion was overruled by the court. The defendants, still limiting their appearance, then presented to the court a plea in abatement as to the jurisdiction of the court, and moved in writing for leave to file the same; which plea alleged that before and at the time of the commencement of the said action, they, and each and all of them were, and from thence henceforth had been; and still were, each and all residing in the county of Cook and State of Illinois, and not in said county of Champaign; and that they and each and all of them was and were not fonnd or served with process in said action in said county of Champaign, hut were each and all fonnd and served with process in said action in said county of Cook; and that no process had been served upon either of said defendants in said action in said county of Champaign.

Leave to file said plea in abatement was denied, whereupon the plaintiff filed an amended declaration, consisting of two special counts, the first of which followed substantially the allegations of the second special count of the original declaration, and the second of which corresponded substantially with the third special count of the original declaration. Said amended counts omitted any reference to Enfty as a defendant. The first thereof charged that ‘ ‘ defendants were engaged in business on the Board of Trade in the City of Chicago and were members of an organization known as the ‘Chicago Board of Trade,’ and as part of the defendants’ business they were handling, betting and wagering on the future market price of grain in the said city of Chicago aforesaid, and that defendants on and prior to September 3, 1907, had a branch office in Tolona, Champaign county, Illinois, under the charge, management and control of an agent of the defendants, one S. L. Enfty, who was acting in conjunction with the defendants; that the said S. L. Eufty at said office took and received divers orders from divers customers and patrons living in and about Tolona, Champaign county, in behalf of the defendants, for the wagering and betting on the market price of grain,” etc., “which orders were at the special instance of and for the defendants by said Eufty communicated and addressed to the defendants and by them executed upon the Board of Trade, upon the understanding between the parties; placing the orders in Tolona and the parties dealing upon the Board of Trade in Chicago, that the grain so represented by said orders would not be delivered: * * * that the plaintiff did, prior to the date aforesaid, through the said office at Tolona, enter into a large number of g'aming transactions whereby he made, with the defendants, the pretended purchase and sale of a •large amount of grain, to-wit, one million bushels, delivery of which it was understood and agreed between the defendants and the plaintiff, should not be delivered by the pretended seller nor received by the pretended buyer; that all of said pretended purchases and sales were so made by the plaintiff with the defendants for pretended future dates of delivery, and upon the agreement and understanding that before and at the time set for such pretended delivery, said transaction so existing between the plaintiff and the defendants should be closed out as between them without any delivery of the grain, or any part thereof, and a settlement made between the plaintiff and the defendants solely upon the difference between the price of such grain at the time it was bought and sold in the first instance and afterwards closed out, as shown and disclosed by fluctuations in the alleged market price thereof; that the defendants demanded from the plaintiff, as margins, a large sum of money, to-wit, ten thousand dollars, which the defendants received as and for their own property, and have from thence hitherto held and possessed the same, and by virtue of the said alleged transaction the said money became and was wholly lost' to the plaintiff,” etc.

The second amended count, after making the same preliminary recital as to the business of the defendants • in Chicago and their membership in the Board of Trade, and their opening of a branch office in Tolona for the receipt of orders for and in their behalf for the wagering and betting on the future market price of grain, etc., charged that “said orders were at the special instance of and for the defendants by one of said defendants so stationed at Tolona as aforesaid communicated and addressed to the defendants, to be by them executed upon the Board of Trade in Chicago upon the agreement and understanding between said parties so ordering and the defendants that the grain would not be delivered,” etc.; * * * “that the plaintiff upon said September 1st, 1907 entéred into a large number of transactions, whereby he made the pretended sale and purchase of a large amount of grain, to-wit, one million (1,000,000) bushels, the delivery of which it was agreed between him and the defendants should be made by the seller nor received by the purchaser; that each of said pretended sales and purchases so made were afterwards closed out by the defendants, and that no grain or other commodity was exchanged or delivered as represented in the orders made by the defendants to the plaintiff, but that said transactions were settled upon the differences between the price bought and sold as shown by the fluctuations of the market at the time the transaction was closed; that the defendants demanded from the plaintiff, in the course of such transactions, a large sum of money, as commissions for their services as brokers in and about such transactions, which the plaintiff paid to the defendants in the furtherance of the carrying on thereof, whereby the plaintiff paid to the defendants as such commissions for their services a large sum, to-wit, $5,-134.80, which the defendants received and have since held and refused to pay to the plaintiff,” etc.

After said motions to dismiss for want of jurisdiction, and for leave to file their plea in abatement to the jurisdiction, had been denied, the defendants, pursuant to a rule entered upon them to plead to the amended declaration, on the same day filed the pleas of general issue, and pleas of Statute of Limitations, by one alleging that all the losses occurred more than six months ' prior to the commencement of the suit, and by the other that the said alleged losses, and all of them, occurred more than six months prior to the filing of the amended declaration and that therefore said supposed causes of action were barred by virtue of section 132, chapter 38, of the Criminal Code. A demurrer to the last plea was sustained by the court, and general replications filed to the plea of the general issue and the first special plea of the Statute of Limitations. A bill of particulars was filed with the amended declaration, consisting of the usual copy of the account sued on under the consolidated common counts.

The issues having been joined, a trial was had at the April term, 1910, and a verdict was returned finding the defendants not guilty. A new trial was allowed and the cause continued. The cause was again tried on September 6,1910, and at the conclusion of the evidence offered by the plaintiff, and again at the close of all the evidence, motions by the defendants for a directed verdict in their favor were overruled. Upon motion of the plaintiff, the court then directed the jury to find the issues for the plaintiff and assess his damages at $6,802.55, and the jury thereupon returned a verdict to that effect. The defendants then entered their motion for a new trial, but before the same was heard, they entered their motion in writing for leave to withdraw their motion for new trial, without prejudice to the right to renew the same, and to enter a motion to vacate and set aside the verdict and dismiss the cause for want of jurisdiction. This motion was supported by the affidavits of each of the defendants, which set out that they were each, at the time of the institution of the present action and from thence hitherto had been at all times, residents of the county of Cook, State of Illinois, and that they were not then and never had been residents of Champaign county, Illinois; that they had each and all been served with process in said action in the county of Cook and not in the county of Champaign, and that neither of the affiants, nor said firm of Lamson Brothers and Company, ever had an office or place of business in said Champaign county. The places of residence of each of said affiants were given by street and number, as well as the place of business of Lamson Brothers and Company, in Chicago. All of said motions were overruled. The defendants thereupon moved to dismiss said cause for want of jurisdiction of their persons, and offered in support of said motion the same affidavits. Said motion was likewise overruled. The motion for new trial then coming on for hearing, was overruled by the court. The defendants thereupon renewed their former motion to dismiss said cause for want of jurisdiction of their persons, which motion was likewise overruled. They then moved in arrest of judgment, because of the alleged lack of jurisdiction of the court to render any judgment in said cause against them, by reason of the dismissal of said action as to the defendant Rufty, and their non-residence in the county of Champaign at all times during the pendency of said action, and the transitory nature of the cause of action as set forth in the amended declaration, and offered to read in support of said motion in arrest of judgment, the affidavits filed by them in support of the motion to dismiss. The court overruled said motion in arrest of judgment, and entered judgment upon the directed verdict for $6,802.

It is first urged that upon the dismissal of the suit as to the defendant Rufty, the circuit court was ousted of jurisdiction of said cause as to the defendants, and had no power thereafter to render any judgment in the same; that the court erred in overruling the defendants’ motion for the dismissal of said cause, at the April Term, 1910, for that reason, and in denying leave to the defendants to file the plea in abatement therewith presented. The plaintiff contends that neither the motions nor the affidavits accompanying them are properly in the record, and has filed his motion in this court to have them stricken. It is well settled that motions of the character in question can be made a part of the record only by being incorporated in a proper bill of exceptions. No bill of exceptions showing these matters was presented, allowed or signed at the April term, 1910, at which, the orders excepted to were made, nor is there any order or consent at that term, that such a bill should be signed at any subsequent term. It seems clear, therefore, that these matters have no proper place in the record, and the motion to expunge them therefrom is sustained. Finch v. Furnace Co., 245 Ill. 586.

The defendants admit that if they had simply asked leave to file the plea to the jurisdiction without specifying the character of the plea, or showing in their motion the ground upon which they claimed the right to file the same, the action of the court in depriving them of such right would not be subject to review. They insist, however, that having presented the plea WLth the motion and filed the same, as a part thereof, and having also set out the grounds relied upon in the motion, the matter became a part of the record without the aid of a bill of exceptions. It will suffice to say that the proffered pleas not having been filed, under leave, independent of the motion, can only be considered as a part of such motion, and the motion itself is not a part of the record proper. Village v. Holland, 99 Ill. App. 251; Johnson v. Glover, 19 Ill. App. 585. The record shows that after the overruling of said motions, in response to the ruling of the court requiring them to plead to the amended declaration, the defendants appeared generally and pleaded to the merits, and that the cause then proceeded to trial. No further effort to raise the question of jurisdiction was thereafter made, until after trial. The defendants must, therefore, be held to have by their personal appearance waived the right to object to the canse proceeding against them after the dismissal as to Rufty, unless, as insisted by the defendants, the court was, by reason of said dismissal, wholly without jurisdiction to proceed further, which question could be raised at any time. Counsel rely upon section 6 of the Practice Act,- in support of such position. They urge that the effect of the amendment of 1907 to said section, providing that no judgment in a personal action shall be rendered against a non-resident defendant who has been served out of the county, when the action has been dismissed as to a defendant or defendants resident in the county, is to render the court absolutely powerless to enter a judgment against non-resident defendants, even though they consent that the trial should proceed and be tried on the merits. We regard such contention as without force. While a plea to the jurisdiction, or a motion to dismiss predicated upon the fact that a defendant has been sued in the wrong county, is meritorious, and not merely dilatory, the right being a substantial one, we are not prepared to hold that a judgment entered in 'an action brought in the wrong county is absolutely void under the section referred to. Neither the language of the Practice Act nor the object of the amendment, as we understand it, requires such construction. The sole purpose of such amendment was clearly to provide against the use of dummy defendants to obtain jurisdiction of non-residents. Circuit courts of this state have jurisdiction over the subject-matter of the present action. ■ The defendants thereto were duly served with process. If they desired to raise the objection that the process was served out of the county of the court for which it issued, they should have asserted 'such objection and the right to be sued in the proper county, before pleading to the merits. In this view of the law, the right of the defendants was purely personal, and was waived.

The evidence shows that prior to the year 1907, the plaintiff was in the grain and coal business at Tolona and Allenville, Illinois; that he 'also operated a bank at Allenville, Illinois; that at each of said places he maintained a grain elevator; that he handled through such elevators about five hundred thousand bushels of grain in the course of a year; that he was the owner of property of the value of from thirty to fifty thousand dollars, which, however, he claims was equalled by the amount of his indebtedness. In the early part of 1907 he began dealing with the defendants, consigning cars to them to be sold for him and making purchases and sales of grain through them as his brokers and agents upon the Board of Trade in Chicago; that prior to the month of September, his dealings were carried in one general account, but at that time he requested the defendants to keep three separate accounts with him, to be designated as the “Allenville cash grain account,” “Tolono cash grain account,” and “Tolono speculative account,” respectively. In May, 1907, Bufty who was originally a defendant in this action, and who prior to that time had been acting as the representative of the defendants at Tolono, opened an office at that place. Thereafter the defendants acted as his representatives upon the Board of Trade in Chicago, for the purpose of filling orders for his account received by him from his customers, which orders he transmitted to the defendants over a private wire leased by them. On March 11, 1908, there stood to the credit of the plaintiff upon his cash grain account the sum of $6,802.55, while the speculative account showed a balance against him in excess of that sum. Upon his attention being called by the defendants to such fact, he ordered that the credit balance of the former account be transferred to the latter, which was accordingly done. The present judgment is for the sum so transferred.

It is not controverted that thereafter, between the months of November and April, the plaintiff bought and sold about eight hundred thousand bushels of wheat, two hundred thousand bushels of oats, and about two million bushels of corn, aggregating over three million bushels of grain. Over one-third of the total was bought and sold on the same day. Over two-thirds of the total was closed out in two days. All but one hundred thirty-five thousand bushels was closed out in a week, and with the exception of one transaction involving five thousand bushels, every deal was closed out in two weeks. The magnitude of such transactions, in view of the financial circumstances of the plaintiff, leads to but one reasonable inference, that is that the plaintiff intended and 'understood that the deals in question should be settled by the payment of differences, and it would be impossible for ordinary and reasonable minds to reach a different conclusion. To bring the transactions within the statute, it was necessary, however, for the plaintiff to establish by the greater weight of the evidence, that such intention not to deliver or receive delivery, was mutual and common to both him and the defendants. Pelouze v. Slaughter, 241 Ill. 215.

It is unnecessary for us to determine whether or not the evidence which the court permitted the jury to consider, when taken as a whole, warranted the court in finding as a matter of law, that such was the intention of the defendants, for-the reason that the court improperly excluded competent evidence offered by the defendants and hereinafter referred to, which would have tended to support the contention of the defendants that actual delivery and acceptance was intended by them to be had in each of the transactions. Had the evidence in question been admitted, the trial court could not have, without weighing the evidence, directed a verdict in favor of the plaintiff. The rejected evidence tended to prove that grain of the character ordered, purchased or sold hy the plaintiff and involved in the “speculative account,” was in fact purchased or sold as the case might be, and was represented by warehouse receipts which were to be delivered to the defendants under the rules of the Chicago Board of Trade, when the month for delivery arrived, and by them held for the plaintiff’s account until the respective purchases or sales were closed out in accordance with the plaintiff’s instructions. In the absence of any affirmative evidence of an express understanding or agreement that no deliveries were made or contemplated to be made, the intention of the parties could only be determined from the facts and circumstances surrounding the transaction, and such issue was clearly one for the determination of the jury. The testimony of the witnesses Bennick, Tucker and Smith, as well as the rules of the Chicago Board of Trade, tended, to some extent, to show the intent of the defendants in the transactions, and should have gone to the jury. The mere fact that margins were deposited by the plaintiff with the defendants to protect the transactions in question, or that there were settlements by the payment of differences between the contract price of the purchase or sale and the price at which the commodity of a corresponding character and amount was thereafter either bought or sold, or the fact that some of the purchases and sales were for future delivery, or that they were closed out before the time for future delivery had arrived, did not, as a matter of law, render such transactions void. All of such elements might have been present and the transactions, nevertheless, lawful. Without expressing any opinion as to the probative force or effect of the rejected testimony, we are constrained to hold that the trial judge, to this extent, erred in his rulings upon the evidence.

For the errors indicated, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


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    John J. Dallenbach et al., Appellees, v. Illinois Central Railroad Company, Appellant.
    1. Common carriers-—extent of obligation to furnish cars. If the carrier makes an agreement to have freight cars ready at a particular time it is bound to perform such agreement notwithstanding accident or delay by inevitable necessity.
    2. Common carriers—extent of obligations to furnish cars. In the absence of an agreement to provide ears at a particular time a carrier is only obligated to exercise due diligence to furnish freight cars within a reasonable time after the same have been ordered.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Champaign-county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 20, 1911.
    Rehearing denied November 8, 1911.
    Henry I. Green -and H. Leonard Jones, for appellant; John G. Drennan, of counsel.
    Thomas J. Smith and Charles E. Iungerich, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action by the plaintiffs, partners as Dallenbach Bros., against the defendant, for damages alleged to have been occasioned by the failure of the defendant to furnish cars for shipping sheep from Staley, Illinois, to Chicago. The suit was originally brought before a justice of the peace, and taken by appeal to the circuit court, where a judgment was rendered in favor of the plaintiff, for $100.

One Ludwig acted as agent for the defendant at Staley, and received and transmitted orders for cars and billed out freight. "William Dallenbach, one of the plaintiffs, testified that lie, on December 7,1909, by telephone to Lndwig, ordered two cars to be placed on the side-track, on the following day, and that Ludwig replied that he would let him know; that he went to Staley on the next day and learned from Ludwig that the oars ordered had not arrived. He then requested Ludwig to order an additional car to those already ordered, which order Ludwig immediately telephoned to the proper official. About three o’clock in the afternoon the plaintiffs drove their 'sheep which they desired to ship, into the pens at Staley. At about nine o’clock in the evening, no cars having arrived, the plaintiffs placed the sheep in shelter, where they were fed, and on the following morning, the cars having arrived, shipped them to Chicago.

There is no proof in the record that at the time the cars were ordered on December 7th, Ludwig specifically agreed to have the cars ready on the 8th. William Dallenbaeh, who made the shipping arrangement, does not so testify. Had such agreement existed, the defendant would have been bound to make it good, notwithstanding any accident or delay by inevitable necessity. Grimes v. Railway Co., 142 Ill. App. 532. The court properly instructed the jury that if the defendant exercised due diligence to furnish the cars within a reasonable time after the same were ordered, then the defendant was guilty of no negligence in failing to provide said cars within a reasonable time, and the plaintiffs would not be entitled to recover, but improperly refused to permit the defendant to establish such defense. On behalf of the plaintiffs, the jury was instructed, in substance, that if the defendant agreed to furnish sufficient cars to the plaintiffs in which to haul the sheep at a particular time, then the defendant would not be relieved of liability by furnishing cars within a reasonable time. The latter instructions were not based upon any evidence in tfie case, and were manifestly inconsistent with the one given at the request of the defendant.

For the errors indicated the judgment of the circuit court must be reversed and the cause remanded.

jReversed and remanded.

Mr. Justice Philbrick took no part.


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    W. E. Russell, Appellant, v. Charles E. Moran, Appellee.

      Mortgages—when assumed by grantee. Held, that an assumption of an existing mortgage contained in a deed of conveyance, though ambiguous, upon a reasonable construction obligated the grantee to pay the principal of the notes secured as well as accrued interest and taxes to the date of the conveyance.
    Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholeield, Judge, presiding. Heard in this court at the May term, .1911.
    Reversed and remanded.
    Opinion filed October 20, 1911.
    G. W. Salmans, for appellant.
    H. I. Green, for appellee; W. M. Acton, of counsel.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

The circuit court sustained demurrer to the declaration in this cause. The plaintiff elected to abide thereby. The court thereupon entered judgment in bar of the action and against the plaintiff for costs, whereupon the plaintiff appealed. The only question involved is whether the declaration was obnoxious to demurrer. The material allegations thereof, in substance, are that the plaintiff on December 5, 1908, sold, conveyed and warranted to the defendant certain real estate, for a consideration of $2500, subject to certain mortgages for the sums of $1,000 and $450 respectively, to interest upon the same, and to the taxes then due upon said real estate, which said mortgages, interest and taxes were a part of the purchase price of said real estate; and that the amounts thereof were deducted therefrom and payment thereof assumed by the grantee, the defendant, and that he then and there agreed to pay the same; that said agreement of assumption was inserted in the deed of conveyance of the property, in the following words: ‘ ‘ Subject to two mortgages, one for $1,000 held by the Trustees of Schools, town 23, north, ranges 10 and 11 west, 2 P. M. Also 2d mortgage of $450 to Oliver Morgan on the above described property subject to interest and taxes to date which the grantee assumes and agrees to pay.”-

The declaration further alleges that afterward the holder of the Morgan note and mortgage for $450 took judgment on said note against the plaintiff and his wife, for the sum of $522.37 and costs of suit including attorney fees as provided in said note; that the plaintiff was compelled to and did pay the amount of said judgment, whereby the defendant became liable to pay to him the amount thereof, etc.

It is contended by the defendant in support of his demurrer, that by virtue of the foregoing clause the defendant did not assume and agree to pay the note and mortgage in question; that the averment to that effect contained in the declaration is but a mere conclusion of the pleader, and that the facts averred do not show any liability against the defendant. We are of opinion that while the language is somewhat ambiguous, under a fair and reasonable construction of the clause above quoted, the conclusion that the defendant assumed and agreed to pay the principal of the notes secured by the two mortgages described, as well as accrued interest upon the same and the taxes upon the real estate to the date of the conveyance, is warranted. It follows that when the plaintiff was compelled to pay the Morgan note, the defendant in turn became liable to reimburse him.

The declaration stated a good cause of action and the circuit court erred in sustaining a demurrer to the same.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Town of Georgetown, ex rel. Eugene Quartier, Appellant, v. Oscar McCorkle et al., Appellees.
    Boads and bridges—what not essential to establish highway by prescription. It is not essential that the intention of the owner to dedicate a strip of land to the public be proven before a prescriptive right to the highway can prevail; nowithstanding the intention of the original owners that the road shall be private is shown by their acts, declarations and agreements at the time of laying it out, .yet a prescriptive right in the public obtained by use for the statutory period will not be defeated.
    Action commenced before justice of the peace. Appeal from, the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at' the May term, 1911.
    Beversed and remanded.
    Opinion filed October 20, 1911.
    Lewman & Crayton, for appellant.
    Clark & Hutton, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This proceeding was instituted before a justice of the peace, against the defendants, under sections 71 and 71 of the Eoads and Bridges Act (Eev. Stat. (1909) page 1927). Upon an appeal to the circuit court, a trial by jury resulted in a verdict of not guilty. Judgment was rendered upon such verdict in favor of the defendants, and against Eugene Quartier, the relator, for costs, whereupon the plaintiff prayed an appeal.

The contention of the plaintiff is that the roadway which it claims the defendants obstructed by maintaining a gate across the same, had become a public highway by prescription, while the defendants contend that the same had never been a public highway by prescription or otherwise, and that it was closed by gates or poles placed across the road many years ago; and, further, that even if such road was public, the-gate maintained by them was not in the line of the same.

The preponderance of the evidence, which was conflicting, tends strongly to sustain the contentions of the plaintiff. While the questions of fact were for the jury, and its verdict should not be lightly disturbed, it was essential to a fair trial that it should have been accurately instructed as to the law applicable. The court at the instance of defendants, instructed the jury that the use of a 'strip of ground will be presumed to have been in accordance with the intention of the owner, and when a way is opened as a private pass way, and that fact clearly appears, it cannot be converted into a public highway by the mere use thereof, no matter how long that use may have continued; and, further, that the doctrine of a way becoming a public highway by prescription is only a rule of. presumption for the purpose of determining the intent of the owner of the land and is inapplicable, if, from all the circumstances, an intention to dedicate the land to the public use is not satisfactorily established by the proofs; and although there may be acquiescence, with knowledge of the use by the public, without objection on the part of the owner, it is not conclusive evidence of dedication, for it may be rebutted and all facts and circumstances tending to support or overcome the presumption may be shown and considered by the jury.

It is not essential that the intention of the owner to dedicate a strip of land to the public, be proven, before a prescriptive right to a highway can prevail. The settled rule of law in the 'state is that the intention of the original owners that a road should be private, shown by their acts, declarations and agreements at the time of laying it out, cannot defeat a prescriptive right of the public, obtained by use of the highway for the statutory period. Town v. Gallagher, 159 Ill. 105; Village v. R. Co., 224 Ill. 101. In Ins. Co. v. Littlefield, 67 Ill. 368, cited by defendants, the question of dedication, and not prescription, was involved. These instructions were erroneous and were calculated to mislead the jury in their consideration of the ease.

By the defendants’ fifth instruction the jury were told that the public cannot acquire a right by prescription ; that is, by the user for fifteen years, to travel over a tract of land generally, although a slight deviation of travel from the thread of a road such as to- avoid an obstruction, will not prevent such road being a road, yet that the travel by the public and the right of way must be confined to a specific line or way; and in this case, that if they found from the evidence that the public traveled to the cemetery in question or to the vicinity of such cemetery, generally,—that is indiscriminately,—by various lines of travel, and on other lines of travel than on the piece of land in question and that the travel and the right -of way of the public waa not confined to a specific line or way on the tract of land in question; and that such deviation was not for such purpose as to avoid an obstruction on the tract of land in question, -that in such state of proof, the fact thalt the public may have traveled to such cemetery or the vicinity thereof, and to reach such cemetery and vicinity thereof, and at times may have passed over the tract of land in question, that such occasional use by the public of the tract of land in question, in itself would not make the same a highway or public road by prescription.

The objection to this instruction is that it states the law to be that if the jury found from the evidence that the public traveled to the cemetery by other routes and such travel was not confined to the specific line occupied by the road in question, then there could be no presumption of user. The fact that the cemetery could be and was reached by other routes, was not proper to be taken into consideration in determining whether the public had obtained a prescriptive right to the road in question by user of more than fifteen years. “The test whether a road is public or private is not simply how many persons actually use it, but how many have a free right in common to use it. ’ ’ Town v. Gallagher, supra. Where a highway is claimed by prescription, if a certain and well defined line of travel is shown, it is sufficient., without regard to the number of persons using it. Poole v. City, 238 Ill. 305, is not in conflict with this view.

By defendant’s sixth instruction, on the question of abandonment of a public highway, the jury were told that if the public has ceased to travel a road and acquired another which accommodates the public travel, an abandonment of the first road may be fairly presumed; that the highway commissioners are invested with the right to decide between the relative advantages of the two roads, and if they believe the one substituted for the other is preferable and adopt and improve the substituted road as the public highway, their decision is sufficient, and that where a highway has ceased to be used and another is acquired in its place with the consent and approval of the public authorities, and the use of the original highway has ceased for a sufficient length of time to clearly indicate an acceptance by the public of the new highway, the old one will be regarded as abandoned. It is not thq law that abandonment of a public highway by user is within the sound discretion of the highway commissioners. “It is user by the public which creates a highway by prescription, and the question whether the highway authorities did or did not, at any particular time, regard the road as a public highway, is of no consequence.” Road District v. Beebe, 231 Ill. 147.

The third instruction given for the plaintiff, which attempts to define what is meant by a preponderance of proof, is incorrect, argumentative and misleading, and should not have been given.

Because of the error in giving the foregoing instructions, the judgment of the circuit court must be reversed and the cause remanded.

Reversed and remanded.


author: Mr: Justice Puterbaugh

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    George W. Sisson, Defendant in Error, v. Eagle Packet Company, Plaintiff in Error.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence where not clearly and manifestly so.
    Action commenced before justice of the peace. Error to the Circuit Court of Scott county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 20, 1911.

      J. M. Riggs, for plaintiff in error.
    F. C. Funk and J. A. Warren, for defendant in error.
   Mr: Justice Puterbaugh

delivered the opinion of the court.

The plaintiff brought suit against the defendant in attachment, before a justice of the peace. In the circuit-court, where -the cause was taken on appeal, judgment was rendered upon the verdict of a jury in favor of the plaintiff for $14.77 and costs. The defendant appeals,

The evidence shows that the plaintiff placed in pens on the wharf at Naples, thirty-nine hogs, for shipment upon the Bald Eagle, one of the defendant’s steamboats; that at the same time several other persons placed other lots of hogs in other pens for the same purpose; that when said hogs were being loaded upon the boat by the servants of the defendant, one of them escaped, and in the endeavor to recover the same it became so heated that it died shortly after being captured. The evidence further discloses that the hog in question was not one of the lot belonging to the plaintiff, but was one of those owned by one Merriman.

It is insisted by the defendant that the verdict and judgment were unwarranted for the reason that Merriman was guilty of contributory negligence in shipping his fat hogs during the excessively hot weather then existing, and further, that inasmuch as the hog was the property of Merriman and not of the plaintiff, the latter cannot sustain this action. We think the jury were warranted in finding, under the evidence, that the plaintiff had such a qualified or special property in the hog as to warrant a recovery by him for the loss thereof. Merriman testified that he authorized the plaintiff to ship the hogs to market the same as his own, to care for them and to account to him for the returns ■when they were sold; and further, that he made no claim against the defendant for the loss of the hog. In this he is corroborated by the defendant. The mere fact that the hogs were kept in separate pens both at Naples and while on the boat, we do not think is sufficient to warrant our disturbing the finding of the jury upon this question. Whether the death of the hog was caused by the negligence of the defendant, or solely or in part by the negligence of the plaintiff or Merriman, were also questions of fact, and the findings of the jury not being clearly unwarranted, we are not at liberty to disturb the same.

We find no'prejudicial error in the rulings of the court upon the admissibility of evidence or the instructions.

The judgment is affirmed.

Affirmed.


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    Robert H. Smith, Appellant, v. John W. Talbott, Appellee.
    Statute of frauds—when no defense. A purchaser of land who verbally assumes and agrees to pay a mortgage cannot successfully invoke the Statute of Frauds where he has obtained possession of such land under a deed intended as a conveyance notwithstanding such deed of conveyance does not correctly describe the land in question.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 20, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Walter V. Dysert, Lewman & Crayton, and Edwin Winter, for appellant; James C. Woodbury, of counsel.
    Acton & Acton, for -appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit for the recovery of damages arising from an alleged breach of an oral contract between the parties. To the declaration the defendant pleaded the general issue and the Statute of Frauds. A demurrer was overruled to the latter plea, and the plaintiff electing to abide by his demurrer, the court entered judgment in bar of action and against the plaintiff for costs.

The material allegations of. the first count of the declaration are that on March 12, 1906, the plaintiff received a deed of conveyance for certain lands which are specifically described in the declaration; that said deed of conveyance contained the following clause:

“This deed is made subject to a mortgage of Twelve Hundred ($1200.00) Dollars, payable to Amelia J. Fuller, and also mortgages to the amount of Twelve Hundred ($1200.00) Dollars payable to Talbotts which the grantee herein agrees to assume and pay, situated in the County of Vermilion and State of Illinois, releasing and waiving all rights under and by virtue of the homestead exemption laws of this state. ’ ’

That on June 30, 1907, the defendant purchased the above described premises under a parol agreement with the plaintiff, for the consideration of one dollar and the parol assumption and agreement by the defendant to pay and discharge all liens and encumbrances upon said real estate, which at that time amounted to $3,000; that pursuant to said agreement, and at the defendant’s request and procurement, his wife, Amanda Talbott, was named as grantee in the deed, which plaintiff then made and delivered to the defendant; that in said deed the property was incorrectly described; that the defendant accepted said deed as a conveyance of the premises first above described, and went into and continued in possession of said premises under said parol agreement, paid taxes thereon, certain interest upon the encumbrances thereupon, and received the rents and profits arising therefrom. The declaration further alleges that for the purpose of correcting the erroneous description in said deed to Amanda Talbott, the plaintiff, before the commencement of this suit, made and executed, and tendered to the defendant a deed correctly describing the premises and containing the following clauses:

“The grantee hereby assumes and agrees to pay alT liens and encumbrances on said real estate, and_ the grantee is to receive all rents on said above described premises accrued since January 1, 1907.”
“This deed is made to correct the description contained ifi a deed from the grantors to the grantee under date of June 3, 1907, filed‘June 4, 1907, recorded in volume 208, page 130, of the records of Vermilion County, Illinois, and for the express purpose of conveying all right, title and interest of grantors in and to the premises above described to the grantee as was intended by both grantors and grantee in said former deed as of the date of said former deed, June 3, 1907.”

That the defendant refused to accept said latter deed; that the said mortgage liens upon said premises were not discharged; that decrees of foreclosure were entered thereon, the property sold, and a deficiency decree entered against the plaintiff, by reason whereof the plaintiff was compelled to pay the amount then due on said liens. The second count is, in substance, the same as the first, except that it alleges as a basis of recovery, that the contract was made by the defendant as agent of his wife, and that he had no authority to make the contract.

It is urged by counsel for defendant, in support of the judgment, that the Statute of Frauds presents a' good defense to the present action at law; that to avoid the effect of the Statute-of Frauds in an action at law, the contract must have been fully executed on one side at least. They admit that where real estate is purchased by verbal agreement, and a deed has been executed correctly describing the land, and has been accepted by the grantee, a verbal agreement to pay a mortgage as a part of the consideration is good, and may be enforced by either the grantor or holder of the mortgage, but insist that in the absence of a correct legal description of the property in the deed in question, such deed did not operate to convey the legal title, and was a nullity. It is true that where the premises are so described in the deed that they cannot be identified, the conveyance is void; but it is otherwise where, as in the present case, the grantee has gone into possession and the parties have thus given a construction to a contract by the manner in which they have executed it, whereby the objection of uncertainty is removed. Purinton v. R. R. Co., 46 Ill. 297; Hayes v. O’Brien, 149 Ill. 403. The purchaser of land who assumes and agrees to pay a mortgage, cannot avoid liability on the ground that by reason of a mistake in the description of the premises he acquired no legal title, where he had already obtained possession of the premises and could have had the mistake corrected. 15 Am. & Eng. Enc. 836; 20 Ibid. 1001; Rowlan v. Garman, 19 Am. Dec. (Ky.) 514.

The facts alleged in the declaration, which in considering the sufficiency of the plea of the Statute of Frauds, must be-taken as true, are that in pursuance of the verbal agreement, the plaintiff made and delivered to the defendant a deed of the premises agreed to be conveyed, and that said deed was accepted by the defendant as and for a conveyance of the premises; that the defendant went into possession, collected rents, paid taxes, and as a part of the consideration paid the interest upon the mortgages which he assumed, and which constituted the sole consideration for the conveyance. Nothing then remained to be done pursuant to the contract, except the further performance on the part of the defendant by paying the mortgage encumbrance. "We are of opinion that there was a sufficient performance of the contract to render the Statute of Frauds unavailing as a defense to the 'cause of action stated in the declaration, and that the demurrer to the special plea should have been sustained. By tendering a correct and sufficient deed, the plaintiff fully performed on his part. Nothing further remained to be done on the part of the defendant except to pay the consideration. It is the rule that when a verbal contract for the sale of land has been executed on one side and the purchaser has received a deed for the premises, the Statute of Frauds has no application, and the vendor may recover for the unpaid purchase price. McDonald v. Crosby, 192 Ill. 283; Knight v. Collings, 227 Ill. 348. We think such consideration is recoverable in the present form of action.

The judgment of the circuit court is reversed and the cause remanded for further proceeding not inconsistent with the views herein expressed.

Reversed and remanded.


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    A. G. Kaufman, Appellant, v. H. W. Sorrels, Appellee.
    1. Accokd and satisfaction—when established. “The principle that a liability cannot be discharged by payment and acceptance of a less sum, applies only to a payment -in money. A valid accord and satisfaction takes place where some specific article of personal property or a conveyance- of real property is accepted in satisfaction of the demand. This is true irrespective of the intrinsic value of the property. The fact that the property was of less value than the demand, or that it is of very small value as compared with the claim for which it was accepted, is immaterial.”

      2. Public policy—parties to illegal transaction. Where two or more parties engage in a fraudulent transaction to injure another, neither law nor equity will interfere to relieve either of the parties as against the others, from the consequences of their own misconduct.
    Assumpsit. Appeal from the Circuit Court of Douglas county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed October 20, 1911.
    Andrew L. Chezem and J. M. Newman, for appellant.
    Charles Gf. Eckhart, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

In an action to recover the value of certain merchandise alleged to have been sold and delivered by the plaintiff to the defendant, the court found the issues for the defendant, and rendered judgment in bar of action and for costs. The plaintiff thereupon appealed. To the declaration the defendant pleaded the general issue and. a special plea of accord and satisfaction, alleging that the defendant delivered and the plaintiff accepted certain goods in satisfaction and discharge, to which the plaintiff replied denying a return of the goods mentioned.

The facts involved, so far as we deem it necessary to state them, are that on July 30, 1910, the defendant was indebted to the plaintiff, a distiller, in the sum of $1303.83, being the balance due for liquors, cigars and other merchandise theretofore purchased by biro at various times from the plaintiff. About this time the defendant had upon hand a stock of liquors, etc., and had rented a room in Mattoon, to be used as a saloon, from one Knight, for the term of three years, the plaintiff guaranteeing the payment of the rent. While an application by.the defendant to the city council, for a license to conduct a saloon, was pending, an ordinance was adopted placing the premises referred to without the territory in which saloons were to be permitted. The defendant was thus unable to use the premises for saloon purposes, and Knig’ht, his landlord, levied a distress warrant upon his stock of liquors, etc., for unpaid rent due him.

The evidence introduced by the defendant tends to show that thereupon the plaintiff, through one Shelby, his agent, then agreed that if the defendant would turn the merchandise over to one Manuel, the plaintiff would release him from further liability upon his indebtedness, and that thereupon Shelby prepared an order, addressed to the defendant, for the merchandise, which order was thereupon signed by Manuel; that such order was accepted and acted upon by the defendant, and presented by Manuel to Knight, who refused to release his attachment lien upon the merchandise, unless he should be furnished with a forthcoming bond; that Manuel, for the purpose of showing that the merchandise was in his possession, procured a bill of sale for the merchandise to be signed by both plaintiff and defendant, and was thereby enabled to obtain surety upon the forthcoming bond demanded, and the merchandise was delivered to Manuel. The evidence further shows that afterward, upon two occasions, the plaintiff demanded payment for the merchandise from Manuel, but made none upon the defendant until the institution of the present suit.

The plaintiff’s version of the transaction is that the bill of sale was executed merely for the purpose of aiding Manuel in procuring surety upon the forthcoming bond, so that the goods might be relieved from the lien of Knight’s attachment for rent. He denies that there was ever any actual transfer, delivery, surrender or acceptance of the goods in discharge and payment of the indebtedness here involved. Shelby, the agent for the plaintiff, testified that the goods represented by the bill of sale, were at the time “in a building owned by Bill Knight and he sued for rent and Sorrels couldn’t give bond in Coles county and Manuel could, so this was made out to show the man Manuel was going to have go on his bond that he had the goods in his possession so he could give bond there and get the goods loose, or get them out so he c.ould get hold of them. ’ ’

It is manifest that if the evidence warrants the contention of the defendant, that the goods were returned to the plaintiff and by him received, in full accord and satisfaction of the indebtedness, the present judgment was warranted. “The principle that a liability cannot be discharged by payment and acceptance of a less sum, applies only to a payment in money. A valid accord and satisfaction takes place where some specific article of personal property or a conveyance of real property is accepted in satisfaction of the demand. This is true irrespective of the intrinsic value of the property. The fact that the property was of less value than the demand, or that it is of very small value as compared with the claim for which it was accepted, is immaterial.” 1 Cyc. 335-6. If, on the contrary, the plaintiff’s version of the transaction be accepted, he nevertheless cannot recover. The only purpose of the transaction could have been to deceive the person whom Manuel proposed to procure as surety upon the forthcoming bond, by leading him to believe that the property belonged to Manuel, and thereby induce him to become surety, when otherwise he would not have done so. The transaction was thus clearly fraudulent, and the rule that where two or more persons engage in a fraudulent transaction to injure another, neither law nor equity will interfere to relieve either of the parties as against the others, from the consequences of their own misconduct, is applicable. Cook v. Meyers, 166 Ill. 282. Upon either theory the judgment of the circuit court was proper, and it will be unnecessary for us to determine which was the correct one.

The judgment of the circuit court is 'affirmed.

Affirmed.

Mr. Justice Philbrick took no part.


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    The People of the State of Illinois, ex rel., Plaintiff in Error, v. John L. Kirkpatrick, Defendant in Error.
    1. Residence—how question of determined. The intent of a party forms a large element in fixing his residence. Such intent can only be determined by the aets and declarations of the person. If, however, such acts and declarations are inconsistent, the acts will control.
    2. Municipal corporations—when alderman disqualified. A person elected as alderman is not eligible to serve if at the time of his election he was not,' and for one year prior thereto had not been, a resident of the ward for which he was elected.
    Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed.
    Opinion filed October 20, 1911.
    Richard S. Dyas, Prank E. Shopp and Albert C. Anderson, for plaintiff in error.
    H. S. Tanner and Prank T. O’ITair, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an information filed by the state’s attorney of Edgar county, charging that the defendant was unlawfully uhsurping the office of alderman of the first ward in the city of Paris; that said defendant based •his right to said office upon an election for alderman held on April 19,1910; that the said defendant had not been a resident of the city of Paris for one year next preceding the said date, and was therefore ineligible for said office; that althongh so ineligible, the defendant took the oath of office, and was then acting and claiming to be an alderman as aforesaid. The petition prays that the defendant show by what authority he exercises the right to said office.

A general demurrer to the information was overruled, and the defendant interposed a plea thereto, alleging that he was an elector of said ward in said city of Paris on April 19,1910, the date of his election, and that he had resided in said city more than one year next prior to said election. Replication was filed to said plea, and upon the issue thus formed the cause was tried by a jury. At the close of the evidence a motion to direct the jury to find the issues in favor of the People was overruled, and the jury found the issues for the defendant. Judgment was entered in favor of the defendant and against the People in bar of action and for costs.

The evidence shows that Kirkpatrick, prior to June, 1907, was a resident of and a legal voter in the city of Paris, residing in the fourth ward; that during that month he removed to his farm outside of the limits of said city, where he continued to live until February, 1910, when having sold his farm, he returned with his family to the city and took up his residence in the first ward; that on April 19, 1910, he was elected to the office of alderman in said ward and on May 2, 1910, took the oath of office, and that since said time he had been acting as alderman. It appears from the testimony of the respondent that he lived in the fourth ward, and in the spring of 1907, together with his wife, moved from that ward to a farm which he purchased in 1906; that he lived in a tenant’s house until the tenant moved out, and then in the principal house; that he owned no property in Paris, having sold his home, except some vacant lots in the first ward, which were still vacant; that all the time he was living on the farm he claimed to be a citizen of the second ward, in which he had not resided when he moved ont 'to- the farm; that he did not claim residence in any particular ward but claimed it “generally” in the second ward, but didn’t know where; that while he lived upon the farm in 1907, he bought groceries in Paris and took them out home; that he had no place he called home in Paris during that time; that when there he stopped with relatives or friends, and always returned “home” as he termed his residence on the farm; that he had an intention some time of returning to Paris, but did not know when he would return if ever he did; that if he could sell the farm at a profit he intended to return to Paris.

The intent of a person forms a large element in fixing his residence. Such intent can be determined only by the acts and declarations of the party. If, however, such acts and declarations are inconsistent, the former must control. There is no evidence other than the declarations of the defendant, tending to show that he retained his residence in the city. His acts all showed the contrary, and were inconsistent therewith.

Paragraph 33 of the Cities and Villages Act, Rev. Stat. (1909) p. 339, provides that “No person shall be eligible to the office of alderman, unless he shall be a qualified elector and reside within the ward for which he is elected * * Paragraph 77 of the same act provides that “No person shall be eligible to any office who is not a qualified voter of the city or village and who shall not have resided therein at least one year next preceding his election or appointment. ” Rev. Stat. (1909) page 350. It is urged by the defendant that inasmuch as paragraph 33 is a particular Statute, it must govern to the exclusion of paragraph 77, which is general in its .nature. Both of the paragraphs in question were enacted at the same- time, in 1872, and must be construed together if possible. It is provided by paragraph 72 of said act, that the mayor and members of the city council shall be regarded as officers within the meaning of the act. It must therefore be held to apply to all officers without exception other than the city attorney and city engineer. It certainly relates to the office of mayor, because there is no other section of the act prescribing the qualifications for such office. We think that such paragraph is applicable to the office of alderman. There is no inconsistency between the same and paragraph 33, which merely requires that in addition to the qualifications prescribed by paragraph 77, aldermen shall reside in the ward for which they are elected.

The theory upon which the cause was tried in the circuit court, to wit: that the defendant, in order to be eligible to the office of alderman, must have been a resident of the city for at least one year prior to his election, was therefore the proper one. We are of opinion that the jury were clearly unwarranted by the evidence in finding this issue in favor of the defendant, and think the court should have directed a verdict in favor of the plaintiff at the close of all the evidence.

The clerk will incorporate in the judgment of this court the finding that the defendant had not been a resident of the city of Paris for one year next preceding the date of his election to the office of alderman, on April 16, 1910.

Reversed.


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    James I. Houseweart et al., Appellants, v. Edward Doocy et al., Appellees.
    1. Roads and bridges—duty of highway commissioners. The duty to keep roads and bi'idges in ordinary repair is primarily imposed upon the commissioners, notwithstanding such duty is secondarily delegated to overseers to be appointed by such commissioners. If the overseers fail to act the commissioners must assume the responsibility.
    2. Roads and bridges—when payment to commissioners is to he made from town funds. If overseers appointed by the commissioners fail to make repairs according to their duty and the commissioners themselves make such repairs they are entitled to be compensated and their compensation is properly to be paid not out of the special road and bridge fund but out of the town fund.
    Bill in equity. Appeal from the Circuit Court of Pike county; the Hon. Gut R. Williams, Judge, presiding. Heard in this court at the May term, 1911.
    Affirmed.
    Opinion filed November 2, 1911.
    L. T. Graham and William Mumeord, for appellants.
    W. E. and A. Clay Williams, for appellees; Edward Doocy, pro se.

   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decrée of the circuit court dismissing for want of equity a bill filed by a number of taxpayers in the town of Pittsfield, in Pike county, against the supervisor and custodian of the town fund of said tpwn, the commissioners of highways of said town,' the town of Pittsfield, and the First National Bank of Pittsfield. The purpose of the bill was to enjoin the supervisor from paying out of the town fund certain warrants theretofore issued to said commissioners of highways.

The controversy arises out of the following facts: The defendants, commissioners of highways of said town, each presented a claim to the board of town auditors to be allowed against the town fund, for eighty-eight days’ labor as highway commissioners at the rate of two dollars a day. The claims were allowed, and there being no money in the hands of the supervisors, town warrants issued for the same, in anticipation of the town fnnd which would come into the hands of the supervisors several months thereafter. The evidence shows that the claims in question were for work done on the road by said commissioners, which the law contemplates shall be done by overseers. It further appears that each of said commissioners appointed one or more overseers in his district, but that said overseers so appointed entirely failed and neglected to perform their duties. The chancellor was not unwarranted in finding that the commissioners acted in good faith in attempting to induce the overseers appointed by them to act and that failing in this they acted themselves. The principal question here involved is whether or not said highway commissioners should be paid out of the road and bridge fund, which is levied and raised for the purpose of realizing funds with which to make repairs on roads and bridges, or whether they are entitled to be paid in their capacity as highway commissioners, out of the town funds.

Section 2 of chapter 121, Revised Statutes, entitled “Roads and Bridges,” provides that “the Commissioners of Highways shall have charge of the roads and bridges of their respective towns, and it shall be their duty to keep the same in repair, and to improve them so far as practicable.” Section 3 provides that “they may divide the work, let contracts, appoint overseers, employ laborers or such other agencies as they may deem expedient and most to the interest of the town.” By section 90, the statute also provides for the appointment of overseers, and by section 91 prescribes the duties of such overseers; that among other duties, the overseers shall “repair and keep in order the highways within their several districts for which they shall have been appointed,” “shall warn all persons from whom road labor is due to work on the highways,” etc.; “shall collect all fines and commutation money, and execute all lawful orders of the commissioners of highways, ’ ’ and ‘ ‘ shall deliver to the town clerk the list of inhabitants who are liable to work on highways.” By section 95 of the same act, it is provided that “if the overseers of highways fail to perform their duties, the commissioners of highways shall have power to perform such duties, or cause the same to be performed under such rules as they may prescribe. ’ ’ Section 108 prescribes the manner and method of giving notice and warning men to work on the roads, furnish teams, implements, etc., and provides that they shall perform their work “agreeable to the directions of such overseer of the highways,” and concludes with the proviso, “If the overseers of highways fail to perform their duties, the commissioners of highways shall have power to perform such duties or cause the same to be performed under such rules as they may prescribe.”

By reference to the foregoing sections of the statute it will be observed that the duty to keep roads and bridges in repair and order is primarily imposed upon the commissioners and that notwithstanding such duty is secondarily delegated to overseers to be appointed by such commissioners and paid out of the road and bridge fund, the latter are not thereby wholly relieved from responsibility. Their general duty in this respect is a continuing one and in the event of a failure of the overseers to act the commissioners must assume the responsibility which still rests upon them, and if they fail to do so they are subject to a penalty. Inasmuch as the statute provides that the compensation of overseers shall be paid out of the special road and bridge fund and their claims therefor audited by the commissioners it is manifest that if the latter are paid at all for performing the duties of superintendence devolved upon them by the failure of the overseers to act, it must be from the town fund and as commissioners and not as overseers. Otherwise they would be called upon to audit their own claims which neither the law nor public policy would tolerate. It cannot be that they were legally bound to render the services cast upon them, and which the evidence discloses they performed, without compensation. It follows necessarily that they are entitled to and must be paid out of the town fund. If it be true, as contended, that the effect of the law is to impose upon the town a burden which should in fairness and equity be borne by the road and bridge fund, relief should be sought from the legislature rather than the courts. The findings and decree are in accordance with the foregoing views and are fully warranted under the law.

The decree of the circuit court is therefore affirmed.

Affirmed.