author: Wall J.

text:
    David A. Watts et al. v. John W. McCleave et al.
    1. Judges — Vacation time. — Judges can exercise no judicial functions in vacation, unless they are specially authorized to do so by statute.
    2. Injunction — Making new parties defendant in vacation.— A bill to enjoin the collection of a special school tax, which, it was charged, had been illegally levied by the' school directors. The township collector, county treasurer and school directors we,re made parties defendant. In vacation, persons not parties to the bill appeared before the judge in a county other than that in which the suit was pending, and alleged that they were interested in the subject-matter, and were permitted to become defendants, and, upon their motion, the original defendants not appearing, the injunction was dissolved. Held, that this action by the judge in vacation was without authority.
    8. School directors — Levying tax. — Where a bill averred that the school directors had caused to be levied a certain amount as a special school tax for building purposes, without having received authority to do so by a vote of the people of the district as provided by law. Held, that it was error to dismiss such bill. Even if the answer of the parties improperly made defendants might be considered as a pleading, it afforded no sufficient reason for dismissing the bill.

      Appeal from the Circuit Court of Lawrence county;
    Opinion filed April 6, 1885.
    This was a suit in chancery in the Circuit Court of Lawrence county, the bill being filed by the appellants to enjoin the collection of a special school tax which it was charged had been illegally levied by the school directors of the district in which the complainants were residents and taxpayers.
    It was averred in the bill that the directors, in violation of the statute, had caused to be levied the sum of $691.35, as a special school tax for building purposes, without having received authority to do so by a vote of the people of the district as provided by law. That the certificate of levy was not filed with the proper officers as required by law; that the tax had been extended upon the tax book, and that said tax book, with a warrant for collection, was in the hands of Stoltz, township collect- or, who was about to enforce the collection of the same. The township collector, county treasurer and the school directors were made parties defendant to the bill; a temporary injunction was obtained upon the order of the Hon. C. S. Conger, one of the judges of the second judicial circuit, and was issued March 10, 1884, and duly served the following day.
    On the 21st day of May, 1884, notice in writing was given to thesolicitor of the complainants, by Lafayette McLean, John S. Hart, William Daniels, Noah Lindsay, and T. L. Jones & Son, that on the 31st day of May, 1884, they would apply to the Hon. T. S. Casey, one of the judges of the said circuit, for leave to be made parties defendant to said suit, and leave being granted, would then file answers and move for a dissolution of the injunction. On the 10th day of June, 1834, the complainants, by their solicitor, and the said McLean and others mentioned in «aid notice, appeared before J udge Casey, at chambers, in Mount Vernon, and upon the petition of said McLean and others the order was made granting them leave to become defendants to the bill, and they having filed their answer, moved to dissolve the injunction, which motion, after -rgument by counsel, was allowed by the judge and the injunction dissolved accordingly.

      The answer by these newly made defendants alleges that the levy referred to in the bill was made for the purpose of paying certain judgments, held by said defendants against the said district, giving names, dates and sums. Avers that the taxes were lawfully levied for a lawful purpose; denies that any vote was necessary to authorize the levy, but does not deny that the levy was for the specific purpose charged in the bill, and avers that the original defendants in the bill, the collector, treasurer and directors, are colluding with the complainants, and are not making their proper defense to the bill. The answer is sworn to, and appears to have been filed May 22, 1884.
    At the August term, 1884, of the Circuit Court of said Lawrence county, default was entered against the original defendants for want of answer, and it was moved on behalf of the complainants that a decree be entered for a perpetual injunction, which motion was by the court denied, and a decree was entered dismissing the bill at the cost of complainants.
    The case is brought here by appeal, and error is assigned upon the order entered in vacation, allowing new parties to be made and dissolving the injunction, and upon the action of the court in refusing the motion for a perpetual injunction, and in dismissing the complainants’ bill.
    Messrs. Bell & Green, and Mr. William Robinson, for appellants;
    that judges can exercise no judicial functions in vacation, except such as they are specially authorized to do by statute, cited Devine v. People, 100 Ill. 290.
    As to powers of school directors: R. S., Ch. 122, § 48; School Directors v. Fogleman, 76 Ill. 189; Thatcher v. People, 93 Ill. 240.
    Mr. E. Callaghan and Mr. C. H. Patton, for appellees;
    that a party who has a judgment against a school district where the people refuse to vote a tax, must proceed under section 49 of chapter 122 of the statutes, and obtain a judgment and enforce it by a mandamus, cited Beverly v. Sabin, 20 Ill. 357; Thomas v. Urbana School District, 71 Ill. 283; Board of Education v. Neidenberger, 78 Ill. 58.
   Wall J.

It is assigned for error that the circuit judge, in vacation, entertained a petition by McLean and others, who were not made parties to the bill originally, and granted them leave to become defendants to the suit.

It is urged that judges can exercise no judicial functions in vacation, unless they are specially authorized to do so by statute. This is well settled doctrine, but it is insisted by appellees that such power is conferred by Sec. 67, Ch. 37, R. S., which reads as follows: “The several judges of said courts shall have power, in vacation, to hear and determine motions to dissolve injunctions, stay or quash executions, to make all necessary orders, to carry into effect any decree previously entered, including the issuance of necessary writs therefor, to order the issuance of writs of certiorari, to permit amendments in any process, pleading or proceeding in law or equity; any order so made shall be signed by the judge making it, and filed and entered of record by the clerk of the court in which the proceeding is had, and from the date of such filing shall have like force and effect as if made at a regular term of said Court.” In the case of Blair v. Reading, 99 Ill. 600, the Supreme Court had occasion to consider this provision. There a cause in chancery was heard by the judge in vacation by mutual agreement, and it was held that the judge had no power to entertain an application by complainant to dismiss the bill as to one of the defendants, nor to require complainant to answer a cross-bill then filed by said defendant, nor to pass upon the sufficiency of the answer to said cross-bill, then filed by complainant under protest, nor to enter a decree pro confesso against him on his failure to further answer the cross-bill in obedience to a rule placed upon him to answer instanter. In the case of Devine v. The People, 100 Ill. 290, a bill of exceptions had been signed by the judge and filed in the proper offices; afterward, in vacation, at the instance of one of the parties the judge entertained a motion to amend the bill, and it was held by the Supreme Court that he had no power to do so.

In both these cases the court announce the rule above stated, that judicial functions can be exercised by judges in vacation only when authorized by the statute, and seem inclined not to extend the authority by construction or presumption.

In the case before ns the judge was called upon to exercise a judicial function highly important in its character.

Persons not parties to the bill appeared before him in a county other than that in which the suit was pending, and alleged that they were interested in the subject-matter, were permitted to become defendants, and upon their motion, the original defendants not appearing, the injunction was dissolved.

We are of opinion this action by the judge was without authority. Hammack v. Loan & T. Co., 105 U. S. 77.

At the August term of the circuit court then next following, a default was entered as to the original defendants, and the record recites that the complainant thereupon moved for a decree as prayed in the bill, and that on a subsequent day, the court having duly considered said motion, it was ‘‘ordered and decreed by the court that said motion be refused, and that complainant’s hill be dismissed at the cost of complainant,” to which exception was taken.

The record discloses no ground upon which this ruling can be sustained. The bill was good upon its face, there was no, answer by the original defendants, and the answer by the new defendants, which was filed without leave, afforded no sufficient reason for dismissing the bill.

Even conceding that this answer, though improperly upo.n the files, might he deemed efficient as a pleading, it did not deny that the tax was levied for the purpose alleged in the bill, and the cause was not being heard upon any issue between complainants and the newly made defendants. But if, by the course of proceeding, it could be assumed that the irregularity by which the latter came into the case was waived or cured, and that the proceeding is to be treated as a hearing upon the bill and answer, both being sworn to and each being considered as evidence of the facts therein stated, still we think it was error to dismiss the bill.

The statute provides: " It shall not be lawful for a board of directors to purchase or locate a school house site, or to purchase, build, or move a school house, or to levy a tax to extend schools beyond nine months, without a vote of the people at an election called and conducted as required in the forty-second section of this act.” R. S., Chap. 122, Sec. 48.

In the case of School Directors v. Fogleman, 76 Ill. 189, it was held that under this provision it was not within the power of the directors to contract for the building of a school house without such authority from the people; that any orders issued by them for such purpose were void; that there being a want of power to issue such orders, there could be no innocent holders of them, and the fact that the building may have been constructed, accepted by the directors and used for school purposes, would not legalize the act or bind the taxpayers.

The same views were expressed in Thatcher v. The People, 93 Ill. 240. . It would follow, necessarily, that if judgments are obtained in a suit against the directors upon a liability thus improperly incurred, the situation will not be changed so far as the taxpayer is concerned. Not being a party to the judgment his rights can not be affected by it. The decree is reversed and the cause remanded.

Beversed and remanded.

Casey, P. J., took no part in the decision of this case.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Horace Fairbanks et al. v. Henry Malloy.
    1. Contract — Replevin.—A written contract, in which it was expressly agreed that the title to the property should remain in the vendor until full payment was made, and that upon default of the vendee, in performing any of the terms of the contract, the vendors might take posse sion and remove the same and collect reasonable charges for damages and expenses, and until such default the vendee might retain the use and possession of the property, the vendee took the property, used it, and made a partial payment. Upon default in payment, the vendor brought an action of replevin. Held, that the vendor is entitled to recover the possession of the property, according to the terms of the contract, without first tendering the money paid.
    2. Same. — If the vendee, by reason of a breach of warranty or other cause, has a just demand for a return of part or all of the purchase money, the action of replevin is not an appropriate proceeding in which to determine such question. The judgment for the vendor therein does not preclude the vendee from a suit for that purpose.
    Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. Alexander W. Hope, for appellants.
    Mr. George F. McNulty, and Messrs. Wise & Davis, for appellee.
   Wall, J.

This was an action in replevin by the appellants against the appellee to recover possession of a pump and boiler.- The declaration was in the usual form with counts in the cepit and detinet, to which the defendant filed pleas of non cepit, non detinetl&ná property in defendant.

There was a trial by the court, a jury being waived, and a finding for the defendant with judgment retorno habendo and for cost, to which plaintiffs excepted; and they bring the case here and assign error upon the rulings and finding of thacourt.

It appears from the record that the plaintiff sold to defendant a pump and boiler complete on the 7th of April, 1883, for §388, of which §200 was to be paid in thirty days, the balance in one year with interest. On the lltliof May, 1883, the boiler was exchanged for a larger one, for which fifty dollars additional was to be paid, and on the 14th of the same month the pump was exchanged for a larger one, for which seventy-five dollars additional was to be paid. On the last mentioned day the sum of §200 was paid, but no other payments were ever made, and when this proceeding was commenced there was unpaid and due upon these three purchases the sum of §313.

When the first purchase was made, the defendant signed and delivered to the plaintiffs a written contract in the form of an order for the property, specifying the price to be paid, terms of sale, etc., and when the exchanges were made, similar contracts were executed, so that when the last pump was delivered the plaintiffs held three of these contracts, all of which were in the same form, and in each of which are the following provisions: “And it is hereby agreed by the undersigned, that Fairbanks and Company do not relinquish their title to said boiler pump and fixtures, until they are fully paid for; and upon default of the undersigned in performance of any of the terms of this agreement, the said Fairbanks and Company may declare the whole amount agreed to be paid by this contract due and payable, and tliej' or their agents may, without process of law, take possession of, and remove said boiler and fixtures, and collect reasonable charges for damages and expenses.

If the said Fairbanks & Co. find it necessary to place this contract in the hands of an attorney for collection, I or Ave agree to pay all charges and expenses for collecting the same. It is also agreed that the undersigned may retain possession of and use the said boiler and fixtures until he shall make default in the terms of this agreement. The undersigned agrees to furnish lumber to put in foundation and pay freight.

Witness, } Signed, E. C. Parker, f Henry Malloy."

There Avas evidence also that Avhen the first contract of April 7th Avas made the folloAving written Avarranty was given to the defendant.

“ Coal Branch, April 7, 1SS3.

We hereby warrant the pump this day sold to Henry Malloy to be first class in every respect, and to be capable of pumping eighty gallons of water per minute, when in good working condition.

Signed, Fairbanks & Co. Per Hill.

And the defendant was permitted to testify against the obeetion of the plaintiffs, that the contracts of May 11th and 14th were made with an express verbal warranty that the pump and boiler would pump all the water out of defendants coal mine.

He also testified against objection, that plaintiffs knew the purpose for which he wished to use the pump when the first purchase was made, and proved by his own testimony and that of other witnesses, that neither of the pumps nor boiler could be made to work well and perform the service for which he had intended them. On the other hand, the plaintiffs denied that there was any warranty whatever except the written one, and that while they knew the purpose for which the defendant wished to use the pumps, they did not know nor did any one know how much water had to be pumped out; that the mine of defendant was connected with a number of others which had been abandoned by the owners and flooded with water; that neither the area nor supply of water conld be ascertained, and that they advised defendant to get a larger and more powerful pmnp than either of them selected by him, but that he relied upon his own judgment.

They further testified that defendant improperly and unskillfully managed the pumps — suffered the boiler to become coated with scales from the use of impure water and foul with mud, thereby diminishing its power; and that the pump worked well, raising the amount of water specified in the warranty when it was properly handled, going into details which need not be stated here. It appeared also that when the plaintiffs demanded the property the defendant had moved it to another place, was using it for another purpose, and that it had deteriorated in value more than the amount paid on the purchase money.

The important question is as to the construction and legal-effect of this contract. It will be noticed that there was an express agreement that the title to the property should remain in the plaintiffs until full payment was made, and that in default of the purchaser in performing any of the terms of the contract the plaintiffs might take possession and remove the pump and boiler and fixtures and collect reasonable charges for damages and expenses, and that until such default the purchaser might retain the use and possession of the property. Here is a clear and definite agreement between parties competent to make it and there would seem to be no difficulty in enforcing it according to the plain and ordinary meaning of the language employed. It is insisted, however, by counsel for appellee, that this was in effect a conditional sale merely, with a right of rescission in the vendor, and that if such right was exercised it could only be upon placing the vendor in statu quo, which would require a return or offer to return of the purchase money paid. This position, though plausible, we deem unsound when the peculiar facts of the case are considered.

It is true that contracts somewhat like this have been held by our Supreme Court to be conditional sales in which the right of rescission was reserved to the vendor and that such a contract, legal and valid as between the parties, is subject to the risk on the part of the vendor of losing his lien in case the rights of third parties intervene, as by levy of execution against the purchaser, etc. Murch v. Wright, 46 Ill. 487; Lucas v. Campbell, 88 Ill. 448; Latham v. Sumner, 89 Ill. 233.

We think the law is also well settled that in such cases where goods are sold at a fixed price to be paid on a certain day, and delivery is made upon an agreement express or implied that until the price is paid the title is to remain in the vendor, payment is a condition precedent, and until performance the property is not vested in the purchaser, and that the vendor may maintain replevin for the property upon default of payment. It has been suggested by some courts in cases of this sort that this class of contracts may be treated as conditional sales by which the property was not to vest in the purchaser until the price was paid, or as executory contracts to be completed upon the performance of the same condition; but upon either construction the property in the goods is not changed. Benjamin on Sales, 3d Ed., Sec. 320, and note <1 and authorities there cited. It is also a general rule that where one party to a contract desires to rescind it he must place the other in statu quo, but we can not see our way clear to apply that rule in the present case in the manner suggested by counsel. This contract distinctly provides that upon default of payment the vendor may resume the possession of the property, but it does not provide that the vendor shall first return the money paid.

It is clear such a condition was not intended, and as it was not inserted by the parties, it should not be added by the law. To do so would be to do violence to the rights of the parties, and would subject the vendor to a loss in respect of the use and diminished value of the property not contemplated at the time and which it would be unreasonable to impose upon him without his consent. Strictly speaking, his action in retaking the property is nota rescission of the contract but in pnrsuanee of it. The contract so provides, and it was undoubtedly the intention of the parties that the right thus given might be exercised without the condition suggested. For a similar view of such a, contract see Latham v. Sumner, 89 Ill. 233, where the vendor had resumed possession without objection by the vendee and where the latter was seeking to recover the money paid on the contract.

We think the plaintiffs below were entitled to recover the possession of the property according to the terms of the contract without first tendering the money paid. In such cases it may be that by reason of a breach of warranty or other causes the purchaser would have a just demand for a return of part or all of the purchase money, but the action of replevin is not an appropriate proceeding in which to determine a question of that sort, and the judgment for plaintiff therein does not preclude the purchaser from a suit for that purpose. Benjamin on Sales, supra; Preston v. Whitney, 23 Mich. 260; Howe Machine Co. v. Willie, 85 Ill. 333; Latham v. Sumner, supra.

Were it, however, convenient in this form of action to examine and determine the right of the parties in this respect, we are of the opinion that upon the record before us the loss of the plaintiff in the use and depreciation of the property, etc., exceeded the sum paid by defendant, and from this standpoint the finding for defendant was erroneous.- See Latham v. Sumner, supra. It is objected by counsel for appellee that there was no such exception taken by the plaintiff to the rulings of the trial court as will authorize this court to consider the errors assigned. We have examined the record and find in the bill of exceptions that the plaintiffs did, at the proper time, except to the decision of the court, and that the exception so taken is sufficiently formal. D. M. Force Mfg. Co. v. Horton, 74 Ill. 310.

The judgment will be reversed and the cause remanded.

(Reversed and remanded.


text:
    Albert J. Martin v. James Murphy.
    1. Construction op contract. — A promissory note as follows: “Two years after date, I promise to pay to * * * §365.40. It is understood and agreed that if paid before maturity, a discount at the rate of eight per cent. per annum shall be allowed, and if not paid when due, the same rate, eight per cent, per annum shall be added.” Three days before maturity the plaintiff tendered the sum of §315, and demanded the note, claiming that by paying before maturity he should get a discount of the whole amount of interest for two years. Held, that such construction of the contract is manifestly erroneous.
    2. Jurisdiction. — Where defendant sold land to plaintiff, and the deed contained such covenants as to make it the duty of defendant to pay certain taxes, and plaintiff paid the taxes (§11.38), for defendant, the plaintiff can recover the amount before a justice of the peace.
    Error to the Circuit Court of Jasper county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. John H. Halley, for plaintiff in error;
    as to jurisdiction, cited Fowler v. Hall, 7 Bradwell, 332; Kennedy v. Pennick, 21 Ill. 597.
    Messrs. Gibson & Johnson, for defendant in error;
    as to jurisdiction of justice, cited (R. S. 1874, p. 639, § 13.
   Wall, J.

This case originated before a justice of the peace, and was removed by appeal to the circuit court, where, upon a trial by jury, the appellee, Martin, obtained a verdict against the appellant, Murphy, for $61.78. A motion for a new trial being overruled, judgment was rendered on the verdict, and for costs of suit accordingly. The plaintiffs demand consists of two items:- 1st, for a sum of money alleged to have been improperly exacted by the defendant and paid by the plaintiff under protest, upon a promissory note held by defendant against the plaintiff; and 3d, for taxes paid by the plaintiff upon a tract of laud sold by defendant to the plaintiff, As to the first item, it appears that plaintiff bought of defendant the tract of land in question, and in part payment of the purchase money gave his two promissory notes, which were alike except as to amounts and time of payment, the first of which was paid, and the second, in regard to which the present controversy arises, is as follows:

$365.40. Bose Hill, Jasper Go., III.,

April 9th, 1881.

Two years after date I promise to pay to the order of James Murphy, three hundred and sixty-five and 40-100 dollars, without defalcation, for value received. It is understood and agreed that if paid before maturity, a discount at the rate of eight per cent, per annum shall be allowed, and if not paid when due, the same rate, eight per cent, per annum shall be added.

Albert Mártir.

The note was sent to the bank for collection, and on the 6th day of April, 1883, three days before its maturity, the plaintiff tendered the cashier the sum of $315 and demanded the note.

This the cashier declined to accept in payment of the note, and. then the plaintiff paid the face of the note under protest, claiming that he did not owe any interest on the note, because he was ready to pay it a few days before it was due. He states that when he purchased the land it was agreed that the deferred payments should bear interest at the rate of eight per cent, per annum, and the interest was computed and put into the notes as a part of the principal, so that the note in question was for $315, principal and interest thereon at eight per cent, for two years, $50.40, total $365.40.

It is insisted that by the terms of this note as drawn, the plaintiff could, by paying before maturity, get a discount of tiie whole amount of interest for two years.

The court below and the jury adopted this view of the contract, and allowed the plaintiff $50.40 on that account.

This construction is in our opinion erroneous. The discount to be allowed for payment before maturity, was not for the whole period of two years, but as expressly stated, was to be at the rate of eight per centum per annum, so that the plaintiff would be permitted to pay at any time he chose before in aturity, and be chargeable with the agreed rate of interest for the time only that the principal sum was unpaid, and no longer, and if he failed to pay when due, the same rate, eight per cent, per annum was to be added. We are not able to see how any other meaning can be given to the instrument, for the language employed is plain and unambiguous.

It is a general rule that written instruments are not to be modified or contradicted by the contemporaneous parol agreement of the parties in regard to the subject-matter, and this instrument must be construed according to this rule. It is apparent, however, that it was drawn as the parties intended, and its plain construction does no violence to the verbal agreement of the parties as stated by the plaintiff, but is in harmony therewith.

It is unnecessary to consider whether the payment, being made under the circumstances detailed, could be recovered on the ground of duress. It was not improperly exacted, and whether it was paid voluntarily or involuntarily, in a legal sense is not important The other item in plaintiff’s demand was for $11.38, being the amount due upon the property for taxes when plaintiff received the deed. The deed contained such covenants as to make it the duty of defendant to pay these taxes, and the question is whether, having paid them for him, the plaintiff can recover the amount before a justice of the peace. It is insisted the only remedy is by action of covenant, and that a justice of the peace has not jurisdiction of such an action.

By Sec. 19, Ch. 110, R. S., it is provided that any deed or other instrument under seal — penal bonds excepted — may be sued and declared upon in any form of action in which it might have been shed and declared upon if not under seal. Under this provision it lias been held that assumpsit would lie upon a policy of insurance under seal (P. L. I. Co. v. Palmer, 81 Ill. 88), and upon an award under seal (Shawneetown v. Baker, 85 Ill. 563), and no reason is suggested why it would not lie upon a deed for breach of warranty. A justice of the peace has jurisdiction where the demand does not exceed $200 in all cases where debt or assumpsit willlie: Ch. 6; Sec. 13, Ch. 79; also in all actions arising on contracts, whether under seal or not, express or implied, for the recovery of money only.

We are of opinion the justice had jurisdiction in the present case, and that as to the item for taxes paid, the judgment was right, but that for the item for interest plaintiff had no cause of action.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Casey, P. J.

text:
    C. C. Biggs v. P. S. McKenzie.
    1. Exemption laws — Duty op debtor. — It is the duty of the debtor, if he would claim the benefit of the exemption laws, to make a schedule of all his property, subscribed and sworn to by him, and hand the same to the officer.
    2. Same. — The protection given by the statute upon compliance with its conditions, is withdrawn from all property not scheduled, and this independently of any questions of fraud, inadvertence or mis.-take.
    3. Schedule on new execution. — Where appellee made his schedule on an execution, and the same day that the execution was returned "milla bona,” at the instance of the judgment cred.tor another execution was issued. Held, that if appellee claimed the exemption, he must make another schedule on the new execution.

      Appeal from the Comity Court of Franklin county; the Hon. W. H. Williams, Judge, presiding.
    Opinion filed April 6, 1885.
    Messrs. Moyers & Smith and Mr. F. M. Youngblood, for appellant;
    that the schedule must be tendered under each and every execution, cited Right v. Deyoe, 86 Ill. 490; Amend v. Smith, 87 Ill. 198; Blair v. Parker, 4 Bradwell, 409; Cook v. Bohl, 8 Bradwell, 293; Menzie v. Kelly, 8 Bradwell, 259; Camp v. Ganley, 6 Bradwell, 499.
    Mr. C. H. Layman, for appellee,
   Casey, P. J.

This was a suit begun before a justice of the peace by appellee against appellant. The cause was appealed to the county court, when upon a trial a judgment was rendered in favor of appellee for the sum of $200. Appellant vras a constable and as such levied upon and sold property belonging to appellee that it is claimed Avas exempt from execution, and the suit is brought to recover twice the ATalue of the property so sold. The facts are that on the 13th of November, 1883, an execution came into the hands of appellant as a constable, against appellee, for the sum of $82.15. That on the 22d of December, 1883, appellee delivered to appellant a schedule of his personal property. That on the 22d day of January following, appellant had the property mentioned in said schedule appraised as provided by the statute, except the gold watch referred to in the schedule, which at the time of the appraisement could not be found. Appellee claimed that the Avatch had been stolen. The property found by the appraisers Avas valued at $400.75.

On that same day that execution was returned by appellant no property found, and at the instance of the judgment creditors, another execution was issued and placed in the hands of appellant, who proceeded on the following day to make a levy upon the property of appellee, and took possession thereof. The evidence is conflicting as to whether appellee knew that a neAV execution had been issued or not at the time the levy was made. Bat appellee was informed by the justice, during that same day, that the levy was by virtue of a second or new execution. Ho schedule, as provided for by the statute, was made and presented by appellee to appellant after the issue or levy of the new execution. There was ample time in which to have made the schedule, and the evidence strongly indicates that the officer desired appellee to-make the schedule, but he did not do so. It is claimed by appellee that having made his schedule because of the former execution, that the property was exempt from sale under that and subsequent executions. The statute of 1877 provides that where any debtor, against whom an execution writ of attachment or distress warrant has been issued, desires to avail himself or herself of the benefit of this act, he or she shall make a schedule of all of 1ns or her personal property of every kind and character, including money on hand and debts due and owing to the debtor, and deliver the same to the officer having the writ of execution, writ of attachment or distress warrant; which said schedule shall be subscribed and sworn to by the debtor, and any property owned by the debtor and not included in such schedule shall not be exempt as aforesaid. Under this provision of the statute the debtor is required to make and deliver to the officer a schedule of his personal property; and it is not material what amount of personal property he may own, none of it is exempt unless the schedule is made as required by the statute. The statute does not provide that one schedule shall besufficient as between the same creditor and judgment debtor. It does not provide that when a debtor has once made his schedule he shall not be required to make another upon another execution. And that evidently was not the meaning of the legislature. The language of the act is explicit: “Whenever any debtor against whom an execution * * * has been issued, desires to avail himself, he shall make out a schedule, etc.” If we were to say, in this case, that the judgment debtor having made one schedule it was sufficient, we would undoubtedly be enlarging the statute, and to that extent be legislating on the subject. While statutes of this character are to be construed liberally, we are not authorized to go beyond the words and clear intent and meaning of the law makers. The reason why the legislature required a schedule to be made in case an execution should be issued and did not provide that one schedule should be sufficient is obvious. The fortunes of the judgment debtor might change in a day or a week so that he would be enabled to meet his liabilities, and so, doubtless, it was in this case.

We judge so, for the reason that appellee knew, on the day the levy was made, that a second execution had been issued. He advised with the justice of the peace and had ample time and opportunity to make a schedule, and it seems to be admitted that after the trial of this cause before the justice, appellee did claim to appellant to have a pretended schedule which was not sworn to. The paper was not presented to appellant. He was not allowed to take it in his hands unless he would agree in advance to deliver to appellee the property upon which he had levied the execution and for which he was responsible. The case of Blair v. Parker, 4 Bradwell, 409, is in point in this case. In the cause referred to an effort was made to amend the schedule by the judgment debtor. Upon that question the court says in substance that the legislature has not provided for amending the schedule, and continuing, the court says, we have no power to engraft upon the statute any proviso allowing the debtor to select omitted articles where the legislative declaration is that it shall not be exempt.

The protection given by the statute, upon compliance with its conditions, is withdrawn from all property not scheduled, and this independently of any questions of fraud, inadvertence or mistake.

When a party seeks to recover a penalty given by the statute, he must bring himself clearly within the terms of the statute or his action fails.

In the case of Cook et al. v. Bold, it was said that “ it is the duty of the debtor, if he would claim the benefit of the exemption laws, to make a schedule of all his personal property, subscribed and sworn to by him, and tender the same to the officer. Calif v. Thomas, 81 Ill. 478; Hewitt v. Johnson, 72 Ill. 513; Evans v. George, 80 Ill. 51; Ogden v. Kirby, 79 Ill. 555. In this view of the case a number of the instructions given by the court for appellee do not correctly state the law. The judgment of the county court is reversed, and as it appears from the evidence that appellee has no cause of action the case will not he remanded.

Beversed.


text:
    Wabash, St. Louis & Pacific Railway Co. v. Mary J. Mahaffee, Adm’x, etc.
    Fellow servants — Question of fact. — The definition of fellow servants may be a question of law, but it is always a question of fact to be determined from the evidence whether the particular case falls within the definition.
    Appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. Samuel P. Wheeler, for appellant;
    as to fellow servants, cited C. & N. W. Ry. Co. v. Moranda, 108 Ill. 581.
    Mr. John M. Lansden, Mr. D. T. Linegar and Mr. Angus Leek, for appellee;
    cited C. & N. W. Ry. Co. v. Moranda, 108 Ill. 581; C. & A. R. R. Co. v. May, 108 Ill. 288; Elmer v. Lock, 135 Mass.; Wabash Ry. Co. v. McDaniels, 107 U. S. 454; C., B. & Q. R. R. Co. v. Avery, 109 Ill. 314; C., B. & Q. R. R. Co. v. Warner, 108 Ill. 538.
   Casey, P. J.

This was an action on the case, brought by the appellee against appellant in the Circuit Court of Alexander county. The trial of the canse resulted in a verdict against the appellant. The case is brought to this court by appeal.

The first error assigned is that the court erred in giving to the jury the plaintiff’s instructions numbered from one to ten inclusive.

The ninth instruction given for appellee in the circuit court is as follows:

The court instructs you that the said Belton J. Mahaffee, as a brakeman upon the train or trains of the defendant, was not a fellow servant with the said section men of the road or with the said car inspector of the company at Vincennes, Indiana, in such a sense as to prevent a recovery in this case, if the evidence shows that the said Belton J. Mahaffee, without fault or negligence on his part, came to his death by reason of the negligence of the defendant, as alleged in the said declaration or either count thereof.

This instruction was erroneous. Whether they were so cooperating or consociating is a question of fact for the jury and not of law for the court to determine. Wabash Ry. Co. v. Elliott, 98 Ill. 481; Pennsylvania C. Co. v. Conlan, 101 Ill. 93; Chicago & Alton R. R. Co. v. Bonifield, 104 Ill. 223: I. & St. L. R. R. Co. v. Morgenstern, 106 Ill. 216.

The definition of fellow servants may be a question of law, but it is always a question of fact to be determined from the evidence whether the particular case falls within the definition.

In the case of c. & N. W. Ry. Co. v. Moranda, adm’x, reported in 108 Ill. 582, the Supreme Court said, “Under our practice it is not admissible for the court to express any opinion to the jury on questions of fact, and it is no less so because the opinion expressed may be in conformity with a previously expressed opinion of this court upon reviewing a question of fact. Where there is evidence before a jury upon which it is legally admissible, there may be a difference of opinion; it is error to allow any opinion of the judge or court to be obtruded upon the jurors to influence their determination.” In the case of the C. & N. W. Ry. Co. v. Moranda, adm’x, supra, the instruction given in the circuit court on the part of the plaintiff, was as follows:

“The jury are instructed that a man employed by a railroad company in the capacity of a section foreman, having charge and oversight of repairs upon a certain portion of its track, is not engaged in the same line of duty with an engineer and fireman running such company’s locomotive engines, and is therefore not within the rule which exempts the common employer from liability to one of its employes for damages resulting from the fault, carelessness or negligence of a fellow servant or co-employe.”

This instruction is identical with the one given in the case under consideration and was held to be erroneous by the Supreme Court. In tlieMoranda case the court said, “It is essential, not only that the rule shall be given to the jury with substantial accuracy, but also that the jurors shall thereupon be free to form and declare from the evidence before them their opinion upon the question of fact. ”

Other errors are assigned that we do not deem it necessary to discuss, and as the cause must be tried again, we express no opinion as to the facts. For the reasons given the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.

Baker, J., took no part in this case.


text:
    St. Louis, Alton & Terre Haute Railroad Co. v. Martha Andres, by, etc.
    1. Neglect oe statutory duty — Due care. — Before a person can recover on account of the neglect of a statutory duty, it must appear not only that the injury complained of was the result of such neglect but it must also appear that the injured party was in the exercise of due care.
    2. Contributory negligence. — If the negligence of the injured party has contributed to the injury before he can recover, it must appear his negligence was no greater than that defined by the law as slight negligence, and that the defendant was guilty of gross negligence. As the instruction given was not in accordance with the above, it was erroneous.

      Appeal from the Circuit Court of St. Clair county; the lion. William H. Snyder. Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. R. A. Halbert, for appellant,
    Mr. William C. Kueffner, for appellee.
   Casey, P. J.

This was an action on the case brought by appellee against appellant in the Circuit Court of St. Clair county.

On the trial of the cause in that court, the verdict of the jury was in favor of the plaintiff and the cause is brought hereby an appeal. A number of errors are assigned. We do not consider that it is necessary to discuss any of them but the second, which is as follows:

The court orred in giving improper and erroneous instructions for plaintiff.

The sixth instruction given- on the part of the plaintiff is as follows: “The court instructs the jury that if they find from the evidence that the speed of the railroad trains running in the corporate limits of the city of Belleville is, by the ordinances of said city, limited to the rate of ten miles an hour, and that the defendant while running its train in said corporate limits at a greater rate of speed than ten miles an hour run said train over the foot of the plaintiff as alleged in the declaration and inflicted the injury in the declaration complained of, then the defendant is liable for the damages so done to the person of the plaintiff, unless the jury find from" the evidence that the plaintiff was guilty of gross and willful negligence."

We do not think that this instruction states the law correctly, The fact that appellant failed to comply with a statutory duty does not relieve appellee from using ordinary care and caution. In the case of Wabash, St. Louis & Pacific Ry. Co. v. Thompson, reported in 15 Bradwell, 116, it was said that it has been uniformly held by our Supreme Court that before a person can recover on account of the neglect of a statutory duty, it must appear not only that the injury complained of was the result of such neglect, but it must also appear that the injured party was in the exercise of due care. If the negligence of the injured party has contributed to the injury, then before he can recover it must appear his negligence was no greater than that defined by the law as slight negligence, and that the negligence of the defendant was such as the law denominates gross negligence. This decision is based on an opinion of the Supreme Court in, the case of the C., B. & Q. R. R. Co. v. Johnson, Adm’x, 103 Ill. 512, wherein it is said that a failure to observe these statutory requirements is prima facie evidence of negligence, but it does not excuse the injured party from the exercise of due care on his part. The Wabash Railroad Co. v. Henks, 91 Ill. 406. In an action against a railway company for killing a person through negligence, when the proof shows that the train causing the death was running at nearly double the speed allowed by an ordinance of the city, when the accident occurred, and that no signals were given, an instruction limiting a recovery to negligence of the company and freedom of the deceased from negligence materially contributing, is erroneous as keeping out of view the rule as to comparative negligence. Schmidt v. C. & N. W. Ry. Co., 83 Ill. 405. It is indispensable to a right of recovery that the injured party shall have exercised ordinary care, such as a reasonably prudent person will adopt for the security of his person or property, or that the injury be willfully or wantonly inflicted by the defendant.

When the ordinances of a city prohibit railway companies from running their trains at a greater rate of speed than six miles an hour, the running of a train at the rate of fifteen miles an hour, resulting in the death of one wrongfully on the track, will not make the injury willful or wanton on the part of the company. A mere preponderance of negligence on the part of the defendant will not authorize a recovery. When both parties are guilty of negligence, that of the plaintiff must be slight when compared with that of the defendant, and his must be gross. In view of these authorities this instruction was clearly erroneous. The testimony was conflicting and the instructions should correctly state the law. C. B. & Q. Ry. Co. v. Johnson, supra; I. C. R. R. Co. v. Hetherington, 83 Ill. 516; St. L. A. & T. H. R. R. Co. v. Pflugmacher, 9 Bradwell, 303; Missouri Furnace Co. v. Abend, Adm'r, etc., 9 Bradwell, 321.

For the foregoing reasons the judgment of the circuit court is reversed and the cause remanded.

Judgment reversed.

Wall, J., took no part in this case.


text:
    Burlington Insurance Co. v. Jacob Wzieck.
    1. Verdict contrary to evidence. — The court is of opinion that the verdict in this case is not supported by the evidence, and therefore the case is reversed and remanded,
    2. Evidence — Wife acting as agent. — Where the wife has been acting as the agent of the husband, her statements while acting in that capacity are competent evidence.
    Appeal from the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. W. H. Way, for appellant.
    Mr. W. F. Foreman and Messrs. Rountree & Akins, for appellee.
   Casey, P. J.

This cause was begun before a justice of the peace in the name of appellee and Catharine Wzieck, his wife, where a judgment was rendered against appellant for the sum of two hundred dollars. The suit was appealed to the circuit court, when, upon motion and after the trial had begun, the plaintiff was allowed to amend the process by striking out the name of his wife, Catharine Wzieck. Upon atrial in the circuit court before a jury, a verdict was returned against appellant for the sum of two hundred dollars. A motion for a new trial was interposed by appellant, which was refused by the court and judgment rendered for that sum. Exceptions were taken to the ruling of the court and the case is brought to this court by appeal. The fourth error assigned is that the court erred in refusing the defendant’s motion for a new trial, and one of the causes alleged for which a new trial should have been granted is that the verdict was not sustained by the evidence. We think this point well made. The suit is brought to recover on a fire insurance policy. The application for the policy was made to the agent of appellant on the 27th day of December, 1882, and the policy was issued and delivered to appellee upon that day, insuring for the term of five years from that date, the dwelling house of appellee, household furniture, barn, farming implements and various other articles of property, amounting in the aggregate to the sum of eleven hundred dollars.

In payment of the policy appellee, on the day and date of the policy, made and delivered to the agent of appellant his two promissory notes, each for the sum of §12.25, one payable on the first day of October, 1883, and the other payable on the first day of October, 1884, each bearing interest at the rate of six per cent, per annum from date. The notes on their face show that they were given in consideration of the policy.- The policy contains provisions in substance, that if any premium, note or installment shall be overdue and unpaid, the policy is void, and that no agent or solicitor has any power, authority or right to make any verbal agreements different or change the terms, or in any way to alter the conditions of the policy, unless he had special authority in writing from the company’s secretary. The dwelling house of appellee, and some other property, was destroyed hv fire on the 25th of July, 1884. One of the notes above described matured on the first of October, 1883, and had not been paid at the time the house was burned; there is no controversy as to the damages done by the fire; appellee claims that the time of the payment of the note due in October, 1883, was extended, or, to be more specific, that the note last referred to was taken up by him or his wife and a new note given in lieu thereof, which had not matured at the time of the conflagration. This is denied by appellant, and that is the point in controversy in this case.

The position of appellee was sustained by the evidence of his wife, who claimed to have been acting as the agent of her hnsband, appellee, and by his step-son. Appellee’s wife states in her testimony that the application for an insurance policy was made by herself and husband, and that they both signed it. That the policy of insurance was made out hv appellant in the name of appellee and herself, and that the notes given were signed by herself and appellee. She further states and claims that at the time of the extension of the first note due, she took up and received from the agent of appellant the old note and gave a new note, to which she signed her own name and that of her husband, appellee, and this was undoubtedly the idea of appellee when the suit was instituted before the justice of the peace, because the suit was begun in his own and his wife’s name and a judgment obtained, while in the circuit court the process is so amended as to make the suit pending in his own name.

The wife of appellee is certainly mistaken in her statements; on the trial the application for a policy was introduced in evidence. It was signed by appellee only. The policy made by appellant and delivered to appellee was in his name only, and the first notes given were introduced in evidence and signed by appellee only; neither of them was delivered to the witness as claimed, because they were both introduced by appellant in the trial as evidence. The step-son makes very nearly the same statement as his mother, and is contradicted like her in such a manner as to leave no doubt as to his being mistaken; besides it quite clearly appears that the step-son had stated on a former occasion that “the story as to making a new note was a'll made up or was all stuff.” The step-son also stated that appellee was a bad farmer; that if he had been managing the farm he would have paid the note when due and had no trouble. Appellee and his wife are Polanders, and can not speak English. The step-son, John Telka, acted as interpreter. Appellee also introduced as a witness one Andrew Bartocheski, who it seems held a policy of insurance issued by appellant, and who was in default in the payment of one of his notes, and who was present at the house of appellee at the very time when appellee’s wife claims 'that the first note given by appellee and herself was taken up, the time extended, and a new note given. He states in his testimony that there was some talk about a new note, but that no note was given; that no papers were exchanged. He also states in his testimony that the agent of appellant at that time informed him and the wife of appellee, who was acting for her husband, that as long as the notes then due remained unpaid no part of the amount mentioned in the policy could be collected, if the property was destroyed by fire. The wife of appellee, in her testimony, says that the agent of appellant, when she informed him that her husband did not have the money with which to pay the note, said to her that he would write the company, and if it would not extend the time that he would carry it himself, and appellee should pay him interest, etc., and from this it is possible that the witness concluded that the time had been extended. The fact, that the time was extended, or any new note given, is positively denied by the witnesses, Bartocheski, Page and Smith, while the policy itself, as we have seen, contained a provision prohibiting any change or extension without the written consent of the secretary of appellant; and it is not claimed that the agent of appellant had any such authority. It is assigned for error that the wife of appellee was allowed to testify as a witness. She seems to have been acting as the agent of her husband, and her statements while acting in that capacity ire competent. Other errors are assigned that we do not distinss. We think that the verdict of the jury is not' supported by the evidence, and for that reason the judgment of the circuit court is reversed and the cause remanded.

Eeversed and remanded.


text:
    James M. Robnett v. The People, etc.
    1. Bastardy — Making proeert op child. — In an action of bastardy it is improper to introduce the bastard child in evidence for the purpose of showing a resemblance between it and the defendant.
    2. Evidence. — The questions asked the plaintiff in this case, to which objection was sustained by the court below, were pertinent, either for the purposes of impeachment or showing the general character of the witness, and in arriving at the truth of the charge against the defendant.
    Appeal from the Circuit Court of Marion county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed April 6, 1885.
    Messrs. Casey & Dwight, for appellant;
    as to making profert of child, cited Risk v. People, 19 Ind. 152; People v. Carney, 29 Hun (N. Y.), 47.
    As to evidence: Benham v. State, 91 Ind. 82; O’Brien v. State, 14 Ind. 469; Smith v. Nevlin, 89 Ill. 193; Farwell v. Warren, 51 Ill. 470; Tracy v. People, 97 Ill. 103; Deagling v. State, 56 Wis. 586; Ray v. Bell, 24 Ill. 444; Craig v. Rohrer, 63 Ill. 325; Johnson v. People, 94 Ill. 505.
    Mr. H. C. Goodnow and Mr. W. D. Farthing, for appellees,
    cited R. S., 1883, p. 177, § 6; McFarland v. People, 72 Ill. 368; McElhaney v. People, 1 Bradwell, 548.
   Casey, P. J.

In this proceeding appellant is charged with bastardy. It is alleged that he is the father of the illegitimate child of the relatrix, Jennie J. Dee. The prosecution was brought in the County Court of Marion county, where, upon a trial, a judgment was rendered against appellant. He appealed the cause to the circuit court of that county, where, upon a trial before the court and a jury, he was again found to be the father of the child in question. The case is brought to this court by appeal. The errors assigned are:

I. The court erred in permitting plaintiff to make proferí of the alleged bastard child to the jury as evidence in this case.

II. The court erred in the admission of evidence on behalf of the plaintiff.

III. The court erred in sustaining plaintiff’s objections to questions asked by defendant on the cross-examination of the prosecuting witness, Jennie Dee.

IV. The court erred in sustaining objections to and ruling out evidence offered on behalf of the defendant.

V. The court erred in the instructions given for the plaintiff.

VI. The court erred in modifying instructions asked by the defendant.

VII. The court erred in overruling defendant’s motion to set aside verdict and for new trial.

Exceptions were saved by counsel for appellant to the ruling of the court.

On the trial of the cause in the circuit court, appellees were allowed by the court, against the objections of appellant, to make profert of the child in question, or introduce it as evidence against appellant.

One of the errors assigned questions the ruling of the court in this respect. This question, so far as we have been able to ascertain, has been very seldom before the courts of this country.

The case of The People, etc., v. Carry, reported in 29 Hun, Supreme Court Reports of H. Y., was a proceeding against the defendant charging him with bastardy. On the trial of the cause in the court below, the district attorney was allowed to ask the relatrix, who was on the stand as a witness, to look at the child and tell what the color of its eyes was. The witness replied, “Its e)res are blue.” The court, in ruling upon this point, said, We are of the opinion that this was error.”

The evidence enabled the court and jury to compare the color of the child’s eves with those of the defendant, who was present in court. We do not .regard this kind or character of evidence as safe or proper. It is uncertain and unreliable.

In the case of Petree v. How, reported in 4 Thompson & Cook, 85, it was held that such evidence was calculated to and probably did prejudice the defendant. That the court erred in allowing the evidence to go to the jury. The argument used in that case as to the color of the eyes, applies witli equal force to the ease now under consideration. Ordinary observation teaches us that in the same family of children different colors of hair and eyes are not unusual, and that it is not at all certain that the children resemble the reputed father. It certainly would be an uncertain, unsafe and dangerous doctrine to hold that the paternity of an illegitimate child might be shown by comparing the color of its hair and eyes with that of the alleged parent. It has been wisely held that such testimony does not create a circumstance in that character of case, because if admitted to go before the jury it might bring shame and disgrace upon the honest and best citizens in the community.

In the case of Risk v. The State, ex rel., etc., reported in 19 Ind. 152, which was a prosecution for bastardy, the court said: “ The State was allowed to give the bastard child in evidence, so that the jury might compare it with the defendant, who was then in court.” This seems to have been done without objection, and the court instructed the jury, on the part of the prosecution, that if they discovered a resemblance between the child and the defendant, they might regard it as a circumstance tending to prove that the defendant was its father.

The court said: We doubt the right to introduce the child iu evidence. We have seen no authority on the point. It would be a most uncertain rule of evidence, involving the necessity of giving the alleged father in evidence.

Besides it is a well established fact, at least to those who have made such subjects a study, that a child changes its primal appearance often and very much in the first three or four months of its existence. The record shows that the illegitimate child in the case now under consideration was less than four months old at the time of the trial in the circuit court. This fact if possible renders the testimony more uncertain.

In the case of the United States v. Collins, reported in first Crunch Circuit Court Reports, 592, the court refused to admit the testimony of witnesses to prove the likeness between the defendant and the child. This was an indictment against the reputed father for not supporting the bastard child.

In Mew England where most of the reported cases of this character are to be found, so far as we have seen, the decisions are to some extent conflicting on this subject. In the case of Keneston et ux v. Rowe, reported in 4 Shepley (Maine), 38, the defendant offered to prove that the child did not resemble him in form or complexion. This was a prosecution for bastardy and the child was more than fifteen years old, the defendant having been out of the State since the birth of the child. The court in substance said it was not the color or any peculiar conformation or form of features as matter of fact that were proposed to be proved. It was to prove a resemblance which is a mere matter of opinion. Witnesses on that subject, if they could have sight of the persons, the child and reputed father might be indefinitely multiplied without in the least affording any satisfactory ground of judgment, or final determination by the court or jury. Witnesses, except in some art, trade or profession, are not called upon to form comparisons and to testify to opinions arising therefrom, and there is nothing of art, trade or profession in the subject under discussion that we have been able to discern.

In the case of Young v. Makepeace, 103 Mass. 50, which was a prosecution for bastardy, the court in substance said: We think also the testimony to show points of dissimilarity between the bastard child and Dean, whom the defendant alleged was the father of the child, should not have been admitted. Even when there is a noticeable resemblance there may be equally marked points of dissimilarity. Points of dissimilarity not implying a difference of race do not even tend to prove paternity or to disprove it. They are of much less significance than even points of resemblance. In the case of Eddy v. Gray, 4th Allen (Mass.), 435, which was a proceeding against the defendant for bastardy; it was in substance said that the proof offered to show a supposed or alleged resemblance of the child to the defendant was properly rejected. It is not the kind of evidence which comes within the rule in relation to experts, upon questions of skill or of knowledge acquired by some peculiar experience or education. 1 Greenleaf, Ev., Sec. 440. And besides, the witnesses called did not profess to have any special skill upon the subject of inquiry.

As we have said, the decisions are somewhat conflicting on this subject in the Mew England States, but the weight of authority undoubtedly is that it is improper to introduce the bastard child in evidence, for the purpose of showing a resemblance between it and the defendant.

The third and fourth errors assigned, question the ruling of the court as to the introduction of testimony. The relatrix was asked on cross-examination, when was the last time she had her monthly sickness previous to the birth of the child? and if she did not at defendant’s house, in the presence of Miss Preston, tease and pick at Wright? and also if she did not at the house of Isham Preston, a short time before she left defendant’s house, in the presence of Miss Preston, say that she had a notion to kiss Charles Wright and see what he would do. She was also, on cross-examination, asked the following questions: Did yon not at the house of defendant, in the month of July or August, go into the kitchen where Jack Baldwin was lying, and pull up your clothes to show him your legs and look at him and smile? To each of these questions objection was made by the State’s attorney and the objection was sustained by the court.

The court erred in sustaining the objection to these questions. They were pertinent either for the purpose of impeachment or showing the general character of the witness, and in arriving at the truth of the charge against the defendant.

Of all the tests which the law has provided for the ascertainment of truth, the right of cross-examination is justly deemed the most powerful and efficacious. Courts, therefore, while guarding any abuse of the right, watch with zealous care any attempt to invade or restrict it. Tracy v. The People, etc., 97 Ill. 101.

William Tweed, a witness on the part of defendant, Avas asked if the relatrix did not state on the former trial that the last time she had her monthly sickness Avas the 21st of July, 1883, or that in substance. Objection Avas made to tills question and sustained by the court. The court erred in sustaining this objection. It was a material question, either regarded as one of impeachment, or for the purpose of shoAving that the defendant was not the father of the child.

The relatrix stated in her testimony that she Avas thirteen years old in July, 1884. That she went to the house of defendant to live on the 29th of June, 1883, and lived there until the fourth of September following. That about two weeks after she went there defendant came to her bed. lie did not have intercourse Avith her the first night, but did the second night, and pretty near eArery night Avliile she stayed there he came to her bed and had intercourse with her. Defendant’s wife, his child and a hired girl all slept in one room — they in one corner and the relatrix in another corner —the beds being ten or twelve feet apart.

The witness, Clara Preston, introduced on the part of defendant, stated that she went to the house of defendant six or seven days after the relatrix, Jennie Dee, came there. That she stayed there that week and the third Aveek also. That she slept with Jennie and on the front side of the bed. That the defendant was at home; that no one came to Jennie Dee’s bed while she was there. The Avitness also stated that she had often seen Jennie picking at and teasing Mr. Wright.

Tiiis witness was asked, on the part of defendant, the following questions: If any one had come to the bed would you have knoAvn it? and Avhat did she (meaning Jennie Dec) say, if anything, about his (Wright) feeling her breast? and, also, what Avas Jennie Dee’s conduct Avhile she lived at defendant’s as to being modest and retiring, or forward, as a girl or woman ?

The witness, Ellender Preston, introduced on the part of defendant, was asked the following question: What did she (Jennie Dee) say to you, if anything, about his (Wright) seeing her at the barn, and what they done there?

The court sustained objections to each of these questions.

These were pertinent and material questions, and the court erred in sustaining objections to them. They were important circumstances to be shown by the defendant, and it was manifest error in refusing to allow him to do so. The sole object of the examination was to arrive at the truth or untruth of the charge. The suppression of this testimony in a very great measure defeated the purpose of the examination. The jury should have been allowed to hear and consider all the facts and circumstances properly connected with the case, so as to enable them to arrive at a correct conclusion: Benham v. The State, etc., 91 Ind. 82; Smith v. Nevlin, 89 Ill. 193; Farwell v. Warren, 51 Ill. 470; Tracy v. The People, etc., 97 Ill. 103; Daegling v. The State, 56 Wis. 586.

We do not deem it necessary to discuss other errors assigned, and inasmuch as the case will be tried a^ain, we express no opinion upon the merits. For the reasons given the judgment of the circuit court is reversed and the cause remanded.

¡Reversed and remanded.


text:
    Board of Supervisors of Madison Co. v. The People, etc.
    1. Right to peremptory writ of mandamus. — The right of the party asking for a peremptory writ of mandamus must be unquestionable.
    2. Roads and bridges — Petition under section 110 of statute.— The county board is not required to grant the prayer of a petition based on section 110 of the act of 1879, entitled, “ An act in regard to roads and bridges in counties under township organization,” until the town has provided for one half of the fund necessary to construct the bridge as provided by the statute. It was error in the court below not to carry back the demurrer to the amended answer to the petition for a mandamus.

      Error to the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. George F. McNulty, for plaintiffs in error;
    that the right of the party claiming the writ of mandamus must be clear and certain, absolute and positive, perfect and complete, cited High on Extraordinary Legal Remedies; People v. Solomon, 46 Ill. 415; Silver v. The People, 45 Ill. 225; McBane v. People, 50 Ill. 503; People v. Mayor, etc., 51 Ill. 19; Springfield & Ill. S. E. Ry. Co. v. County Clerk, 74 Ill. 27; County of St. Clair v. The People, 85 Ill. 396; People v. Lieb, 85 Ill. 484; People v. Town of Clayton, 88 Ill. 44; People v. Lafayette, Bloomington & Mississippi Ry. Co., 88 Ill. 202; People v. Village of Crotty, 93 Ill. 180; People v. Davis, 93 Ill. 133.
    The town must first provide for one half of the necessary funds before the board of supervisors are bound to make an appropriation: Supervisors v. People, 110 Ill. 577; Supervisors v. People, 12 Bradwell, 210.
    Mr. John G. Irvin and Mr. Alexander W. Hope, for defendant in error;
    cited People v. Bd. Sup. Iroquois Co., 100 Ill. 640; People v. Bd. Sup. McHenry Co., Ill Ill. 93; Town of New Boston v. Bd. Sup. Mercer Co., 110 Ill. 197; Bd. Sup. Will Co. v. People, 110 Ill. 511; Bd. Sup. Stark Co. v. People, 110 Ill. 597.
   Casey, P. J.

The defendants in error filed their petition for a writ of mandamus against the plaintiffs in error in the Circuit Court of Madison county. The object of the proceeding was to compel the plaintiffs in error to make an appropriation of the sum of $1,500, to aid in the construction of a bridge across Wood river, in said county. An answer was filed to the petition, to which a demurrer was filed, and the demurrer was sustained by the court. The cause was then heard upon the petition, and a peremptory writ of mandamus awarded against the defendant. The case is brought to this court by a writ of error. The errors assigned are:

1. The court erred in sustaining the demurrer to the amended answer.

2. The court erred in not carrying back the demurrer to the petition filed by defendants in error, and in not declaring the same insufficient in law.

3. The court erred in deciding the amended answer insufficient.

é. The court erred in awarding a peremptory writ of mandamus. n

The petition shows that the defendants in error presented to the plaintiffs in error a petition, praying for an appropriation of §2,500 on the second day of September, 1882. That afterward, on the fourth day of December, 1882, the plaintiffs in error made an appropriation of one thousand dollars for the purpose of aiding in the construction of said bridge. This proceeding is’ based on section 110 of the act of 1879, entitled “An act in regard to roads and bridges in counties under township organization,” in force July 1, 1879. Session Laws of 1879, page 281.

The section referred to provides that when it shall be necessary to construct or repair any bridge in any town, or to build a bridge over any stream, between towns, or over streams on roads between towns in the same counties, which would be an unreasonable burden to the same, the cost of which will be more than can be raised in one year by ordinary taxes for bridge purposes in such towns or one of such towns, the commissioners of highways of either town desiring to build such bridges, shall present a petition to the county board of the county in which such town or towns are situated, praying for an appropriation from the county treasury to aid in the building, constructing or repairing of such bridge, and such county board shall, when one half of the necessary funds have been provided for by the town authorities, or each or both of such towns, appropriate the other half, etc., etc.

The petition presented by the plaintiffs in error is in substance as follows: That the said relators are the commissioners of highways of said township, and that their predecessors in office, on the 12th day of September, A. D. 1882, presented to the board of supervisors of said county, then in session at the court house in Edwavdsville, a petition in words and figures as follows, to wit:

“To the County Board of the county of Madison in the State of Illinois: The undersigned, commissioners of highways of the town of Wood Biver, in said county, would respectfully represent that a bridge needs to be built over the Wood river where the same is intersected bv the highway leading from Upper Alton to Emerald in said town; that the total cost of building said bridge will be five thousand dollars ($5,000) which would be an unreasonable burden to said town, and more than can be raised in one year by ordinary road taxes therein, the amount raised by such taxes being only about thirty-two hundred dollars, out of which must this year be expended not less than one thousand dollars ($1,000) on account of bridge over Wood river on the line of the Upper Alton and Greenville road, besides numerous minor expenses for small, bridges and culverts, wherefore the said commissioners of highways hereby petition you for an appropriation of $2,500 from the county treasury of said county to aid in building said bridge.

BEmi-roLD Batsoe,

James M. Kendall,

Joen T. Blown,

Commissioners of highways.

Dated at Upper Alton, Ill., this 2d day of September, A. D. 1882.

To this petition an answer was filed, in which it was denied that any petition had been presented to, or filed with the plaintiffs in error, praying for such appropriation as alleged in the petition fora mandamus, and that no such petition by the said commissioners of highways had been referred to the committee on roads as alleged, or that any report of such petition had been made as averred in the petition for the writ of mandamus.

The answer does not specifically deny or reply to each allegation in the petition,-but it does deny, as we have seen, material allegations in the petition that must be shown by the evideuce on the trial, and is therefore not subject to demurrer. As to those allegations not answered, they may be taken as admitted. The court erred in sustaining the demurrer to the answer.

It will be seen that the board of supervisors were required by the statute to make the appropriations when one half the sum required had been raised or appropriated by the town. There is nothing in the petition to show that such a state of facts existed, and neither was there any proof upon the hearing or notice of any kind given to the plaintiffs in error, that the town had made the appropriation as required by the statute.

The right of the party asking for a peremptory writ of mandamus must be unquestionable. That this is the settled law is beyond controversy. Selm v. The People, etc., 45 Ill. 225; County of St. Clair v. The People, etc., 85 Ill. 396; People etc., v. The Town of Clayton, 88 Ill. 44; People, etc., v. Davis, 93 Ill. 133.

The board of supervisors are not bound to make the appropriation until one half the necessary funds have been raised or have been provided for by the town authorities. This is a condition precedent for the protection of taxpayers of the county. Unless the public necessity is such that the town authorities are willing to incur the burden of one half the expense, the burden of the other half can not be imposed on the taxpayers of the county.

The town must act through its constituted authorities and provide for one half of the necessary funds; that is, the town authorities must have the necessary amount of money, or they must have raken such steps, legally, as to make it absolutely certain that they will be ready to make payment for the construction of the bridge when required.

It is not alleged in the petition that the town had the money, or had taken any steps to procure the necessary funds, and neither does the proof show that any tax had been levied from which the money might be raised, and no vote of the town had been taken for the purpose of raising the money as required by the statute. The county board is not required to grant the prayer of the petition until the town has provided for one half of the fund necessary to construct the bridge as provided by the statute. Supervisors of Kendal Co. v. The People, etc., 12 Bradwell, 210; Supervisors of Stark Co. v. The People, etc., 10 Bradwell, 110; The Town of New Boston v. The Board of Supervisors, etc., of Mercer Co., 110 Ill. 197.

In view of the statute and the authorities referred to, we think it clear that the demurrer to the amended answer should have been carried back, and sustained to the petition for a mandamus. We see no propriety in discussing other errors assigned. For the reason given the judgment of the circuit court is reversed and the cause remanded.

Beversed and remanded.


text:
    Jacob Ferkel v. The People, etc.
    1. Officer — Offense under section 218 of Criminal Code.— The offense in section 218 of the Criminal Code can only be committed by an officer authorized to charge fees.
    2. Pleading. — That the defendant was authorized to charge fees is a material averment in an indictment brought under section 213 of the Criminal Code. The averment that the defendant was a “ town marshal or police officer ” is insufficient, as the latter term does not designate any officer authorized by law to charge any fee.
    3. What necessary to constitute offense. — To he guilty of the above offense, the officer must have the process or summons, or whatever legal writ it may be, and must charge, claim, take or demand a greater fee than is allowed him by the statute.
    4. Same. — Even if the indictment was sufficient on its face, as the money was not paid as any fee claimed or taken by the officer in excess of the fees allowed him by the statute, but for the purpose of disposing of a. suit then claimed to be pending against the prosecuting witness, such a case is not made out as provided by the statute.
    5. Criminal law. — Where a person was indicted by the grand jury of Monroe county, for extortion as an officer in said county, and there was no evidence in the record that the offense, if any, was committed in such county. Held, that this is a material averment and must be shown by the evidence.

      6. Jury — Evidence.'—A jury ought not arbitrarily to disregard the testimony of an unimpeached witness. The rejection or admission of testimony must be reasonable and not captious, and must he justified on the ground that it either convinces, or fails to convince the judgment of a candid and impartial man.
    Error to the County Court of Monroe county; the Hon. William Erd, Judge, presiding.
    Opinion filed April 6, 1885.
    Messrs. Wirklemar and Morrisor, for plaintiff in error;
    that the jury has no right to disregard the testimony of a witness without cause therefor, cited Chambers v. People, 105 Ill. 409; Rockford, R. I. & St. L. R. R. Co. v. Coullar, 67 Ill. 399.
    Without proof that the offense was committed in Monroe county, the conviction is not sustained by laws Sattler v. People, 59 Ill. 68.
   Casey, P. J.

In this case the plaintiff in error was indicted by the Grand Jury of Monroe county for extortion as an officer.

The indictment was by order of the circuit court certified to the county court of that county for “ service of process and trial.”

Upon a trial in the said county court, the defendant was convicted and fined the sum of twenty-five dollars and the cost of the proceeding. In the county court a motion to quash the indictment, and a motion for a new trial, was interposed by the defendant, and both motions were overruled by the court. Proper exceptions were taken to the ruling of the court.

The errors assigned are:

1. The county court erred in overruling the motion to quash the indictment.

2. The county court erred in giving the instruction on behalf of the people.

3. The county court erred in overruling the motion for a new trial.

4. The verdict of the jury was manifestly against the evidence.

The indictment is based upon the 213th section of the Criminal Code, and the charging part is as follows:

The grand jury, chosen, select and sworn, in and for the county of Monroe, in the name and by the authority of the people of the State of Illinois, upon their oaths, present that Jacob Ferkel, late of the said county, on the third day of August, in the year of our Lord one thousand eight hundred and eighty-four, at and within the said county of Monroe, then and there being a town marshal or police officer for the town of Columbia, in the county and State aforesaid, did as such police officer or town marshal, beyond the incorporated limits of the town of Columbia aforesaid, by color of a certain process commonly called a justice of the peace summons, which the said Jacob Ferkel then and there alleged to be in his possession, willfully and corruptly offer to read and serve upon one Frederick Take,- of the county and State aforesaid, and that the said Jacob Ferkel afterward, to wit, on the day and year aforesaid, in the county aforesaid, unlawfully, willfully, corruptly, deceitfully, extortiously and by color of his said office aforesaid, and by color of said justice of the peace summons so offered to be read and served upon the said Frederick Take as aforesaid, did extort, receive and take of and from the said Frederick Take the sum of twelve dollars and fifteen cents, as and for a fee due to the said Jacob Ferkel as such officer as aforesaid, in payment and discharge of the said justice of the peace summons so attempted and offered to be read and served upon the said Frederick Take, by the said Jacob Ferkel as aforesaid. Whereas, in truth and in fact the said Jacob Ferkel did not then and there have any such summons against the said Frederick Take as by the said Jacob Ferkel alleged, nor was there any fee whatever then and there due from the said Frederick Take to the said Jacob Ferkel as such officer aforesaid in that behalf to the evil and pernicious example of all others in the like case offending, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the said people of the State of Illinois.

The section of the Criminal Code referred to is as follows;

“ If any oflicer authorized by law to charge fees, shall charge, claim, demand or take any greater fee that such as is by law allowed to him for the service performed, or shall claim, demand or take any fee, or who shall knowingly charge a fee when no fee was allowed him by law, or when the services for which such fee is charged have not been performed by him or by some other person for him, he shall on the first conviction be fined not less than $25 nor more than $200, and upon a subsequent conviction of any like offense, he shall forfeit his office and be confined in the county jail not less than thirty days nor more than one year.”

It will be seen that this offense can only be committed by an officer authorized to charge fees, and that there is no averment in the indictment that the defendant was authorized to charge fees. The averment is that the defendant was a " town marshal or police officer.”

This is insufficient. That the defendant was authorized to charge fees, is a material allegation, one that must be proven on the trial and averred in the indictment. The charge is that the defendant was a “ town marshal or police officer.” As town marshal he would be authorized to charge fees, and perhaps it would not be necessary to charge that fact. The court might take notice of the rights of the officer — as a “police officer” there would be no right to charge any fee. The term “ police officer ” does not designate any officer authorized by law to charge any fee. So that there is no averment of authority to charge fees, and the facts or averments stated in the indictment do not show that the defendant was authorized to charge fees.

The evident intent and object of the statute is to create a penalty against an officer who in the exercise of his official duty charges, takes or demands a greater sum than is allowed him by the law in such cases. The indictment shows on its face that the defendant was not attempting to serve a process or “justice of the peace summons,” but that in fact he did not have any process to serve.

To be guilty of this offense the officer must have the process or summons, whatever legal'writ it may be, and must charge, claim, take or demand a greater fee than is allowed him by the statute. This is not charged in the indictment, but it is averred that the defendant did not have any summons or other process against the prosecuting witness. If the indictment was sufficient on its face, the verdict of the jury is not supported by the evidence; the verdict is manifestly and palpably against the evidence. Upon the trial of the cause it was agreed that if the prosecuting witness was present he would state that said Jacob Ferkel, the defendant, approached said Frederick Take, purported to have a justice of the peace summons in his pocket, in favor of Mrs. Krumm, of Columbia, Ill., and against said Take, whom he, Ferkel, intended to serve with said summons, which was issued by Warwick, J. P., of Columbia, in favor of Mrs. Krumm, summoning Take to appear in Columbia, on a certain day, to answer said summons, said suit being brought upon a promissory note, payable to Mrs. Krumm by said Take; and said Ferkel said to Take that he would have the suit dismissed if he would pay him the sum of $12, which Take agreed to pay, and did pay to Ferkel the said sum of $12, in consideration that he would not serve said summons upon said Take, which was then and there paid upon such false representation.

From this statement it is very evident that the $12 was not paid as any fee claimed or taken by the officer in excess of the fees allowed him by the statute, but for the purpose of disposing of a suit, then claimed to be pending against the prosecuting witness and in favor of Mrs. Krumm. In fact no such suit was pending, and the money may have been obtained by false and fraudulent representations, but it is not such a case as is provided for by the section of the statute above referred to.

We have carefully examined the record and have been wholly unable to find any evidence whatever showing that the offense, if any, was committed in Monroe county. That the offense was committed in that county is a material averment, and must be shown by the evidence. Price v. The People, etc., 38 Ill. 436; Salter v. The People, etc., 59 Ill. 68.

On the part of the people the court instructed the jury as followss “The court instructs the jury, on behalf of the People, that they are judges of the law and fact and the credibility of witnesses, and they may admit or discard any evidence they deem proper, and admissions may be taken as evidence.”

This instruction does not state the law correctly. It is true that the statute provides that 'the jury in criminal cases shall be the judges of the law and the evidence. Yet the jury are not warranted in disregarding the testimony of a witness when no discrediting circumstances appear; the jury is not authorized to arbitrarily and capriciously disregard the testimony of a witness.

The jury is not authorized to “discard any evidence they deem proper.” If that proposition was the law it could make no difference how honest or truthful the witness might be, or how much his statements might be corroborated by other reputable witnesses, the jury might, because of a mere whim or caprice, disregard his testimony entirely.

A jury ought not arbitrarily to disregard the testimony of an unimpeached witness. It is the sworn duty of the jury to consider the entire testimony and render their verdict after a full, fair and just consideration of all the evidence. While they are the judges of the fact, in arriving at their conclusion as to what the facts are they must consider all the testimony, and give it such weight as in their judgment it is entitled to. The rejection or admission of testimony must be reasonable, and not captious, and must be justified on the ground that it either convinces or fails to convince the judgment of a candid and impartial man. Chambers v. The People, etc., 105 Ill. 409; R. R. Q. & St. L. R. R. Co. v. Coultas, 67 Ill. 399; Fisher v. The People, 23 Ill. 283; Schiner v. The People, 23 Ill. 17.

For these reasons the judgment of the county court is reversed.

Judgment reversed.


text:
    James R. Munford v. Daniel McIntyre et al.
    Mistake in Mortgage — Notice—Judgment creditor. — Where a mistake was made in the description of a mortgage and a second mortgage of the same premises was made to a party with knowledge of mistake, etc., and on that same day two parties, without notice, obtained judgments against owner of premises, and subsequently the second mortgagee obtained a decree of foreclosure on his mortgage, and it was decreed that the liens of the two judgment creditors and the second mortgagee were equal and that the proceeds of the sale should be divided pro rata, and the second mortgagee, by an agent, bought in the premises and paid the amount due the judgment creditors, and the first mortgagee, who was not made a party to the suit, filed a bill to foreclose his mortgage. Held, that while the first mortgagee is equitably entitled to a decree of foreclosure, the second mortgagee must be paid, out of the proceeds of such sale, the amounts paid the judgment creditors. By obtaining an interest in the judgments he occupied the same position as the judgment creditors.
    Error to the Circuit Court of Randolph county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed April 6, 1885.
    Mr. A. Russell, for plaintiff in error;
    cited Columbus Buggy Co. v. Graves, 16 Chicago Legal News, 73; Thomas v. Citizens’ Horse Ry. Co., 104 Ill. 462.
    As to duty of judgment creditor to make inquiries: Dyer v. Martin, 4 Scam. 147; Brown v. Gaffney, 28 Ill. 150; Doyle v. Teas, 4 Scam. 202; Williams v. Brown, 14 Ill. 201; Davis v. Hopkins, 15 Ill. 519; Prettyman v. Wilkey, 19 Ill. 241; Truesdale v. Ford, 37 Ill. 210; Lumbard v. Abbey, 73 Ill. 178; Whitaker v. Miller, 83 Ill. 386; Strong v. Shea, 83 Ill. 575; 2 Sugden on Vendors, 8 Am. Ed. 343, §24; Daniel v. Davidson, 16 Vesey, 1 Am. Ed. 249.
    Mr. H. Clay Horner, for defendants in error;
    that one who, without notice of outstanding equities, obtains a judgment, is technically an innocent purchaser, and a purchaser with notice at the sale under such judgment comes within the rule that a purchaser with notice from one without notice of an outstanding equity, is protected from such equity, cited Freeman on Judgments, §366; 2 Pomeroy’s Equity, § 724; Massey v. Westcott, 40 Ill. 163; McFadden v. Worthington, 45 Ill. 362; Guiteau v. Wisely, 47 Ill. 435.
   Casey, P. J.

The plaintiff in error tiled his bill in the Circuit Court of Randolph county to foreclose a mortgage and correct a mistake therein.

The evidence shows that on the 13th of March, 1874, Daniel McIntyre was indebted to Elizabeth Miller in the sum of seven hundred dollars, and on that day McIntyre made and delivered to Elizabeth Miller his promissory note for said sum, due in one year from that date, with interest at the rate of ten per cent, per annum; and that to secure said note McIntyre and his wife made, acknowledged and delivered to Elizabeth Miller a mortgage on the S. W. quarter of the S. E. quarter of Section thirteen, T. 4, S., R. 5, W. of the third principal meridian. That in making said mortgage a mistake was made in this: in the mortgage the land is described as in section thirteen, when in fact it was in section twelve. In all other respects the mortgage is correct and complete. This mortgage was duly recorded on the 6th of April, 1874.

The evidence further shows that Mrs." Miller, after the expiration of one year, took possession of the premises intended to be described in the mortgage, and received the rent therefrom for the years 1876, 1877 and 1878, and had possession of said premises until November 1, 1879.

It further appears that on the 20th of March, 1877, the said McIntyre and his wife made and delivered to the defendant, Brice Crawford, a mortgage on the premises intended to be conveyed by mortgage to Elizabeth Miller, to secure the sum of one thousand dollars; and that the said Brice Crawford, at the time of receiving said mortgage, had full and complete notice of the rights of Mrs. Elizabeth Miller, and that a mistake had been made in the description of the premises intended to be conveyed to her by his said mortgage.

It further appears from the evidence that on the same day, to wit, the 20th day of March, 1877, the Broadway Savings Bank of St. Bonis, obtained in the Randolph Circuit Court a judgment against the said McIntyre for the sum of $861, and on the same day one Wm. Iletherington obtained a judgment against the said McIntyre for the sum of $1,229.48. There is no evidence to show that either Broadway Savings Bank or Wm. Iletherington knew or had notice of tire mortgage of Elizabeth Miller or the mistake therein. Executions were issued upon each of said judgments.

The evidence further shows that in 1879 the said Crawford filed his bill and obtained a decree of foreclosure upon his said mortgage. That in and by said decree it was held that the liens of the said Crawford, The Broadway Savings Bank and Wm. Iletherington were equal, and that the proceeds of the sale of the premises should be divided pro rata. That upon a sale of said premises after said foreclosure, the land was purchased by one J. S. Foster for the sum of $1,200. lie was acting for Crawford, but he took the certificate in his own name, and after the time of redemption expired, the master in chancery made find delivered to him a deed of said premises, and Foster at once made and delivered a deed of said premises to Crawford. Of the said sum of $1,200, the sum of $329 was payable to the Broadway Savings Bank, and $390 due to the said Wm. Iletherington. These amounts were paid by the said Crawford, or at least such arrangements were made between the parties as made Crawford the owner of that amount of each of the judgments respectively. In all this proceeding neither the said Elizabeth Miller nor the plaintiff in error were in any way made parties, and their interests, whatever they may be, were not in any way affected.

It appears from the testimony that Elizabeth Miller, for a valuable consideration, assigned her note and mortgage to the plaintiff in error, and that he, at the special December term, 1882, of the Randolph Circuit Court, filed his bill to foreclose said mortgage, and that upon the trial of said cause a decree of foreclosure was refused and the bill dismissed.

The case is brought to this court by a writ of error, aud the errors assigned are:

1. The court erred in dismissing complainant’s-bill.

2. The court erred in refusing the relief prayed for in complainant’s bill.

3. The court erred in not granting the prayer of complainant’s bill.

There is no controversy upon the question as to the notice of Crawford of the equities of Elizabeth Miller and the plaintiff in error. It is equally true that there is no evidence of notice of the rights of the parties as to the judgment creditors. It appearing then that Crawford knew of the mortgage of Mrs. Miller, and the mistake therein, whatever right he obtained by virtue of his mortgage taken three years subsequent to the first mortgage, must be held subject to the first mortgage. So far as his claim is concerned, he holds it the same as if there had been no mistake in the Miller mortgage, audit had been duly recorded.

The purchase by Crawford of an interest in the judgments of the bank and Hetherington against McIntyre would in no respect change the character of the lien created by his mortgage with notice of the prior equities existing because of the Miller mortgage.

The judgments referred to were obtained on the same day that the mortgage of Crawford was recorded, but there was no notice to the judgment creditors of the rights of the Miller mortgage, and a sale upon either or both of these judgments would not have been subject to the Miller mortgage. The lien created by the last mentioned mortgage was not perfect or complete until the mistake was corrected, and no effort to correct the mistake was made until the bill for a foreclosure was filed. The liens created by the judgments were perfected before the lien, created by the mortgage, and they must take priority. Crawford, by obtaining an interest in these judgments, occupied the same position as the judgment creditors themselves, who, as we have seen, had no notice of the mistake in the Miller mortgage. Guiteau v. Wisely, 47 Ill. 434; Massey v. Westcott, 40 Ill. 163; McFadden v. Worthington, 45 Ill. 362. It is true that the sale was upon the foreclosure of the mortgage held by Crawford, which was nota prior lien as we have shown, because of the notice to the mortgagee; hut of the proceeds arising from that sale, the sums alone specified were paid on the judgments referred to, respectively, which were prior liens, and they continued prior liens. The payment of these sums was a satisfaction to that extent of these-judgments. While, therefore, we think that the plaintiff in error was equitably entitled to a decree of foreclosure, we are of the opinion that the defendant Crawford must be reimbursed or paid out of the proceeds of the sale on such foreclosure the sums referred to, to wit, $329 on account of the Broadway Savings Bank of St. Louis, and the said sum of $390 on account of the judgment of the said William Hetherington.

For these reasons the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.