text:
    Terre Haute & Indianapolis R. R. Co. v. Martin V. Elam.
    Railroad eettces—Public highways.—Railroads must be fenced or inclosed with gates or bars at all road crossings which are not used and treated by the people and road authorities as public highways. The place where the stock was killed, in this case, held, not to he a public road crossing; therefore the railroad company, having failed to fence at such place, is liable.
    Appeal from the County Court of Fayette county; the Hon. Jacob Fouke, Judge, presiding.
    Opinion filed November 24, 1886.
    Messrs. Ashcraft & Stillman, for appellant.
    Messrs. Farmer & Brown, for appellee.
   Wilkin, P. J.

This action is brought to recover the value of certain hogs of appellee killed by a locomotive of appellant. The only question presented for our decision is, whether or not the place at which the animals were killed was a public road crossing, within the meaning of section 62, chapter 114, R. S., requiring railroads to fence their tracks “ except at the crossings of public roads and highways.” There is no claim on the part of appellant that a public road, or, in fact, any road whatever, existed at that place when its railroad was built. There was a traveled way in that vicinity, but it is not pretended that it was in any sense a public road or highway. In 1868 one Heninger conveyed to appellant a right of way over his land, and in the deed it was stipulated that it should make a good crossing on the land conveyed, where said Heninger should designate. In pursuance of that agreement a crossing with gates or bars was made about the time the railroad was first put in operation. After several years Heninger requested appellant to change the crossing and place it farther east and put in cattle guards instead of the gates, and that was done on its present location near Heninger’s east line. Heninger owned the lands north of the railroad and west of the line of this crossing, which were at the time vacant. Parties owning east of him fenced their lands before he did, placing their fences substantially on the line. When he inclosed his land he left on the east side what he calls a “ narrow passway,” leading from the railroad up north to his house, about three quarters of a mile. He afterward sold the north part of his lands to William Brown, and at the same time sold him “a strip two rods wide off of the east side” of that which he retained, thus giving Brown a roadway to the crossing in question. It is shown by the evidence that the northern terminus of the road is at Brown’s house and has no connection at that point with any road, public or private. At the south, near appellant’s right of way, it intersects the St. Louis road or crossing; it extends about a quarter of a mile south to a farm house and there terminates. The road north from the railroad has been in its present location about ten or twelve years. For a time Brown closed it up with a gate about a half mile north of the crossing. Brown has been allowed by the road authorities to work out his road tax on it, and has placed it in good condition. He is an extensive farmer and uses the road a great deal. Persons visiting his place and that of one or two of his neighbors travel it more or less frequently. Heninger testifies that it was not his intention to dedicate a road to the public in leaving the passway.” Brown was not sworn on the trial. An attempt is made to maintain that this is a public, or public and private road, by dedication on "the part of Brown. The evidence, we think, wholly fails to show such an intention on his part; on the contrary, his closing it with a gate for a time shows a contrary intention. Neither has the public accepted it as a dedication. There is nothing in the evidence to show that Brown could not at any time close it up entirely or put gates or bars across it, as might best suit his personal convenience. The position that the place at which the stock wTas killed must be held either a public road or farm crossing, is not tenable. It may be neither. In fact, from the evidence in the case, it is neither. The answer to the inquiry, what shall railroads do with this character of roads, is, fence them up, unless, by their contract with individuals, they have agreed to keep them open. What appellant did at this place was not done in order to comply with the requirements of the statute, nor in obedience to any duty it owed the public, but in fulfillment of its contract with Heninger. We do not understand that appellant would not he allowed to put gates or bars at this crossing as insisted upon by its counsel, but even if the agreement with Heninger should bo so construed, it can not be heard to say that it is exempt from liability to third parties for stock killed at a place where the statute required it to fence because of such a contract with an individual. We are not to he understood as holding that railroads may fence up all roads not coming within the statutory definition of public highways, nor that, in order to exempt them from liability for killing stock at public road crossings, it must appear that the road has been legally established. Such is manifestly not the spirit of the statute. It does, however, mean that railroads shall be fenced or inclosed with gates or bars at all road crossings which are not used and treated by the people and road authorities as public highways. The place at which appellee’s stock was killed was not a public road crossing, and appellant, having failed to fence or otherwise inclose its track at that place so as to prevent the animals from getting on it, by the terms of the statute is liable.

Affirmed.


source: Caselaw Access Project

author: Wilkin, P. J.

license: Public Domain

text:
    George Schaefer et al. v. The People ex rel., etc.
    1. School districts—Construction of statute.—The boundaries of the school district which was organized under a special act of the legislature of March 29, 1809, can not be changed by detaching a portion of such territory.
    2. Quo warranto —Ouster.—A quo tvarranto proceeding was instiluted against the defendants,who had been acting as school directors of a district formed by deducting a portion of the above district. The court gave judgment of ouster and then followed a, recital finding that said district was illegally formed; that the election and acts of defendants as directors were void. Held, that the recitals may be treated as surplusage and that the judgment of ouster was proper.
    Appeal from the Circuit Court of Monroe county; the Hon. George W. Wall, Judge, presiding.
    Opinion filed November 24, 1886.
    Mr. Spencer Tompkins, for appellants;
    that acts of de facto officers are not void, cited Trumbo v. People 75 Ill. 561; People v. Newberry, 87 Ill. 41.
    When a doubt exists as to the powers granted by a special act, or as to its effect to limit the powers conferred upon others by a general law, that doubt must be solved against the special act: Minturn v. Griswold, 23 How. 435; 2 Am. Corp. Cases (With-row), 283.
    Mr. W. H. Horine and Mr. E. P. Slate, for appellee;
    cited Fuller v. Heath, 89 Ill. 296; Broom’s Legal Maxims, § 564; Sammis v. Clark, 13 Ill. 546.
   Wilkin, P. J.

This was a quo warranto proceeding against appellants as acting school directors of District No. 7, T. 2, S., R. 10 W., Monroe county, Illinois. This district was formed by detaching a portion of District 3 in said town, which was organized under a special act of the legislature, dated March 29, 1869. To the petition a plea was filed which was demurred to by petitioners. On the hearing of this demurrer, it was agreed by parties “ that the court should determine only the question of law, whether or not the trustees of schools were authorized by the constitution and laws of the State of Illinois to detach a portion of said District 3, and include the same in a new district, by them otherwise properly organized, and that on behalf of relators said special act, in relation to the Waterloo graded schools, should be considered by the court as properly before it.” The first section of that act organizes the territory of District 3, “ together with such additions as may from time to time be made thereto by the action of boards of school trustees, special act of the legislature or otherwise,” into a school district, the schools therein established to be known and designated as the Waterloo Graded Schools. See Private Laws, 1869, page 534, Vol. 3. The subsequent sections provide that the schools shall be under the exclusive control and management of a board of directors and define their powers. The court, in pursuance of the foregoing stipulation, sustained the demurrer to the plea and gave judgment of ouster against the defendants, finding them guilty of illegally and unlawfully introducing themselves into the office of school directors of said District No. 7. Then follows a recital, finding that said District No. 7 was illegally formed, etc., and that the election and acts of defendants as directors of District No. 7 are void. It is assumed by counsel for appellants that this amounts to an adjudication upon the acts of the defendants, and a judgment that they are void, and on that assumption it is argued that the acts of officers de facto are here declared void; and it is urged that in this there is such manifest error that the judgment must be reversed regardless of the merits of the case. This is a direct proceeding against persons charged with usurping, intruding into and unlawfully holding the office of school directors. If it should be held that there is sufficient color of office to constitute thqm officers de facto, in a proceeding collaterally questioning the validity of their acts, it does not follow that the judgment in this case is erroneous, as adjudging such acts void. While the judgment does not strictly conform to section 6, chapter 112, R. S., it does contain all that is there required in a judgment of ouster in a quo warranto proceeding; and the recitals objected to maybe treated as mere surplus-age. It remains then to be determined whether, under the stipulation, the trustees of schools were authorized by the constitution and laws of this State to detach a portion of said District No. 3, and include the same in anew district otherwise properly organized.” That was the question submitted to the circuit court, and it is the only one properly before us.

It will be seen that the special act establishing District 3, by its terms, does not authorize the hoard of trustees to detach territory therefrom, but it is insisted that by construction such power is given. There is no occasion for construction as we understand the act. By express terms, the legislature fixed the boundaries of the district. Those boundaries, by the provisions of the act, could only be changed by making additions thereto. To say that it was the intention of the legislature by special act to erect a school district, and establish such a graded school as is provided in the several sections of this act, and yet leave its territory liable to be diminished without limit, is unreasonable and in direct conflict with the language of the act. The legislature clearly intended that at least so much territory as is described in section one should be secured to the district for the support and maintenance of the schools provided for by the act. To give its language a different meaning is not to construe, but abrogate the statute. The positions that this special school district was abolished by the adoption of the present constitution, and that the act of 1872 gives the school trustees powers which they did not possess by the terms of the special act, are both untenable. We find no reason for interfering with the action of the court below, and its judgment will be affirmed.

Affirmed.


text:
    W. Scott Marshall v. Christian Yoos.
    Pound-master.—A pound-master can not justify in actions brought against him by the property owner, unless he has strictly complied with all the requirements of the law under which he acts.
    Error to the Circuit Court of Marion county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed November 24, 1886.
    Messrs. W. & E. L. Stoker, for plaintiff in error.

      Messrs. Casey & Dwight, for defendant in error.
   Wilkin, P. J.

This was an action of replevin by plaintiff in error against defendant in error, to recover, possession of a cow. Plaintiff in error claimed possession of the animal as owner. Defendant in error attempted to justify his taking and holding her as pound-master.

The judgment of the circuit court, from which this writ of error is prosecuted, is peculiar. It adjudges the defendant not guilty, and plaintiff to pay costs, but makes no disposition of the property. If a judgment of not guilty is to be treated as a finding on all the issues, there should have been an order for a return of the property. We are of opinion, however, that upon the evidence the finding should have been for the plaintiff in error. It is conceded that he was the owner of the cow at the time she was impounded. His father-in-law was keeping her for him, but it is clear, from the evidence, that he had no right of possession as against the owner. Plaintiff in error could rightfully take her from him at any time, and if he had refused to give her up on demand, could have maintained replevin against him. If defendant in error wrongfully took her, and, as the evidence shows, refused to deliver her to plaintiff in error when he demanded her, certainly this action can be maintained by him. It is wholly unnecessary to pass upon the regularity of the proceedings of the town, under which it is claimed the cow was taken and impounded, for the reason that the defendant in error failed to show that he complied with the requirements of the bylaws of the town, under which he sought to justify.

No rule of law is better settled than that an officer justifying his conduct, or claiming a right to deprive another of his property by virtue of the law under which he acts, must show n strict compliance with that law on his part. Applying that rule to cases of this kind, Dillon, in his work on Municipal Corporations, Sec. 101, says: “and the pound-keeper can not justify inactions brought against him by the property owner, unless he has strictly complied with all the requirements of the law under which he acts.” To the same effect is the language of Chief Justice Walker, in Clark v. Lewis, 35 Ill. 417. Sec. 4 of the by-laws under which defendant claimed to take this animal, makes it the duty of the pound-master, whenever an animal is placed in the pound, “ to make complaint at once to some justice of the peace of the town, apply for proceedings to adjudge against owner the penalty, etc.” Sec. 5 makes it the duty of the justice of the peace to issue a notice to the owner, stating the fact of impounding, fixing time of trial not exceeding five days thereafter; which notice should be served at least three days before trial. Sec. 6 makes it the duty of the pound-master to attend before the justice at the time fixed for the hearing and present the facts. It is clear, from these provisions, that while the animal might be taken without legal process, if running at large, she could only be held by virtue of the legal proceedings provided for in the above sections. By his own testimony defendant in error impounded the cow on the 2d day of July and held her until the 8th, when she was demanded, and replevied. He says, on the second day after he got her he made complaint to a justice of the peace. Whether the justice did anything does not appear. Even if it be held that making complaint two days after the impounding is a compliance with See. 4, there is an entire absence of proof' that any proceedings were applied for or instituted as required by that section. It is made the duty of a pound-master to commence and prosecute the proceeding provided for in these sections, and he can not justify his .holding by simply proving that he made complaint before a justice of the peace. It may be fairly inferred from all the evidence, that no proceedings were in fact begun. Ho notices seem to have been served although six days had elapsed since the impounding, and when the demand was made no information was given as to any suit pending. However that may be, it was the duty of the officer justifying as pound-master to prove affirmatively that he had complied with the by-laws under which he claimed to act. If he could hold this animal six days under the proof here made, no good reason is perceived why he might not hold her indefinitely, and thus deprive the owner of his property without legal process.

Reversed and- remanded.


author: Green, J.

text:
    Gaar, Scott & Co. et al. v. First National Bank of Centralia et al.
    1. National banks—Mortgage security.—Where notes given to a national bank are not for money loaned on the strength of a chattel mortgage as security, but are given for a pre-existing indebtedness, and the mortgage taken as additional security, this is a lawful and prudent precaution taken in the interest of stockholders, and is not prohibited by the federal statute.
    2. Chattel mortgage to several mortgagees.—The mortgage in this case is not to be construed as a separate mortgage to each mortgagee, but the mortgage debt was an entirety of §4,895.93, made up of notes payable to several mortgagees and maturing at successive periods, and the whole debt, as well as every part thereof, was secured by the mortgage, and no one mortgagee had the right to take possession of the property when his debt became due, but his lien continued until the last note matured.
    3. Provision as to levy by execution.—A provision in a chattel mortgage that if at any time before the whole secured debt is paid the mortgaged property or any part thereof is levied upon by execution the right of the mortgagor to retain possession thereof ceases, and the mortgagee at once acquires the lawful right to take all of said property, is valid.
    Appeal from the Circuit Court of Washington county; the Hon. George W. Wall, Judge, presiding.
    Opinion filed November 24, 1886.
    Messrs. Vah Hoorebeke & Ford, Messrs. Watts & Forman and Messrs. Casey & Dwight, for appellants;
    that, there being no privity between the mortgagees in the notes described in the mortgage falling due at different times, they should be treated as though several distinct mortgages had been executed to secure the several notes, cited Richardson v. McKim, 20 Kan. 346; Wilson v. Haywood, 6 Florida, 171; State Bk. v. Tweedy, 8 Black. 447; Murdock v. Ford, 17 Ind. 52; Isett v. Lucas, 17 Ia. 503; Mitchell v. Laden, 36 Mo. 326; Thompson v. Field, 38 Mo. 320; Wood v. Trask, 7 Wis. 566; Vansant v. Allmon, 23 Ill. 30; Funk v. McReynolds, 33 Ill. 481.
    Messrs. W. & E. L. Stoker, for appellees;
    cited Arnold v. Stock, 81 Ill. 407.
   Green, J.

This was a trial of the rights of property, had in the circuit court on appeal from the county court, and by consent of parties a jury was waived, the cause was tried by the court, a finding and judgment for claimants resulted and this appeal therefrom was taken.

Claimants, to establish then1 right, relied upon a chattel mortgage, properly executed, acknowledged and recorded, made to them by David McCulloch, conveying the property in controversy, to secure certain indebtedness, and claimed by reason of the levy of certain executions upon said property, and while a portion of the mortgage debt was due and unpaid, the mortgagees, by the terms of the mortgage, were lawfully entitled to take said property and hold it as against appellants, plaintiffs in said executions. A number of the notes secured by the mortgage were executed by the mortgagor and other makers to the First National Bank, one of the mortgagees. Other of the mortgage notes were made by the mortgagor, and sureties, who were mortgagees, and had taken said notes up and substituted for them renewal notes before the levy. And other of the mortgage notes were given by the mortgagor and anoiher maker to W. & E. L. Stoker, also mortgagees, and the consideration therefor was professional services rendered and to be rendered by the payees. On behalf of appellants, as a reason for reversal, it is said a national bank is forbidden by law to loan money on mortgage security, and hence this mortgage is not valid as to all the notes given said First National Bank and secured thereby. It does not appear these notes were for money loaned on the strength of this mortgage as security, but were given for a pre-existing indebtedness, and this mortgage taken as additional security. This we think was a lawful and prudent precaution taken in the interest of stockholders and not prohibited by the federal statute. Again it is urged on behalf of appellants, the instrument relied on is to be construed as a separate mortgage given to each mortgagee to secure him (or where a note is to a greater number, to secure them) to the extent and according to the tenor of their respective notes; and inasmuch as some of said notes matured before the levy, and thereupon the mortgagees, payees thereof, failed to take possession of the mortgaged property, by reason of such laches lost their lien. To sustain this position would require a change of the contract, which, on its face, is a mortgage to all the claimants jointly.

At law they had no separate rights as mortgagees. The mortgage debt is an entirety of $1,895.93, made up, it is true, of notes payable to several mortgagees, and maturing at successive periods. Nevertheless the whole debt, as well as every part thereof, was secured by the mortgage, and no one mortgagee had the right to take possession of the property when his debt became due, but the lieu continued until the last note matured. It is also insisted on behalf of appellants, that said mortgage notes, taken up by the sureties with other notes given in lieu of those taken up, were not paid, and neither the payees nor sureties had a lien therefor on the mortgaged property, but conceding this, still two of the Stokers’ notes were unpaid at the time of the levy. Two years had not then elapsed from the date of recording the mortgage, and by its terms, if at any time before the whole secured debt was paid the mortgaged property, or any part thereof, was levied upon by execution, the right of the mortgagor to retain possession thereof ceased, and the mortgagees at once acquired the lawful right to take all of said property. And this provision iu the mortgage is held to be valid by repeated decisions of our Supreme Court. The evidence also justifies the conclusion reached by the trial court, and denied by appellants, that these notes to the Stokers were given for a valuable consideration and valid debt, and not with intent to defraud, hinder or delay creditors.

It is finally urged as a reason for reversal that the court below erred in finding said mortgage valid for the amount of the whole debt, when in fact the evidence showed a part of such debt had been paid, and the court should have found the amount actually unpaid to enable plaintiffs in executions to pay it, and take the property to satisfy said executions; to all this it is sufficient to reply, the record discloses no such finding as is complained of; no impediment prevented defendants below from paying such unpaid amount, had they been so minded. And further, the accounts between the mortgage creditors or the amounts due them are not subject-matters of adjustment in this proceeding, hut the sole question for determination is,' were the claimants entitled at law to the property in controversy when they gave the notice. "We think the evidence clearly shows that a valid chattel mortgage was made, executed and delivered by the mortgagor to claimants as joint mortgagees, conveying to them the said property to secure the payment of a valid debt; that said mortgage was duly acknowledged and recorded, and by the levy df said executions upon the mortgaged property, while a portion of the mortgage debt remained due and unpaid, the condition upon which the mortgagor might retain possession was broken, and the legal right of the mortgagees to take said mortgaged property at once accrued, and the mortgage being to them jointly, all properly joined as claimants, although one or more of them may then have ceased to have an existing debt secured by the mortgage; hence the finding and judgment was properly for all the claimants, and perceiving no error in the record, the judgment is affirmed.

Judgment affirmed.


author: Pillsbury, J.

text:
    Henry Schmitz v. B. Ritterholz.
    Trespass.—Where for twenty years after the platting of an addition, there was no municipality organized, capable of taking the fee in the streets dedicated to public use by the plat, and after such organization over ten years elapsed before any right to the street was asserted by the village, one who proceeds to tear down fences and buildings, and justifies snch action on the ground that the locus in quo is a street in the village, and that he was ordered by the village trustees to open the streets, should show that the locus in quo, even if originally dedicated as a street, was within the limits of the village, and that the village authorities had legally accepted the dedication.
    Appeal from the Circuit Court of Clinton county; the Hon. Amos Waits, Judge, presiding.
    Opinion filed November 24, 1886.
    Trespass quare clausum fregi% with e’aim for damages for tearing down the barn, shed and fences of the plaintiff ; with justification by the defendant that the locus in quo was a street in the village of Germantown in said county of Clinton, and he was ordered by the village trustees to open the streets, and in doing so necessarily bad to commit the acts charged to be trespasses. The court trying the cause, without a jury, found for the defendant, and entered a judgment for costs against the plaintiff, Schmitz, from which he appealed.
    Messrs. Vah Hoorebeke & Ford, for appellant.
    Messrs. Murphy & Andrews, for appellee.
   Pillsbury, J.

It appears from the evidence that one Schwake, on December 30, 1852, platted an addition to Germantown, which was duly acknowledged and recorded. The surveyor’s certificate, as well as the figures marked upon the plat, shows that lot 17 ” in block “ E ” being the plaintiff’s lot was seven poles wide. All the corner lots were of the same width, the inside lots being eight poles and the streets two poles wide. The first organization of the village was under the act of 1872, and the village trustees in that year caused a map of the village to be made, in which the corner lots, plaintiff’s being one of them, are noted as being but 105^- feet in width. Munster street is marked thereon as running through the village, including Schwake’s addition on the west of plaintiff’s lot. The plaintiff obtained his title to the lot from Schwake in May, 1853, and immediately fenced it and placed his buildings within his inclosure. This fence has remained there ever since until torn down and removed by the defendant. Schwake’s addition, when platted, was in a field surrounded by a fence, and so continued until long after plaintiff fenced his lot. The village authorities, in December, 1885, claiming the fence was in the street, ordered the street opened,, and that the street commissioners remove any obstructions-therein, and acting under this order the defendant tore down the plaintiff’s fence and buildings. Nothing being done toward opening this street for more than thirty years after it was fenced up the presumption ought perhaps to be indulged that the public authorities had abandoned it as a public way, especially as there is no evidence that it ever was opened or worked opposite the lot of the plaintiff. If the evidence was clear that the plaintiff had always claimed adversely to the public, this presumption would most likely be sufficient to establish the fact; but as there was evidence in the ease tending to show that the plaintiff recognized the existence of a street, as platted by Schwake, we are not prepared to say the court was not justified in finding for the defendant upon that point in the case.

There is, however, no evidence in the ease that the village authorities, since its organization in 1872, have ever legislated in any respect concerning the streets and alleys of the village. No ordinance was shown adopting the plat made by Schwake, defining the limits of the village, nor providing against obstructions in the streets, and declaring such obstructions in the streets illegal. Neither does it appear that the map made by it in 1872 was ever adopted or recognized by any action of the village board as correctly describing the streets, alleys and blocks of the village, although it appears to he certified by certain persons describing themselves as trustees, that it is a correct plat of the village; but this can not be held as binding the village board nor equivalent to action by it. Indeed there seems to be an entire lack of evidence in the record that would authorize the village authorities by their street commissioner to enter upon the inelosure maintained by him for over thirty years, and tear down and destroy his buildings; after such a length of time it ought to. appear at least that Schwake addition is a part of the village, and that the village by some appropriate action, as repairing the streets, or by direct legislation, has recognized and accepted the tract platted by Schwake as a part of the village and within its limits. It will be noticed that the defendant justified the destruction of plaintiff’s buildings upon the ground that he was ordered to do so by the village trustees. For nearly twenty years after the platting of Schwake’s addition there was no municipality organized capable of taking the fee in the streets dedicated to public use by the plat, and after such organization over ten years elapse before any right to the street is asserted by the village. Under such, circumstances we think the defendant should show that the locus ím quo, even if originally dedicated as a street, was within the limits of the village as organized, and the acceptance of the dedication by the village authorities in some manner which would indicate that it had accepted the care and superintendence of the streets in that addition. The mere fact that the plaintiff had admitted that he built the fence originally in the street does not authorize the village to tear his buildings down, unless it further appear that it has legally accepted the dedication, and the plaintiff had obstructed the street within the territorial jurisdiction of the village: again, prima facie, the entering upon the premises of the plaintiff and tearing down his improvements makes the defendant a trespasser, and unless he justifies by showing some legal right to do the acts he is a tortfeasor and must respond in damages. He must justify each and every of his acts in order to be exonerated. He claims here that the plaintiff’s buildings were in the public street, but makes no showing where the line of the street is, except by saying that , he measured by a tape line from the fence, and cut down the building where he supposed the line was ; no one can say from an examination of the record that the defendant kept within the limits of the street if any existed at the point in question. If he cut down the building to the line indicated by the plat of 1872, thus narrowing the plaintiff’s lot to 105-| feet, it is clear that he has gone beyond the line of street, as Schwake’s plat and dedication show his lot to be ten feet wider. The evidence is not clear as to the distance from the line between the lots to the center of the street as measured by the defendant. The defendant cut down the plaintiff’s barn, and as he takes the burden of showing that he kept within the line of the street, he should establish that he did not go beyond the line of the street according to the original plat and dedication of Schwake; that survey and plat determines the right of the plaintiff to his lot and the public to the street. This he has not done, and consequently he has failed fully to justify his forcible entry upon the premises of the plaintiff. For the reason stated we think there should be another trial of the cause and therefore reverse the judgment and remand the cause.

Eeversed and remanded.


text:
    Margaret Hart v. William H. Duddleson.
    1. Sale op intoxicating liquor—Instructions.—In an action brought by a wife against a saloon keeper for selling and giving intoxicating liquor to her husband, causing his intoxication, from the effects of which it was claimed he died, an instruction which required the plaintiff to prove that the intoxication was the “immediate or proximate cause of the death’.’ and that. “ the actual damages claimed were the direct consequences of the intoxication ” was proper.
    2. Verdict sustained by evidence.—The court is of opinion that the verdict in this case was authorized by the evidence. Although appellant, by proof of the facts and circumstances under which her husband died, made a strong prima facie case of death from intoxication, the evidence of physicians who are in no way discredited, so far overcomes that proof as ro entitle appellee to the verdict.
    Appeal from the Circuit Court of Crawford county ; the Hon. William C. Jones, Judge, presiding.
    Opinion filed November 24, 1886.
    Messrs. Callahan & Jones and Messrs. Robb & Bradberry, for appellant;
    cited C., R. I. & P. R. R. Co. v. Moffitt, 75 Ill. 524; Hoener v. Koch, 84 Ill. 408; Smith v. Stevens, 82 Ill. 554; Kent’s Com. 463, 465; Schroder v. Crawford, 94 Ill. 357; Hackett v. Smelsley, 77 Ill. 100.
    Messrs. Parker & Crowley, for appellee.
   Wilkin, P. J.

This suit was brought by appellant against appellee for selling and giving intoxicating liquors to her husband, Jacob Hart, causing his intoxication, from which it is alleged he died, thereby injuring her in her property and means of support. Jacob Hart was seventy-seven years old, in general good health, but addicted to the excessive use of intoxicating drinks. On the last day of November, 1885, he left his home sober, and In his usual health, and went a distance of some eight miles to the village in which the defendant kept a saloon. While there he became drunk, and it is not denied that he drank at defendant’s bar twice or oftener, and that he got two pints of liquor which he carried away with him. He started home in the afternoon of that day, which was Monday, very much under the influence of liquor, and near night was found by a friend some two miles from the village going in a direction opposite from his home, seemingly bewildered and still very much intoxicated. By this friend he was taken to a neighboring farm house and there kept and cared for until the following Thursday, when, about noon, he died. When he reached the farm house he was unable to get off his horse, and was so drunk that he could not stand or walk without assistance. He was put to bed about nine o’clock, being then unable to undress himself. The two pint bottles were found in his pockets partly full of liquor. During that night he was restless, breathed heavily and groaned as if in pain. In the morning he was found to be unconscious, and so continued until he died. On Tuesday Dr. Bibbie was sent for, who made a prescription for him, but did not see him until Wednesday. He continued to treat him until his death. No other physician saw him. The ground of defense was that intoxication was not the cause of death. The verdict and judgment below was for the defendant, and the case is in this court by appeal, and two grounds of reversal are urged. It is first insisted that erroneous instructions were given by the trial court on behalf of defendant, and secondly, it is urged that the verdict of the jury was not authorized by the evidence. The objection to most of the instructions complained of is that they inform the jury that plaintiff could not recover unless she had shown injury to her means of support, whereas it is said there is evidence tending to prove the allegation that she was injured in her property. The objection may be disposed of by simply saying that no such evidence is pointed out, and upon a careful examination of the bill of exceptions as abstracted we find none. The third and tenth instructions are objected to because the third required plaintiff to prove that the intoxication was the “immediate or proximate cause of the death,” and the tenth, “that the actual damages Claimed were the direct consequence of the intoxication,” the objection being that the terms “immediate or proximate and direct ” are used. We think these instructions by apt words announce the correct rule of law in such cases. Hilliard on Torts, Vol. 1, Sec. 9, page 78 ; Shugart v. Egan, 83 Ill. 57; Schmidt et al. v. Mitchell, 84 Ill. 195. The difficulty, if any, is hot in any uncertainty as to the rule of law, but as was said by Justice Scholfield in Shugart v. Egan supra, “in satisfactorily determining whether particular acts were to be 'regarded as the immediate or remote cause.” It is evidently here that counsel for appellant fall into error, for in the argument they assume that 'under these instructions there could be no recovery whore certain consequence's, such as paralysis or pneumonia, falling from a horse, exposure to cold and freezing, falling into a stream and drowning, resulted from intoxication. The law would undoubtedly treat death in any of the supposed cases as the immediate and proximate result of intoxication. In Emory v. Addis, 71 Ill. 273, the deceased became intoxicated and the next morning was found on a railroad track evidently killed by a train, and the court say : “ There was sufficient evidence to show that the proximate cause of death was the intoxication. So in Schroder v. Crawford, 94 Ill. 357, it is held that a recovery may be had in the cases put by counsel upon the express ground that within the provisions of the statute the intoxication is the proximate cause of death. In fact the jury were instructed to the same effect in this ease at the instance of appellant. The instructions, taken altogether, present the law of the case correctly as we understand it. It can not be said there is no evidence to support" the verdict, unless the position that the opinions of the medical witnesses sworn on behalf of appellee were incompetent, is tenable. That evidence could only be incompetent because of the manner in which the opinions were called for, or given. No objection having been made to such evidence on the trial none can be successfully urged here. It must therefore be conceded that there is some evidence upon which to base the finding of the jury, and it only remains to be seen whether or not the verdict is so manifestly against the evidence as to .indicate that the jury was influenced by prejudice or passion. If not, neither the court below nor this would be authorized to set it aside. It can not be denied that to the common observation it is difficult to separate the death of Jacob Hart from his intoxication the Monday night before he died, and in the light of all the evidence say that the relation of cause and effect did not exist. The attending physician, however, swears that he died from paralysis originating in the brain and “ caused by old age.” He also swears on cross-examination, “ Intoxication might possibly have produced it; fatigue might have caused it; these causes might have possibly produced the paralysis, but it is not probable that they did.” The evidence of this witness as well as that of two other physicians who swear that they heard all the evidence, is to the effect that the intoxication was in no way the cause of the paralysis of which they agree he died. Three other physicians were sworn, two on behalf of appellee, neither of whom give a direct opinion as'to whether the intoxication was or was not the cause of death, and a third, introduced by appellant, who is of opinion that but for the liquor he drank and his intoxication, “he would have had no trouble at that time.” We do not overlook the fact that the attending physician shortly after his patient died made statements somewhat contradictory of his testimony upon the trial, though the language which he says he used is not wholly irreconcilable with his sworn statements. Notwithstanding appellant by proof of the facts and circumstances under which her husband died made a strong prima facie case of death from intoxication, yet the evidence of physicians, who are in no way discredited, so far overcomes that proof as to entitle the appellee to the benefit of a verdict in his favor. The judgment of the circuit court will be affirmed.

Affirmed.


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    Friedman, Sheirick & Co. v. Thomas L. Roderick et al.
    Mechanic’s men—Equitable assignment.—A party for whom a contractor had built a house, gave to such contractor his note, in which was recited the consideration, with a description of the premises, and a statement that the giving the note should not be a waiver of the lien upon the premises. The contractor delivered this note, not indorsed, to plaintiffs in error as collateral security for his debt to them. Upon the note becoming due, and their claim remaining unpaid, plaintiffs in error were entitled to maintain a petition in the nature of a bill in equity in the name of the contractor and in their own names, asking that an account be taken, that- the'lien be foreclosed, and that an equitable disposition of the funds be made. The most that the contractor can require of them is, that they shall indemnify him against costs.
    Error to the Circuit Court of Crawford county; the Hon. William C. Jones, Judge, presiding.
    Opinion filed December 16, 1886.
    The facts may be briefly stated to be that John S. Castle, a contractor and builder and dealer in building material, erected a dwelling house for defendant in error, Roderick, upon which he liad a lien for his payment. After completion of the house the amount due was adjusted and Roderick gave Castle his note for $175, in which was recited the consideration, with a description of the premises and a statement that the giving the note should not be a waiver of the lien upon the described premises. Some of the material used in the house had been purchased by Castle of the plaintiffs in error, and being still indebted to them, be delivered the note, unindorsed, to them, as collateral security for his debt to them. When the note became due, and their claim remaining unpaid, they caused the present petition, in the nature of a hill in equity, to be filed in the name of Castle, as well as their own names, setting forth the facts in proper form, showing that Castle had a lien upon the premises and claiming an equitable interest in the proceeds to the extent of the debt of Castle to them, and asking that an account might be taken of its amount and Castle’s lien be foreclosed, and for an equitable disposition of the funds collected. Castle filed an affidavit that he had not authorized the commencement of the suit in his name and consenting that it might be dismissed as to him, which the court did, upon motion of defendant Roderick. A demurrer was then interposed and sustained to the bill or petition and it was dismissed at costs of plaintiffs in error, and they caused the record to be removed into this court.
    Messrs. Callahan & Jones, for plaintiffs in error.
    Mr. J. C. Maxwell, for defendants in error.
   Pillsbury, J.

The acceptance of the note by Castle, wherein was recited the consideration and expressly reserving his lien as security, did not operate to discharge the lien, and the mere deposit of it without indorsement with the plaintiffs in error as collateral security for his debt to them, did not divest him of his legal ownership in the note, the debt evidenced by it nor the lien securing it. They acquired by the delivery to them of the note, a contingent equitable interest only in the proceeds or avails of it when collected, in case their claim upon Castle was not sooner paid, and had they neglected or refused to perform their duty as holders of a collateral security to collect and account for its proceeds, there can be no question that Castle could have filed his petition to foreclose his lien against the premises, made them parties and had an account taken, and the funds arising from the foreclosure distributed between himself and them according to their respective equities therein. This results from the fact that no severance in the legal ownership of the debt, note or lien had ever taken place, but it was still vested in Castle. He had made no attempt to nor had he legally assigned either to plaintiffs in error, so as to allow them to sue in their own name. As pledgees of the note as collateral security they assumed the position of a trustee for the pledgor to return it to him if redeemed, and if not redeemed to collect it when it became due, apply a sufficient amount of the proceeds to the satisfaction of their claim for which it was pledged, and pay the surplus to the pledgor. Union Trust Co. v. Rigdon, 93 Ill. 458; Zimpleman v. Veeder, 98 Ill. 613. They could not use it to his detriment, sell it, nor except under special circumstances, compromise with the maker for a less sum than was due upon it without making themselves liable to their debtor for its face value, as here no special authority was conferred upon them for any such disposition of the collateral. Ibid.; Gartuch v. James, 12 Johns. 145.

The law cast upon them the duty of using ordinary diligence to preserve and collect the collateral, and they ought to find in the same law an ample remedy to enable them to perform that duty; as we have seen, Castle has never parted with his general ownership in the debt or the note evidencing it, and when he delivered the note to them it passed to them the equitable right to receive the money when it became due (Dixon v. Buell, 21 Ill. 204), and he conferred upon them authority to use his name in any legal proceeding that might become necessary to give full effect to such equitable assignment (Eastman v. Wright, 6 Pick. 316), and to enable them to fulfill their duty as holders of the security.

Major v. Collins, 11 Bradwell. 658, was a case where the contractor filed his petition to foreclose a mechanic’s lien, and the equitable assignee of the avails of the lien came in and filed a cross-petition, to have the same paid to him when collected, whereupon the contractor filed a written stipulation dismissing his original petition, which the court refused to permit him to do, and this action of the court was held proper, as he was but a nominal party, and the equitable assignee had the right to prosecute the petition for his benefit. This case seems to be decided upon sound equitable principles, and we think, has a direct bearing upon the case at bar. The plaintiffs in error should be allowed to maintain the petition in the name of Castle, and have an account taken of the amount due them from Castle after the premises have been sold, in order that the funds may be equitably distributed. The most that Castle can require of them, is that they shall indemnify him against costs, as in cases at law, where a party brings a suit in the name of another for his use. For the reason stated, the decree will be reversed, and the cause remanded for further proceedings.

Reversed and remanded.


author: Wilkin, F. J.

text:
    Frederick B. Suppiger et al. v. Gerhard W. Garrels et al.
    1. Subrogation—Stranger or volunteer.—A mere stranger or volunteer can not, by paying a debt for which another is bound, be subrogated to the creditor's rights in respect to the security given by the real debtor.
    2. Who is stranger or volunteer.—A stranger, within the. meaning of this rule, is not- necessarily one who has had nothing to do with the transaction out of which the debt grew. Any one who is under no legal obligation or liability to pay the debt is a stranger, and if he pays the debt, a mere volunteer,

      3. Subrogation in equity.—Subrogation in equity is confined to the relation of principal and surety and guarantors, to cases where a person to protect his own junior lien is compelled to remove one which is superior, and to cases of insurance,
    4. Hot entitled to be subrogated.—Upon the facts in this case, the court is of opinion that R. & Co. were under no obligation to pay the note in question, but were mere volunteers, but if they were under such obligation, the same obligation would exist as regards the notes held by appellees, and therefore in neither case would they be entitled to be subrogated to appellees’ rights.
    Appeal from the Circuit Court of Jefferson county; the Hon. C. C. Boggs, Judge, presiding.
    Opinion filed January 8, 1887.
    Previous to September 25, 1870, there had been a correspondence between F. Ryhiner & Co., of Highland, Illinois, and Gruner, Haller & Co., of Berne, Switzerland, on the subject of loaning money of capitalists residing in Switzerland, in this State. Of that date the former addressed to the latter a lengthy communication in the nature of a proposition to become their agents to negotiate such loans. In giving the detail of how the loans should be secured, they say “ the note will he made directly to the creditor interested or to your name or ours. Whenever the note passes into other hands it will be desirable to have this evidenced by an indorsement, although under our laws the bearer of such a note will be considered the rightful owner.” Referring to the fact that in determining the value, title, etc., of lands taken as security, they will be allowed under our laws to be their own judges. They say: “Herein, however, lies principally our responsibility toviard the creditors.” The communication closes by stating, “The result of our conversation can be briefly stated thus.” Then follows a summing up of the proposition under heads or articles numbered from one to seven. The second is as follows: “Ryhiner & Co. obligate themselves-to loan such capital upon first mortgages and prior or superior liens to the rights of wives, children or other creditors of the debtor, on real estate in the State of Illinois. The value of the security (without the separate valuation of the buildings on farm lands) shall at least represent double the amount loaned thereon. The legal interest, ten per cent, per annum, shall be stipulated in favor of the creditor. Ho such loan shall be made for less than three, nor for more than six years, However, for the purpose of rendering easier partial payments, the notes, with the consent of the creditors, can be drawn to mature at different times within the above limit of three to six years. The amount on the separate eventual wished partial obligations or notes shall be determined on the instruction of Gruner, Haller & Co.; but the same shall, if possible, be not less than $200 for each separate note. Ryhiner & Co. are responsible for the duties incumbent on each official, especially for the strict observance of the just above recited principal rule concerning mortgage loans; for the observance of all legal directions in regard to making title and the returning thereof in the public boobs, and for all legal precautions which might be necessary for the protection of the rights of creditors.” The other articles, under the proofs, have no bearing upon the case. This communication was published in Switzerland by the two firms in the form of a circular letter to their customers. Under this arrangement business was carried on by the two firms for many years, and large sums of money loaned in various counties of this State. On the 17fh day of January, 1880, Ryhiner & Co. loaned $700 to Hardin, Barker and wife, and took their three notes for two, two and three hundred dollars, due in three, live and seven years, secured by deed of trust to A. F. Bandolier as trustee, with George W. Cone as successor, etc. These notes were each indorsed by Byhiner & Co., as follows—“ For value received we assign the within note to Messrs. Gruner, Haller & Co., Berne, Switzerland, or order, limiting our warranty, and liability as indorsers, to the points specially set forth in article two of general conditions as contained in the circular issued by Messrs. Gruner, Haller & Co., of Berne, in ¡November, 1870. Highland, Illinois, 24th February, 1880. F. Ryhiner & Co.”—and forwarded to Gruner, Haller & Co. The first note was by them assigned to Mrs. G. Imcr, and the other two to parties who afterward assigned them to the complainant Garrels. The first note was designated by the number 1877, and July 19, 1883. Ryhiner & Co., in a letter to Gruner, Haller & Co., wrote: “Further, Hardin-Barker N., 1877, $200 paid, with interest until 17th inst.” Thereupon Gruner, Haller & Co. paid Mrs. Imer, took up the note and forwarded it to Ryhiner & Co., at the same time charging them with the amount. The installments of interest on the other notes falling due July 17,1884, and January 17,1885, were paid by Gruner, Haller & Go. to the then holders of the notes, and the amount charged to the account of Byhiner & Co. Shortly prior to the assignment of Byhiner & Go. the two firms had a settlement, and it was agreed, all interest on the loans due and unpaid to March 1, 1885, should go to Byhiner Co., and that accruing after that date, to Gruner, Haller & Co. ¡Nothing xvas paid on the loan by Barker. About April 30, 1885, Byhiner & Co. made an assignment to appellants. The first of the Barker notes came to their hands, but without assignment to Byhiner & Co., December 1, 1885. Appellees, Garrels & Cone, filed their bill to foreclose the deed of trust on the two notes held by Garrels, making appellants parties, and alleging that their interest is subject to the rights of complainant Garrels. Appellants answer, setting up that they are the legal owners of the first $200 note, and as such entitled to a prior lien. They also filed a cross-bill, alleging that said $200 note being due, and Barker failing to pay it, Ryhiner &
      Co. made payment thereof to Mrs. Imer, and that she transferred it to them by delivery, whereby they became the legal holders of the same and entitled to all the rights and interests of the said Mrs. Imer in said note and deed of trust. They also set up in this cross-bill that they paid the installments of interest above mentioned, and claim that they should be subrogated to the rights of the then holders of said notes, and they pray that they may be placed upon the same footing as complainant Garrels, in the original bill, sharing pro raía with him in case the property does not sell for enough to pay both in full. Garrels and Cone answered this cross-bill, denying that appellants became the legal owners of the notes and interest mentioned therein, or that they are, as against them, entitled to be subrogated to the rights of Mrs. Imer or the holders of the other notes on which the interest was paid. Barber and wife made default, both on the original and cross-bill. The court below decreed a foreeosnre in favor of complainants in the original bill, and found for them in the cross-bill ; also decreed in favor of appellants on the cross-bill as against Barker and wife, but postpones them as to Garrels; and this last ruling is the only question here presented for decision,
    Messrs. Krome & Hadley, for appellants;
    as to subrogation, cited Lochenmeyer et al. v. Fogarty, 112 Ill. 572; Beaver v. Blanker, 94 Ill. 175; Hough v. Ætna Life Ins. Co., 57 Ill. 318.
    Mr. W. C. Kueffner and Mr. C. H. Burton, for appellees;
    that a mere stranger or volunteer can not, by paying a debt for which another is bound, be subrogated to the creditor’s rights in respect to the security given by the real debtor, cited Hough v. Ætna Life Ins. Co., 57 Ill. 318; Beaver v. Slanker, 94 Ill 175; Young v. Morgan, 89 Ill. 203; Sheldon on Subrogation, § 11; Bishop v. O’Conner, 69 Ill. 431; Wolff v. Walter, 56 Me. 292.
   Wilkin, F. J.

Appellants base their claim to share equally with appellee Garrels, upon the doctrine of subrogation. Unless appellants have shown that Byhiner & Oo. were in some way liable to pay the note and interest in question, that doctrine has no application. A mere stranger or volunteer can not, by paying a debt for which another is bound, be subrogated to the creditor’s rights in respect to the security given by the real debtor. Hough v. The Ætna Life Ins. Co., 57 Ill. 318; Young v. Morgan, 89 Ill. 203; Beaver v. Slanker, 94 Ill. 175. A stranger within the meaning of this rule is not necessarily one who has had nothing to do with the transaction out of which the debt grew. Any one being under no legal obligation or liability to pay the debt is a stranger, and if he pays the debt, a mere volunteer. In Bishop et al. v. O’Connor et ah, 69 Ill. 431, the Supreme Court say the doctrine of subrogation in equity is confined to the relation of principal and surety and guarantors, and to eases where a person, to protect his own junior lien, is compelled to remove one which is superior, and to eases of insurance. Sheldon on Subrogation, Sec. 11. What relation, then, did Ryhiner & Co. bear to the notes at the time they claim to have made the payments? In view of the correspondence between them and Gruner, Haller & Co. it can not be said that they became liable as indorsers, even if they had not qualified their liability by the indorsement. The assignment was for the sole purpose of transferring the legal title to the parties to whom the notes belonged, and the ordinary relation of indorser and indorsee did not therefore exist. The indorsement, however, did specifically provide that no liability beyond that arising under article two should be created by it. The liability of Ryhiner & Co., therefore, if any existed, grew out of their agency and not-because of their indorsement. If liable under their contract of agency, that liability must have resulted from their failure or neglect to perform their contract of agency, of which there is no proof or pretense. Therefore Byhiner & Co. were under no legal obligation whatever to pay the note to Mrs. Imer, or the interest on the other notes.. But it is said that Barker alone can raise this question. When it is considered that the. attempt here is, to affect the rights of appellees by depriving them of a part of the security out of which they may make their debt and thereby compel them to take only a pro rata part thereof, it is impossible, from principle or authority, to sustain such a position. White et al. v. F sher et al., 62 Ill. 258. Again, the doctrine invoked by appellants rests in equity, and can only be applied with a due regard to the legal and equitable rights of others. Could there be any legal, equitable or moral obligation resting upon Ryhiner & Co. to pay the Inner note, or the installments of interest, which does not also exist as to the notes held by apjmllee Garrels? How can it be said that.they were obligated, either as agents or indorsers, to pay the first note, but not the other two, all growing out of precisely the same transaction and transferred by the same indorsements? There can be but one answer to these questions. Whatever duty they owed to the assignee of the first note, they also owed to the assignees of the second and third. Whatever justifiable motive may have prompted them, even outside of a legal obligation to pay the one, ought, in equity and good conscience, to prompt them to pay the others. Therefore the decree giving the holder of' the second and third notes a preference is equitable and just as between him and Ryhiner & Co. or their assignees. Appellants are in a dilemma. If they say Ryhiner & Co. were under no obligation to pay Mrs. Imer, not being in the position of purchasers or assignees, they place themselves in the attitude of volunteers, and for that reason have no stand ingas against appellee. If they say Ryhiner & Co. were under obligation to pay that note they thereby admit the same obligation to appellee and must fail. In any view of the case it is clear that the decree of the circuit court is right.

Affirmed.


text:
    E. Peterson v. James M. Lawrence.
    1. Certiorari.—The office of the writ of certiorari is to bring before the court awarding it the record of the proceedings of the inferior tribunal, and if from the record it shall appear the proceedings of the inferior tribunal were irregular for want of jurisdiction of the parties and subject matter, or the court exceeded its jurisdiction, or otherwise proceeded in violation of law, the court should quash and vacate the entire proceedings, otherwise if. should dismiss the writ.
    2. Same—Laches.—Mere lapse of time alone, short of the limitation for prosecuting a writ of error, will not bar the issuing of a common law writ of certiorari.
    3. Justice op peace exceeding jurisdiction—Drainage commissioner.—Appellant, a justice of the peace, in August, 1885, upon the petition of a land owner in the district, issued a citation commanding appellee, who had been appointed in 1879 a drainage commissioner by appellant’s predecessor, to appear before him and make report. Appellee reported, appellant made an order rejecting appellee’s report, finding the sum of $5,214.99 in his hands belonging to said district, and ordering him to pay over and deliver the same, together with books, etc., to the three commissioners appointed by appellant as appellee’s successors. Upon writ of certiorari, held, that the court properly quashed the proceeding and order.
    Appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed January 8, 1887.
    Mr. W. P. Bradshaw and M. H. S. Pettingill, for appellant ;
    as to writ of certiorari, cited Murray v. Murphy, 16 Ill. 277; Cushman v.Rice, 1 Scam. 566; White v. Frye, 2 Gilm. 65; Lord v. Burke, 4 Gilm. 367; Russell v. Pickering, 17 Ill. 32; First Nat. Bank v. Beresford, 78 Ill. 392; Hough v. Baldwin, 16 Ill. 295 ; Clifford v. Waldrop, 23 Ill. 337; Davis v. Randall, 26 Ill. 245.
    Mr. John G. IrwiN, for appellee ;
    cited Doolittle v. G. & C. U. R. R. Co., 14 Ill. 381; C. & R. I. R. R. Co. v. Fell, 22 Ill. 333; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 105; Com’rs v. Supervisors, 27 Ill. 140; McManus v. McDonough, 107 Ill. 95 ; Gerdes v. Champion, 108 Ill. 137; Supervisors v. Magoon, 309 Ill. 142; Deer v. Cornis, 109 Ill. 479; Ennis v. Ennis, 110 Ill. 78; Hamilton v. Harwood, 113 Ill. 154.
   Green, J.

On Dec. 29, 1879, W. H. Wilson, justice of the peace, before whom the “elm slough cut-off drainage district” was organized, appointed appellee drainage commissioner thereof under the drainage act then in force. Appellee accepted the appointment, qualified, entered upon the duties of and held said office from that date. The tax levied to construct the works of said district was originally $5,000, afterward reduced by said justice to $4,200. On Aug. 25, 1885, appellant, a justice of the peace and the successor in office of said Wilson, upon the petition of a land owner in said district, issued a citation commanding appellee to appear before him on Sep. 2, 1885, and render an account of the money collected by him as commissioner, the manner in which the same was expended, also an itemized account, under oath, of the amount due him for services and expenses from the date of his appointment. On September 2d appellee appeared as commanded; the proceeding was continued until September 11th, when appellee again appeared, filed his report as such commissioner, showing the amount collected and how the same had been expended; also an itemized account, under oath, of such receipts and expenditures, including the amount he claimed for his services as commissioner; the proceeding was then again continued until Oct. 17, 1885, at which time appellee appeared and also three persons claiming to be commissioners of said district, appointed by the order of appellant on Sep. 7, 1885.

These three persons claiming to be such commissioners, filed objections to said report of appellee with appellant, who heard evidence, and on Oct 17, 1885, made an order, in substance, finding $5,214.99 in the hands of appellee, as such commissioner, belonging to said district, ordering him to pay said sum to said three persons, Moore, Shirmer and Strickeljohn, as his successors in office, and deliver to them all books, papers, bids and contracts in his possession, belonging to said district, and disallowing and rejecting said report, and disallowing orders to the amount of $2,754.70, upon the treasurer of said district, issued to contractors by appellee as commissioner.

On Nov. 11,1885, appellee filed his petition for the'common law writ of certiorari, in the circuit court, to reverse and quash said order and proceeding, setting forth the foregoing facts, proceeding and order; also alleging said Moore, Shirmer and Strickeljohn had been instructed to demand from petitioner said sum so ordered to be paid them, and to bring suit on his official bond to recover the same upon his refusal to make such payment to them; that petitioner had no knowledge of the appointment by the county court of commissioners to succeed him in his office or of auy order removing him therefrom, or of the appointment of said three named persons as commissioners of said district by any court having authority ; that appellant did not have jurisdiction to make said order or pass upon, approve or reject said report of petitioner or to order the payment of said sum, or delivery of said books, etc., to said pretended successor in office ; that by law no appeal from said order is provided; prays for writ of certiorari requiring Peterson to certify and bring before the circuit court the record of said proceeding, citation and petition therefor, report of petitioner, vouchers accompanying the same, notices pertaining to said proceeding, papers and orders made therein. The writ as prayed for was issued.

Appellant appeared at the return term in the circuit court and moved to quash the writ; the motion was denied, and thereupon appellant filed his return to the writ set up therein, and brought before the court the record of proceeding, order, etc., as commanded in the writ, and also set up in his return, and brought before the court an order (not a part of said proceeding) made by him as justice of the peace and successor in office of said Wilson on Sep. 7, 1885, appointing said three persons commissioners of said drainage district, together with their official oath and bond approved by him.

The court heard the cause upon the record, found appellant exceeded his jurisdiction as justice of the peace in said proceeding and acted contrary to law, whereupon appellant entered his motion for a new trial, which the court overruled, and ordered that the record of said proceeding be quashed and appellant pay the costs, to reverse which order this appeal was taken.

We deem it unnecessary to advert to other than three of the points made by counsel for appellant and insisted upon as sufficient to require reversal; and of these, first, it appears appellant, upon the hearing in the court below, asked to be permitted to introduce evidence to prove that said Moore, Shirmer and Strickeljohn, after their appointment and qualifying as commissioners, organized, by electing Moore chairman, Shirmer secretary, and appointing a treasurer—not one of their number—who gave bond as required by law, and after so organizing, collected money belonging to the district, made contracts, and paid out money in the name of the district. Upon objection being made on behalf of appellee, this evidence was not admitted by the court and such decision is assigned for error.

To be admissible, the evidence should prove or tend to prove facts relevant to support appellant’s proposition “that the writ of certiorari ought to have been quashed.” Counsel for appellant claim it was relevant because if admitted, the facts would have been proven that said three persons, claiming to be duly appointed drainage commissioners, qualified and entered upon their duties as such by collecting money, making contracts and paying out money in the name and on behalf of said drainage district, and these facts, if established, required the quashing of said writ because the parties affected by such acts could not be placed in “ statu quo” if the record and order complained of be quashed.

We do not think so. The only parties that could be affected by such acts were Moore,' Shirmer, Strickeljohn, those with whom they dealt, and the drainage district. The three claiming to be commissioners and those with whom they dealt were bound to know the law, and all acted at their peril in so dealing together; if money belonging to the district was unlawfully collected and expended, those doing such unlawful acts would be liable to the district for the money so collected and received, and the contracts made on ' behalf of the district without lawful authority were not binding; and as nothing in the record or refused evidence indicates that the pretended commissioners or those with whom they dealt, were not able to refund all money by them unlawfully received and expended belonging to the district, or that the district could not collect it of them, no right of the public is interfered with or the district made liable to loss by quashing the proceeding and order of appellant. The refused evidence was not relevant to support any lawful defense and ought not to have been admitted. It is not insisted on behalf of appellant that appellee was not entitled to the common law writ of certiorari, because by statute he is given the right to appeal and because he was guilty of laches in not taking an appeal from the judgment in the ordinary way. The common law writ of certiorari will lie only to inferior tribunals or jurisdictions, where no appeal or other mode of directly reviewing their proceedings is provided by law; and we apprehend the case at bar comes directly within the exceptions named in this rule, because we find no right of appeal provided for in this class of cases, either in the general statute relating to justices of the peace or in the drainage act under which the appellant claims jurisdiction, and such right is not given by the common law; nor was appellee barred from the remedy of certiorari, either because he failed to take an appeal, which would have been nugatory, or because of an unreasonable delay in applying for the writ. The proceeding before appellant ended and the order complained of was made Oct. 17, 1885, and the petition for the writ was filed Nov. 11, 1885. Mere lapse of time alone, short of the limitation for prosecuting a writ of error, will not bar the issuing of a common law writ of certiorari, and in this case nothing appears to have been done during the period between October 17th and November 11th based upon the assumed validity of the proceeding and order sought to be quashed, by reason of which the declaring such proceeding and order invalid would result in producing great public detriment and inconvenience. Hence the delay mentioned was not such laches as barred appellee from this remedy, and the motion to quash the writ was properly overruled. Hyslop v. Finch, 99 Ill. 179. The remaining and important question is, had appellant, as the successor in office of Wilson, jurisdiction to entertain objections to the report made to him by appellee as drainage commissioner of “the elm slough cut-off drainage district,” hear evidence in support of said objections, thereupon reject said report and make the order complained of?

We are asked on behalf of appellant to hold such jurisdiction to have been given him by the drainage act of 1879, as I changed and amended by the drainage acts of 1881, 1883 and' 1885; and to support this view, Secs. 46,47, act 1879, Sec. 37, act of 1881, Secs. 26, 33, 42, 46, act of 1833, Secs. 26½, 37, 42, 44, 48, 49, 55, 58, 62, act of 1885, are cited and relied on. We have examined each of said sections and also the several acts, but fail to find therein provisions giving appellant the power and jurisdiction claimed for him. We do find that by the provisions of the act of 1879, appellee was lawfully appointed drainage commissioner, although the estimated cost of the work of the district was $5,000, and that appellee became bound to perform the duties of that office, among which (up to July 1, 1885,) one was, to report to the justice who appointed him or to his successor in office at least once a year, the amount of money by him collected as commissioner and how the same was being done, and penalties for failure to make such report were provided by the statute; but no provision is made in either or any of said acts, whereby the justice appointing, or his successor, shall hear objections to such report, evidence in support thereof, judicially determine the amount of money belonging to the district in the hands of the commissioner, or direct the payment of it by him to persons named by the justice.

By the act of 1885, Sec. 41, the law was changed, and the report before then required to be made to the justice, is to be made to the county court, and thereupon certain proceedings, not mentioned in prior acts, are to be had touching said report.

The conclusion reached from the examination made is, that appellant had no authority or power under any law in this State, to proceed as he did and make the order rejecting appellee’s report, finding the sum of §5,214.99 in his hands belonging to said district, ordering him to pay over and deliver the same together with books, etc., to Moore, Shirmer and Stricbeljohn as his successors in office, and disallowing orders issued by appellee. By referring to Sec. 48 of the act of 1886, it will be seen where the cost of the proposed ditch, etc., will not exceed §2,000, the proceedings for organization may be had before a justice of the peace, and by See. 49, same act, in such case the justice shall appoint three commissioners for the district.

By Sec. 62, same act, is provided: On the first Monday of September, 1885, in each district heretofore organized under this act, and on the first Monday of September after- any district may be hereafter organized under this act, the county court shall appoint three commissioners for each respective district, one to serve one year, one for two years, and one for three years, from the date of the first appointment under this section, and on the first Monday of September of each year thereafter, the court shall appoint one commissioner of said district, who shall hold his office for three years, and until his successor is chosen and qualified.” From these sections of the act, in force July 1, 1885, it appears the power to appoint successors in office to appellee is vested and was vested in the county court, and not in appellant., at the time the latter assumed to appoint such successors. And by Sec. 65, same act, appellee is required to pay over and deliver the money, boobs, etc., in his hands as commissioner, to those appointed his successors by the county court, and they are the only body when qualified and organized who could lawfully receive the same from him. This being the .law at the time appellant ordered appellee to pay over and deliver to Moore, Shirmer and Sticblejohn money, books, etc., belonging to the district, such order was not only made without authority but required appellee to do an unlawful act in violation of his official duty. When the county court appoints his successors, and they qualify and organize, he can lawfully transfer and deliver to them the funds and property of the district in his hands and be protected in so doing'; and if the county court refuse or neglect to appoint his sxiccessor, it can be compelled to act by mand :- mxxs. We think none of the errors assigned are well assigned. The duty of the coxxrt below in the premises was imperative to render judgment as it did. Whatever may be the difference in character and extent of remedy afforded by the common law writ of certiorari under the decisions of courts of last resort in different States, oxxr Supreme Coxxrt has defined and settled it in this State. If, from the record, it shall appear the proceedings of the inferior tribxxnal were irregular for want of jurisdiction of the parties and snbject-mattex’, or the court exceeded its jurisdiction, or otherwise proceeded in violation of law, the court shoxxld quash and vacate the entii’e proceeding, otherwise dismiss the writ. Commissioners v. Supervisors, 27 Ill. 140.

The object of the writ is to have the proceeding of the infex-ior court quashed and annulled altógethei". The hearing of the common law writ of certiorari consists of an inspection by the court of the record brought before it, for the purpose of determining whether the inferior tribunal has proceeded ix-regxxlarly or exceeded its jurisdiction. Deer v. Commissioners, 109 HI. 379, and cases there cited.

“ The office of the writ is only to bring before the coxxrt, awarding it the record of the proceedings of the inferior tribunal, and the judgment must either be that the writ be quashed and a procedendo awarded, or that the record of the proceeding be quashed.” Hamilton v. Town of Harwood, 113 Ill. 154. The coxxrt below inspected the record, followed and adopted the rale announced in the cases cited and thereupon quashed the proceeding and order complained of. The judgment is right and is affirmed.

Judgment affirmed.


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    St. Louis, Alton & Terre Haute R. R. Co. v. David Huggins.
    1. Testimony of employes—Instrccttoits.—In the absence of all proof of Mas or prejudice resulting from their employment, an instruction to the effect that if the jury believed from the evidence that the employes had testified under fear of losing their employment and a desire to please their employer, they could take such circumstances into consideration in weighing the evidence, was erroneous. • The evidence of employes should be tested and weighed as that of other witnesses.
    2. Negligence.—When the negligence complained of is a failure to perform a statutory duty, the only question of fact for the jury is, whether there was such failure. Upon the jury finding that there was such failure, negligence is judicially implied, andJ^dda-mBst-be-declared by.the.court.
    Appeal from the County Court of Perry county ; the Hon. S. G. Parks, Judge, presiding.
    Opinion filed January 8, 1887.
    Mr. R. W. S. Wheatley, for appellant.
    Mr. H. P. Scott and Mr. R. M. Davis, for appellee.
   Wilkin, P. J.

This suit originated before a justice of the peace, and was brought to recover the value of a mare, alleged to have been killed on the road of appellant by its engine or cars, it having failed to maintain suitable fences and gates as required by Sec. 62, C. 114, R. S.

The trial before the justice of the peace resulted in a judgment for appellant for costs, and appellee appea]ed to the county court. On the third trial in that court (juries having failed to agree on the first and second) a verdict was returned for appellee, fixing his damages at $100. Hotions for new trial and to limit the number of witnesses whose fees should he taxed against appellant, being overruled, judgment was entered on the verdict, and appeal prayed and allowed to this court. Humerous errors are assigned on the record, but it is only necessary to notice a few of them. The motion to limit the number of witnesses whose fees should be taxed against appellant, is authorized by Sec. 15, C. 33, R. S., and is addressed to the discretion of the trial court. While the facts appearing in this record would have justified an order sustaining the motion, we can not say that in overruling it there was such an abuse of discretionary power as to warrant a reversal of the judgment on that ground. Appellant asked twenty-four instructions, thirteen of which were given, and it now assigns as error that seven were refused. The law governing the rights of the parties being plain, and susceptible of statement in a few brief instructions, there was neither necessity nor excuse for presenting even the number given, and the court below was fully justified in refusing those not given. They announce no rules of law applicable to the case, not contained in those given. Before noticing the instructions given at the instance of appellee, it is proper to review briefly the evidence as applied to his theory of the case. In doing so it may be conceded that if the animal got upon the track of api pell ant, and was there injured by its engine or cars, it did so either by reason'of a failure of appellant to keep its fences in repair or through the negligence of its servants in not keeping a gate at a farm crossing closed. The substantial question of fact being whether or not the injury complained of was, within the meaning of the statute, caused by the locomotive of appe1lant. There is an entire absence of proof, either direct or circumstantial, that the engine or cars of appellant actually came in contact with the animal. No one pretends to have seen her struck. No marks or bruises were found upon' her indicating that she had been knocked or thrown from the track. Appellee himself testified that he examined her carefully and “ found no bruises on her hind, part's, or scratched places, or where the hair was rubbed off.”

Other witnesses testify to the same effect. All the witnesses who speak of injuries, locate them on the head and breast, and appellee, with others, describes a place in the road near a crossing which they say indicated that she had been thrown or fallen from the grade. In the light of all the evi<lence it is clear that the most that appellee can maintain is, that being on the track, through the negligence of appellant to properly inclose its track, the animal was chased by its train and, through fright, jumped or foil from the grade and was injured. The law, however, in such a case, affords him no remedy unless it is shown that there was negligence in the management or running of the train, of -which there is no pretense in this case. Wharton on Negligence, 2d edition, Sec. 898 and authorities cited, note 4. Redfield on Railways, Vol. 1, 493. If, however, the question of liability under this statute, when the evidence fails to show that the animal is struck by the engine or cars, be treated as an open one in this State, and appellant be held liable on the ground that the locomotive and cars caused her death by driving, forcing or frightening-her off the grade in such a manner as to so injure her that site-died, still it may be seriously questioned whether the evidence would sustain the verdict. As before stated, the evidence on behalf of appellee is all circumstantial and by no-means conclusive; that of the engineer and fireman in charge-of the locomotive which must have done the injury, if done at all, as well as that of several witnesses who were in plain view of the train and track at the place where appellee insists the mare fell, swear positively that she was not on the track in front of the train; the engineer being positive that he saw a horse answering her description on the right of way, not near the track, as he passed. In fact it is only a matter of opinion as to whether the death was occasioned by an injury or from disease, witnesses of experience in the treatment of horses swearing that, in their opinion, she died from colie, while others attribute her death to an injury.

It is unnecessary to particularly discuss or weigh all the evidence produced on the trial. An impartial consideration of it must lead auy fair mind to the conclusion that under the most favorable construction of the law, the judgment below can only be sustained upon the theory that there is evidence tending to support the verdict, and in the conflict the court should not interfere. In such a view of the case it is well settled that the instructions should be accurate and fairly state the law as to both parties. The fourth of appellee’s instructions is as follows: The court further instructs the jury that if you believe from the evidence, that any witness has testified under fear of losing his employment, or desire to avoid censure, or a fear of offending, or a desire to please his employer, then you may consider such fact in determining the weight of his evidence; and if you believe that such circumstances have induced such witness or witnesses to color their evidence in favor of the defendant, or to suppress any facts favorable to plaintiff’s side of the case, or if you believe that such feelings or motives so operated on the minds of such witness or witnesses as to bias the judgment of such witness or witnesses as to the facts about which they testify as thus to suppress the whole, or any part of it, you may take these circumstances into consideration and give such witness or witnesses’ evidence such weight only as you may think it entitled to. (Given.)

The effect and manifest intention of this instruction was to weaken or destroy the force of the testimony of appellant’s engineers and firemen, the most direct and positive evidence introduced on the trial. It could apply to no other witness, because none other appears from the proof to have been under employment. There is not the slightest intimation in the evidence that any witness testified under fear of losing his employment, a desire to avoid censure, a fear of offending, or a desire to please his employer, and therefore, upon the well settled rule that instructions must be based upon evidence, there was manifest error in giving this one. It is no more nor less than a suggestion to the jury that they may discredit or disregard the evidence of men occupying- the most perilous and responsible positions, merely because they were, at the time of testifying, in the employ of appellant. This was unjust to the witnesses and unfair to appellant. The evidence of employes should have been tested and weighed as that of other witnesses, and in the absence of all proof of bias or prejudice TP.snlt.iug from their employment, this instruction should have been refused. The first instruction is awkwardly constructed. The third, subject to criticism in announcing that the omissions therein stated would constitute gross negligence. The objection urged by appellant that it takes the question of negligence from the jury, is not tenable. The negligence here complained of is a failure to perform a statutory duty, and the only question of fact for the jury is whether there was such failure. If so, negligence is judicially imputed, and this must be dec’ared by the court.” Wharton on Negligence, Sec. 420. “ The court has no authority to determine the fact of negligence, unless it be in the non-observance of a positive- requirement of law.” Galena & Chicago Union R. R. Co. v. Dill, 22 Ill. R. 271; Toledo, Peoria, etc., Railway Co. v. Foster, 43 Ill. R. 415. This and other instructions given on behalf of appellee are subject to the further criticism that it directs the jury if certain facts are proved to find for the plaintiff, “ provided all the other material facts are proved,” without in any instruction informing them what the material facts are. On cross-examination appellee’s attention was called to a letter addressed to certain officials of appellant, referring to the killing of the mare in question, containing threats of destroying property, etc., and he was asked if he did not write it. The question was objected to and the objection sustained. In this there was error. Greenleaf on Evidence, Vol. 1, Sec. 450. The witness did not claim his privilege on the ground that his answer would criminate him. The objection was based on incotnpetency. After so many trials, it is to be regretted that the litigation between these parties can not now be ended, but in view of the several substantial errors appearing in the record the judgment can not be affirmed, and the opinion of a majority of this court being that the cause should he remanded for further disposition in the county court, that order will be entered.

Beversed and remanded.


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    City of East St. Louis, use, etc., v. William P. Launtz et al.
    1. Suit upon official bond.-—Suit upon the official hond of a city treasurer, which contained the condition that he should pay out money, in his hands as such officer, as directed by the city council, was brought in the name of the city for the use of the school trustees, for a failure of such treasurer to pay over to the school treasurer one half of the funds collected from dram shop licenses. The treasurer, in his plea, set up that the city had never issued any warrant authorizing such payment and that the city council, by ordinance, expressly directed him not to pay out any of said funds to schools. Held, that a demurrer to such plea was properly overruled and judgment rendered in favor of the treasurer.
    2. Fund fbom dbam shop licenses—City as tbustee.—If the school trustees are lawfully entitled to one half of the fund under section 12, article 7 of the city charter, the city, and not its treasurer, holds the same as trustee, and the school trustees must proceed against the city and not against its treasurer.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Snyder, Judge, presiding.
    Opinion filed Januuary 8, 1887.
    Mr. L. H. Hite, for appellant.
    Mr. R. A. Halbebt, for appellees.
   Green, J.

This was a suit upon the official bond of William P. Launtz, city treasurer of the city of East St. Louis, brought in the name of said city for the use of the trustees of schools of Town 2, N., R. 10, W., St. Clair county, against Launtz, and the sureties upon his bond. Pleas in bar were interposed, and a general demurrer thereto was overruled; the plaintiff elected to stand by its demurrer, and the court thereupon rendered judgment for defendant on said pleas, and plaintiff took this appeal. The bond in question was made to the city of East St. Louis by said William P. Launtz, city treasurer of said city, as principal, and the other appellees as sureties, in the penal sum of $100,000, with the following condition: “Whereas, the above bounden William P. Launtz has been duly appointed city treasurer oí the city of East St. Louis by the city council, at its meeting of April 21, 1885, now, if the said William P. Launtz shall well and truly perform the duties thereof, and promptly account for, and turn over to his successor, or other person designated to receive the same, all moneys, boobs, papers and valuable things coming to his hands as such officer, as directed by the city council, then this obligation to be void,” etc. The breach of this condition assigned in the declaration as the ground for recovery is, “ that Launtz, as such city treasurer, received into the city treasury, between April 21, 1885, and January, 1886, $100,-000, from dram shop licenses collected. Whereupon it became and was his duty to pay over one half of said sum in installments, at least quarterly, to the treasurer of schools of said Town 2, if., P. 10, W., according to law, and notwithstanding said treasurer called upon said Launtz at least every quarter and demanded one half said dram shop fund as aforesaid, yet the said William P. Launtz, not regarding the duties of his said office, did not, nor would, pay said money nor any part thereof to said treasurer, but has hitherto neglected and refused so to do.” The defense relied on and set up by apt words in the pleas, was in substance, that by the ordinances of the city it is the duty of said city treasurer, among other things, to receive and keep safely all moneys of the city, and pay out the same on the order of the city council, signed by the mayor or other officer thereunto authorized by ordinance, and countersigned by the city clerk, and not otherwise; that said treasurer of schools had no warrant so signed at the times he made the demands, and the city had never issued any warrant or order authorizing its treasurer to make such payment, but that before and at the time of making such demands, the city council, by ordinance, expressly directed the city treasurer not to pay out any of said funds to schools.

The material averments of the pleas, admitted by the demurrer to be true, furnish a complete defense to the suit brought upon this bond; by these averments it appears the condition of the bond had not been broken; that condition required the city treasurer to pay out the money in his hands as such officer, “as directed by the.city council” and the only mode of giving such direction was by ordinance, which prescribes that said officer shall pay out all moneys of the city, on the order of the city council, when signed by the mayor or other officer, thereunto authorized by ordinance, and countersigned by the city clerk, and not otherwise. Said school treasurer without such warrant or order, or authority from the city to receive one half of the sum paid into the city treasury for dram shop licenses, demanded the same from said Launtz, as city treasurer, who could not comply with such demand without disobeying the direction of the city council prescribed by ordinance, and which it was his duty to obey; the pleas aver this, and by the demurrer plaintiff is concluded from denying the truth of this averment; hence, the refusal of Launtz to pay out funds from the city treasury upon such demand, was the performance of his official duty and a fulfillment of the condition of his bond, alleged in the declaration to have been broken. It is insisted, however, on behalf of appellant, by virtue of Sec. 12, Art. 7, of the city charter, which provides, “One half of all money received into the city treasury from diam shop licenses collected, shall be paid over, at least quarterly, to the treasurer of school township number two north, range ten, west, in St.. Clair county, Illinois, by him to be apportioned to the several schools taught in said city, under the general school laws of this State, in the same mode and manner as interest on township school fund is now required to be apportioned and credited to the respective school districts; shall be liable to the order of the respective boards of school directors, as other funds for the support of the schools in said city, respectively,” Launtz, as city treasurer, became a trustee of one half the money collected for dram shop licenses, and therefore it was one of his duties, as such officer, to pay to said school treasurer on demand, one half of the money so collected, notwithstanding the direction mentioned, and the further direction, prescribed by ordinance, not to pay the same to schools (as averred in the pleas and admitted by the demurrer), and notwithstanding no warrant or order, as required by the ordinance, had been issued for the payment thereof to said school treasurer. The section rehed on does not, in term.', require the city treasurer to pay to said school trustees half of the money collected for drain shop licenses, or prescribe any duty to be performed by such officer, but Sec. 2, Art. 3, of the city charter, grants to the city council the power to appoint a city treasurer, and Sec. 3, Ibid., empowers the council to prescribe his duties. These powers are lodged with the city council, and nowhere else; the pleas aver and the demurrer admits, the city council of East St. Louis has, in the exercise of this power, prescribed by ordinance, the duty of the city treasurer to pay out money upon a warrant or order and not otherwise. The money paid for dram shop licenses is paid to the city, is properly received and placed in its treasury as city funds, and if said school trustees are lawfully entitled to one half of said money under the provisions of said See. 12, the city and not its treasurer holds the same as trustee. The duties of said treasurer, as fixed and defined by ordinance, are in no way affected, changed or enlarged by said Sec. 12, and include no duty or allegiance to said trustees, and the words of the condition before quoted do not bear the construction given them by compel for appellant. Launtz performed his official duty and obeyed the direction given him by the city council in refusing to pay the money demanded by said school treasurer, and it would he unjust to permit the city to construe this act of obedience as a breach of the bond requiring it, and recover in this action a judgment against Launtz and his sureties. As to the dispute between the city and school trustees touching the right of the latter to the half of said dram shop fund, and the effect of “the Harper Act,3-' upon such right, we can only say, that question is not involved in this suit; but if the city unlawfully retains in its treasury this money, as against the lawful c’aim of said trustees thereto, the latter can, by a proper proceeding, establish such claim, and compel the city council to issue a warrant or order to its treasurer to pay over said money. We are of opinion the court below properly overruled the demurrer to the pleas, and committed no error in rendering the judgment complained of, and it is affirmed.

Judgment affirmed.