text:
    Ada A. Cope, Appellant, v. John L. Cope, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Jury, § 9

       — when trial by is not matter of right. A jury trial in a separate maintenance suit is not a matter of right.
    2. Equity, § 379* — when findings of jury are advisory only. Where issues are submitted to a jury in a suit for separate maintenance, their verdict is advisory only, and it is still within the court’s discretion either to follow the jury’s findings or to make independent findings.
    3. Appeal and error, § 1395* — when findings of chancellor not set aside. On appeal, the findings of a chancellor who has seen the witnesses and heard the testimony should he accorded the same weight as the findings of a jury and not set aside unless contrary to the manifest weight of the evidence.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Bill for separate maintenance by Ada A. Cope, complainant, against John L. Cope, defendant. Issues were formed to be tried by a jury and there were findings by the jury which the court refused to set aside, but it entered a decree making independent findings partly contrary to those of the jury, and ordered the bill dismissed for want of equity, from which complainant appeals.
    De Mange, Gillespie & De Mange, for appellant.
    Sterling, Livingston & Whitmore, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and SPPtiion number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

4. Husband and wife, § 217 — when wife is not without fault in causing disruption of marital relation. Where a wife's misconduct is such as to materially contribute to the disruption of the marital relation, she is not without fault within the meaning of the statute providing for separate maintenance (J, & A. f 6159).

5. Husband and wife, § 217* — when wife is not without fault in causing separation. Where the misconduct of both parties has contributed to cause the separation, the wife is not without fault in the meaning of the separate maintenance statute (J. & A. f 6159)..

6. Equity, § 374* — when refusal of requests to submit certain issues to jury is not error. On a bill for separate maintenance where the issues are submitted to a jury, the refusal of a request to submit certain issues is not error.

: 7. Equity — when propriety of rulings on instructions is immaterial. On a bill for separate maintenance, where the issues are submitted to a jury, the question whether the rulings as to the giving or refusal of instructions were proper is immaterial.

8. Appeal and error, § 1522* — when inconsistency in jury’s findings is not ground for reversal. On a bill for separate maintenance, inconsistency in the jury's findings is not ground for reversal, where the court made independent findings.

9. Husband and wife, § 264* — when evidence supports findings in suit for separate maintenance. Evidence held sufficient to support the findings of the chancellor in a suit for separate maintenance.


source: Caselaw Access Project

author: Mr. Presiding Justice Graves

license: Public Domain

text:
    J. Ellsworth Marshall, Administrator, Appellant, v. Illinois Central Railroad Company, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Instructions, § 94

       — when instruction on right to reject false testimony of witnesses is proper. In an action to recover for a death alleged to have been caused by negligence, where the evidence as to the negligence alleged is conflicting, it is proper to instruct the jury that if they “believe from the evidence that any witness or witnesses in this case have wilfully and knowingly sworn falsely to any material fact in the case, they have the right to reject the entire testimony of such witness or witnesses in matters where their testimony is not corroborated hy other witness or witnesses whom they believe from the evidence to he credible or from facts or circumstances appearing in evidence and proven upon the trial."

      Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harms, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Statement of the Case.
    Action by J. Ellsworth Marshall, administrator of the estate of Omah J. Marshall, deceased, plaintiff, against the Illinois Central Bailroad Company, defendant, to recover for his intestate’s death through collision with a train in the limits of a city. The evidence as to the speed of defendant’s train, the giving of signals and the care of deceased was conflicting. From a verdict and judgment for defendant, plaintiff appeals.
    Phillips & Swanson, for appellant.
    Cloud & Thompson, for appellee; John G-. Drennan, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of thfe court.

2. Instructions, § 111 — when instruction ignoring counts of declaration is not erroneous. In an action to recover for death by wrongful act, the court may properly instruct the jury that plaintiff may recover if fie proves by a preponderance of evidence his right to recover “as alleged in the first, second or third count of the declaration, and it is not necessary for him to prove his right to recover under all of said counts,” though a form of the instruction which told the jury what facts plaintiff was required to prove in order to recover would have been preferable.

3. Death, § 74* — when requested instruction on due care of deceased should not he refused. In an action to recover for a wrongful death caused by being struck by a train at a crossing, an instruction as to the due care of the deceased which announces the rule to be that he was required to exercise ordinary care for his own safety while approaching the crossing, immediately prior to the injury, and while he was on said crossing, should not he refused, though inaptly worded, as it sufficiently states that it was the duty of deceased to exercise ordinary care for his own safety at the time he was approaching the crossing, and while he was on the crossing, at the time of and immediately before the injury.

4. Death, § 73*- — when instruction referring to declaration is properly refused. In an action to recover for wrongful death, an instruction on the measure of damages which makes reference to the amount claimed in the declaration is properly refused.

5. Death, § 74* — when instruction on contributory negligence of deceased is erroneous. In an action to recover for a wrongful death caused by collision of an automobile with a train at a crossing, it is error to instruct that if the jury believe from all the facts and circumstances, if any, shown by the evidence, that if the deceased “by the exercise of such diligence as is usually exercised by ordinarily prudent persons to protect themselves from injury, could reasonably have done some act which would have apprised him of the approach of the train in time to avoid the collision, it was his duty to do such act, and if he did not so do, he was guilty of contributory negligence and cannot recover.”


author: Mb. Presiding Justice Graves

text:
    J. R. Beggs, Administrator, Appellee, v. Chicago Bonding & Surety Company, Appellant.
    1. Debt, Action of, § 7

       — what is effect of plea of non est factum at common law. At common law the plea of non est factum, to a declaration in debt on a bond merely put in issue the execution of the bond.
    2. Debt, Action of, § 7* — what is effect of unverified plea of non est factum under statute. Under the Illinois statute (J. & A. If 8589), an unverified plea of non est factum to a declaration in debt on a specialty puts nothing in issue.
    3. Pleading — what is effect of notice of special matters of defense to declaration. Notices of special matters of defense to a declaration in debt on a bond cannot be demurred to, admitted or denied, and do not raise issues of law or fact, but merely admit the introduction of proof, if material, of special defenses without pleading them.
    4. Bonds, § 37*- — when judgment may be had by introduction of bond alone as evidence. On a declaration of debt on a bond to which an unverified plea of non est factum and notices of special matters of defense are filed, plaintiff may have judgment without the introduction of other proof than the bond sued on, unless other proof is made necessary by the introduction of proof by defendant under the notices of special matters of defense.
    5. Executobs and administbatobs — what unnecessary to recovery on bond of distributee by person supposed to have been dead. To entitle one whose estate has been distributed on the presumption of his death and intestacy to recover of a surety on the bond given by a distributee pursuant to section 78 of the Administration Act (J. & A. If 127), it is not necessary that the order directing the distribution of the estate be first set aside and vacated.
    6. Executobs and administbatobs- — what is not prerequisite to suit by person supposed to be dead upon bond of distributee of estate for refund of share. To entitle one whose estate has been distributed under a presumption of death and intestacy to recover of the surety on the bond given by a distributee pursuant to section 78 of the Administration Act (J. & A. If 127), it is not necessary that he first proceed against the administrator by demand or suit before calling on the distributee for the amount he had received.
    7. Tbial — when profert of party is unnecessary. Profert of a party is not required to establish his existence and identity.
    8. Executobs and administbatobs — when proof of existence and

      identity of party whose estate has been distributed is sufficient. In an action by one whose estate had been distributed on a presumption of his death and intestacy to recover of the surety on the bond given by a distributee, proof of the existence and identity of the plaintiff held sufficient.
    9. Bonds, § 37

       — what is sufficient proof of failure to pay debt. Where the declaration in debt on a bond alleges and the pleadings admit a failure to pay, plaintiff is not put to further proof thereof.
    10. Payment, § 24* — as an affirmative defense. Payment is an affirmative defense.
    11. Appeal and error, § 1488* — when admission of improper evidence is harmless error. The admission of improper evidence in a case tried by the court without a jury is harmless error.
    Appeal from the Circuit Court of Douglas county; the Hon. Franklin H. Booss, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    S abate, Stafford & Sabath and Craig & Kinzel, for appellant; Charles B. Stafford, of counsel.
    Harry P. Gofer and Albert C. and Ben P. Anderson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mb. Presiding Justice Graves

delivered the opinion of the court.

J. B. Beggs was appointed administrator of the espíate of James Hood, deceased, by the County Court of Douglas county. When the time arrived for the distribution of the estate, it was claimed that one John Hood, one of the sons of James Hood, deceased, and who if living would be entitled to a distributive share of the estate, had not been heard from by his family for about fourteen years. This being made to appear to the County Court, an order was entered declaring that he was presumably dead and that the funds coming to him should be distributed to his children but that before such money should be so distributed each of such children should give the bond as provided for by section 78 of the Administration Act (J. & A. ft 127). That section is as follows:

“The costs, expenses, award and just claims against the estate of a person presumed in law to be dead shall be adjusted, allowed and paid in due course as in other estates, but before distribution to heirs of such person, under the presumption of death and intestacy, each distributee, or some one for and on behalf of such distributee, shall enter into bond payable to the People of the State of Illinois, in a penalty double the value of the distributive share of such distributee, with security thereon to the acceptance and approval of the court, conditioned to refund and pay, on demand, to such presumed decedent, if alive, or to any other person lawfully entitled, all money and other property or assets received by such distributee as heir as aforesaid, and to save harmless the administrator of the estate against all claims or demands of the presumed decedent or of persons claiming through or under him. The bond hereinabove mentioned shall be filed with the clerk and, if approved by the court, shall be recorded and preserved by the clerk as other bonds.”

The share to be distributed to Bert Hood, a son of John Hood, who was so supposed to be dead, amounted to $955.93, and, pursuant to the terms of the statute above quoted, he, on December 3, 1914, executed his bond to J. B. Beggs and the People of the State of Illinois in the penal sum of $1,911.86 for the uses and purposes named in the statute, and the $955.93 was turned over to him pursuant to the order of court already referred to. Appellant signed the bond as surety. In March, 1916, John Hood, the supposedly dead man, appeared and claimed his share of the estate of his father that had been distributed to his children. At the time his son Bert, who executed the above-mentioned bond, lived in Idaho, and John, being unable to get any money from him, notified him to produce it, which he did not do. John Hood then notified appellant of the facts, and, getting no results, he instituted this suit in July, 1916. Appellant filed an unverified plea of non est factum and gave notice of several special defenses:

First: It denies that the beneficial plaintiff has suffered damage or loss.

Second: Avers that bond sued on was issued under an order of court directing payment of money to Bert Hood, which order is .still in force and that no action can be based on the bond until that order is vacated.

Third: That no demand had been made on plaintiff by John Hood for money paid to Bert Hood.

. Fourth: That no demand for the money has been made on Bert Hood.

Fifth: That John Hood, the beneficial plaintiff in this suit, is not the real John Hood.

Sixth: That Bert Hood has a set-off against John Hood for support of his, John Hood’s, children.

Seventh: That Bert Hood has been garnisheed on claims against John Hood.

The cause was tried by the court, a jury being waived. The finding was for the plaintiff, and judgment was entered accordingly for the amount of the bond to be satisfied upon the payment of $976.43.

The bond sued on was a voluntary undertaking. John Hood was missing and was supposed to be dead. The statute required of the administrator that before he should distribute the money belonging to a person supposed to be dead, to his heirs, he should take a bond from each of such distributees conditioned to refund and pay, on demand, ffo such presumed decedent, if alive,” all money received by such distributee as the heir of such supposedly deceased person, and to save harmless the administrator, etc. This bond was given in compliance with the statute and was conditioned as there required. John Hood, the supposedly deceased person whose share in his father’s estate was distributed to his children, was in fact alive and has demanded from Bert Hood that he turn over to him the part of the fund he received. That is part of what appellant by becoming surety for Bert Hood guaranteed that he should do. Bert failed on- demand to perform that obligation. That condition of the bond was thereby broken and appellant became in law liable to make good that breach. To compel appellant- to perform that obligation this suit is brought.

The declaration sufficiently sets out appellee’s right to recover. The plea of non est factum to a declaration in debt on a specialty, without being verified, puts nothing in issue. At the common law that plea only put in issue the execution of the bond, and under our statute (J. & A. if 8589) it does not do that unless it is verified. People v. Ackermann, 146 Ill. App. 301; Fleet v. Hertz, 98 Ill. App. 564; Rudesill v. Jefferson County, 85 Ill. 448. The Appellate Court said of such a plea in Leman v. United States Fidelity & Guaranty Co. of Maryland, 137 Ill. App. 265: “It (referring to the plea of non est factum) admits all the material averments of the declaration and the plaintiff needed to make no proof of the breaches- contained in its declaration, as the plea admitted them.” Neither do notices of special matters of defense raise issues of law or fact. These notices cannot be demurred to, admitted or denied. All such notices amount to is to permit the introduction of proof; if material, of special defenses without pleading the same. Bailey v. Valley Nat. Bank, 127 Ill. 332-339. Appellee might well have had judgment without' the introduction of any proof except the bond sued on, unless appellant had first introduced proof under the notices of special matter that made it necessary, which it failed to do. Not only was appellee entitled to a judgment on the pleadings and the introduction in evidence of the bond, but all the material 'facts alleged in the declaration and admitted by the pleas were amply established by the proof.

Appellant contends that the order of the County Court directing the distribution of the fund must be set aside and vacated before there can be liability on the bond. No authority or valid reason has been suggested for such a contention, and it is manifestly untenable. The bond sued on was not given pursuant to an order of court but in compliance with the terms of the statute, and the administrator would not have been bound to, or justified in, obeying an order of the court that required him to distribute the fund without taking bond. The court did order the distribution, and it was when the administrator was about to make the distribution ordered that the statute stepped in and required of him that he take a bond. Without an order of court he could not, without disregarding the statute, have distributed the fund at all. The record shows that the bond had been given and the order for distribution had been complied with before this suit was begun. If it had not been complied with the breach of the bond made the basis of this suit would have been impossible. Waiving the question as to whether a court could set aside an order of distribution that had been complied with, it is inconceivable how so doing could affect the liability of appellant who became voluntarily responsible for the turning over of the money received by Bert Hood to its real owner when he should be found to be alive and should demand it.

Appellant also objects that no demand was ever made by John Hood on the administrator for this money. The proof showed that the administrator had turned it over to Bert Hood under the order of court after a bond had been given pursuant to the statute. The condition of the bond, the breach of which is here relied upon, was that Bert Hood should return the money he had secured from the administrator. John Hood was under no obligation to proceed against the administrator either by demand or suit before calling on Bert Hood for his money.

Appellant objects that John Hood was not brought into court in proof of his own existence and identity. We know of no rule requiring proferí of a party to be made in order to establish the fact that he is alive, and there is no suggestion of how the court could know by inspection and without proof whether the claimant was the real John Hood or a pretender. The course pursued is the usual one adopted to establish the fact referred to, and the proof produced was ample. There was no error committed by the court in this respect.

Appellant next contends that there was no sufficient proof that Bert has not turned the money in question over to John Hood. It is enough to say of this point that the failure to pay is alleged in the declaration and admitted by the pleadings. Hepler v. People, 226 Ill. 278. Besides that, payment is an affirmative defense. If appellant had pleaded payment and offered proof to support the plea, then proof on the part of appellee might have been necessary, but no such plea was filed or proof offered.

Appellant mentions the fact that he claims improper evidence was admitted. The case was tried by the court without a jury and, if any evidence was admitted that was not strictly proper, the court would not consider it and no harm would result.

Several propositions were submitted as propositions of law and some of them come properly under that title. They were all marked refused by the court. The correctness of the court’s rulings in that respect is shown by what has already been said.

No other claimed errors have been argued by the appellant.

No errors appear in this record and the judgment is affirmed.

Affirmed.


text:
    Clarence W. Hughes, Master in Chancery, for use of John Hood, Appellee, v. Chicago Bonding & Surety Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action in debt on a bond by Clarence W. Hughes, master in chancery of Coles county Circuit Court, who sues for the use of John Hood, plaintiff, against the Chicago Bonding & Surety Company, defendant. The bond was given by Edward Hood to plaintiff Hughes in accordance with the terms of the order distributing the estate of John Hood on the presumption of the latter’s death and intestacy and defendant was surety on such bond. One claiming to be John Hood subsequently appeared and demanded of Edward Hood the amount given him under the order of distribution, to secure the refunding of which the bond in suit had been given, and notice of these facts were given defendant. Payment not having been received, action was brought on the bond. Defendant’s demurrer to the declaration was overruled and it filed an unverified plea of non est factum and gave notice of special matters of defense. The case was tried by the court without a -jury, the issues were for plaintiff and judgment was for plaintiff for the amount of the bond, to be satisfied upon the payment of $1,238.79 and costs, from which judgment defendant appeals. The proceeding is similar to that of Beggs v. Chicago Bonding & Surety Co., ante, p. 621.

      Abstract of the Decision.
    1. Executors and administrators — what not essential to recovery by person whose estate was distributed on supposition of death. The vacating and setting aside of the order for the distribution of an estate on a presumption of death and intestacy is not essential to a recovery against the surety on a bond given by a distributee for the refund of his share in case the supposed deceased be alive. • Following Beggs v. Chicago Bonding & Surety Co., ante, p. 621.
    2. Appeal and error, § 1712

       — when error of trial court in overruling motion will not be reversed. A judgment will not be reversed because of the overruling of a motion by the trial court where no reason is given in appellant’s argument why the motion should have been allowed.
    3. Appeal and error, § 1488* — when error in overruling motion to suppress deposition is harmless. Where a case is tried by the court without a jury, error in overruling a motion to suppress a deposition is harmless.
    4. Bonds, § 37* — what is sufficient proof of nonpayment of debt. Where the declaration in an action in debt on a bond avers that the bond is not paid and the averment is admitted by the plea, further proof of nonpayment is not necessary.
    5. Payment, § 24* — as an affirmative defense. Payment is an affirmative defense.
    Sabath, Stafford & Sabath and Craig & Kinzel, for appellant.
    Harry P. Gofer and Albert 0. and Ben F. Anderson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Clarence W. Hughes, Master in Chancery, for use of John Hood, Appellee, v. New England Casualty Company, now known as New England Equitable Insurance Company of Boston, Massachusetts, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Coles county; the Hon. Waltbb Breweb, Judge, presiding. .Heard in this court at the-April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Clarence W. Hughes, master in chancery of Coles county Circuit Court, who sues for use of John Hood, plaintiff, against the New England Casualty Company, now known as New England Equitable Insurance Company of Boston, Massachusetts, defendant. The facts, herein, except as to the principal in the bond and amount thereof, are identical with those in Hughes v. Chicago Bonding & Surety Co., ante, p. 628, which case disposes of the present one.
    Wilkerson, Cassels & Potter and Craig & Kinzel, for appellant.
    Harry P. Gofer and Albert C. and Ben F. Anderson, for appellee. .. .
   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Ida Lundsey, Appellee, v. Butler Fouts, Administrator, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Damages, § 153

       — When verdict for personal services os nurse is excessive. Verdict of $432 for services rendered as practical nurse for a part of the time for a period of 216 days, held excessive.
    Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by Ida Lundsey, plaintiff, against Butler Fouts, administrator of the estate of Mary S. Carton, deceased, defendant, on a claim for services rendered defendant’s intestate. From a judgment for plaintiff for $432, defendant appeals.
    M. T. Robison, for appellant; B. L. Catron, of counsel.
    Harvey H. Atherton and E. L. Weber, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Paul F. Beech Company, Appellant, v. Leslie Forbes, Sheriff, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    Replevin, § 124

       — when evidence shows recovery by seller of goods sold under conditional contract before levy of execution. In an action of replevin to recover possession of goods sold under conditional contract in the hands of a sheriff, evidence as to whether plaintiff had regained possession of the goods before the levy of an execution by defendant, held sufficient to support a finding in favor of defendant.
    Appeal from the Circuit Court of De Witt county; the Hon. Geobge A. Sentel, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Statement of the Case.
    Replevin by Paul F. Beech Company, plaintiff, against Leslie Forbes, sheriff, defendant, to recover possession of a piano held under levy of an execution. From a judgment for defendant, plaintiff appeals.
    E. B. Mitchell and Sterling, Livingston & Whit-more, for appellant.
    L. R. Herrick and W. F. Cray, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    W. A. Kreitzer, Appellee, v. Lake Erie & Western Railroad Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1236

       — when insufficiency of declaration cannot be complained of on appeal. Where it does not appear from the record that a declaration was challenged in the trial court by demurrer or by motion in arrest of judgment or in any other way, but it was pleaded to and evidence offered to rebut its allegations, its insufficiency cannot be complained of on appeal.
    2. Railroads, § 932* — when evidence supports verdict for plaintiff in action for damages for loss of property by fire. In an action to recover for the loss of corn alleged to have been destroyed by a fire set by a spark from defendant’s locomotive, evidence held sufficient to support a verdict for plaintiff.
    Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Statement of the Case.
    Action by W. A. Kreitzer, plaintiff, against the Lake Erie & Western Railroad Company, defendant, to recover for com alleged to have been destroyed by a fire caused by a spark from a locomotive owned and operated by defendant. Prom a judgment for plaintiff for $717.40, defendant appeals.
    Cloud & Thompson, for appellant.
    Schneider & Schneider, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    C. W. McComb, Administrator, et al., Appellants, v. Robert H. Morford and Charles R. Dunbar, Appellees.
    1. "WIlls—how will draum by layman construed. In construing a will drawn by a layman, the courts are not so strongly bound by the technical meaning of legal terms employed therein as they, are in the case of a will drawn by one familiar with such terms and will enlarge, restrict or ignore the technical meaning when by so doing the manifest intent of the testator can be given effect.
    2. Wills, § 266

      —when word “heirs” construed as meaning “children.” In construing a will drawn by a layman, where the word “heirs” has been used interchangeably with “children” or in such connection as to make it apparent that “children” was intended, it will be so construed.
    3. Wills, § 266*—when word “heirs” construed as meaning “children.” Where, in a will drawn by a layman, it is provided that the estate “shall be divided into five equal shares, each of my before enumerated children to receive one share and the heirs of my children now deceased shall receive collectively the share their deceased parents would have received,” the word “heirs” will be construed as meaning “children.”

      4. Wills, § 272

      —what constitutes a gift to a class. Where a will directs that the estate be divided share and share alike between “my children as follows: Joseph P. Baker, Christie Ann Critchfield, Leatha Scott, the heirs of Almira Dunbar” and the heirs of another child, the gift to such “heirs” is a gift to a class.
    5. Wills, § Hi*—what is general rule as to vesting of bequests made to a class. It is the general rule that, unless a different intention is manifested, where a bequest is to a class, all the members of that class who are alive when the testator dies are included and the bequest then vests in them, the enjoyment only being postponed.
    6. Wills, § 391*—when will construed as postponing vesting of bequests until after death of xoidow. Where a will, after first directing that the real estate be sold and the proceeds divided, later provides that it shall not be sold until after the death of his wife and also that if any of his living children shall die' “before the time of settlement” of the estate, which it elsewhere provides shall not be until after the death of the wife, the children of such deceased parent shall take collectively the share the deceased child would have taken if living, it is to be construed as postponing the vesting of all the bequests until after the death of the testator’s widow.
    7. Wills, § 384*—when devisees of remainder have vested interest after death of toidow. The devisees of the remainder after the death of the testator’s widow are not to be construed as having a vested interest until after her death, where there are no express words giving or devising anything to any one in that clause of the will, but the disposition of the property there made is by way of direction to the executor as to disposing' of the proceeds of the sale of realty to be made after the widow’s death.
    8. Wills, § 262*—when presumed that widow takes as heir under statute and not under xoill. Where a will, after providing for certain bequests to the testator’s wife, provides that "in addition I bequeath to her, full statutory dower in all my property,” the widow is presumed to take as heir under the statute and not under the will.
    9. Wills, § 273*—when xoill construed as'allowing only heirs alive- at time of distribution to take shares of estate. Where a testator provides that after the death of his wife his property is to be divided share and share alike between his children “as follows: Joseph P. Baker, Christie Ann Critchfield, Leatha Scott, the heirs of Almira Dunbar and the heirs of Kittle Samuels,” the “heirs” of such children who are entitled to take are those who are alive at the time of the death of the testator’s widow when the estate is first ripe for distribution.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Adlai H. Rust, for appellants.
    Sterling, Livingston & Whitmore, for appellees.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

The will of Bobert H. Baker, now deceased, is as follows :

“In The Name of God, Amen.
“I, Bobert H. Baker, of the town of Heyworth, in the County of McLean and State of Hlinois, being of sound mind and memory hereby make, publish and declare this to be my last will and testament hereby revoking all former walls made by me.
“1st. I direct that all my debts of whatsoever nature be fully paid and discharged, including funeral expenses.
“2nd. To my wife, Mary Baker, I bequeath absolutely and in fee simple the following real estate: Lots 5, 8 and 9, in Block 5 in Frisby’s addition to the town of Heyworth, being the place we now reside. Also all the household goods therein. In addition I bequeath to her, full statutory dower in all my property, real and personal or mixed.
“3rd. After the death of my wife, Mary Baker, I direct that all my property, real and personal shall be converted into cash as soon as the same can be done without loss to my estate and be divided share and share alike between my children as follows: Joseph P. Baker, Christie Ann Critchfield, Leatha Scott, the heirs of Almira Dunbar and the heirs of Kittle Samuels. That is to say that my entire estate shall be divided into five equal shares. Each of my before enumerated children to receive one share and the heirs of my children now deceased shall receive collectively the share their deceased parents would have received or if any of my children now living shall have died before the time of settlement then their heirs shall receive collectively the share designated for their parents. For the purpose of carrying out the provisions of this my last will and testament I hereby nominate and appoint my son Joseph P. Baker to be executor of my will and hereby empower him and especially invest him the full authority to sell all of my real estate at public or private sale as he may deem best and to make deeds and conveyances for the same with full power to sign all deed, etc., necessary for the carrying out of these provisions. In case of his refusal to qualify or of his death then I invest my administrator de bonis non with the will annexed with the same authority.
“I direct that all my real estate situated in the County of McLean and State of Illinois shall be held by my estate during the life of my wife.
“As I own at the present time certain lands in the County of Adair in the State of Iowa which I desire to dispose of. In case I should still own said lands at the time of my decease, it is my will that said lands in ' the County of Adair in the State of Iowa be sold as soon as the same can be done without loss to my estate and the proceeds to be divided at once among my children or their heirs as before directed. My wife reserving her statutory dower. In witness whereof, I have affixed my signature and seal this 4th day of March, A. D. 1902.
Robert H. Baker (Seal)”

Attestation clause.

The controversy in this case arises over the disposition of the one-fifth part of the estate which Almira Dunbar would have received if she had been alive as provided by the third clause of the will above quoted. At the time of the death of the testator, Almira, Dunbar was dead and her only children and heirs at law then in existence were Flossie Dunbar, Charles R. Dunbar and Robert H. Morford. After the death of the testator and before the death of his wife,, and consequently before the settlement of his estate, Flossie Dunbar died, leaving her father Benjamin Gr. Dunbar, her brothers Robert H. Morford and Charles R. Dunbar, and her half sister Dolores Dunbar, as her only heirs at law.

This is an appeal from an order of distribution entered by the Circuit Court in the matter of the estate of Robert H. Baker, deceased, where the matter came by appeal from the County Court.

The County and Circuit Courts both held that Robert H. Morford and Charles R. Dunbar, who were at the time of the death of the widow of the testator the only living children of Almira Dunbar, should have the one-fifth part of the estate of Robert H. Baker, deceased, which he directed should be paid to “the heirs of Almira Dunbar,” and that Benjamin Gr. Dunbar, the father of Flossie, and Dolores Dunbar, the half sister of Flossie, had no interest in the estate. The correctness of that order is questioned by this appeal.

The will bears on its face indubitable evidence of its having been made by a layman and a novice at drawing wills, and that he did not comprehend the meaning of all the words he used. In construing wills that are so drawn, courts feel less bound by the niceties of meaning of technical words used than they do when the same words are used by persons accustomed to their use and familiar with their meaning, and often enlarge, restrict or ignore the technical meaning when by so doing the manifest intent of the testator can be given effect. So where the word “heirs” has been used interchangeably with “children,” or in such a connection as to make it apparent that by it “children” was intended, it will be so construed. Fishback v. Joesting, 183 Ill. 463; Kalies v. Ewert, 248 Ill. 612; Butler v. Huestis, 68 Ill. 594-602; Gannon v. Peterson, 193 Ill. 372-379; Dick v. Ricker, 222 Ill. 413-417; Stisser v. Stisser, 235 Ill. 207-212. In this respect greater latitude is indulged in, in construing wills than is allowed in construing deeds. Butler v. Huestis, supra.

In the clause of the will above quoted there is one expression in which it is certain the word “heirs” was used where “children” was meant, and that is the particular part of the clause in which the testator is undertaking to make clear who shall have the one-fifth share of Almira 'Dunbar. The language used is: ‘1 That is to say that my entire estate shall be divided into five equal shares, each of my before enumerated children to receive one share and the heirs of my children now deceased shall receive collectively the share their deceased parents would have received.” By the use of the word “parents” in the latter part of the clause in identifying the share they are to receive, the identity of the beneficiaries is unmistakably shown to be the “children” of such parents instead of the more general class of heirs. A similar expression was held to have that effect in Madison v. Larmon, 170 Ill. 65.

The gift to the children of Almira Dunbar was a gift to a class. They were described in the will as the “heirs,” meaning the children, of Almira Dunbar, and are not mentioned by name. As to such bequests the general rule is that unless a different intention on the part of the testator is manifest, all the members of that class who are alive when the testator dies are included, and the bequest then vests in them, the enjoyment thereof only being postponed. Clark v. Shawen, 190 Ill. 47. But in this case the purpose of the testator to postpone the vesting of all bequests until after the death of the widow is apparent. In the first place he directs that all his real estate be- sold and the proceeds be divided, which plainly is a devise of personal property. He then provides in a later clause that this real estate shall not be sold until after the death of his wife. The clear intent of the testator to postpone the conversion of the real estate into personal property until after the death of Ms wife is manifest.

Next he provides that if any of his living cMldren shall die “before the time of settlement” of the estate, wMch elsewhere he provides shall not be until after the death of his wife, the children of such deceased parent shall take collectively the share the deceased child would have taken if he qr she had lived. It cannot be doubted that the purpose and intent of the testator was, as gathered from the whole will, to so dispose of his property that such of his children as were then alive and the children, who were then alive, of such of his sons and daughters as were then dead, should have his property, or in other words, his evident intent was to so dispose of his property that it should remain in the hands of his blood descendants as long as he could control it. To effectuate that purpose he postponed the vesting of the gifts to a time when those who were to take them, which he provides shall be his children and the children of his deceased children, should have immediate possession.

In Drury v. Drury, 271 Ill. 336, there was a clause in the will containing much the same provisions as the clause under consideration, and there was a gift to a class, to take effect at the death of the life tenant. The court said:

“There was no language in the will which confined the gift to great-grandchildren in existence at the testator’s death, and the rule is that where the gift is not in terms immediate and so confined and a gift to a class is postponed pending the termination of a life estate, those members of the class and those only, take who are in existence at the death of the life tenant. * * * The gift to the great-grandchildren was, in terms, postponed pending the termination of the life estate intervening between the death of the testatoj and the time when he provided the same should vest upon a condition to be then ascertained, and only those took who were in existence at the termination of the life estate. (Handberry v. Doolittle, 38 Ill. 202; Brewick v. Anderson, 267 id. 169; 40 Cyc. 1477; Webber v. Jones, 94 Me. 429; Satterfield v. Mayes, 11 Humph. 58.) Bessie May Drury has no interest in the property, and upon the death of the life tenant it vested in the great-grandchildren of Bichard Drury who were then living. * * * >7 °

We are aware that there are many authorities that are at first hlush in apparent conflict with the above quotation, but we think they can all be distinguished on the facts from the case at bar, and from the cases cited.

There is still another reason why the devisees of the remainder after the death of the widow should not be construed to have a vested interest until after the death of the widow, and that is, there are no express words giving or devising anything to any one in the clause of the will under consideration. The disposition of the property there made is by way of direction to the executor as to how to distribute the proceeds of the sale to be made after the death of the testator’s widow. Under that sort of language the distributees acquire no vested interest in the property until the time for distribution arrives. McCartney v. Osborn, 118 Ill. 403; Kingman v. Harmon, 131 Ill. 171; Bates v. Gillett, 132 Ill. 287; Strode v. McCormick, 158 Ill. 142; Dee v. Dee, 212 Ill. 352; Smith v. Chester, 272 Ill. 428, citing with approval Thompson v. Adams, 205 Ill. 552. In the last case cited the court said, on page 559:

“It will be observed that the will contains no words devising or bequeathing property to any of the descendants of the testator, except words directing distribution to them upon the remarriage or death of the widow. This is an indication that the testator did not intend the title to the property in remainder to vest until the death or remarriage of the widow. (Ebey v. Adams, 135 Ill. 80.) ”

And see Ayars v. Doyle, 166 Ill. App. 414-421.

There is an exception to the foregoiiig rule which prevents it from being of universal application, and that is when the distribution is postponed for the purpose of letting in a life estate the gift to the remainder-man vests at mice. Carter v. Carter, 234 Ill. 507. This exception referred to in the Carter case, supra, has, however, no application to the case at bar because the postponement in this case could not possibly have been for the purpose of letting in a life estate.

Under the will in this case the wife was given certain lands and personal property to be hers absolutely, which gifts the testator made plain by the further provision of his will that they were not to be in lieu of dower, for he added, at the close of the portion of the will by which these gifts were made, the following language: “In addition I bequeath to her, full statutory dower in all my property, real and personal or mixed. ’ ’ He could as well have said, “the foregoipg bequests are not in lieu of but an addition to her statutory right of dower.” Where by a will the testator provides that his estate or any part of it shall be distributed according to the provisions of the statute, the beneficiary is presumed to take as heir under the statute and not under the will. In re Taylor’s Will, 55 Ill. 252; Welch v. Wheelock, 242 Ill. 380. It follows that whether the rights of other beneficiaries named in the will were vested at the death of the testator or postponed to the death of the widow was a matter in which the widow was in no way concerned, and she could in neither event be benefited or harmed and the testator knew it, or was presumed to know it.

It is therefore certain that the postponement of the vesting of the gifts to others than the widow was not done for her -benefit. Flossie Dunbar, having died several years before the death of the widow of the testator, the only living children of Almira Dunbar at that time when the estate was for the first time ripe for distribution, and the only representatives of the class to which the share of Almira Dunbar was to be distributed, were Robert H. Morford and Charles R. Dunbar, and they were entitled to the fund in question. That was the conclusion the Circuit Court came to and the order appealed from directed the distribution to be made to them. The order of the Circuit Court is therefore affirmed.

Affirmed.


text:
    Fred Schenck, Appellee, v. Midland Lumber Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    I.* 1 Appeal and error, § 1778

      —when judgment on finding tosed upon conflicting evidence will not te reversed. In an action to recover damages for breach of contract, where the evidence is conflicting, the judgment will not be reversed unless the finding of the jury was manifestly contrary to the weight of the evidence.
    2. Sales, § 401*—when evidence supports verdict for plaintiff in action for treaeh of contract. In an action to recover damages for a breach of contract, evidence held sufficient to support a verdict for plaintiff.
    Appeal from the Circuit Court of Piatt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by Fred Schenck, plaintiff, against 'the Midland Lumber Company, defendant, to recover damages for a breach of warranty in a contract of sale of building material. From a verdict and judgment for plaintiff for $375, defendant appeals.
    J. L. Hicks, for appellant.
    William A. Doss and F. M. Shonkwiler, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    City of Springfield, Appellee, v. Springfield Consolidated Railway Company, Appellant.
    1. Municipal corporations—what is nature and effect of ordinance providing for a charge for poles placed in the street. An ordinance providing for a charge for poles placed in the streets is not passed for the enforcement of local governmental supervision or in the exercise of any governmental power, but in the exercise of the proprietary power of the city, and establishes a charge in the nature of a rental for the use of parts of the streets.
    2. Street railroads, § 6

      —when city has right to grant use of streets to street railway. A city has the right to grant the use of its streets to a street railway company for its tracks, poles and wires.
    3. Street railroads, § 15*—when city has right to impose conditions for use of street by street railway. In granting to a street railway company the right to use the streets for its tracks; poles and wires, a city can impose such conditions as it sees fit.
    4. Street railroads, § 13*—when ordinance granting use of streets becomes binding contract. An ordinance granting a street railway company the right to use the streets for its tracks, poles and wires becomes a binding contract on the city when it is accepted and its conditions complied with.
    5. Street railroads, § 2*—what constitutes impairment of contract for use of street by street railway company. An ordinance imposing a rental for placing poles in the streets has the effect of amending a special contract ordinance under which a street railway company has been granted the right to use the streets for its wires, poles and tracks, by increasing the consideration for the special contract ordinance and thereby impairs the contract.
    6. Street railroads, § 15*—what rights are reserved in city under ordinance granting use of streets subject to future reasonable ordinances. The reservation in a special contract ordinance granting a street railway the right to use the streets for its wires, poles and tracks that the rights so granted shall be subject to “all reasonable ordinances that may be hereafter passed concerning streets and street railways” does not reserve to the city the.right thereafter to increase the consideration to be paid for the right by imposing a pole rental, but merely reserves to the city the power to make additional regulations under its governmental or police powers as to the manner in which the use of the streets shall be exercised and such as would inure to public safety and convenience.
    Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916. Certiorari denied by Supreme Court (making opinion final).
    Reversed.
    Opinion filed October 11, 1917.
    Wilson, Warren & Child, for appellant.
    Frank L. Hatch and Albert Stevens, for appellee; Timothy McGrath, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal from a judgment rendered against appellant in the Circuit Court of Sangamon county in favor of appellee in an action for the sum of $1,726.

The action was brought for the purpose of recovering compensation or remuneration for the use of portions of the streets occupied by appellant for street railway purposes, and was based upon an ordinance passed by the City of Springfield, August 5, 1901, which provides as follows:

“Any person, firm or corporation owning, controlling or occupying any post or pole over eight feet high, which may occupy any portion of any street, alley or sidewalk within the City of Springfield, said pole or post being used to support electric or other wires of whatsoever nature, or to support any sign or awning or display for the purpose of advertising, shall pay annually into the city treasury the sum of one dollar for each' such pole or post owned, controlled or occupied by said person, firm or corporation as a remuneration to the city for the use of the portion or portions of the street, alley or sidewalk which said pole or post may occupy.

“The license hereinbefore provided shall be due on the first day of September of each year.”

While numerous errors have been assigned, they all involve the one ultimate issue as to whether appellant was subject to this ordinance because of the terms of the ordinance granting to it the right to construct and maintain its street railway on the streets of said city, including the right to erect and maintain poles in connection therewith. On January 20, 1890, the City of Springfield, by ordinance, granted the right to appellant to operate its lines of street railway in said city by electric power, and, in said ordinance, authorized it to erect suitable poles and supports in and along the streets for the carrying of wires to transmit the electric current. The ordinance uses this language:

“That in addition to the rights and privileges now owned and held by the Springfield City Railway Company, and subject to the provisions and regulations hereinafter made, and to existing ordinances of said city, and all reasonable ordinances that may be hereafter passed concerning streets and street railways, there is hereby granted to said company, its successors and assigns, the right and authority to operate its lines of railway by electric power, and said company shall, at all times, operate its lines so as not to obstruct the public use of said streets.”

The proofs show that during the years 1906 and 1907 appellant maintained in the streets 863 poles over 8 feet high. The position taken by appellee is that appellant is subject to the provisions of the pole-rental ordinance for the reason that the ordinance, granting to it the right to operate its railway by electricity and to erect and maintain poles in the streets for that purpose, was subject to “all reasonable ordinances that may be hereafter passed concerning streets and street railways.” The contention of appellant is that these words only apply to ordinances that might be subsequently passed by virtue of the governmental functions of the city under its police powers and that the pole-rental ordinance, having been adjudicated to be an ordinance passed under the proprietary functions of the city, cannot be enforced against appellant. This pole-rental ordinance has been twice under the consideration of the Supreme Court and it has been held that it was not passed for the enforcement of local governmental supervision or in the exercise of any governmental power, but in the exercise of the proprietary power of the city and establishes a charge in the nature of a rental for the use of parts of the streets. City of Springfield v. Interstate Independent Telephone & Telegraph Co., 279 Ill. 324; City of Springfield v. Postal Tel. Cable Co., 253 Ill. 346. Appellee had the right to grant the use of its streets to appellant for its tracks, poles and wires, and, in granting that right, could impose such considerations and conditions as it saw fit. Sears v. City of Chicago, 247 Ill. 204; Lobdell v. City of Chicago, 227 Ill. 218; Chicago General Ry. Co. v. City of Chicago, 176 Ill. 253; Byrne v. Chicago General Ry. Co., 169 Ill. 75. When the ordinance was accepted and the conditions therein named complied with, it became a binding contract upon the city from which it cannot recede. City of Springfield v. Interstate Independent Telephone & Telegraph Co., supra, and cases cited. Among the conditions imposed upon appellant by its contract ordinance were its duty to pave the streets between the rails of its tracks and for a space of twelve inches outside of the rails; to keep such pavement in repair; not to charge an excess of five cents .as a fare for a continuous trip in one direction; and to issue transfer tickets at transfer points. The ordinance also contains specific directions as to what kind of poles'shall be erected and the manner in which they and the wires shall be erected and maintained. The consideration for such a grant is not generally found in a general ordinance. In the case of Chicago General Ry. Co. v. City of Chicago, supra, it is said: “We think, with counsel for the city, that the statute having given the municipality power to grant or withhold its consent as ‘it shall deem for the best interest of the public,’—the power being discretionary,—it is manifestly not to be exercised by a general ordinance applicable alike to all cases, but each case must be acted upon with reference to its peculiar conditions and circumstances.” It is apparent that the pole-rental ordinance, being for the sole purpose of charging additional compensation for the use of the streets by the erection of poles thereon, if applied to appellant, would have the effect of amending the special contract ordinance with the city by increasing the consideration therefor, which would be a direct violation of the restrictions of law on the impairment of contracts. City of Quincy v. Bull, 106 Ill. 337; People v. Chicago Tel. Co., 220 Ill. 238; City of Chicago v. Chicago Tel. Co., 230 Ill. 157; People v. Chicago Tel. Co., 245 Ill. 121. We are of the opinion that the provision in the special contract ordinance that the rights therein granted shall be subject ,to “all reasonable ordinances that may be hereafter passed concerning streets and street railways” does not reserve in the city the power at any time to increase the compensation or consideration to be paid for the grant of the 1 use of the streets but only reserves the power to make additional regulations under its governmental or police powers as to the manner in which the use of the streets shall be exercised and such as would inure to the public safety and convenience. The city would undoubtedly have the right to pass an ordinance regulating the speed with which cars might run within the city, the frequency with which they should run, the stopping of cars at street crossings, the use of fenders, etc. Such regulations would not be invasions of the contract rights of appellant but would be just and reasonable. When this pole-rental ordinance was before ns in this court in the case of City of Springfield v. Central Union Telephone Co., 184 Ill. App. 400, we held that the Telephone Company in that ease was subject to the provisions thereof for the reason that it was in force as one of the general ordinances of the city when the special contract ordinance between the city and the Telephone Company was enacted, and the latter contained the provision that the rights therein granted “shall be subject to all general ordinances of the city now in force.” This provision made the pole-rental ordinance a part of the contract ordinance itself. In the case at bar the pole-rental ordinance was not passed until many years after the passage of the contract ordinance of appellant. We believe that the views herein expressed are supported by the greater weight of authority. City of Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 417; Detroit v. Detroit Citizens’ St. Ry. Co., 184 U. S. 368; City of New Orleans v. Great Southern Telephone & Telegraph Co., 40 La. Ann. 41; Town of New Decatur v. American Telephone & Telegraph Co., 176 Ala. 492; Faust v. Passenger Ry. Co., 3 Phila. (Pa.) 164.

The judgment of the Circuit Court is reversed.

Reversed.


text:
    Henry Kreher, Executor, Appellee, v. John B. Beckett et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 230

      —lohat are rights of trustee under deed of assignment. One .taking a promissory note as trustee under a deed of assignment holds it subject to the same defenses which might have been urged against his assignor.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with directions.
    Opinion filed October 11, 1917.
    Statement of the Case..
    Bill by Henry Kreher, executor of the last will and testament of Richard Kreher, deceased, complainant, against John B. Beckett, George D. Miller, J. A. Brown and others, defendants, to enjoin an action by defendants to recover on certain promissory notes. Defendants filed a cross-bill, and, upon a hearing, both the original bill and the cross-bill were dismissed for want of equity. From the decree dismissing the cross-bill, defendants appeal and complainant assigns cross error to that part of the decree dismissing the original bill for want of equity.
    Mills Brothers and Herrick & Herrick, for appellants.
    Whitley & Fitzgerald, Redmon, Hogan & Redmon and Vail, Miller & Pogue, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cnmniative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

2. Injunction, § 15 —when hill to enjoin action at law does not lie. A bill to enjoin the prosecution of an action at law will not lie when the complainant has a complete and adequate remedy at law, that is, where he can plead and maintain his defense in the action at law.

3. Injunction, § 15*—when equity will entertain jurisdiction to enjoin action at law. A court of equity will entertain jurisdiction of a bill to enjoin the prosecution of an action at law, especially when its jurisdiction is not questioned, when the remedy at law is doubtful or incomplete, by reason of its involving complicated accounts or incidental matters bearing upon the ultimaté rights of the parties, and when all of the questions involved can be determined and .the rights of all parties most advantageously or expeditiously adjusted in equity.

4. - Equity, § 62*—when loill disregard form of transaction. A court of equity will look to the substance rather than the form of a transaction in reaching a determination of material questions involved, and, as far as necessary to that end, will disregard matters of mere form.

5. Bills and notes, § 19*—when evidence shows execution of notes for purpose of accommodation. On a bill to enjoin the prosecution of an action at law by trustees to recover on notes held by them under an assignment, evidence held to show that such notes were executed for the accommodation of the assignor.

6. Injunction, § 22*—when prosecution of action at law hy assignees of notes mil he enjoined. The prosecution of an action at law by the assignees of promissory notes to recover on such notes will be enjoined where the evidence shows that they were executed for the accommodation of the assignor.


text:
    The People of the State of Illinois ex rel. J. Fay Cusick, Appellant, v. City of Chrisman, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mandamus, § 6*—what is nature of writ of and right to. A writ of mandamus is not a writ of absolute right, but the judicial discretion of the court controls the granting of it, even where a clear legal right to the writ appears.
    2. Mandamus, § 1*—when wit of will not he granted. A writ of mandamus will not be granted where such action will not promote substantial justice.

      Appeal from the Circuit Court of Edgar county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Statement ‘of the Case.
    Action of mandamus by the People of the State of Illinois on the relation J. Fay Cusick, plaintiff, against the City of Chrisman, defendant, to compel defendant to rebuild a tile, to lay it out properly and to clean it and the gutter and ditch connecting therewith. Defendant answered denying its construction and negligent maintenance of the tile and ditch and averring that it was proceeding under the Local Improvement Law (J. & A, 1388 et seq.) to construct a complete sewer system for the city by special assessment. From a judgment in favor of defendant, plaintiff appeals.
    Fred Rhoads and J. Fay Cusick, for appellant.
    Dyas & Dyas, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the cpurt.

3. Mandamus, § 57 —when writ will not he granted to compel city to reconstruct old tile drain and ditch. A writ of mandamus will not be granted to compel a city to reconstruct at considerable cost an old tile drain and open ditch, even though the drain and ditch as maintained are injurious to abutting, owners, where the city is proceeding under the Local Improvement Law (J. & A. t 1388 et seq.), to construct a complete system of drainage in the city which will render the reconstruction of the old drain and ditch useless and needless.

4. Mandamus—when evidence insufficient to warrant writ of. Evidence, in an action of mandamus to compel a city to reconstruct a tile drain and open ditch, examined and held insufficient to warrant the granting of the writ.


text:
    Pearl Eckels, Appellee, v. John Pocorra, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action on the case by Pearl Eckels, plaintiff, against John Pocorra and James E: Gash, defendants, for malicious prosecution. From a judgment for plaintiff for $200, defendant Pocorra appeals.
    Smith & Friedmeyer, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and ebror, § 1787 —when Appellate Court may either reverse judgment or consider case on merits. Where an appellee files no brief or argument, the Appellate Court may either reverse the judgment pro forma under its rules or consider the case on the merits.

2. Malicious prosecution, § '58*—when plaintiff has burden of proof. In an action for malicious prosecution, the' burden is on the plaintiff to show that defendant either caused his arrest for the offense charged or aided and abetted it in some way with malice and without probable cause.

3. Malicious prosecution, § 74*—when evidence does not show malice or that defendant caused, aided or abetted arrest. In an action for malicious prosecution, evidence held insufficient to show that defendant caused or aided and abetted in plaintiff’s arrest, or that he acted maliciously and without probable cause in connection with such arrest, or had any motive for so acting.


text:
    Hal Fawver, Appellant, v. George E. Flesher, Appellee.
    1. Fraudulent conveyances, § 80*—when gift of mercantile business by father to son deemed fraudulent. The facts that a father is largely indebted when he makes a voluntary gift of his mercantile business to his son and that he shortly thereafter becomes insolvent render the transaction fraudulent as to creditors.
    2. Fraudulent conveyances, § 271*—when evidence shows transfer of property by father to son to be fraudulent. Evidence examined and held to show that the transfer of property by a father to his son was fraudulent as to the former’s creditors.
    3. Appeal and error, § 112*—when error of trial court in passing upon propositions of law and fact not reviewed. On appeal in a replevin proceeding by judgment creditors to recover property claimed by defendant under a transfer by the judgment debtor, where the court finds that the transfer was fraudulent as to creditors, it will not determine whether or not the trial court may have erred in passing upon the propositions of law and fact submitted.

      Appeal from the Circuit Court of McLean county; the Hon. 'Thomas M. Habbis, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 11, 1917.
    Rehearing denied December 1, 1917.
    Herrick & Herrick and Sterling & Whitmore, for appellant.
    De Mange, Gillespie & De Mange, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

On June ,16, 1915, a judgment hy confession for the sum of $6,568.05 was entered in the Circuit Court of McLean county in favor of L. J. West and against J. H. Fawver. An execution was issued on the judgment and appellee, as sheriff, levied upon" a stock of general store merchandise, fixtures, etc., located at Monarch, Illinois, as the property of said J. H. Fawver, who is the father of appellant. Appellant regained possession of the property levied upon by a writ of replevin. The replevin suit was submitted to the court for trial without the intervention of a jury and the pleadings present the issue whether appellant, Hal Fawver, or his father, J. H. Fawver, owned the property involved at the time it was levied upon by*appellee. The court found that J. H. Fawver was the owner of the property at the time that the judgment was rendered, and that it was subject to levy under execution for his debt, and entered judgment against appellant for return of the property to appellee and for costs of suit. From this judgment appellant prosecutes this appeal.

For several years prior to 1907, L. J. West and J. H. Fawver were business partners and engaged in the grain business at Sabina, Illinois. In 1907 this partnership was dissolved and J. H. Fawver continued' in the grain business. In 1909 he purchased a general store at Monarch, Illinois, which was valued at that time, including the fixtures, at about $2,000. J. H. Fawver was also a farmer and resided on his farm about four miles from the store. Between 1909 and 1911 he had employed two different men to manage the store for him. The evidence shows that after the dissolution of the partnership, J. H. Fawver engaged heavily in speculation in grain. In 1910 he borrowed large sums of money from the J. Keenan’s Bank at LeRoy, and at this time West was surety on his notes to the extent of about $15,000. His indebtedness to the bank was extended from time to time and in 1911 the bank held his note for $13,372.55, with West as surety thereon, the personal note of West of $5,000 and his own note to one Kline for $3,500, with West as surety thereon. In 1914, to secure West for the use of the $5,000 note, J. H. Fawver deposited with the bank his own $5,000 note payable to West. In 1911, J. H. Fawver sold a farm consisting of 160 acres for $21,000, but it appears that no part of this money was ever paid by bim upon his indebtedness to the bank' for which West was surety. In 1914, the bank demanded payment of J. H. Fawver’s notes and the latter, being unable to pay them, West as surety thereon was compelled to pay the loans, amounting to about $22,500 in all, and the bank returned to West the $5,000 note before mentioned, which J. H. Fawver had placed with the bank as surety for West.

In 1911, appellant was between 17 and 18 years of age, and testified that his father, J. H. Fawver, told bim if he would run the store for him he would give bim a half interest in it. Appellant thereafter managed the store but continued to live with his father. In January, 1914, West demanded reimbursement of J. H. Fawver for the moneys he had been compelled to pay as surety on his notes. Immediately thereafter .appellant ceased to deposit the store account in the bapk and kept the store money in a chiffonier at his father’s house where he lived. The evidence further shows that in the spring of 1914, appellant and his father had some disagreement, in consequence of which he left the store and hired out to a farmer and worked for him as a farm hand until August of that year. During this time J. H. Fawver and his employee, George Thing, ran and managed the store. e About the 1st of June, 1915, West notified J. H. Fawver that, unless he paid him the indebtedness mentioned, he. would bring suit to collect it. On June 10, 1915, J. H. Fawver executed a bill of sale of the store business to appellant, his son. Thereupon West took the judgment mentioned upon the $5,000 note and began suit in assumpsit to recover the balance of the $22,500, and J. H. Fawver went into voluntary bankruptcy.

After appellant received the bill of sale, he again commenced depositing money received from the store in the bank. After appellant left the store in 1914, and went onto the farm to work, he claims that he and his father settled their differences and that his father made a proposition to him to turn over to him the other half interest in the business. It appears that J. H. Fawver, his father, had drawn out of the business cash to the amount of about $600, and appellant claims that his father proposed .to him that, if he would come back and take up the management of the store, his father would turn over to him the whole business after he had drawn out of it enough additional money, which together with the $600 he had already drawn out, would make the $2,000, which his father had originally invested in the business. Appellant testified that he accepted this proposition and went back into the store in the month of August and has remained there ever since. There thus remained $1,400 to be drawn out of the business to reimburse J. EL Fawver for his original investment. J. H. Fawver testified that he drew out of the business during the fall and spring of 1915, this amount by paying for grain with store accounts, after which he considered appellant as the owner of the entire store business, and on June 10, 1915, executed the bill of sale heretofore mentioned. The proofs show that when the first alleged agreement was made between appellant and his father, wherein his father agreed to give to appellant a one-half interest in the store if he would manage it for him, appellant was but 18 years of age, and there was no other evidence in the record of his emancipation. The contract was an executory and conditional one with no agreement as to what period of time appellant would have to manage the store before he would become entitled to the ownership of the one-half interest therein. After appellant’s disagreement with his father in the spring of 1914, he left the store and went to work on a farm and continued in said work for about 6 months, or until the 1st part of August of that year. His father testified, in substance, as follows: “He wanted his half, and I was waiting for him to come back. I told him if he would come back and attend to the business right and look after it properly, I would take out the original investment for the stock, and he could have it all. He said he would do it.” Appellant never drew out any of the profits of the business but only received therefrom $5 per week. His father at all times listed the property for taxation as his own and paid the taxes thereon. The accounts for goods purchased for the store from the wholesale firms remained in the name of J. H. Fawver until after the execution of the bill of sale. No inventory of the stock of merchandise was ever made. While appellant’s father may not have been actually insolvent between 1911 and 1914, he was indebted to a large extent and appellee was one of his creditors and was also surety on his notes, aggregating over $15,000, which he afterwards had to pay. At the time the alleged bill of sale was made in 1915, J. H. Fawver was unquestionably insolvent and appellee was his creditor in the sum of $22,500. The record is large and there are many other facts and circumstances not mentioned herein shown by the proofs which tend to sustain the finding of the court that as against appellee the alleged gift or sale by J. H. Fawver to appellant of the store business and stock of merchandise in question was fraudulent.

The actual insolvency of J. H. Fawver was not necessary in order to render the transaction with appellant void. The fact that J. H. Fawver was largely indebted when he made the voluntary gift to appellant and shortly thereafter became insolvent makes the transaction fraudulent as to the creditors of J. H. Fawver. Hauk v. Van Ingen, 196 Ill. 20; Kennard v. Curran, 239 Ill. 122. In the case of Kennard v. Curran, supra, it is held: “There may be expressions in certain decisions which lend countenance to the idea that a voluntary conveyance will not be invalid for fraud if made when there is property remaining, the value of which at the time amounted to all the indebtedness, but the settled rule now is that if a person is largely indebted and makes a voluntary conveyance and shortly after becomes insolvent, it is proper to set aside the conveyance as fraudulent.”

The evidence is sufficient to establish the fact that there never was such an executed contract' in 1911 between appellant (and his father as would invest the former with the ownership of a half interest in the merchandise and business of the store, and that the bill of sale executed on June 10, 1915, assuming to convey the remaining interest in the stock of merchandise of J. H. Fawver to appellant, was made to avoid the effect of the Bulk Sales Act of 1913 [Callaghan’s 1916 St. Supp. 1021 (1) et seq.], which is applicable only to the sale, transfer or assignment in bulk of the major part or the whole of a stock of merchandise. The court was justified by the proofs in finding that the "whole transaction between appellant and his father, J. EL Fawver, was fraudulent as to the creditors of the latter. This being true, it is unnecessary to determine whether the court may have made some error in passing upon the propositions of fact and law submitted. The judgment of the Circuit Court is affirmed.

'Affirmed.


text:
    R. E. Garrett and A. G. Johnson, Plaintiffs in Error, v. C. B. Spang et al., Defendants in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Bill by C. B. Spang, complainant, against Asa W. Sawin, Anna M. Sawin, R. E. Garrett and A. G. Johnson, defendants, to foreclose a mortgage. The bill averred that, subsequently to the execution of the mortgage by defendants Sawin, the property mortgaged was conveyed to defendants Garrett and Johnson, who assumed the mortgage debt. A decree was entered for plaintiff for $1,763.70, defendants Garrett and Johnson having failed to appear or answer. After a sale of the property a judgment for a deficiency of $411.32 was decreed against all the defendants. Defendants Garrett and Johnson, without filing answers, moved to set aside and vacate the motion and judgment, which motion was denied. To reverse the order denying such motion, Garrett and Johnson prosecute this writ of error.
    Isaac A. Love, for plaintiffs in error.

      Abstract of the Decision.
    1. Equity, § 538

      —when discretion of court in passing on motion to set aside decree by default not disturbed. A motion to set aside a decree entered by default is addressed to the sound legal discretion of the court, which will not be interfered with on appeal unless it appears to have been wrongfully and oppressively exercised.
    2. Equity, § 538*—when motion to set aside default decree properly overruled. Where an answer does not accompany a motion to set aside a decree entered by default, it is not an abuse of discretion to overrule the motion.
    3. Equity, § 538*—when not abuse of discretion to overrule motion to set aside default decree. Where no attempt is made for nearly 2 years to have the court pass upon a motion made to set aside a decree entered by default which is not accompanied by" an answer, it is not an abuse of discretion to overrule such motion.
    Rearick & Meeks, W. T. Henderson and Acton & Acton, for defendants in error.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. John A. Phares, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the County Court of De Witt county; the Hon. Frederick C. Hill, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against John A. Phares, defendant, charging defendant with the unlawful sale of intoxicating liquors in anti-saloon territory and with keeping a common nuisance in anti-saloon territory. To reverse a judgment finding him guilty of unlawfully selling intoxicating liquors in anti-saloon territory, defendant prosecutes this writ of error.
    Abstract of the Decision.
    1. Juey, § 80

      —what is not improper examination of furor in criminal case. On an information charging the unlawful sale of intoxicating liquors in anti-saloon territory, an examination of a juror hy the State’s Attorney which first states the substance of the statute under which the information is brought and then asks the juror, in substance, whether he would recognize that principle of law if, under the evidence, the case should he a proper one in which to apply the law, is not objectionable, especially where no showing is made that any juror was prejudiced thereby or that the peremptory challenges of defendant had been exhausted when the question was asked.
    2. Criminal law, § 147*—when question on cross-examination improper as calling for conclusion of witness. On an information charging the unlawful sale of intoxicating liquors in anti-saloon territory, an objection is properly sustained to the question put hy defendant on his cross-examination of a witness, as to whether the witness ordered or bought the beer from defendant, as such question called for a conclusion of fact which was for the jury to determine.
    3. Intoxicating liquors, § 151*—when evidence sustains conviction for illegal sale in anti-saloon territory. On an information charging the unlawful sale of intoxicating liquors in anti-saloon territory, evidence held sufficient to support a conviction.
    A. F. Miller, Frank K. Lemon and Edward J. Sweeney, for plaintiff in error.
    Edward J. Brundage, Arthur R. Roy and Grover C. Hoff, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Nora Edwards, Appellant, v. Ruth Prust, Appellee.
    (Not to he reported iu full.)
    Abstract of the Decision.
    1. Bailment, § 25

      —what are questions for jury in action against bailee for injury to horse. Whether plaintiff’s son was her agent and had a right to loan her horse to defendant and receive it back from defendant and turn it over to another girl, held, in an action to recover for injuries to the horse while ridden by the girl, to be questions for the jury.
    2. Appeal and error, § 1744*—when judgment affirmed. Where the instructions, although faulty and subject to criticism, taken as • a series could not have misled the jury, and two juries had found the facts adversely to appellant, held that the judgment should be affirmed.
    Appeal from the Circuit Court of Clark county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action by Nora Edwards, plaintiff, against Ruth Prust, defendant, to recover for injuries to plaintiff’s horse loaned to defendant by plaintiff’s son. From a judgment for defendant, plaintiff appeals. For abstract of decision remanding the cause on a former appeal, see Edwards v. Prust, 201 Ill. App. 399.
    Everett Connelly and Arthur Poorman, for appellant.
    Samuel M. Scholfield and John J. Arney, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    B. F. Lawrence and J. S. Lawrence, Appellees, v. Albert C. Hammond, Administrator, Appellant.
    1. Witnesses, § 114

      —when' maker of note is competent witness in suit by sureties to enjoin collection of note by administrator. In a suit by sureties on a note against the administrator of the estate of the deceased payee of the note to enjoin the administrator from the prosecution of an action at law on the note to recover the amount thereof, where the allegations and proof in such suit showed that the maker of the note had given a mortgage on certain lands as additional security on the note, but it was not recorded until seven years after the execution and delivery of the note and after the mortgagor had conveyed the lands to another, and the maker and the payee of the note on several interest dates had entered into agreements without notice to the sureties for extension of the time of payment of the note, held that while the maker of the note was not a competent witness in the action at law as to the matters sought to be proven by the sureties, he was a competent witness in equity, and a bill in equity was the appropriate remedy.
    2. Peincipal and surety, § 16*—when sureties released from liability by extension of time of payment. Extension of the time of payment of a note without the knowledge or consent of the sureties thereon operates as a release of their liability as such.
    3. Principal and surety, § 61*—when mortgage is also for benefit of sureties. Where the payee of a note executed by a principal debtor and sureties also received at the time of its execution a mortgage on. real estate as additional security, held that in equity the mortgage was not only for the payee’s benefit but also for ■ the sureties’ indemnity as well.
    4. Principal and surety—when sureties released •from liability by destruction of collateral security. The destruction by the payee of a note of collateral security held by him as additional to sureties on the note without their consent will operate to release them from liability on the note.
    Appeal from the Circuit Court of Clark county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Scholfield & Scholfield, for appellant.
    Graham & Snavely, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellees, B. F. Lawrence and J. S. Lawrence, filed their bill in equity to enjoin the prosecution of a suit at law instituted by appellant, as administrator of the estate of Clark H. Hammond, deceased, against them and Sylvester Hazen to recover the amount due upon a promissory note executed on February 11, 1907, by Hazen and appellees, payable to the order of Clark H. Hammond, for the principal sum of $600, due four years after date with 7 per cent, interest per annum.

It is alleged in the bill that said Hazen was the principal debtor and that appellees were sureties, which fact was known to Clark H. Hammond at the time of the execution of the note; that at the same time, as further security for the note, said Hazen and his wife executed and delivered to said Clark H. Hammond a mortgage on certain real estate, but that the scrivener, in writing said mortgage, stated therein that said note secured thereby was a note signed by Hazen and his wife, whereas in truth and in fact the mortgage was given to secure the-note signed by said Hazen and appellees; that said appellees signed said note as sureties with the full understanding that said mortgage was to be given as additional security for said note, and that it was because of the additional mortgage security that they were induced to sign said note as sureties; that said mortgage was not placed upon record until April 28, 1914, more than seven • years after the same was executed; that prior to the recording of said mortgage, said Hazen and his wife, by warranty deed, conveyed said real estate, which deed was placed upon record March 7, 1911; the grantee in said deed, on March 7, 1911, executed and delivered a mortgage on said real estate for the sum of $900, which mortgage was recorded March 7, 1911; that said real estate was worth in excess of said mortgage of $600, and was ample security therefor; that on account of the failure of Clark H. Hammond to place the first-mentioned mortgage upon record, the property was deeded away and the security created thereby entirely lost to appellees; that by reason of the failure of said Clark H. Hammond to place said mortgage on record as aforesaid, and the consequent loss of said security, appellees have become fully discharged from all liability upon said note so executed by them; that said Clark H. Hammond died April 12, 1915, and appellant was appointed administrator of his estate; that on several interest dates after said notes became due, Clark H. Hammond and Sylvester Hazen entered into agreements whereby the time of payment of said note was extended by said Hammond for a year at a time without the knowledge or consent of appellees, and the latter, by reason of said extensions without notice to them, became released as sureties on said note and discharged from any liability thereon; that at the time said Hazen contemplated selling said real estate he informed said Clark H. Hammond of such intention and that the latter advised him to go ahead and make the sale and that it would be all right with him, and said sale of said real estate was made with the full knowledge and advice of said Clark H. Hammond; that said Hazen is, under the law, an incompetent witness to testify in said suit at law commenced by said administrator and is the only person by whom the agreements to extend the times of payment and the question of surety and notice to said Clark H. Hammond of the same can be proven, and that this suit is necessary for the purpose of securing the testimony of said Hazen, in regard to these matters.

The proofs sustain the allegations of the bill and a decree was entered, enjoining the prosecution of the suit at law and discharging appellees from any* liability as sureties on said note.

It is apparent that Clark H. Hammond, the payee in the note, being dead, Hazen, the maker thereof, would be an incompetent witness of the matters sought to be proven in the suit at law. In equity, however, he would be a competent witness, and a bill in equity is an appropriate remedy in a case of this character. Dodgson v. Henderson, 113 Ill. 360; Bradshaw v. Combs, 102 Ill. 428; English v. London, 181 Ill. 614.

The extensions of the time of payment of the note without the knowledge or consent of the sureties operated as a release of their liability as such. English v. Landon, supra; Dodgson v. Henderson, supra.

If the payee of a note, executed by the principal debtor and sureties, at the time of its execution also receives a mortgage on real estate as further security, in equity the mortgage is not only for the payee’s security but for the sureties’ indemnity as well. Beaver v. Slanker, 94 Ill. 175. A destruction of such collateral security by the payee without consent of the sureties will operate to release the sureties from liability upon the note. Rogers v. Trustees of Schools, 46 Ill. 428; Kirkpatrick v. Howk, 80 Ill. 122; Hall v. Hoxsey, 84 Ill. 616; Phares v. Barbour, 49 Ill. 370.

Clark H. Hammond in his lifetime not only held the mortgage as collateral security for the payment of the note, but also as trustee for the benefit of appellees, as sureties on the note. If appellees had been required to pay the note, they would have had the right to have been subrogated to the rights of Clark H. Hammond in the mortgage. He having failed to record the mortgage and having consented to a conveyance of the real estate, appellees lost the security of the mortgage through his acts and became released from any liability as sureties upon the note. The decree of the Circuit Court is affirmed.

'Affirmed.


text:
    Clara Purtle, Appellee, v. Harry Caldwell, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal Aim ebbob, § 1779

      —when instructions reversibly erroneous because not in conformance with evidence. In an action to recover upon an express contract denied by defendant for services performed at an agreed price, where instructions stated, in substance, that even if the jury believed from the evidence that no definite amount was agreed upon yet defendant would be liable to pay plaintiff a reasonable compensation for the services performed, and there was no evidence whatever as to what the services were reasonably worth, held that a judgment for plaintiff should be reversed.
    Appeal from the County Court of Fulton county; the Hon. Hobabt S. Boyd, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Action of assumpsit by Clara Purtle, plaintiff, against Harry Caldwell, defendant, to recover for services performed by plaintiff in caring for defendant’s mother at defendant’s request. Prom a judgment for plaintiff for $387, defendant appeals.
    A. E. Taff, for appellant.
    Harvey H. Atherton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Stella M. McDonald, Plaintiff in Error, v. Myrtie A. Watson et al., Defendants in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Equity, § 461

      —when defendant in default is precluded from questioning competency or sufficiency of evidence. A defendant in default against whom a decree pro eonfesso is taken is precluded from questioning the competency or sufficiency of the evidence to support the decree where the allegations of the bill are sufficient to sustain the decree.
    2. Mortgages, § 77*—when grantee not personally liable to pay - mortgage. The mere acceptance of a deed subject to an outstanding mortgage specified therein creates no personal liability on the grantee to pay the mortgage.
    3. Equity, § 461*—what is effect of decree pro eonfesso. A decree pro eonfesso concludes the defendants as to matters of fact alleged in the bill but does not conclude them as to any conclusion of law averred therein.

      Error to the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 11, 1917.
    Statement of the Case.
    Bill by Stella M. McDonald, complainant, against Myrtie A. Watson and others, defendants, to foreclose a mortgage upon certain real estate. From a deficiency decree against certain defendants and omitting certain other defendants, complainant brings error.
    Ray D. Meeker, for plaintiff in error.
    W. G. Cochran and Whitley & Fitzgerald, for defendants in error.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

4. Equity, § 461 —how decree pro confesso may he attacked as to averments of conclusions of law in hill. As to conclusions of law averred in a bill, a decree pro confesso may be attacked after its rendition by appeal or writ of error on the ground that the allegations in the bill do not sustain it.