text:
    William R. Holder v. City of Galena.
    1. Ordinances of city — Merchant’s license. — A city organized under the provisions of the general incorporation law has no power to require merchan s to take out a license or to enact an ordinance containing such a requirement.
    2. Action to recover money paid. — An action on the case by appellant to recover back money paid to a city for a merchant’s license, where it was alleged that the city officials fraudulently represented that an ordinance was in existence requiring such license, etc. Held, that there can be no recovery, as the money was paid without compulsion or duress and not under protest, and appellant was required at his peril to know that there was and could be no such ordinance or license.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.
    Opinion filed April 5, 1886.
    Messrs. Bedford & Wagdin, for appellant.
    Messrs. Hodson & Spensley, for appellee.
   Baker J.

This was an action on the case to recover back moneys paid by William R. Holder to the city of Galena for a merchant’s license.

The substance of the first count of the declaration is that the city of Galena was organized under the general incorporation act, and appellant a merchant within its corporate limits, and that in 1882 the city, by its officers and agents, falsely, fraudulently and deceitfully pretended, held out and represented to him, that a certain ordinance of the city existed in full force and effect, whereby it was provided that all persons engaged in the business of vending merchandise within the corporate limits should obtain a license so to do from the city, and that fora failure to procure such license such merchant should be fined not exceeding §20, and whereby the person so offending would be subject to arrest and imprisonment or the seizure and loss of his property and estate. That by reason of the premises and the false and fraudulent representations thus made appellant, relying on the faith of these representations and not knowing them to be false and fraudulent, and for the purpose of obtaining the supposed license, and escaping the supposed fine and penalties provided by the supposed ordinance, and in consideration thereof, paid the city divers large sums of money, amounting in all to §200. Whereas in truth and in fact there was no such ordinance.

The other counts of .the declaration state in substance that the city had in its possession a certain void and fraudulent device purporting to be a license, and which it, by its officers and agents, represented it was necessary appellant should procure in order to be.permitted to transact his business of merchant within the city, and that he relied on these representa^ tions and believed them to be true ; and that -the city, by and through its officers and agents, did utter, pass, put off and deliver to appellant the supposed license as good, valid, sufficient and necessary, and obtain from him therefor large sums of money, to wit, §200, and whereby said money was entirely lost to him. Some of these counts contain the additional averment that the pretenses and representations were false and fraudulent, and that no such license was necessary, and that there was no such ordinance in existence as was represented in the license.

A demurrer to the declaration and each count thereof was sustained by the court, and appellant electing to stand by his pleading, final judgment was rendered against him.

The city of Galena is organized under the provisions of the general incorporation law, and consequently it has no powen to require merchants to take out a license or to enact an ordinance containing such a requirement. City of Cairo v. Bross, 101 Ill. 175.

It is a settled principle of the law that where a person, in the absence of fraud or mistake, pays money voluntarily and without compulsion or duress of person or goods, and not under protest, he can not afterward recover it back. It is not claimed in the case at bar that the license money was paid un der protest, or that there was any legal duress. The ground taken by appellant is that the action is ex delicto to recover damages for a . tort; that the money was obtained through fraud ; that the false pretense that there was an ordinance of the city requiring appellant to take out a license as a merchant was with reference to a question of fact, or a mixed question of law and fact, and that the rules apply that govern the case of a fraudulent misrepresentation of facts.

' If it be admitted that ordinarily the existence or non-existence of a city ordinance is a question of fact, and that ignorance of the existence of such ordinance will be held to be ignorance of fact, yet it seems to us that, as applied to this case, there lies back of this another matter that should be taken into consideration. The courts do not take jurisdiction of an ordinance, but it must be proven and introduced in evidence. The question of the enactment of an ordinance, or of its publication as required by the organic law of the municipality, or of its identification, are all clearly questions of fact. But here no such questions are involved ; the averment in the declaration is that appellee is organized under the general incorporation law; and so appellant was bound to lmow, as matter of law, that the city of Galena could not pass such an ordinance as is mentioned in the declaration or issue a merchant’s license. Ignorance of the law excuses no one; or, to speak more accurately, every one is conclusively presumed to know the law. Appellant was required, at his peril, to know there was and could be no such ordinance or license. Knowing this, he had ño legal right to rely on the statements of the officers and agents of the city, and as there is no averment he paid the license money under either duress or protest, he must be considered as having paid it voluntarily, and can not recover it back. If he did not wish to pay, he should have contested the claim of the city and made his defense in the courts. As he must be presumed to have known there was no such ordinance, and could be no such license, there necessarily could be no deceit or fraud practiced upon him.

The County of La Salle v. Simmons, 5 Gil. 513, and Harvey et al. v. Town of Olney, 42 Ill. 336, are not analogous cases. In the first mentioned ease the payment was compulsory, and in the other it was made under protest.

The demurrer to the declaration was properly sustained, and the judgment of the court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Laoey, P. J.

license: Public Domain

text:
    Coal Run Coal Co. v. James Coughlin.
    Mining — Keeping gates closed. — Where gates are placed at the top of ■ coal shafts, as provided by statute, it is the duty of the mine owner to use reasonable care to prevent the gates or bars becoming or remaining open: While the circumstances in this case tended to show negligence in not keeping the gate closed, there were not any facts developed from which willful negligence could he imputed, and it was therefore error to submit to the jury the question of willful negligence.
    Appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed April 5, 1886.
    Mr. Walter Reeves and Messrs. Bull, Straws & Buger, for appellant.
    Messrs. Moloney, Stead & Muir, for appellee.
   Laoey, P. J.

This action by appellee was based on Sec. 8 of the statute of 1872, in regard to mines, which provides that the “top of each shaft shall * * * be securely fenced by vertical or flat gates, properly covering and protecting the area of the shaft.” The appellee fell from the surface entrance of the appellant’s coal shaft to the bottom of the mine and received the injuries compensation for which is sought in this action, and recovered §2,000. It appears that the top of the shaft from which the appellee. fell was provided with proper fence and gates in accordance with the law, unless there was a want of a lock or fastening for the gate if one was required, or unless the gate was negligently allowed to remain open by the appellant, upon which we express no opinion. It would be a question of fact for the jury whether the gate, without a lock, would properly protect the area of the shaft, as well as whether the gate was negligently allowed to remain open.

Under the facts of the case the question in regard to the lock being on the gate is of little importance. This action is based on the alleged failure of the appellant to keep the gate in question closed, by reason of which the appellee fell down the shaft and received the injury complained of.

It would have made no difference, as to the happening of this accident, how many locks there had been on the gate, if they had remained unlocked and the gate had been left open and unclosed, as is claimed .was done by the mule drivers coming up out of the shaft, and failing to close it after them. According to the custom in operating the name, these mule drivers came up out of this shaft and out through this gate about six o’clock in the evening.

Just after a portion of them had ascended, and come out this accident occurred. It appears that the custom was for the last one who came out of the gate to shut it down, the gate being raised and lowered by means of cords and weights. This was no doubt a legitimate and proper use of the gate, and the shaft and the accident arose, not on account of the want or insufficiency of a lock, but because the gate was not closed at all, which could have happened as well with as without a lock. Gates like these are made for use, and are only required to be closed when not necessary to be open in and about the working of the mine in like manner as bars and gates in fences inclosing railroad tracks. The law requires railroads to be fenced in like manner as the act in question requires the construction of these gates at the top of a coal shaft, and we suppose the same rule would apply in all cases where there is a failure to^keep gates closed and accidents and damages result in consequence. Railroad companies are not held liable where the gates and bars are left open and remain so without their fault, and damage occurs on account of it. The I. C. R. R. Co. v. Dickerson, 27 Ill. 55. We suppose the same rule would govern in case gates at the top of coal shafts get or remain open without the fault of the mine owner, and dam-' ages are sustained by third parties in consequence. Neither railroad companies nor mine owners are insurers against damages occurring on account of such occurrences where they themselves are not at fault. But each must use reasonable care to prevent the gates or bars becoming or remaining open; and reasonable care is a relative term depending on the surrounding circumstances and the imminency of the danger on account of failure. The greater the damage from failure the greater the care, using the term in an absolute sense, must be used.

What would be ordinary care in one case might not be in another. If the appellant was negligent in allowing the gate in question to remain open, that negligence might be gross, might simply be a want of ordinary care, or it might be slight, or it might have been so gross and reckless as to amount to willful negligence, or it might have been a willful omission to make any attempt to comply with the statute. But merely because the gate or gates happened to be open, willful negligence can not be imputed, or rather willful disobedience of the legislative act in question.

While the circumstances in this case, as shown by the evidence, tended to show negligence, there were no facts developed from which willful negligence could be imputed. It was proper to submit the case to the jury on the question of the want of ordinary care on the part of the appellant in not keep-ins the gate closed, and the exercise of it by appellant to prevent injury ; but we think it was improper, and tended to mislead the jury and prejudice the rights of appellant, to submit the question of willful violation of the law in not keeping the entrance of the shaft fenced and the gate closed, as was done in appellee’s second, third, and fourth instructions.

In the second instruction it was assumed that the appellee stumbled or walked into the shaft,” “ because of the willful negligence of appellant in not beeping the top or entrance of the shaft securely fenced by gates.” The evidence was that the gates were there, but by some mishap had been left open, not willfully, however.

Appellee’s counsel insists that these instructions are justified by the decisions of the Supreme Court in the case of the Litchfield Coal Co. v. Taylor, 81 Ill. 592. It is insisted that “ this case covers the whole ground, and is directly in point,” and is conclusive. He also cites Wesley Coal Co. v. Healer, 84 Ill. 126, to the same point. We have examined the cases cited, and do not think that either of them are authority for the instructions given herein. The first named case was where the company, failed to comply with tliS law in using cages without sufficient covering overhead on the box used for hoisting purposes for the protection of persons lowered or hoisted into the mine,” by means of which a party in attempting to ascend from the mine was killed by the falling of a lump of coal. The other case was similar, where the injury resulted from the want of a second escapement, which the law requires. In both those cases the law had been willfullx2 disregarded, and not even an attempt made to comply with it. In the present case the appellant had attempted to comply with the law in good faith, and had supplied the gates and inclosure. There is no analogy between those cases and the one under consideration. In this case there was not much doubt but that the gate Avas open at the time the appellee Avent into the shaft, though not raised over from two to four feet. For the court to tell the jury in instructions that this fact made it Avillful, as Avas done in the second instruction, was very detrimental to appellant, in that it entirely freed appellee from showing to the jury thatlicAvas, at the time of the accident, in the exercise of ordinary care, and it would also have a tendency to swell ap-~ pellee’s damages. It also took out of the case the right that the appellant had to contest the issue as to whether or not it was negligent in the matter of the gate being open, which it should have had the right to do.

The appellant submits another point which it claims was error, and that is, in the refusal of the court to give its offered instructions 7, 9, 10, 11, and 12, submitting the question to the jury whether or not the gate had not been left open by the co-employes of the appellee, and whether those employed were not the fellow servants, within the meaning of the law, with him. If so, the instruction held .no recovery could be had.

We are of the opinion that the court committed no error in refusing those instructions so offered.

The statute imposes on all coal companies the obligation to erect gates at the top of the shaft, and, of course, to use reasonable care to keep them safely closed at all times when it is not necessary to open them for use, and if they do not do this, and in consequence there is injury to any of their employes, they are held liable under file statute, and the law of fellow servants would not be applicable. This doctrine is clearly held in the case of The Bartlett Coal and Mining Co. v. Roach et al. 68 Ill. 174, and by this court also in the case of appellant herein v. Jones, Adm’r, decided at the present term of court.

It is not necessary to pass on the question of the weight of evidence or other questions raised, although we will say we see no error in the refusal of the appellant’s eighth refused instruction.

It narrows the question of the alleged negligence on appellant’s part into too confined limits. It ignores the issue whether the appellant might hot have prevented the gate being left open, or ascertained that it was open, after being opened, by reasonable care, and have closed it; and the jury should have been allowed to pass upon those questions, as well as the others named.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Lacey, P. J.

text:
    Moline Plow Co. v. Lewis Anderson.
    Master and servant — Instruction—Defective tools. — An instruction that “ the law requires the master to exercise reasonable care in selecting safe tools and appliances which the master is required to furnish for his servants’ use in his employ; and although a tool may be in doubtful safety and although its character may be as well known by the servant as the master, yet if the master, knowing the defect, or if he could have known it by the exercise of due diligence, commands, urges or induces the servant to so use the tool, and the servant is injured by the use of it while exercising due care in his own behalf, then,” etc., held, erroneous in not adding the proviso to the rule, that if the tool or implement was so obviously insufficient that no prudent man would have used it, then there could have been no recovery.
    Appeal from the Circuit Court of Rock Island; the Hon. A. A. Smith, Judge, presiding.
    Opinion filed April 5, 1885.
    Mr. Eugene Lewis and Mr. W. H. Gest, for appellant.
    Mr. Wm. Jackson and Mr. M. M. Sturgeon, for appellee'.
   Lacey, P. J.

This was an action on the case by the appellee against appellant to recover for injury received by the breaking of a stick in moving a grind-stone from the out to the inside of the shop, and the consequent falling of the stone on his leg and injuring him. The verdict and judgment was $2,000.

The appellant was engaged in the manufacturing of plows, and the appellee was, one of its servants or employes engaged in grinding smoothly the face of the mold-board of the plows being manufactured. He, at the time the accident happened from which he suffered the injury, damages for which is sued for here, was associated with a number of other employes, all under the control of Orlof Erickson, their foreman. There was evidence tending to show that a part of the duties of these servants was to remove grind-stones from the outside of the shop to the inside, where the polishing was being done by means of these stones, a distance of about fifty feet, and place them in position as fast as the one in use gave out. The employes were in the habit of 'assisting each other. The stones were large, six feet in diameter and nine inches thick, and weighed about 2,500 pounds, and were rolled in by means of a stick passed through the eye of the stone, which the men took hold of on either side to steady it in rolling. The work of grinding the plows was done for so much for each piece so finished, and no extra pay for bringing in the stones. On this occasion ten of the men, appellee among them, went out to assist one Peterson to bring a stone, which he needed, his having been ground up, and finding the stick of hard wood that they had been accustomed .to use broken, the evidence tends to show that Erickson urged and requested the appellee, with the others, to use a pine stick with four to six knots in it and not strong enough to do the work, after appellee' had called his attention to the fact, claiming it was not strong enough. Accordingly the stick was placed through the eye of the grind-stone, and in attempting to roll the stone into the shop, in the ordinary way, the stick being used to hold up and steady the stone, it broke and the stone fell and broke into four pieces, a piece falling on each leg of the appellee, one being broken by the fall of the stone above the knee, and the other knee being injured. Thus a most serious injury was sustained.

It is claimed by appellee and denied by appellant that Erickson had, by virtue of his employment by the latter, the direction and control of the men in moving the stones as well as inspecting the grinders. It is claimed on the one side and denied on the other that Erickson urged appellee to use the pine stick after having been notified that it was not fit for the purpose.

We think that at least the evidence tends to show the affirmative of both contentions. It was contended before the jury, and is here, that the appellee was guilty of such concurrent and contributory negligence as to bar him from the right to recover, by reason of using the defective stick, even after being urged to do so by Erickson, if he was so urged.

We think it is also fair to say that there was evidence tending to show the degree of negligence so claimed by appellant against the appellee. We are not called upon, nor do we think it proper under the circumstances, to make any further comments upon the weight of evidence as to the points named.

The determination of this last question of fact was of very great importance, and a most vital question.

If the jury had determined this question against appellee the verdict should have been for appellant instead of appellee, and, if in favor of appellee, and the other questions of fact were determined likewise, then the verdict is correct.

It became most important, then, that the jury should have been accurately instructed on this question of contributory negligence. The general rule of law is that where the servant has full knowledge of the unfit character of the tools or implements with which he is performing the work for his master, and continues to remain in such employment and use the tools and implements, and an accident happens on account of such defect or character of the implements, he can not recover the damages of the master. But this rule has its ' exceptions, one of which is that if the master, knowing the character of the tools and implements, or, if negligent in not knowing it, commands or urges the servant to use it, and the servant obeys and accident happens in consequence, then the servant is not barred from recovery on account of his previous knowledge of such defects.

Again, there is an important exception to this rule, and that is, if the tool or implement is so obviously insufficient that no prudent man would have used it, then he is barred, notwithstanding such order or urging. This exception is stated in various language by the courts; one is, if the defect was so great that obviously with the use of the utmost skill and care the danger was imminent, so much so that none but a reckless man would incur it, the employer would not be liable;” again, if a man of common prudence would refuse to use it,” the master would not be liable. Paterson v. P. & C. R. R. Co., 76 Penn. St. 389. We prefer the latter expression as being more simple and easier understood. The law recognizes that under the influence of a direct and personal order or urging of this kind, the master and servant do not stand on an equality. The servant is not left to his cool judgment, but acts under the personal influence of the master, which for many obvious reasons is often great. The law makes allowances for this, and visits the consequence of the negligence on the master. We refer to the following cases bearing more or less on the doctrine: C. R. I. & P. R. R. Co. v. Clark, 11 Bradwell, 104; Penn. Co. v. Lynch, 90 Ill. 333; M. F. Co. v. Abend, 107 Ill. 44; Wood on Master and Servant, p. 760, Sec. 367. In the case of Abend, supra, cases are cited with approval by the court, that announce the doctrine here laid down, though in that case there is a different exception to the general rule, which, however, illustrates the principle here announced, and rests on like grounds.

The only instruction given to the jury upon this question was the third of appellee’s series, which is as follows :

3. “The court further instructs the jury that the law requires the master to exercise reasonable care in selecting safe tools and appliances which the master is required to furnish for his servants’ use in his employ; and although a tool may be in doubtful safety, and although its character may be as well known by the servant as the master, yet if the master, Icno wing the defect, or if he could have known it by the exercise of due diligence, commands, urges or induces the servant to use the tool, and the servant is injured by the use of it while exercising due care in his own behalf, then the master would be liable to the servant for any injury received because of the defective tool or appliance.”

'It will be seen that this instruction does not provide for the limitation contained in the law. It does not add the proviso, after stating the rule, in regard to the servant being urged by the master, that if the tool or implement was so obviously insufficient as that no prudent man would have used it, then there could have been no recovery.

It is insisted that the words after the word tool, “ and the servant is injured by the use of it while exercising due care in his own behalf,” has reference to the care in proceeding to use the tool as well as in the use of it after he has decided to use it. Such, in our opinion, would not be a fair construction of the phrase contained in the .instruction.

By the clause quoted, the care mentioned has reference alone to the manner of using the tool, a stick in this case, and could not have been understood in any other way by the jury.

In view of the evidence in the0 case, and especially that portion of it with reference to the character of this pine stick, this rule of the law should have been plainly submitted to the jury as one of the hypotheses in the case, instead of having it excluded from it as was done by this instruction. The oral modification of an instruction by the court was improper, but the modification might not have been considered of sufficient importance by this court in itself to call for a reversal of the judgment. For the reasons indicated, the judgment of the court below is reversed and the cause remanded.

¡Reversed and remanded.


author: Laoey, J. P.

text:
    Village of Sheridan v. Timothy Hibbard.
    1. Instructions. — Where the court, in telling the jury what should be done in a certain event, used the expression, “ if the jury find the defendant guilty, then they should assess the plaintiff’s damages,” and omitted to say find it guilty under the evidence and instructions of the court, held, that as the court was not instructing the jury how or from what they should find, which had been done in other instructions, there was no error in such omission.
    2. Instruction as to damages. — An instruction which told the jury that appellee, who was suing for an injury caused by a fall on a sidewalk, would be entitled to recover for pain and anguish, enumerating the different elements of damages, not however, any of an exemplary nature, if, etc., instead of saying the jury may give such damages, was not erroneous.

      3. Defective sidewalks — Notice—Damages.—In case of a suit for an injury by a fall on a defective sidewalk an instruction which stated in general terms the duty of a city to use ordinary care and diligence in the erection and maintenance of its sidewalks, but which omitted the circumstance of notice to the city of a defective sidewalk, is not erroneous where the question of notice was brought out in other instructions.
    4. Municipal corporations — Execution.—No execution can issue against a municipal corporation.
    Appeal from the Circuit Court of La Salle county ; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed April 5, 1886.
    Mr. D. B. Snow and Messrs. Mato & Widmer, for appellant.
    Messrs. Blake & Moloney, for appellee.
   Laoey, J. P.

This was an action brought Dec. 4, 1883, by appellee against appellant, to recover damages alleged to have been sustained by reason of injuries in falling upon a sidewalk within the corporation limits of appellant. The allegations are that appellant allowed the sidewalk to remain out of repair, by reason whereof the appellee, on Aug. 15, 1883, fell and was injured. The recovery below was for the sum of $3,500.

The grounds relied on by the appellant for reversal are: first, that the verdict is clearly against the weight of the evidence ; second, the court, during the course of the trial, erred in stating to the jury a conclusion deduced, as was claimed, from the evidence ; third, the court erred in giving the appellee’s fifth and second instructions; fourth, the court erred in awarding an execution against appellant. Those comprise the sum of the objections urged, and we will notice them, but not in the order in which they are presented.

And first, is the verdict manifestly against the weight of the evidence. The points of attack, as to the insufficiency of the evidence, are mainly directed to three questions: first, did the appellant use due diligence to keep the sidewalk at the place where the accident occurred in repair; second, was the sidewalk out of repair at that point; third, was the plaintiff negligent as to the greater portion of his damages in not obeying the directions of his physician in not lying in bed three or four mo nths, till his hip recovered. It is evident that no objection can be reasonably urged against the sufficiency of appellee’s injury, as it appeared at the trial, to sustain the verdict. It was of the most serious nature, though at first and for some time it did not appear very serious. It appeared to be a mere bruise over the hip and a sprain of the hip. It gave some pain to appellee, though it was thought by both appellee and his physician that there would be a speedy, or at least an ultimate recovery. Tot in the course of time the injury or wound developed into coaglia or hip joint disease. The hip bone was in a chronic state of inflammation. The hip, after the injury, seemed more or less paralyzed — the sciatic nerve was injured, and at the trial there was atrophy of the muscles on the back part of the hip, with less ability to abduct and deduct. The appellee was likely always to be in a state of intermittent pain. There is either a shortening of the neck of the femur or wasting of the head of the bone, the injured leg at the time o* .the trial being three-fourths of an inch shorter than the other. The symptoms also indicate chronic inflammation of the sheath of the nerves. The physicians think the injury permanent, though some of them think there is some slight chance to doubt on that point. The appellee was fifty-eight years old, and on account of his injuries the doctors think he will never be able to do any more manual labor hereafter. His condition is in the highest degree painful and pitiable. The point made that the appellee was negligent and brought this terrible condition on himself, we think, can not be maintained. While some of the physicians seem to think that there would have been a permanent cure if the appellee had remained in bed three or four months, yet the same doctors say that he could not have done so without impairment of his health; that he could not have stood it; that it would have killed him to have been confined six months, so we think that as to these points no just objection can be raised against the verdict of the jury. Was the sidewalk out of repair at the point where the appellant received the fall and injury ? It ap] ears from the evidence of the appellee, Jas. E. Cameron, Israel Cameron, and Benton Mason, that on the night of the 15th day of August, 1883, about eight o’clock in the evening, it being dark, the appellee and the persons above named were proceeding southwardly along Robinson street, on the east side of the street, Jas. E. Cameron and Mason being in front, walking side by side, and Israel Cameron and appellee just behind, also walking side by side on the same walk, the latter being on the west side of the walk, when within thirty-five or forty feet of the southeast corner of the block Israel Cameron stepped on a board seven to eight inches wide at one end and two inches wide at the other, the board tipped up, and appellee caught his toe under it, when it threw him against Cameron, from whom he rebounded and went off to the right, and in going over he caught his foot in the crevice, and that wras what caused the injury. The three witnesses above named all testify substantially the same as to the manner, place, and circumstances of the accidentas above stated. The walk was three feet wide, laid on two stringers' — some hoards were wide and some narrow — and one inch thick. The appellee had not previously passed over this walk for two months. All agree that this walk had first been laid down on State street in 1879, and after remaining one year was, in 1880, taken up and removed and laid down on Robinson street.

It appeal's from the evidence, and is admitted by appellee, that he pointed out to a committee of the board of trustees a different place, they getting him to go with them and show them the pflace he was hurt at, he having filed a claim of §100 against it for damages resulting from this injury. This place wras eighty feet north of the south end of the walk, and it was a different kind of hoard than the diagonal one described as the one stepped on by Israel Cameron. But appellee, while admitting this, says that he misled them and showed them the wrong place, out of fear that they were trying to set up some trick on him.

We are inclined to think that the jury were justified in finding the true place to be the one testified to by appellee and three other witnesses, who were present and eye-witnesses. We think that while the question might be nearly equally balanced in regard to the question whether the sidewalk was out of repair at the time, or whether it vyas in general in good repair, was a question which the jury might determine either way without the court having the right to interfere; especially so since the witnesses, appellee himself, Benton Mason, Marion Barber, Charles Biskendall and David Cothran all testify to facts, which, if true, would show this walk along its whole length, as well as at the place in question, to have been badly out of repair, and that it had been so for a great length of time. It is true that appellant had an equal or greater number to show that it was in good repair, a number of them not having so good an opportunity to know, however. The jury had the right to believe the appellee’s witnesses, and especially since the walk had been put down some four years, and moved once. We think the jury was justified in finding for appellee on this issue.

The next question is, did the appellant use diligence in keeping the sidewalk in repair; and this depends to some extent oh the question of notice of the board in question having been split and loose, or upon the fact, if it be a fact, of its having been so long loose and split that with due diligence the defect could have been discovered and the walk repaired. On this point the appellee showed by Benton Mason that on the 11th August, four days prior to the accident, this same board was loose. He testifies that he was going down town and his toe caught on it, and it came near throwing him down, when he stopped, picked it up, and threw it off the walk. The board at the time was lying flat down. Marion Barber testified that he had seen holes in it the fore part of August and July, and saw planks off not more than thirty feet from the end of the walk, not more than two places at a time. He hardly thought it was repaired much till after appellee was hurt. It was fixed up right away afterward. They fixed two or.three places not over forty feet from the end.

Charles Biskendall swears that he noticed holes in the walk just before appellee was hurt; could not tell exactly the place; it was on the south end of the walk, probably within forty or fifty fee ,of the south end. There was a hole in it— loose board.

David Cothran testified: For three or four weeks prior to the time the appellee was hurt he walked over the walk two or three times per week, or maybe more. Generally when lie went over it there were loose, split, broken plank in it from May up to that time; the sidewalk was then out of repair, though after appellee was hurt new boards were put in, none before. He believed that thirty to fifty feet of south end of the walk there were broken and split boards in it. He had seen from three to four holes in the sidewalk there at the time; boards broken. There was a hole thirty to forty feet from the south end; board not nailed down. The sidewalk has never been good since he knew it.

Thus it will be seen if the jury believed this testimony they must have found that this plank, when the injury occurred, had been loose for at least four days and may be longer, before the accident, and had not been repaired. It also appears, according to a number of witnesses, that the sidewalk was generally dilapidated and out of repair, and that it was not being looked after with much diligence by the village authorities. It was also in proof that the street commissioner who had the care and supervision of the sidewalks was engaged that summer in raising a crop of corn a mile or so from the village, and only examined the sidewalks once in a week or ten days. If this sidewalk was in the bad condition some of the witnesses testified to, that kind of examination, as the jury might well determine, was not sufficient. It is true there was contradictory evidence. Bat we think that there was evidence from which the jury might determine that the sidewalk was out of repair at the place of the injury sufficient length of time for the village authorities, with the use of ordinary care, to have discovered and have repaired it; and a!so that the authorities- having the sidewalk in charge did not use due care to keep it in repair. This assignment of error we do not think well taken. We now pass on to the consideration of the next point — did the court err in giving the fifth and second instructions for the appellee. The first ohjection to the fifth instruction is, that in using this expression, “ If the jury find the defendant guilty, then they should assess the plaintiffs damages,” the court" omitted to say “find them guilty under the evidence and instructions of the court.” We see no force in this objection. The court was telling the jury what should be done in a certain event, not instructing them how or from what they should find, and it was not necessary to tell them anything about how or from what they should find ; that was done in the other instructions.

It is also objected that the instruction tells the jury appellee would be entitled to recover for pain and anguisli, etc., enumerating the different elements of damages, not, however, any of an exemplary nature, instead of saying the jury may give such damages.

We see no grounds of complaint to the instruction for such reason. The amount of such damages is a matter for the jury to determine, and the instruction did not limit the jury in that particular. The appellee was entitled to these damages if the jury should find that he had been damaged in those particulars, as the jury were told. These the law regards as actual damages in contradistinction from exemplary damages, the giving of which, in any case, is wholly a matter of discretion with the jury, and it would be error to require the jury by instructions to give exemplary damages, but not so as to actual damages.

The case of C. & N. W. Ry. Co. v. Chisholm, cited, was a case where certain elements of the damages were exemplary. The feelings of shame or humiliation endured by plaintiff in consequence of being thrust off the car, damages for which the jury were required to give a verdict, was wholly exemplary, and of course not the duty of the jury to give it, but they m ght do so, if in their discretion they thought best. In the case of The City of Peoria v. Simpson, 110 Ill. 294, the court in its opinion seems to base its objection to the instruction on the ground that it was misleading, in that it was an invitation, and in fact an intimation by the court to the jury, that it was their duty to fix the “damages at the highest possible amount the evidence would justify.” Of course if such were the meaning of the instruction, and the court say it was, it would he erroneous, hut not for the reason claimed by appellant. We do not understand that the Supreme Court has ever placed damages arising from “'pain and anguish which the plaintiff has or will suffer in consequence of the injury, damages to his person, permanent or otherwise, occasioned by the injury,” and damages of like nature, in the category of exemplary damages to be given by way of punishment. We understand these to be compensatory damages to which the plaintiff is entitled as a matter of law, the amount being in the sound discretion of the jury. The other objections to this instruction were equally untenable. The appellant’s instructions were full, and taking all the instructions together we can not see how this instruction could mislead. The point made that the instruction should have been qualified so that the jury should have been given to understand that if any part of the injury resulted to appellee on account of his own misconduct in not following the advice of his physicians in regard to keeping in bed for three to four months, he could not recover for such injury. The instruction logically does exclude such damages, as it only directs the jury to give such damages as resulted from the injury, not his own misconduct. If the appellant had desired the jury more specifically instructed on that point it should have asked an instruction covering the ground, which no doubt would have been given ; failing to do so, it should not complain.

The second instruction objected to is as follows, to wit:

2. “ The jury are instructed that the defendant in this case is bound by law to use ordinary, reasonable care and diligence in the erection and maintenance of its sidewalks, so that said sidewalks may with reasonable safety be traveled over by persons in the exercise of ordinary care, either by day or by night; and if the jury believe from the evidence that the defendant was negligent in the performance of the duty so imposed upon it by law, and that by reason of such negligence in that regard the plaintiff sustained an injury, and that the plaintiff at the time when he was so injured was in the exercise of ordinary care and caution, then, and in such case, the law makes the defendant liable to the plaintiff for the injuries so received.”

The objection made to this instruction is, that it wholly ignores the circumstance of notice ” to the appellant that the sidewalk was out of repair. We do not think this objection is tenable. The instruction simply states what the general duty of the appellant was : That it was its duty to use ordinary care and diligence in the erection and maintenance of its sidewalks.

This duty includes discovering the defects in a sidewa'k after they exist, and using diligence to repair them. But it does not require the village to repair unless it could by due diligence have discovered the defect, or unless it knew of and could by use of care have repaired it.

The instruction is true as a matter of law. It is the duty of a city or village to use due diligence in order to keep its sidewalks in repair. This is good as a general proposition of law and could not have misled the jury on the circumstance of notice, for it did not tell the jury notice was required, either constructive or real, in order to charge the city with a want of diligence, but to put it beyond question as to the matter of notice. The fourth instruction given for appellee tells the jury explicitly what would be notice; that is, that if the sidewalk should have been out of repair a sufficient length of time that the appellant, in the exercise of reasonable care and prudence, ought to have known the fact, then, that would be notice. We can not see how the jury could have been misled by the second instruction, charging the jury that appellant must use due diligence, and find no error in giving it.

The remark of the court on the testimony of one of the physicians, while not called for and out of order, is not of a character to damage appellant. There was no reason to doubt from the evidence that the bone wasted away. One leg was three fourths of an inch shorter than the other, shown clearly as we think, which proved that point beyond question; so that the assertion of the judge that it wasted away, or that it fol. lowed from the evidence that it did, could not mislead the jury. If there could be any conflict in the evidence as to whether the leg was shorter or not, which taking ail the evidence together we do not think there was, the remarks of the judge were only based on the supposition that such was the ease and was only a conditional opinion.

The comd erred in awarding an execution as no execution can issue against a municipal corporation ; and for this reason the judgment will be affirmed as to all the judgment except the order awarding execution, and reversed as to that, and the cause remanded, so the judgment may he enforced as modified. Costs to he taxed to appellee.

Affirmed in part and reversed in part, and remanded.


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    Levi Bressler et al. v. George W. Harris et al.
    1. Rate of interest. — In this State, where a note draws a" certain rate of interest from date, that same rate continues until paid.
    2. Usury — Forfeiture of interest. — Where a suit is brought upon a promissory note for money loaned, in the making of which the payee contracted to receive more than legal interest, and the defense of usury is successfully interposed, all interest in such case should be forfeited that accrued subsequently to the time the note became due, as well as the usury first taken, which ran to the date of the note.
    3. Renewal of note — Different payee — Purging note of usury. — The court is of opinion that the transaction in this case was not purged of usury that existed in the original transaction, but as far as the amount due to Martin upon the giving of the new note, January 22, 1872, after deducting the prior usury, is concerned, that sum should be regarded as having been purged of usury, so that it would draw interest from that date at ten per cent, as specified in the note.
    Appeal from the Circuit Court of Whiteside county; the Hon. William Brown, Judge, presiding.
    Opinion filed April 5, 1886.
    Messrs. J. & T. Dinsmore, for appellants ;
    cited Stockham v. Munson, 28 Ill. 51; Hefner v. Vandolah, 62 Ill. 483; Reinback v. Crabtree, 77 Ill. 186; Saylor v. Daniels, 37 Ill. 331; Booker v. Anderson, 35 Ill. 66.

      Messrs. Manas: an & Wakd, for appePees ;
    that the only mode of making the defense of usury at law is in a suit upon a usurious contract, cited Hudden v. Innis, 24 Ill. 385; Perkins v. Conant, 29 Ill. 185; Maury v. Stockton, 34 Ill. 306; Mitchell v. Lyman, 77 Ill. 525; Cuthbert v. Hall, 8 Tenn. R. 390; Jackson v. Henry, 10 Johns. 195.
    As to forfeiture of interest: Carter v. Caruse, 5 Supreme Court Rep., Vol. 7, Jan. 10, 1882, p. 282; First Nat. Bk. v. Davis, 108 Ill. 633.
   Lacey, P. J.

This was a suit by appellees against appellants based on three promissory notes. The first plea of general issue having been withdrawn, it left only the plea of tender as of $66.66 and costs, Feb. 27, 1885. The third plea was a plea of partial failure and usury. The basis of the suit was the notes mentioned. First, dated June 22, 1872, due in one year, for $241.67, with interest at the rate of ten per cent, per annum, payable to James S. Martin. The second and third notes are of the same tenor and date, save one is due in two and one in three years from date. The notes were indorsed by Jas. S. Martin, who had no personal interest in them, but kept them nine years and then indorsed them. The notes were given to renew another note given by appellants to Henry & Co., which, with the interest, made the sum of the notes in suit. Martin had the old note and made the settlement, at the time being informed of the claim of Levi Bressler that he had a claim against the note, and that there was usury in it. Martin agreed with said Bressler that if Hoover and appellants could not settle the note, he would give these notes back and let George Hoover settle his own business. Hpon these conditions appellants signed them ; Hapgood and Henry indorsed the note spoken of to George Hoover after it became due.

The note given by appellants to Henry & Co. was dated July 1, 1858, due sixty days after date, with ten per cent, interest after due, and was for $427.18. Hapgood was a member of the firm of Henry &. Co. There was usury contained in the original note given to Henry & Co. at the rate of two per cent, per month, computed from the date of the note for sixty days, the time the note was by its terms to run, as testified to by Hapgood and Henry, or three per cent., as testified to by Levi Bressler. This sum added to the sum borrowed and the note given for the entire amount.

The court below found there was usury in the face of the notes, and allowed the claim of usury set up by appellants, by taking out of the face of the note the usury added at three per cent, per month, and then allowed the rate of six per cent, interest on the balance from and after sixty days from the date of the Henry & Co. note or from the time that note became due, allowing all the credits of sums paid at different times by the appellants. This summed up to the amount of $642, for which the court rendered judgment for the appellees. The cause was tried by the court, a jury being waived, and held the foliow'ng proposition to be the law offered by the appellees, viz:

“ Under the present statute of the State of Blinois relative to usurious notes, where a suit is brought upon a promissory note for money loaned, in the making of which (he payee contracted to receive more than legal interest, and the defense of usury is successfully interposed, the plaintiff is entitled to recover the principal sum loaned (less the interest contracted for the period the note had to run and payments of principal, if any,) and six per cent, interest from the maturity of such note until the date of the rendition of such judgment,” and refused propositions of law offered by appellants to the effect that all interest in such case should be forfeited that accrued subsequently to the time the note became due, as well as the usury first taken, which ran to the date of the note.

To this action of the court the appellant excepted and assigns it here for error. We are satisfied that the transaction was not purged of usury that existed in the original transaction, but as far as the amount due to Martin upon the giving of the new notes, Jan. 22, 1872, after deducting the prior usury is concerned, that sum, at all events, being the sum of $58, should be regarded as having been purged of usury, so that it would draw interest from that date at the rate of ten per cent, as specified in the note.” Mitchell v. Lyman, 77 Ill. 525. In that case there was an additional maker on the renewed note as security. In this there is a different payee, who indorses it to appellees, and we must regard the usury purged out of the transaction at that time on the amount then actually due. It is also stated in that case by the court, that “ there are many authorities to the point that although a contract may be in its inception usurious, a subsequent agreement to free it from the illegal incident shall make it good,” citing numsrous authorities. The main question in the case is, did the court err in holding the law to be that interest at the rate of six per cent., after the first note become due, could be allowed?

It is insisted by the appellee that according to the decision in the First National Bank of Galesburg v. Davis et al., 108 Ill. 633, this interest should be allowed, and the court below adopted that view. We are of the opinion that, although that decision announced that rule, and that suit was apparently decided on that basis, that case is not to be considered as authority to be followed in the future. The rule so apparently announced in that case should not be regarded as authority for the reason that less than a majority of the court sanctioned iff

Only three of the judges apparently conceded with the views announced by Judge Dickey, who wrote the main opinion, to wit: Judge Dickey, Judges Mulkey and Scholfield. Judges Scott and Walker dissented unqualifiedly to the whole opinion, and Judges Sheldon and Craig dissented on the main point of the decision. That is, according to their opinion, there was no usury at all, and the First National Bank ivas entitled to even much more than was awarded it by Judge Dickey’s opinion. In their judgment, instead of being entitled to only six per cent, interest after the note ivas due, and, none up to the time it was due, it was entitled to all the note called for according to its terms, without any forfeiture. As only three of the judges, and possibly not three, were willing to give six per cent., a portion of what they claimed was due the bank, they. were willing to accept that much as being due the bank, and as doing at least partial justice, according to their view, without saying anything about the reasons that Judge Dickey gave for allowing it. In their dissenting opinion it will be seen they do not commit themselves concerning the peculiar view taken of the question by Judge Dickey. We are led more strongly to this conclusion as far as Judges ■ Sheldon and Craig are concerned, for the reason that in the case of Mitchell v. Lyman et al., 77 Ill. 525, determined in 1875, the court, composed of Judges Scott, Breese, McAllister, Scholfield, Walker, Sheldon and Craig, took directly the opposite view of the question, and decided, in accord with all its decisions since the usury law of Jan. 31, 1857, that where usury existed in the inception of the contract all the interest was forfeited; that accruing after as well as before the maturity of the note: Judge Sheldon wrote the opinion in that case, and Judge Craig, as a member of the court, approved of it.

There were two notes given in that case, as in this — a first and second one." The second for §3,000, dated Dec. 20, 1869, due on or before Dec. 20,1870, with interest at ten per cent., payable annually. After this note, various credits were made on the note for payments, amounting in all to §1,800. Prior to that time, to wit, April 1, 1868, three of the defendants -borrowed of the plaintiff, Mitchell, the sum of §3,000, for one year, at fifteen per cent, interest, giving their promissory note, due in one year from date, with ten per cent, interest per annum. The extra five per cent, interest was retained out of the sum, and there was actually paid over only $2,850. This was a clear case of usury. The first mentioned note was given in settlement, and Judge Sheldon decided the new note was so far tainted with usury that the usury taken in the first 'note, and all interest up to the time the new note was given should be deducted from the principal of the new note; but on account of the settlement made, and a new party having been introduced, the actual sum due at the time the new note was given making a part of the new note, should draw interest at the rate specified in it. The new note was to that extent purged of usury. The judge deciding used this language: “We are of the opinion that it (usury) should have the effect to the extent that there should be a deduction from the second note of all payments of interest made before it was entered into, upon the first note. The first note being usurious, no interest whatever was recoverable upon it.”

The first note, it will be seen, had been past due three months and twenty days before the second one was entered into, and for that time, according to First National Bank v. Duvis, the sum actually loaned should have drawn six per cent, interest. But it was not allowed. The case is exactly in point. Another case decided by the Supreme Court composed of the same judges, at its January term, 1875,. was Driscoll et al. v. Tannock et al., 76 Ill. 154. It was a bill in equity filed by plaintiffs in error to 'obtain a sale of real estate conveyed to a trustee to secure a note given to Lannack by Driscoll for §455, upon which had been paid $140 ; it was ¡3 ay able eighteen months after date, with ten per cent, interest until clue, and thirty-six per cent, per annum as damages after due. The answer alleged that the note was given for §350, and that §105 was added in the note for usurious interest. Complainant filed a replication, admitting that the note was given for §350, but denying the payment of the §140, and after hearing the evidence the court rendered a decree for complainant for §375 and costs. Judge Walker, who wrote the opinion of the court, said: “ The third section of the act of 1857 (Sess. Law, page 45) provides that ‘ if any person or corporation shall contract to receive a greater rate of interest than ten per cent. upon any contract, written or verbal, such person or corporation shall forfeit the whole interest and shall be entitled only to recover the principal due to such person or corporation.’ Now, from the answer and replication, it stands admitted that the contract in this case was for more than ten per cent, interest, and brings the case freely within the provisions of the statute, and the decree allowing §125 interest is manifestly erroneous. It is palpably in violation of the clear and unmistakable provisions of the statute.”

Then, by way of emphasis, the court, speaking through Judge Walker, add: “ We are at a loss to comprehend how a decree could have been rendered in the face of such an enactment.” * * * “ It was for the complainant to make out his case. He, in doing’so, admitted that he had an indebtedness of but $3 )0, and that the balance of the claim was for interest, and that it was usurious. That showing would entitle him only to the balance of ihe prineip'tl, after deducting the payments he admits to have been made. Under the interest laws that wouM be all he could recover.”

This note must have been past due at the time of hearing, yet the court decides the principal was all that could be recovered after deducting payments, whether on interest or otherwise.

This has been the rule for nearly twenty-five years, and never, till the case of the First Nat’l Bank v. Davis, supra, has the court intimated that six per cent, interest after the note was due could be recovered where there was usury in the inception of the contract.

Among the numerous cases decided may be found the following. In Stockham v. Munson, 28 Ill. 51, the court say “ The act of 1857 declares a forfeiture of the whole interest.” The note in this case had been due two years before trial, and no mention whatever was made regarding the allowance of six per cent, after maturity. It was not allowed. In Saylor v. Daniels, 37 Ill. 331, Judge Lawrence, in deciding, dec1 ares that payment made of usurious interest should be applied on the principal, and made no intimation that six per cent, could be collected after the note became due. In this case the n ;te had been renewed, and was past due. In Booker v. Anderson, 35 Ill. 66, the court made this order: It is ordered by the court that the court (beTow) ascertain the sum due on the $2,200 note, after deducting the usury and all payments of interests, whether for usury or otherwise, and the rent paid for the use of the house and lots, likewise the $1,200 for which the land was sold, and decree the payment of the balance to the appellant.” By this order all claim for six per cent, after the note became due, and it was long past due, was cut out.

The case of Hefner v. David Vandolah, 62 Ill. 483, was based on a promissory note which was made drawing twelve per cent, interest on its face and was due in six months, and, as was inevitable, was past due when judgment was rendered. The court say in regard to the questions of usury, by Sheldon, delivering the opinion, “As the note upon its face bore a greater rate of interest than ten per cent., the whole of the interest was forfeited, under the statute, and only the principal sum due was recoverable;” six per cent, after due was not allowed.

Other cases could be ' cited, and nothing adversely was ever intimated until the case reported in 108 Ill. above, by Judge Dickey, under circumstances in which, wb have shown, the majority of the court did not concur. It was not intimated in Judge Dickey’s opinion that the rule had been changed, neither were the cases referred, to herein cited and explained or overruled, or even mentioned, which, if a majority of the court had concurred with him in his views on the usury laws, certainly would have been done. Judge Dickey quotes Sec. 2 of the Interest Act, which provides, “ Creditors shall be allowed to receive at the rate of six per cent, per annum for all moneys after they become due on any bond, bill, promissory note or other instrument in writing.” This is claimed as authority for charging six per cent, on a note in which there was usury after due. This same statute has been in force during all the time the former decisions were made, and this is the first time that any of the judges, prior to Judge Dickey, ever thought of applying it in this way. It was not supposed heretofore to apply to contracts where usury existed. It has always been held in this State, however different other States, or the United States court may hold, that where a note draws a certain rate of interest from date, that same rate continues under the contract until paid. It is the same as though the note read “ with such interest till paid.” It has been regarded as a contract for interest till paid. The note might, and notes often do, provide for interest till paid. Would not this be a part of the interest contracted for? And in case of usury wpuld it not all be forfeited under the statute as interust reserved ? We can not regard the case of the First National Bank v. Davis, supra, as being the decision of the court, and therefore we think it is not authority. We therefore regard the proper judgment in this case to be the $58.11 from Jan’y 22, 1872, at ten per cent, as what should be the true amount of the judgment, or $140.57 up to Apr. 2, 1886. The judgment is reversed, and it is ordered that judgment be entered in this court in favor of appellees against appellants for the sum of $140.57 and the costs of this court to be charged to appellees and the costs of the court below against appellants.

Reversed.


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    Albert M. Pool v. John Roberts.
    Guaranty — Notice.—Where there is an absolute, unconditional agreement by the guarantor that the note shall be paid, at maturity, upon the failure of the maker to pay it at maturity the agreement is broken and the - guarantor may be sued at once on his guaranty, without first being notified of non-payment.
    Appeal from the Circuit Court of Marshall county; the Hon. R. M. Laws, Judge, presiding.
    Opinion filed April 5, 1886.
    Mr. E. J. Riley, and Messrs. Bables & Bables, for appellant ;
    that the guarantor should receive notice of the default unless the maker is insolvent, cited 2 McLean’s R., 21; Story on Promissory Rotes, § 460; President, etc., v. Haynes, 8 Pick. 423; Oxford Bk. v. Hayes, 8 Pick. 427.
    Mr. P. S. Perley, for appellee ;
    that notice was not necessary, cited Brown v. Curtis, 2 N. Y. Court of Appeals, 225; Dickerson v. Derrickson, 39 Ill. 574; Parkhurst v. Vail, 73 Ill. 343; Gage v. Mechanics’ Nat. Bk., 79 Ill. 62; Stowell v. Raymond, 83 Ill. 120.
   Lacey, P. J.

This was a suit by the appellee against appellant, based on the guaranty by the appellant of the payment at maturity of a certain promissory note for the sum of $500 given by J. L. Jones to appellant, and dated Peb. 13, 1882, due in one year from date.

The first and second pleas were pleas of payment upon which issue was joined. The appellant then pleaded the 3d, 4th, 5th, 6th and 7th pleas as amended, which were severally demurred to by appellee. The court sustained the demurrer, and the appellant abided his pleas. The parties then waived a jury and the cause was tried by the court, and finding in favor of appellee, and judgment against appellant for the sum of §592.22, the amount of the note and unpaid interest. The action of the court in sustaining the demurrer to the several pleas is assigned for error.

We do not think the assignment of error is well taken as to the action of the court in sustaining the demurrer to either plea.

By the 3d, 4th and 5th pleas the appellant attempted to set up as a defense to the collection of the note that the appellee, the indorsee of the note, to whom it was guaranteed by appellant, in addition to the indorsement, for valuable consideration passing between appellee and the maker without the consent of appellant, agreed with the maker to extend the time of its payment.

These pleas if properly pleaded would undoubtedly have been good, but in this we think each entirely failed. Neither of the several pleas set out the contract so that the court could see that there was any consideration for the agreement to extend the time of payment. Only by inference could it be held that there was any averment of consideration, and in all cases where a plea or other pleading is ambiguous or of doubtful meaning, courts construe the pleading most strongly against the pleader.

The third plea fails to aver that the one year’s interest, the payment of which is relied upon as a consideration to support the promise, was paid in advance, or in fact paid at all, except by the way of recital, using the word “ paying.” If this interest was paid, and it was the year’s interest past due, then there was no consideration; besides, it is not good plead- ' ing to aver a fact by way of recital merely.

The fourth plea fails to aver that the relied upon as consideration for the extension of time was in fact paid by the maker to the appellant for and in consideration of such extension. Therefore the agreement to extend was bad for want of consideration. The fifth plea also fails to charge that the Sfl was paid or agreed to be paid as a consideration for extension, and it also fails to aver that Jones, the maker, agreed to beep the money called for by the note. To make a promise for a promise a good consideration, the maker must agree to keep the money for the length of time to which the note is extended, and in consideration of such promise the payee or indorsee must agree to extend the time as agreed between them. This plea makes no such averment. Each of these pleas were bad and obnoxious to general demurrer. The sixth and seventh pleas set up that at the maturity of the note the appellee failed to notify the appellant of the non payment of the note or to demand payment of the maker; that the maker was good and solvent at its maturity, and so continued for considerable time thereafter, but afterward became insolvent, by means whereof the appellant failed to secure himself as he might have done, and the appellee failed to secure his pay, which he might have done if he had demanded the money, etc. These pleas were bad, and the demurrer properly sustained to them. The agreement of guaranty was primary, and not a secondary one. It was also based on an independent consideration from the original consideration of the note, or at least on a valuable consideration. Appellant undertook to see that the note should be paid at maturity. There was no such condition in this agreement as that the appellee should demand payment of the maker or make any effort to collect it, much less .in case of failure to do so and loss, occurred on account of it, that the appellant should be released.

It was an absolute unconditional agreement that the note should be paid at maturity. Upon the failure of the maker to pay it at maturity, the appellant’s agreement was broken.. He might be sued at once on his'guaranty without first being n jtitled of non-payment. It is true that some courts have held differently, notably in Massachusetts.' The President, etc., v. Haynes, 8 Pick. 423. But the doctrine announced in this case was referred to and disapproved in Brown v. Curtis, N. Y. Rep. 225 (Court of Appeals.) Also see Allen v. Rightmere, 20 Johns. 365.

The courts in Maine and Pennsylvania agree with those of Massachusetts; the authorities are conflicting, but the Supreme Court of this State is in accord with the Hew York courts and others which hold like it and are conclusive. Harker v. Goodwin et al., 86 Ill. 60; Valtz v. Harris, 40 Ill. 159; Stowell v. Raymond, 83 Ill. 120; Parkhurst v. Vail, 73 Ill. 343; Gage v. Merch. Nat. Bank of Chicago, 79 Ill. 62; Dickerson v. Derrickson, 39 Ill. 574; Warden v. Slater, 90 Ill. 160.

It is claimed by appellant’s counsel that the exact point has not been decided by the Supreme Court of this State. We think in this he is in error, so far as the principle is concerned. In Stowell v. Raymond, 83 Ill., supra, the court, by Judge Breese, who wrote the opinion, uses this language: “Ho legal proceedings are necessary to fix the liability of a guarantor, or to show the insolvency of the maker, or to prove demand or notice of non-payment, or to use diligence against the maker,” quoting Heaton v. Hulbert, 3 Scam. 489; Rich v. Hathaway, 18 Ill. 548; Parkhurst v. Vail, supra. Why is it not necessary to show demand and notice of non-payment? Simply because the law does not require it. If the holder of a guaranteed note is under no legal obligation to demand payment of the maker, or notify the guarantor of non-payment, in order to entitle him to payment or to bring suit, why is it that he should suffer loss on account of the failure on his part to do a thing that he was under no legal obligation to do ? Heither is he bound to use diligence, the court say. The failure to use diligence in not notifying appellant of non-payment, and in not demanding payment of the maker, and in not getting the note probated against the estate of J. L. Jones, deceased, are averred as grounds for defense to the suit on the guaranty. We hold that appellee was under no legal obligation to use any diligence or to demand payment or notify appellant of non-payment; and not being required to do these things by law, the loss from failure can not be visited on him. There being no error in the proceedings, the judgment is affirmed.

Affirmed.


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    Frank Castle et al. v. Catherine Fogerty, by, etc.
    Dram Shop Act — Reversioner’s interest. — The court is of opinion that it was the intention of the legislature, in the passage of sections 9 and 10 of the Dram Shop Act, to deal only with landlords and their property, and those having a rentable interest in buildings and premises that they could control at the time, and that it was not intended to include those who only have reversionary and contingent interests, and who are not in any way responsible for the renting, control or disposition of the property.
    Appeal from the Circuit Court of Knox county; the Hon, A. A. Smith, Judge, presiding.
    Opinion filed April 5, 1886.
    Mr. R. C. Hunt and Mr. George W. Thompson, for appellants.
    Mr. E. A. Willoughby and Mr. F. S. Murphy, for appellee.
   Lacey, P. J.

The appellee brought her suit in equity against the appellants, Frank Castle, Frederick Castle, Asaliel A. Castle, Etta Sullivan andida Egan, seeking to subject their reversionary interest in two lots in the city of Galesburg to the payment of a certain judgment of $400 recovered by .appellee against A. A. Castle, March 22, 1884, in the Circuit Court in Knox county, in an action on the case for selling intoxicating liquor to her father, John Fogerty,which caused his intoxication, by reason of which he came to his death, whereby she was injured in her means of support. The intoxicating liquor was sold on these lots by A. A. Castle, he at the time having a life interest in them as tenant by curtesy of his late wife, Rachel Castle, deceased, the appellants being the heirs at law of the deceased Rachel, who died seized of the lots subject to the curtesy rights of A. A. Castle, several years before the selling of the intoxicating liquor to Rogerty. It is alleged in the bill that a long time prior to the said sale of liquor to Rogerty the appellants and each of them had leased and knowingly permitted said premises to be used and occupied by the said A. A. Castle for the sale of intoxicating liquors, under which leasing and permission the said A. A. Castle was using and occupying said premises at the time when he sold to said John Rogerty the intoxicating liquors mentioned. The bill was dismissed as to A. A. Castle, and he was not a party to it, he having a homestead interest in the lots which could not be touched by this proceeding; only the reversionary interests of appellants were sought to be reached and subjected to sale.

The court below granted the relief and rendered a decree ordering the reversionary interests of appellants to be sold to satisfy the said judgment, from which decree this appeal is taken.

It appears from the evidence that Castle used the premises without asking the permission of the appellants, claiming his right to do so under his estate. The appellants, however, all being of majority except Asahel, who was a minor at the time of the selling of the intoxicating liquor complained of, did not object to the business of selling intoxicating liquors being carried on in the building on the lots, the most of them being members of the family living on the premises with their father A. A. Castle, and perhaps all knew that such business was being carried on by him, and no objection was made by them.

The decision in this case involves the construction of the 9th and lOtli sections of chapter 43 of the Revised Statutes, commonly called the “ Dram Shop Act.” Sections 9 and 10, as far as they may relate to the rights of the appellants in this case, are as follows:

Sec. 9. * * * “ And any person owning, renting, leasing or permitting of any building or premises, and having knowledge that-intoxicating liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of intoxicating liquors that have caused, in whole, or in part, the intoxication of any person, shall be liable, severally dr jointly, with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained and for exemplary damages * * * and the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon the premises where such unlawful sale and giving away shall take place,” etc.

Sec. 10 provides, among other things, * * * “ And in case any person shall rent or lease to another any building or premises tobe used or occupied, in whole or in part, for the sale of intoxicating liquors, or shall knowingly permit the same to be used and occupied, such building or premises so used or occupied shall be held liable for and may be sold to pay any such judgment against any person occupying such building or premises ” * * * “Provided that if such building or premises belong to a minor or other person under guardianship), the guardian or conservator of such pjerson, and his real or personal propDerty, shall be held liable instead of such ward, and his property shall be subject to all the provisions of this section relating to the collection of said judgments.”

These are the only sections of the statute that hear upon the question in hand, and after a careful consideration of the subject we have arrived at the conclusion that it was the intention of the legislature in the passage of the two sections to deal only with landlords and their property and those having a rentable interest in buildings and premises that they could control at the time, and that it was not intended to include those who only have reversionary and contingent interest and who are not in any way responsible for the renting, control or . disposition of the property.

Any other construction would work great hardship on those who only have reversionary and contingent interests in real estate, and would be carrying the construction of the statute to unreasonable lengths to so hold. No person can reasonably be said to “ permit ” premises to be used for the sale of intoxicating liquors unless such person has the control over and disposition of the property for the time being, and he can not properly be said to be in that position when he has but a reversionary interest, only coming into control and possession upon the termination of a life.

It was not the intention of the law to drive parties to seek extraordinary and doubtful remedies in order to prevent a forfeiture of their estate under the Dram Shop Act. If the court should first hold that the owner of the reversion should be classed with the landlords in the above sections there would seem to be a necessity to furnish him with some remedy to enable him to prevent, by injunction or otherwise, the use of his property in carrying on the sale of intoxicating liquors, or to require the person so using to give security against damages resulting from such sales, but without such holding no necessity for the furnishing of such a remedy exists, for his property can not be taken. The. legislature,fin the Dram Shop Act, has not furnished such remedy to a reversioner as it would have been proper to have done in case he were included, and this omission furnishes strong ground for holding that he was not intended to be include 1. In case of landlords such remedy is indeed furnished in the provision that the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon the premises where such unlawful sale or. giving away shall take place.” Great doubt exists as to whether a landlord, having rented his premises for purposes other than for the sale or giving away of intoxicating liquors for a fixed term, without provision of forfeiture in the lease in case of such sale, and lawful sales are made before the lease expires with a knowledge of the landlord, and afterward a sale is made also within the time fixed in the lease for its term, from which damages result, would be liable personally, or the leased property subject to the payment of the damages recovered.

The statute, it will he seen, allows forfeiture for the tenant’s lease only in the case of unlawful sales. But we are not called upon to deal with this question, and pass it by. The 9th section of the statute in question would make the appellants personally liable for the damages accruing to appellee incase that c’ass of persons is embraced in the statute if they had been sued at law in the first instance. If the lots in question are held for the payment of this judgment under the 10th section, the appellees could have been sued jointly with A. A. Castle, or severally by themselves, under the 9th section. By the 10th section the guardian of a minor, whose property would be liable in case he were an adult, is held personally liable for the damages as well as his real estate, and the minor and his property are excused.

How, Asahel was a minor at the time of the sale of the intoxicating liquor to Fogerty complained of, and the damages for which the judgment was obtained, and yet the decree is rendered against his interests in the lots as well as that of the other appellants in violation of the express provisions of the statute. If he had no guardian, he, being a minor, could not give legal consent to the use of his property for the sale of intoxicating liquors. The class of persons to which the appellants belong is not by express terms or fair implication included in the statute, and for this reason the court below erred in holding the reversionary, interests of the appellants liable to be sold to pay the judgment agai'.st A. A. Castle and in rendering the decree. The decree of the court below is therefore reversed and cause remanded, with direction to the court to dismiss the bill.

Decree reversed and remanded.


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       Lydia Van Lone et al. v. Floyd K. Whittemore.
    Mechanic’s lien — Sale of land. — The decree for the sale of the land under the mechanic’s lien is reversed, as the court ordered all the land sold instead of the several tracts on which the buildings were situate respectively.
    Error to the Circuit Court of De Kalb county ; the Hon. C. W. Upton, Judge, presiding.
    Opinion filed April 05, 1886.
    Messrs. Jones & Bishop, for plaintiff in error.
    Messrs. Dunton & Pratt, for defendant in error.

      Two cases.

   Lacey, P. J.

The above two suits were consolidated by order of the court below, and were tried as one suit. The suits in the first instance having been commenced by the defendants in error in proceedings to foreclose mechanic’s lien, by each de endant in error separately, but against the same party, John Lovell and his representatives, he having died, leaving his wife Lydia, and children, Walter C., James and Lotta B. Lovell. The first suit was commenced by Marshall Stark to foreclose on the premises hereinafter mentioned, for lumber sold to John Lovell, and by him used in building a dwelling-house on the farm lie- occupied. Stark having died, the defen lant in error was made party complainant in his stead. The other suit was commenced by Floyd K. Whittemore, the surviving partner of Harkness & Whittemore (John B. Harkness was the full name of the partner who was deceased), for building, hardware and other building material for the erection of a barn and a dwelling-house upon the same premises occupied by John Lovell. The claim of Stark was for a balance of $252.07, and of Harkness & Whittemore, $219.93. It seems that John Lovell, who was the son of James Lovell, Sr., occupied the land described in the petitions, but that the latter held the title to it. James Lovell having died, the heirs of John Lovell, deceased, were made by his will the legatees of the real estate, and they claim title through their grandfather, James Lovell, Sr., deceased. In each of said petitions James Lovell, Sr., was made a party, and in each it wasaverred that the materials were purchased by said John Lovell upon credit to be used in the erection (in the case of Harlmess & Whittemore) in the construction of said barn and dwelling-house, and (in case of Stark) to be used in building, and it was in fact used in building an addition and repairing a certain b biding on the premises, and it was also averred in each that the said lumber and materials were so furnished and used with the full knowledge and consent of James Lovell, Sr., and under his direction and approbation.

The real estate described in each of said petitions as being the real estate on which the materials were to be and were used is as follows: Assessor’s lots Nos. 11, 15, 17, 18, 24, 25, and 27 of section No. 35, in township No. 41 N., E. 5, east, 3d P. M.; also that part of the northwest quarter of section No. 2 in township No. 40, range 5 east, and all that part of the west half of said section No. 2 lying north of the Sycamore and St. Charles road passing through said section 2, except a strip two rods wide on the east side thereof, all in De Kalb Co., Ill. The cause, after the various amendments and consolidation, went to final decree, which found the sums due as alleged in the petition to each of the parties found in this case of Stark, defendant in error ; that the lumber and cement was to be and in fact was used in building an addition to and repairing a certain building located'on the premises described, and in case of Whittemore, defendant in error, the court found that the hardware and other building material was to be and was used in the construction of the said barn and dwelling house on the said premises.” . The order for sale follows in the regular order, the land ordered to sale being the same as set out in the petitions. The decree was rendered Nov. 25,1884. To reverse this decree, this writ of error is brought. There appears to be a double description of the land lying in section No. 2, as the west half of the section includes the northwest quarter, and in each description it is that portion lying north of the Sycamore and St. Charles road, so that the last description, covers all. This court can take judicial notice that the various lots in said section 85. in township 41, north, is an entirely different tract of land than that part in section Ho. 2 in township Ho. 40. The tracts are separated by the township line. The house, as a matter of fact, can not be constructed on both tracts. It must be on the one or the other, and the evidence in the record discloses that it is located on the" land lying in said section Ho. 2. The decree, then, to sell the lots lying in said sect'on Ho. 35, is erroneous. This could not be aided by virtue of the "Whittemore petition, for, in that case, if the house and barn were located on the said section 2, it would be liable to the same objection that we find to the Stark case as above stated; and in case the barn were located on the lots in said section Ho. 35, then the lien for the material furnished for the barn would be separate and independent of the lien for materials furnished for the house, and the two could not be blended and the two tracts sold jointly.

The lot or tract of land upon which the building is located can alone be sold. See Woodburn et ah v. Gifford Co., 66 Ill. 285.

We have examined the other objections made to the action of the court in rendering the decree, and do not find that they are well taken, and it will not be noces ary to notice them independently. But for the error of the court in ordering all the land sold instead of the several tracts on which the building or buildings are situate respectively, the decree will be reversed and the cause remanded.

Reversed and remanded.


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    Elias Rowland v. Theodore D. Hewitt, Assignee, etc.
    1. Assignment for benefit of creditors — Acceptance by assignee . —The possession of the deed of assignment by the assignee at any time after its execution, will constitute a presumption of his acceptance of it from the time it was executed and recorded.
    . 2. Landlord and tenant — Distraint ""fob rent. — An execution levied on goods on leased premises, prior to the distraint, takes precedence of any claim the landlord may have for the rent of the building in which the goods are kept.
    3. Statutes. — The Statute of Anne is not a part of the common law in force in this State, it having been passed since the fourth year of James I, since which time English statutes are not in force here.
    Appeal from Circuit Court of Ogle county; the Hon. William Brown," Judge, presiding.
    Opinion filed April 5, 1886.
    Mr. J. C. Seyster and Mr. Frank Wertz, for appellant.
    Mr. M. D. Swift, fur appellee.
   Lacey, P. J.

The subject of this suit is the possession of a stock of goods in Forreston, Ill., which formerly belonged to Daniel A. Glasgow.

Morris McCoy, deputy for the sheriff, on the 25th day of March, 1885, was in possession of the goods, having levied on them on an execution in favor of Albert Marlow, issued on that day. He held possession until April 15,1885. On the 26th day of March Glasgow executed to appellee a deed of assignment for all his real and personal property not exempt for the benefit of creditors, which was filed in the county clerk’s office for record on the same day at 3:15 o’clock a. m. and in the circuit clerk’s office also for record on the same day at 3:50 o’clock a. m. On the said 26th day of March, at about 9 o’clock A. m., IsaacB. Allen, havingaclaim of $139.60 for rent due from Glasgow for the use of the store building where these goods were stored, issued his distress warrant and placed it in the hands of McCoy to execute, who levied it on the goods subject to his, Marlow’s execution;" on the same day McCoy delivered it to Absalom Eakle, a justice of the peace, with an inventory of the property levied on. The justice of the peace issued a summons to Glasgow, which was served. On the first day of April Glasgow confessed j udgment before the justice of the peace for the amount of rent due, and the justice of the peace entered up a general judgment, and on the 11th of April issued a general execution thereon and delivered it to appellant, a constable, to execute. On the loth day of April, the Marlow execution having been satisfied by sale of a portion of the goods, McCoy turned the goods over to appellant and appellee jointly, giving appellant and Geeting, the agent of appellee, each a key to the store, and gave up possession of the goods to them. The appellant then levied his execution on the goods and dispossessed appellee, who brought this suit in replevin against appellant, and succeeded in the court below, and app diant brings this appeal. It is claimed by counsel for appellant that there is no evidence of the delivery of the deed of assignment up to the time the property in question was seized under the distress warrant, or even up to the time it was levied on by appellant, or that he had accepted the trust.

We think this claim is not tenable. This is a proceeding under the statute. The appellee claimed under the deed and his acceptance, from the time the deed was executed and recorded, will be presumed without further proof. See Sec. 1 (31), Chap. 72 K. S. See statute. 1874, Chap. 10 ; Freydendall et al. v. Baldwin et al., 103 Ill. 325. The possession of the deed claiming under it at any time after its execution, as in case of ordinary deeds to real estate, would be sufficient proof that he took under the deed from its date, unless rebutted, if that even would be allowed. It is also claimed that Allen had a landlord’s lien on the goods for the rent. This we think is equally untenable. Allen had no lien as such, independent of a distraint, and can not succeed by virtue of such claim.

In this State a landlord has no lien except that given by the statute. At common law, before the passage by the British Parliament of the statute of 8th Anne, Chap. 14, the landlord had no lien of any kind, but only aright of distraint, and the statute of Anne is not a part of the common law in force in this State, it having been passed since the fourth year of James I, since which time English statutes are not in force here. An execution levied on goods on leased premises prior to the distraint takes precedence of any claim the landlord may have for the rent of the building in which the goods are kept. Herron v. Gill, 112 Ill. 247. The distress proceedings, besides, were abandoned by Allen, and McCoy, the bailiff, Allen taking a general judgment and execution which could, in any event, only create a lien on personal property from the time it came into the hands of appellant, the constable. •

The levy of the distress warrant, as well as the date and delivery of the execution, were both subsequent to the execution and recording of the deed of assignment. Hence no lien is created in favor of Allen or his execution in the hands of appellant. Whatever claim Allen has against the assets of the bankrupt estate of Glasgow will have to be adjudicated in the county court. He has no right to levy on the goods thus assigned in the hands of the assignee. Finding no error in the record, the judgment of the court below is affirmed.

Judgment affirmed.