text:
    John Harmon et al. Auditor of Public Accounts et al.

      Municipal Corporations — •Railroad Bonds — Bill to Enjoin Collection and Payment of Taxes — Former Adjudication — Parties—Estoppel—Comp> omise.

    Upon a bill filed by certain taxpayers on behalf of themselves and all other taxpayers of the town in which they reside, to enjoin the payment of certain railroad bonds and the collection of taxes therefor, it is held: That, although the election at which the issue of the bonds was authorized maybe admitted to have been invalid, the complainants are estopped by the decree of the Supreme Court in a former action brought by certain other taxpayers of the town, to enjoin the issue of the bonds in question; that the complainants in the former action represented all other taxpayers residing, or who might thereafter reside, in the town; that the question whether the election at which the issue of the bonds was authorized, was legally conducted, is res adjudicata, it having been sufficiently presented by the pleadings and evidence in the former action, although not passed upon by the Supreme Court; that the objection that the bonds exceeded five per cent, of the taxable property of the town can not now be raised, even if the donation was within the Constitution of 1870; and that, it seems, a certain compromise as to the issue of the bonds would not of itself estop the complainants.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Ogle County, the Hon. J. Y. Eustace, Judge, presiding.
    Statement by Lacey, J. This was a bill in equity, filed to October term, 1882, by the appellants against the appellees, seeking to enjoin the County Treasurer of Ogle County from paying over to the Auditor of Public Accounts so much of the tax as has been collected to pay certain town bonds of the Town of Mt. Morris, in said county, and also the County Collector from collecting the remainder of the tax under the law of 1869, to pay said bonds, there having been already collected and in the hands of the County Treasurer the sum of 84,301.37 of the tax levied for that purpose.

      The appellants are taxpayers of the said Town of Mount Morris, in Ogle County, residing therein, to the amount of about $200 each annually. It appears from the bill, answers and evidence in the case that the Town of Mount Morris was duly organized under township organization law; that John W. Hitt, Supervisor, and H. H. Clevidence, Town Clerk, issued certain bonds of the said town to the Chicago and Iowa Railroad Company, bearing date May 3, 1875, and due May 1, 1885, of two series; the first for $500 each, numbered from one to fifty, inclusive, and the second for $1,000 each, numbered from fifty-one to seventy-five, inclusive; making in all seventy-five bonds, aggregating the sum of $50,000, each with coupons attached drawing ten per cent, interest, the interest payable annually. The taxes were sought to be collected under the Act of April, 1869. The vote of the legally qualified electors of the town, under which the original authority is claimed to issue the bonds, was taken under Secs. 11,12 and 13 of the charter to incorporate the Chicago and Iowa Railroad Company, Private Laws 1869, Vol. 2, page 163, which is set out in full, on the 30th day of June, 1870, at a town meeting, under proper notice. The bonds were voted as a donation, and the sum of $75,000 was voted instead of $50,000, as was afterward issued. The election was held as a special town meeting, presided over by a moderator, and without the judges and clerks required at general elections. The bonds were duly registered in the Auditor’s office, at Springfield, and the taxes were duly levied as stated in the bill. It appears that after the vote to issue the $75,000 in hand to the company was taken, and after the railroad was very nearly completed and the bonds were about to be issued, according to the vote, to wit, on the 11th day of November, 1871, one Daniel J. Pinckney and five others, all residents and owners of real and personal property located in said town, and which property was liable in common with the other taxable property in the said town to taxation for State, county and township purposes, filed their bill in equity in the Circuit Court of Ogle County against the said Railroad Company, the Town of Mount Morris, Charles Newcomer, its Supervisor, and Henry H. Clevidence, its Cleric, praying that the issuing of the said bonds be perpetually enjoined, and that the assessment and collection of any taxes upon the taxable property in the said Town of Mount Morris to pay said bonds, or any part thereof, be perpetually restrained. The bill sets up in proper form and makes these points against the validity of the said proposed bonds: That the ballots cast were illegal and void, in that the voters voting had no power to determine whether the Town should make any donation, or to bind or obligate the Town to make any donation or to issue bonds; and that in truth and fact there were no legal and valid votes or ballots cast at said election.
    The bill purports to ask relief in favor of the complainants and all other tax-payers of the Town of Mount Morris.
    It sets up particularly the manner of posting the notice, the provisions of the sections of the charter under which the vote was purported to be taken, and particularly its requirement in regard to calling and holding an election. Among other requirements is this: “ And it [by the charter] was further expressly provided that such election should be held and conducted and returns thereof made as was provided by the township organization law in towns organized under said law.” It further showed that Frederick B. Brayton, the Town Clerk, received the necessary petition of the requisite number of taxpayers on June 9, 1870, and that the Town Clerk posted the notices in proper form, of an election to be holden on June 30, 1870, for donation for $75,000 to said railroad company. It further showed that the Town Clerk called the meeting to order on June 30, 1870, at the place and time mentioned in the notice, between 9 and 10 o’clock, a. m., where the voters had assembled, and that M. T. Holier was chosen moderator of the meeting, and during the continuance of the meeting acted as such and was sworn; that the polls were kept open till six o’clock in the evening, and upon canvass there was 57 majority for the donation. ■ It (the bill) objects that the notice posted for the election was void, because it failed to fully state the object of the election and the rate of interest the proposed bonds were to bear, etc. This was about the full scope of the Pinckney bill. To this bill the railroad company answered separately. The town and the Supervisor joined in an answer. Both answers admitted in affirmative terms the manner of holding the election, and the manner was proved on the hearing by a 'copy of the record. Upon a hearing the Circuit Court perpetually enjoined the town and its officers from issuing and the railroad and its agents from receiving the bonds in question. The defendants took the case by appeal to the Supreme Court, where, on a second hearing on the merits, the decree of the Circuit Court was reversed and the bill dismissed. The judge, in writing the opinion of the Supreme Court, states that the principal points relied on by the appellant to prevent the town from issuing bonds are: Fwst. The Constitution of 1870 prohibits a donation by a town to a railroad corporation. Second. The vote was void, because the notice of election and the petition were defective.
    The Supreme Court held both the points against the appellees in that case. In the meantime H. H. Clevidence, Super! visor, had been succeeded by John W. Hitt. Upon petition of tax-payers, after the decision in the Supreme Court against the town, he called a special town meeting and laid the proposition of the railroad company before them to take $50,000 instead of $75,000, which was a rebatement of all interest, and $25,000 of the principal sum voted, and the tax-payers voted unanimously to accept it. At the annual town meeting, occurring within eighteen months thereafter, on April 6, 1875, the action of the special town meeting was approved and ratified, with thanks to the Supervisor who brought about the settlement. Under these circumstances the bonds in question were issued and delivered to the railroad company. One of the defendants. The German Fire Insurance ConqDany, relying on the judicial sanction of the bonds and of the compromise, purchased of them to the amount of $26,500. Chester H. Williams, under the same circumstances, purchased two of the same bonds, and he is one of the defendants, and Benjamin F. Hedrick, another of the defendants, purchased two other of the bonds of $1,000 each.
    The taxable property as assessed by the Town Assessor was §1,147,640 for the year 1874, and as equalized by the Board of Supervisors of Ogle County it was §997,441, and by the State Board of Equalization §692,057, and for the year 1875 it was assessed by the Town Assessor §1,233,822, and by the County Board of Equalization §1,009,822, and by State Board of Equalization §691,884.
    The court below, upon the hearing, dismissed the bill, and from that decree this appeal is taken. The town continued to pay the annual interest on these bonds so issued till the commencement of this suit.
    Messrs. Cook & Lawrence and W. & W. D. Bargee, for appellants.
    None of the complainants in this case were parties to the Pinckney suit (74 Ill. 277). The relief sought in that case was to enjoin the town and its officers from issuing bonds to the Chicago and Iowa Bail road Company, in the sum of §75,000. The court did not decide that there was any valid election hoi den, nor that these bonds were valid and binding upon the town. They simply say, “ we can see no ground upon which the hill in this case can be sustained.”
    Neither the parties nor the subject-matter are, or is, the same in these cases. The complainants in this case, being neither complainants nor defendants in the former case, were not, therefore, parties to the record in that case, and not being parties of record thereto they could not introduce testimony nor cross-examine witnesses, nor take exceptions, nor pray an appeal from the judgment of that court. True they are owners of real property and tax-payers in that town, but they have not acquired title to their realty through or from any of the complainants in the former suit, and do not claim under them, and they are therefore not privies with them, and are, therefore, not to be concluded by that judgment, because they could not avail themselves of the same means of protecting themselves and their property, which are open to them by reason of the present suit. The town is not the representative of the tax-payers or in privity with them. It has no property subject to taxation, and whether a tax levied upon citizens shall be collected is a matter for the citizen to determine. City of Waverly v. Auditor of Public Accounts, 100 Ill. 354.
    The subject-matter in the case of Pinckney v. C. & I. R. R. Co., was the donation of §75,000 of the bonds of the town of hit. Morris, and the purpose of the suit was to restrain the issuing of the bonds. The subject-matter of this suit was §50,000 of the bonds of the town issued five years after, and the purpose of the suit is to restrain the collecting of taxes from complainants to pay said bonds. Cromwell v. County of Sac, 94 U. S. 351; Scates v. King, 110 Ill. 456; Davis v. Brown, 94 U. S. 428; Cooper v. Corbin, 105 Ill. 228; Town of Lyons v. Cooledge, 89 Ill. 529, 536; Gaar, Scott & Co. v. Hurd, 92 Ill. 315, 332; Yeates v. Briggs, 95 Ill. 79, 87.
    In order to constitute an estoppel the same point must be put in issue upon the record and directly found, whenever a fact has been so put in issue and determined that the record is regarded as conclusive of that fact whenever it is again drawn in question between the same parties or their privies. But it results from the established rule of pleading that this rule must be strictly confined to what is put directly in issue, and can not be extended to collateral facts, or facts to be dedneed by inference from the facts found. Eastman v. Cooper, 26 Am. Dec. 604; Keater v. Hock, 16 Iowa, 24; King v. Parker, 15 N. H. 1 ; Burt v. Sternberg, 4 Cow. 559; Thompson v. Clay, 16 Am. Dec. 110 ; Balsain v. Cloutier, 22 Am. Dec. 180 ; Knox v. Exeter, 42 N. Y. (S. Ct.) 10 ; Lawrence v. Hunt, 10 Wend. 80; S. C. Am. Dec. 539; Quackenbush v. Ela, 5 Barb. 473.
    Mr. M. D. Hathaway, for appellees.
    The decree in the Pinckney case established the validity of the original donation, and that decree binds the complainants in this case.
    The judgment of the court of competent jurisdiction is not only conclusive on all questions actually and formally litigated, but as to all questions within the issue, whether formally litigated or not. Bellinger v. Craine, 31 Barb. 537; Freeman on Judgments, 3d Ed., Sec. 275; Armstrong v. St. Louis, 69 Mo. 409; Long v. Webb, 24 Minn. 380.
    Even if we assume that the Pinckney bill attacked the election solely on the ground that the notice of election was insufficient, the decree is still res adjudioata. A complainant can not set up some of his grounds for relief in one bill, and when defeated file another and set up other grounds of relief. In such case he is concluded by the former decree. Ruegger v. I. & St. L. R. R. Co., 103 Ill. 449 ; Hamilton v. Quimby, 46 Ill. 90; Rogers v. Higgins, 57 Ill. 244; Kelly v. Donlin, 70 Ill. 378 ; Garrick v. Chamberlain, 97 Ill. 620 ; Briscoe v. Lloyd, 64 Ill. 33; Gray v. Gillilan, 15 Ill. 453; Guinard v. Heysinger, 15 Ill. 288; Wells v. McClenning, 23 Ill. 409; Locke v. Davison, 111 Ill. 19; Att’y-Gen. v. C. & E. R. R. Co., 112 Ill. 520.
    The authorities are uniform that res adjudioata covers whatever might have been litigated in the former suit. Aurora City v. West, 7 Wall. 82; Fischli v. Fischli, 1 Blatchf. 360; Lindsley v. Thompson, 1 Tenn. Ch. 272; Dewey v. Peck, 33 Iowa, 242; Smith v. Town of Ontario, 18 Blatchf. 454; McGregor v. McGregor, 21 Iowa, 441; Petersine v. Thomas, 28 Ohio St. 596; Knight v. Atkinson, 2 Tenn. Ch. 384; Bates v. Spooner, 45 Ind. 489; Beloit v. Morgan, 7 Wall. 619.
    As the Pinckney decree established the validity of the original donation, the bonds now in controversy are valid.
    As the original bonds must be held valid under the doctrine of res adjudioata, the bonds issued in 1875 and now in controversy must be held valid. A municipality undoubtedly has power to issue bonds to he substituted for those which it can legally he compelled to issue. Rogan v. Watertown, 30 Wis. 259; City of Troy v. R. R. Co., 11 Kan. 519; McKee v. Vernon Co., 3 Dillon, 210 ; New Albany v. Burke, 11 Wall. 96; State v. Holladay, 72 Mo. 499; Chandler v. Attica, 18 Fed. Rep. 299; Steines v. Franklin Co., 48 Mo. 167; Burr v. Carbondale, 76 Ill. 455, 474.
    This court can not declare these bonds void as against these defendants. They bought the bonds, in reliance on the Pinckney decree, and no State court can impair the obligation of their contract. Gelpeke v. Dubuque, 1 Wall. 175, 206 ; Trust Co. v. Debolt, 16 How. 432; Green Co. v. Conness, 109 U. S. 104; Douglas v. Pike Co., 101 U. S. 677; County of Ralls v. Douglas, 105 U. S. 728; Olcott v. Supervisors, 16 Wall. 678; Havemeyer v. Iowa City, 3 Wall. 294.
   Lacey, J.

Two points are presented in this case for our consideration, as follows: Was the election held June 30, 1870, void, or was it invalid by the reason of the election having been held by a moderator, and not by judges and clerks the same as regular elections ? If such election is admitted to be illegal, is there an estoppel against appellants, tax-payers who are complainants herein, by reason of the Pinckney suit and final decree of the Supreme Court deciding in favor of the validity of the bonds and the subsequent compromise with the railroad company and the issuing of the $50,000 in bonds in lieu of the $75,000 originally voted? It must be conceded that the original election was invalid, not being held according to the charter of the railroad company which required the elections authorizing the subscriptions or donations to the railroad company to be carried on the same as in general elections, by j udges and clerks, instead of being conducted by a moderator, as in the present instance. C. & I. R. R. Co. et al v. Mallory, 101 Ill. 583.

The question remaining is, was there an estoppel ? This brings us to consider first whether the parties to the two different suits were the same in the eyes of the law and whether the subject-matter of the first suit was legally identical with what is attempted to be litigated here. It will be observed that the town of Mt. Morris and the Chicago and Iowa Railroad Company and the Supervisor and Town Clerk were party respondents in the Pinckney case, supra. That if the town and its officers had seen proper, it could have joined the complainants in trying to defeat the issuing of the bonds, but it remained one of the defendants, probably choosing to occupy a neutral position; and the railroad company defended against the attacking tax-payers of the town who were really representing the other tax-payers. The railroad company was suecessful and legally established their right in that suit to have the bonds issued. They were issued, by the company rebating all of the 875,000 voted, except 850,000. After the railroad had sold the bonds to innocent purchasers who relied on the fact that the highest legal tribunal in the State had declared them valid, can another set of tax-payers be allowed to come forward and relitigate the same matter, find new objections and defeat the payment of the bonds? If the appellants may do this every other tax-payer in the town may do the same thing and there are several hundred of them. There would be no end to litigation if such were the law. We think the complainants in the first suit not only represented themselves in the matter, but all the other tax-payers that then resided in the town and all those who may come after them. All the tax-payers had a common interest with the first complainants in the question of the validity of the bonds. If the suit was successful all were alike benefited in proportion to the taxable property they owned, and it was impracticable to make all the tax-payers parties complainant. In such case a portion of the tax-payers interested in common with the others may represent the interest of all, more especially in this class of cases where tax-payers are allowed to sue, and where they are not compelled to await the action of the officers representing the town. It would be contrary to a sound public policy to allow each tax-payer a right to an independent and successive suit.

We find that this question has been passed upon by courts of the highest authority and they have held that the tax-payer who brings this kind of a suit, represents all other tax-payers, and that a judgment against them binds all others in the same common interest. That also a suit by the town or other municipal body binds the tax-payers and a judgment against the town can be pleaded in bar against any tax-paver who may attempt to revive the same litigation in his own name. “ A petitioner, a citizen of a county, is bound by a judgment against the county in a court having jurisdiction, or against the Board of Supervisors, they being the legal representatives of the county.” Clark v. Wolf, 29 Iowa, 197. A case much in point and similar in facts to the case at bar is the State ex rel. v. C. & L. N. G. Railroad Company, 13 S. C. 290, and also the State ex rel. v. Wilson, 74 Mo. 232. See, also, Freeman on Judgments, Ed. 1881, Sec. 178; Scotland Co. v. Hill, 112 U. S. 183. These cases fully sustain the doctrine.

The next and remaining question is, was the point now made in the suit, that the election of June 30, 1870, at which the donation of §75,000 was voted by the legal voters of the town invalid because the election was presided over by a moderator and not judges and clerks adjudicated in the Pinckney suit; or ought it to have been so adjudicated, so as to estop appellants from relitigating the matter in this suit?

We think clearly it was so settled and is a matter res adjudicata. In.the bill in that case all the facts in regard to the petition for calling the election, the manner of conducting the election by a moderator, declaration of and counting the vote, and every other step, was set forth particularly.

The answers admitted this and the proof also showed it. The bill also made the point that the election and vote were void.

The identical question raised here was sufficiently presented by the pleadings and evidence. If the point had been made in the brief or argument to the Circuit or Supreme Court without any amendment to the bill the questions must have been passed upon. Ho other allegation need have been made. All the allegations and pleadings were before the eyes and face of attorneys, and all they need do was to point out the objection to the court.

Instead of that they remained silent apparently not aware that such a point might be made and so failed to urge it before the court, although the Supreme Court had decided the question before.

The Supreme Court did. not pass upon the question at all but only upon the question as to whether the Constitution cut out donations, though not subscriptions in all cases, to railroad companies by municipal corporations after July 21, 1870, the day the new Constitution went into effect, and the sufficiency of the petition to call the election as to interest to be borne by the bonds.

The court held that the saving clause in the Constitution applied to donations as well as to subscriptions, and that the petition of twenty voters to have an election called was sufficient, and reversed the decree and dismissed the bill.

In Preble v. Board Supervisors, 8 Biss. 358, it was held that a “ complainant can not divide his cause of action, setting up one ground of illegality in that suit, and if he fails in that, bring a second suit for like purpose, setting up another ground of illegality,” provided the facts were known at the time of the bringing of the first suit. The same was held in Rodgers v. Higgins, 57 Ill. 244; Kelly v. Donlin, 70 Ill. 378; Rugger v. I. & St. L. R. R. Co., 103 Ill. 449; Hamilton v. Quimby, 46 Ill. 90; Garrick v. Chamberlain, 97 Ill. 620; Briscoe v. Lloyd, 64 Ill. 33.

There can be no pretense that the complainants in the Pinckney bill did not fully know of the manner in which the election was held, for they particularly set it out in their bill, and ignorance of .law will not avail them.

As to the point raised, that the question that the town under the Constitution could not issue the bonds, because it would have been in excess of five per cent, of the.assessed value of the taxable property in the town, we say that upon the determination by the Supreme Court in the Pinckney case, that the donation was valid, the bonds became issuable under the saving clause of the Constitution, which is as follows: This section shall not be construed to prevent any county, city, township, school district or other municipal corporation from issuing their bonds in compliance with any vote of the people which may have been had prior to the adoption of this Constitution in pursuance of any law providing therefor.”

When it was once determined that this donation was a valid obligation, it became a vested right to have it paid as against any new law that should be passed, and the new Constitution was not aimed to affect debts existing at its adoption.

In this view it made no difference whether the point was raised as long as complainants in that case failed to raise any point to affect the validity of the vote, as it must inevitably have been overruled if made. And for the same reason it is of no value now. It should also have been raised in the Pinckney case, as Pinckney and his attorneys must have had knowedge of the existence of the Constitution of 1870, and the assessed value of the taxable property of the town. The Supreme Court, in Ramsey v. Hoger, 76 Ill. 432, did not hold that portion of the act of 1869 in relation to registration and collection of the bonds from the towns void, only the excessive tax levied by virtue of it and the law allowing such levy.

We are inclined to hold that the compromise between the railroad company and the town and the issuance of a less number of bonds than voted, would not be in itself an estoppel to the prosecution of this suit. If the town had no authority to issue the bonds this compromise could not confer it. But as the bonds are to he held valid such fact is not needed as the former adjudication settles the matter without it. The bonds were Issued in accordance with the original vote, only five years later, and this delay was caused wrongfully by the town, or the suit of the tax-payers, which is chargeable to these complainants, and the fault should not be charged to the bondholders. The railroad company, without doubt, would have taken them sooner if they could have gotten them.

We have noticed every objection of importance urged against the correctness of the decree of the Circuit Court, and finding no error affirm it.

Decree affirmed. ,


source: Caselaw Access Project

author: Lacey, J.

license: Public Domain

text:
    Elizabeth R. Nesbitt et al. v. Joseph Dickover, for use, etc.

      Garnishment — Service of Process — Effect on Lien Claimed by Sub-Contractor — Jurisdiction of Justice when Judgment Exceeds §200.

    1. The service of garnishee process works an appropriation of so much of the amount due the judgment debtor as equals the amount of the judgment with costs and interest.

      2. Such service defeats to that extent a lien claimed by a sub-contractor of which notice is not served upon the defendant until after the service of the garnishee process.
    3. A Justice of the Peace has jurisdiction in garnishee proceedings to render judgment for the full amount of the judgment with costs and interest, although it exceeds ¡$200.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Stephenson County; the Hon. William Brown, Judge, presiding.
    Statement by Lacey. J. This was a garnishee proceeding, brought by Sanford & Rowell, judgment creditors of Joseph Dickover, against the appellants, debtors of Joseph Dickover, before a Justice of the Peace, and from thence appealed by appellee to the Circuit Court, and tried in that court without a jury on an agreed state of facts.
    The Circuit Court found the issues for the appellee, and rendered judgment in favor of the garnisheeing creditors for $236.51 and costs of suit, from which judgment an appeal is taken to this court. The substance of the agreed state of facts is about as follows: In the summer of 1885 the appellants contracted with appellee, Dickover, by verbal contract, to furnish the materials and build them a house on certain premises in Freeport, for the sum of $1,925, to be completed by December 1, 1885.
    At the time of the service of the garnishee process in the case, November 10, 1885, appellants had. paid to appellee $1,000 on the contract. The house was not then completed, but $200 would cover the cost of completion, and the. house, since December 1, 1885, was accepted and completed. On the 18th day of May, 1883, said Sanford & Row-ell had recovered a judgment before one Heard, a Justice of the Peace of the town of Freeport, for $200 and costs, amounting to $1.45. On the June 8th next following, an execution was duly issued thereon and returned by the constable nulla Iona.

    The garnishee process was taken out before the Justice of the Peace, who was the successor of Heard in respect to the above judgment, and duly served on appellants November 10, 1885. Subsequently to the service of said garnishee summons and before the hearing of said garnishee cause, notices were served on the appellants by the subcontractors of said Dickover that they would hold the said building on account of material furnished and labor performed on the said building for amounts aggregating §925, the total amount remaining due, the materials and labor being actually used in the erection of appellant’s house. No other payment than the §1,000 had been made. The notice and services were regular under the statute. There' were no other liens and claims.
    Mr. Charles S. Green, for appellants.
    Messrs. Neff & Stevens, for appellee.
   Lacey, J.

Only two questions arise on this record :

First. Does the claim of a judgment creditor by service of garnishee process on the debtor of such judgment debtor take precedence in payment over the legal claim for labor and materials furnished by subcontractors of the judgment debtor used in the erection of the building of such garnishee, where proper lien notice is given to the latter, but subsequently to the service of such process ?

Second. Has the Justice of the Peace issuing such process jurisdiction to render judgment in favor of the garnisheeing creditor, against the garnishee, for more than §200, where the original judgment was for that sum but by reason of interest and costs exceeds it ?

We are inclined to hold both propositions in the affirmative. There is no question arising here against there being enough funds in the hands of the appellants at the time of the service of the garnishee process already earned by the judgment debtor to more than cover the claim of appellee’s garnisheeing creditor. Hnder the statute of 1869, the subcontractor had twenty days, after the completion of his subcontract, in which to give the owner notice of his intention to claim a lien, and that all payments to the original contractor before the expiration of the said'twenty days should be regarded as having been improperly made, as against the liens of such subcontractor. Havighorst v. Lindberg, 67 Ill. 463. But this law appearing too stringent and liable to work injustice toward those erecting buildings, and liable to compel them to pay more for their buildings than the original contract price, as Havighorst was compelled to do in the above case, the Legislature in 1874 amended the law, by which it was provided that “ no claim of any subcontractor, mechanic, workman or other person, shall be a lien, under Sec. 29 of this Act, except so far as the owner may be indebted to the contractor at the time of giving such notice as aforesaid, of such claim, or may become indebted afterward to him as such contractor.” Sec. 83, Chap. 82 R. S. 1874.

According to this provision, the only question under the facts of this case that can arise, and which is determinative of the point, is whether the service of the garnishee process prior to the notice is equivalent to payment by the owner of the building at the time of such service. If so, then the decision of the Circuit Court is correct; if not, it is not correct. We think the service of the garnishee process worked an appropriation from that time, of so much of the claim of the judgment debtor against the appellants as the judgment, interest and costs amounted to. From that time the garnishees could not voluntarily free themselves from the payment of the claim of the garnisheeing creditor, and the notice was only a legal demand from the day of its service, and compelled the appellants to respond to them for all the money in their hands, owing to appellee, not already appropriated by them, or which they had not become bound to pay in some other manner. From and after the date of the service of this garnishee process the appellee was not, in a legal sense, indebted to the appellants for the sum covered by this judgment. The courts in this State have always held that tlr garnishee must respond for every species of property in his hands, at the time of the service of the writ, belonging to the origina debtor, and all moneys owing him at that time. Thau is the form of all the interrogatories filed. “ What property had you in your hands at the time of the service of the writ, belonging to the original debtor, or what did you owe him at that time?” It is virtually an attaching process. The following authorities will show the holding of the courts, in this State, on the question: Smith v. Clinton Bridge Co., 13 Ill. App. 572; Glass v. Doane, 15 Ill. App. 66; McCoy v. Williams, 1 Gilm. 584; Nichols, Shepard & Co. v. Goodheart, 5 Ill. App. 574; Roche v. R. In. Ass’n, 2 Ill. App. 360; Drake on Att, Sec. 675. Directly in point is Payne v. Wilson, 74 N. Y. 348.

The case of Bigelow v. Andress, 31 Ill. 322, is of an entirely different nature. It was simply held in that case that the service of the garnishee process did not operate as a lien on the chattels held by the garnishee and 'belonging to the debtor so as to prevent the garnishee from selling them, but he would be compelled to answer for their value. He is held liable if he fails to produce the chattels.

We think the Justice, and therefore, the Circuit Court, had jurisdiction to render judgment for the judgment and the interest and costs, though it exceeded $200.

The statute is silent on the subject of the amount of the Justice’s jurisdiction in cases of garnishee on judgment re-' covered before him unless the case is covered by the general statute on jurisdiction which we do not think it is. The statute allowing a Justice to issue garnishee process to collect judgments on his docket would fail of its object, if the Justice had no power to give judgment for more than $200, for in many cases the interest and costs and judgment would far exceed that amount. There is no court save where the judgment is rendered that can issue the garnishee writ. T. P. & W. R. W. Co. v. Beynolds, 72 Ill. 487. The garnishee mode of collecting judgments is only a statutory mode of obtaining execution Bear v. Hoys, 36 Ill. 280; Mich. Cen. R. R. Co v. Keohane, 31 Ill. 144, and the statute authorizes . the Justice to enter judgment against the garnishee in case of default for the amount o the original judgment and costs. R. S., Sec. 8, Chap. 62. See Chanute v Martin, 25 Ill. 63. The garnishee proceedings is only an incident in the collection of the original judgment, and the amount of that judgment, interest- and costs was the test of its jurisdiction in this proceeding. The judgment of the court below is therefore affirmed. Affirmed.


author: Welch, J.

text:
    The Kankakee & Seneca Railroad Company and the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company v. Owen Horan.

      Railroads — Obstruction to Natural Flow of Surface Water — Action for Damages — Measure of Damages.

    1. A railroad company is liable for any injury that may result to the owner of lands from an obstruction created by it to the natural flow of surface water.
    2. Where a railroad company has by artificial means obstructed the natural flow of surface water and thereby damaged the lands of another, the question whether the injury could be obviated in whole or in part at a reasonable expense by the party injured should be taken into account in estimating the damages sustained by him.
    3. Where the injury can be thus obviated, the measure of damages is not the depreciation in the value of the lands injured, but the cost of the ditch, or other necessary remedy, the value of the land used and the cost of maintenance.
    4. Where the obstruction is on the premises of the defendant, the plaintiff is not required to commit a trespass by entering thereon to remove it.
    5. In the case presented, it is held: That evidence tending to show what a ditch entirely on plaintiff’s premises and sufficient to remove the water therefrom would cost, was improperly excluded; and that the rulings of the trial court upon certain other questions on the admission of evidence, and in granting and refusing instructions, were substantially correct.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Grundy County; the lion. Dobbence Dibell, Judge, presiding.

      Mr. Gf. S. Eldridgb, for appellants.
    The Kankakee & Seneca Railroad Company had the lawful right to construct its railroad over the plaintiff’s land, and the deed by the plaintiff had all the effect that a judgment of condemnation would have had. C., R. I. & P. Ry. Co. v. Smith, 111 Ill. 363, and cases cited.
    The consideration paid for this conveyance must be held to include all such damages to the farm as would result inevitably from the construction and ordinary use of the railroad, including the obstruction to the ordinary drainage of surface waters upon the farm which could not be obviated by the exercise of ordinary skill in the construction of the railroad. Fitch v. Johnson, 104 Ill. 111, 121; Hadden v. Shoutz, 15 Ill. 581; Mills on Eminent Domain, Sec. 115; Railroad Co. v. Henry, 79 Ill. 290, and cases cited; Sutherland on Damages, 291; C. & E. I. R. R. Co. v. Loeb, 8 Ill. App. 627; J. N. W. & S. E. R. R. Co. v. Cox, 91 Ill. 500; Conwell v. S. & N. W. R. R. Co., 81 Ill. 232; O’Conor v. Railroad Co., 52 Wis. 526; Randle v. Railroad Co., 65 Mo. 333.
    The Kankakee & Seneca Railroad Company had the constitutional and lawful right to cross the Panzer Slough, and if necessary, to change the course of the slough if it did it in a manner prescribed by the statute. 1 Sutherland on Damages, 191; 3 Sutherland on Damages, 433; Babcock v. Ry. Co., 9 Met. 553; Keitsburg, etc., Ry. Co. v. Henry, 79 Ill. 290 ; Menkeiss v. Ry. Co., 72 Mo. 514; C. & E. Ry. Co. v. Loeb, 8 Ill. App. 627; I. C. Ry. Co. v. Bethel, 11 Ill. App. 17, and cases there cited.
    The injuries complained of are in no sense permanent injuries, because, conceding there was a diversion of the water upon the plaintiff’s land from the Parker Slough, the plaintiff could have easily remedied it. He sues for an injury to his reversionary interest. He has, as yet, sustained none. He was not in possession at the time of the injury complained of, and can only maintain an action when he shall acquire the possession. He had not, at the commencement of this suit, the actual possession or the right thereto. He has no right to assume that upon the reversion of the estate, the state of things complained of will exist, unless they are of such an obviously permanent character that they are immovable or irremediable and can not be relieved against.
    In this case there was no occasion to remove any obstruction either on or off the plaintiff’s premises. All he was required to do was to provide means for the escape of the water, which might have been done at a comparatively trifling expense, and this is the limit of his recovery for such injuries. C., R. I. & P. R. R. Co. v. Cary, 90 Ill. 514; Seely v. Alden, 61 Pa. St. 302; Fisher v. Thirkill, 21 Mich. 1, and cases cited; Pinney v. Berry, 61 Mo. 359; Cumberland v. Hitchings, 65 Me. 140; Brower v. Chandler, 3 Wis. 46.
    Messrs. S. C. Stough and E. M. Whig, for appellee.
    The difference between the market value of the freehold just preceding the commission of the alleged injury, and the market value of it subject to the injury, is what we understand to be the true measure of damages. Ill. Cen. R. R. Co. v. Grabill, 50 Ill. 241; The Chicago & Iowa R. R. Co. v. Baker, 73 Ill. 316; C., B. & Q. R. R. Co. v. McGinnis, 79 Ill. 269; C., M. & St. P. R. R. Co. v. Hall, 90 Ill. 42.
    The right to the market value of property is a present right, susceptible of proof other than by the actual sale of the thing itself. To hold that the damage sustained by appellee is not permanent, is, in effect, to deny him all remedy for this injury until he actually makes sale of his lands. Such a manifestly unjust rule can not be law. Ottawa Gas Light Co. v. Graham, 28 Ill. 73; I. C. R. R. Co. v. Grabill, 50 Ill. 241; C., R. I. & P. Ry. Co. v. Cary, 90 Ill. 514; Troy v. Cheshire R. R. Co., 23 N. H. 102.
    In the ease of Fowle v. New Haven, etc., Co., 112 Mass. 334, it was held that a railroad company on account of turning the stream of water upon plaintiff’s lands by the construction of its road-bed, was liable for damages on account of the permanent character of the injury.
    Hnless the damages were a necessary result from the exercise of the power of the grant of the right of way, it will be presumed that they were not included in tiie original compensation unless there is some proof to the contrary. Hooker v. N. H. & N. H. Co., 4 Conn. 146.
    When the defendant, who is primarily liable to do such work as will prevent damage, or is liable primarily to stay an injury resulting from his conduct, is in possession and has control of the structure causing the damage, or has equal knowledge and opportunity with the complainant, then he alone should be looked to for a performance of this duty. Under these circumstances it will avail the defendant nothing to say that the injured party might have lessened the injury by performing the duty for him. Myers v. Burns, 35 N. Y. 269; Hester v. Knox, 63 N. Y. 561; Schwinger v. Raymond, 83 N. Y. 192; Keyes v. Western Vt. S. Co., 34 Vt. 81; Haysler v. Owen, 61 Mo. 270; Smith v. Chicago, etc., R. R. Co., 38 Iowa, 518; Prest v. Nichols, 116 Mass. 401; Gardner v. Smith, 7 Mich. 410. See also, Green v. Mann, 11 Ill. 613; C. & R. I. R. R. Co. v. Ward, 16 Ill. 522, 527.
    But under no circumstances is the injured party required to perform any such work to lessen his damages as might render him liable as a trespasser. C., R. I. & P. R. R. Co. v. Carey, 90 Ill. 514; Wolf v. St. Louis, etc., Co., 15 Cal. 319; Hubbel v. Meigs, 50 N. Y. 480.
    An injured person suffering from unlawful drainage and injurious flowage of water need not ditch against it. City of Aurora v. Reed, 57 Ill. 29.
   Welch, J.

This was an action on the case brought by the appellee against the appellants, to recover damages for alleged permanent injuries to his farm of 240 acres, the farm, at the time the injuries are alleged to have been committed, being in the exclusive possession and occupation of the son of appellee, Frank Horan, as tenant. Frank Horan brought suit against thq appellants to recover damages for hindering him from cultivating portions of this farm, and for injury to and destruction of his growing crops, by the flooding, of his lands, alleged to have been occasioned by a diversion of the water from an ancient water-course, which suit was appealed to this court by the appellants, and was reversed. The opinion in that case will be found n 17 Ill. App. 650. In so far as the questions made in the case at bar are similar to those made in that case, and passed, upon by us, we see no reason to change or modify our opinion as expressed in that case, but adopt the same. The rule was announced in that case: “ Private property can not be taken or dámaged for public use without just compensation.” Article 2, Section 13, Constitution of 1870. “ That a railroad company has no right by an embankment, or other artificial means, to obstruct the natural flow of the surface water, and thereby force it, in an increased quantity, upon the lands of another; and if it does so, it is liable for any injury that the owner of the land may sustain by reason thereof.” Toledo and Western Railway Co. v. James C. Morrison, 71 Ill. 616. “ That the party who gives the right of way over his lands, or whose lands are condemned for right of way, will not 'be estopped from claiming damages, when, in the construction of its track, by its embankments, etc., it has caused the surface water from other lands to be diverted from their natural course and thrown upon his land.” J., N. W. & S. E. R. R. Co. v. John Cox, 91 Ill. 500.

The appellant, the Kankakee and Seneca Railroad Company, was organized under the general laws of this State, February 22, 1881, for the purpose of constructing a railroad from Kankakee to Seneca, a distance of about forty miles. The appellant, The Cincinnati, Indianapolis, St. Louis and Chicago Railway, extends from Cincinnati, Ohio, to Kankakee, in this State, Kankakee being its western terminus. The farm of the appellee was on the line of the Kankakee and Seneca Railroad. The construction of its line of road was begun in the summer of 1881, and completed in the fall of 1882. The appellee executed to the Kankakee and Seneca Railroad Company a deed on January 27th, 1882, to the right of way over his premises, in pursuance to an agreement therefor made in 1881. The injuries alleged to have been sustained by the appellee resulted from the construction of said railroad. The declaration contains six counts, each averring that there was a stream, slough, or water-course, which ran through his premises from time immemorial, by means whereof his premises were drained and he and his 'tenants were thereby enabled to cultivate large quantities of wheat, etc. That the appellants, well knowing the premises, but contriving and intending to injure and prejudice the appellee in his reversionary estate and interest in and to said premises, wrongfully and injuriously, with a certain line of track of railroad, called the Kankakee and Seneca Railroad, and the trenches, bridges and embankments thereof, by the defendants then and there built and constructed over, through and across the appellee’s farm, and said ancient streanj, slough, or water-course, obstructed, injured, narrowed, and filled up the water-course and natural channel thereof, and rendered it permanently incapable of carrying off large quantities of water, that was accustomed to fall upon said premises, and permanently incapable of draining, etc., said premises, as it was accustomed to do prior to said obstruction.

There was a verdict and judgment for the appellee for the sum of §4,000, from which this appeal is taken. We shall not examine, the various errors assigned in the order in which they are assigned. It is insisted by counsel for appellants, that the court erred in refusing to allow appellants to prove what it would have cost to have constructed a ditch on appellee’s premises from the railroad trestle-work entirely upon his own land without encroaching on the right of way of the railroad company, by which, it is claimed, the water might have passed through under the railroad at the trestle-work into the ditch, and thus have escaped into the Parker Slough by the continuation of the ditch to the slough." There was evidence tending strongly to prove that such a ditch would have fully drained appellee’s land and carried off all the water that came down onto his land from the railroad ditch.

The basis of the recovery in this case was the difference in value of the land before and after the construction of the railroad, on the ground that that would be the reasonable damage. In C., R. I. & P. Ry. Co. v. Carey, 90 Ill. 514, the court say: “In considering such depreciation it would be necessary to take into account the question whether the injury could be obviated in whole or in part by expending money to remove the obstruction. A person examining the farm with a view to purchase, would naturally make an estimate of the cost of restoring the drainage whether by litigation with the company, if the legal duty devolved on it * * * .or by expending money in making ditches and culverts, if the legal duty devolved upon the owner of the farm. So the jury should consider these questions in estimating damages. When there is a permanent injury that can not be remedied, of course r,tlie measure is the depreciation in the value of the property injured ; but when the cause of injury maybe removed at a reasonable expense by the party injured, that fact should be considered.” This states with accuracy the law as we understand it upon the subject of damages. The same rule is announced in Field on Damages, Secs. 120 and 127 et seq., and the cases cited. Seely v. Alden, 61 Pa. St. 305, 306. The damages assessed in this case was §4,000. Suppose appellee should be allowed to collect this and the next day, at a cost of §200, dig a ditch on his own land and fully relieve his land from water, and make it as good as it was prior to any claimed obstruction thereto. This would evidently be an inequitable result. The cost to appellee of the ditch, the value of the land used and the burden of maintaining it, would seem to be proper elements to be considered by the jury in estimating appellee’s damages. The distance the ditch would have to be dug did not exceed sixty rods. We do not think the rules announced in 57 Ill. 29-34, and in 91 Ill. 500, are in conflict with the rule a.s stated, supra. The ditch in the case in 57 Ill., supra, would have had to be dug on the property of another, and there was no claim in 91 Ill., supra, for permanent injuries. In view of what we have said the evidence offered by the appellants on this subject should have been admitted.

The 22d instruction asked by appellants and refused, was properly refused. It ignored the value of the land used for the ditch, and the costs of maintaining it. The instruction is as follows:

22. The jury are instructed that although they believe from the evidence that in consequence of the construction of the trestle work and railroad across the Parker Slough, and by the digging of ditches along the line of the railroad track, the water, to some extent, from said Parker Slough, or other sources,flowed along said railroad track and thence on to the land of the plaintiff, yet, if by the digging or construction of an artificial ditch, or by the opening of any artificial channel upon his own land, and without encroaching upon the right of way of the railroad company, or upon the property of any persons other than himself, the plaintiff could have drained said water so coming upon him into a channel of the Parker Slough upon his own land, or any other water channel upon his own land, and thus have prevented damage to him by reason of the said flow of water from said Parker Slough, or other sources, through the railroad ditches on to his land, and ■ at an expense of not exceeding §200, then with respect to such damages as resulted to him by such flowage of waters, if any, upon him, he is only entitled in this action to recover what it would have cost to have constructed such artificial ditch or channel upon his own land.”

Since this case was submitted to us, we have been furnished by the counsel for appellants with an additional authority upon the question contended for by him, that no recovery of damages for a permanent injury can be had in this case. We have carefully examined the question, and whilst the authority referred to in 101 N. Y, — Ursulin v. N. Y. C. & H. R. R. R., page 98, and cases there cited — seems to sustain that position, the Supreme Court of this State, in the case of C., R. I. & P. R. R. Co. v. Carey, 90 Ill. 514, say : “ If appellant has created such obstructions on his own land, appellees and the jury have the right to regard them as permanent and the one has the right to claim it as a permanent injury, and the other to allow damages as such.” The rule thus announced by the Supreme Court is binding upon us, whatever may be the rule in other States. In this State, it is not an open question ; it is stare decisis. The reason given for the rule is clearly stated in the authority, supra. “ If, however, the obstruction is on the right of way of appellant, appellees have no right to enter thereon to remove it, as the law will not require them to commit a trespass to remove the obstruction, even if it would, as contended, cost but a trifle. Aor can appellants require them to enter its right of way to remove obstructions; but when the cause of injury may be removed by appellee by expending money in making a ditch on his own land, the jury should consider this question in estimating damages. The cost of making the ditch, the value of the land used, and the burden of maintaining it, would be proper elements of damages in such case.

It is further insisted by counsel for appellants that the court erred in refusing the 21st instruction asked by appellants. We recognize to its full extent the rule announced in the case of the Illinois Central R. R. Co. v. Bethel, 11 Ill. App. 17, and re-announced in the case of The People, etc., v. The Utica Cement Company, post, page 159. When a corporation has exercised ordinary care in the construction or repair of bridges and culverts over water-courses, on its private land, and is not otherwise guilty of negligence it can not be made liable for damages occasioned an adjacent proprietor by extraordinary floods; but could only be held liable for the usual and expected freshets occurring in the usual course of the seasons in this country. The extraordinary floods being denominated Actus Dei. There was no evidence in this case upon which to predicate an instruction based on the rule announced, supra.

It is further insisted by counsel for appellants that the court erred in refusing to give the 17th instruction as asked, and in modifying same. The instruction as asked selected one fact shown in evidence by the appellee and informed the jury that such fact was not sufficient to charge the Cincinnati, Indianapolis, St. Louis & Chicago Eailway Company with liability under this declaration. There was error in this form of the instruction; each fact tending to prove an issue, however slight, when taken alone might not be sufficient, but when taken in connection with all the other facts tending to prove the issue, might be sufficient. If this mode of instruction was permitted each separate fact tending to support the issue might thus be taken from the jury. The instruction as asked should have been refused. The appellants were not injured by the modification.

It is claimed by counsel for appellants that the court erred in refusing to give the 23d instruction, which told the jury that there was no evidence sufficient to charge the said Cincinnati, Indianapolis, St. Louis & Chicago Eailway Company with liability. We do not understand that the case referred to in 110 Ill., of Simmons v. Chicago & Tomah R. R. Co., 340, absolutely requires the Circuit Judge to give such an instruction; and although we are of the opinion that the evidence on that subject, as shown in this record, is of an unsatisfactory and doubtful character, yet as this case will have to be reversed and remanded for the errors already indicated, we are disposed to leave that question to be determined by the trial judge on that trial.

There are a great many objections made to the admission of evidence. We do not consider them of sufficient importance to pass upon them seriatim. In the main the rulings of the, trial court were correct. Such unimportant errors as frequently occur during the trial, will doubtless be corrected on another trial. For the errors herein indicated this judgment is reversed and cause remanded.

Reversed and remanded.


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    Josiah Deyo v. Edwin Ferris.

      Statute of Frauds — Contract to floio Water through Drain across Another’s Land — Action to Recover Consideration — Evidence.
    1. An action does not lie to recover the consideration of a contract which is invalid under-the Statute of Frauds. Such contract does not bind either party, and can neither be made a ground of action nor defense.
    2. A parol contract for a right to flow water through a drain across the lands of another is void, such right being an interest in lands within the Statute of Frauds.
    [Opinion filed December 11, 1886.]

      Appeal from the Circuit Court of Stark County; the Hon. T. M. Shaw, Judge, presiding.
    Mr. Miles A. Fullee, for appellant.
    The right to flow water upon the land of another is an interest in land and can only be given by deed. Woodward v. Seely, 11 Ill. 157; Albertson v. Ashton, 102 Ill. 50, 57 ; Tanner v. Volentine, 75 Ill. 624.
    A right to flow lands must be in writing. French v. Owen, 2 Wis. 250; Clute v. Carr, 20 Wis. 531.
    Yerbal contracts in relation to lands are not considered absolutely void, but will be considered obligatory until some act is done by one of the parties in derogation of them, and if relied upon in legal proceedings, will be held valid unless their validity is put in issue by plea. Wheeler v. Frankinthal, 78 Ill. 124; Collins v. Thayer, 74 Ill. 138.
    Yet,, for all purposes of their enforcement, they are practically void, since no action can be brought to enforce them. Rev. Stat., Chap 52, Sec. 2. Neither can they be made the basis of a defense any more than of a demand. Wheeler v. Frankinthal, 78 Ill. 124.
    The plaintiff has no right to recover because the contract is void at the election of either party, and the defendant having chosen to' repudiate it, no action can be founded upon it.
    Mr. John E. Decker, for appellee.
    A promise to pay for improvements on land is only a promise to pay for work and labor and not for an interest in land, and therefore need not be in writing. Frear v. Hordenburg, 5 Johns. 272; Benedict v. Beebee, 11 Johns. 145; Lower v. Winters, 7 Cow. 263; Bannon v. Morton, 3 Iowa, 228; Sutton v. Sears, 10 Ind. 223 ; Boze v. Davis, 14 Tex. 331.
    A parol contract, which the statute requires to be in writing, is as good as any when performed, or while being performed, or when partly performed, so far as the performance goes. Swanzy v. Moore, 22 Ill. 65.
    When a contract originally within the statute has been executed, and nothing remains to be done but the payment of the consideration, this may be recovered. Bracket v. Evans, 1 Cush. 79; Preble v. Baldwin, 6 Cush. 549; Linscott v. McIntyre, 55 Me. 201; Thayer v. Viles, 23 Vt. 494; Thomas v. Dickinson, 14 Barb. 90 ; Gillespie v. Battle, 55 Ala. 276; Moore v. Ross, 11 N. H. 655.
   Lacey, J.

The parties to • this suit both reside in Stark County, the appellee owning land adjoining appellant’s on the south. The east line of the land of each is the county line between Marshall and Stark counties, and there is a public road on this line running north and south. The appellee had a. large open ditch running down across his land emptying into a creek, the upper end of the ditch coming to within twenty or twenty-five feet of appellant’s land, the latter’s land north of appellee’s being wet, and the natural flowage of the water being from appellant’s land over that of the appellee in the direction of the ditch. Suit was commenced by the appellee against the appellant to recover on a contract between them concerning the opening and extending the ditch from the former’s land to that of the latter, on a claim of $75.

From the Justice an appeal was taken to the Circuit Court, and there the case was again tried by the court without a jury, the jury being waived, resulting in a finding and judgment for appellee. From this judgment this appeal is prosecuted.

The contention of appellee is that in consideration of the sum of $75 he, by verbal contract,- agreed to dig and extend the ditch above mentioned on to the land of the appellant for that sum, to be paid by the appellant, and that in pursuance of such agreement he had executed the work, and therefore has a right to recover. On the other side, appellant claims that the contract was that the consideration for opening the ditch to his land was a perpetual outlet for water from his land through the appellee’s ditch, but that he was not to pay the $75 till he used it by putting his .tile iii on his own land emptying into the ditch, and that he had not when the suit was brought, or since, put any tiling in which emptied into the ditch.

There was evidence tending to show eacu theory of the case, not necessary here to recite. It appeared in evidence that the time occupied in digging the twenty or thirty feet of ditch occupied about one day’s time for one man.

The appellant insists that the finding of the court below was contrary to the weight of the evidence.

First, in this: if the evidence shows, and looking at the worst side of the case for him it can show no more than tnat the consideration of the contract was that the appellant’s water from his land was to flow through appellee’s ditch to the creek, then the contract was obnoxious -to the Statute of Frauds, because it was an agreement to acquire an interest in land for a longer term than one year; and that the -contract was not in writing. This being an appeal from a Justice of the Peace, and of course no written pleadings being-required, the appellant could insist on the Statute of Frauds on the hearing, which it will nave to oe considered he has done. We will consider what matter of fact the court would be justified in finding from the evidence. Wouid the court be justified in finding that .the contract was as claimed by the appellee, that the consideration of $75 was simply ror doing the work of digging this small portion of the ditch only requiring one day’s work by one man ?

It would seem quite unreasonable that appellant would give or appellee ask §75 for so small a consideration.

We think that the court would be justified in finding from the evidence that the real substance of the agreement and what the parties had in contemplation was that the appellant should have a perpetual right to drain, by means of his tiling in his own land, the water therefrom into the ditch of appellee and that it should have the perpetual right to flowage through such ditch on appellee’s land, and this including the completion of the drain by appellee. Beyond this the evidence would not justify the court in going. We think the finding might be reasonably against appellant on his claim that he was not to pay for the work till he put in his own tile.

If, then, the' court found the contract as we suppose the evidence only justified, it would be a parol contract for interest in land for a longer term than one year, and obnoxious to the Statute of Frauds. Eevised Statutes, Chap. 59, Sec. 2. The right to flow water over the land of another or to keep open a drain for drainage purposes is certainly an interest in land under the Statute of Frauds. Woodward v. Seely, 11 Ill. 157.

While an easement in some cases may be removed and relinquished by a parol agreement and thus restore each party to his original and natural condition, an easement can not be thus created. Albertson v. Ashton, 102 Ill. 50, 57; Tanner v. Volentine, 75 Ill. 624; Woodward v. Seely, 11 Ill. 157.

In Freyer v. Warne, 29 Wis. 516, the question presented was similar to this. Freyer owned land on which was a pond which overflowed across the land of Warne. Warne and his grantor gave parol permission to Freyer to ditch across and drain over his land, which he did for seventeen years. Warne finally threatened to close up the ditch and Freyer enjoined him. It was held that this case was a mere parol license that might be revoked at any time. See French v. Owen, 2 Wis. 250; Clute v. Carr, 20 Wis. 531. Where the contract is within the. Statute of'Frauds it can neither be made the ground for action nor defense. Wheeler v. Frankinthal, 78 Ill. 124. For all practical purposes it is void.

“ A contract void under the Statute of Frauds is a mere nullity and can not be used for any purpose.” Scott v. Bush, 26 Mich. 421. We regard the new easement sought to be obtained by this contract as a different one from the one appellant had by nature for the natural flowage of his water across appellee’s land. The natural one was the only one he could claim; but it was entirely inadequate to drain his land so as to render it as dry as he desired or as it should be for successful cultivation. Appellant’s original easement was the only one he could insist on being maintained. The appellee might fill up the ditch at any time with impunity and remit the appellant to his original rights. Suppose the appellee had filled up this ditch before this suit was brought, then could he have demanded payment of appellant? The hardship of the case would then appear in the most glaring light. Yet this is exactly what he may do so soon as he gets payment or in fact at any time. If the appellant pay this demand he would not secure the right to the perpetual use of the ditch.

If the contract is void as to appellee, so it is void as to appellant as all contracts must have mutuality. They must be binding on each party or on none. Appellant may annul it at any time and refuse payment as well as appellee may fill up the ditch. Then we see that the contract, which the court alone was justified in finding from the evidence existed, was void under the Statute of Frauds and could not be enforced on either side. The court was not justified from the evidence in finding for the appellee to the extent of §75, but the contract having been repudiated the most the court could find for appellee would be the small amount that the labor in opening up this ditch to and on appellant’s land, by his request, was reasonably worth.

Because the finding of the court below was contrary to the evidence the judgment is reversed and the cause remanded.

Reversed and remanded.


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    The People of the State of Illinois v. The Utica Cement Company.

      Canal — -Sec. 16, Chap. 19, R. S- — Construction—Negligence—Act of Providence■ — Instructions.
    1. Sec. 16, Chap. 19, R. S., prohibiting acts by reason of which any substance may be washed into the canal, is highly penal in character and can not be extended by construction. It does not make it an offense to do that which without the statute is innocent and lawful, and which of itself could work no injury to any one. The acts prohibited by said section are only such as might be done on the property under the control of the commissioners. As to acts done on their own property by citizens their liability remains unchanged.
    2. In a proceeding to recover the penalty provided by said section, it is held: That the defendant in the use of its own property was not required to foresee and provide against unusual, extraordinary and unexpected floods; that a concurrence of negligence with the act of Providence was necessary to charge the defendant; that an act of Providence, within the meaning of the rule exempting the defendant from liability, was not necessarily an unprecedented flood or freshet; and that there was no error in giving and refusing instructions.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of La Salle County; the Hon. Geobge W. Stipp, Judge, presiding.
    Messrs. Bull, Stbawh & Bugeb, for appellants.
    Messrs. Mato & Widiheb, for appellee.
   Welch, J.

The only questions presented fa*’ our consideration upon the assignment of errors on this record are those arising upon the instructions. We shall consider them in the order presented. It is first insisted that the court erred in giving the eleventh instruction for the appellee, and also in refusing to give the qualification thereto, asked by the appellants. The eleventh instruction, as given, was as follows:

11th. Althoúgh' the jury may believe, from the evidence, that the Illinois and Michigan canal has been damaged by the flow of the waters of the creek in question, still, if the jury further believe from the evidence that such damage was wholly caused by the natural flow of the waters of said creek, either from the breaking away of a dam or dams not erected by the defendants, and not on property controlled or owned by them, or from unusual or unprecedented floods or storms, and that such damage was caused without any act or acts of the defendants contributing thereto, then the jury should find for the defendants. The defendants had the right to use their own land in a reasonable manner, for the purpose of depositing thereon waste matter from their factory; hut in so doing it was their duty so to deposit it that in times of usual, ordinary and expected freshets it would not be carried into the canal, nor cause other matter to be carried therein; but they were not bound so to place it that an unusual, extraordinary and unexpected flood might not carry it into the canal, or make it cany other matter therein. So, if the jury believe from the evidence that the defendants, by themselves or any of them or by their agents, so placed their waste matter that it was carried by the waters of the creek, or caused other matter to be carried by the waters of the creek into the canal during any ordinary stage of water, or during any freshet or flood which might reasonably be expected to come in said creek according to the natural course of the seasons of this country, then the jury should find for the plaintiffs” as to such matter so carried into said canal. But if the jury believe from the evidence that the defendants so placed their waste matter that it was Carried into the creek, or caused other matter to be carried therein, only by reason of an unusual, extraordinary and unexpected flood, according to the natural course of the seasons of this country, then the jury will find for the defendants as to such matter so carried into the canal, such last described flood being in law an act of Providence for which no one is responsible.”

Appellants asked, and the court refused to qualify the foregoing instruction, as follows: But if the unusual or extraordinary floods, or the act of Providence, would not have caused such material to be carried into the canal if the surface of the valley of the creek had been left in a state of nature, and if the evidence shows that there were changes made in the surface of the valley of the creek, and that such changes were made, or caused to be made, by the defendants, and that such changes caused such material to be carried into the canal by the waters of said creek, then the defendants are liable and the verdict must be for the plaintiffs.”

The acts of appellee, the TJtica Cement Company, complained of, were done on its own premises and in the pursuit of a lawful business. We hold that in the absence of any statutory provision on the subject, the liability of the appellee is to be measured by the maxim, Sic %itere iuo, ut alienum own IcecLas; that the duty imposed upon appellee in the use of its own property was to foresee and provide for such freshets or floods as might reasonably be expected to come, according to the natural course of the seasons in this country; and that the appellee was not required to foresee and .provide against unusual, extraordinary and unexpected floods. The appelleeshowed that at the time when the greatest damage was done there were unusual and extraordinary floods, and an unusual, extraordinary and unexpected amount of water. The condition of exemption from liability for injury arising from the use of one’s own property is the use or appropriation of the property in a reasonable, usual and proper manner without negligence or malice.

“ The distinction is vital,” says Thomas, Justice, in Bock-wood v. Wilson, 11 Cush. 221, “ for nothing is better settled than if one does a lawful act upon his own premises he cannot be held responsible for injurious consequences that may result from it unless it was so done as to constitute actionable negligence.” Sharswood, in Livezey v. Philadelphia, 64 Pa. St. 106, says: “The concurrence of negligence with the act of Providence, when the mischief is done by flood or storm, is necessary to fix the defendant’s liability.”

The authorities referred to by the appellants showing liability are all in harmony with the rule here announced. In those cases there was a concurrence of negligence with the act of Providence. The eleventh instruction as given, accurately states the appellee's liability under the maxim, supra. The jury were told that the appellee had the right to use its own land in a reasonable manner for the purpose of depositing thereon waste matter from its factory, but in so doing it was its duty to so deposit it that in times of usual, ordinary and expected freshets it would not be carried into the canal, nor cause other matter to be carried therein, and that as to the waste matter so placed that was carried into the canal by the waters of the creek, or that caused other matter to be carried by the waters of the creek into the canal, during any ordinary stage of water or during any freshet or flood which might reasonably be expected to come in said creek, according to the natural course of the seasons in this country, that as to such matters so carried into said canal appellee was liable; but as to such waste matter so placed as that it was carried, or caused other matter to be carried therein, only by reason of an unusual, extraordinary and unexpected flood according to the natural course of the seasons in this country, that as to such matter so carried into the canal, appellee was not liable, such floods being in law an act of Providence. Applying the maxim thereto, Actus Dei nemini facit injuriam.

It is, however, insisted by counsel for appellants that Secs. 16 and 28 of Chap. Í9, Revised Statutes of 1874, required that the rule announced in this instruction should be qualified and the qualification referred to, supra, was asked: “ If the act of Providence would not have caused such material to be carried into the canal but for the change in the valley made by defendants depositing material therein, then the appellees could not so excuse their liability. Sec. 16 of Chap. 19 of the Revised Statutes of 1874 provides that whoever,” without the written consent of the Canal Commissioners, digs any drain or ditch, or receives or deposits any earth, sand, gravel or other material, or causes the same to be done, whereby any substance is washed into the canal to the injury of the same, shall, for each offense, be fined not exceeding 8100.” And Sec. 28 of the same act, reads: “ Whoever is guilty of any offense created by this act' shall also be liable for all damages occasioned thereby.”

[The liability under this act for damages is imposed only on those guilty of an offense created by the act. This statute is penal and can not be extended by construction, but must be strictly construed. Chicago & N. W. Ry. Co. v. Starnbro, 87 Ill. 195; People v. Peacock, 98 Ill. 172. Applying this rule to this statute, we hold that section 16 was not designed nor intended to make it an offense punishable by fine to do that which without this statute would have been in itself innocent and lawful, and which without actus Dei could work injury to no one. The offense created by other sections of the act are only such as may be committed on the property of the State, and we hold that the acts intended to be prohibited by this section were only such as might be done on the property under the control of the Commissioners, and that it was not intended to confer on those officers any authority to interfere with the rights of the citizens in the lawful use of their property. As to acts done on their own premises their liability remained as it was before the act.

It is- farther insisted by counsel for appellants that in order to constitute an act of Providence for which appellee is not liable, the storm, flood or freshet must be something more than unusual, extraordinary and unexpected; it must be of an unprecedented character. We should adopt as our answer to this objection the language of Agnew, J., in the case of Pittsburg, Ft. W. & C. R. R. Co. v. Gilleland, 56 Pa. St 445. There were in that case three floods occasioning the injury— one in June, another in July and another in the latter part of the summer of 1866. An instruction was held erroneous that in effect left the jury to find a liability for damages from extraordinary floods because a second and third came in rapid succession. Agnew says: If all were extraordinary, as the instruction conceded, the surprise of the second and third could not be less than at the first, and it was still more surprising that they should come in such 2‘apid succession. Being extraordinai’y, neither second nor third could have been expected more than the first.”

It is also urged by appellants that the court erred in reading the eleventh of appellee’s instructions as a modification to each of appellants’ instructions numbered one, two, three and four. There was no error in this; without this modification these instructions would have been misleading.

It is also insisted that the court erred in giving the seventeenth and eighteenth of appellee’s instructions. These instructions announce the rule that the liability of appellee was not changed by reason of the State being the plaintiff. That no greater liability was created than there would have been if the suit was by a private person as plaintiff. The fifth of appellants’ refused instructions announced an opposite rule. In the view we take of this case there was no error in the giving of the seventeenth and eighteenth instructions for the appellee, and in refusing to give the fifth instruction for appellant.

We do not think that the fourteenth and fifteenth instructions given for appellee could have misled the jury, or that they are susceptible of the construction sought to be placed upon them. Even if there was a doubt as to the proper construction of an instruction given on behalf of one party, yet if the instructions given on behalf of the other party remove such doubt there is no error. Latham v. Loach, 72 Ill. 179. We are of the opinion after a careful consideration of this case, that the law was clearly and accurately stated to the jury.

Judgment affirmed,.


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    Michael Geelan v. Isabell Reid.

      Statute of Frauds — Original Promise — Evidence—Question for Jury.

    1. Where the evidence is conflicting its credibility and weight are for the jury.
    2. An original undertaking, although for the benefit of another, is not within the Statute of Frauds.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kankakee County; the Hon. Aleked Sample, Judge, presiding.
    Messrs. Haley & O’Donnell, for appellant.
    A party suing upon a verbal promise to pay the debt of another can not hold the party to whom the consideration immediately passed and the party making the verbal promise both liable to him for the debt. If appellee looked to Cleary for her debt, charged it to Cleary, submitted her bill to Cleary, collected part of the money from Cleary, and only sought to hold appellant in the event that Cleary should fail to pay, then this case clearly comes within the statute. Chilcote v. Kile, 47 Ill. 88; Eddy v. Roberts, 17 Ill. 504; Williams v. Corbet, 28 Ill. 262.

      Messrs. William Pottee and H.K. Wheelee, for appellee.
   Welch, J.

This was an action of assumpsit brought by the appellee against theappellant to recover for board and attention furnished by the appellee to Michael Cleary as claimed at the inquest of the appellant. Verdict and judgment for the appellee, from which the appeal is taken. On the night of the 4th of July, 1883, Michael Cleary, a single man and a brother-in-law of appellant, was brought to the boarding house of the appellee with his leg crushed by the cars. Two physicians were called and his leg was amputated. On the following morning at about four o’clock appellant, in response to a summons from appellee, came to her house to see his brother-in-law, Cleary, and whilst he was there, 'as testified to by appellee and two other witnesses, said- to her, “ Do all you can for hhn and I will see-you paid.” She took care of him and did all she could for him from that time until the 28th of August when appellant took him away. Appellant denies that he made any such promise. Whether the promise was made or not was a question of credibility of witnesses, and was a proper question for the jury. They decided against the appellant, and we do not feel inclined to disturb their finding. The question as to whether the promise, being parol, was void, is a question of law which must be determined according to established principles.

It is claimed on behalf of appellant, that even if he made the promise, as claimed, he is not bound under the first section of the Statute of Frauds. , That the promise was not an absolute but only a collateral one, and not being in writing, was void. This question is not an open one in this State. The exact point was decided in Hartley v. Allen Varner, 88 Ill. 561. There the language was “if plaintiff would sell him (Heubottom) goods he would see it paid.” It was held in that ease that as to goods subsequently sold to Eeubottom the promise was original and not collateral and was unaffected by the statute, supra. Williams v. Corbett, 28 Ill. 262; Hughes v. Atkins, 41 Ill. 213. We hold that the promise in this case was an original one and not affected by the Statute of Frauds. The instructions of the court were substantially correct. The case was fairly submitted to the jury.

Judgment affirmed.


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    M. C. Getzleman v. Frederick Shuman.

      Landlord and Tenant — Distress—Evidence—Admission—Compromi se— Instructions.

    In an action of distress for rent, it is held: That evidence concerning an alleged statement of accounts tending to show an admission of indebtedness by the defendant was properly admitted; that such admission was not made by way of compromise; that, if said evidence was erroneously admitted, it worked no injury; that an instruction having no basis in the evidence was properly refused; and that another instruction was properly modified by the court.
    [Opinion filed December 11, 1886.]
    , Appeal from the Circuit Court of Kane County; the Hon. Isaac G-. Wilson, Judge, presiding.
    Messrs. R. U. Botseord and A. H. Barry, for appellant.
    The rule is familiar, that on cross-examination the opposite party will not be permitted to go into new matter nor introduce testimony which is a substantive part of the defense. Drohn v. Brewer, 77 Ill. 280; Peru Coal Co. v. Merrick, 79 Ill. 112; Lloyd v. Thompson, 5 Ill. App. 90.
    In the case of Bell v. Prewitt, 62 Ill. 361, the case was reversed because this rule of cross-examination was violated.
    It is well settled by the decisions of the courts of this State that the admissions of a party are never conclusive against him when made for the purpose of effecting a compromise of matters in dispute, and any offer made for the purpose of matters in dispute, and any offer made for the purpose of avoiding litigation is not competent evidence and such evidence should be excluded on the ground of public policy. City of Peru v. French, 55 Ill. 317; Rockafellow v. Newcomb, 57 Ill. 186; Paulin v. Hawser, 63 Ill. 312; Barker v. Bushnell, 75 Ill. 220.
    Messrs. Johh Gilkersoh and" Charles H. Wayhe, for appellee.
    The voluntary admissions of a party to a suit are competent as evidence against him even if made during an effort to compromise. Robbins v. Butler, 24 Ill. 387; Pearson v. Chapman, 21 Ill. 650; Ashlock v. Linder, 50 Ill. 169; Hyde v. Stone, 7 Wend. 354; Marvin v. Richmond, 3 Den. 58
   Welch, J.

This was a suit brought by the appellant against the appellee for rent in an action of distress before the rent was due, alleging the crops were being removed to the detriment of the appellant. Plea in abatement, non-assumpsit and set-off filed by appellee and an agreement that all matters of defense may be given in evidence under the general issue and the special plea. Appellant joined issue to the plea of general issue and filed replication to plea of set-off and by leave of court a replication of set-off to such plea. Tried by jury— verdict for the appellee for the sum of §248.69, on which verdict the court rendered judgment.

The appellant appeals" to this court and assigns error on the admission of testimony on the trial and the giving and refusing of instructions. Did the court err in the admission of evidence? Appellant complains that on cross-examination of the appellant the appellee was allowed to go into an alleged statement of accounts between the parties for the purpose of showing that the appellant had made an admission of an indebtedness to the appellee. His statements were made in answer to this question“ Did you have a conversation with John Gilkerson at his office in Hampshire, about October, 1884, in which you admitted that after a fair adjustment of all matters between you and Shuman, there was still a balance of somewhere about §60 due Shuman?” This question was proper and could have been answered by yes or no. Whatever statement lie made in relation to the matter was in response to that question. He chose to avoid giving a direct answer, but chose to relate what did happen, and what conversation he did have.

It is also claimed by the counsel for appellant that the court erred in admitting the testimony of Gilkerson as to the conversation he had with the appellant at the time specified in the question, supra, and in not excluding the answer of the appellant to said conversation, for the reason, as claimed, that the admission was made for the purpose of effecting a compromise of matters in dispute, and was -not therefore competent. We do not consider the point well taken. The admissions were not made by way of compromise. It was not so stated. Appellant had been requested to pay an account to the appellee, after having in his possession a copy of the account for several days, and after striking a balance between the account which he claimed to have against appellee and so much of appellee’s account as he admitted, he made the admission of the balance due appellee. Robbins v. Butler, 24 Ill. 387; Ashlock v. Linder, 50 Ill. 169; Ray v. Bell, 24 Ill. 444. Even should it be conceded, which we do not, that the evidence was improperly admitted, it worked no injury. The judgment was for more than the amount admitted due.

There was no error in refusing the instruction asked by the appellant based on the idea of admissions and declarations made for the purpose of avoiding litigation, and with the desire to reach an amicable adjustment, etc. There was no evidence on which to predicate such an instruction.

It is next insisted by counsel for appellant that the court erred in modifying the fourth instruction asked by appellant for the reason, as claimed, that by the stipulation, appellant was not required to prove the existence of the grounds on which he based his distress warrant. We do not so understand the stipulation. There was a plea filed and verified denying the grounds on which the distress warrant issued. Appellant’s counsel must have understood that he was required to prove the grounds of his first, second and third instructions, and submit that question to the jury as one of fact upon which, they were called on to pass in making up their verdict. The modification to the fourth made it speak the same language to the jury on that question, which the first, second and third had spoken. There was no error in this.

We are not asked to review the facts; finding no error of law, judgment affirmed.

Affirmed.


author: Baker, P. J.

text:
    Robert Walsh v. John Van Horn.

      Mortgages — Foreclosure of — Joinder of Third Persons — Jurisdiction—■ Sec. 16, Chap. 95, £. S. — Proviso—Office of.

    1. It is the office of a proviso in a statute to limit the body of the act or antecedent clauses.
    2. It is only by virtue of an express provision of the statute, or facts giving equitable jurisdiction, that a third person, liable for the mortgage debt, can be joined as a party defendant in a foreclosure proceeding.
    "3. Sec. 16, Chap. 95, R. S., does not give the right to join in foreclosure proceedings, third persons who are legally liable for the payment of the mortgage debt, to charge them with the payment of the residue of the debt remaining unpaid after the application of the proceeds of the mortgaged property.
    4. It seems that the object intended by the proviso in said section was to limit the jurisdiction of the court to the entry of a personal decree to such defendant or defendants, who are personally liable, as are before the court for the purposes of foreclosure and on equitable grounds.
    [Opinion filed January 8, 1887.]
    Appeal from the Circuit Court of Will County ; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Haley & O’Donnell, for appellant.
    Mr. Thomas H. Hutchins, for appellee.

      An absolute guarantor of the payment of a note becomes personally liable to the holder for the amount of the note, and can be sued in the first instance without reference to the maker. Rich v. Hathaway, 18 Ill. 548 ; Parkhurst v. Vail, 73 Ill. 343; Stowell v. Raymond, 83 Ill. 120.
    Hnder a statute in Hew York quite similar to ours, providing for a decree for a deficiency, it was held a decree for a deficiency may be had over against a grantee from a mortgagee. Halsey v. Reed, 9 Paige, 446 ; Curtis v. Tyler, 9 Paige, 432 ; King v. Whitley, 10 Paige, 461; Vail v. Foster, 4 N. Y. 312; Belmont v. Cornan, 22 N. Y. 438.
   Baker, P. J.

William .Galligher executed a promissory note for 8560, on the 25th day of March, 1875, due in five years and payable to Robert Walsh, the appellant; and Galli. gher and his wife, in order to secure its payment, gave amortgage upon a lot in the city of Joliet. On the 14th of April, 1875, appellant sold and assigned the note and mortgage to John Van Horn, appellee herein, and it is a matter of dispute between the parties whether, in the transaction, appellant assumed the liability of a guarantor, or only that of an indorser.

Appellee filed a bill to the September term, 1882, of the Will Circuit Court, making William Galligher and Bridget Galligher, his wife, and appellant Walsh, parties defendant, and asking foreclosure of the mortgage, and for a personal decree against both William Galligher and appellant, and that for any balance unpaid after the sale of the mortgaged lot he might have execution against both. Appellant filed a special demurrer to the bill, which was overruled by the court; and thereupon he interposed an answer in which, among other things, he denied the right of appellee to a personal decree against him for any unpaid balance of the mortgage debt. On the hearing a decree of foreclosure, and for the sale of the lot was rendered. Hpon the coming in of the report of the master in chancery of the sale made by him of the mortgaged premises under the provisions of this decree, the court found there was a deficiency of 8589.06, and entered a personal decree therefor against both William G-alligher and appellant, and awarded execution against them. From this latter decree, Walsh, alone, prosecuted this appeal.

It is only by virtue of an express provision of statute, or where there are facts giving equitable jurisdiction over the demand, that a third person liable for the mortgage debt can be joined as a party defendant in a foreclosure suit, and a judgment be recovered against Kim for a deficiency. In the absence of such statute and of circumstances giving jurisdiction to the court of chancery, there is a misjoinder of causes of action. 2 Jones on Mortgages, sections 1710 and 1711, and authorities there cited.

In this case there are no circumstances of equitable jurisdiction. Whether the responsibility .of appellant for the payment of the note was that of an indorser or that of a guarantor, it was a purely legal liability and enforcible in a court of law. It does not change the case even if his contract was an original undertaking and one upon which he could be sued in the first instance and without reference to the maker. It would simply be a promise distinct from those embodied either in the note as originally given or in the mortgage, but one containing no element that would make it cognizable in the chancery court. Leonard v. Morris, 9 Paige, 90, is not in point, as the decision was based upon an express provision of the statute of Mew York. The cases cited by appellee, wherein the vendee of the mortgagor agreed to pay the mortgage debt, are not parallel with and have but slight resemblance to the case under consideration, for in those cases the chancery jurisdiction arose from the fact that the legal obligation of the vendee to the mortgagor incurred in equity to the benefit of the mortgages, and no circumstances exist in this litigation that call for or permit the application of that equitable principle.

The only statutory provision that is claimed to justify the decree against-appellant is Sec. 16 of Chap. 95 of the Revised Statutes. That section, as we understand it, does not in terms or by implication give the right to join in the foreclosure suit, third persons who are legally liable for the payment of the mortgage debt, for the purpose of obtaining a decree against them for the residue of the debt remaining unpaid after all the mortgaged property has been exhausted. There is nothing whatever in the body of the section tending in the slightest degree in that direction, and the only language used upon which the claim of appellee can be based is that found in the proviso at the close of the section, and which reads as follows: “Provided, That such execution shall issue only in cases where personal service shall have been had upon the defendant or defendants personally liable for the mortgage debt, unless their appearance shall be entered in such suits.”

A proviso is a clause which generally contains a condition that a certain thing shall or shall not be done in order that something in another clause shall take effect; it implies a condition and defeats the operation of the antecedent clause conditionally; it avoids such antecedent clause by way of defeasance. See Bouvier’s Law Dictionary. In Boon v. Juliet, 1 Scam. 258, the court said that a proviso is intended to qualify what is affirmed in the body of an act, section or paragraph preceding it, and is intended as a mere limitation. In Sedgwick on Statutory and Constitutional Law, 62, it is said, quoting from the opinion of the Supreme Court of the United States in Voorhees v. Bank, 10 Pet. 449: “A proviso in deeds or laws is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate or the other be exercised unless in the case provided.” In Wayman v. Southard, 10 Wheat. 1, 30, it was said that the proviso is generally intended to restrain the enacting clause.

It being the office of a proviso to limit the body of the act or antecedent clause, and in no sense its proper function to extend them, it should not be held to have this latter effect unless it appears from an inspection of the whole act, with reasonable certainty, that such was the legislative intention. The words, “ the defendant or defendants personally liable for the mortgage debt,” occur only in the proviso, and from a consideration of what the law was prior to and at the time of the enactment, the language used in the purview or body of the act, and more especially the context of the proviso itself in which the words quoted are used, we think.it clear the only object intended to be accomplished by the proviso was to prevent and forbid the entry of a personal judgment or decree upon mere constructive service, and that the words, “the defendant or defendants personally liable for the mortgage debt,” have reference only to such defendant or defendants personally liable for the debt as are before the court for the purposes of foreclosure and upon equitable grounds.

We are of opinion it was error to enter a decree against appellant, Walsh, for the deficiency due and unpaid upon the mortgage debt, and award execution therefor against him.

For this error the decree, as against him, is reversed.

Reversed.