text:
    The People of the State of Illinois, Defendant in Error, v. Ola Nylin, Plaintiff in Error.
    Gen. No. 4,874.
    1. Amendments and jeofails—power of court to permit amendment of information. It is within the discretion of the trial judge to permit the amendment of an information. An information does not rest upon the same basis as an indictment.

      2.. Practice—when motion for continuance properly denied. A motion for a continuance is properly denied where a stipulation is made by opposing counsel conceding all that could have been obtained by the granting of the motion.
    3. Practice—when defendant must first examine talesmen. Having broken a panel by a challenge, it is the duty of the defendant to tender back a full panel, and, therefore, he must first examine the talesmen called to supply the place of the one challenged.
    4. Dram-shop Act—when intent and good faith not material in prosecution under. The intent or good faith of the accused is not material in a prosecution for selling intoxicating liquors outside of the limits of an incorporated city in quantities of less than five gallons.
    5. Dram-shop Act—instruction in prosecution under, approved. An instruction as follows, approved.
    “The court instructs the jury that it is the law in this case that any shift or device to evade the provisions of the statute to not sell less than five gallons of intoxicating liquors is an unlawful selling, and if you find from the evidence in this case, beyond a reasonable doubt, that the defendant by himself or another, either as principal, clerk, or servant, in any manner disposed of for money or other things of value any intoxicating liquors in less quantities than five gallons, as charged in the information, by any shift or device, then you should find the defendant guilty.”
    Criminal prosecution under section 16 of Dram-shop Act. Error to the County Court of Mercer County; the Hon. R. C. Rice, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Cooke & Wilson, for plaintiff in error; Alex McArthur, of counsel.
    William J. Graham, State’s Attorney, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

An information containing thirty-six counts was filed in the County Court of Mercer county, charging Ola Nylin, plaintiff in error, not having a license to keep a dram-shop, with having unlawfully sold intoxicating liquor in less quantities than five gallons outside of any incorporated city, town or village, in violation of section 16 of the Dram-shop Act. The plaintiff in error was found guilty on counts 27 to 33, inclusive, and a fine of $75 on each count assessed against him.

The information was indorsed “filed July 17th” when it was in fact filed “August 17th” and the jurat to the affidavit on the hack of the information was dated “Dec. 17th, 1906,” instead of August 17th. A motion was made by the State’s attorney to amend the date of filing and the jurat to the affidavit to make them correspond with the true date at which the affidavit was sworn to and the information filed. This motion was allowed and the dates were amended, showing that the affidavit was sworn to August 17th and the date of filing was changed to August 17th, the time it was in fact filed.. No verification being necessary, there was no error in permitting the amendment. Long v. The People, 135 Ill., 435; Samuel v. The People, 164 Ill., 379.

It is assigned for error that the court erred in overruling a motion made by plaintiff in error for a continuance. Counts 34, 35 and 36 charged violations of law on dates subsequent to July 17th. The plaintiff in error’s ground for a continuance was that he was not prepared to meet the case presented by these three counts. Thereupon these three counts were nolle prossed by the State’s attorney, and it was stipulated on behalf of the people that no proof should be introduced of any violation subsequent to July 17, 1906, and the court thereupon overruled the motion for a continuance. The stipulation by the people conceding to the plaintiff in error all that he desired to obtain by a continuance, the court properly denied the motion for a continuance.

It is insisted on behalf of plaintiff in error that the court erred in causing’ plaintiff in error to pass upon a juror before the people passed on him. Two panels of four jurors had been accepted by both parties. The people examined the third panel of four and tendered that panel to the plaintiff in error. The plaintiff in error having exhausted all his peremptory challenges, challenged for cause a juror of the last panel tendered without any further examination, on the ground that the juror had stated he had an opinion based upon rumor although the juror had stated he could try the case fairly and impartially. The court asked the juror if he had expressed his opinion, and the juror answered he had; the challenge of plaintiff in error for cause was allowed. Another juror, a talesman, was called into the hox. The plaintiff in error insisted that the people must first examine and accept the juror called in place of the juror excused on the challenge of plaintiff in error, but the court compelled plaintiff in error to first pass upon him. The statute provides that the jury shall be passed upon and accepted in panels of four by the parties, commencing with the plaintiff. This act is applicable to both civil and criminal causes. Statute, chapter 18, sections 21 and 23. The people having accepted the panel, it was the right of plaintiff in error to accept the jury or to challenge any juror that had shown cause. Having challenged a juror and the challenge having been allowed, the practice in this State is for the party who breaks the panel by challenging jurors to fill the places of those excused by him, and tender a full panel back to the opposite party. Each party when a full panel has been tendered him must tender the other party a full panel of four, and there was no error in the ruling of the court.

The principal question argued is whether or not the plaintiff in error is entitled to any consideration whatever on account of the claim made by him that in each of the sales made by him he intended in good faith to sell not less than fire gallons, and that he did not knowingly or wilfully violate the statute. This question was raised both by offers of evidence, in instructions asked, and in the examination of the jurors. The court uniformly held that the intention or good faith of plaintiff in error was immaterial, and there is an absence of proof on the part of the people that the violation of the provisions of the statute was intentional, unless such proof of criminal intent was made by the evidence offered which it is claimed showed a device to avoid the statute. The proof offered by plaintiff in error to which objection was sustained, would have shown that plaintiff in error added to what the wholesaler sold and billed to him as five gallon packages, additional bottles in his endeavor to comply with the law.

The statute of Illinois concerning dram-shops makes no allowance for the good faith of the seller of intoxicating liquors. It provides, “that whoever shall outside of the incorporated limits of any city * * 'x" directly or indirectly sell, barter or exchange or in any manner dispose of, for money or anything of value, any intoxicating liquor of any kind, in less quantities than five gallons * * * shall for each offense be fined,” etc. There is no qualification in this statute; it is mandatory on the person who sells, barters, exchanges or disposes of any intoxicating liquor outside of any incorporated city to see that the quantity he sells shall not be less than five gallons. The question of the intent or good faith of the seller of intoxicating liquor has been frequently before the courts of this State and it has been held repeatedly that the question of intent is not involved, neither is the good faith of the seller any defense to a sale that is in violation of the statute. McCutcheon v. People, 69 Ill., 601; Farmer v. People, 77 Ill., 322; Noecker v. People, 91 Ill., 494; Tipton v. People, 156 Ill., 241; same case, 52 Ill. App., 512; Jackson v. People, 36 Ill. App., 88; Flynn v. City of Galesburg, 12 Ill. App., 200; Backhaus v. People, 87 Ill. App., 173; 17 Am. & Eng. Encyc. of Law (2d ed.), 335. There was no error in the rulings of the court either upon questions asked jurors, upon the admissibility of evidence or in the refusal of instructions, where the question of intent and good faith of the defendant was attempted to be urged as a defense against the information.

Cases of liquor which were purchased from plaintiff in error were measured, and complaint is made that the measures used were not properly sealed and verified, and that the gas that escaped when the beer was poured out of the bottles should have been measured or some allowance made therefor. The purpose of all the legislation in this State upon the liquor question is to provide as far as possible against the evils arising from the sale of intoxicating liquors and to prevent intemperance and the multitude of evils arising therefrom. Restrictions on the liquor traffic are in the interest of good government and should not be relaxed or frittered away. Gas is an aeriform fluid, but it is not a liquor within the meaning of that term as used in the statute concerning intoxicating liquors. It would be nullifying the restriction, which provides liquor shall not be sold in less quantities than five gallons without a license, to hold that the gas, froth or foam, must be measured that may arise when the liquor is released from the pressure caused by gas in the vessel in which it is contained, whether that pressure be from fermentation or the method of bottling. We hold the measurement intended by the statute to be a measurement of the quiet liquor after it has been released from confinement and reached a quiet condition in the open air.

It was shown that the measures used were sent by the county clerk of Mercer county by a special messenger to the office of the secretary of state at Springfield and the measures were there tested and stamped in the office of the secretary of state. The statute, chapter 147, section 9, provides that the secretary of state shall try and prove by standards kept in his office all weights and measures brought to him for that purpose by the county sealer and shall seal such when found to be accurate. The measures used were tested and stamped as required by the statute, and there was. no error either in admitting the measures in evidence or the testimony concerning the measurements.

Plaintiff in error desired in the presence of the jury that the empty bottles should be filled with water up to the corks, and then measured in the presence of the jury to show that the bottles in a case held five gallons. It was not claimed that the beer filled the bottles to the cork. The utmost that could be asked was that the bottles should be filled to the same height as they had been with the liquor they contained. For this the plaintiff in error did not ask.

There was proof offered on the part of the people that the plaintiff in error made a practice of selling a case of beer containing a given number of bottles, and then issuing to the customer a ticket- with numbers on the margin corresponding with the number of bottles in the package. The plaintiff in error would retain the package as custodian of his customer, and serve his customer therefrom from time to time, punching a number out of the ticket with the delivery of each bottle. It ivas shown by five witnesses that beer was sold in this manner. The contention on the part of the people is that this was a mere shift or device to evade the statute. This ivas a question of fact to be submitted to the jury. It is insisted on the part of the plaintiff in error that the court in three instructions branded such act of selling a case of beer and keeping a part of it for his customer as a shift or device, instead of leaving the question to the jury to decide whether it was a shift or device. The eleventh instruction is:

“The court instructs the jury that it is the law in this case that any shift or device- to evade the provisions of the statute to not sell less than five gallons of intoxicating liquors is an unlawful selling, and if you find from the evidence in this case, beyond a reasonable doubt, that the defendant by himself or another, either as principal, clerk, or servant, in any manner disposed of for money or other things of value any intoxicating liquors in less quantities than five gallons, as charged in the information, by any shift or device, then you should find the defendant guilty.”

The other two are very similar and clearly leave the question for the jury to find whether plaintiff in error used any shift or device to evade the provisions of the statute. Upon an examination of all the instructions either given or refused to which our attention has been called ive find no error.

It is assigned for error that after the jury retired to consider their verdict the courthouse was locked up and that the plaintiff in error with the general public were excluded from the court room where the verdict was received. This contention is based upon the affidavits of plaintiff in error and H. P. Burkland who state that at eight o’clock the janitor refused to let them into the courthouse. Counter affidavits were made by M. L. Gregory, the janitor, the State’s attorney and others that the courthouse was not locked. The janitor’s affidavit states that at a quarter past seven the defendant came to the courthouse, that the door was open, hut he said that he did not want to come in, and that he, Gregory, did not prevent the defendant from entering, and that the door was open and all comers admitted until the jury had agreed and were discharged. The plaintiff in error had his constitutional right of a public trial. We have reviewed all the important points raised and have examined all the other numerous alleged errors assigned and argued, hut we find no merit in them, and no useful purpose would he served by discussing them. Finding no error the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Robert M. Adam et al., Defendants in Error, v. Hester L. Rockey et al., Plaintiffs in Error.
    Gen. No. 4,879.
    1. Deficiency decree—what not. Held, that a deficiency decree must he for a specific sum and could only he entered after the sale in foreclosure, and that the decree in question in this case was not a deficiency decree.
    2. Equity pleading—when question of multifariousness cannot he raised. A charge of multifariousness cannot he urged against a bill of complaint for the first time on appeal or against a decree pro confesso.

    3. Husband and wife—when latter not liable upon covenants of deed. A wife who joins in a deed merely for the purpose of releasing her dower, is not liable upon the covenants contained in the deed.
    Foreclosure. Error to the Circuit Court of Will County; the Hon. Dorrance Dibbell, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed in part and reversed in part.
    Opinion filed March 11, 1908.
    Statement "by the Court. On March 3, 1894, Franklin L. Hockey was the owner of lot five in block ten of the original town of Joliet. On that day he executed a note for $700 due in three years with interest at the rate of 7 per cent per annum payable to himself, and. to secure the payment of the note executed a trust deed on said real estate to Ambrose F. O’Connor as trustee. The trust deed was duly recorded and the note transferred by indorsement and became the property of Annie J. Prior. On June 1, 1895, Eoclcey sold the real estate described in the trust deed to John Harting for $5,500. The conveyance from Eockcy to Harting is a warranty deed in the ordinary form, but contains the following clause, “subject to an encumbrance by way of trust deed or mortgage on which there now remains unpaid the sum of $700 and accrued interest and which as a part of the consideration above named the said grantors covenant and agree to pay when due and cause the same to be cancelled and discharged.” Ho money passed in this transaction, but to secure the payment of said $5,500 Harting and wife executed twelve promissory notes payable to their own order and indorsed them to Rockey. One of the notes is for $250 due in four months and one for $250 due in one year, both bearing interest at 7 per cent. The other ten notes are each for $500 with interest at 4% per cent, and become due, the first in two years and one each year thereafter, until the last which became due in eleven years. To secure these twelve notes Harting and his wife executed a trust deed on the said real estate to James L. O’Donnell as trustee. Robert M. Adam became the owner of the nine notes last maturing.
    Default haying been made in the payment of some of these notes at their maturity, Robert M. Adam, in February, 1901, filed a bill in the usual form to foreclose the trust deed against the Hartings, and alleged that the trust deed contained a provision that in the event of default being made in the payment of any of the notes at maturity the legal holder thereof might at his option declare all said notes due, and that Adam had declared all said notes due. The Hartings answered the bill, setting up the foregoing facts, and that the Rockeys had failed to pay the $700 note now held by Annie J. Prior, and that they had been compelled to pay interest on said $100 note, and that the $100 note and interest was a prior lien on the real estate described, and that they were equitably entitled to a set-off of the amount paid by them on account of interest and also the amount now due on the $100 note against the notes held by Adam. Thereupon the hill was amended setting up the same facts that were set up in the answer of the Hartings, and praying that in the event that the court should determine that the Hartings are entitled to any set-off on account of the trust deed to O’Connor or on account of any payment of interest made by the Hartings, then the court should direct that Franklin L. and Hester L. Rockey pay Adam the amount which the court might find should be allowed as a set-off against the notes held by him. Annie J. Prior answered the bill, setting up her ownership of the $100 note secured by the O’Connor trust deed and that the same is due and unpaid. The Rockeys were duly served with summons but failed to answer, and a default was taken against them. A replication was filed to the answers. After various other amendments to the bill and answers, by agreement of the parties the proof was heard in open court. A decree was entered finding the allegations of the bill as amended to be true, and finding, amongst other things, that there was due Annie J. Prior $186.98, and that under the trust deed to O’Connor the said amount is a first lien on said premises; that by reason of the warranty deed executed by the Rockeys to Harting the said Franklin L. Rockey and Hester L. Rockey jointly and severally agreed to pay and discharge said encumbrance of $100 and interest and that they should be required to perform their covenant and agreement ; that there is due Adam on the notes assigned to him $5,541.95 and that by reason of the trust deed to O’Donnell the same is a lien on said real estate; that Harting has paid $182 on account of interest and other items on the $100 note because of the failure of the Rockeys to pay the same; that the Rockeys obligated themselves to pay said $100 note and interest owned by Annie J. Prior, and that in proceedings to foreclose the trust deed executed by the Hartings to O’Donnell, said Hartings, as against Franklin L. and Hester L. Rockey, would be entitled to set off against said notes given by them to said Franklin L. Hockey the sum of $968.98, being the total of the amount paid by the Hartings and the amount now due on said note held by Annie J. Prior, and that said Adam, as assignee of said notes executed by Harting, holds the same subject to said set-off, and that the same should be deducted from the sum due from the Hartings upon the notes held by Adam, and that Adam should recover of said Franklin L. and Hester L. Rockey said sum of $968.98 and awarding execution therefor. A sale was decreed in accordance with the findings. At a subsequent term further evidence ivas heard, and a finding and final decree entered that Charles A. Barrett, as grantee of the Hartings, had paid Annie J. Prior the said sum of $186.98 and that he had paid Robert M. Adam $4,654, the amount found due him less the set-off the Hartings were entitled to against the Rockeys, and that the title to said real estate is vested in said Barrett free from all said liens, and that nothing in this decree shall modify the decree of the former term wherein the Hockeys were found indebted to Robert M. Adam and execution awarded. On January 11,-1905, an execution was issued in favor of Robert M. Adam against the property of Franklin L. and Hester L. Rockey to the sheriff of Will county, and by the sheriff levied on certain real estate. Franklin L. Rockey and Hester L. Rockey sue out this writ of error and assign various errors upon the record of the court, without presenting any certificate of evidence.
    E. Meers, for plaintiffs in error; E. 0. Hall, of counsel.
    Morrill Sprague and J. W. Downey, for defendants in error.
   Mr. Justice Thompson

delivered the opinion of the court.

The first, second, third and fifth assignments of error are in substance and effect that the court erred in entering a deficiency decree. The court found that the Rockeys had agreed to pay and discharge the $100 note and trust deed when the real estate was sold to the Hartings, and not having paid it the Hartings Avere entitled to have set-off against the note and trust deed they had given to Franklin L. Hockey that had been assigned to Robert H. Adam, the amount they had paid or Avould be compelled to pay to Annie J. Prior, the holder of the $100 note and trust deed executed by Rockey. This Avas not a deficiency decree. A judgment must be for a specified sum and hence a deficiency decree can only be rendered after a sale of mortgaged property. Cotes v. Bennett, 183 Ill., 82; Bouton v. Cameron, 205 Ill., 50. This not being a deficiency decree such assignments of error are not well taken.

The fourth error assigned is that the court erred in said equity proceedings in determining the liability of plaintiffs in error on said covenant to pay said $100 lien, and that the court should have referred the parties to their remedy at Hav ; the sixth is that the court erred in entering a decree against plaintiffs in error or either of them.

The bill alleges “that from the records, etc., it appears that said John Harting obtained title to the said real estate by deed of Avarranty from Franklin L. Rockey and Hester L. Rockey his Avife * "1:" * that the same appears to contain the following stipulation, covenant or agreement; ‘subject to an encumbrance by Avay of trust deed on Avhich there noAV remains unpaid the sum of $100 and interest, and AA7hich as a part of the consideration above named the said grantors covenant and agree to pay when due and cause the same to be cancelled and discharged.’ ” The decree finds that said Avarranty deed from said Franklin L. Rockey and Hester L. Rockey contained this covenant or agreement and that by reason of said agreement or covenant in said deed Franklin L. Rockey and Hester L. Rockey jointly and severally agreed and promised, etc., and became obligated to pay and discharge said encumbrance of $100 existing by reason of said trust deed to Ambrose F. O’Connor and the note accompanying the same, and that said Franklin L. Rockey and Hester L. Rockey should be required to perform their covenant and pay the full amount due on said encumbrance. The Rockeys were defaulted and a decree pro confesso taken against them. The Rockeys were proper bnt not necessary parties to said bill; they had disposed of their equity in the property and had no interest in it. Had there been a demurrer to the bill on the ground of multifariousness that part' of the bill asking for relief against them might possibly have been held bad on that ground. That' question, however, cannot be raised on appeal or error against a decree pro confesso. Gilmore v. Sapp, 100 Ill., 297; Chicago Theological Seminary v. Gage, 103 Ill., 175. Franklin L. Rockey, who was the owner of the property sold, having agreed to remove the encumbrance, had no reason to complain of a decree the findings of which correspond with the allegations of the bill and does equity. Hester L. Rockey, the wife, having signed the deed, the question arises can she be held to perform the covenant contained in the deed ? The bill recites that Franklin L. Rockey was the owner of the property conveyed to Harting and that the note for $700 was signed by Franklin L. Rockey and not by his wife, Hester L. Rockey. The decree recites that the court found that they both covenanted to pay the $700 note from the covenant in the deed alone. There is no finding that she received any of the consideration or that she intended to go security on her husband’s debt or to bind her separate estate. A wife who joins in a deed merely for the purpose of releasing her dower is not liable upon the covenants contained in the deed. Sanford v. Kane, 133 Ill., 199; Center v. Elgin City Banking Co., 185 Ill., 534; Williams v. Hugunin, 69 Ill., 214; Granath v. Johnson, 90 Ill. App., 308, and cases therein cited; Western Springs v. Collins, 98 Fed. R., 933; 5 Encyc. of Pl. & Pr., 361. There is nothing in the deed, which from the recital of the decree is the only evidence on which the court held Hester L. Hockey liable, that shows that she joined her husband in the deed for any purpose other than to release her dower, and the decree cannot be sustained against her.

So much of the decree as renders a judgment against Hester L. Rockey is reversed, in all other respects the decree is affirmed.

Affirmed in part and reversed in part.

Mr. Justice Dibell took no part in the decision of this case.


text:
    J. W. Ross, Defendant in Error, v. Bridget Harney et al., Plaintiffs in Error.
    Gen. No. 4,880.
    1. Evidence—what essential to overcome notarial certificate. The denial of the execution of a mortgage apparently acknowledged in due form, must be clear and convincing and overcome to a moral certainty the notary’s certificate, and the master’s conclusions finding due execution and acknowledgment will be taken prima facie as correct.
    2. Conveyances—effect of absence of acknowledgment. A deed or mortgage is valid as between the parties without being acknowledged; execution may be proved by the testimony of any one who saw the same executed or by the admission of the grantor.
    3. Conveyances—effect of covenants of warranty. Where a party executes a deed containing covenants of warranty, whatever title or interest he may have in the land or may afterward acquire, inures to the benefit of the grantee in the deed; a mortgage, therefore, containing covenants of warranty attaches to the distributive share of the mortgagor who has executed such mortgage without title but with an interest in the land which subsequently, through a trustee’s sale, made by order of court, is reduced to cash.
    4. Delivery—estoppel to deny agency to make. One who has signed a mortgage at the request of another and permitted such other to retain possession thereof, is estopped to deny the authority of such other to make delivery to one having no knowledge of the infirmity in authority.
    5. Administration of estates—power of administrator with will annexed. An administrator with the will annexed has no right or authority to make a sale of real estate without going into a court of chancery and procuring a decree conferring authority to carry out the directions of the will.
    6. Chancery—power of, with respect to sales to effectuate testamentary intention. A court of chancery has power to appoint and authorize a trustee to carry out the provisions of a will, and a sale by a trustee appointed by the court to carry out the provisions of a will must be an absolute sale subject only to the approval of the court.
    Foreclosure. Error to the Circuit Court of Marshall County; the Hon. Nicholas E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement by the Court. This case was first taken by writ of error to the Supreme Court. That court dismissed the writ of error, holding a freehold was not involved. The following is substantially the statement of the case as made by that court in 227 Ill. at page 539, with slight additions. This is a bill filed August 31, 1903, in the Circuit Court of Marshall county, for the foreclosure of a mortgage, wherein it is alleged that Bridget Harney, Charles J. Harney, George H. Harney and Mary A. Harney-Monier are the mortgagors and the defendant in error the mortgagee; that said mortgagors became indebted to complainant May 1, 1899, in the sum of $5,000, for which they executed and delivered to him a promissory note of that date, payable in one year, with interest at 6 per cent, and to secure said note on the same day executed a mortgage on certain real estate in Marshall county, Illinois. The bill closes with the usual prayer for foreclosure proceedings.
    George H. Harney answered, denying that he ever executed the note and mortgage or that he ever was indebted to complainant.
    Mary A. Harney-Monier answered, denying that she or any of her co-defendants, jointly or severally, ever became indebted to the complainant or that they ever executed and delivered said note and mortgage; further answering, that on May 28, 1888, Daniel Harney died in said Marshall county, and left him surviving, as his only heirs-at-law, his widow, Bridget Harney, and George U. Harney, Charles J. Harney (a minor), Mary A. Harney-Monier, William H. Harney (since deceased), Joseph Harney, Kate Harney, Thomas A. Harney, Daniel Harney, Jr., John M. Harney (since deceased), Maggie Harney, Edmund H. Harney and Robert Harney, his children; that said Daniel left a will, providing, among other things, that after the payment of his debts his wife should receive one-third of the net income, rents and profits of his real estate and one-tliird of his personal estate for her separate use and benefit, to be taken in lieu of dower; that his real estate should be kept together and rented to the best advantage until the youngest child reached majority, and after paying out of said rents all necessary repairs, taxes and insurance, one-third of the net sum should go to his wife as long as she should live, and the remainder of the said rents and net income, along with the personal property not going to his wife, should be put together annually and annually divided, one-third, each, to his sons, Charles J. and George H., and his daughter, Mary Ann, until his daughter reached the age of sixteen, and from thence said income be divided equally between his said sons, George H. and Charles J., until the youngest arrives at his majority; that in case one of the two dies before majority the income going to him shall be added to the principal of the personal property until the survivor reaches majority; that after his youngest living child arrives at majority all of the real estate shall be sold by his executors under power given by the will to his executors to convey, and if his wife be living at the time of the sale of said real estate she be paid a gross sum in compensation for her release of her interest, or they reserve one-third of the proceeds and pay her the proceeds for her life, or sell the real estate subject to the life estate, or make any other arrangements satisfactory to her and the executors; that he gives and bequeaths to Robert F., Charles J., and George H. $3,000 each, and to his son Edmund and daughter Mary Ann $1,000 each, to be paid to them out of the proceeds of the real estate and personal property within one year after the real estate be sold; that if any legatee die before the time of payment of the legacies, leaving children, then his legacy should not lapse but go to such children, otherwise the legacy shall lapse and fall into the residue; that all the residue of the estate, both real and personal, should go to his sons,, Charles J. and George N., share and share alike; that his children, William, James, Thomas, Daniel, John, Kate and Margaret, are so circumstanced in life as not to be entitled to any further part of his estate. Said defendant, Mary A. Harney-Monier, further answering, alleged that (the executors named in the will declining and refusing to act) defendant, Bridget Harney, was appointed administratrix de bonis non with the will annexed; that under and by virtue of the terms of the will the mortgage set forth in the bill of complaint is of no force or effect-against any of the rights of this defendant in said real estate described in said mortgage, or the proceeds thereof.
    The answer of Bridget Harney denies that she was ever indebted to complainant or that she ever executed and delivered the note and mortgage; states that said note and mortgage were procured from the defendants by fraudulent, false, untrue and scandalous representations, tricks and devices, in that complainant loaned small sums of money, amounting to less than $1,000 to one Thomas Harney, a son of this defendant and brother of the others, and charged Thomas Harney excessive and usurious interest in violation of law, and fraudulently and falsely and intentionally represented to defendants that said Thomas was indebted to complainant for $5,000 and that unless the defendants made, executed and delivered to the complainant the note and mortgage said Thomas Harney would be arrested, prosecuted and sentenced to the penitentiary; denies the right of complainant to have the right of foreclosure for any greater sum than was actually due on the debt of said Thomas Harney.
    Charles J. Harney answered, setting forth the same claim of fraudulent representations as made in the answer of Bridget Harney, and denying that he ever was indebted to complainant or that he ever executed, acknowledged or delivered the note or mortgage in question after he became twenty-one years of age; and stating that he was a minor at the time the note and mortgage were signed and delivered, and has never ratified the same since coming of age.
    The bill was thereafter amended so that it alleged, among

      other things, the following: That at the time the defendants executed the mortgage deed in question they covenanted and warranted that they were lawfully seized in fee simple of the premises, free and clear of all encumbrances; that at the time of the execution and delivery of said note and mortgage complainant received the same without notice of the rights of the parties under the last will and testament of said Daniel Harney; that he relied on the covenants of the mortgagors that they were the owners in fee and had good right to convey the same; that on October 27, 1888, Robert F. Harney, defendant, executed and delivered to Bridget Harney a quit-claim deed to the land described in the will, which deed was duly acknowledged and recorded, and also executed an assignment to Bridget Harney of the $3,000 legacy given him by the will of his father; that Charles J. Harney is the youngest child and legatee of Daniel Harney and that he was past twenty-one years of age at the time of the commencement of this suit; that the executors named in the will refused to act and that Bridget Harney was appointed administratrix de honis non and is still acting; that defendants elected to treat the bequest and devise to them under the last will as real estate and not have the same converted into personal property and distributed as legacies, and that by virtue of the covenants of warranty in the mortgage deed defendants are estopped to deny that they had so elected; that in case the court should hold that the fee did not pass by said mortgage deed to the complainant, it should order and decree the sale of said premises by the administratrix or the master in chancery in accordance with the direction of said will, and out of the proceeds of such sale belonging or payable to the defendants, Mary A. Hamey-Monier, George H. Harney, Charles J. Harney and Bridget Harney (including the $3,000 legacy to Robert F. Harney, assigned by him to Bridget Harney), the court should decree payment to complainant of the amount due him of principal and interest and costs.
    To the amended bill the widow, and all those heirs and descendants of Daniel Harney, deceased, who by his will are entitled to share in the proceeds, of said real estate, were made defendants.
    To the amended bill defendants filed a joint and several answer, alleging, among other things, that the defendant Mary A. Harney-Monier signed the mortgage under misrepresentations, but never signed the note and never delivered or acknowledged the mortgage; that George N. Harney never signed or ratified the note or mortgage and never delivered or ratified the delivery of the same; that the defendant Bridget Harney signed the mortgage and note with the express understanding that nothing was to be done with them until she had an opportunity to ascertain the truth of the representations, and never acknowledged or delivered, or consented to the acknowledgment or delivery of either of them. Defendant Charles J. Harney acknowledged that he signed the note and mortgage, but averred that he never in fact delivered the same or either of them, and that he signed them while he was a minor and has never ratified them since he became of age. They jointly denied that the complainant was entitled to the relief, or any part thereof, asked for in his amended bill. After the pleadings were settled the case was referred to a master who took evidence and reported that the mortgage and note had been duly acknowledged and delivered by the mortgagors heretofore named; that Bridget Harney, George H. Harney and Mary A. Harney-Monier, by virtue of the covenant of warranty in the mortgage that they w7ere the owners of the real estate in fee, were estopped to deny their title and interest in the premises, and that Robert E. Harney had transferred all his interest to his mother, Bridget Harney; that the said Charles J. Harney signed and executed the mortgage while he was a minor, and that he and Edmund Harney had not elected to treat the bequests as real estate and therefore were not estopped in these proceedings. Exceptions were filed to this report, which were in the main overruled, the decree of the chancellor finding, among other things, in addition to the findings of the master, that as the said legatees, Charles J. Harney and Edmund Harney, have not elected to treat the gifts and bequests under said will as real estate, they were entitled to have the premises sold under and by virtue of the terms of said will and to have the proceeds thereof distributed by virtue of its provisions; that some suitable person should be appointed as trustee by the court for the purpose of making such sale, and that the distributive shares of Bridget Harney, George H. Harney and Mary A. Harney-Monier, payable to them under the terms of the will, arising out of the proceeds of said sale, be first applied to the payment of costs of this proceeding and the amount due upon the indebtedness under said note and mortgage. The decree continues: “It is therefore ordered, adjudged and decreed * * * that within sixty days from this date said George H. Harney, Bridget Harney and Mary A. Harney-Monier pay to complainant $6,'722.49, with legal interest thereon from this date, and the costs of this suit. * "x" "" In default of such payment being made, as aforesaid, by the said defendants, * * * then and in that case the premises mentioned * * * he sold at public vendue, for cash,” etc. The master was by the decree appointed a trustee to make sale under the will, and it was provided that the sale be made without right of redemption.
    All the defendants below have joined in suing out this writ of error, bringing the record from the Circuit Court to this court for review, and here insist upon all the defenses set up by the answers.
    Babnes & Magoon, for plaintiffs in error.
    Winslow & Evans, for defendant in error; E. W. Potter, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

It is assigned for error and argued that Bridget Harney and Mary A. Hamey-Monier did not acknowledge or deliver the note and mortgage; that George N. Harney neither signed nor delivered them, and that he never acknowledged the mortgage. Bridget Harney, Mary A. Harney-Monier and George N. Harney each insisted in their answers that they never executed and delivered the note. Bridget Harney and Mary A. Harney-Monier do not now insist that they did not execute the note, and admit that the signatures to the note and mortgage are their signatures, but they deny that they ever acknowledged or delivered the mortgage. It is insisted still that George N. Harney did not execute either the note or mortgage. The record shows that defendant in error Boss conducts a bank at Walnut in Bureau county, under the name of the Walnut Bank, and that Bridget Harney, T. A. Harney and E. S. Harney on January 23, 1899, confessed a judgment to the Walnut Bank for $1,513.66 and costs; that T. A. Harney had bought some swamp land in Henry county from parties in Bock Island, and desired to borrow money from Boss to make payments on this land, but could not do so without first securing or paying the judgment against him and his mother, Bridget Harney, and brother, E. S. Harney; that T. A. Harney negotiated for a $5,000 loan from defendant in error through M. A. Stiver, an attorney; that Stiver prepared a note and mortgage to be executed by Bridget, Charles J. and George H. Harney and Mary A. Harney-Monier and gave them to T. A. Harney to have executed. The evidence shows that the note sued on is the note prepared by Stiver but the mortgage is not the one prepared by him. Thomas E. Clover, an attorney at Henry near where the plaintiffs in error resided, testifies that he prepared the mortgage sought to be foreclosed; that he has known the plaintiffs in error ten or twelve years; that Charles J., Bridget, and George H. Harney and Mary A. Harney-Monier signed the mortgage before him as a notary public; that the makers of the mortgage came to his office at different times and he saw each of them sign their respective names, and that George said at the time he signed the mortgage, “I came in to sign that mortgage,” and that T. A. Harney took the note and mortgage from the office. He also testifies that he does not remember seeing the note executed but he knows the signature, George H. Harney, to the note is George N. Harney’s signature. T. A. Harney testifies that George’s name was placed on the note while George had it in his possession at Annawan while he was getting dressed to go to Geneseo, and that George had the mortgage at the same time, but says he cannot say whether they are his signatures. George H. Harney’s mother, Bridget Harney, testifies that George writes several ways and that the disputed signatures are much like his. Ilis brother Charles testifies that he is familiar with George’s signature, but cannot say whether they are his or not, and his sister Mary testifies that she knows his signature but cannot swear it is his signature to the note, and that when she signed the papers she thought George had signed them. George’s name appears on both the note and mortgage beneath the signature of Bridget Harney and next above that of Mary Harney-Monier, which is the last of the signatures to both the note and mortgage. On the mortgage the signatures are upon four successive lines printed for the guidance of signers, while on the note the four signatures are crowded into the space intended for three signatures. The mortgage also has the official certificate of acknowledgment of Thomas F. Clover, notary public. It is shown by the evidence that T. A. Harney delivered the note and mortgage to defendant in error and received for it three drafts, one payable to the order of George H. Harney for $2,205; another for $461.25, payable to the order of George N. Harney; and one for $608.79 payable to the order of T. A. Harney; and $183 in money, and a release of the judgment held by the Walnut Bank. George 1ST. Harney received the drafts for $2,666.25 payable to his order from the money procured through this note and mortgage, and used the same to make a payment on T. A. Harney’s land contract. In August, 1902, George ÍT. Harney wwote to the Walnut Bank to postpone the case and said, “will be up to make arrangements Monday or Tuesday of next week.” This was before the suit was begun, when the bank was urging payment and threatening suit. George H. Harney testifies he did not sign either the note or mortgage and says they are not his writing; however lie does not seem to recognize his own signature clearly, as lie says his brother T. A. Harney gave him the two drafts payable to George H. Harney to take to Rock Island and make a payment on the land, and testifies that the indorsement on the back of one of the drafts “looks like my signature but I do not remember signing it. I do not think that I did.” He also testifies that the drafts were given him to take to Rock Island in 1898, while the drafts were issued in 1899, and that in 1898 or 1899 he told T. A. Harney he could do nothing to help him get money to pay the judgment. The only witness besides George H. Harney who testifies positively that the names George H. Harney on the note and mortgage are not the signatures of George H. Harney is his brother James H. Harney, who testifies his brother George was in the swamps at Annawan in Henry county the last half of April and the first week in May, 1899, and yet said he (James) was in Chicago all of 1899. He does not appear to recognize the genuine signature of his brother George, since he testifies that the letter written and signed by George in August, 1902, “Exhibit C,” is not George’s writing, although George had testified that he wrote and signed it. Charles J. Harney testifies that he “signed the note and mortgage at his mother’s home; that Tom came from Annawan and asked him to sign them.” Margaret Harney testifies that Charles was not at home at that time, but at Annawan. Mary A. Harney-Monier testifies that she did not sign the note, and T. A. Harney testifies he saw her sign. it. The members of the family contradict each other to such an extent on material matters that we think the court was justified in finding that the evidence of the defendants did not overcome the positive testimony of Clover and the notarial certificate. To find otherwise would be to hold that some member of the family was guilty of forgery. In a matter of this kind the conclusions of the master are prima facie correct. Ennesser v. Hudek, 169 Ill. 494. The Circuit Court approved the finding of the master and we hold that such finding is sustained by the weight of the evidence.

The signatures of Bridget Harney and Mary A. Harney-Monier to the mortgage are proved by the evidence of memhers of the Harney family. Its execution is sufficiently proved, and it is valid as to them, -without the evidence of the notary or his notarial certificate. A deed or mortgage is valid as between the parties without being acknowledged, and its execution may be proved by the testimony of anyone who saw the same executed or by the admission of the grantor. Roane v. Baker, 120 Ill., 308: Semple v. Miles, 2 Scam., 315.

It might be observed, regarding the mortgage alone, that to impeach a notary’s certificate “the evidence should do more than produce a mere preponderance against its integrity in the balancing of probabilities.” The authorities very clearly lay down the rule that evidence offered to impeach a certificate of this character must fully an,d clearly satisfy the court that the certificate of the officer is false and fraudulent, and even a preponderance of evidence less than sufficient to establish a moral certainty to that effect is not sufficient. Brady v. Cole, 164 Ill., 116; Gritten v. Dickerson, 202 Ill., 372.

The makers of the note and mortgage did not personally deliver them to the defendant in error, but having signed them at the request of T. A. Harney and permitted him to have possession of them, they cannot be heard to say that he was not their agent to deliver them. When they permitted him to take the instruments they had signed it could be for no other purpose than to deliver them to the defendant in error, payee in the note and grantee in the mortgage; to hold that they were never delivered under the circumstances shown by plaintiffs in error -would be to permit the makers to perpetrate a bald fraud on an innocent holder. All the circumstances' shown surrounding the transaction indicate a purpose and intention to make T. A. Harney an agent to deliver the note and mortgage.

It is also insisted that the court had no right to order a sale of the real estate described in the mortgage, and that a sale absolute without the right of redemption was error. The fourth clause of the will of Daniel Harney directed “ that so soon as my yo¡ungest living child shall arrive at his or her majority, that all my real estate shall be sold by my executors,” etc. It is alleged in the bill that the executors nominated in the will refused to qualify and that Bridget Harney is the administratrix with the will annexed, and that Charles J. Harney is the youngest child of the deceased, and that he was past his majority when the bill was filed. These allegations were proved. The administratrix with the will annexed had no right or authority to make a sale without going into a court of chancery and procuring a decree authorizing her as trustee to carry out the directions contained in the will. Hall v. Irwin, 2 Gilm., 176; Stoff v. McGinn, 178 Ill., 46; Penn v. Fogler, 182 Ill., 76; 11 Am. & Eng. Ency. (2d ed.) 1321. A court of chancery has power to appoint and authorize *a trustee to carry out the provisions of a will. Hall v. Irwin, supra. A sale by a trustee appointed by a court to carry out the provisions of a will must be a sale absolute, subject only to the approval of the court.

The time having arrived for the sale of the real estate described in the will, the question arises was the complainant authorized in any way to file a bill asking for the appointment of a trustee to carry out the provisions of the will. Bridget Harney has an interest in one-third of the real estate or its proceeds for her life and the $3,000 legacy out of the proceeds that she purchased from Robert Harney. George N. Harney is entitled to a $3,000 legacy, and a half interest in the residue after the payment of the legacies, subject to his mother’s life interest, and Charles J. Harney has an equal interest with George. Mary A. Harney-Monier and Edmund Harney are each entitled to a legacy of $1,000 out of the proceeds of the real estate. Bridget, George N. and Charles J. Harney may have determined and elected to receive the real estate in place of having the property sold and converted into cash. The real estate is directed to be sold when the youngest child shall arrive at majority, and the legacies are to be paid within one year thereafter by the fourth, fifth and sixth provisions of the will. Eeither Robert, Charles, George, Edmund nor Mary had died before the time for the payment of their respective legacies, and the right to the legacies had become absolutely vested in them. The eighth clause of the will provides : “All the rest, residue and remainder of my estate both real and personal, I hereby give, devise and bequeath to my sons Charles J. and George N. to be divided equally between them share and share alike.” The rest and residue that might remain after the payment of legacies is vested absolutely in George and Charles. If the legacies were paid there is no equitable reason why Bridget, George, and Charles might not take the real estate, and not have it sold to take the proceeds. Bridget was asked whether she, Edmund, George and Charles had not agreed to hold the farm and not sell it under the will and she answered, “We have had no writing. I have thought myself that I would always remain there if they don’t want to sell it.” “Have you and your sons and Mary A. Harney-Monier talked it over and agreed among yourselves verbally that you will keep it as land and not sell it under the will?” To that she answered: “I have no answer to that.” “We have lately executed a mortgage on these lands for $4,000 to Charles B. Jones; we had no understanding or agreement to treat our interest in these lands as real estate and not have it sold under the will when we made that mortgage. Mary A. Hamey-Monier did not join with me in this mortgage.” The record contains no evidence as to what Edmund has done or claimed with reference to the legacy to him, nor whether he signed the Jones mortgage or not, neither is it averred or any proof made whether the residuary legatees have or have not paid the other legatees so as to avoid a sale by the trustee to carry out the terms of the will. The mortgage given by plaintiffs in error to defendant in error has full covenants of warranty. Where a party executes a deed containing covenants of warranty, whatever title or interest he may have in the land or may afterwards procure inures to the benefit of the grantee in the deed.

It is alleged in the bill that the plaintiffs in error who had executed the mortgage should by reason of their covenants be estopped to claim and receive their share of the proceeds of the sale of the real estate under the will. Defendant in error parted with his money in exchange for the mortgage. To permit plaintiffs in error to obtain a loan upon a mortgage with full covenants of warranty on property they had no legal title to, but which was to be sold under a will and part of the proceeds paid to plaintiffs in error, and to say they had no interest in the property that was subject to be mortgaged, and permit them to receive the proceeds of the sale as against the mortgagee, would be to sanction a fraudulent result and to uphold plaintiffs in error in the perpetration of a fraud. In Lagger v. Mutual U. L. Assn., 146 Ill., 283, where a widow who was the administratrix, had fraudulently, by connivance with third parties acting for her, bought land at an administratrix’s sale. to pay debts of which the principal debt was her award, and given a mortgage on the land, the sale was set aside because of her fraud, and it was held on a resale that she was estopped to claim her award and the costs of improvements due her, and it was ordered that the proceeds due her on her award and for improvements should be paid to the mortgagee by virtue of the estoppel arising from the covenants of warranty in the mortgage. In Baldwin v. Vreeland, 43 N. J. Eq. 446 (11 Atl. R., 341), a testator devised his real estate to his executors to sell and convert the same into cash and divide the proceeds equally between his wife and three sons, except a certain portion in which the wife was given a life estate, and this was to be sold by the executors after her death and divided amongst the sons. Before the death of the wife one of the sons attempted to convey his interest in the portion not to be sold until after his mother’s death by a mortgage, and was afterwards adjudged a bankrupt, and died leaving children. It was held the interest which the mortgagee took as between him and the mortgagor -was a complete title, and could not be impeached by the mortgagor or those in privity with him; no one claiming a conveyance for a valuable consideration bona fide in hostility to the mortgage. The court held “the execution and delivery of the mortgage for a valuable consideration operated as an equitable assignment which it is the duty of the court to recognize and maintain.” The mortgagee was held entitled to receive on an executor’s sale the distributive share of the mortgagor as against his children. Oases of an involuntary sale under an execution or an attachment by creditors of legatee’s interests under similar wills are in no way analogous, and the principle involved-in such cases is not involved in this case.

The mortgage executed by Bridget Harney, George H. Harney and Mary A. Harney-Monier, plaintiffs in error, must in equity be regarded as an equitable assignment of the interest of these plaintiffs in error in the land or the proceeds thereof to the extent of the mortgage should the land be sold. The defendant in error under such an assignment had a right to have the land sold to carry out the provisions of the will, unless the plaintiffs in error, Bridget, George, and Mary, should pay defendant in error, and the defendant in error is, entitled to receive the interest of Bridget, George and Mary to the extent necessary to pay the mortgage, if the same is sufficient, and the balance if any will be distributed by the court under the will. We find no error in the decree and it is affirmed.

Affirmed.


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    The City of Aledo, Defendant in Error, v. Ola Nylin, Plaintiff in Error.

    Gen. No. 4,884.

      Jurisdiction—when question of territorial, cannot he raised. The question of territorial jurisdiction cannot he collaterally raised in a prosecution for the illegal sale of malt liquors within the de facto limits of a city contrary to the ordinances thereof. So held, in this case, in which it was admitted that the city in question had assumed to exercise territorial jurisdiction with respect to the place where the sale was made.
    Action commenced before justice of the peace. Error to the Circuit Court of Mercer County; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement by the Court. On November 13, 1907, Ola Nylin, plaintiff in error, was arrested on a warrant issued by a justice pi the peace, on a complaint charging Mm with selling malt liquors within the limits of the city of Aledo contrary to the ordinances of said city. He was fined before the justice and appealed to the Circuit Court. In the Circuit Court a jury was waived, and on a trial plaintiff in error was fined, and sues out a writ of error to this court. The sale of liquor is admitted, and the only controverted question in the case is whether the place where the sale was made, was within the city limits. The organization of the village of Aledo and the change from a village to a city are admitted.
    The agreed facts are that the original plat of the town of Aledo was made in 1856; that plat shows no street on either the south, west or north sides of the plat. Second street is the most southerly of the east and west streets and is on the north side of the south row of blocks. The parallel streets towards the north are Third, Fourth, etc. In 1857 Willits and Thompson, who platted the original town, platted an addition surrounding the original town on the east, north and west sides and extending on the south side of the original plat about half the way from the southeast corner to the southwest corner. In the plat of this addition Ash street divides the addition from the original town on the west, Eleventh street separates them on the north and First street on the south as far as the addition extends on the south. The county surveyor’s notes on the plat state, “Willits and Thompson’s addition to the town of Aledo comprises all between Ash and Hemlock streets and the east half of the tier of blocks lying next Hemlock street on the west, also all north of Eleventh street and east of Ash street, also all east of Chestnut and north of First street, and also all south of First street and east of College avenue”; “all streets are eighty feet in width except Winth street and College avenue which are one hundred feet wide,” “Willits and Thompson’s addition is located on the southeast and east half of the southwest quarters of section seventeen, and the northeast quarter, and the northeast quarter of the northwest quarter of section twenty,” all in township fourteen, north, rango three west. The east half of block 20 is the southwest block in the addition; east of block 20 is Hemlock street, and proceeding east successively are block 125, Oak street, block 126, Ash street, block 127, and block 128 in the original town. The south line of this row of blocks is fifty-six feet north of the south line of the northeast quarter of the northwest quarter of section twenty at the west side of the addition, and at block 128 it is eighty-two and one-half feet distant. These distances are shown by a plat of some territory annexed to the city in 1906. There is no line drawn on the plat marking the south side of a street south of blocks 20, 125, 126 and 127, either in the original plat or in Willits and Thompson’s addition, but from near the center of block 128 on eastward to the east side of the plat “1st street” is indicated in the plat of the addition by lines on both sides. The word “street” is written on the plat in the space claimed by the appellee to be “1st street” east of Chestnut street and the word, “1st” is written on the plat south of the center of block 125, but there is no line on the plat south of the word 1st; the boundary line of the government description of the land on which this part of the addition is situated is not indicated.
    On January 26, 1906, the city of Aledo by ordinance annexed to the city the north part of the southeast quarter of the northwest quarter of section twenty. It is the contention of plaintiff in error that the strip of land fifty-six feet wide at the west end and eighty-two and one-half feet wide at the east end lying between blocks 20, 125, 126 and 127 on the north and the land annexed to the city by the ordinance of January 26, 1906, is not within the city. The defendant in error made the sale of the liquor for which he was arrested, in a building located wholly within this strip and over the place corresponding with where the word “1st” is written on the plat.
    The following sketch shows the southern portion of the original plat of the city of Aledo, except the central portion which is similar to that shown on either side; the addition made in 1857, and the territory annexed in 1906. The stones marked at the southwest comer of the original plat and at the southeast corner, east of Chestnut street, are shown on the original plat, and.all the lines of the original plat are indicated by the heavy ruling. The plat of the addition made in 1857 is shown by a light ruling, and the territory annexed in 1906 is shown by dotted lines.

    Cooke & Wilson, for plaintiff in error.
    George W. Werts, Jr., for defendant in error; W. J. Graham, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

It is admitted that blocks 20, 125, 126, 127 and 128 are within the city limits of the city of Aledo. It is also admitted that the north part of the southeast quarter of the northwest quarter of section twenty was legally annexed to and became a part of the city, before the commission of the alleged offense. It is not necessary in the decision of this case to decide what proceedings are requisite to dedicate land for a street or public purposes and to make a town plat valid and operative.

It is also admitted that the city of Aledo is a city lawfully incorporated and that it assumes to and does, for city purposes, exercise jurisdiction over the territory on both sides of the narrow strip of land on which the sale of liquor was made. It is admitted and shown by the plat that the persons owning this strip of land and who platted the addition in 1857, which is partly on the north and partly on the south of this strip, marked it for a street by name although failing to indicate the south line of the street as the south line of the northeast quarter of the northwest quarter of section twenty, since it is stipulated that the south line of this alleged street was the south line of the land owned by them in the east half of the northwest quarter of section twenty; the stipulation is that Willits and Thompson owned the northeast quarter of the northwest quarter of section twenty, and that McCandless owned the southeast quarter of said northwest quarter of section twenty, the north part of which was included in the city by the ordinance of January 26, 1906.

The plats offered in evidence show that neither Ash, Eleventh street, nor any part of First street, was ever included in a plat made by the owners. The original plat it is insisted did not include these streets within their limits. The plat of the addition starts at these streets and does not include them. The western part of the addition is west of Ash street, the northern part is north of Eleventh street and the eastern and southern parts of the addition included “all cast of Chestnut and north of First streets; also all south of First street and east of College avenue.” Literally First street, and parts of Ash and Eleventh streets are excluded from the city and the city is composed of disconnected parcels of territory, if plaintiff in error’s contention is tenable. It may be noted that the proprietors’ notes on the original plat of the town signed by them do not show that the north half of the northeast quarter of section twenty, although surveyed in the plat, was ever owned by the makers of the plat, and that tract is not, mentioned as being land on which part of the town is located, although it is in the central portion of the city, and is included in the plat made by the surveyor. It is said in City of Albia v. O’Hara, 64 Ia., 297, which was a prosecution by the city for a violation of an ordinance against selling liquor, where the defense was that the offense was not committed within the city. “This case is one of which a justice of the peace had jurisdiction, and is not a suitable action to test corporate rights. Whatever territory the city maintains jurisdiction over must be regarded,' we think, as de facto corporate territory. If the right of jurisdiction is to be tested, it should, we think, be done by a proceeding that would be binding upon all and final.” This statement was quoted and approved in C., C., C. & St. L. Ry. Co. v. Dunn, 61 Ill. App., 227. To hold that the strip of land marked “1st street” is not within the city although the city is stipulated to have complete jurisdiction to enforce its ordinances on either side thereof would be extremely technical, and in effect holding that the city of Aledo is composed of parcels of territory disconnected by streets and that the city has not jurisdiction over narrow strips of land the width of streets located across and through the city. We hold that such a defense may not be urged in this case in view of the admitted and proved facts as to the jurisdiction of the city. The judgment is affirmed.

Affirmed.


text:
    Maria Donovan, Appellee, v. John Lambert, Appellant.
    Gen. No. 4,902.
    Contributory negligence—when established. Held, that the plaintiff in this case, who was injured by being struck by an automobile while riding in a buggy, was- guilty of contributory negligence in driving upon the wrong side of the road in violation of the statute, knowng at the time that she was about to meet the automobile in question which was coming in the opposite direction.
    Trespass on the case. Appeal from the Circuit Court of Will County; the Hon. Albert 0. Marshall, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed March 11, 1908.
    Eddy, Haley & Wetten, for appellant; Charles H. Pegler, of counsel.
    J. W. D’Arcy, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action of trespass on the case brought in the Circuit Court of Will county by Maria Donovan, appellee, against John Lambert, appellant, to recover damages claimed to have been sustained by reason of appellee being thrown from a buggy which was overturned as a consequence of her horse being frightened at appellant’s automobile. Upon a trial a verdict of $500 was recovered and judgment was rendered thereon; Lambert prosecutes this appeal.

The declaration contains three counts. The first count alleges that the automobile was driven at a reckless and dangerous rate of speed, to wit, thirty miles an hour, whereby plaintiff’s horse became frightened and unmanageable and overturned the buggy into a ditch, in consequence of which plaintiff was seriously injured; the second count sets up the statute regulating the speed of automobiles in the highway, and that defendant’s automobile was driven at, an unlawful rate of speed; the third count alleges the duty of defendant’s servant in charge of his automobile to exercise reasonable care in running the same and to be watchful and to have his automobile under control, so as not to frighten horses, and that plaintiff’s horse became frightened at a distance of four hundred feet from the defendant’s automobile in a highway with a graded width of twenty feet, with a ditch four feet deep on either side, but that the defendant ran his automobile at thirty miles an hour and did not use reasonable care, and negligently failed to reduce its speed and stop the same at a safe distance before reaching plaintiff, etc. Each count alleged that plaintiff was in the exercise of due care for her own safety.

The evidence shows that, appellee lived in Troy, about seven miles west of Joliet; that on ¡November 21, 1905, she with her daughter visited Joliet, riding in a covered buggy drawn by one horse; that she returned home in the afternoon upon what is known as the Troy road, which runs directly west from Joliet; that this road is turnpiked, the surface of the pike being about twenty feet wide with three or four feet on either side of the pike sloping to ditches, which are three or four feet deep. Appellee was driving west on this pike behind another covered buggy driven by Abel Heep. Another rig driven by John Getter was going in the same direction some little distance in advance of Heep. Appellee claims that as she was passing the gate of a farmer named Syle she saw appellant’s automobile approaching across a railway about a half mile distant and she then undertook to pass Heep in order to drive into the gateway of a farmer named Stephen, which was on the south side of the highway three hundred and eighty-nine feet distant, as she says in order not to meet the automobile on the highway. In passing Heep she drove on the south side of the road until within a few feet of Stephen’s gateway, when the automobile being within about ten feet of her the horse suddenly shied and jumped into the ditch, overturning the buggy, which fell on appellee. Just before the horse shied Hiss Donovan attempted to grab the lines and some of the witnesses say she drew the horse diagonally across the road into the ditch. The automobile stopped immediately after passing appellee. Appellee testified that the horse was twelve years old and manageable, though it sometimes shied; that she drove it around engines and cars and frequently met automobiles and never had any trouble in passing them, and had never driven it into driveways to avoid them; that the horse would keep on the road, but would shy a little bit; that it showed no signs of fright on this occasion, but pricked up its ears and was going fast to get to the Syle gateway. Appellee’s proof showed that a year before that time this horse had shied at a steam roller, and tipped her into the ditch at this same place, destroying her buggy and running away, for which damages had been collected; that on that occasion the horse showed no signs of fear until it got within ten feet of the roller, and then suddenly jumped into the ditch; and that four years before this horse had injured a son of appellee, from which injuries he died. On the present occasion it is not claimed that either appellee or her daughter gave any signal or sign to the people in the automobile to stop, or that they had any fear of danger. Gillet, the man in charge of the automobile, testified that he was going between eight and twelve miles an hour. Still-man, a druggist in Joliet, who was with Gillet in the machine, testified they were going between six and twelve miles an hour. Stephen, by whose gate the accident happened, was eighteen rods back in the field and watched the automobile, and testified that it was going thirty miles an hour, that he watched it and it went twenty rods in half a minute. Twenty rods in half a minute is at the rate of seven and one-lialf miles an hour. Heep testified that the machine was going thirty miles an hour, but he was on the road going towards it; he also said that he drove behind Mrs. Donovan and not ahead of her, and in that contradicts all the other witnesses. On the question at what speed the automobile was going the evidence is conflicting, and while the preponderance shows it was not going at an unlawful rate, we would not feel justified in interfering with the verdict of the jury, if the verdict was dependent on that question. The evidence of Mrs. Donovan shows that she was not in the exercise of due care for her own safety. She was driving on the wrong side of the road, in violation of section 77 of the Road and Bridge Act, although she knew she was meeting the automobile coming in the other direction and at the place "where Heep was driving on the right side of the road to pass the automobile. Upon appellee’s own statement, if she had kept on her own side of the road or kept behind Ileep’s rig, she would not have been injured, as the horse was not afraid of such machines. The horse was at a place where it had had a runaway before and it was her duty to observe such care as a prudent person would exercise under like circumstances. This appellee’s evidence shows she did not do. As appellee failed to prove the allegation of her declaration that she was in the exercise of ordinary care for her own safety, and her own evidence shows that she was guilty of negligence that caused her own injury, the judgment must be reversed.

It is therefore unnecessary to discuss the amount of the verdict and judgment, except to say that the proof is that appellee was hut slightly injured, and that we regard the verdict as excessive. The judgment is reversed.

Reversed.


text:
    Ira J. Cook, Appellant, v. City of Marseilles, Appellee.
    Gen. No. 4,892.
    1. Municipal corporations—right of officials to compensation. If a person is appointed or elected to a public office for which no salary or compensation is fixed by law, any services rendered are gratuitous and no recovery can he had therefor.
    2. Municipal corporations—what essential to recovery of compensation hy official. In order that an official of a city or village may recover compensation for his services, he must first allege and prove a valid appointment.
    3. Constitutional law—when ordinance in violation of section 21 of article 6. Held, that the ordinance in question in this case providing for the appointment of a village constable, was void as in violation of section 21 of article 6 of the constitution of 1870.
    4. Pleading—when action of court in carrying hack demurrer proper. The rule that when a demurrer to a pleading has been interposed and overruled-and the party interposing the demurrer does not elect to abide hy his demurrer to such pleading, hut confesses that the pleading is a good pleading, then he cannot afterward if a demurrer is filed to a subsequent pleading have it carried back and sustained to the pleading to which a demurrer has been previously overruled, is subject to the exception that the court may in its discretion permit the pleading filed to be withdrawn and then may carry hack the demurrer.
    5. Pleading—when plea of res judicata insufficient. A plea of former adjudication is insufficient where it only answers a portion of a count.
    6. Pleading—when plea of estoppel informal. A plea of estoppel is informal when it does not conclude that the defendant will rely upon the adjudication set up as an estoppel.
    7. Practice—effect where issues are incomplete. Notwithstanding the issues are incomplete in that no plea was filed to the common counts, the issue will he treated as complete where the parties to the cause have so treated it.
    Assumpsit. Appeal from the Circuit Court of La Salle County; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.

      Statement by the Court. Ira J. Cook, appellant, began this suit in assumpsit December 13, 1899, to recover a salary or compensation for services as city marshal of the city of Marseilles from May, 1897, to September 27, 1898. The subject-matter of litigation in Ward v. Cook, 78 Ill. App., 111, was for the identical services from May to September inclusive, 1897. The original declaration consisted of seven counts. The defendant, appellee, demurred to each count. The court overruled the demurrer to the first and seventh, and sustained it to the second, third, fourth, fifth and sixth counts, and appellant elected to abide -by the counts to' which the demurrer was sustained. Appellant then by leave of the court filed three additional counts. Appellee filed the general issue and a special plea to the second' additional count, and demurred to the first and third additional counts. This demurrer was overruled as to the first additional count and sustained as to the third, and appellant abided by his third additional count. Appellee filed a general issue, and a special plea to the first additional count. Issue was joined on the general issues to the first and third additional counts, and a demurrer was filed to the special plea to the second additional count. Appellee at a later term, with a different judge presiding, obtained leave to withdraw the general issue to the first additional count, over the objection of appellant, and the demurrer to the special plea was carried back and sustained to the first additional count to which a demurrer at a previous term had been overruled, and appellant elected to abide by his said count. Appellee then by leave of court filed an additional plea of estoppel to the second additional count. Appellant demurred to the plea of estoppel and the demurrer wTas overruled. Appellant filed six replications to the plea of estoppel ; a demurrer was filed and sustained to all these replications but the first and second, whereupon appellant withdrew all the replications to the plea of estoppel, and obtained leave to abide by his demurrer to that plea. The case was tried before a jury on the first count of the original declaration, the second additional count and the common counts. At the close of all the evidence the court excluded the evidence and directed a verdict for the defendant.
    James J. Conway and L. W. Bee web, for appellant.
    Petes M. MacAbthur, City Attorney, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The appellant assigns for error the sustaining of the demurrer to the second, third, fourth, fifth and sixth counts of the original - declaration, and says they were good counts, hut makes no argument nor gives any reasons to sustain the counts. The second and fourth counts attempted to set up a cause of action for services as city marshal, and in neither count avers there was any ordinance of the city of Marseilles fixing any salary or compensation for such office during the time such services were rendered. The State law does not fix any salary or compensation for the office. If a person is appointed or elected to a public office for which no salary or compensation is fixed by law, any services rendered are gratuitous and no recovery can he had for such services: Bruner v. Madison County, 111 Ill., 10; 23 Am. & Eng. Encyc. (2d ed.) 390; Ward v. Cook, 78 Ill. App., 111. Each of said counts was defective in failing to allege a salary fixed by ordinance.

The third, fifth and sixth counts attempted to set up a cause of action for services as village constable. The third and fifth counts are defective for the same reason as the second and fourth, in that they do not allege any ordinance fixing the salary of a village constable, neither do they allege plaintiff’s election to that office. The sixth count alleges his appointment by the mayor and trustees as village constable, and an ordinance of the village fixing the salai’y at $50 per month. Counsel for appellant in their brief set out a copy of an ordinance of the village of Marseilles providing for the appointment of a village constable, and state that in 1893 the village organized as a city under the general incorporation act, and insist that the ordinances of the village for the appointment of a constable would enable appellant as marshal to draw the salary of a village constable. The ordinance was a void ordinance, since sections 11 and 12 of article XI of the city and village act authorizing the appointment of a village constable, are in violation of section 21, of article VI, of the constitution. People v. Bollam, 182 Ill. 528. The sixth count being based on a void ordinance, did not state a cause of action. The ruling of the court was correct on the demurrer to the original declaration.

It is insisted that the court erred in permitting the general issue to the first additional count to be withdrawn and then carrying the demurrer to the special plea back to that count after a demurrer to it had been overruled at a previous term by another judge.

It is a well-established rule of pleading at common law that when a demurrer to a pleading has been interposed and overruled, and the party interposing the demurrer does not elect to abide by his demurrer to such pleading but confesses that the pleading is a good pleading, then he cannot after-wards, if a demurrer is filed to a subsequent pleading, have it carried back and sustained to the pleading to which a demurrer had been previously overruled; yet to this rule there is an exception in this State. In Fort Dearborn Lodge v. Klein, 115 Ill., 177, it was said: “Nor do we agree with counsel for the appellant, that where a court has made an order either sustaining or overruling a demurrer to a pleading, such order passes beyond the control of the court. We are of the opinion that under the present liberal practice the court has the power and that it is its duty at any time before trial, when it becomes satisfied that an erroneous ruling has been made with respect to the sufficiency of a pleading or other similar matter, to set aside the order and correct the error. * * * The fact that the order was made by another judge is a matter of no consequence whatever. The power of the trial judge was precisely the same as if he had made the ruling himself.” Until final judgment shall be rendered in the suit the whole record is before the court and an interlocutory order or judgment may be corrected at any time. Brush v. Seguin, 24 Ill., 254; Constantine v. Foster, 57 Ill., 36; Fish v. Farwell, 160 Ill., 236; C. & A. R. R. Co. v. Harrington, 192 Ill., 9; Dowie v. Priddle, 216 Ill., 553; 6 Encyc. of Pl. and Pr., 331. The order permitting the general issue to the first additional count to be withdrawn and carrying the demurrer to the special plea back to the said count was made February 15th and the case was called for trial April 8th. The. appellant, when the demurrer was carried back to the first additional count, elected to stand by that count, so that the action of the court in permitting the demurrer to be carried back to the count was before the case was called for trial, and was clearly wdthin the approved practice, if the said count was so defective as not to sustain a judgment, or that it might be taken advantage of on a motion in arrest of judgment. A trial judge should not be embarrassed by trying the case upon a theory he believes unsound. Beckstrom v. Krone, 125 Ill. App., 376. The first additional count sought to recover upon an ordinance of the village of Marseilles providing for the appointment of a village constable, fixing the salary of such appointed village constable at $50 per month, and the appointment of appellant thereunder. This count was bad for the same reason the sixth original count was bad. People v. Bollam, supra.

The second additional count declared on an ordinance claimed to have been passed April 25, 1893, creating the office of city marshal and avers that said ordinance was “lost and omitted to be printed in the book of revised ordinances,” and avers that plaintiff was appointed city marshal in 1894, in 1895, and in 1896, and alleges that in 1897 an ordinance was passed establishing the office of city marshal and fixing the salary of that office at $50 per month and that plaintiff continued to serve as marshal until September, 1898, under the appointments of 1894, 1895 and 1896, and that the city council of the city of Marseilles did each and every month from April, 1897, vote to pay plaintiff $50 per month for his services, but that Eben J. Ward, mayor of said city, refused to sign said orders or warrants, and that defendant is indebted to plaintiff for said services, etc. The defendant filed the general issue to this count and a special plea which is mentioned in the record but is not copied therein, and afterwards by leave filed an additional special plea, averring that at the October term, 1898, of the LaSalle county Circuit Court the plaintiff impleaded Eben J. Ward, mayor of said defendant, in an action of mandamus to compel said Ward as such mayor to sign warrants for the months of hlay to September, 1897, for the same services in said count mentioned, and such proceedings were had that said Ward was ordered to sign said warrants, and that said cause was appealed to the Appellate Court of the Second District of the State of Illinois, and such proceedings were had in said Appellate Court that afterwards, by the judgment of said Appellate Court, the judgment of said Circuit Court was reversed without remanding, and it was therein adjudged that said plaintiff was not and had not been city marshal of said city of ^Marseilles, and was not entitled to any compensation as city marshal, which said judgment remains in full force, etc. The effect of the plea is to set up that it has been adjudicated that plaintiff was not city marshal under the appointment which he now alleges as the basis of his cause of action. As a plea of former adjudication it is insufficient as it only answers a part of the count, and as a pure plea of estoppel it is informal in that it does not conclude that defendant will rely upon such adjudication as an estoppel of the allegation that plaintiff was city marshal. The demurrer should have been sustained. City of East St. Louis v. Flannigen, 34 Ill. App., 596; 8 Encyc. of Pl. & Pr., 12.

No plea appears to have been filed to the common counts. The plaintiff having proceeded to trial on the issues joined and the common counts without a formal issue thereto, without asking for judgment for want of a plea cannot after a verdict take advantage of such failure to plead. It will be presumed the pleading was oral, and the defect is cured by the statute of amendments. Brazzle v. Usher, Beecher’s Breese, 35; Graham v. Dixon, 3 Scam., 115; Supreme Court of Honor v. Barker, 96 Ill. App., 490.

The appellant offered evidence that he had performed services for the city of Marseilles under the orders of Mayor Ward, and he was asked the question when he was appointed and commissioned marshal, but he did not offer to show such appointment by any city records, but offered to show by the records that the city council voted to pay him, to all of which objections were sustained. The records of the village of Marseilles concerning the appointment of a village constable and his duties, and the city ordinance of the city of Marseilles passed May 6, 1897, creating the office of city marshal and fixing his salary at $50 per month, were also offered in evidence, and an objection sustained. Ho proof of any kind was offered showing an appointment of city marshal subsequent to May 6, 1897, nor any proof -offered showing any ordinance concerning the city marshal as declared upon in the second additional count, and alleged to have been passed in 1893, and averred to be lost.

Hone of the evidence offered was competent to prove a liability against the city for services as city marshal until proof was made of a valid appointment of city marshal by the city records and an ordinance creating the office in force at the time of the appointment. Under the remaining counts of the declaration on which the case was tried there could be no recovery upon the evidence offered, and a verdict was properly directed for the defendant. The overruling of the demurrer to the special plea was harmless error. Finding no reversible error in the case, the judgment is affirmed.

Affirmed.