author: Wall, J.

text:
    John M. Dehm v. City of Havana et al.

      Municipal Corporations — Purchase of Land for Cemetery — Issue of Bonds■ — Bill to Enjoin Payment and Cancel Purchase — Statutes—Ordinances and, Resolutions — Certificate (f Evidence — Practice—Modification of Decree.

    In a proceeding to enjoin the payment of certain bonds issued by a municipal corporation, upon the purchase by it of certain lands for cemetery purposes, aud to cancel the purchase, it is held: That the injunction obtained by the plaintiff in the court below as to the first series of bonds should have been made perpetual, it not appearing that they were returned upon the subsequent and valid issue of bonds for the same purpose; that the ordinance for the purchase of said lands under which the second issue of bonds was made,complied with the statute, and was a valid exercise of municipal authority; that persons employed by virtue of the resolution authorizing the purchase and the first issue of bonds are entitled to compensation, although the first purchase was invalid, there being a “ contingent fund ” previously appropriated out of which they can be paid; and that the title to the lands in question, though subsequently acquired, relates back to the time when the labor was performed.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Mason County; the Hon. L. Lacey, Judge, presiding.
    Mr. Horace G. Harriets, for appellant.
    Messrs. E. J. Oooetey and Johet W, Pitmaet, for appellees.
   Wall, J.

By resolution adopted March 5, 1887, the city of Havana (incorporated under the general law) authorized its iK>mmittce on cemetery to purchase from Eeuben A. Henninger a tract of land lying near the city for cemetery purposes, for the sum of §2,000, and by another resolution adopted March 8th, the mayor and clerk were authorized to issue four city bonds of §500 each, bearing seven per cent, interest, etc., and deliver the same to said Henninger in payment for said land. It was also resolved that the ground should be surveyed and platted.

On the 15th of April, 1887, the appellant filed his bill in chancery against the appellees setting up the facts of said transaction and alleging that the deed had been received by the city and the bonds exchanged for the same.

The bill sought to enjoin the payment of the bonds and to cancel the purchase. A temporary injunction was obtained and duly served, preventing all steps toward the payment of the bonds or the improvement of the land. It was charged in the bill that the land, containing sixty acres, was largely in excess of any present or prospective need for cemetery purposes, and by reason of its location and quality was unsuitable; but, as seems to be conceded, the real objection was, that at no time before the purchase or the issuance of the bonds, had the city provided for the payment of a direct annual tax to meet the interest and principal of the debt thus incurred, in pursuance of the provisions of the act in force regulating such municipal corporations. Clause 5, Sec. 62, Chap. 24, B. S. It is not disputed that for the reason last stated said resolutions and bonds were void.

The city being advised of the illegality of its action, passed another resolution on the 30th of April, for the purchase of the land on the same terms, and for the issuance of the bonds as before, with a provision for an annual tax to pay. the same, which was designed to be in conformity with said statutory requirements.

On the 20th of May the appellant filed an amendment to the original bill for the purpose of preventing the payment of certain bills to one James Boggs and one John P. Faulkner, for work done by them in surveying said grounds, and a bill to one Benton, who was a member of the city council, for similar work on the premises, charging that there had been no previous order or appropriation for the services rendered by the said persons. On the 9th of May the appellant filed a bill in the nature of a supplemental bill to enjoin the payment of the bonds issued under the resolution of April 3Cth.

The city being advised that the action taken on the last named date should have been by ordinance rather than by resolution, abandoned the proceedings under said resolution and on the 4tli of June, passed an ordinance, No. 36, in supposed compliance with the statute, and also on the same day passed the regular annual appropriation ordinance, which contained provisions for the payment of the interest on the bonds for the first year. The mayor vetoed ordinance No. 36, but on the 2d of July it was duly passed over his veto by a vote of two-thirds of the council, and was then duly published, and was in force on the 18th of July, as was also the appropriation ordinance. On the 19th of July appellant filed his second supplemental bill to enjoin the delivery and payment of the bonds provided for by ordinance No. 36, but obtained no injunction thereon, and on the 20th of July Henninger again conveyed the land to the city and received the bonds provided for in ordinance No. 36.

On the 1st of August appellant filed his third supplemental bill praying that the deeds and bonds should be declared void, and that the city should be enjoined from levying taxes in payment of the bonds.

At the August term the whole controversy was submitted to the Circuit Court and was disposed of in one general order. The appellees had, on the 9tli of May, answered the original j bill, and had, on the 14th of May, filed a motion before one of ' the judges of the circuit, in chambers, to dissolve the injunction previously issued, which motion was overruled, and they had demurred to the second and third supplemental bills. The Circuit Court, by this order, sustained the demurrer to said second and third supplemental bills, (the first supplemental bill of May 9tli was abandoned by the appellant,) and as to the original bill and the amendment thereto, which the court considered, upon the answer and certain oral evidence, there was a decree that the complainant should take nothing except as to the Benton account, as to which the injunction was made perpetual. Errors are now assigned which question the propriety of the conclusions thus reached by the Circuit Court.

So far as the original bill and its amendment are concerned, there is no controversy that the relief prayed should have been granted to the extent of canceling the bonds issued under the resolution of March 8tli, but it is insisted by counsel for appellee that it is apparent from the record that those bonds had been returned to the city in exchange for bonds issued under ordinance No. 36, and hence there is no occasion to make perpetual the injunction issued as to them.

We are referred to the statement contained in the motion to dissolve the injunction on the 14th of May, to the effect that Ilenninger had the bonds first issued ready to be delivered back to the city ” whenever the bonds provided for by the resolution of April 30th should be executed and delivered to him. We are unable to find, anywhere in the record, that, as a matter of fact, or even as a matter of reasonable inference, those confessedly illegal bonds were ever surrendered, and, so far as shown by the record, they are yet outstanding. It was, therefore, but right and proper that the injunction should be made perpetual as to them, and no doubt the omission to do so was through a misconception as to the true state of the record.

This inadvertence is not surprising in view of the confusion occasioned by the frequent change of position, and the consequent change of the pleadings, as above set forth. It is urged that the court erred in not holding invalid the claims of Boggs and Faulkner, for surveying and platting the cemetery grounds, before the city obtained a title. When this work was done the city had a deed from Henninger, and it was by virtue of the resolution of March 8th, that the committee employed these claimants.

The justification for the payment of these bills now suggested is that there was an item in the annual appropriation bill, of the previous fiscal year, for “contingent fund,” under which there was a large unexpended sum in the treasury that had been provided for and collected under said appropriation bill and the tax levy ordinance of the same year, and which must he devoted to such expenditures as these.

Whether the provision thus made for a “contingent fund” was as definite and specific as the law requires, we shall not undertake to determine. We think it is sufficient to say that the fund having been provided for by the city and collected from the taxpayer without protest or objection, it is too late now to urge the point for this purpose, nor do we think that the fact that the city had a deed to the property which would, perhaps, or probably, be set aside, is a sufficient reason for refusing payment of these accounts. Whatever may be the logic of the situation, considering only what had transpired when this work was done, we are inclined to hold that a title subsequently perfected should relate back to that period, so as to afford equitable protection to these men whose work lias been appropriated by the city, and the benefit of which the city may legally enjoy.

Mor do we feel called upon to consider whether the purchase of the land in question was judicious. That was for the city to determine for itself. It had the power, expressly conferred by clause 79 of Sec. 62, Chap. 24, to acquire lands, by purchase or otherwise, for a cemetery within or without the corporation. If it be admitted that in case of a palpable and fraudulent abuse of authority in this respect a court of equity would interfere to prevent an improper use of corporate funds, still we see nothing in the facts of the present case to warrant such interference.

It is urged that the certificate of evidence which was heard under the issues made upon the original bill, recites that the cause was heard on the 9th of August, when, as appears of record, the hearing was on the 6th; hence the evidence contained in the certificate can not be considered for the purpose of supporting the decree. This was probably a misrecital as to the date. At any rate it is evident that the testimony was taken on the hearing, whether the true date was the sixth or the ninth.

A point is made that, as appears by the decree, there was a hearing of the suit, whereby the demurrer to the second and third supplemental bills was waived, and therefore it must be supposed that those bills were dismissed on the merits, and there being no evidence to support such a. decree of dismissal, there is error in the record.

This proceeds upon an incorrect view of the decree. It is plainly stated in the decree that the court heard the case a^ to the original bill and the amendment thereto upon the answer to the bill, and upon evidence as to the issue raised by the amendment, and that as to the supplemental bills numbers two and three (number one having been abandoned), the case was heard upon the demurrer to said bills, and the court, upon consideration and argument, held said bills to be insufficient in law.

There "was no objection to the mode adopted by the court in disposing of the entire controversy, and while it would have been more in accord with the regular course to have disposed of the demurrer to the supplemental bills before proceeding to try the case upon the original bill, yet this, at most, is but a mere irregularity, which was, no doubt, consented to as a matter of convenience to all, and should occasion no complaint here.

The chief and important question in the case arises upon the demurrer to the second and third supplemental bills, which is as to the validity of the bonds issued under ordinance Mo. 36. That ordinance provided that a cemetery should he established upon the land described containing sixty acres, etc., offered to the city at the price and on the terms then particularly set forth, which were accepted, and the land was thereby ordered to be acquired and forever used for a cemetery, and that upon á conveyance to the city four bonds of $500 each should bo issued, said bonds to bear interest at the rate of seven per cent, per annum, and respectively mature in two, three, four and five years. They were to be executed by the clerk on behalf of the city and to be delivered to Henninger.

Section two of the ordinance provided that to pay the principal and interest on the bonds as they should mature, the sum of $2,490 was appropriated out of the city revenues, to be directly and annually assessed and levied upon the taxable property within the city, and to be collected in yearly parts as follows: For the fiscal year beginning in the year 1887, $140 to pay the interest on all the bonds for the first'year; for the fiscal year beginning in 1888 the sum of $640 to pay the interest on all the bonds for the second year, and the principal of the bond then falling due; and so on specifically with reference to the principal and interest of each of the other bonds, the last payment to be made from the funds raised during the fiscal year beginning in 1891; and it further provided that a certified copy of the ordinance should be filed with the county .clerk, who was thereby directed to ascertain the necessary rato per cent, and extend the tax each year, and that the money so to be raised should be collected, and having been collected, should be by the city treasurer applied to payment of the principal and interest on said bonds respectively, as the same should become due and payable.

The annual appropriation ordinance for the fiscal year beginning Hay 7, 1887, contained an item of $140 for interest on cemetery bonds, being the amount mentioned in ordinance Mo. 36.

The city is incorporated under the general law, and must be governed by the provisions thereof. It is urged by appellant that there has been a failure to comply with Sec. 63, f o, which relates to the power to borrow money on the credit of the corporation for corporate purposes and issue bonds therefor, and declares that, “ before or at the time of incurring any indebtedness (the city) shall provide for the collection of a direct annual tax, sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years after contracting the same.”

We are of opinion that this provision has been fully complied Avith by the terms of Sec. 2 of said ordinance 36, Avherein there is .expressly enacted all that is required by the letter as Avell as the spirit of the statute. As avc read it nothing has been omitted.

It is also argued that there is a failure to comply with cj[ 90, (Sec. 2 of Art. 7 of the same Chap. 24) which provides that the city shall, within the first quarter of each fiscal year, pass an ordinance to be termed the annual appropriation bill, in Avliich such sums as may be deemed necessary, etc., shall be appropriated, specifying the objects and purposes and the amount for each; and no further appropriation shall be made at any time during that fiscal year, unless specially authorized by a majority of the legal voters through a petition signed by them, or at an election.

It has been stated that the annual appropriation bill for the fiscal year beginning May 7, 1887, contained an item of §140 for the first year’s interest on the bonds. Nothing more is necessary for that year, and as avo conceive, there has been a full compliance with this provision, even conceding that this section is applicable to bonded indebtedness created and provided for pursuant to *f 5 of Sec. 63.

Counsel for appellant urge also, that *f 92 (being Sec. 4 of Art. 7), Chap. 24, has been disregarded. It provides that “ no contract shall hereafter be made by the city council * * * and no expenses shall' be incurred * * * whether the object of the expenditure shall have been ordered by the city council * * * or not, unless an appropriation shall have been previously made concerning such expense, except as herein otherwise expressly provided.” The argument is that the contract in this case was made when, by ordinance 36, the proposition of Henninger was accepted, and that there was then no appropriation ordinance in force. The contract which it is sought to set aside in this case consists of the bonds which were in fact not issued until the 20tli of July, which was two days after the ordinance 36 and the annual appropriation bill were in force by publication, so that if it be conceded this section applies to a bonded indebtedness payable beyond the current year, issued and provided for under T S of Sec. 63, still there is no failure to comply with this requirement.

It is argued on behalf of appellees that when a debt is incurred and provided for under said 5, it is not subject to the requirements of ‘f 90 and f 92; that 5 is complete in itself and when its terms are complied with, there is no necessity to regard the requirements of 90 and 92, which are applicable merely to current yearly expenditures.

It might happen in many instances that compliance with all these provisions would be impossible, e. g., where a purchase is made and bonds issued after the passage of the annual, appropriation bill containing no clause or item touching the subject. In such case, if the construction contended for by aj)pellant is correct, the city, though having a chance to make a favorable arrangement, could not avail of it until after the passage of the next annual appropriation bill, whereby the authority conferred by 5 would become conditional and contingent in every instance upon the possibility of complying, not only with its provisions, but also with °jf 90 and ^ 92, thus superadding a qualification by construction, not found in or suggested by the language of the paragraph.

There is great force in the argument thus presented, but we do not find it necessary to pass upon it in view of the peculiar facts of this case, by which there is a compliance with all these provisions.

Considering the whole case we see nothing to which valid exception may be taken, aside from the omission to declare void the bonds issued under the resolution of March 8, 1887.

The decree is hereby so modified as to declare said bonds invalid and the injunction will be made peqietual as to them. In all other respects the decree will he affirmed. Each party will pay his own proper cost in this court.

Decree modified and affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    William H. Goff v. The Toledo, St. Louis and Kansas City Railroad Company.

      Master atid Servant — Railroads—Agent— TAability of Master for Acts of — Scope of Authority — Volunteers—Defective Rope — Pleading— Surpiusage.

    1. It seems that the agent, of a railroad company sent to the scene of an accident in charge of a wrecking crew, has the implied authority to employ additional assistance, if. in his opinion, it is necessary,
    2. The law will infer knowledge of defects in machinery and appliances provided by a master for the use of his employes, when, by the exercise of ordinary care on his part, he might have discovered the same.
    3. In an action brought to recover for injuries suffered through ihe use of a defective rope, it is held: That the second count of the declaration states a cause of action; and that it is not rendered defective by surplusage in the nature of an argument.
    [Opinion filed May 25, 1888.]
    In error to the Circuit Court of Coles County; the Hon. James F. Hughes, Judge, presiding.
    Messrs. Craig & Craig and A. J. Fryer, for plaintiff in error.
    Messrs. Wiley & Heal, for defendant in error.
    Both counts are based upon the theory than an employer is bound to furnish his servants with materials and appliances that are safe in any event. “ Such is not the law. He is in no sense a guarantor of their fitness or safety. The law imposes upon the employer only the obligation to use reasonable and ordinary care and diligence in providing suitable and safe machinery and materials.”
    “Knowledge of the deficiency must be brought home to the employer, or such a state of facts must appear as would -make it his duty to have had such knowledge.” Price et al. v. Henagan, 5 Ill. App. 234; I. C. R. R. Co. v. Jones, 11 Ill. App. 324; Shearman & Redfield on Negligence, Secs. 92, 100; C. C. & I. Ry. Co. v. Troesch, 68 Ill. 545; Camp Point Manfg. Co. v. Ballou, 71 Ill. 417; Penn. Co. v. Lynch, 90 Ill. 333; City of Rockford v. Tripp, 83 Ill. 238.
    Neither count avers that the defendant had any notice that the rope was defective. Nor does either count aver any such state of facts as would make it the duty of defendant to know.
   Wall, J.

The Circuit Court sustained a demurrer to the declaration, and rendered judgment against the plaintiff for costs. The only question is, whether a cause of action was well stated in the declaration or either count thereof. .The second count alleged, in substance, that the defendant was a railroad corporation operating a railroad, etc.; that a wreck occurred on the road, by which the track was obstructed, and that defendant sent its machinery, ropes and other apjdiances in charge of its agent and employes to clear the track; that it was the duty of defendant to furnish safe ropes, machinery and appliances for said purpose, but that it negligently furnished unsafe and insufficient ropes, and could have had notice of the unsafe condition of the ropes, hut negligently and carelessly failed to use proper care and diligence to ascertain the same; that one of said ropes was attached to a car> being a part of the wreck, and that the laborers in charge of defendant’s said agent were required to pull on said rope, but they being unable to move the car on which they were so pulling, the said agent of defendant ordered the plaintiff to take hold of the rope with said laborers and assist in the removal of the car, and the plaintiff did accordingly lay hold of the rope, using due care and diligence, and with the said laborers under the command of said agent pulled on said rope, which, in consequence of its being unsound, broke, and gave way, whereby the plaintiff was thrown down and his leg broken-We think this count substantially good.

If the question were as to the liability of the defendant to pay for services so rendered by plaintiff, in assisting to remove the wreck, we would answer it in the affirmative.

The agent thus sent out in charge of a wrecking crew would have had apparent authority to do what was necessary for the purpose in hand, and if there was need for another man or two in aid of the force at his disposal, it would be within the scope of his authority in such an emergency to employ such needed assistance, and it may therefore be assumed that the plaintiff occupied the same position as the other laborers and had the same legal rights. If the service was rendered gratuitously he would be no worse off; indeed, in such case he might well insist upon a stricter measure of liability, not unlike that of a gratuitous bailee. But regarding the parties as occupying the relation of master and servant, it was the duty of defendant to have used all reasonable and ordinary care to provide safe appliances, and the law will imply and infer notice of any defect which, by the use of ordinary care, might have been known to the master. Plaintiff might well suppose proper care had been used. Now, the allegation here made is that the defendant negligently furnished unsafe and insufficient ropes and neglected to use proper care to ascertain the condition thereof, though such fact might have been so ascertained. This is in effect a statement of a breach of the duty which the law devolves upon the master in this respect. Jt is true, the declaration also alleges it was the duty of the defendant to furnish safe ropes, etc., and it is urged that this is an allegation which would make the master absolutely liable as an insurer of the safety of the appliances furnished. This allegation is merely the pleader’s argument, and might have been wholly omitted without impairing the pleading. While 'it is unnecessary, it does not render the declaration defective. Titile^ per inutile non vitiatur. But, construing it with the other allegations above quoted, it amounts to no more than the usual averment of the duty and liability arising upon the facts alleged. Assuming that plaintiff was justified in responding to the request made by the agent of defendant, and that, as alleged, he exercised due care in doing so, a cause of action is made out. The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Alexander T. Miller et al. v. Sarah A. Kingsbury.

      Administration — Action of Debt on Bond — Parties—Surviving Partner —Pleading—Practice—■Evidence—Damages—Measure of.

    1. The legal right of action on a bond running to an administratrix for the benefit of the estate, is in such administratrix in her individual capacity.
    2. In general, the action must be brought in the name of the one in whom the contract vests the legal interest. When the contract is under seal, the action must be in the name of the obligee, though the agreement be for the benefit of another.
    3. The measure of damages upon the breach of an undertaking .faithfully to discharge the duties of a surviving partner, is the amount which would have been received in case of performance.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Adams County*, the Hon. William Marsh, Judge, presiding.
    Messrs. J. F. Carrot and J. H. Williams, for appellants.
    A default simply admits the cause of action as laid in the declaration, and when the damages rest in computation, as when the amount of the debt is fixed by the instrument sued' on, the plaintiff need not prove the execution of the instrument, but the damages may be assessed upon the production of the instrument; but even then the instrument must be produced. Tidd’s Practice, Vol 1, 578; Greene v. Hearne, 3 T. R. 301; 1 Suth. on Dam., 774, note; Roscoe, Ev. (10th Ed.), 71; Meyer v. Phillips, 72 Ill. 460; McKenzie v. Penfield, 87 Ill. 38.
    But when there is anything necessary outside of the instrument sued on, in order to fix the amount of damages, a default does not admit anything more than the cause of action and the amount of damages must be proved.
    Mr. William MoFadoit, for appellee.
    The question in this case is not as to the person to whom the money sued for upon the bond in controversy shall be paid when collected. Chadsey, Adm’r, v. Lewis, 1 Gilm. 153; Manlove v. McHatton, 4 Scam. 95.
    The simple question is, has the suit been brought by the party in whom the legal interest is vested? Lovejoy v. Steel, 18 Ill. App. 281; 1 Chit. on Plead., p. 2; Newhall v. Turney, 14 Ill. 339; Larned v. Carpenter, 65 Ill. 544.
    The instrument being a bond under seal, the obligee is the proper party to sue upon it. 1 Chitty on Plead., 3, 4; Saunders v. Filley, 12 Pick. 554; Johnson v. Foster, 12 Met. 167; Mellan v. Baldwin, 3 Gray, 486.
    In the case of the bond in suit, the legal interest is clearly in Sarah A. Kingsbury. 1 Chit. on Plead., 2-4, and cases cited.
    This is true though the promise is to Sarah A. Kingsbury, administratrix, and her successor or successors in office, the test of the truth of this proposition being that, in the event of her death, not her successor in office, but her executor or administrator, would have to bring suit for a breach of the condition. Stevens v. Hay, 6 Cush. 230, and many cases cited ; Lovejoy v. Steele, 18 Ill. App. 283, and cases cited.
    The promise in the case at bar is to Sarah A. Kingsbury, administratrix (not as administratrix), and the words “ administratrix, etc.,” are desoripiiopersonm, and may be rejected as surplusage. Newhall v. Turney, 14 Ill. 338; Jeffries v. McLean, 12 Mo. 540; Bradley v. Graves, 46 Ala. 277.

      The duty of a surviving partner to settle the copartnership business and pay off the firm debts exists independently -of any action of a court, but the Comity Court has full ¡Dower to enforce the duty. Miller v. Jonas, 39 Ill. 60; McKean v. Vick, 108 Ill. 375; Nelson v. Hayner, 66 Ill. 492; Rev. Stat. 1874, Chap. 3, Sec. 89.
    The bond in this case being for performance of a certain thing, viz., the faithful discharge of the duties of a surviving partner, the measure of damages in the case is the value of the performance. 2 Suth. on Dam., 611; Lewis v. Crockett, 3 Bibb, 197; Robertson v. Morgan, Adm’r, 3 B. Mon. 307; Cannon v. Cooper, 39 Miss. 384; Rev. Stat. 1874, Chap. 3, Secs. 85, 89.
   Wall, J.

The appellee brought an action of debt upon a penal bond against the appellants.

A demurrer to the declaration was overruled and the defendants abiding by their demurrer, the damages were assessed at §1,818.47. Judgment was rendered accordingly from which an appeal is prosecuted to this court.

There are nine different assignments of error, which, in substance, raise the points that the declaration was not sufficient; that the court erred in assessing the damages at the amount stated, in overruling the motion in arrest and in rendering final judgment.

The bond was given by appellants pursuant to an order of the Circuit Court of Adams county entered in a certain suit in chancery brought by appellee, administratrix of Albert B. Kingsbury, deceased, against appellant, Alexander T. Miller.

Albert B. Kingsbury, deceased, and the said Alexander T. Miller were partners up to the death of said Kingsbury, and, as shown by the recitals of the bond, the object was to secure the faithful performance of the duties devolving on the surviving partner. The condition of the bond relied on in the present suit was in these words: “ Kow, therefore, if the said Alexander T. Miller shall faithfully discharge his duties as the surviving partner of the late firm of Miller & Kingsbury, composed of the following members, to wit: said Albert B. Kingsbury, deceased, and said Alexander T. Miller, the said Alexander T. Miller being the surviving partner of said Albert B. Kingsbury.3’

By way of assigning a breach of this condition, it was alleged that, after the execution of the bond, the said Miller reported to the County Court that he had in his hands over and above all outlays the sum of §3,772.59, and was ordered by said court to pay to the outside creditors of the firm, as shown by the schedule, forty per cent, upon tlieir respective claims within one day from the date of the order, and that he pay ont the residue,pro rata, within ten days; that although he paid out the forty per cent, he neglected and refused to pay the proper pro rata, of the residue to one of the named creditors, the First National Bank of Quincy, although requested, etc.

The main objection taken to the declaration below seems to have been that the suit was not brought by the plaintiff as administratrix.

The undertaking was with appellee after the death of her intestate, and while she is described as Sarah A. Kingsbury, administratrix of the estate of Albert B. Kingsbury, deceased, the latter words are mere descriptio personas. The agreement was with her in her individual capacity, and while the benefit of whatever she might recover would inure to the estate and its creditors, yet the legal right of action was hers. She was, therefore, the proper person to bring the suit.

We are of opinion the cause of action was alleged with sufficient technical accuracy. Had the promise been made to the deceased, it would have been proper to declare as administratrix; but as it was made to the plaintiff, although on account of, and in respect to, the estate in her charge, it was proper to lay the demand in her individual capacity. 2 Williams on Executors, Chap. 2; Newhall v. Turney, 14 Ill. 338.

In general, the action must be brought in the name of the party in whom the legal interest is vested by the contract, and when the contract is under seal the action must be in the name of the obligee, though the agreement may be for the benefit of another. 1 Ch. Pl. 2, 4; Ganzert v. Hoge, 73 Ill. 30; Moore v. House, 64 Ill. 1 2. The declaration was good and the court properly overruled the demurrer.

So far as the condition upon which the breach is assigned was concerned, there was not occasion to wait for an order of the Circuit Court. Had the breach been assigned upon another condition contained in the bond for an accounting with the plaintiff, after the payment of partnership debts, it may be that the phraseology of that condition would require such an order.

The most important question is as to the measure of damages. The undertaking was to faithfully discharge the duties of- Miller, as surviving partner.

He agreed to do this and failed. Because of this failure, the estate is liable to pay to the creditors the amount not paid by the surviving partner. This was not a mere contract of indemnity, but it was an absolute agreement to discharge a specified obligation, and it would seem clear that the true measure of damages, whether we consider the creditor, who would have received the money, or the estate, which must now pay ■ it, is the value of the contract if it had been performed. 2 Sutherland on Damages, 611, and cases there cited.

The demurrer admitted all the facts well pleaded, and we think the data were so clearly alleged that the court might well have assessed the damages, except that perhaps it was necessary to prove when the demand was made from which time interest was computed.

As to all else, there was no occasion for any oral or other evidence. The testimony which the court heard was mainly to the identification of the various matters alleged in the declaration and admitted by the demurrer. Mass. M. Life Ins. Co. v. Kellogg, 82 Ill. 614.

The appellants suffered no injury by the action of the court in this respect.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    David A. Watts v. Lafayette McLean.

      Mandamus — Judgment against School District — Authority of Treasurer —Secs. 49 and 67, Chap. 122, It. S'. — Amendment—Demurrer.
    1. School officers possess only such powers as are directly granted by statute, or result by fair implication from those so granted. .
    2. In the absence of an order by the directors or a court of competent jurisdiction for the payment of school funds, the treasurer of a district can not be required by mandamus to pay a judgment against such district from funds collected under a special levy for that purpose.
    3. A copy of a special levy by school directors, merely certified by the clerk of the trial court, is no part of the record.
    4. Where a demurrer to a petition for a mandamus is overruled and judgment rendered for the petitioner, this court can consider the petition only in the light of its averments.
    [Opinion filed May 25, 1888.]
    Ik error to the Circuit Court of Clark County; the Hon. J. W. Wilkin, Judge, presiding.
    Messrs. Bell & Green, for plaintiff in error.
    See. 49, Chap. 122, R. S., provides the only means for the collection of a judgment against a hoard of school directors, and it has been frequently passed upon by the courts of this State.
    In Botkin v. Osborne, 39 Ill. 101, the Supreme Court, after quoting Sec. 49, say: “ This is the only mode provided by law for enforcing judgments in such cases.”
    In Thomas v. Urbana School District, 71 Ill. 283, the court again quotes Sec. 49, and say: “ By the enactment of this section the Legislature provided the mode by which a party having a claim against a board of directors could enforce its collection. If the plaintiff has a claim against the Board of Education, he must proceed according to this statute.”

      In Board of Education v. Neidenberger, 78 Ill. 58, the court again refers to Sec. 49, and say: “ Here :is a sure and complete remedy given for the enforcement of all just claims against such bodies. The ]Darty has but to obtain his judgment, and, if there be. money in the treasury, to obtain an order on the treasurer for its payment, and if there is no money applicable to its payment, then to obtain a writ of mandamus to compel the levy and collection of a tax for its payment.” See also Watson et al. v. Abry, 9 Ill. App. 280.
    The law prohibited the payment of the money by Watts, without an order drawn by the school directors, as required by Sec. 67, and there is no averment in the petition that any such order was presented to Watts, when demand of payment was made. The evident purpose of joining the school directors with the treasurer in the mandatory writ provided for in Sec. 49, is that they may draw the order provided for in Sec. 67. Without such order no money can be legally drawn out of the treasury.
    Mr. E. Callahan, for defendant in error.
   Wall, J.

This was a petition for mandamus by the plaintiff in error against the defendant in error, brought in the Circuit Court of Lawrence county to the February term, 1887, at which term the venue was changed to the Circuit Court of Clark county.

The cause having been transferred to the latter county, it came on to be heard at the April term, 1887, upon a demurrer to the petition. The demurrer was tiled in the Circuit Court of Lawrence county, before the venue was changed; but it would seem, as is stated in the abstract, that the defendant did not appear in Clark county, and that the demurrer was not argued on his .behalf. The demurrer was overruled and judgment was rendered according to the petition with costs.

The only question now arising is whether the petition contains such allegations as to warrant the relief therein sought. It alleges that at the-' term A. D. 18 — , the. petitioner recovered a judgment in the Circuit Court of Lawrence county, for §179.78 and costs of suit, against the school directors of District Number one, Township Number five, North, etc., in said county, which is wholly unsatisfied. That said defendants (the school directors), afterward levied a tax on the taxable property in their district, for the express purpose of paying said judgment; that the tax so levied wuis extended, etc., and that of the tax so levied the sum of §131 xvas collected and was paid over to the defendant in the petition (plaintiff in error), as treasurer of said township, prior to January 1, 1887; that after the said sum so collected was paid over to said defendant treasurer, the petitioner demanded of him that he pay the same to him in part payment of said judgment, but that said defendant, so being such treasurer, refused to pay the same over to petitioner, wherefore petitioner prayed that by writ of mamdamus the said defendant might be peremptorily required to pay to petitioner the said sum of §131 in part payment of said judgment.

It is provided by Sec. 49, Chap. 122, that “If judgment shall be obtained against any township, board of trustees, or school directors, the party entitled to the benefit of such judgment may have execution therefor as follows, to wit: It shall be lawful for the court in which such judgment shall be obtained, or to which such judgment shall be removed by transcript or appeal from a justice of the peace, or other court, to issue thence a writ commanding the directors, trustees and treasurer of such township to cause the amount thereof, with interest and costs, to be paid to the party entitled to the benefit of said judgment, out of any moneys unappropriated of said township or district, or if there be no such moneys, out of the first moneys applicable to the payment of the kind of services or indebtedness for which such judgment shall be obtained, which shall be received for the use of such township or district, and to enforce obedience to such writ by attachment, or by mandamus, requiring such board to levy a tax for the payment of said judgment, and all legal process, as well as writs to enforce payments of a judgment, shall be served either on the president or clerk of the board.”

The Supreme Court have repeatedly held that this is the only mode of enforcing a judgment against a school district Botkin v. Osborne, 39 Ill. 101; Thomas v. Urbana School District, 71 Ill. 283; Board of Ed. v. Neidenberger, 78 Ill. 58.

By Sec. 67 of the same act, it is provided that funds in the hands of the treasurer shall be paid out on the order of the directors of the district. The Supreme Court, in passing upon the powers of school officers, have said that they possess only the authority granted by statute and such as may result by fair implication from what is granted, and have shown a clear purpose in defining these powers to construe them strictly. This is in accord with the plain policy of the statute . and is essential to the protection of the school fund. Glidden v. Hopkins, 47 Ill. 526; Newell v. School Directors, 68 Ill. 514; Peers v. Board of Education, 72 Ill. 508,

The treasurer is not authorized to pay out the money in his hands until an order drawn as required by the statute is presented, or until a, court of competent jurisdiction shall have made an order for that purpose, in pursuance of Sec. 49 above quoted. Hence, in this case, unless one of these things had been done, this treasurer was justified in declining to pay upon the demand made by the judgment creditor, and of course, if it was not his duty to comply with that demand he cannot be subjected to the cost and vexation of a proceeding by mandamus.

It is not averred in this petition that a mandatory order had been obtained upon this judgment. It is merely averred that there was a judgment and that a special tax had been levied to pay it, the proceeds of which levy were in the hands of the treasurer; but there is no averment that an order had been issued by the directors upon the treasurer. The treasurer had no power or authority to pay the money upon the judgment merely because he may have supposed or known, that it was collected for that purpose, and he was clearly right in refusing to pay it without an order. He may insist upon a proper voucher when he pays.

Counsel for defendant in error seem to concede all this by their agreement, in which they insist that the mandatory order under Sec. 49 had been issued, and that the tax had been levied in obedience thereto, and they have caused the clerk to certify to a copy of the levy made by the directors, being one of the files of the case, which would seem to indicate that there had been such an order. The paper thus certified is not made a part of the record by bill of exceptions or otherwise and is not properly before us.

It is urged that, as appears by the record, the court heard evidence after overruling the demurrer, and it must be presumed there was ample support in the proof thus presented for the judgment that followed. Of course we can consider the petition in the light of its averments only, and it can not be aided by any presumptions of the sort suggested.

It is not presumable that the case was any better than as stated by the pleader, or thp,t any evidence was offered or in existence not within the substantial averments of the pleading. It is suggested by plaintiff in error that the date of the judgment may be very important; that the blanks in the petition should be filled so that it may appear whether the judgment is or is not barred by lapse of time. We think there should be an amendment in this respect, though this would not make the petition good if there has been no mandatory order as required by Sec. 49.

For the reasons indicated the judgment will be reversed and the cause remanded.

jReversed and remanded.


text:
    David A. Watts et al. v. James H. Stoltz et al.

      Injunctions — Dissolution — Damages — Suggestion of School Tax — Change of Venue.
    1. Upon a bill to enjoin the collection of a certain school tax, it is held: That the order changing the venue to another county, though very informal, was sufficient; ancl that, in the absence of anything to the contrary, it will be presumed that the original files were duly transmitted.
    2. To sustain an allowance for damages upon a dissolution of an injunction, the evidence should be preserved in the record or the decree should contain such a recital of the proofs as to justify such allowance.
    [Opinion filed May 25, 1888.]
    In error to the Circuit Court of Clark County; the Hon. J. W. Wilkin, Judge, presiding.
    Messrs. Bell & Green, for plaintiffs in error.
    Mr. E. Callahan, for defendants in error.
   Wall, J.

This was a hill in chancery, filed in the Circuit Court of Lawrence county, by the plaintiffs in error, against a part of the defendants in error, to enjoin the collection of a certain school tax. A writ of injunction was obtained on filing the bill. The defendants in error who were not made defendants in the bill as originally filed, were, on their own application setting up an interest in the subject of the controversy, allowed to come into court as defendants and. answer the bill. At the August term, 1886, of the Lawrence Circuit Court, the venue was, by agreement, changed to Clark county, and at the term of court in the latter county held in October of the same year the cause was heard and the hill dismissed.

A suggestion of damages on account of the improper issuance of the injunction was then presented to the court, but the hearing of this matter was not had until the April term, 1887, when damages were assessed at $57.50.

It does not appear that the plaintiffs in error, or the original defendants to the bill, followed the case to Clark county, and the action of the court'in hearing the case was at the request of the other defendants to the bill.

It is now assigned as error, first, there was no order of the Circuit Court of Lawrence county changing the venue to Clark county. The order relied upon is in these words: “And afterward, to-wit, on the seventh day of the term came again the parties herein, by their solicitors, and by agreement a change of venue was taken to Clark county, Illinois, and the clerk was ordered to transmit papers in the case.” This is certainly a very informal entry for such a purpose, but it was the order of the Circuit Court of Lawrence county, and its purport and meaning can not be misunderstood. We regard it as sufficient.

It is assigned as error, second, that the Circuit Court of Clark county erred in taking jurisdiction, for the further reason that there is nothing in the transcript sent by the clerk of the court in Lawrence county to show that the papers transmitted were the original files of the court in the case. There is nothing in the certificate to show that any papers were so transmitted, but it is evident that the papers in the case came to the hands of the clerk of the court in Clark county, and it is to be presumed this was done in the mode required by law. The statute does not, in terms, require any particular certificate by the clerk of the county from which the case is sent, that the papers transmitted are the original papers, but the usual practice is to do so and to refer to them by such description as will identify them.

It was the duty of all parties interested in the case to follow it to Clark county, and if there was any want of a certainty in the certificate, or any failure to forward all the files, the orders necessary to obviate the trouble would have been promptly made. It is not suggested that the papers were not all sent, but that it does not appear that they were.

We will presume that the duty of the clerk of the Lawrence Court was properly performed, the law not requiring any particular evidence of the performance, and there being no reason to infer to the contrary.

It is also assigned as error, that there was no written suggestion of damages filed in the Circuit Court of Clark county. This objection is obviated by an amendment to the record filed in this court at the instance of defendants in error, from which we find that there was a formal suggestion which had been filed in the case before it left Lawrence county, and which was filed in Clark county on the 15th of October, 1886. The certificate of the Circuit Court of Lawrence bears date October 14, 1886. The hearing of the cause resulting in the dismissal of the bill and a motion for assessment of damages occurred on the 29th of October. The October term of the Clark Circuit Court, 1886, began according to law on the third Monday, being the 18th day of the month.

We think there is no such defect in the record as should work a reversal of the decree for the reasons thus far considered.

It is, however, objected that the evidence upon which the damages were assessed is not preserved. This is met by the suggestion that the findings of the court contain all that is necessary, in this respect, by way of recital.

The recital is that the court finds, after hearing the evidence' “that said defendants have sustained damages by reason of the wrongful suing out of the said injunction, by said complainants, in the sum of $50 for their solicitors’ fees, and in the further sum of of $7.50 for personal expense of the solicitors of said defendants, while engaged in and about the business of procuring the dissolution of said injunction.”

This is merely the conclusion" of the court upon the evidence offered, but it does not amount to such a recital of the proof, as that it,can be determined whether the conclusion reached was a proper one.

In the case of Albright v. Smith, 68 Ill. 184, the Supreme Court say: “ Merely showing that the court heard evidence without showing what facts are proved, leaves us quite as much in the dark as we would have been, had the record merely shown the amount which was ordered to be paid. The record should show that the amount assessed as damages was authorized by the facts proved;” and the court referred to Goodwillie v. Millimann, 56 Ill. 525, where it was said in reference to fees in partition cases that, “ as a rule of practice the evidence upon which such an allowance is made should be preserved in the record. Where such large sums are allowed and the rights of litigants are likely to be so materially affected, they should not be deprived of having the decree reviewed in an appellate court.”

So in Spring v. Collector, etc., 78 Ill. 107, where an allowance of §200 for solicitor’s fees was under consideration, the court say: “ The evidence upon which the allowance was made was not preserved in the record, without which, as this court has frequently ruled, the decree can not be supported, and the recital here in the decree that the finding of the court was on evidence heard without showing what facts were proved was insufficient in this respect.” The Supreme Court have been disposed from the beginning to supervise with care these assessments of damages, and have enforced with uniform strictness the rule stated.

The record before us does not contain such a recital of evidence or such a finding of facts as enables us to determine whether the conclusion reached was proper or not, and under the practice as settled by the decisions above referred to, Jevne v. Osgood, 57 Ill. 340, and others of like effect, we feel compelled to reverse so much of the decree as relates to the assessment of damages. The decree dissolving the injunction and dismissing the bill is affirmed, but the decree entered at the April term, 1887, assessing damages, will be reversed and the cause will be remanded for further proceedings in that behalf. The costs in this court will be equally divided, each party to pay one half.

Affirmed in jpa/rt and reversed vnga/rt.


author: Conger, P. J.

text:
    John F. Boyer v. Hattie C. Sherer.

      Breach of Promise of Marriage — Evidence.
    In an action for breach of promise of marriage, this court reverses the judgment for the plaintiff, the verdict being unsupported by the evidence.
    [Opinion filed May 25, 1888.]

      Appeal from the Circuit Court of Edgar County; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Sellar & Dole, Henry S. Tanner and Egbert L. McKinlay, for appellant.
    Mr. Horace S. Clark, for-appellee.
   Conger, P. J.

This was a suit in assumpsit, for the alleged breach of a marriage contract. Appellee recovered a verdict for $1,000, upon which judgment was rendered, and ap> pell ant brings the case to this court for review.

Appellee was a married woman up to December 11, 1882, when she procured a divorce in Terre Ilaute, Indiana, where she then lived. On or about the 20th of December, 1882, she, at the solicitation of appellant, removed to Kansas, in Edgar county, the home of appellant, and lived in a house furnished by him until the fall of 1886, when apjie.llant was married, and on the 2d day of September, 18E>6¡ this suit was instituted. Appellant and appellee were criminally intimate from some time in 1881, until a short time before appellant’s marriage in the fall of 1886.

They contradict each other flatly as to the alleged contract of marriage, appellee testifying that it was originally made prior to her divorce in December, 1882, and renewed from time to time afterward, while appellant positively denies that such a contract was ever entered into by him.

The evidence offered by appellee as tending to corroborate her story is principally contained in a large number of letters written her at various times from 1882 to 1886 by appellant. We have carefully read this correspondence. It is so foul and disgusting, so full of hypocritical cant, lechery and lust, as to convince us that instead of tending to prove a desire for honorable marriage, it but expresses the impure desires of one toward his mistress, and it is difficult to understand how appellee could have regarded it in any other light. Certainly no woman who had the proper respect for herself, would for one moment rely upon such letters as appear in the record, as showing an honorable and upright purpose upon the part of the writer.

She also introduced two of her oxvn letters written to appellant just before bis marriage, but after she lenexv it was to take place, and in them, while she seems to regret that tlieir relations are to terminate she makes no objection to his marriage, nor intimates that lie is in any xx;ay bound to lier. There is, besides, the testimony of some of the .neighbors as to admissions of appellee, which tend to contradict her story.

After a careful consideration of the evidence, xve are of opinion it did not warrant the jury in finding that a contract of marriage existed hetxveen the parties, and we think the case should have been submitted to another jury.

The judgment of the Circuit Court will therefore be re versed and the cause remanded.

Heversed and remanded.


author: Pleasants, J.

text:
    Clifton H. Moore, Administrator, etc., v. Peter T. Sweeney, Administrator, etc.

      Administration — Proposition of Lato — Sec. 42, Practice Act — Widow’s Award— Waiver — Fortner Adjindication.

    1. An indorsement by the court upon a proposition of law submitted, which amounts to a refusal to consider the same, sufficiently complies xvitk Sec. 42 of the practice act.
    2. A creditor of a deceased widow can not, in order to collect his debt, institute proceedings to have her axvard in the estate of her husband set off, she having used the entire estate without asserting such right.
    3. Where a widow, appointed executrix of her husband’s estate and made his sole devisee, has failed to administer and has sold the properly, used the proceeds and removed to another State, her creditors can not claim the widow’s axvard. Such acts amount to a waiver thereof.
    [Opinion filed May 25, 1888.]

      Appeal from the Circuit Court of DeWitt County; the Hon. Cybus Efleb, Judge., presiding.
    Messrs. Moobe & Wabneb, for appellant.
    Mr. P. T. Sweeney, for appellee.
   Pleasants, J.

The material facts in this case are as follows: Isaac Loucks died at Clinton, De Witt county, June 25, 1879, leaving a will by which he devised and bequeathed all his property of every kind to his wife, Larney Loucks, and appointed her sole executrix, requesting that she be not required to give a bond or file an inventory as such. He left no minor child. The property consisted of household furniture of value not exceeding §50, and the homestead lot eight, in block one, of Madden’s First Addition to Clinton. On May 15, 1882, the widow presented the will for probate and it was admitted, but she never took out letters testamentary. Cn that day she executed to William Bishop a mortgage, doubtless intended to cover the homestead, but describing it as lot one in block eight, to secure the payment of §179.80, and on June 28, 1883, conveyed it absolutely, by warranty deed, with the proper description, to Huldah Basback, who conveyed to S. F. Lewis. Having also converted to her own use all of the personal property without taking a step further toward administration, she removed to the" State of Hew York, and there died about April 15, 18,84, intestate.

In December, 1884, upon petition of appellee as a creditor of Isaac Loucks, letters of administration with the will annexed were granted by the County Court of DeWitt county to John J. McGraw, and after due presentation and allowance of his claim for §501, a petition was filed for leave to sell the real estate mentioned to pay it, making said Bishop and Lewis, and the tenant of Lewis, who was then in possession, parties defendant. Bishop and Lewis answered, and on hearing the proofs the County Court dismissed the petition. On appeal to the Circuit Court, this order was set aside and a decree entered in accordance with the prayer of the petition; which judgment was by this court affirmed. Lewis v. McGraw, 19 Ill. App. 313.

Bishop then procured the appointment of appellant as administrator of the estate of Larney Louclcs. Letters issued March 4, 1886.

About this time McGraw died, and appellee was duly appointed administrator de bonis non in his place, who thereupon sold the homestead under the decree of the Circuit Court, affirmed as above stated, to Edward J. Sweeney for §260, and made report of the same to the Circuit Court, which was approved.

Appellant, as administrator of the estate of Larney Louclcs, presented his petition to the County Court for the appointment of appraisers to appraise, allow and set off to him as administrator, the widow’s allowance in the estate of Isaac Louclcs, or the value thereof. Appellee answered and resisted this petition, hut the County Court granted it, and appointed the appraisers, and the Circuit Court, on appeal, affirmed the order. A further appeal to this court was prayed and allowed, but not perfected. The appraisers estimated the personal property at §32.75, and fixed the amount of the widow’s award at $700. Appellant, on leave granted, amended the claim he had previously filed, by raising it from §600 to §700, and, the court having approved the appraisers’ report, selected the personal property, inventoried at the appraised value, and elected to take the residue, §667.25, in money. Relinquishment and selection filed March 7, 1877.'

Appellee then moved to strike the relinquishment and selection from the files, and filed objections to the allowance of the widow’s award and appellant’s claim thereto against the estate of Isaac Louclcs, for the same reasons, in substance, which he had set forth in opposition to the appointment of the appraisers. The motion and objections were overruled, and judgment was entered for appellant for the amount he had elected to take in money, as a claim of the second class, to be paid by appellee in due course of administration. From this judgment an appeal was taken, and on trial thereof without a jury (by agreement of the parties), the Circuit Court found the issue against the claimant, refused a new trial, and entered judgment disallowing the claim. From that judgment this appeal is taken.

Appellant makes two technical points. First, that the court refused to mark a certain proposition of law submitted by him either as “held” or “refused,” but indorsed thereon a statement that it did not consider and pass upon said proposition because it did not include and was not based on the leading facts upon which the case was tried.” Although not a literal compliance with the terms of the practice act, this indorsement clearly shows that the court did consider and pass upon it, and did refuse it as inapplicable to the case. It might as well have been marked “refused.” We think that was the proper disposition to be made of it. It was hardly a proposition of law, in the sense of the statute. In effect, it asserted that, upon the few admitted facts therein stated, the claimant here was entitled to take and have the amount claimed out of the proceeds of any land that had belonged to Isaac Loucks in his lifetime, and which his administrator had sold under order of the County Court to pay debts of his estate.” It entirely ignored the questions of laches and waiver and estoppel. If it ought not to have been held and the court had refused to notice it in any way, such refusal could have done the appellant no harm. The record shows the proposition and the court’s disposition of it. We think that for all the purposes contemplated by the statute it was in effect marked refused; but if not, the error is not material.

It is claimed that the right of the widow’s administrator to have her award estimated and set off to him as siieh, out of the estate of her deceased husband, is res adjudícala by the order of the County Court appointing the appraisers, affirmed by the Circuit Court and not further contested. But. that order could not determine his right to the particular claim here contested. For how could that question arise until appraisers were appointed and executed their warrant?

Coming then to the merits, we are of opinion that appellant’s claim was properly disallowed, for the reason that his decedent by her own act had barred her right, and therefor also his, to treat this land or the proceeds of its sale as of the estate of her husband. She treated it as her own, and in a way absolutely incompatible with any just claim by her or her representative now to treat it otherwise. As her own she has received the full benefit of it. It legally ivas her own, except as to creditors of her hmbind. No such creditor has asserted or can now exercise his right as against her. She has in fact held and enjoyed, and by her own voluntary, deliberate, solemn and irrevocable act — legal and valid as against her —disposed of it as fully and completely as if there had been no such creditor. The law in his favor has not operated and can not now operate against her. Having once, as devisee, asked and received for it a full consideration which can not he restored or recovered, she ought not to be permitted again to dispose of it for her own benefit as creditor of her husband. If she still has a claim as such, it must be against something else of her husband’s estate, and not against the property she has conveyed. She could dispose of it absolutely but once on co-existing grounds of right, however numerous, distinct or just they might be.

Again, if this property was ever subject to her claim she was not hound to assert it. She might waive it. The statute allowing it is for her benefit. Her creditor could not assert it, nor compel her to assert it for him. If she intended or desired to apply for this allowance, it was her duty to do so and have the proper steps taken within a reasonable time. Furlong v. Riley, 103 Ill. 632. Her death did not occur until nearly five years after she was appointed and might have acted as executrix. That time might not of itself bar her application, though the law fixes no particular period of neglect as constituting laches, but in connection with her positive acts in appropriating the entire estate as devisee, and removing to another jurisdiction, may well be held to he a waiver of her claim. "Whether by reason of ignorance of the law or not, it is clear that she never in fact contemplated any such proceeding. It is instituted wholly by and in the interest of her creditor; and for the reasons indicated we think the claim, as against appellee and the fund in question, is without merit or legal right.

Judgment affirmed.


text:
    Illinois Central Railroad Company v. Blanche Latimer.

      Railroads — Removal of Child from Train — Non-Payment of Rare— Personal Injury — Rond for Costs — “ Station” — Damages—Evidence— Instruction s — Declaration—Misj oin der.

    1. In a suit brought by a minor, by her next friend, the bond for costs may be filed, by permission of the court, after the commencement of suit.
    2. The word “station,” in the statute, means the point or place where passengers usually board and leave trains.
    8. In an action brought by a child, by her next friend, against a railroad company to recover damages resulting from her removal from the defendant’s train at a place other than a station, it is held: That the declaration is sufficient, there being no misjoinder; that evidence to show that a “wild train ” was following the train from which ¡ the plaintiff was removed, was properly admitted; that there is no substantial error in the instructions; and that the verdict for $2,000 in favor of the plaintiff is not excessive.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of DeWitt County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Moore & Warner, for appellant.
    Messrs. R. A. Lemon.and Graham & Monson, for appellee.
   Conger, P. J.

The principal facts in this case are as follows :

Blanche Latimer, the appellee, aged six years, resided with her parents at Clinton, Illinois, but had been visiting for a . few days her friends at Wapella, a village of some three hun-1 dred inhabitants, situated about four and a half miles north of Clinton, on appellant’s railway.

On the 14tli of June, 1887, she went to the depot at Wapella for the purpose oí returning home on the fqur o’clock train. She had with her a large paper hat box and its contents, making it quite heavy for so small a child to carry. At the depot she met her uncle, who resided in the village, who led her to the rear car and placed her in a seat.

After the train had gotten under way, the conductor, Finch, proceeded to take up the tickets and collect the fares. When he reached appellee he asked her for her ticket and she replied she had none. He then asked her to pay her fare in money, and she told him she had none. He then asked her where she was going, but he says he could not understand her answer. He 'then asked her whose child she was and she said she was going to Clinton. Finch told her, then, he would have to put her off, signaled the train to stop, walked back to the rear end of the car, motioned to the little girl to come to him, which she did. Finch says that he got down on the ground and lifted her, with her bundle, to the ground and led her around on to the track in the rear of the train, when the child immediately started to run up the track toward the station and he called to her not to run. She obeyed him and slackened her pace to a walk, while the conductor signaled the train to start' and left her. The brakeman of the train, Keefer, says he thinks Finch stood on the step of the coach and lifted the child by her arm to the ground at the side of the car, and she went around on the track by herself.

The place where appellee was thus put off was about 1,700 feet from the platform at the depot, where passenger trains stopped to take on and put off passengers.

While within the corporate limits of Wapella, it was about 240 feet south of the last street of the village in that direction, and the track at that place was fenced.

In going north from the point where appellee was put off the train, she would have to go about 240 feet, where the fencing of the track ended, and where was a cattle guard between thirty and thirty-four inches deep, and immediately beyond it a culvert twelve feet long and six deep, with ties upon it eight inches wide and eighteen inches from center to center.

Appellee was met between the point where she was pnt oil and the depot, by her uncle, and he testifies that she was crying and seemed frightened.

Evidence was given to the jury tending to show that she seemed to suffer for some time from fright and nervousness, and that she manifested a disinclination and fear of talking about going upon the cars, which had not been the case before. There was also medical testimony given to the jury, both to sustain and overthrow the theory that the child, at the time of the trial below, was suffering from some functional derangement of the heart, caused by the fright occasioned by her being expelled from the train. The jury returned a' verdict for §2,000, upon which judgment was rendered.

The suit was commenced by appellee, who sued by her mother, as her next friend, without previous authority of the court, and without in the first instance giving a bond for costs.

Appellant moved to dismiss the suit for this reason, and the court permitted appellee to file a cost bond, and thereupon refused to dismiss the suit, and this is urged as error, and the proviso of See. 18, of the act as amended and in force July 1, 1881, is relied upon to sustain this view. It is as follows:

11 Provided, that any suit or proceeding may be commenced and prosecuted by any minor, by his next friend, without any previous authority or appointment by the court, on such next friend entering into bond for costs, and filing the same in the court in which, or with the justice of the peace before whom such suit or proceeding, is instituted.”

We think the court rightly exercised its discretion in the matter, and that a fair and reasonable construction of this section does not make the filing of the bond prior to the bringing of this suit necessary for the jurisdiction of the court, but that if a bond is filed afterward by permission of the court, it is sufficient.

The object of the law, which is both to protect the minor’s estate and the officers, and adverse parties, is fully satisfied, and it would be a harsh and unreasonable construction to say that when, perhaps by inadvertence or mistake, a bond is not filed, that it can not be remedied, but a minor’s suit must be dismissed.

The objection to the declaration that there was a misjoin" der, is not, as we think, well taken. The first count charges that the appellant, as a corporation, assaulted her; the second, that she was a passenger upon appellant’s train, and that one Finch, the conductor of the train, in the employment of appellant, did with force, etc., remove appellee from said train, etc., at a place other than a regular station, etc. The second count is substantially a charge that the appellant, by its conductor and agent, did the vTong to appellee, and is sufficient.

Appellee was permitted to prove, over the objection of appellant, that Finch’s train carried a flag which indicated that a wild train was following his, and that such wild train did pass Wapclla about twenty or twenty-five minutes after the passenger train had left.

We see no objection to this evidence, for it was one of the circumstances which the jury had a right to know and take into consideration in determining the character of the expulsion.

The fact that the conductor knew that a wild train was following him, and might be expected in a few moments, might well be regarded as important when a little child but six years old was to be left upon the track, with a cattle guard and culvert, of the character already described, to be crossed.

Had appellee been a grown woman, the fact that a train might pass before she could get back to the depot would be of no consequence, as it would be presumed she would be able to avoid the danger.

Neither does the fact that the child had reached' the depot and left the track before the wild train passed, make the evidence improper.

The jury had aTight to know the condition of affairs, as it appeared to the conductor at the time of the expulsion, and from that characterize his action.

Instructions holding that the word “ station,” as used in the statute, included the limits or inhabited portions of cities and villages in which the depot building is situated, and that a passenger may be lawfully removed from trains for non-payment of fare anywhere within the inhabited portion of such limits, were presented by appellant to the court, and refused. In thus holding the court committed no error.

A regular station, as used in the statute, means the point or place where passenger trains usually receive and discharge passengers — where persons would have a riglit to have trains stopped for entering upon or leaving them. Chicago & Alton v. Flagg, 43 Ill. 368.

Objection is made to some of the other instructions, but when they are all considered together, we can not say that appellant has not had a substantial presentation of the law applicable to the case. Some of them are not quite accurate, but, taken as a whole, fairly present the law of the case.

It is urged that the damages are excessive. Under ordinary circumstances this objection would be well taken. Had appellee been of sufficient age to justify the belief that she could have returned to the depot without harm or danger to herself, no one, we presume, would insist that she ought to recover any such sum as she did. But the circumstances of this case are so unusual that it is easy to believe that the conductor acted with a wanton disregard of the rights of appellee. When it is remembered that appellee was a delicate little girl, only six years old, taken off the train — no matter how gently —suddenly left alone upon the track, and the train speeding away, it is a wonder that, in her fright and agony, she had presence of mind enough to know the way back to the depot.

Just how much a railroad company ought to pay for such treatment is difficult to measure by any exact standard, and the jury having determined it without prejudice or passion, so far as we can discover from a careful inspection of the record? we do not feel justified in interfering with their conclusions. A majority of the court are of opinion that the judgment should be affirmed.

Judgment affirmed.


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    The German Insurance and Savings Institution v. Frederick G. Vahle.

      Negotiable Instruments — Discharge — Note — Principal and Surety— Collateral Security — Extension of Time — Evidence—Instructions.
    L Where the payee of a personally secured note takes, as collateral security, a note secured by mortgage maturing at a later date this does not of itself, in the absence of an agreement to that effect, extend the time or discharge the surety.
    2. In the case presented, an instruction to the effect that the mere taking of a note having a longer time to run would not he conclusive proof of an extension, was improperly refused, and evidence to show whether there was an agreement to extend the time of payment was improperly excluded.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Mr. Joseph N. Carter, for appellant.
    A contract between the holder of a promissory note and the principal, to extend the time of payment in order to discharge the surety, must be a binding contract, and founded upon a good and sufficient consideration; and must be an agreement to extend the time of payment for a definite period. It must also have been entered into by the holder of the note and the principal debtor; and the debtor seeking to avail himself of the defense of such release must be simply surety, and known by such holder to be such at the time of such contract. Gardner v. Watson, 13 Ill. 347, 352 and cases there cited; Flinn v. Mudd et al., 27 Ill. 323.
    Mr. Chester A. Babcock, for appellee.
   Conger, P. J.

This was a suit by appellant against appellee upon a promissory note. The principal facts are as follows: On the 29th of August, 1883, Conrad Schroder and John B. Tolle, together with appellee, executed to the appellant their promissory note for $800, due in one year from date. The money was paid to Tolle. Schroder and Tolle seem to have been the principals in the note, while appellee was a surety only. The note was not paid at maturity, and on the 3d of September, 1884, the appellant being desirous of further security, Schroder made an arrangement with the officers of the appellant by which he executed to appellant a note for $3,200, dated upon that day and due one year thereafter. This note for $3,200 included the sum of $2,400, which appellant furnished to payoff an existing incumbrance on Schroder’s farm to one Baker, and the $800 note previously described and involved in tiiis suit. Schroder, at the same time, executed a mortgage on. his farm to secure this $3,200 note.

It is insisted by tlie officers of appellant that the arrangement was, that if Schroder would procure the signature of Tolle and appellee to the new note for $3,200, then the $800 note should be considered paid and surrendered up to Schroder; but if they did not, appellant would continue to hold the $800 note, and hold the excess of the new note above the amount paid to Baker as collateral thereto, and apply any excess that might arise by sale of the property mortgaged, upon the $800 note.

Schroder does not seem to be entirely clear in bis recollectiqn upon this point. He is asked upon cross-examination the following question: And the balance of that $3,200 was to be as security for the $800 note, .wasn’t it?” To which he replied: “I don’t think there was anything said about that. I did not take up the $800 note. I thought the others would sign the $3,200 note. I didn’t-know surely that they would.”

Appellee never signed the $3,200 note. Appellant afterward foreclosed and sold under their mortgage, and, it appears, bought in the property at the sum of $2,800; but whether there was anything left to apply on the $800 note in suit after paying the expenses and the $2,400 loaned to pay off the Baker mortgage, does not appear, the court refusing to let appellant make the proof upon that point.

The theory of counsel for appellee seems to he that the mere fact that appellant took from Schroder the note for §3,200, secured by mortgage, which included the original note of 8800, made a valid extension of time on the latter note until the former matured, and thereby worked the release of the appellee as surety upon the §800 note. The following extract from Ills brief seems to sustain this view.

“Was the extension for a definite time? Appellant’s third point, the testimony of the president, secretary and attorney of appellant, just above cited, answers this query. If the 83,200 note was paid, the §S00 note would be paid. This necessarily contemplates awaiting the maturity of the 83,200 note. If the mortgage was foreclosed for non-payment then the proceeds of the foreclosure sale were to be applied, first to costs and expenses of foreclosure and sale, then to the Baker loan, included in the 83,200 note, then tlie remainder, if any, to the 8800 note. Necessarily this implies that the time upon the 8800 note was extended until the closing out by payment or foreclosure of the 83,200 note. The extension was for one year from September 3, 1881, or the maturity of the §3,200 note, and as much longer, if default in payment were made, as it might require for foreclosure, or the company might choose to take about such foreclosure. But until the proceeds of that 83,200 note had been applied, as agreed upon, no suit could be brought upon the §800 note.”

The same view of the law seems to have been entertained by the court, as the following instruction was refused.

“No. 12. The court instructs the jury that a mere failure of plaintiff to sue on said eight hundred dollar note, or to collect the same, or the taking of collateral security for payment of the same, whether or not such collateral security was in the shape of another note having a longer time to run and bearing interest, would not be conclusive proof of an agreement to extend, or an extension of the time of payment of said eight hundred dollar note.”

This instruction should have been given. In Brandt on Suretyship and Guaranty, See. 320, it is said: “It has been repeatedly held that the mere fact that the creditor takes from the principal a mortgage or trust deed of property as collateral security for the debt for which the surety is liable, which matures after the maturity of such debt, does not of itself, in the absence of an agreement to that feffeet, extend the time or discharge the surety.” Burke v. Cruger, 8 Texas, 66; Williams v. Townshend, 1 Bosworth (N. Y.), 411.

In Brengl v. Busby, 40 Mo. 141, a case similar in principle to the one at bar, it is said: “ After the maturity of a note ujion which principal and surety were liable, the principal executed and delivered to the creditor as collateral security a mortgage of real estate, to secure a larger sum than the note, in which the amount of the note was included. The mortgage contained a covenant on the part of the mortgagor to pay the money on a day therein named, but no provision that the right of action on the note should be suspended. Held, the remedy on the note was not suspended, and the surety was not discharged.” Baylies on Sureties and Guarantors, Sec. 9.

‘‘ Whether there was or not an agreement to extend the time, may be shown by parol.” Morse v. Huntington, 40 Vt. 488.

As the mere taking of the $3,200 note and mortgage did not of itself release appellee from the note in suit, it remains to determine whether there was any such contract entered into between appellant and Schroder as would produce that effect. Upon this point we shall express no opinion, as the case will have to be submitted to .another jury. But we think the court erred in refusing to permit Govert to answer the following question: “Was there anything in any of the conversations said about extending the time of the $800 note?” The witness was attempting to give to the jury a statement of the various conversations between the officers of appellant and Schroder, in reference to the purpose of executing the new note and mortgage, and it would be quite important to show whether there had! been any agreement to extend the time of payment of the $800 note, as we have seen the mere taking of the new note and mortgage would not of itself work such an extension.

Appellant should have been permitted to show the disposition of the proceeds of the sale of the mortgaged property, because, if the jury should reach the conclusion that there had been no valid extension of time by which appellee would be released, then it would be important to know whether any of the proceeds arising from the sale of the mortgaged property either were, or should have been applied, as a payment upon the note in suit.

For the errors indicated the judgment of the Circuit Court will be reversed and the cause remanded.

Iteversed and remanded.


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    The Commissioners of the Mason and Tazewell Special Drainage District v. William L. Giffin et al.

      Drainage — Enlargement of District — Notice—Certiorari—■Act of 1885.

    1. When a drainage district embraces land in two counties, a proceeding by certiorari to review the proceedings of the commissioners is within the jurisdiction of the Circuit Court of either county.
    2. Upon the proposed enlargement of a drainage district, it is necessary to give the same notice as is required when such district is originally formed.
    3. In the case presented, the notice of the proposed enlargement was insufficient, the first publication thereof having been eighteen flays before the term of the court at which the parties interested were to be heard, instead of twenty days, as required by the act of 1885.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Tazewell County; the Hon. N. W. Green, Judge, presiding.
    Messrs. Wallace & Prettyman, for appellant.
    Messrs. James H. Sedgwick and George Rieer, for appellees.
   Conger, P. J.

This was a proceeding by certiorari to review the proceedings of the commissioners of the Mason and Tazewell Special Drainage District, whereby it was attempted to enlarge the original boundaries of the district, by attaching thereto the lands and highways within certain prescribed limits, under and by virtue of the provisions of Sec. é2 of the drainage act of 18S5, Suss. Laws 1885, page 91.

In the Circuit Court these proceedings of the commissioners were quashed and they bring the case here for review.

It is insisted that the Circuit Court of Tazewell county had no jurisdiction of the subject matter, for the reasons that the district was organized in the County Court of Mason county, and their office was in Mason county. The original district comprised territory in both Mason and Tazewell counties, and the lands sought to be annexed are principally in Tazewell county.

We do not think this objection well taken. Appellant is a corporation originally created in both counties, and, by the proceedings which arc in this record questioned, operating upon the lands in both counties, and wo are therefore of opinion the Circuit Court of either Tazewell or Mason had jurisdiction of the subject-matter.

A number of questions are discussed with great ability, hut we deem it necessary to notice but one, and that is whether the proper notice as required by law, was given.

Section i2 of the act of ,1885 does no.t in terms require notice to he given of the proposed action of the commissioners, but provides: “ Drainage commissioners may at any time enlarge the boundaries of their district by attaching new areas of land, which are involved in the same system of drainage, and require for outlets the drains of the district made or proposed to be made, as the case may be, on the petition of as great a proportion of the land owners of the district so enlarged as is required for an original district.”

In determining the question of enlargement, the commissioners must determine whether the new area which is proposed to be included in the district, is involved in the same system of drainage, and requires for outlets the drains of the district,” and in determining this question they must investigate, deliberate and decide, in doing which they act in a quasi judicial capacity. Wright v. City of Chicago, 48 Ill. 285.

We are inclined to think that a fair construction of the law of 1885 contemplates the same notice when a district is enlarged, as is required when it is originally formed, and this seems to have been the theory upon which appellant proceeded, as there appears from the record an effort to give the notice as required by Sec. 50 of said act.

That section requires notice by posting notices in at least five public places in each township in which said proposed district, or any part thereof shall lie, also by publishing for three successive weeks a like notice in some weekly newspaper in said county or counties, which said notice shall contain a copy of the petition, and state the day of the term of court when such petition and all parties interested will be heard. The posting and first publication of said notices shall be at least twenty days before the hearing of said petition.

The first publication in Tazewell County was upon the 23d of December, and the hearing before the commissioners was upon the 10th day of January thereafter, making but eighteen days, instead of twenty, as required.

If notice was required at all, a failure to give it would be fatal to the jurisdiction of the commissioners to act.

We are inclined to think, therefore, that the proceedings of the commissioners in attempting to enlarge the district were fatally defective for want of the requisite notice, and that the judgment of the Circuit Court, in quashing such proceedings, should be affirmed.

Judgment affirmed.


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    Bessie W. Ives v. The Jacksonville National Bank et al.

      Partnership — Death of Member of Firm — Bill for Accounting — Administration — Failure of Fxeeutrix to Qualify in This State — Petition of Creditors for Appointment of Administrator — Lapse, of Time.

      Upon petition of creditors praying the appointment of an administrator of the estate of a deceased debtor leaving property in this State, his executrix having failed to qualify here, this court declines to interfere with an order for such appointment, although a year elapsed between the closing of the litigation fixing the liability and the filing of the petition.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.
    Charles L. Ives and Matthew Ashelby formed a partnership for the purpose of carrying on the business of storing, buying and selling ice in the city of Jacksonville, on or about the 15th day of November, A. D. 1875.
    Charles L. Ives died March 15, 1879, having first made and published liis last will and testament, which was duly probated in the Probate Court of New Haven county, Connecticut.
    The appellant, Bessie W. Ives, was by said will constituted the sole executrix thereof. She duly qualified as such executrix and took upon herself the execution of said will.
    At the November term, 1882, of the Circuit Court of Morgan county, Illinois, the said executrix, Bessie W. Ives, exhibited her bill of complaint against Matthew Ashelby, alleging the partnership formed between decedent and the said Matthew Ashelby; that, during the continuance thereof, the said Ives was a non-resident of the city; that the said Ashelby had had the entire control and management of the business; that no settlement of the partnership transactions between the said Ashelby and the said Ives had ever been made in the lifetime of the latter, nor had the said Ashelby ever made settlement of said partnership affairs with her as such executrix, since the death of liis partner; that since the death of the said Ives, the said Ashelby had óontinued in the possession and enjoyment of all the partnership assets; and praying for an accounting and settlement of the partnership accounts.
    Such proceedings were had in said cause, that at the November term, 1885, a decree was rendered finding the said firm of Ashelby & Co. indebted to the Jacksonville National Bank in the sum of §6,058.20, and. to M. Ashelby in the sum of §5,243.80, and ordering and directing the sale of certain partnership real estate, and ordering and directing the said Bessie W. Ives, as executrix, to pay to Ashelby and the Jacksonville National Bank the aforesaid sums found due them, less the net proceeds of sale of said real estate, after paying costs and certain preferred claims.
    On the 26th of December, 1886, the Jacksonville National Bank and Matthew Ashelby filed their petition in the County Court of Morgan county, Illinois, setting forth that the said Charles L. Ives had died testate, as above stated; that, under and by virtue of the aforesaid decree, they were creditors of the estate of said Ives in the aforesaid sums of §6,058.20 and §5,243.80, respectively, and that the testator died seized of real estate situated in the county of Morgan and State of Illinois, and that the same is still unsold; that the said Bessie W. Ives has duly qualified as executrix of said will, in the county of New Haven and State of Connecticut, but has never taken out letters of administration in the State of Illinois; that they are informed and believe that the said Bessie W. Ives is about to sell the real estate of said decedent, in said Morgan county and that there is danger of its being sold to the purchaser without notice; praying that letters of administration be granted to some discreet and proper person.
    The County Court, upon the hearing of said petition, granted the same and ordered that letters of administration with the will annexed be issued to Bazzil Davenport, public administrator, from which decision Bessie W. Ives prayed an appeal to the Circuit Court.
    Hpon the hearing of said appeal, the Circuit Court made an order affirming the order of the County Court granting such letters of administration, from which order appeal is brought to this court.
    Messrs. Browh & Kirby, for appellant.
    Messrs. Morrisoh & Whitlock, for appellee.
   Conger, P. J.

The question to be determined is, has the lapse of time between the death of Charles L. Ives and the date of the application for letters of administration been sufficiently explained to authorize the County Court to issue letters upon the petition filed. We think it has.

The litigation which fixed the liability of Ashelby & Co., was closed in November, 1885, and the petition for letters was filed in the County Court on the 26th of November, 1886.

Each case must be governed by its own peculiar facts and circumstances, and we think in this case the delay has been sufficiently explained.

The order of the Circuit Court will be affirmed.

Order affirmed.