text:
    Mary Lyon v. Horace Lyon.
    1. Evidence—Parol explanation of letter.—A witness cannot be allowed to state what he meant in a written paper, unless there is some latent ambiguity, some sign or word that has a peculiar significance, not generally understood. The paper itself must be its own interpreter.
    y. Death of one party—Opposite party cannot testify. —A defendant is prohibited by the statute from testifying on his own behalf as to the state of accounts between himself and the deceased prior to the latter’s death.
    Error to the Circuit Court of Kane county; the Hon. H. H. Cody, Judge, presiding. Opinion filed January 14, 1879.
    Messrs. Botsfobd & Barry, for plaintiff in error.
    Mr. James Coleman and Mr. E. S. Joslyn, for defendant in error;
    as to the right of a party whose statements have been offered in evidence, to explain or disprove them, cited Young v. Foute, 43 Ill. 33; 1 Phillips on Evidence, Cowen & Hill’s notes, 371.
   Sibley, J.

Mary Lyon, administratrix of the estate of David Lyon, deceased, sued Horace Lyon, in the Circuit Court of Kane county, declaring upon three promissory notes: one for the sum of $300, dated September 8th, 1864, due in ten- days after date; one dated March 17, 1865, for $100, payable one year after date, and one for $300, dated February 15th, 1871, due in ninety days after date, all of them executed by Horace Lyon to David Lyon, in his lifetime. The defendant pleaded the general issue; trial was had before the court and jury, and verdict for the defendant.

On the trial of the cause, the defendant undertook to prove that the notes had been paid. Mark White testified that in October, 1863, he collected for the defendant $229.73, and by his direction, paid it over to David Lyon. Other sums were proven to have been paid for the defendant to David Lyon after the execution of the notes read in evidence.

By way of rebuttal, the administratrix read a letter in evidence, written by the defendant, Oct. 3, 1875, to his brother, in these words: * * *

“Lee Center, Oct. 3, 1875.
li Dear Brother:— * * * Tell father it was not because I owed him that I did not answer his letter, but through neglect and being hard up for money, but will pay him as soon as we sell this lot of horses, all up, I think, and am in hopes to have some left.' * * ”

On his cross-examination, among other questions he was , asked “ What he meant by that letter?” and the court, against the objection of the plaintiff, permitted him to answer the question. He testified, “ that he did not then know as he owed him anything, but afterward found that he was mistaken.” In this we think the court erred. It is too well established that a witness cannot be allowed to state what he meant in a written paper to require any authority in its support—the paper itself must be its own interpreter—to explain its meaning by oral testimony, unless there is some latent ambiguity, or some sign or word that lías á peculiar significance not generally understood.

Besides the answer indicated to the jury, that the notes had been all settled, and he was not indebted upon them, he then was testifying on his own behalf as to the state of the accounts between him and the deceased prior to the latter’s death, in a suit by the administratrix, which is not permitted by the statute.

The court was asked on the part of the plaintiff to instruct the jury that the amount collected by White in 1863, and paid over to David Lyon, could not be allowed as a payment on the notes. The instruction was modified by the court, by adding “unless you believe, from the evidence, that such amount was in fact intended by the parties to apply upon these notes or some of them.” We look in vain through the record for any evidence upon which to base this modification. It will he observed that there was no plea of set-off in the case. How then could it be inferred, in the absence of any testimony that the parties intended the sum paid nearly a year before the execution of the first note was intended by the parties to be applied as a payment upon either of them? The modification should not have been made.

For reasons indicated, the judgment of the court below will be reversed and the cause remanded.

[Reversed and remanded.


source: Caselaw Access Project

author: Leland, J.

license: Public Domain

text:
    John Windheim v. Conrad Ohlendorf.
    1. Promissory note—Blank indorsement—Writing guaranty over indorsement.—The law is well settled that the holder of a promissory note has no authority to write a contract of guaranty over the name of an indorser, unless such act is the mere reducing to writing of a previously existing contract of guaranty.
    2. Evidence oe previous oral contract.—Where a contract of guaranty is written over a blank indorsement in the presence of the court and jury, or even before the trial, and a declaration upon such guaranty, there should be some evidence tending to show the existence of an oral contract of guaranty, before the written contract, denied under oath, should be permitted to go to the jury. In the absence of such proof the court should have admitted the contract of assignment, and excluded from the jury the supposed contract of guaranty.
    3. Indorser’s liability—Diligence—Evidence that suit wquld be unavailing.—To charge an indorser it must be shown that there has been due diligence by suit to collect the amount from the makers, or that suit would kave been unavailing, and as to tke last, hearsay evidence that tke land occupied by tke makers was mortgaged, is not competent. The mortgages and deeds, or copies of tke record, are the best evidence, and should first be produced.
    4. Practice—Admission op evidence after argument begun.—• Tke refusal of the court to allow tke defendant to testify after the argument had proceeded, was a proper exercise of discretion.
    Appeal from the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding. Opinion filed January 14, 1879.
    Messrs. Brown & Meers, for appellant;
    that the execution of an indorsement, when denied under oath, must be proven, cited Rev. Stat. Chap. 79, § 56; Chap. 110, § 34.
    An indorsement in blank is a contract under the statute, and cannot be varied by parol: Mason v. Burton, 54 Ill. 350; Beattie v. Browne, 64 Ill. 360; Clayes v. White, 65 Ill. 357.
    A party filling in a blank indorsement with a guaranty, must show that such a contract was really made: Dietrich v. Mitchell, 43 Ill. 40; White v. Weaver, 41 Ill. 409; Croskey v. Skinner, 44 Ill. 321; Maxwell v. Van Sant, 46 Ill. 58.
    Promissory notes in this State are negotiable only by force of the statute : New Hope Bridge Co. v. Perry, 11 Ill. 467.
    A promise to pay a note, made by an indorser before maturity, is no waiver of due diligence to collect of maker: 1 Parsons on Contracts, 270; Story on Promissory Notes, 273; 1 Parsons on Bills and Notes, 592; Savage v. Bievier, 12 How. Pr. 166; Leffingwell v. White, 1 Johns. Cas. 99; Kyle v. Green, 14 Ohio, 490.
    It is an abuse of the court’s discretion to refuse to admit testimony inadvertently omitted, at any time before the case is closed: Seely v. Pelton, 63 Ill. 101; Mercer v. Sayre, 7 Johns. 306; Lovett v. Adams, 3 Wend. 376.
    As to what is due diligence: Saunders v. O’Briant, 2 Scam. 369; Chalmers v. Moore, 22 Ill. 359; Roberts v. Haskell, 20 Ill. 59.
    Incumbrances cannot be shown by parol: Roberts v. Haskell, 20 Ill. 59; Clayes v. White, 83 Ill. 540; Chalmers v. Moore, 22 Ill. 359.

      A person in possession of land is grima facie the owner: Chicago v. O’Brennan, 65 Ill. 165.
    Messrs. Hill & Dibbell, for appellee;
    that admission, of testimony after argument begun, is descretionary with the court, cited Farmer v. Farmer, 72 Ill. 32.
    Eelevancy of such offered testimony should be shown and tile-ruling of the court excepted to: Warner v. Manski, 17 Ill. 235; I. & St. L. R. R. Co. v. Miller, 62 Ill. 468.
    It was not error to admit the note and indorsement of guaranty, and if error, defendant should have objected or moved to exclude it: Peoria M. & F. Ins. Co. v. Anapow, 45 Ill. 86; Wooters v. King, 54 Ill. 343; Miliken v. Marlin, 66 Ill. 13; Chi cago v. Scholten, 75 Ill. 471; Wickencamp v. Wickencamp, 77 Ill. 92; Snyder v. Lafromboise, Breese, 343; Leittich v. Mitch ell, 73 Ill. 603; G. & S. W. R. R. Co. v. Birkbeck, 70 Ill. 208; Wilhelm v. The People, 72 Ill. 468; Gardner v. Eberhart, 82 Ill. 316; Reynolds v. Palmer, 70 Ill. 288; People v. Gray, 72 Ill. 346; Johnson v. Adleman, 35 Ill. 265.
    If the objection is such that it could be removed by further proof, it must be taken on the trial: Harmon v. Thornton, 2 Scam. 351; President, etc. v. Holland, 19 Ill. 271; Sargeant v. Kellogg, 5 Gilm. 273; Swift v. Whitney, 21 Ill. 144; Stone v. G. W. Oil Co. 41 Ill. 86; Graham v. Anderson, 42 Ill. 515; Howell v. Edmonds, 47 Ill. 79; Moser v. Kreigh, 49 Ill. 84; Hanford v. Obrecht, 49 Ill. 146.
    "As to plaintiff’s right to fill the blank indorsement with a guaranty: Webster v. Cobb, 17 Ill. 459; Smith v. Finch, 2 Scam. 322; Camden v. McKoy, 3 Scam. 437; Croskey v. Skinner, 44 Ill. 321; Hance v. Miller, 21 Ill. 639; Glickauf v. Kauffman, 73 Ill. 378; Pahlman v. Taylor, 75 Ill. 629; Boynton v. Pierce, 79 Ill. 145; Hamilton v. Johnston, 82 Ill. 39; Stowell v. Ramond, 81 Ill. 120.
    A promise by an indorser after delivery of the note, bul before maturity, to pay it, is a waiver of proof of insolvency or due diligence: Curtiss v. Martin, 20 Ill. 557; Chitty on Bills, 501; Story on Bills, § 371; Tobey v. Berly, 26 Ill. 426; Morgan v. Peet, 32 Ill. 281; Walker v. Rogers, 40 Ill. 278; Morgan v. Peet, 41 Ill. 347; Givens v. Mer. Nat. Bank, 85 Ill. 442; Thornton v. Wynn, 12 Wheat. 183; Leffingwell v. White, 1 Johns. Cas. 99; Sigerson v. Matthews, 20 How. 500; Whitney v. Abbott, 5 N. H. 378; Bruce v. Lytle, 13 Barb. 163; Lary v. Young, 8 Ark. 401; Jones v. Fales, 4 Mass. 251; Hopkins v. Liswell, 12 Mass. 52; Boyd v. Cleveland, 4 Pick. 524; Taunton Bank v. Richardson, 5 Pick. 436; Coddington v. Davis, 3 Denio, 20; Norton v. Lewis, 2 Conn. 480; Parsons on Bills and Notes, 586; Story on Promissory Notes, §271; 2 Greenleaf’s Ev. § 190.
    Insolvency is proved by general reputation, facts or admissions of the maker: Humphrey v. Collier, Breese, 297; Rapleo v. Morgan, 2 Scam. 561; Wickersham v. Altom 77 Ill. 622; 1 Phillips’ Ev. *378.
   Leland, J.

This was an action commenced by Ohlendorf against Windheim, then the payee and indorser in blank of a promissory note, of which Thomas Ryan and Dennis Ryan were the makers, and appealed to the Circuit Court.

As the suit was brought before a justice of the peace, where pleadings are oral, we may consider that on the trial in the Circuit Court, the plaintiff had declared against the defendant as indorser and also as guarantor.

After the trial had commenced in the Circuit Court and in the presence of the court and jury, these words were written above the name of Windheim:

“ Value received, I assign and guarantee the within note to Conrad Ohlendorf.”

The defendant then asked for and obtained leave to file an affidavit, denying the execution of this guaranty so then written, and we think the fair construction of the stipulation that the affidavit was thereafter to be written as of the present time, was that the question of the admissibility of the contract of guaranty should be decided in the same way it would have been if a sufficient affidavit, denying the execution, were then on file. In the affidavit which was filed the word “ indorsement ” means the guaranty indorsed during the trial on the note over the name, and not the signature or blank indorsement which was there before.

The record shows, we think clearly, that there was an objection to the introduction in evidence of this contract of guaranty, and for the reason that it was thus written without authority over the name, and that the court overruled the objection and admitted it, and that exception was taken. It was conceded that Windheim wrote his name on the back of the note, and that the words of guaranty were written over the name on the trial.

There was no evidence tending to show any other contract than the one the law implies, from the fact that the payee of a note has placed his name only on the back of it. There was no nol pros, as to the oral counts on the guaranty in the plaintiff’s oral declaration, nor any oral statement of plaintiff equivalent thereto.

The law is well settled that there was no authority to write a contract of guaranty over the name, unless it was the mere reducing to writing of a previously existing contract of guaranty, and we think where it is conceded that words of guaranty are in the presence of the court and jury, or even if before the trial, written over a blank indorsement of the payee of a note, and where there is a declaration on the contract of guaranty, there should be some evidence tending to show the existence of an oral contract to that effect before the written contract, denied under oath, should be permitted to go to the jury. Boynton v. Pierce, et al. 79 Ill. 145. If there were written pleadings, and all the counts on the guaranty were nol frossed, so there was no such issue, which the jury had been sworn to try, it might do no harm, and whether pleadings are oral or written, can make no difference.

In this case we think the court should have admitted the contract of assignment, and excluded the offered supposed contract of guaranty (as such contracts are separate and distinct, and unlike each other), in the absence of evidence tending to prove any contract of guaranty, and the court could easily, in its ruling, have separated the one from the other, notwithstanding the improper attempt of plaintiff to intermingle them.

The jury having such written contract of guaranty with them in their room, admitted by the court without explanation against the objection of the defendant, might well consider it properly before them as evidence to be considered, and if so, entirely sufficient without troubling themselves about the more complicated questions growing out of the contract of assignment, and as they had sworn to try the issues they would feel compelled legally to do so, and decide the issue as to the guaranty for the plaintiff. bTor do we think it a sufficient answer to say that the court would, if asked by defendant, have instructed the jury that though both contracts were in evidence, they should treat one of them as not in. We cannot say what might have been done; all we can,say is that one of the contracts was improperly in evidence.

There was, it is true, a trial as to the liability of defendant as endorser, but we cannot tell whether the jury found against him as endorser ór guarantor.

As to the trial of the issue in relation to defendant’s liability as endorser, there was, we think, error. It was of course, necessary to prove due diligence by suit against the makers, or that such suit would have been unavailing, or some change of the conditional promise to an absolute one of defendant to pay plaintiff if the makers of the note did not, and that there was some consideration for such absolute promise.

On that branch of the case, that a suit was unavailing because of the insolvency of the makers of the note, or that there was not due diligence by suit, it appeared that the makers and a brother were residing on a farm, claiming to own it, and thereiovejyrimafacie the owners thereof. City of Chicago v. O’Brennan, 65 Ill. 165. In order to show that there was nothing to be made out of this real estate, plaintiff was permitted against objection, to prove by witnesses that they had heard that the land was mortgaged, and also that it had been sold. As to diligence by suit, see Saunders v. O’Briant, 2 Scam. 369. The objection to this evidence was put upon the ground that such facts could not be proved by hearsay and mere rumor, but that the best evidence should be produced, viz.: the mortgages and deeds' or copies from the recorder’s office.

We think the objection made should have been sustained, and that the court erred in allowing that kind of evidence. Roberts v. Haskell, 20 Ill. 59; Chalmers v. Moore, 22 Ill. 359; Clayes v. White, 83 Ill. 540.

The refusal of the court to allow the defendant to testify after the argument had proceeded so far, was a reasonable and proper exercise of discretion. Counsel for defendant ought to know all that their client could testify to before entering on the trial. After the argument has commenced witnesses often leave the court room, and it would be improper, as a general rule, to allow a witness to be examined at that stage of the proceedings, when those who might contradict him had left; though it might in some cases be a proper exercise of discretion. There are other points made as to proving insolvency by general reputation, rumor, etc., and as to an instruction on the subject of a supposed promise by defendant to pay the note to plaintiff, if makers did not; but we have already said all that is necessary.

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

Reversed and remanded.


author: Sibley, J.

text:
    Edwin Moore, use, etc. v. Jules Gravelot et al.
    1. Equitable assignment—An order or draft drawn for the whole of a particular fund operates as an equitable assignment of that fund, and after notice to the drawee it binds the fund in his hands.
    2. Acceptance by drawee.—But where the order is drawn either on a general or particular fund for a part only, it does not amount to an assignment of that part, or give a lien against the drawee, unless he consents to the appropriation by an acceptance of the draft.
    3. Assignee must give notice.—It is the duty of the assignee, if he would protect himself, to give prompt notice of the assignment to him, and a failure to do so, although it would not destroy his right, would expose it to the danger of being overreached by a subsequent assignment to another, or to the rights of an attaching creditor of the assignor.
    Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding. Opinion filed January 7, 1879.
    Hr. Egbert Dotle, for appellant;
    that where the amount due is fixed, interest is recoverable thereon until paid, cited Ditch v. Vollhardt, 82 Ill. 134; Haight v. McVeagh, 69 Ill. 624; Clark v. Dutton, 69 Ill. 521; Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Maltman v. Williamson, 69 Ill. 423.
    The garnishment creditor is entitled to all that is due from the garnishee, including interest: McCoy v. Williams, 1 Gilm. 584; First Baptist Church v. Hyde, 40 Ill. 150.
    The order in question is an ordinary bill of exchange, and does not operate as an equitable assignment until accepted: McLeod v. Snee, 1 Stra. 762; Hansonlin v. Hartsink, 7 T. Rep. 733; Kelly v. Mayor of Brooklyn, 4 Hill, 263; Kimball v. Donald, 20 Mo. 579; Gibson v. Cooke, 20 Pick. 18; Harris v. Clark, 3 Caines, 115; Lunt v. Bank of North America, 49 Barb. 229; Mandeville v. Welch, 5 Wheat. 286; Winter v. Drury, 1 Seld. 525; Chapman v. White, 2 Seld. 416; Sands v. Matthews, 27 Ala. 399; Harris v. Clark, 3 Comst. 115.
    An order or draft for a part of a debt only, does not amount to an assignment joro tanto; 5 Wheat. 286; Tieman v. Jackson, 5 Pet. 580; Walker v. Manro, 18 Mo. 564; Gibson v. Cooke, 20 Pick. 18.
    Hntil notice of assignment the debtor cannot be considered as holding the fund in trust for the assignee: Deasal v. Hall, 3 Russ. 1; Loverage v. Cooper, 3 Russ. 30; Freeman v. Rambottom, 2 Sherm. 35; Foster v. Cocksell, 9 Bligh, 332; Douglass v. Hunter, 19 Vt. 98; Ward v. Morrison, 25 Vt. 199.
    Service of garnishee process before notice to the debtor of an assignment, will hold the fund: Judah v. Judd, 5 Day, 534; Woodbridge v. Perkins, 3 Day, 364; Van Buskirk v. Hartford Fire Ins. Co. 14 Conn. 144; Bishop v. Holcomb, 10 Conn. 444; Barron v. Porter, 44 Vt. 287; 19 Vt. 98; 25 Vt. 199.
    The notice must be actual and not constructive: Iglehart v. Crane, 42 Ill. 261; Lock v. Fulford, 52 Ill. 166.
    Notice by a. second assignee will prevail over the claim of a prior assignee who has not given notice: Story’s Eq. Jur. 301.

      Mr. James Fletoiieb, for appellee Tates;
    that an order drawn on a specific fund operates as an equitable assignment of that fund, cited 1 Daniel on Negotiable Instruments, § 21; Morton v. Naylor, 1 Hill, 583; Mandeville v. Welch, 5 Wheat. 277; Anderson v. DeSeor, 6 Gratt. 364; Robins v. Bacon, 3 Greenlf. 346; Drake on Attachments, § 604.
    In equity all contracts and agreements may be assigned and the assignee will be protected: Carr v. Waugh, 28 Ill. 418; Hodson v. McConnell, 12 Ill. 170; Chapman v. Shattuck, 3 Gilm. 49; Morris v. Cheney, 51 Ill. 451.
    By giving the order the debt became transferred to the assignee: 1 Daniel on Negotiable Instruments, 17; Morton v. Naylor, 1 Hill, 523; Drake on Attachment, 611; Gibson v. Cook, 20 Pick. 15; Morris v. Cheney 51, Ill. 451; Kimrod v. Baugh, 85 Ill. 437; 2 Story’s Eq. 1044.
    The assignee will be protected, though no notice of the assignment was given: Morris v. Cheney, 51 Ill. 451; Anderson v. DeSeor, 6 Gratt. 384; 1 Daniel on Negotiable Instruments, 17; Carr v. Waugh, 28 Ill. 418; Miner v. Schenck, 3 Hill, 228; Dix v. Cobb, 4 Mass. 508.
   Sibley, J.

Jules Gravelot was indebted to Edwin Moore for pasturing cattle, in the sum of $32, which became due Oct. 1st, 1876. On the 23d of March, 1877, Thomas Tates recovered a judgment against Moore for $458.50. January the 14th, 1878, Wm. C. Coney obtained a judgment before a justice of the peace in Iroquois county against Moore for $175.50. Upon this judgment on the same day an execution was sworn out, which was on the 28th of that month returned, no property found. An affidavit was then made for the issuing of a garnishee process, against Gravelot, in favor of Moore, for the use of Coney, and served on Gravelot the 31st of January, 1878. Gravelot appeared on the 5th of February, 1878, before the justice, and upon a trial there had, a judgment was rendered against him for $32, from which he appealed to the Circuit Court.

■ January the 14th, 1878, upon a settlement between Tates and Moore, the latter gave the former an order on Gravelot, as follows:

“Jan’y 14th, 1878.
“Jules Gravelot, pay to Thos. Tates thirty-two dollars and fifty cents, for herding cattle, and this shall be your receipt.
“ Edwin Moose.”

On the trial of the cause in the court below, the following June, Tates, by way of interpleader, set up a claim by virtue of the order against Gravelot, for $82.50. Previous to that time, Coney knew nothing of Tates’ claim, though Gravelot, before the garnishee proceeding, was informed by Tates that he expected to get an order from Moore on him for the amount due Moore, but received no notice of the procurement of the order until after the service of the garnishee summons, when it was presented to him and he refused to accept it for that reason. The- Circuit Court rendered a judgment in favor of Tates for $32, and ordered Coney to pay the costs of suit. It is now insisted by the attorney for Tates, that the order drawn by Moore in his favor on Gravelot operated as an assignment to him of the debt due Moore, and therefore Gravelot could not be garnished by Moore’s creditors.

This position is countenanced by some authorities, which are mostly based upon the supposition that an order or draft, drawn on a particular fund, and so drawn as to include the whole fund in the hands of the drawee, operates as an assignment of the debt. Here it will be observed that the order was for $32.50 only. This sum had been due from Gravelot upwards of a year, and Moore was entitled to interest from the time it was agreed to be paid. Hence the order did not call for the entire fund, and in such case the doctrine is well settled that it is not an assignment of the debt until after the drawee has assented to it by an acceptance.

Moreover, it may be well doubted, whether from the order itself it sufficiently appears to be drawn on a particular fund, even if drawn for the entire amount due. Kelly v. Mayor of Brooklyn, 4 Hill, 263; Kimball v. Donald, 20 Mo. 579.

Again, it will be found that many of the cases referred to hold the doctrine that a draft, even upon a special fund, operates as an assignment only from the time of acceptance by the drawee. Thus in Mandeville v. Welch, 5 Wheat. 277, referred to, it is said that a bill of exchange is in theory an assignment to the payee of a debt due the drawer.” This is undoubtedly true where the bill has been accepted, whether it be drawn on a general or specific fund, and whether the bill be in its nature negotiable or not; for in such case the acceptor, by his assent, binds and appropriates the funds for the use of the payee, and to this effect are the authorities cited at bar. Yates v. Groves, 1 Yes. Jun. 280; Gibson v. Minet, per Byre, C. J. 1 H. Bl. 596-603; Tattock v. Harris, 3 T. R. 174.

In cases also where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and after notice to the drawee it binds the fund in his hand. But where the order is drawn, either on a general or a particular fund for a part only, it does not amount to an assignment of that part, or give a lien against the drawee unless he consents to the appropriation by an acceptance of the draft.

The case of Morris, Adm’r et al. v. Cheney, 51 Ill. 451, was a proceeding in chancery, and the court recognized the doctrine of equitable assignment, even without the assent of the debtor, but also held “ that such assignee in order to perfect his title against the debtor, must give immediate and prompt notice of the assignment to him. Still if he does not give such notice, it does not destroy his right but exposes it to be overreached by a subsequent assignment to another.” So in this case, Yates having given no notice to the debtor after he had obtained the order from Moore (though there had been some loose talk in his presence that Yates expected to procure an order, this did not amount to a notice that one had been actually obtained), he was therefore overreached by the garnishee proceeding of Coney against Gravelot.

If the order was as counsel seem to admit, a negotiable instrument, then it would follow that it did not operate as an assign-, ment of the debt due from Gravelot to Moore. In Cowperthwait v. Sheffield, 1 Sandf. 416, Vanderpool, J., said: “If these bills had been in the form of orders for the entire proceeds of the shipment, they might, after notice to the drawee, have operated as an assignment of such proceeds. But they would not have possessed all the characteristics of bills of exchange. If in such form they could he negotiated, they would on their face convey information to every holder of the fund on which they were drawn. In Cutts v. Parks, 12 Mass. 209, the drawee consented to the assignment hy acceptance, and it so appears in Morton v. Naylor, 1 Hill, 583; and in Robbins v. Bacon, 3 Grecnl. 346, referred to, the order had been presented to the drawee before the service of the trustee process.

That the order in this ease operated at law as an assignment of the debt due from Gravelot to Moore under the circumstances, we are not prepared to hold.

Parsons, in his treatise on Notes andBills, vol. 1,331, remarks: that there may be some dicta to the effect that a bill of exchange is an assignment, but no case that we are aware of with the exception of one, has held this doctrine in an unqualified way, and that case must be considered as overruled. The doctrine is well settled that before acceptance, a negotiable bill for a part of the fund is no assignment, but becomes one on the drawee signifying his assent by accepting the bill.”

It may be remarked that this was a proceeding at law, and it is only legal rights that are the subject of inquiry. May v. Baker, 15 Ill. 89.

Courts of law will doubtless protect the equitable owner of choses in action whenever they can do so without interfering with the rights of innocent parties, and the cases referred to by appellee do not push the doctrine any farther than this.

Will it be questioned that if Gravelot had paid Moore the amount due him, or had accepted a subsequent order drawn by Moore before notice of the prior order to Tates, that the payment in the one case, and his liability in the other, would have been perfectly effectual?

That Coney’s rights as attaching creditor of Moore should be protected to the same extent as a ionafide purchaser of a subsequent order after acceptance without notice of the prior one, is settled by the cases of Manning v. McClure et al., 36 Ill. 490; Butler v. Haughwaut et al. 42 Ill. 18.

The idea suggested, that it was the duty of Coney to have brought Tates, by notice or otherwise, before the justice upon the trial of the garnishee proceeding, thereby affording him an opportunity to assert his claim, is the very opposite of what ought to have been done, so far as Tates is concerned. The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Pillsbury, P. J.

text:
    Philip Reitz et al. v. The Board of Trustees, etc.
    Suit on bond—Vasianc®.—A declaration upon a bond alleging its execution by the principal and sureties, is not supported by proof of one executed by the sureties alone.
    Appeal from the Circuit Court of Will county; the Hon. .Tortatt MoRobeets, Judge, presiding. Opinion filed January 14, 1879. ■
    Messrs. Htt.t. & Dibbell, for appellants;
    contending that the signature of the principal was essential to make the bond binding upon him, cited People v. Hartley, 21 Cal. 585; Sacramento v. Dunlap, 14 Cal. 421; Hall v. Parker, 37 Mich. 590; Curtis v. Moss, 2 Rob. (La.) 267; Bean v. Parker, 17 Mass. 603; Wood v. Washburn, 2 Pick. 24; Bouv. Law Dic. Title “Deed;” Wharton’s Law Lexicon title “Deed;” 4 Kent’s Com. 450; Rev. Stat. 1874, 966.
    Without the signature of the principal the bond is incomplete and the sureties are not bound, the liability of sureties is to be strictly construed: Covington v. Smith, 78 Ill. 250; Cooper v. The People, 85 Ill. 417; Miller v. Stuart, 9 Wheat. 702; Martin v. Thomas, 24 How. 315; Trustees v. Otis, 85 Ill. 179; Church v. Noble, 24 Ill. 292; Chilton v. The People, 66 Ill. 501; Roberts v. Parlin, 81 Ill. 230; Polak v. Everett, 3 Cent. Law Jour. 307; Organ v. Allison, 9 Chicago Legal News, 250; Wood v. Steele, 6 Wall. 80; Pothier on Obligations, Chap. 6, §1; Curtis v. Moss, 2 Rob. (La.) 367; Ferry v. Burchard, 21 Conn. 602; Martin v. Thomas, 24 How. 315; Bean v. Parker, 17 Mass. 603; Wood v. Washburn, 2 Pick. 24; Russell v. Anable, 109 Mass. 72.
    Where the defect in the execution of the bond appears upon the face of the instrument, or where the obligee is chargeable with notice of such defect, the bond is void: Villere v. Brognier, 3. Mart. (La.) 349; Wells v. Dill, 1 Mart. N. S. 592; Dair v. U. S. 16 Wall. 5; Butler v. U. S. 21 Wall. 275; Fletcher v. Leight, 4 Bush, 303; Sharp v. U. S. 4 Watts, 21; Marpel v. Franz, 76 Pa. St. 88; State Bank v. Evans, 15 N. J. 155; Wood v. Chum, 18 Gratt. 801; Fletcher v. Baxter, 11 Vt. 447; Passumpsic Bank v. Goss, 31 Vt. 315; Deardorff v. Foreman, 24 Ind. 481; Webb v. Baird, 27 Ind. 368; Wild Cat Branch v. Ball, 45 Ind. 213; Hall v. Parker, 37 Mich. 590.
    The liability of the sureties, if any exists, is only for money actually in the hands of their principal at the time the bond was executed, and for such as was received by him thereafter: Vivian v. Otis, 24 Wis. 518; Bouvee v. U. S. 17 How. 437; U. S. v. Earhart, 9 Chicago Legal News, 304; Kagay et al. v. Trustees, 68 Ill. 75; Farrar v. U. S. 5 Pet. 373; U. S. v. Boyd, 15 Pet. 187; U. S. v. Lynn, 1 How. 104.
    The books kept by appellant as treasur. r, are yiraro» facie evidence of the correctness of his accounts: 1 Phil. Ev. 333;
    Waldon v. Sherburne, 15 Johns. 409; Jones v. Jones, 4 Hen. & M. 447; Morris v. Hurst, 1 Wash. C. C. R. 443; Randall v. Blackburne, 50 Taunt. 245.
    In actions on penal bonds, the condition should be set out and specific breaches assigned: People v. McHatton, 2 Gilm. 731; County of Greene v. Bledsoe, 12 Ill. 267; Hibbard v. McKindley, 28 Ill. 240.
    Interest cannot be recovered in an action upon such bond: City of Pekin v. Reynolds, 31 Ill. 530; Ill. Cent. R. R. Co. v. Cobb, 72 Ill. 148: State v. Blakemore, 7 Hiesk. 638; Chicago v. Adcock, 10 Chicago Legal News, 147.
    Interest where not agreed to be paid, is recoverable only when there has been vexatious delay in making payment: Sammis v. Clark, 13 Ill. 544; Hitt v. Allen, 13 Ill. 592; Aldrich v. Dunham, 16 Ill. 403; Davis v. Kenaga, 51 Ill. 170.
    The judgment was erroneous in directing satisfaction of the bond upon payment,of damages and costs: People v. Compher, 14 Ill. 447; Frazier v. Laughlin, 1 Gilm. 185; Odell v. Hole, 25 Ill. 204.
    Mr. G. D. A. Paeks, for appellee;
    that -the statute only requires the bond to be executed by the treasurer, and the form is immaterial, cited Magner v. Knowles, 67 Ill. 325.
    If insufficient under the statute it would be good as a voluntary bond: Pritchett v. The People, 1 Gilm. 525; Young v. Mason, 3 Gilm. 55; Fournier v. Faggott, 3 Scam. 347; Smith v. Whitaker, 11 Ill. 417; Richardson v. The People, 85 Ill. 498.
    It is immaterial in what part of the instrument the name appears, if it appears somewhere, and was intended as a complete execution: McConnell v. Brillhart, 17 Ill. 354; Wise v. Ray, 3 Iowa, 430; Classon v. Bailey, 14 Johns. 486; Lobb v. Stanley, 48 E. C. L. 581; Anderson v. Harold, 10 Ohio, 399; Davis v. Shields, 24 Wend. 323; Saunderson v. Jackson, 2 Bos. & Pul. 238; Johnson v. Dodgson, 2 M. & W. 653; Browne on Statute of Frauds, § 357; 2 Parsons on Contracts, *288; 7 Bac. Abr. 242; 4 Cruise’s Dig. 100.
    The signing need not be in juxtaposition to the seal: Davis v. Burton, 3 Scam. 41; 4 Cruise’s Dig. 9; Argenbright v. Campbell, 3 Hen. & M. 144.
    In doubtful cases a covenant should be construed most beneficial to the covenantee: Marvin v. Stone, 2 Cow. 781; McCarty v. Howell, 24 Ill. 341; City of Alton v. Transportation Co. 12 Ill. 38; Massie v. Belford, 68 Ill. 290; Broom’s Maxims, 540.
    The defect, if any, in execution of the bond must be known to the obligees, or the sureties will be bound: Smith v. Peoria Co. 59 Ill. 412; Ladd v. Board of Trustees, 80 Ill. 233; Ins. Co. v. Brooks, 3 Am. Law Reg. 400; State v. Potter, 3 Am. Law Reg. 176.
    The sul-eties are liable for moneys in the hands of their principal, though received during preceding terms of office: Pinkstaff v. People, 59 Ill. 148; Kagay v. School Trustees, 68 Ill. 75; Morley v. Town of Metamora, 78 Ill. 394; U. S. v. Earhart, 9 Chicago Legal News, 304; Wilson v. School Directors, 2 Am. Law Reg. 123.
    They may show, if they can, that the moneys were lost or squandered before their liability commenced: Vivian v. Otis, 24 Wis. 518.
    In case of failure to produce, on demand, the notes and moneys shown to have been received by him, the amount of the same would be the measure of damages: Sedgwick on Measure of Damages, 488.
    The board of trustees had no power to allow commissions to the treasurer: Brandt on Suretyship, §476; Decatur v. Vermillion, 77 Ill. 317; Dillon on Municipal Corporations, § 173.
    It is the duty of an officer to pay over to his successor the balance remaining in his hands after demand, and failing todo so, interest on the same may be recovered: Magner v. Knowles, 67 Ill. 325; People v. Gasherie, 9 J. R. 71; Slingerland v. Swart, 13 J. R. 256; Greenly v. Hopkins, 10 Wend. 97; Sedgwick on Measure of Damages, 378.
   Pillsbury, P. J.

The appellees brought an action of debt against the appellants upon the bond of Reitz as school treasurer, and the other appellants as his sureties..

The declaration counts upon a bond executed by the principal, Reitz, as well as by his sureties; to which Reitz filed the plea of non est factum, verified by his affidavit.

The bond introduced in evidence does not, on its face, purport to be executed by Reitz, and he objected to its introduction in evidence upon that ground; but the court overruled the objection and admitted the bond.

We are of the opinion that in this respect the court erred. A declaration upon a bond alleging its execution by the principal and sureties, is not supported by proof of one executed by the sureties alone. Bean v. Parker, 17 Mass. 603.

Counsel have argued the question whether sureties are liable in any event upon such bond, but as the case must be tried again we refrain from expressing any opinion upon that point at this time.

For the error indicated the judgment of the court below must be reversed and the cause remanded, with leave to the appellees to amend their declaration if they shall be so advised, when the liability of the sureties can be properly determined.

Reversed and remanded.


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    Simon Reid et al. v. John Gunnison.
    Relief in equity.—The lien of appellants’ judgment was subject to a certain mortgage upon the land, but prior to a contract of sale with one M. for a portion of the land, and could have been enforced without regard to such contract; but appellants in their prayer for relief, electing to abide by the contract with M., it was not error to decree an application of the money paid by M. to the payment of the mortgage, and that M. should have the land free from appellants’ lien.
    Appeal from the City Court of Aurora; the Hon. Fbank M. Annis, Judge, presiding. Opinion filed Janaary 14, 1879.
    Mr. Eugene Canfield, Mr. H. F. Hichols and Mr. M.O. Southwobth, for appellants;
    that the relief granted by the court was entirely outside of the prayer of the bill, and erroneous, cited Heath v. Hurless, 73 Ill. 323; Ward v. Enders, 29 Ill. 519; Hall v. Towne, 45 Ill. 493; Dodge v. Wright, 48 Ill. 382.
    Ho estoppel can be raised against appellants from an allegation in their cross-bill of a fact occurring months previous: Straus v. Minzesheimer, 78 Ill. 492; International Bank v. Bowen, 80 Ill. 541; Kinnear v. Mackey, 85 Ill. 96; Ball v. Horton, 85 Ill. 159; Hefner v. Vandolah, 57 Ill. 520; Chandler v. White, 84 Ill. 435; St. Joseph M’f’g Co. v. Daggett, 84 Ill. 556.
    . Mr. Charles Wheaton, for appellee;
    that the decree was equitable, and should he sustained, cited 2 Story’s Eq. Jur. § 1316; Weaver v. Poyer, 79 Ill. 417.
   Pillsbury, P. J.

The lien of the judgments of appellants was subject to that of the Gunnison mortgage, hut was prior to any claim of Moore upon the land by virtue of his contract of purchase with Smith and Gunnison. The appellants, therefore could, had they so desired, have enforced such lien subject to the mortgage*, without regard to the contract of Moore; but instead of so doing they filed a cross-bill setting up the Moore .contract, and alleging that the purchase price, $900, should be applied in discharge of the prior lien, and that the premises were so situated that it would be for the interest of the parties when such interest should be ascertained by the court, and their respective equities therein and thereon adjusted, to have said premises sold, and the money arising from such sale should be paid to the parties as to equity should appertain, and prays for such relief, and that they might have the benefit of the Moore contract. •

Moore’s contract included only a portion of the premises upon which the judgments and mortgage were a lien, and the price agreed to be paid by Moore, for such portion was all the land was worth at time of his purchase.

The court below decreed that the $900 should be applied in payment of the Gunnison mortgage, but that Moore should have the land discharged of any lien of the judgment or the mortgage. We are of the opinion that this action of the court was proper. The appellants elected to'ratify the contract, and have Moore’s money applied to their benefit in the extinguishment of the prior lien upon the whole premises, and it would be exceedingly inequitable for appellants to thus take and apply his money and then subject the land to the payment of their judgment.

The court in the decree substantially granted the relief asked for by appellants, and as the decree appears to us to be very equitable and sustained by the pleadings and proofs, it will be affirmed.

Decree affirmed.


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    Alonzo Leach v. James G. Elwood et al.
    1. Trespass—Does Rurmrrre at larue—Authority op city to prohibit.—The legislature, by virtue of its police power, may confer upon a city authority to pass an ordinance declaring what shall be considered a nuisance, and for its abatement; and may also, when necessary for the public safety, authorize dangerous animals to be summarily destroyed by city authorities without notice to the owners.. The killing of a dog running at large in violation of an ordinance prohibiting the same, is not such an unauthorized proceeding as will create a liability for its loss.
    2. Practice—Judgment where issue undisposed oe.—It was error to render final judgment on demurrer while the issue on a plea of one defendant remained undisposed of.
    Error to the Circuit Court of Will county;' the Hon. Josiah McRoberts, Judge, presiding. Opinion filed January 17, 1879. .
    Messrs. Munn & Mot, for plaintiff in error;
    that the ordinance being operative or inoperative, at the will of the mayor, was in effect an unauthorized delegation of power to him, and therefore void, cited East St. Louis v. Wehrung, 50 Ill. 28.
    The law recognizes the right of property in dogs: Pickering v. Orange, 1 Scam. 338; Spray v. Ammerman, 66 Ill. 309; Kightlinger v. Egan, 75 Ill. 141.
    Mr. C. B. Garnsey, for defendants in error;
    that the judgment was proper, cited Bouv. Law Diet, title “Judgments;” Ward v. Stout, 32 Ill. 399; Miles v. Danforth, 37 Ill. 156; Mt. Carbon R. R. v. Andrews, 53 Ill. 177.
    Error must be affirmatively shown, and there is nothing in the record to show that, as to the city, there was not a hearing on the merits: Gardner v. Russell, 78 Ill. 292; Hough v. Baldwin, 16 Ill. 293; Reeves v. Mitchell, 15 Ill. 297; Casey v. Harvey, 14 Ill. 45.
    The killing was justifiable, being an exercise of the police power: Brent v. Kimball, 60 Ill. 211; Tower v. Tower, 18 Pick. 342; Blair et al. v. Forehand, 100 Mass. 136; Carter v. Dow, 16 Wis. 298; Cummings v. Perham, 1 Met. 555; Morey v. Brown, 42 N. H. 373.
    As to the power to regulate nuisances: Lake View v. Rosehill Cemetery Co. 71 Ill. 191; Daniels v. Hilgard, 77 Ill. 640; Brush v. Lemma, 77 Ill. 496; C. B. & Q. R. R. Co. v. Haggarty, 67 Ill. 113.
   Sibley, J.

The plaintiff in error brought an action of trespass in the Circuit Court of Will county against James Elwood, James Fanning and the city of Joliet, for shooting his dog, valued at five thousand dollars. The city pleaded not guilty, upon which issue was joined, and the defendants, Elwood and Fanning, filed two pleas: First, not guilty, and 2nd a special plea, as follows:

“And for a further plea in this behalf, said defendants, impleaded with said city of Joliet, by leave, etc., say actio non, because they say that at and before the time, etc., in said plaintiff’s narr. mentioned, said defendant, the city of Joliet, was a municipal corporation, duly organized under the laws of this State, and the Common Council of said city had power and authority, by virtue of such laws, by ordinance, to prevent and regulate the running at large of dogs, and to authorize the destruction of the same when at large contrary to ordinance; and these defendants further aver that said city had, before the time when, etc., in said plaintiff’s narr. mentioned, provided by ordinance that the mayor of said city might, from time to time, on an alarm of mad dogs, prohibit, by notice in some public newspaper or printed hand-bills, all dogs running at large within the city limits of said city of Joliet, and might appoint deputy marshals with the authority to kill all dogs found at large within their said city or its limits ; that such prohibition should continue as long as, in the discretion of said mayor, should be required, and until public notice should be given by said mayor of the discontinuance thereof. And these defendants aver that said James Gr. Elwood, defendant herein, was at and before the time when, etc., in said narr. mentioned, mayor of said city of Joliet aforesaid; and further aver that before the time when, etc., there was an alarm of mad dogs in said city of Joliet aforesaid, and that before the time when, etc., the said defendant as such mayor, on such alarm of mad dogs being had, did prohibit all dogs from running at large within the limits of said city of Joliet aforesaid, by notice by printed hand-bills, that all dogs within the limits of said city should be muzzled, and that all dogs found upon the public streets of said city of Joliet, unmuzzled and running at large within the limits of said city, would be shot; and afterwards and before the time when, etc., said mayor appointed this defendant, Fanning, a deputy marshal of said city, and authorized him as such deputy, under the provisions of said ordinances, to kill all dogs and sluts found running at large and unmuzzled, and upon the public streets of said city within the limits of said city, of all which said plaintiff had notice. And these defendants aver that at the time when, etc., said ordinance was in full force, and that said prohibition of said mayor was in full force, and had not been discontinued by notice from said mayor or otherwise; and defendants aver, that at the time when, etc., said dog in said plaintiff’s narr. mentioned, was running at large and unmuzzled on the public streets of said city of Joliet, and within the limits of said city, to wit: on Desplaines street, and that this defendant, Fanning, acting as such deputy marshal, and not otherwise; and while said ordinance and prohibition of said mayor was in full force, and while such dog was running at large and unmuzzled as aforesaid, did shoot and Mil said .dog, which is the same trespass in each and every count in said plaintiff’s narr. mentioned and described, and none other; this they, these defendants, are ready to verify, wherefore, etc.”

The plaintiff demurred to the second plea of defendants, Elwood and Fanning, although the demurrer commences by calling it the plea of the city of Joliet and James D. Elwood, and concludes by praying judgment as to the defendants, Fanning and Elwood. The court overruled the demurrer, and the plaintiff elected to stand by it; whereupon judgment was rendered against him for costs and in favor of all of the defendants. To which ruling of the court the plaintiff excepted, and has brought the record here assigning for error the action of the court in the disposition of the case.

We are unable to discover any substantial objection to the plea.

That the legislature by virtue of its police power for the security of the public welfare, had the right to confer authority upon the city of Joliet to pass the ordinance described in the plea is not questioned, and that the city was empowered by its charter, or even under the general incorporation law, by which it is asserted its powers were being exercised (of the fact however, we are wholly nnapprised) to pass an ordinance like the one referred to, declaring what should be deemed a nuisance, and providing for its abatement is equally evident.

It was so held in Blain v. Hutchinson, 100 Mass. 136, on a question similar to the one in dispute, that “ the legislature may not only provide that certain kinds of property may be seized and confiscated upon legal process after notice and hearing, but may also, when necessary to insure the public safety? authorize them to be summarily destroyed by the municipal authorities without previous notice to the owner.”

It is doubtless true that this power cannot be extended to include objects which are not in their nature offensive or dangerous to the community, but dogs running at large in the streets of a populous city, as we have seen under the circumstances alleged in the plea, may well be considered an evil that can be dealt with in a summary manner. The right of society to protect itself against such dangerous animals is in its very nature an inherent one, and he who fails to observe any reasonable regulation of a municipality restraining them from so jeopardizing the safety of the inhabitants of the city must take the consequences of his own neglect.

While it may be true that owners have a certain right of property in their dogs, not recognized at common law, nevertheless they are, even when domesticated, of that wild nature and destructive instincts which renders the animal subject to any reasonable police regulations that have been established by the proper authorities to protect society against their depredations. Hence the owner can be compelled to keep his dog in such a manner as not to endanger the rights of others. If, then, the animal was running at large in violation of the ordinance, as stated in the plea, after having been declared a nuisance, by being allowed to do so it would seem to follow that the city authorities had a right to abate the nuisance, and that the most effectual way of accomplishing this purpose was taken, cannot upon principle or reason be considered an unauthorized proceeding.

A fine perhaps would, if imposed, have been more desirable to the owner, hut less security to the citizens, and we are "not prepared to say that the city authorities exceeded their powers. Hor is any serious objection discovered to the means adopted for carrying into effect 'the ordinance. Therefore, the court committed no error in overruling the demurrer to the plea.

Still the judgment of the Circuit Court must be reversed, for the reason it does not appear that the issue on the plea of not guilty by the city was ever disposed of. The point is made that judgment having been pronounced on the demurrer to a plea by two of the defendants, the cause was at an end as to all of them, since a judgment could not be rendered in favor of one on the law and another on the facts.

This could, however, have been easily obviated by suspending any judgment upon the demurrer until the issue of fact was determined. Judgment reversed and cause remanded.

Reversed and remanded.


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    Albert F. Logan v. James N. Burr.
    Practice—Judgment against one defendant alone.—Where the principal and two sureties were sued jointly upon a promissory note, service being had upon both the sureties, it is error to render judgment against one of the sureties alone, there being no default, assessment of damages, or other action of the court as to his co-surety.
    Appeal from the Circuit Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding. Opinion filed January 17,1879.
    Mr. Raus Cooper and Messrs. Kirkpatrick & Hanna, for appellant;
    that judgment must he against all who are served or none, cited Russell v. Hogan, 1 Scam. 552; Hoxey v. County of Macoupin, 2 Scam. 36; Tolman v. Spaulding, 3 Scam. 13; Wight v. Meredith, 4 Scam. 360; Howell v. Barrett, 3 Gilm. 433; Davidson v. Bond, 12 Ill. 84; Dow v. Battle, 12 Ill. 373; Fuller v. Bobb, 26 Ill. 248; People v. Organ, 27 Ill. 27; Gribben v. Thompson, 28 Ill. 61; Briggs v. Adams, 31 Ill. 486; Stewart v. Peters, 33 Ill. 384; Flake v. Carson, 33 Ill. 518; Faulk v. Kellums, 54 Ill. 189; Gould v. Sternburgh, 69 Ill. 531.
    As to the effect of an alteration of the note upon the liability of the surety, and its use as evidence: Hodge v. Gilman, 21 Ill. 441; Walters v. Short, 5 Gilm. 252; Gillett v. Sweat, 1 Gilm. 475; Montag v. Linn, 23 Ill. 551; Lowman v. Aubery, 72 Ill. 619; Harper v. The State, 7 Blackf. 61; 1 Smith’s Lead. Cas. 957; Master v. Miller, 4 T. R. 320; Wilde v. Armsby, 6 Cush. 314; 2 Parsons on Notes, 549; Garrard v. Haddan, 67 Pa. St. 82; Elbert v. McClelland, 8 Bush. 577; Goodman v. Eastman, 4 N. H. 455; Gardiner v. Harback, 21 Ill. 129; Bur-well v. Orr, 84 Ill. 465; Schnewind v. Hacket, 54 Ind. 248; Harsh v. Klepper, 28 Ohio St. 200; Draper v. Wood, 112 Mass. 315; Fay v. Smith, 1 Allen, 477; McGrath v. Clark, 56 N. Y. 34; Wood v. Steele, 6 Wall. 80.
    Messrs. Stewart, Phelps & Grier, for appellee.
   Leland, J.

This was an action of assumpsit on a promissory note signed by Daniel Mitchell, Thomas Mitchell and Albert F. Logan,-the first named being the principal and the' last named two securities. The summons was for all of them and the declaration was against all, reciting that all had been summoned. Thomas Mitchell, however, was not served with process; the other two were duly served. There was a trial of issues by jury as to Logan, and there was a judgment against him alone. There was no default as to Daniel Mitchell, no assessment' of damages, no action whatever of the court as to him. That it was error ttf render judgment against Logan alone is well settled. Gould v. Sternburg, adm’x, 69 Ill. 531; Faulk v. Kellums, 54 Ill. 189, and other previous cases.

Logan’s claimed defense*to the note was that when it was written and signed by him it was for fifteen per cent, interest, and that it was afterwards altered without his consent by erasing the letters “ fif,” so as to leave it teen (ten) per cent. As the evidence as to whether this was an alteration with .or without the consent of Logan may be different in another trial, we do not deem it necessary to say anything in relation to that branch of the case.

For the error aforesaid the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

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    John Bulmer v. William Worthing et al.
    Practice—Bill oe exceptions.—Where the bill of exceptions does not purport to contain all the evidence, it must be presumed that there was evidence sufficient to sustain the finding.
    Appeal from the County Court of Grundy county; the Hon. Samuel B. Thomas, Judge, presiding. Opinion filed January 17, 1879.
    Messrs. Haley & O’Donnell, for appellant;
    that on appeals from a justice the trial is de novo, cited Waterman v. Bristol, 1 Gilm. 593; Tindall v. Meeker, 1 Scam. 137; Frye v. Tucker, 24 Ill. 181; Rev. Stat. 1877, Chap. 79, §74; Webb v. Lasater, 4 Scam. 544; Thompson v. Sutton, 51 Ill. 213.
    Objections to the admission of testimony must be made in the court below: Gardner v. Eberhart, 82 Ill. 316; People v. Gray, 72 Ill. 343; Johnson v. Adleman, 34 Ill. 265; Hanford v. Obrecht, 49 Ill. 146; Powell v. Feeley, 49 Ill. 143.
    When specific objections are made, none of which- are tenable, others will be regarded as waived: Wickenkamp v. Wickenkamp, 77 Ill. 92; Litieich v. Mitchell, 73 Ill. 603; Snyder v. Lafromboise, Breese, 343; Karnes v. The People, 73 Ill. 279.

      Messrs. Jordan & Stotjg-h, for appellees;
    upon the question of set-off, and what may be allowed, cited Newhall v. Turney, 14 Ill. 338; Griggs v. James et. al. Breese, 143; Hinckley v. West, 4 Gilm. 136; Burgwin v. Babcock, 11 Ill. 28; Hilliard v. Walker, 11 Ill. 644; Ryan v. Barger, 16 Ill. 28.
    As to consolidation of suits before justices: Lathrop v. Hayes, 57 Ill. 279; Brookbank v. Smith, 2 Scam. 78; Rev. Stat. 1874, 645, §49.
   Per Curiam.

This case was commenced before a justice and appealed to the County Court, where upon trial a judgment was rendered in favor of plaintiffs, and defendant appealed to this court.

The bill of exceptions in this case does not purport to contain all the evidence introduced in the court below, hence we must presume that the evidence was sufficient to sustain the finding.

Judgment affirmed.


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    John M. Rockenfeller et al. v. Henry Tobias et al.
    Bill op exceptions—What most be shown in.—The bill of exceptions not containing the affidavits read on motion for new trial, nor the instructions given or refused, nor purporting to contain all the evidence, the presumption is that the facts were sufficient to sustain the verdict, and that proper instructions were given. Copying instructions into the transcript by the clerk does not make them a part of the record.
    Appeal from the Circuit Court of Woodford county; the Hon. John Burns, Judge, presiding. Opinion filed January 17, 1879.
    Mr. H. R. Ryan, for appellant;
    upon the question of liability as guarantor, cited Newland v. Harrington, 24 Ill. 206; Wain v. Walters, 5 East 10; Saunders v. Wakefield, 4 Barn. & Ald. 595; Jenkins v. Reynolds, 3 Brod. & B. 14; First Bap. Church v. Hyde, 40 Ill. 150; Packard v. Richardson, 17 Mass. 126; Chilcote v. Kile, 47 Ill. 88.
    Where the verdict is contrary to the evidence, it will be set aside: Miller v. Hammers, 51 Ill. 175; Adams Ex. Co. v. Jones, 53 Ill. 463; Smith v. Ætna Life Ins. Co. 49 N. Y. 211; Chase v. Debolt, 2 Gilm. 371; Boyle v. Levings, 24 Ill. 223; Clement v. Bushway, 25 Ill. 200; Van Valkenburgh v. Haskins, 7 Wis. 424.
    Messrs. Bargs, Shaw & Edwards, for appellees.
   Pillsbury, P. J.

The bill of exceptions in this case does not contain the affidavits read on motion for new trial, the instructions given or refused on the trial below, nor purport to contain all the evidence introduced.

The presumption therefore, is that the facts were sufficient to sustain the verdict, and that the court correctly instructed the jury. The fact that the clerk has copied into the’transcript what appears to be instructions, does not make them a part of the record. To he considered by this court they must be incorporated into the hill of exceptions. Drew v. Beall, 62 Ill. 164.

The judgment of the court below will he affirmed.

J udgmeut affirmed.


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    Louis H. Bullock v. Linus Carpenter.
    Practice—Amount endorsed on summons.™It is the settled rule in this State that a plaintiff is limited in his recovery, in actions originating before justices, to the amount endorsed upon the summons.
    Appeal from the County Court of Woodford county; the Hon. J. M. McCulloch, Judge, presiding. Opinion filed January 17, 1879.

      Mr. Elijah Plank, for appellant;
    that a receipt in full is evidence of a settlement, and shifts the harden upon him who would disprove it, cited Winchester v. Grosvenor, 44 Ill. 425.
    Mr. S. S. Page, for appellee.
   Pillsbury, P. J.

This suit was commenced by appellee against appellant before a justice of the peace, by summons in the usual form.

The amount of plaintiff’s demand, endorsed upon the summons by the justice, was $55.60, and on the trial before the justice the plaintiff was allowed to increase such amount to $155.60. An appeal being taken to the County Court of Wood-ford county, a judgment was there rendered in favor of the plaintiff for $164.80, and the defendant brings the record to this Court by appeal, and among others, assigns for error that the judgment exceeds the amount endorsed on the hack of the summons.

That the plaintiff is limited in his recovery to the amount endorsed upon the summons in actions originating before justices, is the settled rule in this State. T. P. & W. R’y Co. v. Pence, 71 Ill. 174.

On the trial in the County Court the plaintiff sought to recover for services in nursing the defendant while he was sick at plaintiff’s house. At time of such sickness the defendant was hoarding with plaintiff, and on the trial gave in evidence a receipt for his board paid to plaintiff, which receipt also expressed upon its face that it was in full of all demands. There was evidence tending to show that plaintiff did not intend to charge the defendant for the extra services in caring for defendant in his sickness. As this case must be tried again, this question whether the plaintiff did or did not intend to make any charge for such services, can be properly submitted to the jury, and if it should appear that such extra care was a gratuity on part of plaintiff he should not now be allowed to recover for it in this action.

We express no opinion upon the weight of the evidence in the case, as the judgment must be reversed and the cause remanded for the error noted. Reversed and remanded.


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    The Commissioners of Highways, etc. v. The Village of Rock Falls.
    Practice.—There being no final judgment of the court below, the writ of error is dismissed.
    Error to the Circuit Court of "Whiteside county; the Hon. William Brown, Judge, presiding. Opinion filed January 17, 1879.
    Messrs. Bennett & Green, for plaintiffs in error;
    upon the rule for construction of statutes, cited Way v. Way, 64 Ill. 406; Beardstown v. Virginia, 66 Ill. 40; Perteet v. The People, 65 Ill. 230; Decker v. Hughes, 68 Ill. 33; Zarresseller v. The People, 17 Ill. 101; Spring v. Collector of Olney, 78 Ill. 101.
    Messrs. Johnson & Howland, for defendant in error;
    that the tax for road purposes levied on property in a village should he paid to the village treasurer, cited Baird v. The People, 83 Ill. 387; City of Galena v. Com’rs of Highways, 2 Bradwell, 255.
   Leland, J.

This was an action of assumpsit by plaintiffs in error against defendant in error, to recover taxes received by the latter, claimed to belong to the former.

The court below sustained a demurrer to the second count of plaintiff’s declaration, and either omitted to render any final judgment, or the clerk has omitted it from the record if rendered. All the other counts were withdrawn. .

There being no final judgment of the court below, we cannot do otherwise than to dismiss the writ of error.

Writ of error dismissed.


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    The Village of Crotty v. The People ex rel.
    1. Mandamus to compel issuance Ob' license.—The passage by a village board of a resolution fixing the amount to be paid for license to keep a dram-shop, cannot be regarded as an ordinance properly passed, wherein the village authorities undertake to exercise the powers regarding licenses vested in villages by the statute, and a party tendering the amount so fixed to be paid for a license, and a bond, is not, by virtue of such resolution, entitled to a peremptory writ of mandamus, requiring- the village to issue a license to him.
    2. Ordinances—Rights under.—Ordinances should be general and uniform, operating alike upon all classes of persons in the municipality, yet it has never been held that, an ordinance granting- license should be so general in its provisions that any person complying with its terms is entitled to receive such license without any regard to his moral fitness to conduct the business
    ' Appeal from the Circuit Court of La-Salle county; the Hon. Josiah MoBoberts, Judge, presiding. Opinion filed January 17, 1879.
    Mr. John II. Widmer and Mr. E. F. Bull, for appellant;
    that mandamus will not be awarded except where the right of the relator is clear, and the party sought to be coerced is hound to act, cited People v. Hatch, 33 Ill. 9; County of St. Clair, v. The People, 85 Ill. 396; The People v. Lieb, 85 Ill. 485; The People v. C. & A. R. R. Co. 55 Ill. 95.
    Where the corporate body has a discretion and exercises it, the court cannot control that discretion by mandamus: The People v. LaSalle County; County of St. Clair v. The People, 85 Ill. 396; The People v. Forquier, Breese, 104; High on Extraordinary Remedies, § 325; The People v. Curyea, 16 Ill. 547.
    The common council may grant licenses upon such terms as they may choose, and may prescribe the character of persons who shall have licenses: Rev. Stat. 1874, Chap. 11, § 62; Schwuchow v. Chicago, 68 Ill. 444; City of East St. Louis v. Wehrung, 46 Ill. 392; ex parte Paine, 1 Hill 665.

      This being for the relator’s personal benefit, a demand and refusal are necessary: High on Extraordinary Remedies, §13; Rex v. Brecknock, etc. Co. 3 Adol. & Ell. 217; Rex v. Wills, etc. Canal Nav. 3 Adol & Ell. 477; Regina v. Thames & Isis Nav. 8 Adol. & Ell. 901; Macoupin Co. v. The People, 58 Ill. 191.
    Mere delay for investigation is not a refusal: Regina v. Wilts, etc. Canal Co. 8 Dowl. Pr. Cas. 623.
    Mr. M. T. Moloney, for appellee;
    that private rights may be enforced by mandamus, cited County of Pike v. The State, 11 Ill. 202; City of East St. Louis v. Wider, 46 Ill. 351; Kadgihn v. City of Bloomington, 58 Ill. 229.
    If licenses are granted they should be granted to all who conform to their terms: City of Chicago v. Rumpff, 45 Ill. 90.
    If the board by resolution agree to issue license, a mandamus will compel the issuing of the same: 1 Hill, 655; 13 Barb. 206.
    The petition is properly brought against the corporation: 18 B. Mon. 9.
   Pillsbury, P. J.

Petition for mandamus filed in the LaSalle Circuit Court by the relator, Besse, to compel the village of Grotty, in said county, to grant him a license to sell by retail intoxicating liquors, and to keep a pool table in said village.

The petition alleges that the village is incorporated under the general law, and has power by that law to grant such licenses, and that “ at a special meeting of the board May 4th, on motion of Graves, that license to keep dram-shops for the jn’esent municipal year be fixed at $130.00; approved. On motion of Prickett, that said license to keep dram-shops be for every dram-shop $80.00 in advance and $50.00 on or before Hov. 1st, 1878; approved,” and at same time passed an order as follows:

“On motion of Prickett, that the license to keep billiard tables, bagatelle, pool tables, shooting galleries or other games of chance, be for every such prixdlege $5.00; approved.”

That no other order, ordinance or resolution is known to exist in said village upon that subject. That on May 9th licenses were granted under said action of the trustees to several persons, at which time the relater also applied for license to keep pool table and to sell liquor, and in accordance with the laws filed his bond and tendered to the treasurer the amount of money required by said order, etc.

That the authorities refused to approve his bond, accept the money and to act upon his application.

The respondent filed its answer to said petition, admitting the passing of the resolution, the application of the relator for a license to keep a pool table and to sell intoxicating liquors, the tender of the money and the presenting of the bond, and then alleges as a reason for not granting the same, “ that the matter of granting a-license to said petitioner to keep a dram-shop, and also to keep a pool table, was laid upon the table for the future consideration and action of said board of trustees, to' be determined upon at a future meeting of said board; that after-wards, to-wit: on May 24th, 1878, and after the filing of the petition herein, upon careful investigation and consideration of the application for said licenses, made by said president and board of trustees, it was determined by a vote of 4 to 1, in said meeting, that a license to said petitioner should not be granted, and said clerk was then and there instructed to return said bond to said petitioner. The defeudant denies that said president and board of trustees refused either to license said petitioner to keep a dram-shop or not to license him, as is alleged in said petition ; on the contrary the defendant avers that the matter of granting to said petitioner a license to keep a dram-shop, was deferred solely for the purpose of allowing said president and board of trustees to inquire into the fitness of said petitioner to receive such license; that said petitioner had received a license from the defendant to keep a dram-shop for the previous year, and had kept an ill-governed and disorderly house, to the scandal and disgrace of the inhabitants residing within said corporate limits; that said petitioner, under a license issued to him by the defendant for the year previous, disregarding his duty as a good citizen, and in violation of the ordinances of the defendant, and of the trust reposed in him to keep an orderly and well-governed household and gave intoxicating liquors to minors on divers and sundry times, kept said dram-shop open on divers Sabbath days, and sold intoxicating liquors on the same, and sold and gave intoxicating liquors to inebriates and drunken persons, and permitted fighting, quarrelling and other disorderly conduct to be carried on in and about said dram-shop. And the defendant avers that the sole and only reason for refusing to issue a license to said petitioner to keep a dram-shop and pool table, is that the petitioner, in the judgment of said president and board of trustees, is an unfit person to be entrusted with a license to sell spirituous, vinous and malt liquors, or to keep a pool table or a dram-shop within said corporate limits, and that for no other cause did said president and board refuse to grant to the petitioner a license for said purposes; and that in exercising the discretion which the law has vested in the defendant for the good of the inhabitants of said corporation, they did refuse to grant a license to said petitioner for the purposes above stated, and thereupon said clerk did return said bond to said petitioner. Wherefore the defendant prays the judgment of the court here, etc.”

To this answer the relator demurred,'and the court sustained the same, and awarded a peremptory mandamus as prayed, and the defendant brings the case to this court by appeal.

It will be noticed at the outset that the village has never by ordinance properly passed, approved by the president and published, undertaken to exercise the powers regarding licenses vested in it by the statute, as the resolution cited is the only action ever had upon the subject, and that does not even purport to be an ordinance, but simply a declaration of the amount that shall be paid for such licenses if granted.

The power to license, regulate and prohibit the selling or giving away of any intoxicating liquors is expressly conferred upon cities by the forty-sixth subdivision of section one of article five, of the act of 1872, and to license pool tables by the forty-fourth subdivision of said section; and by section nine of article eleven of same act the president and board of trustees of villages are vested with- the same powers of cities in that regard, and can pass ordinances in like manner, and both cities and villages are authorized by the same act to pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted to them. It is not to be denied that these ordinances should be general and uniform, operating alike upon all classes of persons in the municipality brought within its provisions, yet it has never been held that an ordinance granting license should be so general in its provisions that any person is entitled to receive such license without any regard to his moral fitness to conduct the business of retailing liquor.

An ordinance providing for the granting of such privilege, and providing that such license should only be granted to law-abiding and moral persons, is not the less general and uniform because it does not include the vicious and immoral.

We have no doubt of the power of a municipal corporation to prescribe that a license to sell liquor shall not be granted to that class of persons who in conducting the business continually do so in violation of the law, and in utter disregard of good morals and the well being of society.

It is essential to good order in the municipality that they should possess this power and freely exercise it.

In the case of the City of East St. Louis v. Wehrung, 50 Ill. 31, it is said that “ In the proper exercise of this power the city council should adopt general ordinances prescribing a general rule by which licenses might be obtained. They might no doubt prescribe the character of the persons who might or might not obtain licenses, or they might in their regular or called meetings, in such manner as they might ordain, grant such licenses.”

This power to grant licenses and to prescribe general rules by which they can be obtained, has never been exercised by the village of Crotty by general ordinance, hence such power is reserved to it, to be called into exercise when the president and board of trustees shall determine so to do; and this power must be exercised by them alone, and cannot be delegated to any of its inferior officers. City of East St. Louis v. Wehrung, supra; Kinmundy v. Mahan, 72 Ill. 462.

It is not necessary in this case to determine the question whether the reason assigned in the answer would be a sufficient excuse for their refusal to grant the relator a license, had the president and board of trustees adopted a general ordinance, comprehensive enough in its terms to include persons who conduct the traffic in intoxicating liquors in the manner the relator is admitted to have doné, as the question does not arise upon this record.

It is evident that they have not so done, and we are not aware of any power in the judiciary to compel them to pass such an ordinance. The mere fact that they have granted license to others without ordinance cannot avail the relator, for until they have ordained that licenses shall be granted in said village, they are under no legal obligation to issue them.

• Whether the licenses to the others were property or improperly granted, we express no opinion, but confine our determination to this;■ that as there is no ordinance of said village by virtue of which thejr are under a legal obligation to grant a license to the relator, he cannot have relief by mandamus, and that the president and board of trustees having never deprived themselves of the discretion to prescribe the character of the persons who should receive license, they were j'ustified in refusing one to the relator, who is admitted to so conduct his business as to make it a nuisance.

The judgment of the Circuit Court awarding a peremptory writ of mandamus will he reversed.

Judgment reversed.


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    Thomas Forristal v. The People ex rel.
    1. Vacation of office—Election and qualification subsequent TO AN APPOINTMENT NOT NECESSARILY A VACATION.—The fact that a person, illegally elected to a municipal office, takes the oath and files his official bond, is not ipso facto a vacation of a former valid appointment to the same office; nor is he by such acts estopped from averring that he did not accept the office and enter upon the duties conferred by the void election.
    2. Holding over —If he did not accept the office under the void election, there was nothing to prevent him from continuing to act under the previous valid appointment until his successor was duly elected and qualified.

      Appeal from the Circuit Court of LaSalle county; the Hon. Josiaii MoRoberts, Judge, presiding. Opinion filed January 17, 1879.
    Messrs. Blanchard & Blanchard, for appellant;
    that this is a criminal proceeding and affected by the same rules of pleading, cited Donnelly v. The People, 11 Ill. 552; The People v. Koener, 21 Ill. 65; The People v. M. & A. R. R. Co. 13 Ill. 66; Lavalle v. The People, 68 Ill. 252.
    Respondent’s first plea established a good title to the office: Session Laws 1875, 55.
    Kotldng less than the appointment of a successor could abrogate respondent’s title: The People v. Fairbury, 51 Ill. 149; State ex rel v. Loy, 64 Mo. 89; The People v. Tilton, 37 Cal. 614; McCall v. Byram Mf’g Co. 6 Conn. 428; The People v. Runkle, 9 Johns. 158; Stadler v. Delmit City, 13 Mich. 574; The People v. Whitmore, 10 Cal. 38; 1 Dillon on Municipal Corporations, § 158.
    An officer holding over is an officer de jure: State v. Howe, 25 Ohio, 588; The People v. Stratten, 28 Cal. 44; Spencer v. Champlin, 9 Conn. 536; Cong. Soc. v. Sperry, 10 Conn. 200; State v. Seay, 64 Mo. 89; Sparks v. Farmers Bank, 9 Am. Law Rev. 365; State v. McDaniel, 22 Ohio St. 354.
    Mr. Harry Mayo and Mr. G-. S. Eldredge, for appellee;
    that the election and qualification vacated the former appointment, cited King v. Hughes, 5 Barn & C.; Dillon on Municipal Corporations, § 164; Milward v. Thatcher, 2 T. Rep. 87; The King v. Ripon, 1 Ld. Rayned, 563; The King v. Trelanway, 3 Burr, 1615; Gabriel v. Clark, Cro. Car. 138; The King v. Goodwin, Doug. 383; Willie on Corporations, 617; Glover on Corporations, 139; The People v. Carigue, 2 Hill, 93; Van Osdel v. Hazard, 3 Hill 243; Regents, etc. v. Williams, 9 Gill & J. 365.
    Respondent must either deny the intrusion and set out his disclaimer, or justify by setting up a good title: The People v. R. R. Co. 1 Lans. 309.
   Sibley, J.

This was an information in the nature of a quo warranto, commenced by the People in the Circuit Court of LaSalle county, on the relation of James Hastings, mayor of the city of Mendota, against Thomas Forristal, to require him to show by what authority he held and exercised the office of city marshal of the city of Mendota.

To this proceeding Forristal filed two pleas; first, setting up that under the provisions of the charter of the city, at the annual meeting of the city council, in April, 1876, he was duly appointed city marshal; that he qualified under the appointment, and entered upon the duties of the office, and continued thereafter to perform the duties of the office, by virtue of such appointment up to the time of the institution of this proceeding; second, that at the annual meeting of the city council in April, 1877, by a majority vote of the aldermen, he was declared elected, and that he qualified under such election.

A demurrer was interposed to these pleas, and overruled as to the first, and sustained to the second, when judgment of ouster was entered against the defendant. Afterward, by leave, a replication was filed to the first plea, averring among other things, that Forristal, on the 16th day of April, 1877, ceased to execute the duties of his office by virtue of his appointment set forth in the plea, and disclaimed to exercise the office obtained by means of the appointment stated in that, plea, for the reason the city council unlawfully proceeded to fill the office of marshal without any name having been submitted to them by the mayor, and the defendant, after having been so elected, filed his official oath of office, qualified and accepted such election, and afterwards acted and claimed to act solely under that void appointment. The defendant rejoined to this replication as follows:

And now again comes said defendant, and as,to plaintiff’s replication to defendant’s first plea, says, that by reason of anything therein alleged, actio non, because he says that said defendant did not on the sixteenth day of April, A. D. 1877, or at any other time, disclaim any right to, or cease to exercise the duties of said office, by virtue of the appointment in said first plea set forth, but has ever since said appointment continued to exercise . and perform the duties of said , office, in manner and form as in said plea alleged, and of this the defendant puts himself upon the country.

To which rejoinder the people and the relator demurred. The court sustained the demurrer, and entered judgment of ouster against the defendant. From that judgment the defendant appealed, and the only question necessary to consider is the sufficiency of the rejoinder, for if that is a complete answer to the replication, no judgment of ouster upon either plea could have been properly rendered against the defendant.

There are indeed some nice and very technical rules of pleading discussed by counsel with much ingenuity, but as they do not pertain to the merits of the case, no sufficient reason is discovered for considering them. That Forristal was properly appointed in April, 1876, and had a right to continue over until that appointment had ceased to be operative by the legal election of a successor, or vacated by his own act, is not disputed; and that his election by the city council in 1877, without any nomination by the mayor, was unauthorized, cannot be seriously questioned. Then did the mere unlawful election ipso facto determine his right to hold over under the valid appointment of 1876, until his successor was duly elected and qualified? Certainly not. But it is argued that because he filed his oath of office under this void election, he is concluded from averring that he did not accept and enter upon the duties of the office under it. We think that this proposition is untenable. The mere fact of his taking the oath of office after the unauthorized election in 1877, did not necessarily result in his ceasing to perform the duties of the office under the valid appointment of 1876. He may have filed the oath without any intention to or ever accepting the void election of 1877. In that case then there was nothing to prevent him from continuing to act under the appointment of 1876 until his successor was duly elected and qualified. If" he had accepted the office attempted to be conferred upon him by the city council in 1877, and that was incompatible with his previous holding (of the incompatibility we express no opinion), the authorities are all to the effect that the office would have been vacated. The rejoinder alleges that Forristal did not disclaim to hold, or cease to exercise the duties of his office by virtue of his appointment made in April, 1876, but had continued ever since that appointment to perform the duties of the office under it. As the demurrer admits the facts stated in the rejoinder to. be true, we think that the court erred in entering a judgment of ouster against the defendant.

The judgment of the Circuit Court is therefore reversed and the cause remanded.

Judgment reversed.


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    Charles F. Ware v. Croft Pilgrim.
    Slandeb—Justification—Evidence.—The action was for words spoken charging the plaintiff with peijury. Defendant pleaded the general issue and justification, and upon the latter plea was the main contest. The evidence was very conflicting, and this court does not find the verdict so far against the weight of evidence as to warrant a reversal.
    Appeal from the Circuit Court of Stark county; the Hon. D. McCulloch, Judge, presiding. Opinion filed May 2,1879.
    Mr. C. K. Ladd and Mr. B. F. Thompson, for appellant;
    that testimony as to the social standing of the defendant should have been admitted, cited Hosley v. Brooks, 20 Ill. 116; Harbison v. Shook, 41 Ill. 142.
    Plaintiff should have been allowed to state his intention to testify to the truth before the justice: White v. The State, 16 Am. Law Reg. 751.
    The words charged are actionable and the law implies damages : Rev. Stat. 1877, 933; McKee v. Ingalls, 4 Scam. 30; 2 Greenleaf’s Ev. § 418; 2 Starkie on Slander, 47; 2 Selw. Nisi Prius, 428; 3 Blackstone, 93; Swift’s Ev. 487; Baker v. Young, 44 Ill. 42; Hatch v. Potter, 2 Gilm. 725; Gilmer v. Eubank, 13 Ill. 271; Hosley v. Brooks, 20 Ill. 116; Harbison v. Shook,
      41 Ill. 142; Zuckerman v. Sonnenschein, 62 Ill. 115; Flagg v. Roberts, 67 Ill. 485; Miller v. Johnson, 79 Ill. 58.
    The plea of justification must be proved as laid: Harbison v. Shook, 41 Ill. 142; Strader v. Snyder, 67 Ill. 404; Hicks v. Rising, 24 Ill. 566; Darling, v. Barks, 14 Ill. 46; Sandford v. Gaddis, 13 Ill. 329; Anson v. Stuart, 1 T. Rep. 752; Flint v. Pike, 4 Barn. & C. 473; Craft v. Boite, 1 Saund. 244; Maitland v. Goldney, 1 East. 436; Van Ness v. Hamilton, 19 Johns. 349; 1 Greenleaf’s Ev. § 58; Story’s Pl. 495; Hilliard on Remedies for Torts, 254.
    The presumption of law is against the commission of a crime: Sutphen v. Cushman, 35 Ill. 186; Roscoe’s Crim. Ev. 16; 1 Greenleaf’s Ev. § 34.
    The jury are not judges of the competency of the evidence: Harris v. Wilson, 7 Wend. 57.
    Instructions should be based on the evidence: Holcomb v. Davis, 56 Ill. 413.
    Repetition of the slanderous words may be considered in aggravation of damages: Stowell v. Beagle, 79 Ill. 525; Bush v. Crosser, 1 Kernan, 357; Taylor v. Church, 8 N. Y. 452; Viele v. Gray, 10 Abb. Pr. 6; Folkard’s Starkie, 398.
    Mr. M. Shallenbebgeb and Mr. M. A. Fullee, for appellee.
   Pillsbury, P. J.

This is an action on the case, brought by appellant against the appellee in the Stark Circuit Court, for words spoken by the appellee, charging plaintiff below with perjury and false swearing on the trial of a cause before a justice of the peace.

The defendant below pleaded the general issue and a special plea of justification. A trial was had, and a verdict rendered in favor of the defendant, upon which the court, after overruling a motion for a new trial, entered judgment, and the plaintiff appeals to this court. There is no serious dispute that the plaintiff proved the speaking of the words charged, and the contest below was upon the plea of justification.

Hpon this issue the evidence is very conflicting, many witnesses being sworn upon either side, and while we might be inclined to find a different verdict, were we trying the case as a jury, we are unable to say that the verdict is so far against the weight of evidence as to require a reversal of the judgment upon that ground.

It is urged that the plaintiff should have been allowed by the court to state whether, on the trial before the justice, his intention was to tell the truth. The plaintiff had already stated to the jury that he believed he was swearing to the truth before the justice, and it was discretionary with the court below to have the question and answer repeated; the plaintiff had all the benefit of such answer, and even if the action of the court in not permitting him to again answer were improper, which we do not now determine, it is. an error that did not injure him. We have carefully examined the instructions, and fail to find any material error in them, or the refusing or modification of those asked by plaintiff.

Perceiving no substantial error in the record, the judgment of the court below will be affirmed.

Judgment affirmed.


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    Thomas Mellor v. Croft Pilgrim.
    1. Drainage.—The owner of a superior estate cannot by any act of his, acquire the right to collect the surface-water upon his land and discharge it upon the land of his neighbor in streams, or in any manner or quantity different from the natural flow.
    2. Flowing water upon lands ov another—Continuing trespass. —Constructing drains in such a manner as to collect the surface-water upon one’s land and discharge it in streams upon his neighbor’s, is a continuing nuisance, and successive actions may be brought an 1 sustained as long as such nuisance is continued. The damages are not so permanent and certain in their character as to enable a jury to give compensation at once for the entire injury.
    Appeal from the Circuit Court of Stark county; the Hon. D. McCulloch, Judge, presiding. Opinion filed May 2, 1879.

      Mr. C. K. Ladd and Mr. B. F. Thompson, for appellant;
    that the judgment and transcript offered by the defendant is conclusive as to the existence of the nuisance, it being between the same parties and concerning the same drain, cited Nispel v. Laparle, 74 Ill. 306; Cransdon v. Leonard, 4 Cranch, 434; Mersereau v. Pearsall, 19 N. Y. 110; Beloit v. Morgan, 7 Wall. 619; White v. Coatsworth, 2 Seld. 137; Castle v. Noyes, 14 N. Y. 329; Kelsey v. Ward, 38 N. Y. 83; Gardner v. Buckbee, 3 Cow. 120; Bomehaud v. Dias, 3 Denio, 238; Embury v. Conner, 3 Comst. 522; Gould’s Pl. 445; Freeman on Judgments, § 249; Peak’s Ev. 36; Bac. Abr. title “ Pleas.”
    The injury is continuous, and successive actions may be sustained as long as the cause exists: McConnell v. Kibbe, 29 Ill. 485; Ill. Cent. R. R. Co. v. Grabill, 50 Ill. 242; Hazen v. Casey, 30 Wis. 553; Johnson v. Long, 1 Raym’d, 370; 2 Kent’s Com. 416; 2 Greenleaf’s Ev. § 472; 3 Starkie Ev. 991; 1 Hilliard on Torts, 574; Sedgwick on Measure of Damages, 155; 2 Waterman on Trespass, 244; Wood on Nuisance, § 823.
    Every continuation is a new cause of action: Sutton v. Clark, 6 Taunt. 29; Phear on Rights of Water, 100; Shodwell v. Hutchinson, 2 Barn. & Ad. 97; Roswell v. Prior, 1 Ld. Raymd. 713; 7 Bac. Abr. 639.
    Every man must so use his property as not to injure another: Rudd v. Williams, 43 Ill. 385; Ill. Cent. R. R. Co. v. Grabill, 50 Ill. 242; 2 Kent’s Com. 440.
    Throwing water upon lands of another entitles the injured person to an action: Stout v. McAdams, 2 Scam. 67; Tanner v. Volentine, 75 Ill. 624; Wood on Nuisance, §105;2 Waterman on Trespass, 234.
    Plaintiff is not obliged to receive surface water in different quantities or at different times than it naturally would come to his land: Clinton v. Myers, 46 N. Y. 514; Bellenger v. N. Y. C. R. R. Co. 22 N. Y. 42; Pixley v. Clark, 35 N. Y. 520; Corning v. Troy Iron, etc. Factory, 40 N. Y. 199; Merritt v. Brinkerhoff, 17 Johns. 319; Bridgewater v. Trafford, 1 Barn. & Ad. 874; Phear on Bights of Water, 3 Kent’s Com. 439; Evans v. Merriweather, 3 Scam. 492; Baird v. Williamson, 15 C. B. (N. S.) 376.

      If the drain threw the water upon plaintiff’s land in a different manner or quantity, defendant is liable: Livingston v. McDonald, 21 Iowa, 160; Gillham v. Madison Co. R. R. Co. 49 Ill. 484; Bigelow on Torts, 493; Wood on Nuisances, §121; Higgins’ Law of Watercourses, 156; Shears v. Wood, 7 Mo. 345.
    The superior heritor cannot, by a system of drainage collect the water and precipitate it on the land below: Smith v. Rennick, 7 C. B. 515; Dickerson v. Worcester, 7 Allen, 19; Butler v. Peek, 16 Ohio St. 334; Miller v. Laughbach, 47 Penn. 154; Gormley v. Sandford, 52 Ill. 158; Nevins v. City of Peoria, 41 Ill. 502; Angell on Watercourses, §108; Adams v. Walker, 34 Conn. 466; Curtiss v. Eastern, 98 Mass. 428.
    Plaintiff cannot be required to make ditches upon his land for the purpose of receiving the water: Goodale v. Tuttle, 29 N. Y. 466.
    Although a portion might naturally flow upon plaintiff’s land, defendant could not, by ditches, turn the remainder thereon: Butler v. Peck, 16 Ohio St. 335; Kauffman v. Griesemer, 26 Pa. St. 407; Martin v. Riddle, 26 Pa. St. 415; Washburn on Easements, 353.
    The same rules apply to underground waters, or waters percolating through the soil: Phear on Rights of Water, 33; Broadbent v. Ramsbotham, 11 Exch. 602; Pixley v. Clark, 35 N. Y. 520; Cooper v. Randall, 53 Ill. 24.
    Generally as to defendant’s liability: Higgins’ Law of Watercourses, 81; Wormersley v. Church, 17 L. T. Rep. 190; Tipping v. Eckersley, 2 K. & J. 264; Mayor v. Chadwick, 11 A. & E. 571; Laing v. Whaley, 3 H. & N. 675; Wood v. Wand, 3 Exch. 781; Stockport Co. v. Potter, 7 H. & N. 160; St. Helen’s Co. v. Tipping, 11 N. L. Cas. 642.
    Hpon the question of damages: Sedgwick on Measure of Damages, 153; Tooth v. Clifton, 22 Ohio St. 247; Wood v. Wand, 3 Exch. 772.
    Mr. Miles A. Puller, for appellee;
    upon the question of a former judgment being a bar, cited Briscoe v. Loyd, 64 Ill. 33; Rogers v. Higgins, 57 Ill. 244; Howell v. Goodrich, 69 Ill. 557; Gibbs v. Cruikshank, Moak’s Eng. R. 211.
    Where the nuisance is one that will continue without change, then the damage is an original damage, and may at once be fully compensated: Powers v. Council Bluffs, 45 Iowa, 652; Town of Troy v. Cheshire, R. R. Co. 3 Foster, 83.
    The owner of the dominant heritage may drain his land for purposes of cultivation, even though an increased flow of water upon the servient estate is thereby created: Swett v. Cutts, 50 N. H. 439; Beard v. Murphy, 37 Vt. 99; Martin v. Riddle, 26 Pa. St. 415; Kauffman v. Grisman, 26 Pa. St. 407; Hays v. Hinnkerman, 68 Pa. St. 324; Sawen v. Shiff, 15 La. An. 681.
    Upon the question of damages: Ottawa Gaslight & Coke Co. v. Graham, 23 Ill. 78; Cooper v. Kandall, 53 Ill. 24.
   Pillsbury, P. J.

The appellee is the owner of a farm in Bureau county, and the appellant of one in Stark county. The farms are separated by a public highway, the center of which is the line between the lands of the parties. The land of the appellee is slightly higher than that of appellant, yet the natural drainage is so gradual as to make no perceptible difference between the two farms relative to the amount of surface-water standing upon them. There is a slight depression upon the land of appellee, extending to and across the highway, and upon and across the land of appellant.

In the spring of 1876 the appellee constructed a tile drain, commencing near said highway and extending northerly along said depression for about twenty rods, thence dividing into two branches, running in a northwest and northeast direction for about forty rods, and ending in a flat or sag. The effect of this drain was at once to make the land of appellee dryer, and to increase the flow of water upon that of appellant, rendering quite a portion of it unfit for pasturage or cultivation. It appears, also, that in June, 1876, Mellor recovered a judgment against Pilgrim for sixteen dollars, before a justice of the peace, for damages sustained by him in consequence of the construction and continuance of said drain up to date of the commencement of said suit. This judgment was never appealed from, but was paid by appellee. This suit was commenced in the Circuit Court by appellant, to recover for damages sustained by him since said suit was commenced before the justice.

Upon trial in the Circuit Court verdict and judgment was had against appellant, and he appealed to this court.

That the appellee laid the drain as alleged is not denied ; that it caused the water to flow upon appellant’s land in increased volume, thereby damaging 1dm, cannot upon this record be successfully controverted.

A party purchasing land over which surface-water naturally flows from that of a coterminous proprietor, takes it with the burden of receiving such surface-waters, and cannot, by drains, dykes or other obstructions, impede or stop such natural drainage to the injury of the owner of the superior heritage; on the other hand, the owner of the superior heritage cannot, by any act of his, acquire the right to collect the surface-waters upon his land by artificial channels, and thus flow his neighbor’s land without his consent.

He cannot impose upon the land of an adjoining proprietor without his assent, or at least acquiescence, the additional burden of having the surface-water converted into a stream, when it is discharged upon his land.

He is bound to receive such surface-water as naturally comes to his land, but is not obliged to accept it to his injury in larger quantities or at different times than he otherwise would but for the voluntary act of his neighbor. Such we believe to be the rule in this State: Gillham v. Mad. Co. R. R. Co. 49 Ill. 484; Gormley v. Sandford, 52 Ill. 158.

This rule does not interfere with the right of the owner of land to make drains upon his own lands, and discharge their contents into natural watercourses, for in the case at bar there can be no pretense even that the depression shown to exist was of that character.

The whole case here is, that the appellee collected the surface-water upon his land, and from some parts of it which did not flow naturally over that of appellant, and discharged it in increased volume upon the farm of appellant. This the law gave him no right to do.

The instructions given by the court at the instance of the appellee, in so far as they are not in consonance with the views above expressed, are erroneous.

It is argued by counsel that the judgment rendered by the justice of the peace is a bar to the present suit. This position we deem untenable. There would be force in the argument if the injury caused by the construction of the drain went to the destruction of the entire estate, and in that case the authorities cited would be applicable. Here, however, the damages are not so permanent and certain in their character as to enable a jury to give compensation at once for the entire injury. It is in the nature of a continuing nuisance, and in such cases successive actions may be brought and sustained as long as such nuisance shall be maintained.

We have no doubt that the appellant should recover upon the facts in this record.

The judgment must be reversed and the cause remanded for anew trial, when the jury can be instructed in harmony with the rule announced in this opinion.

Reversed and remanded.