author: Green, P. J.

text:
    Herman G. Webber, U. S. Marshal, for use, etc. v. Mackey, Nisbet & Co. et al.

      Replevin—Bond—Debt—Fraudulent Conveyance—Personal Property— Chattel Mortgage—Former Adjudication—Certificate of Magistracy— Acknowledgment—Recording—Damages— Whether Excessive—Pleading —Evidence—Review of—Instructions—Practice.

    1. Where it is shown in an action on a replevin bond that the merits of" the case were not determined on the trial of (he action in which the bond was given, a recovery of more than nominal damages can not be had.
    2. The intent of a mortgagor to defraud, does not, in the absence of fraud on the part of the mortgagee, affect the latter’s title or invalidate the mortgage.

      8. A matter which has been adjudicated by a court of competent jurisdiction, shall be deemed finally settled in any subsequent, litigation between tlvi same parties where the same question or questions arise.
    4. No complaint can be made of the admission in evidence of a chattel mortgage, having no certificate of magislracy attached, the same having been acknowledged before a justice in another county, when possession of the mortgaged property was immediately taken by the mortgagees upon the execution, acknowledgment and delivery thereof, nor is it necessary in such case to acknowledge and record the same.
    5. In an action of debt upon a replevin bond, given by mortgagees of goods attached by creditors of the mortgagor, it being alleged that the morigages in question were given in fraud of creditors, this court holds that said mortgagees, in taking the notes and chaltel mortgages, acted with honest purpose to secure and provide for the payment of debts then due them, without the intent to hinder or delay other creditors of said mortgagor, and that the value of the mortgaged property was not greater than the mortgagees might- rightfully take to secure payment of the amount due them, nor so in excess of the amount thereof as to justify suspicion of fraudulent intent.
    6. In the case presented, this court holds that the demurrer to plaintiff’s second amended replication was properly sustained, the latter not averring the necessary requisites to amount to a sufficient defense of estoppel by former adjudication.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Saline County; the Hon. Robert W. McCartney, Judge, presiding.
    This suit was on a replevin bond executed by appellees to Tanner, U. S. Marshal, who was succeeded in office by appellant. A plea of non esi factum was interposed and issue joined thereon ;' also a plea, except as to nominal damages, averring the property in controversy in the replevin suit was, at the time of the trial thereof, the property of the plaintiffs therein, and the merits of the case were not heard and were not determined in said case; the plea by apt averments sets forth and shows specifically why the merits were not there determined, and that said replevin suit was dismissed in the Federal Court for want of jurisdiction. To this plea was a replication denying the property of said goods and chattels was in plaintiffs, but averring it was in Jones, the said usee, as sheriff, by virtue of nine attachment writs sued out of the Circuit Court of Franklin County, Illinois, directed to him as sheriff and by him levied on the said goods and chattels. Issue was joined on this replication; plaintiff filed a second replication to said second plea, which replication was demurred to and amended, then as amended was again demurred to and again amended, and a demurrer to it then as amended was sustained and plaintiff excepted. The trial was had on the issue joined and resulted in a verdict for plaintiff below for $8,000 debt and $260 damages, whereupon plaintiff entered his motion for a now trial, which the court overruled and rendered judgment for plaintiff in the sum of $8,000 debt, to be discharged upon the payment of the damages and costs of suit, and plaintiff appealed. The errors assigned, relied on to reverse this judgment, are the rulings of the court in sustaining the demurrer to said second amended replication, in admitting the chattel mortgages in evidence, in refusing certain instructions requested on behalf of the plaintiff, giving certain instructions for defendants, and overruling the motion for a new trial.
    Messrs. F. M. Youngblood, W. J. N. Moyers, W. S. Cantrell and J. S. Smith, for appellants.
    It is not necessary now under our statute that a conveyance to justify an attachment must be made with a “fraudulent ” intent, but is sufficient if the evidence shows that the conveyance was made with intent to disturb, hinder, delay or defraud creditors.
    Sec. 4 of Chap. 59, Starr & C. Ill. Stats., provides:
    “ Every gift, grant, conveyance, assignment, transfer or change upon any estate, real or personal, or right, or thing in action, or any rent or profit thereof, made with intent to disturb, delay, hinder or defraud creditors or other persons, shall be void as against such creditors, purchasers or other persons.”
    It will be seen that this section makes all conveyances falling within its provisions absolutely void.
    Clause 6, Sec. 1, of Chap. 11, Starr & C. Ill. Stats., provides :

      “ Where the creditor has, within two years preceding the filing of the affidavit required, fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder or delay his creditors.”
    This clause is made a ground for suing out an attachment and is the statutory provision under which this suit was begun. These two statutes must necessarily be construed together. The first referred to declares that all dispositions of personal or real property, made'with intent to disturb, delay, hinder or defraud creditors shall be void. The latter clause referred to declares a right of action by attachment in favor of any creditor who may be defrauded by any such conveyance, or who may be disturbed, delayed or hindered in the collection of his debt thereby.
    Apply the proofs in this case to these two statutory provisions, and if we do not find that this conveyance falls within the definition of a fraudulent transfer, then I admit that I am unable to conceive of a state of facts which would authorize a creditor to resort to this statutory remedy.
    Again, these mortgages were fraudulent for the reason they convey, as the evidence shows, at least $12,000 worth of goods to secure a little over $4,000.
    In support of this proposition we respectfully refer to the case of Strohen v. Hayes, 70 Ill. 41. In that case the Supreme Court held a chattel mortgage void which conveyed $2,000 worth of property to secure a debt of $400.
    Again, we insist that the conditions attached to these mortgages stamp them as absolutely fraudulent. Empowering the mortgagees to dispose of the entire stock of goods, which was worth, to say the least, three times the amount of their debt, in any way that they might see fit, is a provision incompatible with honesty and fair dealing. The attachment law of Illinois should be liberally construed, so as to protect the rights of creditors; so say the Supreme Court in Hannibal and St. Jo. Railroad v. Craine, 102 Ill. 249; see, also, Phelps v. Foster, 18 Ill. 309.
    As to the weight to be given to the testimony of Crawford, Hubbs and Stephenson, as to the intent with which the mortgages were made and accepted, we beg leave to refer to the case of Bell v. Devore et al., 96 Ill. 217. In that case the Supreme Court says, that .if all the circumstances show the object of the parties to have been to hinder and delay the creditors, then their sworn statement that the deed was made in good faith, amounts to but little.
    We also beg leave to refer to the case of Shove v. Farwell et al., 9 Ill. App. 257, and Hansen v. Dennison, 7 Ill. App. 73.
    Messrs. Parish & Parish and Morris & Son, for appellees.
    A purchaser of goods taken in payment of an honest debt is protected in his title though he knew his vendor intended to defraud creditors. Gray v. St. Johns, 35 Ill. 222; Kranert v. Simon et al., 65 Ill. 344; Read et al. v. Wilson, 22 Ill. 377.
    An insolvent debtor has the right to prefer one creditor to another by making him a sale of all his stock of goods in payment of the debt, or in part payment. Goembel et al. v. Arnett et al., 100 Ill. 35.
    “ A mortgagee is entitled to property of value fully sufficient to cover his demand under any and all circumstances that may be expected, or reasonably apprehended.” Bump on Fraudulent Conveyances, 3d Ed., page 46; Truitt v. Griffin, 61 Ill. 26.
    The mortgages providing for immediate possession by mortgagees, and actual possession following at once, there was no necessity for either acknowledging or recording them. This is settled by the first section of the chapter on mortgages and so many decisions of the courts of this State, that the question is not debatable, and for a like reason no certificate of magistracy was necessary. Wilson v. Pearson, 20 Ill. 81; Chipron v. Feikert, 68 Ill. 284.
   Green, P. J.

The amended replication to which the final demurrer was sustained, in substance sets up that the property claimed by defendants was levied upon by said Jones by virtue of nine attachment writs in favor of creditors of Thomas J. Crawford, the affidavits for which writs charged that he had,'within two years prior to the filing thereof, fraudulently conveyed said property so as to hinder and delay his creditors; that the conveyances were two chattel mortgages from him to Mackey, JSTishet & Co., and Hinkle, Mishet & Co., conveying to them the property replevied, and this was the only title said Jones had to said property, and that Crawford and said firms made and entered into said mortgages for the purpose of hindering and delaying the other creditors of Crawford; that Jones by virtue of said writs seized and took the property from the possession of said firms and retained such possession until after the execution of the replevin bond, when said property was replevied by Tanner, United States Marshal, and delivered to said firms by virtue of the writ of replevin in the declaration mentioned; that afterward, at the April term, 1885, of the Franklin Circuit Court, the attachment suit was heard and determined, and said firms appeared by counsel, and in the name of said Crawford litigated their i right to said property as such mortgagees, and the question litigated and defense made was as to the validity of the mortgages and the rights of the mortgagees thereunder; and that the title of said mortgagees to said property was by said court fully adjudicated and determined in their favor; that said attaching creditors appealed from said judgment to the Appellate Court for the fourth district, in which court said firms again appeared by counsel and litigated their claim to said property as mortgagees; that at the August terra, 1885, of the Appellate Court, said judgment was'reversed and cause remanded; that said attachment cases were placed on the docket of said Circuit Court for trial in pursuance of the remanding order, and at the April term, 1886, said firms again appeared by counsel and filed their motion in writing to be made defendants and for leave to interplead under the statute, which motion was allowed, and said firms thereby became defendants, and leave was given them to file their respective interpleaders, but therein they made default, whereupon final judgments were rendered by said court awarding special executions in each of said attachment suits for the sale of said property, and that afterward such proceedings were had. in said Circuit Court as resulted in the court holding said mortgages void as against the attachment creditors of Crawford. The replication then concludes: “Wherefore, plaintiff avers, the merits of the title of the said Mackey, ifisbet & Co. and Hinkle, Hisbet & Co. to the goods and chattels in said declaration and plea mentioned, have been fully adjudicated by the said Circuit Court of Franklin County since the making of the writing obligatory in plaintiff’s declaration mentioned; all of which plaintiff is now ready to verify,” etc.

The right to lile the plea to which this amended replication was interposed is given by statute, when the merits of the case have not been determined in the trial of the action in which the bond was given, and if, supported by the evidence, such defense is sufficient to defeat a recovery of more than nominal damages in a suit on a replevin bond. By the second amended replication plaintiff attempted to set up a former adjudication .against the mortgagees’ title to the replevied property, that would estop them thereafter to assert such title, and again litigate that question in any subsequent controversy wherein it arose; but in our judgment the replication as amended was fatady defective, and the demurrer to it was properly sustained. All that part of said replication up to and including the averment that said attachment cases were re-docketed in the Franklin Circuit Court, discloses no other adjudication in the Circuit Court than that determining the title to the mortgaged property to be in mortgagees; and the remaining averments, that said firms again appeared by counsel and filed their written motion to be made defendants, and for leave to interplead, and they thereby became defendants, and leave was given them to file interpleaders, but therein they made default, are, in legal effect, admissions that said firms, after the re-docketing of said cases, had ceased to appear by counsel, and in the name of Crawford litigate their right to said property as mortgagees, did not become defendants, and did not avail themselves of the permission' given to file interpleaders; hence the controversy was then left between the plaintiffs in attachment and Crawford, and his intent in conveying the property, and not the intent of said firms in taking and accepting said notes and mortgages, became the issue. Unless the mortgagees did become defendants and file interpleaders, no issue as to their title could be determined; nor was their title necessarily involved in the question whether or not Crawford had been guilty, as charged in the affidavit, of the act of fraudulently conveying said propeity within two years, so as to hinder and delay his creditors. His fraudulent intent, unless participated in by the mortgagees, did not affect their title or invalidate the mortgage. Herkelrath et al. v. Stookey, 63 Ill. 486; citing and approving Hessing v. McCloskey, 37 Ill. 351; Ewing v. Runkle, 20 Ill. 448. The averment that the merits of the title of said firms to the property attached have been fully adjudicated by said Circuit Court, is a mere conclusion of the pleader, negatived by the averments which precede it in said replication. As we construe this amended replication, it does not aver that in the final litigation of the attachment cases, the mortgagees appeared by counsel -and in the name of Crawford litigated their rights to said property, or appeared and became defendants, or that their title to said property was in issue, or was finally adjudicated and determined against them. Hence the cases of Cole v. Favorite, 69 Ill. 457, and Bennitt et al. v. The Wilmington Star Mining Co., 119 Ill. 9, cited on behalf of appellant, can have no application and are not in point; but this case, so far as the amended replication and its sufficiency is concerned, comes within the operation of the rule announced in numerous decisions, that the fundamental principle upon which the former adjudication of a question is allowed as an estoppel, is that justice and public policy alike demand that a matter consisting of one or many questions, which has been adjudicated by a court of competent jurisdiction, shall be deemed' finally settled in any subsequent litigation between the same parties, where the same question or questions arise; these requisites to a sufficient defense of estoppel by former adjudication, are not averred in said amended replication, as we have already stated, and it was obnoxious to the demurrer. Hanna v. Read et al., 102 Ill. 596; The Riverside Co. v. Townsend et al., 120 Ill. 18.

The objection to the admission of said chattel mortgages in evidence, as stated in appellant’s brief, is, that they were acknowledged before a justice of the peace in Franklin county and were offered in evidence in Saline county, and had no certificate of magistracy attached. It appears, however, possession of the mortgaged property was taken immediately by the mortgagees at the time the mortgages were executed, acknowledged and delivered to them. It was not, therefore, necessary to acknowledge and record the instruments, or attach such certificate to make them competent evidence. Wilson v. Pearson, 20 Ill. 81; Chipron v. Feikert, 68 Ill. 284.

Plaintiff’s instructions, 9th, 10th, 11th, 12th and 13th, were properly refused. The 9tli states that said chattel mortgages could not be considered by the jury as evidence without a certificate of magistracy being attached. The 10th asserts the law to be that all chattel mortgages before they can affect, the rights of third parties must be acknowledged before a justice of the peace in the precinct where the mortgagor lives and be entered in his docket, or if there is no justice residing in the precinct, then such mortgages must be acknowledged before the county judge of the county.

Under the facts these instructions are improper. The mortgagees took immediate possession of the property as before stated, and it was not essential to the validity of the mortgages that they should have been so acknowledged. The lltli instruction is to the effect that “ if the jury believed the chattel mortgages were made to hinder and delay the other creditors of the mortgagor, and such fact was known by the mortgagees, then they must find for the plaintiff.” As a proposition of law we think the instruction incorrect, aside from the objection that it does not require the jury to base their belief on the evidence.

“The 12th states the law to be,that a failing debtor can not now prefer one creditor in preference to another by chattel mortgages, by turning over to one of his creditors his entire property under a chattel mortgage, when his entire property, so mortgaged, is greatly in excess of the debt secured by such mortgage.” We do not so understand the law to be.

The 13th instruction is subject to the same objection as the 10th.

The instructions given on behalf of defendants, taken in connection with those given for the plaintiff, are not subject to serious objection. The suggestion on behalf of appellant, that the jury should have assessed, either the amount due on the attachment writs as the measure of damages, or nominal damages only, may be conceded, and we think, under the evidence, $260 damages were excessive, but the defendants alone have the right to complain of the verdict and judgment for that reason. The only other error assigned we deem it necessary to refer to, is the overruling plaintiff’s motion for a new trial; and, after what has been said by us, only one question upon that point remains undisposed of. Was the verdict of the jury justified by the evidence? After a careful examination of the evidence in the record we have reached the conclusion, which the jury evidently arrived at, that the mortgagees, in taking the notes and chattel mortgages from Crawford, acted with an honest purpose to secure and provide for the payment of debts then du.e them, and without intent to hinder cr delay the other creditors of Crawford, and that the amount in value of the mortgaged property was not greater than the mortgagees might rightfully take to secure the payment of the debts due them, nor so greatly in excess of the amount of such debts as to justify suspicion of a fraudulent intent.

We perceive no error requiring us to reverse the judgment and it is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Commissioners of Highways v. David E. Newby, by his Next Friend.

      Highways—Condemnation—Irregular Acta of Commissioners—Certiorari—Pleading—Secs. 13 and. 32, Art. 2, Constitution—Compensation— Laches—Evidence—Costs.

      1. In proceedings for the condemnation of private property for public use, the law must be strictly complied with before the owner is disturbed.
    2. Condemnation without just compensation is forbidden.
    8. Upon petition lor a writ of certiorari to review the proceedings of highway commissioners in establishing a road, this court holds that Certain papers, proceedings and affidavits, filed as an amended return to the writ, were properly stricken from the files, as seeking to establish matters aliunde the record by r.iis.ng an issue of fact to be tried by the court.
    4. Where the board have complied with the provisions of the statute in relation to establishing such highway, their proceedings and order establishing the same being regular and lawful, and itsoapp1 a-s upon inspection of the record, it is the duty of the court to quash such writ; but if, upon such inspection, it does not so appear, said record and proceedings s.-ould be quashed.
    [Opinion filed June 15, 1889.]
    In error to the Circuit Court of Clay County; the Hon. C. S. Conger, Judge, presiding.
    Messrs. H. H. Chesley and E. S. Boyles, for plaintiffs in error.
    Mr. F. G. Cockrell, for defendant in error.
    It will be seen by the various sections of the statute that there are certain conditions or limitations which must be complied with before commissioners of highways can order a road to be opened.
    First. Upon the receipt of a petition they must fix a time and give notice when and where they will meet to hear reasons for or against a road.
    Second. They may adjourn this meeting from time to time, hut not for a longer period than ten days in all, and shall, at the first, or such adjourned meeting, within said ten days, decide whether they will grant the petition.
    Third. Before they order any road to he established they shall ascertain the damages.
    Fourth. And unless the damages are released or agreed upon, they shall, within ten days after granting a petition, make a certificate and call for a jury to assess the damages.

      And within ten days after the total damages have been agreed upon, released or assessed, they shall hold a meeting and finally decide whether they will order the road to be opened, and within five days after this meeting they must file such final order and all papers with the town clerk.
    A failure to file such final order within the time required is an abandonment of the proceedings. Breese v. Boole, 16 Ill. App. 551.
    There is nothing appearing in the record which accounts for the delay from December 28, 1883, the time the petition was signed, to the 11th of September, 1884, when the final order is supposed to have been filed. It does not appear that the damages were agreed upon or released within ten days from the time the meeting was held, February 7, 1884, at which the prayer of the petition was granted, nor does it appear that within ten days thereafter, on failure to obtain releases of damages, a jury was called to assess the damages.
    A more bungling and confused state of affairs is rarely found than appears in this imaginary record.
    The amended return, if true and regular in all respects, demonstrated that the primary steps toward opening the road had been taken on the 7th day of February, 1884, and prior thereto, but such amended return was only supported by the affidavits of the commissioners of highways and town clerk, without accounting for the loss or absence of the record or original papers.
    It was not competent to introduce evidence of this character into the record.
    “No trial can be had on any issue of fact, hence the writ does not require a return of the evidence or of any facts outside of the record.” Savage v. Board of Commissioners, 10 Ill. App. 204.
    Therefore the motion to strike the amended return from the file was properly sustained by the court, for the reason that said amended return sought to establish matters outside of the record by oral testimony, without laying any foundation therefor; and as this motion, amended return and decision of the court have not been preserved by bill of exceptions, error can not be assigned thereon. Neely v. Wright, 72 Ill. 292; Daniels v. Shields, 38 Ill. 197; Parsons v. Evans, 17 Ill. 238.
    Two fatal objections arise upon this supposed record.
    First. The commissioners failed to assess the damages of complainant, and this is jurisdictional.
    Second. Having received and granted the petition in February, 1881, and not having complied with the statute in obtaining the releases or calling for a jury, within ten days, to assess the damages, it was an abandonment of the proceedings, and the commissioners lost jurisdiction thereafter.
    It is an abandonment of the proceedings, where the final order is not filed with the town clerk within the time specified in the statute. See Breese v. Poole, 16 Ill. App. 551.
    To a far greater extent should it be held an abandonment where the commissioners fail to obtain necessary releases or file the certificate and call for a jury to assess damages within ten days after granting the prayer of a petition, as this preliminary is necessary to retain j urisdiction.
   Green, P. J.

Defendant in error, by David Burton, his next friend, filed his petition in the Circuit Court of Clay County, alleging his minority; that he is a non-resident owner of a forty-acre tract of land in said county, describing it, over which a road is sought to be opened ; that the order of plaintiffs in error establishing said road has been entered, by virtue of certain proceedings of said board set forth in the petition, which are alleged to be irregular, illegal and void; prays for the issuance of a common law writ of certiorari, to bring before the Circuit Court the record of the proceedings of said board relating to said road, that said record and proceedings may be inspected by the court, and if found to be irregular and void, that the same maybe quashed. The writ as prayed for was issued; the record and proceedings of plaintiff in error in relation to said road were brought into the Circuit Court as a return to said writ. Plaintiffs in error also as an amended return, placed on file certain papers, proceedings and affidavits, which, on motion of the attorney for petitioner, were stricken from the files, and upon the hearing said record and proceedings of the plaintiffs in error, as set forth in the original return, were quashed, and defendants below ordered to pay the costs, to reverse which order and judgment quashing said record and proceedings, this writ of error was sued out.

The errors assigned are, 1st, “The court erred in striking amended record from the files;” 2d, “ In sustaining plaintiffs’ demurrer to answer;” 3d, “The court erred in quashing the record.”

A sufficient reply to the first and second assignments of error is,that the so-called amended answer and record stricken from the files, sought to establish matters aliunde the record by raising an issue of fact, to be tried by the court. In the then status of the case, the writ of certiorari having been issued, and the question of its issuance, or the propriety or necessity therefor, not being before the court, the court could only inspect the record before it, and determine from it whether the proceedings of plaintiffs in error were lawful and regular, and that they acted within their jurisdiction in making the order establishing said road, or whether, by the record, it appeared that their said proceedings were irregular and unlawful and said order void. If the board complied with all the provisions of the statute in relation to the establishing of a public highway, and their proceedings and order establishing the road in question were lawful and regular, and it so appeared upon an inspection of the record before the court, it would be the duty of the court to quash the writ of certiorari. If upon such inspection it did not so appear, the said record and proceedings should be quashed. Hyslop v. Finch, 99 Ill. 171.

Furthermore, if it had been error to strike from the files the said papers, proceedings and affidavits, which we do not concede, such error would not be sufficient to reverse the order and judgment of the Circuit Court, because, had they been permitted to remain, and the facts therein alleged have thereby been fully established, there yet remained unremoved a defect fatal to the order complained of, establishing said road, which we will now proceed to consider under the last assignment of error.

It nowhere appears that prior to the making and filing of said order, the petitioner or any one by him thereto lawfully authorized, agreed with said commissioners as to the damages for laying out and use of said road over petitioner’s land, or that his claim to said damages was released, or that said damages were ascertained by a jury, as required by the statute in cases where no release is executed or agreement made with the board by the owner touching the damages, nor does it appear by the record as returned, or in the papers, proceedings and affidavits stricken from the files, that petitioner has been paid or tendered any compensation or damages for his land, proposed to be taken, and the use thereof for said proposed highway. Under such circumstances, to sustain the record of proceedings and order of plaintiffs in error, would be a direct violation of Sec. 13 of Art. 2 of the Constitution of this State, which provides, “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law;” and would also be a violation of the provisions of the statute in force when said order was made, a strict compliance with which provisions is a necessary condition precedent to the lawful exercise of power by commissioners of highways to establish public roads. These provisions it is unnecessary to set forth in detail, but they are to be found in Sec. 32 et seg. of said statute. The purpose is to provide means whereby the public may acquire the use of private property for public highways in a mode securing to the owner of the land all the rights guaranteed by the State constitution, and our courts have been ever vigilant in so construing the statute as to effect such purpose.

Condenmation without just compensation is forbidden. Just compensation can not be made without ascertainment, and ascertainment except by a jury is impossible. People ex rel. D. & S. L. Ry. Co. v. McRoberts, 62 Ill. 38; Kine v. Defenbaugh, 64 Ill. 291; Carpenter v. Jennings et al., 77 Ill. 250.

In Hyslop v. Finch, supra, the rule is stated that whenever, in pursuance of law, the property of an-individual is to be divested by proceedings against his will, there must be a strict compliance with all the provisions of the law which are made for his protection and benefit. These provisions must be regarded as in the nature of conditions precedent, which must be complied with before the right of the property owner is disturbed. The party claiming authority under the adverse proceeding must show by the 'record affirmatively, that the law has been complied with. The omission to comply with and perform the conditions precedent is not a mere irregularity, but a defect that goes to the jurisdiction of the commissioners ,to make the order declaring the highway laid out and established, and goes to the root of the proceedings and renders such order absolutely void.

The cases cited are decisive of this case. In Hyslop v. Finch, supra, the defect in the proceedings rendering void the order was, that a jury of six instead of twelve men assessed the damages to the land owner, and set off benefits against damages for land taken for the public highway.

In this case, in addition to other defects not necessary to mention,' the condition precedent of ascertaining appellee’s damages by a jury, he nor any one by him authorized having agreed upon or released the same, was not complied with; hence the order establishing said road was made without lawful authority and is absolutely void. It is suggested, however, by counsel for plaintiffs in error, that the issuance of the writ of certiorari was barred by lapse of time and the laches of the petitioner, and that the Circuit Court erred in adjudging costs against the defendants below. These are objections we can not consider under the assignment of errors upon this record. The order and judgment of the Circuit Court is affirmed.

Judgment affirmed.


author:
      Per Curiam.

      Per Guriam.

text:
    Henry Bernhard v. James W. Brown.

      Practice—BUI of Exceptions—Insufficient Record—Due Bill for Flour —Rehearing—Rule—Stipulation.

    1. In an action upon a due bill calling for a certain quantity of flour, the record in several respects being defective, this court declines to interfere with a judgment for plaintiff.
    2. This court will not consider a cause upon its merits, where the record fails to show an exception to the judgment of the trial court, or a motion for a new trial entered.
    3. Neither such omissions, nor the rule of this court touching rehearings can be waived by stipulation.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.
    Messrs. E. N. Rinehart and S. F. Gilmore, for appellant.
    Mr. William B. Wright, for appellee.
   Per Curiam.

The record in this case is not certified to by the circuit clerk nor does the bill of exceptions contain the due bills and receipts upon which the claim for judgment is based. We have before us in this case a record not certified to by the clerk, a bill of exceptions certified to by the judge, with nothing but the bill of exceptions to show the judgment. So far as the judgment is shown there was no exception to the same or motion for new trial. With the record in this condition, we must affirm the judgment without considering the merits of the cause.

The judgment is affirmed.

Judgment affirmed.

[On petition for rehearing. Opinion filed August 29, 1SS9.]

Per Guriam.

This petition for rehearing comes too late under the rules of this court, to be considered. Counsel for appellee, however, seeks to avoid the rule of court by consenting to a rehearing. Consent of counsel for appellant and appellee can not, however, avoid the fact appearing on this record, that the judgment of the Circuit Court was not excepted to, nor a motion for new trial entered. One or the other must be shown to give us jurisdiction to hear and determine a case on its merits. That can not be waived by counsel, nor can we recognize the right of counsel to waive the rules adopted by this court with reference to rehearing. This motion for a rehearing is dismissed.

Motion dismissed.


text:
    Hubert Kuenster v. The Board of Education.

      Schools—Employment of Teachers—Want of Certificate—Injunction— Recovery of Wages—Districts of More Than2,000 Inhabitants.

    Upon a bill brought to restrain a township treasurer from paying, the board of education from issuing an order for the payment of, and the receipt of payment by a teacher not holding a certificate of qualification from the county superintendent of schools, the board in question being that of a district containing more than 2,000 inhabitants, this court holds that under Sec. 80 of the.general school laws, it was authorized to examine and employ teachers not possessing such certificates.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Monroe County; the Hon. B. H. Canby, Judge, presiding.
    Messrs. Morrison & Winkelman, for appellant.
    Messrs. Slate & Rickert, for appellees.
   Green, P. J.

Appellant filed bis bill for injunction to restrain said board of education from drawing any order on the township treasurer for the payment of Wixford as teacher, and to restrain said treasurer from paying and said Wixford from receiving any money for the payment of his services as teacher. On hearing, the temporary injunction ordered was dissolved (except as to the payment for five days’ services), and appellant brings the record before this court and asks to have the decree reversed.

The members of the board of education were duly elected and qualified to act as such, in and for said district containing more than two thousand inhabitants, and acting in their official capacity appointed two of the members thereof a committee to examine and make contracts with teachers, and said committee afterward, at a regular meeting of said board, made and presented their report, setting forth that they had examined the teachers named therein, among others said Wixford, all of whom they found well qualified to fill their respective positions as teachers of said schools, and they had then made a written contract with said teachers, including Wixford, employing him as teacher for the school term ending J une, 1888. On motion, this report of the committee and said contract were adopted by the vote of a majority of the members of the board at the same regular meeting. ¡Notwithstanding this employment of Wixford as such teacher by the board of education, it is insisted he has no lawful right to receive pay as such, because he had not a certificate of qualification from the county superintendent as required by Sec. 50 of the general school law, and without such certificate, under Sec. 52, is not entitled to any portion of the common school or township fund, or other public fund, or to teach any school under the control of any board of directors of any school district in this State, and hence the injunction prayed for should have been made perpetual. We do not entertain this view, but regard Sec. 80 of the same statute as a separate and independent act, so far as the matter in dispute here is concerned, intended to apply in districts containing not less than two thousand inhabitants, and 'in such districts to provide for the management and control of schools by a board of education, with power to examine persons who desire to be employed as teachers, and thus determine who are qualified, and to employ as teachers those they so determine to be qualified; hence these districts are not within the control or operation of the provisions of Secs. 50 and 52. That such is the purpose and effect of Sec. 80 seems evident from the fact that additional duties are thereby imposed and enlarged powers given to the board of education, differing essentially from the duties and powers of directors of other school districts.

Among the duties and powers enumerated in Sec. 80 are these, in the sixth clause: “To examine and employ teachers and fix the amount of their salaries.” The examination herein provided for is as to the qualification of the applicant in respect of ability, competency and character, to take charge of and teach a school in the district, and the board of education and not the county superintendent are to examine and thereby judge and determine whether or not the applicant is qualified. Such is our construction of Sec. 80, and in this we are fortified by the expressions used in the oj inion in The Board of Education v. Arnold, 112 Ill. 11. In that case it appeared the schools of the city of Galesburg were operated under a special act providing for the management and control thereof and the employment of teachers by a board of education, but giving said board no power to examine teachers. In the opinion it is said: “The power of exclusive management and control given to the board by this special act, does not dispense with the necessity for the certificate of the county superintendent, and there is certainly throughout the special act no power directly given to examine or determine the qualifications of teachers;” and in the opinion it is further said, speaking of said Sec. 80, “It provides, in all districts having a population not less than two thousand, for the election of a board of education, and to such board, among other powers, is given the power “ to examine and employ teachers;” but in the special act we are considering there is no such power to examine teachers given to the board. The distinction thus made between the special act spoken of and Sec. 80, and the efficacy of that section to supply the power omitted in the special act, so shown and explained in the opinion, justifies the inference that our Supreme Court would hold with us, that the appellee, board of education, had the power to examine and to determine the question of Wixford’s qualifications as a teacher, and such examination having been made by its committee duly appointed for that purpose, and the adoption by the board of the report of said committee certifying that Wixford was well qualified to fill the position of a teacher, and a contract had been made with him to teach for a definite term, rendered the certificate of the county superintendent of Monroe county unnecessary, and without it Wixford has the right to teach the school where he was so employed and to receive pay for his services.

In our opinion the order and decree of the Circuit Court was right and is affirmed.

Decree affirmed.


author: Phillips, J.

text:
    Fred. Buettner v. The Village of Percy.

      Practice—Appeal—Costs—Pule.

    A county court, upon setting aside an order of dismissal, may require the costs for the terra to be paid ten days before the first day of the next term.
    [Opinion filed June 15, 1889.]
    Appeal from the County Court of Bando! ph County; the Hon. Warreen N. Wilson, Judge, presiding.
    Mr. John Michan, for appellant.
    Mr. A. G. Gordon, for appellee.
   Phillips, J.

The appellant was convicted of the violation of an ordinance of the village of Percy on a trial before a justice of the peace, and appealed the case to the County Court. At the May term, 1888, of that court, for non-compliance with a rule theretofore entered against appellant, the suit was dismissed. On the motion of appellant the order of dismissal was set aside and appel'ant was ordered to pay the costs for the term, ten days before the first day of the next term, and cause continued. At the December term, 1888, of the County Court, the appeal was dismissed for non-compliance with rule “in this, that the said defendant did not pay the costs taxed against him in this cause ten days prior to the first day of this term,” and a procedendo was ordered to issue. From that order of dismissal this appeal is prosecuted. A judgment for costs as made by the order of the May term, payable ten days before the first day of the next term, is more than a judgment to be collected by execution or fee bills, where the time and manner of collection is determined by the writ in the hands of the officer, and the property of defendant liable to execution. That judgment amounted to a rule requiring the costs to be paid ten days before the first day of the next term and was conditioned. The court had the power to make such a rule, and for non-compliance therewith could dismiss the appeal. The judgment is affirmed.

Judgment affirmed.


text:
    William Guebert v. John Zick et al.

      Fraudulent Conveyances—Creditor's Bill—Assignment—Declarations and Admissions.

    Upon a bill to set aside deeds executed at different times, and conveying various interests in the same property to the same grantee, it being alleged that such conveyances were in fraud of creditors, and to subject the real estate in question to the payment of certain judgments, it is held: That the evidence does not justify the assumption that the first conveyance made was tainted with fraud; that the declarations and admissions of the grantor, made to a third person, touching s-.lid sale and conveyance, were not competent to prove the grantee’s knowledge of the grantor's intent, or his participation in any fraudulent purpose on her part; and that a later deed, given by another party in interest, must be looked upon as fraudulent and void as against the judgment in question.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Randolph County; the Hon. William H. Snyder, Judge, presiding.
    Mr. A. G. Gordon, for appellant.
    Messrs. W. Hartzell and F. B. Simpson, for appellees.
   Green, P. J.

Appellees filed their bill in chancery against Sophia, Helena and Rudolph J. Boekhoff, and appellant, to set aside deeds from Helena and Rudolph to appellant, and subject the lands conveyed to the payment of two judgments, one in favor of Zick against Sophia, Helena and Rudolph J. Boekhoff for $3,232.71 and costs, the other in favor of Theda Boekhoff against Sophia and Helena Boekhoff for $2,092 and costs.

The bill alleges the lands were conveyed to defendant Guebert by Helena and Rudolph J. Boekhoff, to hinder, delay or defraud complainants and other creditors, and that Guebert had notice of the fraudulent intent at the time he purchased the lands, and that Sophia Boekhoff made an assignment to him for the pretended benefit of creditors, and it was done in furtherance of said fraudulent design, and was made at the same time said conveyances were executed, and is a part of the same transaction. From the evidence it appears four children of Sophia were entitled in fee to the said premises, subject to her dower and homestead, at the time of the conveyance to Guebert. Helena executed, acknowledged and delivered the deed conveying her interest to Guebert on Saturday, June 27, 1885, and received the consideration of $1,000 the same day. On the next day, Sophia, the mother of Helena and Rudolph J., came to Guebert and requested him to act as assignee. He consented to do so, and she executed a deed of assignment to him, conveying her interest in said premises and all her personal property for the benefit of her creditors, reserving her homestead and right of exemption. Rudolph J. and his brother joining in one deed, on Sunday, J une 28th, conveyed their interest in said premises to Guebert, each receiving $1,000 in the notes of Guebert as and for the purchase price. This deed and the deed of assignment purport to have been executed and acknowledged June 29th and were recorded, together with said deed from Helena, on that day at 6 o’clock a. m. The court decreed that the deed of Rudolph J. Boekhoff and the deed of Helena be set aside, canceled and held for naught, and that said complainants may proceed with the collection of their said judgments, as though said deeds had not been executed by said Rudolph J. and Helena, by levy upon and sale of the lands described in said deeds. We are not satisfied this decree is right or justified by the evidence.

It does not appear Guebert knew, at the time he bought of Helena, and received her deed for the interest she owned, and paid the consideration, that she intended by such sale and conveyance to hinder, delay, or defraud her creditors. Ho sale by Rudolph of any interest to Guebert had then been contemplated, nor had the assignment to him by Sophia then been suggested or proposed; but Helena sought Guebert, importuned him to buy her interest and told him she wanted some cash to pay a person to whom she was indebted, who lived in Belleville, and the declarations and admissions of Helena in July, touching the sale and conveyance of her interest made to F. A. Wind, and testified to by him, were not competent as against Guebert to prove his knowledge of her intent, or his participation in her fraudulent purpose. The evidence was not sufficient to warrant the setting aside of Helena’s deed, or subjecting the interest she conveyed to the payment of complainant’s judgments. As to Rudolph J. Boekhoff the evidence may justify the finding of the fraudulent intent charged, and that Guebert knew of and was a party to the fraudulent purpose when he purchased and took the deed from Rudolph and his brother; but it was error to set aside and cancel this deed entirely. It should have been decreed void only as against the judgment of Zick and subjected the interest of Rudolph in the land conveyed to the payment thereof. For the errors indicated the decree is reversed and the cause remanded. •

Reversed and remanded.


text:
    The Springfield Fire and Marine Insurance Company v. Sarah Newman, for use, etc.

      Practice—Bill of Exceptions.

    The motion for a new trial and the documentary evidence and instructions complained of must be preserved in the bill of exceptions, or error can not be assigned thereon.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Pulaski County; the Hon. Robert W. McCartney, Judge, presiding.
    Messrs. Robarts & Bradley and Thomas Bates, for appellant.
    Messrs. Angus Leek and Crandall, Linegar & Boyd, for appellee.
   Green, P. J.

This suit was brought on a policy of insurance to recover the amount of loss by fire of the property alleged to. have been insured. The cause was tried by a jury who returned a verdict for plaintiff, assessing the damages at $900, and the court entered judgment for the plaintiff for that sum and costs of suit. Defendant thereupon took this appeal.

The appellant presents a bill of exceptions so radically defective by reason of the omission of material matters as to preclude this court from taking cognizance of and passing upon the errors assigned.

The bill of exceptions does not contain the policy or any of the documentary evidence complained of, and does not contain any instructions given or refused, or motion for a new trial on behalf of defendant, and as- these are matters which can be preserved and brought up for review, in this court only by being embodied in a bill of exceptions, we can not consider the rulings of the court thereon which are assigned for error. The judgment must be affirmed. Nason v. Letz, 73 Ill. 371; James v. Dexter et al., 113 Ill. 654 ; Martin et al. v. Foulke et al., 114 Ill. 206.

Judgment affirmed.


author: Reeves, J.

text:
    Susannah V. Graffenreid, Executrix, v. Catharine Kundert.

      Administration—Acceptance by Legatee of Certificate of Deposit—Cash Balance—Guaranty by Executor—Failure of Bank—Executor's Liability —Evidence of Deceased Person at a Former Trial.

    1. Where a legatee has accepted from the executor a certificate of deposit belonging to the assets of the estate, and paid a balance thereon iii cash, upon the failure of the bank before the maturity of the certificate, a recovery may be had from such executor of the balance so paid.
    2. In an action brought to recover such balance this court holds that the transaction in question was made upon the assurance of the executor that he would guarantee its safety; that testimony as to his evidence upon a former trial, he having died in the meantime, was properly admitted; and that dividends paid by the assignee of such bank to the legatee on the certificate in question, belong to the estate of her testator and not to her.
    3. An admission of a deceased witness upon the stand does not require to be proved otherwise than if it had been made elsewhere.
    [Opinion filed June 15, 1889.]

      Appeal from the Circuit Court of Madison County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Metcalfe & Metcalfe and Wise & Davis, for appellant.
    In the testimony of Mrs. Edehnan, witness for appellee, the court permitted the witness to prove what Mr. Graffenreid testified to on a previous trial of a case against him as executor, and receiving the |S00, without requiring her to state previously that she remembered the substance of all he swore to at that time.
    In all the following cases the courts hold that before a witness is competent to prove what a deceased witness swore on a previous trial, he must be able to state “that he remembers the substance of what a deceased witness swore to on a former trial—not the precise words.” Iglehart v. Jernegan, 16 Ill. 513; Bergen v. The People, 17 Ill. 426; Barnett v. The People, 54 Ill. 330; 1 Greenleaf on Ev., Secs. 163 and 168 and notes.
    The same error was made by the court in admitting as a competent witness Timothy Gruaz, to testify in the same way, against our objection, as to what G. affenreid swore, instead of requiring him to state that he could recollect the substance of all he swore to at that time.
    Both these witnesses ought to have been excluded on these authorities.
    “In the negotiation of hill and notes to exempt from liability it is necessary to indorse on the note ‘without recourse.’” Chitty on Bills, p. 353.
    “ An indorsement of a note to ‘ A ’ without recourse, or at his own risk, will not restrain the negotiability of the note, but will simply exclude any responsibility of the indorser on the non-acceptance or non-payment thereof.” Story, Drawn Notes, page 172; Freeman v. Guyer, 13 Ill. 653; Stevenson v. O’Neal et al., 71 Ill. 314.
    The certificate of deposit in this case, in its legal effect under our statute, is a promissory note, and the appellant had a right, as executor, to make said contract of indorsement. The executor or administrator “ may assign a promissory note payable to his intestate.” McConnell v. Hodson, 2 Gilm. 640; Makepeace v. Moore, 5 Gilm. 474; Dwight v. Newell, 15 Ill. 333; Walker v. Craig, 18 Ill. 116, 128; Wooley v. Lyon, 117 Ill. 249; Story, Prom. Notes, Secs. 120-3.
    Messrs. John G. Irwin and Dale & Bradshaw, for appellee.
    We insist that the court erred in rejecting the evidence of appellee. Her evidence was objected to on the ground that she was incompetent under the statute, she being a party in interest and the person against whom her evidence was offered being dead.
    The objection would be well taken if this had been the first trial of the ease, and the parties had not both testified on a former trial. The object of the statute' is to prevent a party in interest from testifying where the opposite party can not be heard by reason of death, or is otherwise incapacitated. On a former trial of the identical subject-matter, both appellee and the deceased, Graffenreid, had testified fully, both on direct and cross-examination. Their evidence had been fully embodied in the record which was before this court. Appellant could have had the full benefit of all that Graffenreid could swear to. Graffenreid having testified fully on a former trial, giving his version of the transaction, and his evidence having been preserved in the record, and he being dead at the time of this trial, and this trial involving the same issues, it was competent for the appellant to prove, at this trial, what deceased swore to on the former trial. The Chicago & E. I. R. R. Co. v. O’Conner, 119 Ill. 586.
    This gave appellant the full benefit of his evidence. She was not deprived of it, and we insist that, under such circumstances, she caii not claim the benefit of the statute. 2 Best on Evidence, Sec. 496 (Morgan’s Ed.); 1 Greenleaf on Evidence, 11th edition, Sec. 165.
   Reeves, J.

Balthaser Schneider died testate in 1884, and by his will left a legacy to appellee of §1,000. Rudolph Graffenreid was appointed the executor of • the will of Schneider. There came into his possession as executor a certificate of deposit issued by the banking house of F. Byhiner & Co., of Highland, to Schneider, for $1,800, dated January 4, 1884, due three years after date with six per cent, interest.

In January, 1885, Graffenreid, as executor of Schneider, made an arrangement with appellee by which he transferred to her this certificate of deposit by indorsing it “ without recourse,” as executor, taking appellee’s receipt for the $1,000 legacy and receiving from her $800 in cash. In April, 1885, the firm of F. Byhiner & Co. failed and made an assignment. This suit was brought by appellee, against Budolph Graffenreid in his lifetime to recover back from him the $800 paid by her to him on the certificate. Originally the suit sought to recover from Graffenreid as executor of Schneider, but as it now stands the recovery is sought from Graffenreid personally, or rather from his estate.

Some of the questions now made on the record before us were decided by this court at its February term, 1887, in this same case. It was then held that the transfer of the certificate of deposit was a nullity, and that appellee took no title to the certificate. Graffenreid v. Kundert, 23 Ill. App. 440.

It was also held that appellee had no claim for the $800 paid by her, against the estate of Schneider; that the transaction between Graffenreid and appellee in no way bound the estate of Schneider, and that Graffenreid was acting in this matter entirely without authority of law as such executor, and consequently the only liability growing out of the transaction attached to Graffenreid personally. As Graffenreid had no right to receive the $800 which he got from appellee, it would seem to follow as a matter of law that appellee should have the right to recover it back.

Without entering into the details of the evidence, we think it sufficiently appears that appellee was induced to take the certificate and pay the $800 upon the assurance of Graffenreid that he would make it good to her.

The error assigned as to the improper admission of testimony is not well taken. It seems to us to have been sufficiently shown that the witness not only remembered what the deceased witness testified to on the point to which inquiry was directed, hut was able to state his evidence on this point quite fully. It was not necessary that she should be able to state that she remembered the substance of all his testimony in the case.

This may be limited to the testimony upon some particular subject about which the deceased witness testified. 1 Green-leaf on Ev., Sec. 165. Furthermore this testimony was proper to prove an admission of Graflienreid. That the admission was made on the witness stand does not require it to he proved otherwise than if it had been made elsewhere.

The proposition of law which the trial court refused to hold was properly refused in view of the former decision of this court. We adhere to the views in that opinion expressed.

The dividends paid to appellee by the assignee of the bank on this certificate belonged to the estate of Schneider, and appellee is responsible to that estate for them. The appellant has no right or interest whatever in them.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    James H. Halliday v. The St. Paul Fire and Marine Insurance Company.

      Fire Insurance—Cancellation—Condition—Notice.

    In an action on a policy of fire insurance, this court holds there can be n» recovery, owing to the carrying of other insurance on the property in question without notice.
    [Opinion filed June 15, 1889.]
    In error to the City Court of East St. Louis, St. Clair County; the Hon. B. H. Canby, Judge, presiding.

      Mr. William P. Bauntz, for plaintiff in error.
    Mr. L. H. Hite, for defendant in error.
   Reeves, J.

This suit was brought to recover a loss by fire under a policy of insurance issued by appellee to appellant. The general issue was pleaded and an agreement made by the parties that either party might introduce at the trial any evidence that would be proper, without regard to the form of the pleading, saving to each party the right to object to the competency of any evidence offered.

The defense was that appellant represented to appellee’s agent that he had surrendered a policy he held on the property proposed to be insured, in the Continental Insurance Company, and on the strength of this assurance, the agent of appellee wrote the policy sued on. It was also claimed that appellant claimed that he held the fee simple title to the premises on which the building insured was situated, and that this was not true. We shall confine our examination of the record to the first point of the defense.

Appellant does not deny that he held a policy on the same property in the Continental company but claims that the Continental company had notified him that it would not carry his insurance any longer and had directed him to send in his policy, which he had done, and that he informed appellee’s agent of these facts when he applied to him for insurance in appellee’s company. He admits that after he had secured the policy sued on, the Continental company returned him his policy in that company. This was some time before the fire. Appellant also admits that he did not notify appellee or.its agent of the fact that his policy in the Continental company had been returned. He retained the Continental policy, and after the fire, made proof of loss under the Continental policy and received from that company $288.44, less a premium note which he owed the company.

It is quite clear that at the time the policy sued on was issued by appellee company, both parties understood that the policy of the Continental company was not in force.

However, before the tire, appellant .uceived back from the Continental company his policy in that company and kept it. It was clearly his duty then, either to have returned the policy to the Continental company and disclaimed any claim under it, or to have notified the agent of appellee and secured from him, if he could, his consent to the retention of the Continental'policy. He could not hold the Continental policy and at the same time enforce the policy sued on, unless he secured the consent of appellee to his carrying of both policies. The terms of the policy sued on expressly forbid it. As the appellant did not return the Continental policy to that company and disclaim any right or benefit under it, but held it without securing the consent of appellee that he might do so, it follows that there can be no recovery on the policy issued by appellee.

In this veiw it wbuld be useless to discuss the other questions raised in the case.

The judgment of the City Courtis affirmed.

Judgment affirmed.


text:
    Alexander B. Moore v. Abram Bruner.

      Principal and Surety—Cosureties—Payment of Judgment—Contribution—Guardian and Ward—Board.

    1. At law, where one of several sureties upon a 'guardianship bond is forced to pay a judgment thereon in full, he may recover from each of his co-sureties a pro rata share of the sum so paid, with interest from time of payment.
    2. The insolvency of one or more of them can not operate to increase the amounts recoverable against such as are financially good.
    3. A judgment can not be proved bythe judge’s minutes and the testimony of the clerk, but by the official records alone.
    [Opinion filed June 15, 1889.]

      Ix error to the County Court of Massac County; the Hon. J. C. Wbllis, Judge, presiding.
    Mr. C. L. V. Mulkey, for plaintiff in error.
    The court below erred in admitting in evidence the judge’s minutes in case of Barnes v. McCammon and Bruner. These minutes were offered as a substitute for the record of the judgment itself in that case, and as such were improper and inadmissible. That they were offered as a substitute for such record, and with the ultimate purpose of establishing the liability of appellant as a co-surety with appellee, clearly appears from the fact that the absence of the record itself was sought to be accounted for by calling to the witness stand Circuit Clerk Curtis, who testified that “the formal record of the judgment in the case of Barnes v. Bruner had not been made up yet.” The minutes of a court are not a record nor any part of a record, but mere memoranda to guide a clerk in making up the record. They have no probative force in a proceeding of this character and should never have been admitted as evidence in the case. McCormick v. Wheeler, Mellick & Co., 36 Ill. 114; Sattler v. The People, 59 Ill. 69.
    Again, assuming for the present purpose that the court below was justified under the evidence in finding Moore to be a co-surety with appellee and the other two sureties on the bond of George W. McCammon, it had no right, in the face of the authorities cited below, to render a judgment against him for more than one-fourth of the amount of their joint indebtedness, or §129.72|- Cliitty on Contracts, Fifth Ed., 584; Bouvier’s Law Dictionary, 308; Bispham’s Prin. Equity, ■206; Parsons on Contracts, 35; Brandt on Suretyship, 340.
    The doctrine is well settled that at law a co-surety is compellable only to contribute his pro rata proportion in the discharge of an obligation of this character; and this proportion •is based on the entire number of sureties originally bound, and without reference to the fact that one or more of them may have subsequently died or become insolvent. In equity the rule is different—the burden of the debt being divided among the solvent sureties. A county court is not a court of equity. .Nor has it any power, except perhaps in certain special cases, to adjust the strictly and purely equitable rights of parties who litigate before it.
    Messrs. Courtney & Helm, for defendant in error.
   Green, P. J.

It is averred in the declaration in this case that plaintiff, Bruner, and Moore, the defendant, together with Me Gammon and Gray, became sureties on the bond of the guardiati of Barnes; that the guardian died owing his ward, and afterward judgment was rendered in Massac Probate Court against the estate of the guardian in favor of the ward lor §500, but the estate being insolvent no part of this judgment was paid; that afterward suit was brought in the Massac Circuit Court upon the bond against Bruner and McCamtnon, and judgment was there recovered against them for §500 and costs; that McCarnmon is insolvent and Gray died insolvent; that plaintiff Bruner discharged said judgment in full, wherefore defendant became liable to pay him $269.45 by way of contribution. A count for money paid out by plaintiff for defendant is added. The cause was tried by the court. Judgment was rendered in favor of the plaintiff for $260 and costs, to reverse which defendant sued out this writ of error.

The cause of action set out in this declaration, is the payment made by Bruner in satisfaction of the judgment recovered against himself and McCarnmon as sureties upon said guardian’s bond, one-half of which amount so paid, instead of one-fourth, Bruner insists is the proportion plaintiff in error as a co-suréty is legally liable to contribute, because of the insolvency of the two other co-sureties, McCarnmon and Gray. This was the view of the trial court and in accordance therewith the judgment against plaintiff in error was rendered. The court erred in so holding. At law the amount of damages which plaintiff was entitled to recover from defendant as a co-surety was one-fourth of the whole debt paid, with interest from the time of payment. There were four sureties, each of whom, as between themselves, became liable at law to contribute an aliquot portion of tbe sum paid by Bruner, and this aliquot portion is to be ascertained upon the basis of the number of sureties, without regard to their solvency. Such we understand to be the law in this State.

It is said in the opinion in Sloo v. Pool, 15 Ill. 48, Sureties are individually liable to the creditor, but one isas much bound to discharge the debt as another. If the creditor endeavors to enforce payment from them, it is, as between themselves, the duty of each to pay an aliquot portion of the debt. If that is not done, and one is compelled to pay the whole, he is entitled to contribution from the others in the same proportion. The law implies an agreement between them when they become responsible to the creditor, that if one shall be compelled to pay the debt the others will contribute so as to make the burden equal. If one pays the whole debt he has a cause of action against the others to recover their just proportion, as so much money paid to their use. His right to contribution is complete as soon as he pays the debt, and he may at once call on his co-sureties to bear the common burden with him. At law he can not sue two or more jointly, but he must sue each separately, and he can only recover from one an aliquot portion of the debt, tó be ascertained by the number of sureties, without regard to their solvency. In equity, if one is insolvent the loss is apportioned among the others.” In 1 Parsons on Cont., 35, the rule is stated thus: “At law a surety can recover from his co-surety only that co-surety’s aliquot part, calculated upon the whole number, without reference to the insolvency of either of the co-sureties, but in equity it is otherwise.” We have examined the case of Golden v. Brand, 75 Ill. 148, cited on behalf of appellee, and do not understand the court either did, or intended to, abrogate or modify the rule announced in Sloo v. Pool, supra.

The trial court erred also in admitting, over the objection of defendant, the minutes made by the judge and the testimony of the clerk, as competent evidence to establish the material averment that a judgment had been rendered against Brnner and McCammon. A judgment must be proved by the record itself and not by the judge’s minutes made upon his docket for his own convenience,and as a direction to the c'crfc in making up the record. These minutes, supplemented by the oral testimony of the clerk, can not be accepted as a substitute for the official records of the court, kept by an officer appointed by the law for that purpose and importing absolute verity. Freeman on Judg’ts, Chap. 2, Sec. 52; McCormick v. Wheeler, Mellick & Co., 36 Ill. 115; Martin v. Barnhardt, 39 Ill. 2; Church v. English, 81 Ill. 442.

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

Reversed am,d remanded.


author: Geeeit, P. J.

text:
    John Thomason v. John W. Clark.

      Negotiable Instruments—Note—Principal and Surety—Indorsement of Payment by Joint Obligoi—Effect of—Contribution—Evidence.

    1. An objection first made in this court to evidence admitted by the trial court, comes too late.
    2. In an action brought to recover from one of two sureties upon a promissory note a balance claimed to be due, this court holds that the indorsement thereon of the sum paid by one of them did not release the oilier as to such balance, and that the same was to be considered as an agreement not to bring suit against the party having so paid.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of White County; the Hon. C. S. Conger, Judge, presiding.
    Messrs. Organ & Organ, for appellant.
    When one joint maker is released by written agreement all other joint makers are released, unless there is a reservation on the face of the instrument of release. Parmelee v. Lawrence, 44 Ill. 405; Rice v. Webster, 18 Ill. 331; Benjamin v. McConnell, 4 Gilm. 538; 2 Daniels on Negotiable Instruments, 2d Edition, Secs. 1290-1310; Tuckerman et al. v. Newhall, 17 Mass. 581; Wiggins v. Tudor, 40 Mass. 434.
    In this case the release was written on the back of the note and signed by the holder of the note and the payment made to him, the receipt on its face releasing all the claim the holder had in the note by its words: “Eighty-five dollars and 17-100 in full of my part on this note. John W. Clark;” and there is no reservation in the release.
    It is true that the release here is in the form of a receipt, but it can not be contended that this writing did not have the effect to release Dr. Stewart. In fact it was the only effect it could have, as the other payments were simply written on the back of the note, while this one was dated, written out in full and signed by the holder, and all that can be said is that Clark did not mean to release Thomason; if so they must get his intention on that point from the instrument itself and not aliunde.

    Mr. N. Holderby, for appellee.
    It is claimed by counsel for appellant that the receipt on the back of the note is a release of Stewart, one of the joint obligors, and therefore releases Thomason, and to support this proposition counsel cites several authorities, the principal ones being Rice v. Webster, 18 Ill. 331; Benjamin v. McCormick, 4 Gilm. 536; also Pannelee v. Lawrence, 44 Ill. 405.
    Now, we maintain that the case cited in 44 Ill. 405, holds a different doctrine, and that the weight of more modern decisions is against the doctrine held in the first two cases cited, a still later decision upon this point being Mueller v. Dobschuetz, 89 Ill. 176, where the rule is plainly set forth that wherejtlie release of one of several obligors shows upon its face and in connection with the surrounding circumstances that it was the intention of the parties not to release the co-obligors, such intention, as in the ease of other written contracts, shall be carried out, and to that end the instrument shall be construed as a covenant not to sue.
   Geeeit, P. J.

This suit was commenced before a justice, from whose judgment an appeal was taken to the Circuit Court. A trial there by the court without a jury resulted in a finding and judgment for plaintiff for $94.60 and costs, to reverse which judgment the defendant took this appeal.

The suit was brought to recover of appellant a balance due upon a joint and several promissory note. The note was payable to Clark, executed by Hargrave, Thomason and Stewart, the two last named being sureties ; was for $153, dated January 4, 1881, payable one year after date, with eight per cent interest; interest in full was paid to January 4, 1886, and was so indorsed on the note, and upon the back of the same this indorsement also appears: “ Rec’d E. L. Stewart, June 3d, 1887, eighty-five and 17-100 dollars, in full of my part on this note. John W. Clark.” The meaning and effect of this indorsement is one of the disputed questions submitted; and appellant also insists the Circuit Court erred in admitting the conversations between the parties in evidence. This last objection is urged for the first time in this court and comes too late to be considered by us. At the trial no objection was made to the admission of testimony, or exception taken to any ruling of the court with reference thereto. From this evidence it appears appellee spoke to the sureties, Stewart and Thomason, in the fall of 1886 or spring of 1887,.about the collection of this note. It was then known Hargrave, the principal, was insolvent, and the sureties would have the note to pay.

In this conversation it was agreed between the sureties thát each should pay the one-half of the note and interest, and the one paying his half first should be released from further liability on the note. To this agreement Clark, the appellee, assented, and afterward, on June 3, 1887, Stewart paid the sum indorsed of that date as a credit on the note. This written indorsement is claimed, on behalf of appellant, to be a release of Stewart, the legal effect of which was to absolve. appellant from further liability, and that such legal effect was not changed or affected by the verbal agreement and understanding between the parties in the conversation mentioned. Some support to this contention is given in Benjamin v. McConnell, 4 Gilm. 536 ; Hice v. Webster, 18 Ill. 331, and in the elementary treatise and Massachusetts cases cited; but in Parmelee v. Lawrence, 44 Ill. 405, our Supreme Court say : “ The weight of modern authorities is against these cases, and in favor of the more reasonable rule that where the release of one of several obligors shows upon its face and in connection with the surrounding circumstances that it was the intention of the parties not to release the co-obligors, such intention, as in the case of other written contracts, shall be carried out, and to that' end the instrument shall be construed as a covenant not to sue.” The instrument so construed in that case was a release of one joint debtor under seal, reserving the rights of the creditor against the co-obligors, and in 1 Parsons on Contracts, 24, cited with approval in the opinion, it is said: “But though the word ‘release’ be used even under seal, yet if the parties (the instrument being considered as a whole, and. in connection with all the circumstances of the case and the relation of the parties) can not reasonably be supposed to have intended a release, it will be construed as only an agreement not to charge the person or party to whom the release is given, and will not be given the effect of a technical release ; for a general covenant not to sue one of many who are jointly indebted, does not discharge one who is a joint debtor to the covenantor, nor in any way affect his obligation.”

The doctrine so announced in Parmelee v. Lawrence, supra, is approved in Moore v. Stanwood, 98 Ill. 605, where it is held, “the technical rule by which a release of one joint debtor is made to operate as a discharge of all, is not to be extended to cases ‘not within the reason and equity of the rule.” In the light of these authorities and the facts disclosed by this record, we are of the opinion the receipt indorsed on the note is to be construed as an agreement not to sue Stewart, leaving the liability of appellant unimpaired. The latter agreed to this, promised to pay his proportionate) share, and-, •if Clark is to be believed, fixed the time he would pay it. This he would have been obliged to contribute liad his co-surety paid the whole. By his agreement he invited Clark to accept and receive Stewart’s shave, promising to pay his own, and ought not to have been permitted to avoid his liability by such construction of .the indorsement as would defeat the real intent of all the parties in making the agreement. We discover no error requiring the reversal of the judgment of the Circuit Cburt and the judgment is affirmed.

Judgment affirmed.


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    Louis Nichols et al. v. John Wallace. Same v. H. Seiter & Company.

      Fraudulent Conveyances—Secret Trust—Husband and Wife—Agency —Evidence—Declarations of Grantor.

    1. In the absence of a design to hinder or delay his creditors, a man in debt may, without consideration, voluntarily convey property to his wife for the purpose of creating a separate estate in her, his creditors being protected by the ^retention on his part of property enough to satisfy their demands.
    2. In case of such conveyance the husband may properly manage the property so conveyed, as the agent of the wife.
    3. Declarations made by the husband in the absence of the wife and without her admission of their truth are inadmissible to affect her title to properly so conveyed.
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of St. Clair County; the Hon. William H. Snyder, Judge, .presiding.

      Appellees, as judgment creditors of Louis Nichols, filed bills in the Circuit Court of St. Clair County to set aside and cancel a deed from Nichols to his wife, conveying about one hundred and seventy-eight acres -of land in St. Clair county, and to subject said land to the payment of judgments recovered against Nichols. The two causes were consolidated and tried as one. In each of said bills, after the usual allegations of the recovery of judgment and issuing of execution, failure to collect, etc., substantially the same grounds are alleged for setting aside and canceling said deed, viz.: that on November 17, 1885, Nichols made a pretended conveyance in fee of the lands described, to 1ns wife, Mary W. Nichols, for a pretended consideration of nine thousand dollars; that said conveyance was not real, but was a mere sham, aud no consideration was paid ; that said conveyance was not made in good faith, but that said Louis Nichols, since the conveyance, retained the possession of and exercised acts of ownership over said land, and actually owns the same, and said land is held in trust by Mary W. for Louis, and for his use and benefit, and said pretended deed is in the way of a levy of said executions on the land. It is not alleged Nichols was insolvent at the time he executed the deed to his wife. The court, by its decree, found said deed was made without consideration and with fraudulent intent; that the lands are actually owned by said Louis, and are held by said Mary in trust for him and for his use and benefit; that the judgment of H. Seiter & Go. and the judgment of John Wallace became, at the times they were entered, and still remain, liens on said lands, and are unpaid ; orders and decrees that said deed be set aside, vacated, held for naught, and null and void as against said judgments and costs; that complainants be authorized to issue other executions upon their respective judgments, and that the sheriff of said county proceed to levy upon and sell lands for the payment and satisfaction of the judgments, interest and costs, and defendant, Louis Nichols, pay the costs of this proceeding, and the same be a lien on said lands, and that complainants have execution therefor. From this decree defendants, Louis and Mary W. Nichols, appealed, aud bring the record up for review in this court, and ask that the decree be reversed.
    Messrs. Koerner & Horner, for appellants.
    Where there are no creditors whose rights may he put in jeopardy, it is competent for a husband to create a separate estate for his wife out of his own property, and no one can impeach the transaction, or inquire into its propriety, unless he was a creditor of the husband at the time. Yazel v. Palmer, 81 Ill. 82.
    It is competent for a party to create a separate estate for his wife out of his own property, if there are no creditors of the husband at the time, whose rights will be affected thereby, or even if there are creditors, if the husband retains a sufficient amount to satisfy their claims. Bridgford et al. v. Riddell et al., 55 Ill. 261; Moritz v. Hoffman et al., 35 Ill. 553.
    Ho creditor without any lien has any right to complain that his debtor-is giving away his property to his wife or children, unless such creditor can establish the fact that the debtor has not retained enough-to satisfy existing debts.
    Such grantor must make himself insolvent by such gifts or conveyances, and to impeach them'fraud must be alleged and proved.
    In the absence of an allegation in a. creditor’s bill to reach property given by a husband to his wife, that he was insolvent at the time, and that such gift rendered him unable to meet all his legal obligations, or even that he owed any other persons, and of proof to sustain the same, it can not be presumed that any other debts of the husband existed. Bittinger v. Kasten et al., 111 Ill. 260.
    When existing creditors are not injured a husband may convey land to wife. Lincoln v. McLaughlin, 74 Ill. 11; Patrick v. Patrick, 77 Ill. 555.
    Creditor’s bill to set aside alleged fraudulent conveyance from debtor to his wife must contain averment that creditor was debtor’s creditor at time of conveyance and that debtor was then insolvent, or it is fatally defective. Uhre v. Melum, 17 Ill. App. 182; Koster et al. v. Hiller, 4 Ill. App. 21.

      Husband may convey to wife, if be does not impair claims of existing creditors. More v. Page, Ill U. S. 117.
    Husband may act as agent for his wife. Cubberly v. Scott et al., 98 Ill. 38; Bennett et al. v. Stout et al., 98 Ill. 47; Bougard v. Core, 82 Ill. 19.
    Messrs. Dill & Schaefer and Marshall W. Weir, for appellees.
    In Emerson v. Bemis, 69 Ill. 540, the court says:
    “The general rule is, that a voluntary conveyance as against pre-existing creditors is fraudulent in law, and void.
    “Mr. Justice Story, after thus stating the general rule, says the doctrine requires, or at least may admit of some qualification in relation to existing creditors, ‘where the circumstances of the indebtment and the conveyance repel any possible imputation of fraud, as where the conveyance is of a small property by a person of great wealth, and his debts bear a very small proportion to his actual means.’ 1 Story Eq. Ju., Sec. 355.
    “In Hinds’ Lessee v. Longworth, 11 Wheat. 199, it was said the mere fact of being in debt to a small amount would not make the deed fraudulent, if it could be shown that the grantor was in prosperous circumstances and unembarrassed, and that the gift to the child was a reasonable provision according to his state and condition in life, and leaving enough for the payment of the débts of the grantor.
    “In Salmon v. Bennett, 1 Conn. 525, Chief Justice Swift in delivering the opinion, says: ‘Where there is no actual
    fraudulent intent, and a voluntary conveyance is made to a child in consideration of love and affection, if the grantor is in prosperous circumstances, unembarrassed and not considerably indebted, and the gift is a reasonable provision for the child according to his state and condition in life, comprehending but a small portion of his estate, leaving ample funds unincumbered for the payment of the grantor’s debts, then such conveyance will be valid.’
    “In discussing this subject in 2 Bland, 33, Kipp v. Hanna, the doctrine is thus laid down: The true rule by which the fraudulency or fairness of a voluntary conveyance is to be ascertained in this. respect, is founded on a 'comparative indebtedness; or, in other words, on the pecuniary ability of the grantor, .at that time, to withdraw the amount of the donation from his estate, without the least' hazard'to his creditors, or many material degree lessening their then prospects of payment; and see Williams v. Banks, 11 Md. 198; Potter v. McDowell, 32 Mo. 369.” In Bittinger v. Kasten, 111 Ill. 265-6, this rule is quoted and approved by the court.
   Green, P. J.

The bills of complaint in this record do not charge that Nichols was insolvent at the time he made the conveyance to his wife, but present as grounds for setting aside the deed and granting the relief prayed for, that the wife holds the property in secret trust for the husband, and the conveyance was made to hinder and delay his creditors in the collection of their claims against him. A man in prosperous circumstances, although in debt, may, without consideration and voluntarily, convey property to his wife for the sole purpose of creating a separate estate in her for her support and maintenance. To maintain such conveyance it must be made in good faith and for the purpose indicated, and without design or intent on the part of the grantor to hinder or delay his creditors, and he must, at the time of conveying,, retain in his possession property sufficient to discharge all his debts then existing. Such is the law, briefly stated, applicable in this case and announced in numerous cases by our Supreme Court. Moritz v. Hoffman, 35 Ill. 553; Bridgford v. Riddell, 55 Ill. 261; Bittinger v. Kasten, 111 Ill. 260,.and cases there cited. In the opinion in Bridgford v. Riddell it is said> ‘‘It is not doubted that it is competent for the husband to create a separate estate for his wife out of his own property, if there are no creditors of the husband at the time whose rights will be put in jeopardy, and even if there.are creditors, < if the husband retains a sufficient amount to liquidate their claims, it is still lawful. No one can impeach the transaction or inquire into its propriety, unless he was a creditor of the husband at the time and was thereby injured. . It has never been held to our knowledge that a subsequent creditor can inquire into the fairness of the transaction, even if the conveyances to the wife be regarded as voluntary conveyances without actual consideration, for the so7e purpose of creating a separate estate in the wife. It seems to us that it would be inequitable to hold that a man in his prosperous days could not create a-separate estate for the wife, which should be for her maintenance in case disaster should overtake him in his business transactions in later life; and that the estate thus created for the wife would not be beyond the reach of his subsequent creditors. The law not only sanctions such a course, but in many instances it is nothing more than simple justice to the wife.”

Counsel for appellees do not contend the law is not as above stated, but insist the evidence establishes the truth of the allegations that Nichols conveyed the lands to be held by his wife in secret trust for his benefit, and with intent to hinder and delay his creditors. We do not concur with counsel in this, but after a careful examination of the record are led to the conclusion that the conveyance was made in good faith for the purpose of creating an estate in the wife for her benefit, and without intent or purpose to hinder or delay the creditors of Nichols in the collection of their claims. Direc - ing our attention to his financial condition at the time he executed this deed (and it is the intent and purpose at this time entertained by Nichols we are called upon to determine) we find he then owed H. Seiter & Co. nothing; he owed the claim of Wallace, amounting to §600, and interest from May 6, 1885, due in six months, and at least eight days before the deed to Mary W. Nichols was executed ; and he owed some other debts, small in amount, all of which wére paid before the filing of said bills. At the time of the conveyance lie owned three farms besides the one conveyed, and also an interest in other real estate. There were mortgages then upon the farms but we are satisfied from the evidence that the property retained by Nichols at the timehe conveyed the land in controversy to his wife, was worth, over and above all incumbrances, several thousand dollars, and was not only ample to satisfy all claims against him then existing, but greatly in excess of their aggregate amount. The conveyance was made directly to his wife and the deed recorded on the day it was executed. No creditor was then pressing him, and he and his wife both testify the conveyance was made in pursuance of the promise of Nichols to deed her this land, made at the time of their marriage, and thus it would seem no sudden emergency or sinister purpose prompted'the conveyance; and ever since it was made, she has received all the rents and profits and paid all taxes on the lands conveyed; True, her husband acted as her agent in looking after and managing the farm, and collected the rents, and for two )rears after the conveyance' the grain dea’ers credited him, and sometimes him and the tenant, for the grain delivered from the. land, but this was done without direction from her, or her husband, and she received the money paid Nichols for the grain so delivered. It was natural and proper for him to look after and manage the business for his wife, and she might lawfully permit or employ him to so act as her agent. Oubberly v. Scott, 98 Ill. 38 ; Bennett v. Stout, 98 Ill. 47.

Counsel for appellees invite our attention to the testimony of Tipton, against whom, .jointly with Nichols, H. Seiter & Co. recovered their judgment. This witness testified Nichols told him after said judgment was obtained, “that he had conveyed that farm to his wife for the purpose of having a living out of it; that he would retain it for a living; ” that in reply to the remark of witness, “ Why then did you deed her the place ?” N ichols said, “ I have got to have a living for myself and the children, and for that reason I deeded the property this way.” This testimony is contradicted by Nichols, but aside from that ought not be considered as against the wife. If it is true he made such declarations, she was not present, nor did she admit they were true, and as is said in the case of Bennett v. Stout, supra, “it would violate all rules of evidence to permit his declarations to defeat the title of his grantee.”

We have examined the cases cited on behalf of appellees, and under the facts disclosed by this record find nothing therein to incline ns to a different view of this case than that we have expressed.

We think the decree was not warranted by the evidence and the law applicable to the facts proven, and the same is reversed and the cause remanded.

Reversed and remanded.


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    Samuel G. Telford v. Julia E. Telford.

      Negotiable Instruments—Note—Principal and Surety -Notice to Sue— Evidence.

    In an action brought upon a promissory note, it being contended by the surety thereon that after its maturity he notified the payee to put the same in suit, and that her failure to do so within a reasonable time released him from liability, the evidence being conflicting, this court declines to interfere with verdict for plaintiff,
    [Opinion filed June 15, 1889.]
    Appeal from the Circuit Court of Marion County; the Hon. William H. Snyder, Judge, presiding.
    Messrs. W. & E. L. Stoker, for appellant.
    Messrs. Casey & Dwight, for appellee.
   Reeves, J.

This suit was brought by appellee against W. H. Telford, James H. Gallagher, Eben Ashton and Samuel G. Telford, to recover the amount. due on a promissory note made by the defendants, payable to appellee. Only W. H. Telford and Samuel G. Telford wore served with process, and the case progressed to judgment against the defendants served. Samuel G. Telford prosecutes this appeal He alone filed pleas.

There were two special pleas, the first alleging that Samuel Gr. Telford and the other defendants, except W. H. Tel-ford, signed the note sued on as security for W. H. Telford, and with notice of this fact appellee, after the maturity of the note and without the knowledge or consent of Samuel Gf. Telford, extended the time of payment to W. H. Telfoid upon a consideration paid to her by him.

The second special plea sets np the fact that Samuel G. was security for William H., and that after the note matured, he, Samuel G., did notify appellee in writing forthwith to put the note in suit, which she failed to do for a long time thereafter, by means whereof Samuel G. was released from liability as such security.

To sustain the first special plea there was no evidence. Upon the issue raised by the second special plea there was a very sharp conflict in the testimony. The testimony of the several witnesses could not be reconciled. The jury who tried the issue of fact were driven to the necessity of believing the witnesses on one side and disbelieving the witnesses on the other, or fail in making a verdict. They gave credence to appellee and her witness, and discredited appellant and his witnesses, and found a verdict for appellee.

It is specially'the province of a jury in case of such conflict in the testimony, to decide what credence they will give the witnesses who directly contradict each other, and say which they will believe and which disbelieve. They have a much better opportunity to measure the credence to be given the witnesses than an appellate court. They have the witnesses before them, can scan closely their manner of testifying, observe the candor of the several witnesses, and from all the surroundings of the case as it unfolds before them, reach a much more satisfactory conclusion as to where the truth lies, than one who merely reads what is written down, as the words used by the witnesses in giving their testimony.

We are not prepared to say that the jury were not correct in their finding in this case, much less that the verdict was so manifestly against the weight of the evidence that it should be set aside. The judgment of the Circuit Court is affirmed.

Judginent affirmed.