text:
    George A. Gindele et al. v. John Corrigan.

      Water Crafts — Statute—■Collision—Ownership of Canal Boat — Jitrisdiction — Admiralty.
    1. A proceeding under the “ Water Craft Act,” though in many of its features like a proceeding in rent in admiralty, is not within the exclusive jurisdiction of the Federal courts, the remedy being one which a common law court is competent to give, and the result reached being a judgment in personam.

    2. In the case presented, the jury were warranted in finding the appellee to have been the owner of a canal boat, which was sunk in a collision.
    [Opinion filed December 13, 1888.]
    Appeal from the Circuit Court of Will County; the Hon. Doebanoe Dibell, Judge, presiding.
    Messrs. C. E. Kbemeb and C. W. Bbown, for appellants.
    Messrs. Duncan, O’Conob & Gilbebt, and Haley & O’Donnell, for appellee.
   Upton, J.

This is a proceeding instituted by John Corrigan, appellee, against the steam canal boat, “Munnemaclier,” pursuant to Chapter 12 of the Revised Statutes of Illinois, commonly known as the “Water Craft Act.”

The cause of action alleged in the petition arose from a collision of the steam canal boat “ Hunnemacher,” of above fifty tons burden, owned by the Illinois and Michigan Canal Company, a corporation organized and doing business in the State of Illinois under and in pursuance of the laws thereof, of which corporation the said George A. Gindele is an officer, manager of its business, and a shareholder therein, and the canal boat “Midnight,” then belonging to John Corrigan, the appellee, and being of above live tons burden, the steam canal boat “Hunnemacher” and the canal boat “Midnight” being at the time of such collision domestic vessels and water craft, and both engaged in commerce wholly within the borders of the State of Illinois, and the home port of both being within this State, and enrolled and licensed pursuant to law.

In the night time of the 8th of May, 1886, the cannl boat “ Midnight,” in charge of William Peck, as master, being towed by mules, was on its way from the city of Chicago to Peru, in La Salle county, on the waters of the Illinois and Michigan canal, and within the State of Illinois, laden with a cargo of hard coal screenings. Hear Lament, in Will county, in the State of Illinois, she was overtaken “en route” and run into by the steam canal boat “Hunnomacher,” broken open in keel and side, sunk, and rendered a total loss, without fault on the part of the canal boat “ Midnight,” her officers or crew, and through the negligence and want of care of the officers and persons in charge of the steam canal boat “Hunnemaclier,” as is alleged in the petition.

On the 14th day of May, 1886, Corrigan, the ap; ellee, sued out of the Circuit Court of Will county a writ of attachment under the provisions of the “Water Craft Act,” against the steam canal boat “ Hnnncmaclier,” alleging in his petition that the owners of the steam canal boat were unknown.

The wi'it was issued on that day pursuant to the provisions of such act, and the boat was seized under the writ by the sheriff of Will county. Five or six days thereafter, John A. Gindele, claiming an interest as part owner in the steam canal boat, bonded and released the boat from snch seizure under Secs. 15 and 17 of said Chap. 12, R. S. (being the Water Craft Act), his sureties being John Angus and George R. Adams the appellants, and thereupon a writ of restitution was issued^ and returned by the sheriff of Will county, executed pursuant to the 17th section of the aforementioned act, and the said steam canal boat was thereupon discharged and released from the lien of such attachment, as provided in the attachment act.

Some time after such restitution, Geoj'ge A. Gindele, one of the appellants, entered his appearance in snch attachment proceedings, filed his answer thereto, claiming to be interested in the steam canal boat as part owner thereof, and as principal in the bond given and filed in that court to obtain the release of the b'oat from such attachment seizure, therein admitting the collision at the time, place, and with the results charged in such petition for the attachment, but denying that it was caused by the negligence or want of care or skill on the part of those in charge of the steam canal boat “ Hunnemacher,” or that the canal boat or her owners were liable therefor.

This answer was subsequently withdrawn, by leave of court, and appellants were allowed to enter a motion to dismiss the proceedings for want of jurisdiction in the trial court; and thereupon, on leave obtained, Corrigan, appellee, amended his petition, which, being re-tiled, the motion to dismiss for want of jurisdiction was again interposed, which motion being overruled, a replication was filed to the answer, and the cause submitted to a jury for trial, who, after hearing the evidence, returned a verdict for the appellee for $1,000. Amotion was made for a new trial and overruled. Judgment was entered on the verdict, and the case is brought to this court on appeal, and errors are assigned upon the record, by which is presented for our determination two questions:

First. Had the trial court jurisdiction of the subject-matter involved in the proceeding?

Second. Were the jury justified from the facts and circumstances in evidence before the trial court, in finding the appellee, Corrigan, the owner of the canal boat “ Midnight ? ”

We 'will consider these questions in the inverse order of their statement, and examine the second proposition first.

It will be apparent, on a careful examination of this record, that the trial in the court below proceeded upon the theory, conceded by both appellant and appellee, that the.canal boat “ Midnight ” was in fact owned by appellee, John Corrigan. No questions specifically upon that point seem to have been made upon the trial.

George A. Gindele, one of the appellants who was sworn upon the tidal, in speaking of the trade or business in which the “Midnight” was engaged at the time of its loss, speaks of it as “ Corrigan’s boat.” He further states “ that he requested Corrigan to remove the sunken wreck of the ‘Midnight’ after the collision, but that Corrigan refused and abandoned her.”

John Corrigan, appellee, in his testimony swears, “that less than one year before the collision, he caused the ‘Midnight’ to be repaired, or put repairs on her, to the amount of $520 and more; that he kept her in good repair all the time by putting repairs upon her from time to time, the season of her loss, and that she was in good repair at the time she was sunk by the collision.” He says, “She was worth $1,000 and more, at the time of the collision, and I would not have taken $1,000 for her.” He also says, “William Peck had charge of the boat.” He further states the rates he was receiving per ton for freight carried on the boat at the time of her loss by the collision, and the amount of freight it would have earned for him on the voyage in which her loss occurred, but for such collision, after paying her tolls and the wages of her men.

It seems to us that appellants’ instructions to the jury, and the special findings submitted by them to the jury, manifestly assume the ownership of the canal boat “ Midnight ” to have been in the appellee, and wTe think under all the facts and circumstances in evidence in the case, the jury were fully warranted in so finding the appellee to have been the owner at the time, of the collision, and that the court below committed no error in rendering judgment on the verdict, so far as that question is involved.

The important question involved in this case, however, is, had the court below jurisdiction of the subject-matter herein involved ?

It must be conceded that the proceedings in the Circuit Court were in strict conformity to, and within the provisions of, the statute entitled, “Attachment of Water Craft,” Chap. 12, R. S. 1874, both in form and substance.

Eo challenge is made, in the discussion before us, of improper rulings of the court upon.the trial, except as before stated, either as to the evidence, or the giving of or refusal of instructions to the jury.

It is strenuously insisted, however, by the learned counsel for'the appellants, that the collision complained of in the case at bar, and the consequent loss of the canal boat “ Midnight,” is a maritime tort, and consequently is within the original and exclusive jurisdiction of a court of admiralty by virtue of the act of Congress of 1789, and that, wherein the District Courts of the United States have original cognizance of admiralty causes by virtue of that act, such cognizance is exclusive, and that no other court, State or Eational, can exercise it, with the exception always of such concurrent remedies as are given by the common law. To maintain that position our attention is directed to several cases determined in the Federal courts wherein this question seems to have been discussed, and. the contention of appellants’ counsel sustained, either in whole or part, but which, in the view we take of the case, we do not feel called upon carefully to consider or discuss. Whatever opinion we might entertain upon that contention, if it could be regarded as an open question in this State, and we were permitted its examination and determination, regardless of the judgment and authoritative decisions of the court of last resort in this State, is as unnecessary as it would be useless to express.

We shall content ourselves, therefore, with a brief examination of a few of the several decisions of the Supreme Court of this State upon the question; further investigation could serve no useful purpose.

We may premise, that a tort is defined to be an injury or wrong committed with or without force to the person or the property of another, real or personal, in possession or remainder, and that such injury may arise by either the non-feasances malfeasance or misfeasance of the wrong-doer.

In the case of Loy v. Steamboat Aubury, 28 Ill. 412, which was an action of trespass brought in the La Salle Circuit Court against the steamboat for an assault and battery committed by the mate of the steamboat upon the plaintiff while he was a passenger upon the boat, which action was brought and prosecuted under and pursuant to the act of February 16, 1857, the title of which was to amend Chap. 102, R. S., entitled “Steamboats,” and known as “The Water Craft Act,” and was substantially the same as the one now in force, so far as the question now being considered is involved. In that ease was presented, says Judge Breese writing for the court, this question: Can an action of trespass he maintained against a steamboat for an assault and battery committed by the mate of a boat upon the person of a passenger on board, while such boat is navigating the rivers within or bordering upon this State ?

After a careful examination that court held that it could be maintained under the “Water Craft Act,” then in force and before citefi, and directed the entry of judgment for the plaintiff in the Circuit Court, citing in support of that opinion, Steamboat Champion v. Jansen, 16 Ohio, 91; Canalboat Huron v. Simmons, 11 Ohio, 458.

The predicates of thé case in 28 Ill., supra, and those cited therein from Ohio, were clearly maritime torts and the proceedings were instituted and prosecuted under and in pursuance of the enactments of the Legislature directly against the vessel, as in the case at bar.

We see no reasonable distinction in those eases from the one before ns, upon the question of State jurisdiction of maritime torts/ indeed it seems to us that, if distinction there' can be, it is in favor of the appellee, for in the case at bar the personal bond of the appellant was substituted for the boat, which was released and discharged from the seizure when bonded, and thereafter the case proceeded to final judgment as a proceeding im,personam, in pursuance of the provisions of the “Water Craft Act,” the lien created by.the statute upon the boat being discharged, by the voluntary act of appellants, and the bond of the appellants substituted therefor.

In Johnson v. The Chicago and Pacific Elevator Co., 119 U. S. 388, that court used the following language: “Liens under State statutes, in suits in personam, are of every-day occurrence, and may extend to liens on vessels when the proceedings to enforce them do not amount to admiralty proceedings m rem, or otherwise conflict with the Constitution of the United States. There is no more valid objection to the attachment proceedings to enforce the lien in a suit in personam by holding the vessel by mesne process, to be subjected to execution on the personal judgment when recovered, than there is in subjecting her to seizure on execution. Both are incidents of a common law remedy which a court of common law is competent to give.”

The doctrine here announced lends force to the argument of the appellee’s counsel, that the mere fact that the water craft attachment act authorizes the seizure of a vessel by attachment on mesne process, and that such attachment was for a maritime tort, does not alone oust the State courts of jurisdiction, so long as the remedy adopted is one competent at common law, and the result reached is a judgment in personam.

It could not be successfully maintained that appellee might not have brought his common law action, in trespass or case, against the owner of the steam canal boat “ Uunnemacher,” and have recovered a judgment against such owner, and seized the boat upon execution in satisfaction of such judgment.

By the 21st section of the “Water Graft Act” it is provided that when the vessel seized upon mesne process issued on the petition and bond filed, is released by the bond of the owner of the vessel, or person interested therein, being filed in the court wherein such proceedings are pending, the bond stands by substitution in the place of the vessel. The bondsmen are before the court by their voluntary act, and the only judgment which can be rendered is, and must be,. i/n personam.

This section also expressly provides that all proceedings subsequent to the giving the bond shall be the same as is now provided by law in actions in gpersonmn in courts of record in this State. In The Moses Taylor, 4 Wall. 427, it was held the distinguishing and characteristic feature of a suit in admiralty is that the vessel or thing proceeded against itself is seized, impleaded-and held as the defendant, and is judged and sentenced accordingly.

In The Lottawana, 21 Wall. 558, the Federal court denies the State court’s admiralty jurisdiction of a proceeding purely in rem, in which all must agree, but concedes, as we think al 1 must, the right to proceed by common law remedy, or such remedies as are equivalent thereto.

In Langdon v. Wilcox, 107 Ill. 606, in concluding their opinion the court say: “A proceeding under the 6 WaterCraft Act’ is essentially, in many of its features, like a proceeding in rem in admiralty, though differing from the latter, it is believed, sufficiently to avoid any conflict with the Constitution of the United States, which gives to the Federal courts exclusive jurisdiction in admiralty.”

This jurisdiction of the State courts has been challenged many times under statutes similar to the one here in question, before the Supreme Court of this State, and that jurisdiction has in every instance, so far as we are advised, been sustained and upheld, the citation of which eases is not deemed necessary. In view of which we are constrained to hold, in the case at bar, that the court below had jurisdiction thereof, and finding no error in the record, the^ judgment of the Circuit Court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John McEniry et al. v. Town of Canoe Creek.

      Highways — Ditch as'Obstruction — Proceeding by Town to Recover Penalty — Instruction to Find Defendants Qmlty.

      In a proceeding by a town to recover a penalty for obstructing a highway by digging a ditch therein, the court below improperly directed the jury to find the defendants guilty, there being ho evidence fairly tending to prove one of them guilty.
    [Opinion filed December 19, 1888.]
    Appeal from the Oonnty Court of Bock Island County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. McEniry & McEniry and Sweeney & Walker, for appellants.
    Messrs. W. H. Allen and M. M. Sturgeon, for appellees.
   Per Curiam.

This case is brought here on appeal by appellants and the judgment of the court below is sought to be reversed on various grounds. The appellants were convicted below for digging a ditch in a public highway and “washing” the roadway with water. This case was before this court at a former term on appeal of the Town of Canoe Creek, and is reported in 23 Ill. App. 267. The judgment was reversed for an error in an instruction, though on the merits of the case the court held the defendants liable, upon proper proof of their digging the ditch. The case was again tried and on the trial the court directed the jury to find all three of the defendants guilty, and the jury rendered a verdict accordingly and fined the defendants three dollars. The defendants, at the time, excepted to this instruction. Judgment was rendered against all the defendants by the court after overruling a motion for a new trial. Defendants now bring the case here and allege, among other things, that the court erred in directing the jury to find the defendants guilty. In this we think there was error. There was, in fact, no evidence showing oi fairly tending to show that William McEniry had anything to do with digging the ditch or throwing water on the road. All the evidence that tends to implicate him was the statements of one or two witnesses that they heard one or both his brothers swear, on a former trial, that “ we did it,” and the further fact that "Win. HcEniry did not go on the witness stand and deny it. This proof is wholly insufficient to commit him-But, even if the proof fairly tended to show his guilt, and was of such a character that he might have been convicted upon it, still, he had a right to have the jury pass upon his guilt or innocence as a question of fact, and it was error for the court to deprive him of this right.

We see no other error in this record. The questions pressed upon our attention by appellants are not other or different from what they were when the case was before us before, and we see no reason for changing the views then expressed in our published opinion.

For the error suggested above the judgment is reversed and the canse remanded.

Reversed and -remanded,


text:
    Locey Coal Mines v. The Chicago, Wilmington and Vermillion Coal Co.

      Mines — Creditor's Bill — Receiver—Order for Sale of Property — Sale without Redemption — Statute—Priority of Claims — Receiver's Certificates — Practice—Oppression,
    1. The statute reserving the right to redeem real property sold under execution, decree of foreclosure, or to enforce a lien, has no application to an order for the sale of realty held as assets by a receiver appointed by the court by consent of both parties, in proceedings under a creditor’s bill, such sale being to secure funds with which to discharge mortgage incumbrances, receiver’s certificates and other claims against the owner.
    2. The plaintiff in error can not complain of an error which has not injured him, although it may have injured one who has not joined in the writ of error.
    3. In the case presented, the finding of the master as to the value of the property was but of slight importance, as it can neither affect the indebtedness nor the amount of the sale.
    4. The law does not regard the legal enforcement of a contract as oppression, although it may result in the sacrifice of the defendant’s property.

      [Opinion filed December 19, 1888.]
    Iu error to the Circuit Court of Will County; the Hon. Dorrauoe Dibell, Judge, presiding.
    Mr. Henry S. Monroe, for plaintiff in error.
    Mr. George S. House, for defendant in error.
   Per Curiam.

This was an original creditor’s- bill éled by the defendant in error against the plaintiff in error. The plaintiff in error was a corporation organized under the laws of Illinois for the purpose of carrying on the business of mining and selling coal. The property of the plaintiff in error consisted of 280 and 30-100 acres of land in Bureau County, .Illinois, in which it had an equitable interest, and also coal rights' under 211 71-100 acres of land adjoining, together with mining shaft, air shaft, tipple house, thirty miners’ houses, steam-engine, boiler, hoisting apparatus, machinery, pumps, cars, tracks, screens, pit and car scales, loading dock, boat, steam tug, etc., necessary for carrying on the coal business. The defendant in error was the judgment creditor of plaintiff in error. Execution had been issued and returned no property found.” The bill showed the existence, besides the judgment, of a $30,000 trust deed to Ilinchman, aud a mortgage to Lewis ■ of $1,800, both duly recorded; that the plaintiff in error was much embarrassed; that suits were being instituted, and showing that if the property could be preserved as a unit, it would be ample to pay all its debts, and praying for a receiver.

The receiver was accordingly appointed by consent of the parties herein, and afterward took possession of the property. Afterward, on petition of the receiver, he was empowered by the court to issue receiver’s certificates and borrow $10,000 for the purpose of operating the mine and paying amounts due the employes ($7,992.11) and to make repairs. Upon the petition of the plaintiff in error, by order of court the receiver was permitted to buy, in the name of the corporation, 300 acres more of mining rights, March 9,1887. This cost $3,200. The inventory of plaintiff in error showed goods in store to he of the value of $1,915.31, mining property $1,924, and hoat $832.40. Several claims were proven up against the plaintiff in error. On petition of defendant in error and consent of plaintiff in error, the receiver was afterward authorized hv the court to borrow $15,000 and issue receiver’s certificates, and make improvements on the property, and the plaintiff in error deeded all the coal mine property, real and personal, to the receiver. Upon the petition of defendant in error the court ordered the sale of all the property of the plaintiff in error vested in the receiver, consisting of the property above named, to he sold at the front door of the court-house in the city of Joliet, on May 28, 1888, between the hours of 9 a. m. and 5 p. ai., without redemption, the master to report the sale for confirmation on May 29, 1888.

The order for sale finds the amounts of the several debts to be paid and decrees the order in which they shall he paid. The debts were large, consisting of the above mortgages and trust deed, and a large amount of receiver’s certificates and other miscellaneous debts not necessary to mention.

The plaintiff in error brings the case here by writ of error from this court, and assigns for error the making of the above order of sale, and the order selling the real estate of the said coal company without redemption, and also that the master found the value of the property too low, and that the court erred in approving such finding, and in placing the receiver’s certificates ahead of and prior to the Lewis mortgage. The main point relied on, howrever, to reverse the order of the court below, is the supposed violation by the court below of Secs. 16, 17 and 18, of the statute entitled Judgments and Decrees, allowing redemption. The statute reads as'follows: “Sec. 16. When any real estate is sold by virtue of an execution, judgment or decree of foreclosure of mortgage, or the enforcement of mechanic’s lien or vendor’s lien, or for the payment of money, it shall be the duty of the sheriff, master in chancery or other officer, instead of executing a deed for the premises sold, to give the purchaser a certificate * * * and the purchaser will he entitled to a deed unless the premises shall he redeemed, as provided in this act.”

Sec. 17 provides for recording the certificate.

Sec. 18 says: “Any defendant, his heirs, administrators or assigns, or any person interested in the premises through or under the defendant may, within twelve months from said sale, redeem the real estate so sold * * * whereupon such sale and certificate shall he null and void.”

We have examined the brief of plaintiff in error on this question with the care that its importance deserves, but are forced to the conclusion that the above statute does not apply in a case like this.

This is to be more likened to a sale by the assignee of an insolvent estate, or in bankruptcy under the order of the court, or in the settling up of a partnership estate where real estate is sold for the purpose of reducing the assets to money, with which to effect the payment of the debts and the distribution of the estate, than to a common sale under the decree of court specified in the above recited statute. The court in the receivership had the entire control of the property in possession of the receiver, as well as the legal title in the receiver, placed there by the voluntary action of the plaintiff in error itself. The court was made the custodian of the property to administer, manage and sell it for the best interest of all. It was the agent of the plaintiff in error to sell and dispose of the property for the benefit of the unsecured creditors and the receiver’s certificates, as well as for the trust deed and mortgage, and its functions were not to foreclose these mortgage securities, but to administer and sell the property for the general benefit of the creditors. Then, again, we think that the case here may very properly fall within the category of cases where the property consists of real and personal assets so intermixed as to constitute a unit, where it can not be sold separately without damage to the property, as railroad right of way, track engines, rolling stock, etc , and may be regarded as an exception to the general rule. It may properly fall within the principle of the following cases: Hammock v. Loan and Trust Co., 105 U. S. 77; Peoria & S. R. R. Co. v. Thompson, 103 Ill. 187. We think, therefore, that the order of sale without redemption was not only proper, but it would have been improper not to have so ordered it.

The point in regard to the finding of the master of the values Of the property is of little importance, whether too high or too low, as it dues not make the debts any more or less, or affect the amount of the sale. It is not an error, if an error, for which the order could be reversed.

The other point, that the certificates of the receiver are put ahead, in order of payment, of the Lewis mortgage, can not be raised here by the plaintiff in error, as Lewis has not joined in this writ of error and he alone is affected.

Much has been said and argued, by counsel for the plaintiff in error, in regard to the alleged bad faith and oppressive conduct of the defendant in error, in inducing it to borrow money on the property and then, contrary to expectation, pushing for its sale with design to acquire it at a sacrifice. Were these charges wóll founded, upon which subject we express no opinion, we would certainly wish it were otherwise; but the right to the relief the law gives one having a claim past due against another to have it paid or force the sale of the debtor’s property, can not be withheld on such consideration. The law does not regard it as oppression. The law will enforce contracts and payments notwithstanding the sacrifice of the debt- or’s property, but in doing so it will be careful to do the latter as little harm as possible.

Seeing no error in the record, the order of the court below is affirmed, and it is further ordered that the cause be remanded to the court below with instructions by supplemental decree to fix a time and place of sale, and the manner of advertisement thereof, as in its discretion it may deem best.

Order affirmed and ca/use remanded.


author: Pleasants, J.

text:
    Edward Prince v. The City of Quincy.

      Municipal Corporations — Indebtedness—Constitutional TAmit — Contract to FurnishWater — •Municipal Torts — Quantum Meruit — Fraud—Estoppel —Former Adjudication.

    1. The constitutional limitation of municipal indebtedness applies to a contract for a term of years relating to ordinary current expenses, payable out of current revenues.
    2. A municipal corporation is not liable in tort, when the alleged tort arises from the breach of a contract which is void by prohibition of the Constitution.
    3. In the case presented, it is held: That monthly installments for water, due the owner of water works, under the terms of a contract for a period of years, constitute a municipal indebtedness; that a failure to pay such installments out of current revenues, the municipality being already indebted beyond the constitutional limit, does not amount to a tort; that a former suit in assumpsit operates as a former adjudication; and that the use of water by the defendant without intending to pay for it was not fraudulent.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Adams County; the lion. William Mabsh, Judge, presiding.

      Mr. William McFadon, for appellant.
    The constitutional provision relating to indebtedness does not obliterate, abolish or extinguish any of the powers of a city in relation to current expenses, as the same are conferred by its charter, but its chartered powers in such regards are, notwithstanding said provision, still left in force as there conferred. Valparaiso v. Gardner, 97 Ind. 1; Grant v. Davenport, 36 Iowa, 396; East St. Louis v. E. St. Louis Gas Co., 98 Ill. 415; Railway Co. v. City of Jacksonville, 114 Ill. 567; Laycock v. Baton Rouge, 35 La. Ann. 475; Tax Payers’ Assn. v. City of New Orleans, 33 La. Ann. 571; Smith v. Town of Dedham, Mass., 10 N. E. Rep. 783.
    Quincy, by its charter, and prior to the passage of the constitutional provision aforesaid, being empowered “to provide the city with water, to erect hydrants and pumps in the street for the convenience of its inhabitants,” had the power to do the same thing after and notwithstanding the going into force of said provision. City of Quincy v. Bull, 106 Ill. 350; Session (Private Laws) 1857, p. 181, Sec. 22; Session Laws 1840, p. 116, Sec. 8.
    By a uniform current of decisions in States where a constitutional or statutory limitation restricts the incurring of indebtedness by municipalities beyond a certain point, the indebtedness of a city, if upon a time contract for current expenses, does not arise at the time of making such contract-If the opposite were the rule, the aggregate of all the payments to he made during the entire duration of the contract, would constitute an indebtedness of such city, arising at the moment such contract was made. The true rule upon the authorities is that the indebtedness under such contract only arises from month to month, as and when the article contracted for is furnished. Smith v. Dedham, 10 N. E. Rep. 783; East St. Louis v. E. St. Louis Gas Co., 98 Ill. 430; City of Valparaiso v. Gardner, 97 Ind. 1; Grant v. Davenport, 36 Iowa, 396; Weston v. Syracuse, 17 N. Y. 113; Laycock v. City of Baton Rouge, 35 La. An. 475; Reynolds v. Shreveport, 13 La. An. 430; State v. McCauley, 15 Cal. 429; People v. Pacheco, 27 Cal. 175.

      Inasmuch as on a time contract for water (it being a current expense of a city), no indebtedness is created only as and when the water is furnished, and even then no indebtedness is created if the revenue of such city be applied in payment of the successive installments due under the contract, it follows that the only effect of the constitutional provision relating to indebtedness above referred to, as applied to a city indebted up to the constitutional limit, is to so change the legal effect of its contracts as to current expenses, as that the same, instead of being payable generally by and against a city as theretofore, become and are payable specifically and specially out of its revenue. East St. Louis v. East St. Louis Gas Co., 98 Ill. 430.
    The decisions of courts upon contracts which have been held payable out of revenue, or a special revenue, become, tlien, applicable to the case in hand, and from these decisions, it is clear in such cases that any default on the part of municipal authorities in collecting such revenue, or in taking the necessary steps to give such revenue to the parties entitled to the same, or to make the same available to them, is a wrong on the part of the officers, for which the city itself is liable in an action of tort. Clayburgh v. City of Chicago, 25 Ill. 536; Lansing v. Van Gorder, 24 Mich. 456; Chaffee v. Granger, 6 Mich. 51; 2 Dillon Mun. Corp., Sec. 968; Kearney v. Covington, 1 Metc. (Ky.) 339; McCullough v. The Mayor of Brooklyn, 23 Wend. 460; Western v. The Mayor of Brooklyn, 23 Wend. 334; Shearman & Red. on Neg., Sec. 136.
    To show that a tort has been committed in the case at bar, in the manner the city officials have dealt with said appellant, is the obj ect of this subdivision of pur brief, and that this is so appears from these considerations:
    The charter of the city of Quincy provides that the city council of said city shall have power to appropriate money and provide for the payment of the expenses of the city. Private Session Laws, Illinois, 1857, p. 163, Chap. 4, Sec. 4.
    The vesting the power last aforesaid in- the city council of Quincy, carried with it the duty on the part of that city council to appropriate money and provide for the payment of the expenses of the city, for the failure to perform which an action lies in favor of the party aggrieved against the city. Clayburgh v. Chicago, 25 Ill. 536; City of Cairo v. Campbell, 116 Ill. 309; Seagraves v. City of Alton, 13 Ill. 366; Chicago v. Robbins, 2 Black, 418 ; Bloomington v. Bay, 42 Ill. 507; Lansing v. Van Gorder, 24 Mich. 456.
    Under said provision of the charter it was not only the duty of such city council to appropriate money, but it was also the duty of that body to audit bills, and to pass any and all ordinances and resolutions, and to do any and all acts and things necessary to give appellant his money. Frank v. San Francisco, 21 Cal. 695; The State ex rel. v. Cincinnati, 19 Ohio, 195; City of Cairo v. Campbell, 116 Ill. 309.
    Action on the part of Quincy’s city council under such ¡Dower is not legislative or discretionary, hut the exercise of such ¡lower by such council is imperative in favor of the party entitled to the money for current expenses furnished. City of Cairo v. Campbell, 116 Ill. 309; Supervisors v. U. S., 4 Wall. 447; Galena v. Amy, 5 Wall. 705; Commonwealth v. Pittsburg, 34 Pa. St. 513; Robinson v. Butts City, 43 Cal. 354; Frank v. Supervisors, 21 Cal. 695; 2 Dill. on Munic. Corp., Sec. 857.
    A duty being imposed on Quincy’s council by the chartered provision last cited, and that duty, being omitted, and by virtue of such omission a substantial loss of money resulting to said appellant, we have here all the eietiients of a tort. Loup v. California S. R. R. Co., 63 Cal. 99; Underhill on Torts, 4.
    The constitutional provision relating to indebtedness does not constitute a defense to an action against a city, though indebted to the five per cent, limit, where the action is a tort brought for the negligence of its agents. City of Chicago v. Sexton, 115 Ill. 245; Bloomington v. Perdue, 99 Ill. 329; Bartle v. Des Moines, 38 Iowa 414; Rice v. Des Moines, 40 Iowa, 638.
    The contract sued on for water was older and of earlier date than any other contracts relating to anjr of its current expenses for the respective fiscal years aforesaid. The contract was itself an appropriation of the future revenues of the city which successive councils, when coming into office, were hound to regard. Syracuse v. Weston, 17 N. Y. 113; Grant v. Davenport, 36 Iowa, 396.
    And the city of Quincy having revenue enough to pay the claims arising under the contract in the case at bar, its council could not vote away revenue from the appellant, and appropriate it to contracts of later date, and then claim that the contract by said ordinance created was invalid. Cincinnati v. Cameron, 33 Ohio St. 375.
    It has been held, even in matters which are discretionary with city councils, that a wilful omission to act or an omission to act from malicious motives, is an abuse of discretion and therefore a breach of duty, which is actionable. Roberts v. City of Chicago, 26 Ill. 251; Village of Glencoe v. People, 78 Ill. 389; State ex rel. v. Moore, 42 Ohio St. 108.
    For the wilful and malicious omissions of duty and acts on the part of its officers alleged in the declaration and admitted by the demurrer, the appellee is clearly liable.
    The appellant desires to call especial attention to the ninth count of his declaration. This count shows the taking and use of appellant’s water with the intention of not paying for it, and the use of said water under the facts set out in this count, and with the intention of not paying for it, constitutes a gross fraud on appellant. Had the water not been used up, appellant could recover the same in specie. Having been used up, his remedy is in case for the fraud. Dow v. Sanborn, 3 Allen, 182; Fox v. Webster, 46 Mo. 184; Benj. on Sales, § 440, notes and cases cited; Stewart v. Emerson, 52 N. H. 301.
    Messrs. Geobge A. Andebson and Cabteb & Goveet, for appellee.
    If there had been a tort, has it not been waived by the plaintiff in bringing his action in assumpsit on the contract? The declaration shows that the plaintiff brought suit against the defendant in assumpsit for the same alleged indebtedness prior to the bringing of the present suit. That suit having been carried through the various courts, and finally decided adversely to the plaintiff by the courts of last resort, the plaintiff changes his form of action and begins a new suit.

      If the action of the city council in refusing to pay the plaintiff’s alleged claims amounted to a wrong or tort, it was in his discretion to have either sued in case or to have waived the tort and sued in assumpsit. State v. Evans, 35 Ill. 455; Gray v. St. John, 35 Ill. 222; Ives v. Hartley, 51 Ill. 520; Alderson v. Ennor, 45 Ill. 128; Creel v. Kirkham, 47 Ill. 344; DeClercq v. Mungin, 46 Ill. 112; Parker v. Tiffany, 52 Ill. 286.
    If plaintiff’s theory of the action of the city council in refusing to pay the water bills is correct, he must be held to have waived the wrong in bringing his suit in assumpsit. Kellogg v. Turpie, 2 Ill. App. 55; Brumbach v. Flower, 20 Ill. App. 219.
    We deny that the record shows that there was any fault or wrongful neglect on the part of the city council, but we insist that if it did, the corporation can not be held liable as in tort for a mere non-feasance of the city legislature. And this, whether the contract or indebtedness was or was not jn'ohibited. Dillon on Mun. Corp., Secs. 91, 482, 949, 964, 966 and 1048; Baker v. State, 27 Ind. 489; Morris v. People, 3 Den. 381; Wells v. Atlanta, 43 Ga. 67; Gillett v. Lyon, 18 Kan. 410.
    Public officers whose offices are created by the act of the Legislature, as members of a city council are not municipal agents or servants. Their neglect is not to be regarded as the neglect of the municipal corporation. And the city is not liable for the non-feasance of its public officers in the performance of their public duties, unless expressly made so by statute. Wheeler v. Cincinnati, 19 Ohio St. 19; S. C., 2 Am. R. 368; Brinkmeyer v. Evansville, 29 Ind. 187; West Col. Med. v. City of Cleveland. 12 Ohio St. 375; Thomas v. City of Richmond, 20 Wall. 349; Dill. Mun. Corp. Secs. 61 and 372; Gibbs v. Beaufort, 20 S. C. 213; S. C., 5 Am. and Eng. Corp. Cas. 428; Black v. City of Columbia, 19 S. C. 412; S. C., Am. and Eng. Corp. Cas. 640; Coleman v. Chester, 14 S. C. 290.
    A legislative corporation established as a part of the government of the country, is not liable for a non-feasance by an omission to observe a law of its own in which no penalty is provided. Fowler v. City of Alexandria, 3 Pet. (U. S.) 408.
    It is not liable for the non-exercise of, or for the manner in which in good faith it exercises, discretionary powers of a public character. 2 Dillon Mun. Corp. 949, 3d Ed., and cases cited; Boone on Corporations, Sec. 300.
    In Board of Trustees v. Schroeder, 58 Ill. 353, it was held that a municipal corporation is not liab'e for the illegal and unauthorized acts of its officers in administering an ordinance. Mor is it made liable by the fact that its board of trustees are cognizant of the tortious act, or even participate therein. Larkins v. Saginaw, 11 Mich. 88; Detroit v. Blakely, 21 Mich. 84; S. C., 4 Am. Rep. 457; Mulcairns v. City of Janesville, 29 N. W. Rep. 565, and cases cited and note; 2 Thompson on Neg., 675, 731, 818.
    In Detroit v. Blakely, 21 Mich. 84, Judge Cooley in his opinion, dissenting in some other points from the majority of the court, said: “I fully concur that a municipal corporation is not liable to an individual damnified by the exercise or failure to exercise a legislative authority.”
   Pleasants, J.

This was an action on the case brought by the appellant against appellee. The declaration contained eleven counts. A demurrer, general and special, to the whole declaration and to each count thereof was sustained, and the plaintiff abiding, a judgment of nil capiat and for costs was rendered against him, from which he took this appeal. The question is upon the sufficiency of this declaration.

In the first count it is alleged that the defendant was incorporated by special act which empowered it, among other things? “to appropriate money and provide for the payment of the debt and expenses of the city;” that in August, 1873, it passed an ordinance (set out in haec verba) which was duly accepted by plaintiff and so became a contract between them, whereby plaintiff was to construct, maintain and keep in operation within the corporate limits of the city a general system of water works, to be extended and enlarged from time to time as therein prescribed, and the defendant was to pay him in monthly installments from the time water should be turned on, the snm of §2,600 per annum, and also in like manner §200 per annum for each of the first one hundred hydrants, which contract was by its terms to run for a period of thirty years; that the plaintiff fully performed all the things by said contract required of him and within the time thereby limited for that purpose, and at all times during the fiscal year next mentioned had and furnished water through seventy-seven hydrants, on each of which water had been previously turned, and all of which had been located under and pursuant to the provisions of said contract; that the city had a fiscal year of its own, commencing March 31,1880, and an income and revenue of its own for said year; that, at the commencement of said year and at all times during the same, it was indebted upon its valid bonds theretofore issued and then outstanding and unpaid, to the amount of more than §1,700,000, which greatly exceed five per cent, on the value of all the taxable property within its limits, as ascertained by the last assessment for State and county taxes made before the commencement of said year, or by any assessment therefor made during said year; that by reason thereof plaintiff became and was entitled to payment out of the revenue of said year, and the city council ought to have provided out of the same for the payment to him of the contract rate per hydrant specified in said ordinance; that, although the city during said fiscal year received and used the water so furnished through said seventy-seven hydrants, and its income and revenue during said year was ample and sufficient for such payment in full, nevertheless the city council wilfully neglected and refused to appropriate therevenueof said year to, or provide for the payment of, the amounts so due to the plaintiff, hut on the contrary permitted said revenue to be dissipated, scattered and diverted from the payment thereof; by means whereof the revenue of said fiscal year was lost to the plaintiff, and the amount due him for water furnished to the defendant during said year remains unrecovered and unpaid.

In this count the duty of the council is alleged to have been to provide for the payment to plaintiff, out of the revenues of the year, of the amount of the contract rate for the water furnished during the year. This duty is predicated upon (1) the chartered power of the council to appropriate money and provide for the payment of the debts and expenses of the city; (2) its express contract with plaintiff, performed on his part; (3) its indebtedness, previously and then existing, to the full limit of its constitutional power to contract indebtedness, and (4) its possession of revenue for that year sufficient for such payment. The breach complained of is its refusal so to provide for payment to the plaintiff and the appropriation of said revenue to other uses; and the damage or injury to the plaintiff alleged, is the non-payment of his claim.

The other counts, excepting the ninth and eleventh, are in principle and general form the same as the first, the difference being, that some relate to the claims for water furnished during the two following years, respectively; some aver that an actual though insufficient appropriation was made for the claim for the year therein mentioned; some'allege the contract as one implied from the receipt and use of the water to pay the plaintiff quantum meruit; some state the ducy was to pay for current expenses pro rata, and some charge the refusal to pay as designed and malicious.

It is not proposed to notice all of the many points discussed and authorities cited by counsel, but only two or three which in the light of our own State decisions are deemed decisive of the question here presented.

At first blush it would seem that by each of these counts it is sought to charge the city in tort for the simple refusal of its council to pay an indebtedness contracted directly in the face of an express constitutional prohibition, and so, to recover as damages the precise amount of that indebtedness, with interest from the time when it became due by the terms of the contract. But counsel, as was to he expected, disclaim a position so clearly untenable. Yet this apparent effect of all the facts alleged is obviated only, if at all, by the introduction into the pleading itself, by inference and as argument, of certain propositions of law touching the effect of the constitutional prohibition upon the contract and claim in question, and the character of the fund called “current revenue,” which are admitted to be essential to the sufficiency of these counts.

Those propositions are that the legal effect of the prohibition upon plaintiff’s claim was to make it, not non-payablc, but payable only out of current revenue, and that current revenue was a specific fund for its payment; and they raise the questions wepuipose, mainly, to consider.

The reasoning in support of them, -and which develops the theory of appellant's case more fully, is this: (1) Conceding- that appellee had already reached the limit of indebtedness prescribed by See. 12 of Art. IX of the Constitution, the prohibition therein contained did not abrogate its charter powers 16 to provide the city with water, and to erect hydrants and pumps in the streets for the convenience of its inhabitants,” and “to appropriate money and provide for the payment of the * * * expenses of the city,” or any others, but only forbade that in the exercise of these powers it should contract any further indebtedness; (2) that a city so indebted may nevertheless incur current expenses for police service, lighting the streets, water supply and the like, provided only it dues not thereby add to its indebtedness; (3) that to contract for such services, if it can pay for them out of current revenue, is not necessarily to add to its existing indebtedness; (4) that under continuing contracts therefor, providing for periodical payments, no indebtedness can arise until the service is rendered np to a period for payment, and if payment is then made none has been thereby added to that already existing, within the meaning of the prohibition; (5) that, being forbidden to contract indebtedness for them directly, or to borrow means of payment, the only resource is the current revenue; (fi) that being the only available means of payment, this current revenue is a specific fund for that purpose; (7) that so to apply it is therefore a specific ministerial duty of the council, made all the more clear and binding by its limitation to this means; (8) and that the refusal, neglect or failure to perform such a duty is a municipal tort.

Of this series of propositions we hold the third, fourth, fifth and sixth, which embrace the two previously stated, to he unsound; and if they are so, the seventh and eighth are inapplicable.

The constitutional provision referred to is that “no * * * municipal corporation shall be allowed to become indebted, in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding ñvéjier oenium on the value of the taxable property therein, to be ascertained by the last .assessment for State and county taxes previous to the incurring of such indebtedness.”

This language leaves nothing for construction except to ascertain what it is “ to become indebted ” in the sense here intended; for none that could be employed would be more apt to show that upon all such contract liabilities as are within its purview this provision operates with only one effect, which is to disallow them. It is too plain for argument that it does not classify them as non-payable and payable out of special funds, or otherwise, nor change any from being a charge against the city generally into a charge against the current revenue only, but makes them all alike absolutely non-payable and void. If, then, the contention of counsel that it so changed the contract and claim here in question is an admission that they were within its purview, it admits away then-ease ; and if the fact- that without that provision it would have been an indebtedness against the city generally shows it to be so, then that fact, independently of any admission, must also be fatal. It either was or was not within the purview of the inhibition. If not, it was in no way affected by it; if it was, the refusal to pay it, however caused or manifested, could not be a tort.

We apprehend the real position of counsel to he, that because this claim was properly payable out of current revenues, it was not within the inhibition, which is therefore invoked only as further certifying and enhancing the alleged duty of the council to pay it accordingly.

But it can not be that the duty referred to was that of anticipating the revenue and avoiding liability, by assigning the amount required, without recourse, out of a tax already levied for the purpose, as indicated in the Edwards case (84 Ill. 633). It is not averred that any such course was ever requested or suggested by appellant, nor does it appear that its necessity or propriety was apprehended by either party. Another and different one was expressly provided, with his full understanding and assent. In reference to both the §2,600 per annum and the additional sum per hydrant the language of the ordinance is the same: “ Said city shall pay said Prince in monthly installments, from the time water is turned on,” etc. (Sections four and seven.) Thus the contract was not to provide for payment, but to pay; not out of a particular fund, but absolutely; and the obligation for the delivery of the money was not cast upon its officers, but assumed by the corporation. Failure in duty respecting this claim must therefore consist in failure to pay it according to the contract. So we understand the wrong really charged to he, not in procuring the contract or its performance wifcliout securing or providing for payment in a particular way, but in refusing to pay.

By its charter, the amount of taxes the city could levy in any one year for all purposes, except for interest on its registerod bonds, was limited to §1.03 on the §100 of the assessed valuation of all the real and personal property therein. Binkert v. Jansen, 94 Ill. 283. The amount of such valuation, or of the taxes levied, or of the current revenue in any year, or how it was applied, or that one dollar was improperly applied, except as it was thereby diverted from the payment of appellant’s water bills, is nowhere averred. Therefore the dissipation and scattering of the revenue, as alleged, involved no wrong unless the payment of appellant was a duty; and so the charge is reduced to a refusal to pay him, which, in this case, would be a mere breach of the contract in that behalf, unless such payment was a duty specifically imposed by something besides the contract itself, since no other element of a tort is alleged or discovered in the fact or cause or manner of the refusal; and hence the importance attached to the fact of the city’s existing indebtedness, and the consequent effect, as supposed, of the constitutional inhibition.

Thus the position of appellant seems to be that the contract being for current supplies to be furnished continuously for a specified sum per annum, payable monthly, within the amount of current revenue, did not create such a liability on the part of the city as was forbidden, and if the periodical payments provided for had been made when due by its terms no indebtedness within the meaning of the Constitution would have arisen; and that his claim became an indebtedness, and therefore non-payable as such, by the failure to pay it when due, which was wholly the fault of the city council, and is the tort here contained of.

There is no doubt that the effect of the inhibition was to require the city, indebted as it was, to carry on its corporate operations, while so indebted, upon the cash or pay-as-you-go plan, and 'not- upon credit to any extent or for any purpose; and the question is whether the course contemplated by this contract xvas in accordance with that plan.

It clearly did not contemplate any payment in advance, but that a claim against the city would be constantly accruing, payable from month to month, for xvator previously furnished —“from the time water is turned on” — and that, having been furnished, the obligation to make these payments at the times specified would be absolute and wholly irrespective of its ability or actual possession, at such times, of cash wherewith to make them. Thus some credit was contracted, and not upon the faith of money in hand when performance by appellant was begun, but of money expected to be in hand when it should be completed. And under the charter limitation of the amount of annual taxes to be levied and the known method of their collection, some risk of its unavoidable extension beyond the fiscal year was necessarily incurred.

Appellant’s claim arose directly upon this contract, as executed p?'0 tanto. It was for a specified sum of money thereby agreed to be paid for certain services to he rendered, which wmre rendered. Had there been no limit to the amount for which the city could become indebted, he could have recovered it xxpon a general judgnxexxt (East St. Louis v. E. St. L. G. L. & C. Co., 98 Ill. 415), and then have had a mandamus for the levy and collection of a tax to pay it. City of Cairo v. Campbell, 116 Ill. 365. In other words, it would have been a projxer debt against the city — a contract liability which had become absolute for a sum certain in money. ¡Nor is it perceived how it could have been anjr the less a debt against the city if it had been made payable out of a suflicient current revenue or any specific fund, or if the city had been all the time possessed of money enough to pay it and all other current expenses, or if it had been actually paid when due. Such payment would have extinguished the indebtedness, hut could not have,anticipated, prevented or avoided it. That accrued from day to day as the water was furnished (E. St. L. case, supra, p. 430), though it was not payable until the end of the month; for there was no default on the part of appellant nor any failure of any contingency on which his right to the money, under the contract, if it had been valid, depended.

Then, if the indebtedness so arising was forbidden, the contract upon which it arose — which expressly contemplated and provided for it, though in itself executory and creating only a contingent liability, was also forbidden. Prohibition of the end is prohibition of the direct, designed and appropriate means. Being an attempt by the city to put it in the power of appellant and induce him to acquire an absolute indebtedness against itself, it was, so far as executed, as clearly against the policy and provision of the Constitution as the creation of a present debt. If it had not been executed, nor any attempt been made to enforce it or to recover for a breach of it, and so far as it remains unexecuted, of course no such question could arise, there would be nothing to which the inhibition could apply. East St. Louis case, supra.

In the City of Springfield v. Edwards, 84 Ill. 632, the court construing this provision, say it is “against becoming indebted, that is, voluntarily incurring a legal liability to pay, in any manner or for any purpose, when a given amount of in ebtedness has previously been incurred. * * * A debt, payable in the future is, obviously, no less a debt than if payable presently; and a debt payable upon a contingency, as upon the happening of some event, such as the rendering of service or the delivery of property, etc., is some kind of a debt, and therefore within the prohibition. If a contract or undertaking contemplates, in any contingency, a liability to pay, when the contingency occurs the liability is absolute, the debt exists, and it differs from a present, unqualified promise to pay,' only in the manner by which the indebtedness was incurred. And, since the purpose of the debt is expressly excluded from consideration, it can make no difference whether the debt be for necessary current expenses, or for something else.” These general propositions would seem to cover all the. material points here involved, but the court went further and specifically held it unlawful for a city so indebted to incur a liability for current expenses or anything else, even though it should at the same time (as some of the counts allege it did here) make a final appro¡ riation, within the limits of the revenue accruing, to meet it; that to ava'il itself of current but uncollected revenue for such purpose it must go further and assign the amount out of a tax actually levied, and without recourse,in such maimer as to ‘'leave upon the city no future obligation, either absolute or contingent, whereby its debt might be increased.”

The authorities to the contrary here relied on, from Iowa,, California, Ohio and Louisiana, were there considered and expressly held to be overborne by the plain, broad terms of our Constitution. We can not avoid the conclusion from this decision, that the contract here in question was void, and that the claim of appellant, whether upon the contract or quantum meruit, was not legally payable out of current revenue or otherwise.

In Law v. The People, 87 Ill. 385, that case was approved and the propositions above quoted wcie reaffirmed, the court dec'aring the inhibition “ was intended to embrace indebtedness of every description, nature and kind, and in every sense of the term, whatever the character or form by which it was evidenced, when made or issued after the limit should be reached.” This leaves no possible ground for the supposed distinction between an indebtedness for current expenses and on other accounts, or between one payable out of a specific fund and one chargeable against the city generally. See also Fuller v. City of Chicago, 89 Ill. 282; Fuller v. Heath, 89 Ill. 296; Howell v. City of Peoria, 90 Ill. 104; City of Litchfield v. Ballou, 104 U. S. 190.

But still more directly, the questions upon which the right to maintain this action depends, seem to us to he res adjudiecta. Prince v. The City of Quincy, 105 Ill. 138, was a suit in assumpsit between these same parties, upon the contract and for the claim here under consideration. The defense pleaded was, in substance, that at the time of making the contract sued on the city was, and ever since had continued to he, otherwise indebted in an amount exceeding the constitutional limit; the plaintiff íeplied that the several sums of money sought to be recovered “ pertained to the ordinary expenses of the defendant in the administration of the affairs and government of the city, and that, at the time of the making of said contract, the said several sums of money so provided to be paid monthly by said defendant to said plaintiff, together with other ordinary expenses of the government of the said defendant, were within the limits of the current revenues of said defendant;” and the case was disposed of on demurrer to this replication.

It was there contended on behalf of appellant that the term “ indebtedness” did not apply to contracts relating to the ordinary current expenses of a city, payable out of the current revenues, and the Iowa and California eases were cited; but the court held that “to so construe the Constitution would he to add a provision, in the nature of an exception, which the framers of that instrument did not see proper to insert.”

The plea was therefore held good and the replication no sufficient answer to it; the two preceding cases were approved and the construction therein given was declared to be the, result of the “deliberate and mature consideration” of the court. There, it was admitted by the pleading that the parties made this contract; that the plaintiff performed it on his part; that the water supplied was one of the ordinary current expenses of the city; that the price agreed on as claimed and the other current expenses were within the amount of current revenue, and that the city refused to pay him; and yet he could not recover, because by reason of its existing indebtedness the contract sued on and the claim so- arisen thereon were prohibited by the supreme law of the State, and therefore void. This case and another like it, reported in the same volume at page 215, distinctly hold that the identical claim here in question was a debt added to that already existing against the city, in excess of the limit prescribed, and directly within the inhibition.

It must follow that the refusal to pay it when due by the terms of the contract, or at any time afterward, whether from inability in consequence of the diversion of the revenues to other uses to its exclusion, or other causes, or from wilfulness, could not be a tort. Its payment at that time, out of current revenues or any other fund, or in any way whatsoever, instead of being a duty enhanced or imposed by any Jaw, contract, fact or condition, was absolutely forbidden and would have been unlawful. There being no duty to pay, the refusal could make no case for mandamus or any other proceeding at the suit of appellant; and the case of Clayburgh v. City of Chicago, 25 Ill. 526, and others cited to like effect, are not in point.

But it is said that under the form of cpntract here presented, there could be no indebtedness until the period for payment arrived, and (if we understand counsel) that had payment been then made, none would ever have arisen, within the meaning of the inhibition. The case of East St. Louis v. E. St L. G. L. & C. Co., 98 Ill. 430, is cited as if it modified the decisions above referred to on this point. There it was for the supply of gaslight for a long term of years, at a stipulated price per lamp per year, payable in monthly installments; and, while the court held that the price for the whole term was not to be considered an indebtedness incurred on the making of the contract, within the meaning of the Constitution, we understand it to have held that the installments, as they became due, would be, even if they were paid at the time. Its language is: “Had the contract been performed in compliance with its terms -x- -x- * there would have arisen no indebtedness on the part of the city for more than one month’s gas supply.” (Counsel will observe that from the quotation in their brief, at bottom of page 16, two important words are omitted— doubtless through inadvertence.) This, we apprehend, is strictly in harmony with that herein above quoted from the Edwards case, and in Prince v. City of Quincy, 105 Ill. 143. We have the direct authority of the court itself for saying it does not modify those referred to. A recovery was allowed because the amount accrued and claimed did not increase the city’s debt beyond tlie limit prescribed.

The argument seems also to be pervaded by a somewhat vague assumption of a distinction between payment and providing for payment, as a basis for the contention that, by virtue of the charter power to provide for the payment of the expenses of the city, independently of the contract, or under the contract as claimed to be changed by the inhibition, a duty was devolved upon the council in respect to appellant’s claim to take whatever action was necessary to satisfy it when it should become due. That would include the appropriation of money, the levying of a special tax, the auditing of bills, the passage of ordinances and resolutions, the issuing of warrants against the tax levied, without recourse, and any and all other things required by law, to be done before it became due by the terms of the contract, in order to give him the money contemplated by the contract, or that he ought to have. The claim is that the omission of any such act, resulting in a substantial loss to appellant, constitutes a tort; and it is urged as being entirely consistent with the admission or fact that the claim did become such an indebtedness as was prohibited and therefore unrecoverable as such.

It is true that notwithstanding its indebtedness and the inhibition, tlie city continued to have authority to provide a water-supply, and that it remained under obligation to pay its current expenses consistently with the Constitution. If, however, upon its contracting for proper supplies or services without any express provision as to the mode of })ayment, the law would imply a duty to take all needful steps to effect it, as intimated in Law v. The People, 87 Ill. 400, and if it might so fail to perform as to be guilty of a tort, that, as we have attempted to show, is not the case presented by this declaration; and if it were, it must surely be that this duty could he made unavailable in this form of action by the consent of the party to whom it would otherwise be owed. How can appellant charge that the city tortiously omitted to assign enough of the uncollected revenue to pay him, in such time and manner as to avoid all liability on account of the water-supplied, since he expressly agreed to give and did give it credit therefor and looked to it for payment -when and after it should become due according to the agreement? This agreement can not be ignored. It is alleged and set forth .in each of these counts. It fully shows all the obligation he asked or the city assumed in that behalf. Its performance would have accomplished the same object, but in quite a different manner. His stipulation for, and reliance upon, its performance, were therefore necessarily a consent to the nonperformance of the other, which for that reason could be no wrong to him.

For it is not pretended that such consent was obtained by the misrepresentation or concealment of any fact, or other fraud on the part of the council. The truth evidently is that both he and the board that passed the ordinance supposed the inhibition (if it was in their contemplation at all) would not affect this contract; that the agreement to pay in monthly installments, provided they could be paid as they became due out of current revenue, would not operate to increase the corporate indebtedness; that if each board should pay the bills of its term as they became due out of current revenues, or so applied them that, at its close, no indebtedness for the current expenses thereof would be left unsettled and open against the city, there would be no infringement of it. Of the plausibility or reasonableness of this view there is no need to say more than that our Supreme Court, differing, perhaps, from some others as to like cases, pronounced against it. Being entertained by these parties at the time, however; they innocently provided for and created this monthly debt, and, so long as it was held, the council continued to pay it.

A later board, coming to doubt its authority, on that ground refused to do so any longer. Still appellant did not shut- off the water, nor propose a new arrangement for its supply, nor go on under any implied promise to pay him quantum meruit. On the contrary, he insisted on the validity of the ordinance and brought suit upon it; altlioug, has he alleges in the e'eventh count, on the invitation of the council, and upon the promise that, if it should be decided against him, the city would pay him for water furnished in the meantime a reasonable price; which would seem to have been an attempt to create another contingent liability, quite as obnoxious to the Constitution as the one the council had just repudiated and the Supreme Court afterward condemned.

We think this contract for credit, voluntarily made, without fraud on the part of the council, or ignorance of any material fact on the part of appellant, estops him to charge that the failure to pay or make provision for payment, otherwise than as so agreed, was a wrong. The rule embodied in the maxim, volenti non fit injuria, is, “ that no one can maintain an action for a wrong where lie has consented or contributed to the act which occasions his loss.” Broom’s Leg. Max. (2d Ed.) 201. And the estopping fact, appearing in the declaration, may be taken advantage of on demurrer.

The ninth count, setting out the contract and averring its performance by plaintiff and payment therefor by defendant for some years, then alleges that, although defendant afterward disowned it and notified plaintiff that it would no longer be bound thereby, nevertheless it continued to use the water, without intending to pay but intending not to pay for it. This is likened to the fraud of obtaining persona! property under pretense of purchasing, but with the intention not to ] ay. We think there is a wide difference. Deceit, which is the essence of fraud, is the chief characteristic of that case, hut is not even charged "in this. These works were established and in actual operation, supplying the city and its inhabitants, under an ordinance which may have been valid as to all or many other of its provisions, though void as to that relating to payment by the corporation. City of Quincy v. Bull, 106 Ill. 348, 352. Section 17 provides that “ said Prince shall have the right to make all needful rules and regulations for the government of said works in all its branches and departments, and no person, except the city council or said Prince, or their properly authorized agents, shall have the right to open or interfere in any way with any fire hydrant in said city, and said city shall have at all times the right to use water from said fire hydrants for the following purposes, and no other, viz., for the extinguishment of tires, for the use, exercise and practice of tire engines, for filling fire cisterns and other legitimate and proper fire purposes.” Under this provision, duty to persons and property within its limits required the city to use the water for these purposes, notwithstanding its intention not to pay fur it according to the terms of the ordinance. It is not claimed that it used it for any other, nor that it “disowned” any other provision of the ordinance than that which was “disallowed ” by the Constitution. Duty also required it to disown that, and for so doing it should not be subject to any penalty, forfeiture or restriction of right under other and valid provisions, nor to any unfavorable presumptions or odium that should attach to a wilful repudiator. The giving of the notice mentioned was, therefore, an act of frankness and justice to appellant, and not at all indicative of fraud.

For aught alleged in this count it Would have agreed to any lawful arrangement, if any had been proposed, for the satisfaction of his claim. The averment of its intention not to pay seems to be an inference from the notice, and in connection with such notice, and disownment of the contract, as stated, is to be limited to an intention not to pay under that contract. So, also, for aught that appears, if he had merely acquiesced in the view taken by appellee of that provision, it would have accepted the implications referred to in Law v. The People, above mentioned. Butin any case the count is defective in not averring that any deceit was practiced by appellee, or that appellant was, in fact, ignorant of any intention it entertained; that is, it does not expressly charge fraud, and the fact that the city continued to use the water after notice given, and with intention not to pay for it under the circumstances stated, does not necessarily imply or import fraud.

We have already observed that the seventh count avers no more than the breach of another agreement that was also inhibited by the Constitution, and not a tort.

Perceiving no error in the record, the judgment of the Circuit Court is affirmed. Judgment affirmed.


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    Herman Stearns et al. v. Joseph F. Cook.

      Snips — Exchange of Live Stock — Acceptance—Waiver—Damages—Instructions.

    In an action for an alleged breach of contract, whereby loss was sustained through the death of a Spanish jack received in a horse trade, it being claimed that his death was caused by his being ill-used by the defendant, in driving him to the house of the plaintiff, it is held: That the verdict for the plaintiff was contrary to the evidence, and that the instructions were erroneous, particularly in' not stating what would constitute an acceptance amounting to a waiver of defects.
    [Opinion filed May 25, 1888.]
    Appeal from the County Court of Vermilion County; the Hon. 1). D. Evans, Judge, presiding.
    Mr. W. R. Lawkbnce, for the appellants.
    Mr. J. B. Mann, for appellee.
   Pleasants, J.

Appellee brought this suit in assumpsit against appellants for an alleged breach of contract for the exchange of a Clydesdale horse, of plaintiff, for a buck-hoard set of harness, and a Spanish jack, of the defendants, to he made at the plaintiff’s • residence, which was between twenty and twenty-five miles distant from that of the defendants. The contract was made on the 17th of December, 1886, and the particular promise counted on, as stated in the declaration, was that the defendants would deliver the jack at the plaintiff’s house, “at a time when the roads were soft, so that the feet and limbs of said jack would not he injured by transferring him from the place of residence of said defendants to the house of plaintiff, and would deliver said jack in good condition; ” and the breach alleged is that they did not deliver him when the roads were soft, but when they were frozen; by means whereof his feet and limbs were greatly injured, and lie became lame, sick and disordered, and finally died. It is then averred that without any knowledge on his part of such lameness, sickness and disorder, the plaintiff delivered his horse to the defendants.

The second count is in substance the same, with the added averments that defendants received the plaintiff’s horse upon the express representation on their part that said jack had not suffered from being led over such hard and frozen roads, but had led freely and had not lagged any except as to the last mile; that plaintiff relied on said statements, and was ignorant of their falsity, and was thereby induced to part with his horse; that said representations were not true; that said jack did suffer, and was then suffering from being led over said ' hard and frozen roads, and had not led freely, but lagged for a long distance.

It is said the second count is in case. We think not. It is not averred that the representations set forth were fraudulently made or knowingly false. The averments in relation to them were unnecessary, but evidently made to explain the delivery of plaintiff’s horse, and meet the anticipated defense of waiver by acceptance of the jack. Appellants showed their understanding of it at the time by filing the plea of non assumpsit to the whole declaration.

It appears that the jack, with the other property of the defendants mentioned, was delivered to plaintiff at his house about five o’clock in the afternoon of December 20, 1886. lie had been led since six o’clock in the morning of that day, all the way from their residence, over roads that were frozen hard when they started, but thawed a little on the surface about noon, and so became somewhat slippery. There is no dispute as to his previous condition; all agree it was good. The testimony as to his treatment and appearance on the way, is conflicting. A number of witnesses who saw him at a point five miles from the plaintiff’s house and others nearer, say he was lagging, looked overdone and was whipped considerably to be kept going. Defendants themselves admit that he was at times obstinate, but say he required and received no more than an occasional touching up or tapping. Plaintiff was at home when they arrived, saw him, fed him and put him for the night in a shed made of hay and hanked up, twelve or fourteen feet long and eight or ten feet wide, with an opening on the east side four feet wide. The defendant Herman and his brother, who had brought him, stayed that night at plaintiff’s house. The next morning he went to the barn lot, saw plaintiff and asked him how the jack was, and plaintiff said he was all right and had eaten his feed all right, both night and morning. They stayed to breakfast, and soon afterward received from plaintiff his horse, without a word of complaint from him, and left.

The jack died about four weeks afterward, from what cause is by no means clear. Plaintiff and others testified that upon being led out of the shed on the morning after delivery he appeared stiff and worn out; that his feet were broken off all round; that he was sore and hardly able to walk, and that his hack and loins were welted up. They kept blankets on him, wrapped his logs with flannel and bathed them with pepper tea.

But he got no better. Tet he ate all his food for the first two or three days. An expert who saw him on the 22d of December, and concurs in this account of his appearance, says his pulse was not deranged, and he thought him not sick hut “simply worn out by fatigue or something of that kind.” Opinions differed as to the suitableness of the shed in which he was kept the first night He -was a Spanish jack, and therefore could not stand exposure to cold. Herman says there was no door, but only bars, at the opening on the east side, and that he told plaintiff the jack had been kept in a warm box stall, and would be liable to take cold in that shed. Hr. Swim, who had handled jacks for twenty years, and formerly owned this one and had often traveled him to and from fairs as far as twenty miles at a time, testified that he was a good traveler, could go thirty miles a day without injury, and that his feet were good; but that if lie were forced over frozen or slippery ground and whipped every few steps to make him go until he was fatigued, it would probably injure him; and that these jacks are sensitive to cold and should have a warm stall in winter.

Appellants, who are father and son, owned this jack together. The lowest estimate of his value in good condition was $250, and the verdict was for $150.

It is difficult to account for this result upon the supposition that the jury finally agreed upon any material question in the case. There was no dispute between these parties about the value of the jack. The difference on that point, and which was slight, was only between the witnesses, all of whom testified on the part of plaintiff. Defendants offered none. So much of their evidence as bore indirectly on that subject was in harmony with that of the plaintiff. It has not been suggested that ■ there is a circumstance in the case to excite a suspicion that the estimate above mentioned was too high. Plaintiff says that in the trade be took him at that estimate and believes he was fully worth it. Everything in the evidence that tends to change it, tends to increase it. The court, in each of ,tlie two instructions given for the plaintiff, directed the jury, if they found for him, to “assesshis damages at the amount the testimony shows the jack was reasonably worth,” and the almost irresistible inference from their verdict, in the light of the evidence, is that they did not find for him, rather than that they wilfully disregarded that direction. There was some evidence tending to show fault on his part in respect to the shed, above noticed, and other treatment of the animal, They may have found that the loss was due in part to the fault of each, and so found in part for and in part against each. If so it was upon a misunderstanding of the law, and resulting in injustice, ought not to stand; for the court should not assume to determine which party was wronged, thereby substituting its own finding for, that of the jury upon an issue submitted to theirs only.

Nor can it be well said that the error, if any, was in favor of tlie defendants. It may be that upon a right understanding of the law the finding would have been for them. They do not complain that the verdict was for too small an amount, but that it was for any at all.

They claim, and seem to have believed, that the jack was in good condition when delivered. They freely submitted him to the plaintiff’s observation, remaned there until after breakfast the next day, by which time the effect of his travel would naturally appear, showing no disposition to conceal anything, nor any haste to get away with the horse; and they charge his death to exposure, improper treatment, or other cause thereafter arising.

They further claim that, if not then in good condition, the plaintiff, accepting him after full opportunity for examination, thereby waived the defects — such, at least, as were visible. He saw, handled and fed him in the evening and in the morning and said he was all right. If he did not take him out of the shod before defendant left, it was because he did not see fit to do so. But now he claims that the bad condition was apparent enough when he was taken ont very shortly afterward; that his feet, his limbs, his movement and his looks, all visible, plainly indicated it. If these signs had not before been present and patent, the acceptance would not have been a waiver; but being present and patent to observation, the neglect to observe when he had full opportunity can not help him, and he should be treated as though he had observed them. His knowledge that the state of the roads over which the jack had been led was just what the contract recognized to be dangerous to the feet and limbs, especially required that he should examine the feet and limbs for signs of injury.

There was, then, some ground in the evidence for the defense of waiver. This was expressly presented in an instruction asked by defendants, which was not given as asked, bnt materially modified. We think it faulty in not stating what would constitute an acceptance to make it a waiver, and what defects it would waive.

The modification did not improve it as a legal proposition. It did not attempt to correct the fault here noticed, bnt materially changed what, with such correction, would have required no change. As asked, the instruction made proof of the acceptance of the jack after full opportunity for examination and delivery of the horse without any false representation by defendants, an absolute defense; while the modification left those facts, if proved, as circumstances to be considered by the jury in finding their verdict — an idea of the law which wo think was mistaken, and may have aided to produce the peculiar verdict found. Having refused to recognize the defense of waiver as presented by the defendants’ instruction, the court should have qualified the first one given for the-plaintiff, which entirely ignored it.

We are satisfied that a proper presentation of this case must have resulted in a different verdict — finding for the plaintiff with the damages proved, or finding for the defendants — and must so result if properly presented upon another trial.

Reversed and remanded.


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    Jacob Vogel v. Sylvanus Shurtliff et al.

      Mortgages — Foreclosure—Inverse Order of Alienation — Waiver of Buie —Contribution—Interest.

    The operation of the rule that, as between the grantees of different portions of mortgaged premises, the respective parcels are liable in the inverse order of their alienation, may be waived, limited or modified by the deed to the earliest grantee so as to bind such grantee and those claiming under . him. >
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of DeWitt County; the Hon. Cybus Epleb, Judge, presiding.
    Messrs. Gbaham & Monson, for appellant.
    Messrs. Mooke & Wakneb, for appellees.
   Pleasants, J.

This case, under the title of Brown and Emery v. Slmrtliff, was before us at May term, 1886, and an opinion therein was filed November 20, 1886, [24 Ill. App. 569),] reversing the decree and remanding the cause with directions for further proceedings therein, and afterward also before the Supreme Court under the title of Vogel v. Brown et al., reported in 120 Ill. 338. It will therefore be unnecessary to state here any more of the case than has since transpired.

Being remanded, the cause was further heard pursuant to the directions given on an agreed state of facts, and decree made, finding and decreeing that the complainant (Shurtliff) was entitled to contribution and to berejraid the sum of §685.66, with interest at six per cent, from January 2, 1882, when his land was sold; that Frank Adkisson was chargeable with one half of said sum, to wit, §158.27, which shoiild he a lien on his lot three, and his reversionary interest in lot four; that Andrew Ilutehin, by his covenants in his deed from Thomas B. Adkisson of lot five and his acceptance of the same, became chargeable with the part of the mortgage debt with which his grantor was personally chargeable (as between the widow and heirs) except §200 thereof, and that this amounted to §191.11, which should be a lien on that part of lot five which he had conveyed to Yogel; that Thomas B. Adkisson is chargeable with §267.11, which should be a lien on his reversionary interest in lot four; and of the costs one-half was charged to lot three, three-tenths to the reversionary interest of Thomas B. Adkisson, and two-tenths to the part of lot five conveyed by Ilutehin to Yogel.

The controversy now here, is between the parties holding respectively the several interests upon which Thomas B. Adkisson’s portion of the mortgage debt is charged by the decree. Leaving the other portion of that debt out of view, the case may he stated thus: Thomas B. Adkisson mortgaged his lot five and his reversionary interest in lot four, to secure the payment of $158.27. He then conveyed lot five to Andrew Ilutehin, and afterward his reversionary interest in lot four to O. II. Moore. Each of these interests is of sufficient value to pay the incumbrance in full, and the question is, whether only one, or both, and which, should be charged, and for what proportion of the debt.

There is no disagreement about the rule that, as between the grantees of .different ] arcels of mortgaged premises, their respective ¡ arcels are liable in the inverse order of their alienation by the mortgagor, and that it applies also to subsequent purchasers who have notice, actual or constructive. Iglehart v. Crane, 42 Ill. 261; Vogel v. Brown, 120 Ill. 388. Appellant having purchased from Hutchin, the earliest grantee of the mortgagor, and succeeded to his rights, claims that, under this rule, the parcel subsequently conveyed to Moore, being the reversionary interest in lot four, should be first charged. But the operation of this rule may be waived, limited, or modified by the terms of the deed to the earlier grantee, which will also bind those claiming under him. Briscoe v. Powers, 47 Ill. 447; 2 Jones on Mortgages, Secs. 1092, 1620,1625, and note 4; and the opinions in this case above referred to.

The deed from Thomas B. Adkisson to Hutchin contained, after the description of the lands conveyed, the following provision: “Said land being sold and this deed made and accepted subject to a certain trust deed or mortgage (describing the one here in question, and reciting in substance the provision of the partition decree for the sale of lot one, to pay the incumbrance, and these proceedings). After which ten acres is so sold and the proceeds so applied, then the said T. B. Adkisson shall be bound to further protect said Hutchin to the amount of §200 against said trust deed and no more, said Hutchin to pay any excess due thereon, over the proceeds of said ten acres and said sum of §200.” The sale of these ten acres did not yield enough to pay off the incumbrance, but left as T. B. Adkisson’s share of the deficiency the sum of §458.27, above stated as the mortgage debt. Appellee Moore, who assigns cross-errors, claims that, under this provision, the operation of the rule was not only waived by Hutchin, but that he assumed to pay, and accepted asa charge upon the lot he purchased, the entire amount of any deficiency that should remain after the application of the proceeds of lot one, looking only to the personal liability of his grantor for reimbursement to the extent of $200, if the deficiency should exceed that amount.

We agree that there is room for debate as to the true construction of this provision, but on the whole are inclined to think it was intended to be an absolute assumption by Hutchin of only the excess of such deficiency, if any there should be, over $200 ; that as to such $200 the operation of the rule was not waived, but that, besides whatever protection it might afford, he was to have also that of the personal covenant of his grantor, the mortgagor, which however did not, as to Hutchin, release lot four from the operation of the mortgage and rule. Had it simply subjected the land to the trust deed, the whole of lot five, together with T. B. Adkisson’s interest in lot four, would have been liable, pro rata for all the deficiency. Briscoe v. Power, supra. But it was not so provided. The real agreement is expressed in what follows the reference to the partition decree, and is that Hutchin is “to pay any excess due thereon over the proceeds of said ten acres (lot one) and said sum of $200.” When this deed was made the grantor retained his interest in lot four, which therefore would have been primarily liable for the whole mortgage debt, except as in said deed otherwise provided, and being confessedly of sufficient value would thus have protected the land thereby conveyed. It did otherwise provide; and the expression of Hutchin’s obligation to pay the excess of deficiency remaining over $200, is an exclusion of all obligation to pay the $200. It further expressly bound the "grantor to “ protect said Hutchin to the amount of $200 against said trust deed.” As between them we think these provisions amounted to a release of Hutchin’s land from the mortgage, to the extent of §200, and not a mere agreement to repay or reimburse him. He was not to pay it in the first instance, or at all. Moore, who afterward purchased of the same grantor another parcel of the incumbered lauds, with notice of the release, can not complain.

In their brief, counsel present a statement of the amounts paid, and by the decree ordered to be paid as charges upon the several lots and parcels of the mortgaged premises, and claim that the inequality of these amounts show the iniquity of the decree. But the mortgage debt was at first equally and equitably apportioned upon the several interests of the mortgagors respectively. Those who have paid are not here complaining, though their proportion seems to have been larger than that of Thomas B. Adkisson. As between the parties here contesting who claim under him, the inequality results from his agreement with Hutch in, of which Moore had notice when he purchased, and the conveyance of these parcels successively, whereby the one last conveyed became primarily liable for the whole debt, except as otherwise provided by said agreement, which is not inequitable to Moore.

The decree charges Thomas B. Adkisson with interest from the time the bill herein was filed. That was after the deficiency was known to exceed §200, which, therefore, was then due. Hutchin is in like manner charged with interest from that time. We see no wrong in this; and the costs are imposed in the same proportion.

Decree affirmed.