author: Pillsbury, P. J. Leland, J.

text:
    The Commissioners of Highways of the Town of Deer Park v. The Wrought Iron Bridge Company.
    1. Bridge between adjoining towns.—To give a right under the statute to one town to build a bridge at the joint expense of both, a piior contract between the commissioners of highways for the joint building of such bridge is an essential pre-requisite. No liability attaches to the commissioners refusing, even upon notice, to build without their previous consent, evidenced by contract.
    2. How CONTRACT SHOULD BE EXECUTED—MAJORITY OE COMMISSIONERS.—The contract for the building of such a bridge should be executed by a majority of the commissioners of each town, acting as a separate body. The statute does not contemplate a joint meeting of the two boards of commissioners, at which meeting a majority of the six can bind both towns. Bach town must be bound by the official action of its own hoard of commissioners.
    3. Contract not signed by majority.—In this case the contract was signed by only one member of the board of commissioners of one of the towns, and therefore such town is not bound by the contract. Nor does the fact that another commissioner of such town, after the completion of the work, signed the contract, create a liability against the town where none existed before. Commissioners of highways cannot bind their town by individual acts. They can only act as an official body, and when met for the transaction of public business.
    Appeal from the Circuit Court of LaSalle county; the Hon. Josiah MoRoberts, Judge, presiding. Opinion filed May 2, 1879.
    Mr. C. S. Eldredge and Mr. H. T. Gilbert, for appellants;
    contending that as the town made no provision for taxation to pay indebtedness, no indebtedness could lawfully be created, cited City of Springfield v. Edwards, 84 Ill. 626; Reynolds v. Shreveport, 13 La. An. 426; Goodrich v. Detroit, 12 Mich. 279.
    Hpon the rule of construction of the Constitution: People v. Draper, 15 N. Y. 543; People v. Morrell, 21 Wend. 584; Cooley’s Con. Lim. 88; Newell v. The People, 3 Seld. 98; State v. Johnson, 26 Ark. 281; Wolcott v. Wigton, 7 Ind. 48; People v. Lawrence, 36 Barb. 177; People v. Orange Co. 27 Barb. 575; Supervisors v. The People, 25 Ill. 183; People v. Starne, 35 Ill. 121; Wabash R. R. Co. v. Hughes, 38 Ill. 174; Town of Lebanon v. O. & M. R. R. Co. 77 Ill. 539; The People v. Trustees, 78 Ill. 136; Updike v. Wright, 81 Ill. 49; Wheeler v. Chicago, 24 Ill. 107.
    There is no inherent power in municipalities to levy taxes: Cooley on Taxation, 209; Chestnutwood v. Hood, 68 Ill. 132.
    An issue of bonds in excess of the constitutional limitation of five per cent, would be void: McPherson v. Foster, 43 Iowa, 48.
    Where a statute gives a new power and provides a way of executing it, the power can be executed in no other way: Mix v. Ross, 57 Ill. 121; Field v. The People, 2 Scam. 79; Middleport v. Ætna Life Ins. Co. 82 Ill. 562.
    Commissioners of highways can exercise only such powers as are conferred on them by law: Commissioners v. Newell, 80 Ill. 587; Brauns v. Peoria, 82 Ill. 11.
    They can bind the town only in the mode prescribed by the Statute: Dillon on Mun. Cor. 8 383; Pease v. Chicago, 21 Ill. 500.
    A person dealing with a municipal corporation is bound to learn the nature and extent of the authority of its officers: State v. Baltimore, 29 Md. 85; McDonald v. The Mayor, 68 N. Y. 23.
    The Illinois is a navigable river, and any bridge built so as to obstruct navigation would be liable to be removed: Columbus Ins. Co. v. Peoria Bridge Co. 6 McLean, 70; Jolly, v. Terre Haute Bridge Co. 6 McLean, 237; Holderman v. Beckwith, 4 McLean, 286.
    The laws of the United States upon the subject of commerce are supreme: Sinnot v. Com’rs, 22 How. 227; Gibbons v. Ogden, 9 Wheat. 210.
    Mr. E. F. Bull, for appellee;
    that all that is required of town officers is a substantial compliance with the law, and the presumptions are in favor of their official acts, cited The People v. The Auditor, 2 Scam. 567; Ballance v. Underhill, 3 Scam. 453; Todemier v. Aspinwall, 43 Ill. 401.

      Commissioners of highways are a quasi-corporation: Com’rs. of Rutland v. Com’rs of Dayton, 60 Ill. 58.
    Navigability of the Illinois river constitutes no defense to this action: Com’rs of Rutland v. Com’rs of Dayton, 60 Ill. 58; Dayton v. Rutland, 84 Ill. 279.
    Navigability is a question of fact, not of law: Chicago v. McGinn, 51 Ill. 266;
   Pillsbury, P. J.

Action of assumpsit by appellee against appellant and the commissioners of highways of the Town of Utica, brought upon a contract alleged to have been made on the 25tli day of May, 1876, by the commissioners of the towns of Deer Park and Utica, jointly, with the appellee, by which the appellee was to build a bridge across the Illinois River, on the line between the towns, for the sum of $17,400.

The declaration avers performance by the appellee, and refusal to pay by the commissioners.

The appellant filed the general issue and a plea denying the execution of the contract, both verified by affidavit, and several special pleas, to which a, demurrer was sustained. Upon a trial the appellee recovered a judgment for the amount claimed with interest, and the commissioners of Deer Park appealed.

The record shows that on the 2nd day of February, 1876) the commissioners of both towns met, and a motion was made that the commissioners of highways of Deer Park enter into a contract with the town of Utica to build such bridge, which motion was lost. After this action the commissioners of highways of Utica, with J. Shaugnessy, one of the commissioners of Deer Park, held several meetings, and served notices upon R. B. Williams and Nelson Willey, the other two commissioners of Deer Park, to meet with them, which they steadily refused to do, until the commissioners of Utica had advertised for proposals to build the bridge. At the time the proposals were submitted, all were present, and the bids taken under advisement.

From this time no more joint meetings were held, and no contract was entered into by the commissioners of Deer Park. On the 25th of May, however, the commissioners of highways of Utica executed the contract sued upon, and Shaugnessy signed it as commissioner of Deer Park. On same day the appellee executed a contract to the commissioners of Utica, reciting the contract in suit, and the fact that it had been signed by only one of the commissioners of Deer Park, and guaranteeing that the town of Utica should not be called upon to pay more than one-half of the cost of the bridge; and in case Deer Park refused to pay for one-half the bridge, then the commissioners of Utica were to sue those of Deer Park, to recover their proportion of the cost of the bridge, and that the bridge company would pay one-half of the costs and attorneys’ fees in prosecuting such suit.

After the making of these contracts, and before any work was done upon the bridge under the same, the two commissioners of Deer Park who. had not joined in the contract, together with the supervisor and town clerk of said town, served a written notice upon the commissioners of Utica and the appellee, that no contract would be entered into or liability incurred or recognized on the part of Deer Park in the construction of said bridge. The appellee, however, went on and completed the bridge under said contract, and it is conceded that up to the time the work was done and the money due under the terms of the agreement, that a majority of the commissioners of Deer Park took no part in building the bridge in question, or the letting of the contract, except as above set forth.

After the completion of the bridge, for some reason not shown in the record, P. B. "Williams, one of the commissioners of Deer Park, who up to this time had, on behalf of his town, steadily opposed the creating of any liability against his town, acting in conjunction with Shaugnessy, passed resolutions reciting the fact of the neglect of the commissioners of Deer Park to join in building said bridge, or to enter into a joint contract for its erection, and accepting said bridge as a part of the public highway, pledging the town to maintain its portioh of it, and ordering the supervisor and town clerk to issue bonds for the payment to appellee of one-half the contract price. Williams also, after said bridge was completed, attached his name to the contract of May 25th, 1876, and it is upon this execution of the contract that the alleged joint liability arises. This signing by Williams was, so far as the record discloses, without any consultation with or authority from his co-commissioners.

The respective towns, prior to May 25th, 1876, held an election under section 112 Ch. 121, Bev. Stat. 1874, which resulted in a vote in favor of “borrowing money to build a bridge,” but no amount was specified, or time in which payment should be made, nor was any provision whatever made by either town for the payment thereof by appropriate taxation.

The above facts are all that are essential to state to a proper understanding of the case, and the question arises whether upon such facts a legal liability arises against the town of Deer Park.

Section 108 of the road and bridge act of 1874, provides that “ For the purpose of building and keeping in repair such bridge or bridges, it shall be lawful for the commissioners of highways of such adjoining towns or counties to enter into joint contracts, and such contracts may be enforced in law or equity against such commissioners jointly, the same as if entered into by individuals, and such commissioners may be proceeded against jointly by any parties interested in such bridge or bridges for any neglect of duty in reference to such bridge or bridges, or for any damages growing out of such neglect.”

By the 109th section: “If the commissioners of highways of any of such towns, after reasonable notice in writing from the commissioners of highways of any other such towns, shall neglect or refuse to build or repair any such bridge, when any contract or agreement has been made in regard to the same, it shall be lawful for the commissioners so giving notice to build or repair the same, and to recover by suit one-half (or such amount as shall have been agreed upon), of the expense of so . building or repairing such bridge, with costs of suit and interest from the time of completion thereof from the commissioners so neglecting or refusing.”

This statute is clear, that to give a right to one town to build a bridge at the joint expense of both, a prior contract between the commissioners of highways for the joint building of such bridge is an essential prerequisite; that no liability attaches to the commissioners refusing even upon notice to build without their previous consent evidenced by contract. The commissioners of highways of each town have the right to judge of the necessity of a bridge, and the ability of their town to raise the means by taxation to pay the amount necessary for the purpose of completing it.

If the commissioners of a large and wealthy township could enter into a contract for the construction of a bridge across a stream dividing the towns, and then collect the one-half from the adjoining town, it would be in their power to bankrupt the latter when of not sufficient ability to bear a burden thus imposed. The contract for the building such bridge should in our opinion be executed by a majority of the commissioners of each town acting as a separate body. That the statute does not in this instance contemplate a joint meeting of the two boards of commissioners, at which meeting a majority of the six can bind both towns. That while the contract is joint and binding upon the two towns jointly, yet each town must be bound by the official action of its own board of commissioners.

In this case it is admitted that only one of the commissioners of highways of Deer Park executed the contract in suit until after the bridge was completed, and that the commissioners of said town, or a majority of them, refused to enter into such contract or to incur any liability upon behalf of their town respecting such work.

As a majority of the commissioners of Deer Park did not, prior to the commencement or completion of the work, enter into any contract binding upon their town, we fail to see how the town became bound to the appellee, or wherein there was any privity of contract between them.. Did then the action of the commissioner Williams, in signing said contract after the completion of the work, create a legal obligation against his town? We think it did not. Up to this time no obligation, as we have seen, rested upon the town to pay for the bridge. The bridge had not been constructed under the supervision of its officers. The bridge had been built by the appellee, relying upon its contract with the commissioners of Utica.

That they both knew the contract was not binding upon Deer Park, is evident, from the fact that the commissioners of Utica would not themselves contract for the letting of the work to appellee until it had given them a guaranty that their town should not be liable to the appellee for more than one-half the cost thereof.

There being then no valid prior obligation upon the part of Deer Park, we are of the opinion that Williams could not of himself, by simply signing as one commissioner, create a liability where none existed before. The commissioners of highways, it is apprehended, cannot bind their towns by individual acts; there must be concert of action by at least two of them when met for the transaction of public business. The board of commissioners being a quasi corporation, Town of Rutland v. Town of Dayton, 60 Ill. 58, can only act as an official body. Boughton v. McDonough County, 84 Ill. 392. They are public agents, and can bind their principal only when exercising the powers vested in them by the statute, and in the time and manner designated by the law.

The individual act of Williams, therefore, in executing the contract with appellee after the bridge was built, thereby endeavoring to create a privity of contract wheremone existed previously, was invalid, and created no legal obligation against his town.

These views render it unnecessary to notice the point made, that the Constitution, Sec. 12, Art. IX., prohibited the issuing of bonds under the vote of the town to borrow money to build a bridge, because no provision was made by the town for the payment of the same by appropriate taxation at or before the time of creating such indebtedness. Whether this be so or not, which we do not now determine, it would -seem that the vote of the town was only a delegation of power to the commissioners of highways to enter into a contract to build a bridge, and order bonds to be issued as the work progressed for the payment thereof, thereby creating an indebtedness upon the town, as contemplated by the vote. The commissioners had the power, notwithstanding the vote, to determine whether they would enter into a contract with the appellee. z The vote of the town did not establish a privity of contract between it and the appellee, and until a valid contract was made, the appellee had no right under such vote that it could enforce at law.

This action rests upon contract, and to entitle the appellee to recover it must show an agreement executed by the' commissioners of highways in such manner as will make the judgment recovered a charge upon the town. In our opinion no such contract is shown to exist in this case.

The judgment must he reversed and the cause remanded.

J udgment reversed.

Leland, J.

having passed upon some of the questions here involved in another proceeding relating to this same bridge, took no part in the decision of this case.


source: Caselaw Access Project

author: Sibley, J.

license: Public Domain

text:
    B. R. Mosher et al. v. Stephen Rogers.
    1. Pbomissoby note—Defense—Evidence undeb.—Appellants being sued upon a promissory note, pleaded; that in consideration of procuring appellee a certain situation, he agreed to receive in satisfaction of the note, shares of stock in the Enameling Co. and some lots then held by the Improvement Association; that the situation was procured, and the shares of stock and deed of the lots tendered to appellee. Issue was joined upon these pleas and upon the trial appellants offered evidence tending to show a chain of title iroux the government to the Improvement Association of the lots tendered, which evidence was excluded by the court. Held, that under the issues It became material for appellants to show a good title to the land in the Association, and the offered evidence should have been admitted.
    2. Right of cobporation to hold land.—Held, that the right of the Association to hold real estate being prohibited by statute, was one with which appellee had nothing to do, he having agreed to accept the lots of the Association it did not become him to dispute its right to make the conveyance.
    Appeal from the Circuit Court of LaSalle county; the Hon. Josiah McRoberts, J udge, presiding. Opinion filed May 2, 1879.
    Mr. E. F. Bull and Mr. A. W. Hard, for appellants;
    in support of the sufficiency ot defendant’s plea, cited Stricklin v. Cunningham, 58 Ill. 293; Gridley v. Bane, 57 Ill. 529; Young v. Ward, 21 Ill. 223; Easter v. Minard, 26 Ill. 494.
    The evidence offered tended to support the issues formed under the pleadings, and should have been admitted: Davis v. Hoxey, 1 Scam. 406; Phelps v. Jenkins, 4 Scam. 48; Reese v. Henck, 14 Ill. 482; Smith v. Gillett, 50 Ill. 290; Seeley v. Porter, 53 Ill. 102; Crowley v. Crowley, 80 Ill. 469; Hugh v. Cook County Land Co. 73 Ill. 23.
    Mr. G. S. Eldredg-e, for appellee;
    argued that the plea presented no defense to the note, and cited Neely v. Lewis, 5 Gilm. 31; Moss v. Riddle, 2 Pet. 277; Warrell v. Munn, 1 Seld. 229; Walker v. Crawford, 56 Ill. 445; Wimple v. Kesoph, 15 Minn. 440; Lane v. Sharpe, 3 Scam. 565; Wood v. Price, 46 Ill. 435; Emory v. Mohler, 69 Ill. 221; Merchants’ Ins. Co. v. Morrison, 62 Ill. 242; Foy v. Blackstone, 31 Ill. 538; Snyder v. Griswold, 37 Ill. 216; Jones v. Albee, 70 Ill. 34; Conwell v. S. & N. W. R. R. Co. 81 Ill. 232; Mason v. Burton, 54 Ill. 350; Cease v. Cockle, 76 Ill. 484.
    The Association had no authority to lay out and plat an addition to the village of Millington; it was ultra vires, and all executory contracts founded upon it necessarily void, and the plat was properly excluded: Carroll v. City of East St. Louis, 67 Ill. 568; Cin. Mut. Ins. Co. v. Rosenthal, 55 Ill. 85; Starkweather v. Am. Bible Soc. 72 Ill. 50; Bank of U. S. v. Owen, 2 Pet. 538.
    If a part of the consideration be illegal, the entire contract is void: Henderson v. Palmer, 71 Ill. 579; Craft v. McConnoughy, 79 Ill. 346; Winston v. McFarland, 22 Ill. 38.
    The statute limits the power of corporations; they can take nothing hv implication: Charles River B. Co. v. Warner B. Co. 11 Pet. 543; Newhall v. Galena R. R. Co. 14 Ill. 273; Petersburgh v. Metzker, 21 Ill. 205; Penn. R. R. Co. v. Canal Com’rs, 21 Pa. St. 9; President, etc. v. McConnell, 12 Ill. 138; Caldwell v. City of Alton, 33 Ill. 416; Mix v. Ross, 57 Ill. 121.
    All contracts to promote the exercise of unauthorized powers are void, as being against public policy: Miller v. Goodwin, 70 Ill. 659; City of Alton v. Ins. Co. 75 Ill. 566; People v. Dupuyt, 71 Ill. 651; Metropolitan Bank v. Godfrey, 23 Ill. 604; People v. Board of Trade, 45 Ill. 112; East Anglian R’y Co. v. Eastern Counties R’y Co. 7 Eng. L. 505; B. & O. R. R. Co. v. Wheeling, 13 Gratt. 75; Clark v. Farrington, 11 Wis. 323; Barret v. A. & S. R. R. Co. 13 Ill. 512; Bissell v. Mich. S. R. R. Co. 22 N. Y. 265; Bank of Peru v. Farnsworth, 18 Ill. 563.
   Sibley, J.

This suit was brought by Stephen Eogers against the appellants, upon a promissory note, as follows:

“ $2,000. Millington, III., Dec. 13, 1875.
“ One year af'tc :• date, for value received, we promise to pay Stephen Eogers, or order, two thousand dollars, with interest at ten per cent. It is further agreed, that should the payee so elect, he may at any time within six months from-date, by the delivery of this note, receive twenty shares of the stock of the Enameling Company of Chicago, now held by the Citizens’ Improvement Association of Millington, together with one lot with each share as now given by said Association, said lots to be selected from the lots in said Association’s addition to Millington, not now selected by other subscribers to stock.
“ B. B. Mosher,
“L. C. Carlow,
“ Buddulph & McMath,
“ S. Potter,
“Joseph Jackson,
“ W. M. SwEETLAND, “John Jones.”

The defendants in the court below filed several pleas. Demurrers were sustained to pleas two and three, and the defendants abided by them. To plea four the plaintiff replied severally, upon which issues were joined and a trial had that resulted in a verdict for the plaintiff, and damages assessed at $2,512.21. From the judgment rendered upon that verdict, the defendants appealed to this court.

Ho error having been assigned to the decision of the court sustaining the demurrers to pleas two and three, their sufficiency, therefore, cannot now be considered.

The refusal of the court to allow the defendants on the trial to refile the plea of general issue, after having been once withdrawn, even if assigned for error, was a matter of discretion, in the exercise of which no reason is perceived for interfering. •

The remaining errors complained of (except that of overruling the motion for a new trial) relate to the refusal of the court to admit competent evidence offered by the • defendants, and the final exclusion of all that had been admitted for them.

The fourth plea sets up that the only cause of action was the note described in the declaration. That the money for which the note was given was paid to and used by the Enameling Company, of Chicago, located at Millington, in the county of LaSalle, and no part of it received by, or appropriated for the benefit of the defendants, or either of them. That after the execution of the note the plaintiff agreed with the defendants, that if they would secure to him a situation in the Enameling Company at a salary of $1,500 a year, when'the works of the company were completed, he would then take $2,000 in the capital stock of that company held by the Citizens’ Improvement Association, of Millington, and one lot with each share of stock of $100 in the Association’s addition to the town of Millington, in full satisfaction and discharge of the note declared on. That the defendants, acting upon this agreement, did afterward secure to the plaintiff the situation he desired;" and when the works of the Enameling Company were finished, the plaintiff, pursuant to the arrangement, entered into the employment of the company at a salary fixed at $1,500 per year, and selected the lots in the addition laid off by the Improvement Association to the town of Millington, and agreed to surrender the note sued on, and take the stock in the Enameling Company. That the lots • so selected had been held by the Improvement Association of Millington, for the plaintiff, together with $2,000 worth of stock in the Enameling Company, subject exclusively to his order and control, and by means of which arrangement the defendants were entitled to have their note surrendered and canceled.

There were quite a number of replications filed to this plea, and it is proper here to remark, that if the plea was defective, as appellee now insists, he should have stood by his demurrer to it and not taken issue upon the facts alleged, for by so doing he waived any right to question its sufficiency.

After the introduction of considerable testimony tending to prove the agreement stated in the plea, the defendants offered in evidence a plat of an addition by the Improvement Association to the town of Millington, and proposed to follow up the evidence by showing a regular chain of conveyances from the government to the Improvement Association for the land covered by the plat, but the court refused to admit the evidence. We are at a loss to discover a sufficient reason for excluding this proof. Under the issues it became material for the defendants to show that the Citizens’ Improvement Association possessed a title to the lots which it was alleged the plaintiff had agreed to take in part payment of the note, and why they were not permitted to prove that fact is not satisfactorily explained.

The idea suggested, that the Improvement Association being a corporation organized under the general law for the purpose of encouraging manufacturing interests, without any pecuniary profit, was dealing in real estate to a greater extent than authorized, is more plausible than sound.

For if the plaintiff had agreed to take these lots. of the Improvement Association, and made the selection as stated in the plea, it did not become him to dispute its right to make the conveyance, since with a full knowledge of the Association’s legal capacity to hold and convey real estate, he had agreed to take the lots in the Association’s addition to the town of Milington, without any reservation as to its power to make a conveyance that would pass title. Besides,as the Association was authorized to hold real estate to a certain extent, if the fact as to whether it had exceeded the limits prescribed, could be inquired into upon a collateral proceeding (which is not conceded), the question should have been submitted to the jury upon proper instruction by the court.

As the evidence offered by the defendants tended to prove the issues formed by the parties, we are of opinion that the court erred in not admitting the testimony so offered, as well as in excluding all that had been introduced from the consideration of the jury. Merricks v. Davis, 65 Ill. 319; Hutt v. Bruckman, 55 Ill. 441, and cases referred to upon this subject-judgment reversed and cause remanded.

Judgment reversed.


author: Per Curiam.

text:
    Mary L. Pratt v. James Pratt et al.
    Decbee against pabties not served.—It is erroneous to render a decree affecting the interests of parties who are not served with process and are not before the court. The decree in this case being in part against persons over whom the court had not jurisdiction, it is reversed as to that portion, and affirmed as to the remainder.
    Appeal from the Circuit Court of McHenry county; the Hon. C. W. Upton, Judge, presiding. Opinion filed May 2, 1879.
    Mr. H. B. Hurd and Mr. Frank Baker, for appellant;
    that a complainant cannot state one case in his bill and make out a different case in proof, cited Ohling v. Luitgens, 32 Ill. 23; De-Leuw v. Neely, 71 Ill. 473; Downing v. Tuck, 76 Ill. 71; Morris v. Tillson, 81 Ill. 607; Berger v. Peterson, 78 Ill. 633; Rowan v. Bowles, 21 Ill. 17; McKay v. Bissett, 5 Gilm. 499.
    Testimony of one of the defendants as to admissions made by a deceased party, should not have been admitted: Rev. Stat-1874, 488; Connelly v. Dunn, 73 Ill. 218; Brown v. Hurd, 41 Ill. 122.
    Where a party acquires title by purchase at sheriff’s sale, with a parol agreement to hold the title as security for a loan of money paid to relieve the land from the judgment lien, and to re-convey when the money is refunded, the deed will be treated as a mortgage: Reigard v. McNeil, 38 Ill. 400; Smith v. Doyle, 46 Ill. 451; Kloch v. Walter v. 70 Ill. 416; Smith v. Knoebel,82 Ill. 392; Strong v. Shea, 83 Ill. 575; Smith v. Cremer, 71 Ill. 185.
    A subsequent mortgagee is entitled to precedence of advances made by a prior mortgagee who has notice of the second mortgage: Frye v. Bank of Ill. 11 Ill. 367.
    Record of subsequent mortgage is notice to prior mortgagee: Spader v. Lawler, 17 Ohio, 371; Bank of Montgomery, appeal, 36 Pa. 170; Ladue v. D. & M. R. R. Co. 13 Mich. 380.
    Lampson having conveyed the land with full covenants of warranty, was interested to defeat the Pratt mortgage, and his testimony should not have been received. His discharge in bankruptcy did not remove the objection: Rev. Stat. 1874, 488; Connully v. Dunn, 73 Ill. 218; Boverton v. Byrne, Adm’r, 72 Ill. 466; Whitmer v. Rucker, 71 Ill. 410.
    A mortgagor is not liable for rents and profits while in possession of the mortgaged premises: Renard v. Brown, 1 West. Jur. 486; Miss. V. & W. R’y Co. v. U. S. Ex. Co. 81 Ill. 534; O’Brien v. Fry, 82 Ill. 274; Stephens v. Ill. M. & F. Ins. Co. 43 Ill. 331.
    In equity, a party to avail himself of the Statute of Limitations must plead it, so that the other party may have opportunity to account for the delay; Trustees v. Wright, 12 Ill. 432; Zeigler v. Hughes, 55 Ill. 289.
    Mr. A. B. Coon and Mr. B. FT. Smith, for appellees,
    Worthington and Lyon; that being Iona fide purchasers of parts of the mortgaged premises, the inortgage is void as to them, cited Miller v. Marckle, 21 Ill. 152; Reed v. Noxon, 48 Ill. 323.
    Mr. E. R. Smith and Mr. E. F. Allen, for appellee Pratt;
    that fraud maybe shown by circumstances, cited Carter v. Gunnels, 67 Ill. 270.
    The notes and deed having been given in 1858, they were barred by the Statute of Limitations after sixteen years: Pollock v. Maison, 41 Ill. 516; Harris v. Mills, 28 Ill. 44.
    A person purchasing land pendente lite, does so at his peril, and is as much bound by the results of the lit'gation as if he had been a party to it from the outset: Inloe’s Lessor v. Henry, 11 Md. 524; Salisbury v. Benton, 7 Lans. 353; Harrington v. Slade, 19 Barb. S. C. 162; Tilton v. Cofield, 9 Chicago Legal News, 139.
    Equity can only recognize and enforce a lien which is created by the parties: Dewey v. Eckert, 62 Ill. 218.
    A verbal agreement to convey real estate to another, is within the Statute of Frauds: Stephenson v. Thompson, 13 Ill. 190; Perry v. McHenry, 13 Ill. 233.
    Hor will the purchaser under such circumstances be treated as agent of the grantor: Wilson v. McDowell, 78 Ill. 514.
    A purchaser under foreclosure of a senior mortgage acquires by his deed color of title in good faith, and such deed is a bar to foreclosure under a junior mortgage: Mason v. Ayers, 73 Ill. 121.
    Statements of the mortgagor are admissible against himself: Reed v. Noxon, 48 Ill. 323.
    Declarations of a party in possession are competent as against those claiming under him; Dodge v. Freidman’s S. & T. Co. 9 Chicago Legal News, 139; Eich v. Sievers, 73 Ill. 194.
    He who enables the commission of a fraud must suffer: City of Peoria v. Johnston, 56 Ill. 45; Rawson v. Fox, 65 Ill. 200; Lewis v. Lanphere, 79 Ill. 187.
    Hnder the prayer for general relief, the court may grant that which is not specifically prayed for: Isaacs v. Steel, 3 Scam. 97; McNab v. Heald, 41 Ill. 327.
    An account may be taken of rents and profits in a suit to set aside a conveyance for fraud: Hadley v. Morrison, 39 Ill. 392; Fitzsimmons v. Allen, 39 Ill. 440.
    Mr. J. H. Maybouene, for appellee, Miller.
   Per Curiam.

There were three cases tried together by consent in the court below, and one decree rendered. Mary L. Pratt, in her individual capacity, or as administratrix of the estate of Philemon B. Pratt, deceased, was interested in each • one of them, and appealed to this court. The case of James Pratt, complainant, v. Mary L. Pratt et al., was a creditor’s bill, and as a part of the relief claimed in that case the court found:

That Russell Grimes, at and before March 10, 1862, was largely indebted to said James-Pratt, and suit was pending therefor, which P. B. and Mary L. Pratt knew. That James Pratt recovered a personal decree against Russell Grimes July 27, 1872, for $8,500.75 and $253.35 costs, and execution was issued and returned nulla bona, and that there is due thereon $11,988.60. That May 1,1858, Russell Grimes made and delivered to Mrs. Pratt his two promissory notes, one for $1,250, due August 1, 1859, and for $250, due ¡November 1, 1860; and to secure the payment thereof on said day, executed and delivered, to J. B. Smith, trustee, a trust deed upon all of the west half of southwest quarter of said section 35, lying south of the Chicago and Algonquin road, then owned by said Grimes, and known as the “ Kern farmand that at the request of Mrs. Pratt said trustee advertised and sold said lands under said trust deed, August 18, 1877, to Abel C. Carpenter.

And among other things, ordered, adjudged and decreed:

That the said trust deed of Russell Grimes to J. B. Smith, for use of Mary L. Pratt, dated February 1,1858, and the trustee’s deed from said Smith to Carpenter, be set aside, annulled, vacated, etc., as against James Pratt.

The questions argued were mainly of fact, and it is not necessary to repeat the reasons urged on that subject.

We perceive no error in the conclusions to which the court below arrived, except as to the vacation and setting aside said trust deed and the trustee’s deed from Smith to Carpenter. As the question of fact , as to this branch of the case must be retried by the Chancellor in the court below, we only deem, it necessary to say now that neither the said J. B. Smith nor Abel E. Carpenter was served with process, nor otherwise before the court, so that it had jurisdiction of their persons.

For this reason, as they were parties in interest, it was erroneous to render the decree, or rather the portion of it on this subject, without making Smith and Carpenter parties; and for this reason only the portion of the decree which relates to the land aforesaid, and to the rights of the parties in relation to it, is reversed and the cause remanded, with directions to have said Smith and Carpenter made parties to the cause, and the rights of the parties interested therein ascertained and determined.

As this portion of the decree affects the interest of the said James Pratt, and that of the said Mary L. Pratt in her individual capacity, and not as administratrix, and does not affect the other parties except Smith and Carpenter and Mrs. Pratt, and is not so connected with the other matters adjudicated as to render it necessary to disturb other portions of the decree, said decree is in all other respects affirmed. And the-costs in this court are divided, so that Mary L. Pratt, as an individual and not as administratrix, pays one-half, and the said James Pratt the other half of the costs by them made, respectively. The other costs to be paid by appellant, Mary L. Pratt, as administratrix, or in her individual capacity, as case may be.

Reversed and remanded.


text:
    Amzi F. Jackson v. Francis Bry, use, etc.
    1. Suit on lost bond—Evidence.—In a suit upon a lost bond, evidence of the practice of the sheriff and others in respect to the form of bonds used by them on other occasions, is wholly incompetent to prove the contents of the bond in suit.
    2. Replevin bond—Measure of damages.—Although the fact that an article returned as replevied was never actually taken into custody because attached to the realty and mortgaged, may constitute no sufficient defense to a suit on the replevin bond, yet upon the question of damages this may be shown, and in such case the measure of damages would be the amount of the loss sustained by the execution creditor by the failure of the defendant to deliver the property at the time required; not what the property would have been worth if unaffected by infirmity or prior liens, but its value subject to any defects or incumbrances that existed at the time it was replevied.
    Appeal from the Circuit Court of LaSalle county; the Hon. Josiah McRoberts, Judge, presiding. Opinion filed May 2, 1879.

      Mr, G. S. Eldbedge, for appellant;
    that the replication only put in issue the fact of ownership, and hence evidence of the ionafides of such ownership was erroneously admitted, cited Wheeler v. McCorriston, 24 Ill. 40; Van Namee v. Bradley, 69 Ill. 299; Rev. Stat. 853.
    The plea of non est factum put in issue the execution of a joint and several bond, and the proof showed that one of the defendants did not execute the bond. The dismissal of the case as to such defendant without amendment of the declaration,
    did not cure the objection: Johnson v. Ackless, Breese, 91; Connelly v. Cottle, Breese, 364; Spangler v. Pugh, 21 Ill. 85; Van Court v. Bushnell, 21 Ill. 627; Crittenden v. French, 21 Ill. 598; Leahy v. Mandeville, 7 Crunch, 208; Ferguson v. Harwood, 7 Cranch; Taylor v. Riddle, 35 Ill. 567; Childs v. Laflin, 55 Ill. 156; Snell v. De Land, 43 Ill. 323.
    There was no sufficient evidence of the loss Or contents of the bond: Hazen v. Pierson, 83 Ill. 241; Rankin v. Crow, 19 Ill. 626; United States v. Bulton, 3 Mason, 464.
    The mill and appurtenant machinery were fixtures: Mason v. Fenn, 13 Ill. 529; Thielman v. Carr, 75 Ill. 385; Arnold v. Crowden, 81 Ill. 56.
    Evidence that the property was a fixture was competent in mitigation of damages: Dehler v. Held, 50 Ill. 491.
    Messrs. Bicholson & Snow and Mr. D. H. Penney, for appellee;
    that no demand before bringing suit is necessary, cited Peck v. Wilson, 22 Ill. 205.
    Under the issues joined it was proper to try the question whether the defendant obtained permission in good faith: Stevison v. Earnest, 80 Ill. 513.
    A verdict will not be disturbed where there is a contrariety of testimony, even 'though it may appear to be against the weight of evidence: O’Brien v. Palmer, 49 Ill. 72; Lowry v. Orr, 1 Gilm. 70; City of Peru v. French, 55 Ill. 317; C. & A. R. R. Co. v. Shannon, 43 Ill. 338.
    An officer of a corporation cannot take a lease from or become a contractor with the company: Post v. Russell, 10 Am. R. 5; Butts v. Wood, 37 N. Y. 317; Bulrum v. Schanck, 41 N. Y. 182.

      In an action on a replevin bond, an excuse that it is not in the power of the defendant to return the property, is not'a good plea: Buckmaster v. Beames, 4 Gilm. 443.
   Sibley, J.

The only cause of action in this case was to recover upon a lost bond alleged to have been executed on the first of April, 1875, by Joshua Horton, Sr., Amzi F. Jackson and Jacob H. Chappie, to Francis Bry, coroner of the county of LaSalle, for the use of Joseph and. George Whittier, in the penal sum of $2,000.

The condition of the bond stated, was that Horton having sued out a writ of replevin against Arthur McIntyre, sheriff of that county, for certain property which he held by virtue of a writ of attachment issued in. favor of the Whittiers and against the Brown and Horton Paper Company, should prosecute his suit with effect, and make return of the property replevied if return was ordered by the court.

The pleas chiefly relied on were first, non ■■est factum, sworn to by Jackson and Chappie, and a plea-setting up the fact that the goods replevied were the property of the plaintiff in the replevin suit, and that the merits of the case were not tried in that action. To plea four, averring an offer on the part of Horton to return the goods replevied to Rufus C. Stevens, then sheriff of the county, a demurrer was sustained upon grounds we think well taken, and therefore the court committed no error in that respect. Issues were made upon the other pleas, a jury waived, and a trial by the court, which found for the plaintiffs, and assessed the damages at $1,076.21; from that finding an appeal was taken to this court, and quite a number of errors have been assigned for setting aside the proceedings and judgment of the Circuit Court. Something over twenty separate causes have been pointed out for reversing the decision of that court. Although the ingenuity of counsel may conceive an unlimited number of reasons for his position, it cannot be expected that this court will take them up, one by one, and examine the fine-spun threads of interwoven discussion.

And this suggestion applies equally to many of the objections made on the trial of the cause before the circuit judge.

When a jury is waived the interest of the parties is not liable to be prejudiced by the admission of doubtful testimony, because it is to be supposed that the court, in rendering judgment, would consider such testimony only as was legitimate and proper to be introduced. We do not think the contents of the bond were sufficiently established by any competent evidence to justify a recovery upon it. No witness testified to its contents. Even the coroner who took it was unable to give the substance of what it contained. All he appeared able to say, was that he did not return the writ until he became satisfied the bond was a good one. He says that it was partly written and partly printed—the same as sheriffs used, except coroner ” was written over the word sheriff.”

The testimony introduced relative to the practice of sheriffs and others in respect to the form of bonds used by them, was wholly incompetent to prove the contents of the one in suit. The printed forms of Culver, Page & Hoyne may have been in general use. But how could that fact afford any light upon the subject of the contents of the particular bond described in the declaration? What the sheriff and the coroner may have done in other cases could not, by any known rule of evidence, be converted into proof of what actually took place in this particular proceeding.

As the question may arise upon another trial relative to the right of the appellant to show in reduction of the damages claimed that the paper machine returned as replevied was never actually taken into custody, but was so attached to the building as to form a part of the realty, which had been mortgaged for a large amount to third parties, and the mortgage had been foreclosed, the property sold by the master in chancery under a decree of the Circuit Court, and the title tranferred to the purchaser, therefore the plaintiff in the replevin suit was prevented from making a return of the machine as required by the writ of retorno.

This was held in Dehler v. Held et al. 50 Ill. 491, to be no sufficient defense to the action on the bond. But in such ease it was said the measure of damages must be “ the amount of the loss sustained by the execution creditor, by the failure of the defendant to deliver the property at the time required.” Hot what the property would have been worth if unaffected by infirmity or prior liens, but its value subject to any defects or incumbrances that existed at the time it was replevied. If an animal, was affected by disease, of which it afterward died, then no considerable loss could be sustained by not returning it according to the condition of the bond. If it was an inanimate species of personal property, which it is asserted the appellant in this case is estopped from denying, then the loss sustained would he its value, subject to any prior existing liens. This would be the measure of damages properly recoverable. If the property replevied was of no intrinsic worth to either of the parties claiming it, and the plaintiff in the action prevented from making a return by force of a superior right overriding all the opposing claims, to allow damages against the obligors in the bond for its full value without reference to that superior right, would be such an act of gross injustice that courts of law could not sanction.

The judgment will he reversed and the cause remanded, with leave to the appellee to amend his declaration.

Judgment reversed.


author: Pillsbury, P. J.

text:
    Elijah Gibbons v. Horace N. Goodrich.
    1. Reviving judgment—Statute oe Limitations.—Scire facias to revive a judgment is an action within the meaning of the Statute of Limitations requiring “ all actions,” etc., to be commenced within sixteen years, etc.
    2. Construction of limitation statutes—What statute applies. ■—When a cause of action has commenced to run under a limitation statute, the enactment of a new statute extending the limitation as to such causes of action will not affect rights already existing.
    Appeal from the City Court of Aurora; the Hon. Trane M. Annis, Judge, presiding. Opinion filed May 2, 1879.

      Messrs. Bicholson & Snow and Mr. W. T. Hopkins, for appellant;
    that scire facias is an action, cited Bonv. Law Die. title “ Scire Facias; ” Kertland v. Kribs, 34 Md. 93; Bryant v. Smith, 7 Coldw. 113; Greenway v. Dare, 1 Halst. 305; Connigal v. Smith, 6 Johns. 106; Potter v. Titcomb, 13 Me. 36; Chestnut v. Chestnut, 77 Ill. 346.
    Actions arising under a former limitation law are not affected by subsequent law: Rev. Stat. 1874, Chap. 131.
    Mr. A. G. McDole, for appellee;
    that to revive a judgment is not an action, cited Crisman v. The People, 3 Gilm. 354; Challenor v. Niles, 78 Ill. 78; 1 Puterbaugh’s Prac. 668.
    A special lawgiving remedies is never repealed by a general one: Sedgwick’s Con. of Stat. 98; Hume v. Gassett, 43 Ill. 297; Rawson v. Rawson, 52 Ill. 62; McDonough & Co. v. Campbell, 42 Ill. 490; The People v. Barr, 44 Ill. 198.
    "When acts can be harmonized by a fair construction, it will be done: Connor v. Ex. Co. 37 Ga. 397; The Distilled Spirits, 11 Wall. 356; Naylor v. Field, 5 Dutch. 287; Fowler v. Perkins, 77 Ill. 271.
   Pillsbury, P. J.

On the 10th day of May, 1878, a scire facias was sued out of the City Court of Aurora, to revive a judgment rendered in the Court of Common Pleas of said city on the 14th day of December, 1860. Appellant, the defendant in the judgment;’ being served with the scire facias, appeared, and pleaded that the writ of scire facias was not issued within sixteen years next after the rendition of the judgment. To these pleas the plaintiff below demurred, and the court sustaining the demurrer, ordered execution upon the judgment, and the defendant below appeals to this court.

Several questions of a technical character are made upon the record, but we shall only notice the action of the court in sustaining the demurrer to the pleas of the Statute of Limitations, as in our opinion this is decisive of the controversy between the parties.

By the common law of England, if the plaintiff failed to sue out execution within a year and a day after the judgment was entered,, an action of debt founded upon it was bis only remedy to revive this dormant judgment; but by the statute of IB Edw. I. Oh. 45, scire facias was provided for revival of .such judgments. This statute being passed long prior to the fourth year of James the First, and being of a general nature, is a part of the law of this State, and as such the remedy by scire facias to revive judgments has been, by both courts and the legislature, recognized as fully existing in our State.

And here it may be observed that only two remedies exist upon judgments—scire facias and debt. By the statute of 1827, debt and scire facias were treated as concurrent remedies, and the time within which either could be brought was twenty years. This section of that statute was incorporated into the revision of 1845, and became section five of the chapter entitled “Limitations.” This section provides that “judgment in any court of record in this State may be revived by scire facias, or an action of debt may be brought thereon within twenty years next after the date of such judgment, and not after.”

By an act entitled “an act to amend the several laws concerning limitations of actions,” approved Bov. 5, 1849, it is provided: “That all actions founded upon any promissory note, simple contract in writing, bond, judgment, or other evidence of indebtedness in writing, made, caused, or entered into after the passage of this act, shall be commenced within sixteen years after the cause of action accrued, and not thereafter; ” and by the fourth section thereof so much of the act? of 1845 as was in conflict therewith was repealed.

The time when the “ cause of action ” was deemed to have accrued under said act, was fixed by the act of 1859, Sess. laws, p. 125, at the date of the rendition of the judgment. These two last mentioned acts were in force at the time the judgment in question was rendered, and the inquiry is whether the act of 1849 repealed the act of 1845 so far as it relates to the proceeding by scire facias to revive judgments, and this depends upon the construction to be given to the words “ all actions ” in the former act.

If scire facias is an action within the meaning of that statute, there can be no doubt of such repeal.

Littleton, speaking of the subject of revivál of judgments, Sec. 505, says: “ But if after the year and day the plaintiff will sue a scire facias, to know if the defendant can say anything why the plaintiff should not have execution, then it seemetli that such release of actions shall be a good plea in bar. But to some seems the contrary, inasmuch as the writ of scire facias is a writ of execution, and is to have execution, etc. But yet, inasmuch as upon the same writ the defendant may plead divers matters after judgment given to oust him of execution, as outlawry, etc., and divers other matters, this may be well said an action.”

Lord Coke observes, in commenting upon this passage in Littleton, 290, b.: “ So as by the writ it appeareth that the defendant is to be warned to plead any matter in bar of execution; and therefore, albeit it be a judicial writ, yet because the defendant may thereupon plead, this scire facias is accounted in law to be in the nature of an action; and therefore a release of all actions is a good plea in bar of the same. And here it is to be observed that every writ whereunto the defendant may plead, be it original or judicial, is in law an action.”

In Pulteney v. Townson, 2 W. Blackstone, 1226, the question was whether scire facias was an action within the statute of 17 Car. 2, which required bail upon writs of error.

Gould, Blackstone, and Hares, J., held “That a scire facias was upon principle most clearly a personal action, and that they had the authority of Littleton, Coke and Holt to call it so; that the reason they give for it is unanswerable—the defendant has a power to plead to it.”

The Supreme Court of Maine in Potter v. Titcomb, 13 Me. 36, hold that the process of scire facias is in itself an action, and subject to the statute of that State abolishing special pleadings in civil actions. So in Goningal v. Smith, 6 Johns. 106, it is said that a sci.fa. is a new action, and requires a new warrant of attorney; also in New Jersey, Greenway v. Dore, 1 Hals. 305: “ Every scire facias is a new and independent action, referring to the former proceedings, but wholly distinct from them.”

In 34 Maryland, 93, Kirkland v. Kribs, the court say: “To the scire facias the defendant has the right to plead, and although generally termed a judicial writ, it is classed and recognized by all the authorities as an action.”

In Fenner v. Evans, 1 T. R. 267, a scire facias had been issued to revive a judgment entered prior to the act of 17 Geo. 3 C. 26, and execution had been taken out upon it. Upon a rule obtained to set aside the sci. fa. and execution, the question arose whether this proceeding was within the second section of that act, providing “ That no action shall be brought on any such judgment already entered, etc.” The court held that scire facias was an action within that section of the statute, and set aside both the writ and execution. While it is true that some authorities hold that for some purposes scire facias is not an action, we have not been referred to any holding that it is not included in a statute barring all actions ” within a certain time. We feel bound, therefore, by the authorities above cited, to hold that scire facias is included within the limitation act of 1847. Legislative action appears also to clearly indicate the intention of the law-making power to so consider it. Debt and scire facias being the only remedies upon judgments, have been treated by the legislature as concurrent, and in all the statutes of limitations no preference has been given to either one as to the time within which the action was to be brought.

In the limitation acts of 1827 and 1845, either would lie within twenty years; by that of 1849 as we have seen, both were included in the words all actions,” and by that of 1873, they were again extended to twenty years, by express terms.

It is hardly to be supposed that the legislature intended by the act of 1849, to allow a plaintiff to revive his judgment by scire facias at any time within twenty years, and not permit it to be used as an evidence of indebtedness in an action of debt upon it, unless such action should be commenced within sixteen years.

The object of the statute was not to discriminate between the two actions by which the plaintiff could obtain satisfaction of his dormant judgment, but was to fix a time when the presumption of satisfaction should be conclusive.

It is urged, however, that as the statute of 1873 extended the period of limitation to -twenty years, and as this act was passed while the statute of 1849 was running, and before the limitation had expired, the effect was to extend the time to the full term of twenty years before the bar would be complete.

As we have seen, the statute of 1849 commenced to run upon this judgment from the day of its rendition, and while that statute was repealed by an act of the twenty-seventh General Assembly, approved Apr. 4, 1872, Sess. Laws 1871-2, p. 556, yet by that act it is provided that such repeal “ should not be construed so as to affect any rights or liabilities, or any causes of action that may have accrued before this act takes effect.”

The act of 1873, fixing the limitation at twenty years, was passed by the twenty-eighth General Assembly, and by an act passed at the same session, entitled “ an act to repeal certain acts therein named,” Rev. Stat. 1874, p. 960, it is provided, that “ When any limitation law has been revised by this or the twenty-seventh General Assembly, and the former limitation law repealed, such repeal shall not be construed so as to stop the running of any statute, but the time shall be construed as if such repeal had not been made.”

Taking all these statutes into consideration, it is evident that as to causes of action already existing under the act repealed, such statute nevertheless continued to run, notwithstanding such repeal.

We are of the opinion, therefore, that the court erred in sustaining the demurrer to the pleas of the Statute of Limitation of sixteen years, for which error the judgment must be reversed and the cause remanded.

Judgment reversed.


text:
    Joseph Nolan v. David M. Vosburg, use, etc.
    1. Jury—Taking books, etc., on their retirement.—A jury cannot be permitted on retiring, to take books or papers not introduced as evidence on the trial, unless by consent of partios, and where the record fails to show that books of account, taken by the jury, were introduced as evidence, the error is sufficient ground for reversal.
    2. Set-oee—• Statute op Limitations—Instruction. — Where the defendant claimed a set-off, and that plaintiff’s demand was barred by the Statute of Limitations, an instruction on the part of the plaintiff to the effect that the defendant is liable if the jury believe the debt had not been paid, and that the defendant promised to pay as alleged, was erroneous, in that it excluded from the jury the consideration of defendant’s claim of set-off.
    3. Burden op proof.—An instruction that the burden of proof is upon the defendant to establish his set-off, although correct-in that particular, was held defective because it left out of view that the burden of proof in the first instance was upon the plaintiff to show the original indebtedness, and the new promise to take the case out of the operation of the statute.
    Appeal from the Circuit Court of LaSalle county; the Hon. Josiah Mo Roberts, Judge, presiding. Opinion filed May 2, 1879.
    Messrs. Richolson & Snow, for appellant;
    upon the question of new promise, cited Norton v. Colby, 52 Ill. 198; Mullett v. Shrumph, 27 Ill. 110; Ayers v. Richards, 12 Ill. 146; Parsons v. N. Ill. C. & I. Co. 38 Ill. 430; Keener v. Crull, 19 Ill. 189; Carroll v. Forsyth, 69 Ill. 127; Wachter v. Albee, 80 Ill. 47.
    Messrs. J. W. & E. S. Browne, for appellee.
   Sibley, J.

In the court "below, Yosburg for the■ use of Breese, recovered a judgment against Holán, the appellant, for $76.08, founded on an account for goods purchased by the latter of the former. The cause having originated before a justice of the peace, it will be presumed that issues were formed on the pleas of Statute of Limitations and set-off.

Breese, the person for whose use the suit was brought, testified on the trial in the Circuit Court, that he purchased the account of Vosburg against Nolan, which.amounted to $55.70, and in the spring of 1877 he exhibited this account to Nolan, who then promised to pay it, at the time claiming no set-off; but previously had spoken of charges against him, which was the reason they had not before settled. Very little other testimony was introduced on his part.

The promise to pay in the spring of 1877, as well as the correctness of the account, was denied by Nolan. He also on the trial claimed a set-off of many items, and introduced his books of account in evidence to support his testimony.

The bill of exceptions shows that the boobs of Vosburg were handed to the witness, Breese, but it does not appear they were offered in evidence, and the -contents of them are not anywhere stated. The Circuit Court, however, permitted the jury to take these books when retiring to consider their verdict. To this the appellant objected, and has here assigned for error the ruling of the court upon that subject. That it was obviously incorrect, leaves no room for doubt. The law is too well settled, that the jury cannot be permitted to take in its retirement books or papers not introduced as evidence on the trial (unless by consent), to admit of any question. To allow it would be opening the door leading to a loose and dangerous practice. Indeed it is not insisted by counsel for appellee that such a practice could be tolerated.

But it is intimated that these books were introduced in evidence, and that fact, for .some reason, is left out of the bill of exceptions. • The intimation, it is well known, can have no force in determining the question presented by the record. The bill states that it contains all the evidence offered on the trial by either party, and the books could be considered by the jury only as a portion of the evidence. Finding no record of their introduction, we must presume that none took place.

The errors assigned in respect to the plaintiff’s instructions given,, although calculated in some measure to mislead the jury, might not be sufficiently erroneous to justify a reversal on that account alone; still, it may not be improper to give them a casual notice.

1. “ If the jury find, from the evidence, that the defendant owed the plaintiff, on the 15th day of March, A. D. 1870, $55.70, and that it has not heen paid, and that within five years before this suit was brought the defendant recognized the debt as due, and expressly promised to pay it by a day named, it will be sufficient to prevent the bar of the Statute of Limitations, and the plaintiff will be entitled to recover said amount.”

2. “ If the jury believe, from the evidence, that the defendant purchased the goods of the plaintiff, as claimed, and did not pay for them at the time, but sets up payment by work as his defense, the' burden of proof is upon the defendant to satisfy the jury by a preponderance of the evidence; that he has paid amounts as claimed to the plaintiff on this particular account.” The first tells the jury that if the defendant, in 1870, owed the plaintiff $55.70, and that the same had not been paid, and that within five years the defendant promised to pay the debt, this was sufficient to prevent the bar of the Statute of Limitations, and the plaintiff would be entitled to recover.

The debt might not have been paid, and yet the defendant’s set-off should not have been entirely excluded from the jury.

The 2nd is correct enough in stating that the burden of proof was on the defendant to establish payment, except it puts out of view the fact that this burden of proof was in the first instance on the plaintiff to make out not only the original indebtedness, but also to establish the new promise in order to take the case from the operation of the statute.

The only other error it is thought necessary to consider, is that the verdict of the jury exceeds an amount authorized by the evidence. The sum due, according to the testimony of the real plaintiff at the time of the new promise claimed in April or May, 1877, was $55.70. Allowing interest on that amount at the rate of six per cent, for a little more than one year, could not by any possible calculation be $20.38, as the jury must have found. But it is suggested by counsel for appellee that the books of the plaintiff which the jury were permitted to take, showed a footing much larger against the defendant, than that sum. This, if true, affords an additional reason (provided any was needed), against allowing the books to be taken by the jury in the manner stated, since the plaintiff in interest had sworn that the amount due hy the books, both on his examination in chief and cross-examination, was between $50 and $60. He at least should be concluded by his own testimony of what appeared to be due the nominal plaintiff, and if the books had indicated a different footing, then the defendant should have had an opportunity to object to their introduction, or if admitted, to make his own comments upon the discrepancy.

For the errors indicated, the judgment will he reversed and the cause remanded for a new trial.

Judgment reversed.


text:
    Charles J. Borchsenius v. Anna Irgens.
    Statement—Set-off.—Appellee sued appellant on a note for $850. Appellant pleaded inter alia that the husband of appellee, being indebted to appellant, procured an insurance on his life, and delivered the policy to appellant to secure payment of said debt; that appellee, desiring to secure the insurance on her husband’s life, agreed with appellant to pay to him such sum as would be found due from her late husband to appellant upon a settlement of their partnership matters, in consideration that he would assign said policy to her, which was done, the money collected, and $850 paid to appellant, for which said note was given. Held, that the agreement constituted an original contract between appellant and appellee, and that appellant’s set-oif of the amount due from the deceased husband should have been allowed against the note.
    Appeal from the Circuit Court of LaSalle county; the Hon. Josiah McEobeets, Judge, presiding. Opinion filed May 2, 1879.
    Messrs. Bicholson & Snow for appellant.
    Mr. J. H. Fowler, Mr. Chase Fowler and Mr. John B. Rice, for appellee;
    that the partnership accounts between appellant and appellee’s deceased husband could only be settled in County Court, cited Rev. Stat. 1874, 120; Breckenridge v. Ostrom, 79 Ill. 71.
   Pillsbury, P. J.

This is an action of assumpsit commenced by the appellee against the appellant upon a promissory note, dated Feb. 29, 1876, and due one day after date, with ten per cent, interest, and for the sum of $850.

The defendant filed three pleas, the third of which averred, in substance, that Frederick Irgens, the husband of the plaintiff, a short time previous to his marriage with the plaintiff, was indebted to the defendant in about the sum of $600, and for the purpose of securing the defendant, said Irgens insured his life for $1,000, and delivered the policy of insurance to the defendant; that the defendant paid the premium bn said policy out of his own money, and soon thereafter said Irgens married the plaintiff, and about six mouths after said marriage, died, leaving the plaintiff his widow; that defendant still held said policy as security for said debt, the same not having been paid, and the plaintiff being desirous of obtaining said policy, for the purpose of having the same collected and paid over to her, she and the defendant agreed that they would select arbitrators who should examine and report how much Irgens would be indebted to defendant upon a settlement of their partnership matters, they having been partners in business, and upon an award being made the defendant should surrender such policy for her benefit, and out of the money arising therefrom she would pay such award. The plea further avers, that under such submission, which was in writing, signed and sealed, arbitrators were selected and an award made, finding that Irgens was indebted to the defendant in the sum of $486.-25; that such award was satisfactory to the plaintiff, who agreed to pay it; that thereupon defendant delivered said policy of insurance up, and the same was collected, and the amount paid to the plaintiff as specific allowance awarded by the' County Court; that she received as such allowance all the estate of her said husband; that the plaintiff, after the receipt of said money, paid over to the defendant the sum of $850, for which said note was given, concluding with an offer to set off said sum against the plaintiff’s claim upon the note.

To this plea the court sustained a demurrer, and defendant abided by the plea and went to trial upon the others.

It is urged in support of the demurrer, that as Irgens was a partner of the defendant, the partnership estate must be settled under the statute through the Probate Court, and the plaintiff could not submit the indebtedness to defendant to arbitration.

It appears by the averments of the plea, that the defendant held the policy of insurance as a pledge for the payment of such indebtedness. The defendant then had a lien upon it for the payment thereof that he could enforce, and if he surrendered such pledge at the request of the plaintiff, who it appears, well knew she would obtain all the money arising therefrom, such surrender would be a sufficient consideration to support a promise upon her part to pay said indebtedness.

So far as we can see, the contract was fairly entered into and based not only upon a valuable but adequate consideration, and between parties capable of contracting.

By her promise to pay out of the fund the indebtedness for which appellant held the policy, he allowed her to control its collection and receive the whole $1,000, being the amount of the policy, and she having turned over to him the sum of $850 of it, for which he gave the note, we are of the opinion that he has a proper set-off to the amount found to be due by the arbitrators regularly chosen by them.

The question whether this settlement would be binding upon the administrator of Irgens does not arise upon this record, therefore we do not pass upon it, but place our decision upon the ground that the contract alleged in the plea was an original one between the parties, and no legal objection appearing to it, the court should enforce it as made.

A point is made by the appellant that he should be allowed as a set-off the sum of about $100, consisting of a running account for goods obtained by and charged to Irgens, from the store of Irgens and appellant. So far as appears by this record, this account was due to the firm, and was included in the amount found due Borchsenius from Ivgens by the arbitrators, and as we hold that he is entitled to set-off the award under the contract between him and the appellee, this necessarily disposes of any account due from Irgens to him at the time of the award.

For the reasons above given, the judgment must be reversed and the cause remanded, with leave to the plaintiff to reply to the third plea, if she shall be so advised.

Judgment reversed.


author: Leland, J.

text:
    The Village of Warren v. John W. Wright.
    1. Municipal officers—Butt as to sidewalks.—Trustees of villages are bound to exercise ordinary care and diligence to keep the sidewalks in the village safe, and if in the exercise of this duty they bestow ordinary care and diligence, no liability arises, though the sidewalk may not be reasonably safe.
    2. Practice—Instructions must state the law correctly.—In cases where there may be doubt whether substantial justice has been done, each instruction of appellee or defendant in error must state the law correctly, or there should be a reversal.
    3. Notice of defects—Where sidewalk not constructed by city. —Where the sidewalk is constructed by the property owner, and not by the city, notice to the city of its condition is requisite to charge the city with liability.
    4. Instruction assuming fact proved .—An instruction which assumes that the defendant neglected to exercise ordinary care and diligence, when the fact of such neglect was contested, is erroneous.
    Semble—That it is improper to inform the jury in each instruction that the plaintiff claimed a certain amount, and to caution them as many times that they should be careful to allow no more.
    Error to the Circuit Court of Jo Daviess county; the Hon. John V. Eustace, Judge, presiding. Opinion filed Hay 2, 1879.
    Hr. J. W. Luke, for plaintiff in error;
    that the allegations and proof must correspond, cited Moss v. Johnson, 22 Ill. 633; Ill. Cent. R. R. Co. v. McKee, 43 Ill. 19; City of Bloomington v. Goodrich, 10 Chicago Legal News, 353.
    A city is only bound to see that its sidewalks are reasonably safe: City of Chicago v. McGiven, 78 Ill. 347; City of Rockford v. Hildebrand, 61 Ill. 155; City of Quincy v. Barker, 81 Ill. 300.
    Cities are liable only where the authorities know or by reasonable diligence may ascertain, that the sidewalks are out of repair, and when sufficient time has elapsed after notice, to make the necessary repairs: City of Peru. v. French, 55 Ill. 317; City of Chicago v. Scholten, 75 Ill. 468; City of Chicago McCarthy, 75 Ill. 602.
    Where the city did not construct the sidewalk, notice of its defect is requisite to create a liability: City of Rockford v. Hildebrand, 61 Ill. 155.
    The mere non-feasance óf a city in respect of such repairs, cannot be charged as willful neglect, so as to raise a liability for more than compensatory damages: City of Decatur v. Fisher, 53 Ill. 407; City of Chicago v. Langlass, 52 Ill. 256.
    A judgment will be reversed when there is no evidence to sustain a verdict, or when it is manifestly against the weight of evidence: Reynolds v. Lambert, 69 Ill. 495; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; Smith v. Slocum, 62 Ill. 354; City of Rock Island v. Vanlandschoot, 78 Ill. 485; City of Chicago v. McCarthy, 75 Ill. 602.
    Instructions should be consistent, and present the law of the case accurately: C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. & A. R. R. Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. 550; Ill. Cent. R. R. Co. v. Maffit, 67 Ill. 431; C. & A. R. R. Co. v. Mock, 72 Ill. 141.
    Messrs. D. & T. J. Sebean, for defendant in error;
    upon the question of the duty of a city to keep its sidewalks in repair and liability for neglect, cited City of Bloomington v. Bay, 42 Ill. 503; City of Joliet v. Verley, 35 Ill. 58; 42 Ill. 507; Schmidt v. N. & W. R. R. Co. 83 Ill. 405.
    As to notice qf defect: City of Rockford v. Hildebrand, 61 Ill. 155; City of Springfield v. Doyle, 76 Ill. 202; Alexander v. Mt. Sterling, 71 Ill. 366.
    As to setting aside a verdict where the evidence is conflicting, but not palpably against the weight of evidence: Carrigan v. Hardy 46 Ill. 502; Sherman v. C. &. M. R. R. Co. 48 Ill. 523; Belden v. Innis, 84 Ill. 78; C. & N. W. R. R. Co. v. Dement, 44 Ill. 74; Baker v. Robinson, 49 Ill. 299; Ehrich v. White, 74 Ill. 481; Melburn v. Schurin, 49 Ill. 69; Jacquin v. Davidson, 49 Ill. 82; Powell v. Feeley, 49 Ill. 143; Lalor v. Scanlan, 49 Ill. 152; C. F. R. & R. Co. v. Jameson, 48 Ill. 281; Bunker v. Green, 48 Ill. 243; C. & R. I. R. R. Co. v. Hutchins, 34 Ill. 108; C. & G. E. R’y Co. v. Vosburg, 45 Ill. 311; Allan v. Payne, 45 Ill. 339; Cadwell v. Sherman, 45 Ill. 348; Bruce v. Am. Ex. Co. 50 Ill. 201; Kuhnen v. Blitz, 56 Ill. 171; Chicago City R’y Co. v. Young, 62 Ill. 238; Bourne v. Stout, 62 Ill. 261; C. R. I. & P. R. R. Co. v. Reidy, 66 Ill. 43; DeClurg v. Mungin, 46 Ill. 112; Chapman v. Stewart, 63 Ill. 332; O’Reiley v. Fitzgerald, 40 Ill. 310; McCarthy v. Mooney, 49 Ill. 247; Young v. Bush, 48 Ill. 42; Neustadt v. Hall, 58 Ill. 172; Presb. Ch. v. Emerson, 66 Ill. 269; Chicago v. Garrison, 52 Ill. 516; Plummer v. Rigdon, 78 Ill. 222; Miller v. Balthasser, 78 Ill. 302; Wallace v. Wren, 32 Ill. 146; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; O’Brien v. Palmer, 49 Ill. 72.
    The verdict will not be disturbed even when against the weight of evidence, and such weight does not depend upon the number of witnesses: C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; Ill. Cent. R. R. Co. v. Gillis, 68 Ill. 317; Bishop v. Busse, 69 Ill. 403.
    It is for the jury to give credit to such witnesses as they may believe: Crain v. Wright, 46 Ill. 107; Wood v. Hildreth, 73 Ill. 525; Holcomb v. Tuttle, 79 Ill. 409; Foos v. Sabin, 84 Ill. 565; Dunning v. Fitch, 66 Ill. 51; Robinson v. Parish, 62 Ill. 130; Bishop v. Busse, 69 Ill. 403; Wiggins Ferry Co. v. Higgins, 72 Ill. 517.
    If substant'al justice has been done the verdict will not be set aside: Smith v. Schultz, 1 Scam. 490; Gillett v. Sweat, 1 Gilm. 475; Greenup v. Stoker, 3 Gilm. 202; Underhill v. Fake, 46 Ill. 50; Hall v. Lincoln, 46 Ill. 52.

      Where the evidence is so conflicting as to leave the question of right uncertain, the verdict will not be disturbed: Evans v. Fisher, 5 Gilm. 569; Pullian v. Ogle, 27 Ill. 189; St. Louis R. R. Co. v. Gilham, 39 Ill. 455; Stevens v. Brown, 58 Ill. 289; Chapman v. Burt, 77 Ill. 337.
    Even though the Appellate Court would be better satisfied if the verdict had been the other way: Bloom v. Crane, 24 Ill. 48; Scarritt v. Carruthers, 29 Ill. 487; Voltz v. Stephani, 46 Ill. 54; Varner v. Varner, 69 Ill. 445.
    Upon the question of damages: Ill. Cent. R. R. Co. v. Simmons, 38 Ill. 242; Chicago v. Fowler, 60 322; Chicago v. Langlass, 66 Ill. 361; City of Galesburg v. Higley, 61 Ill. 287; N. L. Packet Co. v. Bininger, 70 Ill. 571; Ill. Cent. R. R. Co. v. Ebert, 74 Ill. 399; Peoria Bridge Co. v. Loomis, 20 Ill. 236; Frink v. Schroyer, 18 Ill. 416; Chicago v. Jones, 66 Ill. 349; Moore, v. A. & S. R. R. Co. 10 Barb. 623; P. C. & St. L. R. R. Co. v. Thompson, 56 Ill. 138.
    That erroneous instructions will not always be ground for a reversal: Howard F. &. M. Ins. Co. v. Cornick, 24 Ill. 455; Hardy v. Keeler, 56 Ill. 152; Curtis v. Sage, 35 Ill. 22; Watson v. Wolverton, 41 Ill. 241; Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206; Chicago v. Hesing, 83 Ill. 204; Hazen v. Pierson, 83 Ill. 241; Foster v. C. & A. R. R. Co. 84 Ill. 164; McConnell v. Kibbe, 33 Ill. 177; Thompson v. Force, 65 Ill. 370; Hewitt v. Jones, 72 Ill. 218; Dishon v. Schorr, 19 Ill. 59; Elam v. Badger, 23 Ill. 498; N. E. F. & M. Ins. Co. v. Wetmore, 32 Ill. 223; Hall v. Groufe, 52 Ill. 421; Ryan v. Donnelly, 71 Ill. 101; Pierce v. Hasbrook, 49 Ill. 25; Town of Vinegar Hill v. Busson, 42 Ill. 45; Gilchrist v. Gilchrist, 76 Ill. 281; Warren v. Dickson, 27 Ill. 115; Morgan v. Peet, 32 Ill. 281; Stowell v. Beagle, 79 Ill. 526: Van Buskirk v. Day, 32 Ill. 206; Latham v. Roach, 72 Ill. 179; Murphy v. The People, 37 Ill. 448; Walker v. Collier, 37 Ill. 362.
    Erroneous instructions will not reverse if they appear to work no injury to the party complaining: Andes Ins. Co. v. Fish, 71 Ill. 620; P. A. & D. R. R. Co. v. Sawyer, 71 Ill. 361; Rankin v. Taylor, 49 Ill. 451; Coursen v. Ely, 32 Ill. 338; City of Alton v. Hope, 68 Ill. 167; Wiggins Ferry Co. v. Higgins, 72 Ill. 517; Sterling Bridge Co. v. Baker, 75 Ill. 139; Rice v. Brown, 77 Ill. 549; Reynolds v. Greenebaum, 80 Ill. 416.
    Giving or refusing instructions containing mere abstract propositions of law, is not error: Ryan v. Donnelly, 71 Ill. 100; Tuttle v. Robinson, 78 Ill. 332; Ill. Cent. R. R. Co. v. Swearingen, 47 Ill. 206.
   Leland, J.

This was an action on the case by appellee, against appellant, to recover damages for an injury caused by the fall of a sidewalk, through the alleged negligence of the latter.

On the south side of Main street, there was a sidewalk built in 1858 or 1859, by the then lot owner. The portion of the walk which fell was in front of two buildings, and of the space of about eight feet between them, the easternmost called Brand’s and the other Brink’s. There was a depression in the surface of the earth, by reason of which the portion of the sidewalk which fell was about seven feet above the ground. The depression had been filled in the street nearly up to the girders upon which the stringers rested. There was a stone wall parallel to and seven feet distant from the front walls of the buildings. The girders were five feet apart, and about two inches higher at the south ends than at the north, with their north ends resting on the top of the street wall, and their south ends inserted in holes in the walls of the buildings, except that the one girder which was in the space between the buildings, rested upon the top of a post. On the girders and at right angles with them, were four or five, probably four, 2x6 stringers to which the boards were nailed. The stringers were probably not nailed to the girders. Whether the post upon which the girder rested, was set upon a stone, stood upon the surface of the earth or was driven into it, does not appear. Bor does it appear whether the girder was nailed to it, nor whether the post was in any way braced or stayed. The end of the girder resting on the post, and of the one five feet east from it, which was in a hole near the west side of the Brand building, on May 11th, 1877, fell simultaneously, or possibly one of the supports may have given way wholly or partially before the other did, leaving the fallen portion of the sidewalk about fifteen feet in length at an angle of forty-five degrees, with the south side or side nearest the buildings on the ground and the north side on or against the street wall.

There were four persons on it when it fell; three of them near the building, and one, appellee, near the street wall. Those near the building were unhurt. Appellee plunged forward, or slid down the inclined plane, and fell between the two buildings, and was hurt, mainly in the small of the back. It is not easy to determine from the evidence how serious the injury was, or that it was really a serious one at all. One jury thought appellee was injured to the extent of $2,000, and the last one fixed the amount at $3,000. Sympathy, however, is often so strong in such cases that it is difficult to restrain the impulse to be liberally charitable, when the fund to bestowed is another’s. There was a flight of stairs on each side of the space between the buildings, leading up to the second story. The stairs nearly filled the space, and rested on the sidewalk. The stairs of the Brink building had settled at the side farthest from the building, so that the steps were not horizontal, but were lowest at the outer ends. The sidewalk had settled or sagged down between the buildings some few inches, probably about four or five. As there is no other way to account for this, except by the settling of the top of the post or point of support under the girder, we may assume that this was done. It is no matter how it was done. The top of the post was in some way lowered, and the superstructure went down also; the girder by its own weight, if not attached to the stringers, and the latter were sprung or bent down. A mechanic was employed in November, 1874, to repair the Brink stairs, and in order to bring the steps up to the horizontal, instead of putting a post under the end of the girder in place of or near the other, he put a six-inch post, as he says, about five feet from the Brand building and four feet from the Brink building, and placed it under the stringer. This new post of the. stair repairer must have been near to the old post of the sidewalk constructor. When he had the sidewalk and steps raised up so as to be horizontal, or nearly so, with his post under the stringer, the place of support was, of course, transferred from the old post to the new one, unless he had left a wedge, used in raising between the top of the old post and the girder or between the girder and the stringer or all the stringers. And so it would be if the wedge placed there got out.

The mechanic was repairing stairs, not a sidewalk; and it is quite probable that when he got through with his work, there was no very good reason why the girder should remain on the top of the post, or why the post with the girder on it should not go down. The stringer on the new post was not the only one raised. All the others between it and the street wall must have gone up too, some more and some less; and so it might have been with the other girder which fell. The superincumbent weight might have been taken wholly or in part off both girders, leaving them in a condition to be easily moved. It may also be that by not raising the stringer on the new post perpendicularly, but by pressing it street-ward, while the stringers and girder at the Brand corner were still in contact, the latter may have been drawn wholly or partly out of the hole in the wall. And to this result the tapping of the stringers as they rose and fell, might have contributed. If such were the circumstances, it is probable that the walk did shake and teeter some before it fell. The exact time when and manner in which these two girders went down, might be material in enabling us to determine whether the original construction was with ordinary care and diligence, or whether, if the original construction was well enough, and the whole trouble came from setting that new post under the stringer instead of the girder, ordinary care was used by the trustees to ascertain what the matter was, and to apply the remedy. It might be said that it was asking a little too much of the trustees to require them to have done so, when the attorneys and witnesses do not explain how the thing was done. We can imagine now how the sidewalk could have been made safer when originally constructed, or if the trouble came from repairing the stairs, which seems probable how it might have been avoided; but it is often easier to ascertain after the effect is produced, what the cause was, than to discover what nr y be the future effect of an existing cause.

The case at bar is not so clear for the appellee, taking into account the doubt as to the extent of his injury, the magnitude of the verdict, and the question whether appellant has not really exercised ordinary care and diligence, that we can say that there has been that substantial justice done which render’s inaccuracy of ruling by the court below unimportant in an appellate tribunal.

The only question, therefore, about which we propose to express an opinion, is that as to the instructions.

Without considering what would be the effect if the bill of exceptions did show that the five instructions given for appellee were not all that were given for him as claimed by appellee, we think it does substantially appear that he asked for no others. Tire conclusion that there might have been others between those asked for by appellee, and those asked for by appellant, is, we think, fairly excluded by the language of the bill of exceptions.

It is not necessary to investigate whether the appellee exercised proper care. He has been injured without fault on his part. Hor to say anything further as to the extent of his injury, except to say that there is always in such cases a strong bias on the part of a plaintiff, tending to cause exaggeration, which is to be guarded against. Two out of the three physicians examined in this case stated that they thought appellee was trying to exaggerate and magnify the extent of his injury. A man would, indeed, be something more than human, if his conduct would be precisely the same when examined by a surgeon, who expected to be a witness in such a case as this, as it would be if the examination were for the purpose of obtaining life insurance; and the surgeon’s evidence is too often composed largely of impressions or conclusions produced by the declarations and conduct of the patient. In this case, the existence of the injury could not be discovered without such declarations and Conduct of the plaintiff, except so far as his general appearance might indicate such an injury as that claimed by him.

The rule of law, as to such officers as the trustees, is well stated by Justice Sheldon in these words: “They are bound to exercise ordinary care and diligence to keep them (sidewalks) reasonably safe.” Rockford v. Hildebrand, 61 Ill., 157. The omission of the word “reasonably” might, perhaps, have improved the statement. The duty is to keep them safe. In the attempted discharge of the duty, ordinary care and diligence only are necessary, and if such be bestowed, there is no liability, though the sidewalks may not be reasonably safe, The adverb reasonably, whatever it may originally have meant, as now used, qualifies the condition of things as well as the conduct of persons. One of its definitions is, “ in a moderate degree, not fully, moderately, tolerably” (Webster). The statement that a horse was reasonably or moderately safe, or a reasonably or tolerably good one, would be allowable.

In some cases it has been held that if it appear that substantial justice has been done, courts should not reverse, if the instructions on both sides, taken as a whole, average about right. In cases where there maybe doubt whether substantial justice has been done, each instruction of appellee or defendant in error must state the law correctly, or there should be a reversal. In a case where the sympathy of the jury was on one side there would be danger that they would not stop to average, but, that out of the given instructions on both sides, they would select those in accordance with their sympathy and not attach as much weight to the others as they were legally entitled to. In a case like this, we are disposed to consider as good authority Chicago & Alton R. R. Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 Ill. 550; Ill. Cent. R. R. Co. v. Maffit, 67 Ill. 431; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 449, and other cases to the effect that each instruction must be right.

The fifth instruction for appellee concludes with the statement that “It makes no difference for the purposes of this suit whether said sidewalk was constructed by the defendant or a private property holder, and the jury may consider said sidewalk the same as though it was constructed by the defendant.” It is not entirely clear whether this sidewalk was built prior or subsequent to the passage on Feb. 24, 1859, of the special charter of the village; probably, however, after. The evidence is that is was built in 1858 or 1859. Conceding that it was the duty of the trustees to oversee and supervise the construction, as the property owner had the right to build, there might be a difference between actually building and overseeing as to what defects would indicate want of ordinary care and diligence. And in Rockford v. Hildebrand, supra, it is expressly said that “As the city did not construct the sidewalk, notice of its condition was requisite to charge the city with liability.” There is certainly some difference between a case where the village constructed the sidewalk and one where it did not, and it was error to say there was none whatever. The main difficulty, however, is about the other four instructions, which are as follows, viz:

1. “ The jury are instructed by the Court that the defendant under its special charter and also under its organization, under the general law, had the power to construct and maintain sidewalks along its streets, and also it was its duty to see that such sidewalks were constructed in a reasonably safe manner for public use, and when so constructed to keep them in repair so as to be reasonably safe for the public. And if the jury believe from the evidence that the plaintiff, while exercising due care on his part, received injury in consequence of the neglect of duty aforesaid by said defendant, either in the construction of the sidewalk in controversy or keeping it so in repair, then the jury should find their verdict against the defendant and assess the plaintiff’s damages at such sum as the evidence in the case may warrant, not exceeding, however, the sum of ten thousand dollars, claimed in the declaration.”

2. “ The jury are instructed by the court that if they believe from the evidence, that the sidewalk in question in this suit was out of repair at the time of the alleged injury, and had so remained for an unreasonable length of time before the time of the alleged injury to the plaintiff, then no actual notice to the defendant was necessary, but the law will presume notice to the defendant in such case. And if the jury believe, from the evidence, that the plaintiff while he was upon the sidewalk aforesaid, using due care on his part, was thrown down with said sidewalk a distance of six or seven feet, and against a wall, and was thereby injured in consequence of the said sidewalk being so out of repair, then the jury should find their verdict for the plaintiff, and assess his damages at whatever sum the evidence in the case justifies, not exceeding, however, the sum of ten thousand dollars claimed in the declaration.”.

3. “The jury are instructed by the court that where a sidewalk is constructed in an improper and negligent manner, no notice of its condition is necessary to make the village liable for the injury, as it is the duty of the village to take notice of the condition of its own sidewalks when they are so defectively and improperly constructed. And if the jury believe from the evidence that the sidewalk in question was constructed in a negligent and improper manner, and that while the plaintiff was passing over or standing upon said sidewalk, using due care, said sidewalk gave way, fell, thereby throwing the plaintiff violently to the ground and against a stone wall and greatly injuring him, then the jury should find the. defendant guilty and assess the plaintiff’s damages at whatever the evidence in the case warrants, not exceeding however the amount claimed in the declaration, and in assessing the plaintiff’s damages, the jury may take into consideration, the plaintiff’s loss of time, expenses incurred in being .cured, pain and suffering undergone, and any permanent injury to the person as proper elements of damages, so far as the same may have been established by the evidence.”

4. “ The jury are instructed by the court that if they believe from the evidence that the injury alleged to have been sustained by the plaintiff in consequence of the defective construction of the sidewalk of the defendant, was the combined result of an accident and of a defect in the construction of the sidewalk, and the damage would not have been sustained but for the defect, although the primary cause be a pure accident, yet if the jury believe, from the evidence, that there was no fault or negligence on the part of the plaintiff, and the accident was one which common prudence and sagacity on his part could not ha.e been foreseen and provided against, the jury should find the defendant guilty, and assess the plaintiff’s damages at whatever the evidence warrants, not exceeding, however, the amount claimed in the declaration.”

The statement in the first instruction, that it was the duty of the village to see that the sidewalk was constructed in a reasonably safe manner, and that when so constructed it was to be kept in repair so as to be reasonably safe without the insertion after the word “ duty,” and before the words “ to ” of the words “to exercise ordinary care and diligence,” was well calculated to mislead the jury for reasons before stated. This, however, is not the only difficulty. After stating that such was the duty, it is said that if the jury believe, from the evidence, that the plaintiff, while exercising due care on his part received injury in consequence of the neglect of the duty aforesaid by said defendant, the verdict should be for plaintiff.

Here are two assumptions; one that plaintiff was careful; and the other that defendant had neglected its duty. The first is unimportant because there was no conflict in the evidence, the other very important because there was a serious conflict, as to whether ordinary care and diligence had not really been exercised. It was a very easy matter to have avoided misconstruction by the jury by saying simply that it was the duty of the village to exercise ordinary care and diligence in constructing sidewalks, and in repairing them when constructed.

The second instruction is still more imperfect. It is to the effect that if the sidewalk were out of repair for an unreasonable length of time and if the plaintiff were thereby injured the village was liable, no matter what the measure of its care and diligence may have been to discover and remedy the difficulty, nor is it made material to what extent it was out of repair. The law is well settled that it is not the absolute duty of municipalities to discover and remedy defects in sidewalks, but only to use ordinary care and diligence to do so. Town of Grayville v. Whittaker, 85 Ill. 439, and other previous cases. The facts in this instruction may exist and yet there may have been ordinary care and diligence. After lapse of reasonable time, notice of the defect may be implied, and yet the defect be one which ordinary care and diligence would not require to be repaired. There are no perfect sidewalks. It is with them as with men. There are none without some defects.

The third instruction creates liability, if the sidewalk were negligently and improperly constructed by the lot owner, though there was no notice to the village authorities; and what has been said about the fifth is applicable to this oneNTor is mere neglect, however slight, enough to make liability. Unless it amount to a want of ordinary care and diligence, it is not neglect enough.

In the fourth instruction the jury are told that if the injury, alleged to have been sustained in consequence of the defective construction of the sidewalk, was the combined result of an accident and a defect of construction, and there would.have been no damage but for the defect, then the defendant was guilty, and the jury should so find. That is, if there' were a defect of construction, and if appellee were injured, there would be liability without even the slightest negligence on the part of the appellant. That this is incorrect, see Shearman and Redfield on ^Negligence, § 147. What this supposed combination of accident and defect means, under the evidence in this case, is difficult to understand. The jury could never have known exactly what the idea intended to be conveyed was. They may have construed it to mean that the plaintiff, having met with an accident on the defective village sidewalk, ought to have, some relief and that the village treasury was the most appropriate place for it to come from. If the idea intended, as is probable, was that if the fall of the sidewalk was partly owing to accident and partly to the negligence of the defendant, the jury should find for the plaintiff, then it was wrong. The admixture of accident might have been enough to dilute the negligence below the standard of ordinary care and diligence.

It was improper also to inform the jury four' different times that the plaintiff claimed ten thousand dollars, and to caution them as many times that they should be careful to allow no more. Though not perhaps' alone enough for a reversal, the jury may well have supposed there was some urgent necessity for restraining them, so they should not give more. And they might also conclude that plaintiff would never have put in so large a claim unless his injury was quite serious. See C. R. I. & P. R. R. Co. v. Austin, 69 Ill. 426.

For the reasons mentioned we think there should be another trial. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.