text:
    Felix W. Calkins v. D. C. Speaker and Henry A. Butzow.

      Drainage—Notices—Relief for Irregularities—Bill—Quo Warranto— Special Assessments—Sale—Bill to Set Aside Certificates.

    1. A bill in equity does not lie for relief on account of any irregularity or insufficiency in the statutory notices antedating the order of the County Court confirming the report of the commissioners, and finding that a drainage district is duly established.
    2. Where the jury has completed the assessment of damages and benefits, only posted and published notices of the time and place for hearing objections are required to be given.
    8. In the case represented, it is held: That the bill, filed by a nonresident owner to set aside, as clouds upon his title, certain certificates of purchase issued upon a sale made to collect special assessments, will not lie; and that the notices of the time and place for objecting to such assessments were sufficient.
    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfeed Sample, Judge, presiding.
    Messrs. C. H. & C. B. Wood, for appellant
    In special proceedings, in order to fix a lien upon lands affected, against the owner’s wishes, the provisions of the statute must be observed. This is especially true where it is sought to be done by constructive notice. In such case, all the requirements of the statute must be observed, in order to authorize the court to proceed and fix the lien. Scott v Brackett, 89 Ind. 418; Steinbach v. Leese, 27 Cal. 295; Staples v. Fairchild, 3 N. Y. 41; Payne v. Young, 8 N. Y. 158.
    All provisions designed to give the owner the opportunity of a review of the assessment, whether by the assessors themselves or an appeal from their conclusions, are exclusively in his interest. Every notice which the statute provides for to that end, whether by publication or otherwise, must be given with scrupulous observance of all its requirements. The notice can not be shortened a single day without rendering it ineffectual, the presumption being that the law has made it as short as was deemed consistent with due protection.
    The same rules apply to any notice required of subsequent proceedings; if required to be given within a certain time, or in any prescribed mode, it must be so given. Cooley on Taxation, 2d Ed. 287, and cases there cited.
    Whatever statutory proceedings are made for notice and hearing must be regarded, under the rules of construction already given, as mandatory. A compliance with them in all essential particulars should, therefore, be held a condition precedent to any further proceedings. Cooley on Taxation, 2d Ed. 365; Nashville v. Weiser, 54 Ill. 245; Mix v. People, 72 Ill. 241.
    If the record shows a certificate of the publication of notice not such as the law required to give jurisdiction, a recital in the orders and judgment that notice was properly given will not avail to sustain the judgment. Wallahan v. Ingersoll, 117 Ill. 123.
    It was erroneously supposed that this bill seeks to question the organization of the district. It is framed upon no such theory and asks no such relief. The bill is framed solely to set aside the certificates of sale. If the assessments were illegal for want of notice to the owner, this must bo done, but as it is claimed, in effect, that if there was proper constructive-notice at the organization of the district, the owner is bound by all the subsequent proceedings, it was necessary to trace the proceedings from their inception to show the want of jurisdiction as to this particular land. This party had no notice in fact or in law, and yet it is claimed that his property shall be sequestrated without a hearing.
    Messrs. Tracy B. Harris and Kay & Evans, for appellees.
    The hill strikes at the legality of the organization of the district. It attacks the validity of the notices given for the hearing on the petition, and on the commissioners’ report, which precede the final organization as provided in Sec. 19. This can not be done by a bill in chancery. Being a corporation de facto its existence can not be attacked collaterally. Blake v. People, 109 Ill. 504; Keigwin v. Drainage Commissioners, 115 Ill. 347.
   Baker, J.

This was a bill in chancery exhibited by Felix W. Calkins, the appellant, against appellees, to set aside as clouds upon his title certain certificates of purchase issued upon a sale made to collect sjiecial assessments for ditch purposes on 280 acres of land in Sec. 8, T. 27 N., R. 12, W. of the 2d P. M., in Iroquois County, Illinois.

George 0. Tallman, of Brooklyn, Hew York, acquired the title to said lands by deed, which was duly recorded on the 24th day of October, 1879. An exemplification of the will of said Tallman was placed upon the records of Iroquois County on the 28th of August, 1880, showing a devise of said lands in trust to F. H. Lawrence, executor; and on June 25, 1883, said executor, F. H. Lawrence, by virtue of the powers conferred in the will, conveyed the lands to appellant.

A drainage district known as “ Middleport Drainage District Ho. 1,” which included the tracts of land in question, wa formed, upon a petition which was filed in the County Court of Iroquois County^ on the 27th day of March, 1882. The County Court, on the 24th of May, 1882, heard and determined the matters pertaining to the formation of the drainage district, and appointed three commissioners to lay out and construct the proposed work. The commissioners made to the court a report of their conclusions and filed therewith a copy of their surveys, profiles, plans and specifications, and also a plat of the district showing the lands embraced therein by sections and parts of sections. This report of the commissioners was confirmed by the court on the 11th day of September, 1882, and thereupon a jury of twelve men was impaneled to make an assessment of damages and benefits. The jury made an assessment, and the 20th day of November, 1882, was fixed upon as the time for hearing objections thereto, and on the 21st of November, all objections having been heard, the assessment was confirmed and certificate made. The assessment so made and confirmed included the assessments for which the lands in question were sold and upon which the certificates of purchase in controversy wfere based.

It is conceded that the County Clerk caused three weeks’ notice of the presentation and filing of the petition for the organization of the drainage district to be given by posting notices thereof in at least five of the most public places in the proposed district in which the work was to be done, and also by publishing a copy thereof at least once a week for three successive weeks in a newspaper published in the county in which the district was proposed to be formed. . Nor is it claimed otherwise than that tire County Clerk caused notice to be given in the same manner,, stating the time of the filing of the reports of the commissioners and upon what day application would he made for the confirmation of such report. It is also admitted that at least ten days’ notice was given by the commissioners of the time and place for hearing objections to and correcting the assessments made by the jury, by publication in a newspaper and by posting notices in the district.

The contention of appellant is that F. H. Lawrence, excen- • tor of George 0. Tallman, deceased, and owner in trust of the lands, was a non-resident of the County of Iroquois and of the State of Illinois, and that under the state of facts appearing in the record the name and place of residence of the owner of said lands was not unknown, or shown by the affidavit filed with the petition to he unknown; and that there was no appearance by Lawrence, or by any one representing the estate of George C. Tallman, deceased, in the proceedings had eithe upon the 21th of May, 11th of September, or 20th or 21st of ¡November, 1882; and that neither the Comity Court, or the commissioners, or the jury impaneled, acquired any jurisdiction of the owner or of the lands, so as to create by their proceedings a valid lien on said lands.

¡By the amendatory act in force May 19, 1881, the third section of the act, approved and in force May 29, 1879, was so amended that in addition to the notices by posting and by publication in a newspaper as provided for in the original section, it was required that, “ if any of the land owners of said district are non-residents of the county or counties in which the proposed district will lie, the petition shall be accompanied by an affidavit, giving the names and places of residence of such non-residents, if known, and if unknown, stating that, upon diligent inquiry, their places of residence can not be ascertained; and the clerk shall send a copy of the notice aforesaid to each of said non-residents whose residence is known, within three days after the first publication of the same.” Sec. 13 of the Act of 1879 was not expressly amended by this Act of 1881, but it would seem it was amended thereby by necessary implication. It was provided in said Sec. 13 that notice should be given of the day application would be made for the report of the commissioners “in the same manner as is provided in Sec. 3.33

But, the notices to be posted, and sent or mailed, and the publication to be made under Sec. 3, both as it originally stood and as amended in 1881, and under Sec. 13, are all preliminary in their character and pertain to the organization of the drainage district. It is only after the order of confirmation provided for in See. 16 of the act is made and entered of record in the County Court that the proposed drainage district becomes in fact and in law a drainage district. The declaration and mandate of the statute is that upon the order of confirmation being entered of record, the drainage district is a body politic and corporate, with the right to sue and be sued, and adopt and use a corporate seal, and have perpetual succession and exercise the functions conferred upon drainage districts by law.

In the case at bar the conclusion must be that when, on the 11 til day of September, 1882, the County Court made the statutory order of confirmation confirming the report of the commissioners and finding that the drainage district was duly established as provided by law, and said order was duly entered of record, then the Middleport Drainage District No. 1, became and was a drainage' district and a body politic and corporate de facto, even if not de jure. Whether or not it became a drainage district de jure, to the extent it was declared to be a district by the order of confirmation, we have no power here to determine. For any irregularity or insufficiency of the statutory notices antedating the order confirming the report of the commissioners, no relief can be obtained by bill in chancery, and the only remedy, if any there be, is by an information in the nature of a quo wan'rcmto. Blake v. People, 109 Ill. 504; Huston v. Clark, 112 Ill. 344; Keigwin v. Drainage Commissioners, 115 Ill. 347. In Evans v. Lewis, 121 Ill. 478, it was held that if drainage commissioners undertake to exercise powers or franchises over or upon lands not lawfully within the bounds of the district, their right or authority to act as to these lands may be called in question by quo warranto, but can not be called in question by bill in equity.

When the jury have completed their assessment, the only notices required to be given of the time and place objections to the damages and benefits assessed will be heard, are notices of at least ten days, by posting notices in five or more of the most public places in the district, and by publishing a copy thereof in a newspaper published in the county, „ Sec. 19 of the Act of 1879 expressly and in terms limits the notices to he given to posted and published notices; and no sending or mailing of notices to non-resident land owners is required in that regard. There is a very essential difference in respect to the extent to which the provisions of Sec. 3 of the statute is, by reference, incorporated into and becomes a part of Secs. 13 and 19, respectively. In this case the notice given under Sec. 3 was all that the statute required.

We find no error in the decree of the Circuit Court dismissing the bill of complaint of appellant. The decree is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Bakes, J.

license: Public Domain

text:
    Richard Hellwig et al., Executors, v. Joseph Bachman.

      Wills—Devise of Lands for Years—Death of Devisee—Estate for Years.

    1. A devise of lands to one to have, use and hold for a certain number of years succeeding the death of the testator, creates an absolute estate for years, or chattel real, which passes to the personal representatives of the devisee, and not a conditional estate for years to end in the event of his death before its expiration.
    2. An estate for years is inferior to a life estate in respect to quality, but not necessarily in respect to quantity or value.
    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Woodford County; the Hon. S. S. Page, Judge, presiding.
    In connection with this case see the following and related ease of Jaequat v. Bachman.
    Peter Kennell died testate on the 3d day of November, 1885, leaving a wife, but no children. By his last will and testament he gave and bequeathed to his wife, Barbara Kennell, all his personal property, and devised to her certain town lots in fee, and a certain tract of land containing eighty acres, for life. In addition .to this, his will disposed “of certain other lands, 186 5-6 acres, as follows:
    “ Third. I give and bequeath to my said wife, Barbara Kennell, to have, use and to hold for the period of six years from March 1st succeeding my death, the following described lands, to wit (describing said 186 5-6 acres), and at the end of six years from the 1st day of March succeeding my death said lands in this clause named shall pass into the possession and control of my brother-in-law, Joseph Bachman, to whom I devise the lands in this clause described in fee simple, subject to the right of my wife to use the same for six years from March 1st following my death as aforesaid.”

      The said Barbara Kennell died testate on the 25th day of September, 1886. By her will Hippolyte Jacquat, one of the appellants, was appointed sole executor, and qualified as such. The seventh clause of her will was as follows:
    “If my executor is entitled to collect the income of said lands devised to me by my late husband, to have for six years from his death, the same as I would be should I live, then it is my will that he pay one-half of such income so collected to my niece, Louisa Jacquat, and that the remaining one-half be equally divided among nephews and nieces hereinbefore specifically named.”
    The suit at bar was ejectment by Joseph Bachman, mentioned in the third clause of the will of Peter Kennell, against Hippolyte Jacquat, executor of Barbara Kennell, and Bichard Hellwig, his tenant, to recover possession of a portion of the land included in the 186 5-6 acres above mentioned.
    Hpon a trial without a jury, in the Woodford Circuit Court, the court found the issue for Bachman, appellee, and that he was entitled to possession, and rendered judgment on such findings against Jacquat, executor, and Hellwig.
    Messrs. W. L. Ejulwood and W. S. Gibson, for appellants.
    An estate for years, or a term for years, may be created by devise. Greenleaf’s Cruise on Real Property, Vol. 3, p. 337; Cooley’s Blackstone, Vol. 1, p. 421, note; Carter v. Barnardiston, 1 P. Wms. 509; Hitchens v. Hitchens, 2 Vern. 404; Doe v. Simpson, 5 East, 171; Rhoads v. Rhoads, 43 Ill. 239; Blanchard v. Maynard, 103 Ill. 60.
    An estate for years is a chattel real. 1 Crabbe on Real Property, pp. 6 and 7; Williams on Executors, 568; 2 Bedficld on Wills, 127; Willenborg v. Murphy, 36 Ill. 344; Thornton v. Mehring, 117 Ill. 55. A chattel real goes to the executor or administrator, or may be disposed of by devise. 1 Crabbe on Beal Property, 7; Williams on Executors, 568. An estate for years descends to the executor or administrator. Green-leaf’s Cruise on Beal Property, Yol. 1, p. 246, Sec. 24; 4 Kent, 93.
    The plain and unambiguous words of the will must prevail, and are not to be controlled or qualified by any conjectural or doubtful constructions growing out of the situation, circumstances or condition, either of the testator, his property or family. 1 Bedfield on Wills, 429, 430; Illinois Land & Loan Co. v. Bonner, 75 Ill. 315. “Where the testator in the disposition of his property, overlooks a particular event, which, had it occurred to him, he would in all probability have provided against, the court will not rectify the omission by implying or inserting the necessary clause, conceiving it would ho too much like making a will for the testator rather than construing that already made.” 2 Roper on Legacies, 1464; Illinois Land & Loan Co. v. Bonner, 75 Ill. 315.
    Messrs. R. E. Worthington and Geoege T. Page, for appellee.
    The controlling principle in construing wil Is, is to give effect to the intent of the testator, and technical words should not prevail against this. Kennedy v. Kennedy, 105 Ill. 350; Caruthers v. McNeill, 97 Ill. 256; Rountree v. Talbot, 89 Ill. 246; Schouler on Wills; Secs. 466, 467; Nightingale v. Sheldon, 5 Mason, 336; Shriver v. Lynn, 2 How. 43.
    Intention should prevail even over exqiress words. Smede v. Bell, 6 Pet. 63; Corrigan v. Kierman, 1 Brad. 208; Welsch v. Belleville Savings Bank, 94 Ill. 191; Wright v. Dunn, 10 Wheat. 204; Bartlett v. King, 12 Mass. 537; Ruston v. Ruston, 2 Dall. 244; Stephens v. Cross, 27 Ill. 35.
    The whole of a will is to be construed together, irrespective of the form of particular expressions, in order to arrive at the intention of the testator. 1 Jarman on Wills, 412; Siegwald v. Siegwald, 37 Ill. 430; Boyd v. Strahan, 36 Ill. 355; Bergan v. Cahill, 55 Ill. 160; Redfield on Wills, Part 1, 174; Hamline v. U. S. Express Company, 107 Ill. 443; Johnson v. Johnson, 98 Ill. 564; Lunt v. Lunt, 108 Ill. 307; Bland v. Bland, 103 Ill. 11; Osborn v. Jefferson National Bank, 116 Ill. 130; Banta v. Boyd, 118 Ill. 186; Schouler on Wills, Sec. 468.
    Courts will change or mould language so as to give intention effect. Stephens v. Cross, 27 Ill. 35; Schouler on Wills, Sec. 477; 1 Jarman on Wills, 499, 503; 2 Jarman on Wills, 843; Cox v. Britte, 22 Ark. 567; Metcalf v. Farmingham Parish, 128 Mass. 370; Cleland v. Waters, 16 Ga. 496.
    When a term for years is created for a particular purpose, when that purpose is accomplished, the termor is treated as a trustee for the owner of the fee. Williams on Executors, 2 Am. Ed., Vol. 2,1193, cited in 1 Jarman on Wills, 95.
   Bakes, J.

There seems to be but little room for construction in the third clause of the will of Peter Kennel], deceased. The primary and controlling principle in construing a will, is to ascertain and give effect to the intent of the testator. Here his words are plain, clear and unambiguous, and the literal terms used, whether regarded in their technical sense or in their general and popular sense, involve no inconsistency, uncertainty or absurdity. Barbara Kennel! took by that clause an estate for years, commencing on the 1st day of March, 1886, and ending with the last day of February, 1892. This estate was a chattel real, and on the death of Barbara, in September, 1886, it vested in Hippolyte Jaequat, her executor, and under the seventh clause of her will the executor held, and still holds it in trust, to collect the income from said lands until the end of the term, and divide and pay such income as directed by his testatrix.

The last sentence of said third clause is not inconsistent with, nor does it limit or qualify the preceding sentences of the clause; on the contrary, by the use of the concluding words C! as aforesaid,” it expressly adopts and re-affirms the antecedent ma tier. If it had been the intention of Peter Kennell to give to his wife a conditional estate for years, to end in the event she died prior to the expiration of the term of six years, it must be presumed he would have so provided in his will. The courts do not assume to make wills for dead men; they merely interpret the wills they have made for themselves. In this ease we find nothing either in the will or in the evidence dehors the will to indicate the testator had any intention to do otherwise with his property than was plainly expressed in his will. The argument of counsel for appellees is based upon the merest surmises, and the authorities they cite are good enough law, but have no application to the case.

A fair statement of the principal claim of appellee is, in substance, this: An estate for years is inferior to an estate

for life, therefore, when the donee of an estate for years dies before the expiration of the term given, the estate for years is thereby terminated, and this—because otherwise an estate for years would be superior to an estate for life. This argument is radically unsound, both in its premises and conclusion. An estate for years is inferior to a life estate in respect to quality only, and not necessarily in respect to quantity or value. One in whom an estate for life is vested, is a freeholder; but one to whom is given or conveyed a term of 500 years is only a tenant for years.

The question here is, what the estate and interest of Barbara Kennell in the premises in controversy actually were; and it is wholly immaterial that she may have felt uncertain what her legal rights were under the will of her deceased husband, in respect to whether or not her executor would be entitled to hold the land till the end of the term, and collect the rents.

The findings and judgment of the trial court were erroneous. Appellee has no right of action. The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Lacey, J.

text:
    Hippolyte Jacquat, Executor, v. Joseph Bachman.

      Wills—Devise of Lands for Years—Death of Devisee,
    A devise of lands to one to have, use and hold for a certain number of years succeeding the death of the testator, creates an absolute estate for years or chattel real, which passes to the personal representatives of the devisee.
    [Opinion filed March 20, 1888.]

      Appeal from the Circuit Court of Woodford County; the Hon. S. S. Page, Judge, presiding.
    In connection with this case see the preceding and related case of Hellwig v. Bachman.
    Messrs. W. L. Ellwood and W. S. Gibson, for appellant.
    Messrs. NT. E. Wobthington and Geobge T. Page, for appellee.
   Lacey, J.

This was an action of ejectment, brought to recover the possession of certain real estate in question, the possession of which was held by appellant. The court below found in favor of appellee, and rendered judgment for possession of the real estate in question against the appellant. The appellant claimed the realty under and by virtue of two wills. The first one was by Peter Kennell to his wife, Barbara, by which he devised to her the real estate in question, “to have, use and hold for six years from March 1st succeeding my death.” Said Peter having died on the 3d day of ¡November, 1885, the said Barbara afterward devised her interest or six years’ term in said land to the appellant, her executor, who was directed by her will to collect and “ pay one-half the income to her niece, Louisa Jacquat, and that the remaining one-half be equally divided' among nephews and nieces,” named in the will. By the will of said Peter, the appellee was the reversionary devisee of the realty in question after the termination of the six years’ term of his wife, Barbara. Barbara died September 25, 1886. The appellant was in possession under said two wills, and the object of this suit was to dispossess him.

The court below found in favor of appellee, construing the will of Peter Kendall to mean that the six years’ term was to terminate at the death of his wife, Barbara, and, she having died, held that appellee was entitled to the immediate possession, though the six years had not expired after the death of said Peter.

The will does not provide in terms or any language used in it that the six years’ term should expire at the death of Barbara Kennell in case that should take place prior to such expiration. The court was in error in supposing that the six years’ term expired at Barbara’s death irrespective of the lapse of time. It was, in effect, to change the terms of the will in that respect. The six years’ term of Barbara in law is termed a, chattel real, and goes to the administrator, executor or devisee of the termor, and does not lapse at his death. In order that such term should unconditionally lapse at his death the will must so provide. The ruling of the court below was to change this rule of law, and to hold that the will creating the term must expressly provide that the term shall survive to the administrator, executor or devisees of the termor. The court below erred in so holding. We refer to the opinion of this court, filed herewith, in Hell wig v. Bachman, where the same wills and same questions are involved as in this case, where the facts and the law are stated more at large, for a further discussion of the case. The judgment of the court below is reversed and the cause remanded.

Reversed cmd remanded.


author: Barer, J.

text:
    City of Rock Island v. Mary Riley.

      Practice—Bill of Exceptions—Certificate of Cleric.
    1. An objection to the instructions given, and that the evidence does not support the verdicc, can not be considered by this court unless it appears by the bill of exceptions that exception was taken to the instructions in the court below, and to the refusal of said court to award a new trial.
    2. Only the presiding Judge can certify what his rulings were and what exceptions were taken thereto. The certificate of the clerk is insufficient to make such matters part of the record.
    [Opinion filed March 20, 1888.]

      Appeal from the Circuit Court of Bock Island County; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. William McEniry, for appellant.
    Messrs. W. H. Gest and P. O’Mara, for appellee.
   Barer, J.

This was a case by appellee against appellant for injuries received on a defective sidewalk. The results of a jury trial were verdict and judgment for plaintiff below for §800 damages.

The grounds urged by appellant for a reversal of the judgments are, that the evidence does not support the verdict, and that the trial court gave erroneous instructions. To this it is objected by appellee that no exception was taken to the action of the court in giving the instructions asked by her; and that it does not appear from the record that a motion for a new trial was made and overruled, and exception taken to such ruling of the court.

Unless exception was taken to the instructions in the court below, and unless the court was asked to give a new trial and refused so to do, and exception was thereupon taken to such decision, the rule is that the matter of such instructions and the question whether or not the evidence at the trial sufficiently sustained the verdict of the jury, can not be inquired into in an appellate tribunal.

It is also the rule, that the actions and decisions of the court in respect to these several matters, and the exceptions interposed in regard thereto, must be preserved in a bill of excep-. tions signed and sealed by the Judge and filed in the court, and that otherwise than as indicated these matters and exceptions do not become a part of the record. They form no part of the record proper in a suit at law; and no mere certificate of the clerk of the court can make them a record. The presiding Judge of the court, and no one else, is permitted to certify what his rulings were, and what exceptions were taken thereto.

The bill of exceptions which is incorporated in the record of this case, shows what instructions were given at the instance of appellee, but it does not appear therefrom that a motion for a new trial was either made or overruled, or that any exception was taken to any supposed action of the court in refusing to allow such a motion. In the transcript filed in this court, on a page following that on which the bill of exceptions closes and on which the signature and seal of the presiding Judge appear, there are certain written statements to the effect that the defendant excepted to the instructions given for the plaintiff, and to the effect a motion for a new trial was made and overruled and an exception taken to such overruling. These statements are not in the bill of exceptions as signed and sealed by the Judge and certified by the clerk; nor do they purport to be any part of the bill of exceptions. Assuming these entries were placed in the transcript by the clerk and are certified by him to be a part of the record, we must hold, what has frequently heretofore been held, that the clerk’s certificate can not make them a record.

The points we have suggested are so well settled and so familiar to the profession, that the citation of authorities in that behalf is needless.

We are precluded from any consideration of the assignments of error relied upon by appellant. The judgment is affirmed.

Judgment affirmed.


author: Bakeb, J.

text:
    City of Rock Island v. Bridget Cuinely.

      Municipal Corporations—Judicial Notice—Defective Sidewalk—Personal Injury—Constructive Notice—Variance—Damages—Whether Excessive.

    1. The courts of this State take judicial notice of the existence of all villages and cities organized under the general incorporation act.
    2. In an action of tort the plaintiff is only required to prove sufficient of the allegations contained in the declaration to show a cause of action.
    3. In an action against a municipal corporation to recover damages for a personal injur)' caused by a defective sidewalk, it is held: That there is no variance between the declaration and the proofs; that the defendant was chargeable with constructive notice of defects in the sidewalk in question; that there was no substantial error in the instructions; and that the damages were not so excessive as to require a reversal.
    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Bock Island County; The Hon. Abthub A. Smith, Judge, presiding.
    Mr. J. T. Kehwobthy, for appellant.
    Messrs. William MoEniby and William Jacksoh, for appellee.
   Bakeb, J.

Bridget Cuinely obtained a verdict against the City of Bock Island for §1,500, for injuries occasioned by a defective sidewalk on Seventh Street in said city; she remitted §100 of the damages, and judgment was rendered in her favor for §1,100 and costs.

It is objected that there is no evidence that the defendant is a municipal corporation of this State or that it had any control of the street in question, or that it was, or is, under any legal obligation to keep and maintain it in safe repair. In that connection the attention of the court is called to the opinion of the Supreme Court in Brush v. Lemma, 77 Ill. 496. Sec. 6 of Art. 1 of the General Incorporation Act in force July 1, 1872, provides in express terms that “all courts in this State shall take judicial notice of the existence of all villages and cities organized under this act, and of the change of the organization of a town or city from its original organization, to its organization under this act; and from the time of such organization, or change of organization, the provisions of this act shall be applicable to such cities and villages.” The cases of Potwin v. Johnson, 108 Ill. 70, and Harmon v. City of Chicago, 110 Ill. 400, hold the law to be that courts must take judicial notice of the fact a city is incorporated under the act in question. Brush v. Lemma, so far as it is in conflict with the plain requirements of the statute and these latter decisions of the Supreme Court, is not to be followed, and must be regarded as overruled.

In respect to two matters it is claimed there is a variance between the declaration and the proofs. The declaration charges the planks of the sidewalk were “broken, loose and unfastened to the stringers;” and the' evidence shows the planks were loose and not fastened to the stringers, but does not show any of them were broken. This is no variance; in tort it is only required of a plaintiff to prove so much of that which is alleged in the declaration as is necessary to show a cause of action. There is no substantial variance in regard to the character of the injury received. The allegation is that the right wrist was dislocated and broken. The proof is that the large bone of the fore-arm or radius was fractured within half an inch of the lower end of the bone. The lower end of the radius enters into the formation of the wrist joint and is an essential part of the wrist.

There was ample testimony before the jury from which they could properly find that for weeks and months prior to the accident, and probably very much longer, the stringers of the sidewalk at the place in question had been rotten, and the planks loose and unfastened. This being so, the city was chargeable with constructive notice of such defects, and was bound to know the sidewalk was dangerous, and should have repaired it.

The jury were fully and fairly instructed by the court with reference to the law of the case. The instructions given for appellee were substantially correct; and the slight inaccuracies found in a few of them were cured in other instructions given by the court. We see nothing in any of them that, under the evidence, could liavo been determined to the rights of appellant. The 10th and 11th refused instructions, asked by appellant, were mere repetitions of the matters and legal principles which were fully stated in 3d, 1st and 5th given instructions. There was no evidence before the jury tending to prove that appellee was guilty of negligence in not taking proper care of herself after receiving her injuries, or that she disregarded or refused to follow any of the directions or instructions given her by the surgeon or physician; and we therefore think there was no error in refusing the 9th instruction submitted by appellant.

There is no sufficient ground for holding that the damages are so excessive that they demand a reversal of the judgment. We find no manifest error in the record, and the judgment is affirmed.

Judgment affirmed.


author: Bakek, J.

text:
    Elias B. Baldwin v. Jacob Baldwin.

      Statute of Limitations—Acts of 18Í9 and 1873—Netv Promise,

    1. A payment in 1875 on a note executed in 1868, being within the Statute o£ Limitations of 3872, only extended the note for ten years.
    2. Under the Act of 1872 a new promise must be in writing.
    [Opinion filed March 20, 1888.]
    In ebbob to the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.
    Mr, James W. Davidson, for plaintiff in error.
    Mr. William X. Stewaet, for defendant in error.
   Bakek, J.

In Zeigler v. Tennery, 23 Ill. App. 133, we held that where a promissory note was executed while the Limitation Act of November 5,1849, was in force, and a payment was made thereon after July 1, 1872, when the Statute of Limitations, approved April 4, 1872, went in force, such payment did not have the effect to extend the Statute of Limitations for a period of sixteen years from the date of the payment, as if under the Act of 1849, but was only effective to extend the period of limitation for ten years, the period of limitation fixed by the Act of 1872. We based our decision upon the theory the new promise operated as a new delivery of the note. Sennott, Adm’r, v. Horner, 30 Ill. 429; Kallenbach v. Dickinson, 100 Ill. 427.

We also decided, in Zeigler v. Tennery, that a promise, not in writing, made after the Statute of 1872 went in force, to pay a note executed while the Act of 1849 was in force, can avail nothing and is not binding, for the reason such promise woiVd be governed by Sec. 16 of the Limitation Act of 1872, which requires the new promise to pay to be in writing. Zeigler v. Tennery is on all fours with this case, and disposes of both of the questions involved herein.

Here, the payment was made on the note in January, 1875, and only revived the note for ten years from that date, and this suit was not brought until April, 1887. The new promise relied on here was made in 1880, and was not in writing.

There is no error in the record. The judgment is affirmed.

Judgment affirmed.


author: Baker, J.

text:
    Frank A. Kerns, Administrator, v. Winnefred Ryan.

      Principal and Surety—Extension of Note—Consideration—Payment of Interest Due—Evidence—Conflict of—Instructions—Error without Prejudice.

    1. An agreement extending a promissory note, to effect the release of the surety, must be without his knowledge and ‘consent, and must be based upon and supported by a new consideration. The payment of intere st already due is insufficient.
    2. In order to release a surety, the agreement for an extension need not be in express terms.
    3. An improper instruction, which clearly did not and could not work an injury to the appellant, is not sufficient ground for reversal.

      [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Stark County; the Hon. S. S. Page, Judge, presiding.
    Mr. B. P. Thompson, for appellant.
    Mr. W. W. Weight, for appellee.
   Baker, J.

On the 9th day of June, 1885, one Richard Kerns was indebted to Winnefred Ryan in the sum of $500 for borrowed money, and gave to her his note of that date for $500, due one year after date and drawing eight per cent, interest, and Abner Kerns, the intestate of appellant, signed the note as security. Abner Kerns died April 30, 1887, and the note was presented as a claim against his estate, and the allowance thereof contested by the administrator. The claim was allowed against the estate in the County Court. Upon appeal to the Circuit Court of Stark County, there was a jury trial and verdict and judgment for appellee. The administrator brings the record to this court.

It is a conceded fact that one James Kerns, acting as the agent of Richard Kerns, the principal debtor, paid to appellee the sum of $40, it being the first year’s interest on said note, and that, in consideration thereof, appellee agreed to extend the time of payment of the note for another year. That this arrangement was made without the knowledge or consent of the security is undisputed. In respect to the time when the $40 was paid and extension agreed upon, there is a very great conflict in the testimony. Mrs. Ryan swears positively that at that time the note was overdue—some two or three days overdue. That she can not read, but knows it was overdue for the reason that she was talking about it to her daughter, and her daughter looked at the note a day or two before that and told her it was due. Hannah Ryan, the daughter, also testifies that the note was past due when the payment was made, that she had looked at the note, and that no one came near to pay it when it was due. The testimony of Richard Kerns is that he was sick and was going away to Colfax Springs and gave his brother James the money to go out and pay Mrs. Kyan her interest. Thinks it was about the 15th or 20th of May, along in. the latter part of May, 1886.

He put down in his memorandum the time he got to the Springs, and thinks it was the 21st or 22d, but did not have his memorandum with him at the time of testifying. He further states that is all that makes him think it xvas about that time. There is also some testimony xvith reference to admissions made by appellee in the presence of appellant and his mother, America Kerns, but it is not of a very satisfactory character. Appellant first says that Mrs, Kyan told him the interest xvas paid her some time along before the note was due ; that she would not be positive as to that, but she thought it xvas before it was due. He subsequently further qualifies this by saying that he will not be certain, but thinks she said the note xvas not due when the interest was paid. America Kerns thinks appellee stated she received the interest about the time the note was due, and swears that it seems to her, those were the xvords Mrs. Kyan used.

The burden of proof being upon appellant we are not prepared to hold that under the evidence the jury was not authorized. to find that he had failed to show by a preponderance of the evidence that the $40 interest was paid prior to the maturity of the note.

If the interest xvas due when it was paid, then no consideration to support a binding contract could grow out of its payment. Such payment was already required by the terms of the original note. In such state of the case, the agreement to extend time for payment would be a mere nuchrni pactum. An agreement for the extension of time for the payment of a note, made between the principal maker and a payee, that xvill have the effect to release a security on the note, if made without his knowledge and consent, must be based upon and supported by a nexv consideration, and the payment of interest for xxiiich the makers of the note are already liable is not a sufficient consideration to make such agreement valid. Waters v. Simpson, 2 Gilm. 570; Woolford v. Dow, 34 Ill, 424; Stuber v. Schack, 83 Ill. 191; Crossman v. Wohlleben, 90 Ill. 537.

The fourth instruction given at the instance of appellee is ambiguous, and it is uncertain from its terms whether the word “expressly” contained therein qualifies the word “agreed,” or the clause “in consideration that the interest was paid before it was due,” or qualifies both the word and the clause. We will assume the qualification applies to both. The use of the word “ expressly,” in whatever way it is applied, makes the instruction an inaccurate and incorrect statement of the law. It is not essential that the contract between the creditor and the principal debtor to give further time to the latter, in order it may have the effect to discharge the surety, if made without his knowledge and consent, should be made in express words; proof of-a mutual understanding and intention, or of an implied agreement, if acted upon, will be sufficient. But it is the established doctrine that an improper instruction, if it is clear that it did not and could not work an injury, will not reverse a judgment which is sufficiently sustained by the evidence. To illustrate, if a court should assume to instruct a jury that no recovery could be had upon a promissory note which was not under seal and signed by the maker with his full Christian name and without the use of any mere initial letters of such name, and the only instrument sued on or in evidence was in fact under seal and executed by the maker by his full Christian name, and there was no controversy in respect to these circumstances, then it is manifest as applied to the particular case so on trial such instruction could not have misled the jury and should not have the effect to set aside another valid judgment.

It was not necessary, in the case before us, that the agreement for an extension should have been an express contract. Bnt all the parties testify to an express contract, that it was agreed, in terms, in consideration of the §40 interest paid, that the time of payment of the note should be extended one year. James Kerns testifies: “ I went and paid her the money. I paid her the money on condition that she would extend the note. I asked her if she would wait a year, when she took the money and gave credit on the note. She said she would like to see Richard. I told her he was sick and had gone away and was not able to see anybody now, so she said she would have to wait, and took the interest. The agreement I made with her was, she was to take the interest with that agreement to wait; that is the way it was, and if she had not agreed to wait I would not have paid the interest.” Appellee testifies: “He told me lie would pay me the interest if I would extend the note another year, and I told him I would do that. He said if I would extend the time of the payment of the note he would pay me the interest on that day, and I finally agreed to do that, and took the money and did extend the time.” Hannah Ryan says : “ When James Kerns came there on that day, he told my mother he had come to pay the interest. He told her she had better take the interest now and wait for another year. She said she would take the interest and would not sue the note for another year, and she did take it.”

It would seem, then, that the requirements of the instruction that the agreement for an extension should be in express terms, and that the time for the payment of the §40 interest should have been agreed upon and fixed “ expressly” or in direct terms, could not have been detrimental to the rights of appellant on the trial in question. It conclusively appeared, and there was no evidence to the contrary, that the contract, if any valid contract was made, was an express contract, and that it was expressly and plainly agreed that the §40 should be paid on the day the agreement was entered into, and further that it was in. fact actually paid on that day. The only controverted question of fact left by the instruction for the jury to settle, was whether or not the day of the agreement and payment was before the note and interest thereon were due. In an instruction given at the request of appellant the jury was told that if “James Kerns, for and on behalf and at the request of Richard Kerns, paid the interest on said note to Mrs. Ryan, the holder of said note, before such interest became due, and that in consideration of such interest being paid before it was due, Mrs. Ryan then and there extended the time of payment of said note one year, and agreed not to sue the note for one year, then such extension of time or agreement, without the consent of the surety, will release the surety from all liability on said note, and you will find the issues in this case for the defendant.” The jury was also instructed that the validity and binding force of the agreement did not depend upon the amount of the consideration, and that if the agreement was made for the consideration of the payment of interest before it was due, then' the agreement was valid and binding, notwithstanding the consideration may have been of but little value. The jury found, under thesé instructions, that the $40 interest was paid after it accrued and was due by the terms of the original note; that the makers of the note were already liable therefor, and that the agreement for an extension, for want of a new consideration therefor, was invalid and of no binding force.

The other criticisms made upon the instructions given by the court do not seem to require special notice. Some of the instructions contained abstract legal propositions, but they stated the law with substantial correctness, and there was evidence before the jury upon which to base them.

We find no manifest error in the record, and the judgment is affirmed.

Judgment affirmed.


text:
    John T. Cheney v. William Barge.

      Bankruptcy—Discharge as a Defense—Neto and Contingent Promise to Indemnify Surety—Pleading—Waiver of Objection—Oral Evidence—Time of Promise—Delivery of Letter.

    1. The promise by which a discharged debt of a bankrupt is revived may be an absolute or a conditional promise, but it must be clear, distinct and unequivocal..
    2. Whether the plaintiff should declare specially upon a conditional promise is somewhat doubtful. But where the declaration consists of the common counts, and the conditional promise is set up in the replication, the defendant by rejoining whives the defects, if any, in the pleadings.

      3. A new promise, to bind a bankrupt, may be founded on a contingent liability, as that of a surety.

      4. In the case presented, it is held: That oral evidence to show that when the note was given and when the letter was written and delivered there was no other transaction between the parties, was properly admitted to identify the claim in suit and show that the letter applied to it; and that the letter having been received through the mail after the filing of the petition, although written before, the promise contained therein is binding upon the defendant.
    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Lee County; the Hon. William Bbown, Judge, presiding.
    This is an action of assumpsit The declaration consists of the, common counts. The pleas are: 1st. The general issue. 2d. Discharge in bankruptcy. Replications to second plea: 1st. That cause of action accrued subsequent to adjudication of bankruptcy. 2d. That cause of action was not provable in bankruptcy. 3d. That defendant was not discharged in bankruptcy. 4th. Hew promise to pay if defendant lived and prospered, and that he did prosper. 5th. Ratification of promise after discharge and similiter to first plea. Rejoinders: 1st. That defendant did not promise after discharge. 2d. That defendant had not prospered, and similiter to rej oinders.
    There was a jury trial in the Lee Circuit Court, and verdict aud judgment were for William Barge, plaintiff below and appellee here, and, against John T. Cheney, defendant below and appellant here, for $304.53.
    Appellant and appellee executed a promissory note to the Dixon Rational Bank for borrowed money, in which appellant was the principal debtor and received the entire consideration, and appellee was a mere security; and said note was as follows “
    e6 $175.39. Dixon, III. Feb. 23, 1878.
    “Rinety days after date we or either of us promise to pay the Dixon Rational Bank, or order, at their office, one hundred and seventy-five and 39-100 dollars, with interest at ten

      per cent, after maturity, until paid, and fifteen per cent, attor-ney’s fees if collected by suit.
    “Ho. 9,953. Due Hay 27th.
    “John T. Cheney, “Wh. Babge.”
    On the 28th day of August, 1878, the appellant wrote and mailed at Sioux City, Iowa, a letter addressed to appellee. at .Dixon, Illinois, and said letter, omitting the day and place of date, address and signature, was as follows:
    “ Fbiend Babge : I often think of the episode—I guess that is it—that occurred on the sidewalk near the Hachusa House on a Sunday evening, and as often think of the long-continued friendship that had existed between us. The only difference between us was, I knew that I was helpless to do anything for yon, and you thought I might be, and perhaps was. -If I live and am prospered no man who helped me (without remuneration) will be no poorer for me, if not otherwise. That is all there is of it. And if any man was to ask you if you believed in me, you would say ‘yes,’and I know it. Hy mistake was in assigning to P. & Emerson. With kindest regards, I am yours truly.”
    This letter was received by appellee at Dixon, Illinois, by due course of mail, some three or four days after its date, or on or about the 31st day of August, 1878. At that time three or four days was the usual time required for a letter to come by mail from Sioux City to Dixon.
    On the 29th day of August, 1878, appellant filed in the District Court of the United States for the District of Iowa, his petition in bankruptcy, and was adjudged a bankrupt,; and was, on the 2d day of July, 1879, by the decree of said court, forever discharged from all debts and claims provable against his estate, and which existed on the 29th day of August, 1878, and a certificate of discharge in bankruptcy was duly issued to him. After the 23d day of February, 1878, there were no business relations between appellant and appellee other than those here involved; and at the date of the letter and of its receipt, and at the time of the adjudication in bankruptcy, and at the date of the payment of the note by appellee, there was no other unsettled matter or indebtedness between them. The evidence tended to prove that appellant, since the date of his letter to appellee and his discharge in bankruptcy, had prospered in business at Sioux City and Missouri Talley Junction, and was the owner of real estate from which he could realized §75,000.
    Messrs. Crabtree & Dixon, for appellant.
    In order to remove the bar created by a discharge in bankruptcy there must be a clear, distinct, unequivocal and express promise made to pay the debt. This letter nowhere refers to any debt owing by the writer to the person addressed; it contains no promise to pay anything. At the time ii was written appellant was not the debtor of appellee. Then, and for more than a year afterward, appellee was simply his surety on a note payable at the Dixon National Bank. True, it was a contingent liability and one provable in bankruptcy in favor of the surety, but no mention whatever is made of it in this letter. It can not be told from the letter or from any other proof in the record that the writer intended to refer to the matter out of which this indebtedness arose. He asserts that a long-continued friendship had existed between them, and it may fairly be inferred that appellee had helped him, but in what manner he does not state. At the best it is a mere declaration of an intention, and is not an unequivocal promise to do anything. The act for which appellee now asks indemnification is not mentioned; the obligation is not identified; all of which are essentials indispensable to constitute a promise that will remove the bar of a discharge in bankruptcy. Allen v. Ferguson, 18 Wall. 1; Elwell v. Cumner, 136 Mass. 102.
    A declaration by a discharged bankrupt that he was going to pay the particular debt as soon as he. was able and that he was going to pay all his honest debts except some in the city, though expressive of an intention, does not constitute an engagement to pay sufficient to avoid the legal effect of his discharge. Yoxtheimer v. Keyser, 11 Pa. St. 364; S. C., 51 Am. Dec. 555.
    In Dannan v. Gould, 141 Mass. 16, the debtor wrote; “ I wish I could give you some money, John, as you ask, but can not at present. I shall not take any notice of your abuse of me till I have paid you the amount I owe you, which I shall surely do, and after that we will have another settlement.” But the court held the letter did not show the debtor intended to waive his discharge or to create a new obligation.
    There must be an expression by the defendant of a clear intention to bind himself to the payment of the debt. The new promise must be distinct—unambiguous. The mere recognition or acknowledgment by a bankrupt of a debt which has been discharged by bankruptcy, does not create a legal obligation on him to pay the debt; the promise must be express. Porter’s Adm’r v. Porter, 31 Maine, 169; Merriam v. Bailey, 1 Cush. 77. And payment by the bankrupt of part of the principal of the original debt does not revive the obligation of the remainder. White v. Cushing, 30 Me. 267; Stark v. Stinson, 23 N. H. 259. Mor does the payment of interest on the entire principal. Com. Inst. for Saving v. Littlefield, 6 Cush. 210; St. John v. Stephenson, 90 Ill. 82.
    A debtor, after his discharge, wrote to his creditor : “ I mean right; I will pay you something on accountand “ I shall pay you something as soon as possible.” Held, not to take the debt out of the operation of the discharge. Biglow v. Norris, 139 Mass. 12.
    It is well understood that less proof is required to revive a debt barred by the Statute of Limitations than one barred by bankruptcy. Willets v. Cotherson, 3 Ill. App. 644.
    Tet, in a case of debt barred by the Statute of Limitations, it is said: “ If there be no express promise, but a promise to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay, if the expressions be equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inference, which may affect different minds in different ways, we think they ought not to go to the jury as evidence of a new promise to revive the cause of action.” Bell v. Morrison, 1 Pet. 362; Carroll v. Forsythe, 69 Ill. 127.
    The expressions contained in the letter are “equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inference, which may affect different minds in different ways,” and for that reason ought not to go to the jury. Carroll v. Forsythe, 69 Ill. 127; Bell v. Morrison, 1 Pet. 362.
    Mr. W. D. Barge, for appellee. ■
    The new promise, in issue by the pleadings, with the occurrence of its conditions, is fully established by the evidence, and is amply sufficient to sustain this judgment.
    The testimony of the plaintiff and the letter from the defendant clearly prove the new promise. And this oral evidence of the plaintiff is competent, and must be considered in connection with the letter, and the letter read, construed and understood in the light of it. “ The plaintiff’s testimony was rightly admitted for the purpose of showing that no other debt was due him from the defendant when the letter was written, and of identifying the claim in suit.” Cook v. Shearman, 103 Mass. 21, 23. It appears from this evidence, that the plaintiff signed the note as surety, and paid it after the defendant was discharged in bankruptcy.
    “Mo precise form of words is required to make a new promise.” Hubbard v. Farrell, 87 Ind. 215, 217.
    The promise contained in the defendant’s letter is sufficient. Cook v. Shearman, 103 Mass. 21; Kingston v. Wharton, 2 Serg. & R. 207.
    “A declaration by the bankrupt that he is able and willing to pay the debt, amounts to an express promise to pay it.’5 Evans v. Carey, 29 Ala. 99; Dearing v. Moffit, 6 Ala. 776; Harris v. Peck, 1 R. I. 262; St. Johns v. Stephenson, 90 Ill. 82; Herndon v. Givens, 16 Ala. 261.
    Slight evidence is sufficient to establish a new promise. Marshall v. Tracy, 74 Ill. 379.
    A conditional promise will remove the bar of bankruptcy if the evidence shows the performance of the condition. St. John v. Stephenson, 90 Ill. 82; 1 Pars. Cont. *309 (3d Ed.); Scouton v. Eislard, 7 Johns. 36.
    A new promise made after the petition is filed and before the discharge in bankruptcy is granted, is sufficient. Katz v. Moessinger, 7 Ill. App. 536; Otis v. Gaflin, 31 Me. 567; Lerow v. Wilmarth, 7 Allen, 463.
    In the case at bar, the new promise was made after the defendant filed his petition in bankruptcy. The letter containing the promise was written the day before, and received about two days after that petition was filed. The new promise was therefore made after the filing of the petition. A promise, like a contract', is made where mind meets mind, and if by letter, that is where the letter containing the promise is received by the promisee. 1 Pars. Cont. 406 (3d Ed.).
    And if made before the filing of the petition in bankruptcy, the new promise is valid and the discharge is no defense to such promise.
    “ If a debtor, on the eve of bankruptcy, promise his creditor to pay the debt, when he shall be able, his certificate is no bar to a suit brought on the new promise.” Kingston v. Wharton, 2 Serg. & R. 207.
   Baker, J.

In St. John v. Stephenson, 90 Ill. 82, it is held that the promise by which a discharged debt of a bankrupt is revived may be an absolute or a conditional promise, but that it must be clear, distinct and unequivocal. The same rule obtains in the Supreme Court of the United States, and in the courts of last resort in other States. The mere expression of an intention to pay the debt is not sufficient; but no precise form of words is required to make a new promise. An intention is but a purpose formed in the mind; but a promise is an express undertaking or agreement to carry that purpose into effect, and must be express, in contradistinction to a promise implied from an acknowledgment of the justness or existence of the debt. Hubbard v. Farrell, 87 Ind. 215, and cases there cited.

In Cook v. Shearman, 103 Mass. 21, the important expressions found in the letters written by the bankrupt were: “ I expect to pay you all there is due you with interest to the time of payment, and I will certainly see to it that you are no loser by me. Early in July I hope to pay the amount due you, possibly sooner than that. I shall certainly do so as soon as possible. I shall see to it that you are not the loser for your courtesy.” It is plain that the statements found in these letters of the expectations and hopes of the writer were mere expressions of intention, and were wholly inoperative to impart vitality to a dead indebtedness. The court held the debt of the bankrupt was revived, and speaking through Hr. Justice Gray, now' an Associate Justice of the Supreme Court of the United States, said: The statements in those letters that the defendant expects to pay the plaintiff all that is due to him, and hopes to be so situated as to send him the full amount of his bill, with interest, coupled with the assertions that he will see to it that the plaintiff does not lose by him, amounted to a distinct and unequivocal promise.” It is manifest that the salient words to constitute the promise were those in which he undertook and agreed .to see to it that the plaintiff did not lose by him.

In the case at bar, the words are ° ec If I live and am prospered, no man who helped me (without remuneration) will be no poorer for me, if not otherwise. That is all there is of it, and if any man was to ask you if you believed in me, you would say ‘yes,’ and I know it.” Appellee helped appellant without remuneration by becoming his security for borrowed money, and this money he was legally bound to pay to the lender when called upon therefor, and afterward did pay. He would necessarily be the poorer for that help, unless appellant repaid him. Appellant assures appellee that no man who helped him, appellant, without remuneration, will be the poorer for him. The words used import and amount to a clear, distinct and unequivocal undertaking and promise. They are nota mere recognition and acknowledgment of an indebtedness. USTor are they simply the expression of the hopes, expectations and intentions of appellant. Cook v. Shearman, seems to be very much in point. In substance and in legal effect there can be no difference between the assertion that one will see to it that a party does not lose by him, and the assurance that if he lives and is prosperous then such party will be no poorer for him—except that in the one case the undertaking is absolute' and in the other it is conditional. In this case the assurance given is made emphatic and pointed by the use of these words: “That is all there is of it, and if any man was to ask you if you believed in me, you would say ‘jms,’ and I know it.”

Many of the cases cited by appellant on this branch of the pending controversy are clearly distingnishab'e from the case at bar and are not in conflict with the views we have expressed. Others of them we are not inclined to follow. If language is to be construed as meaning what the words used plainly indicate, it would seem the expression “I shall not take any notice of your abuse of me till I have paid you the amount I owe you, which I shall surely do,” is equivalent to the statement “I shall surely pay you the amount I owe you.” We are wholly unable to comprehend upon what ground it can i-easonably be held that snch words do not amount to and constitute a plain and unequivocal promise to pay. Men in their ordinary business transactions would so understand them. To our minds, snch language, ex vi term.ini, imports a promise and undertaking.

It is objected that the alleged new promise being a conditional promise,'appellee should have declared specially upon such promise. There is some conflict in the authorities upon this point, and in this State, in respect to a conditional promise, it has not been expressly decided either way. In 1 Chit. PI. 54, the doctrine is stated xvith some doubt; he says: “When the subsequent promise is effectual, it is sufficient to declare upon the original consideration, unless where the promise is conditional, in which case it seems to be necessary fur the creditor to declare specially.” In Wait v. Morris, 6 Wend. 394, it was held that where a conditional promise forms the basis of the suit, the plaintiff may either declare upon it specially, or set it forth in his declaration. Like decisions hax'e been made by other respectable courts. In Marshall v. Tracy, 74 Ill. 379, no question in respect to a conditional promise arose, and what the court there said hardly amounts to the expression of an opinion in regard to the point here in controversy. In St. John v. Stephenson, 90 Ill. 82, the court said: “The occurrence of the condition must be

averred if the promise be conditional;n but there is nothing in the case to indicate that such averment, and the averment of the new promise itself, might not be set up in the replication.

But waiving this consideration, which is a matter of some doubt, appellant did not demur to this replication of a conditional new promise, but filed rejoinders thereto, denying both the making of the conditional new promise and the happening of the contingent event alleged therein. Assuming that by interposing a demurrer he could have compelled the plaintiff to so amend his declaration as to base his right of action stated therein expressly upon the new promise, yet by his not doing so, but on the contrary filing issuable rejoinders thereto, he must be considered as having elected to waive the defects and informalities in the pleadings. It is perfectly manifest from the pleadings, and the issues formed thereon and submitted to the jury, the latter could not have found a verdict for appellee without both the alleged new promise and the happening of the condition stated therein were duly proved at the trial. It would seem the defects in the pleadings, if any, are mere defects in 'matter of form, for it must be admitted that all the allegations necessary to sustain the action, verdict and judgment are found not only in the record, but in the pleadings of appellee. Whatever defects there are were waived by appellant, and such defects are added by intendment after verdict. See also, Secs. 3, 6 and 7 of the statute of amendments and jeofails.

Oral testimony was properly admitted by the trial court for the purpose of showing that when the note was given and when the letter was written and delivered, there was no other transaction or business between the parties; it was necessary in order to identify the claim in suit, and apply the letter to the subject-matter to which it related. Cook v. Shearman, supra, is directly in point. The same rule has been held in this State. Reed v. Ellis, 68 Ill. 206; Marshall v. Gridley, 46 Ill. 247.

It is urged that at the time the letter was written appellant was not the debtor of appellee; that then, and for more than a year afterward, appellee was simply his surety on a note payable to the Dixon National Bank. If there was, in fact, no indebtedness between them, then it would seem the principle of equality should require it to be held the debt arose after bankruptcy, and the discharge was no bar. But the claim of appellee against appellant was in existence and provable in his favor, against the estate of the bankrupt when the petition in bankruptcy was filed. Bump’s Bankruptcy, 7th Ed., 647, Sec. 5070, R. S. U. S. The relation of debtor and creditor between them commenced at the date of the note, and not from the time the surety made payment. Choteau v. Jones, 11 Ill. 300. A new promise to bind a bankrupt may be founded on a contingent liability, for instance, that of a security for his principal debtor before payment of the debt. Earle v. Olinn, 2 Exch. 71. See Hare and Wallace’s notes to Trueman v. Fenton, 1 Smith’s Load. Cas., 6 Am. Ed., 968.

It is insisted upon by appellant that as the letter was written and mailed on the 2Sth day of August, 1878, and the petition in bankruptcy was not filed until the 29th day of the same month, the promise contained in the letter, if any, could not affect a discharge granted upon the proceeding begun subsequent to the day on which the letter was so written and mailed. The certificate of discharge takes effect from the commencement of the proceedings in bankruptcy and the promise to pay to be binding as a new promise must be made by the debtor after the commencement of such proceedings. If a new promise to pay is binding, so. that it can be enforced by the courts, it must be upon the ground it is a contract. When appellant wrote the letter at Sioux City, Iowa, and mailed it, properly addressed to appellee at Dixon, Illinois, he made the postal authorities his agents to carry and deliver the letter. He must be presumed to have had in contemplation that the letter would be carried to Dixon by due course of mail, and would reach there in the usual time required at that time for a letter to go by mail from Sioux City to Dixon. It did in fact reach there in such usual time and was received by appellee on or about the 31st day of August, either that day or the next succeeding day. This was just what appellant expected and intended. It is in substance as though appellant had, on the day of the receipt of the letter, met appellee and made to him the promise by word of mouth. Mind did not meet mind until the letter was received by appellee. This is not a case where there was delay and hinderance and a failure to have the letter reach the proper party at the propei- time. When such cases arise, it will be time enough to dispose of the extreme and supposititious cases suggested by counsel in their argument.

In the view we have taken of the case, it is wholly unnecessary to consider the exceptions taken to the instructions of the court.

We find no error in the record; the judgment is affirmed.

Judgment affirmed.


author: Bakeb, J. Laoet, J.

text:
    County of Franklin v. County of Henry.

      Paupers, Insane Persons and Criminals—Apparent Residence Based on Employment—Liability of County for Bupport.

    1. Persons under legal restraint and insane persons are incapable of losing or gaining a residence. This rule applies to persons confined in prison, lunatics confined in an asylum and paupers sent to a poor-house.
    2. Where one comes into a county or town and makes no arrangement for a home and has no fixed actual residence, but hires out and is employed by some person, his apparent residence is at the place of his employment.
    3. The county where a person resides when he falls sick or becomes insane, or a pauper, even though his residence there is but temporary, is liable for his support primarily and until it can show that some other county is therewith legally chargeable, and is able to impose the burden of his support upon such county.

      4. Where a person has been transferred from the penitentiary to an insane hospital and from there, by mistake, to the poor-house of a county of which he was not a resident, such county can recover the amount paid for his support from the county of his apparent residence.
    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Henry County; the Hon. John J. Glenn, Judge, presiding.
    A jury was waived in this ease, and the cause was submitted to the Circuit Court upon the following agreed state of facts :
    “ It is hereby agreed by counsel for plaintiff and defendant that one James Smith, who was and had been in the employ of Mr. Abbott asa farmvlaborer in Henry County, Illinois, for about one week, was, on or about September, 1867, arrested in said county upon the charge of an assault to commit a rape. That at the October term, 1867, of the Henry County Circuit Court, he was indicted for said offense. That at the following February term he was tried, convicted and sentenced to the penitentiary at Joliet for the term of five years. That some time previous to July 29, 1870, and while in the penitentiary, he became insane and was transferred to the insane hospital at Jacksonville. That about Hovember, 1877, he was transferred to the insane hospital at Anna, Illinois. That about March 11, 1882, he was transferred to the poor-house of Franklin County under the then belief that he was a resident of and chargeable to that county. He was never a resident of Franklin County and he had not resided in Henry County previous to his employment aforesaid. The only evidence of his residence in Henry County is his having been employed as aforesaid and being arrested while there. It is also agreed that Henry County has paid for the support, etc., since March, 1884, and that Franklin County has paid out for the support of said James Smith the sum of $251.45; and if, from the above facts, Henry County is liable,' judgment shall he entered for said sum of $251.45 and costs of suit.”
    It was also stipulated of record “ that the only question of law involved in this case is, whether, under the above stipulation, the Comity of Henry is liable for the amount paid by said County of Franklin for the support of said James Smith as shown in the foregoing stipulation.” The court found the issues for the County of Henry, and entered judgment against the County of Franklin for costs.
    Mr. W. S. Oauteell, for appellant.
    Mr. T. E. Milchkist, for appellee.
   Bakeb, J.

The general rule is that persons under legal restraint and insane persons are mca]3able of either losing or gaining a residence. A person confined in prison under the judgment and sentence of a court does not thereby change his residence,and a lunatic confined in añ asylum does not thereby change his residence. The same rule is applied to the case of a pauper who is sent to a poor-house or poor-farm. See Town of Freeport v. Board of Supervisors, 41 Ill. 495, and cases there cited.

James Smith has been either in jail, in the penitentiary, in an insane hospital or in a poor-house since the time he was arrested for crime in Henry County in September, 1867. It is plain lie has neither lost nor gained a residence since that date. If he was then a resident of Henry County, it follows he was a resident of said county when he became insane and chargeable as a pauper, and also at the commencement of six months immediately preceding his becoming so chargeable. Wliat was the status of Smith in respect to residence at the time he was taken in custody on a criminal charge? He was, and for about a week had been, a farm laborer in the employment of a Mr. Abbott in Henry County. The pauper act provides, with the exceptions therein enumerated, that every county shall relieve and support all poor and indigent persons lawfully resident therein. Sec. 17 of the act provides: “ The term residence, mentioned in this act, shall be taken and con. sidered to mean the actual residence of the party, of the place where he was employed, or in case he was in no employment then it shall be considered and held to be the place where he made it his home.” In Town of Dorr v. Town of Seneca, 74 Ill. 101, it was held that where a person comes into a county or town, and makes no arrangement for a home, and has no fixed actual residence, but hires out and is employed by some person, then he has an apparent residence at the place of such employment and falls within the second class of persons mentioned in the section of the pauper act above quoted. From what we have said, the conclusion results that Smith, at the time of his arrest, had an apparent residence, even if not an actual, fixed and permanent residence, in Hemy County, and that within the intent and meaning of the pauper act he was lawfully resident therein and it also follows that this status, or consideration of his in respect to residence, has continued from that time hitherto.

It is urged that the presumption is that Smith had an actual and permanent residence in some other county in this State, when he came to Henry County, and that as a condition precedent to a right of recovery, appellant must negative the fact that Smith had a residence elsewhere in the State. Every one has a domicile of origin, which he retains until he acquires another domicile; hut there is no presumption, either of law or of fact, that the permanent home and residence of Smith was elsewhere in this State, and not in some other State or foreign country. When it is shown he has a place of employment, then such place is, under the statute, his apparent place of residence, and & prima facie case of liability for support is made out against such place of residence.

A poor person, whether sane or insane, has a right to live, and must not be permitted to die from want or exposure. Such is the humane intention of the law. The county where he resides when he falls sick, or becomes insane, or a pauper, even though his residence there is but temporary, is liable for his support primarily, and until it is able to show the county to which such poor person is properly and legally chargeable under the statute, and is enabled to impose the burden of support upon' such latter county.

If Henry County could establish the fact that Smith had an actual residence in some other county of the State, it is probable it would nave a remedy over.against such other county; and, perhaps, if such fact appeared, Franklin County would be required to look for remuneration to such other county.

But no residence anywhere, except tho apparent residence based upon employment in Henry County, appears in the case.

Smith never was a resident of Franklin County. Through a mistake made by the authorities of the State penitentiary with reference to his prison number, he was transferred from the insane hospital to the poor-house of Franklin County, upon the erroneous supposition that he was a resident of and chargeable to that county. From the necessity of the case, Franklin County was compelled to support him, until it could be ascertained to what county he was legally chargeable. He could not be permitted to die from want and starvation; and being insane he could not with safety to himself or others be turned loose upon the community.

In our opinion the judgment of the Circuit Court was erroneous. It is reversed and the cause is remanded with directions to enter judgment upon the agreed case in favor of the County of Franklin and against the County of Henry for the sum of $251.45 and costs.

Reversed and remanded.

Laoet, J.

That Henry County was primarily liable for the support of Smith, after he became insane, by virtue of his residence in that county, and his having been sent to the penitentiary for crime committed in that county, can not be disputed; and such liability, under the statute, has been recognized by that county by paying for his support since 1884. By accidental circumstances, not produced by appellant, it was forced to support Smith, and by so doing, to that extent, relieved appellee from the burden of his support for the length of time he was supported. In equity and good conscience, appellee shoifid reimburse appellant for so' doing.

If some other county in this State were, even, known to bo liable to appellee, in my opinion the appellant would not be compelled to first seek its remedy against such county, but it might sue the appellee and recover for tho money expended for its benefit, or, perhaps, it could sue the appellee and such other county jointly, or such other county singly, if it chose. As against appellant, each county would owe a common duty to support Smith. Appellant owed no duty to support him. City of Peoria v. Simpson, 110 Ill. 294.

But in this case, no such other county is known to be liable, and the agreed state of facts clearly shows liability existing against appellee. Thus far, I fully concur in the opinion.


author: Bakee, J.

text:
    Marseilles Manufacturing Company v. Rockford Plow Company.

      Replevin—Chattel Mortgage to Secure Series of Notes—Assignment of One—Priority of Lien—Rights of Assignee—Possession.

      . 1. Where several notes maturing at different dates are secured by a chattel mortgage, and the condition of the mortgage is broken by default in payment of any of the notes, it is optional with the mortgagee to take possession on the first default or await the maturity of the last note.
    2. Where the mortgage secures several notes clue at different times, arid there is no special provision to the contrary, they have priority of lien an 1 are entitled to payment from the proceeds of the mortgaged property in the order in which they become due and payable.
    3. Where the powers given in a chattel mortgage to taire possession of the mortgaged property and make sale thereof, are expressly conferred upon the mortgagee and not upon his assigns, a mere assignee of one of the notes secured by the mortgage has no right to assume possession of and sell the property. If he does so, the mortgagee may maintain an action of replevin to recover the mortgaged property,
    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Winnebago County; the Hon. William Brown, Judge, presiding.
    The Marseilles Manufacturing Company replevied from the Rockford Plow Company a corn sheller and horse power, and fixtures; and on trial in the Winnebago Circuit Court without a jury the issues were found and judgment rendered for the defendant, and a writ of retorno habendo awarded.
    The facts were agreed upon, at the trial, as follows: On the 26th day of December, 1885, plaintiff, by its agents, Farmer Brothers, sold to one W. C. Morris of the town of Rockford, the property replevied, in payment of which the said Morris gave his four promissory notes of said date, one (first) for the sum of §05, due March 1, 1886; one (second) for the sum of §64, due June 1, 1886; one (third) for the sum of 865, due September 1, 1886, and one (fourth) for the sum of §64, due January 1, 1887, with interest on all at the rate of eight (8) per cent., all of which were payable to plaintiff.
    To secure said notes the said W. C. Morris executed a chattel mortgage upon the property so sold with other property of date December 26, 1885, which mortgage was properly acknowledged and recorded in the recorder’s office of said Winnebago County, in boob 27 of Mortgages, at page 571. The said notes and mortgage are considered admitted in evidence. In payment of commissions to Farmer Brothers upon said sale, plaintiff assigned the third note of said series, to wit, the one maturing September 1, 1886, said assignment being made prior to the maturity of said third note, but kept the mortgage with the other three notes. Farmer Brothers in turn assigned said note to the defendant in payment of a preexisting debt without releasing their liability as assignors. Default was made in payment of the first and second notes, then and still in the hands of the plaintiff, but the mortgage was not foreclosed on account thereof. Upon the maturity of the third note, the said third note then and still being the property of the defendant, and default being made in its payment, defendant took possession of the property replevied in this suit under the mortgage and foreclosed the same, using a certified copy of the record aforesaid in lieu of the original mortgage, which was still in the possession of plaintiff, and purchased the said property at said foreclosure sale for the exact amount of the debt evidenced by said third note and costs of sale in payment thereof. Plaintiff had no notice of the foreclosure, nor did defendant ever account to it upon its bid.
    Upon notice of the foreclosure, plaintiff being then still the owner of the first, second and fourth notes, and no part of the purchase price of said machine ever having been paid, it demanded a return of the property herein replevied, which being refused, this suit was brought before J. G. Manlove, a Justice of the Peace in and for said County of Winnebago. From the judgment rendered thereon by said Justice, an appeal was taken iu the name of defendant by Farmer Brothers who had been called upon by defendant to pay said note on account of their liability as assignors. Defendant is still the owner of said third note, but Farmer Brothers are defending this suit at their expense for self-protection.
    The mortgage provided that if default should he made in the payment of any or either of the notes, etc., then “ the party of the second part, his heirs, executors, administrators, or any of them, shall thereupon have the right to take immediate and exclusive possession of said property and every part thereof, and for that purpose may pursue the same, or any part thereof, wherever it may be found, and also may enter any of the premises of the said party of the first part, with or without force or process of law, wherever the .said goods and chattels may be, or supposed to be, and search for the same, and, if found, to take possession of, and remove, and sell, and dispose of said property, or any part thereof, at public auction, to the highest bidder, after giving ten days’ notice of the time, place and terms of sale, together with a description of the property to be sold, either by publication in some newspaper in the city of Rockford or by similar notices posted up in three public places in the vicinity of such sale,, or at private sale, with or without notice, for cash or on credit, as the said Marseilles Mfg. Go., their heirs, executors, administrators or assigns, agents or attorneys, or any of them, may elect.”
    At the trial, the Circuit Court refused to hold as law applicable to the case two written uro positions submitted by plaintiff, which were as follows:

      “ 1. If a series of four notes maturing at different times are secured by a chattel mortgage with a provision permitting a foreclosure on default in the payment of any note, the holder of said notes may foreclose said mortgage upon the default in the payment of the first or any note, or he may wait until the default in the payment of the note last maturing. In the latter event the lien of the notes first maturing continues until the maturity of the last note, unless the notes or mortgage provides otherwise.”
    “ 2. If a series of four notes mature at different times and are secured by a chattel mortgage, in the absence of a contract to the contrary, they have priority of lien in the order of their maturity, and if the third note has been assigned without agreement as to its having priority of lien over the first and second notes, the first and second notes, in the hands of the payees, are entitled to payment out of the security before the third, then in the hands of an assignee.”
    Mr. A. D. Early, for appellant.
    “ When several notes maturing at different dates are secured by a chattel mortgage, and the condition of the mortgage is broken on default in payment of any of the notes, it is nevertheless optional with the mortgagee to take possession on the first default, or to await the maturity of the last note and then take possession.” Cleaves v. Herbert, 61 Ill. 126; Barbour v. White, 37 Ill. 164; McConnell v. Scott, 67 Ill. 274.
    •If a series of notes mature at different times and are secured by a chattel mortgage, in the absence of a contract to the contrary, they have priority of lien in the order of their maturity. Vansant v. Allmon, 23 Ill. 26.
    The assignee of the note first due is first entitled to satisfaction out of the mortgaged property. The holders of the other notes can redeem in succession, according to their priority, as they may become due. Funk v. McReynolds, 33 Ill. 481; Gardner v. Deiderichs, 41 Ill. 158.
    “It may be regarded as a well settled rule of law in this State, that where a mortgage or deed of trust has been given to secure the payment of several notes, which become due at different times, tlie notes have a priority of lien, in the order in which they become due and payable.” Koester v. Burke, 81 Ill. 436.
    If one of the series of notes has been assigned by the payee, the assignee acquires no greater right to the security than the payee. This follows from the rule in this State, that the debt is the principal and the security the incident. Sargent v. Howe, 21 Ill. 148.
    The assignee is subrogated to the position of the payee. If the assignee hold the third note of the series, then he occupies the position in relation to the security that the payee did, and the first and second notes of the series must he first satisfied out of the security or otherwise. It makes no difference whether the third note is in the hands of the assignee, and the others are in the hands of the payee. As before stated, the security must be treated as consisting of as many mortgages as there are notes secured by it, the order of priority being the same as the order of maturity of the notes.
    Hr. B. A. Knight, for appellee.
    An assignee of notes has a right to foreclose when default has been made. Sargent v. Howe, 21 Ill. 148. Appellee, therefore, had a right to take possession of the mortgaged property involved herein and sell the same to satisfy his note.
    The point raised by appellee in this case is now for the first time raised in any of the higher courts of the State of Illinois, and is as follows, to wit: When a mortgagee sells one ór more of a series of notes, and retains the remainder of the series, is the assignee entitled to a priority of lien as against the mortgagee, with respect to the note or notes so transferred without regard to the order in which the notes held by the parties mature?
    This proposition has been raised in other States, and by weight of authority has been decided in favor of the position taken in this case by appellee. 3 Pom. Eq. Jur., Sec. 1203, and p. 182, et seq.; Anderson v. Sharp, 6 N. E. Rep. 900; Waterman v. Hunt, 2 R. I. 298; Salzman v. His Creditors, 2 Rob. (L. A.) 242; Barkbull v. Herwig, 30 La. Ann. 618; McClintic v. Wise’s Adm’r, 25 Gratt. 448; Cullum v. Erwin, 4 Ala. 425; Foley v. Rose, 123 Mass. 557; Forwood v. Dehoney, 5 Bush. 174; Jones on Mortgages, Vol. 2 See. 1701, and also 604 eq.; Bryant v. Daniel, 6 Gray, 564; Merchants Bank v. Bank of Niagara, 6 Wend. 410.
    Assuming, for the sake of argument, that appellee had no authority in the law to take possession of and sell the mortgaged property nor yet power to do so under the mortgage, yet, having a lien by virtue of the mortgage he had a right to take possession of the property, at the maturity of his note, and had then, at the least, a common interest with appellant in the property. Being then, a joint owner with appellant, or, in other words, a tenant in common, of the property, the action of replevin could not be maintained between them. The possession of one is the possession of both. See Garr v. Hurd, 92 Ill. 305, and cases cited.
   Bakee, J.

1. If a power be given to the donee and his assigns, it will pass by assignment, if the power be annexed to an interest in the donee. 4 Kent’s Com. 327. In case of a power to sell or take possession of property and sell, given by a mortgagor to the mortgagee and his assignee, and the mortgage is to secure a promissory note or notes, the power is appendant to the estate and coupled with an interest, and part of the mortgage security, and passes by the assignment of the mortgage debt and vests in the assignee, and such assignee may execute the power. In the case at bar we will waive the question whether or not the power donated by Morris in the mortgage to the appellant corporation was divisible, whether or not the assignments of the third note, in the series of four notes, carried with them a corresponding portion of the power to appellee, the second assignee of said note. Wilson v. Troup, 2 Cow. 195; 4 Kent’s Com. 147. The powers given in this chattel mortgage to take possession of the mortgaged property and make sale thereof, were expressly conferred upon the mortgagee, but they were not given to its assignee or assignees. The only authority vested by the instrument in that behalf in the assignee of the mortgagee, was the right to make an election in respect to the mode and manner in which the donee of the powers should exercise the power of making sale. The conclusion must be, that the sale of the mortgaged property by appellee as assignee of the third note, was not authorized by the mortgagor and donor of the power, and was null and void; and that its possession of such property as purchaser at said sale was unlawful. Pardee v. Lindley, 31 Ill. 174; Hamilton v. Lubukee, 51 Ill 415; Strother v. Lord, 54 Ill. 413; Mason v. Ainsworth, 58 Ill. 163.

2. The trial court erred in not holding as law, and as applicable to the case in hand, the two written propositions submitted by appellant. The doctrine is, that where several notes maturing at different dates are secured by a chattel mortgage and the condition of the mortgage is broken on default in payment of any of the notes, it is, nevertheless, optional with the mortgagee to take possession on the first default, or to await the maturity of the last note and then take possession. Barbour v. White, 37 Ill. 164; Cleaves v. Herbert, 61 Ill. 126; McConnell v. Scott, 67 Ill. 274.

So, also, whatever may be held elsewhere, the established rule in this State is, that where there is a mortgage securing several notes due at different times, and there is no special provision or agreement to the contrary, the notes have priority of lien, and are entitled to payment, from the proceeds of the mortgaged ¡property, in the order in which they become due and payable, the note first maturing having preference. Vansant v. Allmon, 23 Ill. 26; Funk v. McReynolds, 33 Ill. 481; Gardner v. Deiderichs, 41 Ill. 158; Koester v. Burke, 81 Ill. 439; 2 Jones on Mortgages, sections 1939 and 169, and cases cited in notes.

3. Appellee can take nothing by the suggestion that in any event he was a joint owner or tenant in common with, appellant in the property, and that therefore appellant could not maintain replevin. In the first place, appellant alone, as mortgagee, was given the right of possession under the power in the mortgage; and appellee, a mere assignee of a part of the indebtedness secured by the mortgage, was given no legal right of possession either in severalty or jointly with appellant. The rights of appellee, as such assignee, were equitable rights and were in the proceeds to be derived from a sale of the property. In the second place, appellee was in the exclusive possession of the entire property, assuming and claiming exclusive and absolute ownership in severalty, by virtue of the pretended sale under the power, and denying and repudiating any property or possession, joint, or otherwise, in appellant, and insisting appellant had no right, title or interest whatsoever therein. Appellee should lie in the bed it selected, and should not Jflow both liot'and cold with the same breath.

The judgment of the court below was erroneous. It is reversed. The cause is remanded.

Reversed a/nd remanded.