text:
    Charles F. Gerard v. Erastus W. Bates.

      Filed at Springfield March 28, 1888.

      1. Pabtnebship—execution against individual partner—of the mode of satisfaction out of the partnership effects■ In the case of an execution against one partner, when satisfaction is sought out of partnership property, the proper mode is to levyupon and sell all the debtor partner’s interest in the whole of the partnership effects, and not on specific articles of the partnership property.
    2. Where the entire interest of a partner in the partnership assets is levied upon and sold, the purchaser at the sheriff’s sale, on a bill for an account, will be entitled to a decree for one-half of the proceeds of the entire partnership property; but when a partner’s interest in certain specific articles of personal property, only, is sold under execution, it will be error to decree to the purchaser the entire interest of the debtor partner.
    3. Pasties—on bill by execution purchaser of one partner’s interest, to se-ttle up pa/rtnership. Where certain specific articles of partnership property have been sold on execution against one partner, on bill by the purchaser to settle and adjust the partnership affairs, and for a sale of the partnership property and a distribution of the proceeds, the debtor partner whose property was sold is an indispensable party, in order to make the decree binding on all.
    4. Pbaotioe—omission of parties, in chancery—time and mode of objecting. It is the usual and better practice, where the want of proper parties is apparent on the face of the bill, to take advantage of it by demurrer or motion to dismiss, or if not patent, by plea or answer.

      5. Where the parties omitted are merely formal parties, and not indispensable to a decision of the case upon its merits, it will be too late to make the objection at the hearing; hut where the rights of the parties not before the court are intimately connected with the matter in dispute, so that a final decree can not be made without materially affecting their interests, the objection may he taken at the hearing, or on appeal or error.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Logan county; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Beach & Hodnett, for the appellant:
    Gerard was not estopped, as against Bates, to insist upon his contract with Danley, because Bates was not induced, by the statements of Gerard, to purchase the Harts judgments. Bigelow on Estoppel, 552; Powell v. Rogers, 105 Ill. 318; Dinet v. Eilert, 19 Bradw. 99; 6 Wait’s Actions and Defences, 685; Ball v. Hooten, 85 Ill. 161; Hefner v. Vandolah, 57 id. 520; Flower v. Elwood, 66 id. 447; Chandler v. White, 84 id. 435.
    All persons indispensable to a decision upon the merits must be made parties to the bill, and the objection may he taken at the hearing, or on appeal or on error. Prentice v. Kimball, 19 Ill. 323; Spear v. Campbell, 4 Scam. 426; Bank v. Sperling, 113 Ill. 273; Alexander v. Hoffman, 70 id. 114; Rosenstiel v. Gray, 112 id. 282.
    A purchaser at an execution sale of a partner’s interest in property of the firm, for the individual debt of partners, takes only the actual interest of the partner therein as he held it at the time of the levy and sale. Chandler v. Lincoln, 52 Ill. 74; Rainey v. Nance, 54 id. 29; Herman on Executions, sec. 358, p. 544; 1 Story’s Eq. Jur. sec. 677; Lewis v. Harrison, 81 Ind. 278; Tarbel v. Bradley, 7 Abb. 273; Thompson v. First, 15 Md. 24; Menagh v. Whitwell, 52 N. Y. 146; Buchan v. Sumner, 2 Barb. Ch. 165; Collyer on Partnership, sec. 825.
    The sale of the interest of a co-partner under execution against him, for an individual debt, does not transfer any part of the joint property to the vendee. It gives him only a right, in equity, to call for an account. 1 Story’s Eq. Jur. sec. 677; Barett v. McKinzie, 24 Minn. 20; Lothrop v. Wightman, 41 Pa. St. 297; Reinheimer v. Hemmingway, 35 id. 432; Wilson v. Strobach, 59 Ala. 488.
    It is not an interest in any particular piece of property, but in the firm assets, after the settlement, that is liable for a partner’s separate debt. Atwood v. Meredeth, 37 Miss. 635.
    Mr. E. Lynch, and Messrs. Bunn & Hoblett, for the appellee, contended that the objection for want of parties comes too late, and that as Danley was not complaining of the decree, the appellant could not assign for error a matter affecting Danley alone.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

On April 21, 1885, Charles F. Gerard and Isaac Wert were the owners of a livery stable stock and business in Lincoln, in this State, in partnership, doing business under the firm name of Wert & Co., Gerard’s interest being three-fourths and Wert’s one-fourth. On that day Gerard sold to one James H. Danley an undivided half interest in the livery stock of Wert & Co., for a half section of land in Nebraska, taken at the valuation of $3200, Danley guaranteeing that the actual cash value of the land would be, in eighteen months thereafter, $3200, and that if not of that value, he agreed to pay to Gerard the difference between such sum and the value then, out of said livery stock.. On the same date, and as a part of the same transaction, Gerard, Danley and Wert entered into a partnership to conduct said livery business, and did carry on the same for a while. On June 17, 1885, two executions against Danley, for $621.25 and costs, and $148.56 and costs, respectively, issued on judgments against him individually, in favor of one Harts, were levied upon the interest of Danley in certain enumerated articles of personal property of the partnership, in the livery stable. The property so levied upon was duly sold, and theappellee, Bates, who, in the meantime, had purchased the-judgments from Harts, became the purchaser at the sale, for $769.91. Bates, on August 21,1885, filed his bill of complaint herein, against Wert and Gerard, alleging that he became, by said purchase, the absolute owner of an undivided one-half interest in said property; that Wert and Gerard refused to recognize his ownership, and praying for an account and the-appointment of a receiver. The defendants, by their answer, deny that the complainant is the absolute owner of an undivided one-half interest in the property, set up the contract with Danley as to the land, and aver that Danley’s interest in the property could not be ascertained until eighteen months, after April 21, 1885, and that said time had not expired, A receiver was appointed, who made sale of the. property of the firm. The net amount of the assets of the firm was-, found to be $1780.71, which the decree of the court divided as follows: To complainant, Bates, $890.35, to the defendant Gerard, $445.18, and the same to the defendant Wert, No costs were adjudged against Bates, but they were ordered to be paid, three-fourths by Gerard, and one-fourth by Wert, It appeared from the evidence, that on the 1st day of October,. 1886, the Nebraska land was worth from four to five dollars per acre, and that Gerard was still the owner. The decree-was affirmed by the Appellate Court for the Third District,, and the defendant Gerard alone appeals to this court.

The decree is claimed to be erroneous in two particulars: One, in that the decree allows Bates a half of certain assets of the partnership that were not levied upon and sold under the executions; and the other, the disallowance of Gerard’s claim against Danley’s interest in the event that the value of the Nebraska land should not be $3200 at the expiration of - eighteen months from April 21, 1885. The Appellate Court disposed of this last objection, on the ground that Gerard, by the representations he had made to Bates before his purchase, as to the value of Danley’s interest, and the encouragement he had given him to buy the judgments, was estopped, as against Bates, to insist upon his contract with Danley. We do not find it necessary to consider this question, as we think there is error in the respect first above mentioned, which requires a reversal of the decree.

The decree seems to have proceeded upon the theory that the sale on the executions was of the interest of Danley in all the partnership property, whereas it was a sale of his interest in only a part of the property. The executions were levied on Danley’s interest in certain specific articles of the partnership property, particularly enumerating them. There were $279.45 of book accounts of the firm, and some hay, oats and other property of the firm, to the amount of $70, which were not levied upon and sold under the executions; and yet, by the decree, Bates is allowed to share in this property of the firm not levied on and sold, as assets of the partnership, giving to him, as his one-half thereof, $174.72, which he clearly was not entitled to. There was allowed to Bates, by the decree, the whole interest of Danley, which remained upon the" final adjustment of the partnership concerns. That’interest Bates did not acquire by his purchase under the executions. He might have acquired it had there been a proper and different levy and sale, viz., of Danley’s partnership interest, or of his interest in the whole of the partnership property. But it was here only a part of Danley’s partnership interest which was levied upon and sold,—his interest in certain specific articles of partnership property, which were only a part of the partnership property. That in such a case of an execution of a separate creditor against only one of several partners, the proper mode is to levy upon and sell the debtor partner’s interest in the whole of the partnership effects, and not in specific articles of the partnership property, see 1 Bindley on Partnership, 710; Parsons on Partnership, 352; Freeman -on Executions, secs. 125, 254; Sirrine v. Briggs, 31 Mich. 443.

But it is insisted that Gerard has got his full share, and there is no error which he can complain of,—that it is no cause of complaint to him that Bates receives more than he is entitled to. It is true that Gerard seems to get, hy the decree, his full one-fourth share; but does it not concern him that Bates, in this accounting, is allowed more than he is entitled to receive,—the whole of Danley’s interest, instead of the part of that interest which he bought ? Danley is not a party, and the accounting here will not be conclusive as to him. If the decree remains, Danley may file his bill and subject Gerard to another accounting, where Danley may be allowed for his unsold interest in the co-partnership. Gerard should be subjected to the liability of but one accounting, and Danley should have been made a party to this suit, so that ■there would be need for only one account to be taken,—the one taken here,—which would be final and conclusive between all the co-partners, and Bates.

As the objection of Danley not being made a party does not appear to have been taken before, but to be made in this court for the first time, it is insisted that it comes too late. In Prentice v. Kimball, 19 Ill. 323, it was said: “It is the usual and better practice, where the want of proper parties is apparent on the face of the bill, to take advantage of it by demurrer or motion to dismiss, or if not patent, by plea or answer. Where the parties omitted are mere formal parties, and not indispensable to a decision of the case upon its merits, it will be too late to make the objection at the hearing; but where the rights of the parties not before the court are intimately connected with the matter in dispute, so that a final decree can not be made without materially affecting their interests, as in this case, the objection may be taken at the hearing, or on appeal, or on error. Courts will, ex officio, take notice of such omission, and rule accordingly.” And see Spear v. Campbell, 4 Scam. 426.

We think Danley was a necessary party, and that the objection on that account does not come too late, although made-for the first time upon this appeal.

The judgment and decree of the courts below will be reversed, and the cause remanded to the circuit court of Logan county for further proceedings, with leave to the complainant-to amend the bill and make James H. Danley a party defendant.

Judgment reversed.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    The Village of Hyde Park v. The City of Chicago.

      Filed at Springfield March 26, 1888.

      1. Townships—detaching and annexing territory—under act of 188T amendatory of Township Organization law—constitutionality of that act. The act of June 15, 1887, entitled “An act to amend sections 2, 4, 6, 7, 10, 11 and 12, of article 3, of an act entiled ‘An act to revise the law in relation to township organization,’ approved and in force March 4,1874, ” being unconstitutional, as containing a subject not expressed in its title, it follows that any election had under its provisions for the detaching of territory from one town and annexing the same to another wholly within the limits, of a city, is void, and fails not only to extend the jurisdiction of such city, but also to detach the territory of one town and unite it to the other.
    2. An election under such amendatory law can not be held to have effected, a union of two contiguous towns without extending the limits of a city in which one was wholly situate, over the other town, and failing to do the-latter, the election is a nullity.
    3. Injunction—to prevent improper interference with corporate property. The.property of an incorporated village is in the nature of a trust fund, which the corporate authorities hold for the use of the public, and any unlawful interference with it, calculated to inflict irreparable injury upon the community, presents a clear case for equitable relief.

      Appeal from the Superior Court of Cook county; the Hon. Gwynn Gabnett, Judge, presiding.
    Mr. Melville W. Fuller, for the appellant:
    The property of the village is to be regarded and protected as if it were the property of an individual. 1 Dillon, (3d ed.) sec. 68. See as to city water works, Bailey v. Mayor, 3 Hill, 539; Gas Works v. Philadelphia, 11 Pa. St. 183. As to wharf property, Grogan v. San Francisco, 18 Cal. 590. As to city ferry rights, Benson v. Mayor, 10 Barb. 245; Mayor v. Stavin, 100 N. Y. 1.
    Considered as devoted to specified public uses, the village can not divert it nor permit such diversion. For the city to take absolute possession of this property, to which it has no right, is to.unlawfully inflict a permanent and continuing injury upon the village.
    Injunction, under such circumstances, is the proper and only adequate relief, and a bill for an injunction an approved mode of testing the validity of an alleged law relied on to justify such usurpation. City of Peoria v. Johnston, 56 Ill. 52; Smith v. Bangs, 15 id. 399; People v. Whitcomb, 55 id. 172; McCord v. Pike, 121 id. 288.
    The act is void, as being in contravention of section 13, article 4, of the constitution, as embracing more than one subject. When an act embraces more than one subject, yet the title is broad enough to cover all, the whole act is void. See Cooley’s Const. Lim. sec. 148; State v. Barrett, 27 Kan. 213.
    As to the subject, title and provisions germane to the general object, see Cooley’s Const. Lim. sec. 141, note; Fuller v. People, 92 Ill. 185; Potwin v. Johnson, 108 id. 78; Lockport v. Gaylord, 61 id. 279; Middleport v. Insurance Co. 82 id. 565; Scheler v. Detroit, 45 Mich. 626; Payne v. Mahone, 41 N. J. L. 292; McGee v. State, 2 Lea, 622; Murphy v. State, 8 id. 373; State v. Young, 47 Ind. 150; Board v. Baker, 80 id. 374; People v. Wright, 70 Ill. 388.

      Mr. Sidney Smith, also for the .appellant:
    The act is in violation of section 13, article 4, of the constitution. O’Leary v. Cook County, 28 Ill. 534; People v. Mellen, 32 id. 181; People v. Protestant Deaconesses, 71 id. 229; Railway Co. v. Lake View, 105 id. 207.
    But these proceedings are nugatory, because the provisions of the law itself have not been complied with. In determining the powers of the county board in this regard, this statute should be strictly construed against the power claimed. In ease of reasonable doubt it should be construed against the power. Dillon on Mun. Corp. sec. 55, and cases cited in note; Mather v. City of Ottawa, 114 Ill. 659.
    This board must strictly pursue the methods prescribed by this statute. It can exercise the powers expressly granted, only in the manner prescribed by the statute. There can be no dealing in equivalents. Fitch v. Pinckard, 4 Scam. 69; Hardin v. McFarlan, 82 Ill. 138; People v. Village of Crotty, 93 id. 180.
    Mr. James P. Boot, also for the appellant:
    The act is void because it embraces more subjects than are expressed in the title. Potwin v. Johnson, 108 Ilol. 77; O’Leary v. Cook County, 28 id. 534; Neifing v. Pontiac, 56 id. 172; Guild v. Chicago, 82 id. 474; Railroad Co. v. Gregory, 15 id. 20; People v. Wright, 70 id. 388.
    Mr. Henry V. Freeman, also for the appellant:
    The act embraces more than one subject. Martin v. People, 87 Ill. 525; Town of Woo-Sung v. People, 102 id. 654.
    The subject in question is not expressed in the title. Cutlip v. Calhoun County, 8 W. Va. 590; Middleport v. Life Ins. Co. 82 id. 562; Welch v. Post, 99 id. 471.
    Mr. John W. Green, Mr. Clarence A. Knight, and Mr. Daniel L. Shorey, for the appellee:
    A court of chancery has no jurisdiction to inquire into the validity of an election. People v. Hilliard, 31 Ill. 425; People
      v. Galesburg, 48 id. 418; Dickey v. Reed, 78 id. 261; Jennings v. Joyce, 116 id. 179.
    According to the repeated decisions of this court, the power to hold an election is political, and not jurisdictional. Hence a court of equity has no power to restrain officers from the exercise- of such powers. Walton v. Develing, 61 Ill. 201; Darst v. People, 62 id. 306; Dickey v. Reed, 78 id. 261.
    A court of equity has no power to try a contested election, even when the statute has not provided a mode for contesting. Moore v. Hoisington, 31 Ill. 245.
    The county court has been delegated, by legislative enactment, with the authority to order the election and canvass the votes and declare the result. The legislature has the power. Galesburg v. Hawkinson, 75 Ill. 152.
    As to legislative power to change boundaries of cities, counties and towns, and dispose of their property and revenues, see Dillon on Mun. Corp. sec. 185; St. Louis v. Russell, 9 Mo. 503; Terrill v. Taylor, 9 Cranch, 52; St. Louis v. Allen, 13 Mo. 414; Smith v. McCarthy, 56 Pa. St. 362; Powers v. Wood, 8 Ohio St. 288; Chandler v. Boston, 112 Mass. 204; Wade v. City of Richmond, 18 Gratt. 583; Giboney v. Cape Girardeau, 58 Mo. 151; Morgan v. Beloit, 7 Wall. 613; New Orleans v. Clark, 5 Otto, 644; Broughton v. Pensacola, 93 U. S. 266; People v. Burr, 13 Cal. 342; Gifford v. Supervisors, 18 Barb. 618; 13 N. Y. 143; Laramie County v. Albany County, 2 Otto, 307; Richland County v. Lawrence County, 12 Ill. 000.
    That the act is not unconstitutional, see Potwin v. Johnson, 108 Ill. 70; Blake v. People, 109 id. 509; People v. Hazelwood, 116 id. 319; Hawthorne v. People, 109 id. 307.
    The objection was raised, as to the title of the act, that the statute, so far as it undertakes to authorize municipalities to subscribe to the capital stock of the corporation, is unconstitutional, because it embraces two distinct subjects, one the incorporation of the railroad, and the other, an enlargement •of the corporate powers of municipal corporations, the first of which, alone, is expressed in the title.
    The court say the question is fully disposed of in the case •of Supervisors of Schuyler County v. Rock Island and Alton Railroad Co. 25 Ill. 181. In this case the Supreme Court cite the -cases of O’Leary v. County of Cook, 28 Ill. 534; Railroad Co. v. Gregory, 15 id. 29; Benevolent Association v. Lounsbury, 21 id. 511; Neifing v. Toivn of Pontiac, 56 id. 172; People v. Wright, 70 id. 388; People v. Brislin, 80 id. 423; Guild v. Chicago, 82 id. 472; Fuller v. People, 92 id. 182; Jonesboro City v. Railroad Co. 110 U. S. 192.
   Per Curiam :

Stated in general terms, this was a bill filed hy the village of Hyde Park, in the Superior Court of Cook ■county, against the city of Chicago and others, to restrain the •city from interfering with the property and effects of the village, and from attempting to exercise municipal jurisdiction -within the territorial boundaries of the latter, and for other ■purposes. The Superior Court, upon the hearing, entered a •decree dismissing the bill for want of equity. The complainant appealed to this court.

The decree, for the reasons stated in the case of Dolese ,et al. v. Pierce, ante, p. 140, will have to be reversed. Both cases, in the main, depend upon the same question,—namely, the constitutionality of certain provisions of the amendatory act of 1887, relating to township organization. (Laws 1887, ■p. 300.) For a full expression of our views on this question, reference is made to the other ease.

There is a question in this case that does not arise in the ■other. Appellees insist, that conceding the facts to be as claimed by appellant, the case is not one of equitable cognizance, and that the decree should be affirmed on this ground. We think otherwise. The property of the village is in the nature of a trust fund. It holds it for the use of the public, .and any unlawful interference with it, calculated, as this would be, to inflict upon the community an irreparable injury in respect to it, presents a clear case for equitable relief. City of Peoria v. Johnston, 56 Ill. 52; Smith v. Bangs, 15 id. 399; People v. Whitcomb, 55 id. 172; McCord v. Pike et al. 121 id. 288.

It follows from the views expressed in the Dolese case, that, by the election referred to in the pleadings, none of the proposed territory in the town of Hyde Park became annexed to the town of South Chicago. We are of the opinion, that any election heretofore held under the 12th section of the amendatory act of 1887 would not only fail to extend the limits of a city so as to embrace all or a portion of an adjoining town proposed to be united to a town wholly within the limits of such city, but would also fail to unite such contiguous town or any portion thereof to the town so embraced within the city limits. In this case, the part of the town of Hyde Park, which it was attempted to annex to the town of South Chicago, was not so annexed by virtue of the election held in November, 1887.

The 12th section of the amendatory act of 1887 provides, that “where one of such towns is wholly within the limits of an incorporated city, the limits of that city shall extend to include both or all such towns.” Any vote, taken, before the declaration by this court of the unconstitutionality of the provision here quoted, for the annexation, under the act of 1887, of a town or part of a town to another town lying wholly within the limits of an incorporated city, must be presumed to have been taken with reference to the provision so declared to be unconstitutional. In other words, such election will be presumed to have been had with the purpose in view of extending the limits of the city over the territory annexed to the town wholly within the boundaries of such city. Hence, under the decision in the Dolese case such election would be void for all purposes. It can not be held to have effected a union of the towns without extending the limits of the city over both of the towns. It can not be held to have effected a union of part of a contiguous town to the town wholly within the city limits without extending such limits over the whole of the annexed territory.

While the obnoxious provision was a part of the act and before its constitutionality was passed upon, the people voting under the act to annex part of a town to a town wholly within the limits of a city must have intended to vote for such annexation with a view of having the limits of the city extended over the annexed territory. The question of annexing two-towns to each other or part of one town to another town without reference to the extension of the limits of the city could not have been presented to their suffrages. The people can not be declared to have voted for what they did not intend to-vote on, and can not be held to have voted upon a question, which was not in their minds at the time of the election.

In this case, the people did not vote upon the simple question of uniting a part of the town of Hyde Park to the town of South Chicago. Therefore, their vote did not have the effect of uniting a part of the town of Hyde Park to the town of South Chicago. They voted upon the question of uniting the village of Hyde Park to the city of Chicago. This abundantly appears from the pleadings, from the evidence, from the arguments of counsel, from the language of the petition. for the election, from the proceedings of the village trustees and of the board of county commissioners of Cook county.

The 12th section of the amendatory act of 1887 provides for the union of one town to another or of part of one town to-another; it nowhere provides for uniting a village or a part of a village to a town. The petition to be presented to the county board is designated in the 12th section as a petition for the union of towns, not of villages or cities—as a petition for disconnecting territory from one town, not from one village, and annexing the same to another town, not to a village or a city. And yet in the case at bar, the petitioners describe themselves as residents of the “town or village of Hyde Park ” they pray that the specified territory be disconnected “from the town or village of Hyde Park and annexed to the town of South Chicago.” The proceedings had by the board of commissioners of Cook county on October 3, 1887, speak of receiving a petition for disconnecting a portion of the “town or village of Hyde Park” and annexing it to the town of South Chicago, and the county clerk is directed to submit to the voters of the “town or village of Hyde Park” the question of the annexation to South Chicago of a part of the “town or village of Hyde Park.” When the voters are thus called on to vote for the annexation of part of a town or part of a village, the question being submitted in an alternative form, and they vote for annexation and against annexation, how can the canvassing board say that they voted to annex the town rather than the village ?

At a meeting of the trustees of the village of Hyde Park held on December 19, 1887, it was resolved that certain persons be “appointed a committee with power to act in the adjustment of any matter growing out of the proceedings for annexation between the village of Hyde Park and the city of Chicago.”

From all this and much more in the record that might be referred to, it is evident that the election was held under the provision, which we have declared to be unconstitutional, and with a view of effectuating the objects of that provision. Hence the election wras void. The voice of the people is all-powerful when expressed in pursuance of laws that are passed in obedience to the constitution. But until the people vote to amend or change the constitution in the mode which they themselves have designated, they as well as their officials are bound to obey its mandates.

The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.

Mr. Justice Scott, dissenting.


author: Mr. Justice Scott

text:
    George B. Anderson v. Franklin Henderson.

      Filed at Springfield March 28, 1888.

    1. Surface waters—dominant and servient heritage. The owner of a ■higher tract of land has the right to have the surface water falling or coming naturally upon his premises by rains or melting snow, pass off the same, Íthrough the natural drains, upon or over the lower or servient lands next idjoining, and the owner of the dominant heritage has, and ought to have, he right, by ditches and drains, to drain his own land into the natural and usual channels which nature has provided, even if the quantity of water in that way thrown upon the next adjoining lower lands be thereby increased.
    2. While the owner of lower lands shall receive all water that naturally flows from the next higher lands, the owner of the higher lands may not open or remove natural barriers, and let on such lower lands water that would not otherwise naturally flow in that direction.
    3. Chancery—exceptions to master’s report—how to be disposed of. A defendant in chancery can not assign for error the neglect of the court to dispose of the complainant’s exceptions to the master’s report. But a decree in favor of the complainant on the points covered by his exceptions to the master’s report, is in effect sustaining the exceptions, and the omission to make a formal order sustaining the same is not such error as to call for a reversal.
    4. Same—affirmative relief to defendant. Affirmative relief can not be granted to a defendant upon answer. That can only be granted on cross-bill.
    5. Same—decree—finding facts as to matters not in issue. It is improper for the court, in its decree, to find the facts in relation to a matter not made an issue by the pleadings.
    Writ of Error to the Circuit Court of McLean county; the Son. Owen T. Beeves, Judge, presiding.
    Mr. W. B. Oarlock, for the plaintiff in error:
    The common law, as well as the civil law, principles of -drainage would allow the plaintiff in error to make ditches anywhere on his land, through natural depressions, in order 4o render the. same dry and tillable, even though the flow of water is increased on the lower proprietor. Laney v. Jasper,. 39 Ill. 46; Gormley v. Sanford, 52 id. 158; Ogburn v. Connor,. 46 Cal. 347; Kauffman v. Griesemer, 26 Pa. St. 415; Gannon v. Hoigdon, 10 Allen, 106; Waffle v. Railroad Co. 58 Barb 413; Peck v. Herrington, 109 Ill. 611; Cooley on Torts, 575-577; Angell on Water-courses, (6th ed.) secs. 108 a, 108 s.
    The owners of lands may construct drains for agricultural purposes, only, into any natural water-course, or any natural depression whereby the water will be carried into any natural water-course. Laws of 1883, p. 78, sec. 1.
    That the owner of the dominant estate has an unqualified right to drain off his land all surface waters, for agricultural purposes, see Rowston v. Taylor, 11 Exch. 269; Martin v. Jett, 12 La. 656; Sess. Laws of 1883, p. 78.
    The rule' of the common law in regard to the servient and dominant heritage never has prevailed in Illinois, but, upon, the contrary, the more liberal rule of the civil law in respect thereto has been in force. Hoyt v. City of Hudson, 27 Wis. 659.
    The court erred in not decreeing that the embankment in a, hedge was an obstruction, and should be removed, or several, large and ample water-ways opened through the same.
    That a person can not, by an embankment or other artificial means, obstruct the water in its natural flow, and thus throw it back upon the upper proprietor, see Gillham v. Railroad Co. 49 Ill. 484; Nevins v. City of Peoria, 41 id. 502; Gormley v. Sanford, 52 id. 158; Bowman v. City of New Orleans, 27 La. Ann. 501; Ogburn v. Connor, 46 Cal. 347; Martin v. Riddle, 26 Pa. St. 415.
    Mr. Frank B. Henderson, for the defendant in error:
    None of the findings of the court have been excepted to, and the plaintiff in error is now barred from doing so. Jewell v. Paper Co. 101 Ill. 65; Prince v. Cutler, 69 id. 267; Clark v. Laughlin, 62 id. 278; Pennell v. Insurance Co. 73 id. 303.

      In a chancery case, it is presumed that the finding of the facts by the court was warranted, unless the testimony shows to the contrary;, and a reviewing court will not disturb the same, even where it has a well founded doubt as to how the question should have been decided. Groenendyke v. Coffeen, 109 Ill. 326; McCormick v. Miller, 102 id. 208; Long v. Fox, 100 id. 43; Richards v. People, id. 424; Coari v. Olsen, 91 id. 273; Hughes v. Frisby, 81 id. 188.
    The right of the owner of the superior heritage to drainage' is based-simply on the principle that nature has ordained such drainage. It is but plain and natural justice that the individual ownership, arising from social laws, should be held in accordance with pre-existing laws and arrangements of nature. As water must flow, and some rule in regard to it must be established where land is held under the artificial titles created by human law, there can clearly be no other rule, at once so equitable and so easy of application, as that which enforces natural laws. Gormley v. Sanford, 52 Ill. 158; Miller v. Pilgrim, 7 Bradw. 306; Hicks v. Silliman, 93 Ill. 255; Evans v. Merriweather, 3 Scam. 492.
    Surface water can not be changed by artificial means, and if, by such means, the flow is changed, an injunction will be given. Railroad Co. v. Morrison, 71 Ill. 616; Railroad Co. v. Cox, 91 id. 500; Nevins v. City of Peoria, 41 id. 502; Miller v. Pilgrim, 3 Bradw. 476; Addison on Torts, 59, 82; Johnson v. Rea, 12 Bradw. 335.
    Neither party has a right, with respect to water or drainage, to so use, improve or change his land from a state of nature as to materially injure the other. Herrington v. Peck, 11 Bradw. 62. See, also, Templeton v. Vasloe, 72 Ind. 134; Dickerson v. City of Worcester, 7 Allen, 19; Butler v. Peck, 16 Ohio St. 334; Martin v. Riddle, 26 Pa. St. 416; Miller v. Lawback, 47 id. 154; Kaufman v. Griesemer, 26 id. 407; Livingston v. McDonald, 21 Iowa, 160; Pettigrew v. Evansville, 25 Wis. 223;
      Waffle v. Railroad Co. 58 Barb. 413; Lattimore v. Davis, 14 La. 161.
    Henderson was under no obligation to keep the ditch open which he had dug to place his tile in, or maintain a ditch for Anderson’s benefit. The owner of land need not keep ditches open for the benefit of others, but may fill them up, at any time, level with the natural surface. Gormley v. Sanford, 52 Ill. 158; Kulmer v. Griesbaum, 59 id. 50.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case is for an injunction, and was brought in the circuit court of McLean county by Franklin Henderson, •against George B. Anderson. It appears from the allegations of the bill, complainant owns a farm in section 6, in Towanda township, and that defendant is a life tenant, and is in possession of a farm immediately west of the one owned by complainant,—both farms consisting of a quarter section, as the same were originally surveyed by the government. The facts relied upon for relief are stated with the usual fullness, but it will only be necessary to an understanding of the decision to be rendered, to state the principal allegations of the bill.

It is alleged, that on the land of defendant there are many large ponds and sloughs, where large quantities of water collect, and that the natural and usual outlet to such ponds and sloughs is not over and across the land of complainant, but that such outlet is to the west and south-west of defendant’s land. It is also shown, that prior to committing the alleged injuries for which relief is now sought, defendant dug and •constructed a large ditch on his land, whereby large quantities ■of water were diverted from their natural course onto and across the land of complainant, which occasioned great damage to him; that he brought his suit at law to recover such damage from defendant; and that afterwards- defendant confessed nominal damages in favor of complainant in the suit at law, and agreed to, and did, fill up such ditch level with the natural surface of the land. The point where the ditch was filled up is stated to be five hundred and ninety-six feet west of the half section line between the lands of the respective parties, and seven hundred and twenty feet north of the southwest corner of complainant’s land. Another ground of relief alleged is, that at the point where the ditch was so filled up there is an elevation of land that is naturally the dividing line between the waters that should flow east, towards complainant’s " land, and the water naturally flowing westward from him, and that at the time the ditch was filled up, defendant agreed,- and it was decided by mutual friends of the parties, to whom the matter was referred for determination, that such ridge or elevation of land was the natural dividing line between the waters that should flow towards complainant and those that should not flow towards him, and that then and there defendant pledged himself that such ridge should always be the dividing line, and that the surface of the same should not at any time be changed so as to divert water across or through such ridge onto complainant’s land, and in consideration of which complainant agreed to receive nominal damages, and to pay the costs in the common law suit. The grievance now complained of, and against which relief is sought in the present suit, is, that defendant has, many times since the other transaction occurred, threatened to re-open such ditch and wrongfully to divert large quantities of water from the ponds and sloughs on defendant’s land out of its natural course, on and over lands of complainant, and this bill was brought to restrain the doing of these acts alleged to be wrongful, and to be an irreparable damage to complainant’s land, and for the doing of which it is said no adequate remedy exists at law.

The answer of defendant is full and direct, and either admits or denies all material allegations of the bill. In regard to the most material charges in the bill, defendant denies that there is an elevation at the point where the ditch was filled up, amounting to a dividing line between the waters that should flow east, towards complainant’s land, and the waters that would naturally flow west from him. He also denies it was agreed by defendant, and decided by mutual friends chosen by the parties to this suit, that the ridge or elevation referred to in the bill, or any other ridge or elevation or place, was the dividing line between the waters that should flow towards complainant’s land and those that should not flow towards him; and he also denies that he pledged himself that any ridge should always be the dividing line, and the surface should not at any time be changed so as to divert the waters across complainant’s land, and avers the agreement complainant alleges and insists upon, would come within the Statute of “Frauds and Perjuries,” and that he would not be bound by it. Defendant admits he always claimed the right to drain his land and direct the water in its natural and usual outlet, which, it is alleged, is over and across the land of complainant. Other matters are set forth in the answer, but in the view that will be taken of the case it will not be necessary to state them.

The usual replication was filed, and the cause referred to the master in chancery to take testimony, with directions to report the same, with his findings, which he did. On the coming in of the master’s report, both parties filed exceptions, which will be noticed further on. In addition to the evidence reported by the master, other testimony was heard in open court, which has been preserved in the record. The court, by its decree, found generally that all the allegations of the bill, material to the relief sought, are true, and that complainant is entitled to equitable relief, and as to the pivotal fact in tins case, on which the decision turns, the court found that on defendant’s land there is a rise or divide, more or less marked, that runs north arid south at about the distance of five hundred and ninety-six feet from the half section line between the lands of complainant and defendant, and that by the digging of the east and west ditch by defendant, the water that gath- • erecl west of the divide was, to a considerable extent, diverted from its natural course, and that the natural outlet of all the water gathered upon the land of defendant west of such divide, is to the south and west, and not easterly. So far as other facts found by the decree may be thought to be material, they will be stated in the brief discussion that is to follow, otherwise no mention need be made of them.

It is obvious from this statement of the pleadings and the findings of the court, the questions involved are purely questions of fact, and as to which it must be conceded, in the outset, the evidence is quite conflicting. The law which counsel for defendant insists is applicable and should control, is so well understood it need not be discussed. It is, that the owner of a higher tract of land has the right to have the surface water falling or coming naturally upon his premises by rains or melting snow, pass off the same through the natural drains upon or over the lower or servient lands next adjoining, and the owner of the dominant heritage has, and ought to have, the right, by ditches and drains, to drain his own land into the natural and usual channels which nature has provided, even if the quantity of water in that way thrown upon the next adjoining lower lands be thereby increased. The rule in this respect is a just one, and is indispensable to secure proper drainage, in many instances necessary to render land tillable. While the owner of lower lands shall receive all water that naturally flows from the next, higher lands, the owner of the higher lands may not open or remove natural barriers, and let onto such lower lands water that would not otherwise naturally flow in that direction. That would be to subject the servient heritage to an unreasonable burden, which the law will not qDerm.it, and against which the owner ought reasonably to have qDrotection. The princiqDles of law that govern in such cases are in harmony with good neighborship, and ought to be readily acquiesced in. But it is seen, the difficulty does not lie in .ascertaining the law, but in ascertaining the facts to which ■ the law, as stated, would be applicable. In entering upon the consideration of the evidence, much difficulty is at once experienced, on account of the conflicting character of the testimony. So far as this court can know, the witnesses on either side are of equal respectability. The testimony found in the record is too voluminous to admit of any analysis of each particular witness’ testimony. All that is practicable, without extending this opinion to a length that would be unreasonable, will be to state the conclusions reached, after subjecting the entire record to a close study. Anything more would be a useless and profitless work when done.

Undoubtedly, the land in the vicinity of the premises where the parties reside, is nearly or quite level. That fact appears clearly from the testimony of the surveyors, who state the levels taken by them. On the lands of defendant there are basins and sloughs, in which quite considerable bodies of water accumulate. Although these lands are quite level on the surface, still they are high lands as compared with other lands in the same vicinity. Waters flowing from these lands pass off through the slight depressions or sloughs that exist, and uniting, as they do, constitute the sources of little streams, that gradually reach the proportions of what are called “creeks,” and which receive names by which they are commonly known. It is a matter of common observation, and needs no proof to establish the fact, that ponds situated on uplands, as they are frequently discovered to exist, are surrounded by what may properly be called a rim, with a slight depression at some point, over which the water escapes when more flows in from the higher lands than the basin will naturally contain. That is its natural outlet. So many witnesses testify in this ease to the existence of a “divide,” or “elevation of land,” at a point about six hundred feet west of the line between the lands of complainant and defendant, it seems impossible to resist the conclusion, the decree finding that such “divide” or “elevation” does exist is warranted by the evidence. If that fact shall be ' conceded to be well found, as must be done, then it is sufficiently proved the natural outlet of most, if not all, the water that may accumulate west of such “divide” would be south and. west, as the court found it to be, and not easterly. The witnesses that have known the premises longest, seem to speak most confidently as to the existence of what they call the-“divide,” and as to the natural outlet of the water that accumulates west of it, on defendant’s land. They all say its. natural course is to the south or south-west, through natural depressions or sloughs, until it reaches the channel of the-“Six-mile” creek, and thence to the Mackinaw. East of what is alleged to be the “divide,” the witnesses say the waters that fall upon defendant’s land pass to the east or south-easterly, through natural outlets, over complainant’s land, and from thence, perhaps, to Money creek. There is no doubt but that at seasons of the year when the water is unusually high in the . ponds or sloughs on defendant’s land, caused by unusual rain falls or sudden melting of large bodies of snow, and the wind prevails from the south or south-west, the waters flow over the alleged “divide” to the east, and escape in that direction. That seems to be the exception, and not the general rule. This fact may serve to explain, in some degree at least, what appears to he contradictory testimony. Witnesses that saw the water at such seasons, could, with the utmost candor, say-it flows both ways from the point in controversy,—that is, when the basins become unusually full there would be more than one outlet. That very fact seems to confirm complainant’s, theory of the case. How could the waters flow both ways at the point in controversy,—that is, that which falls east of the supposed “divide” would go to the east, and that which accumulates to the west going to the south-west,—unless there was some elevation of the land to cause the water to divide at that point ? Philosophically, it is certain the waters would flow in the same direction unless there was an elevation or obstruction to cause the same to divide and go part in one direction and part in another. While the test made by the neighbors who ■offered then’ friendly offices to settle the controversy is by no means conclusive, it is persuasive of the correctness of complainant’s position. The suggestion was adopted, that the ditch dug by defendant through what complainant insists was -the “divide,” should be filled up even with the original surface, .and they agreed the effect should be observed the next day. When they returned the next day, it was seen the water did not flow to the east, over the dam, but passed off to the south■west. There is evidence tending to show, when that fact was .ascertained, defendant agreed to allow the ditch to remain closed, in consideration of which complainant agreed to dismiss the common law suit to recover damages, at his own •costs. But be that as it may, the evidence, aside from the alleged agreement, is sufficient to support the decree of the circuit court,—at least this court can not say it is so much against the weight of the evidence, it ought, for that reason .alone, to be reversed. The trial court had some advantages for ascertaining the facts, not possessed by this court, and, on the whole record considered, its decree should stand.

There can be no doubt that all the water that naturally falls •on defendant’s land east of the alleged “divide,” would flow east or south-east over complainant’s land, and defendant •confidently insists the court erred in not decreeing that complainant’s embankment on the line of hedge is unnecessarily .high, and a serious damage to defendant, and that the same should be removed. That would be affirmative relief, which ■could only be granted on a cross-bill, and none was filed. It will be observed the question whether the embankment on "which the hedge is planted is too high, or whether sufficient spaces were left open to permit the flow of water from defendant’s land east of the dividing ridge that would naturally flow that way, is not made either by the original or any cross-bill, and is not, therefore, made a matter in issue between the parties, by their pleadings in the case. It was therefore unnecessary, and indeed improper, for the court to find, as it did, that complainant cut holes through the embankment thrown up, upon which the hedge was planted, “for water ways for the escape of such water as might fall east of what is claimed as the dividing ridge, and which were sufficient for that purpose.” As has been seen, that was not made an issue by the pleadings, and the court should have made no finding in regard to that question. To the end neither party may be embarrassed in any controversy that might hereafter arise in regard to the flow of water in that direction from defendant’s land east of what is claimed as the dividing ridge, so much of the decree as finds the holes cut for water ways through the hedge embankment “were sufficient for that purpose,” will he so modified in this court as to leave that an open question between the parties.

The court overruled the exceptions taken by defendant to the master’s report, but it is claimed no disposition was made of the exceptions taken by complainant to the master’s report, and that is said to be error. The technical error in that respect, if any exists, does not affect defendant in any way whatever, and he can not therefore assign it for error. But be that as it may, the fact the court decreed in favor of complainant on most, if not all,- the points covered by his exceptions to the master’s report, is in effect sustaining the exceptions, and the omission to make any formal order sustaining the same is not error for which the decree could be reversed.

With the modification of the decree as suggested, the judgment of the Appellate Court will be affirmed, at the costs of plaintiff in error.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Frank P. Drennan v. Thomas J. Bunn.

      Filed at Springfield March 28, 1888.

    1. Assignment—“without recourse”—liability of the indorser. An indorser of a note, although without recourse,” will be liable to the indorsee or holder, on the implied warranty that the note is a valid obligation for the amount expressed upon its face. If the note is usurious, and the maker successfully interposes the defence of usury, and defeats the collection of the interest reserved in the note, the indorser will be liable over to the in- . dorsee or holder for the deficiency thereby occasioned.
    2. Action—for money had and received—to recover bach money paid on the fraudulent delivery of goods sold. Where money is paid by one party to another for a given article assumed to be sold, but the seller delivers to the purchaser only a worthless imitation of that article, there is a legal fraud, and an action for money had and received will lie for the money thus paid for which nothing has been received.
    3. Same— on failure of consideration—as, in case of a refusal to deliver a part of the goods purchased and paid for. If a buyer has paid for a certain quantity of goods, and the vendor has delivered only a part, and makes default in delivering the remainder, the buyer may rescind the contract for the deficiency, and recover the price paid for the quantity deficient. This is in its nature a total failure of consideration for the part of the price paid, as contradistinguished from cases of a partial failure of the whole.
    4. Same-—on the purchase of securities which are liable to defences— of a recovery over. The sale of a chose in action by the payee, expressed to be for a given amount, but in fact subject to be reduced to a sum materially less by the defence of usury, to a party having no previous notice of the usury, and without informing him of the defence, is such a legal fraud as will subject the vendor, even though he may have indorsed without recourse, to an action by the vendee for the sum lost by the defence of usury. The same rule would apply when the maker has a defence of payment or set-off.
    5. Indemnity—implied warranty -—•relation between the parties— notice to party indemnifying to protect the subject matter qf the indemnity. Where one person is liable to indemnify another against a particular loss, it is because, by law or by contract, the primary liability for such loss is upon the party indemnifying; and in such instances the party bound to indemnify is in privity with the party to be indemnified.

      6. Where a person is responsible over to another, either by operation of law or by express contract, and he is notified of the pendency of a suit involving the subject matter of the indemnity, and requested to defend the same, he can no longer be regarded as a stranger to the suit, and any judgment, without fraud, against the party to be indemnified, will be conclusive against the party so notified, whether he has appeared or not. But it is not essential to his liablity, that in addition to notice of the pendency of the litigation he be requested to take charge of the suit, and notified that if he should fail he will be held responsible.
    7. The holder of notes secured by mortgage, sold and indorsed the same, after maturity, without recourse, and the purchaser filed a bill to foreclose, which the defendant answered, setting up usury in the notes. The assignee notified the indorser of such defence, and took his evidence in the case. On the hearing, the defence of usury was sustained, and the payments of interest being equal to the face of the notes, the bill was dismissed. The assignee then sued the assignor on his implied warranty that there was due on the notes what appeared to be due on their face: Held, that the assignor, having notice of the bill to foreclose, was concluded by the decree in that case as to the fact of usury, and that there was nothing due on the notes.
    Appeal from the Appellate Court for the Third District;—. heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    B. C. Huskey, and Eva J. Huskey, his wife, made and delivered to Thomas J. Bunn two promissory notes, one for the sum of $1000, and the other for the sum of $800, each dated April 15, 1874, and payable April 15, 1880, and also twelve coupons, annexed to each note, for interest on the amounts of the respective notes, at ten per cent per annum, j>ayable semiannually; and at the same time they executed and delivered to him a deed of trust to James H. Powell, as trustee, to secure the payment of the notes and coupons, on certain lands of which Eva J. was the owner, in Christian county. Eva J. died some time after the making and execution of these instruments. All of the coupons except the last, due upon each note, were paid as they inatured, but those coupons not having been paid, the trustee, being ignorant of the death of Eva J., advertised the property for sale, pursuant to the power in the deed. Frank P. Drennan, seeing this advertisement, wrote to Thomas J. Bunn, informing him of the death of Eva J., and proposing to buy the notes, etc., by paying the amount due. Bunn accepted his proposition, with the modification that he should pay the printer’s costs of advertising, and sent him a statement of the amount due, thus:
    “Two bonds,.........$1800
    Int. to Ap’l 15, 1880 ....... 150
    $1950”
    Drennan paid the printer’s costs for advertising, and paid Bunn $1950, and Bunn indorsed the notes thus:
    . “For value, received, I hereby assign the within bond and coupon to Frank P. Drennan, without recourse on me.

      August 12, 1880. Thomas J. Bunn.”
    —And then delivered them to Drennan. Soon afterwards Drennan commenced an action of ejectment on the trust deed, in the name of the trustee, to recover possession of the land, and also filed a bill to foreclose the trust deed, in the circuit court of Christian county. The defence of usury was interposed in both suits, and in the ejectment suit a tender was made of a balance admitted to be due after the deduction of all interest that had been paid, being $671. Drennan accepted the tender and dismissed the ejectment suit. The foreclosure suit, however, was not dismissed, but was prosecuted to final decree, some time after the ejectment suit was dismissed.
    The court found that the notes or bonds were usurious, and that all interest was thereby forfeited, and that, after deducting all interest that had been paid, the complainant had been paid all that was due upon the bonds. Drennan then brought the present suit against Bunn, in the circuit court of McLean county, to recover the difference between the amount he actually received upon the bonds or notes, and the amount apparently due thereon when he purchased. The cause was tried before the court, without the intervention of a jury, by agreement of parties, and judgment was rendered for the defendant. Evidence was given upon the trial, of the facts.hereinbefore stated, and there was also evidence proving that the defendant had actual notice of the pendency of the foreclosure suit in the Christian circuit court, of the defence of usury thereto that was interposed by Huskey; that he was requested to furnish evidence to meet the defence of usury; that his deposition was taken, as a witness in the ease, in reference to that question, and that he had notice of when the terms of the circuit court were held in Christian county. Evidence was also given tending to show that Drennan notified Bunn that he thought he would be defeated in the foreclosure suit, and that if he should be, he expected to sue Bunn upon a breach of implied warranty, to recover back what he had lost, and, in substance, that he therefore desired Bunn to take charge of the suit; but this was denied by Bunn in his testimony.
    The circuit court was requested to hold as follows, but held only the eighth and ninth, and refused the others:
    “1. That the final decree of the circuit court of Christian county, in the case of Frank P. Drennan v. R. C. Huskey et al., introduced in evidence in this case, is conclusive as to defendants in this cause, and fully establishes plaintiff’s right to recover in this ease.
    “2. That the final decree of the circuit court of Christian county, in the case of Frank P. Drennan v. R. 0. Huskey et al., introduced in this case, establishes the question of usury in this-cause, and is binding on defendant in this cause, and that it is not necessary to again prove the question of usury in this cause.
    “3. That.the final decree of the circuit court of Christian county, in the case of Frank P. Drennan v. R. G. Huskey et al., introduced in evidence in this cause, together with the further-proof that defendant, Bunn, in this cause, had notice of the pendency of said suit, and was requested to defend and disprove the defence of usury interposed in said cause, rendered said decree binding, and fully establishes the plaintiff’s right to recover in this cause.

      “4. That the final decree of the circuit court of Christian county, in the case of Frank P. Premian v. R. C. Huskey et al.r in evidence in this cause, together-with the further proof that said Bunn had notice of the pendency of said suit, and was requested to disprove and defend the defence of usury interposed in said cause, rendered said decree binding and conclusive against the defendant in this cause, and fully establishes the plaintiff’s right to recover in this cause.
    “5. That the final decree of the circuit court of Christian county, in the case of Frank P. Premian v. R. C. Huskey et al., in evidence in this cause, together with the further proof that said Bunn, the defendant in this cause, had actual notice of the pendency of said suit, and did appear and testify as a witness in said cause, is binding on defendant in this cause.
    “6. That the final decree of the circuit court of Christian county, in the case of Frank P. Premian v. R. C. Huskey et al., in evidence in this cause, together with the further proof that said Bunn, defendant, had actual knowledge of the pendency of said suit, and did appear and testify as a witness, is conclusive against the defendant in this cause as to each and every issue found by said decree.

      “7. That the evidence introduced in this cause, tending to shoAv that the money secured by the bonds, coupons and trust deed in this case was the money of any person other than the payee named therein, is incompetent, for the reason that said evidence attempts to vary the terms of a written contract byparol.
    “8. That the evidence tending to show that the defendant in this cause Avas not the owner of the bonds and coupons in evidence in this cause, at the time he assigned the same to plaintiff, is not competent, for the reason that the said evidence attempts to vary the terms of a written contract of assignment on said bonds by parol.
    “9. That the defendant herein is estopped from denying that he was the owner of said bonds and coupons in evidence. at the time of sale and assignment of the same to the plaintiff herein.
    “10. That the defendant in this cause is estopped from ■denying that the money secured by the bonds and coupons and trust deed, in evidence in this case, was the money of him, the .said defendant.”
    The plaintiff appealed from this judgment of the circuit court to the Appellate Court for the Third District, and that court affirmed the judgment of the circuit court. The plaintiff then prosecuted the present appeal to this court.
    Messrs. Tipton & Beaver, for the appellant:
    Bunn was concluded by the decree in the case of Drennan v. Huskey et al., finding the bonds void for usury. Fake v. Smith, 2 Abb. 76; Hersey v. Long, 30 Minn. 114; Bank v. Jarvis, 20 N. Y. 226; Challiss v. McCrum, 22 Kan. 157; Hannum v. Richardson, 48 Vt. 508.
    Judgment is admissible when the same question has been decided and judgment rendered between parties responsible for the acts of others. Emery v. Fowler, 39 Maine, 329; Lobdell v. Baker, 3 Metc. 469; Craig v. Ward, 36 Barb. 383; Heiser v. Hatch, 89 N. Y. 614; Key v. Dent, 14 Md. 98; Notes to Duchess of Kingston case, 2 Smith’s Lead. Cas.
    And it is not necessary that the parties should be the same in the second action, or that they should occupy the same relative position of plaintiff and defendant as in the former action, or that the form of action should be the same. The test is, whether the party against whom the former judgment is sought to be used, was or had- an opportunity of being heard, and the matter litigated is the same, and the parties .■are in privity as to such matters. Craig v. Ward, 36 Barb. 383; Castle v. Nayes, 14 N. Y. 329; Doty v. Brown, 4 Comst. 71; Kingsland v. Spalding, 3 Barb. Ch. 341; Ehle v. Bingham, 7 Barb. 494; Konitzky v. Meyer, 49 N. Y. 572.

      The decree upon the report of the master was admissible in evidence against the defendant, and was conclusive upon him. Fake v. Smith, 2 Abb. 76; Hersey v. Long, 30 Minn. 114; Blasdale v. Babcock, 1 Johns. 519; Rapelye v. Prince, 4 Hill, 119; Key v. Dent, 14 Md. 98.
    Testifying as a witness, and procuring testimony, is sufficient notice of a suit. Conger v. Chilcote, 22 Iowa, 18; Barney v. Dewey, 13 Johns. 224; Corwin v. Davison, 9 Cow. 22; Robbins v. Chicago, 4 Wall. 657; Blasdale v. Babcock, 1 Johns. 518; Boyd v. Whitfield, 19 Ark. 468; Sheldon v. Patterson, 55 Ill. 510; Gray v. Gillilan, 15 id. 454; Cole v. Favorite, 69 id. 460.
    The term “parties” includes all who are directly interested in the subject matter, and had a right to make defence, or to control the proceedings, and to appeal from the judgment. Robbins v. Chicago, 4 Wall. 657; Lovejoy v. Murray, 3 id. 18; 1 Greenleaf on Evidence, (14th ed.) secs. 522, 523.
    Express notice is not necessary to render the party liable for the amount of a judgment to an injured plaintiff. Robbins v. Chicago, 4 Wall. 657; Lovejoy v. Murray, 3 id. 18, and. cases cited; Robbins v. Chicago, 2 Black, 418.
    It is not necessary, in any case, to constitute notice, that it should he in the shape of a distinct and formal communication, and it will he implied in all cases where a party is shown to have had such means of informing himself as to justify the conclusion that he might and ought to have availed himself of them. LeNeve v. LeNeve, Lead. Cas. in Eq:; Robbins v. Chicago, 4 Wall. 668; Warner v. McGary, 4 Vt. 500.
    In an action brought by B against A on the implied warranty as to the title, it was held that the record of the recovery against B by G was proper evidence. Blasdale v. Babcock, 1 Johns. 5l9.
    Where a third person is responsible over in an action, and is duly notified of the suit, the judgment therein, if rendered without fraud, will be conclusive against him, and it is not essential that he be requested to assume the ease. Heiser v. Hatch, 89 N. Y. 94; Hersey v. Long, 40 Minn. 114; Barney v. Dewey, 13 Johns. 224; Blasdale v. Babcock, 1 id. 517; Corwin v. Davison, 9 Cow. 22; Robbins v. Chicago, 4 Wall. 657.
    Mr. James S. Ewing, for the appellee:
    There can be no liability enforced against appellee arising out of an implied warranty, for the reason the bonds were assigned without recourse. Hannum v. Richardson, 48 Vt. 508; Bank v. Jarvis, 20 N. Y. 226; Goseepertz v. Bartless, 24 Eng. L. & Eq. 156.
    Appellee is not precluded by the decree in the foreclosure case. 1 Greenleaf on Evidence, sec. 523; Rodgers v. Haines, 3 Greenlf. 362; Gaytes v. Bank, 85 Ill. 256.
    It is a general and established rule of law, that when a party’s right may be collaterally affected by a judgment, which for any cause is erroneous and void, but which he can not bring a writ of error to reverse, he may, without reversing, prove it so erroneous and void in any suit in which its validity is drawn in question. Vose v. Moulton, 4 Cush. 2829; Alexander v. Gould, 1 Mass. 165; Smith v. Saxton, 6 Hickford, 483; Pond v. Makepiece, 2 Metc. 114; Leonard v. Briant, 2 id. 270.
    Mr. Frank P. Drennan, pro se:

    In actions on implied warranties, the vendor is bound by the judgment against his vendee, when the vendor had notice of the pendency of the suit, and it is not necessary to give formal notice; and this rule is recognized and followed in the following cases: Hannum v. Richardson, 48 Vt. 508; Challiss v. McCrum, 22 Kan. 157; Bank v. Jarvis, 20 N. Y. 226; Hersey v. Long, 30 Minn. 114; Fake v. Smith, 2 Abb. 76; Kip v. Brigham, 6 Johns. 158; Trustees v. Galation, 4 Cow. 340; Beers v. Pinney, 12 Wend. 310; Rogers v. Kneeland, 13 id. 123; Miner v. Clark, 15 id. 425; Sisk v. Woodruff, 15 Ill. 15;
      Blasdale v. Babcock, 1 Johns. 518; Brewster v. Countryman, 12 Wend. 446; Barney v. Dewey, 13 Johns. 224.
    That the same rule of law applies in reference to suits on implied warranties, on sales of choses in action, as upon express warranties on sale ■ of real estate, and the law is well settled that judgment of eviction against the vendee in such cases, with notice to the vendor, is binding on the vendor, see McConnell v. Downs, 48 Ill. 271; Cooper v. Watson, 10 Wend. 205; Pane v. Whitman, 3 Watts, 409; Turner v. Goodrich, 26 Vt. 708; Hinds v. Allen, 34 Conn. 195; Chapman v. Holmes, 5 Halst. 20; City of St. Louis v. Biswell, 46 Mo. 157; Wimberly v. Collier, 32 Ga. 13; Wendell v. North, 24 Wis. 223; Boyd v. Whitfield, 19 Ark. 469; Gould on Covenants for Title, (4th ed.) 218.
    His presence and participation in the defence is conclusive. Chamberlin v. Rhodes, 11 Allen, 373.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The circuit court, in effect, ruled, as a matter of law, and that ruling is affirmed by the judgment of the Appellate Court, that proof that appellee was notified of the pendency of the foreclosure suit, and of the defence of usury thereto interposed, and requested to rebut and disprove such defence, will not render the decree of foreclosure conclusive against appellee in this suit. Two questions for our consideration arise upon this ruling: First, is the vendor of negotiable bonds or notes, in the absence of express representation, and who assigns them “without recourse,” liable, on an implied warranty, for any deficiency between the amount apparently due upon the face of the instrument and the amount legally collectible upon it ? Second, if liable, is he concluded by the judgment between his vendee and the payor of the instrument, by reason of having been notified, in apt time, of the pendency of the suit and of the defence of usury set up by the payor, although not expressly requested to take charge of the suit, and not notified that the vendee intends to hold him responsible for the result of the suit ?

First—Daniell, in his work on Negotiable Instruments, (3d ed.) vol. 1, see. 670, says: “When the indorsement is ‘without recourse,’ the indorser specially declines to assume any responsibility as a party to the bill or note; but, by the very act of transferring it, he engages that it is what it purports to be,—the valid obligation of those whose names are upon it.” And he then proceeds to show that the holder may recover against the indorser “without recourse,” where the note was invalid between the original parties, because of the want or the illegality of the consideration, as well as in certain other cases. See, also, to like effect, Parsons on Bills and Notes, p. 39.

In Ticonic Bank v. Smiley, 27 Maine, 225, an over-due note was transferred with the indorsement, “indorser not holden, ” and it was held the indorser was, nevertheless, liable to his vendee for any payment made on the note before the transfer, or any set-off existing against it of which the note gave no indication and the vendor gave no information.

In Challiss v. McCrum, 22 Kan. 157, a negotiable promissory note was transferred by indorsement “withoutTrecourse. Suit was brought by the assignee upon the note, and the defence of usury was set up. It seems that by the law of Kansas, as by our statute, usury only forfeits the interest. The defence was sustained, and the assignee, in consequence, recovered $229.50 less than the amount which, upon the face-of the note, purported to be due thereon. The assignee thereupon sued the indorser, and recovered a judgment for this deficiency. It was held that the indorser, although he indorsed without recourse, was liable on the implied warranty that the note was valid for the amount expressed upon its face.. Brewer, J., in delivering the opinion of the court, after a somewhat elaborate examination of the authorities bearing, upon the question, said: “These authorities fully sustain the1 ruling of the district court. The note was not the legal obligation of the maker to the full amount. As to the usurious-portion, it was as it were no note. This was a defect in the' very inception of the note. It was known to the vendor, and it arose out of his own dealings in the matter. By all these' authorities there is an implied warranty against such a defect, and the vendor is liable for a breach thereof.” See, also,. Randolph on Com. Paper, sec. 120.

It is conceded by counsel for appellee, that this case is-precisely in point here, but it is contended that it was not-correctly decided, because there was no fraud there, and in. support of that contention it is argued, that unless that whichi is claimed to be fraud rendered the note absolutely void, and not merely voidable, it can not be considered. No authority is cited in behalf of this contention, and, in our opinion, it is-predicated upon a misconception of what is necessary to constitute a breach of an implied warranty. That which is absolutely void, in the sense of this contention, is incapable of ratification. See Bishop on Contracts, (enlarged ed.) sec. 610,. et seq. But it is manifest a sale which will authorize an action for a breach of an implied warranty, in many, if not in most,, cases, is but voidable. The purchaser may elect to waive his right to avoid it, and ratify it if he will. As illustrative of this, may be mentioned all those cases where the buyer does not inspect the thing bought, but trusts to the vendor, and the quantity and kind of goods are delivered, but upon inspection they prove unsalable, by reason of defects in quality. See Benjamin on Sales, (1st Am. ed.) 484; Bigelow on Fraud, pp. 34, 35.

A note or bond given without consideration, whether voluntarily, or through mistake as to the state of indebtedness between the parties, or for a consideration that totally fails; as, in consideration of a sale and warranty where the warranty is broken, is not absolutely void in the sense as here contended for by counsel; and yet, in the first two instances there would be a total want of consideration, and in the last, a failure of consideration, which might be set up as defences to the collection of the note in a suit by the payee, or by an assignee after maturity, or with notice, against the payor. But none of these defences would be admissible to a suit by an assignee before maturity and without notice, as would any defence showing that the note was absolutely void. See Story on Bills, see. 188.

Where money is paid by one party to another for a given article assumed to be sold, but the seller delivers to the purchaser only a worthless imitation of that article, there is a legal fraud, and an action for money had and received will lie for the money thus paid for which nothing has been received. (Lunt et al. v. Wrenn, 113 Ill. 168. And see, also, Bigelow on Fraud, p. 35, supra.) So if the buyer has paid for a certain quantity of goods, and the vendor has delivered only a part, and makes default in delivering the remainder, the buyer may rescind the contract for the deficiency, and recover the price paid for the quantity deficient, for the parties in this case have, by their conduct, given an implied assent to a severance of the contract, by the delivery, on the one part, and the acceptance, on the other, of a portion, only, of the goods sold. This is, in its nature, a total failure of consideration for part of the price paid, as contradistinguished from cases of a partial failure of the whole. (Benjamin on Sales, (1st Am. ed.) p. 310,—citing Deveau v. Connolly, 8 C. B. 640.) And so we said, in Robinson v. McNeill, 51 Ill. 225, where there had been a transfer of book accounts by the defendant to the plaintiff, and suit was brought for a failure to realize the amount from the debtors: “The mere transfer of the accounts as unpaid, amounted to a warranty that they were so, as Robinson knew whether he had received payment, and would be guilty of a fraud in selling as unpaid a debt which had been actually discharged.” It is true that the defence of usury is personal to the borrower and his privies, and that it does not therefore render the instrument affected absolutely void, but only voidable; but in this respect, an instrument to which that defence may be interposed, is in nowise different from instruments to which the defence of payment, or failure of consideration by reason of a fraudulent and deceitful sale, may be interposed. The borrower and his privies can alone set up the latter as well as the former defence.

The only instances, of which we are aware, where it may be material to distinguish between that which renders an instrument absolutely void and that which renders it voidable, when considered as a ground of defence, are in suits upon instruments negotiable by the law merchant. In certain cases, under that law, an assignee, before dishonor, will not be affected by defences rendering the instrument voidable, merely, as between the original payor and payee, but will be concluded by defences rendering it absolutely void; but there is no question, here, as to the rights of parties under the law merchant, nor even under our statute in relation to negotiable instruments. The indorsement transferred title, and it gave no notice of deceit in the sale. It is not claimed there is, under such an indorsement, liability by virtue of any contract of indorsement, and upon no principle that we are aware of, is such an indorser, by the fact of indorsement, less hable for deceit in the sale than he would have been had he transferred a chose in action without indorsement, as in Robinson v. McNeill, supra.

That the sale of a chose in action, by the party to whom it is payable, expressed and understood to be for a given amount, but in fact subject to be reduced to a sum materially less than that amount, by the defence of usury, to a party having no previous notice of the usury, and without informing him of the usury, is a legal fraud, must be as clear as it is that it is a legal fraud to transfer to a purchaser in good faith, without notice, an account for an expressed amount which had never been incurred, or which had been paid. The usury is the act of the party selling. He does not own the sum forfeited by the usury, has no legal right to collect it, and therefore has no right to sell and transfer it to another. To that extent he has nothing to sell or transfer. The note, too, is his act, and by him, therefore, it is made to express what, in law, is a, falsehood upon its face, and by this legal falsehood he induces another to believe what is not legally true, and to pay him money which he would not pay if he knew the legal truth. There is willful deception, in a legal aspect, and consequent gain, upon the one side, and, legally speaking, ignorant credulity, and pecuniary loss as its consequence, upon the other side. See Kerr on Fraud, (Bump’s ed.) 42.

Second—Where one party is liable to indemnify another against a particular loss, it is because, by law or by contract, the primary liability for such loss is upon the party indemnifying, and in such instances the party bound to indemnify is in privity with the party to be indemnified, and he therefore has a direct interest in defeating any suit whereby there may be a recovery as to the subject matter of the indemnity, against the party to be indemnified. The party to be indemnified, moreover, is, manifestly, directly interested in having him defeat all recovery in such suit, and so their respective interests and duties in respect of such suit must be the sapie. Bawle, in his work on “Covenants for Title,” (2d ed.) page 242, after alluding to the ancient practice of “vouching to warranty,”' says: “Partly, perhaps, from analogy to that practice, it is well settled in this country, in most if not in all of the States, that in general, upon suit being brought upon a paramount claim against one who is entitled to the benefit of a covenant of warranty, the latter can, by giving proper notice of this action to the party bound by that covenant, and requiring him to defend it, relieve himself from the burden of being obliged afterwards to prové, in the action on the covenant, the validity of the title of the adverse claimant.” He then adds: “A similar course of decision has also been adopted in England, Testing, however, rather upon general principles than any analogy to the old common law practice of voucher.”

In Duffield v. Scott, 3 Burn. & East, 374, (1st series Eng. Com. R. vol. 6, p. 208,) Bulleb, J., speaking of this question, :said: “The purpose of giving notice is not in order to give a .ground of action, but if a demand be made which the person indemnifying is bound to pay, and notice be given to him, and he refuse to defend the action, in consequence of which the person to be indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action was not bound to pay the money.”

In Littleton v. Richardson, 34 N. H. 179, the court, per Bell, J., said: “Y(hen a person is responsible over to another, •either by operation of law or by express contract, and he is ■duly notified of the pendency of the suit, and requested to take upon himself the defence of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim as if he were the real and nominal party "upon the record. In every such case, if due notice is given to •such person, the judgment, if obtained without fraud or collu•sion, will be conclusive against him, whether he has appeared •or not.”

In numerous other decisions, the general doctrine that notice, in such cases, to the party responsible over, imposes upon .him the duty of defending, and renders him liable for the result of the suit, is asserted. Blasdale v. Babcock, 1 Johns. 516, *517; Barney v. Dewey, 6 id. 224; Inhabitants of Milford v. Holbrook, 9 Allen, 17; City of Boston v. Worthington et al. 10 Gray, 496; Pitkin v. Leavitt, 13 Vt. 379; Turner v. Goodrich, 26 id. 708; Bond v. Goodrich, 1 Nott & McCord, 201; Ryerson v. Chapman, 66 Maine, 563. See, also, Wade on Notice, sec. 180c; Freeman on Judgments, sec. 181.

The only question, in this connection, upon which we find any diversity in the authorities, is, whether it is indispensable that the indemnifying party should, in addition to having notice of the pendency of the litigation, be requested to take charge of it, and notified that if he fail, he shall be held responsible. That view -is taken in Sowers v. Schmidt, 24 Wis. 417, and Paul v. Whitmore, 3 Serg. & Watts, 410, and, it may be, also in other cases. But, in our opinion, the weight of . reason and of authority is the other way. An obligation to •' indemnify against the result of a particular suit, necessarily assumes, that as between the party obligated to indemnify and the party to be indemnified, the entire burden of the suit should fall on the former, and that the latter should be entirely free of it, and therefore, that, as between them, the former, and not the latter, should be the real party to the suit, and --.prosecute or defend it. But since the latter may sue or be sued without the knowledge of the former, he might not know of the existence of the suit, and therefore could not prosecute or defend it, but if notified of the existence of the suit in apt time, he could prosecute or defend it, and it being his duty to do so, his failure to do so successfully would be conclusive against him that he -was unable to do so, and that the judgment was right. In such ease, the obligation to indemnify operates, from the making of the contract, as to every burden or loss ' within its contemplation, and although no suit could be maintained until after loss, the recovery would be because it was the duty of the indemnifying party to have prevented loss, / and it is absolute, and not conditioned upon request^We are unable to perceive why, in this case, more than in any other, a party shall have been requested to do that which it was his duty to do without request, or how a. notice that he will be held responsible can be necessary, where he is, by contract, already legally responsible.

In Blasdale v. Babcock, supra, the action was for -the price paid for a horse which the defendant had sold to the plaintiff, but which belonged to another person, who had recovered it from the plaintiff. The record of the judgment in favor of the owner of the horse, and against the plaintiff, was admitted in evidence as conclusive of the question of title. On objection to the competency of this evidence, it was insisted that it ought to appear not only that the defendant had notice of that suit, but also that he had notice of the time when the cause was actually tried; but the court held that the first notice given to the defendant, of the pendency of that suit, was sufficient, and he was bound to know all the subsequent proceedings, without a special notice of the time every court was to be held.

In Barney v. Dewey, supra-, the declaration stated that the defendant, intending to deceive, etc., falsely represented a certain horse to be the property of the defendant, thereby inducing the plaintiff to purchase him; that the defendant well knew that the horse belonged to another person,—one Thaddeus Dewey,— and in an action brought against the plaintiff by T. Dewey, testified that the horse was the property of T. Dewey, and that he, the defendant, had no right to part with the horse. There was a demurrer to the declaration, which was overruled. The court, in considering the sufficiency of the declaration, said: “There is no allegation of notice to the defendant, of the pendency of the suit brought by Thaddeus Dewey, but there is an averment of a fact tantamount. It is alleged that the defendant was a witness on that trial, and proved, himself, that he did not own the horse when he sold him to the plaintiff.”

In Beers v. Pinney & Green, 12 Wend. 309, in an action on a bond to indemnify special bail, it was held that notice, merely, of the pendency of the suit against the bail, was sufficient to conclude the obligor in the indemnity bond. The court said: “The declaration avers that the plaintiff gave immediate notice to the defendants, of the commencement of the suit against him, upon his recognizance, by Johnson, and of the nature and pendehcy thereof, and the proceedings therein. After such notice, they were bound to defend the suit.”

In City of Chicago v. Robbins, 2 Black, 418, the city had ¡been sued, and a recovery for damages had, because of a nuisance created and maintained by Bobbins, in making and failing to properly guard an excavation in one of the streets of the city, and sought to recover back from Bobbins the amount thus recovered from it. One of the questions discussed in argument and considered by the court was, whether Bobbins had been sufficiently notified of the pendency of the suit against the city, to be concluded by the judgment therein. The court saidi '“An express notice to him to defend the suit was not necessary in order to charge his liability. (Barney w. Detvey, 13 Johns. 226; Warner v. McGary, 4 Vt. 500; Beers v. Pinney, 12 Wend. 309.) He knew that the ease was in court, was told of the day of trial, was applied to, to assist in procuring testimony, and wrote to a witness, and is as much chargeable with notice as if he had been directly told that he could contest Woodbury’s right to recover, and that the city would look to him for indemnity.” The same ease was again before the Supreme Court of the United States as Robbins v. City of Chicago, and is reported in 4 Wall. 657. The sufficiency of the notice was again considered, and the foregoing ruling was re-affirmed. An instruction was there sustained which told the jury that if the attorney of the corporation informed the defendant of the suit and its nature, and of the day of the trial, and conversed with him about the testimony for the defence, he was as much chargeable with notice as if he had been directly told that he could contest the right of the injured party to recover, and that the corporation would look to him for indemnity in case of an adverse result.

In City of Boston v. Worthington, 10 Gray, 496, the action was similar to that in City of Chicago v. Robbins, supra, and the question of notice to the party causing the nuisance, and hence bound to indemnify, was also there discussed and considered. The court said: “Had the defendants such notice of the pendency of Southwick’s action as renders the judgment recovered therein conclusive against them, to any extent ? We are of opinion that they had. They were informed when Southwick’s writ was returnable; that he had sued for an injury received oil a day named, by a defect in the highway called Congress Square, in a place occupied by them. They were directed to take notice that the plaintiffs would hold those responsible who had the charge and custody of the place of the accident, and they were required to govern themselves accordingly. They were not, in terms, requested to take upon themselves the defence of that action; and this was not necessary in order to render the judgment conclusive against them as to the facts thereby established. * * * The defendants, by the notice given to them of Southwick’s action, had an opportunity to defend it, and the case shows that they ‘were present and at the trial, and testified therein.’ This fact, according to Spencer, J., in 13 Johns, ubi supra, is sufficient to show such notice as to render the judgment conclusive against them.”

In Holbrook v. Holbrook, 15 Maine, 12, the court said: “It can not be material to the person agreeing to indemnify, that he should have a formal notice served upon him. The law requires that he should have notice before the judgment can be used against him, because he is the real party in interest. But any notice which will enable him to present any defence which he may have, either in law or fact, is all that can be useful to him, and the law requires no vain or useless ceremonies in such cases.” See, also, Veazie v. Railroad Co. 49 Maine, 119.

A recent case in point, also decided by the Supreme Court of Maine, is Davis v. Smith, 79 Maine, 351. Suit was brought upon a bond given by the defendant to indemnify the plaintiff against loss on account of paying the defendant, who claimed to be a guardian, the amount of a promissory note given to another as guardian of the same person. The person to whom the note was given, sued the plaintiff, and recovered a judgment for the amount due upon the note, which he paid. One of the material questions in the case was, whether the defendant had such notice of the pendency of the suit against the plaintiff that she was concluded by that judgment. The court said: “We are of the opinion, from the evidence before us, and with the inferences legitimately to be drawn from it, that the defendant had such notice of the pendency of the suit as renders the judgment recovered therein conclusive against her. She employed and paid the counsel who tried the ease. She-went, in company with the plaintiff, twice to Dover, to have the case tried, it being continued the first time because the other side was not ready. She was present at the trial, testified in the case, and paid all the expenses of this plaintiff and his witnesses. * * * The facts shown are sufficient to render the judgment conclusive against her, although the plaintiff had not, in terms; requested her to take upon herself the defence of that action. ‘This was not necessary,’ say the court in Boston v. Worthington, supra, ‘to render the judgment conclusive against them as to the facts thereby established/ And this principle is established by the great weight of authority, that where one stands in the position of indemnitor to another who is liable over to a third party, his liability may be fixed and determined in the action brought against such third party, by notice of 'the pendency of such action, and an opportunity offered him to defend it. * * * In such case, the authorities hold that notice in writing, or even express notice, is unnecessary, but that notice may be implied from his knowledge of a pendency of the action and a participation in the defence.” See, also, Ryerson v. Chapman, 66 Maine, 563; Warner v. McGary, 4 Vt. 508.

We are therefore of opinion, that the circuit court erred in refusing the third, fourth, fifth and sixth requests as asked by . the appellant, and that the Appellate Court erred in affirming that ruling.

Some point was made in argument that appellee was a mere broker, having no interest in the notes or bonds. No question arises upon the record in that respect. No question of that kind was raised in the trial court or considered in the Appellate Court. Although in fact a broker; unless the evidence showed that appellant knew him to be a broker, and dealt with him as such, he occupies the position of a principal.

No question was raised as to the good faith of the adjudication in the foreclosure case, either by requests to rule in that respect, or by objections to the introduction or exclusion of evidence. Of course, a decree by- collusion would not be conclusive against the indemnitor, but there is nothing in that respect before us, as a question of law.

The judgments of the Appellate and circuit courts are reversed, and the cause is remanded to the circuit court for a trial de novo, in conformity with the views hereinbefore expressed. Judgment will be entered in this court for the costs of the appellant in the Appellate Court as well as in this court.

Judgment reversed.