author:
Mr. Justice Craig
      Mr. Justice Dickey,

text:
    John J. Lochenmeyer et al. v. William Fogarty et al.

      Filed at Springfield June 11, 1884.

    1. Payment—to whom it must be made in order to operate as an extinguishment of the debt. In order that the payment of a note shall operate as an extinguishment of the debt, it must be to a person authorized to receive it. A payment to a mere custodian, when the debtor knows the money secured by the note belongs to another, will not discharge the same, nor will the payment of the same to an attorney once having authority to receive payment, after his authority has been revoked by the death of the owner.
    2. So if the maker of a note made payable to a guardian, for the benefit of his ward, which is left with an attorney by the guardian for safe keeping, after the death of the guardian pays the same to the attorney, by giving his other notes payable to the attorney, which are indorsed and sold by the latter before maturity, and afterward paid, such payment will not be treated as a discharge of the original debt, and the maker may, notwithstanding, be required to pay the same again.
    3. Attorney at law—collection of debts—revocation of authority by death of client. The authority of an attorney at law to collect a note placed in his hands by a client, is revoked by the death of the latter.
    4. Same—in what payment may be received. In the absence of special authority, an attorney can receive payment of his client’s note only in money. He can not accept other notes of the maker made payable to himself, and if he does, it will be no payment, unless ratified by the client.
    5. Subrogation—in favor of surety paying for his principal. A surety, or one standing in that situation, who is compelled to pay the debt of the principal, will in equity be entitled to be subrogated to all the rights and equities of the creditor as to any fund, lien or equity which the creditor may have against any other person or property on account of the debt. The equities of the surety extend to all the rights of the creditor respecting the debt which the surety pays.
    6. Administration or estates—liability of executor for money reported, but never received. A guardian sold land of his ward, and received part payment in money, and notes for the balance, secured by mortgage and personal security, all of which he left in the hands of his attorney, where they remained until after his death. The attorney, without authority, surrendered the notes to the maker, taking others payable to himself, which he sold and assigned before their maturity, appropriating the proceeds to his own use. He, as attorney for the executor of the guardian’s estate, procured the executor to report to the county court his receipt of the money and the proceeds of the notes originally taken, and after his own appointment as guardian of the same ward, filed his claim against the estate of his predecessor, and obtained judgment for the amount reported as in the hands of the executor, and thereupon receipted for the same as paid to him. The executor’s final account showed such payment to the second guardian, and was approved by the court: Held, that the record showed no liability against the executor, and that if parol evidence was admitted to charge the estate, in opposition to what the record thus showed, by proving the executor paid nothing in fact to such second guardian, it was proper also to show by parol that the executor never received any of the money or proceeds of the notes.
    Appeal from the Appellate Court for the Third District;— heard in°that court on appeal from the Circuit Court of Logan county; the Hon. Lyman Lacey, Judge, presiding.
    This was a bill filed by William Fogarty, to compel payment by appellants, Lochenmeyer, George Stoll and John Cutlip, and Ezekiel French, executor of the estate of Jacob Hammon, deceased, of the amount that Fogarty was compelled to pay as surety upon the guardian bond of Edward Lynch, to Joseph Beam, his successor as such guardian, and also to compel French to account for money received by him, which, it was alleged, belonged to the ward.
    The facts of the case, in brief, are substantially these: On April 18, 1864, Jacob Hammon was appointed guardian of Edward Applegate, who was the owner of certain lands. On February 12, 1875, under an order of the county court, Hammon, as such guardian, sold a part of the land to appellant John J. Lochenmeyer, for the sum of $2366.55, and received in cash $762.48, (the first payment,) and took two promissory notes from him, with George Stoll as surety, dated February 15, 1875, each for $749.71, payable in one and two years from the date thereof. Another part of the land was sold to John Cutlip for $152.40, of which $52.40 was paid in cash, and a note given for the" balance. These notes were all payable on their face to Jacob Hammon, guardian, etc., and were secured by mortgage on the lands sold. At the sale all the moneys paid and the notes given were placed in the hands of Edward Lynch, the attorney of the guardian. On November 30, 1875, and before the maturity of any of the notes, Hammon died, leaving them still in the hands of Lynch. On December 22 Lynch was appointed guardian of the minor, on condition that he give bond, with security, in the sum of $4000, but he did not qualify by giving bond until June 11, 1877. On December 25, 1875, Ezekiel French qualified as executor of the will of Jacob Hammon, deceased, Lynch being his legal adviser and attorney in the management of the estate, and transacted the business of the estate. On February 14, 1876, at the maturity of the Cutlip note, and the first maturing of the Lochenmeyer and Stoll notes, Cutlip went to the office of Lynch and took up the note he had given to the guardian, giving a new note in its place. On the same day Lochenmeyer and Stoll went to Lynch’s office and took up the two notes executed by them to Hammon, and executed other and smaller notes, payable to Lynch, for the full amount of the two notes of $749.71, and at the same time Lochenmeyer executed a mortgage to Lynch on the premises in question, which was never recorded. These notes were transferred by Lynch before their maturity, and were afterward paid by the makers to the holders. On July 22, 1876, French, as executor, filed an inventory in the county court, showing $1432.86 on hand at the time of the decease of his testator, and the two notes of Lochenmeyer and Stoll, of $749.71 each, and the Cutlip notes; and on June 28, 1877, reported to the county court the collection of these notes. On the same day Lynch filed a claim for the amount of money in the executor’s hands and the collection proceeds of the notes, amounting to $3554.66, which claim was allowed by the county court. Lynch thereupon receipted to French for $3138.14, leaving a deficiency of $416.52, which Lynch afterward collected by taking a note from the.surety of Hammon. On June 11, 1877, Lynch gave bond as guardian, with one Thompson and William Fogarty as his sureties. On June 29, 1877, Lynch filed in the county court his report as guardian, showing that he received from French, the executor, the $3138.14, and that there was a balance due from Hammon’s estate of $416.52, which report was approved by that court February 26, 1878. On April 18, 1878, Lynch filed another report, showing a balance in hand belonging to his ward, of $3644.43, which was approved on the same day, and he was ordered to pay this amount over to Ream, his successor, he having been removed for failure to give additional security on his bond. On September 24, 1877, French released the mortgage given by Lochenmeyer. Lynch failing to pay over to his successor, suit was brought on his bond for the amount thus appearing in his hands, and a judgment obtained, which Fogarty paid, and filed this bill. On the hearing the court dismissed the bill as to French, the executor of Hammon’s estate, rendered a decree there was due on the note given by Cutlip to Hammon the sum of $175.80, and that there was due on the two notes given by Lochenmeyer and Stoll to Hammon, $2636.36, and that they pay those sums to the complainant, with six per cent interest, and awarded executions therefor, and further provided that if these sums were not paid within twenty days, the master should sell the mortgaged premises. Lochenmeyer and Stoll and Cutlip' prayed and perfected an appeal to the Appellate Court, where the decree was affirmed, and they bring the case to this court by their further appeal, and Fogarty also appealed from the decree dismissing the bill as to French.
    Mr. Thomas F. Tipton, for the appellants Lochenmeyer and Cutlip:
    On the death of Hammon the legal title to the notes became vested in French, the executor. Lave v. Thompson, 43 N. H. 320; Shield v. Helds, 34 id. 407; Davis v. Boylston, 9 Mass. 337; Clapp v. Stoughton, 10 Pick. 463; Bucker v.
      Buckingham, 18 Conn. 110; Rooveback v. Lord, 4 id. 337; Ladd v. Wiggins, 35 N. H. 421.
    Lynch, being the attorney for the executor of the will of Hammon, had authority, as such, to collect the notes, and the executor afterward ratified the acts of his attorney.
    Lynch, French, Eeam and Fogarty are each estopped from setting up the fact, if a fact, as against appellants, that the notes were not fully paid. The judgments of the county court finding the money due on the notes to be in the hands of French, and paid over by him to Lynch, are conclusive in a collateral proceeding. Buckmaster v. Carlin, 3 Scam. 104; Rockwell v. Jones, 21 Ill. 279; Chesnut v. Marsh, 12 id. 173; Weiner v. Heintz, 17 id. 259; Horton v. Critchfield, 18 id. 133.
    The court having jurisdiction to approve of the report of French as executor, and the allowance of the claim of Lynch as guardian, its judgment is conclusive in this collateral proceeding. Young v. Lorain, 11 Ill. 624; Fitzgibbon v. Lake, 29 id. 165; Hobson v. Ewan, 62 id. 146; Stowe v. Kimball, 28 id. 93; Pensoneau v. Heinrich, 54 id. 271.
    Fogarty, being surety, for Lynch, stands in no better position than Lynch. Dillingham v. Jenkins, 7 S. & M. 479; McCabe v. Raney, 32 Ind. 309.
    The order, on Lynch to pay over this money was conclusive on him and his sureties. Ammon v. People, 11 Ill. 6.
    A party for whose benefit the doctrine of subrogation is exercised, can acquire no greater rights than those for whom he is substituted. Alliance. Co. v. Louisiana Ins. Co. 8 La. 1; Simpson v. Thompson, 3 App. Cas. (Eng. L.) 279; Huston v. Bank, 25 Ala. 256; Brown v. Long, 4 id. 50; Brandt on Suretyship, sec. 276; Sheldon on Subrogation, sec. 44.
    Subrogation is purely an equitable right, and ought to be denied in all cases where its exercise would produce injustice. McGinnis’ Appeal, 4 Harr. 448; Lloyd v. Galbraith, 8 Casey, 103; Zigler v. Long, 2 Wat. 206; Hancock v. Steen, 2 Miles, 273.

      Subrogation will never be allowed unless the party applying for it has greater equity than the party opposing it. Neff v. Miller, 8 Barr, 351; Hines v. Heller, 3 W. & S. 401; In re McGill, 6 Barr, 504; McCormick’s Admr. v. Irwin, 11 Casey, 117; Dent v. Wait, 8 W. Va. 47; Eaton v. Hasty, 6 Neb. 425.
    A surety will not be subrogated to the rights and liens of the creditor, so as to defeat the interest acquired and held by a third person, when that interest, though subordinate to that of the creditor, is prior in date to the undertaking of the surety. Patterson v. Pope, 5 Dana, 241; Bank v. Sherley, 12 Bush, 304.
    The right of subrogation, and the equitable assignment of the claim of the creditor against the principal debtor, relate to the date of the suretyship against the principal debtor and those claiming under him. McArthur v. Martin, 23 Minn. 74.
    The liability of Lynch and his sureties by his guardian’s bond was not restricted to matters occurring after the execution of the bond, but he and his sureties, appellee and Thompson, became responsible to the ward, or any succeeding guardian of the ward, for all moneys, etc., that came to the hands or possession of the guardian, whether before or after the execution of the bond; and neither he nor his sureties will be permitted to show that he squandered the money before the execution of the bond. Fogarty v. Ream, 100 Ill. 366; Roper v. Sangamon Bodge, 91 id. 518; Cowley v. People, 95 id. 625; Pinkstaff v. People, 59 id. 148; Commissioners v. Maryandt, 2 Bev. 228; Stoval v. Banks, 10 Wall. 583; United States v. Girault, 11 How. 27; Morely v. Town of Metamora, 78 Ill. 394; Ream v. Lynch, 7 Bradw. 161.
    A party to a judgment will not be permitted to contradict the record, nor be allowed to show that the judgment was without consideration. Bigelow on Estoppel, 19, 45; Lane v. Bommelman, 17 Ill. 97; Wilson v. Heintz, id. 259; Goudy v. Hall, 30 id. 116; Elston v. Chicago, 40 id. 514.

      Messrs. Blinn & Hoblett, for the appellee French:
    The record shows that if French ever had any of this money, he has properly accounted for it.
    Fogarty, to make out his case, is compelled to go behind, the records. He has proved not only that French never paid Lynch the amount of the receipt, or any part of it, but also that French never had received this money.
    There is no principle governing the law of estoppel that is more certain and well defined than that there is no estoppel if the truth appears. Bigelow on Estoppel, 293; Comyn’s Digest, 2; Sinclair v. Jackson, 8 Cow. 585.
    An estoppel can never be invoked by one who has procured the false recitals or the act done. Heffner v. Vandolah, 57 Ill. 520; First Nat. Bank v. Ricker, 71 id. 441; Preston v. Mann, 25 Conn. 118.
    Messrs. Beach & Hodnett, for William Fogarty:
    Payment to the former guardian is no payment. Holmes v. Field, 12 Ill. 424.
    A party making payment is bound to know that the person to whom he pays is authorized to receive it. Holmes v. Field, 12 Ill. 425; People v. Smith, 43 id. 220; Triplett v. Scott, 12 id. 137; Hodson v. McConnell, id. 170; People v. Deams, 92 id. 192; Greenhood v. Keator, 9 Bradw. 183; Sanders v. Norton, 4 T. B. Mon. 464; Lewis v. Ingersoll, 3 Abb. 55; 1 Keyes, (N. Y.) 347; Day v. Boyd, 6 Heisk. 458; Watts v. Kinney, 3 Leigh, (Va.) 272.
    Fogarty became subrogated to the rights of Beam, as against Lochenmeyer, Stoll and Cutlip, and French and his sureties. Fogarty v. Ream, 100 Ill. 366; Crawford v. Richeson, 94 id. 165; City of Keokuk v. Love, 31 Iowa, 119; Bunting v. Ricks, 2 Dev. & Bat. Eq. 130; 32 Am. Dec. 699; Green v. Crockett, 2 Dev. & Bat. Eq. 230; Lowe v. Newbold, 4 Jones Eq. 212.

      The receipt given by Lynch to French was no payment. Patterson v. Inhabitants of Freehold, 38 N. J. L. 255; Brandt on Suretyship and Guaranty, sec. 468, page 606.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by William Fogarty, against appellants, and Ezekiel French, to require appellants to pay certain notes which were given by them, payable to Jacob Hammon, guardian of Edward Applegate, and also to compel French to account for certain moneys belonging to the ward, alleged to have been received by him as executor of the estate of Jacob Hammon, deceased. On the hearing, the court rendered a decree against appellants, as prayed for in the bill, but dismissed the bill as to French.

The facts out of which this litigation arose are substantially as follows: On the 18th day of April, 1864, Jacob Hammon was appointed guardian of Edward Applegate by the county court of Logan county. The minor owned a certain tract of land in Logan county, which the guardian sold, under a decree of court, February 15, 1875, which authorized the sale. The land brought at the sale $2414.30. A part was sold to John Cutlip for $152.40, who paid in cash $52.40, and gave his promissory note for $100, payable to Jacob Hammon, guardian, due in one year. The balance of the land was sold to John L. Lochenmeyer for $2261.90. He paid down $762.48, and gave his two promissory notes, for $749.71 each, due in one and two years, with ten per cent interest. George Stoll signed the notes as surety, and a mortgage was also given on the premises to secure the payment of the purchase money. At the sale, the money and notes passed into the hands of Edmund Lynch, who was the attorney of the guardian in obtaining a decree to sell the land. Jacob Hammon died November 30, 1875, testate, and Ezekiel French was named as executor in his will, and qualified as such. On or about the 14th day of February, 1876, Cutlip called on Lynch, and satisfied the note he had given Hammon, guardian of Applegate. On the same day, Lochenmeyer and Stoll went to Lynch’s office and took up the two notes of $749.71 each, and gave in their jdace smaller notes for the full amount of the indebtedness, all payable to the order of Lynch. These notes were indorsed and sold by Lynch before maturity, and after they became due they were all paid by the makers. On the 22d of December, 1875, an order was made in the county court of Logan county appointing Lynch guardian of Edward Applegate, upon filing bond in a certain amount, with certain persons named in the order, as sureties. No bond was, however, filed until June 11,1877, when Lynch filed a bond, with complainant as surety, and entered upon the discharge of his duties as guardian. Under the advice of Lynch, French, as executor of the estate of Hammon, filed a report in the county court, charging himself with the entire proceeds of the sale of the minor’s land. Lynch then recovered a judgment against French, executor, for the amount, receipted the judgment, and charged himself, as guardian, with the amount. No money was, however, paid over by Lynch to French, or from French to Lynch, but Lynch had squandered the money long before French qualified as executor of Hammon’s estate. Subsequently, failing to give additional security on his bond, as he was ordered to do by the county court, Lynch was removed, and Joseph Beam ivas appointed guardian of the minor. Beam sued Lynch and Fogarty on their official bond, to recover the money Lynch had reported as coming into his hands as guardian of Apple-gate, and which had been squandered by Lynch, and such proceedings were had that Fogarty, the surety of Lynch, was compelled to pay Beam the money Lynch had received belonging to Applegate. Fogarty, having paid the amount, filed this bill to be subrogated to all the rights of Beam and Applegate, against appellants and French.

It is a fact concerning which there is no controversy, that Lochenmeyer took up the two notes which were given for the land secured by mortgage, and gave his own notes, signed by himself and Stoll, payable to the order of Lynch, which he subsequently paid to the persons who had purchased the notes of Lynch. But the question arises, whether this constituted a payment of the indebtedness for which notes had been given payable to Jacob Hammon, guardian of Edward Applegate. It will be remembered that these notes 'were lifted on February 14, 1876, and that Lynch did not become guardian of the minor until June 11, 1877. He did not at this time act, or even profess to act, in the capacity of guardian. It is apparent, from the evidence, that he had no right, title or interest whatever in the notes. He had them in his possession when Hammon died, and after his death continued to hold the notes as mere custodian. It is a plain proposition, if the notes had been paid to a person authorized to receive payment, the indebtedness would have been extinguished. It is also equally plain that payment of a note to a person who has no authority to receive the money does not extinguish the debt. Here, Hammon, the guardian, died, leaving the notes in the possession of Lynch. It nowhere appears that Hammon, while living, had authorized Lynch to collect; but if he had, that authority was revoked by his death, and Lynch could not then collect or convert the notes to his own private use. ■ He had authority, merely, after Hammon’s death, to hold the notes in his possession until some person authorized should call upon him for them. Appellants are in no position to claim that they paid the notes innocently or in good faith. They knew that the- notes were given for land that belonged to the minor. They also knew that the notes were payable to the guardian, that he was dead, and that the money which the notes represented was trust funds, and knowing these facts, they had no right to take up the notes from Lynch by giving others payable to his order, nor can they claim any rights by virtue of such a transaction. It may be a hardship that these parties are required to pay their notes a second time; but who is to blame ? They knew, or by the exercise of the least precaution might have known, when they obtained the notes of Lynch, that he had no authority to surrender them; and if they saw proper to deal with him, they acted at their own peril.

But it is urged that when the notes were taken up, Lynch was attorney for French, who was executor of Hammon’s estate, and as the legal title to the notes was in French, the act of Lynch was authorized. This position is not tenable. Lynch, in his evidence, does not pretend that in the surrender of the notes and mortgage he was acting as attorney of French, and French testified that he never had the notes in his possession; that he supposed Lynch held them as attorney of Hammon; that he never gave Lynch any instructions in regard to the notes. There is, therefore, no foundation in the evidence for the position. But if he had been acting as attorney of French, he could only have received payment in money. An attorney, in the absence of special authority, has no right to give up his client’s notes for paper payable to himself. The law may be regarded as well settled that an attorney has no authority to receive anything but money in payment of his client’s debt. 2 Parsons on Notes and Bills, 614, note c; Nolan v. Jackson, 16 Ill. 272.

If, then, the transaction between appellants and Lynch did not discharge the debt which belonged to the minor, Apple-gate, which we have seen it did not, it follows that Beam, who succeeded Lynch as guardian, had the right to proceed and collect of appellants the original debt. He also had the right to compel payment from Fogarty, who was surety on the bond of Lynch. Here were two remedies open to Beam. He saw proper to enforce the latter, and compelled Fogarty to pay the money due his ward, Applegate. Fogarty having paid the money, is he entitled to be subrogated to the rights of Beam, as against appellants? The rule on this subject is well stated in Eddy v. Trevor, 6 Paige, 521, as follows: “It is an established principle of equity, that sureties, or those who stand in the situation of sureties for those who pay a debt for them, are entitled to stand in the place of the creditor, or to be subrogated to all his rights as to any fund, lien or equity which he may have against any other person or property on account of the debt.” City of Keokuk v. Love, 31 Iowa, 119, is a case also in point, where it is expressly held that the equities of sureties extend to all the rights of the creditor respecting the debt which the sureties pay. In 1 Leading Cases in Equity, page 144, it is said: “Moreover, as soon as the surety has paid the debt an equity arises in bis favor to have all the securities, original and collateral, which the creditor holds against the person or property of the principal debtor, transferred to him, and to avail himself of them as fully as the creditor • could have done. For the purpose of obtaining indemnity from the principal, he is considered as at once subrogated to all the rights, remedies and securities of the creditor,—as substituted in the place of the creditor, and entitled to enforce all his liens, priorities and means of payment, as against the principal, and to have the benefit even of securities that were given without his knowledge.” In Hays v. Ward, 4 Johns. Ch. 123, Chancellor Kent says: “This right of the surety stands not upon contract, but upon the same principle of natural justice upon which one surety is entitled to contribution from another. ”

But the right of a surety to be subrogated to the rights of the creditor is by no means a new doctrine in this court. Indeed, it has been often held, as in Richeson v. Crawford, 94 Ill. 165, that it is the right of the surety, when he pays the debt of his principal, to be subrogated to whatever security the creditor had. (See, also, Rice v. Rice, 108 Ill. 199.) Indeed, when Fogarty v. Ream, 100 Ill. 366, was before us at a former term, although, perhaps, the question was not directly involved, yet it was passed upon, and held that Fogarty, upon payment of the liability imposed upon him by the bond he had signed as surety for Lynch, would be entitled to be subrogated to whatever rights Beam might have, as against appellants. If there is any case where a' surety should be entitled to the benefit of the remedies and securities that were in the power of the creditor, this would seem to be one in which the doctrine should be strictly enforced. Lochenmeyer, Stoll and Cutlip, appellants, who had given the original notes for the lands belonging to the minor, made them payable on their face to the order of Jacob Hammon, guardian of Edward Applegate. Now, when the guardian was dead, the notes not indorsed, and no new guardiap having been appointed, the exercise of the least precaution should have dictated to them that Lynch had no authority whatever to' surrender to them the notes, and accept in lieu thereof new notes payable to his order.

But it is claimed by counsel for appellants, that if the doctrine of. subrogation may be invoked, Fogarty could only be entitled to be subrogated to the rights of Lynch. No authority has been cited in support of this position, and we are aware of no case where such a doctrine has been announced. Beam, the guardian of Applegate, was the creditor, and when Fogarty, who was a security for the money due from Lynch to the guardian, was compelled to pay that money, he became subrogated to the rights of the creditor, Beam, and was entitled to enforce such securities as Beam held for the collection of the money, one of which was an action against appellants on the original notes, which had never been legally paid.

One other question remains to be considered, and that is, whether French, the executor of Hammon, is liable. It is not claimed that French ever received any money belonging to the minor, Applegate, but as executor of the estate of Hammon he filed an inventory, in which these notes were scheduled as assets of the estate. Subsequently he allowed a judgment to be rendered against him in favor of Lynch, guardian, for the amount of these notes. He also filed in the county court a report, in which he charged himself with the amount of these claims as money collected, and in the same report claimed a credit for the full amount thereof paid over to Lynch, guardian, and also filed Lynch’s receipt in proof of the payment. The records of the county court fail to disclose any liability resting on French, while they show he received the money. At the same time they disclose the fact that he paid it all out to a person lawfully entitled to receive the same,—so that, by the records, no case can be made against French. But it is claimed by Fogarty that he has a right to go behind the record and prove that no money was actually paid over by French to Lynch at the time the receipt was given. If this be true, and it is proper to go behind the record for that purpose, then it is proper to go behind it and prove that no money ever came into the hands of French. If it is right to set aside that portion of the county court record which shows that French paid over the money to Lynch, it is also right to set aside that part of the record which shows that he received the money. It is not French who asks to impeach the county court record, but it is Fogarty, and when he undertakes to dispute the truth of that portion of the record which defeats his right of action, the other portion is so closely connected with that portion as to render it manifestly unjust to exclude the evidence bearing upon it. But it is unnecessary to discuss the matter further. We do not think there is any liability resting on French.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mulkey and Scott, JJ., dissenting.

Mr. Justice Dickey,

dissenting:

The surrender of the original notes and mortgage by Lynch, and the entry of satisfaction of the original mortgage upon the record by French, administrator, occurred February 14, 1876. At that time Lynch accepted as payment and satisfaction of the old notes and mortgage, new notes, payable on their face to himself, for the amount due on the old notes, secured by adequate personal security and by a new mortgage on the land. The notes thus paid and satisfied were, in law, the property of French, the administrator. He had the undoubted right to accept the new' securities in satisfaction of the old debt, and thus charge himself with the amount due on the old securities, as assets in his hands, and had he transacted this business in person, it is obvious he could not afterwards maintain any action or suit, as such administrator, upon the original notes or mortgage. Now, when we remember that Lynch was the professional adviser and attorney of French, under whose advice and with whose professional aid his appointment as administrator had been consummated and all his subsequent administration had been conducted, and when we bear in mind that French knew that payment of some sort had been made to Lynch of a demand belonging to him, as administrator, and at once recognized the payment as though made to himself, and accordingly entered satisfaction of record of the old mortgage, I think the payment to Lynch was, in law, payment to French, and if so, as between French and the makers of the original notes and mortgage the payment should be held valid. That French regarded the payment to Lynch as payment to him, is clearly shown by the fact that after Lynch qualified as guardian, French confessed a judgment in favor of Lynch, as guardian, for the amount of that payment, as so much money received by him as administrator. Very likely, French allowed the amount of this payment to remain in the hands of Lynch, his attorney, for the reason that he expected that Lynch would qualify as guardian, in which case he would have a right to appropriate the amount as guardian. Hence, even if Fogarty be entitled to subrogation against Lynch, French and Lochenmeyer, I think the decree ought to declare Lynch primarily liable, and French as secondarily liable, and Lochenmeyer as liable only if the amount be not paid by Lynch or French.

It, however, must be noted that Lynch, by receipting the judgment against French, and by reporting the amount in his hands, after Lynch had qualified as guardian and after Fogarty had become his surety, gives prima facie evidence that at that time he had not squandered or appropriated to his personal use the new notes or money received by him for them. This cast the burden upon Fogarty to show that this was not true. The mere fact that these notes were indorsed without date, (although in some eases this raises a presumption that the indorsement was at the date of the notes,) is not sufficient to repel this conclusion; and especially this presumption should not be indulged against the fact that payments on two of' these notes are indorsed in Lynch’s handwriting, at dates after Fogarty had signed his bond. There is no direct proof that these notes did not remain in Lynch’s hands until after he qualified as guardian, and in such case they became assets in his hands, as guardian, and hence Fogarty became primarily liable for any subsequent conversion to his own use by Lynch.

Another view equally cogent, in my mind, is as follows: "When Lynch accepted these notes, he, as between himself and the makers of the original notes, undertook that the money to arise from the new notes should be applied, through the proper channels, to the use of the ward, who was the equitable owner of the original demand, and as to that duty,in equity, the makers of the original notes were merely his sureties. Now, when French, who legally owned that demand, falsely confessed that the amount had been paid to him, as administrator, he impaired the right of the makers of the original notes which they had to demand of Lynch that he should pay the amount to French. This impaired their right as sureties, and hence discharged them from liability to French, to whom, at that time, they were alone liable.

Another view still more cogent: When a man who is debtor to an estate is made administrator of such estate, and gives bend as such, it is well settled that his debt to the estate, by operation of law, becomes at once assets in his hands as administrator, for the faithful application of which his surety becomes liable on his bond, and this though the administrator be insolvent. I see no difference in principle between the case of an administrator and a guardian. When, therefore, Lynch became guardian, if he had before that appropriated to his own use the proceeds of the new notes, he was, in equity, indebted to the estate of his ward for the amount of the demand. Certainly he became so liable when he receipted the judgment he had recovered against French. This sum thus being assets in his hands as guardian, Fogarty became primary guarantor that Lynch would faithfully apply these assets, and hence he has no higher equity than the makers of these original notes.

The rule as to subrogation relates solely to the rights of the creditor against those whose obligations to pay are higher than the obligation of the surety seeking subrogation. If their obligations are equal, then the right of contribution, and not of subrogation, prevails. If the general rule, as stated, be adopted without this qualification, it would follow that had the makers of these original notes paid this demand to the present guardian,—being, in equity, mere securities for Lynch, —they might have had subrogation to collect this sum from Fogarty. Can it be possible that two parties can occupy such relation to a given demand that the one who pays first can compel the other to make him whole ?

Of course the decree ought to be reversed for the omission to require Lynch to pay, and requiring others to pay only on his default. It is erroneous in that it charges Lochenmeyer and others, primarily, as between them and Fogarty. It is erroneous because he was fully discharged by the giving of the new notes to Lynch, which were accepted by French as payment and satisfaction. In any view which I can take of this case, I think the decree ought to be reversed. -


source: Caselaw Access Project

author:
Mr. Justice Mulkey
      Mr. Justice Scott :

license: Public Domain

text:
    The Chicago and Northwestern Railway Company v. The Chicago and Evanston Railroad Company.

      Filed at Ottawa November 17, 1884.

    , 1. ¡Railroad charter—construed—as to right to enter a city. A grant of power in a railroad charter “to locate, construct and maintain, and operate with horse or locomotive cars, from the city of Chicago to any point in the town of Evanston, a railroad,” etc., without any express or implied restrictions, will authorize the grantee, so far as the State is concerned, to lócate its tracks and fix its Chicago terminus at any point in the city, as “Chicago,” simply, includes every part of Chicago.
    2. Eminent domain—;jurisdiction of Superior Court of Cook county— in proceeding for condemnation. The Superior Court of Cook county being in law a circuit court, it follows that where a special statutory jurisdiction is conferred on the circuit court, the Superior Court will, by the same act, though not named, acquire a like jurisdiction, and vice versa. The Superior Court therefore has jurisdiction in applications for the condemnation of land under the Eminent Domain act.
    3. Same—of the right to have condemnation—and how the right may be questioned. The fact that a railway company has been organized under a valid charter, and is shown to have done corporate acts under it, is sufficient to establish a prima facie right to take private property under the Eminent Domain act. And this prima facie right can not properly be questioned in a collateral proceeding. That must be done by quo warranto.

    4. Same—taking property already devoted to public use—and whether there is a change of use so as to justify the taking. In the absence of a clearly expressed intention to the contrary, the courts will not so construe a railway charter as to authorize one company to take the property of another already devoted to a particular public use, for the purpose of applying it to the same use. When there is no change in the use, it becomes a matter of mere private concern, without at all affecting the public interests. This rule applies only when the taking would result simply in a change of ownership, without affecting the use of the property sought to be taken.
    5. The condemnation of a piece of ground for a right of way, and the construction of an abutment thereon for a bridge essential to its use as a right of way, which piece of ground had before been used by another railroad company for a wharf or dock for the receiving and discharge of freights, is not a condemnation for the same public use as that to which the property was already being applied.
    6. Same—requiring plans and profiles of the proposed work, in order to show its character, etc. Where land in a city is sought to be condemned for a right of way over a river upon which the land abuts, and upon which to build an abutment for a railroad bridge across the river, and the owner (another railway corporation) has other lands adjoining that sought to be taken, that may be injured more or less, depending upon the character and nature of the structure to be erected on the land sought to be condemned, it is error in the court to overrule defendant’s motion to require the petitioner, before the trial is begun, to exhibit its plan and profile of its proposed railroad across the land, and to file such plans as will show to what use the petitioner designs devoting the land it seeks to condemn, and what it proposes to put upon said land, as, tracks, bridges, abutments, or otherwise.
    7. Same—measure of damages—of the modes of shounng the value of property sought to be taken. Where property sought to be condemned for a public use has a market value, and is not devoted to any particular use, making it more valuable to the owner than to any one else, such value affords the true measure of compensation to be paid for it; but when the proof tends to show the property has no market value by reason of the particular use to which it is being applied, it is error to instruct the jury that the compensation should not be less nor more than its fair market value, and to refuse all instructions based on the theory that it has no market value.
    8. Where, in the nature of things, there can be no market value of a piece of property by reason of being used in connection with and as a part of some extensive business or enterprise, its value must be determined by the uses to which it is applied. In such case, the market value of neighboring lands, differently circumstanced, may be shown, as throwing some light on the question, but it falls far short of furnishing a true or adequate test of the value of the property.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

      On the 7th of July, 1883, the Chicago and Evanston Bail-road Company filed in the Superior Court of Cook county a petition to condemn, for railroad purposes, a triangular piece of land lying on the west side of the north branch of the Chicago river, and on the north side of Kinzie street, in the city of Chicago, having an eastern front on the river of one hundred and three feet, and a southern front on Kinzie street of seventy-two and five-tenths feet. The land in question belonged to the Chicago and Northwestern Bailway Company, the defendant in the petition. On the 24th of September following, the defendant filed a plea in abatement in the cause, to which the court sustained a demurrer. The defendant subsequently, on the 12th of March, 1884, filed a motion, supported by affidavits, to dismiss the petition, on the ground the petitioner had no right to take the property for the purposes set forth in the petition. This motion was overruled. On the 7th of April, 1884, the defendant filed an answer to the petition, and also a cross-petition, setting up that it owned a large amount of real estate contiguous to and in the immediate vicinity of that sought to be taken, particularly that lying immediately north of it and fronting on the Chicago river; also, that its own road, and railroad interests and business generally, would be seriously injured by the taking of that particular piece of land and using it in part for the site of a bridge to be built across the river at that place, as was proposed to be done by the petitioner. Various other matters relied on as showing the Chicago and Northwestern Bailway Company would be specially injured by condemning the land for the purposes proposed, not necessary to be noticed in this statement, were offered.
    The trial commenced on the 9th and ended on the 15th of April, 1884, resulting in the assessment of the damages of the Chicago and Northwestern Bailway Company at $28,000, upon which final judgment was entered by the court, and the defendant appealed.

      The instructions given to the jury in the case are as follows :
    On the court’s own motion:
    “In this case the jury are to determine what will be just compensation to the respondent, .the Chicago and Northwestern Bailway Company, for its property taken or damaged by the appropriation of the piece of land described in the petition, to be used by the petitioner for the purpose of its railroad, including the erection thereon, on a part thereof, of an abutment for a railroad bridge across the north branch of the Chicago river, and the use of this abutment in operating or swinging sqch bridge. Such compensation for the land actually to be taken should not be less nor more than the fair market value, on the 7th of September, of the land thus described, considered as a part of the lot 1 from which it will be taken. The jury are also to determine, from the evidence, whether, in addition to such market value, damages should be awarded to the respondent, and if so, what amount of damages. In determining the latter question, the jury should consider all the evidence relating to the extent of the respondent’s entire lines of road terminating in Chicago, and its business transacted over the same, and its entire dock or wharf property, and, generally, its entire real property constituting its terminal facilities at Chicago, on the 7th day of July last. And if the jury find, from the evidence, that this piece of land proposed to be taken, in the condition in which it was on the 7th day of July last, did constitute such a material portion of such terminal facilities that by taking the same the respondent will necessarily be substantially inconvenienced and damaged in the operation of its lines of road, then the jury should award such damages therefor as the evidence in this regard shall warrant; but if the jury shall believe, from the evidence, that no such inconvenience or injury will necessarily be thus caused, then no such damage should be awarded. And in this connection the jury are instructed that nothing should be allowed for merely imaginary or speculative damages, or for such remote or inappreciable damages as the imagination may conjure up, and which may or may not occur in the future. In considering this question of damages, the jury should also consider the evidence relating to the effect upon the wharfing rights attached to the respondent’s land adjoining and extending northerly from the land described in the petition, by the building of such abutment, and its use in operating the contemplated railroad bridge. And inasmuch as the petitioner has presented in court, upon this trial, a plan of bridge as the one adopted by it, and has stipulated that the contemplated bridge shall be constructed upon such plan, the question for the jury to determine is, whether the operation of such bridge by the petitioner, in conducting its railroad business, will substantially interfere with such moorage rights, and if so, to what extent, and what amount of damages will be thus occasioned to the respondents ; but if the jury shall find, from the evidence,-that such operation and use of such a bridge will not materially interfere with such moorage rights, then no damages should be awarded in this respect. The jury are further instructed, that in determining these questions of compensation and damages, they should proceed upon the knowledge which they may have derived by view of the property in question, with its surroundings, together with a consideration of all the evidence, including the opinions of witnesses, which has been introduced on this trial; and though it is the duty of the jury to fairly consider and weigh such opinions, they are not bound to take them as true and correct, or to accept them as conclusive, but should exercise their own judgment, upon consideration of the whole case.”
    Petitioner’s third instruction:
    “The court further instructs you, that though the market value of the property sought to be taken is the sum that the respondent is entitled to recover as damages for the land actually taken, (if you find, from the evidence, that such land had a market value,) still all evidence tending to establish that sum should be considered; but your inquiry should be confined to the -market value of the property sought to be taken, on the 7th day of July, 1883, if you believe, from the evidence, that such land had a market value at said date. And the purposes for which such property was used before and at that date, and designed, its location and advantages as to situation, are proper matters of consideration by the jury. ”
    Defendant’s third instruction:
    “And in determining the compensation to be awarded to the defendant, the jury are to consider the use and adaptability for railroad purposes of the property in controversy, whether as a part of the terminal facilities of the defendant, or otherwise, as disclosed by the evidence; and the jury may consider, for the purpose of ascertaining the capacity and adaptability of the premises for railroad uses, the nature and amount of business transacted by the defendant thereon, as well as the facilities afforded by said premises for transacting such business, now and in the future. ”
    Mr. B. C. Cook, and Mr. Melville W. Fuller, for the appellant :
    The petition must show on its face every fact necessary to the exercise of the right of eminent domain. Smith v. Railroad Co. 105 Ill. 518.
    A corporation has only such powers as are expressly given, or are necessarily implied from those given. Caldwell v. City of Alton, 33 Ill. 416; Chicago v. Rumpff, 45 id. 90;. People v. Clerk of Board of Trustees, 45 id. 112.
    For every corporate act, authority therefor must be found in a grant or a requirement of a statute. Webster v. People, 98 Ill. 347; Bank v. Godfrey, 23 id. 602; Thomas v. Railroad

      Co. 11 Otto, 82; Railroad Co. v. Railroad Co. 11 C. B. 775; Railroad Co. v. Hawk, 5 H. L. Cases, 331.
    This rule is applied in all its rigor when an attempt is made to construe a corporate grant so as to interfere with a previous grant of the same kind. Pennsylvania Railroad Co.'s Appeal, 93 Pa. St. 159; 3 Am. & Eng. R. R. Cases, 507.

    A charter will not he so far stretched as to allow the taking of corporate franchises, unless absolutely essential to the carrying out of the purposes which the legislature has contemplated. Matter of City of Buffalo, 68 N. Y. 167; Hickock v. Hine, 18 Ohio St. 92; Matter of Ninth Avenue, 45 N. Y. 729; Bridgeport v. Railroad Co. 36 Conn. 255; Railroad Co. v. Faribault, 23 Minn. 167; Bridge Co. v. Middlesex, 10 Pick. 270; Railroad Co. v. Railroad Commissioners, 118 Mass. 561; The State v. Noyes, 47 Maine, 189; Green’s Brice’s Ultra Vires, (2d Am. ed.) 377; Rex v. Pease, 4 B. & A. 30; Regina v. Railroad Co. L. R. 2 Q. B. 310; Attorney General v. Railroad Co. L. R. 4 Ch. App. 194; Pugh v. Railway Co. L. R. 12 C. A. Div. 274; New York City v. Telegraph Co. 21 Hun, 261; The State v. Railroad Co. 35 N. J. L. 328.
    If the powers of the subsequent charter can by reasonable intendment be exercised without the appropriation of property actually held and used for another public use, it must be done. Mills on Eminent Domain, 46; Railroad Co. v. Railroad Co. 75 Va. 780; Proprictors of Locks and Canals v. City of Lowell, 7 Gray, 226; Railroad Co. v. Railroad Co. 35 Mich. 265; Railway Co. v. Railway Co. 81 Ill. 583; Hatch v. Railroad Co. 18 Ohio St. 119.
    The court erred in refusing to require the petitioner to file a plan or specification of the bridge across the north branch of the Chicago river, as a basis for determining the compensation to be paid. Railroad Co. v. Kirby, 21 Ill. 121; Railroad Co. v. Railway Co. 105 Ill. 394.
    The owner of property taken for a public use is entitled to recover its actual value, and if the property is devoted to a special use, and for that reason has a special value to the owner, he may recover for this. Railroad Co. v. Kirby, 104 Ill. 345; Railway Co. v. Railroad Co. 100 id. 30.
    The term “property” embraces every kind of valuable right or interest, and any act in relation to that property which deprives the owner of its ordinary use, is a taking, in a constitutional sense. Rigney v. City of Chicago, 102 Ill. 64; Pumpelly v. Green Bay Co. 13 Wall. 177; Sinnickson v. Johnson, 2 Harr; 129; Cornell v. Newburgh, 2 Johns. 162; Roe v. Granite Bridge Co. 21 Pick. 334; Canal Supervisors v. People, 17 Wend. 604; Luckland v. Railroad Co. 31 Mo. 180; Stevens v. Middlesex Canal, 12 Mass. 426; Pratt v. Brown, 3 Wis. 613; Walker v. Shepardson, 4 id. 511; Fisher v. Horicon Iron Co. 10 id. 353; Newell v. Smith, 15 id. 104; Weeks v. City of Milwaukee, 10 id. 242.
    : The property owner is entitled to recover the value of the property, or damages, according to the situation of the property at the "time when the petitioner acquires the same. The owner is entitled to any .advance before the condemnation is complete, by improvements not made expressly to enhance the damages. Railroad Co. v. Denman, 10 Minn. 267; Railroad Co. v. Murphy, id. 500; Hursh v. Railroad Co. 17 id. 439; Warren v. Railroad Co. 18 id. 384; Driver v. Railroad Co. 32. Wis. 569; Railroad Co. v. Hopkins, 90 Ill. 321.
    As to the proper measure of damages in this case, see Railroad Co. v. Railroad Co. 67 Ill. 147; Jones v. Railroad Co. 68 id. 386; Railroad Co. v. Henry; 79 id. 292; Mix v. Railroad Co. 67 id. 321; Seneca Road Co. v. Railroad Co. 5 Hill, 174; Railroad Co. v. County of Plymouth, 14 Gray, 155; Railroad Co. v. Railroad Co. 35 Mich. 265.
    Where the property has no market value, it is to be taken in statu quo, and considered with reference to the use to which the owner might put it in its then condition. Beckett v. Railroad Co. L. R. 3 C. P. 82; Railroad Co. v. Van Horn, 18 Ill. 258.

      Mr. E. Walker, for the appellee:
    The franchises and property of a corporation are subject to the right of eminent domain, the same as the property of natural persons. Railroad Co. v. Town of Lake, 71 Ill. 333; Railway Co. v. Railroad Co. 97 id. 507; East St. Louis v. Railroad Co. 108 id. 265.
    The petitioner corporation being a de facto corporation, has the right to proceed under the Eminent Domain act.
    The Superior Court of Cook county is given the same powers, and placed on the same footing, as circuit courts. Jones v. Albee, 70 Ill. 34; Hall v. Hamilton, 74 id. 437.
    The petitioner was not bound to file plans and specifications with its petition. It was only required to .state such facts as are made necessary by the statute. Smith v. Railroad Co. 105 Ill. 511.
    Counsel also discussed at some length the instructions as to the measure of the compensation to be awarded, and the other points made by the appellant.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The first question to be considered, and which may properly be said to have precedence of all others, is one of jurisdiqtion. By the second section of the Eminent Domain act, any one desiring to avail himself of its benefits is authorized to apply to the judge of the circuit or county court, .by filing with the clerk of such court a petition, etc. The point is now made that the petition in this case was filed in the Superior Court of Cook county,—a court which is not mentioned in the act,— and it is therefore claimed the Superior Court had no power or jurisdiction to take cognizance of the case. Whatever force there might otherwise be in the point, this court is committed to the doctrine that the Superior Court is, in legal effect, a circuit court. (Jones v. Albee, 70 Ill. 34; Hall v. Hamilton, 74 id. 437.) It follows, therefore, where a special statutory jurisdiction is conferred on the circuit court, as was done here, the Superior Court will, by the same act, though not named, acquire a like jurisdiction. And so, vice versa. Such being the case, of course the point is not well taken.

The next question in order is the claim that the trial court erred in not dismissing the petition, on motion. Several reasons are assigned why the ruling of the court in the respect mentioned is erroneous, namely: First, because the property sought to be taken was already devoted to a specific public use; second, because the petitioner had no right or power to use the property for the purposes proposed, particularly for the purpose of building an abutment thereon for a bridge; and third, because the petitioner had no power to enter the city, nor to operate a steam railroad within the city. We do not think any of the reasons assigned are sufficient to have justified the court in dismissing the petition, hence there was no error in refusing to do so.

The Chicago and Evanston Bailroad Company was incorporated by a special act of the legislature, on the 16th day of February, 1861. By the second section of the act the company was authorized “to locate, construct, maintain and operate, with horse or locomotive cars, from the city of Chicago to any point in the town of Evanston, a railroad, with single or double tracks, turn-outs, sidings, depots, and all other necessary appliances. ” By the fifth section the com-, pany is given the usual powers to acquire the right of way, by purchase, or by condemnation, where it can not be otherwise obtained. There was an organization of the company, and various acts done under it, before the present constitution went into effect, though nothing done towards building the road itself before that time. The charter expressly prohibited the company from laying down its tracks in certain specified streets of the city of Chicago, but as none of these streets are occupied, or proposed to be occupied, by its- tracks, this limitation, on the powers of the company is unimportant, except so far as it may, by implication, tend to show the legislature contemplated the company would, in locating and constructing its road, enter the city. As “Chicago,” simply, includes every part of Chicago, we think a legislative grant to build and operate a railway from Chicago to another given point, without any express or implied restrictions, would authorize the grantee, so far as the State is concerned, to locate its tracks and fix its terminus at any point in the city.

With respect to. the claim the property in question was already devoted to a public use, and could not therefore be taken, it is submitted that we -fully recognize the rule that courts, in the absence of a clearly expressed intention to the contrary, will not so construe a railway charter as to authorize one company to take the property of another, already devoted to a particular public use, for the purpose of applying it to the same use. Where there is no change in the use, it becomes a matter of mere private concern, without at all affecting the public interests. It is not to be presumed the legislature, in granting a charter to build and operate a railroad or other structure of a public character, would purposely license the grantee to thus interfere with mere private rights. This, however, is a rule of construction only to be applied in cases where the legislative intent is not manifest, and herein the judicial department of government exercises its chief control over the subject. Whether a charter which assumes to confer authority upon a company to take private property for a given purpose, conforms to the requirements of the constitution, and whether the company, in appropriating and making compensation for the property, has proceeded according to law, are questions, in case of controversy, for the courts. Subject to these limitations, the legislature has unlimited control over the subject. As the charter of appellee is not assailed on constitutional grounds, we therefore assume, without discussion, it conforms to the requirements of the cqnstitution under which it was adopted. Nor is any question made as to the public character of the use to which the land in controversy is, sought to be applied, but the contention is, that this land is already devoted to a public use, and that as there is nothing in. the charter that expressly or by necessary implication authorizes the taking of this particular piece of land, there is no authority to take it at all,—and copious extracts from adjudicated cases are cited .in support of .this position. An examination of these cases will show that none of them0are, in their material facts, like the case in hand, and hence can have no controlling influence upon it. If the doctrine contended for exists to the extent claimed, no property belonging to a railroad company, under an ordinary charter, could be taken by another at all,—a position that no one would contend for as an abstract proposition. The rule of construction above adverted to is applicable only where the taking would result simply in a change of ownership, without affecting the use of the property sought to be taken. It is hardly necessary to observe that it does not follow because the two uses are both public, that they are, therefore, within the meaning of the rule, necessarily the same. The land sought to be taken in the present case, at the time of filing the petition had no building or structure of any kind upon it, though it was used by the appellant for the purpose of receiving and discharging freights in conducting its business by rail and river. It is true that prior to that time the appellant had - contracted with various parties for the building of a brick freight-house on the premises, and the same has subsequently been built; but for the purposes of the question in hand, .that is unimportant, for the use to which the property was applied before the building of the freight-house was just as much a public one as it was afterwards. The question here is, does appellee seek, to take and appropriate the property to the same use to which it was applied by appellant at the time of filing the petition ? We think not. As already seen, it was then used as a kind of -wharf or dock for the purpose of receiving and discharging freights, but appellee now seeks to condemn it as a part of its right of way through the city, and as the line of its proposed road leads across the Chicago river at that point, it will, of necessity, require the building of a bridge, which must be supported by an abutment on the west side of the river, built upon the lot in question. The proposed bridge, with all its supports and appurtenances, with the company’s tracks laid thereon, will constitute appellee’s road at that point. Surely, the condemnation of this piece of ground for a right of way, and the construction of an abutment thereon for a bridge, which is essential to its use as a right of way, can not with any degree of propriety he called taking-it for the same use it had previously been applied to. The difference in the two uses, in this case, is certainly greater than where one company takes a part of another’s tracks for a crossing, and the right to do this is not at all questioned by any one. The lot sought to he taken constitutes the extreme southern portion of a continuous block of -ground belonging to appellant, lying on the West side of the north branch of the Chicago river, and having an eastern frontage on the river of three thousand feet. To say that this extensive block of ground, in the heart of a great commercial city like Chicago, where there is a constantly growing demand for additional railroad facilities, can not he crossed at all, by any other railroad entering the city, to meet the business demands of the place, is a proposition to which we can not give our assent. The very statement of it shows its unreasonableness.

With respect to the second reason assigned why the petition should have been dismissed, namely, that the petitioner had no power to apply the property to the uses proposed, it has, in effect, been answered already. The company, as we have just seen, was organized under a valid charter, and is shown to have done corporate acts under it. That was sufficient to establish a prima facie right to take the property in question for the purposes set forth in the petition, and,this prima, facie right can not be successfully assailed in a mere collateral proceeding, as is sought to be done here. Appellant’s counsel cite several cases from other States as laying down a contrary rule. This is denied by counsel for appellee. As the Eminent Domain law in each State is regulated by special statutes applicable to such State alone, and as a decision of this kind may be largely controlled by the rules of practice or procedure .in the State where the question arises, we do not deem it necessary to critically examine the cases referred to, with a view of determining this controversy between counsel, for whatever rule the courts may have laid down in other States in giving a construction to their own statutes, the rule as above stated has already been recognized by this court in Peoria and Pekin Union Ry. Co. v. Peoria and Farmington Ry. Co. 105 Ill. 110, and we are not inclined to depart from it.Besides, it is more in harmony with the decisions of this court on other analogous questions. Proceedings in the nature of a quo loarranto would be the proper remedy, if it is desired to question appellee’s right to exercise the corporate franchises conferred by its charter.

As to the claim petitioner had no power to enter the city, nor to operate a steam railroad Within it, it is sufficient to say, that is a matter entirely between the city and appellee. The right of appellee to maintain this proceeding is purely statutory, and is wholly independent of any action the city authorities might take on the subject. Appellee is proceeding under its charter and the Eminent Domain act, and not under the ordinances of the city. Chicago and Western Indiana Railroad Co. v. Dunbar et al. 100 Ill. 110.

Before the commencement of the trial, the appellant entered and filed in the cause the following motion:

“Now comes the defendant, and on the affidavit of B. C. Cook, herewith filed, moves the court for a rule on the petitioner, the Chicago and Evanston Bailroad Company, to ex-Mbit its plan and profile of its proposed railroad across the land proposed to be condemned, and to file such plans as will show to what use said petitioner designs devoting said land which it seeks to condemn, and what it proposes to put upon said land, as, tracks, bridges, abutments, or otherwise. ”

The affidavit in support of the motion set forth that appellant was the owner of divers pieces of land contiguous to the land sought to be taken, which would be damaged by the construction of appellee’s road, and that the furnishing of such plan and profile was necessary to a proper and intelligent presentation of appellant’s claim for damages; that it was impossible for appellant to determine to what extent these several tracts would be daihaged, without some statement of the manner in which the road of petitioner was to be constructed, etc. The court declined to enter such rule, and overruled the motion. We have no hesitancy in holding the court erred in its ruling upon this question. The rule should, at all events, have been entered so as to have afforded appellee an opportunity to assign any good reason, if any it had, why the plan and profile in question should not be furnished. Even a casual examination of the record will demonstrate that the extent of injury to the property and business of appellant, by the appropriation of the lot sought to be taken, depended largely upon the character of the structure to be placed upon it, including the bridge crossing, and the manner of operating the bridge when completed. And if there were any doubt of the necessity of such a plan and profile, it is at once dispelled by a reference to the manner in which the examination of witnesses was conducted, with a view of getting their opinions on the question of damages. Appellant’s counsel took the position that in the absence of such plan and profile they had a right to assume the structures in question would be of such a character, and be operated in such a way, as to inflict the greatest possible injury to appellant’s adjacent property and business. Appellee earnestly-dissented from this position, and proceeded in its investigation upon the very reverse of that theory. The opinions of appellant’s witnesses were taken, or sought to be taken, first upon one plan and then upon another, when it was patent that it was a-matter of pure conjecture whether any of the plans were correct, and,' as it subsequently turned out, none of them were correct. All parties, the court included, were evidently groping their way in the dark. This is manifest from some of the incidents of the trial, from which we take the following:

Mr. Cook: “We object, on the ground that they have no right, when they condemn this property for the general use which they might use it for, to limit the damages which would result from the least, damaging use which could be made of' the property.

The Court: “The question before the court is,’what will be the necessary damage to the property north and adjoining, by the use of the pier. Now, it must be a necessary damage to the use of the pier, too, and not some speculative damage. And who is to state what kind of a bridge? Are you to dictate the kind of bridge ? All we can do is this: you show what kind of á bridge they might build, and they show what kind of a bridge they might build, and then the jury will say what kind of a bridge they will build, probably. I don’t know any other way to get at it.”

This looks a good deal like confusion doubly confounded, all of which might have been avoided by allowing appellant’s motion. This motion was in the nature of an application for a bill of particulars, which is demandable in all kinds of actions and proceedings where, by reason of the generality of the claim or charge, the adverse party is unable to know, with reasonable certainty, what he is required to meet. (1 Tidd’s Practice, 1st Am. ed. 334-336.) The rule applies even to criminal proceedings, as well as civil. Wharton, in his work on Criminal Law, vol. 3, sec. 3156, says: “Whenever the indictment is so general as to give the defendant inadequate notice of the charge he is expected to meet, the court will, on his application, require the prosecution to furnish, him a bill of particulars of the evidence intended to be relied on. ” The practice in this respect is founded on the clearest principles of justice, and should not be departed from in any case where the circumstances require an application of the principle. The principle, as applicable to condemnation proceedings, was first recognized by this court in Railroad Co. v. Kidder, 21 Ill. 131, which is cited with approval in Railroad Co. v. Railway Co. 105 id. 388. It is true, the direct question whether a defendant may, as a matter of right, demand specifications of the character of the improvement proposed to be made, was not presented in either of these cases; but they do hold that the petitioner has the right to introduce them on his own motion, and if this may be done, a fortiori the defendant has the right to demand them where they are essential to a proper understanding of the case. The fact that appellee did, after the evidence in chief was all in, file such specifications, does not at all cure the error. The only purpose they could then serve was to present to the jury a case to which appellant’s evidence did not relate. In short, the manner in which the case was tried, resulting from the court’s ruling on this question, was unfair to the appellant.

We are also of opinion the law in respect to the measure of damages, under the peculiar facts of this case, was not accurately laid down by the court. As general propositions, the instructions may be admitted to have been substantially correct; yet, as is not infrequently the case, the special circumstances, in our opinion, required modifications and limitations which they do not contain, and without which they were calculated to mislead. When the evidence was in, the counsel on either side asked, altogether, some thirty instructions, all of which were refused except the third instruction of appellant and also the third instruction of appellee, which were given. In lieu of the refused instructions on both sides the court gave a general charge, consisting of a number of propositions, which, together with the two instructions just referred to, were intended to cover the whole ground. We do not think they did. In respect to the compensation to be made for the property actually taken, the court, in the instruction prepared by it, told the jury it “should not be less nor more than its fair market value ” on the day the petition was filed. One of the controverted questions in the case was, whether, as a matter of fact, property circumstanced as this was, had any market value in that vicinity. We think the evidence tended to prove it had not, whatever the weight of evidence may have been on that question. And as the court had refused all instructions, with the exception above mentioned, presenting this aspect of the case, and had undertaken to instruct the jury fully with respect to their duty, it should have told them how the amount of compensation was to be determined if the proofs failed to establish a market value for property situated as that was. This the court did not do. In most cases the rule laid down by the court would be correct, but there are many instances where, if thus laid down without qualification, the rule would clearly be misleading. Indeed, in all cases where a piece of property, by reason of having been applied to a particular use, has a special value to the owner, the rule announced by the court would be improper, and if observed by the jury, would necessarily lead to an Unjust- result. It is claimed by appellant, and it will not be denied that thé evidence tends at least to show, that this particular piece of ground constituted a part of the terminal facilities of appellant’s great railway, extending thousands of miles, and consisting of numerous divisions and branches. The lot in question is at present, and for years past has been, used in transferring freight to and from the company’s tracks, to the lake, and is accessible to all the divisions of appellant’s road. It is also claimed by appellant, and the evidence tends to prove the fact, that no other property in that vicinity so essential and desirable for the purposes of the company’s business can be obtained if that is taken. . Now, it is manifest that by reason of the use to which this property is applied, and its connection with the company’s business generally, it has a special value to the company which it does not have to any one else, and which the general market value of other property in that locality not thus circumstanced throws but little, if any, light upon, much less furnishes a rule by which to determine its value. Strictly speaking, the market value of anything is determined by what it would sell for in market in due course of business, and this is ascertained by actual sales or offers for like articles. This applies to land as well as anything else. But the term is sometimes used in a more extended sense, as including the estimation which well informed persons would put upon an article in the absence of a market value, in the strict sense of that term, and this kind of evidence is always admissible to show value. We know, as á matter of common experience, that railway companies rarely, if ever, sell out their tracks, depot grounds, or other like property, by piecemeal. At least such transactions, we apprehend, are of so rare occurrence as to afford no evidence of a market price for that kind of property. It is true, in this case proof was made of several sales of land in the vicinity of the property in question, designated by the witnesses as dock property but none of the pieces mentioned as having been sold were situated as the property in dispute is. It is true, the latter, like tho*se, is dock property, but it is something more. It is a part of a great railroad property, and is an important factor in the handling and transportation of freight, in the heart of a great city, by the company owning it. Many illustrations might be given where property evidently has no market value, but one will suffice. Take the case of a railroad crossing. The value of the part of the track taken for such crossing can not be ascertained by any reference to market values, and if determined by the value of land taken at customary prices of land in the neighborhood, the value in most cases would be inappreciable; and yet to the company who owns the track it always has a substantial value, that well informed, intelligent railroad men would readily know how to estimate. Where, in the nature of things, there can be no market value of a piece of property, by reason of being used in connection with and as a part of some extensive business or enterprise, its value must be determined by the uses to which it is applied. While in such cases the market value of neighboring lands differently circumstanced may be looked to as throwing some light upon the question, yet that alone would fall far short of furnishing a. true or adequate test of the value of the property. As was' said in Railroad Co. v. Kirby, 104 Ill. 345: “The value of land consists in its fitness for use, present or future, and before it can be taken for public use the owner must have just compensation. If he has adopted a peculiar mode of using that land by which he derives profit, and he is to be deprived of that use, justice requires he should be compensated for the loss. That loss is the loss to himself. It is the value which he has, and of which he is deprived, which must be made good by compensation.” Substantially the same idea is well expressed in the English case of Beckett v. Midland Railway Co. L. R. 3 C. P. 82. It was there said : “The property is to be taken in statu quo, and to be considered with reference to the use to which any owner might put it in its then condition.” This statement we regard as quite accurate, and it will be observed it fully meets the ease where the property sought to be taken has some special value to the owner, by reason of having adopted some particular use of it. This might happen on a farm, as well as in a city or town. For illustration: Suppose the owner of a farm concludes to go into the dairy business, and proceeds to spend several thousands of dollars on his farm in preparing stalls and sheds for his cows, and in making suitable preparations for the handling of the milk and converting it into butter and cheese. When the farm is thoroughly fitted up for this purpose, it is very clear it would have a special value to him that it would not have to any one else, unless to some one who should want it for the same purpose. One who wanted it for mere farming purposes could afford to pay but little more for it op. account of its adaptation to the dairy business; and assuming that was the only dairy farm in that locality, it is clear there could be no market value for a farm thus situated, while there might, and probably would, be a market value for farms like that adapted to farming purposes merely. Suppose, in the case we have put, a railway company having the right to locate its road across this farm, so locates its tracks as to completely destroy all the improvements that have been made in fitting it up for dairy purposes, but not at all injuring the farm otherwise.- Now, is it not manifest that in such a case to limit the owner’s compensation to the market value of the land taken, would be grossly unjust and inadequate ? And yet, in principle, we see no difference between the case suggested and the one in hand. In condemnation cases the owner of the property taken is not required to make any pecuniary sacrifices at all. He is entitled to whatever the property is worth to him, or any one else, for any purpose to which it is adapted; but the special uses or purposes to which the property is adapted must bé real,— that is, founded on facts capable of proof,—and not merely speculative or imaginary.

Again, we think the court was, at least in one respect, inconsistent in its rulings, which operated injuriously to the appellant. When, as before seen, it was asked to require the appellee to furnish a -plan and profile of the bridge and crossing, it refused, telling appellant’s counsel, in substance; they might assume appellee would build any kind of a bridge they pleased, and then go on and take the opinions of witnesses as to how much appellant would be damaged by building that kind of a bridge; yet when appellant attempted to proceed upon the theory suggested by the court, it was not permitted to do so. This statement is verified by numerous rulings of the court. One will suffice as an illustration: Whitman, who seems to have been a competent witness to answer the question propounded, was shown a tracing map, which appellant’s counsel assumed to be a representation of the river crossing and improvement to be made by appellee, and was asked in respect to it the following question: “Having examined the tracing and the map, what, in your judgment, would be the effect upon the other contiguous property next to this little piece to be taken of a bridge constructed in the ordinary way at that point?” The court, on objection by appellee, refused to permit the question to be answered. This was clearly improper, in view of the theory upon which the court required the ease to be tried.

As the present opinion has already reached an unwarrantable length, without discussing other questions presented by the record we will say in conclusion, in a general way, that upon the whole case we are of opinion the appellee shows a right to have the land in question condemned for thepurposes stated, upon making due compensation, to be ascertained in the manner we have indicated. So far as results are concerned, this practically covers the whole ground. The most important questions presented by this record, and not noticed, or but partially considered in the present opinion, are fully met and considered in the case of McCartney, Attorney General, et al. v. Chicago and Evanston Railroad Co. et al. post, p. 611.

The judgment will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Judgment reversed.

Mr. Justice Scott :

I concur in reversing the judgment in this case, for the reason I hold the Chicago and Evanston railroad is only a horse railway within the limits of the city of Chicago, and can not condemn the lands for the purposes mentioned in the petition. As respects the merits of the case, I do not now express any opinion.